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March 09, 2006

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» Opting Out of Citzenship from Opinio Juris
"Corporations, unlike states, are voluntary contractual associations.... There is thus no injustice in imposing liability on the corporation and therefore on its shareholders. If you prefer not to take this risk, you can buy treasu... [Read More]

» We Read the ICJ's Genocide Judgment So You Don't Have TO from Opinio Juris
OK, I admit I haven't read all 351 pages of the ICJ's judgment in the Bosnia Genocide case. This is a rich and potentially important decision. But here are some initial observations and reactions, along with (after the jump), some key excerpts from the... [Read More]

» Serbia and The ICJ from A Second Hand Conjecture
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Bob

If Serbia refused to pay the fine, how would we garnish their tax revenues?

Or maybe they would pay with their own devalued currency, like Germany did? Then what would we do, jail them all?

You made one good point, we should be holding the individuals responsible. The state is a fiction.

Rob

While I understand the overall argument I'm a bit confused about the "state is a fiction" line of argument.

It seems to be that a corporation is also a fiction and we can imagine penalizing a corporation, particularly in tax law.

I submit an entity can take actions outside of the actions of any individual member. Individuals acting in paralell produce outcomes that none of the individuals themselves are responsible for. For example, it takes 10 people to play an NBA game. The teams are playing the game without one member playing an NBA game individually.

I suppose this is more of a theoretical point, but I think it's important not to discount the possibility of entity liability.

Bob

Usually, tax law affects the officers of the coproration, not all the employees.

anon

We also regularly hold municipal corporations and cities liable (sometimes subject to immunities). Of course it's a fiction, but why is it any different in the international context? Or is the argument that we shouldn't do it in the domestic context either?

Bill Gibson

I think that Prof. Posner dismisses the deterrence argument a little bit too quickly by saying that "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." It seems to me (though I have no empirical evidence) that the type of leader who whould encourage genocide is likely to plan on holding on to power for as long as possible and therefore adopt a long term perspective.

Eric A Posner

Corporations, unlike states, are voluntary contractual associations. When you buy a share of a corporation, the purchase price reflects the risk that the corporation has already committed acts that will make it liable in the future as well as the risk that the corporation will engage in such acts in the future. There is thus no injustice in imposing liability on the corporation and therefore on its shareholders. If you prefer not to take this risk, you can buy treasury bonds. Citizens rarely have any choice about what state to live in. People living in Bosnia will benefit from reparations regardless of whether they were victims or perpetrators; people living in Serbia will be harmed by reparations regardless of whether they were victims or perpetrators. Corporate liability should discourage managers from causing the corporation to engage in criminal acts because their compensation depends, at least in part, on the performance of the corporation and certainly their future employability does. I remain skeptical that leaders of states have similar incentives.

JackD

So, the Federal Tort Claims Act is based on a false premise? As someone else pointed out, municipalities routinely are required to pay damages for the wrongful acts of their agents and employees. Is it really so strange to seek to find liability on an organization that, through its official actions, violates human rights secured by treaties? As to those innocent individuals who happen to be citizens, both I and Judge Posner have frequently had our taxes used to pay for tortious behavior of our city and state.

Roach

There would be a few major problems with this.

For starters, atrocities were committed by Bosnian Serbs living in Bosnia not Serbia proper. Serbia to a much greater extent than, say, Germany, respected the arms embargo on the former Bosnian state during the war. When the Croatians were crashing through the Krajina in brand-new German Leopard-One Tanks, the Bosnian Serbs were still using outdated, 1970s-era former Yugoslav Army equipment. There should not be some "collective responsibility" theory put on all serbs when the Bosnian Serb Republic and Serbia proper were separate entities.

Second, how would the offsetting crimes of the Bosnians themselves be accounted for in any judgment. Will the Croats ever be punished for the most efficient and large-scale ethnic cleansing of the war during their 1995 Krajina offesnsive? Will Bosnians be punished for their massacres and abuse of the law of war (such as their infamous us of snipers in Sarojevian hospitals which occasioned Serb counter-fire, always then blamed on the Serbs as unprovoked assaults on protected locations)? There's no easy way to punish one side and impose a judgment without counterbalancing the record with mitigating evidence and evidence of reparations due to it. The perfectly balanced and just solution is probably impossible, which is why it's been the policy of wise statesmen from Wilson and Lincoln to Roosevelt and others to instead try to rehabilitate and reform enemy regimes postwar rather than to punish them continuously.

It's doubtful any kind of well calibrated solution will emerge. War crimes justice is almost always victor's justice. No one in the US will be punished for our crimes in Kosovo (including the made up casus belli) and the enabling of anti-Serb ethnic cleansing in post-war Kosovo. The sainted Bosnians and Croats too won't be punished for their ethnic cleansing of Serbs either.

