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Bosnian Genocide Case Revision: Chances Minimal, Political Matter

General view of the International Court of Justice (ICJ) in session; UN photo/Andrea Brizzi

Initiation of revision of the judgment in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) is becoming more apparent. The judgement was rendered on 26 February 2007, and with it, shortly, Serbia was acquitted of genocide committed in Bosnia and Herzegovina, that it has been conspiring the execution of this crime and that it has been complicit in genocide, but it was held responsible for failing to take all reasonable measures to prevent the crime of genocide, and responsible for not arresting and extraditing Ratko Mladić, accused of the crime of genocide in Srebrenica.

My two main arguments concerning the possible revision of the judgment are:

  1. Chances of BiH for revision of the judgment are indeed minimal;
  2. Initiation of dispute settlements before international judicial institutions is always a political matter, and because of that countries sometimes initiate proceedings before the Court even if they know that the chances of winning a legal dispute are minimal.

Why BiH chances for the revision of the judgment are minimal? Although the International Court of Justice and its predecessor will mark 100 years of history, revision of a judgement was initiated only four times, with the fact that the last one is not yet adjudicated (the case of Malaysia and Singapore twenty days ago).

All three attempts of revision were unsuccessful. The statute of the International Court of Justice stipulates in its Article 61 has very strict requirements for the revision process. This is because Article 60 of the same Statute provides that judgements of the International Court of Justice are final and without appeal. The only exemption to this rule is that the parties, under the conditions laid down in Article 61 of the Statute, may initiate a revision process. That exemption should be interpreted very restrictively, as it shows the text of the Article 61 and the previous practice of the Court in this matter.

These are the conditions which must be met to possibly carry out a revision of a judgment:

  1. An application for revision of a judgement may be made only when it is based upon the discovery of some fact
  2. Discovered fact must be of such a nature to be a decisive factor for the outcome of a judgment of which revision is requested
  3. The fact was unknown to the Court, as well as to the party claiming revision when the judgement was given (if such ignorance was not due to negligence of the party that asks for a revision)
  4. The application for revision must be made at latest within six months of the discovery of the new fact
  1. No application for revision may be made after the lapse of ten years from the date of the judgement

In other words, BiH would have to deliver the Court a new fact which would have to be a decisive factor for the outcome of the 2007 judgment, moreover, nor BiH nor the Court were aware of this fact in 2007. BiH would also have to submit the application for revision until 26 February 2017 and to demonstrate that the new fact became known in the last 6 months.

Let’s start from the end: what kind of fact could BiH possibly discover in the last 6 months, which could be a decisive factor for the outcome of the 2007 judgment? It has been more than 6 months since the International Criminal Tribunal for the former Yugoslavia (ICTY) delivered the judgement in the cases against Perišić and Karadžić, so these facts are inadmissible. The media also mentioned the proceedings before the ICTY against Ratko Mladić and the closing arguments in this proceeding which were presented at the end of the last year. However, we must note the following: the closing arguments, as a rule, do not serve to submit new facts but to sum up the existing ones. Likewise, in the 2007 judgement, the International Court of Justice was very careful in using the new facts that are not determined in the judgment, but only in the indictment, so it remains an open question whether they would be accepted in this type of process.

The media also mention the possibility of ‘assembling the puzzle of facts’, in other words, using a larger number of facts which were supposedly “culminated” in the final say in the case against Mladić. It seems to me, however, that the chances for accepting this creative solution are slim, given the fact that the Court in its previous practice has very narrowly interpreted the question regarding what can constitute a new fact.

This is the main reason why the possible revision process will likely be declined.

The next question regarding this issue is who in BiH could start this process. Serbian member of BiH Presidency has repeatedly stated that he will not support initiation of the revision process, he also insisted that such a decision cannot be passed without him and that the BiH representative Sakib Softić has no authorisation for this process. On the other hand, the Bosniak member of the Presidency argues that there is no need for a new power of attorney. I would rather not address this issue in detail, because it partially concerns the national law of BiH, and because I have never seen such power of attorney. However, I must admit that initiation of the revision of a judgement is a political decision which someone should make, so even if Mr Sakib Softić is the legal representative, it is difficult to accept the argument that it is up to him to make this kind of decision.

At the end, I would like to briefly point out something about the second argument I made – processes before the International Court of Justice are sometimes initiated even though there are slim chances of getting the case (one of the examples is Serbian lawsuit against some NATO member states in 1999 due to illegal intervention). One of the reasons for this kind of political decision is that there is an unrealistic expectation of domestic public opinion regarding the matter of the dispute and politicians are trying not to damage their political image and (or) to be marked as traitors. Another possible reason is that the politicians want to use the Court to make the wider public aware of the facts for which they think are important, even if they know that from the standpoint of the case those facts are not relevant. I believe that all of this is relevant for BiH, too.

Finally, at the present moment, there is no good decision for those who are considering whether to initiate the revision process or not. If they initiate the process, they will probably lose the case and in the Bosniak part of society in BiH that could further reinforce dissatisfaction with the international community towards events which happened during the armed conflict. If they do not initiate the process of revision, a considerable part of society in BiH will say that they betrayed the state, national interest and that they have forever buried the chance for the truth to be found out about the role of Serbia in this crime. But that should have been considered before. As for Serbia, although the chances of revision are minimal, it should make thoughtfully preparations for this entire process which is of a great importance.

21 February 2017

Miloš Hrnjaz

The author is docent at the Faculty of Political Science, University of Belgrade, Serbia. This article is a reworked version of author’s blogpost.

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