1. Prologue

In February 2007 the International Court of Justice (ICJ) rendered its judgment on the merits of the Genocide case,Footnote ¹ thereby writing the final chapter to a story which had been pending before it for some 14 years. This judgment will certainly prove to be one of the ICJ's most significant, both legally and politically. In brief, the Court concluded that genocide was perpetrated in Bosnia and Herzegovina (BiH) by the Bosnian Serb armed forces, but that, solely in the town of Srebrenica in July 1995. Moreover, according to the Court, Serbia was neither responsible for the commission of that genocide nor complicit in it, but was responsible for failing to prevent it and for failing to punish its perpetrators.

The purpose of this article is not to parse the paragraphs of the judgment in meticulous legal analysis, worthy endeavour though that might be.Footnote ² This article will instead try to explore the context and the multifaceted peculiarity of this case, which is at least as great as its importance, and the examination of which is absolutely necessary for a proper understanding of its outcome. Almost every aspect of the Genocide case is odd. At one level, it was never really about genocide, or at least genocide as international lawyers think of the term. Moreover, while the case was pending both parties underwent a series of crucial transformations. Even if, formally speaking, their legal personality remained the same, the parties were anything but the same in 1993, when the application was submitted, in 1996, when the Court decided on its jurisdiction, and in 2007, when the final judgment was rendered. The ICJ was also, probably for the first time in its history, faced with a case in which the principal, underlying dispute was actually within the applicant state itself, between the Bosniaks (Bosnian Muslims) and the Bosnian Serbs, whose army committed the Srebrenica genocide, and who actively tried to obstruct the progress of the Genocide case at every turn. The case is also notorious for a number of unprecedented procedural manoeuvres.

But what makes the Genocide case truly distinctive is that it was, perhaps more than any other ICJ case, from its beginning to its end at the mercy of political considerations outside the courtroom. Particularly after the war in BiH ended, two years after the application was filed with the Court, the Bosnian lawsuit became a device through which both parties attempted to validate their broader, collective narratives as to the character of the Bosnian conflict, especially as to who were its heroes and who were its villains. In that sense neither of the parties before the Court was particularly interested in presenting their best legal case, but rather in telling their story of the Bosnian war. The Genocide case was therefore a true judicial drama, at the same time an exercise in storytelling and in legal argumentation. It was also a play within a play, in which the actors in the courtroom were taking their cues from the larger, political play taking place outside it. And it was the actors in this larger play – the intellectuals and politicians stoking the fires of nationalism as a vehicle for keeping or obtaining power – who first discovered a concept, a word, that they could easily manipulate to their own ends. That word was ‘genocide’.

The first manipulative use of the word in Yugoslav public discourse came in 1986, when a document, called the Memorandum, was leaked to the press from the Serbian Academy of Arts and Sciences (SANU) while still in draft form.Footnote ³ The SANU Memorandum, written by a number of Serbian nationalist intellectuals, was basically a lament on the suffering of Serbs due to the existing constitutional and economic structure of Yugoslavia. Even though it did not explicitly argue for the dissolution of Yugoslavia and the creation of a Greater Serbia, it produced an intensely negative reaction outside Serbia proper, and was widely seen as the point at which the dominant Serbian elites abandoned the preservation of Yugoslavia as if it were the best way of resolving the ‘Serbian national question’. It is, however, important for the purposes of the present article because it also inaugurated the new malignant grand theme of Serbian nationalism – self-victimization – and because, among other numerous exaggerations and outright lies, it contained the prominent claim that the Serbs of Kosovo were victims of genocide by the Albanian majority.Footnote ⁴ The Memorandum was followed by a stream of atrocity propaganda during which the Serbian state media continuously reminded the Serbian public of the crimes perpetrated against Serbs during the Second World War,Footnote ⁵ while the same work was being done with a somewhat higher degree of sophistication by nationalist intellectuals.Footnote ⁶ As the International Criminal Tribunal for the former Yugoslavia (ICTY) established in the Tadić case, self-victimization and propaganda were the fuel for the fires of nationalism,Footnote ⁷ which was on the rise not just in Serbia, but in Croatia and BiH as well. So began the wars for the Yugoslav succession.

2. Exposition: the war in Bosnia and Herzegovina, the application and provisional measures

When the government of the Republic of Bosnia and Herzegovina instituted proceedings before the ICJ against the Federal Republic of Yugoslavia (FRY) on 20 March 1993, the war in BiH was in its second year. By the end of 1991 and the beginning of 1992, both the Bosnian Serbs and the Bosnian Croats had established their own separatist entities, the Republika SrpskaFootnote ⁸ and Herzeg-Bosnia. Since the Bosnian Serbs were armed and organized by the FRY and the remnants of the Yugoslav National Army (JNA), their forces were vastly superior to those of either the BiH government or the Bosnian Croats. Indeed, as 1992 drew to a close, the Bosnian Serbs were in control of some 70 per cent of the territory of BiH. The internationally recognized government, with some exceptions, commanded the allegiance of Bosnian Muslims alone, while its capital, Sarajevo, was besieged by the Serbs. By October 1992 conflict had finally erupted between the Bosniaks and the Croats as well. The initial year of the war was also its bloodiest, due to the ethnic cleansing being perpetrated chiefly by Bosnian Serb forces. Recent research shows that about half of all of the civilian victims of the war, the vast majority of whom were Muslims, lost their lives in the period from May to August 1992.Footnote ⁹

The position of the internationally recognized BiH government in the months preceding the filing of the application with the Court was precarious indeed. In that regard, besides advancing a legal case before the ICJ and provoking international outrage, the Bosnian application had one additional, more immediate, goal. Namely, while the Republika Srpska was provided with heavy arms and personnel by the JNA, the UN Security Council through its Resolution 713 (1991) imposed an arms embargo on the former Yugoslavia which made it impossible for BiH government forces to overcome their military inequality in relation to the Serbs. In its application, therefore, the BiH government asked the Court to adjudge and declare that this resolution of the Security Council should not be construed in a manner that would impair the right of BiH to individual and collective self-defence.Footnote ¹⁰ In essence, BiH requested the Court to engage in judicial review of a Security Council decision made under Chapter VII of the UN Charter. It moreover did so not only in its application, but also in its request to the Court for the indication of provisional measures.

What stood in way of BiH, however, were not ‘just’ the incredibly complex legal and policy implications that any judicial review of Security Council decisions would have, but also some severe jurisdictional defects. From the very beginning BiH could invoke only Article IX of the Genocide Convention as the basis of the ICJ's jurisdiction,Footnote ¹¹ since the FRY made no declaration accepting the ICJ's compulsory jurisdiction pursuant to Article 36(2) of the Statute, and there were no other treaties which could offer a jurisdictional basis. On the other hand, in its submissions to the Court, BiH swept far more broadly, asking the Court to decide on the FRY's responsibility for breaching, inter alia, the Hague and the Geneva Conventions, the UN Charter, the Universal Declaration on Human Rights, and general international law.Footnote ¹² Indeed, of the eighteen submissions made by BiH in its application, only one fell prima facie within the Court's jurisdiction under the Genocide Convention.

What BiH did, therefore, was to equate with genocide all the possible violations of international law in relation to the then ongoing conflict, most notably the violations of the jus ad bellum. It took the same approach in its request for the indication of provisional measures, submitted jointly with its application.Footnote ¹³ Such an approach ultimately proved to be fruitless, both when it came to incidental proceedings and when it came to the merits.

