Supplement to the Application and to the Second Request for the Indication of Provisional Measures submitted by the Government of the Republic of Bosnia and Herzegovina

1
TO: The Judqesr~f the International Court of Justice
The Peace Palace,
The Hague,
The Netherlands.

'.

Amsterdam, 25 August 1993

YOUR EXCELLENCIES:·

I hereby supplement and amend our March 20 Application
and, with reference to paragraph 3 of Article 74 of the Rules
of Cou~t, Sectïon c of our 27 July 1993 request for an

indication of provisional measures by filing with the court
the attached Memorandum of Law on the 11Imputability 11 of the
Respondent for the ~onduct of Serb ~ilitary, paramilitary,
militia, and irregular armed units operating in the Republic
of Eosnia and Herzegovina.

Please accept, Excellencies, the renewed assurance of my
highest consideration.

Professer Francis A. Boyle
General Agent for the Republic of
Bosnia anà Herzegovina before the
International Court of Justice

Attachment IMPUTABILITY

SUM:t.1ARY OF ARGUl'>ŒNT

Vugos;I.avia is i-eisponsiblê for the act:î.of g·enocide and th~
war crimes co;;âtted by the Bosnian S~~ ~b ore in sBosnia­
Her:z:egovina ~ The liabili ty_.of Yugosravia ils based on tw~-~~pa_rate
legal .principles. tit.at, ,...Yugoslavnc is~liabl ender tllë gene:r:al 1
law of state respqns,l:;bility, as reflected in the Genocide
Convention and in~hufrianita aw ,n for acts committed by the
recipients o:f its aid, since it was aware that the aid -was be.ing
used wrongfullyA ·Second, Yuqoslavia is liable because it adopted
as its own the wrongful acts of the recipients of its aid.

RESPONSIBILITY, EVENWHERETHE INTERNATIONALLYRAL WRONGFULSTATACTS ARE
f'OMMITTED BY STATES OR PRIVAT! PARTIES NOTACTINGAT ITS BEHEST.

( The preC'ise issue of imputability before the Court is one of
1:irst impression. This case raises the question of the ·
responsibility of a state for military and financial support to a
group of co-nationale in a neighboring state who are carrying out
genocide and war crimes. This is a question·different from
attribution issues that have ·previously come before the Court. It
is also ·different from the situations of attribution to which the
International Law Commission's draft articles on state
responsibi1ity are adc,f.ressed. Draft articles on State
responsibility, in I.L.C. Report to General Assembly, U.N.
General Assembly, 35th session, Supplement No. 10, p. 59, U.N.
Doc. A/35/10 (1980), reprinted in I.L.C. Yearbook 1980,·vo1. 2,
p. 30, U.N. Doc. A/CN.4/SER.A/l980/Add.1 (pt. 2).

.· althoughe theyC.do not provideicles a directlevsolution.o tCertainsenof these,
articles are as follows. (1) A state is responsible, according to
the I •L.c.., for the acts of persons or groups who act "in tact"
( n behalf of that state, even if they are not in a formal sense
· ~fficials or delegates of that state. I.L.c. Article B. (2) A
state, however; is not responsible for the acts of parsons who do
not act on its behalf. I.L.C. Article lL (3} A state is
responsible for the acts of another state over which it exercises
powers with respect to that state in the field of activity.in
which the second state is acting. This is called indirect
responsibil~ty ..L.c. Article 28. (4) A state is responsible for
aid or assistance to another state if rendered for the commission
of an internationally wrongful act. I.L.C. Art~cle 27.

Another principle not d!rectly relevant relates to moral
approbation of illegal acts. The I.L.c. draft articles are silent
on the responsibility ot a state for acts carried out by another
state or non-state grouping where no aid or assistance is
provided, but where the state gives moral approbation. In this
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situation a state is not, under customary law, responsible. 'l'hus,
in thé Tehran case, this Court said that Iran could not be
responsible on the rationale that it may have approved of the
hostage-taking. Ca~e concerning United States diplomatie and
Consular Staff in Tehran (U.S.A. v. Iran), 24 May 1980, 1980
, I •C. J. p. 30, !59 .

The present case falls outside all the above-mentioned
situations. The pre~nt situation falls in between the two -
traditional categories of responsibility, namely, (1)
responsibility of a state for its own acts; (2) responsibility of
a state for acts of another state. However, the principles
developed by the I.L.c., and by this Court, are relevant to
devising a standard here. Clearly, where a state facilitates
internationally wrongful conduct by a group that is not a state,
responsibility must rest on that state.

