|
This interactive website encourages its visitors to play the role of a judge at the International Court of Justice (ICJ). The case brought by Bosnia in 1993 charges genocide and seeks damages from Serbia and Montenegro, the former Yugoslavia. You can explore the facts, research the law, and consider opposing arguments that support one side or the other. You can earn a perfect score of 100 by identifying all the best facts and arguments that support each side.
After receving your score, you will be asked for the different issues presented to decide in favor of either Bosnia or Yugoslavia and to write an answer that explains your reasoning. You may then compare your reasoning with the actual opinion of the ICJ on that issue before writing a personal conclusion reflecting on reasons you agree or disagree with the court's judgment.
Alternately, you may proceed directly to learn the court's decision without first reviewing all the background facts and legal authority and without any role playing advocacy. At any time you are ready to learn the outcome, simply choose from the main menu below a judgment for either Bosnia or Yugoslavia, and you will be presented with the ICJ's actual decisions. Click here to obtain more instructions, if needed.
Professor Howard Tolley, Jr., University of Cincinnati Department of Political Science, College of Arts and Sciences Urban Morgan Institute for Human Rights, College of Law
A. Role Playing Option
B. Judgment Option
The Sarajevo spark that ignited World War I also energized international lawyers to develop improved standards and institutions for conflict resolution. The Yugoslav Republic created after the first world war fragmented in a bloody 1990s conflict which severely tested that twentieth century effort to promote the rule of law. The bloody carnage triggered memories of Nazi genocide as well as predictions of World War III. Several republics of the former Yugoslavia entered the United Nations as newly indpendent states in 1992 while fighting continued between three ethnic groups over contested territory in Bosnia-Herzegovena.
The United Nations Security Council ordered an arms embargo against both the new Republic of Bosnia-Herzegovina and the remnants of Yugoslavia--Serbia and Montenegro. International efforts to mediate between Bosnia's Muslims, Croats, and Serbs failed to slow the massive killing and refugee exodus. The minority Serbs controlled over seventy per cent of Bosnia. U.N. peacekeepers in Bosnia unsuccessfully attempted to provide "safe havens" for Muslim refugees, but mass killing continued.
In March 1993 Bosnia's predominantly Muslim government charged Yugoslavia with genocide and asked the International Court of Justice (ICJ) to recognize the state's sovereign right to obtain weapons in self defense. In addition, the U.N. Security Council created an ad hoc war crimes tribunal that subsequently indicted over fifty Serbs and a few Bosnian Muslims and Croats for war crimes. NATO troops ultimately enforced a ceasefire after the Dayton peace accord of December 1995.
During a tenuous peace, the Bosnian government pursued its case against Yugoslavia in the ICJ and demanded reparations for genocidal crimes dating to April 1992.
Prior to the Nazi holocaust, no treaty made genocide an international crime. Despite that legal void, the Nuremberg tribunal convicted German leaders for genocide by reasoning that their crimes against humanity violated customary international law.
In 1948 the newly established United Nations promptly adopted The Convention on the Prevention and Punishment of the Crime of Genocide. The 112 parties to the convention include Yugoslavia and all of its successor republics.
In Article I the state parties agree that genocide "is a crime under international law which they undertake to prevent and to punish."
Article II defines genocide as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group; . . .";
Article IX provides that "disputes between the Contracting Parties relating to . . .the responsibility of a State for genocide . . . shall be submitted to the International Court of Justice at the request of any of the parties . . ." The Convention also envisions the possible creation of an international criminal tribunal to punish individuals, but until that time calls for their prosecution in national courts.
Bosnia-Herzegovina applied to the ICJ in March 1993 charging that since April 1992 Yugoslavia had engaged in the bombing and shelling of towns and villages, the destruction of houses and forced migration of civilians, mass execution, murder, torture, and rape. Two million of Bosnia's 4.5 million people had become refugees and 134,000 had been killed. By 1993 Serbians had systematically raped over 50,000 Muslim women, some of them repeatedly so they would be impregnated.
Bosnia claimed that the acts had been committed by former members of the Yugoslav People's Army and by Serb military and paramilitary forces under their direction. Yugoslavia's active support clearly violated international law. Witnesses would testify to Serbian-sponsored acts of "murder, summary execution, torture, the mass rape of women, the rape of children, mayhem, so-called 'ethnic cleansing' and the detention of Bosnian citizens in concentration camps, rape camps and death camps."