In its first order on provisional measures, the Court indicated only those measures which fell within the scope of the Genocide Convention.Footnote ¹⁴ Regrettably, these measures were not heeded by the parties to the conflict, and the ethnic violence continued unabated. However, the Court refused, on jurisdictional grounds, to involve itself in the delicate issue of the arms embargo. This prompted further requests from BiH for the indication of provisional measures, but this time with a linguistic twist: no longer was the embargo unlawful because BiH had to have the means to defend itself, but because it had to have the means to defend itself from genocide.Footnote ¹⁵ In its second order on provisional measures, the Court again refused to indicate the measures sought, for the same basic reason – lack of jurisdiction – and reaffirmed its previous order.Footnote ¹⁶

From its inception, therefore, the BiH application before the ICJ was predicated on equating the entirety of the FRY's involvement in the BiH conflict with genocide. This was done both at the purely legal level, for the initial motive of circumventing the arms embargo imposed by the Security Council, and – much more importantly for the final outcome of the case on the merits – at the level of public discourse. That the principal object of the BiH Genocide application was somehow to undermine the arms embargo is confirmed by the letter from BiH to the UN General Assembly and the Security Council stating its intent to file proceedings before the ICJ against the United Kingdom, alleging that the United Kingdom and other permanent members of the Security Council had ‘illegally imposed and maintained an arms embargo’ against BiH, and that consequently the United Kingdom was ‘both jointly and severally liable for all the harm that has been inflicted upon the People and State of Bosnia and Herzegovina because [it] is an aidor and abettor to genocide under the Genocide Convention and international criminal law’.Footnote ¹⁷ After probably realizing the legal futility of any such lawsuit, not to mention the political harm to its own interests, BiH desisted from this action and dismissed its erstwhile Co-Agent before the Court.Footnote ¹⁸

At the same time, on the other side of the Drina river, the other party to this case was constructing its own collective account. The FRY, comprising the republics of Serbia and Montenegro, was under the unquestioned political leadership of the then president of Serbia, Slobodan Milošević. The FRY was established by the rump federal parliament of the former Socialist Federal Republic of Yugoslavia (SFRY), consisting only of the deputies from Serbia and Montenegro elected under the one-party system. This rump parliament immediately declared that the FRY was not to be considered as a mere successor of the SFRY, but as a continuator, a state identical with the former SFRY.Footnote ¹⁹ According to the official dogma of the Milošević government, the FRY was the SFRY, albeit with some parts missing, and was still a founding member of the United Nations. It must be noted that this legal position announced by the newly consolidated FRY was not the product of some grand legal theory of state succession. No, it was rather an unfortunate by-product of the party line of the day. Even though no person contributed more to the violent break-up of the SFRY than did Milošević, his official stance was always that he was actually fighting to preserve Yugoslavia. And, one may ask, what better way to preserve Yugoslavia than to pretend that it has never ceased to exist?Footnote ²⁰

The ‘preserving Yugoslavia’ line was furthermore but one aspect of the collective narrative being constructed in the FRY and in Serbian society. The other aspects related specifically to the conflicts in BiH and Croatia – these were seen as tragic civil wars, tragic not only by being bloody, but also in the more classical sense of somehow being unavoidable. These were, moreover, civil wars in which the Serbian people fought defensively, to protect themselves from the horrors of the Second World War being revisited on them by reincarnated Ustaše and Ottoman Turks.Footnote ²¹ And, finally, even though the Serbian people in BiH and Croatia allegedly fought valiantly against their oppressors, Serbia itself was not at war, but was a purportedly peace-loving member of the international community, guilty of nothing but providing its compatriots in BiH with some much needed humanitarian aid.

Back in BiH, as the war entered its third year, the United States grew increasingly weary of the European Union's inability to put an end to the conflict. In early 1994 it managed to pressure Bosniaks and Croats into ending their hostilities and forming an alliance against the Serbs. The first metamorphosis of the applicant thereby occurred in March 1994, when the Bosniaks and Croats signed the Washington Agreement which established the Federation of Bosnia and Herzegovina.Footnote ²²

As foreseen by the Bosniak leadership, circumventing the arms embargo proved to be necessary for overcoming the Serbs’ stranglehold on BiH. This was done secretly by the United States and several other powers, thereby enabling the joint Bosniak and Croat forces to push back Bosnian Serb forces in 1995. Added to this was the offensive of the Croatian army against the separatist Serb republic in Croatia, in operations ‘Flash’ and ‘Storm’. Finally, a Bosnian Serb counter-offensive against the UN-protected area of Srebrenica, which culminated in the murder of some 8,000 Bosniak men and boys in July 1995 and a massacre of civilians in a Sarajevo market-place, led to a series of intense air strikes by NATO against the Bosnian Serbs.Footnote ²³ Strong international pressure, coupled with Serb military losses in the field, finally achieved the end of the war in BiH.

With the mediation of the United States and other powers, the warring parties, the FRY, and Croatia had no choice but to agree to the Dayton–Paris Peace Accords,Footnote ²⁴ which affirmed the joint state of Bosnia and Herzegovina, consisting of two entities, the Bosnian Federation and the Republika Srpska, and created an incredibly complex constitutional structure at whose apex sat the High Representative of the international community. Crucially, the Dayton Accords effected the second metamorphosis of the applicant state in the Genocide case: it now included both the alleged perpetrators of genocide and its victims.

3. Post-conflict conflict: jurisdiction, counterclaims and dirty tricks

This, then, was the final outcome of the war in BiH: one hundred thousand people dead,Footnote ²⁵ a country under international tutelage, and, as we shall see, an applicant before the ICJ suffering from a severe case of multiple personality disorder. The end of the war also saw the hardening of the two established narratives: the Bosniak side saw the conflict almost exclusively in terms of genocide and Serbian aggression, while the Serbs saw it essentially as an unavoidable civil war. Probably too preoccupied with maps even to remember that they were litigating a case before the ICJ, the negotiators at Dayton somehow managed not to dispose of the BiH lawsuit in the accords. The case before the ICJ therefore continued.

The FRY submitted a number of preliminary objections to the ICJ's jurisdiction, but these were all rejected by the Court in its judgment of 11 July 1996,Footnote ²⁶ which found that it did in fact have jurisdiction, but solely under Article IX of the Genocide Convention.Footnote ²⁷ The one objection which was not raised by the FRY, however, was that it had no access to the Court pursuant to Article 35 of its Statute, since it was not a member of the United Nations, nor did it contest that it was a state party to the Genocide Convention.Footnote ²⁸ This objection, which will later prove to be the pivot of the FRY's strategy before the ICJ, was not made simply because it ran counter to one of the principal components of the political narrative of the Milošević regime, that of ‘saving Yugoslavia.’ The Court itself managed to avoid deciding on the difficult issue of the FRY's UN membership, even though it was certainly aware of it, remarking in 1993 that it was ‘not free from legal difficulties’.Footnote ²⁹

Indeed, the objections that the FRY did make were fully in accord with its then-dominant political narrative. It thus claimed, for example, that the conflict in BiH was internal in scope, a civil war, and that the BiH government lacked the legitimacy to file the application with the Court, since it represented only the Muslim part of the Bosnian population.Footnote ³⁰ The ultimate expression of this account of the BiH conflict as a civil war, and at that a defensive war on the part of the Serb people, was the counterclaim which the FRY filed with the Court in its 1997 Counter-Memorial, arguing that it was the Serbs in BiH who were in fact victims of genocide.Footnote ³¹

For the parties, therefore, the Genocide case was a continuation of their wartime politics by other means, each pushing its own story as to what had actually happened during the conflict. When the parties submitted their final written pleadings on the merits at the beginning of 1999, the case was well on its way to being heard by the Court in February 2000,Footnote ³² unless something were to stand in the way. And something did. Namely, in BiH itself, the situation was and remains far from monolithic. The Bosnian Serbs, the alleged perpetrators of genocide (and not just the genocide in Srebrenica, but, according to the Bosniaks, genocide everywhere in BiH), were not just physically present in the applicant state – they formed, and they continue to form, an integral part of its government and institutions.

