Belgrade Action Against NATO Begins

Wednesday, 9 November, 2005

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Rachel S.

In a series of unusual legal proceedings, the International Court of Justice, ICJ, heard arguments this week in eight separate cases relating to what Belgrade alleges was NATO's illegal use of force in Kosovo in 1999 - a violation, it claims, of the Genocide Convention.

Arguments in this week's preliminary hearings focused entirely on whether the ICJ has jurisdiction over the cases - Serbia and Montenegro versus Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, and the United Kingdom - and whether Belgrade's claims are admissible.

Oddly, while it initiated the proceedings, Belgrade did not explicitly ask the court to find that it had jurisdiction. Instead, acknowledging that the country's legal status was murky throughout the Nineties, its representative told the court, "We would simply like to know where we stand." It was far from a compelling jurisdictional argument in a contentious case alleging genocide.

Belgrade's bizarre behaviour can be explained in great part by what Belgium's representative described as "the elephant in the room" - namely, a separate case also before the ICJ in which Bosnia and Herzegovina has charged Serbia and Montenegro with violating the same Genocide Convention. Croatia has filed a similar case against Belgrade as well.

In short, if the ICJ finds that it does not have jurisdiction in the cases heard this week because Belgrade was not a party to relevant treaties, the latter will likely try to argue that the court does not have jurisdiction in the cases brought by Bosnia or Croatia either.

Back in March 1993, Bosnia instituted proceedings against what was then Yugoslavia, claiming that Yugoslav agents "killed, murdered, wounded, raped, robbed, tortured, kidnapped, illegally detained, and exterminated the citizens of Bosnia and Herzegovina" - acts, it insisted, that constituted genocide.

Bosnia also argued that because both it and Yugoslavia were parties to the Genocide Convention - which says that disputes under the convention will be heard by the ICJ - the court had jurisdiction to determine whether Yugoslavia had committed genocide. Yugoslavia did not contest this.

Years later, in April 1999, as NATO planes were bombing Kosovo, Yugoslavia decided to bring a case of its own. In its filings to the ICJ, Belgrade alleged that NATO, among other things, had violated the obligation "banning the use of force against another state" and "deliberately inflict[ing] conditions of life calculated to cause the physical destruction of a national group", the latter being the definition of genocide.

It offered three possible bases for the court's jurisdiction.

First, it said, the court had jurisdiction because Yugoslavia and the NATO countries were members of the United Nations and, as such, were parties to the statute of the ICJ. Second, it argued that the court had jurisdiction under the Genocide Convention, to which it insisted Yugoslavia and the NATO countries were parties. And third, in its cases against Belgium and the Netherlands, it insisted that individual treaties between the countries gave the court an additional basis of jurisdiction.

The NATO states contested each of these arguments and, throughout the week's hearings, repeatedly insisted that the court was not open to Belgrade when it filed its case in April 1999.

At issue is the country's legal status during the time in question. For while the former Yugoslavia was a party to the relevant treaties, the entity that brought the case - the Federal Republic of Yugoslavia, which later became Serbia nd Montenegro - was not.

This point was made by each of the NATO states, as well as Belgrade itself, in a December 2002 declaration to the court.

As the NATO countries explained - and Belgrade agreed - Serbia and Montenegro was not a member of the UN when the case was filed. Rather, it acquired UN membership 18 months later, in November 2000. As such, the NATO countries argued, Belgrade was not a party to the ICJ's statute at the relevant time.

Moreover, NATO states told the court - and again, Belgrade, did not disagree - Serbia and Montenegro was also not a party to the Genocide Convention when it submitted the case. Indeed, Belgrade signed on to the convention on March 2001. The NATO states thus insisted that the court did not have jurisdiction under the latter.

Representatives from Belgium and the Netherlands also argued that treaties they had signed with Yugoslavia were no longer in force in April 1999, and, as such, the court did not have jurisdiction under those either.

Finally, the NATO countries insisted that because Belgrade had not asked the ICJ to find it had jurisdiction, all parties were essentially in agreement. Because the court can only hear cases that involve actual disputes, the NATO states argued the case should be dismissed.

The United Kingdom's representative said, "Both the applicant and the respondent are effectively at one in considering that there is no basis of jurisdiction for the court to hear the case. There is, it seems, no longer any dispute between the parties over jurisdiction and, hence, no longer any dispute before the court today."

The Canadian representative similarly suggested that allowing the case to continue "would mean that a state is free to come to this court saying 'we do not think we are party to [your] statute of the court, and neither does the respondent, but in case you disagree, let us know'."

Belgrade, however, insisted a dispute remained. Its counsel suggested that because the country had a sui generis, or unique, position vis-à-vis the UN when it filed the case, "the key question" is whether this position "could have provided the link between the new state and...the [ICJ] statute and the Genocide Convention". It was this question that Belgrade wanted the court to answer.

And in a new argument presented this week, Belgrade suggested that NATO's acts could constitute genocide as they were aimed at intimidating the country's citizens and government into accepting international demands.

The NATO states strongly disagreed, insisting that the acts in question did not constitute genocide because there was no intent to destroy any group - a required element of the crime. They also expressed great frustration that Belgrade had presented this new argument so late in the proceedings.

Meanwhile, back in Belgrade, Vuk Draskovic, Serbia and Montenegro's new foreign minister, reportedly suggested on April 19 that all such claims before the ICJ should be withdrawn.

On the very day he was sworn in to his new post, Draskovic reportedly said, "We are sued by Croatia and Bosnia-Herzegovina, we are suing NATO, while we, the Croatians and Bosnians all want reconciliation and improvement in our relations....The best solution would be that we all withdraw claims against each other."

It is not surprising that Belgrade wants to put all litigation behind it. Not only could it lose the cases brought by Bosnia and Croatia, Belgium told the court that the NATO proceedings had become an obstacle to Serbia and Montenegro joining the alliance's Partnership for Peace programme.

The NATO countries asked the 15-judge panel - on which Milenko Kreca is serving on behalf of Serbia and Montenegro - to strike the case from the court's list of proceedings or to issue a judgment indicating that there is no dispute.

Similar charges against the United States and Spain have already been dismissed for lack of jurisdiction.

Rachel S. Taylor is an IWPR editor in The Hague.