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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

Published online by Cambridge University Press:  30 October 2015

MARTIN STEINFELD
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Abstract

This article critically examines the concept of ethnic cleansing in light of the ruling of the International Court of Justice (ICJ) in Croatia v. Serbia. It suggests that the lack of overt reference to it in the Genocide Convention constitutes a significant lacuna in judicial recognition and protection of atrocities committed in both the Former Yugoslavia and more generally, which the ICJ categorically refused to address. Having examined how the ICJ attempted to conceptualize ethnic cleansing as evidence of both the actus reus of genocide (particularly in relation to Article II(c) of the Convention) and its mens rea, the article then critically assesses the Court's reasoning in its refusal to rule that a violation of the Convention had taken place in relation to deportation and forcible transfer. The article then concludes by contending that the Court simply failed to provide a much-needed and workable precedent to properly include ethnic cleansing within the legal and factual matrix of genocide.

Keywords

ethnic cleansingevidence of the actus reusevidence of the dolus specialisGenocide ConventionICJ
Type
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice
Information
Leiden Journal of International Law , Volume 28 , Issue 4 , December 2015 , pp. 937 - 944
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2015 

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References

1 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment of 3 February 2015; Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, [2007] ICJ Rep. 43 (hereinafter Genocide judgment).

2 Prosecutor v. Milan Martić, Judgment, Case No. IT-95–11-T, T.Ch. I, 12 June 2007; Prosecutor v. Jovica Stanišić and Franko Simatović, Judgment, Case No. IT-03-69-T, T.Ch. I, 13 May 2013.

3 Croatia v. Serbia, The Court determined that Serbia had violated Article II(a) and (b) of the Convention by killing, injuring, and, in other ways ill-treating Croats in Eastern Slavonia, Banovina/Banija, Kordun, Lika and Dalmatia but was not prepared to rule that Serbia had violated Article II(c) of the Convention. In any case, all of these acts lacked, in its view, the dolus specialis of genocide. See paras. 295, 360, 394, and 440.

4 Genocide judgment, supra note 1, para. 297.

5 Croatia v. Serbia, supra note 1, paras. 499 and 515.

6 With the exception of Article II(e), which does classify as genocide forcibly transferring children of the group to another group. No argument was made, though, by either party that this took place in Croatia during the Yugoslav civil war.

7 Croatia v. Serbia, supra note 1, para. 84 (citing the wording of the Convention itself).

8 Ibid., para. 85.

9 Genocide judgment, supra note 1, para. 190 and repeated in Croatia v. Serbia, supra note 1, para. 162.

10 As the Court summarized: ‘Croatia argues that forced displacement, accompanied by other acts listed in Article II of the Convention, and coupled with an intention to destroy the group, is a genocidal act’. Ibid., para. 161.

11 Ibid., para. 163.

12 Ibid.

13 Ibid., para. 361.

14 Ibid.

15 Ibid. In relation to killings perpetrated by the JNA or Serb paramilitary forces determined to violate Art. II (a), see paras. 224 (Vukovar), 230 (Boganovici), 240 (Lovas), 245 (Dalj), 256 (Joševica), 261 (Hrvatska Dubica), 267 (Lipovača), 271 (Saborsko), 277 (Poljanak), 284 (Škabrnja and Nadin), 294 (Dubrovnik), and 295. In relation to violations of Art. II(b), see paras. 305 and 311 (Vukovar), 315 (Bapska), 319 (Tovarnik), 324 (Berak), 330 (Lovas), 335 (Dalj), 346 (Voćin), 350 (Ɖulovac), 354 (Knin), and 360.

16 Ibid., para. 374 (citing Martić, paras. 427–31).

17 Ibid., para. 375 (citing Stanišić and Simatović, para. 997). Perhaps one notable difference between the two cases is that the Court also cited the ICTY's findings on the scale of ethnic cleansing in the SAO Krajina region between April 1991 and April 1992 (amounting to the forced displacement of ‘between 80,000 and 100,000 people’).

