CR 2006/45
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2006
Public sitting
held on Tuesday 9 May 2006, at 10 a.m., at the Peace Palace,
President Higgins presiding,
in the case concerning the Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)
________________
VERBATIM RECORD
________________
ANNÉE 2006
Audience publique
tenue le mardi 9 mai 2006, à 10 heures, au Palais de la Paix,
sous la présidence de Mme Higgins, président,
en l’affaire relative à l’Application de la convention pour la prévention et la répression du
crime de génocide (Bosnie-Herzégovine c. Serbie-et-Monténégro)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presieigtgins
Vice-Prsi-Kntasawneh
Ranjevaudges
Shi
Koroma
Parra-Aranguren
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda
Bennouna
Skotnikov
Judges ad hoc Mahiou
Kre ća
Couevrisrar
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
Al-K.vsce-prh,ident
RaMjev.
Shi
Koroma
Parra-Aranguren
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda
Bennouna
Sjoteiskov,
MaMhou.,
Kre ća, juges ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of Bosnia and Herzegovina is represented by:
Mr. Sakib Softić,
as Agent;
Mr. Phon van den Biesen, Attorney at Law, Amsterdam,
as Deputy Agent;
Mr.Alain Pellet, Professor at the University of ParisX-Nanterre, Member and former Chairman of
the International Law Commission of the United Nations,
Mr. Thomas M. Franck, Professor of Law Emeritus, New York University School of Law,
Ms Brigitte Stern, Professor at the University of Paris I,
Mr. Luigi Condorelli, Professor at the Facultyof Law of the University of Florence,
Ms Magda Karagiannakis, B.Ec, LL.B, LL.M.,Barrister at Law, Melbourne, Australia,
Ms Joanna Korner, Q.C.,Barrister at Law, London,
Ms Laura Dauban, LL.B (Hons),
Mr. Antoine Ollivier, Temporary Lecturer and Research Assistant, University of Paris X-Nanterre,
as Counsel and Advocates;
Mr. Morten Torkildsen, BSc, MSc, Tork ildsen Granskin og Rådgivning, Norway,
as Expert Counsel and Advocate;
H.E. Mr. Fuad Šabeta, Ambassadorof Bosnia and Herzegovina to the Kingdom of the Netherlands,
Mr. Wim Muller, LL.M, M.A.,
Mr. Mauro Barelli, LL.M (University of Bristol),
Mr. Ermin Sarajlija, LL.M,
Mr. Amir Bajrić, LL.M,
Ms Amra Mehmedić, LL.M, - 5 -
Le Gouvernement de la Bosnie-Herzégovine est représenté par :
M. Sakib Softić,
coagment;
M. Phon van den Biesen, avocat, Amsterdam,
comme agent adjoint;
M. Alain Pellet, professeur à l’Université de ParisX-Nanterre, membre et ancien président de la
Commission du droit international des Nations Unies,
M. Thomas M. Franck, professeur émérite à lafaculté de droit de l’Université de New York,
Mme Brigitte Stern, professeur à l’Université de Paris I,
M. Luigi Condorelli, professeur à la fact de droit de l’Université de Florence,
Mme Magda Karagiannakis, B.Ec., LL.B., LL.M.,Barrister at Law, Melbourne (Australie),
Mme Joanna Korner, Q.C.,Barrister at Law, Londres,
Mme Laura Dauban, LL.B. (Hons),
M. Antoine Ollivier, attaché temporaire d’ense ignement et de recher che à l’Université de
Paris X-Nanterre,
comme conseils et avocats;
M. Morten Torkildsen, BSc., MSc., Tork ildsen Granskin og Rådgivning, Norvège,
comme conseil-expert et avocat;
S. Exc. M. Fuad Šabeta, ambassadeur de Bosn ie-Herzégovine auprès duRoyaume des Pays-Bas,
M. Wim Muller, LL.M., M.A.,
M. Mauro Barelli, LL.M. (Université de Bristol),
M. Ermin Sarajlija, LL.M.,
M. Amir Bajrić, LL.M.,
Mme Amra Mehmedić, LL.M., - 6 -
Ms Isabelle Moulier, Research Student in International Law, University of Paris I,
Mr. Paolo Palchetti, Associate Professor at the University of Macerata (Italy),
as Counsel.
The Government of Serbia and Montenegro is represented by:
Mr. Radoslav Stojanović, S.J.D., Head of the Law Council of the Ministry of Foreign Affairs of
Serbia and Montenegro, Professor at the Belgrade University School of Law,
as Agent;
Mr. Saša Obradović, First Counsellor of the Embassy of Serbia and Montenegro in the Kingdom of
the Netherlands,
Mr. Vladimir Cvetković, Second Secretary of the Embassy of Serbia and Montenegro in the
Kingdom of the Netherlands,
as Co-Agents;
Mr.Tibor Varady, S.J.D. (Harvard), Professor of Law at the Central European University,
Budapest and Emory University, Atlanta,
Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Member of the International Law Commission, member of
the English Bar, Distinguished Fellow of the All Souls College, Oxford,
Mr. Xavier de Roux, Master in law, avocat à la cour, Paris,
Ms Nataša Fauveau-Ivanović, avocat à la cour, Paris and member of the Council of the
International Criminal Bar,
Mr. Andreas Zimmermann, LL.M. (Harvard), Professor of Law at the University of Kiel, Director
of the Walther-Schücking Institute,
Mr. Vladimir Djerić, LL.M. (Michigan), Attorney at Law, Mikijelj, Jankovi ć & Bogdanovi ć,
Belgrade, and President of the International Law Association of Serbia and Montenegro,
Mr. Igor Olujić, Attorney at Law, Belgrade,
as Counsel and Advocates;
Ms Sanja Djajić, S.J.D., Associate Professor at the Novi Sad University School of Law,
Ms Ivana Mroz, LL.M. (Indianapolis),
Mr. Svetislav Rabrenović, Expert-associate at the Office of th e Prosecutor for War Crimes of the
Republic of Serbia, - 7 -
Mme Isabelle Moulier, doctorante en droit international à l’Université de Paris I,
M. Paolo Palchetti, professeur associé à l’Université de Macerata (Italie),
cocomnseils.
Le Gouvernement de la Serbie-et-Monténégro est représenté par :
M. Radoslav Stojanović, S.J.D., chef du conseil juridique du ministère des affaires étrangères de la
Serbie-et-Monténégro, professeur à la faculté de droit de l’Université de Belgrade,
coagment;
M. Saša Obradovi ć, premier conseiller à l’ambassade de Serbie-et-Monténégro au Royaume des
Pays-Bas,
M. Vladimir Cvetković, deuxième secrétaire à l’ambassade de Serbie-et-Monténégro au Royaume
des Pays-Bas,
comme coagents;
M. Tibor Varady, S.J.D. (Harvard), professeur de droit à l’Université d’Europe centrale de
Budapest et à l’Université Emory d’Atlanta,
M. Ian Brownlie, C.B.E., Q.C., F.B.A., membre de la Commission du droit international, membre
du barreau d’Angleterre, Distinguished Fellow au All Souls College, Oxford,
M. Xavier de Roux, maîtrise de droit, avocat à la cour, Paris,
Mme Nataša Fauveau-Ivanovi ć, avocat à la cour, Paris, et membre du conseil du barreau pénal
international,
M. Andreas Zimmermann, LL.M. (Harvard), professeur de droit à l’Université de Kiel, directeur de
l’Institut Walther-Schücking,
M. Vladimir Djeri ć, LL.M. (Michigan), avocat, cabinet Mikijelj, Jankovi ć & Bogdanovi ć,
Belgrade, et président de l’association de droit international de la Serbie-et-Monténégro,
M. Igor Olujić, avocat, Belgrade,
comme conseils et avocats;
Mme Sanja Djajić, S.J.D, professeur associé à la faculté de droit de l’Université de Novi Sad,
Mme Ivana Mroz, LL.M. (Indianapolis),
M. Svetislav Rabrenovi ć, expert-associé au bureau du procureur pour les crimes de guerre de la
République de Serbie, - 8 -
Mr. Aleksandar Djurdjić, LL.M., First Secretary at the Ministry of Foreign Affairs of Serbia and
Montenegro,
Mr. Miloš Jastrebić, Second Secretary at the Ministry of Foreign Affairs of Serbia and Montenegro,
Mr. Christian J. Tams, LL.M. PhD. (Cambridge), Walther-Schücking Institute, University of Kiel,
Ms Dina Dobrkovic, LL.B.,
as Assistants. - 9 -
M. Aleksandar Djurdji ć, LL.M., premier secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,
M. Miloš Jastrebi ć, deuxième secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,
M. Christian J. Tams, LL.M., PhD. (Cambridge), Institut Walther-Schücking, Université de Kiel,
Mme Dina Dobrkovic, LL.B.,
comme assistants. - 10 -
The PRESIDENT: Please be seated. I have a small matter I would like to deal with first of
all before calling Mr.Djeri ć to the Bar. Last evening the Court received a communication from
Bosnia and Herzegovina. After consideration and as an exceptiona l matter, we have decided to
allow Bosnia and Herzegovina to make an extremely short public statement of information. This
exceptional permission turns upon the particular circumstances and is in no way to be regarded as a
precedent. I call on Mr. van den Biesen.
Mr. van den BIESEN: Thank you very much, Madam President.
Madam President, Members of the Court, yesterday the Co-Agent of Serbia and Montenegro
in his response to JudgeSimma’s question with respect to the redact ed versions of the
STC Minutes suggested that one of the members of our team, Ms Joanna Korner, had access to the
unredacted versions of these documents in her po sition as prosecutor at the ICTY. Because this
directly refers to her personal knowledge and her personal integrity , we would like to inform the
Court that this statement, this suggestion, is en tirely untrue. Ms Korner did not have access in her
previous position to the unredacted version of these documents and she had not received that
afterwards either. Thank you very much.
The PRESIDENT: Thank you. I now call upon Mr. Djerić.
DMJr.RI Ć: Thank you very much, Madam President.
4. RESPONDENT ’S ACCESS TO THE C OURT
I. Introduction
4.1. Madam President, distinguished Members of the Court, may it please the Court. We, on
the Respondent’s side, have been accused during these oral hearings of throwing “technicalities” in
1
the path of resolving this litigation, as Pr ofessor Franck, counsel for the Applicant, saidn
access and jurisdiction be regarded as mere “tec hnicalities”? Access and jurisdiction are not only
part and parcel of the proceedings but their existe nce is, in any adjudication, and especially in an
international adjudication, the fundamental prerequisite for addressing the merits. As the Court has
1
CR 2006/35, p. 52, para. 11 (Franck). - 11 -
recently confirmed, the fact that a case involves alleged violations of jus cogens , such as
prohibition of genocide, cannot set aside strict ju risdictional requirements contained in the Statute
(see case concerning Armed Activities on the Territory of th e Congo (New Application: 2002)
(Democratic Republic of Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the
Application, Judgment of 3February2006 , para. 64). Moreover, it is well established that the
questions of a party’s access to the Court are “fundamental” (case concerning Legality of Use of
2
Force (Serbia and Montenegro v. Belgium), Judgment of 15 December 2004, para. 46) . Still, the
Applicant labels them as a “technicality”. But these are the questions that go to the very heart of
the functioning of this Court and to the very heart of the system established by the Charter of the
United Nations: if a State without access to the Cour t could still appear before it, this would be a
de facto amendment of Article 35 of the Statute; if access to the Court would be based on anything
other than the clear action of the Security Coun cil and the General Assembly, as the case may be,
this would disrupt the balance between the prin cipal organs of the United Nations, established by
the Charter. The consequences of such a situation were yesterda y described by my colleague and
friend, Professor Zimmermann.
4.2. Madam President, Members of the Court, the question of the FRY’s access to the Court
before 2000 simply could not be avoided after the FRY’s admission to the United Nations that
same year. This admission resolved what was term ed as a “confused and complex state of affairs”
(Legality of Use of Force , para. 73) regarding the FRY’s pos ition vis-à-vis the United Nations
between 1992 and 2000. It is true that, after the admission, the FRY insisted that the existence of
this fundamental prerequisite for the exercise of the Court’s judicial function be determined in all
proceedings before the Court to which it was a part y, either as an applicant or as a respondent.
Therefore, after its admission to the United Na tions in 2000, the FRY/Serbia and Montenegro ⎯
sometimes alone, sometimes together with other pa rties, sometimes to its detriment and sometimes
to its benefit, but always in good faith ⎯ assisted the Court in the exercise of its “mandatory”
function “to enquire into the matter and reach its own conclusion” ( ibid., para.36) with regard to
the existence of access.
2(Hereinafter: “Legality of Use of Force”). Exactly the same text can be found in the other 2004 Legality of Use
of Force Judgments. - 12 -
4.3. One last word about “technicalities”. The characterization of genocide as an
international crime is probably one of the most important achievements of international law in the
twentieth century. The gravity of this crime and the importance of a possible conviction for
genocide must be mirrored in the strictness of the pr ocedure that might lead to such a conviction.
All the prerequisites for the exercise of jurisdiction must be in place and must be established to be
in place. To label the question of access as a me re “technicality”, as the Applicant does, is an
invitation to disregard the rule of law, while the full and unconditional respect for the rule of law is
necessary and indispensable in the present case more than in any other.
4.4. Madam President, I would like to say that I somewhat regret that the Applicant has in
fact avoided to deal with specific points relate d to access to the Court raised by Serbia and
Montenegro in the first round, especially with the very clear pronouncements on the statutory law
of access made by the Court in its 2004 Legality of Use of Force Judgments. However, the
Applicant contends that these Judgments are of no significance in the present case 3, and relies on
the concept of res judicata by arguing that the 1996 Judgment on preliminary objections prevents
any investigation by the Court of the issu es of access and jurisdiction in the present case 4.
However, the 2004 Legality of Use of Force Judgments cannot be ignored. They contain both
specific conclusions related to the FRY’s access to the Court before 2000, and general principles
related to the statutory law of access to the Court. However, as it seems that the Applicant ignores
or underplays both the general principles and the spec ific findings, it appears necessary, first of all,
to recall the principles of the law of access and apply them in the present case.
II. Difference between access and jurisdiction
4.5. First, the Court clearly said that access is di fferent from jurisdiction, and this is in fact
not a novelty but reaffirmation of its position taken in earlier cases:
“a distinction has to be made between a qu estion of jurisdiction that relates to the
consent of a party and the question of the right of a party to appear before the Court
under the requirements of the Statute, which is not a matter of consent” ( Legality of
Use of Force , para. 36. See, also, Fisheries Jurisdiction (Federal Republic of
Germany v. Iceland), Judgment, I.C.J. Reports 1973, p. 53, para. 11).
3
See, e.g., CR 2006/36, p. 25, para. 61(7) (Pellet).
4Ibid., p. 24, para. 61(5)-(6) (Pellet). - 13 -
4.6. In contrast to this, the Applicant seems to be trying systematically to deny or blur the
distinction between access and jurisdiction. For example, Professor Pellet, counsel for the
Applicant, criticizes as “artificial” the di stinction between access and jurisdiction 5. Further,
throughout its pleadings the Applicant has in fact claimed that the FRY’s access to the Court in the
present case could depend on its behaviour, which imp lies that access, just like jurisdiction, could
be constituted through party consen t or behaviour. Thus, the Applicant contends that the FRY,
either by failing to contest the Court’s jurisdiction for the lack of jus standi, or by undertaking to
abide by all the prior commitments of the fo rmer Yugoslavia, is now estopped from claiming
otherwise and must accept the consequences of its behaviour . But, even if this were true ⎯ and it
is not as Professor Zimmermann yesterday demonstrated ⎯ it would be simply irrelevant with
regard to the issue of access. The consent or behavi our of one party or both parties, either express
or implicit, positive or negative, cannot constitute access to the Court. Simply, access is “not a
matter of consent” and is not a matter of party beha viour. It is also independent of “the views or
wishes of the Parties” ( Legality of Use of Force , para. 36). It is an objective condition. For
example, in the Legality of Use of Force case between the FRY and France, the Respondent did not
raise the issue of access. Still, the Court considered that it had to examine the issue, because:
“that question . . . is independent of the views or wishes of the Parties; and the Court
would thus have to enquire into the matter and reach its own conclusion irrespective of
the attitude of the Parties. The Court w ill therefore proceed to examine the issue.”
(Case concerning Legality of Use of Force (Serbia and Montenegro v. France),
Judgment of 15 December 2004, para. 50.)
4.7. Finally, the possible situation of estoppel, which would prevent a party from
successfully claiming a certain right, is not relevant to access ⎯ because the enquiry into the
matters of access is the right of the Court itself, in the words of the Court, is “mandatory upon the
Court” ( Legality of Use of Force , para. 36). The principal role of the Court in assessing the
existence of a party’s access also implies that the Court need not consider the issue of access when
a party requests it to do so, but when it considers that the issue is ripe for consideration.
5
CR 2006/35, p. 61, para. 16 (Pellet).
