Shaw: ICJ’s Serbian genocide verdict does not improve the standing of the court
10.03.2007
Today's Zaman
SELÇUK GÜLTAŞLI - BRUSSELS
The International Court of Justice (ICJ) ruling on Bosnia has created waves of intense debate, not only in Bosnia and Serbia but all over the world.
As the ICJ cleared Serbian state of genocide, both Bosnian victims and many scholars criticized the verdict as being political.
Professor Martin Shaw of Sussex University, one of the leading experts of the issue, has strongly condemned the decision and accused the ICJ of "engaging in the systematic denial of the Bosnian Genocide." Professor Shaw answered our questions:
In your article "The International Court of Justice: Serbia, Bosnia and Genocide," posted on the opendemocracy.net Web site, you argue: "It is not too strong to say that in this case, the International Court of Justice has engaged in systematic denial of the Bosnian genocide." It is quite a tough statement.
Clearly the International Court of Justice did recognize that genocide occurred at Srebrenica and indicted Serbia with its failure to prevent the massacre there. This is important. However, while the court recognized that acts that could constitute genocide had been committed by Serbian nationalists across Bosnia throughout the years 1992-1995, it produced unconvincing, inconsistent legal reasons for saying that genocide had not generally occurred. Thus I argue that the court denied the full scale of the Bosnian genocide -- because it recognized genocide at Srebenica, this was a partial denial of the Bosnian genocide, but a serious failure nonetheless.
Is this verdict a purely technical one or a political one? How one can make that distinction?
The court argued its verdict in legal terms. However, because of the unconvincing character of its legal arguments, one is bound to ask whether political factors influenced the verdict.
If the decision was not taken not on purely legal grounds, what are the other considerations?
Clearly the court could have wanted to avoid a verdict that would have provoked further political conflict inside Serbia, where the situation is currently delicate. But we cannot be certain that this sort of consideration influenced the verdict.
Anthony Dworkin, also writing for opendemocracy.net, has criticized your approach and implies that genocide is something serious and cannot be applied wherever you like. He also argues that the Serbs' intentions regarding the Bosnians were far from clear.
I agree that genocide is a serious charge. This is why it must not be applied lightly -- nor must it be rejected or minimized without good reason. I think the Serbian intentions to destroy the Bosnian Muslim and Croat communities, in the areas of Bosnia-Herzegovina that the Serbian nationalists controlled or conquered, were very clear and consistent from the widespread policies of expulsion, murder and rape that they adopted from 1992 onwards. And they were, and still are, largely successful -- only a small number of non-Serbs remain in the so-called Republika Srpska inside Bosnia.
As you said in your article: "Yet in relation to the Srebrenica massacre, the ICJ 'sees no reason to disagree' with the finding of the [International Criminal Tribunal for the former Yugoslavia] that these acts constituted genocide." How can one possibly explain this?
It seems to me that this is a compromise verdict. The court upheld the Bosnian claim that genocide was committed at Srebrenica, but in other respects upheld the Serbian view that genocide had not been committed. So both sides gained something.
Do you think the confidence in the court will now be in jeopardy with the latest verdict?
This kind of verdict does not improve the standing of the court.
How do you think the verdict will contribute to the healing process in the region?
I think the verdict will not help much since it is inconsistent and enables both sides to stick to their original positions, saying they have won something.
Do you think this verdict has once more punished Bosnians who were victims and rewards the Serbian state by clearing it from the "crime of crimes," i.e., genocide?
It is too strong to say that this has rewarded Serbia, since clearly there are some serious indictments of it and there is more pressure to yield Ratko Mladic to the Hague. But the Serbian state has certainly escaped the more serious consequences that could have followed if Bosnia's case had been fully successful.
Have Bosnian Muslims interpreted the verdict as yet another decision of the West against Muslims? How do you react to the Bosnians' evaluation?
I think this is too simple. This was an international court with judges drawn from a wide range of countries. And it does still reinforce the prevailing view that the Serbians were the main criminals in the Bosnian war and the Muslims the main victims.
Muslims in Europe, citing the cartoons of the Prophet of Islam and the war in Iraq, argue that this verdict will not help in the dialogue between civilizations. Do you think the verdict can have such implications?
