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Pace International Review

Volume 21 Issue 1 Winter 2009 Article 2

January 2009

Res Judicata in the ICJ's Genocide Case: Implications for Other and ?

Michael Ottolenghi

Peter Prows

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Recommended Citation Michael Ottolenghi and Peter Prows, in the ICJ's Genocide Case: Implications for Other Courts and Tribunals?, 21 Pace Int'l L. Rev. 37 (2009) Available at: https://digitalcommons.pace.edu/pilr/vol21/iss1/2

This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. 26570_pir_21-1 Sheet No. 25 Side A 04/08/2009 15:17:04 1 HE T and has, Judg- Geno- 1 available 24-MAR-09 7:19 Article 59, 1240 (Andreas res judicata Genocide case”) This comment 3 res judicata Seq: 1 Seq: OMMENTARY Genocide : A C Rudolf Bernhardt, case (“ USTICE J unknown See also 37 case will be remembered mostly case will be remembered OURT OF Evidentiary Issues in the ICJ’s C . 889 (2007). Genocide has received less attention. UST case was rendered. The views expressed in this article are . J NTERNATIONAL RIM I , Andrea Gattini, C While the important evidentiary issues in the While the important evidentiary COURTS AND TRIBUNALS? COURTS L ’ 2 Genocide e.g. case’s analysis and use of the doctrine of case’s analysis and use of the Michael Ottolenghi* & Peter Prows** Michael Ottolenghi* NT , res judicata Application of the Convention on the Prevention and Pun- Convention on the Prevention Application of the CASE: IMPLICATIONS FOR OTHER FOR IMPLICATIONS CASE: Pieter H.F. Bekker, Council Comment: The International of ’s Pieter H.F. Bekker, Council Comment: See Application of Convention on Prevention and Punishment of Crime of Geno- Application of Convention on Prevention The International Court of Justice’s (“ICJ”) 2007 Court of Justice’s (“ICJ”) 2007 The International 2 3 1 case have started to generate their own commentary, the case have started to generate *and a Michael Ottolenghi is an associate at White & Case LLP in New York , 5 J. I (Bosn. & Herz. v. Serb. & Mont.) (Judgment of Feb. 26, 2007) ¶ 115, (Bosn. & Herz. v. Serb. & Mont.) (Judgment ** Invester & Bazel LLP in San Fran- Peter Prows is an associate at Briscoe http://www.icj-cij.org/docket/files/91/13685.pdf (last visited date Feb. 24, 2009) http://www.icj-cij.org/docket/files/91/13685.pdf RES JUDICATA IN THE ICJ’S GENOCIDE IN THE ICJ’S RES JUDICATA TATUTE OF THE M K at ment cide solely those of the authors. Zimmerman et al. eds., 2006) [hereinafter Zimmerman Commentary]. [hereinafter 2007 Judgment]. ishment of the Crime of Genocide ishment of the in the S for other courts and tribunals. It argues that the anomalous as well as the Court’s legal factual circumstances of the case, Genocide \\server05\productn\P\PIR\21-1\PIR102.txt member of the New York . and California Bars.cisco and is a member of the New York He was a law clerk to Court of Justice when the 2007 Judg- Abdul G. Koroma of the International ment in the cide Decision in Bosnia and Herzegovina v. Serbia and Montenegro, ASIL Newsletter, Decision in Bosnia and Herzegovina v. Spring 2007, at 8. issue of “for the wider impact it will have on issues of “for the wider impact it will have perhaps predictably, already attracted significant attention already attracted significant perhaps predictably, community.from the academic this attention has fo- Much of commentator has of the judgment, but one cused on the merits the suggested that attempts to fill this void by assessing the implications of the attempts to fill this void by assessing .” C Y 26570_pir_21-1 Sheet No. 25 Side A 04/08/2009 15:17:04 A 04/08/2009 25 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 25 Side B 04/08/2009 15:17:04 2 M K C Y res Genocide [Vol. 21:37 24-MAR-09 7:19 cases, and of cases, and Seq: 2 Seq: issues and on the impor- Use of Force Use of Force case represented a softening case represented unknown I. was based solely on its was based solely res judicata in the context of its prior jurispru- in the context Genocide case for other international courts and case for other international courts On the same day, Bosnia requested the On the same day, Bosnia requested 4 . comment explains the Court’s Next, this res judicata PACE INT’L L. REV. Genocide res judicata case on March 20, 1993 for alleged breaches of, case on March 20, 1993 for alleged , the 1948 Convention on the Prevention and Punish- , the 1948 Convention on the Prevention res judicata case, as well as the related well as the related case, as in the Court’s , as the Court clearly noted as the Court clearly in the Court’s jurisprudence, Article IX of the Genocide Convention provides that: Article IX of the Genocide Convention provides This comment first gives a concise procedural history of the history a concise procedural first gives This comment Bosnia and Herzegovina (“Bosnia”) filed its application in- Bosnia and Herzegovina (“Bosnia”) Genocide 4 Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relat- ing to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute. judicata application of inter alia case did provide one important clarification on the source of one important clarification on case did provide 38 se- particular Statute, to its carefully circumscribed reasoning and tribunals. for other courts its usefulness verely limit Genocide \\server05\productn\P\PIR\21-1\PIR102.txt ment of the Crime of Genocide (the “Genocide Convention”), ment of the Crime of Genocide contained in Article IX of the under the compromissory clause Genocide Convention. Court to indicate provisional measures ordering Serbia to cease Court to indicate provisional measures for armed attacks in Bosnia and desist from its alleged support individual and collective self-de- and affirming Bosnia’s right to Convention on the Prevention and Punishment of the Crime of Genocide, art. IX, Convention on the Prevention and Punishment of the Crime of Genocide, art. Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277 [hereinafter “Genocide Convention”]. its application of its application dence, observing that the dence, observing and did not rely on any “general principle of law.”and did not rely Finally, this with reflections on the relevance—orcomment concludes lack thereof—of the of the “triple identity test” that was the hallmark of the Court’s test” that was the hallmark of the “triple identity existing practice. that the This comment then notes the jurisdictional objections that gave rise to the Court’s appli- rise to the Court’s that gave objections the jurisdictional cation of tribunals when faced with tance of appreciating the applicable law, the procedural context, tance of appreciating the applicable and the in each case. Federal Republic of Yugosla- stituting proceedings against the and, finally, simply Serbia) in via (later, Serbia and Montenegro the https://digitalcommons.pace.edu/pilr/vol21/iss1/2 26570_pir_21-1 Sheet No. 25 Side B 04/08/2009 15:17:04 B 04/08/2009 25 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 26 Side A 04/08/2009 15:17:04 3 5 39 This 6 24-MAR-09 7:19 Bosnia, of 8 CASE under Article Seq: 3 Seq: GENOCIDE ratione personae unknown note 1, at ¶ 106. XI of the Genocide Conven- Article supra and precluded Serbia from becoming a party and precluded 7 RES JUDICATA IN THE ICJ’S THE ICJ’S IN JUDICATA RES at 12-13 (quoting S.C. Res. 777 (Sept. 19, 1992) and G.A. Res. 47/1 (Sept. at 12-13 (quoting S.C. Res. 777 (Sept. 19, 2007 Judgment, Application of Convention on Prevention and Punishment of Crime of Geno- on Prevention and Punishment of Application of Convention Id. Statute provides: Article 35, paragraphs 1 and 2, of the ICJ 8 5 6 7 1. parties to the present Statute. The Court shall be open to the states 2.Court shall be open to other states The conditions under which the contained in treaties in force, be shall, subject to the special provisions in no case shall such conditions laid down by the Security Council, but before the Court. place the parties in a position of inequality The present Convention shall be open until 31 December 