GENOCIDE

International Court of Justice rules that evidence of active role in genocide by Serbian state is not conclusive but that it does show (1) that Serb government should have foreseen risk of genocide, but failed to take any steps to prevent massacre of non Serb Muslims at Srebenicia and (2) has breached its duty to arrest those who conducted massacre and send them to ICTY for trial

Of the several parties in the region who might be parties, the fifteen member International Court of Justice (ICJ) concludes that the Republic of Serbia is, as of the date of the present Judgment, the only Respondent. Any responsibility for past events determined in its Judgment involved at the relevant time the State of Serbia and Montenegro.

As to its jurisdiction, the ICJ had already decided that it had jurisdiction in the present case in its Judgment on preliminary objections of July 11, 1996, and finds that this decision constituted res judicata. i.e. was not open to re examination except by way of revision under Article 61 of the

Statute.

The Court notes that the Respondent already applied for revision of the 1996 Judgment in 2001 and that the Court dismissed this Application in a Judgment of February 3, 2003. The Court accordingly affirms its jurisdiction to adjudicate upon the dispute.

The Court first points out that its jurisdiction rests solely on Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 (the Convention). Thus, the Court only has the power to rule on alleged breaches of obligations imposed by the Convention, and not on breaches of other obligations under international law, such as those

protecting human rights in armed conflict, even if these breaches are of peremptory norms, or of obligations that protect essential humanitarian values.

The Respondent first argued that "the Genocide Convention does not provide for the responsibility of States for acts of genocide"�. After examining all the relevant Convention articles, the Court concludes that the duty of States to prevent genocide under Article I of the Convention necessarily implies a ban against States themselves committing genocide.

Therefore, if an organ of the State, or a person or group whose acts are attributable to the State, commits an act of genocide or a related act set forth in Convention Article III , the State will incur international responsibility. Moreover, the Court can find States responsible for genocide, or for complicity in genocide, even if a competent court has not previously convicted any individual of that crime.

The Convention requires that, for particular acts to constitute genocide, the perpetrator must have done the acts with the intent to destroy the protected group, in whole or in part. Herein lies an important distinction between genocide and "ethnic cleansing"�. While a perpetrator can carry out

"ethnic cleansing"� simply by displacing a group of persons from a specific area, genocide requires that these actions be done with the specific intent to destroy all or part of the group.

Furthermore, the Court must be able to define the targeted group by specific positive characteristics"�national, ethnic, racial or religious "�and not by the lack of them. It therefore rejects the negative definition of the group advanced by the Applicant as the "non Serb"� population. For the purposes of Applicant's case, the Court delineates the alleged target group as the "Bosnian Muslims."�

With respect to the burden of persuasion, the Applicant has to prove its case and any party stating a fact has to establish it. The Court requires that the party alleging that someone has committed the crime of genocide (or related acts listed in Article III of the Convention) must prove it by evidence that is fully conclusive. With respect to breaches of the duty to prevent genocide and to punish and extradite perpetrators, the Court requires proof at a high level of certainty appropriate to the seriousness of the allegations.

With regard to the sources of proof, the Court declares that it will make its own determinations of fact based on the evidence presented. In so doing, it will accept, inter alia, relevant trial findings of fact by the International Criminal Tribunal for the former Yugoslavia (ICTY) as highly

persuasive. It will also accord a certain weight to a statement of agreed facts and a sentencing judgment of the ICTY following a guilty plea. In commenting on a number of other sources of evidence, the Court outlines its assessment criteria. In passing, it notes that the U. N. Secretary General's report entitled "The Fall of Srebrenica"� has considerable authority.

Before turning to the allegations of fact advanced by Applicant Bosnia and Herzegovina, the Court briefly outlines the background of the case relating to the break up of the Socialist Federal Republic of Yugoslavia (SFRY). It also defines the different entities involved in the events complained of. The Court then examines the links between the Government of the Federal

Republic of Yugoslavia (FRY) and the authorities of the Republika Srpska (which was the self proclaimed "Republic of the Serb People of Bosnia and Herzegovina"�).

The Court decides that there is proof that the FRY made its substantial military and economic support available to the Republika Srpska. Had it withdrawn that support, this would have greatly narrowed the options available to the Republika Srpska authorities.

With respect to "killing members of the protected group"� in breach of Article II (a) of the Convention, the Court finds that overwhelming evidence shows that individuals carried out massive killings throughout Bosnia and Herzegovina during the conflict.

The Court is not convinced, however, that the perpetrators of those killings did so with the specific intent to destroy, in whole or in part, the group of Bosnian Muslims. It admits that the killings may have constituted "war crimes"� and "crimes against humanity,"� but reminds us that it lacks jurisdiction in this case to determine whether or not this is so.

Turning to the massacre at Srebrenica, the Court carefully examined the evidence. The ICTY had found that Bosnian Serb forces killed over 7,000 unarmed Bosnian Muslim men following the takeover of Srebrenica in July 1995. The Court concludes that both killings and acts causing serious bodily or mental harm had taken place. Moreover, the Court finds that the Main

Staff of the VRS (the army of the Republika Srpska) had the necessary specific intent to destroy, in part, the Srebrenica group of Bosnian Muslims. Accordingly, the VRS itself had committed acts of genocide in or around Srebrenica from about July 13, 1995.

