Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) - The Court affirms that it has jurisdiction to deal with the

INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 251KJ The Hague, Netherlands
Tel.: +31(0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.tcJ-CIJ.org

Press Release
----------------------------------------------------- Unofficial

No. 2007/8
26 February 2007

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

The Court affirms that it bas jurisdiction to deal with the case

The Court finds that Serbia bas violated its obligation under the Genocide Convention to
prevent genocide in Srebrenica and that it bas also violated its obligations under the

Convention by having failed fully to co-operate with the InternationaCriminal
Tribunal for the former Yugoslavia (ICTY)

THE HAGUE, 26 February 2007. The International Court of Justice (ICJ), principal judicial

organ of the United Nations, today rendered its Judgment in the case concerning the Application of
the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro).

In its Judgment, which is final, binding and without appeal, the Court

"(1) by ten votes to five,

Rejects the objections contained in the final submissions made by the Respondent to the
effect that the Court has no jurisdiction;and affirms that it has jurisdiction, on the basis of

Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, to
adjudicate upon the dispute brought before it on 20 March 1993 by the Republic of Bosnia and
Herzegovina;

IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Owada, Simma,

Tomka, Abraham, Keith, Sepulveda-Amor, Bennouna; Judge ad hoc Mahiou;

AGAINST: Judges Ranjeva, Shi, Koroma, Skotnikov; Judge ad hoc Kreéa;

(2) by thirteen votes to two,

Finds that Serbia has not committed genocide, through its organs or persans whose acts
engage its responsibility under customary international law, in violation of its obligations under the
Convention on the Prevention and Punishment of the Crime of Genocide;

IN FAVOUR: President Higgins; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka,
Abraham, Keith, Sepulveda-Amor, Bennouna, Skotnikov; Judge ad hoc Kreéa;

AGAINST: Vice-President Al-Khasawneh; Judge ad hoc Mahiou; - 2 -

(3) by thirteen votes to two,

Finds that Serbia has not conspired to commit genocide, nor incited the commission of
genocide, in violation of its obligations under the Convention on the Prevention and Punishment of

the Crime of Genocide;

IN FAVOUR: President Higgins; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka,
Abraham, Keith, Septilveda-Amor, Bennouna, Skotnikov; Judge ad hoc Kreéa;

AGAINST: Vice-President Al-Khasawneh; Judge ad hoc Mahiou;

(4) by eleven votes to four,

Finds thatSerbia has not been complicit in genocide, in violation of its obligations under the
Convention on the Prevention and Punishment of the Crime of Genocide;

IN FAVOUR: President Higgins; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka,
Abraham, Septilveda-Amor, Skotnikov; Judge ad hoc Kreéa;

AGAINST: Vice-President Al-Khasawneh; Judges Keith, Bennouna; Judge ad hoc Mahiou;

(5) by twelve votes to three,

Finds that Serbia has violated the obligation to prevent genocide, under the Convention on
the Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred
in Srebrenica in July 1995;

IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi,
Koroma, Owada, Simma, Abraham, Keith, Septilveda-Amor, Bennouna;
Judge ad hoc Mahiou;

AGAINST: Judges Tomka, Skotnikov; Judge ad hoc Kreéa;

(6) by fourteen votes to one,

Finds that Serbia has violated its obligations under the Convention on the Prevention and
Punishment of the Crime of Genocide by having failed to transfer Ratko Mladié, indicted for
genocide and complicity in genocide, for trial by the International Criminal Tribunal for the former

Yugoslavia, and thus having failed fully to co-operate with that Tribunal;

IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi,

Koroma, Owada, Simma, Tomka, Abraham, Keith, Septilveda-Amor, Bennouna,
Skotnikov; Judge ad hoc Mahiou;

AGAINST: Judge ad hoc Kreéa;

(7) by thirteen votes to two,

Finds thatSerbia has violated its obligation to comply with the provisional measures ordered

by the Court on 8 April and 13 September 1993 in this case, inasmuch as it failed to take ali
measures within its power to prevent genocide in Srebrenica in July 1995;

IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi,
Koroma, Owada, Simma, Tomka, Abraham, Keith, Septilveda-Amor, Bennouna;
Judge ad hoc Mahiou;

AGAINST: Judge Skotnikov; Judge ad hoc Kreéa; - 3 -

(8) by fourteen votes to one,

Decides that Serbia shall immediately take effective steps to ensure full compliance with its
obligation under the Convention on the Prevention and Punishment of the Crime of Genocide to
punish acts of genocide as defined by Article II of the Convention, or any of the other acts

proscribed by Article IIIof the Convention, and to transfer individuals accused of genocide or any
of those other acts for trial by the International Criminal Tribunal for the former Yugoslavia, and to
co-operate fully with that Tribunal;

IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi,
Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepulveda-Amor, Bennouna,
Skotnikov; Judge ad hoc Mahiou;

AGAINST: Judge ad hoc Kreéa;

(9) by thirteen votes to two,

Finds that, as regards the breaches by Serbia of the obligations referred to in
subparagraphs (5) and (7) above, the Court's findings in those paragraphs constitute appropriate
satisfaction, and that the case is not one in which an order for payment of compensation, or, in

respect of the violation referred to in subparagraph (5), a direction to provide assurances and
guarantees of non-repetition, would be appropriate.

IN FAVOUR: President Higgins; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka,

Abraham, Keith, Sepulveda-Amor, Bennouna, Skotnikov; Judge ad hoc Kreéa;

AGAINST: Vice-President Al-Khasawneh; Judge ad hoc Mahiou."

History of the proceedings

The whole procedural history of the case may be found in Press Release No. 2006/9 of
27 February 2006.

Reasoning of the Court

Identificationof the respondent party

The proceedings were instituted against the Federal Republic of Yugoslavia (later "Serbia
and Montenegro"), which then consisted of the two Republics of Serbia and Montenegro. Since

Montenegro became an independent State on 3 June 2006, the Court first needs to identify the
Respondent in the current proceedings. Having considered the views of Bosnia and Herzegovina,
the Republic of Serbia and the Republic of Montenegro, it concludes that the Republic of Serbia is
at the date of the present Judgment the only Respondent. It however recalls that any responsibility

for past events determined in its Judgment involved at the relevant time the State of Serbia and
Montenegro.

The Court's jurisdiction

The Court examines the jurisdictional objection raised by the Respondent in its
2001 Initiative, in which it claimed that its admission to the United Nations in 2000 had shown that

it had not been a Member of the United Nations from 1992 to 2000 and that it was thus not a party
to the Statute ofthe Court when the case was filed in 1993.

After consideration of the Parties' arguments, the Court recalls that it had already decided

that it had jurisdiction in the present case in its Judgment on preliminary objections of
11 July 1996, and finds that this decision constituted res judicata, i.e. was not open to -4 -

re-examination except by way of revision under Article 61 of the Statute. The Court notes that the

Respondent already applied for revision of the 1996 Judgment in 2001 and that this Application
was dismissed by the Court in a Judgment of 3 February 2003. The Court accordingly affirms its
jurisdiction to adjudicate upon the dispute.

The applicable law

The Court goes on to address the issue of the applicable law and notes that its jurisdiction in
the case is based solely on Article IX of the Convention on the Prevention and Punishment of the

Crime of Genocide of 9 December 1948 ("the Genocide Convention"). This means that the Court
has power to rule on alleged breaches of obligations imposed by the Genocide Convention, but not
on breaches of other obligations under international law, such as those protecting human rights in
armed conflict, even if these breaches are of obligations under peremptory norms, or of obligations

which protect essential humanitarian values.

The Respondent argued that "the Genocide Convention does not provide for the
responsibility of States for acts of genocide". After examination of ali the relevant articles of the

Convention, the Court finds that the obligation on States to prevent genocide under Article I of the
Convention necessarily implies a prohibition against States themselves committing genocide, and
that, if an organ of the State, or a persan or group whose acts are attributable to 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. The Court observes in that respect that States can be held
responsible for genocide or for complicity in genocide, even if no individual has previously been
convicted of the crime by a competent court.

