Dimitrijević & Milanović: The Strange Story of the Bosnian Genocide Case

Vojin Dimitrijević (Belgrade Centre for Human Rights) & Marko Milanović (Belgrade Centre for Human Rights) have posted The Strange Story of the Bosnian Genocide Case (Leiden Journal of International Law, forthcoming). Here's the abstract:

In February 2007, the International Court of Justice rendered its judgment on the merits of the Genocide case, thereby writing the final chapter to a story which has been pending before it for some 14 years. This judgment will certainly prove to be one of the ICJ's most significant, both legally and politically. In brief, the Court concluded that genocide was perpetrated in Bosnia by the Bosnian Serb armed forces, but solely in the town of Srebrenica in July 1995, that Serbia was neither responsible for the commission of that genocide nor complicit in it, but that it was responsible for failing to prevent it and for failing to punish its perpetrators.

The purpose of this article will not be to parse the paragraphs of the judgment in meticulous legal analysis, a worthy endeavour though that might be. This article will instead try to explore the context and the multifaceted peculiarity of this case, which is at least as great as its importance, and the examination of which is absolutely necessary for a proper understanding of its outcome.

Almost every aspect of the Genocide case is odd. At one level, this case was never really about genocide, or at least genocide as international lawyers think of the term. Moreover, while the case was pending both of the parties underwent a series of crucial transformations. Even if, formally speaking, their legal personality remained the same, the parties were anything but the same in 1993, when the application was submitted, in 1996, when the Court decided on its jurisdiction, and in 2007, when the final judgment was rendered.

The ICJ was also, probably for the first time in its history, faced with a case in which the principal, underlying dispute was actually within the applicant state itself, between the Bosniaks (Bosnian Muslims) and the Bosnian Serbs, whose army committed the Srebrenica genocide, and who actively tried to obstruct the progress of the Genocide case at every turn. The case is also notorious for a number of unprecedented procedural maneuvers. The article will explain both the progress and the outcome of the case in the context of the wider political disputes within Bosnia and Serbia.