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Volume 84, Number 6

December 2009

Reining in Non-State Actors: State Responsibility and Attribution in Cases of Genocide

Berglind Halldórsdóttir Birkland

In 2007, the International Court of Justice defined the scope of state responsibility under the Genocide Convention for the very first time when it reached the merits in the Genocide Case, a case arising from the violent breakup of the former Yugoslavia. The opinion immediately spurred extensive academic commentary, much of which was critical of the Court’s ultimate holding that Serbia had not committed genocide despite its well-documented role in the Srebrenica massacre. While the Genocide Case can be read as a disappointment, and the Court’s analysis is vulnerable to normative critique, this Note argues that it was nonetheless an important victory in the movement toward greater state accountability for genocide, especially considering the context in which the Court acts and the limitations imposed on its independence by the practical need for legitimacy. Although the Court raised onerous evidentiary hurdles for establishing state responsibility for the direct commission of genocide, it managed simultaneously to impose upon states a clear duty to rein in non-state actors over whom they exercise influence by interpreting the state obligation to prevent genocide broadly. This broad duty to rein in non-state actors has important implications not only for the Court’s own jurisprudence but also extrajudiciously within the customary framework of state responsibility, by empowering the general international community to enforce states’ obligations to curb genocidal actors within their reach.