http://www.icj-cij.org/icjwww/idocket/ibhy/ibhyjudgment/ibhy_ijudgment_20070226_frame.htm

   

   INTERNATIONAL COURT OF JUSTICE

   General List No. 91

   26 February 2007

   CASE CONCERNING THE APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE
   CRIME OF GENOCIDE (BOSNIA AND HERZEGOVINA v. SERBIA AND MONTENEGRO)

   The COURT, ...

   delivers the following Judgment:

   1. On 20 March 1993, the Government of the Republic of Bosnia and Herzegovina (with effect
   from 14 December 1995 “Bosnia and Herzegovina”) filed in the Registry of the Court an
   Application instituting proceedings against the Federal Republic of Yugoslavia (with effect
   from 4 February 2003, “Serbia and Montenegro” and with effect from 3 June 2006, the Republic
   of Serbia ⎯ see paragraphs 67 and 79 below) in respect of a dispute concerning alleged
   violations of the Convention on the Prevention and Punishment of the Crime of Genocide,
   adopted by the General Assembly of the United Nations on 9 December 1948 (hereinafter “the
   Genocide Convention” or “the Convention”), as well as various matters which Bosnia and
   Herzegovina claimed were connected therewith. The Application invoked Article IX of the
   Genocide Convention as the basis of the jurisdiction of the Court.

   

   

   64. In its Application, the following requests were made by Bosnia and Herzegovina:

   “Accordingly, while reserving the right to revise, supplement or amend this Application, and
   subject to the presentation to the Court of the relevant evidence and legal arguments, Bosnia
   and Herzegovina requests the Court to adjudge and declare as follows:

   (a) that Yugoslavia (Serbia and Montenegro) has breached, and is continuing to breach, its
   legal obligations toward the People and State of Bosnia and Herzegovina under Articles I, II
   (a), II (b), II (c), II (d), III (a), III (b), III (c), III (d), III (e), IV and V of the
   Genocide Convention;

   …

   (d) that Yugoslavia (Serbia and Montenegro), in breach of its obligations under general and
   customary international law, has killed, murdered, wounded, raped, robbed, tortured,
   kidnapped, illegally detained, and exterminated the citizens of Bosnia and Herzegovina, and is
   continuing to do so;

   …

    (r) that Yugoslavia (Serbia and Montenegro) has an obligation to pay Bosnia and Herzegovina,
   in its own right and as parens patriae for its citizens, reparations for damages to persons
   and property as well as to the Bosnian economy and environment caused by the foregoing
   violations of international law in a sum to be determined by the Court. Bosnia and Herzegovina
   reserves the right to introduce to the Court a precise evaluation of the damages caused by
   Yugoslavia (Serbia and Montenegro).”

   

   

   65. In the written proceedings, the following submissions were presented by the Parties:

   On behalf of the Government of Bosnia and Herzegovina,

   in the Memorial:

   “On the basis of the evidence and legal arguments presented in this Memorial, the Republic of
   Bosnia and Herzegovina, Requests the International Court of Justice to adjudge and declare,

   1. That the Federal Republic of Yugoslavia (Serbia and Montenegro), directly, or through the
   use of its surrogates, has violated and is violating the Convention on the Prevention and
   Punishment of the Crime of Genocide, by destroying in part, and attempting to destroy in
   whole, national, ethnical or religious groups within the, but not limited to the, territory of
   the Republic of Bosnia and Herzegovina, including in particular the Muslim population, by

   ⎯ killing members of the group;

   ⎯ causing deliberate bodily or mental harm to members of the group; deliberately
   inflicting on the group conditions of life calculated to bring about its physical destruction
   in whole or in part;

   ⎯ imposing measures intended to prevent births within the group;

   2. That the Federal Republic of Yugoslavia (Serbia and Montenegro) has violated and is
   violating the Convention on the Prevention and Punishment of the Crime of Genocide by
   conspiring to commit genocide, by complicity in genocide, by attempting to commit genocide and
   by incitement to commit genocide;

   3. That the Federal Republic of Yugoslavia (Serbia and Montenegro) has violated and is
   violating the Convention on the Prevention and Punishment of the Crime of Genocide by aiding
   and abetting individuals and groups engaged in acts of genocide;

   4. That the Federal Republic of Yugoslavia (Serbia and Montenegro) has violated and is
   violating the Convention on the Prevention and Punishment of the Crime of Genocide by virtue
   of having failed to prevent and to punish acts of genocide;

   5. That the Federal Republic of Yugoslavia (Serbia and Montenegro) must immediately cease the
   above conduct and take immediate and effective steps to ensure full compliance with its
   obligations under the Convention on the Prevention and Punishment of the Crime of Genocide;

   …

   On behalf of the Government of Serbia and Montenegro,

   in the Counter-Memorial1:

   “The Federal Republic of Yugoslavia requests the International Court of Justice to adjudge and
   declare:

   1. In view of the fact that no obligations established by the 1948 Convention on the
   Prevention and Punishment of the Crime of Genocide have been violated with regard to Muslims
   and Croats,

   ⎯ since the acts alleged by the Applicant have not been committed at all, or not to

   the extent and in the way alleged by the Applicant, or

   ⎯ if some have been committed, there was absolutely no intention of committing
   genocide, and/or

   ⎯ they have not been directed specifically against the members of one ethnic or
   religious group, i.e. they have not been committed against individuals just because they
   belong to some ethnic or religious group, consequently, they cannot be qualified as acts of
   genocide or other acts prohibited by the 1948 Convention on the Prevention and Punishment of
   the Crime of Genocide; and/or

   2. In view of the fact that the acts alleged by the Applicant in its submissions cannot be
   attributed to the Federal Republic of Yugoslavia,

   ⎯ since they have not been committed by the organs of the Federal Republic of
   Yugoslavia,

   ⎯ since they have not been committed on the territory of the Federal Republic of
   Yugoslavia,

   ⎯ since they have not been committed by the order or under control of the organs of the
   Federal Republic of Yugoslavia,

   ⎯ since there is no other grounds based on the rules of international law to consider
   them as acts of the Federal Republic of Yugoslavia, therefore the Court rejects all claims of
   the Applicant; and

   3. Bosnia and Herzegovina is responsible for the acts of genocide committed against the Serbs
   in Bosnia and Herzegovina and for other violations of the obligations established by the 1948
   Convention on the Prevention and Punishment of the Crime of Genocide,

   ⎯ because it has incited acts of genocide by the ‘Islamic Declaration’, and in
   particular by the position contained in it that ‘there can be no peace or coexistence between
   “Islamic faith” and “non-Islamic” social and political institutions’,

   …

   

   II. Identification of the respondent party

   67. The Court has first to consider a question concerning the identification of the Respondent
   party before it in these proceedings. After the close of the oral proceedings, by a letter
   dated 3 June 2006, the President of the Republic of Serbia informed the Secretary-General of
   the United Nations that, following the Declaration of Independence adopted by the National
   Assembly of Montenegro on 3 June 2006, “the membership of the state union Serbia and
   Montenegro in the United Nations, including all organs and organisations of the United Nations
   system, [would be] continued by the Republic of Serbia on the basis of Article 60 of the
   Constitutional Charter of Serbia and Montenegro”. He further stated that “in the United
   Nations the name ‘Republic of Serbia’ [was] to be henceforth used instead of the name ‘Serbia
   and Montenegro’” and added that the Republic of Serbia “remain[ed] responsible in full for all
   the rights and obligations of the state union of Serbia and Montenegro under the UN Charter”.

   …

   72. By a letter dated 29 November 2006, the Chief State Prosecutor of Montenegro, after
   indicating her capacity to act as legal representative of the Republic of Montenegro, referred
   to the letter from the Agent of Bosnia and Herzegovina dated 16 October 2006, quoted in the
   previous paragraph, expressing the view that “both Serbia and Montenegro, jointly and
   severally, are responsible for the unlawful conduct that constitute[s] the cause of action in
   this case”. …. The Chief State Prosecutor drew attention to the fact that, following the
   referendum held in Montenegro on 21 May 2006, the National Assembly of Montenegro had adopted
   a decision pronouncing the independence of the Republic of Montenegro. … the Republic of
   Montenegro had become “an independent state with full international legal personality within
   its existing administrative borders”, and she continued:

   “The issue of international-law succession of [the] State union of Serbia and Montenegro is
   regulated in Article 60 of [the] Constitutional Charter, and according to [that] Article the
   legal successor of [the] State union of Serbia and Montenegro is the Republic of Serbia,
   which, as a sovereign state, [has] become [the] follower of all international obligations and
   successor in international organizations.”

   The Chief State Prosecutor concluded that in the dispute before the Court, “the Republic of
   Montenegro may not have [the] capacity of respondent, [for the] above mentioned reasons”.

   

   III. The Court’s jurisdiction
                                                                                                
   str.32

   IV. The applicable law: the Convention on the Prevention and Punishment of the Crime of

   Genocide                                                                                                                 
   str.54

   VI. The facts invoked by the Applicant, in relation to Article II                           
   str.83

   

   (5) The massacre at Srebrenica

   278. The atrocities committed in and around Srebrenica are nowhere better summarized than in
   the first paragraph of the Judgment of the Trial Chamber in the Krstić case:

   “The events surrounding the Bosnian Serb take-over of the United Nations (‘UN’) ‘safe area’ of
   Srebrenica in Bosnia and Herzegovina, in July 1995, have become well known to the world.
   Despite a UN Security Council resolution declaring that the enclave was to be ‘free from armed
   attack or any other hostile act’, units of the Bosnian Serb Army (‘VRS’) launched an attack
   and captured the town. Within a few days, approximately 25,000 Bosnian Muslims, most of them
   women, children and elderly people who were living in the area, were uprooted and, in an
   atmosphere of terror, loaded onto overcrowded buses by the Bosnian Serb forces and transported
   across the confrontation lines into Bosnian Muslim-held territory. The military-aged Bosnian
   Muslim men of Srebrenica, however, were consigned to a separate fate. As thousands of them
   attempted to flee the area, they were taken prisoner, detained in brutal conditions and then
   executed. More than 7,000 people were never seen again.” (IT-98-33-T, Judgment, 2 August 2001,
   para. 1; footnotes omitted.) While the Respondent raises a question about the number of
   deaths, it does not essentially question that account. What it does question is whether
   specific intent (dolus specialis) existed and whether the acts complained of can be attributed
   to it. It also calls attention to the attacks carried out by the Bosnian army from within
   Srebrenica and the fact that the enclave was never demilitarized. In the Respondent’s view the
   military action taken by the Bosnian Serbs was in revenge and part of a war for territory.

