Some Realities Behind the Application for Revision Concerning Bosnia and Herzegovina v. Serbia

The International Court of Justice (ICJ) yesterday rejected an Application for Revision of the court’s judgment of February 26, 2007, that would reopen one of the most important cases about genocide in Bosnia and Herzegovina during the war of the early 1990s. A March 9 letter by the ICJ Registrar, Mr. Philippe Couvreur, and a corresponding statement by ICJ President Ronny Abraham are both shallow exercises that fail to explain the legal reasoning of their conclusions.  In the absence of such reasoning, there likely will be misunderstandings and a great deal of misinformation about what actually occurred in this most important case about genocide in the former Yugoslav republics, officially known as the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia).

I want to examine what has transpired procedurally before the ICJ, as that is the critical issue of the day, before stepping back and painting the larger picture of what prompted Bosnian representatives to pursue the application to reopen the case.

The Application for Revision was delivered to the ICJ Registrar at the Peace Palace in The Hague on February 23, 2017.  The Agent of Bosnia and Herzegovina handing over the Application for Revision was Sakib Softić, who was appointed as Agent on October 4, 2002, by decision of the three-member Presidency of Bosnia and Herzegovina at that time.  On November 4, 2002, when oral pleadings concerning Serbia’s own request for revision began at the ICJ, the Court, without any hesitation, treated Mr. Softić as the Agent of Bosnia and Herzegovina with respect to the revision requested by Serbia. Mr. Softić’s original appointment for the underlying case stood firm, he represented Bosnia and Herzegovina during the revision proceedings, and there was no suggestion that if Mr. Softić filed an application for revision in the underlying case that his appointment would require any new decision by the Presidency of Bosnia and Herzegovina.

In other words, the Court accepted the Presidency Decision of October 4, 2002, as also covering the Application for Revision submitted by Serbia. Serbia did not raise any objection.  From the perspective of the Bosnian Constitution and the Rules of Procedure of the Presidency of Bosnia and Herzegovina, the acting of Mr. Softić in those revision proceedings was perfectly in order.  From that same perspective, there is no reason why this would not be true for Mr. Softić acting as the Agent of Bosnia and Herzegovina now that Bosnia and Herzegovina is the party seeking the revision. The ICJ Registrar was reminded of this critical precedent during discussions on February 23, 2017, and in further communications with the Court.  The strength of this precedent may be why the ICJ President did not explicitly reference the appointment issue in the conclusion of his statement on March 9.

Granted, there were communications between Mr. Softić and the ICJ Registrar in May 2016 in which the ICJ Registrar stated his view that Mr. Softić would have to be appointed anew for purposes of an application for revision.  We sincerely believed that the Registrar’s stipulation was not grounded in the ICJ Statute or Rules or even necessarily its practice.  Indeed, the ICJ President stresses a different point in his March 9, 2017, statement when he reports that the Court considered that the content of all of the communications with the Court through March 2, 2017, “demonstrates that no decision has been taken by the competent authorities, on behalf of Bosnia and Herzegovina as a State, to request the revision of the Judgment of 26 February 2007…”  That articulates a rather different point: the absence of a government decision to file the Application for Revision.  Thus, there is no reported decision by the ICJ on the sufficiency of Mr. Softic’s appointment as Agent.  The judges avoided publicly deciding that issue, likely because of the novelty of this particular issue for the Court to address under its Statute, Rules, and practice, and because it should require extensive briefing on Bosnian law (the summary of which President Bakir Izetbegović provided in his letter of March 2).  Thus, they backed off of the agency issue and decided instead to stress the absence of a new substantive decision by “competent authorities” to file the Application for Revision.   

Last summer we purposely did not respond to the ICJ Registrar’s views on the agency issue because of a different perspective and because this should be a matter for the Court itself, namely the judges of the Court, to determine at the appropriate time.  The prospect of an actual filing of the Application for Revision was entirely speculative at that time.  We certainly were not going to consider the Registrar’s views as dispositive of the matter, thus extinguishing any further work on the Application for Revision.  The Agent had made no decision to file the Application for Revision and would not do so until about nine months later.   The plan was clear: Legal issues relating to the Agent’s appointment would be properly addressed if and when the Court requested clarification in the context of a submitted Application for Revision.   At that point, the legal arguments supporting the Agent’s appointment would be advanced, as they in fact were on February 23, 24, and March 2.

