Tuesday, February 27, 2007

The ICJ Tackles the Bosnian Genocide: Part 1: Jurisdiction

As the international legal blogosphere has noted elsewhere, the International Court of Justice has today delivered its long-awaited judgment in the Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Serbia and Montenegro). I now propose to join the ranks of bloggers expressing their opinions on the case. I realise that the case is somewhat beyond the specialisation of this blog, but given the importance of the case, I feel it right to deviate. Readers are, of course, free to disagree…
While the actual subject-matter of the proceedings, and the merits of today’s judgment, deal with questions close to my fellow blogger Björn’s heart, i.e. genocide and thus international criminal law, I will compound my deviation from the general subject-matter of this site by going into the procedural issues dealt with by the Court. This will form Part 1 of my comments on the case, to be followed by Part 2 on the merits.

As I have sought to explain in a lengthy earlier post (without much in the way of prophecy, as it turns out), the Court faced a few problems relating to its jurisdiction to decide the case. These resulted from the difficult position of the former Yugoslavia vis-à-vis the United Nations from 1992 until 2000, and more particularly from the Court’s own prior pronouncements on the question of whether the State had been a member of the UN or not.
Thus, the Court had decided in 1996 that it had jurisdiction to hear the case decided today (Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections), but later, in 2003 and 2004, discovered a very serious issue calling into question its competence to go ahead with the case.
This was because the Federal Republic of Yugoslavia had by then abandoned its claim of identity in international law with the old Socialist Federal Republic of Yugoslavia, and had therefore accepted that it had not been a member of the United Nations between 1992 and its admission to the Organization in 2000. If that were indeed the case, Yugoslavia would not have had a right of access to the Court under Article 35 (1) of the Statute of the Court, and would therefore not have been capable of being a respondent party in a case before the ICJ.
This point was impressed upon the Court in a 2001 request for a revision of the 1996 judgment, which had found in favour of the Court’s jurisdiction without going into the questions under Article 35 of the Statute, i.e. the matter of the respondent’s access to the Court. The request was, in 2003, rejected largely on the grounds of the specific requirements of the revision procedure under Article 61 of the Statute, but the Court also made reference to the ‘sui generis position’ Yugoslavia had enjoyed vis-à-vis the UN (Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia-Herzegovina), paras. 50, 71). What this meant was never entirely clear, but it was widely understood as implying that Yugoslavia had in the relevant period enjoyed some rights of membership in the UN, but not others. Indeed, the ICTY expressly said as much in The Prosecutor v. Milan Milutinović, Dragoljub Ojdanić and Nikola Sainović (Case No. IT-99-37-PT, Decision on Motion Challenging Jurisdiction, paras. 37-44), citing the ICJ revision judgment in support of this position.
Whatever this ‘sui generis position’ meant, the notion was not to be around for very long. In a separate set of proceedings instituted by Yugoslavia against all the member States of NATO relating to the Kosovo air campaign, the Court firmly stated in December 2004 that Yugoslavia had not been a member of the United Nations, that it had therefore not enjoyed a right of access to the Court, and that the Court was therefore not competent to deal with the case (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, para. 91).
The Court was, of course, much criticised for thus departing from its own, very recent precedent, as established in the 2003 revision judgment (see ibid., Joint Declaration of Vice-President Ranjeva, Judges Guillaume, Higgins, Kooijmans, Buergenthal and Elaraby, esp. paras. 3, 12).

There was, now, recent ICJ authority saying in the clearest possible terms that Yugoslavia had not been capable of being a party to a case before the Court, when the Genocide case, decided today, was introduced (that being the relevant point in time). This would be expected to give Serbia and Montenegro (as it was by then called) high hopes that the case against them would be dismissed in line with the Court’s 2004 opinion. But the Court today did nothing of the kind.

Instead, the Court today returned to its 1996 judgment, in which it had found that it had jurisdiction. That judgment never went into the question relevant today, namely that of the respondent State’s access to the Court under Article 35 of the Statute, but this did not trouble today’s Court. It held that the 1996 judgment was dispositive of the jurisdiction issue as a whole, and that it had to be interpreted as encompassing not only the matter of jurisdiction under Article 36 of the Statute (which requires the agreement of the parties to bring the case before the Court, in this case established generally in Article IX of the 1948 Genocide Convention), but also the logically anterior question of whether both parties were indeed capable of being parties to the case under Article 35 (and, presumably, Article 34 (1), as well, although this did not present any problems). In other words, the judgment finding for the Court’s jurisdiction would be understood to say not only what it clearly did say, but also to establish what it logically had to say.
This having been established, the 1996 judgment was res judicata as between the parties, which meant that the Court could not go back and re-enter questions it had finally determined at the earlier stage. The power in and obligation on the Court to satisfy itself, if need be proprio motu, of its own jurisdiction, and particularly of the competency of the case under Articles 34 and 35 of the Statute, did not trump res judicata, as no precedent showed this power and obligation to exist in cases where the constraints of res judicata applied.

