Non-Corrigé
Uncorrected
CR 2008/10
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2008
Public sitting
held on Tuesday 27 May 2008, at 4.30 p.m., at the Peace Palace,
President Higgins presiding,
in the case concerning Application of the Convention on the Prevention
and Punishment of the Crime of Genocide
(Croatia v. Serbia)
________________
VERBATIM RECORD
________________
ANNÉE 2008
Audience publique
tenue le mardi 27 mai 2008, à 16 h 30, 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
(Croatie c. Serbie)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presieitgins
Vice-Presi-nhtasawneh
Judges Ranjeva
Shi
Koroma
Parra-Aranguren
Buergenthal
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Judges ad hoc Vukas
Kreća
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
Al-K.vsce-prh,ident
RaMjev.
Shi
Koroma
Parra-Aranguren
Buergenthal
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Sjoteiskov,
Vukas .
Kre ća, juges ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of the Republic of Croatia is represented by:
H.E. Mr. Ivan Šimonović, Ambassador, Professor of Law at the University of Zagreb Law Faculty,
as Agent;
H.E. Ms Andreja Metelko-Zgombić, Ambassador, Head of International Law Service, Ministry of
Foreign Affairs and European Integration,
Ms Maja Seršić, Professor of Law at the University of Zagreb Law Faculty,
H.E. Mr. Frane Krnić, Ambassador of the Republic of Croatia to the Kingdom of the Netherlands,
Cso-Agents;
Mr. James Crawford, S.C., Whewell Professor of In ternational Law, University of Cambridge, and
Barrister, Matrix Chambers,
Mr.PhilippeSands, Q.C., Professor of Law, Univ ersity College London, and Barrister, Matrix
Chambers,
as Counsel and Advocates;
Mr. Mirjan Damaska, Sterling Professor of Law, Yale Law School,
Ms Anjolie Singh, Member of the Indian Bar,
as Counsel;
Mr. Ivan Salopek, Third Secretary of the Embassy of the Republic of Croatia in the Kingdom of the
Netherlands,
MsJanaŠpero, Ministry of Justice, Directorat e for Co-operation with International Criminal
Courts,
as Advisers.
The Government of the Republic of Serbia is represented by:
Mr. Tibor Varady, S.J.D. (Harvard), Professor of Law at the Central European University,
Budapest and Emory University, Atlanta,
as Agent;
Mr. Saša Obradović, First Counsellor of the Embassy of the Republic of Serbia in the Kingdom of
the Netherlands,
Cso-Agent; - 5 -
Le Gouvernement de la République de Croatie est représenté par :
S. Exc. M. Ivan Šimonović, ambassadeur, professeur de droit à la faculté de droit de l’Université de
Zagreb,
comme agent ;
S. Exc. Mme Andreja Metelko-Zgombi ć, ambassadeur, chef du service de droit international du
ministère des affaires étrangères et de l’intégration européenne,
Mme Maja Seršić, professeur de droit à la faculté de droit de l’Université de Zagreb,
S. Exc. M. Frane Krni ć, ambassadeur de la République de Croatie auprès du Royaume des
Pays-Bas,
comme coagents ;
M. James Crawford, S.C., professeur de droit international, titulaire de la chaire Whewell à
l’Université de Cambridge, avocat, Matrix Chambers,
M. Philippe Sands, Q.C., professeur de droit au Un iversity College de Londres, avocat, Matrix
Chambers,
comme conseils et avocats ;
M. Mirjan Damaska, professeur de droit, titulaire de la chaire Sterling, Yale Law School,
Mme Anjolie Singh, membre du barreau indien,
comme conseils ;
M. Ivan Salopek, troisième secrétaire à l’ambassade de Croatie aux Pays-Bas,
Mme Jana Špero, direction de la coopération avec la Cour pénale internationale au ministère de la
justice,
comme conseillers.
Le Gouvernement de la République de Serbie est représenté par :
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,
comme agent ;
M. Saša Obradović, premier conseiller à l’ambassade de la République de Serbie au Royaume des
Pays-Bas,
comme coagent ; - 6 -
Mr. Andreas Zimmermann, LL.M. (Harvard), Professor of Law at the University of Kiel, Directo
r
of the Walther-Schücking Institute,
Mr. Vladimir Djeri ć, LL.M. (Michigan), Attorney at Law, Mikijelj, Jankovi ć and Bogdanovi ć,
Belgrade, President of the International Law Association of Serbia,
as Counsel and Advocates;
H.E. Mr. Radoslav Stojanović, S.J.D., Ambassador of the Republic of Serbia to the Kingdom of the
Netherlands, Professor at the Belgrade University School of Law,
Ms Sanja Milinković, LL.M., Ambassador, Head of the International Legal Service of the Ministry
of Foreign Affairs of the Republic of Serbia,
Mr. Vladimir Cvetković, First Secretary of the Embassy of the Republic of Serbia in the Kingdom
of the Netherlands,
Ms Jelena Jolić, M.Sc. (London School of Economics and Political Science),
Mr. Igor Olujić, Attorney at Law, Belgrade,
Mr. Svetislav Rabrenović, LL.M. (Michigan),
Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Walther-Schücking Institute, University of Kiel,
Ms Dina Dobrković, LL.B.,
as Advisers. - 7 -
M. Andreas Zimmermann, LL.M. (Harvard), professeur de droit à l’Université de Kiel, directeur de
l’Institut Walther-Schücking,
M. Vladimir Djerić, LL.M. (Michigan), avocat, cabinet Mikijelj, Jankovi ć & Bogdanovi ć,
Belgrade, et président de l’association de droit international de la Serbie,
comme conseils et avocats ;
S. Exc. M. Radoslav Stojanović, S.J.D., ambassadeur de la République de Serbie auprès du
Royaume des Pays-Bas, professeur à la faculté de droit de l’Université de Belgrade,
Mme Sanja Milinković, LL.M., ambassadeur, chef du service juridique international du ministère
des affaires étrangères de la République de Serbie,
M. Vladimir Cvetković, premier secrétaire à l’ambassade de la République de Serbie au Royaume
des Pays-Bas,
Mme Jelena Jolić, M.Sc. (London School of Economics and Political Science),
M. Igor Olujić, avocat, Belgrade,
M. Svetislav Rabrenović, LL.M. (Michigan),
M. Christian J. Tams, LL.M., Ph.D. (Cambridge), Institut Walther-Schücking, Université de Kiel,
Mme Dina Dobrković, LL.B,
comme conseillers. - 8 -
The PRESIDENT: Please be seated. The sitting is open. The Court meets today to hear the
first round of oral argument of Croatia. Before gi ving the floor to the Agent of Croatia, the Court
feels the need to remind the Parties again that Pr actice Direction VI provides that where objections
of lack of jurisdiction or of inadmissibility are considered, oral proceedings are to be limited to
statements on the objections.
I now give the floor to His Excellency Mr. Ivan Šimonović, the Agent of Croatia.
ŠMIr.ONOVI Ć:
A. Introduction
1. Madam President, honourable Members of the Court, this is the first time that Croatia
appears before the Court. The Government of the Republic of Croatia has great respect for the
Court’s role in resolving disputes between Stat es and in holding States accountable for their
conduct. The possibility to resort to a highly qualif ied and impartial international court is vital for
the maintenance of international peace, stability and the rule of law. It is an honour to represent
Croatia as Agent before your Court.
B. The importance of this case for Croatia
2. Madam President, Members of the Court, the case Croatia seeks to bring before you
involves genocide, the crime above all crimes. It involves State responsibility for genocide,
politically sensitive relations in south-east Europe and a lot of factual evidence. And this is not just
any evidence ⎯ it is evidence of human sufferings rela ted to the genocide committed in Croatia
from 1991 to 1995.
3. If Croatia could have dealt with the pr oblems related to this case otherwise, it would
certainly have done so, but unfortunately there seems to be no other way. We appeal to the Court’s
understanding and its full awareness that, for the s ubmissions articulated in our Application, this
Court is our last resort.
4. True, the International Criminal Tribunal for the former Yugoslavia has dealt with many
individual atrocities committed during the hostilities. We do not underestimate its contribution.
But in Croatia’s view, these criminal proceedings have failed to clearly demonstrate the overall - 9 -
framework within which individual atroc ities were committed. Perhaps if Miloševi ć’s case had
ended with his conviction and sentence, it might have been different. But it did not. The overall
framework of events, the unique plan of creati ng a Greater Serbia out of territories seized from
Croatia and from Bosnia and Herzegovina through ethnic cleansing of the non-Serb population has
been addressed in some ICTY cases, but it has not been fully revealed. In Croatia’s view,
Milošević’s plan of Greater Serbia, based on occupation and ethnic cl eansing of parts of Croatia
and Bosnia, included planned and systematic use of criminal acts against civilians, amounting to
the practice of genocide where and when convenient (as this Court has already established in the
case of Srebrenica).
