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

18 Pages Posted: 31 Aug 2011  

Richard J. Goldstone

Independent

Rebecca J. Hamilton

American University - Washington College of Law

Date Written: August 31, 2011

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.

Keywords: evidence, fact-finding, fragmentation of international law, genocide, International Court of Justice, International Criminal Tribunal for the former Yugoslavia

Suggested Citation

Goldstone, Richard J. and Hamilton, Rebecca J., Bosnia v. Serbia: Lessons from the Encounter of the International Court of Justice with the International Criminal Tribunal for the Former Yugoslavia (August 31, 2011). Available at SSRN: https://ssrn.com/abstract=1920293 or http://dx.doi.org/10.2139/ssrn.1920293

Richard J. Goldstone

Independent ( email )

No Address Available

Rebecca J. Hamilton (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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