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Application of the Convention on the Prevention and

Punishment of the Crime of Genocide (Bosnia and


Herzegovina v. Serbia and Montenegro)

Brief Fact Summary. Bosnia and Herzegovina (P) brought suit against the Federal
Republic of Yugoslavia (Serbia and Montenegro) (D) in the International Court of Justice
in 1993, on the grounds of violations of the Convention on the Prevention and Punishment
of the Crime of Genocide.
Synopsis of Rule of Law. Under International law, the conduct of any state organ is to
be considered an act of the state, therefore giving rise to the responsibility of the state if
the conduct constitutes a breach of an international obligation of the state

Facts. The republics of Bosnia and Herzegovina (P), Croatia, Macedonia and Slovenia
declared independence when the Socialist Federal Republic of Yugoslavia began to
break up in the early 1990s. this led Serbia and Montenegro to declare themselves the
Federal Republic of Yugoslavia (FRY) (D). A massacre was perpetrated by Serbian forces
on 8000 Bosnia Muslim men of fighting age in a small village called Srebrenica in July
1995 during armed conflicts that arose in 1992-1995 within Bosnia and Herzegovina (P).
A suit was filed against the FRY (Serbia and Montenegro) (D) by Bosnia and Herzegovina
(P) in 1993 in the International Court of Justice, claiming violations of the Convention on
the Prevention and Punishment of the Crime of Genocide, on the theory that the FRY (D)
was responsible for the actions of Serbian forces.

Issue. Under International law, is the conduct if any state organ considered an act of the
state, which can give rise to the responsibility of the state if the conduct constitutes a
breach of an international obligation of the state?

Held. (Judge not identified in casebook excerpt).

Yes. Under International law, the conduct of any state organ is to be considered
an act of the state, therefore giving rise to the responsibility of the state if the conduct
constitutes a breach of an international obligation of the state. This is a rule of customary
international law that was codified in Article 4 of the ILC Articles of State responsibility.

No evidence showed that the Serbian forces were de jure organs of FRY (D) and this
case did not show that the army of the FRY (D) took part in the massacres or that the
political leaders of the state had any part of it. Though the FRY (D) was providing some
sought of financial and other support to the Serbian forces, this does not automatically
make them organs of the FRY (D).
Also, no evidence was provided to prove that the Serbs were under the effective control
of FRY (D) while conducting the massacre at Srebrenica. This can only imply that those
who were responsible for the massacre were not organs of the FRY (D) and the FRY (D)
cannot take responsibility under international law for the massacres.

Discussion. The brief for the first part of this case, interpreting the requirements of the
Genocide Convention, which is excerpted on page 166 of the casebook, should be looked
into. The I.C.J. had to refer to a standard set by Nicaraguan v. United States in deciding
whether to hold FRY (D) liable for the alleged genocide at Srebrenica by certain Bosnian
Serbs, in which the United States was found not to be legally responsible for the actions
of the Contra guerrillas, despite their common goal and pubic support.
Bosnia and Herzegovina v. Serbia and
Montenegro
Bosnia and Herzegovina v. Serbia and Montenegro is a landmark case
handled by the International Court of Justice.
During the Bosnian War, former Yugoslavian troops stationed in Bosnia and
Herzegovina committed various acts of genocide and atrocities against the Muslims and
Croats that lived there (see Srebrenica massacre). They also laid siege the city
of Sarajevo, the longest siege of a city in modern history.
The government of Bosnia and Herzegovina brought suit against the government
of Serbia and Montenegro under the Convention on the Prevention and Punishment of
the Crime of Genocide (CPPCG).
The International Court of Justice decided ultimately on Feb. 26, 2007, that while
Serbia and Montenegro were not responsible for the genocide committed, they were in
violation of the CPPCG in that they did nothing to prevent the genocide from occurring
and afterward did not punish the perpetrators.
This is the first time that a state has been found in violation of the CPPCG.
To deliver its decision, the court used the famous case of Nicaragua v. United
States in where the International Court of Justice found that although the United
States backed the Contra guerrillas, it could not be held responsible for their actions.
WORLD COURT DIGEST

SUMMARIES OF THE DECISIONS

APPLICATION OF THE CONVENTION ON THE PREVENTION AND

PUNISHMENT OF THE CRIME OF GENOCIDE

(BOSNIA AND HERZEGOVINA V. YUGOSLAVIA (SERBIA AND MONTENEGRO))

ON 20 MARCH 1993, BOSNIA-HERZEGOVINA HAD INSTITUTED


PROCEEDINGS AGAINST YUGOSLAVIA (SERBIA/MONTENEGRO) IN RESPECT OF
A DISPUTE CONCERNING ALLEGED VIOLATIONS OF THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE INVOKING
ARTICLE IX OF THE GENOCIDE CONVENTION AS THE BASIS OF THE
JURISDICTION OF THE COURT.

