Audience publique tenue le mercredi 6 novembre 2002, à 10 heures, au Palais de la Paix, sous la présidence de M. Guillaume, président

CR 2002/42
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2002
Public sitting
held on Wednesday 6 November 2002, at 10 a.m., at the Peace Palace,
President Guillaume presiding,
in the case concerning Application for Revision of the Judgment of 11 July 1996 in the Case
concerning Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections
(Yugoslavia v. Bosnia and Herzegovina)
____________________
VERBATIM RECORD
____________________
ANNÉE 2002
Audience publique
tenue le mercredi 6 novembre 2002, à 10 heures, au Palais de la Paix,
sous la présidence de M. Guillaume, président,
en l’affaire de Demande en revision de l’arrêt du 11 juillet 1996 en l’affaire relative à
l’Application de la convention pour la prévention et la répression du crime de génocide
(Bosnie-Herzégovine c. Yougoslavie), exceptions préliminaires
(Yougoslavie c. Bosnie-Herzégovine)
________________
COMPTE RENDU
________________
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Present: President Guillaume
Vice-President Shi
Judges Ranjeva
Herczegh
Koroma
Vereshchetin
Parra-Aranguren
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Judges ad hoc DimitrijeviÁ
Mahiou
Registrar Couvreur
¾¾¾¾¾¾
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Présents : M. Guillaume, président
M. Shi, vice-président
MM. Ranjeva
Herczegh
Koroma
Vereshchetin
Parra-Aranguren
Rezek
Al-Khasawneh
Buergenthal
Elaraby, juges
MM. DimitrijeviÁ
Mahiou, juges ad hoc
M. Couvreur, greffier
¾¾¾¾¾¾
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The Government of the Federal Republic of Yugoslavia is represented by:
Mr. Tibor Varady, S.J.D. (Harvard), Chief Legal Adviser at the Federal Ministry of Foreign Affairs
of the Federal Republic of Yugoslavia, Professor of Law at the Central European University,
Budapest and Emory University, Atlanta,
as Agent;
Mr. Vladimir DjeriÁ, LL.M. (Michigan) Adviser to the Minister for Foreign Affairs of the Federal
Republic of Yugoslavia,
as Co-Agent;
Mr. Andreas Zimmermann, LL.M. (Harvard) Professor of Law, University of Kiel, Director of the
Walther-Schücking Institute,
as Counsel and Advocate;
Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Member of the International Law Commission, Member of
the English Bar, Emeritus Chichele Professor of Public International Law, University of Oxford,
as Adviser;
Mr. Dejan Ukropina, Attorney from Novi Sad,
Mr. Robin Geiss, Assistant at the Walther-Schücking Institute, University of Kiel,
Mr. Marko MiÁanoviÁ, LL.M. (NYU),
Mr. Slavoljub CariÁ, Counsellor of the Embassy of the Federal Republic of Yugoslavia in
The Hague,
Mr. Miodrag Panceski, First Secretary of the Embassy of the Federal Republic of Yugoslavia in
The Hague,
as Assistants.
The Government of Bosnia and Herzegovina is represented by:
Mr. Sakib SoftiÁ,
as Agent;
Mr. Phon van den Biesen, van den Biesen Advocaten, Amsterdam,
as Deputy Agent;
Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, member and former Chairman of
the International Law Commission,
as Counsel and Advocate;
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Le Gouvernement de la République du Yougoslavie est représenté par :
M. Tibor Varady, S.J.D. (Harvard), conseiller juridique principal au ministère fédéral des affaires
étrangères de la République fédérale de Yougoslavie, professeur de droit à l’Université
d’Europe centrale de Budapest et à l’Université Emory d’Atlanta,
comme agent;
M. Vladimir DjeriÁ, LL.M. (Michigan), conseiller auprès du ministère des affaires étrangères de la
République fédérale de Yougoslavie,
comme coagent;
Dr. Andreas Zimmermann, LL.M. (Harvard), professeur de droit à l’Université de Kiel, directeur
de l’Institut Walther-Schücking,
comme conseil et avocat;
M. Ian Brownlie, C.B.E., Q.C., F.B.A., membre de la Commission du droit international, membre
du barreau d’Angleterre, professeur émérite de droit international public (chaire Chichele) à
l’Université d’Oxford,
comme conseiller;
M. Dejan Ukropina, Attorney à Novi Sad,
M. Robin Geiss, assistant à l’Institut Walther-Schücking, Université de Kiel,
M. Marko MiÁanoviÁ, LL.M. (Université de New York),
M. Slavoljub CariÁ, conseiller auprès de l’ambassade de la République fédérale de Yougoslavie à
La Haye,
M. Miodrag Panceski, premier secrétaire à l’ambassade de la République fédérale de Yougoslavie à
La Haye,
comme assistants.
Le Gouvernement du Bosnie-Herzégovinie est représenté par :
M. Sakib SoftiÁ,
comme agent;
M. Phon van den Biesen, van den Biesen Advocaten, Amsterdam,
comme agent adjoint;
M. Alain Pellet, professeur à l’Université de Paris X-Nanterre, membre et ancien président de la
Commission du droit international,
comme conseil et avocat;
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Mr. Antoine Ollivier,
Mr. Wim Muller,
as Counsel.
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M. Antoine Ollivier,
M. Wim Muller,
comme conseils.
- 8 -
Le PRESIDENT : Veuillez vous asseoir. La séance est ouverte pour le deuxième tour de
plaidoiries de la République fédérale du Yougoslavie et je donne immédiatement la parole au
professeur Tibor Varady, agent de la République fédérale du Yougoslavie. Vous avez la parole.
Mr. VARADY: Je vous remercie, Monsieur le président. Mr. President, Members of the
Court:
1.1. Mr. President, Members of the Court, let me say a few words with regard to the
introductory part of the pleadings of our learned colleagues, presented yesterday, which pleadings
brought us back to the drama of the 1992-1995 conflict.
I shall not endeavour to discuss the significance or the magnitude of human sufferings, let
alone to challenge it. One could say, and actually one should say, however, that there is no
judgment whatsoever, national or international, which would have established genocide committed
by a citizen of the Federal Republic of Yugoslavia (FRY). The International Criminal Tribunal for
the former Yugoslavia (ICTY) did establish genocide in Srebrenica, and established the
responsibility of a general of the Bosnian Serb Army. The case is under appeal. It is also a part of
the truth that a most thorough investigation of the events in Srebrenica, the one conducted by the
Netherlands Institute for War Documentation, came to the conclusion that there was no Yugoslav
involvement. It is stated: “There is no evidence to suggest any political or military liaison with
Belgrade, and in the case of mass murder such a liaison is highly improbable.”1
There is no doubt, Mr. President, that Sarajevo and Srebrenica remain monuments of
senseless destruction. There is no doubt that the great majority of victims were Moslems, that is
Bosniacs. It is premature, however, to take the allocation of responsibility for granted.
1.2. Let me also mention that we tried to check the assertion of the Respondent regarding the
alleged statement of President Koštunica of 16 September 1994. Attempting to link the present
leadership of the FRY to the siege of Sarajevo, the Deputy Agent of the Respondent stated:
“[O]n 16 September 1994 . . . the current President of Yugoslavia,
Mr. Koštunica, who is currently also running for President of Serbia and received a
majority of the votes and who is quoted as saying [looking down on Sarajevo from the

1NIOD ¾ Srebrenica Report, Epilogue, p. 20, available at: http://www.srebrenica.nl/en/content_epiloog.htm.
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Serb front lines] ‘here we can see what the future borders of Serbia should look
like’.”2
No source of this allegation was quoted. We have verified this, and established that Mr. Koštunica
never said what was ascribed to him.
1.3. Mr. President, Members of the Court, let me say again, that I cannot ¾ and do not want
to ¾ contest or diminish the suffering of any people. I also know, just as counsel for Bosnia and
Herzegovina do, that the sufferings of the Bosniac people reached dramatic proportions during the
war. But this belongs to the merits. At this point, we are dealing with an Application for Revision
of the 1996 Judgment on jurisdiction.
1.4. Dealing with preliminary matters, I would like to say a few words in connection with the
allegation that all the FRY is doing is to delay and stall these proceedings.
I understand that if this were true, that all the FRY can do is stall, this would imply that the
position of the Applicant must be weak, and that the position of the Respondent is a strong one. It
is, of course, for the Court to establish the respective strengths and positions of the Parties. But I
would like to make it clear that we are not stalling. We are convinced that the Court has no
jurisdiction in this case, and we strongly believe that the conditions for revision set in Article 61 of
the Statute have been met. This is why the FRY respectfully submitted its Application for
Revision.
1.5. But let us take a look at facts and dates.
¾ On 5 October 2000, mass demonstrations of hundreds of thousands of Serbian citizens which
brought to an end the MiloševiÁ régime, forced it to recognize the result of the presidential
elections. Mr. Koštunica became President of the FRY, replacing Mr. MiloševiÁ.
¾ A new Yugoslav Government was formed on 3 November 2000.
¾ New elections in Serbia took place on 23 December 2000.
¾ After the elections, a new Serbian Government was formed on 25 January 2001. This was the
point when a new government was formed on all relevant levels.
¾ On 18 January 2001 the FRY asked for a stay or a postponement of all of its cases before the
ICJ. In the same letter Minister SvilanoviÁ indicated the appointment of the new Agent.

2CR 2002/41, p. 12, para. 3 (Phon van den Biesen).
- 10 -
Postponements were granted. However, in the case with Bosnia and Herzegovina, the FRY
submitted an Application for Revision on grounds of newly discovered facts, instead of taking
advantage of the postponement.
¾ The new Yugoslav Foreign Minister formally nominated the Agent of the new Government of
the FRY in the Bosnia v. Yugoslavia case on 26 January 2001 ¾ and this was promptly
acknowledged by the Registrar on 29 January 2001
¾ The Counter-Claim was withdrawn on 20 April 2001.
¾ The Application for Revision was submitted on 23 April 2001.
¾ Bosnia sought an extension of the time-limit for the submission of written observations on
2 August 2001.
¾ The FRY stated on 17 August 2001 that it had no objections against such extension.
¾ The time-limit for the submission of written observations of Bosnia and Herzegovina was
extended on 21 August 2001 until 3 December 2001.
¾ Having received the Written Observations of Bosnia and Herzegovina, the FRY suggested
another exchange of written submissions. This was not accepted, and instead, the present oral
hearings were scheduled.
1.6. Let me submit that this sequence of procedural steps is a rather usual sequence. Let me
also mention that the task before the new office holders of the FRY ¾ who only took office by the
end of 2000 ¾ was momentous, after more than a decade of isolation and decline. Still, the
lawsuits before the ICJ received early attention.
1.7. The Respondent has also suggested that this Application for Revision is some sort of a
“betrayal” of the idea of reaching an out-of-court friendly settlement. We simply fail to see why
this would be the case. I do not see why it would be more difficult to discuss an out-of-court
settlement while the proceedings concerning jurisdiction are still pending. At any rate, the FRY
did make attempts to reach a friendly settlement: the response was, so far, negative. The FRY is
ready at any moment to resume negotiations on ground of its own initiative, or on ground of any
other initiative, at any moment.
1.8. Another issue belonging to the general background is the following. The Agent and
Deputy Agent of Bosnia and Herzegovina submitted that a “positive outcome” of Bosnia’s case
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against the FRY on the merits, that is a judgment which would hold the FRY responsible for
genocide, would “enable the two States to live in friendship as good neighbours”3
and it would also
“be a tremendous support in the very difficult reconciliation process currently going on in Bosnia
itself”4
.
With all respect, this is very difficult to believe. It is difficult to believe that years of
proceedings on the merits, with hundreds of witnesses, accusations and recriminations, clashes of
views on tragedies would contribute to the reinforcement of the fragile modus vivendi between the
ethnic groups in Bosnia.
Let us add that within the framework of a conceivable proceeding on the merits before this
Court, determinations of guilt or innocence are restricted to guilt or innocence in connection with
genocide, which could hardly give an answer to all grievances ¾ let alone bring about
reconciliation.
1.9. Furthermore, one has to bear in mind that this lawsuit is not articulated along the same
lines as the conflict itself. The dividing lines of the actual conflict were very much ethnic dividing
lines. After the Dayton Peace Accord, former adversaries have become citizens of the same State
consisting of two entities: the Federation, which is created in response to Bosniac and Croatian
legitimate aspirations, and the Serbian Republic (the “Republika Srpska”). This is a lawsuit in
which it is alleged that the FRY was “aiding and abetting” the Bosnian Serbs in committing acts
prohibited by the Genocide Convention5
. This could hardly represent “a tremendous support in the
very difficult reconciliation process currently going on in Bosnia itself”6
.
1.10. The reconciliation process would quite certainly be seriously hampered by a “positive
outcome” of the case for Bosnia, given some specific claims of Bosnia and Herzegovina. In spite
of the fact that the “Republika Srpska” is one of the two legitimate entities of the State of Bosnia
and Herzegovina as formed by the Dayton Agreement, Bosnia claims in its Reply of 23 April 1998
that: “The creation of ‘Republika Srpska’ has been imposed through the use of force and

