Case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), judgment of 26 February 2007, General List No. 91.

• Author: Cernic, Jernej Letnar

Introduction

Earlier this year, on 27 February, a mass demonstration was held in Sarajevo, where 10,000 victims of the Srebrenica genocide expressed their disillusionment with the judgment of the International Court of justice ('ICJ') handed down a day earlier. On 26 February 2007, the ICJ had delivered its decision in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) {'Genocide Convention Case (Merits)'). (1) One of the victims in the demonstration carried a banner where it was ironically written that 8,000 Bosnian Muslim men were killed by 'aliens'. (2) This is just one indication that the ICJ's decision will have far-reaching consequences regarding the stability of this troubled region.

In this case, the ICJ was able to revisit one of the most enduring conundrums of international law. The rendered decision was the first time a State brought a case against another State for breaches of the Convention on the Prevention and Punishment of the Crime of Genocide ('Genocide Convention). (3) It comes as no surprise that the ICJ's decision was welcomed differently in the countries concerned. After the decision, representatives of Bosnia and Herzegovina noted that they 'did not get everything we wanted' but stressed 'we got quite a lot'. (4) Serbian agents noted that the ICJ accepted 'our argument that no one could prove that the Serbian people had the intent to destroy the Muslim people'. (5) One commentator even described the ruling as 'a judicial massacre'. (6) This short note examines the decision from a substantive point of view and attempts to shed new understanding on the decision.

1. Facts

   Between 6 and 11 July 1995 more than more 25,000 Bosnian Muslims, most of them women, children and elderly people living in and around town of Srebrenica, were forced to leave the town. In addition, 7,000 Bosnian Muslim men and boys were massacred by the Republika Srpska army in and around Srebrenica. (7) It was the largest single-death toll on European soil since the end of Second World War II. Bosnia maintained that in the course of the conflict in Bosnia and Herzegovina, agents of Serbia (8) had committed mass killings and acts causing serious bodily or mental harm against Bosnian Muslims in violation of the Genocide Convention. In this regard, Serbia did not deny that most of the events happened, and did not dispute that some of them amounted to war crimes or even crimes against humanity. It only contested the number of victims in specific cases and argued that it never had the requisite genocidal intent. Serbia also argued that these acts were not attributable to Serbia because they were committed by the army of the Republika Srpska in the Bosnian-Serb region of Bosnia and Herzegovina.

2. Decision

   The ICJ affirmed it had jurisdiction and found, by thirteen votes to two, that Serbia had not conspired to commit genocide nor had it incited the commission of genocide in violation of its obligations under the Genocide Convention. The ICJ also found, by eleven votes to four, that Serbia had not been complicit in genocide. However, the ICJ did find that Serbia had violated its obligation under the Genocide Convention to prevent genocide in Srebrenica, and that it had also violated its obligations under the Genocide Convention by having failed to co-operate fully with the International Criminal Tribunal for the former Yugoslavia ('ICTY'). The ICJ held that the genocide in Srebrenica was committed by the Republika Srpska army under the command of its VRS (9) Main Staff, which did possess the specific 'genocidal intent'.

   No financial compensation was awarded...