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. 2007 I.C.J. 191.

Brief Fact Summary. Bosnia and Herzegovina (P) brought suit against the Federal Republic of Yugoslavia (Serbia and Montenegro) (D) in the International Court of Justice in 1993, on the grounds of violations of the Convention on the Prevention and Punishment of the Crime of Genocide.

Synopsis of Rule of Law. Under International law, the conduct of any state organ is to be considered an act of the state, therefore giving rise to the responsibility of the state if the conduct constitutes a breach of an international obligation of the state.

Facts. The republics of Bosnia and Herzegovina (P), Croatia, Macedonia and Slovenia declared independence when the Socialist Federal Republic of Yugoslavia began to break up in the early 1990s. this led Serbia and Montenegro to declare themselves the Federal Republic of Yugoslavia (FRY) (D). A massacre was perpetrated by Serbian forces on 8000 Bosnia Muslim men of fighting age in a small village called Srebrenica in July 1995 during armed conflicts that arose in 1992-1995 within Bosnia and Herzegovina (P). A suit was filed against the FRY (Serbia and Montenegro) (D) by Bosnia and Herzegovina (P) in 1993 in the International Court of Justice, claiming violations of the Convention on the Prevention and Punishment of the Crime of Genocide, on the theory that the FRY (D) was responsible for the actions of Serbian forces.

Issue. Under International law, is the conduct if any state organ considered an act of the state, which can give rise to the responsibility of the state if the conduct constitutes a breach of an international obligation of the state?

Held. (Judge not identified in casebook excerpt). Yes. Under International law, the conduct of any state organ is to be considered an act of the state, therefore giving rise to the responsibility of the state if the conduct constitutes a breach of an international obligation of the state. This is a rule of customary international law that was codified in Article 4 of the ILC Articles of State responsibility.
No evidence showed that the Serbian forces were de jure organs of FRY (D) and this case did not show that the army of the FRY (D) took part in the massacres or that the political leaders of the state had any part of it. Though the FRY (D) was providing some sought of financial and other support to the Serbian forces, this does not automatically make them organs of the FRY (D).
Also, no evidence was provided to prove that the Serbs were under the effective control of FRY (D) while conducting the massacre at Srebrenica. This can only imply that those who were responsible for the massacre were not organs of the FRY (D) and the FRY (D) cannot take responsibility under international law for the massacres.

Discussion. The brief for the first part of this case, interpreting the requirements of the Genocide Convention, which is excerpted on page 166 of the casebook, should be looked into. The I.C.J. had to refer to a standard set by Nicaraguan v. United States in deciding whether to hold FRY (D) liable for the alleged genocide at Srebrenica by certain Bosnian Serbs, in which the United States was found not to be legally responsible for the actions of the Contra guerrillas, despite their common goal and pubic support.