Rethinking International Law After Gaza Symposium: Genocide at the ICJ – The Bosnia Case and Implications for Gaza

[Jinan Bastaki is an Associate Professor of Legal Studies at New York University, Abu Dhabi.]

[Harun Halilović is an Assistant Professor at IUS Law School. He holds a BA in Law from the University of Sarajevo, and an LL.M. from Queen Mary University of London. He obtained PhD in Law from the University of Tuzla Faculty of Law. He is an author of several research articles and books. He has experience working with international organizations and in legal practice as an attorney at law.]

Genocide is a notoriously difficult crime to prove due to the high standard of proof required to satisfy the dolus specialis requirement of genocide — that genocide must be the ‘only reasonable inference’ from the prohibited actions. For example, despite the widespread crimes targeting Bosnian Muslims in Bosnia and Herzegovina between 1992-1995, only the killings in Srebrenica were determined to reach the threshold of genocide by the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Court of Justice (ICJ). 

The standards of proof for finding individual criminal responsibility for genocide were developed by the ICTY and the International Criminal Tribunal for Rwanda (ICTR), as well as some other novel legal standards. Although some of the decisions of the ICTY were criticized, a few of the standards developed — which may have helped to find state responsibility for genocide — were not applied by the ICJ in the 2007 case of Bosnia and Herzegovina v. Serbia, finding ultimately that Serbia was not responsible for the Srebrenica genocide, but was responsible for its failure to prevent genocide. 

More recently, several states in The Gambia v. Myanmar case have urged the ICJ to rethink its approach in order to ensure that making a finding of genocide is not made impossible, despite the preponderance of evidence. This post will examine and critique the ICJ’s application of certain standards devised by the ICTY and ICTR and its reluctance to apply others, ultimately making it even more difficult to find state responsibility for genocide. We also consider its implications for South Africa’s case against Israel. 

Genocide Determination in International Law

Article 2 of the Genocide Convention lists the different acts through which the crime of genocide can be committed (the actus reus of genocide). What differentiates genocide from other crimes under international law is the mens rea requirement, which is defined as the “… the specific intent to destroy, in whole or in part, the protected group.” The ICJ clarified that this specific intent is the “essential characteristic of genocide, which distinguishes it from other serious crimes,” (Croatia v Serbia, 2015, para. 132, emphasis added). 

The ICTY and ICTR developed extensive jurisprudence in processing genocide and several cases where individual criminal liability for genocide was established, such as the ICTY cases of Karadžić, Mladić, Tolimir, and Popovic et al, and the ICTR cases of Seromba and Aakayesu. The ICTY cases which sustained convictions for genocide were exclusively related to the genocide committed in Srebrenica. Besides the work of the ICTY and ICTR, at the international level, the Extraordinary Chambers in the Courts of Cambodia (ECCC), set up as a quasi-international UN-backed judicial mechanism tasked with the processing of crimes of the Khmer Rouge regime in Cambodia, also found a former Khmer Rouge leader guilty of genocide over Cambodia’s Muslim Cham minority and the Vietnamese minority in the 2018 Nuon Chea case.

Yet when it comes to responsibility of states for the acts of genocide, existing case law is scarce, though growing. Only a few ICJ cases relate to state responsibility for genocide, such as the case of mutual accusation between Serbia and Croatia, both eventually dismissed. Further ongoing cases are The Gambia v. Myanmar, Ukraine v. Russia, and of course, South Africa v. Israel. However, currently, the only relevant case that was concluded establishing the existence of genocide and the existence of some form of state responsibility is the 2007 Bosnia v. Serbia case.

State Responsibility v. Individual Criminal Responsibility

The ICTY and ICTR, on the one hand, and the ICJ, on the other, are not functionally or conceptually connected. The ICJ has affirmed this, stating that “State responsibility and individual criminal responsibility are governed by different legal régimes and pursue different aims,” (Croatia v. Serbia, para. 129). The competence of the ICTY and ICTR, as ad-hoc international tribunals, was primarily related to the prosecution of individuals and the adjudication of individual criminal liability, and as such is different from the competence of the ICJ to decide over the responsibility of the states, although certain standards relate to issues beyond mere individual responsibility. The Court stated that it would “nonetheless take account, where appropriate, of the decisions of international criminal courts or tribunals, in particular those of the ICTY” (Croatia v. Serbia, para. 129). Adopting standards of proof needed for individual criminal responsibility in cases of state liability are questionable at best, particularly since the criteria for deciding what is appropriate was not expanded upon. 

