On the Entirely Predictable Outcome of Croatia v. Serbia

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This week the International Court of Justice delivered its judgment in the genocide case brought by Croatia against Serbia. The result was entirely predictable: the Court quite correctly dismissed both the Croatian claim and the Serbian counterclaim. I wrote about this on the blog before (here and here), and have also written a reaction piece intended for a lay audience for the Serbian online magazine Pescanik, which is available in English here. The nationalist reactions to and misinterpretations of the judgment in Croatia and Serbia have been equally predictable, if no less tiresome.

For its part, the Court displayed a laudable degree of both restraint (which is after all de rigueur for the ICJ) and consensus (not so much). The Court’s general approach was entirely consistent with its 2007 Bosnian Genocide judgment: repeatedly finding that acts that qualified as the actus reus of genocide were committed, but without the necessary mens rea (genocidal intent), so that there was no genocide, while the Court had no jurisdiction to determine state responsibility for any other internationally wrongful act. While there are some interesting paragraphs regarding the assessment of evidence etc, the Court basically completely followed the factual findings of the ICTY (including the controversial Gotovina appeals judgment), and rightly so. By following this general approach the Court entirely avoided some of the most interesting legal issues raised in the case, for example the question of state succession to responsibility (i.e. whether Serbia could have succeeded to the responsibility for a wrongful act of its predecessor state, the SFRY), or the question of the attribution to Serbia of the conduct of the Croatian Serb separatists by virtue of the relevant control tests.

The one question that did divide the Court was the issue of its temporal jurisdiction under the compromissory clause in Article IX of the Genocide Convention. By 11 votes to 6 the Court found that it did have the jurisdiction to examine Serbia’s responsibility for genocide allegedly committed by the SFRY (i.e. before Serbia’s independence) by virtue of succession to responsibility, while finding that it ultimately did not need to decide on the succession question because no genocide was committed (most notably during the destruction of the town of Vukovar by the Yugoslav National Army). A number of judges wrote separately on this point of the temporal extent of the Court’s jurisdiction.

On all other matters the judges were either unanimous or virtually unanimous. Even the Serbian judge ad hoc voted for the dismissal of the Serbian counterclaim, while the Croatian claim was rejected by 15 votes to 2, the two being the Croatian judge ad hoc (who wrote a rather half-hearted three-page dissenting opinion, which doesn’t really say much except that he dissents) and Judge Cancado Trindade. Judge Cancado Trindade indeed did not disappoint; in an awesome display of his Cancadotrindadeness he wrote an opinion of some 142 pages (the Court having written a total of 153), dissenting about, well, everything. The summary of his conclusions runs from ‘first’ to ‘fourty-fifth,’ and in Latin, as is only proper (that’s quadragesimus quintus for you h8ers out there).

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Bill Bowring says

February 6, 2015

Quite right, Marko - and great to see you in Moscow

Tim Staal says

February 6, 2015

indeed, judge CT should have focused on the point he most obviously disagrees with, i.e. the presence/absence of mens rea.

I do find it interesting that CT is citing mostly ICTR cases in his short and indeed not very convincing discussion of mens rea, whereas the court only cites ICTY cases. Does anyone know if the standard the two tribunals apply is different?

Andrew Drzemczewski says

February 6, 2015

And what do you think of the following passage from the dissent of Judge Cançado Trindade:

"496. The present case concerning the Application of the Convention against Genocide (Croatia versus Serbia) provides yet another illustration of the pressing need to overcome and move away from the dogmatic and strict inter-State outlook, even more cogently. In effect, the 1948 Convention against Genocide, - adopted on the eve of the Universal Declaration of Human Rights, - is not State-centered, but rather people-centered. The Convention against Genocide cannot be properly interpreted and applied with a strict State-centered outlook, with attention turned to inter-State susceptibilities. Attention is to be kept on the justiciables, on the victims, - real and potential victims, - so as to impart justice under the Genocide Convention."

Luka Misetic says

February 6, 2015

The ICJ did not simply "follow" the findings of the Gotovina Appeals Judgment. It reinforced them. The Court noted Serbia's arguments that the Gotovina judgment was "controversial," and conducted an independent review of the Brioni transcript (paragraphs 501-507). The Court concluded at paragraph 472: "Serbia has indeed drawn the Court’s attention to the controversy
aroused by the Appeals Chamber’s Judgment. However, no evidence, whether prior or subsequent to that Judgment, has been put before the Court which would incontrovertibly show that the Croatian authorities deliberately intended to shell the civilian areas of towns inhabited by Serbs. In particular, no such intent is apparent from the Brioni Transcript...".

