Audience publique tenue le vendredi 30 mai 2008, 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 prévent

Document Number
118-20080530-ORA-01-00-BI
Document Type
Incidental Proceedings
Number (Press Release, Order, etc)
2008/13
Date of the Document
Bilingual Document File
Bilingual Content

Non-Corrigé
Uncorrected

CR 2008/13

International Court Cour internationale
of Justice de Justice

THHEAGUE LAAYE

YEAR 2008

Public sitting

held on Friday 30 May 2008, at 10 a.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 vendredi 30 mai 2008, 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
(Croatie c. Serbie)

____________________

COMPTE RENDU
____________________ - 2 -

Present: Presieigtgins
Vice-Prsi-Kntasawneh

Ranjevaudges
Shi
Koroma
Parra-Aranguren

Buergenthal
Owada
Simma
Tomka

Abraham
Keith
Sepúlveda-Amor
Bennouna

Skotnikov
Judges ad hoc Vukas
Kre ća

Couevrisrar

⎯⎯⎯⎯⎯⎯ - 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 inte rnational, 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, Director
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 Djeri ć, 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

second round of the oral arguments of Croatia and I now give the floor to His Excellency

Mr. Šimonović, the Agent of Croatia.

I had thought Mr. Šimonovi ć might wish to introduce the second round team but we will go

straight to Professor Sands.

Mr. SANDS:

1. Thank you very much, Madam President and Members of the Court, we note that

yesterday Serbia finally felt able to respond to th e invitation set forth in the Registrar’s letter of

6 May last. We had expected Serbia to do so on Monday, and we listened with admiration to the

results of the preparation and research that were somehow squeezed into the very short period of

time between the close of our first round, an d the opening of their second round, yesterday

morning. Be that as it may, we are of course pleas ed to be able to respond to what they did say

yesterday. We can be relatively brief in our response.

2. I will begin by addressing the application of the Genocide Convention, and the issue of

access to the Court under Article 35 (1). Pr ofessor Crawford will then deal with the Mavrommatis

point, with Article35(2) and a residual aspect of Serbia’s non-retroactivity argument. Croatia’s

Agent, Ambassador Šimonovi ć, will then briefly address Serbia’s third preliminary objection and

then set out some concluding remarks. Madam Presi dent, I think we will expect to be done within

an hour and a half, so it may be, depending on what it is your desire, that we do not need to go

beyond a coffee break.

The PRESIDENT: Yes, Professor Sands, we had assumed we would run straight through.

SANr.DS:

3. Before turning to the two issues I am to address, I would like to offer a small number of

preliminary observations.

Th4e. first concerns the political positions adopted by Croatia during the 1990s. It is well

known that Croatia, along with all the other successor States of the former SFRY, believed strongly - 9 -

that all five successor States should be treated equally. This was not a matter of political

1
expediency, as counsel for Serbia suggested T. Rather, it was a point of principle.

5. This brings me to a second preliminary observation: the consequences of your Judgment

of1996. Whatever point of principle might have inspired the political position it adopted, and

whatever its assessment of the legal situati on, Croatia was bound to take full account of the

authoritative decisions of this Court, the principa l judicial organ of the United Nations, in charting

a way forward. After 1996, Croatia could simply have buried its head in the sand and ignored your

Judgment, but of course it decided not to do th at. How can it be criticized for that? Your

1996 Judgment made a number of important legal findings: for example, that the FRY was bound

by the Genocide Convention; that Article 35 of your Statute provided no bar to the FRY’s access

to the Court; and, as you later described it, that the FRY had a sui generis relationship with the

United Nations. Croatia paid very careful atte ntion to these decisions, as it was bound to do. It

relied on them as authoritative, including during the period of careful reflection that it went through

in the steps of taking a decision on whether to initiate these proceedings. That important

decision ⎯ the initiation of proceedings ⎯ was based on advice received, and at the heart of that

advice was your 1996 Judgment. Imagine if you had decided differently ⎯ if you had decided that

you had no jurisdiction, or that access to the Court was barred under Article 35 ⎯ then, of course,

that too would have been a most significant factor as Croatia decided how to proceed. But that is

not what you decided and now Serbia says that Croatia places too great a reliance on the

2
1996 Judgment T. And it says that in some unspecified way Croatia’s previous positions should

preclude the Respondent from having access to th e Court, or should prevent the Court from

3
exercising jurisdiction T. But why? When such a court speaks ⎯ particularly the International

Court of Justice ⎯ it is entitled to the fullest respect from the Members of the United Nations, and

these Members in turn are entitled to place some reli ance, at least, on the approach which is taken

by the Court after years of consideration, careful consideration, and several rounds of written and

oral argument.

TCR 2008/12, pp. 12-13 (Varady).

TCR 2008/12, see inter alia pp. 44-46 (Zimmermann).

3
TCR 2008/12, pp. 11-13, paras 8, 12-14. - 10 -

6. The Respondent now seeks to minimize the Court’s jurisprudence. According to

ProfessorVarady, the Court’s six decisions ⎯ this impressive, long list of cases ⎯ is actually

4
reduced to just one, the 1996 Judgment T. And that case, he says, did not really address the issues

we face in this case, since the 1996 Judgment, as put it, did not consider the qualification of the

5
FRY’s 1992 declaration and its accompanying Note TFPTWith the greatest respect, that is not correct:

the 1992 declaration and the Note were cited in all of the decisions in the Bosnia and Herzegovina

case. We simply do not see how it can be argued that they were not relevant legal considerations

on which the Court relied to reach its conclu sion that the FRY was bound by the Genocide

Convention. Indeed, the FRY itself recognized that ⎯ albeit implicitly ⎯ in a diplomatic Note

that it communicated to Croatia on 19February 1997, after your Judgment. That Note stated that

the 1996 Judgment “found that the Federal Republic of Yugoslavia is a Contracting Party to the

Convention on the Prevention and Punishment of the Crime of Genocide, although it has not

6
deposited any act on succession or accession to this Convention” T.PT

7. Which brings me to our third preliminary observation: we could not help but notice the

nature of so many of Serbia’s arguments, whic h persist in placing form over substance. The

7
1992declaration cannot be relied upon, it is said, because it lacked certain formal prerequisites TPT

That argument is not new, and it has already been rejected. The formal modalities for the FRY’s

succession to the Genocide Convention, it is said, have not been met. That too is an argument that

has already been made, and it too has already been rejected. The formal requirements of Article 35

of your Statute have not been met, for example in relation to membership of the United Nations.

Again, form over substance. Again, rejected. Serbia is nothing if not persistent. Yet it proceeds as

though international law is merely a set of legal cat egories into which the conduct of States is to be

slotted and then assessed. It is not.

TCR 2008/12, p. 63, para. 15 (Varady).

TIbid., para. 16.

6
TAdditional documents submitted to the Court prior to the opening of oral submissions.
7
TCR 2008/12, pp. 38-39, paras. 32, 34 (Zimmermann). - 11 -

Genocide Convention

8. So, I turn now to the Genocide Convention, and the question of its application. This was

addressed by Professor Zimmermann, and I hope he w ill forgive me if I distil his presentation into

what we saw as its three component elements.

T 9. The first question he addressed wa s this: was the FRY bound by the Genocide

8
Convention as at 2July1999? He says it was not TPTTAnd he criticizes us for having failed to

provide clarity as to the basis upon which we have argued for an opposite conclusion. It might be

said that on this occasion our crystal was cloudy, not clear. Croatia finds that surprising, since we

thought we had been rather consistent in our appr oach. In the Application of 2 July 1999, Croatia

based its arguments on succession on the general pr inciples and rules of international law and on

Tuesday, I reiterated that position on behalf of Cr oatia, and we provided authorities in support of

that claim. As an alternative basis, of c ourse, Croatia can rely on the FRY’s declaration

of 27 April 1992, as the Court appears to have done in its 1996 Judgment: T

“That Republic signed the Genocid e Convention on 11December 1948 and
deposited its instrument of ratification, without reservation, on 29 August 1950. At the

time of the proclamation of the Federal Re public of Yugoslavia, on 27April 1992, a
forma1 declaration was adopted on its behalf to the effect that:

‘The Federal Republic of Yugoslavia, continuing the State, international

legal and political personality of the So cialist Federal Republic of Yugoslavia,
shall strictly abide by al1 the commitme nts that the Socialist Federal Republic

of Yugoslavia assumed internationally.’

T This intention thus expressed by Yugoslavia to remain bound by the
international treaties to which the former Yugoslavia was party was confirmed in an

officia1 Note of 27 April 1992 from the Permanent Mission of Yugoslavia to the
United Nations, addressed to the Secretary-General .” (Application of the Convention

on the Prevention and Punishment of the Cr ime of Genocide, Preliminary Objections,
Judgment, I. C. J. Reports 1996 (II), p. 610, para. 17.)

