CR 2006/16
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2006
Public sitting
held on Monday 13 March 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 lundi 13 mars 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: Presieitgins
Vice-Presi-Kntasawneh
Ranjevaudges
Shi
Koroma
Parra-Aranguren
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda
Bennouna
Skotnikov
Judges ad hoc AhmedMahiou
Kre Milenko ća
Couvrisrar
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
AlKh.vsce-prh,ident
RaMjev.
Shi
Koroma
Parra-Aranguren
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda
Bennouna
Sjoteiskov,
MM. Ahmed Mahiou,
KMrilenko 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),
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,
Mr. Antoine Ollivier, Temporary Lecturer and Research Assistant, University of Paris X-Nanterre, - 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),
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.,
M. Antoine Ollivier, attaché temporaire d’ense ignement et de recher che à l’Université de
Paris X-Nanterre, - 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. (Minneapolis),
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. (Minneapolis),
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. Professor Brownlie, you have the floor.
Mr. BROWNLIE: Thank you, Madam President. Madam President, it is a privilege to
appear in front of the Court in this extraordinary case.
A. T HE QUESTION OF PROOF AND THE EVENTS IN SREBRENICA
1. Madam President, distinguished Members of the Court, may it please the Court: before I
move into my analysis of the provisions of the Convention and the related issues of attribution, it is
necessary to present a prelude on the question of Srebrenica in the context of imputability.
2. The delegation of Bosnia and Herzegovina have treated the events in Srebrenica as the
paradigm case of genocide, pla nned and organized by the respondent State. The Court has been
given a very abbreviated version of the sequence of events. This is not unfortunately recognized by
our opponents and ProfessorCondor elli, on 7March, declared that Srebrenica has been fully
documented.
3. Madam President, that is not the case. The facts are on the public record, and they show
that the sequence of connected events involved an armed conflict between the 28th Division of the
Bosnian army based in the enclave and the army of the Republika Srpska.
4. The other key facts are:
First, the practice of the Bosnian army in raiding Serbian villages in the Srebrenica-Bratunac
region, raids which commenced in December 1992.
Second, even when the Security Council declared Srebrenica to be a safe area in April 1993,
the enclave was not demilitarized.
Third, the raids on Serbian villages in the regi on caused substantial civilian casualties, and
those who understood the background feared reprisal s if and when the Bosn ian armed forces were
defeated.
5. I will now indicate to the Court the evidential sources available.
The first item is the CIA study entitled Balkan Battlegrounds, published in May 2002.
“The 1992 war in the Drina valley spilled over into January 1993 when the
Bosnian Army’s offensive around Srebrenica began in late December. Coming on top
of extensive victories throughout the valley in 1992, the offensive impelled the
Bosnian Serbs to plan for 1993 a strategic offensive to secure the Drina valley up to - 11 -
the border with Serbia. If successful, th e campaign would fulfil the Serb Republic’s
war aim of joining its border with that of Serbia proper. The strategic offensive plan
laid out a series of individual operations ag ainst the three main enclaves, culminating
in an operation to cut the supply line to Gorazde and link Serb-held Herzegovina
directly to the rest of the Serb republic. The campaign expanded into an effort to
sever the Muslims’ only supply route into Sarajevo across Mount Igman. This last
attack proved too much for the interna tional community, and the threat of NATO
airstrikes forced the Bosnian Serb political leadership to order General Mladic to
remove his forces from the mountain.
For Naser Oric ⎯ commander of Bosnian Army forces in the Srebrenica
enclave ⎯ his December 1992 offensive was the climax of a successful year of
operations ⎯ that had played havoc with the Bo snian Serb Drina Corps and the Serb
populated villages throughout the Srebrenica ar ea. His last successful attack cut the
tenuous road connection between Serb-held Bratunac and the Zvornik area while
linking his own forces to the Muslim-h eld Cerska-Kamenica pocket south of
Zvornik.” (Balkan Battlegrounds, Vol. 1, p. 184.)
6. The same source, at page 318, states that, according to one estimate, more than 3,000 Serb
soldiers and civilians had been killed or wounded by Bosnian soldiers from the Srebrenica area
since the war began.
7. The second source is the substantial report prepared on the instructions of the Government
of the Netherlands. In the part of the report dealing with the period prior to April 1993, the
following assessment appears:
“It became clear that the Serbs woul d suffer even greater losses because more
and more Serb villages and hamlets were be ing attacked by the Muslims. Various
Serbian commanding officers were killed or we re seriously wounded in fighting, for
example at Kravica and Konjevic Polje. Gi ven the fact that villages in this region
were for the most part ethnically homogenous and small in size, it was easy for large
groups of Muslim attackers to distinguish Serb from Muslim villages. If it was a Serb
settlement, it was directly and without rega rd to persons plundered and burned down.
In the summer and autumn of 1992, th e sallies into the Serbian area became
increasingly frequent and violent. Moreover, Muslims who had been driven out of
their villages went back to pick up the f ood and possessions they had had to leave.
The food situation in the enclave of Srebrenica became more and more acute, which
was a strong incentive for carrying out raids. The Muslim forces were constantly
looking for ways to strengthen their strategic positions. Finally, revenge also played a
role. The regular troops were often unable to restrain the large groups of civilians who
took part in the sallies, although the fear that these caused the Serbs was convenient to
them.
After more than half a year of sallies, thirty Serb villages and seventy hamlets
had fallen into Muslim hands and there we re only a few places left that were Serb,
among them Bratunac. Kravica was one of the last to fall into Muslim hands, on
Orthodox Christmas (7January 1993). There were at least a thousand Serb civilian
casualties in all. Consequently, it is unde rstandable that the Serbs saw the situation
around Srebrenica as a war of aggression by the Muslims. They felt more and more
threatened; many people had lost family or friends; and the humiliation and bitterness - 12 -
experienced as a result of the Muslim attacks was great. Most Serbs sought revenge if
the opportunity presented itself.” (Netherlands Report, pp. 1277-1278.)
8. The third source is the Judgment of the Trial Chamber in the Krstić case. The relevant
passage reads as follows:
“24. The Trial Chamber heard credible and largely uncontested evidence of a
consistent refusal by the Bosnian Muslims to abide by the agreement to demilitarise
the ‘safe area’. Bosnian Muslim helicopters fl ew in violation of the no-fly zones; the
AbiH opened fire toward Bosnian Serb lines and moved through the ‘safe area’; the
28th Division was continuously arming itself; and at least some humanitarian aid
coming into the enclave was appropriated by the AbiH. To the Bosnian Serbs it
appeared that Bosnian Muslim forces in Srebrenica were using the ‘safe area’ as a
convenient base from which to launch o ffensives against the VRS [that is, the
Republika Srpska armed forces] and that UNPROFOR was failing to take any action
to prevent it. General Halilovi ć admitted that Bosnian Muslim helicopters had flown
in violation of the no-fly zone and that he had personally dispatched eight helicopters
with ammunition for the 28th Division. In moral terms, he did not see it as a violation
of the ‘safe area’ agreement given that th e Bosnian Muslims were so poorly armed to
begin with.” (Judgement, pp. 9-10, footnotes omitted.)
9. And so, when the Bosnian army in the region was defeated the results were in local terms
the taking of revenge. The sequence of events , which began in December 1992, involved the two
sets of locally related armed forces, which included many who were themselves the victims of
atrocities. No long-term planning was involved and certainly no planning in Belgrade.
10. In this context the factual evidence o ffered on behalf of the applicant State is
unfortunately very limited. If I can refer to the speech of Mr.van den Biesen (CR2006/4,
pp. 37-60). His account covers the period 1991 to July 1995. Madam President, in 20 pages, there
is only one reference to the “Bosnian forces”; th at is in paragraph24. At no stage is there a
reference to the Bosnian army 28th Division, wh ich contained 6,000 men, and the evidence of
prolonged military confrontation. Nor is there any reference to the repeated attacks on Serbian
villages in the region of Srebrenica by units of the Bosnian army.
11. Madam President, the treatment of the ev idence by our opponents shows a complete
indifference to the actual nature of the conflict in the region. This indifference and the serious
truncation of the relevant evidence, must entail ma jor reservations in relation to the allegations of
prior planning of the murders in Srebrenica in 1995, and any involvement of the FRY Government.
12. Madam President, I have focused upon Srebrenica because it is typical of the monolithic
and superficial approach to the question of imputability adopted by the applicant State. I shall now
proceed with my general analysis. - 13 -
B. T HE PRECISE CHARACTER OF THE RESPONSIBILITY OF THE STATE
UNDER THE G ENOCIDE C ONVENTION
13. The legal issues can be summarized as follows . The first issue concerns identification of
the applicable law. This is important in view of the context in which the Genocide Convention is
to be applied. The applicable law is clearly the la w of treaties, together with the principles of State
responsibility for breaches of the obligations laid down in the treaty instrument.
14. At this point, there is the further problem of the interpretation of the Genocide
Convention provisions. Two interpretations are po ssible: first, the use of the Convention to
establish the responsibility of the State, as such, fo r acts of genocide as, apparently, envisaged in
Article IX of the Convention; and second, the exercise by the Court of a competence confined to
the giving of a declaratory judgment relating to breaches of the duties to prevent and punish the
commission of genocide by individuals.
15. The first interpretation was preferred by the majority of the Court in the preliminary
objections phase of the present case. In the words of the Judgment:
“32. The Court now comes to the se cond proposition advanced by Yugoslavia,
regarding the type of State responsibility envi saged in ArticleIX of the Convention.
According to Yugoslavia, that Article would only cover the responsibility flowing
from the failure of a State tofulfil its obligations of prevention and punishment as
contemplated by ArticlesV, VI and VII; on the other hand, the responsibility of a
State for an act of genocide perpetrated by the State itself would be excluded from the
scope of the Convention.
The Court would observe that the refere nce in Article IX to ‘the responsibility
of a State for genocide or for any of the other acts enumerated in Article III’, does not
exclude any form of State responsibility.
Nor is the responsibility of a State for ac ts of its organs excluded by Article IV
of the Convention, which contemplates the commission of an act of genocide by
‘rulers’ or ‘public officials’.
33. In the light of the foregoing, the Court considers that it must reject the fifth
preliminary objection of Yugoslavia. It w ould moreover observe that it is sufficiently
apparent from the very terms of that objection that the Parties not only differ with
respect to the facts of the case, their imput ability and the applicability to them of the
provisions of the Genocide Convention, but are moreover in disagreement with respect
to the meaning and legal scope of several of those provisions, including ArticleIX.
For the Court, there is accordingly no doubt that there exists a dispute between them
relating to ‘the interpretation, application or fulfilment of the... Convention,
including the responsibility of a State for genocide...’.” ( I.C.J. Reports, 1996 ,
pp. 616-617, paras. 32 and 33.) - 14 -
16. With respect, this expression of opinion is of marked brevity and is contingent upon the
dismissal of the preliminary objection based upon the existence or otherwise of a dispute relating to
the interpretation of the Genocide Convention. The interpretation adopted in this provisional mode
by the Court is not buttressed by any reference to the substantial preparatory work of the
Convention.
17. In the circumstances, there is no reason of principle or consideration of common sense
indicating that the issue of interpretation is no longer open.
18. Accordingly, it is appropriate to exam ine the substantial foundations for the position
adopted in the joint declaration of Judges Shi and Vereshchetin in the preliminary objections phase.
And if I can be permitted to quote the relevant passages, Judges Shi and Vereschchetin said:
“We have voted in favour of paragraphs 1 (a), (c), 2 and 3 of the dispositif
because we are persuaded that ArticleIX of the Convention on the Prevention and
Punishment of the Crime of Genocide afford s an arguable legal basis for the Court’s
jurisdiction in this case. However, we regret that we are unable to vote for
paragraph 1 (b) as we are disquieted by the statement of the Court, in paragraph 32 of
the Judgment, that Article IX of the Genocide Convention ‘does not exclude any form
of State responsibility’. It is this disquiet that we wish briefly to explain.
The Convention on Genocide is essentially and primarily directed towards the
punishment of persons committing genocide or genocidal acts and the prevention of
the commission of such crimes by individuals. The travaux préparatoires show that it
was during the last stage of the elaboration of the Convention that, by a very slim
majority of 19 votes to 17 with 9 abstentions, the provision relating to the
responsibility of States for genocide or genocidal acts was included in the dispute
settlement clause of ArticleIX, without the concurrent introduction of necessary
modifications into other articles of the Convention.
