State responsibility for genocide

European Journal of International Law

Volumn 17, Issue 3, 2006, Pages 553-604

  Milanović, Marko ^a  

^a Belgrade Centre for Human Rights   (Serbia)

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EID: 33748198196     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chl019     Document Type: Article

References (314)

1. Hereinafter ICJ, or the Court.
2. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), General List No. 91 [hereinafter Bosnia v. Serbia or the Genocide case. Oral and written pleadings in the case are available at http://www.icj-cij.org/icjwww/idocket/ibhy/ibhyframe.htm.
3. Hereinafter Bosnia.
4. Formerly the Federal Republic of Yugoslavia (FRY) [hereinafter Serbia].
5. See, e.g., S.R. Ratner and J.S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2nd edn., 2001), at 187-225.
6. See, e.g., Ratner and Abrams, supra note 5, at 3-14
7. Dupuy, 'International Criminal Responsibility of the Individual and International Responsibility of a State', in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, vol. 2 (2002), at 1085 et seq.
8. Of course, the modalities of compensation, and especially those of private as opposed to state claims remain controversial to this day. See, e.g., Buxbaum, 'A Legal History of International Reparations', 23 Berkeley J. Int'l L. (200 5) 314. The bulk of compensation to individuals (more than $50 billion) went through the negotiation processes of the Conference on Jewish Material Claims Against Germany, see at http://www.claimscon.org/index.asp.
9. M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2002).
10. See R. Lemkin, Axis Rule in Occupied Europe (1944, a 2005 reprint is also available)
11. see also W.A. Schabas, Genocide in International Law: The Crime of Crimes (2000), at 14-50
12. S. Power, A Problem from Hell: America and the Age of Genocide (2002), at 1-85.
13. See, e.g., Power, supra note 9, at 358-364.
14. Some domestic legal systems may have adopted a broader definition of genocide, which differs from the one in international law. See, e.g., the order of the investigative judge of the Spanish Audiencia Nacional in the Pinochet case, No. 1/98, 5 Nov. 1998, where the definition of genocide was interpreted as encompassing political and other social groups, as the Spanish criminal legislation did not include crimes against humanity or use them as a basis for universal jurisdiction.
15. See Carrasco and Fernandez, 'In re Pinochet', 93 AJIL (1999) 690.
16. See also the judgments of German courts in the case of Bosnian Serb Nikola Jorgić, Oberlandesgericht Düsseldorf, 2 StE 8/96, judgement of 26 September 1997, Bundesgerichtshof, judgment of 30 April 1999;
17. Bundesverfassungsgericht, judgment of 12 December 2000.
18. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277.
19. UN GA Res. 96 (I), 11 December 1946: 'The victim of the crime of genocide is the group itself.' See also Prosecutor v. Jelisić, IT-95-10, Trial Chamber judgment of 14 December 1999, para. 79. ICTY judgments can be found at http//:www.un.org/icty/.
20. See Schabas, supra note 9, at 102-150.
21. Even if the list of protected groups is exhaustive, it still needs to be determined how to define a national, ethnic, racial or religious group. In most cases this is relatively easy. In the case of Rwanda, however, the ICTR had to establish whether the Tutsi could be subsumed under one of these categories, and encountered great difficulties arising from the relatively artificial distinction made between the Tutsi and the Hutu. The ICTR therefore oscillated from an objective approach (i.e., whether ethnic or racial groups, for instance, are defined by certain objective characteristics), to more subjective (or more anthropological) approaches (i.e., how the group identifies itself, or how the perpetrator identifies the group). See, e.g., Prosecutor v. Rutaganda, ICTR-9 6-3, Trial Chamber judgment of 6 Dec. 1999; Appeals Chamber judgment of 26 May 2003. ICTR judgments can be found at http//:www.ictr.org.
22. See Van Schaack, 'The Crime of Political Genocide: Repairing the Genocide Convention's Blind Spot', 106 Yale LJ (1997) 2259.
23. See also Ratner and Abrams, supra note 5, at 42-45.
24. See, e.g., A. Cassese, International Criminal Law (2003), at 64-95
25. Ratner and Abrams, supra note 5, at 69-79.
26. See, e.g., Ratner and Abrams,supra note 5, at 267-283.
27. See the discussion and an overview of the literature in Ratner and Abrams, supra note 5, at 284-290.
28. I do not share the concern expressed by Schabas that expanding the definition of genocide might trivialize the offence, by basically equating it with any systematic act of mass murder. See Schabas, supra note 9, at 150. That is precisely how lay persons actually see genocide. Admittedly, the fact that the killings of Chain Muslims or ethnic Vietnamese in Cambodia might legally qualify as genocide, while the (more numerous) killings of ethnic Khmer who were targeted by other ethnic Khmer because of their social status might not so qualify, could to the average lay person seem completely bizarre. Policy considerations aside, this distinction is nevertheless what the law requires.
29. A strict conception of genocidal intent and the ensuing distinction between genocide and crimes against humanity have been unambiguously accepted in the jurisprudence of the two ad hoc tribunals, particularly the ICTY. See Tournaye, 'Genocidal Intent Before the ICTY', 52 ICLQ (2003) 447.
30. See, e.g., Article 7 of the Rome Statute of the ICC; Article 5 of the Statute of the ICTY.
31. See, e.g., Prosecutor v. Krstić, IT-98-33, Appeals Chamber judgment of 19 April 2004, para. 25. So-called cultural genocide was explicitly excluded from the scope of the Genocide Convention during its drafting process. See Schabas, supranote 9, at 152 et seq.
32. Ratner and Abrams, supra note 5, at 31. However, these acts are again still punishable under international law as crimes against humanity, and can, in the right circumstances, be evidence of the intent to physically destroy a group and thus be probative of genocide stricto sensu.
33. See Ratner and Abrams, supra note 5, at 36.
34. This has also been confirmed by the ICJ in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 8 July 1996, para. 26: 'It was maintained before the Court that the number of deaths occasioned by the use of nuclear weapons would be enormous; that the victims could, in certain cases, include persons of a particular national, ethnic, racial or religious group; and that the intention to destroy such groups could be inferred from the fact that the user of the nuclear weapon would have omitted to take account of the well-known effects of the use of such weapons. The Court would point out in that regard that the prohibition of genocide would be pertinent in this case if the recourse to nuclear weapons did indeed entail the element of intent, towards a group as such, required by the provision quoted above. In the view of the Court, it would only be possible to arrive at such a conclusion after having taken due account of the circumstances specific to each case.' (emphasis added)
35. See Prosecutor v. Kayishema and Ruzindana, ICTR-95-1, Trial Chamber judgment of 21 May 1999, para. 93: 'The Chamber finds that the intent can be inferred either from words or deeds and may be demonstrated by a pattern of purposeful action. In particular, the Chamber considers evidence such as the physical targeting of the group or their property; the use of derogatory language toward members of the targeted group; the weapons employed and the extent of bodily injury; the methodical way of planning, the systematic manner of killing. Furthermore, the number of the victims from the group is also important.'
