The ICJ Decision - Bosnia and Herzegovina v. Serbia and Montenegro (FRY)

ICJ v. ICTY International Court of Justice It is a civil court and tries states It is a civil court and tries states i.e. Bosnia-Herzegovina v. Serbia and Montenegro i.e. Bosnia-Herzegovina v. Serbia and Montenegro Jurisdiction for this case is based on Article IX of the Convention of the Prevention and Punishment of the Crime of Genocide (December 9 th, 1948). Jurisdiction for this case is based on Article IX of the Convention of the Prevention and Punishment of the Crime of Genocide (December 9 th, 1948). International Criminal Tribunal of Yugoslavia It is a criminal court and tries individuals Established by Resolution 827 of the UN Security Council, which was passed on May 25 th, 1993 It has tried people such as Slobodan Milošević

Does the ICJ have jurisdiction in this case? - YES The Court recalls that it already decided it had jurisdiction in 1996 and was not open to reexamination. The Court recalls that it already decided it had jurisdiction in 1996 and was not open to reexamination. Jurisdiction is based on Article IX of the Convention of the Prevention and Punishment Jurisdiction is based on Article IX of the Convention of the Prevention and Punishment Court finds that “the convention necessarily implies a prohibition against States themselves committing genocide, and that, if an organ of the State, commits an act of genocide or a related act enumerated in Article III of the Convention, the international responsibility of the State is incurred.” Court finds that “the convention necessarily implies a prohibition against States themselves committing genocide, and that, if an organ of the State, commits an act of genocide or a related act enumerated in Article III of the Convention, the international responsibility of the State is incurred.”

Has Serbia committed, conspired, or been complicit in genocide? – NO “The Court is not convinced that those killings were accompanied by the specific intent on the part of the perpetrators to destroy, in whole or in part, the group of Bosnian Muslims.” “The Court is not convinced that those killings were accompanied by the specific intent on the part of the perpetrators to destroy, in whole or in part, the group of Bosnian Muslims.” Court claims that it as not been conclusively established that “the FRY supplied aid to the perpetrators of the genocide in full awareness that the aid supplied would be used to commit genocide.” Court claims that it as not been conclusively established that “the FRY supplied aid to the perpetrators of the genocide in full awareness that the aid supplied would be used to commit genocide.” Court notes that crimes may account to war crimes or crimes against humanity but claims no jurisdiction to determine this. Court notes that crimes may account to war crimes or crimes against humanity but claims no jurisdiction to determine this.

Did Serbia violate an obligation to prevent genocide? – YES FRY “failed to take all measures to prevent genocide which were within its power.” FRY “failed to take all measures to prevent genocide which were within its power.” The FRY was in ‘a position of power’ with political, military, and financial links between FRY and Bosnian Serbs The FRY was in ‘a position of power’ with political, military, and financial links between FRY and Bosnian Serbs This decision was based solely on actions prior and during the Srebrenica Massacre. This decision was based solely on actions prior and during the Srebrenica Massacre.

Should an order of reparation be issued for Serbia? - NO “Since it has not been shown that the genocide in Srebrencia would in fact have been averted if the Respondent (FRY) had attempted to prevent it, financial compensation for the failure to prevent the genocide at Srebrenica is not the appropriate form of reparation.” “Since it has not been shown that the genocide in Srebrencia would in fact have been averted if the Respondent (FRY) had attempted to prevent it, financial compensation for the failure to prevent the genocide at Srebrenica is not the appropriate form of reparation.” Appropriate response by FYR is a declaration of: Appropriate response by FYR is a declaration of: Failure ‘to comply with obligation to prevent the crime of genocide’ Failure ‘to comply with obligation to prevent the crime of genocide’ Continued breach of obligations of transfers to the ICTY Continued breach of obligations of transfers to the ICTY