A responsabilidade internacional por genocídio: limites da imputação estatal no caso Bósnia e Herzegovina vc Sérvia e Montenegro diante da Convenção de 1948

Abstract

This research analyzes the judgment of the International Court of Justice in the case Bosnia and Herzegovina v. Serbia and Montenegro (2007), the first precedent in which the Court recognized genocide in an interstate dispute, under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The study seeks to understand how, despite recognizing the Srebrenica massacre as genocide and a violation of a jus cogens norm, the Court established normative and evidentiary limits that restricted the full attribution of international responsibility to Serbia, particularly regarding its direct participation and possible complicity. To this end, it revisits the historical context of the breakup of Yugoslavia and the Bosnian war, highlighting the July 1995 Srebrenica massacre, in which more than 7,000 Bosnian Muslim men were executed. The analysis finds that the ICJ adopted restrictive criteria, such as the “effective control” test and the requirement of “fully conclusive evidence,” which limited Serbia’s direct accountability. However, the Court acknowledged Serbia’s violation of its positive obligations to prevent and punish genocide due to its omission and lack of cooperation with the International Criminal Tribunal for the Former Yugoslavia. Although the decision affirmed the peremptory nature of the prohibition of genocide, it reduced the practical scope of legal consequences by excluding material reparations and limiting the outcome to a formal declaration of violation. The study concludes that the judgment represents an ambiguous milestone: it strengthened genocide prevention but revealed the structural limitations of international law in holding states accountable in contexts of mass and indirect violence. Based on a qualitative, analytical, and exploratory approach, the research contributes to the debate on the effectiveness of the 1948 Genocide Convention, highlighting the need for doctrinal and interpretative developments to address crimes of such magnitude.