Bosnian Genocide Case

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The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), case 91, International Court of Justice (ICJ) Judgement returned on February 26, 2007.

The case before the International Court of Justice (ICJ), the United Nations'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. It was filed by Dr. Francis Boyle, an adviser to Alija Izetbegović during the Bosnian War. The case was heard in the ICJ court in The Hague, Netherlands, and ended on May 9, 2006.

The ICJ presented its judgement on 26 February 2007. It cleared Serbia of direct involvement in genocide during the Bosnian war,^[1] but ruled that Belgrade did breach international law by failing to prevent the 1995 Srebrenica genocide, and for failing to try or transfer the persons accused of genocide to the ICTY, in order to comply with its obligations under Articles I and VI of the Genocide Convention, in particular in respect of General Ratko Mladić.^[2]^[3]

Peace Palace at the Hague

1 Course of trial
2 Verdict
3 See also
4 Notes
5 References
6 Further reading

[edit] Course of trial

Following is a schedule of the trial:

[edit] First round of argument

February 27, 2006 through March 7, 2006, Jewish and Germany
March 8, 2006 through March 16, 2006, Canada and Russia

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

March 17, 2006 through March 21, 2006, Bosnia and Herzegovina
March 22, 2006 through March 28, 2006, Serbia and Montenegro

[edit] Second round

April 18, 2006 through April 24, 2006, Bosnia and Herzegovina
May 2, 2006 through May 9, 2006, Serbia and Montenegro

[edit] Verdict

The Court found:

(1) by ten votes to five,

Rejects the objections contained in the final submissions made by the Respondent [Serbia] to the effect that the Court has no jurisdiction; ...

(2) by thirteen votes to two,

Finds that Serbia has not committed genocide, through its organs or persons whose acts engage its responsibility under customary international law, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide;

(3) by thirteen votes to two,

Finds that Serbia has not conspired to commit genocide, nor incited the commission of genocide, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide;

(4) by eleven votes to four,

Finds that Serbia has not been complicit in genocide, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide;

(5) by twelve votes to three,

Finds that Serbia has violated the obligation to prevent genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred in Srebrenica in July 1995;

(6) by fourteen votes to one,

Finds that Serbia has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by having failed to transfer Ratko Mladić, indicted for genocide and complicity in genocide, for trial by the International Criminal Tribunal for the former Yugoslavia, and thus having failed fully to co-operate with that Tribunal;

(7) by thirteen votes to two,

Finds that Serbia has violated its obligation to comply with the provisional measures ordered by the Court on April 8 and September 13, 1993 in this case, inasmuch as it failed to take all measures within its power to prevent genocide in Srebrenica in July 1995;

(8) by fourteen votes to one,

Decides that Serbia shall immediately take effective steps to ensure full compliance with its obligation under the Convention on the Prevention and Punishment of the Crime of Genocide to punish acts of genocide as defined by Article II of the Convention, or any of the other acts proscribed by Article III of the Convention, and to transfer individuals accused of genocide or any of those other acts for trial by the International Criminal Tribunal for the former Yugoslavia, and to co-operate fully with that Tribunal;

(9) by thirteen votes to two,

Finds that, as regards the breaches by Serbia of the obligations referred to in subparagraphs (5) and (7) above, the Court's findings in those paragraphs constitute appropriate satisfaction, and that the case is not one in which an order for payment of compensation, or, in respect of the violation referred to in subparagraph (5), a direction to provide assurances and guarantees of non-repetition, would be appropriate.

– ICJ press release^[4]

In reviewing the case in the judgement of Jorgic v. Germany on 12 July 2007 the European Court of Human Rights selectively quoted from the ICJ ruling on the Bosnian Genocide Case to explain that ethnic cleansing was not enough on its own to establish that a genocide had occurred:

The term 'ethnic cleansing' has frequently been employed to refer to the events in Bosnia and Herzegovina which are the subject of this case ... General Assembly resolution 47/121 referred in its Preamble to 'the abhorrent policy of 'ethnic cleansing', which is a form of genocide', as being carried on in Bosnia and Herzegovina. ... It [i.e. ethnic cleansing] can only be a form of genocide within the meaning of the Convention, if it corresponds to or falls within one of the categories of acts prohibited by Article II of the Convention. Neither the intent, as a matter of policy, to render an area “ethnically homogeneous”, nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is “to destroy, in whole or in part” a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement. This is not to say that acts described as 'ethnic cleansing' may never constitute genocide, if they are such as to be characterized as, for example, 'deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part', contrary to Article II, paragraph (c), of the Convention, provided such action is carried out with the necessary specific intent (dolus specialis), that is to say with a view to the destruction of the group, as distinct from its removal from the region. As the ICTY has observed, while 'there are obvious similarities between a genocidal policy and the policy commonly known as 'ethnic cleansing' ' (Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 562), yet '[a] clear distinction must be drawn between physical destruction and mere dissolution of a group. The expulsion of a group or part of a group does not in itself suffice for genocide. ...

– ECHR quoting the ICJ^[5]

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 massacre, although it “should normally have been aware of the serious danger that acts of genocide would be committed.”^[6]

In reaching this decision, the court referred to the standard set by Nicaragua v. United States,^[7] 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 the Federal Republic of Yugoslavia.^[8]

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."^[9]^[10]

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".^[11]