PUBLIC INTERNATIONAL LAW-II

FINAL ASSIGNMENT
LLB 8
GROUP MEMBERS:

ZUMER AYAZ……………………………..01-177191-051
PIRZADI HANNANA NAZ………………..01-177191-047
M. USMAN HAIDER………………………01-177191-036
ABDUL HALEEM KHAN…………………01-177191-052
 TABLE OF CONTENTS

Bosnia and Herzegovina v Serbia and Montenegro [2007] ICJ 2..........................................................3

FACTS:..................................................................................................................................................3
BOSNIA AND HERZEGOVINA’S CLAIMS IN ICJ:.......................................................................3
YUGOSLAVIA’S OBJECTIONS TO THE APPLICATION:...........................................................3
RULINGS OF THE INTERNATIONAL COURT OF JUSTICE:....................................................3
EFFECTIVE CONTROL:........................................................................................................................4
EVALUATION OF EFFECTIVE AND OVERALL CONTROL:........................................................4
ANALYSIS:...............................................................................................................................................5
CONCLUSION:.........................................................................................................................................6

GROUP MEMBERS:

ZUMER AYAZ……………………………..01-177191-051
EVALUATION OF EFFECTIVE AND OVERALL CONTROL

PIRZADI HANNANA NAZ………………..01-177191-047

Bosnia and Herzegovina v Serbia and Montenegro
M. USMAN HAIDER………………………01-177191-036
EFFECTIVE CONTROL AND CONCLUSION

ABDUL HALEEM KHAN…………………01-177191-052

ANALYSIS
 Bosnia and Herzegovina v Serbia and Montenegro [2007] ICJ 2
This is the case on the Application of the Convention on the Prevention and Punishment of the
Crime of Genocide which is a landmark case in international law decided by The International
Court of Justice (ICJ).
FACTS:
The claim was taken to the ICJ by Alija Izetbegović that Serbia had attempted to eradicate
Bosnian Muslims of Bosnia and Herzegovina during the Bosnian war. Yugoslavia was divided
into constituent republics. The Europe recognized republic of Bosnia and Herzegovina on 6 th
April, 1992 as an independent state. The elections held divided the government into parties
representing the Serbs, Kuwait’s and Muslims. The Bosnian Serbs wanted to be a part of
dominant Serbian state which they had envisioned for a long time. Violent acts that occurred in
Bosnia and Herzegovina by Serbia and Montenegro started in April 1992 targeting Bosnian
Muslims. 150000 Bosnian Muslims were killed and 2,6 million people were displaced from there
home. On 20th march 1993, Bosnia and Herzegovina government initiated a proceeding against
the Republic of Yugoslavia in ICJ.

BOSNIA AND HERZEGOVINA’S CLAIMS IN ICJ:

To condemn Yugoslavia, Bosnia Herzegovina submitted following claims:
1. Yugoslavia is violating the Convention on the Prevention and Punishment of the Crime
of Genocide article 1,2 & 3 by committing genocide against the Bosnian Muslims as they
are destroying religious and ethnical groups.
2. Yugoslavian government must immediately cease their actions of killing Muslims and
take effective steps to ensure complete compliance with the convention.
3. It must restore the situation existing before this violation of convention.
4. Yugoslavia must pay full damages to compensate the losses caused to Bosnia and
Herzegovina.

YUGOSLAVIA’S OBJECTIONS TO THE APPLICATION:

In the ICJ, Yugoslavia raised following objections against these claims and that the application
by Bosnia and Herzegovina is not admissible because:
1. The violence in the region is not under international law as it is a civil war.
2. Alija Izetbegović was not the president of Bosnia and Herzegovina when the application
was made and also, they are not an independent state.
3. Bosnia and Herzegovina have not ratified the convention and is not a state party so the
court has no jurisdiction over the case.
RULINGS OF THE INTERNATIONAL COURT OF JUSTICE:
ICJ ruled opposite to the objections on following grounds:
1. UN recognized Bosnia and Herzegovina as an independent state on 6 th march 1992 so the
first claim is inadmissible.
 2. At the time of filing the application, Mr. Alija Izetbegović was officially recognized as
the head of state.
3. The reference to article 9 to the responsibility of a state for genocide or any other acts
enumerated in article 3 does not exclude any form of state responsibility including any
form of state organ or leader.
ICJ held that the court has full jurisdiction to consider the merits of the case. The court rules
pertaining the requests made by Bosnia and Herzegovina that Yugoslavia has and is still
violating the convention on the Prevention and Punishment of the Crime of Genocide. They
must immediately cease the above conduct and make reparations to the crimes it committed
against the convention. By 13 votes to 2, the court finds the application from Bosnia
admissible and the ICJ has jurisdiction over the matter.

