The Genocide Convention case: confusion or clarity? 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 26 February 2007, General List No. 91.

• Author: Pillai, Priya

This article analyzes the judgment of the International Court of Justice delivered on 26 February 2007 dealing with the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and State responsibility. If highlights the important aspects of the judgment, and refers to the history of the proceedings before the court. This article is meant to serve as a comprehensive reference point to the issues that arose in the judgment, but is not exhaustive in its analysis on all issues.

Introduction

On 26 February 2007, the International Court of justice ('ICJ') rendered its judgment in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits), (1) which bad been pending for over a decade. The judgment dealt with many issues, revisiting aspects of the jurisdiction of the ICJ in the case, an assessment of obligations under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide ('Genocide Convention') (2) and the attribution of State responsibility in this regard. Also of interest is the interaction between the ICJ, a tribunal for the adjudication of disputes between states, and the International Criminal Tribunal for the Former Yugoslavia ('ICTY'), an international tribunal adjudicating matters of individual criminal responsibility for crimes perpetrated in the former Yugoslavia.

1. Challenges to Jurisdiction

In the proceedings relating to the merits of this case, the jurisdiction of the 1CJ was challenged by Serbia in the Initiative to the Court to Reconsider Ex Officio jurisdiction over Yugoslavia ('Initiative') filed on 4 May 2001. (3) While the 1CJ had issued a decision asserting jurisdiction in 1996, (4) the Initiative brought up further grounds to challenge jurisdiction. In brief, the contention of the respondent was that due to a change in circumstances, it could not be considered a member of the United Nations ('UN') when proceedings were initiated and, therefore, the ICJ did not have jurisdiction over it. The counter to this was that since the 1996 decision related to jurisdiction, as per the principle at res judicata, the court was prevented from reopening this issue and was bound by its previous decision.

In order to assess the argument and response of the ICJ, it is relevant to examine briefly the circumstances surrounding the disintegration of the former Yugoslavia and the history of proceedings before the ICJ, and then the merits of the argument.

1. Disintegration of the Socialist Federal Republic of Yugoslavia

   The Socialist Federal Republic of Yugoslavia ('SFRY') consisted of the entities of Bosnia and Herzegovina, Croatia, Slovenia, Macedonia, Montenegro and Serbia. Due to civil conflict, the break-up of the SFRY commenced in 1991 with the declaration of independence of Slovenia and Croatia. By 1993, the constituent regions of the SFRY had declared independence. However, the Federal Republic of Yugoslavia ('FRY', now known as Serbia) asserted its claim as a continuation of the SFRY, and hence also claimed a continuation of membership of the UN. This claim was contested by the other republics of the former Yugoslavia, and the Security Council' (5) and the General Assembly (6) denied the right of the FRY to take the place of the SFRY in proceedings before these organs. However, the status of the FRY remained unclear, with the UN Under-Secretary-General for Legal Affairs asserting that this was a suspension but not termination of membership. (7)

   Ultimately, there was a great deal of confusion regarding the status of the FRY before the UN. However, in November 2000 Serbia was formally admitted as a member of the UN. (8)

2. Background of Proceedings

   In order to assess the merits of the Initiative, the background to the proceedings and the past decisions of the ICJ are relevant.

   On 20 March 1993, Bosnia filed a case against Serbia alleging violations of the Genocide Convention, requesting the court for interim measures. These were granted by the court in its order for provisional measures of 8 April 1993, (9) which unanimously directed the parties to take measures to prevent the commission of genocide.

   Subsequent to the filing of preliminary objections by the respondent, the court in its order of 11 July 1996 found that it had jurisdiction on the basis of art IX of the Genocide Convention. (10) This judgment will be analyzed in relation to the Genocide Convention Case (Merits) to assess claims of lack of jurisdiction and res judicata.