As can be seen from the authoritative commentary to the Convention, published
immediately after its adoption, ‘there were many doubts as to the actual meaning’ of
the reference to the responsibilit y of States (Nehemiah Robinson, The Genocide
Convention. Its Origin and Interpretation , [New York,] 1949, p.42). As to the
creation of a separate civil remedy appli cable as between States, the same author
observes that ‘since the Convention does not specifically refer to reparation, the
parties to it did not undertake to have accep ted the Court’s compulsory jurisdiction in
this question’ (ibid., p. 43).
In substance, the Convention remains an instrument relating to the criminal
responsibility of individuals. The Part ies undertake to punish persons committing
genocide, ‘whether they are constitutionall y responsible rulers, public officials or
private individuals’, and to enact the necessar y legislation to this effect (Arts.IV
andV). Persons charged with genocide or genocidal acts are to be tried ‘by a
competent tribunal of the State in the territo ry of which the act was committed, or by
such international penal tribunal as may have jurisdiction...’ (Art.VI). Such a
tribunal was established (after the filing of the Application) specifically for the - 15 -
prosecution of persons responsible for ser ious violations of humanitarian law
committed in the territory of the former Yugoslavia since 1991.
The determination of the international community to bring individual
perpetrators of genocidal acts to justice, irrespec tive of their ethnicity or the position
they occupy, points to the most appropriate course of action.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Therefore, in our view, it might be argued that this Court is perhaps not the
proper venue for the adjudication of the comp laints which the Applicant has raised in
the current proceedings.
While we consider that ArticleIX of the Genocide Convention, to which both
the Applicant and the Respondent are parties, affords a basis for the jurisdiction of the
Court to the extent that the subject-matter of the dispute relates to ‘the interpretation,
application or fulfilment’ of the Convention, and having, for this reason, voted for this
Judgment, we nevertheless find ourselves obliged to express our concern over the
above-mentioned substantial el ements of this case.” ( I.C.J. Reports 1996(II) ,
pp. 631-632.)
19. This interpretation adopted by Judges Sh i and Vereshchetin is also preferred by
JudgeOda in his declaration ( I.C.J. Reports, 1996(II) , pp.625-629). In addition, this
interpretation is espoused by Judge Kreča in his dissenting opinion (ibid., pp.764-772).
20. The elements of this argument can be summarized as follows:
First, the Genocide Convention can only apply when the State concerned has territorial
jurisdiction or control in the areas in which th e breaches of the Convention are alleged to have
occurred. The key provisions of the Convention involve the duty of States “to prevent and to
punish the crime of genocide” (Art. I), the enactment of the necessary legislation to give effect to
the Convention (Art. V), and the trial of persons charged with genocide “by a competent tribunal of
the State in the territory of which the act was co mmitted” (Article VI). Madam President, it is my
submission that the respondent State did not have territorial jurisdiction or control, either for
enforcement purposes or for prescrip tion purposes, in the relevant areas in the period to which the
Application relates.
Second, the Genocide Convention does not provide for the responsibility of States for acts of
genocide as such. The duties prescribed by the Convention relate to “the prevention and
punishment of the crime of genocide” when this crime is committed by individuals: and the
provisions of Articles V and VI of the Convention, in our submission, make this abundantly clear. - 16 -
21. These two considerations jointly and sever ally preclude the existence of jurisdiction
ratione materiae in accordance with Article IX of the Genocide Convention.
22. Madam President, in the present case the pr ovisions of the Genocide Convention extend
to failures of a State to prevent or to punish acts of genocide committed within the confines of its
territorial jurisdiction or control.
23. These provisions do not extend to the responsibility of a Contracting Party as such for
acts of genocide but to responsibility for failure to prevent or to punish acts of genocide committed
by individuals within its territory, or by individuals otherwise within its control.
What, then is the correct interpretation of the Convention?
T2he. travaux involve a series of eight stages involving various bodies and groups of
experts. And I shall confine myself to the more significant phases of this elaborate process.
25. The genesis of the project to draft a convention on the prevention and punishment of
genocide is to be found in General Assembly resolution 96(I) adopted on 11December1946 in
which the Economic and Social Council was requested to undertake the necessary studies. The text
of the resolution can be seen in the Yearbook of the United Nations 1946-1947 (p. 254).
26. In response, the Council adopted resolution 47 (IV) of 28March1947 instructing the
Secretary-General:
“(a) to undertake, with the assistance of e xperts in the field of international and
criminal law, the necessary studies with a view to drawing up a draft convention in
accordance with the resolution of the General Assembly; and
(b) after consultation with the General Asse mbly Committee on the Development and
Codification of International Law and, if feasible, the Commission on Human
Rights and, after reference to all Member Governments for comments, to submit to
the next session of the Economic and So cial Council a draft convention on the
crime of genocide” (Yearbook of the United Nations 1947-1948, p. 595).
27. In accordance with this resolution the Secr etary-General prepared a draft convention for
the prevention and punishment of genocide (United Nations, doA c./AC.10/41,
A/AC.10/42/Rev.1). This draft, usually referred to as the Secretariat draft (doc.E/447), provided
the basis for the next stage of the project. - 17 -
28. In response to a further request from e General Assembly, the Economic and Social
Council eventually appointed an Ad Hoc Committee, composed of the representatives of seven
Members, to draft a convention (doc. E/734).
Th9e. Ad Hoc Committee met from 5 April to 10 May 1948; see Report of the Committee
and the Draft Convention drawn up by the Commi ttee (E/794, 24May1948, and E/794/Corr.1,
10 June 1948; Yearbook of the United Nations 1947-1948, pp. 597-599).
30. The draft convention adopted and reported to the Economic and Social Council is closely
related to the text of the Genocide Convention in its final form. In particular draft Articles V, VI,
and VII prefigure ArticlesIV, V and VI of the C onvention respectively. The draft Articles were
adopted as follows:
“A RTICLE V
Persons liable
Those committing genocide or any of the other acts enumerated in ArticleIV
shall be punished whether they are Heads of State, public officials or private
individuals.
A RTICLE VI
Domestic legislation
The High Contracting Parties undertake to enact the necessary legislation in
accordance with their constitutional procedures to give effect to the provisions of this
Convention.
A RTICLE VII
Jurisdiction
Persons charged with genocide or an y of the other acts enumerated in
Article IV shall be tried by a competent tribunal of the State in the territory of which
the act was committed or by a competent international tribunal.”
31. The debate in the Committee revealed a shared assumption that the criminal
responsibility provided for in Article V related exclusively to individuals. In relation to Article VII
all seven members of the Committee agreed to recognize the jurisdiction of the courts of the State
on the territory of which the offence was committed (doc. E/794, p. 29). - 18 -
32. In this context, Madam President, four members of the Committee voted against the
principle of universal jurisdiction. In the report they use the phrase “universal repression”. These
four votes included those of France, the United States and the USSR (ibid., pp. 32-33).
Discussions in the Economic and Social Council
33. After consideration in a plenary session of the Economic and Social Council
(26 August 1948) the Council decided in resolu tion 153 (VII) to transmit the draft convention and
the Report of the Ad Hoc Committee (E/794) to the Third Session of the General Assembly
(docs. E/SR.180, E/SR.201, E/SR.202, E/SR.218 and E/SR.219).
34. At its Third Session the General Assembly referred the Report of the Ad Hoc Committee
to the Sixth Committee.
Discussions in the Sixth Committee, 29 October-3 December 1948
35. The Sixth Committee spent 51 meetings di scussing the draft convention and a number of
amendments were adopted (see Summary Records of the Sixth Committee,
29 October-3 December 1948).
36. The Report of the Sixth Committee (doc. A/760 and Corr.2) includes the text of the draft
convention as approved by the Committee and recommended for adoption by the General
Assembly. This text is identical with that of the Convention as approved by the General Assembly,
given that amendments put forward at the 178th and 179th plenary meetings were rejected.
37. The key provisions as adopted by the Sixth Committee are as follows:
“Article IV
Persons committing genocide or any of the other acts enumerated in Article III
shall be punished, whether they are constituti onally responsible rulers, public officials
or private individuals.
Article V
The Contracting Parties undertake to enact, in accordance with their respective
Constitutions, the necessary legislation to give effect to the provisions of the present
Convention and, in particular, to provide effective penalties for persons guilty of
genocide or of any of the other acts enumerated in Article III. - 19 -
Article VI
Persons charged with genocide or any of the other acts enumerated in Article III
shall be tried by a competent tribunal of the State in the territory of which the act was
committed, or by such international pena l tribunal as may have jurisdiction with
respect to those Contracting Parties which shall have accepted its jurisdiction.”
38. The discussions in the Sixth Committee confirmed that the responsibility of the
Contracting Parties was related to the duties to prevent and to punish acts of genocide committed
by individuals within the territory of the respective Contracting Party.
39. Thus there was no question of direct responsibility of the State for acts of genocide.
40. Madam President, this analysis is perf ectly compatible with ArticleIX of the
Convention, which provides:
“Disputes between the Contracting Parties relating to the interpretation,
application or fulfilment of the present Convention, including those relating to the
responsibility of a State for genocide or fo r any of the other acts enumerated in
article III, shall be submitted to the Interna tional Court of Justice at the request of any
of the parties to the dispute.”
41. Now, of course, this provision includes disputes “relating to the responsibility of a State
for genocide”. Those words appear in Article IX: no doubt. But of course the wording has to be
construed with the other provisions of the Convention. It is individuals who are criminally liable,
in accordance with the provisions of domestic law as applied by domestic courts.
42. That, Madam President, is why the Convention is entitled: “Convention on the
Prevention and Punishment of the Crime of Genocide”. The duties to mobilize the domestic law of
Contracting States, and to prevent and punish acts of genocide committed by individuals, are
inevitably related to the exercise of legislative a nd enforcement jurisdiction within State territory,
or areas under the control of the State. The principles of State responsibility require an ability to
exercise control over the area concerned.
43. And this responsibility of the State to prevent and punish is a “civil” and not a “criminal”
responsibility. As Nehemiah Robinson points out in his detailed study, this was the opinion of the
majority of the Sixth Committee. I re fer to his monograph at pages101 to 102 ( The Genocide
Convention: A Commentary, New York, 1960).
44. This was expressly recognized by the Un ited Kingdom representative, Mr.Fitzmaurice,
as he then was. The United Kingdom and Belgium were the authors of the joint amendment which - 20 -
gave rise to the reference “dis putes relating to the responsibility of a State for any of the acts
enumerated in Articles II and IV”, as the text was at that stage.
45. It is clear that the Sixth Committee did not regard this phrasing as connoting a criminal
responsibility of the State. The United Kingdom representative stated that the responsibility
envisaged in the joint amendment “was civil res ponsibility, not criminal responsibility” (General
Assembly, Third Session, Part I, Sixth Committee, 103rd Meeting, 12November 1948,
doc.A/C.6/SR.103, p.440; and see also Fitzmaurice, 104th Meeting, ibid., p.444; and 105th
Meeting, ibid., p. 460).
46. This was also the position of Charl esChaumont, the French representative at the
103rd Meeting (ibid., p. 431). In the words of the Summary Record:
“the representative of France was in no way opposed to the principle of the
international responsibility of States as long as it was a matter of civil, and not
criminal responsibility”.
Similar views were expressed by Mr.Spiropoulos of Greece (103rd Meeting, ibid., pp.432-33),
Mr.Demesmin of Haiti ( ibid., p.436), and Mr.Ingles of the Philippines (104thMeeting, ibid.,
p. 442).
47. To this account must be adde d some reference to the debate on Article V of the draft
convention during the 93rd Meeting of the Sixth Comm ittee. This was the draft article referring to
the categories of individuals who would bear criminal responsibility.
48. The Summary Record of the 93rd Meeting reports the opinion of the United States
representative, as follows:
“Mr. Maktos (United States of America) wished to point out, in his capacity as
chairman of the Ad Hoc Committee on Genocide, that it was not the French text of
Article V which had been taken as the basis when that article had been voted upon. At
that time the Committee had thought the expr ession ‘heads of State’ was nearer to the
French word gouvernants than the word ‘rulers’, which for example, would not
include the President of the United States of America.”
