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The Strange Story of the Bosnian Genocide Case

Abstract
Abstract

The article explores the political context of the Bosnian Genocide case recently decided by the International Court of Justice. It strives to show that an appreciation of the larger disputes within Bosnia and Herzegovina and Serbia is necessary for understanding the Court's judgment properly, particularly when it comes to the litigation strategies of the two parties which shaped the final outcome of the case, and, above all, for understanding how the judgment was perceived by the general public of the former Yugoslavia.

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1. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 27 February 2007 (not yet published) (hereinafter Genocide judgment).

2. See, e.g., the articles in the current and forthcoming issues of this journal, and forthcoming symposia on the Genocide judgment in (2007) 18-4 EJIL and (2007) 5-4 Journal of International Criminal Justice.

3. Generally on the Memorandum see L. J. Cohen, Serpent in the Bosom: The Rise and Fall of Slobodan Milošević (2001), at 59 et seq.; S. P. Ramet, Balkan Babel: The Disintegration of Yugoslavia from the Death of Tito to Ethnic War (1996), at 198 et seq.

4. ‘The physical, political, legal and cultural genocide perpetrated against the Serbian population of Kosovo and Metohija is the greatest defeat suffered by Serbia in the wars of liberation she waged between Orasac in 1804 and the uprising of 1941.’ Excerpts from the Memorandum in English are available at http://www.haverford.edu/relg/sells/reports/memorandumSANU.htm.

5. See generally D. B. MacDonald, Balkan Holocausts? Serbian and Croatian Victim-Centred Propaganda and the War in Yugoslavia (2002); M. Thompson, Forging War: The Media in Serbia, Croatia and Bosnia-Hercegovina, (1999).

6. Among the many pseudo-scientific treatments of Serbian suffering, pride of place is given to the massive, 4-volume work by M. Bulajić, Ustaški zločini genocida i su đenje Andriji Artukoviću I-IV (1988 and 1989) (Ustashe crimes of genocide and the trial of Andrija Artukovic, in Serbian).

7. Prosecutor v. Tadić, Case No. IT-94–1, Opinion and Judgement, 7 May 1997, para. 53 et seq.

8. An archaic way of saying ‘The Serb Republic’.

9. See the results of the BiH population losses project of the Sarajevo Research and Documentation Centre, led by Mirsad Tokaca, which are available at http://www.idc.org.ba/presentation/Bosnia%20and%20Herzegovina.zip, in PowerPoint format. Slide 11 shows the number of deaths during 1992, which peaked in June of that year with 10,546 people killed. The total number of deaths in 1992 is 45,110, while the total number of deaths in the entire war is 97,207 (Slide 2). Slide 34 shows the number of deaths by ethnicity, and demonstrates that of the 45,110 deaths in 1992, 30,442 were Bosniaks. Slide 33 shows that, for the entire war, 65.88 per cent of victims were Bosniaks by ethnicity and 25.62 per cent were Serbs, while 8.01 per cent were Croats. This project, also called ‘the Bosnian Book of the Dead’, is the most comprehensive so far in establishing the number of victims of the war. It is not based on estimates, but on actual data and records of people killed. For brief overviews, see, e.g., N. Ahmetasevic, ‘Bosnia's Book of the Dead’, Balkan Investigative Reporting Network (BIRN), 21 June 2007, available at http://www.birn.eu.com/en/88/10/3377/.

10. Genocide case, Application Instituting Proceedings, 20 March 1999, esp. para. 135(m)–(o).

11. Ibid., paras. 88–101.

12. Ibid., para. 135.

13. Genocide case, Request for the Indication of Provisional Measures of Protection submitted by the Government of the Republic of Bosnia and Herzegovina, 20 March 1993. BiH asked the Court to indicate, inter alia,

  1. 4.

    4. That under the current circumstances, the Government of Bosnia and Herzegovina has the right to seek and receive support from other States in order to defend Itself and its People, including by means of immediately obtaining military weapons, equipment, and supplies.

  2. 5.

    5. That under the current circumstances, the Government of Bosnia and Herzegovina has the right to request the immediate assistance of any State to come to its defence, including by means of immediately providing weapons, military equipment and supplies, and armed forces (soldiers, sailors, airpeople, etc.).

  3. 6.

    6. That under the current circumstances, any State has the right to come to the immediate defence of Bosnia and Herzegovina – at its request – including by means of immediately providing weapons, military equipment and supplies, and armed forces (soldiers, sailors, and airpeople, etc.).

14. Genocide case, Order of 8 April 1993, paras. 35 and 52.

15. BiH's second request asked the Court to indicate, inter alia:

  1. 4.

