Audience publique tenue le lundi 29 avril 1996, à 10 heures, au Palais de la Paix, sous la présidence de M. Bedjaoui, président

Document Number
091-19960429-ORA-01-00-BI
Document Type
Incidental Proceedings
Number (Press Release, Order, etc)
1996/5
Date of the Document
Bilingual Document File
Bilingual Content

Nori-Corrigé
Uncorrected

International Court Cour internationale
of Justice de Justice

THE HAGUE LA HAYE

Public sitting

held on Monday 29 April 1996, at 10 &.m., at the Peace Palace,

President Bedjaoui presiding

in the case conceming the Application of the Convention on the
Prevention and Punishment of the Crime of Cenocide

(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)),

VERBATIM RECORD

Audience publique

tenue le ludi 29 avril 1996, à 10 heures, au Palais de la Paix,

8ous la présidence de M. Bedjaoui, Président

en l'affaire de l'Application de la convention pour la prévention
et la répression du crime de génocide

(Bosnie-Herzégovinec. Yougoslavie (Serbie et Monténégro))

COMPTE RENDUPresent : President Bedjaoui

Vice-President Schwebel
Judges Oda
Guillaume
Shahabuddeen

Weeramantry
Ranjeva
Herczegh
Shi
Koroma

~ereshchetin
Ferrari Bravo
Parra-Aranguren
Judges ad hoc Lauterpacht

KreCa

Registrar Vaïencia-OspinaPrésents : M. Bedjaoui, Président
M. Schwebel, Vice-Président
MM. Oda

Guillaume
Shahabuddeen
Weeramantry
Ranjeva

Herczegh
Shi
Koroma
Vereshchetin

Ferrari Bravo
Parra-Aranguren, juges
MM. Lauterpacht
Kreka, juges ad hoc

M. Valenria-Ospina, Greffier -4-

The Governent of Bosnia and Herzegovina is represented by:

H.E.Mr. Muhamed Sacirbey, Ambassador and Permanent Representativeof the
Republic of Bosnia and Herzegovina to the UnitedNations;

Mr. Phon van den Biesen Esq.;

Mr. Khawar M. Qureshi Esq.;

Mr. Marc Weller M.A.L.D.;

Mr. Alain Pellet;

Mr. Thomas M. Franck;

Mrs. Brigitte Stern.

The Goverament of Yugoslavia (Serbia and Montenegro) is represented by:

H.E. Mr. Rodoljub Etinski, Chief Legal Adviser in the Ministry of Foreign
Affairs of the Federal Republic of Yugoslavia and Professor of

International Law, Novi Sad University;

Mr. Djordje Lopicic, Chargé d'Affaires of the Embassy of the Federal
Republic of Yugoslavia, The Hague,

as Agents;

Mr. Ian Brownlie, C.B.E., F.B.A., Queen's Counsel, Chichele Professor of
Public InternationalLaw,

Mr. Miodrag Mitic, Assistant Federal Minister for Foreign Affairs of the
Federal Republic of Yugoslavia (Ret.),

Mr. Eric Suy, Professor in the CatholicUniversity of Leuven, formerly
Under-Secretary-Generaland Legal Counsel of the United Nations,

as Counsel and Advocates;

Mr. Stevan Djordjevic, Professor of International Law, Belgrade
University,

H.E. M. Shabtai Rosenne, Ambassador,

Mr. Gravro Perazic, Professor of International Law, Podgorica University,

as Counsel. -5-

Le Gouvernement de la Bosnie-Herzégovine est representé par :

S. Exc. M. Muhamed Sacirbey, ambassadeur et représentant permanent de la
République de Bosnie-Herzégovine auprès de l'Organisation des
Nations Unies;

M. Phon van den Biesen;

M. Khawar M. Qureshi;

M. Marc Weiler, M.A.L.D.;

M. Alain Pellet, professeur;

M. Thomas M. Franck, professeur;

Mme Brigitte Stern, professeur.

Le Gouvernement de la Yougoslavie (Serbie et Monténégro) est représentée

par :

M. Rodoljub Etinski, conseiller juridique principalau ministère des
affaires étrangères de la République fédérative de Yougoslavie(Serbie

et Monténégro), professeur de droit international à l'université de
Novi Sad,

M. Djordje Lopicic, chargé d'affaires à l'ambassade de la République

fédérative de Yougoslavie (Serbieet Monténégro) à La Haye,

comme agents;

M. Ian Brownlie, C.B.E.,F.B.A., Q.C., professeur de droit international
public, titulaire de la chaire Chichele à l'université d'Oxford,

M. Miodrag Mitic, ancien ministre adjoint des affaires étrangères de la
République fédérativede Yougoslavie (Serbieet Monténégro),

M. Eric Suy, professeur à l'Université catholique de Louvain (K.U.L.),

ancien Secrétaire général adjoint et conseiller juridique de
l'Organisation des Nations Unies,

comme conseils et avocats;

M. Stevan Djordjevic, professeur de droit international à l'université de
Belgrade,

M. Shabtai Rosenne, ambassadeur,

M. Gavro Perazic, professeur de droit international à l'université

Podgorica,

comme conseil S. - 6 -

Le PRESIDENT : Veuillez vous asseoir je vous prie. L'audience est

ouverte. La Cour est aujourd'hui réunie, conformément au paragraphe 4 de

l'article 79 de son Règlement, pour entendre les exposésorau des

Parties sur les exceptions préliminaires soulevées parla République

fédérative de Yougoslavie (Serbieet Monténégro) en l'affaire relative à

1'Applicationde la convention pour la prévention et la répression du

crime de génocide (Bosnie-Herzégovinec . Yougoslavie (Serbie et

Monténégro)l .

Deux membres de.la Cour, M. Fleischhauer et Mme Higgins, m'ont fait

savoir qu'ayant antérieurementconnu, en leur qualité, respectivement,de

conseiller juridiquedes Nations Unies et de membre du Comité des droits

de l'homme des Nations Unies, de certaines questions susceptibles d'être

pertinentes aux fins dela présente affaire, ils estimaient ne pas

pouvoir participer à celle-ci, conformément aux dispositions applicables

du Statut de la Cour. Je rappellerai par ailleursque la Cour ne

comptant pas sur le siège de juge de la nationalité des Parties, chacune

d'elles a fait usage du droit que lui confère le paragraphe 3 de

l'article 31 du Statut de désigner un juge ad hoc; ceux-ci ont été dûment

installés lors d'une phase antérieure de l'affaire.

L'instance a été introduite le 20 mars 1993 par le dépôt au Greffe de

la Cour d'une requête de la République de Bosnie-Herzégovine (queje

dénommerai ci-après,par commodité, la <<Bosnie-Herzégovine»c )ontre la

République fédérative de Yougoslavie (Serbie et Monténégro) (queje

dénommerai ci-après,par commodité, la «Yougoslavie») au sujet d'un

différend concernantd'une part une série de violations alléguées dela

convention pour la prévention et la répression du crime de génocide du

9 décembre 1948, que la Partie demanderesse impute à la Partie

défenderesse, et d'autre part diverses questionsqui, selon la Partie -7-

demanderesse, seraientliées à ces violations. La requête invoque comme

base de compétence l'article IX de la convention sur le génocide.

A la même date, la Bosnie-Herzégovinea présenté une demande en

indication de mesures conservatoires. Le 31 mars 1993, l'agent de la

Bosnie-Herzégovinea déposé au Greffe un document daté du 8 juin 1992

constituant, de l'avis de son gouvernement, une base de compétence de la

Cour s'ajoutant à celle indiquée dans la requête. Dans des observations

écrites présentées le ler avril 1993, la Yougoslavie a également

recommandé à la Cour d'indiquer des mesures conservatoires. Par une

ordonnance en date du 8 avril 1993, la Cour, après avoir entendu les

Parties, a indiqué certaines mesures conservatoires devant êtrp erises

par la Yougoslavie, et a indiqué en outre que les deuxParties devaient

ne prendre aucune mesure et veiller à ce qu'il n'en soit prise aucune,

qui soit de nature à aggraver ou étendre le différend existant surla

prévention et la répression du crime de génocide, ou à en rendre la

solution plus difficile

Le 27 juillet 1993, la Bosnie-Herzégovinea déposé une deuxième

demande en indication de mesuresconservatoires;et, par une série de

communicationsultérieures, elle a fait savoir qu'elle entendait modifier

ou compléter cette demande, ainsi que, dans certains cas, la requête (y

compris la basede compétence qui y était invoquée). Le 5 avril 1993, le

Président de la Cour a adressé un message aux deux Parties, conformément

au paragraphe 4 de l'article 74 du Règlement qui l'autorise à ce faire,

en attendant que la Cour se réunisse, et il a «invité les parties à agir

de manière que toute ordonnance de la Cour sur la demande en indication

de mesures conservatoires puisseavoir les effets voulus». Le

10 août 1993, la Yougoslavie a à son tour déposé une demande en

indication de mesures conservatoires. Par une ordonnance en date du -8-

13 septembre 1993, la Cour, après avoir entendu les Parties, a réaffirmé

les mesures indiquées dans son ordonnance du 8 avril 1993 et a déclaré

que ces mesures devaient être immédiatementet effectivement misesen

Œuvre.

Par une ordonnance du 16 avril 1993, le Président de la Cour avait

fixé au 15 octobre 1993 la date d'expiration du délai pour le dépôt du

mémoire de la Bosnie-Herzégovineet au 15 avril 1994 la date d'expiration

du délai pour le dépôt du contre-mémoirede la Yougoslavie. A la demande

de la Bosnie-Herzégovine,la date d'expiration du délai pour le dépôt du

mémoire a été reportée au 15 avril 1994, par une ordonnance du

Vice-Président en date du 7 octobre 1993; la date d'expiration du délai

pour le dépôt du contre-mémoirea été reportée, par la même ordonnance,

au 15 avril 1995. Le mémoire de la Bosnie-Herzégovinea été déposé dans

le délai ainsi prorogé. A la demande de l'agent de la Yougoslavie, la

date d'expiration du délai pour le dépôt du contre-mémoirea été reportée

au 30 juin 1995, par une ordonnance du Président endate du 21 mars 1995.

Dans le délai ainsi prorogé, la Yougoslavie a déposé certaines

exceptions préliminaires, ainsi que l'y autorise le paragraphe 1 de

l'article 79 du Règlement de la Cour. Les deux premières exceptions

présentées par le Gouvernement yougoslave portentsur la recevabilité de

la requête et les cinq dernières sur la compétence de la Cour pour

connaître de l'affaire. La procédure à suivre après le dépôt

d'exceptions préliminaires est régie par le paragraphe 3 de l'article 79

du Règlement; conformément à cette disposition, dès réception par le

Greffe de l'acte introductif de l'exception, la procédure sur le fond a

été suspendue et une procédure particulière devaitêtre organisée pour

permettre à la Cour d'examiner ces exceptions. Par une ordonnance en

date du 14 juillet 1995, le Président de la Cour a fixé au -9-

14 novembre 1995 la date d'expirationdu délai dans lequel la

Bosnie-Herzégovine pourrait présenterun exposé écrit contenant ses

observationset conclusions sur les exceptions préliminaires soulevées

par la Yougoslavie. Darisle délai ainsi fixé, la Bosnie-Herzégcvinea

déposé un tel exposé, au terme duquel elle prie la Cour :

«- de rejeter et écarter les exceptions préliminairesde la

Yougoslavie (Serbieet Monténégro) ; et

- de dire et juger :

i) que la Cour a compétence à l'égard des conclusions
présentées dans le mémoire de la Bosnie-Herzégovine;et

ii) que ces conclusionssont recevables».

