Author analyses jurisprudence of ICTY, ICTR and ICJ, about destruction of a protective group as a vital element of a Crime of Genocide. He is of opinion that it is clear that the jurisprudence of ICTY and ICTR as regards the destruction of protected group is incoherent to the level of contradiction. Such a legal situation is not surprising because both the tribunals essentially acted as auxiliary organs of Security Council. Consequently, in their traditional function, both tribunal relied on the Statutes and not on Genocide Convention. It wandered between objective and subjective criteria for the identification of protected groups, and occasionally applied them simultaneously as objective/subjective criteria. For its part jurisprudence of ICJ in that regard is characterized by dichotomy between general dictum in Bosnia case, based on positive definition on protected group and its specific determination in Bosnia and Croatia case which went well beyond the scope of the general dictum. Regarding the destruction of a protected group the jurisprudence of the ICJ is essentially different in Bosnia case, on one hand, and in Croatia case on the other. In the Bosnia case, the ICJ relied on the ICTY judgments in Blagojević and Krstić cases, accepted the concept of the destruction of the protected group in social terms. However, in the Croatia case the Court stated expressis verbis that the Convention envisaged two types of genocide, physical and biological genocide. The reason for contradictory statements in that regard lies in the uncritical reliance on the ICTY legal findings putting ICJ in the position of a mere verifier of.
Milenko Kreća (Wed,) studied this question.