Adjudicating Genocide: Is the International Court of Justice Capable of Judging State Criminal Responsibility?

Fordham International Law Journal, Aug 2018

Last February, the International Court of Justice issued a judgement adjudicating claims by Bosnia and Herzegovina that Serbia breached the 1948 Genocide Convention – the case marks the first time a state has made such claims against another. The alleged genocidal acts were the same as those that have been the subject of several criminal trials in the Yugoslav Tribunal. The judgment contained several landmark rulings – among them, the Court found that a state, as a state, could commit the crime of genocide and the applicable standard of proof for determining state responsibility is comparable to the standard used in criminal trials. The Court, with these rulings, committed itself to the same essential task faced by the Yugoslav Tribunal – an examination of the states of mind of senior officials to determine if genocidal acts were committed with the intent to destroy a protected group. The work of the ad hoc tribunals for Yugoslavia and Rwanda has demonstrated that adjudicating genocide cases present several unique interpretative and analytical challenges. The Court, intended as a forum to resolve disputes between states, is ill-equipped to adjudicate issues traditionally reserved for criminal courts involving the examination of an individual’s state of mind. Further, considerations of fairness prevent the Court from adjudicating the criminal culpability of individuals who are not before it. This article explores the methodology developed by the ICJ for adjudicating its first genocide case, its implications for future cases and draws the conclusion that such methodology forces the Court into a relationship that is dependent upon the work of other international criminal tribunals.

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Adjudicating Genocide: Is the International Court of Justice Capable of Judging State Criminal Responsibility?

FORDHAMINTERNATIONALLAWJOURNAL Fordham International Law Journal Dermot Groome - 2007 Article 7 Copyright c 2007 by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj Adjudicating Genocide: Is the International Court of Justice Capable of Judging State Criminal Responsibility? Dermot Groome Last February, the International Court of Justice issued a judgement adjudicating claims by Bosnia and Herzegovina that Serbia breached the 1948 Genocide Convention – the case marks the first time a state has made such claims against another. The alleged genocidal acts were the same as those that have been the subject of several criminal trials in the Yugoslav Tribunal. The judgment contained several landmark rulings – among them, the Court found that a state, as a state, could commit the crime of genocide and the applicable standard of proof for determining state responsibility is comparable to the standard used in criminal trials. The Court, with these rulings, committed itself to the same essential task faced by the Yugoslav Tribunal – an examination of the states of mind of senior officials to determine if genocidal acts were committed with the intent to destroy a protected group. The work of the ad hoc tribunals for Yugoslavia and Rwanda has demonstrated that adjudicating genocide cases present several unique interpretative and analytical challenges. The Court, intended as a forum to resolve disputes between states, is ill-equipped to adjudicate issues traditionally reserved for criminal courts involving the examination of an individual’s state of mind. Further, considerations of fairness prevent the Court from adjudicating the criminal culpability of individuals who are not before it. This article explores the methodology developed by the ICJ for adjudicating its first genocide case, its implications for future cases and draws the conclusion that such methodology forces the Court into a relationship that is dependent upon the work of other international criminal tribunals. ADJUDICATING GENOCIDE: IS THE INTERNATIONAL COURT OF JUSTICE CAPABLE OF JUDGING STATE CRIMINAL RESPONSIBILITY? Dermot Groome* Hopefully, the activities of these two judicial institutions of the United Nations [The International Court of Justice and the International Criminal Tribunal for the former Yugoslavia] ... contribute in their respective fields to their common objective-the achievement of international justice-however imperfect it may be perceived. Judge Peter Tomka, International Court of Justice INTRODUCTION On February 26, 2007, the International Court of Justice ("ICJ")' issued its judgment in Application of the Convention on the Prevention and Punishment of the Crime of Genocide ("ICJ Genocide Judgment"),2 adjudicating claims by Bosnia and Herzegovina ("Bosnia") that Serbia had breached its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 ("Genocide Convention"). The case, filed by Bosnia against the Federal Republic of Yugoslavia ("FRY') in * Dermot Groome is a Senior Trial Attorney in the Office of the Prosecutor. This Article was written while he was a visiting professor at Pennsylvania State Dickinson School of Law. He would like to express his gratitude for the school's support of this project. 1. The International Court ofJustice ("ICJ") was established by the Charter of the United Nations ("U.N.") in 1945 as the successor institution to the Permanent Court of International Justice and is the primary judicial organ of the United Nations. The ICJ has its own statute and rules and has the authority to give advisory opinions as well as settle controversial cases between states. By ratifying the U.N. Charter, Member States consent to the jurisdiction of the ICJ and have the right to bring disputes with other states before the ICJ. Some conventions, such as the Genocide Convention, have specific provisions referring disputes to the ICJ. See Convention on the Prevention and Punishment of the Crime of Genocide art. 9, Dec. 11, 1948, 78 U.N.T.S. 277 [hereinafter Genocide Convention]; U.N. Charter arts. 92-93; Statute of the International Court of Justice arts. 1, 36, 65, June 26, 1945, 33 U.N.T.S. 993 [hereinafter ICJ Statute]. 2. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.) (Judgment of Feb. 26, 2007), available at http://www.icj-cij.org/docket/files/91/13685.pdf (last visited Mar. 20, 2008) [hereinafter ICJ Genocide Judgment]. 1993, alleged that the widespread campaign of ethnic cleansing-focused most sharply against the Muslim population of Bosnia-constituted a breach of Serbia's obligations under the Genocide Convention.3 The case marks the first time a State Party to that Convention has accused another state of perpetrating the crime of genocide. In reexamining old injuries, the ICJ's judgment renewed controversy between the different ethnic groups about the continued existence of the joint political institutions created by the Dayton Peace Accords of 1995.4 The case had a long, complex procedural history complicated by continued conflict in the region and by the question of Serbia's membership in the United Nations ("U.N.") after the dissolution of Yugoslavia in 1992-a question that had significant jurisdictional implications for the case.5 After determining 3. Prior to its dissolution, the Socialist Federal Republic of Yugoslavia ("SFRY') was comprised of six constituent republics: Serbia, Montenegro, Bosnia and Herzegovina, Croatia, Slovenia, and Macedonia. At the time of filing, Bosnia, Slovenia, Croatia, and Macedonia were recognized as independent countries, and the remaining Yugoslav states of Serbia and Montenegro were collectively referred to as the Federal Republic of Yugoslavia ("FRY'), having adopted this name in 1992. In 2003, the FRY changed its name to "Serbia and Montenegro." After a referendum in May 2006, Montenegro dissolved its union with Serbia, leaving Serbia as the sole respondent. For the purposes of the Genocide Convention, Serbia accepted continuity between "Serbia and Montenegro" and the "Republic of Serbia." For a full account of the name and identification of the respondent, see id. 67-79. For clarity, this Article will use the name "Serbia" to refer to the respondent at all stages of the proceedings. 4. See T.tR Vogel, Bosnia-Herzegovina: Reaching a Breaking Point over Srebrenica, RA DIO FREE EUROPE, July 9, 2007, http://www.rferl.org/features/featuresArticle.aspx?m= 07&y-2007&id=B4E3B429-A6CD-486A-ABF9-202B09345A81 ("The most recent campaign to scrap the entities [created by the Dayton Peace Accords in 1995] was prompted by ajudgment in February, in which the International Court ofJustice (ICJ) confirmed that the 1995 killings at Srebrenica did in fact constitute genocide."). 5. In its final arguments before the Court, Serbia essentially claimed that the ICJ had no jurisdiction over it for two reasons: first, because Serbia was not the continuator state of the SFRY and thus did not "inherit" the SFRYs obligations under the Genocide Convention, and second, because it was not the continuator of the SFRY, it did not "inherit" the SFRY's membership in the U.N., and thus was not a party to the ICJ's statute. See ICJ Genocide Judgment, supranote 2, 66. The issue of Serbia's U.N. membership is complicated because following the dissolution of the SFRY, the FRY (Serbia and Montenegro) claimed to be the continuator of the SFRY and its membership in the U.N. On May 30, 1992, the U.N. Security Council adopted Resolution 757, which rejected the FRY's claim to be the successor of Yugoslavia as "not be[ing] generally accepted." S.C. Res. 757, pmbl., U.N. Doc. S/RES/757 (May 30, 1992). It further stated in Resolution 777 that the FRY could not automatically continue the SFRY's membership and referred the matter to the General Assembly. See S.C. Res. 777, 1, U.N. Doc. S/ RES/777 (Sept. 19, 1992). On September 22, 1992, the General Assembly adopted resolution 47/1, which affirmed that the FRY did not inherit the SFRY's membership that it did indeed have jurisdiction over Serbia, the ICJ went on to enter findings regarding Bosnia's allegations against Serbia. In summary, the ICJ found that Serbia, as a state, had neither committed genocide in Bosnia nor been complicit in the crime of genocide. 6 The ICJ did conclude that Serbia, through its continued support of Bosnian Serbs in light of the probability that some of them would commit the crime of genocide, had "violated the obligation to prevent genocide .. .in respect of the genocide that occurred in Srebrenica in July 1995."' The ICJ further concluded that Serbia's failure to transfer Ratko Mladit to the International Criminal Tribunal for the Former Yugoslavia ("ICTY") was a breach of the Genocide Convention.' The judgment, which fell far short of the relief sought by Bosnia,9 was immediately criticized by observers who questioned not only the ICJ's findings, but its methodology, its analysis, and even the ICJ's capacity to adjudicate such a complex case.'0 This Article explores the ICJ's methodology and its resulting analysis, and interprets both in relation to the parallel work of the ICTY. While the ICJ is to be commended for its efforts to give practical effect to the prohibitions of the Genocide Convention, its methodology and analysis fell short of the task before it, with the clearest example being its failure to assess, in any comprehensive way, the body of evidence that the prosecution introduced in the genocide case against Slobodan Milogevit before the ICTY. At the end of the prosecution's case, the trial chamber, pursuant to Rule 98 bis of the ICTY's Rules of Procedure and Evidence, determined that the prosecution had introduced sufficient evidence upon which a reasonable trial chamber could be satisified beyond a reasonable doubt that MilogeviC had committed the crime of genocide. MilogeviCs death ended the case, however, and denied the world a definitive, finaljudgment. The ICJ's failure to examine this body of evidence is tacit recognition of its inability to take on the role of a trial chamber adjudicating individual guilt-that is, to carefully explore complex testimony and evidence, and to make determinations regarding issues of individual criminal responsibility. This Article argues that the ICJ, through several of its rulings, committed itself to carrying out some of the same tasks as a criminal tribunal but that the ICJ was unable to independently complete the very task that it defined for itself. Instead, it has created a relationship of dependency-a relationship in which it will always have to wait upon, and defer to, international criminal tribunals adjudicating genocide cases before it can properly enter a judgment regarding state responsibility for the crime of genocide. While the term "genocide" became part of the world's vo10. See Ruth Wedgwood, Op-Ed., Bad Day for InternationalJustice, INT'L HERALD TmRB., Mar. 8, 2007, available at http://www.iht.com/articles/2OO7/O3/O8/opinion/ edwedge.php ("Yet the International Court of Justice . . . fail[s] to explain why the deliberate slaughter of civilians in the riverside town of Brcko in 1992, meant to push Muslims away from the Sava River corridor or the torture and starvation of Muslim civilians in Foca, is different in kind from the Srebrenica murders meant to secure the Drina Valley .... It will take years of study to understand how that could be true .... [T]he International Court of Justice applies the demands of criminal proof to a civil case. Thejudges insist that even for civil liability, proof against Belgrade has to be 'fully conclusive' and 'incontrovertible,' with a level of certainty 'beyond any doubt.' This standard is well known when the jail door will shut, but it exceeds the demands of civil liability."). cabulary during the Nazi campaign against six million Jews in World War II, it was only after the war that genocide became a legally enforceable crime. Targeting an entire group of people for destruction was recognized as being qualitatively different from the particular acts, all crimes in themselves, used to achieve that end. Although the crime of persecution covered acts that we now consider genocide, such a characterization did not adequately reflect the magnitude or unique character of this "crime of all crimes."'" Raphael Lemkin fashioned the term "genocide" and indefatigably campaigned for its recognition as a distinct crime. 