Conformément auparagraphe 4 de l'article 79 du Règlement, il

appartient maintenant à la Cour d'entendre les Parties sur les questions

afférentes à sa compétence et à la recevabilitéde la requête. Je note

la présence à l'audience des agents des deux Parties. Aux fins de la

procédure orale sur les exceptionspréliminaires, il reviendra à l'agent

de la Yougoslavie de s'exprimer en premier.

Toutefois, avant de lui donner la parole, je dois annoncer que, après

s'être renseignée auprès des Parties, la Cour a décidé, conformément au

paragraphe 2 de l'article 53 de son Règlement, de rendre accessiblesau

public les pièces de procédureet documents y annexés déposés jusqulici

dans la présente instance.

Je donne maintenant la parole à M. Etinski, agent de la Yougoslavie

Mr. ETINSKI: Mr. President, distinguishedMembers of the Court, may

it please the Court, at the outset 1 would like to extend my

congratulationsto the InternationalCourt of Justice on the occasion of

its fiftieth anniversary. The nurnberof the cases before the Court has

increased considerably in the last decade. This fact provides telling - 10 -

evidence that the confidence of States in the Court has heightened and

that many States increasingly perceive it as the most reliable

institution availablefor dispute settlement. 1 am confident that the

Court will continue to contribute tothe strengthening of legality in

relations among States also in the future. It is my pleasure to be able

to state that a number of my countrymen participated in the work of the

Court. Messrs. Jovanovicand Novakovic were Deputy-Judges in the

Permanent Court of InternationalJustice and Mr. Zoricic served as a

judge to the International Courtof Justice.

1 should like also to congratulate the Members of the Court elected

after my appearance before theCourt in August 1993.

1 take this opportunity to reiterate ourrequest that the name of my

country be used properly. The Security Council resolutions£rom

November 1995 onwards refer to "the Federal Republicof Yugoslavia". The

appellation of the Federal Republicof Yugoslavia is also used in the

General Framework Agreement for Peacein Bosnia and Herzegovina, signed

in Paris on 14 December 1995. Accordingly, 1 see no reason whatsoever

why the Court shoulddepart from this practice. This rneansthat the

bracketed addition of "Serbia and Montenegro" should be left out. In any

case, 1 reserve the position of my country on this question. Mr.

President, the Federal Republic of Yugoslavia upholdsthe Preliminary

Objections submitted tothe Court in writing in June 1995. Nevertheless

some changes are necessary. The Court willbe aware, after the

successful conclusionof the Proximity Peace Talksin Wright-Patterson

Air Force Base in Dayton, Ohio, the General Framework Agreement for Peace

in Bosnia and Herzegovina was signed in Paris on 14 December 1995.

Eleven Annexes have been added to this Agreement, dealing with various

issues. The new Constitution of Bosnia and Herzegovina is contained in - Il -

Annex 4. According to Article 1 of this Constitution,Bosnia and

Herzegovina consistsof two Entities, the Republic ofSrpska and the

Federation of Bosnia and Herzegovina. This Constitution also provides

for the protection ofhuman rights and fundamental freedoms. In

addition, the Republic of Bosnia and Herzegovina, the Federation of

Bosnia and Herzegovina and the Republic of Srpska also concludedthe

Agreement on Human Rights, contained in Annex 6. This Agreement provides

for special mechanismsfor the protection of human rights and fundamental

freedoms.

In accordancewith Article X of the General Framework Agreementthe

two Parties have recognized each other. These developments have made

redundant some of the arguments presented within ourfourth Preliminary

Objection and we desist from the fourth PreliminaryObjection. The

mutual recognition in Paris on 14 December 1995 has raised the question

of whether a multilateral agreement is applicable to Parties that do not

recognize each other.

By the conclusion of the General Framework Agreement for Peace in

Bosnia and Herzegovina in Paris on 14 December 1995, the legal situation

has changed substantially. The Republic of Srpska has become one of the

two constituent entities of Bosnia and Herzegovina. Electionsand the

constitutionof new central organs areexpected to take place in which

the Republic of Srpska will also be represented. Bearingthat in mind, we

proposed by our Note sentto the Court on 30 January 1996 that this oral

hearing be postponed until that time when the conditions would have been

created for both entities of Bosnia and Herzegovina to be legitimately

representedbefore the Courtfor, in the existingconditions the Agent of

the Applicant can only have the mandate which is both highly contingent

and, in constitutionalterms, problematical. - 12 -

Mr. President, in its statement the Applicant presented some

unfounded contentions relatedto the merits of the case, and not to the

PreliminaryObjections. We consider that these transgress the bounds of

procedural propriety and plead with the Court not to consider them.

Mr. MitiC will present Our objection to the effect that Bosnia and

Herzegovina has not obtained independent Statehoodin conformity with the

principle of equality and self-determinationof peoples and that,

therefore, it could not succeedto the Genocide Convention. It is a rule

of general international lawthat a notification of succession to

treaties of a predecessor State is reserved for newly independent States

that obtain their independencein conformity with the principle of equal

rights and self-determinationof peoples.

The Applicant contends that the Constitution of the Socialist Federal

Republic of Yugoslavia £rom 1974 provided for the right of the Yugoslav

Republics to self-determinationand secession. Furthermore,the

Applicant contends that the secession of Bosnia andHerzegovina was

carried out in accordance with the constitutionalprovisions.

Alternatively, the Applicant considers that at the time of thesecession

of Bosnia and Herzegovina the SocialistFederal Republic of Yugoslavia

ceased to exist, i.e. that its central organsno longer functioned. None

of these contentions is correct. The Constitutionof the Socialist

Federal Republic of Yugoslavia from 1974 provided for no right of the

Yugoslav Republics to self-determinationand secession. It is true that

the introductory principle refersto the right of peoples to self-

determination and secession, but as a right on the basis of which the

pre-World War II Yugoslavia was rearrangedafter World WarII. As a

matter of fact, proceeding £rom that right, the unitary pre-World War II

Yugoslavia was transformed intoa federation. In any case, according to - 13 -

the said constitutionalprinciple, the subjects of the right were the

peoples, not the Republics, of the Socialist FederalRepublic of

Yugoslavia. It is a matter of public knowledge that three peoples live

in Bosnia and Herzegovina.

Al1 the decisions relatedto the secession of Bosnia and Herzegovina

were adopted by the outvoting of the representativesof the Serbian

people. At that time there existeda constitutionalmechanism, aimed at

preventing thiscourse of events. 1990 Amendment LXX, paragraph 10, to

the Constitution of Bosnia and Herzegovina of 1974 provided for the

setting up of the Council on the Questions of the Realization of the

Equality of the Peoples and Nationalities of Bosnia and Herzegovina. At

the request of at least 20 MPs of the Assembly of Bosnia and Herzegovina,

each question relevantto the equality of the peoples and nationalities

of Bosnia andHerzegovina was to be considered by the said Council before

a final decision was adopted by the Assembly. Decisionsin the Council

were to be taken by agreement of an equal number of representativesof

each people. Besides, a proposa1 resulting fromsuch a decision in the

Council was to be decided by a two-third majority in the Assembly.

However, notwithstandingthe said Amendment, this Council wasnever

established. It is strange indeed that the Applicant should contend that

the acts of secession were carriedout in accordance with the

constitutional provisionsof Bosnia andHerzegovina. Al1 relevant acts

of secession had been carried out by the end of May 1992.

In this connection, the Applicant refersto the Opinions of the

Badinter Commission. In many respects, the Opinions of this Commission

are problematic, to Say the least, and certainly legally non-binding. We

reject many positions of this Commission, in particular, the one to the

effect that the Socialist Federal Republicof Yugoslavia ceased to exist. - 14 -

Yet, even according to the Opinions of this Commission, the Socialist

Federal Republic of Yugoslavia did exist at the time when the acts of the

secession of Bosnia and Herzegovina werebeing carried out. The federal

organs were still functioning, admittedly in a changed composition, but

these changes had been brought about by the recall of the representatives

of the secessionistRepublics. We maintain that the secession of Bosnia

and Herzegovina was not in conformity with the principle of equal rights

and self-determinationof peoples. It was not so for two reasons: it

violated the territorial integrityof the Socialist FederalRepublic of

Yugoslavia and it breached the rights of the Serbian people in Bosnia and

Herzegovina. Mr.MitiC will speak on this matter in greater detail.

Considering the limited time available to me, 1 submit to present in

very short terms only the basic elements of our Preliminary Objections

that the other members of our delegation will present more exhaustively.

Our objection as to the overstepping of the competence of

Mr. Alija IzetbegoviC to authorize the filing of the Application will be

presented by the co-agent Mr. LopiCiC. This objection of ours is quite

simple. Bosnia and Herzegovinahad, and still shares, a collective

Head of State - the Presidency. The decision on the filing of the

Application should have been taken DY the Presidency. However, the

decision was not taken by the Presidency, but by the President of the

Presidency. He was not authorizedto take that decision; he was only

authorized to signeda decision to this effect by the Presidency. 1

maintain that this is not a technical problern,but a question of

substance. Mr. LopiEiE will speak on this rnatterin greater detail.

Professor Suy will present thearguments related to succession, aimed

at proving that the Genocide Conventionwas not operative between the

Parties in dispute, i.e. that it was not applicable to the Parties in - 15 -

dispute from 8 March 1992 even if the Court was to establish that Bosnia

and Herzegovina succeeded to the Genocide Convention. Professor Suy will

give an overview of the currentpractice and new opinions which

corroborateOur position that the rule of automatic successionas an

internationalcustom does not exist. Furthermore,Professor Suy will

explain the practice and theory accordingto which multilateraltreaties

are not applicable between Stateswhich do not recognize each other.

At the time referred to in the Application a civil war was being

fought in Bosnia and Herzegovina. The parties to the civil war were the

Muslim forces under the command of Mr. Alija IzetbegoviC, the armed

forces of the Republic of Srpska and the armed forces of the Croatian

Herceg-Bosna. Besides, the Muslim forcesunder the command of

Mr. Fikret AbdiC also took part in this civilstrife, fighting the Muslim

forces under the command of Mr. Alija Izetbegovic. The Federal Republic

of Yugoslavia tookno part in this civil war and did not have territorial

jurisdiction in Bosnia and Herzegovina. Bearingthis in mind, we can

conclude that there do not exist the necessary conditionsfor the

emergence of a dispute between the two Parties within the terms of

Article IX of the Genocide Convention. The arguments on these issues

will be presented by Mr. Brownlie.

And finally, 1 myself will address the question as to when the

Genocide Conventioncould be applicable betweenthe Parties if the Court

were to establish that Bosnia and Herzegovina succeeded to the Genocide

Convention and will then present the final submissions.

Mr. President,

1 now kindly cal1 on you to give the floor to Mr. Mitic

Thank you, Mr. President - 16 -

Mr. PRESIDENT: Thank you very much Your Excellency for your

introductory statement. i now give the floor to Mr. Miodrag Mitie.

