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On ‘Bad Law’ and ‘Good Politics’: The Politics of the ICJ Genocide Case and Its Interpretation

Published online by Cambridge University Press:  01 December 2008

NIKOLAS RAJKOVIĆ
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Abstract

The discontent within legal ranks over the recent judgment of the International Court of Justice in Bosnia and Herzegovina v. Serbia and Montenegro can be described as nothing other than poignant. The stylized characterization voiced privately by many critics is that the judgment amounted to ‘bad law’ and ‘good politics’; that the Court's ruling had been profoundly influenced by Serbia's fragile domestic politics and hence this worked silently to constrain the Court's rationale and lawmaking. Sadly, critics opine, this political intrusion into the sanctuary of lawmaking produced a judgment that now denies the ‘universal’ deterrent which the Genocide case could have provided. This article, however, takes direct issue with axiomatic interpretations of what constitutes ‘bad law’ and ‘good politics’ in the Genocide case, and argues instead that an antithetical characterization of law with politics proves fundamentally misleading when analysing the Genocide judgment, overlooking the inherent association between law and politics in complex cases that have now become ‘bread and butter’ for international lawyers. In sum, this article will argue, the judgment should not be written off using the dichotomy of ‘bad law’ and ‘good politics’, but rather should invoke critical reflection within the academic discipline and professional practice on the problems of politics which constitute and hence unavoidably permeate cases that emerge from calamitous failures of international politics. The hardening of the fictional boundary between law and politics may provide a convenient gambit for those advocating the ascendancy of international law. However, it is argued, obfuscating the political swamp which is ‘international justice’ cannot make a juridical pasture no matter how much authoritative or ‘learned’ ink is spent; and this is perhaps the key lesson which should be discerned by legal experts from the Genocide case as a whole.

Keywords

Bosnia and HerzegovinagenocideInternational Court of JusticejusticeSerbiawar crimes
Type
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice
Information
Leiden Journal of International Law , Volume 21 , Issue 4 , December 2008 , pp. 885 - 910
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2008

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References

1 Case Concerning the Application of the Convention of the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 27 February 2007 (hereinafter Bosnia v. Serbia, the Genocide case, or the Genocide judgment).

2 It can be argued that the ICJ's finding that Serbia failed to prevent genocide at Srebrenica along with admissions made by Serbia's lawyers that war crimes and crimes against humanity were probably committed in Bosnia are bases for moral, political, and legal condemnation. Regarding the admissions made by Serbia's lawyers see Genocide judgment, supra note 1, at 89 para. 249.

3 R. Goldirova, ‘Serbia Verdict “Closes Chapter” in History, EU Says’, EUobserver.com, 27 February 2007, available at http://euobserver.com/9/23577/?print=1.

4 R. Wedgwood, ‘Bad Day for International Justice: World Court Ruling on Serbia’, International Herald Tribune, 9 March 2007; A. Cassese, ‘A Judicial Massacre: The International Court Has Set an Unrealistically High Standard of Proof for Finding Serbia Complicit in Genocide’, Guardian Unlimited, 27 February 2007, available at http://commentisfree.guardian.co.uk/antonio_cassese/2007/02/the_judicial_massacre_of_srebr.html; Nicholas Wood, ‘Bosnian Muslims View Ruling as Another Defeat’, New York Times, 27 February 2007, Section A, Column 3, Foreign Desk, at 6; M. Corder, ‘Did World Court Judges Miss Smoking Gun in Bosnian Genocide Case in February Ruling?’, Associated Press, 10 April 2007, available at http://0-www.lexisnexis.com.bibliosun.iue.it/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T3721746031&format=GNBFI&sort=BOOLEAN&startDocNo=1&resultsUrlKey=29_T3721746034&cisb=22_T3721746033&treeMax=true&treeWidth=0&csi=304478&docNo=10; ‘Croatian Speaker “Very Disappointed” with ICJ Ruling in Bosnia Genocide Case’, BBC Monitoring International Reports, 27 February 2007, available at http://0-www.lexisnexis.com.bibliosun.iue.it/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T3721769133&format=GNBFI&sort=BOOLEAN&startDocNo=1&resultsUrlKey=29_T3721769139&cisb=22_T3721769138&treeMax=true&treeWidth=0&csi=227171&docNo=25.

5 One thinks of Thomas Kuhn's discussion of ‘normal science’ when confronted with the rhetorical frame of ‘bad law’ and ‘good politics’. See T. Kuhn, The Structure of Scientific Revolutions (1996), 10–34.

6 M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989); M. Koskenniemi, From Apology to Utopia, Reissue with New Epilogue (2005); M. Koskenniemi, ‘Faith, Identity, and the Killing of the Innocent: International Lawyers and Nuclear Weapons’, (1997) 10 LJIL 137.

7 It seems fitting to cite Koskenniemi's 2005 ‘Epilogue’ in the reissue of From Apology to Utopia, supra note 6, at 617, which advises a balance between the silence of law and the use of law to address social-normative problems: ‘I have . . . [argued] both for the need of law to remain silent so that what needs to be articulated outside law can be so articulated, as well as for the use of law to give voice to claims or to indict violations that otherwise would seem matters of political strategy or preference.’

