David Scheffer


In February 2007 the International Court of Justice (ICJ) delivered a lengthy judgment in a major genocide case, Bosnia v. Serbia, arising from the Balkans war of the early 1990s. Two of the ICJ’s unprecedented rulings are major advancements for enforcement of the Convention on the Prevention and Punishment of the Crime of Genocide (UNCG). First, the Serbian state was found to be in violation of its art. 1 obligation to prevent and punish the crime of genocide. This is a significant boost for both the UNCG and the emerging legal principle of the responsibility to protect civilian populations at risk of atrocity crimes. Second, the ICJ ruled that a state, and not only individuals, can be found responsible for genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, or complicity in genocide. Despite these encouraging rulings, however, the ICJ’s majority judgment exhibits several serious shortcomings. The first is the majority’s failure to develop a state-centric methodology to determine any inference of genocidal intent by the Serbian government. The judges failed to obtain and examine evidence that might have pointed demonstrably to such inference of intent. The second is the majority’s misinterpretation of the crime of complicity in genocide, particularly as it relates to state responsibility: the majority erroneously equated complicity with aiding and abetting and failed to distinguish, in the context of complicity, between specific intent to commit genocide and the motive to do so. Third, the ICJ has missed an opportunity to point out emphatically that its finding on genocide, or the lack thereof, with respect to the state of Serbia reveals a significant gap in international law. While constructively finding that the UNCG can trigger state responsibility for genocide, the ICJ’s judgment shows how deficient international law is in holding states responsible for crimes against humanity and war crimes. One is left pondering the ‘‘what ifs’’ in the result and wondering how the international community can now move forward to draft new treaties that would establish the means to enforce state responsibility for all atrocity crimes.