Joginder Singh Toor

BOSNIA previously a part of kingdom of Serbs, Croats and Slovenes formed in 1918, re-named Yugoslavia in 1929, broke into pieces namely, Crotia, Slovenia, Mecedonia, Bosnia and Serbia, invoked the jurisdiction of the International Court of Justice for Genocide and other offences. The period between 1980 and 2000 Yugoslavia saw ethnic violence and crimes of worst nature, like murders of Muslim community at large, rapes of girls and women indiscriminately, extinction of property and belongings.

During the war in Bosnia, from 1992 to 1995, the United Nations declared Srebrenica a haven and promised to protect it. But in July 1995, Bosnian Serb forces overtook 370 armed Dutch peace keepers sent by the UN, and seized control of the enclave and killed almost every Bosnian Muslim man and boy found there. About 8000 persons are estimated to have been massacred in single day.

The plunderers, murderers, the killers had the financial and military support of Serbia since 1990 when the war broke.

Hard hit Bosnians by the genocide demanded justice by filing a civil suit in the International Court of Justice claiming war reparation and punishment for Serbs under the convention on the Prevention and Punishment of Crime of Genocide.

The Holocaust of the Jews during the second world war by Adolf Hitler and his Nazi government, the repetition of ever happening incidents of genocide, racial and religious killings in the course of history at one or the other place in the world against one or the other ethenic, national, racial group led the members of the United Nations to the convention in December 1948 at New York, declaring it as an offence and pledging the members not to indulge in it, rather to take steps by way of local legislation to curb it by way creating special courts and tribunal.

The convention of 1948 defines Genocide “as any of number of acts committed with the intent to destroy, in whole or in part, a national, ethnic, religious group, causing serious bodily or mental harm, inflicting conditions of life calculated to bringing about physical destruction of that group or community, imposing measures intended to prevent births within the group or forcefully transferring the children of the group to another group”.

Not only genocide but its direct or indirect incitement, complicity to it and to the offenders entails punishment to any offender, may they be, constitutionally responsible rulers, public officials or private individuals. Every nation signing, ratifying or acceding to the treaty has to take measures for constituting tribunals within the country to try such offenders.

A dispute between the contracting parties can be submitted to the International Court of Justice under the 1948 UN convention.

Further, with the setting up of the International Criminal Court after the Rome Convention of 1995, the offence of genocide, aggression, etc., can be tried by this court on criminal side, at Hague.
India signed the 1948 convention on November 29 1949, deposited the ratification treaty in August 1959. Canada signed in 1949 and deposited the ratification treaty in September 1952. America has neither signed nor ratified the convention.

America refused to sign the Rome Convention also, India absented. But later on U.S.A had to sign under public pressure during the reign of Bill Clinton. The successor Bush government virtually nullified the same by passing a legislation authorizing the President of USA to use force to retrieve from the custody of International Criminal Court any American personnel, official or individual, intended to be tried by the court.

The civil suit before the International Court of Justice by Bosnia, gave rise to many questions of International Law relating to its Jurisdiction, the locus of a state to invoke the jurisdiction of the court and powers of the court to bring the guilty to justice.

The first issue rose before the court was that Bosnia was not the contracting party to the 1948 convention, it being a breakaway territorial entity from Federal Republic of Yugoslavia and was not a continuation entity. Serbia the respondent state denied its complicity and the allegation that the Bosnian Serb forces, the leaders in Belgrade and President Slobodan Milosevic were fully aware of the deep seated hatred which reigned between the Bosnian Serbs and the Muslims in the region and that they knew that the massacre was likely to occur and Serbia, thereby having violated the convention on Genocide is guilty of the offence. The International Court of Justice freed Serbia of the stigma of the genocide nation and absolved it from having to pay war reparations as demanded by Bosnia. At the same time, Bosnia felt satisfied that it has obtained at least recognition of Serbia’s guilt.

The further question that arise out of the situation and the judgment are whether a petition can be moved by the general public to the International Court of Justice for declaring a particular act as genocide or the members of a community living in another country can have its parliament to declare an act committed outside its territory as an act of genocide.

The judgment of the International Court of Justice in Bosnia’s case replies both the questions by holding that a dispute as per article ix of the Convention on the Prevention and Punishment of the Crime of Genocide can be raised by the contracting parties only. The contracting parties to the convention are the states. It has to be a dispute between the contracting parties ie the states affected by the alleged act. As an example an act committed in India, obliges the government of India create special tribunals for fulfilling objectives of the 1948 convention, having ratified the same, and does not impose any obligation on any foreign country to raise the dispute or make a declaration of the nature of the act.

Under the Rome Convention, jurisdiction of the International Criminal Court can be invoked by a group of people of that country having suffered genocide but the country must be signatory to the convention having consented to the submission to the jurisdiction of the International Criminal Court. The tragedy of the situation is that India is not signatory to that convention as such this court can not exercise jurisdiction over a non consenting party.

India needs to be sensitive to its obligations as party to the convention.

[The writer is a senior advocate based in Chandigarh 91-9815133530. jogindersingh_toor@yahoo.com]

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