1. Introduction
After 14 years of arduous litigation the formal proceeding of Bosnia and Herzegovina v. Serbia Footnote 1 came to a juridical close on 27 February 2007 with the release of the Genocide judgment by the International Court of Justice (ICJ, the Court). In its ruling the ICJ held that the Republic of Serbia was not responsible for genocide, the conspiracy to commit genocide, or the incitement of genocide pursuant to the Genocide Convention of 1948. However, the Court did find that Serbia was responsible for two lesser but significant claims: failing to prevent genocide at Srebrenica in 1995 and failing to apprehend and extradite the Bosnian Serb commander, General Ratko Mladić.Footnote 2
For those cognizant of the agonizing and piercing contradictions which characterized the Bosnian war of 1992–5, the outcome of the Genocide case reflected, however painfully for some, the twisted and murky reality that the Yugoslav wars of secession embodied. In this light, the judgment came less as a surprise and more as a respite. Yet for those who expected the judgment decisively to redress Bosnia's historical and political calamity, the expected ‘knockout’ decision never materialized. Hence in the aftermath of the judgment both advocates for Bosnia's claim and champions of ‘judicial activism’ scrambled for pen and paper to contest the ICJ's ruling, arguing that the Court had failed to extend ‘the rule of law’ and consequently denied a self-evident and ‘just’ outcome. The stylized characterization voiced privately by many critics was that the Genocide judgment amounted to ‘bad law’ and ‘good politics’. In sum, the judgment did not deliver the objective ‘closure’Footnote 3 many had expected or assumed, producing instead a torrent of political and legal controversy, and leaving many perplexed at how the Court got it all wrong.Footnote 4
This article enters the fray over the Genocide judgment, but with a perspective that is admittedly foreign to the present discussion within international law, as it examines the Genocide case outside the hermetic box of international law as a ‘discipline’ and considers it from a perspective of law as politics, employing an approach which is interdisciplinary, asking international lawyers to view Bosnia v. Serbia not as a discrete legal entity but as a problem constituted and surrounded by politics. The manner in which the Genocide case will be assessed is from a perspective unconventional to international lawyers; it will assume that international law is not an ‘objective’ institution, but rather a contestable political project. In other words, what will distinguish the analysis here from mainstream legal approaches is the aim of considering the political world within which international adjudication lives and therefore engaging the political dimensions that constitute the case. To this end, the Genocide case is treated foremost as a political and not a legal artifice, a stance which aims to reveal how difficult an assessment of the judgment is within the black-letter bounds of conventional international law.
Hence the task here is to reveal for international lawyers how politics permeates both the Genocide case and its interpretation, aiming to show how allegedly ‘objective’ or legalistic characterizations of the judgment as ‘bad law’ and ‘good politics’Footnote 5 in fact promote a superficial understanding of international law as something fantastically detached from politics – implying that truly ‘just’ or ‘good’ law is an apolitical and self-evident species. Here I draw upon Martti Koskenniemi's critical work regarding the limits of ‘legal objectivity’ and, in particular, his assertion that international law lacks an ‘autonomous legal rationality’ which is capable of resolving profound questions of political ‘justice’.Footnote 6 This paper argues, therefore, that discursive strategies which aim to delegitimize the judgment through a ‘bad’ versus ‘good’ characterization are misleading, as they obscure the political choices which were thrust upon the ICJ, placing the Court in an awkward situation. Thus the standard by which this article evaluates the ruling relates not to whether the Court delivered a ‘knockout’ blow in favour of any political claim, but whether the Court had the moderation to restrict its involvement in a complex political struggle, circumscribing its discretion to determine law and going no further, lest it compromise its legal integrity and legitimacy.Footnote 7
For this reason, I claim that the Genocide judgment was a restrained but careful response, denying an expansive construing of the terms ‘state responsibility’ and ‘genocide’. Clearly this is a contention that runs against the present grain in mainstream legal circles; however, it is an important argument justified by the pervasive politics of this case, visible both at the case's origin and in its present interpretation. The ICJ, I argue, thwarted a further politicization of international law by denying international courts the sweeping discretion to adjudicate on the ‘overall’ character of international conflicts, a development that in political practice would have invited savvy combatants to use international courts as sites for the production of strategic (de)legitimacy.
Indeed, the judgment was regrettable in that it left thousands of victims without judicial redress and compensation, and this is unfortunate.Footnote 8 Yet one has to question whether the legal means employed here were in fact fully suited to the enormity of Bosnia's catastrophe and the particularities of its problem. In other words, serious reflection should be taken as to whether this type of litigation and claim was the best manner in which to secure remedy for the victims of Bosnia's atrocitiesFootnote 9 – assuming that victim compensation was indeed the key principle which drove this suit. Many embedded within the profession and the discipline, trained to reproduce its litigious and adversarial logic, might not concede that the conventional approach employed was ill-suited to the political intricacies of the Bosnian quagmire. Nonetheless, the purpose of this article is to instil reflection into the discussion of this case, and it is hoped that the argument herein sparks deliberation on the role of international law in problems of world politics, beyond ex ante and objectified representations of political ‘justice’.
From these initial and critical remarks the plan of the present article is derived. In the first part (section 2), I recontextualize the Genocide case by reanimating its political foreground,Footnote 10 attempting to show how the case was not a discrete legal entity but a political and cultural object immersed in the politics and controversy of Bosnia's war. Subsequently, in the second part (section 3), I extend the political analysis by looking at both legal and political criticisms of the case, particularly the respective comments of professors Antonio Cassese and Martin Shaw. Here I endeavour to explore how politics has in fact followed the judgment through the means of interpretation, whereby analyses endeavour to shape the meaning and memory of the judgment in a manner consistent with a political perspective. In the final section, I conclude the analysis by re-situating the Genocide judgment within the broader problematic of ‘justice’ in international politics, pointing to the contentious nature of this social artifice.