As a product of a compromise necessary to bring an end to the conflict, the Dayton constitutional framework of BiH creates a government structure which is by design easily prone to paralysis. It allows the representatives of each of the three peoples in the BiH state institutions to declare an act of an institution to be ‘destructive of a vital interest’ of that people, thereby establishing an ethnic-based veto power for most major decisions.Footnote ³³ By way of example, if the BiH application in the Genocide case had been filed after the Dayton Peace Agreement, the representatives of each of the Bosniaks, the Croats, and the Serbs would have had to have given their consent. Since the application was filed before Dayton, while the war was still ongoing, the Bosnian Serbs saw it as illegitimate, since it had been lodged without their approval.

Furthermore, as the years went by, the word ‘genocide’ in BiH political discourse became used more and more often as a way of saying that the Republika Srpska is fundamentally illegitimate, a ‘genocidal creation’ which should be abolished in favour of a unitary state of BiH. Regardless of any merits or demerits of this argument, it is easy to see why the political elites of the Republika Srpska saw the BiH lawsuit before the ICJ as a threat; it was a threat to the joint narrative they had created with Serbia, and it was an even more direct threat to their own political survival. Therefore, as soon as the Republika Srpska leadership realized the potential significance of any genocide judgment by the International Court, they spared no effort in obstructing the progress of the BiH lawsuit. Besides general political hostility and obstruction, this sabotage of the Genocide case from within the applicant state itself took place in three different forms, all of which remain quite unprecedented.

The first was an ambush attempt to discontinue the case, whose magnitude is shown even in the Court's own dry qualités, and which was made possible by the dysfunctional constitutional system of BiH. That is to say, BiH has a collective head of state – the presidency – which is composed of three members, one for each BiH major ethnic group, with the chairmanship of that presidency rotating on a periodic basis. On 9 June 1999, the then chairman of the BiH presidency, Živko Radišić, a Bosnian Serb by ethnicity, appointed a co-agent for the Genocide case without consulting the other two members of the presidency. One day later, that new co-agent informed the Court that BiH wished to discontinue the case, an assertion which the actual Agent subsequently denied. That, of course, did not prevent the then agent of the FRY from declaring that his government accepted the discontinuance of the proceedings.Footnote ³⁴ After a year-long flurry of correspondence during which the Bosnian Serb and FRY officials continuously maintained that the proceedings before the ICJ were terminated, while the Bosniaks claimed that they were not,Footnote ³⁵ the Court found that Bosnia and Herzegovina had not demonstrated its will to withdraw its application in an unequivocal manner, and that therefore there had been no discontinuance of the case.Footnote ³⁶ Besides presumably bewildering the Court and injecting a whiff of the Balkans into the halls of the Peace Palace, this sabotage attempt from within the applicant state clearly shows how the usual applicant–respondent paradigm in an international dispute did not conform to the real fault lines of the dispute at hand in the Genocide case. The Court was moreover forced to postpone the beginning of the oral hearings in the case,Footnote ³⁷ which were then further delayed after the regime change in Belgrade in October 2000.Footnote ³⁸

Second, there was the problem of funding. From its very beginning during the war, the details of how the BiH lawsuit before the ICJ was being funded were far from clear. Indeed, the former BiH ambassador to the United Nations, agent before the ICJ during the 1990s, and later Foreign Minister, Muhamed Sacirbegovic (Sacirbey) has been charged before the cantonal court in Sarajevo for the alleged misuse of government funds, possibly including funds allocated for the Genocide case, and is currently awaiting extradition to BiH from the United States.Footnote ³⁹ When the issue of the lawsuit's funding finally came before the BiH presidency in 2002, the Bosnian Serb and, under somewhat unexplained circumstances, the Croat member of the presidency voted against further funding for the case.Footnote ⁴⁰ This, in effect, meant that the funding for the lawsuit from state funds was cut off. For the next four years, money for the funding of the case came from private sources alone, mainly from the contributions of citizens and the Bosniak diaspora through several different foundations.Footnote ⁴¹ Even though there have been cases in which indigent states received the equivalent of legal aid through the ICJ Trust Fund,Footnote ⁴² this is probably the only example in the Court's history that a state was politically unwilling, not economically unable, to fund its own counsel.

Finally, in late 2005, the then Serb member of the BiH presidency, Borislav Paravac, lodged with the Constitutional Court of BiH a request for the review of the constitutionality of the Bosnian lawsuit before the ICJ, arguing that the filing of the application with the ICJ without the consent of the Bosnian Serb representatives was contrary to the Dayton constitution of BiH. Now it is not entirely uncommon for there to be domestic proceedings in relation to a decision of the ICJ – such as the decisions of the US Supreme Court in Sanchez-Llamas v. Oregon,Footnote ⁴³ which followed the ICJ's LaGrand Footnote ⁴⁴ and Avena Footnote ⁴⁵ judgments, or the Israeli Supreme Court's ruling in the security barrier casesFootnote ⁴⁶ after the ICJ's Wall Advisory Opinion.Footnote ⁴⁷ There is, however, no instance in domestic judicial practice in which the actual legality of the filing of a case before the ICJ has been at stake. The BiH Constitutional Court wisely managed to avoid deciding on this issue by simply waiting for the ICJ to deliver its Genocide judgment, and then ruling that it would not be expedient for it to pronounce on an issue which has already been decided by the International Court, even though, of course, the ICJ said absolutely nothing about this issue of BiH domestic law.Footnote ⁴⁸

Although the Bosnian Serb attempts to obstruct the Genocide case ultimately proved to be futile, they were not inconsequential. Not only did they show that the principal dispute lay not between BiH and Serbia, but within BiH, they also managed to cast doubts in Serbian public discourse about the legitimacy of the lawsuit and, consequently, the legitimacy of the judgment. Needless to say, they also forced the BiH counsel to spend a lot of time and energy dealing with these issues, which could have been used more productively elsewhere.

In late 1998 the Kosovo crisis in Serbia was in full swing, with the Milošević regime using excessive military force to quell the Kosovo Albanian insurrection against Serbian rule. The crisis culminated in the failure of the Rambouillet peace negotiations in March 1999, after which NATO forces launched massive air strikes against Serbia. That conflict – the last of the wars of the Yugoslav succession – produced several new bouts of litigation before the ICJ, all of which managed to become related to the Genocide case. On 29 April 1999 the FRY submitted an application to the ICJ against ten NATO member countries, in the so-called Legality of the Use of Force, or NATO cases,Footnote ⁴⁹ coupled with a request for the indication of provisional measures. Then, in July 1999, capitalizing both on the lowest ebb of the reputation of the Milošević regime and Serbia in the international community and on any possible success of the BiH Genocide case, Croatia filed its own application against the FRY, stating that the latter was responsible for genocide committed during the 1991–5 war in Croatia.Footnote ⁵⁰ Both the NATO cases and the Croatian genocide case will be discussed further below.

