                     409

                                 SEPARATE OPINION OF JUDGE BHANDARI

                                                      Introduction

                        1. I have voted with the majority on all three operative clauses of the
                     present Judgment. However, with respect to the second operative clause,
                     i.e., the rejection of Croatia’s principal claim, I wish to qualify and expand
                     upon the rationales for my vote. In so doing, I shall take the present
                     opportunity to expound upon certain reservations I continue to harbour
                     regarding the analysis employed at various points throughout that por-
                     tion of the Judgment with respect to issues which, in my respectful view,
                     have received inadequate — or even incorrect — attention.
                        2. At the outset, I wish to underscore that the principal reason for my
                     rejection of Croatia’s claim is that the Applicant has failed, in my consid-
                     ered opinion and after having carefully scrutinized the entire evidentiary
                     record in these proceedings, to satisfy the minimum standard of credible
                     evidence required by this Court in its prior jurisprudence (in particular
                     the Bosnia Judgment of 2007 1, which dealt with claims of a highly similar
                     nature) in relation to the dolus specialis of genocide. In this regard, I take
                     specific note of Croatia’s near complete inability to substantiate most of
                     the figures it has averred in terms of number of victims as a consequence
                     of the hostilities that occurred in the regions and during the period at
                     issue. Moreover, I recall that it is a well‑settled principle of law that the
                     graver the offence alleged, the higher the standard of proof required for
                     said offence to be established in a court of law. Consequently, I am not
                     “fully convinced” (Judgment, para. 178) that the only inference available
                     from the evidence on record is that attacks against ethnic Croats on the
                     territory of Croatia between 1991 and 1995 were perpetrated with the req-
                     uisite genocidal intent. Thus, although I concur with the majority that the
                     actus reus of genocide has been conclusively satisfied with respect to many
                     of the localities averred by Croatia, the Applicant’s inability to prove that
                     the mens rea of genocide — which, by its very nature, constitutes a charge
                     “of exceptional gravity” (ibid.) — has been “clearly established” (ibid.)
                     is necessarily fatal to Croatia’s entire cause of action.

                        1 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. 43 (hereafter the “Bosnia Judgment”).

                     410

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                     410 	 application of genocide convention (sep. op. bhandari)

                         3. Indeed, during the oral hearings phase of these proceedings, in response
                     to a question posed by another Member of the Court, Croatia was com-
                     pelled to concede that many of its written witness statements would have
                     been inadmissible in a domestic Croatian court of law, to which Serbia
                     responded that such statements would have been likewise inadmissible in the
                     domestic courts of the former Yugoslavia (Judgment, para. 195). Moreover,
                     in response to a question that I posed to the Parties, Croatia maintained
                     that the Court enjoyed a free hand in determining what weight should be
                     given to them, based on established Court jurisprudence pertaining to
                     out‑of‑court documents (ibid., para. 194). The sum total of these exchanges
                     is that it stands to reason that a party to proceedings before the Court can-
                     not expect to have documents that would be inadmissible before the courts
                     of its own country, and which bear marked deficiencies when assessed using
                     the standards applied in this forum, admitted for proof of their contents ;
                     especially where the matter to be proved is as grave as the crime of genocide.
                         4. In reaching this conclusion, I share the majority’s sensitivity to “the
                     difficulties of obtaining evidence in the circumstances of th[is] case” (ibid.,
                     para. 198), wherein proof had to be gleaned from a postbellum context
                     where the juridical infrastructure and other cornerstones of government
                     and civil society typically relied upon by litigants appearing before this
                     Court have been rendered largely absent or at least severely compromised
                     by years of brutal war, massive displacements of populations and other
                     seismic socio‑political upheavals. Indeed, so Herculean are these obsta-
                     cles that I must confess to having harboured a fleeting temptation to relax
                     my approach to the methods of proof obtaining before the instant pro-
                     ceedings, specifically with respect to the documentary evidence adduced
                     by Croatia, much of which admittedly lacks the indicia of reliability nor-
                     mally demanded of documents presented before a judicial body. How-
                     ever, the allure of adopting an elastic approach to Croatia’s documents
                     was, to my mind, definitively quelled by the countervailing consideration
                     that the crime of genocide, being “an odious scourge” 2 that is “condemned
                       by the civilized world” 3, carries with it such grievous moral opprobrium
                     that a judicial finding as to its existence can only be countenanced upon
                     the most credible and probative evidence. Consequently, despite the
                     sympathy I have expressed herein regarding the extraordinary evidentiary
                      hurdles faced by the Parties to these proceedings, I ultimately share the
                      majority’s finding “that many of the statements produced by Croatia are
                      deficient” (ibid., para. 198), that these deficiencies are irremediable, and
                     that the remainder of the Applicant’s evidence has failed to conclusively
                     demonstrate the only conclusion to be drawn from the evidence it has
                      proffered is that there existed genocidal intent against the targeted group
                     in question during the time period averred.

                       2 Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide

                     Convention”), Preamble.
                       3 Ibid.

                     411

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                     411 	 application of genocide convention (sep. op. bhandari)

                        5. This premise having been established, I take note of the fact that in
                     spite of the serious evidentiary deficiencies in Croatia’s case, the majority
                     has elected to assess whether the claims of the Applicant, taken at their
                     highest, could nevertheless evince genocidal intent 4. Following this lead,
                     and notwithstanding my conclusion that Croatia’s charges of genocide
                     have failed on evidentiary grounds, I intend to profit from the present
                     opportunity in making certain observations and critiques to the analysis
                     adopted by the majority on the issue of dolus specialis, assuming, argu‑
                     endo (as the majority has done), that Croatia’s case may be taken at its
                     highest.
                        6. In brief, it is my respectful view that the Court should have used the
                     present Judgment to lay down clearer guidelines on three principal issues.
                     First, I believe the Court could have provided a better and clearer treat-
                     ment as to what constitutes genocidal intent. Second, given the prolifera-
                     tion of international criminal tribunals over the past two decades and the
                     consequent exponential expansion of jurisprudence emanating from these
                     juridical bodies, I believe the majority has been derelict in not more fully
                     canvassing the available authorities to provide clear parameters to distin-
                     guish between genocide and the oft closely intertwined offences of extermi-
                     nation and/or persecution as a crime against humanity. Third and finally,
                     I believe that the 17 factors advanced by Croatia in support of its conten-
                     tion that genocide occurred deserved a more comprehensive response than
                     the majority’s approach of selecting, without any apparent reasoned expla-
                     nation, five factors deemed “most important” to Croatia’s claim of geno-
                     cidal intent (Judgment, para. 413). I believe that a superior treatment of

                       4   See Judgment, para. 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 victims, in order to determine whether
                           the JNA and Serb forces availed themselves of opportunities to destroy that part of the
                           group. In this connection, 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.” (Emphasis added.)
                       See also, ibid., para. 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.”
                       See also, ibid., para. 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 objectives ; it was also directed at the then predominantly Croat civilian
                           population (many Serbs having fled the city before or after the fighting broke out).”
                           (Emphasis added.)

                     412

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                     412 	 application of genocide convention (sep. op. bhandari)

                     these topics would have been commensurate with the Court’s function as
                     not only the principal judicial organ of the United Nations but as a “World
                     Court” from which other international and domestic courts and tribunals
                     seek guidance as a legal authority of the highest order.

                              Genocidal Intent and the “Substantiality” Criterion

                        7. For ease of reference, I reproduce the relevant sections of the Geno-
                     cide Convention in which the substantive provisions of the crime of geno-
                     cide are enshrined :
                             “Article 1 : The Contracting Parties confirm that genocide, whether
                           committed in time of peace or in time of war, is a crime under inter-
                           national law which they undertake to prevent and to punish.
                             Article 2 : In the present Convention, genocide means any of the
                           following 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.”
                        As the foregoing text illustrates, the chapeau of Article II of the Geno-
                     cide Convention defines genocide as “any of the following acts committed
                     with intent to destroy, in whole or in part, a national, ethnical, racial or
                     religious group, as such” (emphasis added). The fact that the Convention
                     expressly envisages situations where a group may be targeted for destruc-
                     tion “in part” naturally gives rise to the thorny question of when exactly
                     the targeted “part” meets the threshold for genocidal intent. Because the
                     Convention is silent on this point, in the Bosnia Judgment the Court
                     relied upon the jurisprudence of the International Criminal Tribunal for
                     the former Yugoslavia (ICTY) and the International Criminal Tribunal
                     for Rwanda (ICTR), as well as International Law Commission (ILC)
                     Commentary, to conclude that “part” of the “group” for the purpose of
                     Article II requires an intent “to destroy at least a substantial part of the
                     particular group” 5.

                       5   Bosnia Judgment, p. 126, para. 198 ; emphasis added.

                     413

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                     413 	 application of genocide convention (sep. op. bhandari)

                        8. While the “substantiality” criterion enunciated in the Bosnia Judg-
                     ment has been reaffirmed in the instant Judgment (in somewhat modified
                     form, a subject to which I intend to return in short order), this has been
                     done rather tersely and in a way that, in my view, fails to lay down clear
                     parameters that would provide guidance to future adjudicative bodies
                     grappling with this concept. The majority, has also, I fear, neglected to so
                     much as consider possibly relevant jurisprudential developments emanat-
                     ing from the ad hoc international criminal tribunals in the intervening
                     eight years since the issuance of the Bosnia Judgment. Therefore, in the
                     hopes of elucidating this standard for the sake of posterity, I intend to
                     revisit the Bosnia formula to see how that test has been applied in practice
                     by other tribunals in recent years, so as to juxtapose such developments
                     with how the majority has employed said formula in the instant Judg-
                     ment.

                                            The Legal Test Enunciated
                                      in the Court’s Bosnia Judgment of 2007

                       9. As has been correctly observed in the present Judgment, in the Bosnia
                     Judgment of 2007, the Court “considered certain issues similar to those
                     before it in the present case” (Judgment, para. 125). On that occasion, the
                     Court expounded the relevant test for determining what constitutes a “part”
                     of the targeted group for the purpose of analysing genocidal intent as fol-
                     lows :
                              “[T]he Court refers to three matters relevant to the determination of
                           ‘part’ of the ‘group’ for the purposes of Article II [of the Genocide
                           Convention]. In the first place, the intent must be to destroy at least
                           a substantial part of the particular group. That is demanded by the
                           very nature of the crime of genocide : since the object and purpose of
                           the Convention as a whole is to prevent the intentional destruction of
                           groups, the part targeted must be significant enough to have an impact
                           on the group as a whole. That requirement of substantiality is sup‑
                           ported by consistent rulings of the ICTY and the International Criminal
                           Tribunal for Rwanda (ICTR) and by the Commentary of the ILC to
                           its Articles in the draft Code of Crimes against the Peace and Security
                           of Mankind.
                              Second, the Court observes that it is widely accepted that genocide
                           may be found to have been committed where the intent is to destroy
                           the group within a geographically limited area . . . As the ICTY
                           Appeals Chamber has said . . . the opportunity available to the perpe-
                           trators is significant. This criterion of opportunity must however be
                           weighed against the first and essential factor of substantiality. It may

                     414

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                     414 	 application of genocide convention (sep. op. bhandari)

                           be that the opportunity available to the alleged perpetrator is so lim-
                           ited that the substantiality criterion is not met. The Court observes
                           that the ICTY Trial Chamber has indicated the need for caution, lest
                           this approach might distort the definition of genocide [. . .]

