User’s photos, Alisa Koljenšić Radić

User’s photos, Alisa Koljenšić Radić

Of course: The International Court of Justice correctly rejected both the genocide claim filed by Croatia and the counter-claim filed by Serbia.

Why of course? Because every international law expert who looked objectively at the two claims (including me, in these two texts) knew that the inevitable outcome would be the rejection of both claims. The chances of the ICJ deciding otherwise were equal to that of a direct asteroid hit on the Hague Peace Palace on 3 February 2015, 10 am local time. This is also evident from the consensus of the judges: the Croatian claim was rejected by 15 votes to 2 (one of the two being the Croatian ad hoc judge Vukas), while the Serbian counter-claim was rejected unanimously (including the Serbian ad hoc judge Kreca; the text of the judgment can be found here).

Of course, both the international law experts who represented Croatia and those representing Serbia knew full well what the outcome of the claims would be. Of course, they told this to their clients. Of course, both Croatian and Serbian politicians (and the Croatian ones in particular) found it much easier to waste huge sums of taxpayers’ money rather than explain to their electorate that the entire case is pointless, and why the claims should be withdrawn. Of course, they will continue to play dumb and claim that they did everything in their power, but the Court now made its decision, and that what is done, is done. Of course, both Serbian and Croatian nationalists will interpret the judgment as the confirmation of their own narrative of the ultimate victim, and, in doing so, will be willingly aided by pundits with pseudo-sophisticated stories about the supposedly Solomonic verdicts of a politicized court (which they don’t even bother to read). Of course.

How did those objective international law experts predict such a result? Because in this case both the law and the facts are so clear-cut that the Court had only one road to take. This road can be explained in a few short steps:

1. The jurisdiction of the International Court of Justice is exclusively consensual; states can be sued only if they accept to be sued, which they can do in several different ways.

2. In this case, both Serbia and Croatia accepted the ICJ’s jurisdiction by signing the 1948 UN Genocide Convention (with significant complications in the entire story, but this is something I do not want to discuss at this time).

3. Pursuant to Article 9 of the Convention, the Court has the jurisdiction to determine the responsibility of states only in regard to genocide, and not for other crimes against international law, like aggression, crimes against humanity, or war crimes. In other words, the Serbian and Croatian claims never concerned the responsibility for the conflict in Croatia as such, or some type of war reparations, but solely state responsibility for genocide. As soon as the Court determines that a crime without all of the elements of genocide has taken place, it loses the jurisdiction to determine the responsibility of a state for that act (see paragraphs 88-89 of the judgment). Furthermore, the jurisdiction of the Court is limited to the violations of the Convention as such, which cannot be applied retroactively to crimes committed before it came into force (including crimes committed in the Second World War).

4. The definition of the crime of genocide is considerably narrower in international law (as set out in Article 2 of the Convention) than in the colloquial, everyday use of this word. It requires the commission of particular acts, such as homicide, coupled with specific genocidal intent: that the act is committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such. Thus, genocide is not distinguished from crimes against humanity or war crimes by the number of people killed, or by the manner in which they were killed, but solely by the mental state of the perpetrator. Furthermore, only the four mentioned groups are protected under the legal definition of genocide – for instance, the killing of all political opponents, or of all people with disability, or of all individuals of a different sexual orientation living on a certain territory – would legally does not constitute genocide. The definition of genocide is so narrow that it made even Joseph Vissarionovich Stalin happy, so that he was perfectly willing to sign up to the Convention while killing millions of his political and class enemies.