2 On December 11, 1946, the U.N. General Assembly adopted a resolution defining genocide as "a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings."1 Two years later, the Genocide Convention was adopted, unequivocally establishing genocide as an international crime and giving it a precise legal definition capable of enforcement. The crime of genocide would move from page to praxis when the ICTY and the International Criminal Tribunal for Rwanda ("ICTR") incorporated, almost verbatim, the definitional provisions of the Genocide Convention into their respective statutes and applied them to the unbridled inhumanity that scourged Rwanda and the former Yugoslavia in the early 1990s. Trials in the two ad hoc tribunals have now forged a body of nascent jurisprudence that has given tangible form and effect to Lemkin's quest to hold those who commit genocide individually responsible for their acts.1 4 In 1993, while the U.N. Security Council was considering taking the bold step of establishing an ad hoc tribunal for the former Yugoslavia under Chapter VII of the U.N. Charter,' 5 Bosnia initiated ICJ proceedings against the FRY, alleging that the FRY had perpetrated, and was continuing to perpetrate, the 11. GU9NA.L ME'TTRAUX, INTERNATIONAL CRIMES AND THE AD HOC TRIBUNALS 199 (2005). 12. See RAPHAL LEMKIN, Axis RULE IN OCCUPIED EUROPE: LAWS OF OCCUPATION, ANALYSIS OF GOVERNMENT, PROPOSALS FOR REDRESS 79 (1973). 13. G.A. Res. 96/1, U.N. Doc. A/RES/96/1 (Dec. 11, 1946). 14. Ralph Lemkin was a Holocaust survivor who coined the term "genocide" and was a tenacious advocate for its formal recognition as a distinct international crime. See LEMKIN, supra note 12, at 91. 15. See S.C. Res. 808, pmbl., U.N. Doc. S/RES/808 (Feb. 22, 1993); S.C. Res. 827, pmbl., U.N. Doc. S/RES/827 (May 25, 1993). Bosnia instituted proceedings against Serbia on March 20, 1993. See ICJ Genocide Judgment, supra note 2, 1. crime of genocide against the non-Serb population of Bosnia. 6 Within months the ICTY was established in the Hague, a short distance away from the ICJ; the two international courts would begin their parallel, yet distinct, efforts to give effect to the prohibitions embodied in the Genocide Convention. These related endeavors, in which the two courts would seek to determine both state and individual responsibility for crimes committed in Bosnia, would require the courts to interpret the language of the Genocide Convention and to develop standards and methodologies suitable to the task of applying it. In the ICJ Genocide Judgment the ICJ explicitly recognized that it was treading the same ground as ICTYjudges, which was described as an "unusual" feature of the case.1 7 But in coming years, this situation is apt to become the norm. As our system of international criminal justice leaves its adolescence and matures into an effective and predictable check on impunity (primarily through the International Criminal Court ("ICC")), it is likely that all credible allegations of genocide will be the subject of comprehensive investigations to determine individual responsibility. It seems equally likely that other countries will follow Bosnia's initiative and call upon the ICJ to intervene and adjudicate interstate violations of the Genocide Convention. 8 In such circumstances, the parallel cases before the ICJ will most likely be commenced during the course of continuing criminal activity and before individual criminal accountability has authoritatively been determined in an international criminal tribunal. The resulting overlap in the work of the two international courts involved has the potential either to facilitate or to impede their work. 9 One ICJ judge expressed the view, however, that it may 16. Bosnia sought to define the targeted group in negative terms: "non-Serb national, ethnical or religious group within, but not limited to, the territory of Bosnia and Herzegovina, including in particular the Muslim population." See ICJ Genocide Judgment, supra note 2, 66. 17. See id. 212. 18. After Bosnia filed its application in the ICJ, Croatia filed a similar application against Serbia, claiming that Serbia had breached the Genocide Convention with respect to crimes committed within the borders of Croatia. See id. 232; see also Press Release, International Court of Justice, Croatia Institutes Proceedings Against Yugoslavia for Violations of the Genocide Convention, Press Release 1999/38 (July 2, 1999) available at http://www.icj-cij.org/presscom/index.php?pr=527&pt=I&pl= 6 &p 2 =l. 19. Judge Tomka, in concluding his separate opinion, stated: "This Court and the ICTY have two different missions but one common objective .... The activity of the [ICJ] has thus complemented the judicial activity of the ICTY in fulfilling the Court's be impossible for the ICJ to adjudicate state-versus-state claims alleging genocide absent a parallel international court.2 ° I. GENOCIDE: ADJUDICATING THE CRIME OF CRIMES The definitional element that most distinguishes genocide from other international crimes is its mens rea requirement that the perpetrator have the "intent to destroy in whole or in part a national, ethnical, racial or religious group, as such,"2 1 commonly referred to as the "special intent," or "dolus specialis," of genocide. Although the term "genocide" is popularly used to describe serious crimes committed on a discriminatory basis, its legal definition limits its prohibition to specified acts committed with the intent to destroy a particular protected group. The conrole in the field of State responsibility for genocide, over which the ICTY has no jurisdiction. Hopefully, the activities of these twojudicial institutions of the United Nations, the Court remaining the principal judicial organ of the Organization, contribute in their respective fields to their common objective-the achievement of international justice-however imperfect it may be perceived." Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.) (Judgment of Feb. 26, 2007) (Separate Opinion of Judge Tomka), 73, available at http://www.icj-cj.org/docket/files/91/13699.pdf (last visited Mar. 20, 2008) [hereinafter ICJ Genocide Judgment (Separate Opinion of Judge Tomka)]. 20. See id. 72 ("Cases involving the 'responsibility of a State for genocide' are too serious to be adjudicated simply on the basis of the allegations by the Parties."). Judge Tomka also recognized that "[w]ithout the work accomplished by the ICTY, it would have been much more difficult for the Court to discharge its role in the present case." Id. 21. Genocide Convention, supra note 1, art. 2. The full text of Article 2 of the Genocide Convention reads as follows: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. Id. This language was incorporated without significant alteration into the International Criminal Tribunal for the former Yugoslavia ("ICTY") Statute, the International Criminal Tribunal for Rwanda ("ICTR") Statute, and the Rome Statute creating the International Criminal Court. See Statute of the International Criminal Tribunal for the Former Yugoslavia art. 4, May 25, 1993, 32 I.L.M. 1159 [hereinafter ICTY Statute]; Statute of The International Tribunal for Rwanda art. 2, Nov. 8, 1994, 33 I.L.M. 1598; Rome Statute of The International Criminal Court art. 6, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute]. See generally M. CHERIF BAsSIOUNI, INTRODUCTION TO INTERNATIONAL CRIMINAL LAw 138 (2003) (identifying other instruments defining genocide). sequence of this requirement is that large-scale, grievous crimes committed on a discriminatory basis are not genocide unless it can be demonstrated that its perpetrators possessed the dolus specialis to destroy a protected group.2 2 This unique mens rea imposes an additional and heavy burden of proof upon the party claiming that particular crimes constitute genocide. Genocide's elusive dolus specialis, coupled with a paucity of cases from which to take guidance, makes the crime difficult to investigate and adjudicate.2 3 This notion of intent has presented an interpretive challenge for ICTYjudges. In many cases the actus reus of genocide may be virtually indistinguishable from the actus reus of other serious international crimes, such as some forms of persecution as a crime against humanity. 24 Indeed, at the time of Nuremberg, the conduct prohibited by the Genocide Convention actually fell conceptually within the crime of persecution as a crime against humanity. 25 Although judges do, as a 22. On September 4, 2004, U.S. Secretary of State Colin Powell, appearing before the U.S. Senate Foreign Relations Committee, declared: "I concluded .. . that genocide has been committed in Darfur. .. ." Glenn Kessler & Colum Lynch, U.S. Calls Killings in Sudan Genocide; Khartoum and Arab Militias Are Responsible, Powell Says, WASH. POST, Sept. 10, 2004, at Al. Compare this with the conclusion of the commission appointed by the U.N. Secretary-General, chaired by Antonio Cassesse, which found that while grave crimes (including killing, rape, and forced displacement) were committed by government forces, it could not be established that those actions constituted genocide. [T]he crucial element of genocidal intent appears to be missing, at least as far as the central Government authorities are concerned. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare. The Secretary-General, Report of the InternationalCommission of Inquiry on Darfur to the Secretary-General, at 4, delivered to the Security Council, U.N. Doc. S/2005/60 (Jan. 25, 2005). 23. See STEVEN R. RATNER &JASON S. ABRAMS, ACCOUNTABILITY FOR HuMt'N RIGHTS ATROCITIES IN INTERNATIONAL LAW: BEYOND THE NUREMBERG LEGACY 34 (1997). 24. In theory and in practice, there is little distinction between the actus reus of the crime of genocide and the most serious forms of persecution as a crime against humanity. In fact, there is no case in the ICTY or the ICTR in which genocide has been charged to the exclusion of the crime of persecution. Given the similarity of the underlying conduct and the inherently difficult burden of establishing genocide, prosecutors have exercised their charging discretion cautiously to couple the charge of persecution as a crime against humanity with genocide. 25. See Antonio Cassesse, Genocide, in I THE ROME STATUTE OF THE INTERNATIONAL matter of routine, draw logical and necessary inferences from the conduct of persons on trial, the conduct underlying genocide and other serious crimes are so similar as to present serious analytical difficulties. Of special note in this context is the determination whether a discriminatory crime was perpetrated against victims because of their membership in a group or was also intended as part of an effort to destroy the group itself.2 6 Discerning such genocidal intent has been one of the greatest challenges faced by judges of the ad hoc tribunals.2 7 The difficulties in establishing genocide are further complicated by the collective nature of the crime.2" Historical manifestations of genocide have always involved large numbers of actors, with each contributing in varying degrees to the harm to the targeted group. 