‘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. You can contact her via email.] 

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 specific intent to destroy the group physically or biologically. This Part 2 analyses paragraphs 190 and 344 of the 2007 Bosnia v. Serbia judgment of the International Court of Justice (ICJ or the Court) commonly cited as authority for that reading. I argue that they in fact do not confirm that (narrow) interpretation of the dolus specialis and that Croatia v. Serbia (2015) holdings on that point—that relied most prominently on Bosnia v. Serbia—lack fitting 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’”. As evidenced by the heading and contents of paragraph 190, and the fact that a separate paragraph was already devoted to specific intent (para. 187), the Court’s purpose here was clearly not to settle the by 2007 heightened (see Part 3) legal controversy regarding the scope of the dolus specialis. Rather, it explored the at the time not yet well-understood term central to the proceedings, ethnic cleansing, and the relationship between that concept and genocide. It did so both in terms of conduct—in particular Article II(c) of the Convention, to which actus reus ethnic cleansing shows the closest resemblance—and intent. 

After explaining that ethnic cleansing can constitute genocide only if covered by one of the actus rei stated in Article II(a)-(e), the Court turned to its relation to (specific) intent: 

Neither the intent, as a matter of policy, to render an area “ethnically homogeneous”, nor the operations that may be carried out to implement such policy, can as such be designated as genocide: 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.

Significantly, this sentence does not require specific intent to destroy the group physically, and the Court similarly did not use the words ‘physical’ or ‘physically’ in related statements of this paragraph where it also described the dolus specialis, i.e., the observations that ethnic cleansing may constitute genocide if relevant conduct falls under a listed actus reus, for instance Article II(c), “provided that such action is carried out with the necessary specific intent (dolus specialis), that is to say with a view to the destruction of the group, as distinct from its removal from the region” and “whether […] ‘ethnic cleansing’ amounts to genocide depends on the presence or absence of acts listed in Article II of the Genocide Convention, and of the intent to destroy the group as such”. Moreover, these pronouncements stress the distinction between intent to destroy and intent to displace. As a group’s displacement is not equal to its social (i.e., non-physical) destruction, these statements do not touch upon the question whether the definition of genocide requires intent to destroy the group physically. 

In turn, the only (two) references to ‘physical’ in paragraph 190 concern the mental element unique to Article II(c): “calculated to bring about its physical destruction […]” (see Part 1). The first one is in the Court’s verbatim reproduction of Article II(c); the second almost immediately thereafter, in a verbatim quotation from Stakić that “[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). In the quoted passage, 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”. Accordingly, both uses of the adjective evidently pertain to Article II(c), not the dolus specialis.

Thus, a crystal-clear pattern emerges: the references in paragraph 190 to ‘physical’ relate to Article II(c), while the statements addressing the dolus specialis contain no indications of a corresponding limitation. This is not to suggest that the Court necessarily intended to adopt a broad interpretation of the scope of the dolus specialis here, covering also intent to destroy the group as a cohesive social unit. However, the paragraph also clearly does not demonstrate preference for the narrow interpretation. In view of its contentious nature, any categorical stance on the matter would indeed likely have merited the ICJ’s targeted consideration and motivation, most likely in paragraph 187. Instead, addressing ethnic cleansing here, the Court kept to restating the explicit terms of the Convention both in relation to Article II(c) and the chapeau, without offering its own position on whether the latter requires intent to destroy a group physically.

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 […]. 

These statements undeniably require physical destruction in the context of specific intent. Accordingly, the ICJ transposed, without more, a limitation which it stated in paragraph 190 Bosnia v. Serbia rightly only in the context of Article II(c) to the in relevant respect differently worded dolus specialis. 

