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The Judicial Massacre of Srebrenica

Antonio Cassese, the first President of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and later the Chairperson of the United Nations' International Commission of Inquiry on Darfur, teaches law at the University of Florence. This is his first piece to be published on Webdiary.

by Antonio Cassese

The judgment of the International Court of Justice (ICJ) concerning Serbia’s involvement in the massacre of Bosnian Muslims at Srebrenica in 1995 should be greeted with considerable ambivalence. On the one hand, the fact that an international tribunal has pronounced on the responsibility of a state in the matter of genocide is an undeniably positive development. On the other hand, however, the Court’s decision is one of those judicial pronouncements that attempts to give something to everybody and leave everything as it was.

The Court was not supposed to hold specific individuals criminally responsible; that is the job of the International Criminal Tribunal for the former Yugoslavia (ICTY). The ICJ, which instead deals with controversies between states, was faced with Bosnia’s claim that Serbia was responsible for the Srebrenica massacre. Although the Court ruled that genocide had taken place, it decided that Serbia was not responsible under international law.

According to the Court, the Bosnian Serb generals who were guilty of this genocide, the various Mladic’s and Kristic’s, were neither acting as Serbia’s agents nor receiving specific instructions from Belgrade. The genocide could not therefore be imputed to Serbia, even if the Serbian government was paying salaries to Mladic and his colleagues, as well as providing them with financial and military assistance. Nor was Serbia guilty of complicity, because, though it exercised considerable influence over Mladic and his people, it did not know, at the moment when the genocide was taking place that such a crime was being committed.

Having “absolved” Serbia from the principal crime, the ICJ offered a sort of “consolation prize” to Bosnia, affirming that the killings in Srebrenica had the character of genocide – a conclusion already reached by the ICTY. Moreover, according to the ICJ, Serbia violated international law by failing to prevent genocide, because, though it could have thwarted the massacres, it did not, and subsequently did not help the ICTY arrest Mladic (who, notoriously, is still hiding in Serbia).

The Court’s decision thus attempts to run with the hare and hunt with the hounds. To decide whether Mladic acted on Serbia’s account when he was planning and ordering the Srebrenica massacre, the Court demanded proof that Serbian officials sent him specific “instructions” to commit this act of genocide. Obviously, such instructions would never be found. Why was it not enough to prove that the Bosnian Serb military leadership was financed and paid by Serbia and that it was tightly connected to Serbia political and military leadership?

More importantly, the ICJ’s decision that Serbia is responsible for not having prevented a genocide in which it was not complicit makes little sense. According to the Court, Serbia was aware of the very high risk of acts of genocide and did nothing. But Serbia was not complicit, the Court argued, because “it has not been proven” that the intention of committing the acts of genocide at Srebrenica “had been brought to Belgrade’s attention.”

This is a puzzling statement at best. The massacre was prepared in detail and took place over the course of six days (between July 13 and 19). Is it plausible that the Serbian authorities remained in the dark while the killing was in progress and reported in the press all over the world? It seems far more reasonable to believe that Serbia’s leaders were informed about what was going on, and that, despite this, Serbia’s military, financial, and political assistance to Mladic was never interrupted.

The fundamental problem with the ICJ’s decision is its unrealistically high standard of proof for finding Serbia to have been legally complicit in genocide. After all, one can also be guilty of complicity in a crime by not stopping it while having both the duty and the power to do so, and when, through one’s inaction, one decisively contributes to the creation of conditions that enable the crime to take place.

The survivors of Srebrenica, for whom Bosnia was seeking damage awards, will receive nothing from Serbia. And if former Serbian President Slobodan Milosevic were alive, he would be absolved of the charge of genocide. 

Copyright: Project Syndicate, 2007  (in cooperation with La Repubblica).


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The ‘right kind of monster’

In a recent article, Natasha Cica was unambiguous about the correctness of the ICJ ruling:

Fortunately in this, its first-ever ruling on an accusation of genocide — the most horrible of crimes — the court rejected those lazy leaps [of conflating ethnic cleansing with genocide] in favour of the rule of law. It offered painstaking application of relevant legal instruments and principles to the Bosnian facts, while recognising these involved human suffering on an ineffably great scale.

Cica also suggested that the correctness of the ruling is vindicated by the fact that “no partisan player felt completely vindicated.” Noting protestations of justice denied to the victims of Srebrenica, Cica waxes philosophical:

But what if we don’t get the answers we want or witness the punishment we expect? What if that’s partly because of our own unrealistic justice fantasies? Do we blame the accused for not shaping up as the right kind of monster?

