Rape and the notion of ‘serious harm’ in the ICJ’s decision Croatia v. Serbia: a step back or a step forward?

On 3 February 2015, the International Court of Justice (ICJ) released its judgment on the case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide, which saw as contending parties the states of Croatia and Serbia. The outcome of the decision seems to have come as no surprise, as the Court found that none of the two sides are responsible for any Convention violations. Nonetheless, some have criticised it for having missed the opportunity to deal with some important issues, including state succession in matters of international responsibility, especially in light of the particular values protected by the Convention. This post examines the approach followed by the Court in relation to rape and sexual violence as acts of genocide under article II (b) of the Convention.

Generally, the Court has kept itself in line with what it held in its 2007 decision in the case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). However, it seems that the Court has departed from this precedent in relation to its interpretation of what constitutes ‘serious bodily or mental harm to members of the group’ under article II (b) of the Genocide Convention. Indeed, in 2007 the Court noted that ‘rapes and sexual violence could constitute acts of genocide, if [only] accompanied by a specific intent to destroy the protected group’. [1] This followed the historical precedent set out in 1998 by the International Criminal Tribunal for Rwanda (ICTR) in Akayesu, where it established that ‘rape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims and are even, according to the Chamber, one of the worst ways of inflicting harm on the victim as he or she suffers both bodily and mental harm’.[2] In particular, it was noted that ‘[s]exual violence was a step in the process of destruction of the tutsi (sic!) group – destruction of the spirit, of the will to live, and of life itself.’[3]

This inclusion of rape and sexual violence in the genocidal acts referred to by article II (b) was re-affirmed in subsequent case law and in the ICC Elements of Crimes.[4] Also, the Prosecution did not need to prove any kind of cause-effect relationship between the acts of violence and the destruction of the group. Such an interpretation enjoyed the support of most of the literature of that time[5] and was the argument Croatia relied on in the present case.[6]

Nevertheless, the ICJ upheld Serbia’s arguments when, relying inter alia on the Commentary of the 1996 International Law Commission’s (ILC) Draft Articles,[7] concluded that ‘the serious bodily or mental harm within the meaning of Article II (b) of the Convention must be such as to contribute to the physical or biological destruction of the group, in whole or in part’. [8] However, according to the ILC, ‘[t]he bodily or the mental harm inflicted on members of a group must be of such a serious nature as to threaten [emphasis added] its destruction in whole or in part’. [9] In other words, the Commission considered that the Prosecution had no duty to show the existence of a result of any kind.

Thus, in the case at issue, it seems likely that the Court was attempting to show its deference to the ad hoc Tribunals, by following the recent changes in their case law.[10] In particular, the Court cites the Krajišnik case, decided by Trial Chamber I of the International Criminal Tribunal for the Former Yugoslavia (ICTY), which established that a serious harm must be such ‘as to contribute, or tend to contribute [emphasis added], to the destruction of the group or part thereof’.[11] While, according to some, such an approach was an ‘excessively narrow interpretation’, it ‘finds some support in the travaux préparatoires’ of the Convention. [12] In any case, ‘[h]arm amounting to “a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life” has been said to be sufficient for this purpose.’[13] Yet, while, borrowing the words of ICTY Trial Chamber II in Tolimir, ‘it is necessary pursuant to Article 4(2)(b) to prove a result,’ [14] the ‘tend to contribute’ option has disappeared in the conclusions reached by the ICJ. Therefore, the Court seems to have unjustifiably adopted an even narrower approach to that previously adopted by the ICTY in this respect.

In addition to this, when assessing the existence of the actus reus of genocide according to article II (b), the Court has regrettably not shown how rape and sexual violence, as well as the other acts of torture, and cruel and inhuman treatment considered altogether, have contributed to the destruction of the group, or part of it. [15] Rather, it has limited itself to ascertain that certain acts were in fact committed. Furthermore, the very fact that rape and sexual violence are taken into consideration along with other acts- as it has also been the case in 2007- implies some sort of systematicity of such acts, and this appears to generate quite a significant confusion that could have been avoided, for instance, by taking into account the ICC Elements of Crimes.

First, footnote 3 to the first element enlisted in relation to article 6 (b) of the ICC Statute, which in turn uses the very same language of article II (b) of the Genocide Convention, reads as follows: ‘[t]his conduct may [emphasis added] include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment.’ This means that rape is not per se a genocidal conduct. In fact, according to the fourth element concerning article 6 (b), in order for such a conduct to be included among those acts which cause serious bodily of mental harm to a member of the targeted group, it must be shown that ‘[t]he conduct took place in the context of a manifest pattern of similar conduct directed against that group or [emphasis added] was conduct that could itself effect such destruction.’

