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| III. | The International Court of Justice |
| 2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
| 2.5. | Jurisdiction on the Basis of Treaties |
| 2.5.3. | Specific Treaties |
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Application of the Convention on the Prevention
and Punishment of the Crime of Genocid
(Bosnia and Herzegovina v. Yugoslavia),
Preliminary Objections, Judgment of 11 July 1996,
I.C.J. Reports 1996, p. 595
[pp. 615-617] 30. To found its jurisdiction, the Court must,
however, still re that the dispute in question does indeed fall within the
provisions of Article IX of the Genocide Convention.
Yugoslavia disputes this. It contests the existence in this case of an "international
dispute" within the meaning of the Convention, basing itself on two
propositions: first, that the conflict occurring in certain parts of the
Applicant's territory was of a domestic nature, Yugoslavia was not party to it
and did not exercise jurisdiction over that territory at the time in question;
and second, that State responsibility, as referred to in the requests of Bosnia
and Herzegovina, was excluded from the scope of application of Article IX.
31. The Court will begin with a consideration of Yugoslavia's first
proposition.
In doing so, it will start by recalling the terms of Article I of the Genocide Convention, worded as follows:
"The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish."
The Court sees nothing in this provision which would make the applicability
of the Convention subject to the condition that the acts contemplated by it
should have been committed within the framework of a particular type of
conflict. The contracting parties expressly state therein their willingness to
consider genocide as "a crime under international law", which they
must prevent and punish independently of the context "of peace" or "of
war" in which it takes place. In the view of the Court, this means that the
Convention is applicable, without reference to the circumstances linked to the
domestic or international nature of the conflict, provided the acts to which it
refers in Articles II and III have been perpetrated. In other words,
irrespective of the nature of the conflict forming the background to such acts,
the obligations of prevention and punishment which are incumbent upon the States
parties to the Convention remain identical.
As regards the question whether Yugoslavia took part - directly or
indirectly - in the conflict at issue, the Court would merely note that the
Parties have radically differing viewpoints in this respect and that it cannot,
at this stage in the proceedings, settle this question, which clearly belongs to
the merits.
Lastly, as to the territorial problems linked to the application of the
Convention, the Court would point out that the only provision relevant to this,
Article VI, merely provides for persons accused of one of the acts prohibited by
the Convention to "be tried by a competent tribunal of the State in the
territory of which the act was committed ...". It would also recall its
understanding of the object and purpose of the Convention, as set out in its
Opinion of 28 May 1951, cited above:
"The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as 'a crime under international law' involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96 (1) of the General Assembly, December 11th 1946). The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the co-operation required 'in order to liberate mankind from such an odious scourge' (Preamble to the Convention)." (I.C.J. Reports 1951, p. 23.)
It follows that the rights and obligations enshrined by the Convention are rights and obligations erga omnes. The Court notes that the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention.
[pp. 619-620] 38. The Court has likewise recalled above (see paragraph 7) that, by a communication dated 6 August 1993, the Agent of Bosnia and Herzegovina indicated that his Government intended likewise to submit, as an additional basis of jurisdiction, the Treaty between the Allied and Associated Powers (the United States of America, the British Empire, France, Italy and Japan) and the Kingdom of the Serbs, Croats and Slovenes, that was signed at Saint-Germain-en-Laye on 10 September 1919 and entered into force on 16 July 1920. Chapter I of that Treaty concerns the protection of minorities and includes an Article 11 according to which:
"The Serb-Croat-Slovene State agrees that any Member of the Council of
the League of Nations shall have the right to bring to the attention of the
Council any infraction, or any danger of infraction, of any of these
obligations, and that the Council may thereupon take such action and give such
directions as it may deem proper and effective in the circumstances.
The Serb-Croat-Slovene State further agrees that any difference of opinion
as to questions of law or fact arising out of these Articles between the
Serb-Croat-Slovene State and any one of the Principal Allied and Associated
Powers or any other Power, a member of the Council of the League of Nations,
shall be held to be a dispute of an international character under Article 14 of
the Covenant of the League of Nations. The Serb-Croat-Slovene State hereby
consents that any such dispute shall, if the other party thereto demands, be
referred to the Permanent Court of International Justice. The decision of the
Permanent Court shall be final and shall have the same force and effect as an
award under Article 13 of the Covenant."
Chapter 11, which concerns succession in respect of treaties, trade, the treatment of foreign vessels and freedom of transit, includes an Article 16 which provides, inter alia, that
"All rights and privileges accorded by the foregoing Articles to the Allied and Associated Powers shall be accorded equally to all States Members of the League of Nations."
Bosnia and Herzegovina substantially contends that, by the effect of those
two provisions, any Member of the League of Nations could refer to the Permanent
Court a dispute to which Article 11 applied; that the General Assembly of the
United Nations has taken the place of the Council of the League of Nations in
respect of such matters; and that Bosnia and Herzegovina, as a Member of the
United Nations, may now, by operation of Article 37 of the Statute, seise the
present Court of its dispute with Yugoslavia, on the basis of the 1919 Treaty.
