Some expectations that has not been fulfilled by the Judgements:
It should also be noted that the judgment did not satisfy all expectations. One of the lingering expectations was to get an answer to the question of which nation is the genocidal nation, and which one is the good (the victim) nation. This – obviously irrational - expectation is actually a remnant of the frenzy that permeated the Balkan conflicts in the early nineties. The driving force of the brutal conflict was nationalism. The juxtaposed opponents were ethnic groups. The framework offered by the ICJ is not a framework for ethnic confrontation. The parties to the dispute are states – and states are often multiethnic in nature. Some expectations disregarded this simple fact.
Apart from irrational and feverish expectations, the question of whether disputes before the ICJ represented the right track in facing the past has also been raised. This question became particularly germane in the Bosnian case. Here, the ICTY established that the Army of the Bosnian Serb Republic (Republika Srpska) actually committed genocide in Srebrenica (but this genocide was not ascribed to Serbia and Montenegro). The Republika Srpska is an entity within the state of Bosnia-Herzegovina. Therefore, before the ICJ, the Bosnian Serbs were on the side of the plaintiff/applicant, that is, on the side of the victim. Hence, the dividing lines in the legal dispute did not reflect the dividing lines of the conflict. Furthermore, states that appeared before the ICJ were new states shaped during the conflict, and this fact made the issue of jurisdiction most complex. Therefore, decisions on jurisdiction in both cases (just as in the NATO case) have remained controversial. The judgment of February 3, 2015 also dealt with one jurisdictional issue. Unlike decisions on the merits rendered unanimously (or almost unanimously), the decision on the remaining jurisdictional issue reflected a deeper divide. The vote was 11:6, and the President of the Court joined the minority. Hence, it remained an open question whether a dispute between new states shaped during the conflict was the right track, and whether it was necessary to pursue this track in addition to that of individual responsibility.
I would also like to mention another expectation that was not fully satisfied, namely the expectation to get a full picture of what happened during the conflict. This expectation is more rational – unlike the one aiming to carve in stone which nation is the hero and which nation is the villain. The jurisdictional restrictions did not allow a full picture to be shaped. Nevertheless, many events were described and qualified, and may represent a point of reference in turning away from legends and exaltations and moving towards facts. Historians and court proceedings directed towards individuals may add more clarity.
About a quarter of a century has passed since the conflict in Croatia. One should hope that a chapter was closed with the judgment of February 3, 2015. New generations will hopefully have a better chance to see individual human beings in their neighbors, rather than formulae. BY Tibor Barady, Professor of International Law, Central European University.
