Tuesday, February 27, 2007

Liable to Wonder, Indeed....

I finally slogged my way through the 350-page majority opinion by Judge Higgins discussed below. Phew. I am hopeful others have had time to read the other 11 opinions/declarations from other members of the Court.

As all genocide cases seem to do, the case turns on the question of intent—the dolus specialis—that is the gravamen of the crime of genocide. And yet, I was disappointed by how little there was on the intent issue in the opinion. The Court basically trotted through a bunch of facts pled about camps and sieges and then concluded at the end of each section that there was insufficient evidence of genocidal intent with respect to the particular incident. It was only with respect to the Srebrenica massacre that the Court found that the direct perpetrators were acting with genocidal intent. (This left open the question of attribution to the Respondent state which was dealt with in the second half of the opinion). In total, the Court is entirely consistent with what the Yugoslav war crimes tribunal has held with respect to these incidents. Most are not characterized as genocide writ large with Srebrenica being the notable exemption (in Krstić).

As a second approach to the question, Applicant made the argument that the events viewed as a whole, rather than seriatim, pattern of events, revealed a broader policy of genocide in Bosnia. The Court framed the question, and its answer, as follows:

373. Turning now to the Applicant’s contention that the very pattern of the atrocities committed over many communities, over a lengthy period, focused on Bosnian Muslims and also Croats, demonstrates the necessary intent, the Court cannot agree with such a broad proposition. The dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent. ...

376. The Court has already concluded above that—save in the case of Srebrenica—the Applicant has not established that any of the widespread and serious atrocities, complained of as constituting violations of Article II, paragraphs (a) to (e), of the Genocide Convention, were accompanied by the necessary specific intent (dolus specialis) on the part of the perpetrators. It also finds that the Applicant has not established the existence of that intent on the part of the Respondent, either on the basis of a concerted plan, or on the basis that the events reviewed above reveal a consistent pattern of conduct which could only point to the existence of such intent.

What sank Applicant was that early on in the opinion the Court considered the standard of proof it would apply. The Court rejected the balance of the probabilities standard advocated by the Applicant (this is a civil suit after all, there being no notion of state criminality). The Respondent had essentially argued for a beyond a reasonable doubt standard given the highly sensitive and stigmatizing nature of the allegations. As is its habit, the Court avoided announcing exactly the standard it would apply, but implied that the heightened standard was applicable:

209. The Court has long recognized that claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive. The Court requires that it be fully convinced that allegations made in the proceedings, that the crime of genocide or the other acts enumerated in Article III have been committed, have been clearly established. The same standard applies to the proof of attribution for such acts.
“Fully conclusive” and “fully convinced” sounds to me like “beyond a reasonable doubt”, although perhaps it is closer to clear & convincing? Query the fall out had the ICJ taken a radically different position on genocide in BiH than the ICTY especially under a close to equivalent standard of proof.

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