Nori-Corrigé
Uncorrected
Cour internationale
International Court
of Justice de Justice
THE EA6W La HAYE
Public sitting
held on Friday 2 April 1993, at 3 p.m., at the Peace Palace,
President Sir RobertJemings presiding
in the case concerning Application of the Convention on the
Prevention and Punishnent of the Crime of Genocide
(Bosnia-Herzegovina V.Yugoslavia (Serbia and Ebntenegro))
VERBATIM RECOBD
Audience publique
tenue le vendredi 2 avril 1993, à 15 heures, au Palais de la Paix,
sous la présidence de sir RobertJemings, Président
en l'affaire relative à l'Application de la convention pour la
prévention et la répression du crimede génocide
osni nie-~erzégov c.nYougoslavie (Serbie et Monténégro))
COMPTEBERDUPresen :
PresidentSir RobertJennings
Vice-PresidentOda
JudgesAgo
Schwebel
Bedjaoui
Ni
Evensen
Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjeva
Ajibola
RegistrarValencia-OspinaSir RobertJennings,Président
M. Oda,Vice-Président
MM. Ago
Schwebel
Bedjaoui
Ni
Evensen
Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjeva
Ajibola,juges
M. Valencia-OspinaG ,reffierThe Govenuent of the Republic of Bosnia and Herzegovina is representeà
by:
H. E.Mr. MuhamedSacirbey, Ambassador anPdermanentRepresentative
of Bosniaand Herzegovinato the United Nations,
Professor FrancisA.Boyle, Universit of IllinoisSchoolof Law at
Champaign(Illinois),
as Agents;
Mr. A. H.T. van denBiesen,Advocate(Amsterdam),
as Advocate et Counsel;
Mrs. JasminkaKalajdzic,Universityof TorontoSchool of Law,
as Legal Assistant.
The Government of the Feàeral Republic of Yugoslavia is represented
by:
Mr. Ljubinko ZivkovicChargéd'Affaires a.i.of theEmbassyof the
FederalRepublicof Yugoslavia,The Hague,
Mr. Shabtai Rosenne, Profess ofrInternationaLlaw,Universityof
Haifa; Memberof the IsraelBar; Memberof the Instituteof
InternationaLlaw; Honorary Membeorf the AmericanSocietyof
InternationaLlaw,
as Acting Agents.Le Gouvernerent de la ~épublique de osn nie-~erzégov ine représenté
par :
S. Exc.M. Muhamed Sacirbey, ambassade etrreprésentantpermanent
de la Bosnie-Herzégovin euprèsde l'organisatiod nes
Nations Unies,
M. FrancisA. Boyle,professeur à la facultéde droit de
l'Universitéde l'Illinois, Champaign(Illinois),
comme agents;
M. A. H.T. van denBiesen, avocat (Amsterdam),
comme avocat et conseil;
Mme JasminkaKalajdzic, de la facultéde droitde l'université de
Toronto,
comme assistantejuridique.
Le Gouvernerent de la ~épublique fédérative de Yougoslavie est
représenté par :
M. LjubinkoZivkovic,chargéd'affaires a.i. à l'ambassadede la
Républiquefédkrative de Yougoslavie,La Haye,
M. ShabtaiRosenr~ep,rofesseurde droit international, Université
d'Haifa; membredu barreau israélien; membd re l'Institutde
droit international; membre honoraire d1'AmericanSocietyof
InternationalLaw,
faisant fonctiond'agents. The PRESIDENT: Please beseated. We meet today to hear the reply
of the Respondentand first 1 cal1 upon Mr. Zivkovic,please.
Mr. ZIVKOVIC: Mr. Presidentand distinguished Members of the Court,
may it please the Court,as the Chargéd'affairesof the Embassyof the
FederalRepublicof Yugoslaviain The Hague, and as a member of its
diplomaticservice,it is a greathonour for me to addressthis most
distinguished international legal body, the principaludicialorgan of
the United Nations.
The tragedyof the civil warin formerBosnia and Herzegovinahas,
due to the courseit has taken,become an extremelyemotional issue, not W
only in that partof Europe whereit is takingplace, butpracticallyin
the whole world. The reasonsfor this are foundin the ferociousness of
the internationaland inter-religious fightingthere that has takenon
immenseproportions. What seems to be lost in the perceptionof the
events takingplace thereis the unfortunatefact thatmost of the acts
of violence arecommittedby peoplewho once usedto be neighbours, or,
at leasthave livednext to each otherfor a long periodof time.
What that does, in relationto this case that has beenbrought
before the highest legal bodyof the United Nations,is tohide the fact
w
that what we haveon our hand is a clear-cutcase of a civil waramong
the peoplesof a formerYugoslav republic, which is composedof Muslim,
Serbianand Croat population.
That also bringsus to one of the key argumentsin this casebrought
by the Governmentin Sarajevoagainstthe Federal Republic of Yugoslavia,
i.e., the contentionthat we are here dealingwith a situationof an
aggressionof one State against the other. There are no groundsfor this
assertion. Besidesthe obviousfactwhichthe othersidehas deliberately
failed to mention,i.e.,that theSerbsfightingin the civilwar in
Bosnia are not the Serbs whocornfromSerbiaitself, but Bosnian Serbs,
who havelived there for centuries,alongwith other nationag lroups.
They are not the "agentsand surrogates"of anyoneelse. It is necessary
to mention theserelevant factsw,hichsubstantiate the clai that the
FederalRepublicof Yugoslavia is not an aggressorin the civilwar in
Bosnia. In the Constitutiona Declaration of 27 April 1992,the
Parliament of the FederalRepublicof Yugoslaviahas clearly statedthat
the FederalRepublicof Yugoslavia has no territorialclaimstowardsthe
formerYugoslav republic shathave seceded from the Sociali Fstderal
Republicof Yugoslavia.
- the FederalRepublicof Yugoslavia doesnot havea single soldier on
the territoryof the "Republiocf Bosniaand Herzegovina";
- the FederalRepublicof Yugoslavia doesnot militarilysupport any side
in this internationa and inter-religious arm conflict;
- the FederalRepublicof Yugoslavia doesnot support, in any way, the
committingof seriouscrimesthatare beingdone in this former
Yugoslav republiacnd thatare listedin theApplication within these
proceedings.On the contrary,it hasstated publiclyo ,n numerous
occasions,its indignatioa nt al1 the crimes against humanicyommitted
in this civilwar, whetherit is so-calledeithniccleansing, or Just
plain murder,and withoutregardto who has committedthem. It has
also takenconcretestepsto proveits commitmentt so this effect.
Two important facts underline th point:
- It was the FederalRepublicof Yugoslavia,and alsothe high officiais
of its two constituent republics, Ser andaMontenegrowho first proposed settingup of United Nations observer on the bordersbetween
Yugoslaviaand Croatia, on one side,and "Bosnia and Herzegovina"on
the other.
- Among the almost 700,00r0efugeesnow on the territoryof the Federal
Republicof Yugoslavia,from civilwars in both Croatiaand "Bosniaand
Herzegovina",it is estimated that at least 50,000 aroef Muslim
nationalorigin. They have beentakenin, andare being cared for, to
the greatesteffectpossiblein the extremely difficult circumstances
now existing,on an absolutelyequalbasiswith otherrefugees. Most
of the other refugeesare of Serb origin,who are also the victimsof
persecution, "ethniccleansing" and if you may cal1 it that,plain
violence,perpetratedby al1 sidesin this civilwar.
1 also have to stress,that theGovernmentof the FederalRepublic
of Yugoslavia has, within its possibilitieand powers,and on its own
initiative,acted positively in the searchfor a peaceful solution ofthe
Bosnian crisis. At the same time,it has done its utmostto implement
the decisions ofthe United Nations organs.
This al1 bringsus back to the fact thatin the case of the former
Yugoslavia Republiocf Bosniaand Herzegovina, we are not facedwith a
State-to-State aggression,but with a civil warof immense proportions
and intensity. This makes al1 the claims againstthe FederalRepublic of
Yugoslaviaset out inthe Applicationof the other side of no validity
whatsoever.
In the opinion ofmy Government,what this intolerabl situation in
the former Yugoslavrepublicof Bosnia demands now is:
- first,the cessationof al1 hostilities, fow rhich the ceasefireof
28 March of thisyear, inwhose establishment the Yugoslav Government
had thegreatpart,may present agood step forward,- second,the findingolfa peacefulsolution whichis long lasting, true
and just for al1 parties,
- and lastly,when the highlychargedmotions that are dominatingthe
political arenasett1.edom, and when the true and verifiabl eacts of
what has occurred, aridis now happeningin Bosniacan be clearly
established, the prosecutionof thosethat are responsible fo the
crimesthatwere committedwill beundertaken.
The claims present:edn the Applicationof the Governmentin
Sarajevo are withoutfoundation. This fact alone is an indicationof
attempts beingmade to achieveimmediate and long-ter political
objectives througt hhe exploitationofhuman tragedy. This Application
before the InternationalCourtof Justice is anothervehiclefor this
purpose.
The immediategairifor Mr. Izetbegovic'sGovernmentin this case
would be the liftingof the arms embargo,as a provisional measure
proposedby the Court. If the Courtwere to do this, it would only
further aggravatethe civil warin Bosnia.
On the long-termbasis,and in a situation where personsof Serbian
nationality are living inother placesand Statesaway from Serbia as a
constituentpart of the Federal Republicof Yugoslavia(in this case,
former Yugoslav Republi of Bosniaand Herzegovina) such a sensitive,and
politicallyhigh-profilechargeof genocide brought agains the Federal
Republicof Yugoslavia, would providean opportunity for a forceful
impositionof any poli,ticaalnd other formof settlementthatwould in
al1 likelihoodgo againstthe basichuman rightsof personsof Serb
nationalityin former :Bosniaand Herzegovina.Yugoslavia,as being toitry and assist the Courtto the bestof my
abilityin reachingthe correctdecisionin this proceeding, which is
devoted exclusivelt yo the Request fothe indicationof provisional
measuresof protection.
1 alsowant, in this persona1 aspeco tf my statement,to referto
one statementin paragraph 9 of the Application institutin these
proceedings. There is includedthere a referenct eo the refugegranted
in Bosniaand Herzegovina to, amongstothers,the SephardicJews who
escaped the Inquisitioralnd Pogromsand in 1565 formed theicommunityin
Sarajevo. 1 myselfam descendedfromone of thoseSephardifamilies,the
Fonseca farnily,hosename is known to this Courtin another connection,
who escapedfromPortugal whenthe Inquisition was extendedto that
country. We al1 know fullwell that the Ottoman Empire, whicextended
its sway over Bosniaand Herzegovinalongbefore1492,playeda leading
role, alongwith some western European countries, especialI lyalyand
Holland,in granting refuge to thosevictimsof persecution,and as for
the JewishCommunityof Sarajevo itselfw ,hat more need 1 Say than that
it has supplied great leader so Israel today,including twoof its
Chiefsof Staff.
As is customary,I shall notincludein this statement the full
citationsof what 1 quotebut theyappearin the textwhich 1 have handed
into the Registrysubjectto check against deliver ynd 1 would askthat
they be includedin the transcriptof theseproceedings.
As 1 stated,my di~tytodayis to presentto this Court
considerationsof law which, inour opinion, should lead the Court to
declineto indicatethe requested provisional measures. One preliminary remari ks required.