                             A third suggested criterion is qualitative rather than quantitative.
                           The Appeals Chamber in the Krstić case [noted that]
                                  ‘. . . In addition to the numeric size of the targeted portion, its
                              prominence within the group can be a useful consideration. If 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 . . .’
                              Establishing the ‘group’ requirement will not always depend on the
                           substantiality requirement alone although it is an essential starting-point.
                           It follows in the Court’s opinion that the qualitative approach cannot
                           stand alone. The Appeals Chamber in Krstić also expresses that
                           view.” 6
                        The Court concluded its remarks by noting that “[t]he above list of
                     criteria is not exhaustive, but, as just indicated, the substantiality criterion
                     is critical. They are essentially those stated by the Appeals Chamber in
                     the Krstić case, although the Court does give this first criterion priority.” 7
                     Thus, in the Bosnia case the Court fastened a tripartite formula, which it
                     indicated was open to future expansion and elaboration, for determining
                     whether a “part” of a group has been targeted with genocidal intent ;
                     according to which the criterion of “substantiality” was pre‑eminent in
                     that calculus.

                        10. While the Bosnia formula did not draw any bright lines around the
                     contours of what constitutes genocidal intent toward “a part” of the tar-
                     geted group, it would appear plain from that Judgment and the jurispru-
                     dence of the international criminal tribunals that a “substantial” part of
                     the targeted group need not constitute the majority thereof, and that there
                     is no numeric threshold for discerning a substantial part of the group.

                              The Legal Test Enunciated in the Present Judgment

                       11. The pertinent analysis of the law on genocidal intent vis‑à‑vis “a
                     part” of the targeted group is presented in the present Judgment as follows :
                             “The Court recalls that the destruction of the group ‘in part’ within
                           the meaning of Article II of the Convention must be assessed by refer‑

                       6 Bosnia Judgment, pp. 126‑127, paras. 198‑200 (internal citations omitted ; emphasis

                     added).
                       7 Ibid., p. 127, para. 201 ; emphasis added.

                     415

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                     415 	 application of genocide convention (sep. op. bhandari)

                           ence 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’ [. . .], and that this is a ‘critical’ criterion. The Court further
                           noted that ‘it is widely accepted that genocide may be found to have
                           been committed where the intent is to destroy the group within a
                           geographically limited area’ and that, accordingly, ‘[t]he area of the
                           perpetrator’s activity and control are to be considered [. . .]’. 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 . . .’.
                              In 2007, the Court held that these factors would have to be assessed
                           in any particular case. [. . .] 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 quantitative
                           element as well as evidence regarding the geographic location and
                           prominence of the allegedly targeted part of the group.” (Judgment,
                           para. 142 (internal citations omitted ; emphasis added).)
                        What I find immediately striking from this slightly rebranded iteration
                     of the tripartite test promulgated by the Court in the Bosnia Judgment is
                     that, one fleeting reference to the “critical” nature of the “substantiality”
                     criterion (now renamed “the quantitative element”) notwithstanding, the
                     rigidly hierarchical structure of the Bosnia test, whereby the numerosity
                     of the targeted population was clearly superordinate to the other, supple-
                     mentary criteria of “opportunity” (now dubbed “the geographic loca-
                     tion”) and the “qualitative factor” (now dubbed the “prominence” of the
                     targeted group) has been jettisoned in favour of a more equal balancing
                     effort. My distinct impression that the stratification inherent in the Bosnia
                     formula has been mollified by the present Judgment (a jurisprudential
                     evolution I applaud) draws further support from the consistently flexible
                     and egalitarian manner in which the Court has applied these three factors
                     to the facts at bar, wherein I cannot discern any noticeable supremacy
                     afforded the quantitative element (see, generally, Judgment, para-
                     graphs 413‑441).

                       12. As I shall undertake to demonstrate at a later juncture in this opin-
                     ion, I believe that this adapted substantiality test has practical conse-
                     quences for the manner in which the majority has applied the assessment
                     of genocidal intent in the present Judgment, specifically with respect to
                     the events occurring in the city of Vukovar and its environs.

                     416

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                     416 	 application of genocide convention (sep. op. bhandari)

                                              Post-Bosnia Jurisprudence
                                               of the ICTY and ICTR

                        13. As noted above, in the present Judgment the Court has recalled
                     and reaffirmed the tripartite formula for genocidal intent enunciated in
                     Bosnia as the approach to be followed in the present case, though not
                     without a significant restructuring of the normative order of the test to be
                     employed. This is naturally consonant with the principle that while no
                     prior judgment of this Court constitutes binding precedent sensu stricto 8,
                     “[i]n general the Court does not choose to depart from previous findings,
                     particularly when similar issues were dealt with in the earlier decisions . . .
                     unless it finds very particular reasons to do so” (Judgment, para. 125). As
                     I have noted above, in Bosnia the Court explicitly acknowledged the con-
                     tributions of the ICTY and ICTR in shaping the test that it adopted to
                     assess genocidal intent vis‑à‑vis a “part” of a targeted group 9. Conse-
                     quently — and bearing in mind the nearly eight years that have passed
                     since the promulgation of this Court’s Bosnia formula — it would seem to
                     me only natural and appropriate to examine whether the jurisprudence of
                     those tribunals in the intervening years reveals any evolution in how the
                     “substantiality” component of genocidal dolus specialis has been applied
                     in recent litigious contexts. Such an endeavour is not only consonant with
                     the Bosnia Judgment’s pronouncement that the criteria enunciated therein
                     were “not exhaustive” 10 and therefore presumably subject to future eluci-
                     dation, but is also faithful to the present Judgment’s self‑admonition that
                     the Court will “take account, where appropriate, of the decisions of inter-
                     national 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” (ibid., para. 129). In a similar vein, I recall the draft Judg-
                     ment’s avowal that while it will rely on the Bosnia Judgment “to the
                     extent necessary for its legal reasoning[, t]his will not . . . preclude it,
                     where necessary, from elaborating upon this jurisprudence” (ibid.,
                     para. 125).

                        14. In my respectful view, because the legal standard for genocidal
                     intent has a necessarily vague and dynamic character, it was incumbent
                     upon the Court to fully canvass recent developments in the law to deter-
                     mine how the Bosnia formula (as restated in the present Judgment) has
                     been applied in other juridical institutions tasked with applying that test.

                        8 ICJ Statute, Article 59 : “The decision of the Court has no binding force except

                     between the parties and in respect of that particular case.”
                        9 Bosnia Judgment, p. 126, para. 198.
                        10 Ibid., p. 127, para. 201.

                     417

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                     417 	 application of genocide convention (sep. op. bhandari)

                     I regret to say that in my estimation the present Judgment has neither
                     fully nor properly canvassed the current jurisprudential standard of geno-
                     cidal intent emanating from the ICTY and the ICTR. For this reason, I
                     shall now conduct a survey of recent trends in the case law of those tribu-
                     nals on this subject in an attempt to glean insights as to the present state
                     of the law in this area. As I shall expound hereunder, I take the position
                     that these recent jurisprudential trends would tend to suggest that a pat-
                     tern of killings such as has been averred in relation to the events that
                     occurred in Croatia between 1991 and 1995 11, and in particular with
                     respect to the region of Eastern Slavonia and the greater Vukovar area,
                     may be more indicative of genocidal intent than the majority has acknowl-
                     edged.

                                                  The Tolimir ICTY Trial
                                                    Chamber Judgment

                        15. On 12 December 2012, the Trial Chamber of the ICTY issued its
                     judgment in the case of Tolimir (currently under appeal), in which it pro-
                     vided a comprehensive treatment of the substantiality criterion of geno-
                     cidal intent. The Trial Chamber recalled that
                           “[t]he term ‘in whole or in part’, relates to the requirement that the
                           perpetrator intended to destroy at least a substantial part of a pro-
                           tected group. While there is no numeric threshold of victims required,
                           the targeted portion must comprise ‘a significant enough [portion] to
                           have an impact on the group as a whole’. Although the numerosity of
                           the targeted portion in absolute terms is relevant to substantiality, this
                           is not dispositive ; other relevant factors include the numerosity of the
                           targeted portion in relation to the group as a whole, the prominence
                           of the targeted portion and whether the targeted portion of the group
                           is emblematic of the overall group, or is essential to its survival, as
                           well as the area of the perpetrators’ activity, control and reach.” 12

                     These observations made repeated reference to the same section of the
                     analysis contained in the Krstić Judgment of the ICTY Appeals Chamber
                     that was relied upon by this Court when it adopted its tripartite test for
                     genocidal intent in the Bosnia Judgment.

                         11 For the avoidance of any doubt, I recall that while I have found that Croatia’s claim

                     fails on evidentiary grounds, I am taking the present opportunity, as the majority has done,
                     to assess Croatia’s case taken at its highest.
                        12 Prosecutor v. Tolimir, Trial Judgment, 12 December 2012, para. 749 (internal cita-

                     tions omitted ; emphasis added).

