Last Thursday, the President of the International Court of Justice (ICJ) made a statement announcing that the Court was “not properly” seised of a request for revision of the Court’s merits Judgment of 26 February 2007 in the Bosnian Genocide Convention Case (Bosnia and Herzegovina v. Serbia). The key question was whether the request for revision should have been considered as one made by Bosnia and Herzegovina and this depended on whether the person who made the request was to be considered as Agent for Bosnia. In coming to its decision not to take any action with regard to the request for revision, the Court concluded “that no decision has been taken by the competent authorities, on behalf of Bosnia and Herzegovina as a State, to request the revision of the Judgment of 26 February 2007 in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia)”.
In effect, the Court rejected the request for revision on the grounds that the person who claimed to be the Agent for Bosnia, Mr. Sakib Softić, had not in fact been appointed as Agent by the state for the purpose of these particular proceedings. Mr Softić had been appointed the Agent for Bosnia, in 2002, in the original Bosnian Genocide Convention case. The present controversy surrounding his authority arose from the nature of the Presidency of Bosnia – the Head of State – which is not a single individual but rather composed of 3 individuals: one Bosniac, one Serb and one Croat. As it emerged from separate letters written to the Court by each of the members of the Presidency, no decision was made by the Presidency to request revision and only the Bosniac member of the Presidency, Mr. Bakir Izetbegović, was of the view that the appointment of Mr Softić as Agent in the original case remained valid.
Whether the Court was right to reject the “request” for revision in this case depends on whether a request for revision is to be considered as a new case as opposed to a separate phase of a previous case. If a request for revision is simply a separate phase of a prior case – a form of incidental proceedings – then the authority of the previous Agent would extend to that new phase as Agents exercise their functions throughout a case, unless they are replaced by the state. However, if a request for revision is a new case the Court would be right to require a new indication from the state as to who the Agent is, thus impliedly confirming that the state has authorised the initiation of those new proceedings.
In my view, the Court was right to hold, if only implicitly, that requests for revision are new proceedings and not simply continuations of a previous case. There is a qualitative difference between a request for revision (or indeed interpretation) of a prior judgment arising from proceedings that have essentially concluded with the case removed from the Court’s list of pending cases, on the one hand, and the initiation of incidental proceedings (such as provisional measures for interim protection or making preliminary objections) in an on-going case, on the other hand. The initiation of incidental proceedings in an on-going case is no more than a question of litigation strategy in proceedings that would otherwise continue. The parties to the case are already locked into the litigation and the question is just one of how to conduct it. However, in the case of revision or interpretation of a merits judgment, the state in question faces the question of whether it wishes to resume litigation or not, in circumstances where it is not presently engaged in litigation. The taking of that step is far more significant, and it is only right to have substantive evidence that the person who claims to take this step on behalf of the state has indeed been authorised by the state to do so. The step being taken here is one which effects a new direction (even if a friendly one) in the relationship between the two states. Although a state may have chosen to litigate (or been dragged into litigation) with another state at one point, it should not lightly be assumed that it wishes to resume litigation many years after the case has essentially closed. It is worth recalling that requests for revision may be made up to 10 years after a judgment is given (Art. 61(5) of the Statute – the “Bosnian request” was made just a few days short of that 10 year deadline). In the case of requests for interpretation there is no time limit stipulated in Art. 60 of the Statute and such a request may be initiated many decades later (as happened in the Temple of Preah Vihear Case where the request was made nearly 50 years after the judgment was delivered).
Prior Practice With Regard to Requests for Revision of ICJ Judgments
In addition, the position that requests for revisions (and for interpretations of previous judgments) are different cases from the original proceedings is confirmed by the previous practice of the Court and of parties in proceedings for revision, as well as from the Rules of the Court.
There have not been many prior requests for revision of ICJ judgments. Prior to this year, only 3 applications for revisions of ICJ’s judgment had been filed in the entire history of the Court. One of those 3 was the application by Yugoslavia for revision of the Preliminary Objections Judgment in the Bosnian Genocide Convention Case. Amazingly, the 2017 “Bosnian request” for revision was the second request for revision made in February 2017, following on from Malaysia’s application (made on February 2) for revision of the Court’s May 2008 Judgment in the case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore).
