The European Journal of International Law Vol. 18 no.

4 © EJIL 2007; all rights reserved

..........................................................................................

The International Court of

Justice and the Elements of
the Crime of Genocide

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Claus Kreß*

Abstract
This article seeks to identify the contribution made by the International Court of Justice (ICJ
or Court) to the international criminal law on genocide in its judgment of 26 February 2007
on the Case concerning the Application of the Convention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro).1 The overall
assessment is as follows: while the judgment contains welcome clarification and consolida-
tion of the international criminal law on genocide in several respects, the Court did not fully
apprehend the complex structure of the crime. Most importantly, the Court did not provide
a coherent explanation for its characterization of the atrocities committed in Srebrenica as
genocide. This note will not deal in any detail with the concept of a state act of genocide consti-
tuting an internationally wrongful act, the ICJ’s factual findings, or its approach to admitting
and weighing evidence.

1
The Court’s Self-restraint Regarding International

Criminal Law
Regarding the sad chain of events that occurred in Bosnia and Herzegovina between
1992 and 1995, the Court declared that it attaches ‘the utmost importance to the …
legal findings made by the ICTY’.2 This statement of self-restraint would appear to
be part of the Court’s judicial policy in responding to what may be called the ‘Tadic

* Professor of Criminal Law and Public International Law, University of Cologne. Email: claus.kress@
uni-koeln.de.
1
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 Feb. 2007 (hereinafter ‘Genocide’ case
or judgment).
2
Ibid., at para. 403.

EJIL (2007), Vol. 18 No. 4, 619−629 doi: 10.1093/ejil/chm039

620 EJIL 18 (2007), 619−629

challenge’.3 The Court argues for roughly the following division of labour between
itself and international criminal jurisdictions: where confronted with a preliminary
question of international criminal law, the Court will defer to the pertinent case law of
an international criminal court; at the same time, the Court expects an international
criminal court to exercise a corresponding degree of self-restraint when faced with a
preliminary question of general public international law.

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Such a division of labour is certainly desirable insofar as it promotes stability and
legal certainty in the international legal order. However, these ends must be delicately
balanced against the need for substantive justice. In this regard, the Genocide judg-
ment could benefit from some refinement. First, the contemplated division of labour
should not be mistaken by the Court as a licence to apply its own jurisprudence with-
out responding to legal challenges made to it. The Court must remain open to having
its case law challenged on legal grounds, and respond to these challenges in a reasoned
manner. Applied to the Genocide judgment, this means that it was not good enough for
the ICJ to hold that the applicable rule of attribution is ‘effective control’ based simply
on one of its previous judgments. Instead, the ICJ should have squarely addressed the
legal challenge posed by the Applicant when it directed the Court to reconcile its rule
of attribution with the case law of the Appeals Chamber of the International Criminal
Tribunal for the Former Yugoslavia (ICTY).4
Secondly, and similarly, the Court should not unquestionably accept international
criminal law jurisprudence emanating from international criminal tribunals if this
case law is still evolving, is inconsistent, or is otherwise open to serious challenge.
Accordingly, the ICJ should not have adopted, without explanation, the ICTY’s posi-
tion that genocide was committed in Srebrenica. At the same time, the ICJ must be
commended for making findings on the concept of ‘protected group’ in the definition
of genocide, and on the question of whether or not a policy of so-called ‘ethnic cleans-
ing’ amounts to genocide under international criminal law.

2
The Court’s Failure to Clarify the Structure of the Crime of

Genocide
The structure of the crime of genocide poses quite a problem.5 The definition lacks
an explicit ‘contextual’ element and thus appears at first sight to be drafted from the
perspective of the ‘lone individual’ seeking to destroy a protected group as such. How-
ever, it is clear that a single human being will not, except in the most exceptional
circumstances, be capable of destroying a protected group or a part thereof.
It is interesting to note that Raphael Lemkin already stated that ‘[g]enocide is
intended to signify a coordinated plan of different actions aiming at the destruction of
essential foundations of the life of national groups, with the aim of annihilating the

