‘To Destroy the Group Physically’? Part 2: What the ICJ Did Not Say in Bosnia v. Serbia—But Read into it in Croatia v. Serbia

[Zsuzsanna Deen-Racsmány holds a Ph.D. in public international law from Leiden University. She is an independent researcher and has worked, inter alia, at Leiden University and the University of Amsterdam, and been a rapporteur for Oxford International Organizations.] 

Introduction

This post is the second in a series of three in which I advocate for reconsideration of the dominant interpretation of Article II of the Genocide Convention concerning the nature of destruction that must be intended (in short, the scope of the dolus specialis): that the definition of genocide requires intent to destroy the group physically or biologically. This Part 2 analyses pronouncements made by the International Court of Justice (ICJ or the Court) in Bosnia v. Serbia in 2007. I show that Bosnia v. Serbia in fact does not address the scope of the dolus specialis and that Croatia v. Serbia (2015) holdings on that point, that invoked Bosnia v. Serbia, lack substantiation.

Intent and Ethnic Cleansing

The ICJ’s Pronouncements in Bosnia v. Serbia

In paragraph 190 of its Bosnia v. Serbia judgment, the ICJ addressed “Intent and ‘Ethnic Cleansing’”. Its reference in that heading to intent rather than to dolus specialis is significant. The Court has namely clearly distinguished the mens rea or intent included in paragraphs (a)-(e) of Article II of the Genocide Convention (that such conduct must be deliberate, intentional) from the dolus specialis or specific intent stated in the chapeau of Article II (that, in the Court’s words, “[t]he acts listed in Article II must be done with intent to destroy the group as such in whole or in part”). It then clarified that “in the present Judgment [the latter] will usually be referred to as the ‘specific intent (dolus specialis)’” (Bosnia v. Serbia, paras. 186-187). Accordingly, the reference to “intent” in the heading of paragraph 190 does not appear to denote the dolus specialis. Rather, it concerns—or in any event encompasses also—the mental elements incorporated in the actus rei, including “calculated to bring about [the group’s] physical destruction” in Article II(c).

The (two) references to ‘physical’ in paragraph 190 relate to this unique additional mental element of Article II(c). The first one is in the Court’s verbatim reproduction of Article II(c). It thus evidently does not pertain to the dolus specialis. 

The second time that adjective appears here is in the ICJ’s verbatim quotation from Stakić: “[a] clear distinction must be drawn between physical destruction and mere dissolution of a group. The expulsion of a group or part of a group does not in itself suffice for genocide” (para. 519). There (paras. 517-519), the ICTY Trial Chamber was considering ethnic cleansing in the context of the genocidal actus reus within its jurisdiction corresponding to Article II(c) of the Convention, in a section on “The objective element: actus reus”. 

Conversely, an observation at the core of paragraph 190 of Bosnia v. Serbia is not evidently limited to Article II(c):

the intent that characterizes genocide is ‘to destroy, in whole or in part’ a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement.

This pronouncement may pertain also to the dolus specialis. However, it does not contain the word ‘physical’ or require reading it into the text of the chapeau of Article II of the Genocide Convention. Indeed, it does not concern the distinction between physical-biological and social genocide (see Part 1) but that between intent to destroy and intent to displace. Although the group’s displacement may well lead to its destruction, even if the perpetrators were aware of that possibility, their conduct would not qualify as genocide unless they intended that result.

Furthermore, as evidenced by paragraph 344 of Bosnia v. Serbia discussed below, the ICJ was familiar with the ICTY Trial Chamber’s narrow interpretation in Krstić (paras. 571-580) of the scope of the dolus specialis (i.e., to destroy the group physically or biologically). Had the majority meant to follow that approach, it could have cited it with approval here.

In sum, a word-for-word reading of paragraph 190 of Bosnia v. Serbia reveals that it is not addressing the scope of the dolus specialis. References to ‘physical’ relate to Article II(c), and paragraph 190 contains no indications that the ICJ meant to require physical-biological destruction of the group also in terms of the dolus specialis.