3CR 2002/41, p. 11, para. 15 (SoftiÁ).
4CR 2002/41, p. 11, para. 16 (SoftiÁ).
5Memorial of Bosnia and Herzegovina of 15 April 1994, para. 1.3.0.5.
6CR 2002/41, p. 11, para. 16 (SoftiÁ).
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genocide.”7
Further on, it is claimed in the same Reply that: “It appears clearly that the ‘Republika
Srpska’ is the product of both an unlawful use of force and genocide, that is, clearly contradicting
the principles prohibiting both the use of force in international relations and genocide.”8
1.11. Reconciliation and justice appear to be more within reach through the vehicles of
individual responsibility.
I would like to ask you, Mr. President, to invite Mr. Vladimir DjeriÁ, who would address
exactly this issue. Thank you very much.
Le PRESIDENT : Je vous remercie Monsieur l’agent. Je donne maintenant la parole à
M. Vladimir DjeriÁ.
Mr. DJERIC: Thank you, Mr. President.
1.12. Mr. President, Members of the Court, the representatives of Bosnia and Herzegovina
yesterday reminded you about the war in Bosnia and Herzegovina and about the tragic events that
took place at that time. The events were indeed tragic and massive violations of human rights and
humanitarian law indeed took place. To say the least, the tragedy and suffering of Sarajevo and
Srebrenica cannot be retold by words and cannot be overstated.
1.13. In 1992, I was among many thousands of citizens of Belgrade who went onto the
streets to protest against the war in Bosnia and against the siege of Sarajevo. Both in Bosnia and in
the FRY there were those who were against the war and there were those who were for the war.
1.14. But this is not the subject-matter of the present proceedings. The subject-matter of the
present proceedings is the legal issue of whether the Court should lay open its 1996 Judgment for
revision, in the light of newly discovered facts.
1.15. However, the representatives of Bosnia and Herzegovina used much of their time to
speak about the importance of the proceedings on the merits in the case of Bosnia and
Herzegovina v. Yugoslavia. The Agent of Bosnia and Herzegovina said yesterday that the
continuation of the proceedings will set the record straight and that the case “will clarify the true,

7Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Reply of Bosnia and Herzegovina, p. 789, para. 82.
8Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Reply of Bosnia and Herzegovina, p. 794, para. 96.
- 13 -
i.e., genocidal nature of the atrocities committed against the non-Serb population of Bosnia and
Herzegovina”9
.
1.16. Again, this is not the subject-matter of the present proceedings. But, in any case, to
come back to the contention of Bosnia and Herzegovina, only criminal proceedings against
individuals are a proper legal avenue for “setting the record straight”. In addition, only national
and international criminal tribunals have an appropriate and much needed apparatus for dealing
with evidence, for questioning hundreds of witnesses and for establishing the full truth. One
should just visit the International Criminal Tribunal for the former Yugoslavia (ICTY) here in
The Hague and see this institutional machinery and vast resources that are needed in order to
conduct such proceedings. Finally, the national and international criminal proceedings against
individuals are the only possible way to establish criminal responsibility ¾ which can only be
individual ¾ and in this way to bring justice.
1.17. Mr. President, without any wish to judge or take a position on the state of affairs in
Bosnia and Herzegovina, one cannot help but notice that the existence of this lawsuit has given rise
to a great debate, and more than a debate, in Bosnia and Herzegovina itself. This lawsuit seems to
be an added burden on the delicate political fabric of Bosnia and Herzegovina, instead of giving
support to the process of reconciliation as claimed yesterday by the Agent of Bosnia and
Herzegovina.
1.18. At the same time, a strong incentive and support for the process of reconciliation has
come from the context which the FRY sees as the appropriate one for the establishment of
responsibility for violations of international humanitarian law. Thus, one of the top leaders of the
Bosnian Serbs during the war in Bosnia and Herzegovina, Mrs. Biljana Plavsic, entered into a plea
agreement with the ICTY Prosecutor and pleaded guilty for crimes against humanity before the
ICTY. At the same time, an important statement was made on her behalf:
“By accepting responsibility and expressing her remorse fully and
unconditionally, Mrs. PlavsiÁ hopes to offer some consolation to the innocent
victims ¾ Muslim, Croat and Serb ¾ of the war in Bosnia and Herzegovina.
Mrs. PlavsiÁ invites others, especially leaders, on any side of the conflict, to examine
themselves and their own conduct.

9CR 2002/41, p. 10, para. 13 (SoftiÁ).
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The acknowledgement of guilt by Mrs. PlavsiÁ is individual and personal.
Legal responsibility can only be borne by persons individually, based upon individual
acts and conduct.”10
1.19. It is clear that the process of reconciliation starts within the framework of individual
criminal responsibility, and that only criminal sanctions against the responsible individuals will
open the way towards true and full reconciliation.
1.20. Mr. President, Members of the Court, another point made by the Agent of Bosnia and
Herzegovina was that the suit against the FRY will “pave the way for the opening of a new chapter
in the relations between the two States”. I must admit that I am not quite sure what this is supposed
to mean. A new chapter in the relations between Bosnia and Herzegovina and the FRY was
already opened two years ago, within weeks after the end of the MiloševiÁ régime. This has been
confirmed less than two weeks ago, upon the visit of the Yugoslav Ambassador in Sarajevo to the
presidency of Bosnia and Herzegovina, and I will quote now the statement issued by the presidency
of Bosnia and Herzegovina on that occasion, which we translated into English:
“The progress in relations has been mutually emphasized, which is expressed
through the establishment of an Inter-State Council for Co-operation . . .
Until now, a total of eight inter-State treaties and agreements between the FRY
and Bosnia and Herzegovina have been signed, which can be considered a good
success in strengthening the mutual relations between the two countries.”11
1.21. In addition to this clear statement, I can assure you that the FRY has good relations
with Bosnia and Herzegovina as one of its top foreign policy priorities, with or without this lawsuit
pending before the Court. Naturally, the existence of this lawsuit certainly does not help improve
these relations, but it has not made them worse either. The only problem is that the existence of
this lawsuit has been detrimental for the internal political situation and stability of Bosnia and
Herzegovina, which is, of course, not a matter of our interest today.
1.22. Mr. President, Members of the Court, the siege of Sarajevo and the massacre of
Srebrenica are clearly abhorrent crimes. No question about it. Mr. van den Biesen was yesterday
referring to indictments pending before the ICTY which are related to the atrocities that took place

10Statement on behalf of Biljana Plavsic, The Hague, 2 October 2002, available at
www.un.org/icty/pressreal/p697-e.htm.
11Ambasador SR Jugoslavije u Predsjednistvu BiH [Ambassador of the FRY in the presidency of Bosnia and
Herzegovina], press release of 22 October 2002, available at
http://www.predsjednistvobih.ba/saop/default.aspx?cid=413&lang=bs.
- 15 -
during the Bosnian war. This was used to imply responsibility of the FRY for these events, and
these indictments and their legal assessments were presented as established truths. This, of course,
is not correct.
1.23. I first wish to emphasize that indictments are just that ¾ indictments, and they are not
final judgments, which establish facts and what really happened. For example, Mr. van den Biesen
quoted the indictment against Mrs. PlavsiÁ ¾ I have just mentioned her ¾ and contrary to what he
was claiming, in the meantime there was a plea agreement according to which the count of
genocide against Mrs. PlavsiÁ was withdrawn, while she pleaded guilty to a crime against
humanity.
1.24. Thus, what is in indictments cannot be taken as established fact, as the indictments are
obviously always subject to modifications. Finally, and most importantly, if what is contained in
indictments were to be taken as an established fact, why would there be a need, at all, for the right
to defence that belongs to the accused and why, more importantly even, there would be a need for
judicial decisions at all?
1.25. Mr. President, Bosnia and Herzegovina spent much of its time yesterday to show that
the FRY is not respecting its international obligations and that it is not co-operating with the ICTY.
Bosnia and Herzegovina is invoking the Dayton Peace Agreement in order to say that the FRY has
obligation to co-operate with the ICTY. In that regard, I wish to emphasize that the FRY, as a
Member of the United Nations, as well as under its own constitution, has unequivocal obligation to
co-operate and that the FRY does co-operate with the ICTY. We firmly believe that all individuals
responsible for international crimes committed on the territory of the former Yugoslavia must be
brought to justice, and that the ICTY plays a crucial role in that respect.
1.26. It is true that the President of the ICTY formally notified the Security Council that
there is a lack of co-operation on the side of the FRY. The FRY also admits that there are
difficulties and delays in co-operation. This has been true, at various occasions, for all States
emerging from the former Yugoslavia. The task of co-operation is novel and is not an easy one. It
is burdened with political difficulties as well as with legal issues that arise in the course of
co-operation. But what is important is that the commitment of the FRY to honour its international
obligations is strong and is unquestionable.
- 16 -
1.27. Therefore, the FRY surrendered its former Head of State, Mr. MiloševiÁ, to the
Tribunal, and has caused another former Head of State of Yugoslavia to testify in the same case.
The FRY has also surrendered to the Tribunal some of its former top military and State officials,
for example, the former Chief of the General Staff of the Yugoslav Army, as well as the former
Deputy Federal Prime Minister. Yugoslav courts have issued arrest warrants for additional
17 accused whose arrest has been sought by the ICTY and who are believed to be on the territory
of the FRY. Also, the FRY co-operates in other ways with the ICTY. For example, it has provided
effective assistance to the Prosecutor to locate, interview and obtain testimony from witnesses and
suspects.
1.28. Mr. President, Members of the Court, the war in Bosnia and Herzegovina was a tragic
and distressing event. We are still coping with the heavy burden and consequences of the war and
with the consequences of other wars that took place on the territory of the former Yugoslavia. But
I am glad to say that it seems that progress is visible, and as Professor Varady said yesterday, there
is no more impunity for crimes committed.
1.29. We thought it necessary to give our view on the issues raised by the Agent and Deputy
Agent of Bosnia and Herzegovina. We thought that these were important points to make, although
they are not really connected to the present proceedings on revision. Now, perhaps, it is a time to
look again at the substance of the present case. I will now thank you for your attention, and,
Mr. President, if you could please ask Professor Varady to continue our presentation. Thank you
very much.
Le PRESIDENT : Je vous remercie, Monsieur DjeriÁ. Je redonne la parole à M. le
professeur Tibor Varady, agent pour la République fédérale de Yougoslavie.
Mr. VARADY:
2.1. Mr. President, Members of the Court, let me turn now to the essence of the matter, and
this is the question whether the Application for Revision of the FRY is admissible in the light of
Article 61 of the Statute of the Court. We would also like to lend due attention to the points raised
by the opposing side which endeavour to refute our arguments. I have to say, however, that much
- 17 -
of what was said yesterday refutes arguments we did not make ¾ sometimes refutes the opposite
of what we argued.
2.2. I would like to mention, for example, that in his concluding remarks Professor Pellet
states: “le ‘fait nouveau’ qu’elle invoque à l’appui de sa demande ne répond nullement aux
exigences de l’article 61 du Statut; il est postérieur a l’arrêt dont la révision est demandée . . .”12
.
There must be a misunderstanding here, because the facts we are referring to are: that the
FRY was not a party to the Statute at the time of the Judgment (which is certainly not “postérieur a
l’arrêt”); and that the FRY did not remain bound by the Genocide Convention continuing the
personality of the former Yugoslavia (which fact is not subsequent to the Judgment either). The
Respondent is probably referring to admission to the United Nations, but the FRY is not positing
this as a relevant fact.
2.3. In the same paragraph 68 of the Conclusion it is stated, apparently in connection with
the new fact, that: “il n’a, au surplus, aucun effet rétroactif ou rétrospectif . . .”13
. The FRY never
argued or contemplated that the newly discovered fact would or could have a retroactive effect.
2.4. There is no doubt, Mr. President, that this is a highly complicated matter, and
clarifications may serve a good purpose. Let me try to clarify once again the position of the FRY
in the light of the observations of our respected opponents.
The ratio decidendi of the 1996 Judgment
2.5. It is beyond debate that the Court held that “its only jurisdiction to entertain the case is
on the basis of Article IX of the Genocide Convention”14. The question arose what was the actual
basis of this legal conclusion. In other words, which were the perceived facts on which the Court
relied to reach this determination. Our conclusion was that the Court assumed to be a fact that the
FRY remained bound by the Genocide Convention, continuing the personality of the former
Yugoslavia. This conclusion is in full conformity with the wording of the Judgment. We have also
demonstrated that no other basis was, or could have been relied upon.