Now Serbia says that Croatia cannot invoke the declaration since it never placed reliance on the

Note. With respect, that is not right and it is ⎯ once again ⎯ a reflection of Serbia’s excessive

formalism. When Croatia invoked the Court’s Judg ment of 1996, what was it doing if not relying

on the FRY’s declaration?

10. Professor Zimmermann is an advocate with a fondness for legal categories. For him, the

law is no more than a series of technical issues, in which facts are applied to categories, which they

TCR 2008/12, p. 40, para. 36. - 12 -

9
fit or do not fit and from which consequences then do or do not flow TPPT Would that the world of

international law should be like this, but it is not. We, of course, could take the bait and engage in

an elaborate academic discourse on the merits and demerits of various theories of succession. On

what basis precisely did the FRY’s succession occur? ProfessorZimmermann asked TPFPT On what

particular day did it occur? he asked. We were insuffici ently clear as to our methodology, he said.

Well, we agree that methodology can be important, but not in this room, not for this case and not

on this issue. These are interesting academic points he has made, but they are only that: academic

points. And if we were to engage in academic argument, we should hope to do so with a greater

care than did ProfessorZimmermann when it came to authorities and inconsistent arguments.

Yesterday, for example, he told the Court th at Article34 of the Vienna Convention on the

11
Succession of States with Regard to Treaties di d not reflect customary international law TPFPand that

a majority of States did not accept it TPF. He seems to have forgotten what he himself has written as

an authority on this subject. His own book provides that the Article34 rule reflects a principle

which, in relation to the complete dismemberment of a State, which is the situation for the former

13
SFRY ⎯ and I quote his words ⎯ “had already in 1978 been strongly rooted in State practice” TPFPT

11. The truth is that with all these academic arguments, Serbia’s argument this week faces

one giant, insurmountable hurdle ⎯ the Mount Everest of hurdles, one might call it ⎯ that it did

not even begin to grapple with and it is this: you, the Court, have ruled that the FRY was bound by

the Convention from the beginning of the conflic t between Bosnia and He rzegovina and the FRY

on no less than six occasions ⎯ in 1993 (twice), in 1996, in 1999, in 2003 and again in 2007.

12. You did not change course in your 2004: you ruled simply that you did not have to

decide the point ( Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary

Objections, Judgment, I.C.J. Reports 2004, , pp. 313-314, paras. 87-88). If the Convention bound

the FRY in its relations with Bosnia and Herzegovina in that period, it must have bound the FRY in

9
TCR 2008/12, p. 32, para. 7 and p. 33, para. 10.

TPCR 2008/12, p. 31.

11
TPCR 2008/12, p. 34, para. 16.
12
TPCR 2008/12, p. 34, para. 17.

TPA. Zimmermann, Habilitationsschrift, Staatennachfolge in völkerrechtliche Verträge: Zugleich ein Beitrag zu

den Möglichkeiten und Grenzen völkerrechtlicher Kodifikation (Springer, 2000), p.860 cited in Bosnia, Judgment of
26 February 2007, separate opinion of Judge Tomka, p. 15. - 13 -

its relations with Croatia over exactly the same period. Serbia seems to have no answer to that.

Nothing that was legally material changed between March 1993 and July 1999. Counsel for Serbia

identified no relevant change ⎯ nothing ⎯ during that period. The legal situation on 2 July 1999

was exactly as it was on 20 March 1993. Fifteen years after you first ruled that the FRY was bound

by the Convention, Serbia asks you ⎯ once again ⎯ to change course. The true target of this

litigation is absolutely clear to us.

13. The Court’s 1996 Judgment on the contin uing applicability of the Genocide Convention

was reasonable, it was pragmatic and it was right. Much as Professor Zimmermann might wish us

to inhabit a world in which each State sets out, w ith absolute precision, the basis for each of its

actions ⎯ such as the timing and the methodology of its succession to certain treaty obligations ⎯

the category approach to international law, as it might be called ⎯ the reality in life is different, as

all of us in this room know. The infinite wisdom of international law is its flexibility, its ability to

accommodate new and unforeseen circumstances whilst maintaining its coherence and strict

adherence to principle. States are pragmatic, the United Nations is pragmatic, as it was during the

1990s, this Court has been pragmatic, the system of international law is pragmatic. Again, Serbia

puts form over substance. The substance in this case was the FRY’s attitude ⎯ no more, no less ⎯

and that attitude was to be bound by the Conven tion. Why the FRY had that attitude is not a

juridically significant factor.

14. Professor Zimmermann mentioned the more recent Montenegrin experience. It may well

be that when the time came for Montenegro to emerge into independence, the United Nations

Treaty Secretariat had learnt from experience and en couraged Montenegro to issue statements with

some greater degree of precision. But what Mont enegro may have done in 2006 cannot have legal

consequences for the FRY’s succession in the early 1990s, any more than political decisions taken

in late 2000 can retroactively affect the legal situation that pertained on 2 July 1999.

15. In sum, there can be no doubt that the Genocide Convention was binding on the FRY on

2 July 1999.

16. The second question that arises from Professor Zimmermann’s argument is this: was the

FRY bound by ArticleIX of the Genocide Conventi on as at the critical date? That should be a

fairly straightforward question to answer. Ju st as you have decided on six occasions that the - 14 -

Convention was binding on that date, so you have held that ArticleIX vested the Court with

jurisdiction over the FRY when Bosnia and Herzegovi na filed its Application. Serbia now invites

you to overturn that line of decision. Serbia says that its 1992 declaration cannot be relied on ⎯

for formal reasons ⎯ and there is no automatic succession to compromissory clauses. What is the

authority for that? Professor Zimmermann did not mention any by name. He referred the Court to

the Respondent’s Written Statemen t of preliminary objections TP. We dutifully went off to have a

look at those authorities. There are very few of them; none are on point. I will give you a couple

of examples: one authority was said to be the views of the United Nations Legal Counsel in 1974,

15
as reported by Professor Schachter TP. But that objection to succession concerned political treaties,

such as treaties of pacific settlement, and not tr eaties like the Genocide Convention, which falls

within the category of “essentially non-political agreement... intended to have universal

application”. The second authority on which the Respondent relies was the 1974 Yearbook of the

16
International Law Commission TPF, which suggested that it would not be fair to impose obligations

by way of succession on “newly independent States”. This was understandable in the context of

decolonization, but we are not here dealing with such a situation and the FRY was not a newly

independent State. So that, too, does not assist. Indeed, none of the small number of authorities

referred to concerns a treaty such as the Genocide Convention. When one goes to inspect closely,

Serbia’s cupboard of authorities is bare.

17. In conclusion: there can be no doubt that on 2July1999 the FRY was bound by

Article IX of the Genocide Convention. To hold otherwise would reverse 15 years of jurisprudence

and call into question the basis for the Court’ s decisions in the case brought by Bosnia and

Herzegovina.

18. Which brings us to the third question: assuming that the FRY was bound by the

Convention, including its ArticleIX, does the Co urt have jurisdiction in relation to events

occurring before 27 April 1992, which is the moment , according to Serbia, that the FRY came into

being? Serbia says no, because to do so would give rise to a retroactive application of the

TPCR 2008/12, p. 36.

TPFRY, Preliminary Objections, Ann. 38.

16
TPFRY, Preliminary Objections, Ann. 24. - 15 -

Convention to a time before the FRY existed as a State. I am not now going to repeat the

arguments we made to respond to Serbia’s argumen t on this issue. That argument we say with the

greatest respect was unattractive on Tuesday, and it is unattractive today on Friday.

19. We are castigated for calling it unattractive. But it is unattractive because it creates so

many problems and because it undermines the whole system of human rights protection that the

world has strived with great difficulty to put in place over the last 60years. It also has the

weakness of being completely in consistent with Serb ia’s own perception of its status and the

circumstances of its emergence. For exampl e, in December1991, the European Community

invited the six Yugoslav Republics to respond to an invitation extended in an EC declaration on

Guidelines on the Recognition of new States in Eastern Europe and in the Soviet Union. On

23December1991 Serbia declined, responding that it acquired internationally recognized

statehood as early as the Berlin Congress of 1878 and was not interested in secession TP. So Serbia

certainly saw itself as having some degree of intern ational personality even before 1992. Serbia’s

approach as argued before the Court this week, inevitably leads to a time gap in the application and

enforcement of the Convention. Serbia has fa iled to explain how such a time gap would be

avoided, in the period between the dissolution of the SFRY (which started when two constituent

Republics proclaimed independence) and the emer gence into independence of the FRY, and it

seems unable to provide an answer to that absolu tely crucial point. By the end of November 1991,

the Badinter Commission was able to conclude that the SFRY was in the process of dissolution,

and conversely the emergence of the FRY ⎯ under the leadership of Milosevic and making use of

the JNA, amongst many other statal entities ⎯ was in a state of emergence. ProfessorCrawford

will return to this point in due course, but for the present it is su fficient to note that on Serbia’s

approach that vital period would be one during which the enforceable writ of the Genocide

Convention would have ceased to run. That cannot be right, MadamPresident, for the very legal

reasons identified by the Court in its 1996 Judgment.