8 For an impassioned argument regarding reparations, see Tomuschat, C., ‘Reparation in Cases of Genocide’, (2007) 5 Journal of International Criminal Justice 905CrossRefGoogle Scholar. See also ‘Bosnians to Sue Holland for 1.3bn Dollars over Srebrenica Massacre’, BBC Monitoring Europe – Political, 2 March 2007, available at http://0-www.lexisnexis.com.bibliosun.iue.it/us/lnacademic/returnTo.do?returnToKey=20_T3700471342.

9 Yet at the core of the Bosnian controversy rests the politicized question of who is a ‘victim proper’, as national narratives in the former Yugoslavia have made discursive efforts to conflate ‘victimhood’ with their exclusive national identification (e.g. Muslims-as-victims, Serbs-as-victims). Therefore narratives on ‘victims’ and ‘victimhood’ vis-à-vis the Bosnian war have been framed in almost exclusive ‘national’ terms, with scant weight given to the suffering of ‘others’. In fact, the discussion of atrocities typically involves a reification of the nation ‘as person’ such that victimhood and criminality are often presented using an essentialized dichotomy of victim or perpetrator, meaning that a nation or person must be placed in one exclusive category, irrespective of history and the contradictory record of each nation or person. A simple illustration of this dynamic is provided by the Bosnian litigation team's written pleadings, where it was emphasized that ‘[F]igures are widely accepted that indicate that the total number of people killed, mainly Muslim but also Croat, is around a quarter of a million, of a population of 4.5 million’. See ‘Memorial of the Government of Bosnia and Herzegovina’, 14 April 1994, Genocide case, supra note 1, at 14, para. 2.1.0.8, available at www.icj-cij.org/docket/files/91/8616.pdf. For a similar example contained within the pleadings of Serbia (then Yugoslavia) see ‘Counter-Memorial’, 23 July 1997, ibid., at 350–1, para. 7.1.0.0 www.icj-cij.org/docket/files/91/10503.pdf. This kind of national-centric discourse on ‘victimhood’ in the former Yugoslavia traces its roots to the controversy over atrocities committed during the Second World War. It is important to note the sharp contrast between Western Europe (relative closure) and the former Yugoslavia (open dispute) on this issue of accountability for Nazi-era atrocities. Robert M. Hayden provides a concise introduction regarding this vicious inter-generational legacy:

To give some perspective, from 1941–45 a minimum of 896,000 people were killed, while in the wars of the 1990s, fewer than 150,000 died: 105,000 in Bosnia, perhaps 20,000 in Croatia, and 12,000 in Kosovo. The 1940s war included national massacres much like those of the 1990s but on a larger scale, and questions of exactly who killed whom were so touchy that an official census of victims, conducted in 1964, was never released and is still classified as secret. Officially, commemoration lumped together all the dead as ‘victims of war and fascism’, thus excluding those killed by the ultimately victorious Communists and also not distinguishing who was killed by the various ultra nationalist forces. However, in the year before the collapse of Yugoslavia, politicians in Bosnia, Croatia . . . Slovenia [and Serbia] used the (re)discovery of unmarked mass graves to incite hostility between the various national groups in the country. The political life of corpses then resonates with that now: commemorations of specific massacres from the 1991–1995 period are invoked by various actors to justify nationalistic policies. (Hayden, R. M., ‘Justice Presumed and Assistance Denied: The Yugoslav Tribunal as Obstruction to Economic Recovery’, (2006) 19 International Journal of the Semiotics of Law, at 404–5CrossRefGoogle Scholar)

See also S. Bogosavljević, ‘The Unresolved Genocide’, in Nebojša Popov (ed.), The Road to War in Serbia (2000); K. Verdery, The Political Lives of Dead Bodies: Reburial and Postsocialist Change (1999); R. N. Lebow, W. Kansteiner, and C. Fogu (eds.), The Politics of Memory in Postwar Europe (2006); B. Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (2006).

10 It is acknowledged that a selective historical account will be employed here to support my analytical argument. This is duly noted because of the contested and often politicized nature of historiography vis-à-vis the wars of Yugoslav secession. The political clash of historical interpretations is concisely illustrated in the exchange between Charles G. Boyd, Noel Malcolm, Norman Cigar, David Rieff, and William E. Odom in Foreign Affairs at the end of 1995: see Boyd, C. G., ‘Making Peace with the Guilty’, (1995) 74 (5)Foreign Affairs 22–38CrossRefGoogle Scholar; Malcolm, N., ‘Faulty History’, (1995) 74 (6)Foreign Affairs 148–150CrossRefGoogle Scholar; Cigar, N., ‘False Relativism’, (1995) 74 (6)Foreign Affairs 150–1CrossRefGoogle Scholar; Rieff, D., ‘Denying Moral Equivalence’, (1995) 74 (6)Foreign Affairs 151–2CrossRefGoogle Scholar; Odom, W. E., ‘Putting out the Balkan Fire’, (1995) 74 (6)Foreign Affairs 152–3CrossRefGoogle Scholar; Boyd, C. G., ‘Peace Principles’, (1995) 74 (6)Foreign Affairs 153–5CrossRefGoogle Scholar. Further, the following short list is provided of competing historiographies (in English) on the wars of Yugoslav secession: N. Malcolm, Bosnia: A Short History (1994); S. L. Woodward, Balkan Tragedy: Chaos and Dissolution after the Cold War (1995); N. Mousavizadeh (ed.), The Black Book of Bosnia: The Consequences of Appeasement (1996); R. Thomas, Serbia under Milošević: Politics in the 1990s (1999); A. Pavković, The Fragmentation of Yugoslavia: Nationalism and War in the Balkans (2000); S. P. Ramet, Balkan Babel: The Disintegration of Yugoslavia from the Death of Tito to the Fall of Milošević (2002); D. Johnstone, Fools' Crusade: Yugoslavia, NATO and Western Delusions (2002); J. Gow, The Serbian Project and Its Adversaries: A Strategy of War Crimes (2003).

