INTRODUCTION
On February 26th 2007 the International Court of Justice rendered a ruling on the claim brought by Bosnia and Herzegovina (hereinafter, “Bosnia”) against Serbia (and Montenegro initially, hereinafter, “Serbia”), on the application of the Convention on the Prevention and Punishment of the Crime of Genocide.[1] The greatest issues at stake were whether a State could be found guilty of genocide under the Genocide Convention, and if Bosnia was entitled to reparation.
On the first issue, the Court ruled that article 2 of the Genocide convention applies to States. The Court found that there were no grounds to hold Serbia internationally responsible for genocide or complicity to genocide (lack of dollus speciallis)
The Court did find that Serbia was internationally responsible for not preventing and punishing acts of genocide. Nonetheless, the Court found that this did not amount to liability of Serbia. The fact that Serbia did nothing to prevent the genocide, did not mean that it could have actually prevented it. The Court found no evidence to support a different conclusion, thus awarded no compensation to Bosnia.
This note will discuss the matter of reparation by compensation requested by Bosnia, without discussing any other of the issues that this case brings up. I will try to show that the reasoning of the court was inconsistent, and reached the wrong conclusion with the evidence as presented.
FACTS[2]
On 9 January 1992, the Republic of the Serb People of Bosnia and Herzegovina, later to be called the Republika Srpska (RS), declared its independence. This entity never attained international recognition as a sovereign State, but it had de facto control of substantial territory, and the loyalty of large numbers of Bosnian Serbs.
There were close ties between the Government of the Serbia and the authorities of the Republika Srpska, of a political and financial nature, and also as regards administration and control of the army of the Republika Srpska (VRS).
There is overwhelming evidence that massive killings in specific areas and detention camps throughout the territory of Bosnia and Herzegovina were perpetrated during the conflict. Furthermore, the evidence presented showed that the victims were in large majority members of the protected group, muslim bosnians, which suggests that they may have been systematically targeted by the killings.
For the purpose of this case, based on the evidence gathered in the Krstić and Blagojević cases before ICTFY, the Court decided to focus just in the massacre at Srebrenica. Bosnian Serb forces killed over 7,000 Bosnian Muslim men following the takeover of the “safe area” in July 1995.
FINDINGS OF THE COURT
The Court found that Serbia failed to comply with its obligations under the Genocide Convention in respect of the prevention and punishment of genocide (art. 1).
Court found that the authorities of Serbia could not have been unaware of the grave risk of genocide once the VRS forces had decided to take possession of the Srebrenica enclave, and that in view of its influence over the events, the Respondent must be held to have had the means of action by which it could seek to prevent genocide, and manifestly refrained from employing them.
However, the Court found that the nexus between the wrongful act and the injury could not be considered established, as the Court was not able to conclude from the case as a whole and with a sufficient degree of certainty that the genocide at Srebrenica would in fact have been averted if the Respondent had acted in compliance with its legal obligations. Hence, the Court decided that financial compensation was not the appropriate form of reparation for the breach of the obligation to prevent genocide.
The Court found Bosnia and Herzegovina entitled to reparation in the form of satisfaction, in the form of a declaration in the present Judgment that Serbia failed to comply with the obligation imposed by the Convention to prevent the crime of genocide.
DISCUSSION
Of the various forms of reparation, compensation is perhaps the most commonly sought in international practice. In the Gabčíkovo-Nagymaros Project case, the Court declared: .[i]t is a well-established rule of international law that an injured State is entitled to obtain compensation from the State which has committed an internationally wrongful act for the damage caused by it..[3]
In order for damages to be awarded, there needs to be a causal nexus between the wrongful act and the damage. In the case at hand, the Court did not find there was a nexus between Serbia´s omission to prevent genocide, and the damage caused by the genocide in Srebrenica. The test used by the Court was that it could not be concluded from the case as a whole and with a sufficient degree of certainty that the genocide at Srebrenica would in fact have been averted if the Respondent had acted in compliance with its legal obligations.
The questions that arise from the use of this test are two: 1) Is a “sufficient degree of certainty” an adequate test to establish the causal nexus? 2) In case the genocide could not have been avoided, but partially mitigated, could Serbia be held partially liable for its omission?
