Bosnian Genocide case

Bosnia and Herzegovina v Serbia and Montenegro

[2007] ICJ 2 (also called the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide) is a public international law case decided by
the International Court of Justice.

the group of the Muslims of Bosnia and Herzegovina as such; and accordingly that these were
acts of genocide, committed by members of
the VRS in and around Srebrenica from about
13 July 1995.[1]
The Court found - although not unanimously - that Serbia
was neither directly responsible for the Srebrenica genocide, nor that it was complicit in it, but it did rule that Serbia had committed a breach of the Genocide Convention
by failing to prevent the genocide from occurring and for
not cooperating with the ICTY in punishing the perpetrators of the genocide, in particular General Ratko Mladi,
and for violating its obligation to comply with the provisional measures ordered by the Court.[2][3] The then VicePresident of the Court, Awn Shawkat Al-Khasawneh, dissented on the grounds that Serbias involvement, as a
principal actor or accomplice, in the genocide that took
place in Srebrenica is supported by massive and compelling evidence.[4]

Facts

Serbia was alleged to have attempted to exterminate

the Bosniak (Bosnian Muslim) population of Bosnia and
Herzegovina. The claim was led by Dr. Francis Boyle,
an adviser to Alija Izetbegovi during the Bosnian War.
The case was heard in the ICJ court in The Hague,
Netherlands, and ended on 9 May 2006.
Following is a schedule of the trial:
First round of argument
February 27, 2006 through March 7, 2006,
Bosnia and Herzegovina

The Court found:

March 8, 2006 through March 16, 2006, Serbia and Montenegro

(1) by ten votes to ve,

Rejects the objections
contained in the nal
submissions made by the
Respondent [Serbia] to
the eect that the Court
has no jurisdiction; ...

Hearing of experts, witnesses and witness-experts

March 17, 2006 through March 21, 2006,
Bosnia and Herzegovina
March 22, 2006 through March 28, 2006, Serbia and Montenegro

(2) by thirteen votes to two,

Finds that Serbia has
not committed genocide, through its organs
or persons whose acts
engage its responsibility
under customary international law, in violation
of its obligations under
the Convention on the
Prevention and Punishment of the Crime of
Genocide;

Second round
April 18, 2006 through April 24, 2006, Bosnia
and Herzegovina
May 2, 2006 through May 9, 2006, Serbia and
Montenegro

Judgment

The ICJ held that the Srebrenica massacre was a genocide. It stated the following:

(3) by thirteen votes to two,

Finds that Serbia has
not conspired to commit
genocide, nor incited
the
commission
of
genocide, in violation

The Court concludes that the acts committed at Srebrenica falling within Article II
(a) and (b) of the Convention were committed with the specic intent to destroy in part
1

2 JUDGMENT
of its obligations under
the Convention on the
Prevention and Punishment of the Crime of
Genocide;
(4) by eleven votes to four,
Finds that Serbia has
not been complicit in
genocide, in violation
of its obligations under
the Convention on the
Prevention and Punishment of the Crime of
Genocide;
(5) by twelve votes to three,
Finds that Serbia has
violated the obligation
to prevent genocide,
under the Convention
on the Prevention and
Punishment of the Crime
of Genocide, in respect
of the genocide that
occurred in Srebrenica in
July 1995;
(6) by fourteen votes to one,
Finds that Serbia has
violated its obligations
under the Convention
on the Prevention and
Punishment of the Crime
of Genocide by having
failed to transfer Ratko
Mladi, indicted for
genocide and complicity
in genocide, for trial
by the International
Criminal Tribunal for the
former Yugoslavia, and
thus having failed fully
to co-operate with that
Tribunal;

Decides that Serbia shall

immediately take eective steps to ensure full
compliance with its obligation under the Convention on the Prevention and Punishment of
the Crime of Genocide
to punish acts of genocide as dened by Article II of the Convention, or any of the other
acts proscribed by Article III of the Convention,
and to transfer individuals accused of genocide or
any of those other acts for
trial by the International
Criminal Tribunal for the
former Yugoslavia, and to
co-operate fully with that
Tribunal;
(9) by thirteen votes to two,
Finds that, as regards the
breaches by Serbia of
the obligations referred
to in subparagraphs
(5) and (7) above, the
Courts ndings in those
paragraphs
constitute
appropriate satisfaction,
and that the case is not
one in which an order
for payment of compensation, or, in respect of
the violation referred to
in subparagraph (5), a
direction to provide assurances and guarantees
of non-repetition, would
be appropriate.
ICJ press release[5]

