No Genocidal Intent Proven In Croatia v. Serbia: The Value of “Easy” Cases In Post-Conflict Justice
The International Court of Justice took more than 15 years to decide that claims of genocide were meritless. Does this show the value or the worthlessness of post-conflict dispute?
Application of the Convention on the Prevention and Punishment of the Crime of Genocide, a case at the International Court of Justice involving claims and counterclaims of genocide, is finally resolved with its 3 February 2015 Judgment (Croatia v. Serbia). Croatia began the case on 2 July 1999. In all, the Court took more than 15 years to decide that claims of genocide were meritless. Does this lengthy process and predictable outcome show the value or the worthlessness of post-conflict dispute resolution?
There are at least three major categories of complaints regarding Croatia v. Serbia worth considering. First, from the perspective of those hoping that the Court would find merit to one or the other claims of genocide, the judgment may be disappointing—a devaluation of the suffering of the victims of the underlying acts. Second, from the perspective of international criminal law scholars, the judgment is so unsurprising that it may verge on pointlessness. Third, the length of time between filing the first claim and the final judgment may lead many to believe that such dispute resolution is too slow to be of any real value. This post will examine each complaint in turn.
Individuals disappointed in the findings that no genocide occurred should take heart in the extensive discussions of the actus reus of genocide. For almost half the Judgment, the Court finds acts committed by both sides that would amount to genocide, if only genocidal intent could be proven. This extensive recounting should underline the undeniable suffering and loss of the victims of the acts in question.
Scholars who thought that the result was “entirely predictable” and “inevitable” were correct—as long as they are discussing how the case was viewed by objective specialists. Of course, the audience for this judgment is much wider than experts in international criminal law. Not only does the Judgment provide clarity regarding the facts—the acts described and the lack of provable genocidal intent behind them—but it may help to clarify the law. Explaining that genocide is not (as popularly understood) simply mass killing but rather is a narrow crime requiring the specific intent to destroy a particular type of group as such, in whole or in part, is helpful both to clarify the law and cool the rhetoric that tends to surround claims of genocide.
What about the timing of the Judgment? Particularly given the fact that most experts thought a finding of no genocidal intent would be the result, shouldn’t this dispute have been resolved long ago? While some may write the effort to resolve this dispute was political and imply that it should never have been brought, unresolved claims of genocide have a way of lingering. The short-term didactic effect of the judgment is inevitably limited by entrenched lay opinion, but it should not be minimized in the long term. Far better that the Court take advantage of the ICTY’s extensive record and settle the claims and counterclaims now than have no ruling from the principal judicial organ of the United Nations to point to, if and when trouble returns to the region. The Judgment has real value, even if its immediate effects are minimal.