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Article Excerpt
CONTENTS
I Introduction and Background to the Case II The Relief Requested and the Proceedings Prior to the Judgment on the Merits III The Court's Judgment on the Merits: The Jurisdictional Question IV Genocide and State Responsibility V Genocide in Bosnia: Legal and Factual Aspects of the Case VI Genocide at Srebrenica: Imputability to Serbia under the Law of State Responsibility VII Failure to Prevent and Punish Genocide: A Secondary Form of State Responsibility? VIII Footing the Bill (or Not) for Genocide: What Reparations are Adequate? IX Concluding Comments
I INTRODUCTION AND BACKGROUND TO THE CASE
On 26 February 2007, one of the longest running and most tortuous pieces of litigation in the history of the International Court of Justice came to a close when a decision on the merits was handed down in the case brought by Bosnia and Herzegovina ('Bosnia') against Serbia and Montenegro ('Serbia') (1) in March 1993. The case is truly one of superlatives: a duration of 14 years resulted in a majority judgment running to 171 pages (the first 32 of which are exclusively dedicated to recounting the history of the proceedings); appended to the Court's judgment are three declarations, two separate opinions and four dissenting opinions (one of which unites three Judges but itself contains a joint dissenting opinion of all three on certain points, plus a separate opinion of one of them and a joint declaration for the two others in respect of other points on which all three were not in agreement). Between them, all these declarations, and separate and dissenting opinions are substantially longer than the judgment of the Court, weighing in at 392 further pages. The multiplicity of opinions put forward by many of the Judges in respect of various specific points in the judgment is testimony to perhaps the most important superlative of all: the subject matter of the case itself. At issue was the extraordinarily complex and contentious question of whether, and if so to what extent, Serbia could be said to bear state responsibility in international law for alleged violations of the Genocide Convention (2) committed in the territory of Bosnia during the 1992-95 Bosnian War, which followed the secession of that republic from the former Socialist Federal Republic of Yugoslavia ('SFRY'). It would be no exaggeration to say that the factual events at the heart of the case shook the entire world, such was their ferocity and context as the first sustained armed conflict anywhere in Europe since the end of World War II. On both sides of the dispute, the outcome of the case was widely touted as representing either justice (for the Bosnian Muslims) or vindication (for the Serbs, both in Serbia itself and in the autonomous Serb entity that is one of the constituent parts of Bosnia post-1995). Furthermore, given the notoriety of genocide as 'the crime of crimes' (3) and the fact that international civil litigation alleging state responsibility for such a serious crime against international law was literally without precedent, the potential significance and effect of the decision, both in legal and moral terms, were enormous. Some, indeed, might consider that the ICJ was not the right forum for such a case.
The background to the case is as follows. Following Bosnia's declaration of independence from the former SFRY in March 1992, a civil war broke out in progressive stages between the three ethnic communities that had existed in Bosnia for several centuries. (4) Although initially internal in nature, this conflict was 'internationalised' at various points by the intervention of armed forces from both Serbia (5) and Croatia (6) on the sides of their respective co-ethnic forces. With the internationally recognised government of the new republic in Muslim hands, nationalistic elements in the Serbian component of the population started fighting against the Bosnian Government's forces. (7) Although initially the Croats and Muslims combined forces against the Serbs, subsequent fighting also broke out between Croatian and Government forces (largely over the division of the town of Mostar); the Serbs and Croats also fought against each other. Both of the non-Muslim nationalist leadership groups had similar aims, namely either outright independence for those parts of Bosnia where their ethnic populations primarily resided or, preferably, union with their co-ethnic neighbouring states: the Republics of Serbia and Croatia. As this would inevitably entail the dismemberment of the Bosnian State, the Muslim Government fought against both groups. Conversely, the desires of elements in the Serbian and Croatian leaderships to rule states that would be as ethnically homogenous as possible led to the widespread practice, particularly but not exclusively by the Bosnian Serb forces, of what was euphemistically termed 'ethnic cleansing' (8)--that is, the forcible removal, from various areas as they came under belligerent control, of local inhabitants who were of the 'wrong' ethnicity. (9) Although this loathsome practice did not necessarily involve killing per se, (10) it did so in enough instances--most notably at Srebrenica--to result in a widespread perception that genocide had occurred. (11) A notable feature of the hostilities in Bosnia was the presence of various militias and irregular forces (12) fighting on all three sides of the conflict, in addition to the official armies of the various competing authorities. The pattern of hostilities was further complicated by the intermittent direct involvement of the regular armed forces of the neighbouring Republics of Serbia and Croatia, who were fighting in support of their respective ethnic kin in Bosnia. In addition to directly intervening in the conflict, both Serbia and Croatia were involved indirectly by providing substantial assistance to their respective Bosnian allies in the form of finance, military equipment and other supplies. (13)
