Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)

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Citation. I.C.J., 2007 I.C.J. 191

Brief Fact Summary.

Following the genocide of Bosnia Muslims, a suit was brought against Serbia and Montenegro (D) by Bosnia and Herzegovina (P).

Synopsis of Rule of Law.

The obligation under the Genocide Convention binds the contracting parties to the Convention not to commit, through their organs or persons or groups whose conduct is attributable to them, genocide and the other acts enumerated in Article II.

Facts.

A suit was brought against the Federal Republic of Yugoslavia (Serbia and Montenegro) (D) under the Genocide Convention by Bosnia and Herzegovina (P). The plaintiffs alleged that Serbia (D) contravened the Convention by committing genocide against Bosnia’s (P) Muslim population. The International Court of Justice in this first part of the case threw more light on the provisions of the Genocide Convention, including the undertaking to “prevent and punish” genocide in Article I, the definition of genocide in Article II, and the phase “responsibility of a State for genocide” in Article IX. (See Chapter 8, pages 54-55 for additional facts in this case).

Issue.

Are the obligation under the Genocide Convention binding on the contracting parties and do they prevent the parties from committing, through their organs or persons or groups whose conducts are attributable to them, genocide and other acts enumerated in Article II?

Held.

Yes. The obligation under the Genocide Convention binds the contracting parties to the Convention not to commit, through their organs or persons or group whose conduct is attributable to them, genocide and other acts enumerated in Article II.
The obligation imposed on the parties is dependent on the ordinary meaning of the terms of the Convention, read in context and in light of the Convention’s object and purpose. Resorting to supplementary means of interpretation, including the Convention’s preparatory work and the circumstances of its conclusion are the means of resolving the confusions associated to terms, context and purpose.
The parties under the Convention are under an obligation not to commit genocide themselves.  This obligation is not imposed expressly by the Convention but the effect of Article II is to prohibit states from committing genocide themselves. The logic behind the Convention is that the prohibition follows from the fact that the Article categorizes genocide as an international law crime and by agreeing to such a categorization, the parties must logically undertake not to commit the act described. It also follows from the expressly stated obligation to prevent the commission of acts of genocide.
Serbia (D) further postulated that the drafting history of the Convention shows that the states are not directly responsible under the Convention for acts of genocide, but heat states have civil responsibility to prevent and punish genocide committed by individuals. The drafting history also throws more light on the fact the Chairman of the Sixth Committee believed that Article IX as modified provided for state responsibility for genocide.

Discussion.

Serbia’s (D) violations of its obligation stems not only from the Genocide Convention, but also from two protective measures issued by the I.C.J. in April and September 1993, under which the former Federal Republic of Yugoslavia was ordered explicitly to prevent the crimes of genocide and to make sure that such crimes were not committed by military or paramilitary formations operating under its control or with its support. Serbia (D) did not make any effort to prevent the July 1995 Srebrenica massacre despite the order, although according to the I.C.J, it should have “been aware of the serious danger that acts of genocide would be committed”.