International Court of Justice to Proceed in Another Genocide Case

Yesterday the International Court of Justice voted, by ten votes to seven, to dismiss a preliminary objection of Serbia in a case filed by Croatia based upon provisions of the Genocide Convention (http://www.icj-cij.org/docket/files/118/14891.pdf?PHPSESSID=f8aeb621955464df41e48adfe68d4702) Croatia launched the case in mid-1999, although it concerns events that took place in 1991. Croatia’s suit seemed prompted by Genocide Convention-based cases filed against NATO countries by Serbia only weeks earlier. But in 2004, the Court dismissed the Serbian applications against NATO on the grounds that Serbia did not have ‘access to the Court’ in 1999. Serbia invoked the 2004 rulings, saying that if it couldn’t sue in 1999 then it couldn’t be sued either. A bare majority of the Court seems to have reconsidered that 2004 decision, this time ruling that Serbia was in fact properly before the Court in 1999.
There is another piece of this: the 2007 judgment of the Court in Bosnia v. Serbia. There the Court also dismissed Serbia’s objection based upon the 2004 ruling. The Court said the 2004 ruling, in Serbia v. NATO, didn’t apply to Bosnia v. Serbia, because a 1996 decision had already decided that Serbia was properly before the Court when Serbia was sued by Bosnia in 1993. Because the 1996 ruling had already settled the question, the Court could not return upon its decision in the 2007 judgment, even if the 2007 judgment seemed to contradict the 2004 judgment.
Confused? Imagine trying to explain this in Belgrade. It seems that whenever Serbia gets sued, the Court can hear the case. But when Serbia sues, the case is found to be inadmissible.
For a student of the Genocide Convention, this means we will have another Court judgment on the merits concerning the interpretation and application of the Convention. Croatia’s application would seem to stand on weak ground from a substantial point of view. It concerns the Serbia-Croatia war in 1991 which, while brutal enough, hardly compares with the Serbia-Bosnia war of 1992-1995. And in that latter conflict, the Court found that genocide had not been committed, with the exception of the Srebrenica massacre of mid-July 1995. The Court based itself largely upon the findings of the International Criminal Tribunal for the former Yugoslavia. If it does the same, it will quickly acknowledge that there have been no findings of genocide by the Yugoslavia Tribunal with respect to the 1991 war between Serbia and Croatia.
There is an oblique reference to the merits at the end of yesterday’s ruling. In paragraph 141, the Court writes:

As already noted above, since proceedings were instituted in this case, the Court has given judgment in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), (Judgment of 26 February 2007); and Serbia has relied
on that decision also in the context of the issue now under examination. In that case the Court found that there had been a “deliberate destruction of the historical, cultural and religious heritage of the . . . group [protected by the Convention]” (Judgment of 26 February 2007, para. 344). However, the Court found that “[a]lthough such destruction may be highly significant inasmuch as it is directed to the elimination of all traces of the cultural or religious presence of a group, and contrary to other legal norms, it does not fall within the categories of acts of genocide set out in Article II of the Convention” (ibid.). As has already been indicated (paragraphs 52-56 above), this decision does not have the force of res judicata in the present proceedings, but the Court sees no reason to depart from its earlier finding on the general question of interpretation of the Convention in this respect. The Court will have to decide how these findings of law are to be applied, and what may be their effect in the present case.

The 2007 judgment in Bosnia v. Serbia confirmed that the Court would apply a relatively narrow and strict construction of the definition of the crime of genocide. These words in the recent decision on admissibility suggest that it is not likely to reconsider the approach.