Audience publique tenue le jeudi 26 août 1993, à 15 heures, au Palais de la Paix, sous la présidence de sir Robert Jennings, président

Document Number
091-19930826-ORA-02-00-BI
Document Type
Incidental Proceedings
Number (Press Release, Order, etc)
1993/35
Date of the Document
Bilingual Document File
Bilingual Content

InternationalCourt Cour internationale
of Justice de Justice
La HAYE
THE HAGUE

Public sitting

held on Thursday 26 August 1993, at 3 p.=., at the Peace Palace,

President Sir Robert Jennings presiding

in the case concerning Applicationof the Convention on
the Prevention and Punishment of the Crie of Genocide

(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))

Requests for the Indication of Provisional Measures

No 2

-

VEFLBATIM RECORD

Audience publique

tenue le jeudi 26 août 1993, à 15 heures, au Palais de la Paix,

saus la présidence de sir Robert Jennings, Président

en I'affaire relative à l'Application de 1s convention pour
la prhvention et la répression d~ crime de génocide

(Bosnie-Herzégovinec. Yougoslavie (Serbie et ~onténégro))

Demandes en indication de mesures conservatoires

no 2

COMPTE BERDUPresent:

PresidentSir RobertJennings
Vice-PresidentOda
Judges Schwebel
Bedjaoui
Ni

Evensen
Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ajibola
Herczegh

Judges ad hoc Lauterpacht
Kreca

RegistrarValencia-Ospinaprésents:

Sir RobertJennings, Président
M. Oda, Vice-Président
MM. Schwebel
Bedjaoui

Ni
Evensen
Tarassov
Guillaume
Shahabuddeen
AguilarMawdsley
Weeramantry
Ajibola,juges
Herczegh,juges

Lauterpacht,
Kreca, juges ad hoc

M. Valencia-Ospina, GreffierThe Govexnment of the Regublic of Bosnia and Herzegovina is represented
by: :

H. E. Mr. MuhamedSacirbey,Ambassador and Permanent Representative
of Bosniaand Herzegovinato theUnitedNations;

Mr. FrancisA. Boyle,Professorof InternationaL law,

as Agent;

Mr. Phonvan den Biesen,Advocate,

Mr. Khawar Qureshi, Barrister,ngland,

as Advocates and Counsel;

Mr. MarcWeller,Assistant Lecture rn Law,Universityof Cambridge,

SeniorResearch Fellowof St. Catharine'sCollege, Cambridge,

as Counsel.

The Government of the Federal Republicof Yugoslavia (Serbia and
Montenegro) is represented by:

Mr. RodoljubEtinski,Professorat the Schoolof Law,Novi Sad
(Yugoslavia),

Mr. DjordjeLopicic(LL.C.),Chargé d'affaire a.i. of theEmbassy
of the FederalRepublicof Yugoslavia to the Netherlands,

as Agents;

Mr. ShabtaiRosenne,AdvocatefromJerusalem(Israel),

Mr. MiodragMitic (LL.C.),ChiefLegalAdviserof the Federal
Ministryof ForeignAffairs,

as Counsel and Advocates.Le Gouvernement de la g os nie-~erzégoviest représenté par :

S. Exc. M. MuhamedSacirbey,ambassadeur et représentant permanent
de la Bosnie-Herzégovina euprès del'organisation des
NationsUnies,

M. Francis A. Boyle,professeurde droit international,

comme agent;

M. Phon van den Biesen, avocat,

M. Wawar Qureshi, avocat,

comme avocats et conseils;

M. Marc Weller, Assistant Lecturerin Law à l'Universitéde
Cambridgeet Senior Research Fellow of St. Catharine's College,
Cambridge,

comme conseil.

Le Gouvernement de la République fédérativede Yougoslavie (Serbieet
~~onténégro)est représenté par:

M. RodoljubEtinski,professeur à la Facultéde droit,Novi Sad
(Yougoslavie),

M. DjordjeLopicic(LL-C.),chargéd'affairesa.i. de l'ambassade de
la République fédérative de Yougosla vixePays-Bas,

comme agents;

M. ShabtaiRosenne,avocatau barreau de Jerusale( mIsrael),

M. MiodragMitic (LL.C.),conseillerJuridiqueen chefdu ministère
fédéraldes affaires étrangères,

comme conseils etavocats. The PRESIDENT: Pleasebe seated. Now we hear the BosnianReply.

Mr. Sacirbey.

Mr. SACIRBEY:Thankyou Mr. President. Mr. President,

distinguishedMembersof the Court,1 ask foryour understandinbecause

after myReply1 willhave to leave for a meetinwith the Ministryof

this country,the Netherlands,nd 1willmakemy Replyrathershort.

May it please the Cour, do not wishto strainyour patiencefor

too longin responseto the commentof Mr. Miticand Mr, Lopicic. 1 am

the PermanentRepresentativof the Republicof Bosnia and Herzegovina

beforethe UnitedNations. 1 am so accredited.1 do notrepresent a

formerrepublicas 1 do notrepresentthe so-calledrepublic. Our

republic representsis represented, by Muslims,rbs,Croats and

others. We pride ourselveosn beinga pluralistic, multicultural

Society. The militarythatdefendsour countryis one in which Serbs,

Muslimsand Croats serveto defendSerbs,Muslims andCroats. My own

missionin IJewYork hasservedMuslim,Croat,Jewishand othermembers.

Bosnia and Herzegovinas a defined politicalnd geographiunit has

existed forapproximately theast thousanydears; as a kingdom,as a

province,as an autonomistegionor republicin the OttomanEmpire after
-
the Hungarian Empire orhe former YugoslaviaI.n factunderthe Berlin

Congressit was given speciastatus. Its bordershave beenwell defined

for at least the lastentury.

The questionsthatMr. Miticand Mr. Lopicic wantto raiseregarding

our legitimacyinbordersare in factthemotivationto promotethe

genocidethathas boen broushtbefore thisCourt. 1 thinktheyare

rather irrelevant buthe factthat theybringit before the Court

thinkis relevant. The Serbiandelegationwantsto create the impressio of a civil war

when, in fact,this is a war ofaggression andgenocide. Theywant to

talk about victimo sfal1 ethnicities- yes,many Serbs also sufferm,any

Serbs are murderedby fellowSerbsin the attemptto protect non-Serb

neighbours or resistthe fascistpoliciesof theirGovernment.

Allegations of the victimizatioonf individuaSerbs are madeto justify

the crimeof genocideby the Republics of Serbiaand Montenegro.

