Topic Summary

As the foremost arbitrator of international disputes, The International Court of Justice serves two primary functions: to settle legal contentions between two states on the basis of international law, and to provide advisory opinions on legal questions submitted by various international bodies, including the United Nations General Assembly. This simulation will focus on the former responsibility, in recreating the decision process of the 2007 case Bosnia and Herzegovina v. Serbia and Montenegro. Within the context of the Bosnian war, the 14 judges of this committee will deliberate upon these three key legal questions.

1. Do the killings at Srebrenica consist of genocide?
2. Is Serbia directly responsible for the Srebrenica massacre?
3. Did Serbia violate its obligations under the Genocide Convention by failing to prevent the massacre?

Topic History

With the fall of the Soviet Union throughout the early 1990s, communist ideology began to lose its potency across Eastern Europe, especially in the Socialist Federal Republic of Yugoslavia (SFRY). The SFRY was then comprised of 6 smaller Socialist Republics. Many of these Socialist Republics began to question remaining united under larger Yugoslavia with heated debates in Republic parliaments.

In the Socialist Republic of Bosnia and Herzegovina, a November 1990 round of elections produced the first multi-party parliament, though clear ethnopolitical divisions foreshadowed increasing civil strife. The residents of Bosnia and Herzegovina were deeply divided on whether or not to join other former SFRY Republics in declaring independence, with predominantly Orthodox ethnic Serbs favoring to remain in Yugoslavia, and predominantly Muslim Bosniaks and Catholic Croats favoring to seek independence.

In October 1991, tensions reached a breaking point, and Serb representatives left the Republic’s parliament to form their own assembly, which, in 1992, established a Serb sovereign state within Bosnia and Herzegovina, named Republika Srpska. The Bosnian central government held a referendum on the question of independence, which the majority of Serbs boycotted in protest. 99.7% of the voting electorate choose independence, and Bosnia and Herzegovina declared independence from the SFRY on March 2, 1992.

Watch: The Bosnian War and the Dayton Accords Explained

Bosnian Serbs began to militarize almost immediately, defecting from the federal Yugoslav People Army (JNA) to form the Army of Republika Srpska (VRS). VRS forces were able to capture a majority of Bosnia and Herzegovina very quickly, thanks to volunteer forces from neighboring Serbia and confiscated JNA stockpiles. The Bosnian Serb offensive was marked by bevy of human rights abuses, including a policy of ethnic cleansing of Muslim Bosniaks and Catholic Croats. VRS-controlled areas featured concentration camps, and large-scale killings of Bosniak and Croat citizens.

In July 1995, this campaign reached a fever pitch in the town of Srebrenica, where over 8,000 Muslim Bosniaks were executed under orders of VRS leader Ratko Mladic. A Serbian paramilitary unit, titled the Scorpions, additionally participated in the mass murder. The Scorpions had Serbian government origins, being founded by Jovica Stanisic, head of Serbian State Security Services. The Scorpions were also integrated into the Serbian Ministry of Internal Affairs at an unknown point in 1995. The Scorpions continued to take part in violence against non-Serb Bosnian populations to the end of the decade, including the Podujevo massacre in March 1999.

The Bosnian conflict reached a shaky peace deal in the Dayton Accords after NATO intervention effectively reduced VRS forces. The Dayton Agreement maintained Bosnia as a single state with a Croat federation and a Serb republic.

Recent estimates place the fatalities at around 100,000, the displaced persons at 2.2 million, and the number of women raped, the majority Bosniak, at 20,000. The Bosnian War was the most devastating conflict in Europe since the end of World War II.

International Law and Precedent  

In deliberating the questions at hand, it is necessary to examine current international law regarding genocide. The Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as any number of violent acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.” On the basis of the Convention’s obligations to prevent genocide, the ICJ issued two “provisional protective measures” to the Federal Republic of Yugoslavia in 1993 “to do everything in its power to prevent the crimes of genocide.”

To examine the relationship between the Serbian government and the Srebrenica massacre, it is also vital to recall past international legal precedent. In Nicaragua v. United States, the ICJ’s ruling created the “effective control test” to determine the legality of a relationship between a paramilitary group located in a foreign state and a government. The test states that the government must have “effective control of the operations in the course of which the alleged violations were committed.” Furthermore, The International Criminal Tribunal for the former Yugoslavia established the “overall control test” in its judgment of the case Prosecutor v. Dusko Tadic. The court ruled that a state must “exercise overall control over subordinate armed forces or militias or paramilitary units engaged in armed conflict with another State” and “the control required for those powers to be considered de facto State organs goes beyond the mere financing and equipping and involves also participation in the planning and supervision of military operations.”

Read This: Application of the Convention on the Prevention and Punishment of the Crime of Genocide

Questions to Consider

1. What is your judge’s stance?
2. How does your judge view defining the Srebrenica Massacre as genocide?
3. How does your judge view the relationship between the Scorpios and the Serbian government?
4. What evidence and/or legal analysis does your judge cite to support her positions?

Committee Positions

Committee Instructions

The International Court of Justice will operate as a specialized committee, utilizing adapted procedure from actual sessions of the ICJ. Judges will have the opportunity to ask questions about the facts of the case, engage in formal and informal debate on the topic, and draft Judgments to vote upon. These Judgments will answer all three legal questions posed to Court, and only one Judgment may be adopted by the Court via a simple majority. The passed Judgment will be known as the Court’s ruling.

The chair will be President Rosalyn Higgins, and facilitate the Court’s proceedings.

A crucial component to the simulation is every delegate’s complete understanding of her Judge’s approach to this case. It is highly recommended that every delegate read her Judge’s Declaration or Opinion on the case, which is available on the ICJ website. It should also be noted that a Judge may not have issued a Declaration or Opinion if their viewpoint is fully represented in the Court’s ruling.

The Court’s Ruling, the Vote Breakdown, and all Judges’ Declarations and Opinions: https://www.icj-cij.org/en/case/91/judgments 

The Court’s Summary: https://www.icj-cij.org/en/case/91/summaries