Response from the International Community

Serbian government building in Belgrade

When Bosnia brought its case against Serbia, the Serbian government responded that the International Court of Justice did not have jurisdiction to hear the case. However, in 1996 the ICJ ruled that it did, in fact, have jurisdiction over the case. Article IX of the Genocide Convention states that any disputes over the treaty’s applicability, interpretation, or fulfillment of obligations by treaty parties can be submitted to the ICJ by one of the parties involved in the dispute. Since both Bosnia and Serbia are members of the Genocide Convention, Bosnia had the standing to take the case to the ICJ.

International Court of Justice (ICJ) at the Peace Palace, The Hague, The Netherlands

The ICJ in February of 2007 finally ruled on the case. In a split decision, the majority of judges found that Serbia:
  • had not committed genocide,
  • had not conspired to commit genocide, and
  • had not been complicit in genocide.
But the court did find that Serbia was in violation of Article 1 of the Genocide Convention in failing to act to prevent the genocide that occurred in Srebrenica.

The court’s finding that Serbia was in violation of its obligations under the Genocide Convention only for failing to prevent the massacre at Srebrenica could be seen as a disappointment for some who were hoping the ICJ would come down much harder on Serbia. The case highlights how difficult it is to prove who is ultimately responsible for genocide.

Former Secretary-General Kofi Annan (center) with the justices of the International Criminal Tribunal for the former Yugoslavia
Finally, in addition to finding that Serbia was guilty of failing to prevent genocide at Srebrenica, the ICJ also found Serbia guilty of violating the Genocide Convention for failing to turn over General Mladic (who was thought to be hiding in Serbia) to the International Criminal Tribunal for the Former Yugoslavia (ICTY). (Serbian officials in Belgrade maintained that they did not know General Mladic’s whereabouts. In early 2007, those same officials turned over General Zdravko Tolimir, the official third most wanted by the ICTY and Mladic’s right-hand man.) Article 6 of the Genocide Convention obliges all of its members to cooperate with any international tribunal set up to deal with genocide. The ICTY is such a tribunal, and it did find that certain individuals had engaged in genocide at Srebrenica.

What was not proven in the ICJ was that the state of Serbia had direct responsibility for these Serbian military commanders, who represented the Serb Republic within Bosnia. The ICJ did not find that people such as Mladic received authorization from Belgrade.
Former Yugoslav President Slobodan Milosevic at the Yugoslav war crimes tribunal, July 5, 2004

Before the formation of the International Criminal Court (ICC) and the special ad-hoc international criminal tribunals for Rwanda and Yugoslavia, the only international judicial outlet in which a case concerning genocide could be heard was in the International Court of Justice. In contrast to the ad-hoc tribunals and the ICC, the ICJ does not make determinations of individual criminal responsibility; it only works to determine whether a state that is party to an international treaty is in violation of the law. So, unlike the other tribunals, it cannot sentence individuals to prison terms. However, that does not necessarily mean that the ICJ is an ineffective body when it comes to protecting human rights.

The ICJ’s finding that Serbia was in violation of the Genocide Convention for not preventing the massacre at Srebrenica established an important precedent. It means that states that use proxy forces to do their dirty work can still be held accountable for actions in which they are not directly implicated.

Why do you think an international court would choose not to aggressively investigate a potential genocide?

Can international laws actually stop governments from abusing their citizens, or do you think force of some sort is usually required?

Genocide Convention
     Web Resource 1
     Web Resource 2
ICJ: Application of the Genocide Convention to Bosnia Case
Jurist: Serbia not guilty of Bosnia genocide but broke law by not preventing Srebrenica

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difficulties proving genocide cases.