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Published online by Cambridge University Press: 30 October 2015
This article examines the approach followed by the International Court of Justice in Croatia v. Serbia in relation to rape and sexual violence as acts of genocide under Article II of the Genocide Convention. It is argued that this decision leaves much uncertainty with respect to the elements constituting the actus reus of genocide. First, the Court has narrowed the interpretation given by the ad hoc tribunals to what constitutes ‘serious harm’ under Article II(b). Second, it has introduced an objective requirement, which is in fact unnecessary under Article II(c) of the Convention. Third, it seems that, according to the Court, in order for rape and sexual violence to be regarded as genocidal conduct within the meaning of Article II(d) of the Convention, it is necessary to prove that such conduct did in fact prevent births at least within a part of the group.
1 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Merits, Judgment of 3 September 2015.
2 M. Milanovic, ‘On the Entirely Predictable Outcome of Croatia v. Serbia’, EJIL Talk! (6 February 2015) www.ejiltalk.org/on-the-entirely-predictable-outcome-of-croativa-v-serbia/ (accessed 9 April 2015).
3 See Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), supra note 1, (Judge Trinidade Cançado, Dissenting Opinion).
4 On rape and sexual violence in international law, see, e.g., Chinkin, C., ‘Rape and Sexual Abuse of Women in International Law’, (1994) 1 EJIL 326CrossRefGoogle Scholar; Dixon, R., ‘Rape as a Crime Under International Humanitarian Law’, (2002) 13 EJIL 697CrossRefGoogle Scholar; C. Eboe-Osuji, International Law and Sexual Violence in Armed Conflicts (2010); Meron, T., ‘Rape as a Crime Under International Humanitarian Law’, (1993) 87 AJIL 424CrossRefGoogle Scholar; Sivakumaran, S., ‘Sexual Violence Against Men in Armed Conflict’, (2007) 18 EJIL 253CrossRefGoogle Scholar. On actus reus more generally, see Fournet in this symposium.
5 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment of 26 February 2007, [2007] ICJ Rep. 43.
6 ILC, Report on the Work of its Forty-Eighth Session, Yearbook of the ILC 1996, Vol. II(2), UN Doc. A/48/10, 46, at 14.
7 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), supra note 1, para. 157 [emphasis added]. The Appeals Chamber of the ICTY has subsequently referred to this passage and commented by affirming as follows: ‘[S]ignificantly, under Article IX of the Genocide Convention, the International Court of Justice (ICJ) is the competent organ to resolve disputes relating to the interpretation of that Convention. It is also the principal judicial organ of the United Nations and the community of nations at large. See Charter of the United Nations, Art. 92’. Prosecutor v. Zdravko Tolimir, Judgment, Case No. IT-05-88/2-A, A. Ch., 8 April 2015, fn. 580. See Prosecutor v. Momčilo Krajišnik, Judgment, Case No. IT-00-39-T, T. Ch. I, 27 September 2006, para. 862.
8 ILC, supra note 6 [emphasis added].
9 Prosecutor v. Momčilo Krajišnik, supra note 7, para. 862 [emphasis added]. See also Prosecutor v. Athanase Seromba, Judgment, Case No. ICTR-2001-66-A, A. Ch., 12 March 2008, para. 46.
10 Berster, L., ‘Article II’, in Tams, C., Berster, L., and Schiffbauer, B. (eds.), Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (2014), 79Google Scholar at 118–19.
11 Ibid. See also Prosecutor v. Zdravko Tolimir, Judgment, Case No. ICTY IT-05-88/2-T, T. Ch. II, 12 December 2012, para. 738.
13 See, however, Prosecutor v. Zdravko Tolimir, supra note 7, para. 212.
14 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia And Herzegovina v. Serbia and Montenegro), supra note 5, para. 300.
15 Prosecutor v. Akayesu, Judgment, Case No. ICTR-96-4-T, T. Ch. I, 2 September 1998, para. 731 (as quoted in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), supra note 5, para. 300). See also Prosecutor v. Stakić, Judgment, Case No. IT-97-24-T, T. Ch. II, 31 July 2003, para. 516.