T A STATE IS RESPONSIBLE FOR PROVIDING MATERIALASSISTANCE FOR
qE COMMISSION OF UNLAWFULACTS.

The basic notion of state responsibility is that a state is
responsible fo.r internationally wrongful acts. International
responsibility arises for an act or omission attriputable to the
state, where the conduct violates an international obligation of
the state. I.L.C. Article 3.

Where a state gives material assistance to a non-state group
that it knows to be carrying out acts that violate
internationally protected rights, the state is responsible under
Article 3. Its conduct in this situation is an "act." The act is
the provision of material aid. If the state is aware that the
group is carrying out, as a matter of policy, acts that are
internationally wrongful, then state is providing ass~stance "for
the commission'' of internationally wrongful acts. Al though the
state is not committing the internationally wrongful acts itself,
it is responsible for the aid that facilitates them.

The I.L.C. stated this principle where the recipient of the
aid is another state. A donor state is responsible for giving aid
to another state for the commission of an internationally
wrongful act. r.L.C. ,Article 27. The ~rticles did not explain
what it might mean to give the aid "tor the commission." However,
the meaning of that phrase is releva-nt herè., because the
principle of liability is similar.

III. ASTATE IS RESPONSIBLEFORTHE WRONGFUA LCTSOF ~N AID
RECIPIENT, WHE~E THE STATE IS AWARETHAT THE RECIPIENT IS USING
THE AID WRONGFULLY.

For liability to obtain, it is not required that the aid~
giving state act with a purpose that the recipient should commit
the internationally wrongful act. Views expressed within the

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141005

r.L.c. and the practice of atates indicates that liability
aid.cheJudge Aga, thene statI.L.c.is rapporteurhe wron state responsibility,
cited as a situation that would entail responsibility the act of
Germany in allowing 1the United States to use air bases in Germany
_to a launch military intervention in Lebanon in 1958. R. Ago,
seventh Report on State Responsibility, I.·L.c. Yearbook 1978, .
vol. 2,. pt. l, p. 31, at p. 59, U.N. Doc. A/CN.4/SER •.A/1978/Add.l
{pt. 1). There, no ey.idence was available th~t Germany desired a
u.s. intervention in·Lebanon.

Referring to this kind of situation, namely that in which a
state with base rights commits internationally wrongful acts from
the bases; one I.L.C. member, Endre Ustor, said that
responsibility arises "when a State should have known in advance
organs itof anotherry Stated badmittedor to that unterritory."purpoSummaryy the
~cords of 1313th mtg., I.L.C. Yearbook 1975, vol. l, p. 44, ~13,
N. Doc. A/CN.4/SER.A/l975.

The u.s.s.R. charged Germany and Turkey with responsibility
when the United states launched balloons from their territory for
overflights of the Soviet Union, ~ithout. soviet permission. Judge
Ago noted that in this situation the responsibility of Germany
and Turkey was "based on passive conduct or toleration on the
part of their organs." Summary Records of the 1313th meeting,
I.L.C. Yearbook 1975, vol. lj p. 42, ~4, U.N. Doc.
A/CN.4/SER.A/1975. That characterization suggested that
responsibility would lie even if Germany and Turkey did not wish
for the Unlted States to violate Soviet airspace.
The I.L.C., in a report on Article 27, aaid that "it is not
5ufficient for it to be possible for aid or assistance" provided
without a purpose to promote the internationally wrongful act "to
be used by the recipient State for unlawful purposes, or for the
State providing aid or assistance to be aware of the eventual
( ·ossibility of such use." I .L.C. Report to General Assembly,
".A.O.R. 33d session, Supplement No. 10, p. 255, U.N. Doc.
A/33/10 (1978), reprinted in I.L.C. Yearbook 1978, vol. 2, p.
104, U.N. Doc. A/CH.4/SER.A/1978/Add.l (pt. 2). Thus, 1t is not
enough if there is only a possibility of wrongful use. However,
if the aid-gi~ing state is aware that the aid will be used
wrongfully, then responsibility attached, as is impliea by this
statement of the I.L.C. See John Quigley, "Complicity in
Responsibility," Law:BritishDirYear Book of International of State Law, 1986, p.
77, at pp. 107-125.