In his letter of February 24, 2017, the ICJ Registrar noted the position of Mr. Softić’s delegation, which included myself as Deputy Agent, that his “appointment as Agent in the original case by the Presidency of Bosnia and Herzegovina on 4 October 2002 was intended to cover any related case in the future and that no new letter of appointment was therefore needed.”  Mr. Softić reiterated this position in an explanatory letter to the ICJ Registrar that was also supported by a letter from President Izetbegović.  The ICJ Registrar then asked for the “Presidency of Bosnia and Herzegovina to kindly provide clarification on the matter at its earliest convenience.”  This was the first communication received by the Presidency from the ICJ Registrar on the matter and nowhere in that letter was there any reference to last summer’s communication with Mr. Softić.  President Izetbegović viewed the request in the letter as an opportunity to explain the legal basis under Bosnian law for Mr. Softić’s continued appointment.

In reality, given the composition of the three-member Presidency, the ICJ Registar’s request resulted in three separate response letters, one from each Member of the Presidency.  These response letters have not been made public by the ICJ.  But I can summarize President Izetbegović’s letter as precisely setting forth the legal basis under the Bosnian Constitution and the Rules of Procedure of the Presidency of Bosnia, as well as other Bosnian law and regulations, that confirm the continuing appointment of Mr. Softić as the Agent in all proceedings before the ICJ connected with and related to the underlying case of Bosnia and Herzegovina v. Serbia.  President Izetbegović also reminded the ICJ Registrar that any prior communications by Bosnian Serb officials, namely President Mladen Ivanić and Minister of Foreign Affairs Igor Crnadak, to the Registrar do not represent the official position of the Presidency of Bosnia.

A key point that may lurk behind the ICJ President’s statement on March 9, in which the agency issue is missing from the conclusion, is that, as I understand it, not only are collective decisions by the Presidency of Bosnia required for affirmative decisions to be made, collective decisions also are required to reverse prior decisions.  There has been no such decision by the Presidency to revoke Mr. Softić’s October 4, 2002, appointment as Agent.  Therefore, the legal argument is that in the absence of any such decision of revocation, Mr. Softić’s appointment remains valid.  That being said, it remains mysterious why the ICJ would require proof of a governmental decision to file the Application of Revision when the Agent has the authority to file throughout the life of the proceedings of a case without having to present evidence of fresh government decisions approving his each and every filing.  Indeed, the only document normally required of a government is the original appointment of the Agent to represent the country before the ICJ in the case (which Mr. Softic presented in 2002), and not proof of internal governmental decisions about the proceedings in the case itself.

It would have been far better procedure for the ICJ to have requested that the purported requirement of a fresh governmental decision on the filing of any application for revision be argued on its merits before the Court as part of proceedings to determine whether this particular Application for Revision is admissible for adjudication by the Court.  The admissibility hearing also would have considered arguments about whether the Application for Revision complied with Article 61 of the Statute of the ICJ to present “some fact of such a nature as to be a decisive factor” within the time limits required of an application for revision.  If relevant, the Court could have asked the three Presidents of Bosnia to appear at the hearing to present their respective views on the issue of the Agent’s appointment under Bosnian law.  The Court then could have deliberated and delivered a decision explaining its legal reasoning on the issues of whether a new decision by the government on the filing of the Application for Revision is required, on the appointment of the Agent if that remained relevant, and on admissibility.

Instead, the ICJ President’s statement of March 9, 2017, only gives weight to the Bosnian Serb position that there is no collective decision by the “competent authorities,” namely three-member Presidency, to initiate the Application for Revision and therefore it must be rejected by the Court.  The absence of such a decision by the collective Presidency is self-evident because the Bosnian Serb president would never agree to approve of the filing of the Application for Revision, which challenges the genocide denial pervasive among Bosnian Serb leaders.  The issue that the ICJ should have considered more carefully and transparently is what is required under Bosnian law for appointment of the Agent in the case and whether that appointment, under Bosnian law, extends to cover the Application for Revision of the underlying case submitted on February 23, 2017.

It may be that the ICJ is stuck on a view that the Application for Revision is an entirely new and different case, requiring fresh proof of the Agent’s appointment or, it seems, of a government decision to file the Application for Revision.  But there is no persuasive authority for that view regarding an Application for Revision in the ICJ Statute, Rules, or, we argue, practice.  The law and practice on this matter should have been fully briefed and argued before the Court by the Parties to the underlying case, and the ICJ should have requested such engagement by the Parties rather than reach a seemingly arbitrary decision that raises more questions than it does answers.

The tragedy of what has transpired in recent days is compounded by the stark reality that the truth of what happened in Bosnia and Herzegovina during 1992, when hundreds of thousands of Bosnian Muslims and Croats were routed from vast expanses of Bosnian territory, and thousands murdered, by ethnic Serb militia, assisted by the State of Serbia, can at last be told.  That is because evidence of the crime of genocide against the Muslims, used as the most powerful weapon to achieve the objective of ethnic cleansing, has been presented to the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the trial of Bosnian Serb General Ratko Mladić. Following closing arguments last December, where the totality of evidence in the case was finally disclosed, Mladić’s fate now lies before the ICTY judges.