                     418

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                     418 	 application of genocide convention (sep. op. bhandari)

                        16. After summarizing these widely accepted elements of the law on
                     genocidal intent, the Trial Chamber in Tolimir further recalled a passage
                     from an earlier judgment of the ICTY Trial Chamber in the case of
                     Jelisić 13, which was cited approvingly in a passage of the Krstić Appeals
                     Judgment 14 that was referenced favourably by the Court in the Bosnia
                     Judgment 15. As the Tolimir Trial Chamber recalled :
                               “The Jelisić Trial Chamber held that as well as consisting of the
                            desire to exterminate a very large number of members of the group,
                            genocidal intent may also consist of the desired destruction of a more
                            limited number of persons selected for the impact that their disappear‑
                            ance would have on the survival of the group as such.” 16

                       The Trial Chamber then made the following further observations about
                     the Jelisić Trial Judgment :
                               “The Jelisić Trial Chamber cited the Final Report of the Commis-
                            sion of Experts formed pursuant to Security Council Resolution 780
                            which found
                               ‘[i]f essentially the total leadership of a group is targeted, it could
                               also amount to genocide. Such leadership includes political and
                               administrative leaders, religious leaders, academics and intellec-
                               tuals, business leaders and others — the totality per se may be a
                               strong indication of genocide regardless of the actual numbers
                               killed. A corroborating argument will be the fate of the rest of the
                               group. The character of the attack on the leadership must be
                               viewed in the context of the fate or what happened to the rest of the
                               group. If a group has its leadership exterminated, and at the same
                               time or in the wake of that, has a relatively large number of the
                               members of the group killed or subjected to other heinous acts, for
                               example deported on a large scale or forced to flee, the cluster of
                               violations ought to be considered in its entirety in order to inter-
                               pret the provisions of the Convention in a spirit consistent with its
                               purpose.’. . .
                            The Commission of Experts Report stated, further, that
                               ‘[s]imilarly, the extermination of a group’s law enforcement and
                               military personnel may be a significant section of a group in that
                               it renders the group at large defenceless against other abuses of a
                               similar or other nature, particularly if the leadership is being eli-
                               minated as well. Thus the intent to destroy the fabric of a society
                               through the extermination of its leadership, when accompanied by

                       13  Prosecutor v. Jelisić, Trial Judgment, 14 December 1999, para. 82.
                       14  Prosecutor v. Krstić, Appeals Judgment, 19 April 2004, para. 8 and fn. 10.
                        15 Bosnia Judgment, p. 126, para. 198.
                        16 Prosecutor v. Tolimir, Trial Judgment, 12 December 2012, para. 749 ; citing Pros‑

                     ecutor v. Jelisić, Trial Judgment, 14 December 1999, para. 82.

                     419

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                     419 	 application of genocide convention (sep. op. bhandari)

                              other acts of elimination of a segment of society, can also be d
                                                                                eemed
                              genocide.’” 17
                        17. The Trial Chamber then proceeded to apply this more flexible con-
                     cept of substantiality to the factual circumstances of that case, which
                     involved, inter alia, the killing of three prominent members of the Bos-
                     nian Muslim population of Zepa enclave in Eastern Bosnia and Herze-
                     govina (“BiH”). As the Trial Chamber recalled, Zepa was a village
                     situated approximately 20 kilometres from Srebrenica that had a popula-
                     tion of less than 3,000 inhabitants prior to the war, but which saw its
                     population swell to as many as 10,000 people by July 1995, as Bosnian
                     Muslims from other surrounding areas in Eastern BiH sought refuge
                     from the prevailing hostilities, such that “[d]uring the conflict the popula-
                     tion of Zepa consisted entirely of Bosnian Muslims” 18.
                        18. Regarding the three individuals killed, the Trial Chamber made the
                     following observations :
                              “The three leaders were Mehmed Hajrić, the Mayor of the muni
                           cipality and President of the War Presidency, Colonel Avdo Palić,
                           Commander of the ABiH Zepa Brigade . . . and Amir Imamović, the
                           Head of the Civil Protection Unit. They were, therefore, among the
                           most prominent leaders of the enclave . . . [T]hose responsible for
                           killing Hajrić, Palić and Imamović targeted them because they were
                           leading figures in the Zepa enclave at the time that it was populated
                           by Bosnian Muslims. These killings should not be viewed in isola‑
                           tion . . . it is significant to consider the connection between the VRS
                           operations in Srebrenica and Zepa. The respective attacks and take-
                           overs of the enclaves were synchronized by the [same] leadership and
                           included the same forces. The takeover of Zepa enclave followed less
                           than two weeks after the capture of Srebrenica, during a time in which
                           the news of the murders of thousands of Bosnian Muslim men was
                           starting to spread. While the individuals killed were only three in num‑
                           ber, in view of the size of Zepa, they constituted the core of its civilian
                           and military leadership. The mayor, who was also a religious leader,
                           the military commander and the head of the Civil Protection Unit,
                           especially during a period of conflict, were key to the survival of a
                           small community. Moreover, the killing of Palić, who at this time
                           enjoyed a special status as the defender of the Bosnian Muslim pop-
                           ulation of Zepa, had a symbolic purpose for the survival of the Bos-
                           nian Muslims of Eastern BiH. While the majority accepts that the
                           Bosnian Serb Forces did not kill the entirety of the Bosnian Muslim
                           leadership of Zepa . . . it does not consider this to be a factor against

                         17 Prosecutor v. Tolimir, Trial Judgment, 12 December 2012, fn. 3138 ; emphasis added ;

                     citing Final Report of the Commission of Experts Established pursuant to Security Council
                     Resolution 780 (1992), UN doc. S/1994/674, (“Commission of Experts Report”), para. 94.

                         18 Prosecutor v. Tolimir, Trial Judgment, 12 December 2012, paras. 598‑599.

                     420

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                     420 	 application of genocide convention (sep. op. bhandari)

                           its determination that the acts of murder against these three men con‑
                           stitutes genocide.” 19
                     The Trial Chamber then proceeded to reach the following further conclu-
                     sions :
                              “In accordance with the Jelisić Trial Chamber’s finding in which it
                           relied on the Commission of Experts Report the Majority also takes
                           into account the fate of the remaining population of Zepa ; their for‑
                           cible transfer immediately prior to the killing of these three leaders is a
                           factor which supports its finding of genocidal intent. To ensure that the
                           Bosnian Muslim population of this enclave would not be able to recon‑
                           stitute itself, it was sufficient in the case of Zepa to remove its civilian
                           population, destroy their homes and their mosque, and murder its most
                           prominent leaders . . . The Majority has no doubt that the murder of
                           [these three leaders] was a case of deliberate destruction of a limited
                           number of persons selected for the impact that their disappearance
                           would have on the survival of the group as such.” 20

                        19. I acknowledge that these conclusions — which were subject to a
                     dissenting opinion and are currently awaiting a judgment from the ICTY
                     Appeals Chamber — must be treated with a requisite degree of caution.
                     Such limitations having been duly conceded, in my view the passages
                     cited above from the Tolimir Trial Judgment nevertheless evince a con-
                     certed departure from the narrower ambit of the tripartite test adopted by
                     this Court in the Bosnia Judgment. Given that the present Judgment has
                     likewise determined to apply the Bosnia formula in a more flexible man-
                     ner that places less emphasis on the primacy of the quantitative element,
                     I am both surprised and disheartened by the majority’s refusal to make
                     any mention of the most recent judicial pronouncement of the ICTY on
                     this highly pertinent and substantively fluid area of law.
                        20. Specifically, the Tolimir Judgment’s finding of genocide where only
                     three killings were proven marks a clear and unambiguous departure
                     from the Bosnia formula’s dogged insistence that the numerosity of the
                     victims of predicate acts under Article II of the Genocide Convention be
                     considered a pre‑eminent factor in the substantiality equation. Rather,
                     Tolimir presents a rather striking example of a case where not only were
                     the three individuals killed low in absolute terms, but against the back-
                     drop of a homogeneous religious community of approximately 10,000 it
                     is dubious to suggest that their deaths could constitute a high relative
                     “numerosity in relation to the group as a whole” 21. Rather, in find-
                     ing genocidal intent, the Tolimir Trial Chamber placed heavy empha-
                     sis on the prominence of the targeted population and the fact that the
                       19 Prosecutor v. Tolimir, Judgment, 12 December 2012, paras. 778‑780 ; emphasis

                     added.
                       20 Ibid., paras. 781‑782 ; emphasis added.
                       21 Ibid., para. 749.

                     421

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                     421 	 application of genocide convention (sep. op. bhandari)

                     attackers exercised complete control over the enclave during the period in
                     question.

                        21. Finally, what cannot be overlooked is that apart from three kill-
                     ings, the gravamen of the atrocities perpetrated at Zepa constituted the
                     complete forcible transfer of its entire Bosnian Muslim population, a
                     community of thousands, away from that enclave and into Bosnian‑
                     controlled territory. While Tolimir certainly did not go so far as to pro-
                     nounce that the “ethnic cleansing” of these thousands of Bosnian Muslims
                     from Zepa enclave (in conjunction with means taken to ensure their
                     non‑return, such as destruction of homes and places of worship) consti-
                     tuted genocide per se, it did clearly and unequivocally affirm that this
                     mass displacement of the civilian population, when combined with the
                     very limited targeted killing of prominent local leaders, constituted an
                     attempt to physically destroy a significant part of the Bosnian Muslim
                     group of Eastern BiH, by depriving that community of the means of recon‑
                     stituting itself within that geographical area. On this final point, it would
                     appear to be a clear evolution of the position adopted by this Court in the
                     Bosnia Judgment as to what constitutes “physical destruction” of the
                     group for the purpose of Article II of the Genocide Convention, where it
                     was held that
                            “[i]t will be convenient at this point to consider what legal significance
                            the expression [‘ethnic cleansing’] may have [under the Genocide Con‑
                            vention]. It is in practice used, by reference to a specific region or area,
                            to mean ‘rendering an area ethnically homogeneous by using force or
                            intimidation to remove persons of given groups from the area’. . .
                           It does not appear in the Genocide Convention ; indeed, a proposal
                           during the drafting of the Convention to include in the definition
                           ‘measures intended to oblige members of a group to abandon their
                           homes in order to escape the threat of subsequent ill‑treatment’
                           was not accepted . . . It can only be a form of genocide within the
                           meaning of the Convention, if it corresponds to or falls within one of
                           the categories of acts prohibited by Article II of the Convention. Nei
                           ther the intent, as a matter of policy, to render an area ‘ethnically
                           homogeneous’, nor the operations that may be carried out to implement
                            such policy, can as such be designated as genocide . . . As the ICTY
                            has observed, while

                              ‘there are obvious similarities between a genocidal policy
                              and the policy commonly known as ‘ethnic cleansing’. . . [a]
                              clear distinction must be drawn between physical destruction
                              and mere dissolution of a group. The expulsion of a group

                     422

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                     422 	 application of genocide convention (sep. op. bhandari)

                              or part of a group does not in itself suffice for geno
                                                                                -
                              cide.’” 22
                     In the present Judgment, this relationship has been revisited in the follow-
                     ing terms :
                           “The Court recalls that, in its 2007 Judgment, it stated that
                             ‘[n]either the intent, as a matter of policy, to render an area ‘ethni-
                             cally homogeneous’, nor the operations that may be carried out to
                             implement such policy, can as such be designated as genocide : the
                             intent that characterizes genocide is ‘to destroy, in whole or in
                             part’ a particular group, and deportation or displacement of the
                             members of a group, even if effected by force, is not necessarily equi‑
                             valent to destruction of that group, nor is such destruction an auto‑
                             matic consequence of the displacement. [. . .]’

