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.

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.

scholarly journals The Power of the International Court of Justice to Indicate Provisional Measures to Prevent the Aggravation of a Dispute

2008 ◽  
Vol 21 (3) ◽  
pp. 623-642 ◽  
Author(s):  
PAOLO PALCHETTI
Keyword(s):  
Case Law ◽  
The Other ◽  
Controversial Issue ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Irreparable Harm ◽  
The Icj

AbstractThe article aims at examining, in the light of the practice of the International Court of Justice, some issues concerning the power of the Court to indicate provisional measures to prevent the aggravation or extension of a dispute. While the existence of a power to indicate non-aggravation measures appears to be well established in the Court's case law, the scope of this power has proved to be a more controversial issue. This study argues that, by attaching relevance to the element of aggravation, the Court has been able to indicate measures that are not strictly needed to prevent a risk of irreparable harm but which at any rate contribute to a greater protection of the rights of the parties; at the same time, however, the Court has so far refrained from regarding the risk of aggravation as a circumstance which may justify a less stringent evaluation of the other conditions that normally need to be satisfied for the granting of interim protection under Article 41 of the ICJ Statute.

The Actus Reus of Genocide in the Croatia v. Serbia Judgment: Between Legality and Acceptability

2015 ◽  
Vol 28 (4) ◽  
pp. 915-921 ◽  
Author(s):  
CAROLINE FOURNET
Keyword(s):  
Case Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Actus Reus ◽  
Genocidal Intent

AbstractThe long-awaited verdict of the International Court of Justice in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case between Croatia and Serbia brought to an end the speculations as to whether or not a finding of genocide would be reached. After lengthy considerations on the genocidal actus reus, the Court dismissed all the claims of genocide, based on the lack of genocidal intent. If this conclusion is perfectly in line with established law and case law, its wider readability and acceptability outside of the legal microcosm is perhaps doubtful. How can a judgment which recognizes that acts falling within the list of proscribed genocidal acts have been committed but which then refutes their qualification as genocidal due to a lack of specific intent be explicable to those who lost their loved ones in what they feel was an enterprise of destruction?

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.

A Lauterpachtian Affair: Security Exceptions as ‘Self-Judging Obligations’ in the Case Law of the International Court of Justice and Beyond

2021 ◽  
Vol 22 (4) ◽  
pp. 509-560
Author(s):  
Momchil Milanov
Keyword(s):  
International Law ◽  
World Trade ◽  
Case Law ◽  
Entire Body ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
International Legal System ◽  
The Relationship

Abstract Although Sir Hersch Lauterpacht never dealt with security exceptions during his time at the International Court of Justice (ICJ), his entire body of work formed the intellectual premise for the approach of the Court towards security exceptions and the way in which the ICJ manoeuvers in the larger debate on the relationship between law, politics and the proper discharge of the judicial function. The Lauterpachtian approach is understood as a particular attitude towards the judicial function in which the Court serves as an instrument for the protection of peace, as a guardian of the coherence and unity of the international legal system and as a driving force for the development of international law. However, in some other important elements of its reasoning, the Court seems to remain more Lauterpachtian in spirit than in letter. Despite these inconsistencies, the Court arguably exerted significant (albeit somehow uneven) influence over World Trade Organization panels and investment tribunals.

The International Court of Justice and Cultural HeritageInternational Cultural Heritage Law Through the Lens of World Court Jurisprudence?

2020 ◽  
pp. 223-242
Author(s):  
Gabriele Gagliani
Keyword(s):  
Cultural Heritage ◽  
International Law ◽  
Case Law ◽  
International Justice ◽  
International Court Of Justice ◽  
Public International Law ◽  
Court Of Justice ◽  
International Court ◽  
The Icj

The International Court of Justice, and its predecessor court, the Permanent Court of International Justice, have dealt with cultural heritage issues in a number of cases extending back over a century. Scholars’ attention to this case law appears fragmentary. This chapter intends to fill this gap and analyze the ICJ jurisprudence involving cultural heritage. Through the analysis of ICJ case law on cultural heritage and cultural heritage-related arguments resorted to by States in ICJ disputes, this chapter wishes to prove the relevance of cultural heritage issues for public international law and the key, often-underestimated role of the ICJ for international law on cultural heritage.