(7) by thirteen votes to two,

Finds that Serbia has violated its obligation to
comply with the provisional measures ordered
by the Court on April 8
and September 13, 1993
in this case, inasmuch as
it failed to take all measures within its power to
prevent genocide in Srebrenica in July 1995;
(8) by fourteen votes to one,

2.1 Dissenting opinion

The Vice-President of the International Court of Justice,
Judge Al-Khasawneh, dissented:
Serbias involvement, as a principal actor or accomplice, in the genocide that took
place in Srebrenica is supported by massive and
compelling evidence Disagreement with
the Courts methodology for appreciating the
facts and drawing inferences therefrom The
Court should have required the Respondent to

3
provide unedited copies of its Supreme Defence Council documents, failing which, the
Court should have allowed a more liberal recourse to inference The eective control
test for attribution established in the Nicaragua
case is not suitable to questions of State responsibility for international crimes committed
with a common purpose The overall control test for attribution established in the Tadi
case is more appropriate when the commission
of international crimes is the common objective of the controlling State and the non-State
actors The Courts refusal to infer genocidal intent from a consistent pattern of conduct
in Bosnia and Herzegovina is inconsistent with
the established jurisprudence of the ICTY
The FRYs knowledge of the genocide set to
unfold in Srebrenica is clearly established
The Court should have treated the Scorpions as
a de jure organ of the FRY The statement by
the Serbian Council of Ministers in response to
the massacre of Muslim men by the Scorpions
amounted to an admission of responsibility
The Court failed to appreciate the denitional
complexity of the crime of genocide and to assess the facts before it accordingly.[4]

Signicance

Serbias violations of its obligations stem not only from

the Convention on the Prevention and Punishment of the
Crime of Genocide but also from two provisional protective measures issued by the International Court of Justice in April and September 1993. The then Federal Republic of Yugoslavia was ordered explicitly to do everything in its power to prevent the crimes of genocide and
to make sure that such crimes are not committed by military or paramilitary formations operating under its control or with its support. The judges concluded that despite this explicit order, Serbia did nothing in July 1995
to prevent the Srebrenica massacre, although it should
normally have been aware of the serious danger that acts
of genocide would be committed.[6]
In reaching this decision, the court referred to the standard set by Nicaragua v. United States,[7] in which the
United States was found not to be legally responsible for
the actions of the Contra guerillas despite their common
goal and widely publicised support.
Furthermore, according to the ICJs judgement it is established by overwhelming evidence that massive killings
in specic areas and detention camps throughout the territory of Bosnia-Herzegovina were perpetrated during
the conict and that the victims were in large majority members of the protected group, the Bosniaks, which
suggests that they may have been systematically targeted
by the killings. Moreover, it has been established by