Just as Hitler had targeted Jews, Serbian Yugoslavia was eliminating Muslims. Just as the 1938 Munich agreement unconscionably allowed the Nazis to take Czechslovakia, European proposals to partition Bosnia would reward Serbian fascism, aggression and genocide. In order to prevent Muslim extirmination and to assure its continued existence as a U.N. member state, Bosnia asked the court to immediately order ten provisional measures by declaring:
Bosnia also asked the ICJ to conduct future hearings on its demand for reparations from Yugoslavia for damages to persons, property, the economy and environment.
Following the 1995 Dayton peace agreement, Bosnian Serbs controlled the map area identified in green on the Yugoslav border, while Bosnia's Muslims and Croats governed the pink territory.
The International Court of Justice has fifteen judges from different countries elected by the U.N. General Assembly and Security Council. They serve staggered nine year terms with elections of five judges every three years. The court sits at the Hague in the Netherlands.
Bosnia's application went before a full plenary tribunal including judges from six European countries--France, Germany, Hungary, Italy, Russia, and the United Kingdom (the only woman judge); three jurists from the Americas--the United States, Venezuela, and Guyana; three African members from Algeria, Sierra Leone, and Madagascar; and three from Asia--China, Japan and Sri Lanka.
Since none of the 15 are from Bosnia or Yugoslavia, each could appoint an additional ad hoc judge. Bosnia chose a British barrister, Eli Lauterpacht, CBE, QC, Director of the Research Centre for International Law at Cambridge University. Yugoslavia named Judge ad hoc Milenko Kreca. In 1994 the Algerian judge Mohammed Bedjaoui was elected ICJ President, and the U.S. judge Stephen M. Schwebel as Vice-president.
Bosnian Ambassador to the United Nations Muhamed Sacirbey heads a legal team that has enlisted talent from the United Kingdom and the U.S. Initially University of Illinois law professor Francis Boyle argued the Bosnia case. In 1994 the government retained a new team led by Van den Biesen, NYU Law Professor Thomas Franck, and Khawar Qureshi of the United Kingdom.
Serbian representative Rodoljub Etinski also enlisted well known international advocates to assist its government lawyers-- Israel's Shabtai Rosenne to oppose the request for provisional measures, and then Ian Brownlie of the United Kingdom.
In 1945 the U.N. established the International Court of Justice as a successor to the prior world court. Under its statute, the ICJ can rule on disputes between states, and its orders may ultimately be enforceable by the Security Council. When prolonged delay would cause irreparable prejudice, Article 41 of the Statute empowers the court to order provisional measures designed to preserve the parties' rights until the case is decided.
Bosnia's case is the ICJ's first under the Genocide Convention. Maritime and territorial disputes have historically dominated the court's extremely light workload. In most cases, losing parties have complied with the court's decisions, and the Security Council has never enforced a judgment. Bosnia's challenge to the U.N. arms embargo is the second case asking the ICJ to find a Security Council action illegal.
Bosnia applied under Article IX of the Genocide Convention which allows contracting parties to submit disputes to the ICJ. When the killing continued, Bosnia sought an immediate ICJ provisional order ending the arms embargo in order to obtain military assistance needed to prevent further genocide. After the 1995 Dayton peace accords separated the combatants, Bosnia sought ICJ mandated reparations for damages. (ICJ Photo from United Nations, Office of Public Information.)
Resolving Bosnia's multiple claims has engaged the ICJ for several years in an ongoing process of reviewing contested facts and competing legal theories.
Advocates for each side offer facts that support their position. If you want to decide the case, additional facts may help resolve the contested issues.
In order to understand all aspects of the case, you should review the additional facts to determine which information best supports each side. Points are awarded for selecting the most appropriate evidence, and points are lost for making incorrect choices.
The former Yugoslavia became a party to the Genocide Convention in 1948 without reservation to the court's jurisdiction. Bosnia formally seceded from Yugoslavia and claimed independence in March 1992. In December 1992 Bosnia officially notified the U.N. that it would join the Convention as a successor state. Bosnia announced that it would be bound by the convention's terms from its date of independence the previous March.
