Application of the Convention on the Prevention and Punishment of the Crime of Genocide: Bosnia and Herzegovina V. Serbia and Montenegro
Turns, David, Melbourne Journal of International Law
CONTENTS I Introduction and Background to the Case II The Relief Requested and the Proceedings Prior to the Judgment on the Merits III The Court's Judgment on the Merits: The Jurisdictional Question IV Genocide and State Responsibility V Genocide in Bosnia: Legal and Factual Aspects of the Case VI Genocide at Srebrenica: Imputability to Serbia under the Law of State Responsibility VII Failure to Prevent and Punish Genocide: A Secondary Form of State Responsibility? VIII Footing the Bill (or Not) for Genocide: What Reparations are Adequate? IX Concluding Comments
I INTRODUCTION AND BACKGROUND TO THE CASE
On 26 February 2007, one of the longest running and most tortuous pieces of litigation in the history of the International Court of Justice came to a close when a decision on the merits was handed down in the case brought by Bosnia and Herzegovina ('Bosnia') against Serbia and Montenegro ('Serbia') (1) in March 1993. The case is truly one of superlatives: a duration of 14 years resulted in a majority judgment running to 171 pages (the first 32 of which are exclusively dedicated to recounting the history of the proceedings); appended to the Court's judgment are three declarations, two separate opinions and four dissenting opinions (one of which unites three Judges but itself contains a joint dissenting opinion of all three on certain points, plus a separate opinion of one of them and a joint declaration for the two others in respect of other points on which all three were not in agreement). Between them, all these declarations, and separate and dissenting opinions are substantially longer than the judgment of the Court, weighing in at 392 further pages. The multiplicity of opinions put forward by many of the Judges in respect of various specific points in the judgment is testimony to perhaps the most important superlative of all: the subject matter of the case itself. At issue was the extraordinarily complex and contentious question of whether, and if so to what extent, Serbia could be said to bear state responsibility in international law for alleged violations of the Genocide Convention (2) committed in the territory of Bosnia during the 1992-95 Bosnian War, which followed the secession of that republic from the former Socialist Federal Republic of Yugoslavia ('SFRY'). It would be no exaggeration to say that the factual events at the heart of the case shook the entire world, such was their ferocity and context as the first sustained armed conflict anywhere in Europe since the end of World War II. On both sides of the dispute, the outcome of the case was widely touted as representing either justice (for the Bosnian Muslims) or vindication (for the Serbs, both in Serbia itself and in the autonomous Serb entity that is one of the constituent parts of Bosnia post-1995). Furthermore, given the notoriety of genocide as 'the crime of crimes' (3) and the fact that international civil litigation alleging state responsibility for such a serious crime against international law was literally without precedent, the potential significance and effect of the decision, both in legal and moral terms, were enormous. Some, indeed, might consider that the ICJ was not the right forum for such a case.
The background to the case is as follows. Following Bosnia's declaration of independence from the former SFRY in March 1992, a civil war broke out in progressive stages between the three ethnic communities that had existed in Bosnia for several centuries. (4) Although initially internal in nature, this conflict was 'internationalised' at various points by the intervention of armed forces from both Serbia (5) and Croatia (6) on the sides of their respective co-ethnic forces. With the internationally recognised government of the new republic in Muslim hands, nationalistic elements in the Serbian component of the population started fighting against the Bosnian Government's forces. (7) Although initially the Croats and Muslims combined forces against the Serbs, subsequent fighting also broke out between Croatian and Government forces (largely over the division of the town of Mostar); the Serbs and Croats also fought against each other. …