6See CR 2006/36, p. 24, para. 61(3)-(4) (Pellet), and 29-30, paras. 15-16 (Franck); CR 2006/37, p. 37,
para. 10, and pp. 39-40, paras. 16-17 (Pellet). - 14 -
III. The nature of the Court’s findings on access
4.8. Madam President, the second principle that may be deduced from the Court’s
pronouncements in the 2004 Legality of Use of Force Judgments is that the existence of access is a
matter of objective law and is not dependent on the w ill of the parties. This is apparent from the
paragraph I have quoted, where the Court formulat ed access as “the right of a party to appear
before the Court under the requirements of the Statute, which is not a matter of consent ” (Legality
of Use of Force , para. 36 (emphasis added)). Thus, the Court would determine the existence of
access by considering whether the objective requirements of the Statute, contained in Article 35,
have been fulfilled. Consent, or, in other words, behaviour, of the parties, is irrelevant, and cannot
make the Court depart from the requirements of the Statute (see, also, case of the Free Zones of
Upper Savoy and the District of Gex (France v. Switzerland), Order of 19August1929, P.C.I.J.,
Series A, No. 22, 1929, p. 12).
4.9. In that, the Court’s determinations on access under Article 35 of the Statute are similar
to its determinations under Article 34, paragraph 1, with regard to the statehood of a party, because
both determinations concern the fulfilment of certa in objective legal requirements: in the case of
Article 34, paragraph 1, whether a party is a State; in the case of Article 35, whether it may appear
before the Court.
4.10. Madam President, it goes without saying that negative findings on access conclusively
dispose of a case. The Court cannot possibly proceed with a case if one of the parties is not a State
or cannot appear before it under Article 35 of the St atute. It is submitted, however, that positive
findings on access can always be reviewed until the final judgment in a case. The fact that access
is a fundamental precondition for the exercise of the Court’s judicial function means that its
determination that access exists could never be regarded as fina l and definitive until the final
judgment. Otherwise, it would be possible to render a final judgment in a case in which access ⎯
the fundamental prerequisite for the exercise of the judicial function ⎯ is missing, and this, of
course, would be against the mandatory norms of the Statute. For this reason, the Court must
always be certain that the objective require ments of access are fulfilled, because once it is
established that a party in a case does not have acc ess this prevents the Court from exercising its
judicial function over that party any longer. In the words of the Court: - 15 -
“The Court can exercise its judicial function only in respect of those States
which have access to it under Article 35 of the Statute. And only those States which
have access to the Court can confer jurisdiction upon it.” ( Legality of Use of Force ,
para. 46.)
4.11. It does not matter when the Court makes the determination that there is no access, but
once such determination is made, the Court must decline to entertain the case. Moreover, once it
becomes clear that a party does not have access, th e Court should make such a determination. Of
course, as will be seen in a minute, it may be that the question of party access is not all that clear
and that in such a case the Court may wait with making a conclusive finding, a final determination,
on access.
4.12. Madam President, we submit that the nature of access as a fundamental precondition
for the exercise of the Court’s judicial function means that a conclusive finding on the lack of
access should have both future and retroactive effect in an ongoing case. Once the Court is aware
that it cannot exercise judicial function, it cannot pr oceed with adjudication despite the fact that it
may have previously appeared that the necessary cond itions for such an exercise were in place, for
example because none of the parties raised the issue. The Court cannot possibly render a final
judgment in such a case, because that would be an ultra vires exercise of its powers.
4.13. This brings me to the issue of an existing judgment on preliminary objections, which
may exist in a case. Of course, this is exactly th e question that is before you, honourable Members
of the Court, and it is before you due to the Applicant’s insistence that the res judicata principle
should be the answer to all questions of procedure in the present case. In our submission, reliance
on the res judicata principle during the ongoing proceedings cannot override an objective finding
that the mandatory and fundamental prerequisite for the exercise of the Court’s judicial function is
missing. Otherwise, the res judicata principle would justify the Court’s ultra vires exercise of its
judicial functions contrary to the mandatory requirements of the Statute.
4.14. This is the reason why the Applicant’s reliance on res judicata is untenable. For
example, let us suppose that there was a judgment on preliminary objections in one case, and
subsequently the Court, in that same case or in another case, makes a finding that one of the parties
did not have access to it at the relevant time. Should the Court proceed with the case, despite its
full knowledge that one of the parties is not a Stat e or could not appear before it at the relevant
time, just because there is an earlier judgment on preliminary objections? It is submitted that this - 16 -
would be clearly in contravention of the manda tory requirements of the Statute contained in
Articles 34 and 35. Therefore, even if th e 1996 Judgment on preliminary objections were a
res judicata with regard to the FRY’s access to the Court, and it is not, it should still not be a bar to
re-examination of the issue of access for the reasons I have just described.
4.15. In any case, it should be recalled that the 1996 Judgment on preliminary objections is
not res judicata with regard to the issues of procedur e raised by Serbia and Montenegro, as has
been demonstrated by Professor Varady. In a moment, I will demonstrate that the 1996 Judgment
did not decide the question of the FRY’s access to the Court, which is an additional reason why this
question is not covered by the principle of res judicata in any case.
IV. When should the Court consider access?
4.16. Madam President, in a great majority of cases the issue of party access to the Court will
not be contentious. This is illustrated by the f act that there were indeed very few cases in the
practice of this Court, apart from the cases invol ving the FRY, in which the issue of access was
expressly raised (see, e.g., Fisheries Jurisdiction (Federal Republic of Germany v. Iceland),
Judgment, I.C.J. Reports 1973, p. 53, para. 11). Of course, this does not mean that the Court,
before rendering its final judgments, was not always sure that the requirements of access had been
satisfied: on the contrary, this was the fundament al precondition for the ex ercise of its judicial
function.
4.17. At the same time, the question of access and considerations thereof may be
complicated by various uncertainties, such as those re lated to the status of a party in relation to the
United Nations, as it was in the present case. As the Court said with regard to the status of the
FRY:
“the legal position of the Federal Republic of Yugoslavia within the United Nations
and vis-à-vis that Organization remained highly complex during the period
1992-2000. In fact, it is the view of the Court that the legal situation that obtained
within the United Nations during that eight -year period concerning the status of the
Federal Republic of Yugoslavia, after the break-up of the Socialist Federal Republic
of Yugoslavia, remained ambiguous and open to different assessments. This was due,
inter alia, to the absence of an authoritative dete rmination by the competent organs of
the United Nations defining clearly the lega l status of the Federal Republic of
Yugoslavia vis-à-vis the United Nations.” (Legality of Use of Force, para. 64.) - 17 -
4.18. In such a situation ⎯ extremely rare in international practice ⎯ the question of access,
which primarily depends on the status of a State vis-à-vis the United Nations, is also –– and I am
quoting the Court–– “ambiguous and open to different assessments”. However, the keys for the
resolution of this situation are, under the Charter, first of all in the hands of the General Assembly
and the Security Council. Therefore, it appears prude nt that the Court should not enter into a final
assessment of access “in the absence of an author itative determination by the competent organs of
the United Nations defining clearly the legal status” of the State in question. This seems to be
exactly the position taken by the Court with regard to the issue of access of the FRY in the period
between 1992 and 2000, including in the present case. As the Court said in its Legality of Use of
Force Judgments:
“The Court did not commit itself to a definitive position on the issue of the legal
status of the Federal Republic of Yugoslavi a in relation to the Charter and the Statute
in its pronouncements in incidental proceedings, in the cases involving this issue
which came before the Court during this anomalous period .” ( Legality of Use of
Force, para. 74; emphasis added.)
The reason for the absence of a definitive positi on on access appears to be, in the words of the
Court, the following:
“If, at that time [1999], the Court had had to determine definitively the status of
the Applicant vis-à-vis the United Nations, its task of giving such a determination
would have been complicated by the legal situation, which was shrouded in
uncertainties relating to that status.” (Ibid., para. 79.)
4.19. In the present case, a ll the necessary elements for su ch definitive determination
obtained, and the situation was clarified, after th e decision of the Security Council and the General
Assembly on the admission of the FRY to the Unit ed Nations in 2000. Indeed, such definitive
determination was eventually made by the Court in the Legality of Use of Force Judgments, and
now it should be applied in the present case.
4.20. In this context, I would also like to mention that the Applicant has repeatedly
emphasized that the Court delivers its judgments in the light of the information available to it at
that point in time . There is no dispute about this observation; but the question is: what is its
relevance for the present proceedings?
7
See CR 2006/36, p. 22, para. 56; CR 2006/37, p. 43, para. 24 (Pellet). - 18 -
4.21. First, as I have just demonstrated, the Court had not made a definitive determination on
the FRY’s access in the period between 1992 and 2000 . Specifically, and I will return to this
matter again, the Court did not do so in the 19 96Judgment on preliminary objections. Secondly,
and in the alternative, the fact that the Court made a positive finding on access in the light of the
information available to it at the time does not mean that it cannot revisit its ruling in the light of
new information showing that a party does not in fact have access to it. Otherwise, the Court
would be forced to act ultra vires in contravention of the mandatory requirements of the Statute. It
is true that the relevant moment in time when qualifications for access have to be present is the
moment when the proceedings were instituted. Bu t this does not mean and cannot mean that these
qualifications have to be judged solely on the basi s of information available at the moment when
the proceedings were instituted.
V. Could there be a difference in access between Applicant and Respondent?
4.22. Madam President, the Applicant has advan ced the idea that the political organs of the
United Nations imposed, in the words of Mr. Fr anck, “temporary asymmetry” between the FRY’s
rights and its duties under the Charter, and hinted at the possibility that the FRY’s right to bring
proceedings before the Court, its positive jus standi, was restricted, while at the same time its
negative jus standi remained intact 8.
4.23. It should first be noted, as Professor Varady demonstrated, that the Applicant’s
proposition starts from the false premise that th e FRY was a United Nations Member whose rights
were restricted under the alleged “internal sanction s”. In the present context, I would like to add
that, even if the FRY were a United Nations Member, quid non, a suspension of such a major
membership right, as is the right to institute pr oceedings before the Court, would certainly be
imposed explicitly and just never could be implie d or construed. Indeed, the very examples of
so-called asymmetry between rights and obligations provided by Professor Franck demonstrate that
limitations of rights are always explicit 9. However, the FRY’s jus standi before the Court was
simply never considered by the United Nations political organs.
8
CR 2006/36, pp. 39-40, paras. 42-46 (Franck); CR 2006/37, p. 23, para. 31 (Stern).
9CR 2006/36, p. 40, paras. 44-45 (Franck). - 19 -
4.24. Madam President, the Applicant’s conten tion also raises a more general issue of
whether, in principle, it would be possible, in the judicial system of the United Nations, to impose a
difference between positive and negative dimension of a State’s jus standi or access before the
Court. At the outset, it should be noted that such a proposition prima facie implies that a State may
be put in a position of fundamental inequality in relation to the Court’s proceedings: it could be
sued, but it could not sue.
4.25. The question of counter-claims is a vivi d illustration of a major inequality that would
be the result of such a proposition. Under Artic le 80 of the Rules of Court, a respondent may
present counter-claims. A counter-claim is not a defence but a separate claim ( United States
Diplomatic and Consular Staff in Tehran, Prov isional Measures, Ord er of 15 December 1979,
I.C.J. Reports 1979, p.15, para.24; case concerning Application of the Convention on the
Punishment and Prevention of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Counter-Claims, Order of 17 December 1997, I.C.J. Reports 1997 , paras.27-28). Thus, with
regard to the counter-claim, the respondent will be in the position of a plaintiff, while the applicant
will be in the position of a defendant. If a State’s positive jus standi could be suspended, such a
State would be prevented from presenting counte r-claims in a case in which it is a respondent.
Obviously, the proposition that the right to bring a claim may be taken away, while the obligation
to answer a claim before the Court would remain , would put a State in a position of fundamental
inequality within the case itself. We submit that such a fundamental inequality of the parties, if it
were ever possible, quid non, would lead to the impropriety of the Court’s exercise of jurisdiction
in such a case.
4.26. It is obvious, however, that the history of the current proceedings clearly demonstrates
that the proposition of Bosnia and Herzegovina is neither supported by law nor by facts: as is well
known, the FRY did present counter-claims agains t Bosnia and Herzegovina, and these were never
contested on ground of some “internal sanction s” that would prevent their submission. This
instance not only demonstrates that no “internal sanc tions” were in place against the FRY, but also
that no distinction has been made between th e Applicant’s and Respondent’s right to present
claims. - 20 -
4.27. More generally, the Court has never in its practice made any difference between
applicants and respondents. And this is eviden ced by another example from the present case: in
the provisional measures phase, the Court relied on the “treaties in force” clause of Article35,
paragraph 2, of the Statute as a prima facie (provisional) basis for access of the FRY ( Application
of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia (Serbia and Montenegro)), Order of 8 April 1993 , I.C.J. Reports 1993,
para. 19). I will deal with the relevant Order la ter, but for the present purposes, I would ask you to
consider why such reliance on Article 35, paragr aph 2, would be necessary if a respondent could
appear before the Court without fulfilling the necessary statutory requirements? I submit that it
clearly follows that the Court considered there could be no access, either for respondents or
applicants, without fulfilling the necessary requirements of Article 35 of the Statute.
4.28. Madam President, the differe ntiation between positive and negative jus standi clearly
does not find any support in the wording of Artic le35 of the Statute. Both paragraph1 and
paragraph2 of this Article use exactly the same phrase ⎯ that the Court “shall be open”. In the
French version, as well, exactly the same phrase ⎯ “est ouverte” ⎯ is used in both paragraph1
and paragraph2 of Article35. In no way does th is wording distinguish between the situation in
which the Court is “open” to an applicant and th e situation in which the Court is “open” to a
respondent. It equally applies to both. It is neutral as regards the position of a State in a litigation.
4.29. That the phrase “shall be open” must e qually apply to respondents and applicants is
also strongly supported by the systematic interp retation of Article35 of the Statute taken as a
whole. Paragraph1 of Article35 of the Statute says: “[t]he Court shall be open to the States
parties to the present Statute”. The phrase “shall be open” clearly means that States parties to the
present Statute may sue and may be sued before the Court. No one has ever suggested otherwise.
Paragraph 2 of Article 35 of the Statute uses the same phrase as paragraph 1 and there is nothing to
indicate that it should be interpreted differently in paragraph 2 than in paragraph 1 of Article 35.
4.30. As noted by Professor Yee in relation to the wording of Article 35, paragraph 2, of the
Statute of the PCIJ ⎯ and of course, the present Statute uses the identical wording of the relevant - 21 -
phrase: “[t]he language of the Statute of the PCIJ speaks of being ‘open to other States’, without
any distinction between applicant and non-applicant States” . 10
4.31. Furthermore, in the context of Article 35, the statutory phrase “shall be open” has been
frequently replaced with the followi ng words: “access” (see, e.g., Legality of Use of Force
Judgments, para. 46; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Jurisdiction
of the Court, Judgment, I.C.J. Reports 1973 , p. 53, para. 11) 11and “the right to appear” (see, e.g.,
Legality of Use of Force Judgments , para. 46). None of these synonyms implies any difference
between applicants and respondents, on the contrary: both the words “appear” and “access” clearly
relate to the ability of a State to be a party befo re the Court, and are completely neutral as regards
its position in a litigation.
4.32. In conclusion, Madam President, the word s “the Court shall be open” in Article 35 of
the Statute, in their natural and ordinary meaning, do not lend themselves to different
interpretations. Their meaning is clear a nd unambiguous: the Statute does not make any
distinction between respondents and applicants; between States that sue and that are sued.
4.33. When the wording of a provision is so abundantly clear, this should be the end of the
matter (Competence of the General Assembly for the Admission of a State to the United Nations ,
Advisory Opinion, I.C.J. Reports 1950 , p. 8). But in any case, th e idea that there could be a
difference in access to the Court between applicants and respondents does not receive support from
the drafting history of Article 35, paragraph 2, e ither. On the contrary, as noted by Professor Yee
“it contradicts the drafting history” 12. I will now, with your permission, turn briefly to this drafting
history.
4.34. As far as Article35 of the present Statute is concerned, it is almost identical with the
text of Article35 of the Statute of the Perm anent Court, apart from purely formal changes
10Sienho Yee, “The Interpretation of ‘Treaties in Force’ in Article 35 (2) of the Statute of the International Court
of Justice”, 47 ICLQ 884, p. 896.
11
It should also be noted that the documents related to the drafting ofSecurity Council resolution 9 use the
phrases “access to the Court” and “open to States” interchangeab ly. See Letter of the President of the Court sent to the
Secretary-General of the United Na tions, dated 1 May 1946 (United Nations doc. S/99, 5 July 1946) and Report of
Mr.Beelaerts van Blokland, Rapporteur of the Committee of Experts, concerning the conditions under which the
International Court of Justice shall be open to States not Parties to the Statute (United Nations doc. S/169,
24 September 1946).
12Sienho Yee, “The Interpretation of ‘Treaties in Force’ in Article 35 (2) of the Statute of the ICJ”, 47 ICLQ 884,
p. 896. - 22 -
necessitated by references to the United Nations instead of to the League of Nations and its
Covenant and the terminological changes in order to bring the English text more in line with the
13
French text . The changes did not concern the phrase “sh all be open”. Therefore, the drafting
history of Article 35 of the old Statute is clearly relevant to the wording of Article 35 of the present
Statute.