Reviewing other legal requirements of the Convention, the Court observes that for particular
acts to be qualified as genocide, they must be accompanied by the intent to destroy the protected
group, in whole or in part, as such. It stresses the difference between genocide and "ethnie
cleansing": while "ethnie cleansing" can be carried out by the displacement of a group of persans

from a specifie area, genocide is defined by the above-mentioned specifie intent to destroy the
group or part of it. The Court considers that the targeted group must be defined by particular
positive characteristics- national, ethnical, racial or religions- and not by the Jack of them.

It therefore rejects the negative definition of the group advanced by the Applicant as the
"non-Serb" population, and concludes that, for the purposes of the case, the group must be defined
as the "Bosnian Muslims" in view of the very limited reference by the Applicant to other non-Serb
groups.

Questions of proof

With respect to the burden of proof, the Court reiterates that the Applicant must establish its

case and that any party stating a fact must establish it.

Conceming the standard of proof, the Court requires that allegations that the crime of
genocide or related acts enumerated in Article III of the Convention have been committed must be

proved by evidence that is fully conclusive. As far as breaches of the obligation to prevent
genocide and to punish and extradite perpetrators are concerned, the Court requires proof at a high
level of certainty appropriate to the seriousness of the allegation.

With regard to the method of proof, the Court indicates that it will make its own
determinations of fact based on the evidence presented, while accepting relevant findings of fact of
the International Criminal Tribunal for the former Yugoslavia (ICTY) at trial as highly persuasive.
It will also give a certain weight to a statement of agreed facts and a sentencing judgment of the

ICTY following a guilty plea. The Court also comments on a number of other sources of evidence
and outlines the criteria upon which the value of these sources will be assessed. It notes that the
report of the United Nations Secretary-General entitled "The Fall of Srebrenica" has considerable
authority. - 5 -

The facts invoked by the Applicant

Before turning to the allegations of fact advanced by Bosnia and Herzegovina, the Court
briefly outlines the background of the case relating to the break-up of the Socialist Federal
Republic of Yugoslavia (SFRY) and defines the different entities involved in the events

complained of. The Court then examines the links between the Government of the Federal
Republic of Yugoslavia (FRY) and the authorities of the Republika Srpska (which was the
self-proclaimed "Republic of the Serb People of Bosnia and Herzegovina"). The Court finds that
the FRY made its considerable military and financial support available to the Republika Srpska and
that, had it withdrawn that support, this would have greatly constrained the options available to the

Republika Srpska authorities.

The Court then sets out to examine the facts alleged by Bosnia and Herzegovina in order to
decide: (1) whether the alleged atrocities occurred and, if established, (2) whether the facts

establish the existence of an intent, on the part of the perpetrators, to destroy in whole or part the
group of the Bosnian Muslims.

The Court makes long and detailed findings of fact on the alleged atrocities which are

grouped according to the categories of prohibited acts described in Article II of the Genocide
Convention.

With respect to "killing members of the protected group" (Article II ill of the Convention),

the Court finds that it is established by overwhelming evidence that massive killings throughout
Bosnia and Herzegovina were perpetrated during the conflict. However, the Court is not convinced
that those killings were accompanied by the specifie intent on the part of the perpetrators to
destroy, in whole or in part, the group of Bosnian Muslims. It acknowledges that the killings may
amount to war crimes and crimes against humanity, but that it has no jurisdiction to determine

whether this is so.

The Court turns to the massacre at Srebrenica and carefully examines the evidence regarding
that event, including the fact that the ICTY found in the Krstiéand Blagojevié cases that Bosnian

Serb forces killed over 7,000 Bosnian Muslim men following the takeover of Srebrenica in
July 1995. The Court concludes that both killings and acts causing serions bodily or mental harm
occurred. The Court finds that the Main Staff of the VRS (the army of the Republika Srpska) had
the necessary specifie intent to destroy in part the group of Bosnian Muslims (specifically the

Bosnian Muslims of Srebrenica) and that accordingly acts of genocide were committed by the VRS
in or around Srebrenica from about 13 July 1995.