A modestly-sized conflict with atrocities and undiscipline on all sides is now recharacterized--as it long has been by the international media--as a story of Serb aggression. The fact that such a story is a myth with much evidence to the contrary should inform our sense of what the right legal solution here is.

Norm

"When the Croatians were crashing through the Krajina in brand-new German Leopard-One Tanks, the Bosnian Serbs were still using outdated, 1970s-era former Yugoslav Army equipment."

Exactly. I spent a year with KFOR but spent a lot of time studying the roots and proscess of the Bosnian conflict.

The idea that Croatia would not suffer the same strikes me as one sided.

Bob

Is there such a thing as war crimes? The USA dropped two nukes in Japan killing thousands, if not millions, of civilians. Is that a war crime? Who would we hold responsible? Nobody, as we were the victor. War crimes are only committed by the losers. Might (Victory) makes right. Always has, always will.

Kimball Corson

Eric writes, in part:

“The Bosnia-Serbia proceeding may end up illustrating the limits of international law, rather than vindicating its ideals.”

Bob rejoins with:

“War crimes are only committed by the losers. Might (Victory) makes right. Always has, always will.”

Aside from hoping against the “always will” part of Bob’s otherwise good observation and concurring, too, with Eric here, I think the real significance, however, of the Bosnia-Serbia proceeding is the milestone it creates as we struggle up the ladder of civilization, almost regardless of outcome. We tried and it reflects we really know better. History will view the case well, I think.

Bob

Kimball,

I agree with you that the outcome of the Bosnia-Serbia proceeding is irrelevant, as I also believe the outcome of the Nuremberg Trials were irrelevant.

The Nuremberg Trials were not so much about justice as they were about revenge. I believe that the Nuremberg Trials were allowed to occur so that Jews could exact revenge on their oppressors. German Jews were Germans. Germany was their country. Jews were done an injustice, but within Germany, they had little recourse. Since the German government lost the war, those in power were held responsible for their actions...but only because they lost.

Look at the many countries where governments and leaders are not held accountable: Stalin's Great Purge, Lenin's Purge, Mao's Purge, Pol Pot's purge, etc. These leaders and governments killed millions also, but they were not at war, therefore, it was considered an internal (to their country) affair. There was no international court for these despots.

As long as the offending country is strong, it does not have to submit to the international court. Who will force them? Nazis would have never submitted if they would have ceased military operations before the final Allied attack. They could have called a truce and the Allies would have accepted. We would have never found out about the Jewish Purge, and even if we had, it would have been after the truce and we would have considered it an internal affair. Of course, I realize this is all supposition. But the fact remains, Germans were only held accountable to the international court because they miscalculated; they lost.

Do you think that history looks favorably upon the Nuremberg Trials? Well, for all those non-thinkers out there who lap up all the dribble all the historians spew, the answer is yes. The Nuremberg Trials were righteous. But those who aren't too lazy to use their mind see that the Nuremberg Trials were a farce, invented to appease the Jews. Being a Jew, myself, I feel revenged on one hand, but ashamed on the other. Oh well, that's what being a Jew is all about. Kinda like the Catholic's guilt complex, no?

Kimball Corson

I have always thought Jews invented guilt and Catholics just adopted it. Both have the same God who requires it.

Trials are always all about trying to extract justice and justice very often includes elements of revenge. But while the Nuremberg Trials might have been viewed as revenge for Jews, such as yourself, they also stood for something for the rest of us as well, and were not just a farce. More Due Process was accorded those tried than they ever gave the Jews under their thumbs. Inhumane barbarity requires a formal check wherever we can try to administer one, however imperfect the means and almost regardless of outcome. A principle is involved.

Kimball Corson

P.S.

Most who are barbaric eventually miscalculate, because most eventually loose. Every victory has the seeds in it of future defeat. No one gets to be king of the mountain forever and in this fast paced world that is ever more true.

Bob

Point 1: Name one country that has never been barbaric.

Point 2: The Nuremberg Trials were created so that a minority could exact revenge on oppressors after they had been beaten. If this is such a good thing, why haven't we allowed black America to put the U.S.A on trial for slavery? Or the American Indians for genocide? Could it be because whites are still in power? Perhaps. Then why not take it to an international court? Could it be because the U.S.A is so powerful (it hasn't been beaten yet) that it can choose not to submit? Very Probable.

As long as the USA remains powerful, they will not have to answer for their atrocities. That is why the Nuremberg Trials are a farce. Anybody can "try, convict, and execute" a loser. And what the Nuremberg Trials missed, the Mossad finished.

Kimball Corson

Point 1: Maybe Switzerland?