2. Politics qua law? (Re)contextualizing the Genocide case and its politics
A key criticism of the study of international law is its removal from practice and social context,Footnote 11 whereby the ‘reality’ of law is studied in a functionalist and black-letter manner with limited understanding for the broader context in which law is set. In the case of the Genocide judgment, this orthodox approach becomes particularly problematic, as our ability to assess the merits of the judgment is hindered when we detach the case from its nested political contexts. Genocide litigation at the level of state responsibility is more than an exercise of legal imperative; it is also a profoundly political act in terms of both intent and effect.
Therefore my discussion of the Genocide case deviates somewhat from a standard ‘facts/law’ case summary,Footnote 12 endeavouring instead first to situate the case within its intricate political foreground. Such an approach is analytically valuable, I argue, because it gives us a fuller sense of just how politically complex and difficult this case was for the ICJ.Footnote 13 While some may claim that the application provided the Court with an opportunity for juridical entrepreneurship,Footnote 14 the argument here is that the heavy political overtones attached to the case probably put the Court under significant strain, leading the ICJ to the cautious stance it took.Footnote 15
Conventional reportage of the Genocide case typically starts with the judgment date: 27 February 2007. Hence, with the stroke of a pen, key issues which make the Genocide case so complicated and controversial are ‘forgotten’ and removed from analytical view. Alternatively, I argue, the more appropriate date to begin a discussion of the case is the day on which the application was filed: 20 March 1993. Why is this date significant? Those familiar with the history of the conflict are sure to make the connection: the case began during the early stages of the Bosnian war, two years before the massacre at Srebrenica and shortly after the recognition of Bosnia and Herzegovina's statehood.Footnote 16 This shift in temporal focus, I argue, sheds valuable light on two extra-legal features of the case, aspects which illuminate how inherently political this case was and difficult to adjudicate within the bounds of law qua law.
First, the genocide claim before the Court, filed by an embattled and outgunned government in Sarajevo, was probably not a legal end in itself but also part of that government's war strategy of ‘internationalizing’ the conflict in the hope of garnering international assistance. One can infer that the charge of genocide was vital to the Sarajevo government's strategy of winning needed military intervention from Western and Islamic states.Footnote 17 Hence, from the very beginning of the Bosnian conflict, it was well known to international and domestic actors that the charge of genocide had mixed connotations; it did not simply relate to actus reus atrocities which had been a grizzly and egregious signature of the war, but the term ‘genocide’ also served as a discursive ‘frame’Footnote 18 or weapon, used publicly by the warring parties to impart ‘collective’ mens rea and procure legitimacy in the international sphere.Footnote 19
Second, the launch of the genocide application probably affected the character of subsequent warfare as the Court cast its shadow over the raging conflict, making the ICJ, and consequently the International Criminal Tribunal for the former Yugoslavia (ICTY), strategic theatres in the war. This is not to suggest that the ICJ application tempered the brutal conduct of the conflict, in fact the later Srebrenica massacre attests to quite the opposite – and this addresses the claim that genocide prosecutions ‘deter’ future atrocities. Rather, the prospect of litigation at the ICJ – and the ICTY – gave official credibility to the claim of genocide, much in the way a formal accusation of rape or murder would in domestic law (e.g. stigma); and this gave the Sarajevo government a degree of legitimacy to ‘frame’ the totality of the ongoing war not as a calamitous failure of international and domestic order but rather as a one-sided mass genocide.
In this way, the filing of the genocide application in the early stages of the conflict created an incentive to allege genocide at each opportunity for the purposes of legal and political expediency. This is not to suggest, rather cynically and inappropriately, that atrocities committed across Bosnia were fictional or staged for the benefit of the ICJ or the ICTY.Footnote 20 Instead, it is to emphasize that the entry of international law into the Bosnian conflict via genocide litigation at the ICJ and later the ICTY conferred a strategic advantage on those who made accusations of ‘genocide’; and whether or not such claims were based on truth, this ultimately politicized ‘genocide’ as a term.Footnote 21
Thus, for all those critics who scold Bosnia's litigation team for having failed to revise the claim that ‘all of Bosnia was engulfed in genocide’,Footnote 22 the informed rebuttal should suggest ‘path dependency’Footnote 23 as the likely cause of consternation: the timing of the suit during the war probably had a constitutive affect on how the claim was conceptualized, casting a cognitive shadow over how the action should be pursued in terms of later litigation strategy and narrative, leaving more shrewd and ‘rational’ courtroom options for the viewing gallery.Footnote 24 This suggestion here complements in large measure Milanović's thesis that electoral politics played a decisive role in why Sarajevo chose this ‘maximal’ claim: ‘this approach was the only one which would have been acceptable to Bosniak politicians, since they would have been unable to explain to their electorate how the dead of Srebrenica were victims of genocide, while the dead of Sarajevo were not’.Footnote 25
Hence by bringing these originating circumstances into focus, we can better appreciate not how the ICJ was adjudicating simply an ex post claim that had emerged after the war, but rather how this litigation was actually and symbolically part of the conflict, and based upon this inference, it was safe to assume that the Court was both aware and probably weary of the strident politicized baggage which came with this genocide application.Footnote 26 In fact, it should be emphasized that legal protocol, procedure, and ethics proved utterly powerless in checking this political firestorm at the courtroom door,Footnote 27 as the formal application documents and proceedings were littered with indications that the parties and the general public involved (in Bosnia and Serbia) viewed this case in an extra-legal manner:Footnote 28 it was expressly or implicitly a ‘final adjudication on the nature of the totality of the conflict, of whether it was a Serbian war of aggression or still in essence a civil war, albeit with extensive external involvement, in which no party was innocent’.Footnote 29 Furthermore, as both Milanović and Professor SchabasFootnote 30 astutely note, the Bosnian side made sure the Court had no option but to confront this political agenda by arguing, in an ‘all-or-nothing’ manner, that Serbia was responsible for wholesale genocide across Bosnia. An examination of the application pleadings, preliminary motions, written submissions, and transcripts of oral argument reveal just how central this political dimension was to the case, as Bosnia's barrister Phon van den Biesen illustrated with his opening statement to the bench:
2. . . . We will have to present to this Court the story of a prolonged, ugly, extremely vicious, genocidal, assault on people whose only mistake apparently was not to be born as a member of the Serbian nation. An armed onslaught which not only included ‘regular’ war crimes, but which also had, from the very, very early stages onward, the apparent characteristics of a military undertaking aimed at the destruction in whole or in part of a clearly ethnically, religiously defined group of people.