Regarding the first question, it seems too demanding that the Court ask for certainty. Previous case law provided that in determining the causal link, the tests should be either “normality” or “predictability”. That is, whether the result can reasonably be traced to the wrongful act, or whether that result was foreseeable. The new test brought by the Court renders the possibility of establishing a nexus very slim.
Should the Court have used a normality test, it would have probably reached the conclusion that, having had Serbia a strong influence on the VRS and the government of RS, and should Serbia have acted to prevent the genocide, the effects of genocide would have been at least partially mitigated.
This leads to the second question. It could definitely be argued that Serbia´s omission partially contributed to the massacre in Srebrenica. The determination of the causal link may be complicated by the fact that damage was not caused only by Serbia´s wrongful act, but also by one or more other causes. [4]
It is evident obvious that some parts of the damage to Bosnia can be severable in causal terms from those attributed to the main acts of genocide. As stated in the Zafiro claim[5], the tribunal went further and in effect placed the onus on the responsible State to show what proportion of the damage was not attributable to its conduct.
This is a clear case where the omissions of Serbia, even if they could have not prevented the genocide, have helped to partially cause certain injuries to Bosnia. Serbia should have been held liable up to that standard, and it should have been to Serbia to prove the limits to it´s liability.
CONCLUSION
The Court tried to find a political way out of this case, awarding satisfactory measures in favor of Bosnia. However, it failed to rule consciously on the real issue, Serbia´s liability.
In trying to avoid a result favorable to Bosnia, the Court created a test which in most cases will prevent any causal nexus to be established. The certainty required will be a burden of proof unbearable for almost all claimants, and the lack of partial responsibility will prove to be a problem in future similar cases.
On February 26th 2007 the International Court of Justice rendered a ruling on the claim brought by Bosnia and Herzegovina (hereinafter, “Bosnia”) against Serbia (and Montenegro initially, hereinafter, “Serbia”), on the application of the Convention on the Prevention and Punishment of the Crime of Genocide.[1] The greatest issues at stake were whether a State could be found guilty of genocide under the Genocide Convention, and if Bosnia was entitled to reparation.
On the first issue, the Court ruled that article 2 of the Genocide convention applies to States. The Court found that there were no grounds to hold Serbia internationally responsible for genocide or complicity to genocide (lack of dollus speciallis)
The Court did find that Serbia was internationally responsible for not preventing and punishing acts of genocide. Nonetheless, the Court found that this did not amount to liability of Serbia. The fact that Serbia did nothing to prevent the genocide, did not mean that it could have actually prevented it. The Court found no evidence to support a different conclusion, thus awarded no compensation to Bosnia.
This note will discuss the matter of reparation by compensation requested by Bosnia, without discussing any other of the issues that this case brings up. I will try to show that the reasoning of the court was inconsistent, and reached the wrong conclusion with the evidence as presented.
FACTS[2]
On 9 January 1992, the Republic of the Serb People of Bosnia and Herzegovina, later to be called the Republika Srpska (RS), declared its independence. This entity never attained international recognition as a sovereign State, but it had de facto control of substantial territory, and the loyalty of large numbers of Bosnian Serbs.
There were close ties between the Government of the Serbia and the authorities of the Republika Srpska, of a political and financial nature, and also as regards administration and control of the army of the Republika Srpska (VRS).
There is overwhelming evidence that massive killings in specific areas and detention camps throughout the territory of Bosnia and Herzegovina were perpetrated during the conflict. Furthermore, the evidence presented showed that the victims were in large majority members of the protected group, muslim bosnians, which suggests that they may have been systematically targeted by the killings.
For the purpose of this case, based on the evidence gathered in the Krstić and Blagojević cases before ICTFY, the Court decided to focus just in the massacre at Srebrenica. Bosnian Serb forces killed over 7,000 Bosnian Muslim men following the takeover of the “safe area” in July 1995.
FINDINGS OF THE COURT
The Court found that Serbia failed to comply with its obligations under the Genocide Convention in respect of the prevention and punishment of genocide (art. 1).
Court found that the authorities of Serbia could not have been unaware of the grave risk of genocide once the VRS forces had decided to take possession of the Srebrenica enclave, and that in view of its influence over the events, the Respondent must be held to have had the means of action by which it could seek to prevent genocide, and manifestly refrained from employing them.