And then we come to the important passage for present purposes:
“Mr.Maktos did not share the opinion of the United Kingdom representative
that genocide could be committed by juridical entities, such as the State or the
Government; in reality, genocide was al ways committed by individuals which was
one of the aims of the convention on genocide to organize the punishment of that
crime. It was necessary to punish perpetrators of acts of genocide, and not to envisage
measures such as the cessation of imputed acts or payment of compensation.”
(Doc. A/C.6/S.R.93, pp. 319-320.) - 21 -
As I have already pointed out, Fitzmaurice, th e United Kingdom representative, subsequently
explained that the responsibility envisaged was “civil responsibility, not criminal responsibility”.
49. In the first round of these proceedings, Professor Franck failed to clarify the difficulties
created by the change introduced at a late stage in Article IX of the Convention. In particular, he
provided no indication of the outcome of the re levant concept of State responsibility in the
remedial sphere. Finally, my learned opponent ap pears to assume that th e result of the drafting
change was to endow the Court with a criminal jurisdiction and not a jurisdiction in respect of
disputes between parties to the Genocide Convention (CR 2006/5, pp. 10-13). In the final analysis,
the content of Article IX is not consistent with the substantive provisions of the Convention. And,
given that ArticleIX is devoted to the machiner y of settlement of disputes, it surely cannot be
predominant.
50. So much for the travaux préparatoires, and I shall move on to examine the treatment of
the question of interpretation in the doctrine.
Interpretation in the doctrine
51. The analysis of the travaux I have offered to the Court is confirmed by the
preponderance of authoritative opinion in the literature, and this can be divided into two categories.
The first consists of doctrine which is more or less contemporaneous w ith the adoption of the
Genocide Convention on 9 December 1948.
Contemporaneous doctrine
52. One of the first commentaries to appear was Anonymous in the Yale Law Journal ,
Volume58, 1948-1949 (pp.1142-1160). This “C ommentary” emphasizes th at: “Jurisdiction of
the offence would be confined to a territorial basis, with States extraditing fleeing offenders in
accordance with their laws and treaties currently in force.” (P. 1147.)
53. Josef Kunz, who was an influential commentator of that period, writing in the American
Journal focused upon what he called “the old-fashioned and traditional” aspects of the Convention.
In the words of Josef Kunz:
“The Convention gives criminal jurisdiction under its domestic law to the State
in the territory of which the act was committed; in addition, as the Sixth Committee - 22 -
stated, Article VI ‘does not affect the right of any State to bring to trial before its own
tribunals any of its nationals for acts committed outside of the State’.
The legal situation is, therefore, the following one. Each contracting party is
bound to try in its domestic courts, under domestic law enacted in carrying out the
Convention, any private individual, public official or constitutionally responsible ruler
whether a citizen or an alien, for any of the crimes of Articles II and III, committed in
the territory of this State, whether against aliens or citizens; every contracting party is,
further, entitled to try its own nationals for the same crimes committed abroad.”
(American Journal, Vol. 43 (1949), p. 745.)
54. Jean Graven, in his course at the Hague Academy on “Les Crimes contre l’humanité”,
analysed the debate in the Sixth Committee on the nature of State responsibility envisaged as in the
draft convention. In his opinion, the possibility of a criminal responsibility of the State was
excluded (RCADI, 1950, Vol. I).
55. Writing in the American Journal in 1951, Judge Manley Hudson produced a detailed
analysis of the provisions of Article IX of th e Convention, the compromissory clause. In his
words:
“Insofar as this article provides for the settlement of disputes relating to the
interpretation, application or fulfilment (in French, exécution) of the Convention, it is
a stock provision not substantially unlike that found in many multipartite instruments.
The article goes further, however, in ‘including’ among such disputes ‘those
relating to the responsibility of a State for genocide or any of the other acts
enumerated in Article III’.
As no other provision in the Convention deals expressly with State
responsibility, it is difficult to see how a dispute concerning such responsibility can be
included among disputes relating to the interp retation or application or fulfilment of
the Convention. In view of the undertaki ng of the parties in Article I to prevent
genocide, it is conceivable that a dispute as to State responsibility may be a dispute as
to fulfilment of the Convention.
Yet read as a whole, the Convention re fers to the punishment of individuals
only; the punishment of a State is not adumbrated in any way, and it is excluded from
ArticleV by which the parties undertake to enact punitive legislation. Hence the
‘responsibility of a State’ referred to in Ar ticle IX is not criminal liability. In the
course of the drafting of the Convention by the Sixth Committee of the General
Assembly, the Delegation of the United Kingdom withdrew its proposal to impose
criminal responsibility on States (United Na tions doc.A/C.6/236) and supported the
imposition of civil responsibility. (General Assembly, 3rd Sess. Pt. I, Official
Records, Sixth Committee, pp. 428, 440.) Instead it is limited (that is the Convention)
to the civil responsibility of a State, and such responsibility is governed, not by any
provisions of the Convention, but by general international law.” ( American Journal,
Vol. 45 (1951), p. 3334.) - 23 -
56. And that passage which I have offered to the Court is being reproduced in the important
work of reference, the volumes of the Digest of International Law edited by
Marjorie M. Whiteman, in Volume 11, 1968 (p. 857).
Subsequent doctrine
57. Now I have given what I hope is a suffi ciently substantial sample of contemporary
literature to the Court. I now want, quite briefly, to look at some of the more important items of
subsequent doctrine on the Convention. And I th ink the doctrine which has appeared subsequently
amply confirms the analysis adopted in the commentaries contemporaneous with the Convention.
58. The first item is the publication I have already referred to by Nehemiah Robinson, The
Genocide Convention: A Commentary , which was published by the World Jewish Congress in
New York in 1960. This is a meticulous a nd scholarly account of the preparation of the
Convention together with an analysis of its pr ovisions. In the examination of ArticleIX,
Dr.Robinson describes the fate of the original Br itish proposal for the criminal responsibility of
States and the appearance of the joint Anglo-Be lgian proposal “which was regarded by the
members of the Committee as involving civil responsibility” ⎯ I refer to pages99 to 106 of the
study by Robinson.
59. The second item of subsequent doctrin e is the substantial essay contributed by
Professor Malcolm Shaw to the Essays in Honour of Shabtai Rosenne , published in 1989
(pp. 797-820). In his view: “The Convention does not directly refer to State responsibility.”
60. In moving to the completion of this section of my argument, I would wish to emphasize
that the question of the true interpretation of the Convention is by no means an exclusively
preliminary matter but forms a necessary part of the merits of this case.
61. In the Judgment on preliminary objections th e only issue the Court had to deal with in
this context was whether or not there was a dispute concerning the interpretation of the Convention.
62. In conclusion on this question, it is nece ssary to examine the practical and remedial
consequences of the application of the one or the other of the two candidate interpretations. - 24 -
C. T HE TWO INTERPRETATIONS OF THE G ENOCIDE C ONVENTION : WHAT ARE THE
PRACTICAL CONSEQUENCES OF THEIR APPLICATION ?
63. First, the view of State responsibilit y according to which the State bears direct
responsibility for genocide: what are the practical consequences of such a view?
(i) First, the condition of intention is that the intention must be that of the State itself.
(ii) Second, imputability in accordance with th e principles of State responsibility: here the
imputability would depend on the fulfilment of both of the following conditions:
(1) control of the territory concerned.
(2)control of particular operations. An element which is being, broadly speaking,
ignored by my colleagues on the other side of the Bar.
(iii) According to this interpretation the usual remedies would be available and, in particular,
reparation. However, as I have pointed out, this view is not supported by the travaux
préparatoires of the Convention.
64. Then we come to the other interpretation ⎯ if you will, the narrow interpretation
according to which the Genocide Convention provid es jurisdiction only for a declaratory judgment
relating to violations of the duty to prevent and punish the crime of genocide. This of course is the
view of Judges Shi and Vereshchetin. The practical consequences here would be:
(i) First, the condition of intention must apply and it isnecessary condition that the State
officials knew that acts of genocide had been, or would be, committed.
(ii) Second, there must be control or the mean s of control over the personnel involved: this is
a necessary condition.
(iii) And last, the remedy would be confined to that of a declaratory judgmen⎯ as indicated
in the declaration of Judges Shi and Vereshchetin.
65. As I draw near to my conclusion on th e nature of responsibility, two issues call for
consideration. In the first place, it is significant to find that the Convention makes no provision for
remedies relating to the case of direct responsibility. And there is no reason to assume that such a
question would be left to be dealt with by inference either in 1949 or now.
66. The second issue provides the underpinning for the first. In 1949 the legal horizon did
not include the criminal responsibility of the State concerned. There is no State practice to support
this hypothesis and the question of criminal responsibility has been carefully left aside by the - 25 -
International Law Commission in its work on Stat e responsibility. Thus, Madam President, the
criminal responsibility of the State is still absent from the legal horizon.
67. Against this background, it is not surprising to find that the doctrine as a whole does not
recognize the criminal responsibility of the State. Typical is the treatment in the standard
francophone authority by Charles Rousseau. In the substantial examination of State responsibility
in Volume5 of the treatise, published in 1983, no reference is made to the possible existence of
criminal responsibility; I refer, in particular, to paragraphs 210 to 245. The standard Anglophone
authorities adopted the same policy: one can refer, for example, to O’Connell’s two-volume work,
International Law, 2nd edition in 1970.
68. In the period immediately after the c onclusion of the Genocide Convention in 1949,
several authoritative writers adopted positions excl uding the criminal responsibility of the State.
The pertinent citations are as follows:
First, Hersch Lauterpacht, in his monograph International Law and Human Rights, published
in 1950 (p. 44). Hersch Lauterpacht reports the Genocide Convention as follows:
“The Convention on the Prevention and Punishment of the Crime of Genocide
approved by the General Assembly in 1948 lays down that genocide, whether
committed in time of peace or war, is a crime under international law which the
Parties undertake to prevent and to punish and that the persons responsible for that
crime shall be punished ‘whether they are constitutionally responsible rulers, public
officials or private individuals’. The Convention thus subjected individuals to the
direct obligation and sanction of international law.”
Second, writing in 1951 ProfessorManley Hudson refers to the provisions of ArticleIX of
the Genocide Convention and offers the following conclusions: “Hence the ‘responsibility of a
State’ referred to in Article IX is not criminal liability.”
In addition Hudson observes that:
“In its ratification of the Convention th e Republic of the Philippines stated that
it did not consider Article IX ‘to extend the concept of State responsibility beyond that
recognized by the generally accepted principles of international law’. This
interpretation is so imperative that the st atement of it would seem to have resulted
from unnecessary precaution.” (Hudson, “The Twenty-Ninth Year of the World
Court”, 45 American Journal of International Law (1951) 1, 33-34.)
And then in his article in the American Journal, in a footnote, Hudson added:
“In presenting the Convention for the a dvice and consent of the Senate on
June16, 1949, the President of the United States endorsed a recommendation by the
Acting Secretary of State that such action be taken ‘with the understanding that - 26 -
article IX shall be understood in the traditi onal sense of responsibility to another state
for injuries sustained by nationals of the complaining state in violation of principles of
international law, and shall not be unders tood as meaning that a state can be held
liable in damages for injuries inflicted by it on its own nationals’. This understanding
was recommended by a subcommittee of th e Senate Committee on Foreign Relations
on May 23, 1950. In view of the conclusi on stated above, no statement of such an
understanding would seem to be needed.”. ( Ibid., 34.) (These statements are
reproduced in Whiteman, Digest, Vol. 11, pp. 857-58.)
69. In general the more modern authorities do not recognize a concept of criminal
responsibility of the State. Some authorities simply make tentative reference to the now
superseded draft Articles of the ILC. This approach can be seen in Karl Zemanek’s contribution to
the Rudolf Bernhardt Encyclopaedia (Vol.4, p.226). The general opinion was that Article19 of
the 1996 draft Articles represented an anomalous construct and the commentary prepared in 1976
shows a marked degree of hesitancy in presenting Article 19 as positive law.
70. Let us look at the original text of Article 19, because this was the best offer at that time
of a thesis involving criminal responsibility.
“Article 19. “International crimes and international delicts”
1. An act of a State which constitutes a br each of an international obligation is an
internationally wrongful act, regardless of the subject matter of the obligation
breached.
2. An internationally wrongful act which results from the breach by a State of an
international obligation so essential for the protection of fundamental interests of
the international community that its br each is recognized as a crime by that
community as a whole, constitutes an international crime.
