Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro)
The Srebrenica massacre was genocide, but it was not attributable to Serbia, although Serbia was responsible for failing to prevent the genocide and to punish those responsible.
Facts
Bosnia and Herzegovina brought proceedings against Serbia and Montenegro, claiming that it was responsible for genocide committed during the war in Bosnia between 1992 and 1995, including the massacre of about 8,000 Bosnian Muslim men and boys at Srebrenica in July 1995 by the Bosnian Serb army. The case raised questions about the obligations of states under the Genocide Convention and the attribution of the acts of the Bosnian Serb forces to Serbia.
Legal principle
The International Court of Justice held that the killings at Srebrenica were genocide, because they were committed with the specific intent to destroy in part the group of Bosnian Muslims. However, the acts were not attributable to Serbia, because the Bosnian Serb forces were not de jure or de facto organs of Serbia, and Serbia did not exercise effective control over the operations at Srebrenica, applying the test in Nicaragua rather than the overall control test of the ICTY in Tadić. The court held that the Genocide Convention imposes obligations on states not to commit genocide themselves, and to prevent and punish genocide. Serbia had violated its obligation to prevent genocide at Srebrenica, because it had influence over the Bosnian Serbs and was aware of the serious risk, and had failed to cooperate with the ICTY.
Related cases on state responsibility, nationality and international organisations
- Barcelona Traction, Light and Power Co Ltd (Belgium v Spain) (1970) ICJ Reports 3
- Corfu Channel Case (United Kingdom v Albania) (1949) ICJ Reports 4
- Factory at Chorzów (Germany v Poland) (1928) PCIJ Series A No 17
- Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (1997) ICJ Reports 7
- Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (1986) ICJ Reports 14
- Nottebohm Case (Liechtenstein v Guatemala) (1955) ICJ Reports 4
- Reparation for Injuries Suffered in the Service of the United Nations (1949) ICJ Reports 174
- United States Diplomatic and Consular Staff in Tehran (United States v Iran) (1980) ICJ Reports 3
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