4.35. During the drafting of Article 35 of the old Statute, a difference in conditions of access
to the Court, depending on the position of a State as an applicant or respondent, was mentioned by
the Chairman of the Sub-Committee of the Third Committee of the First Assembly of the League
of Nations 14. However, there is no indication that this view was ever accepted . 15
4.36. Moreover, the discussion during the drafting of the amendments to the Rules of the
Permanent Court in 1926, which took place only six years after the drafting of the Statute, provides
an illuminating insight regarding the understandi ng of this issue. During the discussion on
implementation of Article35, para graph2, of the Statute into the Rules of Court, the Registrar
remarked that, in the S.S. “Wimbledon” case, the Court had decided that the obligation to accept
the conditions laid down by the Council in the context of Article35, paragraph2, of the Statute
could only be imposed on appli cants and not on respondents 1. However, the then President of the
Court, JudgeMaxHuber, rejected this interpretati on and insisted that the co nditions laid down by
the Council resolution had to be accepted in all cases, regardless of whether the State not a Member
of the League was in the position of respondent or applicant:
“It was quite natural that States that wished to profit by the institution
established by the League of Nations should have to accept the conditions fixed by the
Covenant, and that States which, for one reason or another, had not yet done so should
accept them by means of this declaration, whether they appeared before the Court as
Applicant or Respondent.” (Ibid., p. 106; emphasis added.)
No other judge voiced any different view or di sagreement with the interpretation given by the
President.
13
Documents of the United Nations Conference on International Organization, Vol. XIV, p. 839.
14Permanent Court of International Justice, Documents c oncerning the action taken by the Council of the League
of Nations under Article 14 of the Covenant and the adoptioby the Assembly of the Statute of the Permanent Court,
p. 141.
15See Sienho Yee, “The Interpretation of ‘Treaties in Force’ in Article 35(2) of the Statute of the ICJ”,
47 ICLQ 884, pp. 893-894.
16Publications of the Permanent C ourt of International Justice, Series D, Acts and Documents concerning the
organization of the Court, Addendum to No. 2, “Revision of the Rules of Court” (1926), p. 75). - 23 -
4.37. Finally, the question of distinction be tween applicants and respondents was not raised
during the drafting of the present Statute. It is submitted that any possible distinction between
applicants and respondents with regard to access to the Court would have had such a fundamental
impact on the equality of States that it would have been raised and discussed during the drafting of
the Statute in an explicit way. But it was not.
VI. Access and the 1996 Judgment on preliminary objections
4.38. Madam President, the Applicant claims that the Court in fact decided the issue of
access in its 1996 Judgment on preliminary objections 1. I hope that it is a common ground that a
decision on access is a decision on the fulfilment of the requirements contained in Article 35 of the
Statute. If this is so, then the Applicant’s cl aim that the Court actually made a decision on access
in 1996 is clearly contradicted by the unequivocal pronouncement made by the Court in 2004 that
“[t]he question of the status of the Federal Repub lic of Yugoslavia in relation to Article 35 of the
Statute was not raised and the Court saw no reason to examine it ” (Legality of Use of Force ,
para. 82; emphasis added).
4.39. If the Court, in its own words, “saw no reason to examine” “the question of the status
of the Federal Republic of Yugosla via in relation to Article35 of the Statute”, then it clearly
follows that the Court actually did not decide this question, that is, access. This is further
confirmed by the fact that the Court also said that it:
“did not commit itself to a definitive positi on on the issue of the legal status of the
Federal Republic of Yugoslavia in relation to the Charter and the Statute [which
obviously includes Article35, if I may note] in its pronouncements in incidental
proceedings, in the cases involving this issue which came before the Court during this
anomalous period” (ibid., para. 74; emphasis added).
4.40. And, of course, the present case was one of the cases that involved the issue of the
legal status of the FRY in relation to the Ch arter and the Statute. And, of course, the
1996 Judgment on preliminary objectio ns is a judgment rendered in incidental proceedings, as the
proceedings on preliminary objections are, according to the Rules of Court, incidental
17
CR 2006/36, pp. 48-49, para. 15 (Stern). - 24 -
18
proceedings . It thus clearly follows that the Court did not commit itself to a definitive position on
access of the FRY to the Court in its 1996 Judgment.
4.41. Madam President, I respectfully submit that these pronouncements of the Court, and I
even dare say an authentic interpretation, clearly show that the FRY’s access to the Court is not,
and cannot be, res judicata under the 1996 Judgment.
4.42. Moreover, as I have already demonstrated, the fundamental nature of access as a
precondition for the exercise of the Court’s judicial function means that positive findings on access
cannot be taken as definitive and final until the fi nal judgment is rendered in proceedings, because
otherwise it would be possible that the Court renders its final decision with respect to a party over
which it cannot exercise judicial function. In ot her words, access is so fundamental that, until the
final judgment, it overrides the principle of res judicata. Thus, even if the 1996Judgment had
made a finding on access, quid non, that would not be a bar for the Court to re-examine this issue
until the end of the proceedings.
VII. The FRY’s access to the Court under Article 35, paragraph 1, of the Statute
4.43. Madam President, the Applicant devoted cons iderable time to arguing that the FRY, in
any case, was to be considered a Member of the United Nations in 1993. ProfessorStern admits
that the Court ruled differently in the Legality of Use of Force Judgments, but submits that this
19
ruling should be confined to the Legality of Use of Force cases . However, she does not put
forward any argument why the objective finding of the Court ⎯ that the FRY was not a United
Nations Member before 2000 ⎯ should be confined to the Legality of Use of Force cases, except
lamenting that counsel for the Respondent quote the Legality of Use of Force Judgments more
often than the decisions in the present case 20. But how could we act differently, if the Court, in its
own words, never ruled in the present case on the Respondent’s access to the Court, while in the
Legality of Use of Force cases it made an unequivocal ruling that the FRY was not a Member of
the United Nations before 2000, and supplied a long reasoning to support this ruling?
18
See Rules of Court, Part III, Proceedings in contentious cases, Section D, Incidental proceedings, Subsection 2,
Preliminary objections.
19
CR 2006/37, p. 10, para. 3 (Stern).
2CR 2006/37, pp. 10-11, para. 3 (Stern). - 25 -
4.44. Yesterday my colleague Professor Varady refuted the Applicant’s arguments regarding
the alleged United Nations membership of the FRY: and I would therefore not use much time on
this point and would like just to add a couple of additional observations.
4.45. Madam President, the Applicant would like us to believe that the FRY was a United
Nations Member which was deprived of certain me mbership rights by “internal sanctions”, while,
at the same time, a majority of Member States considered, and repeatedly said so, that the FRY was
not a United Nations Member. This is clear fro m the statements that the FRY “cannot continue
automatically the membership of the former Socialist Federal Repub lic of Yugoslavia” and
“therefore . . . should apply for membership” 21. The clear position of the majority of States, and the
Security Council and the General Assembly, that there was no continuity testifies that the
Applicant’s claim is not borne out by facts. Th e Applicant’s claim means that the very organs
which rejected continuity and told the FRY to apply for membership, simultaneously thought that
the FRY was a United Nations Member and suspended its membership rights on that basis.
4.46. It is, of course, true that at the same time there were different signals coming from the
United Nations, and some privileges that resemb led, but never amounted to, membership rights
were granted to the FRY, probably for reasons of pragmatism and as a way to leave open the
channels of communication with it. This is ev ident from the very examples put forward by the
Applicant. In any case, these privileges could not amount to United Nations membership but only
testified to “amorphous status” (Legality of Use of Force, para. 74) of the FRY vis-à-vis the United
Nations. However, these privileges that the FR Y was let to enjoy, together with favourable
position of some States towards continuity, co mplicated the situation and gave the FRY a
reasonable hope that its continuity with the former Yugoslavia might, eventually, be recognized.
4.47. According to the Court, these events “tes tify to the rather confused and complex state
of affairs” during the “anomalous period” between 1992 and 2000 ( ibid., paras. 73-74). But let me
repeat, Madam President, the Court clearly said that this sui generis position of the FRY between
1992 and 2000 “could not have amounted to its membership in the Organization” (ibid., para. 78).
21
Security Council resolution 777 (1992), para. 1, and General Assembly resolution 47/1 (1992), para. 1. - 26 -
4.48. Our submission in the first round was that the FRY was not a Member of the United
Nations until 1 November 2000, and was therefore not ipso facto party to the Statute, and that the
Court was not open to it on that basis before that date . This submission was based on the Court’s
ruling in the Legality of Use of Force Judgments that the FRY had not had access to the Court in
1999 because it had the status of membership in the United Nations as from 1November2000
(Legality of Use of Force, paras. 78 and 91).
4.49. The Court’s determination that the objective legal requirements of access are not
fulfilled by one party in one particular period of time, must necessarily and equally apply in all
cases, in which this same party appears, that have been instituted in the same period of time.
4.50. Consequently, the determination that the FRY did not have access to the Court on the
basis of Article 35, paragraph 1, of the Stat ute in the period before 1 November 2000 (when it
became a Member of the United Nations) must necessarily and equally apply to the present case,
which was instituted in 1993. If the FRY was not a Member of the United Nations before 2000, it
could not have access to the Court on that basis before 2000. It follows that in each and every case
instituted before the admission of the FRY to th e United Nations in 2000, the FRY simply did not
have access to the Court, and the Court cannot ex ercise its judicial function in respect of the
FRY/Serbia and Montenegro in the cases instituted during that period. Between the date on which
this case was instituted, 20 Marc h 1993, and the date on which the Legality of Use of Force cases
were instituted, 29 April 1999, there were no circ umstances that would affect this conclusion. As
the Court clearly said, the FRY was not a Member of the United Nations before 2000.
4.51. Madam Stern, counsel for the Applicant, tried to distinguish the two cases, by saying
that after the institution of the present proceedings the General A ssembly decided to exclude the
23
FRY from participation in the ECOSOC . However, this decision was only a consequence of the
rejection of the FRY’s claim to c ontinuity with the former Yugosla via. As the General Assembly
started to specify the consequences of such rejec tion, it was logical to mention the ECOSOC too.
But these decisions, including resolution 47/229 on the FRY participation in ECOSOC, did not
provide any trace of evidence of a possible FRY membership in the United Nations. They only
22
CR 2006/13, p. 15, para. 2.18.
2CR 2006/37, p. 19, para. 21 (Stern). - 27 -
implemented the decision to reject the FRY’s claim to continuity with the former Yugoslavia,
which had been taken already in 1992.
VIII. The FRY’s access to the Court under the “treaties in force” clause
in Article 35, paragraph 2, of the Statute
4.52. Madam President, Members of the Court, th e Applicant contends that Article IX of the
Genocide Convention is an independent and suffici ent basis for the FRY’s access to the Court in
the present case, regardless of whether the FRY was or was not a Member of the United Nations at
the relevant time, because the Court held that the Genocide Convention was a “treaty in force”
within the meaning of Article 35, paragraph 2, of the Statute 24. According to Professor Stern, the
Court did so explicitly in its Order of 8 Ap ril 1993, and implicitly in the 1996 Judgment on
preliminary objections and, thus, this is res judicata 2.
4.53. As my colleague Professor Zimmermann will further demonstrate, the FRY did not
become a party to the Genocide Convention until 2001, and then with a reservation to its
Article IX. This reason alone would be sufficient to dispose of the Applicant’s arguments on this
point. In the alternative, I will now demonstrat e that the Applicant’s cl aim based on Article35,
paragraph 2, cannot hold in any case.
4.54. Of course, it cannot be disputed that the Court said in 1993 that:
“a compromissory clause in a multilateral convention, such as ArticleIX of the
Genocide Convention relied on by Bosnia-Her zegovina in the present case, could, in
the view of the Court, be regarded prima facie as a special provision contained in a
treaty in force . . .” (Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and
Montenegro)), Order of 8 April 1993, p. 14, para. 19).
4.55. But this was clearly a prima facie view, a provisional view, as the Court itself said in
1993, and reiterated in the 2004 Legality of Use of Force Judgments (para. 93). By no means can it
be regarded as a conclusive finding on the matter.
4.56. It is also clear that this view was not confirmed, explicitly or implicitly, in the
1996Judgment on provisional measures, as th e Applicant erroneously contends. As
ProfessorVarady has demonstrated, the 1996 J udgment relied on the FRY’s pronouncements of
24
CR 2006/36, p. 63, para. 60 et seq. (Stern).
2CR 2006/36, pp. 64-65, paras. 62-63 and 67 (Stern). - 28 -
continuity with the former Yugoslavia, that is , the declaration and the Note of 27 April 1992
(Application of the Convention on the Preven tion and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Preliminary Objections ,
Judgment, I.C.J. Reports 1996 (II), p. 610, para. 17). And this demonstrates that the Court, for the
purposes of its ruling on preliminary objections, considered that it was open to the FRY on the
assumption that the FRY was a Member of the United Nations and as such ipso facto party to the
Statute under Article 35, paragraph 1. Therefor e, the 1996 Judgment could not conceivably ratify
the 1993 provisional view that the FRY had access under the “treaties in force” clause in
Article35, paragraph 2, of the Statute. This is also confirmed by the fact that this point was not
even pursued in the proceedings after 1993 (see Legality of Use of Force, para. 94).
4.57. In any case, as I have demonstrated, the Court has not taken a definitive position on the
FRY’s access to the Court either in 1993 or in 1996 ( ibid., para. 74), so any view that may have
been taken in the 1996 Judgment on preliminary obj ections cannot possibly be regarded as final
and conclusive. In conclusion, interpretation of Article 35, paragraph 2, advanced by the Applicant
is not and cannot be res judicata.
4.58. Madam President, this part of the App licant’s pleadings demonstrates the absurdity of
what might be called its “res judicata fundamentalism”. The bottom line of the Applicant’s
argument is that an interpretation of Article 35, paragraph 2, contained in a provisional finding,
which was allegedly implicitly confirmed in a judgment that dealt with other matters, should
override explicit and conclusive in terpretation of that same provision contained in a judgment that
specifically dealt with access. It is submitted that this construction cannot possibly hold.
4.59. Finally, as regards the substance of th e interpretation of Article35, paragraph2,
advanced by the Applicant, I need not take much time. The “treaties in force” clause in Article 35,
paragraph2, exclusively concerns treaties that were in force at the date of entry into force of the
Statute (Legality of Use of Force , para. 113). This is the view taken by the Court itself, after an
extensive analysis of the said provision. Thus, the Court unequivocally concluded:
“even assuming that Serbia and Montenegro was a party to the Genocide Convention
at the relevant date, Article 35, paragraph 2, of the Statute does not provide it with a
basis to have access to the Court, under Ar ticle IX of that Convention, since the
Convention only entered into force on 12 January 1951, after the entry into force of
the Statute . . .” (ibid., para. 114). - 29 -
4.60. Of course, the FRY was not even a pa rty to the Genocide Convention at the time
proceedings in the present case were instituted, and thus its ArticleIX cannot, in any case,
constitute the basis of the Court’s jurisdiction in the present case.
IX. Conclusions
4.61. Madam President, in the end, I would like to quote from a letter signed in 1999 by the
then Agent of Bosnia and Herzegovina, who was also its country’s representative in the United
Nations –– a letter already quoted in part by my co lleagues, but so explicit and straightforward that
it in fact summarizes and supports most of our arguments on access, and you can find this letter in
your judges’ folders at tab 2, page 2:
“Since a new application for membersh ip in the United Nations, pursuant to
Article 4 of the Charter of the United Nations, has not been made by the Federal
Republic of Yugoslavia (Serbia and Montenegro) to date, and it has not been admitted
to the United Nations, the Federal Repub lic of Yugoslavia therefore cannot be
considered to be ipso facto a party to the Statute of the Court by virtue of Article 93,
paragraph 1, of the Charter of the United Nations. Neither has the Federal Republic of
Yugoslavia (Serbia and Montenegro) become a contracting party of the Statute of the
Court under Article 93, paragraph 2, of the Charter, which states that a non-member
State can only become a contracting party of the International Court of Justice’s
Statute under conditions set by the General Assembly on the recommendation of the
Security Council on a case-by-case basis. Furthermore, the Federal Republic of
Yugoslavia (Serbia and Montenegro) has not accepted the jurisdiction of the Court
under the conditions provided for in Secur ity Council resolution 9 (1946) and adopted
by the Council by virtue o26powers c onferred on it by article 35, paragraph 3 [sic!], of
the Statute of the Court.”
4.62. Madam President, distinguished Members of the Court, even if this unequivocal
statement of the then Agent of Bosnia and Herzegovina were to be put aside for a moment, I
believe that the arguments that we have put befo re you conclusively demonstrate that the FRY did
not have access to the Court in the present case.
4.63. The determination that the FRY was not a Member of the United Nations and did not
have access to the Court on the basis of Article 35, paragraph 1, before 2000 is the basis of the
Court’s Judgments in the Legality of Use of Force cases. This is an objective determination which
must equally and necessarily apply in the present case, as well, as it applies in all cases instituted
before 2000 in which the FRY was a party. C onsequently, the FRY was not a Member of the
2Letter dated 27 May 1999 from the Perman ent Representatives of Bosnia and Herzegovina, Croatia, Slovenia
and the former Yugoslav Republic ofMacedonia to the United Nations addressed to the Secretary-General, United
Nations doc. A/53/992 (7 June 1999). - 30 -
United Nations in 1993, and did not have acce ss to the Court on the basis of Article 35,
paragraph 1, of the Statute at the relevant time.