1 am not hereto defendany paramilitaryunit or any individual

responsible for crimes. Thoseindividuals,if in facttheyare

responsible,will bebrought before theWar CrimesTribunal when it is

established in The Hague. 1am hereto speakon behalfof the

Government, that actively representsl1 ethnicities anddemandsthe

protection of al1 membersof Our societyof al1 ethnicities.1 also

representa Government whosepopulation unfortunatelyis the victimof

genocide.

We cannot and shoulndot inanyway compare independen acts of

violenceto a systematic campaig of genocidepromotedand executedby

the Serbianand Montenegran Governmen and its agentsin the Republicof

Bosnia andHerzegovina.Dr. Karadzic,an agent supported by th Republic

of Serbiaand Montenegroin our country,has said thatMuslims and Serbs

are likecatsand dogs - they cannotlivetogether. The promotionof the

politicsof ethnicpurityin factis a toolof thisgenocide. Whats

unfortunatein factis thatthisCourtis being used by individual lske

Mr. Miticand Mr. Lopicicto promoteso-calledevidence unsubstantiated

and frequentlyfabricated regardin crimes againstSerbsbut in factalso

to promote and fuetlhe firesof ethnichatred and fascis thatare now

the basis for the crim of genocidein the Republicof Bosniaand

Herzegovina. Thankyou, yourHonours,may 1 now introduce ProfessorBoyle who

will continuewith the Replyon behalfof the Republicof Bosnia and

Herzegovina.1 againask foryour kind understanding.

The PRESIDENT: Thankyou Mr. Sacirbey. ProfessorBoyle.

Mr. BOYLE: Mr. President,distinguishedMembersof the

InternationalCourt,may it pleasethe Court, first at this time1 wish

to reserveOur rightto respondin writingto the two question posed by

Judge Bola Ajibolaand also byJudgeLauterpacht. Obviouslytheyare

complicated questions aw ndwill do Our best tohave a writtenresponse,
w

withinthe time-frame indicated,by sometime tomorro worning.

Mr. President,in your introductory commentyou mentionedthat

sincethe filingof Our secondrequeston 27July 1 transmitteda

considerablenumberof communication snd documents tothe Court. Maybe

1 should givean explanationas to this wayof proceeding. 1 mentioned

that communicatinwgith my Govemment in Sarajevois seriouslytroubled,

if notalmost impossible, becauseof the ongoingillegalcriminalacts

being perpetrated b the Respondenton a dailybasis. Basically there is

a satellitephone and that is it. That is the only wayyou can

communicate,1 can communicate,with Sarajevo.

It is also a matterof publicrecordthatsoon after1 filedthe

request for provisional measuw resh the Courtin The Hagueon

27 July 1993,1 travelledto Genevato adviseOur Presidentand Foreign

Ministeron mattersof international law relatingto the very existence

of out Stateand Our membership, continuinrightto membershipin the

UnitedNationsOrganization.This fact canbe verifiedby referenceto

my communicationosf 6 and7 August among others to the Court. Due to

the gravityof the situation inGeneva,1 wouldbe the firstto admitthat my communications to the Court after 27 Julywere notthe models of

elegance, clarity, an precisionthat 1would have preferred. But they

were the best 1 coulddo under some very difficult circumstances.

Be that as it may, it was alwaysmy intentionthat al1 the

communications 1 have filedwith the Court since 27 Julywere intendedat

the time of filingto be submitted in support o ofut second requestfor

provisionalmeasuresof 27 July and 1 hereby firmlyreassertthat

intention and most respectfully requt estCourt to consideral1 of my

communications after 2 July to be consideredin supportof Our second

requestfor provisionalmeasures.This way of proceedingis fully consisten tith and supportedby

Article 74, paragraph3, of the Rulesof Courtwhichprovides: "...The

Court shall receiveand take intoaccount any observationsthatmay

be presentedto it before the closuro ef the oralproceedings."

(Emphasisadded.) Al1 my communication and submissionssince 27 July

clearlyfa11withinthe termsof thisprovisionand should be fullyand

completely takenintoaccountby the Courtwhen you retireto deliberate

on Our second requestfor provisionalmeasures. It shouldalso include

Our recent memoranduomn establishingthe imputabilito yf the Respondent

for theconduct of Serb military,paramilitary and militiaforces in
w
Bosniaand Herzegovina in direct violatioonf provisional measure 2)

of 8 April 1993. As we heard this morning, the Respondent contin toous

deny their responsibility for this behaviourup euntiltoday. So, of

course,we need a memorandum on thatmatter.

As for Our memorandumon Articles8 and 9 of the Genocide

Convention, Responden has continued tocontestthoseissuesof

jurisdiction as well. Againwe are seeking to clarifytheseweighty

issuesof jurisdictionfor the Court as soon paosssiblein the best

mannerwe can.

Now, 1want to get into the second point raisedPr byfessor

Rosenne,that somehow the fact thatwe have already succeedeidnmaking

one requestfor provisional measure shouldprecludeus frommakinga

successive request, if the circumstas ncewarrant.

Well, first thereis no provisionwithinthe Statuteor theRulesof

Courtthatpreventsus from makinga separatesecondrequest.

Article41 of the Statutedoesnot in any way limitthenumberor

extentof measures which can be granted,nor does it statethat onlyonerequestis permissible; these of the word "any" enforcesthis

conclusion.

Article41 prefacesthe grantingof measuresupon the circumstances

of the situationpresented to the Court. Clearly,upon a change of

circumstances, the Court is entitledto considerthe situation yet once

again. And in Our secondrequestas amendedand supplemented we have

established, 1 believeconclusively, beyon d reasonable doubt, that the

situationhas definitivelychanged. The Court Orderhas been violated

from the momentit has been issued. The SecurityCouncilhas done

nothingto enforceit. On 13 May 1993 the Respondent itsela fnd its

Agents openly and publicly admitit and endorseand improve thiscampaign

of genocide and many of to heher facts andarguments that we have

adducedduring the course oftheseproceedings. So, the doctrineof res

judicata is not applicable where ther es a materialchange in

circumstances, anw de submit that thatsupports Our second requestfor

provisionalmeasures. Indeed, I want toassureycu 1 just did not file

the requestbecause1 had nothing better to do. 1am not getting paid

here for representingBosnia,it is a pro bon0 case. 1 came here on

the instructionsof my Governmentto preventthe partitionof the State

of Bosnia, and 1 am not here to takeup your time as a publicitystunt or

propaganda stunt or anythil ngke that. This is a seriouslegal issue.

There are peoplegoing to getaway with partitioningus and dividingus

and exterminatinugs and are eliminating Our membershipin the

UnitedNationsOrganization. That is the issue the Judges aregoing to

have to face in this case.

