The outcome of the Croatia v. Serbia JudgmentFootnote ¹ seems to have come as no surprise,Footnote ² as the International Court of Justice (ICJ) found neither party responsible for any violation of the Convention on the Prevention and Punishment of the Crime of Genocide (Convention). Nonetheless, some have criticized the Court for missing the opportunity to deal with some important issues, including state succession in matters of international responsibility, especially in light of the nature of the values protected by the Convention.Footnote ³ This article examines the approach followed by the Court in relation to rape and sexual violence as acts of genocide under Article II of the Convention.Footnote ⁴ It is argued that this decision leaves much uncertainty with respect to the elements constituting the actus reus of genocide.

Generally, the Court has kept in line with what it held in its 2007 Judgment in the Bosnia v. Serbia case.Footnote ⁵ However, it seems to have departed from this case in relation to its interpretation of what constitutes ‘serious bodily or mental harm to members of the group’ under Article II(b) of the Genocide Convention. Indeed, in the case at issue the ICJ upheld Serbia's arguments when, relying inter alia on the Commentary of the 1996 International Law Commission's (ILC) Draft Articles,Footnote ⁶ it concluded that ‘the serious bodily or mental harm within the meaning of Article II(b) of the Convention must be such as to contribute to the physical or biological destruction of the group, in whole or in part’.Footnote ⁷ In this regard, it should nonetheless be noted that, according to the ILC, ‘[t]he bodily or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part’.Footnote ⁸ In other words, the ILC considered that it sufficed to demonstrate that the seriousness of the harm caused by the act could have threatened the destruction of the group. The standard adopted by the Court in this Judgment, by contrast, is much more stringent.

Moreover, in Croatia v. Serbia, the ICJ cited the Krajišnik case, decided by Trial Chamber I of the International Criminal Tribunal for the Former Yugoslavia (ICTY), which established that serious harm must be such ‘as to contribute, or tend to contribute, to the destruction of the group or part thereof’.Footnote ⁹ According to some, such an approach was already considered to be an ‘excessively narrow interpretation’;Footnote ¹⁰ it nonetheless ‘finds some support in the travaux préparatoires’ of the Convention.Footnote ¹¹ In any case, ‘[h]arm amounting to “a grave and long-term disadvantage to a person's ability to lead a normal and constructive life” has been said to be sufficient for this purpose.’Footnote ¹² Having said that, the ‘tend-to-contribute’ option provided in Krajišnik has disappeared in the conclusions reached by the ICJ and the Court seems to have unjustifiably adopted an even narrower approach to that previously assumed by the ICTY in this respect.Footnote ¹³

With regard to rape and sexual violence, it is worth recalling that in 2007 the ICJ noted that ‘rapes and sexual violence could constitute acts of genocide, if [only] accompanied by a specific intent to destroy the protected group’.Footnote ¹⁴ This was consistent with the historical precedent set out in 1998 by the International Criminal Tribunal for Rwanda (ICTR) in Akayesu, where it established that

In particular, it was noted that ‘[s]exual violence was a step in the process of destruction of the tutsi (sic) group – destruction of the spirit, of the will to live, and of life itself’.Footnote ¹⁶ Subsequent case law and the International Criminal Court (ICC) Elements of Crimes reaffirmed that rape and sexual violence were to be included among those acts which could cause a serious harm within the meaning of Article II(b).Footnote ¹⁷ Moreover, there was no need to prove any kind of cause-and-effect relationship between the acts of violence and the destruction of the group. Such an interpretation enjoyed the support of most of the literature of that timeFootnote ¹⁸ and was the argument Croatia relied on in the present case.Footnote ¹⁹

Nevertheless, the very fact that, according to the ICJ, ‘rape and other acts of sexual violence are capable of constituting the actus reus of genocide within the meaning of Article II(b) of the Convention’,Footnote ²⁰ implies that this is not automatic.Footnote ²¹ At the same time, the Court merely concluded that these acts caused such bodily or mental harm as to contribute to the physical or biological destruction of the protected group, with no further explanation.Footnote ²² Having embraced a narrower standard than the ‘tend-to-contribute’ one, the Court should have in fact justified such an assertion.

Moreover, the fact that rape and sexual violence have been taken into consideration along with other acts – as was the case in 2007 – suggests that in this case the Court implicitly considered ‘the-seriousness-of-the-harm’ requirement to be met thanks to the systematicity of such acts.Footnote ²³ Indeed, in assessing the seriousness of the harm caused by the acts of rape and sexual violence, a clearly established pattern of similar conduct might have been sufficient for the Court to find the actus reus of genocide established within the meaning of Article II(b) of the Convention.Footnote ²⁴ However, at this stage, the Court avoided making an explicit reference to such a pattern. Hence, the halfway approach that the Court has chosen to follow seems to weaken its own reasoning and, with respect to Article II(b), maintains a high degree of uncertainty around the actus reus of genocide.

As for Article II(c), the ICJ concluded that ‘there is sufficient reliable evidence to establish that a number of instances of rape and other acts of sexual violence were perpetrated within the context of the conflict’.Footnote ²⁵ However, it also affirmed that

In Kayishema and Ruzindana the Trial Chamber II of the ICTR established that calculation as a concept includes ‘circumstances which will lead to a slow death’.Footnote ²⁷ Also ‘“deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” includes methods of destruction which do not immediately lead to the death of members of the group’.Footnote ²⁸ At least with regard to rape, the ICJ seems, however, to have left aside an important aspect of the genocidal conduct described by Article II(c), namely, the ‘calculation’ associated with it.Footnote ²⁹ Apart from the ‘ordinary’ genocidal intent to destroy the whole group (or part thereof), the word ‘calculated’ adds that the conduct must be the principal mechanism through which the perpetrator aims to destroy the group.Footnote ³⁰ This, however, is not the same as saying that the actual destruction of the group (or part thereof) should be considered an element of the crime. In fact, this requirement only relates to the purposes underlying the perpetrators’ conduct.

