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Of Dissonance and Silence; State Responsibility in the Bosnia Genocide Case

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Abstract

If ‘Never Again’ is ever to be a reality, the international legal order must better respond to mass atrocity, and in particular to the conduct of States which support NSAs who commit international crimes. The fall of Srebrenica could have been the catalyst for important developments in the law of State responsibility. Instead, the Court’s decision in the Bosnia Genocide case was in some respects conservative, marked by dissonance and silence in its treatment of State responsibility for genocide. Dissonance in the sense of incongruity between the Court’s narrow approach to attribution and the more complex factual reality of international crimes committed by NSAs (with State support) during armed conflicts, and silence in the sense that international law (as applied by the Court) leaves key aspects of Serbia’s conduct out of the responsibility narrative. The purpose of this article is to articulate an alternative view of State responsibility, grounded in positive law (but perhaps to some extent nevertheless lex ferenda) which addresses that dissonance and silence, and better reflects the reality of mass atrocities committed with State support, such as those in Srebrenica. In particular, this article will advocate for a more flexible and context sensitive approach to attribution; and argue that there is a genuine gap in primary norms of international law (between the prohibition of complicity and the obligation to prevent) which might have been filled by the Court through reliance on implied obligations, using non-refoulement obligations as a model.

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Notes

  1. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 43.

  2. See Office of the United Nations High Commissioner for Human Rights, Report on the human rights situation in Iraq in the light of abuses committed by the so-called Islamic State in Iraq and the Levant and associated groups, 13 March 2015, UN Doc. A/HRC/28.18, para. 16.

  3. Akhavan (2012), p. viii.

  4. See e.g. Art. 1 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277 (hereinafter: Genocide Convention); Art. 1 Geneva Convention Relative to the Treatment of Prisoners of War of August 12 1949, 75 UNTS 135 (hereinafter: GCIII); Art. 1, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (hereinafter: API); Art. 2, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85 (hereinafter: CAT).

  5. Art. 16, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, in Report of the International Law Commission on the work of its fifty-third session, UN Doc. A/56/10 (2001), 31 (hereinafter: Articles on State Responsibility).

  6. For a commentary on this ‘hierarchical abstraction […] conferring meaning on suffering and injustice’, see Akhavan (2012).

  7. Art. 8 reads as follows: ‘The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct’.

  8. Prosecutor v. Tadić, ICTY Case No IT-94-1-A, Judgment, 15 July 1999, para. 120. The Appeals Chamber held that, where the State has a role in organising, coordinating or planning the military operations of a group, in addition to financing, training, equipping or providing operational support for such military operations, the conduct of those NSAs is attributable to the State on the basis of its ‘overall control’.

  9. See generally International Law Commission (2006), paras. 49–52 (in which the ILC qualified the ‘effective control’ vs ‘overall control’ debate as ‘fragmentation through conflicting interpretations of general law’).

  10. Bosnia Genocide case, para. 403.

  11. In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, ICJ Reports 1986, p. 14, the Court held that the attributability of the contras’ war crimes and crimes against humanity to the United States (US) hung on whether the US ‘had effective control of the military and paramilitary operations in the course of which the alleged violations were committed [emphasis added]’, para. 115.

  12. Bosnia Genocide case, para. 399.

  13. An example of just such a relevant but unhelpful distinction is that between substance and procedure, on which the Court rested its decision regarding exceptions to immunities in Germany v. Italy. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), ICJ Reports 2012, p. 99. For a comment on the decision in its heavy reliance on the substance/procedure distinction, see Trapp and Mills (2012).

  14. Bosnia Genocide case, para. 403.

  15. Bosnia Genocide case, para. 405.

  16. For a not entirely convincing critique of the ICTY’s reliance on Art. 4A GCIII as a basis for determining whether the conflict in Bosnia was international or non-international (and whether Serbia might bear responsibility for the conduct of the Vojska Republike Srpske (the Bosnian Serb Army or ‘VRS’), see Del Mar (2010). The point being made in this article is not one about whether or not the ICTY ought to have relied on Art. 4A GCIII for the purposes of determining the nature of the armed conflict (which determination then dictated applicable law for the purposes of determining individual criminal responsibility), but that given the ICTY did rely on Art. 4A GCIII, the relevance of its articulation of the ‘belonging to a party to the conflict’ standard in 4A GCIII to questions of State responsibility should not have been so easily dismissed.

