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Some New Evidence on the ICJ's Treatment of Evidence: The Second Genocide Case

  • ANDREA GATTINI and GIULIO CORTESI

Abstract

In the decision on the second Genocide case (Croatia v. Serbia) the ICJ did not deviate from its ruling of 2007 (Bosnia-Herzegovina v. Serbia and Montenegro) in matters of evidence. A comparison between the two cases nevertheless shows subtle but interesting nuances. Whereas in the first Genocide case the Court was confronted with a ICTY finding that a genocide had indeed been committed in Srebrenica in July 1995, in the present case the ICTY Prosecutor had not even indicted any Serbian or Croatian organ of such a crime. The ICJ was able to find the actus reus of genocide in many instances, both on the part of Serbia and Croatia, but it found that neither party had been able to prove the existence of the mens rea, either by relying on a pattern of conduct, or even by relying on the transcript of a governmental meeting. This throws a disquieting light on the actual capacity of the Court to deal with claims of commission of genocide, as distinguished from claims of lack of prevention or repression.

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1 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Merits, Judgment of 3 February 2015 (not yet published) [hereafter ‘Judgment’].

2 See Gattini, A., ‘Evidentiary Issues in the ICJ's Genocide Case’, (2007) 5 Journal of International Criminal Justice 889.

3 Judgment, supra note 1, para. 172; Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v. Serbia & Montenegro), Merits, Judgment of 26 February 2007, [2007] ICJ Rep. 43 (‘Bosnian Genocide Judgment’), para. 204.

4 See Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment of 30 November 2010, [2010] ICJ Rep. 639, para. 54.

5 Ibid., para. 55.

6 Compare the analogous jurisprudence by the European Court of Human Rights, ex multis Salman v. Turkey [GC], Appl. No. 21986/93, Judgment of 27 June 2000, para. 100, ECHR 2000-VII.

7 Judgment, supra note 1, para. 174.

8 Ibid., para. 173, quoting Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Merits, Judgment of 20 April 2010, [2010] ICJ Rep. 14, para. 163.

9 Milanović, M., ‘State Responsibility for Genocide: A Follow Up’, (2007) 18 EJIL 669, at. 677.

10 Gattini, supra note 2, at 892–3.

11 Judgment, supra note 1, paras. 177–9, referring to the Bosnian Genocide Judgment, supra note 3, para. 209.

12 Bosnian Genocide Judgment, supra note 3, para. 373.

13 CR 2014/20 per Sands.

14 Prosecutor v. Tolimir, Judgement, Case No. IT-05-88/2, T. Ch., 12 December 2012, para. 745.

15 Judgment, supra note 1, para. 148.

16 Ibid., para. 408.

17 Prosecutor v. Mrkšić, Judgement, Case No. IT-95-13/1-T, T. Ch., 27 September 2007 (in Judgment, supra note 1, para. 308), Prosecutor v. Martić, Judgement, Case No. IT-95-11-T, T. Ch., 12 June 2007 (in Judgment, supra note 1, paras. 257–9); Prosecutor v. Stanišić and Simatović, Judgement, Case No. IT-03-69-T, T. Ch., 30 May 2013 (in Judgment, supra note 1, para. 244, para. 334), Prosecutor v. Strugar, Judgement, Case No. IT-01-42-T, T. Ch., 31 January 2005, para. 176, (in Judgment, supra note 1, para. 367), Prosecutor v. Jokić, Judgement, Case No. IT-01-42/1-S, T. Ch., 18 March 2004, para. 27 (in Judgment, supra note 1, para. 293).

18 Judgment, supra note 1, para. 440.

19 Prosecutor v. Gotovina, Judgement, Case No. IT-06-90-T, T. Ch., 15 April 2011, and Judgement, IT-06-90-A, A. Ch., 16 November 2012.

