The big story in Europe this week was the judgement in the International Court of Justice acquitting Serbia of the charge of genocide for its actions in the Bosnian war, specifically the massacre at Srebrenica in 1995.
The court, although finding Serbia was not directly responsible, did hold that it had broken international law by failing to stop the killings and punish the perpetrators. Bosnians have expressed disappointment at the failure of the case.
But what the decision really shows is the inadequacy of the ICJ as a means of dealing with war crimes — a problem that the international community has already recognised and taken steps to redress.
The ICJ is one of the oldest organs of the United Nations, established under the UN charter in 1945 to deal with disputes between member nations. It has done valuable work in interpreting treaties and settling border disputes, but responsibility before the court is necessarily collective; it deals with the claims of nations, not individuals.
The problem is that individuals are the ones that commit crimes, including the most serious. Collective responsibility is usually a way of avoiding individual responsibility, as we see every day with corporate regulation — when “the company”, a legal fiction, is held liable, the costs are passed on to shareholders and consumers instead of the guilty individuals.
In relation to Bosnia, this problem was addressed in 1993 with the creation of the International Criminal Tribunal for the Former Yugoslavia. The tribunal prosecutes cases against individuals, and although it has not so far been an unqualified success — two of the most important indictees, Radovan Karadzic and Radko Mladic, are still at large, and Slobodan Milosevic died before his trial was completed — it has exposed the bloody history of the war and brought at least some individuals to account for their crimes.
The more permanent solution that has been offered is the International Criminal Court, established by treaty in 1998 and commencing work in 2003. It is designed to do on a permanent basis what various ad hoc tribunals have been doing since the Nuremberg trials: prosecute genocide, crimes against humanity and war crimes in cases where national courts are unable or unwilling to act.
But of course justice is not welcome to everyone, and many powerful countries, including China, India, Israel and the United States, have refused to accede to the ICC. Ratification of the ICC treaty was achieved in Australia only after an unusually intense debate within the government.
Until international law is more widely accepted, crimes like those at Srebrenica will continue to be imperfectly dealt with.