Genocide in Practice: What the Courts Have Made of the Convention

In one line

The Convention has been litigated four times at the International Court of Justice, and what the litigation has produced is a very demanding rule about proving intent and a surprisingly strong rule about the duty to prevent.

In the wording a student can write in an exam: article IX of the Convention gives the International Court of Justice jurisdiction over disputes relating to the interpretation, application or fulfilment of the Convention, INCLUDING THOSE RELATING TO THE RESPONSIBILITY OF A STATE FOR GENOCIDE. Four proceedings have been brought under it. In Bosnia and Herzegovina v. Serbia and Montenegro, 26 February 2007, the Court held that the killings at SREBRENICA in July 1995 were genocide, that the acts were not attributable to Serbia, but that Serbia had VIOLATED ITS OBLIGATION TO PREVENT genocide and its obligation to punish. In Croatia v. Serbia, 3 February 2015, the Court held the acts proved but the SPECIFIC INTENT not proved, and dismissed both the claim and the counter-claim. The Gambia v. Myanmar is pending on the merits after hearings in January 2026. And Ukraine v. Russian Federation is proceeding after a judgment on jurisdiction of 2 February 2024.

The obligations the Court has found in article I

Article I says the parties "undertake to PREVENT and to PUNISH". Until 2007 it was arguable that this was merely an introductory statement and that the operative obligations were the criminal ones in articles III to VI.

In Bosnia and Herzegovina v. Serbia and Montenegro, judgment of 26 February 2007, the Court held otherwise, and three of its findings should be given together.

One, Srebrenica was genocide. After extensive findings of fact the Court held that massive killings and other atrocities were perpetrated throughout the territory of Bosnia and Herzegovina but were NOT accompanied by the specific intent that defines genocide; and that THE KILLINGS IN SREBRENICA IN JULY 1995 WERE COMMITTED WITH THE SPECIFIC INTENT TO DESTROY IN PART THE GROUP OF BOSNIAN MUSLIMS IN THAT AREA, and that what happened there was genocide. There was corroborated evidence that the decision to kill the adult male population of the Muslim community in Srebrenica had been taken by some members of the VRS Main Staff.

Two, the acts were not attributable to Serbia. The evidence did not prove that the acts of the VRS could be attributed to the Respondent under the rules of the international law of State responsibility.

Three, and this is the holding that changed the law: Serbia violated the obligation TO PREVENT. The Court held that the obligation in article I requires States THAT ARE AWARE, OR SHOULD NORMALLY HAVE BEEN AWARE, OF THE SERIOUS DANGER THAT ACTS OF GENOCIDE WOULD BE COMMITTED, TO EMPLOY ALL MEANS REASONABLY AVAILABLE TO THEM to prevent genocide, within the limits permitted by international law. Serbia had not done so.