4. Peripety: the fall of the Milošević régime in Serbia, Revision and NATO cases

A true reversal of circumstances in the Genocide case came with the fall of the regime of Slobodan Milošević in the FRY and Serbia proper. On 24 September 2000 Milošević was defeated in the FRY presidential elections by the candidate of the Democratic Opposition of Serbia, Vojislav Koštunica. After initially trying to subvert the electoral decision, to which the population reacted by massive demonstrations on 5 October 2000, Milošević was forced to concede defeat and was replaced by Koštunica as the new president of the FRY. The Serbian general election in December 2000 removed most, but not all, of the vestiges of the rule of Milošević and his political alliance in government institutions and power structures.

These democratic changes also led to a partial shift in the collective Serbian narrative regarding the BiH conflict and other post-Yugoslav wars, with some readiness finally emerging for at least a partial acceptance of Serbia's responsibility for some of the evils of the conflicts and the many lives lost. The new government of the FRY abandoned its predecessor's insistence on the FRY as a continuation of the SFRY, and submitted an application for membership of the United Nations as a new state. The FRY was duly admitted on 1 November 2000, while the other problems raised by the succession of the former SFRY were eventually solved in direct negotiations between the FRY and the other successor states.Footnote ⁵¹

This period of political flux gave some much needed flexibility to the new set-up in the FRY Ministry of Foreign Affairs, which decided to change fundamentally its approach to the Genocide case. There was not just a simple change of personnel, even if the difference in competence alone was by several orders of magnitude. What occurred was a total change in litigation strategy, enabled by the partial change in the dominant collective narrative. The new approach of the FRY was to try to avoid an ICJ judgment on the merits of the Genocide case by using two prongs of attack; the first was to initiate novel jurisdictional manoeuvres, which were made possible by the FRY's thoroughly peculiar status in the United Nations, while the second was to make a serious attempt at negotiating some sort of settlement with BiH. The principal policy justification that the Serbian team put forward in favour of its strategy was that the legal position of the parties in dispute before the ICJ did not reflect reality, as the applicant state included both the alleged perpetrators and the victims of genocide, while the respondent state included both those who supported Milošević and those who fought against him. Coupled with what was seen as a Versailles-like approach to reparations by BiH and its conflation of the entire conflict with genocide, the new team and their policy masters felt that an adverse judgment by the ICJ would result in an unfair, collective punishment of Serbia, which would foster only resentment rather than reconciliation in the region.Footnote ⁵²

Whatever the merits of this policy rationale behind the FRY's new strategy, its attempts to negotiate a settlement with BiH were unsuccessful from their very beginning. While the change in the dominant narrative in Serbia after the fall of Milošević made the FRY's position more flexible, as the years went by the BiH narrative only hardened, mostly due to the widespread Bosniak dissatisfaction with the Dayton constitutional arrangements and the continued existence and influence of the Republika Srpska. For the Bosniaks, genocide was simply not negotiable, and the case before the ICJ served the ultimate purpose of validating their own view of the war as genocidal Serbian aggression. Nothing other than an outright and complete acceptance of this version of the truth on the part of Serbia would have sufficed for the Bosniak side. In the words of a Bosniak member of the presidency of BiH, Sulejman Tihić,

Coupled with the extremely high expectations of what the Genocide judgment would bring, and an over-enthusiastic belief among the BiH public that the case was already won, there was simply no Bosniak politician who could have accepted anything less. However, even if this version of reality was not as biased and as misguided as the ‘it was all a civil war’ one, it would still have been politically impossible for Serbia to accept.

When it came to the various jurisdictional challenges which were part and parcel of the FRY's new litigation strategy, the FRY first withdrew the counterclaims against BiH submitted under the Milošević regime,Footnote ⁵⁴ as these would not only hinder any attempt at negotiations but would also run counter to the FRY's main argument that it was neither a member of the United Nations nor a state party to the 1948 Genocide Convention in 1993, when the BiH application was filed. As the FRY was not a continuator but a successor of the SFRY, and was admitted into the United Nations in November 2000, so the argument went, it could not legally and logically have been a member before that date, nor could it have succeeded to the Genocide Convention.Footnote ⁵⁵ Just to be sure, the FRY made this argument in duplicate. It first filed an application for revision of the Court's 1996 judgment on jurisdiction in the Genocide case, pursuant to Article 61 of the ICJ Statute.Footnote ⁵⁶ The application for revision was treated by the Court as a new case, giving the parties the opportunity to appoint judges ad hoc, with one of the present authors (Dimitrijević) serving in that capacity on behalf of Serbia. The FRY then also submitted to the Court an ‘initiative’ to reconsider ex officio its jurisdiction at the merits stage of the Genocide case,Footnote ⁵⁷ an instrument which had never before been used in the Court's practice, and which was intended as a sort of back-up in the event that the Revision case failed.

The crux of the FRY's new jurisdictional challenge in the Genocide case was therefore the FRY's anomalous, sui generis position in the United Nations prior to November 2000. The status of the FRY's membership was indeed a complete and abject mess, and at that a mess which was to a large extent of the United Nations’ own making. During the 1990s, the United Nations’ political organs, the Security Council and the General Assembly, had to make compromises and were sending mixed messages.Footnote ⁵⁸ As Vitucci notes, the approach by the Security Council in particular was more of a part of the entire package of sanctions against the FRY for its misbehaviour, than it was an unequivocal statement on the FRY's continuity with the SFRY, or the lack thereof.Footnote ⁵⁹ The Secretariat, on the other hand, being perpetually starved of money, had no qualms about either asking the FRY to pay its membership dues or issuing legal opinions which did nothing but create more ambiguity, in essence by keeping the SFRY alive as some sort of a legal zombie.Footnote ⁶⁰ The FRY under Milošević, for its part, refused to pay the allotted dues, but not on account of its not being a member, but because it was denied membership rights.

There have not been many instances of the disintegration of a state, but in all such cases the general response regarding the continuity of the international community has depended primarily on the attitude of the other states which emerged on the territory of the state which had ceased to exist. If there was an agreed arrangement, other members of the international community would generally follow suit. In the case of the SFRY there was no agreement: the claim of the FRY to continuity was contested by all the other states which had emerged from the former SFRY: Croatia, the Former Yugoslav Republic of Macedonia, Slovenia, and even Bosnia and Herzegovina, which disputed the FRY's UN membership in all fora but before the ICJ. By admitting the FRY to UN membership on 1 November 2000, the Security Council and the General Assembly finally determined the outcome of the debate on the legal status of the FRY in the United Nations; before that date the FRY was not a UN member, since it could not have been admitted as a member if it already was one.Footnote ⁶¹ The only possible explanation for the FRY's dreadful sui generis status in the United Nations up to that date is a political one; it was the result of a series of compromises between the leading world powers, and of the latter with the regime of Slobodan Milošević. As aptly described by Treves,

As is often the case, it was up to the Court to pick up the pieces once the politicians had had their say. In its judgment in the Revision case,Footnote ⁶³ the ICJ first had to decide whether the FRY's request for revision was admissible, that is, whether the FRY's admission into the United Nations in November 2000 was a new fact within the meaning of Article 61 of the Statute.Footnote ⁶⁴ More specifically, the FRY argued that its admission into the United Nations in 2000 revealed a fact – that the FRY was until then actually not a member – that fact being unknown to the parties and to the Court in 1996, when the judgment on jurisdiction was delivered.Footnote ⁶⁵ The Court ruled against the FRY by ten votes to three and did so, first, on the basis of a restrictive interpretation of the term ‘fact’ and, second, by holding that the FRY's admission into the United Nations in 2000 could not have changed its position retroactively.Footnote ⁶⁶

We believe, with respect, that the Court's reasoning in this regard was and is unpersuasive, and that the best solution warranted by the law was that the request for revision was admissible and that the FRY lacked access to the Court, it not being a UN member in 1993.Footnote ⁶⁷ We do, however, recognize that even though it was not the best legal solution, the solution that the Court itself opted for was still not unreasonable. It was furthermore supported by sound policy considerations: it upheld the authority of the Court in the face of the inconsistent, even if not entirely unjustified, behaviour of the FRY, and it affirmed the stability of its jurisprudence and the strategy of avoidance that the Court adopted in 1993 and in 1996 when it refused to pronounce itself on the issue of the FRY's UN membership.

