Bench Stacking and Biases: The ICJ’s Partial Decision in Yugoslavia v. NATO Members in Comparative Perspective

Since the Genocide Convention was adopted by the General Assembly in 1948, eight cases have been brought to the ICJ by invoking Article IX of the Genocide Convention as a basis of the Court’s jurisdiction. Only two cases have reached their conclusion based on the merits of the case, with others decided during preliminary proceedings, while still others remain ongoing. There have been numerous studies of ICJ impartiality, with particular focus on judges’ voting records, using large amounts of data to discern any trends and biases. This article is the first attempt to comparatively analyze ICJ genocide cases using an interpretive lens through a close reading and detailed textual analysis of the majority opinion in five cases, along with elements of oral proceedings, declarations, and separate and dissenting opinions. By comparing the ICJ’s decisions during the provisional measures phase in Bosnia v. Serbia, Yugoslavia v. NATO members, The Gambia v. Myanmar, Ukraine v. Russia, and South Africa v. Israel, evidence suggests the ICJ delivered a biased decision against Yugoslavia due to the Court’s handling of genocidal intent, its omission of significant principles that were cited in the other four cases, and the stacking of the bench with judges from the respondent states.