. . .
16. . . . Justice to a State and justice to a people which suffered from the most brutal violations of norms . . . This case, therefore, provide this Court with the opportunity, indeed with the duty, to demonstrate to the peoples of the world that, yes, the rule of law will prevail. The whole world is watching. The Balkans are watching, the surviving victims of the only genocide that occurred in Europe since the Second World War . . . are very closely, and filled with expectations, watching.Footnote 31
In sum, the ICJ was asked to decide or, more accurately, take sides, as the way in which the claim was pursued and the points of law it addressed left little room for anything more grounded and specific. The ICJ was put between a legal ‘rock’ and political ‘hard place’, a predicament which I have tried to reanimate here, albeit through a selective history of the conflict and litigation.Footnote 32
The Court was embroiled in a high-stakes political controversy, and while the ICJ could control its own proceedings, it could not control the way in which the hearings were used as a political and cultural object;Footnote 33 and this is significant if we relate this judgment to the earlier Nuremberg trials. The justices at the ICJ were facing a remarkably different situation from that at Nuremberg: contrary to popular representations, the International Military Tribunal (IMT) was not established to determine whether there was a conscious plan for the perpetration of genocide but rather to prosecute the ‘supreme crime’ of ‘aggressive war’; and it was only incidental to those proceedings that the horrid evidence of Nazis death camps, gas chambers, and crematoria came out, as Nuremberg historian Donald Bloxham aptly reminds us:
For the most part, when they were considered at the IMT trials, crimes against Jews qua Jews tended to be subsumed within the larger whole of Nazi atrocity, left ill-defined within the mass of murder, enslavement and war-related destruction affecting other groups in Europe. It is possible to argue, by piecing together disparate pieces of evidence marshalled in the Nuremberg courtroom, that the IMT trial presented a more-or-less representative if rudimentary outline of the ‘final solution of the Jewish question’. This, however, is a far different matter to attributing a conscious plan for such an outcome to the Allied prosecutors.Footnote 34
Yet the ICJ, in the case of the present genocide application, was asked by the Sarajevo government, in a politically charged manner,Footnote 35 to make this unequivocal finding of one-sided genocide across the whole of Bosnia, despite the fact that the ICJ's ad hoc neighbour, the ICTY, had found Bosnian forces to have committed egregious crimes by way of beatings, torture, sexual assault, and murder against Bosnian Serbs,Footnote 36 as Professor Michael Mandel sternly points out:
And did you ever hear of a Jewish concentration camp where Nazis were tortured, raped and killed by Jews? Because at the same time the Serbs were being ‘Nazis’ to the Muslims, the Muslims and Croats were being ‘Nazis’ to the Serbs. At least that was the finding of the same court that convicted [Bosnian Serb Duško Tadić]. In November 1998 the ICTY convicted a Bosnian Croat and three Bosnian Muslims for beatings, torture, sexual assault and murder of Bosnian Serbs in the Čelebići camp in May, June and July 1992. The sentences, as in the Tadić case, were for up to 20 years.Footnote 37
Why do these issues of case history and political context matter for an analysis of the judgment? What relevance do they have for our evaluation of the Genocide case? This section illustrates that the Genocide case was as much politics qua law as it was law qua law,Footnote 38 meaning that analysis of the judgment has to take account of this heavy extra-legal context, lest the judgment be detached from its political origins and subsequent political applications. Losing sight of such political foreground with this type of genocide claim, I argue, invariably leads to a kind of positivist myopia completely disconnected from the discursive and political dimensions of the case. As set out above, the extra-legal aspects which permeated this case indicated strongly that the ICJ was being asked to do more than adjudicate on the determined law provided for under the 1948 Genocide Convention; rather, it was asked to pronounce on the nature of the Bosnian war and the ‘criminal status’ of its combatants – a finding sought in the form of a one-size-fits-all ‘victim/perpetrator’ schematic.
One can safely infer that this extra-legal agenda probably raised the guard of the Court, which, it should be noted, did not share the entrepreneurial mission of ad hoc courts such as the ICTY and the International Criminal Tribunal for Rwanda.Footnote 39 Instead, the ICJ is established by the United Nations as the supreme authority on international law, and this probably meant that the Court would employ a restrictive style of lawmaking, characteristic of domestic ‘supreme courts’ in Euro-Atlantic countries. If such foreboding were true, then it was more than likely that caution would play some hand in the Court's ultimate reasoning and ruling, which did not portend well for those advocating a ‘knockout’ decision.
3. The Genocide case and the politics of its interpretation
This brings us, then, to the substance of the judgment and the further controversy it created upon release. Indeed, the road to the judgment was a proceduralFootnote 40 and political swamp, something emphasized vis-à-vis the latter factor in the preceding section. However, the judgment itself has not been a point of objective ‘closure’ either – as some had assumed – but rather a source of intense criticism and contestation from voices within and without ‘the discipline’ of international law.
