(Feb. 6, 2015) On February 3, 2015, the International Court of Justice (ICJ) in The Hague, Netherlands, issued a judgment on whether Serbia had committed the crime of genocide against Croatians and whether Croatia had committed genocide against Serbs. (Press Release, No. 2015/4, International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) (Feb. 3, 2015), ICJ website.) The ICJ concluded that neither Croatia nor Serbia had committed genocide and thus rejected Croatia’s claim and Serbia’s counterclaim. (Id.)
Croatia and Serbia emerged as independent nations after the break-up of the Federal Republic of Yugoslavia. In 1999, Croatia filed an application with the ICJ against Serbia, alleging violations of the Convention on Genocide during the period of 1991-1995. The application was based on events that occurred after Croatia declared its independence in 1991, in a conflict between the Croatian armed forces and forces of the Serbian ethnic minority living in Croatia at the time, together with other paramilitary troops that objected to Croatia’s declaration of independence. Croatia claimed that genocide had taken place when Serb forces took control of one-third of Croatia’s territory. During the spring and summer of 1995, Croatia succeeded in taking back its former territory. Serbia based its counterclaim on alleged genocidal events that occurred during the spring and summer of 1995. (Id. at 2.)
As a first step, the ICJ established its jurisdiction and the admissibility of Croatia’s claim and Serbia’s counterclaim.
It next examined the applicable law in the case, that is, the definition of the crime of genocide, as provided in article 2 of the Genocide Convention. Pursuant to this article, the crime of genocide includes any of the following acts committed intentionally in order to destroy, partly or in its entirety, a national, ethnic, racial, or religious group: (a) killing members of the group; (b) causing serious bodily or mental harm to such members; (c) deliberately inflicting on the group bodily harm designed to destroy the group physically in whole or in part; (d) taking measures designed to prevent births within that group; and (e) taking children by force from one group and transferring them to another. (Id. at 2-4; Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 UNITED NATIONS TREATY COLLECTION at 277.)
The ICJ noted that, based on the above definition, the crime of genocide is composed of two constitutive elements: (a) the physical element (actus reus), acts perpetrated against a particular group; and (b) the mental element (mens rea), the intent to destroy such a group. The ICJ stated that the mental element constitutes a dolus specialis (specific intent) which must be present in order to establish the crime of genocide, and it also must exist for each of the acts stated above. As far as evidence of such intent, the ICJ stated it can be found in a state’s policy or it can be inferred from a pattern of conduct. (Press Release, supra, at 4.)
In considering Croatia’s claim that genocide was committed, the ICJ, based on the evidence, found that acts of killing members of the ethnic group and acts that caused serious mental or bodily harm were committed against Croatians during the critical period; it also held that that such acts constituted actus reus of the crime of genocide and were committed by Serb troops. (Id.)
However, the ICJ reached the conclusion that the intentional element, the dolus specialis, did not exist in the absence of evidence of a Serbian policy to exterminate ethnic Croatians, nor could it draw any inference from the acts committed. To the contrary, the ICJ concluded that the acts committed by Serbians were designed to displace the Croatians by force, but not to annihilate them. Consequently, due to the lack of proof, the ICJ held that Croatia failed to substantiate its claims. (Id. at 5.)
The ICJ stated that Croatian forces killed members of the Serbian group and caused serious mental or bodily harm to those who had remained within the territory under the control of Croatia’s armed forces. However, the rest of the allegations put forward by Serbia failed to convince the ICJ that such acts constituted the physical element of the crime of genocide. (Id.) Concerning the mental element of the crime of genocide, the ICJ held that even though the acts were committed against the Serbian group, they were not substantial enough to indicate genocidal intent. Consequently, the ICJ rejected Serbia’s counterclaim. (Id.)