                           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 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 destruc-
                              tion of the group, as distinct from its removal from the region . . .
                              In other words, whether a particular operation described as ‘eth-
                              nic cleansing’ amounts to genocide 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 pre-
                              sence of a specific intent (dolus specialis) inspiring those acts.’”
                              (Judgment, para. 162 (internal citations omitted ; emphasis
                              added).)

                       22. In my respectful view, the ICTY Trial Chamber in Tolimir has
                     burst open the tight confines of the dictum promulgated in Bosnia and
                     reaffirmed in the present Judgment. By finding that the confluence of kill-
                     ing three prominent community leaders (which constitute genocidal acts
                     as per Article II (a) of the Convention) in parallel to massive acts of

                       22 Bosnia Judgment, pp. 122‑123, para. 190 (internal citations omitted ; emphasis

                     added).

                     423

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                     423 	 application of genocide convention (sep. op. bhandari)

                     ethnic cleansing (which are non‑genocidal atrocities per se ; see Judgment,
                     para. 162) was sufficient to characterize the entire series of events occur‑
                     ring at Zepa as possessing genocidal intent, the Trial Chamber clearly went
                     above and beyond this Court in Bosnia and the present Judgment, if not
                     in its application of the letter of the applicable law, then clearly in its
                     appreciation of the spirit thereof. Stated differently, there is no indication
                     in Tolimir that the approximately 10,000 denizens of Zepa enclave who
                     were forcibly removed from the area and prevented from returning were
                     targeted for physical or biological destruction as envisaged by Article II
                     of the Convention. Rather, the Trial Chamber found that their permanent
                     removal from that geographical area (in conjunction with the destruction
                     of a diminutive core of its civil and military leadership) was enough to
                     constitute “physical or biological” destruction under the terms of Arti-
                     cle II of the Convention. This cannot but be described as a clear depar-
                     ture from the Court’s analysis in Bosnia and certain other judgments
                     rendered by the ICTY upon which the Court in Bosnia relied. Not only
                     has the quantitative element that featured so prominently in Bosnia been
                     eschewed, but the Tolimir Judgment has clearly pushed the boundaries of
                     what constitutes physical or biological destruction by expressly incorpo-
                     rating non‑fatal geographical concerns. In other words, according to my
                     reading of Tolimir the Trial Chamber clearly found that genocidal intent
                     was established not because the approximately 10,000 Bosnian Muslims
                     of Zepa enclave were targeted for elimination per se, but rather because
                     they were targeted for elimination from that specific location.

                        23. Granted, the majority’s reticence to adopt a Tolimir‑style approach
                     may be readily (and defensibly) explained by considerations such as the
                     fact that the case remains under appeal and that the finding of genocide
                     at Zepa was linked (although obliquely) to the now widely recognized
                     genocide that was perpetrated by the same attackers at Srebrenica some
                     20 kilometres away and mere days beforehand. Nevertheless, in my
                     respectful view, to ignore Tolimir completely constitutes a failure by the
                     majority to heed its own undertaking to “take account, where appropri-
                     ate, of the decisions of international criminal courts or tribunals, in par-
                     ticular those of the ICTY, as it did in 2007, in examining the constituent
                     elements of genocide in the present case” (Judgment, para. 129). I shall
                     return to this aspect of the Tolimir precedent when dissecting the present
                     Judgment’s treatment of Croat victims during the siege of Vukovar and
                     its aftermath (see infra).

                     424

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                     424 	 application of genocide convention (sep. op. bhandari)

                                   The Popović ICTY Trial Chamber Judgment

                       24. In the Popović case, the Trial Chamber of the ICTY provided an
                     analysis on the substantiality component in relation to the killing of sev-
                     eral thousand Bosnian Muslim men at Srebrenica enclave in Eastern Bos-
                     nia and Herzegovina in July 1995. It is to be recalled that both the Court
                     and several Trial and Appeals Chambers of the ICTY have consistently
                     held that the massacre at Srebrenica constituted genocide. Consequently,
                     while the Popović Trial Chamber’s finding of genocidal intent in relation
                     to the Srebrenica massacre is not in itself a novel jurisprudential develop-
                     ment, in expounding this notion the Trial Chamber made the following
                     noteworthy remarks :

                              “The Trial Chamber finds that the Muslims of Eastern Bosnia con-
                           stitute a substantial component of the entire group, Bosnian Muslims.
                           As has been found by the Appeals Chamber, although the size of the
                           Bosnian Muslim population in Srebrenica before its capture . . . was
                           a small percentage of the overall Muslim population of BiH at the
                           time, the import of the community is not appreciated solely by its size.
                           The Srebrenica enclave was of immense importance to the Bosnian Serb
                           leadership because : (1) the ethnically Serb state they sought to create
                           would remain divided and access to Serbia disrupted without Srebren‑
                           ica ; (2) most of the Muslim inhabitants of the region had, at the
                           relevant time, sought refuge in the Srebrenica enclave and the elimi-
                           nation of the enclave would accomplish the goal of eliminating the
                           Muslim presence in the entire region ; and (3) the enclave’s elimination
                           despite international assurances of safety would demonstrate to the Bos‑
                           nian Muslims their defenceless and be ‘emblematic’ of the fate of all
                           Bosnian Muslims.” 23

                        25. In my respectful view, the first and third factors enumerated by the
                     Trial Chamber in Popović may have warranted consideration when con-
                     ducting an assessment of genocidal intent in the present Judgment, par-
                     ticularly with reference to the attack on Vukovar municipality. Regarding
                     the first factor, I note that the Judgment has recalled that :

                               “Croatia attaches particular importance to the events which took
                            place in Vukovar and its surrounding area in the autumn of 1991.
                           According to the Applicant, the JNA and Serb forces killed several
                           hundred civilians in that multi‑ethnic city in Eastern Slavonia,
                           situated on the border with Serbia and intended to become, under the

                       23 Prosecutor v. Popović et al., Trial Judgment, 10 June 2010, para. 865 ; emphasis

                     added.

                     425

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                     425 	 application of genocide convention (sep. op. bhandari)

                            plans for a ‘Greater Serbia’, the capital of the new Serbian region of
                            Slavonia, Baranja and Western Srem.” (Judgment, para. 212 ; empha-
                            sis added.)
                     This averred emblematic significance of Vukovar can be further inferred
                     from the findings of the ICTY Trial Chamber in Mrkšić, as accepted by
                     the Court in the instant Judgment, which found that during the approxi-
                     mately three‑month siege of Vukovar :
                               “The duration of the fighting, the gross disparity between the num-
                            bers 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 Vukovar and
                            its immediate surroundings by the massive Serb forces over the pro‑
                            longed military engagement, demonstrate, in the finding of the Cham‑
                            ber, that the Serb attack was also consciously and deliberately directed
                            against the city of Vukovar itself and its hapless civilian population,
                            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 find-
                            ing of the Chamber, merely an armed conflict between a military force
                            and an opposing force in the course of which civilians became casu-
                            alties 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 . . .
                               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 operation
                            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 . . .” 24
                       In my view, this sustained, ethnically discriminatory attack, aimed in
                     part at the slow and systematic destruction of the Croat civilian populace
                     of Vukovar, provides implicit evidence of its strategic importance in terms
                     of allowing the expansionist policy of “Greater Serbia” to gain a pivotal
                     foothold within Croatian territory, and thus heightens the prominence of
                     the Vukovar Croat subgroup when assessing genocidal intent vis‑à‑vis
                     that municipality and its environs.

                       26. Regarding the third criterion enunciated in Popović, I recall that
                     the evacuation of Vukovar hospital on 20 November 1991, through which
                     many Croats were interned at nearby concentration camps and subse-

                       24   Judgment, para. 218 ; citing Mrkšić, paras. 470 and 472.

                     426

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                     426 	 application of genocide convention (sep. op. bhandari)

                     quently killed, severely beaten and/or otherwise subjected to serious forms
                     of physical and psychological abuse, was conducted in violation of the
                     Zagreb Agreement, which purported to allow for the safe evacuation of
                     those internally displaced Vukovar Croats who had sought refuge at the
                     local hospital under the supervision of neutral international monitors. I
                     believe that the deliberate and cynical manner in which this international
                     agreement was violated, to the grave detriment of those who made the
                     assumption that a widely publicized agreement would guarantee their
                     safety, allows for the inference that the sorry plight of the victims from
                     Vukovar hospital and those subsequently interned in concentration and
                     death camps, could certainly, to paraphrase Popović, “demonstrate to the
                     Vukovar Croats their defencelessness and be emblematic of the fate of all
                     ethnic Croats on Croatian territory”.

                                 The Nizeyimana ICTR Trial Chamber Judgment

                        27. In the Nizeyimana case, the accused was convicted at trial for geno-
                     cide in relation to, inter alia, the killing of Rosalie Gicanda, a member of
                     the targeted Tutsi ethnic group and former Queen of Rwanda. In apply-
                     ing the substantiality criterion of genocidal intent, the Trial Chamber
                     stressed that

                           “[t]he fact that this operation targeted one Tutsi in particular in no way
                           impacts the conclusion that the perpetrators possessed the intent to
                           destroy at least a substantial part of the Tutsi ethnic group. The Cham-
                           ber reiterates that this killing must be viewed in the context of the
                           targeted and systematic killing of Tutsis perpetrated . . . in Butare
                           [town] around this time. Moreover, the symbolic importance of the kill‑
                           ing of Gicanda as a means of identifying the enemy is also relevant.” 25
                        In that regard, the Trial Chamber noted that it had “no doubt that the
                     murder of Gicanda . . . who was a symbol of the former [Tutsi] monar-
                     chy, was killed in order to set a striking example that Tutsis, as well as
                     Hutus sympathetic to the plight of the Tutsis, were the enemy” 26. The Trial
                     Chamber further stressed the nexus between this particular attack and the
                     significantly increased violence against Tutsi civilians in Butare town fol-
                     lowing an incendiary speech by the President of Rwanda on 19 April 1994
                     in which he exhorted the population to seek out and kill Tutsis.

                        28. In relation to a separate incident, the Trial Chamber found that the
                     killing of one Pierre Claver Karenzi, a Tutsi lecturer at a local university

                       25 Prosecutor v. Nizeyimana, Trial Judgment, 19 June 2012, para. 1530 ; emphasis

                     added.
                       26 Ibid., para. 1511 ; emphasis added.

