1 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, Art. II.

2 Prosecutor v. Radoslav Brđanin, Judgment, Case No. IT-99-36-T, T.Ch. II, 1 September 2004, para. 695.

3 See Prosecutor v. Milomir Stakić, Judgment, Case No. IT-97-24-T, T.Ch. II, 31 July 2003, para. 520.

4 See Report of the International Commission of Inquiry on Darfur to the Secretary-General, UN Doc. S/2005/60 (1 February 2005) [‘Darfur Report’], at 4 at II (‘a determination that only a competent court can make’); United Nations Office of the High Commissioner for Human Rights, Report of the Mapping Exercise Documenting the Most Serious Violations of Human Rights and International Humanitarian Law Committed Within the Territory of the Democratic Republic of the Congo between March 1993 and June 2003 (August 2010) (‘Mapping Exercise’), para. 522 (‘Only . . . judicial determination would be in a position to resolve whether these incidents amount to the crime of genocide’); Human Rights Council, Report of the Detailed Findings of the Commission of Inquiry on Human Rights in the Democratic People's Republic of Korea (7 February 2014), UN Doc. A/HRC/25/CRP.1 (‘North Korea Report’), para. 1159 (‘This is a subject that would require thorough historical research’).

5 But see infra, note 79, on the ICJ's reliance on the case law of the ICTY and the decisions of its Prosecutor.

6 Darfur Report, supra note 4, at II.

7 Kirsch, S., ‘The Two Notions of Genocide: Distinguishing Macro Phenomena and Individual Misconduct’, (2009) 42 Creighton Law Review 347Google Scholar.

8 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment of 3 February 2015 (not yet published), paras. 441, 515. The Darfur Report was more cautious and noted that the Government of Sudan had ‘not pursued a policy of genocide’. Its authors did, however, feel confident enough to state that the ‘crucial element of genocidal intent appears to be missing, at least as far as the central Government authorities are concerned’ (para. 640). The North Korea Report noted that the Commission had ‘not [been] in a position’ to collect sufficient information for a finding that the authorities had the ‘intent to physically annihilate’ followers of particular religions (para. 1159). The Mapping Exercise likewise found that it was not in a position to determine whether the relevant events amounted to genocide (para. 522).

9 Croatia v. Serbia, supra note 8, para. 132, and see in general paras. 124–66.

10 See Oxford English Dictionary (OED), ‘genocide (n.)’. The OED does define genocide as the ‘deliberate . . . extermination of a national or ethnic group’, but does not appear to require a heightened form of intent. On the legal requirements of specific intent, see Behrens, P., ‘The Mens Rea of Genocide’, in Behrens, P. and Henham, R., Elements of Genocide (2012), 70, at 75–96Google Scholar.

11 See, for instance, L. Kuper, Genocide: Its Political Use in the Twentieth Century (1982), 32.

12 See Elements of Crime (2002), UN Doc. PCNICC/2000/1/Add.2, Art. 6, (see first element of each alternative, which in this regard arguably reflects customary international law). (But see in general on the difficulties of reliance on the Elements of Crime in the case of Croatia v. Serbia, infra, at note 30).

13 See infra, section 2.2.

14 For a troubling example in the context of the ICTR, see Kirsch, supra note 7, at 358.

15 See Croatia v. Serbia, supra note 8, paras. 145, 404; 407; 410; 416; 440; heading before 508; 511.

16 Ibid., para. 440.

17 Ibid., para. 145.

18 Ibid., para. 178.

19 On the value of acts and utterances of the accused, see Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-T, T.Ch. I, 2 September 1998, para. 728. For a case demonstrating the relevant evidentiary difficulties, see Stakić, supra note 3, paras. 547, 553, 554.

20 Croatia v. Serbia, supra note 8, para 174.

21 See Croatia v. Serbia, Memorial of the Republic of Croatia (Vol. 1), 1 March 2001 (‘Croatia Memorial’), in particular 381–6, paras. 8.16 to 8.17; Croatia v. Serbia, Counter-Memorial Submitted by the Republic of Serbia (Vol. 1), 1 December 2009 (‘Serbia Counter-Memorial’), in particular 452–63, paras. 1412–52.

22 Case Concerning the 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, para. 373.

23 Ibid.

24 This is a point which is inherent to the logic of evidence; but the importance of relevance is also affirmed in the rules of procedure of various international tribunals. See on this P. Behrens, ‘Assessment of International Criminal Evidence: The Case of the Unpredictable Génocidaire’, (2011) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 666, and Croatia v. Serbia, supra note 8, para. 180.

25 Heller, K. J., ‘International Criminal Tribunal for Rwanda – Genocide – Conspiracy to Commit Genocide – Complicity in Genocide – Mens Rea – Judicial Notice’, (2007) 101 AJIL 159Google Scholar.

26 See on this Croatia v. Serbia, supra note 8, section V.B.2. Section V.B. deals with ‘genocidal intent’, a question which is approached through the question ‘Is there a pattern of conduct from which the only reasonable inference to be drawn is an intent of the Serb authorities to destroy, in part, the protected group?’

