Introduction

In February, the International Court of Justice handed down its decision in Application of the Convention on the Prevention and Punishment of Genocide (Croatia v Serbia) and concluded that Croatia and Serbia did not commit genocide during the events of 1991–95 after the break up of the Socialist Federal Republic of Yugoslavia (SFRY). The proceedings were brought by the Republic of Croatia in 1999, with Serbia filing a counter-claim in 2010, resulting in a 16 year court case and a lengthy judgement (with an outcome considered by one commentator as virtually inevitable) that ultimately dismissed both parties claims of genocide. Whilst many commentators question the point of the case (neither Serbia and Croatia wanted to withdraw due to political pressure) and lawyers on both sides privately expressed little expectation of winning prior to judgment, the decision does provide some interesting comments on the application of the Genocide Convention and is a reminder of the narrowness of the legal definition of genocide.

History

After the break up of the SFRY, approximately 20,000 people are thought to have died and millions displaced, during the 1991–95 conflict. The International Criminal Tribunal for the former Yugoslavia (ICTY) has not charged any former leaders from Serbia or Croatia with genocide. It has previously ruled that genocide occurred in Bosnia at Srebrenica (where 8,000 Bosnians were killed over a number of days), but found that Serbia was guilty of failing to prevent genocide and punish the perpetrators.

Notable legal arguments

The claim was brought under the Genocide Convention, and the Court found that the crime of genocide consists of the actus reus (physical element) and mens rea (mental element) which must constitute dolus specialis (specific intent). Regarding intent, the Court stated that

‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such’ is the essential characteristic of genocide, 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. (at paragraph 132)

Croatia argued that its attacks were not indiscriminate and did not violate international law. Serbia argued that even if attacks had been conducted in compliance with international humanitarian law, they could still constitute the actus reus of genocide.  The Court however, stated that they would not ‘rule, in general or abstract terms, on the relationship between the Convention and international humanitarian law’ (at paragraph 153) and held that they did not have the power to determine disputes relating to obligations under customary international law (or international humanitarian law or international human rights law).

The Court considered Croatia’s claim and found that members of the ethnic group (in its pleadings Croatia defined the group as the Croat national or ethnical group on Croatian territory not contested by Serbia) had been killed by or suffered serious mental or bodily harm from Serb forces, constituting the actus reus element.  Other claims put forward by Croatia, such as deprivation of food and medical care, were not established by Croatia and therefore did not constitute the actus reus element.

The Court found that members of the Serbian group had been killed or suffered serious mental or bodily harm, also constituting the actus reus element. However, other claims put forward by Serbia of looting and the destruction of property, did not constitute the actus reus element.

Ultimately, dolus specialis was missing from both parties’ claims. The Court said at paragraph 440 that such intent must be ‘the only reasonable inference that can be drawn from the pattern of conduct it relied upon was the intent to destroy, in whole or in part, the Croat group’. This ‘only reasonable inference’ requirement sets a high bar, and the Court found that Serbia’s assault on Vukovar was to expel the Croats, not destroy, and Croatia’s expulsion of Serbs in Krajina was also missing the specific intent to destroy.

Serbia also put forward an argument about ICTY case law, contending that decisions by the Appeals Chamber of the ICTY should not be given more weight than the Trial Chamber’s. Serbia used the Gotovina case as an example: the Trial Chamber was unanimous in their conviction, but the Appeals Chamber acquitted by a majority of three to two, meaning that a majority across the Gotovina case judged Croatian forces guilty. Unsurprisingly, the Court rejected Serbia’s argument and found at paragraph 471 that they must give greater weight to the Appeals Chamber Judgement, whilst ‘ultimately retaining the power to decide the issues before it on the facts and the law’.

The Court also discussed the weight to be given to charges of the ICTY. Serbia considered that the Court should accord it some degree of probative value, but Croatia said that as the Prosecutor has discretion to determine what charges to bring, that does not mean that there is no evidence for the existence of a different charge.  The Court did state however that they could not

fail to note that the indictment in the case of the highest ranking defendant of all, former President Milosevic, did include charges of genocide in relation to the conflict in Bosnia and Herzegovina, whereas no such charges were brought in the part of the indictment concerned with the hostilities in Croatia. (at paragraph 187)

Dissent

Judge Trindade’s dissent (which was almost as long as the judgment itself, and concluded with a quadragesimus quintus point summary) should be noted, as he largely used the principle of humanity as a basis for arguing that the acts constituted genocide. There is a detailed analysis by Professor Dov Jacobs of that dissent here, which notes the irony of using ‘facts and values’ to conclude that genocide occurred, when ‘values’ and ‘conscience’ are used by many as justification for genocide.

Future relations

The judgment cannot be appealed and the Court’s final statement at paragraph 523 encourages ‘the Parties to continue their co-operation with a view to offering appropriate reparation to the victims of such violations, thus consolidating peace and stability to in the region’. Croatia became a member of the European Union in 2013 and now supports Serbia’s application for membership. However, one obstacle to Serbia’s application is the resolution of wartime issues, including the extradition case of Australian citizen Daniel Snedden, wanted in Croatia for crimes committed during 1991–93.

High Court the final avenue for Australian war crimes suspect Daniel Snedden

A former ICTY prosecution witness against the late Serbian President Slobodan Milosevic, Daniel Snedden (also known as Dragan Vasiljkovic) is wanted by Croatian authorities on charges of three war crimes offences alleged to have occurred during his time commanding a ‘special purpose’ Serbian paramilitary unit between 1991 and 1993. Mr Snedden is alleged to have commanded troops who tortured and killed prisoners of war and to have commanded an assault where civilians were killed.

Mr Snedden has been held in Australia and has challenged his extradition for over eight years, with the Federal Court dismissing the latest appeal. Mr Snedden’s lawyers are filing an application to the High Court to review procedural fairness and the Minister’s interpretation of the Geneva Conventions. Mr Snedden’s lawyer, Dan Mori (who previously represented David Hicks), said that his main concern is that Mr Snedden will not be protected by the Geneva Convention upon return to Croatia. Mr Mori has previously said that he was intrigued by Mr Snedden’s case

because it raises issues about the fairness of having an extradition process that does not require the requesting country to provide any evidence. So, based on a 15-page document, someone has been locked up for almost eight years.

The High Court application is not likely to be determined for a number of months.

Sarah Fitzgerald is a solicitor at an international law firm in Sydney. She has previously interned at the Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia.