                           COUR INTERNATIONALE DE JUSTICE

                               RECUEIL DES ARRÊTS,
                        AVIS CONSULTATIFS ET ORDONNANCES

                      APPLICATION DE LA CONVENTION
                   POUR LA PRÉVENTION ET LA RÉPRESSION
                          DU CRIME DE GÉNOCIDE
                                (CROATIE c. SERBIE)

                             ARRÊT DU 3 FÉVRIER 2015

                                  2015
                           INTERNATIONAL COURT OF JUSTICE

                             REPORTS OF JUDGMENTS,
                          ADVISORY OPINIONS AND ORDERS

                     APPLICATION OF THE CONVENTION
                   ON THE PREVENTION AND PUNISHMENT
                        OF THE CRIME OF GENOCIDE
                                (CROATIA v. SERBIA)

                           JUDGMENT OF 3 FEBRUARY 2015

7 CIJ1077.indb 1                                            18/04/16 08:53

                                            Mode officiel de citation :
                         Application de la convention pour la prévention et la répression
                                   du crime de génocide (Croatie c. Serbie),
                                         arrêt, C.I.J. Recueil 2015, p. 3

                                                Official citation :
                         Application of the Convention on the Prevention and Punishment
                                  of the Crime of Genocide (Croatia v. Serbia),
                                       Judgment, I.C.J. Reports 2015, p. 3

                                                                                1077
                                                                 No de vente:
                   ISSN 0074-4441                                Sales number
                   ISBN 978-92-1-157269-8

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                                                         3 FÉVRIER 2015

                                                             ARRÊT

                   APPLICATION DE LA CONVENTION POUR LA PRÉVENTION
                         ET LA RÉPRESSION DU CRIME DE GÉNOCIDE
                                  (CROATIE c. SERBIE)

                   APPLICATION OF THE CONVENTION ON THE PREVENTION
                       AND PUNISHMENT OF THE CRIME OF GENOCIDE
                                  (CROATIA v. SERBIA)

                                                        3 FEBRUARY 2015

                                                          JUDGMENT

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                                                                                3

                                           TABLE OF CONTENTS

                                                                                Paragraphs

                   Chronology of the Procedure 	                                              1‑51
                      Institution of proceedings, notifications, preliminary objections
                           and filing of written pleadings on the merits	                     1‑16
                      Organization of the oral proceedings and accessibility to the
                           public of the pleadings and transcripts	                          17‑48

                      Claims made in the Application and submissions presented by
                          the Parties	                                                       49‑51
                     I. Background	                                                          52‑73
                       A. The break‑up of the Socialist Federal Republic of
                          Yugoslavia and the emergence of new States	                       53‑59
                       B. The situation in Croatia	                                          60‑73
                    II. Jurisdiction and Admissibility 	                                    74‑123
                       A. Croatia’s claim	                                                  74‑119
                          (1) Issues of jurisdiction and admissibility which remain to
                              be determined following the 2008 Judgment	                     74‑78
                          (2) The positions of the Parties regarding jurisdiction and
                              admissibility	                                                 79-83
                          (3) The scope of jurisdiction under Article IX of the Geno-
                              cide Convention 	                                              84‑89
                          (4) Serbia’s objection to jurisdiction	                           90‑117
                            (a) Whether provisions of the Convention are retro
                                active	                                                     90‑100
                            (b) Article 10 (2) of the ILC Articles on State Responsi-
                                bility	                                                    102‑105
                            (c) Succession to responsibility	                              106‑117
                          (5) Admissibility	                                               118‑119
                       B. Serbia’s counter‑claim	                                          120‑123
                   III. Applicable Law : The Convention on the Prevention and
                        Punishment of the Crime of Genocide                                124‑166
                       A. The mens rea of genocide                                         132‑148
                          (1) The meaning and scope of “destruction” of a group	           134‑139

                            (a) Physical or biological destruction of the group	           134‑136
                            (b) Scale of destruction of the group	                         137‑139

                                                                                4

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                            application of genocide convention (judgment)                     4

                         (2) The meaning of destruction of the group “in part”	         140‑142

                         (3) Evidence of the dolus specialis	                           143‑148
                       B. The actus reus of genocide	                                   149‑166
                         (1) The relationship between the Convention and interna-
                             tional humanitarian law	                                   151‑153
                         (2) The meaning and scope of the physical acts
                             in question	                                               154‑166
                            (a) Killing members of the group	                          155‑156
                            (b) Causing serious bodily or mental harm to members
                                of the group	                                          157‑160
                            (c) Deliberately inflicting on the group conditions of life
                                calculated to bring about its physical destruction	    161‑163
                            (d) Measures intended to prevent births within
                                the group 164‑166
                   IV. Questions of Proof 	                                             167‑199
                      A. The burden of proof	                                           170‑176
                      B. The standard of proof 	                                        177‑179
                      C. Methods of proof 	                                             180‑199
                    V. Consideration of the Merits of the Principal Claim	              200‑442
                      A. The actus reus of genocide 	                                   203‑401
                         (1) Introduction	                                              203‑208
                         (2) Article II (a) : killing members of the protected group	   209‑295

                   		 Region of Eastern Slavonia	                                       212‑245
                            (a) Vukovar and its surrounding area 	                      212‑224
                            (b) Bogdanovci	                                             225‑230
                            (c) Lovas	                                                  231‑240
                            (d) Dalj	                                                   241‑245
                           Region of Western Slavonia	                                  246‑250
                   		Voćin	                                                             246‑250
                           Region of Banovina/Banija	                                   251‑261
                            (a) Joševica	                                               251‑256
                            (b) Hrvatska Dubica and its surrounding area	               257‑261
                           Region of Kordun 	                                           262‑267
                   		Lipovača	                                                          262-267
                           Region of Lika	                                              268‑277
                            (a) Saborsko	                                               268‑271
                            (b) Poljanak	                                               272‑277
                           Region of Dalmatia	                                          278‑294

                                                                                5

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                            application of genocide convention (judgment)                        5

                           (a) Skabrnja and its surrounding area	                          278‑284
                           (b) Bruška	                                                     285‑288
                           (c) Dubrovnik	                                                  289‑294
                           Conclusion	                                                        295
                         (3) Article II (b) : causing serious bodily or mental harm to
                             members of the group	                                         296‑360
                           Region of Eastern Slavonia	                                     298‑335
                           (a) Vukovar 	                                                   298‑311
                                (i) The shelling of Vukovar	                               299‑301
                               (ii)
                                    The capture of Vukovar and its surrounding
                                    area	                                                  302‑305
                              (iii)
                                    The invasion of Vukovar hospital and the
                                    transfers to Ovčara and Velepromet camps	              306‑311
                           (b) Bapska	                                                     312‑315
                           (c) Tovarnik	                                                   316‑319
                           (d) Berak	                                                      320‑324
                           (e) Lovas	                                                      325‑330
                           (f) Dalj	                                                       331‑335
                           Region of Western Slavonia	                                     336‑350
                           (a) Kusonje 	                                                   336-340
                           (b) Voćin	                                                      341‑346
                           (c) Dulovac 	                                                   347-350
                           Region of Dalmatia	                                             351‑354
                   		Knin	                                                                 351‑354
                           Missing persons	                                                355‑359
                           Conclusion	                                                         360
                         (4) Article II (c) : deliberately inflicting on the group condi-
                             tions of life calculated to bring about its physical des-
                             truction in whole or in part	                                 361‑394
                           Rape	                                                           362‑364
                           Deprivation of food	                                            365‑368
                           Deprivation of medical care	                                    369‑372
                           Systematic expulsion from homes and forced displace-
                           ment	                                                           373‑377
                           Restrictions on movement	                                       378‑380
                           Forced wearing of insignia of ethnicity	                        381‑382
                           Looting of property belonging to Croats	                        383‑385
                           Destruction and looting of the cultural heritage	               386‑390
                           Forced labour	                                                  391‑393
                           Conclusion	                                                         394
                         (5) Article II (d) : measures intended to prevent births within
                             the group	                                                    395‑400
                   		 Conclusion on the actus reus of genocide	                               401

                                                                                6

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                               application of genocide convention (judgment)                     6

                         B. The genocidal intent (dolus specialis)	                        402‑440
                           (1) Did the Croats living in Eastern Slavonia, Western Sla-
                               vonia, Banovina/Banija, Kordun, Lika and Dalmatia
                               constitute a substantial part of the protected group ?	     405-406
                           (2) Is there a pattern of conduct from which the only reaso-
                               nable inference to be drawn is an intent of the Serb
                               authorities to destroy, in part, the protected group ?	     407-439

                              (a) Context	                                                 419‑430
                              (b) Opportunity	                                             431‑437
                           Conclusion on the dolus specialis	                                 440
                         C. General conclusion on Croatia’s claim	                         441-442
                     VI. Consideration of the Merits of the Counter‑Claim	                 443‑523
                        A. Examination of the principal submissions in the counter‑
                           claim : whether acts of genocide attributable to Croatia
                           were committed against the national and ethnical group
                           of Serbs living in Croatia during and after Operation
                           Storm	                                                   446‑515
                           (1) The actus reus of genocide	                                 452‑499
                              (a) The evidence presented by Serbia in support of the
                                  facts alleged	                                           454‑461
                              (b) Whether the acts alleged by Serbia have been
                                  effectively proved	                                      462‑498
                                   (i)	Killing of civilians as a result of the allegedly
                                        indiscriminate shelling of Krajina towns	          463‑475

                                   (ii)	Forced displacement of the Krajina Serb popula-
                                         tion	                                             476‑480
                                  (iii)	Killing of Serbs fleeing in columns from the
                                         towns under attack	                               481‑485
                                  (iv)	Killing of Serbs having remained in the areas of
                                         the Krajina protected by the United Nations	      486‑493
                                   (v)	Ill‑treatment of Serbs during and after Operation
                                         Storm	                                            494‑496
                                  (vi)	 Large‑scale destruction and looting of Serb
                                         property during and after Operation Storm	        497‑498

                    		 Conclusion as to the existence of the actus reus of geno-
                       cide	                                                                  499
                           (2) The genocidal intent (dolus specialis)	                     500‑515
                              (a) The Brioni Transcript	                                   501‑507
                              (b) Existence of a pattern of conduct indicating
                                  genocidal intent	                                        508‑514

                                                                                7

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                              application of genocide convention (judgment)                  7

                       		Conclusion regarding the existence of the dolus specialis
                         and general conclusion on the commission of genocide	            515
                        B. Discussion of the other submissions in the counter‑claim	   516‑521

                          (1) Alternative submissions	                                 516-517
                          (2) Subsidiary submissions	                                  518‑519
                          (3) Submissions requesting the cessation of the internatio-
                              nally wrongful acts attributable to Croatia and repara-
                              tion in respect of their injurious consequences	         520‑521
                       General conclusion on the counter‑claim	                        522-523
                    VII. Operative Clause	                                                524

                                                                                8

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                                                                                8

                               ABBREVIATIONS AND ACRONYMS

                    BiH         Bosna i Hercegovina (Bosnia and Herzegovina)
                    CHC         Croatian Helsinki Committee for Human Rights
                    FRY         Federal Republic of Yugoslavia
                    HV          Hrvatska vojska (Croatian army)
                    ICTR        International Criminal Tribunal for Rwanda
                    ICTY        International Criminal Tribunal for the former
                                Yugoslavia
                    ILC         International Law Commission
                    JNA         Jugoslovenska narodna armija (Yugoslav People’s
                                Army)
                    MUP         Ministarstvo unutrašnjih poslova (Ministry of Interior)
                    RSK         Republika Srpska Krajina (Republic of Serb Krajina)
                    SAO         Srpska autonomna oblast (Serb Autonomous Region)
                    SAO SBWS    Serb Autonomous Region of Slavonia, Baranja and
                                Western Srem
                    SDG         Srpska dobrovoljačka garda (Serbian Volunteer Guard)
                    SDS         Srpska demokratska stranka (Serb Democratic Party)
                    SFRY        Socialist Federal Republic of Yugoslavia
                    SNB         Služba nacionalne bezbednosti (National Security
                                Service)
                    SRS         Srpska radikalna stranka (Serbian Radical Party)
                    TO          Teritorijalna odbrana (Territorial Defence Force)
                    UNPA        United Nations Protected Area
                    UNPROFOR    United Nations Protection Force
                    VJ          Vojska Jugoslavije (Yugoslav army)
                    VP          Vojna policija (military police)

                                                                                9

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                                                                                9

                                   INTERNATIONAL COURT OF JUSTICE

                                                      YEAR 2015
                                                                                2015
                                                    3 February 2015                                       3 February
                                                                                General List
                                                                                No. 118
                        APPLICATION OF THE CONVENTION
                      ON THE PREVENTION AND PUNISHMENT
                           OF THE CRIME OF GENOCIDE
                                               (CROATIA v. SERBIA)

                       Historical and factual background.
                       Break‑up of the SFRY and emergence of new States — Situation in Croatia —
                    Establishment of Serb autonomous regions — Armed conflict from summer
                    1991 — Vance plan and deployment of United Nations Protection Force — Oper‑
                    ations Flash and Storm in 1995.

                                                            *
                       Jurisdiction and admissibility.
                       Croatia’s claim — Jurisdiction ratione temporis regarding events before
                    27 April 1992 (date the FRY became party to the Genocide Convention) — Arti‑
                    cle IX of the Convention — Disputes “relating to the interpretation, application or
                    fulfilment” of the Convention — Convention not retroactive — Question of appli‑
                    cability of Article 10 (2) of ILC Articles on State Responsibility — Question of
                    succession to responsibility — Dispute exists concerning whether prior acts could
                    engage responsibility of Serbia — Court has jurisdiction over entirety of Croatia’s
                    claim.

                       Admissibility of claim — Admissibility of claim for acts before 27 April 1992
                    involves questions of attribution — Acts prior to 8 October 1991 (date Croatia
                    became party to the Convention) pertinent to evaluation of alleged violations after
                    that date — Not necessary to rule on these two admissibility questions until the
                    Court has assessed the merits of the claim.

                       Serbia’s counter‑claim — Article 80, paragraph 1, of the Rules of Court as
                    adopted on 14 April 1978 — Counter‑claim is within the jurisdiction of the
                    Court — Counter‑claim is directly connected to claim in fact and law — Counter-
                    claim admissible.

                                                            *
                                                                                10

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                                 application of genocide convention (judgment)                          10

                       Genocide Convention as applicable law — Definition of genocide in Article II of
                    the Convention.
                       Dolus specialis — Meaning and scope of “destruction” of group — Convention
                    limited to physical or biological destruction — Evidence must establish an intent to
                    destroy group in whole or in part — Meaning of destruction of group “in part” —
                    Inference of dolus specialis through pattern of conduct.

                       Actus reus — Meaning and scope of acts listed in Article II of the Conven‑
                    tion — Equivalence of terms “killing” and “meurtre” in Article II (a) — Require‑
                    ment that serious bodily or mental harm in Article II (b) be such as to contribute
                    to the physical or biological destruction of the group, in whole or in part — Forced
                    displacement as actus reus of genocide under Article II (c) — Rape and other acts
                    of sexual violence as actus reus of genocide under Article II (d).

                                                              *
                       Burden of proof — For party alleging a fact to demonstrate its existence —
                    Principle not an absolute one — Other party required to co-operate in provision of
                    evidence in its possession — Reversal of burden of proof not appropriate in present
                    case.
                       Standard of proof — Evidence must be “fully conclusive” — Court must be
                    “fully convinced” that acts have been committed.

                       Methods of proof — ICTY findings of fact accepted as “highly persuasive” —
                    Absence of charges of genocide in ICTY indictments — Probative value of various
                    types of reports adduced in evidence — Evidential weight of individual statements
                    annexed to written pleadings.

                                                              *
                      Principal claim.
                      Actus reus of genocide.
                      Article II (a) of the Convention — Established that a large number of killings
                    carried out by JNA and Serb forces in localities in Eastern Slavonia, Banovina/
                    Banija, Kordun, Lika and Dalmatia — Large majority of victims were members of
                    protected group — Actus reus established.

                      Article II (b) — Established that acts of ill‑treatment, torture, sexual violence
                    and rape perpetrated in localities in Eastern Slavonia, Western Slavonia and Dal‑
                    matia — Acts caused serious bodily or mental harm such as to contribute to the
                    physical or biological destruction of protected group — Actus reus established.

                       Article II (c) — Acts of rape not on scale as to amount to infliction on the group
                    of conditions of life calculated to bring about its physical destruction in whole or in
                    part — Deprivation of food and medical care not of systematic or general nature —
                    Expulsion, forced displacement and restrictions on movement not calculated to

                                                                                11

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                                application of genocide convention (judgment)                          11

                    result in physical destruction of group in whole or in part — Forced wearing of
                    insignia of ethnicity cannot fall within scope of Article II (c) — Looting of Croat
                    property not calculated to result in physical destruction of group in whole or in
                    part — Destruction and looting of cultural heritage cannot fall within scope of
                    Article II (c) — Forced labour not calculated to result in physical destruction of
                    group in whole or in part — Actus reus not established.

                       Article II (d) — Rape and acts of sexual violence committed — Not established
                    that perpetrated to prevent births within group — Actus reus not established.

                       Genocidal intent (dolus specialis) — Part allegedly targeted — Croats living in
                    identified regions formed substantial part of group — Pattern of conduct existed
                    consisting in widespread attacks on localities with Croat populations from
                    August 1991 — Requirement that intent to destroy the group, in whole or in part,
                    must be only reasonable conclusion to be inferred from pattern of conduct — Con‑
                    text in which acts committed does not make it possible to infer such intent — Not
                    established that perpetrators availed themselves of opportunities to destroy sub‑
                    stantial part of protected group — Other factors invoked insufficient to show geno‑
                    cidal intent — Dolus specialis not established.

                       No violation of the Convention established — Principal claim cannot be
                    upheld — Court not required to pronounce on admissibility of principal claim for
                    acts prior to 8 October 1991 — Court need not consider whether acts prior to
                    27 April 1992 attributable to SFRY — Court need not consider succession to
                    responsibility.

                                                              *
                       Counter‑claim.
                       Actus reus of genocide.
                       Question whether there was killing of civilians as a result of the shelling of Kra‑
                    jina towns — Analysis of Gotovina case before ICTY — Indiscriminate shelling
                    not established — No evidence of intentional killing of Serb civilians through shell‑
                    ing — Actus reus under Article II (a) of the Convention not established.

                       Displacement of the Krajina Serb population — Displacement not calculated to
                    bring about physical destruction, in whole or in part, of targeted group — Actus
                    reus under Article II (c) not established.
                       Killing of Serbs fleeing in columns — Established that such killings took
                    place — Actus reus under Article II (a) established.

                         Killing of Serbs remaining in United Nations protected areas — Factual find‑
                    ings of ICTY Trial Chamber must be accepted as “highly persuasive” —
                    Established that such killings took place — Actus reus under Article II (a) estab‑
                      lished.
                         Ill‑treatment of Serbs during and after Operation Storm — Analysis of
                     Gotovina case before ICTY — Established that acts causing serious

                                                                                12

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                                application of genocide convention (judgment)                      12

                    bodily or mental harm took place — Actus reus under Article II (b)
                    established.
                       Large‑scale destruction and looting after Operation Storm — Not calculated to
                    bring about physical destruction, in whole or in part, of targeted group — Actus
                    reus under Article II (c) not established.
                       Genocidal intent (dolus specialis) — Brioni Transcript does not establish geno‑
                    cidal intent — Pattern of conduct — Distinction between ethnic cleansing and
                    genocide — Acts not committed on a scale that could only reasonably point to
                    existence of genocidal intent — Dolus specialis not established.

                      No violation of the Convention established — Counter-claim cannot be upheld.

                                                     JUDGMENT

                    Present : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges Owada,
                              Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade,
                              Yusuf, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari ;
                              Judges ad hoc Vukas, Kreća ; Registrar Couvreur.

                      In the case concerning the application of the Convention on the Prevention
                    and Punishment of the Crime of Genocide,
                      between
                    the Republic of Croatia,
                    represented by
                      Ms Vesna Crnić‑Grotić, Professor of International Law, University of Rijeka,

                      as Agent ;
                      H.E. Ms Andreja Metelko‑Zgombić, Ambassador, Director General for EU
                         Law, International Law and Consular Affairs, Ministry of Foreign and
                         European Affairs,
                      Ms Jana Spero, Head of Sector, Ministry of Justice,
                      Mr. Davorin Lapaš, Professor of International Law, University of Zagreb,
                      as Co‑Agents ;
                      Mr. James Crawford, A.C., S.C., F.B.A., Whewell Professor of International
                         Law, University of Cambridge, Member of the Institut de droit interna-
                         tional, Barrister, Matrix Chambers, London,
                      Mr. Philippe Sands, Q.C., Professor of Law, University College London,
                         Barrister, Matrix Chambers, London,
                      Mr. Mirjan R. Damaška, Sterling Professor Emeritus of Law and Profes
                         sorial Lecturer in Law, Yale Law School,
                      Sir Keir Starmer, Q.C., Barrister, Doughty Street Chambers, London,
                      Ms Maja Seršić, Professor of International Law, University of Zagreb,
                      Ms Kate Cook, Barrister, Matrix Chambers, London,

                                                                                13

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                               application of genocide convention (judgment)                   13

                      Ms Anjolie Singh, Member of the Indian Bar, Delhi,
                      Ms Blinne Ní Ghrálaigh, Barrister, Matrix Chambers, London,
                      as Counsel and Advocates ;
                      Mr. Luka Mišetić, Attorney at Law, Law Offices of Luka Misetic, Chicago,
                      Ms Helen Law, Barrister, Matrix Chambers, London,
                      Mr. Edward Craven, Barrister, Matrix Chambers, London,
                      as Counsel ;
                      H.E. Mr. Orsat Miljenić, Minister of Justice of the Republic of Croatia,
                      H.E. Ms Vesela Mrđen Korać, Ambassador of the Republic of Croatia to the
                         Kingdom of the Netherlands,
                      as Members of the Delegation ;
                      Mr. Remi Reichhold, Administrative Assistant, Matrix Chambers, London,
                      Ms Ruth Kennedy, LL.M. (University College London), Administrative
                         Assistant, University College London,
                      as Advisers ;
                      Ms Sanda Simić Petrinjak, Head of Department, Ministry of Justice,
                      Ms Sedina Dubravčić, Head of Department, Ministry of Justice,
                      Ms Klaudia Sabljak, Ministry of Justice,
                      Ms Zrinka Salaj, Ministry of Justice,
                      Mr. Tomislav Boršić, Ministry of Justice,
                      Mr. Albert Graho, Ministry of Justice,
                      Mr. Nikica Barić, Croatian Institute of History, Zagreb,
                      Ms Maja Kovač, Head of Service, Ministry of Justice,
                      Ms Katherine O’Byrne, Doughty Street Chambers, London,
                      Mr. Rowan Nicholson, Associate, Lauterpacht Centre for International Law,
                         University of Cambridge,
                      as Assistants ;
                      Ms Victoria Taylor, International Mapping, Maryland,
                      as Technical Assistant,
                      and
                    the Republic of Serbia,
                    represented by
                      Mr. Saša Obradović, First Counsellor of the Embassy of the Republic of Ser-
                         bia to the Kingdom of the Netherlands, former Legal Adviser of the Min-
                         istry of Foreign Affairs,
                      as Agent ;
                      Mr. William Schabas, O.C., M.R.I.A., Professor of International Law, Middle
                         sex University and Professor of International Criminal Law and Human
                         Rights, Leiden University,
                      Mr. Andreas Zimmermann, LL.M. (Harvard), Professor of International
                         Law, University of Potsdam, Director of the Potsdam Centre of Human
                         Rights, Member of the Permanent Court of Arbitration,

                      Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Professor of Interna-
                       tional Law, University of Glasgow,

                                                                                14

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                                application of genocide convention (judgment)                     14

                      Mr. Wayne Jordash, Q.C., Barrister at Law, Doughty Street Chambers (Lon-
                         don), Partner at Global Rights Compliance,
                      Mr. Novak Lukić, Attorney at Law, Belgrade, former President of the Asso-
                         ciation of the Defence Counsel practising before the ICTY,
                      Mr. Dušan Ignjatović, LL.M. (Notre Dame), Attorney at Law, Belgrade,
                      as Counsel and Advocates ;
                      H.E. Mr. Petar Vico, Ambassador of the Republic of Serbia to the Kingdom
                         of the Netherlands,
                      Mr. Veljko Odalović, Secretary‑General of the Government of the Republic
                         of Serbia, President of the Commission for Missing Persons,
                      as Members of the Delegation ;
                      Ms Tatiana Bachvarova, LL.M. (London School of Economics and Political
                         Science), LL.M. (St. Kliment Ohridski), Ph.D. candidate (Middlesex),
                         Judge, Sofia District Court, Bulgaria,
                      Mr. Svetislav Rabrenović, LL.M. (Michigan), Senior Adviser at the Office of
                         the Prosecutor for War Crimes of the Republic of Serbia,

                      Mr. Igor Olujić, Attorney at Law, Belgrade,
                      Mr. Marko Brkić, First Secretary at the Ministry of Foreign Affairs,
                      Mr. Relja Radović, LL.M. (Novi Sad), LL.M. (Leiden (candidate)),

                      Mr. Georgios Andriotis, LL.M. (Leiden),
                      as Advisers,

                      The Court,
                      composed as above,
                      after deliberation,
                      delivers the following Judgment :

                          Institution of Proceedings, Notifications, Preliminary Objections and
                                         Filing of Written Pleadings on the Merits
                       1. The Court recalls that the procedural history of the case, from the date of
                    its introduction on 2 July 1999 until 30 May 2008, was set out in detail in the
                    Court’s Judgment of 18 November 2008 on the preliminary objections raised by
                    the Respondent (Application of the Convention on the Prevention and Punishment
                    of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment,
                    I.C.J. Reports 2008 (hereinafter the “2008 Judgment”), pp. 415‑417, paras. 1‑19).
                    These details will not be reproduced in full in the present Judgment, but will be
                    summarized in the following paragraphs.
                       2. On 2 July 1999, the Government of the Republic of Croatia (hereinafter
                    “Croatia”) filed an Application against the Federal Republic of Yugoslavia
                    (hereinafter “the FRY”) in respect of a dispute concerning alleged violations of
                    the Convention on the Prevention and Punishment of the Crime of Genocide
                    (hereinafter the “Genocide Convention” or the “Convention”). The Convention
                    was approved by the General Assembly of the United Nations on 9 Decem-
                    ber 1948 and entered into force on 12 January 1951. The Application invoked

                                                                                15

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                                application of genocide convention (judgment)                      15

                    Article IX of the Genocide Convention as the basis of the jurisdiction of the
                    Court.
                      3. Under Article 40, paragraph 2, of the Statute of the Court, the Registrar
                    immediately communicated a certified copy of the Application to the Govern-
                    ment of the FRY ; and, in accordance with paragraph 3 of that Article, all other
                    States entitled to appear before the Court were notified of the Application.

                       4. Pursuant to the instructions of the Court under Article 43 of the Rules of
                    Court, the Registrar addressed to States parties to the Genocide Convention the
                    notification provided for in Article 63, paragraph 1, of the Statute. The Regis-
                    trar also sent to the Secretary‑General of the United Nations the notification
                    provided for in Article 34, paragraph 3, of the Statute and subsequently trans-
                    mitted to him copies of the written proceedings.
                       5. By an Order dated 14 September 1999, the Court fixed the time‑limits for
                    the filing of a Memorial by Croatia and a Counter‑Memorial by the FRY. By
                    Orders of 10 March 2000 and 27 June 2000, these time‑limits, at the request of
                    Croatia, were successively extended. The Memorial of Croatia was filed on
                    1 March 2001, within the time‑limit finally prescribed.

                      6. Since the Court included upon the Bench no judge of the nationality of
                    the Parties, each of them exercised its right under Article 31, paragraph 3,
                    of the Statute to choose a judge ad hoc to sit in the case : Croatia chose
                    Mr. Budislav Vukas and the FRY chose Mr. Milenko Kreća.

                       7. On 11 September 2002, within the time‑limit provided for in Article 79,
                    paragraph 1, of the Rules of Court as adopted on 14 April 1978 and applicable
                    to this case, the FRY raised preliminary objections relating to the Court’s juris-
                    diction to entertain the case and to the admissibility of the Application. On
                    25 April 2003, within the time‑limit fixed by the Court by Order of 14 Novem-
                    ber 2002, Croatia filed a statement of its observations and submissions on those
                    preliminary objections.
                       8. By a letter dated 5 February 2003, the FRY informed the Court that, fol-
                    lowing the adoption and promulgation of the Constitutional Charter of Serbia
                    and Montenegro by the Assembly of the FRY on 4 February 2003, the name of
                    the State had been changed from the “Federal Republic of Yugoslavia” to “Ser-
                    bia and Montenegro”. Following the announcement of the result of a referen-
                    dum held in Montenegro on 21 May 2006 (as contemplated in the Constitu-
                    tional Charter of Serbia and Montenegro), the National Assembly of the
                    Republic of Montenegro adopted a declaration of independence on 3 June 2006,
                    following which the “Republic of Serbia” (hereinafter “Serbia”) remained the
                    sole Respondent in the case (2008 Judgment, I.C.J. Reports 2008, pp. 421‑423,
                    paras. 23‑34).
                       9. Public hearings were held on the preliminary objections from 26 to
                    30 May 2008. By its 2008 Judgment, the Court rejected the first and third pre-
                    liminary objections raised by Serbia. It found that the second objection — that
                    claims based on acts or omissions which took place before 27 April 1992, i.e.,
                    the date on which the FRY came into existence as a separate State, lay beyond
                    its jurisdiction and were inadmissible — did not, in the circumstances of the
                    case, possess an exclusively preliminary character and should therefore be con-
                    sidered in the merits phase. Subject to that conclusion, the Court found that
                    it had jurisdiction to entertain Croatia’s Application (ibid., pp. 466‑467,
                    para. 146).

                                                                                16

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                                application of genocide convention (judgment)                          16

                      10. By an Order dated 20 January 2009, the Court fixed 22 March 2010 as
                    the time‑limit for the filing of the Counter‑Memorial of Serbia. The Counter‑
                    Memorial, filed on 4 January 2010, contained a counter‑claim.

                       11. At a meeting held by the President of the Court with the representatives
                    of the Parties on 3 February 2010, the Co‑Agent of Croatia indicated that her
                    Government did not intend to raise objections to the admissibility of Serbia’s
                    counter‑claim as such, but wished to be able to respond to the substance of it in
                    a Reply. The Co‑Agent of Serbia stated that, in that case, his Government
                    wished to file a Rejoinder.
                       12. By an Order dated 4 February 2010, the Court directed the submission of
                    a Reply by Croatia and a Rejoinder by Serbia, concerning the claims presented
                    by the Parties, and fixed 20 December 2010 and 4 November 2011 as the respec-
                    tive time‑limits for the filing of those pleadings. The Court also instructed the
                    Registrar to inform third States entitled to appear before the Court of Serbia’s
                    counter‑claim, which was done by letters dated 23 February 2010. The Reply
                    and the Rejoinder were filed within the time‑limits thus fixed.

                       13. By a letter of 30 July 2010, Croatia asked the Court to request Serbia,
                    pursuant to Article 49 of the Statute and Article 62, paragraph 1, of the Rules
                    of Court, to produce certain documents. Between September 2010 and
                    May 2011, Serbia furnished approximately 200 of the documents requested by
                    Croatia.
                       By a letter dated 22 June 2011, Serbia, in turn, asked Croatia to provide it
                    with certain documents. Following further exchanges of correspondence between
                    the Parties, Serbia, by a letter of 22 May 2012, communicated to the Court a
                    copy of a letter addressed to Croatia, in which it made various observations
                    concerning the request by each Party for the other to produce documents. In
                    particular, Serbia expressed concern that it had not yet received the documents
                    requested from Croatia, whereas it had transferred, as soon as possible and
                    without requiring a justification, all requested documents that could be found in
                    its State archives ; Serbia thus asked that Croatia fulfil its request for documents
                    on the basis of reciprocity.

                       The Court subsequently received no further correspondence from the Parties
                    regarding the documents that they requested from each other.
                       14. On 16 January 2012, at a meeting held by the President of the Court with
                    the Agents of the Parties, the Co‑Agent of Croatia stated that her Government
                    wished to express its views on Serbia’s counter‑claim in writing a second time, in
                    an additional pleading.
                       15. By an Order dated 23 January 2012, the Court authorized Croatia to sub-
                    mit such an additional pleading, and fixed 30 August 2012 as the time‑limit for
                    its filing. Croatia filed that pleading within the time‑limit thus fixed, and the case
                    was ready for hearing.
                       16. By a letter dated 14 March 2012, the Registrar, acting pursuant to Arti-
                    cle 69, paragraph 3, of the Rules of Court, asked the Secretary‑General of
                    the United Nations to inform him whether the Organization wished to submit
                    written observations under that provision. By a letter dated 4 April 2012, the
                    Secretary‑General stated that the Organization did not intend to submit any
                    such observations.

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                                application of genocide convention (judgment)                        17

                                 Organization of the Oral Proceedings and Accessibility
                                    to the Public of the Pleadings and Transcripts
                       17. By letters dated 30 August 2012, the Registrar requested the Parties to
                    submit their views on the length of the hearings, and asked them to inform him
                    whether they wished to call witnesses and/or experts. By a letter dated 19 Sep-
                    tember 2012, Serbia, inter alia, informed the Court that it was planning to call
                    eight witnesses and witness‑experts ; for its part, Croatia, by a letter of 31 Octo-
                    ber 2012, inter alia, informed the Court that it was planning to call twelve wit-
                    nesses and witness‑experts.
                       18. By a letter dated 11 September 2012, Serbia informed the Court that the
                    Croatian authorities had contacted at least two of the persons whose statements
                    had been appended to its Rejoinder ; those two individuals had subsequently
                    gone back on their previous statements. By a letter dated 16 October 2012, the
                    Registrar informed the Parties that the Court directed them to refrain from
                    making contact with persons whose statements were appended to the pleadings
                    of the other Party. Furthermore, in order to enable the Court to assess the con-
                    sequences that it might have to draw from the contacts made by Croatian
                    authorities, Croatia was requested to inform it of the total number of witnesses
                    contacted, and of how the Croatian police had contacted them ; Croatia was
                    further requested to provide the Court with a full list of those persons, with their
                    names and addresses. In case the Serbian authorities had also been in touch with
                    persons whose statements had been appended to one of Croatia’s pleadings, the
                    Court sent a similar request to Serbia. By a letter dated 2 November 2012, Cro-
                    atia explained that the Croatian police had been in contact with five of the per-
                    sons whose statements had been appended to Serbia’s Rejoinder ; it provided
                    their names and addresses, as well as a brief description of the manner in which
                    they had been questioned. By a letter dated 26 November 2012, Serbia informed
                    the Court that the Serbian authorities had never been in contact with persons
                    whose statements had been appended to Croatia’s pleadings.

                       19. On 23 November 2012 the President of the Court held a meeting with the
                    representatives of the Parties to discuss the organization of the oral proceedings.
                    At that meeting the Parties were encouraged to reach agreement on the proce-
                    dure for the examination of witnesses and witness‑experts.
                       20. By a letter dated 16 April 2013, Croatia informed the Court that the Par-
                    ties had concluded an agreement on the method of examining witnesses and
                    witness‑experts, and Serbia confirmed this in a letter of 19 April 2013. That
                    agreement provided, inter alia, that each Party would submit to the Court, not
                    later than 15 July 2013, a list of witnesses and witness‑experts that it wished to
                    call, together with their authentic written statements, if such statements had not
                    been annexed to the written pleadings. Each Party would then communicate to
                    the Court, not later than 15 October 2013, the name of any witness or witness‑
                    expert called by the other Party that it did not wish to cross‑examine. It was
                    further agreed that a Party wishing to call a witness or witness‑expert would
                    submit a summary of the witness’ testimony or the witness‑expert’s statement,
                    which would then replace the examination‑in‑chief.

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                                application of genocide convention (judgment)                        18

                       21. By a letter dated 10 July 2013, Croatia informed the Court that it wished
                    to propose changes to the agreement between the Parties referred to in the previ-
                    ous paragraph. In particular, it proposed the extension, from 15 July to 1 Octo-
                    ber 2013, of the time‑limit for the communication, under Article 57 of the Rules
                    of Court, of information regarding witnesses and witness‑experts. By a letter
                    dated 16 July 2013, Serbia informed the Court that it accepted Croatia’s propos-
                    als. By letters of 17 July 2013, the Registrar informed the Parties that the Court
                    had decided to extend to 1 October 2013 the time‑limit for the communication
                    under Article 57 of the Rules of Court of information regarding witnesses and
                    witness‑experts, and to extend to 15 November 2013 that relating to the com-
                    munication by either Party of the names of any witnesses or witness‑experts that
                    it did not wish to cross‑examine.
                       22. By a letter dated 8 August 2013, Serbia informed the Court that it wished
                    to produce a new document pursuant to Article 56, paragraph 1, of the Rules of
                    Court. Serbia also supplied the Court with an English translation of extracts
                    from two documents which it described as being readily available (Article 56,
                    paragraph 4, of the Rules of Court) in the original Serbian version. By a letter
                    dated 10 September 2013, Croatia informed the Court that it did not object to
                    the production of these three documents. By letters dated 20 September 2013,
                    the Registrar informed the Parties that the Court had authorized Serbia to pro-
                    duce the new document that it wished to submit under Article 56, paragraph 1,
                    of the Rules of Court, and that Serbia could refer to that document at the hear-
                    ings ; with respect to the other two documents, as they were “readily available”,
                    these had been added to the case file.
                       23. On 1 October 2013 the Parties communicated to the Court information
                    concerning the persons whom they intended to call at the hearings, as well the
                    written testimony and statements which had not been appended to their plead-
                    ings. Croatia stated that it wished to call nine witnesses and three witness‑experts
                    in support of its claim. For its part, Serbia announced that it was planning to
                    call seven witnesses and one witness‑expert in support of its counter‑claim.

                       24. By a letter dated 14 November 2013, Croatia drew the Court’s attention to
                    the fact that, between 12 and 14 November 2013, the Serbian press had published
                    three articles that might have implications for the witnesses and witness‑experts
                    called to testify in the proceedings. By letters of 21 November 2013, the Regis-
                    trar informed the Parties of the Court’s concerns, and reminded them of their
                    obligation to maintain confidentiality in respect of the information contained in
                    correspondence with the Court, in particular as regards the identity of potential
                    witnesses and witness‑experts.

                        25. By a letter dated 15 November 2013, Croatia informed the Court that it
                    did not wish to cross‑examine the witnesses and witness‑expert of Serbia, on the
                    understanding that they would not be called to testify before the Court, and that
                    their evidence to the Court would be in the form of their written testimony or
                    statements. Croatia added that, if this understanding was not correct, or if the
                    Court itself wished to cross‑examine Serbia’s witnesses or witness‑expert, it
                    reserved the right to cross‑examine them. By a letter of the same date, Serbia,
                    for its part, informed the Court of the names of the five witnesses and one
                    witness‑expert of Croatia that it did not wish to cross‑examine, thus implying
                    that it did wish to cross‑examine the four other witnesses and two other
                     witness‑experts announced by Croatia on 1 October 2013.

                                                                                19

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                                application of genocide convention (judgment)                       19

                      26. On 22 November 2013 the President of the Court held a meeting with the
                    Agents of the Parties in order to discuss further the organization of the oral
                    proceedings. At that meeting the Parties agreed that it was unnecessary to have
                    witnesses and witness‑experts whom they did not intend to cross‑examine come
                    to the Court only to confirm their written testimony or statement unless the
                    Court itself decided to put questions to them.

                        27. By a letter dated 13 December 2013, Serbia informed the Court of the
                    approximate amount of time that it felt it would need in order to cross‑examine
                    the four witnesses and two witness‑experts called by Croatia who were due to
                    testify in court.
                        28. By a letter of that same date, Croatia informed the Court that the wit-
                    nesses and witness‑experts who would testify would all speak in Croatian, with
                    the exception of one, who would speak in Serbian.
                        29. By letters dated 16 December 2013, the Registrar informed the Parties
                    that, at this stage of the proceedings, the Court did not wish to question the wit-
                    nesses and witness‑experts that the Parties were not intending to cross‑examine.
                     At the same time, he further informed them that the Court wished to receive
                     from them, by 20 January 2014, certain additional documents concerning their
                    witnesses and witness‑experts, and that, with respect to a document the produc-
                     tion of which had been requested of Croatia, Serbia would have until 14 Febru-
                     ary 2014 to file any written observations that it wished to make on this
                    document. By a letter dated 14 January 2014, Serbia provided the Court with
                     the documents requested. By a letter of 22 January 2014, Croatia informed the
                     Court that it would be transmitting the requested document slightly late. That
                     document reached the Court on 31 January 2014. The original time‑limit for
                     any written observations on that document by Serbia was extended accordingly.
                     By a letter dated 11 February 2014, Serbia indicated that it did not wish to pres-
                     ent any such observations.

                       30. By a letter dated 30 December 2013, Croatia made certain observations
                    on the procedure for the hearing of its witnesses and witness‑experts, in particu-
                    lar with respect to the allocation of time for the said hearings and the order of
                    presentation of the witnesses and witness‑experts. By a letter dated 10 January
                    2014, Serbia presented its own observations on the matter.
                       31. By a letter dated 17 January 2014, the Registrar asked Croatia to state
                    what arrangements it planned to make, pursuant to Article 70, paragraph 2, of
                    the Rules of Court, for the interpretation into one of the Court’s official lan-
                    guages of the evidence of witnesses and witness‑experts who would be testifying
                    in Croatian or Serbian. By a letter of the same date, Croatia informed the Reg-
                    istry of its arrangements in that regard ; in that same letter Croatia asked the
                    Court to take certain protective measures for two of its witnesses, consisting in
                    particular of hearing their evidence in closed session and referring to them by
                    pseudonyms.
                       32. Under Article 53, paragraph 2, of the Rules of Court, the Registrar
                    requested the Parties, by letters dated 17 January 2014, to indicate their respec-
                    tive views on the question of making accessible to the public the written plead-
                    ings and documents annexed. By a letter dated 24 January 2014, Serbia informed
                    the Court that, with certain exceptions, it consented to copies of its written
                    pleadings and documents annexed being made accessible to the public on the
                    opening of the oral proceedings. Croatia did not make its position known until
                    later (see below, paragraphs 35 and following).

                                                                                20

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                                application of genocide convention (judgment)                        20

                       33. By letters dated 7 February 2014, the Registrar informed the Parties of all
                    the decisions taken by the Court concerning the precise details of the procedure
                    for examining the four witnesses and two witness‑experts called by Croatia who
                    were due to testify in court (see paragraphs 25‑31 above).
                       The Parties were thus advised that, after making the solemn declaration pro-
                    vided for in Article 64 of the Rules of Court, the witness or witness‑expert would
                    be asked to confirm his or her written testimony or statement, which would
                    serve as the examination‑in‑chief. Serbia would then be given the opportunity to
                    cross‑examine the witness or witness‑expert, after which Croatia could conduct
                    a re‑examination. Finally, there would be an opportunity for Members of the
                    Court to put questions to the witness or witness‑expert.
                       With regard to the protective measures requested for two of the witnesses, the
                    Parties were informed that the Court had agreed to the use of pseudonyms when
                    addressing these witnesses or referring to them ; it had also agreed that these
                    witnesses would be heard in closed session, with only Registry staff and mem-
                    bers of the official delegations permitted to be present during their examination,
                    and that two separate sets of documents would be produced (one reserved for
                    confidential use by the Court and the Parties, and the other to be made public,
                    with any information that might lead to the identification of the protected wit-
                    nesses having been deleted).
                       The Parties were further informed that the Court had decided to prescribe the
                    following measures to ensure the integrity of the testimony and statements of the
                    witnesses and witness‑experts : (i) the witnesses and witness‑experts would have
                    to remain out of court both before and after their testimony/statements ; (ii) the
                    written testimony/statements of witnesses and witness‑experts announced by the
                    Parties on 1 October 2013 (whether or not they appear at the hearings), as well
                    as the verbatim records of the hearings at which the witnesses and witness‑experts
                    were examined, would be published only after the closure of the oral proceedings
                    (in redacted form in the case of protected witnesses) ; (iii) the Parties would have
                    to ensure that the witnesses and witness‑experts did not have access to the evi-
                    dence given by other witnesses and witness‑experts before the closure of the oral
                    proceedings ; (iv) the Parties would further have to ensure that the witnesses and
                    witness‑experts would not be otherwise informed of the testimony/statements of
                    other witnesses and witness‑experts and that they would have no contact which
                    could compromise their independence or breach the terms of their solemn decla-
                    ration ; (v) if the Court were to decide that, in general, the annexes to the main
                    pleadings (containing a number of written testimonies on disputed events in the
                    case) should be made available to the public, they would only be published after
                    the closure of the oral proceedings ; and (vi) the public could attend the examina-
                    tions (except the closed sittings), but would be requested not to divulge the con-
                    tent of the testimony/statements until the oral proceedings had closed ; the same
                    would apply to the media, who would have to subscribe to a code of conduct
                    under the terms of which they would be allowed to take photographs and make
                    sound recordings, on the express condition that they did not make public the
                    content of the testimony/statements before the oral proceedings had closed.
                       On the question of the broadcasting of the hearings, the Parties were notified,
                    in the same letters, that the Court had decided that the examinations of the wit-
                    nesses and witness‑experts, whether or not protected, would not be broadcast on
                    the Internet.
                       Lastly, since Croatia had still not indicated its position regarding the acces-
                    sibility to the public of the pleadings and documents annexed thereto (see para-
                    graph 32 above), it was again invited to make known its views on that matter.

                                                                                21

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                                application of genocide convention (judgment)                       21

                       34. By a letter dated 14 February 2014, Serbia communicated to the Court a
                    list of audio‑visual and photographic materials that it intended to present dur-
                    ing its oral arguments, as well as electronic versions of those documents. By
                    letter dated 17 February 2014, Croatia transmitted to the Court electronic ver-
                    sions of the audio‑visual materials on which it intended to rely during its oral
                    arguments. By letter of 21 February 2014, Serbia asked Croatia to specify the
                    source of some of the audio‑visual materials transmitted ; that information was
                    provided by Croatia in a letter dated 26 February 2014. By letters dated 27 Feb-
                    ruary 2014, the Registrar informed the Parties that the Court had decided that,
                    during their oral presentations, they would be allowed to use the audio‑visual
                    and photographic materials that had been communicated to it.

                        35. By a letter dated 14 February 2014, Croatia indicated to the Court that it
                     consented to the publication of its pleadings and documents annexed, provided
                     they were published in redacted form and without a number of annexes, in order
                     to ensure the anonymity of the victims and the individuals who provided it with
                     written testimonies. Croatia suggested that the names of those persons appear-
                    ing in its pleadings be replaced by their initials, and that their written testimo-
                    nies and the lists of prisoners annexed to the said pleadings be withheld from
                    publication. It added that Serbia should also be asked to redact its own plead-
                     ings in the same manner, in so far as they referred to those individuals. Finally,
                     Croatia requested that those individuals should be referred to at the public
                    hearings by their initials or the annex number where their written testimony
                     appeared.
                        36. By letters dated 17 February 2014, the Registrar asked Serbia to indicate
                     to the Court its views on the measures proposed by Croatia, adding that the
                     final decision on these matters would rest with the Court. He also informed the
                     Parties that, in principle, they were responsible for the production of redacted
                     documents to be made accessible to the public. Croatia was finally asked to
                     provide the redacted versions of its pleadings and documents annexed as it
                     would like them to be published. In response to this request, Croatia, by a letter
                     dated 18 February 2014, communicated to the Court redacted versions of its
                     pleadings and annexes, in which (i) the names of victims and individuals who
                     had provided it with written testimonies were replaced by initials, and (ii) the
                     said written testimonies and the lists of prisoners were removed.

                       37. By letters of 18 and 25 February 2014, Serbia objected to Croatia’s
                    requests, made by the latter in its above‑mentioned letter of 14 February 2014
                    (see paragraph 35 above) and repeated in a letter dated 20 February 2014, to
                    redact the written pleadings and to refer to certain individuals in the public
                    hearings by their initials or the annex number of their written testimony. In its
                    letter dated 25 February 2014, Serbia argued that Croatia had not sufficiently
                    explained why its pleadings and documents annexed had to be redacted in the
                    manner proposed.

                       38. Regarding the publication of the written testimonies/statements of those
                    witnesses and witness‑experts announced on 1 October 2013 but who would not
                    be appearing at the hearings (see paragraph 33 above), Croatia, in a letter dated
                    24 February 2014, stated that : (i) one of the witnesses had asked that his written
                    testimony be published under a pseudonym and in redacted form ; (ii) two wit-
                    nesses had objected to the publication of their written testimonies ; and (iii) one
                    of the witnesses had passed away on 19 January 2014. In its letter of 25 Febru-

                                                                                22

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                                application of genocide convention (judgment)                         22

                    ary 2014, Serbia stated that it did not object to the written testimony of the
                    witness referred to in point (i) being published under a pseudonym and in
                    redacted form, or to the written testimonies of the two witnesses referred to in
                    point (ii) not being published, on the understanding that it would be for the
                    Court to decide whether those written testimonies would remain in the case file.
                    Lastly, Serbia indicated that it did not object to the publication of the written
                    testimony of the deceased witness (point (iii)).
                       39. Following these various exchanges on the publication of the written
                    pleadings, the Registrar, by letters dated 27 February 2014, informed the Parties
                    of the latest decisions of the Court in this regard. The Parties were thus advised
                    that the said pleadings would not be published on the opening of the oral pro-
                    ceedings, as more information was required by the Court before deciding exactly
                    which documents should be redacted (and to what extent) or withheld from
                    publication altogether. Furthermore, (i) if the pleadings and documents annexed
                    were to be made accessible to the public, five annexes of Serbia’s Rejoinder
                    would be withheld from publication and the parts of Croatia’s additional plead-
                    ing referring to those annexes would be redacted accordingly ; (ii) the lists of
                    prisoners contained in the annexes to Croatia’s pleadings would be redacted to
                    delete the names of the individuals concerned, but those annexes would not be
                    withheld from publication entirely ; and (iii) the written testimonies of witnesses
                    annexed to Croatia’s pleadings would be made accessible to the public, unless
                    compelling reasons required otherwise (for example, protection of the witnesses
                    in question or national security issues). As regards the written testimonies of
                    some witnesses announced by Croatia on 1 October 2013 but who would not be
                    appearing at the hearings : (i) the written testimony of one of the witnesses
                    would be published under a pseudonym and in redacted form ; (ii) the written
                    testimonies of two witnesses would be discarded if the individuals concerned
                    continued to object to their publication even under a pseudonym and in redacted
                    form ; and (iii) the written testimony of the witness who had passed away would
                    be published.
                       Croatia was further invited to specify the names of the individuals for whom
                    publication of the unredacted pleadings and annexes thereto would pose a genu-
                    ine security risk, and to identify the risk in question and the specific parts of its
                    pleadings and annexes that should in its view be redacted. Once that informa-
                    tion had been provided, the Court would decide which redactions were justified
                    and which annexes should not be published.

                       40. In a letter dated 28 February 2014, Croatia commented on the decisions
                    taken by the Court regarding the accessibility to the public of various docu-
                    ments and the conduct of the oral proceedings. In particular, it asked the Court
                    to grant it additional time to redact in the manner prescribed the lists of prison-
                    ers contained in its annexes. It further indicated that it accepted the Court’s
                    decision to remove from the case file the evidence of the two witnesses who
                    objected to their written testimony being published. However, it did not specify
                    the names of the individuals for whom publication of the unredacted pleadings
                    and documents annexed would pose a genuine security risk, identify the risk in
                    question or the specific parts of its pleadings and annexes that it wished to be
                    redacted.
                       41. By letters dated 3 March 2014, the Registrar informed the Parties that the
                    Court had decided to grant Croatia’s request for additional time to redact the
                    lists of prisoners contained in its annexes and to specify the names of the indi-
                    viduals for whom publication of the unredacted pleadings and documents

                                                                                23

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                                application of genocide convention (judgment)                        23

                    annexed would pose a genuine security risk. The Parties were also told that,
                    pending the receipt of that information, any individuals whose written testimo-
                    nies were annexed to Croatia’s pleadings were to be referred to at the public
                    sittings only by the annex number of these written testimonies.

                       42. By a letter dated 14 March 2014, Croatia provided the Court with
                    redacted versions of the above‑mentioned lists of prisoners. Referring to the
                    recent decisions taken by the Court, Croatia also addressed the question of the
                    publication of the Parties’ written pleadings and documents annexed thereto. It
                    stated in this respect that it did not have the resources to contact each and every
                    one of the individuals named in the written testimonies annexed to its pleadings,
                    in order to ascertain whether the publication of the testimony in which they
                    were named would pose a genuine security risk for them, and on what basis. It
                    therefore proposed the non‑publication of the annexes, the publication of
                    redacted versions of the pleadings, and making the full and unredacted plead-
                    ings available to the public only at the seat of the Court. By a letter dated
                    17 March 2014, Serbia objected to Croatia’s proposals.

                       43. By letters dated 18 March 2014, the Registrar informed the Parties that
                    the Court had decided that Croatia’s pleadings and their annexes, as well as
                    Serbia’s pleadings, would be published in redacted form, to ensure the anonym-
                    ity of the persons identified by Croatia (victims and individuals whose written
                    testimonies were annexed to Croatia’s pleadings). It was specified in the Regis-
                    trar’s letters that these redactions were to be limited to replacing full names by
                    initials, and, exceptionally, when necessary to ensure the protection of the indi-
                    viduals concerned, to deleting other identifying information ; with respect to
                    Serbia’s pleadings, it would fall on Croatia to identify very precisely the parts it
                    deemed had to be redacted.

                       44. In a letter dated 24 March 2014, Croatia identified the parts of Serbia’s
                    pleadings which in its view had to be redacted. Croatia’s letter was communi-
                    cated to Serbia, which was asked to indicate whether it agreed to the suggested
                    redactions and, if so, to provide electronic versions of its pleadings redacted
                    pursuant to Croatia’s suggestions. By a letter dated 27 March 2014, Serbia fur-
                    nished such electronic versions of its pleadings. By a letter dated 28 March 2014,
                    Croatia provided redacted versions of its pleadings and documents annexed
                    thereto in electronic form.
                       45. Public hearings were held from 3 March to 1 April 2014, at which the
                    Court heard the oral arguments and replies of :
                    For Croatia : Ms Vesna Crnić‑Grotić,
                                   Ms Andreja Metelko‑Zgombić,
                                   Ms Helen Law,
                                   Mr. James Crawford,
                                   Mr. Philippe Sands,
                                   Sir Keir Starmer,
                                   Ms Jana Spero,
                                   Ms Blinne Ní Ghrálaigh,
                                   Ms Maja Seršić,
                                   Mr. Davorin Lapaš,
                                   Ms Anjolie Singh.

                                                                                24

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                                application of genocide convention (judgment)                         24

                    For Serbia :	Mr. Saša Obradović,
                                  Mr. William Schabas,
                                  Mr. Andreas Zimmermann,
                                  Mr. Christian Tams,
                                  Mr. Novak Lukić,
                                  Mr. Dušan Ignjatović,
                                  Mr. Wayne Jordash.
                       46. The following witnesses and witness‑experts were called by Croatia and
                    heard at two public hearings and one closed hearing, held on 4, 5 and
                    6 March 2014 : as witnesses, Mr. Franjo Kožul, Ms Marija Katić, Ms Paula Milić
                    (pseudonym) and Mr. Ivan Krylo (pseudonym) ; and as witness‑experts,
                    Ms Sonja Biserko and Mr. Ivan Grujić. They were cross‑examined by counsel
                    for Serbia and re‑examined by counsel for Croatia. Several judges put questions
                    to the witnesses and witness‑experts, who replied orally.

                       47. At the hearings, questions were put to the Parties by Members of the
                    Court and replies given orally, in accordance with Article 61, paragraph 4, of
                    the Rules of Court.
                       48. In accordance with the decisions of the Court (see paragraphs 33, 39 and
                    43 above), the following documents were made public at the close of the oral
                    proceedings : redacted versions of the pleadings and their annexes ; written testi-
                    monies of the witnesses (in redacted form for the protected witnesses) and writ-
                    ten statements of the witness‑experts ; and verbatim records of the hearings at
                    which the witnesses and witness‑experts were examined (in non‑redacted form,
                    since neither the Parties nor the protected witnesses requested the Court to
                    redact portions of the verbatim records of the hearing of protected witnesses).

                                                             *

                               Claims Made in the Application and Submissions Presented
                                                   by the Parties
                      49. In its Application, the following claims were made by Croatia :
                            “While reserving the right to revise, supplement or amend this Applica-
                         tion, and, subject to the presentation to the Court of the relevant evidence
                         and legal arguments, Croatia requests the Court to adjudge and declare as
                         follows :
                         (a) that the Federal Republic of Yugoslavia has breached its legal obliga-
                             tions toward the people and Republic of Croatia under Articles I,
                             II (a), II (b), II (c), II (d), III (a), III (b), III (c), III (d), III (e),
                             IV and V of the Genocide Convention ;
                         (b) that the Federal Republic of Yugoslavia has an obligation to pay to
                             the Republic of Croatia, in its own right and as parens patriae for its
                             citizens, reparations for damages to persons and property, as well as to
                             the Croatian economy and environment caused by the foregoing viola-
                             tions of international law in a sum to be determined by the Court. The
                             Republic of Croatia reserves the right to introduce to the Court at a
                             future date a precise evaluation of the damages caused by the Federal
                             Republic of Yugoslavia.”

                                                                                25

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                               application of genocide convention (judgment)                         25

                      50. In the written proceedings, the following submissions were presented by
                    the Parties :
                    On behalf of the Government of Croatia,
                    in the Memorial :
                           “On the basis of the facts and legal arguments presented in this Memorial,
                        the Applicant, the Republic of Croatia, respectfully requests the Interna-
                        tional Court of Justice to adjudge and declare :
                           1. That the Respondent, the Federal Republic of Yugoslavia, is respon-
                        sible for violations of the Convention on the Prevention and Punishment of
                        the Crime of Genocide :
                        (a) in that persons for whose conduct it is responsible committed genocide
                            on the territory of the Republic of Croatia, including in particular
                            against members of the Croat national or ethnical group on that terri-
                            tory, by
                            — killing members of the group ;
                            — causing deliberate bodily or mental harm to members of the group ;

                            — deliberately inflicting on the group conditions of life calculated to
                                bring about its physical destruction in whole or in part ;
                            — imposing measures intended to prevent births within the group,

                        with the intent to destroy that group in whole or in part, contrary to Arti-
                        cle II of the Convention ;
                        (b) in that persons for whose conduct it is responsible conspired to commit
                            the acts of genocide referred to in paragraph (a), were complicit in
                            respect of those acts, attempted to commit further such acts of genocide
                            and incited others to commit such acts, contrary to Article III of the
                            Convention ;

                        (c) in that, aware that the acts of genocide referred to in paragraph (a)
                            were being or would be committed, it failed to take any steps to prevent
                            those acts, contrary to Article I of the Convention ;
                        (d) in that it has failed to bring to trial persons within its jurisdiction who
                            are suspected on probable grounds of involvement in the acts of geno-
                            cide referred to in paragraph (a), or in the other acts referred to in
                            paragraph (b), and is thus in continuing breach of Articles I and IV of
                            the Convention.
                          2. That as a consequence of its responsibility for these breaches of the
                        Convention, the Respondent, the Federal Republic of Yugoslavia, is under
                        the following obligations :
                        (a) to take immediate and effective steps to submit to trial before the appro-
                            priate judicial authority, those citizens or other persons within its juris-
                            diction who are suspected on probable grounds of having committed
                            acts of genocide as referred to in paragraph (1) (a), or any of the other
                            acts referred to in paragraph (1) (b), in particular Slobodan Milošević,
                            the former President of the Federal Republic of Yugoslavia, and to

                                                                                26

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                                application of genocide convention (judgment)                       26

                             ensure that those persons, if convicted, are duly punished for their
                             crimes ;
                         (b) to provide forthwith to the Applicant all information within its posses-
                             sion or control as to the whereabouts of Croatian citizens who are
                             missing as a result of the genocidal acts for which it is responsible, and
                             generally to co-operate with the authorities of the Republic of Croatia
                             to jointly ascertain the whereabouts of the said missing persons or their
                             remains ;
                         (c) forthwith to return to the Applicant any items of cultural property
                             within its jurisdiction or control which were seized in the course of the
                             genocidal acts for which it is responsible ; and
                         (d) to make reparation to the Applicant, in its own right and as parens
                             patriae for its citizens, for all damage and other loss or harm to person
                             or property or to the economy of Croatia caused by the foregoing vio-
                             lations of international law, in a sum to be determined by the Court in
                             a subsequent phase of the proceedings in this case. The Republic of
                             Croatia reserves the right to introduce to the Court a precise evaluation
                             of the damages caused by the acts for which the Federal Republic of
                             Yugoslavia is held responsible.

                           The Republic of Croatia reserves the right to supplement or amend these
                         submissions as necessary.”
                    in the Reply :
                           “On the basis of the facts and legal arguments presented in its Memorial
                         and in this Reply, the Applicant respectfully requests the International
                         Court of Justice to adjudge and declare :
                            1. That it rejects in its entirety the first submission of the Respondent,
                         as to the inadmissibility of certain claims raised by the Applicant.

                           2. That the Respondent is responsible for violations of the Convention
                         on the Prevention and Punishment of the Crime of Genocide :
                         (a) in that persons for whose conduct it is responsible committed genocide
                             on the territory of the Republic of Croatia against members of the
                             Croat national or ethnical group on that territory, by

                              — killing members of the group ;
                              — causing deliberate bodily or mental harm to members of the group ;

                              — deliberately inflicting on the group conditions of life calculated to
                                bring about its physical destruction in whole or in part ;
                              — imposing measures intended to prevent births within the group,

                         with the intent to destroy that group in whole or in part, contrary to Arti-
                         cle II of the Convention ;
                         (b) in that persons for whose conduct it is responsible conspired to commit
                             the acts of genocide referred to in paragraph (a), were complicit in
                             respect of those acts, attempted to commit further such acts of genocide

                                                                                27

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                                application of genocide convention (judgment)                          27

                             and incited others to commit such acts, contrary to Article III of the
                             Convention ;
                         (c) in that, aware that the acts of genocide referred to in paragraph (a)
                             were being or would be committed, it failed to take any steps to prevent
                             those acts, contrary to Article I of the Convention ;
                         (d) in that it has failed to bring to trial persons within its jurisdiction who
                             are suspected on probable grounds of involvement in the acts of geno-
                             cide referred to in paragraph (a), or in the other acts referred to in
                             paragraph (b), and is thus in continuing breach of Articles I and IV of
                             the Convention.
                           3. That as a consequence of its responsibility for these breaches of the
                         Convention, the Respondent is under the following obligations :
                         (a) to take immediate and effective steps to submit to trial before the appro-
                             priate judicial authority, those citizens or other persons within its juris-
                             diction who are suspected on probable grounds of having committed
                             acts of genocide as referred to in paragraph (1) (a), or any of the other
                             acts referred to in paragraph (1) (b), and to ensure that those persons,
                             if convicted, are duly punished for their crimes ;

                         (b) to provide forthwith to the Applicant all information within its posses-
                             sion or control as to the whereabouts of Croatian citizens who are
                             missing as a result of the genocidal acts for which it is responsible, and
                             generally to co-operate with the authorities of the Applicant to jointly
                             ascertain the whereabouts of the said missing persons or their remains ;

                         (c) forthwith to return to the Applicant any items of cultural property
                             within its jurisdiction or control which were seized in the course of the
                             genocidal acts for which it is responsible ; and
                         (d) to make reparation to the Applicant, in its own right and as parens
                             patriae for its citizens, for all damage and other loss or harm to person
                             or property or to the economy of Croatia caused by the foregoing vio-
                             lations of international law, in a sum to be determined by the Court in
                             a subsequent phase of the proceedings in this case. The Applicant
                             reserves the right to introduce to the Court a precise evaluation of the
                             damages caused by the acts for which the Respondent is held respon-
                             sible.
                            4. That, in relation to the counter‑claims put forward in the Counter‑
                         Memorial, it rejects in their entirety the fourth, fifth, sixth and seventh
                         submissions of the Respondent on the grounds that they are not founded
                         in fact or law.
                            The Applicant reserves the right to supplement or amend these submis-
                         sions as necessary.”
                    in the additional pleading filed on 30 August 2012 :
                            “On the basis of the facts and legal arguments presented in its Memorial,
                         its Reply and in this additional pleading, the Applicant respectfully requests
                         the International Court of Justice to adjudge and declare :
                             1. That, in relation to the counter‑claims put forward in the Rejoinder,
                         it rejects in their entirety the fourth, fifth, sixth, seventh and eighth submis-

                                                                                28

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                                application of genocide convention (judgment)                       28

                         sions of the Respondent on the grounds that they are not founded in fact
                         or law.
                            The Applicant reserves the right to supplement or amend these submis-
                         sions as necessary.”
                    On behalf of the Government of Serbia,
                    in the Counter‑Memorial :
                           “On the basis of the facts and legal arguments presented in this Counter‑
                         Memorial, the Republic of Serbia respectfully requests the International
                         Court of Justice to adjudge and declare :

                                                             I
                         1.   That the requests in paragraphs 1 (a), 1 (b), 1 (c), 1 (d), 2 (a), 2 (b),
                              2 (c) and 2 (d) of the Submissions of the Republic of Croatia as far
                              as they relate to acts and omissions, whatever their legal qualification,
                              that took place before 27 April 1992, i.e., prior to the date when Serbia
                              came into existence as a State, or alternatively, before 8 October 1991,
                              when neither the Republic of Croatia nor the Republic of Serbia existed
                              as independent States, are inadmissible.

                         2.   That the requests in paragraphs 1 (a), 1 (b), 1 (c), 1 (d), 2 (a), 2 (b),
                              2 (c) and 2 (d), of the Submissions of the Republic of Croatia relating
                              to the alleged violations of the obligations under the Convention on the
                              Prevention and Punishment of the Crime of Genocide after 27 April 1992
                              (alternatively, 8 October 1991) be rejected as lacking any basis either
                              in law or in fact.
                         3.   Alternatively, should the Court find that the requests relating to acts
                              and omissions that took place before 27 April 1992 (alternatively,
                              8 October 1991) are admissible, that the requests in paragraphs 1 (a),
                              1 (b), 1 (c), 1 (d), 2 (a), 2 (b), 2 (c) and 2 (d), of the Submissions
                              of the Republic of Croatia be rejected in their entirety as lacking any
                              basis either in law or in fact.

                                                             II
                         4.   That the Republic of Croatia has violated its obligations under the
                              Convention on the Prevention and Punishment of the Crime of Geno-
                              cide by committing, during and after the Operation Storm in
                              August 1995, the following acts with intent to destroy as such the part
                              of the Serb national and ethnical group living in the Krajina Region
                              (UN Protected Areas North and South) in Croatia :
                              — killing members of the group,
                              — causing serious bodily or mental harm to members of the group,
                                and
                              — deliberately inflicting on the group conditions of life calculated to
                                bring about its partial physical destruction.
                         5.   Alternatively, that the Republic of Croatia has violated its obligations
                              under the Convention on the Prevention and Punishment of the Crime
                              of Genocide by conspiring to commit genocide against the part of the

                                                                                29

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                                application of genocide convention (judgment)                       29

                              Serb national and ethnical group living in the Krajina Region (UN
                              Protected Areas North and South) in Croatia.

                         6.   As a subsidiary finding, that the Republic of Croatia has violated its
                              obligations under the Convention on the Prevention and Punishment
                              of the Crime of Genocide by having failed and by still failing to punish
                              acts of genocide that have been committed against the part of the Serb
                              national and ethnical group living in the Krajina Region (UN Protected
                              Areas North and South) in Croatia.
                         7.   That the violations of international law set out in paragraphs 4, 5 and 6
                              above constitute wrongful acts attributable to the Republic of Croatia
                              which entail its international responsibility, and, accordingly,

                              (1) that the Republic of Croatia shall immediately take effective steps
                                   to ensure full compliance with its obligation to punish acts of gen-
                                   ocide as defined by Article II of the Convention, or any other acts
                                   proscribed by Article III of the Convention committed on its terri-
                                   tory before, during and after Operation Storm ; and
                              (2) that the Republic of Croatia shall redress the consequences of its
                                  international wrongful acts, that is, in particular :

                                 (a) pay full compensation to the members of the Serb national and
                                     ethnic group from the Republic of Croatia for all damages and
                                     losses caused by the acts of genocide ;
                                 (b) establish all necessary legal conditions and secure environment
                                     for the safe and free return of the members of the Serb national
                                     and ethnical group to their homes in the Republic of Croatia,
                                     and to ensure conditions of their peaceful and normal life
                                     including full respect for their national and human rights ;

                                 (c) amend its law on public holidays, remembrance days and
                                     non‑working days, by way of removing the ‘Day of Victory and
                                     Homeland Gratitude’ and the ‘Day of Croatian Defenders’,
                                     celebrated on the fifth of August, as a day of triumph in the
                                     genocidal Operation Storm, from its list of public holidays.
                           The Republic of Serbia reserves its right to supplement or amend these
                         submissions in the light of further pleadings.”

                    in the Rejoinder :
                           “On the basis of the facts and legal arguments presented in the Counter‑
                         Memorial and this Rejoinder, the Republic of Serbia respectfully requests
                         the Court to adjudge and declare :

                                                             I
                         1.   That the requests in paragraphs 2 (a), 2 (b), 2 (c), 2 (d), 3 (a), 3 (b),
                              3 (c) and 3 (d) of the Submissions of the Republic of Croatia as far
                              as they relate to acts and omissions, whatever their legal qualification,

                                                                                30

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                           application of genocide convention (judgment)                        30

                         that took place before 27 April 1992, i.e., prior to the date when Serbia
                         came into existence as a State, are inadmissible.

                    2.   That the requests in paragraphs 2 (a), 2 (b), 2 (c), 2 (d), 3 (a), 3 (b),
                         3 (c) and 3 (d) of the Submissions of the Republic of Croatia relating
                         to the alleged violations of the obligations under the Convention on the
                         Prevention and Punishment of the Crime of Genocide after 27 April 1992
                         be rejected as lacking any basis either in law or in fact.

                    3.   Alternatively, should the Court find that the requests relating to acts
                         and omissions that took place before 27 April 1992 are admissible, that
                         the requests in paragraphs 2 (a), 2 (b), 2 (c), 2 (d), 3 (a), 3 (b), 3 (c)
                         and 3 (d) of the Submissions of the Republic of Croatia be rejected in
                         their entirety as lacking any basis either in law or in fact.

                                                       II
                    4.   That the Republic of Croatia has violated its obligations under the
                         Convention on the Prevention and Punishment of the Crime of Geno-
                         cide by committing, during and after Operation Storm in 1995, the
                         following acts with intent to destroy the Serb national and ethnical
                         group in Croatia, in its substantial part living in the Krajina Region
                         (UN Protected Areas North and South), as such :

                         — killing members of the group ;
                         — causing serious bodily or mental harm to members of the group ;
                           and
                         — deliberately inflicting on the group conditions of life calculated to
                           bring about its physical destruction.
                    5.   Alternatively, that the Republic of Croatia has violated its obligations
                         under the Convention on the Prevention and Punishment of the Crime
                         of Genocide by conspiring to commit genocide against the Serb national
                         and ethnical group in Croatia, in its substantial part living in the Kra-
                         jina Region, as such.
                    6.   As a subsidiary finding, that the Republic of Croatia has violated its
                         obligations under the Convention on the Prevention and Punishment
                         of the Crime of Genocide by having failed and by still failing to punish
                         acts of genocide that have been committed against the Serb national
                         and ethnical group in Croatia, in its substantial part living in the Kra-
                         jina Region, as such.
                    7.   That the violations of international law set out in paragraphs 4, 5 and 6
                         above constitute wrongful acts attributable to the Republic of Croatia
                         which entail its international responsibility, and, accordingly,

                         (1) that the Republic of Croatia shall immediately take effective steps
                             to ensure full compliance with its obligation to punish acts of gen-
                             ocide as defined by Article II of the Convention, or any other acts
                             proscribed by Article III of the Convention committed on its terri-
                             tory during and after Operation Storm ; and

                                                                                31

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                                application of genocide convention (judgment)                        31

                              (2) that the Republic of Croatia shall redress the consequences of its
                                  international wrongful acts, that is, in particular :

                                 (a) pay full compensation to the members of the Serb national and
                                     ethnical group from the Republic of Croatia for all damages
                                     and losses caused by the acts of genocide ;
                                 (b) establish all necessary legal conditions and secure environment
                                     for the safe and free return of the members of the Serb national
                                     and ethnical group to their homes in the Republic of Croatia,
                                     and to ensure conditions of their peaceful and normal life
                                     including full respect for their national and human rights ;

                                 (c) amend its law on public holidays, remembrance days and
                                     non‑working days, by way of removing the ‘Day of Victory and
                                     Homeland Gratitude’ and the ‘Day of Croatian Defenders’,
                                     celebrated on the fifth of August, as a day of triumph in the
                                     genocidal Operation Storm, from its list of public holidays.

                                                           III
                         8.   That the requests in paragraphs 1 and 4 of the Submissions of the
                              Republic of Croatia concerning the objections to the counter‑claim be
                              rejected as lacking any basis either in law or in fact.

                           The Republic of Serbia reserves its right to supplement or amend these
                         submissions in the further proceedings.”
                      51. At the oral proceedings, the following final submissions were presented
                    by the Parties :
                    On behalf of the Government of Croatia,
                    at the hearing of 21 March 2014, at 10 a.m., with respect to Croatia’s claim :
                            “On the basis of the facts and legal arguments presented by the Applicant,
                         it respectfully requests the International Court of Justice to adjudge and
                         declare :
                           1. That it has jurisdiction over all the claims raised by the Applicant, and
                         there exists no bar to admissibility in respect of any of them.
                           2. That the Respondent is responsible for violations of the Convention
                         on the Prevention and Punishment of the Crime of Genocide :
                         (a) in that persons for whose conduct it is responsible committed genocide
                             on the territory of the Republic of Croatia against members of the
                             Croat ethnic group on that territory, by :

                              — killing members of the group ;
                              — causing deliberate bodily or mental harm to members of the group ;

                              — deliberately inflicting on the group conditions of life calculated to
                                bring about its physical destruction in whole or in part ;

                                                                                32

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                                application of genocide convention (judgment)                         32

                             — imposing measures intended to prevent births within the group,
                               with the intent to destroy that group in whole or in part, contrary
                               to Article II of the Convention ;
                         (b) in that persons for whose conduct it is responsible conspired to commit
                             the acts of genocide referred to in paragraph (a), were complicit in
                             respect of those acts, attempted to commit further such acts of genocide
                             and incited others to commit such acts, contrary to Article III of the
                             Convention ;

                         (c) in that, aware that the acts of genocide referred to in paragraph (a)
                             were being or would be committed, it failed to take any steps to prevent
                             those acts, contrary to Article I of the Convention ;
                         (d) in that it has failed to bring to trial persons within its jurisdiction who
                             are suspected on probable grounds of involvement in the acts of geno-
                             cide referred to in paragraph (a), or in the other acts referred to in
                             paragraph (b), and is thus in continuing breach of Articles I and IV of
                             the Convention ;
                         (e) in that it has failed to conduct an effective investigation into the fate of
                             Croatian citizens who are missing as a result of the genocidal acts
                             referred to in paragraphs (a) and (b), and is thus in continuing breach
                             of Articles I and IV of the Convention.
                           3. That as a consequence of its responsibility for these breaches of the
                         Convention, the Respondent is under the following obligations :
                         (a) to take immediate and effective steps to submit to trial before the appro-
                             priate judicial authority, those citizens or other persons within its juris-
                             diction including but not limited to the leadership of the JNA during
                             the relevant time period who are suspected on probable grounds of
                             having committed acts of genocide as referred to in paragraph (2) (a),
                             or any of the other acts referred to in paragraph (2) (b), and to ensure
                             that those persons, if convicted, are duly punished for their crimes ;
                         (b) to provide forthwith to the Applicant all information within its posses-
                             sion or control as to the whereabouts of Croatian citizens who are
                             missing as a result of the genocidal acts for which it is responsible, to
                             investigate and generally to co‑operate with the authorities of the
                             Applicant to jointly ascertain the whereabouts of the said missing per-
                             sons or their remains ;
                         (c) forthwith to return to the Applicant all remaining items of cultural
                             property within its jurisdiction or control which were seized in the
                             course of the genocidal acts for which it is responsible ; and
                         (d) to make reparation to the Applicant, in its own right and as
                             parens patriae for its citizens, for all damage and other loss or harm to
                             person or property or to the economy of Croatia caused by the fore
                             going violations of international law, in a sum to be determined by the
                             Court in a subsequent phase of the proceedings in this case. The Appli-
                             cant reserves the right to introduce to the Court a precise evaluation of
                             the damages caused by the acts for which the Respondent is held
                             responsible.”
                    at the hearing of 1 April 2014, at 10 a.m., in respect of Serbia’s counter‑claim :

                                                                                33

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                               application of genocide convention (judgment)                          33

                           “On the basis of the facts and legal arguments presented by the Applicant,
                        it respectfully requests the International Court of Justice to adjudge and
                        declare :
                           That, in relation to the counter‑claims put forward in the Counter‑
                        Memorial, the Rejoinder and during these proceedings, it rejects in their
                        entirety the sixth, the seventh, the eighth and the ninth submissions of the
                        Respondent on the grounds that they are not founded in fact or law.”

                    On behalf of the Government of Serbia,
                    at the hearing of 28 March 2014, at 3 p.m., in respect of Croatia’s claim and
                    Serbia’s counter‑claim :
                           “On the basis of the facts and legal arguments presented in its written
                        and oral pleadings, the Republic of Serbia respectfully requests the Court
                        to adjudge and declare :

                                                             I
                           1. That the Court lacks jurisdiction to entertain the requests in para-
                        graphs 2 (a), 2 (b), 2 (c), 2 (d), 2 (e), 3 (a), 3 (b), 3 (c) and 3 (d) of the
                        Submissions of the Republic of Croatia as far as they relate to acts and
                        omissions, whatever their legal qualification, that took place before
                        27 April 1992, i.e., prior to the date when Serbia came into existence as a
                        State and became bound by the Genocide Convention.
                           2. In the alternative that the requests in paragraphs 2 (a), 2 (b), 2 (c),
                        2 (d), 2 (e), 3 (a), 3 (b), 3 (c) and 3 (d) of the Submissions of the Repub-
                        lic of Croatia as far as they relate to acts and omissions, whatever their legal
                        qualification, that took place before 27 April 1992, i.e., prior to the date
                        when Serbia came into existence as a State and became bound by the Gen-
                        ocide Convention, are inadmissible.
                           3. That the requests in paragraphs 2 (a), 2 (b), 2 (c), 2 (d), 2 (e), 3 (a),
                        3 (b), 3 (c) and 3 (d) of the Submissions of the Republic of Croatia relat-
                        ing to the alleged violations of the obligations under the Convention on the
                        Prevention and Punishment of the Crime of Genocide after 27 April 1992
                        be rejected as lacking any basis either in law or in fact.

                           4. In the further alternative that the requests in paragraphs 2 (a), 2 (b),
                        2 (c), 2 (d), 2 (e), 3 (a), 3 (b), 3 (c) and 3 (d) of the Submissions of the
                        Republic of Croatia as far as they relate to acts and omissions, whatever
                        their legal qualification, that took place before 8 October 1991, i.e., prior
                        to the date when Croatia came into existence as a State and became bound
                        by the Genocide Convention, are inadmissible.

                           5. In the final alternative, should the Court find that it has jurisdiction
                        concerning the requests relating to acts and omissions that took place before
                        27 April 1992 and that they are admissible, respectively that they are admis-
                        sible insofar as they relate to acts and omissions that took place before 8 Octo-
                        ber 1991, that the requests in paragraphs 2 (a), 2 (b), 2 (c), 2 (d), 2 (e),
                        3 (a), 3 (b), 3 (c) and 3 (d) of the Submissions of the Republic of Croatia
                        be rejected in their entirety as lacking any basis either in law or in fact.

                                                                                34

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                           application of genocide convention (judgment)                        34

                                                       II

                       6. That the Republic of Croatia has violated its obligations under Arti-
                    cle II of the Convention on the Prevention and Punishment of the Crime of
                    Genocide by committing, during and after Operation Storm in 1995, the
                    following acts with intent to destroy the Serb national and ethnical group
                    in Croatia as such, in its substantial part living in the Krajina Region :

                    — killing members of the group,
                    — causing serious bodily or mental harm to members of the group, and

                    — deliberately inflicting on the group conditions of life calculated to bring
                      about its physical destruction.
                       7. Alternatively, that the Republic of Croatia has violated its obligations
                    under Article III (b), (c), (d) and (e) of the Convention on the Prevention
                    and Punishment of the Crime of Genocide through the acts of conspiracy,
                    direct and public incitement and attempt to commit genocide, as well as
                    complicity in genocide, against the Serb national and ethnical group in Cro-
                    atia as such, in its substantial part living in the Krajina Region.

                       8. As a subsidiary finding, that the Republic of Croatia has violated its
                    obligations under the Convention on the Prevention and Punishment of the
                    Crime of Genocide by having failed and by still failing to punish acts of
                    genocide that have been committed against the Serb national and ethnical
                    group in Croatia as such, in its substantial part living in the Krajina Region.

                       9. That the violations of international law set out in paragraphs 6, 7 and
                    8 of these Submissions constitute wrongful acts attributable to the Republic
                    of Croatia which entail its international responsibility, and, accordingly,

                    (1) That the Republic of Croatia shall immediately take effective steps to
                        ensure full compliance with its obligation to punish acts of genocide as
                        defined by Article II of the Convention, or any other acts enumerated
                        in Article III of the Convention committed on its territory during and
                        after Operation Storm ;
                    (2) That the Republic of Croatia shall immediately amend its law on public
                        holidays, remembrance days and non‑working days, by way of removing
                        the ‘Day of Victory and Homeland Gratitude’ and the ‘Day of Croatian
                        Defenders’, celebrated on the fifth of August, as a day of victory in the
                        genocidal Operation Storm, from its list of public holidays ; and
                    (3) That the Republic of Croatia shall redress the consequences of its inter-
                        national wrongful acts, that is, in particular :
                        (a) Pay full compensation to the members of the Serb national and
                            ethnical group from the Republic of Croatia for all damages and
                            losses caused by the acts of genocide, in a sum and in a procedure
                            to be determined by the Court in a subsequent phase of this case ;
                            and
                        (b) Establish all necessary legal conditions and secure environment for
                            the safe and free return of the members of the Serb national and

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                               application of genocide convention (judgment)                   35

                                ethnical group to their homes in the Republic of Croatia, and to
                                ensure conditions of their peaceful and normal life including full
                                respect for their national and human rights.”

                                                           *
                                                       *       *

                                                 I. Background

                      52. In these proceedings, Croatia contends that Serbia is responsible
                    for breaches of the Genocide Convention committed in Croatia between
                    1991 and 1995. In its counter‑claim, Serbia contends that Croatia is itself
                    responsible for breaches of the Convention committed in 1995 in the
                    “Republika Srpska Krajina”, an entity established in late 1991 (for fur-
                    ther details, see paragraphs 62‑70 below). The Court will briefly set out
                    the factual and historical background to the present proceedings, i.e., (a)
                    the break‑up of the Socialist Federal Republic of Yugoslavia in general
                    and (b) the situation in Croatia in particular.

                        A. The Break‑up of the Socialist Federal Republic of Yugoslavia
                                      and the Emergence of New States
                      53. Until the start of the 1990s, the Socialist Federal Republic of
                    Yugoslavia (“SFRY”) consisted of the Republics of Bosnia and Herze-
                    govina, Croatia, Macedonia, Montenegro, Serbia and Slovenia ; the
                    Republic of Serbia itself included two autonomous provinces ; Vojvodina
                    and Kosovo.
                      54. Following the death of President Tito, which occurred on
                    4 May 1980, the SFRY was confronted with an economic crisis lasting
                    almost ten years and growing tensions between its different ethnic and
                    national groups. Towards the end of the 1980s and at the start of the
                    1990s, certain republics sought greater powers within the federation, and,
                    subsequently, independence from the SFRY.
                      55. Croatia and Slovenia declared themselves independent from the
                    SFRY on 25 June 1991, although their declarations did not take effect
                    until 8 October 1991. For its part, Macedonia proclaimed its indepen-
                    dence on 17 September 1991, and Bosnia and Herzegovina followed suit
                    on 6 March 1992. On 22 May 1992, Croatia, Slovenia, and Bosnia and
                    Herzegovina were admitted as Members of the United Nations, as was
                    the former Yugoslav Republic of Macedonia on 8 April 1993.

                      56. On 27 April 1992, “the participants of the Joint Session of the
                    SFRY Assembly, the National Assembly of the Republic of Serbia and

                                                                                36

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                                  application of genocide convention (judgment)                                                      36

                    the Assembly of the Republic of Montenegro” adopted a declaration stat-
                    ing in particular :
                           “1. The Federal Republic of Yugoslavia, continuing the State,
                        international legal and political personality of the Socialist Federal
                        Republic of Yugoslavia, shall strictly abide by all the commitments
                        that the SFR of Yugoslavia assumed internationally,

                        �����������������������������������������������������������������������������������������������������������������
                            Remaining bound by all obligations to international organiza
                        tions and institutions whose member it is . . .” (United Nations
                        doc. A/46/915, Ann. II.)
                      57. On the same date, the Permanent Mission of Yugoslavia to the
                    United Nations sent a Note to the Secretary‑General, stating, inter alia,
                    that
                        “[s]trictly respecting the continuity of the international personality of
                        Yugoslavia, the Federal Republic of Yugoslavia shall continue to ful-
                        fil all the rights conferred to, and obligations assumed by, the Social-
                        ist Federal Republic of Yugoslavia in international relations,
                        including its membership in all international organizations and par-
                        ticipation in international treaties ratified or acceded to by Yugosla-
                        via” (see also paragraph 76 below).

                       58. This claim by the FRY that it continued the legal personality of the
                    SFRY was debated at length within the international community (in this
                    regard, see Application for Revision of the Judgment of 11 July 1996 in the
                    Case concerning Application of the Convention on the Prevention and
                    Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugo-
                    slavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina),
                    Judgment, I.C.J. Reports 2003, pp. 15‑23, paras. 28‑48 ; Legality of Use of
                    Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judg‑
                    ment, I.C.J. Reports 2004 (I), pp. 303‑309, paras. 58‑74 ; Application of
                    the Convention on the Prevention and Punishment of the Crime of Genocide
                    (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment,
                    I.C.J. Reports 2007 (I), pp. 80‑83, paras. 91‑97 [“the 2007 Judgment”] ;
                    2008 Judgment, I.C.J. Reports 2008, pp. 426‑427, paras. 45‑49). As has
                    been noted in the Judgments of the Court cited above, the Security Coun-
                    cil, the General Assembly and several States rejected the claim that the
                    FRY continued automatically the membership of the SFRY in the United
                    Nations ; the FRY nevertheless maintained this claim for several years. It
                    was not until 27 October 2000 that Mr. Koštunica, the newly-elected
                    President of the FRY, sent a letter to the Secretary‑General requesting
                    that the FRY be admitted to membership in the United Nations. On
                    1 November 2000, the General Assembly, by resolution 55/12, “[h]aving

                                                                                37

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                               application of genocide convention (judgment)                 37

                    received the recommendation of the Security Council of 31 October 2000”
                    and “[h]aving considered the application for membership of the Federal
                    Republic of Yugoslavia”, decided to “admit the Federal Republic of
                    Yugoslavia to membership in the United Nations”.
                       59. On 4 February 2003, the FRY officially changed its name, becom-
                    ing “Serbia and Montenegro”. Following a referendum of 21 May 2006, in
                    accordance with the Constitutional Charter of Serbia and Montenegro,
                    the Republic of Montenegro declared its independence on 3 June 2006. By
                    a letter dated 3 June 2006, Serbia informed the Secretary‑General of the
                    United Nations that, as provided for in Article 60 of the Constitutional
                    Charter of Serbia and Montenegro, the latter’s membership in the United
                    Nations would be continued by the Republic of Serbia. Montenegro was
                    admitted into the United Nations as a new member on 28 June 2006. In its
                    Judgment of 18 November 2008 on preliminary objections, the Court
                    found that Montenegro was not a party to the present proceedings, and
                    that Serbia alone remained the Respondent in the case (I.C.J. Reports 2008,
                    pp. 421‑423, paras. 23‑34 ; see paragraph 8 above).

                                           B. The Situation in Croatia
                      60. The present case mainly concerns events which took place between
                    1991 and 1995 in the territory of the Republic of Croatia as it had existed
                    within the SFRY. The Court will focus now on the background to those
                    events.

                       61. First, it should be noted that, according to the official census con-
                    ducted by the Institute for Statistics of the Republic of Croatia at the end
                    of March 1991, the majority of the inhabitants of Croatia (some
                    78 per cent) were of Croat origin. A number of ethnic and national
                    minorities were also represented ; in particular, some 12 per cent of the
                    population was of Serb origin. A significant part of that Serb minority
                    lived close to the Republics of Bosnia and Herzegovina and Serbia. While
                    the population in these frontier areas was a mixed one — consisting of
                    Croats and Serbs — there was a majority of Serbs in certain localities.
                    Towns and villages with Serb majorities existed in close proximity to
                    towns and villages with Croat majorities.
                       62. In political terms, tensions between, on the one hand, the Govern-
                    ment of the Republic of Croatia and, on the other, the Serbs living in
                    Croatia and opposed to its independence, increased at the start of the
                    1990s. On 1 July 1990, elected representatives of the Serb Democratic
                    Party in Croatia (SDS) formed the “Union of Municipalities of the North-
                    ern Dalmatia and Lika”. On 25 July 1990, the Constitution of the Repub-
                    lic of Croatia was amended ; in particular, a new flag and coat of arms
                    were adopted which, according to Serbia, was perceived by the Serb
                    minority as a sign of hostility towards them. On the same day, a Serb
                    assembly and a “Serb National Council” (the executive organ of the
                    assembly) were established at Srb, north of Knin ; they proclaimed them-

                                                                                38

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                               application of genocide convention (judgment)                 38

                    selves to be the political representatives of the Serb population of Croatia
                    and declared the sovereignty and autonomy of the Serbs in Croatia. The
                    “Council” then announced that a referendum would be held on the auto
                    nomy of the Croatian Serbs. In August 1990, the Croatian Government
                    attempted to oppose this referendum ; the Serb minority responded by
                    erecting roadblocks. The referendum took place between 19 August and
                    2 September 1990 ; a substantial majority voted in favour of autonomy.
                       63. On 21 December 1990, Serbs in the municipalities of northern Dal-
                    matia and Lika proclaimed the “Serb Autonomous Region of Krajina”
                    (“SAO Krajina”). Two other “Serb autonomous regions” were estab-
                    lished later : the “SAO Slavonia, Baranja and Western Srem” (“SAO
                    SBWS”) in February 1991, and the “SAO Western Slavonia” in August
                    of that year.
                       64. On 22 December 1990, the Croatian Parliament adopted a new
                    Constitution. According to Serbia, the Croatian Serbs considered that the
                    adoption of this new Constitution deprived them of certain basic rights
                    and removed their status as a constituent nation of Croatia.
                       65. On 4 January 1991, the SAO Krajina established its own internal
                    affairs secretariat and police and State security services.

                       66. In spring 1991, clashes broke out between the Croatian armed
                    forces and those of the SAO Krajina and other armed groups. The Yugo-
                    slav National army (“JNA”) intervened — officially to separate the pro-
                    tagonists, but, according to Croatia, in support of the Krajina Serbs.

                       67. In a referendum organized on 12 May 1991 by the SAO Krajina, a
                    majority of Serbs voted in favour of attaching the region to Serbia and
                    staying in the SFRY. One week later, on 19 May 1991, Croatian voters,
                    asked to pronounce by referendum on Croatia’s independence from the
                    SFRY, overwhelmingly approved it.

                       68. As explained above (see paragraph 55), Croatia declared its inde-
                    pendence from the SFRY on 25 June 1991, and that declaration took
                    effect on 8 October 1991.
                       69. By the summer of 1991, an armed conflict had broken out in Croa-
                    tia, in the course of which the violations of the Genocide Convention
                    alleged by Croatia in this case are claimed to have been committed (see
                    paragraphs 200‑442 below). At least from September 1991, the JNA —
                    which, according to Croatia, was by then controlled by the Government
                    of the Republic of Serbia — intervened in the fighting against the Croa-
                    tian Government forces. By late 1991, the JNA and Serb forces (see para-
                    graph 204 below) controlled around one‑third of Croatian territory within
                    its boundaries in the SFRY (in the regions of Eastern Slavonia, Western
                    Slavonia, Banovina/Banija, Kordun, Lika and Dalmatia). These regions,
                    as well as several towns and villages referred to in the present Judgment,
                    are illustrated on the following sketch‑map.

                                                                                39

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                               application of genocide convention (judgment)                39

                       70. On 19 December 1991, the Serbs of the SAO Krajina (which then
                    comprised territories in Banovina/Banija, Kordun, Lika and Dalmatia)
                    proclaimed the establishment of the “Republika Srpska Krajina”
                    (“RSK”). Two months later, the SAO Western Slavonia and the SAO
                    SBWS joined the RSK.
                       71. Negotiations in late 1991 and early 1992, backed by the interna-
                    tional community and involving, inter alia, representatives of Croatia,
                    Serbia and the SFRY, resulted in the Vance plan (after Cyrus Vance, the
                    United Nations Secretary‑General’s Special Envoy for Yugoslavia) and
                    the deployment of the United Nations Protection Force (“UNPRO-
                    FOR”). The Vance plan provided for a ceasefire, demilitarization of those
                    parts of Croatia under the control of the Serb minority and SFRY forces,
                    the return of refugees and the creation of conditions favourable to a per-
                    manent political settlement of the conflict. UNPROFOR — which was
                    deployed in spring 1992 in three areas protected by the United Nations
                    (the UNPAs of Eastern Slavonia, Western Slavonia and Krajina) — was
                    divided into four operational sectors : East (Eastern Slavonia), West
                    (Western Slavonia), North and South (these two latter sectors covered the
                    Krajina UNPA).

                       72. The objectives of the Vance plan and of UNPROFOR were never
                     fully achieved : between 1992 and the spring of 1995, the RSK was not
                     demilitarized, certain military operations were conducted by both parties
                    to the conflict, and attempts to achieve a peaceful settlement failed.
                       73. In the spring and summer of 1995, Croatia succeeded in re‑
                    establishing control over the greater part of the RSK following a series of
                    military operations. Thus it recovered Western Slavonia in May through
                     Operation Flash, and the Krajina in August through Operation Storm,
                     during which the facts described in the counter‑claim allegedly occurred
                    (see paragraphs 443‑522 below). Following the conclusion of the Erdut
                    Agreement on 12 November 1995, Eastern Slavonia was gradually reinte-
                    grated into Croatia between 1996 and 1998.