These are interesting questions that would take reams to provide some kind of adequate response. Certainly the perpetrators of the Srebrenica massacre “shape up” as monsters in anyone’s language. Yet we’re to accept that the Serbian authorities’ ambiguous command relationship with the Bosnian Serb forces technically qualifies, and therefore mitigates, the former’s monstrousness.

One way or another, this ruling will probably not be the end of the matter.

Many questions, no satisfactory answers

Jenny, yes, a good (albeit brief) overview in that SMH article. And with an interesting dimension to the decision in the observation that it "backed up a previous judgement which found that the United States was not responsible for the actions of the contras in Nicaragua in the 1980s." This was from the same 1986 ruling in which the USA was ordered to pay reparations to Nicaragua, an order that was ignored.

Regarding the actual judgement, it's also interesting that Court Vice-President Awn Shawkat Al-Khasawneh (Jordan) was, with Mahiou, a fairly consistent dissenter to many of the key findings. Al-Khasawneh's dissenting opinion is also illuminating in its specific, albeit somewhat technical, discussion of the issues.

It's notable, however, that the margin of dissent in the findings was very small, so critics of the decision may be disappointed that the court could not be said to have been 'split' by any stretch.

As you've mentioned, a serious deficiency in the proceedings was the witholding of crucial evidence, which was freely available to the ICTY. This is a salient detail that stinks to high heaven, and clearly disturbed those dissenting judges.

As you say, "To fail in this way can cause more long term damage than if the case had never been heard at all." Coupled with the failures, as sketched by Geoff,  that allowed the crimes in the first place, we may indeed "wonder why people live with hate in their hearts".

If you or I were in charge we could maybe sort them all out, but at this time I'm a bit short of answers to this whole tragic, shameful catastrophe.

United Nations Complicity. European Cowardice.

There are a number of other lessons from this atrocity. Of course many people will never learn no matter what.

The massacre was not in Africa or the Middle East. It was in the heart of Europe. It was 1995. Not 1944. The victims were taken from a "safe zone" under the protection of the UN and in some cases were handed over in return for Dutch troops taken as hostages. A request for air support from the Dutch Commander in the town to the UN HQ  was rejected because it was submitted on the wrong form. The UN had however successfully managed the paperwork to refuse a request from Bosnian Moslem fighters in the "safe zone" for the return of their weapons so that they could defend themselves.  A perfunctory Dutch attack on Serb positions was stopped after dropping two bombs when the Serbs threatened to kill some hostages. The Dutch troops and their officers stood around and watched while the killers dragged their victims away. So did the rest of Europe. So did the UN.

Somehow it is impossible to imagine Australian or American officers at the scene behaving with such cowardice. Among others.

In the end it was left to the US to rescue the Moslems from genocide. There was no UN declaration authorising the use of force in the rescue.

Do the UN and Europe really expect anyone to put any weight at all on an UN or European guarantee of security? Even before Srebrenica? Is there anyone around who still seriously expect any state to rely solely on an UN or European formal guarantee for its national security?

Oh, my Godwin!

Phil Kendall: Noted.

thanks for nothing

G'day Ian MacDougall.

"One good turn deserves another" (Anon)

"Don't think of an Elephant" (Lakoff)

Interesting, that between Ian and Jay White, Godwin’s Law and the professed MacDougall’s Law, both with lots'a corollaries, were fulfilled mostly by their own good selves; my (modest) contribution having been to directly associate the 3rd Reich and the US regime. In Ian's case, the mention was of Hitler, the thread's very first post. Well done!

(One feature, so I hear, of a trained soldier, is his/her shockingly immediate readiness and toadal® lack of compunction in 'going for the kill.' Ooops! That's probably an unrelated red herring! Sorry - but not too sorry...)

What I really meant to say, was that Lakoff brought us the concept of 'framing;' it's not just what you say (or how you say it), but also how you set the stage - the conversational 'scenery,' so's to speak. And therefore how odd that it was Ian who brought us Hitler, Jay who brought us Bush, then Ian again who brought us the rest of the wicked B, B & H triumvirate, Blair and Howard.

I don't suppose it's ever occurred to either of you, that the reason why many if not most threads sooner or later devolve to mentioning B, B & H along with all their horrid connotations, is because they represent the biggest problem facing the world, namely the feared catastrophic climate catastrophe, which those three have until oh so recently almost totally ignored ("Let them eat CO2!") while they all "Go play in Iraq"?