The Application, a documen which inprint extendsto 70 pages in
lengthin each language,was filedin the Courton 20 March last. At
that timeit was faxedboth to the Minister for Foreign Affairsin
Belgrade andto the Permanent Representatio ve Yugoslaviato the
UnitedNationsin New York,but for some reason notto the Embassyhere
in The Hague. The transmission of that lengthydocument,together with
the Request for the indicationof preliminary measures, requires dome
time, in fact something like an hour, and in that transmissionsome pages
got lostor becameblurred. Englishis not the languageof Yugoslavia,
and its translationinto Serbianis not a quickor an easymatter. On
24 March,beforethe authoritiesin Belgrade had a proper opportuni toy
study the documents,theywere informed that thC eourt decidedto fix
Thursday1 April, yesterday, for thesehearings. 1myself received
instructions in Jerusalemonly on Wednesdaymorning. 1 am mentioning
this,Mr. President,simplyin askingfor the Court'sindulgencefor any
imperfections or incompleteness in my presentation.
Mr. President,there is a materialside also to this elementof
time. If 1 take the two recentinstancesof requests forthe indication
of provisional measures - requestswhich, 1 shouldrecall, were not
granted - and in both of which the instrumentinstitutingthe proceedings
was a shortdocument,the following picture emerges.
In the Passage through the GreatBelt (Finlandv. Denmark) case,
the application institutin the proceedingswas filedon 17 May 1991.
The requestfor the indicationof provisional measurew sas filedon
22 May. Writtenobservations by the respondentparty - incidentally a
fairlycomprehensive documen twere filedon 28 June. The hearingscommencedon 1 July and the Orderwas issuedon 29 July. 1 understand
that thoseproceedingsand thatOrderhappilylaid the basis for the
settlementof the caseout of court.
Last year, inthe two cases of Questionsof Interpretation and
Application of the 1971MontrealConventionarisingfrom the Aerial
incident atLockerbiethe applications instituting the proceedia ngs
the requestsfor the indicationof provisional measures wereal1 filed
simultaneously on 3March 1992. No writtenobservations were filedby
the respondents.The hearingson the requests forthe indicationof
provisional measurec sommencedon 26 March,and theOrderswere issuedon
14 April.
1 have nothad timeto examine other proceeding of thisnature,but
it does seem to us that in the circumstanceof this case, the time
allowedto the Governmentof Yugoslaviato preparefor theseproceedings,
to appoint its Agent,to choose its judgead hoc, to decide if it even
wants to appoint a judgead hoc,and to organize its delegation,is
reallyvery short.
My colleague,the distinguished acting Agent for the Republo ic
Yugoslavia, togethew rith myself,has already indicatedto the Court the
positionof his Goverment regarding the allegationsof fact containedin
the Application institutingthe proceedings, andit is not for me to say
anything moreabout thatat this stageof the incidental proceedings for
the indicationof provisional measures. 1 will concentrateon two
inter-relatedpoints, :namely,the jurisdictionof the Courtto deal with
this Request,and thequestionof the relationof theseproceedingsto
the on-goingproceedingsin the SecurityCouncil. With regardto the jurisdiction of the Court, the Application
instituting the proceedings reli onsone titleof jurisdictiononly,
Article IX of the Conventionon the Preventionand Punishmentof the
Crimeof Genocide of9 December1948. With yourpermission,
Mr. President,that provisionreads:
"Disputesbetweenthe Contracting Partiesrelatingto the
interpretation, applicatio on fulfilmentof the present
Convention,includingthoserelatingto the responsibilito yf a
State for genocideor for any of the otheracts enumeratedin
articleIII, shallbe submittedto the International Cour of
Justiceat the requestof any of the partiesto the dispute."
Beforedealingwith the substanceof that partof the case, thereis
a preliminaryquestion. As we understand it, Bosnii as claimingthe
status ofparty to that Convention by virtuoef a "notificationof
succe~sion~ which it has filedwith the Secretary-Generaolf the
United Nations, in his capacityas depositaryof the Genocide
Convention. Bosnia-Herzegovinas an independentinternationalentity.
It was admittedto membershipin the United Nations on 22 May 1992. Many
issues relating to thenewly-independenSttatesof the formerYugoslavia
are outstanding,and oneof the most significant amongs them arethose
relatingto what is comrnonlycalled"Statesuccession".
1 do not haveto go into anyaspectof thatnow, exceptto Say that
w
no rule of contemporary internationlaalw - that 1 know-gives Bosnia
the rightto proclaimunilaterally, by means of a documentcalleda
notificationof succession,that it is now a party to the Genocide
Convention witheffectfrom 6 March 1992,merelybecauseYugoslaviais a
party to the Conventionand becausethe Conventionwas applicableto what
is now the territoryof Bosniaand Herzegovina througt hhe former
SocialistFederalRepublicof Yugoslavia. 1 find confirmationof this in
the ViennaConventionon the Successionof States inRespectof Treaties of 23 August 1978. Article 7of that Conventiondealswith the temporal
applicationof the Con,ventiona,nd its firstparagraphprovides:
"1. Without prejudice to the applicationof any of the
rulesset forthin the presentConventionto which the effects
of a successionof Stateswouldbe subject under international
law independently of the Convention,the Convention applies
only in respectof a successionof States whichhas occurred
after the entryinto forceof the Conventionexceptas may be
otherwiseagreed."(TheWork of the International Law
Commission,4th ed., p. 323 (UN SalesNo. E.88.V.l).)
Mr. President,it is a matterof commonknowledgethat the
"declaration of succession"procedure, which incidentali lynot
mentioned anywheri en the 1969 Conventionon the Law of Treaties
(1155 UNTS 331),was evolvedin orderto deal with the problemof the
effectof decolonization on the treatyobligationsof the former colonial
powersand the newly-independent decolonizp edwers. That convention is
not yet in force,alth~ougthhe processof a declaration ofsuccessionis
fully acccepted and appliedin thosecircurnstances o decolonization.
At the end of 1991- the last date for which1 have particulars-
therewere nine ratifications out of the 15 requiredto bring the 1978
Conventioninto force.Yugoslaviais a signatoryof that Conventionand
ratified it without reservatioonn 28 April 1980. 1 submitthat it would
defeatthe objectand purposeof theConventionto apply in 1993the
conceptof declaratioroif successionto circurnstancewhich were notin
contemplation when the InternationalLaw Commissionpreparedits draft
articleson the topic,and thediplomatic conferenca edopted the
Conventionof 1978. Zn Our submissionthe notification of successio of
Bosniaand Herzegovinawhich wascirculatedby the Secretary-Generai ln
his capacityas depositaryof the Convention,is not the same as a
declarationof succession in a caseof decolonization.
What 1 am sayingis borne out by the curious termsof the depositary
notice circulatedby t:heSecretary-Generao lf the UnitedNationson
18 Marchlast. Accordingto thatnotice,the Governmentof BosniaandHerzegovina deposited th inotificiatioonf ~uccession~on
29 December 1992w,ith retroactive effec to 6March 1992, thd eate on
which "Bosniaand Herzegovina assumed responsibility forts
international relations".Bosniaand Herzegovina is perfectlyentitled
to accedeto the Convention in thenormal way,in accordance with
Article XIII of the Conventionsuchaccessiontakingits effect after
the lapseof 90 days from the depositf the instrumenwtith the
Secretary-Generao lf the UniteNations.
Accordingly,Mr. President,al1 thatpart of the statementof facts
containedin the Application instituting the proceed whichpreceded
the entry into forc of the Convention for Bosnia and Herzegoi vina
accordance with ArticleXIII is outsidethe jurisdictionof the Court.
The Federal Republiocf Yugoslaviadoesnot consentto any extention of
the jurisdictionof the Court beyond wha is strictly stipulatein the
Conventionitself.
Whilemaintaining thosecontentions, Mr. President,1wouldnow like
to turn in the alternativteo the Conventionitself.
1 thinkthe Court will agre withme thatArticleIX of the
Convention of the Preventioand Punishmentof the Crimeof Genocideis
an unusual formof compromissory claus and thatexceptionalcare is
required beforethe Court basesjurisdictionon it in the mainline
proceedings,and a fortioribeforeit bases its threshol jurisdiction
to indicate provisional measur ofsprotectionin this incidentaplhase.
That part of the provisioof ArticleIX which refersto "disputes
relatingto theinterpretatioa nnd application"of the Convention is, of
course,in customary termsa ,nd on that1 will content myselat this
stagewithnotingthatthe application instituting the proceedi ands,
its strearnsf additional submissiond s,esnot containany indicationthat such a disputehas yet arisen. 1 say thiswith al1 deliberation
havingregard to what 1 have been ableto learnregardingthe proceedings
in the GeneralAssembl'yand in the SecurityCouncil. The problemstarts withthe followingwords of ArticleIX. 1 would
not at this stagedisputethat al1 the words of ArticleIX from
"fulfilmentof the presentConvention"to "acts enumerated in
ArticleXIII" relate to the meritsof the case,and we are not concerned
with thatnow, beyondreserving al1 Our rightsas to how we shalldeal
with the jurisdiction of the Courtand the merits whenthe time cornes.
The point 1 wish to make now is a differentone. If we look closely
at the Requestfor the indicationof provisional measures, wha do we
find?
That Yugoslavia "togetherwith its agentsand surrogates" - 1 do not
v
reallyknow what ismeanthere by "surrogates" - must immediatelcyease
what the other side is calling"actsof genocideand genocidalacts", an
expressionwhich 1 wouldhave thoughtwas merelyrepetitious.What is
meant bythat can be ascertained from theApplication institutin the
proceedings. But as the Courthas stressed, the Request forthe
indicationof provisional measures "mub st its verynature relateto the
substanceof the case since,as Article41 [of the Statute]expressly
States,theirobjectis to preservethe respective rights of either
party" (United States Diplornaticand Consular Staff in Tehran,
Provisional Measures, I.C.J.Reports 1979,p. 16, para. 28).
That is where the problemlies. What Our opponents are asking,in
the disguiseof an indicationof provisional measures,is reallyfor an
interim judgmenton the meritsof the case. There can be no question
about that,and in our view thib sringsthe case directly and squarely
within the scope ofthe doctrineenunciatedby thePermanentCourt in the
well-know Chorzow Factorycase (Order of 21 November 1927,Permanent
Court of International Justice, Series A, No. 12p. 10). In the
Hostages case, the Courtdistinguished the issueswhich it then faced
from thosewhich faced itspredecessorin 1927. In Our view,Mr. President,that distinction cannb ot madein the presentcase. The
detailsof the provisional measures reques htede to be seenagainstthe
forma1statementof the claimas statedin the Application instituting
the proceedings. The questionthenhas to be askedwhether,in tems of
Article41 of the Statiitet,he rightsclaimedin so far as they come
withinthe jurisdictio~ of the Courtare in need of the protectiowhich
Article41 envisages. In Our submission, in this case that essential
condition is not met.