Coincidentally, one day after the Court delivered its judgment in the Revision case, the Constitutional Charter of Serbia and Montenegro was promulgated, transforming the FRY into a somewhat weaker federation which changed its name to Serbia and Montenegro. Then, in 2004, came the NATO cases, which dealt with the legality of the use of force by several NATO countries against the FRY in 1999. Despite failing to achieve their desired result in the Revision proceedings, the legal team of Serbia and Montenegro saw the preliminary objections phase of the NATO cases as another opportunity for strategic litigation which might have an impact on the Genocide case. That is to say, as there was very little chance of the NATO cases being decided in favour of Serbia and Montenegro on the merits,Footnote ⁶⁸ and since the cases burdened its relations with the West, Serbia and Montenegro decided to make the best of the NATO cases by attempting to induce the Court to declare itself without jurisdiction on the basis of the FRY's lack of UN membership in 1999. In another first, the applicant in a case before the ICJ actually wanted the Court to say that it did not have jurisdiction.

Bearing in mind the Court's reluctance in the Revision case to say just that, the Court's judgment in the NATO cases came as a bolt from the blue. In a seemingly unanimous decision,Footnote ⁶⁹ the Court ruled that Serbia and Montenegro was not a UN member in 1999 and that it therefore had no access to the Court under Article 35(1) of the Statute.Footnote ⁷⁰ The Court also ruled that the applicant had no access under Article 35(2) of the StatuteFootnote ⁷¹ – even though the applicant in fact did not rely on this provision – by interpreting it restrictively and holding that it applies only to those treaties which were already in force by the time the Statute was enacted.Footnote ⁷²

The Court's legal conclusions were, in our view, fundamentally correct, with the possible exception of its interpretation of Article 35(2) of the Statute. That does not mean, however, that the road the majority took was either wise or appropriate, most importantly because it created a rather disquieting split within the Court itself. The judgment was unanimous only deceptively, because of the neutral way in which the dispositif was framed.Footnote ⁷³ Although all the judges felt that the case should not proceed to the merits phase for lack of jurisdiction, it was only the barest majority who thought that the case should be dismissed due to lack of jurisdiction ratione personae, because of the FRY's UN membership status. Indeed, the actual tally of the votes in the case was eight to seven. The minority believed that the Court should have dismissed the case on grounds of lack of jurisdiction ratione temporis and ratione materiae, just as the Court dismissed the FRY's request for the indication of provisional measures in the same case.Footnote ⁷⁴ The Court's approach was furthermore completely at odds with its previous strategy of avoidance in respect of the thorny issue of the FRY's status in the United Nations, which it consistently applied in the Genocide and Revision cases.

Why, then, did the Court reverse its course from Revision? The only possible explanation for the Court's change of heart is that a majority had formed in 2004 within the Court which wanted to use the NATO cases to sink the Genocide case, as was noted in a somewhat more diplomatic form by the dissenting judges.Footnote ⁷⁵ This explanation is further supported by the Court's restrictive pronouncements of Article 35(2) of the Statue, on which the FRY as an applicant did not at all rely in the NATO cases, but which was a possible basis for the FRY's access to the Court as a respondent in the Genocide case. As stated by Judge Higgins in her dissent, the only relevance of this exercise was to another pending caseFootnote ⁷⁶ – the Genocide case.

How is it that the Court was willing to jeopardize the Genocide case in 2004, when it was clearly unwilling to do so in the 2003 Revision case? The only answer to that question is that the Court which sat in 2004 was not the same Court which sat in 2003. Not counting judges ad hoc, the bench in the 2004 NATO cases included three judges who had not sat in the 2003 Revision case, while one judge recused himself.Footnote ⁷⁷ The Court also had a new president. Moreover, even though the respondent NATO states which did not have a judge of their nationality on the bench availed themselves of the opportunity under Article 31(3) of the Statute to appoint judges ad hoc, the Court decided that, taking into account the presence on the bench of judges of British, Dutch, and French nationality, the judges ad hoc chosen by the respondent states should not sit during the preliminary objections phase of the NATO cases.Footnote ⁷⁸ The Court so decided even though Serbia and Montenegro withdrew its initial objection to the presence of these other judges ad hoc on the bench.Footnote ⁷⁹

Bearing in mind that the judgment was actually delivered by eight votes to seven, this meant that the cases were in the end decided by the single, crucial vote of the Serbian judge ad hoc, who was in a position to give Serbia and Montenegro exactly what it wanted from the NATO cases. The sheer oddity of this situation is further compounded by the fact that the judge ad hoc in the 2004 NATO cases, who also continued to sit in the Genocide case, was appointed by the Milošević regime. The counsel for Serbia and Montenegro, on the other hand, were people who had actively fought against the Milošević regime, yet they were by virtue of their position forced to defend, at least in part, the policies of the some.Footnote ⁸⁰

Be that as it may, despite the setback it suffered in the Revision case, the Court's decision in the NATO cases gave Serbia and Montenegro new hope that it might dispense with the Genocide case on jurisdictional grounds. It therefore pursued its initiative to the Court to reconsider its jurisdiction in that case with new vigour, and the Court allowed it to argue jurisdiction anew in the oral hearings, scheduled for 2006.

5. Resolution: the 2007 Genocide judgment

The oral hearings in the Genocide case, which were held from 27 February to 9 May 2006, were of particular importance for two separate reasons. First, because of the great time lapse between the oral hearings and the last written pleadings on the merits, which were filed with the Court in 1998 and 1999. Second, because of the many political developments in the intervening period and, even more importantly, because of the enormous amount of work produced by the ICTY, due to which the written pleadings were quite simply horribly outdated.

The parties’ oral pleadings before the Court were long and complex, and will not be dealt with here in detail.Footnote ⁸¹ The Court delivered its judgment in February 2007, some ten months after the close of the oral hearings. During the intervening period the respondent underwent its final transformation, that from Serbia and Montenegro to Serbia alone.

