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Bosnia v. Serbia: Lessons from the Encounter of the International Court of Justice with the International Criminal Tribunal for the Former Yugoslavia

Published online by Cambridge University Press:  01 March 2008

RICHARD J. GOLDSTONE  and
REBECCA J. HAMILTON
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Abstract

This article uses the recent judgment of the ICJ in Bosnia v. Serbia to highlight the potential problems that arise when international courts have to adjudicate on overlapping situations. It describes the dispute between the ICJ and the ICTY on the appropriate legal standard for the attribution of state responsibility, and finds that the ICJ's approach in this case suggests that those keen to minimize the fragmentation of international law between adjudicative bodies should not overlook the need for consistency within those bodies. With regard to fact finding, this article raises serious concerns about the manner in which the ICJ relied on the ICTY's work. The decision of the ICJ not to demand crucial documents from Serbia is discussed and criticized. Based on its approach to fact finding in this case, doubts are raised as to whether the ICJ will ever hold a state responsible for genocide outside the parameters of the prior criminal convictions of individual perpetrators.

Keywords

evidencefact-findingfragmentation of international lawgenocideInternational Court of JusticeInternational Criminal Tribunal for the former Yugoslavia
Type
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice
Information
Leiden Journal of International Law , Volume 21 , Issue 1 , March 2008 , pp. 95 - 112
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2008

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References

1. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 27 February 2007 (hereinafter Bosnia v. Serbia).

2. When the case began in 1993 the respondent's name was the Federal Republic of Yugoslavia (FRY). FRY President Milošević was overthrown on 5 October 2000, and on 4 February 2003 the FRY's name changed to Serbia and Montenegro. However, on 21 May 2006 Montenegro declared its independence, and so by the time of the final judgment the respondent's name was Serbia. In the following article the respondent will be referred to as ‘Serbia’.

3. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277 (hereinafter Genocide Convention).

4. The commentary on the question of fragmentation falls into two broad streams: those who view fragmentation as a chaos to be avoided; see, e.g., G. Guillaume, ‘The Future of International Judicial Institutions,’ (1995) 44 ICLQ 848, at 862, and those who embrace it as a sign of the maturing of international law; see, e.g., M. Koskenniemi and P. Leino, ‘Fragmentation of International Law? Post-modern Anxieties,’ (2002) 15 LJIL 553, at 575–9. A middle ground has been pursued by ICJ President Rosalyn Higgins; see R. Higgins, ‘A Babel of Judicial Voices? Ruminations from the Bench,’ (2006) 55 ICLQ 791 (suggesting that commentators may have exaggerated the potential for fragmentation, as in her view the different international courts will seek common approaches wherever possible).

5. ‘Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law,’ Yearbook of the International Law Commission (2006), available at http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/1_9_2006.pdf.

6. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 392 (hereinafter Nicaragua), paras. 109–110, 115.

7. Bosnia v. Serbia, supra note 1, paras. 391, 399, 401 (affirming the legal tests established in Nicaragua).

8. Prosecutor v. Tadić, Judgement, Case No. IT-94–1-A, App.Ch., 15 July 1999 (hereinafter Tadić Appeal), para. 145.

9. Infra section 3.1.1.–3.1.2.

10. Infra section 3.2.1.

11. See, e.g., M. Sassòli and G. Olson, ‘International Decision: Prosecutor v. Tadić’, (2000) 94 AJIL 571, at 575; M. A. Drumbl, ‘Looking Up, Down and Across: The ICTY's Place in the International Legal Order’, (2003) 37 New England Law Review 1037, at 1050–51. D. Jinks, ‘State Responsibility for Acts of Private Armed Groups’, (2003) 4 Chicago Journal of International Law 83, at 89; M. Sassòli, ‘State Responsibility for Violations of International Humanitarian Law’, 2002 (June) 84 International Review of the Red Cross 401, at 407–8.

12. Nicaragua, supra note 6, at paras. 109–110, 115.

13. Ibid., para. 109.

14. Ibid., para. 115.

15. Although as the former ICTY president Theodore Meron points out, the Nicaragua case was first ‘discovered’ by the ICTY in a review of the Indictment in Prosecutor v. Rajić, Review of the Indictment Pursuant to Rule 61, Case No. IT-95–12-R61, T. Ch., 13 September 1996. See T. Meron, ‘Classification of Armed Conflict in the Former Yugoslavia: Nicaragua's Fallout,’(1998) 92 AJIL 236, at 240.

16. Prosecutor v. Tadić, Defence Motion for Appeal on Jurisdiction, Case No. IT-94–1-AR72, A. Ch., 2 October 1995, para. 84.

