State Responsibility for Genocide: A Follow-Up

Posted: 25 Jun 2007

See all articles by Marko Milanovic

Marko Milanovic

University of Reading - School of Law

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Abstract

The Bosnian Genocide judgment of the International Court of Justice has come and gone, and it was, from a purely academic point of view, well worth the wait. The bottom line of the judgment is that Serbia is responsible under the Genocide Convention for failing to prevent the genocide in the Bosnian town of Srebrenica, committed by the Bosnian Serb army (VRS) in July 1995, and for not cooperating with the International Criminal Tribunal for the Former Yugoslavia (ICTY) in punishing the perpetrators of this atrocity. The ICJ indeed followed the ICTY in ruling that the only crime committed during the Bosnian war which amounted to genocide was the Srebrenica massacre. However, the Court also found that Serbia is not directly responsible for the Srebrenica genocide itself, nor is complicit in it. With certain significant exceptions, the judgment seems to be legally unimpeachable when it comes to the Court findings on genocide in Bosnia, and particularly in its application of the law of state responsibility.

The judgment truly excels as a final validation of the attribution model of state responsibility, as envisaged decades ago by Roberto Ago and as now codified in the ILC Articles on State Responsibility, and predicated on the methodological separation between primary and secondary rules of international law. The Court also made several significant pronouncements regarding state responsibility for acts of non-state actors, in this case the responsibility of Serbia for the genocide committed by the VRS/Republika Srpska. Most importantly for the future, the Court correctly applied the two tests of attribution that it formulated in its Nicaragua judgment, those of complete control and effective control, while rejecting the overall control test proposed by the ICTY Appeals Chamber in the Tadić case. These issues are not dealt with in this article in any great detail. The judgment itself has already been called "timid justice" and "wishy-washy," as well as "perverse" by some commentators, and characterized yet by others as a "judicial massacre." These are strong words indeed, and for the most part misplaced, as the Court's most prominent critics so far have failed to appreciate the principal legal constraints under which the Court had to operate, while they have also failed to comment on those parts of the judgment which are indeed deserving of strong criticism. This article, written for a symposium on the Genocide judgment organized by the European Journal of International Law, will focus precisely on these problematic parts of the judgment.

Section 2 of this article briefly comments on some of the constraints upon the Court, which defined the scope of the Genocide judgment and its final outcome, most notably the Court's limited jurisdiction, the legally very strict definition of genocide, and the litigation strategies of the two parties, the overly ambitious approach of Bosnia in particular. Sections 3 and 4 examine two important questions of fact and evidence which have not been dealt with by the Court in a fully satisfactory manner, namely the Scorpions paramilitary group and certain redacted ICTY documents, with the article arguing that the Court's examination of these issues was at best cursory, it also being counterproductive when it comes to the Court's credibility in the affected region.

Section 5 deals with the Court's analysis of Serbia's alleged responsibility for complicity in the Srebrenica genocide, and concludes that Court evaded the question of what was the level of mens rea required for complicity in genocide, even though that legal question was squarely before it, and also that it arguably could have drawn some different factual conclusions from the evidence put before it. Section 6 examines the Court's pronouncements on Serbia's responsibility for failing to prevent and punish genocide, it at the same being the most progressive and the most disappointing part of the judgment, chiefly due to the Court's unsatisfactory approach to reparations. Section 7 provides some concluding remarks.

Keywords: genocide, international crimes, state responsibility, Bosnia, Serbia, International Court of Justice

Suggested Citation

Milanovic, Marko, State Responsibility for Genocide: A Follow-Up. European Journal of International Law, Vol. 18, 2007, Available at SSRN: https://ssrn.com/abstract=996238

Marko Milanovic (Contact Author)

University of Reading - School of Law ( email )

Reading, RG6 6AH
United Kingdom

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