International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2016 Issue



The Crime of Genocide and the International Court of Justice Judgment in 2015 in the Case of Croatia vs. Serbia

By: Mahmudul Hasan, Research and Publication Officer, Human Rights Support Center (HRSC), Bangladesh


From the beginning of international law concerns about genocide and other mass crimes, it was considered a category of crime against humanity, not having been prosecuted as a special crime. However, due in large part to the advocacy of Raphael Lemkin, Polish lawyer and American professor of law, genocide obtained autonomy as a specific crime. From the early biblical era to modern-day Sudan, this heinous crime has plagued the world in almost every corner of the globe. Since the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide (the Convention), the United Nation’s (UN) response has been paralyzed by legal debates about what the definition given in the Convention actually means, and whether a situation is or is not genocide, according to the definition in the Convention.

On February 3 2015 the UN International Court of Justice (ICJ) delivered the verdict about the controversy in the landmark case Croatia vs. Serbia. This case involved an “application” by the Republic of Croatia instituting proceedings against the FederalRepublic of Serbia “for violation of the Convention on Prevention and Punishment of The Crime of Genocide” The application was filed July 2, 1999 and the opinion ofthe Court was delivered on February 5, 2015.

The ICJ decided that neither Croatia nor Serbia committed genocide against each other during the wars that followed the break-up of Yugoslavia (1991-1995), as the evidence provided to the court by the Croatian and Serbian legal teams was inadequate to prove intent of genocide. Judge Peter Tomka, the President of the ICJ, said: “The court considers that even taken together, and interpreted in light of the contemporaries’ overall political and military context, do not establish the existence of the specific intent (dolus specialis) which characterizes genocide.”

This article firstly addresses the issue of definition of genocide by analyzing different allegations presented by parties of the case. Secondly it turns to the doctrine of specific intent as an essential requirement for genocide and the problem of its determination. Here it analyzes different scholastic approaches to the doctrine and whether ICJ inferred too high threshold of evidence for establishing dolus specilalis. The article summarizes the final outcome of the case and calls Croatia to continue prosecuting individual war crimes suspects and remove the impunity for war crimes or suspected war crimes given to thousands of Serbs. (The ICJ opinion in fact calls on both parties to work together to resolve outstanding issues, such as missing persons, lost property, and further criminal prosecutions.)

Definition of Genocide

The definition of the crime of genocide is considerably narrower in international law (as set out in Article 2 of the Convention) than in the colloquial, everyday use of this word.

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 that 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 requires an inquiry into intent. In addition, the characterization of the acts and their mutual relationship can contribute to an inference of intent.

Genocide, writes U.S. law professor Alexander K. A. Greenawalt, “is a crime of specific intent, involving a perpetrator who specifically targets victims on the basis of their group identity with a deliberate desire to inflict destruction upon the group itself.”

Different allegations raised by parties

In the ICJ case, the Parties differed on the meaning and scope of “destruction” of a group, on the meaning of destruction of a group “in part”, and finally on what constitutes the evidence of the dolus specialis.

The meaning and scope of “destruction” of a group

Physical or biological destruction of the group

Croatia argues that the required intent is not limited to the intent to physically destroy the group, but includes also the intent to stop it from functioning as a unit. Thus, according to Croatia, genocide as defined in Article II of the Convention need not take the form of physical destruction of the group. As evidence of this, it points out that some of the acts of genocide listed in Article II of the Convention do not imply the physical destruction of the group. By way of example, it cites “causing serious . . . mental harm to members of the group”, and “forcibly transferring children of the group to another group”.

Serbia, to the contrary, rejected this functional approach to the destruction of the group, taking the view that what counts is the intent to destroy the group in a physical sense, even if the acts listed in Article II may sometimes appear to fall short of causing such physical destruction. The Court noted that the travaux préparatoires of the Convention show that the drafters originally envisaged two types of genocide, physical or biological genocide. It was decided to limit the scope of the Convention to the physical or biological destruction of the group.

Scale of destruction of the group

Croatia contends that the extermination of the group is not required according to the definition of genocide as set out in Article II of the Convention. It argues that there is a requirement to prove that the perpetrator intended to destroy the group, in whole or in part, and that that intent need not necessarily involve the extermination of the group. Croatia has even argued that a small number of victims who are members of the group would suffice, citing the travaux préparatoires, and in particular the draft amendment proposed by the French delegation to the Sixth Committee of the General Assembly even though that proposal was ultimately withdrawn.