36. See Prosecutor v. Stakić, IT-97-24, Appeals Chamber judgment of 22 March 2006, paras. 43-45.
37. See, e.g., Rosenstock, 'The ILC and State Responsibility', 96 AJIL (2002) 792.
38. See, e.g., A Cassese, International Law (2nd edn., 2005), at 241-243.
39. See also Matsui, 'The Transformation of the Law of State Responsibility', 20 Thesaurus Acroasiurn (1993) 1.
40. The UN General Assembly took note of the Articles by its Resolution 56/ 83 of 12 December 2001. It has not yet been conclusively decided whether the Articles will be formally adopted by treaty, in the vein of the Vienna Convention on the Law of Treaties, or whether they will simply be allowed to germinate in state and international judicial practice. See Crawford and Olleson, 'The Continuing Debate on a UN Convention on State Responsibility', 54 ICLQ (2005) 959.
41. See also Caron, 'The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority', 96 AJIL (2002) 857.
42. ILC Commentaries to the Draft Articles, extract from the Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chp.IV.E.2), available at http://untreaty.un.org/ilc/texts/instruments/english/commentaries/ 9_6_2001.pdf, at 59-60.
43. See Cassese, supra note 29, at 244-245.
44. See also M.N. Shaw, International Law (5th edn., 2003), at 698 et seq.
45. See Cassese, supra note 29, at 251. Cassese rightly notes that responsibility under Articles 17 and 18 of the Draft Articles entails an element of knowledge.
46. See Allott, 'State Responsibility and the Unmaking of International Law', 29 Harv. Int'l. LJ (1988) 1.
47. For an excellent discussion on the functional nature of the distinction, see Crawford, 'The ILC's Articles on Responsibility of States for Internationally Wrongful Acts', 96 AJIL (2002) 874, 876-880.
48. See more Nollkaemper, 'Concurrence Between Individual Responsibility and State Responsibility in International Law', 52 ICLQ (2003) 615.
49. Ibid., 622-624.
50. The Draft Articles adopted on the first reading in 1996 are available at http://lcil.law.cam.ac.uk/ILCSR/articles_1996(e).doc.
51. See, e.g., the Seventh Report on State Responsibility by Prof. Arangio-Ruiz, UN Doc. A/CNA/469, 9 May 1995, available at http://daccessdds.un.org/doc/UNDOC/GEN/G95/612/34/PDF/ G9561234.pdf?OpenElement.
52. At least insofar as they considered that international crimes, even if they are a viable concept, do not entail a separate regime of state responsibility. See, e.g., the First Report on State Responsibility by Prof. Crawford, UN Doc. A/CNA/490, 24 April 1998, esp. para. 81. ILC reports and discussions on state responsibility can befound online at http://untreaty.un.org/ilc/guide/9_6.htm.
53. See, e.g., the remarks of the United Kingdom, United States, France and Germany. For state opinions, see at http://lcil.law.cam.ac.uk/ILCSR/ Statresp.htm#Comments. For a full overview of state comments to Draft Article 19, see International Law Commission, First Report on State Responsibility by Prof. James Crawford, Addendums 1 and 2, A/CN.4/490/ Add.1&2, 1 May 1998.
54. See, e.g., J.H.H. Weiler, A. Cassese and M. Spinedi, International Crimes of State: A Critical Analysis of the ILC's Draft Article 19 on State Responsibility (1989)
55. Rosenne, 'State Responsibility and International Crimes: Further Reflections on Article 19 ofthe Draft Articles on State Responsibility', 30 NYU J. Int'l L. & Pol. (1997) 145
56. Abi-Saab,'The Uses of Article 19', 10 EJIL (1999) 339
57. Gaja, 'Should All References to International Crimes Disappear from the ILC Draft Articles on State Responsibility?', 10 EJIL (1999) 365
58. Pellet, 'Can A State Commit a Crime? Definitely, Yes!', 10 EJIL (1999) 425.
59. See Schabas, supra note 9, at 418-424.
60. Only acts of individuals committed in their official capacity can in principle be attributed to a state. See, e.g., the ILC Commentary to the Draft Articles, at 84 et seq. Unfortunately, the ICJ has recently remarked that individuals entitled to immunities under international law can be tried for acts committed in their private capacity when their immunity expires, which would lead to the conclusion that they can never be tried for acts committed in their official capacity, i.e. that state responsibility and individual criminal responsibility could not run concurrently.
61. See Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belgium), judgment of 14 February 2002, para. 61. To deal with this issue, a rather sordid fiction was developed by some courts and authors when applying the international law of immunities, the claim being that acts such as crimes against humanity or genocide can only be committed in a private capacity for the purpose of waiving immunity, which begs the question whether such acts are still 'official' for the purposes of state responsibility. Such a counterintuitive proposition is unfortunately supported by a reading of the ICJ's dictum in the Arrest Warrant case.
62. See also the discussion of Spinedi, 'State Responsibility v. Individual Responsibility for International Crimes: Tertium Non Datur', 13 EJIL (2002) 895.
63. See, e.g., Abi-Saab, supra note 44, 347 et seq.
64. See also Schabas, supra note 9, at 441-446.
65. See generally N.H.B. Jørgensen, The Responsibility of States for International Crimes (2000).
66. See also van der Vyver, 'Prosecution and Punishment of the Crime of Genocide', 23 Fordham Int'l LJ (1999) 286, at 295-298.
67. For an outline of a more cautious approach, see Spinedi, 'La Responsabilité de l'état pour "crime": Une responsabilité pénale?' in H. Ascensio, E. Decaux and A. Pellet (eds), Droit international pénal (2000), at 91-114.
68. Even if the response to violations of these basic principles still remains rather traditional. See Gattini, 'A Return Ticket to " Communitarisnie", Please', 13 EJIL (2002) 1181.
69. Pursuant to Article 41 all states have a positive duty to cooperate in order to bring to an end a serious breach of a peremptory norm, and a negative duty not to recognize the situation created by the breach as lawful. See also Shelton, 'Righting Wrongs: Reparations in the Articles on State Responsibility', 96 AJIL (2002) 833, at 841-844.