   279. The Applicant contends that the planning for the final attack on Srebrenica must have
   been prepared quite some time before July 1995.

   …

   283. On 2 July the Commander of the Drina Corps issued an order for active combat operations;
   its stated objective on the Srebrenica enclave was to reduce “the enclave to its urban area”.
   The attack began on 6 July with rockets exploding near the Dutchbat headquarters in Potočari;
   7 and 8 July were relatively quiet because of poor weather, but the shelling intensified
   around 9 July. Srebrenica remained under fire until 11 July when it fell, with the Dutchbat
   observation posts having been taken by the VRS. Contrary to the expectations of the VRS, the
   Bosnia and Herzegovina army showed very little resistance (Blagojević, IT-02-60-T, Trial
   Chamber Judgment, 17 January 2005, para. 125). The United Nations Secretary-General’s report
   quotes an assessment made by United Nations military observers on the afternoon of 9 July
   which concluded as follows:

   “‘the BSA offensive will continue until they achieve their aims. These aims may even be
   widening since the United Nations response has been almost non-existent and the BSA are now in
   a position to overrun the enclave if they wish.’ Documents later obtained from Serb sources
   appear to suggest that this assessment was correct. Those documents indicate that the Serb
   attack on Srebrenica initially had limited objectives.

   Only after having advanced with unexpected ease did the Serbs decide to overrun the entire
   enclave. Serb civilian and military officials from the Srebrenica area have stated the same
   thing, adding, in the course of discussions with a United Nations official, that they decided
   to advance all the way to Srebrenica town when they assessed that UNPROFOR was not willing or
   able to stop them.” (A/54/549, para. 264.)

   Consistently with that conclusion, the Chamber in the Blagojević case says this:

   “As the operation progressed its military object changed from ‘reducing the enclave to the
   urban area’ [the objective stated in a Drina Corps order of 2 July] to the taking-over of
   Srebrenica town and the enclave as a whole. The Trial Chamber has heard no direct evidence as
   to the exact moment the military objective changed. The evidence does show that President
   Karadžić was ‘informed of successful combat operations around Srebrenica . . . which enable
   them to occupy the very town of Srebrenica’ on 9 July. According to Miroslav Deronjić, the
   President of the Executive Board of the Bratunac Municipality, President Karadžić told him on
   9 July that there were two options in relation to the operation, one of which was the complete
   take-over of Srebrenica. Later on 9 July, President Karadžić ‘agreed with continuation of
   operations for the takeover of Srebrenica’. By the morning of 11 July the change of objective
   of the ‘Krivaja 95’ operation had reached the units in the field; and by the middle of the
   afternoon, the order to enter Srebrenica had reached the Bratunac Brigades’s IKM in Pribićevac
   and Colonel Blagojević. Miroslav Deronjić visited the Bratunac Brigade IKM in Pribićevac on 11
   July. He briefly spoke with Colonel Blagojević about the Srebrenica operation. According to
   Miroslav Deronjić, the VRS had just received the order to enter Srebrenica town.” (IT-02-60-T,
   Trial Chamber Judgment, 17 January 2005, para. 130.)

   …

   291. The Court is fully persuaded that both killings within the terms of Article II (a) of the
   Convention, and acts causing serious bodily or mental harm within the terms of Article II (b)
   thereof occurred during the Srebrenica massacre. Three further aspects of the ICTY decisions
   relating to Srebrenica require closer examination ⎯ the specific intent (dolus
   specialis), the date by which the intent was formed, and the definition of the “group” in
   terms of Article II. A fourth issue which was not directly before the ICTY but which this
   Court must address is the involvement, if any, of the Respondent in the actions.

   292. The issue of intent has been illuminated by the Krstić Trial Chamber. In its findings, it
   was convinced of the existence of intent by the evidence placed before it. Under the heading
   “A Plan to Execute the Bosnian Muslim Men of Srebrenica”, the Chamber “finds that, following
   the takeover of Srebrenica in July 1995, the Bosnian Serbs devised and implemented a plan to
   execute as many as possible of the military aged Bosnian Muslim men present in the enclave”
   (IT-98-33-T, Judgment, 2 August 2001, para. 87). All the executions, the Chamber decided,
   “systematically targeted Bosnian Muslim men of military age, regardless of whether they were
   civilians or soldiers” (ibid., para. 546).

   …

   296. The Court now turns to the requirement of Article II that there must be the intent to
   destroy a protected “group” in whole or in part. It recalls its earlier statement of the law
   and in particular the three elements there discussed: substantiality (the primary
   requirement), relevant geographic factors and the associated opportunity available to the
   perpetrators, and emblematic or qualitative factors (paragraphs 197-201). Next, the Court
   recalls the assessment it made earlier in the Judgment of the persuasiveness of the ICTY’s
   findings of facts and its evaluation of them (paragraph 223). Against that background it turns
   to the findings in the Krstić case (IT-98-33-T, Trial Chamber Judgment, 2 August 2001, paras.
   551-599 and IT-98-33-A, Appeals Chamber Judgment, 19 April 2004, paras. 6-22), in which the
   Appeals Chamber endorsed the findings of the Trial Chamber in the following terms.

   “In this case, having identified the protected group as the national group of Bosnian Muslims,
   the Trial Chamber concluded that the part the VRS Main Staff and Radislav Krstić targeted was
   the Bosnian Muslims of Srebrenica, or the Bosnian Muslims of Eastern Bosnia. This conclusion
   comports with the guidelines outlined above. The size of the Bosnian Muslim population in
   Srebrenica prior to its capture by the VRS forces in 1995 amounted to approximately forty
   thousand people. This represented not only the Muslim inhabitants of the Srebrenica
   municipality but also many Muslim refugees from the surrounding region. Although this
   population constituted only a small percentage of the overall Muslim population of Bosnia and
   Herzegovina at the time, the importance of the Muslim community of Srebrenica is not captured
   solely by its size.” (IT-98-33-A, Judgment, 19 April 2004, para. 15; footnotes omitted.)

   297. The Court concludes that the acts committed at Srebrenica falling within Article II (a)
   and (b) of the Convention were committed with the specific intent to destroy in part the group
   of the Muslims of Bosnia and Herzegovina as such; and accordingly that these were acts of
   genocide committed by members of the VRS in and around Srebrenica from about 13 July 1995.

   

   

   VII. The question of responsibility for events at Srebrenica under Article III, paragraph (a),

   of the Genocide Convention                                     str.135

   (1) The alleged admission

   377. The Court first notes that the Applicant contends that the Respondent has in fact
   recognized that genocide was committed at Srebrenica, and has accepted legal responsibility
   for it. The Applicant called attention to the following official declaration made by the
   Council of Ministers of the Respondent on 15 June 2005, following the showing on a Belgrade
   television channel on 2 June 2005 of a video-recording of the murder by a paramilitary unit of
   six Bosnian Muslim prisoners near Srebrenica (paragraph 289 above). The statement reads as
   follows:

   “Those who committed the killings in Srebrenica, as well as those who ordered and organized
   that massacre represented neither Serbia nor Montenegro, but an undemocratic regime of terror
   and death, against whom the majority of citizens of Serbia and Montenegro put up the strongest
   resistance. Our condemnation of crimes in Srebrenica does not end with the direct
   perpetrators. We demand the criminal responsibility of all who committed war crimes, organized
   them or ordered them, and not only in Srebrenica. Criminals must not be heroes. Any protection
   of the war criminals, for whatever reason, is also a crime.” The Applicant requests the Court
   to declare that this declaration “be regarded as a form of admission and as having decisive
   probative force regarding the attributability to the Yugoslav State of the Srebrenica
   massacre”.

   378. It is for the Court to determine whether the Respondent is responsible for any acts of
   genocide which may be established. For purposes of a finding of this kind the Court may take
   into account any statements made by either party that appear to bear upon the matters in
   issue, and have been brought to its attention (cf. Nuclear Tests (Australia v. France),
   Judgments, I.C.J. Reports 1974, pp. 263 ff., paras. 32 ff.; (New Zealand v. France), ibid.,
   pp. 465 ff., paras. 27 ff.; Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J.
   Reports 1986, pp. 573-574, paras. 38-39), and may accord to them such legal effect as may be
   appropriate. However, in the present case, it appears to the Court that the declaration of 15
   June 2005 was of a political nature; it was clearly not intended as an admission, which would
   have had a legal effect in complete contradiction to the submissions made by the Respondent
   before this Court, both at the time of the declaration and subsequently. The Court therefore
   does not find the statement of 15 June 2005 of assistance to it in determining the issues
   before it in the case.

   * *

    (2) The test of responsibility

   379. In view of the foregoing conclusions, the Court now must ascertain whether the
   international responsibility of the Respondent can have been incurred, on whatever basis, in
   connection with the massacres committed in the Srebrenica area during the period in question.
   For the reasons set out above, those massacres constituted the crime of genocide within the
   meaning of the Convention. For this purpose, the Court may be required to consider the
   following three issues in turn. First, it needs to be determined whether the acts of genocide
   could be attributed to the Respondent under the rules of customary international law of State
   responsibility; this means ascertaining whether the acts were committed by persons or organs
   whose conduct is attributable, specifically in the case of the events at Srebrenica, to the
   Respondent. Second, the Court will need to ascertain whether acts of the kind referred to in
   Article III of the Convention, other than genocide itself, were committed by persons or organs
   whose conduct is attributable to the Respondent under those same rules of State
   responsibility: that is to say, the acts referred to in Article III, paragraphs (b) to (e),
   one of these being complicity in genocide. Finally, it will be for the Court to rule on the
   issue as to whether the Respondent complied with its twofold obligation deriving from Article
   I of the Convention to prevent and punish genocide.

