Bosniak Member of the BiH Presidency asks the ICJ to reconsider the Serbia Genocide Case

“It’s like déjà vu all over again.”1 Perhaps the most memorable and exquisite quote of American professional baseball player, manager, coach, and Hall of Famer, Yogi Berra.

On 23 February 2017, it was reported that “Bosnia” filed a formal request with the International Court of Justice (“ICJ”) to reconsider its 2007 decision in the Serbia Genocide case, in which it found that Serbia had neither been involved in nor committed genocide. The ICJ did however find, curiously, that Serbia “violated the obligation to prevent genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred in Srebrenica.”2 International Court of Justice (“ICJ”), Case Concerning Application of The Convention on the Prevention and Punishment of The Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro, Judgment, 26 February 2007, para. 471.

Bakir Izetbegović

Bosnia and Herzegovina (“BiH”), the actual name of the country, did not file for reconsideration.  What was submitted to the ICJ – which has yet to be made public3Last checked 7 March 2017, the ICJ public record does not show the application filed on the 23rd of February 2017. – was a unilateral request by one of the three members of the BiH Presidency, Bakir Izetbegović (the son of Alija Izetbegović), currently serving as the Bosniak member of the Presidency of BiH.

Some facts may be useful to understand why this request indubitably is a political ploy, a publicity stunt, not a legitimate request that merits consideration by the ICJ.

The BiH Constitution, hammered out during the Dayton peace negotiations and affixed to the 1995 Dayton Accords (which is why the BiH Constitution is so difficult to amend), recognizes the rights of all three constituent nations4Dayton Peace Agreement documents (“Dayton Accords”) initiated in Dayton, Ohio on 21 November 1995 and signed in Paris on 14 December 1995, Annex 4, Constitution of Bosnia and Herzegovina, Preamble (hereinafter, “BiH Constitution”). – Bosniaks (formally and officially known as Muslims),5 The 1968 Constitution of the Socialist Federal Republic of Yugoslavia recognized “Muslim” as one of the constituent nations in the whole of Yugoslavia. Serbs, and Croats.  To ensure that all constituent nations would have their rights guaranteed and would have, to the extent possible, equal sharing in the governance of BiH at the state level, the highest governing institution, the Presidency, is composed of three members, with one of them serving as the Chair of the Presidency on a rotating basis.6 BiH Constitution, Art. V: “The Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska”; Art. V(2)(b): “The Members of the Presidency shall appoint from their Members a Chair. For the first term of the Presidency, the Chair shall be the Member who received the highest number of votes. Thereafter, the method of selecting the Chair, by rotation or otherwise, shall be determined by the Parliamentary Assembly” (unofficial translation).

All decisions concerning state matters are to be collective.7 BiH Constitution, Art. V: “The Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska”; Art. V(2)(b): “The Members of the Presidency shall appoint from their Members a Chair. For the first term of the Presidency, the Chair shall be the Member who received the highest number of votes. Thereafter, the method of selecting the Chair, by rotation or otherwise, shall be determined by the Parliamentary Assembly” (unofficial translation). No member of the Presidency, not even the primus inter pares Chair of the Presidency, can take unilateral decisions. Axiomatically, this would include making an application to the ICJ on behalf of BiH.  Yet, by all accounts, a unilateral application is exactly what was done in this instance. Izetbegović, without consultation, without authorization, and without a collective decision by the Presidency, submitted his application to the ICJ.

It’s like déjà vu all over again because this behavior is reminiscent of how his father behaved when he was President of the Presidency during the war – a position which he refused to relinquish for spurious and, in my opinion, unconstitutional reasons.8 According to Article 19 of the Rules of Procedure for the Presidency of the Socialist Republic of Bosnia and Hercegovina, 23 December 1991, the position the President of the Presidency called for a one-year term which could be extended for one additional year upon election by the members of the Presidency. Alija Izetbegović stayed in this position from 1992 until 1996, and then stayed in office as the Chairman of the Presidency of the BiH until 1998. But this is not the time to re-litigate the war period.  No doubt there are opinions to the contrary, and for this post – or, more precisely, for the legitimacy of Izetbegović’s request to the ICJ – revisiting the war period is not relevant. What is relevant is that this unilateral act by Izetbegović calls into question his motives.

