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The Actus Reus of Genocide in the Croatia v. Serbia Judgment: Between Legality and Acceptability

  • CAROLINE FOURNET

Abstract

The long-awaited verdict of the International Court of Justice in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case between Croatia and Serbia brought to an end the speculations as to whether or not a finding of genocide would be reached. After lengthy considerations on the genocidal actus reus, the Court dismissed all the claims of genocide, based on the lack of genocidal intent. If this conclusion is perfectly in line with established law and case law, its wider readability and acceptability outside of the legal microcosm is perhaps doubtful. How can a judgment which recognizes that acts falling within the list of proscribed genocidal acts have been committed but which then refutes their qualification as genocidal due to a lack of specific intent be explicable to those who lost their loved ones in what they feel was an enterprise of destruction?

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1 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Merits, Judgment of 3 February 2015.

2 1948 Convention for the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277.

3 See Art. 2 of the ICTR Statute, Art. 4 of the ICTY Statute, and Art. 6 of the ICC Statute.

4 See, e.g., Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 28 May 1951, [1951] ICJ Rep. 15; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Merits, Judgment of 26 February 2007, [2007] ICJ Rep. 43.

5 See Croatia v. Serbia, supra note 1, para. 359. See also ibid., para. 523.

6 Prosecutor v. Gacumbtsi, Judgment, Case No. ICTR-2001-64-T, T. Ch. III, 17 June 2004, para. 251. See also Prosecutor v. Kayishema and Ruzindana, Judgment, Case No. ICTR-95-1-T, T. Ch. II, 21 May 1999, para. 100; Prosecutor v. Semanza, Judgment and Sentence, Case No. ICTR-97-20-T, T. Ch. III, 15 May 2003, para. 318; Prosecutor v. Kajelijeli, Judgment and Sentence, Case No. ICTR-98-44A-T, T. Ch. II, 1 December 2003, para. 812; Prosecutor v. Kamuhanda, Judgment, Case No. ICTR-95-54A-T, T. Ch. II, 22 January 2004, para. 631.

7 Prosecutor v. Akayesu, Judgment, Case No. ICTR-96-4-T, T. Ch. I, 2 September 1998, para. 499.

8 Ibid., para. 521. See also Prosecutor v. Rutaganda, Judgment and Sentence, Case No. ICTR-96-3, T. Ch. I, 6 December 1999, para. 60; Prosecutor v. Musema, Judgment and Sentence, Case No. ICTR-96-13-A, T. Ch. I, 27 January 2000, paras. 153–4 and 165; Prosecutor v. Bagilishema, Judgment, Case No. ICTR-95-1A-T, T. Ch. I, 7 June 2001, para. 61; Prosecutor v. Semanza, supra note 6, para. 312; Prosecutor v. Niyitegeka, Judgment, Case No. ICTR-96-14-A, A. Ch., 9 July 2004, para. 50. Emphasis added.

9 See Croatia v. Serbia, supra note 1, paras. 149–66.

10 Supra note 4.

11 Croatia v. Serbia, supra note 1, para. 157.

13 Ibid., para. 158. The only reference to the Akayesu case was made by Croatia in support of its contention that measures had been taken to prevent births within the group; a reference that the ICJ however failed to uphold. See ibid., para. 164.

14 Prosecutor v. Akayesu, supra note 7, para. 731. Footnote omitted. Emphasis added.

15 Prosecutor v. Gotovina, Čermak and Markač, Judgment, Case No. IT-06-90-T, T. Ch. I, 15 April 2011 and Prosecutor v. Gotovina, Čermak and Markač, Judgment, Case No. IT-06-90-A, A. Ch., 16 November 2012.

16 See Croatia v. Serbia, supra note 1, para. 355.

17 UN General Assembly, Report of the Human Rights Council, UN Doc. A/67/53/Add. 1, p. 28, paras. 26–29. The right to the truth has also been recognized in a number of resolutions (see e.g., UN Commission on Human Rights, Human Rights Resolution 2005/66: Right to the Truth, UN Doc. E/CN.4/RES/2005/66; UN Human Rights Council, Council Decision 2/105: Right to Truth, UN Doc. A/HRC/21/L.16, and UN Human Rights Council, Council Resolution 9/11: Right to Truth; UN Human Rights Council, Council Resolution 12/12: Right to Truth), instruments (see UN General Assembly, International Convention for the Protection of All Persons from Enforced Disappearance, UN Doc. A/61/448, Art. 24(2)) and judicial decisions (see Inter-American Commission and Court of Human Rights and European Court of Human Rights). This right is also at the heart of transitional justice following mass atrocities with the recent proliferation of truth and reconciliation commissions, which have been specifically set up to complement judicial proceedings and to recount the meaning of events so as to ensure the return and the maintenance of peace. More recently, the General Assembly of the United Nations adopted a resolution explicitly recognizing ‘the importance of respecting and ensuring the right to the truth so as to contribute to ending impunity and to promote and protect human rights’, UN General Assembly, Resolution Adopted by the Human Rights Council 21/7: Right to the Truth, UN Doc. A/HRC/RES/21/7.

18 Croatia v. Serbia, supra note 1, para. 160.

20 Ibid., paras. 356 and 523.

21 Prosecutor v. Krstić, Judgment, Case No. IT-98-33, T. Ch. I, 2 August 2001, para. 486. Footnote omitted.

22 Prosecutor v. Akayesu, supra note 7, para. 502.

23 Prosecutor v. Kayishema and Ruzindana, supra note 6, paras. 110 and 113.

24 Prosecutor v. Gacumbtsi, supra note 6, para 291.

25 Prosecutor v. Seromba, Judgment, Case No. ICTR-2001-66-A, A. Ch., 12 March 2008, para. 46.

26 Croatia v. Serbia, supra note 1, para. 523. See also ibid., para. 359.

27 Schabas, W., Unimaginable Atrocities – Justice, Politics, and Rights at the War Crimes Tribunals (2012), at 99124.

28 Ibid., at 102.

29 Croatia v. Serbia, supra note 1, para. 401.

30 Ibid., para. 499.

* Associate Professor, Rosalind Franklin Fellow, Vakgroep Strafrecht & Criminologie, Rijksuniversiteit Groningen, Faculteit Rechtsgeleerdheid, Groningen [].

Keywords

The Actus Reus of Genocide in the Croatia v. Serbia Judgment: Between Legality and Acceptability

  • CAROLINE FOURNET

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