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Brief Fact Summary. Bosnia and Herzegovina (P) brought suit against the Federal
Republic of Yugoslavia (Serbia and Montenegro) (D) in the International Court of Justice
in 1993, on the grounds of violations of the Convention on the Prevention and Punishment
of the Crime of Genocide.
Synopsis of Rule of Law. Under International law, the conduct of any state organ is to
be considered an act of the state, therefore giving rise to the responsibility of the state if
the conduct constitutes a breach of an international obligation of the state
Facts. The republics of Bosnia and Herzegovina (P), Croatia, Macedonia and Slovenia
declared independence when the Socialist Federal Republic of Yugoslavia began to
break up in the early 1990s. this led Serbia and Montenegro to declare themselves the
Federal Republic of Yugoslavia (FRY) (D). A massacre was perpetrated by Serbian forces
on 8000 Bosnia Muslim men of fighting age in a small village called Srebrenica in July
1995 during armed conflicts that arose in 1992-1995 within Bosnia and Herzegovina (P).
A suit was filed against the FRY (Serbia and Montenegro) (D) by Bosnia and Herzegovina
(P) in 1993 in the International Court of Justice, claiming violations of the Convention on
the Prevention and Punishment of the Crime of Genocide, on the theory that the FRY (D)
was responsible for the actions of Serbian forces.
Issue. Under International law, is the conduct if any state organ considered an act of the
state, which can give rise to the responsibility of the state if the conduct constitutes a
breach of an international obligation of the state?
Yes. Under International law, the conduct of any state organ is to be considered
an act of the state, therefore giving rise to the responsibility of the state if the conduct
constitutes a breach of an international obligation of the state. This is a rule of customary
international law that was codified in Article 4 of the ILC Articles of State responsibility.
No evidence showed that the Serbian forces were de jure organs of FRY (D) and this
case did not show that the army of the FRY (D) took part in the massacres or that the
political leaders of the state had any part of it. Though the FRY (D) was providing some
sought of financial and other support to the Serbian forces, this does not automatically
make them organs of the FRY (D).
Also, no evidence was provided to prove that the Serbs were under the effective control
of FRY (D) while conducting the massacre at Srebrenica. This can only imply that those
who were responsible for the massacre were not organs of the FRY (D) and the FRY (D)
cannot take responsibility under international law for the massacres.
Discussion. The brief for the first part of this case, interpreting the requirements of the
Genocide Convention, which is excerpted on page 166 of the casebook, should be looked
into. The I.C.J. had to refer to a standard set by Nicaraguan v. United States in deciding
whether to hold FRY (D) liable for the alleged genocide at Srebrenica by certain Bosnian
Serbs, in which the United States was found not to be legally responsible for the actions
of the Contra guerrillas, despite their common goal and pubic support.
Bosnia and Herzegovina v. Serbia and
Montenegro
Bosnia and Herzegovina v. Serbia and Montenegro is a landmark case
handled by the International Court of Justice.
During the Bosnian War, former Yugoslavian troops stationed in Bosnia and
Herzegovina committed various acts of genocide and atrocities against the Muslims and
Croats that lived there (see Srebrenica massacre). They also laid siege the city
of Sarajevo, the longest siege of a city in modern history.
The government of Bosnia and Herzegovina brought suit against the government
of Serbia and Montenegro under the Convention on the Prevention and Punishment of
the Crime of Genocide (CPPCG).
The International Court of Justice decided ultimately on Feb. 26, 2007, that while
Serbia and Montenegro were not responsible for the genocide committed, they were in
violation of the CPPCG in that they did nothing to prevent the genocide from occurring
and afterward did not punish the perpetrators.
This is the first time that a state has been found in violation of the CPPCG.
To deliver its decision, the court used the famous case of Nicaragua v. United
States in where the International Court of Justice found that although the United
States backed the Contra guerrillas, it could not be held responsible for their actions.
WORLD COURT DIGEST
THE COURT ALSO OBSERVED THAT ARTICLE IX DOES NOT EXCLUDE ANY
FORM OF STATE RESPONSIBILITY, NOR IS THE RESPONSIBILITY OF A STATE
FOR ACTS OF ITS ORGANS EXCLUDED BY ARTICLE IV OF THE CONVENTION,
WHICH CONTEMPLATES THE COMMISSION OF AN ACT OF GENOCIDE BY
"RULERS" OR "PUBLIC OFFICIALS".