Now, conventional legal thinking suggests that learned sources of critique matter most for the analysis and reading of law; that popular opinion is a kind intruding social obiter dicta.Footnote 41 However, such orthodoxy pertaining to the study of law mixes poorly with the argument pursued here that the type of litigation exhibited by Bosnia v. Serbia represents difficult law because it is immersed in political and social meanings, and hence the interpretive nature of the case requires that legal scholarship take account of these legal and political aspects of criticism, as both branches aim to shape legal ‘policy’ – albeit via different means and languages. This is not to suggest that conventional forms of legal critique should be considered to have a lesser analytical standing; rather it is to emphasize that war crimes litigation has always been constituted by politicsFootnote 42 and therefore our analytical forays must bear this in mind when considering more popular analyses of the judgment.Footnote 43
Based on these remarks, I deviate once again from an orthodox legal discussion, engaging both formal legal critique and political commentary made beyond ‘the discipline’. The justification, as indicated above, is that both formalized arenas (law and politics) attempt discursively to influence juridical reasoning, and this prospect requires us to scrutinize arguments which emerge from either domain. What I will do therefore in this section is discuss the legal critique of a former ICTY president, Professor Antonio Cassese, regarding the Court's failure to adopt an ‘overall control’ test, the aim being to contest political assumptions made by Professor Cassese in his strident endorsement of the latter test. In the succeeding section, I then consider political commentary made by international relations scholar Martin Shaw in the aftermath of the judgment, to discuss the broader language game regarding ‘genocide’ and ‘justice’ and the politics of collective memory which now encompass the Genocide case.
3.1. A judicious response?
As stated earlier, in its 171-page judgment the ICJ rejected claims that Serbia had committed, conspired to commit, or incited the commission of genocide pursuant to Articles II and III of the 1948 Genocide Convention. Yet the judgment was not a vindication, as the Court did hold Serbia responsible for (i) failing to prevent genocide at Srebrenica and (ii) failing to co-operate adequately with the ICTY. Clearly, the result has been controversial; however, what is most contested by lawyers is the way in which the ICJ came to that final determination, specifically its adherence to the high standard set by the Nicaragua case.Footnote 44 Legal commentators have lamented that by holding to the strictness of Nicaragua, the ICJ missed its juridical opportunity to extend ‘the rule of law’ into international politics.Footnote 45 However, the argument here is that such expectations are entirely misleading, as a lowering of the Nicaragua threshold would have in fact produced the inverse effect: a further politicization of judicial discretion via a loose standard for state responsibility, something malleable to mala fide and extra-legal agendas, expanding not ‘the rule of law’ but rather the scope for politicized jurisprudence.
Within legal circles, a key and authoritative critic of the Genocide judgment has been Professor Antonio Cassese. His criticism has been substantive and principled, challenging the Court's failure to overhaul Nicaragua and its onerous ‘effective control’ test.Footnote 46 The aforementioned case holds that breaches of international law can be attributed once evidence is produced showing that an impugned state had ‘directed or enforced the perpetration of acts contrary to human rights and humanitarian law alleged by the applicant State’.Footnote 47 In practical terms, what Nicaragua requires is evidence of direct orders or the enforcement of particular operations for a state to be held responsible for criminal actions undertaken by an alleged third party.
Professor Cassese is firm with his criticism of Nicaragua: he characterizes the case as an arbitrary hurdle, out of touch with a post-Nicaragua ‘reality’, its evidentiary requirements practically impossible to satisfy when one appreciates the murky nature of covert paramilitary operations, a type of warfare which is shadowy par excellence and unlikely to brandish dossiers of operational instructions. Further, Professor Cassese claims, the ever-expanding domain of terrorist warfare, involving small and insular units, makes the application of ‘effective control’ even more unwieldy when directed at a network of alleged non-state actors working under the fuzzy banner of al Qaeda.Footnote 48 In this light, Cassese implies, ‘effective control’ in effect delivers effective immunity for those armed groups and state sponsors clever (or incompetent) enough not to keep scrupulous records.
The key proof for Cassese's argument is precisely the Genocide judgment itself; here the ICJ, despite evidence of material support from Belgrade for the Bosnian Serb Army (BSA), held that Serbia did not sufficiently control the BSA to substantiate a finding that Serbia was responsible for genocide in Srebrenica or in Bosnia as a whole. In the ruling, the Court emphasized the ‘effective control’ test, insisting that evidence had to be produced which revealed that Serbia had directed specific acts of genocide, either by way of explicit instructions, direct influence, or hierarchical control, as the Court noted at para. 401:
. . . Genocide will be considered as attributable to a State if and to the extent that the physical acts constitutive of genocide that have been committed by organs or persons other than the State's own agents were carried out, wholly or in part, on the instructions or directions of the State, or under its effective control . . .
Clearly the ICJ's adherence to Nicaragua proved detrimental to Sarajevo's case; the Court heard evidence of Serbia's general assistance to the BSA and yet no ‘smoking gun’ was found linking Belgrade directly to the impugned actions of the Bosnian Serbs. Even more consternating, the ICJ rejected a liberalized test for state responsibility developed by the ICTY in Tadić Footnote 49 and championed by the then Judge Cassese, that of ‘overall control’ – a test that articulated a lower standard of proof which surely Sarajevo would have relished in light of the circumstantial evidence in the case. The Court held, however, that ‘overall control’ was inapplicable, as it was overly expansive for a determination as delicate as state responsibility.Footnote 50
One can characterize Professor Cassese's reply to the ICJ's assertion as stern, approaching the Court's adherence to Nicaragua not with a probing inquiry into the reasons for its determination, noting the complex and politicized facts that probably prompted the Court to reach for ‘effective control’, but rather framing the outcome as a legal absurdity, a prime example of why Nicaragua should be watered down. In other words, Cassese blames the high threshold as opposed to asking why the Court found it necessary to resort to such a high standard of proof based on the case particulars. Hence, by approaching the argument in this manner, we bring to the fore an assumption which seems to direct Professor Cassese's analysis: he had a different result in mind, and Cassese's criticism of the judgment relates to his belief that the ICJ should have engaged in judicial lawmaking.