  17. Crawford (2010), pp. 52–53.

  18. The definition of ‘armed forces’ in Art. 43 of API is broadly understood to encompass the forces covered by Art. 4A(2) GCIII (which is to say irregular or paramilitary forces). See Ipsen (2008), p. 85, para. 304. Just as the ICTY Appeals Chamber did in reference to irregular armed forces covered by Art. 4A(2), Art. 91 API draws the rather logical conclusion that States will bear responsibility for the IHL breaching conduct of their armed forces (as defined in Art. 43).

  19. Judge Simma quite rightly characterises the ‘Nicaragua—Tadić—Genocide Case’ drama as a ‘dialogue des sourds’. Simma (2009), p. 280.

  20. See generally Cassese (2007).

  21. Bosnia Genocide case, para. 403.

  22. Report of the ILC on the work of its fiftieth session, UN Doc. A/53/10 and Corr.1 (1998), 395. Indeed, the Art. 8 standard of ‘control’ (not ‘effective control’) has been read by both States and international tribunals deciding questions of State responsibility as flexible, allowing for an adaptable application depending on the particular context. See e.g. UN Doc. A/CN.4/515 (2001), 23 (the Netherlands); Bayindir Insaat Turizm Ve Sanayi AS v. Islamic Republic of Pakistan, ICSID Case No. ARB/03/29, Award, 27 August 2009, para. 130. See further Dupuy (2004), p. 10.

  23. Supra n. 11 and accompanying text.

  24. See Condorelli (1989); Reisman (1999), p. 39; Dinstein (2005), pp. 182–183; Slaughter and Burke-White (2002), p. 20; Becker (2006). For general remarks on whether ‘effective control’ remains the only standard of control, see Kress (2001). See also Brownlie (2008), p. 419, suggesting that attribution may take different forms, depending upon the primary rule applied.

  25. Trapp (2015).

  26. A State’s support of paramilitary activities in another State’s territory, for the purposes of overthrowing the Government or gaining territorial control, very clearly amounts to an independent internationally wrongful act, not least interference in the domestic affairs of another State, and is addressed as such in the Court’s Nicaragua judgment. In the Bosnia Genocide case, the Court does not address whether Serbia’s support for the VRS amounts to an unlawful intervention in Bosnia’s affairs (one of the wrongful acts listed by Bosnia in its Application, Bosnia Genocide case, para. 64) because its jurisdiction is limited to breaches of the Genocide Convention. But the issue for present purposes is distinct—it is whether that support (in addition to being an internationally wrongful act in its own right) is sufficient to satisfy the threshold for attribution in respect of the war crimes committed during the course of those paramilitary operations.

  27. In Nicaragua, the relevant international crimes committed by the contras during the course of their broader paramilitary operations were war crimes and crimes against humanity, and in the Bosnia Genocide case, the relevant international crime was the genocide committed by the VRS in Srebrenica (which is the subject of this Special Issue).

  28. Nicaragua, para. 115.

  29. See Nicaragua, paras. 101–102, 106, 108; Bosnia Genocide case, paras. 238–241, 388.

  30. Indeed, the capacity to prevent conduct, as an element of the attribution analysis (albeit in a different context), featured in the Dutch Supreme Court’s decision in State of the Netherlands v. Mustafic et al. 6 September 2013, ECLI:NL:HR:2013:BZ9228, English translation in Ryngaert (2013). See also Dannenbaum (2012) for a discussion of the ‘capacity to prevent’ element of attribution in that decision.

  31. Supra n. 8.

  32. Bosnia Genocide case, Dissenting Opinion of Judge Al-Khasawneh, from para. 39.

  33. While Art. 16 is inspired by principles of accessory responsibility in domestic contexts (both criminal responsibility and responsibility for inducing breach of contract in the civil context), Special Rapporteur Crawford’s analysis of complicity for the purposes of the international law of State responsibility addresses the distinctions between domestic and international legal systems. In particular, he accounts for the more robust control national legal systems have over contractual relations (as distinguished from that exercised over treaties at the international level), and the different approaches to third party interventions in domestic contractual relations as distinguished from the strict privity of treaty relations. Crawford (1999), paras. 182–184. Slightly trickier in adopting a rule on complicity in the context of State responsibility was the question of characterisation. While Art. 16 complicity can be framed as a prohibition, this quite naturally makes of it a primary rule, when it might be more accurately characterised as sitting somewhere between a primary rule (the prohibition is implicit in responsibility flowing from complicity) and a secondary rule defining the consequences of assistance in another actor’s breach of international law. On the question of characterisation, see Lanovoy (2014), pp. 5–6; Aust (2011), pp. 6, 188; Crawford (1999), paras. 164–165, 185–186; Graefrath (1996), p. 372.

