Applications for Revision of the International Court of Justice’s Judgments: The Curious “Case” for Revision of the Bosnian Genocide Judgment

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Last Thursday, the President of the International Court of Justice (ICJ) made a statement announcing that the Court was “not properly” seised of a request for revision of the Court’s merits Judgment of 26 February 2007 in the Bosnian Genocide Convention Case (Bosnia and Herzegovina v. Serbia). The key question was whether the request for revision should have been considered as one made by Bosnia and Herzegovina and this depended on whether the person who made the request was to be considered as Agent for Bosnia. In coming to its decision not to take any action with regard to the request for revision, the Court concluded “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 in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia)”.

In effect, the Court rejected the request for revision on the grounds that the person who claimed to be the Agent for Bosnia, Mr. Sakib Softić, had not in fact been appointed as Agent by the state for the purpose of these particular proceedings. Mr Softić had been appointed the Agent for Bosnia, in 2002, in the original Bosnian Genocide Convention case. The present controversy surrounding his authority arose from the nature of the Presidency of Bosnia – the Head of State – which is not a single individual but rather composed of 3 individuals: one Bosniac, one Serb and one Croat. As it emerged from separate letters written to the Court by each of the members of the Presidency, no decision was made by the Presidency to request revision and only the Bosniac member of the Presidency, Mr. Bakir Izetbegović, was of the view that the appointment of Mr Softić as Agent in the original case remained valid.

Whether the Court was right to reject the “request” for revision in this case depends on whether a request for revision is to be considered as a new case as opposed to a separate phase of a previous case. If a request for revision is simply a separate phase of a prior case – a form of incidental proceedings – then the authority of the previous Agent would extend to that new phase as Agents exercise their functions throughout a case, unless they are replaced by the state. However, if a request for revision is a new case the Court would be right to require a new indication from the state as to who the Agent is, thus impliedly confirming that the state has authorised the initiation of those new proceedings.

In my view, the Court was right to hold, if only implicitly, that requests for revision are new proceedings and not simply continuations of a previous case. There is a qualitative difference between a request for revision (or indeed interpretation) of a prior judgment arising from proceedings that have essentially concluded with the case removed from the Court’s list of pending cases, on the one hand, and the initiation of incidental proceedings (such as provisional measures for interim protection or making preliminary objections) in an on-going case, on the other hand. The initiation of incidental proceedings in an on-going case is no more than a question of litigation strategy in proceedings that would otherwise continue. The parties to the case are already locked into the litigation and the question is just one of how to conduct it. However, in the case of revision or interpretation of a merits judgment, the state in question faces the question of whether it wishes to resume litigation or not, in circumstances where it is not presently engaged in litigation. The taking of that step is far more significant, and it is only right to have substantive evidence that the person who claims to take this step on behalf of the state has indeed been authorised by the state to do so. The step being taken here is one which effects a new direction (even if a friendly one) in the relationship between the two states. Although a state may have chosen to litigate (or been dragged into litigation) with another state at one point, it should not lightly be assumed that it wishes to resume litigation many years after the case has essentially closed. It is worth recalling that requests for revision may be made up to 10 years after a judgment is given (Art. 61(5) of the Statute – the “Bosnian request” was made just a few days short of that 10 year deadline). In the case of requests for interpretation there is no time limit stipulated in Art. 60 of the Statute and such a request may be initiated many decades later (as happened in the Temple of Preah Vihear Case where the request was made nearly 50 years after the judgment was delivered).

Prior Practice With Regard to Requests for Revision of ICJ Judgments

In addition, the position that requests for revisions (and for interpretations of previous judgments) are different cases from the original proceedings is confirmed by the previous practice of the Court and of parties in proceedings for revision, as well as from the Rules of the Court.

There have not been many prior requests for revision of ICJ judgments. Prior to this year, only 3 applications for revisions of ICJ’s judgment had been filed in the entire history of the Court. One of those 3 was the application by Yugoslavia for revision of the Preliminary Objections Judgment in the Bosnian Genocide Convention Case. Amazingly, the 2017 “Bosnian request” for revision was the second request for revision made in February 2017, following on from Malaysia’s application (made on February 2) for revision of the Court’s May 2008 Judgment in the case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore).

In each of the previous cases where a request for revision or indeed for interpretation of a previous judgment of the Court has been made, the Court has entered these new proceedings as a separate case in its list of pending cases. In addition, in these previous requests for revision and for interpretation, the parties have also treated the proceedings as a new case. We know this because, in these cases, the parties have not treated their previous appointment of a person as an ad hoc judge as automatically continuing, but have made new decisions regarding the appointments of an ad hoc judge, even though in some cases they have appointed the same person (see for example para. 55 of Malaysia’s recently filed request for revision). If the parties and the Court had thought that the proceedings for revision and interpretation were simply another phase of the original case then the original appointment of ad hoc judges would simply have carried over. Unless those persons had resigned, the parties would not be entitled to change the appointment as there is no provision that allows a party to unilaterally remove an ad hoc judge that it has appointed and since the ad hoc judge is a member of the bench on equal terms as the permanent members.

