judgment of croatia vs serbia- model icj the hague international model united nations

7/29/2019 Judgment of Croatia vs Serbia- Model ICJ The Hague International Model United Nations

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XLV Anniversary Session The Hague International Model United Nations 2013

International Court of Justice Page 1

ORDER OF THE INTERNATIONAL COURT OF JUSTICE

Present:

President: Ozdalga

Judges: Buchelli, Carden, Dawda, Huang, Laporte, Li, Magd, Markou, Maurus, Mwaura,

Paterson, Reid, Sahu, Salter, Stanley-Ryan, Subashi, Walther, Warith, VanNievelt

The International Court of Justice,

After due deliberation,

Regarding the application by the Republic of Croatia in the proceedings of Croatia v. Serbia,

Whereas the parties stipulated to the following facts:

1. Establishing the citation referenced in the lawsuit: Article IX of the Convention on thePrevention and Punishment of the Crime of Genocide states Disputes between theContracting Parties relating to the interpretation, application or fulfillment of the present

Convention, including those relating to the responsibility of a State for genocide or any ofthe other acts enumerated in Article III, shall be submitted to the International Court of

Justice at the request of any of the parties to the dispute;

2. Establishing Article III of the Convention on the Prevention and Punishment of the Crimeof Genocide states The following acts shall be punishable: (a) Genocide; (b) Conspiracy

to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to

commit genocide; (e) Complicity in genocide. Moreover, the Court identifies theelements of a State-perpetrated genocide as defined by in the Article II in the Convention

on the Prevention and Punishment of the Crime of Genocide;

3. The court in the Application of the Convention on the Prevention and Punishment of theCrime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro) found

substantive basis with regards to the obligation for States, contracted to the Conventionon the Prevention and Punishment of the Crime of Genocide, not to commit genocide in

Article I, which states The Contracting Parties confirm that genocide ... is a crime under

international law which they undertake to prevent and to punish, as it asserts that theobligation to prevent genocide implies a direct prohibition for States to commit genocide;

4. The Court in the Application of the Convention on the Prevention and Punishment of theCrime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro) also heldthat when a state prescribes a certain act as a crime, it automatically undertakes the

obligation not to commit that act, whereas it would be paradoxical if the State was under

an obligation to prevent genocide being committed by persons over whom they exert

some influence, but not by their own organs over which they are supposed to have fullcontrol;


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5. The International Court of Justice has jurisdiction over the case; When the case was filedon the 2nd of July 1999, the Republic of Croatia was party to the statute (and was asignatory), yet the Republic of Serbia was not a member of the United Nations and thus

not a party to the Statute of the Court at that time. However, the Federal Republic of

Yugoslavia (hereinafter FRY) was bound by (and was a signatory to) the Genocide

Convention at the time (2nd of July 1999) and was also bound by it on the 1st ofNovember 2000, which is when it became a party to the Statute of the Court. A note from

the Permanent Mission of Yugoslavia to Secretary General of UN stated: the FRY would

continue to fulfill all the rights conferred to, and obligations assumed by, the So cialistFederal Republic of Yugoslavia (hereinafter SFRY) in international relations, including

its membership in all international organizations and participation in international treaties

ratified or acceded to by Yugoslavia. As per the aforementioned quote, the SFRYsucceeded its relation to the Genocide Convention to the FRY upon its

dissolution. Secondly, the Mavrommatis principle is evidence of similar jurisprudence of

the court. Finally, Article 36 of the ICJ Statute lays down the courts jurisdiction,

moreover allows cases of extreme gravity to be brought before the Court;

6. The jurisdiction of the court extends only for acts and omissions, which took place afterthe signing of the Convention on the Prevention and Punishment of the Crime ofGenocide, and approval of the General Assembly of the United Nations on 9 December

1948;

7. The Republic of Serbia (Serbia) takes full responsibility for the actions taken by the StateUnion of Serbia and Montenegro (The Federal Republic of Yugoslavia (FRY)). The

proceedings were instituted in 1999 against the Federal Republic of Yugoslavia - later

renamed as the Republic of Serbia and Montenegro in 2003. After the Republic of

Montenegros declaration of independence in 2006 from the Republic of Serbia andMontenegro, Montenegro no longer holds the international legal personality of the Stateunion of Serbia and Montenegro (Courts reasoning in unofficial press release 18 Nov

