Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) - The Court rejects Croatia's claim and Serbia's counter-claim

INTERNATIONAL COURT OF JUSTICE
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Press Release

Unofficial

No. 2015/4
3 February 2015

Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Croatia v. Serbia)

The Court rejects Croatia’s claim and Serbia’s counter-claim

THE HAGUE, 3 February 2015. The International Court of Justice (ICJ), the principal
judicial organ of the United Nations, today delivered its Judgment in the case concerning
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia).

In its Judgment, which is final, without appeal and binding for the Parties, the Court

(1) Rejects, by eleven votes to six, the second jurisdictional objection raised by Serbia and finds

that its jurisdiction to entertain Croatia’s claim extends to events prior to 27 April 1992;

(2) Rejects, by fifteen votes to two, Croatia’s claim;

(3) Rejects, unanimously, Serbia’s counter-claim.

Procedural history

The Court recalls that, on 2 July 1999, the Republic of Croatia filed an Application
instituting proceedings 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 of 9 December 1948 (“Genocide Convention” or “Convention”) committed

between 1991 and 1995. On 18 November 2008 the Court delivered a Judgment partially rejecting
the preliminary objections raised by the Respondent (which had then become Serbia). Serbia
subsequently filed a counter-claim.

Public hearings on one of the objections (which had been found in 2008 not to be of an
exclusively preliminary character), as well as on the merits of Croatia’s claim and Serbia’s
counter-claim, were held from 3 March to 1 April 2014. - 2 -

The Court’s reasoning

1. Historical and factual background

The Court begins by giving a brief account of the historical and factual background to the
case. It recalls, first, that both Parties are sovereign States which emerged from the break-up of
the Socialist Federal Republic of Yugoslavia (“SFRY”) and outlines the events that resulted in their
establishment as such.

The Court further describes the main events that took place in Croatia between 1990

and 1995. It notes in particular that, shortly after the latter’s declaration of independence on
25 June 1991, an armed conflict broke out between, on the one hand, Croatia’s armed forces and,
on the other, forces opposed to its independence (namely forces created by part of the Serb
minority within Croatia and various paramilitary groups, to which the Court refers collectively as
“Serb forces”, irrespective of the issue of attribution of their conduct) and  at least from
September 1991  the Yugoslav National Army (“JNA”). By late 1991, these Serb forces and the

JNA controlled around one-third of Croatian territory within its boundaries in the SFRY, a situation
which lasted until 1995. It was during this conflict that the genocide alleged by Croatia is claimed
to have been committed. Finally, the Court describes how, during the spring and summer of 1995,
Croatia succeeded, as a result of a series of military operations, in re-taking the greater part of the
territory of which it had previously lost control. It was during Operation “Storm”, in August 1995,
that the genocide alleged by Serbia in its counter-claim is claimed to have taken place.

2. Jurisdiction and admissibility

The Court then turns to the question of the scope of its jurisdiction. It recalls that the latter is
founded exclusively on Article IX of the Genocide Convention. That Article clearly states that
jurisdiction thereunder is confined to disputes concerning the interpretation, application or
fulfilment of the Convention itself, and the Court accordingly concludes that it has no power to rule
on a dispute concerning alleged breaches of obligations in respect of genocide imposed by

customary international law, or of other international obligations (for example, those arising under
international humanitarian law or international human rights law).

(a) Jurisdiction and admissibility of Croatia’s claim

(i) The Court finds that it has jurisdiction to entertain Croatia’s claim in its entirety

The Court recalls that, in its Judgment of 18 November 2008, it found that it had jurisdiction

to rule on Croatia’s claim in respect of acts committed as from 27 April 1992 (the date when the
FRY came into existence as a separate State and became party, by succession, to the Genocide
Convention), but reserved its decision on its jurisdiction in respect of breaches of the Convention
alleged to have been committed before that date.