But the Mladić case also presents a fresh opportunity for the ICJ to examine the role of Serbia in stoking the atrocities of 1992.  Ten years ago the ICJ ruled, in Bosnia and Herzegovina v. Serbia, that Serbia violated its obligations under the Genocide Convention when it failed to prevent the genocide in Srebrenica in 1995 and failed to punish Mladić for that crime as he hid somewhere in Serbia.

The ICJ, while deciding that acts of genocide had occurred during the 1992 campaign commanded by Mladić, did not find anyone with the requisite genocidal intent, or dolus specialis, to destroy all or part of the Muslim population in 1992.  By 2007 the ICTY had not found guilty any such master of genocide for the 1992 crimes.  Rather, Bosnian Serbs had been (and thereafter would continue to be) convicted of crimes against humanity and war crimes, but not genocide for that period in Bosnia’s tragedy.

In 2006 the long anticipated ICTY judgment of Slobodon Milošević, the Serbian president who was indicted for genocide in Bosnia during 1992, as well as many other crimes, was aborted shortly before its scheduled delivery due to his sudden death. So the ICTY’s view of what transpired in connection with Milošević was never revealed.   Mladić and the Bosnian Serb president, Radovan Karadžić, had been indicted in 1995 for the same genocide, but each remained at large and prospects of arresting them appeared very dim.

The ICJ understandably might have viewed the case brought by Bosnia against Serbia as reaching a realistic decision point by 2007.  The ICJ judges concluded that not enough evidence had appeared to pin genocidal intent on anyone for the crimes of 1992.  The ICJ judges could have deferred their decision until such time as Mladić and Karadžić were arrested, tried, and judgment reached as to their guilt or innocence on the charge of genocide in 1992.  But that did not occur.

Karadžić was arrested in Belgrade in July 2008 and tried and convicted for crimes against humanity and war crimes by the ICTY Trial Chamber almost a year ago, a case that is now on appeal to decide genocide during 1992.  Mladić was arrested in Lazarevo, Serbia, in May 2011 and his trial before the ICTY ended in December 2016.  The Mladić case, replete with charges of genocide, alone produced 9,914 exhibits of evidence, most of which are publicly available alongside a trial record of several years, all of which is open to scrutiny.  The multi-year Karadžić case saw 11,481 exhibits introduced.

Only a fraction of these exhibits were before the ICJ in 2007 when it examined genocidal intent behind the ethnic cleansing of 1992.  Indeed, there have been 21 cases at the ICTY since the ICJ’s judgment.   The totality of evidence from those cases (79,491 exhibits), brought to a head in the Mladić case, compelled the preparation and submission of the Application for Revision of the original finding.

The Application for Revision met the conditions for filing such a document  before the ICJ within ten years of the original judgment and within six months of the discovery of a new fact of decisive character:  The totality of evidence in the Mladić case on genocide reached its climax during last December’s closing arguments.  That is how facts about genocide ultimately are proven.

Serbia’s failure to track down and arrest Mladić and Karadžić while the ICJ deliberated the case long ago deprived the court of critical evidence, which may have been Belgrade’s intent all along.  The further delay in arresting each indicted fugitive as they enjoyed sanctuary in Serbia deprived the ICJ, within the ten year deadline, of final judgment by the ICTY of their genocidal intent as these men orchestrated a vicious campaign of death and destruction aimed particularly at Bosnia’s Muslim population in 1992.

Serbia’s failure to arrest Mladić and Karadžić until long after the ICJ’s judgment in the Bosnian case need not derail a review of that decision.  The evidence is now available, in its totality, to establish genocidal intent in 1992.  Serbia’s role in assisting the Bosnian Serbs during that period is already known to the ICJ but much more evidence of such cooperation has cascaded forth since 2007.

The ICTY will soon decide the guilt or innocence of Mladić and Karadžić on charges of genocide during 1992.  The Application for Revision was prepared to give the ICJ a much-needed opportunity to review the totality of evidence in order to determine, first, whether genocide occurred in 1992 and, second, Serbia’s responsibility under the Genocide Convention.  History will not look kindly on the ICJ’s decision to reject the Application for Revision.

David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law and Director of the Center for International Human Rights at Northwestern University Pritzker School of Law.  He was Deputy Agent for Bosnia and Herzegovina in the Application for Revision. 

About the Author(s)

Ambassador David Scheffer

Mayer Brown/Robert A. Helman Professor of Law at Northwestern Pritzker School of Law, Director of the Center for International Human Rights at Northwestern University Pritzker School of Law, Former U.S. Ambassador at Large for War Crimes Issues (1997-2001)