20. What argument does Serbia have for this claim? It relies on a very particular reading of

paragraph34 of your 1996Judgmen t. That paragraph, says Serbia, makes clear that the Court’s

17
TRoland Rich (1993): “ Recognition of States: The Collapse of Yugoslavia and the Soviet Union ”, 4 EJIL, p. 47. - 16 -

jurisdiction ratione temporis extends only prospectively from 27 April 1992. But it does nothing of

the sort. Paragraph34 has to be read against the background of the Application made by Bosnia

and Herzegovina, and the arguments, includi ng the Memorial dated 15April1994, and the

verbatim records of the oral arguments heard in this very courtroom from February to May2006.

Those documents make it clear that the Court pro ceeded on the basis that it had jurisdiction “with

regard to the relevant facts which have occurred since the be ginning of the conflict which took

place in Bosnia and Herzegovina”. Now it is true, the Court did not specify the precise date of that

conflict, but it is clear from the pleadings that both parties treated the conflict as stretching over a

period both before and after 27 April 1992. A few examples confirm that the parties to proceedings

before this Court adopted the same approach as the ICTY, which has long treated the conflict with

Bosnia and Herzegovina and the conflict with Croatia as having begun in 1991, well before the

FRY’s declaration of 27 April 1992. Bosnia a nd Herzegovina’s Application of 20 March 1993 for

example, refers to numerous acts that occurred well before that date: for example, an attack by

18
Serb forces and the blocking of traffic in Bosnia and Herzegovina on 3March1992 TPF; for

example, widespread attacks throughout Bosnia and Herzegovina on 4 and 5April1992 TPFPT for

20
example, the capture by Serb forces of Z vornik in Eastern Bosnia, on 10April1992 TPFPT for

21
example, the intensification of attacks on 22April1992 TPF. Each of these, and many more, well

before the jurisdictional cut off date now claimed by Serbia.

21. Bosnia’s Memorial in that case continued in the same vein. It described an attack at the

beginning of April 1992 in which 1,000 Muslim civilians were killed by Serb paramilitary forces in

22
Bijeljina TPFPT It describes a number of crucial flashpoints between 27March and 8April1992,

including attacks that were initiated by Arkan’s “Tigers” in the north and the east and by the JNA

units in the south, the west, and the north-west, a ll intended to secure the main points of entry into

23
Bosnia and Herzegovina TPFPT Plainly Bosnia and Herzegovina treated acts prior to 27 April 1992 as

18
TPBosnia’s Application of 20 March 1993, para. 87A.

TPIbid., para. 87B.

20
TPIbid., para. 87A.
21
TPIbid.

22
TPMemorial of Bosnia and Herzegovina, 15 April 1994, p. 30, para 2.2.2.2.
23
TPIbid., p. 72, para 2.3.5.2. - 17 -

falling within the jurisdiction of the Court. Did the FRY object to these acts, did it argue that they

fell outside the Court’s jurisdiction because they occurred retroactively before the FRY supposedly

came into existence? Apparently not.

22. What did the Court do? In paragraph 34 of the 1996 Judgment the Court expressly

rejected Yugoslavia’s argument that it could only deal with events subsequent to the different dates

on which the Convention might have become appli cable as between the parties, that includes

27April1992. It comes as no surprise, then, that the 2007Judgment also refers to events that

occurred prior to 27April1992. Nowhere in the Court’s Judgment ⎯ certainly nowhere that I

have seen ⎯ does the Court draw a line across the calendar and say: “oh, we only have jurisdiction

after 27April1992, so we’re not going to look at any facts that occurred prior to that date and

we’re not going to assess any facts that occurred prior to that date”. To the contrary. The Court

identified and assessed acts that occurred prior to th at date. You refer to decisions of the ICTY

which treat the conflict as having started in 1991 . You refer to the establishment of the Serb

Republic of Bosnia and Herzegovina (lat er Republika Srpska), on 9January1992 ( Application of

the Convention on the Prevention and Punishme nt of the Crime of Genocide (Bosnia and

Herzegovina v. Yugoslavia), p.84, para.233). You refer to th e armed conflict that broke out in

Sarajevo at the beginning of April1992, and you described the 56,000people who had been

wounded in Sarajevo in a period that pre-dated th e Respondent’s declaration of 27April1992.

Nowhere in the Judgment, as far as we can see, do you say that in assessing whether a genocide

had occurred you are limited to facts that had occurred after 27 April 1992.

23. Madam President, Members of the Court, the retroactivity argument has no merit

whatsoever, and it is inconsistent with your pr actice. If you accede to Serbia’s arguments on the

application of the Genocide Convention, or an y part of it, you will be rejecting your own

jurisprudence across six decisions and 14years. The consequences of that do not bear thinking

about. We invite you to reject Serbia’s argument, and to do so decisively.

Article 35 (1)

24. I turn now to the Article 35, paragraph 1, issue: the question of the FRY’s membership

of the United Nations and access to the Court. It was truly striking how little Serbia had to say on - 18 -

this point. ProfessorVarady devoted just a few minutes to the argument, it is synthesized in two

24
pages of the transcript TPPT Madam President, I will follow your disposition: we will not repeat

ourselves, and limit ourselves to the one point raised by Serbia on this issue. So I can be very brief.

25. Serbia essentially limited itself to this point: Croatia, it said, is not entitled to claim that

the Respondent has access to the Court under Ar ticle35(1) because its position on this issue

changed. It changed, says Serbia, from one of opposition to the notion that as at 1999 the FRY was

a Member of the United Nations, to one of acceptance of that position: but that is the full extent of

their argument. But that misstates Croatia’s position: a willingness on the part of Croatia to accept

that the FRY had certain attributes of membership ⎯ including the right of access to the Court ⎯

is not to accept that it was a Member of the United Na tions. There is no inconsistency in Croatia’s

position, all the more so when you take into account the adoption of your 1996Judgment which,

obviously, Croatia could not ignore.

26. Madam President, this argument might have been more compelling if Serbia had actually

chosen to respond to the arguments I put forward on Tuesday. It has not. Nor, we respectfully

suggest, has it listened with sufficien t care and attention to what we did say. Croatia’s position

was, and it remains, that the FRY was not a Me mber of the United Nations between 1992 and

2000: rather, it had ⎯ as this Court described it ⎯ a sui generis relationship, one that came with

attributes of membership. What does Serbia believe is meant by the sui generis relationship? We

have absolutely no idea, for once again Serbia was silent. There was no response at all to our

submission that those attributes included a right of access to the Court. There was no response to

our submission that this conclusion followed logically from the fact that no equivalent resolution to

that adopted in relation to the General Assemb ly and Economic and Soci al Council participation

was adopted in relation to the right of access to the Court. On that point too, Serbia was silent.

Indeed, it was silent on all the points that we rais ed. It simply provided no substantive response.

Instead all we got was bald assertion: and from th is silence we say the Court should draw its own

conclusions.

24
TCR 2008/12, pp. 13-15. - 19 -

27. And yet, the special relationship between the FRY, and now Serbia, seems to persist.

25
ProfessorVarady told the Court that “everyone accepted the position asserted by Croatia” TPF. But

not quite everyone, it seems. There are still so me who believe in the special relationship.

[Plate 11 (a) on screen.] Even today, in some instan ces, the United Nations website differentiates

between the different successor States. On membership of the United Nations Security Council, for

example, in relation to Serbia it sometimes says “See Yugoslavia”, whereas in relation to Croatia,

which you will see on the next plate [new plate 11 (b) on], there is no similar connection drawn.

For your convenience, the plates showing the United Nations website may be found in your folders

at tab 11. [Plate off.]

28. And this is not just for the past. A recent decision by the Serbian Government, as

confirmed by the Parliament of the Republic of Serbia, proudly proclaims that “the Republic of

Serbia is an internationally recognized state, one of the founders and a member of the United

26
Nations, as well as one of many ot her international organizations” TPFPT And even more recently, in a

statement of 18 February 2008, the Supreme Court of Serbia reiterated that position, declaring that

the Republic of Serbia is a sovereign State a nd “one of the founders of the United Nations” TPF. The

special relationship, the sui generis situation, seems to persist even today, at least in the eyes of

certain organs of Serbia.

29. Madam President, Members of the Court, I cannot, I am afraid, provide you with more

assistance than this. On Wednesday we set out our arguments on the meaning and effect of the sui

generis relationship. It stands completely unrebutted. In our submission Article 35 (1) provides no

bar to the FRY having access to the Court on 2 July 1999, and it provides no bar today.