    4. That the Government of Bosnia and Herzegovina must have the means ‘to prevent’ the commission of acts of genocide against its own People as required by Article 1 of the Genocide Convention.

  2. 5.

    5. That all Contracting Parties to the Genocide Convention are obliged by Article 1 thereof ‘to prevent’ the commission of acts of genocide against the People and State of Bosnia and Herzegovina.

  3. 6.

    6. That the Government of Bosnia and Herzegovina must have the means to defend the People and State of Bosnia and Herzegovina from acts of genocide and partition and dismemberment by means of genocide.

  4. 7.

    7. That all Contracting Parties to the Genocide Convention have the obligation there under ‘to prevent’ acts of genocide, and partition and dismemberment by means of genocide, against the People and State of Bosnia and Herzegovina.

  5. 8.

    8. That in order to fulfil its obligations under the Genocide Convention under the current circumstances, the Government of Bosnia and Herzegovina must have the ability to obtain military weapons, equipment, and supplies from other Contracting Parties.

  6. 9.

    9. That in order to fulfil their obligations under the Genocide Convention under the current circumstances, all Contracting Parties thereto must have the ability to provide military weapons, equipment, supplies and armed forces (soldiers, sailors, airpeople) to the Government of Bosnia and Herzegovina at its request.

16. Genocide case, Order of 13 September 1993.

17. UN Doc. A/48/659 and S/26806, 26 November 1993.

18. The statement of intent to file proceedings against the United Kingdom, the joint Bosnia and Herzegovina–UK statement that proceedings would not be instituted, and the letter dismissing Francis Boyle as co-agent are reproduced in F. Boyle, The Bosnian People Charge Genocide (1993), at 365–9. In its Postscript (371–3), Boyle states that before he was dismissed, he phoned the Registrar of the ICJ and asked him to convey to the Court that the BiH decision not to institute proceedings against the United Kingdom ‘was made under duress, threats, and coercion perpetrated by the British government and the governments of several other European states’, and thus the agreement to ‘withdraw the lawsuit’ was void ab initio and he reserved the right of BiH to denounce this agreement at any time and institute the proceedings. He also stated that the United Kingdom had demanded that he be fired as BiH's Agent, since ‘[t]he British government knew full well that I was the one responsible for the Bosnian strategy at the Court’ (ibid., at 371). We are most grateful to Iain Scobbie for providing us with this information.

19. The rump parliament declared that the FRY ‘continuing the state, international legal and political personality of the SFRY shall strictly abide by all the commitments that the SFRY assumed internationally’. The intention of the FRY to continue the personality of the SFRY was communicated to the Secretary-General of the United Nations by a diplomatic note the same day. See UN Doc. A/4615, Annexes I and II, emphasis added.

20. This is not to say that the FRY had no other motives in formulating its claim to continuity, such as the desire to keep all the SFRY's assets and diplomatic premises abroad, etc. However, the importance of these interests, which were offset in large part by the SFRY external debt and other unresolved issues, paled in comparison to the Milošević regime's need to reinforce its version of the facts surrounding the disintegration of the SFRY.

21. One of the hallmarks of the nationalist propaganda in the former Yugoslavia was the dehumanization of one's erstwhile neighbours by using derogatory epithets from the past. So, for instance, Serb nationalists refer to the Croats as Ustaše, while Croat nationalist refer to the Serbs as Chetniks. See generally O. Bartov, Mirrors of Destruction: War, Genocide and Modern Identity (2000), at 140; K. Kurspahić, Zločin u 19:30, Balkanski mediji u ratu i miru (2003) (in Bosnian).

23. Operation Deliberate Force, conducted from 30 August to 20 September 1995. See at http://www.afsouth.nato.int/factsheets/DeliberateForceFactSheet.htm.

24. General Framework Agreement for Peace in Bosnia and Herzegovina, initialled in Dayton on 21 November 1995 and signed in Paris on 15 December 1995.

