Digest Author: [Mai Salanguit] Public International Law D2015 (International Student)

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bsnia and
Herzegovina v. Serbia and Montenegro) [2007]

FACTS:
 Boasnia and Herzegovina filed an application with the Court, alleging that Yugoslavia (later, Serbia and
Montenegro) acted contrary to several conventions and treaties in its paramilitary and military act of ethnic
cleansing of the citizens in B & H.
o B & H claims that they are filing this in self – defense since Y is illegally intruding on its internal affairs by
killing/harming/preventing births of their Muslim population
 Y argues that:
o B & H were responsible for the acts of genocide committed against Serbs by inciting these acts through
their declaration that there can be no co – existence between the Islamic and non – Islamic faith, by an
article which says that ‘Muslims must name a Serb and take an oath to kill him’ etc
o B & H had the obligation to punish and take necessary measures to prevent these acts.
o The court had no jurisdiction over them.

ISSUES + RULING:

WON the Court has jurisdiction over respondents? YES. (didn’t focus too much here since Int’l Res yung topic)
 Brief History
o The Socialist Republic of the Federation of Yugoslavia was a founding member state of the UN.
o It was made up of Bosnia, Herzegovnia, Croatia, Macedonia, Servia and Slovenia.
o It began to disintegrate.
o Croatia, the Republic Srpska Krajina and and the Republic of the Serb People of Bosnia & Herzegovina
(later to be called the Republika Srpska) declared independence.
o Republika Srpska never attained international recognition as a sovereign State, but it had de facto control
of substantial territory, and the loyalty of large numbers of Bosnian Serbs.
o It became the Republic of Yugoslavia (FRY, later Serbia & Montenegro) and the Republic of B & H.
 After the close of the oral proceedings, Serbia became independent.
 S said that they would continue the case based on their charted and said that they would be responsible for all
international obligations concluded by S & M.
 M argues that there was no jurisdiction over them. It says that it wasn’t a member at the time of the application.
B & H argues: Both should be respondents because they used to be one entity in performing the acts and that the case in
1996, the Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), constitutes res judicata over them with respect to
jurisdiction.
 Court says:
o GR: Jurisdiction depends on the consent of States and courts can’t compel the state to appear.
o However, there is RJ

WON respondents committed genocide? No but they failed to comply with their obligations under the Convention.
 Genocide includes
o Killing members of the group;
o Causing serious bodily or mental harm to members of the group;
o Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in
whole or in part;
o Imposing measures intended to prevent births within the group; and
o Forcibly transferring children of the group to another group
 All these require mental elements
 However, genocide requires a further mental element: the establishment of the “intent to destroy,
in whole or in part, ... the protected group, as such.” It is often referred to as a special intent or
dolus specialis. It is not enough that the members of the group are targeted because they
belong to that group. The acts listed must be done with intent to destroy the group as such in
whole or in part.
 Case: The group is Bosnian Muslims.

First Set
 Acts of Civilian Muslim killings by Bosnian Serb forces (didn’t list all, too many …. so sad )
1. Sarajevo = rocketing and shelling acts which resulted in 10, 000 people
2. Drina River Valley, Zvornik = 2,500, alleged that they specifically targeted Muslims and mistreated Muslim
children
Digest Author: [Mai Salanguit] Public International Law D2015 (International Student)

3. Drina River Valley, camps

4. Prijedor, Kozarac & Humbarine = shelling and attack in random even in homes
5. Prijedor, camps = 1, 000 – 3, 000 killings
6. Banja Luka, Mnjaca camp = mass grave of 540 bodies
 Court says
o evidence shows that the victims were in large majority members of the protected group which suggest
that they may have been systematically targeted
o Y did not contest that members of the protected group were indeed killed in B & H
 requirement in Art II (a) of the Convention is met
 BUT no evidence that there was specific intent
 B & H argues: the very pattern of the atrocities committed over many communities, over a lengthy period
focused on Bosnian Muslims demonstrates the necessary intent
 Court disagrees
o the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference
to particular circumstances, unless a general plan to that end can be convincingly demonstrated to
exist
o for a pattern of conduct to be accepted as evidence