29 In a crime that necessarily involves the actions CRIMINAL COURT: A COMMENTARY 335, 335 (Antonio Cassesse, Paola Gaeta & John R.W.D. Jones eds., 2002). 26. With persecution, as with all crimes against humanity, the prosecution must establish that the defendant was aware that his particular crime was part of a broader criminal event-"a widespread or systematic attack directed against any civilian population." Rome Statute, supranote 21, art. 7. There is no burden that the actor intend any particular consequence on the targeted group as a group. See Prosecutor v. Blagki , Case No. IT-94-14-T, Judgment, 1 207 (Mar. 3, 2000). 27. Consider the Jelisie case: From this point of view, genocide is closely related to the crime of persecution, one of the forms of crimes against humanity set forth in Article 5 of the Statute. The analyses of the Appeals Chamber and the Trial Chamber in the Tadie case point out that the perpetrator of a crime of persecution, which covers bodily harm including murder, also chooses his victims because they belong to a specific human group. As previously recognised by an Israeli District Court in the Eichmann case and the Criminal Tribunal for Rwanda in the Kayishema case, a crime characterised as genocide constitutes, of itself, crimes against humanity within the meaning of persecution. Prosecutor v. Jelisit, Case No. IT-95-10-T, Judgment, 1 68 (Dec. 14, 1999) (footnotes omitted); see also GERHARD WERLE, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW 254-55 (2005). 28. A report published by the Bosnian Serb government acting under pressure from the international community estimated that over 19,000 people participated in the massacres perpetrated in Srebrenica. See Nicholas Wood, More ProsecutionsLikely to Stem from New Srebrenica Report, N.Y. TIMES, Oct. 6, 2005, at A15. The government conceded that it still employed approximately 900 of the named participants. See id. 29. See LEMKIN, supra note 12, at 79 ("[G]enocide ... is intended ... to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even lives of the individuals belonging to such groups."). and intentions of many individuals, it may be difficult to determine whose state of mind (in addition to that of the accused) is relevant to the inquiry.3 0 In complex criminal acts that are the culmination of a multitude of persons, genocidal intent may be found in an equivalent multitude of places. 1 While the simplest formulation would be characterized by senior state officials and every person contributing to the actus reus sharing the same genocidal intent, that is not the reality of this complex crime. It may be that the direct perpetrators harbor genocidal intent, whereas state officials do not. Conversely, the state's senior leaders may be the architects of a carefully calculated genocidal plan that employs a multitude of others as instrumentalities who themselves do not possess genocidal intent3. 2 For example, leaders may exploit nationalism to foment fear, causing an explosion of violence directed at the protected group but whose direct perpetrators lack the dolus specialis of genocide and are motivated by a misperceived need for self-defense. These leaders may, with genocidal intent, be relying on the traditional discipline of soldiers to gain their participation in an actus reus for which the soldiers themselves have no relevant dolus specialis. 30. The Krstid appeals chamber found that it could make a determination that genocidal intent was present despite a failure to identify those who harbored it. See Prosecutor v. Krstit, Case No. IT-98-33-A, Judgment, 34 (Apr. 19, 2004). Contrast this finding with the Staki( trial chamber, which expressed its unwillingness to conclude that Stakit shared in the genocidal intent of his political superiors without more evidence about their intent. Having heard all the evidence, the Trial Chamber finds that it has not been provided with the necessary insight into the state of mind of alleged perpetrators acting on a higher level in the political structure than Dr. Stakie to enable it to draw the inference that those perpetrators had the specific genocidal intent. As a consequence, the Trial Chamber is unable to draw any inference from the vertical structure that Dr. Stakit shared the intent. Prosecutor v. Stakie, Case No. IT-97-24-T, Judgment, 547 (July 31, 2003). 31. See ME1rRAUX, supra note 11, at 207 ("Thus, genocide, it is sometimes suggested, may only be committed by people holding high offices such as ministers or generals .... In fact, just as anyone may commit a crime against humanity, all other conditions being met, anyone can commit a genocidal offence . (footnotes omitted)). 32. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.) (Judgment of Feb. 26, 2007) (Dissenting Opinion of Vice-President Al-Khasawneh), 148, availableat http://www.icjcj.org/docket/files/91/13689.pdf (last visited Mar. 20, 2008) [hereinafter ICJ Genocide Judgment (Dissenting Opinion of Vice-President Al-Khasawneh)] ("[G]enocide is definitionally a complex crime in the sense that unlike homicide it takes time to achieve, requires repetitiveness, and is committed by many persons and organs acting in concert."). The complexity of these questions regarding genocidal intent, which the ICTY and ICTR often faced, was compounded by the particular setting of the ICJ GenocideJudgment. As a preliminary matter, the ICJ had to determine whether the Genocide Convention created not only individual, but also state, criminal responsibility. Despite the lack of an express provision in the Genocide Convention prohibiting states from committing genocide, the ICJ came to the conclusion that such a prohibition was implicit in the Genocide Convention's categorization of genocide as an international crime and that states, by agreeing to such a categorization, "must logically be undertaking not to commit the act so described."3 3 This interpretation is incongruent, however, with the Nuremberg principle that "crimes against international law are committed by men, not by abstract entities, " " and several of the judges disagreed with the majority on this point. From their perspective, a state, as an abstract entity, was incapable of forming intent and of committing a crime in the penal sense. 5 33. See ICJ Genocide Judgment, supranote 2, 166. The Court was also led to this conclusion by States Parties' express obligation to prevent the commission of acts of genocide. "It would be paradoxical if States were thus under an obligation to prevent, so far as within their power, commission of genocide by persons over whom they have a certain influence, but were not forbidden to commit such acts through their own organs .... Id. Finally, the Court interpreted the Genocide Convention's jurisdictional provisions ("including those [disputes] relating to the responsibility of a State for genocide") as providing for state liability for the commission of genocidal acts. See id. 1 169 (quoting Genocide Convention, supra note 1, art. 9). Severaljudges dissented from this view. See, e.g.A,pplication of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.) (Judgment of Feb. 26, 2007) (joint Declaration of Judges Shi and Koroma), 4, available at http://www.icj-cij.org/ docket/files/91/13695.pdf (last visited Mar. 20, 2008) [hereinafter ICJ Genocide Judgment (Joint Declaration of Judges Shi and Koroma)] ("[I]f the Convention was intended to establish an obligation of such grave import as one that could entail some form of criminal responsibility or punishment of a State by an international tribunal such as this Court for genocide, this would have been expressly stipulated in the Convention, but the Convention did not do so."). 34. 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL: NUREMBURG, 14 NOVEMBER 1945-1 OCTOBER 1946 223 (1947); see also ICJ Genocide Judgment (Joint Declaration ofJudges Shi and Koroma), supra note 33, 3 ("The object and purpose of the Genocide Convention is to prevent and to punish the crime of genocide, and, reflecting the Nuremberg principles, the Convention is directed against individuals and not the State."); RATNER & ABRAMS, supra note 23, at 26 ("Article IV, reflecting the Nuremberg principles, provides for individual responsibility, including that of government officials, for genocide."). 35. The problem is underscored by Judge Owada, who, in arguing that the Genocide Convention does not provide for State criminal responsibility, stated that "it is Nevertheless, having determined that a state, in principle, could commit the crime of genocide, the ICJ obliged itself to determine not simply whether Serbia should be responsible for the conduct of its officials, but whether Serbia as a state possessed the requisite dolus specialis to commit genocide. Where, though, is the locus of the state's intent? The International Law Commission stated: The State is a real organized entity, a legal person with full authority to act under international law. But to recognize this is not to deny the elementary fact that the State cannot act of itself. An "act of the State" must involve some action or omission by a human being or group: "States can act only by and through their agents and representatives."3 6 clear that the Convention has rejected . ..an approach to hold the State directly to account for an international crime of genocide, on the ostensible ground that a State cannot commit a crime in the penal sense." Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.) (Judgment of Feb. 26, 2007) (Separate Opinion of Judge Owada), 1 52, available at http://www.icj-cij.org/docket/files/91/13697.pdf (last visited Mar. 20, 2008). See also the joint declaration of Judges Shi and Koroma: We entertain more than serious doubts regarding the interpretation given to the Genocide Convention in the Judgment to the effect that a State can be held directly to have committed the crime of genocide. . . . As an international criminal instrument, the convention envisages the trial and punishment of individuals for the crime of genocide. It does not impose criminal responsibility on the State as a State. Indeed, it could not have done so at the time it was adopted given that the notion of crime of State was not part of international law and even today general international law does not recognize the notion of the criminal responsibility of the State. ICJ Genocide Judgment (JointDeclaration ofJudges Shi and Koroma), supranote 33, 1 1. Judge Skotnikov disagreed with the majority's position that the Genocide Convention created an affirmative obligation not to commit genocide. He provides three reasons why it cannot: first, there can be no unstated obligations; second, the "unstated obligation" created by the majority is incompatible with the Convention, which confines itself to the criminal culpability of individuals; and third, according to general principles of international law, states cannot commit crimes; the majority's finding that a state can perpetrate genocide is inconsistent with the Convention in that there is no form of genocide that is not a crime, and hence the majority in effect "decriminalizes" the crime of genocide, transforming it into an "internationally wrongful act." See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.) (Judgment of Feb. 26, 2007) (Declaration of Judge Skotnikov), at 4, available at http://www.icj-cij.org/docket/files/91/13705.pdf (last visited Mar. 20, 2008) [hereinafter ICJ Genocide Judgment (Declaration of Judge Skotnikov)]. Judge Skotnikov also saw the majority's finding of state criminal liability as an unnecessary construction given the principle that a state can be held responsible any time a wrongful "act is committed by an individual capable of engaging State responsibility." See id. at 4-5. 36. International Law Commission, Apr. 23-June 1, 2001 & July 2-Aug. 10, 2001, The corporate state entity possesses no capacity to formulate intent itself: its intent is manifest only in the demonstrable intentions of state actors with the dejure or de facto authority to engage the state's participation in the crime's actus reus. The ICJ developed a two-part test for deciding whether the genocidal acts could be attributed to a state, which indicated, in turn, where it would look for genocidal intent. The first part of the test involved determining "whether the acts of genocide.. . were perpetrated by 'persons or entities' having the status of organs of the [FRY] . . . under its internal law, as then in force." 