3
On this challenge see Kress, ‘L’organe de facto en droit international public’, 105 RGDIP (2001) 93.
4
Prosecutor v. Tadic, IT-94-1-A, judgment, 5 July 1999, at para. 120 ff.
5
For a more detailed analysis of the crime’s structure and elements see Kreß, ‘The Crime of Genocide Under
International Law’, 6 Int’l Criminal L Rev (2006) 461.
 The International Court of Justice and the Elements of the Crime of Genocide


621

groups themselves’.6 This view mirrors the horrifying historical backdrop to the Geno-
cide Convention7 – the Holocaust – which is clearly reflected in the travaux préparatoires
of the Convention.8 It is not just the history and genesis of genocide, however, that cau-
tions against bringing the isolated perpetrator within the scope of the crime – excep-
tional circumstances apart. The crime’s status as a crime under general international
law also suggests that a clear international dimension must exist in respect of the under-

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lying conduct. This dimension will normally be absent in the case of the lone individual.
Equally, categorizing the conduct of a lone individual as genocide would disconnect the
crime of genocide from its historical roots as a crime against humanity. The requisite
contextual element of all crimes against humanity is that they must occur as part of a
systematic or widespread attack against any civilian population.9 Such a disconnection
would not only be highly implausible in light of the historical development of the law,
but also for reasons of coherency within the corpus of crimes under international law.
Indeed, it would be an oddity to dispense with a context requirement for the crime of
genocide, while at the same time emphasizing the special stigma that attaches to this
crime.10
The general exclusion of the lone perpetrator from the scope of the international
crime of genocide is broadly in line with the Genocide Convention case law, and sub-
sequent practice. For example, the District Court of Jerusalem inquired into the overall
genocidal campaign masterminded by the Nazi leadership,11 the Chambers of the Inter-
national Criminal Tribunal for Rwanda (ICTR) concerned themselves with the ques-
tion of whether or not there was a ‘nationwide’ genocide in Rwanda in 1994,12 and
the competent Trial Chamber in the groundbreaking ICTY judgment on the charge of
the commission of genocide in Bosnia considered it necessary to make a determina-
tion regarding the overall ‘criminal enterprise’.13 This mode of analysis was endorsed
by states parties when they adopted the Elements of Crimes under the Statute of the
International Criminal Court (ICC Elements).14 The states parties decided to place the
conduct of the individual perpetrator ‘in the context of a manifest pattern of similar

6
R. Lemkin, Axis Rule in Occupied Europe (1944), at 79 (emphasis added).
7
Convention on the Prevention and Punishment of the Crime of Genocide, 9 Dec. 1948 (entry into force
on 12 Jan. 1951), 78 UNTS 277.
8
In that respect, reference is made to the Summary Records of the meetings of the Sixth Committee of the
General Assembly, UNGAOR, 6th Committee, 3rd session, 1948.
9
See in particular Art. 7 of the ICC Statute as the first comprehensive codification of crimes against
humanity.
10
In Prosecutor v. Krstic, IT-98-33-A, judgment, 19 Apr. 2004, at para. 36, the ICTY Appeals Chamber
expressed the following generally held view: ‘[a]mong the grievous crimes this Tribunal has the duty to
punish, the crime of genocide is singled out for special condemnation and opprobrium’. This mirrors the
characterization of genocide as the ‘crime of crimes’ in Prosecutor v. Kambanda, ICTR-97-23-S, judgment
and sentence, 4 Sept. 1998, at para. 16.
11
Attorney-General of the Government of Israel v. Eichmann, Judgment of 12 Dec. 1961, 36 Int’l L Rep (1968) 79.
12
See the groundbreaking judgment in Prosecutor v. Akayesu, ICTR-96-4-T, judgment, 2 Sept. 1998, at
para. 469.
13
Prosecutor v. Krstic, IT-98-33-T, judgment, 2 Aug. 2001, at para. 549.
14
ICC-ASP/1/3, Pt. II,; pursuant to Art. 9 of the ICC Statute, the Elements of Crimes are to assist the Court
in the interpretation and application of Arts 6, 7, and 8.
622 EJIL 18 (2007), 619−629

conduct’ as long as such a perpetrator’s conduct cannot ‘itself effect such destruc-
tion’.15 As one negotiator confirmed, this ‘quasi-contextual element’ was ‘introduced
to avoid the view expressed in the Jelisic case that genocide could be committed by
a single individual’.16 Against this backdrop, it is surprising how easily the ICTY’s
Appeals Chamber concluded that this ‘definition adopted in the Elements of Crimes did
not reflect customary law’ in 1995.17 In doing so, the Appeals Chamber overlooked a

