1997

ICJ

Case concerning application of the Convention on the Prevention and Punishment of the crime of Genocide Bosnia-Herzegovina v Yugoslavia Counter Claims

Yugoslavia asked as counter claims the ICJ to declare: 1. No violation of 1948 Genocide Convention have been committed against Muslims and Croats, since - Acts alleged have not been committed or not the extent alleged - If committed, no intention to do so and/or - Not been directed against any individual ethnic or religious group 2. Acts alleged cannot be attributed to Yugoslavia since - They were not committed by its organs - They were not committed in its territory - They were not committed by order or under control of the its organs - No ground on CIL to consider such acts as acts of Yugoslavia 3. B&H is responsible of acts of genocide committed against Serbs in B&H - Incited acts of genocide by ‘Islamic declaration’, ‘Novi Vox’, ‘Zmaj od Bosne’ papers, public calls for execution of Serbs broadcasted - B&H Organs have committed acts of genocide against Serbs in B&H - B&H failed to prevent such acts of genocide B&H alleged: Yugoslav counter-claims were not in accordance with 80 Rules of the ICJ, so although they were presented in the counter memorial and come within the jurisdiction of the ICJ, they are not directly connected with the subject matter of the initial proceedings. Yugoslav counter memorial is divided in two autonomous sections: one reply the accusation violation to genocide convention; the second one, put facts before the court totally different from those on which the initial B&H claim is based. The examination of one set of facts will not help in the examination of the other. The judicial outcome of the 1st does not affect the outcome of the 2nd. Moreover, because of the nature of the genocide convention, (no logic of reciprocity) the judicial finding of a violation of the convention by a state cannot be influenced by the fact that a second violation has been perpetrated. B&H alleged that the counterclaim must 1. ‘counter’ the claim, oppose in order to block / reduce its effects 2. claim something more, in particular a judgement against the applicant of the principal proceedings. The Yugoslav counterclaim is not at all one; it formulates a second, autonomous dispute relating to other facts. Yugoslavia point out that the claim and counter claim are based on the same legal ground, genocide convention, and the disputed facts are those of the same tragic conflict, civil war in B&H. All the facts are relevant to identify the motives of individuals who committed crimes against the Muslims.

Court said: counter-claim has a dual character in relation to the claim. It is independent of the principal claim in so far as it constitutes a separate ‘claim’, it is an autonomous legal act the object of which is to submit a new claim to the court, and at the same time, it is linked to the principal claim, in so far as formulated as a ‘counter’ claim, the thrust of a counter claim is thus to widen the original subject-matter of the dispute. Counter claims are more to mere defences on the merits. However a claim should normally be made by means of an application, it is permitted for certain types of claims to be set out as incidental proceedings, within the context of a case which is already in progress, merely in order to ensure better administration of justice. The idea of Counter claims is to achieve procedural economy whilst enabling the Court to have an overview of the respective claims of the parties and to decide them more consistently. (However) the respondent cannot use a counter claim to refer a dispute which exceeds the limits of its jurisdiction as recognised by the parties, or impose on the applicant any claim it chooses, at risk of infringement the applicant rights and of compromising the proper administration of justice, for this reasons it is necessary that the counter claim ‘comes within jurisdiction ICJ’ + ‘directly connected w/subject matter of claim’ It is for the court in its sole discretion to asses whether the counter claim is sufficiently connected to the principal claim, as a general rule the degree of connection between the claims must be assessed both in fact and law. In the present case the respective claims rest on facts of the same nature, same factual complex occurred in B&H in same period. Absent of reciprocity (well pointed by B&H) is not determinative whether there is a connection or not, the two parties pursue the same legal aim, establishment of regal responsibility by genocide The counter claims submitted by Yugoslavia are directly connected with the subject matter of B&H’s claims Lauterpacht (separate opinion): I am concerned that ICJ has not given the parties the opportunity to develop their respective positions in oral argument. Bosnia supports a ‘restrictive’ interpretation of ‘direct connection’: identity of victims and material perpetrators, the factual analysis of counterclaim must have a relationship to the factual analysis of the claim. Yugoslavia has a ‘broad’ one: it is sufficient that the counter claim raised genocide of Serbs as an element relevant to contradict the facts presented by Bosnia. The choice between the approaches depends on the concept of genocide: accumulation of crimes which collectively evidence a pattern amounting to genocide, so the Yugoslav approach is OK Weeramantry (dissenting opinion): three prerequisites to present a counter claim: 1. must fall within a counter-claim 2. directly connected with subject matter 3. come within jurisdiction. This elements are necessary to present it, but joinder is not automatic, 4. (requisite to do so) discretion of the court. In a counter claim, there must be some point of intersection between the claims, which makes one exert an influence upon the judicial consequence of the other. Counter claim is a civil concept, the concept of crime being set off or used, as a counter claim to another crime is totally alien to modern jurisprudence. Genocide cannot set off genocide. The counter claim is presented more than 4 years after the application, when the case is ripe for hearing, this is going to delay the proceedings, and it can open the door to parties that seek to delay proceedings presenting cases against applicants in form of counterclaims. This situation is different of the 47 ICJ rules, two cases joined because of similar background, circumstances. On the other hand counterclaim involves conduct of a 3rd state, Croatia