                     427

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                     427 	 application of genocide convention (sep. op. bhandari)

                     who was considered “a prominent figure in Butare” town also constituted
                     genocide. Again the Trial Chamber found that
                           “Karenzi’s murder is also emblematic of the systematic nature in which
                           Tutsi civilians were identified and killed on an ongoing basis at road-
                           blocks manned by . . . soldiers in Butare town. Consequently, while
                           this incident only resulted in the killing of one Tutsi, the Chamber has
                           no doubt that the physical perpetrator acted with the specific intent to
                           destroy at least a substantial part of the Tutsi group.” 27
                     Once again the Trial Chamber found that this attack was linked to the
                     broader context of significantly increased targeted killings of the Tutsi
                     ethnic group in Butare town around that time in the wake of the Presi-
                     dent’s speech.
                       29. Finally, the Trial Chamber found genocidal intent in relation to
                     another incident where two Tutsi civilians were killed and another seri-
                     ously injured at a military roadblock. As the Trial Chamber reasoned,
                           “[w]hile these attacks only resulted in the deaths of two Tutsis and the
                           serious bodily harm of a third, the Chamber has no doubt that the per‑
                           petrators acted with the intent to destroy at least a substantial part of
                           the Tutsi group. These attacks were emblematic of the systematic nature
                           in which Tutsi civilians were identified and killed on an ongoing basis
                           at this roadblock and others manned by . . . soldiers in Butare town.” 28

                     What is particularly noteworthy about this specific finding of genocidal
                     intent is the Trial Chamber’s determination that the attack on the three
                     Tutsi victims was “emblematic” of the overall group not because of
                     the individual prominence of the victims within the community (there
                     was no evidence on record to suggest such a conclusion), but rather
                     because the attack on them embodied a modus operandi for the system‑
                     atic destruction of the Tutsi group in Butare town generally. In other
                     words, Tutsis at the roadblock were “emblematic” of the overall group
                     not because of who they were, but rather the manner in which they
                     were attacked. While indicia of “prominence” through the modus operandi
                     of the attack may be gleaned from the killings of Gicanda and Karenzi,
                     the fact that the victims of this third attack did not hold any prominent
                     positions within the Tutsi community only further underscores the point.
                     Consequently, I find these exemplars from the Nizeyimana Trial
                     Judgment to signal a clear departure from what was envisaged

                     by the “qualitative approach” in the Court’s Bosnia Judgment (and
                     subsequently rebranded as the “prominence” of the targeted group

                     in the instant Judgment), and believe that the present Judgment’s
                     analysis would have been enriched by a consideration of this recent,

                       27 Prosecutor v. Nizeyimana, Trial Judgment, 19 June 2012, para. 1530 ; emphasis

                     added.
                       28 Ibid., para. 1521 ; emphasis added.

                     428

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                     428 	 application of genocide convention (sep. op. bhandari)

                     ertinent jurisprudential development on the law of genocidal dolus
                     p
                     specialis.

                       30. Applying the Nizeyimana precedent to the facts at bar, I would
                     note that the present Judgment recalls that the Mrkšić Trial Chamber
                     found that the attacks in Eastern Slavonia generally followed a consistent
                     pattern :
                               “[T]he 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 behaviour ; (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 delega-
                            tions are formed but their consultations with JNA military authorities
                            do not lead . . . to peaceful arrangements ;. . . (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 dis-
                            crimination.” 29

                     The Judgment also recalled that in the Martić case, the ICTY Trial
                     Chamber made similar findings regarding the pattern of attacks perpe-
                     trated by Serb forces in Croatia :
                               “[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 prevent their return and widespread looting would be carried out.
                            In some instances the police and the TO of the SAO Krajina organ-
                            ized transport for the non‑Serb population in order to remove it from
                            SAO Krajina territory to locations under Croatian control. More
                            over, members of the non‑Serb population would be rounded up and
                            taken away to detention facilities, including in central Knin, and even-
                            tually exchanged and transported to areas under Croatian control.” 30
                     After considering, inter alia, these findings from the ICTY, the present
                     Judgment concludes that :
                              “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

                       29   Judgment, para. 414, citing Mrkšić Trial Judgment, para. 43.
                       30   Ibid., para. 427.

                     429

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                     429 	 application of genocide convention (sep. op. bhandari)

                            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 population from these localities.
                              The findings of the Court and those of the ICTY are mutually
                            consistent, and establish the existence of a pattern of conduct that
                            consisted, 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.” (Judgment,
                            paras. 415‑416.)
                        31. Bearing this established pattern of conduct throughout various
                     parts of the territory of Croatia in mind, I would further recall that the
                     Applicant has presented the siege of Vukovar as representing a paradig-
                     matic example of the modus operandi outlined above. As counsel for Cro-
                     atia stated during the oral hearing phase of this case,
                               “[W]hat happened at Vukovar was repeated again and again across
                            Eastern Slavonia and across Croatia as a whole in the course of this
                            conflict. This pattern may have varied from village to village, town to
                            town and across different regions. But, properly analysed, the ‘pat-
                            tern’ discloses that there was an intention to ‘destroy’ a part of the
                            Croat group in question. The artillery or mortar shelling was wholly
                            disproportionate and, in places, such as Vukovar, essentially destroyed
                            the entire city. And the murderous attacks were never intended as part
                            of the mere expulsion of a part of the Croat group in question.” 31
                       Consequently, I believe that in view of the Nizeyimana Trial Judgment,
                     the Judgment’s analysis with respect to substantiality could have been
                     enhanced by considering the modus operandi of the attack on Vukovar,
                     being a microcosm for the manner in which a much wider conflict was
                     waged, for the purpose of assessing whether the “prominence” of the
                     Vukovar Croats could factor into the calculus as to whether they were
                     targeted with genocidal intent.

                                 The Hategekimana ICTR Trial Chamber Judgment

                        32. In the case of Hategekimana, the accused was convicted, inter alia,
                     of genocide for the murder of three Tutsi women during an attack on their
                     home by militia and soldiers. In determining genocidal intent, the Trial
                     Chamber noted that in addition to the fact that the three women were
                     singled out because of their ethnicity, the Chamber had received “exten-
                     sive evidence . . . about the targeting of Tutsi civilians in Butare [prov-
                     ince] following the speech of interim President Sindikubwabo on
                     19 April 1994”, which resulted in “many Tutsi civilians being killed in their
                       31   CR 2014/8, p. 47 (Starmer) ; emphasis added.

                     430

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                     430 	 application of genocide convention (sep. op. bhandari)

                     homes over the course of many days”. The Chamber found that “[g]iven
                     the scale of the killings and their context, the only reasonable inference is
                     that the assailants [who killed the women] possessed the intent to destroy
                     in whole or in part a substantial part of the Tutsi group” 32. Once again
                     we see an example where an attack against a targeted group that resulted
                     in a comparatively low absolute and relative number of victims was
                     nevertheless deemed to possess genocidal intent, due at least in part to
                      the modus operandi of the manner in which they were killed.

                                  The Munyakazi ICTR Trial Chamber Judgment

                        33. In the case of Munyakazi, the accused was convicted of genocide
                     for, inter alia, an attack on a parish that killed between 60 and 100 Tutsi
                     refugees. The Trial Chamber observed that the attack occurred the day
                     after a much larger attack on a different parish where approximately
                     5,000 to 6,000 Tutsis were killed by the same group of perpetrators. Con-
                     sidering both attacks as a whole, the Trial Chamber found genocidal
                     intent for a substantial part of the Tutsi ethnic group 33. This finding of
                     genocide evokes many parallels with the ICTY Trial Chamber’s finding
                     of genocide in relation to Zepa enclave in the Tolimir Judgment, which
                     also featured an attack on one geographic area where a relatively small
                     number of victims were killed (Zepa) but which was closely linked, in
                     terms of geography, time, and the identity of the perpetrators, to a previ-
                     ous, considerably more sizeable attack (Srebrenica).

                                       Other ICTR Trial Chamber Judgments

                        34. In keeping with the pattern demonstrated above, since the Court’s
                     issuance of the Bosnia Judgment in 2007, the ICTR has made findings of
                     genocide in relation to scenarios where “the quantitative element” (to use
                     the nomenclature adopted by the present Judgment) figured far less
                     prominently in the calculus as to whether the attacks were perpetrated
                     with genocidal intent than a strict application of the Bosnia formula
                     would dictate. In this regard, we see that genocidal intent in several
                     instances was inferred in large part due to the geographic profile of
                     the situs of the attack and/or the prominence of the victims (whether
                     said prominence was measured in terms of personal standing in the

                       32 Prosecutor v. Hategekimana, Trial Judgment, 6 December 2010, para. 673 ; emphasis

                     added.
                       33 Prosecutor v. Munyakazi, Trial Judgment, 5 July 2010, paras. 496, 499‑500.

                     431

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                     431 	 application of genocide convention (sep. op. bhandari)

                     community of the victim or the modus operandi of how the attack
                      unfolded) 34. In sum, what we see is a clearly more flexible application
                      of genocidal dolus specialis that would tend to challenge the pre‑eminence
                      afforded the substantiality criterion in the Bosnia case.

                         35. For the avoidance of any doubt, I wish to underscore my recogni-
                      tion that there are obviously significant contextual differences between
                      the crimes prosecuted in relation to Croatia before the ICTY (and, by
                      extension, the subject‑matter presently before the Court) and those relat-
                     ing to Rwanda before the ICTR, not the least of which is the sheer dis-
                     parity in scale of the atrocities that occurred during the course of the
                     respective conflicts. Hence I recall that Croatia’s case — taken at its high-
                      est — is that the hostilities that form the backdrop to the present Judg-
                     ment resulted in 12,500 Croat deaths, whereas conservative estimates of
                     the carnage in Rwanda posit that at least half a million ethnic Tutsis and
                     moderate Hutus were killed during the course of the genocide that unfolded
                     in that country in 1994 — a genocide, which, it should be noted, was the
                     subject of an express finding of judicial notice by the ICTR Appeals
                     Chamber 35. Indeed, I recall that the Court stipulated in the present Judg-
                      ment that it would give particular preference to jurisprudence emanating
                      from the ICTY (see supra, paragraph 13, citing paragraph 129 of the
                     Judgment), and I understand this perfectly sensible decision to be moti-
                     vated in large part by the plain fact that the cases before the ICTY involve
                     much closer historical, socio‑political and legal issues to those presented
                     in the case at bar than cases appearing before the ICTR.

                         36. In sum, while I am by no means advocating the wholesale importa-
                      tion of ICTR case law into the jurisprudence of this Court, my concern
                      lies with what I find to be essentially the complete disregard of the most
                      prolific judicial body to have interpreted and applied the Genocide
                     Convention in the course of human history. With the greatest of respect
                      to my learned colleagues, failure to so much as consult this ample body of
                      jurisprudence, to my mind, constitutes a failure by the Court in its duty
                      and its undertaking to keep abreast of the most recent and pertinent
                      developments in the law of genocide in the present Judgment.