Similarly, in the Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras), where the original case was heard by a chamber of the Court, a new chamber was formed to hear the application for revision. This was despite the fact that Art. 17(4) of the ICJ’s Rules provides that members of a Chamber shall continue to sit in all phases of a case, even after they have left the Court. Clearly this was not thought to be a new phase of the same case but rather a new case. Indeed Judge Oda who had been part of the original Chamber and who was still on the Court was not part of the new Chamber (for reasons explained in a Declaration appended to the Order forming the Chamber)

That requests for revision and interpretation of judgments are not merely incidental proceedings in on-going cases can also be seen from the fact that while Part III, Section D of the ICJ’s Rules deals with Incidental Proceedings (Interim Measures of Protection, Preliminary Objections, Counter Claims, Intervention etc), the procedure regarding requests for revision and interpretation are in a different section – Section F, subsection 2

Once it is accepted that the request for revision is a new case, then it does follow that the appointment by Bosnia of an agent back in 2002 in relation to the original case is insufficient to authorise that person to initiate revision proceedings.

Yet Another Case of Inconsistency in the ICJ Decisions Relating to the Former Yugoslavia?

The decision of last week is another in the series of ICJ cases arising out of the break-up of the former Yugoslavia. Most unfortunately, one of the defining features of that series was the remarkable inconsistency in the ICJ’s approach to the status of Serbia (formerly the Federal Republic of Yugoslavia). The decisions suggested that Serbia was both a party to the ICJ Statute that could be sued at the ICJ and not a party to the Statute and thus unable to bring a case in the same period of time (on which see these articles by Blum, p. 39 & (2009) 103 AJIL 264 and Fernando Lusa Bordin, (2011) 10 LPICT 315). David Scheffer, who was named as “Deputy Agent” in the “Bosnian Request” for revision, has pointed out, in a post on Just Security, that when Yugoslavia (Serbia) requested revision of the Preliminary Objections in the original case, Mr. Softić’s appointment as agent in the original case seemed to have been accepted as carrying over to the Yugoslav request for revision. Thus there is again the spectre of inconsistency by the ICJ, though this time in favour of Serbia.

Another possible hint of inconsistency by the ICJ relates to how it dealt with whether the collective Bosnian Presidency had made a decision to initiate a case at the ICJ. In fact, Yugoslavia argued in the original case that the proceedings had not been authorised by the Bosnian Presidency but only by the President of the Presidency, Mr. Alija Izetbegović (who incidentally is the father of the current Bosniac member of the Presidency and the only member to support the application for revision). On that occasion, the Court rejected the Yugoslav argument that Mr Izetbegović was not the Bosnian head of state because, according to the Court, he had received international recognition as the head of state (see Bosnia Genocide Preliminary Objections Judgment, para. 44 and also the Provisional Measures Order of 8 April 1993, para. 13). It thus held that the original proceedings had been properly initiated by Bosnia.

However, despite the apparent inconsistency pointed out by David Scheffer, there are arguably good reasons for the Court accepting Mr. Softić as Agent in the previous proceedings for revision of the Preliminary Objections judgment while rejecting him in that role in this case. The differences are that in the prior revision proceedings, the original case in respect of which Mr. Softić had a valid appointment as Agent was ongoing (indeed he was appointed as Agent for that case just a few weeks before the oral hearings in the revision proceedings commenced), and Bosnia was respondent in the revision proceedings. Although the revision proceedings constitute a different case, where the original proceedings are on-going the consideration outlined earlier about revision constituting a different direction in the relationship between the parties does not hold in the same way. Also, as Bosnia was respondent in that earlier revision proceedings it was reasonable to assume that Bosnia had appointed Mr. Softić as Agent for the purposes of the revision proceedings as well, since the Yugoslav application would have been delivered by the Court to Bosnia which then presumably instructed Mr. Softić. There was no opposition by Bosnian authorities to displace that presumption.

Thus any inconsistency between the earlier revisions proceedings brought by Serbia and the present one is apparent only. In the present “case” there would seem to be good reasons to consider, in 2002, one person as an Agent for the purposes of revision proceedings brought against the State, but not an Agent for the purposes of initiating revision proceedings fifteen years later.