5. In pursuing this case, Croatia is not only c oncerned with the past; it is concerned with the
future as well. The establishment of the facts, their proper legal qualification and the establishment
of legal responsibility for the consequences will lay the ground for sustainable peace, stability and
good-neighbourly relations between the Republic of Croatia and Serbia, as well as for the common
European future, invoked by the Respondent yesterday 1.
6. Madam President, Members of the Court, the purpose of my presentation today is to place
our case on jurisdiction and admissibility in its f actual and legal context and to indicate the
presentations you will hear from my colleagues.
7. In reciting the course of events, I will not repeat the developments related to this case as
presented by you, Madam President, as well as the Respondent. However, I cannot help but note
that the diplomatic and forensic twists and turns of the R espondent have placed the Court in a
position of exceptional difficulty.
8. But if I may say so, it would be odd and even bizarre if the Court were to hold in 2007 that
it had jurisdiction over claims of genocide made ag ainst the respondent State in relation to events
on one side of a boundary, yet in 2008 that it lacked jurisdiction over claims made against the same
Respondent in relation to the related events that took place a couple of miles on the other side of
the same boundary.
1
CR 2008/8, p. 20, paras. 16-17 (Varady). - 10 -
C. The three preliminary objections
9. Let me now briefly refer to the Respondent’s preliminary objections to the jurisdiction of
the Court.
(a) Jurisdiction ratione personae
10. The Respondent’s first preliminary objec tion is that the Court lacks jurisdiction ratione
personae. As I have just pointed out, this cannot be right. You cannot have jurisdiction ratione
personae in one year, and lack it the next year in relation to the very same State. You decided the
Bosnian case: you should not refuse to decide the Croatian case as well.
11. My colleagues, Professors Sands and Cr awford, will address the legal issues associated
with your jurisdiction as well as the capacity of the Parties in the proceedings before the Court at
the time of filing the Application. Let me, however, make some remarks on the issue of the factual
connections between the Croatian and Bosnian genocide cases.
[Graphic 1 ⎯ Socialist Federal Republic of Yugoslavia]
12. Madam President, honourable Members of the Court, as you well know, the Socialist
Federal Republic of Yugoslavia (SFRY) consisted of six republics and two autonomous provinces.
On the screen and at tab1 in your folders, they are displayed in different colours. During the
process of dissolution of the SFRY all six repub lics became independent States. In this
presentation I will focus on the interrelated fates of neighbouring States of Croatia and Bosnia and
Herzegovina.
[Graphic 2 ⎯ Croatia and Bosnia and Herzegovina]
13. Croatia and Bosnia and Herzegovina are not only neighbours: due to historical
contingencies, as you can see now on the screen, at tab2, they share a long border and are
interdependent in terms of transport, economy, pol itics and security. It is no surprise that during
their history the fates of Croatia and Bosnia and Herzegovina have been intertwined. This was also
the case during the dissolution and accompanying conflict in the former Yugoslavia, when they
were victims of the same aggression and attempts to seize parts of their territory and to include
them into the so-called “Greater Serbia”. The occupied parts were subjected to ethnic cleansing
that on certain occasions rose to the level of genocide committed with the relevant intent. - 11 -
14. What I will present now is a short case study that clearly demonstrates that genocides in
Croatia and Bosnia and Herzegovina were two sides of the same coin. If the Court accepted its
jurisdiction for Bosnia and Herzegovina, it should accept it for Croatia as well.
[Graphic 3 ⎯ Area of responsibility of Banja Luka Corps]
15. The territory of SFRY was under the responsibility of different segments of the JNA ⎯
Yugoslav national army. The areas of responsibility did not coincide with the borders of the
Republics. On the screen and at tab3 you can see the area of responsibility of the JNA’s Banja
Luka corps, marked orange. It covered parts of Croatia and of Bosnia and Herzegovina.
[Graphic 4 ⎯ Prisoners from Hrvatska Kostajnica, Croatia, detained in Manjača, Bosnia and
Herzegovina]
16. The genocidal activities in the area of res ponsibility of the JNA’s Banja Luka corps have
been widely reported. The border between Croatia and Bosnia did not represent any obstacle in
this respect.
17. After the Banja Luka corps occupied Hrva tska Kostajnica, Croatia, in September 1991,
the surrounding area was gravely affected. For ex ample, in the neighbouring village of Kostri ći,
literally all villagers, the youngest being 3, the old est being 93, were murdered solely because they
2
were Croats . In the Memorial we have also indicated that some prisoners from Hrvatska
Kostajnica, Croatia, were detained in a JNA prisoners’ camp in Manja ča, Bosnia Herzegovina, as
3
demonstrated on the screen, at tab4 . In spring 1992, when Bosnia also became the victim of
Serbian aggression, Croatian detainees were jo ined by Croats and Muslims from Bosnia and
Herzegovina. They were molested and often killed by the same perpetrators, in the same period of
time, as victims of the same overarching plan of creating Greater Serbia cleansed of non-Serbs,
whether Croats from Croatia, or Croats and Muslims from Bosnia.
[Graphic 5 ⎯ Prisoners from Prijedor, Bosnia and Herzegovina, killed and buried in
Hrvatska Kostajnica, Croatia]
18. Genocidal activities occurred in the area of responsibility of the Banja Luka corps,
especially in the Prijedor area, along the border w ith Croatia. As demonstrated on the screen and
on tab 5, in spring 1992, people fleeing from genocide in this area of Bosnia and Herzegovina were
2
Memorial of Croatia (MC), Vol. I, 2001, p. 260.
Ibid., p. 259. - 12 -
captured and murdered in Hrvatska Kostajnica, an occupied part of Croatia within the area of
responsibility of the Banja Luka corps.
[Graphic 6 ⎯ Places of genocidal acts in the area of r esponsibility of Banja Luka Corps on both
sides of the border]
19. Tab6 shows sites of atrocities co mmitted between 1991 and 1995 in the area of
responsibility of the Banja Luka corps on both sides of the border 4. They were committed in the
area of responsibility of the same military unit, successively or even simultaneously, and are
attributable to the same Respondent.
20. Madam President, Members of the Court, for all these reasons, it would be very strange
to treat the jurisdiction of the Court differently for Croatia and Bosnia and Herzegovina. The point
concerns not just the merits: it also concerns the underlying jurisdictional position. It is true that
the Court decided on jurisdiction in its Judgment of 27 February 2007 on the basis of res judicata.
But to decide that an issue is res judicata between the two States is not to accept, or even to hint,
that the 1996 decision was wrong in substance. The Court has not so decided. It would ⎯ with all
respect ⎯ be wrong to decide that now. It would be wrong for you to decide that Bosnia and
Herzegovina exclusively had the pr otection of the Genocide Convention ⎯ that paradigm of a
universal convention ⎯ during the 1990s. It would cast doubt not only on the correctness of your
decisions of 1996 and 2003, but would also undermine that of 2007.
21. Moreover, it would do so exclusively for th e benefit of the respondent State, and would
not further any broader international public policy. Consistently throughout the 1990s the
Respondent ⎯ the very State which made the declaration of 27 April 1992 ⎯ accepted that it was
a party to the Genocide Convention and that it was bound by its obligations under the Convention.
Now it claims all that was false and without effect, disavowing its own former conduct.
(b) Responsibility for the acts or omissions prior to 27 April 1992
22. Madam President, honourable Members of the Court, the Respondent’s second objection
is that the Application is inadmissible as far as it refers to acts or omissions prior to 27 April 1992.
First of all, I would like to make clear that th is objection does not relate to numerous acts and
4
Identification of sites is based on written pleadings of Croatia and Bosnia and Herzegovina. - 13 -
omissions described in the Memori al that occurred on the occupied territories after 27 April 1992.
The same applies to the Respondent’s failure to bring to trial those responsible for crimes that have
occurred prior to this date.
23. Secondly, in Croatia s view, this objecti on does not relate to the admissibility of the
Application, but to the merits, namely whether Serbia is responsible for the acts and omissions
listed in the Memorial or not, and therefore should be examined at the later stage of proceedings.
24. Thirdly and most importantly, the fact that forces under the same political leadership and
under the same military command and control have been changing names cannot be a ground to
avoid State responsibility. The Respondent has already indicated the transformation of names and
legal frameworks of the present-day Serbia. Without repeating, I would just like to stress that the
State responsibility for acts of this gravity cannot be avoided by a mere change of name.
25. Madam President, Members of the Court, Professor Crawford will deal tomorrow with
the legal elements related to the second prelimin ary objection. Today, I would like briefly to
address some important factual elements. Since the link between the present-day Republic of
Serbia and the FRY is unchallenged by the Res pondent, I will concentrate on the continuity of
control between the rump SFRY and the FRY on behalf of the same political group: namely,
Mr. Milošević and his collaborators.