Conclusion

30. Madam President, Members of the Court, I can end on a note of agreement. On Monday,

Professor Varady told the Court that: “The issue of jurisdiction boils down to one question: that of

25
TPCR 2008/12, p. 14, para. 15.

TPSee: National Assembly of the Republic of Serbia, http://www.parlament.sr.gov.yu/content/lat/akta/

akta_detalji.asp?Id=470&t=Z# U(in Serbian), Government of the Republic of Serbia, http://www.srbija.sr.gov.yu/kosovo-
metohija/index.php?id=43159 (in English).

TPSee: Supreme Court of Serbia (only in Serbian), http://www.vrhovni.sud.srbija.yu/code/navigate.php?

Id=731&newsId=304&bigText=true&offset =TH - 20 -

the link between the Respondent and the Genocide Convention.” TPFHe did not recant from that on

Thursday. That succinct statement is surely righ t, and I hope we have shown that the question of

the link between the Respondent and the Convention on 2 July 1999 admits of only one conclusion.

From that conclusion all else logically flows: in particular, the rejection of Serbia’s argument on

jurisdiction under Article IX and on the Article 35 (1) access issue, as well as the safeguarding of

your consistent jurisprudence in the Bosnia case, and the legacy of that case.

31. Madam President, that concludes my pr esentation. Once again I thank you and the

Members of the Court for your very kind attention, and invite you to call Professor Crawford to the

Bar.

The PRESIDENT: Thank you, Professor Sands. I now call Professor Crawford.

Mr. CRAWFORD: Madam President, Members of the Court:

SERBIA ’S A CCESS TO THE C OURT

Introduction

1. In this presentation I will deal with aspects of all three preliminary objections.

⎯ First, on preliminary objection 1, I will respond to the arguments made yesterday on Article 35,

paragraph 2, the treaties in force provision, and on the Mavrommatis principle. In the course of

doing so I will respond to the question asked by Judge Abraham earlier this week.

⎯ Second, on preliminary objection 2, I will show that the Respondent’s argument that there is no

possibility of responsibility for conduct prior to 27 April 1992 being attributed to it must fail as

a matter of admissibility; as a matter of fact it evidently pertains to the merits.

⎯ Third, I will say something very briefly on the remaining admissibility issue raised by

preliminary objection 3.

28
TCR 2008/9, p. 34, para. 11. - 21 -

Preliminary objection 1: Jurisdiction ratione personae

(a) Article 35 (2): Treaties in force

2. Turning first to Article 35, paragraph 2, I am not going to try to repeat my very extensive

presentation the other day. I am simply going to make a series of points, in staccato fashion, in

response to what was, finally, a very able and well-prepared presentation yesterday by Mr. Djerić.

3. A minor point first: I did not say that the Article 35, paragraph 2, point was not argued in

the NATO cases: I said it was not argued by Serbia as Applicant. If it had really wanted to uphold

your jurisdiction in those cases, it should have argued Article 35, paragraph 2, but it did not. Some

of the Respondents of course did argue it. You heard the case against. The first time you heard the

case in favour was this week. The Court pointed out in paragraph93 of your Judgment ⎯ I take

the Belgian case as the illustration ⎯ that the point had been argued by the Respondents:

“The Court notes that the Applicant, in the present case, has not in fact claimed
that the Court is open to it under paragraph 2 of Article 35, but has based its right of
access to the Court solely on paragraph 1 of the Article. However, in some of the
cases concerning Legality of Use of Force , including the present one, the

Respondent... has raised the question of th e possible application of paragraph 2, in
order to contend that Serbia and Monten egro may not rely upon that text.” ( Legality
of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections ,
Judgment, I.C.J. Reports 2004, p. 315, para. 93.)

In fact the Court regarded itself as required to d eal with paragraph 2 even though it was not relied

on by the Applicant. That is rather the inversion of the normal rule that a court has to satisfy itself

of its jurisdiction. Hitherto one has not thought that the Court had to satisfy itself of its jurisdiction

when the claimant did not allege a particular ground of jurisdiction, but you chose to do it.

4. Turning to the substance of Article 35, paragraph 2, I must say that I am now unclear as to

the interpretation on which the Respondent now relies. Is it only that old treaties count, treaties in

force at the date of the Statute (in wh ich case the suggested explanation of the Upper Silesia case

will not do)? Or is it only treaties which can be described as part of the peace settlement (in which

case the Court in the NATO cases was wrong on Serbia’s account, because it recognized no such

exception)? Does Article35, paragraph2, mean the same as it did under the PCIJ Statute (in

which case the different status of this Court under the Charter is irrelevant)? Or does it have a

different meaning (in which case the travaux of the PCIJ Statute and the practice of that Court are

irrelevant)? The position was not clarified. - 22 -

5. Except on one point, Mr.Djeri ć did not attempt to follow my analysis of the travaux of

Article 35, paragraph 2. I showed on Wednesday the following:

(1) The first version of Article 35 (2), then numbered Article 32, was introduced following British

criticism that the previous version, which allowed access only through the Council, did not deal

with treaties made and to be made with the Central Powers.

(2) No one in the debate treated the problem as limited to the peace treaties already concluded.

They were explicitly treated as mere examples, both by Mr.Ricci-Busati in his repeated

comments and by Mr.Hagerup. Indeed the redr afted version of Article32 introduced by

Mr.Hagerup expressly included the phrase “for example”. You might think not very good

drafting, but clear on this point.

(3) At the time Article 35 (2) was finally adopted, the drafters had rejected a provision giving the

Court compulsory jurisdiction but were looking forward to a future general treaty of arbitration

involving the Court. For that project to work, it had to have the widest possible participation.

(4) By that stage it was clear that important States would not be, for some time if ever, parties to

the Covenant of the League. Yet it was vital th at they should be involved in the continuing

project of peaceful settlement through the Court.

(5) Access to the Court was not to be limited to League Members or to those approved by the

Council. Access through treaties in force was an alternative to access through the Council.

DMjrr..i ć asserts that there is no evidence that M.Fromageot, in responding to

MaxHuber, was talking about what is now Article35, paragraph2. I would make the following

points:

(1) There was no separate debate on Article 36, paragraph 1, as it now is, draft Article 33 as it then

was. The three draft Articles32 to 34 that I showed you on the screen on Wednesday were

introduced together and debated together.

(2) If Max Huber had wanted to talk about Article 36, paragraph 2, draft Article 33, he would have

used the phrase “treaties and conventions in fo rce”, which was the phrase used in that Article

and used now in Article36(1). But he did not ; he used the phrase “t reaties in force” which

was taken from draft Article 32 and is now the language of Article 35, paragraph 2. - 23 -

(3) MaxHuber knew a thing or two. He did not need to ask whether the phrase “treaties and

conventions in force” in what is now Article36 (2) meant treaties and conventions in force at

that time. It was blindingly obvious that it meant treaties in force from time to time. The

debate that was going on at the time concerned the peace treaties, to which non-League

Members were parties and which provided for the Court’s jurisdiction.

(4)Mr.Hagerup subsequently explained the point in precisely this way in his report to the

ThirdCommittee; it was approved by the League organs on that basis, although the

formulation “subject to special provisions contained in treaties in force” ⎯ the language as it

stood at the time of Mr. Fromageot’s answer ⎯ was finally retained.

7. I referred on Wednesday to the practice of States in the League period. There can be no

doubt that the Treaty of Lausanne when it was finally adopted in 1923 was considered a “treaty in

force” for the purposes of Article 35, paragraph 2. I cited Fachiri to that effect: Mr. Djeri ć made

no mention of either the Treaty of Lausanne or the literature concerning it. Article 44 of the Treaty

of Lausanne referred minorities disputes to the Permanent Court. Imagine if in1925 Greece had

taken a minorities dispute against Turkey to the C ourt but the Court had refused jurisdiction on the

ground that Turkey had not filed a declaration under the Council resolution of 1922! Turkey was

willing to file a special declaration for the particular case in the Lotus ⎯ though it was not filed in

advance, as the resolution required. But wh at if it had refused to go under the resolution ⎯ as one

can well imagine it might have done if the case had been brought by Greece concerning minorities

rather than France concerning a spat over Li eutenant Demons. Was the Court to refuse

jurisdiction? Of course not.

