Genocide Convention Case (Bosnia and Herzegovina v.

Yugoslavia)
Facts: The republics of Bosnia and Herzegovina (P), Croatia, Macedonia and Slovenia declared
independence when the Socialist Federal Republic of Yugoslavia began to break up in the early 1990s. this
led Serbia and Montenegro to declare themselves the Federal Republic of Yugoslavia (FRY) (D). A massacre
was perpetrated by Serbian forces on 8000 Bosnia Muslim men of fighting age in a small village called
Srebrenica in July 1995 during armed conflicts that arose in 1992-1995 within Bosnia and Herzegovina (P).
A suit was filed against the FRY (Serbia and Montenegro) (D) by Bosnia and Herzegovina (P) in 1993 in the
International Court of Justice, claiming violations of the Convention on the Prevention and Punishment of
the Crime of Genocide, on the theory that the FRY (D) was responsible for the actions of Serbian forces.
Issue: Under International law, is the conduct if any state organ considered an act of the state, which can
give rise to the responsibility of the state if the conduct constitutes a breach of an international obligation
of the state?
Held: Yes, under International law, the conduct of any state organ is to be considered an act of the state,
therefore giving rise to the responsibility of the state if the conduct constitutes a breach of an international
obligation of the state. This is a rule of customary international law that was codified in Article 4 of the ILC
Articles
of
State
responsibility.
No evidence showed that the Serbian forces were de jure organs of FRY (D) and this case did not show that
the army of the FRY (D) took part in the massacres or that the political leaders of the state had any part of
it. Though the FRY (D) was providing some sought of financial and other support to the Serbian forces, this
does
not
automatically
make
them
organs
of
the
FRY
(D).
Also, no evidence was provided to prove that the Serbs were under the effective control of FRY (D) while
conducting the massacre at Srebrenica. This can only imply that those who were responsible for the
massacre were not organs of the FRY (D) and the FRY (D) cannot take responsibility under international law
for the massacres

POINTS OF DISCUSSION RELATING TO JUS COGENS & ERGA OMNES

The Court first recalls that its jurisdiction in the case is based solely on Article IX of the Genocide
Convention, since all the other grounds of jurisdiction invoked by the Applicant were rejected in the 1996
Judgment on jurisdiction. Article IX provides that:
Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of
the present Convention, including those relating to the responsibility of a State for genocide or for any of
the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the
request of any of the parties to the dispute.
It follows that the Court may rule only on disputes between the States parties relating to the
interpretation, application or fulfilment of the Convention and that it has no power to rule on alleged
breaches of other obligations under international law, not amounting to genocide, particularly those
protecting human rights in armed conflict. That is so even if the alleged breaches are of obligations under
peremptory norms, or of obligations which protect essential humanitarian values, and which may be
owed erga omnes.

Obligations imposed by the Convention on the Contracting Parties

The Court notes that there exists a dispute between the Parties as to the meaning and the legal
scope of Article IX of the Convention, especially about whether the obligations the Convention imposes
upon the Parties are limited to legislate, and to prosecute or extradite, or whether the obligations of the
States parties extend to the obligation not to commit genocide and the other acts enumerated in Article III.
The Court observes that what obligations the Convention imposes upon the parties to it depends on
the ordinary meaning of the terms of the Convention read in their context and in the light of its object and
purpose. It reviews the wording of Article I, which provides inter alia that the Contracting Parties confirm
that genocide, whether committed in time of peace or in time of war, is a crime under international law
which they undertake to prevent and to punish. The Court finds that Article I, in particular its undertaking
to prevent, creates obligations distinct from those which appear in the subsequent Articles. This finding is
confirmed by the preparatory work of the Convention and the circumstances of its conclusion.
The Court then considers whether the Parties are under an obligation not to commit genocide
themselves since such an obligation is not expressly imposed by the actual terms of the Convention. In

