## Facts

- Bosnia and Herzegovina and the Federal Republic of Yugoslavia (later Serbia and Montenegro; treated as Serbia for the merits judgment) were parties to the 1948 Genocide Convention during the relevant period.
- Bosnia brought proceedings in 1993 alleging that Serbia was responsible for genocide and related acts during the 1992–1995 armed conflict in Bosnia and Herzegovina.
- Bosnia alleged genocide against the Bosniak (Bosnian Muslim) group across Bosnia, and specifically alleged that more than 7,000–8,000 Bosniak men and boys were killed at Srebrenica in July 1995 by Bosnian Serb forces.
- In 1993, the Court indicated provisional measures ordering both parties to take all measures within their power to prevent genocide.
- In 1996, the Court rejected jurisdictional and admissibility objections, holding it had jurisdiction under Article IX of the Genocide Convention.
- On the merits, the Court assessed whether genocidal acts occurred, whether such acts were attributable to Serbia under the law of State responsibility, and whether Serbia breached independent duties to prevent and punish genocide, including cooperation with the ICTY.

## Issues

1. Whether genocide, as defined by Article II of the Genocide Convention, occurred in Bosnia and Herzegovina, including at Srebrenica.
2. Whether acts of Bosnian Serb forces were attributable to Serbia such that Serbia incurred State responsibility for committing genocide or other prohibited acts (including complicity, conspiracy, or incitement).
3. Whether Serbia breached the Genocide Convention’s independent obligations to prevent genocide (Article I) and to punish genocide and cooperate with an international criminal tribunal (Article VI).
4. Whether Serbia failed to comply with the Court’s 1993 provisional measures orders.
5. What remedies, if any, were required, including declarations, assurances of non-repetition, cooperation obligations, and compensation.

## Decision

- The Court confirmed jurisdiction under Article IX and rejected renewed challenges, treating earlier determinations as binding.
- The Court held that the July 1995 Srebrenica killings constituted genocide under Article II because they were committed with intent to destroy the Bosniak group in part.
- The Court found that Bosnia did not prove genocide, to the required standard, in other regions of Bosnia beyond Srebrenica, notwithstanding widespread atrocities and “ethnic cleansing.”
- The Court held Serbia did not commit genocide, conspire to commit genocide, or directly and publicly incite genocide, and that genocide at Srebrenica was not attributable to Serbia as an act of its organs or persons acting under its effective control.
- The Court held Serbia was not complicit in genocide because the necessary proof of knowledge and genocidal intent for complicity was not established.
- The Court held Serbia breached Article I by failing to take all measures within its power to prevent the Srebrenica genocide, given its capacity to influence Bosnian Serb leaders and the serious risk of genocide.
- The Court held Serbia breached Article VI by failing to punish genocide through full cooperation with the ICTY, including by failing to arrest and transfer Ratko Mladić.
- The Court held Serbia violated its obligations to comply with the 1993 provisional measures requiring it to prevent genocide and to ensure persons under its influence did not commit genocidal acts.
- The Court declined to award monetary compensation, finding the necessary causal link between the failure to prevent and specific additional harm was not shown, but ordered Serbia to meet its continuing obligations to punish and cooperate.

## Legal Principles

- Genocide under Article II requires proof of prohibited acts plus specific intent (dolus specialis) to destroy a protected group, in whole or in part; large-scale violence or “ethnic cleansing” does not by itself establish genocidal intent.
- A State may, in principle, commit genocide as a matter of treaty obligation and general international law, but State responsibility for commission requires proof meeting a very high evidentiary standard.
- For attribution of non-state or separate entities’ conduct to a State, the Court applied an “effective control” test over the specific operation, rejecting broader control standards as sufficient for attribution.
- Complicity in genocide requires proof that the State provided aid with knowledge that it would be used for genocide and with the requisite connection to genocidal intent; substantial support alone is insufficient absent the required mental element.
- The duty to prevent genocide in Article I is an obligation of conduct, triggered when a State knows or should normally have known of a serious risk of genocide; the required measures depend on the State’s capacity to influence the perpetrators and the circumstances.
- Article VI entails an obligation to punish genocide, including cooperation with a competent international criminal tribunal; failure to arrest and surrender indictees can constitute a breach independent of liability for committing genocide.
- Noncompliance with indicated provisional measures is a separate international wrong, even where ultimate merits findings differ from allegations of direct commission.

## Conclusion

The Court held that genocide occurred at Srebrenica but was not attributable to Serbia as a matter of commission, conspiracy, incitement, or complicity; Serbia nonetheless incurred responsibility for failing to prevent the Srebrenica genocide, for failing to punish genocide through full cooperation with the ICTY (including surrender of Ratko Mladić), and for breaching binding provisional measures, while compensation was denied for lack of proven causation.


Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v. Serbia & Montenegro), Judgment, 2007 I.C.J. 43