11 Koskenniemi, From Apology to Utopia, supra note 6, at 147–8, 497; Haltern, U., ‘Pathos and Patina: The Failure and Promise of Constitutionalism in the European Imagination’, (2003) 9 European Law Journal 14, at 20CrossRefGoogle Scholar; P. W. Kahn, The Reign of Law: Marbury v. Madison and the Construction of America (1997).

12 Conventional legal doctrine holds that ‘the legal method’ possesses an objectivity which is capable of determining ‘real facts’. See Koskenniemi, From Apology to Utopia, supra note 6, at 466–71.

13 In her statement to the press following the judgment's release, the president of the ICJ, Judge Rosalyn Higgins, was quick to underscore that Bosnia v. Serbia was a ‘highly complex case’ that was ‘extremely fact-intensive.’ See ‘Statement to the Press by H.E. Judge Rosalyn Higgins’, President of the International Court of Justice, 26 February 2007, available at www.icj-cij.org/court/index.php?pr=1898&pt=3&p1=1&p2=3&p3=1.

14 A. Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’, (2007) 18 EJIL 649; D. Luban, ‘Timid Justice: The ICJ Should Have Been Harder on Serbia’, Slate Magazine, 28 February 2007, available at www.slate.com/toolbar.aspx?action=print&id=2160835.

15 Koskenniemi notes that there are ‘practical reasons’ why the ICJ has historically supported ‘a strict conception of [legal] determinacy’. In the first place, wide discretion with respect to judicial law-making would make states more reluctant to consent to public international adjudication. See Koskenniemi, From Apology to Utopia, supra note 6, at 13–20.

16 See R. D. Caplan, Europe and the Recognition of New States in Yugoslavia (2005); A. S. Trbovich, A Legal Geography of Yugoslavia's Disintegration (2008).

17 For a contested account of collaboration between US government agencies, Iran, and the Islamist underworld in the covert military support of Bosnia's Muslims, see the monograph of a former US National Security Agency analyst, now Professor of Strategy, US Naval War College, J. Schindler, Unholy Terror: Bosnia, Al-Qaida and the Rise of Global Jihad (2007). See also Sir M. Rose, Fighting for Peace: Bosnia 1994 (1998); C. Wiebes, Intelligence and the War in Bosnia, 1992–1995 (2003); Associated Press, ‘Bosnia Asks Muslim World for Help’, 28 September 1992; H. Pick and M. Simmons, ‘Islamic World Set to Back Force in Bosnia’, Guardian, 1 December 1992, 9; T. Barber and A. Bevins, ‘Muslims Determined to Carry on Fighting’, Independent, 2 January 1993, at 1.

18 For a discussion on the role of frames and narratives in the organization of political meaning see Payne, R. A., ‘Persuasion, Frames and Norm Construction’, (2001) 7 European Journal of International Relations 37CrossRefGoogle Scholar; and Barnett, M., ‘Culture, Strategy and Foreign Policy Change: Israel's Road to Oslo’, (1999) 5 European Journal of International Relations 5CrossRefGoogle Scholar.

19 The politics of ‘the dead’, in statistical terms, has been a significant dimension of the Bosnian and former Yugoslav quagmire. It complements the discursive struggle over ‘victimhood proper’ discussed earlier at note 10. The inflation of casualty statistics to prompt Western intervention and sympathies was a key facet of the Bosnian and later Kosovo conflicts. George Kenney, a US State Department analyst who resigned over US policy in Bosnia, was the first to note this aspect of death inflation for the purpose of political expediency. See G. Kenney, ‘The Bosnian Calculation’, New York Times, 23 April 1995, Section 6, Magazine, 42. The latest research effort regarding the Bosnian death toll is the ‘Bosnian Book of the Dead’ project, conducted by the Sarajevo Research and Documentation Centre and funded by the Norwegian government. By examining legal–bureaucratic records, this project has given an estimate that the total number of deaths for the entire Bosnian war was 97, 207, the ethnic breakdown of the dead being 65.88 per cent Bosnian Muslim, 25.62 per cent Bosnian Serb, and 8.01 per cent Bosnian Croat. See www.idc.org.ba/presentation/Bosnia%20and%20Herzegovina.zip (PowerPoint presentation).

