In the judgment concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina c. Serbia and Montenegro) case, delivered on 26 February 2007, the ICJ marked a landmark development with the assessment that States may be responsible, on the basis of the 1948 Genocide Convention, not only for failing to prosecute individuals responsible of acts of genocide, but also for committing themselves genocide or for ‘complicity’ in genocide. The judges solemnly asserted that the ICJ is fully independent in ascertaining States’ liability for acts of genocide and that its determinations do not depend on previous decisions delivered by a criminal tribunal. Notwithstanding these declarations of principle, the Court followed very closely the findings of the ICTY and indeed adopted a standard of proof that is even higher that the one adopted by the ICTY itself. As a consequence, the ICJ reached controversial conclusions. On one hand, the Court concluded that in the period 1992-1995 acts of genocide were committed only in Srebrenica in July 1995 as it deemed impossible to prove the mental element of genocide for other very serious criminal actions. As to the liability for the Srebrenica massacre, the ICJ not only considered impossible to attribute the genocidal acts to Serbia (formerly FRY), but again it deemed impossible to prove the mental element of ‘complicity’ in genocide, thus failing to make the appropriate distinctions between individual criminal liability and State responsibility.

Un passo avanti e due indietro: responsabilità individuale e responsabilità statale nella sentenza della Corte internazionale di giustizia nel caso Bosnia-Erzegovina c. Serbia / M.Frulli. - In: DIRITTI UMANI E DIRITTO INTERNAZIONALE. - ISSN 1971-7105. - STAMPA. - 1:(2007), pp. 579-593.

Un passo avanti e due indietro: responsabilità individuale e responsabilità statale nella sentenza della Corte internazionale di giustizia nel caso Bosnia-Erzegovina c. Serbia

FRULLI, MICAELA
2007

Abstract

In the judgment concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina c. Serbia and Montenegro) case, delivered on 26 February 2007, the ICJ marked a landmark development with the assessment that States may be responsible, on the basis of the 1948 Genocide Convention, not only for failing to prosecute individuals responsible of acts of genocide, but also for committing themselves genocide or for ‘complicity’ in genocide. The judges solemnly asserted that the ICJ is fully independent in ascertaining States’ liability for acts of genocide and that its determinations do not depend on previous decisions delivered by a criminal tribunal. Notwithstanding these declarations of principle, the Court followed very closely the findings of the ICTY and indeed adopted a standard of proof that is even higher that the one adopted by the ICTY itself. As a consequence, the ICJ reached controversial conclusions. On one hand, the Court concluded that in the period 1992-1995 acts of genocide were committed only in Srebrenica in July 1995 as it deemed impossible to prove the mental element of genocide for other very serious criminal actions. As to the liability for the Srebrenica massacre, the ICJ not only considered impossible to attribute the genocidal acts to Serbia (formerly FRY), but again it deemed impossible to prove the mental element of ‘complicity’ in genocide, thus failing to make the appropriate distinctions between individual criminal liability and State responsibility.
1
579
593
M.Frulli
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/2158/360656
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