The Court considers that, in so far as Yugoslavia is now bound by the 1919
Treaty as successor to the Kingdom of the Serbs, Croats and Slovenes, its
obligations under that Treaty would be limited to its present territory; it
notes that Bosnia and Herzegovina has put forward no claim in its Application
concerning the treatment of minorities in Yugoslavia. In these circumstances,
the Court is unable to uphold the 1919 Treaty as a basis on which its
jurisdiction in this case could be founded. On this point as well, the Court
thus confirms the provisional conclusion reached in its Order of 13 September
1993 (I.C.J. Reports 1993, pp. 339-340, paras. 29-31); besides,
no fundamentally new argument has been presented on this matter either, since
that time.
[pp. 625-626 Decl. Oda] 2. Bosnia and Herzegovina, which relies upon Article IX of the Genocide Convention as a basis for the Court's jurisdiction, has requested the Court to adjudge and declare principally that Yugoslavia (Serbia and Montenegro (hereinafter called "Yugoslavia")) has breached its legal obligations towards Bosnia and Herzegovina under the Genocide Convention, that Yugoslavia must immediately desist from its breaches of these obligations, and that Yugoslavia has to make reparation for the damages to persons and property and to the Bosnian economy and environment that have been caused by its violations of international law.
In my view, however, Bosnia and Herzegovina, in its Application, has not
given any indication of opposing views regarding the application or
interpretation of the Genocide Convention which may have existed at the time
of filing of the Application, which alone can enable the Court to find that
there is a dispute with Yugoslavia under that Convention.
3. If any dispute were to be unilaterally submitted to the Court by one of
the Contracting Parties to a treaty pursuant to the compromissory clause of that
treaty, this would mean in essence that the dispute had arisen because of (i)the
alleged failure of another Contracting Party to fulfil the
obligations imposed by that treaty - a failure for which it is
responsible - and (ii) the infringement of the rights bestowed upon the
former State by that treaty due to that failure. The failure of the other
State is itself a violation of the treaty but such a violation alone cannot be
interpreted as constituting a dispute between the applicant State and the
respondent State relating to that treaty unless it can be shown to have
infringed such rights of the former State as are protected thereby.
[pp. 628-629 Decl. Oda] 6. In order to seise the Court of
the present case, Bosnia and Herzegovina would certainly have had to show
that applying the Genocide Convention to the situation in the area of the
former Yugoslavia, Yugoslavia could indeed have been responsible for the failure
of the fulfilment of the Convention in relation to Bosnia and
Herzegovina. But, more particularly, Bosnia and Herzegovina would have to show
that Yugoslavia has breached the rights of Bosnia and Herzegovina as a
Contracting Party (which by definition is a State) that should have been
protected under the Convention. This, however, has not been shown in the
Application and in fact the Convention is not inteirded to protect the rights of
Bosnia and Herzegovina as a State. Yugoslavia might have been responsible
for certain instances of genocide or genocidal acts committed by its
public officials or surrogates in the territory of Bosnia and
Herzegovina, but this fact alone does not mean that there is a "dispute"
between the States relating to the responsibility of a State, as
Yugoslavia did not violate the rights bestowed upon Bosnia and Herzegovina by
the Convention. I would like to repeat and to emphasize that what should be
protected by the Convention is not the particular rights of any
individual State (Bosnia and Herzegovina in this case) but the status of
human beings with human rights and the universal interest of the
individual in general.
7. What Bosnia and Herzegovina did in its Application was to point to
certain facts tantamount to genocide or genocidal acts which had allegedly been
committed within its territory by the Government of Yugoslavia or by its agents
or surrogates, and to submit claims alleged to have arisen out of these acts.
This cannot be taken to indicate the existence of an inter-State dispute
relating to the responsibility of a State which could have been made a basis for
the Court's jurisdiction.
Bosnia and Herzegovina certainly might have claimed "reparations for any damages to persons and property as well as to the Bosnian economy and environment caused by the ... violations of international law" (Application, para. 135 (r)) - not under the Genocide Convention but only as a general issue of international law. (Bosnia and Herzegovina states that the claims to reparation for damages have been caused by the violations of international law, not by the Genocide Convention.) If this is the case, whether the present Court has jurisdiction over such claims under the Genocide Convention is quite a different problem and is irrelevant to the present case.
8. After all, Bosnia and Herzegovina does not appear to allege that it has a dispute with Yugoslavia relating to the interpretation or application of the Genocide Convention, although only such a dispute - and not the commission of genocide or genocidal acts which certainly are categorized as a crime under international law - can constitute a basis of the Court's jurisdiction under the Convention.