12CR 2002/41, p. 55, para. 68 (Pellet).
13Ibid.
14Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Judgment, I.C.J. Reports 1996, p. 621, para. 41.
- 18 -
2.6. During its oral argument yesterday, the Respondent raised again the arguments of
automatic succession. It also referred to allegations made before the 1996 Judgment, according to
which the FRY acquiesced in the jurisdiction of the Court on the basis of Article IX.
It is clear that these allegations are not relevant, certainly not relevant at this phase of the
proceedings, because the Court contemplated these suggested bases, but opted not to rely on
them15
.
This has actually been acknowledged by the Respondent. Professor Pellet has taken the
position that these issues have not been settled, and suggested that the Court may return to these
issues once the case was laid open for revision16
.
2.7. The Respondent further argues that the 1992 Declaration of the FRY is the basis of the
conclusion that the FRY was bound by the Genocide Convention. It is not stated how could the
Declaration and/or the Note bring about this result. A State cannot become bound by a treaty
otherwise but by treaty action. The Respondent does not allege that either the Declaration or the
Note was treaty action.
In a further attempt to complicate a rather straightforward issue, the Respondent suggests
that the FRY undertook commitments by this Declaration, and that these commitments cannot be
conditional, and cannot be derogated retroactively. The FRY never argued that it undertook
commitments by the Declaration and/or the Note, let alone that these commitments were
conditional, or that they should be derogated retroactively.
2.8. The FRY has already demonstrated that the Declaration and the Note were neither meant
to be treaty action, nor fit to be treaty action ¾ and they were not perceived as treaty action by
either the depositary or by the Court.
2.9. The Note accepts “full commitment” towards the United Nations Charter, and phrases
this the following way: “The Federal Republic of Yugoslavia, as a founding member of the United
Nations, acknowledges its full commitment to the world Organization, the United Nations
Charter . . .”17
.

15Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Judgment, I.C.J. Reports 1996, pp. 620-621, paras. 40-41.
16CR 2002/41, pp. 51–53, paras. 55, 56, 62, (Pellet).
17Ibid.
- 19 -
2.10. The situation is clear. Neither the Declaration, nor the Note meant to, or were capable
to create commitments ¾ and they did not create commitments. They stated that the FRY
continued the personality of the former Yugoslavia. If this is taken to be as a fact, it clearly follows
that the FRY has to acknowledge that it is bound by the United Nations Charter, and that it is also
bound by treaty commitments undertaken by the former Yugoslavia. But the basis of the
commitment is obviously not the Declaration.
2.11. The FRY certainly did not claim that the Declaration or the Note would make the FRY
a Member of the United Nations, or would make it a party to treaties. As it is precisely stated by
the depositary:
“Yugoslavia nevertheless advised the Secretary-General on 27 April 1992 that it
claimed to continue the international legal personality of the former Yugoslavia.
Yugoslavia accordingly claimed to be a member of those international organizations
of which the former Yugoslavia had been a member. It also claimed that all those
treaty acts that had been performed by the former Yugoslavia were directly
attributable to it, as being the same State . . .”18 (Judges’ folder, tab 3, p. 2; emphasis
added.)
2.12. Let us reiterate. Both the Declaration and the Note were political declarations stressing
identity. Such assertion of identity led to the perception that the FRY had remained a Member of
the United Nations, and had remained a party to the Statute and to other treaties. The assertion of
identity (continued personality) confirms a perceived state of affairs, rather than pretending to
create commitments, rights and obligations.
2.13. Having clarified this, it becomes clear that the allegation of the Respondent concerning
some “conditional commitment” is misplaced. The Respondent stated in its Written
Observations ¾ and repeated during its pleadings ¾ that Yugoslavia is trying “now retroactively”
to make its commitment (to be bound by the same international conventions to which the SFRY
had been a party) “purely conditional”. Having advanced this contention, the Respondent
speculates, that the condition posed is “that other parties to the same treaties would have to accept
Yugoslavia’s view regarding its being the sole continuator of the SFRY”19. Taking this

18See Multilateral Treaties Deposited with the Secretary-General, Historical information:
http://untreaty.un.org/ENGLISH/bible/englishinternetbible/historicalinf…; emphasis added.
19Written Observations of 3 December 2001, para. 2.22.
- 20 -
assumption, the Respondent comes to the conclusion that there is no basis in law to sustain this
alleged position20
.
2.14. But the essence of the matter is that the allegation and construction advanced by
Respondent simply does not comport with realities. First of all, the elements of this construction
are fictitious. Neither the Declaration, nor the Note nor the Application for Revision speak of
“conditional commitments”; the term “sole continuator” is not a term used by the FRY either. But
again, and more importantly, the Declaration and the Note were simply not documents by which
any commitment could have been created. They were not meant to create treaty commitments, and
they were not fit for such a purpose either. The only reference in the text to “commitments” was
reference to commitments of the former Yugoslavia. The position of the FRY was certainly not to
say: we shall abide by treaty obligations of the SFRY if other States accept the FRY as the “sole
continuator” of the former Yugoslavia. No condition was stated and it was not perceived that the
FRY had any choice in assuming or not assuming commitments, just as it had no choice in being or
not being a Member of the United Nations or of other international organizations, short, of course,
of resigning from membership or denunciation of a treaty.
2.15. The Declaration and the Note did not endeavour to create some new commitments or
facts, but assumed to be an already given fact that the FRY ¾ continuing the personality of the
former Yugoslavia ¾ remained a Member of the United Nations, and remained a party to treaties
concluded by the former Yugoslavia. This perception of facts was reflected in the treatment of
Yugoslavia by the depositary prior to 1 November 2000. The Judgment of 11 July 1996 also relied
on this assumption. Taking as a fact that the FRY continued the personality of the former
Yugoslavia was the only possible bridge linking the FRY with Article IX of the Genocide
Convention.
The issue of “retroactive change”
2.16. Mr. President, Members of the Court, in paragraph 1.4. of its Written Observations,
speaking of the findings in the Judgment with respect to jurisdiction over the FRY, Bosnia and

20Ibid.
- 21 -
Herzegovina states: “These findings cannot be changed retroactively.”21 This point was repeated
during the oral pleadings. If this assertion were true, revision would simply not exist as a remedy.
The essence of revision is, of course, to create an opportunity for changing what the Court found to
be correct at the time of the Judgment in the light of newly discovered facts of a decisive nature.
As a matter of fact, one of the preconditions of admissibility is exactly the potential of the newly
discovered fact to change the findings of the Court. Otherwise, it would not be decisive. In the
Tunisia v. Libya revision case, the Court held that the newly discovered fact was not decisive,
because “it would not have changed the decision of the Court . . .”
22. Revision would be pointless
and it would, indeed, not exist as a remedy, if the Court could not change its findings after a case
was laid open for revision.
2.17. The FRY certainly does not want to go beyond what is provided for in Article 61 of the
Statute. This is not an appeal. We do no challenge legal conclusions. What the FRY submits is
that there are newly discovered facts, which would have changed the decision of the Court had they
been known and taken as a fact at the time of the Judgment.
There are newly discovered facts of such a nature as to be a decisive factor
2.18. Mr. President, Members of the Court, turning to the issue of the newly discovered
facts, and in order to avoid any possible misunderstanding, I would like to reiterate the following.
On 1 November 2000 the FRY was admitted to the United Nations as a new Member. On
8 December 2000 the Legal Counsel called on the FRY to take treaty actions if it wished to become
a party to treaties to which the former Yugoslavia was a party. These are not the newly discovered
facts. These are events which have revealed the following two decisive facts:
(1) the FRY was not a party to the Statute at the time of the Judgment; and
(2) the FRY did not remain bound by Article IX of the Genocide Convention continuing the
personality of the former Yugoslavia.