 

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    Velimir Zivkovic says

    March 13, 2017

    Professor Akande, many thanks for bringing attention to this issue that has stirred the spirits in the Balkans in a most unfortunate way. Just another fact to be added, perhaps, is that it has come to light that tentative agent of Bosnia and Herzegovina, Mr. Softic, was already informed by the Court Registrar in March 2016 that his previous appointment would not suffice for any revision proceedings. While this also sheds further light on the political complexities in Bosnia (this information was withheld from the public until a few days ago), it also seems to indicate that the request was doomed to fail from the very beginning. Or it could have been a completely new episode of inconsistency, in which a form of a 'preliminary' decision on the issue could have been overturned later?

    Said says

    March 13, 2017

    Dear Dapo,

    I read your post this morning and the title of it reminded me of the 2008 article written by Marko and Vojin Dimitrijevic "The Strange Story of the Bosnian Genocide Case". I was a little bit surprised that it was you who reacted to this issue rather than Marko, but a couple of hours later Marko was compelled to react, as he puts it, by David Scheffer's writing on Just Security.

    You put forward sound arguments as to why the application for revision of a judgment should be seen as a new case. I think that an equally compelling case can be made for an argument that request for revision should be seen as part of the same proceedings, but that is not my point here.

    Albeit na important one as it precludes any further action by the Court, this was just one out of many procedural issues faced by the Court in the last more than 20 years since the initiation of the case. Talking about inconsistencies, I think and may be mistaken that it was Serbia that first claimed that the Court lacked jurisdiction for it to be sued, and then suing the NATO countries it invoked jurisdiction of that very same Court. I do agree with you that although states can be expected to be inconsistent in this regard depending on the nature of the case and Serbia has, I think, exercised all statuses afforded by the Court's Statute, i.e. that of an applicant, respondent and counter-applicant, international courts should be held to a higher standard.

    However, I would not fault ICJ so much for its inconsistencies since ICTY's inconsistencies had a more far-reaching effect, such as for instance Perisic's acquittal on what some commentators here on EJIL blog have excessively documented to have been a dubious legal standard of specific direction. In the judgment in that case, the Appeals Chamber noted that "the Trial Chamber found that bullets and shells recovered from crime sites in Sarajevo and Srebrenica were not proved beyond reasonable doubt to have originated from the VJ..."

    Similarly, the ICJ's most recent announcement which you quote at the beginning of your post about the lack of the decision "taken by the competent authorities on behalf of Bosnia and Herzegovina as a State" sounds a little bit cynical in line of the fact, which is very well known to the Court, that Bosnia's application has been opposed internally from day one of its submission. To save myself the trouble of responding to Marko's post as well, I will write here that writing about Bosnia and Herzegovina not being able to put its act together or suffering from multiple personality disorder is out of place since just about any act taken on the international scene by countries of ex-Yugoslavia is bound to suffer from the same flaws.

    Your post also reminded me of what one of the leading genocide scholars wrote back in 2007, namely that the ICJ's judgment "was really a setback for the Bosnian victims whose lawyers should have convinced the state to discontinue their case. They probably could have obtained useful political considerations from Belgrade in exchange, but they have now, obviously, lost that chance." A couple of years later, the very same scholar known for his conservative views on the application of the Genocide convention, acting as Serbia's counsel in Croatia vs. Serbia proceedings is noted on the record as having said: "... most genocides are arrested before they are fully carried out... But the intentional destruction of the Krajina Serbs stands as a tragic and barbaric example of a genocide where the sinister plan to destroy an ethnic group is now virtually complete. Nothing comparable... has taken place anywhere in Europe since 1945." William Schabas is his name.

    So, courts, judges and counsel tend to be inconsistent at times, at the expense of justice it would seem, though it should be said that most of the ICTY's and IJC's inconsistencies have worked in Serbia's favor on an essentially simple issue, as late Judge Cassese wrote, that of a high evidentiary standard for proving genocide. Now, there is one consistent guy, Judge Antonio Cassese.

    To end this already too long comment, I think that the revision should have proceeded to the merits stage since all the issues having to do with whether the mandade of Bosnia's agent was still valid or not are, I think, just technicalities and have nothing to do with the people on whose behalf the application had been originally filed. Although the 2007 judgment was arguably a signal of the court's leaning towards a closure on ex-Yugoslavia's violent history, with that fatigue becoming even more obvious in the Croatia vs. Serbia proceedings.

    Jordan Paust says

    March 13, 2017

    If you want insights into the early proceedings before the ICJ, contact the lead counsel for B-H, Francis Boyle at Illinois Universtiy. Two preliminary rounds were won but the six-person team from the US and Canada were later replaced. I put in over 90 hours w/o pay.

    Federica Paddeu says

    March 13, 2017

    Hi Dapo,

    Very interesting remarks as ever!
    Your reference to the 50 year gap between the temple case judgment and the request for interpretation got me thinking about questions of consent and jurisdiction. What is the jurisdictional basis of applications for revision and interpretation? Is it the same as the previous proceedings or is it a different (and potentially new) one?