the view of the Court, taking into account the established purpose of the Convention, the effects of Article I
is to prohibit States from themselves committing genocide. Such a prohibition follows, first, from the fact
that Article I categorizes genocide as a crime under international law: by agreeing to such a
categorization, the States parties must logically be undertaking not to commit the act so described.
Secondly, it follows from the expressly stated obligation to prevent the commission of acts of genocide. It
would be paradoxical, if States were thus under an obligation to prevent, but were not forbidden to commit
such acts through their own organs, or persons over whom they have such firm control that their conduct
is attributable to the State concerned under international law. In short, the obligation to prevent genocide
necessarily implies the prohibition of commission of genocide. The Court notes that its conclusion is
confirmed by one unusual feature of the wording of Article IX, namely the phrase including those disputes
relating to the responsibility of a State for genocide or any of the other acts enumerated in Article III.
According to the English text of the Convention, the responsibility contemplated is responsibility for
genocide, not merely responsibility for failing to prevent or punish genocide. The particular terms of the
phrase as a whole confirm that Contracting Parties may be held responsible for genocide and the other
acts enumerated in Article III of the Convention.
The Court subsequently discusses three further arguments which may be seen as contradicting the
proposition that the Convention imposes a duty on the Contracting Parties not to commit genocide and the
other acts enumerated in Article III.
The first is that, as a matter of principle, international law does not recognize the criminal
responsibility of the State, and the Genocide Convention does not provide a vehicle for the imposition of
such criminal responsibility. The Court observes that the obligation for which the Respondent may be held
responsible, in the event of breach, in proceedings under Article IX, is simply an obligation arising under
international law, in this case the provisions of the Convention, and that the obligations in question and the
responsibilities of States that would arise from breach of such obligations are obligations and
responsibilities under international law. They are not of a criminal nature.
The second is that the nature of the Convention is such as to exclude from its scope State
responsibility for genocide and the other enumerated acts. The Convention, it is said, is a standard
international criminal law convention focussed essentially on the criminal prosecution and punishment of
individuals and not on the responsibility of States. However, the Court sees nothing in the wording or the
structure of the provisions of the Convention relating to individual criminal liability which would displace
the meaning of Article I, read with paragraphs (a) to (e) of Article III, so far as these provisions impose
obligations on States distinct from the obligations which the Convention requires them to place on
individuals.
Concerning the third and final argument, the Court examines the drafting history of the
Convention, in the Sixth Committee of the General Assembly, which is said to show that there was no
question of direct responsibility of the State for acts of genocide. However, having reviewed said history,
the Court concludes that it may be seen as supporting the conclusion that Contracting Parties are bound
not to commit genocide, through the actions of their organs or persons or groups whose acts are
attributable to them.

Question whether the Court may make a finding of genocide by a State in the absence of a
prior conviction of an individual for genocide by a competent court?
The Court observes that if a State is to be responsible because it has breached its obligation not to
commit genocide, it must be shown that genocide as defined in the Convention has been committed. That
will also be the case with conspiracy under Article III, paragraph (b), and complicity under Article III,
paragraph (e); and, for purposes of the obligation to prevent genocide.
According to the Respondent, the condition sine qua non for establishing State responsibility is the
prior establishment, according to the rules of criminal law, of the individual responsibility of a perpetrator
engaging the State's responsibility.
In the view of the Court, the different procedures followed by, and powers available to, the Court
and to the courts and tribunals trying persons for criminal offences, do not themselves indicate that there
is a legal bar to the Court itself finding that genocide or the other acts enumerated in Article III have been
committed. Under its Statute the Court has the capacity to undertake that task, while applying the
standard of proof appropriate to charges of exceptional gravity. Turning to the terms of the Convention
itself, the Court has already held that it has jurisdiction under Article IX to find a State responsible if
genocide or other acts enumerated in Article III are committed by its organs, or persons or groups whose
acts are attributable to it.

The Court accordingly concludes that State responsibility can arise under the Convention for
genocide and complicity, without an individual being convicted of the crime or an associated one.

