On February 3, the International Court of Justice (ICJ), the main judicial body of the United Nations, dismissed a claim made by Croatia (and a counterclaim by Serbia) of committing genocide during the Balkan wars of the 1990s. The decision is final and binding.
It is difficult to understand the jurisdiction of international courts and tribunals, particularly so when they issue controversial decisions that appear to be based more on political considerations than legal reasoning. The ICJ is such an institution - misunderstood and about to be criticised for failing to condemn Serbia for genocide for the second time.
The armed conflicts of the former Yugoslavia in the early 1990s stretching a territory that now represents seven sovereign states, lasted for more than half a decade and saw several hundred thousand civilian casualties. However, for all the legal processes that have emerged on the national and international level as a result of these conflicts, there has only been one finding of genocide - Srebrenica.
Courts and tribunals are supposedly beyond politics and its influence. The principle of the "Separation of Powers" seeks to ensure this, namely that the executive is wholly distinct from the judiciary with one drafting the law and the other interpreting it.
If we expect this at the local domestic level, then we would certainly expect such a principle to be adhered to in the higher international courts given the issues that are being determined.
The ICJ is a curious institution. It resolves disputes between states that are ostensibly political. It has ruled on some of the most important legal principles over the years.
However, it does not enjoy a full separation of powers, as one would expect from a court of national jurisdiction. One of the important considerations that one must consider is that the permanent members of the UN Security Council may exercise the power of veto over the court's decisions.
We should not fool ourselves to dare to believe that an institution such as the ICJ is devoid of politics. It is clear that those seats of international justice, the ICJ and the ICC, not only have to deal with issues of law, justice and accountability, but also with the wider political ramifications of its decisions.
As we have recently seen from the decision of the ICC prosecutor in relation to Palestine, we can also see with the ICJ decision regarding Croatia and Serbia, the decision the court reaches is not just about the legal issues placed before the court, but the wider context of peace, justice and reconciliation.
Separation of powers
Such is the level at which both courts operate that each decision it makes has a political and often international effect. It is perhaps easier therefore to maintain the separation of powers and ignore the influence of politics in lower domestic courts than it is in those that are distinctly international and where the stakes are significantly higher - in Palestine there is statehood and in Serbia there is EU and NATO membership.A number of commentators have questioned the motivation of Croatia to bring a case before the ICJ arguing that Serbia was guilty of genocide during the conflict. Following the filing of the case by Croatia in 1999, arguing that Serbs, led by President Slobodan Milosevic, targeted ethnic Croats during the conflict, Serbia responded by filing a counter suit.
In 2010, Serbia sought to argue that ethnic Serbs were expelled when Croatia launched its 1995 operation to retake territory captured by Serbs, and during the conflict that followed, it was Croatia that was guilty of genocide.
Instances of atrocities in the conflict are well-documented and there is no need to rehearse the events here, and, there are instances that are perhaps rightly described as genocide given their nature. However, genocide is the most difficult crime to prove, and although it is often referred to as "the crime of crimes" given its nature, the use of the word is often politicised and thus the courts that rule on such issues are forced to take political considerations into account.
Questions have been raised about the reasoning behind the cases filed as it is unclear what each party was seeking to achieve. It was unlikely that if either case had found favour it would have contributed further to the sustained period of stability within the region, nor is it likely that it would have assisted any party in its future development.
Is it therefore arguable that the genocide claim was more of a political issue, that the citizens demanded that their undoubted suffering be acknowledged, and that a country with numerous victims wishes to have its voice heard. This falls on the moral obligation to recognise that what happened was, in fact, genocide.
Sliding scale of severity
One of the difficulties with this approach is that it places international crimes on a sliding scale of severity. One tends to approach this on the basis that the higher the number of victims and the greater suffering that is inflicted undoubtedly should be considered genocide and nothing less will suffice.
This is, of course, legally speaking, quite wrong. In principle, genocide could be established with a single death, whereas crimes against humanity cannot. Genocide, as the ICJ judgement confirms, must involve a clear intent to remove (in whole or in part) a clearly identifiable group. In these instances, the ICJ ruled that on the evidence presented, this had not been established.
The decision therefore while anticipated, clearly did have a political element.
The court's decision recognised that the material act of genocide was proven by both Croatia and Serbia, a decision that is hugely significant in itself and should not be trivialised. However, the court then went on to conclude (by a majority in the case of Croatia and unanimously in the case of Serbia) that the mental element required to prove a claim of genocide, the specific intent, was not established.
Importantly, the court recognised that "a raft of crimes" had been committed and urged the two states to continue their cooperation to settle the fate of missing persons, which continues to represent a significant barrier to long term regional stability.
Given the nature of the conflict, it would have invited a significant reaction if one state had been deemed to have committed genocide and the other had not. Such a decision would have invited further protest and instability. It is arguable, therefore, that political consequences were considered when making the factual decision.
The ICJ must remember that first and foremost it is an institution of justice, and political considerations should not enter the court nor the decision-making process, although sometimes, perhaps discretion is the better part of valour, and the politics of the situation are considered for the greater good.
It is unlikely that justice, in the strict sense, has suffered in this case when all the issues are considered. However, that is not to say that justice may be neglected on another occasion where the politics of a situation are considered at the cost of the facts, and more importantly, at the cost of the victims.
As it has often been said, courts try cases, but sometimes cases can try courts.
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