The 2006 KSU High School Model United Nations

Model International Court of Justice

 

 

Applicant:       Bosnia and Herzegovina

Respondent:   Serbia and Montenegro (formerly Yugoslavia)

 

Issue:  Is the government of Serbia and Montenegro in breach of its obligations under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide?

 

Introduction:

 

On 20 March 1993, the Republic of Bosnia and Herzegovina (hereinafter called “Bosnia and Herzegovina”) instituted proceedings against the Federal Republic of Yugoslavia (now known as “Serbia and Montenegro”) in respect of a dispute concerning alleged violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter called "the Genocide Convention").  The applicant invoked Article IX of the Genocide Convention as the basis of the jurisdiction of the Court.

 

Background:

 

Bosnia and Herzegovina first appears as an identifiable political entity in the 12th century.  From the 12th  century to the 15th century internal struggles dominated the political landscape as rival families vied for political control.  In the late-15th Century, Ottoman sultan Mehmed Fatih invaded and conquered Bosnia and Herzegovina, incorporating it into the Ottoman Empire.  Ottoman Turks would control the territory for the next 400 years until their defeat in the Russo-Turkish War (1877-1878).  At the Congress of Berlin (1878) convened at the end of the war Ottomans were forced to accept transfer of administrative control of Bosnia and Herzegovina to the Austro-Hungarian Empire.  In 1908, the Austro-Hungarian Empire formally annexed the territory.  As a result, relations with Serbia, which had claims on Bosnia and Herzegovina, became embittered. The hostility between the two countries climaxed with the assassination of the Austrian archduke Franz Ferdinand by a Serbian nationalist.  The event precipitated the First World War.  Following the defeat of Austria-Hungary in the First World War, Bosnia and Herzegovina was annexed to Serbia as part of the newly formed Kingdom of Serbs, Croats and Slovenes.  This entity would be later be renamed the Kingdom of Yugoslavia.

 

Control of Bosnia would again shift shortly after the outset of World War II.  Following the Axis invasion of Yugoslavia, Germany and Italy ceded control of the territory to the Nazi-puppet state of Croatia.  Following the end of the war, Bosnia and Herzegovina was incorporated into a reconstituted Yugoslavia – now under communist control.  The Socialist Federal Republic of Yugoslavia experienced a period of relative political stability until the 1980s.  Following the death of Yugoslav leader Marshal Tito in 1980, however, the country began to splinter along ethno-religious lines.  The fracturing to the country accelerated in the late-1980s following the fall of the Iron Curtain and the collapse of the Soviet Union. 

 

Slovenia and Croatia were the first Yugoslav republics to hold free elections - in 1990.  In both cases non-communist governments came to power.  These governments’ objective was to re-form Yugoslavia into a loose confederation of states and, should that fail, secede from the union altogether.  When efforts to negotiate with Serbia over the constitutional arrangement failed, Slovenia and Croatia seceded.  Meanwhile, the people of Bosnia and Herzegovina held their own elections.  The outcome was a multi-ethnic government comprised of political parties representing Serbs, Croats and Muslims.  At the head of the government was Alija Izetbegovic.  In December 1991, the Izetbegovic government declared his intention to seek independence from Yugoslavia and asked the European Community for formal recognition.  The move was strongly opposed by the Bosnian-Serb Serbian Democratic Party.  They declared that if Bosnia and Herzegovina continued to seek independence, Serbia regions within Bosnia and Herzegovina would themselves secede in order to stay a part of Yugoslavia.  In early 1992, the question of independence for was put to a national referendum within Bosnia.  Of the 63.4% of the eligible population who voted, 99.4% approved independence.  However, ethnic Serbs, who accounted for approximately 31% of the population, boycotted the vote. 