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crucial opportunity to clarify the admittedly complex structure of genocide.
Despite correctly introducing a ‘quasi-contextual element’ to the crime of genocide,
the ICC Elements still fail to explain how its reference to the ‘manifest pattern of simi-
lar conduct’ relates to the definition of the crime. It is submitted that the answer lies
in recognizing that, for all practical purposes,18 an individual perpetrator’s genocidal
intent requires a genocidal campaign as an implicit point of reference. Without such
an objective point of reference, an individual, who lacks the means to single-hand-
edly effect a (partial) group destruction, cannot have a realistic genocidal intent. He,
rather, only entertains a vain genocidal hope. This leads to the fundamental distinc-
tion between collective and individual genocidal intent, which was so well expressed
by the Trial Chamber in Krstic:
[T]he Chamber emphasises the need to distinguish between the individual intent of the accused
and the intent involved in the conception and commission of the crime. The gravity and scale of
the crime of genocide ordinarily presume that several protagonists were involved in its prepara-
tion. Although the motive of each participant may differ, the objective of the enterprise remains
the same. In such cases of joint participation, the intent to destroy, in whole or in part, a group
as such must be discernible in the act itself, apart from the intent of particular perpetrators.19

The ICJ’s Genocide judgment afforded it the perfect opportunity to clarify the status of
a collective genocidal act because the Court was concerned with the possible commis-
sion of genocide by a state. Unfortunately, this opportunity was missed. The Court did
recognize the possibility of a collective genocidal intent in theory.20 It failed, however,

15
See the last common Element of Genocide. The exception ‘could itself effect’ is—in the words of
William Schabas—‘little more than a sophomoric hypothèse d’école’: ‘Darfur and the “Odious Scourge”:
The Commission of Inquiry’s Findings on Genocide’, 18 Leiden J Int’l L (2005) 877.
16
Wilmshurst, ’Genocide’, in R. Cryer et al. (eds), An Introduction to International Criminal Law and Procedure
(2007), at 177; in Prosecutor v. Jelisic, IT-95-10-T, judgment, 14 Dec. 1999, at para. 100, the ICTY held
that it was ‘a priori possible to conceive that the accused harboured the plan to exterminate an entire
group without this intent having been supported by any organisation in which other individuals partici-
pated’; even the Jelisic Chamber was cautious enough, though, to add immediately that ‘it will be very
difficult in practice to provide proof of the genocidal intent of an individual if the crimes committed are
not widespread and if the crime charged is not backed by an organisation or a system’: at para. 101.
17
Judgment, supra note 10, at para. 224.
18
Supra note 15.
19
Supra note 13, at para. 549.
20
Supra note 1, at para. 371. The ICJ recognized that a ‘higher authority’ may possess genocidal intent,
whether within the VRS or the Republika Srpska, or at the level of the Respondent itself’. This intent was
found not to be made out on the facts, at para. 376. The ICJ nevertheless seemed as a matter of law to
admit the possibility of an ‘intent on the part of the Respondent, either on the basis of a concerted plan, or
on the basis that the events reviewed above reveal a consistent pattern of conduct which could only point
to the existence of such intent’.
 The International Court of Justice and the Elements of the Crime of Genocide


623

to shed light on the relevance of such a collective intent for the intent of individual
perpetrators. Instead, when examining the various incidents of atrocities, the Court
seemed to inquire into the possible genocidal intent of unnamed individual perpe-
trators as though such intent could have existed in the absence of a collective geno-
cidal act.21 In adopting this mode of analysis, the Court made the same error as the
Darfur Commission when it considered it possible that certain unnamed individuals

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acted with genocidal intent irrespective of the existence of a collective genocidal act.22
Instead, the Court should have made it clear that, under normal circumstances, the
genocidal intent of the individual perpetrator presupposes his or her knowledge of a
collective genocidal act.