25. It is important to note that the manipulation with numbers was an essential component of the collective narratives of all parties of the Yugoslav conflict, as a way of inducing self-victimization and greater sympathy in the international community. When it comes to the BiH conflict in particular, the Bosniak side has consistently maintained that the number of deaths during the war was in the 200,000–250,000 range. This number was advanced by BiH in its written pleadings – see Genocide case, Memorial, at 14, para. 2.1.0.8, which speaks of ‘around a quarter of a million . . . mainly Muslim but also Croat’ victims. It was also widely accepted in public discourse outside BiH. See, for example, a recent statement of the US Under-Secretary of State, Nicholas Burns, at a conference in Washington, DC, on 21 November 2005, available at http://www.state.gov/p/us/rm/2005/57189.htm, who put the number of dead in BiH at 250,000. Comprehensive estimates done by the ICTY demographics unit, however, show that the actual number of deaths is in the 100,000–110,000 range – see E. Tabeau and J. Bijak, ‘War-related Deaths in the 1992–1995 Armed Conflicts in Bosnia and Herzegovina: A Critique of Previous Estimates and Recent Results’, (2005) 21 European Journal of Population 187. This reduced figure is confirmed by the population losses study of the Research and Documentation Centre in Sarajevo (RDC), supra note 9, which puts the number of deaths at 97,207, with this number potentially growing, due to new research, by a maximum of 10,000. See also BBC News, ‘Bosnia war dead figure announced’, 21 June 2007, available at http://news.bbc.co.uk/2/hi/europe/6228152.stm.

The inflation of numbers was, of course, not confined solely to the Bosniak side. In the run-up to the Yugoslav conflict, Serb nationalists even more egregiously manipulated the numbers of Serbs killed at the Jasenovac extermination camp during the Second World War by the Ustaše – for an example of such manipulation, see Bulajić, supra note 6 – while Croat nationalist did the same with the so-called Bleiburg massacre. See also MacDonald, supra note 5, at 160–82. Serbian nationalists are also attempting to relativize the magnitude of the Srebrenica genocide, in which Bosnian Serb forces killed some 8,000 Bosnian Muslims, by asserting that some 3,000 Serb civilians were killed by the Bosniaks in the surroundings of Srebrenica, specifically in the Bratunac municipality, and that Srebrenica was consequently a tit-for-tat crime of revenge. See, e.g., B. Ivanisevic, ‘Oric's Two Years’, Human Rights Watch, 12 July 2006, available at http://hrw.org/english/docs/2006/07/12/serbia13761.htm. The RDC study dispels this Serbian narrative as a myth, showing that in the Bratunac area 119 Serb civilians and 424 Serb soldiers were killed during the conflict. See at http://www.idc.org.ba/project/the_myth_of_bratunac.html.

26. Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment of 11 July 1996, [1996] ICJ Rep. at 595.

27. Ibid., para. 41.

28. Ibid., para. 17.

29. Genocide judgment, supra note 1, para. 130.

30. Ibid., paras. 43 and 44.

31. Genocide case, Counter-Memorial, 22 July 1997. See, e.g., at 1079–82, esp. para. 8.1.1:

The reasons for establishing the Republic of Srpska do not lie in the ‘ideology of a Greater Serbia’, or in any plan created in Belgrade, but rather in the objective threats that the Serb people is under and in the religious and ethnic discrimination it is being subjected to in the territory under the Applicant's control. The creation of the Republic of Srpska has been motivated by the historical memory of the Serbs in Bosnia and Herzegovina, especially that of the genocide suffered in World War II, as well as in the political events in Bosnia and Herzegovina in 1990 and later, which culminated in armed attacks and genocide against the Serbs.

32. Genocide judgment, supra note 1, at para. 22.

33. See, e.g., Art. V(2) of Annex IV of the General Framework Agreement, which is the Constitution of Bosnia-Herzegovina.

34. Genocide judgment, supra note 1, at para. 18.

35. Ibid., paras. 19–23.

36. Ibid., para. 24.

37. Ibid., para. 20.

38. Ibid., para. 25.

39. See Voice of America News, ‘US Court Rules Former Bosnian Foreign Minister Eligible for Extradition’, 13 September 2006, available at http://www.voanews.com/english/archive/2006--09/2006--09-13-voa31.cfm?CFID=174511198&CFTOKEN=11209683. See also BETA News Agency, ‘Pronevera ili zaštita državnih interesa’, at http://ssla.oneworld.net/article/view/94819/1/2298?PrintableVersion=enabled (in Serbian), stating that Sacirbegovic himself defended his actions by saying that a part of the missing money was spent on the funding of the BiH legal team before the ICJ.

40. Radio Free Europe, ‘ICJ: Tužba za agresiju i genocid visi o koncu’ (ICJ: The aggression and genocide lawsuit hanging by a thread, in Bosnian), 23 May 2002, available at http://www.danas.org/programi/haaska/2002/05/20020523104350.asp; ‘Tužba BiH protiv Jugoslavije: Tuženje na rate’ (Bosnian lawsuit against Yugoslavia: Suing in instalments, in Bosnian), Dani, 25 October 2002, available at http://www.bhdani.com/arhiva/280/t28011.shtml.

41. See, for instance, the websites of two such private foundations (in Bosnian) at http://www.pravdazabih.ba and http://www.hdmagazine.com/Fond/Naslovna.htm.

