Norma relacionada
Bosnia and Herzegovina
Practice Relating to Rule 150. Reparation
In 2006, in its oral pleadings before the ICJ in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), Bosnia and Herzegovina stated:
1. the basic principle, enunciated by the [Permanent Court of International Justice] in the Factory at Chorzów case, “is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act has not been committed”; this basic principle is incorporated in Article 31 of the 2001 Articles of the International Law Commission [ILC];
2. pursuant to the provisions of Article 34 of those same Articles, “[f]ull reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction …”;
3. inasmuch as making restitution means “to re-establish the situation which existed before the wrongful act was committed” – this being a quotation from the ILC – it constitutes a prime means of reparation, since it is, by definition, the one best suited to effectively ensuring full redress for the injury sustained;
4. however, to the extent that restitutio in integrum proves materially impossible or “out of all proportion to the benefit deriving from restitution instead of compensation”, reparation may take the form of compensation involving “payment of a sum corresponding to the value which a restitution in kind would bear”;
5. and lastly, “[t]he State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation”. 
Bosnia and Herzegovina, Oral pleadings before the ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), 7 March 2006, Verbatim Record CR 2006/11, pp. 29–30, § 8.
In 1993, in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), Bosnia and Herzegovina initiated proceedings, claiming
that reparations must be paid by Yugoslavia (Serbia and Montenegro) to the Applicant for all the death, destruction, physical and mental injury, property damage and environmental harm that have been inflicted upon It and its People by the Respondent and its agents and surrogates in violation of all the sources of international law specified above and in particular for grossly violating the Genocide Convention, the United Nations Charter, the four Geneva Conventions of 1949 and their Additional Protocol I of 1977, the Hague Regulations on Land Warfare of 1907, the Universal Declaration of Human Rights of 1948, and numerous other international treaties and agreements, principles of customary international law, the laws of war, international humanitarian law, international criminal law, and jus cogens that will be specified in further submissions by Bosnia and Herzegovina. 
Bosnia and Herzegovina, Applications instituting proceedings submitted to the ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), 20 March 1993, § 134.
Bosnia and Herzegovina therefore requested the Court to adjudge and declare
that Yugoslavia (Serbia and Montenegro) ha[d] an obligation to pay Bosnia and Herzegovina, in its own right and as parens patriae for its citizens, reparations for damages to persons and property as well as to the Bosnian economy and environment caused by the foregoing violations of international law in a sum to be determined by the Court. Bosnia and Herzegovina reserve[d] the right to introduce to the Court a precise evaluation of the damages caused by Yugoslavia (Serbia and Montenegro). 
Bosnia and Herzegovina, Applications instituting proceedings submitted to the ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), 20 March 1993, § 135 (r).
Similarly, in its memorial submitted to the ICJ in 1994, Bosnia and Herzegovina asked:
6. That the Federal Republic of Yugoslavia (Serbia and Montenegro) must wipe out the consequences of its international wrongful acts and must restore the situation existing before the violations of the Convention on the Prevention and Punishment of the Crime of Genocide were committed;
7. That, as a result of the international responsibility incurred for the above violations of the Convention on the Prevention and Punishment of the Crime of Genocide, the Federal Republic of Yugoslavia (Serbia and Montenegro) is required to pay, and the Republic of Bosnia and Herzegovina is entitled to receive, in its own right and as parens patriae for its citizens, full compensation for the damages and losses caused, in the amount to be determined by the Court in a subsequent phase of the proceedings in this case. 
Bosnia and Herzegovina, Memorial of the Government of Bosnia and Herzegovina, Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), 15 April 1994, p. 294, §§ 6–7.