Of course, the esteemed professor advocates a ‘legal’ position which is persuasive by conventional standards. He proposes the ‘overall control’ test as the means by which to remedy a porous ‘effective control’ test, to cast a finer net at the problem of state responsibility and therefore make such findings easier for international courts.Footnote 51 One can easily appreciate this argument from a purely technical and legal standpoint; Cassese's proposal vis-à-vis ‘overall control’ is consistent with the general expansion of equitable concepts across and within North Atlantic legal codes, finding kin with such innovations as vicarious liability, constructive liability, and corporate responsibility in areas as diverse as labour, contract, corporate, and tort law.
Further still, the professional and panacea packaging used by Professor Cassese fits nicely with an Enlightenment narrative of ‘progress’, whereby technical innovations are believed to further ‘the rule of law’ in previously untouched reaches of political and social life, civilizing allegedly anarchical domains of human activity (e.g. international politics).Footnote 52 From this perspective we can appreciate that the power of Professor Cassese's critique and proposal resides less in its appropriateness for the case particulars and more in how he frames ‘overall control’ as a progressive and universal corrective, allegedly vital and self-evident for the pursuit of an expanded ‘rule of law’.Footnote 53 As he asserts, international courts should be able readily to establish state responsibility by finding that
certain . . . units or groups are not only armed or financed (or also equipped and trained) by a specific state or benefit from its strong support, but also that such state generally speaking organizes or coordinates or takes a hand in coordinating or planning their terrorist actions (not necessarily each individual terrorist operation).Footnote 54
Clearly, Professor Cassese's proposal offers an ambitious picture of what international law can hope to achieve with the invocation of the ‘overall control’ test; and if international law were truly made and applied in a political vacuum, one could heartily agree that ‘overall control’ would be a resounding advance both for this case and for international law. Yet, and unfortunately, this is not the reality within which the Genocide case resides, and neither do any other complex problems of international politics turned litigation dockets. Politics constitutes and permeates the high stakes of war crimes litigation,Footnote 55 and what Professor Cassese has not acknowledged is how a liberal test like ‘overall control’ would be subject to political manipulation in a post-9/11 world where the rhetorical correctness of ‘justice’ and ‘law’ is frequently abused to advance strategic imperatives.Footnote 56 This is something discussed in the first section regarding the heavy political foreground of Bosnia v. Serbia; the claim filed by the Sarajevo government was probably not a legal end in itself, but rather part of a political struggle which continues to the present day.Footnote 57 And, in this light, ‘overall control’ should be evaluated with a more critical and political eye, stripping it of its professed ‘objectivity’ and acknowledging that it could also serve as a means to produce instrumental legitimacy, capable of manipulating complex political problems into the convenient dishonesty of black-and-white schematics.
This risk is obfuscated by Professor Cassese with his staunch advocacy of the ‘overall control’ test. No doubt, the finer net that he advocates would enable the ICJ to readily find state responsibility vis-à-vis any breach of international law – and this could be beneficial in some cases. However, with such liberalization also comes the certain prospect of extra-legal abuse; political efforts are sure to follow which attempt to use international courts, and their new found discretion, for the generation of hard-and-fast misrepresentation.Footnote 58 And we should be cognizant that war crimes litigation has always involved narrow political calculation, even the venerated Nuremberg and Tokyo tribunals.Footnote 59 Hence the misleading potential of ‘overall control’ becomes even more attractive for warring parties in search of a crude but effective victim/perpetrator dichotomy. Now, some may retort that more confidence should be attributed to international courts and their ability to get at the ‘truth’ and exact ‘objective justice’, notwithstanding a claimant's extra-legal ambitions. Yet the concise reply to such well-intentioned exuberance would point to the danger of international lawyers taking their disciplinary doctrine as reflective of actual social reality. As Koskenniemi reminds us,
Such a vision of autonomous legal rationality is, of course, firmly embedded in international legal education and the professional self-understanding of international lawyers. It establishes the identity of the legal field as something separate from the political (and therefore inherently suspect) fields of diplomacy and statesmanship. The very existence of a separate legal doctrine and curriculum and the presence of the legal adviser's office in foreign ministries transform this quest for an external, impartial standpoint towards international society, a standpoint which allows one to understand and participate in international affairs without having to involve oneself in an argument about political preference.Footnote 60
Therefore a curious assumption emerges which seems to motivate the advocacy behind ‘overall control’: human wars and confrontations can still be perceived as clear-cut struggles between ‘good’ and ‘evil’,Footnote 61 the task of international law being ‘objectively’ to sort out the ‘bad’ and the ‘good’ side.Footnote 62 This stylized presumption is truly surprising in an information age where facts and counter-facts abound on the criminal conduct of combatants in wartime.Footnote 63 In this way it seems that black-and-white narration still casts a shadow over the political perceptions held by many international lawyers. This is bewildering, as one would expect that lawyers, professionals who regularly plumb the murky depths of ‘justice’, would in fact be the last to embrace idealizations of armed conflict. The question which therefore follows is: should such a simplistic presumption about the nature of armed conflict guide international legal policy? Further, should international law embrace legal concepts that lend themselves readily to strategic agendas? Moreover, should international courts become ready fora for the production of partisan legitimacy?
What I have tried to argue in this section regarding the Genocide judgment is that the ICJ's adherence to Nicaragua and ‘effective control’ was in fact a forceful message from the United Nations' highest legal authority that international courts should not be used to advance extra-legal agendas, and the involvement of international law for the determination of state responsibility should only arise in the clearest and most circumscribed of ‘legal’ cases – and that is why the blunt force of Nicaragua was regrettableFootnote 64 but necessary. The Court possessed the political wit to appreciate that a slippery slope could have ensued had it departed from ‘effective control’, regarding both the former Yugoslavia's already complex political problems and the integrity of international law generally, a slide which probably would have transformed international courts from institutions of grounded and measured adjudication to front-line theatres for the production of strategic legitimacy.