27 See infra, note 31.

28 The example is taken from the phrasing of ‘[m]urder under specific aggravating circumstances’ in the German Criminal Code (s. 211). German Criminal Code (Michael Bohlander, trs.), available at http://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p1803 (accessed 18 June 2015).

29 Elements of Crime, supra, note 12, Art. 6 (see the last element of each alternative).

30 See Croatia v. Serbia, supra note 8, Separate Opinion (Judge Gaja) (‘Gaja Opinion’), para. 2. See also Croatia, maintaining that acts of a ‘small number of individuals’ may reflect genocidal intent, Croatia v. Serbia, supra note 8, para. 144.

31 Croatia v. Serbia, supra note 8, para. 139.

32 See infra, at note 57.

33 Prosecutor v. Goran Jelisić, Judgment, Case No. IT-95-10-T, T. Ch., 14 December 1999, para. 100. This view by the Trial Chamber has led to some controversy in the literature, with Schabas noting that this position might be called ‘the Lee Harvey Oswald theory of genocide’. W. Schabas, ‘Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the Former Yugoslavia’, (2001/2002) 25 Fordham International Law Journal 31. The Trial Chamber itself referred to the difficulty of proving genocidal intent of an individual if crimes were not widespread (Jelisić, para. 101). But that was not the reason why Jelisić was acquitted on the charge of genocide: The reason, rather, was that the Chamber found he had ‘killed arbitrarily rather than with the clear intention to destroy a group’ (ibid., para. 108). Against that, the Appeals Chamber noted that a ‘reasonable trier of fact could have discounted the few incidents where [Jelisic] had shown mercy as aberrations’ (Appeals Chamber Judgment, para. 71. On the difficulty caused by inconsistencies in the conduct of perpetrators accused of genocide, see P. Behrens, ‘A Moment of Kindness? Inconsistency and Genocidal Intent’, in R. Henham and P. Behrens, The Criminal Law of Genocide: International, Comparative and Contextual Aspects (Ashgate 2007), 125–40).

34 Croatia v. Serbia, supra note 8, para. 512.

35 Ibid., para. 129.

36 ILC Draft Articles on State Responsibility, 2001, YILC, Vol. 2, part II, at 34, Art. 2, Commentary, para. 3.

37 See P. Behrens, ‘Article 6: Genocide’, in M. Klamberg, Case Matrix Network, ICC Commentary (CLICC), at <http://www.casematrixnetwork.org/cmn-knowledge-hub/icc-commentary-clicc/commentary-rome-statute/commentary-rome-statute-part-2-articles-5-10/#c3119> (accessed 18 May 2015).

38 Croatia v. Serbia, supra note 8, para. 406; see also Prosecutor v. Vujadin Popović et al., Judgment, Case No. IT-05-88-T, T.Ch. II, 10 June 2010, para. 832.

39 Croatia v. Serbia, supra note 8, para. 406; see also Brđanin, supra note 2, para. 703.

40 Croatia v. Serbia, supra note 8, para. 142; Jelisić, supra note 33, para. 83.

41 Croatia v. Serbia, supra note 8, para. 142 (referring to the ‘area of the perpetrator's activity and control’); Prosecutor v. Radislav Krstić, Judgment, Case No. IT-98-33-A, A. Ch., 19 April 2004, para. 13.

42 Croatia v. Serbia, supra note 8, para. 437.

43 Croatia v. Serbia, supra note 8, Dissenting Opinion (Judge Vukas), para. 5.

44 Croatia v. Serbia, supra note 8, Separate Opinion (Judge Bhandari) (‘Bhandari Opinion’), paras. 23 and 22. Tolimir's conviction for genocide for the murder of the three community leaders in Žepa was reversed on appeal two months after the ICJ's judgment in Croatia v. Serbia. (See Prosecutor v. Zdravko Tolimir, Judgment, Case No. IT-05-88/2-A, A. Ch., 8 April 2015, para. 272. The reasons for that were, however, based on the facts of the situation – the Appeals Chamber expressed its doubts on the Trial Chamber's findings regarding the impact which the killing of these particular community leaders had on the relevant civilian population (ibid., para. 266). On points of law, it supported the Trial Chamber's finding that the selective targeting of leading community figures ‘may amount to genocide and may be indicative of genocidal intent’ (ibid., para. 263) and Judge Bhandari's points therefore still carry validity and highlight the importance of the establishment of substantiality through the functional approach.

45 See on this Prosecutor v. Radislav Krstić, supra note 41, para. 13 and Behrens, supra note 10, at 95.

46 See also P. Behrens, ‘The Need for a Genocide Law’, in P. Behrens and R. Henham, supra note 10, at 245.

47 Croatia Memorial, supra note 21, at 384, footnote 64; at 206, para. 4.166; but see also Serbia Counter-Memorial, supra note 21, at 458, para. 1435.

48 Ibid. See also Akayesu, supra note 19, para. 523 on the significance of the ‘general nature’ of atrocities.

49 See Croatia v. Serbia, supra note 8, para. 408. The ICJ interprets the list of 17 points as factors which Croatia invited the Court to consider for a finding that a ‘systematic policy of targeting Croats with a view to their elimination from the regions concerned’ existed. The nearly identical list in Croatia's memorial, however, makes reference to ‘genocidal intent’ which the state felt had been evidenced through these factors (Croatia Memorial, supra note 21, at 381–5, para. 8.16).