The first issue that the Court had to address was Serbia's renewed jurisdictional challenge: which road would it follow, the path of avoidance of 1993, 1996, and 2003, or the one much more favourable to Serbia of 2004? The Court held, by ten votes to five, that its 1996 judgment had the force of res judicata, which extended even to those questions which the Court did not address explicitly in 1996, but which it logically must have dealt with by necessary implication, namely the issues of Serbia's status in the United Nations and as a party to the 1948 Genocide Convention.Footnote ⁸² In the words of the Court, ‘That the FRY had the capacity to appear before the Court in accordance with the Statute was an element in the reasoning of the 1996 Judgment which can – and indeed must – be read into the Judgment as a matter of logical construction. That element is not one which can at any time be reopened and re-examined.’Footnote ⁸³

This part of the 2007 judgment, which was supported by its smallest majority, is in our view certainly its weakest. The Court's assessment that issues which were not decided by it, yet which were raised in later litigation, can actually be covered by the res judicata principle as somehow being decided on implicitly has little support in international jurisprudence.Footnote ⁸⁴ Again, as in the 2003 Revision case, the best legal solution was that the Court lacked jurisdiction ratione personae over Serbia. But, again as in 2003, we must concede that the Court's chosen solution, creative though it might be, is not beyond the limits of reasonableness and judicial propriety. It was obviously motivated by considerations of sound administration of justice, and by a desire to avoid a blow to the Court's authority that a dismissal on solely jurisdictional grounds of an exceptionally delicate case after 14 years of litigation would produce, in a potential repeat of the South West Africa fiasco.

Saying that still does not explain, however, the Court's reversal from its position in the 2004 NATO cases, as the same policy rationales applied then as well as now. The explanation of the Court's 2007 decision is again simple; as the Court which sat in 2004 was not the Court which sat in the 2003 Revision case, so the Court in 2007 was not the same as the one in 2004. There were, again, a new president and no fewer than five new judges on the bench. No other explanation would seem to suffice, and the formal consistency of the Court's 2007 judgment with the NATO cases is no more than superficial.

Having thus finally disposed of the seemingly endless games of jurisdiction played by the respondent, the Court pronounced itself on the merits of the Genocide case: genocide was in fact perpetrated in BiH, but ‘only’ in the town of Srebrenica in July 1995.Footnote ⁸⁵ Serbia was not responsible for the commission of that genocide, lacking either complete control or effective control over the forces of the Republika Srpska,Footnote ⁸⁶ but was responsible for failing to prevent and punish the genocide.Footnote ⁸⁷ The Court furthermore decided that the appropriate form of reparation for Serbia's breach of its duty to prevent genocide would not be compensation, but a formal declaration by the Court itself that a violation occurred.Footnote ⁸⁸

Although Serbia got off lightly by any objective assessment, the one reason it did so was not some half-baked political compromise, but the Court's restricted jurisdiction, which was limited to genocide and genocide alone. If the Court had had jurisdiction over the various violations of the jus ad bellum, humanitarian law, and human rights law, the overall picture of the case would have been different. The Court itself has shown that it indeed has the courage to deal with such issues, as recently as in the Congo v. Uganda case.Footnote ⁸⁹ In the Genocide case, however, the Court lost jurisdiction whenever it established that a particular atrocity, no matter how heinous, could not be qualified as genocide, but solely as a war crime or a crime against humanity.Footnote ⁹⁰ The Court was therefore forced by law, by the cardinal principle that it can exercise its jurisdiction only when a state consents to it, to reach a conclusion which appears to be Solomonic or somehow overly lenient towards Serbia.

Our agreement with the Court's end result does not mean that we consider the judgment to be perfect. As one of us argued elsewhere, the judgment has four principal weak points.Footnote ⁹¹ These are the issue of Serbia's possible responsibility for the acts of the Scorpions paramilitary group, the Court's reluctance to request certain redacted documents from Serbia, some aspects of the Court's analysis of complicity in genocide, and, most importantly, the Court's decisions to grant only a declaratory remedy as a form of satisfaction to BiH due to Serbia's breach of its obligation to prevent genocide.Footnote ⁹² These flaws notwithstanding, in its methodology regarding state responsibility and in its basic result the judgment is unimpeachable, and represents a significant contribution to international law.

That, unfortunately, is not at all how the Genocide judgment was perceived either in BiH or in Serbia, or, for that matter, in any of the other countries of the former Yugoslavia. Due to a particularly malignant combination of near-total ignorance of international law in the general public and the media, the disparity between the lay concept of genocide and the legal notion of genocide, and many years of political manipulation through the lens of their respective narratives, the people of BiH and Serbia did not understand the ICJ's judgment for what it was. Paradoxically, that part of the judgment which is the least legally problematic, namely the Court's conclusions that Srebrenica alone is genocideFootnote ⁹³ and that Serbia is not directly responsible for it,Footnote ⁹⁴ is the one which is the most controversial in the general public in BiH, and it became so from the moment that President Higgins finished the reading of the judgment.

Both Bosniaks and Serbs saw the judgment as a judicial absolution of Serbia for its participation in the BiH war. For example, as soon as the Court rose, a prominent Bosniak intellectual tore to shreds a freshly printed copy of the judgment at the gates of the Peace Palace.Footnote ⁹⁵ That sort of disrespect towards the Court has indeed been rare. Yet so much emotion and so much moral and political capital have been invested by Bosniaks in this validation of their views of the war through the Genocide case that anything but a total win for BiH would have been, and is perceived by them as, a travesty of justice.

In BiH, the atmosphere after the judgment was one of total incredulity. ‘I am stunned,’ said Hedija Krdzic, who lost many loved ones in the Srebrenica genocide. ‘I saw with my own eyes who started this war and who kept up the aggression. It was the Serbs.’Footnote ⁹⁶ ‘We know that Serbia was directly involved’, stated Fadila Efendic, also a Srebrenica survivor. ‘We saw Serbian troops shell us and kill our sons and husbands. We saw them commit genocide here.’Footnote ⁹⁷

The mood in BiH is even more poignantly captured in this statement by Zeljko Komsic, the Croat member of the BiH presidency:

The general public in both BiH and Serbia at no point in time realized that the case before the ICJ was legally never about the aggression or the war or any other crime committed in it, but solely about genocide. In Serbia, in the days following the judgment, euphoric headlines flooded the press.Footnote ⁹⁹ An editorial in Politika, the most influential Serbian daily, started with the lines, ‘We are not guilty. We have been found innocent by the highest court of the United Nations.’Footnote ¹⁰⁰ While politicians in Serbia generally expressed relief, those in the Republika Srpska were practically jubilant. In the words of Milan Jelic, the president of the Republika Srpska, ‘This [judgment] sends a message, it defines the character of the war taking place in the former [sic] Bosnia and Herzegovina, as it is clear that it was just an unfortunate conflict which happened in 1992.’Footnote ¹⁰¹ Adds Igor Radojičić, the Speaker of Republika Srpska's parliament, ‘I consider that an important message of today's decision is that the survival and further development of the Republika Srpska can no longer be doubted.’Footnote ¹⁰²

How the judgment was received in BiH is well demonstrated by the results of a recent opinion poll: 68 per cent of the citizens of the Republika Srpska think that the judgment was just, while 83 per cent of the citizens of the Bosniak–Croat Federation believe that it was not.Footnote ¹⁰³ Again, in neither the BiH nor the Serbian public was there ever the realization that the only reason why the judgment turned out the way it did was the Court's limited jurisdiction, or the recognition of just how narrowly defined ‘genocide’ is in international law,Footnote ¹⁰⁴ or the understanding of the fact that, although the Court could not pronounce on Serbia's responsibility for intervention in BiH or for any other crimes but Srebrenica, it does not mean that such responsibility does not exist. As the Court itself exhorted repeatedly in its jurisprudence, most recently for Serbia's benefit in the NATO cases,

Judges of the ICJ often refuse to comment on a judgment by saying that a judgment speaks for itself. That it does, but in a language that most ordinary people do not understand – and by that we, of course, do not mean either English or French. The Genocide judgment's true content, and the Court's legal finesse and the great care it took in limiting its findings to genocide alone, without however diminishing in any way the gravity of other mass crimes committed during the BiH war, were completely lost in the translation. When the Court says that

– no lay person will understand what that means, even if the import of the words such as ‘peremptory norms’ or ‘erga omnes’ is perfectly clear to any international lawyer. The word ‘genocide’, on the other hand, has been inflated so much, that the notion of crimes against humanity, a term originally coined to describe the horrors of the Holocaust,Footnote ¹⁰⁷ has been consequently so devalued that Bosniaks perceive its use by the Court in lieu of genocide as an insult, a denial of their suffering – witness the previously mentioned tearing-up of the Court's judgment on its very doorstep. The Court seems to have been aware of this disparity between the legal and lay notions of genocide, and the legally unwarranted inflation of genocide. President Higgins even held a press conference after the reading of the judgment at which she tried to explain the limits of the Court's jurisdictionFootnote ¹⁰⁸ – to unfortunately very little avail.