A similar standard applies where the aid recipient is a non­
state groupinq. It would defeat the purposes of the law of state
responsibility to permit a state to violate internationally
protected rights by g!ving material ass1stance to a non-state

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grouping that it understands will commit unlawful acts. This
court indicated in both the Tehran case and in Nicaragua v.
u.s.A. that a state can be responsible ~here the actual
perpetrators of the internationally wrongful acts are parties
other than states. tn the Tehran case, it found Iran responsible
on the grounds that Iran had made the acts of private hostage­
takers its own (on which see more fully below), and in Nicaragua
"contras". on theundqroy.nds.A.that itspprovided instruction of tin ·
assassination to the:' .contras .. (on which see more fully below).

IV. THE ABOVESTANDARD APPLIES UNDERTHE GENOCIDECONVENTION."

Responsibility in the case of awareness that the forces
being aided are committing unlawful acts is also found in the
article of the Genocide Convention that prohibits complicity in
genocide. Genocide convention, Article 3(e). Here too liability
~s based on providing aid in the face of awareness that it is.
üng used unlawfully. Since the notion of complicity is borrowed
.rom dornes tic law, that is where the content of complici ty as
found the Genocide convention must be found. In domestic law,
providing material means.with knowledge of unlawful use
constitutes complicity. ·Thus, the French Penal Code defines as an
accomplice "those who procure arms, instruments, or any other
means that were used for the act, knowing that they were to be so
used." France, Penal Code 1810, Article 60(2). Similarly, the
"willing pethat canothersideperson ashouldccocommit a prohibited either act, or
reconciling himsel! to it, provides him the mean~." Poland, Penal
Code 1969, Article 18(2). The same rule is followed in the United
states by case law jurisprudence. R. Perkins & R. Boyce, Criminal
Law (3d ed. 1982), p. 747.

This rule is ·also followed in Yugoslav penal law, which
defines "aiding'' to include "the supply of tools of crime," and
~n accomplice as one "who intentionally aids." Yugoslavia, Penal
:ode 1951, Article 20. The penal code says that a persan acts
ntentioilally when he "was conscious of his deed and wanted its
commission, or when he was conscious that a prohibited
consequence might result from his act or omission and consented
to its occurring." Yugoslavia, Penal· Code '1951, Article 7. See
similar provisions in Yugoslavia 1 Penal Code 1976, Article·l3
(intent), Article 24 (complicity).

Thus, when the Genocide Convention employs the term
"complicity, '.'liability attaches for one who provides material
means to those committing genocide and who is aware that the
no differentmeans from thatbe uwhich tthe International. Law Commission,d ias
noted above, has said is required under customary international
law. for complicity by one state in the act of another state.
Judge Aga has stated that 1COmplic:ity," ~s defined by the I.L.C.,

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"may, for example, also take the form of provision of weapons or
Ago, Seventhlies Reportssion StatenothResponsibility,o commir.L.c.cidYearbook ~.
1978, vol. 2, pt •. 1, p. 31, at p. 58, U.N. Doc.
A/CN.4/SER.A/1978/Add.l {pt. 1). This same standard applies, as
. indicated above, in the case of assistance by a state to a non­
'state grouping that is conunitting violations of the laws of
warfare.

V. THE ABOVE STANOARn APPLIES UNDER HUMANITARIAN LAW.

Under the four 1949 Geneva conventions, as stated in common
Article 1, a state party has an obligation to ensure respect for
the conventions in all circumstances. This means that if a state
is aware ~hat a convention norm is being violated, it must take
reasonable measures to endeavor to stop the violation. Security
c'•bligationesoistiunrel~ted1, Uto any connection1 between0).theThistate in
uestion and the party committinç the violation, but it clearly
'PPlies when the state is providing rnaterial aid to the party
that is violating the Geneva conventions.

In Nicaragua v. u.s.A. 1 this Court noted a state's
responsibility under common Article 1 and said that it applies
when the acts in violation of the laws of warfare are cornmitted
in a civil·war, to which common Article 3 applies. The Court made
this reference to common Article 1 in its discussion of
encouragement by the United States to the "contras" to violat&
the laws of warfare. 1986 I.c.J. ~220. The Court said that a duty
to "ensure respect" applies even when the military conflict is a
onlyl from common Article obligat1 but as wellsurefrom customary·law.rives 1986t
r.c.J. ~220.

