The ICJ confirmed, however, an earlier ruling by the International Criminal Tribunal for the former Yugoslavia (ICTY), also in The Hague, that events following the fall of Srebrenica to Bosnian Serb forces under the command of General Ratko Mladic did in fact constitute genocide, and it found Serbia in breach of international law for failing to prevent the killings or punish those responsible.
The lawsuit was brought by the Bosnian government in 1993 against rump Yugoslavia and was among the court's most complex and contentious cases in its 60 years of existence.
Difficult To Prove
A genocide verdict would have required proof that the government of then-Yugoslavia (whose legal successor is Serbia) intended to "destroy, in whole or in part, a national, ethnical, racial, or religious group, as such," as outlined in the 1948 Genocide Convention.
It was clear from the very beginning that such intent would be extremely difficult to prove, not least because Serbia has not been forthcoming in granting access to government documents that might shed light on the complex ties it maintained with the Bosnian Serbs.
The ruling therefore reflects the state of knowledge as of today, a little over 11 years after the war ended. It is unlikely to be the last word even though no appeal is possible: history will continue to be amended every time new evidence comes to light.
This concerns above all the court's finding that neither the Bosnian Serb republic nor its army "could be regarded as mere instruments through which [then-Yugoslavia] was acting," and that "the acts of genocide at Srebrenica cannot be attributed to the Respondent as having been committed by its organs or by persons or entities wholly dependent upon it, and thus do not on this basis entail the Respondent's international responsibility."
Genocide Without Perpetrators?
Since it is open to revision, the verdict will not bring closure to the dispute between competing historical interpretations of the war in Bosnia. Serbia and Bosnia-Herzegovina's Republika Srpska will continue to maintain that it was a bloody civil war in which all sides committed atrocities, while Muslims and Croats will continue to see it as a war of aggression waged by Serbia on a newly independent member of the United Nations. But taken in their totality, the facts established by the ICTY and now the ICJ suggest a picture with considerably more shades of gray than either side would like to admit.
The UN's highest court has found that Serbia did not commit genocide in Bosnia, did not conspire to commit it, and was not complicit in it -- but it also found that genocide did indeed take place in Srebrenica. The UN's war crimes tribunal, meanwhile, has convicted, in final instance, two Bosnian Serb officers for their role in the genocide.
If Serbia is not responsible for a genocide that has nonetheless been found to have taken place, who is? Was Srebrenica, as the French daily "Le Figaro" headlined on the day of the verdict, a "genocide without perpetrator?"
Bosnian Serb Relief
This may well be how the Bosnian Serbs would like the world to see Srebrenica. But Bosnian Serb Prime Minister Milorad Dodik, a master strategist, recognized early on the inexorable logic of any judgment that would find genocide had occurred in Bosnia: it would shine a spotlight on the Bosnian Serbs. To preempt such a result, he declared the lawsuit "illegal and illegitimate" regardless of its outcome.
The speaker of the Bosnian Serb National Assembly, Igor Radojicic, told reporters after the ruling, "an important message in today's ruling...is that the Republika Srpska's survival and its further development are no longer under a question mark."
The reactions of Serbian and Bosnian Serb leaders conveyed a great sense of relief that the issue is now, once again, one of individual responsibility for war crimes (to be adjudicated by the ICTY) rather than of state responsibility. Prime Minister Dodik told the Bosnian Serb news agency SRNA that Srebrenica was "a horrific crime" and that "all institutions have to apologize to those who have lost their lives, to the victims and their families."
He was quick to add, however, that he expected "a similar apology to be made to us because many have died and suffered consequences of the war on our side as well." This is the line the Serbian side has been hawking for well over a decade: all sides committed atrocities in this war, and let's now move on.
A similar determination to instrumentalize the ruling was evident in the reactions of some Bosnian Muslim politicians, above all the Muslim representative on the country's three-member presidency, Haris Silajdzic. Just minutes after the ruling, he pointed out on Bosnian state television that Serbia was indeed found guilty of breaching the Genocide Convention by failing to prevent and punish genocide. "We have to change the setup and the constitution [of Bosnia] that were created as a direct result of that genocide," he said in a none-too-subtle allusion to the Republika Srpska, whose abolition he has been demanding for many years.
Seeds Of Reconciliation
The ruling does, perhaps, contain the seeds for reconciliation. It may make it more difficult for the ethnic Serbs of former Yugoslavia to pretend that the world in general and international justice in particular are the eternal enemies of the Serbian people and that all sides are equally guilty, and deserve equal compensation.
It may also make it more difficult for the Bosnian Muslims to pretend that they were the only victims of a war of aggression waged by Belgrade, forcing them to recognize that internal forces were also pulling Bosnia-Herzegovina apart.
But the promise will remain unfulfilled as long as Bosnia's politicians seize on judgments from The Hague as tools in their parochial squabbles rather than viewing them as little signposts that could show the way toward an understanding of history that could be shared by all citizens of this unfortunate country.
(T.K. Vogel is a writer on Balkan affairs and author of a forthcoming study on ethnic cleansing.)
Coffins of Srebrenica victims being prepared for burial in October (AFP)
THE WORST ATROCITY IN EUROPE SINCE WORLD WAR II: The July 1995 massacre of some 7,000 Muslim men and boys by Bosnian Serb fighters near the UN-designated safe haven of Srebrenica is the worst atrocity of its kind in Europe since the end of World War II. Since the incident, the name Srebrenica has become practically synonomous with ethnic cleansing....(more)