The History of Article 38 of the Statute of the International Court of Justice

2018 ◽  
Author(s):  
Ole Spiermann
Keyword(s):  
International Law ◽  
Case Law ◽  
Historical Records ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The World ◽  
The Icj ◽  
History Of

This chapter takes a look at Article 38 of the International Court of Justice (ICJ) Statute. This article intends to define so-called sources or origins of international law to be used by the World Court. The text dates back to 1920, before the predecessor of the ICJ, i.e. the PCIJ, took up its activities. The chapter notes that since 1920, Article 38 has featured prominently in the theory on so-called sources of international law, while the provision has been of little relevance in the case law of the International Court of Justice (ICJ) and its predecessor. Based mainly on historical records, the chapter seeks an explanation, which in turn may shed new light on sources theory.

scholarly journals Cultural Rights in the Case Law of the International Court of Justice

2014 ◽  
Vol 27 (2) ◽  
pp. 447-464 ◽  
Author(s):  
ELENI POLYMENOPOULOU
Keyword(s):  
Case Law ◽  
Great Difficulty ◽  
Legal Issue ◽  
International Court Of Justice ◽  
Cultural Rights ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Substantial Progress ◽  
Decision Making Processes

AbstractOne of the most remarkable developments of the new millennium has been the expansion of debates on culture at the highest levels of the international community's decision-making processes. This has, out of necessity, had an impact on the empowerment of cultural rights, enhancing their justiciability. Substantial progress has been made both at a regional and international level. Yet not all thresholds have been reached. The International Court of Justice (‘ICJ’) has never explicitly addressed cultural rights in its case law. Despite its multicultural composition, it is only with great difficulty that the Court examines questions related to culture. However, a thorough examination of the jurisprudence of the ICJ reveals that opportunities to take cultural rights seriously have arisen more than once. Recent judgments of the Court reveal the emergence of a certain trend calling for a culturally sensitive understanding of legal issues brought to the Hague. This article submits that this trend is beneficial not only for the protection of cultural rights, but also for the maintenance of human and cultural diversity, as well as for the survival and livelihood of indigenous peoples. In light of the urgent worldwide need for peace, addressing culture as a legal issue before the ICJ, in accordance with Articles 36 and 60 of its Statute, may be a fruitful pathway for the Court to follow in order to resolve international disputes.

The Protection of Human Life Through Provisional Measures Indicated by the International Court of Justice

2002 ◽  
Vol 15 (2) ◽  
pp. 345-366 ◽  
Author(s):  
Yoshiyuki Iwamoto (Lee)
Keyword(s):  
Human Life ◽  
Case Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Irreparable Harm ◽  
Recent Approach ◽  
The Icj ◽  
Judicial Proceedings ◽  
The Subject

Recently, the ICJ appears to have been taking into account the protection of human life in its indication of provisional measures. This raises the question of how and to what extent the human life element influences the criteria for indicating provisional measures. After considering the meaning of ‘irreparability’ in the Court's jurisprudence, the author analyzes recent case law in the light of a link between irreparable harm and those rights of the parties that constitute the subject matter of the dispute in judicial proceedings. In conclusion, the author criticizes the Court's recent approach towards indicating provisional measures, as it raises some problems concerning jurisdiction, as well as the binding character and the nature of provisional measures.

The ICJ in the 21st Century: Judicial Restraint, Judicial Activism, or Proactive Judicial Policy

2007 ◽  
Vol 56 (4) ◽  
pp. 741-753 ◽  
Author(s):  
He Judge Pieter Kooijmans
Keyword(s):  
United Nations ◽  
21St Century ◽  
International Society ◽  
Case Law ◽  
Point Of View ◽  
Judicial Activism ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj

AbstractA court of law can take various approaches when dealing with a case before it: judicial restraint, judicial activism or a proactive policy. In the present article the recent case law of the International Court of Justice is analysed in this light. The author is of the view that the Court, as the principal judicial organ of the United Nations should, wherever possible, by a careful judicial policy, apart from deciding the case in hand, give guidance and provide clarification on a number of questions which are of primordial importance in present-day international society but still are largely obscure from a legal point of view.

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