Genocide - Political Tool or Heinous Crime?

Last Monday, the International Court of Justice (ICJ) rendered its judgment in Bosnia and Herzegovina v. Serbia and Montenegro [ICJ docket]. The court held that it lacked sufficient evidence to hold Serbia directly responsible for genocide or complicity in genocide and found Serbia merely guilty for not meeting its obligations under the Genocide Convention [text] to prevent and punish genocide. The case marks the first time that a UN member state has been tried for genocide under the 1948 Genocide Convention and is likely to set the tone for future cases.

With regards to individual perpetrators, the International Tribunal for the Former Yugoslavia (ICTY) had already ample opportunities to apply the Genocide Convention. In Krstic [opinion], the appeals chamber of the ICTY held that the threshold for establishing specific intent required for the crime of genocide has to be set very high, because "[g]enocide is one of the worst crimes known to humankind [...]." The ICJ in its recent decision seems to adopt this approach of creating an insurmountable standard of proof for establishing genocide.

From the legal perspective, the decision not to hold Serbia directly responsible for genocide comes as a surprise. Awn Shawkat Al-Khasawneh, Vice-President of the ICJ, stated in the conclusion of his dissenting opinion [ICJ docket]:

The Court has absolved Serbia from responsibility for genocide in Bosnia and Herzegovina - save for responsibility for failure to prevent genocide in Srebrenica. It achieved this extraordinary result in the face of vast and compelling evidence to the contrary. [emphasis added]

Politically, however, it appears that such an outcome has been anticipated in order to facilitate the planned independence of Kosovo, which depends on the Serbian authorities' benevolence. Thus, Anes Alic [article], senior writer and analyst for ISN Security Watch, notes:

There will be few rumblings in Sarajevo, at least from the wider public. Those even only slightly attuned to regional and international politics know that the crimes that happened in Bosnia will be conveniently forgotten in the name of the greater good. Today, the greater good seems to be appeasing Serbia in order to push through independence for Kosovo and avoid the bloodshed that would ensure if the ethnic Albanians do not win this round.

All things considered, the recent ICJ decision holds a certain oxymoron: On the one hand, the court sets the standards for proving genocide incredibly high apparently due to the seriousness of the crime. On the other hand, the crime of genocide appears not to be serious enough to be shielded from political opportunism.