AT THE SAME TIME, BOSNIA-HERZEGOVINA HAD ALSO SUBMITTED A


REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES UNDER ARTICLE
41 OF THE STATUTE. BY AN ORDER DATED 8 APRIL 1993, THE COURT, AFTER
HEARING THE PARTIES, INDICATED CERTAIN PROVISIONAL MEASURES WITH A
VIEW TO THE PROTECTION OF RIGHTS UNDER THE GENOCIDE CONVENTION. IN
A SECOND ORDER OF 13 SEPTEMBER 1993, THE COURT REAFFIRMED THE
MEASURES INDICATED IN ITS ORDER OF 8 APRIL 1993 BUT DECLINED TO ORDER
FURTHER- REACHING INJUNCTIONS REQUESTED BY YUGOSLAVIA1.

YUGOSLAVIA THEN RAISED PRELIMINARY OBJECTIONS CONCERNING,


RESPECTIVELY, THE ADMISSIBILITY OF THE APPLICATION AND THE
JURISDICTION OF THE COURT TO ENTERTAIN THE CASE.

JUDGMENT ON PRELIMINARY OBJECTIONS OF JULY 11, 1996

WITH REGARD TO THE QUESTION WHETHER THE GENOCIDE


CONVENTION WAS APPLICABLE AS BETWEEN THE PARTIES, THE COURT
CONSIDERED WITHOUT DECIDING THE QUESTION WHETHER THE FEDERAL
REPUBLIC OF YUGOSLAVIA WAS IDENTICAL WITH THE FORMER SOCIALIST
FEDERAL REPUBLIC OF YUGOSLAVIA THAT THE FEDERAL REPUBLIC OF
YUGOSLAVIA, HAD ADOPTED A FORMAL DECLARATION WHICH EXPRESSED THE
INTENTION OF YUGOSLAVIA TO REMAIN BOUND BY THE INTERNATIONAL
TREATIES TO WHICH THE FORMER YUGOSLAVIA WAS PARTY AND THAT IT HAD
NOT BEEN CONTESTED THAT YUGOSLAVIA WAS PARTY TO THE GENOCIDE
CONVENTION.

THE COURT FOUND THAT BOSNIA-HERZEGOVINA COULD BECOME A


PARTY TO THE CONVENTION THROUGH THE MECHANISM OF STATE
SUCCESSION. AGAIN WITHOUT DECIDING WHETHER BOSNIA-HERZEGOVINA
AUTOMATICALLY BECAME PARTY TO THE GENOCIDE CONVENTION ON THE
DATE OF ITS ACCESSION TO INDEPENDENCE ON 6 MARCH 1992, OR WHETHER
IT SOLELY BECAME A PARTY AS A RESULT OF ITS NOTICE OF SUCCESSION, THE
COURT DETERMINED THAT AT ALL EVENTS BOSNIA-HERZEGOVINA WAS A
PARTY TO THE CONVENTION ON THE DATE OF THE FILING OF ITS APPLICATION.

THE COURT THEN TURNED TO THE POINT WHETHER THERE WAS A


DISPUTE BETWEEN THE PARTIES THAT FALLS WITHIN THE SCOPE OF ARTICLE
IX OF THE GENOCIDE CONVENTION. NOTING THAT THERE PERSISTED BETWEEN
THE PARTIES BEFORE IT, "A SITUATION IN WHICH THE TWO SIDES HOLD
CLEARLY OPPOSITE VIEWS CONCERNING THE QUESTION OF THE
PERFORMANCE OR NON-PERFORMANCE OF CERTAIN TREATY OBLIGATIONS",
A LEGAL DISPUTE DID INDEED EXIST AS BETWEEN THE TWO PARTIES BEFORE
IT.

THE COURT ALSO CONSIDERED THAT, IRRESPECTIVE OF THE NATURE OF


THE CONFLICT FORMING THE BACKGROUND TO THE DISPUTE, THE
OBLIGATIONS OF PREVENTION AND PUNISHMENT WHICH ARE INCUMBENT
UPON THE STATES PARTIES TO THE GENOCIDE CONVENTION REMAIN
IDENTICAL. IT FURTHER NOTED THAT IT COULD NOT, AT THIS STAGE IN THE
PROCEEDINGS, SETTLE THE QUESTION WHETHER YUGOSLAVIA TOOK PART IN
THE CONFLICT AT ISSUE, A QUESTION WHICH CLEARLY BELONGS TO THE
MERITS.

THE COURT ALSO OBSERVED THAT ARTICLE IX DOES NOT EXCLUDE ANY
FORM OF STATE RESPONSIBILITY, NOR IS THE RESPONSIBILITY OF A STATE
FOR ACTS OF ITS ORGANS EXCLUDED BY ARTICLE IV OF THE CONVENTION,
WHICH CONTEMPLATES THE COMMISSION OF AN ACT OF GENOCIDE BY
"RULERS" OR "PUBLIC OFFICIALS".