rn Nicaragua v. u.s.A., the Court did not. find as a fact
that the u.s.A. was aware of violations being committed by the
'Hcaraguan ttcontras" when it gave them material assistance. In
( ·he present case, however, such an awareness.is, as will be shown
below, indicated by the facts and by statements of officials of
both Yugoslavia and the Bosnian Serb forces. Thus, under the
principles espoused by this court in Nicaragua v. u.s.A.,
Yugoslavia is responsible for failing to "ensure respect" by the
Bosnian serb forces for the laws of warfare. A state that gives
material aid, aware that the aid is used to violate the laws of
warfare, fails to nensure respect" t.or the laws of warfare.

the court oblisaidon in Nicaraguaure v.reu.s.A., the prconflict eveiswhinternal.as
The conflict in Bosnia-Herzegovina, however, bears an
international character. such is the conclusion of the Security
council's Commission of Experts, who said that after analyzing
the· situation it had decided to apply "the.law applicable in

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international armed conflicts to the entirety of the armed
conflicts in the territory of the former Yugoslavia. 11 Interim
Report,, op. cit.,· ![45. Thus, the applicability of common Article
1 is even more clear here than it was in Nicaragua v. u.s.A.
\.:
VI. YUGOSLAVXA RAS PROVIDEDMATERIALASSISTANCETO THE BOSNIAN
SERB FORCES.

Under the principles of liability described above,
Yugoslavia is respo~sibl for the genocide and law of war
violations committed by the Bosnian Serb forees in Bosnia­
Herzegovina. Yugoslavia, by its own admission, has provided
substantial military aid to the Bosnian Serb forces, and, as will
be shown in the next section, in so doing it has been aware that
the Bosnian serb forces were committing atrocities against non­
serb populations.
Yugoslavia freely_ acknowledges its material aid to the ,
iosnian Serb forces. ln a communiqué, the government of serbia
::>tated that it "firmly believ[ed] that a just battle for freedom
and the equa.li ty of the Serbian people is being conducted in the
Serb Republic~ 11 and ·thus that "the Republic of serbia has been
unreservedly and generously helping the Serb Republic."
Communiqué Issued After the Session of the Government of the
Republic of Serbia, Emphasis added.

Serbian President Slobodan Milosevic was quoted by Tanjug
press agency as stating on 11 May 1993: "In the past two years,
the Republic of serbia, by assisting Serbs outsi9e Serbia, has
·forced its economy to make massive efforts and its citizens to
make substantiel sacrifices •••• Most of the assistance was
sent to people and fighters in Bosnia-Herzegovina." British
Broadcasting Corp., Summary of World Broadcasts, 13 May 1993,
Part 2 Eastern Europe, C.l Special Supplement, p. EE/1687/Cl.
When the Yuqoslav army withdrew from Bosnia~Herzegovin ia
1.992, it lett intact ma.ny Serb-staffed units to become part of
( che Bosnian Serb forces. "Remnants of JNA (Yugoslav People's
Army) Said to Become 'Serb Army,'" Belgrade TANJUGDomestic
Service, 1223 GMT, 7 May 1992, translated into English in Foreign
Broadcast Information Service, 8 May 1992, pp. 18-19.
''Disposition of JNA Presents P:r:oblems," Belgrade Borba, 6 May
1992, p. 9, translated into English in Foreign Broadcaat
Information Service, 14 May 1992, pp. 26-27.

Yugoslav President Dobrica Cosic, addressing the Yugoslav
federal assembly, said that the Yugoslav army left w1th the
Bosnian Serb forces substantial quantities of military equipment,
including three hundred tanks, 231 a~tillery pieces, and a large
quantity of infantry11 weapons and ammunition. "President Addresses
Federal Assembly, Belgrade Radio Belgrade Network, 0935 GMT14

6 25/08 '93 17:45 '5'31 20 6203559 BS,vdB&vdPadvo ~009

July 1992, translated into English in Foreign Broadcast
Information Service, 15 July 1992, pp. 33-37.

Bosnian Serb military leaders have acknowledged the receipt
of armaments· from Ypgoslavia. Vojislav Seselj, a leader of the
Chetniks {Bosnian serb military force), ans~ered in the
affirmative when asked by a reporter whetner sorne .9f his weapons
carne from the Yugos!av army. "Chetnik Leader Discusses New
Serbian Borders," Der Spiegel (Haml':lurg), 5 August 1991, pp. 124-
126, translated int~ English in Foreign Broadcast Information
Service; 5 August 1991, pp. 51-53.

Yugoslavia has gone well beyond the moral approbation this
court found on Iran•s part regarding the actions of the persons
who took hostages at U.S. diplomatie facilities in Tehran. Both
Yugoslavia and Iran expressed approval of the actions of the
private groupings. But whereas Iran did not materially assist the
~ostage-takers Y,ugoslavia has, as indicated, provided materi~l
~sistance ,nd on a large scale.