42. See generally P. Bekker, ‘International Legal Aid in Practice: The ICJ Trust Fund’, (1993) 87 AJIL 659; C. Romano, ‘International Justice and Developing Countries (Continued): A Qualitative Analysis’, (2002) 1 Law and Practice of International Courts and Tribunals 539.

43. Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006).

44. LaGrand (Germany v. United States of America), Judgment of 27 June 2001, [2001] ICJ Rep. 466.

45. Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of 31 March 2004, (2004) 43 ILM 128, at 581.

46. International Legality of the Security Fence and Sections near Alfei Menashe, HCJ 7957/04, 15 September 2005.

47. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, (2004) 43 ILM 1009.

48. The Constitutional Court's decision to strike the case from its docket was delivered in March 2007. The case number is U 19/05, and the decision should become available shortly on the Court's website, at www.ccbh.ba. The Court's decision has been reported (in Bosnian) at http://www.nesradio.com/vijesti.php?vijest=11774&rub=1.

49. Even though all of the cases raised substantially the same issues, the Court decided not to join them but deal with them separately. The judgments are, however, virtually identical. For the sake of simplicity, all citations herein will be to Legality of Use of Force (Serbia and Montenegro v. Belgium), Application of 29 April 1999.

50. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Yugoslavia), Application of 2 July 1999.

51. Agreement on Succession Issues of the Former SFRY, 29 June 2001, (2002) 41 ILM 3.

52. See, e.g., infra note 54, the letter of FRY's Agent, Professsor Varady, withdrawing the FRY's counterclaims.

53. Quoted in Genocide case, CR 2006/12, at 12.

54. Genocide case, Withdrawal of Counter-claims by the Federal Republic of Yugoslavia, 20 April 2001.

55. Indeed, the FRY deposited a declaration of accession to the Convention on 8 March 2001, but with a reservation to Article IX which deals with the jurisdiction of the ICJ.

56. 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 and Herzegovina v. Yugoslavia), Application of 24 April 2001.

57. Genocide case, Initiative to the Court to Reconsider ex officio jurisdiction over Yugoslavia, 4 May 2001.

58. The UN Security Council adopted on 30 May 1992 its Resolution 757 (1992) stating that the claim by the FRY ‘to continue automatically the membership of the former SFRY in the UN was not generally accepted’. This statement was reiterated in the Security Council's Resolution 777 (1992) of 19 September 1992, coupled with the finding that the SFRY had ‘ceased to exist’. The Council then recommended to the General Assembly to decide that the FRY ‘should apply for membership in the UN and that it shall not participate in the work of the General Assembly’.

The latter adopted on 22 September 1992 its Resolution 47/1, where the UN organ considered that the FRY ‘cannot continue automatically the membership of the former SFRY in the UN’ and decided that the FRY ‘should apply for membership in the UN and that it shall not participate in the work of the General Assembly’. The General Assembly did not repeat the statement of the Security Council that the SFRY had ceased to exist.

After deciding, seven months later, in its Resolution 47/229 that the FRY shall not participate in the work of the Economic and Social Council, the General Assembly adopted on 20 December 1993 Resolution 48/88, where it referred to its Resolution 47/1 and urged ‘Member States and the Secretariat in fulfilling the spirit of that resolution, to end the de facto working status of Serbia and Montenegro’ (emphasis added). The Security Council returned to that subject in its Resolution 1022 (1995) of 22 November 1995, where it referred to ‘the successor States to the State formerly known as the SFRY’ and to ‘the fact that that State has ceased to exist’.

As interpreted by the United States at the occasion of the adoption of Resolution 777 (19 November 1992), this resolution ‘recommends that the General Assembly take action to confirm that the membership of the SFRY has expired and that because Serbia and Montenegro is not the continuation of the SFRY it must apply for membership if it wishes to participate in the UN’. The US representative said further that the provision in the resolution that the FRY should not participate in the work of the General Assembly ‘flows inevitably from the determination of the Council and the General Assembly that Serbia and Montenegro is not the continuation of the former Yugoslavia’ (UN Doc. S/PV.3116, 12 (emphasis added)). This interpretation was supported by the delegates of some other States in the Security Council. The representative of the United Kingdom stated that ‘as regards the need to submit an application for membership’ the FRY was ‘in precisely the same position as other components of the former SFRY’ (UN Doc. A/47/PV.7).

Conversely, there were statements by representatives of other member states, which explicitly or implicitly supported the claim of the then government of the FRY that the latter was identical with the SFRY. The representative of the Russian Federation interpreted the latter as not implying the exclusion of the FRY from the ‘membership of the UN, formally or de facto’ (UN Doc. S/PV.3116, at 3). The delegate of China shared the interpretation according to which the adoption of the resolution did not amount to the expulsion of ‘Yugoslavia’ and referred to the situation created by the decision as a ‘transitory arrangement’ (ibid., at 14).

