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The Bosnian genocide case at the International Court of Justice (also known as Bosnia and Herzegovina vs. Serbia and Montenegro, official name Application of the Convention on the Prevention and Punishment of the Crime of Genocide) is an ongoing landmark court case where for the first time in the 60-year history of the International Court of Justice (ICJ) one state, Bosnia and Herzegovina, is accusing another state, Serbia and Montenegro, of genocide.
The case before the ICJ, the UN's highest judicial body, which exclusively hears disputes between states, relates to alleged attempts to wipe out the primarily Bosniak Muslim population of Bosnia. The hearings at the court in The Hague are set to run until May 9, 2006. A binding ruling is expected by the end of the 2006 or early 2007. If Bosnia wins, it could seek billions of dollars in compensation.
According to some reports, ruling in this case will have repercussions on the case "Croatia vs. Serbia and Montenegro" that is based on a similar indictment currently pending at the ICJ as well as other related cases that may be brought before this court in the future.
Background
The International Court of Justice (ICJ) in The Hague opened the case 13 years after Bosnia sued the rump Yugoslav state from which it seceded in 1992, followed by a war in which at least 100,000 people were killed. Bosnia and Herzegovina filed a claim on March 20, 1993 alleging violations of the UN Convention on the Prevention and Punishment of the Crime of Genocide against the former Yugoslavia during the 1992-1995 Bosnian war. According to the claim Bosnia and Herzegovina is arguing that the Yugoslavia had “planned, prepared, conspired, promoted, encouraged, aided and abetted and committed” genocide against its population.
Hearings on the merits of the case were delayed while Serbia and Montenegro challenged the court's jurisdiction, but the court made a preliminary ruling in 1996 that it had jurisdiction to hear the dispute. In addition Serbia and Montenegro have filed a counter suit accusing Bosnia and Herzegovina for commiting genocide over its Bosnian Serb population. The suit was dropped in 2000 after the fall of Milosevic regime in Belgrade in 1999. The case was further challenged as Yugoslavia has since changed its legal name to Serbia and Montenegro claiming that the latter was not officially member of the UN and hence does not fall under its jurisdiction. The court dismissed the claim allowing the case to proceed in 2003. It is important to note, however, that the Court earlier dismissed Yugoslavia's case against NATO-member countries, that relied on the same theory, i.e. Genocide, holding that there was no jurisdiction over NATO countries since Yugoslavia was not at the time a member of the UN.
Before the case has even come to court, the Sarajevo legal team have also been forced to deal with resistance from the whole Balkan region, and even from within Bosnia itself. Complaints have emerged from various sides about the expense of the proceedings particulary coming from the Republika Srpska one of two entities comprising Bosnia and Herzegovina. The case was further hindered by lack of state funding as the Serbian side of the Bosnian parliament frequently vetoed any attempts to budget the court case at the state level. Serbia and Montenegro has also repeatedly urged Bosnia and Herzegovina to settle outside court.
Despite all that the hearings on the case officially began on February 28, 2006.
The two sides
Bosnian case
According to some reports Bosnian lawyers face the daunting task of proving not only that genocide occurred in Bosnia, but also that responsibility lay with an entire state. The task is viewed as difficult given the uniqueness of the case and the fact that no state has ever been convicted of genocide in the past.
The Bosnian side will rely heavily on the findings and decisions of International Crimes Tribunal for the Former Yugoslavia (ICTY) that was also set up by the UN to try individuals accused of war crimes and genocide in the conflicts following the break-up of Yugoslavia. Indeed the ICTY has ruled in a Srebrenica massacre court case (so called Prosecutor vs Krstić) that Bosnian Serb Army has committed the act of genocide in and near the Bosnian town of Srebrenica against the Bosniak population.
It will be up to Bosnian lawyers to provide evidence that the Srebrenica massacre is one of many cases of genocide that took place in Bosnia and Herzegovina, as well as that Serbia and Montenegro is directly responsible for those crimes.
Serbian defense
A key part of the defence case will focus on the issue of the state-based intent to mass genocide, which is a part of the very definition of genocide, since genocide has to include the intent to destroy a people, in whole or in part.
The Serbian side may therefore argue that there is a lack of evidence that senior Yugoslav officials, even as individuals, had a specifically genocidal intent to destroy a particular part of the Bosnia’s population at all.
Serbian officials also had a numerous objections on the formal law side of the process and International UN Court of Justice and its jurysdiction over the case, since the former Federal Republic of Yugoslavia (now Serbia and Montenegro) was not a member of the UN during the Bosnian War (in a period 1992-2000) and according to that, its war operations could not be retroactivly considered within UN-based court institution. (for example, Serbian allegations against the NATO for its war crimes in 1999 against the Federal Republic of Yugoslavia sent to the UN International Court of Justice were compleatly refused, because of the law barriere to prosecute one side (here, the NATO) from another side that was off the UN. (here, FRY))