Perhaps I can shed some light, though I concede that my take embraces speculation grounded in my post-Dayton work in BiH,9 From 1999 to 2001, I served as the Chairman of the Brčko Law Revision Commission (“BLRC”) of the Office of the High Representative-North. For more see Office of High Representative, Brčko Law Revision Commission Chairman’s Final Report, 31 December 2001. from following the political on-goings in BiH for the past 18 years, and from my knowledge of the judicial facts found in the cases that have been tried at the International Criminal Tribunal for the former Yugoslavia (“ICTY”) where the issue of genocide in BiH has been charged.

It is not disputed that a party can seek reconsideration of an ICJ decision within ten years of that decision having been issued.10 United Nations, Statute of the International Court of Justice, 18 April 1946, Art. 61(5). However, there is a caveat, a big caveat.  Much like the standard of seeking reconsideration at the ICTY (which is virtually identical to the standard applied in all other international(ized) tribunals and courts),11 See Statute of the International Criminal Tribunal for the former Yugoslavia, Art. 26: “Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Tribunal an application for review of the judgement.” The Statute of the International Criminal Tribunal for Rwanda, Article 25, and the Statute of the Special Tribunal for Lebanon, Article 27, contain identical language.  In a request for review, the party must show that: (1) there is a new fact; (2) the new fact was not known to the moving party at the time of the original proceedings; (3) the lack of discovery of that new fact was not the result of a lack of due diligence by the moving party; and (4) the new fact could have been a decisive factor in reaching the original decision. See Prosecutor v. Naletilić, IT-98-34-R, Decision on Mladen Naletilić’s Request for Review, 19 March 2009, para. 10; Prosecutor v. Blaškić, IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006, para. 7. The jurisprudence of the International Criminal Court sets out similar criteria: the existence of a new fact, which could have been decisive factor in the original decision, which was not known to the parties, and this lack of knowledge was not due to any lack of diligence. See Prosecutor v. Bemba et al., ICC-01/05-01/13, Decision on Request in Response to Two Austrian Decisions, 14 July 2016, paras. 23-26; Prosecutor v. Kenyatta, ICC-01/09-02/11-863, Decision on the Prosecution’s Motion for Reconsideration of the Decision Excusing Mr Kenyatta from Continuous Presence at Trial, 26 November 2013, para. 11; Prosecutor v. Ruto & Sang, ICC-01/09-01/11-511, Decision on the Request to Present Views and Concerns of Victims on their Legal Representation at the Trial Phase, 14 December 2012, para. 6. a certain criterion must be met: newly discovered evidence.

Article 61(1) of the ICJ Statute is clear:

An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence.

Indeed, in emphasizing the need to proffer newly discovered evidence which was not known or available despite exercising due diligence, Article 61(2) provides:

The proceedings for revision shall be opened by a judgment of the Court expressly recording the existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and declaring the application admissible on this ground.

And to ensure timeliness, Articles 61(4) and (5) set out two other criteria:

The application for revision must be made at latest within six months of the discovery of the new fact.

No application for revision may be made after the lapse of ten years from the date of the judgment.

So, setting aside the illegitimate act by Izetbegović in acting outside the BiH Constitution and the norms that prescribe his functions as member of the Presidency, what new facts has he encountered in the past six months that were not available or were unknown despite his being (presumably, if not affirmatively) diligent?  NONE.

If there were new facts meriting reconsideration, why not mention them to the other members of the Presidency? If indeed something was unearthed at the ICTY or at the BiH courts or any other court, then surely Izetbegović – as well as others – would know of it. And certainly, any such new fact would have been paraded before the press and through every social media outlet.

Rather than serve up any newly discovered evidence, Izetbegović serves emotive drivel as if that were sufficient to trump the strict wording of Article 61 of the ICJ Statute.  In his own words, Izetbegović provides the reasoning for his unilateral request for reconsideration of the ICJ’s decision on the Serbia Genocide Case:

I have been accused of causing a crisis, but it’s caused by those who have committed aggression, crimes, rehabilitated war criminals. The review was launched with the aim of establishing the truth.12 Eleanor Rose, Bosnia Requests Appeal in Serbia Genocide Case, Balkan Insight, 23 February 2017.

