NIRMA UNIVERSITY

INSTITUTE OF LAW

B.COM., LLB (HONS.)

SEMESTER: IV

COURSE NAME: PUBLIC INTERNATIONL LAW

COURSE CODE: 2BL444

SUBMITTED TO:

Mrs. ANVIKSHA PACHORI

SUBMITTED BY:

21BBL087 DHRITI GOYAL

 “Bosnia and Herzegovina v. Serbia and Montenegro”
[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]

Introduction with the Facts of the case:

The Bosnia and Herzegovina v. Serbia and Montenegro case, which was heard by the
International Court of Justice (ICJ) in 2007, was a precedent-setting proceeding that
addressed some of the most egregious transgressions of international humanitarian law that
took place during the Bosnian War. The case concentrated on Bosnia and Herzegovina's
accusations that Serbia and Montenegro were accountable for ethnic cleansing and acts of
genocide during the conflict. The facts of the case, the legal questions that were presented
and debated by the parties, the relevant laws and legal precedents, the court's decision and
justification, and any potential ramifications and relevance of the case will all be thoroughly
reviewed and examined in this analysis.
Bosnian Serb troops waged an ethnic cleansing operation against Bosnia and Herzegovina's
non-Serb population during the Bosnian War, lasting between 1992 to 1995. Genocidal
crimes were committed throughout the campaign, notably the 1995 massacre of Muslim men
and boys at Srebrenica. Serbia and Montenegro allegedly participated in these crimes of
ethnic cleansing and genocide by aiding the Bosnian Serb troops militarily and logistically,
according to Bosnia and Herzegovina.

Legal Issues:
The legal issues raised in the case were numerous and complex. They included:
1. 1. Whether Serbia and Montenegro breached the Genocide Convention during the
Bosnian War by not taking steps to prevent genocide and punish those who
committed it.
2. 2. Whether Serbia and Montenegro had colluded to commit genocide, as charged by
Bosnia and Herzegovina.
3. 3. Whether Serbia and Montenegro engaged in an ethnic cleansing effort during the
Bosnian War, in violation of the CERD.
4. 4. Whether the Bosnian Serb troops accountable for the genocide fell under the
jurisdiction of Serbia and Montenegro, making them accountable for their acts.
5. 5. Whether Bosnia and Herzegovina had a right to receive complete and adequate
restitution for the suffering the genocide inflicted.
6. 6. Whether the ICJ was authorised to investigate the case.
7. 7. Whether Bosnian Serb troops during the Bosnian War had perpetrated genocide
against the Bosnian Muslim populace.
8. 8. Whether the Bosnia and Herzegovina war was under the purview of the Genocide
Convention.
9. 9. Whether Bosnian Muslims qualified as a "protected group" for the purposes of the
Genocide Convention.
10. If the idea of "genocidal intent" was evident in Bosnian Serb troops' conduct.
11. If Serbia and Montenegro supported the Bosnian Serb forces militarily and in other ways
throughout the Bosnian War.
12. If there was a breach of international law as a result of the international community's
refusal to stop and punish the genocide.
13. Whether the Bosnian War, which was still raging at the time the matter was filed before
the ICJ, qualified for the ICJ to make factual determinations and issue rulings.

Applicable laws of the case:

1. Genocide Convention: The Convention on the Prevention and Punishment of the
Crime of Genocide is an international legal agreement that makes it illegal to carry
out acts with the purpose of eradicating, in whole or in part, a national, ethnic, racial,
or religious group.
2. Convention on the Elimination of All Forms of Racial Discrimination (CERD):
Signatories to the CERD are obligated to work to end all forms of racial
discrimination and advance racial equality.
Bosnia and Herzegovina also joined the Genocide Convention, and Serbia and
Montenegro ratified both of these treaties. Bosnia and Herzegovina's legal complaints
against Serbia and Montenegro were based on these treaties.

