In today’s International Court of Justice judgment in the case of Croatia v. Serbia, the question of what constitutes specific intent, or dolus specialis, arose in relation to the issue of “the meaning and scope of a destruction of a group”. (paras 132-148) The case centers on Croatia accusing Serbia of “breach[ing] the Genocide Convention […] between 1991 and 1995[,] and Serbia contend[ing] that Croatia is itself responsible for breaches of the Convention committed in 1995[.]” (para. 52)
Regarding Croatia’s claim, the Court found that the “dolus specialis has not been established by Croatia, [and therefore] its claims of conspiracy to commit genocide, direct and public incitement to commit genocide, and attempt to commit genocide also necessarily fail”, (para. 414) and therefore the claim was dismissed in its entirety. (para. 441) The Court dismissed Serbia’s counter-claim in its entirety, (para 521) on the basis of “the Court[’s finding] that it has not been proved that genocide was committed during and after Operation “Storm” against the Serb population of Croatia”, (para. 515) as “ the existence of the dolus specialis has not been established.” (para. 515)
In considering whether genocide occurred, the Court determined whether the intent to destroy, in whole or in part, was “the only reasonable inference” that could be drawn from the evidence of instances of violence and forced displacement. (para. 147) However, considering the number of people who died and were targeted, and the range of possible motivations for the wartime conduct in question, it is possible that the ICJ set too high of a standard in determining genocidal intent. It is also possible that the question should not have been did a genocide occur, but did acts of genocide occur, and was the ICJ equipped to effectively handle this question in a case between two States.
- The Central Question: Dolus Specialis and Group Destruction
The question that the judgment rests on is whether the dolus specialis of genocide had been shown by Croatia and Serbia, respectively. Recalling that “‘the 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 crimes[,] dolus specialis […] must be present in addition to the intent required for each of the individual acts involved[.]” (para. 132) Other central issues are “[(1)] the meaning and scope of ‘destruction of a group’, (2) on the meaning and destruction of a group ‘in part’, and finally (3) on what constitutes the evidence of the dolus specialis.” (para. 133)
The parties differed in their interpretation of what it means to physically or biologically destroy a group, with Croatia’s view summarized as following: “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.” (para. 134) Serbia’s theory of destruction is summarized as following: “what counts is the intent to destroy the group in a physical sense, even if the acts listed in Article II [of the Genocide Convention of 1948] may sometimes appear to fall short of causing such physical destruction.” (para. 135)
2. The Scale of Destruction, in Whole or in Part
The Court noted that the Convention was designed only to cover physical or biological genocide, and not cultural genocide, (para. 136) and that the scale of destruction of a group is not necessarily tied to the number of victims, (para. 142), but reaffirmed the “‘substantial part’” requirement, which was articulated in the Prosecutor v. Krstić Appeal Judgment. (para. 142) It is worth remembering that in Krstić, the Appeals Chamber considered the thoughts of Raphael Lemkin, particularly his statement that “‘the destruction in part must be of a substantial nature so as to affect the entirety.’” (Appeal Judgment, para. 10) Significantly, the Court decided “[to] take into account the quantitative element as well as evidence regarding the geographic location and prominence of the alleged targeted part of the group.” (para. 142; see also paras 402-437)
3. Destruction as Evidence of Dolus Specialis, and What Constitutes Destruction?
a. The Actus Reus of Genocide against Croats
Serbia and Croatia agreed that in the absence of direct evidence outlining a State’s genocidal policy, indirect evidence, or in this case evidence of destruction, could constitute evidence of dolus specialis. (para. 143) In considering the merits of the case, the Court considered the many instances of violence and attacks during the war, such as the siege of Vukovar, noting that this was an attack that was “directed at the then predominantly Croat civilian population”. (para. 218, see also para 219, 224) Overall, the Court found that the actus reus of genocide had occurred under Article II (a), killing members of the protected group (para. 295); Article II (b), causing serious bodily or mental harm to members of the group (para. 360); and Article II (d), measures intended to prevent births within the group (para. 401); but not for Article II (c), deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. (para. 394)
b. Attempting to Establish Dolus Specialis
One of the arguments that Croatia submitted was that the presence of “systematic policy of targeting Croats with a view to their elimination from the regions concerned” indicated dolus specialis, (para. 408) listing 17 factors, such as “Serbian expansion”, (para. 408) arguing that “[a]ll these elements indicate […] the existence of a pattern of conduct from which the only reasonable inference is an intent to destroy, in whole or in part, the Croat group.” (para. 409)
The Court considered many attacks, such as at Vukovar, “the purpose [of which] was also to punish the town’s Croat population, but not to destroy it.” (para. 412) In relation to the dolus specialis requirement, the Court distinguished between attacking a group considered to be an enemy with the intent of punishing it, and attacking a group with the intent of destroying it, in whole or in part. (para. 430) It is difficult to accept that in each of the situations of violence described in the judgment, the perpetrators did not at least possess the knowledge that their acts would amount to destruction of a group, in whole or in part.
c. “Only Reasonable Inference” – Too High of a Threshold?
The Court essentially dismissed Croatia’s claim on the basis of lack of dolus specialis. (para. 440) In establishing that dolus specialis did not exist, the Court considered many instances of violence and forced displacement, in some cases finding that the actus reus of genocide was present. However, the Court’s argument that the intent to destroy, in whole or in part, must be “the only reasonable inference” (para. 146) that may be determined from considering wartime conduct is perhaps setting too high of a bar for the mental element of genocide. Wartime generates many behaviors, and the motivation for genocidal acts, or destructive acts, may have been drawn from other sources, such as the desire to create “an ethnically homogenous Serb State”. (para. 426) It is possible that in this instance, the Court did not adequately consider that the intent to commit genocide existed alongside other aims in the conduct of hostilities and that genocidal acts occurred.