ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Thursday, July 5, 2007

ICJ: Serbia Responsible for Failing to Prevent Genocide; BiH Entitled to Reparations but Non-Monetary Ones

460. The principle governing the determination of reparation for an internationally wrongful
act is as stated by the Permanent Court of International Justice in the Factory at Chorzów case:
that “reparation must, so far as possible, wipe out all the consequences of the illegal act and
reestablish the situation which would, in all probability, have existed if that act had not been
committed” (P.C.I.J. Series A, No. 17, p. 47: see also Article 31 of the ILC’s Articles on State
Responsibility). In the circumstances of this case, as the Applicant recognizes, it is inappropriate to
ask the Court to find that the Respondent is under an obligation of restitutio in integrum. Insofar as
restitution is not possible, as the Court stated in the case of the Gabčíkovo-Nagymaros Project
(Hungary/Slovakia), “[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” (I.C.J. Reports 1997, p. 81, para. 152.; cf. Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports
2004, p. 198, paras. 152-153; see also Article 36 of the ILC’s Articles on State Responsibility). It
is therefore appropriate to consider what were the consequences of the failure of the Respondent to
comply with its obligations under the Genocide Convention to prevent and punish the crime of
genocide, committed in Bosnia and Herzegovina, and what damage can be said to have been
caused thereby.

