Friday, March 03, 2006

The ICJ tackles the Bosnian Genocide – or maybe not…

The International Court of Justice has begun to hear oral pleadings on the merits in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide. This does raise the hope that the Court will, if somewhat belatedly, determine the legal issues arising from the civil war that wrecked the Balkans throughout much of the 1990’s. Whether this will do very much good, now that 13 years have passed since the events and circumstances on the ground have changed a lot, is, as Julian Ku at Opinio Juris suggests, an open question. I would, however, not go so far as to suggest that the Court has a ‘limited usefulness’; after all, if Bosnia and Herzegovina had agreed with this statement, it would have discontinued the case long ago. Accordingly, the judgment remains highly desirable to the applicant, and it is primarily this interest that the Court is there to serve.
As for the international legal community, it is obviously most interesting that this is the first time that state responsibility for genocide may be formally established (see Helena Cobban’s post at TJF).
However, all this would presuppose that it will come to such a judgment, and this is far from clear. These are very unusual merits proceedings, in that they do not exclusively concern the merits of the case.

The respondent has made a request to the Court to reconsider jurisdiction on 4 May 2001, and the Court has still not addressed this. The notice, called the ‘Initiative to the Court to Reconsider Ex Officio Jurisdiction over Yugoslavia’, was not in terms of any known procedural step by Yugoslavia as a party; it simply, as appears from its title, argued that the Court could go into the question of its jurisdiction at any time, even proprio motu, and apparently unimpeded by any res judicata.

This raises a host of questions, which the Court may not be altogether happy to answer.

The first problem is whether the Court really can go into the question of its jurisdiction proprio motu, i.e. without any formal request by either party. Insofar as the jurisdiction of the Court is based on the consent of the parties, this might be doubted on the simple basis that, if a state does not contest the jurisdiction of the Court, it may well be consenting to it. Thus, the Court’s competence to decide on its own jurisdiction may be said to arise only if there is a dispute on the question (or if Article 53(2) of the Statute commands the Court to examine the issue anyway, in the event of a default by a party).
The Court answered this argument in its 2004 judgment on the preliminary objections in the Legality of Use of Force cases, which Yugoslavia (later Serbia and Montenegro) had brought against the member states of NATO for their Kosovo air campaign in 1999. Then as now, the problem of the Court’s jurisdiction concerned not the jurisdiction under Article 36 of the Statute, but the more basic issue of whether Yugoslavia had been a party to the Statute and had consequently enjoyed the right of access to the Court (Article 35(1) of the Statute) when instituting the case. Accordingly, the Court held, the question was not one determined by the consent of the parties. It was therefore not necessary for the question to be raised by any party, before the Court could enter into an examination of the requirements of Article 35(1).
Exactly the same question, i.e. whether Yugoslavia enjoyed a right of access to the Court, impresses itself upon the Court in the present case. It would therefore appear that the Court is indeed capable of considering the issue proprio motu.

However, the Court has already decided in 1996 that it had jurisdiction. Does this not bind the Court today, not by any doctrine of stare decisis, but as res judicata? In other words, would it not be fundamentally unfair and therefore inadmissible for the Court to go and decide a question now, which it has already decided, perhaps differently, years ago?
(To make a token connection to human rights law, the European Court of Human Rights said in Brumărescu v. Romania, at para. 61, that the finality of court judgments was ‘[o]ne of the fundamental aspects of the rule of law’)
This would appear to be the argument pressed on behalf of the applicant, Bosnia and Herzegovina, and it would seem to be supported in principle by the Court. The Court was asked to enter into a revision of its 1996 judgment on jurisdiction, and it did so in its 2003 judgment on the request. This implied that the Court regarded the 1996 judgment as a res judicata, because the special procedure of revision exists purely to overcome the limitation of the res judicata principle, and can therefore apply only to the res judicata of the previous judgment. True, the request was eventually rejected, but not on the grounds that the 1996 judgment did not contain a res judicata.
However, there may be ways of getting around this. Firstly, the distinction made by the Court between jurisdiction under Article 36 and access to the Court under Article 35 may mean also that the matter of a state’s access to the Court is incapable of being covered by a res judicata. This argument might run as follows (this is me guessing here): Article 35 sets a fundamental condition on the ability of states to appear before the ICJ, which moreover is in no way subject to the consent of the parties. Thus, it might be said, the capacity of the Court to entertain a case remains at all times under the condition that all the parties have a right of access under Article 35, or have at least had that right when the case was instituted.
A second argument may be rather less difficult to imagine: the 1996 judgment did not even mention the question at issue today, but concentrated on Article 36(1) of the Statute and Article IX of the Genocide Convention. Therefore, no res judicata on the Article 35 issue exists, because this can only be based on what has been said on a previous occasion, not on what the Court should have said at the time.

To sum up, it may be that the Court has a power and a duty to re-examine the question of whether Yugoslavia could at the relevant time be a party to the case, and the Court may not be prevented from doing so by any res judicata.