Since the very first mention of "Shock and Awe", I - and others of my ilk - have been investigating. Here's some of the results; I'd say typical of those reached by many an internet 'Fisker:'

1. That politicians lie, not 'just' B, B & H but also in the so-called 'opposition' parties - typified by the US Democrats who, having recently taken control of the US Congress, have so far not acted to extricate the US from Iraq. And the reason why they do not act, is because they too want Iraq's oil - on behalf, of course, of the 'Land of the free.' Even then, not really on behalf of the actual sheople®, but more on behalf of the sociopathic plutocracy.

2. That not just politicians but also the MSM, in all its various forms (including 'our' AusBC - spit, spit!) lie. The MSM doesn't just transmit politicians' lies (bad enough in itself), but the MSM also lie off their own bat (cricket analogy!)

Calame's defense shows that the editors and superstar reporters of The New York Times have learned nothing from the bogus W.M.D. stories of 2002-2003. The "paper of record" is aiding and abetting the Bush Administration in its pursuit of yet another war of choice.

[huffingtonpost/Judith Miller was the Tragedy; Michael Gordon is the Farce]

3. That the US (with side-kick UK and dag Aus) illegal invasion of Iraq (aka murder for oil), is only the tip of a very big (and very dirty!) iceberg; that the US - not alone but predominately - has been ripping the world off, both with their predatory business (especially mining) practices, and their holding of the financial world to ransom via their excessive printing of otherwise worthless fiat-money. Lots'a excess money, required to purchase oil denominated in $US, thus ends up as Petro-Dollars some (most?) of which go on to finance the bizarre arms trade. Other excess dollars are used to finance the desperate and dastardly US deficits, and go on to instigate wide-spread inflation (Oh, say in housing, or stock-exchanges... how soon boom-to-bust?)

That's enough of the 'dirt' for now; there's plenty more where that came from.


I quote from Ian's latest: "the consciousness on that participant’s part of the weakness of their own argument so revealed..."

What? Just whose arguments are weak?

Can you deny, Ian, that the US has the intention of controlling Iraq's oil, to the point of pushing legislation on the (puppet!) Iraqi government to enable PSAs to be given in a preferential fashion to US (and possibly UK, if they're lucky) oil majors?

The national oil law would allow regions to enter into production-sharing agreements with foreign companies, which some Iraqis say could lead to foreigners reaping too much of the country’s oil wealth.

[NYT/Iraqis Reach an Accord on Oil Revenues]

The law as detailed in that draft is highly unusual for the Middle East, where other countries outlaw granting foreign companies direct interest in oil production. Under this draft hydrocarbon law, major Western oil companies would be granted Production Sharing Agreements (PSAs) for up to thirty years and, in at least the first few years, would reap up to 75 percent of the profits from both developed and undeveloped oil fields. Key to these PSAs is that they would be "locked in" regardless of the government in power. ... The U.S. troops’ eventual role will likely be to garrison existing and future oil infrastructure... Garrison outposts guarding valuable assets in a hostile foreign land. Now what does that sound like?

[The Humanist/The Long Game]

Hmmm. 'Big (US) oil' to reap up to 75%, eh? Bets they get even more?

This is where murder for oil comes in, the US aim all along - admittedly, not the sole reason; there's also the Israel Lobby [LRB/M&W] to account for, then the PNAC empire (bad!) dreamers, and even democratisation (only as the last - and weakest - in a looong line of pitiful excuses for mass-murdering theft). But please take note: what with repugnantly lying politicians, a venally lying MSM, a grisly military/industrial complex willing to both sponsor then carry out illegal, murdering invasions, our 'leaders' ignoring the anti-war pleas of their electors (a "Drive over the bastards!" mentality which persists through to this day - see recent Cheney visit to Sydney; massive traffic chaos, demonstrators brutalised - again? No, still), a democracy we may have - but really daaarlings, basically in name only.

And so I rail against the grave injustices foist upon us (what are you doing, Ian, in the hope of improving our lot?) Admittedly, my theme is 'off-topic' for this thread, but can anyone point to any grave errors in my facts or logic? IMHO not; I strive for accuracy.

Mass murder is fine if you are a 'non aligned' dictatorship

Geoff Pahoff, if the Israeli government has "a legal and a moral obligation" to "balance the security needs of its citizens against the humanitarian concerns of West Bank Palestinians", it's indicative that the Serbian government had apparently no direct responsibility for the conduct of its own armed forces who conducted an outright massacre of thousands of its own citizens along ethnic and religious lines before the gaze of the world's media.

But of course, the former Yugoslavia was a prominent member of the, ha, ha, "non aligned movement" of anti-western thug states and must be therefore judged by the standards of political expediency best serving the propaganda needs of the Dialectic.

Now, Robert Mugabe and his campaign to eliminate the "filth" (i.e. starved population) of Zimbabwe. Does he have any responsibility there?