70. Cassese rightly points out that the role of the regime of aggravated state responsibility is relatively minor. What is necessary is the establishment of institutional mechanisms for dealing with serious breaches of fundamental norms of international law. See Cassese, supra note 29, at 269-277.
71. See also Klein, 'Responsibility for Serious Breaches of Obligations Deriving from Peremptory Norms of International Law and United Nations Law', 13 EJIL (2002) 1,241,
72. Tams, 'Do Serious Breaches Give Rise to Any Specific Obligations of the Responsible State?', 13 EJIL (2002) 1,161.
73. The US government has relatively consistently asserted that the crimes committed in Darfur can legally be qualified as genocide - see, e.g., the statement of then Secretary of State Colin Powell of 9 September 2004 at http://www.washingtonpost.com/wp-dyn/articles/ A8364-2004Sep9.html and http://edition.cnn.com/2004/WORLD/africa/09/09/ sudan.powell/. However, according to the UN Commission of Inquiry, established pursuant to SC Res. 1564, the atrocities in Darfur do not amount to genocide because of the lack of evidence of specific intent. The Commission's Report of 25 January 2005 is available at http://www.un.org/News/dh/sudan/com_inq_darfur.pdf.
74. See also G. Prunier, Darfur: The Ambiguous Genocide (2005)
75. Schabas, 'Darfur and the "Odious Scourge": The Commission of Inquiry's Findings on Genocide', 18 Leiden JIL (2005) 871.
76. Case Concerning the Barcelona Traction, Light and Power Co., Ltd., ICJ Reports (1970), at 3 etseq, paras 33 and 34.
77. See B. Simma, 'International Human Rights and General International Law: A Comparative Analysis', Collected Courses of the Academy of European Law (1994, IV, 2), at 195-200.
78. If it decides to treat the developments of erga omnes obligations as modifying its traditional rules on standing. Though the Barcelona Traction dictum can certainly be interpreted that way, states have not brought breaches of erga omnes obligations before the ICJ if they were not the directly injured state. In any case, the concept of erga omnes obligations does not affect the consensual nature of the ICJ's jurisdiction, which must be established independently. See more, C.J. Tams, Enforcing Obligations Erga Omnes in International Law (2005), at 158-197.
79. See Articles 42 and 48 of the ILC Articles. See also Tams, supra note 55
80. Brown Weiss, 'Invoking State Responsibility in the Twenty-First Century', 96 AJIL (2002) 798.
81. See especially the most recent Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Judgment on Jurisdiction and Admissibility, 3 February 2006, para. 64 et seq.
82. As is arguably the case in Bosnia v. Serbia: One of the Bosnian claims is that Serbia failed to abide by the Court's provisional measures.
83. ILC Commentaries, at 323.
84. See the Resolution on obligations erga omnes in international law, adopted by the Institut de droit international at its Krakow Session on 27 August 2005.
85. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Judgment (merits), 27 June 1986, ICJ Reports (1986), at 14.
86. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment (merits), 19 December 2005.
87. Ibid., at paras 181-221.
88. Genocide case, Judgment (preliminary objections) of 11 July 1996.
89. Le., obligations to enact legislation and prosecute offenders. See more infra.
90. Ibid., at para. 32: '[t]he Court now comes to the second proposition advanced by Yugoslavia, regarding the type of State responsibility envisaged in Article IX of the Convention. According to Yugoslavia, that Article would only cover the responsibility flowing from the failure of a State to fulfill its obligations of prevention and punishment as contemplated by Articles V, VI and VII; on the other hand, the responsibility of a State for an act of genocide perpetrated by the State itself would be excluded from the scope of the Convention. The Court would observe that the reference in Article IX to "the responsibility of a State for genocide or for any of the other acts enumerated in Article III", 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".' Three members of the Court did, however, entertain doubts as to whether state responsibility can exist concurrently with individual criminal responsibility. See the Joint Declaration of Judges Shi and Vereshchetin and the Declaration of Judge Oda.
91. Verbatim record of the public sitting held on Monday 13 March 2006 at 15.00, President Higgins presiding, paras 297-304.
92. See Schabas, supra note 9, at 418-424.
93. See, e.g., in Jørgensen, supra note 48, at 32-41.
94. See Art. 32, Vienna Convention on the Law of Treaties, 1155 UNTS (May 23, 1969) 311. Though the Vienna Convention as such does not apply to the interpretation of the Genocide Convention which preceded it, the rules of Art. 32 do reflect customary law.
95. See at http://www.unhchr.ch/html/menu3/b/treaty1gen.htm and http://www.preventgenocide.org/law/convention/reservations/.
96. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, ICJ Reports (1951), at 22.
97. See, e.g., Human Rights Committee, General Comment No. 24(52) Relating to Reservations, 2 Nov. 1993
98. F. Hampson, Reservations to Human Rights Treaties, working paper pursuant to Sub-Commission decision 1998/113, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Fifty-first session, UN Doc. E/CN.4/Sub.2/1999/28 (28 June 1999)
99. Tenth Report on Reservations to Treaties by Mr. Alain Pellet, Special Rapporteur, International Law Commission, Fifty-seventh session, UN Doc. A/CN.4/558/Add.2 (30 June 2005).
100. Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Judgment on Jurisdiction and Admissibility, 3 February 2006.
101. Ibid., paras 64-70.
102. See, e.g., Legality of Use of Force (Serbia and Montenegro v. Belgium), General List No. 105, Judgment of 15 December 2004. In these cases the ICJ decided by 8 votes to 7 that it did not have jurisdiction ratione personae to entertain the application of Serbia and Montenegro, as it was not a member state of the United Nations at the time the alleged violations of international law occurred.
103. See, e.g., the oral pleadings of Professor Ian Brownlie on behalf of Serbia, Verbatim record of the public sitting of the Court held on 16 March 2006, at 10 a.m., President Higgins presiding, CR 2006/21.
104. See also Schabas, supra note 9, at 444.
105. See also Nollkaemper, supra note 38, at 633.
106. For a discussion on the place of fault in the ILC's codification effort see Gattini, 'Smoking/No Smoking: Some Remarks on the Current Place of Fault in the ILC Draft Articles on State Responsibility', 10 EJIL (1999) 397.
107. See also Crawford, 'Revising the Draft Articles on State Responsibility', 10 EJIL (1999) 436.
108. See, e.g., the ILC Commentaries to the Draft Articles, at 69-73, where the ILC Special Rapporteur clearly mentions genocide as an example, and deals with the issue of fault.