If the Court accedes to Yugoslavia’s (now Serbia and Montenegro’s) request to do so, it may find itself in a somewhat unpleasant situation. The Court would have to decide (again) whether Yugoslavia was at the relevant time a party to the Statute of the Court, which it would have been by virtue of being identical with the old Socialist Federal Republic of Yugoslavia and therefore a member of the United Nations (see Article 93(1) of the UN Charter).

On this basis, Yugoslavia had argued in its request for a revision of the 1996 judgment finding in favour of the Court’s jurisdiction that it had not, contrary to its earlier beliefs and statements, been the continuator state of the former Socialist Federal Republic of Yugoslavia and therefore a member of the United Nations when the case was instituted against it.
The Court did not buy into this argument, stating in its 2003 judgment on the admissibility of the request for revision that, firstly, Yugoslavia had at the relevant time enjoyed a sui generis status vis-à-vis the United Nations, and that, secondly, the request was not based on any ‘new fact’ in the sense of Article 61 of the Statute.
This reference to Yugoslavia’s sui generis position would appear to mean that Yugoslavia enjoyed some rights of membership, including that of access to the Court. Only this conclusion could have availed the Court in finding that the assumption of access in its 1996 judgment was not in fact wrong.

However, the question of access to the Court was raised again in a very different set of proceedings, namely the aforementioned Kosovo cases. When it came to the respondent’s argument that Yugoslavia had not been a member of the UN when instituting the case, one might have expected the Court to follow the lead of its 2003 revision judgment and to flesh out the concept of the sui generis membership. Not so, as it turned out.
The Court had perhaps been impressed by the political undesirability of the case before it, both to the respondents and to Serbia and Montenegro, which in the meantime had developed altogether happier relations with the West, but could not be seen domestically to discontinue the Kosovo cases. One might therefore assume that this was the internal (but by no means expressed) reason for the Court to reconsider whether Yugoslavia had really had access to the Court.
What the Court did say was that its use of the term sui generis in 2003 was in no way intended as a statement of any legal content, but merely as a description of the difficult facts. This is not extremely convincing, for the reasons mentioned above (the phrase must have had some legal relevance, or else the Court in 2003 would not have used it). Anyway, the Court in 2004 in the Kosovo cases found that Yugoslavia did not have the requisite access to the Court under Article 35(1) of the Statute, and the Court was much criticised for its refusal to follow its own very recent precedent, which moreover concerned the same state (see e.g. the Joint Declaration of Vice President Ranjeva and Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby appended to the Court’s judgments in the Kosovo cases).

It is this flat statement that makes Yugoslavia’s (and now Serbia and Montenegro’s) ‘Initiative to the Court to Reconsider Ex Officio Jurisdiction over Yugoslavia’ such a stark choice for the Court. The first option for the Court would be that it agrees with its own Kosovo judgment and finds that it does not, after all, have jurisdiction in the case, thus effectively vacating its 1996 judgment in the present case, and obviously continuing to disrespect its 2003 sui generis solution.
The second option would be for the Court to return to the view expressed in 2003, thus departing from an even more recent holding (that of 2004 in the Kosovo cases), and moreover one in which the earlier opinion of the Court had been considered. This is not only highly unlikely, considering that many of the judges of the Kosovo cases remain on the bench, it is also very undesirable. But then so is the first option.

I hope I may be excused for not expressing any view on this thorny question. Whatever I say now could only come back to haunt me.
I also realise, of course, that this post does not strictly relate to human rights, international criminal law, or international humanitarian law. The case at hand, however, clearly does concern Yugoslavia’s (again, now Serbia and Montenegro’s) responsibility for violations in pretty much all these categories, and I only set out to show that it may, sadly, not come to the merits judgment many now hope for. (A lame excuse if there ever was one. Go on, sue me.)


Blogger Tobias Thienel said...

I might add that the (apparent) solution chosen by the Court in 2003, that of regarding Yugoslavia as a member of the UN in some respects, but not in others (under the sui generis approach), was adopted by the ICTY in The Prosecutor v. Milan Milutinović, Dragoljub Ojdanić and Nikola Sainović, Case No. IT-99-37-PT, Decision on Motion Challenging Jurisdiction, available at, at paras. 37-44.
The 2004 Kosovo cases would seem to flatly contradict this judgment as well.

13 February, 2007 19:27  
Blogger Tobias Thienel said...

Pedants' revolt: Milutinovic was a decision, not a judgment.

And the defendant in the Genocide case is now, of course, Serbia, and not Serbia and Montenegro.

13 February, 2007 19:30  
Anonymous Anonymous said...

Very interesting post. I read it after you referred to it in a comment on opinio juris. These jurisdictional issues will not be very interesting to most readers, but for international lawyers they are indeed interesting. I still hope the Court will find a way to move on to the merits.

13 February, 2007 23:34  
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31 July, 2010 06:24  

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