21Written Observations of 3 December 2001, para. 1.4.
22Case concerning Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case
concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment,
I.C.J. Reports 1985, p. 214, para. 39.
- 22 -
2.19. The Judgment of 11 July 1996 had relied on the assumption that the FRY was a party
to the Statute by way of United Nations membership. The 1996 Judgment also relied on the
assumption that the FRY had remained bound by the Genocide Convention continuing the
personality and treaty membership of the former Yugoslavia. These perceived facts were of a
fundamental importance within the Judgment, and, consequently, a refutation of these perceived
facts is also of a fundamental importance.
2.20. The acceptance of the FRY to the United Nations did not “‘modify’ the pre-existing
situation” as asserted by the Respondent23. The acceptance of the FRY to the United Nations on
1 November 2000 certainly did not modify the pre-existing status of the FRY from membership to
non-membership. It rather revealed that the FRY was not a Member before ¾ and it also revealed
that it did not continue the personality of the former Yugoslavia.
2.21. The facts at the time of the Judgment are that the FRY:
¾ was not a party to the Statute, and
¾ that it did not remain bound by the Genocide Convention continuing the personality of the
former Yugoslavia.
These are newly discovered facts of such a nature as to be a decisive factor. These newly
discovered facts are prompting revision of the position taken in the Judgment regarding jurisdiction
ratione personae over the FRY.
The newly discovered facts were unknown to both the Court and to the Party claiming
revision at the time of the Judgment ¾ and this ignorance was not due to negligence
2.22. Mr. President, Members of the Court. I would like to turn now to the issue as to
whether the newly discovered facts were unknown to the Court and to the Party claiming revision.
In this rebuttal, I would link this issue with the question of negligence.
In its oral pleadings the Respondent suggested that the FRY and the Court knew about the
new facts, and that the FRY was simply obstinate in not following Security Council resolution 777,
and General Assembly resolution 47/124, although it was “à l’origine de cette situation”25
.

23CR 2002/41, p. 34, para. 10 (Pellet).
24CR 2002/41, p. 35, para. 14 (Pellet).
25CR 2002/41, p. 35, para. 13 (Pellet).
- 23 -
This is simply not true. The position of the FRY vis-à-vis its membership in the United
Nations and standing in general, was not ¾ as the Respondent suggests ¾ just irrational. It was
not an “everybody knew but Yugoslavia was just obstinate” situation. It was a genuine dilemma,
and a difficult one.
2.23. Let me add as a further example of conflicting perceptions that after Security Council
resolution 777 was adopted, the United States delegate commented on the provision that the FRY
shall not participate in the work of the General Assembly, and concluded: “To state the obvious, a
country which is not a Member of the United Nations cannot participate in the work of the
General Assembly.”26
2.24. Taking the floor immediately after the United States delegate, the Chinese delegate had
a completely different understanding of the resolution which was just adopted. In his words:
“Finally, I should like to point out that the resolution just adopted does not
mean the expulsion of Yugoslavia from the United Nations . . . The Federal Republic
of Yugoslavia will continue its participation in the work of the United Nations bodies
other than the General Assembly.”27
These differences resulted in documents not suited to settle intricate legal issues.
2.25. The situation emerging after resolution 47/1 was characterized by then
Professor Rosalyn Higgins with the following words:
“By its resolution 47/1 of 22 September 1992 the General Assembly determined
that the Federal Republic of Yugoslavia should not be allowed to participate in the
work of the General Assembly. The Assembly did recommend that the new Federal
Republic (Serbia-Montenegro) should apply for membership of the United Nations.
But the resolution did not either suspend, or terminate, Yugoslavia’s membership in
the UN. The outcome has been anomalous in the extreme.”
28
2.26. In a cautiously worded characterization the Court stated in its 8 April 1993 Order on
Provisional Measures that the solution adopted in the United Nations [by GA resolution 47/1] “is
not free from legal difficulties”. If you allow me to cite the words of another member of this
honoured bench, Judge Kooijmans states in 1999 that this 1993 characterization “must be called an
understatement”. He adds that:

26Debate, 19 September 1992, 113, UN Doc. S/PV.3116 (1992).
27Ibid.
28R. Higgins, The New United Nations and former Yugoslavia, International Affairs, 69, 3 (1993) at p. 479;
emphasis added.
- 24 -
“The dossier on the controversy with regard to the Federal Republic of
Yugoslavia’s continuation of the international personality of the Socialist Federal
Republic of Yugoslavia is full of legal snags. The decisions taken by the appropriate
United Nations bodies are without precedent and raise a number of yet unsolved
questions.”29
2.27. It is clear, Mr. President, Members of the Court, that it was not a situation in which the
true state of facts would have been evident, and what caused problems was just the “obstinacy” of
Yugoslavia.
If there are two plausible qualifications of the same complex and unorthodox situation,
“anomalous to the extreme” (according to one learned expert), or “full of legal snags” (according to
another learned expert), no standard of diligence could impose the duty on a party to seek
clarification by taking out of the two possible options exactly the one which is against its views
and convictions. The FRY was not negligent if it did not seek a resolution of the dilemma in the
direction opposite to its persuasions.
2.28. The answer to the question as to whether the FRY did or did not continue treaty
membership of the former Yugoslavia was not obtainable before the 1996 Judgment was
rendered ¾ and it remained unobtainable after the Judgment was given, until 1 November 2000.
Authorities identified by the Secretary-General (competent organ of the United Nations, competent
treaty organs, or contracting States) which could have settled the issue, failed to do so.
2.29. The FRY did take steps to clarify the situation, endeavouring to confirm one of the two
plausible interpretations of its emerging status. Quite naturally, the FRY sought clarification in the
direction which was in line with the views expressed in its 1992 Declaration. Seeking confirmation
of the assumption that the FRY did continue the personality of the former Yugoslavia, did remain a
Member of the United Nations and a party to treaties, the FRY acted as a Member of the United
Nations, and sent reports to various meetings of State parties to conventions ratified by the former
Yugoslavia. The FRY also responded to solicitations, and paid membership dues to the United
Nations, assuming that both the solicitation and the payment confirm the assumption that the FRY
did continue the personality and membership of the former Yugoslavia. But it was not the position,
or “change of position” of the FRY which could have determined the matter. Had this been the

29Case concerning Legality of Use of Force (Yugoslavia v. United Kingdom), Order of 2 June 1999, I.C.J.
Reports 1999 (II), separate opinion, p. 814, para. 11.
- 25 -
case, the FRY would have obviously remained a Member of the United Nations, continuing the
personality of the former Yugoslavia.
2.30. Let me also state here, that for years after the 1996 Judgment was rendered, the
Respondent and other States also felt it necessary to affirm one and to rebut the other possible
perception of facts. Three years after the Judgment of 11 July 1996 was rendered, on
8 December 1999, Bosnia and Herzegovina, Croatia, Jordan, Kuwait, Malaysia, Morocco, Qatar,
Saudi Arabia and Slovenia submitted a draft resolution30 proposing to the General Assembly to
conclude that the FRY did not continue the personality of the former Yugoslavia, and to request the
Secretary-General to eliminate practices supporting a contrary position. The proposed two
conclusions of the resolution read:
“[The General Assembly]
1. Considers that, as a consequence of its dissolution, the former Socialist
Federal Republic of Yugoslavia ceased to exist as a legal personality and that none of
its five equal successor States can be privileged to continue its membership in the
United Nations;
2. Requests the Secretary-General to take all necessary steps to ensure that the
administrative practice of the Secretariat is fully brought into line with the provisions
of the present resolution and other relevant Security Council and General Assembly
resolutions by the end of the fifty-fourth session of the General Assembly.”31
Adoption of these conclusions might have clarified the situation, and might have established as a
fact that the FRY did not continue the United Nations membership of the SFRY, was not a party to
the Statute by way of United Nations membership, and did not continue the membership of the
former Yugoslavia in other treaties either.
2.31. However, during the plenary meeting of the General Assembly on 15 December 1999,
the Acting President informed the Members “that consideration of draft resolution A/54/L.62 is
postponed to a future date”32. This was after the European Union appealed to the “successor
States” to refrain from tabling their draft resolution. The EU Non Paper does not support the draft
resolution, it rather hints clarification in the opposite direction.

30Bosnia and Herzegovina, Croatia, Jordan, Kuwait, Malaysia, Morocco, Qatar, Saudi Arabia and Slovenia: draft
resolution The equality of all five successor States to the former Socialist Federal Republic of Yugoslavia, UN
Doc. A/54/L.62 (1999).
31The text of this draft resolution was submitted with the Application for Revision as Ann. 21.
32See 80th Plenary meeting, 54th Session of the General Assembly, 15 December 1999, UN Doc.A/54/PV.80.
- 26 -
2.32. The EU Non Paper states that the draft resolution takes a “piecemeal approach”, and
that “this kind of approach was already rejected in the opinion of the Legal Advisor of the UN on
29 September 1992”33. The Non Paper also argues that “In accordance with Article 6 of the
UN Charter a recommendation on an expulsion of a member State of the Security Council is
required before action can be taken by the General Assembly.”34 (The recommendation is that of
the Security Council.) Again ¾ at least implicitly ¾ meaningful support was given to the
perception that the FRY remained a Member of the United Nations, and it would remain a member
until expelled following proper procedure. This was, again, certainly not conducive to seeking
clarification in the opposite direction, i.e., assuming to be a fact that the FRY was not a Member of
the United Nations, and seeking admission as a new Member.
2.33. Endeavouring to maintain their initiative, on 3 February 2000, the representatives of
Bosnia and Herzegovina, Croatia, Slovenia and the Republic of Macedonia submitted a letter
addressed to the President of the General Assembly, reminding the President that “the introduction
of an action on the draft resolution was postponed to a future date owing to the need for further
consultations”35. Consultations never yielded result, the General Assembly never discussed the
proposal to take an unequivocal position regarding the issue of continuity. Thus in February 2000,
clarification was again postponed.
2.34. It is impossible to say what is the date when the FRY could not have expected any
more clarification to the effect that it did, indeed, continue the personality and treaty membership
of the former Yugoslavia. It is not even sure whether there was such a date. Initiatives aimed to
resolve the dilemmas, and initiatives aiming to refute the proposition of continuity were indeed
submitted, but their consideration was repeatedly postponed. Bosnia and Herzegovina actually
states in its Written Observations that:
“The fact of the matter is that Yugoslavia kept to a position, which may even
have been defendable if the other new States emerging from the former Yugoslavia

33Letter of the Legal Counsel of the United Nations addressed to the Minister for Foreign Affairs of the Federal
Republic of Yugoslavia, dated 8 December 2000.
34Ibid.
35Letter dated 3 February 2000 from the representatives of Bosnia and Herzegovina, Croatia, Slovenia and the
former Yugoslav Republic of Macedonia to the United Nations addressed to the President of the General Assembly, UN
Doc. A/54/742 (2000).
- 27 -
would ¾ sooner or later ¾ have been willing to accept it. In other words: the
Yugoslav position could have turned out to be the internationally acceptable one.”36
2.35. The FRY applied for membership in the United Nations on 27 October 2000. This
application did not reveal in itself that the FRY was not a member of the Statute, neither did it
reveal in itself that the FRY did not continue treaty membership of the former Yugoslavia. It is not
even sure whether the outcome of the application would have been the same had the FRY
submitted it say in 1993, or after Dayton, or during the Kosovo crisis and NATO bombing. The
solution was not within the disposition of the FRY. The pertinent facts were only revealed after the
Security Council opted to follow the procedure for acceptance of new Members ¾ and after the
FRY was accepted as a new Member of the United Nations. Only when the Legal Counsel invited
the FRY to decide whether it would or would not adhere to treaties ratified by the former
Yugoslavia, it became clear that the FRY was not a party to these treaties before, and did not
remain bound by Article IX of the Genocide Convention.
2.36. For a long time the FRY sought confirmation of its views on continuity in order to be
treated as an equal member of the international community. Conflicting signals were coming, the
need to find a solution was growing. It is difficult to say whether the FRY followed one given trail
for too long, or not long enough. The power to establish one or the other perception was not in the
hands of the FRY.
2.37. Mr. President, Members of the Court, before submitting to you our conclusions, I
would like to ask you, Mr. President, to invite my colleague Mr. Vladimir DjeriÁ, who will discuss
specific issues linked to Article 35 of the Statute. Thank you very much.
Le PRESIDENT : Je vous remercie, Monsieur l’agent, et je redonne la parole maintenant à
M. Vladimir DjeriÁ.
Mr. DJERIC:
The FRY did not have access to the Court at the time of the 1996 Judgment
3.1. Mr. President, Members of the Court, I would like to begin by emphasizing once more
that our Application for Revision submits that there are two new facts of a decisive nature that have