26. In our Memorial we clearly demonstrated the process of Mr.Miloševi ć’s assuming
5
control over the rump Socialist Federal Republic of Yugoslavia and its armed forces . The
continuity of political and military control between the rump SFRY and FRY is also reflected in the
personal continuity of the political and military leaders.
27. The Respondent makes the argument that rump Yugoslavia was not Serb-dominated,
because in 1991 the President of the collective Presidency, Mr.Stipe Mesi ć, and the
Prime Minister, Mr. Ante Marković, were Croats 6. The following facts ⎯ addressed in the
Memorial ⎯ illustrate their real position:
5
MC, Vol. 1, 2001, Chaps. 2 and 3.
6Preliminary objections of the Fede ral Republic of Yugosla via, 2002, pp.101 and 110. See also CR2008/8,
p. 58, para. 11 (Djerić). - 14 -
⎯ On 11 September 1991, Mr.Mesi ć ordered the JNA, already involved in hostilities against
Croatia, to return to their barracks. When this formally binding order of the Supreme
Commander of the Armed Forces was ignored, the President of the Federal Executive Council
Marković demanded the resignation of the Federal Defence Secretary Kadijevi ć. Nothing
happened 7 .
⎯ Both Mesić and Marković were targeted when meeting the President of Croatia in Zagreb on
7October 1991. The rocket attack came from a JNA warplane. After the attack, which they
survived by chance, they were unable to establish responsibility for the attack, and soon they
8
withdrew from their high, but futile, offices .
⎯ To add insult to injury, in October 1991, Mr. Mesić was denied his presidential salary as well
as his per diem when attending an in ternational peace conference in The Hague 9. So much for
his effective control!
28. In our written response to the Respondent’s objections, we have further demonstrated the
continuity and intensity of control of the same political and military forces within rump SFRY and
10
FRY . The evidence produced in the ICTY cases fu lly confirms our findings. At least since
October 1991, the Serbian leadership headed by Mr.Miloševi ć had effective control over all
11
Serbian forces involved in the aggression and occupation of the Republic of Croatia .
(c) Admissibility and relevance of Croatia’s submissions
29. Madam President, Members of the Court, the third preliminary objection of the
Respondent is that some of the Applicant’s specific submissions are inadmissible and moot.
30. I wish that at least some of our submissions were moot, but they are not. Discussing this
issue rightly belongs to the merits, but since it has been raised and extensively elaborated by the
Respondent, I feel obliged to address it at least briefly.
7
MC, Vol. 1, 2001, pp. 64-65.
8WOC, 2003. p. 30.
9MC, Vol. 5, App. 4, p. 87.
10WOC, 2003. pp. 19-31.
11
Babić, IT-03-72-S, Trial Chamber J udgment, 29 June 2004, para.14, Milošević, IT-02-54-T, transcript,
3Dec.2002, pp.13737, 13740 and 13744, Milošević, IT-02-54-T, Second Amende d Indictment, 28 July 2004,
paras. 25-26, Martić, IT-95-11-T, Judgment, 12 July 2007, paras. 141-142. - 15 -
31. It is true that the Serbian authoriti es have shown some impr ovement related to the
prosecution of war crimes, revealing information on missing persons, and in restitution of stolen
cultural property. But besides being too late, it is too little.
32. Most of the well-documented crimes referr ed to in the Memorial have still not been
prosecuted. Out of 74 perpetrators of various ge nocidal acts explicitly mentioned in our Memorial
under their full names and names of witnesses and victims of their crimes, how many of those of
them who live in Serbia have been prosecuted?
33. To the best of my knowledge, just a handful, if we include those prosecuted for the
Lovas massacre in the process that started just a m onth ago. It seems plausible to think that the
scheduling of these oral hearings has been a powerful incentive to start with the Lovas case. That
is good, but besides being too late, it is too little. These few that have been prosecuted in Serbia
are all low-ranking members of the armed forces. Of course, they have not been charged for
genocide. But a number of perpetrators mentioned in the Memorial have been charged for
genocide by the Croatian authorities, but are out of their reach, presumably in Serbia.
34. Madam President, Members of the Court, the Respondent states that the Croatian request
to provide information as to the whereabouts of Croatian citizens missing as a result of acts of
genocide has become moot. According to the R espondent, it is “moot beca use information which
is available to Serbia has already been provided to Croatia” 12.
35. It is rather insensitive to the feelings of the families of the missing persons to proclaim
that this request is moot. The Republic of Cr oatia is still looking for 1,185 missing persons, for
whose disappearance the Serbian forces, under the command and control of Mr.Miloševi ć, were
responsible.
36. It is true that, as the Respondent proudly reports, after 2002 exhumations in Serbia have
finally begun. Ever since 1998, Croatia has be en requesting that, on the basis of bilateral
agreements, but the exhumations only began after Croatia submitted its Memorial in 2001, and they
are proceeding very slowly.
12
CR 2008/9, p. 25, para. 65 (Zimmerman). - 16 -
37. The Respondent is also right that ther e are bilateral and multilateral instruments and
13
mechanisms aimed at tracing missing persons and their whereabouts . The problem is not lack of
their existence, but lack of their efficiency.
38. Finally, it is really unclear how the Res pondent can insist that all information which is
available to Serbia has been provided to Croatia 14taking into account the following:
⎯ after many years of negotiations, forensic protocols have finally been revealed to Croatia, but
only for the Vukovar area. For all other occupied areas of Croatia, we did not receive a single
protocol;
⎯ documentation of the Vukovar Hospital, captured in 1991, has still not been returned. After the
existence of this documentation was unintentionall y exposed by Serbian TV cameras, not even
the Respondent denies its existence;
⎯ at the meeting of the commissions to trace missing persons, ICTY proceedings are being
systematically used as an excuse to provide relevant documentation.
39. In respect of cultural property, it is true that more than 25,000 objects have been returned
from Serbia. However, an even larger number of objects, 27,942, have not yet been returned. This
fact alone speaks enough not only of the extent of the war damages, but on the level of
co-operation in this matter, as well.
40. Madam President, Members of the Court, let me conclude on the third preliminary
objection. Our submissions are neither inadmissible, nor moot. To the contrary, the Genocide
Convention continues to be violated by the Respondent every day: by failing to punish those
responsible, by not revealing information on missing persons, and by not returning cultural
property taken from Croatia during its occupation.
D. Outline of Croatia’s pleadings
41. Let me finally outline for the Court th e manner in which we propose to answer the
Respondent’s arguments of Monday.
13
CR 2008/9, p. 26, paras. 65 et seq.(Zimmerman).
1CR 2008/9, p. 25, para. 65 (Zimmerman). - 17 -
42. First, my colleague Ambassador Andreja Metelko-Zgombi ć. She will show why Croatia
was entitled to rely ⎯ as it did ⎯ on the reasoning of this Court in the 1996 decision on
preliminary objections.
43. She will be followed by Professor Sands who will demonstrate that the Respondent was
at all relevant times bound by the Genocide Conventi on in its entirety, including ArticleIX. He
will clearly show that the Genocide Convention does not cease to apply when it is needed most ⎯
as the Respondent suggests. That will, Mada mPresident, conclude our presentations this
afternoon.
44. Tomorrow, ProfessorCrawford will show that ⎯ on the basis of the Genocide
Convention as the applicable law ⎯ the respondent State is responsible vis-à-vis Croatia ⎯ as it
was vis-à-vis Bosnia and Herzegovina ⎯ for any breaches of the Convention which have occurred
since the beginning of the conflict which took place in Croatia. In effect, ProfessorSands will
show the continuity of the applicable law; Prof essor Crawford, the continuity of the Respondent’s
responsibility for breaches of that law.
45. Then we will deal with the issues of access to the Court, addressing Article35,
paragraphs 1 and 2, on which the Respondent has been conspicuously silent. Professor Sands will,
with your permission, MadamPresident, return to show that, though against the will of other
successor States, including Croatia, the Respondent undoubtedly had a special status within the
United Nations throughout the 1990s. This sui generis status may not have amounted to full
membership of the United Nations, but it was neve rtheless sufficient to give it access to the Court
in accordance with the applicable instruments and your own practice at that time.
46. Finally, ProfessorCrawford will argue that the Genocide Convention was ⎯ and still
is ⎯ a “treaty in force” within the meaning of Article 35, paragraph 2, of the Court’s Statute. He
will also show that ⎯ whether or not other arguments are correct ⎯ all the conditions for the
Court’s jurisdiction were established as at 1Nove mber2000, and that the Court’s jurisdiction,
established at the latest at that point in time, was not lost as a result of any subsequent
development.
47. Madam President, honourable Members of the Court, thank you for your attention. - 18 -
48. I ask you now to call on my colleague, Chie f Legal Adviser in the Ministry of Foreign
Affairs, Ambassador Metelko-Zgombić, to continue Croatia’s presentation.
The PRESIDENT: Thank you very much, DrŠ . imonović. I do now call
Her Excellency Ambassador Metelko-Zgombić.
