Nama : Farhan Nabil Ahmad
NIM : 1903101010178
MK : Hukum dan Ham
STATE RESPONSIBILITY RELATED TO HUMAN RIGHTS
CASE STUDY
State responsibility is a principle of international law that is as old as international law itself.
One of its early progenitors is the concept of just war and reprisals developed in the
fourteenth and fifteen centuries, which posited that a state was entitled to wage war, as a
matter of last resort, to enforce its rights against another state and, conversely, that a state
which waged an unjust war had the obligation to pay damages to the injured state. 2 Hence,
state responsibility has long encapsulated the simple but vital principle that to every legal
wrong must attach legal responsibility. Judge Huber in the Spanish Zone of Morocco Claims
(Spain v United Kingdom) stated: ‘Responsibility is the necessary corollary of a right. All
rights of an international character involve international responsibility.
After explaining about the meaning of state responsibility related to human rights now I will
made a similarity and differences between two case studies about state responsibility.
The first case is about The Srebenica Case.
The Srebenica Case is about The Srebrenica massacre, also known as the Srebrenica
genocide, was the July 1995 genocide of more than 8,000 Bosniak Muslim men and boys in
and around the town of Srebrenica, during the Bosnian War. The killings were perpetrated by
units of the Bosnian Serb Army of Republika Srpska under the command of Ratko Mladić.
In 2004, in a unanimous ruling on the case of Prosecutor v. Krstić, the Appeals Chamber of
the International Criminal Tribunal for the former Yugoslavia (ICTY), located in The Hague,
ruled that the massacre of the enclave's male inhabitants constituted genocide, a crime under
international law. The ruling was also upheld by the International Court of Justice (ICJ) in
2007. The forcible transfer and abuse of between 25,000 and 30,000 Bosniak Muslim
women, children and elderly which accompanied the massacre was found to constitute
genocide, when accompanied with the killings and separation of the men.
And the second case is The Perišić Case.
According to the ICTY Prosecutor’s Indictment, the VRS perpetrated war crimes and crimes
against humanity in Sarajevo36 and Srebrenica 37 (Bosnia-Herzegovina), and the Army of
Serbian Krajina (SVK) attacked civilians during the shelling of Zagreb (Croatia) between
1993 and 1995.38 The FRY and the Yugoslav Army (VJ) provided logistical support (which
included infantry and artillery ammunition, fuel, spare parts, training and technical
assistance) and personnel assistance (a number of VRS and SVK officers were drawn from
the ranks of the Yugoslav Army). These officers officially remained members of the VJ even
as they were fighting in Bosnia and Croatia under the banners of the VRS and SVK. The
Prosecutor considered that under articles 7(1) and 7(3) of the ICTY Statute, Momčilo Perišić,
who was the top military officer of the VJ, headquartered in Belgrade (Serbia), a position he
held from August 1993 until November 199839 was personally responsible as a superior for
those crimes, and for having failed to take the necessary and reasonable measures to prevent
such acts or to punish the perpetrators.
The similarity between Srebenica case and Perisic case.
The fact that both cases mention about a town in Bosnia and Herzegovina, Srebenica and the
case is about the violation of human rights (genocide), these actions is also commited by the
army of VRS. Later these action will be taken to the ICJ (International Court of Justice) by
other state (Bosnia and Herzegovina) to Serbia because of the feel of responsibility to upheld
international human rights.
Human rights that violated by the army of VRS is actus reus of killings in Article II (a) of the
Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948)
was satisfied and that the specific intent was also established.
According to Article 4, Article 8, Article 14, and Article 16 principles, a State is responsible
for the illegal acts committed by any of its organs and also for the acts of those groups or
persons which are not its organs but on which it exercises such a degree of control that those
groups or persons can be considered totally dependent on the State. In cases other than this,
the responsibility cannot be attributed to the State.
The differences between Srebenica case and Perisic case.
The differences between Srebenica case and Perisic case is while the Srebenica case focuses
on the action of the army VRS crime against humanity, the Perisic case focuses on the
questionable acts of other neighboring states when the Srebenica massacre happened and why
they doesn’t take any necessary and reasonable measures to prevent such acts or to punish the
perpetrators.
