Bosnia and Herzegovina v. Serbia and Montenegro

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Peace Palace at the Hague
Peace Palace at the Hague

The Bosnian genocide case at the International Court of Justice (also known as Bosnia and Herzegovina v. Serbia and Montenegro; first filed as Bosnia and Herzegovina v. Yugoslavia in 1993; de jure name Application of the Convention on the Prevention and Punishment of the Crime of Genocide) was a landmark court case where for the first time in the 60-year history of the International Court of Justice (ICJ) one state, Bosnia and Herzegovina, accused another state, Serbia and Montenegro, of genocide. The case was filled by Dr. Francis Boyle, an adviser to Alija Izetbegović during the Bosnian War.

On February 26, 2007 the ICJ ruled that Serbia had not committed genocide.[1] But in its verdict, the Court found that Serbia had violated the Genocide Convention. Serbia, in the first place, failed to prevent it, and afterwards failed to punish the perpetrators and surrender them to the ICTY. After the trial, Serbia became the first state in the world to be found by a court to have violated the Genocide Convention.[2]

The case before the ICJ, the UN's highest judicial body, which exclusively hears disputes between states, related to Serbia's alleged attempts to wipe out the Bosnian Muslim population of Bosnia. The hearings at the court in The Hague, Netherlands, finished on May 9, 2006.

Contents

[edit] Course of trial

Following is a schedule of the trial:

[edit] First round of argument

[edit] Hearing of experts, witnesses and witness-experts

[edit] Second round

[edit] Significance of the case for international law
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The Bosnian genocide case at the ICJ is perhaps one of the most important legal cases for international law since the Nuremberg Trials after World War II. It is taking place 55 years after the convention for the prevention of genocide has been ratified. As a landmark case it serves to probe the applicability, capability and validity of the ICJ to enforce the genocide convention in this case and in the future.

The case also raises several philosophical issues, one of which is the concept of whether the whole state can be held responsible for genocide. The critics point out that state responsibility for crimes of genocide inherently serves to establish a collective guilt rather than individual accountability for crimes committed. Some argue that exactly due to this discredited notion of the "collective guilt" changes took place in social and legal systems in last 50 years that led to empowerment of individual and human rights over the rights of the state. As a result those changes empowered human and individual rights and led to establishment of such institutions as the ICTY and ICC that serve to hold individuals accountable for the most severe crimes including genocide. Critics further claim that at a time when individual accountability takes precedence over the discredited notion of the collective guilt, applicability of the ICJ in deciding if a particular nation can be convicted of genocide becomes questionable.

The contrasting philosophy argues that ICJ's purpose is not to establish collective guilt, but rather to work in unison with such institutions as the ICC and ICTY, so as to create conditions where individuals would act as responsible members of the state in respect to the conduct of states that represent them. Proponents of this philosophy also point out that given the rise of human and individual rights in the last 50 years, individuals became owners of the modern day state rather than subjects or indistinguishable servants of the state (or kingdom). In their view citizenship within a particular state has many privileges as it has its duties. They argue that if the state is determined responsible for genocide it does not imply the collective guilt of its citizens, but a common assumption that its citizens would be responsible for reparations of effects and distribution of costs caused by genocide and not the distribution of guilt for genocide.

As described by Professor Mark Drumbl in regard to Bosnian genocide case at the ICJ:

“ [T]he deliberate choice by international criminal justice institutions to selectively blame a handful of individuals . . . erases . . . the involvement of ordinary [people] . . . This, in turn, leads to a retributive shortfall, in so far as only a few people receive their just deserts, while many powerful states and organizations avoid accountability. ”

[edit] Verdict

In its verdict, the Court found by 13 votes to 2 that Serbia had not committed or conspired to commit genocide.[3] It also concluded by 11 votes to 4 that Serbia was not complicit in genocide.[3] It did however find, by 12 votes to 3, that Serbia had violated the obligation under the Genocide Convention to prevent the genocide that occurred at Srebrenica.

The judgment delivered by the International Court of Justice confirmed that the Srebrenica massacre committed by Bosnian Serb forces (Army of Republika Srpska) constituted an act of genocide.[4]

Serbia’s violations of its obligations stem not only from the Convention on the Prevention and Punishment of the Crime of Genocide but also from two "provisional protective measures" issued by the International Court of Justice in April and September 1993. The then Federal Republic of Yugoslavia was ordered explicitly "to do everything in its power to prevent the crimes of genocide and to make sure that such crimes are not committed by military or paramilitary formations operating under its control or with its support." The judges concluded that despite this explicit order, Serbia did nothing in July 1995 to prevent the Srebrenica genocide, although it “should normally have been aware, of the serious danger that acts of genocide would be committed.”[5]

In reaching this decision, the court referred to the standard set by Nicaragua v. United States,[6] in which the United States was found not to be legally responsible for the actions of the Contra guerillas despite their common goal and widely-publicised support.

Furthermore, according to the ICJ’s judgement ‘it is established by overwhelming evidence that massive killings in specific areas and detention camps throughout the territory of Bosnia-Herzegovina were perpetrated during the conflict’ and that ‘the victims were in large majority members of the protected group, the Bosniaks, which suggests that they may have been systematically targeted by the killings.’ Moreover, ‘it has been established by fully conclusive evidence that members of the protected group were systematically victims of massive mistreatment, beatings, rape and torture causing serious bodily and mental harm, during the conflict and, in particular, in the detention camps.’ The Court accepted that these acts, on the part of the Serb forces, had been committed, but that there was inconclusive evidence of the specific intent to destroy the Bosniaks as a group in whole or in part. This includes the period up to 19 May 1992, when Bosnian Serb forces were under the formal control of Milosevic’s Serbia and Montenegro / Federal Republic of Yugoslavia.[7]

ICJ President Rosalyn Higgins noted that while there was substantial evidence of events in Bosnia and Herzegovina that may amount to war crimes or crimes against humanity, the Court had no jurisdiction to make findings in that regard, because the case dealt "exclusively with genocide in a limited legal sense and not in the broader sense sometimes given to this term."[8][9]

The Court further decided that, following Montenegro's declaration of independence in May 2006, Serbia, Serbia and Montenegro's successor, was the only Respondent party in the case, but that "any responsibility for past events involved at the relevant time the composite State of Serbia and Montenegro".[10]

[edit] See also

[edit] References

  1. ^ "Serbia cleared of genocide, failed to stop killing", Reuters, February 26, 2007.
  2. ^ "SERBIA FOUND GUILTY OF FAILURE TO PREVENT AND PUNISH GENOCIDE", Sense Tribunal, February 26, 2007.
  3. ^ a b International Court of Justice Press Release 2007/8
  4. ^ Courte: Serbia failed to prevent genocide, UN court rules. Associated Press (2007-02-26).
  5. ^ "SERBIA FOUND GUILTY OF FAILURE TO PREVENT AND PUNISH GENOCIDE", Sense Tribunal, February 26, 2007.
  6. ^ Bosnia and Herzegovina v. Serbia and Montenegro - Judgment
  7. ^ The International Court of Justice and the decriminalisation of genocide Dr Marko Attila Hoare
  8. ^ Courte: Serbia failed to prevent genocide, UN court rules. Associated Press (2007-02-26).
  9. ^ "SERBIA FOUND GUILTY OF FAILURE TO PREVENT AND PUNISH GENOCIDE", Sense Tribunal, February 26, 2007.
  10. ^ Statement of the President of the Court

[edit] External links

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