ICJ dissenting opinion

Those who are fond of migraines may care to examine the Summary of the Judgement issued by the ICJ. I’ve only had time to skim the document, but the following dissenting opinion of Judge ad hoc Mahiou kind of leaps off the page:

... I cannot subscribe to most of the substantive findings reached by the Court by way of what I believe to be: a timorous, questionable view of its role in the evidentiary process, a deficient examination of the evidence submitted by the Applicant, a rather odd interpretation of the facts in the case and of the rules governing them and, finally, a method of reasoning which remains unconvincing on a number of very important points. ... In my view, the Respondent’s responsibility appears clearly established... Even assuming the findings in respect of these charges to be problematic, the evidence before the Court appears sufficiently strong and convincing to have at the very least justified a finding of complicity in the crime of genocide; serious weaknesses and contradictions clearly emerge in the reasoning of the Court, which exonerates the Respondent from such responsibility.

I could be wrong, but something tells me Mahiou’s dissenting opinion may become more significant than the majority judgement.

By the way, Ahmed Mahiou so far as I can determine is from Algeria, which I’m not sure would be one of those countries that abide by the rule of law.

No you can't have that

Jacob, yes thank you.Very interesting and not at all surprising. Did you read the SMH report this morning regarding the decision?

Not only did this Court make its decision without first ensuring it got to question Mladic and co, it was not even allowed by Serbia to see the evidence Serbia put before the Milosovic trial. Seems Serbia was prepared to let him go down for the genocide, but was not prepared to let that get in the way when it came to protecting its bank balance.

So the World Court has failed 8,000 dead men and boys. It might as well go back to hearing matters concerning fish in the sea. To fail in this way can cause more long term damage than if the case had never been heard at all. And of course these victims were Muslim. Just another issue for Muslims to feel angry about. And in this case who could blame them? 

The most abiding image of this failure on the part of the international bodies will be the video footage of that group of young men being taken out of the back of a van, and shot. Can anyone imagine anything worse than turning on the TV just in time to see your missing son amongst those boys? And now this mother has to live with the knowledge that the nation that at worst was complicit in her son's killing, or at best stood by knowing it was going on but did nothing to stop it, will never be held accountable. And we wonder why people live with hate in their hearts.

That's not cricket

G'day to Ian MacDougall and Jay White.

1. Ian: I do not bowl leg spinners; I just don't bowl at all (if you don't mind).

I'm sure you'll allow me to remind you of Godwin's Law, in which the first person in an internet debate to invoke Hitler or the Nazis automatically loses said debate.

However, since I reckon I'm bigger than that, I responded. Of course you may "take a few months to think long and hard about it," and I 'note' your "Noted" cop-out.

Note: Godwin's Law is considered by some to apply to 'off-topic' mention, but that could be a bit 'iffy,' both in connection with Serbia and the US/GWBush&Co. Perhaps one could say, "If Serbia can be validly associated with Hitler, then so too can the US/GWBush&Co."

Then: since I interpret your 'leg spinner' imagery to indicate that you think my question is not related to my premises (exhibits #1 - 4), it seems that I must spell it out with fewer polysyllabics: the US regime often carries out criminal acts, i.e. invading countries, with criminal motives, i.e. stealing (even if 'only' control over) oil, as amply illustrated by the recent illegal invasion of Iraq, i.e. murder for oil. And the 'hook' that I hung my question on was your reference to Hitler. OK? Are we clearer yet? Perhaps not, in which case: Hitler invaded countries, so too does the US. Hitler's invasions were considered aggressive, as I consider at least some (some? Lots!) of the US's invasions (Iraq, Afghanistan, Vietnam, how many etcs over what period? See Exhibit #1.) Also, Hitler wanted to steal (i.e. Lebensraum), the US wants to steal (i.e. Iraqi oil.) How many iterations would you like, Ian?

2. Jay: first of all, I do not have a "personal law," but I do have my own home-grown morality (available on request). In a nutshell, I decry lying, cheating, stealing and any assault up to and including murder. Secondly, it has been remarked that one can find anything on the internet, and indeed hear/see anything in the MSM; the 'trick' is in knowing what might be true and what false. In particular, wiki has had its problems with special-interest take-overs of topics. Caveat emptor, as they used to say, or perhaps the old 'saw' (maxim): don't believe anything you hear, and only half of what you see?

Now, Jay, you've given us two references, one on the ICC and one on Iraq, the US (with side-kick UK and dag Aus) illegal invasion thereof. There's probably 'better' references, even in wiki itself. You could try The International Criminal Court and the 2003 invasion of Iraq or perhaps better Legitimacy of the 2003 invasion of Iraq. From the latter: "A dispute exists over the legitimacy of the 2003 invasion of Iraq. ... Critics often cite the Downing Street memo as further proof the war was waged under misleading terms."