The Bosnian conflict ended in late 1995 with the signing of the Dayton Agreement. (14) In 1993 the United Nations Security Council, acting under Chapter VII of the Charter of the United Nations, had established the International Criminal Tribunal for the Former Yugoslavia ('ICTY') in order to prosecute persons alleged to have committed serious violations of international humanitarian law--including genocide (15)--anywhere in the territory of the former Yugoslavia; this was largely a response to the atrocities that were being reported from Bosnia in particular. (16) In several cases decided by the ICTY since its creation, Bosnian Serb defendants have been charged with genocide against the Muslims in relation to their conduct during the conflict; particularly notable in this respect was the first decision to affirm that the events at Srebrenica constituted genocide. (17) These cases, of course, have been concerned with adjudicating the criminal responsibility of named individuals; but implicit in the documented fact of participation by troops of the Federal Yugoslav Army ('JNA') in the conflict on Bosnian soil, and the proceedings against the late President of Serbia, Slobodan Milosevic, (18) has been the notion that Serbia as a state could be said to bear some legal responsibility for at least some of the atrocities committed in Bosnia. It was to that end that Bosnia filed with the ICJ an application instituting proceedings against the FRY, while the conflict was still ongoing, alleging that the FRY was responsible for genocide in Bosnian territory. (19)
II THE RELIEF REQUESTED AND THE PROCEEDINGS PRIOR TO THE JUDGMENT ON THE MERITS
In its application to the Court, Bosnia requested declarations that the Federal Republic of Yugoslavia ('FRY') 'has breached, and is continuing to breach, its legal obligations' (20) towards Bosnia under a number of international treaties, including the Genocide Convention, the Geneva Conventions of 1949, (21) Additional Protocol I thereto of 1977, (22) the Hague Regulations of 1907, (23) and the Universal Declaration of Human Rights of 1948. (24) Specifically, Bosnia alleged that the FRY, 'has killed, murdered, wounded, raped, robbed, tortured, kidnapped, illegally detained, and exterminated the citizens of Bosnia ... and is continuing to do so'. (25) Bosnia alleged that these actions, in addition to being in breach of the various treaties cited, also contravened customary international law. Furthermore, Bosnia claimed that the FRY was illegally using force against Bosnia and was violating the latter's sovereignty through a combination of armed attacks and illegal intervention, and by 'recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding and directing military and paramilitary actions ... by means of its agents and surrogates ...'. (26) In the circumstances, Bosnia further sought from the Court declarations that Bosnia was entitled to use force in self-defence and to request assistance from other states, and that the arms embargo imposed on the whole of the former Yugoslavia by the Security Council, (27) and all subsequent resolutions by the Council, must be construed in such a manner as not to impair Bosnia's inherent right to self-defence. (28) In addition to the above declarations, Bosnia also requested the Court to order the FRY 'to cease and desist immediately' from the breaches of the various legal obligations cited, (29) and pay reparations to the state and its citizens for the damage caused to 'persons and property as well as to the Bosnian economy and environment' by the alleged violations. (30)
On the same date as the original application, Bosnia also filed a request for the indication of provisional measures in order to secure urgent protection of its rights under the Genocide Convention (it should be remembered that the conflict in Bosnia was still ongoing at the time). Accordingly, on 8 April 1993, the Court indicated provisional measures directing the FRY to 'take all measures within its power to prevent commission of the crime of genocide', and directing both parties not to take any action which might aggravate the dispute between them. (31) This order was reaffirmed within six months, following a new Bosnian request for the indication of provisional measures citing additional bases for the Court's jurisdiction; moreover, the Court specified that the reaffirmed provisional measures 'should be immediately and effectively implemented'. (32)