3. Subject to paragraph 2, and on the basis of the rules of international law in force,
an international crime may result, inter alia, from:
( a) a serious breach of an international obligation of essential importance for the
maintenance of international peace a nd security, such as that prohibiting
aggression;
( b) a serious breach of an international obligation of essential importance for
safeguarding the right of self-determination of peoples, such as that
prohibiting the establishment or maintenance by force of colonial
domination;
( c)a serious breach on a widespread scal e of an international obligation of
essential importance for safeguarding the human being, such as those
prohibiting slavery, genocide and apartheid;
(d) a serious breach of an international obligation of essential importance for the
safeguarding and preservation of the human environment, such as those
prohibiting massive pollution of the atmosphere or of the seas.” ( Yearbook
of the Commission, 1996, Vol. II (Part Two), pp. 95-122.) - 27 -
71. In any event, Article 19 was, as a version of criminal responsibility, a sort of Potemkin
village. It was much criticized both within the Commission and elsewhere. The criticism
emanated from the following authorities.
1. Krystyna Marek, writing the Revue Belge, 1978to1979, (Vol.14, p.462). Marek states that
the ILC
“itself bears witness to the complete absence of any penal elements in either the theory
or practice of international responsibility. The reader can therefore be referred to it for
all the abundant material which directly contradicts its main proposition . . .”
2. There is criticism by Pierre-Marie Dupuy in the Revue Générale in 1980 ( RGDIP, Vol.84,
1980, pp. 468 et seq.).
3. Max Gounelle, writing in the Mélanges offerts à Paul Reuter, published in 1981 (Paris, 1981,
pp. 315-326).
4. Manfred Mohr, in Spinedi and Simma, United Nations Codification of State Responsibility,
published in 1987 (New York, 1987, pp. 139-141).
5. Bruno Simma, as he then was, Hague Academy lectures ( RCADI, 1994, Vol. 250 (1994, VI),
pp. 301-318).
6. Robert Rosenstock, in Festschrift f űr Karl Zemanek, published in 1994 (Berlin, 1994,
pp. 319-334).
72. Rosenstock, who is a realist, points out that: “The complete absence of state practice
provides no basis for regarding the notion as lex lata . . .” (P. 327.)
73. And, Madam President, Members of the Court, it is a striking fact that even the few
partisans of the notion of State crime accept that it does not have the character of lex lata. This is
the position of Jimenezde Aréchaga and Tanzi, in the Unesco Handbook edited by former
President Bedjaoui, International Law: Prospects and Achievements, published in 1994 (Unesco,
1994, pp. 356-58).
74. The change of policy in the International Law Commission was very carefully
considered and is explained by the Special Ra pporteur in his Introduction to the draft Articles
published in book form in 2002 (pp. 16-20). Without going into great detail, it can be reported that
Professor Crawford demonstrates, and demonstrat es very effectively, that the provisions of - 28 -
Article 19 of the former draft Articles did not represent a viable régime relating to State crimes, and
certainly did not represent positive law.
75. In his Concluding Remarks on the debate concerning Article 19, the Special Rapporteur
summed up by making five major points. And if I can just report the fifth point:
“general agreement had emerged between the two groups of members who had
expressed diverse views in the discussion, that Article19 did not envisage a distinct
penal category, and that at the current stag e of the development of international law
the notion of ‘State crimes’ in the penal sen se was hardly recognised. Both sides had
endorsed the proposal, which the Commission had itself approved in 1976, namely
that State responsibility was in some sense a unified field, notwithstanding the fact
that distinctions were made within it be tween the obligations of interest to the
international community as a whole and obligations of interest to one or several States.
The Special Rapporteur retained the firm conviction that, in the future, the
international system might develop a genuine form of corporate criminal liability for
entities, including States. Most members of the Commission had refused to envisage
that hypothesis and had spoken out in favour of a two-track approach which entailed
developing the notion of individual criminal liability through the mechanism of ad hoc
tribunals and the International Criminal C ourt, acting in complementarity with State
courts, on the one hand, and developing within the field of State responsibility the
notion of responsibility for breaches of the most serious norms of concern to the
international community as a whole, on the other.” (Report of the International Law
Commission on the Work of its Fiftieth Session, 1998, United Nations, Official
Records of the General Assembly, F ifty-third Session, Supplement No.10 (A/53/10),
p. 146, para. 329.)
76. Madam President, it is also necessary to emphasize the absence of agreement among
States on the viability of the concept of State crim e. The marked divergence of opinion has been
chronicled by Dr.Jorgensen in her monograph The Responsibility of States for International
Crimes, published in 2000. Dr.Jorgensen is evidently sympathetic to the concept of State crime
and thus her analysis of the opinions of States does not, if I may say so, err on the side of
scepticism.
77. Dr. Jorgensen describes the expression of views in the Sixth Committee in 1976. In her
words:
“Upon its adoption by the ILC, Article19 met with a generally favourable
response from developing and East European states in the Sixth Committee of the
General Assembly. India felt that the dis tinction between international crimes and
delicts was bound to promote internati onal solidarity because it recognized the
fundamental interests of the international community as a whole. Article 19 was also
a ‘matter of the greatest importance’, for th e Kenyan delegation. The Soviet Union
considered that the distinction made in Article19 between international crimes and
delicts was of ‘fundamental importance’, a nd the fact that the members of the ILC
adopted its text unanimously on first reading was particularly significant. - 29 -
In contrast, the reaction of Western states was more cautious, and most spoke
against the idea of the criminal responsibility of states. France recognized that Draft
Article 19 was one of the most delicate but important articles of the whole study, and
its main concern was the fact that this article, with the exception of paragraph1,
contained solely rules of progressive development. In its view [the French view] the
ILC had espoused a trend which was far fro m constituting an established or generally
recognized rule, and which wa s consequently premature. The UK thought that the
most crucial issue was whether contem porary international law recognized a
distinction between different types of international wrongful acts on the basis of the
subject matter of the international obligation breached. The UK delegation stated:
‘Although there was growing eviden ce of the existence of such a
distinction between civil and criminal responsibility based on the
importance attached by the international community as a whole to certain
international obligations of a fundamental nature, the difficulty lay in
defining such international obligations and assessing the consequences of
such a distinction.’
The US could find no compelling argument for the inclusion of the concept of
criminal responsibility in the ILC’s Draft at the present stage of development of
international legal institutions. The US did not feel that the perception that some acts
affected a wider class than others compelle d the conclusion that an international law
of the criminal responsibility of states must be created. What it supported was the
need for an analysis of ways to measure damages to the wider class, and if the ILC
were determined to ensure that particul arly grave breaches gave rise to a level of
responsibility which exceeded restitutio ad integrum, a mention of exemplary
damages would have been significant. Israel agreed with the doubts expressed on the
advisability of retaining Draft Article 19, a nd warned that a document concerned with
the objective criteria of state responsibility should not be injected with a political
element and be allowed to reflect the de ficiencies of the UN system. There was
therefore a significant divergence of state opinion concerning the desirability of
Article19, with most Western states doubting the existence of the concept of state
criminality as part of positive international law.” (Jorgensen, pp. 254-256.)
78. Dr.Jorgensen then examines the views of States expressed in the Sixth Committee,
20 years later, in 1996. In her words:
“It is valuable to compare the views of states in 1976 with their current views.
In the Sixth Committee, at the fifty-first session of the General Assembly in 1996, the
states of the Southern African Developm ent Community remained in favour of the
retention of the distinction between intern ational crimes and delicts. Japan merely
stated that it felt ‘further debate [was] necessary in such areas as the treatment of
international crimes’ without questioning th e existence of a category as such. Ireland
did not reject outright the concept of criminal responsibility of states but argued:
‘There is not always a neat f it between domestic law concepts and
those of international law, and this is clearly one of those cases where the
proposed transposition of domestic law concepts into the international
law field requires careful thought and reflection.’
Ireland felt that the concept was conceiva ble as a theoretical construct, it being
possible to give a general definition of an international crime and to identify some
examples; however, its usefulness was queri ed. Germany maintained the position it
adopted when the distinction between crimes and delicts was first introduced, namely - 30 -
‘one of considerable scepticism regarding both the legal feasibility and the political
desirability of the concept, combined with a cautious attitude of “wait and see” until
not only draft article 19 of Part 1 but the entire system of legal consequences of crimes
would be on the table’, and [Germany] sugg ested putting ‘the genie of international
crimes back into the bottle from where it w as released twenty years ago’. The French
delegation did not contest the existence of internationally unlawful acts which were
more serious than others, but felt that the distinction was still too vague. The US and
the UK were typically dismissive of th e concept. Thus US had ‘fundamental
concerns’ about the very concept of state crimes. This concept does not find support
in state practice. It confuses, rather than clar ifies, the analysis of particular situations.
Similarly, the UK argued that ‘the concept of “state crime” has not gained the broad
international acceptance that would be require d for the introduction into the law of a
new concept with such wide-ranging consequences’. [This in 1996.] The concept was
found to be ‘inchoate and lacking the moda lities of implementation’. In essence, the
UK felt that the concept lacked ‘an adequa te juridical basis and should not be
retained’.” (Jorgensen, pp. 256-257.)
79. The divergence of opinion continued in subsequent discussion in the Sixth Committee.
80. Overall, the evidence from the Sixth Comm ittee debates demonstrates that there is no
consistent opinion of States concerning the existence or content of the very concept of the criminal
responsibility of the State.
81. Madam President, these propositions must now be placed within the context of treaty
interpretation. The legal principles are set forth in the 1992 edition of Oppenheim’s International
Law, edited by Jennings and Watts. They are as follows:
“A treaty is to be interpreted in the ligh t of general rules of international law in
force at the time of its conclusion ⎯ the so-called inter-temporal law. This follows
from the general principle that a juridical fact must be appreciated in the light of the
law contemporary with it. Similarly, a treaty’s terms are normally to be interpreted on
the basis of their meaning at the time the treaty was concluded, and in the light of
circumstances then prevailing. Nevertheless, in some respects the interpretation of a
treaty’s provisions cannot be divorced from deve lopments in the law subsequent to its
adoption. Thus, even though a treaty when concluded did not conflict with any rule of
jus cogens, it will become void if there subsequently emerges a new rule of jus cogens
with which it is in conflict. Similarly, the concepts embodied in a treaty may be not
static but evolutionary, in which case their ‘interpretation cannot remain unaffected by
the subsequent development of law... Mo reover, an international instrument has to
be interpreted and applied within the framewo rk of the entire legal system prevailing
at the time of the interpretation.’ Wh ile these considerations may in certain
circumstances go some way towards negating the application of the inter-temporal
law, that law will still, even in such circumstances, provide at least the starting-point
for arriving at the proper interpretation of the treaty.” (Oppenheim, pp. 1281-1282.)
82. And in my submission, whether these pr inciples are applied according to the strict
principle of inter-temporal law ⎯ that is, the position in 1949 ⎯ or according to the evolutionary
principle ⎯ that is, the position when this Application was filed in 1993 ⎯ the legal result remains - 31 -
the same. There can be no infe rence that the Genocide Convention provides a vehicle for the
imposition of the criminal responsibility of the State.
Madam President, if it were convenient, that would be a good place to take a break?
The PRESIDENT: Yes, Mr. Brownlie, we will resume at 11.30.
Mr. BROWNLIE: Thank you very much.
The Court adjourned from 11.20 to 11.30 a.m.
The PRESIDENT: Please be seated. Professor Brownlie.
Mr. BROWNLIE: Thank you.
D. BREACHES OF THE G ENOCIDE C ONVENTION :THE CRITERIA OF STATE RESPONSIBILITY
I. The applicable law
83. I shall now move to the applicable criteri a of State responsibility and it is clear that the
principles of general international law governing th e responsibility of States are “applicable in the
relations between the parties” in accordance with the Vienna Convention on the Law of Treaties.
II. The question of attribution of acts to the former Yugoslavia
84. The position of the Government of Serbia and Montenegro is that the acts alleged to
constitute genocide are not attributable to the vernment or its predecessor, and the relevant
circumstances are elaborated in Chapters 2, 3 and 5 of the Counter-Memorial.
85. Three distinct elements call for examination:
(a) First, the withdrawal from the territory of Bosnia-Herzegovina by the JNA, the Yugoslav army,
beginning in March 1992.