20 See Prosecutor v. Krstić, Case No. IT-97–24-T; Prosecutor v. Kordić & Cerkez, Case No. IT-95–14/2; Prosecutor v. Stakić, Case No. IT-97–24; Prosecutor v. Natelitić & Martinović, Case No. IT-98–34; Prosecutor v. Sikirica, Case No. IT-95–8; Prosecutor v. Krajišnik, Case No. IT-00–39.

21 The use of ‘genocide’ as a politicized term has grown steadily in international relations. In fact, one can speak of an implicit ‘genocide test’ which has become the discursive basis for political intervention in international ‘humanitarian’ crises. The recent Darfur quagmire provides a useful illustration of this politico-legal practice. The Report of the International Commission of Inquiry on Darfur, chaired by a former president of the ICTY, Antonio Cassese, found that ‘genocidal intent’ was not established despite evidence of widespread atrocities and probably crimes against humanity. This finding was symbolically taken by Western press and policymakers to represent a legal justification for political inaction (i.e. a political problem which was not serious enough). See W. Hoge, ‘UN Finds Crimes, Not Genocide in Darfur’, New York Times, 1 February 2005, Section A, Column 1, Foreign Desk, 3; G. Dyer, ‘Darfur War Is Cruel, but It's Not Genocide’, Japan Times, 9 October 2006. See also Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004, Geneva, 25 January 2005, available at www.un.org/news/dh/sudan/com_inq_darfur.pdf (last visited 10 December 2007); Luban, D., ‘Calling Genocide by Its Rightful Name: Lemkin's Word, Darfur, and the UN Report’, (2006) 7 Chicago Journal of International 303Google Scholar.

22 See Schabas, W. A., ‘Whither Genocide? The International Court of Justice Finally Pronounces’, (2007) 9 Journal of Genocide Research 183, at 183CrossRefGoogle Scholar; M. Milanović, ‘State Responsibility for Genocide’, (2006) 17 EJIL 553, at 592.

23 See P. Pierson, Politics in Time: History, Institutions, and Social Analysis (2004); A. Abbott, Time Matters: On Theory and Method (2001).

24 Regarding the Nuclear Weapons case, Koskenniemi opens his discussion with precisely this dilemma: ‘the dichotomy of reason and passion . . . in the construction of what is “legal”. . .’. ‘Faith, Identity, and the Killing of the Innocent’, supra note 6, at 137.

25 M. Milanović, ‘State Responsibility for Genocide: A Follow-Up’, (2007) 18 EJIL 669, at 672. Milanović states at 694 that the Bosnian litigation team should have pursued its ‘best’ as opposed to its ‘maximal’ case. But analytically we may want to reconceptualize the question of litigation strategy in terms of locality-centred versus state-centric claims.

26 Here again the press release of President Higgins is instructive:

This is the first legal case in which allegations of genocide have been made by one State against another. The International Court of Justice has been acutely sensitive to the responsibilities that have fallen on it. The Court – as it always does – has meticulously applied the law to each and every one of the issues before it. These judicial considerations have led, in the event, to mixed findings as far as the Parties are concerned. That does not mean, of course, that the Court has been seeking a political compromise, still less any predetermined outcome. (‘Statement to the Press’, supra note 14)

27 The extent to which the ICJ had to confront an impassioned litigation strategy also meant that the Court's ‘judicial function’ and ‘objective integrity’ were placed under considerable stress. For a discussion of ‘the judge’ as a perceived ‘impartial technician’, see Koskenniemi, From Apology to Utopia, supra note 6, at 491–4. For a traditional take on the social significance of ‘the judge’ as ‘neutral’ arbiter see Moore, W. H., ‘The Judicial Approach to International Affairs’, 39 Transactions of the Grotius Society, Problems of Public and Private International Law, Transactions for the Year 1953, at 133–44Google Scholar; and Fitzmaurice, G. G., ‘The United Nations and the Rule of Law’, 38 Transactions of the Grotius Society, Problems of Public and Private International Law, Transactions for the Year 1952, at 135–50Google Scholar.

28 Genocide judgment, supra note 1, paras. 65–6.

29 Milanović, supra note 22, at 589.

30 Schabas, supra note 22.

31 Opening address of Phon van den Biesen to the ICJ, Application of the Convention of the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), CR 2006/2, 27 February 2006, Verbatim Record, at 18, 21–2, paras. 2 and 16.

32 For valuable discussion of the many political and historical dimensions of the Genocide case, see V. Dimitrijević and M. Milanović, ‘The Strange Story of the Bosnian Genocide Case’, (2008) 21 LJIL 65.

33 President Higgins hints as much in her opening statement to the press: ‘I am also very mindful of how important it is, in reporting this case, that the Press have really understood what we have said and relay it correctly.’ ‘Statement to the Press’, supra note 14.

34 D. Bloxham, ‘Genocide on Trial: Law and Collective Memory’, in H. R. Reginbogin, C. J. M. Safferling, and W. R. Hippel (eds.), The Nuremberg Trials: International Criminal Law since 1945 (2006), 73. See also D. Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (2001).

35 It should be recalled that, at one stage, there was a counterclaim pending against Bosnia and Herzegovina. See ‘Counter-Memorial’, supra note 9, at 349–1075.

36 Prosecutor v. Delalić et al., Case No. IT-96–21, ‘Čelebići Camp’. See also Prosecutor v. Hadzihasanović & Kubura, Case No. IT-01–47; Prosecutor v. Rasim Delić, Case No. IT-04–83.

