ICJ Rules, Many Questions Remain Unanswered

After the ruling, the Serbian president, Boris Tadic, urged the Serbian Parliament to condemn the Srebrenica massacre, but that may be difficult to obtain because nationalist groups continue to deny it. He said it was “very important for Serbia and its citizens” that Serbia was not found guilty of genocide, but lamented that once again Serbia was mentioned in the context of war crimes and genocide.
In a statement after the session, Judge Higgins noted that the findings did not completely satisfy either side. “That does not mean, of course, that the court has been seeking a political compromise,” she said.
All the same, the ruling, even if strictly based on the law, hews close to the political wishes of Western countries that want to pull Serbia into a wider Western European community, rather than see it isolated as a pariah state, possibly accused of genocide, with its extreme nationalists growing in strength.
NATO last year invited Serbia to join its Partnership for Peace venture and some European Union countries want to start membership talks with Belgrade, with some demanding that it first locate and hand over General Mladic, charged with genocide at the United Nations war crimes tribunal.
The court said Serbia had to abide by the Genocide Convention, requiring punishment of those accused, and urged it to do so immediately. The court’s ruling might strengthen the hand of Serbians who want to rid themselves of the burden of keeping General Mladic as a fugitive in Serbia.
The tribunal has part of the war-time records of the Supreme Defense Council, which included the former Yugoslavia’s military and political leaders, including Mr. Milosevic. Tribunal officials have said part of the minutes of the meetings were blacked out and some whole sections were missing. But the minutes still provided much information on how the Serb leaders “ran their proxy army” in Bosnia, one tribunal official said.
Serbia made a deal with the tribunal that only its judges and lawyers could see the records, the effect of which was that they were kept out of reach of the lawsuit at the World Court. In their ruling Monday, the judges made the point that they had been prevented from seeing them.
Lawyers for Bosnia had tried to convince the court that the pattern of atrocities across many communities in Bosnia demonstrated the intention to commit genocide, not only by killing, imprisoning and deporting the population, but also by destroying evidence of their presence. Andras Riedlmayer, a historian testifying for Bosnia, said the Serb campaign to purge 26 municipalities of Bosnia of non-Serbs had destroyed or damaged 958 mosques and close to 300 Roman Catholic churches and monasteries.
But the judges ruled that demonstrating a pattern of conduct or of atrocities was “too broad” to qualify for the definition of genocide. The crime of genocide required showing convincingly there was a specific plan or the specific intention to destroy the group or part of it, they ruled.
In essence, they did not answer the question often asked in The Hague: when does ethnic cleansing become genocide?