26 February 2007 The International Court of Justice (ICJ), the main United Nations judicial organ, today overwhelmingly acquitted Serbia of committing genocide in Bosnia and Herzegovina during the Balkan war of the 1990s, but found it guilty of failing to prevent genocide in the massacre of more than 7,000 Bosnian Muslims in the town of Srebrenica.
At the same time the ICJ, also known as the World Court, rejected Bosnia’s request for payment of reparations from Serbia, successor to the Federal Republic of Yugoslavia (FRY) of the 1990s, for the worst massacre in Europe since World War II. The judgment, which is binding and not open to appeal, called on Serbia to transfer Ratko Mladic and others indicted for genocide to the UN International Criminal Tribunal for the former Yugoslavia (ICTY), a separate judicial body with a mandate to try individuals.
“The Court observes that the FRY was in a position of influence over the Bosnian Serbs who devised and implemented the genocide in Srebrenica, owing to the strength of the political, military and financial links between the FRY on the one hand and the Republika Srpska (the Serb component of Bosnia and Herzegovina) and the VRS (Republika Srpska’s army) on the other,” the Court ruled by 12 votes to 3.
“The Court further recalls that although it has not found that the information available to the Belgrade authorities indicated, as a matter of certainty, that genocide was imminent, they could hardly have been unaware of the serious risk of it.
“In the view of the Court, the Yugoslav federal authorities should have made the best efforts within their power to try and prevent the tragic events then taking shape, whose scale might have been surmised. Yet the Respondent has not shown that it took any initiative to prevent what happened, or any action on its part to avert the atrocities which were committed” as required by the Convention on the Prevention and Punishment of the Crime of Genocide.
The court also found, by 14 to 1, that Serbia violated its obligations under the Convention by having failed to transfer Mr. Mladic, indicted for genocide and complicity in genocide in Srebrenica, for trial by the ICTY.
But on the overall charges brought by Bosnia, the Court ruled by 13 to 2 that Serbia had not committed genocide, nor had it conspired, through its organs or persons whose acts engage its responsibility under customary international law, in violation of its obligations under the Convention. It found by 11 votes to 4 that Serbia had not been complicit in genocide.
While there is overwhelming evidence that massive killings throughout Bosnia and Herzegovina were perpetrated during the conflict, the Court said it was not convinced that these were accompanied by “the specific intent on the part of the perpetrators to destroy, in whole or in part, the group of Bosnian Muslims,” although they may amount to war crimes and crimes against humanity.
But with regard to Srebrenica, the Court concluded that the Main Staff of the VRS had “the necessary specific intent to destroy in part the group of Bosnian Muslims (specifically the Bosnian Muslims of Srebrenica) and that accordingly acts of genocide were committed by the VRS.”
It noted that while there is little doubt that the atrocities in Srebrenica were committed, at least in part, with the resources which the perpetrators possessed as a result of the general policy of aid and assistance by the FRY, one of the very specific conditions for Serbia’s legal responsibility was not met since “it has not been conclusively established that, at the crucial time, the FRY supplied aid to the perpetrators of the genocide in full awareness that the aid supplied would be used to commit genocide.”
But the FRY was in a position of influence over the Bosnian Serbs who devised and implemented the genocide in Srebrenica, owing to the strength of the political, military and financial links between the FRY on the one hand and the Republika Srpska and the VRS on the other.
On the issue of reparations the court determined that its findings “constitute appropriate satisfaction, and that the case is not one in which an order for payment of compensation… would be appropriate.”
Since it had not been shown that the genocide would in fact have been averted if the FRY had tried to prevent it, “financial compensation for the failure to prevent the genocide at Srebrenica is not the appropriate form of reparation,” the judgment said.
“The Court considers that the most appropriate form of satisfaction would be a declaration in the operative clause of the Judgment that the Respondent has failed to comply with the obligation to prevent the crime of genocide.”