The International Court of Justice

Today, the International Court of Justice (ICJ) has rejected the claim of Croatia that Serbia committed genocide in Croatia in 1991, as well as the counter-claim by Serbia that the expulsion of more than 200,000 Serbs from Croatia constituted genocide.

Judge Peter Tomka, president of the ICJ, said that although both sides had carried out violent acts during the war, neither side had provided sufficient evidence to demonstrate the specific intent required for acts of genocide.

Both countries relied on the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) for contending that the other country had committed genocide. The fact that the claims were based only on the Genocide Convention, implied that the Court had no power to rule on alleged breaches of other obligations under international law, not amounting to genocide, particularly those protecting human rights in armed conflict.

Although the case before the ICJ is a civil case, the Court said that it would nonetheless take account, where appropriate, of the decisions of the international criminal courts and tribunals and in particular the decisions of the International Criminal Tribunal for the former Yugoslavia (ICTY) in examining the constituent elements of genocide.

The 17-judge bench found that Serbia could not be held responsible for genocide for events that took place before 27 April 1992, as Serbia had not been a party to the Genocide Convention until that time. This finding ruled out most of the case of Croatia against Serbia as the great majority of Croatia’s concerned crimes committed by the Yugoslav Army committed in the eastern town of Vukovar in 1991.

The Court further held that, although it was fully convinced that Serb forces perpetrated acts of genocide against Croats and that the actus reus of genocide had been established, there had been no aim by the Yugoslav People’s Army and Serbian forces to destroy Croats, but to expel them. The Court therefore concluded that Croatia had failed to prove that the acts constituting the actus reus of genocide were committed with the specific intent required for them to be characterised as genocide.

The Court pointed out that the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such is the essential characteristic of genocide, which distinguishes it from other serious crimes. It is regarded as a dolus specialis, that is to say a specific intent, which, in order for genocide to be established, must be present in addition to the intent required for each of the individual acts involved.”

It accordingly dismissed Croatia’s claim in its entirety by fifteen votes to two.

Turning to the counter-claim filed by Serbia, the ICJ held that Croatia also could not be held accountable for genocide. Serbia had claimed that Croatia committed genocide during Operation Storm in 1995, when Croatia recaptured swaths of territory seized earlier by Serbian forces.

Judge Tomka again held that the Court was fully convinced that during and after Operation Storm Croatian armed forces and police perpetrated acts against the Serb population constituting the actus reus of genocide. However, it was not established that the Croatian armed forces and police had the dolus specialis, or the intent to destroy the Serb population.

The Court unanimously concluded from the foregoing that it had not been proved that genocide was committed during and after Operation Storm against the Serb population of Croatia.

Judge Cancado Trindade appended a dissenting opinion criticising parts of the judgment. Among other findings, he observed that the essence of the case, lied on substantive issues pertaining to the interpretation and application of the Genocide Convention, rather than on issues of jurisdiction/admissibility, as acknowledged by the contending Parties themselves. He stressed that automatic succession to, and continuity of obligations of, the Convention against Genocide, is an imperative of humaneness so as to secure protection to human groups when they stand most in need of it.