Non-Corrigé
Uncorrected
CR 2008/12
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2008
Public sitting
held on Thursday 29 May 2008, at 10 a.m., at the Peace Palace,
President Higgins presiding,
in the case concerning Application of the Convention on the Prevention
and Punishment of the Crime of Genocide
(Croatia v. Serbia)
________________
VERBATIM RECORD
________________
ANNÉE 2008
Audience publique
tenue le jeudi 29 mai 2008, à 10 heures, au Palais de la Paix,
sous la présidence de Mme Higgins, président,
en l’affaire relative à l’Application de la convention pour la prévention
et la répression du crime de génocide
(Croatie c. Serbie)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presieitgins
Vice-Presi-nhtasawneh
Judges Ranjeva
Shi
Koroma
Parra-Aranguren
Buergenthal
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Judges ad hoc Vukas
Kreća
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
Al-K.vsce-prh,ident
RaMjev.
Shi
Koroma
Parra-Aranguren
Buergenthal
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Sjoteiskov,
Vukas .
Kre ća, juges ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of the Republic of Croatia is represented by:
H.E. Mr. Ivan Šimonović, Ambassador, Professor of Law at the University of Zagreb Law Faculty,
as Agent;
H.E. Ms Andreja Metelko-Zgombić, Ambassador, Head of International Law Service, Ministry of
Foreign Affairs and European Integration,
Ms Maja Seršić, Professor of Law at the University of Zagreb Law Faculty,
H.E. Mr. Frane Krnić, Ambassador of the Republic of Croatia to the Kingdom of the Netherlands,
Cso-Agents;
Mr. James Crawford, S.C., Whewell Professor of In ternational Law, University of Cambridge, and
Barrister, Matrix Chambers,
Mr.PhilippeSands, Q.C., Professor of Law, Univ ersity College London, and Barrister, Matrix
Chambers,
as Counsel and Advocates;
Mr. Mirjan Damaska, Sterling Professor of Law, Yale Law School,
Ms Anjolie Singh, Member of the Indian Bar,
as Counsel;
Mr. Ivan Salopek, Third Secretary of the Embassy of the Republic of Croatia in the Kingdom of the
Netherlands,
MsJanaŠpero, Ministry of Justice, Directorat e for Co-operation with International Criminal
Courts,
as Advisers.
The Government of the Republic of Serbia is represented by:
Mr. Tibor Varady, S.J.D. (Harvard), Professor of Law at the Central European University,
Budapest and Emory University, Atlanta,
as Agent;
Mr. Saša Obradović, First Counsellor of the Embassy of the Republic of Serbia in the Kingdom of
the Netherlands,
Cso-Agent; - 5 -
Le Gouvernement de la République de Croatie est représenté par :
S. Exc. M. Ivan Šimonović, ambassadeur, professeur de droit à la faculté de droit de l’Université de
Zagreb,
comme agent ;
S. Exc. Mme Andreja Metelko-Zgombi ć, ambassadeur, chef du service de droit international du
ministère des affaires étrangères et de l’intégration européenne,
Mme Maja Seršić, professeur de droit à la faculté de droit de l’Université de Zagreb,
S. Exc. M. Frane Krni ć, ambassadeur de la République de Croatie auprès du Royaume des
Pays-Bas,
comme coagents ;
M. James Crawford, S.C., professeur de droit international, titulaire de la chaire Whewell à
l’Université de Cambridge, avocat, Matrix Chambers,
M. Philippe Sands, Q.C., professeur de droit au Un iversity College de Londres, avocat, Matrix
Chambers,
comme conseils et avocats ;
M. Mirjan Damaska, professeur de droit, titulaire de la chaire Sterling, Yale Law School,
Mme Anjolie Singh, membre du barreau indien,
comme conseils ;
M. Ivan Salopek, troisième secrétaire à l’ambassade de Croatie aux Pays-Bas,
Mme Jana Špero, direction de la coopération avec la Cour pénale internationale au ministère de la
justice,
comme conseillers.
Le Gouvernement de la République de Serbie est représenté par :
M. Tibor Varady, S.J.D. (Harvard), professeur de droit à l’Université d’Europe centrale de
Budapest et à l’Université Emory d’Atlanta,
comme agent ;
M. Saša Obradović, premier conseiller à l’ambassade de la République de Serbie au Royaume des
Pays-Bas,
comme coagent ; - 6 -
Mr. Andreas Zimmermann, LL.M. (Harvard), Professor of Law at the University of Kiel, Directo
r
of the Walther-Schücking Institute,
Mr. Vladimir Djeri ć, LL.M. (Michigan), Attorney at Law, Mikijelj, Jankovi ć and Bogdanovi ć,
Belgrade, President of the International Law Association of Serbia,
as Counsel and Advocates;
H.E. Mr. Radoslav Stojanović, S.J.D., Ambassador of the Republic of Serbia to the Kingdom of the
Netherlands, Professor at the Belgrade University School of Law,
Ms Sanja Milinković, LL.M., Ambassador, Head of the International Legal Service of the Ministry
of Foreign Affairs of the Republic of Serbia,
Mr. Vladimir Cvetković, First Secretary of the Embassy of the Republic of Serbia in the Kingdom
of the Netherlands,
Ms Jelena Jolić, M.Sc. (London School of Economics and Political Science),
Mr. Igor Olujić, Attorney at Law, Belgrade,
Mr. Svetislav Rabrenović, LL.M. (Michigan),
Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Walther-Schücking Institute, University of Kiel,
Ms Dina Dobrković, LL.B.,
as Advisers. - 7 -
M. Andreas Zimmermann, LL.M. (Harvard), professeur de droit à l’Université de Kiel, directeur de
l’Institut Walther-Schücking,
M. Vladimir Djerić, LL.M. (Michigan), avocat, cabinet Mikijelj, Jankovi ć & Bogdanovi ć,
Belgrade, et président de l’association de droit international de la Serbie,
comme conseils et avocats ;
S. Exc. M. Radoslav Stojanović, S.J.D., ambassadeur de la République de Serbie auprès du
Royaume des Pays-Bas, professeur à la faculté de droit de l’Université de Belgrade,
Mme Sanja Milinković, LL.M., ambassadeur, chef du service juridique international du ministère
des affaires étrangères de la République de Serbie,
M. Vladimir Cvetković, premier secrétaire à l’ambassade de la République de Serbie au Royaume
des Pays-Bas,
Mme Jelena Jolić, M.Sc. (London School of Economics and Political Science),
M. Igor Olujić, avocat, Belgrade,
M. Svetislav Rabrenović, LL.M. (Michigan),
M. Christian J. Tams, LL.M., Ph.D. (Cambridge), Institut Walther-Schücking, Université de Kiel,
Mme Dina Dobrković, LL.B,
comme conseillers. - 8 -
The PRESIDENT: Please be seated. The sitting is now open. The Court meets today to
hear the second round of oral argument of Serbia in the case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia). At
the end of today’s sitting, Serbia will present its final submissions. Croatia will then present its
oral reply tomorrow at 10 a.m., followed by its final submissions at the end of the sitting, and each
Party has at its disposal a three-hour session.
I now give the floor to Professor Varady, the Agent of Serbia.
Mr. VARADY:
INTRODUCTION AND THE ISSUE OF ACCESS UNDER A RTICLE 35 (1)
A. Introduction
1. Madam President, distinguished Members of the Court, having considered the arguments
and allegations of the Applicant presented during the first round of oral arguments, we would like
to submit to your attention our responses. We trus t that the arguments presented by the Applicant
do not, and cannot refute our arguments showi ng that this honoured Court does not have
jurisdiction in this case. This is probably the reason why instead of proposing a convincing
foundation for jurisdiction, the Applicant has put repeated emphasis on its suggestion that given
1
“the special importance of the 1948 Convention”, it would be “deeply unattractive” , and somehow
inappropriate to contest jurisdiction in this case at all.
2. Already during the first day of its presentati ons, the Applicant stated that “Serbia’s real
2
target is the Court’s recent Judgment in the Bosnia case” . It was added that “it would be odd and
even bizarre” 3, or that it would be “very strange” 4 to decide differently on jurisdiction in this case
than it was decided in the Bosnia case. It was also stressed that accepting the arguments of Serbia
5
would yield “[u]ntold damage to the international rule of law and to the Court” .
1CR 2008/10, p. 29, paras. 5-6 and p. 37, para. 25 (Sands).
2
Ibid., pp. 27-28, para. 2 (Sands).
3
Ibid., p. 9, para. 8 (Simonovic).
4Ibid., p. 12, para. 20 (Simonovic).
5Ibid., p. 39, para. 30 (Sands). - 9 -
3. Madam President, this is the preliminary objections phase in a case in which genocide is
being alleged, and we do not think that it is inappropriate to submit to your attention our
conviction, and our arguments demonstrating that this honoured Court has no jurisdiction in this
case. Yes, it is a genocide case, which has a special gravity ⎯ but it is a genocide case for the
Respondent as well. It is a case which has a special gravity regarding both sides.
4. We do not think that it could do “untold damage” to the internati onal rule of law and to
this Court if we endeavour to embark on a scrutiny of the legal prerequisites for jurisdiction in this
case we are just arguing. Rules on jurisdiction are part of the rule of law. We do not see how a
justified respect towards the rule of law could preclude us from discussing whether there is a legal
basis for jurisdiction in this case.
5. Furthermore, our target is naturally not the “recent” (2007) Judgment in the Bosnia case,
or any judgment in the Bosnia case. The Bosnia case, which dealt with the gravest of the conflicts
in the former Yugoslavia, has ended. Our “target” is, of course, this present case, in which some
issues are related, but are not the same as in the Bosnia case, and in which the information which is
at the disposal of the Court is radically different from the information that was available to the
Court in 1996. Also, in the Bosnia case, some crimes committed were already qualified as
genocide by the ICTY, before this was considered and confirmed by this Court. In this case ⎯ in
which the ICTY did not even indict anyone for genocide allegedly committed in Croatia ⎯ this
most dramatic qualification, which was needed in order to claim jurisdiction, has not been
substantiated, and appears to be strained.
6. The Applicant has also put emphasis on the inter-linkage between the conflicts in Bosnia
and Croatia, focusing on conflicts such as the one in the Prijedor area. It cannot be denied ⎯ and
there is no reason to deny ⎯ that there is an inter-linkage between the conflict in Bosnia and the
conflict in Croatia, just as there is an inter-linka ge between all Yugoslav conflicts, the conflict in
Slovenia included. But the Yugoslav army and the alleged aspirations towards a greater Serbia are
certainly not the only link. In a number of ICTY judgments it has been established that the
Bosnian conflict involved “[t]he independent State of the Republic of Croatia and its government,
armed forces and representatives in an armed conf lict against Bosnian Muslims on the territory of - 10 -
6
the independent State of Bosnia and Herzegovina” . Let me also say that we fail to see how the
Croatian claim regarding jurisdiction for genocide in this case could be supported by a link with
specific conflicts along the Bosnian-Croatian border, such as the conflict in the Prijedor area and
other conflicts mentioned, with regard to which this Court has already established that they did not
reach the threshold of genocide.
7. Madam President, I would also like to address shortly some hints about the behaviour of
the Respondent in this case. Endeavouring to s uggest conclusions about the behaviour of the
Respondent, the Applicant is linking two dates: that of the Memorial, and that of our notification
of accession to the Genocide Convention. The innuendo is that, since it was submitted shortly after
the Memorial, the notification of succession was prompted by the Memorial 7. But it is really
obvious that it was not the Memorial of 1March2001 that put the Respondent on notice that
Croatia was suing for genocide. Everybody knows that this was already known in July 1999 when
the Croatian Application was submitted. The notification of accession to the Genocide Convention
was obviously not prompted by the Memorial. It took place after the consequential changes in
October 2000, and it was prompted by the letter of the Legal Counsel of 8December2000, in
which the Legal Counsel invited the FRY “[t]o undertake treaty actions, as appropriate, in relations
to the treaties concerned, if its intention was to assume the relevant legal rights and obligations as a
8
successor State” . The Genocide Convention was one of the “treaties concerned”. Let me also
say ⎯ although we do not see how th is could be consequential ⎯ that the Genocide Convention
was not the only convention to which the FRY acced ed after it was invited to undertake treaty
9
actions if its intention was to assume treaty rights and obligations .
6
ICTY, Prosecutor v. Rajic, IT—95-12-S, Trial Chamber Judgment of 8 May 206, para.66. The same
conclusion was reached by the Trial Chambers in the Blaskic and Kordic cases ( Prosecutor v. Blaskic, IT-95-14,
Judgment of 3 March 2000, para. 94 and Prosecutor v. Kordic, IT-95-14/2, Judgment of 26 Feb. 2001, paras. 108-109).
7
CR 2008/10, p. 37, para. 26 (Sands).
8Letter of the Legal Counsel of the Un ited Nations addressed to the Minister for Foreign Affairs of the Federal
Republic of Yugoslavia, dated 8 Dec. 2000 ⎯ judges’ folder, tab 5.
9Other Conventions include, e.g., the European Cultural Convention; European Convention on the Supervision of
Conditionally Sentenced or Conditiona lly Released Offenders; Conventi on on Elaboration of a European
Pharmacopoeia; European Conven tion on Information on Foreign Law ; European Convention on Spectator Violence
and Misbehaviour at Sports Events and in particular at Football Matches; Anti-Doping Convention; Customs
Convention on Temporary Importation of Packings; Customs Convention Concerning Welfare Material for Seafarers;
Customs Convention concerning facilities for the importation of goods for display or use at exhibitions, fairs, meetings or
similar events; Convention establis hing a Customs Co-operation Council and Annex; and the 1974 International
Convention on Simplification and Harmonization of Customs Procedures. - 11 -
8. Another point I would like to address along the same line is the issue of the alleged
inconsistent behaviour of the Respondent. It was pointed out that in the period between 1992
and 2000, the FRY “took no action” and did not contest in 1996 the proposition that it was bound
10
by the Genocide Convention , that it “acted as a party to treati es to which the former SFRY was a
party”, that it filed a counter-claim in the Bosnia case, that it filed applications against NATO
11
countries in 1999 . It was added that Croatia was “entitle d to rely on the position adopted by the
FRY”.
9. Madam President, it is a fact that be tween 1992 and 2000 the position of the FRY was
influenced by a political perception, which proved to be the wrong perception. It is also true that
reliance on this perception was stubborn, without heeding the position taken by the international
community. But it is equally true that the position of the FRY ⎯ which turned out to be wrong ⎯
was not a matter of tactical manoeuvring suited to positions in lawsuits. The FRY was sticking to
the perception of continuity, even when it was against its interests ⎯ as was the case in the
preliminary objections phase of the Bosnia case. It was sticking to its position in spite of the fact
that it disallowed the FRY to become a Member of the United Nations, of many other international
organizations, and to become a party to treaties.
10. It is also a fact that after hundreds of thousands of demonstrators brought about a change
of régime in October 2000, the FRY finally took note of the fact that the assertion of continuity was
not accepted. Accepting what it believed was th e reality, the new Government acted upon this
assumption. Consequences were drawn with consistency. Jurisdiction was challenged on the basis
of the new perception in the Bosnia case, as well as in this case, where the FRY is the Respondent.
But at the same time, the same percep tion was submitted to the Court in the Legality of Use of
Force cases, where the FRY was the Applicant, a nd our counter-claim was withdrawn in the
Bosnia case. In all instances, notwithstanding ou r role or position, we presented the same
perception, both before this Court and before other authorities.
11. It is true, of course, that the position a nd the arguments we consistently presented are not
the same as those which were presented by the form er Government of the FRY. But let me point
10
CR 2008/10, p. 20, para. 12 (Metelko-Zgombic).
1Ibid., p. 25, para. 37 (Metelko-Zgombic). - 12 -
out also that what we did was not a tactical manoeuvre, just as the change in October 2000 was not
a simple change of government. It was a funda mental change which prompted the country to
reconsider the basic premises on which it was functioning.
12. At the same time, the inconsistency be tween Croatia’s position before this Court and
outside this Court is glaring. Here, the difference between positions taken is not the result of some
consequential development. Different positions have been taken at the same time, suited to various
purposes. Croatia now says that it “was entitled to re ly on the position adopted by the FRY” when
it submitted its Application in 1999. But about a month before it submitted its Application, which
was based on the assumption that the Court was open to the FRY, Croatia emphatically objected on
27 May 1999 against the declaration made by the FRY under Article 36 (2) of the Statute, stressing
that the FRY “could not automatically continue the membership of the SFRY in the United
Nations”, hence it cannot be a party to the Statute. The letter added that the FRY “deliberately . . .
tries to create the erroneous assumption” that it is a party to the Statute 12.
