Corrigé
Corrected
CR 2014/21
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2014
Public sitting
held on Friday21 March 2014, at 10 a.m., at the Peace Palace,
President Tomka 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 2014
Audience publique
tenue le vendredi21 mars 2014, à 10 heures, au Palais de la Paix,
sous la présidence de M. Tomka, 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: President Tomka
Vice-President Sepúlveda-Amor
Judges Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Gaja
Sebutinde
Bhandari
Judges ad hoc Vukas
Kreća
Registrar Couvreur
- 3 -
Présents : M. Tomka, président
M. Sepúlveda-Amor, vice-président
MM. Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Mmes Xue
Donoghue
M. Gaja
Mme Sebutinde
M. Bhandari, juges
MM. Vukas
Kreća, juges ad hoc
M. Couvreur, greffier
- 4 -
The Government of the Republic of Croatia is represented by:
Ms Vesna Crnić-Grotić, Professor of International Law, University of Rijeka,
as Agent;
H.E. Ms AndrejaMetelko-Zgombić, Ambassador, Director General for EU Law, International Law
and Consular Affairs, Ministry of Foreign and European Affairs, Zagreb,
Ms Jana Špero, Head of Sector, Ministry of Justice, Zagreb,
Mr. Davorin Lapaš, Professor of International Law, University of Zagreb,
as Co-Agents;
Mr. James Crawford, A.C., S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, Member of the Institut de droit international, Barrister, Matrix Chambers, London,
Mr. PhilippeSands, Q.C., Professor of Law, University College London, Barrister, Matrix
Chambers, London,
Mr. Mirjan R. Damaška, Sterling Professor Emeritus of Law and Professorial Lecturer in Law,
Yale Law School, New Haven,
Mr. Keir Starmer, Q.C., Barrister, Doughty Street Chambers, London,
Ms Maja Seršić, Professor of International Law, University of Zagreb,
Ms Kate Cook, Barrister, Matrix Chambers, London
Ms Anjolie Singh, Member of the Indian Bar, Delhi,
Ms Blinne Ní Ghrálaigh, Barrister, Matrix Chambers, London
as Counsel and Advocates;
Mr. Luka Mišetić, Attorney at Law, Law Offices of Luka Misetic, Chicago,
Ms Helen Law, Barrister, Matrix Chambers, London
Mr. Edward Craven, Barrister, Matrix Chambers, London,
as Counsel;
H.E. Mr. Orsat Miljenić, Minister of Justice of the Republic of Croatia,
H.E. Ms Vesela Mrđen Korać, Ambassador of the Republic of Croatia to the Kingdom of the
Netherlands, The Hague,
as Members of the Delegation; - 5 -
Le Gouvernement de la République de Croatie est représenté par :
Mme Vesna Crnić-Grotić, professeur de droit international à l’Université de Rijeka,
comme agent ;
S. Exc. Mme Andreja Metelko -Zgombić, ambassadeur, directeur général de la division de droit
communautaire et international et des affaires consulaires du ministère des affaires étrangères et
des affaires européennes,
Mme Jana Špero, chef de secteur au ministère de la justice,
M. Davorin Lapaš, professeur de droit international à l’Université de Zagreb,
comme coagents ;
M. James Crawford, A.C., S.C., F.B.A., professeur de droit international à l’Univers ité de
Cambridge, titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat,
Matrix Chambers (Londres),
M. Philippe Sands, Q.C., professeur de droit, University College de Londres, avocat,
Matrix Chambers (Londres),
M. Mirjan R. D amaška, professeur de droit émérite de l’Université de Yale (chaire Sterling),
chargé d’enseignement à l’Université de Yale,
M. Keir Starmer, Q.C., avocat, Doughty Street Chambers (Londres),
Mme Maja Seršić, professeur de droit international à l’Université de Zagreb,
Mme Kate Cook, avocat, Matrix Chambers (Londres),
Mme Anjolie Singh, membre du barreau indien (Delhi),
Mme Blinne Ní Ghrálaigh, avocat, Matrix Chambers (Londres),
comme conseils et avocats ;
M. Luka Mišetić, avocat, Law Offices of Luka Misetic (Chicago),
Mme Helen Law, avocat, Matrix Chambers (Londres),
M. Edward Craven, avocat, Matrix Chambers (Londres),
comme conseils ;
S. Exc. M. Orsat Miljenić, ministre de la justice de la République de Croatie,
S. Exc. Mme Vesela Mrđen Korać, ambassadeur de la République de Croatie auprès du Royaume
des Pays-Bas,
comme membres de la délégation ; - 6 -
Mr. Remi Reichhold, Administrative Assistant, Matrix Chambers, London,
Ms Ruth Kennedy, LL.M., Administrative Assistant, University College London,
as Advisers;
Ms Sanda Šimić Petrinjak, Head of Department, Ministry of Justice,
Ms Sedina Dubravčić, Head of Department, Ministry of Justice,
Ms Klaudia Sabljak, Ministry of Justice,
Ms Zrinka Salaj, Ministry of Justice,
Mr. Tomislav Boršić, Ministry of Justice,
Mr. Albert Graho, Ministry of Justice,
Mr. Nikica Barić, Croatian Institute of History, Zagreb,
Ms Maja Kovač, Head of Service, Ministry of Justice,
Ms Katherine O’Byrne, Doughty Street Chambers,
Mr. Rowan Nicholson, Associate, Lauterpacht Centre for International Law, Unive rsity of
Cambridge,
as Assistants;
Ms Victoria Taylor, International Mapping, Maryland,
as Technical Assistant.
The Government of the Republic of Serbia is represented by:
Mr. Saša Obradović, First Counsellor of the Embassy of the Republic of Serbia in the Kingdom of
the Netherlands, former Legal Adviser of the Ministry of Foreign Affairs,
as Agent;
Mr. William Schabas, O.C., M.R.I.A., Professor of International Law, Middlesex University
(London) and Professor of International Criminal Law and Human Rights, Leiden University,
Mr. AndreasZimmermann, LL.M. (Harvard), Professor of International Law, University of
Potsdam, Director of the Potsdam Centre of Human Rights, Member of the Permanent Court of
Arbitration,
Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Professor of International Law, University of
Glasgow, - 7 -
M. Remi Reichhold, assistant administratif, Matrix Chambers (Londres),
Mme Ruth Kennedy, LL.M., assistante administrative, University College de Londres,
comme conseillers ;
Mme Sanda Šimić Petrinjak, chef de département au ministère de la justice,
Mme Sedina Dubravčić, chef de département au ministère de la justice,
Mme Klaudia Sabljak, ministère de la justice,
Mme Zrinka Salaj, ministère de la justice,
M. Tomislav Boršić, ministère de la justice,
M. Albert Graho, ministère de la justice,
M. Nikica Barić, Institut croate d’histoire (Zagreb),
Mme Maja Kovač, chef de département au ministère de la justice,
Mme Katherine O’Byrne, Doughty Street Chambers,
M. Rowan Nicholson, Associate au Lauterpacht Center for International Law de l’Université de
Cambridge,
comme assistants ;
Mme Victoria Taylor, International Mapping (Maryland),
comme assistante technique.
Le Gouvernement de la République de Serbie est représenté par :
M. Saša Obradović, premier conseiller à l’ambassade de la République de Serbie au Royaume des
Pays-Bas, ancien conseiller juridique au ministère des affaires étrangères,
comme agent ;
M. William Schabas, O.C., membre de la Royal Irish Academy, professeur de droit international à
la Middlesex University (Londres) et professeur de droit pénal international et des droits de
l’homme à l’Université de Leyde,
M. Andreas Zimmermann, LL.M. (Université de Harvard), professeur de droit international à
l’Université de Potsdam, directeur du centre des droits de l’homme de l’Université de Potsdam,
membre de la Cour permanente d’arbitrage,
M. Christian J. Tams, LL.M., Ph.D. (Université de Cambridge), professeur de droit international à
l’Université de Glasgow, - 8 -
Mr. Wayne Jordash, Q.C., Barrister, Doughty Street Chambers, London, Partner at Global Rights
Compliance,
Mr. Novak Lukić, Attorney at Law, Belgrade, former President of the Association of the Defense
Counsel practising before the ICTY,
Mr. Dušan Ignjatović, LL.M. (Notre Dame), Attorney at Law, Belgrade,
as Counsel and Advocates;
H.E. Mr. Petar Vico, Ambassador of the Republic of Serbia to the Kingdom of the Netherlands,
Mr. Veljko Odalović, Secretary-General of the Government of the Republic of Serbia, President of
the Commission for Missing Persons,
as Members of the Delegation;
Ms Tatiana Bachvarova, LL.M . (London School of Economics and Political Science), LL.M.