109. See Article 7 of the ILC Articles.
110. Dupuy argues that it would be necessary to show the genocidal intent of the government official who actually orders the commission of genocide to establish state responsibility for genocide. See Dupuy, supra note 6, at 1095-1096. This may be true, but proving a direct order or instruction allows for almost an automatic inference of genocidal intent, whatever its relevance. In a great number of cases, however, it will be impossible to prove a direct order by the state to a non-state actor acting as its proxy, and it is precisely these cases which show that it is not necessary to prove the genocidal intent of a government, but merely its control of a non-state actor.
111. Held on 20 January 1942 in the Berlin suburb of Wannsee, at which high-ranking Nazi officials discussed the 'Final Solution of the Jewish Question'. The minutes of the Conference (the Wannsee Protocol), drafted by Adolf Eichmann, have been saved and presented as evidence at the Nuremberg trials and are available at http://www.writing.upenn.edu/ -afilreis/Holocaust/wansee-transcript.html, and have also been complemented by Eichmann's testimony at his 1961 trial in Jerusalem. See more H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1994)
112. C.R. Browning, The Origins of the Final Solution (2005), esp. at 398-415.
113. It should, of course, be noted that the idea of the creation of a 'Greater Serbia' was not a coherent, unified programme but a jumbled mix of different approaches and nationalistic ideologies - from pan-Slavism to romantic nationalism to Serbian chauvinistic nationalism of the end of the 20th century. See, e.g., JR. Lampe, Yugoslavia as History - Twice There Was a Country (1996), at 39, 40, 52
114. S.K. Pavlowitch, Serbia - The History behind the Name (2002), at 91, 95, 99, 108-110
115. J. Ridgeway and J. Udovički, Burn This House: The Making and Unmaking of Yugoslavia (1997), at 46.
116. Some authors argue that the applicability of the aggravated regime of state responsibility would depend on attributing a criminal act, which would also include intent, to a high-ranking official. See Nollkaemper, supra note 38, at 633. However, whether the aggravated regime applies or not depends solely on the nature of the violated norm, and intent may certainly be an element of the violation, but need not be an element of attribution.
117. See Toufayan, 'The World Court's Distress When Facing Genocide: A Critical Commentary on the Application of the Genocide Convention Case (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), 40 Tex. ILJ (2005) 233.
118. See also Schabas, supra note 9, at 447-455.
119. See, e. g., M.C. Bassiouni and E.M. Wise, Aut dedere aut judicare: The Duty to Extradite or Prosecute in International Law (1995).
120. The main purpose served by these separate crimes is preventive. See Schabas, supra note 9, at 257.
121. Ibid., at 258.
122. See Cassese, supra note 18, at 196-198.
123. See Schabas, supra note 9, at 265.
124. The Wannsee Protocol and Eichmann's testimony during his in trial in Jerusalem would be a good example, see supra note 84.
125. Ordinary accessory-type incitement is still punishable under normal rules on complicity. The offence of direct and public incitement does not require the proof of a causal nexus between the act of incitement and the commission of genocide. It is of course quite unlikely that the responsibility of either a state or an individual would be invoked if no genocide had in fact occurred, but the lack of a requirement of proving causality is there simply to alleviate the already heavy evidentiary burden.
126. See Schabas, supra note 9, at 276-280.
127. The entire judgment is available at http://www.yale.edu/lawweb/avalon/ imt/proc/judcont.htm. See also at http://www.law.umkc.edu/faculty/ projects/ftrials/nuremberg/nuremberg.htm.
128. See at http://www.yale.edu/lawweb/avalon/imt/proc/judstrei.htm.
129. Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945, 3 Official Gazette, Control Council for Germany (1946), at 50-55.
130. Prosecutor v. Nahimana, Ngeze and Barayagwiza, ICTR-99-52-T, Trial Chamber Judgment of 3 December 2003. The judgment is currently on appeal.
131. See ibid., esp. paras 390, 395 and 396.
132. See also Schabas, 'Hate Speech in Rwanda: The Road to Genocide',46 McGill LJ (2000) 142
133. J.-P. Chrétien (ed.), Rwanda: Les médias du génocide (1995).
134. As direct and public incitement is an inchoate crime.
135. See Schabas, supra note 9, at 280-285.
136. Though aiding and abetting has for peculiar reasons been distinguished from complicity in the jurisprudence of the ad hoc tribunals. Still, as stated by Schabas, it is hard to justify this distinction, as aiding and abetting is a classic form of complicity. See ibid., at 293.
137. But see ibid., at 300-303.
138. See in that regard United Kingdom v. Tesch et al. ('Zyklon B case') 1 L. Rep. Tr. War. Crim. (1947) 93, though, of course, Tesch could not have been prosecuted for genocide in 1947.
139. Prosecutor v. Krstić, Appeals Chamber judgment, para. 140 et seq. Prosecutor v. Blagojević and Jokić, IT-02-60, Trial Chamber judgment of 17 January 2005, para. 776 et seq.
140. Attribution under Article 5 of the ILC Articles, which deals with a similar issue, is irrelevant for the purpose of this essay, as it is clearly limited to entities which are empowered by internal law to exercise governmental authority, yet fall short from being an organ under Article 4, such as various public companies or other para-statal entities. See ILC Commentaries, at 94. Attribution under Articles 9-11 will also not be dealt with in this paper, nor will it deal with any other basis for state responsibility other than state control over non-state actors.
141. Though, on occasion, the ample arrogance of these people does get the better of them, and they do make public statements from which their (potential) genocidal intent can be inferred - for example, the statement of General Mladić to the cameras upon Bosnian Serb armed forces taking over the enclave of Srebrenica: 'the moment has finally come to take revenge on the Turks', see Prosecutor v. Krstić, Trial Chamber Judgment, para. 336 and n. 890; or the current statements of Iranian President Ahmadinejad about wiping Israel from the map, see at http://edition.cnn.com/2005/WORLD/meast/10/26/ahmadinejad/index.html.
142. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia and Montenegro), General List No. 118.
143. See, e.g., at http://news.bbc.co.uk/2/hi/africa/3613953.stm.
144. See the 2004 ILC report by Martti Koskenniemi, The Function and Scope of the lex specialis Rule and the Question of 'Self-contained Regimes': An Outline, available at http://untreaty.un.org/ilc/sessions/55/ fragmentation_outline.pdf.
145. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment, ICJ Reports (1986), at 14.
146. Ibid., at para. 93 et seq.
147. See, e.g., Meron, 'Classification of Armed Conflict in the Former Yugoslavia: Nicaragua's Fallout', 92 AJIL (1998) 236
148. Chase, 'Legal Mechanisms of the International Community and the United States Concerning State Sponsorship of Terrorism', 45 Va. J Int'l L (2004) 41.
