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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 subjectmatter 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.