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).