149. Nicaragua v. United States, supra note 113, at paras 93 and 94.
150. Ibid., para. 110.
151. Ibid., paras. 109 and 110.
152. Ibid., para. 112.
153. Ibid., para. 114.
154. Ibid., para. 277.
155. Dissenting Opinion of Judge Schwebel, paras. 257-261. See also the Dissenting Opinion of Judge Jennings, para. 538.
156. Separate Opinion of Judge Ago (English translation), paras 14-19.
157. See, e.g., Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2004), at 14-16.
158. See, e.g., Greenwood, 'International Humanitarian Law and the Tadic Case, 7 EJIL 265 (1996) 265, at 275-276.
159. Prosecutor v. Tadić, Trial Chamber judgment, paras 585 et seq.
160. Nicaragua, para. 219.
161. Ibid., at paras. 109 and 115.
162. The very fact that the relevant parts of the Nicaragua judgment are separated by more than a hundred paragraphs is an obvious indication.
163. Prosecutor v. Tadić, Trial Chamber judgment, paras 605-606.
164. Ibid., at para. 607.
165. Separate and Dissenting Opinion of Judge McDonald, at 292.
166. Ibid., at 295-296.
167. Ibid., at 299.
168. The Appeals Chamber did previously examine several quite important jurisdictional aspects of the case on interlocutory appeal, before the Trial Chamber's judgment was delivered: Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.
169. Prosecutor v. Tadić, Appeals Chamber judgment, at paras 83-89.
170. Ibid., at para. 97.
171. Ibid., at paras 99 et seq.
172. Ibid., at paras 111 and 112.
173. Ibid., at paras 100, 107-113.
174. Ibid., at paras 115.
175. Ibid., at paras 117.
176. Ibid., at paras 118-120.
177. Ibid., at paras 124 et seq.
178. Ibid., at paras 131: 'In order to attribute the acts of a military or
179. Ibid., at para. 137.
180. Ibid., at para. 143.
181. See de Hoogh, 'Articles 4 and 8 of the 2001 ILC Articles on State Responsibility, the Tadic Case and Attribution of Acts of Bosnian Serb Authorities to the Federal Republic of Yugoslavia', 72 BYbIL (2001) 255, at 290.
182. Ibid., at paras 160-162.
183. Nicaragua, at para. 115.
184. Ibid, at para. 110.
185. Prosecutor v. Tadić, Appeals Chamber judgment, para. 131.
186. See also de Hoogh, supra note 148, at 278-281.
187. See Prosecutor v. Tadić, Appeals Chamber judgment, Separate Opinion of Judge Shahabuddeen, para. 4 et seq.
188. 'l. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State. 2. An organ includes any person or entity which has that status in accordance with the internal law of the State.'
189. It should be noted that the law of treaties explicitly excludes this possibility - see Article 27 of the Vienna Convention on the Law of Treaties: '[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.'
190. ILC Commentaries, at 90-91.
191. See also the statement of 13 August 1998 by Professor Bruno Simma, then Chairman of the ILC Drafting Committee, commenting on then Draft Article 5 (now Article 4), available at http://lcil.law.cam.ac.uk/ILCSR/rft/ Simma(98dcrep).rtf, at 5-6: 'Paragraph 2 [of Article 5] recognizes the significant role played by internal law in determining the status of a person or an entity within the structural framework of the State. This role of internal law is decisive when it makes an affirmative determination that a person or an entity constitutes an organ of the State. The commentary will explain that the term "internal law" is used in a broad sense to include practice and convention. The commentary will also explain the supplementary role of international law in situations in which internal law does not provide any classification or provides an incorrect classification of a person or an entity which in fact operates as a State organ within the organic structure of the State.'
192. See First Report on State Responsibility by James Crawford, Addendum 5, UN Doc. A/CNA/490, Add. 5, 22 July 1998, at 16 et seq.
193. ILC Commentaries, at 105-107.
194. See International Law Commission, Comments and observations received from Governments, A/CNA/488, 25 March 1998.
195. In its submissions to the ILC on the first version of the Draft Articles, the United States and the United Kingdom have also objected to the idea of state organs having that status solely under internal law. Other governments made no submissions on the issue. See International Law Commission, Comments and observations received from Governments, A/ CNA/488, 25 March 1998, at 28-29; First Report on State Responsibility, supra note 159, at 7-9.
196. See the Address to the Nation by President Bush on September 11, 2001, available at http://www.whitehouse.gov/news/releases/2001/09/ 20010911-16.html, who inter alia stated that 'We will make no distinction between the terrorists who committed these acts and those who harbor them.'
197. Ratner, 'Jus ad Bellum and Jus in Bello after September 11', 96 AJIL (2002) 905, at 907.
198. The ICJ's jurisprudence can certainly be read in a way which would incorporate the rules of state responsibility into the jus ad bellum, as self-defence would be lawful under Article 51 of the UN Charter only in the case of an armed attack for which another state is responsible. See Case Concerning Oil Platforms (Iran v. United States), Judgment (Merits) of 6 November 2003, paras 57-61
199. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, paras 138 and 139. The ICJ has passed up another opportunity to clarify its position on the matter in Congo v. Uganda-see the judgment in that case, paras 146 and 147. This approach of the Court was quite correctly criticized by Judges Simma and Kooijmans in their separate opinions - see Separate Opinion of Judge Simma, paras 4-15; Separate Opinion of Judge Kooijmans, paras 16-35.
200. Nor has doctrine managed to make much more sense of the issue - for one of the earliest treatments of attacks by private actors and self-defence under Article 51 of the Charter, see Brownlie, 'International Law and the Activities of Armed Bands', 7 ICLQ (1958) 712.
201. In other words, the possible development of special primary rules on state sponsorship of terrorism does not depend on a simultaneous change of traditional rules of state responsibility. See Jinks, 'State Responsibility for Sponsorship of Terrorist and Insurgent Groups: State Responsibility for the Acts of Private Armed Groups', 4 Chi. J Int'l L (2003) 83.
202. A view which would certainly be supported by SC Resolutions 1368 and 1373 (2001), which 'reaffirm the inherent right of individual or collective self-defence' in response to terrorism (though these resolutions do not say self-defence against whom, and in what way).
203. See Meron, supra note 115, at 241-242.
204. The test of overall control has certainly been applied by the ICTY in several subsequent cases in order to determine the character of a particular episode of an armed conflict. See more Cullen, 'The Parameters of Internal Armed Conflict in International Humanitarian Law', 12 U Miami Int'l & Comp L Rev (2004) 189.