Yeah, the Downing Street memo. Or the Bush/Blair chat, where they suggested painting a US plane in UN colours, hoping that Iraq would take a pot-shot at it? Or perhaps the Project for the New American Century (PNAC) ravings. Or, one could consider all those 'chicken-hawks' and their oily connections? You know, we've gone over all the evidence we can find, and it all points one way: duplicity. They lied us into war of aggression. Think Nuremberg.

Then, there's your own oft exhibited ambivalence for the UN? You know, I used to say that the UN was the right address, but that was before I realised that the UN, like lots of other countries/people/things, is vulnerable to US threats. Another way of saying 'corruptible,' eh? And the US rejects the ICC outright, so Q: where is your 'legality' thing going? A: Nowhere. This is why I invoke morality: murdering thievery may or may not be 'illegal' since illegality requires valid law from competent authority. Since in this case the perpetrator ignores and abuses the authority and the authority itself is corrupt, any purported 'legality' is now, basically, 'for the birds.' And do remember, Jay, that we're talking about dead Iraqis. Lots of 'em. Gruesomely. Sooo, who would deny that murdering thievery is immoral - another way of saying wrong?

But you know what gets right up my nose about you, Jay? Pssst! I'll spill these beans: it was this statement from you: "And who, disguised as Jay White ... fights a never-ending battle for TRUTH, JUSTICE and the AMERICAN WAY!"

The real problem, Jay, is that 'Truth, justice and the American way' is nothing other than pernicious propaganda; the whole thrust of America, from as far back as I can remember (and of course, much further back than that) is exactly the opposite of truth, exactly the opposite of justice, and 'the American way' is something to rapidly reform rather than perversely promote.

Truth? Think "Lying politicians" (GWBush&Co, the Dems disgusting dissembling). Think "Corrupt MSM" (NYT, WP, Faux News, all the filthy etcs (all the way down to 'our own' AusBC, spit spit!); outright lies to manufacture consent Think: Goebbels).

Justice? Where to start? How about, the US with 5% of the world's population consuming 25% of its resources? Or, while people are starving (and New Orleans is mostly still a ruin), the US is over-run by behemoth gas-guzzling SUVs? Or, that the US refuses to even acknowledge that global warming is a problem? Where's the justice in any of that?

The American way? Think "Crooked business practices" (IMF, Economic Hit Man, the mining rip-offs). Think "Madison Avenue" (manufactured desires). Think "Hollywood" (the dream factory; purveyors of all possible perversions). Then, there's the out-of-control military/industrial complex, and the deranged and disastrous "print worthless fiat-money" deficits... and (once more, with feeling): the US (with side-kick UK and dag Aus) illegal invasion of Iraq, aka murder for oil. How many iterations would you like, Jay?

Sorry (but not sorry) Jay, your 'champion' is a bankrupt, murdering criminal. Think "sociopathic plutocracy."

Godwin as last refuge

Phil Kendall, Godwin’s Law as originally formulated in 1990 by Mike Godwin says:

"As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one."

(That means it approaches certainty.)

I would concur with that, adding that the probability of a participant filing for defamation, being struck by lightning, headbutting the computer monitor, etc, etc also increases, approaching one if the discussion goes on long enough.

However, let me also point you to MacDougall’s Law, which says that as an online discussion proceeds, the probability of a participant invoking a self-serving buggered-up version of Godwin’s Law also approaches one, with the corollary that the consciousness on that participant’s part of the weakness of their own argument so revealed absolves all other participants of having to respond any further to that player’s posts.

Note however that Godwin’s Law as originally formulated is value-neutral on the subject of mention of Hitler or Nazism. Understandably so, as Hitler and Nazism are synonymous with evil in politics, and are thus highly likely to crop up in any political discussion where contentious issues and values are involved, which is most of them.

On your tedious but predictable invitation to readers to equate the US with Nazi Germany and Milosovic’s Serbia I can only add this: it invites a further corollary of MacDougall’s Law, as follows: the longer any Webdiary discussion of any specifice manifest case of injustice anywhere in the world (eg Bosnia, Mongolia, Upper Volta) proceeds, the sooner some participant will want to turn it into an attack on the US; on Bush; on Bush and Blair, or on Bush, Blair and Howard.

That law is absolutely watertight and bulletproof.

Jacob A Stam, thanks for pointing out the dissenting opinion of the Algerian judge. I will read the full text when I get a chance.