1 now want to say something about the resoluti ofnthe Security
Council. Here allow me to recallthat in the first resolution,
resolution 713 of 25 Septembe1991,the Security Councilinsisted that
it was actingunderChapterVI1 of the Charter. The last resolution to
date,resolution 802 of25 January,in whichit recalledal1 its previous
resolutions from resoluti 7o13 onwards,concludedwith the sentence,
frequently employedby the Security Councilt,hat theSecurityCouncil
"decidesto remainactively seizeo df thematter". 1 said resolution 802
of 25 Januaryas a last resolution but 1 believe1 saw inthe mediathat
another resolutio was adoptedyesterdayor theday before, and with the
Court'sindulgence thatresolution has notreachedme yet, so 1 do not
knowwhat is in it. 1 would say thisM,r. President. The Security
Council remains actively seio zedthewholequestionraisedin the
Applicationinstituting theseproceedings and in the Request forhe
indicationof provisionalmeasures. And1would,with al1 respect,
request theCourtto k.eep thataspectof the case in mind.
Now, in paragraph.m)of the submissionsof the Application
institutingthe proceedings,we read:
"(m) thatSecurityCouncil resolutio 7n13 (1991),imposinga
weaponsembargoupon the former Yugoslavia, mus be construed
in amannerthatshall notimpair the inherentrightof
individualor col.lectivself-defenceof Bosniaand Herzegovina
underthe termsof United Nations ChartA erticle51 and the
rulesof customary internationl alw".The Agent of Bosnia and Herzegovina devoted a great p arhtis statement
yesterdayto that aspect of his case.
SecurityCouncil resolutio7 n13 (1991)is the firstof a longseries
of resolutions adopteb dy the Security Councilince25 September1991.
Paragraph 6 of that resolutionreads:
"The Security Council
6. Decides,under ChapterVI1 of the Charterof the
United Nations, thatal1 States shall,for thepurposesof
establishing peaceand stabilityin Yugoslavia, immediately
implement a general and comple embargoon al1 deliveriesof
weaponsand military equipment to Yugoslaviauntil the Security
Council decidesotherwisefollowingconsultation betweenthe
Secretary-Generaalnd theGovemment of Yugoslavia."
"Al1 States",Mr. President.
This is the key provisionto which the submissionsof the
Application institutingthe proceedingsin this caserefer. Itis to
this provision that different paragraphosf the Request forthe
indicationof provisional measurea sdverts. 1 am thinkingparticularly
of paragraphs4, 5 and6 of the provisional measurersequested. Bosnia
and Herzegovinahas alwaysresented the even-handedne ssSecurity
Council resolutio7 n13 (1991),and is now attempting, througthhe
machineryof a Request for the indicationof provisional measureosf
protection,to circumventit.
Mr. President,Membersof the Court.
Anyone who is familiarwith the workingsof the Security Council
knows that thelanguageof its resolutions is always very carefully
chosen. In that connection, rnay1 recall whatthe Court hadto Say about
this in 1971: "the languageof a resolution of the Security Council
shouldbe carefully analysed" (Legal Consequences forStates of the
Continued Presenceof South Africa in Namibia (South Westfrica)
notwithstandingSecurity Council Resolution276 (1970),
I.C.J. Reports1971,p. 53, para. 53). Actually, paragrap6h of resolution713 (1991)does not reallyneed
much by way of analysis. It means,Mr. President, exactlw yhat it says.
What is more,it does not standalone. 1would like to recallthat the
Security Council has specificallyreaffirmed thatprovision severaltimes
since it was firstadoptedin 1991. 1 referto Security Council
resolution724 of 15 December1991,740 of 7 February 1992, 743 of
21 February1992 (see in particularpara. Il), resolution762 of
30 June 1992 (see especiallypara. 8). The Security Council deliberately
adoptedand confirmedthat paragraphof resolution713 (1991),al1 the
time acting under ChapterVI1 of the Charter.That Chapter,1 need not
remind theCourt,deals withactionwith respectto threatsto the peace,
breachesof the peace and acts of aggression,and it is here that the
Security Councilhas exclusive powers to take mandatoryaction. In more
general language the Security Councilreaffirmedresolution713 (1991)in
resolution780 (1992)of 6 October lastand in resolution787 (1992)of
16 November last, botahnd others, after Bosnia-Herzegovinaecarnea
Memberof the UnitedNations.
What Our opponentsare askingthe Court to do today,in the guiseof
a Requestfor theindicationof provisional measuresof protection, is to
interpretor even to amend thatprovisionof resolution713 (1991)and
turn it into a tendentiousand one-sideprovision,which is not
calculatedto achievethe aimswhich the Security Council and we al1 wish
to see, the restorationof peace in thearea concerned.
The Courthas always beenextremelycarefuland cautiouswhen faced
with questions relatingto actionsof the SecurityCouncil,and perhaps
in contrastto what is sometimesexpressedin academic literatureh ,as
not alloweditselfto be pushedinto anyform of confrontation with the
SecurityCouncil. This was particularlyin evidencein the proceedings
lastyear inthe Lockerbie case,and 1 do not intend,nor was 1 able inthe limited timewhich1 had to prepare this statement t, traversethe
groundcoveredin the oral proceeding isn that case.Here 1 would like
to recallone paragraphfrom the Orderof 14 April last (1 am quoting
formthe Orderrendered by the Coui rt the case brought againtshte
UnitedKingdom,but the sameparagraph appeari sn the second casberought
against United State of Arnerica). Paragraph39 of the UnitedKingdomOrderreads:
**Whereabsoth Libyaand the UnitedKingdom,as membersof
the United Nations, are oblig todaccept and carry out the
decisionsof the Security Counci in accordancewith Article 25
of the Charter; whereas the Cou rt,ch is at the stageof
proceedingson provisional measures, considers that prima facie
thisobligation extendsto the decisioncontainedin
resolution748 (1992); and whereas,in accordance with Article
103 of the Charter, the obligatio ofsthe Partiesin that
respect prevaiolver their obligationsunderany other
internationalagreement...**
In Our view, the doctrinuendqlying that recitalin the Order,is
to prevailwith even greater forc in the present case ,here the
Security Councih las been actingunderChapterVI1 of the Charter from
the very beginnin ogf its dealingwith thisproblem.
In this respect,the present case is easily distinguishable tf woom
caseswhichacademic writing frequently is inclt inhold upas
indicating potential conflict betw thenCourtand the Security
Council. 1 am referrirlgo theMilitary and Paramilitary Activities in
and against Nicaraguacaseand to the Lockerbiecases. At the time
the Courtwas seisedof each oneof thosethreecases,the Security
Council hadbeen actingunderother provisiono sf the Charternot under
ChapterVI1 (it movedintoChapterVI1 whilethe Courtwas deliberating
in the Lockerbiecases:).This is not the positionhere,where, as1
have mentioned, the Security Counh cil beenactingunderChapterVI1 of
the Charter,with al1 the implicationwshich thathas for al1 organs of
the United Nationa snd for al1 States, whethrr notmembersof the
UnitedNations.
This issuehas an importance which transcends the relat oiothe
Partiesin the present case. As seen,paragraph 6 of resolution713 is
addressedto al1 States,and sinceit was adoptedunderChapterVI1 of
the Charterit is mandatory foral1 States. The Court would wish to be
extremely cautious before chang inngny way the meaning, thesense,thethrustof that mandatory provision, eve inf it were todo so only
indirectly andby means of an interpretation and through the virtually
summaryand peremptoryincidental proceedingo sn a request foran
indicationof interim measureof protection.
1 am perfectly aware of the fact thaton many occasions, the
Security Council has adopted decisions deploringvariousactivities
attributedto the Governmentof Yugoslaviaor otherwisecriticizingit,
But if we look at the resolutions as a whole, as1 am sure the Court
would wish to do - 1 will filethem if the Courtso requires - 1 think it
would be fair to Say that the Security Councihlas avoided
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over-generalized apportionmeno tf blame for the currenstituation. The
list of resolutionsin question includes the following, excluding the one
adopteda day or so ago, namely713, 721,724 of 1991, 727, 740, 743,
749, 752, 757, 758, 761,762, 764,769, 770, 771,776, 780,781, 787,
795, 798 of 1992 - an enormousnumber of resolutions- and 802 of 1993.
In al1 these resolutionsit has alwayscalledupon al1 partiesto take
whatever action a particular resolutiohnad in mind in face of a
particular event or incident. And indeewhen the Security Council
decided that actionsof the Governmentof Yugoslaviawere optento
criticismand even condemnation, we must not overlookthe fact that these W
were political determinationb sy a political body,not legal
determinationsbased on careful perusal of full pleadings carefully
marshalledand studiedin adeliberately thorough adversarip alocess. 1
don not share the view, and 1do not thinkthat theCourthas ever said
anythingwhich could supportsuch a view, that decisionsof this
characterby theSecurity Council are "quasi-judicial" whatever that
mysterious expressioc nouldmean. They are political decisionb sased on
an interplayof political factors not alway apparent. Members of theCourtwho in anothercapacityhave experienced proceedings in the
Security Council ar well awareof this, and 1 do not needto belabour
the pointany more.
What Bosnia and Herzegovinas askingthe Courtto do in its
Application institutingthe proceedingiss to pick and choose
pronouncementsof the Security Counci and transmutethemby someprocess
of alchemy into decisioo ns the Courtwith al1 the consequences which
attenddecisions of the Court. And what Bosnia and Herzegovinais then
tryingto do in theseinterimmeasures proceeding is to obtainan
interim pronouncemen by the Courtto the same effect. It is attempting
to abuse thethreshold jurisdictionof the Courtto indicateprovisional
measuresof protectioni.n orderto obtainan anterim judgmeno tn the
merits,n0twithstandint .gat in our submission in this case the
admittedly lowthresholdjurisdiction underthe unusual compromissory
clauseof the Genocide Conventio has not beenreached. Mr. President, 1 know Latin is not an officia1languageof the
United Nations but may 1 be allowedto quotea well-knownmaxim, 1 think
from theDigest: narra mihi facta,narrabo tibi jus. This is a court
of law,not another type of SecurityCouncil. Some factsare obviously
necessary before any viable statemo enlaw can be made, and this,of
course,is expressly recognizei dn the Rulesof Court. However, 1 think
that study of the recordsof this Courtand of its predecessor will show
that, rarely, if at all,has the Courtbeen swampedby such long streams
of factsand allegationsof facts,with solittlelaw, as we heard
yesterday.
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These are incidental proceedino gns the request foran indicationof
provisional measureo sf protectionunderArticle41 of the Statute,and
the procedure set forthin Articles73 to 78 of the Rules of Court. We
intendto keep as much as possiblewithinthe limits setby that
procedure. From that pointof departure, 1 will now turn,Mr. President,
to the matterwhichyou raised yesterday when you referredto Article61,
paragraph1, of the Rules, 1 believethe firsttime that thatprovision
has been formallyinvokedat al1 events,and at the same timeyou
mentioned,Mr. President,a new documentfiledby the adverse Partw yhich
it believedcould form whatit has termed"an additional basis for
jurisdiction in thic sase".
