The ICJ genocide trial, 3: Does the court have jurisdiction?

The outcome of the case may turn on the technical question of whether ICJ has the authority to try the charges at all. Remember that the parties to the suit (as it now stands) are two countries: Bosnia and Hercegovina is the plaintiff, and the State Union of Serbia and Montenegro is the respondent. Neither of these states existed in the form they exist now when the lawsuit was filed in 1993. Bosnia and Hercegovina in its present form, as a federal republic made up of two entities, was established by the Dayton Accords in 1995. Serbia and Montenegro came into existence with the agreement of the Constitutional Charter in 2003. The question of the authority of the court depends in large measure on whether the two presently existing states claim, or can be compelled by law to assume, successor status with the states that existed in 1993. There is a further question of whether the states that are currently parties to the suit actually represent the parties to the conflict at the time the suit was filed.

One of the strongest potential legal arguments was presented for the defence by Tibor Varady (this was a strategy that Mr Varady announced well in advance). He argued that since ICJ had declared in 2004 that it did not have jurisdiction in the suit filed by SRJ against NATO regarding the 1999 bombing campaign (SRJ charged the NATO countries with genocide, which would seem to weaken SCG advocate Stojanović's argument for a narrow application of the definition of genocide), it could not have jurisdiction in this case. What ICJ found in 2004 was that since SRJ was not a member of the United Nations at the time that it filed the suit (it was admitted to membership on 1 November 2000), it did not have standing to file a suit before ICJ. Mr Varady argues that the court should apply the same standard to all cases involving SRJ between 1992 and 2000.

There are some problems with the argument. The first is that in a separate decision in 2003, ICJ specifically excluded this argument. The second is that Article 9 of the Genocide Convention specifically names the ICJ as the venue for disputes over genocide (Why then did it decline to hear the case gainst NATO? Although formally ICJ did not rule on the merits of the case, this may have been a roundabout way of finding that it was clearly not a genocide case). It might be argued that a double standard is at work here, but if so it is a standard that argues that a state must be a party to the ICJ statute in order to initiate proceedings, but not in order to be held to the law. However, it seems as though there is enough vagueness in the rules that there may still be a window through which Mr Varady's argument might be accepted.

Then there is the question of succession: is today's state of SCG the same as the state of SRJ which was sued in 1993? Mr Stojanović argued that crimes were committed by a regime which was neither democratic nor representative, and added that it was more appropriate that individuals be tried for these crimes before ICTY and national courts than for a state to be called to respond. However, this argument runs counter to an established practice by which governments inherit the obligations of their predecessors (which is why a democratic Germany which has nothing in common with the Nazi regime continues to compensate victims of the Nazis, and a modern Turkish state finds itself repeatedly drawn into polemics over the genocide of Armenians by the Ottoman Empire).

Another question of succession has been raised obliquely by the defence, in the argument by counsel Saša Obradović. He pointed to the 24,216 victims of Serb nationality in Bosnia-Hercegovina identified by the Research and Documentation Center, and asked whether they were being represented by the plaintiff's attorneys. Mr Obradović failed to argue for the importance of this point, so I will do it for him: to the degree that he points to victims of more than one nationality, the argument calls into question whether there was a targeted "group" as required by Article 2 of the Genocide Convention, and to the degree that he points to military as well as civilian casualties in BH, the argument raises the question of whether the events can be qualified as genocide or civil war. If somebody bothers to make the argument, which is based on the multiethnicity of perpetrators and victims, it might be the strongest point that can be made against the applicability of the Genocide Convention. Though as I have argued before, this strategy amounts to denying genocide by admitting to crimes against humanity.

I am not sure that I can predict how the ICJ is likely to rule on the question of its own jurisdiction (in any case, I do not have to make a prediction -- we will find out soon enough). In a sort of enigmatic interview, presiding judge Rosalyn Higgins gave a fairly loose interpretation of how much she thinks the court is bound by precedent. My feeling is that after so many years, and given the inconsistency of the arguments offered by SCG, the judges will feel obligated to decide on the merits on the case. If so, that will mean that they cannot avoid setting a major precedent related to the legal definition of genocide.