CIAO DATE: 02/05/08
European Journal of International Law
Volume 18, Issue 4, September 2007
Symposium: Genocide, Human Rights and the ICJ
Permissible Derogation from Mandatory Rules? The Problem of Party Status in the Genocide Case
Stephan Wittich
In its Merits Judgment in the Genocide case, the International Court of Justice had to deal with the procedural question whether Yugoslavia (Serbia and Montenegro), at the time of the 1996 Preliminary Objections Judgment, had access to the Court. Given the unclear status of Yugoslavia within the United Nations between 1993 and 2000, this was highly doubtful. The Court avoided a definitive answer to that question by holding that it could not reopen the 1996 judgment which enjoyed the force of res judicata. The Court's overly broad application of the res judicata principle as well as its failure to examine ex officio Yugoslavia's status as a party in proceedings before the Court are not entirely convincing in legal terms. However, given the overall procedural and political circumstances prevailing in that case, the Court in 2007 had no other option than to reaffirm its jurisdiction and to proceed to deciding the merits of the case.
The International Court of Justice and the Elements of the Crime of Genocide
Claus Kreß
This article seeks to identify the contribution made by the International Court of Justice (ICJ or Court) to the international criminal law on genocide in its judgment of 26 February 2007 on the Case concerning the Application of the Convention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro).1 The overall assessment is as follows: while the judgment contains welcome clarification and consolidation of the international criminal law on genocide in several respects, the Court did not fully apprehend the complex structure of the crime. Most importantly, the Court did not provide a coherent explanation for its characterization of the atrocities committed in Srebrenica as genocide. This note will not deal in any detail with the concept of a state act of genocide constituting an internationally wrongful act, the ICJ's factual findings, or its approach to admitting and weighing evidence.
On What Conditions Can a State Be Held Responsible for Genocide?
Paola Gaeta
In the Genocide case the ICJ placed a broad interpretation on the obligation to prevent genocide, enshrined in Article I of the Genocide Convention. For the Court, this obligation has an operative and non-preambular nature with respect to the other obligations laid down in the Convention. In addition, it would necessarily imply the obligation for states themselves not to commit genocide. This latter finding is not entirely convincing for it is not in keeping with the historical foundations of the Convention and in addition results from an interpretation that, instead of clarifying the meaning of a treaty rule, infers a new obligation from it. The paper suggests that under international law the criminal liability of individuals and state responsibility for genocide are not triggered by the violation of the same primary rule. The contrary view is not corroborated by state practice and international case law: while the crime of genocide can be committed regardless of the existence of a state genocidal policy, the state's international responsibility necessarily requires such a policy. Also, for the international responsibility of the state to arise there is no need to demonstrate that the state as such, or one or more of its officials, harboured a genocidal intent in the criminal sense. The Court's finding is based on the notion that the state's international responsibility for genocide presupposes that of an individual acting on behalf of the state. This approach is flawed: in criminal matters the presumption of innocence only allows criminal courts to satisfy themselves that a person committed a crime. The Court could have confined itself to interpreting the obligation to prevent and punish genocide set out in Article 1 as endowed with an autonomous content and concluding, as in fact it did, that Serbia had violated both of them. It did not need to embark upon a construction of the Convention substantially marred by a misapprehension of the difference between genocide as an international wrongful act of state and genocide as a crime involving individual criminal liability.
The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia
Antonio Cassese
In its recent Genocide judgment, the International Court of Justice discussed the question of whether the acts of genocide carried out at Srebrenica by Bosnian Serb armed forces must be attributed to the Federal Republic of Yugoslavia (FRY), as claimed by Bosnia. It applied the ‘effective control’ test set out in Nicaragua, reaching a negative conclusion. The Court also held that the broader ‘overall control’ test enunciated by the International Criminal Court for the former Yugoslavia (ICTY) in Tadic did not apply, on two grounds. First, the test had been suggested by the ICTY with respect to the question of determining whether an armed conflict was international and not with regard to the different issue of state responsibility; secondly, in any case the test would have overly broadened the scope of state responsibility. The author argues that the ICTY admittedly had to establish in Tadic whether the armed conflict in Bosnia was internal or international. However, as no rules of international humanitarian law were of assistance for such determination, the Tribunal explicitly decided to rely upon international rules on state responsibility. The ICTY thus advanced the ‘overall control’ test as a criterion generally valid for imputation of conduct of organized armed groups to a particular state. The test was based on judicial precedents and state practice. In addition, the ICTY did not exclude the applicability of the ‘effective control’ standard, stating however that it only applied for the attribution to a state of conduct by single private individuals. Judicial decisions, even subsequent to Tadic, support the view that whenever conduct of organized armed groups or military units is at stake it suffices to show that the state to which they may be linked exercises ‘overall control’ over them, in order for the conduct of those groups or units to be legally attributed to the state. Hence, any sound critique of Tadic should not suggest that it dealt with a matter different from state responsibility. It should instead be capable of showing that state and judicial practice do not corroborate that test.