13. Madam President, this is not reliance ⎯ and this is not consistency. Instead of relying
on “the position taken by the FRY”, Croatia used every opportunity ⎯ with the single exception of
this case ⎯ to deny and challenge “the position a dopted by the FRY”. Croatia supported
resolution 47/1, which denied the claim of the FRY for continuity. Since then, and until these days,
Croatia denied continuity before international organizations whic h were in a position to decide
about membership, including the United Nations General Assembly and Security Council. It
1Letter dated 27 May 1999 from the perm anent representatives of Bosnia and Herzegovina, Croatia, Slovenia
and the former Yugoslav Republic of Macedonia to the United Nations addr essed to the Secretary-General,
UN doc. A/53/992 (7 June 1999); judges’ folder, tab 4. - 13 -
13 14
argued against United Nations membership , and against treaty membership of the FRY . It also
argued and stressed that the FRY was not a party to the Statute 15.
14. Let me emphasize again that the differen ce in the Croatian position taken in this case,
compared with all instances outsi de this case, was not the resu lt of some fundamental political
changes or consequential new information. It was simply the result of the interests Croatia had in
this case, which are different from the interests Croatia had in all other instances in which the issue
emerged whether the FRY did or did not continue the membership in international organizations
and the treaty status of the former Yugoslavia. Croatia did not accept the assertion of continuity ⎯
and did not rely on it.
B. No access under Article 35 (1)
B.1 The FRY had no access to the Court when th e Application was submitted, because it was
not a party to the Statute
15. Madam President, let me confess that it is somewhat difficult to believe that after years
of the most emphatic rejection of any even indirect manifestation of continued membership of the
FRY in the United Nations, in international organi zations and in treaties, Croatia is now alleging
that the FRY was somehow a party to the Statute. Time and again, Croatia argued and emphasized
that the FRY was just one of the “five equa l successor States”. It wrote letters to the
Secretary-General stressing that the FRY was not a party to the Statute. After this position was
accepted by everyone, including the FRY, is Croatia really saying that the FRY was not one of the
13See, e.g., letter dated 16Feb.1994 from the perman ent representative of Croatia to the United Nations
addressed to the Secretary-General, UN doc. S/1994/198 (19 Feb. 1994).
14See, e.g., letter dated 24 May 1995 from the Chargé d’Affaires a.i. of the Permanent Mission of Croatia to the
United Nations Office at Geneva addressed to th e Chairman of the Commission on Human Rights,
UN doc. E/CN.4/196/134 (1996), joint letter of Bosnia and He rzegovina, Croatia, Macedonia and Slovenia forwarded to
the Commission on Human Rights by the Permanent Mission of Bo snia and Herzegovina to the United Nations Office at
Geneva in a Note Verbale dated 20 April 1998, UN doc. E/CN.4/1998/171; aide-mémoire from the Permanent Mission
of Croatia dated 23 Aug. 1993, UN doc. S/26349 (1993); Note Verbale dated 14 Jan. 1994 from the Permanent Mission
of the Republic of Croatia to the United Nations addre ssed to the Secretary-General, UNdoc.CERD/SP/51(1994);
Summary Record of the 18th Meeting of the States parties to the International Covenant on Civil and Political Rights on
16 March 1994, UN doc. CCPR/SP/SR.18 (1994); and Summary Record of the 19th Meeting of the States parties to the
International Covenant on Civil and Political Rights on 9 Dec. 1994, UN doc. CCPR/SP/SR.19 (1994).
15
See, e.g., the letter dated 27 May 1999 from the permanent re presentatives of Bosnia and Herzegovina, Croatia,
Slovenia, and the former Yugoslav of Macedonia to the United Nations addressed to the Secretary-General,
UN doc A/53/992 (7 June 1999). - 14 -
five equal successors? Does Croatia really mean that its efforts to object to the special status were
unsuccessful 16, as it says, after everyone accepted the position asserted by Croatia?
16. The Applicant leads us now back to th e 1992 letter from the Legal Counsel referring to
General Assembly resolution 47/1, stating: “[O]n the other hand, the resolution neither terminates
nor suspends Yugoslavia’s membership in the Organization” 17.
17. But in the meantime it has been clarified that the “Y ugoslavia”, whose membership was
neither terminated nor suspended, was not the FRY, but the former Yugoslavia. This was
definitely and emphatically stressed by Croatia. For example, in the letter dated 2August1995
from the Chargé d’Affaires ad interim of the Permanent Mission of Croatia to the United Nations
addressed to the Secretary-General, it was stres sed: “The designation of ‘Yugoslavia’ as a State
within the framework of the United Nations can only be interpreted by us as relating to the former
Socialist Federal Republic of Yugoslavia, a State that was a founding Member of the United
18
Nations . . .” Croatia not only understood, but also argued and stressed that the designation
“Yugoslavia” can only be interpreted as a reference to the former Yugoslavia.
18. The same understanding was broadly confirmed; for example, the 1998 Yearbook of the
United Nations published an official “Roster of the United Nations”. This roster included
“Yugoslavia”, and explained in clear and simple terms that this name “refers to the former Socialist
19
Federal Republic of Yugoslavia” . ProfessorSands now refers to the I.C.J. Yearbooks . In the
period between 1992 and 2000, these Yearbooks did list “Yugoslavia” as a Member, but adding the
critical qualification of original Member ⎯ which can only refer to the former Yugoslavia.
19. Had any doubt remained, this must have b een dispelled by the Secretary-General, who
explained in his letter dated 27 December 2001 to the President of the General Assembly:
“I have the honour to refer to General Assembly resolution55/12 of
1November 2001, in which the Assembly decided to admit the Federal Republic of
Yugoslavia to membership in the United Nations.
16
CR 2008/11, p. 22, para. 8 (Sands).
17Letter dated 29Sept.1992 from the Under-Secretary-Gene ral, the Legal Counsel, addressed to the permanent
representatives of Bosnia and Herzegovina and Croatia to the United Nations, UN doc. A/47/485 (30 Sept. 1992).
18Letter dated 7 Aug.1995 from the Chargé d’Affaires a. i. of the Permanent Mission of Croatia to the United
Nations addressed to the Secretary-General, UN doc. A/50/333-S/1995/659 (7 Aug. 1995).
19Yearbook of the United Nations 1998, p. 1420, footnote 9. - 15 -
This decision necessarily and automatica lly terminated the membership in the 20
Organization of the former Yugoslavia, the State admitted to membership in 1945.”
The designation “Yugoslavia” did not refer to the Respondent in this case.
20. Madam President, after hesitations and dilemmas, a clear and unequivocal position was
taken by all relevant international authorities ⎯ including this honoured Court. The FRY was not
a Member of the United Nations, and was not a part y to the Statute prior to 1November2000.
There is simply no reason or logic which could now take us back to the legal situation which was,
as you stated, “ambiguous and open to different assessme nts”. The FRY was not a party to the
Statute, and had no access to the Court in July 1999.
B.2 The Respondent had no access to the Court at the relevant time ⎯ and the Court was not
validly seised either
21. Madam President, Members of the Court, the fact that the Respondent was not a party to
the Statute when the Application was submitted does not only lead to the conclusion that the Court
was not open to the Respondent, it also means th at the Court was not validly seised, it did not
acquire compétence de la compétence.
22. In the Legality of Use of Force cases the Court held that the Applicant “could not have
properly seised the Court” (Legality of Use of Force (Serbia and Montenegro v. Belgium) ,
Preliminary Objections, Judgment, I.C.J. Reports 2004 , p.299, para.46) 21, because it was not a
party to the Statute, and did not have the right to appear before the Court. The Court did not
acquire competence to decide upon jurisdiction.
23. The situation in our case is the same. It is generally accepted that a valid seisin may be
effected by either a joint notification or unilatera lly. In our case, we are talking about unilateral
seisin. Croatia did have access to the Court at the relevant moment. But the conditions for
unilateral seisin in a given dispute are never independent from the other party to the dispute. The
qualifications of the other party simply cannot be disregarded. Otherwise, a State, party to the
20Letter dated 27 Dec.2001 from the Secretary-General addressed to the President of the General Assembly,
UN doc. A/56/767 (9 Jan. 2002); emphasis added.
21Exactly the same text canbe found in the other 2004 Legality of Use of Force Judgments as well: in
paragraph45 of the cases with France, Canada, Italy, Neterlands, Portugal, and in paragraph44 of the cases with
Germany and the United Kingdom. - 16 -
Statute, could also validly seise the Court with a case brought against a non-State entity. Or, the
Court could be seised against a State that is outside the scope of the judicial authority of the Court.
24. Professor Crawford argued that “there wa s a case duly filed by Croatia, so there was
seisin”22. In our case, we are talking about unilateral seisin. But unilateral seisin cannot be
reduced to addressing the Court by one party. This simple fact appears clearly from the Nottebohm
case (Nottebohm (Liechtenstein v. Guatemala), Preliminary Objection, Judgment, I.C.J. Reports
1953), where the issue was whether the Ar ticle36(2) declaration of Guatemala (the Respondent)
would allow a valid unilateral seisin, given the f act that it expired after the Application was
submitted. In this case, even the fact that both pa rties to the dispute were parties to the Statute was
not considered to be sufficient for a valid sei sin. The Court investigated whether other
preconditions on the side of the Respondent were met, and stated that: “There can be no doubt that
an Application filed after the expiry of this pe riod [the period of the validity of the Guatemala
declaration] would not have the effect of legally seising the Court.” ( Ibid., p. 121.) It was not
enough that the case was “duly filed” by the Ap plicant. Preconditions on the side of the
Respondent had to be met. The Nottebohm Judgment made it clear that the status of the
Respondent is relevant for seisin. It made it also clear that the relevant moment in time when the
preconditions for seisin need to be assessed, is the moment of the application.
25. Valid seisin means simply compétence de la compétence. But it would be a contradictio
in adiecto to speak of compétence de la compétence in a situation in which the Court has no
competence to assume jurisdiction. The Court cannot be validly seised, it cannot have compétence
de la compétence if one of the parties of the dispute is not a party to the Statute, if it is outside the
scope of the Court’s competence.
26. It is beyond doubt that a valid seisin has consequences with regard to both the Applicant
and to the Respondent ⎯ and this assumes that they are parties to the Statute, which is the anchor
of procedural effects. The existence of this assumption was made clear in the Maritime
Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain),
Jurisdiction and Admissibility case, where the Court stated: “Once the Court has been validly
22
CR 2008/11, p. 34, para. 8 (Crawford). - 17 -
seised, both Parties are bound by the procedural consequences which the Statute and the Rules
make applicable . . .” (Judgment, I.C.J. Reports 1995, pp. 23 and 24, para. 43.)
27. This is certainly true, but this clearly assumes that both parties are parties to the Statute,
and therefore can be parties in a given case brought before the Court. Otherwise, “the procedural
consequences which the Statute and the Rules make applicable” would not apply to them. It is
generally accepted, that seisin which yields compétence de la compétence, flows from the Statute.
But this also means that the State towards which competence is asserted ⎯ and possibly
established ⎯ has to be within the scope of th e Statute. The Court cannot have compétence de la
compétence if a party to the dispute is not a party to the Statute. This simple proposition was
accepted as a basic assumption in the Aerial Incident of 27 July 1955 case, where Bulgaria was the
Respondent and in which the Court stated: “[t]he Statute of the present Court could not lay any
obligations upon Bulgaria before its admi ssion to the United Nations...” ( Aerial Incident of
27 July 1955 (Israel v. Bulgaria), Judgment, I.C.J. Reports 1959, p. 143.)
28. Madam President, distinguished Members of the Court, sovereign States parties to the
Statute are under the obligation to respect compétence de la compétence of the Court with regard to
them, under the conditions set by the Statute. By the same token, the Court has no competence to
decide upon its competence if any of the States par ties to the dispute is outside the realm of the
judicial authority of the Court.
29. We have already demonstrated that th is simple and unavoidable conclusion received
ample authoritative support. One of the most clear manifestations of this support are the Legality
of Use of Force cases, in which the Court makes it crystal clear that access has a fundamental
character, that it is a precondition to judicial functioning, and hence to jurisdiction as well. It is
stated: “The Court can exercise its judicial func tion only in respect of those States which have
access to it under Article 35 of the Statute. And only those States which have access to the Court
can confer jurisdiction upon it.” (Legality of Use of Force (Serbia and Montenegro v. Belgium),
Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 299, para. 46.) 23
2Exactly the same text canbe found in the other 2004 Legality of Use of ForceJudgments as well: in
paragraph45 of the cases with France, Canada, Italy, Netherla nds, and Portugal; and in paragraph44 of the cases with
Germany and the United Kingdom. - 18 -
30. This is perfectly logical, since access is, indeed, both a precondition to a valid seisin and
a precondition to jurisdiction. This clear position cannot be interpreted otherwise but as a position
taken towards both the applicant and the respond ent. The Court cannot exercise its judicial
function towards parties who are not within the am bit of its judicial function, who do not have
access to the Court.
31. The same simple and clear proposition is also underlined by Rosenne. Starting from the
assumption that the capacity to be a party to contentious cases is reserved only to States, Rosenne
adds and stresses:
“This statehood has to be supplemente d by formal conditions establishing a
legal link of the State to the Statute of the Court . . . Only a State meeting one of these
formal conditions has access to the Cour t for any purpose and in any capacity
whatsoever. The Court cannot entertain a contentious case against a respondent State
that is not similarly qualified.” 24
32. Madam President, we cited this Court stating in the Legality of Use of Force cases that
“[t]he Court can exercise its judicial function only in respect of those States which have access to it
25
under Article 35 of the Statute” (Judgment, I.C.J. Reports 2004 , p.299, para. 46) . Thus, the
problem was a fundamental one, and exactly the same fundamental problem exists in our case as
well. The Court can exercise its judicial function ⎯ which also means that it can be properly
seised ⎯ only in a dispute between States both of which have access to it under Article 35 of the
Statute. In this case, one of the parties did not have access to the Court at the time when the
Application was submitted. There was no valid seisin in this case.
B.3 The “Mavrommatis principle” is not applicable in the circumstances of this case
33. Professor Crawford submitted in his pleadings yesterday, that the preconditions for
jurisdiction need not all exist at the time of the Application, assuming the Court was validly seised.
24Rosenne, S., The Law and the Practice of the International Court, 1920-2005, (2006), Martinus Nijhoff
publishers, Leiden, Boston, p. 588.
25Exactly the same text can be found in the other 2004 Legality of Use of Force Judgments as well: in
paragraph45 of the cases with France, Canada, Italy, Netherla nds, and Portugal; and in paragraph44 of the cases with
Germany and the United Kingdom. - 19 -
26
He referred to the Mavrommatis case, and to other cases , in which it was, indeed, held that one
should not penalize a procedural deficiency which ex isted at the time of the application, and which
can be easily remedied.
34. Let me say first, that the conclusion suggested by the Applicant is based on the
assumption that the Court was validly seised. This assumption simply does not exist in our case.
We have demonstrated that in our case the Court was not validly seised. But there is a further
difficulty with this proposition. Not every proce dural shortcoming can be disregarded in the light
of later developments. The shortcoming we are talking about ⎯ i.e., lack of access ⎯ is of such a
nature that it cannot be remedied in the light of later developments. We would like to support this
point by further arguments.
35. There is ample authority supporting the proposition that the time of the Application is the
critical date for seisin and for the jurisdictional title . As it was made clear by Fitzmaurice “[s]eisin
establishes the critical date for the efficacy of the jurisdictional title” 27. The very same idea was
also underlined by Shihata, who states: “[s]ei sin has a direct relationship with substantive
jurisdiction for it establishes the critical date for the efficacy of the jurisdictional title involved in
any given case” 28.
36. Madam President, Croatia argues that once the Court was validly seised by the
Applicant, it became possible to establish jurisdiction over the Respondent at a later moment after
the Respondent had gained access to the Court. This construction is without foundation within the
setting of our case. First of all, its starting assumption is wrong. One cannot say that in our case,
since the Court was validly seised at the time wh en the Application was submitted, other defects
may be later remedied. One cannot say this, because ⎯ as we just demonstrated ⎯ the Court was
not validly seised at the time when the Application was submitted.
26Mavrommatis Palestine Concessions, P.C.I.J., SeriesA, No. 2, 1924, Certain German Interest in Polish Upper
Silesia, P.C.I.J., SeriesA, No.6, 1925 , Military and Paramilita ry Activities in and against Nicaragua (Nicaraguv.