When it came to state responsibility for genocide, the ICJ had to decide for the first time what constituted an appropriate standard of proof in the Bosnia v. Serbia case. Bosnia had argued that for finding state responsibility, “the standard is the balance of evidence or the balance of probabilities, inasmuch as what is alleged is a breach of treaty obligations” (para. 208).  Judge Cançado Trindade, in his dissenting opinion in the later Croatia v. Serbia, differentiated between the burden of proof required for state responsibility and for individual responsibility. Using ECtHR and IACtHR cases, as they deal with the responsibility of states for violations of human rights, he stated “that a stringent or too high a standard of proof would be unreasonable… The ECHR, like the IACtHR, admitted shifting the burden of proof (onto the respondent States) whenever necessary, as well as resorting to inferences (from circumstantial evidence) and factual presumptions, so as to secure procedural fairness, in the light of the principle of equality of arms (égalité des armes),”  (para. 120).

In Bosnia v. Serbia, the ICJ ended up adopting, seemingly haphazardly, even higher standards of proof for finding state responsibility. The ICJ decided not to adopt the ICTY’s more reasonable standard of control needed to attribute the acts of non-state agents to the respondent state (‘overall control’, expanded upon in the Tadic case), and instead relied upon the more strenuous standard of  ‘effective control’ established in the Nicaragua case (whose application is potentially relevant for The Gambia v. Myanmar case). As a result, the respondent state, Serbia, was not found responsible for the commission of genocide, but ‘merely’ for failure to prevent it.

The ICJ’S Bosnia v. Serbia case: Making the Near-Impossible, Impossible

In Bosnia v. Serbia, the Court extensively cited the jurisprudence of the ICTY (paras. 188, 195, 219, etc). This meant that the Court only focused on what was determined a genocide by the ICTY – namely the killings in Srebrenica, where more than 8,000 Bosniak men and boys were executed (although numerous female victims were also found). This is despite the fact that many crimes targeting Bosniaks specifically occurred before Srebrenica including, for example, the Višegrad killings where up to 3,000 Muslims were murdered including some burned alive, and where no Muslim remained when the war ended in 1995. Interestingly, national courts in Germany in the late 1990s, acting on universal jurisdiction, tried members of the Bosnian Serb Army who emigrated to Germany. Domestic courts established the existence of genocide in several towns in Bosnia and Herzegovina, including in the cities of Doboj (Jorgić case), Zvornik (Sokolović case), and Kotor Varoš (Kušljić case).

Yet, in Bosnia v. Serbia, the ICJ required that the pattern of acts should “have to be such that it could only point to the existence of such intent” (para. 373, emphasis added) i.e. the intent to destroy in whole or in part the targeted group. Hence, the ICJ saw that while crimes were committed in other cities of Bosnia and Herzegovina, such as in the city of Prijedor, and found that what took place satisfied the requirements of the actus reus of genocide, the specific genocidal intent was not sufficiently proven beyond reasonable doubt (paras. 276-277, 319). Judge al-Khasawneh, in his dissenting opinion, severely criticized the court’s conclusions for a number of reasons. Regarding intent and what amounts to a reasonable inference, he stated that the Court,

 … ignores the facts and substitutes its own assessment of how the Bosnian Serbs could have hypothetically best achieved their macabre Strategic Goals [of a Greater Serbia]… Coupled with population transfers, what other inference is there to draw from the overwhelming evidence of massive killings systematically targeting the Bosnian Muslims than genocidal intent? If the only objective was to move the Muslim population, and the Court is willing to assume that the Bosnian Serbs did only that which is strictly necessary in order to achieve this objective, then what to make of the mass murder? (Vice-President al-Khasawneh, Dissenting Opinion, para. 41)

Proving genocidal intent is a difficult and, in some cases, an impossible task, especially if we consider the habitual non-existence of written evidence. Still, the practice of the ICTR and ICTY established that the specific genocidal criminal intent can be proven through the existence of a specific pattern of behavior (the Seromba and Aakayesu cases at the ICTR), or through the existence of a certain plan or policy (as in ICTY’s Krstic case related to Srebrenica genocide). In its conclusion, when the ICJ affirmed that what occurred in Srebrenica was a genocide since it aimed to destroy the Bosnian Muslim population in that area by destroying the part of the group vital for its existence, it did not rely on the specific pattern of behavior or the existence of a certain plan, which was the ICTY and ICTR’s approach. Rather, it relied on evidence such as direct orders given by the political and military leadership of the Republic of Srpska, like the infamous “Directive 7”, issued by the then president Radovan Karadžić (para. 371). The ICJ concluded that Bosnia’s “contention that the very pattern of the atrocities committed over many communities, over a lengthy period, focused on Bosnian Muslims and also Croats, demonstrates the necessary intent, the Court cannot agree with such a broad proposition” (para. 373, emphasis added).