MMETELKO-ZGOMBI Ć:
RELIANCE ON THE B OSNIA AND H ERZEGOVINA V SERBIA CASE
1. Madam President, honourable Members of the Court, may it please the Court, it is my
honour and privilege to appear before you on this first occasion to represent the Government of the
Republic of Croatia in this important matter.
1. Introduction
2. My task today is to demonstrate that the essential facts of this case are so closely
intertwined with those that arose in the case brought by Bosnia and Herzegovina (Bosnia case) that
there can be no justification in law or policy fro m departing from this Court’s finding that it had
jurisdiction in that case. Contrary to the assertion of the Respondent that we heard yesterday, the
decisions which you adopted in the Bosnia case in 1996, in 2003 and in 2007 are highly relevant
for the present proceeding and can provide guidance for resolution of this case.
3. Madam President, the factual circumstces in these two cases are deeply connected.
There was a single theatre of war; there were very close geographical, political, military and
logistical links. It would be anomalous if these closely related events on both sides of the border
were to be treated differently for jurisdictional purposes.
4. The legal circumstances are also similar. There is the same Respondent; almost the same
period of time; the same basis of claim; the same basis for jurisdiction, the same absence ⎯ at the
relevant time ⎯ of any jurisdictional reservation. No other case heard before this Cou
rt has been
so interrelated and connected with the present case as is the Bosnia case.
5. The close connection can be seen in the temporal dynamics of this action taken in these
two cases before this Court. The joint statemen t between the two Agents on their co-operation in - 19 -
the proceedings before this Court was signed in 2000 15. Croatia has paid attention to the decisions
of the Court at each phase of the Bosnia case and has acted accordingly. When Croatia filed its
Application and its Memorial, and at all times, it relied on the decisions of this Court in the Bosnia
case. Consistency, legal security, predictability requ ire that the Court adopt the same approach in
these two cases.
6. And finally, the Respondent did not cha llenge its status under the Genocide Convention
until after Croatia filed its Memorial. Only then did its approach change. Now the Respondent
attempts to misuse its admission to the United Nations in 2000, which was a long-awaited and
expected fact, to avoid its prior responsi bility under the Genocide Convention to which ⎯ as
Professor Sands will show ⎯ it was at all relevant times a party.
7. As a number of Members of this Court indicated in a joint declaration in the 2004 NATO
cases, consistency is the essential of judicial reasoning. This is especially true, as those judges put
it, “with regard to closely related cases” ( Legality of Use of Force (Serbia and Montenegro v.
Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 330: joint declaration of
Vice-President Ranjeva and Judges Guillaume, Hi ggins, Koojimans, Al-Khasawneh, Buergenthal
and Elaraby). Croatia respectfully invites the Cour t to adhere to this principle in this “closely
related” case.
2. Similarity in factual circumstances
8. The factual circumstances of the present case belong to the merits. But in this stage of the
proceeding, it is appropriate to draw the attention of the Court to some of the elements which make
these two cases such “closely related” ones.
9. Both States, Croatia and Bosnia and Herzegovina, were victims of the same aggression
and suffered from the same pattern of actions against them. After declaring their independence in
1991 and in 1992 they were attacked by the forces under the same command and control,
consisting of remnants of the JNA under the control of the Respondent, as well as local Serbian
territorial defence units under the same control. Self-proclaimed Serbian entities within Croatia ⎯
the so-called Republic of Srpska Krajina ⎯ and Bosnia and Herzegovina ⎯ the so-called
15
Joint Statement by Ambassador M uhamed Sacirbey and Am bassador Ivan Simonovic, 12June2000, MC,
Ann. 13. - 20 -
Republika Srpska ⎯ collaborated on all issues. They ignore d international borders: Croatia and
Bosnia and Herzegovina became parts of a single large theatre of war.
3. The similarity in legal circumstances
T1he. Bosnia and Croatia cases also have such close legal connections as to make them, in
effect, juridically indistinguishable.
11. Croatia filed its Application in July 1999, and submitted its Memorial on 14 March 2001.
By those dates the Court had long affirmed its jurisdiction in the Bosnia case. At both provisional
measures phases, the Court concluded that it had prima facie jurisdiction, both rationae personae
and rationae materiae, under Article IX of the Genocide Convention. The jurisdiction of the Court
under Article IX of the Genocide Convention was confirmed in the 1996 Judgment, which enabled
the Court to proceed to consider the merits of the case.
The Judgment of 1996 (Bosnia case)
12. In the oral pleadings yesterday, the Respondent admitted ⎯ as it had to ⎯ that in the
1996Judgment the Court already concluded that the Respondent was bound by the Genocide
Convention. The argument that this issue was not raised by the Parties, that is by the Respondent,
is without any value. The FRY as the Respondent could have done it if it considered it necessary.
Instead, taking no action, the Respondent confirmed its agreement with the then conclusion of the
Court. And that is, among other reasons, why this finding of the Court in 1996 has particular value.
Although any decision adopted by the Court betw een different parties cannot be regarded as res
judicata, your findings are highly relevant. It is impossible to conceive that the same Respondent
is considered to be bound by the Genocide C onvention in one case and not in the other. You
concluded that the Genocide Convention bound the respondent State. In so doing you relied on the
formal declaration adopted at the time of the pr oclamation of the Federal Republic of Yugoslavia,
on 27 April 1992.
13. In addition, you pointed out that the inte ntion of the Respondent to remain bound by the
international treaties to which the former Y ugoslavia was party was confirmed and formally
notified to the United Nations Secretary-Genera l, who serves as the depositary of the United
Nations treaties, by the officia1 Note of 27 Apr il 1992 from the Permanent Mission of Yugoslavia. - 21 -
You thus concluded that the Respondent was a party to the Genocide Convention on 20March
1993, the date on which the Application in the Bosnia case was filed.
14. The Court also determined the scope of its jurisdiction ratione temporis. The Court
observed that the Genocide Convention ⎯ and in particular ArticleIX ⎯ did not contain any
clause the object or effect of which was to limit the scope of its jurisdictionratione temporis, and
the parties had made no reservation to that end. That is an important finding for this case: the
Court ruled that it had jurisdiction to give effect to the Genocide Convention as regards acts
occurring since the beginning of the conflict in Bosnia and Herzegovina. That finding alone should
dispose of the Respondent’s second preliminary objection.
15. After the 1996Judgment and before any othe r changes of law or fact had taken place,
Croatia filed its Application in this case on 2 Ju ly 1999. Nothing changed between 20 March 1993
and 2 July 1999. If this phase of the proceedings had been decided then, it may be presumed that
the Court would have adopted the same approach as it did in 1996.
4. Intervening circumstances
16. What has happened since then? Nothing that was entirely unexpected. As you well
observed, the only thing that remained unknown in 1996 was if and when the Respondent would
apply for and obtain membership in the Unit ed Nations. So, pursuant to the relevant
GeneralAssembly and Security Council resoluti ons, the FRY was admitted to the United Nations
in November 2000, as a new member State.
17. This long-awaited fact was, however, used by the Respondent to initiate various actions
before this Court. Based on this new devel opment, the Respondent filed an Application for
revision of the 1996Judgment in the Bosnia case and, subsequently, in 2002 it filed certain
preliminary objections in the present proceedings.
The Judgment of 2003 (the Bosnia case)
18. Madam President, in February 2003, the Court rejected the Respondent’s Application for
revision of its Judgment in 1996. The Court concluded that no facts within the meaning of
Article 61 of the Statute had been discovered since the adoption of the 1996 Judgment. - 22 -
19. But it was not all about revision, as the Respondent asserted yesterday. The Court
carefully examined the status of the Respondent in the light of the new developments ( Application
of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment of 26February 2007, para.109), and the
Court’s findings are pertinent to the present proceedings.
20. This was the first time that the Court had the opportunity to reconsider its jurisdiction in
the light of the admission of the Respondent to the United Nations. In fact, the Court was invited
to do so by the Respondent.
21. The issue of access to the Court is one on which the Court should be satisfied throughout
the whole proceedings, “even if the questi on has not been raised by the parties” ( ibid., para. 122),
as you recalled in the 2007Judgment. And this is exactly what happened in 2003. The situation
was thoroughly examined and you found no grounds to decline jurisdiction.
youIr22. Revision Judgment it was noted that when the 1996 Judgment was handed down,
the situation obtained was that created by General Assembly resolution47/1. The Court recalled
that even at that time, in 1996, the Court was well aware of the ambiguous, sui generis, status that
the Respondent enjoyed with the United Nati ons. You recalled that General Assembly
resolution 47/1 did not affect the Respondent’s right to appear before the Court or to be a party to a
dispute before the Court. You noted that it did not affect the position of the Respondent in relation
to the Genocide Convention as well ( Judgment, I.C.J. Reports 2003 , p. 31, para. 70). Serbia now
challenges that ruling, by the back door.
