Croatia and Serbia – a missed opportunity for the ICJ

The International Court of Justice has chose to remain confined within the dictates of the 1948 Genocide Convention, instead of expanding its scope through proactive judicial activism. The International Criminal Tribunal for Rwanda, for instance, in its Akayesu judgment, demonstrated that it was possible to expand the definition; ruling that rape and sexual violence also constitute genocide. The case of Croatia-Serbia is therefore a missed opportunity for the ICJ. 

By Kirthi Jayakumar

The International Court of Justice recently closed one chapter of the long-running dispute between Serbia and Croatia. Croatia had contended that Serbia was guilty of genocide during its war of independence from the erstwhile SFRY (Socialist Federal Republic of Yugoslavia) from 1991 until 1995 – at which point the SFRY occupied one-third of Croatia’s territory. Serbia countered that Croatia was guilty of genocide during the 1995 Croat offensive, known as ‘Operation Storm’. In its ruling, the 17-member panel of judges at the International Court of Justice (ICJ) ruled that neither side was guilty of genocide, although serious crimes were committed between 1991 and 1995.

Fifteen years after the dispute was brought to the court, justice appears to take on shades of diplomacy. This not only reiterates the need to reform international judicial institutions, but to reconsider the definition and scope of the term genocide. Furthermore, the ICJ’s decision reflects a continuing sacrifice of justice in pursuit of peace; without the far-sighted understanding that true and sustainable peace can only come if built on the foundations of justice.

Is the ICJ redundant?

The ICJ has jurisdictional control over UN member states only if they consent to being bound by its jurisdiction. The consent-based jurisdiction clause was an attempt to retain the sovereign equality of states in international relations. The decisions of the court do not even have a precedential value – given that they do not bind anyone other than the parties to the decision. Concluding that the ICJ is not an overarching power is not, therefore, entirely wrong; even though it has the primary responsibility for settling disputes between states on the principles of law, equity, justice and good conscience.

On occasion, given the nature of the field in which it operates, the ICJ is called upon to decide on essentially political differences between two states. Sometimes these issues touch upon a question of law – which when expounded upon becomes a judgment that is nothing like domestic legal disputes, where court interpretations become a part of the law itself. One of these instances, it appears, is the recent case between Croatia and Serbia.

In deciding that neither country is liable for genocide, one of two things has happened. Either the ICJ missed an opportunity to explain the law in a manner that it extends to penalizing the crime it was set out to; or, it really is an egregious failing in itself by succumbing to a political calling. The Genocide Convention of 1948 definition of genocide refers to the destruction of a group or a part of a group with the intention to destroy the group using one of these five essential elements, namely:

• killing of the members of an ethnic, national, racial or religious group; or
• inflicting serious bodily or mental harm on the members of the group; or
• deliberately causing such life conditions for the group with the aim its physical partial or overall destruction; or
• imposing measures intended to prevent births within the group; or
• forcibly transferring children of the group to another group.

The ICJ ruled that neither side was liable for genocide, in-line with the above mentioned elements. Between 1991 and 1995, approximately 20,000 were killed. Deciding that the killings did not constitute genocide, yet asking both sides to proceed towards offering reparations to the victims of such violations, is nothing short of blowing hot and cold. By allowing a slip between the cup and lip purely on technical interpretations of the law, the ICJ has effectively withheld a judicial perspective and instead offered a diplomatic win-win response that ignores justice. It drives home a rather sad truth – that the approximately 20,000 deaths in the conflict will remain unaccounted for. The ICJ had a window of opportunity to expound the law, and to look at the larger interests of the global community in its progress towards peace built on the edifice of justice.

In not taking this opportunity, the ICJ either made a deliberate choice to remain confined within the dictates of the 1948 law as opposed to expanding its scope through proactive judicial activism; or an inherent incapacity to serve the purpose it was created for – by remaining apolitical. It isn’t necessarily true that the ICJ cannot afford to expand the meaning of the term – the International Criminal Tribunal for Rwanda expanded the scope of the definition in its ruling in the Akayesu judgment, where it held that rape and sexual violence constitute genocide.

Should we redefine genocide?

The 1948 Genocide Convention defines the crime of genocide. As mentioned above, the definitive scope is broken down into five elements that need fulfilling. It is important, as in most crimes, that there be both – an actus reus (an outward act) and a mens rea (an intention to commit the act). Genocide is carried out with an intent to destroy in whole or in part, a national or an ethnic group, through a) killing members of the group; b) causing serious bodily or mental harm to members of the group; c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) imposing measures intended to prevent births within the group; and e) Forcibly transferring children of the group to another group.

In straitjacketing the structure and dimensions of the term genocide, the focus becomes very narrow. The convention’s definition of genocide includes only four groups that were victims at a time when the Second World War ended – while the scope and dimensions of target communities in genocidal policies have expanded. Second, genocide is not about the numbers – whatever may have been the intended scope of the definition in its original form, currently, the offence has been perceived with numbers in mind. Genocides can be small or large in number – and the way the term group is defined and perceived can alter the way the crime itself is treated. Without too many specifics being listed, the wide net that is cast is a loophole in itself, easy to escape the rubric of the law. Another hazy area in the definition of genocide is the deciphering of intent – given that it is rather difficult to identify the intention, it must be clear from the nature of the act itself.

Peace without Justice

The immediate impact of the ICJ’s decision is that it is disparaging to sustainable peace between both nations. In situations where people fear reprisals and an immediate relapse into war, amnesty is given in exchange for undisturbed peace. But this is a band-aid; the undercurrent of unresolved tensions remains. The peace process will invariably suffer. If the foundations aren’t strong, then there will be great difficulties in arriving at a consensus on the reparations that are to be awarded. The ICJ ruling could have assisted reconciliation between both nations. Whilst restorative and transitional justice are making inroads in the hope of settling things with amity, this decision could be equivalent to pressing the undo button. The ICJ has chosen to remain confined within the dictates of the 1948 Genocide Convention, instead of expanding its scope through proactive judicial activism. The International Criminal Tribunal for Rwanda, for instance, in its Akayesu judgment, demonstrated that it was possible to expand the definition; ruling that rape and sexual violence also constitute genocide. The case of Croatia-Serbia is therefore a missed opportunity for the ICJ.

Kirthi Jayakumar is a Lawyer, specialized in public international law and human rights. A graduate of the School of Excellence in Law, Chennai, Kirthi has diversified into research and writing on public international law and human rights. She has worked as a UN Volunteer, specializing in human rights research in Africa, India and Central Asia and the Middle East. She also runs a journal and consultancy that focuses on international law, called A38.

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