20 Judgment, supra note 1, para. 507 and para. 512.

21 Judgment, supra note 1, Separate Opinion, Judge Skotnikov, para. 10.

22 Gattini, supra note 2, at 894.

23 Judgment, supra note 1, Separate Opinion, Judge Gaja, para. 3.

24 ‘The Trial Chamber found, and the Appeals Chamber endorses this finding, that the killing was engineered and supervised by some members of the Main Staff of the VRS. The fact that the Trial Chamber did not attribute genocidal intent to a particular official within the Main Staff may have been motivated by a desire not to assign individual culpability to persons not on trial here. This, however, does not undermine the conclusion that Bosnian Serb forces carried out genocide against the Bosnian Muslims.’ Prosecutor v. Krstic, Judgment, IT-98-33-A, A. Ch. 19 April 2004, para. 35.

25 Bosnian Genocide Judgment, supra note 3, para. 295.

26 See Bosnian Genocide Judgment, supra note 3, para. 57 with the list of witnesses called by Bosnia and Herzegovina, and para. 58 with the list of witnesses called by Serbia and Montenegro.

27 Judgment, supra note 1, paras. 222, 226, 236, 253, 260, 282, 310 (witness called by Croatia that appeared before the Court), paras. 481, 484 (witness called by Serbia that appeared before the Court).

28 For further information about the importance of cross-examination for the purpose of the admissibility of testimonial evidence in international criminal law see for example Gosnell, C., ‘Admissibility of Evidence’, in Khan, K., Buisman, C., and Gosnell, C. (eds.), Principles of Evidence in International Criminal Justice (2010), at 396–7. However, it must be recalled that some authors suggest that, at least in principle, international procedure should be neutral, being neither entirely adversarial nor inquisitional. See G. Petrochilos, Procedural Law in International Arbitration (2004), 219.

29 Judgment, supra note 1, paras. 236, 260 (with regard to witnesses called by Croatia to give oral testimony who Serbia did not wish to cross-examine) and para. 253 (with regard to a witness called by Croatia to give oral testimony whose statement was not contested by Serbia).

30 Judgment, supra note 1, para. 459.

31 Free Zones of Upper Savoy and the District of Gex (France v. Switzerland), Judgment, 7 June 1932, PCIJ Rep. Series A/B No. 46, at 138.

32 See Benzing, M., ‘Evidentiary issues’, in Zimmermann, A.et al. (eds.), The Statute of the International Court of Justice (2012) 1234, at 1239, who refers to Lachs, M., ‘The Revised Procedure of the International Court of Justice’, in Kalshoven, F.et al. (eds.), Essays on the Development of the International Legal Order (1980) 21, at 38.

33 See Georges Pinson case, French-Mexican Claims Commission, 19 October 1928, RSA V, p. 412–13; Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 14 (‘Nicaragua’), 40.

34 B. Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953), 303; G. Niyungeko, La preuve devant les juridictions internationales (2005), 322; C. F. Amerasinghe, Evidence in International Litigation (2005), 187.

35 D. V. Sandifer, Evidence before International Tribunal (1971), 257.

36 Gosnell, supra note 28, 389.

37 McDermott, Y., ‘The Admissibility and Weight of Written Witness Testimony in International Criminal Law: A Socio-Legal Analysis’, (2013) 25 LJIL 971, at 981.

38 Nicaragua, supra note 33, para. 68, referring to The Corfu Channel Case, Merits, Judgment of 9 April 1949, [1949] ICJ Rep. 4, para. 17.

39 Judgment, supra note 1, para. 228: ‘To those statements which do not constitute first-hand accounts of the events, the Court gives no evidential weight’; See further paras. 266 and 343 for similar statements.

40 Cheng, supra note 34, 312; Niyungeko, supra note 34, 360; Sandifer, supra note 35, 208.

41 Judgment, supra note 1, para. 198.

42 ‘The Court will accord evidential weight to these statements only where they have been confirmed by other witnesses, either before the Court or before the ICTY, or where they have been corroborated by credible evidence.’ Judgment, supra note 1, para. 199.