So, clearly, 1 believe,as long as therehas beena change in

circumstances, ant dhere has,and ifyou read Our second request,it is

very clear that the plan to partitionus was reallywhat set things inmotion. This is further supported by the fact that Article75,

paragraph3, of the Rules of Court allowsa partywhose request for the

indication of provisional measures ha been rejected,to make a fresh

requestin the same case, if it is "basedon new facts". Well, it seems

to me that if you make a request andyou lose andthe Rules Say that you

can go back in again if there are fresh facts,certainly if you make a

request andyou win, the other side pays no attentionto the Judgment,

ups theante the SecurityCouncilrefuses toenforcethe Judgment, the

situationgets far worse and thenwe are being threatenedwith having Our

lives as an independent State anU dN Member extinguishedt ,hen of course i

where else can we go forreliefbut to the WorldCourt? And thatis

exactly whatwe did.

Furthermore,on the proprio motu point,we believethat the power

conferredupon the Court under Article75, paragraph1, of the Rules

enablesit to grantmeasures proprio motu and 1 was a bit surprised

that ProfessorRosenne'sargumentthat for you to grantthe provisional

measures proprio motu would be ultra vires your powers. Now as an

advocate 1 do not think 1 want to be onetellingthe International Court

of Justicethat the application o your own Rules is going tobe beyond

your own powers. 1 have a jurisprudential proble with that, 1 couldsee

that with some lower court, but not the InternationaC lourt of Justice.

So, againwe submit that achangeof circumstances, and in Our case

a fundamentalchange,not justfresh facts, a fundamental change in

circumstancesthat would materially extinguiu sh as a State and asa

people, is what precipitated our request foa r new round ofprovisional

measures.

Finally, wesubmit thatthe circumstances of this case involving

genocide areso grave and so seriousthat unless the situationis keptunder activereview bythe Court, daily review ,he situation willand

indeedhas deteriorated significantly t toe pointwhere the exerciseof

substantive jurisdictionby the Courtin this casewill proveto be

impossible.Literallyimpossible. And we will beeliminated as a people

and as a State. Andagain, 1 have explainedto you the grave

difficulties 1have in beingable to get instructionsfrom my Govemment

to filea documentand cone overhere to addresstheseissues. 1 do not

know if 1 will beable to do thisagain. Not due to any lack orfaulton

Our own,but due to whatthe Respondentis doing tous on a day-in and

day-out basis.And if you do notadoptsome regimepropriomotu to

keep thiscase underactive control and review,you will seeus slowly

destroyedand eliminated righ bteforeyour eyes. Just whathappenedto

the Jewishpeople from 1939-45. That is exactlywhat is being

contemplated fotrhe peopleof Bosnia and Herzegovina andthe only

differencebetweenus and the Jews is Our UN Membership,our UN

Statehood, and the only peop wheo can really protecthat are the

Membersof this Court. As we know the SecurityCouncilis a political

body, theydo notdecidein accordance with the rule of law, they decide

mattersin accordance with realpolitik,great power politics, an that

is exactlywhat we have seen. Disagreements amongthe great powerwshen

it comesto how to deal to protectBosniaand Herzegovina.So, whatwe

are lookingfor here,is a legal resolutioo nf the dispute. We believe

that our causeis just and thatany fair-mindedo ,bjectivejudge,that

would lookat Our case,wouldagreewith us. May be nota hundred

percent,but on most of the issues. Now, this getsto the problem raise by Professor Rosenne, both

orally andin writing, about Article59 of the Statuteof the Court.

Now,with thesemeasures are they intendedto be bindingupon third party

States that arn eot parties to thisitigation.And the answeris no.

Indeed1 drafted them expresslyfor thatpurposeto make it clearthat

they wouldnot bebindingon third party States.

The measuresin Article 1 of the Genocide Convention obliage1

Contracting Parties t takestepsto prevent and to punishthe commission

of actsof genocide. We al1 agreeon that. And thereis a reciprocal

natureof the treatyobligations, undercertainlythe Genocide

Convention, meaning that t obligationsupon one Contracting Party

confera correlative rightupon al1 the ContractinPgarties to the

Convention that requirt ese obligationsto be fulfilled.

What setsgenocide apart fromal1 the other treatiesthatwe are

familiarwith is that, aswe know,the Convention entailsan obligation

to prevent and punish genocide whichs erga ornesand thereforeof

supreme importance to use the famouslanguage of the Barcelona

Tractioncase. Again,this is reinforced by thefact that the very

first Article otfhe Convention state thatContracting Parties havean

obligation to preventand punishthe crimeof genocideand these

obligations are erga omnee s,eryone againsatl1 States. And thatsets

the Genocide Convention apart fa romostany other treattyhatyou dealt

with herein the Court,exceptperhapstheUnited Nations Charte itself.

So, becauseof the supreme importanc ef the Genocide Convention,

becauseit establishes obligations erga omnes, the has to be a way

whereby rightsunderthe Treatycan be clarifiedin a situationsuchas

Bosnia andHerzegovina. We haveseenOur rightsput up to the highest

bidderin the Security Council. 1 have beentheremyself. 1 have seenit happen. So, we are not goingto get our rightsprotected at the

Council, 1 can assureyou of that. We will be carvedup by the great

Powersand eaten for breakfast unless t Chourtacts. So, we are coming

here to the Court to askyou to clarify -not decide,but to clarify -

what areOur rightsundertheseunique circumstance invokingStatute

Article41, provisional measures whichyou can do. You can adoptany

provisional measure you want. We are not askingfor an advisory

opinion, nor are we askingyou to orderany other State to do anything.

What theotherContracting Partiesto the GenocideConvention do or do

not do isup to them. Right?

But we believethat if the Courtclarifies our right under

Article1, then the obligation will beundeniablefor the othermembers

of theUnitedNations,and especiallo yf the Security Councilt,hatthey

must actto prevent genocida es requiredby Article1. And, as1 said

before,1 believeit ia the casetoday that 12 Members, at least of the

Security Councia lre likewisePartiesto the GenocideConvention.So we

believethata clarification of our rightsunderthesecircumstances by

the Courtin provisional measures woug ld a longway to help stopping

the genocide in Bosniaand Herzegovina.

True,we arenot askingfor afinaljudgment,as Professor Rosenne

said. If you read through our Applicatioy n,u will seewe have asked

for monetary damages. We al1 know thatwill be manyyearsdown the line,

if we get there,and Professor Rosennk eept insistingupon following

the proper procedure, fili the right document. Well,that is great,

whenyou are there murdering and killingthemen, womenand childrenon

the otherside and thenyou insiston the proper procedura end Say come

back a year fromnow. And then,you know,we mightlook intoyourdocument. This is not what is happening. We are beingwipedout right

therein frontof your eyes on TV,you can read it in the pagesof your
newspapers,and we areaskingthisCourt todo something aboutit.

