The rule of law matters - especially with genocide

Last week the International Court of Justice, the United Nations' highest judicial organ, ruled in the case of Bosnia and Herzegovina versus Serbia and Montenegro. The court examined the application of the 1948 genocide convention to ethnic cleansing in Bosnia perpetrated by Bosnian Serbs against Muslims, drilling down into the legal responsibilities of Serbia proper.

The court established that Serbia did not commit genocide, did not conspire to commit genocide, and was not complicit in genocide. It also established that the massacre of some 7,000 adult male Muslim civilians by Bosnian Serb forces at Srebrenica in July 1995 amounted to genocide, but that other cruelties related to ethnic cleansing in Bosnia did not.

Serbia violated its obligation to prevent genocide at Srebrenica, said the court, because Serbia's then leaders took no initiative to avert what must have been clear in Belgrade was a serious risk of mass slaughter.

The court further found that Serbia had violated its obligation to punish genocide, by failing to transfer Bosnian Serb Ratko Mladic from its territory to the International Criminal Tribunal for the former Yugoslavia, for trial on charges of genocide as one of those principally responsible for the Srebrenica massacre. The court also ruled out ordering Serbia to pay reparations to Bosnia, which could have amounted to billions.

This decision drew some clear legal lines in some dark Balkan muck. True to the persistent form of the region's history and culture wars, however, no partisan player felt completely vindicated. Serbian President Boris Tadic said the dismissal of the genocide charge was immensely important, but also thought the finding in relation to Srebrenica was hard on Serbia. Encouragingly, he urged Serbia's parliament to condemn the massacre and urged full co-operation with the ICTY. Less encouragingly, the Republika Srpska's Prime Minister, Milorad Dodik, denied any genocide at Srebrenica and rejected any responsibility on the part of his entity and Serbs in general.

Al-Jazeera reported from Sarajevo that Bosniaks received what they saw as a pro-Serb verdict with anger, resentment and even resignation. Bosnian presidency member Zeljko Komsic did not disguise his disappointment: "Genocide was committed in Bosnia in the '90s and anyone who thinks otherwise shuts his eyes before the truth. I know what I will teach my children."

Most understandably, family members of Srebrenica victims were visibly and vocally distraught at the result. "I am stunned," was the reaction of Hedija Krdzic, who lost her husband, father and grandfather at Srebrenica, "This is terrible - I saw with my own eyes who started this war and who kept up the aggression. It was the Serbs." Belgrade broadcaster B92 reported League of Vojvodina Social Democrats leader Nenad Canak calling on the blood and ashes of Bosnia to fall on the hands of all who reached this verdict.

It didn't help that the ICJ ruling was an unconscionable 14 years in the making, largely because of time the court spent on questions of procedure, rather than merit, raised by Serbia. This left a large opening for unchecked expectations. That balloon was swollen by the too-ready equation by prominent Western politicians, journalists and even human rights activists (who should have known better) of ethnic cleansing with genocide, and of genocide with Serbia.

Fortunately in this, its first-ever ruling on an accusation of genocide - the most horrible of crimes - the court rejected those lazy leaps in favour of the rule of law. It offered painstaking application of relevant legal instruments and principles to the Bosnian facts, while recognising these involved human suffering on an ineffably great scale.

There's the continuing rub. The Bosnia versus Serbia genocide case revives serious questions about the effectiveness of any adversarial or inquisitorial court proceedings, anywhere, in healing the profound psychic wounds inflicted on victims of atrocity. This is not to deny the symbolic and practical value of taking strenuous steps to hold alleged perpetrators of atrocity to the fullest legal account.

We do need to ask exactly who did what, to whom, and why, in Abu Ghraib and Guantanamo Bay and beyond, as much as in Bosnian camps such as Omarska and Keraterm. But what if we don't get the answers we want or witness the punishment we expect? What if that's partly because of our own unrealistic justice fantasies? Do we blame the accused for not shaping up as the right kind of monster? For how long?

That's not just a Balkan problem. It's a human one.