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Balkanizing Jurisdiction: Reflections on Article IX of the Genocide Convention in Croatia v. Serbia

Published online by Cambridge University Press:  30 October 2015

PAYAM AKHAVAN
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Abstract

When it first encountered the Genocide Convention in its 1951 Advisory Opinion, the International Court of Justice recognized that the treaty reflected the ‘most elementary principles of morality’. Its provisions were to be read broadly, in light of the Convention's transcendent object and purpose. This expansive approach stands in contrast with the narrow interpretation of Article IX in the recent Judgment in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) case. This article is a commentary on the retroactive obligation to punish genocide under the Convention with regard to acts occurring prior to its entry into force for that state. It concludes that the Court's narrow interpretation of its jurisdiction ratione temporis raises wider questions for its contemporary jurisprudence, namely, whether it will interpret human rights treaties enshrining fundamental values any differently than other international instruments.

Keywords

Article IXCroatiagenocideICJSerbia
Type
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice
Information
Leiden Journal of International Law , Volume 28 , Issue 4 , December 2015 , pp. 893 - 897
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2015 

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References

1 Reservations to the Convention on the Prevention and Punishment of Genocide, Advisory Opinion, 28 May 1951, [1951] ICJ 12.

2 Ibid.

3 Ibid., p. 23.

4 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment of 18 November 2008, [2008] ICJ Rep. 412, para. 123.

5 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Merits, Judgment of 3 February 2015, para. 93 [hereinafter Croatia v. Serbia Judgment].

6 Ibid., para. 95.

7 Ibid., para. 96.

8 754 UNTS 73.

9 Judgment, para. 96.

10 Ibid.

11 Case of Janowiec and Others v. Russia (ECHR), Application Nos. 55508/07 and 29520/09, Judgment (21 October 2013), para. 131.

12 Croatia v. Serbia Judgment, supra note 5, para. 97.

13 Prosecutor v. Kupreškić, Judgement, Case No. IT-95–16-T, T. Ch., 14 January 2000, para. 636.

14 Clark, R. S., ‘Crimes against Humanity’, in Ginsburgs, G. and Kudriavtsev, V. N. (eds.), The Nuremberg Trial and International Law (1990), at 194Google Scholar.

15 999 UNTS 171.

16 M. Bossuyt, Guide to the Travaux Préparatoires of the ICCPR (1987), at 331.

17 Croatia v. Serbia Judgment, supra note 5, para. 97.

18 Ibid., para. 104.

19 Bolívar Railway Company claim, UNRIAA, Vol. IX, 445, at 453 (1903).

20 Croatia v. Serbia Judgment, supra note 5, para. 115.

21 Ibid., para. 117.

22 See articles in this Symposium on mens rea and actus reus.

23 Reservations Advisory Opinion (1951), supra note 1, at 23.

24 It is recognized that the Genocide Convention is not a human rights treaty stricto sensu in so far as it applies state responsibility in regard to the prevention and punishment of an international crime. For purposes of interpretation however, it shares the communitarian and humanitarian object and purpose that is characteristic of human rights treaties.