As discussed in my recent interview with law professor Diane Orentlicher, the International Court of Justice in The Hague in February handed down its decision in a long-pending case in which the government of Bosnia accused the government of Serbia of responsibility for genocide during the 1992-1995 war in Bosnia. I won't rehash the details again, but Diane observed that the ICJ's judgment absolving the Serbian government for genocide or complicity in genocide was "perplexing," characterized by the recounting of a large amount of evidence but relatively little legal analysis of that evidence's significance. Rather the Court basically relied on decisions made by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the context of individual criminal cases. Now, a lengthy story in Sunday's New York Times focuses on the fact that the ICJ did not have before it potentially significant records concerning high level deliberations held during the war in the Serbian capital of Belgrade. Serbian authorities specifically withheld this evidence from the ICJ, which refused Bosnian requests that it demand the information be turned over:

Lawyers interviewed in The Hague and Belgrade said that the outcome might well have been different had the International Court of Justice pressed for access to the full archives, and legal scholars and human rights groups said it was deeply troubling that the judges did not subpoena the documents directly from Serbia. . . . “It’s a question that nags loudly,” Diane Orentlicher, a law professor at American University in Washington, said recently in The Hague. “Why didn’t the court request the full documents? The fact that they were blacked out clearly implies these passages would have made a difference.”

A crucial issue in the ICJ case was the amount of control that Belgrade exercised over the Bosnian Serbs, and lawyers who have seen the withheld evidence told the Times that it "reveals in new and vivid detail how Belgrade financed and supplied the war in Bosnia, and how the Bosnian Serb army, though officially separate after 1992, remained virtually an extension of the Yugoslav Army. They said the archives showed in verbatim records and summaries of meetings that Serbian forces, including secret police, played a role in the takeover of Srebrenica and in the preparation of the massacre there."

One explanation offered by observers for the Court's refusal to ask for the evidence is that it did not want to be embarrassed by a Serbian refusal to provide the information. It is difficult to see how Serbian defiance would have been more embarrassing for the Court than the current situation, where it is exposed as having not even tried to obtain highly relevant information before rendering judgment on state responsibility for mass murder.

The, shall we say, elliptical legal reasoning of the ICJ's decision was already destined to make even more vexing the difficult question of what constitutes genocide as defined in international law. Even worse to learn that the judgment was rendered after a conscious decision not to obtain all the relevant facts.

(Photo of Peace Palace in The Hague, seat of the ICJ.)