                                                          *
                                                      *       *

                                       II. Jurisdiction and Admissibility

                                               A. Croatia’s Claim
                    (1) Issues of jurisdiction and admissibility which remain to be determined
                         following the 2008 Judgment
                      74. Serbia has raised a number of objections to the jurisdiction of the
                    Court and to the admissibility of Croatia’s claim. In its 2008 Judgment,

                                                                                40

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                                                                                - 36 -

                                     application of genocide convention (judgment)                                                                     40

                               Regions and Selected Localities Referred to by the Parties

                       AUS T R I A

                                                                                H U N G A RY

                            S LOV E N IA

                                                                               ZAGREB
                                                                                Đulovac                                            S E R B I A
                                                                                C R OATIA                  Voćin            EASTERN
                                                                                S L A V O N I A Dalj
                                                                                Kusonje
                                                                                Vukovar
                                                                          BANOVINA/BANIJA              WESTERN                      Bogdanovci
                                                                       Joševica     Hrvatska           SL AVONIA                                 Lovas
                                                                                Dubica                                                  Berak
                                                                                Tovarnik Bapska
                                                         KORDUN
                                                                                Sremska
                                                                                Mitrovica
                                                   Saborsko           Lipovača
                                                         Poljanak

                                                               LIKA

                                                                         Gračac
                                                                     Obrovac                               B O S N I A
                                                         Škabrnja                                             A N D
                                                                       Bruška
                                                                                H E R Z E G OV I N A
                                                                    Benkovac        Knin

                                                                                D A L M AT I A

                          A D R I A T I C                  S E A

                                                                                MO N T E N E G R O

                                                                                Dubrovnik
                               This sketch-map has been prepared for illustrative purposes only
                                0                   50                100             150 km
             I TA LY                 Universal Transverse Mercator projection, zone 33N
                                                       WGS84 Datum

                                                                                41

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                                application of genocide convention (judgment)                    41

                    the Court rejected Serbia’s first and third preliminary objections but con-
                    cluded that Serbia’s second preliminary objection did not possess, in the
                    circumstances of the case, an exclusively preliminary character and so
                    reserved decision thereon to the present phase of the proceedings
                    (I.C.J. Reports 2008, p. 460, para. 130 and p. 466, para. 146 (point 4)).
                    Before turning to address Serbia’s second objection, the Court will first
                    recall certain observations that it made in its 2008 Judgment.
                       75. In its 2008 Judgment, the Court dismissed Serbia’s first preliminary
                    objection in so far as it related to its capacity to participate in the present
                    proceedings (ibid., p. 444, para. 91, and p. 466, para. 146 (point 1)).

                      76. The Court also dismissed Serbia’s first preliminary objection in so
                    far as it related to the jurisdiction of the Court ratione materiae. It referred
                    to the declaration made by the FRY on 27 April 1992 (the date on which
                    the FRY was proclaimed as a State), which stated that
                            “The Federal Republic of Yugoslavia, continuing the State, inter-
                         national legal and political personality of the Socialist Federal Repub-
                         lic of Yugoslavia, shall strictly abide by all the commitments that the
                         Socialist Federal Republic of Yugoslavia assumed internationally.

                            At the same time, it is ready to fully respect the rights and interests
                         of the Yugoslav Republics which declared independence. The recog-
                         nition of the newly-formed states will follow after all the outstanding
                         questions negotiated on within the Conference on Yugoslavia have
                         been settled.” (United Nations doc. A/46/915, Ann. II, quoted at
                         I.C.J. Reports 2008, pp. 446‑447, para. 98.)

                       The Court also referred to the Note sent that day by the Permanent
                    Mission of Yugoslavia to the United Nations Secretary‑General, which
                    stated that

                            “The Assembly of the Socialist Federal Republic of Yugoslavia, at
                         its session held on 27 April 1992, promulgated the Constitution of the
                         Federal Republic of Yugoslavia. Under the Constitution, on the basis
                         of the continuing personality of Yugoslavia and the legitimate deci-
                         sions by Serbia and Montenegro to continue to live together in Yugo-
                         slavia, the Socialist Federal Republic of Yugoslavia is transformed
                         into the Federal Republic of Yugoslavia, consisting of the Republic
                         of Serbia and the Republic of Montenegro.

                           Strictly respecting the continuity of the international personality of
                         the Socialist Federal Republic of Yugoslavia, the Federal Republic
                         of Yugoslavia shall continue to fulfil all the rights conferred to, and
                         obligations assumed by, the Socialist Federal Republic of Yugoslavia
                         in international relations, including its membership in all interna-

                                                                                42

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                               application of genocide convention (judgment)                      42

                        tional organizations and participation in international treaties ratified
                        or acceded to by Yugoslavia.” (United Nations doc. A/46/915, Ann. I,
                        quoted at I.C.J. Reports 2008, p. 447, para. 99.)

                       The Court pointed out that the FRY had thus “clearly expressed an
                    intention to be bound . . . by the obligations of the Genocide Conven-
                    tion” and concluded :
                           “In the particular context of the case, the Court is of the view that
                        the 1992 declaration must be considered as having had the effects of
                        a notification of succession to treaties, notwithstanding that its polit-
                        ical premise was different.” (I.C.J. Reports 2008, p. 451, para. 111.)

                       77. The Court considered, however, that it was not in a position to rule
                    upon Serbia’s objection to jurisdiction and admissibility ratione temporis.
                    This objection was that, in so far as Croatia’s claim was based on acts
                    and omissions alleged to have occurred before 27 April 1992, it fell out-
                    side the scope of Article IX of the Genocide Convention — and, accord-
                    ingly, outside the jurisdiction of the Court — because it concerned events
                    which preceded the date on which the FRY came into existence as a State
                    and thus became capable of being a party to the Genocide Convention
                    and that, in any event, that claim was inadmissible. With regard to this
                    objection, the Court stated that :
                           “In the view of the Court, the questions of jurisdiction and admissi-
                        bility raised by Serbia’s preliminary objection ratione temporis constitute
                        two inseparable issues in the present case. The first issue is that of the
                        Court’s jurisdiction to determine whether breaches of the Genocide
                        Convention were committed in the light of the facts that occurred prior
                        to the date on which the FRY came into existence as a separate State,
                        capable of being a party in its own right to the [Genocide] Convention ;
                        this may be regarded as a question of the applicability of the obligations
                        under the Genocide Convention to the FRY before 27 April 1992. The
                        second issue, that of admissibility of the claim in relation to those facts,
                        and involving questions of attribution, concerns the consequences to be
                        drawn with regard to the responsibility of the FRY for those same facts
                        under the general rules of State responsibility. In order to be in a position
                        to make any findings on each of these issues, the Court will need to have
                        more elements before it.” (Ibid., p. 460, para. 129.)

                       78. The jurisdiction of the Court, and the admissibility of Croatia’s
                    claim, have therefore been settled by the 2008 Judgment so far as that
                    claim relates to events alleged to have taken place as from 27 April 1992.
                    Both jurisdiction and admissibility remain, however, to be determined in
                    so far as the claim concerns events alleged to have occurred before that
                    date. On those questions, the Parties remain in disagreement.

                                                                                43

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                               application of genocide convention (judgment)                 43

                    (2) The positions of the Parties regarding jurisdiction and admissibility

                       79. With regard to the jurisdiction of the Court, Serbia maintains that
                    events said to have occurred before 27 April 1992 cannot give rise to a
                    dispute between itself and Croatia regarding the “interpretation, applica-
                    tion or fulfilment” of the Genocide Convention and thus cannot fall
                    within the scope of Article IX of the Convention. It maintains that a dis-
                    tinction has to be made between the obligations of the SFRY and those
                    of the FRY. While the SFRY was a party to the Genocide Convention
                    prior to 27 April 1992, it was only from that date that the FRY became a
                    party to it. Serbia refers to Article 28 of the Vienna Convention on the
                    Law of Treaties, which it maintains states a principle of customary inter-
                    national law. That Article provides :
                           “Unless a different intention appears from the treaty or is otherwise
                        established, its provisions do not bind a party in relation to any act
                        or fact which took place or any situation which ceased to exist before
                        the date of the entry into force of the treaty with respect to that
                        party.”
                       According to Serbia, since the substantive provisions of the Genocide
                    Convention cannot apply retroactively, events alleged to have occurred
                    before the FRY became a party to the Convention cannot engage the
                    responsibility of the FRY and, therefore, of Serbia.
                       80. With regard to the admissibility of Croatia’s claim, Serbia advances
                    two arguments. First, it maintains that events said to have occurred
                    before the FRY came into existence as a State cannot be attributed to the
                    FRY. In Serbia’s view, any claim against Serbia in respect of such events
                    must, therefore, be regarded as inadmissible. This argument is advanced
                    as an alternative to the argument regarding jurisdiction. Secondly, Serbia
                    contends, in the further alternative, that in so far as the claim relates to
                    events said to have occurred before 8 October 1991 — the date on which
                    Croatia came into existence as a State and became bound by the Geno-
                    cide Convention — it must be regarded as inadmissible.

                       81. Croatia responds that the Court has jurisdiction over the entirety
                    of its claim and that there is no bar to admissibility. For Croatia, the
                    essential point is that the Genocide Convention was in force in the terri-
                    tories concerned throughout the relevant period, because the SFRY was
                    a party to the Convention. According to Croatia, the FRY emerged
                    directly from the SFRY, with the organs of the new State taking over the
                    control of those of the old State during the course of 1991 when the
                    SFRY was “in a process of dissolution” (the phrase used by the Arbitra-
                    tion Commission of the Conference on Yugoslavia in Opinion No. 1,
                    29 November 1991, 92 International Law Reports (ILR), p. 162). On
                    27 April 1992, the FRY made a declaration which, as the Court deter-
                    mined in 2008, had the effect of a notification of succession (see para-

                                                                                44

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                               application of genocide convention (judgment)                  44

                    graph 76 above) to the Genocide Convention and other treaties to which
                    the SFRY had been party. Croatia maintains that there was, therefore, a
                    continuous application of the Convention, that it would be artificial and
                    formalistic to confine jurisdiction to the period from 27 April 1992, and
                    that a decision to limit jurisdiction to events occurring on or after that
                    date would create a “time gap” in the protection afforded by the Conven-
                    tion. Croatia points to the absence of any temporal limitation in the terms
                    of Article IX of the Genocide Convention. At least by the early summer
                    of 1991, according to Croatia, the SFRY had ceased to be a functioning
                    State and what became the FRY was already a State in statu nascendi.
                       82. Croatia therefore relies on what it describes as the customary inter-
                    national law principle stated in Article 10 (2) of the International Law
                    Commission’s (“ILC”) Articles on the Responsibility of States for Inter-
                    nationally Wrongful Acts, adopted in 2001. Article 10 (2) provides :

                            “The conduct of a movement, insurrectional or other, which
                        s ucceeds in establishing a new State in part of the territory of a pre‑
                         existing State or in a territory under its administration shall be con-
                         sidered an act of the new State under international law.”
                       According to Croatia, that principle is applicable to the facts of the
                    present case with the result that the acts of the JNA and other armed
                    groups controlled by the movement that later proclaimed the FRY as a
                    State on 27 April 1992, even though they occurred before that date, must
                    be regarded as acts of the FRY for the purposes of State responsibility. In
                    the alternative, Croatia contends that if those acts should instead be
                    attributed to the SFRY, the FRY succeeded to the responsibility of the
                    SFRY for them.
                       83. Further, Croatia denies that its claim is inadmissible, to the extent
                    that it relies upon events said to have occurred before 8 October 1991. It
                    maintains that the Genocide Convention is not “a bundle of synallag-
                    matic obligations” between parties but creates obligations erga omnes. It
                    also emphasizes that the Convention was in force for the benefit of the
                    population of Croatia at all relevant times.

                                                        * *

                    (3) The scope of jurisdiction under Article IX of the Genocide Convention

                      84. The Court begins by recalling that the only basis for jurisdiction
                    which has been advanced in the present case is Article IX of the Genocide
                    Convention. That Article provides :
                           “Disputes between the Contracting Parties relating to the interpre-
                        tation, application or fulfilment of the present Convention, including

                                                                                45

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                               application of genocide convention (judgment)                   45

                        those relating to the responsibility of a State for genocide or for any
                        of the other acts enumerated in Article III, shall be submitted to the
                        International Court of Justice at the request of any of the parties to
                        the dispute.”
                    As the Court noted in its 2008 Judgment,
                        “[t]he SFRY signed the Genocide Convention on 11 December 1948,
                        and deposited an instrument of ratification, without reservation, on
                        29 August 1950 ; it is common ground between the Parties that the
                        SFRY was thus a party to the Convention at the time in the 1990s
                        when it began to disintegrate into separate and independent States”
                        (I.C.J. Reports 2008, p. 446, para. 97).
                    Croatia deposited a notification of succession on 12 October 1992, which
                    it considers took effect from 8 October 1991, the date on which it came
                    into existence as a State. In its preliminary objections in the present pro-
                    ceedings, Serbia took the position that it became bound by the Genocide
                    Convention only when the FRY deposited an instrument of accession
                    containing a reservation to Article IX on 12 March 2001. However, as
                    already noted, the Court held, in its 2008 Judgment, that the FRY became
                    a party to the Convention on 27 April 1992 on the basis of the declara-
                    tion and Note referred to in paragraph 76, above, and was thus bound by
                    the obligations under the Convention (ibid., p. 451, para. 111 ; pp. 454‑455,
                    para. 117).
                       85. The fact that the jurisdiction of the Court in the present proceed-
                    ings can be founded only upon Article IX has important implications for
                    the scope of that jurisdiction. That Article provides for jurisdiction only
                    with regard to disputes relating to the interpretation, application or fulfil-
                    ment of the Genocide Convention, including disputes relating to the
                    responsibility of a State for genocide or for any of the other acts enumer-
                    ated in Article III of the Convention. As the Court explained in its
                    2007 Judgment in the proceedings between Bosnia and Herzegovina and
                    Serbia, in which Article IX was also the only basis for jurisdiction, Arti-
                    cle IX confines the Court to disputes regarding genocide. The Court thus
                        “has no power to rule on alleged breaches of other obligations under
                        international law, not amounting to genocide, particularly those pro-
                        tecting human rights in armed conflict. That is so even if the alleged
                        breaches are of obligations under peremptory norms, or of obliga-
                        tions which protect essential humanitarian values, and which may be
                        owed erga omnes.” (Application of the Convention on the Prevention
                        and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
                        Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 104,
                        para. 147.)

                    That does not prevent the Court from considering, in its reasoning,
                    whether a violation of international humanitarian law or international

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                                  application of genocide convention (judgment)                                                      46

                    human rights law has occurred to the extent that this is relevant for the
                    Court’s determination of whether or not there has been a breach of an
                    obligation under the Genocide Convention.
                       86. The Court must, however, recall — as it has done on previous
                    occasions — that the absence of a court or tribunal with jurisdiction to
                    resolve disputes about compliance with a particular obligation under
                    international law does not affect the existence and binding force of that
                    obligation. States are required to fulfil their obligations under interna-
                    tional law, including international humanitarian law and international
                    human rights law, and they remain responsible for acts contrary to inter-
                    national law which are attributable to them (see, e.g., Armed Activities on
                    the Territory of the Congo (New Application : 2002) (Democratic Republic
                    of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment,
                    I.C.J. Reports 2006, pp. 52‑53, para. 127, and Application of the Conven‑
                    tion on the Prevention and Punishment of the Crime of Genocide (Bosnia
                    and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports
                    2007 (I), p. 104, para. 148).
                       87. Furthermore, since Article IX provides for jurisdiction only with
                    regard to “the interpretation, application or fulfilment of the Convention,
                    including . . . the responsibility of a State for genocide or for any of the
                    other acts enumerated in Article III”, the jurisdiction of the Court does
                    not extend to allegations of violation of the customary international law
                    on genocide. It is, of course, well established that the Convention
                    enshrines principles that also form part of customary international law.
                    Article I provides that “[t]he Contracting Parties confirm that genocide,
                    whether committed in time of peace or in time of war, is a crime under
                    international law”. The Court has also repeatedly stated that the Conven-
                    tion embodies principles that are part of customary international law.
                    That was emphasized by the Court in its 1951 Advisory Opinion :

                            “The origins of the Convention show that it was the intention of the
                        United Nations to condemn and punish genocide as ‘a crime under
                        international law’ involving a denial of the right of existence of entire
                        human groups, a denial which shocks the conscience of mankind and
                        results in great losses to humanity, and which is contrary to moral law
                        and the spirit and aims of the United Nations (resolution 96 (I) of the
                        General Assembly, 11 December 1946). The first consequence arising
                        from this conception is that the principles underlying the Convention
                        are principles which are recognized by civilized nations as binding on
                        States, even without any conventional obligation. A second conse-
                        quence is the universal character both of the condemnation of geno-
                        cide and of the co‑operation required ‘in order to liberate mankind
                        from such an odious scourge’ (Preamble to the Convention)
                        �����������������������������������������������������������������������������������������������������������������
                            The objects of such a convention must also be considered. The
                        Convention was manifestly adopted for a purely humanitarian and

                                                                                47

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                               application of genocide convention (judgment)                  47

                        civilizing purpose. It is indeed difficult to imagine a convention that
                        might have this dual character to a greater degree, since its object on
                        the one hand is to safeguard the very existence of certain human
                        groups and on the other to confirm and endorse the most elementary
                        principles of morality.” (Reservations to the Convention on the Preven‑
                        tion and Punishment of the Crime of Genocide, Advisory Opinion,
                        I.C.J. Reports 1951, p. 23.)
                    That statement was reaffirmed by the Court in Application of the Conven‑
                    tion on the Prevention and Punishment of the Crime of Genocide (Bosnia
                    and Herzegovina v. Serbia and Montenegro) (Judgment, I.C.J. Reports
                    2007 (I), pp. 110‑111, para. 161). In addition, the Court has made clear
                    that the Genocide Convention contains obligations erga omnes. Finally,
                    the Court has noted that the prohibition of genocide has the character of
                    a peremptory norm (jus cogens) (Armed Activities on the Territory of the
                    Congo (New Application : 2002) (Democratic Republic of the Congo v.
                    Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006,
                    pp. 31‑32, para. 64).
                       88. Moreover, the above‑mentioned Congo v. Rwanda Judgment
                    explains :
                           “The Court observes, however, as it has already had occasion to
                        emphasize, that ‘the erga omnes character of a norm and the rule of
                        consent to jurisdiction are two different things’ (East Timor (Portu‑
                        gal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29), and
                        that the mere fact that rights and obligations erga omnes may be at
                        issue in a dispute would not give the Court jurisdiction to entertain
                        that dispute.
                           The same applies to the relationship between peremptory norms of
                        general international law (jus cogens) and the establishment of the
                        Court’s jurisdiction : the fact that a dispute relates to compliance with
                        a norm having such a character, which is assuredly the case with
                        regard to the prohibition of genocide, cannot of itself provide a basis
                        for the jurisdiction of the Court to entertain that dispute. Under the
                        Court’s Statute that jurisdiction is always based on the consent of the
                        parties.” (Ibid.)
                    In the present case, any jurisdiction which the Court possesses is derived
                    from Article IX of the Genocide Convention and is therefore confined to
                    obligations arising under the Convention itself. Where a treaty states an
                    obligation which also exists under customary international law, the treaty
                    obligation and the customary law obligation remain separate and distinct
                    (Military and Paramilitary Activities in and against Nicaragua (Nicara‑
                    gua v. United States of America), Merits, Judgment, I.C.J. Reports 1986,
                    p. 96, para. 179). Accordingly, unless a treaty discloses a different inten-
                    tion, the fact that the treaty embodies a rule of customary international
                    law will not mean that the compromissory clause of the treaty enables
                    disputes regarding the customary law obligation to be brought before the

                                                                                48

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                               application of genocide convention (judgment)                 48

                    Court. In the case of Article IX of the Genocide Convention no such
                    intention is discernible. On the contrary, the text is quite clear that the
                    jurisdiction for which it provides is confined to disputes regarding the
                    interpretation, application or fulfilment of the Convention, including dis-
                    putes relating to the responsibility of a State for genocide or other acts
                    prohibited by the Convention. Article IX does not afford a basis on which
                    the Court can exercise jurisdiction over a dispute concerning an alleged
                    violation of the customary international law obligations regarding geno-
                    cide.
                       89. Accordingly, in order to establish that the Court has jurisdiction
                    with regard to the claim of Croatia relating to events alleged to have
                    occurred prior to 27 April 1992, the Applicant must show that its dispute
                    with Serbia regarding these events is a dispute relating to the interpreta-
                    tion, application or fulfilment of the Genocide Convention. It is not
                    enough that these events may have involved violations of the customary
                    international law regarding genocide ; the dispute must concern obliga-
                    tions under the Convention itself.

                                                        * *

                    (4) Serbia’s objection to jurisdiction
                      (a) Whether provisions of the Convention are retroactive

                       90. It is for the Court, on the basis of the submissions of the Parties,
                    and the arguments advanced in support thereof, to determine the subject‑
                    matter of the dispute before it. In the present case, the Court considers
                    that the essential subject‑matter of the dispute is whether Serbia is respon-
                    sible for violations of the Genocide Convention and, if so, whether Croa-
                    tia may invoke that responsibility. Thus stated, the dispute would appear
                    to fall squarely within the terms of Article IX.
                       91. Serbia maintains that, in so far as Croatia’s claim concerns acts
                    said to have occurred before the FRY became party to the Convention on
                    27 April 1992 (and the great majority of Croatia’s allegations concern
                    events before that date), the Convention was not capable of applying to
                    the FRY (and, therefore, any breaches of it cannot be attributable to
                    Serbia). Accordingly, Serbia contends that the dispute regarding those
                    allegations cannot be held to fall within the scope of Article IX.

                       92. In response, Croatia refers to what it describes as a presumption in
                    favour of the retroactive effect of compromissory clauses, which it main-
                    tains finds support in the Judgment of the Permanent Court of Interna-
                    tional Justice in the case of Mavrommatis Palestine Concessions (Greece v.
                    United Kingdom) (Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 35),
                    and to the absence of any temporal limitation in Article IX of the Geno-
                    cide Convention.

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                                application of genocide convention (judgment)                    49

                       93. In its 2008 Judgment in the present case, the Court stated “that
                    there is no express provision in the Genocide Convention limiting its juris-
                    diction ratione temporis” (I.C.J. Reports 2008, p. 458, para. 123 ; see also
                    Application of the Convention on the Prevention and Punishment of the
                    Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
                    Objections, Judgment, I.C.J. Reports 1996 (II), p. 617, para. 34). As will
                    be seen, the absence of a temporal limitation in Article IX is not without
                    significance but it is not, in itself, sufficient to establish jurisdiction over
                    that part of Croatia’s claim which relates to events said to have occurred
                    before 27 April 1992. Article IX is not a general provision for the settle-
                    ment of disputes. The jurisdiction for which it provides is limited to dis-
                    putes between the Contracting Parties regarding the interpretation,
                    application or fulfilment of the substantive provisions of the Genocide
                    Convention, including those relating to the responsibility of a State for
                    genocide or for any of the acts enumerated in Article III of the Conven-
                    tion. Accordingly, the temporal scope of Article IX is necessarily linked to
                    the temporal scope of the other provisions of the Genocide Convention.
                       94. Croatia seeks to address that issue by arguing that some, at least, of
                    the substantive provisions of the Convention are applicable to events occur-
                    ring before it entered into force for the Respondent. Croatia maintains that
                    the obligation to prevent and punish genocide is not limited to acts of geno-
                    cide occurring after the Convention enters into force for a particular State
                    but “is capable of encompassing genocide whenever occurring, rather than
                    only genocide occurring in the future after the Convention enters into force
                    for a particular State”. Serbia, however, denies that these provisions were
                    ever intended to impose upon a State obligations with regard to events
                    which took place before that State became bound by the Convention.
                       95. The Court considers that a treaty obligation that requires a State
                    to prevent something from happening cannot logically apply to events
                    that occurred prior to the date on which that State became bound by
                    that obligation ; what has already happened cannot be prevented. Logic,
                    as well as the presumption against retroactivity of treaty obligations
                    enshrined in Article 28 of the Vienna Convention on the Law of Treaties,
                    thus points clearly to the conclusion that the obligation to prevent geno-
                    cide can be applicable only to acts that might occur after the Convention
                    has entered into force for the State in question. Nothing in the text of the
                    Genocide Convention or the travaux préparatoires suggests a different
                    conclusion. Nor does the fact that the Convention was intended to con-
                    firm obligations that already existed in customary international law. A
                    State which is not yet party to the Convention when acts of genocide take
                    place might well be in breach of its obligation under customary interna-
                    tional law to prevent those acts from occurring but the fact that it subse-
                    quently becomes party to the Convention does not place it under an
                    additional treaty obligation to have prevented those acts from taking
                    place.
                       96. There is no similar logical barrier to a treaty imposing upon a State
                    an obligation to punish acts which took place before that treaty came into

                                                                                50

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                               application of genocide convention (judgment)                50

                    force for that State and certain treaties contain such an obligation. For
                    example, the Convention on the Non‑Applicability of Statutory Limita-
                    tions to War Crimes and Crimes against Humanity, 1968 (United Nations
                    General Assembly resolution 2391 (XXIII) ; United Nations, Treaty Series
                    (UNTS), Vol. 754, p. 73), is applicable, according to its Article 1, to the
                    crimes specified therein “irrespective of the date of their commission”.
                    Similarly, Article 2 (2) of the European Convention on the Non‑
                    Applicability of Statutory Limitations to Crimes against Humanity and
                    War Crimes, 1974 (European Treaty Series, No. 82), provides that the
                    Convention is applicable to offences committed before its entry into force
                    in cases where the statutory limitation period had not expired at that time.
                    In both those cases, however, the applicability of the relevant Convention
                    to acts which occurred before it entered into force is the subject of express
                    provision. There is no comparable provision in the Genocide Convention.
                    Moreover, the provisions requiring States to punish acts of genocide (Arti-
                    cles I and IV) are necessarily linked to the obligation (in Article V) for
                    each State party to enact legislation for the purpose of giving effect to the
                    provisions of the Convention. There is no indication that the Convention
                    was intended to require States to enact retroactive legislation.
                       97. The negotiating history of the Convention also suggests that the
                    duty to punish acts of genocide, like the other substantive provisions of
                    the Convention, was intended to apply to acts taking place in the future
                    and not to be applicable to those which had occurred during the Second
                    World War or at other times in the past. Thus, the representative of
                    Czechoslovakia stated that the Convention should “include express pro-
                    visions asserting the peoples’ desire to punish all those who, in the future,
                    might be tempted to repeat the appalling crimes which had been commit-
                    ted” (United Nations, Official Documents of the General Assembly, Part I,
                    Third Session, Sixth Committee, Minutes of the Sixty‑Sixth Meeting,
                    UN doc. A/C.6/SR.66, p. 30 ; emphasis added). Similarly, the representa-
                    tive of the Philippines stated that “[i]t was therefore essential to provide
                    for their punishment in [the] future” (ibid., Minutes of the Ninety‑Fifth
                    Meeting, UN doc. A/C.6/SR.95, p. 340 ; emphasis added) and the repre-
                    sentative of Peru described the Convention then under negotiation as one
                    “for the punishment of those who would be guilty of violating its provi-
                    sions in the future” (ibid., Minutes of the Hundred and Ninth Meeting,
                    UN doc. A/C.6/SR.109, p. 498 ; emphasis added). By contrast, in spite of
                    the events immediately preceding the adoption of the Convention — to
                    which many references were made — there was no suggestion that the
                    Convention under consideration was intended to impose an obligation on
                    States to punish acts of genocide committed in the past.

                       98. Finally, the Court recalls that in its recent Judgment in Questions
                    relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal)
                    (Judgment, I.C.J. Reports 2012 (II), p. 422), it held that the comparable
                    provisions of the Convention against Torture, which require each State
                    party to submit to their prosecuting authorities the cases of persons sus-

                                                                                51

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                             application of genocide convention (judgment)               51

                 pected of acts of torture, applied only to acts taking place after the Con-
                 vention had entered into force for the State concerned, notwithstanding
                 that such acts are considered crimes under customary international law
                 (I.C.J. Reports 2012 (II), p. 457, paras. 99‑100).

                    99. In arguing that some of the substantive obligations imposed by the
                 Convention are retroactive, Croatia focused upon the obligations to pre-
                 vent and punish genocide. It is, however, the responsibility of a State
                 under the Convention for the commission of acts of genocide that lies at
                 the heart of Croatia’s claim. The Court considers that in this respect also
                 the Convention is not retroactive. To hold otherwise would be to dis
                 regard the rule expressed in Article 28 of the Vienna Convention on the
                 Law of Treaties. There is no basis for doing so in the text of the Conven-
                 tion or in its negotiating history.

                   100. The Court thus concludes that the substantive provisions of the
                 Convention do not impose upon a State obligations in relation to acts
                 said to have occurred before that State became bound by the Convention.

                                                      * *
                    101. Having reached that conclusion, the Court now turns to the ques-
                 tion whether the dispute as to acts said to have occurred before
                 27 April 1992 nevertheless falls within the scope of jurisdiction under
                 Article IX. As the Court has already noted (see paragraph 82 above),
                 Croatia advances two alternative grounds for concluding that it does so.
                 Croatia relies, first, upon Article 10 (2) of the ILC Articles on State
                 Responsibility, and, secondly, upon the law of State succession. The
                 Court will consider each of these arguments in turn.

                     (b) Article 10 (2) of the ILC Articles on State Responsibility

                    102. Article 10 (2) of the ILC Articles on State Responsibility has
                 already been quoted in paragraph 82, above. According to Croatia, that
                 provision is part of customary international law. Croatia maintains that,
                 although the FRY was not proclaimed as a State until 27 April 1992, that
                 proclamation merely formalized a situation that was already established
                 in fact. During the course of 1991, according to Croatia, the leadership of
                 the Republic of Serbia and other supporters of what Croatia describes as
                 a “Greater Serbia” movement took control of the JNA and other institu-
                 tions of the SFRY, while also controlling their own territorial armed
                 forces and various militias and paramilitary groups. This movement was
                 eventually successful in creating a separate State, the FRY. Croatia con-
                 tends that its claim in relation to events prior to 27 April 1992 is based

                                                                                52

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                            application of genocide convention (judgment)                  52

                 upon acts by the JNA and those other armed forces and groups, as well
                 as the Serb political authorities, which were attributable to that move-
                 ment and thus, by operation of the principle stated in Article 10 (2), to
                 the FRY.

                    103. Serbia counters that Article 10 (2) represents progressive develop-
                 ment of the law and did not form part of customary international law in
                 1991‑1992. It is therefore inapplicable to the present case. Furthermore,
                 even if Article 10 (2) had become part of customary law at that time, it is
                 not applicable to the facts of the present case, since there was no “move-
                 ment” that succeeded in creating a new State. Serbia also denies that the
                 acts on which Croatia’s claim is based were attributable to an entity that
                 might be regarded as a Serbian State in statu nascendi during the period
                 before 27 April 1992. Finally, Serbia contends that even if Article 10 (2)
                 were applicable, it would not suffice to bring within the scope of Arti-
                 cle IX that part of Croatia’s claim which concerns events said to have
                 occurred before 27 April 1992. According to Serbia, Article 10 (2) of the
                 ILC Articles is no more than a principle of attribution ; it has no bearing
                 on the question of what obligations bind the new State or the earlier
                 “movement”, nor does it make treaty obligations accepted by the new
                 State after its emergence retroactively applicable to acts of the pre‑State
                 “movement”, even if it treats those acts as attributable to the new State.
                 On that basis, Serbia argues that any “movement” which might have
                 existed before 27 April 1992 was not a party to the Genocide Convention
                 and could, therefore, only have been bound by the customary interna-
                 tional law prohibition of genocide.

                    104. The Court considers that, even if Article 10 (2) of the ILC Articles
                 on State Responsibility could be regarded as declaratory of customary
                 international law at the relevant time, that Article is concerned only with
                 the attribution of acts to a new State ; it does not create obligations bind-
                 ing upon either the new State or the movement that succeeded in estab-
                 lishing that new State. Nor does it affect the principle stated in Article 13
                 of the said Articles that : “An act of a State does not constitute a breach
                 of an international obligation unless the State is bound by the obligation
                 in question at the time the act occurs.”

                    In the present case, the FRY was not bound by the obligations con-
                 tained in the Genocide Convention until it became party to that Conven-
                 tion. In its 2008 Judgment, the Court held that succession resulted from
                 the declaration made by the FRY on 27 April 1992 and its Note of the
                 same date (see paragraph 76, above). The date on which the notification
                 of succession was made coincided with the date on which the new State
                 came into existence. The Court has already found, in its 2008 Judgment,
                 that the effect of the declaration and Note of 27 April 1992 was “that
                 from that date onwards the FRY would be bound by the obligations of a

                                                                                53

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                              application of genocide convention (judgment)                 53

                 party in respect of all the multilateral conventions to which the SFRY
                 had been a party at the time of its dissolution” (I.C.J. Reports 2008,
                 pp. 454‑455, para. 117 ; emphasis added).
                    105. The FRY was, therefore, bound by the Genocide Convention
                 only with effect from 27 April 1992. Accordingly, even if the acts prior to
                 27 April 1992 on which Croatia relies were attributable to a “movement”,
                 within the meaning of Article 10 (2) of the ILC Articles, and became
                 attributable to the FRY by operation of the principle set out in that Arti-
                 cle, they cannot have involved a violation of the provisions of the Geno-
                 cide Convention but, at most, only of the customary international law
                 prohibition of genocide. Article 10 (2) cannot, therefore, serve to bring
                 the dispute regarding those acts within the scope of Article IX of the Con-
                 vention. That conclusion makes it unnecessary for the Court to consider
                 whether Article 10 (2) expresses a principle that formed part of customary
                 international law in 1991‑1992 (or, indeed, at any time thereafter), or
                 whether, if it did so, the conditions for its application are satisfied in the
                 present case.

                                                        * *

                     (c) Succession to responsibility
                    106. The Court therefore turns to Croatia’s alternative argument that
                 the FRY succeeded to the responsibility of the SFRY. This argument is
                 based upon the premise that the acts prior to 27 April 1992 on which
                 Croatia bases its claim were attributable to the SFRY and in breach of
                 the SFRY’s obligations under the Genocide Convention to which it was,
                 at the relevant time, a party. Croatia then argues that, when the FRY
                 succeeded to the treaty obligations of the SFRY on 27 April 1992, it also
                 succeeded to the responsibility already incurred by the latter for these
                 alleged violations of the Genocide Convention.
                    107. Croatia advances two separate grounds on which it claims the
                 FRY succeeded to the responsibility of the SFRY. First, it claims that
                 this succession came about as a result of the application of the principles
                 of general international law regarding State succession. In this context, it
                 relies upon the award of the arbitration tribunal in the Lighthouses Arbi‑
                 tration between France and Greece, Claims No. 11 and 4, 24 July 1956
                 (United Nations, Reports of International Arbitral Awards (RIAA),
                 Vol. XII, p. 155), which stated that the responsibility of a State might be
                 transferred to a successor if the facts were such as to make it appropriate
                 to hold the latter responsible for the former’s wrongdoing. The tribunal
                 considered that whether there would be a succession to responsibility
                 would depend on the particular facts of each case. Croatia contends that
                 the facts of the present case, in which the dissolution of the SFRY was a
                 gradual process involving armed conflict between what became its

                                                                                54

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                            application of genocide convention (judgment)                  54

                 successor States and in which one of the entities which emerged as a suc-
                 cessor — the FRY — largely controlled the armed forces of the SFRY
                 during the last year of the latter’s formal existence, justify the succession
                 of the FRY to the responsibility incurred by the SFRY for the acts of
                 armed forces that subsequently became organs of the FRY. Secondly,
                 Croatia argues that the FRY, by the declaration of 27 April 1992 already
                 discussed, indicated not only that it was succeeding to the treaty obliga-
                 tions of the SFRY, but also that it succeeded to the responsibility incurred
                 by the SFRY for the violation of those treaty obligations.

                    108. Serbia maintains that this alternative argument is a new claim
                 introduced by Croatia only at the oral phase of the proceedings and is
                 hence inadmissible. In the event that the Court decides that it can enter-
                 tain it, Serbia argues that neither Article IX, nor the other provisions of
                 the Genocide Convention, makes any provision for the transmission of
                 responsibility by succession, so that any succession would have to be by
                 operation of principles outside the Convention and a dispute regarding
                 those principles would not therefore fall within the scope of Article IX. In
                 any event, Serbia contends that there is no principle of succession to
                 responsibility in general international law. It maintains that the Light‑
                 houses case was concerned with the violation of private rights under a
                 concession contract and is of no relevance to responsibility for alleged
                 violations of the Genocide Convention. According to Serbia, the declara-
                 tion of 27 April 1992 was concerned only with succession to the treaties
                 themselves and not with succession to responsibility. Serbia further main-
                 tains that all issues of succession to the rights and obligations of the
                 SFRY are governed by the Agreement on Succession Issues, 2001 (UNTS,
                 Vol. 2262, p. 251), which lays down a procedure for considering outstand-
                 ing claims against the SFRY. Finally, Serbia argues that the Court
                 should, in any event, decline to exercise jurisdiction on the alternative
                 basis advanced by Croatia, because of the principle enunciated by the
                 Court in its Judgments in Monetary Gold Removed from Rome in 1943
                 (Italy v. France, United Kingdom and United States of America) (Prelimi‑
                 nary Question, Judgment, I.C.J. Reports 1954, p. 19) and East Timor
                 (Portugal v. Australia) (Judgment, I.C.J. Reports 1995, p. 90).
                    109. While the Court has made clear that an applicant may not intro-
                 duce a new claim which has the effect of transforming the subject‑matter
                 of the dispute (Territorial and Maritime Dispute between Nicaragua and
                 Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment,
                 I.C.J. Reports 2007 (II), p. 695, para. 108), it is not persuaded that, in
                 advancing its argument regarding State succession, Croatia has intro-
                 duced a new claim into the proceedings. The Court has already stated
                 that the subject‑matter of the dispute is whether or not Serbia is respon-
                 sible for violations of the Genocide Convention (see paragraph 90 above),
                 including those allegedly committed before 27 April 1992. The question
                 whether Serbia is responsible for such alleged violations must be distin-
                 guished from the manner in which that responsibility is said to be

                                                                                55

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                            application of genocide convention (judgment)                 55

                 established. Croatia initially maintained — and continues to advance as
                 its principal argument — that the FRY (and, thus, Serbia) incurred
                 responsibility for the conduct which Croatia contends violated the Con-
                 vention, because that conduct was directly attributable to the FRY. How-
                 ever, Croatia also advances, as an alternative argument, that, if that
                 conduct was attributable to the SFRY, then the FRY (and, consequently,
                 Serbia) incurred responsibility on the basis of succession. Croatia has not,
                 therefore, introduced a new claim but advanced, in support of its original
                 claim, a new argument as to the manner in which Serbia’s responsibility
                 is said to be established. Moreover, that argument involves no new title of
                 jurisdiction but concerns the interpretation and application of the title of
                 jurisdiction invoked in the Application, namely Article IX of the Geno-
                 cide Convention.
                     110. As noted at paragraph 77 above, the Court observed in 2008,
                 when deciding that Serbia’s objections to jurisdiction and admissibility
                 ratione temporis did not possess an exclusively preliminary character, that
                 the issues of jurisdiction and merits are closely related and the Court
                 needed to have more elements before it in order to be in a position to
                 make findings on each of those issues. Now that the Court, having
                 received the further pleadings and heard the oral arguments of the Par-
                 ties, is in possession of those additional elements, it can distinguish what
                 has to be decided in order to determine the question of jurisdiction from
                 those decisions which properly belong only to the merits.

                   111. In relation to jurisdiction, the question which has to be decided is
                 confined to whether the dispute between the Parties is one which falls
                 within the jurisdiction of the Court under Article IX of the Genocide
                 Convention. That dispute will do so only if it is one concerning the inter-
                 pretation, application or fulfilment of the Convention, which includes dis-
                 putes relating to the responsibility of a State for genocide or for any of
                 the other acts enumerated in Article III of the Convention.
                   112. Within the framework of the dispute, as analysed in paragraphs 90
                 and 109, above, it is possible to identify a number of contested points.
                 Thus, on Croatia’s alternative argument, in order to determine whether
                 Serbia is responsible for violations of the Convention, the Court would
                 need to decide :
                 (1) whether the acts relied on by Croatia took place ; and, if they did,
                     whether they were contrary to the Convention ;
                 (2) if so, whether those acts were attributable to the SFRY at the time
                     that they occurred and engaged its responsibility ; and

                 (3) if the responsibility of the SFRY had been engaged, whether the FRY
                     succeeded to that responsibility.
                 While there is no dispute that many (though not all) of the acts relied
                 upon by Croatia took place, the Parties disagree over whether or not they
                 constituted violations of the Genocide Convention. In addition, Serbia

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                            application of genocide convention (judgment)                    56

                 rejects Croatia’s argument that Serbia has incurred responsibility, on
                 whatever basis, for those acts.
                    113. What has to be decided in order to determine whether or not the
                 Court possesses jurisdiction with regard to the claim concerning acts said
                 to have taken place before 27 April 1992 is whether the dispute between
                 the Parties on the three issues set out in the preceding paragraph falls
                 within the scope of Article IX. The issues in dispute concern the interpre-
                 tation, application and fulfilment of the provisions of the Genocide Con-
                 vention. There is no suggestion here of giving retroactive effect to the
                 provisions of the Convention. Both Parties agree that the SFRY was
                 bound by the Convention at the time when it is alleged that the relevant
                 acts occurred. Whether those acts were contrary to the provisions of the
                 Convention and, if so, whether they were attributable to and thus engaged
                 the responsibility of the SFRY are matters falling squarely within the
                 scope ratione materiae of the jurisdiction provided for in Article IX.
                    114. So far as the third issue in dispute is concerned, the question the
                 Court is asked to decide is whether the FRY — and, therefore, Serbia —
                 is responsible for acts of genocide and other acts enumerated in Arti-
                 cle III of the Convention allegedly attributable to the SFRY. Article IX
                 provides for the Court’s jurisdiction in relation to “[d]isputes . . . relating
                 to the interpretation, application or fulfilment of the . . . Convention,
                 including those relating to the responsibility of a State for genocide or for
                 any of the other acts enumerated in Article III”. Croatia’s contention is
                 that Serbia is responsible for the breaches of the Genocide Convention
                 which it maintains were committed before 27 April 1992. On Croatia’s
                 principal argument, that responsibility results from the direct attribution
                 of those breaches to the FRY, and thus to Serbia, while on Croatia’s
                 alternative argument (with which this part of the Judgment is concerned),
                 responsibility is said to result from succession. The Court notes that Arti-
                 cle IX speaks generally of the responsibility of a State and contains no
                 limitation regarding the manner in which that responsibility might be
                 engaged. While Croatia’s arguments regarding the third issue identified in
                 paragraph 112 above raise serious questions of law and fact, those ques-
                 tions form part of the merits of the dispute. They would require a deci-
                 sion only if the Court finds that the acts relied upon by Croatia were
                 contrary to the Convention and were attributable to the SFRY at the
                 time of their commission.
                    115. It is true that whether or not the Respondent State succeeds, as
                 Croatia contends, to the responsibility of its predecessor State for viola-
                 tions of the Convention is governed not by the terms of the Convention
                 but by rules of general international law. However, that does not take the
                 dispute regarding the third issue outside the scope of Article IX. As the
                 Court explained in its 2007 Judgment in the Bosnia and Herzegovina v.
                 Serbia and Montenegro case,
                      “[t]he jurisdiction of the Court is founded on Article IX of the Gen-
                      ocide Convention, and the disputes subject to that jurisdiction are

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                            application of genocide convention (judgment)                  57

                     those ‘relating to the interpretation, application or fulfilment’ of the
                     Convention, but it does not follow that the Convention stands alone.
                     In order to determine whether the Respondent breached its obliga-
                     tions under the Convention, as claimed by the Applicant, and, if a
                     breach was committed, to determine its legal consequences, the Court
                     will have recourse not only to the Convention itself, but also to the
                     rules of general international law on treaty interpretation and on
                     responsibility of States for internationally wrongful acts.”
                     (I.C.J. Reports 2007 (I), p. 105, para. 149.)

                 The Court considers that the rules on succession that may come into play
                 in the present case fall into the same category as those on treaty interpre-
                 tation and responsibility of States referred to in the passage just quoted.
                 The Convention itself does not specify the circumstances that give rise to
                 the responsibility of a State, which must be determined under general
                 international law. The fact that the application — or even the existence —
                 of a rule on some aspect of State responsibility or State succession in
                 connection with allegations of genocide may be vigorously contested
                 between the parties to a case under Article IX does not mean that the
                 dispute between them ceases to fall within the category of “disputes . . .
                 relating to the interpretation, application or fulfilment of the [Genocide]
                 Convention, including those relating to the responsibility of a State for
                 genocide”. Since Croatia’s alternative argument calls for a determination
                 whether the SFRY was responsible for acts of genocide allegedly commit-
                 ted when the SFRY was a party to the Convention, the Court’s conclu-
                 sion regarding the temporal scope of Article IX does not constitute a
                 barrier to jurisdiction.
                    116. With regard to Serbia’s arguments based on the Judgments in
                 Monetary Gold Removed from Rome in 1943 (Italy v. France ; United
                 Kingdom and United States of America) (Preliminary Question, Judgment,
                 I.C.J. Reports 1954, p. 19) and East Timor (Portugal v. Australia) (Judg‑
                 ment, I.C.J. Reports 1995, p. 90), the Court recalls that those Judgments
                 concern one aspect of “the fundamental principles of its Statute . . . that
                 it cannot decide a dispute between States without the consent of those
                 States to its jurisdiction” (ibid., p. 101, para. 26). In both Monetary Gold
                 and East Timor, the Court declined to exercise its jurisdiction to adjudi-
                 cate upon the application, because it considered that to do so would have
                 been contrary to the right of a State not party to the proceedings not to
                 have the Court rule upon its conduct without its consent. That rationale
                 has no application to a State which no longer exists, as is the case with
                 the SFRY, since such a State no longer possesses any rights and is inca-
                 pable of giving or withholding consent to the jurisdiction of the Court. So
                 far as concerns the position of the other successor States to the SFRY, it
                 is not necessary for the Court to rule on the legal situation of those States
                 as a prerequisite for the determination of the present claim. The principle
                 discussed by the Court in the Monetary Gold case is therefore inapplicable

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                            application of genocide convention (judgment)                 58

                 (cf. Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary
                 Objections, Judgment, I.C.J. Reports 1992, pp. 261‑262, para. 55).
                    117. Having concluded in its 2008 Judgment that the present dispute
                 falls within Article IX of the Genocide Convention in so far as it concerns
                 acts said to have occurred after 27 April 1992, the Court now finds that,
                 to the extent that the dispute concerns acts said to have occurred before
                 that date, it also falls within the scope of Article IX and that the Court
                 therefore has jurisdiction to rule upon the entirety of Croatia’s claim. In
                 reaching that conclusion, it is not necessary to decide whether the FRY,
                 and therefore Serbia, actually succeeded to any responsibility that might
                 have been incurred by the SFRY, any more than it is necessary to decide
                 whether acts contrary to the Genocide Convention took place before
                 27 April 1992 or, if they did, to whom those acts were attributable. Those
                 questions are matters for the merits to be considered — to the extent nec-
                 essary — in the following sections of this Judgment.

                                                     * *
                 (5) Admissibility
                   118. The Court therefore turns to the two alternative arguments
                 advanced by Serbia regarding the admissibility of the claim. The first such
                 argument is that a claim based upon events said to have occurred before
                 the FRY came into existence as a State on 27 April 1992 is inadmissible.
                 The Court recalls that it has already, in its 2008 Judgment, held that this
                 argument involves questions of attribution. The Court observes that it is
                 not necessary to determine these matters before it has considered on the
                 merits the acts alleged by Croatia.

                    119. Serbia’s second alternative argument is that, even if a claim might
                 be admissible in relation to events said to have occurred before the FRY
                 came into existence as a State, Croatia could not maintain a claim in rela-
                 tion to events alleged to have taken place before it became a party to the
                 Genocide Convention on 8 October 1991. The Court observes that Croa-
                 tia has not made discrete claims in respect of the events before and after
                 8 October 1991 ; rather, it has advanced a single claim alleging a pattern
                 of conduct increasing in intensity throughout the course of 1991 and has
                 referred, in the case of many towns and villages, to acts of violence taking
                 place both immediately prior to, and immediately following, 8 Octo-
                 ber 1991. In this context, what happened prior to 8 October 1991 is, in
                 any event, pertinent to an evaluation of whether what took place after
                 that date involved violations of the Genocide Convention. In these cir-
                 cumstances, the Court considers that it is not necessary to rule upon Ser-
                 bia’s second alternative argument before it has examined and assessed the
                 totality of the evidence advanced by Croatia.

