‘To Destroy the Group Physically’? Part 3: Bosnia v. Serbia Beyond Paragraphs 190 and 344, External Context, and Implications

[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 concludes a series of three. Following an introduction that described the parse mention in the submissions in The Gambia v. Myanmar of the nature of destruction required in the context of genocidal dolus specialis (in short, the scope of the dolus specialis), Part 1 questioned the now dominant view that the Genocide Convention’s definition of genocide requires specific intent to destroy the group physically or biologically. In turn, in Part 2, I showed that—contrary to their predominant reading—in paragraphs 190 and 344 of its 2007 Bosnia v. Serbia judgment, the International Court of Justice (ICJ or the Court) did not (explicitly) confirm that narrow interpretation. 

This third part argues that relevant Bosnia v. Serbia terminology, the Court’s evaluation of evidence of dolus specialis in that judgment, and the early 2007 international jurisprudential landscape are consistent with this conclusion. Yet, the ICJ relied chiefly on paragraphs 190 and 344 of Bosnia v. Serbia (see Part 2) for its 2015 Croatia v. Serbia holding that genocide requires specific intent to destroy the group physically or biologically (paras. 136 and 510). As those 2015 pronouncements thus lack fitting substantiation, I advocate here for a targeted (re)assessment by the Court of the scope of the dolus specialis. Finally, I explain that, in 2015, the ICJ did not need to follow the by then dominant interpretation introduced in international jurisprudence by the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Krstić (paras. 571-580) in 2001, and it does not need to do so now. 

Bosnia v. Serbia Beyond Paragraphs 190 and 344

In other parts of its Bosnia v. Serbia judgment, the ICJ referred to physical destruction only when reproducing Article II(c) of the Genocide Convention or quoting or paraphrasing statements of the (ICTY) that addressed (conduct in terms of) that provision. In turn, in relation to the dolus specialis stated in the chapeau of Article II, it consistently did not write ‘physical’ or ‘physically’. Tellingly, even in the paragraph of the judgment devoted to the discussion of the dolus specialis (para. 187)—which, it emphasized, “is defined very precisely”—the Court paraphrased the Convention’s language as requiring that the actus rei “must be done with intent to destroy the group as such in whole or in part”, without an adverbial modifier. This clear pattern confirms the conclusion reached in Part 2 that, in that 2007 judgment, the Court did not yet categorically require specific intent to destroy the group physically (or biologically).

The reader may also expect to find indications of the Bosnia v. Serbia Court’s position on the scope of the dolus specialis in the context of its assessment of evidence of specific intent. However, the Court did not clarify it there either what interpretation of the scope of the dolus specialis it was following. 

Nevertheless, references in those parts of the judgment to the ICTY’s findings of specific intent (e.g., Bosnia v. Serbia, paras. 277, 354, 370-376) appear relevant. They could be read to indicate that—consistently with the invoked judgments—the ICJ considered that a specific kind of destruction (e.g., physical) had been intended. However, at least two factors advocate against attributing too much significance to such references in this context. First, the ICTY’s determinations were not the sole evidence that the ICJ relied on. The Court also conducted its own analysis, based on the parties’ submissions (ibid., paras. 277, 319, 354, and 376), albeit without explaining its conclusions in detail. 

Secondly, when assessing the evidence related to specific intent, even the Krstić Trial Chamber apparently relaxed its conservative interpretation of the law regarding the scope of the dolus specialis: in the context of Srebrenica—the only context where it found evidence of dolus specialis—it seemingly widened the meaning of ‘physical destruction’ (Krstić, paras. 594-599) (for this reading, see, e.g., Judge ad hoc Kreća, paras. 140 and 150; Van den Herik, p. 54; and Greenawalt, pp. 986-988). As noted by Zahar, the Trial Chamber “pretend[ed] to be talking about biological destruction but ke[pt] sliding back into the area of cultural destruction” (p. 636). 

Consequently, although at the time of the presentation of the ICJ’s Bosnia v. Serbia judgment in 2007, the ICTY’s jurisprudence was divided on the scope of the dolus specialis, the different interpretations of the law adopted by various trial chambers did not produce equally divergent approaches when applied to the facts. Most importantly, while Blagojević and Jokić (para. 666) endorsed the Krstić interpretation of the scope of the dolus specialis, it interpreted ‘physical destruction’ broadly, consistently with the Krstić approach to evaluating evidence of genocidal intent. As a result, the ICJ noted that Blagojević and Jokić was consistent with Krstić regarding the date on which the dolus specialis was established (Bosnia v. Serbia, paras. 294-295) and saw no reason to deviate from the determinations in those judgments on this point. In turn, the ICTY’s in this respect most liberal judgment (Krajišnik, para. 854)—which categorically rejected the position that specific intent had to aim at the group’s physical-biological destruction—did not result in a conviction due to the absence of evidence of dolus specialis, i.e., even that judgment’s threshold had not been met. Hence, the Court did not cite it in this context. Consequently, similarly to the Bosnia v. Serbia judgment’s terminology, the ICJ’s treatment of ICTY jurisprudence in the context of its assessment of evidence of dolus specialis does not demonstrate preference on its part for a narrow interpretation of the scope of the dolus specialis. 

External Context: Related ICTY Jurisprudence

Admittedly, the ICJ may not have considered the latter issue in any great depth. However, if it did, judges may have been disinclined to adopt a categorical position: although the Krstić line has since become the dominant approach, at the time of the presentation of Bosnia v. Serbia, the international jurisprudential landscape appeared turbulently changing towards rejecting that reading. Following (then ICTY) Judge Shahabuddeen’s powerful dissent in Krstić (Appeal) (pp. 103-106, paras. 45-54) on this point in 2004, Blagojević and Jokić (2005) (para. 666) stretched the Krstić interpretation. Considering that “[a] group is comprised of its individuals, but also of its history, traditions, the relationship between its members, the relationship with other groups, the relationship with the land”, it perceived ‘physical or biological destruction’ broadly: 

the physical or biological destruction of the group is the likely outcome of a forcible transfer of the population when this transfer is conducted in such a way that the group can no longer reconstitute itself—particularly when it involves the separation of its members. In such cases […] the forcible transfer of individuals could lead to the material destruction of the group, since the group ceases to exist as a group, or at least as the group it was. 