International Court Of Justice

Right up there with the Ministry of Truth.

Excuse me, but is anybody surprised?  

International Court of Justice?

This is getting surreal.

"The Israeli government has both a legal and a moral obligation to comply with the Israeli Supreme Court's decision regarding the security fence.

After all, the Supreme Court is a creation of the Knesset and is therefore representative of all of the people - Jews, Muslims, and Christians alike. Moreover, the Supreme Court has a real stake in both sides of the fence dispute. Its job is to balance the security needs of its citizens against the humanitarian concerns of West Bank Palestinians. It tried to strike that balance by upholding the concept of a security fence while insisting that the Israeli military authorities give due weight to the needs of the Palestinians, even if that requires some compromise on the security of Israelis.

Contrast this with the questionable status of the International Court of Justice in The Hague. No Israeli judge may serve on that court as a permanent member, while sworn enemies of Israel serve among its judges, several of whom represent countries that do not abide by the rule of law. Virtually every democracy voted against that court's taking jurisdiction over the fence case, while nearly every country that voted to take jurisdiction was a tyranny. Israel owes the International Court absolutely no deference. It is under neither a moral nor a legal obligation to give any weight to its predetermined decision. "

I would go further. I would assert that no ethical lawyer has any business having anything to do with the International Court of Justice. Any more than they should have had anything to do with the courts of Nazi Germany or the show trials of the Soviet Union.

Hague justice would be a joke if there was anything at all funny about it.

It's okay because the Serbians are neither Americans or Israeli

Phil Kendall: "Getting away with mass-murder (US style, aka 'murder for oil')"

If you go to some of the more rat-bag Indymedia blogs, you don't have to search too hard to find people defending Slobodan Milosovic and other Serbian leadership figures from that time against the charge of genocide. The usual diversionary tack is to point to the "acts of war" and "attacks on Yugoslavian sovereignty" by NATO and US "complicity" in the "destruction of Yugoslavia".

Imagine if American forces in Iraq, or Israeli Defense Forces rounded up a few thousand Muslims, put them in a camp enclosure, then starved, beat and machine gunned them to death.  There'd be little doubt in your mind, then, that that would be "genocide", would it Phil?

The rhetoric of "moral equivalence" and "mirror speak" was 20th century Marxism's greatest, and indeed only surviving gift to the architects of doom.

The ICC is neither here nor there in this instance

Craig Rowley: "You do understand the fundamental difference between the International Criminal Court (ICC) and the International Court of Justice (ICJ), don't you? Jay? Jenny?

This rather curt repartee is not as cut and dried as it would first appear. Firstly, I do not know how Robinson QC feels about Bin Laden and where he should be tried. That I assumed is hypothetical. I do know on the Saddam case he did call for some sort of international court. Exactly what court he and others were calling for I am not one hundred per cent sure.

It could not have been for Saddam nor hypothetically Bin Laden to face the ICC. And even if it were, it would not be legally possible for this process to proceed:

The ICC legally came into existence on July 1, 2002, and can only prosecute crimes committed after that date.

The only other avenue open would be for the nations to agree for the UN to set up an ad-hock court such as the ICTY. However, if Milosevic had of survived and been found guilty of war crimes by the ICTY this latest ruling would have presented one of the great conundrums of our time. Milosevic like Saddam was not a general involved in a battle. He was a politician and President operating in this copassity out of Belgrade. And the ICJ has ruled:  

According to the Court, the Bosnian Serb generals who were guilty of this genocide, the various Mladic’s and Kristic’s, were neither acting as Serbia’s agents nor receiving specific instructions from Belgrade. The genocide could not therefore be imputed to Serbia, even if the Serbian government was paying salaries to Mladic and his colleagues, as well as providing them with financial and military assistance. Nor was Serbia guilty of complicity, because, though it exercised considerable influence over Mladic and his people, it did not know, at the moment when the genocide was taking place that such a crime was being committed.

Milosevic died before judgement so we will never find out. It is though quiet fair for Jenny Hume and myself to make certain hypothetical assumptions based off this ruling. The same way the writer of the article does with this closing sentence: "The survivors of Srebrenica, for whom Bosnia was seeking damage awards, will receive nothing from Serbia. And if former Serbian President Slobodan Milosevic were alive, he would be absolved of the charge of genocide."

Without being rather rudely pointed in the direction of something (in this case the ICC) which has and cannot have any bearing on the point either of us are attempting to make. 

