A Case of Genocide?

   Under the Charter of the United Nations (esp. Ch. 1, Art. 2), states
   have obligations to treat each other as equals, to settle their disputes by
   peaceful means, to refrain from the threat or use of force, to respect
   the territorial integrity and political independence of other states (etc.).
Beginning March 24, 1999, the U.S.-led NATO bloc violated each of these Charter principles by initiating a war of aggression against the Federal Republic of Yugoslavia.  In turn, Yugoslavia on April 28 asked the International Court of Justice to issue an injunction against ten member-states of the military bloc then attacking it, naming the United States specifically; Yugoslavia also sought the ICJ's determination as to the legality of this attack on its territory.[1] 

In this Case Concerning Legality of Use of Force, which extended through December 2004, the ICJ would rule in every single one of the complaints brought by Yugoslavia that it lacked the jurisdiction to hear any of them. Before the ICJ was finished, it summarily dismissed Yugoslavia's complaints against the United States and Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, Spain, and the United Kingdom.

During oral pleadings, U.S. representatives emphatically told the court that the United States "has not consented to such a suit, and without such consent the Court is manifestly without jurisdiction."  One U.S. representative boldly instructed the court that, even if "somehow" the United States' legal brief were found "invalid," it wouldn't matter, and the "legal outcome would be the same.  The United States has not consented to the Court's jurisdiction in this case, and absent such consent, the Court has no jurisdiction to proceed."[2]

Most remarkable of all, as early as June 2, 1999, with Yugoslavia still under attack by NATO, the ICJ ruled that it "manifestly lacks jurisdiction" to entertain the complaint naming the United States, and lacked the right to enjoin the aggressors from continuing with their attack.  The ICJ "cannot decide a dispute between States without the consent of those States to its jurisdiction," 12 of 15 judges agreed.  Since the "United States observes that it 'has not consented to jurisdiction…and will not do so'," the ICJ was left with no alternative: "in the absence of consent by the United States,…the Court cannot exercise jurisdiction…"[3]

Notice if you will the contrast between the ICJ's perfunctory failure to address the "supreme international crime" in the case of NATO's 1999 aggression against Yugoslavia, on the one hand, and the ICJ's extensive treatment of allegations of "genocide" in the case of the Srebrenica-related killings in the recently decided Application of the Convention on the Prevention and Punishment of the Crime of Genocide (February 26), on the other.

In the first, the ICJ pled lack of jurisdiction, not because the crime had not been committed (in dismissing the complaint against the United States, the ICJ even stated it was "profoundly concerned with the use of force in Yugoslavia," adding that the war "raises very serious issues of international law"[4]), but because a superpower bore direct responsibility, and it had instructed the world in no uncertain terms that it rejected the ICJ's jurisdiction.  "[T]here is a fundamental distinction," went the ICJ's convoluted reasoning, "between the question of the acceptance by a State of the Court's jurisdiction and the compatibility of particular acts with international law; the former requires consent; the latter question can only be reached when the Court deals with the merits after having established its jurisdiction and having heard full legal arguments by both parties…."[5]  When this Order to dismiss Yugoslavia's complaint was announced, the New York Times reported that, "In effect, Yugoslavia had little hope of obtaining a blanket order to stop the bombing when it sued….Belgrade had hoped to divide NATO and embarrass at least a few member governments."[6]  With this framing, the ICJ's acceptance of U.S. lawlessness—a startling admission on the court's part—was depicted as little more than the dismissal of a nuisance lawsuit brought by an international pariah trying to score a few points against the allies.  

In the second case, however, that of the application of the Genocide Convention to Srebrenica-related killings, the ICJ developed novel and innovative arguments at great length for its exercise of jurisdiction, devoting roughly 40 percent of its Judgment to a defense of its jurisdiction (conservatively estimated).  In both cases, the jurisdiction of the ICJ was invoked by the plaintiffs (i.e., Yugoslavia in 1999, and Bosnia – Herzegovina from 1993 on) under Article 9 of the Genocide Convention, a very fluid article permitting the parties to the Convention to submit their disputes to the ICJ for adjudication.[7] In both, the defendants (i.e., the ten member-states of NATO in 1999, and Yugoslavia in 2006) argued that the ICJ lacked jurisdiction to hear the case.  But in the one case (i.e., Yugoslavia v. the United States), the ICJ accepted the defendant's rejection of its jurisdiction, acknowledging that as long as the defendant had not consented, the case was in effect closed. Whereas in the other case (Bosnia and Herzegovina v. Yugoslavia), the ICJ undertook laborious measures to show why it did in fact exercise jurisdiction, and, by a vote of ten-to-five, "Rejects the objections…made by the [defendant] to the effect that the Court has no jurisdiction; and affirms that it has jurisdiction, on the basis of Article IX of the Convention…"[8] 

If, like me, you detect something a tad askew about how the "principal judicial organ of the United Nations" handled these two complaints, dismissing the one while hearing the other—you might also be interested in this:  

"Marlise Simons and the New York Times on the International Court of Justice Decision on Serbia and Genocide in Bosnia," Edward S. Herman and David Peterson, ZNet, March 12, 2007   

  1. See Rodoljub Etinski, Request for the indication of provisional measures, Case Concerning Legality of Use of Force, ICJ, April 28, 1999; and Rodoljub Etinski, Application Instituting Proceedings, Case Concerning Legality of Use of Force, ICJ, April 29, 1999.
  2. These two statements were made by U.S. legal representatives David R. Andrews and John Crook, respectively.  See Request for the indication of provisional measures, ICJ, May 12, 1999, at 4:30 PM, par. 1.10 and par. 2.22.
 Federal Republic of Yugoslavia v. United States of America, ICJ, Order of June 2, 1999, pars. 19 – 31.—Each of Yugoslavia's other nine complaints eventually were dismissed according to the same reasoning: The one naming Spain on June 2, 1999, and the other eight on December 15, 2004.  See, e.g., Federal Republic of Yugoslavia v. United Kingdom, ICJ, December 15, 2004.
4. Federal Republic of Yugoslavia v. United States of America, ICJ, Order of  June 2, 1999,  par. 16.
5.  Ibid., par. 30. 
6. Marlise Simons, "Judges at The Hague Refuse To Halt the NATO Bombing," New York Times, June 3, 1999.
7.  See Convention on the Prevention and Punishment of the Crime of Genocide, which was adopted by the UN General Assembly on December 9, 1948, and first entered into force on January 12, 1951.
8. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (or Bosnia and Herzegovina v. Serbia and Montenegro), par. 471(1).  

"A Case of Genocide?" ZNet, March 10, 2007


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