1 would first of al1 expressthe strongest reservatio nt this
attemptto changethe basis of jurisdiction which 1 supposetheywould
justifyby the reservation containe in the Application institutit nge
proceedings, paragrap h35, to revise,amendor supplementthe
Application institutin the proceedings.This is not the time or the
place for full argumen on theextentto which this typeof reservation
is compatiblewith Article40 of the Statuteof the Courtand Article 38of the Rules of Court. 1 would simply likt eo mentionthe doctrinal
studyof this problem 'bythe Italianjurist,LuigiMigliorino,in the
1989 volumeof the Rivistadi diritto internazionale. Last year inthe
Nauru case the Court addressed this problem and stressen detdhto
maintainjuridicalsecurityin relationto matters raised in an
application instituting proceedings,and 1 submit that thesame
considerations appl yere. Yesterday afternoon w,hile1 was preparing my
notes for theseremarks, 1 receiveda letterfrom the distinguished
Registrar, after the cloo sfe the proceedingsyesterday,forwarding some
more of what is called"Supplementary Submissionin supportof the
Application".That was submitted yesterdab yy the Agentof the other
side. This really calls for an energeticproteston our part. How can a
litigant,how can any litigant,possiblyprepare its presentation before
the Court, if there i to be a constantand apparently unrestrained
delugeof documentsand new submissions and supplements from its
opponent? This is on1:ycausingconfusionon al1 sidesand 1 am surethat
the Court is as confusedas we are. 1 would really respectfully urt gee
Court to address this:problemand draw appropriate conclusions.
As theseare incildentap lroceedingson provisional measures,
requestedby the other side on the basisof "The factsset forthin the
Statementof Facts in theApplication", 1 will content myselfwith these
brief remarks on this aspectat thisstage,reservingOur rightto deal
with theproblemmore fullyat the appropriate time.
Mr. President,anti1 now have to Say this, this Courtis not an
international criminalcourtand conceptssuch as thosewe heard
yesterday, derived fromdomesticcriminallaw,have no relevancein these
kind of proceedings before thi Court. The Court'sjurisdictionis
definedby Article 36 of the Statute,and Article 36 does not endow itwith the powers and functiono sf the militarytribunalswhich triedthe
major Nazi war criminals after the Second Wor War. Nothingin the
Conventionon the Preventionand Punishmentof the Crimeof Genocide
affectsthis, andin this case,Mr. President,the jurisdiction of the
Court is based excZusive2yon Article36, paragraph12, of the Statute.
The additional basis fotrhe jurisdictionof the Courtnow-invoked
by the other side is apparentlyto be foundin paragraphs2 and 3 of the
lettersent by the Presidentof Serbiaand Montenegroto
MonsieurRobert Badinter, Presiden of the Arbitration Commissioof the
Conferenceon Yugoslaviain Paris,on 8June 1992. Paragraphs2 and 3 of
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that letterread, in the translation supplied b the otherside:
"2. It is the principledpositionof FR Yugoslaviathat
al1 questionsinvolvedin the overall settlemeno tf the
Yugoslav crisisshouldbe resolvedin an agreementbetweenFR
Yugoslaviaand al1 the former Yugoslavrepublics.
3. FR Yugoslaviaholds the view thatal1 legal disputes
which cannotbe settledby agreement between FR Yugoslaviaand
the former Yugoslav republics shou bedtakento the
International Courotf Justice,as the principaljudicial organ
of the UnitedNations."
Mr. President,that letteris an illustration of the confidence
which the Governmentof the FederalRepublicof Yugoslavia reposei sn
this Court. It reflectsthe policyof this Governmentthat legal
disputeswith Yugoslavia which cannot be resolvebdy othermeans should
be resolvedin accordancewith the Statuteof the Court. But theries
nothingin this letterwhich can be takenas a general acceptanco ef the
jurisdiction of the Court foral1 disputesof a legalnaturebetweenthe
FederalRepublicof Yugoslaviaand former Yugoslavrepublics.
It is not
an offerwhich can be takenup unilaterally by any otherState,and
Professor Boyle'sremarksyesterdayabout accepting thio sfferdo not
confer anyjurisdiction on the Court. If the Applicationis intendedtocomewithin the scopeof Article38, paragraph 5, of the Rulesof Court,
then 1 have to make it clear that the consen of the Federal Republicof
Yugoslaviahas not been given,and no actionin the proceedings shoul be
taken. 1 would respectfully ask the Cou totclarify thispoint.
As 1 see it, Mr. President,the positionis, in fact,identicalwith
thatwhich facedthe Court a fewyears ago in the Aegean Sea Continental
Shelf case. There too, the applicant, Greece, sougt ht found the
jurisdiction of the Courton a joint communiqué in which Greeceand
Turkeyannounced their political decisionthat problems betweet nhose
two countries shoul de resolved peacefully through the Coo urtthe
basis of Article 36, paragraph1, of the Statute. The expression used in
that communiquéwas "devraientêtre résolus".
The letterof 8 June, astranslatedintoFrench byOur opponents, also
uses the same expression,"devraientêtre resolus". In neither English
nor in French is that the languagoef legal obligation oar firm
acceptanceof the jurisdictioo nf the Court under the termsof the
Statute. It is an indicationof willingnessto agreewith other States
on the termsof referringa defined dispute to the Courtin accordance
with the termsof the Statute,and 1 submitthat as it did in 1978,the
Court should"concludethat it was notintendedto, and didnot,
constitutean immediate cornmitment "y theGovernmentof the Federal
Republicof Yugoslaviato "acceptunconditionally the unilateral
submissionof the present disputt eo the Court". 1 am citing from
page 44, paragraph107, of the Court'sJudgment in the Aegean Sea
Continental Shelf case.
There is one more jurisdictional argume with which 1 have to deal.
1 am referringto the contentions advance by Professor Boyle at
page 39 of yesterday's hearingt,o the effect that ArticlVeI11 of the Conventionon the Preventionand Punishmentof the Crimeof Genocide
somehowor other "expresslyconfersinternational legalcompetenceupon
the International Cour of Justiceto take effectiveactionto prevent
and suppressal1 acts of genocideand otheracts enumeratedin
ArticleIII" of the Convention. 1 noted, if1 am not mistaken,that
Professor Boyle did not read into the recordthe textof Article VIII,
and 1 shall thereforedo that. It readsas follows:
"Any Contracting Party macyal1upon the competent organs
of the United Nationsto take such actionunder the Charterof
the UnitedNationsas they considerappropriate for the
preventionand suppression of acts of genocideor any of the
other actsenumeratedin ArticleIII."
Mr. President, 1 have nothad timeto undertakean investigation
into the legislative histoo ry that provision.However,relyingon
Article31 of the Vienna Conventioo nn the Law ofTreaties, 1 would
ventureto suggestthat interpretation in goodfaithin accordancewith
the ordinary meaning to be givento the termsof the Treaty in their
context andin the lightof the objectand purposeof the Treatydoes not
lead to any ambiguityor obscurityor lead to a resultwhich is
manifestlyabsurdor unreasonable, so as to justify recourseto the
legislative history.The Article meanswhat it plainlysays: a
contracting Statemay have recourseto a competentorganof the
United Nations to takesuch actionunder the Charteras that organthinks
appropriate. The Statuteof the Court is an integralpart of, and an
annex to, the Charter. Applietdo the Court,in its capacityof a
principalorganand the principaljudicialorganof the United Nations,
ArticleVI11 simply states that thecontracting Statesmay have recourse
to the Court to exerciseits competenceunder the Charterand Statuteto
take such actionas it considersappropriate. In relationto provisional
measures ofprotection,the competenceof the Court is established byArticle 36, paragraph1, of theStatute,read togetherwith Article IX of
the Conventionas the pointof departure,followedby Article41 of the
Statuteand the discretion which Artic4 l1 conferson the Court,a
discretion which,1 might add, asal1 other discretionary powers
conferredon the Court,must be exercised judicially.No amendmentcan
be made to the Charte rnd Statuteof the Courtby anothertreaty.
Mr. President,1 .nowcometo the last sectioonf my remarks, the
questionof provisional measures, whichis what this phasof the
proceedings is about.
My taskhas been made easierby the communication sentto the
Registrar yesterda yy Gospodin JovanovictheMinister for Foreign
Affairsof the FederalRepublicof Yugoslavia.
In that communicatiotheMinisteroutlinedthe elernentw shich
should beincludedin any indicatioo nf provisionalmeasures, shoultdhe
Court concludethat it is appropriatefor it to make suchan order.
One: to instructtheMuslim-controllea duthoritieof Bosniaand
Herzegovinato complystrictly with thelatestagreementon a cease-fire
in Bosniaand Herzegovina,thatis the agreement which cam into forceon
28 March last,aftertheseproceedings hab deen instituted anadfterthe
Requestfor the indicationof provisionalmeasures hadbeen filed.
Two: to instructthosesameauthorities to respectand applythe
Geneva Conventionfsor the Protectionof Victimsof War of 1949,as well
as the appropriate Additional Protocols 1977. Genocideand genocidal
acts arebeing carried out again strbslivingin the Republic of Bosnia
and Herzegovina, as welas very seriouswar crimes. 1 am informedthat
the Serbianpopulationof Bosnia and Herzegovina constitutes abou34% of
the total population otfhat Republic. Three: toinstructthosesameauthorities to closeimmediately and
disbandal1 prisons and detention camipnstheirterritory, camps and
locationsin whichSerbs arebeing detained becauseof theirethnic
origins and arbeeingsubjectto actsof violenceand torturepresenting
a real dangerto theirlifeand health.
Four: toinstructthosesameauthorities to allow the Serb
residents without delato leave safelyand in security Tuzla, Zenca,
Sarajevo and other places in Bosa niaHerzegovina wherteheyhave been
subjectedto harassmentand physicalandmental abuse, bearingin mind
thatthey maysuffer the same fateas Serbsin eastern Bosnia,the site
of the massacreof severalthousandof Serb civilians.
Five: tdirectthosesame authorities and their surrogat tes
ceaseand desistimmediately from furth erstruction and desecration of
Orthodox churchea snd placesof worshipand of other sitesbelongingto
the Serb cultural heritage and tostop furthermistreatmentof Orthodox
priests being held i prison.
Six: to directthosesameauthorities to put an end to al1 actsof
discriminatiobnasedon nationality or religionand theiractivities of
"ethniccleansing", includingdiscrimination itnhe deliveryof
humanitarianaid to the Serbpopulation in Bosniaand Herzegovina.
In that communicationt,heMinisterfor Foreign Affairs also
comrnenteodn the provisionamleasures whicare being requeste by Bosnia
and Herzegovina. 1 am referringnow to the provisionamleasures
requestedas set outon page 6 of the Court's reproduction othat
Request.
There is no groundfor acceptingthe request for the provisional
measuresas containedin paragraph 1 of thatdocument. The Federal
Government of Yugoslava iad itssubordinate bodies, including themilitary,have notcommittedand arenot committing any of the acts to
whichArticle IIIof the Conventioonn the Preventionand Punishmentof
the Crimeof Genociderefers. Sincethe beginningof the inter-ethnic
and inter-religious conflici tsBosniaand Herzegovina, the Federal
Government of Yugoslaviahas consistently sought a peaceful resoluo tion
the crisis. The Muslimside,and itsPresident himself, bea rheavy
responsibilitf yor initiatingand spreadingthatconflict throughout
Bosnia and Herzegovina.The allegations made against theFederal
Republicin the Streamof documentsthathave been sent to the Courtby
the other sideare unsiupportebdy any hard evidence. Pressreports,
oftentendentious, arn eot adequateas a basis forsuch seriouscharges
against asovereignState.