ARMED ACTIVITIES ON THE TERRITORY OF

(DEMOCRATIC REPUBLIC OF THE CONGO V RWANDA)

THE

CONGO

Facts: In the suit filed by the Republic of the Congo (DRC) (P) against Rwanda (D), the DRC (P) tried to
base the jurisdiction of the International Court of Justice on nine treaties with dispute settlement clauses
that provided for such jurisdiction. Of the nine treaties, Rwanda (D) excluded dispute settlement
obligations in seven of the treaties while it was not party to the remaining two. Based on the nature of its
obligations, Rwanda (D) challenged the jurisdiction of the International Court of Justice. The treaties
involved were Convention on Privileges, Immunities of the Specialized Agencies, Genocide Convention,
Article IX, Convention on Racial Discrimination against Women, Article 29, World Health Organization
Constitution, Article 75. Unesco Convention, Article XIV, Montreal Convention, Article 14, Vienna
Convention, Article 66 and Convention Against Torture. Rwanda (D) was not party to the first two treaties.
Issue: Does the International Court of Justice lacks jurisdiction based on a treaty in which one party to
such a treaty excludes disputes settlement obligations under the treaty before becoming a party and fails
to make formal acts to bring about withdrawal of the reservation?
Held: Yes, The International Court of Justice lacks jurisdiction based on a treaty in which one party to such
a treaty excludes dispute settlement obligations under the treaty before becoming a party and fails to take
formal acts to bring about withdrawal of the reservation.

Firstly as at the time of a 1993 peace agreement to withdrawing all reservations to human rights treaties,
Rwanda (D) may have committed itself, though this withdrawal was effectuated by the Rwanda (D)
minister of justice, Rwanda (D) never for once take formal acts to bring about withdrawal of reservation.
Deciding on whether to withdraw reservation with a states domestic legal order is not the same as
implementation of that decision by the national authorities within the international legal order, which can
only come to pass by notification to the other state parties to the parties in question through the
Secretary-General of the United Nations. Secondly, the existence of a dispute that implicates peremptory
norms of general international law does not imply that it is not part of the principles that jurisdiction
always relies on the consent of the parties. The treaty was however held not to form the basis of
jurisdiction because the DRC (P) failed to prove beyond reasonable doubt that it initiated arbitration
proceedings against Rwanda (D) under the Convention on Discrimination against Women.

POINTS OF DISCUSSION BY THE COURT

The DRC's first submission: use of force against the DRC
Having examined the materials put before it, the Court finds that it is clear that in the period preceding
August 1998 the DRC did not object to Uganda's military presence and activities in its eastern border area.
It however states that at the Victoria Falls Summit in August 1998 the DRC accused Rwanda and Uganda of
invading its territory. Thus, any earlier authorization or consent by the DRC to the presence of Ugandan
troops on its territory was at the latest withdrawn by 8 August 1998, i.e. the closing date of the Summit.
The Court states that it has not been established to its satisfaction that Uganda participated in the attack
on Kitona (which lies in the west of the DRC, some 1,800 km from the Ugandan frontier) on 4 August 1998.