It follows that the Court could have either established the existence of such a pattern, without having to argue in favour of this ‘new’ interpretation of ‘serious harm’ and the destruction element that it supposedly contains, or focus on and elaborate this latter aspect. The half-way approach that the Court has chosen to follow instead seems to weaken its reasoning and maintains a high degree of uncertainty around the elements constituting the actus reus of what has been defined as ‘the crime of crimes’.[16] Moreover, through the introduction of the expression ‘as to contribute to the physical or biological destruction of the group, in whole or in part’, which has narrowed down the interpretation given by the ad hoc tribunals to what constitutes ‘serious harm’, the Court has also diminished, at least in theory, the standing of rape as ‘one of the worst ways of inflicting harm on the victim as he or she suffers both bodily and mental harm’.[17]International_Court_of_Justice

[1] Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia And Herzegovina v. Serbia And Montenegro), 26 February 2007, ICJ Judgment, General List 91, at 300.

[2] The Prosecutor v. Akayesu (case No. ICTR- 96-4-T), Trial Chamber Judgment, 2 September 1998, at 731 (as quoted in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia And Herzegovina v. Serbia And Montenegro), 26 February 2007, ICJ Judgment, General List 91, at 300). See also The Prosecutor v. Stakić (Case No. IT-97-24-T), Trial Chamber Judgment, 31 July 2003, at 516.

[3] Prosecutor v. Akayesu (Case No. ICTR-96-4-T), Judgment, 2 September 1999, para. 732.

[4] The Prosecutor v. Kayshema and Ruzindana (Case No. ICTR-95-1-T), Trial Chamber II, Judgment, 21 May 1999, at 108-109; The Prosecutor v. Krstić (Case No. IT-98-33), Trial Chamber, Judgment, 2 August 2001, at 513; The Prosecutor v. Bagilishema, (Case No. ICTR-95-1A-T), Trial Chamber, Judgment, 7 June 2001, at 59. See also footnotes to the Elements of Crime to Article 6(b) of the ICC Statute.

[5] See, e.g., Florian Jessberger, ‘The Definition and the Elements of the Crime of Genocide’ in Paola Gaeta (ed.), The UN Genocide Convention. A Commentary (OUP 2009) 87, 99; William A. Schabas, Genocide in International Law (2nd ed Cambridge University Press 2009) 188.

[6] Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), 3 February 2015, ICJ Judgment < http://www.icj-cij.org/docket/files/118/18422.pdf> accessed 5 March 2015, at 157.

[7] ILC, Report on the work of its Forty-eighth Session, Yearbook of the ILC, 1996, Vol. II, Part Two, p. 46, at 14.

[8] Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), 3 February 2015, ICJ Judgment < http://www.icj-cij.org/docket/files/118/18422.pdf> accessed 5 March 2015, at 157. cf The Prosecutor v. MomčIlo KrajišNik (Case No. IT-00-39-T), ICJ Judgment of 27 September 2006, at 862.

[9] ILC, Report on the work of its Forty-eighth Session, Yearbook of the ILC, 1996, Vol. II, Part Two, p. 46, at 14.

[10] Prosecutor v. Momčilo Krajišnik (Case No. IT-00-39-T), Judgment, Trial Chamber I, 27 September 2006, at 862; See also The Prosecutor v. Athanase Seromba (Case No. ICTR-2001-66-A), Appeals Chamber, Judgment, 12 March 2008, at 46.

[11] Prosecutor v. Momčilo Krajišnik (Case No. IT-00-39-T), Judgment, Trial Chamber I, 27 September 2006, at 862.

[12] Lars Berster, ‘Article II’ in Christian J Tams, Lars Berster and Björn Schiffbauer (eds), Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (C.H. Beck, Hart, Nomos 2014) 79, 118-119.

[13] The Prosecutor v. Momčilo Krajišnik (Case No. IT-00-39-T), Judgment, Trial Chamber I, 27 September 2006, 862. The Chamber relied on what had been established in The Prosecutor v. Krstić (Case No. IT-98-33), Trial Chamber, Judgment, 2 August 2001, para. 513. See also Prosecutor v. Zdravko Tolimir (Case No. ICTY IT-05-88/2-T), Trial Chamber II, Judgment, 12 December 2012, 755.

[14] The Prosecutor v. Zdravko Tolimir (Case No. ICTY IT-05-88/2-T), Trial Chamber II, Judgment, 12 December 2012, 755.

[15] Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), 3 February 2015, ICJ Judgment < http://www.icj-cij.org/docket/files/118/18422.pdf> accessed 5 March 2015, at 360.

[16] The Prosecutor v. Kambanda (Case no. ICTR 97-23-S), Trial Chamber, Judgment and Sentence, 4 September 1998, at 16.

[17] The Prosecutor v. Akayesu (case No. ICTR- 96-4-T), Trial Chamber Judgment, 2 September 1998, at 731 (as quoted in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia And Herzegovina v. Serbia And Montenegro), 26 February 2007, ICJ Judgment, General List 91, at 300). See also The Prosecutor v. Stakić (Case No. IT-97-24-T), Trial Chamber Judgment, 31 July 2003, at 516.

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