One of the first obstacles in achieving the balance comes from the very word “genocide” and its connotations. We must be clear as to what genocide is, because in failing to know the crime, we are bound to misinterpret the repercussions of punishment. It has been said that the conduct behind genocide and other serious crimes “are so similar as to present serious analytical difficulties.” Dermott Groome, Adjudicating Genocide, 31 Fordham Int’l L.J. 911, 918 (2008). The Genocide Convention describes it as an act with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. See Art. II of the Convention on the Prevention and Punishment of the Crime of Genocide, 1948. In the case of Serbia, ICJ refused to infer genocide from consistent pattern of conduct. The court said that the necessary “specific intent” to commit genocide was missing, some kind of planned approach of annihilation. See Application on the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont) (Int’l Ct. Justice Feb. 26, 2007). In conventional use of the word, genocide was synonymous with ethnic cleansing, various war atrocities and other crimes against humanity. Courts must assure when attributing collective state guilt not to confuse these. The consequences of not doing so could be dire, as a February 2007 The Economist article reminds us with a single sentence. The article pointed out that as a result of the ICJ’s ruling “Serbia is not a genocidal nation.” It is the very overreach of this word in the media and the impact it creates when placed in an adjective form next to a word “nation,” that makes it clear how careful we need to be in its attribution.

Even if we are clear on the crime, finding a state guilty of genocide is always going to lead to “overcapture” in its “sentencing” phase. Even in the most carefully orchestrated balancing acts aiming at the government only, it will be hard to prevent the innocent ones from being captured in the same net, either directly or as an unintended consequence. Even if the government is found to be guilty, the question remains, as Drumbl suggests, who should pay for the damages. Is it the government employees, or voters who elected such “genocidal” government? And how do we differentiate from those who voted knowing the genocidal intent and those who were fooled by the state-controlled media in thinking that the government acts are those of self-defense? See Groome, 31 Fordham Int’l L.J. at 920. Where one can point out to individuals, one should, as ICJ still suggests despite its ruling that states can be held liable. It is so because the states are comprised of acts and intents of individuals. The problem is also, of course, identifying just what this “specific intent” is when it comes to states and who needs to share such intent. One will always be able to find an individual to lay the blame on, be it the country’s president or someone else. This invariably leads us back to an individual guilt.

Lastly, we must ask ourselves what other punishment purpose this collective guilt should serve. If Serbia had been found guilty of genocide, would the Serbs react to their collective guilt like the Germans did after the Second World War, or like they did after the First World War? If the goal is, in addition to compensating Bosnia materially and emotionally, for the Serbian people to repent and face what was done in their name, the repentance is not guaranteed. Although the criminal justice largely relies on retribution, it is a far cry from being just that. In this case, one of the two main purposes the guilty verdict would serve would have been to face Serbia with its crimes and have it repent – some sort of collective rehabilitation. Although a lofty purpose, it has a strong chance of backfiring, as evident in the sentiment of German people after the World War I. We can predict how an individual will react to punishment and we can contain his or her acts of revenge, but what do we know of collective reaction and how can we contain the undesired one? The judgment should not be made in blind disregard of public policy and repercussions of punishment.

Judge Shi, arguing against a state’s liability for genocide, said the Genocide Convention should remain an instrument for the criminal responsibility of an individual. See Joint Declarations of Judges Shi and Vereshchetin from July 1996 http://www.icj-cij.org/docket/files/91/7355.pdf. In finding the states liable for genocide, ICJ made a great step forward, but in a direction in which it cannot proceed. The court stumbled upon insurmountable obstacles like the ones described here and also many procedural ones (for discussion on procedural and other obstacles see Groome, 31 Fordham Int’l L.J. 911) The practical difficulties of collective guilt and the repercussions surrounding this “crime of all crimes” demand a high burden of proof in cases against states and, as it appears from the ICJ ruling, nothing short of a written proof will do. The ICJ practically asks for direct proof that will not be easily replaced even by the most compelling circumstantial evidence. The court asks for a jack-pot. Rightly so. But isn’t this high ceiling practically impossible to reach? And if so, haven’t we just circled back to individual guilt?

It does not seem very fair to require that all of the citizens of a country pay for damages arising from the actions of a few people. I find it very unlikely that all of the people of Serbia acted with the specific intent to destroy groups based on their ethnicity or religion. I also find it very unlikely that all of the people of Serbia would share an intent to participate in a common plan eventually leading to an act of genocide. Consequently, I am not sure that it would be fair to require the Serbian people to carry the burden of paying these damages.

As for the amount of damages to be awarded, I am not sure how to determine what damages would be appropriate in the light of the genocide at Srebrenica.

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