In the end, Professor Cassese forcefully protests that the Court did not give adequate justification for its rejection of ‘overall control’;Footnote 65 one has to bear in mind, however, that the choice between ‘effective control’ and ‘overall control’ was fundamentally a question of policy, and when faced with thorny policy choices, courts tend to limit their ink, especially when choosing policy already embodied in prior cases – lest it be construed as ideological obiter dicta. In this way, the ICJ's response to the proposition of ‘overall control’ bears metaphorical resemblance to how one treats an invitation to dance: while the music may be enticing, whether one accepts the proposal depends ultimately upon the desire to dance with the propositioning partner; rejections of such invitations are best polite and brief, lest they reveal rather messy and intimate opinions. With ‘overall control’, the Court faced the prospect that a long line of punters – on fishing expeditions from the world's many trouble spots – would ask the Court symbolically to weigh in on the ‘overall truth’ of their conflicts. The message given now by the ICJ with this judgment is that resort to international courts should arise only within a strict construal of determined law and the most specific of legal cases; and it is in this light, by virtue of the ICJ's sound political acumen, that the Genocide ruling manifests the character of a judicious response made in difficult and politicized circumstances.
3.2. The politics of memory and the language games of ‘genocide’ and ‘justice’
As indicated earlier, state responsibility was only a part of the controversy generated by the judgment; the other concerned the Court's failure to find that Serbia had in fact committed genocide across all of Bosnia. For the most part, these criticisms were not delivered in formal legal language and arrived in a colloquial form of political and cultural commentary. Nonetheless, international lawyers should pay attention to such discursive reactions, as previous war crimes tribunals reveal that the significance of such proceedings are often determined beyond courtroom walls and after their occurrence in time. As another Nuremberg historian Lawrence Douglas aptly points out,
[We] must remember that perpetrator trials play before multiple audiences, each of which will perceive the trial differently and will measure its success by different standards. Perhaps more to the point, these perceptions will also transform over the course of years, as the dynamics of space yield to the imponderables of time.
In part this is a consequence of the fact that it is very difficult to predict what aspect of a trial will live on in collective memory. In the United States, the O.J. Simpson murder trial is remembered in an ungrammatical ditty, ‘If the glove don't fit, you must acquit.’ The Nuremberg trial remains remembered in the American popular imagination through the vehicle of the famous Hollywood movie, Judgment at Nuremberg, which in fact had nothing to do with the trial before the International Military Tribunal . . . These moments of collective memory can all be described as juridically unstable, in that they evade the sober ordering strategies deployed by courts at the time of trial. They remind us that regardless of the power of courts to control difficult proceedings and to submit refractory histories to legal judgment, they are unable to control the way in which the trial itself becomes a cultural artefact and an article of collective memory.Footnote 66
Reactions to the Genocide judgment have in this way proved to be no exception regarding the politics of culture and collective memory noted here by Douglas. With the release of the judgment, the court was criticized for not finding that Serbia had committed genocide in Bosnia.Footnote 67 Moreover, the stern nature of the criticisms levelled at the Court suggested that war crimes justice is about more than jurisprudence; it is also about how a case is ‘remembered’ in collective ‘memory’.Footnote 68 Hence, while the judgment marked an end to a judicial process, from the perspective of cultural politics the struggle over how the case would be recalled had only just begun, as affected interests sought to shape the historical meaning and memory of the judgment.Footnote 69 In this case particularly, those who supported Sarajevo's claim that Serbia did commit genocide across all of Bosnia faced an ‘inconvenient fact’,Footnote 70 in that the ICJ did not concur with their claim pursuant to the 1948 Genocide Convention; this made the politics of collective memory crucial to challenge the significance of the judgment.
Now, having said all this, it is important to add the caveat that criticisms and debate regarding judicial rulings should be always expected and for the most part are welcome. However, in such instances as the Genocide case, political analysts and lawyers alike have to be wary of how such extra-legal discussion in fact attempts to re-litigate judgments via the proverbial back door. An overt case is exemplified by the public statements of former prosecution counsel in the Milošević case, Sir Geoffrey Nice, who, weeks after the ruling, decried the way in which the ICJ judgment had been sabotaged because his former boss, Carla Del Ponte, had years previously struck a deal with Serbian authorities to conceal classified documents regarding Serbia's involvement in Srebrenica.Footnote 71 These kinds of post-judgment allegations are important as they play upon our perceived ‘common sense’, endeavouring to influence our reading of the judgment and its legitimacy.Footnote 72
As noted above, political and popular commentary has been awash with efforts to (re)characterize the judgment, and I shall focus here on two arguments made by international relations scholar Martin Shaw in his post-judgment commentary. I take Professor Shaw not to single him out but rather because his well-written commentary provides useful and concise discussion. The first allegation is that the ICJ failed to call ‘a spade, a spade’, whereby legal ‘red tape’ in the form of a narrow reading of genocide prevented the Court from identifying what was a self-evident fact: wholesale genocide across Bosnia.Footnote 73 As Shaw explains,
While we should welcome the secondary indictments of Serbia in this ruling, we should not ignore the fact that, once again, an international legal institution has failed to deal fully and effectively with a case of genocide. Genocide is widely acknowledged to be the supreme international crime, but for this very reason courts seem reluctant to recognize it, despite overwhelming evidence. It is not too strong to say that in this case, the International Court of Justice has engaged in systematic denial of the Bosnian genocide.Footnote 74
However, Shaw's discursive move to ‘naturalize’ the occurrence of genocide across all of Bosnia – and thus place it beyond debate – relies on a contested assumption concerning the nature of ‘genocide’: that it is an indisputable ‘thing’ which can readily be subsumed into a concept, a ‘label’ that more or less describes a ‘hard’ social phenomenon. The problem with such an assumption is that political and legal terms of discourse, such as genocide, do not ‘match’ the social world in this one-to-one manner.Footnote 75 Rather, their meaning derives not from their alleged ‘natural’ character but from how they are ‘used’ in social practice,Footnote 76 which implies that ‘genocide’ does not refer to a set of ex ante ‘objective’ conditions but rather comes from a social process (e.g. legal adjudication) which takes particular circumstances and ‘names’ them as such, justifying harsh measures for punishment.Footnote 77