7 Using this test, the ICJ examined the respondent's internal law to determine if any person or entity engaged in genocidal acts had a legal relationship with the FRY. In the absence of a direct legal relationship, the ICJ examined whether acts of genocide were perpetrated by persons or entities under the "effective control" of the state as that expression was defined in Military and ParamilitayActivities in and Against Nicaragua.8" Having found that a state qua state can, in principle, commit the crime of genocide if those whose conduct is attributable to the state are individually responsible for genocide, the ICJ started down a path that would inevitably intersect and overlap with that of the ICTY. The ICJ would immerse itself in the same challenges faced by ICTY judges. It would need to determine the existence of dolus specialis in a collectively perpetrated crime and to distinguish between genocide and persecution as a crime against humanity.39 In resolving the question of whether Serbia perpetrated genocide in Bosnia, the ICJ would examine the conduct and state of mind of several of those accused before the Report of the InternationalLaw Commission on the Work of its Fifty-Third Session, 77, U.N. Doc. A/56/10 (citing German Settlers in Poland, Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 6, at 22 (Sept. 10)). 37. ICJ Genocide Judgment, supra note 2, 386. 38. "It must however be shown that this 'effective control' was exercised, or that the State's instructions were given, in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations." Id. 1 400 (relying on the precedent established in Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 64-65 (June 27)). 39. Discerning whether an act is a crime against humanity or the crime of genocide is important because the ICJ has jurisdiction over cases of genocide but not over crimes against humanity. Id. 1 277 ("The killings outlined above may amount to war crimes and crimes against humanity, but the Court has no jurisdiction to determine whether this is so."). ICTY. Most significantly, in reaching its conclusion that Serbia breached its duty to prevent the genocide in Srebrenica, the ICJ examined-and attributed to Serbia-MilogeviCs state of mind: "The FRY leadership, and President Milogevi6 above all, were fully aware of the climate of deep-seated hatred which reigned between the Bosnian Serbs and the Muslims in the Srebrenica region. "40 Whereas the ICTY's Statute and Rules of Procedure and Evidence are specifically designed for inquiring into the minds of individuals, those of the ICJ, designed for a different purpose, are ill suited for exploring issues of individual criminal culpability. As a preliminary matter, and in this methodological void, the ICJ was confronted with the task of pronouncing on fundamental methodological issues such as the applicable standard of proof, apportionment of the burden of proof, and the types of evidence that could be properly considered. Since the ICJ realized that its determination of the applicable standards and methods would affect future genocide cases, it devoted a significant portion of its judgment to developing these methods. And as 40. Id. 438. Vice President Al-Khasawneh in his dissent also points to Milogevit's state of mind as critical to the case. Given President MilogeviCs overall role in the Balkan wars and his knowledge, his specific relationship with General Mladit, and his involvement in the detail of the negotiations of 14 and 15 July, by that time he must have known of the change in plans made by the VRS command on 12 or 13July and consequently he must have known that they had formed the intent to destroy in part the protected group. I am convinced that that knowledge of the Respondent is proved to the necessary standard stated by the Court in its Judgment .... Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.) Judgment of Feb. 26, 2007) (Declaration of Judge Keith), 15, available at http:// vww.icj-cij.org/docket/files/91/13701.pdf (last visited Mar. 20, 2008). the dissent by the ICJ's vice-president made clear, methodology was not merely a matter of form but determined, in his view, the central substantive issues in the case. In Judge Al-Khasawneh's view, "had the Court followed more appropriate methods for assessing the facts, there would have been, in all probability, positive findings as to Serbia's international responsibility."4 Moreover, the flawed methodology adopted by the majority had a "profound" effect on the majority's ability to understand and appreciate the evidence before it.42 Given this context, my goal here is to explore the difficulties in adjudicating genocide cases and how the standards and methodology developed by the ICJ help define its relationship with the ICTY and with other international courts that may consider individual and state responsibility for genocide in the future. I will also consider how, in the future, such courts might better integrate their efforts to hold individuals and states qua states responsible for acts of genocide. Their respective methodologies must enable a court not only to adjudicate the specific claim before it, but to take into account, as necessary, the existence of a similar inquiry by another international court. II. DEFINING THE METHODOLOGY Historically, the issues raised by the ICJ's judgments have typically been fairly narrow and confined to a limited set of disputed facts. By contrast, the allegations against Serbia raised many contentious factual issues. In its effort to address the associated methodological complexities, the ICJ separated out three 41. ICJ GenocideJudgment (Dissenting Opinion of Vice-President Al-Khasawneh), supra note 32, 62. More specifically, Vice President A1-Khasawneh argued that: [T]he charge that genocide took place also in other parts of Bosnia and Herzegovina and that the FRY was responsible not only for its failure to prevent genocide but for being actively involved in it either as a principal or alternatively as an accomplice or by way of conspiracy or incitement would in all probability have been proved had the Court not adopted the methodology discussed below. Id. 1 31. 42. According to Vice President A1-Khasawneh: Such involvement is supported, in my opinion, by massive and compelling evidence. My disagreement with the majority, however, relates not only to their conclusions but also to the very assumptions on which their reasoning is based and to their methodology for appreciating the facts and drawing inferences therefrom and is hence profound. Id. 3. categories of problems: burden of proof, standard of proof, and the types of admissible evidence.43 A. Burden of Proof In apportioning the burden of proof, the ICJ reaffirmed its general rule that the applicant bears the burden of proof for establishing its case and that a party asserting a particular fact bears the burden of establishing that fact." Bosnia generally accepted this rule and provided the ICJ with a large volume of evidence in support of its claims. Bosnia also argued, however, for a variation of this general rule, especially given that the respondent had exclusive possession of highly probative evidence. Bosnia took the position that Serbia's refusal to produce unredacted copies of documents requested by Bosnia should have shifted the onus of proof to Serbia on several key issues.4 5 In particular, the documents in question were from the FRY's Supreme Defence Council ("SDC"), the highest political body with de jure authority over the Yugoslav army. It met regularly during the course of the conflict and was comprised of the presidents of Yugoslavia (Zoran Lili), Montenegro (Momir Bulatovit), and Serbia (Milogevi6).46 Minutes of the meetings were maintained, and the discussions between its members were stenographically recorded. The SDC minutes appear on their face to be of the type of evidence that the ICJ has traditionally favored. In Armed Activities on the Territory of the Congo, the ICJ stated that " [i] t will prefer contemporaneous evidence from persons with direct knowledge. It will give particular attention to reliable evidence acknowledging facts or conduct unfavourable to the State ....",4 The SDC 43. See ICJ Genocide Judgment, supra note 2, 203. The ICJ noted that despite increasing agreement between the parties, many of the allegations remained contested. See id. 202. 44. See id. 204 (citing Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1984 I.C.J. 392, 437 (Nov. 26)). 45. See id. 46. The Supreme Defence Council ("SDC") was the highest political body of the FRY having ultimate authority over the country's military personnel and resources. The council met regularly. The chief of the general staff, Momilo Perigit, regularly reported on the activities of the military, and the council voted on many significant issues related to the military, including the promotion of officers and the use of military resources. The documents included verbatim transcripts of the meetings as well as minutes summarizing the issues they considered and the actions they took. 47. Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda) documents contained not only a contemporaneous account of discussions among the most senior political figures, but also, as suggested by Bosnia's representatives, information unfavorable to the Serb position before the ICJ. According to the ICJ's test for attributability, the SDC was the type of de jure state organ whose conduct and intent could be attributed to Serbia. Although the SDC documents were taken into evidence by the trial chamber in the ICTY case against Milogevie, they were not made public. Nevertheless, some of the witness testimony provided indications of what those documents contained. For example, the trial chamber, in rendering its decision on a motion for ajudgment of acquittal, made several references to the SDC, indicating the documents' relevance to the charge of genocide against Milogevid.48 The chamber mentioned LiliC's testimony that the SDC formalized the payment of all officers in the Bosnian Serb army in November 1993. 4" The chamber also mentioned evidence that the Yugoslav army and the Serb leadership received operational reports from the Bosnian Serb army;50 that in some military documents the Bosnian Serb army and the Yugoslav army were referred to as "one army;"51 and that General Perigit, chief of the general staff of the Yugoslav army, regularly gave reports on the army's activities to SDC members.12 Bosnia, recognizing the relevance of these documents in the Milogevit trial, sought their admission in the proceedings before the ICJ. Bosnia argued that these documents provided contem(Judgment of Dec. 19, 2005), 61, available at http://www.icj-cij.org/docket/files/ 116/10455.pdf (last visited Jan. 26, 2008). 48. The Milogevie trial chamber, while compelling production of the SDC minutes, granted protective measures requested by Serbia that they not be made public. In light of this decision, the Miloevie trial chamber did not refer directly to the SDC minutes but instead referred to evidence given publicly about them by other witnesses. 149. See Prosecutor v. Milogevit, Case No. IT-02-54-T, Decision on Motion forJudgment of Acquittal, 1 260 (June 16, 2004); see also Merdijana Sadovit, Could Key Records Have Altered ICJRuling?,INST. FOR WAR & PEACE REPORTING, Mar. 9, 2007, http://www. iwpr.net/?p=tri&s=f&o=333964&apcstate=hsritri200703 (stating that "[t]estimonies of some witnesses at Milosevic's trial-including former Yugoslav president Zoran Lilicsuggested the SDC records would have been very valuable for Bosnia's case. Lilic said the SDC decided in 1993 to formalise support for officers of the Bosnian Serb Army, VRS by establishing a body within the Yugoslav army called Personnel Centre 30."). 50. See Prosecutor v. Milogevit, Case No. IT-02-54-T, Decision on Motion forJudgment of Acquittal, 258 Uune 16, 2004) (citing the testimony of General Wesley Clark). 51. See id. 273. 52. See id.1 260. FORDHAMINTERNATIONAL LAWJO URNAL poraneous evidence of the thinking of FRY's most senior leaders, which was of "direct relevance to winning or losing the present case." 53 Serbia resisted, however, and provided only those portions of the documents that Serbia's co-agent claimed had not been "classified" by the SDC and the Council of Ministers of Serbia and Montenegro as "a matter of national security interest. 