4.64. Furthermore, the FRY did not have acces s to the Court on the basis of Article 35,
paragraph 2, of the Statute, because it neither made a declaration required under Security Council
resolution 9, nor was bound by a treaty in force within the meaning of this provision ⎯ the
Genocide Convention is not such a treaty in for ce. In any case, the FRY became a party to the
Genocide Convention only in 2000 and with a reservation to its Article IX.
4.65. The Applicant’s reliance on the res judicata force of the 1996 Judgment on preliminary
objections, which was refuted by Professor Varady, in any case cannot apply to the issue of access.
Moreover, as the Court itself considered, its pron ouncements in the incidental proceedings during
the period between 1992 and 2000, including therefore in the 1996 Judgment on preliminary
objections, cannot be taken as defi nitive positions, nor can commit the Court, as regards the issue
of the FRY’s access to the Court in that period. The definitive position with regard to the FRY’s
access to the Court during that period was taken in the 2004 Legality of Use of Force Judgments
and now this objective finding should be applied in the present case.
4.66. Finally, Madam President, I would like to reiterate Serbia and Montenegro’s arguments
made in the first round with regard to the issue of access. We respectfully submit, as we did in the
first round, that the Court should decline to entertain the present case because the FRY did not have
access to the Court at the time the proceedings were instituted in 1993.
Madam President, distinguished Members of the Court, allow me in the end to thank you for
your kind attention. And perhaps, Madam Presiden t, we could either take a break, or you could
perhaps give the floor to Professor Zimmermann.
The PRESIDENT: Thank you very much, Mr.Djeri ć. I think we will make a start with
Professor Zimmermann. - 31 -
Mr. ZIMMERMANN: Thank you, Madam President, for giving me the floor.
5. RESPONDENT WAS NEVER BOUND NOR BECAME BOUND BY THE G ENOCIDE C ONVENTION
AND ITS A RTICLE IX
A. Introduction
5.1. Madam President, distinguished Members of the Court, may it please the Court. This
morning I will demonstrate that the Responde nt neither remained bound by the Genocide
Convention, nor that it ever became bound by Article IX of said Convention.
5.2. Before speaking about matters of jurisdic tion, let me first address one general question,
however. It is important to note that whatever finding this Court will make with regard to the
Respondent’s access to Court and the question of jurisdiction under ArticleIX of the Genocide
Convention, there can be no doubt whatsoever th at the substantive rules provided for in the
Genocide Convention also form part of customary law and even, as this Court has most recently,
and rightly so, pointed out, that the prohibition of genocide forms part of jus cogens (case
concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of the Congo v. Rwanda), Judgment of 3 February 2006, para. 64). Thus a judgment by
this Court finding that it cannot decide upon the me rits of this case would not alter the obligations
of both Parties with regard to the prohibitions of genocide a nd the legal consequences flowing
therefrom under general intern ational law. Accordingly ⎯ contrary to what counsel for the
Applicant seems to imply 27⎯ there would be no gap whatsoever as to the applicability of the
prohibition of genocide during the conflict that took place on the territory of the former
Yugoslavia.
5.3. Madam President, allow me to make anot her remark of a preliminary nature concerning
a fundamental aspect of my pleading: the questio n of continuity and succession. Let me start by
stating that I am grateful to Professor Stern who, in her pleading of 24 April, has clarified the most
fundamental difference between State continuity on the one hand and State succession on the
28
other . Our starting point is therefore the same and I do not have to come back to it. I am also
grateful to her for having confirmed that wh enever there is no legal continuity, that when one
27
CR 2006/36, p. 49, para. 17 (Stern).
28CR 2006/37, paras. 43-44 (Stern). - 32 -
29
State replaces another in the responsibility fo r the external representation of a territory , the issue
of State succession arises ⎯ that is the question whether certain rights or obligations are being
30
transmitted or not . Like my learned colleague, I believe th at this is a fundamental distinction to
be drawn and to be kept in mind.
5.4. With regard to the case at hand, this means that, provided the Respondent continued the
international legal personality of the former Yugoslavia, quid non, it would have, as being the same
State, automatically remained a member of all international organizations of which the former
Yugoslavia had been a member. Also, it would automatically have remained bound by all treaties
the former Yugoslavia had previously entered into including the Genocide Convention and its
Article IX.
5.5. If, however, the FRY did not continue the international legal personality of its
predecessor State, then the FRY, being a successor State, could have only become a Member of the
United Nations and a Contracting Party of the St atute of this Court according to the procedure
envisaged in Article 4 of the Charter.
5.6. Moreover, as a successor State it could only have become a Contracting Party of the
Genocide Convention by virtue of applicable rules of State succession or by way of accession.
5.7. A third alternative pleaded by the App licant was that the FRY should be, regardless of
its status as either as continuator or a su ccessor State, considered bound by the Genocide
Convention and its Article IX by virtue of a declaration made on 27 April 1992.
Let me now start by addressing the issue of continuity.
B. Serbia and Montenegro is a successor State of the former Yugoslavia and
therefore did not remain bound by the Genocide Convention
5.8. Madam President, “the Federal Republic of Yugoslavia (Serbia and Montenegro) . . . is
not the same legal entity under international law as... the Socialist Federative Republic of
31
Yugoslavia” . These are not my words, these are the words used by the Permanent Representative
29
See Article 2 (1) (b) of the 1978 Vienna Convention on Succession of States in Respect of Treaties.
30CR 2006/37, para. 44 (Stern).
31Joint letter dated 27 May 1999 from the Permanent Repr esentatives of Bosnia and Herzegovina, Croatia,
Slovenia and the former Yugoslav Republic of Macedonia to the United Nations addressed to the Secretary-General,
United Nations doc. A/53/1992, p. 2. - 33 -
of Bosnia and Herzegovina in a letter to the Secretary-General of the United Nations dated
27May1999 and there are indeed many more stat ements reiterating the very same point. My
colleague TiborVarady has demonstrated yesterda y that this was also the position taken from the
very beginning by the Security Council and the General Assembly. And this was also the position
that was confirmed by the admission of the FRY as a new Member to the United Nations in
November 2000. It follows that the FRY could not have remained bound by the Genocide
Convention. As a new State that only came into existence on 27April 1992, the FRY could only
become bound by the Genocide Convention and its ArticleIX , if ever, by virtue of rules of State
succession or by virtue of its accession.
5.9. ProfessorStern, in an attempt to avoi d this necessary conclusion, herself came up with
the idea of a legal metamorphosis. According to her argument, a State ⎯ the FRY ⎯ that at one
point was supposed to have continued the legal personality of another State ⎯ the former
Yugoslavia ⎯ could then be transformed into a successor State and vice versa. Furthermore,
ProfessorStern also argued that a State might, at the very same time be both identical in certain
regards and be a successor State in others. I belie ve you will agree that this new idea of either a
legal “metamorphosis” or a split legal régime is simply legally not tenable, since it blurs the
fundamental distinction Professor Stern herself has so aptly described and which is deeply rooted in
State practice.
5.10. Madam President, we have demonstrated during our first round of arguments that your
1996Judgment on jurisdiction was based and must have been based on the very notion of
32
continuity . Given the information now available to the Court and further given the position this
Court itself has taken in the 2004Judgments in the cases concerning Legality of Use of Force ,
where you found that Serbia and Montenegro was not the State that had been a founding Member
of the United Nations in 1945, we believe it logi cally follows that Serbia and Montenegro cannot
be the entity that had ratified the Genocide Convention (including its Article IX) in 1950.
5.11. Madam President, this brings me to my next point namely whether the Respondent ever
became bound by ArticleIX of the Genocide Conven tion as a successor State of the former
32
See CR 2006/13, paras. 3.7 et seq. (Varady). - 34 -
Yugoslavia. In that regard counsel for the App licant has come forward with various ideas why the
Court should find that Serbia and Montenegro should be considered bound by the Genocide
Convention and, in particular, its Article IX.
5.12. I will now consider them one by one, w ith one exception. That is the question of res
judicata ⎯ a matter which has already been addressed by my friend and colleague, Tibor Varady.
C. The FRY could not become a Contracting Party of the Genocide Convention
for lack of an invitation
5.13. Madam President, during the first round of pleadings, we have argued that the FRY
could not become a party to the Genocide Conventio n, as it never was invited to do so pursuant to
Article XI of the Convention . Seeking to counter this proposition, counsel for the Applicant have
argued that the Respondent did not need to receive an invitation in the first place since it already
34
was a contracting party of the Convention . That would again presuppose, however, that the FRY
could be considered the continui ng State of the former Yugoslavia ⎯ an argument I have just
addressed and that besides was also already refuted by Professor Varady.
5.14. I therefore only have to deal with the subsidiary argument advanced by counsel for the
other side. The argument is that the requirement of an invitation by the Secretary-General could be
set aside since the FRY is a su ccessor State whose predecessor Stat e, the former Yugoslavia, had
already been a party to the Convention before it ceased to exist as an international legal person.
5.15. In answering this subsidiary argument , let me start by referring you to your own
Judgment in this case of 1996 which, I believe, speaks for itself. The Court was then dealing with
the question whether Bosnia and Herzegovina could become a contracting party of the Genocide
Convention given its ArticleXI. Similarly to the FRY, Bosnia and Herzegovina was, as
Professor Stern herself put it, involved in a process of succession 3.
5.16. In paragraph19 of the 1996Judgment, this Court first noted that Bosnia and
Herzegovina had become a Member of the Un ited Nations on 22May 1992. It stressed the
competences of the Security Council and the Genera l Assembly with regard to membership issues
33
See ibid., paras. 3.31 et seq. (Varady).
34
See e.g. CR 2006/36, pp. 51-52, paras. 25-27.
3CR 2006/36, p. 51, para. 24 (Stern). - 35 -
and then stated: “ArticleXI of the Genocide Convention opens it to ‘any Member of the United
Nations’” (I.C.J. Reports 1996 (II), p. 611, para. 19).
5.17. That alone would have been sufficient to clarify the Court’s position that, at least as a
matter of principle and subject to a special invitation contemplated in General Assembly
resolution368(IV), ArticleXI of the Convention limits the possibility to become a contracting
party of the Convention, be it by way of accession, be it by way of succession, to Member States of
the United Nations. But the Court was even more specific and continued:
“from the time of its admission to the Organization , Bosnia and Herzegovina could
thus become a party to the Convention .. . It is clear from the foregoing that Bosnia
and Herzegovina could become a party to the Convention through the mechanism of
State succession.” (Ibid.; emphasis added.)
5.18. Counsel for the Applicant attempted to minimize this clear holding by arguing that it
should be read in conjunction with the third pre liminary objection then made by the FRY. This
approach first raises an interesting point of principle.
5.19. On this side of the Bar, we have c onsistently argued on other occasions that the very
holding of this Court in its 1996Judgment shoul d indeed be read in conjunction with the
preliminary objections then made by the FRY, none of which related to the status of the FRY
itself6. For most purposes counsel for the Applicant, however, tried to refute any such
interrelationship 3.
5.20. But now all of a sudden, for the purpo ses of ArticleXI of the Genocide Convention,
Bosnia and Herzegovina requests the Court to ta ke account of the context of the preliminary
objections then made by the FRY. I believe the Court will agree that Applicant cannot have it both
ways.
5.21. If we now followed the Bosnian approach here and took into account the preliminary
objections of the FRY, I submit that this w ould also mean that the very scope of the res judicata of
the 1996Judgment should then be also defined w ith regard to the seven preliminary objections
raised by the FRY, none of which dealt however w ith either the status of the FRY within the
United Nations, or with its status vis-à-vis the Organization.
36
See e.g. CR 2006/13, para. 4.22 (Zimmermann).
3See e.g. CR 2006/36, pp. 10 et seq., paras. 23 et seq.; pp. 15 et seq., paras. 38 et seq. (Pellet). - 36 -
5.22. But if, indeed, we read your 1996 Judgm ent and its paragraph 19 in the context of the
third preliminary objection, the Applicant’s atte mpt to counter the argument based on ArticleXI
must still fail. This is so because the passage from the 1996 Judgment explicitly says much more
than the Applicant infers. Let me refer you to wh at the third preliminary objection then made by
the FRY said. The second part of the third prelim inary objection referred to the fact that Bosnia
and Herzegovina had not become a State party to the Genocide Convention in accordance with the
provisions of said Conventi on, and namely its Article XI . And it was this objection that the Court
addressed in paragraph 19 of the 1996 Judgment.
5.23. If the Court had wanted to simply confirm the statehood of Bosnia and Herzegovina by
making reference to its membership in the Unite d Nations as counsel for the Applicant seemed to
imply 38, one would have expected the Court to do just that. Instead, responding to this objection,
the Court most logically linked the status of a c ontracting party to the Genocide Convention, with
the membership in the Organization.
5.24. It should be also noted that this in terrelationship between membership in the United
Nations on the one hand and the status as a Contr acting Party of the Genocide Convention on the
other makes particular sense since ArticleIX of the Genocide Convention links the Contracting
Parties of said Convention with the Court, the main judicial organ of the United Nations. It is
therefore quite normal that the Contracting Parti es of the Genocide Convention should at the same
time be Member States of this very same organiza tion or that the organization should specifically
invite them to become a contracting party. One r eason behind this lies in th e fact that in this way
the States parties of the Genocide Convention will be bound to comply with the Court’s decision,
in accordance with Article 94 of the Charter.
5.25. Madam President, at the very end of her presentation dealing with the issue of
Article IX of the Genocide Convention, Professor Stern argued that certain requests by the United
Nations organs to the parties then involved in the conflict should be ⎯ and could be, she said ⎯
interpreted as invitations to participate in the Convention 39.
38
CR 2006/36, p. 54, para. 31 (Stern).
3CR 2006/36, pp. 54-55, para. 32 (Stern). - 37 -
5.26. However, under Article XI of the Convention it is for the General Assembly formally
to invite third States not Members of the United Nations to become a Contracting Party of the
Genocide Convention. In its relevant part, the provision, Article XI, reads: “[T]he present
Convention may be acceded to on behalf of a ny Member of the United Nations and of any
non-member State which has received an invitation as aforesaid.” ⎯ that is “an invitation... by
the General Assembly”. In General Assembly resolution 368 (IV), the General Assembly has
specifically requested the Secretary-General to extend such invitations, provided certain specific
conditions have been fulfilled. All this shows that the invitation requirement of Article XI is to be
taken seriously. Given these circumstances one simply cannot interpret general calls, by United
Nations organs, to abide by the Genocide Convention as an invitation to accede.
5.27. Besides, and even more importantly, th ere is simply nothing in these calls that would
imply that the United Nations organs had in mind to bring about the status of a Contracting Party of
the States concerned. Instead, those calls we re simply aimed at the substantive guarantees
contained in the Genocide Convention, calls not to commit genocide, but not invitations to acquire
the status as a Contracting Party of the Convention.
5.28v.ing ⎯ I hope, at least ⎯ convinced you that the invitation requirement of
Article XI of the Genocide Convention can neither be dispensed with, nor that it has been fulfilled,
let me now briefly discuss two issues which counsel has also attempted to rely on, namely the issue
of the Dayton Peace Agreement and the question of certain statements made by counsel for Serbia
and Montenegro in earlier phases of the case –– unless you would now advise me to take a break.
The PRESIDENT: Yes. I think this would be a good moment for us all to have a break.
The Court now rises.
The Court adjourned from 11.25 to 11.45 a.m.
The PRESIDENT: Please be seated. Professor Zimmermann, do please resume, but maybe
a little more slowly to help the interpreters.
Mr. ZIMMERMANN: Yes, thank you, Madam President, I was already told so by the
interpreters: I will certainly try. Madam Presid ent, I did demonstrate that the FRY is a successor - 38 -
State of the former Yugoslavia. I also demonstr ated that, even as a successo r State, it needed an
invitation from the United Nations in order to become a Contracting Party of the Genocide
Convention under Article XI of the Convention. A nd finally, I demonstrated that it never received
such an invitation. I will now move on to Article IX of the Genocide Convention and the issue of
the Dayton Peace Agreement.
D. Article IX of the Genocide Convention and the Dayton Peace Agreement
5.29. Madam President, we submit that the Dayton Peace Agreement and more specifically
the General Framework Agreement for Peace in Bosnia and Herzegovina can under no
circumstances provide the Court with jurisdiction in this case.
5.30. Let me start with an obvious remark . Counsel for the Applicant referred to
ChapterOne of Annex6 of the Agreement which in turn contains a reference to the Genocide
Convention in order to argue that the FRY is boun d by ArticleIX of the Genocide Convention.
But who are the parties to this Annex 6? The pa rties are the Republic of Bosnia and Herzegovina,
the Federation of Bosnia and He rzegovina and Republika Srpska ⎯ but not the FRY. The
Applicant attempts to counter this obvious problem by referring to ArticleVII of the General
Framework Agreement. But let us start by havi ng a careful look at ArticleVII of the General
Framework Agreement for Peace in Bosnia and Herzegovina. Article VII provides that “the Parties
agree to and shall comply fully with the provisi ons concerning human rights in Chapter One of the
Agreement at Annex 6”.