17. Tadić Appeal, supra note 8, at paras. 80–82.

18. For a compelling argument in favour of the extension of the ‘grave breaches’ regime to non-international armed conflicts, see T. Meron, ‘International Criminalization of Internal Atrocities,’ (1995) 89 AJIL 554. See also Prosecutor v. Tadić, Separate Opinion of Judge Abi-Saab on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case IT-94–1-AR72, 5–6, 2 October 1995, para 5.

19. SC Res. 752, UN Doc. S/RES/752 (1992), para. 4.

20. Prosecutor v. Tadić, Opinion and Judgement, Case No. IT-94–1-T, T.Ch. II, 7 May 1997, paras. 113–118 (hereinafter Tadić trial judgment).

21. The extent of control that the FRY maintained over the VRS also became a critical issue for the ICJ in Bosnia v. Serbia as it tried to determine whether the acts of the VRS at Srebrenica could be attributed to the Serbian state. See infra section 3.2.

22. See Tadić trial judgment, supra note 20, at para. 560.

23. Tadić trial judgment, supra note 20, para. 587.

24. Ibid., at para. 585. As subsequently observed by commentators, the part of the Nicaragua judgment that determined that the rules of international armed conflict could be applied to US–Nicaragua relations was not dependent on the outcome of any attribution test. See, e.g., Meron, supra note 15, at 241.

25. Tadić trial judgment, supra note 20, at paras. 588, 595.

26. Ibid., at para. 605.

27. Ibid., Separate and Dissenting Opinion of Judge McDonald Regarding the Applicability of Article 2 of the Statute, para. 22 (hereinafter Tadić McDonald dissent).

28. Nicaragua, supra note 6, at para. 109.

29. Tadić McDonald dissent, supra note 27, at para. 32.

30. Tadić Appeal, supra note 8, at para.115.

31. Ibid., at para. 104 (emphasis omitted).

32. Ibid., at para. 112.

33. Ibid., at para. 115.

34. Ibid., at paras. 116–123.

35. Ibid., at paras. 124–136. The Appeals Chamber's interpretation of some of the cases that it claims represent ‘state practice’ on the issue of state responsibility has been criticized. See M. Milanović, ‘State Responsibility for Genocide,’ (2006) 17 EJIL 553 at 586 (arguing that the cases relied on by the Appeals Chamber represent issues of attribution for the purposes of outsourcing (Kenneth P. Yeager v. Islamic Republic of Iran, 17 Iran–US Claims Tribunal Reports (1987)) and establishing territorial jurisdiction as a prerequisite to the obligations of human rights treaties (Loizidou v. Turkey (Merits), ECHR, Judgment of 18 December 1996) (40/1993/435/514), rather than the attribution of individual acts to the state).

36. Tadić Appeal, supra note 8, at para. 137.

37. Ibid.

38. Ibid., at para. 141.

39. See Milanović, supra note 35, at 581.

40. See, e.g., M. C. Bassiouni, ‘The Normative Framework of International Humanitarian Law: Overlaps, Gaps and Ambiguities,’ (1998) 8 Transnational Law and Contemporary Problems 199, at 226–7; Sassòli and Olson, supra note 11, at 578; International Law Commission, ‘Report on the Work of its Fifty-Third Commission,’ (2001) A/56/10 at 106 (Commentary to Article 8 suggesting that the ICTY's competence is not on the issue of the appropriate standard for state responsibility).

41. There is, however, a persuasive argument to be made that there was no need for a specific test on this issue since the guidance provided by IHL and the principles of international law more generally are sufficient for the task. See Meron, supra note 15, at 241.

42. Bosnia v. Serbia, supra note 1, at para. 404.

43. Ibid.

44. Ibid., at para 405. Cf. Tadić Appeal, supra note 8, at para. 104.

45. See, e.g., Prosecutor v. Aleksovski, Appeals Judgement, Case No. IT-95-14/1-A, 24 March 2000, paras. 131–134; Prosecutor v. Celebici Appeals Judgement, Case No. IT-96-21-A, 20 February 2001, para. 26; Prosecutor v. Kordic and Cerkez, Appeals Judgement, Case No. IT-95–14/2-A, 17 December 2004, paras. 299–313.

46. See ‘Décision sur la confirmation des charges’, Pre-trial Chamber of the International Criminal Court, ICC-01/04–01/06–803, 29 January 2007, paras. 210–211.

47. Bosnia v. Serbia, supra note 1, at para. 180.

48. Ibid., at para. 181.

49. Ibid., at para. 182.

50. Ibid., at para. 219. On the issue of the standard of proof, Bosnia argued that because this was a civil case, a preponderance of the evidence standard should be used. Serbia argued that given the exceptional gravity of the accusation, the standard should be beyond a reasonable doubt. Using its language from Corfu Channel (United Kingdom v. Albania), [1949] ICJ Rep. 4, the Court essentially favoured Serbia's view, holding that a ‘fully conclusive’ standard of proof was appropriate for a crime as serious as genocide, Bosnia v. Serbia, supra note 1, at para. 209. Then, the Court stated that ‘the same standard applies to the proof of attribution for such acts’ without providing any additional justification for why this should be so. Ibid. 

