Izvorni znanstveni članak
The Crime of Genocide before International Courts and Tribunals
Vladimir-Đuro Degan
; Pravni fakultet Sveučilišta u Rijeci, Rijeka, Hrvatska
Sažetak
The Judgment rendered by the International Court of Justice (ICJ) on 26 February 2007 relating to the violations of the 1948 Genocide Convention (Bosnia-Herzegovina/Serbia) incited fervent criticism both in Bosnia-Herzegovina and Croatia. The misunderstandings were caused by the general ignorance of the specificities of the trials before the ICJ in comparison with the criminal prosecution of individuals by the International Criminal Tribunal for the former Yugoslavia (ICTY).
The ICJ had no choice but to confine its jurisdiction to Article IX of the Genocide Convention only, and to require from the applicant proof of the special intention (dolus specialis) in the commission of wrongful acts by the respondent, as provided in its Article II. Therefore, “ethnic cleansing” is only a form of genocide within the meaning of the Convention if it falls within one of the categories of acts prohibited by the said provision.
The author accepts the finding by the Court “that it can only form its opinion on the basis of the information which has been brought to its notice at the time of rendering its decision, and which emerges from the pleadings and documents in the case file, and the arguments of the Parties made during the oral exchange” (para.395).
In this light, the emphatic conclusion in paragraph (2) of the operative part of the Judgment that “Serbia has not committed genocide through its organs or persons whose acts engage its responsibility under customary law...” does not seem to be the most appropriate one. It is better to conclude that on the basis of the available documents the Court did not establish the commission by Serbia itself of the crime of genocide through it organs and persons. The same relates to the findings under (3) and (4) that Serbia has not conspired to commit genocide, nor incited its commission, and has not been complicit in it.
The weakest point of this entire Judgment, in the view of this author, is the decision of the Court under (9) that, as regards the breach by Serbia of its obligation to prevent genocide in Srebrenica in July 1995, the Court's own findings in paragraph (5) constitute appropriate satisfaction, “and that the case is not the one in which an order for the payment of financial compensation... would be appropriate”.
The Court established the causal nexus between the genocide in Srebrenica and the responsibility of Serbia only at the time when that massacre actually happened (para. 462). In this respect, it relied on a precedent from the Corfu Channel Judgment of 1949. However, the events of these two cases are profoundly different.
During the break-up of Yugoslavia, the regime in Belgrade unlawfully appropriated most of the arms, ammunition and equipment of the Yugoslav People's Army, which should have been apportioned among all its successor states. Serbia equipped the Militia of the Serbian Kraina in Croatia and the Army of the Republika Srpska in Bosnia-Herzegovina with these arms. Bosnian Muslims fit for military service were in fact murdered in Srebrenica with the arms that should have been their own. In these circumstances, there can be no alternative but for Serbia to pay financial compensation in appropriate shares to the victims of the crime and to their heirs. The satisfaction given to the victims by the Court in its Judgments is a mockery of justice.
Ključne riječi
genocide; dolus specialis; aggression; ethnic cleansing; criminal responsibility of individuals; state responsibility; war crimes; crimes against humanity
Hrčak ID:
20399
URI
Datum izdavanja:
18.1.2008.
Posjeta: 3.928 *