   380. These three issues must be addressed in the order set out above, because they are so
   interrelated that the answer on one point may affect the relevance or significance of the
   others. Thus, if and to the extent that consideration of the first issue were to lead to the
   conclusion that some acts of genocide are attributable to the Respondent, it would be
   unnecessary to determine whether it may also have incurred responsibility under Article III,
   paragraphs (b) to (e), of the Convention for the same acts. Even though it is theoretically
   possible for the same acts to result in the attribution to a State of acts of genocide
   (contemplated by Art. III, para. (a)), conspiracy to commit genocide (Art. III, para. (b)),
   and direct and public incitement to commit genocide (Art. III, para. (c)), there would be
   little point, where the requirements for attribution are fulfilled under (a), in making a
   judicial finding that they are also satisfied under (b) and (c), since responsibility under
   (a) absorbs that under the other two. The idea of holding the same State responsible by
   attributing to it acts of “genocide” (Art. III, para. (a)), “attempt to commit genocide” (Art.
   III, para. (d)), and “complicity in genocide” (Art. III, para. (e)), in relation to the same
   actions, must be rejected as untenable both logically and legally.

   381. On the other hand, there is no doubt that a finding by the Court that no acts that
   constitute genocide, within the meaning of Article II and Article III, paragraph (a), of the
   Convention, can be attributed to the Respondent will not free the Court from the obligation to
   determine whether the Respondent’s responsibility may nevertheless have been incurred through
   the attribution to it of the acts, or some of the acts, referred to in Article III, paragraphs
   (b) to (e). In particular, it is clear that acts of complicity in genocide can be attributed
   to a State to which no act of genocide could be attributed under the rules of State
   responsibility, the content of which will be considered below.

   382. Furthermore, the question whether the Respondent has complied with its obligations to
   prevent and punish genocide arises in different terms, depending on the replies to the two
   preceding questions. It is only if the Court answers the first two questions in the negative
   that it will have to consider whether the Respondent fulfilled its obligation of prevention,
   in relation to the whole accumulation of facts constituting genocide. If a State is held
   responsible for an act of genocide (because it was committed by a person or organ whose
   conduct is attributable to the State), or for one of the other acts referred to in Article III
   of the Convention (for the same reason), then there is no point in asking whether it complied
   with its obligation of prevention in respect of the same acts, because logic dictates that a
   State cannot have satisfied an obligation to prevent genocide in which it actively
   participated. On the other hand, it is self-evident, as the Parties recognize, that if a State
   is not responsible for any of the acts referred to in Article III, paragraphs (a) to (e), of
   the Convention, this does not mean that its responsibility cannot be sought for a violation of
   the obligation to prevent genocide and the other acts referred to in Article III.

   383. Finally, it should be made clear that, while, as noted above, a State’s responsibility
   deriving from any of those acts renders moot the question whether it satisfied its obligation
   of prevention in respect of the same conduct, it does not necessarily render superfluous the
   question whether the State complied with its obligation to punish the perpetrators of the acts
   in question. It is perfectly possible for a State to incur responsibility at once for an act
   of genocide (or complicity in genocide, incitement to commit genocide, or any of the other
   acts enumerated in Article III) committed by a person or organ whose conduct is attributable
   to it, and for the breach by the State of its obligation to punish the perpetrator of the act:
   these are two distinct internationally wrongful acts attributable to the State, and both can
   be asserted against it as bases for its international responsibility.

   384. Having thus explained the interrelationship among the three issues set out above
   (paragraph 379), the Court will now proceed to consider the first of them. This is the
   question whether the massacres committed at Srebrenica during the period in question, which
   constitute the crime of genocide within the meaning of Articles II and III, paragraph (a), of
   the Convention, are attributable, in whole or in part, to the Respondent. This question has in
   fact two aspects, which the Court must consider separately. First, it should be ascertained
   whether the acts committed at Srebrenica were perpetrated by organs of the Respondent, i.e.,
   by persons or entities whose conduct is necessarily attributable to it, because they are in
   fact the instruments of its action. Next, if the preceding question is answered in the
   negative, it should be ascertained whether the acts in question were committed by persons who,
   while not organs of the Respondent, did nevertheless act on the instructions of, or under the
   direction or control of, the Respondent.

   

   (3) The question of attribution of the Srebrenica genocide to the Respondent on the basis of

   the conduct of its organs

   385. The first of these two questions relates to the well-established rule, one of the
   cornerstones of the law of State responsibility, that the conduct of any State organ is to be
   considered an act of the State under international law, and therefore gives rise to the
   responsibility of the State if it constitutes a breach of an international obligation of the
   State. This rule, which is one of customary international law, is reflected in Article 4 of
   the ILC Articles on State Responsibility as follows:

   “Article 4

   Conduct of organs of a State

   1. 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.”

   386. When applied to the present case, this rule first calls for a determination whether the
   acts of genocide committed in Srebrenica were perpetrated by “persons or entities” having the
   status of organs of the Federal Republic of Yugoslavia (as the Respondent was known at the
   time) under its internal law, as then in force. It must be said that there is nothing which
   could justify an affirmative response to this question. It has not been shown that the FRY
   army took part in the massacres, nor that the political leaders of the FRY had a hand in
   preparing, planning or in any way carrying out the massacres. It is true that there is much
   evidence of direct or indirect participation by the official army of the FRY, along with the
   Bosnian Serb armed forces, in military operations in Bosnia and Herzegovina in the years prior
   to the events at Srebrenica. That participation was repeatedly condemned by the political
   organs of the United Nations, which demanded that the FRY put an end to it (see, for example,
   Security Council resolutions 752 (1992), 757 (1992), 762 (1992), 819 (1993), 838 (1993)). It
   has however not been shown that there was any such participation in relation to the massacres
   committed at Srebrenica (see also paragraphs 278 to 297 above). Further, neither the Republika
   Srpska, nor the VRS were de jure organs of the FRY, since none of them had the status of organ
   of that State under its internal law.

   387. The Applicant has however claimed that all officers in the VRS, including General Mladić,
   remained under FRY military administration, and that their salaries were paid from Belgrade
   right up to 2002, and accordingly contends that these officers “were de jure organs of [the
   FRY], intended by their superiors to serve in Bosnia and Herzegovina with the VRS”. On this
   basis it has been alleged by the Applicant that those officers, in addition to being officers
   of the VRS, remained officers of the VJ, and were thus de jure organs of the Respondent
   (paragraph 238 above). The Respondent however asserts that only some of the VRS officers were
   being  “administered” by the 30th Personnel Centre in Belgrade, so that matters like their
   payment, promotion, pension, etc., were being handled from the FRY (paragraph 238 above); and
   that it has not been clearly established whether General Mladić was one of them. The Applicant
   has shown that the promotion of Mladić to the rank of Colonel General on 24 June 1994 was
   handled in Belgrade, but the Respondent emphasizes that this was merely a verification for
   administrative purposes of a promotion decided by the authorities of the Republika Srpska.

   388. The Court notes first that no evidence has been presented that either General Mladić or
   any of the other officers whose affairs were handled by the 30th Personnel Centre were,
   according to the internal law of the Respondent, officers of the army of the Respondent
   ⎯ a de jure organ of the Respondent. Nor has it been conclusively established that
   General Mladić was one of those officers; and even on the basis that he might have been, the
   Court does not consider that he would, for that reason alone, have to be treated as an organ
   of the FRY for the purposes of the application of the rules of State responsibility. There is
   no doubt that the FRY was providing substantial support, inter alia, financial support, to the
   Republika Srpska (cf. paragraph 241 above), and that one of the forms that support took was
   payment of salaries and other benefits to some officers of the VRS, but this did not
   automatically make them organs of the FRY. Those officers were appointed to their commands by
   the President of the Republika Srpska, and were subordinated to the political leadership of
   the Republika Srpska. In the absence of evidence to the contrary, those officers must be taken
   to have received their orders from the Republika Srpska or the VRS, not from the FRY. The
   expression “State organ”, as used in customary international law and in Article 4 of the ILC
   Articles, applies to one or other of the individual or collective entities which make up the
   organization of the State and act on its behalf (cf. ILC Commentary to Art. 4, para. (1)). The
   functions of the VRS officers, including General Mladić, were however to act on behalf of the
   Bosnian Serb authorities, in particular the Republika Srpska, not on behalf of the FRY; they
   exercised elements of the public authority of the Republika Srpska. The particular situation
   of General Mladić, or of any other VRS officer present at Srebrenica who may have been being
   “administered” from Belgrade, is not therefore such as to lead the Court to modify the
   conclusion reached in the previous paragraph.

   389. The issue also arises as to whether the Respondent might bear responsibility for the acts
   of the “Scorpions” in the Srebrenica area. In this connection, the Court will consider whether
   it has been proved that the Scorpions were a de jure organ of the Respondent. It is in dispute
   between the Parties as to when the “Scorpions” became incorporated into the forces of the
   Respondent. The Applicant has claimed that incorporation occurred by a decree of 1991 (which
   has not been produced as an Annex). The Respondent states that “these regulations [were]
   relevant exclusively for the war in Croatia in 1991” and that there is no evidence that they
   remained in force in 1992 in Bosnia and Herzegovina. The Court observes that, while the single
   State of Yugoslavia was disintegrating at that time, it is the status of the “Scorpions” in
   mid-1995 that is of relevance to the present case. In two of the intercepted documents
   presented by the Applicant (the authenticity of which was queried ⎯ see paragraph 289
   above), there is reference to the “Scorpions” as “MUP of Serbia” and “a unit of Ministry of
   Interiors of Serbia”. The Respondent identified the senders of these communications, Ljubiša
   Borovčanin and Savo Cvjetinović, as being “officials of the police forces of Republika
   Srpska”. The Court observes that neither of these communications was addressed to Belgrade.
   Judging on the basis of these materials, the Court is unable to find that the “Scorpions”
   were, in mid-1995, de jure organs of the Respondent. Furthermore, the Court notes that in any
   event the act of an organ placed by a State at the disposal of another public authority shall
   not be considered an act of that State if the organ was acting on behalf of the public
   authority at whose disposal it had been placed.

   390. The argument of the Applicant however goes beyond mere contemplation of the status, under
   the Respondent’s internal law, of the persons who committed the acts of genocide; it argues
   that Republika Srpska and the VRS, as well as the paramilitary militias known as the
   “Scorpions”, the “Red Berets”, the “Tigers” and the “White Eagles” must be deemed,
   notwithstanding their apparent status, to have been “de facto organs” of the FRY, in
   particular at the time in question, so that all of their acts, and specifically the massacres
   at Srebrenica, must be considered attributable to the FRY, just as if they had been organs of
   that State under its internal law; reality must prevail over appearances. The Respondent
   rejects this contention, and maintains that these were not de facto organs of the FRY.

   391. The first issue raised by this argument is whether it is possible in principle to
   attribute to a State conduct of persons ⎯ or groups of persons ⎯ who, while they
   do not have the legal status of State organs, in fact act under such strict control by the
   State that they must be treated as its organs for purposes of the necessary attribution
   leading to the State’s responsibility for an internationally wrongful act. The Court has in
   fact already addressed this question, and given an answer to it in principle, in its Judgment
   of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against
   Nicaragua (Nicaragua v. United States of America) (Merits, Judgment, I.C.J. Reports 1986, pp.
   62-64). In paragraph 109 of that Judgment the Court stated that it had to “determine . . .
   whether or not the relationship of the contras to the United States Government was so much one
   of dependence on the one side and control on the other that it would be right to equate the
   contras, for legal purposes, with an organ of the United States Government, or as acting on
   behalf of that Government” (p. 62).

   Then, examining the facts in the light of the information in its possession, the Court
   observed that “there is no clear evidence of the United States having actually exercised such
   a degree of control in all fields as to justify treating the contras as acting on its behalf”
   (para. 109), and went on to conclude that “the evidence available to the Court . . . is
   insufficient to demonstrate [the contras’] complete dependence on United States aid”, so that
   the Court was “unable to determine that the contra force may be equated for legal purposes
   with the forces of the United States” (pp. 62-63, para. 110).

   392. The passages quoted show that, according to the Court’s jurisprudence, persons, groups of
   persons or entities may, for purposes of international responsibility, be equated with State
   organs even if that status does not follow from internal law, provided that in fact the
   persons, groups or entities act in “complete dependence” on the State, of which they are
   ultimately merely the instrument. In such a case, it is appropriate to look beyond legal
   status alone, in order to grasp the reality of the relationship between the person taking
   action, and the State to which he is so closely attached as to appear to be nothing more than
   its agent: any other solution would allow States to escape their international responsibility
   by choosing to act through persons or entities whose supposed independence would be purely
   fictitious.

   393. However, so to equate persons or entities with State organs when they do not have that
   status under internal law must be exceptional, for it requires proof of a particularly great
   degree of State control over them, a relationship which the Court’s Judgment quoted above
   expressly described as “complete dependence”. It remains to be determined in the present case
   whether, at the time in question, the persons or entities that committed the acts of genocide
   at Srebrenica had such ties with the FRY that they can be deemed to have been completely
   dependent on it; it is only if this condition is met that they can be equated with organs of
   the Respondent for the purposes of its international responsibility.

   394. The Court can only answer this question in the negative. At the relevant time, July 1995,
   neither the Republika Srpska nor the VRS could be regarded as mere instruments through which
   the FRY was acting, and as lacking any real autonomy. While the political, military and
   logistical relations between the federal authorities in Belgrade and the authorities in Pale,
   between the Yugoslav army and the VRS, had been strong and close in previous years (see
   paragraph 238 above), and these ties undoubtedly remained powerful, they were, at least at the
   relevant time, not such that the Bosnian Serbs’ political and military organizations should be
   equated with organs of the FRY. It is even true that differences over strategic options
   emerged at the time between Yugoslav authorities and Bosnian Serb leaders; at the very least,
   these are evidence that the latter had some qualified, but real, margin of independence. Nor,
   notwithstanding the very important support given by the Respondent to the Republika Srpska,
   without which it could not have “conduct[ed] its crucial or most significant military and
   paramilitary activities” (I.C.J. Reports 1986, p. 63, para. 111), did this signify a total
   dependence of the Republika Srpska upon the Respondent.

   395. The Court now turns to the question whether the “Scorpions” were in fact acting in
   complete dependence on the Respondent. The Court has not been presented with materials to
   indicate this. The Court also notes that, in giving his evidence, General Dannatt, when asked
   under whose control or whose authority the paramilitary groups coming from Serbia were
   operating, replied, “they would have been under the command of Mladić and part of the chain of
   the command of the VRS”. The Parties referred the Court to the Stanišić and Simatović case
   (IT-03-69, pending); notwithstanding that the defendants are not charged with genocide in that
   case, it could have its relevance for illuminating the status of the “Scorpions” as Serbian
   MUP or otherwise. However, the Court cannot draw further conclusions as this case remains at
   the indictment stage. In this respect, the Court recalls that it can only form its opinion on
   the basis of the information which has been brought to its notice at the time when it gives
   its decision, and which emerges from the pleadings and documents in the case file, and the
   arguments of the Parties made during the oral exchanges.

   The Court therefore finds that the acts of genocide at Srebrenica cannot be attributed to the
   Respondent as having been committed by its organs or by persons or entities wholly dependent
   upon it, and thus do not on this basis entail the Respondent’s international responsibility.

   * *

    (4) The question of attribution of the Srebrenica genocide to the Respondent on the basis of

   direction or control

   396. As noted above (paragraph 384), the Court must now determine whether the massacres at
   Srebrenica were committed by persons who, though not having the status of organs of the
   Respondent, nevertheless acted on its instructions or under its direction or control, as the
   Applicant argues in the alternative; the Respondent denies that such was the case.

   397. The Court must emphasize, at this stage in its reasoning, that the question just stated
   is not the same as those dealt with thus far. It is obvious that it is different from the
   question whether the persons who committed the acts of genocide had the status of organs of
   the Respondent under its internal law; nor however, and despite some appearance to the
   contrary, is it the same as the question whether those persons should be equated with State
   organs de facto, even though not enjoying that status under internal law. The answer to the
   latter question depends, as previously explained, on whether those persons were in a
   relationship of such complete dependence on the State that they cannot be considered otherwise
   than as organs of the State, so that all their actions performed in such capacity would be
   attributable to the State for purposes of international responsibility. Having answered that
   question in the negative, the Court now addresses a completely separate issue: whether, in the
   specific circumstances surrounding the events at Srebrenica the perpetrators of genocide were
   acting on the Respondent’s instructions, or under its direction or control. An affirmative
   answer to this question would in no way imply that the perpetrators should be characterized as
   organs of the FRY, or equated with such organs. It would merely mean that the FRY’s
   international responsibility would be incurred owing to the conduct of those of its own organs
   which gave the instructions or exercised the control resulting in the commission of acts in
   breach of its international obligations. In other words, it is no longer a question of
   ascertaining whether the persons who directly committed the genocide were acting as organs of
   the FRY, or could be equated with those organs ⎯ this question having already been
   answered in the negative. What must be determined is whether FRY organs ⎯ incontestably
   having that status under the FRY’s internal law ⎯ originated the genocide by issuing
   instructions to the perpetrators or exercising direction or control, and whether, as a result,
   the conduct of organs of the Respondent, having been the cause of the commission of acts in
   breach of its international obligations, constituted a violation of those obligations.

   398. On this subject the applicable rule, which is one of customary law of international
   responsibility, is laid down in Article 8 of the ILC Articles on State Responsibility as
   follows:

   “Article 8

   Conduct directed or controlled by a State

   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.”

   399. This provision must be understood in the light of the Court’s jurisprudence on the
   subject, particularly that of the 1986 Judgment in the case concerning Military and
   Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)
   referred to above (paragraph 391). In that Judgment the Court, as noted above, after having
   rejected the argument that the contras were to be equated with organs of the United States
   because they were “completely dependent” on it, added that the responsibility of the
   Respondent could still arise if it were proved that it had itself “directed or enforced the
   perpetration of the acts contrary to human rights and humanitarian law alleged by the
   applicant State” (I.C.J. Reports 1986, p. 64, para. 115); this led to the following
   significant conclusion:

   “For this conduct to give rise to legal responsibility of the United States, it would in
   principle have to be proved that that State had effective control of the military or
   paramilitary operations in the course of which the alleged violations were committed.” (Ibid.,
   p. 65.)

   400. The test thus formulated differs in two respects from the test ⎯ described above
   ⎯ to determine whether a person or entity may be equated with a State organ even if not
   having that status under internal law. First, in this context it is not necessary to show that
   the persons who performed the acts alleged to have violated international law were in general
   in a relationship of “complete dependence” on the respondent State; it has to be proved that
   they acted in accordance with that State’s instructions or under its “effective control”. It
   must however be shown that this “effective control” was exercised, or that the State’s
   instructions were given, in respect of each operation in which the alleged violations
   occurred, not generally in respect of the overall actions taken by the persons or groups of
   persons having committed the violations.

   401. The Applicant has, it is true, contended that the crime of genocide has a particular
   nature, in that it may be composed of a considerable number of specific acts separate, to a
   greater or lesser extent, in time and space. According to the Applicant, this particular
   nature would justify, among other consequences, assessing the “effective control” of the State
   allegedly responsible, not in relation to each of these specific acts, but in relation to the
   whole body of operations carried out by the direct perpetrators of the genocide. The Court is
   however of the view that the particular characteristics of genocide do not justify the Court
   in departing from the criterion elaborated in the Judgment in the case concerning Military and
   Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (see
   paragraph 399 above). The rules for attributing alleged internationally wrongful conduct to a
   State do not vary with the nature of the wrongful act in question in the absence of a clearly
   expressed lex specialis. Genocide will be considered as attributable to a State if and to the
   extent that the physical acts constitutive of genocide that have been committed by organs or
   persons other than the State’s own agents were carried out, wholly or in part, on the
   instructions or directions of the State, or under its effective control. This is the state of
   customary international law, as reflected in the ILC Articles on State Responsibility.