Mr. MITIC: Thank you Mr. President. Mr. President, distinguished

Mernbersof the Court, may it please the Court. Allow me, Mr. President,

to proceed to thethird preliminary objection of the Federal Republic of

Yugoslavia. Without prejudice to Our contention that the entry of

multilateral treaties by notification of succession is reserved

exclusively for newly independent States born in the processof

decolonization, in Our third preliminary objection we maintain that the

Applicant could not succeed to the Genocide Convention because the

acquisition of its independent statehoodhad not been in conformity with

the principle of equal rights and self-determinationof peoples. The

Applicant replies

- that the right to secession was provided for by the Constitution of the

Socialist Federal Republicof Yugoslavia £rom 1974;

- that the secession was done in accordance witn the constitutional

regulations;

- i.e., that at the time of the secession of Bosnia and Herzegovina the

Socialist Federal Republicof Yugoslavia ceased to exist and that

Bosnia and Herzegovina had no other choicebut to declare independence.

None of these claims is accurate. Our third objection consists ofthe

following elements:

(1) there exists a rule of customary international law accordingto which

a new State cannot succeed to international treaties if the

establishment of its independent statehood was not in conformity with

the principle of equal rights and self-determinationof peoples; - 17 -

(2) the secession of Bosnia and Herzegovina was not in conformity with

the principle of equal rights and self-determinationof peoples;

(3) the denial of the rights of the Serbian people up until the signing

of the Generai Framework Agreement for Peace in Bosnia and

Herzegovina and the non-recognitionof the Republic of Srpska as one

of the entities of Bosnia and Herzegovina was not in conformity with

the principle of equal rights and self-determinationof peoples;

(4) the prernaturerecognition of Bosnia and Herzegovina was an act of

interferencein the interna1 affairs of the Socialist Federal

Republic of Yugoslavia, which was not inconformity with the

principle of equal rights and self-determinationof peoples; and

(5) therefore, the Republic of Bosnia and Herzegovina could notsucceed

to the Convention on the Preventionand Punishment of the Crimeof

Genocide

1. There exists the customary rule which makes the succession of a

new State to international treatiee conditional on the request that the
new State has achieved its independence in conformity with the principle
of equal rights and self-determination of peoples.

This international customevolved in the practice of decolonization

concerning thesuccession of States to international treaties. Al1 new

States that were born in the process of decolonizationbased their

independenceprecisely on the consistentapplication of the principle of

equal rights and self-determinationof peoples. And the practice of

succession constitutesone form of the realization of this principle

This customary rule was reflected in Article 6 of the Vienna Convention

on Succession of States in respect of Treaties which reads:

"The present Convention applies onlyto the effects of
succession of States occurring in conformity with international
law and, in particular, the principles of international law

embodied in the Charter of the United Nations." Let me quote here the words of Mr. Bedjaoui, speaking as a Mernberof

the InternationalLaw Commission:

"Article 6 merely stipulatesthat the draft applied only to
lawful succession, to the exclusion of any form of unlawful
succession. There was, therefore, no question of possible rights
and obligations of successor States whichhad effecteà a

territorial change to its own advantage in breach of
international law and, more especially, of the United Nations
Charter. The irregularityof the acquisition of a territory
would be in no way effaced if the successor State applied the

provisions of the draft. Hence it was not a matter of denying
rights or obligations to such a State, but of treating it as a
non-successor State." (YILC, 1974, Vol. 1, p. 79, para. 40.)

The Applicant does not deny the existence of this rule. On the

contrary, from paragraph 3.61 of the Statement (p. 79) it is clear that

the Applicant is agreed to the existence of this rule.

2. The secession of Bosnia and Herzegovina wae not in conformity with
the principle of equal rights and self-determination of peoples. The
Bosnia and Herzegovina lacked the capacity for self-determination.

This contention of ours contains four elernents:

2.1. The right to unilateral and violent secessiondid not exist in

the interna1 law of the Socialist Federal Republicof Yugoslavia;

2.2. The decision on secession was not taken in accordance with the

constitutional law in force at that time in Bosnia andHerzegovina:

2.3. The Socialist Federal Republic of Yugoslavia existed as a

subject of international law and its central organs functionedat the

time of the secession of Bosnia and Herzegovina;

2.4. The right to secession is contrary to the territorial integrity

of States which is an essential elementof the principle of equal rights

and self-determinationof peoples 2.1. The right of unilateral and violent eecession did not exist in
the interna1 law of the Social Federal Republic of Yugoslavia.

The contentionof the Applicant presentedin the Staternent,

(p. 49, para. 3.2) that "under the Constitution of the Socialist Federal

Republic of Yugoslavia, the Republic of Herzegovina was entitled to opt

for independentstatehoodn is wrong. The Applicantbases this contention

on certain provisions of the Constitutionof the Socialist Federal

Republic of Yugoslavia frorn 1974, but it interprets these provisions of

that constitutionerroneously. To begin with, the Applicant quotes the

following basic principle of the Constitutionof the Socialist Federal

Republic of Yugoslavia frorn 1974:

"The nations of Yugoslavia, proceeding£rom the right of

every nation to self-determination,including theright to
secession, on the basis of their will freely expressed in the
comrnonstruggle of al1 nations and nationalitiesin the national
Liberation War and Socialist Revolution, and in conformity with
their historic aspirations, aware that further consolidationof

their brotherhood and unityis in the cornrnoi nnterest, united,
together with the nationalities withwhich they live, in a
federal republic of free and equal nations and nationalities and
founded a socialist federalcornmunityof working people, the

Socialist FederalRepublic of Yugoslavia."

In the same paragraph of the Staternentthe Applicant refers to the

division of authority between the Federation and federal units under the

1974 Constitution and concludes: "The Republics always retain the right

to self-determination, including,in express terrns,'the.rightto

sece~sion'.~ This conclusion is wrong. The 1974 Constitution does not

provide for the right of the Republics to self-determinationand to

secession, but for the right of a people to self-determination. This is

the essential difference which is of particular importance preciselyin

the case of Bosnia andHerzegovina whichwas constituted as a Republic of

three equal peoples: Serbs, Muslims and Croats. Besides, the said basic

principle of the 1974 Constitution refersto the right of peoples to - 20 -

self-determination,including the right to secession, as the legal basis

on which the pre-World War II Yugoslavia was reorganized during World War

Two into a socialist and federalState. Accordingly, proceeding from the

said right, the Yugoslav peoples opted forthe said interna1 system. The

whole provision is written in the past tense. 1 have to remark here that

the translationof the quoted constitutionalprinciple into English is

incorrect. The Applicant used the presentperfect tense (have . . .

united . . . founded) erroneously. The original textof the Constitution

uses the tense which indicates that the verbalnotion expressed by that

tense refers to the past.

Nowhere in the Constitutionof 1974 is it provided that any of the

Yugoslav nations or Republics has the rightto secession, and that it

may, whenever it decides so, secede frornYugoslavia. It is true that by

the constitutional changesof 1974, the Yugoslav Federation was very

decentralized. However, this does not mean that the Republics becarne

States in the sense of international law. The changes that were carried

out in 1974 were inspired by the socialistic ideas of the socialization

of the State and of self-managementand not by an intention to transform

federal units into States in the international legalsense.

In an atternptto prove that the federal units were States, in

page 50, paragraph 3.2, of the Statement, the Applicant invokes Article 3

of the Constitution of the Socialist Federal Republic of Yugoslavia and

States: "States based on the sovereigntyof the people."

The Applicant quoted said Article 3 of the 1974 Federal Constitution

very stintingly indeed.

The entire text of Article 3 of the Federal Constitution of 1974

reads : "The Socialist Republicsare States based on the

sovereigntyof the people and the power of, and self-management
by, the working class and al1 working people, and are socialist,
self-managingdemocratic communitiesof the working people and
citizens, and of nations and nationalities having equal rights."
(TheApplicant presented thisprovision in Annex 3.3 to its
Statement.)

Accordingly, the constitutional definitionof the federal units -

socialist Republics - was much more complex than what is claimed by the

Applicant. The federal units which werecalled socialist Republicsand

were definedas States and self-managingdemocratic communitiesof the

working classand al1 the working people andcitizens, nations and

nationalitieshad no international legal attributes of statehood, i.e.,

treaty capacity, international representation, membership in

internationalorganizationsand others. Only the Federationpossessed

these attributes. Consequently, it is not possible to conclude on the

basis of this decentralizationthat the federal units had the rightto a

unilateral and violentsecession

The Amendments to the Constitutionof the Socialist Republicof

Bosnia and Herzegovina of 1990, referred to by the Applicant in paragraph

3.7 of the statement brought no substantial changesin this sense,

either. According to Amendment LX,

vSocialistRepublic of Bosnia and Herzegovina is a
democratic sovereign State of equal citizens, peoples of Bosnia
and Herzegovina - Muslims, Serbs and Croats and the other
peoples and nationalitieswho live in the Republic." (The

Applicant presentedthis provision in Annex 2.5 to the
Statement .

The Socialist Republicof Bosnia and Herzegovina did not becomea

State in the sense of international law asa result of this Amendment and

it was not given the right to secession. It will be seen later on that

not even the Badinter Commission considered thaA tmendment LX to the

Constitution of the Socialist Republicof Bosnia and Herzegovina £rom - 22 -

1990 could provide a basis for the declaration of the independent

statehood of Bosnia and Herzegovina. The best evidence is ArnendmentLXIX

from 1990 according to which:

"Politicalorganizations and actions designed to violently
overthrow of the ConstitutionalSystem, violate the territorial
integrity and independence of the Socialist Federal Republic of

Yugoslavia andthe sovereignty and territorial integrity of the
Socialist Republic of Bosnia and Herzegovina violate al1 rights
guaranteed by this Constitution and shall be prohibited." (The
Applicant presented this provision in Annex 2.5 to its
Statement) .

With the support of foreign elements, the Party of Democratic Action

and the Croatian Democratic Community did preciselywhat was prohibited

by this Amendment.

2.2. The decisions on secession were not taken in accordance with the

constitutional law in force at the time in Bosnia and Herzegovina:

In page 53, paragraph 3.9, of the Statement of the Applicant it is

said: "This does, however, obviously not preclude political change

achieved in accordance with theconstitution, in particular in accordance

with the explicit right to self-determinationand secession." There

existed no right to secession. Clear evidence to that effect is provided

by Amendment LXIX. Besides, the relevant decisions related to secession

were not taken in accordance with the constitutional law in force at the

time .

