Bosnian genocide case at the International Court of Justice

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The Bosnian genocide case at the International Court of Justice (also known as Bosnia and Herzegovina v. Serbia and Montenegro; first filed as Bosnia and Herzegovina v. Yugoslavia in 1993; de jure name Application of the Convention on the Prevention and Punishment of the Crime of Genocide) is an ongoing landmark court case where for the first time in the 60-year history of the International Court of Justice (ICJ) one state, Bosnia and Herzegovina, is accusing another state, Serbia and Montenegro, of genocide.

The case before the ICJ, the UN's highest judicial body, which exclusively hears disputes between states, relates to alleged attempts to wipe out the primarily Bosniak population of Bosnia. The hearings at the court in The Hague, Netherlands, are set to run until May 9, 2006. A binding ruling is expected by the end of the 2006 or early 2007. If Bosnia wins, it could seek billions of dollars in compensation.

According to some reports, ruling in this case will have repercussions on the case Croatia v. Yugoslavia that is based on a similar indictment currently pending at the ICJ as well as other related cases that may be brought before this court in the future.

Contents

1 Background
2 The two sides

2.1 Bosnian case
2.2 Serbian defense

3 Course of trial

3.1 First round of oral argument
3.2 Hearing of experts, witnesses and witness-experts
3.3 Second round of oral argument

4 Significance of the case for the International law
5 See also
6 External links

Background

The International Court of Justice (ICJ) in The Hague opened the case 13 years after Bosnia sued the rump Yugoslav state from which it seceded in 1992, followed by a war in which at least 100,000 people were killed. Bosnia and Herzegovina filed a claim on March 20, 1993 alleging violations of the UN Convention on the Prevention and Punishment of the Crime of Genocide against the former Yugoslavia during the 1992-1995 Bosnian war. According to the claim Bosnia and Herzegovina is arguing that the Yugoslavia had “planned, prepared, conspired, promoted, encouraged, aided and abetted and committed” genocide against its population.

Hearings on the merits of the case were delayed while Serbia and Montenegro challenged the court's jurisdiction, but the court made a preliminary ruling in 1996 that it had jurisdiction to hear the dispute. In addition Serbia and Montenegro have filed a counter suit accusing Bosnia and Herzegovina for committing genocide with respect to its Bosnian Serb population. The suit was dropped in 2000 after the fall of Milošević regime in Belgrade in 1999. The case was further challenged as Yugoslavia has since changed its legal name to Serbia and Montenegro, claiming that the latter was not officially member of the UN and hence does not fall under its jurisdiction. The court dismissed the claim allowing the case to proceed in 2003. It is important to note, however, that the Court earlier dismissed Yugoslavia's case against NATO-member countries, that relied on the same theory, i.e. genocide, holding that there was no jurisdiction over NATO countries since Yugoslavia was not at the time a member of the UN.

Before the case has even come to court, the Sarajevo legal team have also been forced to deal with resistance from the whole Balkan region, and even from within Bosnia itself. Complaints have emerged from various sides about the expense of the proceedings particularly coming from the Republika Srpska, one of two entities comprising Bosnia and Herzegovina. The case was further hindered by lack of state funding as the Serbian side of the Bosnian parliament frequently vetoed any attempts to budget the court case at the state level. Serbia and Montenegro has also repeatedly urged Bosnia and Herzegovina to settle outside court.

Despite all that, the hearings on the case officially began on February 28, 2006.

The two sides

Bosnian case

Bosnian case attests that Serbia and Montenegro (at the time Yugoslavia) has breached its legal obligations toward the People and State of Bosnia and Herzegovina under Articles I, II (a), II (b), II (c), II (d), III (a), III (b), III (c), III (d), III (e), IV and V of the Genocide Convention, specifically by:

systematic practice of so-called "ethnic cleansing" of the citizens and sovereign territory of Bosnia and Herzegovina;
murder, summary execution, torture, rape, kidnapping, mayhem, wounding, physical and mental abuse, and detention of the citizens of Bosnia and Herzegovina;
wanton devastation of villages, towns, districts, cities, and religious institutions in Bosnia and Herzegovina
bombardment of civilian population centers in Bosnia and Herzegovina, and especially its capital, Sarajevo;
continued siege of any civilian population centers in Bosnia and Herzegovina, and especially its capital, Sarajevo;
starvation of the civilian population in Bosnia and Herzegovina;
interruption of, interference with, or harassment of humanitarian relief supplies to the citizens of Bosnia and Herzegovina by the international community;
use of force — whether direct or indirect, overt or covert — against Bosnia and Herzegovina, and from all threats of force against Bosnia and Herzegovina;
violations of the sovereignty, territorial integrity or political independence of Bosnia and Herzegovina, including all intervention, direct or indirect, in the internal affaire of Bosnia and Herzegovina;
support of any kind — including the provision of training, arms, ammunition, finances, supplies, assistance, direction or any other form of support — to any nation, group, organization, movement or individual engaged or planning to engage in military or paramilitary actions in or against Bosnia and Herzegovina;

