The International Court of Justice and the decriminalisation of genocide

Author: Marko Attila Hoare
Uploaded: Friday, 09 March, 2007

A critical analysis of the judgement handed down on 26 February 2007 by the ICG in the case brought by Bosnia-Herzegovina against Serbia

If anyone had still been dreaming that international courts might deliver justice to the victims of genocide, the decision of the International Court of Justice (ICJ) on 26 February, which found Serbia not guilty of genocide in the case brought against it by Bosnia-Herzegovina, should have been a final wake-up call. Ignoring what ICJ Vice-President Al-Khasawneh describes as ‘overwhelming evidence of massive killings systematically targeting the Bosnian Muslims’, the Court bent over backwards, split every hair possible and employed multiple and demonstrable logical contradictions in its efforts to avoid finding Serbia guilty of the most serious charges – genocide, conspiracy to commit genocide, incitement to genocide and complicity in genocide. This travesty of justice requires a serious re-evaluation of international law concerning genocide, as well as our attitude to it.


Admittedly, the ICJ’s decision is very far from the ‘exoneration’ of Milosevic that his apologists claim it to be. The Court found that Serbia was guilty of violating its obligation to prevent genocide from taking place at Srebrenica, which it could have done through its considerable influence over the Bosnian Serb perpetrators. The Court ruled that Serbia, even if it had not known that genocide would take place at Srebrenica, had sufficient reason to suspect that it might, therefore should have taken steps to ensure it did not. The Court also found Serbia guilty for failing to hand over Bosnian Serb commander Ratko Mladic, indicted for his role in the genocide, to the ICTY.

Furthermore, according to the ICJ’s judgement ‘it is established by overwhelming evidence that massive killings in specific areas and detention camps throughout the territory of Bosnia-Herzegovina were perpetrated during the conflict’ and that ‘the victims were in large majority members of the protected group [the Muslims], which suggests that they may have been systematically targeted by the killings.’ Moreover, ‘it has been established by fully conclusive evidence that members of the protected group were systematically victims of massive mistreatment, beatings, rape and torture causing serious bodily and mental harm, during the conflict and, in particular, in the detention camps.’ The Court accepted that these actions, on the part of the Serb forces, were consistent with genocide; the only thing lacking, in the Court’s eyes, was conclusive evidence of intent to destroy the Muslims as a group in whole or in part. This includes the period up to 19 May 1992, when Bosnian Serb forces were under the formal control of Milosevic’s Serbia and Montenegro / Federal Republic of Yugoslavia.

The Court however accepted that Bosnian Serb forces were guilty of genocide at Srebrenica in July 1995, but by that time Serbia-Montenegro / the FRY was no longer in formal command of the Bosnian Serb forces, even though it was continuing to finance and supply them and exercised considerable influence over them. In other words, for the spring of 1992 there was conclusive evidence of the guilt of Milosevic’s Serbia for massive and systematic killings of Muslims and other crimes consistent with genocide, but not enough evidence to convince the ICJ of actual genocidal intent; and for the summer of 1995, there was conclusive evidence of genocide, but not enough evidence to convince the Court of Serbia’s control over the perpetrators.

Bosnia’s case against Serbia thus fell between two stools. But this was not because Bosnia did not have a strong case, merely that the Court chose to interpret the evidence in that manner. If we are to believe the Court’s version of events, and accept that Serbia was not guilty of genocide, we must assume the following:

“Serbia, under Milosevic’s leadership, militarily conquered large parts of its neighbour’s territory, in the process of which it carried out massive, systematic massacres of Muslim civilians across the whole of Bosnian territory, coupled with additional crimes including the massive and systematic murder, torture and abuse of Muslim civilians in concentration camps, the mass rape of Muslim women and the systematic destruction of the Bosnian Muslim cultural and religious heritage. These actions resembled genocide in every respect, but there was no genocidal intent – merely the intent to carry out massive killings of a particular ethnic group.”

“These actions were carried out using the regular forces of Serbia and Montenegro (from 27 April 1992 the ‘Federal Republic of Yugoslavia’) – the ‘Yugoslav People’s Army’ (JNA). In the course of planning and executing these actions, the Serbian leadership (Serbian President Milosevic, Yugoslav defence secretary Veljko Kadijevic, Yugoslav chief-of-staff Blagoje Adzic, and Serbian and Montenegrin members of the Yugoslav Presidency Borisav Jovic and Branko Kostic), organised Bosnian Serb JNA troops into a distinct body within the JNA, with Ratko Mladic as commander. On 19 May 1992 – after massive crimes had already been committed across Bosnia - these Bosnian Serb JNA forces formally became an independent Bosnian Serb army under Mladic, no longer under Serbian control, even though Serbia continued to finance and supply them, pay the salaries of Bosnian Serb officers and provide additional assistance to them through its regular military and police forces. These Serbian-supported Bosnian Serb forces continued their systematic, massive massacres of Muslim civilians, as a result of which the Serb-occupied areas of Bosnia were mostly emptied of Muslim civilians. But there is still no genocidal intent.”

“In July 1995, however, or some time shortly before, Mladic – the Bosnian Serb commander handpicked by Belgrade – suddenly acquired a genocidal intent. Forces under his command – still armed and financed by Serbia – carried out an indisputably genocidal massacre of 8,000 Muslim civilians at Srebrenica. The Serbian regime – the same one that organised the Bosnian Serb forces, commanded them in the systematic large-scale massacring of Muslim civilians across Bosnia in a manner that resembled genocide, and continued to finance and supply them after they became ‘independent’ and continued systematically to massacre Muslims ‘independently’ – nevertheless did not intend something like Srebrenica to occur, even though they had sufficient reason t

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