| The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) | |
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The Peace Palace in The Hague, the seat of the ICJ. |
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| Court | International Court of Justice |
| Date decided | 26 February 2007 |
| Citation(s) | General List No. 91 |
| Transcript(s) | Written and oral proceedings |
| Judge(s) sitting | Rosalyn Higgins, Awn Shawkat Al-Khasawneh, Raymond Ranjeva, Shi Jiuyong, Abdul G. Koroma, Hisashi Owada, Bruno Simma, Peter Tomka, Ronny Abraham, Kenneth Keith, Bernardo Sepúlveda Amor, Mohamed Bennouna, Leonid Skotnikov, Ahmed Mahiou (ad hoc judge appointed by Bosnia and Herzegovina) and Milenko Kreća (ad hoc judge appointed by Serbia and Montenegro) |
| Case opinions | |
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The Court affirms that it has jurisdiction; Serbia has not committed genocide; Serbia has not conspired to commit genocide, nor incited the commission of genocide; Serbia has not been complicit in genocide; Serbia has violated the obligation to prevent the Srebrenica genocide; Serbia has violated its obligations under the Genocide Convention by having failed to transfer Ratko Mladić to ICTY; Serbia has violated its obligation to comply with the provisional measures ordered by the Court |
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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 26 February 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 9 May 2006.
The ICJ presented its judgment on 26 February 2007, in which, among other things, it confirmed the ICTY judgment that the Srebrenica massacre was genocide, stating:
The Court concludes that the acts committed at Srebrenica falling within Article II (a) and (b) of the Convention were committed with the specific intent to destroy in part the group of the Muslims of Bosnia and Herzegovina as such; and accordingly that these were acts of genocide, committed by members of the VRS in and around Srebrenica from about 13 July 1995.[1]
The Court found - although not unanimously - that Serbia was neither directly responsible for Srebrenica genocide, nor that it was complicit in it, but it did rule that Serbia had committed the breach the Genocide Convention by failing to prevent the Srebrenica genocide, for not cooperating with the ICTY in punishing the perpetrators of the genocide, in particular in respect of General Ratko Mladić, and for violating its obligation to comply with the provisional measures ordered by the Court.[1][2] Vice-President of the Court dissented on the grounds that "Serbia’s involvement, as a principal actor or accomplice, in the genocide that took place in Srebrenica is supported by massive and compelling evidence."[1]
Contents |
Following is a schedule of the trial:
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[3]
Vice-President of the International Court of Justice, Judge Al-Khasawneh, sharply dissented:
"Serbia’s involvement, as a principal actor or accomplice, in the genocide that took place in Srebrenica is supported by massive and compelling evidence – Disagreement with the Court’s methodology for appreciating the facts and drawing inferences therefrom – The Court should have required the Respondent to provide unedited copies of its Supreme Defence Council documents, failing which, the Court should have allowed a more liberal recourse to inference – The “effective control” test for attribution established in the Nicaragua case is not suitable to questions of State responsibility for international crimes committed with a common purpose -The “overall control” test for attribution established in the Tadić case is more appropriatewhen the commission of international crimes is the common objective of the controlling State and the non-State actors – The Court’s refusal to infer genocidal intent from a consistent pattern of conduct in Bosnia and Herzegovina is inconsistent with the established jurisprudence of the ICTY – the FRY’s knowledge of the genocide set to unfold in Srebrenica is clearly established – The Court should have treated the Scorpions as a de jure organ of the FRY – The statement by the Serbian Council of Ministers in response to the massacre of Muslim men by the Scorpions amounted to an admission of responsibility – The Court failed to appreciate the definitional complexity of the crime of genocide and to assess the facts before it accordingly."
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.”[4]
In reaching this decision, the court referred to the standard set by Nicaragua v. United States,[5] 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.[6]
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."[7][4]
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".[8]
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[9]
The Court's opinion that genocide did not take place across the entire occupied territory of Bosnia-Herzegovina and its finding that Serbia was not directly involved in the Srebrenica genocide have been strongly criticized. Prof. Yuval Shany, Hersch Lauterpacht Professor of Public International Law at the Hebrew University of Jerusalem[10] described the Court's conclusions on the three questions before it as anything but uncontroversial.