State Responsibility for Genocide: A Follow-Up
Marko Milanović
The article comments on the recent judgment of the International Court of Justice in the Genocide case, and discusses several issues which arise from it. It first briefly explains the several constraints under which the Court had to operate in deciding this case, most notably its limited jurisdiction, the legally very strict definition of genocide, and the litigation strategies of the two parties. The article then turns to examining two specific issues that the Court did not address in a fully satisfactory manner, namely the question of Serbia's responsibility for the acts of the Scorpions paramilitary group, as well as the Court's refusal to ask Serbia to produce certain confidential military documents. The Court's analysis of state responsibility for complicity in genocide and state responsibility for failing to prevent genocide is then addressed. The article finally criticizes the Court's reasoning when it comes to reparation and remedies.
Breach of the Obligation to Prevent and Reparation Thereof in the ICJ's Genocide Judgment
Andrea Gattini
In its judgment of 26 February 2007 in the Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, the Court by a majority of 12 to three found the respondent to be in breach only of its obligations under Article I of the Convention, namely the duties of prevention and punishment. Despite the traditional self-restraint professed by the Court, stressing its intention to ‘confine itself to determining the specific scope of the duty to prevent in the Genocide Convention, and to the extent that such a determination is necessary to the decision to be given on the dispute before it’, in the key passage of its judgment the Court stretched the interpretation of Article I to its maximum possible extent. On the one hand, it audaciously decided to disentangle the obligation to prevent in Article I of the Genocide Convention from any territorial link, substituting the traditional concept of ‘jurisdiction’ with the new and much more vague one of ‘capacity to effectively influence’. On the other hand, it endeavoured to flesh out its general scope. However, after having found Serbia in breach of her duties under Article I of the Genocide Convention, the Court, somehow contradictorily, denied any causal link between Serbia's conduct and the losses resulting from the Srebrenica massacres, and contented itself with a declaratory judgment as a form of satisfaction. The Court's reluctance to address the issue of concomitant causes can be partly explained by the uncertain state of practice and doctrine. Furthermore, Bosnia itself had not asked for monetary compensation for breaches of Article I. Even so, the Court could have shown more creativity and sensitivity with regard to the non-material damage suffered by the surviving heirs or successors of the Srebrenica victims.
Articles
The Trade and Development Policy of the European Union
Lorand Bartels
This article examines the EU's trade and development policy from the 1950s to the present day. From its origins in France's demand that the EEC join in its colonial enterprise, this policy has grown to embrace all developing countries in a complex patchwork of trade preferences. However, it would be wrong to see this status quo as the natural evolution of an early interest in assisting developing countries. Rather, the EU's system of trade preferences represents a compromise between its desire to protect the economic interests of the erstwhile colonies and the demands of non-privileged developing countries for improved access to European markets. From a development perspective, this produces anomalies. Even today, via more favourable rules of origin, Sudan trades on better terms with the EU than Laos. However, as this article seeks to demonstrate, due largely to enforceable WTO rules, the EU is now coming to adopt principle – the actual needs of developing countries – over history as the basis for its future trade and development policy.
The Application of the Most-Favoured-Nation Clause to the Dispute Settlement Provisions of Bilateral Investment Treaties: Domesticating the ‘Trojan Horse’
Yannick Radi
Contracting states bring a ‘Trojan Horse’ into the city when providing for most-favoured-nation clauses (MFN clause) in bilateral investment treaties (BIT). This affects the general equilibrium of the treaties, as recent case law from investment arbitration tribunals illustrates. In these cases the controversial issue is the applicability of the MFN clause to the dispute settlement provisions of the BITs. Arbitration practice and mainstream literature so far have focussed on the specific nature of the dispute settlement mechanism, asking whether the MFN clause should cover it or not. This article analyses the arguments put forward so far on this issue, and argues that by reason of the ‘effet utile’ the MFN clause always covers the dispute settlement mechanism, unless the opposite intention of the Contracting states can be demonstrated. Furthermore, this article considers that the prevailing focus on the entire mechanism is misleading. The main issue is in fact the scope of application of the MFN clause to the individual provisions on dispute settlement. Underlying this issue there is the tension between the MFN clause and the other provisions of BITs, whatever their procedural or substantive nature. This tension puts into question the rationality of providing for MFN clauses in bilateral investment treaties. But once such a clause is already adopted, this article suggests that the way to domesticate this ‘Trojan Horse’ is to substitute conditional MFN clauses for the unconditional MFN clauses presently provided for in BITs.
Book Reviews
The Concept of International Legal Personality, An Inquiry into the History and Theory of International Law
Robert Kolb
The Creation of States in International Law
Robert McCorquodale
War, Aggression and Self-Defence
Muge Kinacioglu, Dr.