Gil Camaymayan

Lyceum Law

Summary of the case on application of the Convention on the Prevention and

Punishment of the Crime of Genocide (Croatia vs. Serbia)
Both parties to the case are states that emerged as a result of the break-up of the SFRY
(Socialist Federation Republic of Yugoslavia). After the declaration of independence of
Croatia, an armed conflict had broken out between Croatia and the Serb-forces and
JNA (Yugoslav National Army) who opposed to its independence, for the Serb-forces
and JNA controlled around one third of the Croatian territory. It was during the said
conflict that the alleged genocide has been committed. The said incident was the basis
for Croatia to file a suit against the Federal Republic of Yugoslavia which transformed
into Serbia and Montenegro, which was eventually dissolved and making Serbia as it
legal successor, for violation of the convention on the Prevention and Punishment of the
Crime of Genocide. Serbia counter-filed a genocide lawsuit against Croatia on incident
that had occurred during the so called Operation Storm where Croatia was re-taking
the greater part of its territory that it has lost control of. The question of jurisdiction of the
ICJ was settled and ruled that the court has jurisdiction on both the claim and counter
claim of both parties.
In determining the applicable law to be use the court looked into Article II if the
Genocide Convention. It has defined Genocide as any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as
such: (a) Killing a member of the group; (b) Causing serious bodily or mental harm to
member 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; (e) Forcibly transferring children of the group
to another group. It was observed by the court that Genocide contains two constituent
elements which are the physical element or actus reus (the acts perpetuated) and the
mental element or mens rea (the intent to destroy the group as such). The court has
indicated that it is the mens rea or the intent to destroy in whole or in part the national,
ethical, racial or religious group which was the essential characteristic of Genocide and
which distinguish it from other serious crimes. It is the specific intent (dolus specialis)
that established the genocide, which must be present in addition to the intent required
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Gil Camaymayan

Lyceum Law

for each of the individual acts. The intent must be to the physical or biological
destruction of the protected group or substantial part of it. Evidence of such intent could
be shown either on the state policy or to the pattern of conduct base from the acts in
question.
The court finds that the actus reus of genocide has been established base on acts
committed by the JNA and Serb forces against member of the ethnic Croats but the
intentional element (dolus specialis) of genocide was lacking and accordingly rejects the
claim of Croatia entirely. The absence of direct evidence of such intent, the court has
consider whether a pattern of conduct has been established in order to draw a
reasonable inference as an intent on the part of the perpetrators but it was not the case,
and that the crimes committed against the ethnic Croats were aimed as the forced
displacement of the majority of the Croat population from the regions and not at its
physical or biological destruction. In the absence of necessary proof on the intent,
Croatia has failed to substantiate its allegations that a breach of the convention was
committed.
In regards to the counter claim of Serbia, the court finds that the actus reus of genocide
was established through the acts committed during and after the so called operation
Storm which falls within Article II of the convention but the intentional element of
genocide was lacking, thus its counter-claim was rejected entirely. The court has
considered that over the course of the said military operation, the existence of intent to
destroy in whole or in part the national or ethnical group of the Serbs in Croatia has not
been proved for the acts committed were not perpetuated in a scale that could
reasonably demonstrate the existence of a genocidal intent. That neither Genocide nor
other violation of the Genocide convention has been proved.