Max Planck Institute for Comparative Public Law and International Law Logo Max Planck Institute for Comparative Public Law and International Law

You are here: Publications Archive World Court Digest

World Court Digest

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.