The ICJ Decision on the Genocide between Croatia and Serbia

On February the 3^rd 2015, the international Court of Justice (ICJ) issued its decision in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Croatia v. Serbia). The ICJ found that neither Croatia nor Serbia committed genocide. The UN Charter established the International Court of Justice in 1945. Together with its predecessor, the Permanent Court of International Justice (PCIJ), it is referred to as the World Court. It settles legal disputes between states and gives advisory opinions. The ICJ judgements in contentious cases are final and binding on the parties involved in the legal disputes.

After the breakup of the former Socialist Federal Republic of Yugoslavia a number of new states emerged, namely: the republics of Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia. These states faced an economic crisis that lasted almost 10 years and tension grew between that its different ethnic and national groups. Croatia and Slovenia declared independence; Croatia, Slovenia, and Bosnia and Herzegovina were admitted as Members of the United Nations, as was the former Yugoslav Republic. Soon thereafter tensions between the Government of the Republic of Croatia and the Serbs living in Croatia increased at the start of the 1990s.

Both Croatia and Serbia signed and ratified the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). Article IX of the Convention states: “any disputes between the contracting parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute”.

Article 1:  The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

Croatia and Serbia both claimed that the other committed genocide. First, Croatia claimed that Serbia’s responsibility for breaches of the Genocide Convention arose, as Serbia committed genocide against native and ethnic Croats during the armed conflict in 1991-1995. These crimes were allegedly committedby the Serbian irregular forces and the Yugoslav national army. When Croatia declared itself independent, the Serbs began their assault; thousands of people were killed and displaced. Croatia argued that this was an act of genocide led by President Slobodan Milosevic. It also wanted Serbia to pay compensation for the death and destruction inflicted on Croatia’s people.

According to article 31 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA),if a state commits an internationally wrongful act against another state, it should make full reparation for the injury caused. Also according to Article 34 full reparation should be in form of restitution, compensation and satisfaction, either singly or in combination.

The ICJ found that there was no intentional act of genocide from the Serbian groups. International law, specifically the 1948 Genocide Convention, defines genocide as an intentional act committed to destroy, in whole or in part, a national, ethnical, racial, or religious group. According to the Genocide Convention, genocide consists of two elements: the physical actor actusreus, and the mental element of intention known as dolus specialis.

The ICJ found that Croatia has not established the inference that can be drawn from the pattern of conduct it relied upon as intention to destroy the Croat group. Furthermore, it stated that the actus reus of genocide of Article II a) and b) of the Genocide Convention were not committed with the specific intent that is required to be labeled as genocide.

On the other hand, Serbia accused Croatia of launching an operation that bombarded the majority ethnic-Serbs in 1995. Through a series of military operations, Croatia succeeded in reestablishing control over the territory that had previously been lost, which is Western Slavonia. Through Operation “Flash” and Operation “Storm”, the Croats defeated the Republic of Serbian Krajina. The closing of Croatia’s claim was that Serbia failed to validate its accusation that genocide was committed, and no issue of responsibility under the Convention for the charge of genocide can arise in the present case. There cannot be any question of responsibility for a failure to prevent genocide, a failure to punish genocide, or complicity in genocide.

The ICJ also denied that these events amounted to genocide, as the specific intent to destroy a national, ethnic, racial or religious group, which characterizes the crime of genocide, did not apply to the Krajina events. The Court stated that there was no proof that genocide was committed during and after the operation “Storm” that was against the Serb population of Croatia. Croatia therefore could not be considered responsible in the conspiracy to commit genocide or an attempt to commit genocide. Also the Court found that since Serbia failed to prove the existence of an act of genocide committed against the Serb population living in Croatia, there can be no breach of the obligation to punish genocide under Article VI of the Convention. For all of the foregoing reasons, the Court found that the counter-claim must be dismissed in its entirety.

The Court observed, “if a State is to be responsible because it has breached its obligation not to commit genocide, it must be shown that genocide as defined in the Convention has been committed. Although, the actus reus of genocide was apparent the intent was missing”. The Court stressed  that the intention to destroy in whole or in part a national, ethnic or religious group -as mentioned above- is an essential characteristic of genocide.

As the Court discharged the counter claims,  it returned to the issue of missing persons that was already addressed in the context of its examination of the principal claim. The ICJ noted that individuals also disappeared during the conflict and its immediate aftermath, requesting both parties to continue their co-operation in settling matters between them as soon as possible to address the issue of the fate of missing persons, and also offer reparation to the victims of such violations, for consolidating peace in the region.

In conclusion, mass killing of ethnic people should be prosecuted and there must be emotional validation for the victims and acknowledgement of their suffering. Genocide is a crime whose perpetrators are always individuals even though they might be a part of a group (governmental or non-governmental). Perpetrators may be prosecuted through the International Criminal Court (where it has jurisdiction) and similar ad hoc tribunals (such as the ICTY). Whereas such courts have jurisdiction over individuals, the ICJ has jurisdiction over States only.

The Court’s decision is in conformity with the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) which is a specialised, ad hoc criminal tribunal established by the United Nations Security Council to prosecute atrocities which took place during the conflicts in the Balkans in the 1990s.  According to the ICTY’s case law,  there were no charges of genocide in the conflict in Croatia. The ICTY prosecutor has never charged any individual on account of genocide against the Croat population in the context of the armed conflict.