205. See also Meron, supra note 115, at 239-241.
206. See Sassòli and Olson, 'International Decision: Prosecutor v. Tadic', 94 AJIL (2000) 571, at 578.
207. And it now might be so by the sheer force of precedent, certainly within the ICTY - see, e.g., Prosecutor v. Zejnil Delalić et al., IT-96-21, Appeals Chamber Judgment, 20 February 2001, paras 6-27-and it will possibly be treated as such by the ICC.
208. Kenneth P. Yeager v. Islamic Republic of Iran, 17 Iran-US Claims Tribunal Reports (1987) 92.
209. Tadić, Appeals Chamber Judgment, paras 126 and 127.
210. See ILC Commentaries, at 109-110.
211. Loizidou v. Cyprus, App. no. 15318/89, Judgment (preliminary objections) of 23 February 1995, paras 60-64
212. Judgment (merits) of 28 November 1996, paras 52-57.
213. Tadić, Appeals Chamber Judgment, para. 128.
214. Banković and Others v. Belgium and Others., App. no. 52207/99, Decision on admissibility of 12 December 2001, esp. paras 54-82.
215. Issa and Others v. Turkey, App. no. 31821/96, Judgment, 16 November 2004, esp. para. 69.
216. Ilascu and Others v. Moldova and Russia, App. No. 48787/99, Judgment of 8 July 2004, esp. paras 336-352, 376-394.
217. Article 2(a) of the ILC Articles.
218. Article 2(b) of the ILC Articles
219. See more Craven, 'Legal Differentiation And The Concept Of The Human Rights Treaty In International Law', 11 EJIL (2000) 489.
220. For example, the European Court used the ILC Draft Articles on State Responsibility in the Ilascu case, para. 319, when it discusses state responsibility for ultra vires acts and breaches which extend over time; or in Blečić v. Croatia, Application no. 59532/00, Grand Chamber Judgment of 8 March 2006, para. 48, on the same issue. It makes no mention of the ILC Articles in the section of the Ilascu judgment in which it discusses the jurisdiction of Moldova and Russia over the applicants, nor does it at any point in any of these cases discuss the different standards of control as expounded in Nicaragua and Tadić.
221. See ILC Commentaries, at 106-107. A similar attempt was made by Judge Shahabuddeen, a former ICJ judge himself, in his separate opinion in Tadić: See Appeals Chamber judgment, Separate Opinion of Judge Shahabuddeen, para. 4 et seq.
222. Tadić, Appeals Chamber Judgment, para. 98 et seq.
223. See also Wittich, 'The International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts Adopted on Second Reading', 15 Leiden JIL (2002) 891.
224. Congo v. Uganda, para. 160: 'The Court concludes that there is no credible evidence to suggest that Uganda created the MLC. Uganda has acknowledged giving training and military support and there is evidence to that effect. The Court has not received probative evidence that Uganda controlled, or could control, the manner in which Mr. Bemba put such assistance to use. In the view of the Court, the conduct of the MLC was not that of "an organ" of Uganda (Article 4, International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001), nor that of an entity exercising elements of governmental authority on its behalf (Article 5). The Court has considered whether the MLC's conduct was "on the instructions of, or under the direction or control of" Uganda (Article 8) and finds that there is no probative evidence by reference to which it has been persuaded that this was the case. Accordingly, no issue arises in the present case as to whether the requisite tests are met for sufficiency of control of paramilitaries (see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 62-65, paras. 109-115).'
225. But see, however, the defence of Tadić by Professor Cassese, then judge in the ICTY Appeals Chamber and former President of the Tribunal, in Cassese, supra note 29, at 248-250.
226. This most recent figure is the product of research conducted for the International Criminal Tribunal for the Former Yugoslavia by the Sarajevo-based Investigation and Documentation Centre (IDC) led by Mirsad Tokaca. According to the IDC, 93,000 people were killed in the Bosnian war, mostly civilians, and of those 70 per cent were Bosniaks (Muslims), slightly under 25 per cent were Serbs, slightly under five per cent Croats and about one per cent of others. See at http://www.bosnia.org.uk/news/news_body.cfm?newsid=1985, accessed on 5 Jan. 2006.
227. As most recently stated by US Under-Secretary of State, Mr. Nicholas Burns, at a conference in Washington, DC on 21 November 2005, available at http://www.state.gov/p/us/rm/2005/57189.htm.
228. The number of people killed during the conflict is also a subject of a macabre dispute between Bosnia and Serbia in the Genocide case, both in the written pleadings and during the oral hearings. See, e.g., the pleadings of Mr. van den Biesen on behalf of Bosnia, Verbatim record of the public sitting of the Court held on 27 February 2006, at 10.30 a.m., President Higgins presiding, CR 2006/2, at 45 et seq, and of Mr. Obradovic on behalf of Serbia, Verbatim record of the public sitting of the Court held on 8 March 2006, at 10 a.m., President Higgins presiding, CR 2006/12, at 38 et seq.
229. The General Framework Agreement for Peace in Bosnia and Herzegovina, available at http://www.ohr.int/dpa/default.asp?content_id=380.
230. See the Trial Chamber judgment in Prosecutor v. Krstić, IT-98-33-T, 2 August 2001 and the judgment of the Appeals Chamber in the same case of 19 April 2004, as well as the recent Trial Chamber judgment in Prosecutor v. Blagojević, IT-02-60-T, 17 January 2005.
231. See, e.g., at http://www.b92.net/info/vesti/ index.php?yyyy=2005&mm=05&dd=17&nav_id=168589 (in Serbian), accessed on March 30, 2006.
232. See, e.g., the numerous news articles and readers' comments at two leading news outlets in Serbia (www.b92.net) and Bosnia (www.avaz.ba), available in Serbian/Bosnian.
233. For example, at the 10th anniversary commemoration of the Srebrenica genocide one of the speakers, Ibran Mustafić, once active in the Association of the Mothers of Srebrenica and unannounced by protocol, declared: 'Long live Bosnia and Herzegovina, and death to all genocidal creations on this territory', see at http://www.b92.net/info/vesti/ index.php?yyyy=2005&mm=07&dd=11&nav_id=172392 (in Serbian).
234. For instance, while the tenth anniversary commemoration was being held in Srebrenica, a Bosnian Serb group organized a parallel event for Serb victims in the nearby village of Bratunac.
235. Application Instituting Proceedings, 20 March 1993.
236. Judgment of 11 July 1996 - Preliminary Objections.
237. See Order of 10 September 2001.
238. Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), 24 April 2001.