Phil Kendall here's one for you:

On 9 February 2006, the Chief Prosecutor published a letter answering complaints connected with the 2003 invasion of Iraq.He concluded that he did not have authority to consider the complaint about the legality of the invasion, and that the available information did not provide sufficient evidence for proceeding with an investigation of war crimes due to the targeting of civilians or clearly excessive attacks; the evidence for willful killing and inhuman treatment, which covered around 20 people, did not appear to meet the "gravity" threshold for an investigation.

Guess that rules out the illegal part in law from the illegal invasion?Back to the moral arguments and Phil Kendall's personal law.

More than just one letter difference

Having read the summary of the case as well as Antonio Cassese's post published here, I agree with Cassese's assessment of the fundamental problem with the ICJ's judgement.  I also hope to see those who are responsible for the genocide in Srebrenica being apprehended and brought to justice.

There is something else thought that is lamentable and that is the fundamental problems with the judgements being made of the international justice system in some of the comments here so far.

For example, Jay you say: "And there would be those, and I am sure Robinson is among them, who would call for Bin Laden to be tried at the ICJ."

And Jenny you say: "Can't you just see the years of farce and spectacle Saddam Hussein would have made of any trial in the Hague?"
You do understand the fundamental difference between the International Criminal Court (ICC) and the International Court of Justice (ICJ), don't you? Jay? Jenny?

The ICJ, which decided on the case Casesse writes about (Bosnia and Herzegovina v. Serbia and Montenegro), "has a dual role: to settle in accordance with international law the legal disputes submitted to it by States, and to give advisory opinions on legal questions referred to it by duly authorised international organs and agencies."

The ICC "is an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes."

They are separate courts with different functions and they really shouldn't be confused.

Yes Craig

Craig, yes I do know the difference. But to me this decision does not inspire much confidence in either institution. 

Would not this decision have meant Slobodan Milosevic would ultimately have gone free at the Hague? Had Mladic and co been handed over, and they blabbed that they were only acting on orders from the top, would the ruling have been different? What does Serbia have to hide in hiding these men?

The truth perhaps that might have seen a different decision and it have to pay compensation to those Bosnian muslim families left without fathers, sons and husbands, and ultimately seen Milosevic found guilty of genocide. We will probably never know and the vicitms will know no justice let alone get an compensation. 

Serbia will no doubt use this ruling to promote its membership drive for the EU, and what is the bet it gets that without handing Mladic and co over? 

Those who would see the US examined over the Iraq war, and Bush and Rumsfeld put on trial in the Hague would not draw much comfort from this decision I would believe.  

These institutions I believe will be about as effective as the UN in stopping the genocide in the first place. And we know how effective that is.  Darfur, Ruwanda and Burundi and Pol Pot for a start. And the slow death of the Zimbabweans where I note Mugabe has just enjoyed a nice birthday party while his people starve.

Let's face it, the world in general has no real will or power to either act in the face of genocide, or bring the perpetrators to account after the event. So it will go on. And there will be no justice for the victims, and no compensation.

I am sure the Iraqis knew that when they insisted on trying Saddam Hussein themselves. And yet we dare judge them for that. If it was good enough for Israel to grab Eichmann and deal with him through their legal system, why should the Iraqis not be allowed to do the same? Or the Bosnians to grab Mlidac, (and Milosivic had he lived), and tried them in Bosnia. 

No I do not think the victims of genocide will ever draw much comfort from the operations of these international institutions. A few underlings found guilty now and then will be about the long and the short of it.    

Hide the killers, hide the evidence

If Serbia had nothing to hide, then why is it so important that it continue to hide Mladic, the perpetrator of the genocide at Srebenica? And Karaditch? Speaks for itself really. Hand them over and they just might blab. Musn't risk that must we?

Seems to me when these creeps are finally found (and we should not hold our breath on that score) they should be tried in the country where the crimes were committed. 

Can't you just see the years of farce and spectacle Saddam Hussein would have made of any trial in the Hague? At least the Iraqis were spared years of that, and got to see justice done. More than the Bosnian muslims are ever likely to see while Serbia continues to protect Mladic and Co.       

I appeal against the light - I mean darkness

Jay White, thank you for that. Spot on.

Phil Kendall, a most versatile post from you on the matter of the recent judgement by the ICJ regarding Serbia’s responsibility for the massacre in 1995 of Bosnian Muslims by Bosnian Serbs at Srebrinica. Well done. I’m surprised you are not using it as a stock opener in every thread on Webdiary. And don't forget your copyright and royalties.

In brief it was:

The US has been invading and colonising since at least the 1890's:
The US nuked Hiroshima and Nagasaki.
The US) invaded Iraq on false premises and without UN sanction:
The Iraqi cabinet has agreed to an 'oil law' which will allow for the privatisation of Iraq’s oil.
And then you bowl me this leg spinner: “How do the 3rd Reich, the Serbian government and the US regime differ, please?”

