[17] In 2005, the United States Congress passed a resolution declaring that the Serbian policies of aggression and ethnic cleansing meet the terms defining genocide.

[21] On 18 December 1992, the U.N. General Assembly resolution 47/121 in its preamble deemed ethnic cleansing to be a form of genocide stating:[23][24] Gravely concerned about the deterioration of the situation in the Republic of Bosnia and Herzegovina owing to intensified aggressive acts by the Serbian and Montenegrin forces to acquire more territories by force, characterized by a consistent pattern of gross and systematic violations of human rights, a burgeoning refugee population resulting from mass expulsions of defenceless civilians from their homes and the existence in Serbian and Montenegrin controlled areas of concentration camps and detention centres, in pursuit of the abhorrent policy of "ethnic cleansing", which is a form of genocide... On 12 July 2007, in its judgement on the Jorgić v. Germany case, the European Court of Human Rights noted that:[25] the ICTY, in its judgments in the cases of Prosecutor v. Krstić and Prosecutor v. Kupreškić, expressly disagreed with the wide interpretation of the 'intent to destroy' as adopted by the UN General Assembly and the German courts.

[26] In the unanimous ruling Prosecutor v. Krstić, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), located in The Hague, reaffirmed that the Srebrenica massacre was genocide,[27] the Presiding Judge Theodor Meron stating: By seeking to eliminate a part of the Bosnian Muslims, the Bosnian Serb forces committed genocide.

They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them solely on the basis of their identity.

[28]In September 2006, former Bosnian Serb leader Momcilo Krajišnik was found guilty of multiple instances of crimes against humanity, but while the ICTY judges found that there was evidence that crimes committed in Bosnia constituted the criminal act of genocide (actus reus), they did not establish that the accused possessed genocidal intent, or was part of a criminal enterprise that had such an intent (mens rea).

On the basis of the inference that may be drawn from this evidence, a Trial Chamber could be satisfied beyond reasonable doubt that there existed a joint criminal enterprise, which included members of the Bosnian Serb leadership, whose aim and intention was to destroy a part of the Bosnian Muslim population, and that genocide was in fact committed in Brčko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Ključ and Bosanski Novi.

[37] His acquittal means that, to date, no official or army officer of Serbia-Montenegro (Yugoslavia) and no member of the JNA or VJ high command has ever been convicted by the ICTY for war-crimes committed in Bosnia.

Prof. Yuval Shany, Hersch Lauterpacht Professor of Public International Law at the Hebrew University of Jerusalem,[50] described the Court's conclusions on the three questions before it as controversial: 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.

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 Srebrenica), without 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.

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."

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".

The Court's refusal to infer genocidal intent from a consistent pattern of conduct in Bosnia and Herzegovina is inconsistent with the established jurisprudence of the ICTY.

According to the explanation given by Sir Geoffrey Nice, former prosecutor in the trial of Slobodan Milošević: First, it is important to note that Serbia did not hand over to the Prosecution (OTP) the complete collection of SDC [Supreme Defense Council] records.

In their un-redacted form they would point all who are interested (not just governments and lawyers) to other documents that have never been provided and that might well be more candid than the words of those at the SD Council meetings who knew they were being recorded by a stenographer.

[56][57] In the case of Prosecutor v. Krstić (2 August 2001), the ICTY ruled "customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group.

[58] On 19 April 2004, this determination was upheld on appeal: "The Genocide Convention, and customary international law in general, prohibit only the physical or biological destruction of a human group. ...

[58] On 14 January 2000, the ICTY ruled in the Prosecutor v. Kupreškić and Others case that the Lašva Valley ethnic cleansing campaign in order to expel the Bosnian Muslim population from the region was persecution, not genocide per se.

[59] In reference to legal writers, the ECHR also noted: "Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide.

[60] The ECHR having reviewed the case and the more recent international rulings on the issue the ECHR ruled that "The Court finds that the [German] courts' interpretation of 'intent to destroy a group' as not necessitating a physical destruction of the group, which has also been adopted by a number of scholars ... , is therefore covered by the wording, read in its context, of the crime of genocide in the [German] Criminal Code and does not appear unreasonable",[61] so "In view of the foregoing, the [ECHR] concludes that, while many authorities had favoured a narrow interpretation of the crime of genocide, there had already been several authorities at the material time which had construed the offence of genocide in the same wider way as the German courts.

In these circumstances, the [ECHR] finds that [Jorgić], if need be with the assistance of a lawyer, could reasonably have foreseen that he risked being charged with and convicted of genocide for the acts he had committed in 1992.

",[62] and for this reason the court rejected Jorgić's assertion that there had been a breach of Article 7 (no punishment without law) of the European Convention on Human Rights by Germany.

The indictment accused him of planning, preparing and executing the destruction, in whole or in part, of the Bosnian Muslim national, ethnical, racial or religious groups, as such, in territories within Bosnia and Herzegovina including Bijeljina, Bosanski Novi, Brčko, Ključ, Kotor Varoš, Prijedor, Sanski Most and Srebrenica.

[77] If a narrow definition of genocide is used, as favoured by the international courts, then during the Srebrenica massacre, 8000 Bosnian Muslim men and boys were murdered and the remainder of the population (between 25000 and 30000 Bosniak women, children and elderly people) was forced to leave the area.

The head of the ICTY Demographic Unit, Ewa Tabeu, has called it "the largest existing database on Bosnian war victims".

[79][80] More than 240000 pieces of data were collected, processed, checked, compared and evaluated by an international team of experts to tabulate the names of the victims.

Simons continues that Rosalyn Higgins the president of the ICJ, declined to comment when asked why the full records had not been subpoenaed, saying that "The ruling speaks for itself".

", and William Schabas, a professor of international law at the University of Ireland in Galway, suggested that as a civil rather than a criminal court, the ICJ was more used to relying on materials put before it than aggressively pursuing evidence which might lead to a diplomatic incident.

[90] Several prolific writers and academics, including Noam Chomsky[91][92] and Edward S. Herman, have argued that the Srebrenica massacre does not constitute genocide.