When Ethnic Cleansing is not Genocide: A Critical Appraisal of the ICJ's Ruling in Croatia v. Serbia in relation to Deportation and Population Transfer

2015 ◽  
Vol 28 (4) ◽  
pp. 937-944
Author(s):  
MARTIN STEINFELD
Keyword(s):  
Critical Appraisal ◽  
Genocide Convention ◽  
Ethnic Cleansing ◽  
Population Transfer ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Actus Reus ◽  
The Icj ◽  
Judicial Recognition

AbstractThis article critically examines the concept of ethnic cleansing in light of the ruling of the International Court of Justice (ICJ) in Croatia v. Serbia. It suggests that the lack of overt reference to it in the Genocide Convention constitutes a significant lacuna in judicial recognition and protection of atrocities committed in both the Former Yugoslavia and more generally, which the ICJ categorically refused to address. Having examined how the ICJ attempted to conceptualize ethnic cleansing as evidence of both the actus reus of genocide (particularly in relation to Article II(c) of the Convention) and its mens rea, the article then critically assesses the Court's reasoning in its refusal to rule that a violation of the Convention had taken place in relation to deportation and forcible transfer. The article then concludes by contending that the Court simply failed to provide a much-needed and workable precedent to properly include ethnic cleansing within the legal and factual matrix of genocide.

Ethnic Cleansing as Genocide – Assessing the Croatian Genocide Case before the icj

2015 ◽  
Vol 15 (1) ◽  
pp. 147-169 ◽  
Author(s):  
Maja Munivrana Vajda
Keyword(s):  
Case Law ◽  
Genocide Convention ◽  
Ethnic Cleansing ◽  
Population Transfer ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Genocidal Intent

This article considers whether and if so, under what conditions, the practice of forced population transfer can be regarded a form of genocide, notwithstanding its formal exclusion from the Genocide Convention. This is particularly relevant in the context of the pending genocide case before the International Court of Justice between Croatia and Serbia since both states essentially base their claims on acts of ethnic cleansing. International case law on this matter is far from clear, yet it points to the conclusion that ethnic cleansing may rise to genocide when carried out with genocidal intent. In contrast, Croatian courts seem to have simply equated the intent to ethnically clean a given area with the intent to destroy. Following a brief overview of Croatian case law, this article considers the viability of the pending genocide allegations and whether the Croatian claim and Serbian counter-claim have any prospects of success.

scholarly journals Protection Rohingyas through International Adjudication-Decoding Provisional Measures of International Court of Justice in The Gambia vs. Myanmar.

2020 ◽  
Vol 3 (1) ◽  
pp. 1-9
Author(s):  
Swargodeep Sarkar
Keyword(s):  
The Gambia ◽  
Genocide Convention ◽  
Special Focus ◽  
International Court Of Justice ◽  
Security Forces ◽  
Language And Culture ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
International Adjudication

United Nations Secretary-General Antonio Guterres acknowledged Rohingya, “one of, if not the, most discriminated people in the world”. In Myanmar, a country with a Buddhist majority, around a million Rohingya who is the minority having their language and culture, have been persecuted for decades. In the year 2014 census, Myanmar excluded Rohingya by denying basic citizenship. Thousands of Rohingya have fled to neighbouring States after facing persecution orchestrated by Myanmar security forces with the help of local Buddhist mobs. In this background, the Gambia with the help of Organisation of Islamic Cooperation filed the case in the International Court of Justice, alleging that the actions perpetrated by Myanmar violated the provisions of Genocide Convention 1948 to which both States are the parties. Myanmar rightly questioned the standing of Gambia as the interest of Gambia was not threatened or at stake. So, in the absence of a cause of action or rights of the Gambia not affected even remotely, the International Court of Justice should not entertain the case. One of the major issues before the Court whether the Gambia has stood without being affected directly from the violations alleged to have been committed on the Rohingya. The present author will discuss the provisional measures rendered by the ICJ on 23rd January 2020 and the challenges such as jurisdiction, admissibility, urgency or irreparable prejudice condition, faced by the Court with a special focus on the “Plausibility requirement” in provisional measures.

