Transnational Law
Julian Mortenson
Winter 2011
International Law-Bosnia Genocide Case
How do you deal with the system of international law on its own terms, when you are asked to apply it?
What structural components typically make up a domestic government?
a. Legislative
b. Judicial
c. Executive
Can we at least say that international law has a judicial branch?
· International Court of Justice
The Bosnia Genocide Case
· Who is the plaintiff? BOSNIA AND HERZEGOVINA
Not between private individuals but between sovereign nations.
· Who is the defendant? SERBIA AND MONTENEGRO.
· Source of Law
o The Genova Convention
§ Promulgated December 1948
§ In the wake of the Holocaust
§ 140 signatories today
§ Article I: Prevent and to punish parties for genocide
§ Article IX: ICJ will settle disputes relating to the responsibility of genocide.
· Was Genocide Committed at Srebrenica?
§ Article II-Definition of Genocide
§ Actus Reus- Article II
§ Mens Rea
Dolus Generalis- inherent in Art. II(a)-(e)
Dolus specialis- “intent to destroy, in whole or in part, a national, ethnical, racial or religious groups, as such.”
· But “only” a tiny % of all Muslims in Bosnia were killed at Srebrenica
1. Substantiality-significant enough to have an impact on group as a whole
2. Geographical Limitation
3. Qualitative assessment
ICJ therefore holds that Srebrenica was a genocide.
Croatia
Bosnia
Serbia<–But these guys are on trial at the ICJ
Republic Srpska<–these guys committed the genocide
· What are the Basic Grounds for State Liability Under the Convention?
· Direct Commission (Art. I + Art. IX)
§ Did Serbia Directly Commit Genocide?
· How can acts of Repulika Srpska be attributed to Serbia?
· Treated as “conduct of Serbia’s organs”
· De jure
· De facto (“complete dependence”
· Direction or control by Serbia
· Direct control of the specific operation
· Direct instruction for operation to take place
· Secondary Liability (Art. III)
· Omission
· Failure “to prevent” (Art. I)
· Failure “to punish” (Art. I)
§ Did Serbia Fail to Prevent and Punish Genocide?
· Today’s Thematic t
compliance contrary to their interests. IL emerges from states pursuing their interests to achieve mutually beneficial outcomes and sustained to the degree to which it continues to serve those interests. – Therefore states do not act contrary to state interest but mutually beneficial outcomes sustained to the degree which it continues to serve those interests.
ii. When IL changes, it’s because state interests changes due to change in tech, relative wealth or domestic government.
Genocide
Genocide Redux
a. Definition of Genocide
· Act element
· General intent
· Special intent (dolus specialis)
b. Attribution of state responsibility
· Commission by organ of [State]
· Under direction and control of [State]
c. Obligation to prevent & punish
Overview of Course
a. Sources of IL
b. Actors in IL
c. Allocation of Authority in IL
d. Adjudicating and Enforcing IL
· International Tribunals
· Domestic Courts
· International Arbitration
