On ‘Bad Law’ and ‘Good Politics’: The Politics of the ICJ Genocide Case and Its Interpretation

Abstract

AbstractThe discontent within legal ranks over the recent judgment of the International Court of Justice in Bosnia and Herzegovina v. Serbia and Montenegro can be described as nothing other than poignant. The stylized characterization voiced privately by many critics is that the judgment amounted to ‘bad law’ and ‘good politics’; that the Court's ruling had been profoundly influenced by Serbia's fragile domestic politics and hence this worked silently to constrain the Court's rationale and lawmaking. Sadly, critics opine, this political intrusion into the sanctuary of lawmaking produced a judgment that now denies the ‘universal’ deterrent which the Genocide case could have provided. This article, however, takes direct issue with axiomatic interpretations of what constitutes ‘bad law’ and ‘good politics’ in the Genocide case, and argues instead that an antithetical characterization of law with politics proves fundamentally misleading when analysing the Genocide judgment, overlooking the inherent association between law and politics in complex cases that have now become ‘bread and butter’ for international lawyers. In sum, this article will argue, the judgment should not be written off using the dichotomy of ‘bad law’ and ‘good politics’, but rather should invoke critical reflection within the academic discipline and professional practice on the problems of politics which constitute and hence unavoidably permeate cases that emerge from calamitous failures of international politics. The hardening of the fictional boundary between law and politics may provide a convenient gambit for those advocating the ascendancy of international law. However, it is argued, obfuscating the political swamp which is ‘international justice’ cannot make a juridical pasture no matter how much authoritative or ‘learned’ ink is spent; and this is perhaps the key lesson which should be discerned by legal experts from the Genocide case as a whole.