The International Court of Justice (ICJ) in The Hague rejected a revision request of the judgment based on Bosnia and Herzegovina (B&H)'s lawsuit against Serbia concerning the questionable legitimacy of the legal representation from Sarajevo. Namely, Sakib Softić has submitted the request for the revision of claims to the ICJ on February 23, 2017 (three days before the established deadline) without the previous approval by the President Mladen Ivanić of B&H. Thereupon, the ICJ has requested clarifications on Softić's legitimacy as well as individual statements of all three members of the B&H Presidency concerning the revision of the judgment.
The ICJ concluded that the request was not submitted based on the appropriate approval by the competent government body and that it could not proceed based on such a request about the "application for the revision of the judgment from February 26, 2007 in the case of the application of the Convention on the Prevention and Punishment of the Crime of Genocide (B&H v. Serbia)". The court was in the position to decide on such a revision in a case involving genocide for the first time, but ruled on procedural grounds without addressing the merits.
As a reminder, the initial case was decided by the ICJ a decade ago. Namely, on February 26th 2007, the ICJ rendered a judgment in re Bosnia and Herzegovina v. Serbia and Montenegro, deciding on the claim of Serbia's violation of the Convention on the Prevention and Punishment of Genocide [PDF]. 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 B&H. Therefore, the Court found that as per international law, Serbia was neither 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.
The request for revision itself caused a strong reaction from the officials of the government of Republika Srpska (RS), most notably Serbian President Milorad Dodik, who emphasized that the attempt to reopen this case is proof that B&H is not moving towards a better future, but continues to look back to the past. Dragan Čović, the Croatian member of the B&H Presidency who notified the ICJ on the lack of authorization to Softić for filing the request in question, shared this view, and announced a stronger cooperation between his party and RS to prevent such unilateral decisions by parties from Sarajevo.
Bosniak member of the B&H presidency, Bakir Izetbegović, stated that the decision of the ICJ is politically motivated and that the court did not actually examine the merits of the request or Softić's authorization. He characterized this development as another blow to the dignity of the Bosniacs who continue to be victimized through the denial of the genocide committed by Serbia under the Milošević regime. He also noted that he had expected more support from Mr. Čović in the pursuit of justice related to the numerous war crimes which took place during the 1992-1995 war.
The deadline for the revision of the judgment has officially expired on February 26, 2017, but the effects this attempt will certainly continue to shape the daily socio-political events in B&H, especially raising national tensions which are certainly going to rise after such an overt unilateral decision. In the wake of these developments, the Prime Minister of Serbia, Aleksandar Vučić is visiting Sarajevo on March 16, 2017. This visit should provide more clarity as to the position of the two countries and the future steps towards overcoming the current difficulties. Bakir Izetbegović has emphasized that he does not associate the Vučić government with Milošević and that Vučić is always welcome in Sarajevo.
The matter took another bizarre turn when it was established that Mr. Sakib Softić was notified by the ICJ in May of 2015, stating that he lacks the proper authorization and legitimacy to act as a legal representative of the Government of B&H before that court. This finding has created political and social outrage motivated by the fact that along with the failure to follow the proper procedure for the request to the ICJ during the 10 years from the initial lawsuit, the person chosen to ultimately submit the request knowingly act outside of his capacity in the process. Many questions are raised on the Bosniak side regarding possible explanations for this development, the main one being whether this was another blatant example of political incompetence and negligence, or if this was a planned activity supported by the Serbian side to undermine and prevent the attempts to reach justice regarding the war crimes B&H. The pressure on Mr. Softić is mounting as the President of Republika Srpska Dodik has urged the Republic's prosecutor's office to file a suit against him for false representation.
The author of the revision request, former-US Ambassador for Matters of Genocide, David Scheffer, expressed great disappointment in the fact that the court rejected the revision request due to technicalities. Mr. Scheffer emphasized that unlike other state to state litigation such as oil and gas concessions or border disputes, matters of genocide should not be allowed to fall easily on procedural grounds. He also encouraged appeals and challenges to this rejection, as he firmly believes that B&H has enough evidence to substantiate its genocide claims against Serbia.
It remains to be seen how this complicated scenario unveils both on the day to day political stage, as well as in the context of the new partnerships being built with long term perspectives. There is no doubt that this attempt of accessing justice for the crimes committed over two decades ago has allowed some of the old sentiments and tensions to resurface, thus demonstrating that no matter how long such tension remains dormant, it can re-emerge at any moment in full-force with all the detrimental effects it carries.
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, ICJ Regjects Bosnia & Herzegovina's Request for Revision of its 2007 Judgment, JURIST - Student Commentary, March 24, 2017, http://jurist.org/dateline/2017/03/.php.
This article was prepared for publication by Val Merlina, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at