Accordingly, the ICJ judgment is a strong reaffirmation of the Majority holding in Gotovina. It also undermines Marko Milanovic's analysis of the Gotovina Appeals Judgment in "The Gotovina Omnishambles," where he wrote:

"Judge Pocar correctly argued that when examined in light of all the other evidence on the record (i.e., the 2 August Order mentioned above, eye witness testimony about shelling operations in the Four Towns, the post-Operation Storm Croatian property laws of a discriminatory nature which made it almost impossible for Serbs to own property in Croatia, and the installation of Croatian settlements in Krajina, in homes deserted by the Serbs), the Brioni transcript reflected discussion about the forceful manner in which civilians would be driven out permanently, not conversations about protecting such civilians and relocating them temporarily."

The ICJ obviously disagreed. It re-examined all of the evidence in the record before the ICTY (including the 2 August 1995 order, eyewitness testimony, property laws, etc). Seventeen ICJ judges (including the ad hoc Judge appointed by Serbia) unanimously agreed with the Gotovina Majority's interpretation of the Brioni transcript, thus putting a decisive end to the so-called "controversy" about the Gotovina Appeals Judgment.

Full disclosure for those unaware: I was counsel for Ante Gotovina during the ICTY proceedings.

Otavio Drummond says

February 6, 2015

Judge Cançado Trindade´s dissent quotes plenty of case-law from the ICTY on the threshold of evidence required to prove the mens rea of genocide. He quotes, for example, the following assessment of the Appeals Chamber in the Karadzic case:

“As recognised by the Trial Chamber, in the absence of direct evidence, genocidal intent may be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership in a particular group, the repetition of destructive and discriminatory acts, or the existence of a plan or policy” (par. 80)

The question is: why does the majority of judges of the ICJ insist on an extremely high threshold of evidence which ultimately defeats the objective and purpose of the Genocide Convention. Or, as Cançado Trindade states, a high standard of proof finds no justification in international State responsibility, “aiming only at declaratory and compensatory relief, where a simple balance of evidence would be appropriate”.

Luis Jardón says

February 6, 2015

Your "Cancadotrindadeness" is as good as Pellet's "droit de l'hommisme". They might actually be synonyms.

Vitoria says

February 6, 2015

"Cançadotrindadeness" is but a variation of "droit-de-l'hommisme": another case of the perfect as the enemy of the good.

Thank you Marko for this post. You didn't disappoint either.

Susan Kemp says

February 7, 2015

While the outcome may be the correct one, Otavio Drummond is correct to highlight the questionable approach to specific intent. At first sight it seems to compound the error on the same issue in the Cassese commission Darfur report.

Merlin27 says

February 9, 2015

Marko, read the interview with dr. Mirjan Damaška re. this ICJ verdict: http://direktno.hr/en/2014/medijski_partneri/8102/Prof-Dama%C5%A1ka-Napustio-sam-pravni-tim-zbog-Londona-i-Milanovi%C4%87a.htm. i think he is that Croatia should have sued Serbia not for genocide bur for NOT preventing it and that ONLY for the parts (Vukovar and perhaps Skabrnja) where it could have clearly proved the control of paramilitary forces by Belgrade. That would have raised our chances to get the same verdict as in BH vs. Serbia case for Srebrenica. Damaska was removed from the Croatian team just because he was thinking of changing the Croatian genocide suit in that direction. He also clearly stated that our current government (which concluded a strategic partnership with GB the first day of their mandate) did it all to make sure Serbia is not pronounced guilty. British part of the team did not want to even talk to him. That speaks a volume...and that is something prime minister Milanović, ex president Josipović (the one who worked on the genocide suit) and especially minister of foreign affairs Vesna Pusić (notorious for her workings always in the interest of Serbia, not Croatia)will have to explain to the Croatian public.

Vinicius Fox says

February 10, 2015

Judge Cancado Trindade is quite right in saying that the Court's majority did not examine the occurrences in all the municipalities mentioned by Croatia, but only in a few of them. He is also right in stressing that the Court did not take into account most of the witnesses´ statements, as it should. Moreover, the Court's majority did not examine thoroughly the historical origins and factual context of the case. The truth is that it was the dissenting judge who did all that work.

Merlin27 says

February 12, 2015

Is it correct to conclude that if "...By 11 votes to 6 the Court found that it did have the jurisdiction to examine Serbia’s responsibility for genocide allegedly committed by the SFRY (i.e. before Serbia’s independence) by virtue of succession to responsibility...", the Court in fact agreed with the notion of succession of state responsibility?

In her Declaration Judge Xue wrote: "Although the rules of State responsibility have developed considerably since the adoption of the Genocide Convention, little can be found about State succession to responsibility in the field of general international law."

In view of constant evolution of legal doctrines, could such decision of the Court (to examine the responsibility of Serbia for crimes committed while it was still SFRJ) be the beginning of the development of that missing part Judge Xue is talking about (i.e. state succession to responsibility in cases of dissolution of one country)?