## Facts

- Bosnia and Herzegovina filed an application in 1993 alleging that the Federal Republic of Yugoslavia (later Serbia and Montenegro) violated the 1948 Genocide Convention during the Bosnian war.
- Bosnia alleged genocide and related Convention violations across Bosnia and Herzegovina, asserting direct responsibility of the respondent and responsibility based on the conduct of Bosnian Serb forces and authorities (including the VRS and Republika Srpska).
- The ICJ indicated provisional measures in 1993 and later rejected preliminary objections, confirming jurisdiction under Article IX of the Genocide Convention.
- After Montenegro’s 2006 independence, the Court treated the Republic of Serbia as the respondent for purposes of the merits judgment.
- The case focused on whether genocidal acts occurred (especially the July 1995 Srebrenica massacre) and, if so, whether those acts were attributable to Serbia or otherwise engaged Serbia’s duties under the Convention.
- Bosnia also alleged Serbia failed to prevent genocide and failed to punish genocide by not cooperating with the ICTY, including not arresting and transferring indicted individuals such as Ratko Mladić.

## Issues

1. Whether the Court had jurisdiction under Article IX of the Genocide Convention and whether Serbia was the proper respondent at the merits stage.
2. Whether genocide, as defined in Article II of the Genocide Convention, occurred in Bosnia and Herzegovina, including at Srebrenica and elsewhere.
3. Whether genocidal acts by Bosnian Serb forces were attributable to Serbia under international law governing state responsibility.
4. Whether Serbia was responsible under the Convention for committing genocide, conspiracy, direct and public incitement, or complicity.
5. Whether Serbia breached the Convention’s obligations to prevent genocide and to punish genocide, including by failing to cooperate with the ICTY and comply with provisional measures.

## Decision

- The Court held its jurisdiction under Article IX was settled and could not be reopened, and it proceeded with Serbia as the respondent.
- The Court found that genocide occurred at Srebrenica in July 1995, committed by Bosnian Serb forces (VRS), including the killing of more than 7,000 Bosniak men and boys.
- The Court did not find that Serbia committed genocide through its own organs, nor that the Srebrenica genocide was attributable to Serbia; it also found Serbia not responsible for conspiracy, incitement, or complicity in genocide.
- The Court held Serbia breached its obligation to prevent genocide because it had influence over the Bosnian Serb perpetrators and failed to take steps within its power despite a serious risk of genocide.
- The Court held Serbia breached its obligation to punish genocide by failing to cooperate adequately with the ICTY, including failing to transfer Ratko Mladić, and by failing to comply fully with the Court’s provisional measures.
- The Court declined to order monetary reparations and treated declaratory relief and continuing compliance obligations as the principal remedy.

## Legal Principles

- The Genocide Convention imposes obligations on states, including duties not only to punish genocide but also to prevent it; state responsibility may arise independently of individual criminal convictions.
- Genocide under Article II requires proof of specific intent (dolus specialis) to destroy, in whole or in part, a protected group; large-scale atrocities may constitute other international crimes absent proof of that intent.
- Allegations of genocide require a high evidentiary threshold; the Court may rely heavily on international criminal tribunal findings while making its own determination of state responsibility.
- Attribution of conduct by non-state or separate entities to a state requires a stringent control test over the specific operations giving rise to the breach (effective control), not merely extensive support or general influence.
- The duty to prevent genocide is a due diligence obligation triggered when a state knew or should have known of a serious risk of genocide and had capacity to influence the perpetrators; breach may exist even without attribution of the underlying genocidal acts.
- The duty to punish genocide includes cooperation obligations relevant to prosecution, including arrest and transfer of indicted suspects to competent international criminal tribunals.

## Conclusion

The ICJ confirmed that genocide occurred at Srebrenica but held Serbia was not legally responsible for committing, conspiring to commit, inciting, or being complicit in that genocide because the acts were not attributable to Serbia under the applicable attribution standard. The Court nonetheless found Serbia internationally responsible for failing to prevent the Srebrenica genocide despite its influence and awareness of serious risk, and for failing to punish genocide through insufficient cooperation with the ICTY, ordering primarily declaratory relief and continued compliance rather than monetary damages.


Application of Convention on Prevention & Punishment of Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), 2007 I.C.J. 43 (Feb. 26)