The International Court of Justice (ICJ) is to deliver its judgment in the case “APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (BOSNIA AND HERZEGOVINA v. SERBIA AND MONTENEGRO)” on Monday 26 February 2007 at 10 a.m.
Why is this case of importance?
On the one hand, the case has been delayed by a variety of judicial and factual measures, postponing the public hearings on the merits until 27 February 2006. Therefore, the final judgment is eagerly awaited. Bosnia and Herzegovina first brought a case against Yugoslavia (Serbia and Montenegro as the successor State) back in March 1993. As a consequence, the ICJ decided on 16 April 1993 upon the following provisional measures:
Namely that “[t]he Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) should immediately (…) take all measures within its power to prevent commission of the crime of genocide” and in particular “ensure that any military, paramilitary or irregular armed units (…) as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any acts of genocide”. [Source]
This was followed by a second request for the indication of provisional measures, an order of the Court on provisional measures, (hearings on) preliminary objections, a judgement on preliminary objections, the filing of pleadings and finally the public hearings on the merits. Overall, this process required 13 years. During that time, not only has the war in Bosnia-Herzegovina (1992-1995) ended, but moreover several of those who bore the political and military responsibility for actions in the conflict itself, have been convicted of acts of genocide and/or crimes against humanity.
But the main reason for the significance of the case is its legal contents. For the first time since the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide (adopted December 1948; in force January 1951; Genocide Convention) and since the instalment of the ICJ (1946), one State is accusing another State of committing the act of genocide. The difficult question in this regard is whether or not an entire State can at all be held responsible for the crime of genocide as stated in the Genocide Convention. Although e.g. the International Crimes Tribunal for the Former Yugoslavia (ICTY) has already found individuals of the Bosnian Serb Army to be responsible for committing the act of genocide and/or being guilty of crimes against humanity (due to the Srebrenica massacre), the difficulty remains to prove the existence of an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group” (Art. 2 Genocide Convention) with an entire political leadership. In fact, whether or not the alleged crimes have been committed/taken place, seems to be beyond doubt. What will be rather difficult to prove, is the existence of a genocidal intent with the Milosevic regime.
Irrespective of the contents of the final ICJ-judgement, it will be of great importance for the overall development of the significance of human rights in the public international legal order, the rules on state responsibility and the ability of the international legal order to provide for actual consequences for violations of fundamental human rights.