3
The Court’s Position on the Material Elements

(Actus Reus)
The Genocide judgment constitutes a welcome contribution to both the concept of
‘protected group’ and the meaning of ‘deliberately inflicting on the group conditions
of life calculated to bring about its physical destruction in whole or in part’. A question
mark must be placed, however, beside the Court’s understanding of ‘imposing meas-
ures intended to prevent births within the group’.

A
The Concept of Protected Group

Based on the wording and the history of the definition of genocide, the Court rejected
a negative construction of the concept of ‘protected group’, which considers as a
protected group all individuals rejected by the perpetrators of the atrocities.23 This
is correct and nothing must be added to the compelling reasoning underlying that
position.24 It is worth adding, however, that the Court’s reasoning would seem to also
exclude – albeit only by implication – a purely subjective concept of ‘protected group’,
meaning a conception of the group based on the views of the alleged group or perpetra-
tors. The Court correctly recalled that ‘the drafters of the Convention also gave close
attention to the positive identification of groups with specific distinguishing charac-
teristics in deciding which groups they would include and which (such as political
groups) they would exclude’.25 Such an understanding does not only require a positive
identification of the group, but also an essentially objective one.26 This standard does

21
See in particular paras 277, 319, 334, and 354.
22
Report of the International Commission of Inquiry on Darfur to the Secretary-General. Pursuant to SC
Res. 1564, 18 Sept. 2004, Annex to Letter dated 31 Jan. 2005 from the Secretary-General addressed to
the President of the Security Council, S/2005/60, 1 Feb. 2005, at para. 520; for a critique see Kress, ‘The
Darfur Report and Genocidal Intent’, 3 J Int’l Criminal Justice (2005) 577.
23
For such a negative definition see Prosecutor v. Jelisic, supra note 16, at para. 70.
24
The pertinent passages of the judgment, supra note 1, are paras 193–196; the same position was adopted
by the ICTY’s Appeals Chamber in Prosecutor v. Stakic, IT-97-24-A, judgment, 2 Mar. 2006, at paras
20 ff; for the same view see Kreß, supra note 5, at 473 ff.
25
Judgment, supra note 1, at para. 194.
26
Kreß, supra note 5, at 373 ff.
624 EJIL 18 (2007), 619−629

not, however, preclude a court from taking into account the self-perception of a group
when it comes to borderline cases of ethnic groups, as in Rwanda and Darfur.27 In fact,
the Court duly notes that ‘the parties essentially agree that international jurisprudence
accepts a combined subjective-objective approach’.28 In rejecting a negative concept
of ‘protected group’ that is implicitly purely subjective, the Genocide judgment guards
against the transformation of genocide into an unspecific crime of group destruction

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based on a discriminatory motive.

B
Deliberately Inflicting on the Group Conditions of Life Calculated to

Bring about Its Physical Destruction in Whole or in Part
One of the most important aspects of the Genocide judgment is probably its clear dis-
tinction between forcible deportation or expulsion, and the infliction of conditions
calculated to bring about a group’s physical destruction.29 In this context, the Court
cites with approval the ICTY Trial Chamber judgment in Stakic, where it was held
that a ‘clear distinction must be drawn between physical destruction and mere dis-
solution of the group’, and that the ‘expulsion of a group or part of a group does not
in itself suffice for genocide’.30 The Court was correct to apply the narrow legal test of
conduct capable of physically destroying members of the group, as opposed to ‘merely’
removing them or dissolving the group as an entity. The correctness of this standard
is evidenced by use of the word ‘physical’ in the definition of the material element,
and by the well-known rejection of Syria’s proposal that the Convention should con-
tain an expansive conception of genocide that includes forced mass exodus.31 The ICC
Elements’ lamentable reference to ‘systematic expulsion from homes’ will have to be
interpreted in light of this.