1949 for signa- ture on behalf of any Member of the United Nations and of any nonmem- ber State to which an invitation to sign has been addressed by the General Assembly. The present Convention shall be ratified, and the in- struments of ratification shall be deposited with the Secretary-General of the United Nations. may After 1 January 1950, the present Convention be acceded to on behalf of any Member of the United Nations and of any non-member State which has received an invitation as aforesaid. Instru- M K tion reads: 22, 1992), which each considered that Serbia “cannot continue automatically the 22, 1992), which each considered that United Nations” and which together de- membership of the former [SFRY] in the in the United Nations and that it cided that Serbia “should apply for membership General Assembly”). shall not participate in the work of the 2009] fense. measures in kind. provisional in turn, requested Serbia, was the legal continuator that it the time maintained Serbia at (“SFRY”) of Yugoslavia Federal Republic Socialist of the former SFRY’s UN Membership inherited the as such, it had and that, was op- this contention but international obligations, and its Assembly. Council and the General posed by the Security \\server05\productn\P\PIR\21-1\PIR102.txt to the Genocide Convention under its Article XI. Convention under its Article to the Genocide cide, Request for the Indication of Provisional Measures (Bosn. & Herz. v. Serb. & Indication of Provisional Measures (Bosn. cide, Request for the [hereinafter 1993 I.C.J. Request for Provi- Mont.), 1993 I.C.J. 3, 7-10 (Apr. 8, 1993) sional Measure]. art. 35, ¶¶ 1-2, June 26, 1945, 59 Stat. Statute of the International Court of Justice of the ICJ].1055, 156 U.N.T.S. 77 [hereinafter Statute With respect to paragraph its Resolution 9 of October 15, 1946 pro- 2 of this Article, the Security Council in “shall be open” to a State not party to its vides the conditions by which the Court deposited with the Court’s Registrar a dec- Statute, namely that it have previously and Rules of the Court and undertak- laration accepting the , Statute, of the Court and accept all of the ing to comply in good faith with the decisions Nations under Article 94 of the . obligations of a Member of the United 15, 1946). S.C. Res. 9, ¶ 1, U.N. Doc. S/RES/9 (Oct. 35 of its Statute political position meant that Serbia did not, at that stage, raise meant that Serbia did not, at political position (and which are objections that it later would the jurisdictional Membership both namely that its lack of UN discussed below), of jurisdiction deprived the Court C Y 26570_pir_21-1 Sheet No. 26 Side A 04/08/2009 15:17:04 A 04/08/2009 26 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 26 Side B 04/08/2009 15:17:04 4 M K C Y 13 over prima Even if [Vol. 21:37 11 24-MAR-09 7:19 over Serbia over Bosnia, 9 Seq: 4 Seq: ratione materiae Order”) noted that the Order”) In light of Serbia’s pur- 12 . Serbia also argued that ratione personae ratione personae unknown Genocide note 1, at ¶ 106. note 4, at art. XI. ratione materiae supra PACE INT’L L. REV. supra jurisdiction to issue provisional orders. jurisdiction to The Court, however, considered that the issue, which considered that the issue, The Court, however, 10 at 16. 2007 Judgment, 1993 I.C.J. Request for Provisional Measures at 14. Id. Id. Id. jurisdiction on that basis and ordered the parties to take jurisdiction on that basis and In the subsequent mainline proceedings, Serbia raised vari- In the subsequent mainline proceedings, In its ancillary proceedings on provisional measures, the measures, on provisional proceedings In its ancillary 9 10 11 12 13 ments of accession shall be deposited with the Secretary-General of the ments of accession shall be deposited with United Nations. facie Genocide Convention, ous objections to the Court’s jurisdiction ous objections to the Court’s jurisdiction Court in its 1993 Order (“1993 its 1993 Order Court in prima facie 40 possi- issues and thereby to raise these did not wish course, also case. in its own jurisdiction bly undermine \\server05\productn\P\PIR\21-1\PIR102.txt all measures within their power to prevent genocide in the all measures within their power aggravation of the dispute. others’ territory and to avoid any remained uncontested by the parties, was one which the Court by the parties, was one remained uncontested present stage of to determine definitively at the “[did] not need to satisfy itself of since the Court needed only the proceedings,” ported acceptance of the SFRY’s international obligationsported acceptance of the SFRY’s the that Serbia was party Court had little difficulty in determining to the Genocide Convention. As a result, the Court had the Court lacked jurisdiction the Court lacked jurisdiction UN Membership status of Serbia “[was] not free from legal diffi- not free from of Serbia “[was] status UN Membership culties.” Bosnia’s claims under the Genocide Convention.Bosnia’s claims under the Genocide ar- Serbia first not amount to a “dispute” under gued that Bosnia’s claims did and thus that the Court Article IX of the Genocide Convention, lacked jurisdiction under Article 35(1) of its Statute on the basis of UN Member- of its Statute on the basis under Article 35(1) Article IX of the took the provisional view that ship, the Court was a “special provision[Genocide Convention ] contained in [a] it, would confer and, if Serbia were party to treat[y] in force,” 35(2). such jurisdiction under Article since Bosnia allegedly did not have the capacity to become party since Bosnia allegedly did not have the breakup of the former to the Genocide Convention following the Court did not have jurisdiction the Court did not https://digitalcommons.pace.edu/pilr/vol21/iss1/2 26570_pir_21-1 Sheet No. 26 Side B 04/08/2009 15:17:04 B 04/08/2009 26 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 27 Side A 04/08/2009 15:17:04 5 41 Ge- The 21 24-MAR-09 7:19 , the Court CASE of the 1996 Jurisdiction over case. Serbia’s re- Seq: 5 Seq: 18 GENOCIDE dispositif ratione personae Genocide ex officio The Initiative was lodged con- unknown In the 20 17 Judgment”) readily dismissed Ser- readily dismissed Judgment”) Serbia proceeded to lodge a new round Serbia proceeded to lodge a new note 1, at ¶ 81. Bosn. & Herz. v. Serbia and Montenegro, 1996 I.C.J. Bosn. & Herz. v. Serbia and Montenegro, 19 , supra Genocide The Court also had little difficulty in finding The Court also 16 The Court in its 1996 Judgment on preliminary in its 1996 The Court 14 RES JUDICATA IN THE ICJ’S THE ICJ’S IN JUDICATA RES at ¶ 26. Article 61 provides in relevant part: at 616. at 610. at 610-13. at 623. Judgment the Court thus found without qualification Judgment the Court thus found With regard to jurisdiction With regard to Application of Convention on Prevention and Punishment of Crime of Geno- Application of Convention on Prevention Id. Id. Id. Id. 2007 Judgment, Id. Id. 15 Following the overthrow of the Milo˘sevic regime in October Milo˘sevic Following the overthrow of the 14 15 16 17 18 19 20 21 M K 595, 609-10 (July 11, 2006). nocide that: “on the basis of Article IX of the Convention on the Pre- that: “on the basis of Article IX Crime of Genocide, it has juris- vention and Punishment of the dispute.” diction to adjudicate upon the 2009] Yugoslavia. \\server05\productn\P\PIR\21-1\PIR102.txt currently with an application under Article 61 of the ICJ Stat- currently with an application Judgment on jurisdiction. ute for “revision” of the 1996 cide, Preliminary Objections that, as a UN Member and an independent state recognized as and an independent state that, as a UN Member became party to in the Dayton Accords, Bosnia such by Serbia when it deposited a Notice of the Genocide Convention in 1992 to succeed to the SFRY’s obliga- Succession stipulating its wish tions under the Convention. newed jurisdictional challenge was contained in its 2001 “Initia- newed jurisdictional challenge tive to the Court to Reconsider of jurisdictional objections in the of jurisdictional objections in