(b)Second, the appearance of the Republika Srpska as an independent State in the period
beginning 28 February 1992. On this date the Assembly of the Serb people in Bosnia adopted
the Constitution of the Bosnian Serb Republic.
(c)Third, the absence of control of the Republik a Srpska by the Government of the then
Yugoslavia. - 32 -
These three elements will now be analysed.
(a) Loss of control by the JNA in March 1992
86. As the Court has found in its Judgment on preliminary objections, Bosnia and
Herzegovina became inde pendent on 6March1992 ( I.C.J. Reports, 1996 (II) , p. 612, para. 23).
This event, and the disintegration of the former Socialist Federal Republic of Yugoslavia, produced
a critical situation in which the Yugoslav Nationa l Army (JNA) found itself, without warning, a
visitor on the territory of hostile secessionist entiti es. No orderly transition was agreed and the
public order situation was exacerbated by the appearance of armed militias. A three-sided civil war
emerged within Bosnia and on 12 and 23April1992 the leaders of the three sides signed two
successive ceasefire agreements. The three sides we re the Muslims, the Croats and the Serbs of
Bosnia.
87. In face of these rapid developments, involving the premature recognition of new political
entities, the Government in Belgrade decided th at the JNA should withdraw from Bosnia. Once
that decision had been taken, it was carried into effect as expeditiously as circumstances allowed.
There is ample evidence that the Yugoslav Gove rnment made a significant effort to arrange a
peaceful transition and this is confirmed by th e contents of the Secretary-General’s report on
30 May 1992.
88. On 27 April 1992 the new Federal Republic of Yugoslavia was proclaimed consisting of
Serbia and Montenegro. On 4 May 1992 the Presi dency of the new State adopted a decision to the
effect that the Yugoslav army should withdraw fro m Bosnia and that all citizens of the Federal
Republic serving in the Yugoslav army within Bosnia should return to the territory of the Federal
Republic by 19May. It was also decided that citizens of Bosnia and Herzegovina serving in the
Yugoslav army should remain on the territory of Bosnia. And it should be noted that 80 per cent of
such forces were of Serbian origin. The evacuation of Bosnia was completed on 19 May.
89. The Bosnian Reply constantly distorts the actual circumstances. Given the political
reordering of the region then under way, JNA personnel who were associated with the different
ethnic groups within Bosnia remained behind and joined the newly formed territorial armed forces. - 33 -
90. The evidence available confirms that the JNA was no longer in general control of Bosnia
in March1992, when Muslim and Croat military formations commenced attacks on JNA units in
Bosnia and Herzegovina (Counter-Memorial, pp. 251-258; Rejoinder, pp. 532-562).
(b) The appearance of the Republika Srpska as an independent State
91. As the Counter-Memorial has shown, the f oundations of an independent Serb State were
laid on 28February1992 (Counter-Memorial, pp.12 2-125, paras.2.4.1-2.4.1.15; Rejoinder,
pp.567-590). Whether or not the new State wa s recognized, it satisfied the legal conditions of
statehood and the withholding of recognition was based on political rather than legal
considerations.
(c) The absence of control of Republika Srpska by the Government of Yugoslavia
92. In any event, in the context of attribution, the precise legal status of the Republika Srpska
is not decisive. What is decisive is that, commencing in early March1992, significant areas of
Bosnia were under the control of the armed forc es of the Republika Srpska and not under the
control of the JNA. As a matter of final lega l analysis, it does not matter whether the Republika
Srpska constituted a State or a State in statu nascendi. The Republika Srpska had its own armed
forces and was not subordinate to Yugoslavia.
93. I shall in due course introduce further evidence of the absence of control of the
Republika Srpska by the Government of Yugoslavia. However, at this juncture in the argument it
is necessary to refer to the relevant criteria of State responsibility.
III. The criteria of State responsibility
94. The leading authority is the Military and Paramilitary Activities case, in which the Court,
in a majority Judgment of 14 judges, applied the test of effective control. And if I can read the key
passages from the Judgment carefully:
“What the Court has to determine at this point is whether or not the relationship
of the contras to the United States Government was so much one of dependence on
the one side and control on the other that it would be right to equate the contras, for
legal purposes, with an organ of the United States Government, or as acting on behalf
of that Government. Here it is relevant to note that in May 1983 the assessment of the
Intelligence Committee, in the Report referred to in paragraph 95 above, was that the
Contras ‘constitute[d] an independent force’ and that the ‘only element of control that - 34 -
could be exercised by the United States’ w as ‘cessation of aid’. Paradoxically this
assessment serves to underline, a contrario, the potential for control inherent in the
degree of the contras’ dependence on aid. Yet despite the heavy subsidies and other
support provided to them by the United States, there is no clear evidence of the United
States having actually exercised such a degree of control in all fields as to justify
treating the contras as acting on its behalf .” (I.C.J. Reports 1986 , p. 62, para. 109.)
(Emphasis added.)
“So far as the potential control constitut ed by the possibility of cessation of
United States military aid is concerned, it may be noted that after 1 October 1984 such
aid was no longer authorized, though the shar ing of intelligence, and the provision of
‘humanitarian assistance’ as defined in the above-cited legislation (paragraph 97) may
continue. Yet, according to Nicaragua’s own case, and according to press reports,
contra activity has continued. In sum, the evidence available to the Court indicates
that the various forms of assistance provided to the contras . . . have been crucial to
the pursuit of their activities, but is insu fficient to demonstrate their complete
dependence on United States aid. On the other hand, it indicates that in the initial
years of United States assistance the contra force was so dependent. However,
whether the United States Government at a ny stage devised the strategy and directed
the tactics of the contras depends on the extent to which the United States made use of
the potential for control inherent in that de pendence. The Court already indicated that
it has insufficient evidence to reach a finding on this point. It is a fortiori unable to
determine that the contra force may be equated for lega l purposes with the forces of
the United States. This conclusion, however, does not . . . suffice to resolve the entire
question of the responsibility incurred by the United States through its assistance to
the contras. (Ibid., pp. 62-63, para. 110.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
115. The Court has taken the view (paragraph 110 above) that United States
participation, even if preponderant or decisi ve, in the financing, organizing, training,
supplying and equipping of the contras, the selection of its military or paramilitary
targets, and the planning of the whole of its operation, is still insufficient in itself, on
the basis of the evidence in the possession of the Court, fo r the purpose of attributing
to the United States the acts committed by the contras in the course of their military or
paramilitary operations in Nicaragua. All the forms of United States participation
mentioned above, and even the general cont rol by the respondent State over a force
with a high degree of dependency on it, would not in themselves mean, without further
evidence, that the United St ates directed or enforced the perpetration of the acts
contrary to human rights and humanitarian la w alleged by the applicant State. Such
acts could well be committed by members of the contras without the control of the
United States. For this conduct to give rise to legal responsibility of the United States,
it would in principle have to be proved that that State had effective control of the
military or paramilitary operations in the course of which the alleged violations were
committed.
116. The Court does not consider that th e assistance given by the United States
to the contras warrants the conclusion that these forces are subject to the United States
to such an extent that any acts they have committed are imputable to that State. It
takes the view that the contras remain responsible for their acts, and that the United
States is not responsible for the acts of the contras, but for its own conduct vis-à-vis
Nicaragua, including conduct related to the acts of the contras.’” ( Ibid., pp. 64-65.)
(Emphasis added.) - 35 -
95. Madam President, there is no reason to doubt that the Nicaragua Judgment represents the
orthodox and unexceptionable application of genera l international law. When the International
Law Commission completed its work on State responsibility neither the Special Rapporteur nor the
Commission as a whole questioned the approach of the Court.
96. The relevant provision in the Commission’ s Articles on State Responsibility is Article 8
as follows:
“Conduct directed or controlled by a State
The conduct of a person or group or persons shall be considered an act of a state
under international law if the person or gr oup of persons is in fact acting on the
instructions of, or under the direction or control of, that State in carrying out the
conduct.”
97. The Commission’s Commentary makes these clarifications in paragraph 7:
“It is clear then that a State may, either by specific directions or by exercising
control over a group, in effect assume res ponsibility for their conduct. Each case will
depend on its own facts, in particular t hose concerning the relationship between the
instructions given or the direction or control exercised and the specific conduct
complained of. In the text of article 8, the three terms ‘instructions’, ‘direction’ and
‘control’ are disjunctive; it is sufficient to establish any one of them. At the same
time it is made clear that the instructions, direction or control must relate to the
conduct which is said to have amounted to an internationally wrongful act.”
98. The Commentary, in paragraph 4, invokes the Nicaragua decision and gives emphasis to
the following passages:
“[D]espite the heavy subsidies and other support provided to them by the
United States, there is no clear evidence of the United States having actually exercised
such a degree of control in all fields as to justify treating the contras as acting on its
behalf . . . All the forms of United States participation mentioned above, and even the
general control by the respondent State over a force with a high degree of dependency
on it, would not in themselves mean, without further evidence, that the United States
directed or enforced the perpetration of the acts contrary to human rights and
humanitarian law alleged by the applicant State. Such acts could well be committed
by members of the contras without the control of the United States. For this conduct
to give rise to legal responsibility of the United States, it would in principle have to be
proved that that State had effective control of the military or paramilitary operations in
the course of which the alleged violations were committed.”
99. The Commission Commentary then summarizes the quotations:
“Thus while the United States was held responsible for its own support for the
contras, only in certain individual instances were the acts of the contras themselves
held attributable to it, based upon actual par ticipation of and directions given by that
State. The Court confirmed that a genera l situation of dependence and support would
be insufficient to justify attribution of the conduct to the State.” - 36 -
IV. The decision of the Appeals Chamber in Prosecutor v. Tadić
100. The decision of the Appeals Chamber in Prosecutor v. Tadić was considered in the
Commentary of the International Law Commission and was distinguished. The significant passage
in the Judgement of 15 July 1999 was as follows:
“In the light of the above discussion, the following conclusion may be safely
reached. In the case at issue, given that the Bosnian Serb armed forces constituted a
‘military organisation’, the control of th e FRY authorities over these armed forces
required by international law for considering the armed conflict to be international was
overall control going beyond the mere financing a nd equipping of such forces and
involving... [such] participation in the planning and supervision of military
operations. By contrast, international rul es do not require that such control should
extend to the issuance of specific orders or instructions relating to single military
actions, whether or not such actions were c ontrary to international humanitarian law.”
(Judgement of 15 July 1999, para. 145; emphasis in the original.)
101. On this finding in the Tadic case, the Commission makes the following assessment:
“The Appeals Chamber held that the requisite degree of control by the
Yugoslavian authorities over these armed forces required by international law for
considering the armed conflict to be international was ‘ overall control going beyond
the mere financing and equipping of such forces and involving also participation in the
planning and supervision of military operations ’. In the course of their reasoning, the
majority considered it necessary to disapprove the International Court’s approach in
Military and Paramilitary Activities . But the legal issues and the factual situation in
that case were different from those facing the International Court in Military and
Paramilitary Activities. The Tribunal’s mandate is directed to issues of individual
criminal responsibility, not State responsibility, and the question in that case
concerned not responsibility, but the applicab le rules of international humanitarian
law. In any event it is a matter for a ppreciation in each case whether particular
conduct was or was not carried out under the cont rol of a State, to such an extent that
the conduct controlled should be attributed to it.”
That is the Commentary of the International Law Commission to Article 8 in paragraph 5.
102. Now the Appeals Chamber seeks to challe nge the authority of the decision in the
Nicaragua case, a decision subscribed to by 14judg es, by asserting that: “In cases dealing with
members of military or paramilitary groups, Cour ts have clearly departed from the notion of
‘effective control’ set out by the International Court...” That is the Tadic Appeals Chamber
Judgement, paragraph125. To support this proposition four cases are invoked (see the Appeals
Chamber Judgement, paras. 124-129).