The measuresproposedin paragraphs 2 to 6, go beyond anyof the
provisionsof the Convention and thereforedo not reach eventhe low
thresholdjurisdiction of the Courtin the matterof the indicationof
provisionalmeasures. Furthermore, the assertionswhich formthe basis
for thosemeasures are inconsistentwith the facts. An additional reason
for rejectingthe requestsenumerated in paragraphs4, 5 and 6 of that
Request, is thattheir acceptancw eouldonly lead to the perpetuationf
the genocideand genocidal actsbeing perpetrate againstthe Serb
population of the territoryof Bosniaand Herzegovina.
1 prefacedthispart of my statement with a suggestionthat the
Court mightconcludethat it wouldnot beappropriate for it to make any
indication ofprovisio.na measuresin thiscase. 1 now have to indicate
why thisis so.
Referringto Article41 of the Statuteof the Court, 1 submitthat
the case-lawof the Courtestablishes two fundamentalcriteriawhichmust
be met beforethe Court will exercise its discretionary pt owindicate
provisional measure of protection. The firstconditionis thatthe instrument invoke as the titleof
jurisdiction mustprima facieprovidea basis for jurisdictionover the
factsindicatedin the instrument bw yhichthe proceedingshave been
instituted, in this casetheApplication institutit nge proceedings,
without any reference to thdeelugeof additions towhichwe have al1
been subjected.
The secondis thatthe provisional measures reques musdt be
necessaryto preserve rights liket lybe adjudicated.
In Our submission,neitherof theseconditions is met by the Request
of Bosnia-Herzegovina.
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With regardto the firstaspect,1 have alreadyattemptedto show,1
hope to the satisfactioonf the Court,thatto the extentthatArticleIX
of the Conventionsupplies a basifsor thejurisdiction of the Court,
thatjurisdiction is limitedto eventswhichoccurredafterthe
participationof Bosniaand Herzegovina in the GenocideConventionbecame
effective. There is no other basisfor the jurisdictionof the Court,
and in particular, ArticleI11 of the Conventiondoesnot enlargein any
way the jurisdictionor thecompetence of the Courtor the discretionof
the Court underArticle41 of the Statute. In al1 circumstances,
Article103 of the Charteris predominantas far as regardsany
obligation of Statesunderthe Conventionand underthe actionsof the
SecurityCouncilactingin accordance with ChapterVI1 of the Charter.
With regardto the secondrequirement,that themeasuresrequested
are necessaryto preserve rights which mig betadjudgedto eitherparty
in due course,1 submitthatwhen one goesbehind the welterof charges
and counterchargesin this case,the Courtmust find thatwhen the
SecurityCouncil is actingunderChapterVI1 of the Charter, the
often-repeatevdiew of the Court thaArticle41 of the Statuteconfers - 35 -
on the Courtan **except:ion powerl*should prevail(see for instance, the
Aegean Sea Continental Shelf, Interim Protectioncase
(I.C.J. Reports 1976, y.11) and theGreat Belt case,
I.C.J. Reports 1991,p. 29) in the separateopinionof
Judge Shahabuddeen). 1:submit that the Cour has heard enough, despite
the reticence whichwe on this side of the podiumhave manifestedin
ordernot to exacerbate relationi sn theseproceedings,to show that
there existsa realpossibility that the oths erdewill not obtainfrom
the Court the Judgment request indits Application instituting the
proceedings. In thosecircumstances, were the Courtto indicate
provisional measuren sow, it would run the risk that later it would find
itselfin the uncomfort:abl positionwhich arose in 1952 inthe
Anglo-Iranian Oil Company case,and whichwas foreseenby two eminent
Membersof the Court then,JudgesWiniarskiand Badawi (see
I.C.J. Reports 1951,p. 97).
In our submission, careful examinato ionthe Application
instituting the proceedina gsd the Request for the indicati oninterim
measureswill not discl.osethat therehas been a demonstrated urgenct yo
the request.The typographical trica knd bombastic phraseologoyf the
highlighted passago en page 138, paragraph136, ofthe printed versioo nf
the Application institiitintghe proceedings arenot a substitute for a
demonstration of urgency. The questionis aired before the Cour tvery
time arequest is made forthe indicationof provisional measuresa ,s
though the Court is not:familiarwith its own precedents,and in orderto
save the timeof the Court, 1 will refrain today from repeating arguments
which the Court has heardad nauseam, as recentlyas one year ago in
other cases. Mr. Presidentand Membersof the Court,1 do not thinkthat it is
necessaryto concludethis statementwith any forma1submissions which,
as 1 read the Rulesof the Court, are not always requiredin this typeof
incidentalproceedings. The pleadingsshow that the Request raisesa
seriesof complexissues. If the Court reaches the conclusi tonat it
ought to exercise its discretio and give someindicationof what it
would regardas appropriate provisional measur which ought to be
adopted at this stageof the case, thenwe have indicatedwhat type of
measureswe think oughtto be indicated. On the otherhand,we have also
suggestedthat in the circumstances of this case,it wouldbe more
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appropriate for the Court to declineto indicate any provisional measures
at all. At al1 events,Our view is that the one-sideadnd unbalanced
requests made by Bosniaand Herzegovinawould underno circumstances be
appropriateand we respectfully ask the Courtso to decide.
That concludes what1 want to Say at this stage ofthe proceedings
which, 1 may recall oncemore, are incidental proceeding sn a Request
for the indicationof provisional measureosf protection underArticle41
of the Statute. Al1 other rights of the Governmentof the Federal
Republicof Yugoslavia under the Statuteand Rulesof the Court,
includingbut not limitedto its rightto presentcounter-claims, are
reserved.
That concludesthe pleadingwhich 1 wish to makeon behalfof the
Governmentof the FederalRepublicof Yugoslavia at this stage.
However,Mr. President,while 1have the floor1 must ask the
indulgenceof the Court to make one brief persona 1emark.
In his statementyesterday,Ambassador Sacirbey severaltimes
referredto theNazi Holocaust. To anypersonwho hasdirectknowledge
of what the Holocaustwas and what it wasintendedto achieve,suchstatementsare nothing shoro tf blasphemous.Nothingthathas occurred
sincein Europematchesthatunspeakable eventin Europeanhistory.
It remains, Mr. President, fomre to thankthe Courtand the
Registrarfor the couritesieonce againextendedto me. Thankyou,
Mr. President.
The PRESIDEiVT:Thankyou verymuch,ProfessorRosenne. The Court
has heard the Applicant Stataend theRespondent Stati en this
Applicationfor interirmneasuresof protection. It is not entirely clear
at the moment whatfurther oral proceedin masy or may not be desiredby
the Parties, so the coilvenientrocedureat the moment,1 think,is that
the Courtshouldretirefor 10 or 15 minutes whilst the Partiesare
consultedon that point. Thankyou.
The Court adjournedfrom 16.30 to 16.55. The PRESIDENT: Now we hear the further statement on behalfof
Bosnia-Herzegovina, 1 thinkfrom Professor Boyle.
ProfessorBOYLE: Mr. President, distinguished Membersof the Court,
May it pleasethe Court,yesterday 1 received the communication from
VladislavJovanovic, Federal Ministerfor Foreign Affairs of the rump
Yugoslavia. It did not botherme that it came in yesterday. 1 had a
look at it, and1 have somecommentsto make on this communiquéthat
Mr. ROS~M~ referredto.
First,the democratic basia snd legitimacyof the Governmentof
Bosniaand Herzegovinathat 1 represent,and of Our President,
His Excellency Alijy Izetbegovic,have alreadybeen describedin
paragraphs10 to 16 of the 20 MarchApplication. 1 am not going to go
through al1 thathere. The rumpYugoslaviatogetherwith its agentsand
surrogatesin Bosniahas attemptedto createan artifical "stateleti "n
our sovereignterritory under the name of the so-called"SerbianRepublic
of Bosniaand Herzegovina", in clear-cutviolationof United Nations
Charter Article II, paragraph4. That is the real problemof legitimacy
here, notthat of my Governrnent.His Excellency, President Izetbegovic,
is still recognizedby theUnited Nations as the legitimateHead of State
of the Republicof Bosniaand Herzegovina. President Izetbegovic 1
accredited AmbassadoS racirbey,who appearedbeforeyou yesterday,as the
Ambassadorand Permanent Representativ of Bosniaand Herzegovina to the
UnitedNations,and the United Nations acceptedthe credentialsof
Ambassador Sacirbet yo be the Ambassadorand Permanent Representativ of
Bosniaand Herzegovina. That shouldindicateto you the legitimacyof my
Governmentto representthe Stateof Bosniaand Herzegovina.
Likewise,President Izetbegovic personally accredi thedsame
Ambassador Sacirbeyw ,ho appearedbeforeyou yesterday,and me as theGeneral Agentswith Extraordinary and PlenipotentiaryPowersto the Court
on behalfof Bosniaand Herzegovina, and the Courthas obviously accepted
Our credentials. Otherwis1ewouldnot be standing beforeyou today. So
it is clear thatOur Government,Our President,Our Ambassadorsare al1
recognizedby the United Nationi stself.
As for theVance-Owennegotiations, they mus tf coursebe kept
separateand apart from the questio onf United Nationsrecognition. Only
the question of United Nations recognitioon Our Governmentis relevant
to theseproceedings. Furthermorde,spitewhat was said by the
Respondent, the Vance-Owen agreemh entnot yet come intoeffect. When
President Izetbegovi signed,he signed subjectto conditions that made
it very clear thatit wouldnot come into any legal effect whatsoever
until al1 the partieshad likewise signed, anadl1 the partieshave not
yet signed. And the President also attache ad 15-daydeadlineon the
signingof this document. Sos of today, this documentis effectivelya
legal nullity.
The truth is that it is the legitimacof the so-calledFederal
Republicof Yugoslavia(Serbiaand Montenegro)thathas been deniedby
the Security Council by the General Assemblyand agood deal of the
international comrnunity.Indeed,the General Assemblyhas treated the
rump Yugoslaviain the sameway that it treatedthe apartheid régimi en
Pretoria,namely,suspensionfromparticipation in the activitiesof the
General Assembly. That shouldrovidethe Courtwith some idea of the
degreeof contemptin which the worldholds the rump Yugoslavia.
Now, Our Applicationhas fully documented the responsibilo itythe
rump Yugoslavia for act of genocide, actsof aggressionand armed
attacks againstthe peopleand Stateof Bosniaand Herzegovina. In this
regard, 1 would emphasize especial lection F. Specific FactualAllegationof Acts of Genocide, paragraphs 32 to 83, and SectionI.
Specific Factual AllegationR selatingto the Conductof the Former
Yugoslaviaand/orYugoslavia(Serbiaand Montenegro),paragraph87A,
pp. 82-108.
Now also yesterday, 1 filed a SupplementarySubmissionin supportof
our Applicationand Requestthat updated thisSection I. This
SupplementarySubmissionsimply contained the news articlesthat 1 quoted
to you yesterdayfrom the New York Times and theBBC. It is very
short, very succinct, it wasnot intendedat al1 to tax your patiencebut
simply to put this in writingso that you could readit in the harsh
light of day. And thereporterfor the New York Times, this war
correspondent, Roger Cohen, said quite clearlyon 22 March 1993:
"While it is commonto see men on buses transforming
themselvesfrom civiliansintoheavilyarmed soldiersas they
cross into Bosnia,it is rare to witnessan operationso
prominently CO-ordinatedbetween Yugoslav and BosnianSerb
forces asthe offensivenow under way in the Srebrenicaarea."