(St. Kliment Ohridski), Ph.D. candidate (Middlesex University), Judge, Sofia District Court,
Bulgaria,
Mr. Svetislav Rabrenović, LL.M. (Michigan), Senior Adviser at the Office of the Prosecutor for
War Crimes of the Republic of Serbia,
Mr. Igor Olujić, Attorney at Law, Belgrade,
Mr. Marko Brkić, First Secretary at the Ministry of Foreign Affairs,
Mr. Relja Radović, LL.M. (Novi Sad), LL.M. (Leiden(candidate)),
Mr. Georgios Andriotis, LL.M. (Leiden),
as Advisers. - 9 -
M. Wayne Jordash, Q.C., avocat, Doughty Street Chambers (Londres), associé du cabinet Global
Rights Compliance,
M. Novak Lukić, avocat, Belgrade, ancien président de l’association des conseils de la défense
exerçant devant le TPIY,
M. Dušan Ignjatović, LL.M. (Université Notre Dame), avocat, Belgrade,
comme conseils et avocats ;
S. Exc. M. Petar Vico, ambassadeur de la République de Serbie auprès du Royaume des Pays-Bas,
M. Veljko Odalović, secrétaire général du Gouvernement de la République de Serbie, président de
la commission pour les personnes disparues,
comme membres de la délégation ;
Mme Tatiana Bachvarova, LL.M. (London School of Economics and Political Science),
LL.M. (Université St. Kliment Ohridski), doctorante (Middlesex U niversity); juge au tribunal
de district de Sofia (Bulgarie),
M. Svetislav Rabrenović, LL.M. (Université du Michigan), conseiller principal au bureau du
procureur pour les crimes de guerre de la République de Serbie,
M. Igor Olujić, avocat, Belgrade,
M. Marko Brkić, premier secrétaire au ministère des affaires étrangères,
M. Relja Radović, LL.M. (Université de Novi Sad), LL.M. (Université de Leyde (en cours)),
M. Georgios Andriotis, LL.M. (Université de Leyde),
comme conseillers. - 10 -
The PRESIDENT: Good morning. Please be seated. The sitting is open and I invite
Professor Crawford to continue in his pleading which he started yesterday. You have the floor, Sir.
Mr. CRAWFORD: Thank you, Mr. President. Yesterday I outlined our real case in relation
to the temporal aspects of the Convention and illustrated some of the difficulties of Serbia’s case.
12. I turn now to the arguments Serbia has raised that the Convention is incapable of having
effect befor e its entry into force for the P arties to this case, even in th e situation of gradual
dissolution. In doing so it is necessary to distinguish between the application of the Conventi on as
such that is, its substantive provisions and the application of the dispute settlement provision,
Article IX.
(1) The substantive application of the Genocide Convention
13. I t urn to the substantive application of the Convention. This is the f irst and most
important question at stake since, as I will demonstrate, if the Convention applied substantively for
that date in relation to the Parties, there is very little difficulty in applying Article IX.
14. Professor Zimmermann claimed that you have already decided, at the preliminary
objections stage, that Serbia “only” became bound by the Convention “ as of April 1992 ” 1. The
word “only” was an addition by Professor Zimmermann. Of course, if you had said “only” that
would have ended the question. But you did not. You decided that Serbia became bound by the
2
Convention “from that date onwards” , but you expressly left open, for consideration at the merits
stage, the question of “the applicability of the obligations under the Genocide Convention to the
FRY before 27 April 1992” 3.
15. Turning to that question, let me first analyse the position that the FRY itself took at the
time. [ Screen on] The best evidence is its own Declaration of 27 April 1992 in which it said as
follows:
1
CR 2014/14, p. 14, para. 26 (Zimmermann).
2Croatia, p. 454, para. 117.
3
Croatia, p. 460, para. 129. - 11 -
“The Federal Republic of Yugoslavia, continuing the state, international legal
and political personality of the Socialist Federal Republic of Yugoslavia, shall strictly
abide by all the commitments that the SFR of Yugoslavia assumed internationally.” 4
16. In its official note to the United Nations on the same date, it said: [Next slide]
“Strictly respecting the continuity of the international personality of
Yugoslavia, the Federal Republic of Yugoslavia shall continue to fulfil all the rights
conferred to, and obligations assumed by, the Socialist Federal Republic of
Yugoslavia in international relations, including its membership in all international
organizations and participation in international treaties ratified or acceded to by
Yugoslavia.” 5
Now it is true that in some respects that proclamation was falsified by events. But it was operative
at the time, and at the time Serbia relied on it and was accepted for various purposes including as a
litigant before this Court.
17. You previously concluded that the FRY was bound “in respect of all the multilateral
conventions to which the SFRY had been a party at the time of its dissolution” 6. But in fact the
two documents of April 1992 are framed in even wider terms. They refer to “all the . . . obligations
assumed by” the SFRY, “including its . . . participation in international treaties”. It is obvious that
the FRY itself took the position that the substantive obligations of the Genocide Convention, like
all other obligations assumed by the SFRY, continued to apply without any kind of temporal break.
The phrase “obligations . . . in international relations” is wide enough to cover secondary
obligations of responsibility, a matter to which I will return . This is the FRY. [Screen off]
18. Mr. President, Members of the Court, as a matter of principle, the continued substantive
application of the Genocide Convention should not be conditioned on proof of recognition or
acquiescence by a successor State. It is true that the Convention can be denounced every ten years
with six months’ notice under Article XIV. But no State has ever denounced it, and a successor
State should be presumed not to have done so, or to have performed acts having equivalent effect,
tacitly. In fact, at relevant times Serbia never expressed any attitude other than continuity : “all
the . . . obligations assumed by the Socialist Federal Republic of Yugoslavia in international
4
Joint Declaration of the SFRY Assembly, the National Assembly of the Republic of Serbia and the Assembly of
the Republic of Montenegro, 27 Apr. 1992, UN doc. A/46/915, Ann. II.
5Note to the United Nations addressed to the Secretary-General, 27 Apr. 1992, UN doc. A/46/915, Ann. I.
6
Croatia, pp. 454–455, para. 117. - 12 -
7
relations, including . . . participation in international treaties ratified or acceded to by Yugoslavia” .
It cannot be more explicit than that.
19. More fundamentally, however, the Genocide Convention is not just a promise by existing
States to do or not to do something; it is a recognition by the international community of States as
a whole that genocide is not only a crime of individuals but a lso a fundamentally illegal act by
whomever committed. You saw this point in Bosnia, when you implied into the Convention an
8
obligation of States not themselves to comm it genocide . On this basis, Serbians, including
Serbian officials, could not have been freed to commit genocide contrary to the Convention merely
because of some equivocation as to its continued application. But there was no such equivocation.
20. But the point is more fundamental still, another layer. The international community of
States is not a numerus clausus. It is not limited to the States that happen to exist at a given time .
When the international community of States in the white heat of a post-Holocaust world at
the same time defines and declares certain conduct to be already crim inal, contrary to the moral
law how often has the General Assembly referred to the moral law? it is not for th is Court
I say this with all due respect to act as a moral sceptic. The object and purpose of the
Convention is too important for that . For example, would Srebrenica have been lawful under the
Convention, or not unlawful, if it had happened earlier, before Bosnia and Herzegovina had been
established or admitted to the United Nations ? Could this Court really incite the Miloševićes of
this world to early genocidal action, in the context of dissolving States? Perish the thought, as we
look around the world today.
(2) The application of Article IX of the Genocide Convention
21. I turn then to the application of Article IX of the Convention. On the assumption that the
substantive provisions of the Convention were in force for all public and private entities located in
the SFRY in 1991 and early 1992 and who can gainsay that? the argument that Article IX
should be interpreted as applying to acts of responsibility then arising is a straightforward one. The
only temporal requirement expressed in Article IX is that there be a dispute “between the
7Note to the United Nations addressed to the Secretary-General, 27 Apr. 1992, UN doc. A/46/915, Ann. I.
8Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Preliminary Objections, I.C.J. Reports 1996 (II), p. 616, para. 32. - 13 -
Contracting Parties relating to the interp retation, application or fulfilment” of the Convention. The
natural interpretation of these words is that they impose two and only two requirements : the
dispute should at the time of its submission to the Court be a dispute between Contracting Parties,
and the dispute should meet the description in Article IX. There is no warrant for reading into
Article IX additional requirements such as that the applicant State must have been in existence as
such at the time the genocide was committed . Serbian counsel relied on a dictum of
Judge Fitzmaurice in Northern Cameroons as authority for that proposition 9, but the Court decided
10
the case on quite different grounds . On the Fitzmaurice view a State could not complain of
events directly affecting it prior to its creation the genocide of its own people during the struggle
for independence, for example . Such a finding would be entirely gratuitous, and it would be
11
contrary to your decision in the Phosphate Lands in Nauru case the first time I stood at this
Bar, I might say. The “tabulated legalism” of a Fitzmaurice is a fundamentally unsatisfactory way
12
of looking at obligations erga omnes , as you effectively admitted in Barcelona Traction an
admission made at the first opportunity after the Fitzmaurice -inspired debacle of second
13
South-West Africa .
22. I was criticized by counsel for citing Mavrommatis for the principle that “in cases of
doubt, jurisdiction based on an international agreement embraces all disputes referred to [the Court]
after its establishment” 1. You were told that the case depended on the words of the specific treaty
15
in question and did not stand for any general proposition . But the principle is well -established
and is not unique to Mavrommatis . I might have taken you, for example, to P hosphates in
Morocco, where the Permanent Court found that a limitation ratione temporis had been inserted
9
Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1963;
separate opinion of Judge Sir Gerald Fitzmaurice, p. 129.
10Northern Cameroons , p. 32, analysed in J . Crawford, The Creation of States in International Law , 2nd ed.,
2006, pp. 584–585, 596–597.
11Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objec tions, Judgment, I.C.J. Reports
1992, p. 240.
12Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J.
Reports 1970, p. 32.
13
South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment, I.C.J. Reports
1966, p. 47.
14
CR 2014/14, p. 36, paras. 51–52 (Tams), referring to Mavrommatis Palestine Concessions, Judgment No. 2,
1924, P.C.I.J., Series A, No. 2, p. 35.
15CR 2014/14, p. 36, para. 53 (Tams). - 14 -
into a treaty “with the object of depriving the acceptance of the compulsory jurisdiction of any
16
retroactive effects” . In other words, it was assum ed by the Court that it would have had
jurisdiction but for a limitation on jurisdiction expressly inserted into the relevant text.
23. I previously observed that the principle is recognized in the literature, for example by no
lesser authority than Rosen ne 17. Paul Tavernier, citing both Mavrommatis and Phosphates in
Morocco, puts it thus: “une limitation ratione temporis devra être expressément prévue dans l’acte
attributive de compétence et elle sera interprétée restrictivement” 18. He adds: “ [l]’arrêt
Mavrommatis a donc énoncé une règle juste à notre avis, car il faut bien distinguer les problèmes
de fond des problèmes de procédure” 19, in which he includes jurisdiction; problems of substance
must be distinguished from problems of procedure. There is no contradiction between this
principle and the principle of non -retroactivity recognized in Article 28 of the Vienna Convention.
Under Article 36, paragraphs 2 to 3, of the Statute of the Court, a State can accept your jurisdiction
compulsorily, and can do so “unconditionally or on condition of reciprocity . . . or for a certain
time”. There is no inference of non- retroactivity of the scope of any obligation to accept the
Court’s jurisdiction when the title of jurisdiction is silent on the point 20.
21
24. Professor Tams then told you that the principle no longer applies . That is not so. The
Mavrommatis principle finds expression in your decision in Bosnia that “the Genocide
Convention and in particular Article IX does not contain any clause the object o r effect of
which is to limit in such manner the scope of its jurisdiction ratione temporis”, and you held that
you had jurisdiction to give effect to Article IX “with regard to the relevant facts which have
occurred since the beginning of the conflict which took place in Bosnia and Herzegovina”, and that
that was “in accordance with the object and purpose of the Convention as defined by the Court in
16
Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 24.
17S. Rosenne, The Law and Pract ice of the International Court 1920– 2005, Vol. II (Jurisdiction), 4th ed., Brill,
2006, pp. 915 ff., cited in CR 2014/12, p. 47, para. 28 (Crawford).
18P. Tavernier, Recherches sur l’application dans le temps des actes et des règles en droit internationublic,
Paris: LGDJ, 1970, pp. 217–218.
19Ibid., p. 218.
20
E. Bjorge, “Right for the wrong reasons: Šilih v Slovenia and jurisdiction ratione temporis in the European
Court of Human Rights”, The British Yearbook of International Law (BYIL) , 2013, Vol.83 115, pp. 123–124.
21CR 2014/14, pp. 36–37, para. 54 (Tams). - 15 -
22
1951” . This was despite Serbia’s arguments in that case based on non -retroactivity. Eirik Bjorge
has described Bosnia as “an application of the rule relating to jurisdictional clauses enunciated in
23
Mavrommatis” . True, you later clarified that you were not addressing whether the relevant facts
24
“included facts occurring prior to the coming into existence of t he FRY” . But it does not detract
from the general principle underlying your Bosnia decision and articulated in Mavrommatis : “in
cases of doubt, jurisdiction based on an international agreement embraces all disputes referred to
[you] after its establishment” 25. The principle applies here.
25. As proof that the Court has as he put it “overruled” Mavrommatis, Professor Tams
directed you to Georgiav. Russia 2. But that case did not deal with the point.
26. Professor Tams told you that Georgia “ [sought] to rely on facts pre -dating 1999”, the
time when it became bound by the Convention on the Elimination of Racial Discrimination
(CERD) 27. But the context of the passage he cited was quite specific. Russia had objected to
jurisdiction on the ground that “ there was no dispute between the parties regarding the
interpretation or application of CERD at the date Georgia filed its Application” 28. Now that
objection, if sustained, would have been fatal. In the passage cited, Georgia was invoking evidence
from before 1999, not to refute this objection directly, but in order to establish that the dispute was
“long-standing and legitimate and not of recent invention” 29. What you held is that Georgia had
not cited evidence from before 1999 establishing that point. You added that even if it had, that
“dispute, though about racial discrimination, could not have been a dispute with respect to the
interpretation or application of CERD, the only kind of dispute in respect of which the Court is
30
given jurisdiction” .
22
Bosnia, p. 617, para. 34.
2E. Bjorge, “Right for the wrong reasons: Šilih v Slovenia and jurisdiction ratione temporis in the European
Court of Human Rights”, BYIL, 2013, Vol. 83 115, p. 126.
2Croatia, p. 458, para. 123.
2Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 35.
26
CR 2014/14, p. 36, para. 54 (Tams).
27
CR 2014/14, p. 37, para. 54 (Tams).
2Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 81, para. 22.
2Georgia v. Russia, p. 86, para. 34 and p. 94, para. 50.
3Ibid., p. 100, para. 64. - 16 -
27. If Professor Tams had extracted from this passage a principle that States cannot be in
“dispute” under a treaty while it is not in force between them, that might have been arguable
although I have already said that in any case the declaratory character of the Genocide Convention
should lead to a different result. But he relies on the passage for a different proposition. He claims
that you made it “very clear” that “both parties had to be bound by CERD when the disputed
conduct took place and not, as Croatia argues, when the case was brought ” 31. But you did not
say that in Georgia v. Russia, or anything that could be construed to being to that effect. On the
contrary, you said at the beginning of your discussion that “[t]he dispute must in principle exi st at
32
the time the Application is submitted to the Court” . That is with respect, absolutely correct, and
that requirement is fulfilled here.
28. It is not in doubt that there was a “dispute” at the time Croatia filed its Application. Nor
can the distinction between treaty and customary international law take Serbia anywhere. Croatia
has referred to the customary prohibition of genocide to establish the object and purpose of the
Convention and the temporal scope of the substantive obligations contained in it. But Croatia’s
submission is that the Convention applies in this case. The passage from Georgia v . Russia about
the existence and characterization of the “dispute” at the time the Application was filed is irrelevant
to this question.