54 In the face of Serbia's steadfast refusal to produce the documents, Bosnia requested that the ICJ exercise its authority under Article 49 of the ICJ's Statute and order production of the unredacted versions of the SDC documents, 55 but the ICJ declined to do so. Though the ICJ could have ordered that the documents be produced, it has no authority per se to physically compel such production. Its only recourse is to formally take into consideration the refusal as provided for in Article 49 of the ICJ's Statute.5 6 For example, in the Minquiers and Ecrehos case between the United Kingdom and France involving competing claims of sovereignty over a group of islets and rocks in the Minquiers and Ecrehos group (off the coast of Jersey), the United Kingdom sought to rely on a judgment from the Royal Court of Jersey, issued in 1692. However, in view of the United Kingdom's inability to produce the judgment, the ICJ stated that "[a]s these documents are not produced, it cannot be seen on what ground the Judgment was based. It is therefore not possible to draw from this Judgment any conclusion supporting the British claim profound influence over the Bosnian Serb political and military authorities."2 1 7 In support of this conclusion, the chamber referred to the testimony of Milan Babi, the president of the Serbian Krajina, who was alleged to have been a member of the joint criminal enterprise with Milogevi; 2 18 of BorislavJovi , one of MilogeviC's closest political allies in the Communist Party of Yugoslavia, who testified that "[t]his period of our history was marked, without any doubt, by [the Accused]. In every sense, he was the key figure, the main actor in this Serbian tragedy;"2'19 and of Peter Galbraith, the American ambassador to Croatia, who believed Milogevit was "the architect of a policy of creating Greater Serbia [the goal to unite Serbs living throughout several states of the former Yugoslavia into a single enlarged Serb state] ."220 The trial chamber also considered evidence of Milogevi6's own public statements and actions. As recalled by the chamber, Milogevit stated on January 15, 1991, that any dissolution of Yugoslavia that resulted in Serbs living outside a unified state was unacceptable. 22 1 Shortly thereafter, on March 16-months before the outbreak of the conflict in Bosnia-MilogeviC publicly urged Serbs throughout the former Yugoslavia to unite, and ordered the mobilization of special police forces to defend the interests of Serbs living outside Serbia-an unequivocal admission that forces under his control and authority were sent into Bosnia.222 In the same month, at a secret meeting in Karadjordjevo, Milogevit and Tuctman, the president of Croatia, agreed to di2008] vide Bosnia along ethnic lines and to annex large portions of it to Croatia and Serbia, creating the possibility that Muslims could live in an enclave between them.2 2 3 In July 1991, Babie, Karad~ie;, and Milogevi6 had a conversation in which Karad~i6 claimed he would chase Muslims into the river valleys in order to link up Serbs living in Bosnia. 224 The chamber relied on the evidence of Hrvoje Sarinic (senior politician and aide of Tudman) that on November 12, 1992, Milogevit told him, "I am telling you frankly that with Republika Srpska in Bosnia, which will sooner or later become part of Serbia, I have resolved ninety percent of Serbia's national question." 225 In this context, Milogevi6 manipulated the Serbian media to further nationalist interests with propaganda, severely limiting independent media 22 6 outlets. The trial chamber also took into account the testimony of two U.N. officials. David Harland, the U.N. civil and political affairs officer in Sarajevo, and Charles Kirudja, a delegate of the special representative of the U.N. secretary-general in Belgrade (who, in this capacity, had approximately six meetings with Milogevi6). Between 1993 and 1999, as established through Harlan's evidence, Serbia provided an uninterrupted, base level of support to Bosnian Serbs, including the Bosnian Serb Army.227 Kirudja was struck by MilogeviC's command of the detail and knowledge of the matters discussed at their meetings. There was no need to meet with the FRY President at the time Zoran Lili -it was necessary only to meet with Milogevi 2 21 Kirudja referred to a report that he wrote on May 16, 1995, recording his contemporaneous impression that Milogevi6 played a "solo role in the negotiations" sponsored by the U.N. in an attempt to end the conflict.229 Harland testified that when U.N. representatives found themselves at an impasse in their direct negotiations with Bosnian Serb leaders, they would go to Belgrade to negotiate directly with Milogevit, who could bring about 223. Prosecutor v. Milogevit, Case No. IT-02-54-T, Decision on Motion for Judgment of Acquittal, 1 252 (June 16, 2004). 224. Id. 253. 225. Id. 254. 226. Id. 255. 227. See id. 258. 228. See id. 278. 229. Id. FORDHAMINTERATIONAL LAWJOURNAL results in Bosnia.230 At the meeting called on April 22, 1994 to deal with an impending crisis in Goraide, Milogevi6, in the presence of U.N. officials, directed KaradMC to remove obstacles that had been placed in front of a U.N. humanitarian aid convoy in Rogatica; KaradM complied, and the obstacles were removed.23 1 The chamber referred to General Wesley Clark's testimony that during a meeting that he and Ambassador Richard Holbrooke had with MilogeviC, Holbrook asked Milogevit whether he should deal with him or directly with the Bosnian Serb leaders. MilogeviC replied, "with [me] of course. 2 3 2 During other negotiations Milogevi6 mapped out his preferred way of implementing an agreement that he unilaterally made with the delegation-namely, to present the agreement as a referendum in Serbia proper. When they asked MilogeviC why he would call a referendum in Serbia proper to vote on an agreement pertaining to Bosnia, Milogevi6 stated that Bosnian Serbs would obey the will of the Serb people.233 General Clark also noted that during the Dayton peace talks Milogevi6 and he reviewed computerized topographical maps of Bosnia while negotiating territorial boundaries in Bosnia. Clark testified that MilogeviC had an intimate knowledge of all the contested areas in Bosnia and was -able to make binding commitments regarding Bosnian territory unilaterally and without consultation with the Bosnian Serb representatives.234 When Clark was having difficulty getting the Bosnian Serb delegates to sign schedules and subsidiary agreements, Milogevi6 told him that his initials were sufficient to bind the Serb side, and he went on to promise that he would obtain the signatures of the other delegates later.235 In finding that there was sufficient evidence upon which a trial chamber could convict Milogevi6 of genocide, the trial chamber also reviewed evidence illuminating the close relationship between the Yugoslav and the Bosnian Serb armies. The trial chamber referred to evidence that the "Bosnian Serb military emphasized that the chain of command really ran to Belgrade. ' 236 The chamber recalled the testimony of General Phillipe Morrillon, commander of U.N. peacekeepers in Bosnia, that he "was absolutely convinced that Belgrade continued to exercise its authority on Ratko Mladi. ''237 The chamber referred to a cease-fire agreement brokered by Secretary of State Cyrus Vance and Lord Carrington. The agreement, entitled "Cessation of Hostilities Agreement," called for an end to hostilities in Croatia and was signed by MilogeviC in November 1991. Ambassador Herbert Okun, who participated in the negotiations that led to this cease-fire and witnessed the signing, recalled that the international negotiators understood MilogeviC to have sufficient authority and control over paramilitary forces and irregular troops to be able to enforce his promise that they would cease hostile activities. Okun relayed how Milogevi6, true to his word and signature, was able to bring a halt to hostile acts by Serb paramilitary and irregular units and that such cessation lasted for some period of time afterward.238 The Miloevi( trial chamber also relied on evidence of the logistical and material support that Serbia provided the Bosnian Serbs. A report dated September 1992, signed by Mladie, recounted how the Yugoslav Army, when it officially withdrew from Bosnia in the spring of 1992, left Bosnia Serbs with an essentially complete army fully staffed and fully equipped. 23 9 The chamber referred to the recorded minutes of the fiftieth session of the Republika Srpska assembly held in April 1995, just three months before the massacre in Srebrenica. In that session, Mladi reported that over the course of the conflict, 89.4% of the 9185 tons of infantry ammunition consumed by the Bosnian Serb army, 34.4% of the 18,151 tons of artillery ammunition, and 52.4% of the 1336 tons of anti-aircraft ammunition was provided by the Yugoslav army.2 4 ° When Milogevi6 commented on the level of support provided the Bosnian Serbs at the Third Congress in 1996, he stated: As regards the resources spent for weapons, ammunition and other needs of the Army of Republika Srpska and the Republic 236. Id. 258 (quoting David Harland, U.N. Civil Affairs and Political Affairs Officer in Sarajevo from 1993 until 1999). 237. Id, 268. 238. See id. 1 275. 239. See id. 259. 240. See id. 261. of Serbian Krajina, these expenditures constituted a state secret and because of state interests could not be indicated in the Law on the Budget, which is a public document. The same applies to the expenditures incurred by providing equipment.., for the security forces and special anti-terrorist forces in particular... and this was not made public because it was a state secret, as was everything else that was provided for the Army of the Republika Srpska.2 4 1 With respect to cooperation between the Yugoslav and Bosnian Serb armies, the trial chamber referred to the testimony of Dr. Michael Williams, the United Nations Protection Force Director of Information for Yasushi Akashi, the U.N. special representative between 1994 and 1995, and to their conclusion that Serbs had access to newly improved radar and air defense equipment in Sarajevo and northwestern Bosnia.24 2 The chamber recalled how Clark relayed to General PerigiC, chief of staff of the Yugoslav Army, his conclusion that Perigi6 was allowing the Bosnian Serb Army to receive radar and air defense information directly from Yugoslavia's air defense systems, and cautioned him to disconnect the two air defense systems.243 The trial chamber relied on evidence that until February 28, 2002, the salaries of all officers of the Bosnian Serb army were paid by the Yugoslav Army through an administrative unit, the "30th Personnel Centre," established for that purpose. 2 44 The chamber recounted the testimony of a radar control officer in the Bosnia Serb Army during the war: he received no compensation or benefits from the Bosnian Serb Army, but only from the 30th Personnel Centre. 245 This soldier, using the pseudonym B127, described how despite his regular presence in Bosnia, the only identification that he was issued between 1992 and 1995 was that of an officer of the Yugoslav Army. It was not until after the Dayton Peace Accords in 1995 that he was first issued a separate identification card for the Bosnian Serb Army and instructed to show it to any international forces that requested identifica241. Id. 262 (quoting exhibit no. 427, tab 3, at 2 (statement by Milogevie regarding a ruling of District Court in Belgrade on his detention, dated April 2, 2001)). 242. Id. 243. See id. 244. Id. 260. 245. See id. 2008] tion.246AAntensother soldier, who appeared under the pseudonym B1804, testified that although he served in Bosnia in a Bosnian Serb Army unit, he was considered a member of the Yugoslav Army. The Yugoslav Army paid this soldier and other members of the unit, provided them with medical care, and made decisions regarding their promotion (upon the recommendation of their superiors in the Bosnian Serb Army, who themselves were members of the Yugoslav Army attached to the 30th Personnel Centre) .247 The trial chamber referred to the prosecution's military expert, who testified about formal military plans drawn up jointly by the Bosnian Serb and Yugoslav armies, 24 and provided details about a resupply operation, known as the "Izvor" plan. The chamber referred to the evidence of a military analyst who reviewed a large number of documents in the prosecution's evidence collection-many documents captured by Bosnian Federation forces from Bosnian Serb Army command posts. A number of these documents described a close working relationship between the two armies. This analyst also pointed to documentary evidence of the Yugoslav Army's direct involvement in the Bosnia conflict in eastern Bosnia in 1993 and 1995, in Sarajevo between 1993 and 1994, and in Western Bosnia in 1994.249 One soldier, B-174, from the Yugoslav Army candidly testified about his direct participation in serious crimes committed in Bosnia. He described a Yugoslav Army operation in which he and his unit crossed into Bosnia in January of 1993. Before crossing the border they were ordered to remove any patches on their uniforms that would identify them as members of the Yugoslav Army, and to replace them with Bosnian Serb Army patches (which they were given). Once across the border, they were joined by members of the Yugoslav Army's 63rd Parachute Brigade, and together they launched an attack on the Bosnia Muslim-majority village of Skelane, near Srebrenica. He described in detail how houses and farms were set on fire to frighten people from their homes. These people fled into a horseshoe formation created by the Yugoslav troops just outside the village. As 246. See id. 9 269. 