United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984 and Application of the
Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J.
Reports 1996.
27Fitzmaurice, G., “The Law and Procedure of the Inte rnational Court of Justic e, 1951-4: Questions of
Jurisdiction, Competence and Procedure”, BYBIL, Vol. 34, (1958), p. 18.
28Shihata, F.I., The Power of the International Court to Dete rmine its Own Jurisdiction (Compétence de la
Compétence) , The Hague, Martinus Nijhoff, 1965, p. 88. - 20 -
37. Moreover, there are cases in which a procedural defect was surmounted considering later
developments, but this is by no means a general principle. We have already cited ample support
for the principle that the relevant date is, indeed, the date of the Application. Let me add just one
more supporting authority. In the Lockerbie case the Court stated: “The date, 3 March 1992, on
which Libya filed its Application, is in fact the only relevant date for determining the admissibility
of the Application.” (Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of
America), Preliminary Objections, Judgment, I. C. J. Reports 1998, p. 26, para. 44.)
38. Madam President, let me raise the obvi ous question: why were the cases cited by
Professor Crawford ⎯ the Mavrommatis case, the Silesia case, the Nicaragua case ⎯ decided
differently than the Legality of Use of Force cases? In all of these cases referred to by
Professor Crawford, in which the Court allowed remedy of an initial deficiency, the deficiency was
on the side of the applicant ⎯ or on the side of the applicant as well as in the Mavrommatis case.
39. Why are these cases then decided differently than the Legality of Use of Force cases?
Obviously not because they would have dealt w ith a deficiency on a different side. The
shortcoming was on the same side, both in the Legality of Use of Force cases, and in the cases cited
by the Applicant. There was clearly another reason justifying different treatment. The reason is
that in the Legality of Use of Force cases the problem was of a different nature, and the
shortcoming was much more fundamental than in the cases cited by the Applicant.
40. It was exactly this fundamental nature of the shortcoming which led the Court in the
Legality of Use of Force cases to conclude that the Court cannot exercise its judicial function if a
party ⎯ the applicant in those cases ⎯ had no access to the Court at the time when the application
was submitted. As it was phrased by the Court: “The question whether Serbia and Montenegro
was or was not a party to the Statute of the Court at the time of the institution of the present
proceedings is a fundamental one.” 29 ( Legality of Use of Force (Serbia and Montenegro v.
Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 293, para. 30.) We are facing
the very same fundamental question regarding the status of the very same State.
2Exactly the same text can be found in the other 2004 Legality of Use of ForceJudgments as well: in
paragraph29 of the cases with France, Canada, Italy, Netherla nds, and Portugal; and in paragraph28 of the cases with
Germany and the United Kingdom. - 21 -
41. Let me point out that if “easy remedy” were justified with regard to lack of access, this
approach should have prevailed in the Legality of Use of Force cases as well. If one could
disregard the special gravity of the shortcoming a nd its relevance regarding the judicial function of
the Court, quid non, one should have disregarded it in the Legality of Use of Force cases as well.
Serbia and Montenegro did become a party to the Statute at a moment after the Application was
submitted and before the Court took a position on jurisdiction.
42. But in the Legality of Use of Force cases the Court did not say that the deficiency may be
disregarded because it could be easily remedied by submitting a new application ⎯ like this was
said in the cases cited by Croatia. The Court did not say this, and the Court insisted that the
relevant moment is the moment of the institutio n of the proceedings. This position is clearly
justified by the fundamental nature of the shortcoming, and this is precisely how the Court justified
it. In our case, the shortcoming is exactly the same. Quod ab initio vitiosum est, tractu temporis
30
convalescere nequit .
43. Madam President, flexibility has its limits. In the Legality of Use of Force cases, the
Court referred with approval to cases in which the position was taken that “when its jurisdiction is
challenged on diverse grounds, it is free to base its decision on one or more grounds of its own
choosing” (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections,
Judgment, I.C.J. Reports 2004 , p.293, para. 46) 31, but added that this logic does not apply when
lack of access is one of the grounds on which jurisdiction is challenged. The Court pointed out that
the cases which allow flexibility in choosing a gr ound on which a decision on jurisdiction is based,
are all cases in which the parties “were without doubt parties to the Statute of the Court and the
Court was thus open to them under Articl e 35, paragraph 1, of the Statute” (ibid., p. 298, para. 46).
The Court stated that this flexibility does not appl y when lack of access is argued, because “it is
this issue of access to the Court which distinguishes the present case from all those referred to
above” (ibid., pp. 298-299, para. 46).
30Paulus D., 50, 17, 29 ⎯ Regula Catoniana.
31Exactly the same text can be found in the other 2004 Legality of Use of Force Judgments as well: in
paragraph45 of the cases with France, Ca nada, Italy, Netherlands, and Portugal; and in paragraph44 of the cases with
Germany and the United Kingdom. - 22 -
44. And this is, again, the issue which distinguishes our case from the cases cited by Croatia.
The question as to whether a State has access to the Court ⎯ and, hence whether it is within the
ambit of the judicial function of the Cour⎯ simply precedes other questions. This is logical,
because in exercising its judicial function, the Court may, of course, choose freely between
possible avenues of reasoning, it may also decide to allow some shortcomings to be remedied, but
this flexibility does not apply when the issuewhether the Court can or cannot exercise judicial
function at all.
45. Madam President, distinguished Members of the Court, whether we are contemplating
the issue of access within the setting of seisi n or otherwise, the result is the same ⎯ and the result
shows that there is no jurisdiction in this case. There is no jurisdiction because the Respondent had
no access to the Court, the Court was not validlseised, and hence it has not been endowed by
compétence de la compétence. Furthermore, lack of access is a shortcoming of such a fundamental
nature that it cannot be remedied “tractu temporis”.
Thank you very much and I would like to ask you now to give the floor to my colleague
Vladimir Djerić.
The PRESIDENT: Thank you, Professor Varady. I now give the floor to Mr. Djerić.
DMJr.RI Ć:
RESPONDENT ’S ACCESS UNDER A RTICLE 35 (2)OF THE S TATUTE
1. Madam President, Members of the Court, I will deal with the question of “Respondent’s
access under Article35, paragraph2, of the Statut e”. Yesterday, ProfessorCrawford argued that
the Respondent had access to the Court under Articl35, paragraph2, of the Statute, because the
Genocide Convention should be regarded as a “treat y in force” in the sense of this provision. I
have to say that I very much enjoyed his spir ited presentation and his ende avour to persuade the
Court to overrule its recent Judgments in the Legality of Use of Force cases, which held exactly the
opposite. After a careful consideration of his argments, I will try to show that, with all due
respect, the spell of yesterday’s presentation is gone. - 23 -
2. As a preliminary note, let me say th at, contrary to what the Applicant says 32, questions of
Article 35, paragraph 2, were argued in the preliminary objections in the Legality of Use of Force
cases, as is evident from the Judgments themselves (see, e.g., Legality of Use of Force (Serbia and
Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004 , pp.316-317,
paras. 96-97 (hereinafter: “Legality of Use of Force”)).
3. According to the Applicant, the phrase “treaties in force” is clear and means “treaties in
force . . . at the time when the other State comes before the Court” 33. Then, the Applicant says that
34
“[a] treaty cannot be relied on unless it is in force at the time it is relied on . . .” . But if this were
really so, then the words “in force” would be re dundant, why not just say “treaties” if a treaty
“cannot be relied on unless it is in force . . .”? Moreover, if the words “in force” should simply be
taken to mean now in force, why would Article 36, paragraph 5, of the Statute use the words “ still
in force” (emphasis added). It appears that the phrase “in force” may have different meanings in
different contexts, and not just the one suggested by the Applicant.
4. This is what the Court also noted in the Legality of Use of Force cases: “the words
‘treaties in force’, in their natural and ordinary meaning . . . do not indicate at what date the treaties
contemplated are to be in force, and thus they may lend themselves to different interpretations”
(Judgment, I.C.J. Reports 2004, p. 318, para. 101).
5. Article35, paragraph2, is an exception to the general rule stated in paragraph1 of this
Article that the Court shall be open to the States pa rties to the Statute. It is an exception because it
allows other States, not parties to the Statute, to come before the Court under the conditions laid
down by the Security Council. Within this excepti on, there is a further one, that this shall be
“subject to the special provisions contained in treati es in force”. If this phrase is to be interpreted
as the Applicant proposes, this would make the ru le in Article35, paragraph2, completely
redundant. A phrase in a legal text cannot however be interpreted so to make the rest of the
provision completely redundant. The result of the interpretation suggested by the Applicant would
be that States not parties to the Statute could co me before the Court simply by concluding treaties
32CR 2008/11, p. 39, para. 23 (Crawford).
33
Ibid., p. 40, para. 26 (Crawford).
34CR 2008/11, p. 41, para. 27 (Crawford). - 24 -
providing for its jurisdiction and thereby circum venting the conditions and procedures envisaged
by the Charter and the Statute. The rest of Article 35, paragraph 2, of the Statute would thus serve
no purpose; Article93, paragraph2, of the Charte r would be undermined, if one is to follow the
interpretation proposed by the Applicant.
6. The avoidance of the conditions of access e nvisaged by Article93, paragraph2, of the
Charter and Article 35, paragraph 2, of the Statute would mean that States not parties to the Statute
could not be required to comply with the decisions of the Court in cases in which they are parties;
neither the question of their non-compliance could be brought before the Security Council. This
would be contrary to a long and consistent pr actice of requiring States not members of the United
Nations that wish to come before the Court ⎯ either by becoming parties of the Statute or by
complying with conditions laid down by the Security Council ⎯ to accept all the obligations of
35
United Nations Members under Article 94 of the Charter .
7. Moreover, the interpretation proposed by the Applicant would deprive the political organs
of the United Nations of their role in deciding which States may come before the Court and
participate in the judicial system of the United Nations. This would be plainly against the Charter.
8. The Applicant says it could not locate any treaties that were in force on the date the
36
present Statute entered into force . But, the Court was aware of this when it rendered the
Judgments in the Legality of Use of Force cases (I.C.J. Reports 2004 , p.323, para.113). As the
Court said, “it was natural to reserve the position in relation to any relevant treaty provisions that
might then exist” (ibid., p. 319, para. 102). Moreover, the Statute could have entered into force at a
much later date, and, in the meantime, States parties could have decided to enter into treaties which
would have been in force and w ould have provided recourse to the Court. Indeed, this is the
situation that necessitated the inclusion of the treaties-in-force clause in the Statute of the
Permanent Court, which was adopted after the treat ies of peace had been concluded after the First
World War.
35See Security Council resolution9(1946), para.1; see Security Council resolution11(1946) and General
Assembly resolutio9(I) (Switzerland); Security Council resoluti7(1949) and General Assembly
resolution 363 (IV) (Liechtenstein); Security Council re solution 102 (1953) and General Assembly resolution 805 (VIII)
(Japan); Security Council resolution103(1953) and General Assembly resolution806(VIII) (San Marino); Security
Council resolution 600 (1987) and General Assembly resolution 42 (XXI) (Nauru).
36CR 2008/11, p. 40, para. 26 (Crawford). - 25 -
9. Madam President, the Applicant dedicated a lot of time yesterday to the history of
Article 35, paragraph 2, of the Statute of the Perm anent Court and of this Court. I am not going to
deal with it extensively ⎯ as the Court already did so in the Legality of Use of Force cases and
reached different conclusions from the Applicant. But, with all due respect, I have to note that the
Applicant’s analysis of the drafting history of Article35, paragraph2, of the Statute of the
Permanent Court avoids mentioning the main reas on for the inclusion of the “treaties-in-force”
clause. After the occasion on which the issue of access to the Court under the existing treaties of
peace was raised, to which the Applicant refers , a small drafting committee was entrusted with
drafting a new formula. It was the formula proposed by this committee that was eventually
adopted in the text of the Statute of the Permanent Court (this is the formula: “subject to special
37
provisions contained in treaties in force”) . MadamPresident, this formula was produced by the
drafting committee on the basis of the instructions that were unanimously formulated by the
Sub-committee of the Third Committee of the League of Nations, which inter alia stated
“[a]ccount shall be taken of Parties w ho may present themselves before the Court by virtue of the
Treaties of Peace” 38. Therefore, account was to be taken not of all “treaties in force” but of “the
Treaties of Peace”. This shows the intention behind this provision and this provides a meaningful
interpretation of its substance.
10. Further, the Applicant contends that “the crucial juncture” was when Mr.Fromageot
replied to Mr.Huber that “the expression ‘Treaties in force’ meant not only the Treaties in force
39
now but at any given moment in future” . However, this exchange took place during the
discussion of Articles33 and 34, as they were then numbered, that concerned jurisdiction ratione
materiae. Article 32, future Article 35, and its paragr aph 2, that is relevant here, were discussed
immediately afterwards. There is no evidence that what Mr. Fromageot said did concern the phrase
“treaties in force” in what would become Article 35, paragraph 2, of the Statute.
37
League of Nations, Permanent Court of International Ju stice, Documents concerning the actions taken by the
Council of the League of Nations under Article 14 of the Covenant and the adoption by the Assembly of the Statute of the
Permanent Court (hereinafter: “Documents”), p. 143.
38
Documents, p.141; emphasis added.
39CR 2008/11, p. 53, paras. 59 & 61, quoting Documents, p. 144. - 26 -
11. Madam President, further I have to note th at the Applicant’s meticulous analysis of
Article 35, paragraph 2, does not mention that me mbers of the Court also discussed this provision
at the time when the Court was revising its Rules in 1926, and this discussion is referred to in the
Legality of Use of Force Judgments (I.C.J. Reports 2004, p. 321).
12. In 1926, the Registrar took the position which the Applicant is advocating today, and,
according to the record, said that Article35 of the Statute “gave the Court unconditional
jurisdiction in the case of treaties in force”. Judge Anzilotti raised doubts about this interpretation.
40
The question was eventually postp oned for a subsequent meeting . And you may find the record
of this meeting at tab1 of your judges’ folders. When it was eventually discussed, both the
President of the Court, Judge Huber, and Judge Anzi lotti, disagreed with the view of the Registrar.
Judge Anzilotti explained that the “treaties in force” clause was included for the following reason:
“the peace treaties in certain cases imposed the Court’s jurisdiction on the central
States; in other cases these States had b een given the right of themselves instituting
proceedings before the Court. That bei ng so, to allow the Council to impose other
conditions would amount to modifying the p eace treaties, which could not be done.
41
The clause in question therefore had in mind the peace treaties.”
13. This view was supported by the President of the Court, Judge Huber. He said:
“In regard to the principle involved, he thought, having regard to the
semi-official commentaries on the Statute constituted by M.Hagerup’s report, that it
was quite possible to arrive at the wide interpretation of Article35 of the Statute
adopted by the Court in the Upper Silesi an case. But the essential thing was to
construe the Council Resolution in accordance w ith the actual terms of this Article 35
to which it referred, and the President thoug ht, like M.Anzilotti, that the exception
made in Article 35 c42ld only be intended to cover situations provided for by the
treaties of peace.”
14. Therefore, both President Huber and Judge Anzilotti were of the view that the “treaties in
force” clause concerned the peace treaties. Of cour se, there was some difficulty with the fact that
in the Upper Silesia case ( Certain German Interests in Polish Upper Silesia, Jurisdiction,
Judgment No. 6, 1925, P.C.I.J. Series A, No. 6), Germany appeared before the Court on the basis of
the 1922 Polish-German Convention on Upper Silesia, which entered into force after the entry into
force of the Statute of the Permanent Cour t. However, as Judge Anzilotti explained ⎯ and, again,
40Acts and Documents (1926), P.C.I.J., Series D., No. 2, Add., pp. 76-77.
41
Acts and Documents (1926), P.C.I.J., Series D., No. 2, Add., p. 105 (emphasis added).
42Ibid., p. 106. - 27 -
this explanation can be found at page 105 of the 1926 Acts and Documents , which are reproduced
at tab 1 of your folders:
“the question then related to a treaty ⎯ the Upper Silesian Convention ⎯ drawn up
under the auspices of the League of Nations which was to be considered as
supplementary to the Treaty of Versailles. It was therefore possible to include the
case in regard to which the Court had then had to decide in the general expression
‘subject to treaties in force’, whilst construing that expression as referring to the peace
treaties, and it was not necessary to read it as compelling the Court to adopt an
43
interpretation as wide as that which was proposed.”