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                                         B. Serbia’s Counter‑Claim
                    120. With regard to the counter‑claim made by Serbia, Article 80,
                 paragraph 1, of the Rules of Court as adopted on 14 April 1978, which,
                 as the Court has already noted (see paragraph 7, above), is applicable to
                 this case as the Application was submitted prior to 1 February 2001, pro-
                 vides that “[a] counter‑claim may be presented provided that it is directly
                 connected with the subject‑matter of the claim of the other party and that
                 it comes within the jurisdiction of the Court.”

                    121. In its counter‑claim, Serbia alleges that Croatia violated its obli-
                 gations under the Genocide Convention by taking action, and failing to
                 punish the action taken, against the Serb population in the Krajina region
                 of Croatia. The counter‑claim relates exclusively to the fighting which
                 took place in the summer of 1995 in the course of what was described by
                 Croatia as Operation Storm and its aftermath. By the time that Opera-
                 tion Storm took place, both Croatia and the FRY had been parties to the
                 Genocide Convention for several years. Croatia does not contest that the
                 counter‑claim thus falls within the jurisdiction of the Court under Arti-
                 cle IX of the Genocide Convention.

                    122. With regard to the requirement that the counter‑claim be directly
                 connected with the subject‑matter of the claim, Serbia maintains that the
                 counter‑claim raises “virtually identical legal issues related to the inter-
                 pretation of the Genocide Convention . . . as well as related issues of
                 State responsibility arising under the Convention and general interna-
                 tional law” as those raised by the claim and that the claim and counter‑
                 claim relate to the same armed conflict and share “a common territorial
                 and temporal setting”. Croatia denies that the counter‑claim is based on
                 the same “factual complex” as the claim and highlights what it maintains
                 are a number of significant differences between them, including the fact
                 that the events to which the claim relates took place over a much wider
                 geographical area and that most of them occurred more than two years
                 before the events on which the counter‑claim is based.

                    123. The Court notes, however, that Croatia does not submit that the
                 counter‑claim is inadmissible ; the factual differences suggested by Croatia
                 are invoked in support of its arguments on the merits of the counter‑claim
                 (something which will be considered in Part VI of this Judgment). The
                 Court considers that the counter‑claim is directly connected with the
                 claim of Croatia both in fact and in law. The legal basis for both the
                 claim and the counter‑claim is the Genocide Convention. Moreover, even
                 if one accepts that the factual differences suggested by Croatia exist, the
                 hostilities in Croatia in 1991‑1992 that gave rise to most of the allegations
                 in the claim were directly connected with those in the summer of 1995,
                 not least because Operation Storm was launched as a response to what

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                            application of genocide convention (judgment)                   60

                 Croatia maintained was the occupation of part of its territory as a result
                 of the earlier fighting. The Court therefore concludes that the require-
                 ments of Article 80, paragraph 1, of the Rules of Court are satisfied. As
                 Article IX is the only basis for jurisdiction which has been advanced in
                 respect of the counter‑claim, the comments made in paragraphs 85 to 88
                 above are equally applicable to the counter‑claim.

                                                        *
                                                    *       *

                       III. Applicable Law : The Convention on the Prevention
                              and Punishment of the Crime of Genocide

                   124. The Genocide Convention, which is binding on the Parties, and
                 the sole basis on which the Court has jurisdiction, is the law applicable to
                 the present case. Accordingly, the Court can rule only on alleged breaches
                 of that Convention (see paragraphs 85‑88 above).

                    125. In ruling on disputes relating to the interpretation, application or
                 fulfilment of the Convention, including those relating to the responsibility
                 of a State for genocide, the Court bases itself on the Convention, but also
                 on the other relevant rules of international law, in particular those gov-
                 erning the interpretation of treaties and the responsibility of States for
                 internationally wrongful acts. Moreover, as it observed in its Judgment of
                 18 November 2008 on the preliminary objections in the present case,

                     “[i]n general the Court does not choose to depart from previous find-
                     ings, particularly when similar issues were dealt with in the earlier
                     decisions . . . unless it finds very particular reasons to do so”
                     (I.C.J. Reports 2008, p. 449, para. 104).

                 In this connection, the Court recalls that, in its Judgment of 26 Febru-
                 ary 2007 in the Bosnia and Herzegovina v. Serbia and Montenegro case, it
                 considered certain issues similar to those before it in the present case. It
                 will take into account that Judgment to the extent necessary for its legal
                 reasoning here. This will not, however, preclude it, where necessary, from
                 elaborating upon this jurisprudence, in light of the arguments of the Par-
                 ties in the present case.
                    126. In its final submissions, Croatia requests the Court to rule on Ser-
                 bia’s responsibility for alleged breaches of the Convention. According to
                 the Applicant, a distinction must be drawn between the issue of Serbia’s
                 international responsibility for a series of crimes, which is a matter for the

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                            application of genocide convention (judgment)                    61

                 Court in this case, and that of individual responsibility for particular
                 crimes, which it is the function of the International Criminal Tribunal for
                 the former Yugoslavia (“ICTY”) to determine.

                     127. For its part, Serbia points out that the Court’s Judgment in 2007
                  was built upon the case law of the ICTY, and that its analysis used indi-
                  vidual criminal responsibility rather than State responsibility as the
                 starting‑point.
                     128. The Court recalls that, in its 2007 Judgment, it observed that “if a
                  State is to be responsible because it has breached its obligation not to
                  commit genocide, it must be shown that genocide as defined in the Con-
                  vention has been committed” (I.C.J. Reports 2007 (I), p. 119, para. 180).
                 It may consist of acts, attributable to the State, committed by a person or
                 a group of persons whose individual criminal responsibility has already
                 been established. But the Court also envisaged an alternative scenario, in
                 which “State responsibility can arise under the Convention for genocide
                 and complicity, without an individual being convicted of the crime or an
                 associated one” (ibid., p. 120, para. 182).

                    In either of these situations, the Court applies the rules of general inter-
                 national law on the responsibility of States for internationally wrongful
                 acts. Specifically, Article 3 of the ILC Articles on State Responsibility,
                 which reflects a rule of customary law, states that “[t]he characterization
                 of an act of a State as internationally wrongful is governed by interna-
                 tional law”.
                    129. State responsibility and individual criminal responsibility are gov-
                 erned by different legal régimes and pursue different aims. The former
                 concerns the consequences of the breach by a State of the obligations
                 imposed upon it by international law, whereas the latter is concerned with
                 the responsibility of an individual as established under the rules of inter-
                 national and domestic criminal law, and the resultant sanctions to be
                 imposed upon that person.
                    It is for the Court, in applying the Convention, to decide whether acts of
                 genocide have been committed, but it is not for the Court to determine the
                 individual criminal responsibility for such acts. That is a task for the crimi-
                 nal courts or tribunals empowered to do so, in accordance with appropriate
                 procedures. The Court will nonetheless take account, where appropriate, of
                 the decisions of international criminal courts or tribunals, in particular
                 those of the ICTY, as it did in 2007, in examining the constituent elements
                 of genocide in the present case. If it is established that genocide has been
                 committed, the Court will then seek to determine the responsibility of the
                 State, on the basis of the rules of general international law governing the
                 responsibility of States for internationally wrongful acts.
                    130. Article II of the Convention defines genocide in the following
                 terms :
                        “In the present Convention, genocide means any of the following

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                              application of genocide convention (judgment)                   62

                       acts committed with intent to destroy, in whole or in part, a national,
                       ethnical, racial or religious group, as such :

                       (a) Killing members of the group ;
                       (b) Causing serious bodily or mental harm to members of the group ;

                       (c) Deliberately inflicting on the group conditions of life calculated
                           to bring about its physical destruction in whole or in part ;
                       (d) Imposing measures intended to prevent births within the group ;
                       (e) Forcibly transferring children of the group to another group.”
                    According to that Article, genocide contains two constituent elements :
                 the physical element, namely the act perpetrated or actus reus, and the
                 mental element, or mens rea. Although analytically distinct, the two ele-
                 ments are linked. The determination of actus reus can require an inquiry
                 into intent. In addition, the characterization of the acts and their mutual
                 relationship can contribute to an inference of intent.

                   131. The Court will begin by defining the intent to commit genocide,
                 before analysing the legal issues raised by the acts referred to in Article II
                 of the Convention.

                                        A. The Mens Rea of Genocide
                    132. The “intent to destroy, in whole or in part, a national, ethnical,
                 racial or religious group as such” is the essential characteristic of geno-
                 cide, which distinguishes it from other serious crimes.
                    It is regarded as a dolus specialis, that is to say a specific intent, which,
                 in order for genocide to be established, must be present in addition to the
                 intent required for each of the individual acts involved (I.C.J. Reports
                 2007 (I), p. 121, para. 187).
                    133. In the present case, the Parties differ (1) on the meaning and scope
                 of “destruction” of a group, (2) on the meaning of destruction of a group
                 “in part”, and finally (3) on what constitutes the evidence of the dolus
                 specialis.

                 (1) The meaning and scope of “destruction” of a group
                     (a) Physical or biological destruction of the group
                    134. Croatia argues that the required intent is not limited to the intent
                 to physically destroy the group, but includes also the intent to stop it
                 from functioning as a unit. Thus, according to Croatia, genocide as
                 defined in Article II of the Convention need not take the form of physical
                 destruction of the group. As evidence of this, it points out that some of
                 the acts of genocide listed in Article II of the Convention do not imply
                 the physical destruction of the group. By way of example, it cites “causing

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                             application of genocide convention (judgment)                63

                 serious . . . mental harm to members of the group” (subparagraph (b) of
                 Article II), and “forcibly transferring children of the group to another
                 group” (subparagraph (e) of that Article).

                   135. Serbia, on the contrary, rejects this functional approach to the
                 destruction of the group, taking the view that what counts is the intent to
                 destroy the group in a physical sense, even if the acts listed in Article II
                 may sometimes appear to fall short of causing such physical destruction.
                   136. The Court notes that the travaux préparatoires of the Convention
                 show that the drafters originally envisaged two types of genocide, physi-
                 cal or biological genocide, and cultural genocide, but that this latter con-
                 cept was eventually dropped in this context (see Report of the Ad Hoc
                 Committee on Genocide, 5 April to 10 May 1948, United Nations, Pro‑
                 ceedings of the Economic and Social Council, Seventh Session, Supplement
                 No. 6, UN doc. E/794 ; and United Nations, Official Documents of the
                 General Assembly, Part I, Third Session, Sixth Committee, Minutes of the
                 Eighty‑Third Meeting, UN doc. A/C.6/SR.83, pp. 193‑207).
                   It was accordingly decided to limit the scope of the Convention to the
                 physical or biological destruction of the group (Report of the ILC on the
                 Work of Its Forty‑Eighth Session, Yearbook of the International Law
                 Commission, 1996, Vol. II, Part Two, pp. 45‑46, para. 12, quoted by the
                 Court in its 2007 Judgment, I.C.J. Reports 2007 (I), p. 186, para. 344).

                    It follows that “causing serious . . . mental harm to members of the
                 group” within the meaning of Article II (b), even if it does not directly
                 concern the physical or biological destruction of members of the group,
                 must be regarded as encompassing only acts carried out with the intent of
                 achieving the physical or biological destruction of the group, in whole or
                 in part.
                    As regards the forcible transfer of children of the group to another
                 group within the meaning of Article II (e), this can also entail the intent
                 to destroy the group physically, in whole or in part, since it can have
                 consequences for the group’s capacity to renew itself, and hence to ensure
                 its long‑term survival.
                     (b) Scale of destruction of the group
                    137. Croatia contends that the extermination of the group is not
                 required according to the definition of genocide as set out in Article II of
                 the Convention. It argues that there is a requirement to prove that the
                 perpetrator intended to destroy the group, in whole or in part, and that
                 that intent need not necessarily involve the extermination of the group.
                 Croatia has even argued that a small number of victims who are members
                 of the group would suffice, citing the travaux préparatoires, and in par-
                 ticular the draft amendment proposed by the French delegation to the
                 Sixth Committee of the General Assembly (United Nations, Official Doc‑
                 uments of the General Assembly, Part I, 3rd Session, Sixth Committee,

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                            application of genocide convention (judgment)                    64

                 Minutes of the Seventy‑Third Meeting, pp. 90‑91, doc. A/C.6/SR.73 ; and
                 ibid., Annex to the Minutes of the Two‑Hundred and Twenty‑Fourth Meet‑
                 ing, p. 22, doc. A/C.6/224), even though that proposal was ultimately
                 withdrawn.
                    According to Serbia, extermination, as a crime against humanity, may
                 be related to genocide in that both crimes are directed against a large
                 number of victims. It accepts that, in order to demonstrate the existence
                 of genocide, it is necessary to prove that the acts were committed with the
                 intent to destroy the group physically. It argues, however, that, where
                 there is evidence of extermination, “the deduction that the perpetrator
                 intended the physical destruction of the targeted group will be much more
                 plausible”. Conversely, where there is no evidence of extermination, this
                 deduction of genocidal intent “will be implausible, absent other compel-
                 ling evidence”.
                    138. The Court considers that Article II of the Convention, including
                 the phrase “committed with intent to destroy”, must be “interpreted in
                 good faith in accordance with the ordinary meaning to be given to the
                 terms of the treaty in their context and in the light of its object and pur-
                 pose”, as prescribed by customary law as reflected in Article 31 of the
                 Vienna Convention on the Law of Treaties.
                    139. The Preamble to the Genocide Convention emphasizes that “geno-
                 cide has inflicted great losses on humanity”, and that the contracting par-
                 ties have set themselves the aim of “liberat[ing] mankind from such an
                 odious scourge”. As the Court noted in 1951 and recalled in 2007, an
                 object of the Convention was the safeguarding of “the very existence of
                 certain human groups” (Reservations to the Convention on the Prevention
                 and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports
                 1951, p. 23, and Application of the Convention on the Prevention and Pun‑
                 ishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
                 Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 125, para. 194).
                    The Court recalls that, in 2007, it held that the intent to destroy a
                 national, ethnic, racial or religious group as such is specific to genocide
                 and distinguishes it from other related criminal acts such as crimes against
                 humanity and persecution (I.C.J. Reports 2007 (I), pp. 121‑122,
                 paras. 187‑188).
                    Since it is the group, in whole or in part, which is the object of the
                 genocidal intent, the Court is of the view that it is difficult to establish
                 such intent on the basis of isolated acts. It considers that, in the absence
                 of direct proof, there must be evidence of acts on a scale that establishes
                 an intent not only to target certain individuals because of their member-
                 ship to a particular group, but also to destroy the group itself in whole or
                 in part.

                 (2) The meaning of destruction of the group “in part”
                   140. Croatia accepts that, according to the case law of the Court and of
                 the international criminal tribunals, “the intent to destroy . . . in part” the

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                            application of genocide convention (judgment)                   65

                 protected group relates to a substantial part of that group. However, it
                 objects to a purely numerical approach to this criterion, arguing that the
                 emphasis should be on the geographical location of the part of the group,
                 within a region, or a subregion or a community, as well as the opportuni-
                 ties presented to the perpetrators of the crime to destroy the group.
                    141. Serbia focuses on the criterion that the targeted part of the group
                 must be substantial and on the established case law in that regard, while
                 accepting that it might be relevant to consider the issue of opportunity.

                    142. The Court recalls that the destruction of the group “in part”
                 within the meaning of Article II of the Convention must be assessed by
                 reference to a number of criteria. In this regard, it held in 2007 that “the
                 intent must be to destroy at least a substantial part of the particular
                 group” (I.C.J. Reports 2007 (I), p. 126, para. 198), and that this is a
                 “critical” criterion (ibid., p. 127, para. 201). The Court further noted that
                 “it is widely accepted that genocide may be found to have been commit-
                 ted where the intent is to destroy the group within a geographically lim-
                 ited area” (ibid., p. 126, para. 199) and that, accordingly, “[t]he area of
                 the perpetrator’s activity and control are to be considered” (ibid., pp. 126-
                 127, para. 199). Account must also be taken of the prominence of the
                 allegedly targeted part within the group as a whole. With respect to this
                 criterion, the Appeals Chamber of the ICTY specified in its Judgment
                 rendered in the Krstić case that
                     “[i]f a specific part of the group is emblematic of the overall group,
                     or is essential to its survival, that may support a finding that the part
                     qualifies as substantial within the meaning of Article 4 [of the ICTY
                     Statute, paragraph 2 of which essentially reproduces Article II of the
                     Convention]” (IT‑98‑33‑A, Judgment of 19 April 2004, para. 12, ref-
                     erence omitted, cited in I.C.J. Reports 2007 (I), p. 127, para. 200).
                    In 2007, the Court held that these factors would have to be assessed in
                 any particular case (ibid., p. 127, para. 201). It follows that, in evaluating
                 whether the allegedly targeted part of a protected group is substantial in
                 relation to the overall group, the Court will take into account the quanti-
                 tative element as well as evidence regarding the geographic location and
                 prominence of the allegedly targeted part of the group.

                 (3) Evidence of the dolus specialis
                    143. The Parties agree that the dolus specialis is to be sought, first, in
                 the State’s policy, while at the same time accepting that such intent will
                 seldom be expressly stated. They agree that, alternatively, the dolus spe‑
                 cialis may be established by indirect evidence, i.e., deduced or inferred
                 from certain types of conduct. They disagree, however, on the number
                 and nature of instances of such conduct required for this purpose.
                    144. Croatia considers that conduct of this kind may be reflected in the
                 actions of a small number of identified individuals, whereas Serbia cites

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                 the Elements of Crimes, adopted pursuant to the Rome Statute of the
                 International Criminal Court, which refer to “a manifest pattern of simi-
                 lar conduct directed against [the] group”. The Respondent considers that
                 this excludes the possibility of genocide being committed by a single indi-
                 vidual or a small number of individuals.
                    145. In the absence of a State plan expressing the intent to commit
                 genocide, it is necessary, in the Court’s view, to clarify the process
                 whereby such an intent may be inferred from the individual conduct of
                 perpetrators of the acts contemplated in Article II of the Convention. In
                 its 2007 Judgment, the Court held that
                     “[t]he dolus specialis, the specific intent to destroy the group in whole
                     or in part, has to be convincingly shown by reference to particular
                     circumstances, unless a general plan to that end can be convincingly
                     demonstrated to exist ; and for a pattern of conduct to be accepted as
                     evidence of its existence, it would have to be such that it could only
                     point to the existence of such intent” (I.C.J. Reports 2007 (I),
                     pp. 196‑197, para. 373).
                   The Parties have cited this passage of the Judgment, and they accept
                 that intent may be inferred from a pattern of conduct, but they disagree
                 on how this pattern should be characterized, and on the criterion by ref-
                 erence to which the Court should assess its existence.
                   146. Croatia considers that the above criterion, as defined in 2007, is
                 excessively restrictive and not based on any precedent, and asks the Court
                 to reconsider it. It points out that it has been unable to find any decision
                 of an international court or tribunal since 2007 in which this criterion has
                 been applied. It invites the Court to draw inspiration from the following
                 passage in the ICTY Trial Judgment in the Tolimir case (currently under
                 appeal) in order to modify the criterion laid down by it in 2007 regarding
                 evidence of dolus specialis :
                       “Indications of such intent are rarely overt, however, and thus it is
                     permissible to infer the existence of genocidal intent based on ‘all of
                     the evidence taken together’, as long as this inference is ‘the only
                     reasonable [one] available on the evidence’.” (Tolimir, IT‑05‑88/2‑T,
                     Trial Chamber, Judgment of 12 December 2012, para. 745.)

                    According to Croatia, even where there may be other possible explana-
                 tions for a pattern of conduct, the Court is bound to find that there was
                 dolus specialis if it is fully convinced that the only reasonable inference to
                 be drawn from that conduct is one of genocidal intent.
                    147. For its part, Serbia points out that, even though the ICTY Trial
                 Chamber in the Tolimir case did not cite paragraph 373 of the Court’s
                 2007 Judgment, its conclusion that the inference of genocidal intent must
                 be “the only reasonable [one] available on the evidence” was consistent
                 with that passage in the Court’s Judgment. Serbia accordingly takes the
                 view that the two approaches to the criterion of genocidal intent — the

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                 only possible inference (the line taken in the Court’s 2007 Judgment), or
                 the only reasonable inference (the ICTY’s approach in its decision in the
                 Tolimir case) — come to the same thing and are both equally stringent.

                    148. The Court recalls that, in the passage in question in its 2007 Judg-
                 ment, it accepted the possibility of genocidal intent being established indi-
                 rectly by inference. The notion of “reasonableness” must necessarily be
                 regarded as implicit in the reasoning of the Court. Thus, to state that,
                 “for a pattern of conduct to be accepted as evidence of . . . existence [of
                 genocidal intent], it [must] be such that it could only point to the existence
                 of such intent” amounts to saying that, in order to infer the existence of
                 dolus specialis from a pattern of conduct, it is necessary and sufficient that
                 this is the only inference that could reasonably be drawn from the acts in
                 question. To interpret paragraph 373 of the 2007 Judgment in any other
                 way would make it impossible to reach conclusions by way of inference.
                 It follows that the criterion applied by the ICTY Trial Chamber in the
                 Judgment in the Tolimir case is in substance identical with that laid down
                 by the Court in its 2007 Judgment.

                                       B. The Actus Reus of Genocide
                   149. The acts listed in Article II of the Convention constitute the actus
                 reus of genocide. Such acts are proscribed in the context of genocide inas-
                 much as they are directed against the members of the protected group
                 and reflect the intent to destroy that group in whole or in part. As the
                 Court has already pointed out, such acts cannot be taken in isolation, but
                 must be assessed in the context of the prevention and punishment of
                 genocide, which is the object of the Convention.
                   150. The Court will review the categories of acts in issue between the
                 Parties in order to determine their meaning and scope. It will begin by
                 addressing the issue of whether acts committed during the course of an
                 armed conflict must, in order to constitute the actus reus of genocide, be
                 unlawful under international humanitarian law (jus in bello).

                 (1) The relationship between the Convention and international humanitarian
                      law
                   151. Both in the proceedings on the principal claim and in those on the
                 counter‑claim, the Parties debated the relationship between international
                 humanitarian law and the Convention. They disagreed on the issue of
                 whether acts which are lawful under international humanitarian law can
                 constitute the actus reus of genocide.
                   152. On the principal claim, Serbia argued that acts committed by Serb
                 forces occurred during what it described as “legitimate combat” with
                 Croatian armed forces. Croatia replied that the Convention applied both

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                 in times of peace and in times of war and that, in any event, the attacks
                 on Croat localities by the Serb forces had not been conducted in accor-
                 dance with international humanitarian law.

                   On the counter‑claim, Croatia recalled that the ICTY Appeals Cham-
                 ber had held in Gotovina (IT‑06‑90‑A, Appeals Judgment, 16 November
                 2012, hereinafter “Gotovina Appeals Judgment”) that the shelling of Serb
                 towns during Operation Storm had not been indiscriminate and hence
                 was not contrary to international humanitarian law. Serbia, for its part,
                 argued that, even if the Operation Storm attacks had been conducted in
                 compliance with international humanitarian law, they could still consti-
                 tute the actus reus of genocide.

                    153. The Court notes that the Convention and international humani-
                 tarian law are two distinct bodies of rules, pursuing different aims. The
                 Convention seeks to prevent and punish genocide as a crime under inter-
                 national law (Preamble), “whether committed in time of peace or in time
                 of war” (Art. I), whereas international humanitarian law governs the con-
                 duct of hostilities in an armed conflict and pursues the aim of protecting
                 diverse categories of persons and objects.
                    The Court recalls that it has jurisdiction to rule only on violations of
                 the Genocide Convention, and not on breaches of obligations under
                 international humanitarian law (see paragraph 85 above). The Court is
                 called upon here to decide a dispute concerning the interpretation and
                 application of that Convention, and will not therefore rule, in general or
                 in abstract terms, on the relationship between the Convention and inter-
                 national humanitarian law.
                    In so far as both of these bodies of rules may be applicable in the con-
                 text of a particular armed conflict, the rules of international humanitarian
                 law might be relevant in order to decide whether the acts alleged by the
                 Parties constitute genocide within the meaning of Article II of the Con-
                 vention.

                 (2) The meaning and scope of the physical acts in question
                    154. In subparagraphs (a) to (e) of Article II, the Convention lists the
                 acts which constitute the actus reus of genocide. The Court will examine
                 each in turn, with the exception of “[f]orcibly transferring children of the
                 group to another group” (subparagraph (e)), which is not relied on by
                 either of the Parties in this case.
                     (a) Killing members of the group
                   155. The Court notes that there is no disagreement between the Parties
                 on the definition of killing in the sense of subparagraph (a) of Article II
                 of the Convention.
                   156. The Court observes that the words “killing” and “meurtre” appear
                 in the English and French versions respectively of subparagraph (a) of

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                 Article II of the Convention. For the Court, these words have the same
                 meaning, and refer to the act of intentionally killing members of the group
                 (I.C.J. Reports 2007 (I), p. 121, para. 186 and Blagojević and Jokić,
                 IT‑02‑60‑T, Trial Chamber, Judgment of 17 January 2005, para. 642).
                     (b) Causing serious bodily or mental harm to members of the group

                    157. The Parties disagree on whether causing serious bodily or mental
                 harm to members of the group must contribute to the destruction of the
                 group, in whole or in part, in order to constitute the actus reus of geno-
                 cide for purposes of Article II (b) of the Convention. Croatia argues that
                 there is no need to show that the harm itself contributed to the destruc-
                 tion of the group. Serbia, on the other hand, contends that the harm must
                 be so serious that it threatens the group with destruction.
                    The Court considers that, in the context of Article II, and in particular
                 of its chapeau, and in light of the Convention’s object and purpose, the
                 ordinary meaning of “serious” is that the bodily or mental harm referred
                 to in subparagraph (b) of that Article must be such as to contribute to
                 the physical or biological destruction of the group, in whole or in part.
                    The Convention’s travaux préparatoires confirm this interpretation. Thus
                 the representative of the United Kingdom, in proposing an amendment to
                 characterize the harm as “grievous” in the English version of the Conven-
                 tion, stated that “[i]t would not be appropriate to include, in the list of acts
                 of genocide, acts which were of little importance in themselves and were
                 not likely to lead to the physical destruction of the group”. Upon the pro-
                 posal of the representative of India, the term “grievous” was eventually
                 replaced by the term “serious” in the English version of the Convention,
                 without affecting the idea behind the proposal of the representative of the
                 United Kingdom (United Nations, Official Documents of the General
                 Assembly, Part I, Third Session, Sixth Committee, Minutes of the Eighty‑First
                 Meeting, UN doc. A/C.6/SR.81, pp. 175 and 179, and ibid., Annex to Min‑
                 utes of the Meetings, UN doc. A/C.6/222, p. 21).

                   In its commentary on the Draft Code of Crimes against the Peace and
                 Security of Mankind, the ILC adopted a similar interpretation according
                 to which “[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” (Report of the ILC on the Work of Its Forty‑Eighth
                 Session, Yearbook of the International Law Commission, 1996, Vol. II,
                 Part Two, p. 46, para. 14).
                   Finally, that is the interpretation of “serious harm” adopted by the
                 ICTY, in particular in the Krajišnik case where the Trial Chamber ruled
                 that the harm must be such “as to contribute, or tend to contribute, to the
                 destruction of the group or part thereof” (IT‑00‑39‑T, Judgment of 27 Sep-
                 tember 2006, para. 862 ; see also Tolimir, IT‑05‑88/2‑T, Trial Chamber,
                 Judgment of 12 December 2012, para. 738).

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                    The Court concludes that the serious bodily or mental harm within the
                 meaning of Article II (b) of the Convention must be such as to contrib-
                 ute to the physical or biological destruction of the group, in whole or in
                 part.
                    158. The Court recalls that 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 (I.C.J. Reports 2007 (I), p. 167, para. 300
                 (citing in particular the Judgment of the ICTY Trial Chamber, rendered
                 on 31 July 2003 in the Stakić case, IT‑97‑24‑T, and p. 175, para. 319).

                    159. The Parties also disagree on the meaning and scope of the notion
                 of “causing serious mental harm to members of the group”. For Croatia,
                 this includes the psychological suffering caused to their surviving relatives
                 by the disappearance of members of the group. It thus argues that Arti-
                 cle II (b) has been the subject of a continuing breach in the present case,
                 since insufficient action has been initiated by Serbia to ascertain the fate
                 of individuals having disappeared during the events cited in support of
                 the principal claim.
                    For the Respondent, this is not an issue covered by the Genocide Con-
                 vention, but by human rights instruments, and falls outside the scope of
                 the present case.
                    160. In the Court’s view, the persistent refusal of the competent
                 authorities to provide relatives of individuals who disappeared in the con-
                 text of an alleged genocide with information in their possession, which
                 would enable the relatives to establish with certainty whether those indi-
                 viduals are dead, and if so, how they died, is capable of causing psycho-
                 logical suffering. The Court concludes, however, that, to fall within
                 Article II (b) of the Convention, the harm resulting from that suffering
                 must be such as to contribute to the physical or biological destruction of
                 the group, in whole or in part.
                     (c) Deliberately inflicting on the group conditions of life calculated to
                          bring about its physical destruction
                   161. Deliberate infliction on the group of conditions of life calculated
                 to bring about its physical destruction in whole or in part, within the
                 meaning of 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 (see, inter alia, Stakić, IT‑97‑24‑T,
                 Trial Chamber, Judgment of 31 July 2003, paras. 517 and 518). Such
                 methods of destruction include notably deprivation of food, medical care,
                 shelter or clothing, as well as lack of hygiene, systematic expulsion from
                 homes, or exhaustion as a result of excessive work or physical exertion
                 (Brđanin, IT‑99‑36‑T, Trial Chamber, Judgment of 1 September 2004,
                 para. 691). Some of these acts were indeed alleged by the Parties in sup-
                 port of their respective claims, and those allegations will be examined by
                 the Court later in the Judgment.

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                    The Parties disagree, however, on whether forced displacement should
                 be characterized as “[d]eliberately inflicting on the group conditions of
                 life calculated to bring about its physical destruction in whole or in part”,
                 in the sense of Article II (c) of the Convention. They agree that the
                 forced displacement of the population cannot constitute, as such, the
                 actus reus of genocide within the meaning of subparagraph (c) of Arti-
                 cle II of the Convention. However, Croatia argues that forced displace-
                 ment, accompanied by other acts listed in Article II of the Convention,
                 and coupled with an intent to destroy the group, is a genocidal act. For
                 its part, Serbia maintains that neither the case law of the Court nor that
                 of the ICTY has accepted that forced displacement can constitute geno-
                 cide within the meaning of Article II of the Convention.
                    162. The Court recalls that, in its 2007 Judgment, it stated that
                       “[n]either the intent, as a matter of policy, to render an area ‘ethnically
                       homogeneous’, nor the operations that may be carried out to imple-
                       ment such policy, can as such be designated as genocide : the intent
                       that characterizes genocide is ‘to destroy, in whole or in part’ a par-
                       ticular group, and deportation or displacement of the members of a
                       group, even if effected by force, is not necessarily equivalent to
                       destruction of that group, nor is such destruction an automatic con-
                       sequence of the displacement” (I.C.J. Reports 2007 (I), p. 123,
                       para. 190 ; emphasis in original).

                     It explained, however, that
                       “[t]his is not to say that acts described as ‘ethnic cleansing’ may never
                       constitute genocide, if they are such as to be characterized as, for
                       example, ‘deliberately inflicting on the group conditions of life calcu-
                       lated to bring about its physical destruction in whole or in part’, con-
                       trary to Article II, paragraph (c), of the Convention, provided such
                       action is carried out with the necessary specific intent (dolus specia‑
                       lis), that is to say with a view to the destruction of the group, as
                       distinct from its removal from the region . . . In other words, whether
                       a particular operation described as ‘ethnic cleansing’ amounts to gen-
                       ocide depends on the presence or absence of acts listed in Article II
                       of the Genocide Convention, and of the intent to destroy the group
                       as such. In fact, in the context of the Convention, the term ‘ethnic
                       cleansing’ has no legal significance of its own. That said, it is clear
                       that acts of ‘ethnic cleansing’ may occur in parallel to acts prohibited
                       by Article II of the Convention, and may be significant as indicative
                       of the presence of a specific intent (dolus specialis) inspiring those
                       acts.” (Ibid.)

                    163. The Court has no reason here to depart from its previous conclu-
                 sions. In order to determine whether the forced displacements alleged by

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                             application of genocide convention (judgment)                   72

                 the Parties constitute genocide in the sense of Article II of the Convention
                 (subparagraph (c), in particular), it will seek to ascertain whether, in the
                 present case, those forced displacements took place in such circumstances
                 that they were calculated to bring about the physical destruction of the
                 group. The circumstances in which the forced displacements were carried
                 out are critical in this regard.
                     (d) Measures intended to prevent births within the group
                    164. According to Croatia, rape and other acts of sexual violence can
                 fall within subparagraph (d) of Article II of the Convention, which cov-
                 ers measures intended to prevent births within the group. In support of
                 this contention, it refers to the observation of the Trial Chamber of the
                 International Criminal Tribunal for Rwanda in the Akayesu case that the
                 mental effects of rape could lead members of the group not to procreate.
                 Croatia also cites the Trial Chamber’s conclusion that, “in patriarchal
                 societies where membership of a group is determined by the identity of
                 the father”, rape could be “an example of a measure intended to prevent
                 births within a group” (ICTR‑96‑4‑T, Trial Chamber 1, Judgment of
                 2 September 1998, paras. 507‑508).

                    165. Serbia disputes the contention that rape and other acts of sexual
                 violence can fall within the terms of Article II (d) of the Convention,
                 unless they are of a systematic nature — which, it contends, is not the
                 case here.
                    166. The Court considers that rape and other acts of sexual violence,
                 which may also fall within subparagraphs (b) and (c) of Article II, are
                 capable of constituting the actus reus of genocide within the meaning of
                 Article II (d) of the Convention, provided that they are of a kind which
                 prevent births within the group. In order for that to be the case, it is neces-
                 sary that the circumstances of the commission of those acts, and their con-
                 sequences, are such that the capacity of members of the group to procreate
                 is affected. Likewise, the systematic nature of such acts has to be consid-
                 ered in determining whether they are capable of constituting the actus reus
                 of genocide within the meaning of Article II (d) of the Convention.

                                                         *
                                                     *       *

                                           IV. Questions of Proof

                    167. In support of their respective claim and counter‑claim, the Parties
                 have alleged a number of facts which have been contested, to some degree,
                 by one side or the other. The existence of the alleged facts must be estab-
                 lished before applying the relevant rules of international law.

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                    168. The Court observes, however, that as regards the principal claim,
                 the differences between the Parties relate less to the existence of the facts
                 than to their characterization by reference to the Convention and, in par-
                 ticular, to the inferences to be drawn from them in respect of proof of
                 specific intent (dolus specialis).
                    169. The Parties have discussed at some length the burden of proof,
                 the standard of proof and the methods of proof. The Court will consider
                 these questions in turn.

                                           A. The Burden of Proof
                    170. Croatia recognizes that the actori incumbit probatio principle
                 should generally apply, but considers that in the present case, Serbia
                 should co‑operate in putting before the Court all relevant evidence in its
                 possession concerning the facts relied on in support of the principal claim.
                 The Respondent is best placed, in Croatia’s view, to provide explanations
                 of acts which are claimed to have taken place in a territory over which
                 Serbia exercised exclusive control. Moreover, Serbia is said to have failed
                 to offer explanations or produce evidence in rebuttal of the Applicant’s
                 claims. Croatia considers that the Court should draw adverse inferences
                 from this in respect of Serbia.
                    171. For Serbia, Croatia is seeking, in this way, to reverse the burden
                 of proof. It maintains that one party cannot be forced to give an explana-
                 tion in response to the claims of the other party. It further contends that
                 it has adequately rebutted Croatia’s claims by giving explanations and
                 producing reliable evidence.
                    172. The Court recalls that it is for the party alleging a fact to demon-
                 strate its existence. This principle is not an absolute one, however, since
                 “[t]he determination of the burden of proof is in reality dependent on the
                 subject‑matter and the nature of [the] dispute brought before the Court ;
                 it varies according to the type of facts which it is necessary to establish for
                 the purposes of the decision of the case” (Ahmadou Sadio Diallo (Repub‑
                 lic of Guinea v. Democratic Republic of the Congo), Merits, Judgment,
                 I.C.J. Reports 2010 (II), p. 660, para. 54). In particular, the Court has
                 recognized that there may be circumstances in which the Applicant can-
                 not be required to prove a “negative fact” (ibid., p. 661, para. 55).
                    173. Whilst the burden of proof rests in principle on the party which
                 alleges a fact, this does not relieve the other party of its duty to co‑oper-
                 ate “in the provision of such evidence as may be in its possession that
                 could assist the Court in resolving the dispute submitted to it” (Pulp Mills
                 on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports
                 2010 (I), p. 71, para. 163). In this regard, the Court recalls that, between
                 September 2010 and May 2011, Serbia provided Croatia with approxi-
                 mately 200 documents requested by the latter (see paragraph 13 above).
                    174. In the present case, neither the subject‑matter nor the nature of
                 the dispute makes it appropriate to contemplate a reversal of the burden
                 of proof. It is not for Serbia to prove a negative fact, for example the

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                            application of genocide convention (judgment)                  74

                 absence of facts constituting the actus reus of genocide within the mean-
                 ing of Article II of the Convention in localities to which Croatia called
                 the Court’s attention.
                   175. Consequently, it is for Croatia to demonstrate the existence of the
                 facts put forward in support of its claims, and the Court cannot demand
                 of Serbia that it provide explanations of the facts alleged by the Appli-
                 cant.
                   176. The same principles are applicable, mutatis mutandis, in respect of
                 the counter‑claim.

                                          B. The Standard of Proof
                    177. The Parties agree on the fact that the standard of proof, laid
                 down by the Court in its 2007 Judgment in the proceedings between
                 Bosnia and Herzegovina and Serbia is applicable in the present case.
                    178. The Court, after recalling that “claims against a State involving
                  charges of exceptional gravity must be proved by evidence that is fully
                  conclusive (cf. Corfu Channel (United Kingdom v. Albania), Merits, Judg‑
                  ment, I.C.J. Reports 1949, p. 17)”, added that it “requires that it be fully
                 convinced that allegations made in the proceedings, that the crime of
                 genocide or the other acts enumerated in Article III have been commit-
                  ted, have been clearly established. The same standard applies to the proof
                  of attribution for such acts.” (I.C.J. Reports 2007 (I), p. 129, para. 209.)

                    179. Allegations similar to those examined in the 2007 Judgment have
                 been made in the present dispute, both in the principal claim and in the
                 counter‑claim. Hence, in the present case, the Court will apply the same
                 standard of proof.

                                            C. Methods of Proof
                    180. In order to rule on the facts alleged, the Court must assess the
                 relevance and probative value of the evidence proffered by the Parties in
                 support of their versions of the facts (Armed Activities on the Territory of
                 the Congo (Democratic Republic of the Congo v. Uganda), Judgment,
                 I.C.J. Reports 2005, p. 200, para. 58).
                    181. The Court observes that certain facts at issue in the present case
                 have formed the subject of proceedings before the ICTY, some of which
                 are still pending, and that the Parties have made copious reference to
                 documents arising from the proceedings of that Tribunal (indictments by
                 the Prosecutor, decisions and judgments of the Trial Chamber, judgments
                 of the Appeals Chamber, written and oral evidence).
                    182. The Parties agree, in general, on the evidential weight to be given
                 to these various documents, following the approach adopted in the
                 2007 Judgment, according to which the Court “should in principle accept
                 as highly persuasive relevant findings of fact made by the Tribunal at
                 trial, unless of course they have been upset on appeal”, and “any evalua-

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                            application of genocide convention (judgment)                  75

                 tion by the Tribunal based on the facts as so found for instance about the
                 existence of the required intent, is also entitled to due weight”
                 (I.C.J. Reports 2007 (I), p. 134, para. 223).

                   183. They differ, however, on the probative value to be attributed to
                 the ICTY Prosecutor’s decisions not to include a charge of genocide in an
                 indictment, and on that to be accorded, respectively, to the judgment of
                 the ICTY Trial Chamber in the case concerning Gotovina et al.
                 (IT‑06‑90‑T, Judgment of 15 April 2011, hereinafter the “Gotovina Trial
                 Judgment”) and the judgment of the Appeals Chamber in the same case.

                    184. As regards the probative value of the ICTY Prosecutor’s deci-
                 sions not to include a charge of genocide in an indictment, the Court
                 recalls that it drew the following distinction in its 2007 Judgment :
                     “as a general proposition the inclusion of charges in an indictment
                     cannot be given weight. What may however be significant is the deci-
                     sion of the Prosecutor, either initially or in an amendment to an
                     indictment, not to include or to exclude a charge of genocide.”
                     (I.C.J. Reports 2007 (I), p. 132, para. 217.)
                    185. Croatia, which has contested this distinction, argues that the
                 Court should not accord probative value to the Prosecutor’s decisions not
                 to include a charge of genocide in an indictment, since the Prosecutor has
                 a discretionary power as to what charges, if any, to bring. The Prosecu-
                 tor’s decision, according to Croatia, might have been influenced by vari-
                 ous factors, without it meaning that the facts in question do not, for the
                 Prosecutor, constitute genocide, or that he or she has no evidence of their
                 existence.
                    186. Serbia, for its part, recognizes that such a decision does not create
                 an irrebuttable presumption, but considers that the Court should none-
                 theless accord it some degree of probative value.
                    187. The fact that the Prosecutor has discretion to bring charges does
                 not call into question the approach which the Court adopted in its
                 2007 Judgment (see ibid., reproduced at paragraph 184). The Court did
                 not intend to turn the absence of charges into decisive proof that there
                 had not been genocide, but took the view that this factor may be of sig-
                 nificance and would be taken into consideration. In the present case,
                 there is no reason for the Court to depart from that approach. The per-
                 sons charged by the Prosecutor included very senior members of the
                 political and military leadership of the principal participants in the hos-
                 tilities which took place in Croatia between 1991 and 1995. The charges
                 brought against them included, in many cases, allegations about the over-
                 all strategy adopted by the leadership in question and about the existence
                 of a joint criminal enterprise. In that context, the fact that charges of
                 genocide were not included in any of the indictments is of greater signifi-
                 cance than would have been the case had the defendants occupied much
                 lower positions in the chain of command. In addition, the Court cannot

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                            application of genocide convention (judgment)                 76

                 fail to note that the indictment in the case of the highest ranking defen-
                 dant of all, former President Milošević, did include charges of genocide in
                 relation to the conflict in Bosnia and Herzegovina, whereas no such
                 charges were brought in the part of the indictment concerned with the
                 hostilities in Croatia.

                    188. As regards the evidential weight to be given to the judgments of
                 the ICTY in the Gotovina case, the Court will return to this question in
                 due course when examining the counter‑claim (see paragraphs 464‑472
                 below).
                    189. The Court observes that in addition to materials from the ICTY,
                 the Parties have made use of many other documents, from a variety of
                 sources, and have discussed their evidential weight. In particular, they
                 have referred to several reports from official or independent bodies, and
                 to statements with diverse origins and content.
                    190. The Court recalls that it has held, with regard to reports from
                 official or independent bodies, that their value
                     “depends, among other things, on (1) the source of the item of evi-
                     dence (for instance partisan, or neutral), (2) the process by which it
                     has been generated (for instance an anonymous press report or the
                     product of a careful court or court‑like process), and (3) the quality
                     or character of the item (such as statements against interest, and
                     agreed or uncontested facts)” (I.C.J. Reports 2007 (I), p. 135,
                     para. 227).
                    191. It will consider the probative value of the reports in question on a
                 case‑by‑case basis, in accordance with these criteria, when examining the
                 merits of the claims.
                    192. The Court notes that Croatia annexed to its written pleadings
                 numerous statements by individuals, some of whom were called to give
                 oral testimony before the Court. Serbia asserts that many of the state-
                 ments produced by Croatia are flawed in such a way as to call into ques-
                 tion their probative value : certain statements are said not to have been
                 signed by their authors or by the persons who took them, or not to spec-
                 ify the circumstances in which they were allegedly taken. In particular, it
                 is claimed that some statements were taken by the Croatian police and
                 that, as a consequence, they cannot be regarded as impartial and would
                 not even be admissible before Croatian courts. Lastly, a large number of
                 statements submitted by Croatia are said not to demonstrate a direct
                 knowledge of the facts on the part of their authors, but to represent hear-
                 say evidence.
                    193. Croatia acknowledges that some of the statements annexed to its
                 Memorial were not initially signed by those who made them. It points
                 out, however, that it collected a number of signatures at a later stage and
                 appended the signed statements to its Reply. Croatia adds that some of
                 the individuals who had not signed their statements have testified before
                 the ICTY, and that their evidence given before the Tribunal was consis-

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                 tent with that contained in the unsigned statements. Lastly, Croatia con-
                 siders that the hearsay evidence is relevant and should be assessed in the
                 light of its content and the circumstances in which it was obtained.

                    194. During the oral proceedings, a Member of the Court put a ques-
                 tion to the Parties concerning the probative value to be given to the vari-
                 ous types of statements annexed to the Parties’ written pleadings,
                 according to whether or not the author had been called to give oral testi-
                 mony and cross‑examined by the opposing Party. In reply, Croatia main-
                 tained that all the statements had the same probative value, but that it
                 was for the Court to determine what weight should be given to them, on
                 the basis of the criteria set forth in the 2007 Judgment. Serbia, for its part,
                 drew a distinction between the statements of individuals called to give
                 oral testimony in these proceedings, whether or not they had been
                 cross‑examined, and the statements of individuals who were not so called.
                 According to the Respondent, whereas the former should all be accorded
                 the same probative value, the latter should be treated as out‑of‑court
                 statements and assessed as such in light of the criteria established in the
                 2007 Judgment, in the same way as all other documentary evidence fur-
                 nished by the Parties. Serbia stated that the Court should nonetheless give
                 special attention to the evidence given before the ICTY and to testi
                 monies before national courts. It added, finally, that the unsigned state-
                 ments and those produced in unknown circumstances, as well as the
                 statements prepared by official bodies whose impartiality had not been
                 established, should be disregarded.
                    195. Another Member of the Court put a question to Croatia concern-
                 ing the admissibility before Croatian courts of the unsigned statements
                 attached to its Memorial. Croatia replied that statements taken by the
                 police or other authorities were not necessarily signed and were not them-
                 selves admissible before Croatian courts. Croatia explained, however,
                 that these formed the basis upon which an investigating judge could inter-
                 rogate the individual concerned, giving rise to a signed statement that
                 would be admissible before Croatian courts. Serbia indicated that if a
                 party appeared before a court in the former Yugoslavia with an unsigned
                 out-of-court statement, it would not be admitted into evidence.