59. Vitucci, ‘Has Pandora's Box Been Closed? The Decisions on the Legality of Use of Force Cases in Relation to the Status of the Federal Republic of Yugoslavia (Serbia and Montenegro) within the United Nations’, (2006) 19 LJIL 105, at 110–11.

60. The UN Under-Secretary-General for Legal Affairs issued his opinion on GA Resolution 47/1 of 29 September 1992, in which he found that ‘the only practical consequence that the resolution draws is that the Federal Republic of Yugoslavia . . . shall not participate in the work of the General Assembly,’ but that ‘the resolution neither terminates nor suspends Yugoslavia's membership in the Organization. Consequently, the seat and the nameplate remain as before . . . Yugoslav missions in the United Nations Headquarters and offices may continue to function and may receive and circulate documents . . . the Secretariat will continue to fly the flag of old Yugoslavia as it is the last flag of Yugoslavia used by the Secretariat. The resolution does not take away the right of Yugoslavia to participate in the work of organs other than the Assembly bodies. The admission to the United Nations of a new Yugoslavia under Article 4 of the Charter will terminate the situation created by resolution 47/1.’ UN Doc. A/47/485.

It is unclear to which ‘Yugoslavia’ the opinion refers when not using the official title ‘the Federal Republic of Yugoslavia’ and when determining that the representatives of the latter can ‘no longer’ participate in the work of the General Assembly and not sit behind the sign ‘Yugoslavia’, although ‘Yugoslavia's’ membership in the United Nations has neither been terminated nor suspended. It is therefore conceivable that some sort of ‘Yugoslavia’ went on existing as a state. In view of the instruction to fly the flag of the SFRY (the old Yugoslavia) and the fact that this flag had no symbolic meaning having been abolished by the makers the FRY Constitution proclaimed in 1992, it appears that some kind of fiction was maintained that a state existed, which was neither the SFRY nor the FRY, or, alternatively, that the SFRY still existed. Such a ‘common roof’ theory (Dachtheorie) tallies with the opinion of the delegate of China that the adoption of Resolution 47/1 did not amount to the expulsion of ‘Yugoslavia’ and his qualification of the arrangement as ‘transitory’, as well as with the statement of Romania that this resolution did not provide for ‘either the suspension or the exclusion of Yugoslavia from the UN.’ UN Doc. A/47/PV.7, at 192 (emphasis added).

61. See further V. Dimitrijević, ‘What was “Yugoslavia” between 27 April 1992 and 1 November 2000?’, in P. Hänni (ed.), Mensch und Staat: Festgabe der Rechtswissenschaftlichen Fakultät der Universität Freiburg für Thomas Fleiner zum 65. Geburtstag (2003), 17.

62. T. Treves, ‘The Expansion of the World Community and Membership of the UN’, (1995) 6 Finnish Yearbook of International Law 278.

63. 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 and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment of 3 February 2003, [2003] ICJ Rep. 7 (hereinafter the Revison judgment).

64. A ‘fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence’ – ICJ Statute, Art. 61(1).

65. Revision judgment, supra note 63, at para. 65.

66. Ibid., paras. 65–72.

67. See Revision judgment, supra note 63, at 53 (Dissenting Opinion Judge Dimitrijević).

68. This was so, inter alia, because despite their name, the only readily available jurisdictional basis in the NATO cases was again the Genocide Convention, and the NATO armed actions against the FRY could in no conceivable terms be qualified as genocide.

69. Legality of Use of Force (Serbia and Montenegro v. Belgium), Judgment of 15 December 2004, [2004] ICJ Rep. 279.

70. Ibid., paras. 45–91.

71. Which reads: ‘The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.’

72. Legality of Use of Force (Serbia and Montenegro v. Belgium), paras. 92–114.

73. See S. Olleson, ‘“Killing Three Birds with one Stone”? The Preliminary Objection Judgment of the International Court of Justice in the Legality of Use of Force Cases’, (2005) 18 LJIL 237, at 238.

