International Court of Justice as a forum for genocide cases.

• Author: Quigley, John
• Position: International Conference in Commemoration of the Sixtieth Anniversary of the Negotiation of the Genocide Convention

The international community, in drafting the Genocide Convention in 1948, included a submissions clause that provided for jurisdiction in the International Court of Justice (ICJ) against a state that might violate the Convention. (1) The drafters were not entirely clear in their wording, however, and questions arose as to whether the submissions clause applied only to a state's obligation to prevent and punish genocide committed by others, or whether it applied to a state's obligation to avoid committing genocide itself as well.

The Genocide Convention was directed primarily against individuals, making genocide punishable at the level of the individual perpetrator. The Genocide Convention, in its substantive provisions, reads like a criminal law document, defining the offense of genocide in terms of an actus reus and mens rea. The Genocide Convention requires states to prevent genocide, and--if it is committed in a state's territory--to punish it.

Throughout the drafting proceedings, the United Kingdom and Belgium sought to include language to make it clear that a state must itself not commit genocide. The United Kingdom and Belgium failed to secure a reference to such an obligation in several of the substantive provisions. They did manage, however, to gain the insertion in the submissions clause of a phrase that appears to confer jurisdiction on the ICJ over a suit against a state for its own perpetration of genocide. (2)

The issue was not tested until 1993 when Bosnia sued Yugoslavia in the ICJ, accusing Yugoslavia of failing to prevent and punish genocide, and of perpetrating it. In 1996, the ICJ decided that the Genocide Convention gave the ICJ jurisdiction over a suit alleging a state's perpetration of genocide.

This essay recounts how the Court arrived at that conclusion, but also assesses the broader jurisdictional picture for the ICJ with regard to acts that may be classified as genocide or that may be unlawful under a different legal category. En route, the essay considers the efficacy of ICJ jurisdiction on these matters and the Court's treatment of the issue that sharply raised the jurisdictional issue in Bosnia's suit against Yugoslavia--namely, ethnic cleansing.

1. JURISDICTIONAL BASES OTHER THAN GENOCIDE

   The jurisdictional bases for the ICJ to deal with atrocities are scant. Unless both the potential applicant state and the potential respondent state have filed declarations under Article 36(2) of the Court's Statute, submitting themselves to jurisdiction for any and all international legal questions, jurisdiction must be grounded in a treaty. (3) With regard to war and peace issues, and to issues of individual rights, one finds few treaties that contain a submissions clause. And even when one finds a submissions clause, reservations are liberally filed to it.

   This was the jurisdictional wasteland that confronted Bosnia when it filed an application against Yugoslavia in 1993, seeking a judicial forum to stop atrocities connected with what was being called "ethnic cleansing" in Bosnia. The Genocide Convention did, at least arguably, give the Court jurisdiction over state-perpetrated genocide, but it was anyone's guess whether the Court--even if it found jurisdiction--would consider the facts being alleged by Bosnia to constitute genocide.

   Bosnia's filing represented the first time a state had ever sought a judicial injunction against ongoing, widespread atrocities being committed against a civilian population. There was little basis on which to predict how the ICJ would deal with the matter.

2. GENOCIDE

   Genocide had not been defined substantially beyond what was written in the Genocide Convention in 1948. No international court had been created that might have entertained penal prosecutions against individuals for genocide. One case in Israel had been adjudicated under a statute based on--but somewhat different from--genocide as defined in the Genocide Convention. (4) One case in Cambodia had been adjudicated under the Genocide Convention, but the Cambodian court had done little to elaborate the parameters of genocide. (5)

   As a result, there was little learning available either on the legal content of genocide, or on the question of whether, even if it could be shown that a state had committed genocide, jurisdiction would lie in the ICJ.

   Beyond all that, of course, lay the uncertain power of the ICJ to gain implementation of any order it might issue. The power identified in the U.N. Charter for the U.N. Security Council to act to compel compliance with an order of the ICJ had never been tested. (6) And even though the ICJ had been able to gain some compliance with its decisions prior to that time, this case involved war, probably the most difficult issue on which to secure compliance by an unwilling defendant state.

