ConflictBarometer_2015

MEASURES OF CONFLICT RESOLUTION
AUTHORITATIVE DECISIONS BY THE ICJ
The year 2015 has seen the International Court of
Justice (ICJ) make four judgements and nine court orders.
While no new cases were introduced to the Court in
2015, three existing cases were concluded.
CROATIA v. SERBIA
On February 3, the ICJ delivered its judgment in the case
concerning ''Application of the Convention on the
Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), rejecting both Croatia's claim and Serbia's
counter-claim over alleged violations of the Genocide
Convention, committed during the armed conflict from
1991 until 1995.
The application was filed by the Government of the Republic
of Croatia against the Federal Republic of Yugoslavia on
07/02/99, and invoked ''Article IX of the Genocide Convention
as the jurisdictional basis of the Court." Following
February 2003, when the FRY notified the Court that its
name had changed to ''Serbia and Montenegro," and
Mon-tenegro's subsequent declaration of independence in
2006, Serbia remained the sole respondent in the case.
Serbia's counter-claim was filed on 01/04/10. Public
hearings on the merits of both, Croatia's claim and
Serbia's counter-claim, were held in 2014. In its final
judgement on February 3 the Court underlined the
sovereignty of both States after having emerged from the
break-up of the Socialist Federal Republic of Yugoslavia. It
further recalled that, shortly after Croatia's declaration of
independence on 06/25/91, an armed conflict broke out
between Croatia's armed forces, the so-called Serb forces
created by parts of the Serb minority within Croatia, as well
as several anti-independence paramilitary groups and, from
September 1991 onwards, the Yugoslav National Army
(JNA).
Croatia claimed that genocide had been committed from
late 1991 until 1995, when Serb forces and the JNA controlled
approximately one-third of Croatian territory within
its boundaries of the SFRY. Following a sequence of military
operations in the spring and summer of 1995, Croatia regained
control over the greater part of the previously lost
territory leading up to Operation Storm in August 1995,
during which the genocidal acts asserted by Serbia's counterclaim
allegedly took place.
Croatia had argued that certain attacks were not simply
directed against an opposing military force, but ''against the
civil population and subsequently that the aim and intent
of these attacks was the destruction of ethnic Croats in the
region." While the Court found that acts perpetrated by the
JNA and Serb forces against ethnic Croats constituted the
actus reus of genocide ''within the meaning of Article II (a)
and (b) of the 1948 Genocide Convention, the acts that
would fall under Article II (c) and (d) could not be sufficiently
established under the same parameters." Furthermore, the
Court concluded that the crucial ''mental element of intent
to destroy an ethnic group, the dolus specialis of genocide,
had not been established." In fact, the ICJ found that the
aim toward the group in question was one of forceful
displace-ment, not of destruction, and so dismissed Croatia's
claim in its entirety.
Serbia's counter-claim accused Croatia of committing genocide
during and after Operation Storm in 1995. One crucial
piece of evidence here was the transcript of a meeting held
between Franjo Tudjman, then President of the Republic of
Croatia, and the country's military leaders on the island of
Brioni in order to prepare Operation Storm.
Serbia had argued that this transcript was proof of the aim of
the alleged genocide acts perpetrated during Operation
Storm. However, the Court found that the existence of an
intent to destroy, in whole or in part, the national or
ethnic Serbs in Croatia had not been sufficiently
demonstrated and hence the inten-tional element of
genocide, the dolus specialis, was lacking. While certain
acts committed by the forces of the Republic of Croatia
fell within the definition of Article II (a) and (b), and
constituted the actus reus of genocide, they were not of
sufficient gravity to demonstrate reasonable existence of
genocidal intent. The ICJ found that neither genocide, nor
other violations of the Genocide Convention had been
proven, and rejected Serbia's counter-claim in its entirety.
Both governments accepted the judgement. While the outcome
of this ruling was widely expected, it took the
Court 16 years to decide that neither state had a claim
against the other.
This, and the financial expense of the proceeding had, yet
again, made some critics question the significance and
efficiency of the ICJ. Others however, have pointed out that
this case highlighted the inherent difficulty in legally
applying the Genocide Convention. This being primarily due
to its narrow definition of genocide; demanding proof of
definitive intent to destroy, in whole or in part, a
national, ethnical, racial or religious group.
TIMOR-LESTE v. AUSTRALIA
The case concerning ''Questions relating to the Seizure and
Detention of Certain Documents and Data (Timor-Leste v.
Australia)" was brought before the ICJ by the Democratic
Republic of Timor-Leste against the Commonwealth of Australia
[→ Timor-Leste – Australia]. This occurred amid
strained relations between the two states over a spy scandal
result-ing in Timor-Leste contesting the validity of the
''Treaty on Certain Maritime arrangements in the Timor Sea
regulating the joint exploration and utilisation of gas and oil
deposits in the Timor Sea" estimated to be worth USD 40
billion at the Permanent Court of Arbitration on 12/03/13.
On 12/17/13 Timor-Leste instituted proceedings against
Australia at the ICJ, contending that on 12/03/13 agents of
the Australian Security Intelligence Organisation, ''allegedly
acting under a warrant issued by the Attorney-General of
Australia, seized documents and electronic data," inter alia,
from the office of a legal adviser to Timor-Leste in the
Australian capital Canberra in order to gain intelligence of
the applicant's strategy and negotiation positions. The documents
in question contained correspondence between the
government of Timor-Leste and its legal advisers, relating to
the pending ''Arbitration under the Timor Sea Treaty of 20
May 2002" between the two states. Timor-Leste contended
that Australia, through seizure and detention of
these documents and data, had violated its sovereignty and
state property under international law, further requesting
that Australia should issue a formal apology and
immediately return the documents and data, as well as any
copies of the material.
On 03/03/14, the Court ordered Australia not to use the
seized materials to the disadvantage of Timor-Leste until the
case has been concluded and to keep the seized documents
under seal. Furthermore, Australia was ordered not to interfere
in any way in communications between Timor-Leste
and its legal advisers in relation to the pending ''Arbitration
under the Timor Sea Treaty of 20 May 2002" between the
two States or with ''any future bilateral negotiations
concerning maritime delimitation.
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