The adoption of the decision to hold a referendum was a gross

violation of the Constitution of the Socialist Republic of Bosnia and

Herzegovina. 1990 Amendment LXX, paragraph 10, to the Constitutionof

the Republic of Bosnia and Herzegovina providedfor the setting up of the

Council on the Questions of the Realization of the Equality of the

Peoples and Nationalities of Bosnia and~erzegovina. In Annex 2.5 to its

Statement, the Applicant presentedthe text of Amendment LXX,

paragraph 10. However, only a part of the text was presented. The most important partsof the text have beenomitted. In Our Annexes to

PreliminaryObjections, on page 814, we have presented a photostat copy

of Official Gazette No. 21 of the Socialist Republicof Bosnia and

Herzegovina of 31 July 1990 in which Amendment LXX was published. The

full text of paragraph 10 of Amendment LXX reads:

"The Council on the Questions of the Realization of the
Equality of the Peoples and Nationalities of Bosnia and
Herzegovina shall be set up in the Assembly of the Socialist
Republic of Bosnia and Herzegovina. As members of the Council
shall be elected, an even number of MPs from the ranks of the

members of the peoples of Bosnia and Herzegovina -Muslims,
Serbs and Croats, a corresponding numberof MPs from the ranks
of the members of other peoples and nationalitiesand others
living in Bosnia and Herzegovina. The Council shall decide on
the basis of agreement between the members from the ranks of al1

peoples and nationalities. The composition, scope and marner of
work of the Council shall be regulated by the law to be brought
by a two-third rnajorityof the overall number of MPs in the
Assembly of the Socialist Republic of Bosnia and Herzegovina.

The Council shall consider in particular the questions
related to: the equality of language and script; organization
and activities of cultural institutionshaving special
importance for the expression and affirmation of national
characteristicsof individual peoples and nationalitiesand the

adoption of rules and regulations ensuring the realization of
the constitutional provisions which expressly establish the
principles of equality of peoples and nationalities.

The Council shallnecessarily consider the question of the
equality of peoples and nationalities at the initiative of MPs
in the Assembly of the Socialist Republicof Bosnia and
Herzegovina. If at least 20 MPs consider that the equality of
peoples and nationalities has been violated by the proposed

rules and regulations or any other act, the proposa1 to be
decided by the Assembly of the Socialist Republic of Bosnia and
Herzegovina shall be determined by the Council.

The Assembly of the Socialist Republic of Bosnia and

Herzegovina shalldecide on the questions of interest for the
realization of equality of the peoples and nationalities of
Bosnia and Herzegovina at the proposa1 of the Council in a
special procedure establishedby the Rules of Procedure of the

Assembly of the Socialist Republicof Bosnia and Herzegovina by
the two-third majority of the overall number of MPs."

This was the most importantconstitutional provision guaranteeing the

equality of the peoples and nationalities in Bosnia andHerzegovina.This rule expressed the core of the principle of equality and self-

determinationof peoples in Bosnia and Herzegovina. Accordingly, it was

provided that the questions concerningthe equality of peoples be decided

by agreementof an even nurnberof representativesof al1 three peoples.

Mr. Alija Izetbegovie rejected each and every attempt at reaching

agreement with the representativesof the Serbian people. This

constitutional principlewas grossly violated on the occasion of the

adoption of the decision on holding a referendum. Oslobodjenje

(Liberation)is a daily paper published in Sarajevo, Bosnia and

Herzegovina. This is how Oslobodjenje of 26 January 1992 reported the

adoption of the decision by the Assembly of the Socialist Republic of

Bosnia and Herzegovina on holding the referendum:

"The referendum of the citizens of Bosnia and Herzegovina

on the future statusof this Republic will be held on
29 February and 1 March 1992. The decision on referendum was
adopted, unanimously early yesterday morning, after seventeen
hours of discussion, by the Parliament of the Socialist Republic

of Bosnia and Herzegovina, but without thepresence of the MPs
of the Serbian DemocraticParty and the Serbian Renewal
Movement. Al1 the 130 present MPs voted: the MPs of the Party
of Democratic Action and the Croatian DemocraticCommunity, as
well as the MPs of the opposition bloc, except the Liberal

Party.

The decision on referendum in Bosnia and Herzegovina was
adopted at the extended session of the Parliament presidedby
the Vice-Presidentof the Parliament of Bosnia and Herzegovina,

Mr. Mariofil LjubiC. He was entrusted with this position at the
request of the Club of the MPs of the Party of Democratic Action
which al1 MPs present in theconference room supported by
voting. Before that, the President of the Parliament of the

Socialist Republicof Bosnia and Herzegovina, MomCilo KrajiSnik,
adjourned the session for the followingday after the last
interruption of the session he had presided over (statingthat,
according to the Rules of Procedures, the conditions for the
continuation of the work had not concurred).

This turnabout came about because of the failure of the
three ruling Parliamentary partiesto agree on the agenda
supplement, i.e., the introduction of the proposa1 of the

Presidency of the Socialist Republicof Bosnia and Herzegovina
to adopt at this session the decision on a referendum of
citizens. Many consultations were held because of which the session was frequently interruptedand each time when the

session was resumed it seemed that a solution was in sight.
Particularlyso in midxlighthours when theDeputy Prime Minister
of Bosnia and Herzegovina, Muhamed Eengie, proposed that 'first
a detailed plan of the regionalizationof the Republic be worked
out and that only then a referendum be organizedr, but within a

fixed period, to which the leader of the Serbian Democratic
Party, Radovan KaradZiE, also agreed who at one moment found
himself at the rostrum together with eengie.

'We have never been closer to an agreement than this time',

said KaradZiC to the applause of the MPs. The next interruption
brought about another turnabout. Vlado PandZie, Chairman of the
Club of the Representativesof the Croatian Democratic
Community,also said that he was glad that the agreement on a
referendum was about to be reached. Only whenRadovan KaradZiE

requested that theregionalization obligationbe defined in a
new constitution act (firstregionalization,and then
referendum),the President of the Party of Democratic Action,
Alija Izetbegovie,rejected any conditions regarding the

referendum and said: 'We stick to what we have already
proposed, and as far as discussion isconcerned we can accept
it'. Leaving the rostrum he criticized KrajiSnik for the way in
which he conducted the session.

At that moment it was obvious thatal1 hopes in a
successful outcomeof the ~arad~iE-een~i~agreement had failed.
Vojislav Maksimovie, Chairman of the Club of the MPs of the
Serbian Democratic Partysaid that any further discussionwas
purposeless and proposed, on behalf of al1 the MPs of the

Serbian Democratic Party, that the proposa1 to take a decision
on the referendum of the citizens be forwarded to the Council
for Inter-EthnicEquality. At this point this session of the
Parliament was concludedfor the MPs of the Serbian Dernocratic
Party who, together with President KrajiSnik, left the

conference room. It was exactly 3.30 a.m."

By refusing to respect the requestof the Serbian MPs to have the

said Council declare itself on the question of the referendum on

independence,the Assembly of Bosnia and Herzegovina grosslyviolated the

constitutionalprovisions contained in Arnendment LXX to the Constitution

of the Socialist Republic of Bosnia and Herzegovina.

2.3. The Socialist Federal Republic of Yugoslavia as a subject of
international law and its central organs functioned at the time of the

secession of Bosnia and Herzegovina.

In page 51, paragraph 3.5, of its Staternent,the Applicant goes on to "Even if the implementationof the right to independence

had been subjected to a requirement of agreement of Federal or
other bodies within the Constitutional systemof the Socialist
Federal Republic of Yugoslavia (which it was not), such a
requirement would have been irrelevantin this case. When the
Republic of Bosnia and Herzegovina activated itsright to full

independence,the organs of the former Socialist Federal
Republic of Yugoslavia were no longer functioning. As the
Badinter Commission confirmedin November 1991, the Socialist
Federal Republic of Yugoslavia was already at that stage in a
process of dissolution ... Soon after the referendum on

independenceof 29 February/l March 1992, the Arbitration
Commission statedthat this process had been concluded ... The
Republic of Bosnia and Herzegovina had thereforeno option but
to achieve its independence unilaterally, through the
application of its own constitutional procedures ..."

The quoted contention of the Applicant is not true at all. The first

illegal acts through which the secession of Bosnia and Herzegovina began,

were made on 14 October 1991when the Assembly of the Socialist Republic of

Bosnia and Herzegovina adoptedthe Platform on the Status of Bosnia-

Herzegovina in the Future Set-up of the Yugoslav Communityand the

Memorandum (Letterof Intent). This was followed by the decisions of the

Presidency and Government of the Socialist Republicof Bosnia and

Herzegovina to submit a request for independence.On its session of 24 and

25 January 1992, the Assembly of the Socialist Republicof Eosnia and

Herzegovina decided to organizea referendum of the citizens on

independence. Al1 those decisions were taken without theparticipation and

against the will of the representativesof Bosnian Serbs in.respective

fora. The referendum was held on 29 February and 1 March 1992. In April

and May 1992, armed formationsunder the control of the Muslim-Croat

authorities inBosnia and Herzegovina carriedout armed attacks on the

forces of the Yugoslav People's Army during their withdrawal £rom Bosnia

and Herzegovina. The Yugoslav Federationand its organs did exist de jure

and de facto throughout this period - 27 -

References to the Opinions of the Badinter Commission arewrong. It is

true that in the Commission's Opinion No. 1 of 29 November 1991 it is said

"that the Socialist Federal Republicof Yugoslavia is in the process of

dissolution".But in this same Opinion it is also said: "Although the

Socialist Federal Republic of Yugoslavia has until now retained its

internationalpersonality, ..." At the moment it communicated its first

Opinion, the Badinter Commission noted that at that time the Socialist

Federal Republicof Yugoslavia maintained its international personality.It

was only in its Opinion No. 8 of 4 July 1992 that the Badinter Commission

noted "thatthe process of dissolution of the Socialist Federal Republic of

Yugoslavia referredto in Opinion No. 1 of 29 November 1991 is now complete

and that the Socialist Federal Republicof Yugoslavia no longer exists". In

the opinion of the Badinter Commission, the Socialist FederalRepublic of

Yugoslavia existeduntil 4 July 1992, although in the process of

dissolution.Accordingly, even if the Badinter Commission Opinionshad been

correct and if they had stood the test of time, the Applicant cannot invoke

them to corroborate itscontention that the federal organs were no longer

functioningand that "the Republic of Bosnia and Herzegovina had therefore

no option but to achieve its independence unilaterally ..." The federal

organs were functioning during the entire period in which Bosnia and

Herzegovinawas taking unilateral secessionistacts. Admittedly, they were

functioning ina changed composition,but the change of its compositionwas

necessitated preciselyby the acts of the secessionistRepublics which

recalled theirrepresentativesfrom federal organs. The contentionof a

Republic which recalls its representatives£rom federal organs that these

federal organs arenot functioning and that thereforethe Federation no

longer exists is untenable indeed. The Socialist Federal Republicof

Yugoslavia did not cease to exist as a subject of internationallaw. - 28 -

Notwithstandingthe contention, the fact is that a large number of the

representativesof Bosnia and Herzegovina, Muslims and Croats included, did

remain in the federal organs.

The Opinions of theBadinter Commission were problematicaland in any

event not legally binding. Besides, an opinion that a State is in the

process of dissolution is not a legal but a political opinion. This opinion

therefore constitutesno legal qualificationof the existing state of

affairs but an act of interference in the interna1 affairs of the Socialist

Federal Republic of Yugoslavia. In fact, this Opinion encouraged the

separatist forcesin the Socialist FederalRepublic of Yugoslavia.

Besides, an instant legal rule was created only for this case according

to which the central organs had no right to use force to suppress

separatist forces. This rule was never used before or after. The

application of this rule to the Yugoslav Federation, as well as the

premature recognitionof the secessionist Republics, enabled the

secessionist forces to succeedin their underrakings.

2.4. The right to secession is contrary to the territorial integrity of
States which is an essential element of the principle of equal rights and

self-determination of peoples.

