1996

ICJ

Case concerning application of the convention on the prevention and punishment of the crime of genocide Bosnia-Herzegovina v. Yugoslavia Preliminary objections

1993 March 20, Bosnia and Herzegovina filed the case v. Yugoslavia (Serbia & Montenegro) alleging violation to Genocide Convention (ethnic cleansing committed by Yugoslavia, directly or through surrogates against the Muslim and Croat population in Bosnia-Herzegovina), and invoking art IX of such convention as basis of jurisdiction. 1993 March 20, Bosnia and Herzegovina request provisional measures 1993 April 8, Court indicated certain provisional measures to protect the rights under the convention 1993 July 15, Bosnia & Herzegovina filed new request for provisional measures 1993 September 13, Court reaffirmed that measures of April and declared that those measures should be immediately and effectively implemented. 1994 April 15, B&H memorial 1995 June 26, Yugoslavia counter memorial / preliminary objections to admissibility and jurisdiction / counter claims 1996 July 11, Judgement, the Court has jurisdiction under art IX Convention Principal requests submitted by Bosnia are for the Court to declare that Yugoslavia has in several ways violated the Genocide Convention 1948; to order Yugoslavia to cease the acts contrary to the obligations stipulated in the Convention; and to declare that Yugoslavia has incurred international responsibility by reason of those violations, for which it must make appropriate reparation. Jurisdiction was based on Article IX of the convention (disputes over responsibility of states for genocide submitted ICJ at request of any party) Objections: 1st Yugoslavia contested the existence of an "international dispute" the conflict occurring in the Applicant's territory was domestic, Civil war excludes international dispute 2nd Authorization to initiate proceedings was granted in violation of certain rules of domestic law of fundamental significance; Mr Alija was not president of the republic, but president of the president. 3rd BH had not become a party to the convention in the date of filling, according to the convention, premature filling 4th BH has been recognised illegally so it is not a party to the convention 5th Yugoslavia did not exercise jurisdiction over that territory 6th The act claimed to cause genocide occurred before 29 march 1993, so there is no jurisdiction ratione temporis 7th In any event the convention did not apply between the parties but just after 29 march 1993 (17) The proceedings are between two sates whose territories are located within the FSRY. The FSRY signed the convention on 1948. 27 April 1992, proclamation of Federal Republic of Yugoslavia a formal declaration was issued to the effect that it would continuing the international legal personality of FSRY and abide all the commitments assumed internationally

(18) 29 December 1992 Bosnia-Herzegovina transmitted the UN a notice of succession to the genocide convention, and according to XIII of the convention it became effective 90 days following the deposit, that is 29 march 1993 (the case was filled the 20 march 1993) (19) B&H became a member of UN following after the SC decisions of 22 May 1992. Art XI of Genocide Convention opens it to ‘any member of the UN’ therefore from the time to its admission to UN B&H became a party to the convention. (24) Even if Bosnia and Herzegovina were to be treated as having acceded to the convention, which would mean that the application could be said to be premature by nine days when filled on, during the time elapsed since then, Bosnia and Herzegovina could, on its own initiative, have remedied the procedural defect by filling a new application. It therefore matters little that the application had been filled some days early. The court is not bound to attach the same degree of importance to considerations of form as they might posses in domestic law. The court had always recourse to the principle according to which it should not penalise a defect in a procedural act which the applicant could easily remedy. 3rd objection dismissed (31) Convention is applicable, without reference that the acts contemplated by it should have been committed within the framework of a particular type of conflict. Genocide is a crime under international law independently of the context of peace or of war. Convention is applicable without reference to the circumstances linked to the domestic or international nature of the conflict Reinterpreting A O 1951 (reservations to genocide convention) where the court concluded that convention’s principles were recognized as binding on States, even without any conventional obligation, and that there was a universal character both of the condemnation of genocide and of the co-operation to put and end on such practice, therefore, in this case the court said: (31)‘the rights and obligations enshrined by the Convention are rights and obligations erga omnes. The Court notes that the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention’ (32) According to Yugoslavia, Article IX only covers responsibility from failure to fulfil its obligations of prevention and punishment. The responsibility of a State for an act of genocide perpetrated by the State itself would be excluded from the scope of the Convention. Court observes that Article IX does not exclude any form of State responsibility. Nor is the responsibility of a State for acts of its organs excluded by article IV of the Convention, which contemplates the commission of an act of genocide by ‘rulers’ or ‘public officials’ (35) Bosnia-Herzegovina invoked additional bases of jurisdiction, war of aggression during which it violated the 1949 Geneva Conventions and the 1977 Protocols I and II [ICJ didn’t withhold] (44) According to international law, there is no doubt that every Head of State is presumed to be able to act on behalf of the State in its international relations (VCLT, Art. 7, 2 (a)). Mr. Izetbegovic was recognized, in particular by the United Nations, as the Head of State of Bosnia-Herzegovina