Case Concerning Application of the Convention on the Prevention & Punishment of the Crime of Genocide (Bosnia & Herzegovina v. Serbia & Montenegro)

In July 1995, the armed forces of the Republika Srpska (the armed forces), located in Serbia (defendant), committed genocide in Bosnia and Herzegovina (collectively, Bosnia) (plaintiff). Bosnia later filed actions against Serbia and Montenegro (collectively, Serbia) in the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Court of Justice (ICJ). Bosnia claimed that Serbia bore responsibility for the genocide because the forces were organs of the state. Alternatively, Bosnia claimed that Serbia bore responsibility because it directed the armed forces to commit genocide and the armed forces were within Serbia’s control. In response, Serbia introduced into evidence two international reports stating that Serbia’s Yugoslav army was uninvolved in the genocide. The ICTY found that the armed forces were not an organ of the state. However, the ICTY concluded that Serbia bore responsibility for the genocide because it had overall control of the armed forces, due to the fact that Serbia’s actions had resulted in the establishment of the armed forces. The overall-control test had been previously applied to determine whether a state bore responsibility for a nonstate entity’s attack on another state’s territory. Following the ICTY’s judgment, the ICJ considered whether the overall-control test was appropriate for situations of genocide.