By an unilateral and violent secessionfrom the Yugoslav Federation,

Bosnia and Herzegovina grosslyviolated the territorial integrityand

sovereignty of Yugoslavia. There is no doubt that it was contrary to the

obligations emanating from the principle of equal rights and self-

determination of peoples. 1 quote the relevantprovision contained in the

Declaration on Principles of International Law concerning Friendly

Relations and Cooperation among Statesin Accordance with the Charter of

the United Nations, adopted by the General Assembiy on 24 October 1970,

which reads: "Nothing in the foregoing paragraphsshall be construed as

authorizing or encouraging any action whichwould dismember or
impair, totally or inpart, the territorial integrityor political
unity of sovereign and independentStates conducting themselves in
compliancewith the principleof equal rights and self-
determinationof peoples as described above and thus possessed of

a government representing the whole people belonging to the
territory withoutdistinction as to race, creed or colour."

The importanceof this provision was pointed out alsoby the World

Conference onHuman Rights, held in Vienna in 1993, which reiterated this

provision in paragraph 2 of the Vienna Declaration and Programme of Action.

(UN Doc. A/CONF.157/24,Part 1, 13 October 1993)

In her General Courseon Public International Law at the Hague Academy

of InternationalLaw, entitled "InternationalLaw and the Avoidance,

Containment and Resolution of Disputes", held in 1991, Judge Rosalyn

Higgins spoke very convincinglyon, inter alia, self-determinationbeyond

colonialism.On that occasion, she pointed out the importance of the

provision that we quoted. Analysing the practice, she notices that this

principle is complex and that some of its elements have a general

application. In that connection, she writes:

"This reality is a far cry £rom the position of certain
writers, who assume that self-determinationis only about

independence;that independence is achieved by the end of
colonialism;and that further independencecan only be achieved
through secession. Because they believe - correctly, in my opinion
- that there isno legal right of secession where there is

representative government - they conclude that there is no self-
determination permittedin these circumstances.Much of this
debate has centred around General Assembly resolution 2625
(XXV) . . ." (Recueil des Cours, Collected Coursesof the Hague
Academy of International Law (1991-V)Vol. 230, p. 162.)

On that occasion Judge Higginsquoted the citedparagraph of the

resolution.

With your permission, 1 shall invoke oneof the most comprehensive

studies on self-determinationof peoples: the monograph of Antonio Cassese called Self-Detemination of Peuples, A Legal Reappraisal, published in

1995. On page 269 of his book, Cassese says:

"As in the case of the twelve Soviet republics, under

internationallaw the six Yugoslav republicshad no right to
external self-determination.In addition, no such right was
proclaimed inthe Yugoslav constit~tion.~

Under external self-determination,the author, among others, means the

right to secession. On the following page theauthor notes the following:

"The achievement of independenceby Slovenia, Croatia,

Bosnia-Herzegovina,and Macedonia can therefore be seen as a
revolutionaryprocess that has taken place beyond the regulation
of the existing body of laws."

3. The denial of the right of the Serb people up until the signing of

the General Framework Agreement for Peace in Bosnia and Herzegovina and the
non-recognition of the Republic of Srpska as one of the entities of Bosnia
and Herzegovina was not in conformity with the principle of equal rights
and self-determination of peoples.

1 repeat here our conviction that the Opinions of the

Badinter Commission were groundless and that they were the political acts

misused as a basis for the interferencein the interna1 affairs of the

Socialist Federal Republicof Yugoslavia. However, even according to these

erroneous Opinions, Bosnia and Herzegovinadid not fulfil the conditions

for the accession to independence. Inits Opinion No. 4 of 11 January 1992,

the Badinter Commission consideredthe request of the Minister for Foreign

Affairs of the Socialist Republicof Bosnia and ~erzegovina by which

recognition of Bosnia and Herzegovina as a sovereign and independent State

was requested. In it the Badinter Commission notes:

"In the eyes of the Presidency and the Government of the SRBH

the legal basis for the application for recognition is Amendment
LX, added to the Constitutionon 31 July 1990. This states that
the Republic of Bosnia-Herzegovina is a 'sovereigndemocratic
State of equal citizens, comprising the peoples of Bosnia-

Herzegovina - Muslims, Serbs and Croats - and members of other
peoples and other nationalities living on its territoryv . This
statement is essentially the same as Article 1 of the 1974
Constitution and makesno significant changein the law. Outside the institutional frameworkof the SRBH, on
10 November 1991 the 'Serbianpeople of Bosnia-Herzegovina'voted
in a plebiscite for a 'cornmon Yugoslav State'. On 21 December 1991
an 'Assemblyof the Serbian people of Bosnia-Herzegovina'passed a

resolution calling for the formation of a 'SerbianRepublic of
Bosnia-Herzegovina'in a federal Yugoslav State if the Muslim and
Croat communitiesof Bosnia-Herzegovinadecided to 'change their
attitude towards Yugoslavia'. On 9 January 1992 this Assembly
proclaimed the independenceof a 'SerbianRepublic of Bosnia-

Herzegovina'.

4. In these circumstances the Arbitration Commissionis of
the opinion that the will of the people8 of Bosnia-Herzegovinato
constitute theSRBH as a sovereign and independentState cannot be

held to have been fully established.

This assessment could be reviewed if appropriate auarantees
were providedby the Republic applying for recognition,possibly

by means of a referendum of al1 the citizens of the SRBH without
distinction, carried out under internationalsupervision."

Accordingly, the Badinter Commissiondid not support theposition of

the Presidency and Government of the Socialist Republic of

Bosnia-Herzegovinathat the legal basis for the acquisition of independent

Statehood is to be found in Amendment LX to the Constitution of the SRBH.

It is obvious that the Badinter Commissionhad in mind the opposition

of the Serbian people in Bosnia and Herzegovina to its constitution as an

independent Stateoutside Yugoslavia and that it was an obstacle to make an

instantaneous recommendation forthe recognition of Bosnia and Herzegovina.

It therefore recommended thata referendum of al1 citizens of Bosnia and

Herzegovina be held which would express the will of the peoples of Bosnia

and Herzegovina. According to the official data of the Applicant only

63.4 per cent of the electorate participated in the referendum.

Considering thatone third of the population of Bosnia and Herzegovinawere

Serbs, we can conclude that the referendum was far below what has been

requested by the Badinter Commission.The Badinter Commissionmay not have

thought that literally al1 citizens should takepart in the referendum, but

it did request that al1 three peoples do so. This interpretationis based - 32 -

on two reasons. First, the Badinter Commission said that the "will of the

peoplea of Bosnia-Herzegovinato constitute the SRBH as a sovereign and

independent State canriotbe held to have been fully established". It used

the plural. Second, the Badinter Commission proposeda referendum of "al1

the citizens of the SRBH without distinction' as a sort of rernedyfor the

unestablishedwill of the peoples. The only thing that this could mean was

that the BadinterCommission expected that al1 three peoples take part in

the referendum. This did not happen. It is beyond dispute that al1 Serbs

or almost al1 Serbs in Bosnia and Herzegovina boycotted thereferendum.

Accordingly, such a referendum could not have been the basis for the change

of the position of the Badinter Commission expressed in its Opinion No. 4.

Mr. President,as we now have a scheduled coffeebreak, with your

permission 1 will stop delivering my statement and resume after the break.

Thank you, Mr. President.

The PRESIDENT: Thankyou, Mr. Mitie. The hearing is çuspended for a

break and the Sitting will resume at 11.30 a.m.

The Court adjourned from 11.15 a.m. to 11.30 a.m.

The PRESIDENT: Pleasebe seated. 1 give the floor to Mr. MitiC.

Mr. MITIC: Mr. President, distinguishedMembers of the Court, 1 want

to point out that the relevant decisionsof the Assembly, Government and

the Presidency of Bosnia and Herzegovina were taken by the outvoting of the

representativesof the Serbian people. For a very long time

Mr. Alija Izetbegovie showed no readiness for a reasonable compromise

solution. On several occasions he evenmade sure that no compromise be

reached between the Serbs and Muslims. As we said in paragraph 1.8.17 of - 33 -

the preliminary objections, on 22 December 1991, the leadership of the

Serbian DemocraticParty proposed a comprehensive democratic transformation

of Bosnia-Herzegovinainto a confederationof three ethnic communitieswith

three parliaments. During the talks held between the three parties the

Serbian DemocraticParty proposed that an integral Bosnia and Herzegovina

be preserved as part ofthe Yugoslav Federation. Reaiizing that the two

other parties were against this, the Serbian DemocraticParty was prepared

to respect the wish of Muslim and Croat representativesto "loosen" the

ties with Yugoslavia or to completely secede from it.

"For the sake of peace we are ready to accept Bosniaand

Herzegovina as a confederationwith three parliaments ofthe three
ethnic communities, functioning withoutany mutual disturbances.
This confederationwould also have some common functions, which
could make it possible for Bosnia and Herzegovina to be a link

between Croatia and Yugoslavia. Thus, three entities,
complementaryor at least indifferentto each other, would be
established in Bosnia and Herzegovina"

said Radovan KaradSie informing the Parliament of the Serbian people of

negotiations betweenthe three ethnic communities. Unfortunately, this

proposal of the leadership of the Serbian Democratic Partywas not

accepted

In paragraph 1.8.18 on page 45 of the Preliminary Objectionswe have

presented the draft agreement prepared in 1991 by Mr. Radovan KaradZiE,

President of the Serbian DemocraticCommunity, and Mr. Adil ZulfikarpaHiE,

President of the Muslim BosniacOrganization,on relations betweenthe

Serbian and Muslim peoples. The conclusionand realization of this

agreement were obstructedby Mr. Alija IzetbegoviC. It is clear that by

his statement at the session of the Assembly of the Socialist Republic of

Bosnia and Herzegovina on 25 January 1992 Mr. Alija Izetbegovie threw out

the agreement that was about to be reached between Mr. Radovan KaradZiC,

President of the Serbian DemocraticParty, and Mr. Muhamed kengi6, the - 34 -

representativeof the Party of Democratic Action towork out a detailed

plan of the regionalizationof the Republic firstand only then organize a

referendum. By refusing to make the referendum conditionalon the

regionalizationof the Republic, Mr. Alija Izetbegoviepushed Bosnia and

Herzegovina down the slippery slope of civil war. After al1 three sides -

Serbian, Muslim and Croat - accepted the Coutilheroplan for the

regionalizationof Bosnia and Herzegovina at thebeginning of 1992,

Mr. IzetbegoviC rejectedit. The European Comrnunityplan, presented by

Ambassador Coutilhero, representing the Community, was worked out before

the outbreak of the civil war in Bosnia and Herzegovina and was aimed at

forestalling the conflict. The plan provided for the creation of three

constituent units (Serbian,Muslim and Croat), whereby each one of them

would consist of a number of cantons. There should havebeen 14 cantons:

five Serbian, five Muslim and four Croat.

