Genocide in Practice: What the Courts Have Made of the Convention

And it violated the obligation TO PUNISH, including by failing to co-operate fully with the International Criminal Tribunal for the former Yugoslavia over the handing over for trial of GENERAL RATKO MLADIC, which the Court held to be a violation of ARTICLE VI.

The remedy is worth noticing. Financial compensation for the failure to prevent was held NOT to be the appropriate form of reparation, since it had not been shown that the genocide at Srebrenica would in fact have been averted if Serbia had attempted to prevent it. The most appropriate satisfaction was a DECLARATION in the operative clause; and for the failure to punish, a declaration that Serbia must transfer the accused to the Tribunal and co-operate fully with it.

The rule about intent, and why claims fail

In Croatia v. Serbia, judgment of 3 February 2015, the Court set out the analysis a claimant must satisfy, and a candidate should be able to give it in five steps.

One, two constituent elements. The PHYSICAL element, the acts set out in article II; and the MENTAL element, the intent to destroy in whole or in part a national, ethnical, racial or religious group as such.

Two, the mental element is the essential characteristic. It is what "distinguishes genocide from other serious crimes", and it is a SPECIFIC INTENT, DOLUS SPECIALIS, which must be present IN ADDITION TO the intent required for each of the individual acts.

Three, what "destroy" means. The aim must be the PHYSICAL OR BIOLOGICAL DESTRUCTION of the protected group, OR OF A SUBSTANTIAL PART of that group.

Four, how the intent is proved. Evidence is sought first in the STATE'S POLICY, the Court accepting that such intent WILL SELDOM BE EXPRESSLY STATED; it may also be INFERRED FROM A PATTERN OF CONDUCT, but only WHEN THIS INTENT IS THE ONLY INFERENCE THAT CAN REASONABLY BE DRAWN from the acts in question.

Five, the application, which is the lesson. The Court found that the JNA and Serb forces had committed killings of, and caused serious bodily or mental harm to, members of the Croat national or ethnic group in Eastern Slavonia, Western Slavonia, Banovina, Kordun, Lika and Dalmatia, so THE ACTUS REUS UNDER ARTICLE II(a) AND (b) WAS ESTABLISHED. But the aim of the crimes appeared to have been the FORCED DISPLACEMENT of the majority of the Croat population in those regions, NOT its physical or biological destruction. The intent therefore was not the only reasonable inference, and the claim was dismissed IN ITS ENTIRETY, without any need to decide attribution or succession.

The counter-claim went the same way. Serbia's counter-claim was held admissible, and the Court found that during and after OPERATION STORM in August 1995 Croatian forces had committed acts within article II(a) and (b) against Serbs; but the intent to destroy the national or ethnical group of Croatian Serbs was likewise not established.

So the practical rule is this. Ethnic cleansing, in the sense of driving a population out, is not genocide unless the aim is to DESTROY the group; and where displacement is a reasonable explanation of a pattern of conduct, the inference of genocidal intent is not the ONLY reasonable one and the claim fails.

The two pending cases

The first is The Gambia v. Myanmar, application filed 11 NOVEMBER 2019. The Court indicated PROVISIONAL MEASURES by an Order of 23 JANUARY 2020, to preserve rights claimed by The Gambia for the protection of the Rohingya, and paragraph 86(4) of that Order requires Myanmar to report periodically; the twelfth such report is dated 21 November 2025. By its judgment of 22 JULY 2022 the Court found that it HAS JURISDICTION on the basis of article IX to entertain the Application and that the Application IS ADMISSIBLE, Judge Xue dissenting. ELEVEN STATES ARE INTERVENING, so the case is styled "The Gambia v. Myanmar: 11 States intervening". MERITS HEARINGS WERE HELD FROM 12 TO 29 JANUARY 2026, and as at 23 August 2026 no merits judgment has been delivered.