The Destruction of Cultural Heritage and Cultural Genocide

The ICJ’s Pronouncements in Bosnia v. Serbia

The ICJ made further seemingly 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, 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 significance of such conduct, 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 noted that the International Law Commission (ILC or Commission) “subsequently confirmed this approach”, quoting the ILC’s observation that “[a]s clearly shown by the preparatory work of the Convention […], the destruction in question is the material destruction of a group either by physical or by biological means, not the destruction of the national, linguistic, religious, cultural or other identity of the particular group”” (pp. 45-46, para. 12). As explained in Part 1, while that ILC statement is often invoked in support of the position that the Convention requires specific intent to destroy the group physically or biologically, it was in fact made in relation to the actus reus. Accordingly, the ICJ’s reproduction here of this sentence does not gainsay that the Court’s statements in this paragraph concerned cultural destruction only as actus reus.

Next, the ICJ pointed to the ICTY Trial Chamber’s position, which was 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, emphasis added). Pertinently, the Trial Chamber’s finding, although based on a conflation of mens rea and dolus specialis, unmistakably concerned the latter. However, presenting it here as a view ‘similar’ to that of the ILC, 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 accent on acts being undeniable, in particular as the Court used this phrase only here while referring elsewhere in the judgment twice to the “definition of genocide” (paras. 197 and 199)—suggests, as indeed also the context, that the Court was dealing here still with the nature of the actus reus. 

The interpretation of paragraph 344 as not addressing the dolus specialis 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—quoted verbatim immediately hereafter, in the last sentence of paragraph 344—that “where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group” undoubtedly served to acknowledge the relevance of attacks on tangible manifestations of culture, as evidence of intent, rather than to ‘endorse’ the Krstić interpretation of the scope of the dolus specialis. Accordingly, the ICJ did not internalize or express categorical support for that (conservative) approach here, although it also did not reject its accuracy. Indeed, it did not need to do either. The question it explored briefly in paragraph 344—in the context of Article II(c), which explicitly requires mens rea to destroy the group physically—was whether the destruction of cultural-religious-historical heritage could constitute genocidal actus reus; not the meaning of the dolus specialis, which it considered in paragraph 187. 

Nonetheless, the (first) reference in this paragraph to Krstić and to the ILC statement are often seen as evidence that the Court too arrived at a narrow interpretation of the dolus specialis by conflating mens rea with actus reus. However, the ICJ’s choice of words here—which is so remarkable (see also Mundorff, p. 230) that it can hardly be the result of a lack of attention—suggests a more nuanced approach: that the Court confined its holdings to the actus reus. Alternatively, as explained in Part 3, the paragraph—in particular its treatment of the conservative Krstić stance—may reflect constructive ambiguity in relation to the scope of the dolus specialis. In any case, it is no suitable authority for the position that specific intent must aim at the group’s physical (or biological) destruction; an issue it did not or in any event not unambiguously and adequately address.

The ICJ’s Interpretation in Croatia v. Serbia

In Croatia v. Serbia (para. 136), discussing the meaning and scope of a group’s physical or biological destruction in a section devoted to mens rea, the Court pointed to the Sixth Committee’s ‘rejection of cultural genocide’, the above-discussed ILC statement, and Bosnia v. Serbia (para. 344), and noted 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). 

As explained in Part 1 and above, those materials apparently have not dealt with the scope of the dolus specialis. Nevertheless, the Court then posited (para. 136, emphases 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, despite having clearly distinguished between mens rea and actus reus (para. 130), the ICJ must have read at least Bosnia v. Serbia and the ILC pronouncement—i.e., the sources cited just before this statement—as having addressed (also) the scope of the dolus specialis. Otherwise, it would undoubtedly have offered tailored motivation of its support for Serbia’s position amidst the parties’ categorical disagreement on that issue (paras. 134-135). 

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 detailed analysis of the relevant 2007 passages cited in Croatia v. Serbia reveals that those Bosnia v. Serbia have not categorically stated that the destruction involved in specific intent must be physical or biological. It is therefore submitted that it would be a missed opportunity for the ICJ to uncritically reproduce its Croatia v. Serbia holdings on the scope of the dolus specialis—whereby it sought to rely, without more, on Bosnia v. Serbia—in The Gambia v. Myanmar.

Editor’s note: An incorrect version of this post was published on 28 September 2026. It was corrected on 29 September 2026.