Of all the possible judgments available to the International Court of Justice, the one it delivered yesterday is the most likely to encourage peace between Bosnia and Serbia. The court, throughout this landmark case, has said that it would be guided entirely by law and not by the explosive politics of the region. Those braced for turmoil will be relieved that the verdict gives something to either side and disappoints them equally.

The court held that Serbia had not committed genocide during the 1990s war, but that it had violated the obligation to prevent genocide in the 1995 massacre in Srebrenica. It ruled that Serbia should immediately hand over General Ratko Mladic, indicted for genocide, for trial by the International Criminal Tribunal for the former Yugoslavia, but also that Serbia did not have to pay compensation to Bosnia.

Provided that Serbia does, indeed, hand over Mladic, this judgment will allow Serbia’s integration into Europe, glacial though that process is, while giving Bosnia formal recognition of the atrocities it suffered. The admission by Boris Tadic, the Serbian President, that his country faced “dramatic consequences” if it failed to comply is welcome.

Those are the pragmatic implications; the more difficult question is whether this case has served a useful purpose. The case, brought by Bosnia against Serbia, was the first time that a state was held to judicial account for genocide. The ICJ, set up 61 years ago to hear disputes between countries, has been more accustomed to ruling on maritime or boundary disagreements. In humanitarian law, it has so far been overshadowed by courts that try individuals for crimes, such as the International Criminal Court and the ad-hoc war crimes tribunals for Yugoslavia and Rwanda.

Those who have criticised the principle of bringing a war crimes case against a state have argued that the notion of state responsibility is empty. Establishing genocide, for example, generally rests on showing intention, but people, not states, have intentions, they argue. Others add that the principle offends the trend of half a century towards an emphasis on individual responsibility and rights, and rests on a discarded notion of collective guilt.

The counter-argument holds that the machinery of states should be held responsible, as well as individuals, because people are represented by their state. Others add that to hold only a few officials responsible casts the net too narrowly, and also that if the state is held responsible then it doesn’t mean that its people are collectively guilty, but that they are collectively responsible, for reparations, for example.

The court did side firmly with the principle that “states can be held responsible for genocide”, but it set the bar for demonstrating responsibility very high. Although it ruled that the Srebrenica massacre amounted to genocide, it did not uphold Bosnia’s claims that Serbia was responsible. Bosnia had failed to show that Serbia intended this, it said; or that Serbia controlled the Bosnian Serb army and paramilitary units that carried out the massacre. It also rejected Bosnia’s argument that even if a line of control could not be shown, the pattern of atrocities, helped by Serbian weapons and money, was tantamount to Serbian responsibility.

A sane and useful ruling, then, and whatever the court says about the purity of its motivation, one that is, in pragmatic terms, likely to be the happiest outcome.

Ghost town

— Srebrenica was a Muslim enclave in Serb-held territory

— In 1991 it was 75% Muslim, 25% Serb

— Declared UN “safe area” in April 1993

— 600 Dutch peacekeepers were defending the town when Bosnian Serb forces massed near by in April 1995

— They moved in and killed more than 8,000 Muslims over three days in July

Source: Times archives

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