The problem with Professor Shaw's use of ‘genocide’ is that he keeps all this linguistic construction and contentiousness under wraps, packaging the complexity of the entire Bosnian conflict into the self-evident concept of genocide. This is a discursive move so subtle and effective that it belittles charges such as ‘war crimes’ or ‘crimes against humanity’ and paves over the complexity of the Bosnian war with which the ICJ had to grapple. This is not to suggest that Shaw is wrong to demand justice for the mass death and suffering inflicted upon Bosnia's Muslims (or Bosniaks), tragedies that require legal and political redress. The problem, however, is how ‘justice’ and our condemnation of the killing of innocents is conflated in a singular term, ‘genocide’, and its broad construal, which frames the charge of ‘genocide’ as ‘the crime of crimes’ as opposed to one of many heinous international crimes. It is a stylized and politicized rendition which directs our inquiry away from the specifics of particular crimes and atrocities, and pushes us instead into a loaded language game where glorification is given to the size of the ‘label’ which can be applied rhetorically.Footnote 78 This may explain why the ICJ was cautions in ‘naming’ the totality of Bosnia's war as a one-sided, mass ‘genocide’, based on the law and evidence before it at that time,Footnote 79 and why the Court utilized the high standard of the dolus specialis as a preventative bulwark,Footnote 80 mindful of the gap between complex evidence and politicized vocabulary.
The second allegation is that the ICJ silently and improperly considered how the judgment would affect politics in present-day Serbia and the former Yugoslavia, causing it to shy away from the ‘truest’ and most ‘just’ verdict. As Professor Shaw elaborates,
[T]here must be a suspicion that the court is paying some attention to the political situation in and around Serbia, where the Radical Party (headed by indicted war criminal Vojislav Seselj) remains a formidable force, and the prospect of conditional independence for Kosovo is making for renewed turbulence. It is true that a tougher verdict would have exacerbated these short-term problems in Serbia, making it more difficult for the European Union to incorporate it peacefully into the fold. But this would hardly be a reason to deny justice – one must hope that this, at least, was not behind the ICJ's timid verdict.Footnote 81
Reference should first be made to criticism of the ICJ via innuendo, as there is a line between challenging the substance of a judgment and planting unsubstantiated allegations at the threshold of the Court. That notwithstanding, Professor Shaw's claim does raise an important question for judicial lawmaking in the international arena: to what extent should international courts consider the effect of their verdicts on the specific ‘community’ to which they apply? This question is not a unique one; domestic legal systems have long grappled with the difficult issue of the extent to which local or community factors should be considered in the adjudication and sentencing of crime.Footnote 82 What this state of affairs implies is significant: the practice of law and ‘justice’ does not come in a one-size-fits-all package, and courts should carefully consider remedies in order to best ‘fit’ a case's context. This makes Shaw's argument somewhat curious, because it is based on an assumption that international courts should not consider the impact of their judgments, lest it denies some form of a priori ‘justice’; and this is an alarming proposition if international courts are to adjudicate cases that emerge from complex and ongoing political problems, such as Bosnia's war legacy.
But Professor Shaw's argument should be considered beyond its application to judicial procedure; the penal doctrine he advocates vis-à-vis Serbia should also be scrutinized, because the assertions made here are contestable. First, rather than being a bane in terms of accountability, the ICJ's ruling offers some prospect for greater social recognition in Serbia regarding crimes committed during the Bosnian war. The judgment gives moderating elites in Serbia an important persuasive card: the Genocide judgment is evidence that international courts can be counted upon to apply the law in a judicious manner, even in difficult political circumstances for the court. Thus the value of the judgment in the Serbian domestic arena cannot be underestimated as the Serbian public until now – despite numerous convictions at the ICTY – has expressed a strong and sceptical opinion regarding the ‘legal’ nature of ‘international justice’.Footnote 83
Second, and in more tangible terms, what the Genocide judgment provides to Serbia's public is a visible demonstration which counters the conservative and right-wing claim that a politicized legal regime is bent upon prosecuting not impugned perpetrators but the entire Serbian ‘nation’.Footnote 84 The Genocide judgment now grants norm entrepreneurs within the country the discursive leverage to separate the question of war crimes accountability from the hegemonic discourse of patriotism,Footnote 85 taking ‘the flag’ away from individual accused and enabling the public to focus first and foremost on the repugnancy of ‘war criminality’ as opposed to the ‘Us v. Them’ of ethnic ‘nationality’.Footnote 86 In other words, the judgment can be used to depoliticize,Footnote 87 and consequently particularize, the discourse on responsibility in Serbia, challenging the ‘anti-patriotic’ frame used by right-wing leaders to prevent the airing and acknowledgement of egregious crimes committed in Serbia's name.Footnote 88
With the passing of the ICJ's zero-sum shadow, we may in fact see a more reflective atmosphere develop in Serbia and the region regarding ‘what happened’ during the wars of Yugoslav secession.Footnote 89 Ironically, the ICJ proceedings may have hindered this social process because they created a strategic incentive not to do so, lest the door be opened to legal manipulation.Footnote 90 Now, with the Genocide case's apparent conclusion, an opportunity emerges for social catharsisFootnote 91 pursued through local activism, confrontation, and contestation within Serbian society, based on the findings achieved by the ICTY.Footnote 92 However, for this to happen, international lawyers will have to set aside their professional interests to acknowledge a difficult message which emerges from the Genocide judgment: adversarial proceedings have their limitsFootnote 93 in readdressing the former Yugoslavia's brutal fratricide, meaning that the prospect for contextual justice requires more than litigation; it requires a delicate political process of recognition where national leaders make difficultFootnote 94 but courageous acknowledgementsFootnote 95 – which makes the politics of collective memory foundational to any endeavour to end the historical cycle of slaughter and retribution.Footnote 96