objections (“1996 objections bia’s first objection, finding that Article IX of the Genocide Con- IX of the Genocide that Article objection, finding bia’s first and State responsibility” any form of “does not exclude vention the facts differences over had manifest parties indeed that the the Conven- their legal consequences under of the conflict and tion. 2001, Serbia abandoned its claim to being the continuator of the 2001, Serbia abandoned its claim Genocide Convention and a UN SFRY and to being party to the Member on this basis. observed that Serbia continued to maintain that it was the legal continued to maintain that observed that Serbia not dispute that SFRY and that the parties did successor to the the Court thus to the Genocide Convention; Serbia was party provisions of the Serbia “was bound by the determined that in the the date of the filing of the Application Convention on present case.” Yugoslavia” (the “Initiative”). C Y 26570_pir_21-1 Sheet No. 27 Side A 04/08/2009 15:17:04 A 04/08/2009 27 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 27 Side B 04/08/2009 15:17:04 6 M K C Y note supra [Vol. 21:37 24-MAR-09 7:19 The second Reservations to 23 Cf. Seq: 6 Seq: note 1, at ¶ 21 (Al-Khasawneh, been a UN Member in any UN Member in been a supra not unknown note 1, at ¶ 26. The Court’s 2007 Judgment in the note 1, at ¶¶ 26-28. a reservation to Article Whether because Serbia was ineligible to be a party because Serbia note 7, at art. 61. supra supra PACE INT’L L. REV. supra case did not address the question of whether, under Article XI of the case did not address the question of 2007 Judgment, 2007 Judgment, ratione materiae ratione materiae Serbia’s Initiative thus raised two interrelated jurisdic- thus raised two interrelated Serbia’s Initiative 22 23 1. An application for revision of a judgment may be made only when it is 1. An application for revision of a judgment such a nature as to be a decisive based upon the discovery of some of was given, unknown to the factor, which fact was, when the judgment always provided that such Court and also to the party claiming revision, ignorance was not due to negligence. 22 IX—which Kingdom and others—is has been objected to by the United consistent and thus whether Serbia after it with the object and purpose of the Convention, 2001 actually became a party to the Con- deposited its instrument of accession in in its 2007 Judgment. vention, was not addressed by the Court Statute of the ICJ, 4, at art. XI. Al-Khasawneh’s dissenting opinion, however, noted Vice-President Affairs considers that General Assembly that the United Nations Office of Legal 5 urges those States which have not Resolution 43/138 (1988), which in paragraph ratify it or accede without further delay, yet become parties to the Convention to “amounts to a general invitation to non-Members to become a party to the Geno- cide Convention,” thus constituting a valid “invitation” for all states to accede under Article XI. the General Assem- In this respect, the court further noted that of bly never addressed a specific invitation to the Democratic People’s Republic on Korea to join the Convention, but that its instrument of accession was accepted the January 31, 1989 (more than two years before it became a UN Member) on basis of Resolution 43/138. 2007 Judgment, Convention on Prevention and Punishment of Crime of Genocide, Advisory Opin- Convention on Prevention and Punishment ion, 1951 I.C.J. 15 (May 28, 1951). J., dissenting). Genocide Convention, Serbia was eligible in 1993 to become a party to the Geno- Genocide Convention, Serbia was eligible . . . addressed by the General Assem- cide Convention on the basis of “an invitation bly” rather than on the basis of UN Membership. Genocide Convention, tional challenges. lacked jurisdic- The first was that the Court tion Genocide 42 had argued that Serbia Initiative \\server05\productn\P\PIR\21-1\PIR102.txt form until its admission to the United Nations as a “new Mem- Nations as a “new to the United its admission form until a party to had not been and that it November 1, 2000 ber” on deposited 8, 2001 when it until March Convention the Genocide to the Ge- a reservation containing of accession its instrument in Article compromissory clause contained nocide Convention’s IX. jurisdictional challenge raised by Serbia was that the Court jurisdictional challenge raised to the Genocide Convention and its Article IX compromissory Convention and its Article IX to the Genocide in this and Herzegovina filed its application clause when Bosnia a UN Member at 20, 1993 since Serbia was not case on March qualification to Membership is the primary that time and UN XI. to the Convention per Article become a party https://digitalcommons.pace.edu/pilr/vol21/iss1/2 26570_pir_21-1 Sheet No. 27 Side B 04/08/2009 15:17:04 B 04/08/2009 27 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 28 Side A 04/08/2009 15:17:04 7 43 sui Geno- of the See also id. In 2003, a-vis the case took 24-MAR-09 7:19 26 . CASE cases to dis- Genocide Seq: 7 Seq: under Article 35, under GENOCIDE Use of Force Serbia against each of the Serbia against ratione materiae by or unknown Application for Revision Judgment”), the Court had also re- Judgment”), the Court had also The Court in 1999 had dismissed Ser- The Court in 1999 had dismissed ratione personae ratione 25 Revision ratione temporis case, finding that Serbia’s admission as a new UN case, finding that Serbia’s admission cases on the basis that on prima facie review it had cases on the basis that on prima RES JUDICATA IN THE ICJ’S THE ICJ’S IN JUDICATA RES of Use of Force (Yugo. v. Belg.), Provisional Measures, 1999 Legality of Use of Force (Yugo. v. Belg.), Legality of Use of Force (Serb. & Mont. v. Belg.), 2004 I.C.J. 279 (Dec. Legality of Use of Force (Serb. & Mont. or party to any relevant jurisdiction-conferring “special jurisdiction-conferring to any relevant or party position which the FRY found itself in vis-` position which the FRY found 24 U.N. Charter art. 93(1), at para. 1. See See case (“2003 By the time the oral hearings in the By the time the Genocide 24 25 26 M K cide generis I.C.J. 124, 134-35 (June 2, 1999) (finding that the “dispute” arose at the start of the I.C.J. 124, 134-35 (June 2, 1999) (finding 1999, rather than with each individual NATO bombing campaign on March 24, date, and thus that Serbia’s acceptance of NATO air attack continuing after that the Court’s compulsory jurisdiction on April 25, 1999 was untimely). United Nations over the period 1992 to 2000, or its position in United Nations over the period at 138 (finding that “the threat or use of force against a State cannot in itself con- stitute an act of genocide within the meaning of Article II of the Genocide Conven- the tion; and . . . it does not appear at the present stage of proceedings that the bombings which form the subject of the Yugoslav Application ‘indeed entail element of intent, towards a group as such, required by [Article II]’” and thus that the acts complained of did not appear to be capable of coming within the provisions of the Genocide Convention). Use of Force 2009] jurisdiction lacked \\server05\productn\P\PIR\21-1\PIR102.txt 15, 2004). provisions contained in treaties in force” on the date of the filing on the date of treaties in force” contained in provisions of the application. bia’s Requests for the Indication of Provisional Measures in the bia’s Requests for the Indication Member in 2000 “cannot have changed retroactively the Member in 2000 “cannot have no jurisdiction NATO countries who participated in the 1999 Kosovo cam- who participated in the 1999 NATO countries paign. targets was that the bombing of Serbian Serbia claimed law. under customary international unlawful and excessive As Article IX of for jurisdiction, Serbia invoked the primary basis the Genocide Convention—to Serbia at the time was still which of being the continuator state claiming to be party on the basis of the former SFRY. miss eight other cases brought miss eight other in its Judgment on Serbia’s paragraphs (1) and (2), of the ICJ Statute insofar as Serbia was insofar as Serbia of the ICJ Statute (1) and (2), paragraphs on that the ICJ Statute thus party to Member, and not a UN basis, fused to revise its 1996 judgment on preliminary objections in fused to revise its 1996 judgment the Court’s 1996 Judgment on Preliminary Objections in the Court’s 1996 Judgment on Preliminary place in Spring 2006, Serbia’s “Initiative” had already been ac- 2006, Serbia’s “Initiative” had place in Spring in the separate cepted by the Court C Y 26570_pir_21-1 Sheet No. 28 Side A 04/08/2009 15:17:04 A 04/08/2009 28 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 28 Side B 04/08/2009 15:17:04 8 M K C Y ra- over Use of ratione grounds [Vol. 21:37 24-MAR-09 7:19 at 291. Although judge appointed by Id. cases and the Court .” ratione personae Seq: 8 Seq: ad hoc ratione personae ratione personae Use of Force case for lack of jurisdiction ratione personae unknown —wentto on accept effectively 28 Use of Force case to visit the issue (for the first time) in its case to visit the issue (for the first time) , as suggested by the 1999 Order on Provisional 2004 I.C.J. at 286-87; I.C.J. Statute art. 31, paras. (2) & 2004 I.C.J. at 286-87; I.C.J. Statute art. Genocide PACE INT’L L. REV. See judge ended up casting the deciding vote as to the deciding up casting judge ended 27 ratione materiae cases for lack of jurisdiction cases for lack of 2004 I.C.J. at 330 (Dec. 15, 2004) (Joint Declaration of Vice-Presi- 2004 I.C.J. at 330 (Dec. 15, 2004) (Joint grounds. In reaching this conclusion, the Court found that: (i) conclusion, the Court found In reaching this See Application for Revision of Judgment of July 11, 1996 in Concerning of Judgment of July 11, 1996 in Application for Revision ad hoc and/or 29 Together with its 2001 Initiative and its Application for Revision of the Together with its 2001 Initiative and See Judge Simma recused himself from the In 2004, however, a bitterly divided Court—in divided however, a bitterly In 2004, which the cases from asking the Court to find jurisdiction to asking the Court simply cases from asking the Court to find jurisdiction 29 27 28 [G]oing beyond what the Applicant requested in the present case, the [G]oing beyond what the Applicant requested Court has devoted some 23 paragraphs to laying the grounds for a finding that Article 35, paragraph 2, of the Statute could not have been an alter- native basis for allowing access to the Court in respect of the Genocide Convention so far as Serbia and Montenegro is concerned. This exercise was clearly unnecessary for the present case. can lie, and Its relevance only lie, in another pending case. temporis tione personae Force Serbia; in the 2004 Judgment the non-recused regular members of the Court would Serbia; in the 2004 Judgment the non-recused for the dismissals by a tie vote of seven to be divided as to the essential reasoning the decisive vote for dismissal on seven, with the Serbian judge then casting set up the Court in the considered it sufficient for the NATO countries’ interests in their respective cases considered it sufficient for the NATO countries’ there were of British, Dutch and for the preliminary objections phase that French nationalities already on the .the The Court thus refused to allow nationality on the bench to appoint a NATO countries without a judge of their judge in their cases. 2007 Judgment. Higgins predicted conflict over this issue in her separate Judge opinion: 2004 I.C.J. at 336, 341 (separate opinion of Judge Higgins). the Court was unanimous in finding that it lacked jurisdiction, seven of the fifteen the Court was unanimous in finding that judges would have dismissed the (5). including the This left a total of only 15 judges, Measures. dent Ranjeva, Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Bu- dent Ranjeva, Judges Guillaume, Higgins, ergenthal and Elaraby). Dismissing the case on broader Application of the Convention on the Prevention and Punishment of the Crime of on the Prevention and Punishment Application of the Convention 2003 I.C.J. 7, v. Yugo.), Preliminary Objections, Genocide (Bosn. & Herz. (Feb. 31 3, 2003). Serbian 44 Genocide and the of the Court to the Statute relation Convention.” Use of Force \\server05\productn\P\PIR\21-1\PIR102.txt “to adjudge and declare on its jurisdiction “to adjudge and declare on its jurisdiction 1996 Genocide Serbia came to change its submissions in the case judgment, the reasons for the decisions the reasons Serbia was not a UN Member until its admission as a new a UN Member until its admission Serbia was not open to Serbia and thus the Court was not Member in 2000 the arguments made in Serbia’s Initiative and dismissed the made in Serbia’s Initiative and the arguments Serbia. https://digitalcommons.pace.edu/pilr/vol21/iss1/2 26570_pir_21-1 Sheet No. 28 Side B 04/08/2009 15:17:04 B 04/08/2009 28 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 29 Side A 04/08/2009 15:17:04 9 . , Id 45 Use of Use of vel non cases con- Genocide 24-MAR-09 7:19 case stated that CASE On the other 32 Use of Force Genocide Judgments left the Judgments left cases after it had upheld Seq: 9 Seq: and, (ii) in a lengthy and, (ii) 30 GENOCIDE at that stage and the 33 Order abstained from “de- unknown Use of Force South West Africa (Liber. V. S. Afr.), 1966 Order, the Genocide Convention’s Order, the South West Africa Genocide See 31 case. one hand, the Court could On the Genocide over Serbia in cases brought under the Geno- over Serbia in cases Genocide RES JUDICATA IN THE ICJ’S THE ICJ’S IN JUDICATA RES at 315-24. in its 1993 Order in the The Court at 324.Genocide Convention, which entered into force on Jan- Thus, the cases but which it had not yet addressed in the cases but which it had not yet Judgments that Serbia’s apparent non-membership in the Serbia’s apparent non-membership Judgments that A ready analogy might be the loss of confidence in the Court which followed Application of Convention on Prevention and Punishment of Crime of Geno- 2004 I.C.J. at 314-15. Id. Id. This holding in the 2004 This holding in 32 33 30 31 M K jurisdiction in its 1962 judgment. cluded, however, that the “treaties in force” to which Article 35(2) of the ICJ Stat- cluded, however, that the “treaties in force” the date of the entry into force of the ICJ ute refers means those treaties in force at date of the filing of an Application in a Statute, rather than those in force at the case. Force Force “a compromissory clause in a multilateral convention, such as Article IX of the “a compromissory clause in a multilateral in the present case, could, Genocide Convention relied on by Bosnia-Herzegovina facie as a special provision contained in in the view of the Court, be regarded prima a treaty in force.”The Court in its 2004 Judgment in the I.C.J. 6 (July 18, 1966); South West Africa (Eth. V. S. Afr.) 1966 I.C.J. 6 (July 18, I.C.J. 6 (July 18, 1966); South West Africa (Eth. V. S. Afr.) 1966 I.C.J. 6 (July 1966) [hereinafter South West Africa cases]. United Nations before 2000 deprived the Court of jurisdiction before 2000 deprived the Court United Nations have followed the (tenuous) set by the 2004 (tenuous) precedent set by have followed the case. 1993 The Court in its ratione personae ratione personae 2009] the ICJ Statute, 35(1) of under Article \\server05\productn\P\PIR\21-1\PIR102.txt uary 12, 1951 after the ICJ statute had entered into force in 1946, could not be uary 12, 1951 after the ICJ statute had of Article 35(2) of the ICJ Statute. such a “treat[y] in force” within the meaning its judgment in 1966 dismissing the cide, Provisional Measures (Bosn. & Herz. v. Serb. & Mont.), 1993 I.C.J. Request for Provisional Measures 3, 14 (Apr. 8). compromissory clause (Article IX) was not a “special provision[ IX) was clause (Article compromissory ] of Article the meaning in force” within in [a] treat[y] contained might allow Ser- Statute that, if it were party, 35(2) of the ICJ Court. bia access to the cide Convention. dismissing the case This would have meant years of proceedings and a for