It its judgment, the ICJ rejected (by 15 votes to 2) Croatia's claim and Serbia's counter-claim unanimously (by 17 votes to 0). The Court also rejected (by 11 votes to 6), the second jurisdictional objection raised by Serbia and to follow on that, found that its jurisdiction to entertain Croatia's claims extends prior to 27 April 1992.
In the proceedings under review, Croatia contended that Serbia was responsible for breaches of the Genocide Convention committed in Croatia between 1991 and 1995. In its counter-claim, Serbia contended that Croatia was itself responsible for breaches of the Convention committed in 1995 in the “Republika Srpska Krajina.”
On July 2, 1999, Croatia filed an application instituting proceedings against the Federal Republic of Yugoslavia in respect of a dispute concerning alleged violations of the Genocide Convention committed between 1991 and 1995. On 18 November 2008, the Court delivered a Judgment partially rejecting the preliminary objections raised by the respondent (which had then become Serbia). Serbia subsequently filed a counter-claim.
The Hague-based ICJ in its examination first looked at Croatia's claim against Serbia and found that the actus reus (or: “material acts perpetrated”) of genocide has been established. But the Court also found that the intentional element of genocide was lacking. The absence of intent rejects Croatia's claim in its entirety.
The Court then examined Serbia's counter-claim against Croatia and found that the actus reus of genocide was established. But again the intention element was lacking, therefore like Croatia's claim, the Court rejected Serbia's counter-claim in its entirety.
According to the Convention on the Prevention and Punishment of the Crime of Genocide , genocide contains two constituent elements: the physical element or what the Court calls, actus reus, and the mental element. The “intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such” is the essential characteristic of genocide, which it distinguishes from other crimes. It is regarded as a dolus specialis, meaning specific intent, which must be present to establish genocide.
In its decision, the Court noted a raft of crimes committed during the time period in question, included widespread attacks against civilian populations and infrastructure, and reiterated its request to both parties to continue their cooperation with a view to settling as soon as possible the issue of the fate of missing persons. The ICJ also encouraged the parties to continue their cooperation with a view to offering appropriate reparation to the victims of such violations, thus consolidating peace and stability in the region.
Established in 1945 under the UN Charter, the ICJ – widely referred to as the 'World Court' – settles legal disputes between States and gives advisory opinions on legal questions that have been referred to it by authorized UN organs or specialized agencies. ICJ Judgments are final and binding on the Parties involved in the legal disputes submitted to the Court.