Second Set
 Massacre at Srebrenica: Bosnian Serb forces killed over 7, 000 Bosnian Muslim men following the takeover of a
safe area
 Court says = Genocide
o Satisfies Art II a: killing members of the protected group
o Satisfies Art II b: causing serious bodily or mental harm
o Specific Intent established
o BUT Y not responsible
 B & H: They admitted that genocide was committed and has accepted legal responsibility for it made by their
Council of Ministers
 Court says = it was of a political nature and not intended as an admission
o Used the Test of Responsibility

Discussion
I. WON the acts of genocide committed were perpetrated by persons or entities having the status of organs 1 of
FRY under its internal, as then in force? No
o No showing that: FRY army took part in massacres and of political leaders had a hand in planning it
o The participation of FRY w/ Bosnian Serb armed forces were not related to the massacres
o The Republic of Srpska nor VRS were not shown to be de jure organs of FRY, even if FRY was giving
financial support to Srpska. W/O other evidence, it would be presumed that the officers under VRS
received their orders from Srpska.
o The acts of the ‘Scorpions’ (a unit of Ministry Interiors of Serbia) but the courts stated that the
communications sent were addressed to Srpska.
o the Court notes that in any event the act of an organ placed by a State at the disposal of another public
authority shall not be considered an act of that State if the organ was acting on behalf of the public
authority at whose disposal it had been placed
o Article 4: Conduct of Organs of a State
1. The conduct of any State organ shall be considered an act of that State under international law, whether the
organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization
of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal law of the State.
 B & H argues: Srpska, the VRS and other known paramilitary militias aka Scorpions, Red Berets, Tigers, White
Eagles must be deemed to have been de facto organs of FRY
 Courts says: No, no evidence of total dependence of Srpska upon FRY
o B & H has not proved that instructions were issued by the federal authorities in Belgrade or by any other
organ of the FRY, to commit the massacres
o On the contrary, the decision to kill the adult male population of the Muslim community in Srebrenica was
taken by members of the VRS Main staff, but w/o instructions from or effective control by the FRY
Digest Author: [Mai Salanguit] Public International Law D2015 (International Student)

II. WON the massacres at Srebrenica were committed by persons who, though not having the status of organs ,
nevertheless acted on its instructions or under its direction or control
 Court says: No
 The Court cited Art. 8: Conduct directed or controlled by the State : The conduct of a person or group of persons
shall be considered an act of a State under international law if the person or group of persons is in fact acting on
the instructions of, or under the direction or control of, that State in carrying out the conduct.”
 The Court, citing Nicaragua v. US, persons, groups or persons or entities may, for purposes of international
responsibility, be equated with State organs even if that status does not follow from internal law, provided that in
fact the persons, groups or entities act in complete dependence on the State, of which they are ultimately merely
the instrument
 The Court held that the applicable rule is that the conduct of a person or group of persons shall be considered an
act of a State under international law if the person or group of persons is in fact acting on the instructions of, or
under the direction or control of, that State carrying out the conduct. Under this test, it must be shown that this
“effective control” was exercised, or that the State’s instructions were given, in respect of each operation in which
the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of
persons having committed the violations
III. WON FRY is responsible for acts related to genocide in Art. III of the Convention: conspiracy to commit
genocide, direct and public incitement to commit genocide, attempt to commit genocide, complicity in
genocide
 Court says: Only par e (complicity in genocide) is relevant. But No.
 Note: the conduct of an organ or a person furnishing aid or assistance to a perpetrator of the crime of genocide
cannot be treated as complicity in genocide unless that organ acted knowingly with the specific intent (dolus
specialis) of the principal perpetrator
 It has not been established that FRY authorities supplied and continued to supply the perpetrators of the acts of
genocide, at a time when those authorities were clearly aware that genocide was about to take place or was
under way.
IV. WON Respondent complied with its obligations to prevent and punish genocide under Art. I
 Court says: No
A. Obligation to Prevent
 It does not need to be proven that the State concerned definitely had the power to prevent genocide; it is sufficient
that it had the means to do so and that it manifestly refrained from using them
 The obligation of the States is to employ all means reasonably available to them so as to prevent genocide so far
as possible.
 The State will incur responsibility if it manifestly failed to take all measures to prevent genocide which were within
its power, and which might have contributed to preventing the genocide.
 A State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually
committed.
Court says: Yes
 At the time, the FRY was in a position of influence over the Bosnian Serbs who implemented the genocide in
Srebrenica
 It was also bound by specific obligations in the provisional remedies indicated by the Court in 1993 ie “that any
military, paramilitary or irregular armed units which may be subject to its control, direction or influence, do not
commit any acts of genocide...”
 The FRY leadership and Pres. Milosevic wee fully aware of the deep – seated hatred which reigned between the
Bosnian Serbs and the Muslims in Srebrenica region. The Pres., by his own observations, made it clear that the
dangers were known and that these dangers seemed to be of an order that could suggest intent to commit
genocide unless brought under control
 Yet FRY did nothing to prevent it despite their influence over the VRS

