Tomuschat: Reparation in Cases of Genocide

Christian Tomuschat (Humboldt Univ. - Law) has posted Reparation in Cases of Genocide (J. Int'l Crim. Just., forthcoming). Here's an excerpt:

The judgment of the International Court of Justice of 26 February 2007 must have left the Muslim population of Bosnia and Herzegovina in a state of perplexity and bitterness. First of all, the finding that Serbia, at the relevant time the Federal Republic of Yugoslavia, did not commit genocide was contrary, in their eyes, to what they as the victims had witnessed as first-hand evidence. Second, the finding that Serbia violated its obligation to prevent genocide is not accompanied by any tangible consequential finding. The Court confines itself to stating that ‘a declaration of this kind is “in itself appropriate satisfaction”’. No reasons are given for this rather cursory treatment of the request for reparation. Thus, the death of more than 7,000 Bosnian Muslim men entails no substantial reparation for the benefit of the next of kin of the slaughtered victims. Serbia receives a blame which has a legal character but this boils down to no more than a gesture of moral reprobation - and that disposes of the matter. It is true that the perspective of the layman cannot be determinative. To establish legal responsibility in accordance with the applicable rules of international law is a complex juridical process which cannot be accomplished solely by looking at the relevant facts. These facts need to be assessed and evaluated by lawyers - but even lawyers will find it hard to follow the Court’s convoluted line of reasoning.