The ICJ Tackles the Bosnian Genocide: Part 1a: Some More Thoughts on Jurisdiction

Yes, I know I have already written a fair bit about the jurisdiction-related aspects of the Genocide case, but recent research, and a few ideas resulting from that, leads me to add a few short comments on the notion of res judicata applied by the Court (the judgment is now here, the Court’s website having been much improved since my original post).

It will be recalled that the Court treated the 1996 judgment as deciding not only that the Court had jurisdiction under Article 36 of the Statute, but also that the parties had a right of access to the Court under Article 35 of the Statute.
This may seem unremarkable – or at any rate, not nearly as remarkable as some other aspects of the 2007 decision on jurisdiction. After all, the parties’ right of access to the Court is of the first importance: where there is no access, there can be no jurisdiction stricto sensu. The latter question would not even arise. It is therefore hardly beyond the bounds of reason to say that a finding of jurisdiction in the sense of Article 36 implicitly makes a finding on access within the meaning of Article 35 (and Article 34(1), as well).

The truly exceptional holding in the jurisdiction part of the merits judgment is that the doctrine of res judicata can apply even to such an implicit finding, as opposed to one that the Court has clearly expressed and for which it has given reasons.
It is this part of the judgment on jurisdiction that has come in for very serious criticism, not least from the dissenters within the Court itself (see the Joint Dissenting Opinion of Judges Ranjeva, Shi and Koroma, passim). Also, one of my lecturers at the University of Edinburgh has commented on the whole merits judgment only by saying that on the issue of res judicata, ‘the Court has got it badly wrong.’
For what it’s worth, I have already argued that the Court’s conception of res judicata may not be as wrong as it might seem. I acknowledge, however, that this conception is a novel one, and rather goes against one of the central tenets of the doctrine, as it had been understood until now, namely the element by which res judicata effect would attach only to the actual content of a judgment (see the Joint Dissenting Opinion, supra, paras. 3-4, and also the Opinion of Advocate-General Léger in Köbler v. Republic of Austria (ECJ), para. 101).

I now derive some support for my – still somewhat cautious – propositions from the common law, which suggests that the finality of a judgment may not actually be limited to what the judgment clearly says. This in turn would suggest that the dissenters in the ICJ were wrong to paint their supposed limitation of res judicata effect as a general principle, and conversely, that the majority of the Court did not so much extend the concept of res judicata, but only applied a broader notion that had existed previously.

In English law, the leading case on the finality of judgments is Henderson v. Henderson (1843) 3 Hare 100, in which Sir James Wigram V-C said at pp. 114-115 (the case is not online, but the quote appears at para. 55 of Aldi Stores Ltd. v. WSP Group Plc and Others [2007] EWHC 55 (TCC):

‘In trying this question, I believe that I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.’ (My emphasis)

A much later court said this about the case: ‘The rule in Henderson v. Henderson (1843) 3 Hare 100 is very well-known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first instance but failed to raise.’ (Barrow v. Bankside Agency Ltd. [1996] 1 WLR 257, 260 [CA, per Sir Thomas Bingham MR])
The rule is therefore ‘not concerned with cases where a court has decided the matter; but rather cases where the court has not decided the matter, but where in a (usually late) succeeding action someone wants to bring a claim which should have been brought, if at all, in earlier concluded proceedings.’ (Manson v. Vooght [1999] BPIR 376, 387 [CA, per May LJ])

The same principles are recognised in the legal orders of the Republic of Ireland (Cox v. Dublin City Distillery (No. 2) [1915] 1 IR 345; Carroll v. Ryan [2003] IESC 1, [2003] 1 IR 309; A (A) v. The Medical Council [2003] IESC 70, [2003] 4 IR 302, 315-317; Law Society of Ireland v. Malocco [2005] IESC 5; Mitchell v. Ireland [2007] IESC 11) and of Scotland (British Airways Plc v. Employment Appeal Tribunal [2001] IRLR 157, paras. 4-8; Clarke v. Fennoscandia Ltd. 2005 SCLR 322, para. 40).

To be sure, the rule in Henderson v. Henderson is now accepted as relating not to res judicata in the strict sense of the word, but to express a separate rule of abuse of process: a party to case A would, in seeking in a case B to relitigate case A or to litigate anew arguments which he could have brought forward in case A, abuse the process of the court in case B, and case B would therefore be dismissed. (See Johnson v. Gore Wood [2002] 2 AC 1, 31 [HL, per Lord Bingham of Cornhill]; Barrow, supra, ibid.; Manson, supra, ibid.; Bradford and Bingley Building Society v. Seddon [1999] 1 WLR 1482, 1490 [CA, per Auld LJ])
However, nothing turns on the description of the rule as either an ‘extended application of the res judicata doctrine’ (C (A Minor) v. Hackney London Borough Council [1996] 1 WLR 789, 796 [CA, per Simon Brown LJ]) or as something else; indeed, the Supreme Court of Ireland, in A (A), supra, at p. 315, describes the discussion on this as merely a matter of ‘taxonomy’. As for the material content of the rule, the House of Lords has explained as follows:
‘But Henderson v. Henderson abuse of process, as now understood, although separate and distinct from [res judicata], has much in common with [it]. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.’ (Johnson v. Gore Wood, supra, ibid.)
In speaking of the ‘finality in litigation’, the House cannot have meant the finality of actual judicial findings, because in Henderson v. Henderson cases, there are no such findings. It must therefore refer to the finality of the earlier case in the sense that the first hearing on a general question (e.g. liability, or jurisdiction) should also be the only, and hence the last, or final, one.