51. Bosnia v. Serbia, supra note 1, at para. 217.

52. Ibid., at paras. 276, 297.

53. Ibid., at para. 319.

54. Ibid., at paras. 334, 354.

55. Ibid., at para. 361.

56. Ibid., at para. 367.

57. Ibid., at paras. 277, 319, 334, 354.

58. Prosecutor v. Krstić, Judgement, Case No. IT-98–33, T.Ch. I, 2 August 2001; Prosecutor v. Krstić, Judgement, Case No. IT-98–33-A. A.Ch., 19 April 2004.

59. Bosnia v. Serbia, supra note 1, at para. 296.

60. See ibid., at para. 214 (explaining that the fact-finding of the ICTY uses ‘evidence obtained by examination of persons directly involved, tested by cross-examination, the credibility of which has not been challenged subsequently’) (internal quotations omitted).

61. Ibid., at para. 277.

62. Ibid., at para. 354.

63. Ibid., at paras. 374(e)(f).

64. Ibid., at para. 374(g).

65. Ibid., at paras. 448–50.

66. See supra note 60.

67. Bosnia v. Serbia, supra note 1, at para. 374 (emphasis added).

68. Ibid., at paras. 297, 376.

69. See text accompanying supra note 21.

70. Statute of the International Criminal Tribunal for the former Yugoslavia, UN Doc. S/RES/827 (1993), Article 1.

71. See supra section 2.1.

72. See J. Crawford, The International Law Commission's Articles on State Responsibility (2002), 94 (under Article 4 of the ILC Articles on State Responsibility, actions of people or entities that have the status of state organs under the internal law of the state, will be attributed to the state itself.); ibid., at 110 (under Article 8 of the ILC Articles on State Responsibility, the acts of certain non-state actors can be attributed to the state when they are ‘in fact acting on the instructions of, or under the control of, that State in carrying out the conduct’.) In Bosnia v. Serbia the ICJ uses the language of Article 8 and of the ‘effective control’ test under Nicaragua interchangeably. See Bosnia v. Serbia, supra note 1, para. 400.

73. Ibid., paras 385–412.

74. Ibid., para. 204.

75. Ibid.

76. M. Milanović, ‘State Responsibility for Genocide: A Follow-Up’, (2007) 18 (4) EJIL 677, at n. 34.

77. Bosnia v. Serbia, supra note 1, CR 2006/30, 18 April 2006, para. 19 (Beisen).

78. See, e.g., R. Wedgwood, ‘Slobodan Milošević's Last Waltz’, International Herald Tribune, 12 March 2007; M. Simons, ‘Genocide Court Ruled for Serbia Without Seeing Full War Archive’, New York Times, 9 April 2007.

79. Bosnia v. Serbia, supra note 1, at para. 44.

80. Ibid., at para. 206.

81. Ibid.

82. Ibid., at para. 389.

83. Ibid., at para. 394.

84. Ibid., at para. 395. For an excellent critique of the ICJ's passivity with regards to seeking out publicly available information regarding the relationship between the Scorpions and the FRY, see Milanović, supra note 76.

85. Bosnia v. Serbia, supra note 1, para. 395.

86. Ibid., at para. 408.

87. Ibid., at para. 410.

88. Ibid., at para. 412.

89. Ibid., at para. 413.

90. Lawyers who have seen the files have spoken on condition of anonymity, saying that the documents showed ‘how Belgrade financed and supplied the war in Bosnia, and how the Bosnian Serb army, though officially separate after 1992, remained virtually an extension of the Yugoslav Army . . . [and that] . . . Serbian forces, including secret police, played a role in the takeover of Srebrenica and in the preparation of the massacre there’. Simons, supra note 79.

91. In the course of the Milošević trial, the trial chamber of the ICTY concluded that ‘there is sufficient evidence that genocide was committed in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi’. Prosecutor v. Slobodan Milošević, Decision on Motion for Judgement of Acquittal, Case No. IT-02–54-T, 16 June 2004, para. 289. This statement was made in the Decision on Motion for Judgement of Acquittal of Milošević in June 2004, after the trial chamber had access to the unredacted versions of the FRY Council documents, but of course does not carry the evidentiary weight of a final judgment.

92. Bosnia v. Serbia, supra note 1, Dissenting Opinion of Vice-President Al-Khasawneh, para. 35.

93. Corfu Channel, supra note 50, Merits, Judgment of 9 April 1949.

94. Ibid., at 18.

95. See supra note 4.

96. See Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, [2005] ICJ Rep., at para. 345.

97. See ‘Décision sur la confirmation des charges’, supra note 47, at paras. 217, 220.

98. Bosnia v. Serbia, supra note 1, at para. 182.

99. See supra section 3.1.1.