15. At this point, let me say that this interpretation of Anzilotti was not only supported by
President Huber, it was not contested by any other judge. Madam President, we submit that this
discussion is of crucial importance ⎯ both Judge Anzilotti as, at the time,
CommendatoreAnzilotti, and President Huber, pa rticipated in the discussions in the Third
Committee and its Subcommittee during the drafting of Article35, paragraph2, of the Statute of
the Permanent Court. They were “present at the creation”, to use the phrase of Dean Acheson. So
was JudgeLoder, the former President, who dur ing the discussion in 1926 did not oppose their
view regarding the “treaties in force” clause. (Compare Acts and Documents (1926), P.C.I.J.,
Series D., No. 2, Add., p. 104 and Documents, p. 82.)
16. In conclusion, all the above clearly confirms the view reached by this Court:
“the legislative history of Article 35, para graph 2, of the Statute of the Permanent
Court demonstrates that it was intended as an exception to the pr inciple stated in
paragraph 1, in order to c over cases contemplated in agreements concluded in the
aftermath of the First World War before the Statute entered into force”.
17. Madam President, let me now turn to the pr eparatory work of the present Statute. It is
silent on the meaning of the phrase “treaties in fo rce” in Article35, paragraph2. The Applicant
contends that if the drafters of the present Statute wanted to restrict access under this provision,
they would have left it out 44. However, while the 1945 discussions are silent on the issue, I would
like to note that one of those present at the time wa s Judge Manley Hudson, who held the view that
Article35, paragraph2, should be strictly construed, and that the Upper Silesia case should not
45
serve as a general precedent .
43Add No. 2, p. 105.
44
CR 2008/11, p. 48, para. 50.
45Manley O. Hudson, The Permanent Court of International Justice 1920-1942, 1943, pp. 391-392. - 28 -
18. Since the drafters of the Statute accepted th e text of the old Article 35, paragraph 2, only
with small corrections of style, it is to be presumed that they also wished it to retain the meaning it
had in the Statute of the Permanent Court. The fact that possibly there were no treaties in force
providing for jurisdiction of the new Court at the ti me when its Statute entered into force does not
prove much. The drafters were perfectly entitle d to provide for a possibility that access may be
attained in this way, as well. Similarly, they did provide for the possibility of this Court having
jurisdiction over “matters specially provided for in the Charter” (Article 36, paragraph 1, of the
Statute) but the Charter eventually contained no such matters (Aerial Incident of 10August1999
(Pakistan v. India), Jurisdiction, Judgment, para. 48).
19. Madam President, the Applicant argues th at the “treaties in force” clause should be
interpreted as the treaties in force at the moment of filing application. We have demonstrated that
such interpretation is untenable. However, the A pplicant hints at, but never develops, an argument
that the Genocide Convention “is a part of post-war settlement” 46. This may be understood as
implying that the Convention could be a peace treat y similar to the treaties of peace after the First
World War, and that, therefore, on a similar basis, Article 35, paragraph 2, could apply to it.
20. We respectfully submit that this is not the case. First, the preparatory work clearly
supports the conclusion reached by the Court that only treaties in force at the time of the entry into
force of the present Statute could qualify under Ar ticle35, paragraph2. Secondly, the Genocide
Convention did not settle post-Sec ond World War affairs, as the peace treaties had done after the
First World War. As Professor Zimmermann has demonstrated, it was future oriented and does not
47
have retroactive effect , in other words, it did not settle matters related to the war. Moreover, the
very idea of the Genocide Convention is that it should have wide membership, and not only include
those States that were at war with each other.
21. Finally, there is a third, and most impor tant reason. The practice of States after the
Second World War clearly demonstrates that treati es concluded after the entry into force of the
present Statute have never been regarded as treaties in force within the meaning of Article35,
paragraph2. A notable example of such practice is the Treaty of Peace with Japan signed on
46
CR 2008/11, p. 57, para. 75.
4CR 2008/9, pp. 20-21, paras. 39 and 40. - 29 -
48
8 September 1951 . If there is a treaty which is a part of the post-war settlement after the Second
World War, this is the one. However, its si gnatories that were not parties to the Statute ⎯
Cambodia, Ceylon, Laos, Japan, and Vietnam ⎯ all of them filed declarations under Security
Council resolution 9. Therefore, not even this quintessential peace treaty was regarded as capable
of bringing before the Court States not parties to the Statute under the “tr eaties in force” clause.
They all filed declarations under Security Council resolution 9 4.
22. Moreover, specifically concerning the Ge nocide Convention, which is invoked in the
present case, we have the example of the Federa l Republic of Germany, which felt it necessary to
file a declaration pursuant to Security Council resolution9 after it had become a party to the
Genocide Convention 50. The text of Germany’s declaration is reproduced at tab2 of the judges’
folder. This declaration shows that Germany, wh ich was not a party to the Statute at the time,
considered that the Genocide Convention, and its ArticleIX, did not provide it with access to the
Court. Thus, the declaration under resolution 9 was filed by Germany and was not opposed by
other States parties to the Convention. It s hould be noted that Germany also filed similar
declarations with respect to five more treati es, including the Brussels Convention, which was
51
arguably part of the post-Second World War settlement . The Applicant does not mention this
practice at all.
23. Moreover, it should be noted that the place the Charter gave to the Court in the system of
the United Nations is different from the place of the Permanent Court of International Justice in
relation to the system of the League of Nations. The present Court is fully integrated into the
system, unlike the Permanent Court, and this must have effect on access. Article 35, paragraph 2,
of the Statute, should be interpreted with this in mind, and no space should be left for possible
circumvention of the conditions and procedures for access to the Court, as this would also effect a
careful balance among the main organs of the Unite d Nations set by the Charter. The Applicant
also fails to take this into account.
4Treaty of Peace with Japan, signed at San Francisco, on 8 September 1951, UNTS 1952, p. 46, No. 1832.
49
I.C.J. Yearbook 1951-1952, pp.213 (Japan and Ceylon) and 214 (Cambodia); I.C.J. Yearbook 1952-1953 ,
pp. 200 (Laos) and 201 (Vietnam).
50
I.C.J. Yearbook 1955-1956, p. 215.
5I.C.J. Yearbook 1971-1972, p. 44. - 30 -
24. Madam President, it is clear that State practice after the Second World War provides
further and strong support to the Court’s conclusion in the Legality of Use of Force Judgments that
the “treaties in force” clause applies only to the treaties that were in force when the present Statute
entered into force.
25. Yesterday, Professor Crawford used much of his time and energy, and invested all its
authority, to convince you to accept the Applicant’ s interpretation of Article35, paragraph2, and
reverse your recent decision in which this provision was analysed in detail. Yet, as I have
demonstrated, his argument cannot hold in the light of the wording of Article35, paragraph2, in
the light of its history, and of the State practice after the Second World War.
26. Moreover, to accept this interpretation would mean that the Court would give Serbia two
different answers to the same question posed in two cases, which were not only instituted almost at
the same time, but concern the same issue ⎯ the issue of access of Serbia to the Court before
November2000. The Legality of Use of Force Judgments are about access and deal with it
explicitly and in detail, unlike any other judgmen ts of the Court. One of the questions these
Judgments dealt with was: can the Genocide Convention be a b asis of access to the Court under
Article 35, paragraph 2, of the Statute? The Court gave its answer to this question, and, honorable
Members of the Court, it gave the right answer . There is no access to the Court under Article 35,
paragraph 2, in the present case because the Genocide Convention is not a treaty in force within the
meaning of this provision.
27. Madam President, Members of the Court, thank you for your kind attention. We could
continue now with Professor Zimmermann, or have a break.
The PRESIDENT: Thank you, Mr. Djeri ć. I think if ProfessorZimmermann would be
prepared to make a start and find a convenient moment in 25 minutes or so. Thank you.
ZMIr.MERMANN:
I.INTRODUCTION
1. Madam President, Members of the Court, my colleagues have addressed different aspects
of the question of access. They have done so in the framework of Serbia’s first preliminary - 31 -
objection. Yet, that first objection is not so lely founded because the Respondent had no access to
the Court. It equally must obtain because this Court has no jurisdiction to entertain Croatia’s claim.
II. THE C OURT HAS NO JURISDICTION TO ENTERTAIN THE CASE
2. Madam President, the Parties agree that jurisdiction in this case can only be based on
Article IX of the Genocide Convention. I woul d have thought that it was equally common ground
that this case involved rather intricate issues of legal personality, statehood, continuity and
succession.
3. On that basis, I was indeed looking forward to hearing how precisely, in the view of the
Applicant, Article IX of the Genocide Convention could be linked to Serbia.
The PRESIDENT: Professor Zimmerman, I am being asked if you could speak a little more
slowly, please.
Mr. ZIMMERMAN: Certainly. This, in particular, because in his pleading on Monday, my
colleague TiborVarady had invited the Applicant to be specific about how exactly and when
52
exactly the Respondent remained or became bound by ArticleIX . Unfortunately, his invitation
seems not to have been accepted.
4. True, in their first round pleadings, counsel for the Applicant were very clear ⎯ even
53
“crystal clear” ⎯ as to the result: they firmly asserted that Article IX was “at all material times”
binding upon the Respondent 54. But neither Professor Crawford nor Professor Sands was clear as
to why that should be the case. When trying to e xplain how they reached their crystal clear result,
they continued to advance the same mélange of mutually exclusive arguments that already could be
found in Croatia’s written submissions. These included:
52
CR 2008/8, pp. 48 et seq., paras. 19 et seq. (Varady).
5CR2008/10, p.32, para.13 and p.38, para.29 (Sands); CR2008/11, p.23, para.9 and p.54, para.65
(Crawford).
5CR 2008/10, p. 28, para. 3 (Sands). - 32 -
⎯ references to automatic succession, or automatic succession to human rights treaties ⎯ which
then was said to cover dispute settlement provisions as well, as anything else was
55
“troubling” ;
⎯ some comments on the declaration and Note of 27April1992, which ProfessorSands hardly
56
analysed but qualified as a “solemn commitment” ⎯ and found arguments considering it
rather “unattractive” 57;
⎯ finally, there were frequent but vague hints at notions of good faith, reliance and legitimate
expectations which now permitte d Croatia, it was argued, to tr eat Serbia as being bound by
Article IX of the Genocide Convention 58.
5. While the result was said to be crystal cl ear, the reasoning leading to it is anything but
crystal clear I may say.
6. Madam President, Members of the Court, the Applicant has been mixing up mutually
exclusive arguments on purpose. It has done so in order to avoid having to take a position on the
complex and difficult legal issues arising at this point of the case.
7. We are dealing with questions of trea ty action, treaty membership, State succession or
State identity. These are technical questions in relation to which the international community of
States as well as the depositaries of treaties insists on precision and clarity ⎯ and they do so for
good reason. This is not a field of law where legal philosophy governs, where object and purpose
reign and broad concepts dominate. This is an area of the law where States are required to be
precise, technical, nuanced and exact. This is wh y even in the uncontroversial 2006 case of State
continuity between Serbia and Montenegro on the one hand, and Serbia on the other, the
Secretary-General, as a depositary, required Serbia to be extremely specific.
8. Although Serbia’s claim, made in writing by President Tadi ć, then was unopposed, the
Secretary-General required an express confirmation by Serbia that: “[a]ll treaty actions undertaken
55Ibid., p. 33, para. 16 (Sands).
56
Ibid., p. 30, para. 10 (Sands).
57Ibid., p. 29, para. 6 (Sands).
58CR 2008/11, p. 9, para. 7 (Crawford). - 33 -
by Serbia and Montenegro will continue in force ... and that all declarations, reservations and
59
notifications made by Serbia and Montenegro will be maintained” .
9. And heeding that request, the Serbian Foreign Minister reproduced that formula 60. A pure
formality, one might say. But essential when State identity and State succession matters are
concerned.
10. Madam President, Professor Sands is of course entitled to find this unattractive. But this
case ⎯ and this succession aspect of the case in particular ⎯ is not about attractiveness. It is no
beauty contest in which the most attractive argument wins. I am afraid that whether we find it
attractive or not, the law of succession to treaties is a technical area of the law. Presenting an
attractive mélange of mutually exclusive assertions cannot replace a detailed assessment of the
possible ways by which Serbia may have become or remained bound by Article IX, quod non.
11. It is this detailed assessment, including an assessment of relevant State practice, that I
will undertake in the following ⎯ so I might warn you that you will be listening to a speech that at
least Professor Sands might find unattractive. Yet it is a speech in which I will demonstrate that on
neither of the potential constructions, the Responde nt in this case is bound by ArticleIX of the
Convention.
12. Madam President, Members of the Court, if we disregard the abandoned continuity
thesis, there are two such potential constructions . The Respondent could have become bound by
Article IX:
⎯ either by way of automatic succession,
⎯ or through the declaration and Note of 27 April 1992.
Allow me to address these two issues in turn before , for the sake of completeness, dealing with a
third option that counsel for the Applicant has not really pleaded but seems to have at least alluded.
59Letter cited in the letter of the Court of 19 July 2006, sent to both Croatia and Serbia and Montenegro.
60See United Nations Treaty Collection DatabaseMultilateral Treaties Deposited with the Secretary-General,
Status as at 15 November 2007, Historical Information , available from: <http://unt reaty.un.org/ENGLISH/bible/
englishinternetbible/historicalinfo.asp - 34 -
1. Serbia never automatically succeeded to the Genocide Convention
13. Madam President, counsel for Croatia stat ed that “Croatia succeeded to the Genocide
Convention by notification of succession dated 12 October 1992” 61. I could not agree more. Yet,
Serbia never notified the depositary of its successi on to the Genocide Convention even if counsel
for Croatia tried to imply otherwise 62.
14. Croatia is obviously aware of this problem . Hence it relied on an alleged principle of
customary international law. In its view, this required the automatic succession to all treaties in
cases of a separation. Alternatively ⎯ the moderate version of its argument, one might say ⎯ it
said that automatic succession should at least apply to human rights treaties.
15. Both lines of argument must, however, be refuted. Let me first address the radical
version of its argument, the idea that there should be automatic succession to all treaties.
(a) Article 34 of the 1978 Vienna Convention on the Succession of States with Regard to Treaties
does not reflect customary international law
16. Madam President, in support of this argument, counsel for the Applicant referred to
Article 34 of the 1978 Vienna Convention on the Succession of States with regard to Treaties. This
provision however did not apply obviously to the dissolution of Yugoslavia. More importantly, it
does not reflect customary international law. This is borne out by the fact that as of today, i.e.,
30 years after its adoption, only 21 States have become parties to this Convention. As an exercise
in codification, that Convention truly is a failure.
17. What is more, one of the reasons for this failure is its Article 34. The majority of States
does not accept the broad and unqualified principle of universal success
ion advocated by the
Applicant. Rather, it accepts the classical view pur suant to which States retain a large measure of
freedom to decide whether or not they may succeed to certain or all treaties of their respective
predecessor States, or whether instead they want to accede to those, and if so under what
conditions.
61CR 2008/10, para. 9 (Sands).
62See CR 2008/10, p. 20, para.13, where Ms Metelko-Zgombic states the Note was sent to “the UnitedNations
Secretary-General, who serves as the depositary of the United Nations”. Th is designation however fails to take account
of the different functions of the Secretary-General and diards the fact that the Note deliberately not sent to the
depositary. - 35 -
18. Allow me to also further remind you th at this Court has so far never accepted the
customary nature of the principle contained in Article 34 of the 1978 Convention
(Gabčíkovo-Nagymaros Project (Hungary/Slovakia ), Judgment, I.C.J. Reports 1997, p. 71,
para.123). As I have previously mentioned you have rather, be it only implicitly, in your
Judgment in the Congo v. Rwanda case taken a position, which contradicts the very idea of
63
automatic succession ⎯ and indeed in a case concerning the Genocide Convention, that is at the
very heart of this case.
19. It is quite curious in turn that counsel for Croatia referred to a statement by the then
representative of the Soviet Union to specifically provide for an automatic succession as to treaties
of “universal character” made during the 1977 Vienna Conference on State Succession. This is
quite curious indeed because during said diplom atic conference the respective proposal to
specifically provide for automatic succession with re gard to such treaties of “universal character”
was formally withdrawn after it had become obvious that it would not gather sufficient support 6.
(b) Human rights treaties and in particular co mpromissory clauses contained therein are not
subject to automatic succession
20. Madam President, that brings me to the moderate version of Croatia’s argument ⎯ the
claim that Article IX should be binding on the Respondent because it had automatically succeeded
to human rights treaties to which the former Yugoslavia had been a party.