In mid-1995, the proceedings on the merits of the case were suspended because the FRY raised preliminary objections as to both the Court's jurisdiction and the admissibility of Bosnia's application. (33) The Serbian preliminary objections were dismissed on 11 July 1996, the Court finding that it had jurisdiction to hear the case on the basis of art IX of the Genocide Convention, and that Bosnia's application was admissible. (34) In the same judgment, all of Bosnia's additional grounds for jurisdiction--including the Geneva Conventions and Hague Regulations--were rejected; the sole remaining basis of the Court's jurisdiction ratione materiae was thus art IX of the Genocide Convention. (35)
In April 2001, Serbia filed with the Court an Application for Revision of the 1996 Judgment on Preliminary Objections. (36) This was followed the next month by another document, in which Serbia argued that: (i) it had not been a party to the Statute of the ICJ until its admission to the UN on 1 November 2000; (ii) that it never had been, and still was not, a party to the Genocide Convention; and (iii) that when it had acceded to the Genocide Convention on 8 March 2001, it had entered a reservation to art IX thereof. Serbia accordingly argued that the ICJ lacked jurisdiction over it ratione personae. (37) The Court found the Application for Revision of the 1996 Judgment inadmissible on 3 February 2003. (38)
In the final merits phase of the case, therefore, the issues for the Court to decide were: (i) whether it had jurisdiction under art IX of the Genocide Convention, in light of Serbia's objections as stated in its Initiative to Reconsider; (39) (ii) whether the provisions of the Genocide Convention were applicable vis-a-vis the responsibility of States or only in relation to the criminal liability of individuals; (40) (iii) questions of evidence and proof, in light of the grounding of the case in factual assertions and counter-assertions, which were extremely difficult to adjudicate impartially; (41) (iv) whether Serbia was responsible for genocide in relation to specific places and events in Bosnia; (42) (v) whether Serbia was responsible for failure to prevent and punish genocide, including by its failure to respect the Court's Orders as to provisional measures; (43) and (vi) the appropriate remedy to be awarded by the Court. (44)
The key findings of the Court in its judgment were as follows:
1 The doctrine of res judicata precluded reconsideration of the 1996 decision on jurisdiction and the Court accordingly had jurisdiction to make a decision on the merits; (45)
2 The Genocide Convention was applicable to states as well as to individuals and the principles of state (civil) responsibility and individual criminal responsibility were therefore coexistent in relation to genocide; (46)
3 On the substantive allegations at the heart of the case, the ICJ accepted, largely on the basis of the ICTY's jurisprudence, that the acts alleged by Bosnia had in fact taken place, but declined to find that any of them amounted to genocide in international law except the massacre at Srebrenica in July 1995; (47)
4 Serbia was not responsible in international law for that act of genocide, (48)
5 On the other hand, Serbia was responsible in international law for failing to prevent and punish that act of genocide; (49) and
6 The most appropriate remedy for Bosnia in relation to that act of genocide was satisfaction--a declaration that genocide had been committed and that Serbia was responsible for failing to prevent and punish it--rather than any form of monetary compensation. (50)
Appended to the judgment of the Court are dissenting opinions by five Judges and a combination of separate opinions or declarations (concurring with the judgment) by nine Judges. Thus, only three Judges were able to resist the temptation to add their contributions separately to the record of decisions in this case. That the Bosnian and Serbian ad hoc Judges would make a point of recording their views separately is unsurprising. (51) This case note will thematically consider each of the main aspects of the Court's judgment, including the relevant portions of the various declarations, and separate and dissenting opinions.
III THE COURT'S JUDGMENT ON THE MERITS: THE JURISDICTIONAL QUESTION
It will be recalled that there was a lengthy dispute, which began in 1992, over whether or not the FRY had succeeded to the SFRY's membership of the UN. Under President Milosevic, the FRY insisted that it did not need to apply for membership of the organisation as it was the sole continuator State of the SFRY. (52) The UN, on the other hand, maintained that the FRY could not automatically continue the former SFRY's membership and that it would not be allowed to participate in the work of the General Assembly (and, subsequently, the Economic and Social Council) until such time as it applied for new membership. (53) The impasse was only resolved with the September 2000 election as President, in succession to Milosevic, of Vojislav Kostunica, who then applied for membership of the UN as had been requested. (54) The issue of the Court's jurisdiction centred on the question, raised by Serbia in its Initiative to Reconsider, of whether at the time of filing the proceedings Serbia was or was not the continuator State of the SFRY. (55) If it was not, then it would not have been a party to either the Genocide Convention (56) or (by virtue of its consequent non-membership in the UN) the Statute of the ICJ. Bosnia's arguments on this point were that: (i) the FRY had been...
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