18 Ibid., para. 376.

19 Particularly violations of Article II(a) and (b) as the Court was at least prepared to rule that the actus reus for both had been satisfied. See supra note 3.

20 Ibid., paras. 476–80.

21 Ibid., paras. 408–9.

22 Ibid., para. 412.

23 Ibid., paras. 426–8.

24 Ibid., para. 437. Croatia alleged that 12,500 Croats were murdered, a figure which Serbia disputed.

25 Ibid., para. 435.

26 Ibid., para. 434.

27 Ibid., paras. 426 and 420 respectively.

28 Ibid. See, in particular, paras. 408 and 434–7.

29 Ibid., paras. 501–7. The point being made here is that at least in relation to the ‘Brioni Transcript’ there was evidence that was recorded of a meeting that took place in which senior Croatian military officials discussed their preparation for ‘Operation Storm’, in contrast with the claim being made against Serbia where no such ‘high level’ meeting was cited. In other words, the inferences that could be drawn from such a transcript are another matter (and, indeed, beyond the scope of this article). As the ICTY revealed in Prosecutor v. Ante Gotovina and Mladen Markač, there was judicial disagreement on how the transcript could be interpreted in terms of whether it established that the appellants had committed various acts of murder and inhumane acts as a crime against humanity in a joint criminal enterprise; Judgment, Case No. IT-06–90-A, A.Ch. 16 November 2012, para. 4. Whilst the original trial judgment was prepared to rule that the transcript was evidence of the intention by high-level Croat officials to forcibly remove the entire Serb population of the Krajina region, this was overruled on appeal on the basis of it not being the case that its ‘only reasonable interpretation’ was of a joint criminal enterprise to that effect. Ibid., para. 97.

30 Compare Croatia v. Serbia, supra note 1, paras. 510–14 with paras. 161–3 and paras. 434–40.

31 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-croatia-v-serbia (accessed 19 July 2015).

32 N. Kuhrt, ‘Is the Croatia vs Serbia Genocide Verdict a Reminder of The Hague's Insignificance?, Telegraph, 4 February 2015, www.telegraph.co.uk/news/worldnews/europe/serbia/11389426/Is-the-Croatia-vs-Serbia-genocide-verdict-a-reminder-of-The-Hagues-insignificance.html (accessed 19 July 2015). Likewise, as Lieberman states: ‘Ethnic cleansing shares with genocide the goal of achieving purity but the two can differ in their ultimate aims: ethnic cleansing seeks the forced removal of an undesired group or groups where genocide pursues the group's “destruction”’. Lieberman, B. ‘“Ethnic Cleansing” versus Genocide?’, in Bloxham, D. and Moses, A. D. (eds.) The Oxford Handbook of Genocide Studies (2010), 42 at 45Google Scholar.

33 Rajković, N., ‘On “Bad Law” and “Good Politics”: The Politics of the ICJ Genocide Case and Its Interpretation’, (2008) 21 LJIL 885CrossRefGoogle Scholar.

34 Croatia v. Serbia, supra note 1, Separate Opinion (Judge Keith), paras. 35–36.

35 As Vajda suggests, in her cogent analysis of the ‘restrictive’ approach that international tribunals appeared to have consistently taken in relation to conceptualizing ethnic cleansing within genocide: ‘adjusting the norm would make the prohibition of genocide more applicable to the modern challenges instead of merely serving a symbolic function as a reminder of the Holocaust’. Vajda, M., ‘Ethnic Cleansing as Genocide – Assessing the Croatian Genocide Case before the ICJ’, (2015) 15 International Criminal Law Review 147, at 149CrossRefGoogle Scholar.