The ICJ’s Interpretation in Croatia v. Serbia

Eight years later and in a substantially different composition, the Court summarized paragraph 190 of its Bosnia v. Serbia judgment in Croatia v. Serbia, presenting it as a pronouncement “which must now be regarded as solidly rooted in its jurisprudence”, as follows (para. 510, original italics removed, emphases added):

Genocide presupposes the intent physically to destroy, in whole or in part, a human group as such, and not merely a desire to expel it from a specific territory. Acts of “ethnic cleansing” can indeed be elements in the implementation of a genocidal plan, but on condition that there exists an intention physically to destroy the targeted group and not merely to secure its forced displacement […]. 

In this judgment, unlike in Bosnia v. Serbia, the Court did not emphasize the distinction between intent and dolus specialis and the contents of paragraph 510, in particular the here italicized phrases, undeniably concern the latter. Accordingly, the ICJ clearly—and incorrectly—stretched its Bosnia v. Serbia pronouncements, made in the context of Article II(c), to the ‘analytically distinct’ dolus specialis. In so doing, and by relying in so doing only on Bosnia v. Serbia, it offered no valid underpinning of its position on the scope of the dolus specialis.

The Destruction of Cultural Heritage and Cultural Genocide

The ICJ’s Pronouncements in Bosnia v. Serbia

The ICJ made further relevant statements in paragraph 344 of Bosnia v. Serbia—in a subsection entitled “Destruction of historical, religious and cultural property”—in the broader context of its discussion of Article II(c) of the Genocide Convention, i.e., again, specifically in relation to this actus reus. Having found evidence of the destruction of cultural-historical-religious heritage, it noted that such destruction “cannot be considered to constitute the deliberate infliction of conditions of life calculated to bring about the physical destruction of the group”, evidently applying Article II(c). Acknowledging nonetheless the relevance of such conduct as evidence, the Court further emphasized that “such destruction […] does not fall within the categories of acts of genocide set out in Article II of the Convention” (emphasis added) and proceeded to present materials in support of this conclusion. 

First, it invoked the Sixth Committee’s decision (p. 206), discussed in Part 1 of this series of blog posts, to delete draft Article III on cultural genocide from “the list of punishable acts”. The Court was thus still addressing the actus reus. It then quoted a 1996 statement of the International Law Commission (ILC or Commission), noting that that Commission had interpreted the Convention’s travaux in this sense. That ILC statement (pp. 45-46, para. 12) is often invoked in support of the position that the Genocide Convention requires specific intent to destroy the group physically or biologically. It refers to (physical or biological) destruction of the group, without clarifying whether the Commission meant to address destruction in relation to the actus reus, dolus specialis or both. However, the ILC presented that observation—after its discussion of (specific) intent—in one of the paragraphs of its report where it considered the actus reus, and there are no clear indications that it meant for it to pertain to (specific) intent, as well. Accordingly, the ICJ’s reference to the ILC’s position does not gainsay that the Court’s observations in paragraph 344 of Bosnia v. Serbia addressed cultural destruction only as actus reus.

Next, the ICJ pointed to the ICTY Trial Chamber’s position originally worded as follows: “customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group” (Krstić, para. 580). At first sight, the invocation of Krstić here appears to undermine my reading of the scope of the Court’s pronouncements: the Trial Chamber’s observation unmistakably addressed the dolus specialis. However, the ICJ  paraphrased it as follows: “the definition of acts of genocide is limited to those seeking the physical or biological destruction of a group” (Bosnia v. Serbia, para. 344). The formulation ‘definition of acts of genocide’—the focus on acts being undeniable—which the Court used only here while referring elsewhere in its judgment twice to the “definition of genocide” (ibid., paras. 197 and 199) suggests, as indeed also the context, that the Court was concerned here (only) with the actus reus. Additionally, the ICJ referred to the Krstić position as a view ‘similar’ (i.e., not identical) to that expressed by the ILC, consistently with the fact that the Commission—and the Court itself—were addressing the actus reus. While this reference to Krstić is somewhat of an anomaly, as explained in Part 3, it is—as also the Court’s noteworthy formulations in its context—likely the result of constructive ambiguity.