It however finds that Uganda captured a number of locations in the east of the DRC and in other areas of
that country between August 1998 and early July 1999.
The Court finds that the Lusaka Agreement, the Kampala and Harare Disengagement Plans and the Luanda
Agreement did not (save for the limited exception regarding the border region of Mt Ruwenzori contained
in the latter) constitute consent by the DRC to the presence of Ugandan troops on its territory for the
period after July 1999, in the sense of validating that presence in law. The Court observes that the Lusaka
Agreement only represented an agreed modus operandi for the parties, providing a framework for orderly
withdrawal of all foreign forces from the DRC.
The Court does not accept Uganda's contention that its military actions from early August 1998 to July
1999 can be justified as actions in self-defence.
The Court concludes that Uganda has violated the sovereignty and also the territorial integrity of the DRC.
Uganda's actions equally constituted an interference in the internal affairs of the DRC and in the civil war
raging there. The unlawful military intervention by Uganda was of such magnitude and duration that the
Court considers it to be a grave violation of the prohibition on the use of force expressed in Article 2,
paragraph 4, of the Charter. The Court however states that there is no credible evidence to support the
DRC's allegation that Uganda created and controlled the Congo Liberation Movement (MLC), a rebel
movement led by Mr. Bemba.
The issue of belligerent occupation
The Court then considers the question as to whether or not Uganda was an occupying Power in the parts of
the Congolese territory where its troops were present at the relevant time. It observes that, under
customary international law, territory is considered to be occupied when it is actually placed under the
authority of the hostile army, and that the occupation extends only to the territory where such authority
has been established and can be exercised. In the present case, it has before it evidence sufficient to
prove that Uganda established and exercised authority in Ituri (a new province created in June 1999 by the
commander of the Ugandan forces in the DRC) as an occupying Power. As a consequence, the Court holds
that Uganda's responsibility is engaged both for any acts of its military that violated its international
obligations and for any lack of vigilance in preventing violations of human rights and international
humanitarian law by other actors present in Ituri, including rebel groups acting on their own account. It
further notes that Uganda at all times has responsibility for all actions and omissions of its own military
forces in the territory of the DRC in breach of its obligations under the rules of international human rights
law and international humanitarian law which are relevant and applicable in the specific situation.
The DRC's second submission: violations of international human rights law and international humanitarian
law
Having examined the case file, the Court considers that it has credible evidence sufficient to conclude that
the Ugandan armed forces, in the course of their military intervention, committed acts of killing, torture
and other forms of inhumane treatment of the civilian population, destroyed villages and civilian buildings,
failed to distinguish between civilian and military targets and to protect the civilian population in fighting
with other combatants, incited ethnic conflict and took no steps to put an end to such conflicts, was
involved in the training of child soldiers, and failed to take measures to ensure the respect for human
rights and international humanitarian law in Ituri.
The Court finds that these acts are in clear violation of the obligations under the Hague Regulations of
1907, which are binding on the Parties as customary international law, and of a number of international
humanitarian law and international human rights law instruments, to which both Uganda and the DRC are
parties.
The Court thus concludes that Uganda is internationally responsible for violations of international human
rights law and international humanitarian law committed by the UPDF and by its members in the territory
of the DRC and for failing to comply with its obligations as an occupying Power in Ituri in respect of
violations of international human rights law and international humanitarian law in the occupied territory.
The Court points out that, while it has pronounced on the violations of international human rights law and
international humanitarian law committed by Ugandan military forces on the territory of the DRC, it
nonetheless observes that the actions of the various parties in the complex conflict in the DRC have
contributed to the immense suffering faced by the Congolese population. The Court is painfully aware that
many atrocities have been committed in the course of the conflict. It is incumbent on all those involved in
the conflict to support the peace process in the DRC and other peace processes in the Great Lakes area, in
order to ensure respect for human rights in the region.