   Moreover, an interim order, even if obtained, was of uncertain significance. By Bosnia's allegation, the Bosnian Serb militia was then committing the atrocities with Yugoslavia's connivance. In light of this, would an interim order have any impact on Yugoslavia or on the Bosnian Serb militia? As of 1993, the ICJ had not decided whether its interim orders were binding on the state against which they were issued. So Yugoslavia might have plausibly declined to comply without putting itself in a position of violating international law. (7) Additionally, the possible impact on the international community was uncertain. It was unclear whether any interim order against Yugoslavia telling it to stop committing genocide would spur any action at the international level that might help end the atrocities.

   Nonetheless, Bosnia sought and gained an interim order on April 8, 1993, in which the Court recognized that Yugoslavia was, at the least, failing to prevent genocide in Bosnia and requesting that Yugoslavia cease what it was doing. (8) Bosnia returned to the ICJ in August 1993, explaining that Yugoslavia was failing to comply, and the Court granted another interim order calling on Yugoslavia to implement the April 8 order. (9)

3. PROOF OF FACTS OF GENOCIDE

   Beyond all the uncertain legal issues lay the difficulty of proving facts. There had been a U.N. investigation, and it had come to a conclusion adverse to Yugoslavia. It even utilized the phrase "ethnic cleansing." (10) If it could be shown that atrocities were being committed in Bosnia and that those atrocities could be characterized as genocide, the problem of proving the responsibility of Yugoslavia remained.

   The ICJ had previously been criticized in 1984 for allowing itself to be drawn into a case that concerned an ongoing military conflict. In that case, the United States agued that Nicaragua's complaint against it should be deemed inadmissible because the Court could not adequately determine what was occurring on the ground in Central America. (11) After the ICJ decided that the suit was admissible, the United States withdrew from the case and subsequently withdrew its Article 36(2) declaration of acceptance of the Court's jurisdiction, as well.

   Some of the evidence that Bosnia presented to the ICJ was newspaper clippings. Judge Shahabudeen, in a separate opinion in regard to the order of September 13, 1993, averted to the use of media reports by the United States in the Tehran Hostages case. (12) Nicaragua too, in its case against the United States, had relied on media accounts to support its allegations. (13) Judge Shahabudeen thought it permissible to accept any source of information. The media material was adduced largely to demonstrate Yugoslavia's involvement with atrocities being committed by the Bosnian Serb militia. (14)

   On September 13, 1993, the ICJ's issuance of a second interim order in Bosnia's favor strongly suggested that Yugoslavia was not in compliance with the April 8 interim order, meaning that it was failing to prevent genocide. Judge Shahabudeen, in a separate opinion attached to the September 13 order said: "The evidence warrants a finding of nonimplementation against Yugoslavia." (15) Judge Weeramantry, also in a separate opinion, described in some detail the evidence presented by Bosnia from U.N. observers, from NGOs attesting to mass atrocities against the Bosnian Muslims, and from the Serbian government attesting to its continued provision of aid to the Bosnian Serb militia. (16)

   Bosnia was supplying the ICJ not only with factual information, but with legal arguments as well. In its September 13 order, the ICJ addressed Yugoslavia's complaints of an "unending flood of sometimes heavy documentation." (17) The Court said that the submission by the Applicant of a series of documents up to the eve of, and even during, the oral proceedings of August 1993 was "difficult to reconcile with an orderly progress of the procedure before the Court." (18) The September 13 order concluded, however, that the Court, "taking into account the urgency and the other circumstances of the matter, considers it possible to receive the documents in question." (19)

   Yugoslavia had a point in asserting that Bosnia was filing written submissions in more than the usual quantity. In fact, during the month of August, Bosnia made eight new filings of factual information or legal argumentation. In the typical case before the ICJ, a state would file only its application and nothing more until memorials were due.

   The material being filed was necessary to prove that atrocities were continuing, and to examine the many unresolved legal issues. Additionally, some of the filings related to the political situation, as a plan emerged in the spring of 1993 to divide Bosnia territorially along ethnic lines. This development was important to Bosnia's contention that a second interim measures order was needed.

   One of the documents Bosnia submitted in this flurry of filings was a substantial memorandum I prepared on the concept of complicity, as applied to a state facilitating genocide being committed by a non-state entity. (20) At this time...