After examining the Parties’ arguments on this second question, the Court finds that it has
jurisdiction to rule on the whole of Croatia’s claim, including that part of it relating to events prior
to 27 April 1992. In this regard, the Court begins by stating that the FRY could not have been

bound by the Genocide Convention before 27 April 1992, which is the main argument of Croatia.
It takes note, however, of an alternative argument relied on by the Applicant, namely that the FRY
(and subsequently Serbia) could have succeeded to the responsibility of the SFRY for breaches of
the Convention prior to that date. The Court states that, in order to determine whether Serbia is
responsible on this basis for breaches of the Convention, it would have to decide: - 3 -

(1) whether the acts relied on by Croatia took place; and, if they did, 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 are in disagreement on these questions, the Court considers that there is a

dispute between them falling within the scope of Article IX of the Convention (“disputes . . .
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 accordingly has jurisdiction to rule on it. The Court explains that, in
reaching that conclusion, it is not necessary to decide on the above questions, which are matters for
the merits.

(ii) The Court need not decide the questions of admissibility raised by Serbia before
considering the merits of Croatia’s claim

The Court notes that Serbia argues that Croatia’s claim is inadmissible because the FRY
cannot be held responsible for acts alleged to have taken place before it came into existence as a
State on 27 April 1992. The Court observes, however, that this argument involves questions of
attribution, on which it is not necessary to rule before considering on the merits the acts alleged by

Croatia.

The Court further notes Serbia’s alternative argument that Croatia’s claim is inadmissible
because it relates to events prior to 8 October 1991, the date when Croatia came into existence as a
State and became party to the Convention. The Court observes, however, that Croatia has not
made discrete claims in respect of the events before and after 8 October 1991; rather, it has
advanced a single claim alleging a pattern of conduct increasing in intensity throughout the course
of 1991. In this context, the Court considers that what happened prior to 8 October 1991 is, in any

event, pertinent to an evaluation of whether what took place after that date involved violations of
the Genocide Convention. In these circumstances, the Court considers that it is not necessary to
rule upon Serbia’s argument before it has examined and assessed the totality of the evidence
advanced by Croatia.

(b) The Court finds that Serbia’s counter-claim is admissible

The Court recalls that, to be admissible, a counter-claim must satisfy two conditions (Rules
of Court, Article 80). First, it must come within the jurisdiction of the Court, which is the case
here, since Serbia’s claim falls within the scope of the Court’s jurisdiction under Article IX of the
Genocide Convention. The Court finds that the second condition is also satisfied, in as much as the
counter-claim is directly connected with the subject-matter of the main claim, both in fact and in
law. The Court accordingly finds that Serbia’s counter-claim is admissible. - 4 -

3. Applicable law: the Convention on the Prevention and Punishment of the Crime of

Genocide

The Court recalls that, under the terms of Article II of the 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”. The Court observes that genocide thus contains two constituent elements, namely
the physical element or actus reus (the acts perpetrated), and the mental element, or mens rea (the
intent to destroy the group as such).

First, regarding the mental element, the Court indicates that it is the “intent to destroy, in
whole or in part, a national, ethnical, racial or religious group as such” which is the essential
characteristic of genocide, and 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. The Court
explains that what must be intended is the physical or biological destruction of the protected group,
or of a substantial part of that group. Evidence of that intent is to be sought, first, in the State’s
policy (although such intent will seldom be expressly stated), but it can also be inferred from a
pattern of conduct, where such intent is the only reasonable inference to be drawn from the acts in
question.

Secondly, regarding the physical element, the Court analyses the scope and meaning to be
given to the prohibited acts listed in subparagraphs (a) to (d) of Article II of the Convention.

4. Questions of proof

In this part of the Judgment, the Court addresses questions of the burden of proof, the
standard of proof and the methods of proof applicable in the present case. It recalls in particular

that it is, in principle, for the party alleging a fact to demonstrate its existence, and that claims
against a State involving charges of exceptional gravity must be proved by evidence that is fully
conclusive. The Court further lays down certain principles governing consideration of the evidence
submitted by the Parties (documents from the International Criminal Tribunal for the former
Yugoslavia, various types of reports, written statements of witnesses).