36 This is arguably what the ICTY did in Prosecutor v. Zdravko Tolimir, Judgment, Case No. IT-05–88/2-A, A.Ch., 8 April 2015. In the case, the ICTY was prepared to re-affirm the trial judgement's determination that ethnic cleansing can violate Art. 4(2)(b) of the ICTY Statute on genocide (phrased identically to Art. II of the Convention) as constituting the causing of ‘serious mental harm’, although only in relation to forcible transfer that took place at Srebrenica and not Žepa. Ibid., paras. 212 and 219–21. In Srebrenica what was persuasive to the ICTY was the extremity of the circumstances of forcible transfer in that Bosnian Muslim women, children, and the elderly were forcibly separated from male family members (not knowing of the latters’ fate) and were then subjected to ‘appalling conditions’ in their transfer, causing ‘profound trauma’. Ibid., para. 210. This violated Art. 4(2)(b) because it ‘caused grave and long-term disadvantage to the ability of the members of the protected group to lead a normal and constructive life so as to threaten the physical destruction of the group in whole or in part’. Ibid., para. 212. In Žepa, though, the ICTY was prepared to allow the appellant's appeal on the grounds that such ‘grave and long-term’ disadvantages had not been satisfied as the circumstances in Žepa were entirely different because no such separation of male Bosnian Muslims took place and the psychological harm alleged resulted from pressure being ‘exerted’ on the Muslim population to leave, combined with threats and news emerging of what was taking place at Srebrenica, rather than because a substantial portion of the protected had disappeared and possibly been murdered. Ibid., paras. 215–16. The ICJ in Croatia v. Serbia, though, did not even consider forcible transfer in the context of a potential violation of Art. II(b) of the Convention.

37 Quigley himself cites Damrosch and UN General Assembly Resolution 47/21 as evidence of the view that the ethnic cleansing and genocide that took place in Bosnia were effectively part of the same genocidal plan. See Quigley, J., The Genocide Convention: An International Law Analysis (2006), 195Google Scholar.

38 See Milanovic, supra note 31. See also, Vajda, supra note 35, at 154.

39 Croatia v. Serbia, supra note 1, Dissenting Opinion (Judge Cançado Trindade), para. 241.

40 Ibid., para. 414. The standard protocol, as the Court outlined in citing Martić, appeared to be that a village would be shelled, then troops would enter it and start killing and committing other acts of violence against the local Croat population. This would then be followed by looting, the destruction of property and churches, leading finally to the forcible removal of the remaining population. In other words, Serb troops would enter a village with the explicit intention of murdering a sizeable portion of its population with a view to establishing a ‘Greater Serbia’ and it would appear to be almost impossible to cognitively separate off the intention to achieve a nationalistic aim through fully intending to kill whilst at the same time desiring to ‘spare’ others through ethnic cleansing. Indeed, the mindset, in which those committing various heinous crimes often have multiple purposes, is arguably essentially at the heart of the modern world of ethnic conflict and this could have been reflected in the Court's reasoning. It should be noted that the prosecutors in the case chose not to charge the defendant with genocide, choosing instead to try to secure a conviction under Art. 3 (Violations of the laws or customs of war) and/or Art. 5 (Crimes against humanity). Martić, supra note 2, paras. 3–8; See also Gotovina and Markač where the prosecutor indicted the defendants on the same grounds; Prosecutor v. Gotovina and Markač, Judgement, Case No. IT-06-90-T, T. Ch., 15 April 2011, para. 1. On one level, therefore, the ICJ's reasoning in Croatia v. Serbia was merely reflecting the lack of a conviction by the ICTY on the grounds of genocide in the Martić case. However, it does not follow that, because no decision was taken to prosecute the defendant for violating Art. 4 of the ICTY Statute, a conviction on the grounds of genocide would not have been secured. Indeed, in Martić what cannot be ignored in relation to the case was that the prosecution was able, inter alia, to secure a conviction against the defendant for violating Art. 5(d) of the ICTY Statute in relation to deportation. Martić, supra note 2, paras. 426–32.