21. Again, for Croatia to make such an argumen t now is a somewhat strange turn of events.
In my first round speech, my colleagues and I have highlighted some of the more spectacular
instances in which Croatia prevented the FRY from participating in the work of human rights treaty
bodies. Had the FRY automatically succeeded to these treaties, it would hardly have been
necessary for it to make the specific notifications of succession which Croatia consistently (and
successfully) required the FRY to make.
22. Croatia’s own State practice thus clearly c ontradicts the very idea that there could be an
automatic succession to human rights treaties. But Croatia is not alone in rejecting the notion of
63
CR 2008/8, p. 34, paras. 9-13 (Zimmermann).
6Cf. M. Yasseen, “La Convention de Vienne sur la succession d’Etats en matière des traités”, AFDI 1978,
p. 59 (107). - 36 -
automatic succession. Its conduct is in line with that of many other States. I note that a significant
number of successor States on whose territory th e Genocide Convention ha d previously been
applicable have formally acceded to the Genocide Conventio n. No such accession has ever been
objected to ⎯ with the sole exception of Serbia’s accession where however only three of the
overall 140 contracting parties of the Genocide Convention have objected, two of which ⎯ namely
Croatia itself, as well as Bosnia –– had an obvious litigation interest.
23. The same pattern can be discerned with regard to numerous other human rights treaties.
Let me, to give just one example, mention that in the past more than 30successor States have
acceded to the 1951Refugee Convention even though that Convention had previously been
applicable on their territory. This includes successor States that acceded to the Refugee
Convention after Croatia itself had become a party thereof. And again, Croatia saw no reason
65
whatsoever to object to such accessions .
24. Madam President, Members of the Court, Croatia has also cited statements of treaty
bodies on the question of succession. It is true th at such bodies play an important role in the
development of the respective treaty régime and al so play a crucial role in their day-to-day
application. Yet, they have been established with a view to a specific treaty régime and its unique
features. Their mandate is not to develop general rules of State succession. Their statements
cannot substitute State practice and in particular practice by those States most concerned; this
holds even more true when such practice is not being challenged by the other contracting parties.
25. Madam President, whatever we think about human rights treaties as such, there is another
aspect which counsel for the Applicant seeks to bl ur. As I have shown in my first round speech,
any alleged automatic succession can be even less contemplated with regard to compromissory
66
clauses ⎯ a proposition supported by ample authority contained in our preliminary objections .
26. Counsel for the Applicant found the di stinction between substantive clauses and
67
compromissory clauses “troubling” but beyond that said very little to discard it. In fact, the need
to distinguish the two types of clauses ⎯ substantive obligations on the one hand, and procedural
65
For example Swaziland acceded to the Refugee Conventi on as of 14 February 2000; the United Kingdom had
extended the geographical scope of application to Swaziland by virtue of a declaration dated 11 July 1960.
66
Preliminary Objections, paras. 3.93-3..03
67CR 2008/10, p. 33, para. 16 (Sands). - 37 -
rules establishing specific kinds of dispute settlement ⎯ is plain if we accept the reasons counsel
for Croatia gave for the alleged automatic succession to human rights treaties.
27. He stated that automatic succession was warranted because such treaties confer
68
individual rights and that the obligations contained in the Convention also form part of customary
international law 69. However, ArticleIX of the Genocide Convention ⎯ the compromissory
clause here at issue ⎯ does not possess any of those features. It does not create individual rights.
It is not part of customary international law and even less so a rule of jus cogens. It solely
regulates inter-State relations. The reasoning invoked by counsel for the Applicant ⎯ even if we
accept it for the sake of argument ⎯ simply does not apply as to ArticleIX of the Genocide
Convention.
28. In fact, there would still be no automatic succession to Article IX even if we accepted a
rule of automatic succession for supervisory me chanisms of human rights treaties such as the
ICCPR. The reason for this is that the supervis ory mechanisms of the ICCPR may well be central
to the whole effectiveness of the instruments. In contrast, the Genocide Convention contains many
more mechanisms to prevent genocide apart from ArticleIX, including the specific obligation to
punish offenders, as well as the obligation to co-operate with the international tribunal which is
contained in ArticleVI. This provides yet another reason why ArticleIX of the Genocide
Convention does not share the fate of the substantive treaty obligations even if one were to assume,
be it only arguendo, an automatic succession to the substantive clauses of the Convention.
29. Lastly, the distinction between substantive obligations and compromissory clauses is also
born out of practice. Let me refer you to the treatment of the European Convention on Human
Rights and Fundamental Freedoms ⎯ one of the most maybe crucial modern human rights
treaties ⎯ after both the Czech and the Slovak Republic had notified their succession to the
Convention. Even then, that is, even afte r these two successor States had indicated their
willingness to continue the treaty status of thei r predecessor State, a decision by the Committee of
Ministers of the Council of Europe was still deemed necessary to make them contracting parties of
68
Ibid., pp. 33 et seq., paras. 16-18 (Sands).
6Ibid., pp. 28 et seq., para. 5 (Sands). - 38 -
the Convention and to extend the jurisdiction of the European Court for Human Rights to those
70
successor States .
30. This proves once again that treaty provisions providing for the jurisdiction of an
international tribunal, even when contained in a human rights treaty, cannot automatically be
subject to succession. And this must be even more so true where a State has not even notified its
succession to a treaty containing a compromissory clau se, but has rather made a reservation to that
end.
31. Madam President, this concludes my argument on the question of automatic succession
and this might be an appropriate moment for the usual break.
The PRESIDENT: Yes, Professor Zimmermann. Thank you very much. The Court will
now briefly rise.
The Court adjourned from 11.25 to 11.40 a.m.
The PRESIDENT: Please be seated. Yes, Professor Zimmermann.
Mr. ZIMMERMANN: Thank you, Madam President . Honourable Court, before the break I
demonstrated that Article IX of the Genocide C onvention was not and could not have been subject
to automatic succession by the FRY, now Serb ia. Allow me now to move on to the second
potential link between the Respondent and ArticleIX, and that is the declaration and Note of
27 April 1992.
2. The 1992 declaration and the ensuing Note did not bring about Serbia’s succession to the
Genocide Convention
32. Counsel for the Applicant have qualified said declaration and Note as a “solemn”
undertaking, and have argued that Croatia had rightly relied on it 7. On Monday I showed that the
declaration and the Note lacked each and every required element of an effective and valid
notification of succession. Other than criticizing this as “unattractive”, counsel for Croatia have
7See J.-F. Flauss, “Convention européenne des droits de l’homme et succession d’Etats au traités: une curiosité,
la décision du comité des minist res du Conseil de l’Europe en date 13 juin 1993 concernant la République tcheque et la
Slovaquie”, RUDH 1994, pp. 1 et seq.
7CR 2008/10, p. 30, para. 10 (Sands); similarly CR 2008/11, p. 9, para. 7 (Crawford). - 39 -
not addressed these concerns. I will not repeat my assessment now but instead focus on another
question: Has Croatia really relied on the declara tion and Note of 27 April 1992? The answer to
that question is clear: It has not, maybe it is even crystal clear. But for the purpose of this
litigation, it has throughout rejected the view that this declaration and th e Note could have any
effect. I will not recite all the manifold instances of this line of Croatian conduct. Much material
can be found in our written pleadings. Let me just give one example:
“Given that the ‘Federal Republic of Yugoslavia (Serbia and Montenegro) has
not notified of its succession to the Conventi ons on Slavery, it cannot be considered a
party to the said Conventions.” 72
These were not my words ⎯ these were the words contained in a letter from the Croatian
Permanent Mission to the United Nations to the Chairman of the Commission of Human Rights
dated 24May 1995. This letter was written by Croatia more than three years after the
1992 declaration and Note and there are numerous Croatian statements to the very same effect.
33. Madam President, Croatia never relied on the declaration and the Note. It never placed
trust in it. The declaration and the Note were inherently linked to the very continuity thesis
Croatia, as well as the other successor States, always rejected. For Croatia to invoke good faith
considerations with respect to documents it has vigorously attacked for years is simply misplaced.
34. Finally, it is precisely for that reason that the 1992 declaration and the Note have not
acquired some other sort of self-standing legal effects vis-à-vis Croatia. In a brief passage in his
speech, Professor Crawford seemed to suggest as much when he distinguished it from an offer that
73
had to be accepted to entail legal effects . But the law of State succession, as I have noted at the
outset, is technical. It provides for distinct me chanisms by which obligations are transmitted to
States ⎯ such as formal notifications of succession or accessions. Besides, even if it were treated
as some form of unilateral statement, in line with this Court’s jurisprudence, it would be subject to
clear conditions: it would still have to emanate from the competent authorities, it would still have
to be specific, and it would still ha ve to be relied on. Neither of these conditions is fulfilled in the
case at hand.
7Letter dated 24 May 1995 from the Permanent Mission of Croatia to the United Na tions Office at Geneva,
addressed to the Chairman of the Commission on Human Rights, UN doc. E/CN.4/1996/134 (1996).
7CR 2008/11, p. 9, para. 7 (Crawfo). - 40 -
35. Madam President, Members of the Court, that concludes the Respondent’s argument on
the first preliminary objection. Let me summarize. That objection rests on two pillars: lack of
access and lack of jurisdiction.
36. My colleagues have shown that the Responde nt had no access. I have demonstrated that
there is no basis of jurisdiction because at the ti me of the Application, the Respondent was not
bound by ArticleIX of the Genoc ide Convention, the only purported title on which this claim is
based ⎯ neither through automatic succession, nor by virtue of the declaration and Note of
27 April 1992. Accordingly, the FRY ⎯ now Serbia ⎯ was free to determine to which treaties of
its predecessor State it wanted to succeed by virt ue of a valid notification of succession and to
which it instead wanted to accede.
37. The FRY indeed submitted notifications of succession to a significant number of treaties,
but (contrary to allegations by the Applicant) it also acceded to a number of other treaties. The
latter group included but was not limited to the Genoc ide Convention. Rather there are also other
treaties to which Serbia acceded including treati es to which Croatia was already a contracting
74
party . And once again, no State ⎯ including Croatia ⎯ ever objected to any of the other
accessions, thereby indeed accepting such possibility of accession by the FRY ⎯ now Serbia.
38. When acceding to the Genocide Convention, the FRY could then obviously also make
use of its right to enter a reservation as to ArticleIX of the Convention ⎯ a type of reservation
which indeed this Court has, ever since 1951, upheld (see most recently Armed Activities on the
Territory of the Congo (New Application:2002) (Democratic Republic of the Congo v. Rwanda),
Jurisdiction of the Court and Admissibility of the Application, I.C.J. Reports 2006 , p.21-33,
paras. 28-70). There simply therefore was no questi on whatsoever of any retroactive effect of the
Serbian reservation, as counsel for Croatia wants us to believe. And in fact, even Croatia, one of
the few States that in 2001 protested against the Applicant’s Article IX reservation, recently seems
to have reconsidered its own view on the Article IX reservation made by the FRY. At least this
seems to appear from its conduct vis-à-vis a State which until last Friday featured in the title of this
case: Montenegro.
7Such as the European Cultural Convention, which the SFRY had ratified in 1987: the FRY acceded on
28 February 2001; Croatia had succeeded on 27 January 1993. - 41 -
39. As is well known, Montenegro became an independent State in 2006. As, unlike Serbia,
it did not continue the legal personality of the former State union of Serbia and Montenegro, it
(Montenegro) had to clarify its position regarding treaties to which Serbia and Montenegro had
been a party. One of those treaties was the Genocide Convention.
40. On 26 October 2006, Montenegro notified the United Nations Secretary-General of its
intention to succeed to the Genocide Conventi on. You can find the respective depositary
notification in tab3 of your judges’ folder. This notification of succession, as you can see in
footnote2 of this document specifically referred to the 2001 FRY’s accession to the Genocide
Convention. Upon succession, Montenegro moreov er also confirmed the Article IX reservation
made by Serbia and Montenegro upon its accession to the Convention.
41. The notification of succession as well as the confirmation of the ArticleIX reservation
was duly circulated by the depositary to all treaty parties, including Croatia. In October 2007, the
12-month period provided for protests and objections against reservations lapsed. By that time, no
State had protested against Montenegro’s Article IX reservation. What is more important, Croatia
had not protested either.
42. Madam President, Members of the Court, may I kindly invite you to reflect upon this for
a moment: when accepting Montenegro’s conduct, other States (including Croatia) have accepted
that what was succeeded to by Montenegro by virtue of its notification of succession was the treaty
status of Serbia and Montenegro vis-à-vis the Genocide Convention which had been brought about
by the FRY’s accession of 2001 ⎯ and a treaty status which included the FRY’s ArticleIX
reservation.
43. By not protesting against that treaty status, the other contracting parties including
Croatia have not only accepted that the FRY had only become bound by the Genocide Convention
by virtue of its accession, but also that the FRY’s reservation as to ArticleIX of the Genocide
Convention is indeed a valid one.
44. In other words, and with a more specific focus on the Applicant, Croatia apparently saw
no reason to protest against this ArticleIX r eservation confirmed by Montenegro despite the
fact ⎯ as you will see in your folder ⎯ that said depositary notification even contained a reference
to the FRY itself. - 42 -
45. Madam President, Croatia is not a State th at can invoke good faith in these proceedings.
Its behaviour throughout, as my colleague Tibor Varady has mentioned, was motivated by tactical
considerations. The latest episode involvi ng Montenegro’s seemingly acceptable ArticleIX
reservation is but the last in a series of Croatian inconsistencies.
46. Madam President, Members of the Court, let me now make a couple of very short and
brief remarks as to what counsel for Croatia said as to our third preliminary objection ⎯ or rather
what they did not say.
III. PRELIMINARY OBJECTION 3
47. As to the surrender of persons, our contention that the Court lacks jurisdiction under
Article IX to deal with an alleged obligation of Serbia to punish genocidal acts allegedly committed
in Croatia, i.e., outside Serbia or to hand over pe rsons to Croatia stands unchallenged and must be
considered to have been conceded.
48. Mutatis mutandis, Croatia has neither challenged the argument that a claim for clarifying
the fate of missing persons is inadmissible becau se the Parties have agreed to solve the matter
through a bilateral mechanism.
49. Finally, as to the return of cultural propert y, let me reiterate that in line with the settled
jurisprudence of this Court, its jurisdiction does not extend to any form of seizure or destruction of
cultural property and therefore logically can neithe r extend to the return of such property and that
besides there is not even a dispute as between the Parties in that regard ⎯ the latter contention once
again not having been challenged by counsel for Croatia.
IV. JURISDICTION DOES NOT COVER ACTS PRIOR TO 27 APRIL 1992
50. Madam President, Members of the Court, I now come to my next task in this pleading,
and that is to deal with the Applicant’s argum ents directed against Serbia’s second preliminary
objection ⎯ the objection that jurisdiction in any event cannot cover the period up to
27 April 1992. I will deal with these two aspects of this objection namely:
⎯ first, the temporal application of Article IX of the Genocide Convention; as well as
⎯ secondly, issues raised by Article 10 (2) of the ILC’s Articles on State Responsibility. - 43 -
1. The temporal application of Article IX of the Genocide Convention
51. Madam President, on Monday, I had made various arguments directed against the
75
retroactive application of ArticleIX . These arguments were made in addition to our main
submission that the Respondent never became bound by Article IX at all. Their aim was to exclude
any application of Article IX to events prior to 27 April 1992, that is the date of the Respondent’s
emergence as a successor State.
52. To support that conclusion, I considered the consequences of applying treaties to entities
76
that did not yet exist as States. I also drew your attention to statements made by Croatia itself and
77
by JudgeShahabuddeen . I discussed Article28, of the Vienna Convention on the Law of
Treaties as the provision governing retroactive effects of treaties 78, and then considered how the
79
Genocide Convention itself was interpreted by eminent scholars such as WilliamSchabas or
Nehemiah Robinson 80.
53. I do not think that any of these arguments was addressed at all, let alone refuted, in the
Applicant’s pleadings. Of course, counsel for th e Applicant presented a conclusion that differed
from mine ⎯ namely that ArticleIX did apply retroac tively, even to events which preceded the
emergence of the Respondent as a State. Yet counsel added precious little in support of that
contention. Again ⎯ as with respect to State succession ⎯ things were evident and crystal clear to
Professor Sands.
54. Madam President, as the saying has it, there are many clear and easy answers to complex
questions ⎯ the only problem being that they are almost inevitably false. The same, I have to say,
is true here.
55. Just as with respect to St ate succession, things are simply not as simple and crystal clear
as ProfessorSands would have us believe. In his view, the retroactive application of ArticleIX
was mandated, he argued, because you allege dly decided so in pa ragraph34 of your
75CR 2008/9, pp. 13 et seq., paras. 1 et seq. (Zimmermann).