Regrettably, while according to the ICJ, ‘Article II(c) of the Convention covers methods of physical destruction, other than killing, whereby the perpetrator ultimately seeks the death of the members of the group’,Footnote ³¹ the inclusion of rape seems to depend on the Applicant successfully showing that such conduct was carried out on a certain scale. In other words, in order for rape and sexual violence to be considered as means to achieve the final goal of the physical destruction of the group, this conduct must take place on a sufficient scale.Footnote ³² The expression ‘capable of bringing about’ has then resulted in the necessity to prove that rape or sexual violence reached a certain threshold, whereas the word ‘calculated’, while not excluding the possibility of relying on the scale factor,Footnote ³³ would not have made it a mandatory requirement.Footnote ³⁴

Lastly, the Court upheld Serbia's argument,Footnote ³⁵ by affirming that ‘the systematic nature of such acts has to be considered in determining whether they are capable of constituting the actus reus of genocide within the meaning of Article II(d) of the Convention’.Footnote ³⁶ Further, according to the Court, ‘it is necessary that the circumstances of the commission of those acts, and their consequences, are such that the capacity of members of the group to procreate is affected’.Footnote ³⁷ By referring to the necessity to take into account the consequences of rape and sexual violence, the Court added an additional requirement – the Applicant must show how these acts have in fact prevented births within the group.Footnote ³⁸ On the contrary, similar to Article II(c) of the Convention, this category of genocidal conduct does not require proving such a result.Footnote ³⁹ In any case, considering this additional requirement, it is unclear how the mere fact that rape and sexual violence would have occurred on a certain scale could have per se led the Court to establish the actus reus within the meaning of Article II(d) of the Convention.Footnote ⁴⁰

In fact, the Court concluded that not only did Croatia fail to provide ‘sufficient evidence that acts of rape were committed in order to prevent births within the group’,Footnote ⁴¹ but that it failed to do so also in relation to acts of sexual violence that were perpetrated by the JNA and Serb forces.Footnote ⁴² As for the former, the wording of paragraph 397 of the decision seems to suggest that, to determine the intent to prevent births within the group, the scale of this conduct becomes relevant in a similar way to Article II(c). Thus, on the one hand, according to paragraph 397, the scale factor should have proven the perpetrators’ intent to inflict conditions of life so as to destroy the group (or part thereof) within the meaning of Article II(c) of the Convention; on the other hand, as noted above, by adopting the expression ‘capable of bringing about’ the Court in fact relied on the lack of the sine qua non scale factor to conclude that the measures under consideration were not objectively capable of achieving such an aim. This might result in quite significant confusion.

With regard to other acts of sexual violence, the Court concluded that Croatia did not show that such acts ‘were perpetrated in order to prevent births within the group’, without going into further details.Footnote ⁴³ Since Article II(d) provides that both acts share the same intent, it seems to be at least likely that the manner of establishing the existence of such an intent might be the same. Again, the scale factor could have been relevant, but there is no reason to believe that an act having even a single victim, and therefore being unlikely to be perpetrated on a systematic scale, could not ‘form a complete actus reus’.Footnote ⁴⁴

More generally, it is unclear how the intent to create conditions of life capable of effecting the physical destruction of a group or of preventing births within it could only be inferred from the scale of the conduct. For instance, in Akayesu, it was noted that

The impression is that for rape and sexual violence the Court considered that a contextual element is in fact legally necessary in order for the conduct to constitute the actus reus of genocide.Footnote ⁴⁶ While the Convention does not mention any such contextual element, more recently, another relevant, although non-binding instrument did so, namely, the ICC Elements of Crimes.Footnote ⁴⁷ Notwithstanding the existence of contrary ICTY case law,Footnote ⁴⁸ the ICC has considered the contextual element contained in the Elements of Crimes as being not inconsistent with the relevant provision of the Rome Statute, namely, Article 6.Footnote ⁴⁹ Notably, this Article is a verbatim transcription of Article II of the Genocide Convention. In the judgment at issue, therefore, the ICJ aligns itself with ICC practice, and, at least in this respect, seems to validate the argument of those who see the ICC Elements of Crimes as an ‘expression of a “consensus by the international community” that a certain crime should be interpreted in a certain way’.Footnote ⁵⁰

In conclusion, the way the ICJ treated rape and sexual violence in the Croatia v. Serbia Judgment gives rise to some concern. First, through the introduction of the expression ‘so as to contribute to the physical or biological destruction of the group, in whole or in part’, which has narrowed down the interpretation given by the ad hoc tribunals to what constitutes ‘serious harm’ under Article II(b), the Court has also weakened the standing of rape as ‘one of the worst ways of inflicting harm on the victim as he or she suffers both bodily and mental harm’.Footnote ⁵¹ Second, by considering ‘calculated’ as equal to ‘capable of bringing about the physical destruction of the group’, the Court introduced an objective requirement, which is in fact unnecessary under Article II(c) of the Convention. Third, the Court seems to suggest that, 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. Therefore, this judgment regrettably creates considerable uncertainty about the elements constituting the actus reus of what has been defined as ‘the crime of crimes’.Footnote ⁵²