A Solomon's verdict

Some might call it it a Solomon decision, others would call it a political decision, today's ICJ;s decision. I tend to agree with the latter. However, political verdicts are not by definition unwise.

The dolus specialis, the special intent needed for a crime to be the crime of genocide, is hard to prove, if not impossible to prove, for state institutions. And here it is not proven. In my humble opinion it is in any way hard to do this. How can an institution, namely the Serbian state, be held responsible for the intent to commit genocide, without holding its leaders criminal responsible for it, as was the case in this case? Convicting a state for this would make it a rouge state by definition, and therefore not eligible for accession into the European Union, and, keeping this rational in mind, ready for regime change, since the regime now is considered a direct successor the regime of the nineties? Ok, acceptee, I am simplifying things here, but what were the expectations of BiH when it started this case?

The answer is not simple, but I think it can be found in the time in which the case was initially brought before the Court- 1993. At the height of the war. I think they wanted to make a political statement, hoping that the world would help them, and would lift the weapons embargo that was enforced upon them.

I am afraid that that is exactly what they got- a political statement. But one they seem not to like today. A Solomon's verdict....

Genocide?

Today is a big day, provided that you are interested in International (Humanitarian) Law. Today is the day the International Court of Justice in The Hague will render its judgment in the case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide, or to say in layman's words: whether Serbia Montenegro committed genocide in BiH. Although this is not a criminal case, and therefore the threshold for proving whether genocide was committed is lower than in a criminal case, the outcome is still important for the crimes currently tried here before the court of BiH and before the ICTY, for obvious reasons. But it might have grave political consequences too, no matter what the verdict might be (it is now 09.00 am, and the verdict will be rendered at 10.00). If BiH will be proven right, which is the impression you will get walking around here (ok, not very surprisingly), this will put a strain on their relationship with Belgrade, because they will ask for billions of Dollars/ Euros in compensation, but it will also divide the Bosnian serbs and the Bosniaks again. For obvious reasons the Bosnian Serbs, who are about half of the Bosnian population, did not agree with their national government to go forward with this case.

I do not argue with the fact that the case was brought before the ICJ. As a jurist it makes sense. however, thinking ou of the legal box, all I see is a loose-loose situation on a political level today at 10.00 o'clock. No matter what the verdict may be.

Job opportunities

It has been a riviting week. I have resigned, and am leaving the Court of Bosnia and Herzegovina on the 16th of February. I will be unemployed from then on....

However, opportunities ahead: the position of Chief Prosecutor of the ICTY will be vacant from September onwards, as will be the position of High Representative for Bosnia and Herzegovina. For the latter position Larry Butler's name is mentioned, so I am afraid I do not stand a fair chance. Whos is going to succeed Del Ponte is still a mystery.

The departure of both of those persons, who play an important role in BiH, is greeted with mixed feelings. Up until now both have not delivered what they were supposed to do: Del Ponte did not bring Karadzic and Mladic to trial, and Schwartz-Schilling did not manage to reform and harmonise the Bosnian political playing field enough for the international community to feel comfortable leaving the country, and close down
OHR.
However, with tensions rising in BiH regarding Kosovo, the departure of those two people, how ineffective they might have been, might not be chosen at the right moment.