Summaries of the Decisions
Application of the Convention on the Prevention and Punishment
of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))
On 20 March 1993 Bosnia-Herzegovina initiated proceedings against Yugoslavia
(Serbia and Montenegro) for violating the Convention on the Prevention and
Punishment of the Crime of Genocide, the four Geneva Conventions of 1949, their
Additional Protocol I of 1977, the customary international laws of war including
the Hague Regulations on Land Warfare of 1907 and other fundamental principles
of humanitarian law. The Court was also requested by Bosnia-Herzegovina to
declare that it had the right to collective self-defence according to Article 51
of the UN Charter. In a request filed immediately after the application,
Bosnia-Herzegovina asked the Court to indicate Provisional Measures according to
Article 41 of the Statute of the Court. The Court was asked to order that
Yugoslavia (Serbia and Montenegro) immediately cease and desist from all acts of
genocide and to state that Bosnia-Herzegovina had the right to self-defence of
Article 51 of the UN Charter.
Under Article 35 (1) of its Statute, the Court would have to decide whether
Yugoslavia was a party to the UN Charter and, thus, to the Statute. Because of
the unclear status of Yugoslavia in the United Nations, the Court turned instead
to Article 35 (2), which opens the Court to non-members of the United Nations.
Further the Court found that Art. IX of the Genocide Convention prima facie
gave jurisdiction, even if Yugoslavia was not a member of the United Nations at
the time. The Court found that both parties were bound by the Genocide
Convention. Yugoslavia (Serbia and Montenegro), on 27 April 1992, proclaimed its
succession to the obligations of the Socialist Federal Republic of Yugoslavia
arising out of Genocide Convention. On 29 December 1992, Bosnia-Herzegovina
transmitted to the Secretary General of the United Nations a Notice of
succession effective 6 March 1992, the date of the Declaration of Independance
of Bosnia-Herzegovina. As Article IX of the Genocide Convention gave
jurisdiction only for disputes relating to the interpretation, application or
fulfilment of the Genocide Convention, the claim concerning the right of
self-defence was not covered by this provision.
Bosnia-Herzegovina argued that the Court's jurisdiction on this matter arose
from a letter by the Presidents of Serbia and Montenegro to the President of the
Arbitration Commission of the International Conference for Peace in Yugoslavia.
In this communication the solution of disputes which arose from the succession
of the different States to the former Socialist Federal Republic of Yugoslavia
was adressed. The two Presidents considered that all legal disputes which could
not be solved by agreement between the Federal Republic of Yugoslavia and the
former Yugoslav Republics should be submitted to the International Court of
Justice. The Court, in its decision on interim measures, found that the
declaration was not explicit enough to constitute a prima facie basis of
jurisdiction.
On issues relating to the Genocide Convention, the Court dismissed the
objection of Yugoslavia (Serbia and Montenegro) that the alleged violations
could not be imputed to it. The Court relied on Article I of the Convention,
which requires that all Parties to the Convention prevent and punish genocide,
irrespective of their own responsibility for the crimes. The Court ordered,
unanimously, that the Government of the Federal Republic of Yugoslavia (Serbia
and Montenegro) immediately take all measures within its power to prevent
commission of the crime of genocide and take no action which might aggravate the
situation. The Government was ordered, by 13 votes to 1, to ensure that "any
military, paramilitary or irregular armed units which may be directed or
supported by it, as well as any organizations and persons which may be subject
to its control, direction or influence, do not commit any acts of genocide, of
conspiracy to commit genocide, of direct and public incitement to commit
genocide, or of complicity in genocide, whether directed against the Muslim
population of Bosnia-Herzegovina or against any other national, ethnical, racial
or religious group".
Judge Tarassov appended a declaration expressing his opinion that part of
the Court's order might be interpreted as finding that Yugoslavia (Serbia and
Montenegro) was indeed involved in acts of genocide. He considered that these
parts of the order came close to a pre-judgement of the merits and therefore
voted against them.
In a second Order of 13 September 1993, the Court refused to order farther
reaching injunctions requested by Bosnia-Herzegovina. The request for an
injunction by the Federal Republic of Yugoslavia requiring Bosnia-Herzegovina to
take all measures within its power to prevent commission of the crime of
genocide against Serbs in Bosnia-Herzegovina was also denied by the Court. The
Court underlined that it had prima facie jurisdiction only in accordance
with the Genocide Convention and consequently was precluded from dealing with
broader claims. The Court also reaffirmed its Order of 8 April 1993.
Vice-President Oda joined a Declaration to the Order; Judges Shahabuddeen,
Weeramantry, Ajibola and Judge ad-hoc Lauterpacht appended Separate Opinions;
Judge Tarassov and Judge ad-hoc Kreca dissented.