When Ethnic Cleansing is not Genocide: A Critical Appraisal of the ICJ's Ruling in Croatia v. Serbia in relation to Deportation and Population Transfer

HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice

Mini-Symposium on the ICJ Judgment in Croatia v. Serbia

*. Dr Martin Steinfeld, Associate Lecturer, The Dickson Poon School of Law, King's College London [

[email protected]

].

Ethnic cleansing occupies a distinct void in international law, particularly as there is no overt provision relating to it in the Convention on the Prevention and Punishment of the Crime of Genocide (the Convention). Article II of the Convention states:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a). Killing members of the group;

(b). Causing serious bodily or mental harm to members of the group;

(c). Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d). Imposing measures intended to prevent births within the group;

(e). Forcibly transferring children of the group to another group.

In the International Court of Justice's (ICJ or Court) most recent judgment in Croatia v. Serbia on the application of the Convention, the Court was given a second opportunity, after the original Genocide judgment in 2007, to hold Serbia to account for atrocities that it committed during the Yugoslav civil war in the 1990s and thereby potentially fill such a legal void.¹The judgment enabled the Court to develop its reasoning on the practical application of the Convention in light of the International Criminal Tribunal for the former Yugoslavia's (ICTY) judgments since 2007; especially the Martic and Stanisic and Simatovic judgments.²To reiterate what has already been elaborated upon by others in this symposium, the Court held (by fifteen votes to two) that Serbia could not be held to have breached the Convention because, whilst a number of acts that it committed constituted the actus reus of genocide, the dolus specialis of genocide was lacking in all respects.³The case, then, differs considerably from the Genocide judgment of 2007, in which the Court was prepared to hold that Serbia had violated Article II(a) and (b) of the Convention in relation to the massacre that took place at Srebrenica in July 1995.⁴What also distinguishes the recent judgment from...