SHAW: ICJ’S SERBIAN GENOCIDE VERDICT DOES NOT IMPROVE THE STANDING OF THE COURT
Selcuk GultaªLi Brussels
Today’s Zaman, Turkey
March 10 2007
The International Court of Justice (ICJ) ruling on Bosnia has created
waves of intense debate, not only in Bosnia and Serbia but all over
the world.
As the ICJ cleared Serbian state of genocide, both Bosnian victims
and many scholars criticized the verdict as being political.
Professor Martin Shaw of Sussex University, one of the leading
experts of the issue, has strongly condemned the decision and
accused the ICJ of "engaging in the systematic denial of the Bosnian
Genocide." Professor Shaw answered our questions:
In your article "The International Court of Justice: Serbia, Bosnia
and Genocide," posted on the opendemocracy.net Web site, you argue:
"It is not too strong to say that in this case, the International
Court of Justice has engaged in systematic denial of the Bosnian
genocide." It is quite a tough statement.
Clearly the International Court of Justice did recognize that
genocide occurred at Srebrenica and indicted Serbia with its failure
to prevent the massacre there. This is important. However, while the
court recognized that acts that could constitute genocide had been
committed by Serbian nationalists across Bosnia throughout the years
1992-1995, it produced unconvincing, inconsistent legal reasons for
saying that genocide had not generally occurred. Thus I argue that
the court denied the full scale of the Bosnian genocide — because
it recognized genocide at Srebenica, this was a partial denial of
the Bosnian genocide, but a serious failure nonetheless.
Is this verdict a purely technical one or a political one? How one
can make that distinction?
The court argued its verdict in legal terms. However, because of the
unconvincing character of its legal arguments, one is bound to ask
whether political factors influenced the verdict.
If the decision was not taken not on purely legal grounds, what are
the other considerations?
Clearly the court could have wanted to avoid a verdict that would
have provoked further political conflict inside Serbia, where the
situation is currently delicate. But we cannot be certain that this
sort of consideration influenced the verdict.
Anthony Dworkin, also writing for opendemocracy.net, has criticized
your approach and implies that genocide is something serious and
cannot be applied wherever you like. He also argues that the Serbs’
intentions regarding the Bosnians were far from clear.
I agree that genocide is a serious charge. This is why it must not
be applied lightly — nor must it be rejected or minimized without
good reason. I think the Serbian intentions to destroy the Bosnian
Muslim and Croat communities, in the areas of Bosnia-Herzegovina that
the Serbian nationalists controlled or conquered, were very clear and
consistent from the widespread policies of expulsion, murder and rape
that they adopted from 1992 onwards. And they were, and still are,
largely successful — only a small number of non-Serbs remain in the
so-called Republika Srpska inside Bosnia.
As you said in your article: "Yet in relation to the Srebrenica
massacre, the ICJ ‘sees no reason to disagree’ with the finding of
the [International Criminal Tribunal for the former Yugoslavia] that
these acts constituted genocide." How can one possibly explain this?
It seems to me that this is a compromise verdict. The court upheld
the Bosnian claim that genocide was committed at Srebrenica, but in
other respects upheld the Serbian view that genocide had not been
committed. So both sides gained something.
Do you think the confidence in the court will now be in jeopardy with
the latest verdict?
This kind of verdict does not improve the standing of the court.
How do you think the verdict will contribute to the healing process
in the region?
I think the verdict will not help much since it is inconsistent and
enables both sides to stick to their original positions, saying they
have won something.
Do you think this verdict has once more punished Bosnians who were
victims and rewards the Serbian state by clearing it from the "crime
of crimes," i.e., genocide?
It is too strong to say that this has rewarded Serbia, since clearly
there are some serious indictments of it and there is more pressure to
yield Ratko Mladic to the Hague. But the Serbian state has certainly
escaped the more serious consequences that could have followed if
Bosnia’s case had been fully successful.
Have Bosnian Muslims interpreted the verdict as yet another decision of
the West against Muslims? How do you react to the Bosnians’ evaluation?
I think this is too simple. This was an international court with judges
drawn from a wide range of countries. And it does still reinforce
the prevailing view that the Serbians were the main criminals in the
Bosnian war and the Muslims the main victims.
Muslims in Europe, citing the cartoons of the Prophet of Islam
and the war in Iraq, argue that this verdict will not help in the
dialogue between civilizations. Do you think the verdict can have
such implications?
Genocide should not be an issue between civilizations. Muslims were
victims in Bosnia, but they were also victims in Iraq when Saddam’s
regimes massacred Kurds, and they are victims there today when Sunni
militias kill Shia, and Shia militias kill Sunnis. Muslims can be
perpetrators of genocide as well as victims; Christians can be victims
as well as perpetrators. From a human point of view we have to stop
all genocide — whoever commits it and whoever is the victim.
Another popular question among Muslims is if the Bosnians were
Christians and the Serbs Muslims, would the verdict be the same?
International courts and authorities often avoid recognizing genocide
whoever the victims are — look at Rwanda, where the UN turned away
from helping the Tutsis, who were mostly Christians. This weakness
of international institutions is not to do with anti-Muslim ideas.
Turkey has been accused of the Armenian "genocide" with no court
decision and you have referred to the events of 1915 as genocide in
your book "War and Genocide: Organized Killing in Modern Society?" Do
you think the court decision can create a jurisprudence for similar
cases? If Turkey goes to international arbitration, for example,
do you think it can be exonerated?
The International Court of Justice decision arose because Bosnia took
a case against Serbia to the court. In relation to the events of 1915,
no such case can now arise: this is now a matter for history rather
than law. However, just as Serbia will not be a healthy society until
it recognizes the Serbian state’s responsibility for genocide in Bosnia
and Kosovo, so Turkey will not be a healthy society until it abandons
the denial of the Ottoman genocide against the Armenians. Nearly
a century on, it should be possible for modern Turkish democracy to
fully acknowledge that this crime was committed, and to say that Turkey
today is a society in which this kind of policy will never again arise.
I don’t think I can answer your question about international
arbitration, as I don’t know enough about it. I’m not sure in any case
that the issues arising from the Armenian genocide are necessarily
issues between modern Turkey and modern Armenia, although if both sides
favored that, it could help. The ICJ decision by itself is only one
decision in the international jurisprudence of genocide, and needs
to be seen with other decisions by the tribunals and the new ICC.
Do you think it is wise to legislate laws to punish the deniers of
genocides or to legislate on historical events?
No, in general I think that it is better to deal with genocide denial
through argument and education than through law.
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