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Last February, the International Court of Justice issued a judgement adjudicating claims by Bosnia and Herzegovina that Serbia breached the 1948 Genocide Convention – the case marks the first time a state has made such claims against another. The alleged genocidal acts were the same as those that have been the subject of several criminal trials in the Yugoslav Tribunal. The judgment contained several landmark rulings – among them, the Court found that a state, as a state, could commit the crime of genocide and the applicable standard of proof for determining state responsibility is comparable to the standard used in criminal trials. The Court, with these rulings, committed itself to the same essential task faced by the Yugoslav Tribunal – an examination of the states of mind of senior officials to determine if genocidal acts were committed with the intent to destroy a protected group. The work of the ad hoc tribunals for Yugoslavia and Rwanda has demonstrated that adjudicating genocide cases present several unique interpretative and analytical challenges. The Court, intended as a forum to resolve disputes between states, is ill-equipped to adjudicate issues traditionally reserved for criminal courts involving the examination of an individual’s state of mind. Further, considerations of fairness prevent the Court from adjudicating the criminal culpability of individuals who are not before it. This article explores the methodology developed by the ICJ for adjudicating its first genocide case, its implications for future cases and draws the conclusion that such methodology forces the Court into a relationship that is dependent upon the work of other international criminal tribunals.

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Fordham International Law Journal