The Court then proceeds to examine evidence of acts "causing serions bodily or mental harm

to members of the protected group" (Article II .(hlof the Convention). It finds that the Bosnian
Muslims were systematically victims of massive mistreatment, beatings, rape and torture causing
serions bodily and mental harm during the conflict. However, it finds that the specifie intent to
destroy the protected group is not conclusively established.

The Court then examines alleged acts of "deliberately inflicting on the group conditions of
!ife calculated to bring about its physical destruction in whole or in part" (Article II (çl of the
Convention). It finds that there is conclusive evidence that the alleged acts were committed, but
that the necessary specifie intent is not established. - 6 -

With respect to Articles II @ and W of the Convention- "imposing measures to prevent

births within the protected group" and "forcibly transferring children of the protected group to
another group"-, the Court cannot find that the evidence is sufficient to establish that such acts
occurred.

The Court then finds that the Applicant has not demonstrated any overall plan to commit
genocide on the basis of the 1992 Strategie Goals issued by the authorities of the Republika Srpska.
It also rejects Bosnia and Herzegovina' s claim that the very pattern of the atrocities committed over
many communities, over a lengthy period, focussed on Bosnian Muslims, can demonstrate the

necessary specifie intent to destroy the group in whole or in part.

The question of responsibility for events at Srebrenica under Article III, paragrÛ!.}of the
Convention

Having concluded that acts of genocide were committed at Srebrenica by the army of the
Republika Srpska, the Court turns to the question of whether the Respondent was legally
responsible for these acts.In the light of the information available to it, the Court finds that the
acts of those who committed genocide at Srebrenica cannot be attributed to the Respondent under

the rules of international law of State responsibility. In particular, the Court concludes, judging on
the basisof the materials before it, that the acts of genocide cannot be attributed to the Respondent
as having been committed by persons or entities ranking as organs of the Respondent. The Court
also finds that it has not been established that those massacres were committed on the instructions,

or under the direction of the Respondent nor that the Respondent exercised effective control over
the operations in the course of which the massacres were committed.

The question of responsibility under paragraphs {hlWto of Article III of the Convention

The Court notes that the acts enumerated in paragraphs {hl to @ of Article III are not
relevant in the present case. With respect to paragraph W (complicity in genocide), the Court
notes that there is little doubt that the atrocities in Srebrenica were committed, at least in part, with

the resources which the perpetrators possessed as a result of the general policy of aid and assistance
by the FRY. However, one of the very specifie conditions for the legal responsibility of the
Respondent is not fulfilled since it has not been conclusively established that, at the crucial time,
the FRY supplied aid to the perpetrators of the genocide in full awareness that the aid supplied

would be used to commit genocide.

The question of responsibility for breach of the obligations to prevent and punish genocide
(Article 1of the Convention)

With respect to the obligation to prevent genocide, the Court states inter alia that the
obligation is one of conduct and not one of result: responsibility is not incurred simply because
genocide occurs but rather if the State manifestly failed to take ali measures to prevent genocide

which were within its power, and which might have contributed to preventing the genocide. The
Court also notes that aState can be held responsible only if a genocide was actually committed, and
that thus it will consider the Respondent' s conduct only in connection with the Srebrenica
massacres. Finally, it is sufficient that the State was aware, or should normally have been aware, of

the serious danger that acts of genocide would be committed.

The Court observes that the FRY was in a position of influence over the Bosnian Serbs who
devised and implemented the genocide in Srebrenica, owing to the strength of the political, military
and financiallinks between the FRY on the one hand and the Republika Srpska and the VRS on the

other. The Court further recalls that although it has not found that the information available to the
Belgrade authorities indicated, as a matter of certainty, that genocide was imminent, they could
hardly have been unaware of the serious risk of it. In the view of the Court, the Yugoslav federal - 7-

authorities should have made the best efforts within their power to try and prevent the tragic events

then taking shape, whose scale might have been surmised. Yet the Respondent has not shown that
it took any initiative to prevent what happened, or any action on its part to avert the atrocities
which were committed.

