“It is not only what we do, but also what we do not do, for which we are accountable.” Molière
The massacre of 8,000 Muslim Bosnian men at Srebrenica in July 1995 was genocide, the vilest crime against humanity in the international legal statute book. Of that there can be no doubt. Who is accountable for it, however, is slightly less clear. This week’s landmark Dutch ruling adds another dimension to the issue, one that clouds, not clarifies, the matter.
At the individual level, there have been a number of convictions and prosecutions at the International Criminal Tribunal for the Former Yugoslavia for the slaughter committed. Krtić and Blagojević were convicted, while several others, including Milošević, Karadžić and Mladić, have been accused, charged, and/or prosecuted for their involvement. National courts in Serbia, Bosnia and elsewhere have also carried out trials of those responsible, many for individual acts of murder, rather than genocide. The number of people actually involved and responsible for these obscene crimes is, undoubtedly, much larger than those prosecuted; there is rumoured to be a list held in Banja Luka with over 25,000 names on it, 800 or so kept secret. This failure of humanity, it seems, had many fathers.
Above the level of the individual, though, how has accountability been allocated?
In 1999, then-Secretary-General Kofi Annan apportioned blame on the ‘international community’ and the senior leadership of the UN for failing to protect the people of Srebrenica. He re-iterated this in 2005 on the 10th anniversary of the massacre, repeating that the UN was partially to blame. In 2001, the parliament of France claimed that France had failed in its duties as a member of the Security Council and had not done enough to prevent the tragedy. The governments of Serbia and Republika Srpska have oscillated, sometimes appearing to take responsibility (by apologizing), but often pointing out that the massacre was the work of individuals, not of the state itself.
Since Nuremberg the idea that an individual can escape responsibility by claiming to have been ‘simply following orders’ has been repeatedly shown to be an insufficient defence. However, that is not to say that it does not continue to form the basis for attempts to side-step accountability. Duch, the notorious commandant and torturer-in-chief of the Khmer Rouge’s S21 detention facility, used it vociferously at both his trial and his appeal before the Extraordinary Chambers in the Courts of Cambodia (ECCC).
What is less clear, though, is the opposite relationship: at what threshold do we hold accountable the organisation for the crimes of its members? The principle of command, or superior, responsibility can hold commanders responsible for not doing enough to prevent or stop war crimes being committed by their subordinates, but applications of the principle are not as straightforward as one might expect, as rulings since 1945 have repeatedly shown.
Even so, the notion of superior responsibility merely moves the level of individual accountability up a notch or two. What about the collective, especially the state? The admissions and apologies mentioned above are all fine and good, and some of them are probably even genuinely felt, but they are voluntary actions. They come with no penalties or sanctions. They are not the judgments or adjudications of others, against legal or normative standards, but, rather, internally determined. Some of the apologies, such as the one from the Republika Srpska, for instance, do not mention the word ‘genocide’, acknowledging only that 1000s of people were illegally killed.
It is interesting to note that despite several international and national prosecutions (which have led to some convictions) indicating that a genocide did take place and that individuals were responsible, when Serbia (and Montenegro) was taken to the International Court of Justice by Bosnia for the genocide, the state was not found to be culpable.
The ICJ ruled that states, in principle, can be held responsible for genocide. It also ruled that genocide did occur in at least one instance during the Bosnian war — at Srebrenica, when some 8,000 Muslim men and boys were massacred in 1995, at the hands of the Bosnian Serb Army (VRS). The court also found “conclusive evidence” that numerous other killings and massacres of Muslims occurred in other parts of Bosnia. But crucially, the ICJ found that these atrocities were not enough to prove the “necessary specific intent” to liquidate an entire group that is needed for a genocide conviction. In other words, despite evidence of atrocities and ethnic cleansing in Bosnia, as well as evidence that the Bosnian Serb Army received logistical and military assistance from Belgrade, Bosnia failed to prove that Serbia’s leaders at the time set out to physically liquidate Bosnia’s Muslims and acted to fulfill this plan. (Source)
Republika Srpska, a constituent entity of Bosnia itself, has never been taken to the ICJ to account for the actions of the Bosnia Serb Army during the war, including the genocide at Srebrenica, despite several of its military commanders being prosecuted and convicted for war crimes.