AS TO THE ISSUE OF JURISDICTION RATIONE TEMPORIS THE COURT


OBSERVED THAT THE GENOCIDE CONVENTION DOES NOT CONTAIN ANY
CLAUSE THE OBJECT OR EFFECT OF WHICH IS TO LIMIT IN SUCH MANNER THE
SCOPE OF ITS JURISDICTION RATIONE TEMPORIS. ACCORDINGLY THE COURT
FOUND THAT IT HAD JURISDICTION IN THIS CASE TO GIVE EFFECT TO THE
GENOCIDE CONVENTION WITH REGARD TO THE RELEVANT FACTS WHICH HAVE
OCCURRED SINCE THE BEGINNING OF THE CONFLICT WHICH TOOK PLACE IN
BOSNIA-HERZEGOVINA.
JUDGES ODA, SHI AND VERESHCHETIN AND JUDGE AD HOC
LAUTERPACHT ADDED DECLARATIONS TO THE JUDGEMENT. JUDGES
SHAHABUDDEEN, WEERAMANTRY AND PARRA-ARANGUREN, IN THEIR
SEPARATE OPINIONS, MAINLY DISCUSSED THE QUESTION AS TO WHETHER THE
GENOCIDE CONVENTION IS SUBJECT TO THE PRINCIPLE OF AUTOMATIC
SUCCESSION. FINALLY, JUDGE AD HOC KRECA FOUND THAT THE RELEVANT
CONDITIONS FOR THE ENTERTAINMENT OF THE CASE BY THE COURT,
RELATING TO BOTH JURISDICTION AND ADMISSIBILITY, HAD NOT BEEN MET.

COUNTER-CLAIMS SUBMITTED BY YUGOSLAVIA

ORDER OF 17 DECEMBER 1997

IN AN ORDER OF 17 DECEMBER 1997, THE COURT FOUND THAT


YUGOSLAVIAN COUNTER-CLAIMS WERE ADMISSIBLE. IN ITS COUNTER-CLAIMS
YUGOSLAVIA HAD REQUESTED THE ICJ TO ADJUDGE THAT BOSNIA AND
HERZEGOVINA WAS RESPONSIBLE FOR ACTS OF GENOCIDE COMMITTED
AGAINST SERBS IN BOSNIA AND HERZEGOVINA. NOTING THAT A COUNTER-
CLAIM IS INDEPENDENT OF THE PRINCIPAL CLAIM IN SO FAR AS IT
CONSTITUTES A SEPARATE 'CLAIM' AND THAT ITS THRUST IS "TO WIDEN THE
ORIGINAL SUBJECT-MATTER OF THE DISPUTE BY PURSUING OBJECTIVES
OTHER THAN THE MERE DISMISSAL OF THE CLAIM OF THE APPLICANT", THE
COURT FOUND THAT THE YUGOSLAVIAN COUNTER-CLAIMS WERE ADMISSIBLE
AS SUCH AND FORMED PART OF THE CURRENT PROCEEDINGS SINCE THEY
WERE DIRECTLY CONNECTED WITH THE SUBJECT-MATTER OF BOSNIA AND
HERZEGOVINA'S CLAIMS.

WHILE JUDGE AD HOC KRECA APPENDED A DECLARATION TO THE


ORDER, JUDGE KOROMA AND JUDGE AD HOC LAUTERPACHT APPENDED
SEPARATE OPINIONS. VICE-PRESIDENT WEERAMANTRY APPENDED A
DISSENTING OPINION.

BY AN ORDER OF 10 SEPTEMBER 2001 THE COURT PLACED ON RECORD


THE WITHDRAWAL BY YUGOSLAVIA OF THE COUNTER-CLAIMS AFTER HAVING
BEEN INFORMED THAT BOSNIA AND HERZEGOVINA HAD INDICATED THAT IT
HAD NO OBJECTION TO THAT WITHDRAWAL.

APPLICATION FOR REVISION OF THE JUDGMENT OF 11 JULY 1996 IN THE


CASE CONCERNING THE APPLICATION OF THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(BOSNIA AND HERZEGOVINA V. YUGOSLAVIA) - PRELIMINARY OBJECTIONS

ON 24 APRIL 2001, THE FEDERAL REPUBLIC OF YUGOSLAVIA FILED AN


APPLICATION FOR REVISION OF THE ABOVE-MENTIONED JUDGMENT OF 11
JULY 1996, BY WHICH THE COURT HAD DECLARED THAT IT HAD JURISDICTION
TO ADJUDICATE THE CASE. YUGOSLAVIA CONTENDS THAT A REVISION OF THE
JUDGMENT IN ACCORDANCE WITH ART. 61 OF THE STATUTE IS NECESSARY
NOW THAT IT HAS BECOME CLEAR THAT, YUGOSLAVIA DID NOT CONTINUE THE
INTERNATIONAL LEGAL AND POLITICAL PERSONALITY OF THE SOCIALIST
FEDERAL REPUBLIC OF YUGOSLAVIA, WAS NOT A MEMBER OF THE UNITED
NATIONS, WAS NOT A STATE PARTY TO THE STATUTE OF THE COURT, AND WAS
NOT A STATE PARTY TO THE GENOCIDE CONVENTION.