The Court then proceeds to examine evidence of acts "causing serious bodily or mental harm to members of the protected group"� (Article II (b) of the Convention). It finds that the Bosnian Muslims were systematically victims of massive mistreatment, beatings, rape and torture causing serious bodily and mental harm during the conflict. It finds, however, that the Applicant has not conclusively shown the specific intent to destroy the protected group. The Court also concludes that the Applicant has conclusively shown that there were acts "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part"� within Convention Article II (c) but that proof of the specific genocidal intent was lacking.

The Applicant has also alleged breaches of Articles II (d) and (e) of the Convention by Respondent's "imposing measures to prevent births within the protected group"� and "forcibly transferring children of the protected group to another group."� The Court , however, cannot find that the evidence is persuasive enough to establish that such acts took place.

The Court then decides that the Applicant has not established that Republika Srpska had formulated any overall plan to commit genocide based on its 1992 Strategic Goals. It also rejects Applicant's claim that the very pattern of the atrocities committed in many communities, over a lengthy period, aimed at Bosnian Muslims, can establish the specific genocidal intent.

Having concluded that the army of the Republika Srpska committed acts of genocide at Srebrenica, the Court turns to the question of whether the State Respondent was legally responsible for these acts. In the light of record evidence, the Court finds that it cannot attribute the acts of those who committed genocide at Srebrenica to the Respondent, under the rules of

international law on State responsibility.

In particular, it cannot impute the acts of genocide to the Respondent as done by persons or entities ranking as organs of the Respondent. The Court also finds that the Applicant has not shown that those who carried out the massacres acted on the instructions, or under the direction, of the Respondent nor that the Respondent exercised effective control over the military operations in the course of which the massacres were committed.

With respect to Article III, ¶ (e) (complicity in genocide), the Court declares that there is little doubt that those guilty of the atrocities in Srebrenica acted, at least in part, with the resources which they acquired as a result of the FRY's general aid policy. One of the very specific conditions for the legal responsibility of the Respondent, however, is not met. Applicant has not conclusively proven that, at the crucial time, the FRY supplied aid to the perpetrators in full awareness that the latter would make use of that aid to commit genocide.

As to the Respondent's duty to prevent genocide, the Court states, inter alia, that the obligation is one of conduct and not one of result. That is, a State does not incur responsibility simply because genocide takes place. Its liability rather turns on whether the State clearly failed to take all measures to prevent genocide (1) which were within its power, and (2) which might have contributed to preventing the genocide.

A State can be found responsible only if a genocide actually happened. Thus, the Court considers the Respondent's conduct only as it has to do with the Srebrenica massacres. Finally, it is enough that the State has been aware, or should normally have been aware, of the serious danger of genocide.

The Court notes that the FRY was in a position of influence over the Bosnian Serbs who planned and carried out the genocide in Srebrenica. This influence arises from the strength of the political, military and financial links between the FRY on the one hand, and the Republika Srpska and the VRS on the other.

Although the Court is unable to conclude that the information available to the Belgrade authorities indicated, as a matter of certainty, that genocide was imminent, they could hardly have been unaware of the serious risk of it. Thus, the Yugoslav federal authorities should have made the best efforts within their power to try and prevent the tragic events then taking shape,

whose scale they might have surmised. Yet the Respondent has not shown that it took any steps to avert the atrocities that came to pass. The Respondent thus violated its duty to prevent the Srebrenica genocide to such a degree as to incur international responsibility under Article I of the Genocide Convention.

The Court then addresses the after the fact duty of States to punish those who commit genocide. Under Article VI of the Convention, States must co operate with "such international penal tribunal as may have jurisdiction"� in the relevant matter. The ICTY constitutes such a tribunal.

There is plentiful, and mutually corroborative, information suggesting that the Serb General indicted by the ICTY for genocide, as one of those mainly 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. The indications are that he is still there now and that the Serb authorities have failed to do what they could reasonably do to find out exactly where he is living and to arrest him. As a result, the Respondent has breached its duty to co operate fully with the ICTY; thus, violating its duties under Article VI of the Genocide Convention.

Finally, the Court finds that with respect to the massacres at Srebrenica in July 1995, the Respondent failed to obey the Court's Order of April 8, 1993, reaffirmed in its Order of September 13, 1993. The Court had ordered it to take all measures within its power to forestall the crime of genocide and to make sure that any organizations and persons which may be subject to its influence do not carry out genocide.

Having made its findings, the Court turns to the Applicant's request for reparation. With respect to the breach of its duty to prevent genocide, the Court finds that the Applicant has not shown that the Respondent could in fact have averted the genocide at Srebrenica if the Respondent had tried to prevent it. Thus, financial compensation is not the appropriate form of reparation. The Court, however, does formally declare that the Respondent has failed to comply with its obligation to prevent the crime of genocide.

As to the obligation to punish acts of genocide, the Court concludes that the following declaration would be an appropriate satisfaction. The Court formally declares that the Respondent has breached the Convention in that it has failed in its duty to arrest and transfer to the ICTY any persons accused of genocide.

Citation: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), February 27, 2007 (International Court of Justice, based on Court’s press release).

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