F0is.t, Stephens v. United Mexican States , 1927, decided by the Mexico/United States
General Claims Commission (United Nations, RIAA IV, p.265). The circumstances were
straightforward. A member of an auxiliary pub lic security force, clearly acting on behalf of the - 37 -
Mexican Government, recklessly shot and killed an American subject in executing the order of a
superior officer. There was no doubt that this involved the responsibility of Mexico. The case was
decided nearly 60 years before the Nicaragua Judgment and therefore no reference is made to the
Judgment or to the test of “effective control” a nd whether there was any need to depart from such
a test. This decision is not concerned with the i ssue of control and is clearly irrelevant. The two
key paragraphs in the decision read as follows:
“7. Responsibility of a country for acts of soldiers in cases like the present one,
in the presence and under the order of a supe rior, is not doubtful. Taking account of
the conditions existing in Chihuahua then a nd there, Valenzuela must be considered
as, or assimilated to, a soldier.
8. Apart from Mexico’s direct liability for the reckless killing of an American
by an armed man acting for Mexico, the United States alleges indirect responsibility of
Mexico on the ground of denial of justice, since Valenzuela was allowed to escape and
since the man who released him, Ortega, ne ver was punished. Both facts are proven
by the record, and reveal clearly a failure on the part of Mexico to employ adequate
measures to punish wrongdoers.” (Ibid., pp. 267-268.)
It does not seem very helpful, with all respect.
104. The second case is Yeager v. Islamic Republic of Iran decided by the Iran-United
States Claims Tribunal. Judgment was signed on 2 November 1987, just a short time after
judgment in the Nicaragua case in the year before. This Award related to the actions of
revolutionary guards performing de facto official functions. The Iran-United States Claims
Tribunal considered that the guards constituted de facto State organs of Iran. No reference was
made to the Judgment in the Nicaragua case and there was no discussion of the test of “effective
control” or the need to depart from such a test ( Iran-United States Claims Tribunal Reports ,
Vol. 17 (1987-IV), p. 92, paras. 42-45).
105. And, Madam President, what is striking is that the Tribunal was not deciding on the
basis of control as such but primarily on the basi s of the toleration and adoption of the exercise of
government authority by the revolutionary guards (see the Award, paragraph 45, in particular).
106. And third we have the decision in Loizidou v. Turkey on the merits, a judgment of the
European Court of Human Rights, on 18 December 1996 (International Law Reports, 108, p. 443).
This judgment is relied upon by the Appeals Cham ber to support the so-called “overall control”
test. This reliance is surprising. First, the re levant passage applies a test of “effective overall - 38 -
control”, and not “overall control” as the basis of the responsibility of Turkey. This formulation
cannot be said to constitute a confirmation of the cr iterion of “overall control” in preference to the
criterion of “effective control”. And, secondly, the sa me test of effective overall control is used to
establish the existence of Turkish “jurisdiction” over the Turkish Republic of Northern Cyprus, the
TRNC, for the purposes of Article 1 of the European Convention (see paragraph56 of the
judgment). In paragraph 52 of the judgment, the concept of jurisdiction is related to the exercise of
effective control by Turkey.
107. The decision of the European Court, with respect, bears no relation to the Nicaragua
case, which is not mentioned in the judgment and was not cited in the pleadings.
10o8.rth, the Jorgic case in the Oberlandesgericht of Dusseldorf, decision of
26September 1997. The account of this case provi ded by the Appeals Chamber shows that the
decision made no reference to the Nicaragua case, or to the test of “effective control”. Indeed, the
issue of control as such was not discussed at all. The issue in the case was whether the conflict in
Bosnia-Herzegovina was an international conflict in the sense of the Fourth Geneva Convention.
109. Madam President, these four decisions pr ovide no justification whatsoever for the
attitude of the Appeals Chamber toward the Judgment of the Court in the Nicaragua case. In
addition the decisions provide no support for the te st of “overall control” adopted by the Appeals
Chamber. Of course, the Appeals Chamber is not bound to follow the decisions of this Court but
attempts to eviscerate its decisions should surely be conducted with more convincing materials.
110. In conclusion, it is necessary to revisit first principles. The test of effective control is to
be applied as a mode of putting the principles of State responsibility into effect. The connection
between the State concerned and the alleged de facto organ or agency must be based on control.
As this Court has spelled out clearly in the Nicaragua Judgment, it must be proved that the
respondent State had effective control of the military or paramilitary operations in the course of
which the alleged violations were committed . The reference here is to paragraph115 of the
Judgment, in particular. - 39 -
V. The argument of Professor Pellet
111. Madam President, Members of the Cour t, my distinguished opponent, ProfessorPellet
has argued strenuously in favour of a low standard of proof in cases of genocide (CR2006/8,
pp.32-39). Professor Pellet relies upon the rele vant paragraphs in the Appeals Chamber’s
judgment in the Tadic case, paragraphs 117 to 120. The App eals Chamber relates the standard of
overall control to the situation which involves an “organized and hierarchically structured group”
(see paragraph 120).
112. It may be asked whether this form of words should make any great difference. The
applicable law is that of State responsibility. The degree of control must surely be effective,
otherwise it is not control. And it is clear that the Appeals Chamber is seeking to apply the normal
principles of State responsibility.
113. In any event Professor Pellet deploys vari ous other arguments in seeking to distinguish
the Nicaragua case.
114. First, there is the amnesia argument. Rather sweetly, he asked the Court to “forget”
Nicaragua (CR2006/8, p.34). Second, he argued th at because of its special character, genocide
should be accorded a lower standard of proof (CR 2006/8, paras. 67-69).
115. Such reasoning is necessarily incompatible with normal legal reasoning, and also with
the principles of State responsibility. In partic ular, the applicant State ignores the substantial
evidence of the status of the Republika Srpska as an independent State, and the clear evidence that
as of May 1992 General Mladic no longer accepted instructions from Belgrade.
116. Professor Pellet states that the historical c ontext is completely different from that of the
contras (CR2006/8, paras. 57-58). Now that is no doubt true. But the comparison is irrelevant
because no account is taken of the actual relations between Pale and Belgrade. ProfessorPellet
refers to the assistance and support given to Republik a Srpska but not to the issue of control. This
is precisely the distinction which the Court made in the Nicaragua case. The financing, organizing,
training, supplying and equipping of the contras did not constitute control.
117. It is the independence of Republika Srpska , and its territorial separation, which makes
the comparisons with Northern Cyprus and the contras inapposite. In the Loizidou case the key
point was the existence of the sovereignty of th e Republic of Cyprus over the island as a whole. - 40 -
Professor Pellet also states that the Nicaragua case can be distinguished because the United States
was not the State from which the armed activities commenced (CR 2006/8, paras. 64-66).
118. But, Madam President, Members of the Cour t, this point flies in the face of the facts
involved in the disintegration of Yugoslavia, including the appearance of new States, the operation
of insurgent groups and a complex civil war. In any event, ProfessorPellet’s analogue is
inappropriate because he is forgetting that, in the context of the use of force, the Court did accept
that the United States had sufficient control.
119. Thus, in paragraph 3 of the dispositif the Court holds the United States responsible for a
breach of its obligation under customary internationa l law not to intervene in the affairs of another
State. The issue of control militated against im putability only in the case of breaches of principles
of general humanitarian law: as indicated in paragraph 9 of the dispositif. And, Madam President,
it must be obvious that the analogue of the breaches of humanitarian law in the present proceedings
is genocide.
E.T HE R EPUBLIKA SRPSKA AND ITS ARMED FORCES WERE NOT UNDER THE EFFECTIVE
CONTROL OF THE B ELGRADE GOVERNMENT
I. Introduction
120. Madam President, at this stage it is necessary to apply the principles of State
responsibility to the evidence. In doing so,e focus will be upon the main submission of the
respondent State, namely, that at the material ti me the Republika Srpska and its armed forces were
not under the effective control of the Belgrade Government.
121. The primary evidence on this question is as follows:
(a) the pertinent reports of the United Nations Secretary-General from 30 May 1992 onwards;
(b) the documents and practice of the Internati onal Conference on the Former Yugoslavia and the
Co-Chairmen of the Steering Committee;
(c) the recognition by the States concerned of the negotiating status of the Bosnian Serb party;
(d) the evidence of the views of LordOwen, one of the Co-Chairmen, on the relations between
Belgrade and Pale; and
(e) the specific character of the political consciousness of the Bosnian Serbs. - 41 -
II. The United Nations documents
122. The armed forces of the Bosnian Serbs had in fact ceased to be under the control of the
Federal Republic of Yugoslavia as early as May1992 (Report of the Secretary-General dated
30 May 1992 (S/24049), paras. 8 and 9):
“8. Uncertainty about who exercises po litical control over the Serb forces in
Bosnia and Herzegovina has further compli cated the situation. The Bosnia and
Herzegovina Presidency had initially been re luctant to engage in talks on these and
other issues with the leadership of the ‘Ser bian Republic of Bosnia and Herzegovina’
and insisted upon direct talks with the Belgrade authorities instead. A senior JNA
representative from Belgrade, General Nede ljko Boskovic, has conducted discussions
with the Bosnia and Herzegovina Presidency, but it has become clear that his word is
not binding on the commander of the army of the ‘Serbian Republic of Bosnia and
Herzegovina’, General Mladic. I ndeed, as indicated in paragraph 6 (b) above, Serb
irregulars attacked a JNA convoy withdrawing from a barracks at Sarajevo on 28 May
under arrangements negotiated by General Bos kovic. It also appears that the heavy
shelling of Sarajevo on the ni ght of 28/29 May took place on the orders of General
Mladic in direct contravention of instru ctions issued by General Boskovic and the
JNA leadership in Belgrade.
9. Given the doubts that now exist about the ability of the authorities in
Belgrade to influence General Mladic, who has left JNA, efforts have been made by
UNPROFOR to appeal to him directly as well as through the political leadership of the
‘Serbian Republic of Bosnia and Herzegovina ’. As a result of these efforts General
Mladic agreed on 30 May 1992 to stop the bomba rdment of Sarajevo. While it is my
hope that the shelling of the city will not be resumed, it is also clear that the
emergence of General Mladic and the forces under his command as independent actors
apparently beyond the control of JNA greatly complicates the issues raised in
paragraph4 of Security Council resolution752(1992). PresidentIzetbegovic has
recently indicated to senior UNPROFOR offi cers at Sarajevo his willingness to deal
with General Mladic but not with the political leadership of the ‘Serbian Republic of
Bosnia and Herzegovina’.”
123. The separate political identity of the Bosnia n Serbs is evidenced in a series of Reports
of the Secretary-General from November 1992 onwards.
First, the Report of the Secretary-General, 24 November 1992, paragraph 38:
“On the basis of agreements reached with the three Bosnia and Herzegovina
parties in Geneva, UNPROFOR has succe eded in setting up a Mixed Military
Working Group (MMWG), which held its first meeting in Sarajevo on
23October1992. The MMWG is now chaired by the Chief of Staff of BHC and
consists of representatives of the three parties (the Presidency of Bosnia and
Herzegovina, Bosnian Croats and Bosnian Serbs). This is the first time that the parties
have agreed to tripartite meetings in Sarajevo to address major issues of concern. The
MMWG has held six meetings so far. Further meetings are to be held every three or
four days. The subjects primarily addressed by the MMWG so far have been
(a)demilitarization of parts or all of Sarajevo, (b)opening of routes within and to
Sarajevo, and (c)establishment of a ceasefire in spec ified areas or all of Bosnia and
Herzegovina. At the sixth meeting on 10 N ovember 1992, the three sides agreed to
and signed a cease-fire for all of Bosnia and Herzegovina to be effective at midnight
11/12 November 1992.” (Doc. S/24848, 24 November 1992.) - 42 -
Then there is the report of the Secretary-Gene ral dated 18 January 1993, paragraphs 2 to 25
(doc.A/47/869). This report is of particular significance and deals with the work of the
International Conference on the Former Yugoslavia. The authorities in Pale are described as the
“Bosnian Serb side”.
Third, the report of the Secretary-General, dated 26 March 1993 (doc. S/25479). This report
describes the progress of peace talks under the aeg is of the Co-Chairmen of the Steering
Committee of the International Conference on the Fo rmer Yugoslavia. Reference is made to the
negotiation of interim governmental arrangement s between the “Bosnian Serb side” and (for
example) the “Bosnian Croat side”. The role of the Bosnian Serbs in the negotiations is described
in paragraphs 14 to 21 of this report.