5. Consideration of the merits of Croatia’s claim

(a) The Court finds that the actus reus of genocide has been established

The Court considers whether acts constituting the actus reus of genocide, within the meaning
of subparagraphs (a) to (d) of Article II of the Convention, were committed by the JNA or Serb
forces against members of the national or ethnical Croat group (ethnic Croats) between 1991
and 1995. Following an analysis of the evidence in the case file, the Court concludes that, in the
regions of Eastern Slavonia, Western Slavonia, Banovina/Banija, Kordun, Lika and Dalmatia, the

JNA and Serb forces perpetrated both killings of members of the national or ethnical Croat group
and acts causing serious bodily or mental harm to members of that group. The Court finds that
these acts constitute the actus reus of genocide within the meaning of subparagraphs (a) and (b) of
Article II of the Convention. On the other hand, the Court is not persuaded that acts capable of
constituting the actus reus of genocide have been proved in relation to subparagraphs (c) and (d) of
Article II of the Convention. - 5 -

(b) The Court finds that the intentional element of genocide (dolus specialis) is lacking, and
accordingly rejects Croatia’s claim in its entirety

Having found that the actus reus of genocide is established, the Court then addresses the
question of whether the acts perpetrated reflect a genocidal intent. In the absence of direct
evidence of such intent (for an example an express policy to that effect), it considers whether a
pattern of conduct has been established from which the only reasonable inference to be drawn is an
intent on the part of the perpetrators of those acts to destroy a substantial part of the group of ethnic
Croats. The Court concludes, however, that this is not the case. It notes in particular that the

crimes committed against ethnic Croats appears to have been aimed at the forced displacement of
the majority of the Croat population from the regions concerned, and not at its physical or
biological destruction.

In the absence of proof of the necessary intent, the Court finds that Croatia has failed to
substantiate its allegation that genocide or other breaches of the Convention were committed. It
accordingly rejects Croatia’s claim in its entirety and considers that it need not rule on other
matters, such as the attribution of the acts found to have been committed, or succession to

responsibility.

6. Consideration of the merits of Serbia’s counter-claim

(a) The Court finds that the actus reus of genocide is established

On the basis of the evidence before it, the Court concludes that, during and after

Operation “Storm”, in August 1995, forces of the Republic of Croatia perpetrated acts falling
within subparagraphs (a) and (b) of Article II of the Convention: (i) killings of members of the
national or ethnical Serb group who were fleeing or had remained within the areas of which
Croatian forces had taken control; and (ii) acts constituting serious bodily or mental harm to
members of the group. On the other hand, the Court considers that, for the rest of its allegations,
Serbia has either failed to substantiate them (in particular, the indiscriminate shelling of various
towns by Croatian forces) or has not shown that the acts in question constitute the actus reus of
genocide.

(b) The Court finds that the intentional element of genocide (dolus specialis) is lacking, and
accordingly rejects Serbia’s counter-claim in its entirety

After considering both the transcript of the meeting held on the island of Brioni under the
chairmanship of the President of the Republic of Croatia, Franjo Tudjman, in order to prepare
Operation “Storm”, as well as the overall course of the military operations conducted by Croatia

during the period 1992-1995, the Court considers that the existence of an intent to destroy, in whole
or in part, the national or ethnical group of the Serbs in Croatia has not been proved in this case. In
particular, while acts constituting the actus reus of genocide were committed, they were not
perpetrated on a scale such that they could only reasonably demonstrate the existence of a
genocidal intent. The Court finds that neither genocide nor other violations of the Genocide
Convention have been proved. It accordingly rejects Serbia’s counter-claim in its entirety.

Composition of the Court

The Court was composed as follows: President Tomka; Vice-President Sepúlveda-Amor;
Judges Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood,
Xue, Donoghue, Gaja, Sebutinde, Bhandari; Judges ad hoc Vukas and Kreća; Registrar Couvreur. - 6 -

President OMKA appends a separate opinion to the Judgment; Judges WADA , KEITH and
SKOTNIKOV append separate opinions to the Judgment; Judge C ANÇADO TRINDADE appends a
dissenting opinion to the Judgment; Judges X UE and D ONOGHUE append declarations to the
Judgment; Judges G AJA, SEBUTINDE and BHANDARI append separate opinions to the Judgment;
Judge ad hoc VUKAS appends a dissenting opinion to the Judgment; Judge ad hocREĆA appends

a separate opinion to the Judgment.

*

A summary of the Judgment appears in the document “Summary No. 2015/1”. This press
release, the summary of the Judgment and its full text can be found on the Court’s website
(www.icj-cij.org), under the heading “Cases”.

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Note: The Court’s press releases do not constitute official documents.

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