23. In your 2003 Judgment you “froze” the Respondent’s sui generis situation, which existed
in the 1992-2000 period until its admission to the United Nations, and you made a firm point that:
“General Assembly resolution 55/12 of 1 November 2000 cannot have changed
retroactively the sui generis position which the FRY found itself in vis-à-vis the
United Nations over the period 1992 to 2000, or its position in relation to the Statute
of the Court and the Genocide Convention.” (Ibid., p. 31, para. 71.)
24. It is true, as we heard yesterday from the Respondent, that the 2003Judgment did not
resolve the status of the Respondent in relation to the United Nations. But it is equally true that the
2003Judgment made it clear that only what is relevant for the Respondent’s status in the - 23 -
1992-2000period was the sui generis status of the Respondent which existed and that no later
developments can influence that status.
25. In this way, you confirmed that the Res pondent could appear before the Court between
1992 and 2000 and that this position cannot have been changed by its later admission to the United
Nations in 2000. With great respect it is di fficult to see on what basis you could now adopt a
different approach in respect of the Application filed by Croatia during that earlier period. The
facts and the law are identical.
The Judgment of 2004 (the NATO bombing cases)
26. In parallel to the proceedings in Bosnia and Croatia cases in which then the FRY was the
Respondent, the FRY itself initiated a number of proceedings based on the Genocide Convention
against some NATO member States. But it was clear as early as the filing of the Application in
1999 that the FRY was incapable of establishing any legal basis on which the Court could exercise
jurisdiction.
27. The Application of the FRY in the NATO cases could indeed be considered a gross
attempt to abuse the Genocide Convention. The fact that the FRY as the Applicant itself raised the
issue of the Court’s jurisdiction in those cases is notable: no applicant State had ever before made
a jurisdictional objection to its own Application! But that is actually what happened in that case.
28. Madam President, I will not discuss the content of the 2004 Judgments; this will be dealt
with by Professor Crawford tomorrow.
The Judgment of 2007 (Bosnia merits)
29. However, I should say something briefl y about your Judgment of February2007 in the
Bosnia case. You confirmed your previous findings and decisions on jurisdiction adopted earlier in
that case. You recalled that during this time the FRY enjoyed a sui generis status which included
the right of access to the Court, and that this stat us could not be changed retroactively: thus you
affirmed your position on jurisdiction.
30. But you said much more in your 2007Judgment. You emphasized that no principle of
res judicata would prevent the Court to re-examine whet her a State may properly come before the
Court if you had held it necessary. You explicitly stated that: - 24 -
“[I]f the Court considers that, in a particular case, the conditions concerning the
capacity of the parties to appear before it are not satisfied, while the conditions of its
jurisdiction rationae materiae are, it should, even if the question has not been raised
by the parties, find that the former conditi ons are not met, and conclude that, for that
reason, it could not have jurisdiction to decide the merits.” ( Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment of 27 February 2007, para. 122.)
Having said that you proceeded to the merits.
31. By this explicit wording you both took a position on the Respondent’s right to access the
Court and upheld your previous position that th e Respondent enjoyed the access to the Court.
Otherwise, you would not have continued with the merits.
32. In this way, in its 1996 Judgment the Court perceived the Respondent to be in a position
to appear before the Court, but confirmed the Respondent’s right to have access to the Court in its
2007 Judgment.
33. Croatia respectfully submits that the Cour t’s ratification of its earlier approach in the
2007 Judgment is highly relevant to the present case.
The FRY’s admission to United Nations membership in 2000
34. I come now to the FRY’s submission as to the consequences of its admission to the
United Nations, as a new Member on 1 November 2000. According to Serbia that change brought
significant consequences. It is said to have change d the facts, so that the FRY did not continue the
personality of the SFRY; so that the FRY was no longer to be treated as a Member of the United
Nations before 1 November 2000; so that Serbia could not be treated as having been a party to the
Court’s Statute; so that it may be said that Se rbia was not a party to the Genocide Convention.
Serbia has created by itself, through its change of political position, and with allegedly retroactive
effect, the very conditions on the basis of which it now attempts to show that the Court has no
jurisdiction in this case. The difficulties are self-evident.
(a) The FRY’s United Nations membership in 2000 has no effect on the Respondent’s status of
the party to the Genocide Convention
35. Madam President, with such a changed pos ition and by claiming that the Court had no
jurisdiction in this matter lacking any basis in the Genocide Convention, the Respondent was doing - 25 -
nothing less than seeking to escape responsibility for its actions committed in recent history which
come within the scope of the Genocide Convention.
36. Madam President, Members of the Court, if ever a population needed to be protected by
the Genocide Convention, it was in times such as those that pertained from late 1991.
Professor Sands will return to this point. Let me si mply say this now: how could it be justified to
conclude that the Court would have jurisdiction to entertain a dispute in relation to facts arising on
one side of the border, the Bosnian side, but th at it would lack jurisdiction over related facts
occurring at the same date just a few kilometr es away, on the Croatian side. One has only to
imagine this situation ⎯ this situation which actually occurred ⎯ to recognize the dangers of
proceeding down this path.
37. The new, post-2000 attitude of the Responde nt also runs contrary to the Respondent’s
own actions and behaviour. I can give three examples. First, in the 1992-2000 period the
Respondent acted as a party to a number of the treaties to which the former SFRY was a party,
including the Genocide Convention; indeed it insisted to be treated as such in various international
conferences and fora. Second, the Respondent file d a counter-claim on the basis of the Court’s
finding of jurisdiction in the Bosnia case on the basis of the Genocide Convention. Third, the
Respondent even filed a number of applications against NATO member St ates, in 1999, claiming
that the Court had jurisdiction in these cases on th e basis of the Genocide Convention. Later,
having changed its political position and informing the Court that it no longer sought to rely on
those grounds, it chose not to discontinue the cases but, rather, to ask the Court to decide on its
jurisdiction.
38. Madam President, the FRY’s formal admission as a Member of the United Nations in
2000 could not affect its legal stat us with regard to the SFRY’s treaty obligations. The FRY was
admitted as a new Member of the United Nations, not as a newly independent State which is free to
choose the treaties it wants to be bound by. The R espondent adhered to this principle in all other
treaties except the Genocide Convention. Its purported accession to the Genocide Convention,
with a reservation on Article IX, can have no effect ⎯ as was stated in the objection deposited by
Croatia with the Secretary-General. Certainly it can have no retroactive effect. With the
dissolution of the former Yugoslavia, the FRY assumed the legal obligations of the former State, as - 26 -
all other successor States as the former SFRY did. This fact was unequivocally and
unconditionally confirmed in the diplomatic Note of 27April1992 communicated to the
Secretary-General. Any possible formal insuffi ciencies of this Note to the United Nations, as
alleged by the Respondent, if any ex isted, have been made irrelevant by the subsequent conduct of
the Respondent.
(b) FRY’s admission to the United Nations did not affect its sui generis status from 1992 to 2000
39. In its oral pleadings, the Respondent claimed that acceptance of the FRY into
membership of the United Nations ended the FRY’s sui generis position in the United Nations and
made clear that at the time of the filing of Croatia’s Application Serbia was not a Member of the
United Nations, not on that basis party to the Statute of the Court and consequently has no access to
the Court. Those later developments should, in the Respondent’s view, have retroactive effect.
40. It is true that the status of the Resp ondent in the 1992-2000 period was controversial.
The Respondent said nothing new when it cited th e content of the joint letter of 27May1999,
signed by all other successor States of the former SFRY. This fact was also well known to the
Court. The Court noted in the 2003 Judgment th at other successor States “consistently objected to
the FRY’s claim that it continued the State and th e international legal and political personality of
the former SFRY” ( Judgment, I.C.J. Reports 2003 , p.18, para.35). Croatia, together with the
other successor States, objected to any attempt of the Respondent to be treated differently from the
other successor States; as the Court may be aware, those attempts continue in other forums, as may
be convenient. By contrast Croatia’s consistent aim was to achieve equal treatment of all successor
States of the former SFRY.
41. However, what is really important in this context is that none of these actions resulted in
clarifying the Respondent’s status in 1992-2000. Due to the special politi cal circumstances, the
Respondent continued to enjoy at that time a sui generis status. This is something which the
Respondent would now like to forget. This stat us enabled it to enjoy certain attributes of the
United Nations membership, including access to th e Court at the time. This is evident from
General Assembly resolution 47/1 and from the letter of the Legal Counsel of 29 September 1992
(ibid., p. 16, paras. 29-30; p. 31, para. 70), from the conclusions of this Court as well as from the - 27 -
very practice of this Court, which on num erous occasions allowed the appearance of the
Respondent before it.
42. This is a well-established fact and no later developments can change it. We can only
agree and support the conclusions of the Cour t as to the non-retroactive effect of these
developments throughout its decisions in 2003 and 2007.