So, again,1 arguethatwe are not askingyou to issuean orderhere

that is goingto bindanyoneexcept the Partiesto this casewhichwould

be the caseunderthe Statute. But we are askingfor clarificatioof

Our rights whichwe can thenuse in the Security Counclnd the

GeneralAssemblyand elsewhere topreventthe crimeof genocideagainst

Our people.

Now, let us lookat it anotherway. Supposeyou still haveproblems -

with thisargument. You say but they stilaren'tpartiesto the

litigation.Well, whatwould myresponsebe? My responsewould be to

tell my Govemment, fine. Then 1will sue al1 100-plusPartiesto the
GenocideConvention. And younow frommy letterof accreditatio1 have

the powerto do it. 1 don'thave the instructionsbut1 have the power.
Now thinkof that fora minute. 1 have a word processorand a

computerand a secretaryand largenumbersof students who arweillingto

crankout applicationfsorme. Now, doyou realistically wanm te to have

to go back homeand startcrankingout three or four applicationsday

until 1have sued 102 or 103 Statesand dragged thal1 in thisCourt

and accusethemof failureto prevent genocideunderArticle I? And for
many of them, conspiracyo commit genocidenderArticle III and

complicityto commitgenocideunderArticle III?
1have a verygood case
against mostof them for that.
But you couldimagine whatit might look
like. We wouldhave to hold theseproceedingsin a football stadiumnd

not in this PeacePalaceif you are tellingme1 have to sue

100-105 Statesand make theml1 partiesto this lawsuit beforyou are

goingto get intothe question of Articl1. Now that,1 believe,is what is at stakeherewith respectto this

obligationerga ornes. It seemsto me thatwhenwe are dealing wita h

treaty such as the Genocide Conventi-na sacredConvention:we would

al1 agreewith that; oneof the foundation-stono es the post-World

War II era; it underpinsthe entireinternationahlumanrightstreaty

régime thatwe know of- whenwe are dealingwith a treatyof thatnature

we shouldbe able tocorneto this Courtand basically litigatteose

issues that neetdo be litigatewithout necessarily havit ngjoinal1

the Partiesto the GenocideConvention.

As you knowwe have notmade claimsunderal1 Articlesof the

GenocideConvention.We have only madethoseclaims where we believewe

have sufficienctredibleevidence.We arenot takinga shotgun approach

here. We are acting,we think,on thebasisof evidencein the public

record thatwe have been ableto obtain through objectiveutsideneutral

sources,which is unlike whatyou have hearhere from theRespondent

manufacturedby theirownwar criminals.They admit, tha ermed and

commando units there tofe Republicof Srpska,whosePresident,

Radovan Karadzic,is acknowledgeas a major internationawar criminal.

That is wheretheyare getting theiervidence. So, again,you should

certainlyrejecttheir requesf torprovisional measures. 1 just wanted to comment briefly,since it came up, on the so-called

8 June 1992 letter. Again, 1 know you thinkyou have heard enoughof it,

but we did not fully address theissue the last time aroundbecauseit

did not corneto Our attentionuntil shortly before 1 introducedit into

evidence.

On 24 August 1993 the Respondenttook an amazingnew positionon the

They now are willing to accept thatit exists,that it might
letter.

have some consequences one waoyr the other,but they are saying: you

reallycannottake us seriously,you cannottake it at Our word. The

letter, they Say, does not reflectthe legal positionof the Federal

Republicof Yugoslaviabecausethe two Presidents of Serbiaand

Montenegrowho signed the letterwere notentitledto do so. So

according to the arguments madeby the Respondentt ,he Presidentof

Serbiaand the President of Montenegr oasicallyacted beyondthe scope

of their authoritywhen they signedthese letters tothe Badinter

ConmiissionL,ord Carrington,etc., etc. Well again,as an advocate, 1

would have a hard time sayingthat my bossesactedbeyond the scope of

their authority,especiallyif one of my bosseswas Mr. Milosevic. But

that apparently is what theyare preparedto say.

But the two Presidentsstated in an officia1public letterprinted

on the letterhead of the Federal Reublic of Yugoslaviia the language

that 1 have quotedbefore: "the Federal Republic of Yugoslaviatakes the

position". Well, certainly this new argument,which 1 find to be

extraordinary,is consistentwith the Respondent'sattitudetakenal1

along to any officialdocument. They donot take seriouslythe

United NationsCharter; thLondonAgreement,resolutions of the

SecurityCouncil,the GeneralAssembly,they do not takeseriously; the

GenocideConvention,they do not take seriously; this Court'sOrder of8 April,theydo not takeseriously; and so on. So 1 ask the Courtthe

question: how canyou take anything they tey lolu seriouslwhen they

won't evenstandby theirown letterssigned by theio rwn Presidents?

How canyou attributeany credibility a tl1 to anythingthey tellyou

abouttheirso-calledevidence in supportof their request against us?

Professor Rosenndeevoted a gooddealof timeto the 1919 Treaty of

Saint-Germainin hiswrittenobservations and alsohis oral

observations.And we knowhe says,why didwe not pleadit firstin the

Application? Well theris no requirement thatou have to plead

everythingin theApplication.You do yourbest and underthe

circumstancesof genocidethatwas goingon at that time, 1 did my best

in draftingthatApplication in ted nays,and clearly genocidteo me

seemedto be the wayto go to get the jurisdictionof the Court

straightaway. Buas we made clear inthatApplication,we fully

intended to argui en brief othequestionsof jurisdictionas wewent

along, andthatmemorandumon thatTreatywas filedshortly after it was

produced.

Now if you lookat the argument,it is kind of sillyisn'tit.

pickingtechnical littll eawyers'scriveners'points. The Treatyis in

two chapters:the first protects minorities,the secondrefersto

continuityof treaties.

It is clear fromArticle16 that it appliesto theentireTreatyas

a whole,not merely thesecond chapter. Article16 containsprovisions

on the officia1languageof the Treatyand on the procedurefor

ratification.Theseare obviously mattert shatrelateto theentire

Treaty. Also paragraph1 of Article 16 cover"sal1rightsand privileges

affordedby the foregoing Articles and Article11 isa foregoing

Article. 1 submitthathad the parties intendt edlimit thistoChapter IIonly, they coulh dave written"al1rightsand privileges

accorded by the Articlesof thisChapter", whichof coursethey didnot

do.