8. But it was not just the Treaty of Lausanne of1923 or the Upper Silesia Convention of

1922: many treaties were concluded with non-Leag ue Members referring matters to the Court. I

refer you to the list of treaties you will find at tab 12in your folders. I do not represent that it is

complete, although I do admit that it has taken so me time. Under headingA you will find listed

treaties with non-League Members concluded after th e conclusion of the PCIJ Statute. There are

some rather important treaties here, the interna tional legal history of the 1920s could be written

about around many of these treaties: the German-French Treaty concerning Delimitation of the

Frontier of1924, the Locarno Treaties (which Mr.Djeri ć also did not mention), a subsequent - 24 -

Arbitration Treaty between Germany and the Nether lands, many treaties of Turkey and Iceland, a

Greek-Turkish Treaty of Friendship of1930, and so on. Was the Court to turn its back on these

and on the Upper Silesia precedent? Again, of course not.

9. I would also note that from the mid-1920s there was a potential problem with departing

States, including Brazil and Costa Rica. I give under headingB just two examples of Brazilian

PCIJ treaties that stayed in force after Brazil left the League. Now Brazil presumably continued to

have access since it was listed in the Annex to the Covenant ⎯ even though it has turned its back

on the Covenant ⎯ but Germany, which left later, was not listed, and nor was CostaRica, which

left in 1925.

DMjer.i. ć referred to the discussion in the Perm anent Court in1926 in relation to the

revision of the Rules. The background to that discussion can be seen from the Minutes of the

Eighth Meeting of the same session, which is tab 13 in your folders (P.C.I.J., Series D, Addendum

to No. 2, pp. 75-77). I refer in particular to page 75. The Registrar, Hammarskjöld, later a judge,

pointed out that in the Wimbledon case, “it had been decided that the obligation in question [that is

the obligation because they were talking about the implementation of the Council resolution, the

obligation to accept the Court’s jurisdiction in ac cordance with that resolution] could only be

imposed on the applicant Party and not on the respondent”.

That is one situation. I will revert to anothe r in which there may well be a difference between the

two. The Respondent in the Wimbledon case was Germany, lacking access to the Court except

through Article35(2). Germany never made a declaration under the Council resolution, whether

as a matter of deliberate policy or not, I have not been able to find out, but the fact is that it did not.

And the reason for Hammarskjöld’s remark is obvious; if a respondent could frustrate a treaty

obligation to submit a matter to the Court by simply refusing to make a declaration under the

Security Council resolution, then the treaty w ould be nugatory. The Council resolution was for

volunteers. As I mentioned on Wednesday, Turkey in the Lotus case was persuaded to a make a

particular declaration ⎯ but what if it had refused? Was the special agreement in such a case to be

made ineffective by the unilateral act of the Responde nt? That takes us back to nineteenth century

arbitration. - 25 -

11. This is the background to the discussion at the 22nd meeting to which you were taken

yesterday by Mr.Djeri ć (P.C.I.J., SeriesD, Addendum to No. 2, pp. 104-107). The following

points should be made:

(1) Judge Anzilotti thought that Ar ticle35, paragraph2, should be limited to “agreements to be

considered as supplementary to the Treaty of Versailles”. That is a slightly curious formulation

because it should have been agreements to be considered as supplementary to the Treaty of

Versailles or the Treaty of Trianon, or the Treat y of Saint Germain etc., the Treaty of Sèvres,

which had already been concluded but had not been ratified. So the interpolation in Article 35,

paragraph2, was already a rather long, one but that is what he thought. But his actual

proposal ⎯ the proposal being debated by the Court ⎯ was neutral on the point ⎯ it simply

referred to “cases in which a declaration in acco rdance with the Council resolution is required”

(ibid., p. 105), without stipulating when.

(2) The President, Huber, noted that having regard to the Hagerup Report “it was quite possible to

arrive at the wide interpretation of Article35 adopted by the Court in the Upper Silesia case”

(ibid., p. 106). He went on to say that “whether a declaration was or was not required” should

be left to be decided if the issue arose (ibid., p. 106). And that was what was done.

(3) Manley Hudson is correct in saying that “In the revision of the Rules in 1926, the Court seems

29
to have preferred to leave open the question as to the meaning of ‘treaties in force’.” TPFPT

12. It is true that there were opinions which favoured forcing States to go through what I will

call the Council route, either through membership of the League or the adoption of a declaration

under the Council resolution. ManleyHudson himself was of that opinion ⎯ but then he was an

ardent proponent of United States membership of the League, or at least of the Statute of the Court.

Even so, his view was far from categorical:

“Is the expression ‘treaties in force’ in Article35 equivalent to the expression

‘treaties and conventions in force’ in Article 36? There can be no doubt that the latter
expression refers to the future. Is the expression in Article 35 analogous to ‘a treaty or
convention in force’ referred to in Article 37? It seems doubtful whether the latter is

to be applied in the future indefinitely. [He is talking about Article37, which was a
transitional provision.] Article35 may ha ve been [may have been] intended to

29
TPM.O. Hudson, The Permanent Court of International Justice. A Treatise (New York, Macmillan, 1934), p. 349. - 26 -

safeguard provisions in the peace treaty made with Turkey; yet the Treaty of Lausanne
was not signed until July 24, 1923 . . .” TPFPT

He saw the point. He then refers to the Wimbledon and the Upper Silesia cases, both of course

involving Germany, and to the 1926 revision of the Rules, and continues:

“If the implications of this decision [he is referring to Upper Silesia ] were
carried out, it would be possible for two St ates to escape the Council’s conditions by

entering into a treaty; indeed, if special agreements were included among treaties in
force, the Council’s resolution might never be applicable. It is clearly necessary for

some restrictive meaning to be given to this provision in Article35; it ought to be
confined to treaties relating to the liquidati on of the war, and the action taken in the

case of German Interests in Polish Upper Silesia ought not to serve as a general
precedent.” TPFPT

That is what Hudson said. He does not refer to Judge Fromageot’s opinion, to Hagerup’s report, or

to the Locarno treaties. To be fair, he was writing just before Germany withdrew from the League.

13. The following comments should be made about this influential passage in Hudson’s great

book.

(1) His view was, as he recognized, contrary to the only decided case in point, the Upper Silesia

case.

(2) It is expressed more or less de lege ferenda: “It seems doubtful . . .”; “ought not to serve as a

general precedent”.

(3) It fails to address the point that in the dr afting of Article35, paragraph2, access through the

Council and through treaties in force was thought of, and in its actual formulation was

expressed, clearly in the alternative. The powers of the Council are not expressed to override

treaties in force: they are distinct routes. I st ress that there was no equivalent to Article 103 of

the Charter in the Covenant of the League. Th e idea that a Council resolution could override a

treaty in force was not on the mental horizon of th e drafters of Article 35, paragraph 2, of the

Statute.

(4) There is no interwar opinion I have been able to find which confines Article 35, paragraph 2, to

treaties already in force in September 1921.

(5) Above all, to limit Article 35, paragraph 2, to “treaties relating to the liquidation of the war” or

to “agreements . . . considered as supplementary to the Treaty of Versailles [and the other

TPIbid.

TPIbid., p. 350. - 27 -

treaties]” is completely to rewrite the Article, and goes far beyond the legitimate use of travaux

in the interpretation of treaties. It is to substitute a reading ⎯ I have shown it is the wrong

reading ⎯ of the travaux for the language of the Article. Assuming for the sake of argument

that the phrase “treaties in force” could mean “tr eaties already in force”, then all the authorities

on the Statute of the Permanent Court are opposed to that reading, without exception, Anzilotti

and Hudson included. Moreover, as I have shown, the Article has to be rewritten already, if the

NATO decision is to be sustained: it has to mean “treaties in force in1945 which are still in

force”. It does not say that, either. Mr. Djerić did not attempt to meet that argument either.

14. Mr. Djerić did argue the catastrophe theory of interp retation: the skies will fall, he said,

as though apprehended to fall on Ch icken Little, if the Council resolution could be avoided by a

treaty. In Hudson’s words, “if special agreem ents were included among treaties in force, the

Council’s resolution might never be applicab le”. What a tragedy! Two States ⎯ they have to be

States, Article 34, paragraph 1 ⎯ agree in a legally binding treaty to resort to the Court rather than

to arbitration. Of course that agreement enta ils a commitment to be bound by the decision.

Institutional costs are for the Court to apporti on: the Council has no power to implement the

decision but it did not have that anyway. No third party is affected; there is no access to the

optional clause system–– for that you have to be a Member. One can understand the policy

argument, that it was better to force States to go the Council rout e –– that was Baron Descamps’s

view when we were trying to maximize membership in the League. But once it was clear that that

was not going to work, another strategy was a dopted–– and this is the fundamental point––

another strategy was adopted, which open ed the Court to access by treaties in force faute de mieux

in terms of universality. Baron Descamps’s view wa s clearly rejected in the drafting of Article 35,

paragraph 2, in favour of a view which supporte d access to the Central Powers, both as applicants

and respondents, in relation to trea ties concluded and to be concluded ⎯ and as a straightforward

alternative to access via the Council.

