Academic journal article Texas International Law Journal

The World Court's Distress When Facing Genocide: A Critical Commentary on the Application of the Genocide Convention Case (Bosnia and Herzegovina V. Yugoslavia (Serbia and Montenegro))

Academic journal article Texas International Law Journal

The World Court's Distress When Facing Genocide: A Critical Commentary on the Application of the Genocide Convention Case (Bosnia and Herzegovina V. Yugoslavia (Serbia and Montenegro))

Article excerpt

I. INTRODUCTION

Some fifty years ago, the International Court of Justice (ICJ) delivered an influential advisory opinion1 wherein it discussed the conditions for the validity of reservations to the Convention on the Prevention and Punishment of the Crime of Genocide.2 Considering the still relatively underdeveloped state of international human rights at the time, the opinion undoubtedly marked the landscape of that field of international law more deeply than any of the Court's earlier and subsequent pronouncements.3

Indeed, the advisory opinion contains arguably some of the most stirring language of any decision ever rendered by the World Court. It highlights the "humanitarian and civilizing purpose" of the Genocide Convention to "safeguard the very existence of certain human groups" and to "confirm and endorse the most elementary principles of morality."4 This language is reminiscent of the words used by the Court in its earlier decision on the merits in Corfu Channel case where it referred elusively to "certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war"5 as a possible basis for legal obligations. Both expressions contained a "common core of meta-juridical values protected and promoted by positive law"6 and formed the backdrop against which the interpretation of the Convention had to be measured.7 This was further confirmed by the dissenting judges who argued that "the enormity of the crime of genocide can hardly be exaggerated, and any treaty for its repression deserves the most generous interpretation."8

Sadly, the rhetoric of the advisory opinion has not been given effect in subsequent decisions pertaining to genocide but has rather given way to a schizophrenic pathology of the Court and particularly of some of its members when faced with such issues. This is due in large part to the inevitable conflict between traditional conceptions of state sovereignty and the normative posture of the advisory opinion, which undercuts exclusive "domestic jurisdiction," to borrow the language of Article 2(7) of the Charter of the United Nations.9

The congenital tension between the concern for human rights and state sovereigntytwo pillars of international law-thus manifested itself, albeit in rather curious ways, in Application of the Convention on the Prevention and Punishment of the Crime of Genocide case.10 The case, involving a claim by Bosnia and Herzegovina against the new republic of Serbia and Montenegro for compensation for genocide allegedly committed by the former Serbian government, was the first occasion for the ICJ to clarify the scope of the implementation of the duty to prevent genocide and to give effect to the affirmations it formulated some forty years earlier. In an unprecedented move, the Court held it had prima facie jurisdiction to order provisional measures to protect disputed rights of the parties within the former Yugoslavia even before determining that the Genocide Convention applied to the case." It further decided to issue and subsequently reaffirm three provisional measures directing the Federal Republic of Yugoslavia to "immediately. . . take all measures within its power to prevent commission of the crime of genocide" against Bosnian Muslims or any other group,12 ruling that Article I of the Convention imposed a "clear obligation" on both Bosnia and Yugoslavia "to do all in their power to prevent the commission of any such acts in the future."13

Ultimately, however, the procedures of the Court and the lack of enforceability of its judgments outside action under Chapter VII of the U.N. Charter or the goodwill of U.N. Member States demonstrated that the courtroom was not the appropriate forum for the airing of questions relating to genocide.14 This applies particularly when the issue is not one of rights and obligations in classical interstate relations but the prevention of grotesque acts that dehumanize and deny the right to exist to the unfortunate groups concerned. …

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