SERB FORCEs· IN COM:SAT IN BOSNIA-HERZEGOVINA.NAL ASSISTANCE TO BOSNIAN

In addition to rnaterial aid, Yugoslavia has lent the aid of
its roilitary units in.support of the military operations of the
Bosnian Serb forces in Bosnia-Herz·egovina. Yuqoslav army uni ts
situated in Serbia, but just across the River Drina from Bosnia­
Herzegovina, have provided direct operational assistance to the
Bosnian Serb forces during combat. "Federal Army Supporting .
Bosnian Serbs," Belgrade Politika, 26 January 1993, p. 8,
translated into English in Foreign Broadcast Information service,
27 January 1993, pp. 46-47. Belgrade Tel~vision bas filmed these
operations, which have included flights by Yugoslav military
airplane$ and helicopters. Yugoslav units have entered Bosnia­
Herzegovina duiing these operations. "Yugoslav Army Offensive
Across Drina Detailed," Zagreb Globus, 12 March 199.3, pp. 9-10,
translated into English in Foreign Broadcast Information Service,
( 6 April 1993, pp. 41-43. The Yugoslav air force has flown
missions both for reconnaissance and for combat in Bosnia­
Herzegovina. "Sarajevo Suburbs under Attack; Poison Gas
Suspected," Zagreb Radio Croatia Network, 1100 GMT, 23 June 1992,
translated into English in Foreign Broadcast Information service,
24 June 1992, p. 23.

FORCES. YUGOSLAVIA HAS HELPEDORGANIZETHE BOSNIANSERB MILITARY

General Ratko Mladic, commander of the Bosnian Serb forces,
is a career officer in the Yuqoslav People's Army who was
reportedly selected for his role in the Bosnian forces by Serbian
Preside.nt Milosevic. 1Mladic scorns Western Th:reats 1" Fina.ncial
Times, 16 April 19931 p. 2. The Yugoslav army selected and

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trained certain Serbian officers from its ranks and dispatched
·them for duty with the Bosnian serb forces. "FRY Officers
Reportedly heading for Bosnia," Sarajevo Radio aosnia-Herzegovina
Network, 1100 GMT, 29 January 1993, translated into English in
Foreign Broadcast Information service, 29 January 1993., p. 30.
Thus, in addition to providing arros and equipment, Yugoslavia has
·participated in forming the officer corps of the Bosnian Serb
forces~

~ YUGOSLAVIA IS AWARE 'l'HAT THE BOSNIAN SERB FORCES USE lTS
MATERIALAND OPERATIONALASSISTANCE TO COMMITGENOCIDE ANDTO
VIOLATE THE LAWSOF WARFARE.

Yugoslavia is aware of the aims of the Bosnian serb forcés
and of the internationally wrongful means by which it achieves
those aims. The practices of the Bosnian Serb forces have been
extensively reported in the media and have been the subject of
action by the action of the United Nations security Council. The
;ecurity Council has instituted a procedure for the convening of
~ribunal o prosecute for breaches of humanitarian law in the
Bosnia-Herzegovina conflict. By resolution, the Security council
established a commission of experts to analyze the tacts and to
prepare for such proceedings. U.N. Security Council Res. 780
(1Q92). In a subsequent resolution, the Security Council
specifically asked the commission to investigate the practice of
"ethnie cleansing.•• U.N. Security council Res. 787.

In an interim report, the commission told the security
Council that the material collected to date "reveals that large~
scale victimization has taken place ... Interim Report of the
Commission of Experts Established Pursuant to security Council
Resolution 780 (1992), 26 January 1993, ~9. In its report the
commission referred specifically to a report it had received of ~
mission by the Conference on Security and cooperation in Europe
to detention camps in Bosnia-Herzegovina, and a mission to
Bosnia-Herzegovina by the Moscow Human Dimension Mechafiism of the
s.s.c.E. The conunission also referred to findings of the European
.;olTililun.ity's Investigating Mission into the Treatment of Muslim
Women in the former Yugoslavia. Interim Report, op. cit. ~12.
This latter report was also noted "with grave concern" by the
U.N. Security Council in a 1993 resolution. In that resolution
the Security council decided to·establish a war crimes tribunal
for trial of breaches of international humanitarian law ''in the
terri tory of the former Yugoslavia since 1991. '' It repeated its
criticism of "ethnie cleansing 11and made a determination that
this practice constituted "a threat to peace and security." U.N.
Security council Resolution 808, U.N. Doc. S/RES/808 (1993).