Since, with this consequential clarification, Blagojević and Jokić nonetheless endorsed the Krstić interpretation of the scope of the dolus specialis (Blagojević and Jokić, para. 657), the relevant positions adopted in these two judgments are reconcilable. However, in Krajišnik (para. 854) (2006), the ICTY’s Trial Chamber I presented an evidently conflicting reading five months before the ICJ’s Bosnia v. Serbia judgment. It explained that 

“[d]estruction”, as a component of the mens rea of genocide, is not limited to physical or biological destruction of the group’s members, since the group (or a part of it) can be destroyed in other ways, such as by transferring children out of the group (or the part) or by severing the bonds among its members. 

Footnote 1701 attached to this sentence further clarified that “the Genocide Convention’s ‘intent to destroy’ the group cannot sensibly be regarded as reducible to an intent to destroy the group physically or biologically, as has occasionally been said.” 

In 2007, the ICTY’s jurisprudence on the scope of the dolus specialis was thus trifurcated. To be sure, this fact did not have formal implications for the ICJ. Admittedly, the ICTY and ICJ were to interpret the (same) definition of genocide—albeit, as argued, following slightly different rules of interpretation—and apply it to essentially the same facts. Moreover, in doing so, they were to take each other’s decisions into consideration. Nevertheless, there was no formal relationship or hierarchy between them. Accordingly, an ICJ pronouncement on the question would strictly speaking not have had (inconvenient) official consequences for the ICTY. Yet, the diversification of the ICTY’s jurisprudence on the nature of destruction involved in the dolus specialis shortly before its own judgment may have added considerable sensitivity to the Court’s task, making at least a few ICJ judges reluctant to address the matter at that time. 

Moreover, it is uncertain whether one approach in particular, among the ICTY’s then three competing approaches, enjoyed the support of the majority of the 2007 ICJ bench. Paragraphs 190 and 344 may thus, in the alternative, evidence constructive ambiguity—described by McIntyre in the context of another ICJ decision as “adopt[ing] a phrasing which can be interpreted more than one way in order to get the decision across the line”—i.e., a sign of disagreement within the majority.

Both possibilities (deliberate omission or constructive ambiguity) are consistent with the fact that the Bosnia v. Serbia judgment (i.e., the majority) did not mention Blagojević and Jokić—described by Judge ad hoc Mahiou in his dissenting opinion in Bosnia v. Serbia in relevant context as having “formulat[ed] the most important developments since the Krstić judgment regarding certain elements of the crime of genocide” (paras. 88-89)—or the even more groundbreaking Krajišnik in paragraphs 190 or 344 in Bosnia v. Serbia, whereas it invoked those in relation to other matters. If, contrariwise, the Court indeed meant to endorse the Krstić line on the scope of the dolus specialis in 2007, would it not have acknowledged the existence of competing ICTY pronouncements and explained why it found Krstić more persuasive than Blagojević and Jokić and Krajišnik? 

Did the ICJ Need to Follow Krstić in Croatia v. Serbia? And Does it Need to Follow that Position Now?

By 2015, international criminal law jurisprudence—inter alia, of the ICTY and the International Criminal Tribunal for Rwanda—had clearly chosen for the Krstić line, albeit without further analysis. However, the ICJ did not need to follow that approach in Croatia v. Serbia, and it does not need to do so now. 

Although it must take those into consideration (Art. 38(d), the ICJ is not bound by pronouncements of other judicial organs including the ICTY, or even by its own previous decisions (Art. 59). As argued, the value of the Krstić judgment for the ICJ in this context is further reduced by the fact that the ICTY was dealing with individual criminal responsibility. Accordingly, it approached the definition of genocide through the lens of the legal framework applied when interpreting penal statutes, which attributes a more significant role to the travaux than the rules of treaty interpretation. As the narrow interpretation hinges on claims based on the travaux, this difference is significant. Moreover, as explained in Part 1, the substantiation of the Krstić pronouncements appears in any case inadequate. Accordingly, the ICJ would have been warranted to conduct its own detailed analysis of the scope of the dolus specialis in 2015.

However, in Croatia v. Serbia, the underpinning of the Court’s position was even more limited than that of Krstić, in substance and form. First, the judgment referred only to the Genocide Convention’s preparatory work, a supplementary means of treaty interpretation, and it rested further primarily on the Bosnia v. Serbia holdings on this point. In my view, none of these sources contain a (categorical) position on the scope of the dolus specialis. However, even if—as commonly construed—Bosnia v. Serbia indeed sought to confirm Krstić, following it (also) in conflating destruction in terms of actus reus and mens rea (p. 230), the conclusion would be the same: the scope of the dolus specialis has yet to receive targeted consideration and substantiation by competent courts. 

In sum, the existing authorities for interpreting the Genocide Convention as requiring specific intent to destroy the group physically or biologically fail to convince. For these reasons, and in order that it be done sooner rather than (any number of genocide judgments) later, it is submitted that the ICJ should examine the scope of the dolus specialis in The Gambia v. Myanmar or at its earliest following opportunity, to do so in full accordance with the rules of treaty interpretation and, in doing so, “be as transparent as possible” (para. 63) and as detailed as the consequential and disputed nature of the question calls for.