Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)

In 1999, Croatia filed an application against the Federal Republic of Yugoslavia ( FRY) in respect of a dispute concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide. The Convention was approved by the General Assembly of the United Nations on 9 December 1948 and entered into force on 12 January 1951. The Application invoked Article IX of the Genocide Convention as the basis of the jurisdiction of the Court.

In 2003, the FRY informed the Court that, following the adoption and promulgation of the Constitutional Charter of Serbia and Montenegro by the Assembly of the FRY, the name of the State had been changed from the “Federal Republic of Yugoslavia” to “Serbia and Montenegro”. Following the announcement of the result of a referendum held in Montenegro on 21 May 2006, the National Assembly of the Republic of Montenegro adopted a declaration of independence on 3 June 2006, following which the “Republic of Serbia” (Serbia) remained the sole Respondent in the case.

In its Application, the following claims were made by Croatia:

“While reserving the right to revise, supplement or amend this Application, and, subject to the presentation to the Court of the relevant evidence and legal arguments, Croatia requests the Court to adjudge and declare as follows:

(a) that the Federal Republic of Yugoslavia has breached its legal obligations toward the people and Republic of Croatia under various Articles of the Genocide Convention;

(b) that the Federal Republic of Yugoslavia has an obligation to pay to the Republic of Croatia, in its own right and as parens patriae for its citizens, reparations for damages to persons and property, as well as to the Croatian economy and environment caused by the foregoing violations of international law in a sum to be determined by the Court. The Republic of Croatia reserves the right to introduce to the Court at a future date a precise evaluation of the damages caused by the Federal Republic of Yugoslavia.”

Submissions on behalf of the Government of Croatia requested the International Court of

Justice to adjudge and declare:

1. That the Respondent, the Federal Republic of Yugoslavia, is responsible for violations of the Convention on the Prevention and Punishment of the Crime of Genocide:

(a) in that persons for whose conduct it is responsible committed genocide on the territory of the Republic of Croatia, including in particular against members of the Croat national or ethnical group on that territory, by

• killing members of the group;
• causing deliberate bodily or mental harm to members of the group;
• deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
• imposing measures intended to prevent births within the group,

with the intent to destroy that group in whole or in part, contrary to Article II of the Convention;

(b) in that persons for whose conduct it is responsible conspired to commit the acts of genocide referred to in paragraph (a), were complicit in respect of those acts, attempted to commit further such acts of genocide and incited others to commit such acts, contrary to Article III of the Convention;

(c) in that, aware that the acts of genocide referred to in paragraph (a) were being or would be committed, it failed to take any steps to prevent those acts, contrary to Article I of the Convention;

(d) in that it has failed to bring to trial persons within its jurisdiction who are suspected on probable grounds of involvement in the acts of genocide referred to in paragraph (a), or in the other acts referred to in paragraph (b), and is thus in continuing breach of Articles I and IV of the Convention.

That as a consequence of its responsibility for these breaches of the Convention, the Respondent was under the following obligations:

(a) to take immediate and effective steps to submit to trial before the appropriate judicial authority, those citizens or other persons within its jurisdiction who are suspected on probable grounds of having committed acts of genocide  and to ensure that those persons, if convicted, are duly punished for their crimes;

(b) to provide forthwith to the Applicant all information within its possession or control as to the whereabouts of Croatian citizens who are missing as a result of the genocidal acts for which it is responsible, and generally to cooperate with the authorities of the Republic of Croatia to jointly ascertain the whereabouts of the said missing persons or their remains;

(c) forthwith to return to the Applicant any items of cultural property within its jurisdiction or control which were seized in the course of the genocidal acts for which it is responsible; and

(d) to make reparation to the Applicant, in its own right and as parens patriae for its citizens, for all damage and other loss or harm to person or property or to the economy of Croatia caused by the foregoing violations of international law, in a sum to be determined by the Court in a subsequent phase of the proceedings in this case.

Croatia contended that Serbia was responsible for breaches of the Genocide Convention committed in Croatia between 1991 and 1995.

ICJ observed that State responsibility and individual criminal responsibility are governed by different

legal régimes and pursue different aims. The former concerns the consequences of the breach by a

State of the obligations imposed upon it by international law, whereas the latter is concerned with

the responsibility of an individual as established under the rules of international and domestic criminal law, and the resultant sanctions to be imposed upon that person.

It is for the Court, in applying the Convention, to decide whether acts of genocide have been committed, but it is not for the Court to determine the individual criminal responsibility for such acts. That is a task for the criminal courts or tribunals empowered to do so, in accordance with appropriate procedures. The Court will nonetheless take account, where appropriate, of the decisions of international criminal courts or tribunals, in particular those of the ICTY, as it did in 2007, in examining the constituent elements of genocide in the present case. If it is established that genocide has been committed, the Court will then seek to determine the responsibility of the State, on the basis of the rules of general international law governing the responsibility of States for internationally wrongful acts.

Article II of the Convention defines genocide in the following terms:

“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”

According to the Article, genocide contains two constituent elements: the physical element, namely the act perpetrated or actus reus, and the mental element, or mens rea. Although analytically distinct, the two elements are linked. The determination of actus reus can require an inquiry into intent. In addition, the characterization of the acts and their mutual relationship can contribute to an inference of intent.

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.

ICJ observed that it was established that a large number of killings were carried out by the JNA and Serb forces during the conflict in several localities in Eastern Slavonia, Banovina/Banija, Kordun, Lika and Dalmatia. Furthermore, the evidence presented shows that a large majority of the victims were members of the protected group, which suggests that they may have been systematically targeted. The Court noted that while the Respondent has contested the veracity of certain allegations, the number of victims and the motives of the perpetrators, as well as the circumstances of the killings and their legal categorization, it has not disputed the fact that members of the protected group were killed in the regions in question.

The Court thus found that it had been proved by conclusive evidence that killings of members of the

protected group were committed, and that the actus reus of genocide specified in Article II (a) of the Convention had therefore been established.

After considering the evidence in detail, ICJ held that Croatia had not established that the only reasonable inference that could be drawn from the pattern of conduct it relied upon was the intent to destroy, in whole or in part, the Croat group. The acts constituting the actus reus of genocide within the meaning of Article II (a) and (b) of the Convention were not committed with the specific intent required for them to be characterized as acts of genocide. The Court also took note of the fact that the ICTY prosecutor had never charged any individual on account of genocide against the Croat population in the context of the armed conflict which took place in the territory of Croatia in the period 1991-1995. Thus Croatia failed to substantiate its allegation that genocide was committed. Accordingly, no issue of responsibility under the Convention for the commission of genocide arose. Nor could there be any question of responsibility for a failure to prevent genocide, a failure to punish genocide, or complicity in genocide. As dolus specialis had not been established by Croatia, its claims of conspiracy to commit genocide, direct and public incitement to commit genocide, and attempt to commit genocide too failed.