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INTERNATIONAL COURT OF JUSTICE REPORTS OF JUDGMENTS, ADVISORY OPINIONS AND ORDERS CASE CONCERNING APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (BOSNIA AND HERZEGOVINA v. SERBIA AND MONTENEGRO) JUDGMENT OF 26 FEBRUARY 2007 2007 COUR INTERNATIONALE DE JUSTICE RECUEIL DES ARRE|TS, AVIS CONSULTATIFS ET ORDONNANCES AFFAIRE RELATIVE Av L’APPLICATION DE LA CONVENTION POUR LA PREuVENTION ET LA REuPRESSION DU CRIME DE GEuNOCIDE (BOSNIE-HERZEuGOVINE c. SERBIE-ET-MONTEuNEuGRO) ARRE|TDU26FEuVRIER 2007 Official citation: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007,p.43 Mode officiel de citation: Application de la convention pour la prévention et la répression du crime de génocide (Bosnie-Herzégovine c. Serbie-et-Monténégro), arrêt, C.I.J. Recueil 2007,p.43 Sales number ISSN 0074-4441 No de vente: 921 ISBN 978-92-1-071029-9 26 FEBRUARY 2007 JUDGMENT APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (BOSNIA AND HERZEGOVINA v. SERBIA AND MONTENEGRO) APPLICATION DE LA CONVENTION POUR LA PREuVENTION ET LA REuPRESSION DU CRIME DE GEuNOCIDE (BOSNIE-HERZEuGOVINE c. SERBIE-ET-MONTEuNEuGRO) 26 FEuVRIER 2007 ARRE|T 43 TABLE OF CONTENTS Paragraphs I. QUALITÉS 1-66 II. IDENTIFICATION OF THE RESPONDENT PARTY 67-79 III. THE COURT’S JURISDICTION 80-141 (1) Introduction: the jurisdictional objection of Serbia and Montenegro 80-87 (2) History of the status of the FRY with regard to the United Nations 88-99 (3) The response of Bosnia and Herzegovina 100-104 (4) Relevant past decisions of the Court 105-113 (5) The principle of res judicata 114-120 (6) Application of the principle of res judicata to the 1996 Judgment 121-139 (7) Conclusion: jurisdiction affirmed 140-141 IV. THE APPLICABLE LAW : THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE 142-201 (1) The Convention in brief 142-149 (2) The Court’s 1996 decision about the scope and meaning of Article IX 150-152 (3) The Court’s 1996 decision about the territorial scope of the Convention 153-154 (4) The obligations imposed by the Convention on the Con- tracting Parties 155-179 (5) Question whether the Court may make a finding of geno- cide by a State in the absence of a prior conviction of an individual for genocide by a competent court 180-182 (6) The possible territorial limits of the obligations 183-184 (7) The Applicant’s claims in respect of alleged genocide com- mitted outside its territory against non-nationals 185 (8) The question of intent to commit genocide 186-189 (9) Intent and “ethnic cleansing” 190 (10) Definition of the protected group 191-201 V. QUESTIONS OF PROOF :BURDEN OF PROOF, THE STANDARD OF PROOF, METHODS OF PROOF 202-230 VI. THE FACTS INVOKED BY THE APPLICANT, IN RELATION TO ARTICLE II 231-376 (1) The background 231-234 (2) The entities involved in the events complained of 235-241 (3) Examination of factual evidence: introduction 242-244 4 44 APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) (4) Article II (a): killing members of the protected group 245-277 Sarajevo 246-249 Drina River Valley 250-256 (a) Zvornik 250-251 (b) Camps 252-256 (i) Sušica camp 252 (ii) Focˇa Kazneno-Popravní Dom camp 253-254 (iii) Batkovic´camp 255-256 Prijedor 257-269 (a) Kozarac and Hambarine 257-261 (b) Camps 262-269 (i) Omarska camp 262-264 (ii) Keraterm camp 265-266 (iii) Trnopolje camp 267-269 Banja Luka 270 Manjacˇa camp 270 Brcˇko 271-277 Luka camp 271-277 (5) The massacre at Srebrenica 278-297 (6) Article II (b): causing serious bodily or mental harm to members of the protected group 298-319 Drina River Valley 305-310 (a) Zvornik 305 (b) Focˇa 306 (c) Camps 307-310 (i) Batkovic´camp 307 (ii) Sušica camp 308 (iii) Focˇa Kazneno-Popravní Dom camp 309-310 Prijedor 311-314 (a) Municipality 311 (b) Camps 312-314 (i) Omarska camp 312 (ii) Keraterm camp 313 (iii) Trnopolje camp 314 Banja Luka 315-316 Manjacˇa camp 315-316 Brcˇko 317-318 Luka camp 317-318 (7) Article II (c): deliberately inflicting on the group condi- tions of life calculated to bring about its physical destruc- tion in whole or in part 320-354 Alleged encirclement, shelling and starvation 323-328 Deportation and expulsion 329-334 Destruction of historical, religious and cultural property 335-344 5 45 APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) Camps 345-354 (a) Drina River Valley 346-347 (i) Sušica camp 346 (ii) Focˇa Kazneno-Popravní Dom camp 347 (b) Prijedor 348-350 (i) Omarska camp 348 (ii) Keraterm camp 349 (iii) Trnopolje camp 350 (c) Banja Luka 351 Manjacˇa Camp 351 (d) Bosanski Šamac 352 (8) Article II (d): imposing measures to prevent births within the protected group 355-361 (9) Article II (e): forcibly transferring children of the pro- tected