The Bosnian Genocide Case

Chapter Twelve

State Identity and Genocide: The Bosnian Genocide Case

Dominic McGoldrick*

i. Introduction

On 26 February 2007, after fourteen years, the International Court of Justice delivered its decision on the merits in the Bosnian Genocide Case.1 It was its first judgment on the merits in a case in which allegations of genocide had been made by one State against another. Bosnia sought, ‘to establish the responsibilities of a State which, through its leadership, through its organs, committed the most brutal violations of one of the most sacred instruments of international law’.2 The progress of the case was marked by extensive factual and evidential disputes, the most extensive written pleadings in the court’s history, procedural wrangling, applications for interim measures and counter-claims.3 At the heart of the case

* Professor of Public International Law, University of Liverpool. 1 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ General List No. 91, Judgment of 26 February 2007: http://www.icj-cij.org; 46 (2007) ILM 188. Hereinafter the main judgment is referred to as ‘Judgment’, while the Separate and Dissenting Opinions, and the Declarations are referred to as ‘note 1’. On this case, see Sivakumaran, Case Note, 56 (2007) ICLQ 695; and the commentaries in 28 (2008) Leiden Journal of International Law 63 et seq. 2 Cited in Judgment, paragraph 155. See Milanovic, ‘State Responsibility for Genocide’, 17 (2006) EJIL 553 and also ‘Follow-Up’, ibid, p. 669. 3 See paragraphs 1 to 66 of the Judgment. The counterclaims were withdrawn. The Court had a mass of factual information presented to it. The pleadings and transcripts are published on the Court’s website. The hearings lasted for two and a half months, witnesses were examined and cross-examined, and the Parties each submitted thousands of pages of documentary evi- dence (some of which had portions redacted). The public hearings on the merits in the case concluded in May 2006. See Riddell, ‘Report on the Oral Proceedings in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro): Selected Procedural Aspects’, 20 (2007) Leiden Journal of International

K.H. Kaikobad & M. Bohlander (eds.), International Law and Power: Perspectives on Legal Order and Justice. Essays in Honour of Colin Warbrick, pp. 255–304. © 2009 Koninklijke Brill NV. Printed in the Netherlands. 256 Chapter Twelve – Dominic McGoldrick were fundamental issues of State identity, the consensual nature of jurisdiction and the interpretation of the Convention on the Prevention and Punishment of the Crime of Genocide (1948).4 This article focuses on these central issues. Part 2 outlines the history of the case and addresses the issue of State identity. Part 3 examines the Court’s interpretation of the Genocide Convention. Part 4 deals specifically with the massacre at Srebrenica. Parts 5–6 deal respectively with the responsibility for breach of the obligations to prevent and punish genocide. Parts 7–8 deal briefly with responsibility for breach of the Court’s orders indicating provisional measures and the question of reparation. Finally, Part 9 seeks to identify the likely legacy of the Judgment.

ii. State Identity

1. The History of the Case The 2007 Judgement forms part of the long and complicated legal and political consequences of the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY).5 In May 1992, Bosnia and Herzegovina, Croatia and Slovenia were admitted as Members to the United Nations, as was the Former Yugoslav Republic of Macedonia on 8 April 1993. The Federal Republic of Yugoslavia (FRY) (Serbia and Macedonia) claimed to be a continuation of the SFRY but this claim was not generally accepted.6 In Resolution 777 (1992) the

Law 405. In her Separate Opinion, Judge Higgins argued that the FRY/ Serbia’s approach to the issues was such that the Court should have discontinued the case from its list so as to protect the integrity of the judicial process. 4 78 UNTS 277 (1951). 140 State parties as at 18 July 2007. See Robinson, The Genocide Convention: A Commentary, New York, 1960; Whitaker, ‘Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide’, UN Doc. E/CN. 4/Sub. 2/1985/6 (2 July 1985); Shaw, ‘Genocide and International Law’, in Dinstein (ed.) International Law At a Time of Perplexity, Dordrecht, 1989, p. 797; Schabas, Genocide in International Law: The Crime of Crimes, Cambridge, 2000; Kress, ‘The Crime of Genocide Under International Law’, 6 (2004) International Criminal Law Review 461; Kalere ‘Genocide in the African Great Lakes States’, 5 (2005) International Criminal Law Review 463; and Shelton (ed.), Encyclopaedia of Genocide and Crimes Against Humanity, Detroit, MI., 2005. Dimitrijevic and Milanovic submit that genocide is not the crime of crimes and labelling it as such trivialises crimes against humanity in public discourse: see ‘The Strange Story of the Bosnian Genocide Case’, 21 (2008) Leiden Journal of International Law 65,atp.93. 5 See McGoldrick, ‘The Tale of Yugoslavia: Lessons for Accommodating National Identity in National and International Law’, in Tierney (ed.), Accommodating National Identity, The Hague, 2000, pp. 13–64; and Rich, ‘Recognition of States: The Collapse of Yugoslavia and the Soviet Union’, 4 (1993) EJIL 36. 6 See Scharf, ‘Musical Chairs: The Dissolution of States and Membership in the United Nations’, 28 (1995) Cornell International Law Journal 29.