fully conclusive evidence that members of the protected

group were systematically victims of massive mistreatment, beatings, rape and torture causing serious bodily
and mental harm, during the conict and, in particular,
in the detention camps. The Court accepted that these
acts, on the part of the Serb forces, had been committed,
but that there was inconclusive evidence of the specic
intent to destroy the Bosniaks as a group in whole or in
part. This includes the period up to 19 May 1992, when
Bosnian Serb forces were under the formal control of the
Federal Republic of Yugoslavia.[8]
ICJ President Rosalyn Higgins noted that while there was
substantial evidence of events in Bosnia and Herzegovina
that may amount to war crimes or crimes against humanity, the Court had no jurisdiction to make ndings in that
regard, because the case dealt exclusively with genocide
in a limited legal sense and not in the broader sense sometimes given to this term.[6][9]
The Court further decided that, following Montenegros
declaration of independence in May 2006, Serbia, Serbia and Montenegros successor, was the only Respondent party in the case, but that any responsibility for past
events involved at the relevant time the composite State
of Serbia and Montenegro.[10]
In reviewing the case in the judgement of Jorgic v. Germany on 12 July 2007 the European Court of Human
Rights quoted from the ICJ ruling on the Bosnian Genocide Case to explain that ethnic cleansing was not enough
on its own to establish that a genocide had occurred:
The term 'ethnic cleansing' has frequently
been employed to refer to the events in Bosnia
and Herzegovina which are the subject of this
case ... General Assembly resolution 47/121
referred in its Preamble to 'the abhorrent
policy of ethnic cleansing, which is a form
of genocide', as being carried on in Bosnia and
Herzegovina. ... It [i.e., ethnic cleansing] can
only be a form of genocide within the meaning
of the Convention, if it corresponds to or falls
within one of the categories of acts prohibited
by Article II of the Convention. Neither the
intent, as a matter of policy, to render an area
'ethnically homogeneous, nor the operations
that may be carried out to implement such
policy, can as such be designated as genocide:
the intent that characterizes genocide is 'to
destroy, in whole or in part' a particular group,
and deportation or displacement of the members of a group, even if eected by force, is not
necessarily equivalent to destruction of that
group, nor is such destruction an automatic
consequence of the displacement. This is not
to say that acts described as 'ethnic cleansing'
may never constitute genocide, if they are
such as to be characterized as, for example,
'deliberately inicting on the group conditions

6
of life calculated to bring about its physical
destruction in whole or in part', contrary to
Article II, paragraph (c), of the Convention,
provided such action is carried out with the
necessary specic intent (dolus specialis), that
is to say with a view to the destruction of
the group, as distinct from its removal from
the region. As the ICTY has observed, while
'there are obvious similarities between a genocidal policy and the policy commonly known
as ethnic cleansing"' (Krsti, IT-98-33-T,
Trial Chamber Judgment, 2 August 2001,
para. 562), yet '[a] clear distinction must be
drawn between physical destruction and mere
dissolution of a group. The expulsion of a
group or part of a group does not in itself
suce for genocide.' ...
ECHR quoting the ICJ.[11]

REFERENCES

[4] ICJ. Application of the Convention on the Prevention and

Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Judgment: Dissenting Opinion of Vice-President Al-Khasawneh (PDF). International Court of Justice. p. 241.
[5] ICJ press room (26 February 2007). Application of
the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia
and Montenegro): Press release 2007/8]".
[6] Serbia found guilty of failure to prevent and punish genocide.. Sense Tribunal. 26 February 2007.
[7] International Court of Justice (26 February 2007).
Bosnia and Herzegovina v. Serbia and Montenegro Judgment (PDF). p. 115 276.
[8] Hoare, Marko Attila (9 March 2007). The International
Court of Justice and the decriminalisation of genocide.
Bosnian Institute. External link in |publisher= (help)
[9] Courte: Serbia failed to prevent genocide, UN court
rules. Associated Press. 26 February 2007.

3.1

Revision

[10] Higgins, Judge Rosalyn (26 February 2007). Press release by the ICJ: Application of the Convention on the
Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro):
Statement to the Press by H.E. Judge Rosalyn Higgins.

Under the statute of the International Court of Justice,

Bosnia and Herzegovina may le a request for revision
within ten years from the date of the decision and sixmonths from the discovery of a new fact.[12] Bosnia will
need to show that the fact was not known at the time of the [11] ECHR (12 July 2007). Jorgic v. Germany. Strasbourg. Judgement 45 citing Bosnia and Herzegovina v.
original judgment and that it would change the outcome
Serbia and Montenegro (Case concerning the application
[13]
of the proceedings.

of the Convention on the Prevention and Punishment of

the Crime of Genocide) the International Court of Justice (ICJ) found under the heading of intent and 'ethnic
cleansing'" 190.

See also
Bosnian Genocide
List of Bosnian genocide prosecutions
Srebrenica massacre

[12] Statute of the International Court of Justice. ICJ website.

[13] Shaw, Malcolm N. (2008). International Law 6th Ed. UK:
Cambridge University Press. pp. 11051106. ISBN 9780-521-72814-0.