                        34 See, e.g., Prosecutor v. Nsengimana, Trial Judgment, 17 November 2009,

                     paras. 834‑836 ; Prosecutor v. Renzaho, Trial Judgment, 14 July 2009, paras. 768‑769 ;
                     Prosecutor v. Rukundo, Trial Judgment, 27 February 2009, paras. 72, 74, 76 ; Prosecutor v.
                     Nchamihigo, Trial Judgment, 12 November 2008, paras. 333‑336, 346‑347, 354, 357.
                        35 This landmark decision was delivered by the Appeals Chamber on Prosecutor’s

                     Appeal on Judicial Notice, dated 16 June 2006, in the trial of Prosecutor v. Karemera,
                     Ngirumpatse and Nzirorera, ICTR‑98‑44AR73 (C).

                     432

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                     432 	 application of genocide convention (sep. op. bhandari)

                              Conclusion on the Court’s Treatment of post‑Bosnia
                                    Jurisprudence of the ICTY and ICTR

                         37. In view of the observations above, I believe that the jurisprudence
                     of the ad hoc international criminal tribunals in the years following the
                     issuance of this Court’s Bosnia Judgment demonstrate a dilution of the
                     rigidly hierarchical tripartite formula for discerning genocidal intent as
                     promulgated in that precedent, whereby the numerosity of the targeted
                     population was clearly designed to serve as the pre‑eminent concern in
                     any such calculus. As I have noted above, while there are traces of a mol-
                     lified approach to be found in the Judgment’s gentle refastening of the
                     Bosnia formula into a more egalitarian weighing of the three criteria to be
                     applied in the present Judgment, in my respectful view it was incumbent
                     upon the Court to take the further step of explicitly acknowledging and
                     engaging the recent, pertinent jurisprudential developments presented by
                     the ICTY and ICTR in this area of law and to incorporate, if and where
                     appropriate, any evolutions to the Bosnia test that are not only strictly
                     necessary for the disposition of the merits of the present dispute, but
                     which may elucidate the development this legal area has undergone over
                     the past eight years. In other words, even if it were not appropriate or
                     even correct to apply such precedents to the facts at bar, in my considered
                     opinion it was certainly appropriate to at least consider such key develop-
                     ments, if only to explain why they ought to be distinguished from the
                     present case. Such an approach, I suggest, would be wholly commensu-
                     rate with the Court’s role as a pre‑eminent global judicial forum to which
                     other international dispute resolution mechanisms turn in search of guid-
                     ance on such important and arcane points of law. Consequently, I regret
                     that the majority has missed a prime opportunity to improve the clarity
                     and authority of this area of public international law.

                                The Majority’s Conclusions on Genocidal Intent
                                           in the Present Judgment

                       38. In assessing whether the targeted group was “substantial” for pur-
                     poses of the chapeau of Article II of the Genocide Convention, the Judg-
                     ment recalls Croatia’s submission
                           “that the Croats living in the regions of Eastern Slavonia, Western
                           Slavonia, Banovina/Banija, Kordun, Lika and Dalmatia [who were tar-
                           geted for destruction by JNA and affiliated Serb forces] constituted a
                           substantial part of the protected group, and that the intent to destroy
                           the protected group ‘in part’, which characterizes genocide as defined

                     433

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                     433 	 application of genocide convention (sep. op. bhandari)

                           in Article II of the Convention, is thus established” (Judgment,
                           para. 403 ; emphasis added).
                        The Judgment also recalls that “[i]n its written pleadings, Croatia
                     defines [the overall protected] group [at issue in its Claim] as the Croat
                     national or ethnical group on the territory of Croatia, which is not con-
                     tested by Serbia” (see ibid., para. 205 ; emphasis added). Relying on offi-
                     cial census data from 1991 — the year in which the hostilities that are the
                     subject‑matter of the present dispute commenced — adduced by Croatia,
                     and uncontested by Serbia, the Judgment finds that “the ethnic Croat
                     population living in the [identified] regions . . . numbered between 1.7 and
                     1.8 million [individuals . . . and] constituted slightly less than half of the
                     ethnic population living in Croatia” (see ibid., para. 406). The Judgment
                     further concludes “that acts committed by JNA and Serb forces in the
                     [identified] regions . . . targeted the Croats living in those regions, within
                     which these armed forces exercised and sought to expand their control”
                     (ibid). While the majority also found that “as regards the prominence of
                     that part of the group, the Court notes that Croatia has provided no
                     information on this point” (ibid.) — a conclusion I do not share, and to
                     which I shall return presently — “[t]he Court [nevertheless] concludes
                     from the foregoing that the Croats living in the [identified] regions . . .
                     constituted a substantial part of the Croat group” (ibid.). Despite my
                     misgivings about the majority’s pronouncement as to the ostensible lack
                     of evidence regarding the prominence of the Croat ethnic group at issue,
                     I am in full agreement with the majority’s general conclusion that the part
                     of the ethnic Croat group identified by the Applicant constituted a sub-
                     stantial part of the overall Croat ethnic group living within the territory
                     of Croatia during the relevant period.
                        39. It is to be further recalled that the Judgment concludes that :

                              “The Court is fully convinced that, in [the] various [identified] local-
                           ities . . . the JNA and Serb forces perpetrated against members of the
                           protected group acts falling within subparagraphs (a) [killing mem-
                           bers of the group] and (b) [causing serious bodily or mental harm to
                           members of the group] of Article II of the Convention, and that the
                           actus reus of genocide has been established.” (Ibid., para. 401.)
                     I am also in complete agreement with the majority on this point. Where I
                     depart from the majority is in the manner of reasoning through which it has
                     arrived at its conclusion that “[t]he acts constituting the actus reus of geno-
                     cide within the meaning of Article II (a) and (b) of the Convention were
                     not committed with the specific intent required for them to be character-
                     ized as acts of genocide” (ibid., para. 440). While I again recall that I have
                     joined the majority in rejecting Croatia’s claim that genocide was com-
                     mitted against the targeted Croat population on evidentiary grounds, given
                     that the majority has elected to take Croatia’s case at its highest prior to
                     dismissing it, I shall proceed to make certain observations and critiques

                     434

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                     434 	 application of genocide convention (sep. op. bhandari)

                     regarding its approach to the analysis of genocidal dolus specialis as per-
                     tains to Croatia’s allegations.

                             The Geographic Area Considered by the Majority when
                                           Assessing Dolus Specialis

                        40. As I have noted, supra, the Judgment characterizes Croatia’s
                     delimitation of the relevant “part” of the ethnic Croat group as being
                     “the Croats living in the regions of Eastern Slavonia, Western Slavonia,
                     Banovina/Banija, Kordun, Lika and Dalmatia” (Judgment, para. 403).
                     While I agree with this conclusion as pertains to these six geographical
                     locales, I am also mindful of the fact that the gravamen of Croatia’s case
                     focused heavily on the specific region of Eastern Slavonia, and in particu-
                     lar the city of Vukovar and its environs. As counsel for Croatia submitted
                     during the oral hearing phase of this case :
                               “Even when judged against the other atrocities detailed by the Appli‑
                            cant before this Court . . . the events in Vukovar plumbed new depths.
                            Serbian forces carried out a sustained campaign of shelling ; system-
                            atic expulsion ; denial of food, water, electricity, sanitation and med-
                            ical treatment ; bombing ; burning ; brutal killings and torture which
                            reduced the city to rubble and destroyed its Croat population. It started
                            with roadblocks and ended with torture camps and mass execution.
                            In human terms, the scar will never heal.

                              The events at Vukovar are significant and they are known around
                            the world. They deserve to be examined in context, in detail and in
                            full.” 36
                     This heavy reliance by Croatia on the events at Vukovar throughout this
                     case is even conceded by Serbia when it acknowledges in its written
                     Rejoinder that “[t]he most significant episodes in Eastern Slavonia took
                     place in Vukovar, and these attract the bulk of the discussion in the Reply,
                     as they did in the Memorial and Counter‑Memorial” 37. Indeed, on more
                     than one occasion it has been expressly recognized by the Court in the
                     present Judgment that “Croatia has given particular attention” to “the
                     events at Vukovar” in pursuing its claims in this case (Judgment,
                     paras. 429 and 436).
                        41. Moreover, there is clear precedent from this Court that an analysis
                     of genocidal intent may be confined to a geographic area notably smaller
                     than the six expansive regions considered by the present Judgment, even
                     if the Applicant framed its cause of action with respect to a wider geograph‑

                       36   CR 2014/8, pp. 28‑29, paras. 1-2 (Starmer) ; emphasis added.
                       37   Rejoinder of Serbia, para. 370 ; emphasis added.

                     435

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                     435 	 application of genocide convention (sep. op. bhandari)

                     ical area. This was of course precisely what occurred in the 2007 Bosnia
                     Judgment, wherein the Court made a finding of genocide solely with
                     respect to Srebrenica, a Bosnian Muslim enclave consisting of upwards of
                     30,000 people where more than 7,000 military‑aged Bosnian Muslim men
                     were systematically rounded up and executed while the remaining popula-
                     tion of approximately 25,000 Bosnian Muslims — mostly women, chil-
                     dren and the elderly — were ethnically cleansed from the enclave 38. It is
                     to be recalled that this isolated finding of genocide was made in spite of the
                     Applicant Bosnia and Herzegovina’s much broader allegations of genocide,
                     which included events in the capital city of Sarajevo, as well as acts that
                     occurred at various other municipalities and camps spread across the ter-
                     ritory of BiH.

                        42. In view of these considerations, my ensuing remarks shall confine
                     themselves to the majority’s analysis of genocidal intent regarding the
                     events at Vukovar. While I must reiterate, for the sake of absolute clarity,
                     that it is not my contention that genocidal intent was established with
                     respect to the events occurring on Croatian soil between 1991 and 1995
                     (including Vukovar), I steadfastly believe that the majority has failed to
                     fully and properly canvass the events at Vukovar, being as they are the
                     cornerstone of Croatia’s case in the instant proceedings, and thus I intend
                     to present additional considerations that I believe the majority was remiss
                     in failing to consider when determining whether genocide was perpetrated
                     against the Vukovar Croats.