So ft seemsto me one should assume from the reasonable ordinary

languageof this Treaty"the foregoing"refersto al1 previous Articles

of the Treaty,and indeedthe ViennaConvention, Articl3 e1, says,"a

treatyis to be interpreted in lightof its objectand purpose". And

certainlythe primaryobjectand purposeof thisTreatywas to protect

minoritiesand partciularlM yuslims. That is what the Treatsays.

In reservations tothe Conventionon the PreventionandPunishment
J

of the Crimeof Genocide,theAdvisoryOpinion of this Court, page23,

the Court indicate that atreatywith a "humanitarian anc divilizing

purpose"shouldin particular be interpretedto achievethe purpose. And

1 am not sayingthat thisTreatyis todayas importantas the

GenocideConvention, but it was certainlya very significant breakthrough

for the protectionof humanrightsas group rights back in 1919.

The Respondentthenarguesthatthe Serb-Croat-Sloven Treaty has

"disappearedas part of theVersaillessystem". Well maybethe

Versaillessystem disappeare but theTreatydid not. The Treatyis

stillthere. No eventhas occurredto affect its validity. Indeed,the W

language quoted btyhe Respondentfrom the Vice-Presideo nt the Court,

Judge Oda,doesnot refer specificall yo theTreatyitselfbut to the

post-WorldWar 1 Minoritiestreaty régimeas a group. And the

United NationsSecretariat madeit clearin its Studyof thesetreaties

that thequestionof the validityof each treaty must be examined

individuallyno matterwhat happenedto the so-called régimeor

Versaillessystem, orcal1 it whatyou want. The Respondentthenarguesthat the1950United Nations Secretariat

Studyof the LegalValidityof the UndertakingsconcemingMinorities

doesnot supportthe proposition that theSerb-Croat-Sloven Treatyis

stillin force. But thfeactagainthat thesystemno longerexistedhas

no relevanceto the questionof the continuingvalidityof the Treaty

itself,this particular minorit tyeaty.

Then the Responde~trefersto the Study'sreferenceto those

minoritiesthat assisted Yugoslavia's enea miessuggestedthat the

'lMuslirmeligiousminority"was one of thoseminorities.First,the

Studydid not specifyany particular minorities So thereis no reason

to believethatthe Secretariat was referringto the"Muslimreligious

minority". Also personallyam not awareof any evidencethatwould

supportthe Respondent's factualclaimthatBosnianMuslimsassistedthe

formerYugoslavls enemiesduringthe Second WorldWar. But againthis

issue is not relevantas a basisfor theterminationof a treaty.

Then the Respondenquotesa 1951memorandum of the United Nations

Secretariat whereit statedwith referencteo the 1950Studythatthe

Secretariat'sopinionthat "theminorities system ha ceasedto existwas

not basedsolelyon the ground ofthe League's extinction".But again

thislanguage refert so the system, namelythe enforcementsystem,and

not to the treaty obligations themselvT es.Secretariat madneo

blanketstatementthatal1minoritytreaties were invalid.

Moreover,we cited theSecretariatStudy onlyas confirmationof the

contemporary validitoyf the Serb-Croat-Slovene TreatEyven if the

Studywas not validas of 1950, this wouldnot be definitive.Treaties

remainedin force, pactassuntservanda, untilactions specifiei dn the

ViennaConvention on the Law of Treatiesoccur.And even theUnited Nations Secretary-Generaldoes not have the authority

to terminate treaties in force; thatis the job of this Court,not the

UN Secretariat. Again, the Respondentobjectsto Our contentionthat the

United NationsassumedLeague functions regardingthe MinorityTreaties

but the Respondentis silenton the language quoteb dy us from the

Secretariat's1950 Study. There, it stated thatthe UnitedNationsdid

assumeLeague functions under theseTreatiesand specifically that

United Nationsorgans wouldconsidercornplaintb sy minoritiesof

violationof their rightsunder these treaties. Again, the Respondent

challenges our reference toa Sixth Committeediscussionin 1953,where *

the United Kingdomdelegateindicatedthat League functionsunder another

treaty,the SlaveryConvention,had automatically passed to the

UnitedNations. The Respondent quotesan entireparagraphfrom theSixth

Committeediscussionand Statesthat nothing in that text supports Our

position.

But the issue in the paragraph quoteby the Respondent wasthat of

whether thenew instrument, referre do thereas a protocol, neededto be

adoptedto transferLeague functionsto theUnited Nations.The

United Kingdomdelegatesaid thatno such protocolwas neededbecause

such a transferhad alreadyoccurred automatically. So, in fact, the

quoted language supports the propositf ionwhichwe cited it.

The Respondent finally argue that there is no analogy between the

United Nations assumptio of the League'smandatefunctionand the

assumptionof the League'sminority protectiof nunction. The Respondent

says that the LeagueAssembly madeprovisionfor the future ofthe

mandatesbut not for the future of minorit protection. But this is

factuallyincorrect. By its resolutionof 18April 1946, the LeagueofNations Assemblayccepted theUnited Nations Genera Assembly'sproposal

as reflectedin resolution 24(I) to assume thLeague'sminority

protectionfunction.

The Respondent argueosur referencesto theViennaConvention are

inappropriate, but the provisio ofntheVienna Conventioa nre widely

takenas reflecting customary internationl alw as.detenninebdy this

Courtitself. The Respondent arguet shatthe 1919 Treaty was "terminated

by mutualinforma1agreementof the parties". Wellno such concept

existsin the Law of Treaties or intheViennaConvention as "mutual

informalagreement" to terminaa tetreaty, especiall yne protecting

minorities, a humanrightstreaty. The Respondentthen takes the

preposterous positio that the1919 Treatywas somehowsuperseded by the

International Covenan on Civiland PoliticalRights. Well,the

International Covenantprovidesprotectionsfor individualsi ,t doesnot

providefor the group rightsaffordedby the 1919Treaty. But thatdoes

not mean that thelaterTreatyat al1 eitkierintendedto, or was intended

to, supervenethe earlierTreaty.

Finally,the RespondentclaimsthattheMuslimsof

Bosnia-Herzegovina lot steir statusas a religiousminority after

WorldWar 11, becoming insteaan ethnicminority. Now thinkof that,

the Respondenthas admittedin an officia1Courtdocumentthat theystole

the religion fromthesepeople,theirreligious identit -ygo back and

read this document- they admit thedyeprivedthemof their religious

identityas Muslimsand said: well,now you onlyhave an ethnic

identity, andsomehowtheyare askingyou, this Court, to acceptthat

theftand robbery of theirrelgiousidentityas somehow valid,either

undertheirown law orinternational law. Well again,as theMuslims'Ambassador Sacirbe pointedout, it alwaysremaineda group defined in

partbut not exclusively by their religion.That is why many ofthemare

beingkilledtoday.