76
Ibid., paras. 12-13 (Zimmermann).
77
Ibid., para. 21 (Zimmermann).
78Ibid., paras. 29 et seq. (Zimmermann).
79Ibid., para. 40 (Zimmermann).
80Ibid., para. 39 (Zimmermann). - 44 -
1996 Judgment in the Bosnia case, and because there could be no time gap in the application of a
treaty such as the Genocide Convention. But neither assertion is convincing.
56. Let me start with what I believe, and will demonstrate, is a mistaken reliance by Croatia
on paragraph 34 of your 1996 Judgment.
(a) Paragraph 34 of the 1996 Judgment
57. I am afraid to say that the way Croatia was trying to transpose your holding in
paragraph34 of the 1996 Judgment in the Bosnia case to the case at hand is misleading since it
completely disregards the whole setting and context of your holding.
58. First of all, why did the Court in 1996 have to pronounce on the temporal application of
the Convention? It did so because the Applicant’s status vis-à-vis the Convention was in doubt. In
its sixth and seventh preliminary objections ⎯ the respective text of which you can find at tab 4 of
your judges’ folder ⎯ the FRY, the Respondent, had argued that Bosnia’s notification of
succession, dated 29December1992, should either be treated as an accession or that it, even if it
were to be construed as a notification of succession proper, could not have retroactive effect as to
the date of independence of Bosnia and Herzegovina.
59. These were the two only points that were raised by the Respondent as to the jurisdiction
ratione temporis of the Court, these were the two only poi nts that were then argued by counsel for
the two sides 81, and on these points only did the Court pronounce. Nothing more and nothing else.
60. In paragraphs 23 and 24 of its 1996 Judgment, the Court first determined that Bosnia had
indeed succeeded to the Genocide Convention. The Judgment then went on in paragraph 34 ⎯ the
text of which you may find at tab 5 of your folder ⎯ to consider the effect ratione temporis of such
succession
61. After having noted the preliminary objecti ons of the Respondent, the Court determined
that the Genocide Convention did not contain any clause which would exclude ⎯ contrary to the
FRY’s argument ⎯ that a successor State could retroactively become bound as from the date of its
independence, even if its notification of succession was deposited only significantly later.
8CR 96/6, pp. 20-33 (Etinsky), CR 96/10, pp. 46-48 (Suy); see also, CR 96/9, pp. 35-42 and CR 96/11, pp. 62-67
(Pellet). - 45 -
62. This is the underlying reason why the Court, when dealing with the issue of its
jurisdiction ratione temporis in paragraph34, very aptly and car efully added that its jurisdiction
ratione temporis could not “in such manner” be limited ⎯ namely could not be limited in the
manner argued by the Respondent in its sixth and seventh preliminary objections.
63. It was therefore the Court’s position that Bosnia and Herzegovina had become bound by
the Genocide Convention by the time of its independ ence, due to its notification of succession, that
is, by 6 March 1992 despite the fact that its no tification of succession had only been deposited on
29 December 1992.
64. On the other hand, the FRY was at the time of the 1996 Judgment considered to have
been a party to the Genocide Convention ever since 1950 ( I.C.J. Reports 1996 (II) , p.610,
para.17). Accordingly, there was no doubt that th e treaty relationship ha d come into existence
between Bosnia on the one hand and the FRY by 6 March 1992.
65. Let me also note that the conflict in Bosn ia and Herzegovina only started in April 1992,
that is approximately one month after the treaty re lationship, as it was then in 1996 perceived, had
been created between the two States involved. When the Court therefore found in paragraph 34 of
its 1996 Judgment that is had jurisdiction “with re gard to the relevant facts which have occurred
since the beginning of the conflict which took place in Bosnia and Herzegovina” ( ibid., p.617,
para.34) there was no question whatsoever to apply the Genocide Convention and its ArticleIX
with regard to a period where Bosnia and Herz egovina was not yet bound by the Convention or
where it had not even existed.
66. Seen against this context, Croatia thus reads far too much into paragraph34 of the
1996Judgment. This was not a sweeping statemen t requiring the retroactive application of a
convention to a time when one of the litigants did not exist.
67. Instead, the Court confirmed that Bosnia had succeeded to the Genocide Convention, and
that its succession could take effect from the date of Bosnia’s independence, as the treaty relation
between the two litigants’ States was established at that time. Nothing more, nothing less, nothing
else.
68. Now, what is then the true effect of that holding, properly read, for our case? We submit
that it is this: the Court has jurisdiction ratione temporis from the time a treaty relationship might - 46 -
have come into existence between Croatia on the one hand and the FRY on the other. That,
however, could only have been, if ever, on 27 April 1992, as before that, the FRY did not yet exist.
69. In line with your holding in paragraph34 of the 1996 Judgment, the Court can
accordingly only have jurisdiction in this case ⎯ if ever it has jurisdiction at all ⎯ to give effect to
the Genocide Convention with regard to facts which have occurred after 27 April 1992.
70. Madam President, allow me now to deal with Croatia’s second argument by which it
attempts to argue for a retroactive applicati on of the Convention concerning a period where the
Respondent did not even exist yet, and that is the allegation as anything else would lead to an
impermissible time gap.
(b) The time gap argument
71. Let me first note that this argument disregards the drafting history of the Convention and
the strict presumption, spelled out in Article 28 of the Vienna Convention on the Law of Treaties
against retroactivity.
72. It also ignores the analyses by Robinson and Schabas which I referred to on Monday 8.
But more importantly, it blurs the fundamental di stinction between the different obligations under
the Genocide Convention. By qualifying the Conve ntion as “universal law” and warning against
time gaps, counsel for the Applicant seeks to turn Article IX into a catch-all clause also embracing
obligations arising under customary law and to circumvent the usual rules of treaty interpretation.
73. Madam President, no one denies the crucial and fundamental importance of the Genocide
Convention. As Professor Sands observed, your jurisprudence, which since 1951 has interpreted
the Convention, is of utmost importance. But that jurisprudence must be taken at face value. Yet,
taking it at face value requires us to distinguish be tween different types of obligations enshrined in
it, and enables us to view warnings against time gaps more realistically.
74. First, your jurisprudence since 1951 cannot be interpreted to mean that all aspects of the
Convention were declaratory. It rather unde rlines the importance of distinguishing between
different types of obligations. Take the example of Article IX, which is so relevant and central to
82
CR 2008/9, p. 20, paras. 39-40 (Zimmermann). - 47 -
our case: How possibly could a provision on disput e settlement be declaratory in a system of
dispute settlement based on compromissory clauses?
75. Certainly, ArticlesII and III of the Convention confirmed pre-ex isting obligations, but
the system of dispute settlement set in place did not exist before. Or, to put in the words of
Professor Crawford: There are certainly not two kinds of genocide, treaty genocide and customary
genocide ⎯ but there can certainly be only one kind of jurisdiction, namely treaty-based
jurisdiction.
76. Thus, in respect of ArticleIX, the Convention could hardly be said to be a “treaty that
has a declaratory character and that applies universal law”. This is brought out very clearly by this
Court’s jurisprudence which time and again has u nderlined the distinction between substantive
obligations and procedural means for their implementation (see, e.g., Armed Activities on the
Territory of the Congo (New Application : 2002) (Democratic Republic of the Congo v. Rwanda),
Jurisdiction of the Court and Admissibility of the Application, Judgment, I.C.J. Reports 2006, p. 32,
paras. 66-67).
77. Counsel for the Applicant has sought to brush aside this differentiated approach and
labelled the Convention in its totality as universal, declaratory law 83. In so doing, they have tried
to make the Applicant’s retroactivity argument appear less dramatic. But it is, indeed, dramatic.
78. May I kindly invite you to reflect for a moment about the consequences of Croatia’s
argument.
79. Assume what might happen if Ar ticleIX of the Genocide Convention ⎯ or, for that
matter, other compromissory clauses annexed to treaties ⎯ did indeed apply retroactively, and
could be applied even back to times before entiti es had emerged as independent States and became
parties to the conventions in question.
80. Imagine the idea of genocide claims based on nineteenth century conduct and of turning
ArticleIX into a vehicle for remedying all types of past injustices. If we accept the Applicant’s
argument, it is difficult to see how the Pandora’s box could be closed again. The ILC, in its work
on the law of treaties, surely had good reasons to be particularly cautious when dealing with the
83
CR 2008/10, p. 36, para. 21 (Sands). - 48 -
retroactive effects of dispute settlement clauses. And as much as counsel for the Applicant has
tried to speak about the Genocide Convention in its totality, and about its individual rights
concerns, it is crucial to realize that this whole argument depends on the retroactive application of a
dispute settlement clause that is solely about inter-State litigation.
81. It is in this light that the Applicant’s second assertion has to be approached: the alleged
time gap to which Professor Sands referred.
82. For a start, let me say that it is difficult to understand the exact point to which the
time-gap argument leads. Does Croatia mean to suggest that whenever a time gap appears,
Article IX becomes applicable? Or is it suggested that the existence of a time gap is actually one of
alternative ways of becoming bound by Article IX ? We believe that this latter proposition is ⎯ to
state the obvious ⎯ not acceptable.
83. But let me make a more simple point: if we look at the universal law against genocide,
to which Professor Sands referred, there is in fa ct no time gap. Until 27 April 1992, until the FRY
was created, the former Yugoslavia continued to ex ist and continued to be bound by the Genocide
Convention. This was indeed ac knowledged by counsel for Croatia when he stated that “(s)o long
84
as the SFRY continued to exist, it remained bound by the terms of the Genocide Convention” .
84. More importantly, as ProfessorSands remi nded us, the rules against genocide are not
exclusively a matter of treaty law. As this Court held already in 1951, the commission of genocide
is also prohibited under customary law. As of today, the customary prohibition even possesses the
character of jus cogens . Accordingly, regardless of the app lication or non-application of the
Genocide Convention as such, committing the act s identified in ArticlesII and III of the
Convention, constitutes a violation of customary international law and, as such, may give rise to
State responsibility or individual criminal responsibility.
85. There simply is no time gap regarding the prohibition of genocide, or regarding
responsibility for genocide.
84
CR 2008/10, p. 29, para. 8 (Sands). - 49 -
86. What Croatia appears to be really driving at is not a time gap regarding the prohibition of
genocide or responsibility ⎯ whether individual or State ⎯ but the question of the availability of a
special kind of settlement of disputes, provided for in Article IX.
87. But at this point, we are not on the ground of established general principles at all. This is
not only because as a general matter, the kind of dispute settlement envisaged in Articl⎯IX
International Court of Justice proceedings provided in a compromissory cla⎯ as a matter of
logic presupposes a basis in treaty law. But because with more specific regard to Article IX, there
can hardly be said to be a consensus among the States parties.
88. Out of the 140 States parties to the Genocide Convention, 27 ⎯ that is one in five ⎯ are,
or at some point were, not bound by Article IThe Court has upheld their reservations in many
cases, including in cases brought by the Respondent against the United States and Spain (see the
two Orders of 2July1999 in the Legality of Use of Force cases between Yugoslavia and Spain,
I.C.J. Reports 1999, p. 761; and between Yugoslavia and the United States, ibid., p. 916re
recently in the Congo v. Rwanda Judgment (I.C.J. Reports 2006, pp. 21-33, paras. 28-70).
89. This Court has thereby accepted that while the respective respondents were bound by the
prohibition against genocide, and while any genocidal act attributable to them would entail
responsibility, their responsibility could noestablished through the special kind of dispute
settlement envisaged in Article IX.
90. In Professor Sands’s terminology, this might be called a “time gap”; in fact, it would be
an open-ended gap that could only be closed if the States in question decided to withdraw their
valid reservations. But it is clearly a “gap” the Court has accepted in many cases.
91. Madam President, this brings me to my next point, namely that the Court may not
exercise jurisdiction vis-à-vis Serbia for violatio ns of the Genocide Convention committed by an
alleged movement concerning a period preceding the Respondent’s existence.
V. THE C OURT MAY NOT EXERCISE JURISDICTION VIS À -VISSERBIA FOR VIOLATIONS OF THE
GENOCIDE C ONVENTION COMMITTED BY AN ALLEGED MOVEMENT CONCERNING
A PERIOD PRECEDING THE RESPONDENT S EXISTENCE
92. Let me now demonstrate why we con tinue to believe, contrary to what
ProfessorCrawford tried to demonstrate yesterday, that the Court cannot exercise jurisdiction for - 50 -
violations of the Genocide Convention committed by whatever movement during a period
preceding the Respondent’s existence and therefore preceding the entry into force of the
Convention.
93. I will do so following up on what my colleague Vladimir Djerić outlined on Monday.
94. Madam President, any international wrongful act of a State presupposes the breach of an
international obligation and the attribution of the given action to the State in question.
Accordingly, rules on State responsibility are secondary rules, which by their very nature
presuppose the existence of primary rules. And it is only the breach of such a primary rule which
may eventually bring about State responsib ility provided the alleged breach of such a primary rule
is attributable to a given State.
95. Article10, paragraph2, constitutes a specific rule on attribution. It presupposes,
however, that the violation of a primary rule has taken place, which then, by virtue of
Article 10 (2), would be attributed to the State concerned, in our case, allegedly, Serbia.
96. More specifically with regard to our case and in order for the Court to be able to exercise
jurisdiction under Article IX, the Court must be in a position to find that a breach of the Genocide
Convention has occurred which eventually may be attributed to Serbia. This is due to the fact that
its jurisdiction in this case, if ever there is jurisdiction at all, is lim ited to possible violations of the
Convention.
97. Let me reiterate, in order for the Court to exercise its jurisdiction in this case, it must be
possible, as a matter of logic, that a violation of the Convention has occurred. Accordingly, the
Court would have to eventually decide wh ether a violation of the Genocide Convention as such
could have been committed in the period before 27 April 1992.
98. Any such determination presupposes, however, that the Genocide Convention and
accordingly also its Article IX was already applicable during that period.
99. In the case at hand, the Convention is the only instrument containing primary obligations
for which the Court might exercise jurisdiction, if ever it has jurisdiction. The question whether the
Genocide Convention was applicable during the re levant period is however to be exclusively
answered by the Convention itself and rules of treat y law. This was confirmed by the ILC, which
stated in its Commentary on its Articles on State responsibility: - 51 -
“Nor do the articles deal with the question whether and for how long particular
primary obligations are in force for a State. It is a matter for the law of treaties to
determine whether a State is a party to a valid treaty, whether the treaty is in force . . .
and with respect to which provisions, and how the treaty is to be interpreted. . . . The
articles take the existence and content of th e primary rules of international law as they
are at the relevant time; they provide the framework for determining whether the
consequent obligations of each State ha ve been breached, and with what legal
consequences for other States.” 85
100. This now brings me to Article10, paragraph2. Any attempt to apply the principle
contained in Article10, paragraph2, with re gard to acts that allegedly occurred prior to
27April1992 presupposes a prior determination that a primary obligation did exist at the crucial
time, i.e., well before 27April1992. The only relevant primary obligations are however the
obligations contained in the Genocide Convention gi ven that the Court’s jurisdiction is exclusively
based on Article IX of the Convention.
101. I have already demonstrated, however, that the acts that have allegedly occurred during
that period could not constitute violations of the Genocide Convention committed by the FRY
because the Genocide Convention could not have been in force with regard to the FRY, given that
the FRY had not even existed prior to 27 April 1992.
102. Croatia now attempts to circumvent this result by relying on Article 10, paragraph 2, of
the ILC Articles. Yet, this norm only regulates the secondary question of attribution. The
secondary question of attribution can however only come up once a violation of a primary
obligation has previously been determined.
103. The issue of a violation of the Genocide Convention with regard to acts prior to
27 April 1992 simply cannot arise, however, beca use the FRY was not yet existing and could thus
not have yet been bound by the Convention. The alleged movement, in turn, to state the obvious,
could not have been a party to the Genocide Convention at all.
104. It is however only with regard to viola tions of the Genocide Convention that the Court
may eventually exercise its jurisdiction under Artic leIX of the Convention. Yet, a movement,
insurrectional or otherwise, cannot, as a matter of simple logic, commit violations of a treaty by
which it is not bound and cannot even be bound.
8Paragraph4 of the ILC’s introductory Commentary to the Articles on State Responsibility, reproduced in
UN doc A/56/10, pp. 43 et seq. - 52 -
105. Madam President, what the Applicant has tried is to blur the crucial and essential
distinction between a possible violation of a primary obligation on the one hand and the question of
attribution on the other. As a matter of fact, Croatia has used the secondary rule contained in
Article10, paragraph2, to imply that the obligations contained in the Genocide Convention and
accordingly the Court’s jurisdiction could be extended to a period in time in which the Respondent
in this case did not even exist. It did so by arguing that alleged genocidal acts committed by the
so-called movement prior to the coming into existe nce of the Respondent can be attributed to the
respondent State.