5.31. Annex6 in turn contains a long list of human rights treaties including the Genocide
Convention, but also including inter alia the European Convention for the Protection of Human
Rights and Fundamental Freedoms and its Protocols. What counsel for the Applicant is arguing
would mean that the Dayton Framework Agreement would have also provided inter alia for the
jurisdiction of the European Court of Human Rights in cases brought against the Respondent either
by way of individual complaints or by way of inter-S tate complaints. I believe this is sufficient to
counter the interpretation of ArticleVII of the General Framework Agreement proposed by
Professor Stern. - 39 -
5.32. Rather, Article VII of the Dayton P eace Agreement must be understood as obliging the
parties to abide by the substantive standards contained in those various, mentioned agreements.
How could it be otherwise, anyhow, since among th e parties to Annex 6 are also non-State entities
such as the Federation of Bosnia and Her zegovina and Republika Srpska which under no
circumstances could become a party to, for example, the Genocide Convention. It is only if read
this way that the provision makes sense at all.
5.33. Besides, the Dayton Peace Agreement only entered into force on 14December1995.
Accordingly, if this Court were to find that the FRY became bound by Article IX of the Genocide
Convention by virtue of having si gned the Dayton Peace Agreement, quid non, it could have only
become bound as of that date. This is due to the fundamental principle of non-retroactivity of
treaties codified in Article28 of the Vienna Convention on the Law of Treaties. The
non-retroactivity of the Genocide Convention is al so upheld by several eminent scholars including
40
Nehemiah Robinson in his commentary on the Genocide Convention and William Schabas in his
41
book on Genocide in International Law .
5.34. Since the Court has, however, frequently stated that the instrument providing for its
jurisdiction must have been in force at the time the Application was made (see most recently Armed
Activities on the Territory of the Congo (New Application : 2002) (Democratic Republic of the
Congo v. Rwanda) , Judgment of 3 February 2006, para . 54), a view which counsel for the
Applicant agreed with 4, it follows that even if one were to assume arguendo that Article IX of the
Genocide Convention became applicable as between the Parties by virtue of the Dayton General
Framework Agreement as of 14December 1995, it still could have not provided the Court with
jurisdiction in this case.
5.35. Let me now address certain remarks as to statements made by counsel of the
Respondent during earlier phases of this case.
40Nehemiah Robinson, The Genocide Convention, Institute of Jewish Affairs, World Jewish Congress, 1949 etc.;
reprint New York, 1960, p. 114: “Article IX could not be i nvoked, except for acts of the St ate following the ratification
of the Convention”.
41William A. Schabas, Genocide in International Law , Cambridge 2000, p. 541: “the operative clauses of the
Convention, including article IX, can only apply to genocide committed subsequent to its entry into force with respect to
a given State party”; emphasis added.
42CR 2006/36, para. 2 (Stern). - 40 -
E. Respondent is not bound by virtue of statements made by its counsel
5.36. Madam President, Members of the Court, at the end of her pleading of 21April,
counsel for the Applicant, Professor Stern, has also argued that the Respondent had recognized the
Court’s jurisdiction under ArticleIX of the Genocide Convention in the course of the
43
proceedings . In this respect she referred to certa in statements made by counsel for the
Respondent. Compared to other aspects of her pleading, she did not elaborate on this at any length.
I can assure you, Madam President, that I will equally treat the matter only briefly.
5.37. I put to you that the statements cited by ProfessorStern, when read in their proper
context, simply are “not capable of carrying th e load the Applicant seeks to put upon it”, to
paraphrase words that this Court has used on a different occasion (cf. South-West Africa (Ethiopia
v. South Africa; Liberia v. South Africa), I.C.J. Reports 1966, p. 42, para. 72).
5.38. If we first look at Professor Rosenne’s st atement, we see that it was made in 1993, at
an early stage of these proceedings. If we look closer at the context of that statement, we find that
Professor Rosenne was then criticizing attempts by the App licant to establish bases of jurisdiction
other than ArticleIX of the Genocide Convention. As the history of this case suggests, he had
every reason and right to do so. A closer reading of his pleading reveals that ProfessorRosenne
then went on to clarify that even under Article IX of the Genocide Convention, the Court should
not grant the interim relief then sought by the App licant. What is more, we need to bear in mind
that the statement was made in the course of provisional measures hearings. I think it is well
known and not disputed that during the subsequent written proceedings, the Respondent advanced a
series of arguments why Article IX did not provide a basis for the Court’s jurisdiction. Indeed, the
Court itself later acknowledged that the Responde nt had continuously contested the Court’s
jurisdiction.
5.39. This leaves the statement by ProfessorSuy during the 1996 hearings on preliminary
objections. But again, this statement ought not to be taken out of context. As that context shows, it
can simply not be interpreted as recognition of this Court’s competence under ArticleIX of the
Genocide Convention. As his sequence of ar guments suggests, ProfessorSuy was assessing the
date at which the Applicant had become bound by the Genocide Convention. His pleading was not
43
CR 2006/36, pp.60-61, paras. 49-52. - 41 -
aimed at assessing whether or when the Respondent became bound by it ⎯ an issue that ⎯ as both
Parties agree ⎯ then simply was not regarded as cruc ial. In so far as ProfessorSuy briefly
commented on the matter, he did so on the basis of the information then available to the Parties and
to the Court. This information however ⎯ as my friend and colleague Tibor Varady has shown ⎯
today has to be evaluated in the light of the developments since 1 November 2000.
5.40. Accordingly neither of the two statemen ts can have the legal effect counsel for the
Applicant has attempted to argue they should ha ve. To the contrary, it is well known that the
Respondent continuously contested the Court’s jurisd iction, including that under Article IX of the
Genocide Convention.
5.41. Let me now briefly come back to the question whether the Respondent could be
considered bound by the Genocide Convention due to an alleged continuity.
F. The FRY is not bound by the Genocide Convention due to an alleged continuity
with the former Yugoslavia
5.42. Madam President, I will be brief. On ce again ProfessorStern tried artificially to
distinguish continuity for the purpose of membersh ip in the United Nations from continuity with
regard to treaties ⎯ as if that could be done. Yet if ⎯ and let me stress the “if” ⎯ if the FRY had
been identical with the former Yugoslavia and if it had therefore continue d its international legal
personality, it is obvious that it would then per se have continued both its membership in
international organizations and its treaty status ⎯ but the same is also true vice versa.
5.43. If a State is not identical with its predecessor State and if it accordingly does not
continue its international legal personality, it will neither retain its membership in international
organizations nor its status as a contracting party. Instead, it may only acquire such status by either
admission respectively with regard to treaties, accession or succession. And indeed, how can a
State be both at the very same time ⎯ a continuing State and a successor State.
5.44. It is for that reason, as was demonstrated once again by TiborVarady, that the
1996 Judgment was and must have been based solely on the assumption that the FRY continued the
international legal personality of the former Yugoslavia in toto. - 42 -
5.45. Professor Stern then relied on the opinion of the Legal Counsel of 16 September 1993,
44
which she said supported the continuity thesis . However ⎯ just as in his previous opinion ⎯ the
Legal Counsel did not, in the part quoted by counsel for the other side, unlike in other parts of his
opinion, refer to the FRY but instead to “Yugoslavia” . Thus while the letter may have raised some
doubts about the treaty status of the former Yugoslavia, it certainly cannot be understood as a
statement as to the treaty status of the FRY.
5F.i6.lly Professor Stern herself mentioned the incident involving the “Summary of
Practice of the Secretary-General as Depositary of Multilateral Treaties” which had erroneously
tried to portray the FRY as a conti nuator State of the former Yugoslavia 45. However, what she did
not clearly say is that, in addition to some othe r States, it was Bosnia and Herzegovina itself that
protested against any such legal qualification, wh ich finally led to the famous “Erratum” being
46
issued by the Secretary-General . As a consequence, the incident itself does not support the
argument counsel for the Applicant was trying to make ⎯ I believe rather the contrary is true.
5.47. Let me now move on to issues of treaty succession proper.
G. Serbia and Montenegro never succeeded to the Genocide Convention
and in particular its Article IX
General remarks
5.48. Let me start in that regard with one re mark of a more general nature, namely that once
again counsel for the Applicant have in thei r rebuttal on various occasions disregarded the
behaviour of Bosnia and Herzegovina itself. I have already touched upon this general pattern
yesterday when dealing with issues of good faith.
5.49. But let me now be more specific with re gard to issues of treaty succession. In that
regard it is telling that counsel for the other si de neither mentioned nor addressed the fact that
Bosnia and Herzegovina itself had requested th at the FRY in 1998 should notify its succession to
44
CR 2006/36, p. 56, para. 36 (Stern).
45
CR 2006/36, p. 52, para. 26 (Stern).
4See M. Wood, “Participation of Form er Yugoslav States in the United Na tions and in Multilateral Treaties”,
Max Planck Yearbook of United Nations Law 1997, pp. 231 et seq. (256). - 43 -
the treaties of the former Yugoslavia . Of course, such notification would have been redundant if
the FRY:
⎯ had either been a continuing State of the former Yugoslavia;
⎯ if it already had become bound by virtue of the declaration of 27 April 1992; or
⎯ if the principle of an alleged automatic succession applied.
5.50. This immediately brings me to my next point, namely the issue of automatic
succession.
Serbia and Montenegro never automatically su cceeded to the Genocide Convention (and in
particular its Article IX)
5.51. Madam President, we submit that Serbia and Montenegro never automatically
succeeded to ArticleIX of the Genocide Conventio n. Let me start by mentioning a number of
issues raised in our first round pleading to whic h counsel for the Applicant have not replied ⎯ and
which therefore must be taken to have been conceded.
5.52. First, while mentioning the practice of Bosnia and Herzegovina vis-à-vis the Human
Rights Committee as such, Professor Stern failed to explain why Bosnia and Herzegovina did
acquiesce in the accession of several successor States of the former Soviet Union to the Genocide
Convention 48. This practice of course clearly contradi cts the very idea of automatic succession,
which Bosnia claimed was generally accepted.
5.53. Secondly, while I truly appreciate the role of various treaty bodies with regard to the
continued development of international law, a nd in particular the role of the Human Rights
Committee, I hope it is not in dispute that it cannot substitute State practice. This is even more so
true where, as in the case at hand, State practice, at least to a large extent, either contradicts the
assumption of automatic succession or is, to say the least, not virtually uniform within the meaning
of the Court’s holding in the North Sea Continental Shelf case.
5.54. Thirdly, let me reiterate the crucial distinctio n to be drawn between the substantive
obligations arising under the Genocide Conventio n on the one hand and the jurisdictional clause
47
Cf. CR 2006/13, para. 4.41 (Zimmermann).
4Ibid., para. 4.86 (Zimmermann). - 44 -
49
contained in its ArticleIX on the other . Bosnia and Herzegovina failed to address why the
jurisdictional clause contained in ArticleIX s hould be subject to automatic succession. That
jurisdictional clause:
⎯ contains no substantive obligations;
⎯ it certainly does not form part of jus cogens; and
⎯ it does not create individual rights.
If the very notion of automatic succession itself is based on the idea of acquired individual rights --
as Bosnia seemed to imply ––, then Article IX is certainly not covered by it.
5.55. Accordingly, it is submitted that th e relevant practice ar ising under human rights
treaties is the practice relating to provisions providing for the competence of treaty bodies to
receive either interstate or individual complaints . Here the practice of Bosnia and Herzegovina
itself, this time with regard to the United Nations Convention against Torture, is, once again, more
than telling.
5.56. The former Yugoslavia had ratified the said Convention on 10September1991 and
had, under Articles21 and 22 of the Convention, recognized the competence of the Committee
against Torture to receive and consider communications by other State parties respectively by
individuals 50. In 1993, after its independence, Bosnia and Herzegovina submitted a declaration of
succession with regard to the Convention as such, in dicating that the succession should take effect
as of 6March1992. It was however only on 4 June 2003 that Bosnia and Herzegovina filed a
further separate declaration indicating that it would now also accept without reservations the
competence of the Committee against Torture to consider interstate a nd individual complaints
51
under Articles 21 and 22 of the Convention, respectively . This shows two things:
⎯ first, when it comes to its own treaty practice with respect to the Torture Convention, Bosnia
and Herzegovina itself clearly distinguished betw een substantive and jurisdictional obligations
arising under human rights treaties; and
49
See CR 2006/13, paras. 4.94 et seq. (Zimmermann).
50See information available at http: //untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterIV/
treaty14.asp#N3.
51See Report of the Committee against Torture, Thirty-f irst Session and Thirty-sec ond Session, United Nations
doc. A/59/44, Anns. I and III. - 45 -
⎯ secondly, it accepted that procedural and jurisdictiona l obligations are not subject to automatic
succession.
The same considerations, I submit, should apply to Article IX of the Genocide Convention.
5.57. Let me, after these preliminary cons iderations, go through the various arguments
brought forward by counsel for Bosnia and Herze govina with regard to the issue of automatic
succession.
5.58. Professor Stern was right that I did not mention Article34 of the 1978Vienna
Convention on the Succession of States with Regard to Treaties. In this respect, I believe it is
sufficient to note that, given the number of 19 –– 19 –– Contracting Parties of the said Convention
even more than 30 years after its adoption, it is probably safe to assume that the general principle
contained in Article34, to say the least, has not been generally accepted by the community of
States.
5.59. Besides, as a matter of treaty law, Artic le 34 of the 1978 Vienna Convention could in
any event not govern our case since it does not apply retroactively as between Bosnia and
Herzegovina on the one side and Se rbia and Montenegro on the other given that none of them has
made a declaration under Article 7 of the Convention.
5.60. Professor Stern must have also misunderstood my statements when mentioning the two
occasions where I made reference to the notion of newly independent States. To state the obvious,
the FRY is certainly not such a newly independent State. To that extent I can agree with my
52
learned colleague. Yet with regard to the first statement she refers to it is simply sufficient kindly
to ask you to also read the very next paragraph of my first round pleading. There I quote the
Secretary-General stating that any ⎯ any–– successor State, in order to become bound, must
specify in its notification of succession tho se treaties it wants to succeed to. In the
53
Secretary-General’s view a general across-the-board notification cannot bring about succession .
5.61. With regard to the next reference to newly independent States Professor Stern was
54 55
referring to , it would have been sufficient to just re ad two further paragraphs of my pleading .
52
CR 2006/36, para. 39 referring to CR 2006/13, para. 4.51 (Zimmermann).
53
See CR 2006/13, para. 4.52 (Zimmermann).
54Ibid., referring to CR 2006/13, para. 4.51 (Zimmermann). - 46 -
There, I referred to the ILC’s work in the field. I then went on to note that in the relevant passage,
the ILC had explained why law-making treaties, which in the understanding of the ILC included
human rights treaties, did not and should not constitute a separate category of treaties and therefore
should not be subject to the principle of automatic succession, namely since ⎯ and I quote once
again the ILC –– “such treaties may contain purely contractual provisions such as, for example, a
provision for the compulsory adjudication of disputes” 5.
5.62. I believe it is obvious that this consid eration equally applies to all categories of
successor States, be they newly independent States or not.
5.63. Let me end this part of my presentation by stating that this Court has so far never
accepted the customary nature of the principl e contained in Article34 of the 1978 Vienna
Convention (see notably Gabčíkovo-Nagymaros (Hungary/Slovakia) , I.C.J. Reports 1997 , p.7,
para.123). Furthermore, it has neither ever acce pted that human rights treaties are subject to
automatic succession (I.C.J. Reports 1996, p. 595, para. 23). However, very recently, the Court did
take an implicit position in the case between the Democratic Republic of the Congo and Rwanda,
and I believe it is safe to say that you decided the question in the negative specifically with regard
to Article IX of the Genocide Convention.
5.64. Madam President, when Belgium ratified the Genocide Convention in 1951 it did not
enter a reservation as to its ArticleIX. Later on Belgium, by declara tion dated 13March1952,
extended the territorial application of the Genocid e Convention to the then Belgian Congo and the
57
trust territory of Rwanda-Urundi it then administered .
5.65. The Democratic Republic of the Congo, upon its independence, submitted a declaration
of succession as to the Genocide Convention and accordingly became bound by it as of
55
CR 2006/13, para. 4.72 (Zimmermann).
56
See ibid.
57See Note on territorial Application, to be found at: h ttp://untreaty.un.org/ENGLISH/bible/englishinternetbible/
partI/chapterIV/treaty1.asp. - 47 -
31 May 1962 . Rwanda instead simply acceded to the Convention in 1975 and, at the same time,
59
entered a reservation as to its Article IX .
5.66. What is important for our purposes is th at this Court has most recently accepted this
accession by Rwanda ( Armed Activities on the Territory of the Congo (New Application : 2002)
(Democratic Republic of the Congo v. Rwanda), Judgment of 3 February 2006, para. 38) and at the
same time has also upheld its Artic leIX reservation. In contrast to that, the alleged rule of
automatic succession would have meant that Rw anda had automatically become bound by the
Genocide Convention including its Article IX by virtue of the Belgian ratification, and its extension
to Rwanda-Urundi. However, this Court dealt w ith Rwanda’s accession, including its reservation,
rather than considering the question of automa tic succession. This, to me, seems to be highly
relevant for our case, and for the question of automatic succession more generally.
