By Otto Spijkers
Can a state commit genocide, and be held accountable for it? For example: can the Serbian state be held responsible for the genocide of Srebrenica in July 1995? This is the question Bosnia asked the International Court of Justice. The court will deliver the judgement in this case on 26 February 2007. One would perhaps be inclined to say that only individuals can commit crimes. However, genocide is not an ordinary crime.
Drazen Erdemovic, a Bosnian Serb soldier who personally killed over seventy people in Srebrenica, claimed to have been a victim himself: he was the victim of what one can call a criminal environment. He explained his unbearable situation to one of the judges at the ICTY:
Your Honour, I had to do this. If I had refused, I would have been killed together with the victims. When I refused, they told me: ‘If you’re sorry for them, stand up, line up with them and we will kill you too.’ I am not sorry for myself but for my family, my wife and son who then had nine months, and I could not refuse because then they would have killed me.(Prosecutor v. Drazen Erdemovic, Case no. IT-96-22, Sentencing Judgement, 29 November 1996, para. 10.)
Despite his apparent lack of genocidal intent, the fact is that by killing over seventy people, Erdemovic did help carry out the genocide in Srebrenica. Krstic, an officer (Chief-of-Staff/Deputy Commander) of the VRS (Bosnian Serb Army), may have helped to create the criminal environment, but he spent less than two hours in Srebrenica, and did not kill anyone personally. (See Prosecutor v. Krstic, Case No: IT-98-33-T, Judgement (Trial), 2 Augustus 2001, paras. 461-477, esp. para. 465. See also Prosecutor v. Krstic, Case No: IT-98-33-A, Judgement (Appeals), 19 April 2004). The guilt, it seems, must be located elsewhere.
Perhaps one can speak of a state crime being committed in Srebrenica? International law does not recognize the concept of ‘state crime’, but it is possible, under international law, to hold a state responsible and accountable for the consequences of acts that are attributable to it (UNDoc. A/RES/59/35).
Bosnia-Herzegovina blamed Serbia that it "planned, prepared, conspired, promoted, encouraged, aided and abetted and committed genocide against the People and State of Bosnia and Herzegovina" (International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia). As a provisional measure in this case, the ICJ ordered, even before the genocide in Srebrenica actually took place, that "[t]he Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) should immediately, in pursuance of its undertaking in the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, take all measures within its power to prevent commission of the crime of genocide", and it "should in particular ensure that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any acts of genocide, of conspiracy to commit genocide, of direct and public incitement to commit genocide, or of complicity in genocide, whether directed against the Muslim population of Bosnia and Herzegovina or against any other national, ethnical, racial or religious group." (Order on the Request for the Indication of Provisional Measures, 8 April 1993, para. 52, in the Genocide Case (ICJ)).
If the ICJ accepts jurisdiction and follows the ICTY and considers what happened in Srebrenica as ‘genocide’, then clearly Serbia failed to prevent it.
But Bosnia went much further: it accused Serbia not only of failing to prevent the genocide, but also of committing genocide. One may wonder: does Bosnia thereby wish to establish the guilt of all Serbs for the genocide? Is that not what the Security Council tried to prevent from happening by establishing the ICTY? On the ICTY website one can read that "by trying individuals on the basis of their personal responsibility, be it direct or indirect, the ICTY personalizes guilt. It accordingly shields entire communities from being labelled as collectively responsible for others’ suffering." Prof. Thomas Franck, acting as counsel for Bosnia, explained to the judges of the ICJ that it was not their intention to establish the guilt of all Serbs:
Obviously, we are not trying to resuscitate the hoary notions of collective guilt, the guilt of all Serbs. We freely acknowledge that collective guilt is the discredited detritus of an age when individuals were legally indistinguishable from, or mere serfs of, their ruler: the king or the State. But, just as obviously, even in the new era of individual rights and responsibilities, the State has not ceased to exist. It is, and it acts, and it must be accountable. When the State commits a great evil, it cannot be allowed to escape responsibility by the punishment of a few leaders. (pleadings of 7 March 2006 (CR 2006/11), p. 53. Available online: http://www.icj-cij.org. )