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The Emergence of Evidence Opens the Door for Another Lawsuit by Bosnia and Herzegovina Against Serbia

JURIST Guest Columnist Fahira Brodlija of The University of Pittsburgh School of Law, LLM Class of 2017, discusses the implications of revising a lawsuit between Bosnia and Herzegovina and Serbia...

According to the former prosecutor of The Hague International Criminal Court (ICC), Geoffrey Nice, there is new evidence based on which Bosnia and Herzegovina could seek the revision of its lawsuit against Serbia which was brought before [JURIST report] the International Court of Justice (ICJ) in 2007. In his words:

"Bosnia and Herzegovina lost its lawsuit due to the lack of evidence, but since 2007, new evidence has emerged which had not been used previously."

On February 26, 2007 the ICJ rendered a judgment in re Bosnia and Herzegovina v. Serbia and Montenegro [PDF], deciding on the claim of Serbia's violation of the Convention on the prevention and Punishment of Genocide. After 14 years of procedure, the ICJ found that the government authorities of Serbia did not (in official capacity) perform activities which constitute genocide in Bosnia and Herzegovina. Therefore, the Court found that according to international law, Serbia was not liable for genocide in Srebrenica in July of 1995, nor did it act in conspiracy with the intention of committing genocide.

The ICJ did determine Serbia's violations of the Convention on Genocide in its failure to fulfill its international obligation to prevent genocide. Therefore this judgment referred to the failure to perform a duty which was undertaken by signing the aforementioned Convention. According to international law, Serbia was under strict obligation to perform actions and measures in order to prevent genocide, and it could not derogate from this obligation.

In the political discourse through the year following this judgment, the possibility of the revision of this lawsuit has been brought up by Bosniac parties. However no specific steps were taken, mostly due to the lack of strong political will. On the other hand, the international community (most notably the US and the EU) did not get involved in this issue in order to prevent inflammatory nationalistic backlash. The Serbian member of the Presidency, Mladen Ivanić has recently stated that even if Bosnia and Herzegovina was able to fulfill the onerous requirements to re-open the case before the ICJ based on new evidence, the decision to do so would have to come from the Presidency, for which he would not give his consent. Therefore, the Court would not even be approached for this matter.

In light of the information on the new evidence in this case, it would be interesting to see the new conclusions drawn by the ICJ and the potential consequences of a new outcome different from the one in 2007. However, it is most likely that this will be another missed opportunity by Bosnia and Herzegovina to obtain justice at the international level due to the lack of political consensus and efficiency of the competent authorities. The statute of limitation for a new claim lapses February 26, 2017.

Fahira Brodlija is a current LLM student at the University of Pittsburgh School of Law and graduated from the Sarajevo Faculty of Law in June 2016. Her main fields of interest are international arbitration and commercial law which she developed through the International Vis Moot competition in Vienna where she was involved both as a participant and coach. She is also involved in the NGO sector as a member of the Association Arbitri.

Suggested citation: Fahira Brodlija, The Emergence of Evidence Opens the Door for Another Lawsuit by Bosnia and Herzegovina Against Serbia , JURIST - Student Commentary, Feb. 7, 2017, http://jurist.org/dateline/2017/02/Fahira-Brodlija-herzegovina-and-serbia.php



This article was prepared for publication by Krista Grobelny, Assistant Editor for JURIST Commentary. Please direct any questions ot comments to her at commentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
 

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