Shany: Bosnia, Serbia and the Politics of International Adjudication

Yuval Shany (Hebrew Univ. - Law) has posted Bosnia, Serbia and the Politics of International Adjudication. Here's the abstract:

The judgment of the International Court of Justice (ICJ) in the case concerning the Application of the Convention on the Prevention and Punishment of Genocide (Bosnia-Herzegovina v. Serbia, hereinafter Bosnian Genocide), issued on 26 February 2007, has already become the source of considerable controversy, which can be attributed, in part, to the mixed nature of the outcome.

While it was the first ICJ judgment in history to pronounce that genocide had been committed, it exonerated Serbia from direct responsibility for the genocide in Srebrenica (holding, instead, that it 'merely' failed to prevent genocide).

This short note suggests the outcome of the case may represent an attempt by the Court to promote conciliatory or transactional justice and to partly satisfy the interests of all parties to the case. Although international judges often deny that they resort to such judicial calculations, there is little doubt in my mind that considerations relating to the acceptability of the judgment are factored in the judicial process. Moreover, from a normative perspective, such considerations probably represent under current international conditions a "lesser evil". Still, acknowledging the inevitability of "judicial politics" does not solve the serious problems associated with this practice.