5. Although many people were killed during the war in Croatia because of their ethnicity, no convincing proof of the existence of genocidal intent could be found for any of the crimes committed during that conflict. In order to prove the existence of genocide, it is not enough to prove that an individual was killed for being a Croat (or a Serb), but that the person who committed the crime wanted to contribute to the destruction of Croats (or Serbs) as a group. Even in the case of the much more vicious conflict in Bosnia, it was possible to prove genocide “only” for Srebrenica, as was held by the International Criminal Tribunal for the Former Yugoslavia, and confirmed by the International Court of Justice in its 2007 judgment regarding the genocide claim filed by Bosnia against Serbia. All other crimes committed during that war, from the siege of Sarajevo to the camps in Prijedor, were “only” crimes against humanity or war crimes, and, as such, fell outside the jurisdiction of the Court. If these crimes did not constitute genocide, then neither could the ethnic cleansing of Croats from Krajina at the beginning of the war in Croatia, nor the ethnic cleansing of Serbs at its end, constitute genocide, because the intent of those who committed the crimes was the expulsion, not the destruction of a protected group. This is why the ICTY never indicted, let alone convicted anyone for genocide in Croatia. This was very important for the International Court of Justice (see paragraphs 197 and 440 of the judgments), since in its deliberations it followed the factual findings in the final verdicts of the Tribunal to the letter.

Bearing these five steps in mind, the outcome of the Serbian and Croatian claims was perfectly clear. For it to decide the case differently, the Court would have had to disregard completely the practice of the Hague Tribunal as well as its own Bosnian genocide judgment – something which it was certainly not ready to do. This does not mean that crimes did not take place in Croatia – on the contrary – and this was confirmed by the Court with regard to, for example, murder, mistreatment and expulsion of ethnic Croats from the territory controlled by the Yugoslav National Army or the Croatian Serbs (see paragraphs 295, 360, 376, 401 of the judgment), as well as the killing by Croatian forces of an undetermined number of Serbian refugees who fled Krajina and the murder and mistreatment of Serbs who remained in Krajina (see paragraphs 485, 493, 499 of the judgment). Some of these crimes can be considered as constitutive acts (actus reus) of genocide, but, without the irrefutable proof of genocidal intent, they ultimately cannot considered to be genocide (see paragraphs 435, 440-441, 507, 510-515 of the judgment).

Hence, the ICJ could not determine the responsibility of either Serbia or Croatia for these crimes, regardless of the fact that such state responsibility may exist in law (see paragraphs 86 and 523 of the judgment). This also does not mean that Serbia (FRY) did not violate the UN Charter by using force against Croatia with its support to Krajina separatists – it did, but the Court did not have jurisdiction to even consider the issue of aggression, or the culpability for the war as such.

Thus, the outcome of this judgment was determined neither by Croatian or by Serbian diplomatic efforts, or by the political meddling of the great powers, but by the law and the facts. The real irony lies in the fact that, whatever the Court had decided, it would not have made any difference to the dominant nationalist narratives in either Croatia or Serbia. The entire purpose of the claim and counter-claim was precisely to strengthen these narratives. This is why they were not withdrawn, although both sides were quite aware of the inevitable outcome of the case. For Croatia, the war was a brilliant, untainted act of defense against Greater Serbian aggression, in which Croatia built its statehood, and during which crimes were never systematically committed by the Croatian side, but only on rare occasions by individuals for purely personal motives, like (understandable) revenge. The power of this narrative is such that even the liberal part of the Croatian political spectrum does not essentially deviate from it. Indeed, when filing the suit against Serbia, Croatia rather bizarrely claimed that Serbia is responsible not only for genocide against Croats, but also for genocide against Serbs in Croatia, whom it forced flee Croatia without any reason. Croatia later wisely dropped this claim. For Serbia, Serbs in Croatia are the victim of the supposedly greatest act of persecution since the Second World War. The Croatian Serbs only defended themselves, with some modest help from Belgrade, from a resurrected Ustasha movement and a new Jasenovac. There are equally no serious political forces in Serbia who deviate from this narrative of the victim-nation.

Thus, even had the Court accepted either the Croatian claim or the Serbian counter-claim, these two narratives would not have budged an inch. They would simply have interpreted the judgment as the validation of their own pre-existing beliefs. This is also the case with this, legally and factually completely correct judgment, which is destined to soon be forgotten. But this is our problem, not the ICJ’s.

The author is Associate Professor of International law at the University of Nottingham, Secretary-General of the European Society of International Law and member of the editorial board of the European Journal of International Law. He was Law Clerk to Judge Thomas Buergenthal of the International Court of Justice in 2006/2007.

Translated by Bojana Obradovic

Pešč, 06.02.2015.