5. Conclusion
43. Madam President, Members of the Court, fo r all the reasons I have referred to, Croatia
respectfully submits that the Court should reject the preliminary objecti ons filed by Respondent
and establish its jurisdiction in this case, as it did in thBosnia case. I invite you now to call
Professor Sands to the Bar. Thank you.
The PRESIDENT: Thank you, Ambassador Metelko-Zgombi ć. I do now call
Professor Sands.
Mr. SANDS:
I.INTRODUCTION
1. Madam President, Members of the Court, it is a privilege for me to appear before you
today on behalf of the Government of Croatia, in this important case.
2. My task at the close of this afternoon is to show that the respondent Stat
e ⎯
Serbia ⎯was, at all relevant times, bound by the entirety of the Genocide Convention. That is, of
course, a conclusion that should flow inexorably from a succession of judgments and orders of this
Court over a period of nearly 15 years, and it may seem odd that we have to return to this issue at
all in this case. But we do, for the reasons we heard yesterday. Serbia has put the relationship
between the Respondent and the Convention at th e very heart of this case. “The issue of
jurisdiction”, Serbia’s Agent, Professor Varady, told the Court yesterday, “boils down to one
16
question: that of the link between the Respondent and the Genocide Convention” . Listening
yesterday, it became abundantly clear what is Serb ia’s real target in these proceedings: it is the
16
CR 2008/9, p. 34, para. 11 (Varady). - 28 -
Court’s recent Judgment in the Bosnia case. It wants a judgment in this case that will allow it to
minimize, neutralize and ⎯ eventually ⎯ abandon the Bosnia Judgments of 2007 and 1996 as an
anomaly.
3. So our submission on the Genocide Conve ntion is straightforward: the Genocide
Convention was in force between Croatia and th e FRY on 2July1999, and its provisions were
applicable to the territory of Croatia at all materi al times, from “the beginning of the conflict” and
in relation to all acts of the FRY violating the Convention’s strict requirements.
4. The essential facts are clear. In all material respects, as has been said, this case is identical
to the Bosnia and Herzegovina case, in which the Court found, in 1996 and again in 2007, that it
had jurisdiction and that there was no bar to access . The consequences of a different approach
now ⎯ for the Convention, for the victims, for the international rule of law, and for this Cour⎯
needs no elaboration.
II.THE GENOCIDE CONVENTION WAS IN FORCE FOR BOTH P ARTIES
AT ALL RELEVANT TIMES
5. The temporal issue is clear: the Convention was continuously in force for both Parties at
all relevant times. Continuity is a sine qua non if the Convention’s objectives are to be achieved.
The Court’s approach, as long ago as 1951, remains very relevant ( Reservations to the Convention
on the Prevention and Punishment of the Crime of Genocide , Advisory Opinion, I.C.J. Reports
1951, p.15 . The Convention is not just an ordinary instrument, that can wane in or out of
application in moments of great turmoil and trauma. Its Article 1 confirms an existing obligation,
that genocide is an international crime to be prevented. In 1951, the Court concluded that it was
the firm intention of the United Nations “to condemn and punish genocide” because it shocks the
conscience of mankind. It was a Convention, said the Court, for which “one cannot speak of
individual advantages or disadvantages to States, or of the maintenance of a perfect contractual
balance between rights and duties” (ibid., p. 23). And, of course, in that Opinion, the Convention’s
principles were recognized as binding on States, “even without any conventional obligation”. This
1951 Opinion has been cited at length and frequently in the Court’s Orders and Judgments of 1993,
1996, 2003 and 2007 (see, inter alia, I.C.J. Reports 1993, p.23, para.49; I.C.J. Reports 1996 ,
pp.611-612 and 616; I.C.J. Reports 2003 , p.29 and the Application of the Convention on the - 29 -
Prevention and Punishment of the Crime of Genocide, Judgment of 26 February 2007, paras.161
and 194). There can be no doubt about the special importance of the 1948 Convention, and the
need for its broadest possible application, over time and in space.
6. The Genocide Convention was in force, without reservation, for both States, at all relevant
times. Serbia’s contention ⎯ that the Court has no jurisdic tion because the FRY only became a
party to the Genocide Convention by its “instr ument of accession” of 12March2001, with a
reservation to Article IX ⎯ is deeply unattractive. Unattrac tive because it ignores what the Court
has said; unattractive because the claim appears motivated by the intent of circumventing the
Convention’s applications when it was needed most. In objecting to the FRY’s purported “act of
accession”, Sweden made the point that the reserva tion to Article IX was “too late” and “null and
void” and that is surely correct.
7. The crucial date, for the purposes of this juri sdiction phase, is 2 July 1999. On that date
Croatia and the FRY were both bound by the totality of the Genocide Convention including
Article IX. They were bound as successor States to the SFRY from the date of its dissolution and
nothing the FRY did after 2 July 1999 could change that.
8. The chronology is clear. The SFRY signed the Genocide Convention on
11December1948. On 29August1950 it deposite d its instrument of ratification, without
reservation. From that day on the Convention applied to the entire territory of the SFRY, including
all of what was to become the FRY (Serbia) and Croatia. So long as the SFRY continued to exist,
it remained bound by the terms of the Genocide Conve ntion. From the time of its dissolution the
emerging successor States became bound.
9. Croatia succeeded to the Genocide Convention by notification of succession dated
12 October 1992, with effect fro m 8 October 1991, it was when Croatia assumed responsibility for
its territory. The intention behind that notification was to confirm the avoidance of any gap ⎯ in
time or in place ⎯ in the Convention’s application 17. That period, the autumn of 1991, was also
the time when Mr.Milosevic assumed control of ⎯ and responsibility for ⎯ rump Yugoslavia,
that is fully set out in Croatia’s Memorial. Ov er the next seven years, there were no material
17
Bosnia-Herzegovina, Slovenia, and the Former Yugoslav Republic of Macedonia made similar notifications. - 30 -
changes of fact or law. No State, not even the Respondent, objected to Croatia’s succession to the
Convention. As this Court has noted in the Bosnia and Herzegovina case, there is nothing that
impedes a State from becoming a party to the Convention by means of succession ( Application of
the Convention on the Prevention and Punishme nt of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996(II) , p.611,
para.20, and p.612, para.24; see also, sep arate opinion of JudgeParra-Aranguren, p.656,
para. 2).
10. On 27April1992, the FRY made an important proclamation. It stated that the FRY
“continuing the State, international legal and politi cal personality of the Socialist Federal Republic
of Yugoslavia, shall strictly abide by all the commitments that the Socialist Federal Republic of
Yugoslavia assumed internationally”. Professo rZimmerman now said yesterday that the
declaration should have no effect because it lacked form. It was issued by the wrong people, or by
the wrong body 18. This is a truly curious argument. The decision to honour the SFRY’s
international treaties was confirmed by an offi cial Note from the Respondent’s Permanent Mission
to the United Nations, on the very same day 19. The declaration has been relied on by the
Respondent in proceedings before this Court. The Court itself has relied on the declaration
(Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Object ions, Judgment, I.C.J. Reports
1996 (II), p. 610, para. 17). Croatia is entitled to rely on the declaration. Serbia cannot now seek
to wriggle out of a solemn commitment that it ga ve so many years ago and on which it, the Court
and Croatia have all relied.
11. Indeed the Court concluded well before 2July1999 that the FRY was a party to the
Genocide Convention. First, in June1993, in its first provisional measures Order in the Bosnia
and Herzegovina case, the Court proceeded on the basis th at the SFRY had been a party to the
Genocide Convention and the FRY was then a party to the Genocide Convention ( Application of
18
CR 2008/8, p. 37, paras. 28-35.
1For the text of the declaration and the Note to the United Nations, see Application for Revision of the Judgment
of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina),
Judgment, I.C.J. Reports 2003, pp. 14-15). - 31 -
the Convention on the Prevention and Punishme nt of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Provisional Measures, Order of 8April1993, I.C.J. Reports 1993 ,
p. 14, paras. 21-22, and p. 16, para. 26). Second, in its Judgment of 1996, the Court confirmed that
the FRY was bound by the provisions of the Convention on the date of the filing of Bosnia and
Herzegovina’s Application (20 March 1993) (Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections, Judgment, I.C.J. Reports 1996 (II) , p. 610, para. 17). And then third, on 2 June 1999,
just one month before Croatia filed its Applica tion, in its Order on provisional measures in the
Legality of Force cases, the Court noted that it was undisputed that Yugoslavia was a party to the
Genocide Convention without reservation ( Legality of Use of Force (Yugoslavia v. Belgium),
Provisional Measures, Order of 2June1999, I.C.J. Reports 1999(I) , p.137, para.37; ibid.,
(Serbia and Montenegro v. Belgium), Preliminary Objections , Judgment of 15December2004,
p. 324, para. 114) 2. Nothing changed between that date and 2 July 1999.