50 Croatia Memorial, supra note 21, 170, para. 4.91 (I would like to thank Mr Andrew Merrylees for drawing my attention to this point).

51 See, e.g., Prosecutor v. Clément Kayishema and Obed Ruzindana, Judgment, Case No. ICTR-95-1-T, T.Ch. I, 21 May 1999, para. 538.

52 On the Court's findings on the events in Bapska and Vukovar, see infra, notes 58 and 59.

53 Bosnia and Herzegovina v. Serbia and Montenegro case, supra note 22, at 204–6, paras. 390–5 and at 214, para. 413.

54 Croatia v. Serbia, supra note 8, para. 438.

55 Akayesu, supra note 19, para. 523.

56 Prosecutor v. Laurent Semanza, Judgment, Case No. ICTR-97-20-T, T.Ch., 15 May 2003, para. 429. The Trial Chamber's approach in this regard was not disturbed on appeal: Prosecutor v. Laurent Semanza, Judgment, Case No. ICTR-97-20-A, A. Ch., 20 May 2005.

57 Croatia v. Serbia, supra note 8, para. 438.

58 Ibid., para. 425, see also paras. 426–8.

59 Ibid., para. 429. The Court entered a similar finding where the events at Ovcara were concerned, para. 430.

60 Bhandari Opinion, supra note 44, para. 50.

61 Prosecutor v. Duško Tadić, Judgment, Case No. IT-94-1-A, A. Ch., 15 July 1999, para. 268.

62 Prosecutor v. Milorad Krnojelac, Judgment, Case No. IT-97-25-A, A. Ch., 17 September 2003, para. 102.

63 Akayesu, supra note 19, para. 522; Jelisić, supra note 33, para. 79.

64 Prosecutor v. Ntagerura, Bagambiki, Imanishimwe, Judgment, Case No. ICTR-99-46-A, A. Ch., 7 July 2006, para. 694.

65 On the relationship between the two concepts, see Behrens, P., ‘Genocide and the Question of Motives’, (2012) 10:3Journal of International Criminal Justice 501, at 503–10CrossRefGoogle Scholar.

66 Triffterer, O., ‘Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such’, (2001) 14 LJIL 339CrossRefGoogle Scholar, at 405.

67 Ibid.

68 See Behrens, supra note 65, at 519–22.

69 Ibid.

70 Croatia v. Serbia, supra note 8, para. 136.

71 See supra notes 38–41.

72 See supra after note 2.

73 Croatia v. Serbia, supra note 8, Separate Opinion (Judge Skotnikov), para. 12. For an opposing view, see Croatia v. Serbia, supra note 8, Separate Opinion (Judge Sebutinde) (‘Sebutinde Opinion’), para. 21.

74 Gaja Opinion, supra note 30, para. 3; Sebutinde Opinion, supra note 73, para. 21.

75 The view which the ILC had adopted in its Draft Articles on State Responsibility with regard to genocide is illuminating: There, genocide appears as an example of a wrongful act which requires ‘intention or knowledge’ of the relevant agents or state organs. See supra, note 36 and Bosnia and Herzegovina v. Serbia and Montenegro, supra note 22, para. 376.

76 See 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, Art. 31(3)(b).

77 See also Schabas, W. A., ‘State Policy as an Element of International Crimes’, (2008) 98 Journal of Criminal Law and Criminology 953, at 970Google Scholar.

78 The very careful consideration of the massacre at Srebrenica in the case of Bosnia and Herzegovina v. Serbia and Montenegro may be recalled in that context – a consideration which went far beyond the establishment of an abstract ‘pattern’ and referred to the intent of specific perpetrators, including ‘some members of the VRS Main Staff’ (Bosnia and Herzegovina v. Serbia and Montenegro, supra note 22, at 292–7). It is true that, where events outside Srebrenica were concerned, the Court examined the claim, advanced by the applicant, that a ‘pattern’ of certain acts could amount to evidence for genocidal intent (ibid., para. 370). But even in that regard, it did not limit itself to a consideration of pattern as the ultimate decisive aspect on that question: The ICJ thus also submitted certain statements to examination (see, e.g., the Strategic Goals issued by Momčilo Krajišnik in 1992, ibid., paras. 371–2). Where pattern itself was concerned, the Court expressed itself in highly critical terms, noting that it did not agree with the ‘broad proposition’ made by the applicant that ‘the very pattern of the atrocities’ demonstrated the necessary intent (para. 373).

79 A situation which has already resulted in fierce criticism, principally on account of the fact that the Prosecutor may have had reasons other than legal considerations to refrain from charging the crime. Sebutinde Opinion, supra note 73, paras. 17–21. See also Croatia v. Serbia, supra note 8, para. 185.

80 See on this also Bhandari Opinion, supra note 44, para. 6.

81 H. Belloc, ‘Jim, Who Ran Away From his Nurse and Was Eaten by a Lion’, in H. Belloc, Cautionary Tales for Children (1907).