EFFECTIVE CONTROL:
The "effective control" test might or might not hold up. However, it is important to determine
whether it is founded on customary law (which is the consequence of state practice, case law,
and opinio Juris) or, in the absence of any specific customary law norm, on broad principles
of state responsibility or even general principles of international law. But it is true that the
Nicaraguan Court established that standard without outlining or defining the justifications for
it. The Court does not make any mention of state law or any other authorities.
The effective control test violates a fundamental principle underlying the entire set of rules
and guidelines on state accountability to the extent that it also applies to organized armed
organizations. States may not avoid responsibility towards other states by using groups of
individuals to carry out actions that are meant to harm, or actually do harm to, other states
instead of acting through their own officials; if states act in this manner, they are responsible
for the actions of those individuals, even if those individuals have exceeded their mandate or
agreed-upon tasks, lest the worst abuses go unchecked. This is the justification for the rule
stating that the state is nevertheless responsible for actions taken by individuals who are
lawfully functioning on behalf of the state but go beyond their power or go against directives.

EVALUATION OF EFFECTIVE AND OVERALL CONTROL:

The fact that of the two standard specifications of evaluation, the "overall control" and the
"effective control" criterion, the former proves more beneficial in appraising three prevalent
trends in the practice of the current global community, may support the effectiveness of
versatility in using assessment criteria for assessing state responsibility.
The first is the considerable support that states give to military, paramilitary, or armed groups
engaged in conflict with other nations or domestic insurgent or separatist organizations. In
the global community, this is a common and dangerous event. If international law does not
have the means to hold the supporting state accountable for international crimes by the armed
groups, at least where the aid goes so far as to involve coordinating or aiding in the planning
process of the military activities of those groups, it could result in full-blown international
armed conflicts or, at the very least, serious threats to peace and security. I contend that the
"total control" criteria is an appropriate legal barometer for holding those states responsible.
 Terrorist groups are increasingly being assisted by states in international relations, which is a
regrettable trend for the global community. The "overall control" approach may prove to be
particularly effective in determining whether violent acts committed by terrorist
organizations may be attributed to states supporting terrorism, with the result that such states
may be held liable for them. It is obvious that applying the "effective control" criterion in its
place to such actions would be extremely demanding and create significant evidence-related
issues.
How might it be demonstrated that a specific terrorist organization carried out its actions at
the behest of, or under the direct control of, a state in a way that suggested the state had
explicitly ordered the commission of certain terrorist acts? It would be extremely difficult to
demonstrate the issuance of orders or directives pertaining to each terrorist operation due to
the covert character of those groups, their division into small and close-knit units, and the
secret interactions of authorities of some specific states with terrorist groups.
If one instead uses the "overall control" test, it is sufficient to show that specific terrorist
units or organizations are not only armed, funded, equipped, and trained by a specific state or
profit from its strong backing, but also that such state generally organizes, coordinates, or at
least has a hand in planning or coordinating its terrorist actions, not inevitably each personal
terrorist operation. It would thus be rather simple to deduce from these connections that the
state in question is accountable for those terrorist acts. In other words, it would be simpler to
ascribe those activities to the state in question on the basis of the "overall control" test.
According to this test, it would be possible to hold certain Middle Eastern states accountable
for the severe human rights abuses committed by terrorist organizations over which they
have had significant influence because, in addition to offering support, financing, training,
and weapons, these states also aid in the coordination and planning of their terrorist activities.
Let me add that there are other reasons to depend on this test besides just evidentiary ones. It
is a truth that terrorist groups are increasingly turning to novel tactics. States must inevitably
rely on legal standards that are well suited to the need to limit violence if they want
international law to take into account the new operating style of non-state actors and use
international laws on state responsibility to target those states that support terrorist groups
covertly. States have realized that new strategies are urgently needed in the battle against
terrorism that they are waging within their own legal systems, so they are focusing on the
mere financing of terrorism. Some countries have also made membership in terrorist
organizations a criminal offense in and of itself. If one wants to target not only terrorist
organizations and their representatives but also those states that increasingly use their
barbaric methods, adaptable ways of connecting states to terrorist organizations are more
appropriate than traditional methods at the international level, in line with these novel
strategies taken within municipal legal systems.