That Yugoslavia understood that Resolution 808 was directed
at violations committed by the·Bosnian Serb forces in Bosnia­
Herzegovina is ind1cated by the reaction to the resolution of
Momcilo Grubac, Human Rights Minister of Yugoslavia. Mr Grubac

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criticized Resolution 808~ stating, "There is an international
hysteria about the events in Bosnia-Herzegovina. The
international public is not properly informed about what is going
on there. There are many prejudices and prejudged stands
regarding the guilt,of one party and the innocence of the other
parties involved in the conflict. '' "Federal Republic of
'Yugoslavia: F.R.Y. Human Rights Minister on Pitfalls of U.N.
Resolution on War Crimes Tribunal," Yugoslav Telegraph Service
(English), 2343 GMT, 23 February 1993, British Broadcasting
Corporation, summarY;:of World Broadcasts, 25 February 1993
(Nexis).

The Security Council's commission of Experts concluded that
"ethnie cleansing" had been carried out 1by rneans of murder,
torture, arbitrary arrest and detention, extra-judicial
executions, rape and sexual assault, confinement of civilian
population in ghetto areas, forcible removal, displacement and
deportation of civilian population, deliberate military attacks
r: threats of attacks on civilians and civilian areas, and wanton
astruction of property." It characterized these acts as 1Crimes
against humanity 11 and as well as ''war crimes. Finally, it said
that "such acts could also fall within the meaning of the
Genocide Convention. 11 Interim Report, op. cit. ~56.

The cited reports, along with many cornpiled by non­
governmental organizations, also cited by the commission, Interim
Report, op. cit. !14, placed blame on the Bosnian Serb forces for
atrocities in Bosnia-Herzegovina. The large number of such
reports compiled by respected international organizations leave
no room for doubt that Yugoslavia is aware of atrocities being_
committed by the recipients of its material aid and operational
assistance.

Yugoslav officials have indicated that they are aware of
that Yugoslav aid is facilitating un!awful actions by the Bosnian
Serb forces. In the above-quoted atatement of 11 May 1993,
~erbian President Milosevic said, "Serbia has lent a great, great
leal of assistance to the Serbs in Bosnia. OWing to that
":tssistance they have achieved most of what they wanted." This
statement indicates awareness that the Bosnian Serb forces were
using Yugoslav aid to drive other nationalities from territory
over which the Bosnian Serh forces sought to exert hegemony.

Yugoslavia is aware that the Bosnian Serb forces seek to
take the bulk of the territory of Bosnia-Herzegovina 1 and to
drive out Bosnian Moslems resident there. Bosnian serb leader
Radovan Karadzic has claimed two thirds of Bosnia-Herzegovina's
territory for an anticipated Bosnian Serb state. "Serbian Leader
Lays Claims to Bosnian Territory," Vienna Kurier 1 27 February
1992, p. 3, translated into English in Foreign Broadcast
!~formation Service, 27 February 1992, p. 34.

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Regarding Yugoslavia's aims with respect to Bosnia­
Herzegovina, General Zivota Panic, Chief of the General Staff of
Yugoslavia, cornplained that Western countries were ··trying to take
away serbia •s "Lebensraum" in .Bosnia. ''Serbs Will F'ight to Bitter
End, General says," \Reuters (dateline Bonn)·, 24 April 1993.
Finally, Yugoslavia is aware of the centrality of its
assistance to the effort of the Bosnian serb forces. The quoted
statement of President Milosevic that those forces had achieved
their goals ''owing' tb" Yugoslavia indicates Yugoslavia' s
awareness that its material aid facilitated the commission of
atrocities by the Bosnian Serb forces.

X. YUGOSLAVlA'SAID TO THE BOSNIANSERB FORCESDIFFERS IN
MATERIALRESPECTS FROMTHE U.S.A. AID TO THE NICARAGUAN CONTRAS
THAT WAS AT ISSUE IN NICARAGUA V. U.S .•A.