As unsatisfying or unfair as the ICJ decision may seem to Izetbegović (and to others, no doubt), his reasoning is wanting.  Hard to imagine that his legal team was unaware of the criteria set out by Article 61, considering that the review – as he put it – was made within the ten-year limitation period set out by Article 61(5).

Republika Srpska

So, then what could be the real motive behind this initiative?  The only explanation that springs to mind is that this is a political ploy.  As punditry goes, were the ICJ to find that Serbia committed or was responsible for the commission of genocide in BiH, then the argument can be made to the international community to dismantle the Republika Srpska (“RS”) – the Serb Entity.13 BiH is composed of two entities, the Federation of Bosnia and Herzegovina (“Federation of BiH”) and the Republika Srpska (“RS”) (See Art. 3 of the BiH Constitution), and a self-governing administrative unit and condominium – the Brčko District of Bosnia and Herzegovina. During the Dayton peace negotiations, it was agreed that the issue of Brčko would be resolved through arbitration. The Brčko Arbitral Tribunal for Dispute Over the Inter-Entity Boundary in the Brčko Area issued the Final Award, establishing the Brčko area as an autonomous district deriving its power by virtue of the two entities, the RS and the Federation of BiH, holding the entire Brčko area simultaneously in “condominium,” and having delegated all of their powers of governance directly to this newly established institution to be known as The Brčko District of Bosnia and Herzegovina. See Brčko Arbitral Tribunal for Dispute Over the Inter-Entity Boundary in the Brčko Area, Final Award, 5 March 1999. The theory would be that the RS – the offspring of this genocide – would have to be undone – at least in its present form, and, assuredly, so the name Republika Srpska would go.

It is no secret that the establishment of the RS was viewed as an affront by Alija Izetbegović, who represented the Bosniaks at Dayton and signed the Dayton Accords.  It is also no secret that the RS, consistent with the powers conferred upon it (and the Federation) by the BiH Constitution, has been rather independent (some may say pushing the envelope) in running its affairs, much to the consternation of Bosniak leadership at the state level.

Suffice it to say, whatever Izetbegović’s motives and however estimable he may think them to be, in filing the application for review before the ICJ, he was not acting on behalf of the BiH. From remarks (since we have yet to see what was filed), he does not seem to have any new evidence that would meet the strict criteria of Article 61.

I may be wrong.  Time will tell.

Share

Footnotes   [ + ]

Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

2 thoughts on “Bosniak Member of the BiH Presidency asks the ICJ to reconsider the Serbia Genocide Case”

  1. Thanks for that interesting post , thinks look pretty clear here ( in general ) yet :

    You state in the post that : ” all decisions concerning state matters are to be collective ” and this is the basis for the Illegitimate move or review at the ICJ ( not in collective manner taken or put or decided ) . But , you don’t explain , why such review is a state matter at first place . This is because , it may look , as if , it is not current issue has to do with ruling or managing a state or public affairs , but rather , a narrative or historical issue . So , do you have any clarification in this regard ??

    And : It is really hard to understand that article in the ICJ statute (Article 61 ) this is because , it is pretty common , in every judiciary or international law or tribunal , that a review may be granted not only on the ground of new facts or evidences , but also ,on the ground of clear mistake of law .Here for example the Statute of the International Tribunal for the Former Yugoslavia indeed, and there article 25 dictates so :

    Appellate proceedings

    1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds:
    (a) an error on a question of law invalidating the decision; or
    (b) an error of fact which has occasioned a miscarriage of justice.

    End of quotation :

    So , we read : question of law , and facts . Even in the ICJ statute, article 53 one may read as follows:

    Article 53

    1. Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim.

    2. The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law.

    End of quoatation :

    So , The lawmaker was aware of those two dimensions : law , and facts . It may look very inappropriate and in violation of due process even or fundamental justice making principles .

    Thanks

Leave a Reply

Your email address will not be published. Required fields are marked *