36Written Observations of 3 December 2001, para. 2.33.
- 28 -
been discovered and that lay the 1996 Judgment open for revision. I would like now particularly to
focus on one fact ¾ that the FRY was not a party to the Statute and did not have access to the
Court at the time of the 1996 Judgment.
3.2. As we have stated at the beginning of our pleadings, access to the Court is an essential
precondition to the jurisdiction of the Court, which is regulated by Article 35 of the Statute.
Access to the Court is one thing, while jurisdiction is another. This has been stated by the Court in
the Fisheries Jurisdiction case to which I have already referred on the first day of the oral
hearings37. But it has also been more recently stated by the Court in its Orders in the cases
concerning Legality of Use of Force: “whereas the Court can therefore exercise jurisdiction only
between States parties to a dispute who not only have access to the Court but also have accepted
the jurisdiction of the Court, either in general form or for the individual dispute concerned”38
.
3.3. Bosnia and Herzegovina claims that the issue of whether the FRY was or was not a
Member of the United Nations is irrelevant for the present case. However, apart from its relevance
in relation the status of the FRY as a contracting party to the Genocide Convention ¾ which is
discussed by my colleagues ¾ the issue of United Nations membership of the FRY is crucial for
determining whether or not the FRY had access to the Court, in the first place.
3.4. In that regard, reference to the Declaration of 27 April 1992 in the 1996 Judgment can
only be interpreted as an assumption that the FRY had access to the Court on the basis of
continuing membership of the former Yugoslavia in the United Nations. Even in case that one
would accept the allegation of Bosnia and Herzegovina that the Declaration unconditionally and
irrevocably bound the FRY by all the international commitments of the former Yugoslavia, quid
non, this still would be inconceivable in relation to the United Nations Charter and the Statute of
the Court. A State cannot became a party to the Statute of the Court by a simple general
declaration adopted by an organ which is not competent to give undertakings under international
law. Therefore, in relation to access to the Court, the reference to the 1992 Declaration in the 1996
Judgment can only be interpreted as a reference to continuity of membership in the Statute of the

37See CR 2002/40, p. 28, para. 2.44.
38Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Reports
1999 (I), p. 132, para. 20; emphasis added; see also Yugoslavia v. Canada, France, Germany, Italy, Netherlands,
Portugal, United Kingdom, I.C.J. Reports 1999 (I and II).
- 29 -
Court and in the United Nations between the former Yugoslavia and the FRY. This, as we have
demonstrated, is also evidenced by the Yearbook of the Court of 1995-1996 and by earlier editions
of the Yearbook. Now, however, it has been revealed that the FRY was not a Member of the
United Nations before 1 November 2000.
3.5. Mr. President, how else could the FRY come before the Court? It had not become a
party to the Statute on the basis of Article 92, paragraph 2, of the United Nations Charter, nor had it
submitted a declaration pursuant to Security Council resolution 9 of 1946. The only remaining
basis for its access to the Court was the fact that, as a Member of the United Nations, it was ipso
facto party to the Statute.
3.6. However, yesterday Bosnia and Herzegovina again invoked Article 35, paragraph 2, of
the Statute, by claiming that even a State non-party to the Statute could come before the Court, if it
is a party to any treaty in force providing for the jurisdiction of the Court.
3.7. First, let me reiterate that the applicability of Article 35, paragraph 2, is a matter that can
only be discussed in the later phase of the proceedings for revision, once the 1996 Judgment has
been laid open. The applicability of the “treaties in force” provision from Article 35, paragraph 2,
of the Statute, even under the interpretation of Bosnia and Herzegovina, depends on whether or not
the FRY was bound by the Genocide Convention, on any other ground than continuity with the
former Yugoslavia. This necessitates that parties address further issues of treaty succession that
have not been addressed in this phase of the proceedings. In any case, I wish to refer the Court to
our earlier submissions concerning these issues, in particular the issue of automatic succession of
treaties. Finally, the FRY once more wishes to underline that it could not be bound by the
Genocide Convention on any other ground before its accession to the Convention in 2001, and that
in any case it has never become bound by Article IX of the Convention.
3.8. Now, coming back to the contention of Bosnia and Herzegovina that the FRY could
come before the Court under the “treaties in force” provision of Article 35, paragraph 2, of the
Statute, we have already demonstrated that this contention is untenable and that it actually does not
correspond to the practice of the Court and is contrary to the attitude of States. I wish to repeat:
there is not even one case in which a State non-party to the Statute has come before this Court
without previously fulfilling conditions prescribed by the Security Council. Therefore, reference to
- 30 -
earlier precedents made by Professor Pellet is not very well placed, because the real precedents all
point in one and the same direction: there was a total of four cases before this Court in which
States non-parties to the Statute came before the Court and in all of them such States followed
prescriptions of the Security Council39. However, the FRY, as is well known, has never given, nor
has it been asked to give, such an undertaking.
3.9. The precedents quoted by Professor Pellet ¾ the S.S. “Wimbledon”40 and the case
concerning Certain German Interests in Polish Upper Silesia41 ¾ actually do not change but
confirm this picture. Our point was that, at the time of the Permanent Court, the “treaties in force”
provision was considered to be confined only to the treaties establishing peace after the First World
War. Although in these two cases the Permanent Court did not make any explicit pronouncement
on the applicability of Article 35, paragraph 2, the factual pattern in both of them corresponded to
the intention of the drafters of the Statute of the Permanent Court ¾ one of the parties in cases was
a State not party to the Statute and the cases were brought under the jurisdictional provisions in the
legal instruments establishing peace after the First World War.
3.10. Bosnia and Herzegovina also contends that there has been no need to resort to
preparatory works of Article 35, paragraph 2, because the meaning of the provision is sufficiently
clear from its text and context42. We cannot subscribe to this view. There have indeed been
disagreements over the meaning and scope of the “treaties in force” provision in Article 35,
paragraph 2, such as for instance when the Permanent Court was revising its Rules of Procedure in
1926, and to which Bosnia and Herzegovina has also referred.
3.11. But even then, it is not correct to say, as the Respondent does in its Written
Observations, that during the 1926 debate on the revision of the Rules of Procedure “the discussion
proved entirely inconclusive”43. On the contrary, Judge Anzilotti, with the support of

39See Corfu Channel (United Kingdom v. Albania) (1947-1949); Monetary Gold Removed from Rome in 1943
(Italy v. France, United Kingdom and United States) (1953-1954); North Sea Continental Shelf (Federal Republic of
Germany/Denmark; Federal Republic of Germany/Netherlands) (1967-1969); and Fisheries Jurisdiction (Federal
Republic of Germany v. Iceland) (1972-1974).
40The S.S. “Wimbledon”, 1923, P.C.I.J., Series A, No. 1.
41Case concerning Certain German Interests in Polish Upper Silesia, 1925, P.C.I.J., Series A, No. 6.
42CR 2002/41, p. 50, para. 52 (Pellet).
43Written Observations by Bosnia and Herzegovina, para. 5.16.
- 31 -
President Huber, challenged the view espoused in the initial draft submitted by the Registrar.
According to this draft when one or more parties were not Members of the League a case might be
brought before the Court “in virtue of a general treaty in force between the Parties”. However,
different interpretation, interpretation supported by Judge Anzilotti and President Huber ¾ that the
“treaties in force” provision applied only to the peace treaties ¾, was obviously conclusive, as no
alternative interpretation was voiced by any other judge44
.
3.12. Finally, the interpretation proposed by the FRY is confirmed by the preparatory
works45. According to the preparatory works, only the treaties that were in force at the time the
Statute was adopted would fall under the expression “treaties in force” in Article 35,
paragraph 2 ¾ and this is also our position. All other treaties do not come within the ambit of this
provision. Therefore, parties to such treaties which are not parties to the Statute would have to
submit an undertaking of basic conditions of equality.
3.13. Mr. President, I will conclude with one last point. Bosnia and Herzegovina claims that
it fails to see why the exception under which a State non-party to the Statute could come before the
Court on the basis of any treaty in force providing for the jurisdiction of the Court, why this
exception would be destructive for the principle of equality46. In that regard, Bosnia and
Herzegovina claims that Article 94, paragraph 1, of the Charter only reiterates what is already said
in Article 59 of the Statute.
3.14. However, if, arguendo, Article 94, paragraph 1, of the United Nations Charter would
simply reaffirm Article 59 of the Statute, and if Article 94, paragraph 2, would apply in any case,
why has it been a decades-long consistent practice of the General Assembly and the Security
Council to require from non-Members of the United Nations wishing to come before the Court to
accept expressly Article 94 of the Charter? Obviously, simple acceptance of a treaty which would
provide for the jurisdiction of the Court is and cannot be the same as the acceptance of the Statute
and of Article 94 of the Charter.
3.15. Mr. President, Members of the Court, in my presentation I have demonstrated:

44P.C.I.J., Series D, Acts and Documents concerning the Organization of the Court, Addendum to No. 2,
Revision of the Rules of Court (1926), pp. 105-107.
45Article 32, paragraph 1, of the Vienna Convention on the Law of Treaties.
46CR 2002/41, p. 51, para. 54 (Pellet).
- 32 -
¾ that Article 35, paragraph 2, was not a basis on which the FRY could come before the Court in
1996, and
¾ that the FRY had access to the Court only on the basis of its continuity with the former
Yugoslavia, including in the United Nations, which enabled it to be a party to the Statute ipso
facto as a United Nations Member.
Mr. President, Members of the Court, thank you very much for your kind attention.
Mr. President, I would now like to ask you to call upon our counsel, Professor Zimmermann.
Le PRÉSIDENT : Je vous remercie, Monsieur DjeriÁ, et je passe maintenant la parole au
professeur Andreas Zimmermann.
Mr. ZIMMERMANN : Merci, Monsieur le président.
I. INTRODUCTION
4.1. Mr. President, Members of the Court, before addressing the arguments made by the
other side which relate to estoppel and connected issues, let me first make some more general
remarks.
4.2. In the current case, the Court is dealing with most tragic events that have taken place on
the territory of Bosnia and Herzegovina, and I can assure you that I am, like everybody in this
room ¾ but coming from Germany maybe even more so ¾, well aware of the historic dimensions
of the horrendous crimes that have taken place in the past on the territory of the former Yugoslavia.
Still this Court, whose function is to decide international disputes in accordance with
international law and those presenting their arguments before you should limit ¾ and indeed must
limit ¾ themselves to legal arguments. As was stated by this Court in the past:
“[I]t has been suggested, directly or indirectly, that humanitarian considerations
are sufficient in themselves to generate legal rights and obligations, and that the Court
can and should proceed accordingly. The Court does not think so. It is a court of law,
and can take account of moral principles only in so far as these are given a sufficient
expression in legal form. Law exists, it is said, to serve a social need; but precisely
for that reason it can do so only through and within the limits of its own discipline.”
47
4.3. Moreover, one should always diligently distinguish the issue of the Court’s jurisdiction
and the questions of access to the Court on the one side and substantive questions of international