That was on 22 March, and 1 have givenit toyou there in writing.
Likewiseagain, the BBC reported thatSerbianattackson the Bosnian
towns of Kovaceviciand Selimoviciwere backedup by long-range artillery
from Yugoslavian(Serbia andMontenegro) territory. That is the BBC, on
23 March.
Now, inthe United States,of course,the New York Times is
considered a newspaper of public record. Courts can take judicial notice
of facts in newspapers ofpublic record under the relevantrules of
evidence applicable in United States courtsand under appropriate
circumstances. And given the extraordinary nature of these
circumstances, for we have an armed conflict,armed aggression,genocide
going on, of coursewe have to rely upon reports bywar correspondents on
the scene to establish our prima facie fact in this case. What elsecan we do at this time? Certainlyon the merits - when we get there,if
we get there - we will havemore facts from other sources. Butas it
standsnow, this is the best we can do, and 1submit thatit is more than
sufficient. Now, theletterfromMr. Jovanovic also triet so Say that the Court
should indicate provisional measures agau instWell, there is no
credible evidence anywherein the public recortdhat the Governmentof
Bosniaand Herzegovina has committed actsof genocide against anyone.
Moreover, there has been no credible evidence submittted this Court
that Bosniaand Herzegovina has committed genocidoer aggression against
anyone. Therewere someintimations here made by counsel for the other
side,and thatis it. Where is the documentation? Where are the
reports? They are not there. You look at my Applicationand my
Supplementary Submissiona s,d you will see50 or 60 pagesof hard
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evidenceof what Yugoslavia has done to my peopleand my State. Andyet
if you look atthe record submitted on the otherside,you see nothing;
no facts, simply assertionn s, basis infact. So 1 submitthat thereis
not even a prima facie case of evident ce support anytype of
provisional measures against Bosn and Herzegovina.
1 do not believethat thereis a basis eitherin fact or in lawfor
the Courtto indicate provisional measures against the Repu oflBosnia
and Herzegovina. This Respondenthas not createdany prima facie caso ef
evidence orlaw againstus on any of theseallegations.Al1 we have
heard is some spurious allegations made h atrethisforum,and thatis
it. That is not evidence.
Duringthe courseof my oral submissionon 1 April, 1 amendedthe
Applicationto assertan additional jurisdictionalbasis forthe Court
premisedon the 8June 1992 letterfromMr. Milosevicto Mr. Badinter,
which 1 filedwith the Courton 31 March 1993. Again, 1 apologize for
the late filing. Thatletterwas not availablt eo me at the time1 filed
the Applicationon 20 March. Why was that letternot availableto me
before 20 March? Becauseof the barbaricaggression that thr eurnpYugoslaviahas inflictedupon my peopleand my Government. It is almost
impossiblefor me to communicatewith Sarajevo,with my President. That
is why1 have been giventhe powersthat 1 have to be here. These things
take a little time; 1did the bestthat 1 coulddo in the circumstances,
but for reasons 1 will explainin a littlewhile, 1 certainly believe
that this letterdoes providejurisdiction for the Court to consideral1
the claimsin Our Application.
As for the Aegean Sea ContinentalShelfcase, 1 thinkthere are
significant difference betweenthe communiqué involved ther and the
letterhere. 1 submitwe will beable to developthosedifferences if
and when we get to the merits. Buremember,the objectiveof the rump
Yugoslaviais to destroyus, to makesure thatwe never get to those
merits,to eliminateus as a sovereign nation State,as a Memberof the
UnitedNations,and to exterminate Our people. This is exactlywhy we
are askingfor provisional measuret so preventthis fromhappening,to
allowus to get to the merits.
Al1 the othermat.tersraisedin the letterby Mr. Jovanovicfa11
within the domesticaffairsof Bosniaand Herzegovinaand are therefore
protectedby ArticleII, paragraph 7, of the UnitedNationsCharter.
Let me turn againbrieflyto the commnts made by the Chargéfrom the
rump Yugoslavia, statintghat this isa civilwar inBosnia-Herzegovina.
Again,as 1 developedin the Applicationand Our oral submission
yesterday,this is an outright caseof internationalaggression
perpetratedby the rumpYugoslavia against Bosni and Herzegovina.
Nothing could be clearerand 1 have established thatin the Application,
in the Supplementary Submission and the oral proceedings.
Professor Rosennedoes not likethe fact thatyou have beeninundated
with facts. But that is what theseproceedings are al1 about,to provide
you with as many factsas 1 can for you to make up your mind.1 believethere is more than a prima facie castehat therumpYugoslaviais
committingaggressionagainst Bosnia and Herzegovib nath directlyand
indirectlyby means of agentsand surrogatesin Bosnia andelsewhere.
Again, in the SupplementarSyubmission1 filedyesterday,it was simply
intendedto put in writingexactlywhat 1 read to you from the podiumat
that time.
As for the comments made by Professor Rosenn he,firstmentioned
the Lockerbie case. What happened in thoseproceedings? Libya fileda
case on 3 March lastyear and the Court granted ahearing, 1believe
startingon 24 March. While the Courtwas meeting atLibya'srequest for
w
an indicationof provisional measurest ,he two RespondentGovernments
decidedto usurp the power and authorityof this Court by gointgo the
Security Council andtryingto ram through a resolution againL sitbya
without givingthe properrespectto the Court to make adecisionon its
requestfor interimmeasures. As you know, as you were meetinghere in
The Hague,the twoRespondent States thenbegan the hearings inthe
Security Council and got that resolutionadoptedshortly afteryou had
adjourned.
If you remember,in the opinionscoming outof the Lockerbiecase
on provisionalmeasures, 11 Judges made it very clearthat in the absence
of this attemptby the two respondentStatesto move the way they did,
you wouldhave giventhe provisional measuresto Libya that Libya
requested. Therewere very strong opinions expressedby manyof you in
your opinionsin the Lockerbie case as to how you felt aboutwhat was
done at the Security Council while thmistterhad been submittedto
you; the two RespondentStatesdid not botherto wait foryour decision
to come down.
1 thinkthat thatsentiment makes it very clearthat in the current
circumstancesyou should feel no hesitationto act immediatelyon ourrequest for provisiona measures. Pou have an independentresponsibility
under the termsof the Charterto move forwardand to grant our request
and not to worry aboutan attemptto be madeat the Security Council to
pre-emptyour abilityto exerciseyour powers under the Charter.
As for Professor Rosenne's argumeno tn the Vienna Conventionon the
Successionof States inRespectof Treaties, 1 would refer you to the
proceedingsof the Badinter Commissiot nhat are reportedin the
November1992 issueof International Legal Materials - 1 referredto them
yesterday. In thereyou will see, inthe Badinter Opinions, that al1 of
the partiesto the International PeaceConferenceon the Former
Yugoslaviahave agreedthat they wouldbe boundby the terms ofthe
Vienna Conventioo nn Successionof Statesin Respectof Treaties
(International Leqal Aaterials,p. ?). Moreover, of courset ,he rules
of the Vienna Convention alsc oodifycustomary internationa law on the
questionof State successiow nith respectto treaties. 1 see no problem
at al1 with this Court applying thr eulesof the Vienna Conventionon
State succession,especiallywhen the rump Yugoslavia has agreedthat
they are fully prepared to be boundby theseruleswith respectto these
questionsof State succession betwee the rump Yugoslavia and the other
now independent republics. Professor Rosenne said thathe had problems with provisional
measures1, 2 and 3. He did not know exactlywhere theyhad comefrom.
Well, they came almost verbatim from the provisional measuregivenby
this Court in theNicaragua case. They werepatternedon that,almost
line by line. That isapparentto anyonewho looks at the first
three paragraphsof the provisionalmeasures. And1 guess1 would submit
that if you were preparedto give the first three provisional measur tos
Nicaragua, then,a fortiori,you shouldbe preparedto give provisional
measures1, 2 and 3 to Bosniaand Herzegovina. A situationfar more
serious,as 1 pointedout yesterday, notjust involvingoutright
aggression,direct and indirect, by one State against another S butte
also acts of genocidewithinthe meaningof the GenocideConvention.
Now, Professor Rosenne alsotalked about resolution713. 1 think 1
decisively established yesterdt ayatwhen resolution713 was adopted,no
one contemplated Bosni and Herzegovinabecauseour Statedid not exist
at that time. It did not come intoexistence until 6March 1992. The
arms embargowas appliedon the formerYugoslavia, not upon us.
Moreover,it wasappliedwith their consent ana dt theirrequest. Now,
if theformer Yugoslaviw aants to imposean arms embargoupon itself,
that is its business,that is fine. But the Security Council did not
even considerus at the timebecausewe did not exist.
As for thesubsequent routine reaffirmanc and whatever, wellthese
are naturalthingsthat security councild so in resolutionsthat they
adopt,they always reaffirm their previor ussolutions. But thewres
never an indicationthat anyonehad considered thq euestionthatwhen
Bosniaand Herzegovina became independent on 6March, or whenit became a
Member of the United Nationson 22 May, that at that pointit had the inherent rightof self-defence, recognizein the United Nations Charter,
Article51, and again "Nothingin the present Charter", anthatmeans
Security Council resolutiot nso,
"Nothingin the present Charter shall impat ire inherent
rightof individualor collective self-defenc if anarmed
attack occursagainst aMember ofthe United Nations, untit lhe
Security Councilhas takenmeasures necessary to maintain
internationalpeaceand security."
And it is obviousthat,at leastso far, the Security Council has not yet
takeneffectivemeasures necessary to maintaininternational peacaend
securitywith respectto Bosnia and Herzegovina. We are stillbeing
attacked, even as reportedby theNew York Times and theBBC war
correspondents righton the scene,we are being attackedtoday. Our
people are being killea dnd exterminated.
And this bringsus to why we are here for provisionamleasures. If
we cannot defendourselves,we will be destroyed bythe rumpYugoslavia
beforewe ever getto themeritsof our claim. That is the entire
purposefor whatthey are doing,to destroyus completely asa Stateand
as a people. And we are comingto you on points4, 5 and6 of
provisional measuretso basicallydeclarethatwe have a rightto defend
ourselves inthe hope thatwe will at some point getto the merits of
this case. But ifyou deny us 4, 5 and 6 1 doubtvery seriously thatyou
will see us here a year fromnow to argue the case on the merits.
Certainlythat is the objective ofthe rump Yugoslavia.
And again,1 pointout, the Security Council's powers ar limitedby
Article51. The word "nothing"means SecurityCouncil resolutions as
well. Andlikewisethe powersof the Security Councilunder Chapter7
are also limitedby Article24, paragraph 2. Our rights asa sovereign
nation-Stateto defendourselvesindividually and collectivelymust be
respectedand we cannotbe denied theserights by ambiguous SecurityCouncilresolutions that were intendedto apply to the former
Yugoslaviaat its request andwith its acquiescence. We have always
maintained that these resolutionsdo not apply to us, and they cannot
legally applyto us, they wouldviolateArticle51 and Article 24,
paragraph2.