B. Obligation to Punish
 Art. VI: “Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a
competent tribunal of the State in the territory of which the act was committed, or by such international penal
tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its
jurisdiction.”
 Art. VI. obliges the contracting parties to institute and exercise territorial criminal jurisdiction while it certainly does
not prohibit States, with respect to genocide, from conferring jurisdiction on their criminal courts based on criteria
other than where the crime was committed which are compatible with international law, in particular the nationality
of the accused, it does not oblige them to do so.
Digest Author: [Mai Salanguit] Public International Law D2015 (International Student)

 An international penal tribunal must at least cover all international criminal courts created after the adoption of the
convention of potentially universal scope, and competent to try the perpetrators of genocide or any other acts in
Art. III which the Respondent must be regarded has having “accepted the jurisdiction” of the tribunal within the
meaning of the provision from 14 December 1995 at the latest, the date of the signing and entry into force of the
Dayton Agreement between Bosnia and Herzegovina, Croatia and the FRY. Annex 1A of that treaty, made
binding on the parties by virtue of its Article II, provides namely that they must fully co-operate, notably with the
ICTY.
 Court says: Yes
 The genocide in Srebrenica was not carried out in respondent’s territory
 Even if Serbian domestic law granted jurisdiction to its criminal courts to try those accused and that such
proceedings were compatible with Serbia’s other international obligations (eg its obligation to cooperate with the
ICTY), an obligation to try the perpetrators in domestic courts cannot be deduced from Art. VI.
 The Respondent asserted that the duty to co-operate had been complied with following the régime change in
Belgrade in the year 2000, thus implicitly admitting that such had not been the case during the preceding period.
The conduct of the organs of the FRY before the régime change however engages the Respondent’s international
responsibility just as much as it does that of its State authorities from that date.
 Further, the Court cannot but attach a certain weight to the plentiful, and mutually corroborative, information
suggesting that General Mladić, indicted by the ICTY for genocide, as one of those principally responsible for the
Srebrenica massacres, was on the territory of the Respondent at least on several occasions and for substantial
periods during the last few years and is still there now, without the Serb authorities doing what they could and can
reasonably do to ascertain exactly where he is living and arrest him.
V. Breach of Provisional Measures: Yes
 “orders on provisional measures have binding effect”
 Respondent failed to fulfil its obligation to “take all measures within its power to prevent commission of the crime
of genocide”. Nor did it comply with the obligation to “ensure that any . . . organizations and persons which may
be subject to its . . . influence . . . do not commit any acts of genocide
VI. Reparation: No except in the form of satisfaction (?)
 It is well established in international law that an injured State is entitled to obtain compensation from the State
which has committed an internationally wrongful act for the damages caused bu it
 In this case, not able to prove that genocide at Srebrenica would not have taken place had Serbia attempted to
prevent it by employing all means in its possession, financial compensation would not be the appropriate form of
reparation for the breach of obligation to prevent genocide.
 However, it is clear that the Applicant is entitled to reparation in the form of satisfaction and the Court held that the
most appropriate form of this is a declaration in the present Judgment that the Respondent has failed to comply
with the obligation imposed by the Convention to prevent the crime of genocide.