According to some reports Bosnian lawyers face the daunting task of proving not only that genocide occurred in Bosnia, but also that responsibility lay with an entire state. The task is viewed as difficult given the uniqueness of the case and the fact that no state has ever been convicted of genocide in the past.[link]

The Bosnian side will rely heavily on the findings and decisions of International Crimes Tribunal for the Former Yugoslavia (ICTY) that was also set up by the UN to try individuals accused of war crimes and genocide in the conflicts following the break-up of Yugoslavia. Indeed the ICTY has ruled in a Srebrenica massacre court case (the so called Prosecutor vs Krstić) that the Bosnian Serb Army has committed the act of genocide in and near the Bosnian town of Srebrenica against the Bosniak population.

It will be up to Bosnian lawyers to provide evidence that the Srebrenica massacre is one of many cases of genocide that took place in Bosnia and Herzegovina, as well as that Serbia and Montenegro is directly responsible for those crimes.

Serbian defense

A key part of the defense case will focus on the issue of the (so called) state-based intent to mass genocide, which is a part of the very definition of genocide, since genocide has to include the intent to destroy a people, in whole or in part.

The Serbian side may therefore argue that there is a lack of evidence that senior Yugoslav officials, even as individuals, had a specifically genocidal intent to destroy a particular part of the Bosnian population at all.

Serbian defense may also challenge its status as the formal legal side of the process, the International UN Court of Justice and its jurisdiction over the case, since the former Federal Republic of Yugoslavia (now Serbia and Montenegro) was not a member of the UN during the Bosnian War (non-membership period lasted 1992-2000). The defense therefore may claim that its war operations could not be retroactively considered within UN-based court institution. (For example, Serbian allegations against the NATO for its 1999 war crimes in operation against the Federal Republic of Yugoslavia were sent to the UN International Court of Justice and were completely refused because of the legal barrier to prosecute one side (here, the NATO) by another side that was outside the UN organization (here, the FRY).

Course of trial

Following is a schedule of the trial:

First round of oral argument

February 27, 2006 through March 7, 2006 Bosnia and Herzegovina

March 8, 2006 through March 16, 2006 Serbia and Montenegro

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

Second round of oral argument

April 18, 2006 through April 24, 2006 Bosnia and Herzegovina

May 2, 2006 through May 9, 2006 Serbia and Montenegro

Significance of the case for the International law

Bosnian genocide case at the ICJ is perhaps one of the most important legal cases for the international law since the Nuremberg Trials after the World War II. It is taking place 55 years after the convention for the prevention of genocide has been ratified. As a landmark case it serves to probe the applicability, capability and validity of the ICJ to enforce the genocide convention in this case and in the future.

The case also raises several philosophical issues, one of which is the concept if the whole state can be held responsible for genocide. The critics point out that state responsibility for crimes of genocide inherently serves to establish a collective guilt rather than individual accountability for crimes committed.#redirect [[Template:Fact]] Some argue that exactly due to this discredited notion of the "collective guilt" changes took place in social and legal systems in last 50 years that led to empowerment of individual and human rights over the rights of the state.#redirect [[Template:Fact]] As a result those changes empowered human and individual rights and led to establishment of such institutions as ICTY and ICC that serve to hold individuals accountable for the most severe crimes including genocide. Critics further claim that in time when individual accountibility takes precedent over discredited notion of the collective guilt, applicability of ICJ in deciding if particular nation can be convicted of genocide becomes questionable.#redirect [[Template:Fact]]

Contrasting philosophy argues that ICJ's purpose is not to establish a collective guilt but rather to work in unison with such institutions as ICC and ICTY as to create conditions where individuals would act as responsible members of the state in respect to the conduct of states that represent them. Proponents of this philosophy also point out that given the rise of human and individual rights in last 50 years, individuals became owners of the modern day state rather than subjects or indistinguishable servants of the state (or kingdom). In their view citizenship within a particular state has many privileges as it has its duties. They argue that if the state is determined responsibile for genocide it does not imply the collective guilt of its citizans but a common assumption that its citizans would be responsibile for reparations of effects and distribution of costs caused by genocide and not the distribution of guilt for genocide.

As described by Professor Mark Drumbl in regard to Bosnian genocide case at the ICJ:

(T)he deliberate choice by international criminal justice institutions to selectively blame a handful of individuals . . . erases . . . the involvement of ordinary (persons) . . . This, in turn, leads to a retributive shortfall, in so far as only a few people receive their just deserts, while many powerful States and organizations avoid accountability.

External links

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