Original scientific paper
https://doi.org/10.31141/zrpfs.2016.53.120.329
Crime of Genocide before the Hague International Court
Vladimir-Đuro Degan
; Sveučilište u Rijeci
Abstract
The I.C.J. has dealt so far with three cases in which its jurisdiction was claimed to be based on Article IX of the 1948 Genocide Convention. In all these cases was involved the Federal Republic of Yugoslavia (FRY). It appeared as defendant in cases on applications of Bosnia and Herzegovina and Croatia. Both of them were time consuming and costly for applicants. The case on application of Bosnia-Herzegovina lasted between 20 March 1993 and 26 Febru-ary 2007 when the final Judgment on the merits was delivered. That in which Croatia was applicant lasted between 2 July 1999 and issuing of the Judgment on merits on 26 February 2015. The FRY submitted its application against NATO members on 29 April 1999 during the bombardment of its territory, and the Court issued the Judgment refusing its jurisdiction to entertain this series of cases on 15 December 2004.
The result of all these litigations was the ascertainment of the crime of genocide according to the 1948 Convention only in Srebrenica in Bosnia-Herzegovina. In no case the victims of this crime or their heirs got any pecuniary or other satisfaction.
In this paper are discussed three important issues.
(a) The first issue is referred to the identity of the FRY which during these proceedings changed its appellation and legal position. As a union of States it ended by the proclamation of Montenegro as an independent State on 3 June 2006. Since then Serbia assumed the responsibilities of the former union.
The Judgment of the Court of 2004 against the NATO members was in its result and motivation in sharp contradiction with all other rulings of the Court on the same facts. The reasons for the confusing situation in this respect lay in poor functioning of the Legal Adviser of the UN, in contradictory decisions by the Security Council and the General Assembly, but most of all in shifting of legal position of the FRY itself. In a parliamentary Declaration of 27 April 1992 it claimed to keep identity and continuity of the SFRY as the predecessor State on a reduced territory. However, it was admitted into the UN Membership on 1st November 2000 as a new State. Since then it took its Declaration of 1992 as an act of its independence that what is in contradiction with its own text. On this basis it refused any responsibility for international crimes committed before 27 April 1992. The Court itself was unable to find uniform and reasonable answers in all aspects of this confusing situation.
(b) However unlike the above decisions, the Court was consistent in all its rulings by which it restricted its own jurisdiction to Article IX of the 1948 Genocide Convention. Hence it refused to deal with allegations of applicants concerning commission of aggression, of crimes against humanity and war crimes, including acts of ethnic cleansing which do not fall within Article II of the Convention.
Bosnia-Herzegovina, and latter on Croatia, did not take into account that the I.C.J. is master of its own jurisdiction and that all its decisions on this subject matter are res judicata. They probably believed that the problem was of political nature and that they will be able to persuade the Court to extend its jurisdiction in order to protect the victims of conflicts. This did not happen.
(c) After the Court in its Judgment on merits of 2007 on the application of Bosnia-Herzegovina has adopted very restrictive position concerning the proof of genocidal intention as dolus specialis of the crimes of genocide, including here acts of ethnic cleansing, Croatia as the applicant could reconsider its own possibilities in prolongation of these proceedings. It continued the suit and the final result was that the Court in its Judgment of 2015 rejected all Croatia's claims together with demands from the Serbian counter-claim. It would be better to grant all the money spent in this costly case directly to victims of international crimes, be they the acts of genocide or not.
Keywords
Actus reus; mens rea; dolus specialis; compétence de la compétence; precedents
Hrčak ID:
157686
URI
Publication date:
5.5.2016.
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