  34. See de Frouville (2010), pp. 276–277, discussing the implications of dualism and the increasing pluralism of the international legal system (including its imposition of obligations on NSAs) in the debates about State responsibility for complicity with private conduct.

  35. Crawford (1999), paras. 181–184.

  36. Bosnia Genocide case, para. 420.

  37. The ICJ held, in its Bosnia Genocide case decision, that a State might only be held responsible for complicity in genocide through commission, while omission characterised a breach of the obligation to prevent. Bosnia Genocide case, para. 432. The Court’s finding on this particular point might be considered an interpretation of the prohibition on complicity in genocide as it exists in the Genocide Convention (and not an interpretation of Art. 16 on State Responsibility, given that the commentaries to Art. 16 do not restrict aid or assistance to commission, and is persuasively disputed in the literature). On the question of complicity in the form of an omission, see Aust (2011), §1.2.4.2; Lanovoy (2014), p. 11.

  38. Art. 16(a), Articles on State Responsibility.

  39. In reference to the obligation to prevent in the Genocide Convention, the Court holds that, for a State to incur responsibility, ‘it is enough that the State was aware, or should normally have been aware, of the serious danger that acts of genocide would be committed [emphasis added]’. Bosnia Genocide case, para. 432. While the Court takes care to restrict the scope of its decision to the obligation to prevent in its Genocide Convention incarnation (Bosnia Genocide case, para. 429), similar determinations have been made in respect of the obligation to prevent a risk from materialising in other human rights contexts. For instance, in the context of preventing life threatening harm within a State’s own territory, the European Court of Human Rights held that a positive obligation to take particular action arises once the authorities ‘knew or ought to have known […] of a real and immediate risk to the life of an identified individual […] and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk [emphasis added]’. ECtHR, Kilic v. Turkey (App. No. 22492/93), Judgment, 28 March 2000, para. 63.

  40. See Aust (2011), p. 332.

  41. See Trapp (2015), §3.2.2, for an earlier discussion of the way in which the Court’s approach to prevention in the Bosnia Genocide case opens up the possibilities for ‘shared responsibility’ between NSAs and States. This article develops that idea with a view to progressively developing the relevant primary rules.

  42. Bosnia Genocide case, para 422.

  43. Bosnia Genocide case, para. 438. Earlier in the judgment, the Court articulates the relevant knowledge requirement as the ‘State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed’ (ibid., para. 431) or ‘even though it had no certainty […] that genocide was about to be committed or was under way; […] the State was aware, or should normally have been aware, of the serious danger that acts of genocide would be committed’ (ibid., para. 432).

  44. The Court considers a ‘violation of the obligation to prevent [to] result […] from omission’. Bosnia Genocide case, para. 432.

  45. Articles on State Responsibility, p. 66, para. 4.

  46. Ibid.

  47. Sands (2006).

  48. Art. 3, CAT.

  49. Infra n. 51.

  50. House of Lords, RB (Algeria) v. Secretary of State for the Home Department, OO (Jordan) v. Secretary of State for the Home Department [2009] UKHL 10; ECtHR, Othman (Abu Qatada) v. The United Kingdom (App. No. 8139/09), Judgment, 17 January 2012.

  51. ECtHR, Soering v. United Kingdom, Judgment, 7 July 1989, para 88.

  52. Bosnia Genocide case, para. 166. The Court’s approach to treaty interpretation in the genocide context was broadly consistent with the practice of ‘interpreting’ an unexpressed treaty obligation into existence in the human rights context, both as discussed above and in reference to ‘procedural’ obligations implied from substantive norms for the purposes of ensuring the effectiveness of the substantive norm, and in reference to the constitutive treaties of International Organizations. For a discussion of the Court’s interpretive approach to implied obligations, see generally Trapp (2012).

  53. See e.g. Calabresi (1975); Wright (1985).

  54. Supra n. 39.

  55. Supra n. 3.

References

  • Akhavan P (2012) Reducing genocide to law: definition, meaning and the ultimate crime. Cambridge University Press, Cambridge

    Book  Google Scholar 

  • Aust HP (2011) Complicity and the law of state responsibility. Cambridge University Press, Cambridge

    Book  Google Scholar 

  • Becker T (2006) Terrorism and the state: rethinking the rules of state responsibility. Hart Publishing, Oxford

    Google Scholar 

  • Brownlie I (2008) Principles of public international law, 7th edn. Oxford University Press, Oxford

    Google Scholar 

  • Calabresi G (1975) Concerning cause and the law of torts. Univ Chic Law Rev 43:69–108