                   196. The Court recalls that neither its Statute nor its Rules lay down
                 any specific requirements concerning the admissibility of statements
                 which are presented by the parties in the course of contentious proceed-
                 ings, whether the persons making those statements were called to give
                 oral testimony or not. The Court leaves the parties free to determine the
                 form in which they present this type of evidence. Consequently, the
                 absence of signatures of the persons who made the statements or took
                 them does not in principle exclude these documents. However, the Court
                 has to ensure that documents, which purport to contain the statements of
                 individuals who are not called to give oral testimony, faithfully record the
                 evidence actually given by those individuals. Moreover, the Court recalls

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                 that even affidavits will be treated “with caution” (Territorial and Mari‑
                 time Dispute between Nicaragua and Honduras in the Caribbean Sea
                 (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 731,
                 para. 244). In determining the evidential weight of any statement by an
                 individual, the Court necessarily takes into account its form and the cir-
                 cumstances in which it was made.
                    197. The Court has thus held that it must assess “whether [such state-
                 ments] were made by State officials or by private persons not interested in
                 the outcome of the proceedings and whether a particular affidavit attests
                 to the existence of facts or represents only an opinion as regards certain
                 events” (ibid.). On this second point, the Court has stated that “testi-
                 mony of matters not within the direct knowledge of the witness, but
                 known to him only from hearsay, [is not] of much weight” (Military and
                 Paramilitary Activities in and against Nicaragua (Nicaragua v. United
                 States of America), Merits, Judgment, I.C.J. Reports 1986, p. 42, para. 68,
                 referring to Corfu Channel (United Kingdom v. Albania), Merits, Judg‑
                 ment, I.C.J. Reports 1949, p. 17). Lastly, the Court has recognized that
                 “in some cases evidence which is contemporaneous with the period con-
                 cerned may be of special value” (Territorial and Maritime Dispute between
                 Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras),
                 Judgment, I.C.J. Reports 2007 (II), p. 731, para. 244).
                    198. The Court recognizes the difficulties of obtaining evidence in the
                 circumstances of the case. Nevertheless, it notes that many of the state-
                 ments produced by Croatia are deficient.
                    Thus, certain statements consist of records of interviews by the Croa-
                 tian police of one or sometimes several individuals which are not signed
                 by those persons and contain no indication that those individuals were
                 aware of the content. Moreover, the words used appear to be those of the
                 police officers themselves. The Court cannot accord evidential weight to
                 such statements.
                    Other statements appear to record the words of the witness but are not
                 signed. Some of these statements were subsequently confirmed by signed
                 supplementary statements deposited with the Reply and can, therefore, be
                 given the same evidential weight as statements which bore the signature
                 of the witness when they were initially produced to the Court. In some
                 cases, the witness in question has testified before the Court or before the
                 ICTY and that testimony has confirmed the content of the original state-
                 ment to which the Court can, therefore, also accord some evidential
                 weight. However, the Court cannot accord evidential weight to those
                 statements which are neither signed nor confirmed.
                    199. Certain statements present difficulties in that they fail to mention
                 the circumstances in which they were given or were only made several
                 years after the events to which they refer. The Court might nonetheless
                 accord some evidential weight to these statements. Other statements are
                 not eyewitness accounts of the facts. The Court will accord evidential
                 weight to these statements only where they have been confirmed by other
                 witnesses, either before the Court or before the ICTY, or where they have

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                            application of genocide convention (judgment)                   79

                 been corroborated by credible evidence. The Court will refer to these cat-
                 egories of statements subsequently when it examines Croatia’s allega-
                 tions.

                                                        *
                                                    *       *

                        V. Consideration of the Merits of the Principal Claim

                   200. The Court will now examine Croatia’s claims relating to the com-
                 mission of genocide between 1991 and 1995 in the regions of Eastern Sla-
                 vonia, Western Slavonia, Banovina/Banija, Kordun, Lika and Dalmatia.

                    201. The Court will seek first to determine whether the alleged acts
                 have been established and, if so, whether they fall into the categories of
                 acts listed in Article II of the Convention ; and then, should that be estab-
                 lished, whether those physical acts were committed with intent to destroy
                 the protected group, in whole or in part.
                    202. Only if the Court finds that there has been genocide within the
                 meaning of Article II of the Convention will it consider the questions of
                 the admissibility of the principal claim in respect of the acts prior to
                 8 October 1991 and whether any acts in respect of which the claim is held
                 to be admissible can entail the responsibility of Serbia.

                                       A. The Actus Reus of Genocide
                 (1) Introduction
                    203. The Court does not consider it necessary to deal separately with
                 each of the incidents mentioned by the Applicant, nor to compile an
                 exhaustive list of the alleged acts. It will focus on the allegations concern-
                 ing localities put forward by Croatia as representing examples of system-
                 atic and widespread acts committed against the protected group, from
                 which an intent to destroy it, in whole or in part, could be inferred. These
                 are the localities cited by Croatia during the oral proceedings or in regard
                 to which it called witnesses to give oral testimony, as well as those where
                 the occurrence of certain acts has been established before the ICTY.

                    204. Croatia’s allegations refer to acts committed by the JNA and
                 other entities (police and defence forces of the SAOs and the RSK — Ter-
                 ritorial Defence Force (TO), units of the Ministry of the Interior (MUP),
                 Milicija Krajina — and paramilitary groups) which are allegedly attribut-
                 able to Serbia. Solely for the purpose of discussing the facts which form
                 the subject of the principal claim, the Court will use the terms “Serbs” or
                 “Serb forces” to designate entities other than the JNA, without prejudice
                 to the question of the attribution of their conduct.

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                            application of genocide convention (judgment)                  80

                    205. Under the terms of Article II of the Convention, genocide covers
                 acts committed with intent to destroy a national, ethnical, racial or reli-
                 gious group in whole or in part. In its written pleadings, Croatia defines
                 that group as the Croat national or ethnical group on the territory of
                 Croatia, which is not contested by Serbia. For the purposes of its discus-
                 sion, the Court will designate that group using the terms “Croats” or
                 “protected group” interchangeably.
                    206. Croatia claims that acts constituting the actus reus of genocide
                 within the meaning of Article II (a) to (d) of the Convention were com-
                 mitted by the JNA and Serb forces against members of the protected
                 group as defined in the previous paragraph. The Court will consider these
                 claims by referring in turn to the categories of acts laid down in Article II
                 of the Convention and assessing whether they have been established to
                 the standard set out in paragraphs 178 and 179.
                    207. Serbia acknowledges that war crimes, crimes against humanity
                 and other atrocities were perpetrated against Croats by various armed
                 groups, although it maintains that it has not been established that those
                 crimes were committed with the intent to destroy the Croat group, in
                 whole or in part, or that they are attributable to Serbia.
                    208. The Court notes that the ICTY found that, from the summer of
                 1991, the JNA and Serb forces had perpetrated numerous crimes (includ-
                 ing killing, torture, ill‑treatment and forced displacement) against Croats
                 in the regions of Eastern Slavonia, Banovina/Banija, Kordun, Lika and
                 Dalmatia (see, in particular, IT‑95‑13/1‑T, Trial Chamber, Judgment of
                 27 September 2007 (hereinafter “Mrkšić Trial Judgment”) ; IT‑95‑11‑T,
                 Trial Chamber, Judgment of 12 June 2007 (hereinafter “Martić Trial
                 Judgment”) ; IT‑03‑69‑T, Trial Chamber, Judgment of 30 May 2013
                 (hereinafter “Stanišić and Simatović Trial Judgment”)).

                 (2) Article II (a) : killing members of the protected group
                    209. Article II (a) of the Convention concerns the killing of members
                 of the protected group. Croatia claims that large numbers of ethnic Cro-
                 ats were killed between 1991 and 1995 by the JNA and Serb forces in the
                 regions of Eastern Slavonia, Western Slavonia, Banovina/Banija, Kor-
                 dun, Lika and Dalmatia.
                    210. In response, Serbia contests the probative value of the evidence
                 presented by Croatia. Further, while it acknowledges that many ethnic
                 Croats were killed, it disputes that the killings were committed with geno-
                 cidal intent or that such intent is attributable to it.

                   211. The Court will consider in turn Croatia’s claims concerning kill-
                 ings perpetrated by the JNA and Serb forces in various localities.

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                             application of genocide convention (judgment)                  81

                     Region of Eastern Slavonia

                       (a) Vukovar and its surrounding area
                    212. Croatia attaches particular importance to the events which took
                 place in Vukovar and its surrounding area in the autumn of 1991. Accord-
                 ing to the Applicant, the JNA and Serb forces killed several hundred
                 civilians in that multi‑ethnic city in Eastern Slavonia, situated on the bor-
                 der with Serbia and intended to become, under the plans for a “Greater
                 Serbia”, the capital of the new Serbian region of Slavonia, Baranja and
                 Western Srem.
                    213. Croatia first asserts that, between the end of August and
                 18 November 1991, Vukovar was besieged and subjected to sustained and
                 indiscriminate shelling, laying waste to the city. It alleges that between
                 1,100 and 1,700 people, 70 per cent of whom were civilians, were killed
                 during that period. According to the Applicant, the attacks on Vukovar
                 were directed not simply against an opposing military force, but also
                 against the civilian population ; moreover, those attacks are said to show
                 that the aim of the JNA and Serb forces was the destruction of the Croats
                 of Vukovar.
                    214. The Applicant then claims that hundreds of Croats were killed
                 when the JNA and Serb forces moved forward to seize ground, burning,
                 raping and killing as they did so.
                    215. Finally, Croatia contends that, following the fall of all districts of
                 Vukovar on 18 November 1991, the JNA and Serb forces continued to
                 target Croat survivors. In particular, it alleges that 350 Croat detainees at
                 Velepromet and another 260 at Ovčara were killed after having been
                 evacuated from Vukovar and from its hospital in particular.
                    216. In response to the accusations made against it, Serbia argues that,
                 on the whole, the written statements provided by Croatia in support of its
                 allegations do not fulfil the minimum evidentiary requirements. It further
                 maintains that much of the evidence presented by Croatia is hearsay, con-
                 tradictory, vague or from unreliable sources.

                    217. Serbia does not deny, however, that crimes were committed in
                 Vukovar and its surrounding area. Nevertheless, it argues that the figures
                 advanced by Croatia are very clearly exaggerated and that the Applicant
                 has not (1) produced reliable evidence relating to the number of persons
                 allegedly killed, (2) attempted to distinguish between the deaths resulting
                 from a legitimate use of force and those resulting from criminal acts,
                 (3) specified what proportion of the alleged victims were civilians and
                 what proportion were combatants, and (4) demonstrated that all victims
                 were of Croat ethnicity. Although Serbia admits that “incidents” occurred,
                 it considers that it was an excess of violence which led to the commission
                 of crimes, by a minority, and that those crimes were directed against
                 members of the Croatian forces, who represented but a very small frac-
                 tion of all those evacuated from Vukovar. Serbia adds that while the use

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                               application of genocide convention (judgment)                                                      82

                 of force by the assailants may have exceeded the needs of a normal mili-
                 tary operation, and while it certainly caused grave suffering to the civilian
                 population, regardless of ethnicity, there is nothing to suggest that the
                 attack on Vukovar was carried out with the intent to destroy the Croat
                 population as such.
                    218. The Court will first consider the allegations concerning those
                 killed during the siege and capture of Vukovar. The Parties have debated
                 the number of victims, their status and ethnicity and the circumstances in
                 which they died. The Court need not resolve all those issues. It observes
                 that, while there is still some uncertainty surrounding these questions, it
                 is clear that the attack on Vukovar was not confined to military objec-
                 tives ; it was also directed at the then predominantly Croat civilian popu-
                 lation (many Serbs having fled the city before or after the fighting broke
                 out). Although the indictment in the Mrkšić et al. case did not contain a
                 charge relating to the siege of Vukovar, the Trial Chamber found :

                         “470. . . .The duration of the fighting, the gross disparity between
                     the numbers of the Serb and Croatian forces engaged in the battle and
                     in the armament and equipment available to the opposing forces and,
                     above all, the nature and extent of the devastation brought on Vuk-
                     ovar and its immediate surroundings by the massive Serb forces over
                     the prolonged military engagement, demonstrate, in the finding of the
                     Chamber, that the Serb attack was also consciously and deliberately
                     directed against the city of Vukovar itself and its hapless civilian pop-
                     ulation, trapped as they were by the Serb military blockade of Vukovar
                     and its surroundings and forced to seek what shelter they could in the
                     basements and other underground structures that survived the ongo-
                     ing bombardments and assaults. What occurred was not, in the finding
                     of the Chamber, merely an armed conflict between a military force and
                     an opposing force in the course of which civilians became casualties
                     and some property was damaged. The events, when viewed overall,
                     disclose an attack by comparatively massive Serb forces, well armed,
                     equipped and organized, which slowly and systematically destroyed a
                     city and its civilian and military occupants to the point where there
                     was a complete surrender of those that remained.
                     �����������������������������������������������������������������������������������������������������������������
                         472. It is in this setting that the Chamber finds that, at the time
                     relevant to the indictment, there was in fact, not only a military oper-
                     ation against the Croat forces in and around Vukovar, but also a
                     widespread and systematic attack by the JNA and other Serb forces
                     directed against the Croat and other non‑Serb civilian population in
                     the wider Vukovar area. The extensive damage to civilian property
                     and civilian infrastructure, the number of civilians killed or wounded
                     during the military operations and the high number of civilians dis-
                     placed or forced to flee clearly indicate that the attack was carried out
                     in an indiscriminate way, contrary to international law. It was an

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                            application of genocide convention (judgment)                    83

                      unlawful attack. Indeed it was also directed in part deliberately
                      against the civilian population.” (Mrkšić Trial Judgment, paras. 470
                      and 472 ; references omitted.)
                    219. The Chamber’s findings confirm that numerous Croat civilians
                 were killed by the JNA and Serb forces during the siege and capture of
                 Vukovar (ibid., paras. 468‑469). Moreover, the Respondent admits that
                 the fighting which occurred in Vukovar and its surrounding area caused
                 grave suffering to the civilian population. Although Serbia has suggested
                 that Serb civilians trapped in the city of Vukovar may also have been
                 killed, the fact remains, as established before the ICTY, that many of the
                 victims were Croat and that the attacks were chiefly directed against Cro-
                 ats and other non‑Serbs (ibid., paras. 468‑469, 472). In addition, state-
                 ments produced by Croatia, to which the Court can give evidential weight,
                 support the Applicant’s allegations concerning the killing of Croat civil-
                 ians during the siege and capture of Vukovar.

                    220. The Court will now examine the allegations that Croats were
                 killed after the surrender of Vukovar, in particular those relating to the
                 events at Ovčara and Velepromet. In respect of Ovčara, the findings of
                 the ICTY in the aforementioned Mrkšić et al. case largely substantiate
                 Croatia’s position. The Court thus notes that, according to the Trial
                 Chamber, 194 persons suspected of involvement in the Croatian forces
                 and evacuated from Vukovar hospital on the morning of 20 November
                 1991 were killed by members of Serb forces at Ovčara that same evening
                 and night (20‑21 November 1991) (ibid., para. 509) ; it appears from this
                 finding that almost all the victims were of Croat ethnicity (ibid., para. 496),
                 were considered to be prisoners of war and, for the most part, were sick
                 or wounded (ibid., para. 510).

                    Serbia takes note of the Mrkšić Trial Judgment and does not contest
                 the fact that these killings were committed at Ovčara, adding that “[t]his
                 was the gravest mass murder in which Croats were the victims during the
                 entire conflict”. The Respondent also acknowledges that the Higher
                 Court in Belgrade convicted 15 Serbs for war crimes committed at Ovčara.
                    221. The ICTY also found that acts of ill‑treatment occurred at Vele-
                 promet and that several individuals suspected of involvement in the Croa-
                 tian forces were killed there by members of Serb forces, including at least
                 15 Croats (ibid., paras. 163, 165, 167). Serbia notes the finding of the
                 ICTY on this issue, but insists on the fact that the number of persons
                 killed at Velepromet is far below the 350 alleged by the Applicant.

                    222. Finally, the Court observes that the statement of Mr. Franjo Kožul,
                 called for oral testimony by Croatia and who appeared before the Court,
                 also substantiates certain of the Applicant’s allegations. Mr. Kožul states
                 that he was evacuated from Vukovar hospital and taken to Velepromet,
                 where he witnessed various acts of violence and, in particular, saw a

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                            application of genocide convention (judgment)                  84

                 member of the Serb forces holding the head of a prisoner he had decapi-
                 tated, a claim which was not challenged by Serbia. The Court considers
                 that it is therefore bound to give some evidential weight to this testimony.
                 The statement of F. G. also provides evidence of the fact that decapita-
                 tions occurred at Velepromet. This individual states that he was saved
                 from decapitation at the last moment by a JNA officer, and that he saw
                 “approximately fifteen decapitated bodies in [a] hole”.
                    223. The Court concludes that Croat detainees were killed at Vele-
                 promet by Serb forces, although it is unable to determine the exact num-
                 ber. However, it takes note of the ICTY’s finding that civilians detained
                 at Velepromet and not suspected of involvement in the Croatian forces
                 were evacuated to destinations in Croatia or Serbia on 20 November 1991
                 (Mrkšić Trial Judgment, para. 168).
                    224. In light of the foregoing, the Court concludes that it is established
                 that killings were perpetrated by the JNA and Serb forces against Croats
                 in Vukovar and its surrounding area during the siege and capture of Vuk-
                 ovar, and by Serb forces at the Ovčara and Velepromet camps.

                     (b) Bogdanovci
                    225. The Applicant claims that no fewer than 87 Croats were killed in
                 the predominantly Croat village of Bogdanovci, approximately 8 km
                 south‑east of Vukovar, during and after the attacks carried out on the
                 village on 2 October and 10 November 1991 by the JNA and Serb forces.
                 In support of its arguments, Croatia produces a number of written state-
                 ments.
                    226. One of the statements on which Croatia relies is that of
                 Ms Marija Katić, who was called for oral testimony and appeared before
                 the Court. In her written statement, Ms Katić names eight individuals
                 who she says were killed by grenades thrown into the basement of a house
                 on 2 October 1991, and a further three individuals who she believes were
                 killed by firearms on the same day. She adds that another ten people were
                 killed during the subsequent destruction of Bogdanovci.
                    227. Croatia also relies on an unsigned police record of an interview.

                   228. The Respondent disputes the probative value of the statements
                 produced by Croatia in support of its allegations, on the grounds that
                 they do not contain the signatures of the individuals said to have given
                 them and, in some cases, that it is not even possible to identify the person
                 or body to whom they were made. It further argues that these statements
                 are based on hearsay evidence, are imprecise and contradict one another.
                 Serbia contends that the events which occurred in Bogdanovci on 2 Octo-
                 ber and 10 November 1991 were part of a legitimate military operation
                 and that Croatian forces were actively involved in the fighting, destroying
                 tanks and armoured vehicles and inflicting heavy losses on the JNA and
                 Serb forces. It admits in this regard that “[u]ndoubtedly horrible crimes

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                            application of genocide convention (judgment)                   85

                 were committed in that town”, but argues that “once again, the pattern is
                 combat and excesses arising therein”.

                    229. The Court notes that many statements provided by Croatia were
                 made several years after the events in Bogdanovci are alleged to have
                 taken place and accordingly may be given only limited evidential weight.
                 To those statements which do not constitute first‑hand accounts of the
                 events, the Court gives no evidential weight. In this regard, the Court
                 notes that, although Ms Katić confirmed her account when testifying, it
                 is not certain that she witnessed at first hand all the killings which she
                 mentions. Finally, the Court recalls that no evidential weight can be given
                 to an unsigned police record of an interview.

                   230. Taking account of Serbia’s admission (see paragraph 228 above)
                 and the evidence put before it, the Court concludes that a number of
                 Croats were killed by the JNA and Serb forces in Bogdanovci on both
                 2 October and 10 November 1991, although it is unable to determine the
                 exact number.
                     (c) Lovas
                    231. Croatia claims that dozens of people were killed by the JNA and
                 Serb forces in Lovas, a predominantly Croat village situated approxi-
                 mately 20 km south‑east of Vukovar, between October 1991 and the end
                 of December 1991.
                    232. The Applicant states that the village was attacked by the JNA and
                 Serb paramilitary forces, despite the fact that it offered no resistance, that
                 there were no Croatian forces in the village and that its residents had
                 given up their arms following an ultimatum from the JNA. According to
                 Croatia, on 10 October 1991, at least 20 Croat civilians lost their lives
                 during an artillery attack carried out by the JNA against the Croat‑inhab-
                 ited areas of the village. Others were subsequently massacred by Serb
                 paramilitary groups and the JNA infantry, which stormed the village on
                 the same day.
                    233. Croatia then contends that, one week after that attack, all the
                 Croat males of fighting age were rounded up and tortured. According to
                 the Applicant, 11 of them died as a result of the ill‑treatment they received.
                 Croatia goes on to claim that the following day, on 18 October 1991,
                 some of the survivors were forced to march to a field, not far from
                 the village. One man was executed en route because he was unable to
                 keep up with the group, due to injuries inflicted the previous night.
                 Once at the field, Serb forces ordered the prisoners to walk forward hold-
                 ing hands, and to sweep the ground with their feet, in order to clear
                 the area of mines. One or more mines then exploded, before the Serb
                 forces opened fire on the survivors. At least 21 men died during what has
                 become known as the Lovas “minefield massacre”. Finally, Croatia sub-
                 mits that, between 19 October 1991 and the beginning of 1992, the vio-

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                            application of genocide convention (judgment)                 86

                 lence against Croat civilians continued and a further 68 people were
                 killed.

                    234. For its part, Serbia argues that the written statements relied on by
                 the Applicant in support of its allegations that killings were committed in
                 Lovas do not fulfil the minimum evidentiary requirements and that, in
                 any event, they do not corroborate Croatia’s claims, in particular because
                 they show that there was Croatian resistance during the attack of 10 Octo-
                 ber 1991. Serbia concedes, nevertheless, that 14 individuals have appeared
                 before a Belgrade court accused of killing 68 Croats from the village of
                 Lovas, and that some of the alleged acts referred to during that trial
                 “probably amount to war crimes and might also be deemed crimes against
                 humanity” ; it insists, however, that there is nothing to support an accusa-
                 tion of genocide.
                    235. The Court notes that some of the facts alleged by Croatia have
                 been established before the ICTY. Thus, although the attack on Lovas
                 was not referred to in the indictment in the Mrkšić et al. case, the Tribu-
                 nal’s Trial Chamber concluded that “Serb ‘volunteers’ in Lovas had
                 attacked specific homes on 10 October 1991 killing 22 Croats” (Mrkšić
                 Trial Judgment, para. 47).
                    236. With respect to the “minefield massacre”, Croatia relies on vari-
                 ous items of evidence in order to establish its allegations. In particular,
                 the statement of Stjepan Peulić, a witness called by Croatia to give oral
                 testimony but whom Serbia did not wish to cross‑examine (see para-
                 graph 25 above) and whose accounts have not been otherwise contra-
                 dicted, may be given evidential weight. Mr. Peulić offers a first‑hand
                 account of being held throughout the night of 17 October 1991, with
                 approximately 100 other Croats, and tortured. He states that the follow-
                 ing day, they were further tortured, and ordered to go out to a field. On
                 the road, he witnessed the killing of one Croat who could not keep up
                 because of injuries sustained during the torture. He testifies that he was
                 then ordered by Serb forces in mottled uniforms to walk through a field,
                 holding hands with other detained Croats and sweeping for mines with
                 their legs. He states that at “[a]round 11.00 hrs, when we activated the
                 first mine, someone shouted ‘Lie down’ and we all probably did lie down,
                 and the mentioned Serbo‑Chetniks started firing at us fiercely from all
                 their infantry weapons, and the shooting lasted for about 15 minutes”.
                 According to Mr. Peulić, an estimated 17 people were killed on the field,
                 most of whom he recalled by name.

                    237. Croatia further relies on the indictment prepared by the War
                 Crimes Prosecutor for the Belgrade District Court, issued against 14 Serbs
                 accused of killings committed in Lovas, including the “minefield massa-
                 cre”. In a Judgment of 26 June 2012, the Higher Court of Belgrade con-
                 victed the 14 accused of war crimes. The Court notes, however, that this
                 Judgment was quashed by the Belgrade Appeals Court in January 2014
                 due to shortcomings in the Higher Court’s findings regarding the indi-

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                 vidual criminal responsibility of the accused, and that the accused must
                 be retried. The Court takes the view that, in the absence of definitive find-
                 ings, adopted by a court at the close of a rigorous process, it can give no
                 evidential weight to the War Crimes Prosecutor’s indictment.

                    238. Croatia also invokes another document from domestic judicial
                 proceedings, namely the statement of Aleksandar Vasiljević, Chief of
                 Security in the Federal Secretariat for National Defence from 1 June 1991
                 to 5 August 1992, given to the Belgrade Military Court in 1999. In that
                 statement, Mr. Vasiljević mentions the fact that he was informed on
                 28 October 1991 not only of the “minefield massacre”, but also of the
                 execution of some 70 civilians in Lovas. The Court notes that this state-
                 ment was made by a former JNA officer to a Serbian court in the context
                 of a war crimes prosecution. Mr. Vasiljević also testified before the ICTY
                 during the trial of Slobodan Milošević. His testimony before that Tribu-
                 nal confirms his statement, in so far as he admits having been informed of
                 the “minefield massacre”. In the Court’s view, this statement has some
                 evidential weight.

                    239. In addition, Croatia relies on a documentary film produced by a
                 Serbian television channel, in which individuals are interviewed and offer
                 first‑hand accounts of the “minefield massacre”. Evidence of this kind
                 and other documentary material (such as press articles and extracts from
                 books) are merely of a secondary nature and may only be used to confirm
                 the existence of facts established by other evidence, as the Court has pre-
                 viously explained :
                        “[T]he Court regards them not as evidence capable of proving facts,
                     but as material which can nevertheless contribute, in some circum-
                     stances, to corroborating the existence of a fact, i.e., as illustrative
                     material additional to other sources of evidence.” (Military and Para‑
                     military Activities in and against Nicaragua (Nicaragua v. United States
                     of America), Merits, Judgment, I.C.J. Reports 1986, p. 40, para. 62.)
                 In the present case, the Serbian television documentary does corroborate
                 the evidence set out above.
                    240. Finally, the Court observes that Serbia does not deny that killings
                 were committed in Lovas, but contests their characterization under the
                 Convention (see paragraph 234 above). Taking all this evidence into
                 account, the Court finds that it is established that Croat civilians were
                 killed by the JNA and Serb forces in the village of Lovas between 10 Octo-
                 ber 1991 and the end of December 1991, although it is unable to deter-
                 mine their precise number.
                     (d) Dalj
                    241. According to the Applicant, a great number of Croats were killed
                 in Dalj, a village situated to the north of Vukovar in which approximately

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                 one-fifth of the population was of Croat ethnicity. Croatia first contends
                 that dozens of Croats died during the attack carried out by the JNA and
                 Serb paramilitary groups on 1 August 1991 : it alleges that civilians were
                 directly targeted and that Croatian combatants were executed after they
                 had surrendered. It further claims that several Croats captured at or
                 taken to Dalj were murdered by Serb forces in the autumn of 1991. In
                 response, Serbia states, as it does with respect to claims concerning other
                 localities, that the evidence presented by Croatia is insufficient to estab-
                 lish its allegations. Although the Respondent appears to accept that a
                 number of people were killed in Dalj, it argues that the Applicant has not
                 shown that these were acts of genocide.

                    242. The Court notes that Croatia relies on several individual state-
                 ments in order to establish its allegations. With respect to the killings
                 allegedly carried out on 1 August 1991, certain of the statements relied on
                 are not signed or confirmed ; the others do not appear to provide a
                 first‑hand account of the killings alleged. The Court concludes that Croa-
                 tia has not produced sufficient evidence to substantiate its claim that Cro-
                 ats were killed by the JNA and Serb forces on 1 August 1991.
                    With respect to the killings allegedly perpetrated later, in the autumn of
                 1991, the Court observes that the statement of B. I. was subsequently
                 confirmed by this individual. B. I. states that, after having surrendered on
                 21 November 1991, he was put on a truck with others and driven to Dalj.
                 On the way, 35 people were forced off the truck ; he then heard gunshots
                 and these people did not return. After having arrived in Dalj, he was
                 taken out to a mass grave, in which he saw “many corpses”, and watched
                 as other Croats in his group were shot and fell into the grave. He was
                 saved because the shots fired at him only hit his arm and an attempt to
                 slit his throat with a knife also failed. The Court considers that it can rely
                 on this statement by a person who provides a first‑hand account.

                    243. Croatia has also produced exhumation reports which indicate
                 that Croats, including Croatian combatants, were killed by firearms,
                 without, however, specifying the circumstances of their deaths.
                    244. The Court further notes that in the Stanišić and Simatović Trial
                 Judgment, currently under appeal on different grounds, the ICTY Trial
                 Chamber found that some of the alleged crimes had been committed in
                 this locality. In its Judgment, the Chamber concluded that, on or around
                 21 September 1991, members of a Serb paramilitary group killed ten peo-
                 ple held at the police building in Dalj, eight of whom were Croats (Stanišić
                 and Simatović Trial Judgment, paras. 419‑420 and 975). The Chamber
                 also found that 22 other detainees had been killed in this locality on 4 and
                 5 October 1991, and that 17 of those victims were Croat civilians (ibid.,
                 paras. 432 and 975).
                    245. The evidence presented by Croatia, considered in the light of the
                 findings of the ICTY in the Stanišić and Simatović Trial Judgment, is suf-
                 ficient for the Court to conclude that members of the protected group

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                 were killed by Serb forces in the village of Dalj between September and
                 November 1991.

                     Region of Western Slavonia

                       Voćin
                    246. Croatia claims that killings were committed by Serb forces against
                 Croats in the village of Voćin (Podravska Slatina municipality), in which
                 approximately one-third of the population was of Croat ethnicity. Rely-
                 ing on statements appended to its written pleadings, Croatia contends in
                 particular that at least 35 Croats were killed between 12 and 14 Decem-
                 ber 1991 by Serb forces driven out of Voćin.
                    247. For its part, Serbia argues that the crimes allegedly committed
                 throughout the Podravska Slatina municipality cannot be substantiated
                 by the evidence in the case file, in particular because that evidence consti-
                 tutes hearsay.
                    248. Croatia has referred to the statements appended to its written
                 pleadings in order to support its allegations. Most of these statements are
                 unsigned and were not otherwise confirmed ; they will not be considered
                 further. The Court observes that the statement of M. S. was subsequently
                 confirmed by this individual. However, her evidence as to the killing of
                 Croats by Serbs is hearsay. In particular, M. S. states that Serbs commit-
                 ted a massacre in Voćin on 13 December 1991, but she does not seem to
                 have personally witnessed the killing of Croats as she hid in a shelter
                 when the Serb forces attacked the Croats in the village. The Court finds
                 that this evidence is insufficient to establish the killing of Croats in this
                 locality.
                    249. In support of its allegation of a massacre in Voćin around
                 13 December 1991, Croatia also relies on the Report of a non‑govern-
                 mental organization, “Helsinki Watch”, sent to Slobodan Milošević and
                 General Blagoje Adžić on 21 January 1992 and based on investigations
                 carried out by that organization (hereinafter the “Helsinki Watch
                 Report”). According to the Report, Serb forces withdrawing from the vil-
                 lages of Hum and Voćin killed 43 Croats in December 1991. The Court
                 recalls that the value of such documents depends on the source of the
                 information contained therein, the process by which they were generated
                 and their quality or character (see paragraph 190 above). In this regard,
                 it notes that the basis for the report’s findings on the alleged killings in
                 Voćin is unclear, as it refers to unidentified eyewitnesses and autopsy
                 reports that are not appended. The Court therefore concludes that this
                 Report, on its own, is insufficient to prove Croatia’s allegations.

                   At the hearings, Croatia also presented audio‑visual materials (an
                 excerpt from a BBC documentary and photographs taken from a book)

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                 showing victims alleged to have been killed during this massacre. The
                 BBC documentary and photographs taken from the book Mass Killing
                 and Genocide in Croatia in 1991/92 : A Book of Evidence show several bod-
                 ies which are said to be the victims of the massacre at Voćin. As the Court
                 has previously explained (see paragraph 239 above), this kind of evidence
                 cannot, on its own, establish the facts alleged.
                    250. In the opinion of the Court, although the material before it raises
                 grounds for grave suspicions about what occurred at Voćin, Croatia has
                 not produced sufficient evidence to substantiate its claim that Croats were
                 killed by Serb forces in that locality in December 1991.

                     Region of Banovina/Banija

                       (a) Joševica
                    251. Croatia claims that several Croats were killed by Serb forces in
                 Joševica, a village situated in the Glina municipality and populated
                 almost exclusively by Croats. It states that Serb paramilitary forces killed
                 three villagers on 5 November 1991. On 16 December 1991, those Serb
                 forces are said to have returned to the village and searched the houses one
                 by one in order to slaughter Croat citizens ; 21 people were reportedly
                 killed in this way. According to the Applicant, the majority of Croats left
                 the village following these killings ; only ten stayed behind. Of those ten,
                 four were then killed in 1992. The remaining Croats then left the village.

                    252. Serbia repeats its general assertion regarding flaws in the state-
                 ments appended to Croatia’s written pleadings (see paragraph 192 above).
                 Serbia also states that the Applicant has not produced any detailed infor-
                 mation in support of its claim that killings were perpetrated in 1992.
                 Finally, it observes that no individual has been indicted or sentenced by
                 the ICTY for the alleged crimes.
                    253. Croatia relies on statements in order to substantiate its allega-
                 tions. Among them is that of Ms Paula Milić (pseudonym), who was
                 called for oral testimony and appeared before the Court. The Court notes
                 that, according to her statement, Ms Milić witnessed the killings commit-
                 ted on 5 November 1991 by Serb forces. This part of her statement was
                 not contested by Serbia. Moreover, it is corroborated by the statement of
                 I. S., who attests to having subsequently buried the three individuals
                 named by Ms Milić. For these reasons, the Court considers that Ms Milić’s
                 testimony has evidential weight.
                    254. With respect to the alleged killings on 16 December 1991, Croatia
                 provides a statement by A. S. Although this statement originally took the
                 form of a police record, it has subsequently been confirmed by A. S., and
                 the Court considers that it can give it evidential weight. A. S. describes
                 Serb forces in mottled uniforms entering her home on 16 December 1991
                 and firing shots at her and others. While suffering from gunshot wounds,

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                 she crawled on her knees from one grandchild to another and to her
                 cousin and she saw that they were all dead. A medical report is attached
                 to the statement, confirming her gunshot wounds. Her evidence of killings
                 on 16 December 1991 is corroborated by the statement of I. S., examined
                 in the previous paragraph.

                    255. Croatia also relies on the Helsinki Watch Report (see para-
                 graph 249 above). The relevant section of the Report describes the killing
                 of Croats by Serb forces in Joševica in mid‑December 1991. The ICTY
                 referred to it in its Judgment in the Martić case (Martić Trial Judgment,
                 para. 324, footnote 1002) before finding that Croats had been killed in the
                 SAO Krajina in 1991, but that does not give the Report value as such.
                 However, the Court notes that this Report confirms the evidence outlined
                 above.
                    256. In light of the foregoing, the Court concludes that Croatia has
                 established that Serb forces carried out killings of Croats in Joševica on
                 5 November 1991 and 16 December 1991. In contrast, Croatia has failed
                 to provide sufficient evidence that killings were committed in 1992, the
                 statements relied on in this regard being neither signed nor confirmed.

                     (b) Hrvatska Dubica and its surrounding area
                    257. Croatia claims that numerous Croats were killed by units of the
                 JNA and Serb forces in the Hrvatska Kostajnica municipality, notably
                 inhabitants of the villages of Hrvatska Dubica, Cerovljani and Baćin. In
                 particular, the Applicant alleges that, in October 1991, 60 ethnic Croats
                 from the surrounding villages were rounded up and held at the fire station
                 in Hrvatska Dubica. They were then executed by a firing squad in a
                 meadow close to Baćin and their bodies subsequently buried in a previ-
                 ously prepared mass grave.

                    258. In response, Serbia disputes the probative value of the evidence
                 produced by Croatia. It notes, however, the conclusions of the ICTY
                 Trial Chamber in the Martić case, in which it was found that a number of
                 killings of Croats had taken place in this area.
                    259. The Court notes that several of the crimes whose perpetration has
                 been alleged by the Applicant have been examined by the Chambers of
                 the ICTY. In its Judgment rendered on 12 June 2007 in the Martić case,
                 the Trial Chamber concluded that 41 civilians (the large majority Croats)
                 from Hrvatska Dubica were executed on 21 October 1991 by Serb forces
                 (Martić Trial Judgment, paras. 183, 354, 358). The Trial Chamber further
                 found that nine civilians from Cerovljani and seven civilians from Baćin
                 were executed on or around 20‑21 October 1991 by the JNA or Serb
                 forces, or a combination thereof, and that a further 21 inhabitants of
                 Baćin were killed during the month of October 1991 by the JNA or Serb
                 forces, or a combination thereof (Martić Trial Judgment, paras. 188‑191,

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                 359, 363‑365, 367). The ICTY Trial Chamber in the Stanišić and Simatović
                 case reached the same conclusions concerning the victims from
                 Hrvatska Dubica and Cerovljani (Stanišić and Simatović Trial Judgment,
                 paras. 56‑64 and 975).
                    260. These findings substantiate the evidence presented by Croatia
                 before the Court. In particular, Croatia has produced the statement made
                 before a Croatian court by Mr. Miloš Andrić (pseudonym), whom it
                 called for oral testimony but whom Serbia did not wish to cross‑examine.
                 In his statement, Mr. Andrić indicates in particular that, following the
                 Baćin massacre, he was present in person during the identification of the
                 bodies in the mass grave ; he states that civilians had been heaped in the
                 grave, all crumpled, and that many of them had been beaten to death,
                 struck on the head by blunt instruments.
                    261. The Court concludes that a significant number of Croat civilians
                 were killed by the JNA and Serb forces in Hrvatska Dubica and its sur-
                 rounding area during October 1991.
                     Region of Kordun

                       Lipovača
                      262. The Applicant alleges that the JNA seized the Croat‑majority
                 v illage of Lipovača at the end of September or the beginning of Octo-
                  ber 1991, causing most of its inhabitants to flee ; only 16 Croats remained.
                  It claims that seven Croat civilians were then killed by Serb forces on
                  28 October 1991, which led to the departure of a further four Croats from
                  the village. According to Croatia, the five remaining Croats were subse-
                  quently killed on 31 December 1991. The Applicant points out that the
                 ICTY Trial Chamber in the Martić case examined in detail the events
                  which took place in Lipovača and concluded that seven Croat civilians
                  had been killed by Serb forces at the end of October 1991 (Martić Trial
                  Judgment, paras. 202‑208).
                      263. The Respondent concedes that the ICTY’s Judgment in the
                  Martić case confirmed the killing of seven civilians by Serb paramilitary
                  forces in Lipovača at the end of October 1991. It maintains, however,
                  that the other alleged crimes have not been convincingly established.
                      264. The Court notes that the ICTY has examined the Lipovača kill-
                  ings in two judgments. In the Martić Trial Judgment, the Trial Chamber
                  found that the seven individuals alleged by the Applicant to have been
                  killed on 28 October 1991 had indeed been executed in Lipovača on or
                  around that date after the arrival of Serb forces. It held that there was
                  direct evidence of the Croat ethnicity of three of the victims and deduced
                  from all the evidence available to it that the other four victims were also
                  Croats (ibid., para. 370). However, in the Stanišić and Simatović case, the
                  Trial Chamber concluded that the Croat ethnicity of only three of the
                  victims had been established (Stanišić and Simatović Trial Judgment,
                  para. 67).

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                    265. In respect of the killings allegedly committed in December 1991,
                 the Martić Trial Chamber found that the five persons named by the
                 Applicant had been killed at some point during the occupation of the vil-
                 lage by Serb forces, although the accused was not convicted of those kill-
                 ings because they were not listed in the indictment (Martić Trial Judgment,
                 footnote 555). The Stanišić and Simatović Trial Chamber also concluded
                 that those five individuals had been killed in Lipovača, but added that it
                 could not determine who had committed these killings, and did not con-
                 sider them any further (Stanišić and Simatović Trial Judgment, para. 68).
                 In neither of these cases did the Trial Chamber rule on the ethnicity of the
                 victims.

                    266. The only statement produced by Croatia in support of its allega-
                 tion relating to the killings of 31 December 1991 is based on hearsay and
                 does not, in the opinion of the Court, make it possible for the existence of
                 the facts in question to be established. Consequently, the Court is unable
                 to uphold the Applicant’s claim that five Croats were killed on 31 Decem-
                 ber 1991.
                    267. The Court deduces however from the foregoing that it has been
                 established that Serb forces killed at least three Croats on 28 October
                 1991 in Lipovača.
                     Region of Lika

                       (a) Saborsko
                    268. The Applicant states that the village of Saborsko, situated in the
                 Ogulin municipality and populated predominantly by Croats, was sur-
                 rounded and shelled by Serb paramilitary forces from the beginning of
                 August 1991 until 12 November of the same year, when it was attacked
                 by combined JNA and Serb paramilitary forces. According to Croatia,
                 following aerial bombardments and sustained artillery and mortar fire,
                 the JNA and Serb paramilitaries entered the village and began destroying
                 property belonging to Croats and killing the remaining civilian popula-
                 tion. Croatia points out that, in the Martić and Stanišić and Simatović
                 cases, the ICTY examined in detail the events which took place in Sabor-
                 sko.
                    269. Serbia recognizes that “most of the acts alleged to have taken
                 place in Saborsko have been confirmed by the judgment[s] of the ICTY” ;
                 it adds, however, that they were not committed with genocidal intent.
                    270. Since Serbia does not dispute the existence of the alleged facts to
                 the extent that they have been established before the ICTY, the Court will
                 refer to the ICTY’s conclusions. Thus, the Trial Chamber in the Martić
                 case concluded that 20 people had been killed by the JNA and Serb forces
                 on 12 November 1991, at least 13 of whom were civilians not taking an
                 active part in the hostilities at the time of their death. The Chamber fur-

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                 ther found that the killings had been carried out with intent to discrimi-
                 nate on the basis of Croat ethnicity (Martić Trial Judgment, paras. 233‑234,
                 379 and 383). In the Stanišić and Simatović case, the Trial Chamber con-
                 firmed the killings of nine Croats in Saborsko on 12 November 1991 by
                 the JNA and Serb forces, but noted that it had received insufficient evi-
                 dence on the circumstances in which the other 11 persons had been killed
                 (Stanišić and Simatović Trial Judgment, paras. 102‑107, 975). The Court
                 also notes that certain statements produced by Croatia corroborate the
                 findings of the ICTY.

                    271. In light of the foregoing, the Court concludes that it has been
                 established that the JNA and Serb forces killed several Croats in Sabor-
                 sko on 12 November 1991.
                     (b) Poljanak
                    272. Croatia claims that in 1991, the village of Poljanak (Titova Kore-
                 nica municipality) had 160 inhabitants, 145 of whom were Croats. In the
                 autumn of 1991, numerous Croat civilians from the village were allegedly
                 killed by the JNA and Serb forces.
                    273. The Applicant relies in particular on the factual findings of the
                 ICTY Trial Chamber in the Martić Judgment (Martić Trial Judgment,
                 paras. 211‑213 and 216‑219) in claiming that, between September and
                 November 1991, several attacks were carried out against civilians in Pol-
                 janak and its hamlet Vukovići.

                    274. Serbia acknowledges that, in the Martić Judgment, the ICTY
                 Trial Chamber confirmed that a number of killings had been committed
                 in Poljanak.
                    275. The Court observes that several of the crimes whose perpetration
                 is alleged by the Applicant were examined by the ICTY Trial Chamber in
                 its Martić Judgment. In particular, that Chamber concluded that :

                 — one Croat civilian had been killed on 8 October 1991 by the JNA and
                   armed inhabitants (ibid., paras. 212, 371, 377) ;
                 — on or around 14 October 1991, two Croat civilians had been found
                   hanged in their homes, although it was not clear from the evidence
                   whether these men had been murdered or committed suicide (ibid.,
                   para. 212 and footnote 566) ;
                 — on 7 November 1991, seven Croat civilians had been lined up and
                   executed by the JNA and armed inhabitants at the house of
                   Nikola “Sojka” Vuković, while the latter had been shot from the win-
                   dow while he was lying sick in his bed (ibid., paras. 214, 371, 377) ;
                 — finally, also on 7 November 1991, 20 Serb soldiers had surrounded a
                   family home in Poljanak and then shot two Croat men, having sepa-
                   rated them from the women and a boy (ibid., paras. 216‑218, 372,
                   377).

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                   276. The Court also notes that the Appeals Chamber in the Martić
                 case concluded that the perpetrators of three of these murders (that com-
                 mitted on 8 October 1991 and the murders of two men on 7 Novem-
                 ber 1991) could not be identified with certainty and thus acquitted the
                 accused of those crimes (IT‑95‑11‑A, Judgment of 8 October 2008,
                 paras. 200‑201). However, it upheld the finding that the accused was
                 responsible for the massacre of eight Croats on 7 November 1991 by the
                 JNA and armed inhabitants (ibid., paras. 204‑206). Subsequently, the
                 Trial Chamber in the Stanišić and Simatović case also concluded that the
                 said massacre had been established (Stanišić and Simatović Trial Judg-
                 ment, paras. 85 and 975). The Court notes that the ICTY’s findings are
                 not contested by Serbia. Consequently, it does not deem it necessary to
                 examine the other evidence produced by Croatia, in particular the state-
                 ments appended to its written pleadings.
                   277. The Court deduces from the foregoing that it has been established
                 that several killings were perpetrated by the JNA and Serb forces in Pol-
                 janak against members of the protected group in November 1991.
                     Region of Dalmatia

                       (a) Skabrnja and its surrounding area
                   278. Croatia claims that, on 18 and 19 November 1991, the JNA and
                 Serb forces killed dozens of Croat civilians in Skabrnja and the neigh-
                 bouring village of Nadin, both located in the Zadar municipality of Dal-
                 matia, and populated almost exclusively by ethnic Croats.

                    279. The Applicant alleges that, throughout September and Octo-
                 ber 1991, Skabrnja and Nadin were subjected to mortar fire and aerial
                 bombardments with no military justification. It claims that, following the
                 deaths of three civilians at the start of October, the majority of Skabrnja’s
                 inhabitants had been evacuated ; most, however, had returned after a
                 ceasefire agreement was signed on 5 November 1991. Croatia asserts that,
                 in breach of that agreement, the JNA and Serb forces launched a full‑scale
                 aerial and ground assault on the two villages on 18 and 19 November
                 1991. According to the Applicant, after intensive shelling, infantry troops
                 and heavily armed paramilitaries invaded Skabrnja ; JNA tanks fired on
                 houses, the school and a church, while Serb forces fired rocket launchers
                 at dwellings.

                    280. Croatia maintains that, after occupying Skabrnja and Nadin,
                 Serb forces attacked Croat civilians. It claims that those forces killed
                 civilians who had hidden in the basements of their houses during the
                 fighting. In particular, the Applicant invokes, in support of its allega-
                 tions, the factual findings of the ICTY in the Martić and Stanišić and
                 Simatović cases, pointing out that the Tribunal ruled that there had been
                 a number of killings of Croat civilians in Skabrnja and Nadin.

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                    281. In response to the accusations made against it, Serbia does not
                 deny that crimes were perpetrated in the two above‑mentioned villages. It
                 accepts that atrocities were committed against the civilian population and
                 admits that the majority of the killings alleged by the Applicant have
                 been confirmed by the ICTY’s Trial Judgment in the Martić case. The
                 Respondent argues, however, that fierce fighting occurred before the JNA
                 and Serb forces entered the village of Skabrnja, resulting in heavy losses
                 to those forces, and that some Croatian combatants were dressed in civil-
                 ian clothing.
                    282. Croatia bases its allegations on the statement of Mr. Ivan Krylo
                 (pseudonym), whom it called for oral testimony. Mr. Krylo appeared
                 before the Court and was cross‑examined by Serbia at a closed hearing
                 (see paragraph 46 above). The Court notes that, in his written statement,
                 Mr. Krylo states that a number of people had taken shelter in the base-
                 ments of their homes during the fighting which took place in Skabrnja on
                 the morning of 18 November 1991, and that, after invading the village,
                 the JNA and Serb forces flushed those people out and shot several of
                 them. Mr. Krylo further claims that he was taken prisoner along with
                 other villagers, and detained and subjected to violence over the course of
                 the following months. The Court notes that Serbia did not dispute that
                 killings had been perpetrated against the inhabitants of Skabrnja. During
                 Mr. Krylo’s cross‑examination, its questions focused on the fighting that
                 preceded the capture of the village. The Respondent even accepted that
                 “when the town surrendered to the Serb forces, there were atrocities com-
                 mitted on civilians”.