Now again, to go back to the 8 June letter,and again 1 apologize
for thehaste, as it were, insubmittingit. 1 submittedit as soon as 1
couldupon my returnhere to The Hague. We believe that this letter
certainlyis distinguishable from th eegean Sea case. Here you had a
forma1 letter submittedby the rump Yugoslaviato Mr. Badinteras part
WV
of international proceedings knowing fullwell that this letterwould be
turnedover to Our Government,which it was, for Our consideration which
we have done. We have considered theletterand 1 am here to Say, as 1
said yesterday,that we accept the offer of the rump Yugoslaviato submit
al1 Our legal disputesto this Court unequivocally. Awde have
submittedthem tothis Court,al1 the disputes set forth in Our
Applicationand Request for provisional measure and 1 believe that this
establishesan additionaljurisdictional basis for this Courtto consider.
Of course,these issues will needto be briefed in more detailon
the merits when we get therebut again 1 submit ifyou do not give us
these provisional measures we will not a beound tocome back hereand
argue this case on the merits.
Now perhaps Professor Rosenne misundersto mydargumenton the basis
of Article VI11 of the GenocideConvention. 1 was not suggestingthat it
providedan additionaljurisdictional basis for the Court, rather wha 1t
was suggestingis that ArticleVI11 providesa basis for the Court to
grant Our request for provisional measure in full and as soon as
possible. And 1 would encourage you to go back and read the termsof
ArticleVI11 of the GenocideConvention. 1 realizewe are makingan exceptionalrequest buttheseare
extraordinary circumstances :enocideand acts of aggression,and
Article VI11 was intendedto deal with such extraordinary circumstances
as these.
Now again,Mr. Rosennequoted the28 March so-called agreement.
Again 1 want to c1arif:the record: Mr. Jovanovicsaid the same thing,
there is no 28 March ceasefiragreement. There is a document signed in
New Yorkby President Izetbegovicwith conditionsattached. Andone of
the conditionsis that thedocumentwould haveno legal significance
unless al1 of the partiessignedthat documentand, so far, one ofthe
partieshas refusedto do so. Moreover, President Izetbegovic also
attached a15-day time periodin whichthe otherparty is permittedto
sign or not sign the agreement. But thagreementhas not yet come into
effect. There is no s.uchagreement. Professor Rosenne also mentioned the opib nionudge Shahabuddeen
in the above case andagain1 think thatia fine, 1would just be happy
to read it againbecause1 think itis very eloquent and righo tn point
If the summariacognitio,which is characteristi of a
procedureof thiskind, enabledus to take into account the
possibilityof the right claimeb dy the GermanGovernmentand
the possibility of the dangerto which that rightwas
exposed, 1 should findit difficultto imagine any request for
the indication of interim measures morjeust, moreopportuneor
more appropriate than the onewhichwe are considering",
(emphasisas in the original)
againquoting from JudgeAnzilotti.
And as 1 said yesterday,it is difficultto imaginea request for
interim measures thai ts more just,more opportuneor moreappropriate
than the Request for provisional measub resBosnia and Herzegovina.
Professor Rosenne concludh eds commentsby makinga referenceto
the Nazi Holocaust. 1 thinkit is importantto keep this inmind. The
Genocide Convention came oo ut the holocaustthat the Nazi'sinflicted
upon the Jewishpeople,the Polish people, the Russianpeople,the
gypsies, and otheri sn Europe. This led to the Nuremberg definition of
Crime against Humanity thatis why Crime against Humaniw tys put into
the Nuremberg Chartet rodeal with the mass exterminatioonf racesof
peopleby the Nazishere in Europe. Andit was the basis of that then
that ledthe General Assemblt yo codifythe Nuremberg Crime against
Humanity,the experience of the holocaust in the Genocide Convention.
Which is why 1 was suggesting yesterday tha you should interpretthe
Genocide Conventioi nn referenceto the Nazi Holocaust,in referenceto
the Nuremberg Crime against Humanita y;d it is certainlytrue thatwe
are not yet at apoint where the rump Yugoslav has killed outright the
numberof peoplethat theNazis killed duringthe Second World War. But
that is why we are here before this Court,to preventa holocaustof suchenormousdimensions and proportions for an entireother raceof people -
the peopleof Bosniaand Herzegovina. There are4.5 millionpeoplein
Bosnia and Herzegovin and therumpYugoslavia wants to exterminate them
all. They have not yet succeededin doingthat,but theywill unless you
giveus Our provisional measures. They will succeedt ,heywill destroy
us, and we willneverget to this caseon themeritsunlessthis Court
givesus the six itemsof provisional measures thw athave requestedin
fulland as soon aspossible.
Thankyou verymuch onceagainforyour courtesyand consideration
and againmay God bewithyou as you deliberate on our Request.
The PRESIDENT: Thankyou ProfessorBoyle. Now that concludes1
thinkthe presentation for Bosnia-Herzegovina Yugoslavia(Serbiaand
Montenegro) has of course arightto replyand wishesto exerciseit 1
believe,and is prepared to do so thisafternoon. It might beconvenient
perhapsif the Court were to retirefor 10-15minutesand thenreturnto
hear the reply.
Thankyou verymuch.
The Court adjournedfrom 17.25 to 17.35 The PRESIDENT: Professor Rosennep,lease.
ProfessorROSEFINE:May it please the Court. Thankyou,
Mr. President. 1 will Say that thedelegationof the FederalRepublicof
Yugoslaviavery much appreciatesyour courtesyand that of the
distinguished Members ofthe Court in agreeingto continue thisSitting
beyond the accustomedhour. 1 will try andbe very brief,and a little
bit probably incoherent but 1 thinkthatyou will excuseme, and 1 also
hope that Our opponentswill excuseme, giventhe speedwith whichwe are
conducting theseproceedings.
1 have to say in al1 franknessMr. President,that theinteresting W
statementmade byProfessor Boyle does not causeme to retractin any way
anythingthat 1 said earlieron this afternoon. 1 do not thinkhe really
refuted anyof the main contentionsand conclusionswhich 1 had the
honour to presenton behalfof the Governmentof Yugoslaviain accordance
with instructionswhich 1 received. 1 really onlywant to mention a few
pointswhile maintainingthe integrityof the observationswhich 1 and my
CO-Agentboth presentedthis afternoon. We do not wishto prolongthese
proceedings unnecessarily.
On one central point,1 wish to reiteratethe view ofthe Federal
Governmentof Yugoslaviathat thesituation which has developedin Bosnia w
and Herzegovina is a situation ofcivilwar with al1 which that entails.
In that connection,it is Our impressionthat the Applicants are
persistingin their inabilityto see a distinction betweetnhe actionsof
the FederalGovemment and thestandpointof the Federal Governmeno tf
Yugoslavia itself,and theactionsand thestandpointsof the Serbs in
Bosnia-Herzegovina.As 1 said earlieron, accordingto the information
which 1 have they constitutesome 34 per cent, one thirdof the
populationof that area. This distinctionis absolutely fundamental, an we tooknote of the
fact that Professor Boyleearlierthis afternoon referredal1 the time to
some unnamedthirdParty. We assumethatwhat he had in mind was the
Serbsof Bosnia. This distinction, Mr. President, is also the
explanation for the observations which were mad by the Minister for
Foreign Affairs in the communication yesterday ,o which ProfessorBoyle
referredand which 1 also in effect incorporateidn the observations
which 1 made, both in :relationo the provisional measuresbeing
requestedby the otherside and in relationto the kind of provisional
measures which we thinYrcould be appropriatien the eventuality thatthe
Courtshould feelthat it oughtto indicateprovisional measures despite,
or notwithstanding, the view whichwe continueto hold: thain this
particular case, so long as the Security Councilis actuallyactingunder
ChapterVI1 of the Charter,then it would be premature and inappropriate
for theCourt to indicate provisiona leasures,and certainlyprovisional
measuresof the typewhich have been requested.
Mr. President, Membersof the Court, 1 couldnot really follow al1
that Professor Boyle said about facts. We havegot adocument, which, as
1 have said,we only receivedhere in fullyesterday morning, and which
consists of 70 pagesof a closelyprintedstatementcalled "Application
InstitutingProceedings".Mr. President, with al1 respect- 1 am sorry
to raisethis point,it is a technicality, an1 d do notwant to base Our
case on technicalities,but 1 have to becauseit has beenforcedon me -
Article 38 of the Rulesof Court,paragraph 2,dealingwith an
Application Statesthat an application"shallalso specifythe precise
nature ofthe claim," - 1 am not going to Say anything aboutthat,
Mr. President - "togetherwith a succinct statemenotf the factsand
groundson which the claim is based". Mr. President, 1 reallydo not think thata documentwhich is
70 pages long, closely typei dn print,is by any stretchof the
imagination"a succinct statemeno tf the factsand groundson which the
claim is based". 1 would therefore ask the Court,in view of the
statementswhichwe have heard about the facts, alt so keep that aspect
in mind. As 1 said, 1 do not want to get involved tomouch in these
technicalities, bu t have to because 1have beenforced intoit. The
place for 70 pages of facts - if they are facts,1 am not admittingthat
they are, that is another matter - is in the Memorial,and Article 49 of
the Rules of Court makes this perfectp lyain: "A Memorialshallcontain
*
a statementof the relevant facts". And it is in the Counter-Memorial,
Mr. President, that the Responden atn,unwilling Respondent- or, rather,
a Respondentwho has been brought before the Court in circumstances
unknownto it, unforeseenby it; it is not an unwilling Respondena ts
that expressionis frequently used, becauseas 1 have indicated we do
thinkthat the jurisdiction of the Court is limited, bu te are prepared
to continueto litigatethe casewithinthe limitsof the jurisdiction as
we understand it. It is in thosecircumstances that the Counter-Memorial
of the Respondent, given time to collect thematerialand so on,shall
containan admission or denialof the facts.
We are now being accusedvirtuallyof notproducing any facti sn-
what is it, 48 hours, 72 hours,somethinglike that - in answerto
70 closely-typed pages. And, by the way, more is coming; we have
received another big envelopethis afternoon, which,quite frankly,
Mr. President, 1 have notyet had time even to open. 1 do not know what
is in it. Are we going to get anymore envelopes, before the Court
rendersits decisionin thiscase? 1 am just wondering, becausewe aregoing to be comingbackwardsand forwardshere, 1 suppose,with new
envelopeseveryday.
So, 1 would ask the Court,very respectfully, to keep this aspect
also in mind. We intendto file a Counter-Memoriawlhen the timecomes
for us to do so, and within the circumscriptionof the jurisdiction of
the Court,howeverit is determinedwhen the timecomes.
1 want to Say somethingabout the evidence.Mr. President,1 do not
know anything about therulesof evidencein United Statescourts; 1 am
quitepreparedto leavethat to ProfessorBoyle. 1 do not know whether
the New York Post is admittedas evidence,or Playboy,or the
New York Times. I would liketo know much more aboutit beforea flat
assertion is made thatbecausesomething appears in theNew York Times,
it is evidence. If the New York limes - and with al1 respectto the
New YorkTimes - or anyotherTimes,or Le Monde,or theFrankfurter
AllgemeineZeitung,whichever one you like - is a newspaperof record,
it is a newspaperof recordfor the documentswhich it prints,not for
journalists'reports, however eminent thosejournalistsmay be.1 have alwaysunderstood the New York Times as a newspaperof record
for thedocuments which it containsand they may be admittedas evidence
and probably coulb de, evenin this Court. But, as for a wild assertion
that becausethe New YorkTimes is an instrument,is a newspaper of
recordin the courtsof the UnitedStates,State courts or federal
courts, it is relevant andcan thereforebe admittedhere, 1 thinkthis
proposition only has to be stated,Mr. President, forits unacceptability
to becomeevident.