    Article  Google Scholar 

  • Cassese A (2007) The Nicaragua and Tadic tests revisited in light of the ICJ judgment on genocide in Bosnia. Eur J Int Law 18:649–668

    Article  Google Scholar 

  • Condorelli L (1989) The imputability to states of acts of international terrorism. Isr Yearb Hum Rights 19:233–246

    Google Scholar 

  • Crawford JR (1999) Second report on state responsibility. UN Doc. A/CN.4/498/Add.1 (1999)

  • Crawford JR (2010) The treatment of combatants and insurgents under the law of armed conflict. Oxford University Press, Oxford

    Book  Google Scholar 

  • Dannenbaum T (2012) Killings at Srebrenica, effective control, and the power to prevent unlawful conduct. Int Comp Law Q 16:713–727

    Article  Google Scholar 

  • De Frouville O (2010) Attribution of conduct to the state: private individuals. In: Crawford JR et al (eds) The law of international responsibility. Oxford University Press, Oxford, pp 255–289

    Google Scholar 

  • Del Mar K (2010) The requirement of ‘belonging’ under international humanitarian law. Eur J Int Law 21:105–124

    Article  Google Scholar 

  • Dinstein Y (2005) War, aggression and self-defence, 4th edn. Cambridge University Press, Cambridge

    Book  Google Scholar 

  • Dupuy P-M (2004) State sponsors of terrorism: issues of international responsibility. In: Bianchi A (ed) Enforcing international law norms against terrorism. Hart Publishing, Oxford

    Google Scholar 

  • Graefrath B (1996) Complicity in the law of international responsibility. Rev Belge de Droit Int 2:370–380

    Google Scholar 

  • International Law Commission (2006) Conclusions of the work of the Study Group on the Fragmentation of International Law: difficulties arising from the diversification and expansion of international law. Yearb Int Law Comm vol II, part 2

  • Ipsen K (2008) Combatants and non-combatants. In: Fleck (ed) The handbook of international humanitarian law. Oxford University Press, Oxford, pp 79–117

    Google Scholar 

  • Kress C (2001) L’organe de facto en droit international public. Rev Général de Droit Int Public 105:93–144

    Google Scholar 

  • Lanovoy V (2014) Complicity in an internationally wrongful act. Shares Research Paper 38. http://www.sharesproject.nl/publication/complicity-in-an-internationally-wrongful-act/. Accessed 29 June 2015

  • Reisman WM (1999) International legal responses to terrorism. Houston J Int Law 22:3–61

    Google Scholar 

  • Ryngaert C (2013) Netherlands judicial decisions on public international law ‘Supreme Court (Hoge Raad), State of the Netherlands v. Mustafic et al., State of the Netherlands v. Nuhanovic, Judgments of 6 September’. Neth Int Law Rev 60:441–446

    Article  Google Scholar 

  • Sands P (2006) Extraordinary rendition: complicity and its consequences, the United Nations, justice and the rule of law. Erskine Childers Memorial lecture. http://www.unitingforpeace.com/THE-UNITED-NATIONS-%20JUSTICE-AND-THE-RULE-OF-LAW.html. Accessed 29 June 2015

  • Simma B (2009) Universality of international law from the perspective of a practitioner. Eur J Int Law 20:265–297

    Article  Google Scholar 

  • Slaughter AM, Burke-White W (2002) An international constitutional moment. Harv Int Law J 43:1–21

    Google Scholar 

  • Trapp KN (2012) Holding states responsible for terrorism before the International Court of Justice. J Int Disput Settl 3:1–20

    Article  Google Scholar 

  • Trapp KN (2015) Shared responsibility and non-state terrorist actors. Neth Int Law Rev 62:141–160

    Google Scholar 

  • Trapp KN, Mills A (2012) Smooth runs the water where the brook is deep: the obscured complexities of Germany v Italy. Camb J Int Comp Law 1:153–168

    Article  Google Scholar 

  • Wright RW (1985) Causation in tort law. Calif Law Rev 73:1735–1828

    Article  Google Scholar 

Download references

Acknowledgments

I would like to thank Hitesh Dhorajiwala for his very helpful research assistance (it being understood that any errors remain my own).

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  1. Faculty of Laws, UCL, London, UK

    Kimberley N. Trapp (Senior Lecturer in Public International Law)

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Trapp, K.N. Of Dissonance and Silence; State Responsibility in the Bosnia Genocide Case. Neth Int Law Rev 62, 243–257 (2015). https://doi.org/10.1007/s40802-015-0031-0

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