   402. The Court notes however that the Applicant has further questioned the validity of
   applying, in the present case, the criterion adopted in the Military and Paramilitary
   Activities Judgment. It has drawn attention to the Judgment of the ICTY Appeals Chamber in the
   Tadić case (IT-94-1-A, Judgment, 15 July 1999). In that case the Chamber did not follow the
   jurisprudence of the Court in the Military and Paramilitary Activities case: it held that the
   appropriate criterion, applicable in its view both to the characterization of the armed
   conflict in Bosnia and Herzegovina as international, and to imputing the acts committed by
   Bosnian Serbs to the FRY under the law of State responsibility, was that of the “overall
   control” exercised over the Bosnian Serbs by the FRY; and further that that criterion was
   satisfied in the case (on this point, ibid., para. 145). In other words, the Appeals Chamber
   took the view that acts committed by Bosnian Serbs could give rise to international
   responsibility of the FRY on the basis of the overall control exercised by the FRY over the
   Republika Srpska and the VRS, without there being any need to prove that each operation during
   which acts were committed in breach of international law was carried out on the FRY’s
   instructions, or under its effective control. 403. The Court has given careful consideration
   to the Appeals Chamber’s reasoning in support of the foregoing conclusion, but finds itself
   unable to subscribe to the Chamber’s view.

   First, the Court observes that the ICTY was not called upon in the Tadić case, nor is it in
   general called upon, to rule on questions of State responsibility, since its jurisdiction is
   criminal and extends over persons only. Thus, in that Judgment the Tribunal addressed an issue
   which was not indispensable for the exercise of its jurisdiction. As stated above, the Court
   attaches the utmost importance to the factual and legal findings made by the ICTY in ruling on
   the criminal liability of the accused before it and, in the present case, the Court takes
   fullest account of the ICTY’s trial and appellate judgments dealing with the events underlying
   the dispute. The situation is not the same for positions adopted by the ICTY on issues of
   general international law which do not lie within the specific purview of its jurisdiction
   and, moreover, the resolution of which is not always necessary for deciding the criminal cases
   before it.

   404. This is the case of the doctrine laid down in the Tadić Judgment. Insofar as the “overall
   control” test is employed to determine whether or not an armed conflict is international,
   which was the sole question which the Appeals Chamber was called upon to decide, it may well
   be that the test is applicable and suitable; the Court does not however think it appropriate
   to take a position on the point in the present case, as there is no need to resolve it for
   purposes of the present Judgment. On the other hand, the ICTY presented the “overall control”
   test as equally applicable under the law of State responsibility for the purpose of
   determining ⎯ as the Court is required to do in the present case ⎯ when a State
   is responsible for acts committed by paramilitary units, armed forces which are not among its
   official organs. In this context, the argument in favour of that test is unpersuasive.

   405. It should first be observed that logic does not require the same test to be adopted in
   resolving the two issues, which are very different in nature: the degree and nature of a
   State’s involvement in an armed conflict on another State’s territory which is required for
   the conflict to be characterized as international, can very well, and without logical
   inconsistency, differ from the degree and nature of involvement required to give rise to that
   State’s responsibility for a specific act committed in the course of the conflict.

   406. It must next be noted that the “overall control” test has the major drawback of
   broadening the scope of State responsibility well beyond the fundamental principle governing
   the law of international responsibility: a State is responsible only for its own conduct, that
   is to say the conduct of persons acting, on whatever basis, on its behalf. That is true of
   acts carried out by its official organs, and also by persons or entities which are not
   formally recognized as official organs under internal law but which must nevertheless be
   equated with State organs because they are in a relationship of complete dependence on the
   State. Apart from these cases, a State’s responsibility can be incurred for acts committed by
   persons or groups of persons ⎯ neither State organs nor to be equated with such organs
   ⎯ only if, assuming those acts to be internationally wrongful, they are attributable to
   it under the rule of customary international law reflected in Article 8 cited above (paragraph
   398). This is so where an organ of the State gave the instructions or provided the direction
   pursuant to which the perpetrators of the wrongful act acted or where it exercised effective
   control over the action during which the wrong was committed. In this regard the “overall
   control” test is unsuitable, for it stretches too far, almost to breaking point, the
   connection which must exist between the conduct of a State’s organs and its international
   responsibility.

   407. Thus it is on the basis of its settled jurisprudence that the Court will determine
   whether the Respondent has incurred responsibility under the rule of customary international
   law set out in Article 8 of the ILC Articles on State Responsibility.

   *

   408. The Respondent has emphasized that in the final judgments of the Chambers of the ICTY
   relating to genocide in Srebrenica, none of its leaders have been found to have been
   implicated. The Applicant does not challenge that reading, but makes the point that that issue
   has not been before the ICTY for decision. The Court observes that the ICTY has indeed not up
   to the present been directly concerned in final judgments with the question whether those
   leaders might bear responsibility in that respect. The Court notes the fact that the report of
   the United Nations Secretary-General does not establish any direct involvement by President
   Milošević with the massacre. The Court has already recorded the contacts between Milošević and
   the United Nations on 10 and 11 July (paragraph 285). On 14 July, as recorded in the
   Secretary-General’s Report, “the European Union negotiator, Mr. Bildt, travelled to Belgrade
   to meet with President Milošević. The meeting took place at Dobanovci, the hunting lodge
   outside Belgrade, where Mr. Bildt had met President and General Mladić one week earlier.
   According to Mr. Bildt’s public account of that second meeting, he pressed the President to
   arrange immediate access for UNHCR to assist the people of Srebrenica, and for ICRC to start
   to register those who were being treated by the BSA as prisoners of war. He also insisted that
   the Netherlands soldiers be allowed to leave at will. Mr. Bildt added that the international
   community would not tolerate an attack on Goražde, and that a ‘green light’ would have to be
   secured for free and unimpeded access to the enclaves. He also demanded that the road between
   Kiseljak and Sarajevo (‘Route Swan’) be opened to all non-military transport. President
   Milošević apparently acceded to the various demands, but also claimed that he did not have
   control over the matter. Milošević had also apparently explained, earlier in the meeting, that
   the whole incident had been provoked by escalating Muslim attacks from the enclave, in
   violation of the 1993 demilitarization agreement. A few hours into the meeting, General Mladić
   arrived at Dobanovci. Mr. Bildt noted that General Mladić readily agreed to most of the
   demands on Srebrenica, but remained opposed to some of the arrangements pertaining to the
   other enclaves, Sarajevo in particular. Eventually, with President Milošević’s intervention,
   it appeared that an agreement in principle had been reached. It was decided that another
   meeting would be held the next day in order to confirm the arrangements. Mr. Bildt had already
   arranged with Mr. Stoltenberg and Mr. Akashi [the Special Representative of the
   Secretary-General] that they would join him in Belgrade. He also requested that the UNPROFOR
   Commander also come to Belgrade in order to finalize some of the military details with
   Mladić.” (A/54/549, paras. 372-373.)

   409. By 19 July, on the basis of the Belgrade meeting, Mr. Akashi was hopeful that both
   President Milošević and General Mladić might show some flexibility. The UNPROFOR Commander met
   with Mladić on 19 July and throughout the meeting kept in touch with Mr. Bildt who was holding
   parallel negotiations with President Milošević in Belgrade. Mladić gave his version of the
   events of the preceding days (his troops had “‘finished [it] in a correct way’”; some
   “‘unfortunate small incidents’ had occurred”). The UNPROFOR Commander and Mladić then signed
   an agreement which provided for “ICRC access to all ‘reception centres’ where the men and boys
   of Srebrenica were being held, by the next day; UNHCR and humanitarian aid convoys to be given
   access to Srebrenica; The evacuation of wounded from Potočari, as well as the hospital in
   Bratunac;

   The return of Dutchbat weapons and equipment taken by the BSA; The transfer of Dutchbat out of
   the enclave commencing on the afternoon of 21 July, following the evacuation of the remaining
   women, children and elderly who wished to leave. Subsequent to the signing of this agreement,
   the Special Representative wrote to President Milošević, reminding him of the agreement, that
   had not yet been honoured, to allow ICRC access to Srebrenica. The Special Representative
   later also telephoned President Milošević to reiterate the same point.” (Ibid., para. 392.)

   410. The Court was referred to other evidence supporting or denying the Respondent’s effective
   control over, participation in, involvement in, or influence over the events in and around
   Srebrenica in July 1995. The Respondent quotes two substantial reports prepared seven years
   after the events, both of which are in the public domain, and readily accessible. The first,
   Srebrenica a “safe” area, published in 2002 by the Netherlands Institute for War Documentation
   was prepared over a lengthy period by an expert team. The Respondent has drawn attention to
   the fact that this report contains no suggestion that the FRY leadership was involved in
   planning the attack or inciting the killing of non-Serbs; nor any hard evidence of assistance
   by the Yugoslav army to the armed forces of the Republika Srpska before the attack; nor any
   suggestion that the Belgrade Government had advance knowledge of the attack. The Respondent
   also quotes this passage from point 10 of the Epilogue to the Report relating to the “mass
   slaughter” and “the executions” following the fall of Srebrenica: “There is no evidence to
   suggest any political or military liaison with Belgrade, and in the case of this mass murder
   such a liaison is highly improbable.” The Respondent further observes that the Applicant’s
   only response to this submission is to point out that “the report, by its own admission, is
   not exhaustive”, and that this Court has been referred to evidence not used by the authors.

   411. The Court observes, in respect of the Respondent’s submissions, that the authors of the
   Report do conclude that Belgrade was aware of the intended attack on Srebrenica. They record
   that the Dutch Military Intelligence Service and another Western intelligence service
   concluded that the July 1995 operations were co-ordinated with Belgrade (Part III, Chap. 7,
   Sect. 7). More significantly for present purposes, however, the authors state that “there is
   no evidence to suggest participation in the preparations for executions on the part of
   Yugoslav military personnel or the security agency (RDB). In fact there is some evidence to
   support the opposite view . . .” (Part IV, Chap. 2, Sect. 20). That supports the passage from
   point 10 of the Epilogue quoted by the Respondent, which was preceded by the following
   sentence: “Everything points to a central decision by the General Staff of the VRS.”

   412. The second report is Balkan Battlegrounds, prepared by the United States Central
   Intelligence Agency, also published in 2002. The first volume under the heading “The
   Possibility of Yugoslav involvement” arrives at the following conclusion:

   “No basis has been established to implicate Belgrade’s military or security forces in the
   post-Srebrenica atrocities. While there are indications that the VJ or RDB [the Serbian State
   Security Department] may have contributed elements to the Srebrenica battle, there is no
   similar evidence that Belgrade-directed forces were involved in any of the subsequent
   massacres. Eyewitness accounts by survivors may be imperfect recollections of events, and
   details may have been overlooked.

