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. Read the rest of this entry…