Monday, February 26, 2007

Serbia and Montenegro off the hook. Sort of.

The headlines I read about the judgment announced today by the International Court of Justice all read something like "Court clears Serbia of genocide." After looking at this decision, and readings some commentary, I don't think it's quite that simple.

First, coming in at 351 pages (really half of that, as it's in both french and english), there's probably something to cheer and jeer at in here for everyone, just statistically speaking. I'm not going to lie to you, I haven't read this entire thing.

But, it does seem like a legally significant decision nonetheless (even if it doesn't really do much, see below, much to the chagrin of many a Bosnian). The Court does find that a state can be held liable for genocide itself, which is a bit surprising at first, given that it is traditionally seen as a criminal offense. While the treaty obligations only involve preventing and punishing those who attempt or commit genocide (more traditional State functions), the Court actually went a bit further and stated that a State could itself be held liable for genocide under the Genocide Convention. Which is intuitive, but not really stated explicitly in the treaty. State responsibility could likely be easily established via customary int'l law or an obligation erga omnes, but the Court is somewhat confined to the four corners of the treaty because it only has jurisdiction under Article IX of the Genocide Convention. It also finds that criminal convictions are not a necessary prerequisite for a finding of state responsibility.

The Court declines to attach state liability to Serbia for genocide, stating that there was a lack of sufficient evidence to prove the specific intent necessary under the Convention. I think this is kind of odd. How does an entire State have "specific intent" The Court looks to the individual criminal defendants charged in the ICTY, but how many findings of specific intent would be necessary to have state liability attach?

BUT, the Court did find that Serbia was in violation of the treaty by not preventing the genocide and by not fully cooperating with ICTY. But, there was no nexus with the eventual massacre at Srebrenica, so the Court found financial compensation not to be the most appropriate form of reparation.

What were the eventual remedies? The declaration (i.e., this judgment) that Serbia had violated its treaty obligations (aka "satisfaction"), an order that Serbia has an obligation to turn over suspected criminals to the ICTY, and noted that "direction to provide assurances and guarantees of non-repetition, would be appropriate."

So basically, after all this, Serbia and Montenegro has to say "sorry" and promise that it won't do this again. Wow. Not very satisfying. But, as many have said, it might be best to lay this to rest rather than stir up any more animosity in the region.

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