Under principles of liahility followed by this Court in
Lcaragua v. u.s.A., Yugoslavia is responsible for the atrocities
.,.ommitted by the Bosnian Serb forces. In Nicaragua v. U.S.A.,.
this Court said that even if the United States supplied the·
"contras," and even if it exercised some direction ov.er their
responsiblelectifor actsd mthetar"contras"nninmight nconunit in violations not of
the laws of warfare. Nicaragua v. U.S.A., ~115. There was no
evidence there of awareneas by the u.s.A. that the "contras"
would commit such acts. Such awareness was found only with
respect to the assassination of Nicaraguan government officials,
because of a manual written by the_u.s.A. that sugqested such
assassination. For the writing of the manual, the Court held the.
United Sta.tes responsible. 1986 r.c.J. 1{292(9).

The facts in the present case differ from those in Nicaragua
v. u.s.A. in three critical respects. First, Yugoslavia and the
Bosnian Serb forces make no secret of their close collaboration
and of the fact that they share a common aim in Bosnia­
( '-~erzegovin Yaugoslavia readily acknowledges both that it
c-•rovides· material assistance and that the purpose of the
assistance is to promote the stated aim of the Bosnian Serb
forces. That aim is to take territory from the Bosnian Muslims in
order to establish a Bosnian Serb state that would comprise two~
thirds of the territory of Bosnia-He11egovina. "Serbian Leader
1992,Clap.s 3, translatedn intoitoEnglish Vin Foreignrier,Broadcastbruary
Information service, 27 February 1992, p. 34. The aim is carried
out through driving out-civilian populations through ter.ror
created hy the commission of atrocities.

In Nicaragua v. u.s.A., the United States alternatively
denied the· fact of the material assistance and denied that it
gave the assistance with the aim (overthrow of the Nicaraguan
government) espoused by the ·"contras·." Here there is no denial

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either of the material assistance or of an espousal of the aims
of the aid recipients.
second, Yugoslavia, at the time of providing material aid,
was aware that the Bosnian Se~b forces were carrying out a policy
.of expulsion that involved both the killing of.members of certain
groups, and other atrocities, as a means to secure their
departure. The fact of such violations was widely disserninated by
the international media and was further known to Yugoslavia ·
throuqh its contacti:with the Bo~nia nerb forces T~his factual
element was-lacking in the Nicaragua v. u.s.A., where the
violations being committed by the "contras" were not so widely
known. This is a critical difference, because it brings
Yugoslavia into responsibility under the criteria outlined above.
Yugoslavia, at the time it provided material assistance, knew
that the Bosnian Serb forces were perpetrating internationally
wrongful acts and provided assistance nonetheless.

Third, whereas the "contras" were a rebel group within a
well defined state, the Bosnian Serb forces seek not to become
stateovein a sector of of Bosnia-Herzegovina•s bat toterritory. The Bosniann
Serb forces call thernselves a state. Even though this state was
not formally constituted or recognized, the Bosnian Serb forces,
representing an aspirant "state," are farther from being a mere
private grouping than were the "contras." Thus, the aid provided
by Yugoslavia is more tantamount to aid to a state than was the
situation in Nicaragua v. U.S.A.

What is required for liability is·the provision of aid with
awareness tha.t i t will be used wrongful.ly. In Nicaragua v.
u.s.A., this Court a.t one point mentioned 11control" as a possible
criterion for liability. However, as Judge Ago pointed out in his
separate opinion in Nicaragua v. U.S.A., it is not necessary, for
responsibility, to establish "control." The Court in its opinion
in Nicaragua v. u.S.A •. had referred to "control" only because
Nicaragua had ass11ted that the United States of America
controll'ed the Contras." Nicaragua v. U.S.A., 1{277. Judge Ago
aptly cautioned in his separate opinion aqainst requiring
"(Judgel"Ago, assepa~ateent opinion),spons!18,itnote 1. Nicara.gua v. u.s.A.

~he Court, to be sure, in its opinion in Nicaragua v.
u.s.A., had not required "control" as a prerequisite for
liability. Had there been compelling evidence of U.S.A. awarene~s
of the atrocities committed by the "contras," the Court would
have had to address that fact.

So long as the criteria indicated ahove are present, namely,
that aid is given with awareness of its wrongful use,
responsibility arises. Yugoslavia was aware that genocide was
being committed, and that the laws o.f warfare as 'defined by the

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141014

Geneva conventions were being violated by the Bosnian Serb
forces, yet it cantinued its aid. In the circumstances, it had
open to it a ready means for stopping the violations, namely, it
open to havit,erYugoslavia madid not take advantage havofg it.hiInsteadns it
,cont1nued its assistance to the Bosnian Serb forces, in orde~, in
the quoted words of President Milosevic, to help the Bosnia Serb
forces.carry out their aim.s.