Gee, that’s a hard one, Phil. Do you mind if I take a few months to think long and hard about it? I’ll get back to you. In the mean time… Noted.

There you have people of justice

Ian MacDougall is 100% the Srebrenica judgement is lamentable. It is lamentable for anyone who followed the disgraceful events that take place in this sad patch of the world.

Now the Robinson's of this world can pounce around as much as they fit. Screaming for "international" justice. But is that what the people of Srbrenica received in this instance? And there would be those, and I am sure Robinson is among them, who would call for Bin Laden to be tried at the ICJ. Not on your life "bud"!

Also wondered how long it would take someone to blame America for this situation. Phil Kendall has supplied the answer, one post. Incredible! What bet George Bush gets a mention before the sixth post?

Getting away with mass-murder (US style, aka 'murder for oil')

Exhibit #1:

The US has been invading and colonising since at least the 1890's:

"The invasion of Iraq in 2003 was not an isolated episode. It was the culmination of a 110-year period during which Americans overthrew fourteen governments that displeased them for various ideological, political, and economic reasons."
ICH/Overthrow: America's Century of Regime Change from Hawaii to Iraq

Exhibit #2:

The US nuked Hiroshima and Nagasaki.

"That said, it is estimated that as many as 140,000 had died in Hiroshima by the bomb and its associated effects,[1][2][3] with the estimate for Nagasaki roughly 74,000.[4] In both cities, the overwhelming majority of the deaths were those of civilians."

That this was outright murder is disputed only by some, and if we apply Occam's razor it is possibly the simplest explanation, and further, explains exactly why the US can and does threaten to nuke anyone it pleases, see "All options on the table" vis-à-vis Iran.

Exhibit #3:

The US (with side-kick UK and dag Aus) invaded Iraq on false premises and without UN sanction:

When pressed on whether he viewed the invasion of Iraq as illegal, he said: "Yes, if you wish. I have indicated it was not in conformity with the UN charter from our point of view, from the charter point of view, it was illegal."
BBC/Iraq war illegal, says Annan

Thus was Annan's - and the UN's - reputation 'trashed' forever (detested Ami-speak, spit, spit!)

Exhibit #4:

The Iraqi cabinet has agreed to an 'oil law' which will allow for the privatisation of the oil, aka 'Let the rip-off begin!'

"The national oil law would allow regions to enter into production-sharing agreements with foreign companies, which some Iraqis say could lead to foreigners reaping too much of the country’s oil wealth."
NYT/Iraqis Reach an Accord on Oil Revenues

This law was drafted by the US and will be imposed on the (puppet!) Iraqi govt.

"Mission accomplished?"


Now, a question for Ian MacDougall: How do the 3rd Reich, the Serbian government and the US regime differ, please?

Getting away with mass murder

I could not agree with Cassese more. Justice must not only be done, it must be seen to be done. This ICJ decision provides a textbook example for genocidal politicians on how to get away with it, and could only be dreamed up by bureaucrats living in a rarefied atmosphere of 100 floors up from reality. It provides a mirror image of the ‘Nuremberg defence’ tried on without success by those (pathetically few) Nazis brought to trial after WW2. That defence was essentially “we were only following orders.” The ICJ has just inspired a new version, namely “they were only following non-orders.” Or perhaps “they were only not following non-orders”. I should imagine there will be some wild celebrations in Belgrade over the next few days.

If massacres like Srebrenica are to come to an historic end, chains of command must also be seen as chains of responsibility.

There are only three questions to be answered in my view. The first two are these, with answers provided: (1) Did Mladic and the troops under him carry out this massacre? Yes. (2) Who was Mladic’s ultimate commander? The Serbian government.

Therefore, in the chain of responsibility, the Serbian government is responsible for the actions of its underling while on duty in his area of normal activity, which of course was use of force and military power. (It would arguably not be responsible if while off duty and in a private capacity, Mladic had say, carried out some crime like a smash and grab robbery.) The degree to which the whole Serbian nation should be held responsible and financially liable for the actions of its government is a matter for debate. I incline to the view that it should be so held.

Which brings us to the third vital question. Who is shielding Mladic (and Karadjic, and the rest, passively or actively) today? The Serbian government.

The major lesson to be drawn from this lamentable ICJ decision is clear: if you are going to be involved in ‘ethnic cleansing’ of whatever kind, do it by nodding and winking, and don’t leave a paper trail. Of course, this principle has long been known anyway, and was practiced by Adolf Hitler. Were Hitler brought before this Court, lack of evidence of knowledge or intent would probably get him off too.

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