247. See id. 9 264. 248. See id. 270. 249. See id. 99 270-72. the frightened people fled into the hollow of the formation B174 and his unit opened fire on them with automatic weapons. He described one particular member of his unit who did what other Yugoslav soldiers would not-execute the children by slicing their throats with a knife.25 ° In assessing MilogeviCs knowledge of the crimes in Bosnia, the trial chamber referred to evidence that Milogevie demanded that he be kept informed of all that was going on.251 The chamber referred to a member of the "Contact Group," who said that he saw Milogevi6 and Ratko Mladi in Serbia on July 7, 1995, just before Srebrenica fell. Four days later a code cable to Milogevi stated that "the [Bosnian Serb Army] is likely to separate the military-age men from the rest of the population."2 52 This cable arrived prior to the time that the Krstie appeals chamber determined that the dolus specialis of genocide was clearly established. The Milokevie trial chamber recalled the. pointed question that General Clark put to Milogevi6 regarding why, if he had such influence over Bosnian Serbs, he allowed Mladie to commit the crimes he did at Srebrenica. Milogevi6 replied, "Well, General Clark, I told him not to do it but he didn't listen to me.1"253 Clark recounted how he was stunned by this admission because it demonstrated Milosevic's foreknowledge of Mladi's plans for the male Muslim population of Srebrenica.254 After reviewing the evidence produced at trial, the trial chamber concluded: [T]hat there is sufficient evidence that genocide was committed in BrC6ko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Klju6 and Bosanski Novi and ...that there is sufficient evidence that the Accused [Milogevi6] was a participant in a joint criminal enterprise, which included the Bosnian Serb leadership, the aim and intention of which was to destroy a part of the Bosnian Muslims as a group. 255 While this determination by the trial chamber carries none of the weight of a final judgment regarding the evidence, it does indicate that there was sufficient evidence for a reasonable trial chamber to potentially convict Milogevi6 of genocide. Given the 250. See generally id. 263. 251. See id. 285. 252. Id. 284. 253. Id. 280. 254. See id. 255. Id. 1 289. 2008] similarity between the issues in the Miloevie case and Bosnia's claim of genocide before the ICJ, this body of evidence had similar potential for the ICJ case. For the reasons articulated earlier-specifically, with respect to the different standards of proof involved-the ICJ decided to place no reliance on the findings of the Miloevie trial chamber in its 98 bis decision. 56 However, given the Milogevi6 trial chamber's finding that there was sufficient evidence upon which a court could find Milogevie guilty of the crime of genocide, and given the parity between the Miloevid case and the ICJ case, a thorough inquiry into Bosnia's claims before the ICJ required the ICJ to examine the evidence referred to in the Miloevie 98 bis decision to adjudicate the case before it. Since an ICTY trial chamber, after a full hearing of the prosecution evidence and cross-examination by Milogevie, determined that there was ample evidence upon which a trial chamber could make a finding directly relevant to the ICJ inquiry at a standard equivalent to the ICJ's articulated standard, the ICJ should have conducted its own examination of this evidence. Such a review was all the more compulsory in view of the Miloevie trial chamber's finding that the evidence could establish not only that MilogeviC, by himself, could be convicted of the crime of genocide, but that he was a member of a joint criminal enterprise comprised of other senior members of the FRY government 257 similarly engaged in genocidal crimes against the Bosnian Muslim population. The Milokevi 98 bis decision and the ICJ's failure to evaluate that body of evidence bring into focus the different strengths and weaknesses of their respective efforts to enforce the prohibitions of the Genocide Convention. A body of evidence that could lead a reasonable trier of fact to conclude beyond a reasonable doubt that the head of state of the respondent had committed 256. Interestingly, the Court does adopt the Milosevie trial chamber's findings regarding conditions at the Manjata camp. ICJ Genocidejudgment, supra note 2, 315 (quoting Prosecutor v. Milogevit, Case No. IT-02-54-T, Decision on Motion for Judgment of Acquittal, 178 (June 16, 2004)). 257. The Milogevie indictment named the following people as members of the joint criminal enterprise: Radovan Karadi , Momcilo Krajignik, Biljana Plavgi, Ratko Mladi6, Borisav Jovi6, Branko Kogfit, Veljko Kadijevi , Blagoje Adlik, Milan MartiV, Jovica Stanisit, Franko SimatoviC, Radovan Stojicic, Vojislav Segelj, and Zeljko Ra~natovie. See generally Prosecutor v. Milogevit, Case No. IT-02-54-T, Indictment (Nov. 22, 2001). the crime of genocide is of major import. Yet the ICTY's efforts to adjudicate the criminal responsibility of an individual were thwarted by the untimely death of the accused, and the ICJ's efforts to determine state criminal responsibility were thwarted by its inability to adjudicate issues of individual criminal responsibility. The world is left without a final adjudication, without a final judicial assessment of evidence that could support a finding not only that Milogevie was guilty of genocide but that Serbia bore criminal responsibility as well. The fact that the ICJ did not, and perhaps could not, properly assess that body of evidence highlights its limited capacity to adjudicate claims under the Genocide Convention. III. INTEGRATING THE MANDATE AND METHODOLOGIES OFINTERNATIONAL COURTS The Bosnia genocide case was the first time that the ICJ was called upon to adjudicate a claim under the Genocide Convention. Although the ICJ had the benefit of the ICTY's parallel work adjudicating the responsibility of senior individuals, the work of that tribunal, with the death of MilogeviC, was incomplete and left a gap that the ICJ could fill only by engaging in its own determination of the core factual and legal issues-issues that the Milogevie trial and appeals chambers would have resolved with the precision of a criminal process. Before considering the relationship between the ICJ and other international criminal tribunals, it is worth giving separate attention to the ICJ's legal and practical capacity for adjudicating cases involving the culpable responsibility of particular individuals. The ICJ's legal authority to make findings of fact and law with respect to whether senior political leaders have committed genocide can arise only from the ICJ's Statute and the referral clause of the Genocide Convention. The ICJ's interpretation of the Genocide Convention that a state, as a state, can perpetrate the crime of genocide is distinct from the question of whether the ICJ can, in the course of adjudicating state responsibility, properly make determinations of the individual responsibility of senior state officials. Article 9 of the Genocide Convention, which gives the ICJ competence over disputes arising out of the Genocide Convention, does not explicitly refer to the adjudica2008] tion of criminal responsibility-whether individual or state.2 58 While the Genocide Convention does define the essential elements of genocide and makes clear that senior political leaders and constitutional rulers are not immune from prosecution for genocide,2 5 9 it contains no explicit provision for adjudicating the crime itself and instead leaves to the contracting parties the task of devising their own mechanisms for prosecuting and punishing those who commit genocide. The Genocide Convention also leaves it to them to decide how best to incorporate the prohibitions embodied in the Genocide Convention into their national criminal justice systems (consistent with their own constitutions) .260 It is against this background that the ICJ decided that its own legal competence included the ability to independently determine issues of individual criminal responsibility in the process of adjudicating state criminal responsibility. While it recognized the value of the work conducted by the criminal tribunals, the ICJ did not acknowledge either a legal or practical dependence on them. The ICJ, without setting out a legal basis, granted itself "the capacity" to make "final determinations" of the mens rea of persons alleged to have committed crimes-a task ordinarily reserved for criminal courts.26 ' The ICJ itself created this new competence to engage in a juridical function not expressly or implicitly provided for in the Genocide Convention.2 62 258. Article 9 of the Genocide Convention provides: Disputes between Contracting Parties related to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute. Genocide Convention, supra note 1, art. 9. 259. Article 4 of the Genocide Convention provides, in full: "Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals." Id. art. 4. 260. Article 5 of the Genocide Convention provides: "The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III." Id. art. 5. 261. See ICJ Genocide Judgment, supra note 2, 181. 262. Instead, the Court adopted a position according to which it can itself make a determination as to whether or not genocide was committed without a distinct decision by a court or tribunal exercising criminal jurisdiction. The The Genocide Convention is clear regarding which courts should be empowered to hear genocide cases. With respect to establishing criminal culpability, Article 6 provides that individual criminal responsibility "shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction. '"26' The phrase an "international penal tribunal" is a reference to the work of the International Law Commission, which at the time was engaged in the task of trying to establish an international criminal court-an effort that regrettably stalled during the Cold War.2 64 This express referral of any adjudication of the Genocide Convention's criminal prohibitions to national and international penal courts is an implicit recognition that the specialized methodology and procedural protections of penal courts are essential to adjudicating criminal responsibility for genocide. The referral in Article 9 of the Genocide Convention to courts other than the ICJ is an express recognition of the ICJ's inability to properly inquire and adjudicate issues of individual responsibility. 