lack of jurisdiction after fourteen which likely would have seri- judgment on jurisdiction in 1996, of the Court. ously damaged the reputation discussion that contradicted the provisional view of the matter view of the the provisional that contradicted discussion the 1993 taken in before 2000—the the issue which led the Court to dismiss termine[ing] [the issue] definitively” hand, the Court could have re-examined the status of, and legal hand, the Court could have re-examined UN Membership, consequences flowing from, Serbia’s Court in a difficult situation when confronted with Serbia’s Ini- situation when confronted Court in a difficult tiative in the C Y 26570_pir_21-1 Sheet No. 29 Side A 04/08/2009 15:17:04 A 04/08/2009 29 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 29 Side B 04/08/2009 15:17:04 10 M K C Y de- “sui Geno- NTERNA- I [Vol. 21:37 24-MAR-09 7:19 in the Organi- Use of Force rights RACTICE OF THE P Seq: 10 Seq: S. C. Res. 713, U.N. Doc. S/ Judgment, was barred Judgment, was remained, is reinforced by the AW AND see also L case, while reconciling this with the HE unknown Revision , T obligations (Indeed, a sound case might still a sound case (Indeed, Genocide in the work of the General Assembly”—it never 34 OSENNE R cases that it lacked such jurisdiction, might be found cases that it lacked such jurisdiction, might note 1, at ¶ 106.The Court went on to explain: ) 35 supra HABTAI participate PACE INT’L L. REV. Use of Force over Serbia in the that the FRY apply for new Membership while actually only 1920-2005, at 605 (4th ed. 2006). It would seem that the Charter OURT ” according to the 2003 ” according to the One possible way for the Court to have reasoned that it had jurisdiction One possible way for the Court to have 2007 Judgment, C that it “shall not Judgment because “[n]either party raised the matter before party raised because “[n]either Judgment 34 35 Bosnia and Herzegovina as Applicant, while denying that the FRY was a as Applicant, while denying that the Bosnia and Herzegovina was assert- Nations as a continuator of the SFRY, Member of the United to the Stat- that the FRY was nevertheless a party ing before this Court basis of the 35, paragraph 2, thereof, or on the ute, either under Article adopted a dec- 1992 [in which the FRY declaration of 27 April was the continuator of the SFRY laration stating, inter alia, that the FRY that the SFR of Yugosla- and “shall strictly abide by all the commitments the FRY to raise the issue would via assumed internationally”]; and for its claim to be the continuator have involved undermining or abandoning membership of the United of the SFRY as the basis for continuing Nations. recommended zation had been suspended, but that its fact that Serbia claimed to be the continuator of the SFRY’s international obliga- RES/713 (Sept. 25, 1991). by its resolution 47/ For its part, the General Assembly, 1, conclusion in the ciding cide expressly stated that Serbia would not be a UN Member until it applied to become a new Member. Supp. G.A. Res. 47/1, ¶ 1, U.N. GAOR, 47th Sess., No. 49, U.N. Doc. A/47/49 (1992) (emphasis added). The view that Serbia’s generis Article 5 route may well be said to have been followed in this case with respect to Article 5 route may well be said to have Serbia. 713 (1991), did take Chapter VII The Security Council, by its resolution against the former Yugoslavia and subse- enforcement action (a weapons embargo) 777 (1992), to the General Assembly that quently recommended, by its Resolution of the General Assembly.”the FRY “shall not participate in the work S. C. Res. 1992); 777, ¶ 1, U.N. Doc. S/RES/777 (Sept. 19, in Article 5 of the UN Charter. Article 5 provides that “rights and privileges of be suspended by the General Assembly, membership” in the Organization may Council, for Members against which pre- upon the recommendation of the Security VII has been taken by the Security ventive or enforcement action under Chapter Council. suspension of the rights and privileges of Rosenne has argued that the its right to institute proceedings in the membership “could deprive a State of should proceedings be introduced or be Court, without affecting its obligations pending against it.” 2 S ratione personae Id. 46 issue in its 1996 revisit this did not expressly Court also as a UN dues- still be subject to jurisdiction cases, but could paying Respondent. \\server05\productn\P\PIR\21-1\PIR102.txt the Court” at that stage. the Court” TIONAL from accessing the Court as an Applicant, as in the the Court as an Applicant, as in from accessing have been made that Serbia, as a country under Security Coun- under Security as a country made that Serbia, have been was status UN Membership and whose cil sanctions https://digitalcommons.pace.edu/pilr/vol21/iss1/2 26570_pir_21-1 Sheet No. 29 Side B 04/08/2009 15:17:04 B 04/08/2009 29 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 30 Side A 04/08/2009 15:17:04 11 47 ra- This Geno- Geno- 36 res judi- res judi- was “not a 24-MAR-09 7:19 when it up- CASE cases precedent On this basis, the 40 Seq: 11 Seq: GENOCIDE 2004 I.C.J. at 306. ratione personae ratione personae Use of Force unknown —even Court nor the if neither the 2004 I.C.J. at 295. Order, the Court in its 2007 Order, the Court 39 see Judgment finding jurisdiction. Judgment finding note 1, at ¶ 132. note 1, at ¶ 53. Genocide If the Court had noted the troublesome issue If the Court had noted the troublesome supra Judgment took a pass: by a vote of ten votes by a vote of ten took a pass: Judgment , supra 38 Genocide had been decided “by necessary implication” had been decided “by necessary See Legality of Use of Force, Despite the Court’s recognition that its 1996 recognition that its 1996 Despite the Court’s RES JUDICATA IN THE ICJ’S THE ICJ’S IN JUDICATA RES Genocide 37 at 39-40, 52-3. nature of On the “mandatory” rather than consensual at 51. at 44-45. 2007 Judgment, Id. 2007 Judgment Id. Id. Judgment nevertheless reasoned that its jurisdiction Judgment nevertheless reasoned under Article 60 of the Court’s Statute. under Article 60 of the Court’s Judgment had not expressly revisited the question of Ser- not expressly revisited the question Judgment had Instead of either following the of either following Instead in its 1996 36 37 38 39 40 M K cide cata cata cide tione personae Article 35 of the Court’s Statute, tions and UN Membership during the period 1992-2000 and continued to pay UN tions and UN Membership during the period dues assessed to the SFRY—which Nations and General Assembly ac- the United cepted—minus Croa- the payments made by Bosnia and Herzegovina, Macedonia, tia and Slovenia. 2009] \\server05\productn\P\PIR\21-1\PIR102.txt to five it held that the jurisdictional issues raised in Serbia’s issues raised in jurisdictional held that the to five it the force of been decided with had already Initiative when it held without qualification in 1996 that it had jurisdic- when it held without qualification basis of Article IX of the Geno- tion to decide the dispute on the cide Convention. bia’s UN Membership status that had been raised but not status that had been bia’s UN Membership decided in its 1993 held its jurisdiction in 1996 of Serbia’s UN Membership status in 1993, then, “as a matter of of Serbia’s UN Membership status have resolved the related logical construction,” it must mandatory question of jurisdiction Court finally proceeded to the merits of the case. Court finally proceeded to the is not necessarily to say that the Court took the easy way out, to say that the Court took is not necessarily that its jurisdiction for it considered parties actually mentioned the issue again until Serbia’s Initia- parties actually mentioned the tive.Since this holding in 1996 was contained in the form of a and without ” as “judgment,” it remained “final matter of the consent of the parties” that Serbia might have of the parties” that Serbia matter of the consent it was, in fact, a estopped from raising anew, but waived or been under its for the Court’s jurisdiction “mandatory” prerequisite Statute. or else fully reconsidering the issue for this case, the Court in this case, the the issue for reconsidering or else fully its 2007 C Y 26570_pir_21-1 Sheet No. 30 Side A 04/08/2009 15:17:04 A 04/08/2009 30 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 30 Side B 04/08/2009 15:17:04 12 M K C Y 41 at ¶ 5 Stephan Id. [Vol. 21:37 “was not 24-MAR-09 7:19 Judgments See also finds support in these circum- in these should be discern- Seq: 12 Seq: Use of Force “applies where there is “applies res judicata ratione personae res judicata res judicata L. 591, 604-08 (2007). ] Judgment” since it was an is- L unknown ’ II. NT Thus, the issue had to be consid- There, Judge Anzilotti, basing his There, Judge Anzilotti, basing res judicata 44 46 . J. I Interpretation of Judgments Nos. 7 & Interpretation of Judgments Nos. UR (declaration of Judge Skotnikov). 