T K Vogel — research & analysis

On February 26, the International Court of Justice (ICJ) in The Hague cleared Serbia of genocide charges in connection with Belgrade’s support to the Bosnian Serbs during the 1992-95 war in Bosnia-Herzegovina. The ICJ confirmed, however, an earlier ruling by the International Criminal Tribunal for the former Yugoslavia (ICTY), also in The Hague, that events following the fall of Srebrenica to Bosnian Serb forces under the command of General Ratko Mladic did in fact constitute genocide, and it found Serbia in breach of international law for failing to prevent the killings or punish those responsible. The lawsuit was brought by the Bosnian government in 1993 against rump Yugoslavia and was among the court’s most complex and contentious cases in its 60 years of existence.

A genocide verdict would have required proof that the government of then-Yugoslavia (whose legal successor is Serbia) intended to “destroy, in whole or in part, a national, ethnical, racial, or religious group, as such,” as outlined in the 1948 Genocide Convention. It was clear from the very beginning that such intent would be extremely difficult to prove, not least because Serbia has not been forthcoming in granting access to government documents that might shed light on the complex ties it maintained with the Bosnian Serbs.

The ruling therefore reflects the state of knowledge as of today, a little over 11 years after the war ended. It is unlikely to be the last word even though no appeal is possible: history will continue to be amended every time new evidence comes to light. This concerns above all the court’s finding that neither the Bosnian Serb republic nor its army “could be regarded as mere instruments through which [then-Yugoslavia] was acting,” and that “the acts of genocide at Srebrenica cannot be attributed to the Respondent as having been committed by its organs or by persons or entities wholly dependent upon it, and thus do not on this basis entail the Respondent’s international responsibility.”

Since it is open to revision, the verdict will not bring closure to the dispute between competing historical interpretations of the war in Bosnia. Serbia and Bosnia-Herzegovina’s Republika Srpska will continue to maintain that it was a bloody civil war in which all sides committed atrocities, while Muslims and Croats will continue to see it as a war of aggression waged by Serbia on a newly independent member of the United Nations. But taken in their totality, the facts established by the ICTY and now the ICJ suggest a picture with considerably more shades of gray than either side would like to admit.

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