Ruling and reasoning of the case:

1. Genocide and accountability: Although the ICJ found that Serbia had not committed
genocide, it did rule that by failing to stop the genocide that took place at Srebrenica,
Serbia had breached its responsibilities under the Genocide Convention. They also
found, Bosnia and Herzegovina did not present enough evidence to establish Serbia's
involvement in a genocidal conspiracy.
2. Ethnic Cleansing: The ICJ determined that while Serbia had not engaged in ethnic
cleansing in Bosnia and Herzegovina, it had breached its responsibilities under the
CERD by failing to stop Bosnian Serb troops from carrying out such crimes.
3. Responsibility for Bosnian Serb Forces: The ICJ said, Serbia had enough authority
over the Bosnian Serb forces to be legally obligated to stop them from committing
war crimes and crimes against humanity.
4. Compensation: According to the ICJ, Bosnia and Herzegovina were entitled to full
and adequate restitution for the harm the genocide inflicted.
5. Jurisdiction: According to the ICJ, the matter was within its purview to hear.
6. Genocidal Intent: According to the ICJ, the Bosnian Serb troops did intend to commit
genocide during the slaughter at Srebrenica, and the Genocide Convention was
relevant to the dispute in Bosnia and Herzegovina.
7. Protected Group: According to the ICJ, the Bosnian Muslim population qualified as a
"protected group" for purposes of the Genocide Convention.
 8. Assistance for Bosnian Serb Forces: According to the ICJ, Serbia gave Bosnian Serb
forces military and other support throughout the Bosnian War.
9. International Community Failure: The ICJ did not decide whether the international
community's inability to stop and punish the genocide constituted a breach of
international law.
10. Power to Make Findings: The ICJ determined that it had the power to reach decisions
about the Bosnian War, which was still raging when the matter was filed to the court.
The ICJ discussed personal criminal responsibility, international collaboration, and the notion
of genocide while reviewing the testimony from both parties and the law. They also looked at
the Balkans' historical and cultural background and concluded that Serbia and Montenegro
were to blame for the ethnic cleansing and genocide that occurred during the Bosnian War.

Analysis of the case:

An important ruling by the ICJ came in the case of Bosnia and Herzegovina v. Serbia and
Montenegro (2007), which dealt with the problems of genocide, conspiracy to commit
genocide, ethnic cleansing, and jurisdictional responsibility stemming out of the Bosnian War
(1992-1995).
Due to their failure to stop genocide and prosecute those who committed it during the
Bosnian War, Serbia and Montenegro were judged to have breached the Genocide
Convention. The court also determined that Serbia and Montenegro engaged in an ethnic
cleansing effort during the Bosnian War, violating the CERD and conspiring to commit
genocide. According to the ICJ, Serbia and Montenegro were in charge of the Bosnian Serb
troops involved in the genocide and were thereby accountable for their deeds.
The case reinforced the idea of personal criminal responsibility for the conduct of
international crimes and defined the terms used to define genocide and its extent.
The case dealt with the brutal conflict that emerged after Yugoslavia's breakup and the rise of
separate governments in the area, which had enormous political and social ramifications. The
ruling of the ICJ was viewed as a step towards justice and peace for the war's victims,
especially the Bosniak (Bosnian Muslim) community that was persecuted by Bosnian Serb
troops.
The case focused on the complex structure of ethnic and religious groups in the Balkans as
well as the heritage of historical conflicts and divides that still influence the area from a
historical, cultural, and social perspective. In its decision, the ICJ emphasised the need for an
all-encompassing strategy that would last over time in order to address the causes of conflict
at their source, foster tolerance and peace, and set up effective institutions and mechanisms
for international responsibility and fairness.
Legal precedent-wise, the case reaffirmed the idea of personal criminal liability for
transnational crimes as well as the significance of preventing and prosecuting genocide. It
helped shape both international human rights law and the International Court of Justice's
jurisprudence on questions of state accountability and jurisdiction.
The case, however, was also criticised for its restricted focus. According to some, it should
have covered additional players and governments associated with the dispute, such like
Croatia and the United States, and extended beyond the constrictive juridical parameters of
the Genocide Convention and CERD. Notwithstanding these critiques, the case represented
an important legal, political, and social turning point in relation to the Bosnian War and more
general questions of genocide and global criminal justice. The importance of international
law and order in addressing the underlying causes of conflict, encouraging rapprochement
and tolerance, and creating a fairer and more peaceful world was highlighted.