Some New Evidence on the ICJ's Treatment of Evidence: The Second Genocide Case

In the decision on the second Genocide case (Croatia v. Serbia) the ICJ did not deviate from its rulingof2007(Bosnia-Herzegovina v. SerbiaandMontenegro) inmatters of evidence.Acomparison between the two cases nevertheless shows subtle but interesting nuances.Whereas in the first Genocide case the Court was confronted with a ICTY finding that a genocide had indeed been committed in Srebrenica in July 1995, in the present case the ICTY Prosecutor had not even indicted any Serbian or Croatian organ of such a crime. The ICJ was able to find the actus reus of genocide in many instances, both on the part of Serbia and Croatia, but it found that neither party had been able to prove the existence of the mens rea, either by relying on a pattern of conduct, or even by relying on the transcript of a governmental meeting. This throws a disquieting light on the actual capacity of the Court to deal with claims of commission of genocide, as distinguished from claims of lack of prevention or repression.