The Strangest ICJ Case Got Even Stranger, Or the Revision That Wasn’t

As Dapo explains in his post from this morning, the President of the International Court of Justice last week sent what was probably one of the weirdest letters to a government (and one of the weirdest related press releases) in its history, and it is only appropriate that it pertains to one of the Court’s strangest cases. The Court essentially dismissed in limine an attempt to make an application to institute proceedings for the revision of the 2007 Bosnian Genocide judgment, finding that the application was not made by an authorized state representative.

In a 2008 article, the late Vojin Dimtrijevic and I wrote about the strange story of the Bosnian Genocide case, a case which was more than any other, from its very beginning, subservient to its political context. It was a case pursued by a changing applicant against a changing respondent before a changing Court. It was a case which one part of the applicant state actively tried to subvert, which all segments of the political elite constantly miscast and misinterpreted, which witnessed some truly unprecedented procedural manoeuvres, and which was indeed from the Bosnian side not even funded from the state budget. So many hopes were pinned on it, that when the ultimately completely predictable and underwhelming, jurisdictionally severely constrained judgment was handed down, it was perceived by most Bosniaks as a massive disappointment and by most Serbs as a kind of exoneration, despite the finding of a violation of Article 1 of the Genocide Convention by Serbia. Today, after the Court’s swift termination of the revision application and the lapse of the time-limits for any further application, the case has gone away with finality, if only with a whimper.

Over on Just Security, David Scheffer, the ranking international expert in the revision team appointed by the Bosniak leader, Mr Izetbegovic, purports to explain to an equally expert audience ‘some realities’ behind the revision request. In so doing, he calls the President’s letter and a previous letter by the Registrar ‘shallow exercises that fail to explain the legal reasoning of their conclusions,’ and concludes that ‘History will not look kindly on the ICJ’s decision to reject the Application for Revision.’

Oh, please; history, humbug. History really won’t care one whit about this whole episode, which after a few days even the Bosnian and Serbian media won’t be writing about. And while I myself normally wouldn’t write critical comments about cases which I litigated and lost, or engage in debates with people who conversely think that it is sensible to do so, this kind of self-righteous, pontificating pooh-poohing of the ICJ is something I feel compelled to respond to. Here are, to quote Mr Scheffer, some (very hard) realities about this whole episode.

First, Mr Scheffer points to a supposedly intolerable inconsistency in the Court’s approach, because it treated Mr Softic as Bosnia’s agent without specific further appointment with regard to the revision request that Serbia had made in 2001, in which it (unsuccessfully) asked the Court to reconsider its 1996 judgment finding that it had jurisdiction in the Bosnian Genocide case. To that one could simply say that back then the main, merits proceedings were still ongoing and that no Bosnian official at the time indicated to the Court that upon his appointment in the main case Mr Softic should not be considered the Bosnian agent in the (previously already instituted) ancillary revision proceedings. Today, on the other hand, the final merits judgment was handed down 10 years ago, and the Court was bombarded by letters from various Bosnian officials (including the Serb member of the presidency and the foreign minister) telling the Court that Mr Softic was not duly representing the state.

Second, Mr Scheffer doesn’t mention a similarly fraught episode during the main case, when in 1999 the then Bosnian Serb chair of the Presidency appointed a co-agent who went on to request a discontinuance of the case, a request which the Court rejected by finding that Bosnia had not unequivocally demonstrated its will to discontinue the case (see p. 74). Here, similarly, the Court simply wanted to know what the state actually wanted to do – that the Bosnian state can’t get its act together due to internal politics is frankly not the Court’s problem, nor should it be.

Third, the Court was perfectly aware that if it allowed the revision case to proceed now, the case actually had zero prospects for success. When I say zero, I don’t mean just low or unlikely, but a zero ‘unless a majority of the judges had a seizure’ kind of zero. Even leaving aside the question of time limits for the discovery of new facts (which Serbia definitely wouldn’t have left aside), and even assuming that the Court would have been willing to adopt some kind of ‘creative’ approach to this problem (which it most likely wouldn’t have been), there simply was no clear and convincing new evidence that wasn’t available in 2007 to the effect that genocide was committed in Bosnia in 1992 (i.e. in parts of Bosnia other than Srebrenica), no matter how ‘creative’ the revision legal team was. In particular, in both the Bosnian and the Croatian cases (and with virtual unanimity at that) the Court relied on the ICTY to establish the facts. In the intervening decade the ICTY couldn’t convict anyone for genocide in Bosnia in 1992 – it most recently (unanimously) acquitted Radovan Karadzic at trial in that regard, and it is more likely than not that the same thing will happen in the Mladic case, which is based on more or less the same evidence.

Finally, this means that the pragmatic choice for the Court was actually easy – dismiss the case summarily now, by asking Bosnia a very simple, sensible question that is unlikely to ever be repeated in any future case (hi there! – is it really you who are making this request?), or spend the next several years handling an applicant state suffering from multiple personality disorder, in a completely futile exercise the outcome of which would never be in doubt, wasting everybody’s time and energies. And at the same time, that exercise would have been providing constant fodder to nationalist politicians in the Balkans (like Messrs Izetbegovic, Dodik and Vucic), who would constantly be capitalizing on the proceedings and misrepresenting what the Court does in order to fuel their narratives of competitive victimhood and maintain their grip on power. Thus, the Court did what it did, and rightly so. It was, after all, not their first Balkan rodeo. I don’t think that the judges can reasonably be criticized (let alone preached at in the name of history or the victims of genocide) simply because they didn’t want to go for yet another, sordid, pointless ride.