Application of the Convention on the Prevention and

Punishment of the Crime of Genocide (Croatia v. Serbia)

OVERVIEW OF THE CASE

On 2 July 1999, Croatia filed an Application against the Federal Republic of Yugoslavia (FRY)
for violations of the Convention on the Prevention and Punishment of the Crime of Genocide.
As basis for the Courts jurisdiction, Croatia invoked Article IX of that Convention to which,
according to it, both Croatia and Yugoslavia were parties. The Memorial of Croatia was filed on
1 March 2001, within the time-limit fixed by the Court for that purpose. On 11 September 2002,
Yugoslavia filed preliminary objections to the jurisdiction of the Court and to the admissibility of
the claims made by Croatia and, pursuant to Article 79, paragraph 3, of the Rules of Court adopted
on 14 April 1978, the proceedings on the merits were suspended.

The Court delivered its Judgment on the preliminary objections on 18 November 2008. It began
by considering the first preliminary objection relating to the question of Serbias access to the
Court, taking particular account of its 2004 decision that Yugoslavia did not have access to the
Court in 1999 when it filed its Applications against the NATO countries in the cases concerning
the Legality of Use of Force. The Court observed that, while its jurisdiction should normally be
assessed on the date of the filing of the act instituting proceedings, it had also shown flexibility in
certain situations in which the conditions governing the Courts jurisdiction were not fully satisfied
when proceedings were initiated but were subsequently satisfied, before the Court ruled on its
jurisdiction. It concluded in this respect that the Court was open to the FRY as of 1 November
2000, when the latter was readmitted as a Member of the United Nations and ipso facto became a
party to the Statute of the Court. The Court reasoned, therefore, that it was in a position to uphold
its jurisdiction if it found that Serbia was bound by Article IX of the Genocide Convention the
instrument invoked by Croatia as the basis for the Courts jurisdiction on 2 July 1999, the date
on which the proceedings were instituted, and that it remained bound by that Article until 1
November 2000.

In this connection, the Court noted that, by a declaration of 27 April 1992 and a Note of the same
date, the FRY stated that it would continue to fulfil all the rights conferred to, and obligations
assumed by, the Socialist Federal Republic of Yugoslavia [SFRY] in international relations,
including its membership in all international organizations and participation in international
treaties ratified or acceded to by Yugoslavia. In the light of the text of the declaration and Note
of 27 April 1922, and of Yugoslavias consistent conduct throughout the years 1992-2001, the
Court ruled that the declaration and the Note had the effect of a notification of succession by the
FRY to the SFRY in relation to the Genocide Convention, including Article IX thereof, which
provided for the Courts jurisdiction. It concluded that it had, on the date on which the proceedings
were instituted by Croatia, jurisdiction to entertain the case on the basis of Article IX, and that that
situation had continued at least until 1 November 2000, the date on which Serbia and Montenegro
became a Member of the United Nations and thus a party to the Statute of the Court. Having
concluded that Serbia had acquired the status of party to the Courts Statute on 1 November 2000,
that it was bound by the Genocide Convention, including Article IX thereof, on the date on which
the proceedings were instituted and that it remained so until at least 1 November 2000, the Court
rejected Serbias first preliminary objection.

The Court then considered the second preliminary objection of Serbia that the claims based on
acts and omissions which took place prior to 27 April 1992 that is to say before Serbia existed
as a State were beyond its jurisdiction and inadmissible. The Court found that such a
preliminary objection raised the question of the applicability of the obligations under the Genocide
Convention to the FRY before 27 April 1992 and whether consequences should be drawn with
regard to the responsibility of the FRY for those same facts under the general rules of State
responsibility. The Court stated that it could not determine these questions without to some degree
determining issues properly pertaining to the merits of the case, and that since the objection raised
was not exclusively preliminary in character, it would have to be dealt with at the merits stage,
when the Court would be in possession of greater evidence.

Lastly, the Court addressed Serbias third preliminary objection that claims relating to the
prosecution of certain persons within the jurisdiction of Serbia, the provision of information
regarding the whereabouts of missing Croatian citizens and the return of cultural property were
beyond the jurisdiction of the Court and inadmissible. With respect to the submission of persons
to trial, the Court found that it would consider this question when it examined Croatias claims on
the merits. With respect to the provision of information regarding the whereabouts of Croatians
missing since 1991 and the return of cultural property, the Court indicated that the question
whether remedies might appropriately be ordered was one which was dependent upon the findings
that the Court might make of breaches of the Genocide Convention by Serbia, and that that
question was not a question which could be the proper subject of a preliminary objection. The
Court thus rejected the third preliminary objection of Serbia in its entirety.

Having rejected the preliminary objections or, in the case of one of them, ruled that it was not
exclusively preliminary in character, the Court fixed 22 March 2010 as the time-limit for the filing
of a Counter-Memorial by the Republic of Serbia. That pleading, containing counter-claims, was
filed on 4 January 2010. By an Order of 4 February 2010, the Court directed the submission of a
Reply by Croatia and a Rejoinder by Serbia. It fixed 20 December 2010 and 4 November 2011,
respectively, as the time-limits for the filing of those written pleadings. The Reply and Rejoinder
were filed within the time-limits thus fixed. By an Order of 23 January 2012, in order to ensure
strict equality between the Parties, the Court decided to authorize the submission by Croatia of an
additional written pleading relating to the counter-claims of Serbia. Croatia filed the additional
pleading within the time-limit of 30 August 2012 as fixed by that Order.

The Court delivered its Judgment on 3 February 2015. The Court first considered the scope of its
jurisdiction, which, in its view, was founded exclusively on Article IX of the Genocide
Convention. Recalling that, in its Judgment of 18 November 2008, it had found that it had
jurisdiction over events which took place after 27 April 1992 (the date when the FRY became
party, by succession, to the Genocide Convention) and noting that the Parties were in disagreement
on a number of questions relating to events which took place prior to that date, the Court considered
that, since it would need to decide those questions in order to determine whether Serbia was
responsible for violations of the Convention, it had jurisdiction to entertain Croatias claim in its
entirety.

The Court then turned to the merits of the Parties claims. It recalled that, under the terms of the
1948 Convention, the crime of genocide contains two constituent elements. The first is the physical
element, namely the acts perpetrated (which are set out in Article II and include, in particular,
killing members of the group (subpara. (a)) and causing serious bodily or mental harm to members
of the group (subpara. (b))). The second is the mental element, namely the intent to destroy, in
whole or in part, a national, ethnical, racial or religious group as such. Regarding Croatias claim,
the Court considered that, in the regions of Eastern Slavonia, Western Slavonia, Banovina/Banija,
Kordun, Lika and Dalmatia, the JNA and Serb forces had committed acts falling under
subparagraphs (a) and (b) of Article II. Taking the view, however, that it had not been established
that the acts reflected a genocidal intent, the Court found that Croatia had not proved that genocide
or other violations of the Convention had been committed. It accordingly dismissed the claim in
its entirety. Regarding Serbias counter-claim, which was found to be admissible, the Court
concluded that, during and after Operation Storm, Croatian forces had perpetrated acts falling
within paragraphs (a) and (b) of Article II. Considering, however, that genocidal intent had not
been demonstrated, the Court found that neither genocide nor other violations of the Convention
had been proved. It accordingly rejected the counter-claim in its entirety.