Next the Respondent argut esat the 191Treatyappliesonly to the

territoryof Serbia and Montenegrobut the Treatywas intended toprotect

Bosnian Muslims,that is the objectand the purposeof the Treaty,and it

contained detailed provisio fnor the protectioof Muslins. This is a

Treatyof a humanitariancharacter,it is notlimited to territory,

so as to make its guaranteeto people meaningless. The Treatyapplied

to the people,protecting thew mas theobjectand purposeof the Treaty
w
and thesepeopleare stillthere,despitethe fact that th Respondentis

wipingthemout and killing them everyday and has killed200,000,raped

1
30,000-40,000 an driven 2-2 /2millionfrom their homes. Again,

figuresare imprecisefor obviousreasons.

Now, ProfessorRosennelsfinalpointwas that the invocation o the

1919Treaty somehow magically transform the jurisdictional basisf this

Courtto hear the case,and this is ridiculous.The Courtwill recall

that in provisional measurA(2) of 8 April 1993, the Courordered by

13 votesto 1

"TheGovemment of the FederalRepublicof Yugoslavia
(Serbia andMontenegro) shoul dn particularensurethat any
military,paramilitaryor irregular armeudnits whichmay be
directed or supporteby it, as well as anyorganizationsand

personswhich may besubjectto its control, directionor
influence, donot commit anyactsof genocide,of conspiracy to
commitgenocide,of directand public incitement to commit
genocide,or of complicityin genocide, whether directed
against the Muslim populati ofnBosniaand Herzegovina..."

Now the Courtwill remember,as pointed out by JudgTarassov,that

1 never specificallyrequested the Courto protectthe Muslimpopulation

of Bosniaand Herzegovinaby name. Nevertheless, underthe monstrous

circumstancesof ongoing genocide against BosnM ianlims bytheRespondent, the Court felt compellteodprotect Bosnian Muslims

specificallyby name in provisional measurA(2) of its Orderof 8 April

and of course the Court rights lyactedby protecting BosnianMuslims.

As 1 have pointedout,however,they arenot the only oneswho are

victimsof genocidein Bosniaand Herzegovina.We haveMuslims,

Christians,Jews,Croats, Serbs - anyone whotriesto maintainand assert

theirBosniancitizenship is being killedfor thisreason.

Well, ifthe Court alread has jurisdictionto protectBosnian

Muslims underthe Genocide Conventiot n,en the Court should alshave

jurisdictionto protect thesameBosnian Muslims underthe 1919 Treaty of

Saint-Germain.So, Our invocation of the 1919Treatywas intended to

supplement, expand andamendthe jurisdictionwhichwe believethe Court

alreadyhas. We shouldalsonote in thiscontext that the caseis not

based exclusively o the GenocideConvention.The fact that the Court

onlymentioned the Genocide Conventi ioits 8 AprilOrdercannot change

the initialbasisof Our claimsand, in paragraphs130 to 134 of our

Application it stated that thectsof genocidealso constitute

violationsof the fourGeneva Conventions (12 August1949),Additional

Protocol 1 (8 June 1977),the customarand conventional lawosf war,

including the Hague Regulatioa ns,fundamental principlesand rulesof

international humanitarian l and theUniversal Declaratio of Human

Rights and,as 1 have intimated,we will be providingwhenwe get to

submitting the Memoria to the Court,as of on orabout15 October,more

detailon the rest of Our jurisdictional claimwith respectto these

points.But if we do not get Our provisional measures again1 am telling you it

is goingto be impossible for us to argueOur caseon the meritsto the

Court. We are simplynot goingto be able to do it.

Finally,we have compliedwith Article38, paragraph 2, of the Rules

of Procedure which state,and thissectionwas notquoted by

ProfessorRosenne

"TheApplication shallspecifyas far as possiblethe
legal grounds upon whichthe jurisdictionof the Court is said
to be based."

We, in Our Application, specifie as far as possibluenderthe

circumstances of ongoing genocide wha we thoughtjurisdiction was. We
I

did the best job we coulddo underterrible circumstancew s,th very

limited amounts of time,and that is exactlywhatwe are stilldoing

today. We are askingthe Courtto assistus here to presentOur claims,

to allowus to argue Our claims,to allowus to exerciseOur rightsunder

the Statute,the Charterand the Rulesof Court. And finally, we have

the Court'srulingin the Nicaragua case, paragraph80, "TheCourt

considersthat the fact tha the 1956 Treatwyas not involved in the

Application as a titleof jurisdiction doesnot in itself constitute a

bar to reliance being placed upoint in theMemorial."

Well,we thinkthe sameshould apply when it comesto a second round 1

of provisional measures. If not for the developmentssince8 Aprilwe

wouldhave continued going righ ahead toprepare Our Memorial. But

somewherein June we figured out the planwas to carveus up into three

independent Statesand rob us of Our UN membershipand at that poin1 t

received instruction to startpreparing another roundpo rovisional

measures. Now this is whathappened. One finalpointwe did want to makeabout resolutio7 n13 and the

otherresolutions following it - and thisagainis becauseit was brought

up by the otherside thismorning - that is if you read resolutio713

and its successors you will see thatthereis a difference.We have

alreadypointedout 713 applies only to theformerYugoslavia whichno

longer existsand 713 does indeedcontaina paragraph explicitl adopted

underChapter7 of the Charter. The enforcement of security measures,

enforcing measures bythe Security Council,is a seriousmatter - very

serious - and in the case ofBosniaand Herzegovina we are dealingwith

one of Our most fundamental righo ts al1- the rightof selfdefence.

And yet somehowwe werenevereven given a hearingon this - werewe?

Wherewas the due processof lawhere. In comparison evenan aggressor

State is givena hearingand a chance to change its policy befot ree

actionof sanctions. For examplethe case in Iraqor even the adoption

of sanctionsagainstthe Respondent. They were given a threat,theyhad

a hearingand finally sanction seretaken. But for us, thesesanctions

were imposed illegally even befo weecameintoexistenceand we never

had a hearing,theywere just extendedand alsonot on the basisof

Chapter7 of the Charter. Go back and readthe appropriate Articles,

particularly theones1 citedyesterday - resolution 727 is the crucial

one - and thereis no invocation of Chapter7 to be foundin this

resolution.It is not in it. So it is purelyoratory,and indeedas 1

suggestedyesterday,the reasonthatresolution 727was adoptedwas

simplyto giveMr. Vancesome negotiating leverag e,d thatis it. With

al1 due respectto Mr.Vance,1 am not herecriticizing Mr. Vance. He

triedthe besthe could,but he was a gentleman dealinw gith a groupof

criminals,so of coursehe couldnot get too far. So pleasewhenyou are

looking attheseresolutions, pay particular attention,as 1 triedto doyesterday,to 727 which is said to applyto us; but ifyou read it it

doesnot. It was never adoptedunderChapter7, so we are not askingthe

Courtto orderor strikedown a Security Council resoluti orn anything

like that. Again simply give a straightout clarificationof what are

Our legal rightsunderthe Genocide Conventio with respectto the UN

Charter. That is al1 we are askingyou to do and we are acceptingyour

frameworkof reference withinthe termsof the Genocide Convention

itself,particularly Article 1 thereof.