47South West Africa Cases, Second Phase, I.C.J. Reports 1966, p. 34, para. 49, (emphasis added).
- 33 -
law on the other. As was recently stated by this Court: “whether or not States accept the
jurisdiction of the Court, they remain in any event responsible for acts attributable to them that
violate international law”48
.
4.4. Mr. President, Members of the Court, we have heard from the other side many factual
allegations which however only belong to the merits stage of this case. Currently we are dealing
with a request for revision whereby the FRY ¾ exercising its rights granted to it by virtue of
Article 61 of the Statute of this honourable Court ¾ is respectfully asking the Court to lay its 1996
Judgment open for revision. Indeed we are solely and exclusively dealing with the question of
admissibility of the request ¾ nothing more and nothing else.
4.5. I will now address one by one the arguments brought forward by my learned colleague
Professor Pellet and demonstrate that they can and must be refuted.
4.6. Let me start with the issue that ¾ according to allegations of Bosnia and
Herzegovina ¾ the FRY might very well have been a Member of the United Nations, even before
it was admitted to the United Nations in November 2000.
II. THE FEDERAL REPUBLIC OF YUGOSLAVIA HAS NOT BEEN A MEMBER OF THE UNITED
NATIONS BEFORE IT WAS ADMITTED TO THE ORGANIZATION ON 1 NOVEMBER 2000
4.7. Mr. President, Members of the Court, I have to admit that ¾ even stretching my legal
imagination to its limits and even beyond ¾ it is simply not conceivable that a State, that is in our
case the FRY, that is admitted as a new Member to the United Nations might have already been a
Member beforehand.
4.8. Indeed, Article 4 of the Charter of the United Nations itself presupposes that a State that
is admitted to the organization is beforehand not such a Member. The formerly disputed fact that
the FRY only became a Member of the United Nations on 1 November 2000 is also confirmed by
the circumstance that with regard to the Charter of the United Nations the FRY is listed by the
Secretary-General of the United Nations with the entry date “November 1, 2000” in the
“Multilateral treaties deposited with the Secretary-General”.

48Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Rwanda), Order of 10 July 2002, para. 93.
- 34 -
4.9. More importantly, Bosnia and Herzegovina itself did participate in the decision to admit
the FRY. Besides, Bosnia and Herzegovina had in the past frequently denied that the FRY had
already beforehand been a Member of the organization. This is, inter alia, demonstrated by the fact
that a letter by the Permanent Representative of Bosnia and Herzegovina stated: “[T]he Federal
Republic of Yugoslavia (Serbia and Montenegro) also has to follow the procedure for admission of
new Member States to the United Nations . . .” 49
4.10. This obviously implies that it had always been the considered view of Bosnia and
Herzegovina itself that the FRY had ex ante not been a Member of the organization before it was
admitted on 1 November 2000. Accordingly, Bosnia and Herzegovina may not claim during these
current proceedings ¾ as it did once again yesterday50 ¾ that the FRY had already been a Member
of the United Nations before it was admitted on 1 November 2000.
4.11. And indeed it has been demonstrated by my colleagues both on Monday and today
that ¾ contrary to what Bosnia and Herzegovina argued yesterday ¾ the 1996 Judgment was
based and must have been based on an assumed ex ante membership of the FRY in the
United Nations, since otherwise the Court would not have been open to the FRY. And this
assumed membership in the United Nations must in turn have necessarily been based on the
assumed fact that the FRY was ¾ erroneously ¾ considered to be identical with the former
Yugoslavia ¾ an assumed fact that later proved to be wrong and which now must give rise to
revision of the 1996 Judgment.
4.12. Mr. President, Members of the Court, let me now turn to the issue of estoppel and
connected issues. But before doing so I will first, once more, elaborate on the question whether
concepts of estoppel, acquiescence and mistake are ¾ as such ¾ applicable in revision
proceedings.

49UN Doc. A/51/564-S/1996/885 (Annex 5 of the Annex to the Application for Revision).
50CR 2002/41, para. 11 (Pellet); see also para. 3.7. of the Written Observations of Bosnia and Herzegovina of
3 December 2001.
- 35 -
III. GENERAL PRINCIPLES OF INTERNATIONAL LAW ARE NOT APPLICABLE IN REVISION
PROCEEDINGS TO THE EXTENT THAT ARTICLE 61 ITSELF CONTAINS
SPECIFIC REQUIREMENTS TO THE CONTRARY
4.13. With regard to procedural questions, this Court has first and foremost to apply its own
Statute. Thus, to the extent that the Statute contains an exhaustive regulation of certain procedural
issues, any application of more general rules of international law is not admissible and not
necessary because the Statute itself absorbs those principles. Obviously that would not hinder the
Court ¾ as the other side seems to mistakenly imply ¾ from applying generally Article 38 of its
Statute or general rules of interpretation51
.
4.14. But where and to the extent that Article 61 of the Court’s Statute prescribes a certain
result ¾ such as by providing that any ignorance not due to negligence does not hinder a State to
apply for revision ¾ Article 61 also implies that more general rules which would yield a different
result cannot be and should not be applied.
4.15. Mr. President, Members of the Court, let us take an example: the provision in
Article 61 that an application for revision is inadmissible where the ignorance is due to negligence
is obviously nothing but a more specific expression of the general principle of good faith. So why
would it then be appropriate to ¾ besides Article 61 of the Statute ¾ also apply the more general
principle of good faith? It is already incorporated in Article 61. Instead, one should then simply
and solely apply Article 61 itself.
4.16. Mr. President, Members of the Court, let me now come to my next point.
Even if one was to take the position that the application of general notions of mistake,
estoppel and forum prorogatum is not precluded by virtue of Article 61 of the Court’s Statute,
those party-oriented principles of international law cannot be applied with regard to questions
regulating the access of a State to the Court, that is, the relationship between a State and the Court.

51But see CR 2002/41, paras. 20 et seq. (Pellet) for such a proposition.
- 36 -
IV. REQUIREMENTS AS TO THE ACCESS OF STATES TO THE COURT AS CONTAINED IN
ARTICLE 93 OF THE UNITED NATIONS CHARTER AND IN ARTICLE 35 OF THE
COURT’S STATUTE ARE BY THEIR VERY NATURE MANDATORY AND CONSTITUTE
OBJECTIVE NORMS AND THEREFORE PRECLUDE THE APPLICATION OF
GENERAL PRINCIPLES OF INTERNATIONAL LAW RELATING TO
MISTAKE, ESTOPPEL AND ACQUIESCENCE
4.17. The question as to whether this Court has jurisdiction to entertain a given case only
becomes relevant once a party has access to the Court under Article 93 of the Charter and
Articles 34 and 35 of the Court’s Statute. The question of access to the Court is however not
subject to the discretion of the parties as is clearly demonstrated by Article 34 of the Statute.
4.18. Let me again give you an example: Could an entity which is not a State, let us say an
international organization, could such an entity by entry into a treaty provide for the jurisdiction of
the Court and then bring a contentious case before this Court? Certainly not, since Article 34,
paragraph 1, of the Court’s Statute expressly provides that only States may be parties to cases
before the Court. If, therefore, not even by way of treaty ¾ the most evident proof of consent ¾
the requirements for access to the Court may be circumvented, how should it then be possible to
provide for such access by even more informal forms of consent, that is, through principles of
estoppel, forum prorogatum or mistake?
4.19. But Article 34 of the Statute only partially regulates the issue who may appear before
this Court. Other aspects of that very same question ¾ that is, who has access to the Court ¾ are
governed by Article 93 of the Charter and Article 35 of the Statute, which provide for which States
and under what conditions the Court shall be open.
4.20. Accordingly ¾ just as the question of statehood is one to be objectively determined by
this Court regardless of the position taken by the parties ¾ other questions regulating the access to
the Court as a precondition ¾ as a precondition ¾ for the exercise of jurisdiction are similarly not
questions to be decided by the parties. Therefore neither estoppel, nor forum prorogatum nor
mistake, nor any other party-oriented mechanism can “contract away” these mandatory
requirements of access to the Court.
4.21. These limitations were clearly and convincingly outlined by Professor Thirlway when
he stated with regard to the concept of forum prorogatum: “Forum prorogatum only operates to
provide the element of agreement constitutive of jurisdiction; thus it cannot make up for a
- 37 -
jurisdictional or procedural defect which cannot be cured by the agreement of the parties ¾ e.g.
lack of status as a party to the Statute.”52
4.22. And quite similarly, Professor Schwarzenberger takes the position that: “if a party to a
dispute is a State to which the Court is closed, this suffices to prevent the case from receiving
consideration by the Court”53
.
4.23. Thus, only after a party’s access to the Court has been established could then general
principles of estoppel, forum prorogatum or acquiescence or mistake be invoked with regard to the
scope of jurisdiction ratione personae and ratione materiae given that the scope of the Court’s
jurisdiction ¾ unlike issues of access to the Court ¾ is subject to the consent of the parties as
evidenced by Article 36 of the Statute.
4.24. In our case, the FRY could thus in 1996 ¾ as not being a party to the Statute and as
not being a party to a treaty in force within the meaning of Article 35, paragraph 2, of the Court’s
Statute ¾ not appear before the Court and in the words of Professor Thirlway, this jurisdictional or
procedural defect could not be cured, neither by way of estoppel, nor by committing a mistake, nor
finally by way of forum prorogatum.
4.25. In case the Court should not follow the approach just outlined, I will now demonstrate
that ¾ even when applying general concepts of mistake ¾ the FRY would still not be barred from
requesting revision.
V. THE FRY IS NOT BARRED FROM APPLYING FOR REVISION
DUE TO CONCEPTS OF MISTAKE
4.26. Bosnia and Herzegovina claims that it was the FRY which ¾ through its own fault ¾
made a mistake in claiming identity with the former Yugoslavia and that it should for that reason
not be able to now claim the contrary54
.
4.27. But let me just remind you that ¾ as mentioned by my colleague earlier this
morning55 ¾ it was this Court which stated in 1993 with regard to the membership of the FRY in

52H. Thirlway, “The Law and Procedure of the International Court of Justice 1960-1989”, BYBIL 1998, 1 at p. 27.
53G. Schwarzenberger, International Law as applied by international courts and tribunals, Vol. IV, p. 434.
54CR 2002/41, para. 14 (Pellet).
55CR 2002/42 (Varady).
- 38 -
the United Nations that the solution found by the United Nations organs is not “free from legal
difficulties”56 and that other Members of this honourable Court went even further in describing the
legal uncertainties involved in the decision57
.
4.28 Besides, if one looks at the record leading to the adoption of both, Security Council
resolution 777 and General Assembly resolution 47/1, it is quite striking that a considerable
number of States including inter alia China58, Romania59, the Russian Federation60, Tanzania61
,
Zambia62, and Zimbabwe63 stated that the membership of the FRY in the United Nations had not
been terminated by said decisions.
4.29. Moreover, ¾ as was again demonstrated earlier by my colleagues ¾ even Bosnia and
Herzegovina had during proceedings before this Court taken the position that the FRY had
remained a Member of the United Nations when claiming that the FRY had committed a violation
of Article 2, paragraph 4, of the United Nations Charter64. I therefore find it indeed rather
surprising when counsel for Bosnia and Herzegovina now states that Bosnia and Herzegovina has
not taken a position as to the situation of the FRY with regard to its continued membership in the
United Nations. Instead it seems that Bosnia and Herzegovina had ¾ at least for the purposes of
our case ¾ committed the same mistake, when claiming a violation of Article 2, paragraph 4, by
the FRY ¾ committed the same mistake it now claims should preclude the FRY from requesting
revision65
.
4.30. Furthermore, I have already demonstrated during my last intervention ¾ relying on the
jurisprudence of this Court in the Temple of Preah Vihear case ¾ that a State may not, by simply

