Bosnia v. Serbia: Lessons from the Encounter of the International Court of Justice with the International Criminal Tribunal for the Former Yugoslavia

Authors

Rebecca Hamilton, American University Washington College of LawFollow
Richard J. Goldstone

Document Type

Article

Publication Date

2008

Journal

Leiden Journal of International Law

Volume

21

Issue

1

Abstract

This article uses the recent judgment of the ICJ in Bosnia v. Serbia to highlight the potential problems that arise when international courts have to adjudicate on overlapping situations. It describes the dispute between the ICJ and the ICTY on the appropriate legal standard for the attribution of state responsibility, and finds that the ICJ’s approach in this case suggests that those keen to minimize the fragmentation of international law between adjudicative bodies should not overlook the need for consistency within those bodies.With regard to fact finding, this article raises serious concerns about the manner in which the ICJ relied on the ICTY’s work. The decision of the ICJ not to demand crucial documents from Serbia is discussed and criticized. Based on its approach to fact finding in this case, doubts are raised as to whether the ICJ will ever hold a state responsible for genocide outside the parameters of the prior criminal convictions of individual perpetrators.

Recommended Citation

Rebecca Hamilton & Richard J. Goldstone, Bosnia v. Serbia: Lessons from the Encounter of the International Court of Justice with the International Criminal Tribunal for the Former Yugoslavia, 21 Leiden Journal of International Law (2008).
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/1290