Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)
OVERVIEW OF THE CASE
On 2 July 1999, Croatia filed an Application against the Federal Republic of Yugoslavia (FRY) “for violations of the Convention on the Prevention and Punishment of the Crime of Genocide”. As basis for the Court’s jurisdiction, Croatia invoked Article IX of that Convention to which, according to it, both Croatia and Yugoslavia were parties. On 11 September 2002, Yugoslavia filed preliminary objections to the jurisdiction of the Court and to the admissibility of the claims made by Croatia.
The Court delivered its Judgment on the preliminary objections on 18 November 2008. It rejected the first and third objections raised by the Respondent and found that the second objection was not exclusively preliminary in character.
On 4 January 2010, the Republic of Serbia filed its Counter-Memorial containing counter-claims.
The Court held public hearings from 3 March to 1 April 2014, at which time it also heard witnesses and witness-experts. The Court delivered its Judgment on 3 February 2015.
The Court first considered the scope of its jurisdiction, which, it recalled, was founded only on Article IX of the Genocide Convention. It noted that the Court thus 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. That was so even if the alleged breaches were of obligations under peremptory norms, or of obligations which protect essential humanitarian values, and which might be owed erga omnes. The Court further noted that the jurisdiction provided for under Article IX did not extend to allegations of violations of the customary international law on genocide, even if it was well established that the Convention enshrines principles that also form part of customary international law. Referring to statements contained in its jurisprudence, the Court recalled that the Genocide Convention contains obligations erga omnes and that the prohibition of genocide has the character of a peremptory norm (jus cogens).
The Court recalled that, in its 2008 Judgment, it had found that it had jurisdiction over events which had taken place after 27 April 1992 (the date on which the FRY became party, by succession, to the Genocide Convention), but had at the time reserved its decision on its jurisdiction with regard to violations of the Convention allegedly committed before that date. After examining the Parties’ arguments on this second aspect, the Court found that it had jurisdiction to rule upon the entirety of Croatia’s claim, including in respect of acts prior to 27 April 1992. In this regard, the Court first considered that the FRY could not be bound by the Genocide Convention before 27 April 1992. It took note, however, of Croatia’s alternative argument that the FRY (and later Serbia) could have succeeded to the responsibility of the Socialist Federal Republic of Yugoslavia (SFRY) for violations of the Convention prior to that date. The Court stated in this respect that, in order to determine whether Serbia was responsible for violations of the Convention, the Court would need to decide: (1) whether the acts relied on by Croatia had taken place and, if they had, whether they were contrary to the Convention; (2) if so, whether those acts were attributable to the SFRY at the time that they occurred and engaged its responsibility; and (3) if the responsibility of the SFRY had been engaged, whether the FRY succeeded to that responsibility. Noting that the Parties disagreed on these questions, the Court considered that there existed between them a dispute falling within the scope of Article IX of the Convention (“[d]isputes . . . relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III”) and that it therefore had jurisdiction to entertain it. The Court further noted that, in reaching that conclusion, it was not necessary for it to decide the aforementioned questions, which were matters for the merits.
The Court also took the view that it was not necessary to determine the admissibility questions raised by Serbia before examining Croatia’s claim on the merits. With regard to Serbia’s argument that Croatia’s claim was inadmissible in so far as events said to have occurred before the FRY came into existence as a State on 27 April 1992 could not be attributed to it, the Court considered that this involved questions of attribution which the Court did not need to determine before considering on the merits the acts alleged by Croatia. With regard to Serbia’s alternative argument that the claim was inadmissible in so far as it concerned events prior to 8 October 1991, the date on which Croatia came into existence as a State and became a party to the Convention, the Court observed that the Applicant had not made discrete claims in respect of the events before and after 8 October 1991; rather, it had advanced a single claim alleging a pattern of conduct increasing in intensity throughout the course of 1991. In this context, the Court considered that what had happened prior to 8 October 1991 was, in any event, pertinent to an evaluation of whether what took place after that date involved violations of the Genocide Convention. It therefore was not necessary for the Court to rule on Serbia’s argument before it had examined and assessed the totality of the evidence advanced by Croatia.
The Court then turned to the merits of the Parties’ claims. It recalled that, under the terms of the 1948 Convention, the crime of genocide contains two constituent elements. The first is the physical element, namely the acts perpetrated (which are set out in Article II and include, in particular, killing members of the group (subparagraph (a)) and causing serious bodily or mental harm to members of the group (subparagraph (b)). The second is the mental element, namely the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. The Court noted that this mental element is the essential characteristic of genocide and distinguishes it from other serious crimes. It is a specific intent (dolus specialis), which, in order for genocide to be established, must be present in addition to the intent required for each of the individual acts involved. The Court explained that the aim must be the physical or biological destruction of the protected group, or a substantial part of that group. Evidence of this intent is to be sought, first, in the State’s policy (while at the same time accepting that such intent will seldom be expressly stated), but it can also be inferred from a pattern of conduct, when this intent is the only inference that can reasonably be drawn from the acts in question.
Regarding Croatia’s claim, the Court considered that, in the regions of Eastern Slavonia, Western Slavonia, Banovina/Banija, Kordun, Lika and Dalmatia, the JNA (the army of the SFRY) and Serb forces had committed killings of and caused serious bodily or mental harm to members of the Croat national or ethnic group. In the view of the Court, these acts constituted the actus reus of genocide within the meaning of Article II (a) and (b) of the Convention.
The actus reus of genocide having been established, the Court turned to the question whether the acts that had been perpetrated reflected a genocidal intent. In the absence of direct proof of such intent (for example, the expression of a policy to that effect), the Court examined whether it had been demonstrated that there existed a pattern of conduct from which the only reasonable inference to be drawn was an intent on the part of the perpetrators of the acts to destroy a substantial part of the group of ethnic Croats. The Court considered that this was not the case. It observed, in particular, that the aim of the crimes committed against ethnic Croats appeared to have been the forced displacement of the majority of the Croat population in the regions concerned, not its physical or biological destruction. In the absence of evidence of the required intent, the Court found that Croatia had not proved its allegations that genocide or other violations of the Convention had been committed. It thus dismissed Croatia’s claim in its entirety and did not consider it necessary to rule on other questions, such as the attribution of the acts committed or succession to responsibility.
Regarding Serbia’s counter-claim, which was found to be admissible, the Court concluded that, during and after Operation Storm, carried out in August 1995, Croatian forces had committed acts falling within Article II (a) and (b): (i) killings of members of the national or ethnical group of Serbs who were fleeing or had remained in the areas of which the Croatian army had taken control; and (ii) causing serious bodily or mental harm to Serbs.
However, the Court considered that the existence of an intent to destroy, in whole or in part, the national or ethnical group of Croatian Serbs had not been established in this case. In particular, although acts constituting the physical element of genocide had been committed, they had not been committed on a scale such that they could only point to the existence of a genocidal intent. The Court found that neither genocide nor other violations of the Convention had been proved. Accordingly, it rejected Serbia’s counter-claim in its entirety.
This overview is provided for information only and in no way involves the responsibility of the Court.