4. Conclusion: ‘fiat justitia, ruat coelum’?
‘Let justice be done, though the heavens should fall.’Footnote 97 That is the rallying cry meant to justify the ‘objective’ intervention of international law in complex problems of contemporary international politics. However, what this article has attempted to illustrate, with the example of the Genocide case, is that the simplicity and singularity of that statement can be misleading – if not ideological – overlooking the particularities which characterize the substance of such a call to ‘justice’, glossing over profound questions of politics that inform how that imperative should be construed and acted upon in particular circumstances: what justice means (for whom) and what it implies (what should be done).
What political ‘justice’ properly entails in the tragic case of Bosnia is an agonizing question, which escapes easy answer. This is so, on the one hand, due to the sheer complexity and scale of the calamity, and yet, on the other hand, its elusive quality can also be attributed to the fact that political ‘justice’ has no a-priori meaning – it is a social construct that is interpreted and not found.Footnote 98 In this vein, our discussion of the Genocide case has intended to convey this notion of artifice to those who believe that the application of international law is something self-evident and objective, warning how politics can permeate international law, making the latter not a corrective but a conduit for politics, something removed from the ‘universal’ and ‘objective’ quality that international law is alleged to have as an imagined ideal.Footnote 99
To bring out this instrumental aspect, the first part of the article introduced the Genocide case not as a juridical and procedural entity but as a political and cultural object. The political context of the case was treated not as extraneous ‘background’ but rather as the all-important ‘foreground’, revealing how the allegation of genocide had a strategic value and legitimizing effect during the Bosnian war, making the litigation an actual and symbolic part of that conflict. In this politicized light, the judgment and standards sought by the ICJ could be interpreted in a more favourable manner, seeing the Court's rejection of Sarajevo's wholesale genocide claim against Serbia not as weak justiceFootnote 100 – as alleged by some – but rather as a stern effort to preserve the legal integrity of the ICJ and the 1948 Genocide Convention. Hence, by flushing out the case's political foreground, it was possible to appreciate the acumen exhibited by the Court in keeping its ruling – however politically controversial – within narrow legal bounds, recognizing as the Court must have that the case was as much law as it was the extension of politics ‘by other means’.Footnote 101
Yet, in the second part, we also saw that the issuance of the judgment did not bring an end to politics either. In fact, it had the opposite effect, with the judgment becoming a source of contestation for legal and political interests – opening up a new discursive struggle over the meaning and memory of the case. This dynamic took place in two distinct arenas of discourse: formal legal analysis and colloquial commentary. Both areas were equally significant vis-à-vis public perception, as critics sought to shape the meaning and value of the judgment as an article of professional and popular memory. In this way the critics alleged that the Court wrongfully construed ‘the law’ regarding both ‘state responsibility’ and ‘genocide’.
In the end, the totality of the discussion here concerning the Genocide case speaks to the complex relationship between law and politics when an allegation of genocide is pursued at the level of state versus individual responsibility. The most concise way of summarizing the argument made is by emphasizing the message it imparts regarding Bosnia's search for political ‘justice’: not only does it remain far away, it is also undetermined. This is not to imply, in an axiomatic way, that the ICJ ‘failed Bosnia’ by not rendering a wholesale genocide verdict, but, rather, questions why a zero-sum and rigid model of ‘legal justice’ was imposed upon our investigation of the Bosnian war. Indeed, such a contention does come with an important caveat that individual prosecutions have provided redress by denying general impunity.Footnote 102 Yet even this assertion must come with the cognizance that all legal proceedings (individual or state-centred) run simultaneously with ‘national’ politics,Footnote 103 prompting us further to consider, in a critical manner, how the language games of ‘genocide’ and ‘justice’ will affect the prospect and politics of coexistence in Bosnia.
Political ‘justice’ of the kind sought in Bosnia v. Serbia was not aimed at establishing the many ‘truths’ about Bosnia's catastrophe, with all its causes, contradictions, and multiple perpetrators (domestic and foreign); rather, its purpose was seen as being to blame a nation as singularly and absolutely responsible for the war.Footnote 104 However, the challenge of contextual justice in Bosnia and the former Yugoslavia will require that we step outside this politicized box of crime and punishment, and acknowledge how conventional legal thinking may have become part of the problem via its linear and zero-sum framework. In this way, we need to recognize the limits of conventional legal approaches if international law is to make a meaningful breakthrough on the ground across the former Yugoslavia.
Yet an admission of this kind goes against present thinking within the legal discipline and professional practice, requiring a large concession by lawyers with respect to what ‘the law’ can be expected to do in the arena of international politics. Such an admission, I believe, will be hard to attain in the present climate of hubris within international law circles, and this is indeed a curious state of affairs when one considers that only forty years ago Richard Falk proclaimed the desire to liberate ‘the discipline of international law from a sense of its own futility.’Footnote 105 Now, with the rise of Western human rights discourses, international criminal courts, and the staunch belief among many lawyers that international legal processes can be the ‘shiny new hammer’Footnote 106 of world politics, the need arises for a reappraisal of legal grandeur and a sober acknowledgement that conventional ‘legal solutions’ to political problems may be as illusive as their ‘military’ kin. Or, to rephrase and recontextualize the words of Richard Falk, the discipline of international law may now be in need of yet another round of ‘liberation’, but this time from its own sense of objective omnipotence.
