State responsibility for genocide in the open

05 March 2007 by HEIKELINA VERRIJN STUART

Some say that this has been the most difficult case in the history of the International Court of Justice (ICJ), a 60-year old UN court that rules on disputes between States, such as border issues or coastal fishing zones. On February 26, the ICJ finally concluded the genocide case of Bosnia-Herzegovina against Serbia, which had been running for almost 14 years.

Could Serbia be held responsible for genocide in Bosnia during the 1992-1995 conflict? Although crimes against humanity do not fall under its jurisdiction, the ICJ, closely following the footsteps of the International Criminal Tribunal for the Former Yugoslavia (ICTY), established that Serbia committed large-scale crimes against humanity. It also agreed with the ICTY that the Srebrenica massacre was genocide committed by the Bosnian Serbs. But for a State to be held responsible for genocide, it is necessary that the crimes were committed by organs of that State or under the instructions, directions or effective control of these organs, the Court said. The Court accepted that in the first years of the conflict such a strong link between Belgrade and the Bosnian Serb leadership did exist, but less so in 1995 when Srebrenica fell. Thus, it could ultimately not conclude, on the basis of the pattern of violence alone, that Serbia had the intent to destroy the Muslim population of Bosnia as such, in whole or in part, as required by the Genocide Convention.

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