ICJ dismissed Croatia and Serbia genocide claims: A chance to forget the past?

6 February, 2015

Written by:
  • Tibor Varady
ICJ dismissed Croatia and Serbia genocide claims: A chance to forget the past?

On February 3, 2015, the International Court of Justice (ICJ) decided to reject both the claim of Croatia and the counter-claim of Serbia. The outcome of this dispute is a logical outcome. The jurisdiction of the ICJ was limited to genocide, and this fearsome threshold was not passed. It is important to note that, as far as the conflicts in Croatia are concerned, the ICTY did not indict (let alone convict) any individual on the charge of genocide. Since the ICJ has based most of its fact-finding (just like in the Bosnian case) on the fact-finding of the ICTY, the outcome was predictable.  Also, it would have been somewhat odd had Serbia and/or Croatia become the first (and only) states in the world convicted for genocide.

© Predrag Koraksic Corax, published in Danas March 1, 2013

It should also be noted that the judgment did not satisfy all expectations. One of the lingering expectations was to get an answer to the question of which nation is the genocidal nation, and which one is the good (the victim) nation. This – obviously irrational - expectation is actually a remnant of the frenzy that permeated the Balkan conflicts in the early nineties. The driving force of the brutal conflict was nationalism. The juxtaposed opponents were ethnic groups. The framework offered by the ICJ is not a framework for ethnic confrontation. The parties to the dispute are states – and states are often multiethnic in nature. Some expectations disregarded this simple fact.

Apart from irrational and feverish expectations, the question of whether disputes before the ICJ represented the right track in facing the past has also been raised. This question became particularly germane in the Bosnian case. Here, the ICTY established that the Army of the Bosnian Serb Republic (Republika Srpska) actually committed genocide in Srebrenica (but this genocide was not ascribed to Serbia and Montenegro). The Republika Srpska is an entity within the state of Bosnia-Herzegovina. Therefore, before the ICJ, the Bosnian Serbs were on the side of the plaintiff/applicant, that is, on the side of the victim. Hence, the dividing lines in the legal dispute did not reflect the dividing lines of the conflict. Furthermore, states that appeared before the ICJ were new states shaped during the conflict, and this fact made the issue of jurisdiction most complex. Therefore, decisions on jurisdiction in both cases (just as in the NATO case) have remained controversial. The judgment of February 3, 2015 also dealt with one jurisdictional issue. Unlike decisions on the merits rendered unanimously (or almost unanimously), the decision on the remaining jurisdictional issue reflected a deeper divide. The vote was 11:6, and the President of the Court joined the minority. Hence, it remained an open question whether a dispute between new states shaped during the conflict was the right track, and whether it was necessary to pursue this track in addition to that of individual responsibility.

I would also like to mention another expectation that was not fully satisfied, namely the expectation to get a full picture of what happened during the conflict. This expectation is more rational – unlike the one aiming to carve in stone which nation is the hero and which nation is the villain. The jurisdictional restrictions did not allow a full picture to be shaped. Nevertheless, many events were described and qualified, and may represent a point of reference in turning away from legends and exaltations and moving towards facts. Historians and court proceedings directed towards individuals may add more clarity.

About a quarter of a century has passed since the conflict in Croatia. One should hope that a chapter was closed with the judgment of February 3, 2015. New generations will hopefully have a better chance to see individual human beings in their neighbors, rather than formulae.

Written by:
  • Tibor Varady Tibor Varady is a Professor of Law at Central European University’s Legal Studies Program in Budapest, Hungary, and was the Minister of Justice of Yugoslavia from July 1992 through March 1993. He has served as the Pro-Rector (1994-1997) and the Head of the Legal Studies Department (1993-1997) of Central European University. Dr. Varady is a member of the World Law Institute Faculty, a member of the Editorial Board of “ELSA” – Selected Papers on European Law, Correspondent of the Netherlands International Law Review, and Councilor of the Association of Alumni of the Hague Academy of International Law. Dr. Varady maintains membership in several arbitral institutions and has acted as an expert witness before United States courts. He is the author of 15 books and more than one hundred articles.
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