The UN’s highest court is preparing to rule on whether the nation of Serbia was complicit in the 1990 slaughter and displacement of Bosnian Muslims. The trial is complex for several reasons, but perhaps the most daunting of arguments is whether the court has jurisdiction to hand down a ruling.
The key is whether the judges are persuaded that the Bosnian Serbs were under the control of the Serb government – an issue that might have been resolved had the Milosevic trial reached its conclusion. It was stopped when he died, and the massive amount of evidence it heard is now legally worthless.
The Yugoslav tribunal “has not been successful in establishing a proven link between the paramilitaries who did the killing and the government in Belgrade,” said Johannes Houwink ten Cate, a historian at the Netherlands War Documentation Centre and a professor of genocide studies.
By contrast, he said, the Nuremberg trial of Nazi war criminals found a clear chain of command to the Holocaust.
The Bosnia-Serbia dispute is not a criminal case, and the standards of proof are lower than required for a criminal conviction. It is enough that a majority of judges find on a “balance of probabilities” that Serbia was responsible.
However, before the judges even address Serbian responsibility, they must first rule on whether they have jurisdiction – a tricky question on which the same court has contradicted itself in the past.
Serbia argues it was not a UN member when the murders happened, and therefore cannot be judged by the UN court. Yugoslavia’s UN membership was suspended in 1992, and Belgrade was only readmitted as Serbia and Montenegro in 2001. Montenegro split from Serbia last year, and has asked the court to remove its name from the case.
As much of international law has yet to be written, it will be interesting to follow the court’s ruling, as it will likely have huge ramifications for future trials. The most immediate of which is the beleaguered Darfur region of Sudan, where 1.5 million displaced people will hopefully one day have their day in court.