In its oral pleadings before the ICJ in 2006, Bosnia and Herzegovina stated:
8. It is doubtless unnecessary, Madam President, to dwell on the general principles applicable – especially since, let me repeat, the Respondent did not challenge them when they were set out in some detail in the written pleadings of Bosnia and Herzegovina. Besides, they are well known and uncontroversial. It is therefore sufficient to recall that:
the basic principle, enunciated by the PCIJ in the Factory at Chorzów case, “is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act has not been committed”;
this basic principle is incorporated in Article 31 of the 2001 Articles of the International Law Commission;
1. pursuant to the provisions of Article 34 of those same Articles, “[f]ull reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction …”;
2. inasmuch as making restitution means “to re-establish the situation which existed before the wrongful act was committed” - this being a quotation from the ILC [International Law Commission] - it constitutes a prime means of reparation, since it is, by definition, the one best suited to effectively ensuring full redress for the injury sustained;
3. however, to the extent that restitutio in integrum proves materially impossible or “out of all proportion to the benefit deriving from restitution instead of compensation”, reparation may take the form of compensation involving “payment of a sum corresponding to the value which a restitution in kind would bear”;
4. and lastly, “[t]he State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation”.
2. Compensation
13. As I said earlier, Bosnia and Herzegovina is not asking the Court to set the amount of compensation. Indeed, neither this august body, Members of the Court, nor we ourselves have the necessary information for that purpose, not even for the purpose of putting forward some idea of the amount. Bosnia and Herzegovina is convinced that this task lends itself more readily to diplomatic negotiation in good faith, rather than judicial debate, if only because this is undoubtedly a matter for experts rather than jurists – provided, however (though these are important conditions), as I also said before, that the negotiation is not too protracted and that it can be based on a judgment which clearly establishes the applicable legal principles.
14. It seems to us that these should consist, on the one hand, of an enumeration of compensable injuries and, on the other, of an indication of the principles applicable to the calculation of compensation. Bosnia and Herzegovina, for its part, considers that, for both purposes, the rules contained in the relevant provisions of the ILC [A]rticles on State Responsibility for Internationally Wrongful Acts, although they have not been incorporated in any formal convention, reflect the generally applicable rules on the subject and certainly constitute a necessary starting point.
16. There is no need to linger over the principles applicable to compensation in the present case … Those principles are known and should not really present any particular problems in this case. It is true that a serious violation of a norm of jus cogens is involved but, after lengthy deliberations, the ILC [International Law Commission] chose not to hold that this could result in an entitlement to punitive damages and no such provision is made in Articles 40 and 41, which deal with violations of this kind. Bosnia and Herzegovina therefore respectfully requests you, Members of the Court, to indicate the classic basic principles applicable for the guidance of the Parties in the implementation of your Judgment. 
Bosnia and Herzegovina, Oral pleadings before the ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), 7 March 2006, Verbatim Record CR 2006/11, pp. 29–33, §§ 8, 13–14 and 16.
Concluding its oral pleadings, Bosnia and Herzegovina, in its final submissions, requested the ICJ to adjudge and declare:
6. That the violations of international law set out in submissions 1 to 5 constitute wrongful acts attributable to Serbia and Montenegro which entail its international responsibility, and, accordingly,
(b) that Serbia and Montenegro must redress the consequences of its international wrongful acts and, as a result of the international responsibility incurred for the above violations of the Convention on the Prevention and Punishment of the Crime of Genocide, must pay, and Bosnia and Herzegovina is entitled to receive, in its own right and as parens patriae for its citizens, full compensation for the damages and losses caused. That, in particular, the compensation shall cover any financially assessable damage which corresponds to:
(i) damage caused to natural persons by the acts enumerated in Article III of the Convention, including non-material damage suffered by the victims or the surviving heirs or successors and their dependants;
(ii) material damage caused to properties of natural or legal persons, public or private, by the acts enumerated in Article III of the Convention;
(iii) material damage suffered by Bosnia and Herzegovina in respect of expenditures reasonably incurred to remedy or mitigate damage flowing from the acts enumerated in Article III of the Convention;
(c) that the nature, form and amount of the compensation shall be determined by the Court, failing agreement thereon between the Parties one year after the Judgment of the Court, and that the Court shall reserve the subsequent procedure for that purpose;
(d) that Serbia and Montenegro shall provide specific guarantees and assurances that it will not repeat the wrongful acts complained of, the form of which guarantees and assurances is to be determined by the Court. 