265 It is likely, however, that the drafters failed to consider that establishing state responsibility for genocide necessarily requires some determination of whether senior state officials had, as individuals, violated the 2008] prohibitions of the Genocide Convention. And because adjudicating state responsibility for genocide requires adjudicating issues of individual criminal responsibility, and because the ICJ lacks the capacity to properly adjudicate such issues, the ICJ would inescapably be drawn into a relationship of dependency in relation to courts engaged in the adjudication of individual guilt. Even if the ICJ's assumption of the difficult task of adjudicating issues of individual criminal responsibility rested on firmer legal footing than suggested above, its procedures make it ill suited for the task. The unique procedures of a criminal trial are designed not only to protect the rights of an individual accused of a crime, but to define a methodology that has been historically proven to yield accurate determinations of whether crimes have been committed. The ICJ's procedures, designed for a different purpose, are incapable of engaging in such a detailed inquiry or yielding as reliable a result. Having two international courts-one designed for resolving interstate disputes and one designed for adjudication of individual criminal responsibility-creates the potential that the two courts will reach inconsistent results. Had the ICJ made a determination "beyond doubt" that Milogevie possessed the dolus specialis of genocide and thus that Serbia, as a state, has perpetrated the crime of genocide, those factual/legal determinations would have almost complete parity with those of the ICTY and would have improperly transgressed upon the competence of that tribunal. Any "final determinations" regarding MilogeviCs mens rea (with respect to the genocidal acts perpetrated in Bosnia) prior to the final judgment of the Miloevi trial chamber would have created difficulties for the trial chamber; it is likely that the ICJ's would have conflicted in material ways with the trial chamber's judgment resulting from a more detailed inquiry. And if the judgments of the ICJ and the trial chamber had been inconsistent on the matter of Milogevie's commission of genocidal acts, the international community would rightly have been confused. The ICJ's serving as a venue for determining criminal responsibility seems incongruous with the ICJ's inability to initiate a case absent a formal complaint by a State Party. Consider, hypothetically, that the aggressor state perpetrating the genocide was completely successful and that the targeted group no longer existed. If another State Party did not initiate a claim on behalf of the targeted group, the ICJ would not have any jurisdiction itself to initiate a case (before itself) to assess the state's criminal liability.26 6 The ICJ, unlike a criminal tribunal with an independent prosecutor, could be shackled by its own procedures and be prevented from embarking on an inquiry into something as important as allegations that a state is perpetrating the crime of genocide. Once the inquiries were initiated before the two courtsand despite the similarity between the issues that the courts would face-their inquiries were largely shaped by the differences in their respective statutes. While the ICTY's statute created the office of an independent prosecutor to investigate claims made by parties on all sides of the conflict, the allegations before the ICJ were formulated by the parties to the conflict themselves in their claims and counterclaims. The burden of investigating and gathering evidence for the ICJ was not undertaken by a well-resourced independent office of the prosecutor but left to the two interested parties. The introduction of evidence in international criminal tribunals, while under somewhat more liberal rules of evidence than national systems, is still rigorous compared to the procedures employed by the ICJ.2 67 Despite the ICJ's status as the "world court," much of its procedure bears an air of informality, with parties engaging the process in "letters" (versus motions) culminating in oral hearings that lack many of the procedural and evidentiary formalities of a criminal trial in the ICTY.2 68 The ICJ does have, at least theoretically, some capacity to 266. Article 36 of the Convention provides, in relevant part: "The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force." Id. art. 36. "The Statute appears to presume that there will be, but not specifically to require that there should be, at least two parties to a contested proceeding." See C. WILFRED JENKS, THE PROSPEcrs OF INTERNATIONAL ADJUDICATION 125 (1964); see also SHABTAI ROSENNE, THE WORLD COURT: WHAT IT IS AND How IT WORKS 74 (1962). 267. It became apparent early on that it would be difficult if not impossible for the Court [ICJ] to assert anything approaching stringent rules of evidence relating to the substance of what was produced, and it has applied practically no rules of propriety or admissibility in connection with documentary evidence. The absence of rules restricting the length of documents has long been associated with the perceived freedom of sovereign states to present their cases before the Court howsoever they see fit. Highet, supra note 56, at 357. 268. ROSENNE, supra note 66, at 1381. 2008] secure the evidence necessary to decide issues of criminal culpability; several articles of the ICJ's statute enable it to obtain evidence for itself. The ICJ has the power to apply directly to governments who are not parties to serve notices upon persons in possession of evidence.2 69 It can require agents of the parties before it to produce documentary evidence 27 0 and can call upon the parties to produce evidence. 27' The ICJ can propri0 motu visit locations related to the case in order to obtain evidence itself.27 2 While in theory these provisions give the ICJ some of the mechanisms available to an international prosecutor or international criminal court to secure evidence, the ICJ's customary practice has been to exercise these powers infrequently and to depend upon the parties for the production of evidence.2 73 And while the ICJ has some authority to secure possession of evidence, it lacks many of the mechanisms found in national systems. 274 Even if the ICJ and ICTY had equivalent powers to secure evidence, some commentators have observed that the ICJ has been reluctant to fully engage in the task of finding facts. 2 75 Other commentators have suggested, instead, that the ICJ's capacity to establish facts is limited by its procedures and methods.2 76 The ICJ's work has generally not been thereby impeded, however, since many of its contentious cases have presented complex legal questions arising from a relatively simple set of facts. 2 7 7 In those cases in which factual determinations are made, they are most often made on the basis of indirect evidence.278 Some commentators have suggested that the ICJ would benefit from delegating the fact-finding component of its task to a commission designed for that purpose, thereby limiting itself to applying the law to the commission's factual findings.2 7 9 In her introductory remarks before reading a summary of the ICJ's judgment in the ICJ GenocideJudgment, the ICJ's president, Judge Roslyn Higgins, observed that allegations of genocide necessitated a detailed and challenging factual inquiry by the ICJ.28 ° In this case it was called upon to consider the state of the documents of the written proceedings or in the course of oral proceedings." Id. at 356 (quoting M. HUDSON, THE PERMANENT COURT OF INTERNATIONAL JUSTICE 1920-1942, at 565 (1943)). 277. "However, the natural subject-matter of the types of cases which have been presented before the Court-and the proof of the type of facts which constitute violations or breaches of international obligations-do not normally require detailed investigation into, or resolution of, difficult questions of fact." Id. at 372. 278. When one considers in particular the various affirmative determination of fact issues in the Nicaraguacase, it is noticeable how few of them were in fact decided by direct evidence of any kind . . . . This quick overview of factual findings made in the Nicaraguacase suffices to show how substantially the Court in reality relied upon indirect or inferential methods of proof such as admissions and failures to make specific denial, public knowledge supported by governmental publications, or notoriety of press reports which were not corrected by officials. Id. at 373-74 (citations omitted). 279. "Other ways of inducing governments to have recourse to adjudication may exist. One would be to promote the use of fact-finding commissions or commissions of enquiry confined purer to the facts of a case without entry upon the law." Sir Gerald Fitzmaurice, Enlargement of the ContentiousJurisdiction of the Court, in 2 THE FUTURE OF THE INTERNATIONAL COURT OF JUSTICE 461, 490 (1976); see also RUDOLPH L. BINDSCHEDLER, Report, JUDICIAL SETTLEMENT OF INTERNATIONAL DISPUTES 144 (1974) ("[I]t may be argued that it is preferable to submit a case to a special non-judicial body when the facts and their elucidation are paramount."). Finally, the Court could also consider modifying its Rules to provide for special masters for findings of fact, in a manner similar to U.S. Supreme Court practice in instances of its original jurisdiction. This would not be inconsistent with the Statute and could be based upon the unused provision for assessor contemplated by the statue and the Rules. Assessors could be combined with the use of experts (as in Corfu Channel) to effectively "shrink," the Court from its normally somewhat impressive dimensions and render the consideration of evidentiary matters more direct, precise, and controlled. Highet, supra note 56, at 372 (citations omitted). 280. This was an extremely fact-intensive case. The hearings lasted for two2008] mind of senior state officials. Such inquiries are not without precedent; in the past, the ICJ has had to consider what the intentions of senior state officials were.2 " In such cases, the ICJ looked to documentary evidence and public statements for evidence of the knowledge and intent of state officials with respect to boundaries,282 covert military activities,2"3 and the existence of maritime mines."' In all of these cases, the statements of senior state officials, while ultimately used to establish findings against the state, were not clear admissions of criminal responsibility. The precise and exacting requirements of the dolus specialis of genocide necessitate unequivocal statements by state officials indicating their genocidal intent. Anything less than a clear unequivocal statement, no matter how thinly veiled, would fall short of what is needed to establish genocidal intent. Although some state officials have, in the past, been surprisingly forthcoming about their genocidal intentions, it is unlikely that in our present world-in which several heads of state and other senior officials have already been tried before international criminal courtsthey will be so candid about their intentions. 2 ' Absent such an "It is no use for you to argue," Talaat answered, "we have already disposed of three quarters of the Armenians; there are none at all left in Bitlis, Van, and Erzeroum. The hatred between the Turks and the Armenians is now so inunequivocal public statement that was recorded in a way that renders its authenticity undisputed, the ICJ, in its effort to establish the mens rea of a state official, would have to rely on the testimony of witnesses. The calling of witnesses concerning matters of fact remains an unusual, though not unprecedented, occurrence in ICJ proceedings.286 Even if a sufficient number of such witnesses were called to testify, they would not be challenged by the person alleged to have made the statementsomething with significant implications for both the fairness and the accuracy of the proceedings. Citing the lack of involvement of the accused, the ICJ has declined to rely on a number of ICTY proceedings even when there has been significant judicial involvement in the process. The procedures provided for in the ICJ's statute and rules are noticeably different from those of a criminal tribunal in that they lack any of the procedural protections afforded those accused of crimes-protections that are common to most modern legal systems. Article 34(1) of the ICJ's statute provides that "[o]nly states may be parties in cases before the Court." This article makes clear that individuals whose conduct and mens rea are adjudicated by the ICJ (with a view toward establishing the responsibility of states) have no right of appearance before the ICJ. Those individuals may, indeed, be found to have perpetrated the crime of genocide without ever having had the opportunity to defend themselves against such allegations. It is difficult to contemplate a way in which the ICJ could fairly determine that a senior FRY leader participated in the crimes in Bosnia with the requisite dolus specialis absent a prior determination of that person's guilt by the ICTY or an opportunity for that person to appear before the ICJ to defend against such serious tense that we have got to finish with them. If we don't, they will plan their revenge. HENRY MORGENTHAUJR., AMBASSADOR MORGENTHAU'S STORY 337-38 (1918); see also Gary J. Bass, At Saddam's Trial, the Law IsJust Partof the Picture,WASH. PosT, Jan. 18, 2004, at B03. "Very few people in history would say publicly they were about to commit a genocide," says Dermot Groome, the prosecutor leading the Bosnia genocide case against Milosevic. Instead, Groome said, prosecutors try to show a pattern of targeted slaughter, "so that the chamber can infer that the only explanation for these acts was a genocidal intent." 