Point 2: We agree, except on your first and next to last sentences. I think motives were more complex and mixed. Tyrants should be held to account, if and when we get the chance.

Bob

"Point 1: Maybe Switzerland?"

Excellent choice. Even you realize that the USA has lost respect and credibility. America preaches fairness and shows off her Constitution for others to follow, but she doesn't walk her own talk. Actually, I may be more Swiss than American. All I need is a Swiss passport.

"Point 2: We agree, except on your first and next to last sentences. I think motives were more complex and mixed. Tyrants should be held to account, if and when we get the chance."

Your "when we get a chance" supports the point I made earlier. We only get the chance to hold tyrants to account if they have already lost their power. The others always go free. Therefore, the leaders are not all equal before the law. Most all, if not all, leaders got their power through illegal means. As long as they don't lose that power, they will never be prosecuted.

Neil Craig

In fact far from being the perpetrators of genocide the Serbs have been the victims. That & only that can explian that, as pointed out in the article, approx 2 million Serbs from ethnicly celansed territories in Croatia, Bosnia & Kosovo are refugees in Serb territory.

The decision of the International Court not rule on the NATO attack on Yugoslavia which, quite deliberately, assisted in the genocide of our KLA employees is wholly corrupt one. The legal excuse for this was that Yugoslavia was not, at the time, a member of the UN, having been expelled by NATO member votes. Since the UN organisation did not exist during WW2 this means that the "court" have, probably accidentally, made the Nuremberg trial itself illegal.

The real perpetators of genocide are the NATO countries & their NAZI (Croatia & Bosnia) & al Quaeda (Bosnia & Kosovo) employees. The very fact that the International "court" can at the same time say they have no authority to examine the case of aggressive war against Yugoslavia but continue to "examine" the ridiculous farago of unsupported propaganda put forward by Bosnian fundamentalist moslem Nazis show how absolutely & totally corrupt these savages are.

bosnian

Completely wrong justification. Why are you counting on Serbs to become civilised like Germans?
What about the rights of victim in this case???

tom swift

"Point 1: Maybe Switzerland?"

I see someone is a bit weak on early modern history. The Swiss were particularly noted for massacring their prisoners. A big no-no by modern standards, though not particularly out-of-line for that era.

Adnan

"if Bosnia were to drop the case against Serbia, this might contribute more to peace and reconciliation than its legal resolution would."

No because unjustice was always a reason for hate and fututre conflicts.

Let me get some facts right:

Milosevic (president of Serbia at that time) negotiated on and signed the peace accord but Serbia didnt participate in the war at all?

Serbia sent their soldiers, weapons, funds and instructions but that doesnt make them responsible?

A crime was commited but nobody is responsible?

All those hundreds of thousands Serb extremist that hold meetings every year and say how proud they are about what they did and that they will "finish the job" didnt do anything after all?

The international community has taken all hope from a nation. All these people dead, displaced, all those tourtured and raped, all those still mistreated to this day, those who lost everything now have been denied the only thing they hoped for- justice. And as if that wasnt enough Solana says things like:

I think we turned a page in history and now can go on. - No, maybe those who did all this now can go on because they have been cleared, but Bosnia will forever be stuck on the past without a future. Decisions and injustices like this are reason for century long hate.

Or them trying to make it look as if imposing "colective guilt" has been avoided.
If so then what is puting embargos on countrys than "colective guilt"?, the Nunberg trials? Not Serbians as a people were on trial but its leadership.

And after all Mladic was right when he said: "Dont fear, for the winners write history" to his men (note that even he when he saw the plans of Serbian leaders for Bosnia said: "This what you plan is Genocide. How are you going to explain this to the world?" Turns out THE WORLD DOSENT CARE.

And what left in the end is a shatered country stagnating in every sense: culturaly, economicaly and moraly. With people who were attacked in the most vicious way by their neighbours and "friends", let down by the world, and in the end they get told that all this will enter history as a civil war. That they cant trust their own eyes.

We cant build a nation on a fundament hate, injustice and lies. This can only lead to the deepening of what you could call abyss of hate. For example to this point i was against extremism. AlQuaeda (of wich 50% of the bosnian population is a member according to our fellow neighbours) was as much a disgrace to the modern world as America. But now i understand them- they oppress with unjust methods and ambigous moral against unjust and moraly ambigous oppresion.

But the worst thing of all is the hypocrisy. SERBS WILL CELEBRATE THE FACT THEY HAVE BEEN RULED INNOCENT, NEXT TO CELEBRATING ALL THE THINGS THEY HAVE DONE AND FROM WICH THEY HAVE BEEN ACUITED, WHILE THEY ARE PLANNING HOW TO GET THE REST OF US.