37 M. Mandel, How America Gets away with Murder: Illegal Wars, Collateral Damage and Crimes against Humanity (2004), at 122.

38 Koskenniemi, From Apology to Utopia, supra note 6, at 154.

39 Yet, to date, even the ICTY has found genocide only in the case of Srebrenica. See Prosecutor v. Krstić, supra note 20.

40 See S. Wittich, ‘Permissible Derogation from Mandatory Rules? The Problem of Party Status in the Genocide Case’, (2007) 18 EJIL 591.

41 See P. W. Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (1999), at 1:

The study of law has never been much of a theoretical discipline . . . Expertise in each specialty is expressed in the form of proposals for legal reform . . . The professor of constitutional law spends most of her time explaining how the Supreme Court should have ruled, or should rule. Even jurisprudence falls into this pattern of critique and reform . . . There is remarkably little study of the culture of the rule of law itself as a distinct way of understanding and perceiving meaning in the events of our political and social life.

42 K. C. Moghalu, Global Justice: The Politics of War Crimes Trials (2006), at 5–6.

43 For further discussion on the political foundation of law, see W. Levi, ‘The Nature and Function of Law’, in Law and Politics in the International Society (1976), 9–35.

44 Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986 (hereinafter Nicaragua).

45 Cassese, supra note 14; Luban, supra note 14.

46 Cassese, supra note 14.

47 Nicaragua, supra note 44, para. 115.

48 Cassese, supra note 14, at 666.

49 Prosecutor v. Tadić, (Tadić IT-94–1 ‘Prijedor’), ICTY Trial Chamber (7 May 1997, 14 July 1997, 11 November 1999); Appeals Chamber (27 January 2000).

50 Genocide judgment, supra 1, paras. 403–406.

51 Cassese, supra note 14, at 654–5, 665–7.

52 Koskenniemi, From Apology to Utopia, supra note 6, at 476–7, 486.

53 The illusion harboured by conventional legal theory that international law can correct international politics is discussed by Koskenniemi, ibid., 476–90:

In order to avoid the accusation that he is merely another objectivist in disguise – and thus himself vulnerable to the objections about apologism/utopianism – the critical lawyer must accept the reality of conflict. He must renounce the presumption of the existence of an external rationality in which all possible conflicts would have already been solved and the professional image of the lawyer as the one possessed with a unique technique for seizing these solutions. (486)

54 Cassese, supra note 14, at 666.

55 Moghalu, supra note 42, at 5–8.

56 We should recall how the US ‘war on terror’ and its justification for the invasion of Iraq involved charges of ‘war crimes’ and ‘weapons of mass destruction’. See E. Bumiller, ‘US Names Iraqis Who Would Face War Crimes Trial’, New York Times, 16 March 2003, available at http://query.nytimes.com/gst/fullpage.html?res=9804E2DD1631F935A25750C0A9659C8B63. See also The National Security Strategy of the United States of America (17 September 2002), available at www.whitehouse.gov/nsc/nss.pdf, where US President George W. Bush is cited as declaring that ‘We build a world of justice, or we will live in a world of coercion.’

57 On 29 June 2007, a forum on the Genocide case was held by the Belgrade Centre for [Human Rights] (sic). At this round-table discussion, Bosnia's agent before the ICJ, Sakib Softić, and criminology professor Hasan Balić of the University of Sarajevo spoke of how the Sarajevo authorities hoped that the ICJ ruling would be a means for undoing the Dayton Peace Accord and its constituent Serbian entity (Republika Srpska); see (in Serbian) ‘O presudi Medjunarodnog suda prave’, B92 News, 29 June 2007, available at www.b92.net/info/vesti/index.php?yyyy=2007&mm=06&dd=29&nav_category=64&nav_id=253280. See also N. Wood, ‘Agreement on Bosnian Police Force Put on Hold’, International Herald Tribune, 2 October 2007, 8.

58 Note how the US invasion of Iraq in 2003 was cloaked with a reference to the legality of prior UN Security Council resolutions. See the statement of President George W. Bush in ‘We're Calling for the Vote’, Washington Post, 7 March 2003: ‘The world needs him to answer a single question: Has the Iraqi regime fully and unconditionally disarmed, as required by resolution 1441, or has it not?’, A18.

59 This was the conclusion of the only judge to provide a full dissent at the Tokyo Tribunal, Indian judge Radhabinod B. Pal. Judge Pal was clearly troubled by the performance of ‘victor's justice’ (citing Hans Kelsen):

The punishment of war criminals should be an act of international justice, not the satisfaction of a thirst for revenge. It does not quite comply with the idea of international justice that only the vanquished states are obliged to surrender their own subjects to the jurisdiction of an international tribunal for the punishment of war crimes. (‘Judgment of Mr Justice Pal, member from India’, in B. V. A. Röling and C. F. Rüter (eds.), The Tokyo Judgment: The International Military Tribunal for the Far East, 29 April 1946–12 November 1948, vol. 2 (1977), 531. See also ibid., 1035–8.)

