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Timid JusticeThe ICJ should have been harder on Serbia.

By David LubanPosted Wednesday, Feb. 28, 2007, at 4:56 PM ET

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Dahlia Lithwick faulted international jurisprudence for overlooking the interests of individual states, while Ariel N. Lavinbuk examined a peculiar instance of multistate court proceedings: Mexican and Canadian judges interpreting U.S. trade law. Earlier, Anne Applebaum questioned the viability of an international criminal court. Chris Suellentrop delineated the difference between genocide and crimes against humanity.

Judge Awn Shawkat Al-Khasawneh of Jordan dissented and got it right. He criticized the ICJ for treating the evidence in a piecemeal, disconnected, myopic way, so that overwhelming evidence of Serbian support for ethnic cleansing accomplished through ethnic killings didn't constitute specific intent to commit genocide or even complicity in genocide. This is like an American court exonerating a financial backer of the Ku Klux Klan from a charge of complicity in a hate crime, even though he bought the guns, ropes, gasoline, and bed sheets. Doesn't it seem pretty clear that those purchases are evidence of complicity in a hate crime the Klan then commits?

The same anti-Muslim atrocities happened over and over again in the camps. Intent can be inferred from the pattern, and given Serbian government support for the VRS, the pattern should suffice to support a charge of state complicity in genocide. That was what Bosnia argued. Without a smoking-gun document or its equivalent, consistent patterns of action are the best evidence we have of official plans and intentions. In a prosecution of an individual, it might be impossible to infer specific intent to commit genocide from the fact that an atrocity was committed. But when we look at what many actors did and note the consistency with which they did it, the evidence of a genocidal plan becomes stronger and stronger. This is Judge Al-Khasawneh's argument.

There is a silver lining in the majority opinion. But for the most part, the ICJ's decision is evidence of its timidity. Casting a shadow is Nicaragua v. United States, the 1986 case in which Nicaragua sued the United States over responsibility for the Contras. The United States objected to the ICJ's jurisdiction, and when it lost that battle—and then lost the case on the merits—it stopped participating and pulled out of the ICJ altogether. The lesson is clear: Bold ICJ decisions can have awkward repercussions. The New York Times reports that this week's ruling "hews close to the political wishes of Western countries that want to pull Serbia into a wider Western European community." ICJ President Rosalyn Higgins denies "that the court has been seeking a political compromise." But it's hard not to suspect that the ICJ did its utmost to avoid pinning the world's most inflammatory label on Serbia. It is still a place, after all, where powerful nationalists insist that the Srebrenica massacre never happened and that international prosecutions are a Western plot.

A version of this argument is also posted on the blog Balkinization.