Reparation in Cases of Genocide

Abstract

In the judgement delivered in Bosnia and Herzegovina v. Serbia, the International Court of Justice (ICJ) found that Serbia, with regard to the acts of genocide committed in Srebrenica, had breached the obligation, as set out in Article I of the 1948 Genocide Convention, to prevent genocide. However, it also found that Bosnia and Herzegovina had no right to monetary compensation and that the mere declaration of Serbia's responsibility for not preventing the genocide in Srebrenica was in itself appropriate satisfaction. This article criticizes the decision of the ICJ not to accord monetary compensation, which was based on the lack of a causal nexus between the failure by Serbia to comply with its obligation to prevent genocide and the death of 7000 men in Srebrenica. It argues that the Court should have shifted the burden of proof and should have required Serbia to show that even if the institutions of the then Federal Republic of Yugoslavia (FRY) had taken appropriate measures, the Bosnian Serbs would nonetheless have completed their criminal plans. Concerning the issue of satisfaction, the article notes that the ICJ could have ordered symbolic monetary damages, by taking into account international practice and the request by the Applicant. In addition, it observes that international tribunals enjoy a large measure of discretion in awarding satisfaction and that, in making a determination on the most appropriate form of satisfaction the genocidal tragedy itself should not have been left aside. In this connection, the ICJ could have found guidance in the case law of the European Court of Human Rights, which in some instances has taken into account the degree of pain and suffering endured by the victims. Finally, with regard to guarantees and assurances of non-repetition, the article notes that these do not constitute a form of reparation, but rather should be considered as an expression of the obligation to comply with the primary rule incumbent upon a state in particular situations. The article agrees with the Court's conclusion that an assessment of the prevailing situation in Bosnia and Herzegovina did not provide any clues to the presence of an actual threat to the physical integrity of the Muslim population. However, it contends that the reluctance by Serbia to arrest and transfer to the ICTY General Mladic, more than three months after the delivery of the judgment of the ICJ and the issuance of a specific order in this regard, unequivocally demonstrates the strong ties of solidarity between the Serbian leadership in Serbia and in the Republika Srpska. Serbia is making itself an ex post accomplice of genocide, with far-reaching consequences for its envisaged integration into the European Union.