45 note 1 (Judges Ranjeva, Shi & Koroma dissenting) note 1 (Judges Ranjeva, Shi & Koroma Genocide Id. note 41, at ¶ 4. note 41, at ¶ 17. note 35, at 1603). case. , 18 E supra PACE INT’L L. REV. supra supra supra , note 35, at 1599. Yet the dissenters, who were the only three judges Yet the dissenters, OSENNE 43 of the 1996 [ supra at ¶ 3. at ¶¶ 3-5. that “[i]n the Here the dissenters quoted Rosenne to the effect , The scope of a judgment’s The scope of a judgment’s , Permissible Derogation from Mandatory Rules?, Permissible Derogation from Mandatory The Problem of Party Sta- Joint Dissent, Id. Id. Joint Dissent, Interpretation of Judgments Nos. 7 & 8 (Chorzow Factory) (Ger. v. Pol.), 2007 Judgment, 42 The dissenters’ strict reading of The dissenters’ strict reading The Court’s application of application The Court’s 42 43 44 45 46 41 OSENNE Wittich (quoting 2 R tus in the Genocide Case [hereinafter Joint Dissent]; 8 (Chorzow Factory) last analysis the scope of the res judicata can only be determined by reference to last analysis the scope of the res judicata can only be determined by reference the pleadings in general, and to the parties’ submissions in particular.” dispositif 48 urged that The dissenters \\server05\productn\P\PIR\21-1\PIR102.txt sue the parties opted not to contest until Serbia’s admission as a sue the parties opted not to contest new UN Member in 2000. at that point who had actually been on the Court in 1996, ar- had actually been on the Court at that point who gued that the issue of jurisdiction 1927 P.C.I.J. (ser. A) No. 13, at 23 (Dec. 16, 1927) (Anzolotti, J., dissenting); 2 1927 P.C.I.J. (ser. A) No. 13, at 23 (Dec. 16, 1927) (Anzolotti, J., dissenting); R able from its actual text, rather than by “necessary implica- text, rather than by “necessary able from its actual 56 of the Statute therefrom, since Article tion[s]” to be drawn on which it judgment shall state the reasons requires that “[t]he is based.” stances predictably aroused a strong joint dissent and may in- joint dissent and a strong predictably aroused stances prior jurisprudence. of the Court’s questioned in light be an identity of parties, identity of cause, and identity of subject- identity of cause, and identity an identity of parties, proceedings in the earlier and subsequent matter in between the same case”—an so-called “triple identity” expression of the test. ered afresh and the Court, in turn, was obliged to dismiss the ered afresh and the Court, in 2004 case in light of its findings in the in the previous jurisprudence of the Court.in the previous jurisprudence is com- This test expressed in Judge Anzilotti’s monly accepted to have been best dissenting opinion in the even addressed, let alone decided, in either the reasoning or the even addressed, let alone decided, that Serbia had not been a UN Member or party to the Genocide that Serbia had not been a UN Convention until 2000. https://digitalcommons.pace.edu/pilr/vol21/iss1/2 26570_pir_21-1 Sheet No. 30 Side B 04/08/2009 15:17:04 B 04/08/2009 30 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 31 Side A 04/08/2009 15:17:04 13 50 47 49 49 per- :] case be- res judi- 24-MAR-09 7:19 CASE res judicata Seq: 13 Seq: GENOCIDE Haya de la Torre Haya de la Torre note 3, at 1240. apply the doctrine of apply the doctrine unknown Statute of the Permanent Court of Inter- not —the triple identity test—have supra ) covers both the object and the both the object ) covers See , for it is clear that the ‘particular clear that the , for it is ecid´e These “traditional” elements for the These “traditional” 48 e d´ This was so because “it is the duty of the This was so because “it is the et´ , 1927 P.C.I.J. (serv. A) No. 13. at 23 (Anzolotti, J., dis- 52 res judicata (Colom. v. Peru), 1950 I.C.J. 266 (Nov. 20, 1950). RES JUDICATA IN THE ICJ’S THE ICJ’S IN JUDICATA RES Zimmerman Commentary, Following delivery of this judgment, Colombia filed a Following delivery of this judgment, le cas qui a le cas qui ´ 51 Articles 59 and 60 of the P.C.I.J.’s Statute are identical to the current Arti- Articles 59 and 60 of the P.C.I.J.’s Statute Chorozow Factory See Asylum See id. Request for Interpretation of Judgment of 20 November 1950 in Asylum For example, the Court in the For example, the , precisely because one of the three “traditional elements” one of the three “traditional , precisely because (Colom. v. Peru), 1950 I.C.J. 395, 403 (Nov. 27, 1950). 47 48 49 50 51 52 M K cata national Justice, Dec. 16, 1920, arts. 59-60, 6 L.N.T.S. 391. senting) (quoting French version of Article 59 of ICJ Statute). sona, petitum, causa petendi sona, petitum, identified by Judge Anzilotti from the Court’s Statute was ab- Anzilotti from the Court’s identified by Judge sent. ICJ, in a between the same parties at the In a prior case to a political ref- a grant of diplomatic asylum dispute following Court was asked Embassy in Lima, the ugee by the Colombian to the international law of diplo- a number of questions relating of certain conventions. matic asylum and the interpretation request for interpretation under Article 60 of the ICJ Statute. request for interpretation under gave its judgment on the re- On November 27, 1950 the Court that the question of the pos- quest for interpretation and noted was “completely left outside the sible surrender of the refugee submissions of the parties. it, The judgment in no way decided nor could it do so.” Neither Colombia’s claim nor Peru’s counterclaim requested the Neither Colombia’s claim nor Peru’s of terminating the asylum Court to decide on the actual method for the political refugee in question. the On November 20, 1950 the questions posed and, Court issued a judgment answering possible surrender of the refugee noting that the question of the not been raised by the parties, to the Peruvian authorities had did not decide this point—no surrender mention of the possible operative clause of the judg- of the refugee was made in the ment. 2009] Statute, the P.C.I.J.’s 59 and 60 of firmly on articles analysis [of elements the “three traditional enunciated \\server05\productn\P\PIR\21-1\PIR102.txt case’ ( Case cles 59 and 60 of the I.C.J.’s Statute. been accepted by the Court in its subsequent jurisprudence. the Court in its subsequent been accepted by identification of identification of grounds of the claim.grounds the Court’s these limits that It is within judgment is binding.” tween Columbia and Peru, did tween Columbia C Y 26570_pir_21-1 Sheet No. 31 Side A 04/08/2009 15:17:04 A 04/08/2009 31 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 31 Side B 04/08/2009 15:17:04 14 M K C Y res its rele- [Vol. 21:37 56 24-MAR-09 7:19 res judicata Judgment to Haya de la Torre upon the question of upon the question Seq: 14 Seq: 53 Genocide ), the situation certainly is differ- unknown res judicata III. in the 2007 causa petendi ) would arguably be identical. Yet, with regard 55 (Colom. v. Peru), 1951 I.C.J. 71, 80 (June 13, 1951). (Colom. v. Peru), 1951 I.C.J. 71, 80 (June PACE INT’L L. REV. petitum res judicata The Court therefore simply refused to apply simply refused to apply The Court therefore 54 in a situation where the triple identity test was not where the triple identity test in