However, the Court found that the nexus between the wrongful act and the injury could not be considered established, as the Court was not able to conclude from the case as a whole and with a sufficient degree of certainty that the genocide at Srebrenica would in fact have been averted if the Respondent had acted in compliance with its legal obligations. Hence, the Court decided that financial compensation was not the appropriate form of reparation for the breach of the obligation to prevent genocide.
The Court found Bosnia and Herzegovina entitled to reparation in the form of satisfaction, in the form of a declaration in the present Judgment that Serbia failed to comply with the obligation imposed by the Convention to prevent the crime of genocide.
DISCUSSION
Of the various forms of reparation, compensation is perhaps the most commonly sought in international practice. In the Gabčíkovo-Nagymaros Project case, the Court declared: .[i]t is a well-established rule of international law that an injured State is entitled to obtain compensation from the State which has committed an internationally wrongful act for the damage caused by it..[3]
In order for damages to be awarded, there needs to be a causal nexus between the wrongful act and the damage. In the case at hand, the Court did not find there was a nexus between Serbia´s omission to prevent genocide, and the damage caused by the genocide in Srebrenica. The test used by the Court was that it could not be concluded from the case as a whole and with a sufficient degree of certainty that the genocide at Srebrenica would in fact have been averted if the Respondent had acted in compliance with its legal obligations.
The questions that arise from the use of this test are two: 1) Is a “sufficient degree of certainty” an adequate test to establish the causal nexus? 2) In case the genocide could not have been avoided, but partially mitigated, could Serbia be held partially liable for its omission?
Regarding the first question, it seems too demanding that the Court ask for certainty. Previous case law provided that in determining the causal link, the tests should be either “normality” or “predictability”. That is, whether the result can reasonably be traced to the wrongful act, or whether that result was foreseeable. The new test brought by the Court renders the possibility of establishing a nexus very slim.
Should the Court have used a normality test, it would have probably reached the conclusion that, having had Serbia a strong influence on the VRS and the government of RS, and should Serbia have acted to prevent the genocide, the effects of genocide would have been at least partially mitigated.
This leads to the second question. It could definitely be argued that Serbia´s omission partially contributed to the massacre in Srebrenica. The determination of the causal link may be complicated by the fact that damage was not caused only by Serbia´s wrongful act, but also by one or more other causes. [4]
It is evident obvious that some parts of the damage to Bosnia can be severable in causal terms from those attributed to the main acts of genocide. As stated in the Zafiro claim[5], the tribunal went further and in effect placed the onus on the responsible State to show what proportion of the damage was not attributable to its conduct.
This is a clear case where the omissions of Serbia, even if they could have not prevented the genocide, have helped to partially cause certain injuries to Bosnia. Serbia should have been held liable up to that standard, and it should have been to Serbia to prove the limits to it´s liability.
CONCLUSION
The Court tried to find a political way out of this case, awarding satisfactory measures in favor of Bosnia. However, it failed to rule consciously on the real issue, Serbia´s liability.
In trying to avoid a result favorable to Bosnia, the Court created a test which in most cases will prevent any causal nexus to be established. The certainty required will be a burden of proof unbearable for almost all claimants, and the lack of partial responsibility will prove to be a problem in future similar cases.
[1] Convention on the Prevention and Punishment of the Crime of Genocide, entered into force 12 January 1951
[2] Source: ICJ. “Case concerning the application of the Convention on the prevention and punishment of the Crime of Genocide” (Bosnia and Herzegovina v. Serbia and Montenegro), February 26th, 2007.
[3] Gabčíkovo-Nagymaros Project (Hungary/Slovakia), I.C.J. Reports 1997, p. 7, at p. 81, para. 152. See also the statement by the Permanent Court of International Justice in the Factory at Chorzów case, declaring that it is .a principle of international law that the reparation of a wrong may consist in an indemnity.: Factory at Chorzów, Merits, 1928, P.C.I.J., Series A No. 17, p. 27.
[4] ILC, “Draft Articles on Responsibility of States for Internationally Wrongful Acts with commentaries” – 2001, Commentary to art. 36, para 13.
[5] The Zafiro., UNRIAA, vol. VI, p. 160 (1925), at pp. 164-165.