This makes an incredible (and somewhat perverse) contrast with the Netherlands. On the basis that it was their soldiers, working under a UN mandate (but ultimately remaining, inescapably, under Dutch national or full command) that did not prevent, and indeed in some way facilitated, the massacre, the Dutch cabinet resigned on 16 April 2002. The government felt that it was responsible not only for the battalion’s performance, but for deploying them in the first place and maintaining them there despite problems with the UN mandate. While this may also be seen as an ‘internal and voluntary’ step, it was one with real consequences and conforms with the highest principles of responsible government, not to mention collective responsibility.
The Netherlands last week went a step further. A Dutch court found that the government of the Netherlands is responsible for the deaths of at least 300 of the victims at Srebrenica because its “peacekeeping force should have known that the Muslims were likely to be killed by the Serbs” and, therefore, should not have ‘handed them over’. Here we have a legal adjudication formally declaring that a state is responsible for a part of the genocide. Financial compensation to the victims of the families will no doubt follow. The fact that the judgment didn’t come from an external body, but rather a domestic court, is all the more incredible, proving that the rule of law can and does prevail in some liberal democracies.
Back to Bosnia via Versailles
A great deal of the popular attention paid to international law over the past two decades has been on individual accountability, at the level of soldiers (in the cases of ICTY and ICTR) and of heads of state (in the cases of the Special Court for Sierra Leone and the ICC). While the ICJ ‘Genocide’ ruling in the case of Serbia in 2007 was in important first step in the process that may see states held accountable for the actions of those working in their name, it was largely unsatisfying. The actions of the Dutch government and judiciary before and after it demonstrate how at odds international law, common sense, politics, and public opinion can be.
Of course, it didn’t used to be this way. There is plenty of precedent for collective guilt. It just fell out of fashion. The First World War ended with the Treaty of Versailles, Article 231 of which unambiguously stated:
The Allied and Associated Governments affirm and Germany accepts the responsibility of Germany and her allies for causing all the loss and damage to which the Allied and Associated Governments and their nationals have been subjected as a consequence of the war imposed upon them by the aggression of Germany and her allies.
(Along with accepting responsibility for the war, the German state was forced to pay reparations, the final payment of which took place on 3 October 2010.)
From the outset, the notion of war guilt was controversial and Hitler’s objections to it were warmly received in many corners, including by some in the West. Still, variations on war guilt, in the form of reparations, were imposed on several countries after the Second World War, and on Iraq after the first Gulf War.
Still, we see a contemporary reluctance to look at collective or national accountability. Indeed the the crime of ‘aggression’ is now an individual matter under the ICC statutes.
How will the circle be squared? Where is the balance between the individual and the state when it comes to war crimes? There are no clear answers. The words of one legal scholar (Beatrice I. Bonafè) sum up the current debate thus:
It is a settled principle that states incur international responsibility when they breach international obligations, and all the more so when these breaches are particularly serious, that is, when they amount to international crimes. On the other hand, today it is undisputed that international law provides for the criminal responsibility of those individuals who commit international crimes. What is much more uncertain is the relationship between these two regimes of international responsibility, that is, the connections between state and individual responsibility when the same or analogous conduct, performed respectively by individuals and by states, gives rise to both individual and state crimes.
In the meantime, the families and survivors of Srebrenica continue to search for justice, and only The Netherlands has meaningfully ‘stepped up’ to accept their part in the tragedy. Sadly, there are likely to be further chapters of this debate, as there is no sign of individual or collective atrocity ending anytime soon, whether in Gaza, Syria, Iraq, the Ukraine, Burma, or elsewhere.