In June 1992 the Presidents of Montenegro and Serbia by letter formally agreed to accept ICJ decisions when disputes arose with secessionist republics of the former Yugoslavia.
Yugoslavia's President Milosevic aspired to lead a "Greater Serbia" and organized Serb "crisis committees" in Bosnia before the war. Two Bosnian Serbs, Radovan Karadzic and Ratko Mladic led the political and military campaigns that seized considerable territory from the predominantly Muslim government.
The Yugoslav army did not conduct organized operations in Bosnia but did provide support to its ethnic allies. The U.N. ad hoc war crimes tribunal has indicted two officers of the Yugoslav army for war crimes committed in Bosnia.
As Serbian forces captured villages, they forcibly expelled Muslim and Croatian inhabitants so they could govern an ethnically pure territory. Serbs held their Muslim captives in camps where systematic torture and rape terrorized the defenseless and prevented future childbearing by Muslim women. At Sebrenicia, an inadequately defended U.N. "safe haven" in a Serbian dominated region, Serbs allegedly massacred 6,000 unarmed Muslim men and boys.
Croation forces, Bosnia's army and Muslim paramilitary groups have terrorized and expelled Serb civilians when seizing new territory by force. Bosnia and Croatia also maintained prisons and detention camps.
The ICJ's first challenge in this case was to determine the scope of its own power to hear Bosnia's different claims. Bosnia not only invoked the Genocide Convention but also asked the court to find illegal the arms embargo imposed by the U.N. Security Council.
Advocates for each side presented legal arguments that supported their position. In order to decide the contested issues you must understand the competing arguments.
Review the international law arguments to determine which rationale best supports each side. Points are awarded for identifying the most appropriate arguments that support each side.
The United States and the United Kingdom demanded that Libya extradite for trial two suspects in the bombing of a Pan American airliner over Lockerbie, Scotland. Libya refused, but offered to surrender the suspected terrorists to an impartial international tribunal or to try them in its national courts. The U.S. and the U.K. then obtained a Security Council resolution imposing sanctions on Libya until it surrendered the two men.
Libya asked the ICJ to rule that the sanctions were beyond the Security Council's authority under the U.N. Charter. The governing international treaty on civil aviation allowed a state either to extradite or to try suspected terrorists in national courts. The ICJ rejected Libya's claim.
During a long civil war, the Sandinista government of Nicaragua battled "Contra" paramilitary forces that received extensive U.S. assistance. After concluding that the U.S. CIA had mined its harbor, Nicaragua asked the International Court of Justice first for provisional measures and then for reparations.
When the United States disputed the court's jurisdiction, the ICJ determined that it had the authority to review Nicaragua's claim. The U.S. then refused to appear, and Nicaragua's evidence of extensive intervention went unanswered. The ICJ issued a provisonal order directing the U.S. to end further intervention and subsequently approved reparations.
For disputes involving a treaty such as the Genocide Convention, both states must be parties. Only states and international organizations can bring a case to the ICJ.
When a state such as Yugoslavia breaks apart, the newly created states may accept or reject treaties approved by the former government. In the 1960s most of the newly independent states in Africa and Asia succeeded to all the treaties of their former colonial rulers.
When a state accedes to a treaty for the first time, that treaty's provisions govern when it takes effect. Under Article XIII, the Genocide Convention takes effect on the "ninetieth day following the deposit of the instrument."
Since the Nuremberg prosecution, the prohibition on genocide has been considered binding on all states as a peremptory norm of customary law whether or not the government has ratified the 1948 Convention.
Chapter VII of the U.N. Charter empowers the Security Council to adopt mandatory measures and to use armed force if needed in response to aggression. Article 51 grants a state if attacked the "inherent right of individual or collective self-defence . . . until the Security Council has taken measures." A state that repels an invasion to protect its territorial integrity should report to the Security Council which would then exercise its authority and responsibility.
In order to convict and punish individuals charged with genocide, the U.N. prosecutor at the ad hoc War Crimes Tribunal must prove intent as a state of mind. That standard of proof in criminal trials against individuals differs from the civil standard applied by the ICJ in reviewing a state's claim for reparations against another government. In state vs. state civil proceedings intent can be deduced from acts without proving a guilty mind.