ANALYSIS:
The International Court of Justice (ICJ) introduced the Nicaragua test, also known as the
Nicaragua standard or the Cassese test, in the 1986 case of Military and Paramilitary
Activities in and against Nicaragua. The ICJ President Antonio Cassese developed the test,
 which is used to establish whether a state has engaged in an act of aggression against another
state. Under the Nicaragua test, an act of aggression includes:
 The utilization of force by one state against another state's political independence,
sovereignty, or territorial integrity.
 The sending by or on behalf of a state of armed bands, groups, irregulars, or
mercenaries to another state to carry out armed attacks, foment civil war, or
undermine the constitutional order of that state.
 The use of armed force by a state in violation of a cease-fire or other peace
settlement.
The Nicaragua test has been widely adopted and applied in international law, but it has also
been criticized for being too vague and subjective. Some have argued that the test could be
improved by providing more specific criteria for determining what constitutes an act of
aggression.
In its recent Genocide judgment, the International Court of Justice discussed the question of
whether the acts of genocide carried out at Srebrenica by Bosnian Serb armed forces must be
attributed to the Federal Republic of Yugoslavia (FRY), as claimed by Bosnia. It applied the
‘effective control’ test set out in Nicaragua, reaching a negative conclusion. The Court also
held that the broader ‘overall control’ test enunciated by the International Criminal Court for
the former Yugoslavia (ICTY) in Tadic did not apply, on two grounds. First, the test had
been suggested by the ICTY with respect to the question of determining whether an armed
conflict was international and not with regard to the different issues of state responsibility;
secondly, in any case, the test would have overly broadened the scope of state responsibility.
It was argued that the ICTY admittedly had to establish in Tadic whether the armed conflict
in Bosnia was internal or international. However, as no rules of international humanitarian
law were of assistance for such determination, the Tribunal explicitly decided to rely upon
international rules on state responsibility. The ICTY thus advanced the ‘overall control’ test
as a criterion generally valid for the imputation of conduct of organized armed groups to a
particular state. The test was based on judicial precedents and state practice. In addition, the
ICTY did not exclude the applicability of the ‘effective control’ standard, stating however
that it only applied for the attribution to a state of conduct by single private individuals.
Judicial decisions, even subsequent to Tadic, support the view that whenever the conduct of
organized armed groups or military units is at stake in suffices to show that the state to which
they may be linked exercises overall control over them, in order for the conduct of those
groups or units to be legally attributed to the state. Hence, any sound critique of Tadic
should not suggest that it dealt with a matter different from state responsibility. It should
instead be capable of showing that state and judicial practice do not corroborate that test.

CONCLUSION:
Respectfully, it can be argued that the ICJ wasted a fair chance to expand upon and enhance
the Nicaragua test. According to the argument, the Court also failed to treat Tadic fairly. The
ICTY had previously decided that state responsibility fell under the purview of the "overall
control" test. The Court should have proven that test's claimed incompatibility with state
practice and court tradition, a judicial exercise it declined to undertake or at least opted not to
participate in, rather than simply dismissing it as only being germane to the issue of how to
classify armed conflict. Even after Tadic, legal rulings have supported the idea that,
whenever organized armed groups or military units engage in conduct that is in question, it is
sufficient to demonstrate that the state to which they may be linked exercises overall control
over them in order for that conduct to be legally attributed to the state. Therefore, any valid
criticism of Tadic should not imply that it addressed a subject unrelated to state
responsibility. Instead, it should be able to demonstrate that state and court precedents do not
support that standard.We can only hope that the Court will consider state law when it revisits
this case in the future.