Worldview Commentary No. 256 on Chicago Public Radio, 91.5 FM WBEZ

Author: Susan Good

“Genocide by Proxy – The World Court Weighs In”

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When is a nation legally responsible for atrocities carried out by armed groups it supports in another nation? And what are the consequences?

These questions are not merely theoretical. In 1986 the International Court of Justice (also known as the World Court) ruled that the United States was not generally liable for human rights violations committed by the Contras in Nicaragua. Even though the US created, funded and trained the Contras, the Court ruled that the US was not responsible for most of their actions, because Washington did not have “effective control of the military or paramilitary operations in the course of which the alleged violations were committed.”

The World Court has now reaffirmed that holding. This week the Court ruled in a case brought by Bosnia and Herzegovina against Serbia for allegedly supporting genocide committed in Bosnia by the Bosnian Serb army. The Court found that Serbia neither committed nor was complicit in the genocide, but did violate international law by failing to take reasonable steps to prevent the genocide and to punish those who committed it.

Paradoxically, the new ruling may make it both harder and easier to hold nations accountable for atrocities carried out by armed groups they support in other countries.

Bosnia originally sued the Federal Republic of Yugoslavia (now Serbia) in 1993. Bosnia accused Yugoslavia of committing or sponsoring aggression, war crimes, gross violations of human rights and genocide against Bosnian Muslims.

But it was not clear that Yugoslavia was subject to the World Court’s general jurisdiction to decide disputes between countries. The Court’s ability to hear the case thus turned on whether Yugoslavia had joined particular treaties which refer disputes to the Court. In a 1993 order on emergency protective measures requested by Bosnia, the Court ruled that the only treaty under which it could rule was the Convention against Genocide.

That greatly narrowed the issues before the Court. It could not rule on war crimes, crimes against humanity or any other violation of international law, except for genocide.

Genocide is a very difficult crime to prove. It is not mere mass murder. It requires proof that the perpetrator specifically intended to eliminate, in whole or substantial part, a targeted ethnic, racial, religious or national group.

When the Court this week finally reached the merits of the case, it found only one instance in the entire Yugoslav war that clearly amounted to genocide: the massacre by the Bosnian Serb army of 7,000 Muslim men in Srebrenica in July 1995. The question, then, was whether neighboring Yugoslavia (now Serbia) could be held responsible for this genocide.

The Court’s answer was, “no.” Relying on investigations by the United Nations, the Dutch government and the CIA, and on judgments in criminal cases by the International Criminal Tribunal for the Former Yugoslavia, the World Court found no clear evidence that Yugoslavia ordered, participated in, or even knew about the genocide in time.

According to judges in international criminal cases against Bosnian Serb commanders, the massacre was not pre-planned. It was a decision taken on the fly, when the Muslim men of Srebrenica unexpectedly surrendered. It was all over in a matter of a few days.

Yes, the Court found, Yugoslavia funded and supplied the Bosnian Serb army and exercised a great deal of influence over its military actions overall. But Yugoslavia could not be held liable for the Srebrenica massacre, because there was no proof that Yugoslavia had effective control over that particular offensive.

This strict test – effective control over specific military operations in which atrocities are committed – will make it very difficult to hold countries accountable for proxy violence against their neighbors.

At the same time, at least in cases of genocide, the Court made it easier to hold countries accountable. The Convention against Genocide requires States Parties (which include the US) to act reasonably to prevent genocide and to punish its perpetrators. The Court held that Yugoslavia could and should have foreseen the risk of genocide at Srebrenica, yet did nothing to prevent it beforehand or to punish it afterward.

Although this ruling was limited to genocide, it could arguably be expanded to cover many other gross violations of human rights. Regional human rights treaties in Europe, Africa and the Americas, as well as the UN’s International Covenant on Civil and Political Rights, to which more than 150 countries (including the US) are parties, have all been interpreted by international courts and commissions to impose duties on States to prevent and to punish gross violations.

In at least some circumstances, this duty applies to actions taken by a State outside its borders, such as collaborating with armed groups in other countries.

In such cases, however, the remedy may be limited. The World Court held that Serbia was not obligated to pay damages to Bosnia, because even if Serbia had made reasonable efforts to prevent the genocide, the relatively independent Bosnian Serb army might have committed the slaughter anyway.

The key remedy ordered by the Court, then, was its order that Serbia take reasonable steps to arrest the remaining fugitives and turn them over to the International Criminal Tribunal for the Former Yugoslavia. Among them is former Bosnian Serb General Ratko Mladic, who may have been the mastermind of the Srebrenica genocide, and who reportedly has taken refuge in Serbia for extended periods in recent years.

Liability for failure to prevent or to punish is, then, no substitute for holding a State liable for atrocities carried out by armed proxies in other countries. If international law is to protect the lives of human beings as much as the prerogatives of powerful States, the ruling in the Serbian case must come to be seen as a relic of an outmoded era of undue deference to unchecked power.

Doug Cassel’s commentaries are generally broadcast Wednesdays during the noon hour of the Worldview program on Chicago Public Radio, 91.5 FM, and rebroadcast at 9 PM in the evening. Views expressed are personal views of the author and not necessarily those of Notre Dame Law School, the Center for Civil and Human Rights or Chicago Public Radio.