Can it be that a state's failure to prevent genocide -- long known as the crime of crimes -- incurs no duty to redress genocide's victims? That if the author of genocide is a nonstate actor, international law affords a victim state no reparations for its loss?In a New York Times commentary, our colleague Ruth Wedgwood answers, in effect:
"Yes, Virginia, there is a grave problem with Bosnia v. Serbia."Finding Serbia liable only for failure to prevent itself "fails to account for Belgrade's robust program of financing, equipping and supporting criminal militias," Wedgwood writes of the judgment "in a civil suit that should never have been brought if its result was to be so meager." She lists 3 reasons for the result: (1) the ICJ's rejection of the vicarious liability jurisprudence by which the International Criminal Tribunal for the former Yugoslavia has convicted a number of defendants; (2) the ICJ's use of criminal law's heavy proof burden in a civil suit; and (3) "a small jurisdictional embarrassment" arising out of the ICJ's earlier rebuff of Serbia's own lawsuit against NATO states.
This new judgment, Wedgwood asserts, "amounts to a posthumous acquittal" of deposed Serbian President Slobodan Milosevic, who died a year ago yesterday amid his ICTY trial on genocide charges, and it further "limits the charges that can be brought against" indicted fugitives Radovan Karadzic and Ratko Mladic. Perhaps so, perhaps not: Though the ICJ ruling surely complicates matters, it does not wholly foreclose the ICTY, another entity in today's nonhierarchical international legal order, from continuing to rule otherwise on critical issues of responsibility for the world's worst offenses.