According to Serbia, extermination, as a crime against humanity, may be related to genocide in that both crimes are directed against a large number of victims. It accepts that, in order to demonstrate the existence of genocide, it is necessary to prove that the acts were committed with the intent to destroy the group physically. It argues, however, that, where there is evidence of extermination, “the deduction that the perpetrator intended the physical destruction of the targeted group will be much more plausible”.

The Court considers that Article II of the Convention, including the phrase “committed with intent to destroy”, must be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”, as prescribed by customary law as reflected in Article 31 of the Vienna Convention on the Law of Treaties.

The Preamble to the Genocide Convention emphasizes that “genocide has inflicted great losses on humanity”, and that the Contracting Parties have set themselves the aim of “liberating mankind from such an odious scourge”. As the Court noted in 1951 and recalled in 2007, an object of the Convention was the safeguarding of “the very existence of certain human groups.”

The Court recalls that, in 2007, it held that the intent to destroy a national, ethnic, racial dor religious group as such is specific to genocide and distinguishes it from other related criminal acts such as crimes against humanity and persecution.

The meaning of destruction of the group “in part”

Croatia accepts that, according to the case law of the Court and the international criminal tribunals, “the intent to destroy . . . in part” the protected group relates to a substantial part of that group. However, it objects to a purely numerical approach to this criterion, arguing that the emphasis should be on the geographical location of the part of the group, within a region, or a sub-region or a community, as well as the opportunities presented to the perpetrators of the crime to destroy the group.

Serbia focuses on the criterion that the targeted part of the group must be substantial and on the established case law in that regard, while accepting that it might be relevant to consider the issue of opportunity.

The Court recalls that the destruction of the group “in part” within the meaning of Article II of the Convention must be assessed by reference to a number of criteria. In this regard, it held in 2007 that “the intent must be to destroy at least a substantial part of the particular group” and that this is a “critical” criterion. Account must also be taken of the prominence of the allegedly targeted part within the group as a whole. With respect to this criterion, the Appeals Chamber of the ICTY specified in its Judgment rendered in the case of Bosnia and Herzegovina vs. Serbia and Montenegro that “if a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4 of the ICTY Statute, paragraph 2 of which essentially reproduces Article II of the Convention”



Evidence of the dolus specialis

State Policy

The ILC’s Draft Codes of Crimes against the Peace and Security of Mankind was one of the first detailed documents concerning what was meant by the word ‘‘intent’’ within the definition of genocide. Article 17 of this document focuses on the crime of genocide. Article 17(5) states that ‘‘an individual incurs responsibility for the crime of genocide only when one of the prohibited acts is committed with intent to destroy, in whole or in part, a group, as such.’’

The Parties agree that the dolus specialisis to be sought, first, in the State’s policy, while at the same time accepting that such intent will seldom be expressly stated. They agree that, alternatively, the dolus specialis may be established by indirect evidence, i.e., deduced or inferred from certain types of conduct. They disagree, however, on the number and nature of instances of such conduct required for this purpose.

In the absence of a State plan expressing the intent to commit genocide, it is necessary, in the Court’s view, to clarify the process whereby such intent may be inferred from the individual conduct of perpetrators of the acts contemplated in Article II of the Convention. In its 2007 judgment, the Court held that “the dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent.”

The International Criminal Tribunal for Rwanda defined intent as “the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged.” In other words, the specificity of the intention of the accused must be to "destroy, in whole or in part, a... group, as such" and not to kill in a seemingly random fashion.

The Problem of Determination of Intent

One of the most problematic facets of including ‘intent’ in the definition of genocide is that in addition to defining intent, the courts need to further determine whether the actions of the accused fit into the convoluted description of the requirement. In most cases, governments, groups and individuals accused of genocide are not explicit in their intentions. Without direct evidence, it is up to the courts to determine the intention of the accused.

The Akayesu trial sought not only to define specific intent as it is required to fulfill the crime of genocide, but also to discover how we can determine the intent of the accused in cases where it may be difficult to do so. The trial chamber noted that intent is a mental factor that is hard to determine without a confession or other direct evidence. For this reason, the chamber ruled that courts could infer intention based on a number of presumptions of facts. They stated:

It is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act.

Scholastic Approaches towards the Doctrine of Intent

The scholastic community has focused their attention on two prominent approaches of addressing the legal issues surrounding intent in genocide: a ‘structure-based approach,’ which focuses on the intended purpose and desire of each individual as they contribute to the genocide, and a ‘knowledge-based approach’ which emphasize an individual’s knowledge of the effects of his/her actions and how they affect the genocide as a whole.