5.67. This brings me to the end of my argument concerning the issue of automatic succession
and I will now turn to the legal relevance of the declaration adopted on 27 April 1992.
H. The Respondent did not become bound by the Genocide Convention and its Article IX
by virtue of the declaration adopted on 27 April 1992
5.68. Members of the Court, there are two i ndependent reasons why the declaration adopted
on 27 April 1992 did not and could not bind the Respondent vis-à-vis Article IX of the Genocide
Convention, namely
⎯ because it did not fulfil the requirements for such legally binding declarations as developed in
the Court’s jurisprudence; and
⎯ because applicable rules of State succession are lex specialis.
The declaration and the Note of 27 April 1992 did not fulfil the requirements for a legally
binding unilateral declaration
5.69. The requirements for a unilateral declaration to be binding under international law were
developed by this Court in the Nuclear Tests cases and recently further specified in the case
between the Democratic Republic of the Congo on the one hand and Rwanda on the other.
5Cf. the depositary’s information available at: http:/untreaty.un.org/ENGLISH/bible/englishinternetbible/
partI/chapterIV/treaty1.asp.
5Ibid., the reservation reads: “The Rwandese Republic donot consider itself as bound by article IX of the
Convention.” - 48 -
5.70. In the recent case between the DRC and Rwanda the Court explored whether a Minister
of Justice may, by way of a unilateral declaration, bind his or her State. The Court accepted such a
proposition provided the persons concerned are “exer cising powers in their field of competence in
the area of foreign relations” (ibid., para. 47).
5.71. In other words, it was necessary that those making the statement must have been
empowered to exercise competences in the area of foreign relations, be it only for certain matters
falling within their purview (see mutatis mutandis the Court’s Judgment in Armed Activities on the
Territory of the Congo (New Application : 2002) (Democratic Republic of the Congo v. Rwanda),
Judgment of 3 February 2006, para. 48). In the case at hand the question therefore arises whether it
fell within the field of competence of those maki ng the declaration of 27April1992 to decide
whether or not the FRY did or did not continue to be bound by treaties its predecessor State had
ratified.
5.72. Let me reiterate that the declaration of 27 April 1992 was adopted, as this Court itself
has noted, by “the participants of the joint sessi on of the SFRY Assembly, the National Assembly
of the Republic of Serbia and the Assembly of the Republic of Montenegro” (Legality of the Use of
Force (Serbia and Montenegro v. Belgium), Judgment of 15 December 2004, para. 56). This was
accordingly not an organ of the FRY, but an ad hoc body ⎯ an ad hoc body which consisted of
parliamentarians of the predecessor State of the Respondent and individual members of the
parliaments of two constituent republics of the former Yugoslavia.
5.73. Accordingly this was certainly not a body ⎯ to quote again what you said in your
recent Judgment in the case between the DRC and Rwanda ⎯ exercising powers in their field of
competence in the area of foreign relations of the FRY. Besides, as the declaration says, it was not
those organs as such that acted but rather “the participants” of this meeting in their individual
capacity.
5.74. Furthermore, in any event, a parliamentary assembly is certainly not in a position,
under international law, to represent a State in its foreign relations. Accordingly for that reason
alone, the declaration dated 27April 1992 cannot have created a legal obligation incumbent upon
the Respondent. - 49 -
5.75. In your Judgment of 3 February 2006 in the case between the DRC and Rwanda you
also further determined that the non-binding char acter under international law of a given unilateral
statement may be deduced from the fact that it was made “in the context of a presentation of
general policy” ( Armed Activities on the Territory of the Congo (New Application : 2002)
(Democratic Republic of the Congo v. Rwanda), Judgment of 3 February 2006, para. 53). Let me
therefore now once again quote from the declaration of 27 April 1992. In it “the representatives of
the people of the Republic of Serbia and the Republic of Montenegro . . . wish[ed] to state . . . their
views on the basic immediate and lasting objectives of the policy of their common state”.
5.76. I believe that the very fact that these were simple views uttered as to certain policy
objectives to be achieved neatly fits the descrip tion of a statement made, as you said, “in the
context of a presentation of general policy” ( ibid.). Besides, these policy objectives were based on
the idea of continuity ⎯ an idea that was rejected by both Bosnia and Herzegovina itself and the
international community at large.
5.77. In the Nuclear Tests cases you furthermore considered that the binding character of a
unilateral declaration, like the principle of pacta sunt servanda, is based on the very notion of good
faith and trust (see e.g. I.C.J. Reports 1974 , p.268, para. 46). Yet, as I have demonstrated
yesterday, Bosnia and Herzegovina has from the very beginning not relied in any form on this
declaration and on the concept of continuity contained therein. Instead and rather to the contrary it
has consistently argued that the FRY can only b ecome bound by treaties of the former Yugoslavia,
if it was willing to make specific declaration of succession. In this respect, the 1998 letter, which I
mentioned during my first pleading 6, is just one pertinent example at hand.
5.78. I therefore believe that this declaration of 27 April 1992 cannot be considered a legally
binding declaration under current international law.
Applicable rules of State succession are lex specialis
5.79. There is however another additional reason why this declaration could not have made
the FRY a contracting party of the Genocide Conve ntion and its ArticleIX. As was admitted by
counsel for the Applicant herself, whether a gi ven successor State is bound by treaties of its
60
See CR 2006/13, para. 4.19 (Zimmermann). - 50 -
predecessor State ⎯ or not ⎯ is governed by the applicable rules of State succession: “Lorsque se
produit un processus successoral, ce sont les règles spécifiques à la succession d’Etats qui
s’appliquent.” 61
5.80. Madam President, I agree with Professor Stern’s statement. But applying the specific
rules of State succession as lex specialis to the general rules governing unilateral declarations
62
means that, as I have previously demonstrated , in order for a successor State to become bound by
treaties of its predecessor State it must indeed submit specific declarations of succession containing
a list of those treaties it wishes to succeed. Genera l notifications of succession or even so-called
devolution agreements are not per se, as such, sufficient to make the successor State a contracting
party. In the declaration of 27 April 1992, not a single treaty is mentioned.
Thus, even if the Court were to find the declaration to be binding as a matter of principle, the FRY
could still not be considered a party of the Ge nocide Convention and in particular bound by its
Article IX.
5.81. Finally, if we follow up on the Applican t’s argument and consider the declaration as a
binding unilateral declaration providing for the con tinuity of the FRY with the former Yugoslavia
with regard to both membership in the United Na tions and status as a Contracting Party of the
Genocide Convention, such a declaration would not only provide for the jurisdiction of the Court,
but would also grant the FRY access to the Court. In other words this would mean that a State like
the FRY which otherwise would not have access to the Court, could by its own behaviour provide
for such access and could therefore circumvent bot h, the requirements of Article 35 of the Statute
and membership-related decisions of the General As sembly and the Security Council. Yet, as you
have stated, the issue of access is an objective qu estion which is not subject to the wishes of the
parties (case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium), Judgment
of 15December2004, para. 46), let alone one singl e State. These considerations provide further
reasons why the Applicant’s argument based on the declaration of 27 April 1992 must fail.
61
CR 2006/36, p. 53, para. 30 (Stern).
6CR 2006/13, paras. 4.50-4.52 (Zimmermann). - 51 -
I. Summary of argument
5.82. Madam President, Members of the Court, th is brings me to the end of my presentation.
Before concluding let me summarize my argument:
5.83. We submit to this Court that the FR Y did not continue the international legal
personality of the former Yugoslavia. Instead it is a successor State of the former Yugoslavia and,
as such, only came into existence as of 27 April 1992.
5.84. Since the former Yugoslavia ceased to ex ist and since the FRY did not continue its
international legal personality, it continued neither its membership in international organizations
nor its status as a contracting party with regard to treaties to which the former Yugoslavia had been
a party.
5.85. Besides, under ArticleXI of the Ge nocide Convention, the FRY was not qualified to
become a Contracting Party of the Genocide Convention, since it was not a Member of the United
Nations and since it never received an invita tion emanating from the competent United Nations
organs.
5.86. The Dayton Peace Agreement did not and could not provide the Court with jurisdiction
on the basis of Article IX of the Genocide Convention since the FRY is not a party to Annex 6 of
the General Framework Agreement, and since, in any event, the said Annex only referred to the
substantive obligations contained in the instrument s mentioned in the Annex. Besides, and in any
event, the Dayton Peace Agreement, which ente red into force only in 1995, could not have ex post
facto provided the Court with jurisdiction.
5.87. Statements made by counsel in earlier phases of this case may not be perceived as an
implicit acceptance of the Court’s jurisdicti on given that the Respondent continuously and
unambiguously challenged jurisdic tion throughout these proceedings ⎯ a fact recognized by this
Court.
5.88. Moreover, the Respondent never automa tically succeeded to the Genocide Convention
and, in particular, not to the compromissory clause contained in its Article IX.
5.89. The Respondent did neither become bound by the Genocide Convention and its
Article IX by virtue of the declaration adopted on 27 April 1992 since the said declaration did not
fulfil the criteria for a binding unilateral declaration as developed in the Court’s jurisprudence. - 52 -
Besides, a more specific rule of State succession, constituting lex specialis, would also hinder the
declaration from having such alleged effect.
5.90. Accordingly the FRY only became bound by the Genocide Convention when it
acceded to it in 2001, at which time it however ente red a valid reservation as to ArticleIX of the
Convention which ever since has been maintained.
5.91. This last remark also gives me the opportunity to now address the question of
JudgeTomka to Serbia and Montenegro. Judge Tomka had asked whether there are treaties to
which the former Yugoslavia had been a party and to which the FRY later acceded. In response, I
can confirm that the Genocide Convention is not the only treaty to which the former Yugoslavia
had been a party and to which the FRY later acceded. For example, on 28 February 2001, the FRY
deposited an instrument of accession to 11 out of 16 treaties concluded within the framework of the
Council of Europe to which the former Yugoslavia had been a party. If I may turn your attention to
the first additional tab submitted to your judges’ folder today ⎯ and I hope you have it ⎯ you will
see the list of treaties concluded within the Council of Europe to which the former Yugoslavia was
a party. You will also find a procès-verbal, i ssued by the Council of Europe, concerning the
deposit of the FRY’s instruments of accession to some of those treaties. The treaties to which the
FRY acceded inter alia include
⎯ the European Cultural Convention, to which th e former Yugoslavia had been a party since
7 October 1987, and
⎯ the European Convention on the Supervision of Conditionally Sentenced or Conditionally
Released Offenders, to which the former Yugoslavia had been a party since 10 July 1991.
Another set of treaties binding upon the former Yugoslavia to which the FRY acceded are seven
customs conventions of the World Customs Organization, such as
⎯ the Customs Convention on the Temporary Importation of Packings, and
⎯ the 1974 Customs Convention on the Simplif ication and Harmonization of Customs
Procedures.
As far as the latter 1974 Convention is concer ned, the former Yugoslavia had been a party
without reservation, while the FRY, however, acceded to it with a reservation. You may find the - 53 -
relevant instrument of accession, containing th e said reservation, among the documents we have
provided to you today.
I would also like to mention the Convention on the Settlement of Investment Disputes
between States and Nationals of Other States, th e ICSID Convention. The former Yugoslavia had
been a party of the said Convention since 1967. Serb ia and Montenegro is not yet a party to it.
However, it is in the process of acceding to itIt has already signed the ICSID Convention on
31July 2002 and will become a party upon deposit of the instrument of ratification by way of
accession, after the necessary domestic procedures have been completed.
I hope that this answers the question of the honourable Judge Tomka. Of course, we remain
at the Court’s disposal for any further information in this regard.
5.92. Madam President, distinguished Members of the Court, this brings me to the end of my
presentation. Let me thank you once again for your kind attention throughout these proceedings.
Could I now ask you, Madam President, to once again give the floor to Professor Varady, who will
conclude the Applicant’s arguments relating to the procedural aspects of this case.
The PRESIDENT: Thank you, Professor Zimmermann. I call Professor Varady.
VMAr. ADY:
6.C ONCLUDING REMARKS
6.1. Madam President, distinguished Members of the Court, approaching literally the final
hour of party presentations in this case, let me expre⎯ and emphasize ⎯ once again, my true
and deep respect for this honoured Court. During these proceedings, Professor Zimmermann,
Mr.Djeric and myself have dealt with the pro cedural setting of this imposing case, or more
specifically, with access and jurisdiction, and I would like to present our closing arguments.
Our conclusions
6.2. I would first like to repeat very briefly the main points of our presentations. I shall not
repeat the numerous arguments, we are maintaini ng all our arguments, I shall just repeat our
conclusions: - 54 -
6.3. First, there was no continuity. The FRY did not continue the personality and status of
the former Yugoslavia. It was not a Member and it was not a party to the Statute before
1November 2000. This is what follows from clear and authoritative pronouncements of the
General Assembly, of the Security Council, of the Secretary-General, and this is what was
unequivocally established by this Court. This means that the FRY had no access to the Court at the
relevant moment when the Application was s ubmitted, and it did not remain a party to the
Genocide Convention. It only became a party to the Genocide Convention when it acceded in
March 2001, with a reservation to Article IX ⎯ hence Article IX of the Genocide Convention
cannot represent a basis of jurisdiction.
6.4. The 1996 Judgment on jurisdiction is not res judicata. We have stated and explained the
reasons behind this conclusion. Special circumst ances which make the investigation of access and
jurisdiction necessary clearly exist. The Applicant advanced as an alternative proposal that the
Court should undertake a de novo investigation “[w]hether the FRY was actually a Member of the
United Nations and a party to the Genocide Conven tion during the time when the alleged genocide
was perpetrated” 63. We have nothing against this proposal.
6.5. Furthermore, there is no forum prorogatum and the FRY did not acquiesce to the
jurisdiction of this Court. In addition to the convincing arguments raised by my colleague
Zimmermann, let me say that we just do not see how one can contend that the Respondent went out
of his way to contest jurisdiction, that it stubbornly tried five times to convince the Court that it has
no jurisdiction64, and at the same time to argue that the Respondent acquiesced to the jurisdiction of
this Court.
6.6. The issue of access is a matter of objective determination. This determination was
already made by this Court with regard to the Respondent for the relevant time period.
Furthermore, all facts show that the FRY had no access to the Court under either Article 35 (1) or
under Article 35 (2) at the time when the Application was submitted.
6.7. And finally, the Respondent neither rema ined nor became bound by Article IX of the
Genocide Convention. It could not remain bound because it did not continue the personality and
63
CR 2006/36, p. 39, para. 41 (Franck).
6CR 2006/35, p. 54, para. 1 (Pellet). - 55 -
treaty status of the former Yugoslavia. It could not have become bound by the Genocide
Convention before 1 November 2000 because it was not a Member of the United Nations.
Furthermore the 27April 1992 declaration is no t a document which could have created treaty
status, and automatic succession did not and could not have created the requisite link either with
Article IX.
This dispute does not mirror the actual conflict
6.8. Permit me also, Madam President, to make a few general closing remarks. This is a
difficult case ⎯ and this is one of the few points on which both Parties agree. For one thing, it is a
difficult and complicated case because it does not mirror the dividing lines between the sides to the
actual conflict. Let me point out once again that this legal dispute between two multi-ethnic States,
Bosnia and Herzegovina as the Applicant, and Serbia and Montenegro as the Respondent, is simply
not a matching articulation of the actual conflict fought along ethnic dividing lines. The process of
the dissolution of Yugoslavia, which is also the co re of the jurisdictional problem, did not yield
States along ethnic dividing lines. This threat did not materialize. But this has consequences
regarding the setting of this case. The Applicant emphasized time and again that the axis along
which justice and injustice were allocated is that dividing Serbs and “non-Serbs”. We have pointed
out that this is an oversimplification. But even if we were to follow this line, given the track on
which this dispute was placed, a judgment just could not render justice along the same axis, it
cannot allocate justice between Serbs and Bosniaks , or “Serbs and non-Serbs”. The Applicant
speaks of the “[l]’armée serbo-bosniaque, qui a concrètement perpétré le genocide . . .” 65 A
judgment on the merits would find the Bosnian Serb s, the alleged perpetrators of genocide, on the
side of the alleged victim, while the Kosovo Albanians, for example, would find themselves on the
side of the alleged perpetrator.
6.9. What is more directly mirrored in this dispute are the uncertainties and controversies
about the character of States and State-like st ructures which have been emerging during this
conflict; controversies about sovereignty, secession, and continuity. It to ok long, unusually long,
before the Court was provided with sufficient information to take a conclusive position on issues as
65
CR 2006/35 p. 46, para. 21 (Condorelli). - 56 -
to whether the FRY did or did not continue the international legal personality of the former
Yugoslavia, whether it was or was not a party to the Statute between 1992 and 2000, and whether
the FRY could have remained or become bound by Article IX of the Genocide Convention.