29. Russia made a separate objection in Georgia v. Russia that “any jurisdiction the Court
might have is limited ratione temporis to the events [that] occurred after the entry into force of
33
CERD as between the parties” . That objection is much more comparable to the p oint at issue
here. But you found that having upheld one of Russia’s objections, you were not required to
34
consider that further objection . So it is something of a stretch to present your argument as having
“overruled” Mavrommatis 35, on a point which you expressly and unambiguously declined to
consider.
31
CR 2014/14, p. 37, para. 55 (Tams).
32
Georgia v. Russia, p. 85, para. 30.
3Ibid., p. 81, para. 22.
34
Ibid., p. 140, para. 185.
35
CR 2014/14, p. 36, para. 54 (Tams). - 17 -
30. Georgia v. Russia was also cited for a further proposition. Professor Zimmermann on
this occasion appearing with Professor Tams, and not in parallel observed that the possibility of
automatic succession was not “even argued” or “even consider[ed]” in the case. He then concludes
36
that you “rejected” it . Mr. President, Members of the Court, if Georgia v. Russia is taken as an
authority against every proposition that was neither argued nor consider ed, you do not really have
to consider any more cases; the development of your jurisprudence is complete! But such an
argument would have the effect of crippling humanitarian treaties in relation to situations of
conflict and dissolution, and of doing so at a time of ethnic violence. I cannot believe that this
effect is desired, it is certainly not desirable: it would sideline the Court and would make it less
rather than more relevant in our unstable world.
31. The other case heavily relied on by Serbia was Belgium v. Senegal. They said I did not
refer to it, I think on at least five occasions. Several passages were cited. The first, once again,
deals with the analytically distinct question of whether there was a “dispute” at the time the
Application was filed 37. All you observe in this passage is that at the time Belgium filed its
Application, there was no dispute concerning a particular customary obligation that Senegal
38
allegedly breached, as distinct from obligations under the Convention against T orture . Serbia
cites this for the rather banal proposition that the issue of whether a customary obligation exists is
distinct from compliance with a treaty obligation. The passage has no other relevance for our case.
32. Professor Zimmermann told you that Belgium v. Senegal also supports the proposition
that Croatia has no standing to request the Court to rule on Serbia’s compliance with obligations
before Croatia came into existence 39. But again the passage has been quoted out of context. What
Senegal actually argued was that the obligation at issue “belongs to ‘the category of divisible erga
omnes obligations’, in that only the injured State could call for its breach to be sanctioned” 40. The
obligations in the Genocide Convention notably the obligation not to commit genocide are
36
CR 2014/14, pp. 20–21, para. 58 (Zimmermann).
37CR 2014/14, p. 16, para. 35 (Zimmermann).
38Questions relating to the Oblig ation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports
2012 (II), p. 445, para. 54.
39
CR 2014/14, pp. 66–67, paras. 91–95 (Zimmermann).
40
Belgium v. Senegal, p. 458, para. 103. - 18 -
not “divisible” erga omnes obligations. Genocide is not relative to any individual State it is
relevant, but not relative. Moreover, you went on to note that Belgium had standing from the date
it became party to the Co nvention, in 1999, and that it had invoked Senegal’s responsibility
41
“starting in the year 2000”, so again, it can hardly be said that you decided the point .
33. Finally, counsel referred you to Belgium v. Senegal for your analysis of the temporal
42
scope o f Article 7 (1) of the Convention against Torture . That provision requires State s to
prosecute or extradite certain offenders. Article 7 (1) is not about thecompromissory clause. It has
nothing to do with the presumption, in Mavrommatis, that jurisdic tion under a compromissory
clause embraces all disputes referred to the Court after its establishment. Secondly, you distinguish
the obligation to prosecute or extradite from the prohibition of torture used itself. You say that “the
prohibition of torture is part of customary international law and it has become a peremptory norm
(jus cogens)”. You say this apparently by way of contrast with the obligation to prosecute or
extradite which, you conclude by reference to Article 28 of the Vienna Convention, “ applies only
43
to facts having occurred after its entry into force for the State concerned” . Your discussion was
not directed to the temporal scope of the prohibition of torture per se.
34. So even taken at its highest, th e discussion in Belgium v. Senegal is relevant only to the
one specific jurisdictional issue: the temporal scope of substantive obligations a nalogous to the
obligation to prosecute or extradite under the Convention against Torture.
35. That analogy is not apposite here. We should lookat the approach of the European Court
of Human Rights, despite the well -established proposition that the Convention as such is only
prospective in effect. In Šilih v. Slovenia, the question was whether the Convention could apply to
facts occurring before Slovenia acceded to it . The obligation at issue was analogous to the
obligation to punish under the Genocide Convention, or the obligation to extradite under the
Torture Convention. [Screen on] The Court held:
41
Belgium v. Senegal, p. 458, para. 104.
42CR 2014/14, p. 16, paras. 36–38; p. 18, paras. 46–49 (Zimmerman); p. 25, para. 14, pp. 27–28, paras. 23–24,
p. 33, paras 38–40 (Tams).
43
Belgium v. Senegal, p. 457, para. 100. - 19 -
“that the procedural obligation to carry out an effective investigation under Article 2
has evolved into a separate and autonomous duty. Although it is triggered by the acts
concerning the substantive aspects of Article 2 it can give rise to a finding of a
separate and independent ‘interference’ within the meaning of the Blečič judgment . . .
In this sense it can be considered to be a detachable obligation arising out of Article 2
44
capable of binding the State even when the death took place before the critical date.”
That is in respect of a prospective Convention. [Screen off]
36. Let me leave analogies aside and quote Article I of the Genocide Convention: “The
Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is
a crime under international law which they undertake to prevent and to punish.” They confirm that
it is a crime; they undertake to punish it. General Assembly resolution 96 (I) similarly “affirm[ed]
45
that genocide is a crime under international law” . The confirmatory, declaratory expression of
the Convention, unique in this respect among modern treaties, the expression of a potent and
widely held moral outrage at past events, are powerful indications that the Convention lacks the
temporal limitations found in other treaties . This was not the case with CERD, which was at issue
in Georgia v. Russia. Nor was it the case with the Convention against Torture, at issue in
Belgium v. Senegal. Previous to the Convention against Torture a single act of State torture would
no doubt have been a breach of human rights, but it was only criminal under international law if it
was part of an attack on a civilian population, a crime against humanity or a war crime . It was
made per se unlawful in 1984. In terms, both treaties made new law . I have already emphasized
the different character of the Genocide Convention, which did purport to codify an existing crime.
Who at the time would have said that genocide as it had occurred was not a crime?
37. Another analogy with human rights law may also be helpf ul, even though the Genocide
Convention is sui generis . A potential time gap in the application of a multilateral human rights
46
treaty arose in a different context in Bijelić v. Montenegro and Serbia . At the time of the
application, Montenegro was in a c onstitutional union with Serbia 47. After its independence on
3 June 2006, the applicants indicated that they wished to proceed against both States. The potential
44
Šilih v. Slovenia, E uropean Court of H uman Rights (ECtHR), App lication No. 71463/01, Judgment
9 Apr. 2009.
45GA res 96 (I), 11 Dec. 1946.
46Bijelić v. Montenegro and Serbia, ECtHR, App. No. 11890/05, Judgment 28 Apr. 2009.
47
Croatia, pp. 422–423, paras. 27–34. - 20 -
time gap arose because it was not until 2007 that Montenegro joined the Council of Europe . The
Committee of Ministers of the Council of Europe decided, retroactively, that Montenegro could be
48
regarded as a party to the European Convention with effect from 6 June 2006 . The European
Court had regard to this and to “the principle that fundamental rights protected by international
human rights treaties should indeed belong to individuals living in the territory of the State party
concerned, notwithstanding its subsequent dissolution or succession” . It deemed the Convention
“as having continuously been in force in respect of Montenegro” as of the date in 2004 when the
FRY (Serbia and Montenegro) acceded to it 49.
38. The independence of Montenegro was, of course, very different from the earlier
dissolution of the SFRY and the gradual emergence on its territory of new States. You will recall
that Croatia has maintained these proceedings against Serbia as the continuator State and has not
50
instituted separate proceedings against Montenegro . But the Bijelić case illustrates the
importance of the continuity of human rights for the people living in a territory and we say it is
a fortiori for the Genocide Convention.
