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The killings outlined above may amount to war crimes and crimes against humanity, but the Court has no jurisdiction to determine whether this is so. The genocidal intent of the Bosnian Serb leadership can be inferred from all the evidence, including the evidence set out in paragraphs — The scale and pattern of the attacks, their intensity, the substantial number of Muslims killed in the seven municipalities, the detention of Muslims, their brutal treatment in detention centres and elsewhere, and the targeting of persons essential to the survival of the Muslims as a group are all factors that point to genocide.
Initially dismissed by the Trial Chamber on 28 June this count was unanimously reinstated on 11 July by the Appeals Chamber. They are also charged with murder, deportation, inhumane acts, spreading terror among civilians, unlawful attacks on civilians, and taking of hostages. Bosnia and Herzegovina v. First, as far as the jurisdictional part of the decision goes, the court has been severely criticized for unjustifiably over-stretching the concept of res judicata to decisions on jurisdiction rendered at an earlier stage of the same proceedings; for over-relying on legal conclusions that were decided at earlier stages without serious consideration; and for narrowly construing its powers of revision.
Indeed, seven out of the fifteen judges on the bench expressed varying degrees of unease with this particular outcome. Second, as for the actual findings on the commission of genocide, some writers have criticized the court for refusing to look at the 'bigger picture' of the events in Bosnia — a picture that seems to suggest that the various atrocious crimes meted out by the Bosnian Serbs were all part of the same 'master-plan' of creating an ethnically homogeneous Serbian state.
Others have questioned the court's readiness to rely on the absence of individual convictions in genocide by the ICTY except with relation to the massacre in Srebrenicawithout properly considering the difference between standards of liability under criminal law and state responsibility or fully appreciating the limited probative value of reduced charges as the result of plea bargains.
Third, with respect to the question of Serbian responsibility, the court's legal analysis of attribution standards, the reluctance to find Serbia to be an accomplice to genocide, and the decision to refrain from ordering reparations, have all been criticized as excessively conservative.
At the same time, the court's expansive reading of Article 1 of the Genocide Convention as potentially imposing on all states a duty to prevent genocide, even if committed outside their territory, has been noted for its remarkable boldness. Still, some writers have criticized the court for not clarifying whether Article 1 can provide an independent basis for exercising of universal jurisdiction against individual perpetrators of genocide.
So, arguably, the court construed broadly the duty to prevent genocide while narrowly construing the duty to punish its perpetrators. Antonio Cassese, the first president of the International Criminal Tribunal for the former Yugoslavia, criticized the ICJ judgement on the ground that "The International Court has set an unrealistically high standard of proof for finding Serbia complicit in genocide.
Although the Court ruled that genocide had taken place, it decided that Serbia was not responsible under international law. Why was it not enough to prove that the Bosnian Serb military leadership was financed and paid by Serbia and that it was tightly connected to Serbia political and military leadership?
More importantly, the ICJ's decision that Serbia is responsible for not having prevented a genocide in which it was not complicit makes little sense. According to the Court, Serbia was aware of the very high risk of acts of genocide and did nothing. But Serbia was not complicit, the Court argued, because "it has not been proven" that the intention of committing the acts of genocide at Srebrenica "had been brought to Belgrade's attention".
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