106. Let us assume for one moment, be it only arguendo, that the alleged movement indeed
was a movement within the meaning of Article 10, paragraph 2, and that indeed this movement did
commit genocidal acts. These genocidal acts could then indeed be attributed to the Respondent and
would give rise to State responsibility for those genoci dal acts. Yet, this could still not give rise to
the Court’s jurisdiction because the movement c ould not have not been bound by the Genocide
Convention as not being a contracting party thereof.
107. Accordingly, even assuming there was attribution within the meaning of Article10,
paragraph 2, the Court could still for that reason al one not exercise its jurisdiction which is limited
to violations of the Genocide Convention as such.
108. Madam President, this jurisdictional objection I just outlined to you is solely and
exclusively related to the exercise of the Court’ s jurisdiction. Deciding it does not presuppose any
factual findings whatsoever but simply is a matter of legal logic. As a matter of fact it was already
Judge Fitzmaurice in the Northern Cameroons case that confirmed that “a claim . . . would have to
be ruled out as inadmissible so soon as it became clear that it related to a period in respect of which
it was impossible a priori for the defendant State to be under any obligation” (Northern Cameroons
(Cameroon v. United Kingdom), Preliminary Objections, Judgment , I.C.J. Reports 1963, separate
opinion of Judge Sir Gerald Fitzmaurice, p. 129).
109. Madam President, honourable Members of this Court, this concludes my argument. My
colleague, Tibor Varady, will now demonstrate that there is yet another argument why Article 10,
paragraph2, of the ILC Articles cannot be applied to the case at hand, na mely because there was
not even at any relevant point in time a “movement” within the meaning of Article 10, paragraph 2. - 53 -
Thank you very much.
The PRESIDENT: Thank you, Professor Zimmermann. I now call Professor Varady.
VMAr. ADY:
JURISDICTION CANNOT BE EXTENDED RETROACTIVELY ON THE GROUND OF A RTICLE 10
OF THE ILC A RTICLES
A. Introduction
1. Madam President, distinguished Members of the Court, I would like to support with some
more arguments and from a different angle our second preliminary objection. Professor Crawford
emphasized yesterday that “the relevant rule is codified in Article10 of the ILC Articles on State
Responsibility”. He also cites Article 10 and submit s that its second paragraph is applicable to the
circumstances of our case. With due respect, and th is is not just a turn of phrase, the authority of
ProfessorCrawford does mandate respect, I would lik e to demonstrate, however, that this is not
applicable.
2. Madam President, Members of the Court, in order to establish jurisdiction over a person,
the person in question has to be appropriately qualified. It has to have access to the Court: it has to
be bound by consent. But there is also another qualification. Claims against a respondent can only
be admissible if these claims are directed against the same person who is invited to appear as a
respondent. This obvious requirement is missing if the respondent is Serbia, while the claims are
directed against a “Serbian nationalist movement”. In other words, this evident prerequisite simply
cannot be met if the respondent State did not exist at the time period to which the claims are linked.
One cannot have jurisdiction towards a State rgarding acts which were committed before that
State came into existence. Such claims must also be inadmissible.
3. We are aware that there is an exception to almost every principle. The question has arisen
with regard to specific situations prior to indepe ndence, before coming to existence as a State. In
his treatise on “The Law and Practice of the International Court” Shabtai Rosenne submits that the
date of independence as a State is not “automati cally and for all purposes the exclusion date”, and - 54 -
explains that jurisdiction of an international cour t could conceivably reach back to a date before
independence in some cases when a former movement becomes the new State 86.
4. Rosenne hastens to add, however, that: “Nev ertheless, as a matter of general principle the
Court should not be quick in exercising jurisdiction over disputes originating before or relating to
situations and facts occurring before the beginning of a party’s existence as a State.” And then he
continues:
“The reason why this principle is presupposed is found in the undoubted
connection that always exists between legal responsibility and legal personality, and in
international law between international res ponsibility and international personality. It
is that connection above all which speaks against retroactivity into a period during
87
which that essential factor was missing.”
5. The picture is clear. Jurisdiction should no t be extended, as a matter of principle, into a
period in which international personality was missing ⎯ the State did not exist. Exceptions may
exist in specific situations in which insurrec tion movements develop into a State, but such
exceptions should not be made lightly.
6. Madam President, it appears that the Parties agree that the ILC Articles on State
Responsibility have identified those specific situati ons in which the issue of the responsibility of a
State may be raised retroactively, regarding conduct which preceded existence. We shall now
demonstrate that the ILC Articles do not and cannot substantiate the claim that jurisdiction can be
extended retroactively to a period prior to 27 April 1992.
B. Neither the concept itself nor the three indispensable elements of the concept are fitting
7. Madam President, Article10 describes two situations in which the conduct of an
insurrectional movement may be ascribed to a future State. They are explained in more details in
the Commentaries which accompany the Articles 88. Paragraphs1 and2 address two scenarios.
Croatia opted to rely on the scenario of para graph2, and cites paragraph2 in its Written
Observations 89.
86
Shabtai Rosenne, The Law and Practice of the International Court, 1920-2005, Vol. II, Jurisdiction, M. Nijhoff
Publishers, 2006, p. 919.
87
Ibid., p. 920.
88Crawford, J., The International Law Commissions Articles on State Responsibilit⎯ Introduction, Text and
Commentaries, 2002, Cambridge University Press (hereinafter “Commentary”).
89See Written Observations, para. 3.21. - 55 -
8. With regard to paragraph 2, the Commentary explains:
“Paragraph2 of Article10 addresses the second scenario, where structures of
the insurrectional or other revolutionary movement become those of the new State,
constituted by secession or decolonisation in part of the territory which was previously
90
subject to the sovereignty or administration of the predecessor State.”
9. Paragraph 2 sets three essential elements:
(a) the conduct in question has to be the conduct of a movement striving to establish a new State in
part of the territory of a pre-existing State;
(b) this movement has to be an insurrectional or like movement; and
(c) this movement has to be successful.
10. It is clear that all three elements are necessary preconditions to the applications of the
norm formulated in Article10(2). The conduc t of an insurrectional movement can only be
ascribed to the new State if the situation matches the scenario specified in Article10(2). If only
one of the elements is missing, this is not any more the scenario contemplated in the norm of
Article10(2). We shall demonstrate, Madam President, that none of the essential elements
described in Article 10 (2) is matching the given circumstances of our case.
B.1. No “movement” aiming to establish the FRY as a new State
11. Attempts to stretch the wording of Article 10 (2) to the actual facts encounter a stumbling
block already at the very first step. Article 10 (2) speaks of movements striving to establish a new
State in part of the territory of a pre-existing St ate. In order to ascribe to the Respondent conduct
which took place before the FRY came into being, one would first have to demonstrate that a
movement aiming to establish the FRY as a new State existed. No such movement has, however,
been identified, or could have been identified.
12. Where the Applicant presents arguments in the context of Article10, the word
“movement” appears, but the references remain elusive and unspecified. An attempt to describe
the “movement” in question was made in the Written Observations. It is stated (in para. 3.33):
“There can be no doubt that the Serbian nationalist movement that ultimately
succeeded in establishing the FRY (Serbia and Montenegro) as a new State can be
regarded as falling within the scope of an ‘insurrectional or other’ movement for the
purposes of Article 10, paragraph 2 of the ILC Articles.”
9Ibid. - 56 -
13. Madam President, there was no movement, there was no structure, during the conflict
called “Serbian nationalist movement”. Admittedly, a movement could conceivably exist, without
having a name. This would be quite unprecedented, but even if this were the case, one would have
to define the movement somehow. The Applicant h as given no definition. Only a name is given
which has not been the name of any movement. Th e simple reason for lack of definition is that no
definition can be given which would fit the purpose of the Applicant. There was no movement
which aimed at and succeeded in establishing the FRY.
14. Furthermore, in order to propose a c onstruction which would be compatible with
Article10, it is clearly necessary to identify a movement which is ⎯ as stated in the
91
Commentary ⎯ in “continuing struggle with the constituted authority” . This essential
characteristic is also obviously missing. The “movement” suggested by the Applicant is clearly not
such a movement, not even in the words of the Appl icant. Whatever we are talking about in this
case, it is certainly not a struggle between the sai d movement and the constituted authority. There
was no such struggle.
B.2. No insurrection or like movement
15. Even if one could somehow overcome the l ack of a relevant and identifiable movement
aiming to establish the FRY as a new State, a nd even if a relevant movement existed, (quid non),
such movement could not have had a character which would fit under Article 10 (2). It is clear that
the FRY was not created by an insurrection. Being aware of the fact that the notion of
insurrectional movement is not fitting, Croatia stresses that the definition of Article 10 (2) mentions
“insurrectional or other” movements. This is, of course, a fact. But it is also a fact that a context is
defined with the “insurrectional or other” m ovement. This context is explained in the
Commentary, which speaks of “insurrectional or other revolutionary movement” 92. It cannot be
any movement; it has to be some movement challenging the established order.
16. Furthermore, the context and the framework of Article 10 (2) assume some insurrection,
some uprising, some challenge on the territory which becomes the new State. Again, the pattern is
91
Commentary, p. 116, para. 2.
92
Commentary, p. 118, para. 8; emphasis added. - 57 -
not fitting. There was no insurrection or revolut ion in the FRY (in Serbia and Montenegro), the
conflict was not in Serbia and Montenegro.
17. Explaining the position of insurrectional or similar movements towards the pre-existing
State, and explaining when the conduct will be ascribed to the emerging State, the Commentary
speaks of “[t]he conduct of such movements duri ng the continuing struggle with the constituted
93
authority . . .” . It is common ground that the pre-existing State, the constituted authority, was the
SFRY, the former Yugoslavia. But Serbian forces were certainly not “in a continuing struggle”
with the SFRY. The conduct which is the subject -matter of the claim is clearly not a conduct
“during struggle with the constituted authority”. The FRY (now Serbia) is not charged for acts
allegedly committed against the “constituted authority”, which are the authorities of the former
Yugoslavia. Again, the pattern is just not fitting.
B.3. There was no success
18. Another key element of the scenario contemplated under Article10(2) is success. The
wording of Article10(2) states this explicitly, and this has also received much emphasis in the
Commentary. The Commentary describes the situati on regulated by Article10(2) as a situation
“[W]here the insurrectional or other movement succeeds in establishing a new State...” 94 The
Commentary cites cases in support of the proposed rules, and all cases cited in the Commentary
give emphasis to success as a requirement 95. But where is success in our case?
19. Madam President, the element of success is patently missing in our case. A successful
movement is a movement which achieves its aims. This means that what was envisaged and
claimed was also accomplished. The question ari ses as to what were the aims of the “Serbian
nationalist movement led by PresidentMiloševi ć”, as it was stated. Had there really been an
insurrection movement in the sense of Article 10 (2), this would have been easy to establish. But
this was not the case.
20. Nevertheless, the question whether there was success can easily be answered. It can
easily be answered because it is obvious that the conflict did not end with a success of Serbian
9Commentary, p. 116, para. 2.
94
Commentary, p. 117, para. 6; emphasis added.
9Commentary, pp. 119-120, paras. 12-13. - 58 -
nationalism ⎯ notwithstanding whether this Serbian nati onalism did or did not yield a movement
compatible with the concept and scenario of Article 10 (2).
21. There was no success notwithstanding whether one accepts as the aim the one asserted
by Mr. Milošević and his associates (the preservation of the SFRY), or the one asserted by Croatia
to be the real aim of the “Serbian nationalist movement led by President Milošević”.
22. It does not need to be demonstrated that the former Yugoslavia was not preserved. It was
dissolved. It fell apart. If one were to accept for the sake of argument the allegation of Croatia that
the actual aim of the “Serbian nationalist movement” was a “Greater Serbia” 96, there is again
nothing like success. No “Greater Serbia” came into being. No part of Croatia, no part of Bosnia
and Herzegovina or of Macedonia became part of Serbia. This is obvious.
23. Madam President, there may be things whic h remained unclarified during the conflict in
the former Yugoslavia, but one thing is certain. The conflict did not end with the success of the
Serbian aspirations. Being aware of the require ment of success, and trying to construe some
resemblance of success, the Applicant suggested in its Written Observations that “the Serbian
nationalist movement ultimately succeeded in establishing the FRY” 97. But this “success” does not
correspond to any stated or unstated aim or purpose. This is not compatible with logic either.
There was no need to have an “insurrection or other movement” in order to establish the FRY as a
State. Neither Croatia nor other republics of the former Yugoslavia opposed this.
C. Conclusions
24. Madam President, distinguished Members of the Court, the rule of Article10 was
designed to deal with situations in which new States are emerging by secession or decolonization.
This is stated expressly in the Commentary 98. Article10 was not designed to encompass all
possible conflicts, or all variations of decomposition of States. Thus, it should not be perceived as
unusual, or unexpected, if the specific circumstanc es of the dissolution of a Balkan State do not fit
under the pattern of Article10(2). None of th e elements of the scenario contemplated in
Article 10 (2) match the situation at issue in this dispute.
96
See, e.g., Memorial, paras. 1.26, 2.04, 2.44, 2.71, 2.86, 3.03, 3.71, and 3.80.
97
See Written Observations, para. 3.33.
98Commentary, p. 118, para. 8. - 59 -
25. Nothing fits, because nothing can fit on a wrong track. The framers of the ILC Articles
intended to create an exception having in mind a given type of situation. In the Commentary, it is
stated explicitly that the scenario addressed in Ar ticle10(2) is that “[w]here the structures of the
insurrectional or other revolutionary movement become those of a new State, constituted by
secession or decolonization . . .” 9. The situation we have in front of us is a completely different
one.
26. This is why not even a flexible interpre tation of Article10(2) could yield a different
result. No element is fitting. To begin with, there was no Serbian nationalist movement aiming to
establish the FRY as a new State.
27. Furthermore, the term insurrection may be broadly interpreted, but it cannot mean the
opposite. One cannot propose ⎯ as Croatia does ⎯ that the authorities and the army of the
pre-existing State (the SFRY) committed misdeeds under the control of the “Serbian nationalist
movement”, and at the same time posit the “Serbian nationalist movement” as an insurrection, a
revolutionary or like movement challenging the same pre-existing State.
28. Likewise, success can again be broadly interpreted, but, again, it cannot mean the
opposite. Serbian nationalism did not succeed.
29. Madam President, Members of the Court, Ar ticle 10 envisages a pattern, a certain set of
circumstances. The facts of this case just do not fit under this pattern. Article10(2) cannot be
applied to the circumstances of our case, and Article10(2) cannot justify retroactive extension of
jurisdiction to conduct preceding the emergence of the FRY as a State.
C ONCLUSIONS
1. With your permission, Madam President, I sh all move to our conclusions. I would like to
start my closing remarks with a short reference to some policy arguments advanced by Croatia. In
his introductory speech, Professor Šimonović submitted that the establishment of legal
responsibility by this Court “will lay the gro und for sustainable peace, stability and good
100
neighbourly relations” . We believe that this proposition deserves respectful consideration. But
9Ibid.
10CR 2008/10, p. 8, para. 5 (Šimonović). - 60 -
let me also say that the past decades have shown that it is just not easy to predict what measure or
decision will bring us closer to peace in our region. The argument could also be made that in our
region ⎯ and maybe not only in our region ⎯ a continued confrontation of States stirs up passions,
and it may also be perceived as a continuation of ethnic rivalries.
2. It is just not easy to predict what will c ontribute most to peace. Justice is certainly
conducive to peace. But justice assumes a comprehensive look. The alleged jurisdiction of the
Court in this case is restricted to genocide and, as we have pointed out, the ICTY undertook a
thorough scrutiny of misdeeds in Croatia, but not one single person was convicted, or even indicted
for genocide in Croatia. There is prima facie no genocide. Hence, this avenue of justice which has
a distinct dignity, and which has already given inva luable contributions to both the perception and
to the resolution of the Balkan conflicts, may not be the best suited to the specific circumstances of
this dispute.
3. Furthermore, both Serbia and Croatia have made quite considerable progress since the
days of the conflict, and improved their mutual relations. One wonders what could be the effects at
this moment of embarking on the merits of a dispute between two States with a focus on
accusations for genocide.