Why the case matters even before judgment. The Gambia is not a neighbour of Myanmar and has no nationals among the Rohingya. That it can sue at all rests on the character of the obligations under the Convention as owed to all the parties collectively, and the 2022 judgment on admissibility is the modern authority for that proposition.

The second is Ukraine v. Russian Federation, styled "ALLEGATIONS of Genocide under the Convention", which states the unusual claim: that Russia had falsely asserted that genocide was being committed as a justification for the use of force, and that Ukraine is entitled to a declaration that it has committed none. The Court indicated PROVISIONAL MEASURES by an Order of 16 MARCH 2022. By its judgment of 2 FEBRUARY 2024 it found that it had jurisdiction to entertain ONE of Ukraine's claims and that that claim was admissible. Many States have intervened under ARTICLE 63 of the Statute of the Court, and after the 2024 judgment the Registrar invited them to file new or maintained declarations for the merits phase by 2 August 2024; Austria, Czechia, Finland and Slovenia jointly, Bulgaria, Estonia, Germany, Poland, Spain and Australia among others did so.

Why that case matters here. It uses article IX in the opposite direction: not to establish that genocide occurred, but to establish that it did not, so that an allegation of genocide cannot be used as a pretext.

Article VI and the tribunals

Article VI provides for trial by a competent tribunal of the territorial State "or by such INTERNATIONAL PENAL TRIBUNAL as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction". For forty-five years there was no such tribunal.

The International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda were established by the SECURITY COUNCIL in the 1990s, which is a route article VI does not describe: their jurisdiction rests on Chapter VII of the Charter and on the Council's binding decisions, not on the acceptance of the parties.

And the Convention supplies the link. In Bosnia and Herzegovina v. Serbia and Montenegro the Court held that Serbia's failure to co-operate fully with the International Criminal Tribunal for the former Yugoslavia over the handing over of General Mladic was a violation of ARTICLE VI. So a State's duty to punish under the Convention is discharged, in part, by co-operating with an international penal tribunal, and a failure to do so is a treaty breach the Court can declare.

A worked example

State A drives an ethnic minority out of a border province, killing many and destroying their villages, and says publicly that the province must be cleared. State B, a party to the Convention with no connection to the events, wishes to bring proceedings.

Jurisdiction. Article IX, which requires no separate consent from State A and covers disputes relating to the responsibility of a State for genocide.

Standing. The Gambia v. Myanmar is the modern authority: a party with no nationals affected and no proximity was held entitled to bring the Application, and the Application was held admissible by the judgment of 22 July 2022.

Provisional measures. Article 41 of the Statute, as in the Orders of 23 January 2020 and 16 March 2022, with a reporting obligation of the kind imposed by paragraph 86(4) of the 2020 Order.

Actus reus. Killing members of the group and causing serious bodily or mental harm are article II(a) and (b), and on Croatia v. Serbia they will be found where the evidence supports them.

Intent, which is where the case will be decided. The public statement that the province must be CLEARED points to displacement, not destruction. On Croatia v. Serbia, where forced displacement is a reasonable explanation of the pattern of conduct, genocidal intent is not the ONLY reasonable inference and the claim fails.

What would change that. Evidence of a State policy of destruction; or acts which displacement cannot explain, such as the systematic killing of the men of military age, which is what the Court found at Srebrenica.

And even if attribution fails. Bosnia v. Serbia shows a second route: a State which was aware, or should normally have been aware, of the serious danger of genocide and did not employ all means reasonably available to prevent it is in breach of article I, whether or not the acts are attributable to it.

Distinctions

What it does NOT mean

It does not mean ethnic cleansing is genocide. Croatia v. Serbia: where the aim appears to have been forced displacement rather than physical or biological destruction, the intent is not the only reasonable inference and the claim fails.

It does not mean a State is responsible only if the acts are attributable to it. Bosnia v. Serbia found a breach of the duty to prevent although the acts were not attributable.

It does not mean a breach of the duty to prevent produces compensation. The Court held financial compensation inappropriate because it had not been shown that the genocide would in fact have been averted.