                                                     The Siege of Vukovar

                        43. During the oral hearing phase of these proceedings, Croatia cited
                     uncontested census statistics indicating that in 1991 Vukovar “had a pop-
                     ulation of just over 21,000 Croats [and] 14,500 Serbs” 39, whereas “[e]ven
                     after the peaceful reintegration of the region, only 7,500 of the original
                     21,500 Croat population of Vukovar in 1991 have ever returned to the
                     city” 40. Counsel for Croatia further averred that during the siege of Vuk-
                     ovar that lasted from August to November 1991, between 1,100 and
                     1,700 Croats were killed, whereas after the fall of the city and the ensuing
                     occupation by JNA and Serb forces, an additional 2,000 Croats were
                     killed 41. I recall and share the majority’s conclusion that the Croat popu-
                     lation in all six geographic regions relied upon by the Applicant consti-
                     tutes a substantial part of the overall Croat ethnic group within the

                       38   Bosnia Judgment, p. 155, para. 278, citing Krstić Trial Judgment, para. 1.
                       39 CR 2014/8, p. 29, para. 7 (Starmer).
                       40 Ibid., p. 47, para. 85 (Starmer).
                       41 CR 2014/12, p. 11 (Starmer).

                     436

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                     436 	 application of genocide convention (sep. op. bhandari)

                     territory of Croatia. However, I further recall my remarks above that
                     there is clear precedent for considering a much smaller geographic and
                     demographic area for the purpose of determining whether that subgroup
                     constitutes a “substantial” part of the overall group, and hence conclude
                     that the Vukovar Croats in and of themselves — in addition to their inclu-
                     sion in “the substantial” subgroup comprising the six geographic regions
                     as recognized by the Judgment — constituted a substantial part of the
                     overall ethnic Croat group within the geographical territory of Croatia
                     during the relevant period. In this regard, I would recall the Court’s char-
                     acterization of what constituted a “substantial” part of the targeted group
                     in question from the following passage of the Bosnia Judgment, in which
                     certain conclusions of the ICTY Appeals Chamber in the Krstić case were
                     adopted :

                             “The Court now turns to the requirement of Article II that there
                           must be the intent to destroy a protected ‘group’ in whole or in
                           part . . . the Court recalls the assessment it made earlier in the Judg-
                           ment of the persuasiveness of the ICTY’s findings of facts and its
                           evaluation of them . . . Against that background it turns to the find-
                           ings in the Krstić case . . . in which the Appeals Chamber endorsed
                           the findings of the Trial Chamber in the following terms.

                                 ‘In this case, having identified the protected group as the natio-
                              nal group of Bosnian Muslims, the Trial Chamber concluded that
                              the part . . . targeted was the Bosnian Muslims of Srebrenica, or the
                              Bosnian Muslims of Eastern Bosnia. This conclusion comports
                              with the guidelines outlined above. The size of the Bosnian
                              Muslim population in Srebrenica prior to its capture by the VRS
                              forces in 1995 amounted to approximately forty thousand people.
                              This represented not only the Muslim inhabitants of the Srebre-
                              nica municipality but also many Muslim refugees from the sur-
                              rounding region. Although this population constituted only a small
                              percentage of the overall Muslim population of Bosnia and Herze‑
                              govina at the time, the importance of the Muslim community of Sre‑
                              brenica is not captured solely by its size.’
                           The Court sees no reason to disagree with the concordant findings of
                           the Trial Chamber and the Appeals Chamber.
                              The Court concludes that the acts committed at Srebrenica falling
                           within Article II (a) and (b) of the Convention were committed with
                           the specific intent to destroy in part the group of the Muslims of Bosnia
                           and Herzegovina as such ; and accordingly that these were acts of
                           genocide, committed by members of the VRS in and around Srebren-
                           ica from about 13 July 1995.” 42
                       42 Bosnia Judgment, p. 166, paras. 296‑297 (internal citations omitted) ; emphasis

                     added.

                     437

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                     437 	 application of genocide convention (sep. op. bhandari)

                        44. Setting aside the different conclusions as to whether genocidal
                     intent was proven in the Bosnia Judgment versus the present Judgment,
                     on the issue of how substantiality was assessed, I believe it would have
                     been entirely appropriate, given, inter alia, the size of the ethnic Croat
                     population of Vukovar, the Judgment’s recognition that during the siege
                     and capture of the city the attack was “directed at the then predominantly
                     Croat civilian population (many Serbs having fled the city before or after
                     the fighting broke out)” 43 — which, to my mind, rendered the city a
                     de facto ethnic Croat enclave — and finally its emblematic importance to
                     the ethnic Croat population within Croatia generally (for reasons of mili-
                     tary strategic importance as a key focal point in the expansive strategy of
                     “Greater Serbia”, as expounded supra), for the majority to have con-
                     ducted a specialized analysis of the attack on Vukovar. While I acknowl-
                     edge that the attack on Vukovar and its aftermath was considered as part
                     of an overarching mélange of factors when evaluating whether genocidal
                     intent existed with respect to the six geographic territories identified in
                     Croatia’s pleadings, in my respectful view such an analysis lacks clarity
                     and coherency and would have been improved by an explicit, separate
                     examination of the events at Vukovar.

                        45. As I have painstakingly underscored throughout this opinion, it is
                     my definitive conclusion that Croatia has failed to satisfy the minimum
                     standard of credible evidence required by this Court to allow me to be
                     “fully convinced” that a finding of genocidal intent vis‑à‑vis the protected
                     ethnic Croat group is the only reasonable inference to be drawn from the
                     evidentiary record proffered by the Applicant. Indeed, when pressed by a
                     Member of the Court during the oral hearing phase, counsel for Croatia
                     made the critical concession that the number of victims it was alleging
                     was difficult to ascertain with precision 44, which I find to epitomize the
                     many probative shortcomings of the Applicant’s cause of action. This
                     position having been reaffirmed, and again following the majority’s elec-
                     tion to take Croatia’s figures at their highest, I am somewhat puzzled by
                     the lack of analysis as to why the averred killing of upwards of 3,000 eth-

                       43   Judgment, para. 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 objectives ; it was also directed at the then predominantly Croat civilian
                            population (many Serbs having fled the city before or after the fighting broke out).”
                            (Emphasis added.)

                       44   CR 2014/12, pp. 11‑12 (Starmer).

                     438

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                     438 	 application of genocide convention (sep. op. bhandari)

                     nic Croats in Vukovar out of a pre‑war population of 21,500 would not
                     constitute sufficient physical destruction of the group pursuant to Arti-
                     cle II (a) of the Convention to satisfy the “quantitative element” as
                     adopted by the present Judgment. While there may be good reasons for
                     such a negative finding, the paucity of analysis conducted by the majority
                     to this end is discouraging.

                        46. In addition to my misgivings regarding the majority’s application
                     of the quantitative element regarding the number of Vukovar Croats
                     allegedly killed during and after the siege of that city, Croatia has pre-
                     sented a series of 17 contextual factors which, in its estimation,

                           “constitute a pattern of conduct from which the only reasonable infer-
                           ence to be drawn is that the Serb leaders were motivated by genocidal
                           intent . . . [and which], individually or taken together, could lead the
                           Court to conclude that there was a systematic policy of targeting
                           Croats with a view to their elimination from the regions concerned”
                           (Judgment, para. 408).
                     Consequently, “[a]ll these elements indicate, according to Croatia, the
                     existence of a pattern of conduct from which the only reasonable infer-
                     ence is an intent to destroy, in whole or in part, the Croat group” (ibid.,
                     para. 409). For ease of reference, these factors have been reproduced in
                     their totality at paragraph 408 of the present Judgment.
                       47. In the Judgment, the majority has determined
                           “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 [by
                           Croatia])” (ibid., para. 413).

                     Regrettably, the majority provides no ratio for this critical distinction,
                     and consequently excludes as “less important”, without any justification,
                     factors such as “the political doctrine of Serbian expansionism which cre-
                     ated the climate for genocidal policies aimed at destroying the Croat pop-
                     ulation living in areas earmarked to become part of ‘Greater Serbia’
                     [Croatia’s first factor]”, “the statements of public officials, including
                     demonization of Croats and propaganda on the part of State‑controlled
                     media [Croatia’s second factor]”, “the explicit recognition by the JNA
                     that paramilitary groups were engaging in genocidal acts [Croatia’s fifth
                     factor]” ; and “the fact that during the occupation, ethnic Croats were
                     required to identify themselves and their property as such by wearing

                     439

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                     439 	 application of genocide convention (sep. op. bhandari)

                     white ribbons tied around their arms and by affixing white cloths to their
                     homes [Croatia’s ninth factor]”, to name a few (see Judgment, para. 408).

                        48. While an exhaustive treatment of how these factors may be, con-
                     trary to the view of the majority, “more important” in deciphering geno-
                     cidal intent lies beyond the scope of the present opinion, I must admit I
                     find myself flummoxed by some of these exclusions. One need only look to
                     readily available historical examples to find scenarios where such factors
                     clearly and unequivocally played a major role in inciting and perpetu
                     ating incipient and ongoing genocides. To that end, I would briefly recall
                     the Nazi expansionist political doctrine of Lebensraum (which would
                     fall neatly under the rubric of Croatia’s first factor) and their ghetto
                     ization of marginalized groups through the forced wearing of religiously
                     denoted attire (e.g., armbands bearing the “Star of David”) for the Jews
                     of occupied Europe (for which one can find many commonalities in Croa-
                     tia’s ninth factor). To take a more recent historical example, I would note
                     the undeniable role played by popular media (especially radio) up to and
                     during the Rwandan genocide in the promotion of a demagogic “Hutu
                     Power” ideology that sought to vilify and ostracize the Tutsi ethnic
                     minority population through the ubiquitous use of the epithet of “inyenzi”
                     (cockroaches) and other comparable slurs (which aligns with Croatia’s
                     second factor). In each of these three examples, the averred acts are not,
                     strictly speaking, genocidal per se in accordance with Article II of the
                     Genocide Convention, but for the majority to rather summarily dismiss
                     their potency as precursors to or indicia of genocidal intent is, to my
                     mind, both puzzling and troubling. Finally, how “the explicit recognition
                     of genocidal intent of those carrying out the acts” (Croatia’s fifth factor)
                     does not figure prominently into the equation of genocidal intent is sim-
                     ply beyond me.