(3) Succession to responsibility
39. I turn to a third issue which is succession to responsibility. Serbia suggests that Croatia
should have framed its case as one of succession to responsibility 5. Croatia’s primary submission
in this respect is that the Court must look at the practical reality of the situation : during the events
of 1991 and early 1992, the SFRY simply was not functioning as a State, and to hold that only the
SFRY could have been responsible for conduct by the JNA would be a legal fiction. As
Judge Hudson stated in Lighthouses in Crete and Samos , “[a] juristic conception must not be
stretched to the breaking-point, and a ghost of a hollow sovereignty cannot be permitted to obscure
52
the realities” . The SFRY, by the end of 1991, was the ghost of a hollow sovereignty. In practical
terms, the JNA was by now plainly an organ of the nascent Serbian State. This was confirmed after
48Council of Europe doc. CM/Del/Dec (2006) 967/2.3aE, 16 June 2006.
49
Bijelić v. Montenegro and Serbia, ECtHR, App. No. 11890/05, Judgment 28 April 2009, para. 69.
50Croatia, p. 422, para. 30.
51CR 2014/14, p. 23, para. 6, p. 39, para. 62 (Tams); pp. 60–64, paras. 58–80 (Zimmermann).
52
Lighthouses in Crete and Samos (France v. Greece), Judgment, 1937, P.C.I.J., Series A/B, No. 71 ; separate
opinion of Judge Hudson, p. 127. - 21 -
27 April 1992, when it was effectively transformed into a de iure organ. But, i f th ese
submissions that is our principal case if these submissions are rejected if the Court were to
find that the SFRY, and only the SFRY, was responsible for conduct by the JNA during the
relevant period then a further finding of succession to responsibility is called for. We make that
submission in the alternative.
40. The point was also not decided at the preliminary objections stage 53. You found that
Serbia had succeeded to multilateral treaties to which the SFRY was a party, but you made no
finding about succession to responsibility.
41. In this regard w e can take some guidance from the Lighthouses arbitration. There, the
Cretan coastal service had exempted a Greek vessel from payment of light dues in breach of a
treaty. Greece was held responsible for this conduct, even though it occurred before Crete was
united with Greece in 1913. Among other relevant circumstances, the case had putatively been
brought to Greece’s attention, and Greece had kept the coastal service concession in force after its
succession to Crete. Note the parallel here with the JNA in practice, it was kept in service under
a new name after the proclamation of the FRY . Note also that Greece did not make an y express
declaration of succession to responsibility : such a declaration is evidently not required where
conduct is clear enough in itself . The tribunal held that Greece ’s responsibility could result “only
from a transmission of r esponsibility in accordance with the rules of customary law or the general
54
principles of law regulating the succession of States” . It recognized the sui generis character of
such situations, saying: “it is no less unjustifiable to admit the principle of transmission as a
general rule than to deny it” and that “the solution must depend on the particular circumstances of
55
each case” .
42. So let us look at the circumstances in this case. We say the rule of succession can occur
in particular circumstances if it is justified. There is no general rule of succession to responsibility
but there is no general rule against it either. Say that following the proclamation of the FRY on
27 April 1992, someone had asked President Milošević whether the new FRY was responsible for
53
CR 2014/14, pp. 60–61, paras. 58–67 (Zimmermann).
54Lighthouses arbitration (1956), Decision No. 23 International Law Reports (ILR), pp. 81, 90.
55
Ibid., 91–92. - 22 -
the conduct of the old SFRY. What would he have said? The answer is obvious and inescapable.
At that time, he rigorously maintained the claim of continuity with the SFRY. Consistent with this
claim, Milošević or any other official of the new FRY would unquestionably have said “yes,
the FRY is responsible in international law for all conduct attributable to the SFRY”. This
conclusion follows inexorably from the FRY’s conduct and statements around that time, in
particular from the declaration of 27 April 1992, and the related statement to the United Nations,
which reflected the position of the State.
43. The controversy about the status of the FRY between 1992 and 2000 has created some
confusion and, to put it mildly, was a source of so me difficulty for the Court. But in the last
analysis, whatever approach the Court takes, whatever effect the change of Serbian policy in
relation to the United Nations in 2000 had, the Serbian leadership and State apparatus should not be
granted impunity from international responsibility that they themselves and everyone else
believed that they had.
III. Jurisdiction over events after 27 April 1992,
including continuing breaches
44. Mr. President, Members of the Court, one final point on jurisdictio n. Serbia argued that
Croatia had “not referred to any events that took place after 27 April 1992 as allegedly constituting
genocidal acts” so that our case is “fully dependent . . . on a retroactive application of the Genocide
56
Convention” . In fact, Croatia’s written pleadings refer to many crimes, many wrongful acts
committed after 27 April 1992, as evidence of the continuing genocidal campaign against the
Croatian population. In May 1992, for example, Croat residents were forcibly exiled from Berak
57
and then forced to walk over a minefield . In February 1993, members of a Serbian paramilitary
group led by an active officer of what was then the de iure army of the FRY murdered Croats
in Puljane. As a result of the massacre, the remaining inhabitants of Puljane fled the following day.
58
The only punishment the murderers received was dismissal from their units . Between May 1992
and February 1993, Croat civilians were massacred in Medviđa and their killers released without
56
CR 2014/14, p. 11, paras. 6–7 (Zimmermann).
5Memorial of Croatia (MC), para. 4.38.
58
MC, para. 5.207. - 23 -
charge . Further examples are contained in the footnotes . In any event, it seems that Serbia has
changed its position: it conceded last week that at least eight alleged acts of genocide did occur
after 27 April 1992 61. So, in the further alternative, if the Court holds that the Convention was
applicable only from 27 April 1992, there are still acts you need to deal with. It does not let the
Court if I can say so with the greatest respect “off the hook”.
45. In any event, Serbia has a continuing responsibility for breaches of the Genocide
Convention. The failure to punish acts of genocide is ongoing irrespective of whether those acts
occurred before or after 27 April 1992. [Screen on] This is consistent with Article 14 (2) of the
Articles on State Responsibility, which provides:
“(2) The breach of an international obligation by an act of a State having a continuing
character extends over the entire pe riod during which the ac62continues and
remains not in conformity with the international obligation .”
46. You have heard from Professor Sands that the families whose loved ones have not been
accounted for the disappeared of Croatia continue to be sub jected to “serious . . . mental
harm” in breach of Article II of the Convention. The causing of such harm is widely recognized as
a violation “having a continuing character”. The U nited Nations Declaration on the Protection of
All Persons from Enforced Disappearance, states: “[a]cts constituting enforced disappearance shall
be considered a continuing offence as long as the perpetrators continue to conceal the fate and the
whereabouts of persons who have disappeared and these facts remain unclarified” 63. [Next slide]
This was confirmed by the Inter -American Court in one of its most important decisions,
Velázquez Rodríguez, where it says:
59MC, para. 5.220.
60MC, paras. 4.93 (May 1995), 5.27 (Sep. 1993), 5.145 (Nov. 1992 and early 1993), 5.210 (1993), 5.212 (various
dates between Aug. 1992 and 1996), 5.214 (July 1992), 5.221 (Jan. 1993), 5.223 (Jan. 1993), 5.225 (June to Dec. 1992);
Reply of Croatia (RC), paras 6.75 (1993), 6.89 (July 1992 and Jan. 1993).
61
CR 2014/15, p. 35, para. 7 (Lukić).
62
Articles on the Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law
Commission (YILC), 2001, Vol. II (2), Art. 14 (2):
“(2) La violation d’une obligation internationale par le fait de l’Etat ayant un caractère continu
s’étend sur toute la période durant laquelle le fait continue et reste non conforme à l’obligation
internationale.”
63UN Declaration on the Protection of All Persons from Enforced Disappearance, GA res 47/133, 18 Dec. 1992,
Art. 17. - 24 -
“The duty to investigate facts of this type continues as long as there is
uncertainty about the fate of the person who has disappeared. Even in the hypothetical
case that those individually responsible for crimes of this type cannot be legally
punished under certain circumstances, the State is obligated to use the means at its
disposal to inform the relatives of the fate of the victims and, if they have been killed,
64
the location of their remains.”
47. [Screen off] The same reasoning applies to Article II of the Genocide Convention, which
provides that the actus reus of genocide includes “[c]ausing serious bodily or ment al harm to
members of the group”. So again, Serbia is responsible for such continuing breaches of Article II
irrespective of its submission on jurisdiction over events before 27 April 1992.