C
Imposing Measures Intended to Prevent Births within the Group

The Court was referred by the Applicant to the occurrence of ‘forced separations of
male and female Muslims in Bosnia and Herzegovina, as systematically practised
when various municipalities were occupied by the Serb forces’, and which ‘in all prob-
ability entailed a decline in the birth rate of the group, given the lack of physical con-
tact over many months’.32 The Bosnian claim that forcible separation of the sexes may
amount to genocidal conduct finds support in the ICTR’s Akayesu judgment.33 There,
27
Ibid., at 476 ff.
28
Judgment, supra note 1, at para. 191.
29
See in particular para. 190 of the Judgment, supra note 1.
30
Prosecutor v. Stakic, IT-97-24-T, judgment, 31 July 2003, at para. 519 (citing Kreß, ‘§220 a/§6 VStGB’,
in W. Joecks and K. Miebach (eds), Münchener Kommentar zum Strafgesetzbuch (2003), iii, at 653 ff); para.
519 of the Trial Chamber’s judgment was referred to with approval in Prosecutor v. Krstic, supra note 10,
at para. 33, and not challenged in Prosecutor v. Stakic on appeal, supra note 24, at para. 46.
31
Syria proposed the inclusion of ‘imposing measures intended to oblige members of a group to abandon
their homes in order to escape the threat of subsequent ill-treatment’ as a separate sub-para. of Art. II
of the Genocide Convention, supra note 7; UN GAOR, 3rd session, 6th Committee, at 176 (note 1) and
186 (vote).
32
Judgment, supra note 1, at para. 355.
33
Supra note 13.
 The International Court of Justice and the Elements of the Crime of Genocide


625

the Chamber interpreted the crime of genocide to encompass ‘sexual mutilation, the
practice of sterilization, forced birth control, separation of the sexes and prohibition of
marriages’.34 The ICJ rejected the Bosnian claim and noted ‘that no evidence was pro-
vided in support of this statement’.35 If this comment is meant to refer to the ‘decline of
the birth rate’, the reasoning is flawed because the genocidal act in question does not
require the actual prevention of births. Instead, an intention to effect a decline suffices.

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But perhaps the Court wished to note a lack of evidence regarding the requisite intent.
In that case, though, one would have expected the Court to elaborate on the meaning
of the word ‘intended’ in this particular context. At first sight, this may appear to be
a rather peripheral observation. It will be shown, however, that the possible intent to
reduce the birth rate of the group may be enormously significant in terms of how to
characterize the atrocities committed in Srebrenica.36

4
The Court’s View on Genocidal Intent

Regarding genocidal intent, international criminal lawyers tend to think first and fore-
most of the alternative purpose- and knowledge-based approaches. This controversy is
not really addressed in the Genocide judgment. This is true, even though the term ‘spe-
cific intent (dolus generalis)’ is used throughout the judgment.37 From a comparative
criminal law perspective, the term can carry quite different connotations.38 Since the
judgment is inconclusive regarding the said controversy, there is no need to pursue
the critique of the predominant purpose-based approach any further in this article.39
Instead, the focus in this section will be on the Court’s contribution to the much more
important object of genocidal intent, that is, the destruction of part of a group.

A
(The Intent to) Destroy (a Group in Whole or in Part)

As is well known, the crucial question is whether the concept of destruction extends
to the destruction of the group as a social entity, as was held by German courts.40 As
is equally well known, the ICTY Trial Chamber in Krstic explicitly rejected the social

34
Ibid., at para. 507 (emphasis added).
35
Ibid., at para. 355.
36
Infra sect. 5.
37
Judgment, supra note 1, at para. 187.
38
Kreß, supra note 5, at 494.
39
But see Kress, supra note 22, at 565 ff; and Kreß, supra note 5, at 492 ff.
40
For the jurisprudence in the Jorgic case see ‘Amtliche Sammlung der Entscheidungen des Bundesgerich-
tshofs’, in 45 Strafsachen 81; upheld by the Bundesverfassungsgericht (Federal Constitutional Court)
[2001] Neue Juristische Wochenschrift (NJW) (2001) 1850; for an analysis see Rissing-van Saan, ‘The
German Federal Supreme Court and the Prosecution of International Crimes Committed in the Former
Yugoslavia’, 3 J Int’l Criminal Justice (2005) 398. At the time of writing, the decisions in the Jorgic case
are being challenged before the European Court of Human Rights (ECtHR) for violation of, inter alia,
Art. 7 of the European Convention on Human Rights; for a defence of the German case law see Werle,
‘German Jurisprudence on Genocidal Intent and the European Convention of Human Rights and Funda-
mental Freedoms’, in K. Nuotio (ed.), Festschrift in Honour of Raimo Lahti (2007), 43.
626 EJIL 18 (2007), 619−629