Mr. Alija IzetbegoviC chosewar to create a unitary and centralized

State, violating the legitimate requestsof the Serbian people in Bosnia

and Herzegovina. It was only after three yearsof a terrible war in Bosnia

and Herzegovina in whichal1 three peoples levied war against each other

that in Dayton, Ohio, on 21 November 1995, Mr. Alija IzetbegoviS accepted

the territorial divisionof Bosnia andHerzegovina into two entities: the

Republic of Srpska and the Federation of Bosnia and Herzegovina. Thereand

then he accepted that the central organs of Bosnia and Herzegovina should

have limited authorityand that the entities should have very important

competencies. He also agreed that each of the two entities could have

special parallel relations with neighbouring States. Why did

Mr. Alija IzetbegoviC hesitateso long to take this decision? There is no

doubt that he could have taken it much earlier: there were many

opportunities for such a decision. - 3 -

Why was Mr. Alija IzetbegoviC opposed for so long to each and every

regionalizationof Bosnia and Herzegovina? Did he really believe that

civil and multiethnic Society is incompatiblewith any regionalization or

similar constitutionaldevices despite the fact that there does exist a

number of civil andmultiethnic Statesin the world which have been

regionalized orfederalized precisely because a number of peoples live in

them?

4. The premature recognition of Bosnia and Herzegovina wae an act of
interference into the interna1 affairs of the Socialist Federal Republic of
Yugoslavia, which was not in conformity with the principle of equal rights

and self-determination of peoples.

Until the cessation of civil war in Bosnia and Herzegovina the

conditions for international recognitionof Bosnia and Herzegovina were not

fulfilled. The central organs of the Government of this Republic

controlled a very small part of the territory of Bosnia and Herzegovina:

part of Sarajevo, BihaC and part of central Bosnia. In fact four States

existed in the territory of the former Socialist Republicof Bosnia and

Herzegovina: the Republic of Srpska, the Republicof Bosnia and

Herzegovina, Herceg-Bosna and the Republic of Western Bosnia. Considering

that three States - the Republic of Srpska, Herceg-Bosnaand the Republic

of Western Bosnia - were continuouslyor sporadically in conflict with the

Republic of Bosnia and Herzegovina, it is possible to Say that up until the

Dayton Agreement,the Republic of Bosnia and Herzegovina enjoyed the

recognition of the internationalcommunity but that the majority of its

citizens, including Serbs, Croats and part of Muslims, led by Fikret AbdiC,

did not recognize it. It was only after the Agreement which was reached in

Dayton, Ohio, on 21 November 1995, which includedagreements on territorial

division and constitutionalarrangements, i.e., after its signing in Paris on 14 December 1995, that the conditions concurred forthe international

recognition of Bosnia and Herzegovina.

Many statesmen and prominent personalities publicly said that the

recognition of the Republic of Bosnia and Herzegovina had beenmade

prematurely. In paragraphs 1.12.7 to 1.12.14. of our Preliminary Objections

we pointed to the opinions of late President Mitterrand, United States

Secretary of State Christopher, Chairman of the Foreign Policy Committeeof

the Russian Parliament Ambartsumov, Lord Carrington, former Italian Foreign

Minister de Michelis, former French Foreign MinisterDumas and former

United States Secretaryof State Kissinger

The acts of the premature recognitionof the Republic of Bosnia and

Herzegovina were not in conformity with the provisions of the principle of

equal rights and self-determinationof peoples

Ending the presentation of the legal arguments related tothe third

Preliminary Objection, 1 would like to point out the following fact: The

Federal Republicof Yugoslavia objectedto the succession of the Republic

of Bosnia and Herzegovina tothe Convention on the Prevention and

Punishment of the Crime of Genocide. On page 89 of the Multilateral

Treaties deposited withthe Secretary-General,Status as at 31 December

1994, the following notice is registered under No. 3:

"On 15 June 1993, the Secretary-Generalreceived from the
Government of Yugoslavia the followingcommunication:

'Consideringthe fact thatthe replacement of sovereignty on
the part of the territory of the Socialist Federal Republicof
Yugoslavia previously comprisingthe Republic of Bosnia and

Herzegovina was carried out contrary to the rules of international
law, the Government of the Federal Republic of Yugoslavia herewith
States that it does not consider the so-called Republic of Bosnia
and Herzegovina a party to the (said convention), but does

consider that the so-called Republic of Bosnia and Herzegovina is
bound by the obligations to respectthe norms on preventing and
punishing the crime of genocide in accordance with general
international law irrespectiveof the Convention on the Prevention

and Punishment of the Crime of Genocide." - 37 -

The Federal Republic of Yugoslavia was not in the position to present

this objectionprior to the commencementof the dispute before the Court.

As it is known, the Note of the Secretary-Generalof the United Nations

notifying the parties to the Convention on the Prevention and Punishment of

the Crime of Genocide of the alleged successionof Bosnia and Herzegovina

to that Convention isdated 18 March 1993, and the Applicant submitted its

Application on 20 March 1993, two days after. Bosnia and Herzegovina did

not respond to this objection, which means that it accepted it.

Facts and Evidence Concerning theThird Preliminary Objections

The Applicant does not deny the fact that the Socialist Republicof

Bosnia and Herzegovina had been adequately representedin the organs of the

Federation in the period from World War Two until the moment it decided to

recall its representativesfrornthe organs of the Federation. The Applicant

itself pointed out the fact that the Socialist Republicof Bosnia and

Herzegovina had had very large competencies withinthe Yugoslav Federation.

The Applicant did not deny the fact that 1990 Amendment LXX, paragraph

10, to the Constitution.ofthe Republic of Bosnia and Herzegovina provided

for the setting up of the Council for the Questions of the Realization of

the Equality of the Peoples and Nationalitiesof Bosnia and Herzegovina

The Applicant does not deny the fact that the Council was never

established. In that connection it States two things.

In page 57, paragraph 3.16, of the Statement, the Applicant said:

"As has been confirmed by the Constitutional Courtof the
Republic of Bosnia and Herzegovina, the fact that the Council
never came into existence is of no relevance to the validity of

the decision of the constitutionalorgans of the Republic of
Bosnia and Herzegovina." - 38 -

This is telling and sufficient evidenceof the violation of the

principle of the equality and self-determinationof peoples. It was

precisely the Council for the Questions ofthe Realization of the Equality

of the Peoples and Nationalities of Bosnia and Herzegovina thatought to

have ensured the realization of the principle of equality and self-

determinationof peoples in Bosnia and Herzegovina. If the Constitutional

Court of Bosnia and Herzegovina said that the non-establishmentof this

Council was of no relevance for the decision of the Assembly of Bosnia and

Herzegovina on the question of the greatest importancefor the equality of

its three peoples, it means that Bosnia and Herzegovina had desisted£rom

respecting theprinciple of equal rights and self-determinationof peoples.

The contention of the Applicant, presented in paragraph 3.16 of the

Statement on page 57, according to which "a law on the establishment of

such a Council was never adopted due to opposition from membersof the

Serbian DemocraticParty in the Parliament" is absurd. The Applicant

provides no evidence to corroboratethis contention. When theDeclaration

on State Sovereignty and Indivisibility of theRepublic of Bosnia and

Herzegovina was considered on 26 February 1991, the MPs of the Serbian

Democratic Party requested that, prior to deciding on this proposa1 of the

Party of Democratic Action, the proposa1 be sent to the Council for the

Questions of the Realization of the Equality of the Peoples and

Nationalities of Bosnia and Herzegovina.However, Avdo Campara, General

Secretary of the Assembly of the Socialist Republic of Bosnia and

Herzegovina, replied that this Council hadnot been established despite the

existence of the constitutional basis for its establishment. Oslobodjenje

of Sarajevo reported it on 27 February 1991. This report has been submitted

to the Court. When the Memorandum on Sovereignty (The Letter of Intent),

proposed by the Party of Dernocratic Action, and the Platform on the - 39 -

Position of Bosnia and Herzegovina and the Future Set-Up of the Yugoslav

Comrnunity,proposed by the Presidency of the Socialist Republicof Bosnia

and Herzegovina,were considered at the session of the Assembly of the

Socialist Republic of Bosnia and Herzegovina on 14 October 1991, the MPs of

the Serbian DernocraticParty refused to decide on these documents, since

the proposals had not been considered in the Council for the Questionsof

the Realization of the Equality of the Peoples and Nationalities of Bosnia

and Herzegovina. It is absurd to aver that theMPs of the Serbian

Democratic Partywho requested the Council's involvernent on 27 February and

14 October 1991 and on 25 January 1992 were against the adoption of a law

on its establishment.May 1 note that even if they had been against it,

they would not have been ableto prevent the establishment ofthe Council

because of the Muslim-Croatmajority in the Assembly of Bosnia and

Herzegovina. 1 therefore reject the contention of the Applicant, contained

in paragraph 3.16 of the Staternent. In the same paragraph it is further

said: "As has been confirmed by the Constitutional Courtof the Republic

of Bosnia and Herzegovina, the fact that the Council never came into

existence is of no relevance to the validity of the decisions of the

constitutional organsof the Republic of Bosnia and Herzegovina." This is

very telling evidence of the poor state of legality in the Republic of

Bosnia and Herzegovina, as well as a clear indicationof the degree of

respect for the principle of equality of three nations by the organs of the

Applicant. The chief cause of the civil war in Bosnia and Herzegovina is

precisely the gross violations of the principle of equality of its three

peoples, i.e., a callous snub of all, even compromise, requests of the

representativesof the Serbian people.

The Applicant does not deny the parts of the "Islarnic Declarationw, the

programmatic work of Mr. Alija Izetbegovie, initially publishedclandestinelyin 1970, and then publicly in 1991. Consequently, the

following quotations from the "Islamic Declaration" (the full text of the

Declaration enclosedin the Annexes to the PreliminaryObjections, Part 1,

pp. 197, 202, 219, 220) have not been denied.

"The first and the most important of these conclusions is
definitely theone about the incompatibilityof Islam and
non-Islamic systems. There caribe no peace nor CO-existence
between the IIslamic faitho and 8non-Ielamic8 social and political
institutions. The failure of these institutionsto function and

the instabilityof regimes in Moslem countries, manifestedin
frequent changes and coups d'état are as a rule the consequence of
their a priori opposition to Islam as the fundamental and guiding
feeling of the people in these countries. Claimingfor itself the
right to regulate its own world, Islam clearly rules out any right

or possibility of action of any foreign ideologyon its turf.
Namely, there is no room for the lay principle and the state
should be an expression of the moral concepts of religion and
supportive of them." (The bold type isours.)

Therefore, we must be preachers first and then soldiers. Our
prime means are persona1 example, books and words. When will
force be added to these means?

The choice of the right moment is always a specific question
and depends on a number of factors. Nevertheless, there is a
general rule: Islamic order should and can approach the
overtaking of rule as soon as it is morally and numerically strong

enough not only to overthrow the non-Islamic rule but to develop
new Islamic rule. This differentiationis important, since
destruction and development do not require anequal level of
psychological and material readiness.

To act prematurely is equally as dangerousas to be late in
taking the required action.

The conquering of power on the basis of a favourable
concurrence of events, without sufficient moral and psychological

preparedness and without the required minimum of competent and
developed personnel impliesthe realizationof another coup and
not an Islamic revolution (and a coup is a continuation of
non-Islamic politics by other groups of people or on behalf of
other principles). To be late in the overtaking of power means to

deny oneself a very powerful means for achievingthe aims of
Islamic order and to give non-Islamic rule an opportunity to
strike a blow to the movementand disperse its activists. For the
latter case, recent history gives sufficient tragicand
illustrative examples." (The bold type is ours.) - 41 -

The Applicant does not deny the quotations from the "Islamic

Declaration", but points out that there are some tenets of the Declaration

that are not so extreme as the cited ones. One way or another, the

quotations are telltale proof that Mr. Alija IzetbegoviC is not the man to

be able to convince the Serbian people that he will stand for the rule of

law, democracy, non-discriminationand respect for multi-ethnic diversity.