286. SHABTAI ROSENNE, THE WORLD COURT: WHAT IT Is AND How IT WORKS 127 (1989). allegations. The ICTY itself has been reticent in issuing judgments that can be read broadly to implicate persons who were not before the Tribunal. The Krstie appeals chamber recognized this problem when it pondered why the trial chamber asserted that those perpetrating the crimes at Srebrenica possessed genocidal intent, but then failed to identify them. The appeals chamber suggested that the trial chamber recognized the unfairness of identifying someone in this way outside of a criminal trial and without an opportunity to confront the evidence.2 87 If a senior state official did so choose to meet such allegations against him or her and was granted an opportunity to do so, the court in question would be obligated to ensure that the procedural protections of the International Covenant on Civil and Political Rights and regional human rights instruments were observed. In undertaking the adjudication of issues of individual criminal responsibility, the ICJ conducted what amounted to a trial in absentia of senior state officials. While the ICJ cannot deprive senior state officials of their liberty, a judgment finding that a senior state official committed the crime of genocide would invariability have a harsh impact on that person. The ICJ-not being a criminal court but charged with the task of determining individual responsibility-cannot properly or fairly inquire into the states of mind of the senior officials whose states of mind were essential to the ICJ's determination.2 8 8 As such, the ICJ can only conduct its work after issues of their individual responsibility have been fairly established in a criminal trial. The ICJ should and must wait until such final judgments are rendered 287. 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. Krstie, Case No. IT-98-33-A, Judgment, 35 (Apr. 19, 2004). 288. However, nothing in Article IX suggests that the Court is empowered to go beyond settling disputes, relating to State responsibility and to actually conduct an enquiry and make a determination whether or not the crimes of genocide was committed. The Court simply cannot establish individual responsibility for the crime of genocide by persons capable of engaging a State's responsibility since it lacks criminal jurisdiction. In particular, by reason of the lack of criminal jurisdiction, the Court cannot establish the existence or absence of genocidal intent, since nothing in the Genocide Convention indicates that it deals with genocidal intent in any other sense than it being a requisite part, a mental element, of the crime of genocide. ICJ Genocide Judgment (Declaration of Judge Skotnikov), supra note 35, at 6. before it commences its work on the merits. To do otherwise is tcoouprltascein tphoesswibolrek coofnftlhicet IwCiJthaenadchotohtehreri.n2t9ernational criminal Unfortunately, because of the death of Milogevi6, the ICJ did not have the option of waiting for a judgment in the ICTY's Miloevi( case. That case was the first and only ICTY case to focus on the same central question of genocidal intent. The conflict in the former Yugoslavia was a series of complex crimes committed in a multitiered environment by multitudes of perpetrators not always sharing the same intent. In the context of Srebrenica, many actors contributed to the tragic events there. Against this sort of factual background, the ICTY has inescapably begun its work by examining the conduct of the perpetrators most immediately associated with the crimes and then continued upward toward those most responsible. 29 ° That is, absent documentary evidence of the type left behind by the Nazis indicating the involvement of senior officials in genocidal acts, prosecutors must necessarily begin by identifying the direct perpetrators and look upward on the ladder of ever-increasing responsibility to determine the identity of the central architects of the crimes. In the case of Srebrenica, the first ICTY conviction was of Erdemovi , who directly participated in the Srebrenica massacre and manned one of the machine guns outside the town. Building on what was learned from that case and on continued investigations, the next set of cases examined the culpability of the commanders present in the Srebrenica area: Krstie and Obrenovi(. Building on the work of those investigations, Milogevie was finally indicted for the crimes in Srebrenica in 2001, seven years after the ICTY was established. The Milogevie trial chamber would have been the first trial chamber to comprehensively examine the evidence relevant to the allegation that a senior Serb state official-namely, its president-was a participant in the crime of genocide. 2 1 289. "This kind of collision of course has not occurred in practice. However, this does not make the Court's failure to strike a proper balance under the Genocide Convention between the Court's jurisdiction and that of a criminal tribunal any lesser." Id. at 7. 290. See generally RicHARD GOLDSTONE, FOR HUMANITY: REFLECTIONS OF A WAR CRIMES PROSECUTOR (2000). 291. The Court recognized this fact: The Respondent has emphasized that in the final judgments of the Chambers of the ICTY relation to genocide in Srebrenica, none if its leaders have been Perhaps the ICJ had considered waiting until the Milo~evi6 case had reached its conclusion. A survey of the ICTY's cases reveals that its remaining cases are unlikely to have resulted in judgments that would have directly addressed the issues addressed in the ICJ GenocideJudgment. The trial chamber's judgment in the Milo~evie case with respect to the genocide charges in Bosnia would have been highly relevant and, given the ICJ's significant reliance on other ICTYjudgments, might well have been dispositive of the ICJ case. MilogeviC's death and the resulting termination of the case foreclosed that possibility. Of the other senior Yugoslav indictees awaiting trial, General Perigi6 and Jovica StanigiC, neither has been charged with genocide. Consequently, although the possibility exists that relevant findings of fact will emerge from the judgments in those cases, neither trial chamber has any obvious reason to deal directly with the question of the dolus specialis of genocide. It will prove helpful to return briefly to consider the Milorevi6 trial chamber 98 bis decision and the evidence it evaluated in the process. Judges making determinations under that rule do not assess the credibility and reliability of prosecution witnesses and exhibits. Instead, the judges consider that evidence in a favorable light to the prosecution. While the ICJ might have had the capacity to review the ICTY's evidence used to authenticate documentary evidence, witness testimony is different. Judges largely rely on their commonsense impression of witnesses to determine their credibility. In its 98 bis decision, the Milogevie trial chamber cited General Clark's recounting of a conversation with Milogevi6 in which he communicated his own advance knowledge of the crimes to be committed in Srebrenica. In its final judgment the trial chamber would have made specific findings with respect to Clark's credibility and reliability. Is it possible for the ICJ to reexamine all of the prosecution witnesses or to view the videotapes of the ICTY trial? This duplicative task would have consumed a great deal of the ICJ's time. The ICJ's own rules provide little guidance as to the evaluation of witness found to have been implicated. The Applicant does not challenge that reading, but makes the point that that issue has not been before the ICTY for decision. The Court observes that the ICTY has indeed not up to the present been directly concerned in final judgments with the question whether those leaders might bear responsibility in that respect. ICJ Genocide Judgment, supra note 2, 408. testimony. 292 Trying to make determinations of credibility in the absence of the witness is a speculative task that, when attempted with respect to core issues of a case, strains our conceptions of what judges can appropriately do when adjudicating such cases. Can the ICJ's failure to comprehensively review the Milo~evie evidence be traced to the ICJ's recognition that the task was impossible? The ICJ was ill equipped to engage in the type of indepth inquiry that a criminal court engages in routinely. Since none of the witnesses were being heard live, there was no opportunity for the ICJ to pose questions to the witnesses directly. For these and other reasons, it seems that the factual issues were more apt to be properly explored and more soundly adjudicated in the setting of an international criminal trial. The ICJ risked the delegitimizing effect of issuing a judgment under its proceedings that would potentially be undermined by the more comprehensive exploration of the same issues by an international criminal trial. In sum, while the ICJ can build upon the work of international criminal tribunals, it is unlikely that the ICJ can satisfactorily adjudicate such difficult issues independently. CONCLUSION The ICJ-in making its determination that a state, as a state, could perpetrate the crime of genocide, and in recognizing that a state's capacity to form genocidal intent exists only in the minds of senior officials capable of attaching state liabilitycommitted itself to engaging in an inquiry traditionally reserved for international criminal tribunals. The ICJ adopted a standard of proof equivalent to a criminal trial and placed upon the applicant essentially the same burden of proof as borne by an international prosecutor. In so doing, the ICJ aligned its work closely to that of international criminal tribunals. While the ICJ did not specifically undertake the task of adjudicating individual guilt, its final determination with respect to state criminal responsibility for genocide required that it adjudicate core issues of individual criminal responsibility identical to those faced by an interna292. "The Rules do not convey with any precision what system should be applied for the examination of witnesses and experts, nor do they contain anything on the function of the Court, beyond its general control." ROSENNE, supra note 66, at 1347. 53. ICJ Genocide Judgment, supra note 2 , 205 . 54. Id . 55. According to Bosnia's deputy agent: Serbia and Montenegro should not be allowed to respond to our quoting the redacted SDC reports if it does not provide at the very same time the Applicant and the Court with copies of entirely unredacted versions of all the SDC shorthand records and of all of the minutes of the same. Otherwise, Serbia and Montenegro would have an overriding advantage over Bosnia and Herzegovina with respect to documents, which are apparently, and not in the last place in the Respondent's eyes, of direct relevance to winning or losing the present case. We explicitly, Madam President, request the Court to instruct the Respondent accordingly . Id. According to Article 49 of the ICJ's Statute, "[t]he Court may, even before the hearing begins, call upon the agents to produce any document or to supply any explanations. Formal note shall be taken of any refusal." ICJ Statute, supra note 1, art . 49 . 56. See GERALD FITZMAURICE , THE LAW AND PROCEDURE OF THE INTERNATIONAL COURT OFJUSTICE 576-77 ( 1986 ) ; see also Keith Highet, Evidence andProofof Facts , in THE INTERNATIONAL COURT OFJUSTICE AT A CROSSROADS 355 , 364 (Lori Damrosch ed., 1987 ). 217. Id ., 257 . 218. Milan Babit was named as a member of the joint criminal enterprise in the Miloevi indictment . After pleading guilty to crimes against humanity, he testified in the MilogeuiW case as well as in other ICTY cases . See Prosecutor v. Milogevit, Case No. IT02 -54-T, Second Amended Indictment, 7 ( July 28, 2004 ). 219. Prosecutor v. Milogevit, Case No. IT-02-54-T, Decision on Motion for Judgment of Acquittal, 256 Uune 16 , 2004 ). 220. Id . 249 ( quoting testimony of Ambassador Galbraith) . 221. See id. 251 . 222. See id. 250 . In paragraph 389 of the ICJ Genocide Judgment, the Court considered whether the Scorpions who were captured on video executing six men and boys from Srebrenica were a dejure organ of the State . The court noted that: Applicant has claimed that incorporation occurred by a decree of 1991 (which has not been produced as an Annex) .... The Court observes that, while the single State of Yugoslavia was disintegrating at that time, it is the status of the "Scorpions" in mid-1995 that is of relevance to the present case . ICJ Genocide Judgment, supra note 2 , 389 .


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Dermot Groome. Adjudicating Genocide: Is the International Court of Justice Capable of Judging State Criminal Responsibility?, Fordham International Law Journal, 2007,