60 Koskenniemi, From Apology to Utopia, supra note 6, at 477.

61 This fits within the ‘axis of evil’ frame famously proclaimed by George W. Bush in his State of the Union address on 29 January 2002.

62 This is not to be equated with an argument of ‘equal responsibility’ or equal proportionality for crimes committed.

63 This was an issue with which Judge B. V. A. Röling, of the Tokyo Tribunal, was confronted:

I sometimes had contacts with Japanese students. The first thing they always asked was: ‘Are you morally entitled to sit in judgement over the leaders of Japan when the Allies have burned down all of its cities with sometimes, as in Tokyo, in one night, 100,000 deaths and which culminated in the destruction of Hiroshima and Nagasaki? Those were war crimes.’ I am strongly convinced that these bombings were war crimes. (B. V. A. Röling and A. Cassese, The Tokyo Trial and Beyond (1993), 84)

64 One can infer from President Higgins's press statement that the court was clearly frustrated by the character of the claim and would have preferred to give a more grounded and specific judgment:

In this case, the Court's jurisdiction is solely based on article IX of the Genocide Convention. The court has no authority to rule on alleged breaches of obligations under international law other than genocide, as defined by the Genocide Convention. This is important to understand because in this case we were confronted with substantial evidence of events in Bosnia and Herzegovina that may amount to war crimes or crimes against humanity – but we had no jurisdiction to make findings in that regard. (‘Statement to the Press’, supra note 14)

65 Cassese, supra note 14, at 651.

66 L. Douglas, ‘History and Memory in the Courtroom: Reflections on Perpetrator Trials’, in Reginbogin, Safferling, and Hippel, supra note 35, at 104.

67 See M. Shaw, ‘The International Court of Justice: Serbia, Bosnia, and Genocide’, Open Democracy, 28 February 2007, available at www.opendemocracy.net/node/4392/print; Cassese, supra note 4; Luban, supra note 14; Wedgwood, supra note 4.

68 Douglas, supra note 66.

69 For an interesting discussion on the politics of memory and history see Lebow, Kansteiner, and Fogu, supra note 9, at 299:

The differentiation between history and memory is a recent invention. As part of large-scale relabeling efforts, many representations of the past that were previously studied under the rubrics of popular history, folk history, or history in everyday life have been rediscovered as collective memories. At first this terminological shift seems relatively meaningless until one considers its political and epistemological implications.

70 Max Weber referred to ‘inconvenient facts’ as those contrary to ‘established beliefs’. See M. Weber, From Max Weber: Essays in Sociology, ed. and trans. H. H. Gerth and C. Wright Mills (1970), 147.

71 This allegation was made in a letter to the Croatian newspaper Jutarnji List published on 14 April 2007, available at www.jutarnji.hr/dogadjaji_dana/clanak/art-2007,4,14Nice_Ponte,70438.jl. A modified English translation was also published by the International Herald Tribune, available at www.iht.com/articles/2007/04/16/opinion/edlet.php. See also M. Simons, ‘War Crimes Court Let Serbia Censor Record’, International Herald Tribune, 10 April 2007, 2.

72 The politics of ‘memory’ has been most evident with the ICTY, where a growing number of ‘insider’ or ‘true story’ anthologies have been published by former officials. See, e.g., M. P. Scharf, Balkan Justice: The Story behind the First International War Crimes Trial since Nuremberg (1997); R. J. Goldstone, For Humanity: Reflections of a War Crimes Investigator (2000); F. Hartmann, Paix et Châtiment (2007); C. Del Ponte, La Caccia: Io e I Criminali di Guerra (2008).

73 A claim not supported by the findings of the ICTY thus far, which found genocide only in the case and locality of Srebrenica. See Prosecutor v. Krstić, supra note 20.

74 Shaw, supra note 67.

75 For further discussion on the nature of political concepts and the terms of discourse see L. Wittgenstein, Philosophical Investigations, ed. G. E. M. Anscombe (1997), para. 46; W. Connolly, The Terms of Political Discourse (1983); J. Davis, Terms of Inquiry (2005); and F. Kratochwil, ‘Global Governance and the Emergence of World Society’, in N. Karagiannis and P. Wagner (eds.), Varieties of World-Making: Beyond Globalization (2007).

76 Raphael Lemkin in fact constructed the term ‘genocide’ based on this linguistic premise. See S. Power, ‘Raising the Cost of Genocide’, in N. Mills and K. Brunner (eds.), The New Killing Fields: Massacre and the Politics of Intervention (2003), 245–64; R. Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (1944).

77 With respect to the role of language and interpretation in international law see Koskenniemi, From Apology to Utopia, supra note 6, at 43:

It is also commonly recognized that the openness of legal language causes contradiction in argument. One man's ‘aggression’ is another's ‘self-defence’. It is pointed out that although most countries use the available legal vocabulary, the meanings they attach to central expressions such as ‘equality’, ‘humane treatment’ or even ‘State’ vary to a great extent.

78 The use of ‘genocide’ to characterize all atrocities committed has been a standard rhetorical technique across the former Yugoslavia, which is meant to convey national sacrifice and justification for special status. This phenomenon is visible in how victims across the former Yugoslavia self-identify themselves as ‘victims’ of ‘genocide’: see D. B. MacDonald, Balkan Holocausts? Serbian and Croatian Victim-Centred Propaganda and the War in Yugoslavia (2002), 39–62.

