Is fragmentation an issue or an exception? Analysis of the Tadic and Bosnian Genocide cases
Fragmentation occurs when international proceedings that involve the same parties and raise the same issues arrive at different conclusions. The conflict in the ICTY’s Tadic decision and the ICJ’s Bosnian Genocide decision – an issue or an exception?
When two sets of international proceedings that involve the same parties and raise the same issues arrive at different conclusions or interpretations, they create a conflict. This conflict is fragmentation and it occurs where a general law has been stated in one decision but has been divergently interpreted in another. Fragmentation is an issue that occurs in international dispute settlement and this paper will focus on the Tadic and Bosnian Genocide cases. Tadic was concerned with individual criminal responsibility of the accused under international humanitarian law and required a determination of whether the conflict was international or internal. The ICTY created the “overall control” test, setting aside the “effective control” test created by the ICJ in Nicaragua as it was, inter alia, too restrictive to the circumstances in Tadic. Years later, the ICJ in Bosnian Genocide, in deciding whether the massacres in Srebrenica could be attributed to the Federal Republic of Yugoslavia (“FRY”), reaffirmed the “effective control” test from Nicaragua, setting aside the principle developed in Tadic. This paper will discuss whether this is an example of fragmentation and whether this is an issue or an exception.
Tadic-Bosnian Genocide: an example of fragmentation?
In Bosnian Genocide, the ICJ identified that the ICTY in Tadic was not called upon to rule on a question of state responsibility since its jurisdiction is limited to individual criminal responsibility. In particular, the ICJ said that the ICTY addressed an issue which was “not indispensable for the exercise of its jurisdiction.” The ICJ recognised the importance of the ICTY’s decision in Tadic regarding the accused’s criminal liability, but it could not recognise the ICTY’s findings regarding general international law as this was neither within the purview of the ICTY’s jurisdiction nor necessary for deciding the criminal liability of Tadic. Such commentary of the ICJ suggests they saw this as a fragmentation of international law. The ICTY was meant to ascertain individual criminal responsibility but went beyond and looked at state responsibility. Further, the ICJ’s response; that they would instead rely on their own settled jurisprudence (Nicaragua), shows the dismissal of the ICTY’s decision and a reinstatement of their own. Therefore, Tadic can be seen as an example of a judicial body overstepping the scope of its jurisdiction.
Alternatively, it may be argued that this is not an example of fragmentation given the differences between the two cases. Firstly, the ICJ was concerned with determining the FRY’s role in the Balkan conflict, whilst the ICTY focused on the guilt of the accused; a member of an armed group. Secondly, despite both cases being set in the Balkan conflict, the facts occurred at different times and locations. Finally, the ICTY had to determine individual criminal responsibility by way of international humanitarian law, whereas the ICJ focused on the attribution of state responsibility.
Fragmentation: issue or exception?
Since the international judicial system is horizontal and there is no hierarchy, it is evident how fragmentation can become an issue. There may be mutual respect for the decisions of each judicial body, but there is no obligation to follow each other’s decisions. In Tadic and Bosnian Genocide, the identities, characteristics and purposes of the ICJ and ICTY contributed to the fragmentation.
The ICJ is a permanent and established court that is the principal judicial organ of the UN. Whilst its judgements are not precedent, they are influential in international law. Conversely, the ICTY - an ad hoc tribunal established by the Security Council to particularly deal with the Balkan conflict - was a temporary tribunal with limited jurisdiction. Ad hoc tribunals have been described as being bold and often seek to assert their independence. These characteristics enabled the ICTY to act beyond its jurisdiction, thus causing fragmentation. The Tadic and Bosnian Genocide situation is a very rare example of fragmentation between the ICJ and ICTY. Nevertheless, the standing and authority of the ICJ in international dispute settlement, make it possible for other courts and tribunals to turn to its jurisprudence and run the risk of creating a fragmentation issue.
Overall, the situation of the Tadic and Bosnian Genocide cases indicates that it is an example of fragmentation. In particular, the ICJ’s chastising comments about Tadic shows their perception that the ICTY deviated from general principles of law. Whilst fragmentation is an issue in international dispute settlement, the unique characteristics of Tadic and Bosnian Genocide suggest that it was an exception with respect to ICJ and ICTY relations. Essentially, Tadic and Bosnian Genocide provided an example of what happens when another court or tribunal meddles with settled ICJ jurisprudence.
- Yuval Shany, ‘One Law to Rule Them All: Should International Courts Be Viewed as Guardians of Procedural Order and Legal Uniformity?’ in Ole Kristian Fauchald and Andre Nolkaemper (eds) Practice of International Courts and the (De-)Fragmentation of International Law (Hart 2014)
- Philippa Webb “Explaining Judicial Integration and Fragmentation” International Judicial Integration and Fragmentation, Oxford Scholarly Authorities on International Law (9 May 2013)
- Prosecutor v Tadić (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-94-1-A, 15 July 1999)
- Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Judgement)  ICJ Rep 43
- Pierre-Marie Dupuy and Jorge E Vinuales, ‘The Challenge of “Proliferation”: An Anatomy of the Debate’ in Cesare PR Romano, Karen J Alter, and Yuval Shany (eds) The Oxford Handbook of International Adjudication (OUP 2014)