74. Legality of Use of Force (Serbia and Montenegro v. Belgium), Order of 2 June 1999, [1999] ICJ Rep. 124.

75. Legality of Use of Force (Serbia and Montenegro v. Belgium), Judgment of 15 December 2004, [2004] ICJ Rep. 330, at 334 (Joint Declaration of Vice-President Ranjeva, Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal, and Elaraby):

We have referred also to the care that the Court must have, in selecting one among several possible grounds for a decision on jurisdiction, for the implications and possible consequences for other cases. In that sense, we believe that paragraph 40 of the Judgment does not adequately reflect the proper role of the Court as a judicial institution. The Judgment thus goes back on decisions previously adopted by the Court, whereas it was free to choose the ground upon which to base them and was under no obligation to rule in the present case on its jurisdiction ratione personae. Moreover, this approach appears to leave some doubt as to whether Yugoslavia was a party, between 1992 and 2000, to the United Nations Genocide Convention. Such an approach could call into question the solutions adopted by the Court with respect to its jurisdiction in the case brought by Bosnia-Herzegovina against Serbia and Montenegro for the application of the Genocide Convention. We regret that the Court has decided to take such a direction.

76. Ibid., at 341 (Judge Higgins, Separate Opinion).

77. Ibid., para. 16.

78. Ibid., para. 18.

79. Ibid., para. 17.

80. This was in fact stated before the Court by the Serbian Agent in the case. See Genocide case, CR 2006/12, at 12.

81. For an overview of some of the issues raised during the oral arguments, see A. Riddell, ‘Report on the Oral Proceedings in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro): Selected Procedural Aspects’, (2007) 20 LJIL 405–40.

82. Genocide judgment, supra note 1, at paras. 121–40.

83. Ibid., para. 135.

84. See further S. Wittich, ‘Permissible Derogation from Mandatory Rules? The Problem of Party Status in the Genocide Case’, (2007) 18 EJIL 591.

85. Genocide judgment, supra note 1, at paras. 291–297.

86. Ibid., paras. 391–415.

87. Ibid., paras. 425–50.

88. Ibid., para. 463.

89. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment (merits) of 19 December 2005.

90. See the Genocide judgment, supra note 1, paras. 147, 277, 319, 328, 334, 354.

91. See M. Milanović, ‘State Responsibility for Genocide: A Follow-Up’, (2007) 18 EJIL 669.

92. See also A. Gattini, ‘Breach of the Obligation to Prevent and the Reparation Thereof in the ICJ's Genocide Judgment’, (2007) 18 EJIL 695.

93. See, however, C. Kreß, ‘The International Court of Justice and the Elements of the Crime of Genocide’, (2007) 18 EJIL 619.

94. See, e.g., W. Schabas, ‘Whither Genocide? The International Court of Justice Finally Pronounces’, (2007) 9 Journal of Genocide Research 183.

95. See N. Bogovic, ‘Presuda za cepanje ili uramljivanje’, Danas, 3–4 March 2007, available (in Serbian) at http://www.danas.co.yu/20070303/vikend2.html.

96. ‘Genocide ruling sparks anger’, Star, 27 February 2007, available at http://www.thestar.com/article/186004.

97. N. Wood, ‘Bosnian Muslims View Ruling as Another Defeat’, New York Times, 27 February 2007.

98. ‘Judgments on a verdict’, BBC Monitoring, 27 February 2007, available at http://www.tol.cz/look/TOL/article.tpl?IdLanguage=1&IdPublication=4&NrIssue=207&NrSection=1&NrArticle=18369.

99. See, e.g., A. Roknic, ‘Serbia Has No Reason to Celebrate’, IWPR Tribunal Update, No. 491, 2 March 2007, available at http://iwpr.net/?p=tri&s=f&o=333776&apc_state=henftri333778.

100. D. Matovic, ‘Prošlost pred nama’ (The past before us – in Serbian), Politika, 4 March 2007.

101. D. Stegic, ‘Banja Luka – Presuda Međunarodnog suda pravde u Hagu pretpostavka za bolje odnose u regionu’, Voice of America, 26 February 2007, available (in Serbian/Bosnian) at http://www.voanews.com/bosnian/archive/2007--02/2007--02-26-voa4.cfm.

102. Ibid.

103. See ‘Najviše građana RS za izručenje’, B92, 23 July 2007, available at http://www.b92.net/info/vesti/index.php?yyyy=2007&mm=07&dd=23&nav_category=167&nav_id=256395.

104. Art. II of the Genocide Convention defines genocide as ‘any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.’ See generally W. Schabas, Genocide in International Law: The Crime of Crimes (2000).

105. Legality of Use of Force (Serbia and Montenegro v. Belgium), Judgment of 15 December 2004, para. 128 (citations omitted).