In any event, my interpretation of paragraph 344 so far also accords with the section’s central holding, presented next, “that the destruction of historical, religious and cultural heritage cannot be considered to be a genocidal act within the meaning of Article II” (Bosnia v. Serbia, para. 344, emphasis added). 

Finally, the Court’s ‘endorsement’ of another statement from Krstić which contains the phrase “intent to physically destroy the group”—quoted verbatim immediately after this holding—was clearly meant nonetheless to acknowledge the relevance of attacks on tangible manifestations of culture, as evidence of intent, rather than to confirm the Krstić interpretation of the scope of the dolus specialis. Accordingly, the ICJ did not internalize or endorse the Krstić position on that latter issue here either, although it also did not reject its accuracy. Indeed, it did not need to do either. The question it addressed in paragraph 344 was limited to whether the destruction of cultural-religious-historical heritage could be considered actus reus, in the particular context of Article II(c) of the Convention, not whether the dolus specialis had to aim at the group’s physical-biological destruction. 

This reading of paragraph 344 is also consistent with the brevity of the Court’s treatment of this issue and its limited substantiation; even Bosnia (p. 29, para. 50) accepted the position expressed in the paragraph, but only as far as it addressed the actus reus. Conversely, the idea that the dolus specialis requires intent to aim at the group’s physical destruction is more controversial and was explicitly contested by Bosnia (p. 35, para. 22). The short reference to Krstić hardly rises to the level of attention which would have been given to address such a contentious question, had the ICJ intended to present its position on it.

In sum, contrary to the sense in which it is often invoked, paragraph 344 of Bosnia v. Serbia does not contain statements that concern the dolus specialis. Rather, when read closely, it appears limited to the actus reus.

The ICJ’s Interpretation in Croatia v. Serbia

The Court’s invocation in Croatia v. Serbia (para. 136) of these Bosnia v. Serbia pronouncements suggests that it has misread these too as pertaining to specific intent. Addressing the meaning and scope of a group’s physical or biological destruction in a section devoted to mens rea, it first noted the Sixth Committee’s ‘rejection of cultural genocide’ (on this concept and why the Sixth Committee’s decision does not affect the interpretation of the dolus specialis, see Part 1). It then added that “[i]t was accordingly decided to limit the scope of the Convention to the physical destruction of the group” (Croatia v. Serbia, para. 136), accompanied by a reference to the above-discussed ILC statement and Bosnia v. Serbia (para. 344). As explained, those materials addressed the actus reus. So far, Croatia v. Serbia may thus be read as dealing with conduct.

However, the Court then posited (Croatia v. Serbia, para. 136, emphasis added) that 

[i]t follows that “causing serious … mental harm to members of the group” within the meaning of Article II (b), even if it does not directly concern the physical or biological destruction of members of the group, must be regarded as encompassing only acts carried out with the intent of achieving the physical or biological destruction of the group, in whole or in part.

In other words, the ICJ drew conclusions regarding the scope of the dolus specialis based on its discussion of the actus reus, despite having declared those two elements of genocide “analytically distinct” just a few paragraphs earlier (Croatia v. Serbia, para. 130). This change of focus without additional substantiation is particularly noteworthy considering the parties’ categorical disagreement on the scope of the dolus specialis in this case too (ibid., paras. 134-135). The Court’s support for Serbia’s position on that issue called for more detailed motivation, including substantiation.

Conclusion 

Addressing the scope of the dolus specialis in Croatia v. Serbia, the ICJ gave the impression that it was simply confirming its 2007 holdings presented in Bosnia v. Serbia; an uncontroversial judicial exercise. However, a closer look at the relevant passages of Bosnia v. Serbia cited in Croatia v. Serbia reveals that the pronouncements of that 2007 judgment have a different focus (the additional intent required in Article II(c) or conduct, rather than the dolus specialis) and relevant positions conveyed in Bosnia v. Serbia are not readily transposable to the dolus specialis. It is therefore submitted that it would be a missed opportunity for the ICJ to uncritically reproduce its Croatia v. Serbia position on the scope of the dolus specialis—one on which according to this study it has not yet expressed a motivated position—in The Gambia v. Myanmar.