This phenomenon of genocide inflation is of course not confined to BiH and to the Genocide judgment alone, as exactly the same thing happened in relation to Darfur.Footnote ¹⁰⁹ In a combination of good intentions and guilt over Rwanda, an enormous number of actors, from the global human rights community to the Bush administration, started labelling the still ongoing crimes in Darfur, which already took some 200,000 lives, as genocide.Footnote ¹¹⁰ Then came the Report of the UN Commission of Inquiry on Darfur, chaired by Professor Cassese, which concluded that there is insufficient evidence that the crimes were committed with genocidal intent.Footnote ¹¹¹ Just as in the Genocide case, the Report's authors took every possible precaution by saying that the qualification of these atrocities as crimes against humanity in no way diminishes their magnitude or impinges on the dignity of the victims.Footnote ¹¹² Yet, the very next day, these were only some of the headlines in the world press: ‘U.N. Finds Crimes, Not Genocide in Darfur’ (New York Times), ‘U.N. Panel Finds No Genocide in Darfur but Urges Tribunals’ (Washington Post), ‘Horrors Short of Genocide’ (Herald Sun), ‘UN Clears Sudan of Genocide in Darfur’ (Herald), ‘UN Confusion as Sudan Conflict Is No Longer “Genocide”’ (Daily Telegraph).Footnote ¹¹³ Even though in the Genocide case it was not only the former Yugoslav media that misunderstood the Court's judgment,Footnote ¹¹⁴ this was where the effects of these distortions were most felt. The Court's more subtle message that crimes other than genocide were indeed committed, and that Serbia might indeed be responsible for some of them, was never heard.

While the final outcome of the judgment was determined, on the one hand, by the Court's limited jurisdiction, it was on the other seriously affected by the BiH litigation strategy, by its assertion that the totality of all the crimes committed during the war amount to genocide. That strategy was legally misguided simply because it was extremely improbable that BiH could furnish the required proof of specific intent, as is shown by the ICTY's inability to establish genocide anywhere in BiH except in Srebrenica, and even there with great difficulty.Footnote ¹¹⁵ The overly ambitious character of the BiH case is shown, inter alia, by the fact that until the end of the case BiH maintained in its submissions that Serbia also committed genocide in its own territory and against its own Bosniak citizens, even though there was simply no evidence of something of that sort even prima facie.Footnote ¹¹⁶ The expansive approach of BiH had several adverse consequences.

First, BiH was unable to overcome the Court's passivity in fact-finding, which is long-standing and structurally exists by default, as it is generally the responsibility of the parties to provide the Court with evidence. The BiH failure to emphasize the importance of pro-active fact-finding manifested itself most of all in its, and consequently the Court's, over-reliance on the ICTY. Indeed, the ICTY proved to be a double-edged sword for BiH. While, on the one hand, its work allowed BiH to prove an enormous number of facts that it would in all likelihood not have managed to do otherwise, on the other hand it had at least two detrimental consequences for the BiH case.

The first, which was mentioned above, was that the ICTY found genocidal intent only in Srebrenica. BiH had four options for dealing with this obstacle. First, and obviously, BiH could have tried narrowing its case and arguing that genocide was limited to Srebrenica and possibly a few other instances in the war.Footnote ¹¹⁷ This option, however, was politically unacceptable, for reasons already given. Second, BiH could have claimed that the ICTY was wrong in assessing the evidence which was presented before it and that in regard to certain crimes, such as the horrible Prijedor prison camps, where the ICTY found insufficient proof of genocidal intent,Footnote ¹¹⁸ such proof did in fact exist. The problem with this approach, of course, is that it would require the ICJ to gainsay the ICTY on the facts, which would have been very unlikely due to considerations of policy and comity between the two courts. Indeed, in the Genocide judgment the ICJ contradicted the ICTY only once, on an issue of general international law, the applicable tests of state responsibility,Footnote ¹¹⁹ while it deferred to the ICTY on issues of international criminal law, in which the latter undoubtedly has great expertise – not to mention that the ICTY's fact-finding mechanisms are by design far superior to those of the ICJ. Third, BiH could have claimed that there was a difference, as a matter of law, in establishing genocide in a proceeding on state responsibility compared with proving genocide in individual criminal proceedings. This BiH did argue, as this was the easiest road for it to take. BiH claimed, for example, that the standard of proof before the ICJ should be lower than before the ICTY, that the burden of proving specific intent should be reversed, and that the pattern of all committed crimes evidenced genocidal intent.Footnote ¹²⁰ The ICJ quite correctly rejected all these arguments, as they were for the most part as unsupported by law as they were inventive.Footnote ¹²¹ The final option that BiH could have pursued was to try to find new evidence of genocidal intent, which had not been produced before the ICTY. That did not happen.

The ICTY's second detrimental effect on the BiH case was by virtue of the fact that, to date, the ICTY has not sufficiently explored the relationship between the FRY/Serbian authorities in Belgrade and the leadership of the Republika Srpska. This is so not only because of the aborted Milošević trial, but also because the proceedings against Jovica Stanišić and Franko Simatović, the chief and deputy chief of the Serbian secret police, and Momčilo Perišić, the FRY army chief of staff, are still at pre-trial stages.Footnote ¹²² The facts that will hopefully be established in these proceedings would have been relevant for establishing attribution of the acts of the Republika Srpska to Serbia in the Genocide case. In that sense, as one of us has argued before, even though the Genocide case was pending before the ICJ for some 14 years, it actually came prematurely for BiH.Footnote ¹²³

The only avenue left open for BiH to win its case was for it and for the Court to engage in fact-finding independent of the ICTY, and that, again, did not happen. Indeed, there is, to our knowledge, not a single important factual finding in the Genocide judgment which was not previously established either by the ICTY or by some other secondary source. The over-reliance on the ICTY by BiH in particular was quite obviously caused by the fact that its counsel before the ICJ had to deal with the entire morass of the four-year BiH war, instead of focusing on just a few specific situations in addition to Srebrenica which might have amounted to genocide. As the BiH counsel had to deal with everything from the siege of Sarajevo to Prijedor to Srebrenica, they did not have the time, energy, or resources to run a true fact-finding case before the ICJ. Regurgitating ICTY judgments simply occurred by default.

