ICJ Opinion in Bosnia v. Serbia

In February, the International Court of Justice (ICJ) ruled that, although Serbia was not directly responsible for committing genocide in Bosnia, it was responsible for having failed to prevent genocide at Srebrenica. The ICJ did not award damages against Serbia.  It ruled that the issuance of the judgment alone constituted satisfaction for Bosnia.

Although the ICJ is not a criminal court, this judgment is of considerable importance for criminal lawyers.  This is because the ICJ ruled that individual criminal responsibility under the Genocide Convention, which is the basis for institutions such as the ICTY, does not extinguish state responsibility under the Genocide Convention.  In my view, this is an important finding.  As I argue in my forthcoming book, Atrocity, Punishment, and International Law (Cambridge University Press, 2007) (more info in books section of this blog), it is important for law in the wake of atrocity to be pluralist and diverse — to welcome criminal, civil, restorative, and local modalities of accountability.  To the extent that accountability can be horizontally expanded to include more than just individual criminal responsibility for a handful of perpetrators, we can move toward a broader actualization of justice. Insofar as the ICJ relied heavily on the work of the ICTY in its opinion, this suggests the emergence of a cooperative international community of courts.

To be sure, the ICJ judgment has led to a lot of disappointment. Many observers in the Balkans do not undersand how Serbia could have been found not to be directly responsible for genocide. For a lot of folks, the judgment is legalese. Others see the ICJ concerned with its own legitimacy and, hence, walking a narrow tightrope in which it gave a bit to all sides. In an interview I did with Croatian media, even when I pointed out the groundbreaking nature of the ICJ’s ruling holding a state responsible for failing to prevent genocide, the response was: well, it couldn’t have been that serious in that no damages were awarded.  But awarding damages against an entire state also gives rise to difficult questions. Who ends up paying? All citizens of that state? Is that fair? Although prosecuting a small number of criminal defendants undercaptures the many layers of public responsibility that make atrocity truly massive, sanctioning an entire state may lead to overcapture in that individuals who resisted are found responsible.  How to strike the balance? I consider some of these questions in my own published work. I hope that these are some topics that commentators and posters on this blog will consider as well.