On Saturday, news outlets reported an arrest by UN police on one of the International Criminal Tribunal for the former Yugoslavia’s last outstanding warrants. French journalist Florence Hartmann — a former reporter for Le Monde and advocate for victims of the Bosnian genocide — was dragged shouting from the grassy area outside the tribunal where advocates and victims’ families were holding a vigil as they waited for the Radovan Karadžić trial verdict. The arrest and the surrounding events bring to light the limitations of the current doctrine of state responsibility, especially the high — almost insurmountable — evidentiary burden the UN’s International Court of Justice (ICJ) imposes under its “effective control” test for attribution of a non-state actor’s conduct to a state.

Hartmann’s arrest, and the five days she spent in prison (two-thirds of her seven day sentence), stem from a 2009 conviction at the ICTY for contempt of court. She was censured for disclosing confidential information in her 2007 book, Paix et chatiment (Peace and Punishment), which claimed that the ICTY had withheld crucial evidence on Serbia’s involvement in the Srebrenica massacre. Hartmann’s book also argues that the ICTY’s sealing of evidence from Serbia’s state archives prejudiced the outcome of a separate case Bosnia had brought against Serbia at the ICJ. She criticized the ICJ for failing to compel Serbia to produce unredacted records that linked Belgrade to the genocide in Srebrenica. (Hartmann was a spokesperson for former ICTY prosecutor Carla del Ponte between 2000 and 2006, which may explain how she knew the content of documents otherwise sealed from public view.)

Hartmann’s arrest affords an opportunity to reexamine her claims about the ICJ’s failure to pursue the Bosnian requests for evidence.

While the ICTY held several officials of the Federal Republic of Yugoslavia (FRY) criminally responsible as individuals for the Srebrenica massacre, the ICJ notably did not find the FRY responsible for the genocide in its 2007 opinion in Bosnia and Herzegovina v. Serbia and Montenegro (also known as the Bosnian Genocide case). To date, the FRY’s successor states, Serbia and Montenegro, have not been held responsible for the acts of individual officials.

In Hartmann’s telling, the ICJ rejected requests by the Bosnian legal team to compel Serbia to produce unredacted versions of crucial documents that were in the ICTY’s possession. Those documents, Hartmann alleges, would have helped to establish a direct connection between the FRY and the massacre at Srebrenica. In his dissenting opinion, the Vice-President of the Chamber, Jordanian judge Awn Shawkat Al-Khasawneh, appears to support these claims. He argues that the “the Court should have required the Respondent to provide unedited copies of its Supreme Defence Council documents, failing which, the Court should have allowed a more liberal recourse to inference.”

According to Hartmann and Al-Khasawneh, the inclusion of this evidence could have been critical to adequately assessing whether the Srebrenica massacre could be attributed to the FRY. While the ICJ case is over and the ICTY is wrapping up its work, the failure to order Serbia to disclose these documents is more than an historical curiosity. As we note in a forthcoming article in the Texas Law Review, “Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors,” current state responsibility doctrine sets very high substantive and evidentiary bars for a finding of attribution. In particular, the ICJ’s effective control test — the most widely accepted state responsibility standard — can be read to demand evidence that the state issued direct instructions to the non-state actor to commit internationally wrongful acts to establish state responsibility.

In Bosnian Genocide, the ICJ found “close ties” between the government of the FRY and the breakaway Republika Srpska. It found that the FRY had provided military support to the Republika Srpska (personnel, arms, and equipment) and financial support (the economies of the two entities were intertwined), with the FRY underwriting most of Republika Srpska’s budget with loans (paras. 237-41). Despite these findings, the ICJ held that Bosnia and Herzegovina had failed to prove that the acts of the breakaway republic’s militia at Srebrenica were attributable to the FRY under the effective control test. It cited the absence of explicit instructions by the FRY to commit the massacre — and the absence of evidence that “such instructions were given with specific intent (dolus specialis) characterizing the crime of genocide” (para. 241).

But such evidence of specific instruction is extremely difficult to come by and, by requiring it, the ICJ set a very high bar for attribution. It is perhaps no surprise, then, that the ICJ has not found attribution in either of the two major cases in which it has applied the effective control standard to assess state responsibility, Bosnian Genocide and Nicaragua v. United States. State actors tend to conceal their actions when instructing non-state groups, either by deliberately destroying evidence or communicating their directives through more oblique channels. Additionally, states may invoke national security to resist requests to produce relevant documents (as Serbia did in the Bosnia Genocide case).

In general, a standard of liability that requires direct proof of instructions to satisfy its elements will be difficult to satisfy. This is one reason why, in the US law of criminal conspiracy, a jury may infer the existence of a conspiracy from the conspirators’ acts: Coordinated steps towards a particular end — building a drug distribution business, say — are sufficient to impute an agreement to that end. Courts are aware that a written contract to sell cocaine or kill a particular individual is unlikely to surface in an investigation, and that such agreements are often tacit. For similar reasons, the ICTY has applied “joint criminal enterprise” liability to establish individual criminal responsibility for senior officials in the FRY without requiring evidence of specific instructions. (Indeed, it seems counterintuitive that the criterion for individual criminal liability — which includes additional mens rea requirements — should be less exacting than the standards used to assess state responsibility.)

In this context, Hartmann’s arrest raises questions about the ICJ’s state responsibility jurisprudence, particularly the Bosnian Genocide case. Given that the ICJ already sets a high evidentiary bar for a finding of effective control, the ICJ’s decision not to order the release of key evidence in a state responsibility case like Bosnian Genocide can make all the difference. Indeed, the ICJ’s refusal to consider this evidence may help explain why the ICTY found individual Serb officials criminally responsible for their role in the Srebrenica massacre, while the ICJ found the state was not responsible for the conduct of those same officials.

While the conviction of Karadžić has rightly been hailed as a victory for human rights, individual criminal liability alone is insufficient to address massive violations of international law, especially in cases where states collaborate with non-state actors. The ICJ’s high evidentiary and substantive bars for establishing state responsibility allows states to work with non-state proxies to accomplish internationally wrongful ends while evading accountability for violations of international law. In our article, we argue that Common Article 1 may help close some of this accountability gap in the context of armed conflict. Even so, much remains to be done to address the broader problem.

The Hartmann arrest, and the events surrounding it, should prompt the international community to pause and reflect on how to more effectively hold states responsible for the actions of non-state actors they fund, instruct, encourage, and enable.