                              The Distinction between Criminal Intent and Motive

                        49. In the present Judgment “the Court notes that in the Mrkšić case,
                     the ICTY found that the attack on [Vukovar] constituted a response to
                     the declaration of independence by Croatia, and above all an assertion of
                     Serbia’s grip on the SFRY” (see para. 429). The Judgment then repro-
                     duces the following block quotation from Mrkšić in support of this con-
                     clusion :
                             “The declaration of 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

                     440

7 CIJ1077.indb 876                                                                                18/04/16 08:54

                     440 	 application of genocide convention (sep. op. bhandari)

                             scenario that the city and people of Vukovar and those living in close
                             proximity in the Vukovar municipality became a means of demonstrat‑
                             ing to the Croatian people, and those of other Yugoslav Republics, the
                             harmful consequences 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 Belgrade.” 45
                     As a brief aside, the quoted passage from Mrkšić, which forms part of the
                     uncontested evidentiary record in this case, is positively laden with explicit
                     references to the emblematic nature of the Vukovar Croats vis‑à‑vis the
                     remainder of the ethnic Croat population, thus only further weakening
                     the majority’s assertion that Croatia “has provided no information” as to
                     “the prominence of that part of the group” of the ethnic Croat popula-
                     tion that it contends was targeted for genocide 46.

                        50. However, returning to the point under consideration, the majority
                     relies on the quoted passage from Mrkšić to conclude that
                             “[i]t follows from the above, and from the fact that numerous Croats
                             of Vukovar were evacuated . . . that the existence of intent to physi-
                             cally destroy the Croat population is not the only reasonable inference
                             that can be drawn from the illegal attack on Vukovar” (Judgment,
                             para. 429).
                       In my view, this line of reasoning appears to conflate the distinct legal
                     concepts of motive and intent in finding that the “punishment” of the
                     Vukovar Croats could preclude a finding that they were targeted with
                     genocidal intent. To this end I would recall the language of the ICTY
                     Appeals Chamber in the Krnojelac Judgment, which recalled
                             “its case law in the Jelisić case which, with regard to the specific intent
                             required for the crime of genocide, set out ‘the necessity to distinguish
                             specific intent from motive. The personal motive of the perpetrator of
                             the crime of genocide may be, for example, to obtain personal eco-
                             nomic benefits, or political advantage or some form of power. The exist-
                             ence of a personal motive does not preclude the perpetrator from also
                             having the specific intent to commit genocide’.” 47

                        45 Mrkšić Trial Judgment, para. 471 ; emphasis added.
                        46 Judgment, para. 406. While the Judgment was referring more generally to the ethnic
                     Croat population in the six geographical areas of Croatia alleged by the Applicant, it
                     stands to reason that Vukovar, being not only situated within the areas contemplated but
                     constituting the gravamen of Croatia’s case, would constitute at least some evidence of the
                     prominence of at least a part of the targeted group in question.
                       47 Prosecutor v. Krnojelac, Appeals Judgment, 17 September 2003, para. 102 ; emphasis

                     added.

                     441

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                     441 	 application of genocide convention (sep. op. bhandari)

                     Similar language for this proposition can be found in a number of other
                     Judgments pronounced by the ICTY 48 and ICTR 49. In view of this dis-
                     tinction, I find the Judgment’s analysis of the motivation underlying the
                     attack on Vukovar to be problematic, as it fails to account for the possi-
                     bility, as clearly stipulated in the aforementioned authorities, that geno-
                     cidal intent may exist simultaneously with other, ulterior motives. In this
                     regard, I would recall the finding in Popović that the massacre at Sre-
                     brenica enclave was in part motivated by the strategic advantage of uni
                     ting a “Greater Serbia”. Never was it suggested that this tactical
                     motivation precluded the attack from possessing genocidal intent. Conse-
                     quently, I am unpersuaded by the Judgment’s dismissal of genocidal
                     intent vis‑à‑vis Vukovar based on the finding that the attack was ani-
                     mated by political and/or retributive motives, and respectfully but firmly
                     believe that the majority has committed a basic error of law in finding
                     that the existence of a punitive motive for the attack on Vukovar pre-
                     cludes genocidal intent as “the only reasonable inference that can be
                     drawn from the illegal attack” (Judgment, para. 429).

                               Discretion of the ICTY Prosecutor in Laying a Charge
                                                    of Genocide

                       51. I recall that in the Bosnia Judgment, the Court determined that :

                                “[A]s a general proposition the inclusion of charges in an indict-
                             ment cannot be given [evidentiary] weight. What may however be
                             significant is the decision of the Prosecutor, either initially or in an
                             amendment to an indictment, not to include or to exclude a charge
                             of genocide.” 50
                     No legal authority whatsoever is cited for the rationale underlying the dis-
                     parate probative weight that the Court decided to afford the ICTY Prose-
                     cutor’s decision to include or exclude a charge of genocide in an indictment,

                        48   See, e.g., Prosecutor v. Blaškić, Appeals Judgment, 29 July 2004, para. 694.
                                “Mens rea is the mental state or degree of fault which the accused held at the
                             relevant time. Motive is generally considered as that which causes a person to act.
                             The Appeals Chamber has held that, as far as criminal responsibility is concerned,
                             motive is generally irrelevant in international criminal law . . .”
                        49 See, e.g., Prosecutor v. Karera, Trial Judgment, 7 December 2007, para. 534. (“The

                     perpetrator need not be solely motivated by a genocidal intent and having a personal
                     motive will not preclude such a specific intent.”)
                        50   Bosnia Judgment, p. 132, para. 217.

                     442

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                     442 	 application of genocide convention (sep. op. bhandari)

                     nor does the Bosnia Judgment offer any reasoned explanation for this dis-
                     tinction. Indeed, in my respectful view such a distinction is unsustainable as
                     a matter of basic logical construction, and in contrast to the majority I find
                     myself drawn to the poignant submission of counsel for Croatia, who
                     argued during the oral hearing phase of this case that in accordance with
                     the prevailing rules of procedure obtaining at that tribunal,

                            “[T]he judicial arm of the ICTY will review each indictment, including
                            the charges that have been included, and has the power to dismiss any
                            count not supported by the evidence. But the judicial arm has no way
                            of reviewing the charges that have not been included, or the reasons
                            for non‑inclusion. It would therefore be illogical to afford greater
                            evidential weight to an unreviewable decision without reasons not to
                            include a charge, than the reviewable decision to include a charge.” 51

                     Moreover, I believe that Croatia has raised cogent arguments exposing
                     the various political, logistical and other constraints that may animate an
                     exercise of prosecutorial discretion not to lay a criminal charge, includ-
                     ing : (1) the availability (or lack thereof) of evidence at the onset of pro-
                     ceedings ; (2) the focus of a criminal prosecution on individual accused,
                     often in relation to very circumscribed crime sites, rather than the much
                     broader question of State responsibility for genocide encompassing large
                     geographical expanses ; (3) the lack of any obligation falling on the ICTY
                     Prosecutor to provide reasons for not laying a charge ; (4) the need to
                     selectively employ the finite resources of that Tribunal, especially in view
                     of the massive institutional constraints imposed by the United Nations
                     Security Council’s imposition of a “Completion Strategy” mandating the
                     completion of all the Tribunal’s work by fixed dates ; and (5) the fact that
                     whereas decisions to include a charge are subject to judicial review, deci-
                     sions not to include a charge are not 52.

                       52. In light of these trenchant insights, and in view of the Court’s pro-
                     nouncement in Bosnia that the lack of probative value for a decision to
                     lay a charge of genocide constitutes “a general proposition” rather than a
                     definite rule, in my respectful view the jurisprudence of this Court would
                     be fortified by a more expansive treatment of this subject. Alas, given the
                     opportunity to clarify the Court’s position concerning prosecutorial dis-
                     cretion in the present Judgment, the majority has apparently elected to
                     demur. Instead of a reasoned account that explains the distinction, the
                     Judgment makes the following pronouncement :

                       51   CR 2014/6, p. 39 (Starmer) ; emphasis in original.
                       52   Ibid., pp. 33‑42 (Starmer).

                     443

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                     443 	 application of genocide convention (sep. op. bhandari)

                              “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 . . . 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 significance and would be taken into
                           consideration. In the present case, there is no reason for the Court to
                           depart from that approach. The persons charged by the Prosecutor
                           included very senior members of the political and military leadership
                           of the principal participants in the hostilities which took place in Cro-
                           atia between 1991 and 1995. The charges brought against them
                           included, in many cases, allegations about the overall strategy adopted
                           by the leadership in question and about the existence of a joint crim-
                           inal enterprise. In that context, the fact that charges of genocide were
                           not included in any of the indictments is of greater significance than
                           would have been the case had the defendants occupied much lower
                           positions in the chain of command. In addition, the Court cannot fail
                           to note that the indictment in the case of the highest ranking defendant
                           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.” (Judgment, para. 187 ; emphasis added.)

                     Not only does this purported defence of the Bosnia distinction skirt the
                     central issue by failing to provide a single rationale as to why the decision
                     to include a charge of genocide in an indictment ought to be given differ-
                     ential weight than a decision to exclude such a charge, but the example of
                     the Milošević case relied upon by the Judgment to prove its point in fact
                     tends to defeat its own position. As that juxtaposition plainly illustrates,
                     if the decision not to charge Milošević with genocide in respect of crimes
                     committed in respect of Croatia is noteworthy, then surely the same must
                     be said of the corollary decision to charge him with genocide in respect of
                     crimes committed in Bosnia and Herzegovina. To my mind, these are two
                     sides of the same coin and the draft’s failure to make heads or tails of its
                     quizzical distinction, by invoking a litany of irrelevant considerations,
                     leaves me unmoved.

                        53. In sum, through its belaboured attempt to justify the distinction
                     regarding the differential probative value afforded the inclusion or exclu-
                     sion of charges of genocide in an indictment, which to this day fails to cite
                     a single germane legal authority and which poignantly avoids engaging
                     any of the Applicant Croatia’s arguments, the majority has not, to my
                     satisfaction, explained the logically and legally problematic distinction it
                     first iterated in the Bosnia Judgment and has now reiterated in the present
                     Judgment. I can only express my regret at this missed opportunity.

                     444

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                     444 	 application of genocide convention (sep. op. bhandari)

                                                    Conclusion

                        54. For the reasons I have explained at length throughout the course
                     of this opinion, while I share the majority’s conviction that the Applicant
                     Croatia has not discharged its evidentiary burden in relation to the sec-
                     ond operative clause of this Judgment, I have felt compelled to voice my
                     many (and at times strenuous) objections to the manner in which the
                     majority has treated the issue of genocidal intent as regards the claims put
                     forward by Croatia. Given my tepid support for the second operative
                     clause, which is based primarily on evidentiary concerns, there are many
                     aspects of the reasoning employed by the Judgment en route to the con-
                     clusion contained in that dispositive paragraph that I would distance
                     myself from as a jurist. Perhaps most disconcerting is that the foregoing
                     does not constitute an exhaustive exposition of my dissatisfaction with
                     the Judgment’s approach to genocidal dolus specialis, but merely a survey
                     of some of my more salient concerns.

                                                                (Signed) Dalveer Bhandari.

                     445

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