The DRC's third submission: illegal exploitation of natural resources and question of attributability to
Uganda
Having examined the case file, the Court finds that it has not been presented with credible evidence to
prove that there was a governmental policy of Uganda directed at the exploitation of the DRC's natural
resources, or that Uganda's military intervention was carried out in order to obtain access to Congolese
resources. At the same time, it considers that it has ample persuasive evidence to conclude that officers
and soldiers of the UPDF, including the most high-ranking officers, were involved in the looting, plundering
and exploitation of the DRC's natural resources and that the military authorities did not take any measures
to put an end to these acts.
Thus, the Court concludes that Uganda is internationally responsible for acts of looting, plundering and
exploitation of the DRC's natural resources committed by members of the UPDF in the territory of the DRC,
for violating its obligation of vigilance in regard to these acts and for failing to comply with its obligations
under Article 43 of the Hague Regulations of 1907 as an occupying Power in Ituri in respect of all acts of
looting, plundering and exploitation of natural resources in the occupied territory.
The DRC's fourth submission: legal consequences of violations of international obligations by Uganda
The Court does not find it established that Uganda, following the withdrawal of its troops from the territory
of the DRC in June 2003, has continued to commit internationally wrongful acts, as alleged by the DRC. The
Court accordingly concludes that the DRC's request that Uganda cease forthwith all "continuing
internationally wrongful acts" cannot be upheld.
As to the DRC's request that Uganda provide specific guarantees and assurances of non-repetition of the
wrongful acts, the Court refers to the commitments assumed by Uganda under the Tripartite Agreement on
Regional Security in the Great Lakes, signed on 26 October 2004 by the DRC, Rwanda and Uganda, and
concludes that they must be regarded as meeting the DRC's request. The Court expects and demands that
the Parties will respect and adhere to their obligations under this Agreement and under general
international law.
Finally, given the character of the internationally wrongful acts for which Uganda has been found
responsible, the Court considers that those acts resulted in injury to the DRC and to persons on its territory.
Consequently, the Court finds that Uganda has an obligation to make reparation for the injury caused. The
Court considers appropriate the request of the DRC for the nature, form and amount of the reparation due
to it to be determined by the Court, failing agreement between the Parties, in a subsequent phase of the
proceedings.
The DRC's fifth submission: compliance with the Court's Order on provisional measures
The Court examines the question whether Uganda has complied with its Order indicating provisional
measures of 1 July 2000. It states that the DRC did not put forward any specific evidence demonstrating
that after July 2000 Uganda committed acts in violation of the Order. The Court however observes that in
its Judgment it has found that Uganda is responsible for acts in violation of international humanitarian law
and international human rights law which were committed until 2 June 2003. The Court thus concludes that
Uganda did not comply with the Order.
The Court further notes that the provisional measures indicated in its Order were addressed to both
Parties. The Court's finding that Uganda did not comply with the Order is without prejudice to the question
as to whether the DRC did not also fail to comply with the provisional measures indicated.
Counter-Claims
The Court first finds that the DRC is entitled to challenge the admissibility of Uganda's counter-claims.
In its first counter-claim, Uganda contends that, since 1994, it has been the victim of military operations
and other destabilizing activities carried out by hostile armed groups based in the DRC and either
supported or tolerated by successive Congolese governments. In rebutting Uganda's first counter-claim,
the DRC divides it into three periods of time, corresponding to distinct factual and legal situations: (a) the
period prior to President Laurent-Dsir Kabila coming to power in May 1997; (b) the period starting from
the accession to power of President Kabila until 2 August 1998, the date on which Uganda's military attack
was launched; and (c) the period subsequent to 2 August 1998. It submits that, in so far as the alleged
claim that the DRC was involved in armed attacks against Uganda covers the first period, it is inadmissible
on the basis that Uganda renounced its right to invoke the international responsibility of the DRC (Zaire at
the time) in respect of acts dating back to that period; and, in the alternative, groundless. It further asserts
that the claim has no basis in fact for the second period and that it is not founded in fact or in law
regarding the third period.

