A crime without punishment

Abstract

In the judgement delivered in 2007 by the International Court of Justice (ICJ) on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, the Court, in an unprecedented move, declined to uphold the jurisdictional objections raised by the respondent state. By tackling the allegations of genocide brought against Serbia in relation to the events at Srebrenica in 1995, the Court departed from previous case law and did not shy away from its judicial responsibilities. The Court considered the possibility that a state is capable of committing the crime of genocide, as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). However, despite opening the door to this possibility, the ICJ failed to cross the threshold. The Court held that bodies of the Republika Srpska did not constitute public organs of the respondent state, Serbia. While this judgement concerns state responsibility as opposed to individual criminality, it represents the first instance that the Court considered whether a state is capable of committing a crime based on its failure to fulfil state obligations to prevent and suppress acts of genocide. This article offers observations on selected technical aspects of state responsibility, which arise from the judgement. The first subject addressed concerns the definition and identification of those facts that give rise to state responsibility. Thereafter, the question to whom these facts can be attributed is examined. Finally, the article analyses the issue of reparation. Overall, the ICJ has proved its capacity to address a case that lies at the intersection between criminal and classical public international law. The judgement's innovations endure despite that the Court failed to hold a state 'criminal' with respect to the events at Srebrenica.