Justice and Genocide in Bosnia: An Unbridgeable Gap Between Academe and Law?

Abstract

The 1992-95 war in Bosnia was the worst war on the European continent since WWII. The massive and systematic human rights violations were the worst in Europe since the Holocaust. This article proposes, based on a provisional review of non-legal, mainly social science and humanities literature on the Yugoslav crisis, and on a focused analysis of genocide jurisprudence, that there is a gulf between, on the one hand, academic interpretations of these human rights violations as constituting genocide – with some notable exceptions - and on the other, judicial decisions regarding cases brought at the International Criminal Tribunal for the former Yugoslavia (ICTY) (and partly the International Criminal Tribunal for Rwanda - ICTR). A key issue in the determination of genocide has been where and when such crimes were committed. There is provisional agreement between academe and the law on the case of the massacres at Srebrenica amounting to genocide, but the earlier period of the war, in the spring/summer of 1992 in eastern and northern Bosnia, often seen by analysts as the key period of systematic and massive violence constituting genocide, has been largely avoided or dismissed by the international judicial effort. By examining the key case of Jelisic, this article highlights in detail some issues of interpretation or misinterpretation in the evolving jurisprudence on genocide.