56I.C.J. Reports 1993, p. 14, para. 18.
57R. Higgins, The New United Nations and former Yugoslavia, International Affairs, 69, 3 (1993), p. 479; case
concerning Legality of Use of Force (Yugoslavia v. United Kingdom), Provisional Measures, Order of 2 June 1999,
I.C.J. Reports 1999, separate opinion, para. 21.
58S/PV.3116, p. 14.
59A/47/PV.7, p. 192: “We appreciate the fact that the resolution does not provide for either the suspension or the
exclusion of Yugoslavia from the United Nations.”
60S/PV.3116, p. 3.
61A/47/PV.7, p. 177, stating that the “remaining entities were not required to reapply and their existence was
never questioned”.
62A/47/PV.7, p. 172.
63A/47/PV.7, p. 163, referring to Serbia/Montenegro as the “remaining part”.
64Application of Bosnia and Herzegovina, para. 135.
65CR 2002/41, para. 14 (Pellet).
- 39 -
making a mistake, accept the jurisdiction of the Court, where the mistake relates to a fundamental
legal requirement66. Bosnia and Herzegovina tries to refute this by referring to the 1962 Judgment
in the same case which deals with the merits of the case67
.
4.31. I indeed did not quote this latter decision ¾ but on purpose. Why? Because latter
reference deals with a matter of substance, while it was the 1961 Judgment which more specifically
dealt with issues of jurisdiction. And besides the 1961 Judgment expressly addressed the issue of
mistakes related to fundamental issues, which are not subject to the disposition of the parties. That
means in other words that a State ¾ like the FRY ¾ which in 1996 was not a party to the
Statute ¾ may not by simply making a mistake provide for the jurisdiction of the Court.
4.32. Besides I have also already demonstrated that it was far from obvious ¾ to say the
least ¾ that the FRY was wrong at the time when it claimed to have continued the Yugoslav
membership in the United Nations and to be identical with the former Yugoslavia. And besides,
one may indeed not force a sovereign State to give up what we believe was a bona fide claim of
continued personality.
4.33. Mr. President, Members of the Court, I will now demonstrate in a next step that, even if
this Court takes the position that the principle of estoppel could come into play in revision
proceedings or in situations dealing with access to the Court, quid non, the specific requirements of
estoppel are not fulfilled in the case at hand.
VI. EVEN IF AS A MATTER OF PRINCIPLE ESTOPPEL MAY APPLY, QUID NON,
THE FRY IS STILL NOT ESTOPPED FROM REQUESTING REVISION SINCE
THE REQUIREMENTS OF ESTOPPEL ARE NOT FULFILLED
4.34. It has to be first noted, however, in that regard that Bosnia and Herzegovina itself has
admitted in its Written Observations that with regard to the Yugoslav request for revision it is “not
useful to refer to the doctrine of estoppel”68
.
4.35. Besides, the requirements for applying the concept of estoppel are not fulfilled. As
already stated by this Court in the North Sea Continental Shelf case69 and reiterated in the Military
Activities case:

66CR 2002/40, paras. 5.32–5.33.
67CR 2002/41, para. 17 (Pellet).
68Written observations by Bosnia and Herzegovina, para. 4.14.
- 40 -
“estoppel may be inferred from the conduct, declarations and the like made by a State
which not only clearly and consistently evinced acceptance by that State of a
particular régime, but also had caused another State or States, in reliance on such
conduct, detrimentally to change position or suffer some prejudice”
70
.
4.36. It has to be noted, however, that Bosnia and Herzegovina has not demonstrated in what
respect did it detrimentally change its own position or suffer prejudice due to the behaviour of the
Federal Republic of Yugoslavia.
¾ First, Bosnia and Herzegovina has until today continuously taken the position that the FRY
could not and did not continue the legal personality of the former Yugoslavia and that the FRY
was instead a simple successor of the former Yugoslavia.
¾ Secondly, the FRY had consistently asserted both before and outside this Court that it
continued the identity of the former Yugoslavia which led to conclusions regarding its
continued treaty membership until the new fact, which lead to this request for revision, became
known. This assertion by the FRY did not, however, force Bosnia and Herzegovina to
detrimentally change its own position or suffer prejudice ¾ quite to the contrary.
4.37. Indeed, had Bosnia and Herzegovina not accepted this approach for the sake of the
proceedings before this Court as it did71, it would have been necessary for Bosnia and Herzegovina
to
¾ first demonstrate that a case can be brought before this Court against a State which is not a
Member of the United Nations and thus not a party to the Court’s Statute;
¾ besides, it would have also been necessary for Bosnia and Herzegovina to furthermore
demonstrate that the FRY had either automatically succeeded to the Genocide Convention or
that the official Note of 27 April 1992 emanating from the FRY could be considered a valid
and effective notification of succession.
4.38. Accordingly, the previous perception of the relevant facts did indeed not constitute a
disadvantage for Bosnia and Herzegovina but instead did work in favour of Bosnia and
Herzegovina’s own legal position.

69I.C.J. Reports 1969, p. 26, para. 30.
70Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, pp. 414-415, para. 51; emphasis added.
71See Written Observations of Bosnia and Herzegovina, paras. 4.16-4.17.
- 41 -
4.39. Furthermore, as admitted by Bosnia and Herzegovina itself in its Written
Observations72 and as stated by this Court in the Military Activities case73, estoppel stems from the
general principle of good faith in international law. Thus as has already been demonstrated in our
Application74, the FRY did not act in bad faith, when it claimed to be identical with the former
Yugoslavia, given that the solution adopted within the framework of the United Nations ¾ as
stated by this Court, and let me repeat it ¾
¾ was not free from legal difficulties75 and that besides
¾ different organs of the United Nations, as well as the Secretary-General, in its function as
depositary, had taken action that could be interpreted as supporting the idea of identity between
the former Yugoslavia and the FRY.
4.40. Bosnia and Herzegovina may neither in that regard rely on the decision of 11 July 1996
where the Court had indeed observed that it had not been contested that Yugoslavia was a party to
the Genocide Convention, because ¾ as was already demonstrated by my colleague
Professor Varady ¾ this Judgment itself was based on the assumption of identity. Besides, as
stated by Judge Weeramantry in an earlier decision of this Court “revision necessarily involves an
alteration or modification of the previous Judgment”76, taking into account the newly discovered
fact previously unknown to the Court.
Mr. President, Members of the Court, I will now address the issue of acquiescence.
VII. THE FEDERAL REPUBLIC OF YUGOSLAVIA HAS NOT ACQUIESCED
IN THE JURISDICTION OF THE COURT
4.41. Bosnia and Herzegovina has further argued that the jurisdiction of the Court can be
based on the fact that the FRY has acquiesced in the jurisdiction of the Court77. This proposition
cannot be entertained, however, since the Court had found that it was unable to uphold any of the

72Written Observations of Bosnia and Herzegovina, para. 4.1.5.
73Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, pp. 414-415, para. 51.
74See in particular paras. 34-35.
75I.C.J. Reports 1993, p. 14, para. 18.
76Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of
20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J. Reports 1995, p. 288; dissenting opinion
of Judge Weeramantry, p. 320, Introduction (emphasis added).
77CR 2002/41, paras. 60 et seq. (Pellet).
- 42 -
additional bases of jurisdiction78, and since this finding was accepted by Bosnia and Herzegovina
itself in its Written Observations where it stated: “It is certainly not the intention of Bosnia and
Herzegovina to question these findings at this stage.”79
4.42. Besides ¾ as was demonstrated ¾, the Judgment of 11 July 1996 was solely, and
could solely based on the assumption that the FRY was a Member of the United Nations, a party to
the Court’s Statute and also bound by Article IX of the Genocide Convention as being identical
with the former Yugoslavia ¾ an assumption that has, however, ex post facto, proved to be
erroneous and which thus has given rise to our Application for Revision. Indeed after dealing with
various other additional bases of jurisdiction invoked by Bosnia and Herzegovina80, including the
concept of acquiescence the Court concludes81 ¾ and it is worth noting it again ¾ that it “is
unable to uphold any of the additional bases of jurisdiction invoked by the Applicant”82
.
Accordingly the Court found in 1996 that “its only jurisdiction to entertain the case is on the basis
of Article IX of the Genocide Convention”83
.
Thus, it is the considered view of the FRY that the issue of acquiescence has already been
definitely settled by the Judgment of the Court of 1996.
4.43. Should the Court, however, find otherwise it is submitted that the issue would then not
belong to the current phase of the proceedings dealing with the admissibility of the request for
revision, but that it should then instead be discussed at a later stage after the Court has first decided,
in accordance with Article 61, paragraph 2, of the Statute, that the Application was admissible.
4.44. Bosnia and Herzegovina in that regard proposes that the Court, should it find that the
requirements of Article 61 of the Court’s Statute are fulfilled ¾ as they are, as we believe ¾,
should immediately decide whether alternative bases for the Court’s jurisdiction would exist84
.