The Applicant objects to Our use of some sources that it claims to be

unreliable. Thus, in paragraphs 48 to 50 of its Statement, the Applicant

criticizes the reports of Yossef Bodansky as unreliable. However, Bodansky

wrote of the participation of mujaheddins in the civil war in Bosnia and

Herzegovina and of the supply of arms and terrorist experts to Sarajevo by

Tehran. Does the Applicant continue to deny the veracity of these claims

in the face of these facts? Before the beginning of the Rome Conference on

17 February 1996, the media worldwide reported the arrest ofa group of

terrorists, foreign citizens, in the vicinity of Sarajevo who were said to

have had linkswith some of the mernbersof the Government in Sarajevo.

After the arriva1 of IFOR in Bosnia and Herzegovina, the United States

Government expressed its concern on several occasions over the presence of

mujaheddins in Bosnia and Herzegovina and demanded that they leave Bosnia

and Herzegovina.

The Applicant did not deny Our contentions related to the founding of

three national parties in the Socialist Republic of Bosnia and Herzegovina:

Serbian Democratic Party, Croatian Democratic Communityand the Muslim

Party of Democratic Action nor the fact that these parties had won the

greatest number of seats at the first multi-party elections in 1990.

The Applicant does not deny that the youth magazine Novi Vox (the

relevant parts of the magazine are enclosed in the Annexes to the

Preliminary Objections, Part II, p. 475) was published in Sarajevo which - 42 -

carried, inter alia, the following poem in its third edition for October

"Dear Mother, 1 am going to plant willows,

On which we will hang the Serbs.
Dear Mother, 1 am going to sharpen bayonets.
We will soon fil1 the pits again.
Dear Mother, preparesalad for us.
Invite our Croat brothers too.

When our banners unite
Al1 Serbs will end up in graves."

During World War Two the slogan "Serbs on Willows" was popular among

the Ustashe (WorldWar Two fascist armed formationsin the Independent

State of Croatia). The Applicant invokes the freedomof the press and

claims that the magazine did not reflect the views and policies of the

Bosnian Government and that the reporting of Novi Vox is irrelevant for the

Preliminary Objections (pp. 16 and 17, para. 38, of the Statement).

The Applicant does not deny most of our claims presented in connection

with the rebellion by members of the Party of Democratic Action and the

Croatian DemocraticCommunity in the Republican Government againstthe

Socialist Federal Republic of Yugoslavia and the pressures on the Serbian

people in Bosnia and Herzegovina on pages 47 to 72 of the Preliminary

Objections. It does not deny the setting up of Muslim armed formations

during 1991 and at the beginning of 1992, not does it deny the terrorist

attacks carried outby the Muslim armed formationson the forces of the

Yugoslav People's Army in Sarajevo and in other places in Bosnia and

Herzegovina in Aprii and May which we presented in Our Preliminary

Objections. Also, the Applicant does not deny thatintensive armed

conflicts took place between Muslim and Croatian forces during 1993 which

ended by the creation of the Muslim-Croat federation. It does not deny the

almost continuous conflictof the Muslim armed formations under the command

of Mr. Alija IzetbegoviE and the Muslim armed formations under the command - 43 -

of Mr. Fikret AbdiC which took place in Western Bosnia and ended in the

military defeat of the forces under Fikret Abdie.

The Applicant objects that we have devoted several pages of the

Preliminary Objectionsto historical facts. We did not do it for reasons

attributed to us by the Applicant. As a matter of fact, from the first

written submissionsof the Applicant one could get an impression that

Muslims and Catholics lived in idyllic conditions in Bosnia and Herzegovina

until 1991 when 1,300,000 Serbs came over £rom Serbia as agents and

surrogates of the government in Belgrade withan intention to cause

trouble. Accordingly, the Applicant compelled us to point to the fact that

the Serbs had lived in Bosnia and Herzegovina as a people also before 1991

and, let it be noted, for at least ten centuries. The Applicant also

compelled us to Say that the Serbs in Bosnia and Herzegovina hadnot

refused to remain ina unitary independent State because they had received

such an order from Belgrade, but because they still remembered very vividly

the genocide that the Serbian people had suffered at the hands of Croatian-

Muslim fascist forces inWorld War IIand because of the political changes

that began in 1990 which 1 pointed out in my statement. The facts that 1

have drawn your attention to were the root causes the Serbian people in

Bosnia and Herzegovina wereguided with to reject a unitary and centralized

Bosnia and Herzegovina outside Yugoslavia.

Mr. President, without prejudiceto Our contention that notification of

succession is reserved for newly independentStates, born in the process of

decolonization, 1 submit to make the following conclusion:

- The Applicant could not succeed to the Genocide Conventionbecause

the acquisition of its independentStatehood had not been in conformity

with the principle of equal rights and self-determinationof peoples.

Thank you, Mr. President. - 44 -

Mr. PRESIDENT: Thank you very much, Mr. MitiC and now 1 give the floor

to Mr. George LopiEie, Co-Agent.

Mr. LOPIEI~ M:r. President, distinguished Mernbersof the Court, may it

please the Court.

1 now proceed to present the second preliminary objection of the

Federal Republic of Yugoslavia. It is quite simple. Bosnia and

Herzegovina had a collective Head of State: the Presidency. The decision

to initiate proceedings before the International Court of Justice could

have been taken by the Presidency. The decision was not taken by the

Presidency, but by Mr. Alija 1zetbegoviC who was the President of the

Presidency. He was authorized to sign a decision of the Presidency, but

not to take it.

Quite a small number of facts are relevant for this objection and they

are easy to ascertain. Mr. IzetbegoviC signed the letter forwarded to the

Registrar of the International Court of Justice, dated 19 March 1993. By

this letter Mr. IzetbegoviC informs the Registrar that Bosnia and

Herzegovina has nominated its Agents. He writes in the letter that their

first act will be to initiate proceedings against Yugoslavia because of the

violation of the Convention on the Prevention and Punishment of the Crime

of Genocide. The letter was signed by Mr. Izetbegovie and under his name

is the name of his position the "President of the Republic of Bosnia and

Herzegovina". This letter is enclosed to the documents of the case. The

exact name of the position of Mr. Izetbegovif should have read "President

of the Presidency of the Republic of Bosnia and Herzegovina". Presumably,

Mr. IzetbegoviC wanted to be the President of the Republic, but he was not.

He was only the President of the Presidency of the Republic of Bosnia and

Herzegovina. Accordingly, Mr. IzetbegoviC was not the President of the - 45 -

Republic, but he behaved as though he was. We now arrive to the substance

of Our objection. According to the constitutional regulations of the

Applicant State, a decision to norninateagents and initiate proceedings

before the Court could have been taken by the Presidency of Bosnia and

Herzegovina. This decision could not have been taken by Mr. IzetbegoviC.

He could only sign such a decision. The decision to norninateagents and

initiate proceedings before the Court was not taken by the Presidency of

Bosnia and Herzegovina, but by the President of the Presidency, which was

outside the cornpetenceof Mr. IzetbegoviE.

The Statement of the Governrnentof Bosnia and Herzegovina on

prelirninaryobjections of 14 November 1995 (pp. 47-48, para. 2.20) reads:

"the Governrnentof Bosnia and Herzegovina wishes to reiterate
that in any case it is not for the Respondent, and for that
matter not even for the Court itself, to enter into an
examination of the constitutional technicalities of the law of a

sovereign Stateu.

The Applicant State reduces this problem to "constitutional

technicalitiesu. However, the usurpation of power by one man and his

taking of decisions outside his competence cannot certainly be qualified by

"constitutional technicalitiesu. One of the serious reasons because of

which the Serbian people in Bosnia and Herzegovina did not want to remain

in a unitary Bosnia and Herzegovina was exactly this behaviour of

Mr. Izetbegovie who took foreign policy decisions single-nandedly on behalf

of the Presidency of the Republic

After all, it was not only the Serbian people in Bosnia and

Herzegovina who had problems with the autocratic proclivities of

Mr. Izetbegovie. In February 1995 £ive of the seven rnembersof the

Presidency of Bosnia and Herzegovina issued a Staternentdenouncing the

attempt of Mr. IzetbegoviC to transform Bosnia-Herzegovina into a one-party

Islamic State. The signatories said that army units were exposed to - 46 -

ideological pressures and the abuse of religious feelingsby some of their

members. Theprotest was signed by Mr. Nijaz DurakoviC, a Muslim,

Mr. Stjepan KljujiE, a Croat, Mr. Ivo KomgiE, a Croat,

Mrs. Tatjana LjujiE-MijatoviCand Mr. Mirko ~ejanovif, Serbs. The other

two members of the Presidency were Mr. Alija IzetbegoviC and

Mr. Ejup Ganif, Muslims (RobertFox, "Islamic Indoctrinationof ArrnySplits

Bosnian Leadership",Daily Telegraph, 6 February 1995, Annex, p. 288)

On pages 40 to 48 of its Statement, the Applicant State avers that,

according to the constitutional regulations, the Presidency of Bosnia and

Herzegovina was competent to take such a decision and that the President of

the Presidencywas authorized to sign such a decision. 1 do not deny this.

1 simply state that the Presidency did not take such a decision and that it

was taken by the President of the Presidency, which is contrary to the

constitutional regulations. It was very simple for the Applicant State to

deny rnycontentionby forwarding a copy of the decision of the Presidency.

Had the Presidency taken the decision in dispute, it would have certainly

been registeredsomewhere. However, the Appiicant State did not submit any

evidence that the decision in dispute had indeed been taken by the

Presidency of the Republic. In page 46, paragraph 2.18, of the Statement

of the Applicant State, it is said:

"The decision to bring the present action in the
InternationalCourt of Justice was taken by the Presidency, in
the exercise of its powers under Article 222 of the Consolidated
Constitution . . ."

This assertion remainsunproved. 1 contend that the decision was not taken

by the Presidency. If the decision was indeed taken by the Presidency, 1

cal1 on the Applicant State to provide evidence to that effect. In the

same paragraph on page 47 of its Statement, the Applicant State goes on to "Accordingto Article 20 of the Operating Procedureof the
Presidency of 23 December 1991, the Presidency is represented by
its President,who, according to Article 54 signs al1 acts of the
Presidency inits name."

1 agree with this contention of the Applicant State. But now, the

Applicant State makes a wrong conclusion:

"The President was thus duly authorized to instruct thethen
Agent for theRepublic of Bosnia and Herzegovina to institute
proceedings. He did it in the name of the Presidency which he
represented . . ."

The President of the Presidency was not authorized "to instruct the

then Agent of the Republic of Bosnia and Herzegovina to institute

proceedings". Authorized to do so was the Presidency, while the President

of the Presidency was authorized to sign such a decision of the Presidency.

Accordingly, the President of the Presidency was not authorized to take

such a decision on behalf of the Presidency. Accordingly, it is to be

concluded that, in taking the decision to institute theproceedings,

Mr. IzetbegoviCgrossly exceeded his authority and that the Application is

therefore inadmissible.