79 For an excellent discussion of the evidentiary problems of the case, see Dimitrijević and Milanović, supra note 32, at 88–91.

80 Genocide judgment, supra note 1, paras. 370–371 and 421–423. See also the discussion regarding the dolus specialis in Schabas, supra note 22, at 188–90.

81 Shaw, supra note 67.

82 See A. Ashworth, Sentencing and Criminal Justice (2005), 72–91.

83 For example, an opinion survey commissioned in July 2004 by the Federal Ministry for Human and Minority Rights (Serbia and Montenegro) found that 76 per cent of respondents considered the ICTY to be a ‘political’ rather than ‘legal’ institution: see ‘Iztraživanja javnog mnenja o Haškom Tribunalu’, available at www.humanrights.gov.yu/files/doc/stavovi_prema_ICTY_jul2004.doc.

84 For a vivid anthropological example, see J. Tošić, ‘Transparent Broadcast? The Reception of Milošević's Trial in Serbia’, in M.-B. Dembour and T. Kelley (eds.), Paths to International Justice: Social and Legal Perspectives (2007), 92–3:

[T]he live broadcast of the [Milošević] trial [in Serbia] often seemed to miss its target and even seemed to produce the opposite effect to that expected by representatives of local civil society. Victims of human rights abuses, who appeared as witnesses before the Tribunal, were not perceived as people whose lives had been marked by grave harm, personal loss and the quest for justice. In the context of resurgent nationalism in Serbia, they were often perceived as fake and even primed witnesses. Rather than the intended ‘catharsis’ through confrontation with the crimes, and, thus, the mobilisation of empathy and responsibility, the broadcasting of the trial was coupled, if not exclusively with patriotism and nationalism, then certainly with a kind of sensationalism. Instead of enhancing concern for and opinion about the question of war crimes, the trial coverage seemed to focus the viewers' attention on ‘thrilling’ witnesses, the hiatuses of the indictment, the scoring of the prosecution and the defence team, or the ‘exposure’ of particular witnesses by Milošević. The impression I built from the interviews I conducted is that people spoke about the Tribunal as they would about an exciting football match or a thriller.

85 See D. F. Orentlicher, ‘Addressing the Past’, in D. F. Orentlicher (ed.), Shrinking the Space for Denial: The Impact of the ICTY in Serbia (2008), at 85–94.

86 When thinking about the nationalist dynamic in relation to the Genocide case we should keep in mind Brubaker's admonition:

Ethnicity, race, and nation should be conceptualized not as substances or things or entities or organisms or collective individuals – as the imagery of discrete, concrete, tangible, bounded, and enduring ‘groups’ encourages us to do – but rather in relational, processual, dynamic, eventful, and disaggregated terms . . . Shifting attention from groups to groupness . . . allows us to treat groupness as an event, as something that ‘happens’. (R. Brubaker, Ethnicity without Groups (2004), 11–12)

87 The term ‘depoliticize’ is used in contrast to other terms such as ‘relativization’ or ‘de-ethnification’.

88 A hopeful example is the prosecution of the ‘Scorpions’ police unit by the Serbian government, where after the airing of a video on Radio Television Serbia and B92, showing the execution of six Bosnian Muslim men from Srebrenica, the then Serbian Prime Minister Koštunica announced the arrests of several members of the unit caught on the tape. See ‘Serbian Killings in 1995 on Video’, International Herald Tribune, 4 June 2005, 5.

89 Yet we have to bear in mind the role time plays, both as a process and in terms of contested responses vis-à-vis social responsibility. The cases of post-war Germany and post-Franco Spain offer insights into these non-linear processes of social recognition and contestation. See M. Davis, ‘Is Spain Recovering Its Memory? Breaking the Pacto del Olvido’, (2005) 27 Human Rights Quarterly 858; W. Kansteiner, ‘Losing the War, Winning the Memory Battle: The Legacy of Nazism, World War II, and the Holocaust in the Federal Republic of Germany’, in Lebow, Kansteiner, and Fogu, supra note 9, at 102–46.

90 For instance, Bosnia's litigation team before the ICJ tried to use the Serbian government's public condemnation of crimes committed at Srebrenica and Bosnia as evidence of admission regarding Serbia's responsibility for the Srebrenica massacre: Genocide judgment, supra note 1, para. 377.

91 For a critical discussion of trials and the catharsis of ‘truth telling’, see E. Stover and H. M. Weinstein (eds.), My Neighbour, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (2006).

92 See Orentlicher's discussion of the work of the ICTY outreach program in Serbia: Orentlicher, supra note 85, at 95–100.

93 See ‘Bosnian Courts Said to Need around 100 Years to Try All War Crimes Suspects’, BBC Monitoring Europe – Political, 12 August 2007, available at http://0-www.lexisnexis.com.bibliosun.iue.it/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T3700489280&format=GNBFI&sort=BOOLEAN&startDocNo=1&resultsUrlKey=29_T3700489286&cisb=22_T3700489283&treeMax=true&treeWidth=0&csi=10962&docNo=4; N. Cica, ‘Discovering the Right Culprits Matters, Especially if It's Genocide’, Age (Melbourne), 7 March 2007.

