There was an earlier genocide case dealing with the wars in the former Yugoslavia. It was filed by Bosnia and Herzegovina against Serbia and Montenegro and the case ended in 2007. Serbia and Montenegro was then found in breach of the Genocide Convention by failing to prevent the massacres in Srebrenica.   

While the proceedings were still going on in The Hague, not a lot of useful, constructive debate was ongoing between former warring parties that still occasionally experience tensions. There was no meaningful fact-based discussion that followed the ruling both within the societies in question but also between them. It is clear, as in the cases conducted in front of the ICTY, complex legal proceedings are difficult to bring closer to the average citizen and institutions struggle with outreach. Communicating facts about the proceedings and fighting misconceptions often fails when smothered by politicized nationalist rhetoric in public space. The level of knowledge about law, jurisdiction and jurisprudence is low and citizens are easily led to believe things that are simply not true. The way most of the media reported on this and ICTY trials as well was either incompetent or disingenuous. In both cases, there is reason to worry.    

One potential benefit of the proceedings may be developing jurisprudence on genocide at the International Court of Justice. The Court has been in existence for decades but in its history it has only once found genocide has been committed and that was in Srebrenica.  Having cases in front of judges helps define concepts, establish standards and brings clarity to what genocide is and what is required for proving it in court. Proceedings determining violations of the Genocide Convention can be beneficial to victims and societies at large. Facts can be uncovered and that is valuable for our understanding of the conflict, particularly if there is no criminal court and no truth commission making those determinations. In this particular case however, it was clear that there likely would not be a genocide finding. Moreover, factual findings have been made by the ICTY and civil society organizations throughout the region are pushing for a commission tasked with establishing facts. The politics similar to those that drove this case for so many years can now be seen in Kosovo, where politicians are speaking about bringing their own genocide case against Serbia to the ICJ. That initiative seems like nothing more than a thinly veiled attempt to divert attention from another court that should be established soon, dealing with the crimes by the Kosovo Liberation Army. Again, it seems to be more about politics and less about justice.

The ICJ was called upon to decide only if either one of the countries have violated the 1948 Genocide Convention. That however is not necessarily what the media reported. The headlines in both Croatia and Serbia were full of the word ‘aggression’ even though, as any informed reader would know, the crime of aggression has nothing to do with these proceedings. The entire process was abused by politicians in order to further entrench the monolithic, ethno-centric interpretations of the past in their respective societies, in which each side present itself as a victim, one that was only defending itself. For both countries, foundational myths were at stake.

Supporters of judicial efforts to deal with mass violence want these processes to assist reconciliation. That is possible (albeit difficult) but what is necessary is adequate, informed and independent reporting by the media as well as political maturity of the leaders. In both respects, both Croatia and Serbia have largely failed. Brief empty statements were made after the judgment about focusing on the future, but it was cloaked in nationalistic rhetoric. Instead of focusing on what was done to them, which is what they have been doing for the past 20 years, consistently treating their own victimhood as greater than that of others, the political elites and the media should focus on what was done by ‘their’ state in the past. For a stable future, it would be useful for the populations to hear, for a change, not what they did to us, but what we did to them. A little perspective and empathy could go a long way in normalizing relations in the former Yugoslavia.