In paragraph A.2.5 on page 93 of the Preliminary Objectionsof

June 1995 we said that

"Alija IzetbegoviCwas not appointed as President of the
Presidency in a legal manner. At the general and direct
elections held in the Socialist Republicof Bosnia and
Herzegovina in 1990, he won 879,266 votes, whereas Mr. Fikret
AbdiC won 1,045,539 votes. Having won more votes, Mr. AbdiC

should have becomethe President of the Presidency."

In paragraph 2.11 on page 44 of its Statement, the Applicant State

does not deny this fact and States instead:

"There is no constitutional requirement whichwould hold that
the individual who achievedthe highest number of votes in the
elections for membership in the Presidency must be appointed
President of the Presidency."

This is perhaps true, but is not politically logical. In any case, 1

believe that Mr. AbdiC regrets now very much that he ceded his position of - 48 -

At the time he did SO,
the Presidentof the Presidency to Mr. ~zetbegovié.

he was a member of the Party of Democratic Action whose leaderwas

It was probably on this account thathe ceded his
Mr. IzetbegoviC.

position to his party leader. However, soon after, he discovered the

Muslim fundamentalist intentionsof Mr. Izetbegovie and this was the cause

of their political split. At the first Congress of the Party of Democratic

Action on 1 December 1991, Mr. Abdie said that nobody in Bosnia and

Herzegovina had the right to do anything that would be to the detriment of

the Muslim people, but also to the detriment of any other people and

opposed the absolutist government of Mr. IzetbegoviC. The political

leanings of Mr. IzetbegoviEaccounted for the parting of ways between Mr.

AbdiE and Mr. IzetbegoviC. The political split between these two men

evolved into an armed conflict between the Muslims of Western Bosnia who

supported Mr. AbdiC and the armed forces under the comrnandof

Mr. IzetbegoviE. Out of this conflict emerged and existed for a time as an

independent State theRepublic of Western Bosnia. During 1995, the armed

forces under the command of Mr. IzetbegoviC defeated this independentunit

of their Muslim opponents. Dozens of thousands of people fled the area and

they have not returned home yet for fear of reprisals. Mr. AbdiE also

lives outside Bosnia and Herzegovina. The Government of Mr. IzetbegoviE

requested his extradition, accusing him of armed rebellion. The attitude

of the Government of Mr. IzetbegoviE towardsMr. Abdie is well illustrated

by a report carried recentlyby International HeraldTribune to the effect

that the Muslim Governmentof Bosnia and Herzegovina sent small commando

units to kill or capture renegade Muslim leader Fikret AbdiC, in exile in

Croatia. Four men and a wornen,some of them formerly employedby the

Bosnian police, were arrested in Croatia on 8 April 1996 (ChrisHedges,

"Bosnians Are Using Iran-TrainedHit Squads", International Herald Tribune, - 49 -

16 Aprii 1996, p. 1). Accordingly, there is no doubt in my mind that

Mr. Abdie now regrets his decision to cede his position to his party

leader. Had he not done that, the developments in Bosnia and Herzegovina

would probably have taken a different course.

Thank you, Mr. President.

The PRESIDENT: Thank you Your Excellency for your statement.

Maintenant, je me tourne vers M. Suy pour lui offrir un choix. Vous

disposons d'un peu de temps avant 13 heures, est-ce qu'il souhaite prendre

tout de suite la parole pour son exposé oral ou est-ce qu'il préfère le

faire cet après-midi?

M. SW : Je suis entre vos mains, M. le Président, donc je pourrais

donner maintenant l'introduction.

Le PRESIDENT : Parfait, je vous remercie et vous appelle à la barre.

M. SW : Monsieur le Président, Madame et Messieurs de la Cour, j'ai

l'honneur de présenter la partie de la plaidoirie de la République fédérale

de Yougoslavie portant sur les exceptions préliminaires ayant trait au

problème de la succession d'Etats en matière de traités. La République

fédérale de Yougoslavie estimeque la Bosnie-Herzégovine,au moment des

faits qui font l'objet de la présente affaire, n'était pas partie à la

convention sur la prévention et la répression du crime de génocide du

9 décembre 1948 dont elle invoque l'article IX comme fondement de la

compétence de votre Cour. A l'appui de cette thèse, la République fédérale

de Yougoslavie invoque trois raisons : primo, il n'y a pas eu de succession

automatique de la République de Bosnie-Herzégovinedans la convention sur

le génocide. Secundo, la convention sur le génocide n'est entrée en - 50 -

vigueur entre les Parties que lors des accords de Dayton de 1995 et ceci

pour une double raison : d'abord, la simple notificationde succession par

un ou plusieurs Etats successeurs ne lie pas 1'Etat prédécesseur dans ses

relations avec lrEtat ou les Etats successeurs. En l'occurrence,

llapplicabilitéde la convention entre les Parties n'a été établie que par

les accords de Dayton. Ensuite, estimant que la déclaration d'indépendance

de la République de osn nie-Herzégovin était contraire aux normes du droit

international, comme vientde vous l'expliquer M. MitiE, la République

fédérative de Yougoslavie n'a pas reconnu la Bosnie-Herzégovineavant les

accords de Dayton de 1995. La Bosnie-Herzégovinen'a pas n'a pas non plus

reconnu la République fédérale de Yougoslavie avant ces accords de Dayton.

La Bosnie-Herzégovinene peut donc pas invoquer la convention sur le

génocide dans ses relations avec la Yougoslavie en ce qui concerneles

faits antérieurs à la reconnaissancemutuelle des deux Parties au présent

litige. Et tertio, mais à titre tout à fait subsidiaire, la convention sur

le génocide a pu entrer en vigueur entre les Parties au plus tôt en

mars 1993. La notification de succession n'est qu'une notification

d'adhésion à laquelle s'appliquent les dispositions conventionnelles. En

tout état de cause, la convention sur le génocide ne pouvait entrer en

vigueur entre lesParties avant que ladéclaration de succession faite par

la Bosnie-Herzégovinene soit notifiée à la République fédérale de

Yougoslavie.

Mais avant de développer ces thèses, il nous semble indispensablede

procéder à une brève analyse de la genèse du droit international en matière

de génocide. Suite aux exactions commisespar les nazis avant et pendant

la deuxième guerre mondiale, tant en Allemagne que dans les territoires

occupés dont la Yougoslavie à cette époque, et qui consistaient notamment à

éliminer en masse des personnesen raison de leur appartenance à une race - 51 -

ou de leur convictionpolitique, les personnes responsables de cesactes

ont été condamnées pouravoir commis des crimes contre l'humanité. Le

Tribunal internationalmilitaire de Nuremberg a été mis en place par

l'accord de Londres du 8 août 1945 concernant la poursuite et les

châtiments des grands criminels deguerre. L'article 6 du statut du

Tribunal de Nuremberg définit trois types d'infractions internationales à

savoir les crimes contre la paix, les crimes de guerre et les crimes contre

l'humanité. Il est intéressant de noter que le Tribunal a insisté sur le

fait que ces crimes sont commis par des personnes et non pas par des

entités abstraites. Le respect du droit international humanitaire exige la

condamnationd'individus. Lors de sa première session, l'Assemblée

générale de l'Organisationdes Nations Unies a adopté deux résolutions dans

lesquelles elle affirmeet elle confirme les principes du droit

internationalreconnus par le statut du Tribunal de Nuremberg ainsi que par

les jugements de ce tribunal. Quelques annéesplus tard la Commission du

droit internationalde l'ONU adopte un texte intitulé «Principes de droit

international consacrés parle statut du Tribunal de Nuremberg et dans le

jugement de ce tribunal». Ce texte parle également du principe de la

responsabilité individuelle caril mentionne dans son principe no 1 «tout

auteur d'un acte qui constitue un crime de droit internationalest

responsable de ce chef et passible de châtiment». La convention sur la

prévention et la suppression du crime de génocide de 1948 a exactement la

même portée. Elle appartient à ce qu'il est convenu d'appeler le droit

pénal international. Les Etats parties à cette conventions'engagent à

prendre des mesures internesafin de prévenir et de réprimer les actes de

génocide tels que définis dans l'article III de la convention. Ces mesures

concernent une législation pénale nécessaireafin de mettre en Œuvre les

dispositions de la convention dans le droit interne, je le répète. La - 52 -

convention et les mesures de mise en Œuvre qu'elle prescrit visent des

individus. 11 y a donc deux raisons principalespour conclure que la

convention de 1948 concerne seulementles crimes de génocide commis par des

individus. En premier lieu, les dispositions matérielles de laconvention,

notamment les articles 1 à VII, ont trait à la prévention et la punition de

certains actes commis par des personnes. En deuxième lieu, les

articles XIV et XV concernant la durée, concernant la dénonciation et

concernant la terminaison de la convention excluent que celle-ci soit

considérée comme une convention reflétant des règlesde droit international

général. Et c'est ici qu'intervient la question de l'interprétationde

l'article IX de la convention. Relisons attentivementcet article. 11

prévoit que

«les différends entre les Parties Contractantes relatifs à
l'interprétation, l'applicationou l'exécution de la présente
convention y compris ceux relatifs à la responsabilitéd'un Etat

en matière de génocide ou de l'un quelconque des autres actes
énumérés à l'article III seront soumis à la Cour internationale
de Justice,.

Contrairement à ce que prétend la Bosnie-Herzégovine on ne peut nullement

en déduire que la convention serait applicableau génocide commis par un

Etat .

Il est primordial à notre avis que la convention utiliseles termes <y

compris» plutôt que «ainsi que». Ceci signifie que l'article IX en se

référant à la responsabilitéde lfEtat n'étend pas la compétence de la Cour

telle qu'elle ressort de la première partie de l'article IX

En se référant à la responsabilité de 1'Etat l'article IX ne fait que

préciser la portée des termes précédantles mots «y compris». Compte tenu

des articles 1 à VII, ces termes ont incontestablementtrait aux actes de

génocide commis par des individus. La responsabilité de 1'Etat telle

qu'elle est envisagée à l'article IX est donc cellerésultant des - 53 -

manquements de llEtat aux obligations explicitées dans lesarticles 1 à VI1

concernant le génocide commispar des individus. Il s'agit donc d'une

responsabilitépour omission, pour le fait de ne pas avoir réagi face à un

génocide commispar des individus.

C'est partant de cette constatation,Monsieur le Président, que je

tiens à aborder maintenant et peut-être ce sera pour cet après-midi, mais

je suis entre vos mains, l'examen des exceptions préliminaires dela

République fédéralede Yougoslavie relatives à la succession dlEtats.

Dans la suite de cet exposé j'ai trois grandes parties, et, avec votre

permission, Monsieur le Président, je voudrais arrêter iciparce que

autrement je devrais déchirer la première partie de mes arguments. Je suis

entre vos mains, je vous remercie.

Le PRESIDENT : Merci, M. le professeur. La séance est suspendue

jusqu'à cet apreç-midi à 15 heures où je vous donnerai laparole pour

poursuivre.

L'audience est levée à 12 h 37.

Document Long Title

Audience publique tenue le lundi 29 avril 1996, à 10 heures, au Palais de la Paix, sous la présidence de M. Bedjaoui, président

Links