General principles of nations provide a source for the lower standard in civil proceedings. In the U.S., criminal guilt must be established by proof beyond a reasonable doubt while civil liability is based on a less demanding standard of proof--the preponderance of the evidence. Similarly, Chinese law requires an employee living above his known income to identify the source.
Below are arguments for both sides in this case. It's not an exhaustive list, but it may help you reach a decision. You'll get points for recognizing which arguments best support each side.
Bosnia's contested secession of 1992 was illegal. Even if Bosnia had legitimately been recognized as independent by year's end, the new government would not be a party to the Genocide Convention until ninety days after its December notice to the U.N. Thus under convention Article XIII Bosnia became a proper party in March 1993, on the "ninetieth day following the deposit of the instrument."
The Security Council has aided rather than checked the aggressor by denying the victimized government its right to collective self defense. The Council has misused its peacekeeping authority under Chapter VII and deprived a member state of rights expressly granted in Article 51.
In addition, States parties to the Genocide Convention should recognize a treaty obligation to prevent genocide; instead are illegally directed by the Security Council to impose an arms embargo on the victims.
The Security Council has adopted an arms embargo as well as other provisional measures exercising its political power to keep the peace. The ICJ is a court of law, not a U.N. political organ. The court cannot overturn political decisions taken in the U.N. Security Council and has so far never gone against Security Council resolutions in its rulings. There is no hierarchical relation between the two U.N. bodies, so you cannot appeal against a Security Council resolution at the court. The council is not subject to the court because it is not a state. It would be inappropriate for the court to order different provisional measures.
The civil war between Bosnia's Muslims, Croats and Serbs does not involve two sovereign, independent states. There is no international conflict resulting from aggression by one state against another. The ICJ only has jurisdiction over disputes between two states; Local Serb political and military commanders assert a basic right of self determination recognized in the U.N. Charter. All of the combatants are Bosnians, and the ICJ has no authority to take sides in their civil conflict.
Both the means and the ends fit the conventions's definition of genocide: "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such." Mulslim men were killed en masse, women and children compelled to flee.
Without question the Genocide Convention applies to widespread atrocities that include killing Muslims, causing them serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about the group's physical destruction in whole or in part, and imposing measures intended to prevent births within the group;
Bosnia is one of a number of successor states of the former Yugoslavia, a party to the Genocide Convention. The Convention remained in force without interruption when Bosnia became indepependent because the new government announced its acceptance of the treaty. Convention Article XIII does not apply to successor states, but only to new states whose accession becomes effective after ninety days.
Although Bosnia's notice to the U.N. came nine months after independence, the Genocide Convention still did not lapse. Its provisions are so vital that since Nuremberg all have recognized universal obligations whether or not a state formally consents to be bound.
Not all wartime killing amounts to genocide, and both sides have fought viciously. Rival paramilitary groups have terrorized and expelled civilians when seizing new territory by force. Each side maintains prisons and detention camps, has destroyed religious monuments, and discriminates against adversaries of different ethnic groups.
The genocide convention is inapplicable to the undeniable suffering which exists in Bosnia, because soldiers lack the requisite intent to exterminate people of different ethnicity. The combatant's intent is to seize territory. The Genocide Convention does not apply to forcible deportation from captured towns, a traditional spoil of war.
Check the boxes below to indicate for each item which supports Yugoslavia and which supports Bosnia. Your score will be determined by how well you understand which items support each side.
The Security Council has adopted an arms embargo as well as other provisional measures exercising its political power to keep the peace. The ICJ is a court of law, not a U.N. political organ. The court cannot overturn political decisions taken in the U.N. Security Council and has so far never gone against Security Council resolutions in its rulings. There is no hierarchical relation between the two U.N. bodies, so you cannot appeal against a Security Council resolution at the court. The council is not subject to the court because it is not a state. It would be inappropriate for the court to order different provisional measures.
The Security Council has aided rather than checked the aggressor by denying the victimized government its right to collective self defense. The Council has misused its peacekeeping authority under Chapter VII and deprived a member state of rights expressly granted in Article 51.
In addition, States parties to the Genocide Convention should recognize a treaty obligation to prevent genocide; instead are illegally directed by the Security Council to impose an arms embargo on the victims.
