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