IV. The statu nascendi principle
48. Mr. President, Members of the Court, that concludes my remarks on jurisdiction. I move
now to the question of attribution, beginning with the applicability of Article 10 (2) of the Articles
on State Responsibility. That may not have been famous before this case; it will be famous now.
49. Here Serbia repeated a number of arguments from its written pleadings which we
rebutted in the first round, without dealing with that rebuttal . For example, counsel for Serbia
65
repeatedly referred to what it called “movement responsibility” a rather curious phrase. But as
I said in the first round, Article 10 (2) is “not concerned with the responsibility of a movement qua
66
movement”, but with the responsibility of a “movement qua state in embryo” . Article 10 (2) is
not limited to substantive obligations that apply specifically to movements, whether or not they are
successful, such as obligations accepted by declar ation under Additional Protocol I of the Geneva
Conventions. It follows from this clear and straightforward proposition [which I w ill not argue
again in detail] that other relevant rules of attribution apply in much the same way as they
otherwise would in a situation where Article 10 (2) applies.
50. Mr. Lukić claimed that “there can be no equivalent to Article 8” in the context of
movement responsibility and that the ILC C ommentary “expressly excluded conduct of individual
67
members of the movement” . It did no such thing. A movement, like a State, can act only through
64
Velázquez Rodríguez, IACtHR, Ser. C, No. 4, Judgment 29 July 1988, para. 181.
65E.g., CR 2014/15, p. 37, paras. 18–20 (Lukić).
66CR 2014/12, pp. 42–43, paras. 14–15 (Crawford).
67
CR 2014/15, p. 37, para. 18 (Lukić). - 25 -
its officials or other human individuals ; it is not a mythologi cal creature with its own hands and
feet. The commentary cited states that Article 10 (2) covers “conduct of the movement as such and
not the individual acts of members of the movement, acting in their own capacity ” . Exactly the68
69
same proposition applies to Article 4 and to Article 7 . Members of the JNA were not acting “in
their own capacity”; they were acting in their capacity as members of the JNA, a de facto organ of
the nascent Serbian State. The usual principles of attribution apply.
51. Professor Tams argued that a movement under Article 10 (2) cannot be “aligned” to the
interests of the S tate against which it is fighting, yet said that I “emphasized the ‘alignment’
between the alleged Greater Serbia movement and the SFRY” 70. That is a distortion of what I said.
71
I used these words: “[t]he alignment of objectives between the JNA and the Serbian leadership” .
I then referred to the “contempt and disregard of the JNA command for the Constitution and the
72
SFRY Presidency” . I quoted a series of phrases about that contempt, about the transparent device
of using the JNA as a real Serbian organ rather than an apparent SFRY one. To none of those
quotations was there any response. What I said was the opposite of what Professor Tams claims.
The movement in question was led by Serbian political and military leaders in a joint criminal
enterprise so found whose objectives included a Greater Serbia. That was the movement .
And it certainly was aligned against the interests of the SFRY : it rendered t he SFRY Presidency
effectively impotent, it took de facto control of State organs such as the JNA, which it employed
for its own political and military objective s. It even attacked a building while the head of State and
head of government of the SFRY were inside; that is a curious form of alignment. Perhaps the
missile was aligned. Professor Tams advised you to “look at the map” for proof that this
movement did not “succeed” in establishing a Greater Serbia 73. Well, it eventually did not
succeed. Anyone who looked at a map between 1992 and 1995, when Serbian and Serb forces
68
Commentary to the Articles on the Responsibility of States for Internationally Wrongful Acts, YILC 2001/II (2),
Art. 10, p. 50, para. 4; emphasis added.
69
Articles on the Responsibility of States for Internationally Wrongful Acts, YILC 2001/II(2), Art. 7; emphasis
added.
70CR 2014/14, pp. 46–47, paras. 76–81 (Tams).
71CR 2014/5, p. 46, para. 10 (Crawford); emphasis added.
72
CR 2014/5, p. 46, para. 10 (Crawford).
73CR 2014/14, p. 48, para. 83 (Tams). - 26 -
occupied some one third of Croatia and more than two thirds of Bosnia-Herzegovina, would have
drawn a different conclusion . If the conduct was attributable in 1994 it did not cease to be
attributable later on because of the defeat of Serbian objectives. The fact is that the movement did
“succeed[] in establishing a new state”, even if it was not the State that Milošević wanted. Those
are the words of Article 10 (2); that is the on ly type of success required. It is a modified success,
but not everyone has their own State. The fact that it did not also achieve the full extent of its
74
territorial ambitions cannot relieve it of responsibility for what it actually did .
52. Serbia argued that S tate practice on Article 10 (2) is sparse, as if sparseness in itself
could justify the Court in departing from the principle 75. Yet Serbia has still not pointed to any
authority credibly denying the existence of the principle . Nor is it decisiv e that there is no exact
precedent for the sui generis situation now before this Court. As this Court knows only too well,
principles of international law must constantly be applied to newly arising situations, whether by
way of analogy or where a situati on falls squarely within a general principle that has previously
been applied to a range of other sui generis situations. An example is the conduct of the Polish
National Committee before the recognition of the new Polish State in 1919. This was cited du ring
the drafting of what is now Article 10 (2) in support of the proposition that, despite the sparseness
76
of State practice, the rule “seemed well-established” .
53. Another application of the rule to sui generis circumstances is the case of Algeria. The
movement in question, the FLN (Front de Libération Nationale) achieved independence for Algeria
in 1962. The Évian Accords between France and the provisional government included a
declaration that “Algeria assumes the obligation and benefits from the rights contracted in its name,
77
and those of Algerian public establishments by the competent French authorities” . Algeria
assumed the obligations and benefited from the rights contracted in its name by France. The
74
CR 2014/10, p. 42, para. 24 (Crawford).
75CR 2014/14, pp. 41–45, paras. 67–72 (Tams).
76YILC, 1998, Vol. I, 248, para. 50.
77
Déclaration de principes relative à la coopération économique et financière, 19 March 1962,[1962] JORF 3019,
Art. 18. - 27 -
situation was, in some respects, comparable to Serbia’s succession to the Genocide Convention,
78
consistent with its acceptance to be bound by all its international obligations .
54. Now it is true that Algeria never formally complied with this declaration with respect to
the actions of the FLN before its formal independence. But French courts, in a series of cases, have
79
interpreted it to apply to those actions . Patrick Dumberry observes of the Grillo case in 1999 that
it seems that “the Conseil d’Etat interpreted the internationally wrongful acts committed before the
80
independence of Algeria as those of the future state of Algeria” . That is the statu nascendi rule.
It is a necessary construction dealing with the fact that States do not come into existence in
situations of belligerency at a sing le moment in time. In the Perriquet case in 1995, t he Conseil
d’Etat was concerned with any potential French responsibility and so did not make an actual
finding against Algeria. But its view is expressed clearly enough. It observed that as a result of the
declaration, rights and obligations contracted by France in the name of Algeria had been transferred
to the Algerian State on independence. It then said: “l’indemnisation des dommages imputables à
des éléments insurrectionnels intéresse l’Etat algérien” 81.
55. I do not suggest , Mr. President, Members of the Court, that the present situation is
precisely the same as the ones I have dealt with the Polish National Committee, the FLN or
other previous situations where the principle recognized in Article 10 (2) has applied. It is not the
same, we can point to differences. But those past situations are further evidence that the assertion
that Article 10 (2) represents a new rule and is limited to movements of some very specific type
cannot be justified. This is a situation of the same general configuration, the same general principle
of attribution applies, and for the same reasons . As Patrick Dumberry, who studied this subject in
some detail, says “[t]he new state should remain responsible for acts which took place before its
independence because there is a ‘ structural’ and ‘organic’ continuity of the legal personality of
what was then a rebel movement” or, in this case, an “other” movement with all the relevant
78Croatia, pp. 454–455, para. 117.
79Hespel, Conseil d’Etat, 2/6 SSR, case No. 11092, 5 Dec. 1980, in Tables du Recueil Lebon; Perriquet, Conseil
d’Etat, case N o. 119737, 15 March 1995; Grillo, Conseil d’ Etat, case N o. 178498, 28 July 1999. See further
P. Dumberry, “New state responsibility for internationally wrongful acts by an insurrectional movement ” (2006) 17 EJIL
605, pp. 613-615 and other cases cited therein.