106. Genocide judgment, supra note 1, para. 147.

107. See generally M. Cherif Bassiouni, Crimes against Humanity in International Criminal Law (1999).

108. In the words of the President,

[T]he Court has no authority to rule on alleged breaches of obligations under international law other than genocide, as defined by the Genocide Convention. This is important to understand because in this case we were confronted with substantial evidence of events in Bosnia and Herzegovina that may amount to war crimes or crimes against humanity – but we had no jurisdiction to make findings in that regard. We have been concerned only with genocide – and, I may add, genocide in the legal sense of that term, not in the broad use of that term that is sometimes made. (Statement to the Press by H.E. Judge Rosalyn Higgins, President of the International Court of Justice, 26 February 2007, available at http://www.icj-cij.org/court/index.php?pr=1898&pt=3&p1=1&p2=3&p3=1)

109. See also C. Kress, ‘The Crime of Genocide under International Law’, (2006) 6 International Criminal Law Review 461, at 463.

110. See, e.g., D. Luban, ‘Calling Genocide by Its Rightful Name: Lemkin's Word, Darfur and the UN Report’, (2006–2007) 7 Chicago Journal of International Law 303, at 304–6.

111. Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Geneva, 25 January 2005, available at http://www.un.org/News/dh/sudan/com_inq_darfur.pdf.

112. See, e.g., ibid. at para. 642:

The conclusion that no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or through the militias under their control, should not be taken as in any way detracting from the gravity of the crimes perpetrated in that region. Depending upon the circumstances, such international offences as crimes against humanity or large scale war crimes may be no less serious and heinous than genocide. This is exactly what happened in Darfur, where massive atrocities were perpetrated on a very large scale, and have so far gone unpunished.

113. All quoted according to Luban, supra note 110, at 304.

114. See, e.g., M. Corder, ‘U.N. Court Clears Serbia of Genocide’, Washington Post, 27 February 2007.

115. The difficulty with proving genocidal intent in BiH is well evidenced, for example, by the ICTY's acquittal on the charge of genocide of Momcilo Krajisnik, the wartime Speaker of the Bosnian Serb parliament and of the highest officials of the Republika Srpska – see Prosecutor v. Krajisnik, Case No. IT-00–39, Trial Chamber Judgement of 27 September 2006, and by the ICTY's recent reversal of the trial chamber judgment in the Blagojevic case, on the point that the defendant was aware of the genocidal intent of the VRS leadership in Srebrenica and was guilty of aiding and abetting genocide – see Prosecutor v. Blagojevic, Case No. IT-02–60, Appeals Chamber Judgement of 9 May 2007. The finding of genocide was made by the ICTY in Prosecutor v. Krstić, Case No. IT-98–33, Appeals Chamber Judgement of 19 April 2004, but even Krstić was finally convicted only as an aider and abettor. See also Schabas, ‘Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the Former Yugoslavia,’ (2001) 26 Fordham International Law Journal 907.

116. Genocide judgment, supra note 1, at paras. 368–369.

117. One of us has argued before that the best starting point for BiH and the ICJ would have been the Decision on the Motion for Judgement of Acquittal of 16 June 2004 of the ICTY Trial Chamber in the Milošević case, Case No. IT-02–54, paras. 117 et seq., which lists several municipalities in which a reasonable trial chamber could find that genocide was committed, and do so beyond reasonable doubt. See M. Milanović, ‘State Responsibility for Genocide’, (2006) 17 EJIL 553, at 596 n. 243. This approach would have probably worked best if the case were further narrowed, to the period of May–August 1992, during which, as previously stated, the Bosniak community sustained more than half of all civilian casualties of the entire war. See supra note 9.

118. Prosecutor v. Milomir Stakić, Case No. IT-97–24-T, Trial Chamber Judgement of 31 July 2003; Appeals Chamber Judgement of 22 March 2006.

119. Genocide judgment, supra note 1, paras. 399–407.

120. See, e.g., Genocide case, CR 2006/2, at 28 et seq.; CR 2006/4, at 21 et seq.; CR 2006/5, at 19–20, 33 et seq.; Reply of Bosnia and Herzegovina, 23 April 1998, at 77–373.

121. Genocide judgment, supra note 1, paras. 202–210, 370–376.

122. Prosecutor v. Stanišić and Simatović, Case No. IT-03–69; Prosecutor v. Perišić, Case No. IT-04–81.

123. Milanović, supra note 117, at 603.

124. Genocide case, CR 2006/23.

125. Ibid., CR 2006/22.

126. See further Milanović, supra note 91.

127. See also R. Teitelbaum, ‘Recent Fact-Finding Developments at the International Court of Justice’, (2007) 6 Law and Practice of International Courts and Tribunals 119.