Fourth, report of the Secretary-General, date d 7 January 1994 (doc. A/48/847). This deals
with the situation in Bosnia and Herzegovina and, in particular, the International Conference on the
Former Yugoslavia. This document refers to “t he parties to the conflict”. The content of
paragraph 5 is of particular significance. Paragraph 5 reads:
“5. The latest round of efforts by the Co-Chairmen, together with the parties,
has met one of the stated objectives of the General Assembly, namely arriving at just
and equitable proposals for lasting peace. As the Co-Chairmen reported to the
Security Council on 29 December (S/26922), the situation following discussions held
at Geneva on 21 December and at Brussels on 22 and 23 December was as follows:
(a) There was agreement among all three sides that the Muslim-majority republic
should have 33.3 per cent of territory and the Croat majority republic should have
17.5 per cent;
(b) There was agreement on the core areas to be allocated to the three republics. The
issues remaining to be settled on territorial delimitation affected a small
percentage of territory;
(c) Working groups were established to l ook into the following issues and to help
achieve agreement on them by 15January: the definition of the Mostar city area
that would be placed under the temporary administration of the European Union;
technical arrangements for providing the Muslim-majority republic with road and
rail access to Brcko and the Sava river; access of the Muslim-majority republic to
the sea around Neum; continued discussions on territorial delimitation.”
Fifth, report of the Secretary-General, date d 11 March 1994 (doc. S/1994/291). This report
concerns a variety of special questions but in pr inciple is an update on progress towards a peaceful
settlement. - 43 -
Sixth, the final report of the Commission of Experts established pursuant to Security Council
resolution780 of 1992 dated 27May1994 (doc.5/1994/674, Ann.). This report has been the
subject of a critical examination by my collea gue Mr.Obradovic. In the present context it is
necessary to point out that the report is concerned exclusively with the responsibility of individuals
for breaches of the Genocide Convention. See pa ragraphs87 to 100 of the report and also the
General Conclusions and Recommendations, at paragraphs 306 to 321.
Lastly, there are other United Nations documen ts, and in particular, the report of the
Co-Chairmen of the Steering Committee on the Acti vities of the International Conference on the
Former Yugoslavia addressed to the Secretary-Ge neral on 5 August 1993 (doc. S/26260, dated
6 August 1993).
124. This document consistently refers to th e “Bosnian Serbs” as a negotiating entity, and as
a potential element in a confederal solution for Bosnia and Herzegovina. References are also made
to “the Serb and Croat sides” and “the Serb and Croat parties”. Appendix 1 of the report consists
of the Constitutional Agreement of the Union of Republics of Bosnia and Herzegovina, the
boundaries of which are defined in Annex A.
125. The report of the Co-Chairmen relates to the negotiations in the period May to early
August 1993. The negotiations originally star ted on 3 September 1992. The political framework
within which the talks took place included the pr emise that the Bosnian Serbs represented a
political entity with a status similar to that of th e other parties. The Republika Srpska was to be
one of the constituent Republics of the Union envisaged in the Constitutional Agreement.
126. These developments were reflected in the contemporaneous sequence of Security
Council resolutions affirming and supporting the e fforts of the International Conference on the
Former Yugoslavia. Thus resolution 787 of 1992, adopted on 16 November 1992, in a series of
findings refers to “the parties in the Republic of Bosnia and Herzegovina”, and it is clear from the
reference to the draft outline constitution that the Bosnian Serbs were one of the parties.
127. In resolution 836, adopted on 4 June 1993, the Security Council again recognized the
negotiating parties in the consideranda as follows: - 44 -
“ Commending the Government of the Republic of Bosnia and Herzegovina and
the Bosnian Croat party for having signed the Vance-Owen Plan,
Gravely concerned at the persistent refusal of the Bosnian Serb party to accept
the Vance-Owen Plan and calling upon that party to accept the Peace Plan for the
Republic of Bosnia and Herzegovina in full, . . .”
128. Such references continue to appear, for example, in resolution 908 of 1994, adopted on
31 March.
129. The imposition of sanctions upon the Re publika Srpska in Se ptember 1994 involved
further recognition of the political reality of the en tity. After all, one does not impose sanctions on
a ghost. Annex5 of the Statement of Lord Owen provided to the ICTY summarizes the
developments in the first few paragraphs. Under the heading “ICFY mission to the FRY”
Lord Owen writes: “Operations of the Interna tional Conference on the Former Yugoslavia (ICFY)
Mission to the Federal Republic of Yugoslavia (Serbia and Montenegro) ⎯ Report of the
Co-Chairmen of the Steering Committee.”
And the first section of the report now follows:
“1.This report is submitted pursuant to paragraph three of Security Council
resolution943 (1994) adopted on 23 September. In that resolution the Security
Council requested that the Secretary-General submit every 30 days for its review a
report from the Co-Chairmen of the st eering committee of the International
Conference on the Former Yugoslavia on the border closure measures taken by the
authorities of the Federal Republic of Yugoslavia (Serbia and Montenegro).
2. It will be recalled that on 4 August, 1994 the following measures were ordered by
the government of the Federal Republic of Yugoslavia (Serbia and Montenegro) to
come into effect the same day:
(a) ‘to break off political and economic relations with the Republica Srpska’
(b) to prohibit the stay of the members of the leadership of the Republica Srpska
(Parliament, Presidency and government ) in the territory of the Federal
Republic of Yugoslavia’
(c) as of today the border of the Federal Republic of Yugoslavia is closed for all
transport towards the Republica Srpska, except food, clothing and medicine’.
3. On 19 September 1994 and on 3 October 1994 the Secretary-General transmitted
to the Security Council reports from the Co-Chairmen of the steering committee of
the International Conference on the Former Yugoslavia on the state of
implementation of the above-mentioned measures (S1994 1074; S1994 1124).
The report dated 3 October 1994 contained the following certification from the
Co-Chairmen. - 45 -
‘Based on the mission’s on-site observation, on the advice of the
mission coordinator, Mr. Bo Pellnaes, and in the absence of any contrary
information from the air, whether airborne reconnaissance system of the
North Atlantic Treaty Organisation (NATO), or from national technical
means, the Co-Chairmen conclude th at the government of the Federal
Republic of Yugoslavia (Serbia and Montenegro) is meeting its
commitment to close the border between the Federal Republic of
Yugoslavia (Serbia and Montenegro) and the area of the Republic of
Bosnia and Herzegovina under the control of the Bosnian Serb forces’.”
130. In this same general context ⎯ the operations of the International Conference on the
Former Yugoslavia ⎯ Annex C of the Statement of Lord Owen to the ICTY is also of assistance.
Annex C consists of a “Chronology of Meetings between Lord Owen as EU Co-Chairman of the
ICFY and Slobodan Milosevic and the leaders of the Federal Republic of Yugoslavia and the
Croatian and Bosnian Serbs”.
131. This summary covers the period from 28 August 1992 to 5 June 1995. In this period,
Lord Owen had 35 meetings with Karadzic, either with Karadzic alone, or with other Bosnian Serb
officials. Lord Owen also had seven meetings with Karadzic and Milosevic together, that is, to the
exclusion of others.
132. In this period it is clear, especially from the account in Lord Owen’s memoir,
Balkan Odyssey, that Karadzic and the Bosnian Serb lead ership were independent of the Belgrade
Government. The contemporary sources show that Milosevic had no control over Karadzic and his
colleagues in Pale. And, it must be recalled th at, in the end, economic sanctions and a bombing
campaign were necessary to coerce the Bosnian Serbs.
III. The views of Lord Owen on the relations of Pale and Belgrade
133. I now move on to the views of Lord Owen on the relations of Pale and Belgrade. These
are of obvious importance, and three sources are to be considered in this connection.
134. The first is the statement of Lord Owe n, dated September 2003, for production to the
ICTY. The statement was made on the invitation of the ICTY and on the assumption that it would
be made public. Lord Owen was called by the Trial Chamber in the Milosevic case as a court
witness.
135. In the section on the relations between the accused and General Mladic, LordOwen
offers the following conclusion: - 46 -
“The extent to which Mladic was unde r political control from either Pale or
Belgrade is a very difficult question to answer without having evidence from
telephone calls, telex messages and access to f iles in Belgrade. (I doubt there were
many files kept in Pale) but my impression was that Mladic, from 1994, did not feel
himself under the command of any JNA officer, even though he was reliant on them
for ammunition, fuel and spare parts.” (Statement, p. 25).
136. The second source of evidence consists of the statements of Lord Owen in the ICTY
transcript of the Milosevic case on 3 and 4 November 2003. In his answers to questions from the
defendant in the Milosevic case, LordOwen made a number of significant statements concerning
the relations between the authorities in Belgrade and the armed forces of Republika Srpska. During
the hearing on 3 November 2003, Judge May asked the following question ⎯ I am afraid that the
transcript is not always very articulate and I have not presumed to improve its articulation, so some
of this is a little rough:
“ Judge May: Lord Owen, there is something I want to ask you before you look
at the map. The accused put this characterisation ⎯ he didn’t ask a question, but he
put it in what he was saying in his question. ‘There is also no doubt, and you can bear
this out, that I myself endeavoured to wield my influence to put a stop to all of that,
but quite obviously, that influence was not strong enough.’ And then he went on to
make another point.”
And so Judge May says,
“Could you help the Trial Chamber, please, to say whether you agree with that
characterisation, first of all, that theaccused, Milosevic, endeavoured to wield his
influence to put a stop to it; secondly, that the influence was not strong enough.”
“ The witness [Lord Owen]: Well, as I’ve tried to bring out in the evidence so
far, within the negotiating chamber and in the direct talks we had and negotiations on
the demilitarization of Sarajevo or of the map of Sarajevo and how we could deal with
Sarajevo first under the Vance-Owen Peace Pl an and then under the European Union
action plan, and then the Contact Group plan, it is perfectly true that then
PresidentMilosevic did understand most of the issues and argued with his fellow
Serbs, Bosnian Serbs, that ⎯ for creative solutions to this. And he’s right to say that
we spent many, many hours with this map. And PresidentIzetbegovic was there as
well, and sometimes Mr. Silajdzic. Practically never Mr. Ganic . . .
Now, my puzzlement is that, having seen the logic of the settlement, having, for
example, understood that it was not viable for the Serbs to continue to be ⎯ position
themselves along all the main roads and railway lines coming into Sarajevo, and when
Karadzic and Krajisnik refused to move, President Milosevic at that time did not at
that time say to them, ‘All right, if you c ontinue like this, I cannot allow the Serbian
people that I represent in Serbia and Monteneg ro to be dragged down by international
sanctions any longer, and I demand that you either accept it or we will cut off all
forms of supplies to you.’ And I urged him time after time after time to do this.
And then, a final statement from Lord Owen: - 47 -
“But of his understanding of the issue and the way to solve this problem, which
was not easy, there was not much disagreement between himself, President
Izetbegovic, myself, and Mr.Stoltenberg or Mr.Vance. There was broad agreement
about what needed to be done.” (Transcript, pp. 28467-28469; emphasis added.)
137. These somewhat discursive remarks none theless show the essential agreement of
LordOwen with the leading questions put by Judg e May. The response confirms that Milosevic
was not in a position to control the decision making on the part of the Bosnian Serb politicians.
138. And there is other evidence given by Lord Owen, which shows conclusively that
Milosevic did not control the politicians in Pale . Giving evidence before the ICTY, LordOwen
was questioned by Mr. Kay as follows:
“Q.In your book at page 103, you make it clear it was the pressure by Mr. Milosevic,
then-President Milosevic, on Mladic and Karadzic and the other leaders that this
plan had to be adopted.
A. Well, he pressurized, and he got them to sign up for it in Athens, but they then
denounced, went back on the signature, including, really, Dr.Karadzic in Pale.
Dr.Karadzic went nominally in support of the plan in Pale, but I think what
reports I’ve heard of his speech, it was done in such a low key way that he was
already [effectively] helping those who were going to vote against it.
Q. You described Karadzic breaking down an d caving in at the eleventh hour in
relation to the Vance-Owen Peace Plan.
A. In Athens, yes. He ⎯ they negotiated through most of the night with him, and that
was not just President Milosevic but it was President Cosic and Bulatovic and also
Prime Minister Mitsotakis, the Greek Prim e Minister. He played a very helpful
role.
Q. Again, these were key steps taken by Mr. Milosevic in support of the peace plan to
attempt on his side, on the Bosnian Serb side, to get them to that commitment.