 

On 6 April 1992, the European Community formally recognized the Republic of Bosnia and Herzegovina.  The day following the recognition of the Republic of Bosnia and Herzegovina, Serbian paramilitary and militia forces, acting along with elements of the Serb-dominated Yugoslav army, announced the creation of the Serbian Republic of Bosnia and Herzegovina.  A series of armed attack on Bosnian-Herzegovinian Croats and Bosniaks followed.  The conflict received widespread international attention when the capital city of Bosnia and Herzegovina, Sarajevo, came under sustained attack from Serb forces. 

 

The United Nations responded by dispatching a peacekeeping force to provide humanitarian assistance.  It is during this time period that Serbian forces are accused of executions, gang rapes, beatings and the torture of prisoners in Serb-run detention camps.  In August of 1992, Bosnian diplomats released a United Nations memorandum in which peacekeepers stationed in Croatia stated that Serb militia forces in Bosnia and Herzegovina had intensified “ethnic cleansing” operations in the area.  The announcement was followed in December by a vote in the United Nations General Assembly to pass Resolution 47/121 in which the members stated inter alia that the “ethnic cleansing against the Bosnian people…is a form of genocide.”

 

 

Some Questions to Consider:

 

·         How should terms “national, ethnical, racial or religious group” be defined for the purposes of application of Article II of the Genocide Convention?

·         Do the actions during the conflict constitute genocide as outlined in the Convention on the Prevention and Punishment of Genocide?  Were the alleged actions planned in advance with the objective of destroying Bosnian Muslims?  Are these actions sufficient to constitute a breach of the Genocide Convention?

·         Did the Serbian military and paramilitary forces in Bosnia and Herzegovina operate under the direction of and assistance from Serbia and Montenegro’s government?  Which of the alleged actions can be attributed to the government of Serbia and Montenegro?

·         What constitutes the intent of a state – actual government policy and the actions of the government, or the impact of their actions? 

 

 

Information Resources:

 

·         ICJ Case (Bosnia and Herzegovina vs. Serbia and Montenegro)  (http://www.icj-cij.org/icjwww/idocket/ibhy/ibhyframe.htm)

·         ICJ Case (Croatia vs. Serbia and Montenegro) (http://www.icj-cij.org/icjwww/idocket/icry/icryframe.htm)

·         William Schabas.  2000.  Genocide in International Law.  New York: Cambridge University Press.

·         James Ridgeway and Jasminka Udovicki, eds.  1997.  Burn This House: The Making and Unmaking of Yugoslavia.  Durham, NC: Duke University Press.

·         Steven Burg and Paul Shoup.  1999.  The War in Bosnia-Herzegovina: Ethnic Conflict and International Intervention.  New York: M.E. Sharpe.

 

 

Treaties and Other Legal Instruments to Consider:

 

·         Charter of the United Nations (1945)  (http://www.unhchr.ch/html/menu3/b/ch-cont.htm)

·         Statute creating the International Court of Justice (1945)  

(http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ibasicstatute.htm).

·         Convention on the Prevention and Punishment of the Crime of Genocide (1948)  (http://www.unhchr.ch/html/menu3/b/p_genoci.htm)

·         Geneva Conventions (1948), including Protocol I (1977)  (http://www.genevaconventions.org/)

·         United Nations General Assembly Resolution 47/121  (http://www.un.org/documents/ga/res/47/a47r121.htm)

 

Other Resources:

 

Basic International Law Texts:

 

·         Ian Brownlie.  2003.  Principles of Public International Law.  6th Edition.  New York: Clarendon Press.

·         Malcolm Shaw.  2003.  International Law.  5th Edition.  New York: Cambridge University Press.

·         Peter Malanczuk.  2002.  Akehurst’s Modern Introduction to International Law.  8th Edition.  London: Routledge.

 

General Interest International Law Websites:

 

·         United Nations Treaty Collection (General)

(http://untreaty.un.org/English/treaty.asp)

·         United Nations International Law Commission Treaties & Conventions

(http://www.un.org/law/ilc/convents.htm)

·         Avalon Project at Yale University

(http://www.yale.edu/lawweb/avalon/avalon.htm).