128. Genocide judgment, supra note 1, para. 155.

129. Genocide case, CR 2006/11, p. 36, para. 20 (trans. I. Pellet):

Of course, this does not however mean that Serbia and Montenegro is free of any obligation to provide satisfaction to Bosnia and Herzegovina in other forms. Given the judicial context of the present case, the most natural mode of satisfaction, that which springs to mind immediately, also the most common in such circumstances, is obviously a formal declaration by this Court that Serbia and Montenegro has breached its obligations under Articles I to V – inclusive – of the Convention. This is also what Bosnia and Herzegovina asked of you in its Reply and what it continues to request you to decide in this regard . . . (emphasis added, footnotes omitted)

130. Professor Tomuschat argues that the Court's reasoning on reparations is one of the most serious faults of the Genocide judgment, and that is a sentiment with which we entirely agree – see C. Tomuschat, ‘Reparation in Cases of Genocide’, (2007) 5 Journal of International Criminal Justice 905. We disagree with him, however, when he says that the Court was ‘fairly misleading’ in claiming that the applicant itself suggested a formal declaration as an appropriate remedy (ibid., text at notes 16 and 17). Even though Professor Tomuschat correctly states that the applicant's formal submissions to the Court contained a generic claim to compensation, which did not exclude any form of satisfaction, the applicant's own counsel did actually propose a declaratory remedy for a breach of the duty to prevent genocide, as recounted in the preceding footnote.

132. See, e.g., ‘Londonski susreti dr. Harisa Silajdžića’, Oslobodjenje, 6 June 2007.

133. See ‘2 Bosnian Presidents Ask U.N. to Help Eliminate Bosnia's Ethnic Division’, International Herald Tribune, 28 June 2007. See also BIRN, ‘Bosnian Presidency Members Call for Abolition of Entities’, 18 June 2007, available at http://www.birn.eu.com/en/87/15/3335/; ‘Zbog haške presude ponovo razdor u Predsjedništvu’, Oslobodjenje, 20 July 2007.

134. See B92, ‘Anketa: Ne odustati od tužbe’, 27 April 2007, available at http://www.b92.net/info/vesti/index.php?yyyy=2007&mm=04&dd=27&nav_category=167&nav_id=244148.

135. See R. Lemkin, Axis Rule in Occupied Europe (1944). See also S. Power, A Problem from Hell: America and the Age of Genocide (2002), at 1–85; Luban, supra note 110, at 309–18.

136. See Luban, supra note 110.

137. Mamdani persuasively argues, for instance, that this is the principal reason for using the word ‘genocide’ to describe the Darfur conflict. See M. Mamdani, ‘The Politics of Naming: Genocide, Civil War, Insurgency’, (2007) 29 London Review of Books, available at http://www.lrb.co.uk/v29/n05/mamd01_.html.

138. See further MacDonald, supra note 5, at 39–62, 160–82. In the Serbian context see also J. Byford, ‘When I Say “the Holocaust” I Mean “Jasenovac”‘, (2007) 37 East European Jewish Affairs 51.

139. Strangely enough, a possible expansive interpretation of the crime of genocide by the court for Cambodia may be facilitated by the fact that when the Genocide Convention was implemented in domestic Cambodian law, the ‘as such’ clause of Article II (supra note 104), which refers to the protected group and calls for a restrictive interpretation as an element of mens rea, has been translated as ‘such as’, i.e. as referring by way of example to the five criminal acts which comprise the actus reus of genocide. See the Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006), available at http://www.eccc.gov.kh/english/cabinet/law/4/KR_Law_as_amended_27_Oct_2004_Eng.pdf. See also this listserve post by Craig Etcheson, dated 10 October 2001, at http://listserv.buffalo.edu/cgi-bin/wa?A2=ind0110&L=justwatch-l&D=1&O=D&P=27391. A stand-alone interpretation of this provision could be much more expansive than that of Article II of the Convention by the international courts and tribunals. Coincidentally, the Criminal Code of the former SFRY (Art. 141), which was in force in both BiH and Serbia during the BiH conflict, actually omitted the ‘as such’ clause altogether from the definition of genocide, with this fault persisting in the Criminal Code of Bosnia and Herzegovina which is currently in force (Art. 171), while it was rectified in the new Criminal Code of Serbia (Art. 370).

* Vojin Dimitrijević is a professor at the Union University School of Law, Belgrade, and director, Belgrade Centre for Human Rights. He served as a judge ad hoc in the Genocide – Revision case before the International Court of Justice. Marko Milanović, LL B (Belgrade), LL M (Michigan), Ph.D. candidate (Cambridge), served from September 2006 to May 2007 as law clerk to Judge Thomas Buergenthal of the International Court of Justice, who recused himself from the consideration of the Genocide case. As a result, the author was not involved with any aspects of the Court's consideration of the Genocide case. All opinions expressed in this article are the authors’ own and should in no way be attributed to the ICJ.

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Leiden Journal of International Law
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