Breaking developments in international law: a conversation on the ICJ's opinion in Bosnia and Herzegovina v. Serbia and Montenegro.

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

The panel was convened at 4:30 p.m., Thursday, March 29, by its moderator, Theodor Meron of the International Criminal Tribunal for the former Yugoslavia, who introduced the panelists: Leila Nadya Sadat of Washington University School of Law; Brigitte Stern of the University of Paris I--Pantheon Sorbonne; and Tibor Varady of Emory University School of Law.

INTRODUCTORY REMARKS BY THEODOR MERON *

Before turning to our distinguished panelists, I would like to make some brief introductory comments. Let me begin with a general observation. The finding by the International Court of Justice (ICJ) that genocide has occurred in Srebrenica is of fundamental importance, especially following upon the International Criminal Tribunal for the former Yugoslavia (ICTY) decision in the Krstic case. The fact that the court and tribunal have aligned their findings that genocide can occur in a quite circumscribed geographic area puts this issue to bed.

Having said that, I wish to focus in my initial remarks on some more specific aspects of the ICJ decision. This, as you know, was a civil case, but it is striking how much it draws from criminal law and issues of criminal responsibility. The subject matter--genocide--is one traditionally developed under criminal law. The Genocide Convention, under which this case was brought, does indeed touch upon relations between states and confers jurisdiction on the ICJ, but it is primarily a treaty about individual criminal responsibility for genocide. It is a treaty developed in the wake of World War II, where individuals were held criminally responsible for genocide under the rubric of crimes against humanity but where Germany itself was never held responsible. This nexus with criminal law has given the case several interesting features.

First, it proved to be a primarily fact-intensive case, where the result was largely determined by the evidence presented to the court. There were two components needed for Bosnia to prove its case: first, the evidence to establish whether genocide had occurred; and second, the evidence to establish Serbia's awareness and support. The important thing is to note that knowledge, or mens rea, inherent in both components, is not an issue that the ICJ is often called upon to adjudicate. This is especially true when the level of intent required is something as specific as intent to destroy a group or knowledge of this intent. Intent is not normally a matter of relevance to treaty interpretation. It is also especially hard to prove without subpoena power, especially when one must show knowledge and intent at the highest levels of government in order to find state responsibility. From our experience in the ICTY, we have learned how difficult it is even for a court established under Chapter 7 of the UN Charter to obtain the full cooperation of states for production of evidence. Such difficulties are enhanced in the case of the ICJ. The problem lies not only with the contrast between the ICJ's soft statutory language (Article 49) and the ICTY's peremptory language on directing orders to states to produce documents. Paradoxically, because the ICJ is not concerned with individual accused, the conclusions it may draw from any refusal are not limited as they would be in the ICTY. The problem is more that the ICJ is dealing with sovereign governments and this is demonstrated by the tradition constraining questions from the bench, an approach that is necessarily somewhat rigid and structured, given the ICJ bench of 15 or more and is not helpful in elucidation of questions of criminal responsibility, at least in the absence of a smoking gun.

Second, the close nexus to criminal law shows itself in another area: the standard of proof applied by the ICJ. In the case under discussion, the ICJ determined that claims against a state involving charges of exceptional gravity, must be proved by evidence that is, and I quote, "fully conclusive" and that the crime of genocide as well as attribution must have been "clearly established" (para. 209). The ICJ speaks about how "for a pattern of conduct to be accepted as evidence of [genocidal intent], it would have to be such that it could only point to the existence of such intent" (para. 373). This sounds a lot to me like the reasonable doubt standard and the requirement that guilt be the only reasonable inference from the facts. Indeed, in one instance in paragraph 422, the court says that certain facts, and I quote again, "have not been established beyond any doubt in the argument between the parties." The ICJ's decision to apply such a high standard of proof is noteworthy. Because of the egregious criminality of genocide and the serious implications of a determination that the state is responsible for genocide, it is perhaps reasonable for the court to apply standards of proof that are rather higher than the normal standard of balance of probabilities. But should the court apply standards as high as in a criminal case? Of course such higher standards will make it particularly hard for states to succeed in such cases in the future, especially given the requirement that this "fully conclusive" evidence be applied to the attribution to the state, meaning state actors at the highest level as well.

The court applies the high standard of conclusiveness to the charge of complicity but not to the charges pertaining to the non-prevention of genocide. To non-prevention of genocide, the court applies "proof of a high level of certainty, appropriate to the seriousness of the allegation," a standard that may be lower than "fully conclusive." If the balance of probabilities or preponderance of evidence test is considered too low, would the test of clear and convincing evidence, such as that followed by the Inter-American Court of Human Rights in the Velasquez-Rodriguez merits judgment, not better serve the goals of the convention? Or, perhaps the court's own standard of "proof of high level of certainty" would suffice in assessing all of the questions arising in what is, after all a civil case: committing genocide, complicity for genocide, non-prevention of genocide, and throughout the question of attribution. Would the result of the case be different? On these complex questions, I am afraid I can offer only more questions.

One of the problems here is that the court has no provision in the Statute or Rules on the burden of proof and its shaping of evidential rules as it goes along with a particular case does not give parties advance notice as to what is expected of them.

Third, this case has proved ground-breaking for the development of a synergy of cooperation between international courts and tribunals. Much ink has been spilt lamenting the danger of fragmentation of international law as a result of establishment of additional international courts. I must admit that this is a question that I have never been much troubled about. There is still a deficit, not a surplus, in international institutions, and I have confidence in the responsibility of judges to maintain the integrity and the holistic perception of international law. Here, the coexistence with the ICJ of a competent UN criminal tribunal proved beneficial for both institutions. I mentioned earlier the evidentiary difficulties in this case. They were alleviated, however, because the ICJ could rely on competent fact and law determinations in the judgments of the ICTY, a reliance which proved essential for the conclusions of the court. Without the ICTY judgments, it would have been much harder for Bosnia to argue its case. I note here that the ICTY judgments go primarily to the first evidentiary issue which I mentioned, whether genocide in fact occurred with the involvement of Bosnian-Serb officials, and not to the second issue, the extent to which Belgrade knew this.

In the absence of ICTY convictions of top Serbian leaders, the ICJ had little to use from the ICTY on this issue. The ICTY had held that downstream leaders such as Krstic had knowledge of Mladic's plan at Srebrenica, but it has never held upstream Serbian leaders responsible. In the absence of such findings, the ICJ declined to attribute knowledge of the genocide to Serbia (although it did find the genocide foreseeable in its finding on prevention). We can speculate, of course, on what would have happened had Milosevic not died, but we will never know.

The ICJ thus relied significantly on the ICTY. In turn, the ICTY enhanced its legitimacy and international reputation by this repeated and mostly very positive reliance on its decisions by the ICJ. Also groundbreaking was the finding by the international court that Serbia has violated its obligations towards the ICTY under the Genocide Convention by failing to transfer Ratko Mladic, indicted for genocide and complicity in genocide, for trial by the ICTY and thus having failed fully to cooperate with the tribunal. In the same vein, the Court ordered Serbia to take immediate steps under the Genocide Convention to transfer to...

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