239. See the Case Concerning Legality of Use of Force (Serbia and Montenegro v. Belgium), judgment of 15 December 2004, General List No. 105 (one of eight almost identical cases against NATO member states), esp. paras 51-79, 91.
240. Judgment of 3 February 2003. However, a similar genocide application by Croatia against Serbia and Montenegro will almost certainly be rejected by the Court, as it had not yet ruled on its jurisdiction, unlike in the Bosnian case.
241. Simultaneously with the application for revision in the Genocide case, Serbia submitted an Initiative to the Court to Reconsider Ex Officio Jurisdiction over Yugoslavia, 4 May 2001.
242. For a more detailed description of the procedural history of the case, see the Press Release of the ICJ of 27 February 2006, available at http://www.icj-cij.org.
243. See also the analysis of the case by the IWPR, Serbia and Montenegro on Trial for Genocide, 24 February 2006, available at http://www.iwpr.net.
244. See in that regard the Joint Declaration of Vice-President Ranjeva and Judges Guillame, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby in the NATO cases.
245. See the oral pleadings of Mr. Vladimir Djeric on behalf of Serbia, verbatim record of the public sitting of the Court held on 9 March 2006, at 10 a.m., President Higgins presiding, CR 2006/13, at 11
246. See, e.g., General Comment No. 26 of the Human Rights Committee. See also the oral pleadings of Professor Tibor Varady, Mr. Vladimir Djeric and Mr. Andreas Zimmerman on behalf of Serbia, Verbatim record of the public sitting of the Court held on 9 March 2006, at 10 a.m., President Higgins presiding, CR 2006/13
247. See the pleadings by Prof. Alain Pellet on behalf of Bosnia, verbatim record of the public sitting of the Court held on 28 February 2006, at 10 a.m., President Higgins presiding, CR 2006/3.
248. Ibid., at 19.
249. See the oral pleadings of Prof. Thomas Franck on behalf of Bosnia, verbatim record of the public sitting of the Court held on 21 April 2006, at 3 p.m., President Higgins presiding, CR 2006/36, at 25 et seq.
250. See Article 35(2) of the ICJ Statute and UN SC Res. (1946) 9.
251. For a much more detailed analysis of the jurisdictional issue, see Vitucci, 'Has Pandora's Box Been Closed? The Decisions on the Legality of Use of Force Cases in Relation to the Status of the Federal Republic of Yugoslavia (Serbia and Montenegro) within the United Nations', 19 Leiden JIL (2006) 105.
252. See, e.g., the oral pleadings of Mr. Phon van den Biesen on behalf of Bosnia, Verbatim record ofthe public sitting of the Court held on 27 February 2006, at 10.30 a.m., President Higgins presiding, CR 2006/2, at 28 et seq; oral pleadings of Professor Thomas Franck on behalf of Bosnia, verbatim record of the public sitting of the Court held on 1 March 2006, at 10 a.m., President Higgins presiding, CR 2006/5, at 19-20; Reply of Bosnia and Herzegovina, 23 April 1998, at 77-373.
253. See, e.g., the oral pleadings of Mr. Phon van den Biesen, verbatim record of the public sitting of the Court held on 28 February 2006, at 3 p.m., President Higgins presiding, CR 2006/4, at 21 et seq.
254. See, e.g., the oral pleadings of Ms. Magda Karagiannakis on behalf of Bosnia, verbatim record of the public sitting of the Court held on 1 March 2006, at 10 a.m., President Higgins presiding, CR 2006/5, at 33 et seq.
255. See Prosecutor v. Galić, IT-98-29, Trial Chamber judgment of 5 December 2003. General Galić was the VRS officer in charge of the siege of Sarajevo, and was not even charged with genocide, but was convicted for crimes against humanity.
256. See Prosecutor v. Stakić, IT-97-24, Trial Chamber judgment of 31 July 2003, paras 547-561, esp. para. 553: '[though the evidence shows that] the common goal of the members of the SDS in the Municipality of Prijedor, including Dr. Stakić as President of the Municipal Assembly, was to establish a Serbian municipality, there is insufficient evidence of an intention to do so by destroying in part the Muslim group' as well as para. 554 in fine: '[t]he intention to displace a population is not equivalent to the intention to destroy it.' See also the Appeals Chamber judgment in the same case of 22 March 2006, paras 14-57, esp. para. 56.
257. For the origin of the term 'ethnic cleansing' see Petrović, 'Ethnic Cleansing - An Attempt at Methodology', 5 EJIL (1994) 359.
258. See, e. g., the Trial Chamber judgments in the cases of Sikirica, paras 58, 89
259. Jelisić, paras. 68, 79
260. Krstić, para. 553
261. Stakić, para. 518, 519
262. Tadić, para. 697
263. as well as the Appeals Chamber judgement in Tadić, para. 305.
264. See Cassese, supra note 18, at 98-100, 106-107
265. Schabas, supra note 9, at 194-201. See also supra, Section 1.
266. Article II(c) of the Genocide Convention.
267. For a bibliography on the Armenian genocide, see http://www.umd.umich.edu/dept/armenian/facts/gen_bib1.html.
268. Schabas, supra note 9, at 200-201. Even the Nazis at first wanted to deport the Jews from Europe en masse, with plans ranging from the Russian expanses to Madagascar, with the Final Solution becoming a fully genocidal programme once expulsion became impossible.
269. See Browning, supra note 84, at 36-110.
270. See the Genocide case, Reply of Bosnia and Herzegovina, 23 April 1998, at 34 et seq.
271. See, e.g., Brower, 'Evidence before International Tribunals: The Need for Some Standard Rules', 28 Int'l L. (1994) 47.
272. As stated by a judge of the Iran-United States Claims Tribunal: 'the burden of proof is that you have to convince me', quoted by Brower, supra note 228, at 52.
273. See Cassese, supra note 18, at 374-376.
274. This is, of course, a broad generalization, as many civil law systems have quite specific procedural institutions. For more detailed comparisons of adversarial and inquisitorial systems, especially as seen through the prism of international criminal law, see Orie, 'Accusatorial v. Inquisitorial Approach in International Criminal Proceedings prior to the Establishment of the ICC and in the Proceedings before the ICC', in Cassese, et al., supra note 6, 1,439.
275. For a very vivid appraisal of the French Cour d'assises by a lawyer with an Anglo-American background, see Lettow Lerner, 'The Intersection of Two Systems: An American on Trial for an American Murder in the French Cour d'Assises', 3 U Ill L Rev (2001) 791.
