State Responsibility for Genocide

In the past years international law has made strides in establishing individual responsibility for crimes against international law as one of its most fundamental principles. This year, however, provides us with the first opportunity for adjudication on state responsibility for genocide in the case brought before the International Court of Justice by Bosnia and Herzegovina against Serbia and Montenegro. This article attempts to provide a methodological approach for deciding the many issues raised by this case, mainly by focusing on a strict separation between primary and secondary rules of international law, with this approach being both theoretically and practically desirable. The article also deals with the question of state responsibility for acts of non-state actors on the basis of state de facto control. By applying this general methodology to the facts of the Genocide case, the article will show that the principal difficulties the Court will face if it decides to use this approach will not be in applying the relevant substantive law, but in establishing the facts and assessing the available evidence.