Rape and Sexual Violence in the ICJ's Judgment in Croatia v. Serbia

2015 ◽  
Vol 28 (4) ◽  
pp. 945-951 ◽  
Author(s):  
GIULIA PECORELLA
Keyword(s):  
Sexual Violence ◽  
Ad Hoc ◽  
Genocide Convention ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Actus Reus

AbstractThis article examines the approach followed by the International Court of Justice in Croatia v. Serbia in relation to rape and sexual violence as acts of genocide under Article II of the Genocide Convention. It is argued that this decision leaves much uncertainty with respect to the elements constituting the actus reus of genocide. First, the Court has narrowed the interpretation given by the ad hoc tribunals to what constitutes ‘serious harm’ under Article II(b). Second, it has introduced an objective requirement, which is in fact unnecessary under Article II(c) of the Convention. Third, it seems that, according to the Court, in order for rape and sexual violence to be regarded as genocidal conduct within the meaning of Article II(d) of the Convention, it is necessary to prove that such conduct did in fact prevent births at least within a part of the group.

Case Analysis: Counterclaims Before the International Court of Justice: The Genocide Convention and Oil Platforms Decisions

1999 ◽  
Vol 12 (1) ◽  
pp. 197-229 ◽  
Author(s):  
Hugh Thirlway
Keyword(s):  
Subject Matter ◽  
Case Analysis ◽  
Genocide Convention ◽  
Direct Connection ◽  
International Court Of Justice ◽  
Oil Platforms ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
The Subject

The provisions of the ICJ Rules of Court concerning counter-claims have fallen to be applied in two recent cases, in circumstances such the Court has had to examine the nature of a counter-claim and the conditions for its admission as such, and in particular the nature of the ‘direct connection’ with the subject-matter of the application, required by the Rules. In each case the counter-claim was admitted, over the dissent of some judges: these decisions are probably justified, even though some aspects of the reasoning may be criticised.

Forum Prorogatum Returns to the International Court of Justice

2003 ◽  
Vol 16 (4) ◽  
pp. 701-713 ◽  
Author(s):  
SIENHO YEE
Keyword(s):  
Criminal Proceedings ◽  
Judicial Process ◽  
National Interests ◽  
International Court Of Justice ◽  
General Acceptance ◽  
Court Of Justice ◽  
Peaceful Settlement ◽  
International Court ◽  
The Icj

The ICJ interpreted Article 36(1) of its Statute – more specifically, the phrase ‘all cases which the parties refer to it’ – as permitting it to adopt the doctrine of forum prorogatum as a jurisdictional principle and to adapt this doctrine to the circumstances of international judicial process, as an informal way of founding its jurisdiction over the merits of a dispute. The resort to this doctrine has given rise to some concerns and has not received the general acceptance of states. The Certain Criminal Proceedings in France case marks the successful return of the doctrine to the ICJ and shows that the doctrine is a valuable tool for nationalists seeking to protect national interests and for internationalists seeking to promote the peaceful settlement of international disputes.

The International Court of Justice in Asia: Interpreting the Temple of Preah Vihear Case

2014 ◽  
Vol 5 (1) ◽  
pp. 1-6 ◽  
Author(s):  
Simon CHESTERMAN
Keyword(s):  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
General Preference ◽  
Preah Vihear ◽  
The Temple

This essay examines the 2013 Decision by the International Court of Justice interpreting its 1962 Judgment in the Temple of Preah Vihear case between Cambodia and Thailand, situating the more recent decision in the context of the Court's evolving role in Asia. Only eight Asian states have accepted the compulsory jurisdiction of the Court; only nine have ever appeared before it. The narrowness of the recent decision is of interest in part because of the modest role it ascribes to judicial institutions, but also for what this modesty heralds for the Court's status in Asia. A key conclusion is that Asian states are likely to retain a general preference for bilateral resolution of disputes. For smaller disputes, however, especially those concerning subjects that cannot be divided or traded—such as a temple (and, as we shall see, an island)—the ICJ may play an important role.