12. Croatia took account of the provisional measure Orders and the 1996 Judgment. It relied
on the Court’s reasoning as authoritative. It had a reasonable expectation that the Court would,
following a principle of judicial certainty, adopt the same reasoning in future cases where the facts
in issue were, to all intents and purposes, identical . It is difficult to see how the Court might now
conclude that Bosnia and the FRY were parties to the Genocide Convention in July 1999 but that
Croatia and the FRY were not. The FRY’s later admission to the United Nations, and its purported
“accession” to the Geneva Convention after Croatia filed its Memorial, cannot effect a
retrospective change.
13. Indeed, the Court’s consistency on this vital point has been maintained. In the
2003 Revision Judgment the Court concluded that United Nations General Assembly
resolution47/1 (1992) did not “affect the position of the FRY in relation to the Genocide
Convention” (Application for Revision of the Judgment of 11July1996 in the Case concerning
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and
20
In its preliminary objections Judgment of 2004, finding that it had no jurisdiction, the Court did not decide on
whether the FRY was a party to the Genocide Convention in April 1999 when those proceedings were instituted. - 32 -
Herzegovina), Judgment, I.C.J. Reports 2003, p.31, para.70). Similarly, it ruled that
resolution 55/12 adopted in 2000 “cannot have changed retroactively the position [of the FRY] in
relation to... the Genocide Convention” ( ibid., para.71). On this point there was no change of
position in the 2004 Judgment ( Legality of Use of Force (Serbia and Montenegro v. Netherlands),
Preliminary Objections , Judgment of 15December2004, p.1055, para.113). And in the
2007 Judgment, the Court concluded that the principle of res judicata precluded “any reopening of
its 1996 Judgment” (Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007,
para.140). Despite these crystal clear rulings, Se rbia persisted yesterday in having another go at
reopening the issue. Indeed it spent a great deal more time ⎯ and much more argument ⎯ on the
Genocide Convention than it did on Article35 of the Statute that it barely touched on. In your
letter of 6May2008, MadamPresident, the Court asked the Parties to argue the issue of access.
The Court did not invite the Parties to address argument on the Genocide Convention. Yet that
became the focus of argument yesterday, and that says much about Serbia’s true objectives in these
proceedings.
III.S UCCESSION TO TREATIES ⎯ G ENERAL
14. The Court’s approach is consistent with the principles reflected in Article34 of the
1978 Vienna Convention on State Succession in Respect of Treaties 21. The former SFRY ratified
22
this treaty on 28 April 1980, and Croatia and the FRY became parties by succession . Article 34
deals with the Succession of States in cases of separ ation of parts of a State, makes it clear that
when a part of the territory of a State separate to form one or more States, whether or not the
predecessor State continues to exist, “ (a) any treaty in force at the date of the succession of States
in respect of the entire territory of the predecesso r State continues in force in respect of each
successor State so formed”.
21
UNTS, Vol. 1946, p. 3. Entered into force on 6 November 1996.
2Croatia (on 22October1992 ) and the FRY (on 12March2001) became parties by succession.
http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapter… (accessed 17 March 2008). - 33 -
15. This rule is of particular importance fo r treaties such as the Ge nocide Convention. The
representative of the then Soviet Union put it very well in 1977 23. He said:
“[T]reaties of a universal character were of paramount importance for the whole
international community, and particularly for newly independent States. It was
therefore in the interests of not only [thos e] states, but also of the international
community as a whole that a treaty of universal character should not cease to be in
force when a new State attained independence.” (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia), Preliminary Objections , Judgment, I.C.J. Reports 1996(II) , separate
opinion of Judge Weeramantry, p. 649.)
It is hard to think of any treaty with a more universal character than the Genocide Convention.
IV. S UCCESSION TO HUMAN RIGHTS TREATIES
16. It is generally accepted that the population of a territory that has enjoyed the protection
of certain human rights treaties may not be depriv ed of such rights by the mere fact of the
succession of a State in respect of that territory 24. The importance of this principle ⎯ in policy and
in law ⎯ lies in the sad fact that massive human rights violations often occur during the times of
severe political instability that accompany State su ccession. There is an obvious interest in the
continuity of these obligations: non-respect for human rights during times of succession exacerbate
tension, atrocity and refugee flows, and endangers international peace and security. The principle
applies to all aspects of such treaties, including their dispute settlement provisions such as
Article IX. We noted with interest the effort y esterday by Serbia to somehow decouple Article IX
from the rest of the Convention 25. But we noted with equal interest, Madam President, that Serbia
provided no authority in support of that troubling pr oposition. The continuity of obligations under
human rights treaties ⎯ and their mechanisms for enforcement ⎯ is of fundamental importance at
those times.
17. Indeed, it is a principle that has been insisted upon by organs of international
organizations and by treaty-monitoring bodies 26. Between 1993 and 1995 the United Nations
23
24th Meeting, 22 April 1977, Official Records, Vol. 1, p. 164, para. 2.
24See e.g., M. Kamminga, “State Succession in respect of Human Rights Treaties” 7 EJIL (1996) 469 with
references to State practice and doctrine.
25See for example CR 2008/8, p. 34, para s. 14-15; p. 41, paras. 57-58, 60 (Zimmerman); CR 2008/8, p. 48,
paras. 19 et seq, para. 36 (Varady).
26See for example M. Kamminga, “State Successi on in respect of Human Rights Treaties” 7EJIL (1996) 469
with references to State practice and doctrine. - 34 -
Commission on Human Rights adopted three successiv e resolutions on this very subject, at the
instance of the Russian Federation. These unanimo us resolutions recognized the “special nature”
of human rights treaties and their “continuing ap plicability” to successor States. The United
Nations Commission called on successor States that had not yet done so “to confirm to appropriate
depositaries that they continue to be bound by obligations under international human rights
treaties”27. And that same approach has been taken by the supervisory bodies of human rights
treaties. Indeed, in 1994, the Fifth Meeting of chairpersons of human rights treaties bodies
declared that successor States are “automatically bound” by human rights obligations, from
independence without need for any declaration of confirmation by the new Government of the
successor State 28.
18. Judge Weeramantry has noted the partic ular pertinence of these principles for the
Genocide Convention ( Judgment, I.C.J. Reports 199(6II) ; separate opinion of
Judge Weeramantry, p. 645). It would be “most dangerous”, he wrote, to view the breaking-up of a
State as clearing the decks of human rights trea ties and obligations of the predecessor State ( ibid.,
p. 651). And we say it is difficult to disagree w ith that proposition, or to see a basis on which the
continued application of the Genocide Convention to a particular territory should not also be
connected to a right of access to this Court: because this Court is, after all, the ultimate guardian of
the rights and obligations set forth in the Conve ntion. The FRY succeeded to the Convention,
including its Article IX.
V. T HERE CANNOT BE ANY HIATUS IN THE PROTECTION AFFORDED BY
THE GENOCIDE CONVENTION
19. Madam President, Members of the Court, I turn now to the issue of the temporal
application of the Genocide Convention, on which Serbia devoted considerable time yesterday 2.
In the Judgment in the case of Bosnia and Herzegovina, finding that the Convention did not contain
2Resolutions 1993/23, 1994/16 and 1995/18 cited in the Preliminary Report, Mr. Menno T. Kamminga, “Human
Rights Treaties And State Succession”, UNI DEM Seminar, “The Stat us Of International Treaties On Human Rights”,
Coimbra (Portugal), 7-8 October 2005, at http://www.vece.coe.int/docs/2005/CDL-UD(2005)013rep-e.asp (accessed
17 March 2008) (emphasis added).
2Report of the Fifth Meeting of Persons Chairing the Human Rights Treaty Bodies:. 19/10/94 A/49/537.
(Chairpersons Meeting).
2See, for example, CR 2008/9, p. 13, paras. 1-49 (Zimmerman). - 35 -
a clause limiting temporal jurisdiction, the Court rejected the Respondent’s argument that would
have resulted in a gap in the protection afforded by the Convention. The Court ruled that “it has
jurisdiction in this case to give effect to the Genocide Convention w ith regard to the relevant facts
which have occurred since the beginning of the conflict which took place in Bosnia and
Herzegovina” (Judgment, I.C.J. Reports 1996 (II), p. 617, para. 34; emphasis added).