It may be argued that the same reasoning is appropriate in the procedural law of the ICJ. Certainly, it is an abuse of (the Latin) language to describe a matter that has not been adjudicated upon as a res judicata (an adjudicated matter). But the rule in Henderson v. Henderson, whatever its present description at common law, is also based on the fundamental interest of the law in the finality of judgments, and it should be recalled that it is this finality that Article 60 of the ICJ’s Statute enshrines, not the doctrine of res judicata in those terms (which are only in this context more specific than the ‘finality’ formulation).
This is not to say that the ICJ has adopted the rule of Henderson v. Henderson in the Genocide case; there is no indication that the ICJ has left the domain of the doctrine of res judicata and entered the field of some form of ‘abuse of process’ jurisdiction (for which there are only a few hints in ICJ case-law). Instead, the Court has failed to make any argument at all as to why the doctrine of res judicata should now extend to implicit holdings; the reasoning that the Court did deploy was exclusively directed at the anterior question whether there had been any implicit holding on the issue of access in the 1996 judgment.
Of course, that question would not strictly have arisen on the Henderson v. Henderson approach, which expressly applies to questions that were not decided. Nonetheless, Henderson v. Henderson requires an exercise not dissimilar to that conducted by the Court, to find whether the issue sought to be presented was one that, while not addressed squarely in the earlier case, ‘properly belonged to the subject of litigation’ of that case (to borrow a phrase from Henderson v. Henderson). For instance, in the Genocide case, the issue of access would not have ‘properly belonged to the subject of litigation’ if the jurisdiction stage had not encompassed also the issue under Article 35 of the Statute.
What I do seek to argue first and foremost is that the rule in Henderson v. Henderson shows that the reasons behind the doctrine of res judicata are capable of supporting an application of res judicata concepts outside the confines of the express holding of the earlier judgment. This being so, and the fact being recognised in several common law jurisdictions, it may be permissible to extend the concept of res judicata itself, as it applies in international procedural law. Indeed, the suggestion that the doctrine of res judicata generally and in every legal order applies only to actually decided matters appears to be correct, as regards the common law, only as a matter of legal language; after all, the rule in Henderson v. Henderson practically extends the concept of res judicata, while using another name for it (that of ‘abuse of process’).

The application of such an extended concept of res judicata (under whatever name) may, however, be somewhat more difficult than that of the bare concept of res judicata as applicable to matters that have actually been argued and decided.
This is because the approach exemplified by Henderson v. Henderson does not merely prevent the re-litigation of issues that have been presented and decided before. It prevents the first litigation of issues that only could have been presented earlier, and have never been decided. (Johnson v. Gore Wood, supra, at p. 59 [per Lord Millett]) An overly zealous application of the rule is therefore liable to exclude a ‘genuine subject of litigation.’ (ibid., quoting Brisbane City Council v. Attorney-General for Queensland [1979] AC 411, 425 [PC, per Lord Wilberforce])
That is why the test of the rule in Henderson v. Henderson in English law, is not merely whether the issue presented could have been argued in the earlier case (i.e. whether it ‘properly belonged to the subject of litigation’ of that case), but whether it ‘could and should’ have been (Divine-Bortey v. Brent London Borough Council [1998] ICR 886, 888 [CA, per Simon Brown LJ]; Manson, supra, at 388; my emphasis). There are many judicial illustrations of this, but there are no hard and fast rules. The judge faced with the second case is to form a ‘broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.’ (Johnson v. Gore Wood, supra, at 31) This may, but need not mean that ‘[t]he bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (…) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.’ (Ibid.)
This ‘should’ part of the test would not be easy to apply in the Genocide case. The Federal Republic of Yugoslavia (as the respondent was then called) chose in 1996 not to plead the issue of its own access to the Court because its political position, expressed in many fora, was that it remained a member of the United Nations as the continuation of the old Yugoslavia (the SFRY). Requesting the Court to dismiss the case under Article 35 of the Statute would have been to abandon that argument. Based on what we know today, it would have been possible to present the point as a mere question, for resolution by the Court proprio motu, and without taking a firm position on it. But this power in and duty on the Court to examine proprio motu the issue of the parties’ access to the Court was only stated on 15 December 2004, in the Legality of Use of Force cases (see the case against Belgium here, at para. 36). That being so, it is difficult to argue that, in this instance, the sovereign interest of Yugoslavia in maintaining its position on its own identity should take a back seat to the Court’s interest in being able to decide all issues relevant to the jurisdiction stage in one go (i.e. in 1996).
But it is by no means certain that an acceptance of the extension of res judicata effect exemplified by the rule in Henderson v. Henderson would have to include the precise test developed at common law. Indeed, this would almost certainly be going too far, as it cannot seriously be argued that the Court should defer to the authority of English (and Irish and Scottish) judges. A cautious application of the doctrine is possible even without the specific limitations of the formula ‘could and should’. In particular, the interest in the finality of the first judgment, in which the new issue was first relevant, would seem to support the extension of res judicata effect even without any additional elements.
Applied to the Genocide case, this extension would mean that Yugoslavia should have argued the issue of access already in 1996, and having failed to do so must face the consequence of the argument being unavailable to it later. The lesson then is to deploy at the jurisdiction stage everything that has a bearing on jurisdiction.

I, for one, can see no objection to such a course of action. I find it at the very least arguable that the Court’s extension of the concept of res judicata is neither unprincipled, nor even without precedent. It is almost certainly incorrect that res judicata was, before the Court’s judgment was delivered, universally understood as available only in respect of express holdings; the citations I have given to the common law are intended to show that at least one of the main legal systems of the world goes considerably further in maintaining the finality of the judgments of its courts. I find nothing wrong with the ICJ taking a similar line.