                    283. The Court next observes that, in the Martić case, the Trial Chamber
                 noted that around 50 people had been murdered by the JNA and Serb forces
                 in Skabrnja and the surrounding villages, including Nadin, on 18 and
                 19 November 1991, observing that “the majority of the victims in
                 Skabrnja . . . were of Croat ethnicity” (Martić Trial Judgment, paras. 386‑
                 391, 398) ; the Tribunal also found that 18 civilians had been murdered by
                 the JNA and Serb forces in Skabrnja between 18 November 1991 and
                 11 March 1992 (ibid., para. 392). The Court further observes that, in the
                 Stanišić and Simatović case, the Trial Chamber held that 37 Croats had been
                 murdered in Skabrnja on 18 November 1991 by the JNA and Serb forces
                 (Stanišić and Simatović Trial Judgment, paras. 131‑136, 975).
                    284. In light of the foregoing, the Court concludes that it has been
                 established that killings were perpetrated by the JNA and Serb forces in
                 Skabrnja and Nadin against members of the protected group between
                 18 November 1991 and 11 March 1992.
                     (b) Bruška
                    285. The Applicant alleges that, on 21 December 1991, Serb paramili-
                 taries killed nine Croats in the village of Bruška, in the Benkovac muni
                 cipality, which had a population that was approximately 90 per cent

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                 Croat. It adds that another Croat was murdered in June 1992. The Appli-
                 cant points out that, in the Martić case, the ICTY Trial Chamber exam-
                 ined in detail the events which took place in Bruška and concluded that
                 the nine individuals named had been killed on 21 December 1991 by the
                 Krajina militia (Milicija Krajine). The Chamber further concluded that
                 those individuals were all civilians, not taking an active part in the hos-
                 tilities at the time of their death, and that the killings had been carried out
                 with intent to discriminate on the basis of Croat ethnicity (Martić Trial
                 Judgment, paras. 400 and 403).
                    286. The Respondent accepts that the Martić Trial Chamber examined
                 the events which took place in the Benkovac municipality and found that
                 nine Croats had been killed in Bruška. It maintains, however, that the
                 allegations concerning other crimes are not supported by sufficient evi-
                 dence.
                    287. In respect of the killings of 21 December 1991, the Court finds, in
                 light of the foregoing, that it has been conclusively established that the
                 nine individuals named by the Applicant were killed on that day by the
                 Milicija Krajine, and that those individuals are the same as those listed in
                 the Judgment rendered by the ICTY in the Martić case, referred to above,
                 and in the Stanišić and Simatović case (Stanišić and Simatović Trial Judg-
                 ment, paras. 145‑147).
                    288. With regard to the killing alleged to have been perpetrated in
                 June 1992, the Court observes that this was not examined by the Trial
                 Chamber in either the Martić case or the Stanišić and Simatović case. Fur-
                 thermore, it notes that the statement produced by Croatia in support of this
                 claim does not constitute a first‑hand account of the events in question. In
                 the Court’s view, the Applicant has not proved that this killing took place.
                      (c) Dubrovnik
                    289. The Applicant claims that numerous Croat civilians were killed
                 by the JNA in or around Dubrovnik, a town where 80 per cent of the
                 population was of Croat origin. It states that, on 1 October 1991, the
                 JNA instituted a blockade of Dubrovnik from land, sea and air, and that
                 civilians were given an opportunity to leave the town at the end of that
                 month. Thereafter, according to Croatia, all supplies were cut off and the
                 town was bombarded with heavy artillery until the end of the year. The
                 Applicant claims that 123 civilians from Dubrovnik were killed during
                 the course of these events.
                    290. For its part, the Respondent argues that the evidence submitted
                 by the Applicant cannot substantiate its allegations, because it is either
                 inadmissible or it has no probative value. It also points out that the
                 crimes allegedly committed in Dubrovnik were examined by two ICTY
                 Trial Chambers in the Jokić and Strugar cases, and that those Chambers
                 concluded that there had been a limited number of civilian victims.
                    291. The Court notes that only one of the statements produced on the
                 subject of this locality describes a death which could be categorized as a

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                 killing within the meaning of Article II (a) of the Convention. This state-
                 ment is not a first‑hand account however and is insufficient, on its own,
                 to prove Croatia’s allegations.
                    292. The Applicant also has presented letters from the Croatian police
                 in support of its claim regarding the number of victims. The Court
                 observes that these were drawn up specifically for the purposes of the
                 present case. As the Court has had occasion to observe in the past, it “will
                 treat with caution evidentiary materials specially prepared for th[e] case
                 and also materials emanating from a single source” (Armed Activities on
                 the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
                 Judgment, I.C.J. Reports 2005, p. 201, para. 61). Furthermore, these let-
                 ters do not indicate the circumstances in which the 123 supposed victims
                 were killed, nor whether they were Croats. As regards the other docu-
                 ments prepared by the Dubrovnik Police Department, although drawn up
                 at the time of the events and not solely for the purposes of this case, they
                 have not been corroborated by evidence from an independent source and
                 appear only to refer to two deaths which might be categorized as killings
                 within the meaning of Article II (a).
                    293. In the Jokić and Strugar cases, it was established before the ICTY
                 that two civilians had been killed during the unlawful shelling of the old
                 town on 6 December 1991 (Jokić, IT‑01‑42/1‑S, Trial Chamber, Senten
                 cing Judgment of 18 March 2004, para. 27 ; Strugar, IT‑01‑42‑T, Trial
                 Chamber, Judgment of 31 January 2005 (hereinafter “Strugar Trial Judg-
                 ment”), paras. 248, 250, 256, 259 and 289). In the Strugar case, the ICTY
                 also found that at least one individual had been killed during the shelling
                 of the town on 5 October 1991 (ibid., para. 49).
                    294. The Court concludes from the foregoing that it has been estab-
                 lished that some killings were perpetrated by the JNA against the Croats
                 of Dubrovnik between October and December 1991, although not on the
                 scale alleged by Croatia.

                     Conclusion
                    295. On the basis of the facts set out above, the Court considers it
                 established that a large number of killings were carried out by the JNA
                 and Serb forces during the conflict in several localities in Eastern Slavo-
                 nia, Banovina/Banija, Kordun, Lika and Dalmatia. Furthermore, the evi-
                 dence presented shows that a large majority of the victims were members
                 of the protected group, which suggests that they may have been system-
                 atically targeted. The Court notes that while the Respondent has con-
                 tested the veracity of certain allegations, the number of victims and the
                 motives of the perpetrators, as well as the circumstances of the killings
                 and their legal categorization, it has not disputed the fact that members
                 of the protected group were killed in the regions in question. The Court
                 thus finds that it has been proved by conclusive evidence that killings of
                 members of the protected group, as defined above (see paragraph 205),
                 were committed, and that the actus reus of genocide specified in Arti-

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                             application of genocide convention (judgment)                 99

                 cle II (a) of the Convention has therefore been established. At this stage
                 of its reasoning, the Court is not required to draw up a complete list of
                 the killings carried out, nor to make a conclusive finding as to the total
                 number of victims.

                 (3) Article II (b) : causing serious bodily or mental harm to members of the
                      group
                    296. Croatia alleges that the JNA and Serb forces also inflicted serious
                 bodily harm on Croats. Such harm is alleged to have taken the form of
                 physical injury, ill‑treatment and acts of torture, rape and sexual violence.
                 Moreover, Serbia’s failure to co‑operate in the process of tracing and
                 identifying missing persons is alleged to have caused their surviving rela-
                 tives psychological pain constituting serious mental harm.

                   297. The Court will examine in turn Croatia’s allegations concerning
                 the various localities where acts causing serious bodily or mental harm to
                 members of the protected group were allegedly perpetrated, after which it
                 will address the alleged infliction of mental harm on the relatives of miss-
                 ing persons.

                     Region of Eastern Slavonia

                       (a) Vukovar
                    298. Croatia claims that, between August and December 1991 at Vuk-
                 ovar, the JNA and Serb forces injured Croat civilians and prisoners of
                 war, subjected them to ill‑treatment and torture, and also committed rape
                 and sexual violence. For the purposes of the Court’s analysis, Croatia’s
                 claims will be examined successively by reference to the various phases of
                 the battle for Vukovar.

                         (i) The shelling of Vukovar
                   299. Croatia claims that, during the shelling of Vukovar by the JNA
                 between 25 August and 18 November 1991, large numbers of Croat civil-
                 ians were injured. According to Serbia, the only reason that the ICTY
                 found the attack on Vukovar to have been unlawful was that it was partly
                 directed against civilians. However, Serbia argues that the attack must be
                 considered in the wider context of a lawful military operation against the
                 Croatian armed forces.
                   300. The Court recalls that, in the Mrkšić et al. case, the ICTY found
                 that large numbers of civilians had been injured by the JNA and Serb
                 forces during the siege of Vukovar (Mrkšić Trial Judgment, para. 472,
                 reproduced in paragraph 218 above).

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                            application of genocide convention (judgment)               100

                   301. The Court regards the Tribunal’s factual findings as sufficient to
                 confirm that, during the attack on Vukovar and the surrounding area, the
                 JNA and Serb forces injured a large number of Croat civilians, without it
                 being necessary to determine their exact number.

                        (ii) The capture of Vukovar and its surrounding area
                    302. Croatia claims that, during the capture of Vukovar and the sur-
                 rounding area, which took place between mid‑September and mid‑Novem-
                 ber 1991, the JNA and Serb forces perpetrated acts of ill‑treatment,
                 torture and rape against Croat civilians. They are also alleged to have
                 deported Croat civilians to camps located in Serbia, where they were sub-
                 jected to torture and ill‑treatment.
                    303. Serbia disputes Croatia’s allegations. It argues that they are
                 unfounded, and that the statements presented by Croatia are mere hear-
                 say and lack precision.
                    304. The Court notes that Croatia’s allegations rely essentially on
                 statements that were either signed or subsequently confirmed. Although
                 some of these statements were made several years after the events in ques-
                 tion, they are by victims or eyewitnesses of acts of ill‑treatment, torture
                 and rape. The Court gives evidential weight to these statements.

                     305. Accordingly, the Court finds that Croatia has shown that acts of
                 ill‑treatment, torture and rape were perpetrated against Croats by the
                 JNA and Serb forces during the capture of Vukovar and the surrounding
                 area.

                        (iii) The invasion of Vukovar hospital and the transfers to Ovčara
                               and Velepromet camps
                    306. Croatia alleges that, on 19 and 20 November 1991, the JNA and
                 Serb forces invaded the hospital at Vukovar where Croats had taken ref-
                 uge and subsequently transferred them to camps at Ovčara and Vele-
                 promet, where they were ill‑treated and tortured. Croatia further alleges
                 that Croat women were raped at Velepromet.
                    307. Serbia admits that crimes were committed at Ovčara by Serb
                 forces. However, it points out that, in the Mrkšić et al. case, the accused
                 were not prosecuted for genocide, and that the ICTY characterized the
                 crimes in question as war crimes.
                    308. Regarding the events at Ovčara, the Court notes that Serbia does
                 not dispute that they took place. In the Mrkšić et al. case, the ICTY made
                 the following findings on those events :
                       “530. The Chamber is persuaded and finds that the beatings of
                     prisoners of war from Vukovar hospital outside the hangar on
                     20 November 1991 were well capable of inflicting severe physical pain,
                     and in very many cases they did so. They constitute the actus reus of
                     torture. The Chamber is also satisfied that the acts of grave and per-

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                               application of genocide convention (judgment)                                                    101

                     sistent mistreatment to so many prisoners that occurred inside the
                     hangar during the afternoon of 20 November 1991 were such as to
                     constitute the actus reus of torture.

                         531. Turning to the mens rea requisite for the offence of torture the
                     Chamber refers to the nature and duration of the beatings, the imple-
                     ments used by the perpetrators to inflict suffering, the number of per-
                     sons attacking individual victims, the verbal threats and abuse
                     occurring simultaneously with the beatings, and the terribly threaten-
                     ing atmosphere in which the victims were detained as they were
                     beaten. All these factors indicate that the beatings outside and in the
                     hangar were carried out intentionally
                     �����������������������������������������������������������������������������������������������������������������
                         536. Further, the Chamber is persuaded and finds that the beatings
                     of prisoners of war from Vukovar hospital outside and inside the
                     hangar on 20 November 1991 constitute the actus reus of cruel treat-
                     ment. The Chamber is satisfied that these beatings were carried out
                     with the requisite mens rea to constitute cruel treatment

                     �����������������������������������������������������������������������������������������������������������������
                         538. With respect to the mens rea requisite for cruel treatment, the
                     Chamber accepts that in keeping the prisoners under constant threat
                     of beatings and physical abuse, in creating an atmosphere of fear, in
                     depriving the prisoners of food and water as well as toilet facilities,
                     the direct perpetrators acted with the intent to cause physical suffer-
                     ing, or an affront to the detainees’ human dignity, or in the knowledge
                     that cruel treatment was a probable consequence of their acts, or with
                     all or some of these intents. The Chamber finds that the intent requi-
                     site for cruel treatment has been established.” (Mrkšić Trial Judg-
                     ment, paras. 530, 531, 536 and 538.)
                    309. The Court notes that Serbia does not dispute the existence of the
                 facts found by the ICTY. It considers that the Tribunal’s findings are suf-
                 ficient to establish that acts of ill‑treatment and torture were perpetrated
                 against Croats by certain members of the JNA and Serb forces at Ovčara.

                    310. Regarding the events at Velepromet, Croatia has produced a
                 statement by Mr. Franjo Kožul, who appeared before the Court, and to
                 whose testimony the Court has already given evidential weight (see para-
                 graph 222 above). Mr. Kožul described scenes of ill‑treatment. His testi-
                 mony is corroborated by the findings of the ICTY in the Mrkšić et al.
                 case. Although these facts were not referred to in the indictment, the Trial
                 Chamber found that
                     “on 19 November 1991 some hundreds of non‑Serb people were taken
                     from the Vukovar hospital and transferred to the facility of Velepro-
                     met by Serb forces. Others arrived at Velepromet from elsewhere. At

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                            application of genocide convention (judgment)               102

                     Velepromet these people were separated according to their ethnicity
                     and suspicion of involvement in the Croatian forces. The Chamber
                     finds it established that interrogations of some of these people were
                     conducted at Velepromet in the course of which the suspects were
                     beaten, insulted or otherwise mistreated. A number of them were shot
                     dead at Velepromet, some of them on 19 November 1991. The Cham-
                     ber finds that many, if not all, of the persons responsible for the
                     brutal interrogations and killings were members of the Serb TO or
                     paramilitary units.” (Mrkšić Trial Judgment, para. 167.)

                   Croatia has also produced a statement of an individual, B. V., who was
                 taken from Velepromet to the JNA barracks and raped by five men. The
                 Court considers that it must give this statement evidential weight.

                   311. The Court finds that Croatia has shown that acts of ill‑treatment
                 and rape were perpetrated against Croats by Serb forces at Velepromet.

                     (b) Bapska
                     312. Croatia claims that, from October 1991, the JNA and Serb forces
                 perpetrated acts of ill‑treatment and torture against the Croat inhabitants
                 of Bapska, a village located 26 km south‑east of Vukovar, with a popula-
                 tion some 90 per cent of whom were Croats. The JNA and Serb forces
                 also allegedly committed rape and other acts of sexual violence. Croatia
                 has produced a number of statements in support of its allegations.
                     313. Serbia disputes the probative value of those statements.
                     314. Among the items produced by Croatia, the Court notes the signed
                 statement of F. K., as well as those of A. S., J. K. and P. M., which were
                 subsequently confirmed. The authors of those statements are victims of
                 ill‑treatment, as well as rape and other acts of sexual violence. The Court
                 considers that it must give these statements evidential weight.
                     315. The Court accordingly finds that Croatia has established that,
                 from October 1991 to January 1994 at Bapska, the JNA and Serb forces
                 subjected members of the protected group to acts of ill‑treatment and
                 committed rape and other acts of sexual violence.

                     (c) Tovarnik
                     316. Croatia claims that, from September 1991 and continuing
                 throughout the year 1992, the JNA and Serb forces perpetrated acts of
                 ill‑treatment, torture and sexual violence (including rape and castration)
                 against Croats in the village of Tovarnik, located south‑east of Vukovar
                 and having a majority Croat population, and that Croats were trans-
                 ferred to Begejci camp, where they were tortured.

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                            application of genocide convention (judgment)                103

                     317. Serbia contends that Croatia has failed to prove the perpetration
                 of such acts at Tovarnik. It disputes the probative value of the statements
                 produced by Croatia in support of its allegations.
                     318. The Court notes that Croatia mainly bases its allegations on state-
                 ments appended to its written pleadings. The Court considers that it can
                 give credence to several signed or confirmed statements. These statements
                 were made by victims of acts of ill‑treatment, or by persons having wit-
                 nessed such acts, as well as acts of sexual violence perpetrated against
                 Croats at Tovarnik.
                     319. The Court accordingly finds that Croatia has shown that acts of
                 ill‑treatment and sexual violence were perpetrated against Croats by the
                 JNA and Serb forces at Tovarnik, in or around the month of Septem-
                 ber 1991. It finds in contrast that the allegations of rape have not been
                 established.

                     (d) Berak
                     320. Croatia alleges that, between September and December 1991, the
                 JNA and Serb forces perpetrated acts of ill‑treatment against the Croat
                 inhabitants of the village of Berak, located some 16 km from Vukovar
                 and having a majority Croat population, and that those forces established
                 a prison camp in the village, where Croats were allegedly tortured. Sev-
                 eral instances of rape are also alleged.
                     321. Serbia maintains that Croatia has failed to provide sufficient evi-
                 dence of the acts alleged by it. It contends that the statements produced by
                 Croatia lack probative value. It further points out that the ICTY has not
                 prosecuted or convicted any individuals for crimes committed at Berak.
                     322. Croatia bases its allegations on statements appended to its written
                 pleadings. The Court considers that it can give credence to several state-
                 ments which have been confirmed subsequently. These are accounts by
                 victims of acts of ill‑treatment or rape, or by individuals who witnessed
                 such acts.
                     323. Croatia has also produced a report prepared by Stanko Penavić,
                 Deputy Defence Commander of Berak at the time of the events in ques-
                 tion, concerning the 87 persons held at Berak between 2 October and
                 1 December 1991. That report lists individuals injured or raped and cor-
                 roborates the previous evidence.
                     324. The Court accordingly finds that Croatia has shown that acts of
                 ill‑treatment and rape were perpetrated against members of the protected
                 group by Serb forces and the JNA at Berak between September and
                 October 1991.

                     (e) Lovas
                   325. Croatia alleges that Serb forces perpetrated acts of torture, as well
                 as rape and other acts of sexual violence against Croats in the village of
                 Lovas between October 1991 and December 1991. Croats are also alleged

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                            application of genocide convention (judgment)                104

                 to have been injured during the “minefield massacre” (see paragraph 233
                 above).
                    326. Serbia has disputed the probative value of the statements pre-
                 sented by Croatia, but admits that the suspected perpetrators of some of
                 the acts alleged by Croatia are being prosecuted before Serbian courts. It
                 argues, however, that these were not acts of genocide, but rather war
                 crimes or crimes against humanity.
                    327. In support of its allegations, Croatia relies on the indictment pre-
                 pared by the War Crimes Prosecutor for the Belgrade District Court,
                 issued against 14 Serbs accused, inter alia, of ill‑treatment and torture of
                 Croat civilians at Lovas, to which the Court has already found that it
                 cannot give any evidential weight in itself (see paragraph 237 above).

                     328. Croatia also relies on a number of statements, in particular that
                 of Stjepan Peulić, a witness whom Serbia did not wish to cross‑examine
                 (see paragraph 25 above), to whose statement the Court has already given
                 evidential weight (see paragraph 236 above). Mr. Peulić describes the
                 ill‑treatment suffered by him at the hands of Serb forces. Croatia also
                 produces a statement by another victim of ill‑treatment by Serb forces, to
                 which the Court also gives evidential weight.

                    Regarding the allegations of rape, one of the statements is from an
                 individual alleged to have been raped by a member of Serb forces, but it
                 is neither signed nor confirmed. The Court considers that it cannot give it
                 evidential weight. Another statement refers to rape of Croat women by
                 Serb forces, but its author did not witness the events at first hand. The
                 Court cannot give this statement any evidential weight.
                    329. Croatia further relies on a documentary film produced by a Ser-
                 bian television channel, which includes descriptions of the “minefield
                 massacre”. While a documentary of this kind cannot in itself serve to
                 prove the facts alleged (see paragraph 239 above), it does corroborate the
                 previous evidence with respect to the allegations of ill‑treatment.

                    330. In light of the foregoing, the Court finds that Croatia has estab-
                 lished that acts of ill‑treatment were perpetrated against members of the
                 protected group by Serb forces at Lovas between October and Decem-
                 ber 1991. It considers that the allegations of rape and other acts of sexual
                 violence have not been proved.

                     (f) Dalj
                     331. Croatia alleges that, following the occupation of the village of
                 Dalj by the JNA as from 1 August 1991, Serb forces perpetrated acts of
                 ill‑treatment and torture against Croat civilians, and that Croat soldiers
                 and civilians captured during the hostilities at Vukovar were transferred
                 to Dalj, where they were tortured and raped.

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                             application of genocide convention (judgment)              105

                    332. Serbia maintains that Croatia has failed to provide sufficient evi-
                 dence of the facts which it alleges. It disputes the probative value of the
                 statements produced by Croatia.
                    333. The Court notes that Croatia’s allegations are based on state-
                 ments by individuals. It observes that some of these are unsigned and
                 were taken by the Croatian police, and cannot be relied on by the Court,
                 for the reasons set out previously (see paragraph 198 above). Another
                 statement was made by a victim of ill‑treatment. It seems to have been
                 made before a court in domestic judicial proceedings. However, it is nei-
                 ther signed, nor confirmed. The Court cannot give it any evidential
                 weight. On the other hand, some statements were signed or subsequently
                 confirmed. They are by victims of ill‑treatment. The Court considers that
                 it must give them evidential weight.

                   334. The Court notes that, in the Stanišić and Simatović case, the ICTY
                 Trial Chamber found that
                       “following the take‑over of Dalj, civilians, policemen, as well as a
                       person called Dafinić, who the Trial Chamber elsewhere found was
                       an SNB member . . . engaged in looting of houses. In August 1991,
                       Croats, including Zlatko Antunović, and Hungarians were detained
                       by Milorad Stričević and the TO at the Dalj police station and were
                       beaten by members of the SDG. In September 1991, the detainees of
                       the Dalj police station were forced to engage in manual labour and
                       were further beaten by the aforementioned. Members of the Prigre
                       vica paramilitaries also participated in the beatings.” (Stanišić and
                       Simatović Trial Judgment, para. 528 ; reference omitted.)

                   335. The Court considers that these findings of the ICTY corroborate
                 the statements produced by Croatia. The Court accordingly finds that
                 Croatia has proved that, following the capture of Dalj in August 1991,
                 Serb forces perpetrated acts of ill‑treatment against Croats. On the other
                 hand, it finds that the allegations of rape have not been proved.

                     Region of Western Slavonia

                       (a) Kusonje
                   336. Croatia claims that, on 8 September 1991, a group of Croat sol-
                 diers was ambushed and took refuge in the village of Kusonje, where they
                 were captured and then tortured by Serb forces, before being killed.

                   337. Serbia disputes the probative value of the evidence produced by
                 Croatia, and moreover observes that no individual has been prosecuted
                 or convicted by the ICTY on account of acts committed at Kusonje.

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                            application of genocide convention (judgment)                106

                    338. In support of its allegations, Croatia relies on two statements
                 taken by the Croatian police, which are not signed or otherwise confirmed
                 by the individuals allegedly having made these statements. The Court
                 cannot give evidential weight to these statements.
                    339. The other evidence produced by Croatia consists of a list of dead
                 civilians in the municipality of Pakrac and a video showing the exhuma-
                 tion of a mass grave ; these do not concern the events alleged to have
                 taken place on or around 8 September 1991 at Kusonje.
                    340. The Court accordingly considers that Croatia has failed to pro-
                 vide sufficient evidence that Serb forces perpetrated acts of torture at
                 Kusonje on or around 8 September 1991.

                     (b) Voćin
                    341. Croatia alleges that, between August and December 1991 at
                 Voćin, Serb forces subjected Croats to ill‑treatment and torture, and
                 raped Croat women.
                    342. Serbia disputes the probative value of the evidence presented by
                 Croatia, describing it as hearsay. Serbia notes that Slobodan Milošević’s
                 indictment at the ICTY refers to the murder of 32 Croat civilians at Voćin
                 on 13 December 1991 by Serb paramilitaries, but that there is no refer-
                 ence in any judgment or indictment of the ICTY to any of the other
                 crimes.
                    343. The Court notes that Croatia’s allegations rest essentially on
                 statements. It observes that the statement by M. S. refers to ill‑treatment
                 of Croats by Serbs, but the author does not appear to have witnessed this
                 directly. The Court thus cannot give the statement any evidential weight
                 in this regard. A statement by a nurse, D. V., working in the clinic at
                 Voćin also describes ill‑treatment of Croats by Serb forces inside the
                 clinic. This statement appears to have been made in the context of domes-
                 tic judicial proceedings, but contains no details about the nature of the
                 proceedings or the court where the statement was made. Moreover, the
                 statement is not signed. The Court thus considers that it cannot give it
                 any evidential weight. On the other hand, the statement by F. D. is signed,
                 and can be given evidential weight as regards the allegations of ill‑treat-
                 ment. The author describes the acts of ill‑treatment to which he and oth-
                 ers with him were subjected at the hands of Serb forces in late August 1991.
                 Serbia acknowledges, moreover, that his statement represents a first‑hand
                 account of ill‑treatment and beatings. In his statement, F. D. also claims
                 to have heard a woman screaming and assumed that she was being raped.
                 However, it appears that he did not witness this alleged rape directly.
                 Accordingly, the Court cannot give it evidential weight with respect to the
                 allegations of rape.

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                            application of genocide convention (judgment)                  107

                    344. Croatia cites a publication entitled The Anatomy of Deceit by
                 Doctor Jerry Blaskovich, in which he describes the torture suffered by a
                 Croat at the hands of Serb forces. The Court recalls that a publication of
                 this kind can only constitute secondary evidence and can only be used to
                 corroborate facts established by other evidence (see paragraph 239
                 above). The Court is therefore unable to find, solely on the basis of this
                 publication, that acts of torture were committed at Voćin by Serb forces.

                    345. Croatia also cites the Helsinki Watch Report. The Court notes
                 that the section describing acts of ill‑treatment and torture perpetrated by
                 Serb forces at Voćin in late December 1991 relies on eyewitness testimony
                 and autopsy reports. It recalls that the authors of the testimony are not
                 identified, and that the autopsy reports are not appended to the Helsinki
                 Watch Report (see paragraph 249 above). The Court is unable to con-
                 clude, on the basis of that Report alone, that acts of ill‑treatment and
                 torture were perpetrated by Serb forces at Voćin in December 1991.

                    346. In light of the above, the Court accordingly finds that Croatia has
                 shown that acts of ill‑treatment were perpetrated against Croats by Serb
                 forces at Voćin in August 1991. It finds that Croatia has not proved its
                 allegations of rape.

                     (c) Dulovac
                     347. Croatia contends that, from September 1991, Serb forces
                 ill‑treated and tortured (in particular mutilated) Croats living in the vil-
                 lage of Dulovac, located in the municipality of Daruvar and with a Croat
                 population of around 50 per cent. Serb forces also allegedly established a
                 prison in the village’s veterinary station and tortured villagers there,
                 before transferring them to other camps.

                   348. Serbia disputes the probative value of the statements produced by
                 Croatia in support of these allegations, and further points out that no
                 individual has been prosecuted or convicted by the ICTY for crimes com-
                 mitted in the municipality of Daruvar.
                   349. The Court notes that Croatia relies on statements to which it can
                 give evidential weight. This is the case, in particular, for two signed state-
                 ments made, respectively, before a Croatian investigating judge and the
                 representative of the Croatian Government in the Daruvar municipality,
                 by victims of ill‑treatment inflicted by the Serb forces.

                    350. While these statements do not substantiate all of Croatia’s allega-
                 tions, the Court concludes that Serb forces perpetrated acts of ill‑treat-
                 ment against Croats at Dulovac between September and December 1991.

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                     Region of Dalmatia

                       Knin
                    351. Croatia alleges that acts of ill‑treatment, torture and sexual vio-
                 lence were perpetrated against Croats in detention centres located in the
                 former hospital at Knin and in the barracks of the JNA 9th Corps.

                    352. Croatia produces inter alia two statements by victims of ill‑treat-
                 ment and torture perpetrated by Serb forces in the former hospital at
                 Knin. One of these victims also witnessed acts of sexual violence, and his
                 statement represents a first‑hand account of the events in question. The
                 Court considers that it can give these statements evidential weight.

                   353. The Court notes that this evidence is corroborated by the findings
                 of the ICTY. Thus, in the Martić case, the ICTY found that between
                 120 and 300 persons were detained in the former hospital at Knin (for the
                 period from mid‑1991 to mid‑1992), and between 75 and 200 persons
                 were detained in the barracks of the JNA 9th Corps, amongst whom were
                 Croat and non‑Serb civilians, as well as members of the Croatian armed
                 forces. The ICTY found that these persons had been subjected to ill‑treat-
                 ment by Serb forces or other individuals and that those acts had caused
                 them serious physical and mental suffering. The Tribunal described these
                 acts as torture and cruel and inhumane treatment, and noted that they
                 had been committed with discriminatory intent based on ethnic origin
                 (Martić Trial Judgment, paras. 407‑415). The Tribunal also accepted
                 that, at the former hospital at Knin, some of the prisoners were subjected
                 to acts of sexual violence (ibid., para. 288). In the Stanišić and Simatović
                 case, the Trial Chamber made similar findings (Stanišić and Simatović
                 Trial Judgment, paras. 387‑390).

                     354. The Court considers that it has been established that acts of
                 ill‑treatment, torture and sexual violence were perpetrated against Croat
                 civilians between mid‑1991 and mid‑1992, at detention centres located in
                 the former hospital at Knin and the barracks of the JNA 9th Corps.

                     Missing persons
                   355. The Court notes that, late on in the oral proceedings, Croatia
                 raised the argument that the psychological pain suffered by the relatives
                 of missing persons constituted serious mental harm within the meaning of
                 Article II (b) of the Convention.

                    356. The Court has accepted that the psychological pain suffered by
                 the relatives of individuals who have disappeared in the context of an
                 alleged genocide, as a result of the persistent refusal of the competent

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                 authorities to provide the information in their possession which would
                 enable these relatives to establish with certainty whether and how the per-
                 sons concerned died, can in certain circumstances constitute serious men-
                 tal harm within the meaning of Article II (b) of the Convention (see
                 paragraph 160 above). The Court acknowledges that in the present case,
                 the relatives of individuals who disappeared during the events that took
                 place on the territory of Croatia between 1991 and 1995 suffer psycho-
                 logical distress as a result of the continuing uncertainty which they face.
                 However, Croatia has failed to provide any evidence of psychological suf-
                 fering sufficient to constitute serious mental harm within the meaning of
                 Article II (b) of the Convention.
                    357. The Parties debated the fate of missing persons. The Court notes
                 that the Parties disagree on the number and ethnicity of the persons hav-
                 ing disappeared. However, since it is not disputed that many individuals
                 have disappeared, it is not for the Court to determine their precise num-
                 ber and ethnicity.
                    358. In reply to a question by a Member of the Court as to whether
                 there had been any recent initiatives to ascertain the fate of missing or
                 disappeared persons, the Parties stated that, following their agreement in
                 1995 at Dayton to co‑operate in tracing missing persons, some progress
                 had been made, but they admitted that this remained insufficient.
                    359. The Court notes that the Parties have expressed their willingness,
                 in the interest of the families concerned, to elucidate the fate of those who
                 disappeared in Croatia between 1991 and 1995. It notes Serbia’s assur-
                 ance that it will fulfil its responsibilities in the co‑operation process with
                 Croatia. The Court encourages the Parties to pursue that co‑operation in
                 good faith and to utilize all means available to them in order that the
                 issue of the fate of missing persons can be settled as quickly as possible.

                     Conclusion
                   360. In light of the foregoing, the Court considers it established that
                 during the conflict in a number of localities in Eastern Slavonia, Western
                 Slavonia, and Dalmatia, the JNA and Serb forces injured members of the
                 protected group as defined above (see paragraph 205) and perpetrated
                 acts of ill‑treatment, torture, sexual violence and rape. These acts caused
                 such bodily or mental harm as to contribute to the physical or biological
                 destruction of the protected group. The Court considers that the actus
                 reus of genocide within the meaning of Article II (b) of the Convention
                 has accordingly been established.

                 (4) Article II (c) : deliberately inflicting on the group conditions of life
                      calculated to bring about its physical destruction in whole or in part
                   361. Croatia asserts that the JNA and Serb forces deliberately inflicted
                 on the protected group conditions of life calculated to bring about its

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                 physical destruction in whole or in part, within the meaning of Arti-
                 cle II (c) of the Convention, at a number of localities within Croatia.
                 Croatia refers to acts of rape committed by the JNA and Serb forces. It
                 claims that Croats were deprived of food and medical care. According to
                 Croatia, the JNA and Serb forces instituted a policy of systematic expul-
                 sion of Croats from their homes and of forced displacement from the
                 areas under their control. Croats are alleged to have been forced to dis-
                 play signs of their ethnicity. The JNA and Serb forces allegedly destroyed
                 and looted Croat property and vandalized their cultural heritage. Finally,
                 Croats are claimed to have been subjected to forced labour. The Court
                 will examine in turn each of Croatia’s various allegations.

                     Rape
                    362. Croatia alleges that multiple acts of rape were committed by the
                 JNA and Serb forces against Croat women, both in various localities
                 throughout Croatian territory and in camps.
                    363. In support of its allegations, Croatia relies on statements appended
                 to its written pleadings. The Court notes that some of these statements
                 constitute first‑hand accounts of the events in question. It notes the state-
                 ment by a member of Serb forces, contemporary with the facts, who con-
                 fesses to acts of rape. However, that statement is neither signed nor
                 confirmed. The Court cannot therefore give it any evidential weight. On
                 the other hand, there are a number of direct, detailed accounts of rape by
                 members of the JNA or Serb forces given by the victims. The Court con-
                 siders 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. It recalls that Croatia has established
                 that acts of rape were committed in a number of localities in Eastern Sla-
                 vonia and that they caused serious bodily and mental harm to members
                 of the protected group (see paragraphs 305, 311, 315 and 324 above).

                   364. Nevertheless, it has not been shown that these occurrences were
                 on such a scale as to have amounted also to inflicting conditions of life on
                 the group that were capable of bringing about its physical destruction in
                 whole or in part.

                     Deprivation of food
                    365. Croatia alleges that the JNA and Serb forces subjected Croats to
                 food deprivation.
                    366. The Court notes that some of the statements produced by Croatia
                 refer to occasional denials of food supplies to Croats. However, these
                 statements do not suffice to show that such denials were of a systematic
                 or general nature.

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                   367. Regarding Dubrovnik, the Court notes that in the Strugar case
                 the ICTY found that
                       “[b]ecause of the blockade that had been enforced by the JNA the
                       population of Dubrovnik, including the Old Town, had been without
                       normal running water and electricity supplies for some weeks and
                       essential products to sustain the population, such as food and medical
                       supplies, were in extremely short supply” (Strugar Trial Judgment,
                       para. 176 ; reference omitted).
                    The Court considers that it has not been established that this restric-
                 tion on food supplies was calculated to bring about the physical destruc-
                 tion in whole or in part of the Croat inhabitants of Dubrovnik, within the
                 meaning of Article II (c) of the Convention.
                    368. The Court concludes that Croatia has not established that the
                 JNA and Serb forces denied access by Croats to food supplies, thereby
                 subjecting them to food deprivation in a manner capable of falling within
                 the scope of Article II (c) of the Convention.

                     Deprivation of medical care
                    369. Croatia alleges that Croats were deprived of medical care.
                    370. The Court notes that Croatia’s allegations rely on statements
                 appended to its written pleadings which are not signed or confirmed by
                 the declarants. This evidence cannot demonstrate a practice of a system-
                 atic or general nature.
                    371. In regard to Dubrovnik, the Court relies on the findings of the
                 ICTY in the Strugar case cited above (see paragraph 367). The Court
                 likewise recalls that it has not been established that the denial of medical
                 supplies was imposed with the intention of causing the physical destruc-
                 tion, in whole or in part, of the Croat inhabitants of Dubrovnik.
                    372. The Court concludes that Croatia has failed to show deprivations
                 of medical care such as to be capable of coming within the scope of Arti-
                 cle II (c) of the Convention.

                     Systematic expulsion from homes and forced displacement
                   373. Croatia alleges that the JNA and Serb forces systematically
                 expelled Croats from their homes and forcibly displaced them from the
                 areas under their control throughout the Croatian territory.

                    374. The Court notes that, in the Martić case, the ICTY found that
                 between 1991 and 1995, the JNA and Serb forces had deliberately created
                 a coercive atmosphere in the SAO Krajina, and then in the RSK, with the
                 aim of forcing the non‑Serb population to leave that territory :
                         “427. From August 1991 and into early 1992, forces of the TO and
                       the police of the SAO Krajina and of the JNA attacked Croat‑major-

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                     ity villages and areas, including the villages of Hrvatska Kostajnica,
                     Cerovljani, Hrvatska Dubica, Baćin, Saborsko, Poljanak, Lipovača,
                     Skabrnja and Nadin. The displacement of the non‑Serb population
                     which followed these attacks was not merely the consequence of mil-
                     itary action, but the primary objective of it . . .
                        428. The Trial Chamber considers the evidence to establish beyond
                     reasonable doubt that the systematic acts of violence and intimidation
                     carried out, inter alia, by the JNA, the TO and the Milicija Krajine
                     against the non‑Serb population in the villages created a coercive
                     atmosphere in which the non‑Serb population did not have a genuine
                     choice in their displacement. Based on this evidence, the Trial Cham-
                     ber concludes that the intention behind these acts was to drive out the
                     non‑Serb population from the territory of the SAO Krajina

                     �����������������������������������������������������������������������������������������������������������������
                         430. With regard to the period from 1992 to 1995, the Trial Cham-
                     ber has been furnished with a substantial amount of evidence of mas-
                     sive and widespread acts of violence and intimidation committed
                     against the non‑Serb population, which were pervasive through the
                     RSK territory. The Trial Chamber notes, in particular, that during this
                     time period there was a continuation of incidents of killings, beatings,
                     robbery and theft, harassment, and extensive destruction of houses
                     and Catholic churches carried out against the non‑Serb population.
                     These acts created a coercive atmosphere which had the effect of forc-
                     ing out the non‑Serb population from the territory of the RSK. As a
                     consequence, almost the entire non‑Serb population left the RSK . . .
                         431. Based on the substantial evidence referred to above, the Trial
                     Chamber finds that due to the coercive atmosphere in the RSK from
                     1992 through 1995, almost the entire non‑Serb population was forci-
                     bly removed to territories under the control of Croatia. The elements
                     of the crime of deportation (Count 10) have therefore been met.”
                     (Martić Trial Judgment, paras. 427, 428, 430 and 431 ; references
                     omitted.)
                   375. The ICTY reached similar findings in the Stanišić and Simatović
                 case regarding the SAO Krajina (and then the RSK) and the SAO SBWS :

                        “997. The Trial Chamber recalls its findings . . . that from April 1991
                     to April 1992, between 80,000 and 100,000 Croat and other non‑Serb
                     civilians fled the SAO Krajina (and subsequently the Krajina area of
                     the RSK). They did so as a result of the situation prevailing in the
                     region at the time of their respective departures, which was created
                     by a combination of : the attacks on villages and towns with substan-
                     tial or completely Croat populations ; the killings, use as human
                     shields, detention, beatings, forced labour, sexual abuse, and other
                     forms of harassment of Croat persons ; and the looting and destruc-
                     tion of property. These actions were committed by the local Serb

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                     authorities and the members and units of the JNA (including JNA
                     reservists), the SAO Krajina TO, the SAO Krajina Police, and Serb
                     paramilitary units, as well as local Serbs and certain named individ-
                     uals (including Milan Martić). The Trial Chamber notes that the per-
                     sons fleeing were Croats and other non‑Serbs and that their ethnicity
                     thus corresponds to the charges in the indictment.

                         998. The Trial Chamber finds that the aforementioned acts caused
                     duress and fear of violence such that they created an environment in
                     which the Croats and other non‑Serbs in the SAO Krajina had no
                     choice but to leave. Therefore, the Trial Chamber finds that those who
                     left were forcibly displaced. Considering the circumstances of the for-
                     cible displacement, and absent any indication to the contrary, the
                     Trial Chamber finds that the displaced individuals were forced to
                     leave an area in which they were lawfully present
                     �����������������������������������������������������������������������������������������������������������������
                         1049. The Trial Chamber recalls its findings . . . that between 1991
                     and 1992, the JNA, Sešelj’s men, Serbian volunteers, local authorities,
                     SRS, paramilitaries from Prigrevica, SNB, police, TO, a ‘Special
                     Unit’, and the SDG launched attacks all over the SAO SBWS, caus-
                     ing thousands of people to flee. The Trial Chamber recalls that these
                     attacks involved acts of forcible transfer, detentions, destruction of a
                     Catholic church, looting, restriction of freedom, forced labour, beat-
                     ings, killings, threats, and harassment. The Trial Chamber notes that
                     a significant number of those people who fled were Croats, and other
                     non‑Serbs and concludes that their ethnicity thus corresponds to the
                     charges in the indictment.

                        1050. The Trial Chamber considers that the aforementioned acts
                     caused duress and fear of violence such that they created an environ-
                     ment in which the Croats and other non‑Serbs had no choice but to
                     leave. Therefore, the Trial Chamber finds that those who left were for-
                     cibly displaced. The Trial Chamber finds, having considered that those
                     who were forcibly displaced were inhabitants of the SAO SBWS, absent
                     any indication to the contrary, were lawfully present there.” (Stanišić
                     and Simatović Trial Judgment, paras. 997, 998, 1049 and 1050.)
                    376. In the Court’s view, the findings of the ICTY show that the JNA
                 and Serb forces carried out expulsions and forced displacements of Croats
                 in the SAO Krajina (and then the RSK) and the SAO SBWS. The Court
                 recalls that the forced displacement of a population does not, as such, con-
                 stitute the actus reus of genocide within the meaning of Article II (c) of the
                 Convention (see paragraph 162 above). Such characterization would
                 depend on the circumstances in which the forced displacement was carried
                 out (see paragraph 163 above). The Court notes that, in the present case,
                 the forced displacement of the population is a consequence of the commis-

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                 sion of acts capable of constituting the actus reus of genocide, in particular
                 as defined in Article II (a) to (c) of the Convention. However, the Court
                 notes that there is no evidence before the Court enabling it to conclude that
                 the forced displacement was carried out in circumstances calculated to
                 result in the total or partial physical destruction of the group.
                    377. In these circumstances, the Court finds that Croatia has failed to
                 show that the forced displacement of Croats by the JNA and Serb forces
                 is capable of constituting the actus reus of genocide within the meaning of
                 Article II (c) of the Convention.

                     Restrictions on movement
                    378. Croatia alleges that in many villages, the movements of Croats
                 were restricted.
                    379. The Court refers to the findings of the Trial Chamber in the
                 Stanišić and Simatović case, which state that between 1991 and 1992, the
                 JNA and Serb forces imposed restrictions on the free movement of Cro-
                 ats living in the SAO Krajina (and then in the RSK) and the SAO SBWS
                 (Stanišić and Simatović Trial Judgment, paras. 997 and 1049, reproduced
                 at paragraph 375 above ; see also paragraph 1250, not reproduced). The
                 Court considers that these findings constitute sufficient evidence to sub-
                 stantiate Croatia’s allegations.
                    380. The Court notes that the restrictions on the movement of the Cro-
                 ats were part of the creation of a climate of coercion and terror, with the
                 aim of forcing those persons to leave the territories under the control of
                 the JNA and Serb forces. The Court recalls that Article II (c) of the Con-
                 vention refers only to conditions of life calculated to bring about the
                 physical destruction of the group. It considers that restrictions on free-
                 dom of movement may undermine the social bond between members of
                 the group, and hence lead to the destruction of the group’s cultural iden-
                 tity. However, such restrictions cannot be regarded as calculated to bring
                 about the group’s physical destruction, which is the sole criterion in Arti-
                 cle II (c) of the Convention. The Court accordingly concludes that the
                 restrictions on movement imposed on Croats by the JNA and Serb forces
                 do not constitute the actus reus of genocide within the meaning of Arti-
                 cle II (c) of the Convention.

                     Forced wearing of insignia of ethnicity
                    381. Croatia alleges that, in certain localities, Croats were obliged to
                 wear insignia of ethnicity, in the form of a white ribbon on their sleeves,
                 or a white sheet attached to their houses.
                    382. The Court considers that the purpose of forcing individuals to wear
                 signs of their membership of a group is to stigmatize the group’s members.
                 This enables the authors of such acts to identify the members of the group.
                 The aim is not the immediate physical destruction of the group, but it may
                 represent a preliminary step towards perpetration of the acts listed in Arti-

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                              application of genocide convention (judgment)                115

                 cle II of the Convention against the group members thus identified. Conse-
                 quently, forcing individuals to wear insignia of their ethnicity does not in
                 itself fall within the scope of Article II (c) of the Convention, but it might
                 be taken into account for the purpose of establishing whether or not there
                 existed an intent to destroy the protected group, in whole or in part.

                     Looting of property belonging to Croats
                    383. Croatia alleges that Croat property was repeatedly looted in a
                 number of localities.
                    384. The Court refers to the findings of the ICTY Trial Chamber in
                 the Stanišić and Simatović case. According to the ICTY, between 1991
                 and 1992, the JNA and Serb forces looted the property of Croat and
                 non‑Serb civilians in the SAO Krajina (and then in the RSK) and in the
                 SAO SBWS (Stanišić and Simatović Trial Judgment, paras. 997 and 1049,
                 reproduced at paragraph 375 above ; see also paragraph 1250, not repro-
                 duced). The Court considers that these findings suffice to substantiate the
                 facts alleged by Croatia.
                    385. The Court is of the view, however, that it has not been established
                 that such attacks on Croat property were intended to inflict on the Croat
                 group “conditions of life calculated to bring about its physical destruc-
                 tion in whole or in part”. Accordingly, the looting of Croat property by
                 the JNA and Serb forces cannot constitute the actus reus of genocide
                 within the meaning of Article II (c) of the Convention.

                     Destruction and looting of the cultural heritage
                    386. Croatia alleges that the JNA and Serb forces destroyed and looted
                 assets forming part of the cultural heritage and monuments of the Croats.
                    387. The Court notes that in the Babić case, where the accused pleaded
                 guilty, the ICTY found that the JNA and Serb forces had, between
                 1 August 1991 and 15 February 1992, established in the SAO Krajina a
                 régime of persecutions designed to drive the Croat and other non‑Serb
                 populations out of the territory. These persecutions included the deliber-
                 ate destruction of cultural institutions, historic monuments and sacred
                 sites of the Croat and other non‑Serb populations in various localities
                 (IT‑03‑72‑S, Trial Chamber, Sentencing Judgment of 29 June 2004 (here-
                 inafter “Babić Trial Judgment”), para. 15). The Tribunal made similar
                 findings in the Martić case, where it held that in 1991 and 1992, the JNA
                 and Serb forces had destroyed churches and religious buildings in Croa-
                 tian towns and villages located in the SAO Krajina, and then in the RSK
                 (Martić Trial Judgment, paras. 324 and 327).

                     388. The Court recalls that it held in 2007 that
                       “the destruction of historical, cultural and religious heritage cannot
                       be considered to constitute the deliberate infliction of conditions of
                       life calculated to bring about the physical destruction of the group.

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                             application of genocide convention (judgment)                116

                       Although such destruction may be highly significant inasmuch as it is
                       directed to the elimination of all traces of the cultural or religious
                       presence of a group, and contrary to other legal norms, it does not
                       fall within the categories of acts of genocide set out in Article II of
                       the Convention. In this regard, the Court observes that, during its
                       consideration of the draft text of the Convention, the Sixth Commit-
                       tee of the General Assembly decided not to include cultural genocide
                       in the list of punishable acts.” (I.C.J. Reports 2007 (I), pp. 185‑186,
                       para. 344.)
                    389. The Court considers that there is no compelling reason in the
                 present case for it to depart from that approach. It accordingly finds that
                 it is unnecessary to proceed any further with its examination of Croatia’s
                 allegations in order to establish the actus reus of genocide within the
                 meaning of Article II (c) of the Convention.
                    390. The Court recalls, however, that it may take account of attacks
                 on cultural and religious property in order to establish an intent to destroy
                 the group physically (ibid., p. 186, para. 344).