The Court concludes that the Respondent did nothing to prevent the Srebrenica massacres
and that it thus violated its obligation to prevent genocide in such a manner as to engage its
international responsibility under Article I of the Genocide Convention.

Regarding the obligation to punish perpetrators of genocide, the Court states that under
Article VI of the Convention, States have an obligation to co-operate with "such international
penal tribunal as may have jurisdiction" in the relevant matter, and considers that the ICTY
constitutes such an international penal tribunal. The Court further observes that there is plentiful,

and mutually corroborative, information suggesting that General Mladié,indicted by the ICTY for
genocide, as one of those principally responsible for the Srebrenica massacres, was on the territory
of the Respondent at least on severa! occasions and for substantial periods during the last few years
and is still there now, without theSerb authorities doing what they could and can reasonably do to

ascertain exactly where he is living and arrest him.

The Court thus finds that it is sufficiently established that the Respondent failed in its duty to
co-operate fully with the ICTY. It concludes that this failure constitutes a violation by the

Respondent of its duties under Article VI of the Genocide Convention.

The question of responsibility for breach of the Court's Orders indicating provisional measures

Finally, the Court finds that in respect of the massacres at Srebrenica in July 1995, the
Respondent failed to fulfil the obligations indicated in the Court's Order of 8 April1993 and
reaffirmed in its Order of 13 September 1993 to take ali measures within its power to prevent
commission of the crime of genocide and to ensure that any organizations and persans which may

be subject to its influence do not commit any acts of genocide.

The question of reparation

Having made its findings, the Court turns to Bosnia and Herzegovina' s request for
reparation. With respect to the violation of the obligation to prevent genocide, the Court finds that,
since it has not been shown that the genocide at Srebrenica would in fact have been averted if the
Respondent had attempted to prevent it, financial compensation for the failure to prevent the

genocide at Srebrenica is not the appropriate form of reparation. The Court considers that the most
appropriate form of satisfaction would be a declaration in the operative clause of the Judgment that
the Respondent has failed to comply with the obligation to prevent the crime of genocide.

As for the violation of the obligation to punish acts of genocide, the Court finds that a
declaration in the operative clause that the Respondent is in breach of the Convention and that it
has outstanding obligations as regards the transfer to the ICTY of persans accused of genocide

would be appropriate satisfaction.

Finally, with regard to the breach of the Court's Orders indicating provisional measures, the
Court decides to include in the operative clause a declaration that the Respondent has failed to
comply with the Court's Orders indicating provisional measures.

Composition of the Court

The Court was composed as follows: President Higgins; Vice-President Al-Khasawneh;

Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepulveda-Amor,
Bennouna, Skotnikov; Judges ad hoc Mahiou, Kreéa; Registrar Couvreur. - 8 -

Vice-President Al-Khasawneh appends a dissenting opinion to the Judgment of the Court;

Judges Ranjeva, Shi and Koroma append a joint dissenting opinion; Judge Ranjeva appends a
separate opinion; Judges Shi and Koroma append a joint declaration; Judges Owada and Tomka
append separate opinions; Judges Keith, Bennouna and Skotnikov append declarations;
Judge ad hoc Mahiou appends a dissenting opinion; Judge ad hoc Kreéa appends a separate

optmon.

A summary of the Judgment appears in the document "Summary No. 2007/2", to which
summaries of the declarations and opinions are annexed. In addition, the press release, the
summary and the full text of the Judgment can be found on the Court's website (www.icj-cij.org).

Information Department:

Mrs. Laurence Blairon, Secretary ofthe Court, Head ofDepartment (+31 (0)70 302 2336)
Messrs. Boris Heim and Maxime Schouppe, Information Officers (+31 (0)70 302 2337)
Ms Joanne Moore, Assistant Information Officer (+ 31 (0)70 302 2394)