80
P. Dumberry, “New state responsibility for internationally wron gful acts by an insurrectional movement ”
(2006) 17 EJIL 605, p. 615, referring to Grillo, Conseil d’Etat, case No. 178498, 28 July 1999.
81
Perriquet, Conseil d’Etat, case No. 119737, 15 March 1995. - 28 -
82
characteristics that “has since successfully become a new independent state” . In our case the
“structural” and “organic” continuity between the Serbian military a nd political leadership and the
FRY was complete.
56. In this context, I should say a word, after all these years, about the work of the ILC on
attribution, notably Article 10. The fact that the actual language of Article 10 (2) was adopted on
Second Reading does not preclude it from being judged to be customary international law . The
ILC’s function is not simply to record pr actice and to adopt sparse articles where the practice is
sparse. Some of the ILC articles have been criticized for being sparse, but that is not a very good
reason for the sparseness. The ILC’s function is to rationalize the law and to expose its underl ying
structure and values for international scrutiny, not least scrutiny by this Court. Anyone looking at
the jurisprudence of continuity in contexts such as those covered by Article 10 will be struck by the
consistent tendency of courts and tribunals to maintain continuity. Lighthouses in Crete and Samos
and the Lighthouses arbitration are but two examples.
V. Other elements of the attribution of conduct to Serbia
57. Mr. President, Members of the Court, moving away from Article 10, paragraph 2,
perhaps slightly reluctantly, I should mention some other elements of Croatia’ s argument on
attribution. It may assist the Court if I summarize again the various grounds on which we say that
conduct is attributable to Serbia, since Serbia did not respond to all of our arguments and since it
accused us of attempting to sow confusion about which grounds applied 83.
58. First, Serbia ’s failure to prevent and failure to punish acts of genocide amount in
themselves to breaches of the Genocide Convention . In addition, Serbia ’s failure to assist with
locating disappeared persons constitutes a continuing breach of Article II. These breaches are
self-evidently attributable to Serbia.
59. Secondly, the facts, confirmed in numerous findings of the ICTY, demonstrate that the
JNA directly committed acts which we say amounted to genocide. That ultimate judgement of
characterization is for you, the acts themselves are established. It also ordered, facilitated, aided,
8P. Dumberry, “New state responsibility for internationalwrongful act s by an insurrectional movement”
(2006) 17 EJIL 605, 620.
8CR 2014/15, p. 52, paras. 6, 9 (Ignjatović). - 29 -
abetted and otherwise supported the commission of genocide by other Serb forces, of which the
JNA had actual knowledge. This includes acts by the forces of the self -proclaimed Serb entities in
Croatia and by Serb paramilitaries. In so far as the conduct of the JNA itself amounts to acts of
genocide or to complic ity in acts of genocide, all that we are required to establish is that the
conduct is attributable to Serbia. We have done this by reference, primarily, to Article 4 and to the
jurisprudence of this Court on when an entity can be treated as a de facto organ. The JNA was a
de facto organ of the emergent Serbian State. I have explained why these principles are capable of
applying in a situation where a State is in statu nascendi in the same way essentially as they apply
to other cases of State responsibility. Croatia also suggest s that conduct by the JNA may be
attributable to Serbia under Article 8, on direction and control . But the primary ground on which
we say it is attributable is Article 4.
84
60. Serbia’s refrain that the JNA was de iure an organ of the SFRY is simply irrelevant . Of
course it was de iure an organ of the SFRY. But I repeat the test you applied in Bosnia:
“persons, groups of persons or entities may, for purposes of international
responsibility, be equated with State organs even if that status does not follow from
internal law, provided that in fact the persons, groups or entities act in ‘ complete
85
dependence’ on the State, of which they are ultimately merely the instruments” .
Serbia responded to this by citing “animosity between K adijević and Milošević” and arguing that
“[n]either influence nor control could exist” in such a relationship 86. It also asserted that we had
87
provided no “evidence of direct orders” . Mr. President, Members of the Court, we are not
required to provide evidence of direct orders. States are responsible for genocide even if they keep
the orders tacit or silent. If the genocide is proved there is no need for a Wannsee conference. If
an entity can be equated with a State organ, the State is responsible for all conduct by that entity as
with any other conduct of the State 88. Whether the Serbian political and military leaders liked each
other or not is neither here nor there . They were party to a joint criminal enterprise whose
“common purpose . . . was the establishment of an ethnically Serb territory through the
84E.g., CR 2014/15, p. 40, para. 29 (Lukić).
85
Bosnia, para. 392.
86CR 2014/15, p. 41, para. 32 (Lukić).
87CR 2014/15, p. 39, para. 26 (Lukić).
88
Bosnia, para. 397. - 30 -
89
displacement of the Croat and other non-Serb population” that is from Martić. They were the
leaders of a movement with that objective, and the JNA was the army of that movement, in
complete depend ence on it . As Kadijević himself put it, “the Serb and Montenegrin people
considered the JNA as their army, in the same way that they considered the Yugoslav state their
country” and he saw the JNA ’s responsibility as being “to secure for the new Yugoslav ia [that is
the FRY] and the entire Serb population [entire Serb population wherever located] its own army” 90.
61. Let me illustrate where Serbia’s approach goes wrong. Mr. Lukić highlighted a comment
by the ICTY that the evidence did not establish that “ Mrkšić consulted his superiors in Belgrade”
about handing over prisoners of war from Vukovar to paramilitary and local SAO forces 91. It does
not matter whether he consulted “his superiors in Belgrade” or not. He was a colonel in the JNA.
Under Article 7, “[t]he conduct of an organ of a State or of a person or entity empowered to
exercise elements of governmental authority” is attributable to a S tate if it “ acts in that capacity ,
even if it exceeds its authority or contravenes instructions” 92. Even if Mrkšić had acted contrary to
instructions from Belgrade, which the Respondent would know and has not told us, the
responsibility would still exist. A more pertinent question is who the “superiors in Belgrade”
actually were. The ICTY tells us. It was not the President of the Presidency. By early 1991, the
JNA “had come to be typically perceived in Croatia as aligned with Serb interests and effectively
commanded from Belgrade by a Serb dominated leadership” 93. The ICTY later refers to “the Serb
94
controlled Federal government in Belgrade” .
62. You heard from Serbia that on 6 January 1992 Kadijević “relinquished the duty of the
95
Federal Secretary” and Milošević “became the absolute commander of the army” . Those are
Kadijević’s own words, in an interview quoted by Serbia. Of course, we have shown that the JNA
89Prosecutor v. Martić, IT-95-11, Trial Chamber Judgement, 12 June 2007, para. 445.
90V Kadijević, My View of the Collapse: An Army without a State , Belgrade, 1993, pp. 163–164; MC, Apps.,
Vol. 5, App. 4.1.
91
Prosecutor v. Mrkšić et al, IT-95-13, Trial Chamber Judg ement, 27 Sep. 2007, para. 586, cited in CR 2014/15,
p. 46, para. 49 (Lukić).
92
Articles on the Responsibility of States for Internationally Wrongful Acts, YI2001/II (2), Art. 7; emphasis
added.
93
Mrkšić, para 23.
94Mrkšić, para 471.
95General Kadijević, interview, 2007, http://www.novinar.de/2007/10/07/kadijevic -odbio-sam-vojni-puc.html,
quoted in CR 2014/15, p. 41, para. 33 (Lukić). - 31 -
was a de facto Serbian State organ even before that date . But from that date onwards , we have
direct confirmation from Kadijević that the JNA was following the orders of the Serbian political
leadership, of Milošević. That was months before the proclamation of the FRY. It conclusively
discredits Serbia’s assertion that the JNA continued to function as an organ of the SFRY until
27 April 1992. It belies any suggestion that the apparatus of the new Serb S tate sprang into being
instantaneously, like Athena from the head of Zeus to take a rather inappropriate example
without any period of gestation.
