03 October 2015


The taut 'Proving Genocide: The High Standards of the International Court of Justice' by Peter Tzeng in (2015) 40(2) Yale Journal of International Law comments
 On February 3, 2015, the International Court of Justice rendered a final judgment in Croatian Genocide. As in Bosnian Genocide, the Court failed to justify the high standards of proof it applied to proving the dolus specialis of genocide.
Tzeng concludes
The Court in Bosnian Genocide and Croatian Genocide, however, appears to have applied the high standard without the moderating principle. Although it is widely recognized that proof of dolus specialis, a mental state, is often in the exclusive control of the perpetrator, the Court in both Bosnian Genocide and Croatian Genocide apparently did not allow more liberal recourse to inferences of fact and circumstantial evidence, as it strictly applied the "only reasonable inference" test.
Defining standards of proof is not a trivial exercise. The Court's dispositions in Bosnian Genocide and Croatian Genocide arguably turned on the standards of proof, which exculpated the states in question from liability for unforgivable genocidal acts. This is not to say that the Court's standards were too high; that debate has been ongoing for years. But if the Court wishes to follow Judge Higgins's recommendation to establish consistent standards of proof, then at the very least the Court must accompany those standards with well-reasoned justifications. Otherwise, we are left wondering whether consistent standards are any better than inconsistent ones