concept of group destruction,41 a position that was upheld on appeal,42 and followed
by the Darfur Commission.43 Still, the law was not, according to some, settled at the
time of the Krstic judgment. For example, Judge Shahabuddeen dissented from the
majority in the Krstic Appeals Chamber judgment and stated that, ‘provided that
there is a listed act, the intent to destroy a group as a group is capable of being proved
by evidence of an intent to cause the non-physical destruction of the group in whole or

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in part’.44 As well, the ICTY Trial Chamber in Blagojevic held in quite confusing terms
that ‘the physical or biological destruction of the group is the likely outcome of a for-
cible transfer of a population when this transfer was conducted in such a way that the
group can no longer reconstitute itself – particularly when it involves the separation
of its members’.45
Against this backdrop of inconsistent case law (and in light of the pending chal-
lenge before the European Court of Human Rights on the legality of the German case
law), observers anxiously anticipated learning what position the ICJ would take on
the issue. In addition, the Court’s factual finding that there was no intent to physically
or biologically destroy all Bosnian Muslims meant that the only way to find the occur-
rence of a nationwide genocide was by adopting a social concept of group destruction.
The Court appears to have rejected this social conception in favour of a narrow one
limited to physical or biological group destruction:
Neither the intent, as a matter of policy, to render an area ‘ethnically homogeneous’, nor the
operations that may be carried out to implement such policy, can as such be designated as
genocide: the intent that characterizes genocide is ‘to destroy, in whole or in part’ a particular
group, and deportation or displacement of the members of the group, even if effected by force,
is not necessarily equivalent to destruction of that group, nor is such destruction an automatic
consequence of the displacement.46

It is somewhat unfortunate that the clarity of this passage suffers – as is true of the
whole paragraph – from a constant oscillation between genocidal intent and the con-
duct element of ‘inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part’. In that respect, the least ambiguous appli-
cation in the Genocide judgment of a narrow physical or biological concept of group
destruction is where the Court was unable to find an intent to destroy regarding the
siege of Sarajevo. It quotes with approval the holding of the ICTY Trial Chamber in
Galic that ‘the attacks on civilians were numerous, but were not consistently so intense
as to suggest an attempt by the SRK to wipe out or even deplete the civilian population

41
The Chamber stated that, ‘despite recent developments, customary international law limits the defini-
tion of genocide to those acts seeking the physical and biological destruction of all or part of the group’:
Prosecutor v. Krstic, supra note 13, at para. 580.
42
Prosecutor v. Krstic, supra note 10, at para. 26.
43
Report, supra note 22, at paras 515, 517, 518, and 520.
44
Supra note 10, at para. 48 in conjunction with para. 55.
45
Prosecutor v. Blagojevic et al., IT-02-60-T, judgment, 17 Jan. 2005, at para. 666; as was noted in Kreß,
supra note 5, at 488. The Blagojevic judgment comes very close to precisely the German case law that was
rejected in Krstic; for a concurring view see Werle, supra note 40, at 45.
46
Judgment, supra note 1, at para. 190.
 The International Court of Justice and the Elements of the Crime of Genocide


627

through attrition’.47 This narrow approach is correct, despite weighty opposing argu-
ments.48 Contrary to what Judge Shahabuddeen believes, the interpretation of the
word ‘destroy’ should not be disconnected from the list of genocidal acts. Otherwise,
the conscious decision of the Sixth Committee to confine the international criminal-
ization of genocide to an exhaustive list of five forms of attacks could be sidestepped.
The destructive goal must therefore be the result of a generalized commission of one

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or more of those acts that form the crime’s actus reus, and this seems to be precisely the
position taken by the ICJ.