43 Ibid., para. 343.

44 Ibid., para. 314.

45 Ibid., paras. 318 and 322.

46 Judgment, supra note 1, Declaration of Judge Donoghue, para. 9.

47 Nicaragua, supra note 33, para. 64. See also Bosnian Genocide Judgment, supra note 3, para. 213.

48 For a critical view in respect of the fact finding process in Nicaragua, supra note 33, see, Franck, T. M., ‘Fact Finding in the ICJ’, in Lillich, R. B. (ed.), Fact-Finding by International Tribunal, Eleventh Sokol Colloquium (1992), 17.

49 Del Mar, K., ‘The ICJ and the Standard of Proofs’, in Bannelier, K. et al (eds.), The ICJ and the Evolution of International Law: The Enduring impact of the Corfù Channel Case (2012), 98, at 101–2.

50 Judgment, supra note 1, para. 190.

51 Ibid., para. 344.

52 Ibid., para. 329.

53 UN Doc. A/54/549.

54 Bosnian Genocide Judgment, supra note 3, para. 228.

55 UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Former Yugoslavia, Periodic Report, UN Doc. S/1995/993- A/50/727, 7 November 1995.

56 Judgment, supra note 1, para. 459.

57 Bosnian Genocide Judgment, supra note 3, para. 223.

58 Judgment, supra note 1, Declaration of Judge Donoghue, para. 2.

59 For example, Judgment, supra note 1, para. 270.

60 Ibid., paras. 352–3.

61 Prosecutor v. Babić, Sentencing Judgment, Case No. IT-03-72-S, T. Ch., 29 June 2004 (in Judgment, supra note 1, para. 387).

62 See Gattini, supra note 2, at 900. It will be recalled that in the Bosnian Genocide Judgment, supra note 3, the Court had somehow reduced the relevance of such sentencing judgments by saying that may be given ‘a certain weight’ at para. 224.

63 Groome, D., ‘Adjudicating Genocide: Is the International Court of Justice Capable of Judging State Criminal Responsibility?’, (2007) 31 (4)Fordham International Law Journal 944.

64 Judgment, supra note 1, para. 187.

65 In some instances the Court referred to the ICTY jurisprudence as a source for the legal definition of some aspects of genocide, see Judgment, supra note 1, paras. 157, 517–18 and 691.

66 Gotovina Trial Judgement, supra note 19, para. 1970.

67 Gotovina Appeals Judgement, supra note 19, para. 61.

68 Judgment, supra note 1, para. 471.

69 Ibid., para. 472

70 Bosnian Genocide Judgment, supra note 3, para. 403.

71 Ibid.: ‘As stated above, the Court attaches the utmost importance to the factual and legal findings made by the ICTY in ruling on the criminal liability of the accused before it . . . The situation is not the same for positions adopted by the ICTY on issues of general international law which do not lie within the specific purview of its jurisdiction’.

72 For a sharp criticism of the majority decision see also Clark, J., ‘Courting Controversy: The ICTY's Acquittal of Croatian Generals Gotovina and Markac’, (2013) 11 Journal of International Criminal Justice 399. See also Judge Pocar's Dissenting Opinion in Gotovina Appeals Judgement, supra note 19.

73 Judgment, supra note 1, para. 512.

74 For a marked criticism of some practices of the ICC, such as the excessive reliance of the Office of the Prosecutor on local information providers, known as ‘intermediaries’, see De Vos, C., ‘Investigating from Afar: The ICC's Evidence Problem’, (2013) 26 LJIL 1009. For a more general assessment of the challenges ahead in developing a truly international criminal evidence practice, see the contributions of the Symposium, ‘Expertise, Uncertainty and International Law: Integrating a Socio-Legal Approach to Evidence in the International Criminal Tribunals’, published in (2013) 26 LJIL 933, and in (2014) 27 LJIL 189.

75 Judgment, supra note 1, Separate Opinion, Judge Skotnikov, para. 14.

* Professor of International Law (Università di Padova) []. Andrea Gattini is the author of Sections 1, 2, 3, 5, and 6.

** Doctoral candidate (Università di Padova/Université de Paris I-Sorbonne) []. Giulio Cortesi is the author of Section 4.

Keywords

Some New Evidence on the ICJ's Treatment of Evidence: The Second Genocide Case

  • ANDREA GATTINI and GIULIO CORTESI

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