The structure-based approach towards prosecuting the crime of genocide builds upon the requirement of special intent in determining the intention of the accused. Mathilde van Haren best defines the methodology in her report on the Darfur Commission (a commission established by the United Nations to investigate allegations of violations of international humanitarian law in Darfur, a region of north Africa), which took a structure-based approach to determining the specific intent of the accused genocidaires. She states, “The Commission seems to derive the requirement that the perpetrator must have consciously desired the destruction of a group from its assertion that the intent to destroy in whole or in part a protected group is an aggravated criminal intention or dolus specialis.” In other words, by taking a structure-based approach, the focus of determining the specific intent is on proving that the accused consciously desired the destruction of the group. This element of desire thereby allows for a workable definition of the specific intent that is required for a crime to be considered genocide.

Most prominently proposed by Professor Alexander Greenawalt, the ‘knowledge-based approach’ towards establishing the intent of accused genocidaires propose that principal culpability should extend to those who may lack a specific genocidal purpose, but who commit genocidal acts while understanding the destructive consequences of their actions. Through this understanding, we can establish the intention of an accused genocidaire based on whether he/she knew, or ought to have known, that their actions would ultimately lead to the destruction, in whole or in part, of a group. This approach addresses the inherent problem of distinguishing between the desires of low, mid and top-level perpetrators that is faced by the structure-based approach and instead allows courts to prosecute any and all members of a genocidal coterie. Given that it is highly unlikely for an individual to destroy a group by himself, it is clear that generally there must be multiple parties involved if an act is to be considered genocide. Therefore, “it is enough evidence if the individual commits an act knowing that it would contribute to other acts being committed against a particular group, which when put together, would bring about the destruction of that group, in whole or in part.”

Aim was displacement of Serbs not intent to destroy

In the present case, the Court notes that, as emerges in particular from the findings of the ICTY, forced displacement was the instrument of a policy aimed at establishing an ethnically homogeneous Serb State. The Court finds that the acts committed by the Yugoslav Peoples Army and Serb forces essentially had the effect of making the Croat population flee the territories concerned. It was not a question of systematically destroying that population, but of forcing it to leave the areas controlled by these armed forces. The Court therefore concludes that Croatia’s contentions regarding the overall context do not support its assertion that genocidal intent is the only reasonable inference to be drawn.

High Threshold of Evidence for Determining Genocide

The ICJ, both in the present case and earlier on, in the Bosnian Genocide case (2007), appears to have imposed too high a threshold of evidence for the determination of genocide, not in line with the established case-law of international criminal tribunals and of international human rights tribunals on standard of proof. After all Judge Cançado Trindade (Brazilian judge on the ICJ) comments: 

“The attempts to impose a high threshold for proof of genocide, and to discredit the production of evidence are most regrettable, ending up in reducing genocide to an almost impossible crime to determine, and the Genocide Convention to an almost dead letter. This can only bring impunity to the perpetrators of genocide and make any hope of access to justice on the part of victims of genocide fade away. Lawlessness would replace the rule of law”.


In conclusion the courts seem to be split: The ICTY has taken the restrictive approach, which has left it with questionable results. The ICTR, on the other hand, has convicted many defendants, both because Rwanda was clearly a case of genocide, but also because the ICTR has adopted a broader, knowledge-based interpretation and has convicted defendants on evidence of the person’s involvement and foresight.

To include an intent requirement that is extremely difficult to prove after the fact, and which is a contested term in many civil law countries, renders the Genocide Convention both confusing and ineffective. Such confusion makes the preventive purpose of the Convention nearly impossible to achieve.

So, according to ICJ there was genocide but it was not genocide because no such intent was proven in accordance with ICJ standards of proof that would include “destruction of a whole people or significant part of a whole people”. However, considering the number of people who were targeted and died, and the range of possible motivations for the wartime conduct in question, it is possible that the ICJ set too high standard in determining genocidal intent. It is also possible that the question should not have been did genocide occur, but did acts of genocide occur, and was the ICJ equipped to effectively handle this question in a case between two states.

And so what of the ICJ decision in Croatia vs. Serbia? There’s no appeal of it. The only things left are for Croatia And Serbia to continue prosecuting individual war crimes suspects, to remove the impunity for war crimes or suspected war crimes given to thousands of Serbs (absent any valid evidence against specific individuals), to pursue rigorously the destiny of the many war victims still recorded as missing and for researchers and historians and lawyers, who have no need to use political compromises, to keep addressing the facts and justice for the victims. 


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