With respect to the question of admissibility of the first part of the counter-claim, the Court observes that
nothing in the conduct of Uganda can be considered as implying an unequivocal waiver of its right to bring
a counter-claim relating to events which occurred during the Mobutu rgime. With respect to the merits of
that part of the counter-claim, the Court finds that Uganda has not produced sufficient evidence to show
that Zaire provided political and military support to anti-Ugandan rebel movements. With regard to the
second period, the Court finds that Uganda has failed to provide conclusive evidence of actual support for
anti-Ugandan rebel groups by the DRC. The Court notes that during this period, the DRC was in fact acting
together with Uganda against the rebels, not in support of them. In relation to the third period, the Court
considers that any military action taken by the DRC against Uganda during this period could not be
deemed wrongful since it would be justified as action taken in self-defense. Moreover, the Court has
already found that the alleged participation of DRC regular troops in attacks by anti-Ugandan rebels
against the UPDF and the alleged support to anti-Ugandan insurgents in this period cannot be considered
proven. The first counter-claim thus fails in its entirety.
In its second counter-claim, Uganda contends that Congolese armed forces attacked the premises of the
Ugandan Embassy, confiscated property belonging to the Government of Uganda, Ugandan diplomats and
Ugandan nationals; and maltreated diplomats and other Ugandan nationals present on the premises of the
mission and at Ndjili International Airport.
Addressing the DRC's objections to the admissibility of the counter-claim, the Court finds that its Order of
29 November 2001 did not preclude Uganda from invoking the Vienna Convention on Diplomatic Relations,
since the formulation of the Order was sufficiently broad to encompass claims based on the Convention. It
further observes that the substance of the part of the counter-claim relating to acts of maltreatment
against other persons on the premises of the Embassy falls within the ambit of Article 22 of the Convention
and is admissible. It however states that the other part relating to the maltreatment of persons not
enjoying diplomatic status at Ndjili International Airport as they attempted to leave the country is based on
diplomatic protection and that, in the absence of evidence with respect to the Ugandan nationality of the
persons in question, that part of the counter-claim is inadmissible.
With respect to the merits of the counter-claim, the Court finds that there is sufficient evidence to prove
that there were attacks against the Embassy and acts of maltreatment against Ugandan diplomats on the
Embassy premises and at Ndjili International Airport. It concludes that, by committing those acts, the DRC
breached its obligations under Articles 22 and 29 of the Vienna Convention on Diplomatic Relations. The
Court further states that the removal of property and archives from the Ugandan Embassy was in violation
of the rules of international law on diplomatic relations. It however points out that it would only be at a
subsequent phase, failing an agreement between the Parties, that the specific circumstances of these
violations, as well as the precise damage suffered by Uganda and the extent of the reparation to which it is
entitled, would have to be demonstrated.

NUCLEAR TESTS CASE ( AUSTRALIA V FRANCE & NEW ZEALAND V

FRANCE)
Facts: A series of nuclear tests was completed by France (D) in the South Pacific. This action made
Australia and New Zealand (P) to apply to the I.C.J. demanding that France (D) cease testing immediately.
Before the case could be completed, France (D) announced it had completed the test and did not plan any
further test. So France (D) moved for the dismissal of the application.
Issue: May declaration made through unilateral act has effect of creating legal obligations?
Held: Yes. Declaration made through unilateral acts may have the effect of creating legal obligations. In
this case, the statement made by the President of France must be held to constitute an engagement of the
State in regard to the circumstances and intention with which they were made. Therefore, these statement
made by the France (D) are relevant and legally binding. Application was dismissed.
The unilateral statements made by French authorities were first relayed to the government of Australia.
There was no need for the statements to be directed to any particular state for it to have legal effect. The
general nature and characteristics of the statements alone were relevant for evaluation of their legal
implications.
POINTS OF DISCUSSION

In its judgment in the case, the Court, by 9 votes to 6, has found that the claim of Australia no longer had
any object and that the Court was therefore not called upon to give a decision thereon.

In the reasoning of its Judgment, the Court adduces inter alia the following considerations: Even before
turning to the questions of jurisdiction and admissibility, the Court has first to consider the essentially
preliminary question as to whether a dispute exists and to analyze the claim submitted to it; the
proceedings instituted before the Court on 9 May 1973 concerned the legality of atmospheric nuclear tests
conducted by France in the South Pacific; the original and ultimate objective of Australia is to obtain a
termination of those tests; France, by various public statements made in 1974, has announced its
intention, following the completion of the 1974 series of atmospheric tests, to cease the conduct of such
tests; the Court finds that the objective of Australia has in effect been accomplished, inasmuch as France
has undertaken the obligation to hold no further nuclear tests in the atmosphere in the South Pacific; the
dispute having thus disappeared, the claim no longer has any object and there is nothing on which to give
judgment. Upon the delivery of the Judgment, the Order of 22 June 1973 indicating interim measures of
protection ceases to be operative and the measures in question lapse