a situation at 402. at 83. Id. Haya de la Torre Id. As Stephan Wittich has argued: Following this judgment a further diplomatic exchange a further this judgment Following Whatever one thinks of the Court’s softening of the triple Whatever one thinks of the Court’s 53 54 55 56 to the cause of the claims ( ent. While the preliminary objections of the FRY were mainly based on issues arising in the context of the Genocide Convention (the disputed sta- tus of the FRY as a party to that Convention, the ambit of Article IX of the Convention, the non-retroactive effect of the Court’s jurisdiction under Ar- ticle IX), the FRY’s arguments in the merits phase concerning its status in relation to the Court’s Statute did not at all involve the Genocide Conven- tion but were based on different grounds. In other words, the basis of the claim brought forward in the merits phase (i.e., lack of party status) was principle [in the form of the triple identity test] were really met in the principle [in the form of the triple identity case. the object of Yugoslavia’s prelimi- To be sure, it could be argued that phase of the proceedings was the nary objections filed in the jurisdictional in the merits phase to reconsider same as that of its request to the Court that the Court declare its lack of the 1996 Judgment, this object being jurisdiction and dismiss Bosnia’s application. Argued this way, the object of the claims (the [I]t is doubtful whether the criteria for the application of the [I]t is doubtful whether the criteria for judicata took place between the parties and in December 1950 new pro- December 1950 parties and in between the took place instituted by Colombia (the ceedings were 50 the final as stated in to the questions only to reply Court not deciding to abstain from but also of the parties, submissions those submissions.” included in points not case). decision this case was to obtain the Court’s The object of refugee to Peru, was bound to deliver the on whether Colombia the asylum.thus terminating ruled on this point as The Court refugee was not of the surrender of the follows: “[t]he question Judgment of November 20th.decided by the This question is new. no There is consequently \\server05\productn\P\PIR\21-1\PIR102.txt satisfied. of its prior the Court found, independently Instead, under no obligation to surrender judgment, that Colombia was the refugee to Peru. identity test for surrender.” include matters decided by “necessary implication,” include matters decided by “necessary vance for other courts and tribunals is likely to be decidedly vance for other courts and tribunals https://digitalcommons.pace.edu/pilr/vol21/iss1/2 26570_pir_21-1 Sheet No. 31 Side B 04/08/2009 15:17:04 B 04/08/2009 31 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 32 Side A 04/08/2009 15:17:04 15 58 51 60 Judgment, res judi- 24-MAR-09 7:19 res judicata CASE Genocide Seq: 15 Seq: GENOCIDE Judgment noted “[t]wo pur- Judgment noted unknown for the Court, are also unlikely Court, are also for the ] appears from the terms of the ] appears from Genocide note 7, at art. 59. case, a split of opinion existed among case, a split of opinion existed note 1, at ¶ 116 (noting that the Court’s function, note 1, at ¶ 116 (noting that the Court’s , internationally as nationally”—namely,, internationally principle without exception.” 2007 supra supra res judicata ratione personae ratione Genocide res judicata note 41, at 604-05. RES JUDICATA IN THE ICJ’S THE ICJ’S IN JUDICATA RES The Court considered, however, that “[t]he fundamen- The Court considered, res judicata at ¶ 115. at art. 60. practice of The Court was also unmoved by the comparative and that “[t]he judgment is final and without appeal. In and that “[t]he judgment is final 57 supra 59 Id. Statute of the ICJ, Id. 2007 Judgment, Until the The Court in its 2007 The Court in its from its particular Statute, rather than from any “general rather than particular Statute, from its 58 59 60 57 totally different from those in the jurisdictional phase (i.e., no valid title of totally different from those in the jurisdictional Convention). jurisdiction arising under the Genocide M K at ¶ 119. Wittich, cata principles of law” that might be applied more broadly.might be applied of law” that principles The fac- nature as the mandatory case, as well of the tual circumstances of jurisdiction according to Article 38 of its Statute, is to “decide such disputes as are submitted according to Article 38 of its Statute, is articulates the formal finality of its to it” and that Article 60, moreover, judgments). “that litigation come to an end” and “that an issue which has come to an end” and “that an “that litigation be not argued in favour of [a] party already been adjudicated again.” the European Court of and the International Criminal Court, to which, in certain circumstances, allow jurisdictional or admissibility challenges be lodged at late stages of the proceedings; the Court noted that these to “do not support the view that there exists a general principle which would apply in the Court, whose Statute not merely contains no such provision, but declares, Article 60, the constituted a “general principle of law” which the Court could constituted a “general principle Thus, Articles 59 and 60 of the Court’s Statute provide, respec- Thus, Articles 59 and 60 of the Court has no binding force ex- tively, that “[t]he decision of the in respect of that particular cept between the parties and case,” 2009] more limited. the Court applied discussed below, As \\server05\productn\P\PIR\21-1\PIR102.txt Statute of the Court and the Charter of the United Nations.” Statute of the Court and the Charter the event of dispute as to the meaning or scope of the judgment, the event of dispute as to the meaning the request of any party.” the Court shall construe it upon tal character of [ tal character of poses, one general, the other specific, [which] underlie the prin- the other specific, [which] poses, one general, ciple of commentators regarding whether, for the Court, commentators regarding whether, to recur in other contexts where waiver, , or abuse of contexts where waiver, estoppel, to recur in other late jurisdictional be applied to a process could appropriately challenge. C Y 26570_pir_21-1 Sheet No. 32 Side A 04/08/2009 15:17:04 A 04/08/2009 32 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 32 Side B 04/08/2009 15:17:04 16 M K C Y res res is a Waste NTERNA- I is a princi- to be a http://icsid. [Vol. 21:37 24-MAR-09 7:19 see also res judicata on the basis in this case. derives from Indeed, while Indeed, PPLIED BY did) and the Court case made clear 61 A res judicata available at case, quoted above, res judicata Seq: 16 Seq: AW AS L res judicata res judicata Genocide res judicata case would merit close at- was a general principle of principle was a general case for other courts and from its Statute limits the was in fact firmly rooted in Genocide Waste Management unknown RINCIPLES OF P as a general principle rather than as one de- Genocide Genocide res judicata note 7, at art. 38(1)(c). 336 (Grotius Publications 1987); res judicata ENERAL res judicata , G supra note 35, at 1598-99. Thus, while some influential commentators some influential Thus, while res judicata PACE INT’L L. REV. RIBUNALS note 41, at 600. HENG 62 T C supra , IN 64 , B , supra e.g. OSENNE by the ICJ in the in its judgments, it did so “without examining its did so “without judgments, it in its , OURTS AND and was utilized by the Court as such under Article 38 of by the Court as such under Article and was utilized 2 R Statute of the ICJ, Wittich See C The Court’s statement in the The Court’s statement The Court’s use of 63 64 61 62 63 ple of international law, and even a general principle of law within the meaning of ple of international law, and even a general principle of law within the meaning Article 38(1)(c) of the Statute of the International Court of Justice.”). There is, of course, an important doctrinal distinction between finding that Management, Inc. v. Mexico, 41 L.L.M. 1215, 1322 (2002), Management, Inc. v. Mexico, 41 L.L.M. itself actually applying general principle of law within the purview of Article 38 of the Court’s Statute (as general principle of law within the purview of Article 38 of the Court’s Statute the ICSID Additional Facility in TIONAL judicata judicata worldbank.org/ICSID/FrontServlet?RequestType=CasesRH&actionVal=showDoc is no doubt that &docId=DC604_En&caseId=C187. (“There rived from articles 59 and 60 of its Statute. 