Now, Mr. President, 1 want to Say something about the
Security Council and the interpretationof the Charter. 1 would like to
w
remindProfessor Boyle, with respect,of the underlying consideration in
the San FranciscoDeclaration (1 do not havethe referencein front of
me) on the interpretatioo nf the Charter. If 1understandit correctly,
and 1 am speakingfrommemory,Mr. President- and you will forgiveme
for that - the Declarationbasicallylays down that each organ ofthe
UnitedNationsitself interprett she provisionsof the Charter which
referto it. If any organ wantsother interpretation of the Charter,if
it wants an interpretationfrom this Court,for instance,the proper way
for it to do it is by way of a request foran advisoryopinion,and 1
would remindProfessorBoyle,if 1 may andwith respect,that the
General Assembly, for instanc has done this in relationto specific
Articlesof the Charter.Article 4 has beeninterpreted by thiC sourtat
the requestof the GeneralAssembly. Article17 has beeninterpreted by
this Court,alwaysin concrete circumstances not in the abstractof
course.
Now the Security Council,as far as 1know, norany Memberof the
SecurityCouncil, asfar as 1 know, has notqueried theinterpretation of
resolution713 on the arms embargo, whethea rs originallyadopted beforeBosnia andHerzegovinabecame Members of the UnitedNations oras
repeated and deliberatelyreaffirmedlater. Now, Mr. President, 1 think
you are aware ofthe fact that 1 personallyhave had a considerable
amountof experiencein the Security Council an d know that
Professor Boyle is also quite familiarwith a greatdeal of the working
of the SecurityCouncil. If the Security Councilspecifies,by number,
resolutions, which it is recallingin the preambularpart of its
substantiveresolution,it does so deliberately, it is not a matterof
routine. The Security Councih las other formulas fowrhat
Professor Boyle regard as a mere routine, for instance, recalling
previous resolutiono sn thesubject,thatmightbe - 1 am not even sure
about that - becauseas 1 said,the languageof the Security Council
resolutions is in fact verycarefullynegotiated. They are not thrown
out; it is not like theresolutionsin the General Assembly and
one smallpoint to indicatethe difference,the Secretariathas a general
power under the rulesof procedureof the GeneralAssembly,to edit them
and ifyou look at the printed versionof resolutionsof the
GeneralAssembly, inthe officia1recordsof the General Assembly, they
are quitedifferentfrom the textas adoptedby the GeneralAssembly
itselfand published in the farnouspress releasewhich
UnitedNations-goers lik eyself cal1 the round-upbecausethey are
editedby the Secretariat.On the otherhand,Mr. President, if you look
at the printedversionof resolutions of the SecurityCouncil, which come
out year by year, they are identicawith the textas adoptedby the
Security Council inal1 the officia1languagesand theworking languages
of the SecurityCouncilwhich are thesamenow. So let us not haveany
more talk about routine expressionsust thrownin thoughtlessly because
that is the routine.'There is no such thing in resolutionsof the
SecurityCouncil. To anotherpoint,Mr. President, nothing that Professor Boyle has
said causesme to change one iota of what1 suggested would be the rule
of law applicable to the letterof 8 June 1992 as far as concernsthe
jurisdiction of the Court. The jurisdictionof the Court,in conformity
with that letter,is not conferred bythe acceptance by Bosnia and
Herzegovinaof the offer,the offer is to submit acase to the Courtwith
agreedtermsof reference, agreemen otn what the question isthat the
Court should decideand as 1 maintain,as 1 said earlier, 1 thinkthat
the situation 1 so submitin regardto that letteris identicalin
substancewith the situation whichthe Court faced in the Aegean Sea
case.
On the question ofaggressionand the somewhat wild charge shich
have beenbandiedabout this courtroom, 1 would just like to Say one
thing. 1 Say it with respect andwith perhaps a reservatio nue to the
time constraints but, asfar as 1 have beenable to see on the filethat
1 have hereon the table, 1 did not find thatword, the word aggression,
in any of the resolutions of the SecurityCouncil.
As 1 Say, 1 am makingthis statement with reservations, 1 hope 1 am
not misleadingthe Court,1 certainlydo not intendto. But in the
perusalwhich 1 have made in the intervalof the resolutions, and 1 have I
them al1 with me here, 1 did not find that word. If 1 am wrong,then 1
in advancewould acceptof course a correction fro the Courtor fromthe
other side,and expressmy apologies.
The effortsof the Security CouncilM ,r. President, aredirected
towardsone aim,and one aimalone,and that is to restore peacein the
area. If it has not yetachieved that aim, it is not for want of
trying. It remains actively seise of the matterand is actingunder
ChapterVII. This has not been refutedby ProfessorBoyle and 1 venture to submitthat this is a central factowrhich should weighwith the Court
when it comesto deliberate and render itsdecisionon this request for
interim measuresof protection.
The last point 1 want to mentionis,Mr. President,the question of
the legalityof the FederalGovernment, the representative qualo itythe
FederalGovernmentof Yugoslavia. Mr. President, al1 the
Security Council dii dn thatvery curious resolutiow nas to say that the
FederalRepublicof Yugoslavia cannot continue automaticallythe
membershipof the former Socialist FederalRepublicof Yugoslavia. 1 do
not quiteknow really what tham teans. The resolutionof the
General Assembly, as 1 read it, does not entirelyfit intothat pattern,
maybe 1 have misreadit. But thecuriousthing is that Yugoslaviais
actually continuini gts membershipof the United Nations and1 have
beforeme here - 1 have to file it1 supposeas a new document, 1 assume
1 may be allowedto read it - signed byDr. Boutros Boutros-Ghali the
Secretary-Generao lf the UnitedNations,dated 26February1993 addressed
to H.E. Mr. [inaudible]F ,ederal Ministerfor ForeignAffairsof the
FederalRepublicof Yugoslavia, Belgrade, invitingthe FederalRepublic
of Yugoslaviato participatein the United Nations Conferenc on Human
Rights, whichis going to take placein Viennanext June, as a result of
a decisionof the GeneralAssembly. 1 do not thinkthe Secretary-General
would make a mistake. He has addressedthis letterto the Federal
Minister for ForeignAffairsof the Federal Republic of Yugoslaviaand
signed it himself,BoutrosBoutros-Ghali. 1will file this document
duringthe weekendif you want me to,Mr. President,if you think 1
should,and 1 thinkthat is simply adequate to show that thelegalityand
continuedmembershipof the Federal Republic in the United Nationsis a
matternot opento any furtherdiscussion. 1 must Say that these are disjointedand perhaps incoherent remarks,
Mr. President; we are al1 extremelytired. 1 againwish to thankyou
very much for the courtesy you have extended tous and evenif we have
been a little bithard with each other, 1 would extendmy expressionof
appreciationto the other side for theway in which they also have
conducted these proceedings.
Perhapsit is an indication that having non-nationals ple indcases
of high tension may assist in the administration of international justice
by reducingto a very large extent, 1 hope, the persona1 involvemeno tf
Counsel appearing before this Coui rt the substanceof the case. Thank
you, Mr. President.
The PRESIDENT: Thank you, ProfessorRosenne. Judge Guillaume.
M. GUILLAUME :Merci, Monsieurle Président. J'auraissouhaité
poser une question à chacunedes Parties. L'agentde la République de
Bosnie-Herzégovine a mentionnécet après-midi dans sa plaidoirie l'avis
no 9 de la commission d'arbitrage de la conféren pour la paix en
Yougoslavie,en ce qui concerne le problème dl ea succession. Le
paragraphe2 de cet avis que j'ai sous les yeux dit ceci :
"Le phénomènede la successiond'Etatsest régipar des
principes de droit international dont s'inspirent les
conventions de Vienne du 23 août 1978 et du 8 avril 1983 que
toutes les républiqueo snt acceptéde retenir comme base de
leurs discussions relatives à la successiond'Etatsdans le
cadre de la conférencp eour la paixen Yougoslavie."
Et ma questionpour chacunedes Partiesest la suivante : Pourriez-vous
produiresous vingt-quatreheures leou les documents,s'il en existe,
par lesquels la Bosnie-Herzégovin et la Yougoslavie(Serbieet
Monténégro) ont accepté éventuellement les obligations mention auées
paragraphe 2 de l'avisno 9 ?
Je vous remercie, Monsieul re Président. The PRESIDENT: Thank you, JudgeGuillaume. The answerto that
questioncouldbe made in writingas soonas possible please - with
advantage,tomorrow. Yes, Mr. Boyle,do answernow if you wish.
Mr. BOYLE: Your Honour,thereis absolutelyno way 1 couldproduce
that documentin 24 hours. 1 cannoteven communicate with Sarajevo. We
are being bombed and a.ttackedy the rump Yugoslavia. The rump
Yugoslaviaand its agents and surrogatesbombardthe Presidency. 1
cannoteven communicate with myPresident, let alone the Foreign
Minister. 1 cannot get documentosut of Sarajevo. That is why 1 could
not producethat letterof 8 June until 1 did on Monday. If 1 had had it
before Monday1 wouldhave givenit to you. 1 am been sent here with
extraordinary and plen.ipotentiarpowersas the persona1 representative
of President Izetbegovi with the onlyinstructions "Goodluck!". Now
that indicatesto you the severityof the situationin Sarajevo. 1 would
certainlytry to get that documentbut 1 doubt very seriousltyhat 1
couldget it withina periodof weeks,so 1 would encourage you for the
purposeof these interimproceduresto moveforwardon the good faith
assertionby the Badin.terrbitration Commissio that this agreementhas
been made and theyhave the document. 1 do not haveit and thereis no
way 1 can get it verysoon. That is due to the conductof the Respondent.
The PRESIDENT: Thankyou, ProfessorBoyle. ProfessorRosenne.
Mr. ROSENNE: Thankyou, Mr. President. 1 am not going to makea
politicalstatement. 1 appreciate verymuch the reasonsbehind
Judge Guillaume's questioannd 1 appreciatevery much why he would like
the answerwithin24 hours. With al1 respectto Judge Guillaume and to
Membersof the Court,it is the weekendand 1 would like,as thePresidenthas said,with respectand if you agree, Sir,thatwe would
supply what documents ar relevantas soon aspossible,which 1 suppose
wouldbe around the middleof next week.
The PRESIDENT: Yes, thankyou verymuch.
It remains onlyto thanktheAgentsof the two Parties forthe
assistance theh yave givento the Court anbdy their observation on the
Requestfor the indicatioo nf provisional measure sn thiscase. In
accordance with the usualpractice, 1 requestthemto remainat the
disposa1of the Court for any further assistai ncemayrequire. With
thatreservation, 1 declarethe present oralproceedings closed.
The Courtwill giveits decisionon the Request for the indication
of provisional measure as soon aspossiblein the formof an Order,
which will be readat a publicsittingof the Court.The dateof that
sittingwill benotifiedto theAgentsof the Parties in due course.
Thankyou verymuch.
The Court adjourned at6.30 p.m.
Audience publique tenue le vendredi 2 avril 1993, à 15 heures, au Palais de la Paix, sous la présidence de sir Robert Jennings, président