   Narrations and other available evidence suggest that only Bosnian Serb troops were employed in
   the atrocities and executions that followed the military conquest of Srebrenica.” (Balkan
   Battlegrounds, p. 353.)

   The response of the Applicant was to quote an earlier passage which refers to reports which
   “suggest” that VJ troops and possibly elements of the Serbian State Security Department may
   have been engaged in the battle in Srebrenica ⎯ as indeed the second sentence of the
   passage quoted by the Respondent indicates. It is a cautious passage, and significantly gives
   no indication of any involvement by the Respondent in the post-conflict atrocities which are
   the subject of genocide-related convictions. Counsel for the Respondent also quoted from the
   evidence of the Deputy Commander of Dutchbat, given in the Milošević trial, in which the
   accused put to the officer the point quoted earlier from the Epilogue to the Netherlands
   report. The officer responded:

   “At least for me, I did not have any evidence that it was launched in co-operation with
   Belgrade. And again, I read all kinds of reports and opinions and papers where all kinds of
   scenarios were analysed, and so forth. Again, I do not have any proof that the action, being
   the attack on the enclave, was launched in co-operation with Belgrade.”

   The other evidence on which the Applicant relied relates to the influence, rather than the
   control, that President Milošević had or did not have over the authorities in Pale. It mainly
   consists of the evidence given at the Milošević trial by Lord Owen and General Wesley Clark
   and also Lord Owen’s publications. It does not establish a factual basis for finding the
   Respondent responsible on a basis of direction or control.

   * *

   (5) Conclusion as to responsibility for events at Srebrenica under Article III, paragraph (a),

   of the Genocide Convention

   413. In the light of the information available to it, the Court finds, as indicated above,
   that it has not been established that the massacres at Srebrenica were committed by persons or
   entities ranking as organs of the Respondent (see paragraph 395 above). It finds also that it
   has not been established that those massacres were committed on the instructions, or under the
   direction of organs of the Respondent State, nor that the Respondent exercised effective
   control over the operations in the course of which those massacres, which, as indicated in
   paragraph 297 above, constituted the crime of genocide, were perpetrated. The Applicant has
   not proved that instructions were issued by the federal authorities in Belgrade, or by any
   other organ of the FRY, to commit the massacres, still less that any such instructions were
   given with the specific intent (dolus specialis) characterizing the crime of genocide, which
   would have had to be present in order for the Respondent to be held responsible on this basis.
   All indications are to the contrary: that the decision to kill the adult male population of
   the Muslim community in Srebrenica was taken by some members of the VRS Main Staff, but
   without instructions from or effective control by the FRY.

   As for the killings committed by the “Scorpions” paramilitary militias, notably at Trnovo
   (paragraph 289 above), even if it were accepted that they were an element of the genocide
   committed in the Srebrenica area, which is not clearly established by the decisions thus far
   rendered by the ICTY (see, in particular, the Trial Chamber’s decision of 12 April 2006 in the
   Stanišić and Simatović case, IT-03-69), it has not been proved that they took place either on
   the instructions or under the control of organs of the FRY.

   414. Finally, the Court observes that none of the situations, other than those referred to in
   Articles 4 and 8 of the ILC’s Articles on State Responsibility, in which specific conduct may
   be attributed to a State, matches the circumstances of the present case in regard to the
   possibility of attributing the genocide at Srebrenica to the Respondent. The Court does not
   see itself required to decide at this stage whether the ILC’s Articles dealing with
   attribution, apart from Articles 4 and 8, express present customary international law, it
   being clear that none of them apply in this case. The acts constituting genocide were not
   committed by persons or entities which, while not being organs of the FRY, were empowered by
   it to exercise elements of the governmental authority (Art. 5), nor by organs placed at the
   Respondent’s disposal by another State (Art. 6), nor by persons in fact exercising elements of
   the governmental authority in the absence or default of the official authorities of the
   Respondent (Art. 9); finally, the Respondent has not acknowledged and adopted the conduct of
   the perpetrators of the acts of genocide as its own (Art. 11).

   415. The Court concludes from the foregoing that the acts of those who committed genocide at
   Srebrenica cannot be attributed to the Respondent under the rules of international law of
   State responsibility: thus, the international responsibility of the Respondent is not engaged
   on this basis.

   *

   * *

   VIII. The question of responsibility, in respect of Srebrenica, for acts enumerated in

   Article III, paragraphs (b) to (e), of the Genocide Convention

   416. The Court now comes to the second of the questions set out in paragraph 379 above,
   namely, that relating to the Respondent’s possible responsibility on the ground of one of the
   acts related to genocide enumerated in Article III of the Convention. These are: conspiracy to
   commit genocide (Art. III, para. (b)), direct and public incitement to commit genocide (Art.
   III, para. (c)), attempt to commit genocide (Art. III, para. (d)) ⎯ though no claim is
   made under this head in the Applicant’s final submissions in the present case ⎯ and
   complicity in genocide (Art. III, para. (e)). For the reasons already stated (paragraph 380
   above), the Court must make a finding on this matter inasmuch as it has replied in the
   negative to the previous question, that of the Respondent’s responsibility in the commission
   of the genocide itself.

   …

   418. A more delicate question is whether it can be accepted that acts which could be
   characterized as “complicity in genocide”, within the meaning of Article III, paragraph (e),
   can be attributed to organs of the Respondent or to persons acting under its instructions or
   under its effective control.

   This question calls for some preliminary comment.

   419. First, the question of “complicity” is to be distinguished from the question, already
   considered and answered in the negative, whether the perpetrators of the acts of genocide
   committed in Srebrenica acted on the instructions of or under the direction or effective
   control of the organs of the FRY. It is true that in certain national systems of criminal law,
   giving instructions or orders to persons to commit a criminal act is considered as the mark of
   complicity in the commission of that act. However, in the particular context of the
   application of the law of international responsibility in the domain of genocide, if it were
   established that a genocidal act had been committed on the instructions or under the direction
   of a State, the necessary conclusion would be that the genocide was attributable to the State,
   which would be directly responsible for it, pursuant to the rule referred to above (paragraph
   398), and no question of complicity would arise.

   But, as already stated, that is not the situation in the present case. However there is no
   doubt that “complicity”, in the sense of Article III, paragraph (e), of the Convention,
   includes the provision of means to enable or facilitate the commission of the crime; it is
   thus on this aspect that the Court must focus. In this respect, it is noteworthy that,
   although “complicity”, as such, is not a notion which exists in the current terminology of the
   law of international responsibility, it is similar to a category found among the customary
   rules constituting the law of State responsibility, that of the “aid or assistance” furnished
   by one State for the commission of a wrongful act by another State.

   420. In this connection, reference should be made to Article 16 of the ILC’s Articles on State
   Responsibility, reflecting a customary rule, which reads as follows:

   “Article 16

   Aid or assistance in the commission of an internationally wrongful act

   A State which aids or assists another State in the commission of an internationally wrongful
   act by the latter is internationally responsible for doing so if:

    (a) That State does so with knowledge of the circumstances of the internationally wrongful
   act; and

   (b) The act would be internationally wrongful if committed by that State.”

   Although this provision, because it concerns a situation characterized by a relationship
   between two States, is not directly relevant to the present case, it nevertheless merits
   consideration. The Court sees no reason to make any distinction of substance between
   “complicity in genocide”, within the meaning of Article III, paragraph (e), of the Convention,
   and the “aid or assistance” of a State in the commission of a wrongful act by another State
   within the meaning of the aforementioned Article 16 ⎯ setting aside the hypothesis of
   the issue of instructions or directions or the exercise of effective control, the effects of
   which, in the law of international responsibility, extend beyond complicity. In other words,
   to ascertain whether the Respondent is responsible for “complicity in genocide” within the
   meaning of Article III, paragraph (e), which is what the Court now has to do, it must examine
   whether organs of the respondent State, or persons acting on its instructions or under its
   direction or effective control, furnished “aid or assistance” in the commission of the
   genocide in Srebrenica, in a sense not significantly different from that of those concepts in
   the general law of international responsibility.

   421. Before the Court turns to an examination of the facts, one further comment is required.
   It concerns the link between the specific intent (dolus specialis) which characterizes the
   crime of genocide and the motives which inspire the actions of an accomplice (meaning a person
   providing aid or assistance to the direct perpetrators of the crime): the question arises
   whether complicity presupposes that the accomplice shares the specific intent (dolus
   specialis) of the principal perpetrator. But whatever the reply to this question, there is no
   doubt that the conduct of an organ or a person furnishing aid or assistance to a perpetrator
   of the crime of genocide cannot be treated as complicity in genocide unless at the least that
   organ or person acted knowingly, that is to say, in particular, was aware of the specific
   intent (dolus specialis) of the principal perpetrator. If that condition is not fulfilled,
   that is sufficient to exclude categorization as complicity. The Court will thus first consider
   whether this latter condition is met in the present case. It is only if it replies to that
   question of fact in the affirmative that it will need to determine the legal point referred to
   above.

   422. The Court is not convinced by the evidence furnished by the Applicant that the above
   conditions were met. Undoubtedly, the quite substantial aid of a political, military and
   financial nature provided by the FRY to the Republika Srpska and the VRS, beginning long
   before the tragic events of Srebrenica, continued during those events. There is thus little
   doubt that the atrocities in Srebrenica were committed, at least in part, with the resources
   which the perpetrators of those acts possessed as a result of the general policy of aid and
   assistance pursued towards them by the FRY. However, the sole task of the Court is to
   establish the legal responsibility of the Respondent, a responsibility which is subject to
   very specific conditions. One of those conditions is not fulfilled, because it is not
   established beyond any doubt in the argument between the Parties whether the authorities of
   the FRY supplied ⎯ and continued to supply ⎯ the VRS leaders who decided upon
   and carried out those acts of genocide with their aid and assistance, at a time when those
   authorities were clearly aware that genocide was about to take place or was under way; in
   other words that not only were massacres about to be carried out or already under way, but
   that their perpetrators had the specific intent characterizing genocide, namely, the intent to
   destroy, in whole or in part, a human group, as such.

