CROATIA vs. SERBIA CASE SUMMARYBy : Florence Renee R. Bacay

On 2 July 1999, the Government of the Republic of Croatia (Croatia) filed an Application against the Federal Republic of Yugoslavia (the FRY) in respect of a dispute concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention or the Convention).

Croatia were claiming that the Federal Republic of Yugoslavia has breached its legal obligations toward the people and Republic of Croatia under Articles I, II (a), II (b), II (c), II (d), III (a), III (b), III (c), III (d), III (e), IV and V of the Genocide Convention; that the Federal Republic of Yugoslavia has an obligation to pay to the Republic of Croatia, in its own right and as parens patriae for its citizens, reparations for damages to persons and property, as well as to the Croatian economy and environment caused by the violations of international law in a sum to be determined by the Court; and, that the Respondent, the Federal Republic of Yugoslavia, is responsible for violations of the Convention on the Prevention and Punishment of the Crime of Genocide.

The Republic of Serbia, on the other hand, counters that the requests in paragraphs 1 (a), 1 (b), 1 (c), 1 (d), 2 (a), 2 (b), 2 (c) and 2 (d) of the Submissions of the Republic of Croatia as far as they relate to acts and omissions, whatever their legal qualification, that took place before 27 April 1992, i.e., prior to the date when Serbia came into existence as a State, or alternatively,before 8 October 1991, when neither the Republic of Croatia nor the Republic ofSerbia existed as independent States, are inadmissible; that the requests in paragraphs 1 (a), 1 (b), 1 (c), 1 (d), 2 (a), 2 (b), 2 (c) and 2 (d), of the Submissions of the Republic of Croatia relating to the alleged violations of the obligations under the Convention on the Prevention and Punishment of the Crime of Genocide after 27 April 1992 (alternatively, 8 October 1991) be rejected as lacking any basis either in law or in fact; that the Republic of Croatia has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by committing, during and after the operation Storm in August 1995, the following acts with intent to destroy as such the part of the Serb national and ethnical group living in the Krajina Region (UN Protected Areas North and South) in Croatia.

Croatia recognizes that the actori incumbit probatio principle should generally apply, but considers that in the present case, Serbia should co-operate in putting before the Court all relevant evidence in its possession concerning the facts relied on in support of the principal claim. The Respondent is best placed, in Croatias view, to provide explanations of acts which are claimed to have taken place in a territory over which Serbia exercised exclusive control. Moreover, Serbia is said to have failed to offer explanations or produce evidence in rebuttal of the Applicants claims. Croatia considers that the Court should draw adverse inferences from this in respect of Serbia.

For Serbia, Croatia is seeking, in this way, to reverse the burden of proof. It maintains that one party cannot be forced to give an explanation in response to the claims of the other party. It further contends that it has adequately rebutted Croatias claims by giving explanations and producing reliable evidence

The determination of the burden of proof is in reality dependent on the subject-matter and the nature of [the] dispute brought before the Court; it varies according to the type of facts which it is necessary to establish for the purposes of the decision of the case.

The Court will seek first to determine whether the alleged acts have been established and, if so, whether they fall into the categories of acts listed in Article II of the Convention; and then, should that be established, whether those physical acts were committed with intent to destroy the protected group, in whole or in part.

Croatia has failed to substantiate its allegation that genocide was committed. Accordingly, no issue of responsibility under the Convention for the commission of genocide can arise in the present case. Nor can there be any question of responsibility for a failure to prevent genocide, a failure to punish genocide, or complicity in genocide. In view of the fact that dolus specialis has not been established by Croatia, its claims of conspiracy to commit genocide, direct and public incitement to commit genocide, and attempt to commit genocide also necessarily fail.

The Court concludes from the foregoing that the existence of the dolus specialis has not been established. Accordingly, the Court finds that it has not been proved that genocide was committed during and after Operation Storm against the Serb population of Croatia.