Genocide should not be an issue between civilizations. Muslims were victims in Bosnia, but they were also victims in Iraq when Saddam's regimes massacred Kurds, and they are victims there today when Sunni militias kill Shia, and Shia militias kill Sunnis. Muslims can be perpetrators of genocide as well as victims; Christians can be victims as well as perpetrators. From a human point of view we have to stop all genocide -- whoever commits it and whoever is the victim.
Another popular question among Muslims is if the Bosnians were Christians and the Serbs Muslims, would the verdict be the same?
International courts and authorities often avoid recognizing genocide whoever the victims are -- look at Rwanda, where the UN turned away from helping the Tutsis, who were mostly Christians. This weakness of international institutions is not to do with anti-Muslim ideas.
Turkey has been accused of the Armenian "genocide" with no court decision and you have referred to the events of 1915 as genocide in your book "War and Genocide: Organized Killing in Modern Society?" Do you think the court decision can create a jurisprudence for similar cases? If Turkey goes to international arbitration, for example, do you think it can be exonerated?
The International Court of Justice decision arose because Bosnia took a case against Serbia to the court. In relation to the events of 1915, no such case can now arise: this is now a matter for history rather than law. However, just as Serbia will not be a healthy society until it recognizes the Serbian state's responsibility for genocide in Bosnia and Kosovo, so Turkey will not be a healthy society until it abandons the denial of the Ottoman genocide against the Armenians. Nearly a century on, it should be possible for modern Turkish democracy to fully acknowledge that this crime was committed, and to say that Turkey today is a society in which this kind of policy will never again arise.
I don't think I can answer your question about international arbitration, as I don't know enough about it. I'm not sure in any case that the issues arising from the Armenian genocide are necessarily issues between modern Turkey and modern Armenia, although if both sides favored that, it could help. The ICJ decision by itself is only one decision in the international jurisprudence of genocide, and needs to be seen with other decisions by the tribunals and the new ICC.
Do you think it is wise to legislate laws to punish the deniers of genocides or to legislate on historical events?
No, in general I think that it is better to deal with genocide denial through argument and education than through law.
Note: Above are excerpts from the article. The full article appears here. Clarifications and comments by me are contained in {}. Deletions are marked by [...]. The bold emphasis is mine.
Today's Zaman
SELÇUK GÜLTAŞLI - BRUSSELS
The International Court of Justice (ICJ) ruling on Bosnia has created waves of intense debate, not only in Bosnia and Serbia but all over the world.
As the ICJ cleared Serbian state of genocide, both Bosnian victims and many scholars criticized the verdict as being political.
Professor Martin Shaw of Sussex University, one of the leading experts of the issue, has strongly condemned the decision and accused the ICJ of "engaging in the systematic denial of the Bosnian Genocide." Professor Shaw answered our questions:
In your article "The International Court of Justice: Serbia, Bosnia and Genocide," posted on the opendemocracy.net Web site, you argue: "It is not too strong to say that in this case, the International Court of Justice has engaged in systematic denial of the Bosnian genocide." It is quite a tough statement.
Clearly the International Court of Justice did recognize that genocide occurred at Srebrenica and indicted Serbia with its failure to prevent the massacre there. This is important. However, while the court recognized that acts that could constitute genocide had been committed by Serbian nationalists across Bosnia throughout the years 1992-1995, it produced unconvincing, inconsistent legal reasons for saying that genocide had not generally occurred. Thus I argue that the court denied the full scale of the Bosnian genocide -- because it recognized genocide at Srebenica, this was a partial denial of the Bosnian genocide, but a serious failure nonetheless.
Is this verdict a purely technical one or a political one? How one can make that distinction?
The court argued its verdict in legal terms. However, because of the unconvincing character of its legal arguments, one is bound to ask whether political factors influenced the verdict.
If the decision was not taken not on purely legal grounds, what are the other considerations?
Clearly the court could have wanted to avoid a verdict that would have provoked further political conflict inside Serbia, where the situation is currently delicate. But we cannot be certain that this sort of consideration influenced the verdict.
Anthony Dworkin, also writing for opendemocracy.net, has criticized your approach and implies that genocide is something serious and cannot be applied wherever you like. He also argues that the Serbs' intentions regarding the Bosnians were far from clear.
