Of Dissonance and Silence; State Responsibility in the Bosnia Genocide Case

Abstract

If ‘Never Again’ is ever to be a reality, the international legal order must better respond to mass atrocity, and in particular to the conduct of States which support NSAs who commit international crimes. The fall of Srebrenica could have been the catalyst for important developments in the law of State responsibility. Instead, the Court’s decision in the Bosnia Genocide case was in some respects conservative, marked by dissonance and silence in its treatment of State responsibility for genocide. Dissonance in the sense of incongruity between the Court’s narrow approach to attribution and the more complex factual reality of international crimes committed by NSAs (with State support) during armed conflicts, and silence in the sense that international law (as applied by the Court) leaves key aspects of Serbia’s conduct out of the responsibility narrative. The purpose of this article is to articulate an alternative view of State responsibility, grounded in positive law (but perhaps to some extent nevertheless lex ferenda) which addresses that dissonance and silence, and better reflects the reality of mass atrocities committed with State support, such as those in Srebrenica. In particular, this article will advocate for a more flexible and context sensitive approach to attribution; and argue that there is a genuine gap in primary norms of international law (between the prohibition of complicity and the obligation to prevent) which might have been filled by the Court through reliance on implied obligations, using non-refoulement obligations as a model.