276. For an account of the very interesting experience of Italy, a country with a strong civil law tradition which adopted an adversarial system a decade ago, see Pizzi and Montagna, 'The Battle to Establish an Adversarial Trial System in Italy', 25 Mich J Int'l Law (2004) 429.
277. Especially, for example, in the recent Oil Platforms and Wall cases - see, e.g., the Separate Opinion of Judge Buergenthal in the Oil Platforms case, paras 41-46; Separate Opinion of Judge Higgins in the same case, paras 30-39. The Court's recent judgment in Congo v Uganda may be seen as a ray of hope in soothing the sensibilities of common lawyers, as it seems to engage in much more specific discussion of the rules of evidence than any of its previous judgments.
278. See supra 2A3.
279. Rule 87, ICTY Rules of Procedure and Evidence, as amended on 21 July 2005.
280. Rule 87, ICTR Rules of Procedure and Evidence, as amended on 21 May 2005.
281. Article 66 (3) of the ICC Statute.
282. It could also be argued that other branches of international law, such as the law on the use of force, require the establishment of a single evidentiary standard, such as clear and convincing evidence. See O'Connell, 'Lawful Self-Defense to Terrorism', 63 U Pitt. L Rev (2002) 889.
283. See Schabas, supra note 9, at 443.
284. Both parties in the Genocide case spent a significant amount of time on the proper role the ICJ should give to the evidence and jurisprudence of the ICTY. See the pleadings of Prof. Thomas Franck and Ms. Magda Karagiannakis on behalf of Bosnia, verbatim record of the public sitting of the Court held on 28 Feb. 2006, at 10 a.m., President Higgins presiding, CR 2006/3, at 29 et seq.
285. See also Nollkaemper, supra note 38, at 628-630.
286. See also Dupuy, supra note 6, at 1097-1099.
287. See Schabas, 'Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the Former Yugoslavia, 26 Fordham Int'l LJ (2001) 907.
288. The best starting point for the ICJ in this case would be the ICTY Trial Chamber in the Milošević case Decision on the Motion for Judgment of Acquittal, IT-02-54, 16 June 2004, paras 117 et seq., which lists several municipalities in which a reasonable Trial Chamber could find that genocide was committed, and do so beyond reasonable doubt. The legal weight of this decision - the only legal product of the entire Milošević trial - is lower than that of judgment, as it is based only on the evidence presented by the Prosecution (though subject to cross-examination), and as the Trial Chamber does not give its own assessment of the evidence, but discusses whether a reasonable, generic Trial Chamber could establish the existence of genocide. Nevertheless, this decision can still provide a useful baseline for possible instances of genocide in Bosnia other than Srebrenica.
289. See supra 2B.
290. This would, for example, have practical relevance for Serbia's possible responsibility for the Srebrenica massacre. Thus, the Netherlands Institute for War Documentation (NIOD) Report on the Srebrenica genocide states that upon reports of the crimes committed upon the fall of the enclave, 'the mood in Belgrade was one of incredulity and total disbelief', while 'there is no evidence to suggest participation in the preparations for the executions on the part of Yugoslav military personnel or the security agency (RDB).' See at http://213.222.3.5/ srebrenica/toc/p4_c02_s020_b01.html. Be that as it may, if the Bosnian Serb forces were otherwise under the complete control of Serbia and were its de facto organs, than even these acts which might have been committed ultra vires would still be attributable to Serbia.
291. See Nicaragua, paras 93 and 94
292. Congo v. Uganda, para. 160.
293. See, e.g., the reports by B92 of 21 March 2005 regarding General Vinko Pandurevic, indicted before the ICTY for the Srebrenica genocide, available at http://www.b92.net (in Serbian).
294. Indicted before the ICTY, see Prosecutor v. Ražnatović, IT-97-27, Initial Indictement of 30 September 1997, but was assassinated in Belgrade on 15 January 2000.
295. Indicted before the ICTY and currently waiting trial, see Prosecutor v. Šešelj, IT-03-67, Modified Amended Indictement of 15 July 2005.
296. Simatović and his superior, Jovica Stanišić, were indicted before the ICTY, see Prosecutor v. Stanišić and Simatović, IT-03-69, Second Amended Indictment of 20 December 2005, and are currently waiting trial. Members of the JSO later assassinated the first democratically elected prime minister of Serbia, Zoran Dindić, and are currently standing trial in Belgrade.
297. The video, as presented at the Milošević trial, is available at http://jurist.law.pitt.edu/monitor/2005/06/ srebrenica-killings-video-icty.php. Members of the 'Scorpios' are also currently standing trial in Belgrade.
298. As Nicaragua would indicate, but this is by no means certain.
299. See R. Holbrooke, To End a War (rev. edn., 1999), at 51 et seq.
300. See S.P. Ramet and B. Babel, The Disintegration of Yugoslavia from the Death of Tito to Ethnic War (1996), at 257-258.
301. Though he did admit to 'giving aid' to the Bosnian Serbs; see, e.g., the IWPR report at http://www.iwpr.net/ ?p=tri&s=f&o=165884&apc_state=henitri2003.
302. The fact that it was Milosevic who negotiated at Dayton on behalf of the Bosnian Serbs as well as Serbia would go against this conclusion, for example.
303. See supra, 2C4.
304. Political justifications of their inability to arrest Mladić by the Serbian Government are legally completely irrelevant. Serbia's failure to surrender Mladić to the ICTY has recently led the European Union to suspend further talks on stabilization and association; see, e.g., at http://news.bbc.co.uk/2/hi/europe/4968104.stm.
305. See supra, 2A.
306. See supra, 2B.
307. See supra, 2C.
308. See supra, 3E.
309. See supra, 4C2.
310. Prosecutor v. Perišić, IT-04-81.
311. Prosecutor v. Popović et al., IT-05-88.
312. See, e.g., A. Nollkaemper, supra note 38, at. 624-627, 639-640.
313. See, e.g., Article 41 (3) of the ILC Articles, which states that the consequences of serious breaches prescribed by the Articles are without prejudice to further consequences that such breaches may entail under international law.
314. See also the 2005 World Summit Outcome Document, A/RES/60/1, 24 October 2005, available at http://daccessdds.un.org/doc/UNDOC/GEN/N05/487/60/PDF/ N0548760.pdf?OpenElement, paras 138 and 139, which stress the duty of all states to protect their own populations against genocide and other grave crimes, as well as the duty of the international community to take collective action when peaceful means prove inadequate. See also SC Res. 1647 (2006), 28 April 2006, which reaffirms the provisions of paras 138 and 139 of the World Summit Outcome Document.