Caroline Fournet

The Actus Reus of Genocide in the Croatia v. Serbia Judgment: Between Legality and Acceptability

The long-awaited verdict of the International Court of Justice in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case between Croatia and Serbia brought to an end the speculations as to whether or not a finding of genocide would be reached. After lengthy considerations on the genocidal actus reus , the Court dismissed all the claims of genocide, based on the lack of genocidal intent. If this conclusion is perfectly in line with established law and case law, its wider readability and acceptability outside of the legal microcosm is perhaps doubtful. How can a judgment which recognizes that acts falling within the list of proscribed genocidal acts have been committed but which then refutes their qualification as genocidal due to a lack of specific intent be explicable to those who lost their loved ones in what they feel was an enterprise of destruction?

The universality of the prohibition of the crime of genocide, 1948-2008

The year 2008 marks the 60th anniversary of the adoption, under the auspices of the United Nations, of the Convention for the Prevention and Punishment of the Crime of Genocide, a legal instrument generally acknowledged as providing for the authoritative definition of genocide. Yet, if this Convention undoubtedly carved into positive international law a widely accepted definition of the crime, it is nonetheless remarkable that the prohibition of genocide also finds its origins in the obscure concept of peremptory norms of international law, otherwise referred to as jus cogens. The present article thus proposes to assess this apparent fragmentation of sources and ultimately attempts to evaluate the impact, value, and significance of the Genocide Convention.

Forensic sciences (anthropology/archaeology/pathology) and international criminal justice

In her seminal Fact-Finding without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions [Cambridge University Press, 2010], Nancy Combs shed light on the serious impediments faced by international criminal justice in establishing facts in order to convincingly assess individual criminal responsibility for the most atrocious deeds. Gathering reliable evidence was a challenge for the ad hoc International Criminal Tribunals for Rwanda [ICTR] and for the Former Yugoslavia [ICTY] and verymuch remains a live issue at the International Criminal Court [ICC]. One element however seems to set the ICTY experience apart, namely, its increasing reliance on forensic evidence. Following thewarwhich devastated the Former Yugoslavia, one of the reactions of the international community was to launch – for the first time – a scientific search for, and subsequent identification of, the dead victims.With thework of the BosnianMissing Persons Institute and that of the International Commission on Missing Persons [ICMP], 6,959 out of the 8,372 Srebrenica victims [1] have now been found and identified [2]. The pioneering forensic work conducted in Bosnia-Herzegovina does not serve an exclusively humanitarian role and has been pivotal in revealing the criminal modus operandi of the perpetrators and in establishing criminal intent – including genocidal intent – before the ICTY. In itsfirst conviction for genocide against General RadislavKrstić, the ICTY Trial Chamber expressly recorded the scientific analysis of the evidentiary elements related to the executions carried out in Srebrenica to find that ‘[t]he forensic evidence presented by the Prosecution provides corroboration of survivor testimony that, following the take-over of Srebrenica in July 1995, thousands of Bosnian Muslim men from Srebrenica were killed in careful and methodical mass executions’ [3]. The medico-legal analyses resulting from the exhumation of the mass graves were also instrumental in determining that the victims were civilianmilitary-agedmen [4], a decisive element in this case for the qualification of genocide, the men of Srebrenica having been targeted to ensure the destruction of the group as a whole [5]. More recently, forensic evidence has assisted the Trial Chamber in the Karadzić case to determine the number of victims, their gender, their civilian character as well as the cause and time of their deaths. Likewise, in the ongoing case against RatkoMladić, exhumations and forensic evidence have facilitated the Prosecution’s demonstration of the civilian character of the victims found in the mass graves, notably at Tomašica, none of whom were wearing military clothing [6]. This is not to say that forensic evidencewill give all the answers, if only because forensic search itself is dependent on a series of factors, such as weather conditions, staff training, financial resources, not to mention finding the corpses of the victims. And even in optimal conditions (if such conditions are ever met), determining the exact number of victims or the place of death might be problematic, notably when secondary

‘We Demand Dignity for the Victims’ – Reflections on the Legal Qualification of the Indecent Disposal of Corpses

‘We demand dignity for the victims’. Such was the pledge of the Dutch Minister of Foreign Affairs following the crash of Malaysia Airlines flight mh17 in rebel-held territory in eastern Ukraine and the looting of the corpses of the 298 victims. Although not an isolated instance, the indecent disposal of the corpses of the victims seems to have escaped legal scrutiny. Drawing from this and other case studies, this article addresses the legal qualification of acts of mistreatment perpetrated against the corpses of victims of international crimes. It analyses all relevant dispositions pertaining to international humanitarian law, international criminal law and the law of trafficking in human beings. While these provisions fail to legally characterize such acts, the judiciary however tends to recognize their criminality; a recognition which, in the authors’ views, could make its way into the text of international (criminal) law.

When the child surpasses the father – admissible defences in International Criminal Law

Due to the heinous nature of international crimes, admissible defences in the context of international criminal justice understandably constitute an issue surrounded with controversy. Yet, while International Criminal Law precludes the use of a series of defences, it also admits that certain grounds may exclude individual criminal responsibility or mitigate punishment even in the case of the most serious international crimes. The present study thus proposes to analyse the permissibility of these defences and the availability of such grounds for excluding responsibility by drawing a comparison between Public International Law and International Criminal Law and by highlighting the differences and discrepancies between the two systems. Ultimately, this analysis aims at demonstrating that International Criminal Law, one of Public International Laws children, has now surpassed its parent to become a more sophisticated and a fairer legal and judicial system, for both the defendants and the victims.