461. The Court has found that the authorities of the Respondent 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 to have manifestly
refrained from employing them (paragraph 438). To that extent therefore it failed to comply with
its obligation of prevention under the Convention. The obligation to prevent the commission of the
crime of genocide is imposed by the Genocide Convention on any State party which, in a given
situation, has it in its power to contribute to restraining in any degree the commission of genocide.
To make this finding, the Court did not have to decide whether the acts of genocide committed at
Srebrenica would have occurred anyway even if the Respondent had done as it should have and
employed the means available to it. This is because, as explained above, the obligation to prevent
genocide places a State under a duty to act which is not dependent on the certainty that the action to
be taken will succeed in preventing the commission of acts of genocide, or even on the likelihood
of that outcome. It therefore does not follow from the Court’s reasoning above in finding a
violation by the Respondent of its obligation of prevention that the atrocious suffering caused by
the genocide committed at Srebrenica would not have occurred had the violation not taken place.
462. The Court cannot however leave it at that. Since it now has to rule on the claim for
reparation, it must ascertain whether, and to what extent, the injury asserted by the Applicant is the
consequence of wrongful conduct by the Respondent with the consequence that the Respondent
should be required to make reparation for it, in accordance with the principle of customary
international law stated above. In this context, the question just mentioned, whether the genocide
at Srebrenica would have taken place even if the Respondent had attempted to prevent it by
employing all means in its possession, becomes directly relevant, for the definition of the extent of
the obligation of reparation borne by the Respondent as a result of its wrongful conduct. The
question is whether there is a sufficiently direct and certain causal nexus between the wrongful act,
the Respondent’s breach of the obligation to prevent genocide, and the injury suffered by the
Applicant, consisting of all damage of any type, material or moral, caused by the acts of genocide.
Such a nexus could be considered established only if the Court were 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. However,
the Court clearly cannot do so. As noted above, the Respondent did have significant means of
influencing the Bosnian Serb military and political authorities which it could, and therefore should,
have employed in an attempt to prevent the atrocities, but it has not been shown that, in the specific
context of these events, those means would have sufficed to achieve the result which the
Respondent should have sought. Since the Court cannot therefore regard as proven a causal nexus
between the Respondent’s violation of its obligation of prevention and the damage resulting from
the genocide at Srebrenica, financial compensation is not the appropriate form of reparation for the
breach of the obligation to prevent genocide.
463. It is however clear that the Applicant is entitled to reparation in the form of satisfaction,
and this may take the most appropriate form, as the Applicant itself suggested, of a declaration in
the present Judgment that the Respondent has failed to comply with the obligation imposed by the
Convention to prevent the crime of genocide. As in the Corfu Channel (United Kingdom v.
Albania) case, the Court considers that a declaration of this kind is “in itself appropriate
satisfaction” (Merits, Judgment, I.C.J. Reports 1949, pp. 35, 36), and it will, as in that case, include
such a declaration in the operative clause of the present Judgment. The Applicant acknowledges
that this failure is no longer continuing, and accordingly has withdrawn the request made in the
Reply that the Court declare that the Respondent “has violated and is violating the Convention”
(emphasis added).
464. The Court now turns to the question of the appropriate reparation for the breach by the
Respondent of its obligation under the Convention to punish acts of genocide; in this respect, the
Applicant asserts the existence of a continuing breach, and therefore maintains (inter alia) its
request for a declaration in that sense. As noted above (paragraph 440), the Applicant includes
under this heading the failure “to transfer individuals accused of genocide or any other act
prohibited by the Convention to the International Criminal Tribunal for the former Yugoslavia and
to fully co-operate with this Tribunal”; and the Court has found that in that respect the Respondent
is indeed in breach of Article VI of the Convention (paragraph 449 above). A declaration to that
effect is therefore one appropriate form of satisfaction, in the same way as in relation to the breach
of the obligation to prevent genocide. However, the Applicant asks the Court in this respect to
decide more specifically that
“Serbia and Montenegro shall immediately take effective steps to ensure full
compliance with its obligation to punish acts of genocide under the Convention on the
Prevention and Punishment of the Crime of Genocide or any other act prohibited by
the Convention and to transfer individuals accused of genocide or any other act
prohibited by the Convention to the International Criminal Tribunal for the former
Yugoslavia and to fully co-operate with this Tribunal.”
465. It will be clear from the Court’s findings above on the question of the obligation to
punish under the Convention that it is satisfied that the Respondent has outstanding obligations as
regards the transfer to the ICTY of persons accused of genocide, in order to comply with its
obligations under Articles I and VI of the Genocide Convention, in particular in respect of
General Ratko Mladić (paragraph 448). The Court will therefore make a declaration in these terms
in the operative clause of the present Judgment, which will in its view constitute appropriate
466. In its final submissions, the Applicant also requests the Court to decide “that Serbia and
Montenegro shall provide specific guarantees and assurances that it will not repeat the wrongful
acts complained of, the form of which guarantees and assurances is to be determined by the Court”.
As presented, this submission relates to all the wrongful acts, i.e. breaches of the Genocide
Convention, attributed by the Applicant to the Respondent, thus including alleged breaches of the
Respondent’s obligation not itself to commit genocide, as well as the ancillary obligations under
the Convention concerning complicity, conspiracy and incitement. Insofar as the Court has not
upheld these claims, the submission falls. There remains however the question whether it is
appropriate to direct that the Respondent provide guarantees and assurances of non-repetition in
relation to the established breaches of the obligations to prevent and punish genocide. The Court
notes the reasons advanced by counsel for the Applicant at the hearings in support of the
submission, which relate for the most part to “recent events [which] cannot fail to cause concern as
to whether movements in Serbia and Montenegro calling for genocide have disappeared”. It
considers that these indications do not constitute sufficient grounds for requiring guarantees of
non-repetition. The Applicant also referred in this connection to the question of non-compliance
with provisional measures, but this matter has already been examined above (paragraphs 451 to
458), and will be mentioned further below. In the circumstances, the Court considers that the
declaration referred to in paragraph 465 above is sufficient as regards the Respondent’s continuing
duty of punishment, and therefore does not consider that this is a case in which a direction for
guarantees of non-repetition would be appropriate.
467. Finally, the Applicant has presented the following submission:
“That in failing to comply with the Orders for indication of provisional
measures rendered by the Court on 8 April 1993 and 13 September 1993 Serbia and
Montenegro has been in breach of its international obligations and is under an
obligation to Bosnia and Herzegovina to provide for the latter violation symbolic
compensation, the amount of which is to be determined by the Court.”
The provisional measures indicated by the Court’s Order of 8 April 1993, and reiterated by the
Order of 13 September 1993, were addressed specifically to the Respondent’s obligation “to
prevent commission of the crime of genocide” and to certain measures which should “in particular”
be taken to that end (I.C.J. Reports 1993, p. 24, para. 52 (A) (1) and (2)).
469. The Court has found above (paragraph 456) that, in respect of the massacres at
Srebrenica in July 1995, the Respondent failed to take measures which would have satisfied the
requirements of paragraphs 52 (A) (1) and (2) of the Court’s Order of 8 April 1993 (reaffirmed in
the Order of 13 September 1993). The Court however considers that, for purposes of reparation,
the Respondent’s non-compliance with the provisional measures ordered is an aspect of, or merges
with, its breaches of the substantive obligations of prevention and punishment laid upon it by the
Convention. The Court does not therefore find it appropriate to give effect to the Applicant’s
request for an order for symbolic compensation in this respect. The Court will however include in
the operative clause of the present Judgment, by way of satisfaction, a declaration that the
Respondent has failed to comply with the Court’s Orders indicating provisional measures.

ICJ in Bosnia and Herzegovina v. Serbia


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