A. Yes. No doubt he was ⎯ he ⎯ well, I have no doubt that he was totally
committed to it and that he didn’t go to Pale and go through a subterfuge of trying
to pretend [that] he was selling them a plan and letting them vote it down. He
suffered quite a humiliation in Belgrade of not being able to get his will through in
Pale. That’s my reading of it. There are others who, as I say, have a conspiracy
theory about this but I don’t think that’s the truth.
Q. You describe him at Pale as having been defeated, collecting only two votes and
the other party collecting, I think 51 votes or something like that, and him leaving
by a side door.
A. Yes. I wasn’t there, but yes that’s the description in the papers and that
fulfilled ⎯ I think that was the case, and th e crucial intervention came from
General Mladic and also Mrs. Plavsic.” (Transcript, pp. 28558-28559.)
139. In my submission this evidence clearly reveals the inability of Milosevic to influence
the political constituency in the capital of Republika Srpska. - 48 -
140. The third source of evidence is the contemporary publication by Lord Owen; the book
Balkan Odyssey, published in 1995. The leading contem porary account of the peace negotiations
known as the International Conference for the Former Yugoslavia was published by LordOwen
under that title . The text includes some significant comments on the relationship between the
Republika Srpska and Belgrade. The first point of importance is the fact that the Bosnian Serbs
were represented by their own delegation.
141. What emerges from the book overall is that the Bosnian Serb Government in Pale was
more strongly nationalist than Milosevic and was not under the control of Belgrade in the relevant
period, which was from August 1993 onward. The text of the book reveals that Milosevic, as an
individual, had some degree of influence over Karadzic in the earlier phase of the negotiations. But
it is clear that Milosevic had no control over deci sion-making by the Bosnian Serbs. Mladic had
made his position clear in May 1992. He would not take orders from Belg rade and this emerges
from the Report of the Secretary-General dated 30 May 1992.
142. From April 1993 onward there was a serious breach in the relations between Karadzic
and Milosevic, which is dealt with in Balkan Odyssey (pp. 318-319; 325-326).
143. Lord Owen’s assessment of these relations over the long run is as follows:
“After an initial hesitation in April 1993 I was in little doubt that Milosevic’s
breach with Karadzic had by August 1994 developed many of the ingredients of a
grudge match. They both wanted to be king of the Serbs. Karadzic was trying to be
the successful war leader, a non-Communist and a devout Orthodox Christian in the
Mihailovic tradition. Milosevic wanted to be the leader who, having fought for and
won all the essential Serb interests during the break-up of Yugoslavia, was now
bringing peace and prosperity. I saw no reas on for us to be involved in their feud,
which was why I was opposed to the United St ates and German line of not talking to
the Bosnian Serbs, for I could envisage circumstances where their interests might
prove to be closer to ours that Milosevic’s. This happened for example over Croatia in
the spring of 1995, when the Bosnian Serbs did not attack the Croatian government
forces in Western Slavonia who were attacking the Croatian Serbs.
PresidentTudjman perceptively kept up a private dialogue with the Bosnian Serb
leadership throughout the time they were [not] talking to President Milosevic.”
(Balkan Odyssey, 1995, pp. 325-326.)
144. Lord Owen was relying upon much direct experience of the events and the leaders and
no one reading his memoir could come away be lieving that the Republika Srpska was under the
thumb of Belgrade. - 49 -
IV. The specific political consciousness of the Bosnian Serbs
145. A very significant element in the tende ncy of the Bosnian Serbs to maintain an
independence of their own is the specific political consciousness of this group. Various sources
refer to this spirit of independence, including Lord Owen in his memoir ( Balkan Odyssey, 1995,
pp. 102-103). During his evidence in front of the ICTY, in response to a question from Mr. Kay,
LordOwen also indicated the particular attitudes of the Bosnian Serbs and the Pale Assembly.
LordOwen’s statements are in th e transcript, with the appropria te reference (4November 2003,
pp. 28562-28564).
146. Referring to the attitude prevailing in the National Assembly of the Republika Srpska in
1993, Lord Owen expressed his opinion in the sequence of questions and answers as follows:
“Q.The position that you were left with in the May was that Pale could reject Belgrade
and get away with it.
A. And buck the rest of the world, yes.
Q. Yes. Because they ⎯ they were able to present a substantial force within the area,
and they had a cohesive political agenda on their own terms.
A. Yes.
Q. As the vote at the Pale Assembly showed.
A. Yes. You have to remember these people were not the same political party as the
then-President Milosevic, and they had a different view of Serbian history. I
think it’s true to say that Karadzic bega n to see himself as a sort of Mihajlovic
Serb, a different tradition from Tito and from the Partisans.” (Transcript,
p. 28562; emphasis added.)
147. In an historical perspective it was th e Serbs in Bosnia who remained longer under
foreign rule and were the more exposed to the oppression of other nationalities or religious groups,
including “a conservative land-holding aristocrac y more fanatical than the central Ottoman
authorities in Constantinople” (the British Official Geographical Handbook on Jugoslavia, Vol. II,
October 1944, p.53). The conditions of the Christian peasantry in Bosnia and Herzegovina
actually became a matter of international concern in the period from 1876 onward.
V. The status of the Republika Srpska: in the Bosnian Reply and oral argument
148. Madam President, I shall now examine the status of the Republika Srpska with
particular reference to the assertions on this subj ect in the Bosnian Reply. At the outset it is - 50 -
important to recall the general context in which theBosnian side has prepared the Reply. It is a
matter of public knowledge that the Government of Bosnia has had very co nsiderable assistance
from foreign intelligence agencies since it was establi shed in 1992. The activities of the CIA are
referred to, for example, in the work published by RichardHolbrooke, entitled To End a War
(New York, 1998). Several references in the book reveal the intelligence role of the CIA in Bosnia,
(pp. 73 and 212).
149. Against this background, and given the el ectronic surveillance available to the Bosnian
Muslim authorities, the Court is entitled to draw the inference ⎯ our colleagues on the other side
are very fond of inferences ⎯ that such evidence did not suppor t the contentions of the applicant
State, but contradicted them. Otherwise, the evidence would have been presented. It may be noted
that evidence of electronic interceptions is utilized but is attributed to the Bosnian Ministry of the
Interior (see, for example, Reply of Bosnia, p. 475, para. 26).
150. The Bosnian side invokes the arrangements for the Dayton conference as evidence of an
alleged Yugoslav control over Republika Srpska (Rep ly, pp.465-466, paras.2-3). This point has
been made on several occasions during the hearings here. The assurances given by President
Milosevic were of a political character and thei r character is in no way incompatible with the
separate existence of Republika Srpska. Indeed, the assurances could only make political sense if it
be assumed that Republika Srpska was a separate entity.
151. The Dayton Accords themselves confir m the political reality of a separate and
independent Republika Srpska which, it was agreed, would become a part of a new State. Within
this framework the Republika Srpska in its own ca pacity signed a series of 11 trilateral agreements
including the following:
⎯ Annex 1-A Agreement on Military Aspects of the Peace Settlement;
⎯ Annex 1-B Agreement on Regional Stabilization;
⎯ Annex 2 Agreement on Inter-Entity Boundary Line and Related Issues;
⎯ Annex 3 Agreement on Elections;
⎯ Annex 4 Constitution;
⎯ Annex 5 Agreement on Arbitration;
⎯ Annex 6 Agreement on Human Rights. - 51 -
152. The outcome of these various trilatera l agreements was the General Framework
Agreement for Peace concluded in Paris. The basis of these complex arrangements was the
assumption that the Republika Srpska was an inde pendent and viable Contracting Party to the
11trilateral agreements concluded. There is the provision in the Preamble of the General
Framework Agreement for Peace in Bosnia and Herzegovina, which reads:
“Noting the Agreement of August 29, 1 995, which authorized the delegation of
the Federal Republic of Yugoslavia to sign, on behalf of the Republic of Srpska , the
parts of the peace plan concerning it, with the obligation to implement the Agreement
that is reached strictly and consequently” (emphasis added).
That is the translation I have.
This agreement implies the existence of two independent and equal entities, namely, that one
entity authorizes the other to do something on its behalf.
153. The Applicant makes an allegation in paragr aph 3, page 465, of the Reply that “before
initialling the Dayton Accords, the Federal Repub lic of Yugoslavia provided written assurances to
the negotiating Parties that it would ‘ensure that the Republic of Srpska fully respects and complies
with the provisions’ of the Agreement”. However, the Applicant fails to draw attention to the letter
which the delegation of the Republic of Srpska, comprised of Momcilo Krajišnik, Nikola Koljevi ć
and Aleksa Buha, submitted on 20 November 1995 to the delegation of the Federal Republic of
Yugoslavia (doc. A/50/790, S/1995/999, pp. 124-125). This reads as follows:
“Dear Mr. President,
We write to you regarding the Peace Agreement and the documents which are
to be initialled at the conclusion of the peace negotiations in Ohio. Since it is
requested, in a number of documents prepared for adoption, that the FR of Yugoslavia
be the guarantor of the obligations taken by the RS in the peace process, we kindly ask
you to assume, on behalf of the FRY, the ro le of the guarantor that the Republika
Srpska shall fulfil all the obligations it took.”
Consequently, Madam President, the obligation of guarantee had been assumed at the request of the
delegation of the Republic of Srpska.
154. In fact there was a simple explanation for the absence of Karadzic and Mladic. The
senior United States diplomat, Richard Holbrooke, had made it clear that, as indicted war criminals,
they would not be permitted to take part in the Dayton talks (R. Holbrooke, To End a War , 1998,
p. 107). - 52 -
VI. The standard of proof
155. Madam President, before I conclude on the question of control, it is necessary to
examine the standard of proof. The present proceed ings concern the most serious issues of State
responsibility it is possible to imagine and the st andard of proof should, as a matter of the good
administration of justice, be appropriately rigorou s. In relation to the allegations of Yugoslav
collusion with Albania in the Corfu Channel case, on the merits, it is useful to recall that the Court
required “conclusive evidence”, and remarked that: “A charge of such exceptional gravity against
a State would require a degree of certaint y that has not been reached here.” ( I.C.J. Reports 1949,
p. 17.)
156. In the same Judgment the Court stated th at: “The proof may be drawn from inferences
of fact, provided that they leave no room for reasonable doubt.” ( I.C.J. Reports 1949 , p. 18;
emphasis in the original.) In general the Court in the Corfu Channel case adopted a policy of
considerable caution in relation to reliance upon indirect or circumstantial evidence.
157. In the recent jurisprudence of arbitral tr ibunals, the standard of proof in relation to
forms of illegality, such as corruption, is form ulated as a requirement of “clear and convincing”
evidence ( Westinghouse case, ICC Award of 19 December 1991, p.34; the Himpurna case,
UNCITRAL Final Award, 4 May 1999, para. 171).
158. More directly in point are the four Awards adopted recently by the Eritrea-Ethiopia
Claims Commission. The Commission considered that the gravity of some of the claims warranted
the adoption of a “clear and convi ncing” standard of proof ( Award ER17, 42 ILM (2003), 1083,
para. 46; Award ET4 , ibid., 1056, para.37; Award ERCF , 43 ILM (2004), 1249, para.6;
Award ET2, ibid., 1275, para. 7).
159. Madam President, this Court is, of course, in charge of its own procedure and these
references are respectfully offered in order to assist the Court by adducing recent practice.
VII. Conclusion: the Republika Srpska was not under
the control of the Belgrade Government
160. This consideration of the question of th e standard of proof leads naturally to my
conclusion on the issue of control. In the light of all the evidence, it is clear that there is no clear
and convincing evidence of control of the Republ ika Srpska by the Belgrade Government. And - 53 -
thus there is no basis for an attribution of the ac tions of the Republika Srpska to the Government in
Belgrade. The Belgrade leadership had no effectiv e control over the Bosnian Serbs. Moreover, if
the criterion espoused in the Appeals Chamber of th e ICTY were to be preferred, there is no
evidence of “overall control” either.
161. In any case there is a substantial quantity of confirmatory evidence of the
non-involvement of the Belgrade Government in the actions of the Republika Srpska to which I
shall now turn.
Madam President, if it were convenient, it would be good for my logical presentation to stop
there. Thank you.
The PRESIDENT: Thank you, Professor Brownlie. The Court will now rise and resume at
3 o’clock this afternoon.
The Court rose at 12.55 p.m.
___________
Audience publique tenue le lundi 13 mars 2006, à 10 heures, au Palais de la Paix, sous la présidence de Mme Higgins, président