                     Forced labour
                    391. Croatia alleges that the JNA and Serb forces obliged Croats to
                 perform forced labour in numerous localities.
                    392. The Court again refers to the findings of the ICTY Trial Chamber
                 in the Stanišić and Simatović case. These show that between 1991 and
                 1992, the JNA and Serb forces obliged Croat civilians to perform forced
                 labour in the SAO Krajina (and then in the RSK) and in the SAO SBWS
                 (Stanišić and Simatović Trial Judgment, paras. 997 and 1049 reproduced
                 above at paragraph 375 ; see also para. 1250, not reproduced).
                    393. The Court considers that these findings suffice to establish the
                 facts alleged by Croatia. The Court takes the view that the characteriza-
                 tion of forced labour as the actus reus of genocide within the meaning of
                 Article II (c) of the Convention depends on the conditions under which
                 that labour is carried out. In this regard, the Court notes that in the
                 Stanišić and Simatović case, the ICTY Trial Chamber found that forced
                 labour formed part of a series of actions aimed at the forced expulsion of
                 the Croat population (ibid., paras. 998 and 1050, reproduced above at
                 paragraph 375). The Court finds in this instance that Croatia has not
                 established that the forced labour imposed on the Croat population is
                 capable of constituting the actus reus of genocide within the meaning of
                 Article II (c) of the Convention.

                     Conclusion
                   394. The Court concludes that Croatia has failed to establish that acts
                 capable of constituting the actus reus of genocide, within the meaning of
                 Article II (c) of the Convention, were committed by the JNA and Serb
                 forces.

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                 (5) Article II (d) : measures intended to prevent births within the group

                    395. Croatia alleges that, as well as rape, the JNA and Serb forces
                 committed other acts of sexual violence (in particular castrations) against
                 Croats, constituting the actus reus of genocide within the meaning of
                 Article II (d) of the Convention.
                    396. Serbia maintains that, in order to be regarded as measures
                 intended to prevent births within the group, within the meaning of Arti-
                 cle II (d) of the Convention, it is necessary for the rape and other acts of
                 sexual violence to have been carried out systematically, whereas in the
                 present case such acts were merely random incidents, and hence cannot
                 constitute such measures.
                    397. The Court recalls that it has already found that Croatia has failed
                 to provide sufficient evidence that acts of rape were carried out on such a
                 scale that it can be said that they inflicted conditions of life on the group
                 that were capable of bringing about its physical destruction in whole or in
                 part (see paragraph 364 above). Similarly, Croatia has not provided suf-
                 ficient evidence that rape was committed in order to prevent births within
                 the group, within the meaning of Article II (d). The Court will therefore
                 concentrate on the other acts of sexual violence alleged by Croatia.
                    398. Croatia relies principally on statements appended to its written
                 pleadings. The Court notes that several of these statements, which are
                 signed or confirmed, are by victims or eyewitnesses of acts of sexual vio-
                 lence. They are mutually consistent and constitute first‑hand accounts of
                 the events in question. The Court considers that there is sufficiently reli-
                 able evidence that acts of sexual violence did indeed take place, in par-
                 ticular involving the targeting of the genitalia of Croat males. It recalls
                 that the ICTY also established that acts of sexual violence were perpe-
                 trated by the JNA and Serb forces in the SAO Krajina (and then in the
                 RSK) and in the SAO SBWS between 1991 and 1992 (Stanišić and
                 Simatović Trial Judgment, para. 997, reproduced above at paragraph 375 ;
                 see also para. 1250, not reproduced).
                    399. Nevertheless, Croatia has produced no evidence that the acts of
                 sexual violence were perpetrated in order to prevent births within the
                 group.
                    400. The Court accordingly finds that Croatia has failed to show that
                 rapes and other acts of sexual violence were perpetrated by the JNA and
                 Serb forces against Croats in order to prevent births within the group,
                 and that, hence, the actus reus of genocide within the meaning of Arti-
                 cle II (d) of the Convention has not been established.

                     Conclusion on the actus reus of genocide
                    401. The Court is fully convinced that, in various localities in Eastern
                 Slavonia, Western Slavonia, Banovina/Banija, Kordun, Lika and Dalma-
                 tia, the JNA and Serb forces perpetrated against members of the pro-

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                            application of genocide convention (judgment)                118

                 tected group acts falling within subparagraphs (a) and (b) of Article II
                 of the Convention, and that the actus reus of genocide has been estab-
                 lished.

                                 B. The Genocidal Intent (dolus specialis)
                    402. The actus reus of genocide having been established, the Court will
                 now examine whether the acts perpetrated by the JNA and Serb forces
                 were committed with intent to destroy, in whole or in part, the protected
                 group as defined above (see paragraph 205).
                    403. Croatia contends that the crimes committed by the JNA and Serb
                 forces represent a pattern of conduct from which the only reasonable con-
                 clusion to be drawn is an intent on the part of the Serbian authorities to
                 destroy in part the Croat group. It maintains that the Croats living in the
                 regions of Eastern Slavonia, Western Slavonia, Banovina/Banija, Kor-
                 dun, Lika and Dalmatia targeted by those crimes constituted a substan-
                 tial part of the protected group, and that the intent to destroy the
                 protected group “in part”, which characterizes genocide as defined in
                 Article II of the Convention, is thus established.
                    404. The Court will begin by examining whether the Croats living in
                 the above regions constituted a substantial part of the protected group. If
                 so, it will then seek to determine whether the acts proved to have been
                 committed by the JNA and Serb forces represented a pattern of conduct
                 from which the only reasonable conclusion to be drawn is an intent on
                 the part of the Serbian authorities to destroy “in part” the protected
                 group.

                 (1) Did the Croats living in Eastern Slavonia, Western Slavonia, Banovina/
                      Banija, Kordun, Lika and Dalmatia constitute a substantial part of the
                      protected group ?
                    405. According to Croatia, the Croats living in the regions of Eastern
                 Slavonia, Western Slavonia, Banovina/Banija, Kordun, Lika and Dalma-
                 tia constituted a substantial part of the Croat group targeted by the geno-
                 cidal intent.
                    406. As the Court has already recalled (see paragraph 142 above), it
                 must take account not only of the quantitative element, but also of the
                 geographic location and prominence of the targeted part of the group in
                 order to determine whether it constitutes a substantial part of the pro-
                 tected group.
                    Regarding the quantitative element, Croatia maintains that the target
                 group was “the Croat population that was, at the relevant time, living in
                 Eastern Slavonia, Western Slavonia, Banovina, Kordun, Lika, and Dal-
                 matia, including those living as groups in individual villages”. It provides
                 data taken from the last official census carried out in 1991 in the SFRY,
                 which is not disputed by Serbia. According to that data, the ethnic Croat
                 population living in the regions of Eastern Slavonia, Western Slavonia,

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                 Banovina/Banija, Kordun, Lika, and Dalmatia in 1991 numbered between
                 1.7 and 1.8 million. It constituted slightly less than half of the ethnic
                 Croat population living in Croatia. According to the 1991 census, the
                 total population of Croatia was approximately 4.8 million persons, of
                 which 78 per cent were ethnic Croats.

                   Regarding the geographic location of the part of the group concerned,
                 the Court has already found (see paragraphs 295, 360 and 401 above)
                 that the acts committed by the JNA and Serb forces in the regions of
                 Eastern Slavonia, Western Slavonia, Banovina/Banija, Kordun, Lika and
                 Dalmatia, targeted the Croats living in those regions, within which these
                 armed forces exercised and sought to expand their control.
                   Finally as regards the prominence of that part of the group, the Court
                 notes that Croatia has provided no information on this point.
                   The Court concludes from the foregoing that the Croats living in the
                 regions of Eastern Slavonia, Western Slavonia, Banovina/Banija, Kor-
                 dun, Lika and Dalmatia constituted a substantial part of the Croat group.

                                                      * *

                 (2) 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 ?
                    407. The Court will now examine whether Croatia has established the
                 existence of a pattern of conduct from which the only reasonable conclu-
                 sion to be drawn is an intent of the Serb authorities to destroy that sub-
                 stantial part of the group.
                    408. Croatia argues that the scale and consistent nature of the crimes
                 committed by the JNA and Serb forces evince a clear intention to bring
                 about the physical destruction of the Croats. It contends that these crimes
                 constitute a pattern of conduct from which the only reasonable inference
                 to be drawn is that the Serb leaders were motivated by genocidal intent.
                 Croatia thus sets out a series of 17 factors which it believes, individually
                 or taken together, could lead the Court to conclude that there was a sys-
                 tematic policy of targeting Croats with a view to their elimination from
                 the regions concerned : (1) the political doctrine of Serbian expansionism
                 which created the climate for genocidal policies aimed at destroying the
                 Croat population living in areas earmarked to become part of “Greater
                 Serbia” ; (2) the statements of public officials, including demonization of
                 Croats and propaganda on the part of State‑controlled media ; (3) the
                 fact that the pattern of attacks on groups of Croats far exceeded any
                 legitimate military objective necessary to secure control of the regions
                 concerned ; (4) contemporaneous video footage evidencing the genocidal
                 intent of those carrying out the attacks ; (5) the explicit recognition by the

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                 JNA that paramilitary groups were engaging in genocidal acts ; (6) the
                 close co‑operation between the JNA and the Serb paramilitary groups
                 responsible for some of the worst atrocities, implying close planning and
                 logistical support ; (7) the systematic nature and sheer scale of the attacks
                 on groups of Croats ; (8) the fact that ethnic Croats were constantly sin-
                 gled out for attack while local Serbs were excluded ; (9) the fact that dur-
                 ing the occupation, ethnic Croats were required to identify themselves
                 and their property as such by wearing white ribbons tied around their
                 arms and by affixing white cloths to their homes ; (10) the number of Cro-
                 ats killed and missing as a proportion of the local population ; (11) the
                 nature, degree and extent of the injuries inflicted (through physical
                 attacks, acts of torture, inhuman and degrading treatment, rape and sex-
                 ual violence), “including injuries with recognizable ethnic characteris-
                 tics” ; (12) the use of ethnically derogatory language in the course of acts
                 of killing, torture and rape ; (13) the forced displacement of Croats and
                 the organized means adopted to this end ; (14) the systematic looting and
                 destruction of Croat cultural and religious monuments ; (15) the suppres-
                 sion of Croat culture and religious practices among the remaining popu-
                 lation ; (16) the consequent permanent and evidently intended demographic
                 changes to the regions concerned ; (17) the failure to punish the crimes
                 which the Applicant alleges to be genocide.

                    409. All these elements indicate, according to Croatia, the existence of
                 a pattern of conduct from which the only reasonable inference is an intent
                 to destroy, in whole or in part, the Croat group.
                    410. Consequently, the Court will examine first whether the acts com-
                 mitted by the JNA and Serb forces form part of a pattern of conduct and,
                 if so, it will then consider whether an intent to destroy the Croat group is
                 the only reasonable conclusion that can be inferred from that pattern of
                 conduct.
                    411. The Parties disagree on the existence of a pattern of conduct. Cro-
                 atia considers that the scale, intensity and systematic nature of the attacks
                 directed against the Croat population, based on the same modus operandi,
                 demonstrate the existence of a pattern of conduct. According to Croatia,
                 the JNA and Serb forces applied a massive use of force which can only be
                 explained by an intent to destroy the group in whole or in part.
                    412. Serbia does not contest the systematic and widespread nature of
                 certain attacks. However, it claims that these were intended to force the
                 Croats to leave the regions concerned. In this regard, it cites the Martić
                 and Mrkšić et al. cases, in which the ICTY found that the purpose of the
                 attacks on the Croat population was to force it to leave.

                   Serbia points out that, in the Martić case, although the accused had not
                 been charged with genocide, there was nothing to prevent the Trial Cham-

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                 ber from concluding that the attacks indicated an intent to persecute or to
                 exterminate “or worse”, but that it had not done so. Regarding the attack
                 on Vukovar and the surrounding area, Serbia submits that, in the
                 Mrkšić et al. case, the Trial Chamber found that the purpose of that
                 attack was also to punish the town’s Croat population, but not to destroy
                 it.
                     Serbia maintains that the evidence “shows a multitude of patterns giv-
                 ing rise to inferences of combat and/or forcible transfer and/or punish-
                 ment”, but not genocide.
                     413. The Court considers that, of the 17 factors suggested by Croatia
                 to establish the existence of a pattern of conduct revealing a genocidal
                 intent, the most important are those that concern the scale and allegedly
                 systematic nature of the attacks, the fact that those attacks are said to
                 have caused casualties and damage far in excess of what was justified by
                 military necessity, the specific targeting of Croats and the nature, extent
                 and degree of the injuries caused to the Croat population (i.e., the third,
                 seventh, eighth, tenth and eleventh factors identified in paragraph 408,
                 above).
                     414. The Court notes that, in the Mrkšić et al. case, the ICTY Trial
                 Chamber found that in Eastern Slavonia
                     “the system of attack employed by the JNA typically evolved along
                     the following lines
                        ‘(a) tension, confusion and fear is built up by a military presence
                        around a village (or bigger community) and provocative beha-
                        viour ; (b) there is then artillery or mortar shelling for several
                        days, mostly aimed at the Croatian parts of the village ; in this
                        stage churches are often hit and destroyed ; (c) in nearly all cases
                        JNA ultimata are issued to the people of a village demanding the
                        collection and the delivery to the JNA of all weapons ; village
                        delegations are formed but their consultations with JNA military
                        authorities do not lead, with the exception of Ilok, to peaceful
                        arrangements ; with or without waiting for the results of the ulti-
                        mata a military attack is carried out ; and (d) at the same time, or
                        shortly after the attack, Serb paramilitaries enter the village ; what
                        then follows varied from murder, killing, burning and looting, to
                        discrimination’” (Mrkšić Trial Judgment, para. 43, citing the tes-
                        timony of Ambassador Kypr of the European Community Moni-
                        toring Mission ; reference omitted).

                 The Tribunal adopted similar conclusions in the Martić case :
                     “[t]he area or village in question would be shelled, after which ground
                     units would enter. After the fighting had subsided, acts of killing and
                     violence would be committed by the forces against the civilian
                     non‑Serb population who had not managed to flee during the attack.
                     Houses, churches and property would be destroyed in order to pre-

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                       vent their return and widespread looting would be carried out. In
                       some instances the police and the TO of the SAO Krajina organized
                       transport for the non‑Serb population in order to remove it from SAO
                       Krajina territory to locations under Croatian control. Moreover,
                       members of the non‑Serb population would be rounded up and taken
                       away to detention facilities, including in central Knin, and eventually
                       exchanged and transported to areas under Croatian control.” (Martić
                       Trial Judgment, para. 427 ; reference omitted.)
                    415. The Court likewise notes that there were similarities, in terms of
                 the modus operandi used, between some of the attacks confirmed to have
                 taken place. Thus it observes that the JNA and Serb forces would attack
                 and occupy the localities and create a climate of fear and coercion, by
                 committing a number of acts that constitute the actus reus of genocide
                 within the meaning of Article II (a) and (b) of the Convention. Finally,
                 the occupation would end with the forced expulsion of the Croat popula-
                 tion from these localities.
                    416. The findings of the Court and those of the ICTY are mutually
                 consistent, and establish the existence of a pattern of conduct that con-
                 sisted, from August 1991, in widespread attacks by the JNA and Serb
                 forces on localities with Croat populations in various regions of Croatia,
                 according to a generally similar modus operandi.
                    417. The Court recalls that, for a pattern of conduct to be accepted as
                 evidence of intent to destroy the group, in whole or in part, it must be
                 “such that it could only point to the existence of such intent” (I.C.J. Reports
                 2007 (I), p. 197, para. 373). This signifies that, for the Court, intent to
                 destroy the group, in whole or in part, must be the only reasonable infer-
                 ence which can be drawn from the pattern of conduct (see paragraph 148
                 above).
                    418. In its oral argument, Croatia put forward two factors which, in its
                 view, should lead the Court to conclude that intent to destroy is the only
                 reasonable inference to be drawn from the pattern of conduct previously
                 established : the context in which those acts were committed and the
                 opportunity which the JNA and Serb forces had of destroying the Croat
                 population. The Court will examine these in turn.

                     (a) Context
                    419. The Court will examine the context in which the acts constituting
                 the actus reus of genocide within the meaning of subparagraphs (a)
                 and (b) of the Convention were committed, in order to determine the aim
                 pursued by the authors of those acts.
                    420. Croatia claims that the acts committed by the JNA and Serb
                 forces against Croats between 1991 and 1995 represented the implementa-
                 tion, by the Serb nationalists and leadership, of the objective of a “Greater
                 Serbia”. That entailed unifying those parts of the territories of the various
                 entities of the SFRY in which ethnic Serbs were living. Croatia relies inter

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                 alia on a memorandum prepared in 1986 by the Serbian Academy of Sci-
                 ences and Arts (hereinafter “the SANU Memorandum”), which allegedly
                 contributed to the rebirth of the idea of a “Greater Serbia”. Croatia con-
                 tends that the destruction of the Croats in these areas, who were per-
                 ceived as a threat to the Serb people, was necessary for the creation of
                 “Greater Serbia”. In this regard, the SANU Memorandum is claimed to
                 have acted as a catalyst for the genocide of the Croats.
                    421. Serbia contests Croatia’s historical approach and argues that it is
                 conflating issues, since the idea of a “Greater Serbia” never implied an
                 intent to commit genocide against the Croats.

                    422. The Court considers that there is no need to enter into a debate
                 on the political and historical origins of the events that took place in Cro-
                 atia between 1991 and 1995. It notes that the SANU Memorandum cited
                 by Croatia has no official standing and certainly does not contemplate the
                 destruction of the Croats. It cannot be regarded, either by itself or in con-
                 nection with any of the other factors relied on by Croatia, as an expres-
                 sion of the dolus specialis.
                    423. The Court will seek to determine what aim was being pursued by
                 the JNA and Serb forces when they committed acts that constitute the
                 actus reus of genocide within the meaning of Article II (a) and (b) of the
                 Convention, where those acts have been established before the Court.
                    424. The Court notes that the ICTY has stated the political objective
                 being pursued by the leadership of the SAO Krajina and then the RSK,
                 and shared with the leaderships in Serbia and in the Republika Srpska in
                 Bosnia and Herzegovina as follows :
                         “442. . . . The evidence establishes the existence, as of early 1991,
                     of a political objective to unite Serb areas in Croatia and in BiH with
                     Serbia in order to establish a unified territory. Moreover, the evidence
                     establishes that the SAO Krajina, and subsequently the RSK, govern-
                     ment and authorities fully embraced and advocated this objective, and
                     strove to accomplish it in co-operation with the Serb leaderships in
                     Serbia and in the RS in BiH.
                     �����������������������������������������������������������������������������������������������������������������
                         445. From at least August 1991, the political objective to unite Serb
                     areas in Croatia and in BiH with Serbia in order to establish a unified
                     territory was implemented through widespread and systematic armed
                     attacks on predominantly Croat and other non‑Serb areas and
                     through the commission of acts of violence and intimidation. In the
                     Trial Chamber’s view, this campaign of violence and intimidation
                     against the Croat and non‑Serb population was a consequence of the
                     position taken by the SAO Krajina and subsequently the RSK lead-
                     ership that co‑existence with the Croat and other non‑Serb popula-
                     tion, in Milan Martić’s words, ‘in our Serbian territories of the SAO
                     Krajina’, was impossible. Thus, the implementation of the political
                     objective to establish a unified Serb territory in these circumstances

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                     necessitated the forcible removal of the non‑Serb population from the
                     SAO Krajina and RSK territory. The Trial Chamber therefore finds
                     beyond reasonable doubt that the common purpose of the [joint crim-
                     inal enterprise] was the establishment of an ethnically Serb territory
                     through the displacement of the Croat and other non‑Serb popula-
                     tion, as charged in Counts 10 and 11 [deportation and forcible trans-
                     fer].” (Martić Trial Judgment, paras. 442 and 445 ; reference omitted.)
                   425. In its Trial Chamber Judgment in the Babić case, the ICTY, fol-
                 lowing the defendant’s guilty plea, held that there had been a joint crimi-
                 nal enterprise whose objective
                     “was the permanent and forcible removal of the majority of Croat
                     and other non‑Serb populations from approximately one‑third of
                     Croatia through a campaign of persecutions in order to make that
                     territory a Serb‑dominated state” (Babić Trial Judgment, para. 34).
                    426. According to the ICTY, the leadership of Serbia and that of the
                 Serbs in Croatia, inter alia, shared the objective of creating an ethnically
                 homogeneous Serb State. That was the context in which acts were commit-
                 ted that constitute the actus reus of genocide within the meaning of Arti-
                 cle II (a) and (b) of the Convention. However, the conclusion of the ICTY
                 indicates that those acts were not committed with intent to destroy the Cro-
                 ats, but rather with that of forcing them to leave the regions concerned so
                 that an ethnically homogeneous Serb State could be created. The Court
                 agrees with this conclusion. As the Tribunal found in the Martić case :
                         “427. From August 1991 and into early 1992, forces of the TO and
                     the police of the SAO Krajina and of the JNA attacked Croat‑major-
                     ity villages and areas, including the villages of Hrvatska Kostajnica,
                     Cerovljani, Hrvatska Dubica, Baćin, Saborsko, Poljanak, Lipovača,
                     Skabrnja and Nadin. The displacement of the non‑Serb population
                     which followed these attacks was not merely the consequence of mil-
                     itary action, but the primary objective of it
                     �����������������������������������������������������������������������������������������������������������������
                         430. With regard to the period from 1992 to 1995, the Trial Cham-
                     ber has been furnished with a substantial amount of evidence of massive
                     and widespread acts of violence and intimidation committed against
                     the non‑Serb population, which were pervasive throughout the RSK
                     territory. The Trial Chamber notes, in particular, that during this time
                     period there was a continuation of incidents of killings, beatings, rob-
                     bery and theft, harassment, and extensive destruction of houses and
                     Catholic churches carried out against the non‑Serb population. These
                     acts created a coercive atmosphere which had the effect of forcing out
                     the non‑Serb population from the territory of the RSK. As a conse-
                     quence, almost the entire non‑Serb population left the RSK . . .
                         431. Based on the substantial evidence referred to above, the Trial
                     Chamber finds that due to the coercive atmosphere in the RSK from

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                            application of genocide convention (judgment)                125

                     1992 through 1995, almost the entire non‑Serb population was forci-
                     bly removed to territories under the control of Croatia.” (Martić Trial
                     Judgment, paras. 427, 430 and 431.)
                    427. The ICTY made similar findings in the Stanišić and Simatović
                 Trial Judgment (paras. 997, 998, 1050 (reproduced at paragraph 375
                 above) and 1000, not reproduced).
                    428. The Court therefore concludes that Croatia’s contentions regard-
                 ing the overall context do not support its assertion that genocidal intent
                 is the only reasonable inference to be drawn.
                    429. As regards the events at Vukovar, to which Croatia has given par-
                 ticular attention, the Court notes that in the Mrkšić et al. case, the ICTY
                 found that the attack on that city constituted a response to the declara-
                 tion of independence by Croatia, and above all, an assertion of Serbia’s
                 grip on the SFRY :
                        “471. . . . The declaration by Croatia of its independence of the
                     Yugoslav Federation and the associated social unrest within Croatia
                     was met with determined military reaction by Serb forces. It was in
                     this political scenario that the city and people of Vukovar and those
                     living in its close proximity in the Vukovar municipality became a
                     means of demonstrating to the Croatian people, and those of other
                     Yugoslav Republics, the harmful consequences to them of their
                     actions. In the view of the Chamber the overall effect of the evidence
                     is to demonstrate that the city and civilian population of and around
                     Vukovar were being punished, and terribly so, as an example to those
                     who did not accept the Serb-controlled Federal Government in Bel-
                     grade, and its interpretation of the laws of SFRY, or the role of the
                     JNA for which the maintenance of the Yugoslav Federation was a
                     fundamental element in the continued existence of the JNA.” (Mrkšić
                     Trial Judgment, para. 471.)
                    It follows from the above, and from the fact that numerous Croats of
                 Vukovar were evacuated (see paragraph 436 below), that the existence of
                 intent to physically destroy the Croatian population is not the only rea-
                 sonable conclusion that can be drawn from the illegal attack on Vukovar.
                    430. In the same case, the ICTY made findings as to the intent of the
                 perpetrators of the ill‑treatment inflicted on the prisoners of war at
                 Ovčara, 20 November 1991 :
                        “535. The Serb TO and paramilitary harboured quite intense feel-
                     ings of animosity toward the Croat forces. The prisoners of war taken
                     from Vukovar hospital and transported to Ovčara were representative
                     of the Croat forces and, therefore, represented their enemy. The bru-
                     tality of the beatings that took place at Ovčara on 20 November 1991
                     by the Serb TO and paramilitaries, and possibly by some JNA soldiers
                     acting on their own account, is evidence of the hatred and the desire
                     to punish the enemy forces. It is clear from this evidence, in the Cham-
                     ber’s finding, that acts of mistreatment outside and inside the hangar

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                             application of genocide convention (judgment)                126

                       were intended to punish the prisoners for their involvement, or
                       believed involvement, in Croat forces before the fall of Vukovar.”
                       (Mrkšić Trial Judgment, para. 535.)
                    The conclusions of the ICTY indicate that the intent of the perpetra-
                 tors of the ill‑treatment at Ovčara was not to physically destroy the mem-
                 bers of the protected group, as such, but to punish them because of their
                 status as enemies, in a military sense.
                     (b) Opportunity
                    431. Croatia contends that the JNA and Serb forces systematically
                 committed acts that constitute the actus reus of genocide within the mean-
                 ing of Article II (a) to (d) of the Convention once the opportunity to do
                 so was presented to them, i.e., when they attacked and occupied various
                 Croat localities. According to Croatia, this factor demonstrates that their
                 intention was to destroy the Croat group in whole or in part.

                   432. Serbia contests Croatia’s approach. It refers to several instances
                 of the JNA and Serb forces sparing Croats by not killing them. More-
                 over, it argues that the criterion of opportunity must be weighed against
                 that of substantiality. For Serbia, the limited number of Croat victims,
                 seen in the light of the opportunities for killing supposedly available to
                 the JNA and Serb forces, cannot give rise to an inference that an intent to
                 destroy was present.

                   433. The Court will not seek to determine whether or not, in each of
                 the localities it has previously considered, the JNA and Serb forces made
                 systematic use of the opportunities to physically destroy Croats.

                   434. The Court considers, on the other hand, that the mass forced dis-
                 placement of Croats is a significant factor in assessing whether there was
                 an intent to destroy the group, in whole or in part. The Court has previ-
                 ously found that Croatia has not demonstrated that such forced displace-
                 ment constituted the actus reus of genocide within the meaning of
                 Article II (c) of the Convention (see paragraph 377 above). Nonetheless,
                 the Court recalls that the fact of forced displacement occurring in parallel
                 to acts falling under Article II of the Convention may be “indicative of
                 the presence of a specific intent (dolus specialis) inspiring those acts” (see
                 paragraph 162 above quoting I.C.J. Reports 2007 (I), p. 123, para. 190).

                    435. In the present case, as emerges in particular from the findings of
                 the ICTY, forced displacement was the instrument of a policy aimed at
                 establishing an ethnically homogeneous Serb State. In that context, the
                 expulsion of the Croats was brought about by the creation of a coercive
                 atmosphere, generated by the commission of acts including some that con-
                 stitute the actus reus of genocide within the meaning of Article II (a) and

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                 (b) of the Convention. Those acts had an objective, namely the forced
                 displacement of the Croats, which did not entail their physical destruction.
                 The ICTY has estimated that between April 1991 and April 1992, between
                 80,000 and 100,000 persons fled the SAO Krajina (and then the RSK)
                 (Stanišić and Simatović Trial Judgment, para. 997). The Court finds that
                 the acts committed by the JNA and Serb forces essentially had the effect
                 of making the Croat population flee the territories concerned. It was not a
                 question of systematically destroying that population, but of forcing it to
                 leave the areas controlled by these armed forces.
                    436. Regarding the events at Vukovar, to which Croatia has given par-
                 ticular attention, the Court notes that, in the Mrkšić et al. case, the ICTY
                 established several instances of the JNA and Serb forces evacuating civil-
                 ians, particularly Croats (Mrkšić Trial Judgment, paras. 157‑160, 168,
                 204 and 207). The ICTY further found that Croat combatants captured
                 by the JNA and Serb forces had not all been executed. Thus, following
                 their surrender to the JNA, an initial group of Croat combatants was
                 transferred on 18 November 1991 to Ovčara, and then to Sremska Mitro-
                 vica in Serbia, where they were held as prisoners of war (ibid.,
                 paras. 145‑155). Similarly, a group of Croat combatants held at Vele-
                 promet was transferred to Sremska Mitrovica on 19‑20 November 1991,
                 while civilians not suspected of having fought alongside Croat forces were
                 evacuated to destinations in Croatia or Serbia (ibid., para. 168). This
                 shows that, in many cases, the JNA and Serb forces did not kill those
                 Croats who had fallen into their hands.

                    437. The Court considers that it is also relevant to compare the size of
                 the targeted part of the protected group with the number of Croat vic-
                 tims, in order to determine whether the JNA and Serb forces availed
                 themselves of opportunities to destroy that part of the group. In this con-
                 nection, Croatia put forward a figure of 12,500 Croat deaths, which is
                 contested by Serbia. The Court notes that, even assuming that this figure
                 is correct — an issue on which it will make no ruling — the number of
                 victims alleged by Croatia is small in relation to the size of the targeted
                 part of the group.
                    The Court concludes from the foregoing that Croatia has failed to
                 show that the perpetrators of the acts which form the subject of the prin-
                 cipal claim availed themselves of opportunities to destroy a substantial
                 part of the protected group.

                                                      *
                    438. Croatia points to activities of Serb paramilitaries as evidence of
                 the dolus specialis. In particular, it relies upon a videotape of Zeljko
                 Ražnatović or “Arkan”, leader of a Serb paramilitary group known as
                 the “Serbian Volunteer Guard” or “Arkan’s Tigers”, made during the
                 siege of Vukovar on 1 November 1991, showing him instructing his forces
                 to take care not to kill Serbs and saying that since Serbs were in the base-

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                            application of genocide convention (judgment)                 128

                 ments of buildings and the Croats were upstairs, rocket launchers should
                 be used to “neutralize the first floor”. Even if Arkan’s actions were attrib-
                 utable to Serbia, this speech appears to be but one isolated phase in the
                 very lengthy siege of Vukovar, a siege in which, as the Court has already
                 found (see paragraphs 218‑219, 301 and 305 above), the degree of vio-
                 lence used by attacking forces was excessive, and during which grave suf-
                 fering was undoubtedly caused to the civilian population as Serbia
                 acknowledged at least to some extent. It is difficult to infer anything from
                 one isolated instance.

                   Croatia also relies upon the Report of a JNA security officer, dated
                 13 October 1991, which stated that Arkan’s troops were “committing
                 uncontrolled genocide and various acts of terrorism” in the greater area
                 of Vukovar. The Serbian Assistant Minister of Defence was informed of
                 the Report. Yet taking the Report as a whole, no justification or exam-
                 ples are given to support the use of the word “genocide”.

                   439. Finally, the Court considers that the series of 17 factors invoked
                 by Croatia do not lead to the conclusion that there was an intent to
                 destroy, in whole or in part, the Croats in the regions concerned.

                     Conclusion on the dolus specialis
                   440. Thus, in the opinion of the Court, Croatia has not established that
                 the only reasonable inference that can be drawn from the pattern of con-
                 duct it relied upon was the intent to destroy, in whole or in part, the Croat
                 group. The acts constituting the actus reus of genocide within the meaning
                 of Article II (a) and (b) of the Convention were not committed with the
                 specific intent required for them to be characterized as acts of genocide.

                    The Court further notes that the ICTY Prosecutor has never charged
                 any individual on account of genocide against the Croat population in
                 the context of the armed conflict which took place in the territory of Cro-
                 atia in the period 1991‑1995 (see paragraph 187 above).

                                 C. General Conclusion on Croatia’s Claim
                    441. It follows from the foregoing that Croatia has failed to substanti-
                 ate its allegation that genocide was committed. Accordingly, no issue of
                 responsibility under the Convention for the commission of genocide can
                 arise in the present case. Nor can there be any question of responsibility
                 for a failure to prevent genocide, a failure to punish genocide, or complic-
                 ity in genocide.
                    In view of the fact that dolus specialis has not been established by Cro-
                 atia, its claims of conspiracy to commit genocide, direct and public incite-

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                 ment to commit genocide, and attempt to commit genocide also
                 necessarily fail.
                   Accordingly, Croatia’s claim must be dismissed in its entirety.

                    442. Consequently, the Court is not required to pronounce on the
                 inadmissibility of the principal claim as argued by Serbia in respect of
                 acts prior to 8 October 1991. Nor does it need to consider whether acts
                 alleged to have taken place before 27 April 1992 are attributable to the
                 SFRY, or, if so, whether Serbia succeeded to the SFRY’s responsibility
                 on account of those acts.

                                                       *
                                                   *       *

                        VI. Consideration of the Merits of the Counter‑Claim

                   443. In its Counter‑Memorial Serbia made a counter‑claim containing
                 a number of submissions. In its final version, as presented by the Agent of
                 Serbia at the close of the public hearings, that counter‑claim is repro-
                 duced in extenso in paragraph 51 of the present Judgment. It constitutes
                 Section II of Serbia’s final submissions, and contains four paragraphs
                 numbered 6 to 9.

                    444. In substance, Serbia asks the Court to declare that Croatia has
                 violated the Genocide Convention by committing against the Serb
                 national and ethnical group living in Croatia, during and after Operation
                 Storm in 1995, acts prohibited by Article II of the Convention, with intent
                 to destroy that group as such, in whole or in part (paragraph 6 of the final
                 submissions).
                    Alternatively, Serbia claims — and asks the Court to declare — that
                 Croatia has committed acts amounting to conspiracy to commit geno-
                 cide, incitement and attempt to commit genocide and complicity in geno-
                 cide, within the meaning of Article III of the Convention (para. 7).

                    Additionally, Serbia asks the Court to declare that Croatia has violated
                 its obligations under the Convention to punish the perpetrators of the
                 acts referred to in the preceding paragraphs (para. 8).
                    Finally, Serbia asks the Court, having found that Croatia’s interna-
                 tional responsibility has been engaged, to order the latter to take a num-
                 ber of measures in order to ensure full compliance with its obligations
                 under the Convention and to redress the injurious consequences of the
                 internationally wrongful acts attributable to it (para. 9).
                    445. The Court will begin by examining the submissions set out in
                 paragraph 6 of Serbia’s final submissions. The result of this examination
                 will largely condition the way in which it approaches the submissions set
                 out in the subsequent paragraphs.

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                    A. Examination of the Principal Submissions in the Counter‑Claim :
                    Whether Acts of Genocide Attributable to Croatia Were Committed
                 against the National and Ethnical Group of Serbs Living in Croatia during
                                        and after Operation Storm
                    446. Serbia claims that Croatia committed the following acts defined in
                 Article II of the Convention as constituting genocide : killings of members
                 of the national and ethnical group of Serbs living in Croatia (II (a)) ;
                 causing serious bodily or mental harm to members of the same group
                 (II (b)) ; deliberately inflicting on the group conditions of life calculated
                 to bring about its physical destruction in whole or in part (II (c)), all of
                 these acts having been committed with intent to destroy, in whole or in
                 part, the group as such.

                    447. Two points were not disputed between the Parties, and may be
                 regarded by the Court as settled.
                    448. First, the Serbs living in Croatia at the time of the events in ques-
                 tion — who represented a minority of the population — did indeed con-
                 stitute a “national [or] ethnical” “group” within the meaning of Article II
                 of the Genocide Convention, and the Serbs living in the Krajina region,
                 who were directly affected by Operation Storm, constituted a “substantial
                 part” of that national or ethnical group, in the sense in which that expres-
                 sion is used in paragraph 198 of the Judgment rendered by the Court in
                 2007 in the case between Bosnia and Herzegovina and Serbia and Monte-
                 negro (see paragraph 142 above).
                    The Court therefore concludes that, if acts falling within the terms of
                 Article II of the Convention were committed against the Krajina Serbs,
                 and if they were perpetrated with intent to destroy that group of persons,
                 it should accordingly find that the constituent elements of genocide were
                 present, since the requirement of “intent to destroy at least a substantial
                 part of the [national or ethnical] group” would be met (see Application of
                 the Convention on the Prevention and Punishment of the Crime of Genocide
                 (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment,
                 I.C.J. Reports 2007 (I), p. 126, para. 198).
                    449. Secondly, the acts alleged by Serbia — or at least the vast major-
                 ity of them — assuming them to be proved, were committed by the regu-
                 lar armed forces or police of Croatia.
                    It follows that these acts would be such as to engage Croatia’s interna-
                 tional responsibility if they were unlawful, simply because they were car-
                 ried out by one or more of its organs. That would remain true, under the
                 law governing the international responsibility of States, even if the author
                 of the acts had acted contrary to the instructions given or exceeded his or
                 her authority (see Armed Activities on the Territory of the Congo (Demo‑
                 cratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005,
                 p. 242, para. 214). Thus the Court’s consideration of the counter‑claim
                 presents no difficulty in terms of the attributability of the alleged unlawful

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                 acts to the State whose international responsibility is in issue (namely the
                 Applicant).

                   450. On the other hand, the Parties completely disagree on two key
                 questions.
                   First, Croatia denies that the greater part of the acts alleged by Serbia
                 even took place ; and secondly, it denies that those acts, even if some of
                 them were proved, were carried out with intent to destroy, in whole or in
                 part, the national or ethnical group of the Croatian Serbs as such.

                    451. It is these two questions that the Court will now examine. It will
                 first seek to ascertain whether acts constituting the physical element of
                 genocide — that is to say, acts falling within the categories defined in
                 Article II of the Convention — were in fact committed (the issue of the
                 actus reus). It will then proceed, if any of the acts in question have been
                 established, to rule on the question of whether they were committed with
                 genocidal intent (the issue of the dolus specialis).

                 (1) The actus reus of genocide
                   452. Serbia contends that Croatia committed various acts falling
                 within the scope of subparagraphs (a), (b) and (c) of Article II of the
                 Genocide Convention, namely :
                 — indiscriminate shelling of Krajina towns, in particular Knin, allegedly
                   resulting in the killing of Serb civilians within the meaning of sub-
                   paragraph (a) of Article II ;
                 — forced displacement of the Serb population of the Krajina, falling
                   within the scope of subparagraph (c) of Article II ;
                 — the killing of Serbs fleeing in columns the towns under attack, within
                   the scope of subparagraph (a) of Article II ;
                 — the killing of Serbs who remained, after Operation Storm, within
                   UN‑protected areas of the Krajina (UNPAs), acts which are also cov-
                   ered by subparagraph (a) of Article II ;
                 — infliction of ill‑treatment on Serbs during and after Operation Storm,
                   within the scope of subparagraphs (b) and (c) of Article II ;

                 — large‑scale destruction and looting of Serb property during and after
                   Operation Storm, within the scope of subparagraph (c) of Article II.

                    453. Serbia further cites administrative and other measures allegedly
                 taken by Croatia to prevent Serbs having fled the Krajina during Opera-
                 tion Storm from subsequently returning home.
                    However, in the Court’s view, this matter was not relied on by Serbia as
                 evidence of the actus reus of genocide, but rather as evidence of specific
                 intent to destroy the targeted group in whole or in part, in other words, to

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                 prove the dolus specialis. It will accordingly be discussed later, under
                 point 2.
                     (a) The evidence presented by Serbia in support of the facts alleged

                    454. In support of its factual allegations, Serbia relies on a range of
                 evidence from various sources, the bulk of which has been challenged by
                 Croatia in terms of its relevance and credibility.
                    455. First, Serbia relies on publications by two non‑governmental
                 organizations, one Croatian, the other Serbian : the Croatian Helsinki
                 Committee for Human Rights (hereinafter CHC), and the Veritas organi-
                 zation.
                    The first of these published a report in 2001 in Zagreb, entitled Military
                 Operation Storm and Its Aftermath ; the second has published a list of the
                 victims of Operation Storm, which is regularly updated.

                    456. Croatia challenges the credibility of these two publications. It
                 notes that they contain numerous errors, inaccuracies and inconsistencies,
                 and that, moreover, the Veritas organization is neither independent nor
                 impartial, in particular because its director held high office under several
                 Governments of the RSK.
                    457. The Court agrees that neither the CHC Report nor that of Veritas
                 possesses such evidential weight as to enable the Court to consider a fact
                 proved solely on the basis of those documents ; indeed, Serbia itself has
                 admitted that the reports contain factual errors. However, the Court does
                 not consider those documents as so lacking in informational value that
                 they should be wholly disregarded. The Court may take account of the
                 information they contain whenever it appears to corroborate evidence
                 from other sources. This approach is similar to that taken by the ICTY
                 Trial Chamber in relation to the CHC Report in the Gotovina case (Goto‑
                 vina Trial Judgment, para. 50), to which the Court will return later in the
                 present Judgment.
                    458. Serbia further bases its allegations on a number of other docu-
                 ments or testimonies, in particular : the Report on the situation of human
                 rights in the territory of the former Yugoslavia of 7 November 1995, pre-
                 sented to the United Nations General Assembly and the Security Council
                 by Mrs. Elisabeth Rehn, Special Rapporteur of the Commission on
                 Human Rights, pursuant to resolution 1995/89 of the said Commission
                 and decision 1995/920 of the Economic and Social Council ; a Report
                 from the non‑governmental organization Human Rights Watch, entitled
                 “Impunity for Abuses Committed during ‘Operation Storm’, and the
                 Denial of the Right of Refugees to Return to the Krajina”, dating from
                 August 1996 ; the expert report of Mr. Reynaud Theunens, entitled “Cro-
                 atian Armed Forces and Operation Storm”, submitted by the Prosecu-
                 tor’s Office of the ICTY in the Gotovina case ; the statements of witnesses
                 before national courts in Serbia and Bosnia and Herzegovina regarding

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                 the events at issue in the present case ; the testimony of individuals heard
                 by the ICTY in the Gotovina case ; and finally, the written statements of
                 seven witnesses and a witness‑expert presented by Serbia in the present
                 case, in respect of whom Croatia waived its right of cross‑examination.

                    459. The Court considers that it must give evidential weight to the first of
                 the above‑mentioned documents, by reason both of the independent status
                 of its author, and of the fact that it was prepared at the request of organs of
                 the United Nations, for purposes of the exercise of their functions. The
                 Court notes that Croatia has not disputed the objective nature of that
                 report, even though it does not agree with certain of its factual findings.
                    The Court will accord evidential weight to the statements by the eight
                 individuals called by Serbia to testify before it. However, it should be
                 emphasized that the fact that Croatia declined to cross‑examine those
                 witnesses in no sense implies an obligation on the Court to accept all of
                 their testimony as accurate. Moreover, Croatia clearly stated that its deci-
                 sion not to cross‑examine the witnesses did not mean that it accepted
                 their testimonies as accurate ; on the contrary, it expressed significant res-
                 ervations in relation to some of them.
                    The other documents and testimony referred to in the preceding para-
                 graph will be duly considered by the Court, without, however, being
                 regarded as conclusive proof of the facts alleged.
                    460. Finally, the Parties cited extensively from the Trial and Appeals
                 Chamber Judgments of the ICTY in the Gotovina case, while largely dis-
                 agreeing on the conclusions to be drawn from them.
                    The Parties’ disagreement actually relates to the first of Serbia’s claims,
                 namely that Croatia carried out indiscriminate shelling of the Krajina
                 towns at the start of Operation Storm, thus causing numerous deaths
                 among the civilian population.

                    The scope of the ICTY decisions in the Gotovina case will thus be
                 examined below, in relation to the issue of whether that claim has been
                 effectively established.
                    461. It suffices, at this stage, to recall that the fact that no high‑ranking
                 Croatian civilian or military officer has been found guilty of genocide by
                 the ICTY — or indeed of any other charge — in relation to the events
                 which took place during and after Operation Storm does not in itself pre-
                 clude the Court from finding that Croatia’s international responsibility is
                 engaged for violation of the Genocide Convention (see in this regard
                 Application of the Convention on the Prevention and Punishment of the
                 Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
                 Judgment, I.C.J. Reports 2007 (I), pp. 119‑120, paras. 180‑182). Like-
                 wise, the fact that the ICTY Prosecutor has never included a count of
                 genocide in the indictments in cases relating to Operation Storm does not
                 automatically mean that Serbia’s counter‑claim must be dismissed.

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                    Indeed, the Parties do not appear to disagree on these two proposi-
                 tions. Croatia, however, emphasizes that the absence of any conviction by
                 the ICTY and, moreover, the absence of any prosecution for genocide in
                 relation to Operation Storm greatly weakens the thesis underlying Ser-
                 bia’s counter‑claim, namely that genocide was committed by the organs
                 of Croatia.
                     (b) Whether the acts alleged by Serbia have been effectively proved

                    462. The Court will now examine the various categories of acts alleged
                 by Serbia in support of its counter‑claim, in order to ascertain whether, in
                 each case, they have been proved on the basis of the evidence presented to
                 the Court. It will do so following the order indicated in paragraph 452
                 above, namely : (i) killing of civilians as a result of the indiscriminate
                 shelling of Krajina towns ; (ii) forced displacement of the Serb population
                 from the Krajina ; (iii) killing of Serbs fleeing in columns from the towns
                 under attack ; (iv) killing of Serbs having remained in the areas of the
                 Krajina protected by the United Nations ; (v) infliction of ill‑treatment on
                 Serbs during and after Operation Storm.
                         (i) K
                              illing of civilians as a result of the allegedly indiscriminate
                             shelling of Krajina towns
                    463. According to Serbia, from the start of the military actions in con-
                 nection with Operation Storm, Croatian armed forces indiscriminately
                 shelled several towns and villages in the Krajina, an area with a majority
                 Serb population, namely Knin, the most important town in the region,
                 but also Benkovac, Obrovac, Gračac, Bosansko, Grahovo, Kijani,
                 Kistanje, Uzdolje, Kovačić, Plavno, Polača and Buković.
                    The shelling was allegedly aimed both at military targets — where these
                 existed — and the civilian population, causing a large number of deaths
                 among civilians. According to the Respondent, in the municipality of
                 Knin alone there were 357 deaths, including 237 civilians, many of them
                 as a result of indiscriminate shelling. Moreover, according to Serbia the
                 shelling was ordered with the intention of forcing the Serb population to
                 flee the Krajina. This aspect, which relates to the second category of acts
                 alleged by Serbia, namely the forced displacement of the Serb population,
                 will be discussed in the following section.
                    According to Croatia, on the contrary, the shelling of Krajina towns
                 was directed exclusively at military targets, and if it caused civilian casu-
                 alties — the number of which, in any event, was far lower than that
                 alleged by Serbia — that was not the consequence of any deliberate intent
                 to target the civilian population, but solely of the proximity of military
                 objectives to areas inhabited by that population. In support of its posi-
                 tion, Croatia relies on the findings of the ICTY Appeals Chamber in the
                 Gotovina case.

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                   464. Since the Parties draw essentially contrary conclusions from the
                 decisions of the ICTY in the Gotovina case, and since those decisions are
                 highly relevant for purposes of the present case, the Court will briefly
                 discuss the proceedings before the ICTY in that case, and summarize the
                 decisions rendered at first instance, and then on appeal.

                   465. The proceedings which resulted in those decisions were initiated
                 by the ICTY Prosecutor in 2001 and 2006 against Ante Gotovina, Ivan
                 Cermak and Mladen Markač, three Croat generals who had played vari-
                 ous leading roles in August 1995 in connection with Operation Storm, the
                 declared aim of which was to enable the Government of Croatia to regain
                 control over the Krajina, then controlled by the authorities of the RSK.

                   The main charges against all three accused were persecution, killing
                 and murder, deportation and forcible transfer of the population, cruel
                 and inhumane acts and the wanton destruction of towns and villages.