First, as far as the jurisdictional part of the decision goes, the court has been severely criticized for unjustifiably over-stretching the concept of res judicata to decisions on jurisdiction rendered at an earlier stage of the same proceedings; for over-relying on legal conclusions that were decided at earlier stages without serious consideration; and for narrowly construing its powers of revision.Indeed, seven out of the fifteen judges on the bench expressed varying degrees of unease with this particular outcome.
Second, as for the actual findings on the commission of genocide, some writers have criticized the court for refusing to look at the ‘bigger picture’ of the events in Bosnia – a picture that seems to suggest that the various atrocious crimes meted out by the Bosnian-Serbs were all part of the same ‘master-plan’ of creating an ethnically homogeneous Serbian state. Others have questioned the court’s readiness to rely on the absence of individual convictions in genocide by the ICTY (except with relation to the massacre in Srebrenica), without properly considering the difference between standards of liability under criminal law and state responsibility or fully appreciating the limited probative value of reduced charges as the result of plea bargains.
Third, with respect to the question of Serbian responsibility, the court’s legal analysis of attribution standards, the reluctance to find Serbia to be an accomplice to genocide, and the decision to refrain from ordering reparations, have all been criticized as excessively conservative. At the same time, the court’s expansive reading of Article 1 of the Genocide Convention as potentially imposing on all states a duty to prevent genocide, even if committed outside their territory, has been noted for its remarkable boldness. Still, some writers have criticized the court for not clarifying whether Article 1 can provide an independent basis for exercising of universal jurisdiction against individual perpetrators of genocide.(28) So, arguably, the court construed broadly the duty to prevent genocide while narrowly construing the duty to punish its perpetrators.''
Antonio Cassese, the first president of the International Criminal Tribunal for the former Yugoslavia, criticized the ICJ judgement on the ground that "The International Court has set an unrealistically high standard of proof for finding Serbia complicit in genocide." He added:[11]
The ICJ, which ... deals with controversies between states, was faced with Bosnia's claim that Serbia was responsible for the Srebrenica massacre. Although the Court ruled that genocide had taken place, it decided that Serbia was not responsible under international law. According to the Court, the Bosnian Serb generals who were guilty of this genocide, the various Mladic's and Kristic's, were neither acting as Serbia's agents nor receiving specific instructions from Belgrade... Why was it not enough to prove that the Bosnian Serb military leadership was financed and paid by Serbia and that it was tightly connected to Serbia political and military leadership? More importantly, the ICJ's decision that Serbia is responsible for not having prevented a genocide in which it was not complicit makes little sense.According to the Court, Serbia was aware of the very high risk of acts of genocide and did nothing. But Serbia was not complicit, the Court argued, because "it has not been proven" that the intention of committing the acts of genocide at Srebrenica "had been brought to Belgrade's attention".
This is a puzzling statement at best. The massacre was prepared in detail and took place over the course of six days (between July 13 and 19). Is it plausible that the Serbian authorities remained in the dark while the killing was in progress and reported in the press all over the world?''
Vice-President of the International Court of Justice, Judge Al-Khasawneh, criticized the judgement as not reflecting the evidence with respect to Serbia's direct responsibility for genocide at Srebrenica: [12]
"The 'effective control' test for attribution established in the Nicaragua case is not suitable to questions of State responsibility for international crimes committed with a common purpose. The 'overall control' test for attribution established in the Tadić case is more appropriate when the commission of international crimes is the common objective of the controlling State and the non-State actors. The Court’s refusal to infer genocidal intent from a consistent pattern of conduct in Bosnia and Herzegovina is inconsistent with the established jurisprudence of the ICTY. The FRY’s knowledge of the genocide set to unfold in Srebrenica is clearly established. The Court should have treated the Scorpions as a de jure organ of the FRY. The statement by the Serbian Council of Ministers in response to the massacre of Muslim men by the Scorpions amounted to an admission of responsibility. The Court failed to appreciate the definitional complexity of the crime of genocide and to assess the facts before it accordingly."