94 See ‘Bosnian Commentary Doubts Sincerity of Tadić's Apology to Croatians, Bosnians’, BBC Monitoring Europe – Political, 27 June 2007 http://0-www.lexisnexis.com.bibliosun.iue.it/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T3700627655&format=GNBFI&sort=BOOLEAN&startDocNo=26&resultsUrlKey=29_T3700627667&cisb=22_T3700627666&treeMax=true&treeWidth=0&csi=10962&docNo=46.

95 See A. Cowell, ‘Hand-Me-Downs: When Parents Leave a Bequest of Hatred’, New York Times, 23 June 2002, Section 4, Column 1; Week in Review Desk, at 1. See also the commentary of W. Montgomery, a former US ambassador to Croatia and Serbia, ‘There's Plenty of Blame for Us All; Srebrenica, 10 Years Later’, International Herald Tribune, 12 July 2005, 6.

96 The extent to which alleged judicial ‘objectivity’ could have resolved the historical dispute behind this case becomes manifest with the contrasting reactions of ethnic leaders in Bosnia to the judgment. For instance, the reaction of the Croat member of the Bosnian Presidency, Željko Komšić, was quoted as follows: ‘We must respect the ruling, but I know what I will teach my child.’ In contrast, Milorad Dodik, the Bosnian Serb Prime Minister, was more forthright with his ‘private’ (re)characterization of judgment: ‘It was a heinous crime in Srebrenica and not genocide.’ See ‘UN Court Rules Serbia Did Not Commit Genocide in Bosnia’, Independent, 27 February 2007, available at www.independent.co.uk/news/europe/un-court-rules-serbia-did-not-commit-genocide-in-bosnia-438019.html. See also ‘Bosnian Serb Veterans Print Mladic T-shirts for Srebrenica Commemoration’, BBC Monitoring Europe – Political, 12 July 2006, available at http://0-www.lexisnexis.com.bibliosun.iue.it/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T3700489280&format=GNBFI&sort=BOOLEAN&startDocNo=1&resultsUrlKey=29_T3700489286&cisb=22_T3700489283&treeMax=true&treeWidth=0&csi=10962&docNo=18; ‘60,000 Attend Concert of Controversial Croatian Singer: Police’, Agence France-Presse, 30 May 2008, available at http://0-www.lexisnexis.com.bibliosun.iue.it/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T3856915815&format=GNBFI&sort=BOOLEAN&startDocNo=1&resultsUrlKey=29_T3856915818&cisb=22_T3856915817&treeMax=true&treeWidth=0&csi=10903&docNo=1.

97 Lord Mansfield in R v. Wilkes, (1770) 4 Burr 2527, at 2561–2 (98 ER 327, at 346–7).

98 Koskenniemi, From Apology to Utopia, supra note 6, at xx, 20–5, 42–8, 143–54, 458–64, 466–76, 494–8.

99 Koskenniemi's conclusion regarding the Nuclear Weapons case is particularly apt:

[T]his is so . . . under the assumption that the language of the law is a universal language, amenable to statements of rational principle that can be uniformly applied in essentially similar situations. This is, of course, the faith needed to sustain a legal technique through which the identity of the lawyer has been constituted vis-à-vis politicians, diplomats, or moral theorists. It is a faith created through the mistrust of politics, ideology, and the passions that have created so much human suffering. It is a faith, however, that never acknowledged itself as such, but was presented as the natural flow of an objective, impersonal reason. (Koskenniemi, supra note 6, at 161)

100 Luban, supra note 14.

101 C. von Clausewitz, On War (1976), 87.

102 See Orentlicher, supra note 85, at 93.

103 In her address to inaugurate the War Crimes Chamber of the Court of Bosnia and Herzegovina, then ICTY Prosecutor, Carla Del Ponte acknowledged the extent to which popular interpretations of the ICTY were filtered by national politics:

The debate on war crimes in the former Yugoslavia is not subsiding. It is present in the daily life and media, and always politicized. This is the environment you will have to work in: the public is only interested about those suspected or accused, or in politically, not judicially, defined truth. (‘Address of the Prosecutor at the Inauguration of the War Crimes Chamber of the Court of BH’, ICTY press release, The Hague, 9 March 2005, CDP/P.I.S./944, available at www.un.org/icty/pressreal/2005/p944-e.htm (emphasis in original))

104 A. Max, ‘Highest UN Court to Rule Whether Serbia, as a Nation, Committed Genocide in Bosnia’, Associated Press, 26 February 2007, available at http://0-www.lexisnexis.com.bibliosun.iue.it/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T3721769133&format=GNBFI&sort=BOOLEAN&startDocNo=26&resultsUrlKey=29_T3721769139&cisb=22_T3721769138&treeMax=true&treeWidth=0&csi=304478&docNo=32.

105 R. A. Falk, ‘The Relevance of Political Context to the Nature and Functioning of International Law: An Intermediate View’, in K. Deutsch and S. Hoffman (eds.), The Relevance of International Law: Essays in Honor of Leo Gross (1971), 177.

106 D. J. Scheffer, ‘International Judicial Intervention’, (1996) 102 Foreign Policy 51.