   423. A point which is clearly decisive in this connection is that it was not conclusively
   shown that the decision to eliminate physically the adult male population of the Muslim
   community from Srebrenica was brought to the attention of the Belgrade authorities when it was
   taken; the Court has found (paragraph 295 above) that that decision was taken shortly before
   it was actually carried out, a process which took a very short time (essentially between 13
   and 16 July 1995), despite the exceptionally high number of victims. It has therefore not been
   conclusively established that, at the crucial time, the FRY supplied aid to the perpetrators
   of the genocide in full awareness that the aid supplied would be used to commit genocide.

   424. The Court concludes from the above that the international responsibility of the
   Respondent is not engaged for acts of complicity in genocide mentioned in Article III,
   paragraph (e), of the Convention. In the light of this finding, and of the findings above
   relating to the other paragraphs of Article III, the international responsibility of the
   Respondent is not engaged under Article III as a whole.

   *

   * *

   IX. The question of responsibility for breach of the obligations to prevent and punish

   genocide

   425. The Court now turns to the third and last of the questions set out in paragraph 379
   above: has the respondent State complied with its obligations to prevent and punish genocide
   under Article I of the Convention?

   Despite the clear links between the duty to prevent genocide and the duty to punish its
   perpetrators, these are, in the view of the Court, two distinct yet connected obligations,
   each of which must be considered in turn.

   …

   (1) The obligation to prevent genocide

   428. As regards the obligation to prevent genocide, the Court thinks it necessary to begin
   with the following introductory remarks and clarifications, amplifying the observations
   already made above.

   429. First, the Genocide Convention is not the only international instrument providing for an
   obligation on the States parties to it to take certain steps to prevent the acts it seeks to
   prohibit. Many other instruments include a similar obligation, in various forms: see, for
   example, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
   Punishment of 10 December 1984 (Article 2); the Convention on the Prevention and Punishment of
   Crimes against Internationally Protected Persons, Including Diplomatic Agents, of 14 December
   1973 (Art. 4); the Convention on the Safety of United Nations and Associated Personnel of 9
   December 1994 (Art. 11); the International Convention on the Suppression of Terrorist Bombings
   of 15 December 1997 (Art. 15). The content of the duty to prevent varies from one instrument
   to another, according to the wording of the relevant provisions, and depending on the nature
   of the acts to be prevented.

   …

   430. Secondly, it is clear that the obligation in question is one of conduct and not one of
   result, in the sense that a State cannot be under an obligation to succeed, whatever the
   circumstances, in preventing the commission of genocide: the obligation of States parties is
   rather to employ all means reasonably available to them, so as to prevent genocide so far as
   possible. A State does not incur responsibility simply because the desired result is not
   achieved; responsibility is however incurred if the State manifestly failed to take all
   measures to prevent genocide which were within its power, and which might have contributed to
   preventing the genocide. In this area the notion of “due diligence”, which calls for an
   assessment in concreto, is of critical importance.

   Various parameters operate when assessing whether a State has duly discharged the obligation
   concerned. The first, which varies greatly from one State to another, is clearly the capacity
   to influence effectively the action of persons likely to commit, or already committing,
   genocide. This capacity itself depends, among other things, on the geographical distance of
   the State concerned from the scene of the events, and on the strength of the political links,
   as well as links of all other kinds, between the authorities of that State and the main actors
   in the events. The State’s capacity to influence must also be assessed by legal criteria,
   since it is clear that every State may only act within the limits permitted by international
   law; seen thus, a State’s capacity to influence may vary depending on its particular legal
   position vis-`a-vis the situations and persons facing the danger, or the reality, of genocide.
   On the other hand, it is irrelevant whether the State whose responsibility is in issue claims,
   or even proves, that even if it had employed all means reasonably at its disposal, they would
   not have sufficed to prevent the commission of genocide. As well as being generally difficult
   to prove, this is irrelevant to the breach of the obligation of conduct in question, the more
   so since the possibility remains that the combined efforts of several States, each complying
   with its obligation to prevent, might have achieved the result ⎯ averting the
   commission of genocide ⎯ which the efforts of only one State were insufficient to
   produce.

   431. Thirdly, a State can be held responsible for breaching the obligation to prevent genocide
   only if genocide was actually committed. …

   432. Fourth and finally, the Court believes it especially important to lay stress on the
   differences between the requirements to be met before a State can be held to have violated the
   obligation to prevent genocide ⎯ within the meaning of Article I of the Convention
   ⎯ and those to be satisfied in order for a State to be held responsible for “complicity
   in genocide” ⎯ within the meaning of Article III, paragraph (e) ⎯ as previously
   discussed. There are two main differences; they are so significant as to make it impossible to
   treat the two types of violation in the same way. In the first place, as noted above,
   complicity always requires that some positive action has been taken to furnish aid or
   assistance to the perpetrators of the genocide, while a violation of the obligation to prevent
   results from mere failure to adopt and implement suitable measures to prevent genocide from
   being committed. In other words, while complicity results from commission, violation of the
   obligation to prevent results from omission; this is merely the reflection of the notion that
   the ban on genocide and the other acts listed in Article III, including complicity, places
   States under a negative obligation, the obligation not to commit the prohibited acts, while
   the duty to prevent places States under positive obligations, to do their best to ensure that
   such acts do not occur.

   In the second place, as also noted above, there cannot be a finding of complicity against a
   State unless at the least its organs were aware that genocide was about to be committed or was
   under way, and if the aid and assistance supplied, from the moment they became so aware
   onwards, to the perpetrators of the criminal acts or to those who were on the point of
   committing them, enabled or facilitated the commission of the acts. In other words, an
   accomplice must have given support in perpetrating the genocide with full knowledge of the
   facts. By contrast, a State may be found to have violated its obligation to prevent even
   though it had no certainty, at the time when it should have acted, but failed to do so, that
   genocide was about to be committed or was under way; for it to incur responsibility on this
   basis 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. As will be seen below, this latter
   difference could prove decisive in the present case in determining the responsibility incurred
   by the Respondent.

   433. In light of the foregoing, the Court will now consider the facts of the case. For the
   reasons stated above (paragraph 431), it will confine itself to the FRY’s conduct vis-`a-vis
   the Srebrenica massacres.

   434. The Court would first note that, during the period under consideration, the FRY was in a
   position of influence, over the Bosnian Serbs who devised and implemented the genocide in
   Srebrenica, unlike that of any of the other States parties to the Genocide Convention owing to
   the strength of the political, military and financial links between the FRY on the one hand
   and the Republika Srpska and the VRS on the other, which, though somewhat weaker than in the
   preceding period, nonetheless remained very close.

   435. Secondly, the Court cannot but note that, on the relevant date, the FRY was bound by very
   specific obligations by virtue of the two Orders indicating provisional measures delivered by
   the Court in 1993. In particular, in its Order of 8 April 1993, the Court stated, inter alia,
   that although not able, at that early stage in the proceedings, to make “definitive findings
   of fact or of imputability” (I.C.J. Reports 1993, p. 22, para. 44) the FRY was required to
   ensure:

   “that any military, paramilitary or irregular armed units which may be directed or supported
   by it, as well as any organizations and persons which may be subject to its control, direction
   or influence, do not commit any acts of genocide, of conspiracy to commit genocide, of direct
   and public incitement to commit genocide, or of complicity in genocide . . .” (ibid., p. 24,
   para. 52 A.(2)).

   The Court’s use, in the above passage, of the term “influence” is particularly revealing of
   the fact that the Order concerned not only the persons or entities whose conduct was
   attributable to the FRY, but also all those with whom the Respondent maintained close links
   and on which it could exert a certain influence. Although in principle the two issues are
   separate, and the second will be examined below, it is not possible, when considering the way
   the Respondent discharged its obligation of prevention under the Convention, to fail to take
   account of the obligation incumbent upon it, albeit on a different basis, to implement the
   provisional measures indicated by the Court.

   436. Thirdly, the Court recalls that although it has not found that the information available
   to the Belgrade authorities indicated, as a matter of certainty, that genocide was imminent
   (which is why complicity in genocide was not upheld above: paragraph 424), they could hardly
   have been unaware of the serious risk of it once the VRS forces had decided to occupy the
   Srebrenica enclave. Among the documents containing information clearly suggesting that such an
   awareness existed, mention should be made of the above-mentioned report (see paragraphs 283
   and 285 above) of the United Nations Secretary-General prepared pursuant to General Assembly
   resolution 53/35 on the “fall of Srebrenica” (United Nations doc. A/54/549), which recounts
   the visit to Belgrade on 14 July 1995 of the European Union negotiator Mr. Bildt to meet Mr.
   Milošević. Mr. Bildt, in substance, informed Mr. Milošević of his serious concern and “pressed
   the President to arrange immediate access for the UNHCR to assist the people of Srebrenica,
   and for the ICRC to start to register those who were being treated by the BSA [Bosnian Serb
   Army] as prisoners of war”.

   …

    (2) The obligation to punish genocide

   439. The Court now turns to the question of the Respondent’s compliance with its obligation to
   punish the crime of genocide stemming from Article I and the other relevant provisions of the
   Convention.

   440. In its fifth final submission, Bosnia and Herzegovina requests the Court to adjudge and
   declare:

   “5. That Serbia and Montenegro has violated and is violating its obligations under the
   Convention on the Prevention and Punishment of the Crime of Genocide for having failed and for
   failing to punish acts of genocide or any other act prohibited by the Convention on the
   Prevention and Punishment of the Crime of Genocide, and for having failed and for failing to
   transfer individuals accused of genocide or any other act prohibited by the Convention to the
   International Criminal Tribunal for the former Yugoslavia and to fully co-operate with this
   Tribunal.”

   441. This submission implicitly refers to Article VI of the Convention, according to which:

   “Persons charged with genocide or any of the other acts enumerated in article III shall be
   tried by a competent tribunal of the State in the territory of which the act was committed, or
   by such international penal tribunal as may have jurisdiction with respect to those
   Contracting Parties which shall have accepted its jurisdiction.”