Possible Implications for South Africa v. Israel

Various reports and statements from experts have found that genocide is underway in Gaza. While that is, of course, different from a criminal trial, it can constitute evidence that the ICJ may consult. Yet, could Israel’s stated aim of “destroying Hamas” be used to preclude findings of genocide, since the court may interpret that as being a reasonable inference of the mass killing? In Judge Trindade’s aforementioned  dissenting opinion in Croatia v. Serbia, he specifically pointed out that:

… perpetrators of genocide will almost always allege that they were in an armed conflict, and their actions were taken ‘pursuant to an ongoing military conflict’; yet, ‘genocide may be a means for achieving military objectives just as readily as military conflict may be a means for instigating a genocidal plan.’ (para. 144)

As Francesca Albanese, UN Special Rapporteur on Human Rights in the OPT, has shown in her report, Anatomy of a Genocide, “Israel has strategically invoked the IHL framework as ‘humanitarian camouflage’ to legitimize its genocidal violence in Gaza,” (para. 6). Indeed, the now multiple evacuation orders – which in IHL are meant to be provisional and “taken in the interests of the protected persons themselves” — have contributed to the displacement of 90% of Palestinians in the Gaza Strip, the death of countless civilians, and may constitute part of the actus reus of genocide if they inflict conditions of life calculated to bring about Palestinians’ physical destruction. 

The previous position taken by the ICJ can be seen as alarming and consequential not only to the case of South Africa v. Israel, but other ongoing and future cases related to genocide; it would behoove the ICJ to rethink its approach. Indeed, in The Gambia v Myanmar, a number of states expressed that it was

… crucial for the Court to adopt a balanced approach that recognizes the special gravity of the crime of genocide, without rendering the threshold for inferring genocidal intent so difficult to meet so as to make findings of genocide near-impossible. (Joint Declaration of Intervention by Canada, Denmark, France et al, The Gambia v. Myanmar, para. 51). 

The Declarants then urged the Court to apply a “reasonableness criterion” (para. 52), to “assess the evidence available to it comprehensively and holistically” (para. 54), to take into account “the overall factual picture” and not simply “each individual incident or alleged underlying act of genocide” taken in isolation (para. 56), and scale (para. 59). The Court would not even have to develop new standards, even though that may be desirable, because these aspects are all considered in the ICTY and ICTR cases. In fact, in the above cited para. 373 of the Judgment in Bosnia v Serbia, the ICJ did not completely close the door on the possibility of the use of a “pattern of behavior” to prove genocidal intent. The commission of most crimes under international law, especially genocide, can, and usually does, involve massive campaigns of cover-up and denial, therefore, to expect the existence of, for example, an official written order to commit acts of genocide, stating the specific intent, is unrealistic. Indeed,  Judge Trindade  warned that,

The attempts to impose a high threshold for proof of genocide… are most regrettable, ending up in reducing genocide to an almost impossible crime to determine, and the Genocide Convention to an almost dead letter. This can only bring impunity to the perpetrators of genocide. (Judge Cançado Trindade, Dissenting Opinion, Croatia v. Serbia, para. 143)

Worryingly, in Judge Nolte’s separate opinion in the ICJ’s July Advisory Opinion, he expressed that, in terms of the mens rea required for apartheid, there could be other plausible justifications for Israel’s disproportionate and/or illegal actions, such as security considerations and the desire to assert sovereignty over the West Bank, therefore likely failing to meet the specific intent of ‘domination’ (Judge Nolte, Separate Opinion, 19 July 2024, para. 13 – though several other judges, including Judges Salam, Tladi, and Brant, disagreed). The difference in the South Africa v. Israel case is that there is ample evidence of public statements signifying genocidal intent, and acts that are directly committed by state organs and their representatives.

The case law of ICTY and ICTR contributed in many ways to the development of the body of international law, and as such is a noteworthy source that gives the ICJ opportunity to rethink its approach. The Court would do well to follow the jurisprudence of the ICTY in the Jelisić (Appeals, 2007, para. 49) and Stakić (Appeals, 2006, para. 226) cases that differentiate between motive and intent, since one may have a personal or other motive, but this does not preclude having genocidal intent. The court has plenty to work with in order to rethink its approach so that the standard for state responsibility is not higher than the standard for individual criminal responsibility.