Croatian Genocide Case

Serbian war crimes in the Yugoslav Wars
List of International Court of Justice cases

Notes

[1] ICJ (26 February 2007). The Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) [2007] Judgment, ICJ General List No. 91
(PDF). p. 108 297.
[2] Simons, Marlise (27 February 2007). Court Declares
Bosnia Killings Were Genocide. The New York Times.
[3] International Court of Justice (26 February 2007).
Bosnia and Herzegovina v. Serbia and Montenegro Judgment (PDF).

6 References
ICJ Press Release 2007/8
Summary of the Judgment of 26 February 2007
Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro) - case 91 Judgment of 26 February 2007
Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro): List
of judgements
Serbias darkest pages hidden from genocide court

2006
IWPR sta. Serbia and Montenegro on Trial for
Genocide, TU No 441, Institute for War & Peace
Reporting, 24 February 2006
Posner, Eric (poster), Article in the Boston Globe:
Bosnia v. Serbia on the blog site on the University
of Chicago law school 9 March 2006.
Traynor, Ian. Court starts hearing Bosnias genocide
claim, The Guardian, 27 February 2006
Sta. Bosnia-Herzegovina will win its law suit in
The Hague - interview with Srda Popovic, Bosnia
Report, Bosnian Institute, 31 May 2006 An interview with a Serbian legal expert who thought that
Bosnia would win the case.
2007
Hudson, Alexandra. Serbia cleared of genocide,
Reuters, 27 February 2007
Rizvi Haider, Survivors of War Crime Outraged at
Verdicts, OneWorld.net, 13 April 2007
Simons, Marlise. Genocide Court Ruled for Serbia
Without Seeing Full War Archive, The New York
Times, April 9, 2007
Tosh, Caroline Genocide Acquittal Provokes Legal
Debate, TU No 491, Institute for War & Peace Reporting 2 March 2007.
Hoare, Marko Attila. The International Court
of Justice and the Decriminalisation of Genocide,
Bosnia Report, 9 March 2007

7 TEXT AND IMAGE SOURCES, CONTRIBUTORS, AND LICENSES

Text and image sources, contributors, and licenses

7.1

Text

Bosnian Genocide case Source: https://en.wikipedia.org/wiki/Bosnian_Genocide_case?oldid=645337634 Contributors: Delirium, Geoffrey~enwiki, Kaihsu, Mxn, Nikola Smolenski, Timwi, Joy, PBS, Psychonaut, Henrygb, Phildav76, MaGioZal, CComMack, Xwu, Bosniak,
Avala, Yossarian, Duja, Rannphirt anaithnid (old), Aecis, El C, QuartierLatin1968, Art LaPella, La goutte de pluie, CyberSkull, Wikidea,
H27kim, Velimir85, Hadija, Snowolf, Live Forever, Dado~enwiki, Aristides, Woohookitty, Dzordzm, GregorB, Harac, Thewanderer,
Tibetibet, Rjwilmsi, Tim!, Xiao Li, Osli73, Digitalme, Briaboru, TheGrappler, DJ Bungi, Dtrebbien, RazorICE, Howcheng, WAS 4.250,
PaxEquilibrium, Erudy, Wai Hong, SmackBot, Laughing Man, Davewild, Ciriii, Aleksei, Hibernian, Mladilozof, Can't sleep, clown will eat
me, XQ fan, Bolivian Unicyclist, Lcarscad, Maelnuneb, Thorsen, EmirA~enwiki, MyOwnLittlWorld, Yarp, Cjh6386, Markemory, 1liberator, CmdrObot, Porterjoh, Aherunar, Cydebot, Meddling, Epbr123, Bobblehead, Luna Santin, Jayron32, 100110100, , Magioladitis, VoABot II, DinoBot, Djma12, Artaxiad, Sjbullock07, Skier Dude, Colchicum, Matresse, Domitius, The Dragon of Bosnia, IMNOTAVANDALK10, Iamdadawg1, StaticGull, Mild Bill Hiccup, GrinSB, Good Olfactory, Idanol, Addbot, Mike Babic, Banshankari, Lightbot, Andre Toulon, Yobot, AnomieBOT, Potonik, FrescoBot, Full-date unlinking bot, Yunshui, John of Reading, Nodllunk, Thom977,
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7.2

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