2008). In light of this, Serbia is the only respondent in this case;

8. The Republic of Croatia was created on the 8th of October 1991 when the countrydeclared independence from the SFRY;

9. Regions in the self-proclaimed Republic of Serbian Krajina, which was formed within thenewly established Republic of Croatia, declared independence from Croatia from 26February - 12 August 1991 (shortly after Croatia declared independence);

10.Both parties were signatories to the Ceasefire Agreement signed on the 29th of March1994 by Croatian Government representatives and local Serb authorities (witnesses were:The Russian Federation, the United States of America, the International Conference on

the Former Yugoslavia and the Force Commander of UNPROFOR);

11.The European Court of Human Rights case law confirms that substituting a differentprocedure for a criminal charge rather than its original criminal framework will not break

the connection between the offense and the minimum procedural guarantees that


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correspond to the seriousness of the offense;

12.The Court requires proof at a high level of certainty appropriate to the seriousness of theallegation when dealing with cases of preventing and punishing genocide, as well as

charges of genocide against a State, so as to protect the accused (Serbia) from an

inadequately supported determination of genocide;

13.The Court is not legally precluded from ordering financial compensation that reflects thegravity of a breach of the Convention on the Prevention and Punishment of the Crime ofGenocide;

14.The Croatian regions of Slavonia and Dalmatia are the regions majorly affected by theconflict;

15.In 1995 the FRY urged and encouraged Croatian citizens of Serb ethnicity in the Kninregion to evacuate the area;

16.Both parties agree to the quotation and/ or submission to trial the statements (oral, visualand/ or written) from the following persons; (Mr. Slobodan Miloevi, Mr. Mirko Norac,Mr. Ante Gotovina, Mr. Janko Bobetko, Mr. Hrvoje Sarinic) within the jurisdiction of

Serbia and Croatia are within the jurisdiction of the Court and are henceforth admissible

into the courts proceedings (oral and written) and both parties statements (including but

not limited to: pleas, objections, memorials, memorandums);

The court makes the following findings of fact and/or law:

Whereas ethnic cleansing may have occurred in Croatia, the court has drawn a delineation

between ethnic cleansing and genocide based on the existing conventions;

Whereas the Applicant failed to meet its burden of proof, in that it was not proven that genocideoccurred in Croatia from 1991 to 1995, in accordance with the Convention on the Prevention and

Punishment of the Crime of Genocide;

Whereas the Serbian government did in fact have ties to the Yugoslav Peoples Army (JNA), no

concrete connections were found to exist between them and the Federal Republic of Serbian

Krajina (FSK);

Therefore, the International Court of Justice orders, adjudges, and decrees that:

1. The respondents are not liable for genocide, as the Applicant failed to prove genocide inaccordance with the Convention on the Prevention and Punishment of the Crime ofGenocide;

2. As such, the Republic of Serbia shall not be ordered to pay any reparations orcompensaton for physical or psychological damage to persons, physical property (public

or private), to the Croatian economy, to the Croatian environment, or for any other

damage whatsoever.


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Concurring: Justices: Bucheli, Carden, Dawda, Huang,

Laporte, Maurus, Ozdalga, Reid, Salter

Separate but Concurring: Justice: Li, Magd, Markou, , Sahu, Subashi,Walther, Warith, Van Nievelt

Separate but Concurring: Justices: Paterson, Stanley-Ryan

Dissenting: Justice: Mwaura


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SEPARATE BUT CONCURRING OPINION BY JUSTICES PATERSON AND

STANLEY-RYAN

After deliberation,

Regarding the Application by Croatia in the proceedings of Croatia v. Serbia concerning the

application of the Convention on the Prevention and Punishment of the Crime of Genocide,

We make the following findings of fact and/or law:

1. Atrocities and war crimes were committed by both Serb and Croatian forces in Croatiabetween 1990 and 1996;

2. As per the Convention on the Prevention and Punishment of the Crime of Genocide(hereinafter referred to as the Genocide Convention), genocide s defned as any of thefollowing acts committed with intent to destroy, in whole or in part, a national, ethnical,

racial or religious group, as such:

a. Killing members of the group;b. Causing serious bodily or mental harm to members of the group;c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;d. Imposing measures intended to prevent births within the group;e. Forcibly transferring children of the group to another group.

