Sunday, March 11, 2007

The ‘right kind of monster’

An informative and concise overview and background of the ICJ’s recent Bosnia v Serbia ruling noted an interesting dimension to the judgment, observing that it “backed up a previous judgment which found that the United States was not responsible for the actions of the contras in Nicaragua in the 1980s.”

This was from the same Nicaragua v United States ruling of 1986 in which the USA was ordered to pay reparations to Nicaragua, but of course did no such thing.

More importantly, however, the article noted a serious deficiency in the Bosnia v Serbia proceedings, namely the withholding of crucial evidence which was freely available to the ICTY prosecution of Slobodan Milosevic. This is a salient detail that stinks to high heaven, and clearly disturbed those judges who dissented from the ICJ ruling.

Regarding the actual judgment, it’s also interesting that Court Vice-President Awn Shawkat Al-Khasawneh (Jordan) was, with Judge ad hoc Mahiou, a fairly consistent dissenter to many of the key findings. Al-Khasawneh’s dissenting opinion is also illuminating in its specific, albeit somewhat technical, discussion of the issues.

It’s notable, however, that the margin of dissent in the findings was quite small, so critics of the decision may be disappointed that the court could not be said to have been ‘split’ by any stretch.

Mainstream reaction in Australia to the ICJ ruling has been rather muted, but a recent article by Natasha Cica was unambiguous about the correctness of the ruling:

Fortunately in this, its first-ever ruling on an accusation of genocide — the most horrible of crimes — the court rejected those lazy leaps [of conflating ethnic cleansing with genocide] 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.

Cica also suggested that the correctness of the ruling is vindicated by the fact that “no partisan player felt completely vindicated.” Noting protestations of justice denied to the victims of Srebrenica, Cica waxes philosophical:

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?

These are interesting questions that would take reams to provide some kind of adequate response. Certainly the perpetrators of the Srebrenica massacre “shape up” as monsters in anyone’s language. Yet we’re to accept that the Serbian authorities’ ambiguous command relationship with the Bosnian Serb forces technically qualifies, and therefore mitigates, the former’s monstrousness.

One way or another, this ruling will probably not be the end of the matter.


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