I agree that genocide is a serious charge. This is why it must not be applied lightly -- nor must it be rejected or minimized without good reason. I think the Serbian intentions to destroy the Bosnian Muslim and Croat communities, in the areas of Bosnia-Herzegovina that the Serbian nationalists controlled or conquered, were very clear and consistent from the widespread policies of expulsion, murder and rape that they adopted from 1992 onwards. And they were, and still are, largely successful -- only a small number of non-Serbs remain in the so-called Republika Srpska inside Bosnia.
As you said in your article: "Yet in relation to the Srebrenica massacre, the ICJ 'sees no reason to disagree' with the finding of the [International Criminal Tribunal for the former Yugoslavia] that these acts constituted genocide." How can one possibly explain this?
It seems to me that this is a compromise verdict. The court upheld the Bosnian claim that genocide was committed at Srebrenica, but in other respects upheld the Serbian view that genocide had not been committed. So both sides gained something.
Do you think the confidence in the court will now be in jeopardy with the latest verdict?
This kind of verdict does not improve the standing of the court.
How do you think the verdict will contribute to the healing process in the region?
I think the verdict will not help much since it is inconsistent and enables both sides to stick to their original positions, saying they have won something.
Do you think this verdict has once more punished Bosnians who were victims and rewards the Serbian state by clearing it from the "crime of crimes," i.e., genocide?
It is too strong to say that this has rewarded Serbia, since clearly there are some serious indictments of it and there is more pressure to yield Ratko Mladic to the Hague. But the Serbian state has certainly escaped the more serious consequences that could have followed if Bosnia's case had been fully successful.
Have Bosnian Muslims interpreted the verdict as yet another decision of the West against Muslims? How do you react to the Bosnians' evaluation?
I think this is too simple. This was an international court with judges drawn from a wide range of countries. And it does still reinforce the prevailing view that the Serbians were the main criminals in the Bosnian war and the Muslims the main victims.
Muslims in Europe, citing the cartoons of the Prophet of Islam and the war in Iraq, argue that this verdict will not help in the dialogue between civilizations. Do you think the verdict can have such implications?
Genocide should not be an issue between civilizations. Muslims were victims in Bosnia, but they were also victims in Iraq when Saddam's regimes massacred Kurds, and they are victims there today when Sunni militias kill Shia, and Shia militias kill Sunnis. Muslims can be perpetrators of genocide as well as victims; Christians can be victims as well as perpetrators. From a human point of view we have to stop all genocide -- whoever commits it and whoever is the victim.
Another popular question among Muslims is if the Bosnians were Christians and the Serbs Muslims, would the verdict be the same?
International courts and authorities often avoid recognizing genocide whoever the victims are -- look at Rwanda, where the UN turned away from helping the Tutsis, who were mostly Christians. This weakness of international institutions is not to do with anti-Muslim ideas.
Turkey has been accused of the Armenian "genocide" with no court decision and you have referred to the events of 1915 as genocide in your book "War and Genocide: Organized Killing in Modern Society?" Do you think the court decision can create a jurisprudence for similar cases? If Turkey goes to international arbitration, for example, do you think it can be exonerated?
The International Court of Justice decision arose because Bosnia took a case against Serbia to the court. In relation to the events of 1915, no such case can now arise: this is now a matter for history rather than law. However, just as Serbia will not be a healthy society until it recognizes the Serbian state's responsibility for genocide in Bosnia and Kosovo, so Turkey will not be a healthy society until it abandons the denial of the Ottoman genocide against the Armenians. Nearly a century on, it should be possible for modern Turkish democracy to fully acknowledge that this crime was committed, and to say that Turkey today is a society in which this kind of policy will never again arise.
I don't think I can answer your question about international arbitration, as I don't know enough about it. I'm not sure in any case that the issues arising from the Armenian genocide are necessarily issues between modern Turkey and modern Armenia, although if both sides favored that, it could help. The ICJ decision by itself is only one decision in the international jurisprudence of genocide, and needs to be seen with other decisions by the tribunals and the new ICC.
Do you think it is wise to legislate laws to punish the deniers of genocides or to legislate on historical events?
No, in general I think that it is better to deal with genocide denial through argument and education than through law.
Note: Above are excerpts from the article. The full article appears here. Clarifications and comments by me are contained in {}. Deletions are marked by [...]. The bold emphasis is mine.
Labels: Genocide Denial Law, ICJ
posted by Vahe Balabanian at 1:26 PM
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