Croatia v.

Serbia: Genocide and the

Dolus Specialis Question
FEBRUARY 3, 2015 / PARISA ZANGENEH / EDIT
In today’s International Court of Justice judgment in the case of Croatia v.
Serbia, the question of what constitutes specific intent, or dolus specialis, arose
in relation to the issue of “the meaning and scope of a destruction of a group”.
(paras 132-148) The case centers on Croatia accusing Serbia of “breach[ing]
the Genocide Convention […] between 1991 and 1995[,] and Serbia
contend[ing] that Croatia is itself responsible for breaches of the Convention
committed in 1995[.]” (para. 52)
Regarding Croatia’s claim, the Court found that the “dolus specialis has not
been established by Croatia, [and therefore] its claims of conspiracy to commit
genocide, direct and public incitement to commit genocide, and attempt to
commit genocide also necessarily fail”, (para. 414) and therefore the claim
was dismissed in its entirety. (para. 441) The Court dismissed Serbia’s
counter-claim in its entirety, (para 521) on the basis of “the Court[’s finding]
that it has not been proved that genocide was committed during and after
Operation “Storm” against the Serb population of Croatia”, (para. 515) as “ the
existence of the dolus specialis has not been established.” (para. 515)
In considering whether genocide occurred, the Court determined whether the
intent to destroy, in whole or in part, was “the only reasonable inference” that
could be drawn from the evidence of instances of violence and forced
displacement. (para. 147) However, considering the number of people who
died and were targeted, and the range of possible motivations for the wartime
conduct in question, it is possible that the ICJ set too high of a standard in
determining genocidal intent. It is also possible that the question should not
have been did a genocide occur, but did acts of genocide occur, and was the
ICJ equipped to effectively handle this question in a case between two States.

1. The Central Question: Dolus Specialis and Group Destruction

The question that the judgment rests on is whether the dolus specialis of
genocide had been shown by Croatia and Serbia, respectively. Recalling that
“‘the intent to destroy, in whole or in part, a national, ethnical, racial, or
religious group as such’ is the essential characteristic of genocide, which
distinguishes it from other crimes[,] dolus specialis […] must be present in
addition to the intent required for each of the individual acts involved[.]” (para.
132) Other central issues are “[(1)] the meaning and scope of ‘destruction of a
group’, (2) on the meaning and destruction of a group ‘in part’, and finally (3)
on what constitutes the evidence of the dolus specialis.” (para. 133)
The parties differed in their interpretation of what it means to physically or
biologically destroy a group, with Croatia’s view summarized as following: “the
required intent is not limited to the intent to physically destroy the group, but
includes also the intent to stop it from functioning as a unit.” (para. 134)
Serbia’s theory of destruction is summarized as following: “what counts is the
intent to destroy the group in a physical sense, even if the acts listed in Article
II [of the Genocide Convention of 1948] may sometimes appear to fall short of
causing such physical destruction.” (para. 135)

2. The Scale of Destruction, in Whole or in Part

The Court noted that the Convention was designed only to cover physical or
biological genocide, and not cultural genocide, (para. 136) and that the scale
of destruction of a group is not necessarily tied to the number of victims,
(para. 142), but reaffirmed the “‘substantial part’” requirement, which was
articulated in the Prosecutor v. Krstić Appeal Judgment. (para. 142) It is worth
remembering that in Krstić, the Appeals Chamber considered the thoughts of
Raphael Lemkin, particularly his statement that “‘the destruction in part must
be of a substantial nature so as to affect the entirety.’” (Appeal Judgment,
para. 10) Significantly, the Court decided “[to] take into account the
quantitative element as well as evidence regarding the geographic location
and prominence of the alleged targeted part of the group.” (para. 142; see
also paras 402-437)
3. Destruction as Evidence of Dolus Specialis, and What Constitutes
Destruction?
a. The Actus Reus of Genocide against Croats
Serbia and Croatia agreed that in the absence of direct evidence outlining a
State’s genocidal policy, indirect evidence, or in this case evidence of
destruction, could constitute evidence of dolus specialis. (para. 143) In
considering the merits of the case, the Court considered the many instances
of violence and attacks during the war, such as the siege of Vukovar, noting
that this was an attack that was “directed at the then predominantly Croat
civilian population”. (para. 218, see also para 219, 224) Overall, the Court
found that the actus reus of genocide had occurred under Article II (a), killing
members of the protected group (para. 295); Article II (b), causing serious
bodily or mental harm to members of the group (para. 360); and Article II (d),
measures intended to prevent births within the group (para. 401); but not for
Article II (c), deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part. (para. 394)
b. Attempting to Establish Dolus Specialis
One of the arguments that Croatia submitted was that the presence of
“systematic policy of targeting Croats with a view to their elimination from the
regions concerned” indicated dolus specialis, (para. 408) listing 17 factors, such
as “Serbian expansion”, (para. 408) arguing that “[a]ll these elements indicate
[…] the existence of a pattern of conduct from which the only reasonable
inference is an intent to destroy, in whole or in part, the Croat group.” (para.
409)
The Court considered many attacks, such as at Vukovar, “the purpose [of
which] was also to punish the town’s Croat population, but not to destroy it.”
(para. 412) In relation to the dolus specialis requirement, the Court
distinguished between attacking a group considered to be an enemy with the
intent of punishing it, and attacking a group with the intent of destroying it, in
whole or in part. (para. 430) It is difficult to accept that in each of the situations
of violence described in the judgment, the perpetrators did not at least
possess the knowledge that their acts would amount to destruction of a group,
in whole or in part.
c. “Only Reasonable Inference” – Too High of a Threshold?
The Court essentially dismissed Croatia’s claim on the basis of lack of dolus
specialis. (para. 440) In establishing that dolus specialis did not exist, the Court
considered many instances of violence and forced displacement, in some
cases finding that the actus reusof genocide was present. However, the
Court’s argument that the intent to destroy, in whole or in part, must be “the
only reasonable inference” (para. 146) that may be determined from
considering wartime conduct is perhaps setting too high of a bar for the
mental element of genocide. Wartime generates many behaviors, and the
motivation for genocidal acts, or destructive acts, may have been drawn from
other sources, such as the desire to create “an ethnically homogenous Serb
State”. (para. 426) It is possible that in this instance, the Court did not
adequately consider that the intent to commit genocide existed alongside
other aims in the conduct of hostilities and that genocidal acts occurred.