The International Criminal Tribunal never received complete archive of Supreme Defense Council minutes from Serbia. According to the explanation given by Sir Geoffrey Nice, former prosecutor in the trial of Slobodan Milosevic:[13]
"First, it is important to note that Serbia did not hand over to the Prosecution (OTP) the complete collection of SDC [Supreme Defence Council] records. For example, for the year 1995 the OTP received recordings for only about half of all the sessions held by SDC. Further, some of the SDC records were not handed over in their full stenographically recorded form but were produced as extended minutes. That means that they were shorter than steno-notes but longer than the regular minutes. The dates of the missing meetings or the meetings where this lesser form of record was provided, as I recall, were significant – namely dates leading up to, surrounding and in the aftermath of the Srebrenica massacre. The full records of those meetings need yet to be provided. At the same time, these documents, significant as they are, do not constitute a single body of evidence that will explain once and for all what happened and who was culpable. They do provide a much fuller context and provide some very valuable testimonials of things that were said by Milosevic and others. In their un-redacted form they would point all who are interested (not just governments and lawyers) to other documents that have never been provided and that might well be more candid than the words of those at the SD Council meetings who knew they were being recorded by a stenographer. Second, it should also be remembered that there are other protected document collections and individual documents which were, and still are, protected by direct agreements between Belgrade and the former OTP Prosecutor, i.e. they were not protected by the Trial Chamber. These documents are difficult now to identify but if and when Bosnia-Herzegovina decides to reopen the ICJ case it will be essential to require Serbia and/or the ICTY to produce all those documents for the ICJ."
Under international law, Bosnia and Herzegovina is allowed ten years from the date of the decision to file an appeal. It is currently in the process of forming its team and gaining financial and political acceptace within the government. Evidence found from crimes committed all throughout Bosnia and Herzegovina will be used as well as the verdict of Momcilo Perisic (General and Chief of the General Staff of the Yugoslav Army) who's decision is expected to influence heavily the genocide case against Serbia if he is found to have been aware of genocide.
Currently, former Bosnian Serb leader Radovan Karadzic and Ratko Mladic are both on trial on two counts of genocide and other war crimes committed in Srebrenica, Prijedor, Kljuc, and other districts of Bosnia. Karadzic and Mladic are charged, separately, with:
Count 1: Genocide. – Municipalities: Bratunac, Foča, Ključ, Kotor Varoš, Prijedor, Sanski Most, Vlasenica and Zvornik.
Count 2: Genocide. – Municipality: Srebrenica.
Count 3: Persecutions on Political, Racial and Religious Grounds, a Crime Against Humanity. – Municipalities: Banja Luka, Bijeljina, Bosanska Krupa, Bosanski Novi, Bratunac, Brčko, Foča, Hadžići, Ilidža, Kalinovik, Ključ, Kotor Varoš, Novi Grad, Novo Sarajevo, Pale, Prijedor, Rogatica, Sanski Most, Sokolac, Trnovo, Vlasenica, Vogošća, Zvornik and Srebrenica.
Count 4: Extermination, a Crime Against Humanity.
Count 5: Murder, a Crime Against Humanity.
Count 6: Murder, a Violation of the Laws or Customs of War.
Count 7: Deportation, a Crime Against Humanity.
Count 8: Inhumane Acts (forcible transfer), a Crime Against Humanity.
Count 9: Acts of Violence the Primary Purpose of which is to Spread Terror among the Civilian Population, aViolation of the Laws or Customs of War.
Count 10: Unlawful Attacks on Civilians, a Violation of the Laws or Customs of War.
Count 11: Taking of Hostages, a Violation of the Laws or Customs of War. [14][15]