This really bringsto an end the comments1 wantedto make this

afternoon. But1wouldbe remiss in my dutiesif 1were not to set the
w
recordstraighton the so-calledPeace Conferencw eith respectto Bosnia

and Herzegovina.

The PRESIDENT: Professor Boyle , do not want to interruptyou but

we are runningagainsttimeand ifwe go on much longerwe shallbe

trespassing upon the time availablefor theRespondentto reply,and

there is also a questionto beasked.

Mr. BOYLE: That'sfine.

The PRESIDENT: ProfessorBoyle1 was not askingyou to cease
1
immediately.There is one thing 1 thinkyou mightmake clear,afteral1

the amendmentsand so on, the Court wouldlike to knowwhat is the final

positionof Bosnia. Am 1 right insupposingthat in fact, as1 thinkyou

indicatedin your discussion yesterday,thatyou are stillfinallyasking

for eachand everyone of then ten provisionam leasuresyou askedfor, as

set out in your fihstapplicationof 27 July. I

ProfessorBOYLE: Yes. JudgeSCHWEBEL: Thankyou,Mr. President.

1 shouldliketo ask the followinq guestionsof the Agentof the

Republicof Bosnia and Herzegovina ai ndaskingthesequestions 1 wish

to make clearthat1 expressno opinionon themerits orde-meritsof

proposals emanating frt ome Geneva negotiation or on the circumstances

surrounding thosenegotiations.

The Genocide Conventiondefinesgenocideas actscommitted with the

intentto destroy, in whole or inpart, anational,ethnical, raciao lr

religious groubpy killing membersof the groupcausingseriousbodily or

mental harmto the members of the group andrelated grave delictual

acts. In view of the arguments of theAgentof the Republic of Bosnia

and Herzegovina two questionsarise.

1. Supposearguendo thatthe resultof the Genevanegotiations is

agreementamongal1 partiesto replacethe current constitutional

structureof the Republic of Bosniaand Herzegovinawith another

constitutionas ltructure: is the lifeof the current constitutional

structureof the Republic of Bosniaand Herzegovinato be equatedwith

the lifeof membersof a national,ethnical, raciao lr religiousgroup?

2. Supposearguendo that theresultof the Genevanegotiations is

to reconstitutethe Republicof Bosniaand Herzegovina as three

constituent Republics- Muslim, Serband Croatian,will sucha

re-constitutioo nf itselfbe tantamountto genocide?

Thankyou Mr. President.

The PRESIDENT: Thankyou very much. This is an impromptu question

in i.onghand.Perhaps ve can promisethat the twoParties will have the

question, typeda,s soonas possible. But wouldyou like to replyto it

now? Mr. BOYLE: On your firstquestion,JudgeSchwebel. We went to Geneva

and 1 was there forthe timeon the basisof a mandatethatwas fromthe EEC

and United NationsSecurity Council resolutions demand that the territorial

integrity and the political independo enBosnia-Herzegovina wou ld

preserved. What we foundout whenwe got thereand we read thedocuments
'
which 1 did formy President,andyou have myreportin your file,was thatin

fact the document were draftedon the assumptionthatwe wouldbe carvedup

intothreeindependent States. Andas the LegalAdviserto the International

Conference on the former YugoslaviChairmanadmittedthiswould create severe

continuity problernsor us at theUnited NationsOrganization.Now on the
-
basisof instructions 1 had received fromy President andmy

Foreign Minister,1 rejectedthisand tableda counter-proposa1 baso edthe

assumption thatwe wouldbe havingan interna1reorganizatioinnto

three constituent republi bust oneunified Statethatwould continueour

UnitedNationsmembership. Andhen 1 tabledthatcounter-offer to the

InternationalConference on the formerYugoslavia lawyer was basically

threatened at United Nations Headquari teGeneva,not personally,but on

behalfof the State. 1 was told that if we did not accept the

Owen-StoltenberPglan exactlythe way itwas drafted "theSecurityCouncil

will tellyou to go to hell". Now thatwas said to me, the GeneralAgentfor-

Bosniaand Herzegovina, and1 was therein thatcapacityand the lawyer

understoodthat,and 1 was told this in UnitedNationsHeadquarters.That is

where negotiationsstandtoday.

The Owen-StoltenberAggreement still callfor us to be carvedup into

threeindependent Statesand basically tocreate aseverecontinuity problem
4
for us at theUnitedNations. And we have officially rejectethatin letters

by PresidentIzetbegovic thathave beenon file atthe Security Councialnd

are on filewith thisCourt.

Now, as foryour second questionw,e have submittedand-

Professor Rosennmeade thispoint - maybe1 did not makeit clear,we are
0762c/CR93/35/T7/..sayingthatpartition, annexation is beingdoneby meansof genocide.

That is part of the plan. Now,you liquidate a peopla end you steal

theirlandand theirpossessions.The samethingwas done to the Jews in

Germany. Right. That is what is beingdone to us. The programmehere

is greaterSerbia. Take Our land andkill the people and move us out and

grab it and keep it. In my opinionthe intemal structural

reorganizatiot nhatyou suggestedis prettymuchwhat we proposedin our

counter-offer in Geneva. Add, again,instructionsof my President,1

wouldhave said,well,try to comeup witha reasonable compromih sere

thatwould continue our existen asea unifiedStateand a Memberof the

UnitedNationsbut would accept thenotionof an internalreorganization,

intemally and constitutionally on the basisof threeconstituent

units - one forMuslims, one for Croats, one foSrerbs. On the basisof

thoseinstructions 1 drafteda proposa1thatwas thensentout under

PresidentIzetbegovic'n same to the Co-ChairmenT.hat proposa1has yet

to be respondedto by the Co-Chairmen an it is on file atthe

Security Council,it is on filehere withthe Court. We acceptedthe

notionof an intemal reorganizatioi nntothree constituent unib tssed

on ethnicity,despitethe fact thaw te feltit was a bad thingto do

becauseit will leadto furtheracts ofgenocide,and here whatshould

cometo everyone's mind is Indiaand Pakistan. Rememberwhen the Indian

su-continentwas partitioned anhdow many people dieads a resultof

that. Andyesterday1 citedthe statistics by tho efficia1State

DepartmentStudythatwas at leastrecountedin the New York Times,

they estimated tha if thisinternal reorganizatit onatyou mention,
. .
thatlegally would keep our international personalit y,ep our

UnitedNationsmembership, nevertheless wouldsubjectanother

million-and-a-hal people ormore to actsof ethniccleansing. Our

peoplelivethereal1 intermingled everywhere.So if you Say: well,here is the MuslimState, hereis the Serb Stateand here is the Croat

State,you are goingto put 1-1 I/ millionpeopleon the move,and
2
even moredeathand destruction and killingand genocide.