    Say, hypothetically, that between the judgment and the initiation of the revision or interpretation proceedings the original basis for jurisdiction was no longer applicable (a modification or withdrawal of optional clause, a withdrawal from or new reservation to a compromissory clause), would the Court have jurisdiction?

    Mike Becker says

    March 13, 2017

    Hi Federica
    The situation you describe was in fact the situation in the Request for Interpretation in the Preah Vihear case. In the original case, jurisdiction was based on the optional clause. This no longer obtained in 2011 when Cambodia submitted the interpretation request, but it did not matter. The Court explained in the 2013 judgment that “jurisdiction on the basis of Article 60 of the Statute is not preconditioned by the existence of any other basis of jurisdiction as between the parties to the original case” and that “by virtue of Article 60 of the Statute, [the Court] may entertain a request for interpretation provided that there is a ‘dispute as to the meaning or scope’ of any judgment rendered by it”. (para 32). In other words, the jurisdictional basis of the original case -- that is, the original grant of consent to the jurisdiction of the Court -- lasts indefinitely when it comes to Article 60.
    The requirements for revision under Article 61 are different of course (the ten-year and six-month requirements; the discovery of a consequential and previously unknown fact, etc), but I don’t think the question of jurisdiction would be treated differently than under Article 60. When a State consents to the Court's jurisdiction under any of the modalities contemplated by Article 36, it is consenting as well to the possibility of interpretation and revision proceedings at some point during the post-adjudicative phase of a case.

    Federica Paddeu says

    March 13, 2017

    Hey Mike,

    Thanks for the info -- I really should have read the case before posting! Anyhow, if that is the case, where does it leave revision/interpretation proceedings: are they new or incidental? If the jurisdictional basis is the same -- regardless of changes subsequent to the initiation of proceedings -- wouldn't this support the view that they are incidental contrary to Dapo's conclusion above?

    Federica

    Dapo Akande says

    March 14, 2017

    Dear all,

    Many thanks for the useful comments

    Federica, your question about the jurisdictional basis for revision/interpretation proceedings is a very good one and thanks to Mike for his answer with which I largely agree. I say "largely" agree because I would put it slightly differently when interpreting what the Court said in the Request for Interpretation in the Preah Vihear case . It is not so much (as Mike says) that the jurisdictional basis of the original case lasts indefinitely when it comes to revision and interpretation proceedings. Rather, these are some of the very few instances where it is consent to the Statute itself, rather than a further consent provided in Art. 36 of the Statute, that gives the Court jurisdiction. Of course in the case of a merits judgment there would be no judgment to be revised or interpreted without a finding by the Court of jurisdiction and thus no revision/interpretation without consent of the parties to the original case.

    However, the fact that there can a request for revision or interpretation of a preliminary objections judgment (as happened in the Bosnian Genocide Convention and in the Land and Maritime Boundary(Cameroon/Nigeria) cases shows that is not the consent to the original case that is the basis for jurisdiction in revision/interpretation proceedings. In both of those cases just mentioned, the Court had indeed found that it had jurisdiction. However, one can easily imagine requests for revision/interpretation even in cases where the Court had rejected jurisdiction in the original case. In such an instance, the Court would have jurisdiction over the revision/interpretation proceedings, on the basis of the Statute, and despite it being established that there is no consent to the original case.

    So, in my view, the jurisdictional basis for revision/interpretation proceedings is not the same as that for the original case. And I would still take this view even if it were not possible to have revision/interpretation proceedings for preliminary objections judgments but only for merits judgments.

    By the way, the other instances where the Court will have jurisdiction on the basis of the Statute itself are: (i) provisional measures proceedings where it is only required that it appear prima facie that the Court has jurisdiction, and where the measures are binding even though the respondent contests jurisdiction and it not having been established that the respondent has contested; and, arguably, (ii) advisory proceedings where the Eastern Carelia rule, regarding the Court not providing an opinion that would require it to pronounce on the rights/obligation of states are implicated, is in play.

    Mike Becker says

    March 14, 2017

    I think Dapo’s conclusion is correct. As a matter of practice, it is clear that the Court has treated revision and interpretation requests as “new” cases in a formal sense. Such matters appear separately from the original case on the General List, there are new appointments of judges ad hoc, etc. This is the case, regardless of the specialized jurisdictional regime that applies to revision and interpretation (which prevents one party from taking unilateral action to deprive the other of the opportunity to seek interpretation or revision). I agree, however, that the functional rationale for treating such requests as new cases, rather than as proceedings encompassed by the original case, is not very clear.

    Federica Paddeu says

    March 17, 2017

    Mike, Dapo, thanks for your responses! A very interesting issue indeed.