                    In substance, the Prosecutor argued that Croatian armed forces had
                 carried out indiscriminate artillery attacks on a large number of towns
                 and villages in the Krajina, deliberately targeting civilian areas as well as
                 military objectives. Those attacks had caused the deaths of large numbers
                 of civilians, and the destruction of property unconnected with any mili-
                 tary target, as well as the departure of the majority of the population,
                 which had fled the shelled areas.
                    466. By its Judgment of 15 April 2011, the Trial Chamber acquitted
                 General Cermak, but convicted Generals Gotovina and Markač, senten
                 cing them to terms of imprisonment of 24 and 18 years respectively.

                    The Chamber held that these two defendants had taken part in a joint
                 criminal enterprise aimed at the expulsion of the Serb civilian population
                 from the Krajina, through indiscriminate shelling of the four towns of
                 Knin, Benkovac, Obrovac and Gračac, the purpose of which — alongside
                 any strictly military objectives — was to terrorize and demoralize the
                 population so as to force it to flee.
                    The Trial Chamber accordingly found the two accused guilty of, inter
                 alia, murder, deportation, persecution, destruction and inhumane acts
                 (Gotovina Trial Judgment, paras. 2619, 2622).
                    467. In order to reach this conclusion, the Trial Chamber relied, first,
                 on certain documents, including the transcript of a meeting held at Brioni
                 on 31 July 1995, just a few days before the launch of the operation, under
                 the chairmanship of President Tudjman (that transcript will be discussed
                 later in the present Judgment) and secondly, and above all, on the
                 so‑called “200 Metre Standard” (ibid., paras. 1970‑1995, 2305, 2311),
                 under which only shells impacting less than 200 metres from an identifi-
                 able military target could be regarded as having been aimed at that target,
                 whilst those impacting more than 200 metres from a military target should
                 be regarded as evidence that the attack was deliberately aimed at both

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                            application of genocide convention (judgment)                136

                 civilian and military targets, and was therefore indiscriminate (Gotovina
                 Trial Judgment, para. 1898).

                    Applying that standard to the case before it, the Trial Chamber found
                 that the artillery attacks on the four towns mentioned above (but not on
                 the other Krajina towns and villages) had been indiscriminate, since a
                 large proportion of shells had fallen over 200 metres from any identifiable
                 military target (ibid., paras. 1899‑1906, 1917‑1921, 1927‑1933, 1939‑1941).

                    468. In its Judgment of 16 November 2012 in the Gotovina case, the
                 Appeals Chamber disagreed with the Trial Chamber’s analysis and
                 reversed the latter’s decision.
                    The Appeals Chamber held that the “200 Metre Standard” had no
                 basis in law and lacked any convincing justification. The Chamber accord-
                 ingly concluded that the Trial Chamber could not reasonably find, simply
                 by applying that standard, that the four towns in question had been
                 shelled indiscriminately. It further held that the Trial Chamber’s reason-
                 ing was essentially based on the application of the standard in question,
                 and that none of the evidence before the Court — particularly the Brioni
                 Transcript — showed convincingly that the Croatian armed forces had
                 deliberately targeted the civilian population (Gotovina Appeals Judgment,
                 paras. 61, 64‑65, 77‑83, 93). The Appeals Chamber accordingly found
                 that the prosecution had failed to prove a “joint criminal enterprise”, and
                 acquitted the two accused on all of the counts in the indictment (includ-
                 ing murder and deportation) (ibid., para. 158).

                   469. The Court recalls, as it stated in 2007, that it “should in principle
                 accept as highly persuasive relevant findings of facts made by the Tribu-
                 nal at trial, unless of course they have been upset on appeal” (see para-
                 graph 182 above).

                   That should lead the Court, in the present case, to give the greatest
                 weight to factual findings by the Trial Chamber which were not reversed
                 by the Appeals Chamber, and to give due weight to the findings and
                 determinations of the Appeals Chamber on the issue of whether or not
                 the shelling of the Krajina towns during Operation Storm was indiscrimi-
                 nate.
                   470. Against this approach, Serbia argued that the findings of an ICTY
                 Appeals Chamber should not necessarily be accorded more weight than
                 those of a Trial Chamber. Indeed, according to Serbia, the members of
                 the Appeals Chamber are appointed at random and vary from one case
                 to another, so that they have no greater experience or authority than
                 those of the Trial Chamber having ruled on the same case. Serbia argues
                 that the main difference between the two benches appears to be that the
                 former consists of five judges, whilst the latter is composed of three
                 judges. Moreover, the decision of the Trial Chamber was unanimous

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                 when it convicted Gotovina and Markač, whereas the Appeals Chamber
                 reached its decision to acquit them by a majority of three against two.
                 Serbia points out that, overall, the majority of the judges having sat in the
                 Gotovina case were of the view that the Croatian forces did engage in
                 indiscriminate shelling of the four above‑mentioned Krajina towns.

                    It would follow, according to Serbia, that in the particular circum-
                 stances of the present case the Court should not attach any greater impor-
                 tance to the findings of the Appeals Chamber than to those of the Trial
                 Chamber, and should form its own view of the persuasiveness of the
                 arguments accepted by each of the two benches.

                   471. Irrespective of the manner in which the members of the Appeals
                 Chamber are chosen — a matter on which it is not for the Court to pro-
                 nounce — the latter’s decisions represent the last word of the ICTY on
                 the cases before it when one of the parties has chosen to appeal from the
                 Trial Chamber’s Judgment. Accordingly, the Court cannot treat the find-
                 ings and determinations of the Trial Chamber as being on an equal foot-
                 ing with those of the Appeals Chamber. In cases of disagreement, it is
                 bound to accord greater weight to what the Appeals Chamber Judgment
                 says, while ultimately retaining the power to decide the issues before it on
                 the facts and the law.

                    472. The Court concludes from the foregoing that it is unable to find
                 that there was any indiscriminate shelling of the Krajina towns deliber-
                 ately intended to cause civilian casualties. It would only be in exceptional
                 circumstances that it would depart from the findings reached by the ICTY
                 on an issue of this kind. Serbia has indeed drawn the Court’s attention to
                 the controversy aroused by the Appeals Chamber’s Judgment. However,
                 no evidence, whether prior or subsequent to that Judgment, has been put
                 before the Court which would incontrovertibly show that the Croatian
                 authorities deliberately intended to shell the civilian areas of towns inhab-
                 ited by Serbs. In particular, no such intent is apparent from the Brioni
                 Transcript, which will be subjected to a more detailed analysis below in
                 relation to the existence of the dolus specialis. Nor can such intent be
                 regarded as incontrovertibly established on the basis of the statements by
                 persons having testified before the ICTY Trial Chamber in the Gotovina
                 case, and cited as witnesses by Serbia in the present case.

                    473. Serbia further argues that, even if the Court were unwilling to
                 reject the finding of the Appeals Chamber that the artillery attacks on the
                 Krajina towns were not indiscriminate, and thus lawful under interna-
                 tional humanitarian law, that would not prevent it from holding that
                 those attacks, conducted in the course of an armed conflict, were unlaw-
                 ful under the Genocide Convention, if they were motivated by an intent
                 to destroy the Serb population of the Krajina, in whole or in part.

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                   474. There can be no doubt that, as a general rule, a particular act may
                 be perfectly lawful under one body of legal rules and unlawful under
                 another. Thus it cannot be excluded in principle that an act carried out
                 during an armed conflict and lawful under international humanitarian
                 law can at the same time constitute a violation by the State in question of
                 some other international obligation incumbent upon it.

                    However, it is not the task of the Court in the context of the counter‑
                 claim to rule on the relationship between international humanitarian law
                 and the Genocide Convention. The question to which it must respond is
                 whether the artillery attacks on the Krajina towns in August 1995, in so
                 far as they resulted in civilian casualties, constituted “killing [of] members
                 of the [Krajina Serb] group”, within the meaning of Article II (a) of the
                 Genocide Convention, so that they may accordingly be regarded as con-
                 stituting the actus reus of genocide.

                    “Killing” within the meaning of Article II (a) of the Convention always
                 presupposes the existence of an intentional element (which is altogether
                 distinct from the “specific intent” necessary to establish genocide), namely
                 the intent to cause death (see paragraph 186 of the 2007 Bosnia and Her‑
                 zegovina v. Serbia and Montenegro Judgment, which states that “‘[k]illing’
                 must be intentional”, cited in the present Judgment at paragraph 156
                 above). It follows that, if one takes the view that the attacks were exclu-
                 sively directed at military targets, and that the civilian casualties were not
                 caused deliberately, one cannot consider those attacks, inasmuch as they
                 caused civilian deaths, as falling within the scope of Article II (a) of the
                 Genocide Convention.

                   475. The Court concludes for the foregoing reasons that it has not
                 been shown that “killing[s] [of] members of the [protected] group”, within
                 the meaning of Article II of the Convention, were committed as a result
                 of the artillery attacks on towns in that region during Operation Storm in
                 August 1995.
                        (ii) Forced displacement of the Krajina Serb population
                   476. Serbia contends that the mass exodus of Serbs from the Krajina,
                 whose numbers it estimates at a total of between 180,000 and 220,000
                 persons, was a forcible one, resulting from a political plan deliberately
                 designed by the Croatian authorities to force the population of Serb ori-
                 gin living in Croatia to leave and to be replaced by a population of Croat
                 origin.
                   Croatia disputes this claim, arguing that the Serbs who left the Krajina
                 during and immediately after Operation Storm did so because of the risk
                 of violence commonly associated with an armed conflict, or of the fear
                 generally instilled in them by the Croatian forces, but without being
                 forced to do so by the latter. It further contends that “the ‘exodus’ of a

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                            application of genocide convention (judgment)                 139

                 majority of the Serb population was pursuant to a decision to evacuate
                 taken by the ‘RSK’s’ ‘Supreme Defence Council’”. Croatia cites the Judg-
                 ment of the ICTY Appeals Chamber in Gotovina, in which the Chamber
                 overturned the findings of the Trial Chamber that the Serb exodus had
                 been provoked by unlawful attacks on the towns of Knin, Benkovac,
                 Gračac and Obrovac.

                   477. The only question facing the Court is whether genocide was com-
                 mitted during Operation Storm. The forced displacement of a population,
                 even if proved, would not in itself constitute the actus reus of genocide.

                   As the Court stated in its 2007 Judgment in the Bosnia and Herzegov‑
                 ina v. Serbia and Montenegro case,
                     “[ethnic cleansing] can only be a form of genocide within the meaning
                     of the Convention, if it corresponds to or falls within one of the cat-
                     egories of acts prohibited by Article II of the Convention. Neither the
                     intent, as a matter of policy, to render an area ‘ethnically homogene-
                     ous’, nor the operations that may be carried out to implement such
                     policy, can as such be designated as genocide . . . [the] deportation or
                     displacement of the members of a group, even if effected by force, is
                     not necessarily equivalent to destruction of that group . . . This is not
                     to say that acts described as ‘ethnic cleansing’ may never constitute
                     genocide, if they are such as to be characterized as, for example,
                     ‘deliberately inflicting on the group conditions of life calculated to
                     bring about its physical destruction in whole or in part’, contrary to
                     Article II, paragraph (c), of the Convention, provided such action is
                     carried out with the necessary specific intent (dolus specialis), that is
                     to say with a view to the destruction of the group, as distinct from its
                     removal from the region.” (Application of the Convention on the Pre‑
                     vention and Punishment of the Crime of Genocide (Bosnia and Herze‑
                     govina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I),
                     p. 123, para. 190 ; emphasis in the original.)

                    478. Combined with other elements, in particular with the commission
                 of acts prohibited by Article II, the forced displacement of a population
                 may contribute to the proof of genocidal intent (see paragraphs 162‑163
                 above).
                    479. In the present case, the Court notes that it is not disputed that a
                 substantial part of the Serb population of the Krajina fled that region as
                 a direct consequence of the military actions carried out by Croatian forces
                 during Operation Storm, in particular the shelling of the four towns
                 referred to above. It further notes that the transcript of the Brioni meet-
                 ing, to which it will return later (see paragraphs 501‑507 below), makes it
                 clear that the highest Croatian political and military authorities were well
                 aware that Operation Storm would provoke a mass exodus of the Serb

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                 population ; they even to some extent predicated their military planning
                 on such an exodus, which they considered not only probable, but desir-
                 able (see paragraph 504 below).

                    480. In any event, even if it were proved that it was the intention of the
                 Croatian authorities to bring about the forced displacement of the Serb
                 population of the Krajina, such displacement would only be capable of con-
                 stituting the actus reus of genocide if it was calculated to bring about the
                 physical destruction, in whole or in part, of the targeted group, thus bring-
                 ing it within the scope of subparagraph (c) of Article II of the Convention.
                    The Court finds that the evidence before it does not support such a
                 conclusion. Even if there was a deliberate policy to expel the Serbs from
                 the Krajina, it has in any event not been shown that such a policy was
                 aimed at causing the physical destruction of the population in question.

                        (iii) Killing of Serbs fleeing in columns from the towns under attack
                    481. According to Serbia, the columns of Serbs fleeing their homes
                 were targeted by artillery shelling and aerial bombardment, gunfire by
                 infantry, and even attacks by Croatian civilians. It was in areas of Sector
                 North that the majority of the attacks are alleged to have taken place.
                 Serbia relies on testimony that, in the morning of 4 August 1995, that is
                 to say, at the start of the attack on Knin, long convoys of refugees fleeing
                 neighbouring municipalities were shelled as they passed through Knin.
                 Serbia alleges that the roads followed by those convoys were deliberately
                 shelled by Croatian forces, as were convoys of civilians fleeing Knin on
                 5 August. Serbia further cites Reports by Human Rights Watch and the
                 CHC. According to the latter, on 6 August, Serbs had already formed a
                 column fleeing the Croatian forces which had taken the towns of Knin,
                 Obrovac and Benkovac in Sector South. Convoys of Serb refugees on
                 other roads were allegedly also attacked, and there were likewise attacks
                 on civilians near the towns of Glina and Živorac (on the road between
                 Glina and Dvor), Maja and Cetingrad (in Sector North), as well as on
                 Vrhovine and Petrovac (in Sector South). In support of its allegations,
                 Serbia has also produced statements by 12 witnesses who testified before
                 the courts of Serbia and Bosnia and Herzegovina.

                    Croatia denies these accusations. It asserts that civilians fleeing the
                 towns and villages targeted by the military operation were passing
                 through combat zones, so that they could have been victims of gunfire
                 not specifically directed at them, and that the columns that were fired on
                 also included both civilians and soldiers.
                    Croatia further asserts that almost all of the Respondent’s allegations
                 on this issue are based on the CHC Report, whose reliability it challenges.

                    482. The Court notes that the ICTY did not address the question of

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                            application of genocide convention (judgment)                141

                 attacks on columns of fleeing Serbs. It must rule in this regard on the
                 basis of the evidence presented to it by the Parties.

                    483. The Court finds that the evidence produced by Serbia is not
                 entirely conclusive. As it has indicated, the Court cannot consider a fact
                 proved solely on the basis of the Reports of CHC and Human Rights
                 Watch (see paragraphs 457‑459 above). The statements of witnesses
                 before courts in Serbia and Bosnia and Herzegovina do not always dem-
                 onstrate direct knowledge of the facts. In any event, this evidence leaves
                 a substantial degree of doubt, in particular regarding the scale and origin
                 of the attacks suffered by the columns of Serb refugees.

                    484. However, the Court considers that there is sufficient evidence to
                 establish that such attacks did take place, and that they were in part car-
                 ried out by Croatian forces, or with their acquiescence.

                    In this regard, the Court attaches some weight to the following passage
                 from the Report of Mrs. Elisabeth Rehn, Special Rapporteur of the Com-
                 mission on Human Rights, in which she stated the following concerning
                 Operation Storm :
                        “Fleeing civilians were subject to various forms of harassment,
                     including military assaults and acts by Croatian civilians. On 8 August,
                     a refugee column was shelled between Glina and Dvor, resulting in
                     at least 4 dead and 10 wounded. A serious incident occurred in Sisak
                     on 9 August, when a Croatian mob attacked a refugee column with
                     stones, resulting in the injury of many persons. One woman subse-
                     quently died of her wounds. Croatian police watched passively until
                     United Nations civilian police monitors showed up and prompted
                     them to intervene. The Special Rapporteur met some Krajina refugees
                     in Belgrade. They informed her of the tragic circumstances of their
                     flight, which was particularly traumatic for children, the elderly, the
                     sick and wounded.” (United Nations doc. S/1995/933, p. 7, para. 18.)

                    The Court furthermore gives evidential weight to certain statements
                 cited by Serbia from persons who directly witnessed such attacks and
                 gave evidence before courts in Serbia and Bosnia and Herzegovina during
                 the years following Operation Storm. In particular, Mr. Boris Martinović
                 described how, having fled Glina following the shelling of that town
                 between 4 and 7 August 1995, his refugee column joined another column
                 fleeing Knin and the region of Kordun, and how the entire convoy was
                 then shelled by the Croatian army near Brezovo Polje, and again near
                 Gornji Zirovac. Similarly, Mr. Mirko Mrkobrad, who appeared as a wit-
                 ness in the present case, stated that he had been in a refugee column,
                 which was shelled by Croat forces near a place called Ravno Rasce on
                 8 August 1995.

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                   485. The Court’s conclusion is that killings were in fact committed
                 during the flight of the refugee columns, even if it is unable to determine
                 their number, and even though there is significant doubt as to whether
                 they were carried out systematically. These killings, which fall within the
                 scope of subparagraph (a) of Article II of the Genocide Convention,
                 constitute the actus reus of genocide.
                        (iv) K
                              illing of Serbs having remained in the areas of the Krajina
                             protected by the United Nations
                    486. Serbia contends that during Operation Storm, and after it had
                 been officially terminated, Croatian units in the United Nations protected
                 areas (UNPAs) within the RSK systematically carried out executions of
                 Serb civilians and of soldiers who had laid down their arms. It alleges
                 that, while the majority of the killings were committed in August 1995,
                 they continued until the end of the year, during which time Croatian
                 forces systematically massacred Serbs who had not fled the captured vil-
                 lages. The Respondent admits that, while the majority of killings which
                 took place in Sector South are, in its view, now well established and
                 recorded, the information available regarding those perpetrated in Sector
                 North is more fragmentary. It maintains, however, that Croatian forces
                 carried out systematic executions of Serb civilians having remained in the
                 UNPAs both in the southern and in the northern sectors. It refers in par-
                 ticular to the findings of the Trial Chamber in the Gotovina case, which it
                 says confirm that Croatian military units and special police continued to
                 target the Serb civilian population of the Krajina after Operation Storm
                 and committed more than 40 specified murders in August and Septem-
                 ber 1995.
                    Croatia disputes these allegations. It admits that crimes were commit-
                 ted against Serbs during Operation Storm and in its immediate aftermath,
                 but contends that these were isolated acts, whose perpetrators have been
                 convicted by the Croatian courts ; on the contrary, there were no system-
                 atic killings of Serbs who had remained in the UNPAs. Croatia further
                 challenges the reliability of the CHC Report, on which Serbia’s allega-
                 tions are largely founded.
                    487. The Court finds that the occurrence of summary executions of
                 Serbs in the UNPAs during Operation Storm and the following weeks has
                 been established by the testimony of a number of witnesses heard by the
                 ICTY in the Gotovina case.
                    488. The Trial Chamber was sufficiently convinced by that evidence to
                 accept it as proof that Croatian military units and special police carried
                 out killings of Serbs in at least seven towns of the Krajina.

                   Thus, the Chamber considered it established that four Serbs were killed
                 by one or more members of the Croatian special police on 7 August 1995
                 in Oraovac, Donji Lapac municipality (see Gotovina Trial Judgment,
                 paras. 217‑218), and that three people were killed by members of the Cro-

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                 atian army in Evernik municipality (two on 7 August 1995 in the village
                 of Mokro Polje and one on or about 18 August in the village of Oton
                 Polje) (Gotovina Trial Judgment, paras. 226‑227, 231‑232). It also regarded
                 as proved the killing by members of the Croatian army of three people in
                 the village of Zrmanja, Gračac municipality, in August and September
                 1995 (ibid., paras. 246, 254‑256), of one person in the village of Rudele,
                 Kistanje municipality, at the start of August 1995 (ibid., para. 312), and
                 of one person in Kolarina, in the Benkovac municipality, on 28 Septem-
                 ber 1995 (ibid., paras. 207, 1848). Lastly, it considered it established that
                 a certain number of killings were committed in the municipalities of Knin
                 and Orlič by Croatian military units and special police, with a total of
                 23 victims in Knin between 5 and 25 August 1995 (ibid., paras. 313‑481)
                 and nine in Orlič on 6 August of the same year (ibid., paras. 489‑526).
                 The Trial Chamber found that the victims were all civilians or people
                 who had been detained or otherwise placed hors de combat (ibid.,
                 paras. 1733, 1849).
                     489. While the Reports of the non‑governmental organizations CHC
                 and Veritas cannot be regarded as sufficiently credible to establish the
                 numbers of Serb civilian victims in the UNPAs, their findings nonetheless
                 corroborate other evidence that summary executions occurred. More-
                 over, Croatia itself has admitted that some killings did take place.
                     490. The Court notes that, although the Appeals Chamber overturned
                 the Trial Chamber’s Judgment, it did not reverse the latter’s factual find-
                 ings regarding the killings and ill‑treatment of Serbs by members of the
                 Croatian army and police. Its reasoning, which is summarized above, was
                 based on the fact that the Trial Chamber had erred in finding that the
                 shelling of the “four towns” had been indiscriminate ; that the shelling
                 could not have been found to have been indiscriminate on the basis of the
                 evidence before the Appeals Chamber ; and that accordingly the existence
                 of a joint criminal enterprise to expel the Krajina Serbs had not been
                 established. In so ruling, the Appeals Chamber made no finding, because
                 it had no need to do so, on the various individual acts of killing and
                 ill‑treatment noted — and regarded as proved — by the Trial Chamber.
                 It should be emphasized in this regard that the task of the Appeals Cham-
                 ber was to rule on the individual criminal responsibility of two high‑rank-
                 ing Croatian officials, and not on that of other members of the Croatian
                 armed forces and police having committed crimes during Operation
                 Storm, and — obviously — still less on the international responsibility of
                 Croatia, which is the task incumbent upon this Court.

                    491. The Court accordingly considers that the factual findings in the
                 Trial Chamber Judgment on the killing of Serbs during and after Opera-
                 tion Storm within the UNPAs must be accepted as “highly persuasive”,
                 since they were not “upset on appeal” (Application of the Convention on
                 the Prevention and Punishment of the Crime of Genocide (Bosnia and Her‑

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                               application of genocide convention (judgment)                                                    144

                 zegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I),
                 p. 134, para. 223).

                   492. In addition, the Court also notes that the Report presented by
                 Mrs. Elisabeth Rehn to the General Assembly and the Security Council,
                 which it has already cited, states the following :
                         “Evidence gathered so far indicates that violations of human rights
                     and humanitarian law which were committed during and after Oper-
                     ation Storm include the following :
                     �����������������������������������������������������������������������������������������������������������������
                     (c) Killing of remaining Serb civilians . . .” (United Nations doc. S/
                           1995/933, p. 8, para. 23.)
                    493. The Court finds that acts falling within subparagraph (a) of Arti-
                 cle II of the Genocide Convention were committed by members of the
                 Croatian armed forces against a number of Serb civilians, and soldiers
                 who had surrendered, who remained in the areas of which the Croatian
                 army had taken control during Operation Storm. Those acts are “kill-
                 ings” constituting the actus reus of genocide.
                         (v) Ill‑treatment of Serbs during and after Operation Storm

                   494. Serbia alleges that, during and immediately after Operation
                 Storm, a number of Serbs were ill‑treated and tortured by Croatian
                 forces. It relies on statements by several individuals having testified before
                 courts in Serbia, as well as on the various available reports on Operation
                 Storm. It also cites the findings of the Trial Chamber in the Gotovina case,
                 which purportedly confirm that Croatian military units and special police
                 carried out a large number of inhumane acts and acts of cruel treatment
                 against Serbs throughout August and September 1995.

                   Croatia denies these charges. It contests both the probative value of the
                 evidence produced by Serbia and the scale of the acts invoked. It insists
                 that, in any event, it was never the intention of the Croatian leadership,
                 and of President Tudjman in particular, to destroy the Krajina Serbs.

                   495. The same considerations as those set out in the previous section
                 regarding the allegations of killings of Serbs in the UNPAs lead the Court
                 to the view that there is sufficient evidence of ill‑treatment of Serbs. The
                 ICTY Trial Chamber in the Gotovina case found that such acts had in
                 fact taken place, and considered it as established that Serb civilians and
                 soldiers who had laid down their arms were ill‑treated by Croatian mili-
                 tary units and special police in at least four towns in the Krajina ; it
                 describes these acts in detail in Section 4 of its Judgment.

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                    Thus, the Trial Chamber considered it established that a Serb civilian
                 by the name of Konstantin Drča was arrested outside his home at around
                 4.30 p.m. on 11 August 1995 by people in uniform armed with automatic
                 rifles, and transported to a house in Benkovac, where he was held until
                 15 March 1996. During his detention, members of the Croatian military
                 police (VP) beat him several times and threatened to slit his throat (Goto‑
                 vina Trial Judgment, para. 1111). The Chamber also found that, in
                 Gračac, a civilian by the name of Bogdan Brkić was the victim of ill‑treat-
                 ment by members of the Croatian army (HV), who tied him to a tree, put
                 some textiles underneath him, and set them alight, causing him pain (ibid.,
                 para. 1120). In Knin, on 5 August 1995 and in the days that followed, ten
                 Serbs were — often severely — beaten, threatened, injured and ill‑treated
                 by members of the Croatian military police and army (ibid., paras. 316,
                 322, 476, 1136, 1138, 1141, 1146). The victims were civilians or soldiers
                 who had laid down their arms. In Orlič, on 16 August 1995, members of
                 Croatian military units or special police attempted to burn an elderly
                 Serb woman (ibid., para. 1158).

                   The Trial Chamber described these actions as “inhumane acts” and
                 “cruel treatment” (ibid., para. 1800). For the reasons given above, the
                 Appeals Chamber did not upset those findings.

                    In her Report, the Special Rapporteur of the Commission on Human
                 Rights included among the “violations of human rights and humanitarian
                 law which were committed during and after Operation Storm”, “[t]hreats
                 and ill‑treatment against the Serb minority population by Croatian sol-
                 diers and policemen and also by Croatian civilians” (United Nations
                 doc. S/1995/993, p. 8, para. 23).
                    496. It is clear from the detailed description in the ICTY Trial Cham-
                 ber Judgment in the Gotovina case that many of the acts in question were
                 at least of a degree of gravity such as would enable them to be character-
                 ized as falling within subparagraph (b) of Article II of the Genocide
                 Convention.
                    In light of the preceding conclusion, the Court does not consider it
                 necessary, at this stage of its reasoning, to determine whether those acts,
                 or certain of them, also amounted to “deliberately inflicting on the group
                 conditions of life calculated to bring about its physical destruction in
                 whole or in part” within the meaning of subparagraph (c) of Article II of
                 the Convention.
                        (vi) L
                              arge‑scale destruction and looting of Serb property during and
                             after Operation Storm
                   497. Serbia contends that, during and immediately after Operation
                 Storm, Croatian forces systematically looted and destroyed Serb houses.
                 They are also alleged to have killed and burned livestock, polluted and
                 destroyed wells and stolen stocks of firewood in Serb villages. Croatia

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                             application of genocide convention (judgment)               146

                 disputes the scale of the acts alleged by Serbia and argues that, in any
                 event, the Respondent has failed to show that the Croatian Government
                 in any way planned, ordered, committed or encouraged such acts. More-
                 over, according to Croatia, such acts cannot constitute the actus reus of
                 genocide within the meaning of Article II of the Convention.

                    498. The Court recalls that, in order to come within the scope of Arti-
                 cle II (c) of the Genocide Convention, the acts alleged by Serbia must
                 have been such as to have inflicted on the protected group conditions of
                 life calculated to bring about its physical destruction in whole or in part.
                 The Court finds that the evidence before it does not enable it to reach
                 such a conclusion in the present case. Even if Serb property was looted
                 and destroyed, it has in any event not been established that this was
                 aimed at bringing about the physical destruction of the Serb population
                 of the Krajina.
                     Conclusion as to the existence of the actus reus of genocide
                    499. In light of the above, the Court is fully convinced that, during and
                 after Operation Storm, Croatian armed forces and police perpetrated acts
                 against the Serb population falling within subparagraphs (a) and (b) of
                 Article II of the Genocide Convention, and that these acts constituted the
                 actus reus of genocide.
                    The Court must accordingly now determine whether the existence of
                 the specific intent (dolus specialis) which characterizes genocide has been
                 established in the present case.

                 (2) The genocidal intent (dolus specialis)
                    500. Serbia contends that the acts perpetrated by Croatia against the
                 Serb population of the Krajina and allegedly falling within subpara-
                 graphs (a), (b) and (c) of Article II of the Genocide Convention were
                 committed with the intent of destroying the Krajina Serbs, a substantial
                 part of the national and ethnical group of the Serbs in Croatia.
                    According to Serbia, the existence of that genocidal intent can be
                 inferred, first, from the actual language of the transcript of the meeting
                 held at Brioni on 31 July 1995, and secondly, and in any event, from the
                 pattern of conduct that is apparent from the totality of the actions decided
                 upon and implemented by the Croatian authorities during and immedi-
                 ately after Operation Storm — a pattern of conduct such that it can only
                 denote the existence of genocidal intent.
                     (a) The Brioni Transcript
                   501. On 31 July 1995 a meeting of Croatia’s top military leaders was
                 held on the island of Brioni under the chairmanship of the President of
                 the Republic of Croatia, Franjo Tudjman, in order to prepare Operation
                 Storm, which was indeed launched a few days later.

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                   The full transcript of the discussions at that meeting, which were
                 recorded, was produced before the ICTY during the Gotovina proceed-
                 ings, then produced by Serbia before the Court for purposes of the pres-
                 ent case. With a few isolated exceptions, the actual words of the
                 participants are reproduced in that transcript.

                     502. According to Serbia, several passages from the transcript demon-
                  strate the intention of the Croatian authorities, at the highest level,
                 physically to eliminate the Krajina Serbs.
                     Serbia relies on the following passages.
                     At the start of the meeting President Tudjman is quoted as follows :
                         “Therefore, we should leave the east totally alone, and resolve the
                       question of the south and north.
                         In which way do we resolve it ? This is the subject of our discussion
                       today. We have to inflict such blows that the Serbs will to all practi-
                       cal purposes disappear, that is to say, the areas we do not take at once
                       must capitulate within a few days.”
                   Later on in the discussion the Croatian President further stated : “And,
                 particularly, gentlemen, please remember how many Croatian villages
                 and town have been destroyed, but that’s still not the situation in Knin
                 today . . .”
                   At a later point, he continued :
                         “But I said, and we’ve said it here, that they should be given a way
                       out here . . . Because it is important that those civilians set out, and
                       then the army will follow them, and when the columns set out, they
                       will have a psychological impact on each other.”
                     To which General Gotovina replied :
                          “A large number of civilians are already evacuating Knin and head-
                       ing towards Banja Luka and Belgrade. That means that if we continue
                       this pressure, probably for some time to come, there won’t be so many
                       civilians just those who have to stay, who have no possibility of leav-
                       ing.”
                   A little later, the President’s son, Miroslav Tudjman, stated : “[I]t is
                 realistic to expect that when this is cleared and their forces [Serb armed
                 forces] pulled out [from the Krajina] then they can prepare after ten days.
                 In that time we will clear the entire area.”

                    Finally, President Tudjman said : “[I]f we had enough [ammunition],
                 then I too would be in favour of destroying everything by shelling prior
                 to advancing.”
                    503. Croatia disputes Serbia’s interpretation of the Brioni Transcript.
                 According to the Applicant, the Brioni discussions related exclusively to
                 military and strategic issues : it was a matter of planning Operation Storm
                 in the most effective way, rather than settling the fate of the Serb popula-

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                 tion living in Krajina. Only a biased reading of certain passages taken out
                 of context could suggest — wrongly in Croatia’s view — the existence of
                 a plan aimed at destroying the civilian population. Croatia further con-
                 tends that this was the conclusion of both the ICTY Trial Chamber and
                 the Appeals Chamber in the Gotovina case in regard to the meaning and
                 scope of the Brioni Transcript.
                    504. The Court is not persuaded by the arguments that Serbia seeks to
                 derive from the Brioni Transcript.
                    In the Court’s view, the passages quoted above, which are taken from
                 the transcript of a meeting which lasted almost two hours, are far from
                 demonstrating an intention on the part of the Croatian leaders physically
                 to destroy the group of Croatian Serbs, or the substantial part of that
                 group constituted by the Serbs living in Krajina.
                    President Tudjman’s reference — on which Serbia places so much
                 emphasis — to the aim of the Croatian forces being “to inflict such blows
                 that the Serbs will to all practical purposes disappear” must be read in
                 context, and specifically in light of what immediately follows : “that is to
                 say, the areas we do not take at once must capitulate within a few days”.
                 Taken as a whole, that sentence is clearly more indicative of the designa-
                 tion of a military objective, rather than of the intention to secure the
                 physical destruction of a human group.
                    The fact that the President subsequently asked the meeting to “remem-
                 ber how many Croatian villages and towns [had] been destroyed”, while
                 pointing out that this was “still not the situation in Knin”, does not
                 establish an intent on his part to destroy the Serb population of the Kra-
                 jina.
                    Similarly, the concern expressed by the Croatian Head of State that the
                 Serb civilians should be left with accessible escape routes, “[b]ecause it is
                 important that those civilians set out, and then the army will follow
                 them”, in no way suggests any intent to destroy the Serb group as such,
                 but is better understood as an aspect of military strategy. And it is clari-
                 fied in particular by the final part of the same sentence : “and when the
                 columns [of civilians and soldiers] set out, they will have a psychological
                 impact on each other”.
                    The same applies to General Gotovina’s reply, where he foresees that
                 there would not be many Serb civilians left in the area once the Croatian
                 military offensive has begun, except for “those who have to stay, who
                 have no possibility of leaving”. Although not directly linked to any stra-
                 tegic considerations, that remark in no way suggests an intention physi-
                 cally to eliminate the Serb population.
                    Furthermore, the remark by Miroslav Tudjman (“When . . . their forces
                 [have] pulled out, then they can prepare after ten days. In that time we
                 will clear the entire area”), while containing a certain ambiguity, which
                 the context cannot dispel, does not represent sufficiently persuasive evi-
                 dence of a genocidal intent.
                    Finally, President Tudjman’s statement that he would be “in favour of
                 destroying everything by shelling prior to advancing” — if the Croat

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                            application of genocide convention (judgment)                  149

                 forces “had enough” ammunition — was made in the context of a discus-
                 sion on the need to use the military resources available to those forces
                 with restraint. It cannot be interpreted as reflecting an intent on the Pres-
                 ident’s part to destroy the Krajina Serbs as such.

                   505. At most, the view might be taken that the Brioni Transcript shows
                 that the leaders of Croatia envisaged that the military offensive they were
                 preparing would have the effect of causing the flight of the great majority of
                 the Serb population of the Krajina, that they were satisfied with that conse-
                 quence and that, in any case, they would do nothing to prevent it because,
                 on the contrary, they wished to encourage the departure of the Serb civilians.
                   However, even that interpretation, assuming it to be correct, would be
                 far from providing a sufficient basis for the Court to make a finding of the
                 existence of the specific intent which characterizes genocide.
                   506. The Court further notes that this conclusion is confirmed by the
                 way the Brioni Transcript was dealt with by the ICTY Trial and Appeals
                 Chambers in their decisions in the Gotovina case.

                     The Trial Chamber found that certain items in the transcript consti-
                  tuted evidence, together with other elements, of the existence of a
                  concerted plan by the Croatian leaders to expel the Serb civilian popula-
                  tion of the Krajina (the “joint criminal enterprise”). However, the Cham-
                  ber found no evidence of an intention physically to destroy the group
                  of the Krajina Serbs. In particular, with regard to the first remark of
                 President Tudjman quoted above (“We have to inflict such blows that
                  the Serbs will to all practical purposes disappear”), the Trial Chamber
                  found that “when read in its context this particular statement focuses
                  mainly on the Serb military forces, rather than the Serb civilian popula-
                  tion” (Gotovina Trial Judgment, para. 1990).
                     As for the Appeals Chamber, it did not go nearly as far as the Trial
                 Chamber, expressing itself as follows :
                        “[O]utside th[e] context [of unlawful attacks], it was not reasonable
                     to find that the only possible interpretation of the Brioni Transcript
                     involved a [joint criminal enterprise] to forcibly deport Serb civilians.
                     Portions of the Brioni Transcript deemed incriminating by the Trial
                     Chamber can be interpreted, absent the context of unlawful artillery
                     attacks, as inconclusive with respect to the existence of a [joint crim-
                     inal enterprise], reflecting, for example, a lawful consensus on helping
                     civilians temporarily depart from an area of conflict for reasons
                     including legitimate military advantage and casualty reduction. Thus
                     discussion of pretexts for artillery attacks, of potential civilian depar-
                     tures, and of provision of exit corridors could be reasonably inter-
                     preted as referring to lawful combat operations and public relations
                     efforts. Other parts of the Brioni Transcript, such as Gotovina’s claim
                     that his troops could destroy the town of Knin, could be reasonably
                     construed as using shorthand to describe the military forces stationed

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                       in an area, or intending to demonstrate potential military power in
                       the context of planning a military operation.” (Gotovina Appeals
                       Judgment, para. 93.)

                    507. In conclusion, the Court considers that, even taken together and
                 interpreted in light of the contemporaneous overall political and military
                 context, the passages from the Brioni Transcript quoted by Serbia, like
                 the rest of the document, do not establish the existence of the specific
                 intent (dolus specialis) which characterizes genocide.
                     (b) Existence of a pattern of conduct indicating genocidal intent
                    508. Serbia contends that, even if the Court were to find that the Brioni
                 Transcript does not constitute evidence of Croatia’s genocidal intent, and
                 even if none of the acts alleged by the Respondent is in itself evidence of
                 the existence of such intent, the acts and statements of the Croatian
                 authorities taken as a whole, before, during and immediately after Opera-
                 tion Storm manifest a consistent pattern of conduct which can only show
                 that those authorities were animated by a desire to destroy, in whole or in
                 part, the group of Serbs living in Croatia. This is said to emerge, in parti-
                 cular, from the series of military operations conducted by Croatia from
                 1992 to 1995, during which Croatian forces allegedly committed war
                 crimes and serious human rights violations against Serbs in Croatia.
                 According to Serbia, this period was characterized by a policy of systema-
                 tic discrimination against the Serbs, culminating in Operation Storm,
                 which marked the point at which the campaign turned into one aimed at
                 the actual destruction of the group.

                    509. Croatia vigorously disputes that assertion. It maintains that the
                 purpose of all the acts and statements of the Croatian authorities cited by
                 Serbia was strictly confined to regaining possession of areas under Serb
                 control. It had first sought to achieve that aim by peaceful means, but
                 eventually had no other choice but recourse to force. It considers that the
                 evidence presented by Serbia is far from establishing a pattern of conduct
                 such that it can only show an intention to destroy the protected group, in
                 whole or in part.
                    510. In this regard, the Court recalls two findings from its Judgment ren-
                 dered in the Bosnia and Herzegovina v. Serbia and Montenegro case (2007
                 Judgment), which it has already referred to earlier in the present Judgment,
                 and which must now be regarded as solidly rooted in its jurisprudence.
                    First, what is generally called “ethnic cleansing” does not in itself con-
                 stitute a form of genocide. Genocide presupposes the intent physically to
                 destroy, in whole or in part, a human group as such, and not merely a
                 desire to expel it from a specific territory. Acts of “ethnic cleansing” can

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                 indeed be elements in the implementation of a genocidal plan, but on
                 condition that there exists an intention physically to destroy the targeted
                 group and not merely to secure its forced displacement (Application of the
                 Convention on the Prevention and Punishment of the Crime of Genocide
                 (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment,
                 I.C.J. Reports 2007 (I), p. 122, para. 190).
                   Secondly, for a pattern of conduct, that is to say, a consistent series of
                 acts carried out over a specific period of time, to be accepted as evidence
                 of genocidal intent, it would have to be such that it could only point to
                 the existence of such intent, that is to say, that it can only reasonably be
                 understood as reflecting that intent (see paragraphs 145‑148 above).

                    511. In light of the two preceding propositions, Serbia’s “pattern of
                 conduct” argument cannot succeed. The Court cannot see in the pattern
                 of conduct on the part of the Croatian authorities immediately before,
                 during and after Operation Storm a series of acts which could only rea-
                 sonably be understood as reflecting the intention, on the part of those
                 authorities, physically to destroy, in whole or in part, the group of Serbs
                 living in Croatia.

                    512. As has already been stated above, not all of the acts alleged by
                 Serbia as constituting the physical element of genocide have been factu-
                 ally proved. Those which have been proved — in particular the killing of
                 civilians and the ill‑treatment of defenceless individuals — were not com-
                 mitted on a scale such that they could only point to the existence of a
                 genocidal intent.
                    513. It is true that Serbia also cited, in its argument on Croatia’s “pat-
                 tern of conduct”, the administrative measures imposed to prevent the
                 Krajina Serbs from returning home. According to Serbia, these confirm
                 the conclusion — which it asks the Court to draw — that the real target
                 of Operation Storm was the Serb population.

                    514. In the Court’s view, even if Serbia’s allegations in regard to the
                 refusal to allow the Serb refugees to return home — allegations disputed
                 by Croatia — were true, that would still not prove the existence of the
                 dolus specialis : genocide presupposes the intent to destroy a group as
                 such, and not to inflict damage upon it or to remove it from a territory,
                 irrespective of how such actions might be characterized in law.

                     Conclusion regarding the existence of the dolus specialis, and general
                     conclusion on the commission of genocide
                    515. The Court concludes from the foregoing that the existence of the
                 dolus specialis has not been established.
                    Accordingly, the Court finds that it has not been proved that genocide
                 was committed during and after Operation Storm against the Serb popu-
                 lation of Croatia.

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                        B. Discussion of the other Submissions in the Counter‑Claim

                 (1) Alternative submissions
                    516. In the alternative, in the event that the Court does not uphold the
                 principal submissions asking it to find that Croatia is internationally
                 responsible for acts of genocide attributable to it, Serbia requests the
                 Court to find that Croatia has violated its obligations under subpara-
                 graphs (b), (c), (d) and (e) of Article III of the Genocide Convention,
                 namely its obligations not to commit acts constituting : “(b) Conspiracy
                 to commit genocide ; (c) Direct and public incitement to commit geno-
                 cide ; (d) Attempt to commit genocide ; and (e) Complicity in genocide”.

                    517. Since the Court has not found any acts capable of being character-
                 ized as genocide in connection with the events during and after Operation
                 Storm, it is bound to conclude that Croatia did not breach its obligations
                 under subparagraph (e) of Article III. Moreover, in the absence of the
                 necessary specific intent which characterizes genocide, Croatia cannot be
                 considered to have engaged in “conspiracy to commit genocide” or “direct
                 and public incitement to commit genocide”, or in an attempt to commit
                 genocide, all of which presuppose the existence of such an intent.
                    It follows that the alternative submissions must be rejected.

                 (2) Subsidiary submissions
                    518. On a subsidiary basis, irrespective of whether the Court upholds
                 its principal and alternative submissions, Serbia requests the Court to
                 find that Croatia has violated its obligation to punish acts of genocide
                 committed against the Serb ethnical and national group living in Croatia,
                 an obligation incumbent upon it under Article VI of the Genocide Con-
                 vention, which provides :
                        “Persons charged with genocide or any of the other acts enumer-
                     ated in Article III shall be tried by a competent tribunal of the State
                     in the territory of which the act was committed, or by such interna-
                     tional penal tribunal as may have jurisdiction with respect to those
                     Contracting Parties which shall have accepted its jurisdiction.”
                    519. Since Serbia has failed to prove the existence of an act of geno-
                 cide, or of any of the other acts mentioned in Article III of the Conven-
                 tion, committed against the Serb population living in Croatia, its
                 subsidiary submissions must also necessarily be rejected.

                 (3) Submissions requesting the cessation of the internationally wrongful
                      acts attributable to Croatia and reparation in respect of their injurious
                      consequences
                    520. Serbia asks the Court to order Croatia immediately to take effec-
                 tive steps to comply with its obligation to punish the authors of the acts

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                             application of genocide convention (judgment)                 153

                 of genocide committed on its territory during and after Operation Storm,
                 and to take various measures to make good the damage and loss caused
                 by its violations of the Genocide Convention, in particular by compensat-
                 ing the victims.
                   521. Since the present Judgment has found that no internationally
                 wrongful act in relation to the Genocide Convention has been committed
                 by Croatia, these submissions must also be rejected.

                                   General Conclusion on the Counter‑Claim
                    522. For all of the foregoing reasons, the Court finds that the counter‑
                 claim must be dismissed in its entirety.

                                                        *
                                                    *       *

                    523. The Court has already referred to the issue of missing persons (see
                 paragraphs 357‑359 above), in the context of its examination of the prin-
                 cipal claim. It notes that individuals also disappeared during Operation
                 Storm and its immediate aftermath. It can only reiterate its request to
                 both Parties to continue their co‑operation with a view to settling as soon
                 as possible the issue of the fate of missing persons.

                    The Court recalls, furthermore, that its jurisdiction in this case is based
                 on Article IX of the Genocide Convention, and that it can therefore only
                 rule within the limits imposed by that instrument. Its findings are there-
                 fore without prejudice to any question regarding the Parties’ possible
                 responsibility in respect of any violation of international obligations other
                 than those arising under the Convention itself. In so far as such violations
                 may have taken place, the Parties remain liable for their consequences.
                 The Court encourages the Parties to continue their co‑operation with a
                 view to offering appropriate reparation to the victims of such violations,
                 thus consolidating peace and stability in the region.

                                                        *
                                                    *       *

                                           VII. Operative Clause

                     524. For these reasons,
                     The Court,
                     (1) By eleven votes to six,
                   Rejects the second jurisdictional objection raised by Serbia and finds
                 that its jurisdiction to entertain Croatia’s claim extends to acts prior to
                 27 April 1992 ;

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                     in favour : Vice‑President Sepúlveda‑Amor ; Judges Abraham, Keith, Ben-
                        nouna, Cançado Trindade, Yusuf, Greenwood, Donoghue, Gaja, Bhan-
                        dari ; Judge ad hoc Vukas ;
                     against : President Tomka ; Judges Owada, Skotnikov, Xue, Sebutinde ;
                        Judge ad hoc Kreća ;
                     (2) By fifteen votes to two,
                     Rejects Croatia’s claim ;
                     in favour : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges
                       Owada, Abraham, Keith, Bennouna, Skotnikov, Yusuf, Greenwood, Xue,
                       Donoghue, Gaja, Sebutinde, Bhandari ; Judge ad hoc Kreća ;

                     against : Judge Cançado Trindade ; Judge ad hoc Vukas ;
                     (3) Unanimously,
                     Rejects Serbia’s counter‑claim.

                   Done in French and in English, the French text being authoritative, at
                 the Peace Palace, The Hague, this third day of February, two thousand
                 and fifteen, in three copies, one of which will be placed in the archives of
                 the Court and the others transmitted to the Government of the Republic
                 of Croatia and the Government of the Republic of Serbia, respectively.

                                                                 (Signed) Peter Tomka,
                                                                           President.
                                                             (Signed) Philippe Couvreur,
                                                                            Registrar.

                   President Tomka appends a separate opinion to the Judgment of the
                 Court ; Judges Owada, Keith and Skotnikov append separate opinions
                 to the Judgment of the Court ; Judge Cançado Trindade appends a dis-
                 senting opinion to the Judgment of the Court ; Judges Xue and Dono-
                 ghue append declarations to the Judgment of the Court ; Judges Gaja,
                 Sebutinde and Bhandari append separate opinions to the Judgment of
                 the Court ; Judge ad hoc Vukas appends a dissenting opinion to the Judg-
                 ment of the Court ; Judge ad hoc Kreća appends a separate opinion to the
                 Judgment of the Court.

                                                                          (Initialled) P.T.
                                                                        (Initialled) Ph.C.

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