   442. The Court would first recall that the genocide in Srebrenica, the commission of which it
   has established above, was not carried out in the Respondent’s territory. It concludes from
   this that the Respondent cannot be charged with not having tried before its own courts those
   accused of having participated in the Srebrenica genocide, either as principal perpetrators or
   as accomplices, or of having committed one of the other acts mentioned in Article III of the
   Convention in connection with the Srebrenica genocide. Even if Serbian domestic law granted
   jurisdiction to its criminal courts to try those accused, and even supposing such proceedings
   were compatible with Serbia’s other international obligations, inter alia its obligation to
   co-operate with the ICTY, to which the Court will revert below, an obligation to try the
   perpetrators of the Srebrenica massacre in Serbia’s domestic courts cannot be deduced from
   Article VI. Article VI only obliges the Contracting Parties to institute and exercise
   territorial criminal jurisdiction; while it certainly does not prohibit States, with respect
   to genocide, from conferring jurisdiction on their criminal courts based on criteria other
   than where the crime was committed which are compatible with international law, in particular
   the nationality of the accused, it does not oblige them to do so.

   443. It is thus to the obligation for States parties to co-operate with the “international
   penal tribunal” mentioned in the above provision that the Court must now turn its attention.
   For it is certain that once such a court has been established, Article VI obliges the
   Contracting Parties “which shall have accepted its jurisdiction” to co-operate with it, which
   implies that they will arrest persons accused of genocide who are in their territory ⎯
   even if the crime of which they are accused was committed outside it ⎯ and, failing
   prosecution of them in the parties’ own courts, that they will hand them over for trial by the
   competent international tribunal.

   444. In order to determine whether the Respondent has fulfilled its obligations in this
   respect, the Court must first answer two preliminary questions: does the ICTY constitute an
   “international penal tribunal” within the meaning of Article VI? And must the Respondent be
   regarded as having “accepted the jurisdiction” of the tribunal within the meaning of that
   provision?

   445. As regards the first question, the Court considers that the reply must definitely be in
   the affirmative. The notion of an “international penal tribunal” within the meaning of Article
   VI must at least cover all international criminal courts created after the adoption of the
   Convention (at which date no such court existed) of potentially universal scope, and competent
   to try the perpetrators of genocide or any of the other acts enumerated in Article III. The
   nature of the legal instrument by which such a court is established is without importance in
   this respect. When drafting the Genocide Convention, its authors probably thought that such a
   court would be created by treaty: a clear pointer to this lies in the reference to “those
   Contracting Parties which shall have accepted [the] jurisdiction” of the international penal
   tribunal. Yet, it would be contrary to the object of the provision to interpret the notion of
   “international penal tribunal” restrictively in order to exclude from it a court which, as in
   the case of the ICTY, was created pursuant to a United Nations Security Council resolution
   adopted under Chapter VII of the Charter. The Court has found nothing to suggest that such a
   possibility was considered by the authors of the Convention, but no intention of seeking to
   exclude it can be imputed to them.

   446. The question whether the Respondent must be regarded as having “accepted the
   jurisdiction” of the ICTY within the meaning of Article VI must consequently be formulated as
   follows: is the Respondent obliged to accept the jurisdiction of the ICTY, and to co-operate
   with the Tribunal by virtue of the Security Council resolution which established it, or of
   some other rule of international law? If so, it would have to be concluded that, for the
   Respondent, co-operation with the ICTY constitutes both an obligation stemming from the
   resolution concerned and from the United Nations Charter, or from another norm of
   international law obliging the Respondent to co-operate, and an obligation arising from its
   status as a party to the Genocide Convention, this last clearly being the only one of direct
   relevance in the present case.

   447. For the purposes of the present case, the Court only has to determine whether the FRY was
   under an obligation to co-operate with the ICTY, and if so, on what basis, from when the
   Srebrenica genocide was committed in July 1995. To that end, suffice it to note that the FRY
   was under an obligation to co-operate with the ICTY from 14 December 1995 at the latest, the
   date of the signing and entry into force of the Dayton Agreement between Bosnia and
   Herzegovina, Croatia and the FRY. Annex 1A of that treaty, made binding on the parties by
   virtue of its Article II, provides that they must fully co-operate, notably with the ICTY.
   Thus, from 14 December 1995 at the latest, and at least on the basis of the Dayton Agreement,
   the FRY must be regarded as having “accepted [the] jurisdiction” of the ICTY within the
   meaning of Article VI of the Convention. This fact is sufficient for the Court in its
   consideration of the present case, since its task is to rule upon the Respondent’s compliance
   with the obligation resulting from Article VI of the Convention in relation to the Srebrenica
   genocide, from when it was perpetrated to the present day, and since the Applicant has not
   invoked any failure to respect the obligation to co-operate alleged to have occurred
   specifically between July and December 1995. Similarly, the Court is not required to decide
   whether, between 1995 and 2000, the FRY’s obligation to co-operate had any legal basis besides
   the Dayton Agreement. Needless to say, the admission of the FRY to the United Nations in 2000
   provided a further basis for its obligation to co-operate: but while the legal basis concerned
   was thereby confirmed, that did not change the scope of the obligation. There is therefore no
   need, for the purposes of assessing how the Respondent has complied with its obligation under
   Article VI of the Convention, to distinguish between the period before and the period after
   its admission as a Member of the United Nations, at any event from 14 December 1995 onwards.

   448. Turning now to the facts of the case, the question the Court must answer is whether the
   Respondent has fully co-operated with the ICTY, in particular by arresting and handing over to
   the Tribunal any persons accused of genocide as a result of the Srebrenica genocide and
   finding themselves on its territory. In this connection, the Court would first observe that,
   during the oral proceedings, the Respondent asserted that the duty to co-operate had been
   complied with following the régime change in Belgrade in the year 2000, thus implicitly
   admitting that such had not been the case during the preceding period. The conduct of the
   organs of the FRY before the régime change however engages the Respondent’s international
   responsibility just as much as it does that of its State authorities from that date. Further,
   the Court cannot but attach a certain weight to the plentiful, and mutually corroborative,
   information suggesting that General Mladić, indicted by the ICTY for genocide, as one of those
   principally responsible for the Srebrenica massacres, was on the territory of the Respondent
   at least on several occasions and for substantial periods during the last few years and is
   still there now, without the Serb authorities doing what they could and can reasonably do to
   ascertain exactly where he is living and arrest him. In particular, counsel for the Applicant
   referred during the hearings to recent statements made by the Respondent’s Minister for
   Foreign Affairs, reproduced in the national press in April 2006, and according to which the
   intelligence services of that State knew where Mladić was living in Serbia, but refrained from
   informing the authorities competent to order his arrest because certain members of those
   services had allegedly remained loyal to the fugitive. The authenticity and accuracy of those
   statements has not been disputed by the Respondent at any time.

   449. It therefore appears to the Court sufficiently established that the Respondent failed in
   its duty to co-operate fully with the ICTY. This failure constitutes a violation by the
   Respondent of its duties as a party to the Dayton Agreement, and as a Member of the United
   Nations, and accordingly a violation of its obligations under Article VI of the Genocide
   Convention. The Court is of course without jurisdiction in the present case to declare that
   the Respondent has breached any obligations other than those under the Convention. But as the
   Court has jurisdiction to declare a breach of Article VI insofar as it obliges States to
   co-operate with the “international penal tribunal”, the Court may find for that purpose that
   the requirements for the existence of such a breach have been met. One of those requirements
   is that the State whose responsibility is in issue must have “accepted [the] jurisdiction” of
   that “international penal tribunal”; the Court thus finds that the Respondent was under a duty
   to co-operate with the tribunal concerned pursuant to international instruments other than the
   Convention, and failed in that duty. On this point, the Applicant’s submissions relating to
   the violation by the Respondent of Articles I and VI of the Convention must therefore be
   upheld.

   450. It follows from the foregoing considerations that the Respondent failed to comply both
   with its obligation to prevent and its obligation to punish genocide deriving from the
   Convention, and that its international responsibility is thereby engaged.

   …

   

   * *

   XII. Operative clause

   471. For these reasons,

   THE COURT,

   (1) by ten votes to five,

   Rejects the objections contained in the final submissions made by the Respondent to the effect
   that the Court has no jurisdiction; and affirms that it has jurisdiction, on the basis of
   Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, to
   adjudicate upon the dispute brought before it on 20 March 1993 by the Republic of Bosnia and
   Herzegovina;

    (2) by thirteen votes to two,

   Finds that Serbia has not committed genocide, through its organs or persons whose acts engage
   its responsibility under customary international law, in violation of its obligations under
   the Convention on the Prevention and Punishment of the Crime of Genocide;

    (3) by thirteen votes to two,

   Finds that Serbia has not conspired to commit genocide, nor incited the commission of
   genocide, in violation of its obligations under the Convention on the Prevention and
   Punishment of the Crime of Genocide;

    (4) by eleven votes to four,

   Finds that Serbia has not been complicit in genocide, in violation of its obligations under
   the Convention on the Prevention and Punishment of the Crime of Genocide;

   (5) by twelve votes to three,

   Finds that Serbia has violated the obligation to prevent genocide, under the Convention on the
   Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred
   in Srebrenica in July 1995;

    (6) by fourteen votes to one,

   Finds that Serbia has violated its obligations under the Convention on the Prevention and
   Punishment of the Crime of Genocide by having failed to transfer Ratko Mladić, indicted for
   genocide and complicity in genocide, for trial by the International Criminal Tribunal for the
   former Yugoslavia, and thus having failed fully to co-operate with that Tribunal;

    (7) by thirteen votes to two,

   Finds that Serbia has violated its obligation to comply with the provisional measures ordered
   by the Court on 8 April and 13 September 1993 in this case, inasmuch as it failed to take all
   measures within its power to prevent genocide in Srebrenica in July 1995;

    (8) by fourteen votes to one,

   Decides that Serbia shall immediately take effective steps to ensure full compliance with its
   obligation under the Convention on the Prevention and Punishment of the Crime of Genocide to
   punish acts of genocide as defined by Article II of the Convention, or any of the other acts
   proscribed by Article III of the Convention, and to transfer individuals accused of genocide
   or any of those other acts for trial by the International Criminal Tribunal for the former
   Yugoslavia, and to co-operate fully with that Tribunal;

    (9) by thirteen votes to two,

   Finds that, as regards the breaches by Serbia of the obligations referred to in subparagraphs
   (5) and (7) above, the Court’s findings in those paragraphs constitute appropriate
   satisfaction, and that the case is not one in which an order for payment of compensation, or,
   in respect of the violation referred to in subparagraph (5), a direction to provide assurances
   and guarantees of non-repetition, would be appropriate.