B
(The Intent to Destroy) a Group (in Whole or) in Part

Not surprisingly, the Court took the words ‘in part’ to refer to a requirement of substan-
tiality.49 The Court went on to say that ‘the part targeted must be significant enough to
have an impact on the group as a whole’.50 While the Court recognized that the promi-
nence of certain individuals may provide a qualitative justification to consider them
members of the protected group, the Court convincingly rejected the view espoused
by the ICTY Trial Chamber in Krstic that a relevant part of the group must form a
‘distinct entity’.51 Finally, the Court seemed to accept the idea that the members of
a group living within a geographically limited area may form a part of this group. In this
respect, however, the Court held that ‘the area of the perpetrator’s activity and control
are to be considered’. Unfortunately, this reasoning is flawed because once again the
lone perpetrator is the yardstick used by the Court to determine the scope of a contex-
tual element.52 This kind of analysis fails to appreciate the crime’s collective nature. In
any event, the judgment’s considerations in abstracto, if taken together, leave consid-
erable room for concretization.

5
The Atrocities Committed in Srebrenica as Crimes of

Genocide
The ICJ had no difficulty, of course, in finding that acts of killing and of causing serious
bodily and mental harm had been committed in Srebrenica in July 1995. The crucial
question was whether those acts had been committed with the intent to destroy a
part of the protected group concerned, that latter group being the Bosnian Muslims.53

47
Prosecutor v. Galic, IT-98-29-T, judgment, 5 Dec. 2003, at para. 593, cited in Judgment, supra note 1, at
para. 328 (emphasis added).
48
For a more detailed analysis see Kreß, supra note 5, at 486 ff.
49
Judgment, supra note 1, at para. 198.
50
Ibid.
51
Prosecutor v. Krstic, supra note 13, at para. 590; for a critique see Kreß, supra note 5, at 491 (n. 154), cited
in Judgment, supra note 1, at para. 200.
52
See supra sect. 2.
53
The Bosnian Muslims were characterized as a national group within the meaning of the Convention (Pros-
ecutor v. Krstic, supra note 10, at para. 15); the considerable difficulty in distinguishing national groups
from ethnic groups will not be pursued any further in this note; but see Kreß, supra note 5, at 476.
628 EJIL 18 (2007), 619−629

Following the ICTY Appeals Chamber in Krstic,54 the Court considered the Bosnian
Muslims of Srebrenica to form a part of the Bosnian Muslim group, within the mean-
ing of the crime’s definition.55 Instead of giving reasons, the Court cited the following
passage in the Krstic appeals judgment:
The size of the Bosnian Muslim population in Srebrenica prior to its capture by the VRS forces
in 1995 amounted to approximately forty thousand people … Although this population con-

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stituted only a small percentage of the overall Muslim population of Bosnia and Herzegovina
at the time, the importance of the Muslim community of Srebrenica is not captured solely by
its size.56

This way of dealing with a decisive question is very unsatisfactory indeed. This is all
the more so because the quoted passage alludes to a qualitative criterion, but does not
define it. One is thus left with the impression that the ICJ has offered a purely quantita-
tive threshold: about 40,000 individuals forming about 3 per cent of the entire group
apparently sufficed. It must be seriously doubted whether the drafters of the Geno-
cide Convention intended the crime’s scope to be so drastically expanded through the
words ‘in part’. The significance of these words was hardly ever discussed during the
negotiations.57 That said, the Genocide judgment and the ensuing international acqui-
escence constitute a most important element of subsequent practice in support of such
an expansion. Incidentally, the Srebrenica precedent will also be of relevance for the
scope of crimes against humanity. This is because it would seem illogical to apply a
relatively higher quantitative standard to the element ‘any civilian population’ within
the definition of this group of crimes.
Whether there was an intent to destroy the Muslim community in Srebrenica
remains a question. Interestingly, the Court approached the question from the per-
spective of collective activity.58 This approach is correct, of course, but does not fit easily
with the Court’s simultaneous search for the genocidal intent of unnamed individual
perpetrators as if no such collective campaign had been necessary.59 This brings us to
the burning question of what reasons were given by the Court in support of the con-
clusion that there was a collective intent to destroy the Srebrenica part of the Bosnian
Muslim group. Very sadly, the Court provided none. Instead, the Court was here again
content with stating that it ‘has no reason to depart from the Tribunal’s [the ICTY’s]
determination’.60 This, with all due respect, and in recognition of the Court’s judicial