6.10. We have reached this point now. United Nations authorities did finally take conclusive
positions, and the Parties presented arguments on is sues which were earlier not raised and faced.
We also have the benefit of the circumstance that the very same questions on which the procedural
standing of the Respondent depends were raised and decided by this Court in 2004 based on
sufficient and current information.
The question of consistency
6.11. Madam President, Members of the Court, as a further matter, I would like to address a
recurring claim regarding consistency, and a recurring charge of lack of consistency. Considerable
time and space has been devoted to this issue, different facets and angles have been pointed out ⎯
and it is, indeed, an issue of most considerable importance.
6.12. Let me start with the charge of inconsis tency, and with our own position. As we have
stated before, after hundreds of thousands of demonstrators put an end to the Milosevic régime, the
new Government had to reconsider the most b asic premises on which the country was functioning,
including its relationship towards the world and international organizations. Accepting what we
believe is the reality, we acted on this assumpti on. We drew consequences of this assumption
ourselves where it was for us to do so, and we wit hdrew our counter-claim. In all other instances,
we presented the same perception, and asked the Court to draw conclusions, and to decide on its
jurisdiction.
6.13. It is true, of course, that the positi on and the arguments we consistently presented are
not the same as those which were presented by the former Government of the FRY. But let me
point out also that this was not a tactical manoe uvre, just as the change in October 2000 was not a
simple change of government. It was a fundame ntal change which prompted the country to
reconsider the basic premises on which it was functi oning. Let me also mention that with respect
to the procedural questions we are talking abou t, the former Government of the FRY was wrong,
but not abusive, not manipulative, and not implausi ble under the circumstances. First of all, the - 57 -
position taken regarding continuity was in line w ith the political conviction and principles then
adopted by the FRY, rather than with its inter ests in the case. The former Government contested
jurisdiction, but on different grounds. The reason for which the Milosevic Government was widely
condemned, both in Serbia and Montenegro and in the world, is not its position on continuity.
6.14. At the same time, the inconsistency between Bosnia and Herzegovina’s position before
this Court and outside this Court is glaring. He re, the difference between positions taken is not the
result of some consequential development. Diffe rent positions have been taken at the same time,
suited to various purposes. Bosnia and Herzegovina was one of the co-sponsors of resolution 47/1
which denied the claim of the FRY for continuity 6. Since then, and until these days, Bosnia and
Herzegovina persistently denied continuity before international organizations which were in a
position to decide about membership, including the United Nations General Assembly and Security
Council. It argued against United Nations membership, and against treaty membership of the FRY.
It also argued and stressed that the FRY was not a party to the Statute. At the same time while
endeavouring to influence United Nations authorities to decide against continuity and membership,
Bosnia and Herzegovina is asking the Court not to heed what was achieved, not to follow the
positions taken by United Nations authorities, but to decide differently. This inconsistency is
manipulative.
6.15. Madam President, let us turn to anothe r angle of consistency, consistency of the
decisions of this Court. Speaking of the pract ice of various international courts, we have
demonstrated that a reconsideration of matters of jurisdiction, if this is prompted by special
circumstances of the case, is a mainstream solutio n consistently repeated. But it is mainstream
within a distinct, small group of truly rare cases. Practice shows that in situations in which
subsequent information casts serious doubts on a find ing of jurisdiction, international courts will
typically reinvestigate whether they have jurisdiction in order to avoid a decision ultra vires. But
such special circumstances are extremely rare. As far as the fact pattern of our case is concerned it
is not only rare, but simp ly unique. What we have faced is a true dilemma whether a State was or
was not a party to the Statute ⎯ a question which almost never arises ⎯ and at the same time, we
66
See United Nations doc. A/47/PV.7, p. 141. - 58 -
have also faced the consequences of an unorthodox dissolution of a State which could not be fitted
under any provision of the United Nations Charter.
6.16. Speaking of consistency at this moment, our colleague ProfessorPellet makes a
distinction between vertical and horizontal, plead ing for the priority of vertical consistency ⎯
which would be consistency w ith the 1996Judgment, rather than with the 2004Judgment on
Legality of Use of Force 67. But “vertical consistency” is actually nothing else than res judicata,
and we have demonstrated that under the circumstances of this case, the res judicata principle does
not represent an impediment to the investigation of access and jurisdiction.
6.17. Let me say that consistency is, of c ourse, a critically important consideration even
outside the context of the res judicata argument, and here we are reaching a simple but most
consequential question. Consistency with what ? Should one be consistent with what was
accessible and ascertainable in 1996, or one should be consistent with what became known in 2004
and what remains to be true today?
6.18. Madam President, the 1996 Judgment was not in contradiction with the information
obtainable in 1996. When the Legal Counsel stated that General Assembly resolution 47/1 “neither
terminates nor suspends” Yugoslavia’s membership in the United Nations without specifying to
what Yugoslavia he refers, when the depositary referred to Yugoslavia as a State party to the
Genocide Convention again without specifying to what Yugoslavia this refers, one of the possible
interpretations of this information was to hold th at the Federal Republic of Yugoslavia remained a
party to the Statute and to the Genocide Conve ntion. After the FRY was admitted as a new
Member of the United Nations, after the Secretary-General explained that references to Yugoslavia
were actually references to the former Yugoslavia, consistency with the newly available
information, and also with position taken by the competent United Nations authority, prompted a
different conclusion. This was the conclusion that the FRY was not a Member of the United
Nations between 1992 and 2000, was not a party to the Statute, and had no access to the Court ⎯
and this is what the Court decided in 2004.
67
CR 2006/36, pp. 20-21, paras. 51-52 (Pellet). - 59 -
6.19. Madam President, let me also add that since the assumption of continuity has clearly
been superseded and has no foundation, consistency with the 1996 Judgment is simply not possible
any more. A judgment on the merits asserting jurisdiction in the absence of the assumption of
continuity would not be consistent with the 1996 Judgment.
6.20. Trying to diminish the importan ce and the relevance of the 2004 decisions,
Professor Franck is quoting my argument accordi ng to which in the 1996 Judgment key questions
regarding the status of the FRY were not argued and decided, and he adds that if this is relevant,
then it has to be considered that in the Legality of Use of Force cases the Court did not have this
benefit either68.
6.21. It is true that the new Government of the FRY did not take in the Legality of Use of
Force cases a different position from that taken in other cases or from that taken before
international organizations. It pr esented its position and asked the C ourt to decide on jurisdiction.
But there are some obvious differences between the two cases regarding the information accessible
and the information presented to the Court. In the 1996 case, no preliminary objection dealt with
the issue whether the FRY was a party to the Stat ute, or whether it was a party to the Genocide
Convention. In the 2004 cases, Belgium, Canada, Germany, Italy, the Netherlands, Portugal and
the United Kingdom argued that the FRY was not a Member of the United Nations and was not a
party to the Statute. The issue was raised, a ddressed, and decided. What is also important ⎯ and
we have stressed this ⎯ the information available to the Court was finally authoritative and
sufficient to reach definitive conclusions.
6.22. Madam President, the fact is that by now it has become known that the Respondent did
not continue the personality and treaty status of th e former Yugoslavia. It was not a party to the
Statute between 1992 and 2000. It has also become known that the depositary is listing Serbia and
Montenegro as a new party to the Genocide Convention by virtue of its accession in 2001, and with
a reservation to Article IX. The only conclusion c onsistent with these facts is that the Respondent
had no access to the Court when the Bosnian Application was submitted, and that the Respondent
is not bound by Article IX of the Genocide Convention.
68
CR 2006/36, p. 39, para. 40 (Franck). - 60 -
6.23. Madam President, there is another most important angle of consistency. This is
consistency of outcomes and consequences. In the words of Judge Rezek:
“Il serait inéquitable, il serait contraire aux principes les plus élémentaires du
droit, de nier à un Etat, à l’intérieurd’un système donné, une qualité quelconque au
regard de certains effets, et d’affirmer cette qualité par rapport à d’autres effets
choisis.” ( Application for Revision of the Judgment of 11July1996 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), Judgm ent, I.C.J. Reports 2003, declaration
of Judge Rezek, para. 3.)
6.24. Madam President, consistency of outco mes and equal treatment are the high ground
which is beyond the reach of criticism stemming from heated and irreconcilable expectations.
6.25. Out of the cases in which the standing and qualifications of the FRY between 1992 and
2000 emerged as a threshold issue, this case and th e case with Croatia ar e still pending, only the
Legality of Use of Force cases have been concluded. The outcome of the concluded cases is that
the FRY was not qualified to be a party before this Court, because at the time when the Application
was submitted in 1999, it was not a Member of th e United Nations, and was not a party to the
Statute. It had no access to the Court, and hence the Court denied jurisdiction. For the same reason
the FRY was consistently denied membership in other international organizations, and was not
recognized as a party to international treaties. Th is has so far been the outcome of all disputes
involving the issue of continuity.
6.26. Whenever the FRY asserted membership rights or acted on the assumption of
membership rights in the United Nations in various international organizations and treaties, the
question was raised whether the FRY, indeed, remained a Member of the United Nations, and
whether it was a party to a given treaty or a member of a given international organization between
1992 and 2000. The answer was invariably nega tive. Bosnia and Her zegovina was among those
who forcefully and consistently opposed the rec ognition of any membership rights of the FRY.
The outcome was that the FRY was disallowed to benefit from rights based on membership,
because it was not a Member. The efforts of the FRY did yield some hesitation, did bring about
some hazy concepts and contradictions, but did not yield either membership in international
organizations, or the status of a contracting party to treaties. - 61 -
6.27. The position taken, and the wording was esse ntially the same. To illustrate this with
just one example, we shall cite the position take n by the World Health Organization. The WHO
Assembly decided at its plenary meeting on 3 May 1993 –– and you can follow this in our judges’
folders at tab 4 . It gives the whole text, but I am citing a part of the text which says:
“The Forty-sixth World Health Assembly,
1. Considers that the Federal Republic of Yugoslavia (Serbia and Montenegro)
cannot continue automatically the member ship of the former Socialist Federal
Republic of Yugoslavia in the World Health Organization;
2. Decides that the Federal Republic of Yugoslavia (Serbia and Montenegro) should
apply for the membership of the World Health Organization in accordance with
the relevant provisions of the Constitu tion and that it shall meanwhile not
participate in the work of its principa l and subsidiary organs, including the
Forty-sixth World Health Assembly.” 69
6.28. Other international organizations have followed the very same logic, adopted the same
arguments, and came to the same conclusion . 70
6.29. The issue of the position of the FRY was also raised at meetings of State parties to
treaties, including human rights treaties. Invariably, a motion was made to disallow the
participation of the FRY. These motions were successful. The claim to continuity was not
accepted, the FRY was not allowed to take the seat of the former Yugoslavia, and it was not
71
allowed to participate in the work of meetings of State parties . The outcome was the same.
6.30. Madam President, the FRY did not have any benefit of the proposition of continued
personality. There were, indeed, ambiguous designations, there were inconsistencies, but no
membership rights. The FRY was not a member of various international organizations on grounds
of continuity ⎯ it only became a member when it app lied and was admitted as other successor
69WHA 46.1, 3 May 1993.
70E.g., International Civil Aviation Organization ⎯ ICAO (ICAO resolution A29-2, 25 September 1992); the
World Intellectual Property Organization ⎯ WIPO (see the decision adopted by th e Governing Bodies of WIPO and the
Unions administered by WIPO on 24 September 1992, AB/XXIII/5 ⎯ Third Series of Meetings, Geneva,
21-29September 1992); the General Agreement on Tariffs and Trade ⎯ GATT (see the record of the meeting of the
Council on 16-17 June 1993-C/M/264); the Unesco (see the list of Unesco Member States as of 1 October 2003, Note 4;
the International Maritime Organization ⎯ IMO (see IMO resolution C.72(70), 18 J une 1993); the International Labour
Organisation ⎯ ILO (see Participation of the Federal Republic of Yugoslavia in the 81st session (1994) of the
International Labour Conference , Official Bulletin , Vol. LXXVII, SeriesA, 199166); the International Atomic
Energy Agency ⎯ IAEA (see IAEA General Assembly resolution GC (XXXVI)/RES/576).
71See e.g., rejection by State parties to the Convention on the Rights of the Child, Convention against Torture and
other Cruel, Inhuman or Degrading Treatm ent or Punishment, the International C ovenant on Civil and Political Rights,
and in many other instances. - 62 -
States were. It was not accepted as a State party to treaties on grounds of continuity ⎯ it only
became a party when it submitted a notification of accession or succession.
6.31. And now, after the same decision has repeatedly been made, and after authoritative
clarifications were made, we are facing once again the same question as to whether the FRY was a
Member of the United Nations between 1992 and 2000, and whether it continued the treaty status
of the former Yugoslavia in the Statute and in th e Genocide Convention. The answer to the same
question just cannot be different in this case either. The answer to the same question has to be the
same, and the outcome has to be the same.
6.32. Madam President, another argument was raised against overruling the position taken in
1996 on the grounds of what is now known and recognized. The Applicant observed that
inconsistencies are a fact of life, that it is pe rfectly normal that two judgments rendered within an
interval of ten years “[a]boutissent, le cas échéant, même si c’est regrettable, à des solutions
juridiques différentes, voire incompatibles” 7.
6.33. Indeed, such things do happen, no mach inery of justice is perfect. If a decision was
rendered ten years ago, and in a new case the Court gets convinced that different legal
consequences should be attached to the same fact pattern ⎯ and regrettably, the earlier case is
already concluded ⎯ obviously nothing can be done. The case decided ten years ago is not within
the sphere of authority of the Court, it is not w ithin the power of the judges anymore, and it cannot
be reconsidered on the grounds of the newly emerged knowledge and insight. But this is not our
situation. Here, in our case, the issue is still before the Court. It can be decided on the grounds of
newly emerged knowledge and insight. The Court just cannot disregard its present level of
information while the final decision is still in its ha nds. This is the reason why the principle set in
the ICAO Council Judgment is so plainly justified. In our situation it is perfectly possible to decide
now on the grounds of all information the Court now possesses.
6.34. Madam President, distinguished Member s of the Court, among the cases in which the
same issue emerged, the eight Legality of Use of Force cases have an outcome. The case with
Croatia and this case are still not fi nally decided. Information and insight available today lead to
72
CR 2006/36, p. 22, para. 57 (Pellet). - 63 -
the same outcome as that reached in the Legality of Use of Force cases. Consistency, equal
outcomes and equal treatment are not only fully justif ied, but also possible. We are respectfully
asking this Court to establish that the Responde nt had no access to the Court at the relevant
moment in time and to decline jurisdiction in this case.
Madam President, Members of the Court, I am truly grateful for your attention, and I would
like to ask you now, Madam President, to give the floor to our agent, Professor Stojanović.
The PRESIDENT: Thank you, Professor Varady. Professor Stojanović, you have the floor.
STMO.JANOVI Ć : Thank you, Madam President.
C ONCLUSION GENERALE
1. Et voilà le temps est venu pour un discours fi nalement qui peut être intitulé la conclusion
générale des plaidoiries de la délégation de Serbie-et-Monténégro, et je commencerai cette
conclusion générale, Madame le président, Messieurs les juges, que l’on est arrivé à la fin d’un
procès historique. Au cours des deux derniers mois et demi, les équipes d’avocats des deux Parties
adverses se sont employées à présenter les éléments de preuve, à exposer leurs arguments respectifs
et à interroger les témoins et les experts. L’ équipe de la Partie de la Bosnie-Herzégovine,
composée d’éminents juristes internationaux, s’est employée, tout au long de ce procès, à plaider
en faveur d’une interprétation élargie de la notion de génocide. Elle a aussi insisté sur la thèse qu’il
ne pouvait y avoir de paix sans justice.
2. De son côté, l’équipe de la Partie de laSerbie-et-Monténégro que j’ai eu l’honneur de
diriger ⎯ et qui est composée aussi bien d’éminents avocats internationaux que de jeunes juristes
de notre pays ⎯, s’est avant tout employée à servir la cause de la justice. Mais elle a aussi cherché
à défendre l’avenir même du peuple serbe au sein de la communauté des peuples européens fidèles
aux traditions démocratiques, ce qui est le seul vér itable destin de ce peuple. Si nous avons nié la
responsabilité de notre Etat pour les crimes qu i lui sont imputés par la requête de la
Bosnie-Herzégovine, nous n’avons point voulu nier le fait que des crimes avaient été commis. Et si
nous avons cherché à mettre en exergue les dé faillances de la requête introduite par la
Bosnie-Herzégovine, ainsi que les éléments illogi ques des arguments développés par le requérant,
nous n’avons pas pour autant souhaité défendre le régime déplorable de Slobodan Milosevic, - 64 -
auquel d’ailleurs tous les représentants de la Serb ie-et-Monténégro dans le présent procès étaient
opposés et qu’on peut qualifier comme l’une des épre uves les plus dures de notre histoire récente.
Nous sommes, en effet, d’avis que le caractère antidémocratique et anachronique de ce régime ne
peut pas servir de prétexte à la Partie adverse pour imputer tous les péchés des Balkans à un seul
peuple lequel, à un moment de son histoire, avait subi le régime de Slobodan Milosevic.