XI. YUGOSLAVIA, BY t.SPOUSING THE AIMS OF THE BOSNIAN SERB FORCES,
HAS ADOPTEDTHEIR ACTS AS ITS OWN.

As a second and additional basis of responsibility,
Yugoslavia has adopted the acts of the Bosnian Serb forces. In
the Tehran case, this Court held Iran responsible for the acts of
private groups of young persans who occupied various diplomatie
premises of the United States of America in Iran. As the Court
analyzed the facts in .that case, the initial occupations of
diplomatie prem1ses were carried out without the direction or
encouragement of Iran, and thus the initial occupations were not
acts of Iran as a state. However, several weeks after the initial
would remainthe occupiedent untilIrathe UnitedecreStatesid of Americae pturneds
over to Iran for trial the former Shah, and that the majority of
hostages "will be under arrest until the American Government acts
according to the wish of the nation." 1980 I.C.J., p. 34, ~73.

'l'he Court said that this expression of polic·y turned the
private acts into acts of I:ran. "The ~ilitants, authors of the
invasion and jailers of the hostages ,· had now become agents of
the Iranian State for whose acts the State itself was
iriternationally responsible.'' 1980 r.c.J., p. 35, ~74. The Court
arrived at this conclusion even though it did not find any
material assistance by the governrnent to the hostage-takers. The
governrnent of Iran, to be sure, omitted to act positively to free
the hostages, but it did not assist the acts of the hostage­
takers in a material fashion.

In the present case, the quoted statements by governmental
authorities of serbia and Yugoslavia indicate that Yugoslavia
shares the aims of the Bosnian Serb forces. Given its provision
Bosnian anSerbs forces,eneYugoslaviae atrhas adopted ctheirtedactsbyas its
own, just as Iran did of the acts of the hostage-takers.

XII. YUGOSLAVIAIS RESPONSIBLEFOR THE ATROCITIES COMMITTED BY
THE BOSNIANSERB FORCES IN THEIR CAMPAIGN TO REMOVE MEMBERS OF
OTHERGROUPSFROMBOSNIA-HERZEGOVINA.

Under general principles 0f state responsihility, and under
the Genocide Convention and humanitarian law, Yugoslavia is
liable for those atrocities committed by the Bosnian serb !orees

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while Yugoslavia {l) was providing materia! aid, (2) was aware of
the ongoing atrocities, {3) was aware that the aid would
facilitate the commission of these atrocities. Yugoslavia's
internationally wrdngful proacts,n under aidprincipleshe cof staten of
.responsibility. Its liability also rests on its failure ta
"ensure respect" by the Bosnian Serb torees tor the laws of
warfare. Its liability further rests on its complicity with the
Bosnian Serb forcest· as that concept is faund in the Genocide
Convention. In ~dditïon, Yugoslavia is responsible on the grounds
that it adopted the actions of the Bosnian serb forces as its
own.

Increasingly during the twentieth century, the law has come
to recognize that a state that provides aid to a wronqdoer,
whether the wrongdoer be a state or a private party, can be just
as serious a threat to the international legal arder as the state
or private party that directly carries out wrongful acts. This
~ndency was crystallized by the International Law commission, in
its Draft Articles on State Responsibility. If an international
order based on the rule of law is to obtain, liability for aiding
a wrongdoer must be a fir.m principle.
In domestic law, the historical development of liability was
that liability first emerged for direct acts causing harm. Only
later did the notions of accessorial liability come into the law.
Siroilarly in intern.ational law, .first there came an acceptance of
the principle of direct liability, and only later did accessorial
liability come to be recogni~ed. In both domestic law and
international law, this progression is a natural development. The
increasingly sophisticated nature of the la~ as it develops cornes
to encompass more sophisticated types of wrongful behavior.

In the contemporary world, the provision of aid py states to
other states or private 9roupings is a widespread phenomenon. In
th~ many armed conflicte of the late twentieth century, outside
;tates h~ve been prominent as providers of material assistance.
Cf an international legal arder consonant with respect for the
rights of others is to exist, this Court must find liability in
these situations.
The principles enunciated by this Court in the Tehran and
Nicaragua v. u.s.A. cases require a finding of liability in the
present case. The Court has developed a jurisprudence on this
tapie that complements the postulates stated by the International
Law Commission, applying those postulates to complex factual
circumstances. The demands of the international legal order call
for a finding of liability on the part of Yugoslavia for its
facilitation of atrocities by the aosnian Serb forces.

i3