54
Prosecutor v. Krstic, supra note 10, at para. 15.
55
This means that the collective intent to destroy could not have been derived from the plan to kill, meaning
physically to destroy the group of 7,000 to 8,000 Muslim men in Srebrenica. This is because this group
was only part of the identified part of the protected group.
56
Judgment, supra note 1, at para. 296, citing Prosecutor v. Krstic, supra note 10, at para. 15.
57
On the lack of discussion on the purported meaning of the words ‘in part’ during the negotiations see
Kreß, supra note 5, at 489. For scholarly criticism of the risk of ‘distorting the crime’s definition unrea-
sonably’ through an overly generous interpretation of the words ‘in part’ see Schabas, ‘Was Genocide
Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal of the
Former Yugoslavia’, 25 Fordham Int’l LJ (2002) 45; Kreß, supra note 5, at 491.
58
Judgment, supra note 1, at paras. 292 ff.
59
Supra sect. 2, text accompanying note 20.
60
Judgment, supra note 1, at para. 295.
 The International Court of Justice and the Elements of the Crime of Genocide


629

policy to achieve international coordination by an exercise of judicial self-restraint

in fields of ‘lesser expertise’,61 is an entirely inappropriate approach to dealing with
the key question of a contentious case. Instead, the Court had a duty to explain how
a collective intent to destroy the Srebrenica part of the Bosnian Muslims could be
reconciled with the concept of physical or biological group destruction to which the
judgment generally adheres. Instead, it relied on the ICTY appeals judgment in Krstic,

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which held that the atrocities committed in Srebrenica ‘would inevitably result in the
physical disappearance of the Bosnian Muslim population at Srebrenica’.62 Here, physi-
cal disappearance means lasting expulsion, not destruction. Having adopted the nar-
row standard of physical or biological group destruction, the ICJ’s endorsement of this
passage is perplexing.
Barring physical destruction, one wonders whether the existence of a collective
intent to destroy the Bosnian Muslims in Srebrenica can be explained in some other
way based on the narrow physical or biological interpretation of ‘destruction’, which
is preferred. Perhaps more convincing reasoning can be found in the following pas-
sage of the Krstic appeals judgement, which the Court curiously did not cite:
Evidence introduced at trial supported that finding, by showing that, with the majority of
men killed officially listed as missing, their spouses are unable to remarry and, consequently,
to have new children. The physical destruction of the men therefore had severe procreative
implications for the Srebrenica Muslim community, potentially consigning the community to
extinction.63

Quite clearly, this refers to the concept of biological destruction and it would appear to
make sense to think in that direction. Surprisingly, however, neither the ICTY Cham-
bers in Krstic nor, as we have seen, the ICJ characterized the Srebrenica campaign as
the (generalized) imposition of measures intended to prevent births within the group.
Perhaps this failure constitutes the one missing element to a coherent explanation of
the atrocities committed in Srebrenica as genocide under international law.

Concluding Observation
The ICJ agreed with the ICTY Appeals Chamber in Krstic ‘that the law condemns, in
appropriate terms, the deep and lasting injury inflicted, and calls the massacre at Sre-
brenica by its proper name: genocide’.64 Indeed, the unspeakable atrocities committed
in Srebrenica evince a feeling of horror in all of us. However, this feeling should not
silence the international criminal lawyer’s insistence on a compelling legal explana-
tion of this most egregious crime.

61
Supra sect. 1.
62
Judgment, supra note 1, at para. 293 (emphasis added), citing Prosecutor v. Krstic, supra note 10, at para.
28, which in turn is a quotation from Prosecutor v. Krstic, supra note 13, at para. 595.
63
Prosecutor v. Krstic, supra note 10, at para. 28.
64
Judgment, supra note 1, at para. 293, citing Prosecutor v. Krstic, supra note 10, at para. 37.