Nuclear Disarmament Reappears at the International Court of Justice

The politics of nuclear disarmament have, in recent times, simmered as a threat to the international order, enlivened every so often by a new round of talks or a major push for reform. On rare occasions, the issue has spilled into the international legal sphere.

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Common Article 2 as a paradigmatically challenging threshold for the application of IHL – Rob McLaughlin

Our blog mini-series, co-hosted with the ICRC, wraps up with a post by Associate Professor Rob McLaughlin, Co-Director of the ANU Centre for Military and Security Law.  Dr McLaughlin shares his reflections on common article 2 and the important question of when IHL must be applied.

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A genocidal act: The forcible transfer of Bosnian Muslims from Srebrenica (with reference to Krstic and Jelesic) – Sophocles Kitharidis

The term genocide is commonly seen within political and legal dialogues as describing atrocities of great ‘diversity, magnitude, and character’ (David Scheffer, ‘Genocide Atrocity Crimes‘ (2006) 1(3) Genocide Studies International 229).  In the Convention on the Prevention and Punishment of the Crime of Genocide, genocide attaches to specific acts ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’ (article 2).

Referring to the forcible transfer of Bosnian Muslims from Srebrenica, the International Criminal Tribunal for the former Yugoslavia (ICTY) held in the Prosecutor v Krstic (Krstic) that ‘an intent to destroy only part of the group must nevertheless concern a substantial part thereof, either numerically or qualitatively’ (at [6]–[8]).  In addition, in Prosecutor v Jelisic (Jelisic) the ICTY Trial Chamber argued that ‘it is widely acknowledged that the intention to destroy must target at least a substantial part of the group’ (at [82]).

Examination of the meaning of ‘intent’, ‘substantial part’ and ‘destruction of part of a group’ is crucial to deconstructing the act of genocide within the context of forcible transfer.  This post will seek to contribute to this area by exploring the act of genocide in Bosnia and Herzegovina and examining the ICTY’s characterisation of the forcible transfer of Bosnian Muslims from Srebenica in Krstic and Jelesic.

Genocide, the ICJ and the development of a ‘Greater Serbia’

In examining the concept of genocide and the intention of the Serbian leadership during the 1992 mass killings in the former Yugoslavia in The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Genocide Case), the International Court of Justice (ICJ) held that Bosnia’s argument

does not come to terms with the fact that an essential motive of much of the Bosnian Serb leadership — to create a larger Serb State, by a war of conquest if necessary — did not necessarily require the destruction of the Bosnian Muslims and other communities, but their expulsion (at [372]).

This statement is concerning because it seems to suggest that forcible transfer is not a relevant consideration in determining whether or not genocide has taken place.  For this reason, among others, the ICJ’s acquittal of Serbia of the act of genocide has proved controversial (see, eg, Katherine Goldsmith, ‘The issue of Intent in the Genocide Convention and Its Effect on the Prevention and Punishment of the Crime of Genocide: Toward a Knowledge-based Approach’ (2010) 5(3) Genocide Studies and Prevention 238).

Vice President al-Khasawneh J issued a dissenting opinion in the Genocide Case, stating:

[c]oupled with population transfers, what other inference is there to draw from the overwhelming evidence of massive killings systematically targeting the Bosnian Muslims than genocidal intent? If the only objective was to move the Muslim population, and the Court is willing to assume that the Bosnian Serbs did not only that which is strictly necessary in order to achieve this objective, then what to make of the mass murder? If the Court cannot ignore that population transfer was one way of achieving the Strategic Goals, then why should it ignore that, in fact, the Bosnian Serbs used this method as one of many — including massive killings of members of the protected group (at [41]).

The destruction of a ‘substantial part’ of ‘part of a group’

As described above, genocide is the commission of a ‘prohibited act’ ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’.  The prohibited acts are set out in article 2  and include, for example, killing or causing serious bodily or mental harm to members of the group.

The crime of genocide is  somewhat unique as it requires that two forms of mens rea or intent be established.  The first is that a person must commit a prohibited act with intent.  The second layer of intent is genocidal intent or dolus specialis, which is the intent to destroy the group. As provided in Prosecutor v Akayesu, the

[s]pecial intent of a crime is the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged … [and] the crime of genocide lies in the intent to destroy, in whole or in part, a national, ethnical, racial or religious group (at [498]).