15. Madam President, Members of the Court, for all these reasons, the restrictive ⎯ I have to

say the destructive ⎯ view of Article 35, paragraph 2, should be rejected. - 28 -

(b) The Mavrommatis point

16. I turn to my second point, the Mavrommatis point. I dealt at some length with the

Mavrommatis principle on Wednesday and again will not repeat in any detail what I said. On

1November 2000 all four conditions for jurisdiction were met and, in our view, incontestably so.

They were, one: seisin; two: a basis of claim; th ree: consent to jurisdiction; four: access to the

Court. The Respondent, through ProfessorVarady, denies three of them. The second and third

come down to the question whether the Genocid e Convention was in force for the Respondent

continuously from the beginning of the conflict or not. Professor Sands has dealt with that already:

that is why it is the Respondent’s most substantia l jurisdictional objection in this context. I accept

that that objection is not suscep tible to being overcome by the Mavrommatis principle. If the

Respondent became a party to the Convention on ly on 11March2000, and irrespective of the

validity of its reservation, then the Mavrommatis principle would not have been satisfied at an

earlier date. But of course the Respondent was a party to the Genocide Convention in 1999 without

reservation, as you have already decided. And it was a party by succession to the beginning of the

conflict, stare decisis.

17. That leaves only the issue of seisin in November 2000, and it explains how desperately

ProfessorVarady yesterday argued that the Court did not have seisin of this case. It says

something about international lawyers that we can be passionate about seisin, and Professor Varady

is an international lawyer, very certainly. In other words, he said the case was wrongly entered in

the List. He thereby gaily trashes a decade of litiga tion by this State, the respondent State, imagine

the wasted costs ⎯ the 40 legal acts before the Court I listed to you the other day.

18. But as between States qualified under Article 34, paragraph 1, to appear before the Court,

an apparent title of jurisdiction is sufficient to give seisin, and this no matter how implausible the

jurisdictional basis may appear, no matter how pred ictable its eventual dismissal may be. Of

course in our case, neither of those qualifications applies. There is a strong prima facie basis of

jurisdiction under either Article35(1) or 35(2), and the dismissal of our claim on jurisdictional

grounds is not at all predictable, at least not on our side of the Bar. But that is irrelevant: there is

seisin. - 29 -

19. You rightly acted in the NATO cases on the basis that you had seisin. Once it became

clear after argument in the United States and Span ish cases that there was no basis for jurisdiction

whatever, you struck the cases out, ag ain quite rightly. But that was an exercise of

competence-competence, not a denial of it. There is no suggestion that the cases should not have

been entered in the List.

20. In the present case, it is frankly ab surd to suggest that you do not have

competence-competence, or that the Croatian Application is somehow nul et non avenu . It shows

the ridiculous extent to which the Respondent is fo rced to go in order to sustain the claim that it

was absent from the Court in the 1990s. As JudgeSchwebel remarked in Request for an

Examination of the Situation, if the Court is not seised of the case, why are you wearing gowns?

21. This position is of long standing, and go es to the root of the competence-competence

doctrine, fundamental to modern judicial se ttlement, fundamental to the Court. In the Lotus, as I

said, the Permanent Court treated itself as seised even before Turkey made its declaration under the

Council resolution. It is with respect self-evide nt that the Court was seised of this case on

1 November 2000 when on any view the Respondent had access to the Court.

22. ProfessorVarady said that the Mavrommatis principle does not apply to fundamental

issues such as access to the Court. But there is no authority for this. The peremptory requirement

is statehood, as set out in Article34, paragra ph1: all other obstacles can be overcome by

procedural steps such as compliance with Security Council resolution9(I). It is, incidentally,

rather odd to treat compliance with Security Co uncil resolution 9 (I) as a matter of capacity. Any

State can make a declaration and the declara tion gives it access unquestionably under the second

alternative in Article 35, paragraph 2. It is odd to think of a State giving itself capacity by making

a declaration that no other State can stop it from making. An incapacity I can remove by making a

unilateral declaration is a strange form of incapacity.

23. I stress that neither Professor Varady nor Mr. Djeri ć made any mention of the point that

Croatia could certainly have started this very case again on the day it filed its Memorial. Filing the

Memorial clearly amounted to an affirmation of our Application, a fundamental step in the

proceedings that must have legal significance. Assume that the bilateral FCN treaty in the

Nicaragua case had been terminated before Nicaragua filed its Memorial ⎯ it was actually - 30 -

terminated afterwards ⎯ could it have been relied on by Nicar agua after it had been terminated?

The answer must be, no. The filing of the Memorial clearly has legal significance.

24. Madam President, Members of the Court, in a way I am sorry that there is not more to

say on this point, because it is ⎯ having regard to the state of the authorities before the Court ⎯ by

a margin the simplest and mo st straightforward way of upholding your jurisdiction without

contradicting, or seeming to contradict, any earlier decision. It does not contradict the Bosnia case,

since it is an alternative path to the same destin ation, and international law recognizes alternative

paths to jurisdiction. Nor does it contradict the NATO cases: the Mavrommatis principle was

wholly inapplicable in the NATO cases, since there was no moment when all jurisdictional

requirements in that case were satisfied. So in this sense, with great respect, I commend it to you.

(c) Judge Abraham’s question

25. That brings me to Judge Abraham’s questi on: does it make a difference that Serbia was

Applicant in the NATO cases but Respondent here? Evidently it makes no difference under the

normal operation of jurisdictional requirements un der Article35, which apply reciprocally, in

accordance with their terms, both under paragraph 1 and paragraph 2. I should say that there was

great emphasis in the travaux of Article35, paragraph2, on the equal treatment of the Central

Powers; they were not just there to be respondents. Of course, in the Polish Upper Silesia case,

Germany was the Applicant. But it may well make a difference, at least in practice, in the situation

where the Mavrommatis principle is being relied on. There was never any possibility, as I have

said, for that principle to operate in the NATO cases, since there was no moment in time at which

all jurisdictional elements were combined. But a respondent which is subjected to proceedings that

it considers unfounded can always make it clear, at a very early stage, that it does not waive any

missing elements, as Spain and the UnitedStates made it clear in NATO at the provisional

measures stage, and as France made it clear in the Request for an Examination of the Situation. As

soon as this is clear, then on the first procedur ally-appropriate occasion, the Court may have to

have a hearing to find out whether it wa s clear: that is what happened in the New Zealand v.

France case. As soon as it is clear, the Court will act accordingly and dismiss the case, if necessary

ex officio. But if a respondent State ⎯whether through waiver, as with the United States in - 31 -

United States Nationals in Morocco , or by the making of a declaration under a Security Council

resolution ⎯ as, on the Respondent’s argument, must have been Turkey’s situation in the Lotus ⎯

or by the admission of the respondent State to the Statute or to the Charter ⎯ as here ⎯ then the

conditions for jurisdiction are united and the Resp ondent, which by definition will have brought

this new situation about, can no longer object. On the other hand, to commence proceedings is in

itself to waive any jurisdictional defects which it is within the power of the Applicant to waive. An

applicant cannot, so to speak, approbate and reprobate in respect of its own application ⎯ although

that does not seem to hinder the Respondent in this case ⎯ any more than a State can claim

immunity in relation to the very case it has itself commenced before a domestic court.

26. I did not hear Serbia respond yesterday to Judge Abraham. Croatia reserves the right to

comment on the Respondent’s eventual response within the time-limit laid down by the Court.

Preliminary objection 2: Responsibility before 27 April 1992

27. I turn to preliminary objection2. The Respondent’s argument here resembled nothing

more than a series of logical conundrums posed by a schoolmaster: I thought we might be strolling

in some cloister rather than standing in a courtr oom. And I fear that the Agent, Professor Varady,

has caught the disease of logicism from ProfessorZimmerman. I can well see how that can

happen: Professor Zimmerman has it very badly.

28. But in the spirit of the academy let me illu strate the problem with a hypothetical case.

Assume a State party to the Genocide Convention without reservation has an ethnically-mixed

province. A rebel movement in the province, of one ethnicity, seeks to secede and slaughters a

large number of the others in the province on the ground of their different ethnicity. The remainder

are forced to flee, and thus cleansed, the province declares its independence. But saner leadership

in the former rebel movement then prevails ⎯ it is now the government ⎯ and the government

announces the new State’s succession to the Genocide Convention without reservation. According

to ProfessorZimmerman, it is nonetheless logically impossible to hold the new State responsible

for the conduct of the movement. The movement could not be bound by the Genocide Convention

and the new State could not be bound before it cam e into formal existence. Instead of treaty - 32 -

succession creating continuity, this appr oach inevitably creates discontinuity ⎯ but after all, logic

dictates it, thus it must be so.

29. Madam President, Members of the Court, this is the jurisprudence of forms, divorced

from reality.

