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Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))
Published online by Cambridge University Press: 01 January 2021
Abstract
Human rights — Genocide — Definition of genocide — Genocide Convention, 1948 — Conflict in Bosnia–Herzegovina — Commission of atrocities against civilian population — Whether amounting to genocide — Relationship between genocide and other violations of humanitarian law and human rights law — Whether genocide taking place — Whether imputable to Yugoslavia (Serbia and Montenegro) — Duty to prevent genocide — Extent of duty placed upon States not party to the conflict — Whether requiring active intervention to prevent genocide — Prohibition of genocide — Whether possessing status of jus cogens — Effect on powers of the Security Council under Chapter VII of the United Nations Charter
International Court of Justice — Provisional measures of protection — Jurisdiction — Requirement of prima facie basis for jurisdiction — Measures required to protect rights which might be established in the exercise of that jurisdiction — Duty of Court to refuse requests for provisional measures going beyond prima facie basis for jurisdiction — Grounds for indication of provisional measures — Effect of provisional measures — Whether legally binding — Effect on third parties — Power of Court to indicate provisional measures proprio motu — Power of Court to indicate provisional measures to prevent aggravation or extension of the dispute — Procedure on request for provisional measures — Evidence — Admissibility of media material — Findings of fact and imputability — Urgency — Duty of Court to enable both Parties to be heard — Fresh request for provisional measures — Relationship between Court and Security Council — Matter before both Court and Security Council — Duties of both organs — Genocide — Request for provisional measures to prevent genocide
International Court of Justice — Jurisdiction — Genocide Convention, 1948, Article IX — Extent of jurisdiction conferred upon the Court — Doctrine of forum prorogatum — Whether Respondent consenting to jurisdiction of the Court by making request for provisional measures going beyond established basis for jurisdiction
International organizations — United Nations — Security Council — Powers under Chapter VII of the Charter — Limits on the power of the Security Council — Allegation of conflict between binding resolution of the Council and rule of jus cogens — Resolution 713 (1991) — Maintenance of arms embargo in respect of all territories of the former Yugoslavia — Application to Bosnia–Herzegovina — Whether denying Bosnia–Herzegovina the means to prevent the commission of genocide — Whether contrary to Genocide Convention, 1948 — Whether International Court of Justice should indicate provisional measures regarding validity and effect of resolution
Sources of international law — Hierarchy of sources — Jus cogens — Resolutions of Security Council — Priority of Security Council resolution over obligations derived from other international agreements — United Nations Charter, Article 103 — Whether applicable to rules of jus cogens — Genocide Convention, 1948
States — Dissolution of State — Socialist Federal Republic of Yugoslavia — Independence of former republics of Yugoslavia — Continued existence of Yugoslav State — Bosnia–Herzegovina — Peace negotiations — Partition between the three ethnic communities
State succession — Treaties — Yugoslavia — Dissolution of Socialist Federal Republic of Yugoslavia — Succession to treaty obligations — Genocide Convention, 1948 — Bosnia–Herzegovina — Whether entitled to succeed to Convention — Deposit of notification of succession — Vienna Convention on Succession of States in respect of Treaties, 1978 — Whether declaratory of customary law — Yugoslavia (Serbia and Montenegro) — Whether continuation of Socialist Federal Republic of Yugoslavia — Whether bound by treaty obligations of Socialist Federal Republic
Governments — Head of State — Whether entitled to act on behalf of State — Bosnia–Herzegovina — Challenge to legitimacy of President and Government — Whether President entitled to seise International Court of Justice of dispute
State responsibility — For acts of armed groups operating in another State — Serb forces in Bosnia–Herzegovina — Whether acts imputable to Yugoslavia (Serbia and Montenegro) — Whether International Court of Justice should make findings of imputability in provisional measures proceedings
Territory — Acquisition of — By force — Whether prohibited under Genocide Convention, 1948 — Whether partition of territory as a result of peace negotiations incompatible with international law
Treaties — Interpretation — Genocide Convention, 1948 — Statute of the International Court of Justice — Reference to travaux préparatoires — Relationship between treaties and customary international law
War and armed conflict — Civilians — Atrocities committed against civilians in armed conflict — Genocide — Ethnic cleansing — Conflict in Bosnia–Herzegovina — Involvement of United Nations — United Nations forces — War crimes and crimes against humanity — Genocide Convention, 1948 — Jurisdiction of International Court of Justice — Geneva Conventions, 1949 — Other agreements relating to international humanitarian law — Whether conferring jurisdiction upon the Court
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