16 Prosecutor v. Akayesu, supra note 15, para. 732.
17 Prosecutor v. Kayshema and Ruzindana, Judgment, Case No. ICTR-95-1-T, T. Ch. II, 21 May 1999, paras. 108–9; Prosecutor v. Krstić, supra note 12; Prosecutor v. Bagilishema, Judgment, Case No. ICTR-95-1A-T, T. Ch. I, 7 June 2001, para. 59; Prosecutor v. Athanase Seromba, supra note 9, para. 48. See also footnote 3 to the first ICC Element of Crime to Article 6(b) of the ICC Statute.
18 See, e.g., Jessberger, F., ‘The Definition and the Elements of the Crime of Genocide’, in Gaeta, P. (ed.), The UN Genocide Convention. A Commentary (2009), 87Google Scholar at 99; W. Schabas, Genocide in International Law (2009), 188.
19 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), supra note 1, para. 157.
20 Ibid., para. 158 [emphasis added].
21 See also Prosecutor v. Radovan Karadžić, Judgment, Case No. IT-9S-SI18-AR98bis.l, A. Ch., 11 July 2013, para. 37.
22 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), supra note 1, para. 360.
23 The Appeals Chamber of the ICTY has implicitly suggested a similar conclusion in Prosecutor v. Radovan Karadžić, supra note 21, para. 37.
24 Ibid. See ICC Elements of Crimes, fourth element in relation to Article 6(b). See, e.g., Cryer, R., ‘The Definitions of International Crimes in the Al Bashir Arrest Warrant Decision’, (2009) 7 JICJ 283, at 291Google Scholar.
25 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), supra note 1, para. 363.
26 Ibid., para. 364 [emphasis added]. See Berster, supra note 10, at 123. See Kreß, C., ‘The Crime of Genocide under International Law’, (2006) 6 Int. Crim. L. Rev. 461CrossRefGoogle Scholar, at 481.
27 Prosecutor v. Kayshema and Ruzindana, supra note 17, para. 115.
29 K. Ambos, Treatise on International Criminal Law – Volume II: The Crimes and Sentencing (2014), at 20.
30 W. Schabas, Genocide in International Law (2000), at 243. See ICC Elements of Crimes, fourth element regarding Article 6(c) ICC Statute.
32 Jessberger, supra note 18, at 101.
33 See Prosecutor v. Radovan Karadžić, supra note 21, para. 46.
34 See, however, ICC Elements of Crimes, fifth element regarding Article 6(c) ICC Statute.
35 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), supra note 1, para. 165.; see ibid., para. 164.
36 Ibid., para. 166 [emphasis added].
37 Ibid. [emphasis added].
38 A similar requirement seems to underlie the Court's reasoning in examining Bosnia's claims in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), supra note 5, para. 358.
39 Jessberger, supra note 18, at 101. See ibid., at 102.
40 See, however, ICC Elements of Crimes, fifth element regarding Article 6(d) ICC Statute.
41 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), supra note 1, para. 397.
42 Ibid., paras. 399–400.
43 Ibid.
45 Prosecutor v. Akayesu, supra note 15, para. 507.
46 Ambos, supra note 29, at 17.
47 On the ICC Elements of Crimes as non-binding, additional means of interpretation of the ICC Statute, see L. Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court (2014), 286–94.
48 W. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2010), at 125.
49 The Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Pre-Trial Chamber, 4 March 2009, paras. 132–3.
50 Kreß, C., ‘The Crime of Genocide and Contextual Elements. A Comment on the ICC Pre-Trial Chamber's Decision in the Al Bashir Case’, (2009) 7 JICJ 297, at 302Google Scholar. See Prosecutor v. Krstić, Judgment, Case No. IT-98-33-A, A. Ch., 19 April 2004, para. 224 and fn. 366.
51 Prosecutor v. Akayesu, supra note 15, para. 731 (as quoted in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), supra note 5, para. 300). See also Prosecutor v. Stakić, supra note 15, para. 516.
52 Prosecutor v. Kambanda, Judgment and Sentence, Case No. ICTR 97-23-S, T. Ch. I, 4 September 1998, para. 16.