All i feel today is bitternes and hate.
And all i have realised is, that justice is only another privilege of the powerful. That only the most vicious and hyporcitic nations get their rights, while all the others only theoreticaly have them.

Adnan

Injustice gives birth to hate and it is hate that feeds the injustice wich bought it into life.

Yesterday the international court has laid a strong fundament for future hate.

Donald

To prof. Posner:

As to the ICJ ruling, you yourself surely know that it didn't even pass acquaintance with the rules of logic. It seems that, according to the ICJ, you can be A and non A at a same time - not perpetrator (or aiding and abeting), but nevertheless responsible for stoping the genocide. It was better if the Court just said that the rest of the world had a duty to stop genocide, not only Serbia - so next time they can stage a show trial called Bosnia v. rest of the world.

The burden of proof in the case was ridicolously high - the Court found persistent patern of mass scale war crimes in areas under Serbian control, yet it seems that persistent patern of behavior is not a proof of intent (not really rational, is it?). It follows that if somebody wants to prove that other side is trying to commit genocide, they need a letter of intent signed by perpetrators and sent directly to the Court in the Hague as a proof.

But your basic argument is that the ICJ ruling convicting Serbia will impede process of reconciliation. Guess what - now that several months have passed, Serbian newspapers are consistently saying that "separation between different ethnicities will work best", inspite of te ICJ ruling saying that Bosnian Serbs commited genocide - following the same logic you could also try arguing that Brown v. Board of Education was not in accordance with rational choice since it places undue costs on whites in America and no US Supreme Court ruling will help stop racial discrimination in the US. If white race in US decides to tolerate blacks, thats ok - but Supreme Court should not push for that. Hence, Plessy is still a god law.

Oh yes, final thought on application of rational choice in matters like genocide and so on. Chamberlain tried - it was certainly consistent with cost- benefit analysis not to obstruct Germany while taking over other countries. It is even cheaper to let them just kill Jews if that would satisfy them. I wonder how would anybody who is sane and normal propose to European Jews the same thing that its being proposed to Bosnians - that they should make peace with Nazi's and build a new, prosperous society since, you know, its too much to ask to punish Nazi's and dismantle what they achieved using violence.

The collective guilt argument that says that have Serbia been found guilty, ipso facto all Serbs are guilty and hence such judgment should be avoided, is nothing but a a parade of horribles and reminiscence of European conservatism which negates individual. Any reasonable person can tell a difference between the representatives of the government and the people - though technically representatives are ruling in accordance with the majority will, we all know that they follow their own interest. In case of judgment finding Serbia guilty, all that Serbs would need to do is distance themselves from the clique that was in power during war. Not even apologize would have been required. No sane person would think of extending a guilt of a government ruling during a certain period of time to all people and for all times. How often do you get acussed for slavery in the US or internment of Japanese? Because, you know, it was done by representatives for whom your ancestors voted for.

Right know we have extremelly idiotical situation where almost all Bosnian Serb or Serbian government and army officials that are accused of or found guilty of war crimes and genocide infront of the ICTY. Yet, the products of their actions are well and alive - somebody is enjoying profits, and the majority is free riding on it. Can you imagine the corporation whose board of trustees and managers were all found guilty of embezlement and acquring high but illegal profits for corporation, they all go to jail, yet the corporation keeps illegal profits and continues to capitalize on them? I don't know which law would allow for that.



Donald

Again for Prof. Posner:

Not to leave a wrong impression, I would rather be interested to hear how do you interpret judgements convicting leaders of Bosnian Serbs in front of the ICTY or some still pending cases in the ICTY that will most likely find several highest officials of Serbian government guilty for same acts in light of the principal agent relationship?

As to the reparations, I think that Bosnia should have had abandoned all claims of reparations at the begining of the trial. Reparations, in this case, are good for nothing. Have Bosnia done so, it would have gained much more more leverage in the course of trial, and that would be consistent with the opinions of general Bosnian public which (according to newspapers) rarely, if ever, spoke of reparations. The ammount of suffering you have to take, diminishes the utility and value of money across time, I guess - I could make a nice mathematical formula out of that. Ask any descendant of European Jews if their elders have gained any additional happines from money sent to them by the German government (which was American money anyway, bu the way).

But in this case, what is the detterance effect anyway? The worst outcome, in front of the ICJ at least, that any future perpetrator of war crimes can expect is slap on hands and a moral speech. Now, that really hurts. Legal advisors to dictators around the world coudl say, i.e., to their clients "As long as you dont step on the US tow, its just fine - keep going."

Kenan

"moslem Nazis".

If you put together "moslem" (a religion that preaches equality of all people and races), and "Nazi" (wich is an aryan racist ideology). What do yo get? An oxymoron.

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