78I.C.J. Reports 1996, p. 620, para. 41.
79Written Observations of Bosnia and Herzegovina, para. 4.31.
80I.C.J. Reports 1996, pp. 619 et seq., paras. 37 et seq.
81Ibid., p. 620, para. 40.
82Ibid., p. 620, para. 41 (emphasis added).
83Ibid.
84CR 2002/41, para. 46 (Pellet).
- 43 -
4.45. Mr. President, Members of the Court, Article 61, paragraph 2, of the Court’s Statute
expressly provides that the proceedings for revision shall be opened by a judgment of the Court
declaring the application to be admissible. The proposal submitted by Bosnia and Herzegovina
thus runs counter to the very structure of Article 61 and can for that very reason alone not be
entertained. Moreover, once the case has been laid open for revision in accordance with Article 61,
paragraph 2, of the Statute difficult legal questions would have to be addressed by both, the Parties
and the Court, including inter alia the issue of automatic succession to the Genocide Convention.
It is therefore respectfully submitted that any such approach proposed by Bosnia and Herzegovina
is inadmissible given the bold wording, structure and purpose of Article 61, paragraph 2, of the
Statute.
4.46. Should the Court however not follow that course of action and decide to deal with that
issue already at this stage, the FRY will now demonstrate that it indeed never acquiesced in the
exercise of jurisdiction by the Court in a manner that could be now held against it. This is once
more due to the fact that the whole approach by the FRY had clearly been based on the
understanding that it was identical with the former Yugoslavia and that it could accordingly only be
considered bound by treaties previously entered into by the former Yugoslavia on the basis of said
assumption which however, by now, has proved to be an erroneous one.
4.47. Besides, the Court itself has frequently made explicit reference to the Yugoslav
Declaration of 27 April 1992, which in turn, as we know, was based on the idea of continuity,
thereby putting Bosnia and Herzegovina on notice that the idea of identity formed indeed the very
core and sole basis for the jurisdiction of the Court.
4.48. This is also demonstrated by the fact that the FRY withdrew its counterclaims once the
new facts leading to the Application for Revision became known, since it thereby became evident
that the Court could no longer exercise its jurisdiction vis-à-vis the FRY, the FRY not having
access to the Court under Article 35 of the Court’s Statute and the FRY besides not being bound by
Article IX of the Genocide Convention.
Mr. President, Members of the Court, before concluding, let me address the question whether
the jurisdiction of this honourable Court may be based on the concept of forum prorogatum. It may
not.
- 44 -
VIII. THE JURISDICTION OF THE COURT MAY NOT BE BASED
ON THE PRINCIPLE OF FORUM PROROGATUM
4.49. Bosnia and Herzegovina argues in that regard that, by making certain statements before
this Court, the FRY has implicitly accepted the jurisdiction of the Court as to Article IX of the
Genocide Convention. There are however four reasons each of which is in itself sufficient which
must necessarily lead to the conclusion that any such argument is not well-founded.
4.50. First, the FRY has never unequivocally indicated that it accepts the Court’s
jurisdiction. This Court has consistently held ¾ starting with its decision in the Corfu Channel
case85 ¾ that in order to provide for the jurisdiction of the Court under the principle of forum
prorogatum, a State must have voluntarily and indisputably accepted said jurisdiction in the course
of the proceedings. The FRY has however never acted that way. Indeed it was the Court which
held during the previous course of the proceedings in this case that “Yugoslavia consistently
contended during the subsequent proceedings that the Court lacked jurisdiction ¾ whether on the
basis of the Genocide Convention or on any other basis”86
.
And it was on that basis that the Court rejected the notion of forum prorogatum as an
additional basis for jurisdiction in its 1996 Judgment87. And after the 1996 Judgment had been
handed down, the FRY was left with no other choice than to take a position regarding the substance
of the claim, even if the position of the FRY with regard to the Court’s jurisdiction had not
changed.
4.51. Second, any counterclaims were presented by the FRY only after the Court had
previously found in 1996 that it has jurisdiction. Said determination was ¾ as we have
demonstrated ¾ however based on an assumed identity of the FRY with the former Yugoslavia.
Once new facts were revealed which proved that this assumption was erroneous, the case was laid
open for revision and this result cannot now be circumvented by the fact that the FRY itself had
previously relied on said Judgment ¾ indeed it had no other choice but to rely on it.
4.52. Moreover, even if one takes the position ¾ quid non ¾ that the FRY had accepted the
exercise of jurisdiction by the Court, it would have still not paved the way for the Court to exercise

85Corfu Channel, Preliminary Objection, Judgment, 1948, I.C.J. Reports 1947-1948, p. 27.
86I.C.J. Reports 1996, pp. 620-621; see also as to the provisional measures stage of the case, I.C.J. Reports 1993,
pp. 341-342.
87I.C.J. Reports 1996, pp. 620, 621.
- 45 -
jurisdiction. This is due to the fact ¾ as we have demonstrated beforehand ¾ that there are certain
minimum requirements for the Court to exercise jurisdiction with regard to a State which is neither
a party to the Statute nor has been invited by the Security Council under resolution 9 (1946) to
appear before the Court. The argument advanced by Bosnia and Herzegovina ¾ if taken
seriously ¾ would mean that States could circumvent the most basic requirements contained in
both the Charter of the United Nations and the Statute of the Court with regard to the issue of
access of States to the Court ¾ a result definitely not contemplated by the Statute, nor the Charter.
4.53. Finally, the argument brought forward by Bosnia and Herzegovina is ¾ once again ¾
not in line with the very structure of Article 61 itself. At this stage of the proceedings we are solely
dealing with the question as to whether the Application for Revision is admissible or not and we
believe it is. It is only after that stage has been passed that the Court could then discuss whether
there are alternative bases in order to provide for the Court’s jurisdiction. In that regard the
situation is parallel to the question whether Article 35, paragraph 2, of the Statute can apply in our
case ¾ quid non ¾ an issue that may be only properly addressed once the case has been laid open
for revision.
Mr. President, Members of the Court, it is for all of the foregoing reasons that we believe
that any arguments based on the notion of forum prorogatum should be also dismissed. Merci,
Monsieur le président, Membres de la Cour.
Le PRÉSIDENT : Je vous remercie, Monsieur le professeur. Je donne maintenant la parole
au professeur Tibor Varady en tant qu’agent de la République fédérale de Yougoslavie.
Mr. VARADY: Merci, Monsieur le président.
CONCLUSIONS
5.1. Mr. President, Members of the Court, let me present our conclusions. Revision is an
exceptional remedy. Only most unorthodox cases, which elude all patterns, can give rise to
revision. This is such a case. The dissolution of the former Yugoslavia did not follow any model
or pre-established pattern. It yielded more controversy than clear-cut situations. One of the most
consequential emerging dilemmas was whether the FRY continued the personality of the former
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Yugoslavia, or whether it was one of the newly independent States emerging as successors of the
former Yugoslavia.
In the first hypothesis, the FRY would have continued the membership of the former
Yugoslavia in the United Nations, and it would have remained bound by treaties ratified by the
former Yugoslavia. In the second hypothesis, the FRY could only have become a Member of the
United Nations by applying as a new Member. Likewise, in this second hypothesis, the FRY could
only have become bound by treaties by its own treaty action. Conceivably, the theory of automatic
succession could also have been relied upon, but the Court opted explicitly not to rely upon the
theory of automatic succession.
5.2. We have demonstrated that neither the Declaration nor the Note of 27 April 1992 was a
treaty action. They did not endeavour to create commitments, they rather expressed a view of the
dissolution of the former Yugoslavia, stating that the FRY was identical with the former
Yugoslavia ¾ which meant, of course, that it also had identical commitments. This perception was
also confirmed by the fact that the depositary never considered these documents as treaty actions.
The letter of the Legal Counsel of 8 December 2000 obviously does not consider the Declaration
and/or the Note as treaty action. Instead, it invites the FRY to undertake treaty action if it wishes to
become bound by relevant treaties. This invitation explicitly pertained to the Genocide Convention
as well.
5.3. It is clear that the Judgment of 11 July 1996 could only have been based on the first
hypothesis, that is, on the assumption that the FRY continued the personality and treaty
membership of the former Yugoslavia. Had the Court adopted the second hypothesis, it would
have had to establish how did the FRY become bound by the Genocide Convention. This was not
established. Instead, taking continued personality as a fact, the Court concluded that the FRY
remained bound by Article IX of the Genocide Convention. (At the same time, with regard to
Bosnia and Herzegovina ¾ and consistent with the concept of State succession ¾ the Court held
that it became bound by the Convention88.)

88Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary
Objections, Judgment, I.C.J. Reports 1996, p. 611, para. 20.
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The depositary offered support to this perception. Until 1 November 2000 “Yugoslavia” was
listed as an original Member of the United Nations since 1945, and it was listed as an original party
to the Statute. Furthermore, “Yugoslavia” was listed as a party to the Genocide Convention
since 1950. The assumption of continued personality was the only bridge linking the FRY with the
status of a listed participant which became a party to the Genocide Convention by ratification
in 1950.
5.4. Today it is clear that the FRY did not continue the personality of the former Yugoslavia.
But this was not clear before 1 November 2000. The letter of the Legal Counsel of
8 December 2000 explains, and makes it crystal clear, that before 1 November 2000 the FRY was
not treated as one of the newly independent States emerging as successors of the former
Yugoslavia. Instead, it was exactly the admission of the FRY to the United Nations on
1 November 2000, that triggered the new perception. It was in the light of the admission of the
FRY to the United Nations on 1 November 2000 that the FRY was perceived as a “Newly
Independent State”; and from this point on the depositary started treating the FRY as a “Newly
Independent State” which does not continue treaty membership of another subject, but has to
undertake specific treaty action if it wishes to be bound by treaties.
5.5. The Legal Counsel stated: “In the light of the circumstances of the FRY’s admission to
membership of the United Nations on 1 November 2000, it would be proper for the depositary to
treat the Federal Republic of Yugoslavia as a ‘Newly Independent State’.”89
5.6. As clearly confirmed by the Legal Counsel, it was the admission of the FRY to the
United Nations on 1 November 2000 that revealed the actual facts. This was the turning point in
perception. Even the depositary who has been first and foremost qualified to ascertain and observe
treaty membership, or continued treaty membership, was not ready to take a conclusive position
before 1 November 2000 ¾ when he took a position “in the light” of the admission of the FRY to
the United Nations on 1 November 2000. Drawing conclusions from these newly discovered facts,
the Legal Counsel invited the FRY to undertake treaty action, including treaty action with regard to
the Genocide Convention.

89Letter of the Legal Counsel of the United Nations addressed to the Minister for Foreign Affairs of the Federal
Republic of Yugoslavia, dated 8 December 2000.
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Since admission to the United Nations, and in the light of this admission, the FRY is treated
as one of the newly independent States.
5.7. Mr. President, Members of the Court, what we have here, is a clear case for revision. A
fundamental change took place with regard to the premises of the 1996 Judgment. The change is
not in the realm of law or legal deductions. The FRY is not questioning the legal reasoning of the
Court. The change pertains to what was perceptible and what was perceived as the factual basis of
the legal determination of jurisdiction.
Jurisdiction in personam over the FRY was based on the perceived fact that following the
break-up of the former Yugoslavia, the FRY continued the personality and treaty membership of
the former Yugoslavia. The legal conclusion that the Court has jurisdiction had its only basis in
this perceived fact.
5.8. Today it is clear that the FRY did not continue the personality of the former Yugoslavia,
and did not remain bound by Article IX of the Genocide Convention. This essential assumption on
which jurisdiction was based has been reversed. The legal reasoning is not at issue. On the ground
of what was perceived as a fact in 1996 no other legal determination was possible. The FRY
respectfully submits that the newly established facts lead to a new legal conclusion which remains
to be drawn ¾ and which can only be drawn after the case is laid open for revision.
Mr. President, Members of the Court, with your permission I will submit to you now our
submissions.
SUBMISSIONS OF THE FEDERAL REPUBLIC OF YUGOSLAVIA
For the reasons advanced in its Application of 23 April 2001 and in its pleadings during the
oral proceedings held from 4 to 7 November 2002, the Federal Republic of Yugoslavia respectfully
requests the Court to adjudge and declare:
¾ that there are newly discovered facts of such a character as to lay the 11 July 1996 Judgment
open to revision under Article 61 of the Statute of the Court; and
¾ that the Application for Revision of the Federal Republic of Yugoslavia is therefore admissible.
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Mr. President, Members of the Court, concluding my presentation, let me say that appearing
before this Court is an exceptional honour and a great privilege. I truly appreciate this honour and
this privilege, and I very much appreciate your attention. Thank you very much.
Le PRESIDENT : Je vous remercie, Monsieur l’agent. Ceci met un terme au second tour de
plaidoiries de la République fédérale de Yougoslavie. La Cour a pris note des conclusions finales
de la République fédérale de Yougoslavie. Elle se réunira à nouveau demain à 10 heures pour le
deuxième tour de plaidoiries de la Bosnie-Herzégovine.
L’audience est levée à 12 h 5.
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