52 Statute. 38(1)(c) of its virtue of Article adopt by \\server05\productn\P\PIR\21-1\PIR102.txt tention and might readily be adopted by other courts and tribu- tention and might readily be adopted nals. However, since the Court in the source or origin.” source or that the “fundamental character” of that the “fundamental its Statute, Shabtai Rosenne has noted that “the [of Rosenne has noted that its Statute, Shabtai apply the concept of the ICJ] does not its Statute, the use of the Court’s jurisprudence in this area by its Statute, the use of the Court’s by their own individual other courts and tribunals constituted rules should be more limited. that it is a general principle of law, but always by reference to principle of law, but always that it is a general the Statute.” the Court’s Statute is important in terms of the potential uses of is important in terms of the the Court’s Statute other courts and tribunals.the principle by The Court did not Article 38 of its principles of law” under look to any “general Statute in interpreting and applying that its application of “general principle” of law, then the rather unorthodox use of “general principle” of law, then adhered to the view that to the view that adhered tribunals that have their own rules and , which tribunals that have their own the Court frequently referred to and applied the principle of the principle to and applied frequently referred the Court precedential value of the law, Simply put, if the Court had understood Simply put, if the Court had https://digitalcommons.pace.edu/pilr/vol21/iss1/2 26570_pir_21-1 Sheet No. 32 Side B 04/08/2009 15:17:04 B 04/08/2009 32 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 33 Side A 04/08/2009 15:17:04 17 53 See is a 67 as de- Article 65 24-MAR-09 7:19 res judicata CASE res judicata Seq: 17 Seq: GENOCIDE unknown , 41 L.L.M. at 1322. of their awards differently from the ICJ. can be seen in the different ways the ICJ can be seen in the different ways North American Free Trade Agreement, U.S.-Can.-Mex., North American Free Trade Agreement, res judicata , 41 L.L.M. at 1322. that (“There is no doubt But see Waste Management , The less restrictive rules governing other tribunals The less restrictive rules governing res judicata http://icsid.worldbank.org/ICSID/StaticFiles/basicdoc_en-archive/IC- RES JUDICATA IN THE ICJ’S THE ICJ’S IN JUDICATA RES e.g. case, and, for example, the provisions in the ICSID the provisions for example, case, and, 66 , See Convention on the Settlement of Investment Disputes Between States and Convention on the Settlement of Investment Rules of Arbitration art. 28(6); International Chamber of Commerce 1998 One practical consequence of these different statutory defi- One practical consequence of these 67 65 66 M K principle of international law, and even a general principle of law within the mean- ing of Article 38(1)(c) of the Statute of the International Court of Justice.”). Waste Management art. 1136(1), Dec. 17, 1992, 32 I.L.M. 289 (1993) (“An award made by a Tribunal art. 1136(1), Dec. 17, 1992, 32 I.L.M. 289 the disputing parties and in respect of shall have no binding force except between the particular case”).is virtually identical to This provision of the NAFTA treaty Article 59 of the ICJ Statute and thus a NAFTA tribunal might find ICJ interpre- tations of this language to be of particular relevance. so, NAFTA tribunals Even have interpreted the SID_English.pdf [hereinafter Investment Disputes]. SID_English.pdf [hereinafter Investment nitions of available at 2009] the ICJ’s. different than are materially frequently There are 59, 60, of Articles the provisions differences between important in the prominently which all featured the ICJ Statute, and 61 of Genocide \\server05\productn\P\PIR\21-1\PIR102.txt opens the door for those tribunals to apply opens the door for those tribunals Statute and, for example, the ICSID Convention implement the Statute and, for example, the ICSID finality of decisions. to In the ICJ context, a judgment is subject Convention dealing with the final and binding nature of an IC- binding nature the final and dealing with Convention SID arbitral award. Article 53 of the Con- In the ICSID context, binding on the that “[t]he award shall be vention provides or to any other not be subject to any appeal parties and shall provided for in this Convention.” remedy except those Nationals of Other States, art. 53, Oct. 14, 1966, 17 U.S.T. 1291, 575 U.N.T.S. 159, Nationals of Other States, art. 53, Oct. 14, Trade Law, UNCITRALUnited Nations Commission on International Arbitration Rules art. 32(2). 59 of the ICJ Statute, which provides that a decision “has no which provides that a 59 of the ICJ Statute, in respect of that between the parties and binding force except Convention is stricter on its face than ICSID particular case,” Article 53. the triple identity The ICJ Statute clearly invokes of a judgment to limits the binding force test as it specifically does not. case,” while the ICSID Convention “that particular do not contain this limitation The ICC Rules of Arbitration also Award shall be binding on the and provide simply that “[e]very parties,” while the 1976 UNCITRAL Arbitration Rules also be final and binding on the specify only that the award “shall parties.” rived from their own , rather than from the ICJ’s. rived from their own statutes, C Y 26570_pir_21-1 Sheet No. 33 Side A 04/08/2009 15:17:04 A 04/08/2009 33 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 33 Side B 04/08/2009 15:17:04 18 M K C Y 68 res may [Vol. 21:37 24-MAR-09 7:19 case as a pos- res judicata Zimmerman Commen- in Seq: 18 Seq: , Genocide Article 61 . of issues of The combination unknown 69 note 65, at arts. 53, 64, Mar. 18, 1965, 17 case as a precedent for other courts case as a precedent case, and which make its holding on case, and which make its holding supra res judicata PACE INT’L L. REV. Genocide Genocide when it is rendered and will remain so even if a will remain is rendered and when it note 3, at 1305. noteworthy in the ICJ context, is unlikely to recur in noteworthy in the ICJ context, Andreas Zimmerman & Robin Geiss, Investment Disputes, Just as the specificities of the ICJ Statute may limit the of the ICJ Statute may Just as the specificities supra 68 69 tary, U.S.T. 1270, 575 U.N.T.S. 159. judicata usefulness of the usefulness of the 54 res judicata rem- refers to the various Article 53 ICSID, by contrast, For the referral to the revision, annulment, and edies of interpretation, or overturn the could potentially undermine ICJ, each of which of an award. binding nature \\server05\productn\P\PIR\21-1\PIR102.txt successful application for revision under Article 61 is made. Article 61 for revision under application successful separate considered a proceedings are because revision This is 59. bounds of Article outside the case” and thus “particular other contexts. While the Court’s holding on State succession, international armed conflict, and parallel pro- international armed conflict, State succession, with under the terms of its ceedings that the Court struggled Statute in the and tribunals, the particular factual and procedural circum- the particular factual and procedural and tribunals, obstacles for case are also likely to pose large stances of the tribunals looking to the other courts and sible precedent for sible precedent be important, it is unlikely to have the “wider impact” some be important, it is unlikely to have predicted. https://digitalcommons.pace.edu/pilr/vol21/iss1/2 26570_pir_21-1 Sheet No. 33 Side B 04/08/2009 15:17:04 B 04/08/2009 33 Side Sheet No. 26570_pir_21-1