So the quick answer to your question is yes, althoughit is the

positionof Our Govemment,we are prepared to acceptit becausethe

greatPowers havesaid to us: well, wewant you to do this. We have

accepted it in principle somewhat reluctant and 1 should point out that

just recently three United States Government high-levelofficialsin the

StateDepartment have resigned becausetheyknow full well what the

consequences will bi ef the so-calledinterna1reorganization is carried w

out.

1 hope that answersyour questionadequately.

The PRESIDENT: Thankyou verymuch,ProfessorBoyle. Now,when

wouldyou like usto return? Would it stillbe 5 o'clock or wouly dou

likeus to comeback at 5.10 p.m.?

Mr. ETINSKI: Mr. President,if you find it convenient, the timefor

a coffee break wilb le enough for the YugoslavParty.

The PRESIDENT: So that 5 o'clockwouldbe alright,would it?

Mr. ETINSKI: Well, 1 said the time fora coffeebreak - 15 to

30 minutes,no more.

The PRESIDENT: Thirty minutf esomnow?

Mr. ETINKSI: Yes.

The PRESIDENT: Quarterto five,shallwe say? Thankyou verymuch.

The Court adjourned from 4.15 to 4.45p.m.

0762c/CR93/35/T7/.. The PRESIDENT: Please beseated. Mr. Etinski.

Mr. ETINSKI: Mr. President, distinguished Membo ersthe Court,may

it please theCourt.

Reservingal1 rightsof objectionto the jurisdictionof the Court

and to the admissibilityof theApplication, anidn view ofthe contents

of the twowritten submissionsdated 9and 23 August1993,and the

statements of my distinguishecolleagues,1 wouldlike to presentthe

finalcomments.

In view of the claimof the ApplicanStateto base the jurisdiction

of the CourtunderArticlesXI and XVI of theTreaty between Alliedand

AssociatedPowersand theKingdomof Serbs,Croats and Slovenes signed

at Saint-Germain-en-Lay on 10 September1919,the FederalRepublicof

Yugoslaviaasks the Court

to reject thesaid claim,

- becausethe TreatybetweenAlliedandAssociated Powersand theKingdom

of Serbs, Croatsand Slovenessignedat Saint-Germain-en-Lao yne

10 September 1919is not inforce; and

- becausetheApplicant State is not entitledto invokethe jurisdiction

of the Court accordintgo ArticlesXIand XVI of the Treaty.

In view of the claiof the ApplicantState,the jurisdiction of the

Court is also groundedon the Customaryand Conventional International

Law of War and International HumanitarLian, including, butnot limited

to, the four Geneva Conventio ons1949, theirFirstAdditional Protocol

of 1977,and theHagueRegulations on LandWarfare of 1907,and the

Nuremberg Charter, Judgme antd Principlesthe FederalRepublicof

Yugoslaviaasks the Court

to rejectthe saidclaim,

- becauseit is contraryto Article36 of the Statuteof the Court. In view of the claim of the ApplicantStateto establishthe

jurisdiction of the Courton the basisof the letterof 8 June 1992,sent

by the Presidents of the two Yugoslav Republics, Serba inad Montenegro

(Mr.SlobodanMilosevic)and Mr. Momir Bulatovic to the Presidentof the
+.
Arbitration Commissio of the Conference on Yugoslavia, the Federal

Republicof Yugoslavia asks the Court a

to reject thesaid claim,

- becausethe declaration containedin the letterof 8 June 1992 cannot

be understood as a declaration of theFederalRepublicof Yugoslavia

accordingto rulesof international law,

- becausethe declaration was not inforceon 31 March 1993,or

- becausethe conditioncontained in the declaration is not fulfilled.

The FederalRepublicof Yugoslaviaasks the Court

to reject ail Provisional Measure requested by the Applicant State

becausethe Courthas no jurisdiction to indicatethem;

- becausethey are not foundedon the new legallyrelevant facts;

- becauseof the abuseof rightsof the request for provisional measures;

- becausetheywould cause irreparable prejudiceto the rightsof.the

FederalRepublicof Yugoslaviathat theso-calledRepublicof Bosnia

and Herzegovina fulfil its obligations under the Genocide Convention 'rr

concerningthe Serb people in Bosnia and Herzegovina;

- becausethey look to the pastnot to the future;

- becausetheymean an interimjudgment;

- becausethe qualification of the provisions of the Genocide Convention

cannot bethe subject-matter of the Provisional Measures; and
I
- becausethey are ill-founded on Article75, paragraph1, of the Rules

of Court. Wishingto protect its right by makingthe so-calleR depublicof

Bosniaand Herzegovina to fulfilal1 its obligations concernit nge

protection of the Serbethnicgroup according to the Genocide Convention,

the FederalRepublicof Yugoslavia askt she Courtto indicatethe

following ProvisionM alasure:

The Govemment of the so-calledRepublicof Bosnia-Herzegovina

should irnrnediatelin,pursuanceof its obligationunderthe Convention

on the Preventionand Punishrnenotf the Crimeof Genocideof

9 December1948,takeal1measureswithinitspowerto prevent commission

of the crime of genocide againstthe Serbethnicgroup.

Thankyou Mr. President.

The PRESIDENT:Thankyou. That is the end of the Yugoslavic aase?

Mr. ETINSKI: Yes.

The PRESIDENT:Verywell. So, we cometo the end of theseoral

proceedingswhich 1 now declareclosed,subjectto theusualcondition of

the Agents remaining availat blthe Courtif needed atsomejuncture.

The Courtwillnow proceedto deliberate itd secisionand thedateon

whichthe Orderwill bereadout in Courtwill benotifiedto the Parties

in due course. Thankyou verymuch.

TheCourt rose at 5.00p.m.

Document Long Title

Audience publique tenue le jeudi 26 août 1993, à 15 heures, au Palais de la Paix, sous la présidence de sir Robert Jennings, président

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