The judgment of the United Nations' highest court that Serbia failed to prevent the slaughter of Bosnian Muslims at Srebrenica in July 1995 was greeted with much bitterness by both Bosnian Muslims and Serbs yesterday. For the Bosnian victims of the worst massacre on European soil since the second world war, the acquittal of Serbia on a charge of genocide was a hard pill to swallow. For Serbia's pro-western president, Boris Tadic, the finding that called modern Serbia to account for war crimes and genocide committed by the regime of Slobodan Milosevic was also hard to take. But yesterday's judgment should still rank as an important landmark in international law.
It was always going to be difficult to prove state responsibility for genocide. For although Serbia supported and financed the Bosnian Serbs, the court would have had to find that Serbia had effective control over the Bosnian army and the paramilitary units that carried out the massacre. There was not enough evidence to support this. The court also rejected the argument that the pattern of atrocities in a war stoked by Serb nationalism and armed by Serb weapons amounted to responsibility for genocide. Tens of thousands were killed and up to two million people uprooted by widespread ethnic cleansing undertaken by the Bosnian Serbs, mainly in 1992. But this again did not constitute genocide. The court also rejected Bosnia's claim for reparations, which would have run into billions of dollars.
But for all those flaws, the ruling of the international court of justice was significant. First, it confirmed that a genocide had taken place in Srebrenica. Second, the judges found by a convincing majority (13-2) that Serbia had the power to foresee and prevent the slaughter, and had failed to use it. Third, they found that Serbia failed to comply with its obligations to punish those who carried out the genocide, either by putting the generals on trial themselves or by handing them over to the international criminal tribunal for the former Yugoslavia. Further, Serbia is continuing to fail to live up to its international responsibilities by not handing over the military architect of the massacre, Ratko Mladic, who has long been the most wanted man in Europe. The 64-year-old general has evaded capture for 12 years, mostly with the help of his former troops and elements of the security services who see him as a national hero.
Serb nationalists have dismissed the international criminal tribunal in the Hague as a tool of the west, set up after the civil war. But they will find it harder to dismiss a UN court that has been established for more than 60 years and is a civil one that adjudicates cases between states, not individuals. Mr Tadic seized on this fact to urge his countrymen to hand over Mladic to the war-crimes tribunal in the Hague. The message may be painful, but it is clear. The only way Serbs are going to be able to rebuild their war-torn country will be by joining the European Union, and entry comes with a specific price tag.
But the implications of yesterday's judgment go further afield. This is the first time since 1948, when the Genocide convention came into being, that an entire nation has been held to judicial account for genocide. An important precedent has been established: where a state is in a position to exercise a positive influence or de facto authority to stop genocide taking place, it is under a positive obligation to do so. The same principle could be applied to Sudan's responsibility for ethnic cleansing in Darfur. The hearing was a piece of unfinished business left over from the trial of Milosevic, who died before judgment could be delivered on him. If yesterday's ruling, however imperfect, clarifies the definition of genocide and the responsibility of states to prevent it, it will have performed a valuable service in bolstering international law.