Between Abstract Event and Individualized Crime: Genocidal Intent in the Case of Croatia

HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice

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

*. Dr. Paul Behrens teaches international law at the University of Edinburgh [

[email protected]

].

1.

The ICJ at a crossroads: Introductory remarks

Commissions of Inquiry and courts with non-criminal jurisdiction often struggle with the concept of genocide. A principal reason for this is to be seen in the fact that, in order to enter a finding that genocide had been committed, it is indispensable to establish the existence of genocidal intent - the intent to 'destroy, in whole or in part, a national, ethnical, racial or religious group, as such'.¹It is an element of such significance that the International Criminal Tribunal for the Former Yugoslavia (ICTY) referred to it as the aspect that 'characterises' the crime.²

The need to investigate aspects of a phenomenon which are strongly dependent on the person of the individual perpetrator, certainly puts international criminal courts and tribunals in a privileged position: as a general rule, the individual defendant is in their courtroom, and they will often have access to information which allows an insight into his mindset. And that is important: the more so, as the mens rea of genocide comprises much more than a mere reflection of elements which already exist on the objective side: specific intent in particular constitutes an aspect which goes far beyond that.³Commissions of Inquiry, but also the ICJ, which has to operate with tools fashioned for inter-state disputes, usually lack the investigatory possibilities at the disposal of their colleagues at the ICTY, the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC).

They tend to deal with this problem in at least two different ways. For one, the game of Old Maid has lost none of its popularity - responsibility for a conclusive finding is often passed on to another authority.⁴It is not an option that is easily available to the ICJ: the buck stops here.⁵The other solution is an approach towards the concept of genocide through a readjustment of the focus onto those (perceived) elements of the crime which can be established without the need for a detailed investigation of the mindset of the...