Bosnia and Herzegovina, Oral pleadings before the ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), 24 April 2006, Verbatim Record CR 2006/37, pp. 60–61, § 6.
In 2006, in its oral pleadings before the ICJ in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), Bosnia and Herzegovina stated:
8. It is doubtless unnecessary, Madam President, to dwell on the general principles applicable – especially since, let me repeat, the Respondent did not challenge them when they were set out in some detail in the written pleadings of Bosnia and Herzegovina. Besides, they are well known and uncontroversial. It is therefore sufficient to recall that:
1. the basic principle, enunciated by the PCIJ [Permanent Court of International Justice] in the Factory at Chorzów case, “is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act has not been committed”;
2. this basic principle is incorporated in Article 31 of the 2001 Articles of the International Law Commission;
3. pursuant to the provisions of Article 34 of those same Articles, “[f]ull reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction …”;
4. inasmuch as making restitution means “to re-establish the situation which existed before the wrongful act was committed” – this being a quotation from the ILC [International Law Commission] – it constitutes a prime means of reparation, since it is, by definition, the one best suited to effectively ensuring full redress for the injury sustained;
5. however, to the extent that restitutio in integrum proves materially impossible or “out of all proportion to the benefit deriving from restitution instead of compensation”, reparation may take the form of compensation involving “payment of a sum corresponding to the value which a restitution in kind would bear”;
6. and lastly, “[t]he State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation”.
1. Restitutio in integrum
9. In principle, as the ILC stresses in its commentaries to the Articles on State Responsibility, “[r]estitution, as the first of the forms of reparation, is of particular importance where the obligation breached … arises under a peremptory norm of international law”. And genocide, as well as the other acts enumerated in Article III of the 1948 Convention, undoubtedly falls within this category.
3. Satisfaction
18. … I left out two types of injury when I listed the kinds of damage for which reparation can be made via compensation:
- moral injuries caused to the applicant State; and
- injuries under two separate heads of responsibility: incitement to commit genocide and conspiracy to commit genocide, to say nothing of the consequences of the breaches of obligations to prevent and punish genocide.
19. This is because, to tell the truth, none of these lend themselves to pecuniary appraisal. Thus, the reparation sought by Bosnia and Herzegovina in respect of these various breaches of the 1948 Convention attributable to the Respondent does not take the form of compensation …
20. Of course, this does not however mean that Serbia and Montenegro is free of any obligation to provide satisfaction to Bosnia and Herzegovina in other forms. Given the judicial context of the present case, the most natural mode of satisfaction, that which springs to mind immediately, also the most common in such circumstances, is obviously a formal declaration by this Court that Serbia and Montenegro has breached its obligations under Articles I to V – inclusive – of the Convention …
21. Members of the Court, in its Reply Bosnia and Herzegovina also asked you, under the heading “satisfaction”, to decide that the Respondent must in fact punish the individuals responsible for genocide and the other acts listed in Article III of the Convention, including those at the most senior levels, and to that end must co-operate with the International Criminal Tribunal for the former Yugoslavia …
II. Other consequences of Serbia and Montenegro’s responsibility
22. Responsibility – that is to say, the whole set of consequences deriving from an internationally wrongful act – is not reflected solely in an obligation to make reparation, even though it is too often reduced to that. Thus, the ILC Articles on State Responsibility, even before referring to reparation, lay down, in two brief Articles, three other principles under which the State responsible for an internationally wrongful act is required:
- to perform the obligation breached;
- to cease the internationally wrongful act if it is continuing; and
- “to offer appropriate assurances and guarantees of non-repetition, if circumstances so require”
(although I for one am rather tempted to see these as merely a form of satisfaction). 
Bosnia and Herzegovina, Oral pleadings before the ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), 7 March 2006, Verbatim Record CR 2006/11, pp. 29–30 and 35–37, §§ 8–9 and 18–22.