20. Why would that same principle not also be applicable in the present case? Since the
Genocide Convention has been applicable to the entire territory of the former SFRY, continuously
since 1950, on what basis could it be said that it was not applicable at all times during the conflict,
including the period prior to 27April1992? To adopt a different approach now would introduce
massive uncertainty into the law. It would raise questions about the applicability of this and many
other such conventions for other conflicts in the future. Indeed, it would undermine the very notion
of the rule of law. Of course, neither Party ha d, as of July 1999, made a reservation purporting to
limit the jurisdiction ratione temporis of the Court: and in this respect we refer to
JudgeShahabuddeen’s powerful statement made in 1996. He said that the application of the
Convention from the beginning of the conflict woul d avoid an “inescapable time-gap in the
protection which the Genocide Convention previous ly afforded to all of the ‘human groups’
comprised in the former Socialist Federal Republic of Yugoslavia” ( Judgment, I.C.J. Reports
1996 (II); separate opinion of JudgeShahabuddeen, p.635); “more general arguments as to
succession to treaties may be put aside in favour of an approach based on the special characteristics
of the Genocide Convention” ( ibid., p. 634). His conclusion is equally compelling and applicable
in this case. As is Judge Parra-Aranguren’s emphasi s of the principle that the rules on termination
or suspension of a treaty as a consequence of br each “do not apply to provisions relating to the
protection of the human person contained in treaties of a humanitarian character” ( ibid.; separate
opinion of Judge Parra-Aranguren, p. 657. This issue was also referred to in the separate opinion
of Judge Elaraby in Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary
Objections, Judgment, I.C.J. Reports 2004, p. 363, para. 17.)
21. There must be no gaps in the application of the Genocide Convention. There can be no
gaps. There are no gaps. The points made yesterday by Professor Zimmermann relating to the
temporal application of the Convention were ess entially the same as those made, more than ten - 36 -
years ago, by the FRY in the Bosnia case. They were disposed of by the Court at paragraph 34 of
its 1996 Judgment. Now, it may be that certain points he raised go to issues of attribution, and they
might have to be decided at the merits phase: Professor Crawford will deal more with this. But we
have heard no reason from the Respondent for the Cour t to depart from the approach that it took in
1996, when it concluded that the Convention co ntained no clause that limited its scope of
application ratione temporis, that neither party had made any reservation to that end, and that a
broad temporal finding was consistent with the Convention’s object and purpose. For a
Convention such as this, where we are dealing with a treaty that has a declaratory character and that
applies universal law, it is surely correct that the principle that there can be no temporal gap must
apply irrespective of the character or the nature of the succession.
VI. S ERBIA ’S CONDUCT DEMONSTRATES THAT IT WAS BOUND BY
THE GENOCIDE C ONVENTION
22. Madam President, Members of the Court, af ter many years of adopting one approach in
proceedings before this Court, the Respondent ab ruptly changed tack, and yesterday it maintained
its new argument. Contrary to the approach adopted by the Court, it now contends that it only
became a party to the Genocide Convention in March 2001.
23. Yet as long ago as April 1992 it affirmed it would strictly abide by all the commitments
30
assumed internationally by the SFRY . That plainly— to our reading and obviously the
Court’s— included the Genocide Convention. It has come before you, in this room, as a
Respondent and as an Applicant. It has actively participated in the case of Bosnia and
Herzegovina. It has twice sought provisional measures. It has responded to claims with
counter-claims. It has appointed a judge ad hoc and, until its change of position in2001, it made
numerous assertions and unambiguous declarations as to its being a party to the Genocide
Convention. Croatia was entitled to rely on the pos ition adopted by the FRY in July 1999, and we
say it is entitled to rely on it again today.
24. There was no ambiguity in the Respondent’s position towards the Convention up to the
end of 2000. Then the Government changed. Then new policies were applied: and then the FRY
30
FRY, declaration of 27 April 1992, para. 1 (in Serbia judges’ folder, tab 1). - 37 -
gave up its claim to be a continuator State and sought United Nations membership; it purportedly
acceded to the Genocide Convention, with a reservati on; it filed a revision Application before this
Court and it withdrew its jurisdictional basis for the NATO cases. And now it argues that its earlier
declaration— and subsequent endorsement— was simply without any effect or consequence. It
wants all of its actions from 1992 to 2000, a period of eight years, to be treated by this Court as
having been erased.
25. Madam President, Members of the Court, this is not an attractive argument. Whatever
the consequences of the FRY’s formal admission as a Member of the United Nations in 2000—
and that is a matter I will return to deal with tomorrow— that did not affect its legal status as a
successor to the SFRY’s treaty obligations. With the dissolution of the SFRY— a development
31
that occurred as a process, as Serbia acknowledged yesterday — it assumed the legal obligations
as a successor State of the SFRY (see Legality of Use of Force (Serbia and Montenegro v.
Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004 ; separate opinion of
Judge Elaraby, p. 367, para. 8, to this effect).
VII. S ERBIA ’S RESERVATION DOES NOT HAVE RETROACTIVE EFFECT
26. And finally, I turn to the consequences of the FRY’s purported accession to the Genocide
Convention. Croatia filed its Memorial on 1 March2001. That date is significant, Madam
President, as Professor Crawford will in due course expl ain. A few days later, by a Notification of
6March2001, deposited with the Secretary-Genera l of the United Nations, the FRY purported to
accede to the Genocide Convention ⎯ with effect from 12March 2001) (for the text of the
Notification of Accession see Application for Revision of the Judgment of 11 July 1996, Judgment,
I.C.J. Reports 2003, pp. 24-25). The Notification was accompanied by a reservation to Article IX,
purporting to exclude the jurisdiction of the Cour t absent the specific and explicit consent of the
FRY in each case.
31
See, for example, CR 2008/8, p. 57, para. 10 (Djeric). - 38 -
27. Croatia objected. It did so on the grounds that as a successor State to the SFRY, the FRY
was already bound by the Convention 3, and it expressly objected to the FRY’s purported
33
reservation to Article IX . It is striking that on the very day the FRY purported to “accede” to the
Genocide Convention, it notified its “succession” to a great number of conventions deposited with
the Secretary-General of the United Nations. It selected from all of the treaties and conventions
deposited with his office just one instrument ⎯ the Genocide Convention ⎯ in relation to which it
deposited an instrument of accession with a reservation ( Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Judgment of 26 February 2007, separate opinion of Judge Tomka, paras. 34 and 35).
28. These considerations all point in one dir ection only: the Court should not attach any
legal effect to the FRY’s notification of accession to the Genocide Convention. We submit that it
should instead proceed on the basis it has always done that the FRY and now Serbia is bound by
the Convention, on the basis of the operation of the customary rule of ipso jure succession ( ibid.;
see also Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections,
Judgment, I.C.J. Reports 2004; separate opinion of Judge Elaraby, p. 368, para. 12).
VIII. C ONCLUSION
29. Madam President, Members of the Court, Yugoslavia’s declarations and conduct over the
last 15 years have been somewhat contradictory. However, in relation to the critical date ⎯ 2 July
1999 ⎯ the facts stand undisputed and the law is crystal clear. ProfessorVarady, Serbia’s
distinguished Agent, said that the issue of jurisdiction “boils down to one question: the link
3FRY’s Preliminary Objections, Ann. 7, p. 35. Other States that objected to this accession included Bosnia and
Sweden, see Application for Revision of the Judgmentof 11 July 1996 in the Case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment, I.C.J. Reports 2003, p. 25.
3Ibid. Croatia stated:
The Government of the Republic of Croatia further objects to the reservation made by the [FRY] in respect of
ArticleIX of the [Genocide Convention], and considers it to be incompatible with the object and purpose of the
Convention. The Government of the Republic of Croatia considers the Genocide Convention to be fully in force
and applicable between the Republic of Croatia and the [FRY], including Article IX.
The Government of the Republic of Croatia deems that neither the purported way of becoming a party to the
Genocide Convention ex nunc by the [FRY], nor its purported reservati on, have any legal effect regarding the
jurisdiction of the [ICJ] with respect to the pending proceedings initiated before the [ICJ] by the Republic of
Croatia against the [FRY] pursuant to the Genocide Convention. - 39 -
between the Respondent and the Genocide Convention” 34. On that one question ⎯ the key
question ⎯ the Court has been clear and we hope that it will continue to be clear. As to the
situation on 2 July 1999, three conclusions can be drawn:
⎯ first, both States were parties to the Convention, without reservation;
⎯ second, there were no temporal or spatial lim itations that could preclude the Convention from
imposing rights and obligations on the Parties fro m the beginning of the conflict, and at all
times thereafter; and
⎯ third, the belated Serbian reservation of Marc h 2001 could not and does not have retroactive
effect.
30. Madam President, Members of the Court, let us take Professor Varady at face value: if
he fails to persuade y ou on his one key question ⎯ the relationship between the Respondent and
the Genocide Convention ⎯ then on his own terms Serbia’s jurisdictional arguments collapse. We
do not see how Serbia’s argument on the Genocid e Convention can succeed without doing untold
damage to the international rule of law. I tha nk you, Madam President, for your kind attention and
this concludes my presentation and Croatia’s submissions for this afternoon.
The PRESIDENT: Thank you, Professor Sands. Thus Croatia’s submissions for the day are
concluded and the Court will resume at 10 a.m. tomorrow for the continuation of Croatia’s
submissions in the first round.
The Court now rises.
The Court rose at 6 p.m.
_________
34
CR 2008/9, p. 34, para. 11 (Varady).
Audience publique tenue le mardi 27 mai 2008, à 16 h 30, 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 (Croatie c. Serbie)