In each of the previous cases where a request for revision or indeed for interpretation of a previous judgment of the Court has been made, the Court has entered these new proceedings as a separate case in its list of pending cases. In addition, in these previous requests for revision and for interpretation, the parties have also treated the proceedings as a new case. We know this because, in these cases, the parties have not treated their previous appointment of a person as an ad hoc judge as automatically continuing, but have made new decisions regarding the appointments of an ad hoc judge, even though in some cases they have appointed the same person (see for example para. 55 of Malaysia’s recently filed request for revision). If the parties and the Court had thought that the proceedings for revision and interpretation were simply another phase of the original case then the original appointment of ad hoc judges would simply have carried over. Unless those persons had resigned, the parties would not be entitled to change the appointment as there is no provision that allows a party to unilaterally remove an ad hoc judge that it has appointed and since the ad hoc judge is a member of the bench on equal terms as the permanent members.
Similarly, in the Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras), where the original case was heard by a chamber of the Court, a new chamber was formed to hear the application for revision. This was despite the fact that Art. 17(4) of the ICJ’s Rules provides that members of a Chamber shall continue to sit in all phases of a case, even after they have left the Court. Clearly this was not thought to be a new phase of the same case but rather a new case. Indeed Judge Oda who had been part of the original Chamber and who was still on the Court was not part of the new Chamber (for reasons explained in a Declaration appended to the Order forming the Chamber)
That requests for revision and interpretation of judgments are not merely incidental proceedings in on-going cases can also be seen from the fact that while Part III, Section D of the ICJ’s Rules deals with Incidental Proceedings (Interim Measures of Protection, Preliminary Objections, Counter Claims, Intervention etc), the procedure regarding requests for revision and interpretation are in a different section – Section F, subsection 2
Once it is accepted that the request for revision is a new case, then it does follow that the appointment by Bosnia of an agent back in 2002 in relation to the original case is insufficient to authorise that person to initiate revision proceedings.
Yet Another Case of Inconsistency in the ICJ Decisions Relating to the Former Yugoslavia?
The decision of last week is another in the series of ICJ cases arising out of the break-up of the former Yugoslavia. Most unfortunately, one of the defining features of that series was the remarkable inconsistency in the ICJ’s approach to the status of Serbia (formerly the Federal Republic of Yugoslavia). The decisions suggested that Serbia was both a party to the ICJ Statute that could be sued at the ICJ and not a party to the Statute and thus unable to bring a case in the same period of time (on which see these articles by Blum, p. 39 & (2009) 103 AJIL 264 and Fernando Lusa Bordin, (2011) 10 LPICT 315). David Scheffer, who was named as “Deputy Agent” in the “Bosnian Request” for revision, has pointed out, in a post on Just Security, that when Yugoslavia (Serbia) requested revision of the Preliminary Objections in the original case, Mr. Softić’s appointment as agent in the original case seemed to have been accepted as carrying over to the Yugoslav request for revision. Thus there is again the spectre of inconsistency by the ICJ, though this time in favour of Serbia.
Another possible hint of inconsistency by the ICJ relates to how it dealt with whether the collective Bosnian Presidency had made a decision to initiate a case at the ICJ. In fact, Yugoslavia argued in the original case that the proceedings had not been authorised by the Bosnian Presidency but only by the President of the Presidency, Mr. Alija Izetbegović (who incidentally is the father of the current Bosniac member of the Presidency and the only member to support the application for revision). On that occasion, the Court rejected the Yugoslav argument that Mr Izetbegović was not the Bosnian head of state because, according to the Court, he had received international recognition as the head of state (see Bosnia Genocide Preliminary Objections Judgment, para. 44 and also the Provisional Measures Order of 8 April 1993, para. 13). It thus held that the original proceedings had been properly initiated by Bosnia.
However, despite the apparent inconsistency pointed out by David Scheffer, there are arguably good reasons for the Court accepting Mr. Softić as Agent in the previous proceedings for revision of the Preliminary Objections judgment while rejecting him in that role in this case. The differences are that in the prior revision proceedings, the original case in respect of which Mr. Softić had a valid appointment as Agent was ongoing (indeed he was appointed as Agent for that case just a few weeks before the oral hearings in the revision proceedings commenced), and Bosnia was respondent in the revision proceedings. Although the revision proceedings constitute a different case, where the original proceedings are on-going the consideration outlined earlier about revision constituting a different direction in the relationship between the parties does not hold in the same way. Also, as Bosnia was respondent in that earlier revision proceedings it was reasonable to assume that Bosnia had appointed Mr. Softić as Agent for the purposes of the revision proceedings as well, since the Yugoslav application would have been delivered by the Court to Bosnia which then presumably instructed Mr. Softić. There was no opposition by Bosnian authorities to displace that presumption.
Thus any inconsistency between the earlier revisions proceedings brought by Serbia and the present one is apparent only. In the present “case” there would seem to be good reasons to consider, in 2002, one person as an Agent for the purposes of revision proceedings brought against the State, but not an Agent for the purposes of initiating revision proceedings fifteen years later.