   On 24 April 2001, Serbia filed an application for revision of the 1996 judgment, contending that its admittance as a member of the UN in November 2000 was a new fact requiring revision of the judgment. However, the court in 2003 found that the application for revision did not have merit, as the strict requirements for a revision proceeding under the Statute of the International Court of Justice ('the Statute') (11) had not been met. (12)

   Simultaneously, but in separate proceedings, Serbia had petitioned the ICJ claiming responsibility of North Atlantic Treaty Organization ('NATO') countries for the bombing of Belgrade. The court issued a judgment on preliminary objections regarding jurisdiction in 2004. (13) Significantly, the ICJ found that Serbia was in fact not a continuator state of the SFRY from 1992 to 2000 and that therefore it did not have access to the court by virtue of non-membership of the UN. (14) Hence, the court lacked jurisdiction and proceedings were dismissed.

3. Issues for Determination

   There were many inter-related, though distinct issues for consideration, in assessing the reopening of the jurisdiction question. At the heart of the challenge was whether Serbia's membership of the UN would affect the case before the ICJ. Serbia argued that as it was accepted for membership to the UN only in 2000, in the period between 1992 and 2000 it was not a party to the Statute or the Genocide Convention. By virtue of this, the ICJ should not have jurisdiction over the proceedings. (15) In response, Bosnia stressed that as this issue was not argued previously, Serbia was estopped from bringing it up. Bosnia also contended that these matters had been decided in the Genocide Convention Case (Preliminary Objections) and were res judicata. (16) The court emphasised that the suggested acquiescence of the party did not preclude the court from addressing the matter. (17)

   The approach of the majority was first to determine whether the question of membership had been decided previously, and if so, then whether the principle of res judicata would prevent the court from going into the matter. If it had not been decided, only then would it be open to the court to make its determination of the matter. This approach involved an appreciation of the ambit and scope of res judicata, as well as the potential impact of the question of membership upon the standing of the party.

   The findings on the issue of jurisdiction came in for severe criticism by many other members of the court. The decision regarding jurisdiction had five members of the court dissenting, in no uncertain terms. (18)

   (i) lus Standi, Jurisdiction and the Res Judicata Principle

   (a) Position of the Court

   At the outset, the court emphasised that the question was one of access to the ICJ, by virtue of capacity to be party to proceedings. This was distinct from consent of the parties to jurisdiction, and was a step preceding a determination on that point. (19)

   The court then proceeded to assess the application of the res judicata principle to questions of jurisdiction brought up in decisions of the court. The court located the res judicata principle in arts 59, 60 and 61 of the Statute. (20) The court elaborated on the reasons for the use of the res judicata doctrine as primarily twofold: the stability of legal relations and the finality of judgments as between the parties themselves. (21) The majority also held that there was no distinction between judgments on merit and those relating to jurisdiction by way of preliminary objections in applying the res judicata principle. (22) In elaborating upon, the situations in which res judicata might apply, the court emphatically stated that when an issue had not been decided upon 'expressly or by necessary implication', then it will not. have the force of res judicata. (23) Res judicata needed to be assessed by keeping the context of the judgment in mind (24). More illuminating was the application of this principle to previous decisions of the court.

   With regard to the preliminary orders of 1993, the court held that there was no question of res judicata applying as the question of membership was neither raised, nor determined. Further, the Application for Revision Case had dismissed the request for revision as it reasoned that non-membership of the UN was not a new fact at the time of the judgment, ie in 1996. As a result, according to the court, the issue of membership was also not discussed in the Application for Revision Case. Hence, resjudicata did not apply by virtue of these decisions, thus not barring the court from assessing this matter.

   The determination of the court with respect to resjudicata regarding the Genocide Convention Caw (Preliminary Objections) was pivotal. The majority emphasised that the ability to seize the court was distinct from that of the jurisdiction of the court. However, it held that as the Genocide Convention Case (Preliminary Objections) had found that the court had jurisdiction under art IX of the 1948 Genocide Convention, there was a 'necessary implication' regarding capacity of the parries to approach the court. (25) The ICJ held that it was therefore barred by resjudicata from looking into whether the respondent had standing to approach the court. (26) The majority held that the operative part of the judgment was resjudicata. (27) The court also relied upon the statement in the Genocide...