3. This definition of genocide implies that genocide is the deliberate and systematic destruction

of an ethnic, racial, religious or national group;

4. Ethnic cleansing is considered to be the attempt to forcibly remove members of an ethnic,

racial, religious or national group from a specific territory through murder, intimidation or other

coercive means;

5. Ethnic cleansing is not covered under the Genocide Convention and, although it is a mass

atrocity crime, t is not within the parameters of this case;

6. Insufficient evidence was provided to substantiate the claims of genocide;

7. Insufficient evidence existed to substantiate the allegations of the involvement of the Serbian

state in either the actions of the JNA or FSK;

Based on these findings and deliberations, we find that:

1. Genocide was not perpetrated in Croatia during the period of 1990-1996;2. As such, Croatia has not met its burden of proof;3. Therefore, Serbia bears no liability under the Genocide Convention.


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We hereby render our opinion,

Judge Matthew Paterson, Judge Ash Stanley-Ryan


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SEPARATE BUT CONCURRING OPINION BY JUDGES LI, MAGD, MARKOU,

SAHU, SUBASI, VAN NIEVELT, WALTHER AND WARITH

Regarding the application by the Republic of Croatia in the proceedings of The Republic of

Croatia vs. The Republic of Serbia, concerning the issue of the Application of the Convention on

the Prevention and Punishment of the Crime of Genocide,

In accordance with the majority opinion, the Judges find in favor of the Respondent Party. The

Judges agree that insufficient evidence was presented by the Applicants to prove genocide,

conspiracy to commit genocide, direct and public incitement to commit genocide, or the attempt

to commit genocide or complicity in genocide, as defined in Articles 2 and 3 of the Convention

on the Prevention and Punishment of the Crime of genocide.

We also agree on the likelhood of ethnic cleansing having occurred in the Krajina. However,

since the Applicant Party asked the Court to find the Respondent Party liable for genocide based

on the Convention on the Prevention and Punishment of the Crime of Genocide, which does not

include ethnic cleansing, the Judges cannot rule in favor of the Applicant Party.

Further, we fnd that n addition to the link between the Yugoslav People's Army (JNA) and the

former Federal Republic of Yugoslavia (succeeded by the Republic of Serbia), the evidence s

sufficient to prove a link between the actions of the Republic of Serbian Krajina (RSK/FSK) and

the former Federal Republic of Yugoslavia.

Hereby we have rendered our Separate But Concurring opinion.

Justices Li, Magd, Markou, Sahu, Subasi, Van Nievelt, Walther, Warith


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DISSENTING OPINION OF JUSTICE MWAURA

Wth regard to the application for compensation of human loss, economy, environment and

physical injury by Serbia in the case ofCroatia v Serbia concerning the fact that genocide was

committed, and there had been a breach of the Genocide Conventon,

I dissent given the evidence presented by both parties:

I believe it is the courts oblgaton to procure a full understanding of not only the means of an

actbut also ts effects.

Thus:

1. It is clear that Croatia should not be compensated, as they also acted as a catalyst to the

destruction of their own people. To put full blame on Serbia on the basis of cases such as the"UN General Assembly Resolution " weakened their case tremendously as most of their facts

pertaned to the Bosnia case. Croatia was unable to sway me of their stuaton, as they did not

express the depravity of their people and in fact acted as a defendant to the actions of the

Serbians.

2. The use of the Bosnia cases to rely on actually led to an understanding of the brutality of

Serbian actions, this causing reasonable doubt to the need for Serbians actions.

3. Serbia significantly weakened their case, as they did not explain their connection to Croatia.

Serbia clearly portrayed the idea of taking action first against Croatia, thus leading me to think

that Croatia acted n self-defense.

4. Serbia created more doubt by the statement of the Serbian Ambassador "it is not in fact legal

to intervene in a countrys personal problems" then later admitted to "understanding the damage

that caused as well".

5. I do in fact believe that the Croatia should be granted their prayer that Serbia be held lable for

their part in their action n causng genocide to Croatia and Croat people.

I hereby render my opinion,

Justice Mwaura

judgment of croatia vs serbia- model icj the hague international model united nations

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