4. Madam President, there is a shared belief today that international crimes should not go
unpunished. This belief has become a part of our civilization, and has a critical importance. But
this does not mean that there is ⎯ or there should be ⎯ only one avenue in dealing with
perpetrators of international crimes. I would like to refer at this point to a statement in the joint
separate opinion submitted in the Arrest Warrant case:
“the international consensus that the perpetrators of international crimes should not go
unpunished is being advanced by a flexible strategy, in which newly established
international criminal tribunals, treaty oblig ations and national c ourts all have their
part to play. We reject the suggestion that the battle against impunity is ‘made over’
to international treaties and tribunals, w ith national courts having no competence in
such matters.” ( Arrest Warrant of 11April 2000 (Democratic Republic of the
Congo v. Belgium), Judgment, I.C.J. Reports 2002 , joint separate opinion of Judges
Higgins, Kooijmans and Buergenthal, pp. 78-79, para. 51.) - 61 -
There is no jurisdiction in this case
5. Madam President, Members of the Court, the poi nt I am trying to make is that there are,
indeed, various policy considerations, which ma y be juxtaposed. The battle against impunity
requires a flexible strategy, considering more possible avenues of decision making. But let me also
add that the question which is now in front of us is an eminently legal question.
6. We trust ⎯ and we endeavoured to demonstrate ⎯ that this Court has no jurisdiction in
this case. We pointed out two major reasons, each of which is sufficient to support a conclusion of
lack of jurisdiction.
7. First, this Court has no jurisdiction because the Respondent was not a party to the Statute,
and had no access to the Court at the time when the Application was submitted. Hence, a
fundamental precondition to the exercise of its judicial function is missing. The Court was not
validly seised. Post factum developments may conceivably be considered by a judicial mechanism
which was properly put into motion. This was not the case here. The Court was not validly seised,
it did not acquire compétence de la compétence, which would have possibly allowed it to consider
new developments, and to decide on jurisdiction.
8. Second, this Court has no jurisdiction, because there is no basis for jurisdiction.
MadamPresident, the only basis for jurisdiction is consent. Speaking of the reality of consent,
Fitzmaurice came to the following conclusion: “To sum up ⎯ what is required, if injustice is not
to be done to one party or the other, is neither restricted nor liberal interpretations of jurisdictional
101
clauses, but strict proof of consent.” This appears to be the right standard. But even if one were
to adopt a liberal or extensive interpretation, no consent could be shown in our case. The
proposition of continuity could have yielded ju risdiction, but it was unequivocally rejected.
Rejection certainly does not create consent.
9. When the FRY accepted the proposition th at it can only become a party to treaties by
specific treaty action, it opted to be bound by the Genocide Convention ⎯ but it also opted not to
be bound by Article IX, which is the purported basis of consent, and hence, of jurisdiction in this
case. This was made clear and explicit in the r eservation, which is an integral part of the
notification of accession. It is a matter of public record that the FRY (now Serbia) is a party to the
10Fitzmaurice, “The Law and Procedure of the International Court of Justice, 1951-4: Questions of Jurisdiction,
Competence and Procedure,” 34 BYBIL, 1958, p. 88. - 62 -
Genocide Convention since March2001, with a reser vation to ArticleIX. Madam President, in
some cases, one can conceivably construe a less than clear acceptance as consent, but it is just not
possible to construe a denial of consent as consent.
10. In addition to our first preliminary objection, we have demonstrated that claims relating
to a period prior to 27April1992 are inadmissible, and the Court has no jurisdiction ratione
temporis regarding these claims. We have also de monstrated that one cannot possibly extend
claims prior to existence on the ground of Artic le10(2) of the ILC Articles, because the actual
circumstances simply cannot be fitted under Article 10. None of the requirements of Article 10 (2)
is met or matched by the actual facts.
11. In our third preliminary objection, we proved that the claims regarding submission to
trial of responsible persons, regarding missing pe rsons, and regarding cultural property, are both
inadmissible and beyond the jurisdiction of this Court.
The issue of consistency
12. Madam President, almost two decades have passed since the process of dissolution of the
former Yugoslavia began. This process was marked by heated controversies, and also by human
tragedies. There are practically no international authorities and no organizations that did not have
to take a position with regard to problems from c onflict in the former Yugoslavia. This honoured
Court is certainly no exception. For a considerable time period it was difficult to take positions,
because it was difficult to fit an unorthodox situat ion into patterns, because there was a bitter
conflict between the perceptions that were submitted, because clarifications were belated. It is
most understandable that the steps taken by various international authorities and organizations were
marked both by a striving for consistency, and by the difficulties in achieving consistency.
13. Speaking of consistency, trying to posit the 1996 Bosnia Judgment as a precedent, the
Applicant is relying on the aspiration for consis tency. Looking for some support for its position,
the Applicant puts emphasis on the Bosnia case, in which it was assumed in 1996 that the FRY was
a party to the Genocide Convention and had access to the Court. I would like to present arguments
showing that the decisions in the Bosnia case cannot be invoked as a precedent in any sense, and do
not support the contentions of the Applicant. - 63 -
14. In order to rely on a precedent, one obvi ously has to compare the exact issues which
were decided, with those issues which have to be decided in the case at Bar. If these issues do not
match, one has to distinguish a precedent, rather th an to rely on it. This was put in plain and
convincing words by JudgeShahabuddeen, in his monograph entitled Precedent in the World
Court. Commenting on the Certain Norwegian Loans Judgment, which was also a judgment on
jurisdiction, Shahabuddeen stresses: “Thus, one wa y of distinguishing a precedent is to show that,
although the decision might appear on the surface to be applicable, it was nevertheless one in
which the specific legal point was not the subject of consideration.” 102
15. Hence, in order to establish whether the holdings of the Bosnia Judgments support the
contentions of the Applicant in this case, one first has to take a closer look, and to identify what the
specific legal points raised in the Bosnia case were, and to compare them with the assertions
submitted by the Applicant in this case. The Applicant presented an impressive list of cases related
to the Bosnian conflict. A closer look will first re veal that the list of ca ses which deal with the
issues presented in this case, is actually much shorter than the list suggested by the Applicant. The
provisional measures cases only took a tentative pos ition on issues of access and jurisdiction. The
Revision case and the 2007 final Judgment did not open the issue of jurisdiction, they actually
refused to do so. So, this long list which was meant to be impressive is actually reduced to the
1996Judgment. Furthermore, it is not easy to compare the “legal points” considered in the
1996 case with the legal points formulated in our case ⎯ because no clear legal justification of the
basis of jurisdiction was offered by the Applicant in our case.
16. It is certain, however, that “automatic succession” or the qualification of the
1992declaration and Note as notification of succession were not what the 1996 Bosnia Judgment
established, and what the 2007 Bosnia Judgment took as res judicata. These legal points were “not
the subject of consideration” in the 1996 Bosnia Judgment on jurisdiction.
17. Let us now take a look at the issue of access. The issue of access was not raised at all in
the 1996 Bosnia Judgment. But let us take a further step, and let us ask whether the logic of the
assertions of the Applicant in this case was confirmed in any direct ⎯ or even indirect ⎯ way by
102
Shahabuddeen, M., Precedent in the World Court, (1996), Cambridge University Press, p. 119. - 64 -
the Bosnia case, or by the underlying assumption of the Bosnia case? The answer is again clearly
negative. One of the two main assertions of the Applicant in this case is reliance on Article 35 (2)
of the Statute. The 1996 Bosnia Judgment offers no support whatso ever for this proposition. The
second principal legal point is the “ Mavrommatis principle”, that is the assertion that although the
Respondent may not have been a party to the Statute and may not have had access to the Court at
the time when the Application was submitted, it beca me a party to the Statute at a later moment,
and this allows the Court to remedy the initial de ficiency. Was this legal point confirmed in the
Bosnia case? Is the Bosnia case a precedent in any sense? Certainly not.
18. Madam President, holding that although the Respondent was not a party to the Statute at
the time of the Application and assuming that th is can be remedied before a judgment on
jurisdiction was rendered, would certainly not be c onsistent, it would not be even compatible with
the logic of the 1996 Bosnia Judgment. In the 1996 Bosnia Judgment the issue of access was not
raised or discussed. It is possible to interpret the Bosnia Judgment as a judgment in which ⎯ in the
absence of contestation ⎯ it was assumed that the Respondent was a party to the Statute, and hence
it had access to the Court. But it is really beyond any logic or even imagination to interpret the
1996 Judgment as a judgment based on the proposition that, although the FRY was not a party to
the Statute when the Application was submitted, which is 20 March 1993, this deficiency was
remedied, because the FRY somehow became a party to the Statute between 1993 and 11 July 1996
when the Judgment on jurisdiction was rendered.
19. Madam President, let me put emph asis on another reason for which the 1996 Bosnia
Judgment cannot be a point of reliance or yardstic k of consistency. The assumptions which were
conceivable 12 years ago, are not conceivable anymore today. Consistency is also consistency with
what is known and accepted as true. What is known and accepted as true today is not the same
thing as 12years ago. It is common ground today that one may distinguish two periods in the
perception of the Yugoslav conflict. We have al ready referred to a pers uasive characterization
given by this Court in the 2004 Legality of Use of Force Judgments. In this assessment the Court
identified the first period as that between 1992 and 2000, and added:
“In fact, it is the view of the Court that the legal situation that obtained within
the United Nations during that eight-year pe riod concerning the status of the Federal
Republic of Yugoslavia, after the break- up of the Socialist Federal Republic of - 65 -
Yugoslavia, remained ambiguous and open to different assessments.” (Legality of Use
of Force (Serbia and Montenegro v. Belgiu103 Preliminary Objections, Judgment,
I.C.J. Reports 2004, p. 305, para. 64.)
20. Since that period, we have a new period of eight years behind us in which authoritative
determinations by competent organs of the United Nations were made, and a dependable perception
became accepted. In this new period, a consensus was reached that the FRY was not a party to the
United Nations and was not a party to the Statute prior to 1 November 2000, and consequences
have been drawn from these conclusions. In the Bosnia case, the Court had to take a position on
jurisdiction during the period of ambiguities. The Legality of Use of Force cases belong to the new
period in which the Court had the benefit of conclusive clarifications. Our present case ⎯ and all
decisions to be taken in this case ⎯ belong to this new period.
21. Consistency simply cannot be found between the allegations of the Applicant in this case
on one hand, and the Bosnia Judgments (or the underlying assumptions of the Bosnia Judgments)
on the other hand. There is no consistency in this direction. But consistency can, indeed, be found
in another direction.
22. Madam President, during the 1990s, one of the strongest priorities of the Yugoslav and
Croatian diplomacy were two confronted principles, two confronted perceptions of the dissolution
of the former Yugoslavia. The FRY asserted continuity, and spared no effort to emphasize this. It
failed to depart from the track of continuity ev en in the preliminary objections phase of the Bosnia
case, when this was to its own detriment, and when neither of the parties raised the critical issues,
or attempted to provide the Court with elucidations which were missing and needed at that time.
At the same time, Croatia insisted that there was no continuity, spared no effort in denying
continuity, and advanced, instead, the principle of five equal successors.
23. The principle asserted by the FRY did not yield more than some ambiguities and
postponements. The principle asserted by Croatia and the other successor States prevailed, and
became generally accepted. As we stated earlier, in its letter of 16 February 1994 addressed to the
Secretary-General in his capacity of depositary, Croatia criticized the FRY stating that it has
10Exactly the same text can be found in the other 2004 Legality of Use of ForceJudgments as well: in
paragraph63 of the cases with France, Canada, Italy, Neerlands, Portugal, and in paragraph62 of the cases with
Germany and the United Kingdom. - 66 -
“not acted according to rules of interna tional law and the... resolutions of the
Security Council and of the General Assembly. Moreover, it has ignored them and
tried to participate in international forums as a State party to treaties . . .”
on the ground of the assertion of continuity. Having rejected the claim to continuity, Croatia
concluded that if the FRY really wished to be a party to treaties as a new State, it should submit
notifications of succession, which “Croatia would fully respect” 10.
24. And this is what eventually the FRY did. It abandoned its reliance on continuity, which
did not yield membership in international organiza tions and did not yield the status of a party to
treaties. Instead, accepting the position of a new State, it applied for membership in the
UnitedNations and in internationa l organizations. After it was invited by the Legal Counsel to
“undertake treaty actions, as appropriate... if its intention is to assume the relevant legal rights
and obligations as a successor State” 105, the FRY undertook specific treaty actions by notifications
of succession or accession to each and every treaty to which the FRY wanted to be a party. The
question is now whether Croatia “would fully respect” this course of action (as it said it would do),
and whether it would accept the result of the percep tion that there was no continuity, that there are
five equal successor States, five new States. Lack of continuity means there is no continued
membership in international organizations, no continued status in treaties ⎯ but it also means that
the new State may choose whether it will or w ill not apply for membership in international
organizations, and whether it will succeed or accede to specific treaties. This applies to the
Genocide Convention as well. This also applies to hundreds of other treaty actions undertaken by
the FRY in 2001 which were duly accepted and re mained uncontested until now and which would
all of a sudden be posited as being without effect and purpose if one were to assume that the
1992 declaration somehow made the FRY a party to treaties.
25. Madam President, the principle asserte d among others by Croatia, which became
generally accepted, is the only possible foundation of consistency. There would be no consistency
however if one were to hold that this principle applies in all circumstances ⎯ except at one point
where this is inconvenient for Croatia.
10See letter dated 16 February 1994 from the Permanen t Representative of Croatia to the United Nations
addressed to the Secretary-General, United Nations doc. S/1994/198 (19 Feb. 1994) ⎯ cited in our Concluding Remarks
on 26 May 2008.
10Letter of the Legal Counsel of the United Nations addre ssed to the Minister for Fore ign Affairs of the Federal
Republic of Yugoslavia, dated 8 Dec. 2000, submitted as Ann. 23 of our Preliminary Objections. - 67 -
Madam President, distinguished Members of the Court, I have reached 1 o’clock and I have
maybe five minutes more at the most if you would allow me?
The PRESIDENT: Certainly.
Mr. VARADY: Thank you very much.
26. There has been a tragic sequence of Y ugoslav conflicts that have also reached the
attention of this Court as a legal confrontation between States. Within this sequence, the conflict in
Croatia was the first one to arise. It started in 1991. After 17 years, it is the only remaining one.
We believe that this sequence of confr ontations can be ended at this point ⎯ and this can be done
on a firm and convincing legal ground.
27. Madam President, this is a case in which the Respondent had no access to the Court at
the time of the institution of the proceedings, and hence, the Court was not properly seised. This is
a case in which the only alleged basis of jurisdiction is Article IX of the Genocide Convention, and
it is known that the Respondent acceded to the Convention with a reservation to Article IX. This is
a case in which a considerable number of claims relate to a period in which the Respondent simply
did not exist ⎯ and some claims relate to a period in which the Applicant did not exist either.
Again, a considerable number of claims are inadmissible, and also moot, due to the work of the
ICTY, due to the work of courts both in Serbia and in Croatia, and due to successful co-operative
efforts of the parties. This is also a case in which the only alleged basis of jurisdiction would direct
the scrutiny of the Court to genocide, yet during more than ten years of thorough work, the ICTY
has not found reason to issue any single indictment for genocide in connection with acts committed
during the conflict in Croatia. The time has come to conclude the sequence of legal confrontations
born out of the conflicts in the former Yugoslavia. There is no reason to continue it, and there is no
legal ground on which it could be continued. I am respectfully asking this Court to decline
jurisdiction in this case.
28. And now with your permission, I will submit our final submissions. For the reasons
given in its written submissions and its oral plead ings, Serbia requests the Court to adjudge and
declare, first, that the Court lacks jurisdiction, or in the alternative, second: - 68 -
(a) that claims based on acts and omissions which took place prior to 27 April 1992 are beyond the
jurisdiction of this Court and inadmissible, and
(b) that claims referring to submission to trial of cer tain persons within the jurisdiction of Serbia,
providing information regarding the whereabouts of missing Croatian citizens and return of
cultural property are beyond the jurisdiction of this Court and inadmissible.
Thank you very much for your kind attention.
The PRESIDENT: Thank you very much, Professor Varady.
This concludes the second round of Serbia and tomorrow morning the Court will meet at
10 o’clock to hear the second round submissions of Croatia.
The Court now rises.
The Court rose at 1.05 p.m.
___________
Audience publique tenue le jeudi 29 mai 2008, à 10 heures, au Palais de la Paix, sous la présidence de Mme Higgins, président, en l'affaire relative à l'Application de la convention pour la prévention et la répression du crime de génocide (Croatie c. Serbie)