scholarly journals States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of their Oral Pleadings

2021 ◽  
Vol 20 (1) ◽  
pp. 54-76
Author(s):  
Marco Longobardo
Keyword(s):  
International Law ◽  
State Responsibility ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Icj ◽  
Treaty Interpretation

Abstract This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.

scholarly journals Custom as a Source Under Article 21 of the Rome Statute

2021 ◽  
pp. 1-13
Author(s):  
Amit KUMAR
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Principle Of Legality

Abstract The adoption of the Rome Statute is a significant moment for international criminal law. Before its formulation, the criminal law was governed by the sources mentioned in their statute or Article 38 of the Statute of the International Court of Justice [ICJ Statute]. Custom is one of the important sources within the ICJ Statute. The ad hoc tribunals applied custom and even formulated certain customs. The formulation of custom is considered as against the principle of legality. To avoid such criticism, the State Parties inserted Article 21 in the Rome Statute. The provision clarifies the law which the court can apply. The parties chose not to include custom explicitly. However, the wordings of the provision indicate that the custom is still a source for the court. Apart from the wording of Article 21, other provisions of the Statute give ample scope for the application of custom.

scholarly journals Third State Intervention before the International Court of Justice in International Environmental Law Cases

2021 ◽  
Author(s):  
◽  
Franziska Liebelt
Keyword(s):  
Environmental Law ◽  
Environmental Issues ◽  
State Intervention ◽  
International Environmental Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Nuclear Tests ◽  
The Antarctic

<p>Third state intervention before international institutions originated in international arbitration around 1875 and has been included in the statute of the International Court since the foundation of the Permanent Court of International Justice (PCIJ) and is therefore no new phenomenon. Today, most systems of international dispute settlement provide for the possibility of third state intervention. Nevertheless intervention before the International Court of Justice (ICJ) has been used by states sparsely and seems underdeveloped. The statute of the ICJ provides for two ways of intervention in its arts 62 and 63. There have been few applications under these provisions. Looking at the court’s orders in these few cases, the court seems to have adopted a restrictive approach towards allowing applications to intervene. This paper looks at the institution of intervention in the area of international environmental law disputes. There have been two relevant disputes of this kind before the ICJ: the Nuclear Tests litigation and the recent litigation of Whaling in the Antarctic. Both of these cases dealt with the question of state obligations towards the protection of the environment. The applications to intervene in Nuclear Tests failed for reasons that will be explained in more detail below. New Zealand’s application to intervene in Whaling in the Antarctic was authorized by the ICJ on the 6 February 2013 under art 63 of the Statute of the ICJ. The case is exceptional in that it is only the second time the ICJ allowed intervention under art 63. Both cases demonstrate that there are environmental issues that concern more than only the nations that are parties to the dispute. They indicate that intervention plays a particularly strong role in environmental issues because these issues by their nature often affect more than just two states. This paper analyses how the shared environmental concern of the international community might lead to an extension of intervention before the ICJ. It further more looks at the issues that arose before the court in connection with the intervention in Whaling in the Antarctic and how these issues were dealt with.</p>

Election of the Registrar and Deputy-Registrar of the ICJ

1987 ◽  
Vol 81 (3) ◽  
pp. 762-762
Keyword(s):  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj

On February 19, 1987, the International Court of Justice elected Eduardo Valencia-Ospina to the post of Registrar to succeed Santiago Torres Bernárdez, who had resigned for personal reasons several months before the expiry of his term of office. Mr. Valencia-Ospina had served as Deputy-Registrar since April 1984. He had previously served in the Office of Legal Affairs of the UN Secretariat. In accordance with Article 22 of the Rules of Court, he was elected for a term of 7 years.

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