30. But Professor Varady did address Article 10 of the ILC Articles, logically impossible as

to treaties, however it may be according to Pr ofessorZimmermann. And citing Rosenne he did

concede that responsibility for breach of treaty could be attributed to a State for events prior to its

declaration of independence, though with due caution ⎯ Rosenne is a cautious author. He might

equally have cited the less cautious Professor Brownl ie to that effect. I quoted Professor Brownlie

on Wednesday, but Yugoslavia seemed une nthusiastic about this authority ⎯ at any rate, he was

not mentioned yesterday! Nor was the Eritrea-Ethiopia Compensation Commission decision on

pre-referendum Eritrean nationality cited. Professo rZimmermann did not tell us how its decision

was to be squared with his imperative categories.

31. But as soon as one makes that concession ⎯ whether with Rosenne or with Brownlie and

with however many cautionary notes ⎯ as soon as one accepts that there can be attribution for

pre-independence acts ⎯ then we are outside the realm of admissibility altogether and into the

merits: the question then becomes essentially one of fact and appreciation. And the Court will

have noted that following his citation of Rosenne, the Agent did not merely paddle on the edges of

the sea of the facts; he dived in fully clothed, swimming off furiously. I am afraid that despite

your injunction, Madam President, I need to follow him just a little, just to see if he is still afloat.

32. ProfessorVarady asserted that there wa s no movement in Belgrade which sought the

creation of an independent Serbian State. He claimed that a movement to create the Federal

Republic of Yugoslavia did not exist at all. A pparently the FRY was a spontaneous creation on

27 April 1992, created ex nihilo after everyone else in the SFRY had unaccountably left the room

and abandoned the party. But, of course, there is plenty of evidence on the existence of a Serbian

national movement oriented on the creation of a Greater Serbia ⎯ a matter which we merely ask

you at this stage to note, since adjudication on the facts would be premature. - 33 -

33. Let me take, by way of example, one Vojis lav Šešelj, talking to the paramilitaries in the

city of Benkovac, in the occupied part of Croa tia, on 23November1991. He said (it is in the

pleadings):

“ We cannot cross the Serbian borders w ith a Serbian army! Do you want the
Desert Storm here... I want a Serbian army when I get a Serbian state! Now we

want to set the borders. Diplomatically we are O.K. because we want Yugoslavia
without Slovenes and Croats. An army mixe d with politics is not good . . . We must

fight for Serbia that covers all Serb territories! We shall call such a Serbia Yugoslavia
as long as that is in our interest.” TPFPT

34. In March 1991, one Slobodan Milošević, acting as the President of Serbia, said:

“The Presidency of SFRY, which is also a Supreme Command of Armed Forces
of Yugoslavia, was a source of an organised obstruction of the work of JNA, which is

obliged and capable to protect the citi zens from the war, either civil or
conquering[...] I have ordered a mobili sation of reserve Republic of Serbia MUP

security forces and urgent establishment of a dditional police forces of the Republic of
Serbia. I asked the Government of the Republic of Serbia to carry out necessary

preparations for the establishment of th e additional forces in number that would
guarantee protection of interests of the Republic of Serbia and the Serbian people . . .

The citizens of Serbia should know that the Republic of Serbia is able to provide full
protection of the interests of the Republic, all its citizens and the Serbian people.” TPFPT

The PRESIDENT: Professor Crawford, I think you are in danger of going the wrong side of

a line.

Mr.CRAWFORD: I felt that myself, this is slightly rhetorical speech. Once you say

rhetorical . . .

The PRESIDENT: I think you’ve made the point that you differ on this since you’ve given

an example.

Mr. CRAWFORD:

35. According to ProfessorVarady this was not a movement. We should no doubt be

grateful that it was not: may we be preserved from such non-movements!

36. Of course in cases covered by Article10(2) of the ILC Articles ⎯ or by the principle

stated in different terms by Rosenne and Br ownlie, there will be a competing authority ⎯ or at

TPMC, 1 March 2001, Vol.5, App.2, pp.42-43. Transcri pt of a video clip of VojislavŠešelj’s address to
paramilitaries in Benkovac, occupied part of Croatia, 23 Nov. 1991. Filmed by paramilitaries themselves.

TPICTY, case IT-02-54-T, Exhibit P328, tab 29, entered through Stipe Mesic, 1 Oct. 2002. - 34 -

least will normally be ⎯ the Eritrea case was slightly exceptional in that regard. In such cases the

issue is reduced to one of factual control.

37. Further evidence on this point can be found in ICTY cases ⎯ to quote only one example,

the Revised Second Amended Indictment against Momcilo Perisic, dated 5 February 2008 TPPT

38. Professor Varady –– I have now regained, Madam President, dry land! Professor Varady

gave a novel interpretation to the words “succeeds in establishing a new State”. He seemed to

think it meant “succeeds in all its aims in the course of establishing a new State”.

Madam President, it falls to few of us to succeed in establishing all our aims in life, and this is true

(one might say a fortiori) of movements aimed at creating ne w States. The nationalist movement

ended up in creating the Federal Re public of Yugoslavia, consisting of Serbia and Montenegro; it

failed to get general recognition of its continuity with SFRY. Howe ver, the fact that the Serbian

national movement ended up with the old borders of Serbia and the new name of a State rather than

what it aspired to ⎯ different borders and the old name ⎯ does not change the fact that it did

establish that State and that that State ⎯ the respondent State ⎯ carries responsibility for

internationally wrongful acts committed in th e process which were attributable to it under

international law.

39. Finally ProfessorVarady asserted that the ILC did not have the sui generis case of the

FRY in mind when it drafted Article 10, paragraph 2. But the world of movements “insurrectional

or other” is full of variety, and paragraph 10 of the ILC Commentary states that: “This terminology

[insurrectional or other] reflects the existence of a greater variety of movements whose actions may

result in the formation of a new State.” The category of movements is not closed.

40. For these reasons the Applicant’s cl aim to responsibility under the Convention,

extending to the beginning of the conflict in Croatia is admissible. That is all you need to decide.

Preliminary objection 3: admissibility of claim 2 (a)

42. Madam President, Members of the Tribunal,

The PRESIDENT: Did I year you say “Members of the Tribunal”, Professor Crawford?

34
TIT-04-81-PT, 5 Feb. 2008, paras. 6-7. - 35 -

Mr. CRAWFORD: I am sorry, let me rephrase that. I was not referring to the Tribunal.

Madam President, Members of the Court, fina lly I should say a word about the admissibility

of claim2 (a) in Croatia’s submissions in its Memorial, which reads “to submit to trial before the

appropriate judicial authority” persons suspected on probable grounds of genocide. Serbia argues

that under Article VI it has no responsibility excep t in relation to persons who committed genocide

in Serbia. There are two simple answers to this . First, persons found in Serbia suspected of

committing genocide in Croatia can still be submitted to trial before the ICTY ⎯ which is a

tribunal ⎯, and Serbia would on that hypothesis still ha ve obligations to fulfil. Secondly, the

phrase “the act was committed” in ArticleVI refe rs, we submit, to the act charged against the

defendant in question, not to the global act of genocide, but to the act charged against the

defendant. Otherwise, the determination of venu e for genocide will be extraordinarily difficult.

When crimes are committed in a trans-boundary context is a complex matter, highly facts

dependent. For these reasons, Croatia’s first claim to relief is not inadmissible. How it fares on the

merits will depend on the facts.

Madam President, Members of the Court, thank you again for your attention. I would ask

you, Madam President, to call the Agent for Croatia to conclude our response and to present our

submissions.

The PRESIDENT: Thank you, Professor Crawford. And now we do call Dr. Šimonović.

ŠMIr.ONOVI Ć:

CLOSING REMARKS

1. Madam President, Members of the Court, thank you very much for your patience during

the course of this week with this challenging case. In my closing remarks, I will try to be short and

to the point.

2. I believe that during these two rounds Croa tia as the Applicant managed to cover all

relevant issues and answer all questions raised, either by the Court, or by the Respondent. We have

proved that the Genocide Convention was in force at all times, that bot h the Applicant and the

Respondent had access to the Court and that the Applicant’s submissions are based on facts and - 36 -

law, in particular the Genocide Convention, and ar e, thus, admissible. I would just like to add a

couple of clarifications.

Lack of ICTY genocide charges

3. Although the Respondent admitted that numerous war crimes have been committed during

the conflict in Croatia, it questioned whether a ny of them amounted to genocide. Its crucial

argument in this respect was that the ICTY di d not bring charges against any individual for

genocide committed in Croatia.

4. First of all, this issue belongs to th e merits. It is very difficult to address it,

Madam President, while obeying the Court’s instruc tions regarding this hearing. But I will do my

best.