The Security Council has adopted an arms embargo as well as other provisional measures exercising its political power to keep the peace. The ICJ is a court of law, not a U.N. political organ. The court cannot overturn political decisions taken in the U.N. Security Council and has so far never gone against Security Council resolutions in its rulings. There is no hierarchical relation between the two U.N. bodies, so you cannot appeal against a Security Council resolution at the court. The council is not subject to the court because it is not a state. It would be inappropriate for the court to order different provisional measures.
The civil war between Bosnia's Muslims, Croats and Serbs does not involve two sovereign, independent states. There is no international conflict resulting from aggression by one state against another. The ICJ only has jurisdiction over disputes between two states; Local Serb political and military commanders assert a basic right of self determination recognized in the U.N. Charter. All of the combatants are Bosnians, and the ICJ has no authority to take sides in their civil conflict.
Both the means and the ends fit the conventions's definition of genocide: "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such." Mulslim men were killed en masse, women and children compelled to flee.
Without question the Genocide Convention applies to widespread atrocities that include killing Muslims, causing them serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about the group's physical destruction in whole or in part, and imposing measures intended to prevent births within the group;
Bosnia is one of a number of successor states of the former Yugoslavia, a party to the Genocide Convention. The Convention remained in force without interruption when Bosnia became indepependent because the new government announced its acceptance of the treaty. Convention Article XIII does not apply to successor states, but only to new states whose accession becomes effective after ninety days.
Although Bosnia's notice to the U.N. came nine months after independence, the Genocide Convention still did not lapse. Its provisions are so vital that since Nuremberg all have recognized universal obligations whether or not a state formally consents to be bound.
Not all wartime killing amounts to genocide, and both sides have fought viciously. Rival paramilitary groups have terrorized and expelled civilians when seizing new territory by force. Each side maintains prisons and detention camps, has destroyed religious monuments, and discriminates against adversaries of different ethnic groups.
The genocide convention is inapplicable to the undeniable suffering which exists in Bosnia, because soldiers lack the requisite intent to exterminate people of different ethnicity. The combatant's intent is to seize territory. The Genocide Convention does not apply to forcible deportation from captured towns, a traditional spoil of war.
You decided in favor of Bosnia. So did the International Court of Justice, although not on every issue.
In April 1993 the court issued provisional orders to both Bosnia and Yugoslavia directing both parties to prevent genocide in the future. Over the dissent of the Russian judge the court also commanded Yugoslavia to be especially vigilant. The ICJ limited its ruling to the Genocide Convention and denied Bosnia's claim that the Security Council illegally imposed an arms embargo. In October 1993 the court reaffirmed its April order, noting: "great suffering and loss of life has been sustained by the population of Bosnia-Herzegovina in circumstances which shock the conscience of mankind and flagrantly conflict with moral law and the spirit and aims of the United Nations." The Yugoslav ad hoc judge dissented.
In July 1996 the ICJ rejected Yugoslavia's attempt to have the case dismissed. The court determined that it had jurisdiction to review Bosnia's allegations of genocide and claim for reparations. The ad hoc Yugoslav judge again dissented.
Text of July 11, 1996 ICJ Opinion
At the time this case problem was completed in August 1996 the ICJ had only begun to receive and review the evidence of ethnic cleansing. Final disposition of Bosnia's claims may be years away.
You decided in favor of Yugoslavia. The International Court of Justice ruled in favor of Bosnia, although not on every issue.
In April 1993 the court issued provisional orders to both Bosnia and Yugoslavia directing both parties to prevent genocide in the future. Over the dissent of the Russian and Yugoslav ad hoc judge the court also commanded Yugoslavia to be especially vigilant. The ICJ limited its ruling to the Genocide Convention and denied Bosnia's claim that the Security Council illegally imposed an arms embargo. In October 1993 the court reaffirmed its April order, noting: "great suffering and loss of life has been sustained by the population of Bosnia-Herzegovina in circumstances which shock the conscience of mankind and flagrantly conflict with moral law and the spirit and aims of the United Nations."
Text of July 11, 1996 ICJ Opinion
In July 1996 the ICJ rejected Yugoslavia's attempt to have the case dismissed. The court determined that it had jurisdiction to review Bosnia's allegations of genocide and claim for reparations. The ad hoc Yugoslav judge again dissented. At the time this case problem was completed in August 1996 the ICJ had only begun to receive and review the evidence of ethnic cleansing. Final disposition of Bosnia's claims may be years away.