group to another group 362-367 (10) Alleged genocide outside Bosnia and Herzegovina 368-369 (11) The question of pattern of acts said to evidence an intent to commit genocide 370-376 VII. THE QUESTION OF RESPONSIBILITY FOR EVENTS AT SREBRENICA UNDER ARTICLE III, PARAGRAPH (a), OF THE GENOCIDE CONVEN- TION 377-415 (1) The alleged admission 377-378 (2) The test of responsibility 379-384 (3) The question of attribution of the Srebrenica genocide to the Respondent on the basis of the conduct of its organs 385-395 (4) The question of attribution of the Srebrenica genocide to the Respondent on the basis of direction or control 396-412 (5) Conclusion as to responsibility for events at Srebrenica under Article III, paragraph (a), of the Genocide Con- vention 413-415 VIII. THE QUESTION OF RESPONSIBILITY, IN RESPECT OF SREBRENICA, FOR ACTS ENUMERATED IN ARTICLE III, PARAGRAPHS (b) TO (e), OF THE GENOCIDE CONVENTION 416-424 IX. THE QUESTION OF RESPONSIBILITY FOR BREACH OF THE OBLIGATIONS TO PREVENT AND PUNISH GENOCIDE 425-450 (1) The obligation to prevent genocide 428-438 (2) The obligation to punish genocide 439-450 X. THE QUESTION OF RESPONSIBILITY FOR BREACH OF THE COURT’S ORDERS INDICATING PROVISIONAL MEASURES 451-458 XI. THE QUESTION OF REPARATION 459-470 XII. OPERATIVE CLAUSE 471 6 46 LIST OF ACRONYMS Abbreviation Full name Comments ARBiH Army of the Republic of Bosnia and Herzegovina FRY Federal Republic of Yugoslavia Name of Serbia and Mon- tenegro between 27 April 1992 (adoption of the Constitution) and 3 Feb- ruary 2003 ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia ILC International Law Commission JNA Yugoslav People’s Army Army of the SFRY (ceased to exist on 27 April 1992, with the creation of the VJ) MUP Ministarstvo Unutrašnjih Pollova Ministry of the Interior NATO North Atlantic Treaty Organiza- tion SFRY Socialist Federal Republic of Yugoslavia TO Teritorijalna Odbrana Territorial Defence Forces UNHCR United Nations High Commis- sioner for Refugees UNPROFOR United Nations Protection Force VJ Yugoslav Army Army of the FRY, under the Constitution of 27 April 1992 (succeeded to the JNA) VRS Army of the Republika Srpska 7 47 INTERNATIONAL COURT OF JUSTICE 2007 YEAR 2007 26 February General List No. 91 26 February 2007 CASE CONCERNING APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (BOSNIA AND HERZEGOVINA v. SERBIA AND MONTENEGRO) JUDGMENT Present: President HIGGINS ; Vice-President AL-KHASAWNEH ; Judges RANJEVA, SHI,KOROMA,OWADA,SIMMA,TOMKA,ABRAHAM,KEITH,SEPÚLVEDA- AMOR,BENNOUNA,SKOTNIKOV ; Judges ad hoc MAHIOU,KRECuA ; Registrar COUVREUR. In the case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide, between Bosnia and Herzegovina, represented by Mr. Sakib Softic´, as Agent; Mr. Phon van den Biesen, Attorney at Law, Amsterdam, as Deputy Agent; Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, Member and former Chairman of the United Nations International Law Commis- sion, Mr. Thomas M. Franck, Professor Emeritus of Law, New York University School of Law, Ms Brigitte Stern, Professor at the University of Paris I, 8 48 APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) Mr. Luigi Condorelli, Professor at the Faculty of Law of the University of Florence, Ms Magda Karagiannakis, B.Ec., LL.B., LL.M., Barrister at Law, Mel- bourne, Australia, Ms Joanna Korner Q.C., Barrister at Law, London, Ms Laura Dauban, LL.B. (Hons), Mr. Antoine Ollivier, Temporary Lecturer and Research Assistant, Univer- sity of Paris X-Nanterre, as Counsel and Advocates; Mr. Morten Torkildsen, BSc., MSc., Torkildsen Granskin og Rådgivning, Norway, as Expert Counsel and Advocate; H.E. Mr. Fuad Šabeta, Ambassador of Bosnia and Herzegovina to the King- dom of the Netherlands, Mr. Wim Muller, LL.M., M.A., Mr. Mauro Barelli, LL.M. (University of Bristol), Mr. Ermin Sarajlija, LL.M., Mr. Amir Bajric´, LL.M., Ms Amra Mehmedic´, LL.M., Ms Isabelle Moulier, Research Student in International Law, University of Paris I, Mr. Paolo Palchetti, Associate Professor at the University of Macerata, Italy, as Counsel, and Serbia and Montenegro, represented by H.E. Mr. Radoslav Stojanovic´, S.J.D., Head of the Law Council of the Ministry of Foreign Affairs of Serbia and Montenegro, Professor at the Belgrade University School of Law, as Agent; Mr. Saša Obradovic´, First Counsellor of the Embassy of Serbia and Mon- tenegro in the Kingdom of the Netherlands, Mr. Vladimir Cvetkovic´, Second Secretary of the Embassy of Serbia and Montenegro in the Kingdom of the Netherlands, as Co-Agents; Mr. Tibor Varady, S.J.D. (Harvard), Professor of Law at the Central Euro- pean University, Budapest, and Emory University, Atlanta, Mr.
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