It does not mean only an injured State may sue. The Gambia v. Myanmar was held admissible although The Gambia had no nationals among the Rohingya.

And it does not mean the Gambia case has been decided. Merits hearings concluded on 29 January 2026 and the judgment is awaited.

Quick revision

Article IX is a compromissory clause covering disputes on interpretation, application or fulfilment, including State responsibility for genocide.

Bosnia v. Serbia 2007: res judicata protects the 1996 jurisdiction judgment; atrocities throughout Bosnia lacked the specific intent; SREBRENICA IN JULY 1995 WAS GENOCIDE, committed with intent to destroy in part the Bosnian Muslims of that area, the decision to kill the adult male population taken by some members of the VRS Main Staff; acts not attributable to Serbia; SERBIA IN BREACH OF THE DUTY TO PREVENT, which binds a State aware or which should normally have been aware of the serious danger to employ ALL MEANS REASONABLY AVAILABLE; and in breach of the duty to punish, article VI, by not co-operating over General Mladic; satisfaction by declaration, no compensation because it was not shown the genocide would have been averted.

Croatia v. Serbia 2015: two elements, physical and mental; the mental element is the essential characteristic and is a specific intent, dolus specialis, additional to the intent for each act; the aim must be physical or biological destruction of the group or a substantial part; intent sought first in State policy, seldom expressly stated, and otherwise inferred from a pattern of conduct only where it is THE ONLY REASONABLE INFERENCE; actus reus established under article II(a) and (b) both on the claim and on the counter-claim; intent established on neither; both dismissed.

The Gambia v. Myanmar: filed 11 November 2019; provisional measures 23 January 2020 with periodic reports under paragraph 86(4); jurisdiction and admissibility 22 July 2022, Judge Xue dissenting; eleven States intervening; merits heard 12 to 29 January 2026, judgment awaited.

Ukraine v. Russian Federation: "Allegations of Genocide"; provisional measures 16 March 2022; jurisdiction over one claim and admissibility 2 February 2024; many interveners under article 63 of the Statute.

Test yourself

1. What makes the Convention litigable at the International Court of Justice? Article IX, a compromissory clause under which disputes relating to the interpretation, application or fulfilment of the Convention, including those relating to the responsibility of a State for genocide, are submitted to the Court at the request of any party to the dispute, without any separate consent.

2. What did the Court decide about Srebrenica, and about Serbia? That the killings at Srebrenica in July 1995 were committed with the specific intent to destroy in part the group of Bosnian Muslims in that area and were genocide; that the acts were not attributable to Serbia; but that Serbia violated its obligation under article I to prevent, and its obligation to punish under article VI.

3. State the content of the duty to prevent. That a State which is aware, or should normally have been aware, of the serious danger that acts of genocide would be committed must employ all means reasonably available to it to prevent genocide, within the limits permitted by international law.

4. Why did Croatia's claim fail although the acts were proved? Because the specific intent was not established: the aim of the crimes appeared to have been the forced displacement of the majority of the Croat population rather than its physical or biological destruction, so genocidal intent was not the only reasonable inference from the pattern of conduct.

5. How is genocidal intent proved? First from the State's policy, the Court accepting that such intent will seldom be expressly stated; otherwise by inference from a pattern of conduct, but only where that intent is the ONLY inference that can reasonably be drawn from the acts.

6. What is the significance of The Gambia v. Myanmar for standing? That a party to the Convention with no nationals among the victims and no proximity to the events was held entitled to bring the Application, which the Court found admissible by its judgment of 22 July 2022.

7. What is the present position in the two pending cases? In The Gambia v. Myanmar, merits hearings were held from 12 to 29 January 2026 with eleven States intervening and the judgment is awaited. In Ukraine v. Russian Federation, the Court held on 2 February 2024 that it had jurisdiction over one of Ukraine's claims and that it was admissible, and the merits are proceeding with numerous interveners under article 63 of the Statute.