3. Madame le président, permettez-moi à présent de mettre en exergue certains points qui,
selon notre avis, ont une importance cruciale et qui concernent le mérite de la présente complexe
affaire.
4. Au cours de la présente procédure, la Pa rtie de la Serbie-et-Monténégro a apporté des
preuves ⎯ aussi bien au cours de nos plaidoiries que par les dépositions des témoins ⎯ en faveur
de notre hypothèse de départ : «Personne et rien ne peut prouver que le Gouvernement de la RFY
(Serbie-et-Monténégro) et le peuple serbe, ont eu l’intention d’exterminer , en partie ou dans
l’ensemble, les Musulmans et les Croates de la Bosnie-Herzégovine.» (CR 2006/14, p. 10, par. 1.)
5. Nos témoins, ceux venant de la Serbie-e t-Monténégro tout comme ceux venant de la
Republika Srpska, ont confirmé que la Serbie-et-Monténégro n’a pas exercé de contrôle sur les
autorités de la Republika Srpska, ni sur le plan pol itique, ni sur le plan militaire, ni sur le plan
financier.
6. Notre témoin, le professeur Dragoljub Mi cunovic, a démontré devant cette honorable
Cour, qu’en Serbie de l’époque, il existait des fo rces politiques qui ont Œuvré activement en faveur
d’une résolution pacifique des conflits politiques en ex-Yougoslavie. Déjà, à partir de 1990, quand
les différentes communautés ethno-nationales de l’ex-Yougoslavie ont commencé à s’organiser
aussi sur le plan militaire, l’opposition politique a mené en Serbie une forte campagne ⎯ tant sur le
plan interne que sur le plan international ⎯ visant à éviter le déferlement de la guerre en
ex-Yougoslavie.
7. La campagne politique me née par l’opposition en Serbie a contribué à l’échec de la
mobilisation qui a été décrétée en automne 1991. Ceci a démontré que le peuple était opposé à la
guerre en ex-Yougoslavie. Nous sommes dès lors d’avis que cette honorable Cour ne saurait pas
déclarer l’Etat de ce peuple co mme coupable des crimes que la requête de Bosnie-Herzégovine et
les plaidoiries des avocats du demandeur veulent lui imputer. La Partie de la Bosnie-Herzégovine a - 65 -
souligné, à plusieurs reprises, que la présente requête ne visait pas le peuple serbe mais l’ Etat
serbe. Pourtant, une éventuelle condamnation de cet Etat porterait préjudice avant tout au peuple
de cet Etat puisqu’elle mènerait à la stigmatisation de ce peuple et aurait des conséquences
historiques durables.
8. Nos témoins venant de la Republika Srpska, le professeur Vladimir Lukic et le professeur
Vitomir Popovic, qui ont occupé ⎯ pendant la guerre ⎯ de hauts postes au sein du Gouvernement
de la Republika Srpska, ont confirmé que, les auto rités de la Republika Srpska avaient gardé leur
indépendance par rapport au Gouvernem ent de la Serbie-et-Monténégro, tant sur le plan législatif
que sur le plan exécutif et judiciaire. Cette indépendance s’est manifestée, entre autres, par le refus
de la Republika Srpska de signer le plan de paix élaboré par Vance-Owen une année après le
commencement de la guerre, suivi du refus en 1994 du plan de paix élaboré par le groupe de
contact, en dépit des démarches entreprises par le Gouvernement de la Serbie-et-Monténégro pour
inciter le Gouvernement de la Republika Srpska à approuver ces deux plans de paix.
9. Notre témoin, M. Dusan Mihailovic, fut un des protagonistes de la scène politique en
Serbie qui à l’époque fut aussi bien membre du gouvernement que membre d’un parti politique de
l’opposition. En tant qu’un des leaders des par tis politiques de l’opposition, en 2000 il a contribué
au renversement du régime de Slobodan Milosevic. Après octobre 2000, il est devenu ministre de
l’intérieur du gouvernement démocratique de la Serbie. Il a apporté une contribution significative à
la lutte contre la criminalité organisée que la Serbie avait héritée du régime de Slobodan Milosevic.
L’intégrité de M. Mihailovic ne peut donc pas être mise en question. Ainsi, lors de son
témoignage, M. Mihailovic a affirm é, sans équivoque, que le Gouve rnement de la Serbie n’avait
pas exercé de contrôle sur la Republika Srpska pendant la guerre de 1992 à 1995, et que les
questions portant sur cette guerre n’avaient jamais figuré sur l’ordre du jour de ce gouvernement.
10. Dans un souci de brièveté, je m’abstiens de dresser un ré capitulatif complet des exposés
faits par les témoins et par les experts. Des réfé rences supplémentaires étaient faites par les autres
membres de notre délégation lors de leurs exposés respectifs.
11. Nous sommes d’avis que les crimes commis pendant la guerre en Bosnie-Herzégovine ne
peuvent pas être imputés à l’Etat de Serbie-et-Monténégro. - 66 -
12. L’Etat demandeur a mis l’accent sur l’argument que les actes génocidaires allégués et le
plan allégué qui aurait existé afin de commettr e le génocide sont imputables aux autorités de
Belgrade. Ce point apparaît clai rement dans la réplique et le s plaidoiries du premier tour. Cet
argument a été fermement réfuté dans le premier tour par M. Ian Brownlie, Q.C. qui a développé de
fortes preuves de non imputabilité. En plus, M. Brownlie a indiqué le manque de preuves
convaincantes qui auraient prouvé le plan génocidaire.
13. Les tentatives du demandeur de dénigrer les fortes preuves de non-imputabilité dans le
deuxième tour étaient également réfutées par les preuves complémentaires produites. Dans le
deuxième tour, M. Brownlie a également remar qué et souligné que le demandeur a renoncé à
s’appuyer sur le plan génocidaire allégué.
14. Nous affirmons que les crimes commis en Bosnie-Herzégovine pendant la guerre
de 1992 à 1995 ne peuvent pas être qualifiés de crim es de génocide. Nous avons démontré que le
demandeur n’a pas démontré l’intention génocidai re qui est indispensable pour que l’Etat puisse
répondre du génocide. Il n’a pas démontré un plan, un projet ou une ligne de conduite dont
l’intention génocidaire pourrait être déduite. Par ailleurs, le demandeur n’a pas spécifié le groupe
protégé conformément aux critères déterminés par la convention sur le génocide.
15. Nous insistons, une fois de plus, il exis te une différence fondamentale entre les crimes
commis par le régime nazi (lors de la «Kristal Nacht») et les crimes commis en
Bosnie-Herzégovine : en Bosnie-Herzégovine, ces cr imes ont été commis au cours d’une tragique
guerre civile et multiethnique, tandis qu’en Allemagne, il n’ava it pas été question d’une guerre
entre les nazis et le peuple juif.
16. Madame le président, Messieurs les juges, le requérant s’est efforcé de réduire les
événements dramatiques et complexes de la dern ière décennie à une confrontation simpliste entre
«le mal» et «le bien»; à savoir entre les Serbes qui sont «les mauvais» et les non-Serbes qui sont
«les bons». La Partie de la Bo snie-Herzégovine avait ainsi prétendu que toute décision de la Cour
qui irait dans le sens de sa requê te, serait une décision en faveur du «bien» et que cette décision
contribuerait également au bien-être général et au processus de la démocratisation dans la région.
Une telle approche ne peut être basée que su r la méconnaissance ou la dénaturation des faits ⎯ et
c’est ce que, selon notre avis, le requérant a fait t out au long de cette procédure. Ce point fut - 67 -
développé déjà dans la pa rtie IV de ma plaidoirie (par. 173-179) ainsi que dans la partie qui porte
sur les conflits entre les Croates et les Musulmans de Bosnie-Herzégovine, d’une part, ou entre les
différentes factions des Musulmans de Bosnie-H erzégovine, d’autre part (par.180-183). Il est
évident que dans ces conflits-là, on ne peut pas parl er des «Serbes» et des «non-Serbes». La Partie
adverse passe aussi outre le fa it qu’environ 10 %, à peu près un de mi-million, de la population de
Bosnie-Herzégovine était les citoyens qui se déclaraient comme des «Yougoslaves». On peut ainsi
poser à la Partie adverse une question supplémentaire: Au sein de cette catégorie-l à de la
population, peut-on faire une distinction entr e les «Yougo-Serbes» et les «Yougo-non-Serbes», et
peut-on déterminer qui appartenait à l’un ou l’au tre de ces deux groupements ? La Partie adverse
ne fait pas état de cette réalité pourtant significa tive. Pourquoi? Parce que cette réalité ne
correspond pas au schéma simplifié selon leque l la population de Bosnie-Herzégovine était
subdivisée entre les «Serbes» et les «non-Serbes».
17. Pour donner un autre exemple de dénatura tion des faits, je vais citer la plaidoirie de
M. van den Biesen concernant les actes commis contre les Musulmans sur le territoire de la Serbie.
Puisque M. van den Biesen souhaitait prouver, à tout prix, que des atrocités furent commises contre
les Musulmans en Serbie, il a dû faire appel à une extension créative de la notion de Musulmans.
M. van den Biesen a ainsi évoqué des actes commis contre les «Muslims in Kosovo». En réalité, et
de toute évidence, les Musulmans auxquels le co agent du requérant faisait référence sont les
Albanais. Dans ce contexte, il est utile de ra ppeler qu’un nombre signi ficatif d’Albanais de
Kosovo sont des chrétiens et qu’il est donc impossible de faire une équation entre «les Albanais» et
«les Musulmans». Il est, de surcroît, notoire que les Musulmans qui font l’objet de la présente
affaire appartiennent à une communauté ethnique et non pas à une communauté religieuse. En
effet, ils appartiennent à l’une des nations constitutives de la Bosnie-Herzégovine, dont la
dénomination officielle est aujourd’hui «Bosniaque».
18. Il est évident que si l’on tient compte d es éléments mentionnés ci-dessus, on doit laisser
de côté les stéréotypes. Or, les stéréotypes, ⎯la «mantra», comme dirait l’agent adjoint,
M. van den Biesen ⎯, occupent une place importante dans les plaidoiries du requérant, et
comportent, entre autres, l’extension de la catégorie des Musulmans (Bosniaques) aux Albanais. - 68 -
19. Madame le président, Messieurs les juges, il ne s’agit pas ici d’une affaire simple où la
vérité peut être recherchée avec l’aide de stéréoty pes. Il s’agit d’une affaire des plus complexes,
qui entraîne aussi des questions cruciales relatives à la compétence de la Cour. Cette affaire ne
peut donc être dénouée que par l’examen méticuleux des questions de fait et de droit et non pas par
le recours aux stéréotypes.
20. La Partie adverse a demandé à cette honorable Cour d’imputer à l’Etat de
Serbie-et-Monténégro des actes que cet Etat n’a pas commis et de lui imposer les réparations en
faveur de la Bosnie-Herzégovine.
21. Madame le président, comme vous le savez, la Republika Srpska, qui représente 49 % du
territoire de la Bosnie-Herzégovine, ne soutient pas la requête introduite par la Bosnie-Herzégovine
devant cette honorable Cour. Perme ttez-nous dès lors d’attirer votre attention sur le fait que si la
Serbie-et-Monténégro était trouvée coupable pour le crime de génocide, les conséquences d’un tel
jugement pourraient être néfastes.
22. Nous prions dès lors la Cour de statuer en faveur de la réconciliation et non pas en faveur
de la continuation du conflit. N ous avons toute confiance que le droit sera l’unique fondement
d’une telle décision et que la justice judiciaire sera ainsi rendue dans la présente affaire.
23. Au cours des deux tours de plaidoiries, les représentants de la Bosnie-Herzégovine ont
démontré qu’ils maîtrisaient l’art élaboré de la rhétorique mais ils ont apporté peu de preuves
valables. Cette approche étrange adoptée par la Partie adverse da ns une affaire qui est complexe,
en réalité reflète la conviction de la Partie adverse que tous les faits étaient indubitables et qu’il ne
reste plus à cette honorable Cour que de re ndre sa décision aux termes de laquelle la
Serbie-et-Monténégro serait déclarée responsable pour le crime de génocide.
24. Madame le président, Messieurs les juges, notre éventuel succès dans la présente affaire
ne peut constituer pour nous une occasion de réjouissance. Après la grande tragédie que nous
avons vécue sur le territoire de l’ex-Yougoslavie, il ne peut y avoir lieu de réjouissance pour
aucune des deux Parties. Il nous faut, au contrair e, tirer les leçons nécessaires de ce qui s’est passé
et nous employer à bâtir les chemins et les ponts au service de la réconciliation et de notre future
coopération. - 69 -
25. Permettez-moi, enfin, Madame le prési dent, de lire la conclusion écrite de la
Serbie-et-Monténégro.
C ONCLUSIONS FINALES DE LA S ERBIE -ET-M ONTÉNÉGRO
En application de l’article 60, paragr aphe 2, du Règlement de la Cour, la
Serbie-et-Monténégro prie la Cour de dire et juger :
⎯ que la Cour n’a pas compétence car, au moment pertinent, l’Etat défendeur n’avait pas accès à
la Cour; ou alternativement
⎯ que la Cour n’a pas compétence car l’Etat défe ndeur n’est jamais demeuré ni devenu lié par
l’articleIX de la convention sur la préventi on et la répression du crime de génocide et parce
qu’il n’existe aucun autre fondement à la compétence de la Cour;
Si la Cour détermine qu’elle a compétence, la Serbie-et-Monténégro prie la Cour de dire et
juger :
⎯ que les demandes contenues dans les para graphes 1 à 6 des conclusions de la
Bosnie-Herzégovine concernant les violations a lléguées des obligations incombant à l’Etat en
application de la convention sur la préventi on et la répression du crime de génocide sont
rejetées comme non fondées en droit et en fait;
⎯ en tout état de cause, que les actes et/ou les om issions dont le défendeur aurait été responsable
ne sont pas imputables au défendeur. Une telle imputation aurait nécessairement impliqué la
violation du droit applicable dans cette procédure;
⎯ sans préjudice des demandes susvisées, que la réparation accordée à l’Etat demandeur dans
cette procédure, en application d’une interp rétation appropriée de la convention sur la
prévention et la répression du crime de génocide, se limite à un jugement déclaratoire;
⎯ ensuite, et sans préjudice des demandes susv isées, qu’aucune question relative à la
responsabilité juridique concernant les violati ons prétendues des ordonnances en indication de
mesures conservatoires rendues par la Cour l es 8 avril 1993 et 13 septembre 1993 n’entre dans
la compétence de la Cour, qui ne peut accorder de remèdes appropriés à l’Etat demandeur dans
le contexte de la procédure contentieuse, etqu’en conséquence la dema nde contenue dans le
paragraphe 7 des conclusions de la Bosnie-Herzégovine doit être rejetée. - 70 -
Finalement, je vous remercie, Madame le pr ésident et Messieurs les juges de la Cour
internationale de Justice, pour votre gentille attention consacrée à la délégation de la
Serbie-et-Monténégro pendant les plaidoiries qu’elle a présentées devant vous. Merci.
The PRESIDENT: Thank you very much, Mr. Stojanovi ć. The Court takes note of the final
submissions which you have read on behalf of Serbia and Montenegro as it took note on
24 April 2006 of the final submissions of Bosnia and Herzegovina. I shall now give the floor to the
Vice-President who has two questions for the Parties. Vice-President.
The VICE-PRESIDENT: Thank you, Madam President.
Madam President, I should like to pose two questi ons. The first is addressed to both Parties,
the second only to Serbia and Montenegro. They are as follows.
In 1996 the Federal Republic of Yugoslavia concluded two bilateral agreements with Croatia
and Macedonia, respectively, and its President made a joint declaration with the President of the
Presidency of Bosnia and Herzegovina. In those instruments there are provisions which appear to
recognize in different terms the continued personality of the Fede ral Republic of Yugoslavia. I
would be interested to read the comments of both Parties on those provisions.
The second question, addressed to Serbia and M ontenegro, is the following. In the opinion
of Serbia and Montenegro, was the Federal Re public of Yugoslavia a Member of the United
Nations in the period between 27 April 1992, when it came into existence, and 19 September 1992,
when Security Council resolution777 was adopted followed, of course, by General Assembly
resolution 47/1 of 22 September 1992.
Thank you, Madam President.
The PRESIDENT: Thank you. The text of th ese questions will be passed to the Parties as
soon as possible and, as regards the first question, the cited documents will be attached thereto.
The Parties are invited to provide their written replies to the questions no later than Friday
12 May 2006.
This brings us to the end of these nine weeks of hearings in the case. I would like to thank
the Agents, counsel and advocates for their statemen ts. In accordance with the Court’s practice, I - 71 -
shall request both Agents to remain at the Court’s disposal to provide any additional information it
may require.
With this proviso, I now declare closed th e oral proceedings in the case concerning the
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro).
The Court will now retire for deliberation. The Agents of the Parties will be advised in due
course of the date on which the Court will deliver its judgment.
Since the Court has no other business before it today, the sitting is closed.
The Court rose at 1.25 p.m.
___________
Audience publique tenue le mardi 9 mai 2006, à 10 heures, au Palais de la Paix, sous la présidence de Mme Higgins, président