In that regard, BiH called only two witnesses before the Court, and at that two experts: General Sir Richard Dannatt, who did offer some valuable expertise to the Court regarding the organization of the Bosnian Serb military, but no new, hard data,Footnote ¹²⁴ and Andras Riedlmayer, whose testimony on the destruction of the cultural heritage of BiH was by no means irrelevant, but was not particularly helpful either.Footnote ¹²⁵ BiH also produced no witnesses, nor had it asked the Court to call any, in relation to the activities of the Scorpions paramilitary group, but relied solely on a few inconclusive documents in attempting to prove the attribution of their acts to Serbia.Footnote ¹²⁶ We do realize that it is not the usual practice in ICJ litigation to summon witnesses or engage in other direct forms of fact-finding, but that is exactly the point – the Genocide case was not an ordinary case.Footnote ¹²⁷

The excessive weight of the BiH case did not extend only to fact-finding. Parties in a case before the ICJ usually strive to make a layered submission, a principal argument with several alternatives. In the Genocide case, however, BiH played a game of all or nothing, and made no allowance in the (more than likely) event that their primary argument, that all of the crimes are genocide and that Serbia is responsible for all of them, should fail. Serbia's responsibility for failing to prevent genocide in particular was, in the words of BiH's own counsel, ‘eclipsed’ by their primary argument,Footnote ¹²⁸ nothing more than an afterthought. Indeed, although we stated that we consider the Court's unsatisfactory approach to reparations for the breach of the duty to prevent genocide to be the single greatest flaw of the Genocide judgment, it was the BiH counsel themselves who explicitly averred before the Court that a declaratory judgment would be an appropriate remedy for this violation.Footnote ¹²⁹ Even assuming that the Court was not barred by the ne ultra petita rule from awarding a different remedy than that asked by BiH, and that it indeed could have decided on a different form, of just satisfaction, it must be admitted that the Court lacked any incentive from the parties to do so.Footnote ¹³⁰ If the BiH counsel had not been bound by politicians to pursue a maximalistic case, but had instead presented a much more focused argument, the Genocide case might have produced a markedly different result.

6. Epilogue

With all the things that stood in the Court's way, it is remarkable that the Genocide judgment turned out as well as it did, even if it is far from perfect. This, of course, is a tribute to the Court's integrity and expertise. But what a strange case it truly was – pursued by a changing applicant against a changing respondent before a changing Court. It is certainly true that every case before an international court has a broader context, that many a proceeding is but a facet of a larger dispute, and that politics will always play a part. The Genocide case, however, is special. There is no other ICJ case which meant so much to so many people, no other ICJ case in which internal politics so manifestly prevented an applicant from arguing its best legal position, and no other ICJ judgment which has been so badly misinterpreted, again due to politics.

Although the play is now over and the reviews are coming in, its epilogue is yet to be written. In BiH, speculation continues about a possible request for revision of the judgment.Footnote ¹³¹ Though it is clear to any objective international lawyer that such a request would have a hard time in succeeding, especially if the ICTY produces no new evidence, that does not mean that a request for revision would be politically unlikely. The Genocide judgment has now become just one more pawn in the great political play about the post-Dayton constitutional arrangements in BiH.

And so, even though the Bosniak side in the case did not get what it wanted from the ICJ's judgment, it is already trying to get the best from it – best, of course, when viewed from its own perspective. The Bosniak and Croat members of the BiH presidency have made many public statements in which they claim that the Genocide judgment has as its basic implication the ‘annulment of all results of genocide’, by which they of course mean the abolishment of the Republika Srpska.Footnote ¹³² To that effect they even sent a joint letter to the UN Secretary-General, asking him to use his authority to ensure ‘that all efforts are made to eliminate the results of genocide in Bosnia-Herzegovina’.Footnote ¹³³

Another chapter of the epilogue of the BiH Genocide case will be the fate of the Croatian one. Its prospects after the Court's judgment are obviously rather dismal – it is likely to falter on two separate hurdles. The first is jurisdiction, as Serbia's argument, based as it is on its bizarre UN status, would in all likelihood succeed in the Croatian case, since, unlike in the BiH one, the Court has never pronounced itself on its jurisdiction in the Croatian case, and the only legal reason for Serbia's failure in the BiH case was the Court's reliance on the principle of res judicata. Second, proving genocide would be absolutely impossible for the Croatian party, as the ICTY has not come close to qualifying as genocide even the worst crimes of the Croatian conflict. The Croatian lawsuit, simply put, has no chance of succeeding.

Yet, just like the BiH one, it is a slave of politics, and it serves the purpose of validating the Croatians' own nationalistic collective narrative about Serbian aggression and the glory of Croatia's ‘Patriotic War’. And, again, as with the BiH case, the Croatian lawsuit is overly ambitious. It claims, for example, that Serbia is responsible not only for the purported genocide against Croats by the Croatian Serbs, but also for genocide against the Croatian Serbs in 1995, as it forced these people to flee to Serbia, when they would have in fact been perfectly safe in their Croatian homeland. Although Croatia has subsequently desisted from this claim, this still shows very well how a nationalistic construct of reality works – these Croatian Serbs simply could not be the victims of ethnic cleansing by the Croatian army, which was victoriously bringing its just war to an end. Even though the Croatian elites are perfectly aware that their case before the ICJ is doomed to failure, a recent poll showed that 91 per cent of Croatian citizens were against the withdrawal of the application.Footnote ¹³⁴ With such public opinion, there is no politician in Croatia who could do the rational thing and discontinue the case, but things might change after the general election in Croatia, scheduled for November 2007, is over.

As explained above, the conditio sine qua non for the political manipulation of the concept of genocide, and consequently of the Genocide case, is the fact that the ordinary, lay notion of genocide is significantly wider than the legal notion of genocide. Indeed, the legal definition of genocide is much narrower than that originally given by Raphael Lemkin,Footnote ¹³⁵ and genocide would certainly not be described by any regular person in the terms in which it is defined by Article II of the Genocide Convention. This is, again, a global phenomenon, but it is especially prevalent and damaging in its consequences in the former Yugoslavia. There are, furthermore, but two ways out of this situation, neither of which seems very likely to succeed.

The first would be to bring the legal definition of genocide into conformity with the lay one. David Luban, for instance, proposes that the legal notion of genocide be extended to include the crime against humanity of extermination, for which one would not need to prove genocidal intent.Footnote ¹³⁶ The elegance of that solution notwithstanding, it just seems unrealistic that a proposal to revise the Genocide Convention would gather any momentum among states, and it is only the states who can change that treaty.

The other possible solution would be to stop talking about ‘genocide’ as the greatest of all crimes, one which is somehow morally unique. Genocide is not ‘the crime of crimes’, and what labelling it as such does is to trivialize crimes against humanity in public discourse, as is evident in the case of Darfur. The only other palpable effect of this glorification of the concept of genocide is to make it susceptible to political manipulation. On the one hand, the stigma of the word ‘genocide’ serves to simplify a politically and morally complex situation and paint a picture in black and white, for good motives or for bad.Footnote ¹³⁷ On the other, all victims of the many atrocities in the former Yugoslavia now want to be called victims of genocide, as that makes their suffering special, comparable in quality, if not in quantity, to the Holocaust.Footnote ¹³⁸ This is something that, in our view, must be avoided at all costs, or we will, at the very least, see a repeat elsewhere of the aftermath of the Genocide case in the BiH and the Serbian public. What, for instance, will the new hybrid court for Cambodia do? Will it say that the million and more people who died there were victims of genocide,Footnote ¹³⁹ as that is the only word which can capture the horror of the killing fields in the minds of the public, or will it apply the law faithfully, and rule these murders to be ‘only’ crimes against humanity? Time will tell, but one thing is certain – Lemkin's word is just too good a word for any politician to pass up.