In Jelisic, the ICTY discussed two ways in which genocidal intent may be established:

[i]t may consist of desiring the extermination of a large number of members of the group in which case it would constitute an intention to destroy a group en masse. However, it may also consist of the desired destruction of a more limited number of persons selected [i.e. leadership of the group] for the impact that their disappearance would have upon the survival of the group as such. This would then constitute an intention to destroy the group ‘selectively’ (at [82]).

The Trial Chamber in Jelisic also ruled that the act of genocide may be conducted within a ‘limited geographic zone … limited to the size of a region or … a municipality’ (at [83]). This was revisited in Krstic, where the Trial Chamber  resolved that

the physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue (emphasis added) (at [590]).

‘Part’ must be interpreted as a large or substantial part of the group at hand, and with the ability to have a significant impact on the entire group (at [43]). This test has been reformulated thus:

  • in Jelisic as ‘targeting at least a substantial part of the group’; and
  • in Prosecutor v Sikirica where the court found that there must exist intention to destroy a large number of a group that is relative to the entire population of that group, and as such, negatively impact the survival of that group.

How then does forcible transfer tie in with establishing the existence of intent to destroy whole or part of a group?

With regard to the situation in Srebrenica, the Court in Krstic held that whilst the act of forcible transfer is not itself a genocidal act, it may be taken into account as evidence of the existence of genocidal intent (at [33]).  Shahbuddeen J, in his partially dissenting opinion argued that

standing alone, forcible transfer is not genocide. But in this case the transfer did not stand alone, and that indeed is the basis on which the Appeals Chamber rejected the defence argument that it showed that there was no genocide. It was part — an integral part — of one single scheme to commit genocide, involving killings, forcible transfer and destruction of homes. In particular, it showed that the intent with which the killings were done was indeed to destroy the Srebrenica part of the Bosnian Muslim group. (at [35])

A more conservative approach was adopted by the Trial Chamber of the ICTY in Prosecutor v Brdjanin (Brdjanin).  The Court agreed with the view expressed in Kristic that while the act of forcible transfer does not itself constitute genocide, it does not give reason to prevent the use of this act being relied on as evidence to demonstrate intent.  However, the Trial Chamber qualified this rule by stipulating that it is not appropriate to use forcible transfer as substantial evidence of the actual destruction of a particular group, ‘since that would in effect mean the consideration, as it were through the back door, of forcible displacement as an underlying act’ (at [975)]).

In Brdjanin ,the Court was ultimately not satisfied that the forcible transfers of Bosnian Muslims and Bosnian Croats gave rise to specific intent.  It stated that

the existence of the specific intent required for the crime of genocide must be supported by the factual matrix.  The extremely high number of Bosnian Muslim and Bosnian Croat men, women and children were forcibly displaced from [Autonomous Region of Krajina] … particularly when compared to the number of Bosnian Muslims and Bosnian Croats subjected to the acts enumerated in Article 2(4)(a), (b) and (c) [of the Genocide Convention], does not support the conclusion that the intent to destroy the groups in part, as opposed to the intent to forcibly displace them, is the only reasonable inference that may be drawn from the evidence (at [976]).

Conclusion

It is indisputable that establishing the crime of genocide is difficult.  This is due, in large part, to the difficulty of proving that genocidal intent was present in the mind of the perpetrators.  The act of forcible transfer — despite not being a ‘prohibited act’ — may assist a court to determine that there existed genocidal intent.  In certain situations, the forced transfer of persons belies a wider strategy to bring about the physical destruction of a race by removing a people from a region and thereby eliminating the residual possibility that the group could be reconstituted in the area.

Sophocles Kitharidis is a public international law adviser and consultant to the International Affairs Division of the Thai Ministry of Justice. He is the former Vice President of the International Law Association (Victoria) and he holds a Master of Laws in Public International Law from the University of Melbourne. 

Case Note: Application of the Convention on the Prevention and Punishment of Genocide – Sarah Fitzgerald

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.