Introduction
In the landmark Bosnia Genocide Case (2007), the International Court of Justice (ICJ) decided a landmark question of international responsibility under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Bosnia and Herzegovina sued Serbia and Montenegro (at the time the Federal Republic of Yugoslavia) for genocide in the Bosnian War, the Srebrenica massacre in July 1995. The case is a milestone in international law because it was the first instance where the ICJ gave an opinion on the liability of a State under the Genocide Convention. The Court’s nuanced judgment clarified and extended our understanding of State obligations under international humanitarian law. This note covers the facts, legal foundation, interpretive rationale, and broader implications of the decision.
Facts
The conflict in Bosnia and Herzegovina following the dissolution of the Socialist Federal Republic of Yugoslavia was characterized by widespread ethnic cleansing. Bosnian Serb forces backed by Serbian troops, assaulted Bosniak (Bosnian Muslim) civilians using ethnic cleansing, arrest, and genocidal mass killings. The Srebrenica massacre was the worst atrocity, during which over 7,000 Bosnian Muslim men and boys were rounded up and executed in a summary fashion by Bosnian Serb forces. The atrocity was later described as genocide by the International Criminal Tribunal for the former Yugoslavia (ICTY).
Bosnia had instituted proceedings against Serbia before the ICJ in 1993 alleging that Serbia had committed a breach of the Genocide Convention. The case had entailed allegations of direct and indirect complicity in genocide, failure to prevent genocide, and failure to punish genocide. Procedural delay and objections followed, before the ICJ made its final judgment in February 2007, over ten years after the case had been instituted.
Issues
The Court resolved certain fundamental issues of law that affected international jurisprudence profoundly:
Jurisdiction of the ICJ: Whether the Court, under Article IX of the Genocide Convention, had jurisdiction to adjudicate claims for State responsibility.
Definition of Genocide: Whether the acts that took place and more so in Srebrenica, constituted genocide under the terms of Article II of the Convention.
Attribution of Conduct: Whether the conduct of the Bosnian Serb forces is to be attributed to Serbia under international law.
Obligation to Prevent and Punish: The scope and character of the obligation of States under Article I of the Convention.
Standard of Proof: To what standard of proof recourse is had when holding a State responsible for acts of genocide or complicity.
Arguments of the Parties
Bosnia’s Submissions: Bosnia submitted that Serbia was directly and indirectly responsible for the genocide. Bosnia submitted that Serbia exercised effective control or full control over the Bosnian Serb army, provided financial, logistical, and political support, and failed to prevent and punish the perpetrators. Bosnia emphasized that Serbia was aware of the genocidal intent and scope of the crimes, especially at Srebrenica.
Serbia’s Defence: Serbia disputed all allegations, stating that it did not commit genocide and had no intention of doing so nor command over Bosnian Serb armed forces. It averred that things done in the course of war did not constitute genocide and, even if so; the actors of those acts were non-State actors who acted on their own volition. Serbia also opposed admissibility and jurisdiction of the case.
Judgement
Jurisdictional Order: The ICJ exercised jurisdiction pursuant to Article IX of the Convention, deeming the Genocide Convention to apply to disputes involving State responsibility. The Court further declared Serbia to be the successor State of the Federal Republic of Yugoslavia, and hence subject to provisions of the treaty.
Definition and Commission of Genocide: The Court reaffirmed the definition of genocide enshrined in Article II of the Convention—acts committed with intent to physical destruction, total or partial, of a national, ethnical, racial or religious group. It agreed with ICTY that Srebrenica massacre was an act of genocide. But believed that there was no clear cut evidence that Serbia directly committed, or conspired to commit genocide or had genocidal intent.
Attribution of Conduct: The ICJ employed the “effective control” test (decided in the Nicaragua case) to determine whether or not the action of the Bosnian Serb troops should be attributed to Serbia. The court confirmed that Serbia had extensive meaningful control over the Republika Srpska authorities and the armed forces but did not have effective control of particular operations committing genocide. In this way, conduct could not be attributed directly to Serbia.
Failure to Prevent Genocide: Above all, the Court ruled Serbia in breach of its duty to prevent genocide. It ruled that by virtue of Serbia’s control over the Bosnian Serb authorities, it was with foresight and a duty to prevent the massacre. Its inability to do so was equally a violation of Article I of the Convention. The ICJ reaffirmed that the preventive obligation of genocide applies when there is a power of influence and awareness by the State of serious risk.
Failure to Punish Genocide: Serbia also failed to punish genocide by not extraditing and arresting key perpetrators, including Ratko Mladić, to the ICTY. The Court censured Serbia for refusing to cooperate with the Tribunal and not fulfilling international legal obligations under international law to prosecute or extradite individuals suspected of genocide.
Standard of Proof: The ICJ applied a very high standard, requiring “fully conclusive” evidence of State responsibility for genocide. While not identical to the criminal standard of “beyond reasonable doubt,” it required a high level of certainty due to the seriousness of the charges. The Court concluded that atrocities had indeed occurred, but insufficient evidence existed to establish Serbia’s specific intent or direct participation.
Legacy
The ICJ’s decision is historic in several respects:
It clarified that the Genocide Convention binds individuals and States alike, affirming that States can be held accountable for violations.
The ruling drew a clear distinction between individual responsibility (as ascertained by tribunals like the ICTY) and State responsibility, and it contributed to the development of international legal doctrine on attribution and complicity.
In holding that a State is responsible for failing to prevent genocide, but not for the commission of the acts, the Court extended the realm of preventive obligations in international law.
The case showed how the ICJ could cope with complex matrices of facts over a long span of time, illustrating the virtues and vices of international adjudication.
Conclusion
The 2007 case law of Bosnia and Herzegovina v. Serbia and Montenegro is a pillar in the international humanitarian law jurisprudence. Even though the Court did not find Serbia responsible for committing the crime of genocide per se, its finding of the Srebrenica massacre as an act of genocide and condemnation of the Serbian State for its inability to prevent and punish such an act highlighted the seriousness of State responsibility under the Genocide Convention. The decision made major legal precedents on the quantum of evidence, causation of conduct, and scope of obligation in international law. It also clearly sent the message to the world that States cannot remain inactive and watch atrocities being perpetrated. The principles set in this case will continue to inform the interpretation of law as well as State action towards the prevention of mass atrocities in the years ahead.
Sources
- International Court of Justice
- International Criminal Tribunal for the former Yugoslavia
- United Nations
- International Law Commission documents
- Geneva Convention 1948
This article is written by Shourya Singh, a student of NLU Jodhpur
