By Natasha Kuhrt
Although the International Court of Justice has taken 16 years to decide that neither Serbia nor Croatia have a case against each other, the judgment is nevertheless of interest for several reasons.
Firstly, it reminds us that the ICJ is primarily a judicial organ (part of the United Nations system) but that it is sometimes asked to rule on what are primarily unresolved political issues between States (e.g. Kosovo’s Declaration of Independence).
Furthermore, decisions of the ICJ have no binding force except between the parties and only for that case.
Secondly, it reminds us of the politically charged nature of the definition of genocide even in a court of law.
Because the Convention on the Prevention and Punishment of Genocide (1948) entails a particular definition of genocide which is quite narrow.
In the present ICJ case, both Serbia and Croatia have sought to expand this definition to cover crimes which in some cases have been characterised as genocidal acts, possibly of ethnic cleansing, but not genocide per se.
The ICJ has determined that despite the fact that while some acts carried out on both sides constituted the actus reas (intent) to commit genocide, the Court could not establish the dolus specialis (specific intent) to commit genocide.
The ICJ can now draw on the jurisprudence of the International Criminal Tribunal for former Yugoslavia (set up in 1994 by the UN Security Council under Chapter 7 powers and still holding trials) and the ICJ notes that the ICTY has never charged an individual with a count of genocide committed against Croats between 1991 and 1995.
In essence, the ruling of the ICJ that neither Serbia’s claim nor Croatia’s counterclaim constitute genocide, is not so much evidence of the court’s weakness, as rather symptomatic of the difficulty inherent in the Genocide Convention itself.
This is principally due to the very narrow definition of genocide as requiring proof of specific intent to destroy a religious, national, ethnical or racial group in whole, or in part. The ICJ has found no such specific intent here.
Ultimately this case shows the politically motivated nature of the claims and counterclaims by both Serbia and Croatia, which cannot be upheld legally.
(Dr Natasha Kuhrt is a Lecturer at the King’s College London Department of War Studies. This article is reproduced from “The Telegraph”)