I finished reading the ICJ's massive judgment in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Feb. 26, 2007) just as PBS aired Bill Moyer's "Buying the War." The latter, a devastating critique of how most U.S. journalists failed to critically examine claims for going to war in Iraq in the months preceding March 2003, influenced my views of the former. Moyer showed how our mainstream media gave a free pass to claims that Hussein had WMDs and ties to 9/11. He made a compelling case that network anchors, prominent journalists, and pundits relied on what officials and official- sanctioned sources told them while only a couple of enterprising and truly investigative journalists bothered to consult knowledgeable experts with less of an axe to grind than those in our government or in Iraqi defector circles. Only a few journalists honored the tradition of the late David Halberstam by challenging tales of aluminum tubes being imported into Iraq for nuclear bombs or alleged meetings in Tehran with 9/11 hijacker Mohammed Atta. It appears that by failing to engage in their own factfinding, some of the best and the brightest of our journalists helped to sell a war to the American people.

Regretfully, I believe that the ICJ judges who issued the majority judgment in the Bosnia case last February also failed to engage in independent fact-finding. This failing, and not merely tenuous legal determinations along the way (including with respect to jurisdiction), undermines a decision that will, I suspect, be seen as one of the Court's greatest self-inflicted wounds, especially by those who expected, after 14 years of litigation, a definitive statement on what occurred in Bosnia during Milosevic's rule. Even those who might be inclined to accept the central conclusions on the merits reached by the Court - that except for the massacre at Srebrenica, the mass killings of Bosnian Muslins after the breakup of the former Yugoslavia did not constitute genocide, that Serbia was not responsible for Srebrenica, and was only guilty of failing to prevent and to punish genocide - are not likely to be persuaded by an opinion whose factual underpinnings are so weakly supported.

As is usual in such cases, the Court's failings on fact finding are difficult to disentangle from some of its legal conclusions. The Court's definition of the applicable burden of proof, addressed in a few vague sentences, merges the requisites needed to prove a criminal charge with those needed to prove wrongful acts under the rules of state responsibility. While the Court determines that charging a state with genocide requires proof that approximates the 'beyond the reasonable doubt' standard of the criminal law and not a balance of probabilities (see paras. 209-10), it otherwise proceeds to treat this case as if it were a typical instance where one state accuses another of a routine violation of state responsibility (see, e.g., paras. 204 and 379). This curious mélange is not likely to please either experts in international criminal law or the Articles of State Responsibility. Certainly those looking for a serious consideration of whether the rules of attribution with respect to genocide might be a lex specialis regime not subject to the ordinary rules of state responsibility will be disappointed.

While the Court purports to apply relevant ICTY caselaw, it is not always faithful to either the letter or the spirit of these cases.While the Court sticks to its "effective control" test for attribution from the Nicaragua Case, it does not explain why the "overall control" test established in the ICTY's Tadiç judgment is inappropriate - especially where the Court is otherwise drawing from the ad hoc tribunals' jurisprudence - except to say that the Tadiç test would broaden a state's responsibility (see para. 406). The Court also ignores those tribunals' rich jurisprudence when it comes to the use of inference to determine genocidal intent or their recourse to joint criminal enterprise or aiding and abetting. As Judges Al- Kahasawneh and Keith point out in their respective dissents, these failings make the Court's findings that there was no Serbian "conspiracy" or "complicity" in genocide less than compelling given some of the incriminating Serbian government documents that came to light in the course of the case (never mind those that the Court was never permitted to see in their entirety).

The majority judgment is also less convincing than it should be because it does not acknowledge that attributing genocidal acts to an abstract entity is necessarily a more difficult proposition than is charging a single individual with the crime. If, as the Court acknowledges (at paras. 181-182), it should be possible to prove that a state is complicit in genocide even if none of its leaders have been convicted of that crime, one is entitled to expect a practicable, and not an impossible, standard and burden of proof. Instead, the majority fails to explain why it is fair or just to require Bosnia to prove (1) that Serbia exercised effective control over the non-state actors engaged in the killings at Srebrenica and (2) that on the day those killings occurred Serbian officials shared the same genocidal intent as the killers -- when such evidence would appear to be in the control of Serbia and the Court extracts only redacted government documents from that state. Compare paras. 204-206. As Judge Al-Khasawneh argues in dissent, in comparable circumstances, other adjudicators have shifted the burden of proof or drawn adverse inferences against the party in control of relevant evidence who refuses to supply it.[1]

But the most unsatisfactory parts of the Court's opinion are precisely those of most interest to historians, namely paragraphs 231- 379, determining the facts. On the surface, this section, which constitutes the bulk of the majority's opinion, is an impressive enumeration of targeted or mass killings, maltreatment of prisoners, expulsions, rapes, and numerous other abuses. The Court surveys in detail the horrors that occurred in distinct regions, detention camps, and in Srebrenica. Yet, while the Court accepts that it "must make its own determination of the facts" (para. 212), nearly everything in this section is second-hand, drawn from the reports of others or the decisions rendered by the ICTY.

While there is nothing wrong in itself with reliance on fact finding by others, a convincing judicial opinion that purports to apply facts to a novel legal dispute that has not been addressed or resolved anywhere else - that requires determining whether Serbia is responsible for these acts in violation of the Genocide Convention - demands more. It demands active engagement with official reports written for other purposes or with ICTY decisions driven by other imperatives, not a timid readiness to accept these accounts and go no further -- even when these sources do not purport to resolve the actual points at issue in this case. Missing from the Bosnia proceedings - as with respect to other ICJ fact-finding that has come under fire[2] - - is a fact-finding process that generates the kind of confidence that is generated either by civilian investigatory judges or common law adversarial processes, including the energetic cross examination of witnesses.

Worse still, the ICJ majority apparently relied on misleading (not to say irrelevant) secondary evidence, however "official." What are we to make of judicial "fact-finding" that relies on genocide charges being withdrawn in some ICTY cases in light of some plea agreements, on charges being reduced to "aiding and abetting," on the absence of genocide convictions because some perpetrators (e.g., Karadzv ic´ and Mladic´)[3] were not found or had died (paras. 374-75)? The Court's conclusion that these actions by ICTY prosecutors are probative of the absence of a concerted genocidal plan is nothing short of astonishing. Under the circumstances, readers of the Court's opinion are not likely to be persuaded by its manifold factual findings, every one of which (with the exception of the massacre at Srebrenica) culminates in a cursory sentence indicating that while grievous acts occurred which may constitute other crimes, the Court "finds no proof of the specific intent" needed.

Just like some U.S. journalists, the majority of the ICJ's judges appear in need of a basic course in Fact-Finding 101.

José E. Alvarez

Footnotes