Bosnia v. Serbia
Last Monday the International Court of Justice in The Hague began hearings on the merits of a case brought by Bosnia and Herzegovina against Serbia and Montenegro. Bosnia accuses Serbia of committing genocide during the Yugoslavian civil war. If Bosnia prevails, Serbia will be the first nation to have been found guilty of genocide, and it could be forced to pay billions of dollars in reparations to Bosnia.
International lawyers eagerly anticipate this outcome, as it would, in their view, advance international human rights while bringing justice to the Bosnians, who suffered greatly during the Yugoslav conflict. It is too soon to celebrate, however. The Bosnia-Serbia proceeding may end up illustrating the limits of international law, rather than vindicating its ideals.
The Genocide Convention, which recognizes genocide as an international crime, entered into force in 1951. Since then, trials of individuals for genocide and other international crimes have been undertaken by ad hoc international tribunals, such as the UN-created International Criminal Tribunal for the Former Yugoslavia, which has tried individuals who committed international crimes during the Yugoslav conflict, and the International Criminal Tribunal for Rwanda, which has done the same for the Rwanda genocide. The Bosnia-Serbia dispute comes before the International Court of Justice rather than a tribunal because the dispute is state-to-state: Bosnia seeks to hold Serbia liable, rather than individual Serbs.
The ICJ was created in 1946 to adjudicate this kind of state-to-state dispute. While it is easy to understand why individuals should be punished for committing international crimes, it is not clear why states should be punished. States are not people, and although we anthropomorphize them in common speech by saying that states make decisions or take actions, they are not moral agents. In domestic law, we punish individuals who commit crimes; we don't punish families, clans, villages, ethnic groups, or other groups. If we don't punish these groups, why should we punish states?
One argument for punishing Serbia, the nation state, is that Serbia stands as a proxy for the Serbians who engaged in genocide. Punish Serbia because of the crimes of Serbians. But if many Serbians engaged in genocide, many more did not. Many current residents of Serbia are in fact refugees from other parts of the Balkans, victims of ethnic cleansing themselves. Yet, should Serbia lose its case, the innocent would share the tax burden of paying reparations with the criminals and former leaders who are actually responsible. Meanwhile, many current citizens of Bosnia who would benefit from reparations did not suffer during the civil war. Some, in fact, were perpetrators-including Bosnian Serbs who committed atrocities against Bosnian Muslims.
Another argument for trying states is that if they are punished for genocide, governments will be less likely to commit genocide, knowing that if they do, they will have to pay reparations. But reparations are a weak deterrent at best: Given the extreme conditions under which genocide occurs, it is hard to believe that the people who have power will be deterred by the small possibility that-years or decades later-their state will have to pay reparations. And with any future reparations to be paid out of general tax revenues, the people who make the decisions are not likely to feel much sting.
The peculiarity of punishing a nation state for the acts of individuals is perhaps best underlined by a comparison of the different international attitudes toward Rwanda and Yugoslavia. No one thinks that Rwanda should pay reparations. To what nation would it pay them? Serbia, then, is the victim of the fact that Yugoslavia broke apart. If it had remained whole, even if dominated by Serbians, there would be no victim state to bring proceedings against it.
Serbia has cooperated so far with the ICJ probably because the current Serbian government is seeking membership in the European Union and normalcy in its relations with the outside world. The trials of Slobodan Milosevic and other Serbian war criminals in The Hague have provoked a nationalist backlash, however, one that could intensify if the Serbian state is convicted of genocide as well. This backlash can only interfere with the arduous efforts of Serbian liberalizers to push the country into the modern age.
The unfortunate precedent here is the infamous "war guilt" clause of the treaty of Versailles after World War I. The victors forced Germany to admit guilt for the war and to pay billions of dollars in reparations. Historians agree that the war guilt clause stoked anger among ordinary Germans, weakened liberals, and fueled the rise of the Nazis.
The lesson was learned, and after World War II, the victorious allies punished culpable individuals for the Nazis's crimes rather than convicting the nation as a whole. Germany has paid postwar reparations to Israel and victims of the Holocaust, but these payments have been voluntary. These reparations did not amount to collective punishment of the Germans; they instead reflected a German policy, democratically arrived at, of showing the world that Germany rejected its Nazi past.
A similar process could occur in Serbia, but not if Serbians feel that they are being punished unjustly. A Serbian loss in the ICJ would be a gift to the Serbian nationalists, who will argue that the world makes a scapegoat of Serbia while ignoring the guilt of Croatians and other former Yugoslavs, and turning a blind eye to similar or greater crimes occurring elsewhere in the world.
The International Court of Justice never achieved the hopes of its founders. Because it is staffed by ordinary human beings with their own national loyalties, states are not always willing to trust it to produce impartial judgments based on international law, and absent that trust, they rarely allow major disputes to come before it. Most states have never appeared before the ICJ as parties; other states, including the United States and France, have withdrawn from its jurisdiction in response to its perceived shortcomings.
Even when the court does hear cases, it does so with no power to enforce its judgments-only the Security Council has this power, and it never exercises it. States thus can, and do, ignore the court, as the US did when the court held that its use of force in Nicaragua during the 1980s was illegal. The ICJ has had some success adjudicating border disputes and other small conflicts, but has accomplished little else. It is a slow and inefficient institution, which is why the Bosnia-Serbia proceeding is already 13 years old. A Bosnian legal victory is likely to lead only to a political impasse.
Nations should encourage the Serbs and Bosnians to overcome their differences, and for this purpose the traditional carrots and sticks of international relations-trade, aid, diplomatic pressure-can help. But they should not place their confidence in the ICJ. Indeed, if Bosnia were to drop the case against Serbia, this might contribute more to peace and reconciliation than its legal resolution would.
This first appeared in the Boston Globe.