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

Article excerpt

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.

I. 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.

A. 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)

B. 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. …