5. The ICTY is a subsidiary organ of the United Nations with the task of prosecuting war

crimes, crimes against humanity and genocide committed during the conflict in the former

Yugoslavia. Because of capacity constraints, face d with piles of evidence on war crimes, it had to

use prosecutorial discretion to decide for whic h individual crimes committed in the former

Yugoslavia to raise charges. We would not like to second guess the reasons for which the

prosecution has not raised any charges against higher Serbian military officials for crimes

committed in Croatia, which could have involv ed genocide. For some of them, such as

Ratko Mladić, who committed crimes in both Croatia a nd Bosnia and Herzegovina, genocidal

charges have been raised only for the latter. No matter what the reasons, I would like to remind

you of the following facts.

6. It was in the Bosnia v. Serbia Judgment that this Court, Madam President, as the principal

judicial body in charge of establishing State res ponsibility, and one of the main organs of the

United Nations concluded that

“State responsibility can arise under the Convention for genocide and complicity,
without an individual being convicted of the crime or an associated one” ( 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. 182).

Deciding this, the Court was obviously aware of the constraints of the ICTY and of its own role. - 37 -

7. Croatia raised genocide charges agains t a number of persons for genocidal acts ⎯

mentioned in our Memorial ⎯ with full names of victims, witnesses, as well as their

perpetrators ⎯ most of whom are now presumably in Serbia.

8. Other organs of the United Nations e xplicitly expressed concerns related to the

qualification of war crimes committed in Croatia and Bosnia and Herzegovina from the perspective

of the Genocide Convention.

⎯ At its Second Special Session in 1992, the United Nations Commission on Human Rights in

operative paragraph 12 of its resolution:

“Calls upon all states to consider the extent to which the acts committed in

Bosnia and Herzegovina a nd Croatia constitute genocide, in accordance with the
Convention on the prevention and Punishment of the Crime of genocide.” TPFPT

⎯ The General Assembly repeated the same call in operative paragraph 16 of its resolution on the

36
situation of human rights in the territory of the former Yugoslavia adopted the same year TPPT

Madam President, Members of the Court, the Republic of Croatia feels obliged to answer

this call. In our view, the Court of Justice, as one of the main United Nations organs, is the right

place for these issues to be addressed.

NATO cases social framework

9. MadamPresident, Members of the Court, during the first and the second round of our

presentation, we have clearly shown that the C ourt’s reasoning regarding its jurisdiction in the

genocide cases followed a coherent and consistent lin e of reasoning, with a single exception: it is

the Judgment of the Court in the NATO cases.

10. First of all, the NATO cases were unusual. Or, rather, the behaviour of the Applicant in

these case was extremely unusual. From the outset, it was clear that the FRY did not have a case

against the NATO States. Although fully aware of their legal futility, Miloševi ć’s régime started

the proceedings. The ambition was not to win them, but rather to:

⎯ use them for propaganda purposes, and

TPSecond Special Session of the Commission on Human Rights on the situation of human rights in the territory of

the former Yugoslavia, 30 Nov. and 1 Dec. 1992.
36
TPGeneral Assembly resolution A/RES/47/147 of 26 April 1993 on the situation of human rights in the territory of
the former Yugoslavia, adopted on 18 Dec. 1992. - 38 -

⎯ harm proceedings in the genocide cases brought against the FRY by Bosnia and Herzegovina

and Croatia.

11. Aware of various weaknesses of the case, including those regarding jurisdiction, the

Applicant did not invest the usual effort to estab lish jurisdiction. The Applicant, in fact, did

exactly the opposite: it raised objections to the Court’s jurisdiction itself.

12. 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 indicative of the absurd situation: no applicant

State has ever before made a jurisdictional objection to its own application.

13. Yesterday the Respondent insisted that Article 35 (2) has been argued in the NATO cases.

I would like to remind the Court that in the NATO cases the issue was argued solely by some of the

Respondents, and not Serbia, as the Applicant. The arguments on Article35(2) presented by

Professor Crawford, therefore, appear for the first time from the Applicant’s perspective. The same

applies to the Mavrommatis principle, although that was discussed by at least one Member of the

Court in your 2007 decision.

14. When comparing the decisions on lack of jurisdiction in the NATO cases and the

possibility of establishing jurisdiction in the Croa tian case, the Respondent suggested that Serbia

would be given different answers to the question of jurisdiction. Firstly, for reasons elaborated by

Professor Crawford, from a legal point of view, the situations are not the same. Secondly, because

of its own behaviour, Serbia deserves these two different answers.

15. The answer to the honourable Judge Abraham’s question: what is the difference between

Serbia and Montenegro as Applicant in the NATO cases, and Serbia as Respondent in this case,

with respect to access to the Court in the sense of Article35 of the Statute ⎯ should follow the

same line of reasoning. Professor Crawford elaborated on the legal differences. I would like to put

those legal differences into their social context.

16. In the NATO cases, Serbia and Montenegro was an applicant who did not behave like an

applicant. When arguing jurisdiction, it behaved like a respondent. In those cases, there were only

respondents: there was no real applicant at all. The difference is that in this case, Croatia is a real

Applicant. - 39 -

17. Madam President, Members of the Court, the border between the desired respect for legal

form and undesired legal formalism is sometimes a small one. Adopting the Mavrommatis

principle is a good way of solving this dilemma. This principle has not been invoked by Serbia and

Montenegro as the Applicant in the NATO cases, and probably with good reason. But this does not

mean that it should not be implemented when in voked by the Applicant in this case. Serious

genocide cases should be decided in the merits phase, if possible.

Mootness of submissions

18. I believe that already during the first round we have proved that our submissions are

neither inadmissible, nor moot. Professor Crawfo rd addressed inadmissibility while I dealt with

mootness. Unlike Monday, yesterday we heard very little about the alleged mootness of our

submissions. I would like to conclude that argument by indi cating that this case has already

positively affected individual requests containe d in our submissions; proceedings against

perpetrators, tracing missing persons and the return of cultural property. Pressure stemming from

the genocide charges helps to achieve some results. However, there is still a long way to go before

Croatia can be satisfied.

19. This should not be the reason to terminate these proceedings, but just to the contrary. It

proves how important it is to continue this cas e in order to fulfil requests contained in our

submissions.

20. For Croatia, it is of utmost importance that the requests contained in our submissions are

fulfilled: the sooner, the better. We wish they become moot as soon as possible. But until they do,

this case has a continuing and important role.

Reflections of this case on others

21. In these proceedings, protecting its own in terests, Croatia also protects some broader

interests and general principles.

⎯ A negative decision on jurisdiction in the Croatian case would surely have adverse

consequences for the Bosnia case, the first Judgment in history establishing the responsibility

of a State for the crime of genocide. If there is no jurisdiction for Croatia, then not only your - 40 -

Orders and decisions on jurisdiction of 1993 an d 1996 will be treated by many as wrong, but

the Judgment in merits of 2007, as well.

⎯ Serbia has not yet confronted its responsibilit y for sufferings in Croatia from 1991 to 1995.

The establishment of truth and responsibility for past events, including State responsibility, is

vital for sustainable peace, stability and co-ope ration in south-east Europe and its European

future.

⎯ By insisting on a broad coverage by the Ge nocide Convention, and other humanitarian and

human rights instruments, with no gaps in its application, Croatia seeks to promote the interests

of civilians in turmoil and conflict, characteristic of processes of dissolution and the emergence

of new States.

22. Madam President, Members of the Court, th ank you for your attention. This concludes

the second round of Croatia’s oral pleadings. With your permission, I will now read Croatia’s final

submissions.

Submissions

23. On the basis of the facts and legal argum ents presented in our Written Observations, and

as presented during these oral pleadings, the Re public of Croatia respectfully requests the

International Court of Justice to:

(a) reject the first, second and third preliminary objections of Serbia, with the exception of that part

of the second preliminary objection which relates to the claim concerning the submission to

trial of Mr. Slobodan Milošević, and accordingly to

(b) adjudge and declare that it has jurisdiction to adjudicate upon the Application filed by the

Republic of Croatia on 2 July 1999.

Thank you, Madam President.

The PRESIDENT: Thank you, Dr. Šimonovi ć. The Court takes note of the final

submissions which you have just read on behalf of Croatia.

That brings us to the end of the hearings on the preliminary objections raised by Serbia. I

should like to thank the Agents, counsel and a dvocates for their statements. In accordance with

practice, I request that both Ag ents remain at the Court’s dis posal to provide any additional - 41 -

information it may require: and with this proviso I now declare closed the oral proceedings in the

case concerning Application of the Convention on the Preven tion and Punishment of the Crime of

Genocide (Croatia v. Serbia). The Court will now retire for deliberation. The Agents of the

Parties will be advised in due course of the date on which the Court will deliver its judgment.

The Court having no other business before it today, I now declare the sitting closed.

The Court rose at 11.40 a.m.

___________

Document Long Title

Audience publique tenue le vendredi 30 mai 2008, 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 (Croatie c. Serbie)

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