This presents a novel reading of the doctrine of res judicata, which would previously have been understood as referring only to what has really been decided and reasoned by the earlier Court, and to nothing more (see the Joint Dissenting Opinion of Judges Ranjeva, Shi and Koroma appended to today’s judgment, paras. 3-4). Also, the dissenting judges argue that the broader reading of res judicata adopted by the Court could not be reconciled with Article 56 of the Statute, which requires the Court to give reasons for its decisions: if that is so, surely the Court cannot be accepted as having decided an issue without having given even the slightest reasoning to support its supposed holding (ibid., para. 3)?
To be sure, the duty to give reasons for a decision is an indispensable part of all judicial work (see Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, ICJ Reports (1954), pp. 47, 52; L.F. Damrosch, in: A. Zimmermann, C. Tomuschat, K. Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary (2006), Art. 56 MN 19-22). But the argument derived from this may still not be as compelling as it would appear: the force of res judicata is a corollary of the finality of the Court’s judgments (Article 60, cl. 1 of the Statute); indeed, it may be no more than another word for it. Such finality exists in the interests of ‘the stability of legal relations’ (today’s judgment, para. 116; in other words, legal certainty), and thus in the interests of all the parties (ibid.), and ultimately the rule of law itself (see ibid., para. 116 in fine, and Hornsby v. Greece (ECtHR), para. 40). It is difficult to see how any of these interests could be diminished if the Court has failed to give reasons for its resolution to the case before it (the relevant aspect of the rule of law is that of legal certainty, not of the material correctness of the decision).
In particular, it is not the Court’s authority that is protected by the preclusive effect of res judicata. If that were the case, the doctrine would apply even to later cases between other parties, and to later cases where there is no complete ‘identity of cause [and] of subject-matter’ with the previous case (see on these requirements of res judicata the Joint Dissenting Opinion, supra, para. 4); it would operate a lot like a doctrine of stare decisis. This it does not do (see ibid.). It is therefore also no argument against the majority view of res judicata that the Court’s authority is not involved if it has never pronounced on a given aspect of a case.

There might be a problem in the Court’s approach in that it ascribed finality to a holding in an earlier decision on which the parties had not at that time presented any argument. But this only really goes to the procedure in the previous case, not to the question of whether the case can be regarded later as having finally determined any issue. After all, even the most explicit holdings can, in certain circumstances, go beyond or otherwise stray from the arguments of the parties (although the doctrine of ne ultra petita, albeit limited by the possibilities of Court action proprio motu, will prevent the Court from going beyond the parties’ claims), and conversely, an issue argued at some length by the parties might appear in the judgment only as a logically implicit holding, like the one found by the Court today.
Also, the preclusive effect of the doctrine of res judicata will obviously not prevent the parties from arguing their case on the previously decided points; the Court is always very slow indeed to interfere with a State’s choice of arguments. While this does not really give the parties ‘their day in court’ if the Court cannot reply to such arguments, full argument may lead the Court to decide that the matter was not, after all, decided in the earlier case.

While neither the argument based on the absence of reasons from the earlier case, nor the one on the absence of argument by the parties provide conclusive general reasons against the judgment of the Court, both do indicate that the course chosen is far from desirable.
But in the circumstances, the solution adopted may have been the most elegant way out of a dilemma: the Court otherwise had a choice on whether it would continue to hold that Yugoslavia had not been a member of the UN, or revert to its previous holding that only some rights of membership were available to that State.
In the former case, it would have again contradicted its 2003 revision judgment, and greatly alienated not only the applicant, but also many other States interested in hearing the Court’s judgment on the merits. The result might even have been comparable to the disaster that struck the Court after its infamous 1966 South West Africa Cases, when States more or less ignored the Court, and starved it of cases. (Perhaps ironically, the Court would appear to have nailed the final nail in the coffin of South West Africa, 1966: if its present view of res judicata had been taken in 1966, the 1962 judgment would almost certainly have prevailed over the 1966 Court’s own opinion).
In the latter case, the Court would again have departed from its own precedent, and, it might be added, for no good substantive reasons. This volte-face might also have served to alienate States, as they could no longer be confident that the Court would faithfully apply its own case-law. Legal certainty is important to litigants, and the absence of legal certainty may wreck a court.
Instead of taking either of these routes, the Court said that while the substantive law is as stated in the 2004 Legality of Use of Force cases (i.e. Yugoslavia was not, at the relevant time, a member of the UN), the Court was bound by the earlier res judicata, and could not give effect to the actual state of the law.
The expansive view of res judicata necessary for this way out of the problem may be open to some doubt, but it does take some more doing to criticise it than to attack either of the other options. Also, the view actually taken may not become relevant again, and thus probably does not carry any risk that States will be seriously unhappy about it (except Serbia).

Finally, a few quick words on whether res judicata, if it does apply, can be overcome by the duty on the Court to satisfy itself of its own jurisdiction. First, it is demonstrated by the Court that there is no precedent demanding a positive answer to the question. This is unsurprising, as the case will hardly ever arise.
Secondly, the Court has also said (at para. 138) that there is no risk that it could ever give judgment on the merits without having jurisdiction, after having erroneously having found that it is competent in a previous judgment on preliminary objections. This is because the question of the Court’s jurisdiction is for it alone to finally decide (Article 36 (6) of the Statute). Therefore, if the Court has found that it has jurisdiction, and is substantively wrong in this, Article 36 (6) of the Statute has the effect of turning the Court’s positive decision on jurisdiction into a title of compulsory jurisdiction; the judgment alone gives the Court jurisdiction. It follows that, ‘as a matter of law’ (ibid.; emphasis in the original), the Court can transform a case without jurisdiction into one without any such problems. Accordingly, if Article 36 (6) of the Statute applies also to decisions on Article 35 (and who else could be entitled to make that decision?), the Court’s decision on access will create a right of access, if it finds one that does not really exist. Therefore, there can be no question of the Court having to go into the matter of the right of access again after that decision, simply because there is no absence of access to rectify, and the Court could only ever come up with a positive answer.

To sum up, I agree with the Court that it was entitled to exercise its jurisdiction, though not without some misgivings. Such misgivings as there are, however, are due not so much to errors on the part of the Court, but to the inconvenient circumstances in which it now found itself. Its solution seems to have been the best possible.


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