63. In reality, State dissolution and emergence are often gradual . It was the same with the
gradual transformation of the JNA from an organ of the old State into an organ of the new . We
were criticized for referring to the centralization of the command structure of the JNA in 1988 and
the subsequent Serbianization of its personnel. Those earlier events are relevant as the background
to the transformation, to explain how the Serbian military and political leadership was later able to
take effective control of the JNA . Serbia accepted that by late 1991 the JNA became an “active
participant” in the conflict in Croatia, though it argued that it was reactive rather than proactive:
these events “did not arise in a theoretical vacuum” 96. Croatia, of course, has disputed who was
reactive and who was proactive, who was defensive and who was not. But that is not the main
point. The main point is that the JNA was doing so as an instrument of Serbian political and
military policy and not as an organ of the SFRY, whose political institutions had been effectively
paralysed or taken over by Serbia. By late 1991 the JNA, under Ka dijević’s military leadership,
was already a de facto organ of the emergent Serbian State. After January 1992, Milošević was
directly exercising both military and political authority.
64. Finally, there is the third ground on which we argue that conduct is attributable to Serbia.
Conduct by other Serb forces breached the Convention directly . We do not maintain that the other
Serb forces were themselves organs of the emergent Serbian State with the sole exception of the
Territorial Defence of Serbia, w hich Serbia has accepted “should be equated to the actions of the
JNA and attributed to the JNA” 97. Croatia’s argument is that conduct by other Serb forces is
9CR 2014/15, p. 42, para. 38 (Lukić).
9CR 2014/16, p. 16, para. 83 (Ignjatović). - 32 -
attributable to Serbia under Article 8, since they operated under the instructions, direction or
control of the JNA.
65. Serbia’s attack on the Article 8 argument was self -defeating. It quoted the conclusion
drawn by the ICTY in Mrkšić that “what had been established as the de facto reality . . . in the Serb
military operations in Croatia, was the c omplete command and full control by the JNA of all
military operations” 98. It then showed you some of the evidence leading to that conclusion: the
Circular of the Chief of the General Staff and the Order of the Command of the 1st Military
District, both of October 1991. These documents in fact support the ICTY ’s conclusion 99. They
comprise “some of the evidence”, because the ICTY said they “serve to conf irm . . . what had been
established as the de facto reality”. The ICTY was satisfied of that on the basis of the totality of
the evidence before it . Mr. Ignjatović tried to transmogrify this conclusion into its opposite, but
without presenting any direct evidence that the principle of “complete command and full control by
the JNA of all military operation s” was not implemented . The ICTY expressly said it was
implemented, that it was the “de facto reality”. The Court lives in the real world.
VI. Conclusion
66. Mr. President, Members of the Court, I conclude where my submissions began: with the
danger, identified by Judge Shahabuddeen, that Serbia ’s arguments in the Bosnia case and
repeated here could “lead in one way or another” to an “inescapable time- gap” that would
undermine the object and purpose of the Genocide Convention, “ to safeguard the very existence of
certain human groups and . . . to confirm and endorse the most elementary principles of
100
morality” . That remains an apt description of where Serbia’ s arguments in this case would lead .
Serbia has quibbled with our arguments on attribution and jurisdiction, and I have shown that its
quibbling does not stand up to scrutiny . But Serbia has nothing at all to say on this fundamental
point. The word “continuity” did not pass its lips despite what it said on 27 April, on which it now
relies. However you choose to frame the legal issues in this case, Mr. President, Members of the
98
Prosecutor v. Mrkšić et al, IT-95-13, Trial Chamber Judgement, 27 Sep. 2007, para. 89.
9CR 2014/15, pp. 59–60, paras. 45–48 (Ignjatović).
100
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro) , Preliminary Objections, Judgment, I.C.J. Reports 1996 (II); separate opinion
of Judge Shahabuddeen, p. 635. - 33 -
Court, you cannot allow the Genocide Convention to sink into irrelevance in the circumstances of
State dissolution where it is most needed, to tremble and retreat befor e “a ghost of a hollow
101
sovereignty” .
67. Mr. President, Members of the Court, thank you for your attention. I ask you to call
upon the Agent.
The PRESIDENT: Thank you, Professor Crawford. I now call on the Agent of Croatia.
Madam, you have the floor.
Ms CRNIĆ-GROTIĆ: Good morning to you. Thank you, Mr. President, for allowing me
now to, first of all, reply to Judge Greenwood’s question on 20 March. He asked about the
unsigned witness statements that were attached to the Croatian Memorial. And t he question was:
“Would statements of that kind be admissible in proceedings in the courts of Croatia, and would
they have been admissible in such proceedings at the time that the statements were taken?” And
the answer provided by Croatia is as follows.
The criminal legal system in Croatia is, and was in the early 1990s, based on the C ivil Law
which affords a central role to the investigating judge. It therefore follows a very different
approach to the collection of evidence, including witness statement s, than that adopted by
international courts and tribunals, or indeed courts in common law jurisdictions.
Police witness statements or records taken from victims and witnesses are sent
together with the police file to the State Prosecutor and, if charges are laid, to the investigating
judge. There is no requirement that these police statements be signed by the victim or witness.
The investigating judge will then decide on the basis of the information before him or her,
including the police witness statements, what witnesses he or she wishes to interrogate. Following
such interrogation, formal statements are drawn up for each of the witnesses which are then
admissible in a court of law. As such, while the police statements are admitted into the court
process, and form the basis for the statements admitted in court, they are not themselves admissible
in court proceedings in Croatia, and the same applies to non-police statements.
10Lighthouses in Crete and Samos (France v. Greece), Judgment, 1937, P.C.I.J., Series A/B, No. 71; separate
opinion of Judge Hudson, p. 127. - 34 -
The unsigned police witness statements included in the Applicant’s Memorial, and addressed
by Judge Greenwood’s question, have been prepared in accordance with the Croatian Criminal
102
Procedure Code in force. They are part of the formal, initial stages of a criminal investigation as
carried out by the police authorities.
Croatia’s understanding is that procedures before international courts, including the ICTY
and the ICJ, follow a different procedure from that of national legal systems. Its case has been
prepared on the basis of the approach taken by such courts , in circumstances in which they do not
allocate a role for an investigating judge to gather evidence, including witness statements. In any
event, as you heard, the additional step has been taken for the purposes of these proceedings of
requiring witnesses to sig n confirmatory statements indicating that the content of the ir original
statement is true.
As highlighted by Ms Ní Ghrálaigh yesterday, this Court has accepted witness statements of
Croatia’s witnesses of fact without following the Croatian procedures 10.
Croatia would be pleased to respond to this question in greater detail, if that would be of
assistance to the Court. Thank you.
And now, if you will allow me, I will proceed with the closing remarks on behalf of Croatia.
The PRESIDENT: Please proceed,Madam Professor. You have the floor.
Ms CRNIĆ-GROTIĆ: Thank you.
C LOSING R EMARKS
1. Mr. President, Members of the Court, over the last few weeks Croatia addressed the events
and circumstances that caused us to come to this Court . We have presented you with evidence that
the Respondent is responsible for the crime of genocide against the Croats living in the area that
was intended to be a part of a Greater Serbia. We have also shown you, by contrast, that there was
no crime of genocide committed against the Serbs during or after Operation Storm in August 1995.
10Criminal Procedure Code of the Republic of Croatia (Official Gazette Nos. 53/91, 91/92), A142;le
Criminal Procedure Code of the Republic of Croatia (Official Gazette No. 110/97)177; Criminal Procedure
of Croatia (Official Gazette No. 152/08), Article 207.
103
Cite transcript. - 35 -
2. Croatia submitted its application in 1999, whenMr. Milošević was still in power in Serbia.
Even though he was removed from office in 2000, the change in government did not bring about a
change in attitudes regarding the events in Croatia, despite our initial hopes . Denial seems to be
the constant in the string of governments in Serbia resulting in continued and ongoing setbacks in
negotiations. We have witnessed similar denials in this courtroom over these last few weeks.
3. Over the years, since the filing of the A pplication, the case -law of the ICTY has
developed significantly. Through that development, Croatia ’s claims have been corroborated and
substantiated. A number of Serb perpetrators have been found guilty, and have been convicted for
the most egregious crimes committed against Croatia and it s citizens. The ICTY has found the
existence of a Joint Criminal Enterprise of the Serbian political and military leadership, which had
as its common purpose the establishment of an ethnically Serb territory through the displacement of
the non-Serb population that is a quote from the ICTY. It is true that nobody has ever been
charged with genocide and the Respondent seems to give great weight to that fact. It does not seem
to be as appreciative of the fact that nobody has ever been convicted by the ICT Y for any crime
against the Serbs in Croatia, let alone the crime of genocide that it claims. The reality is that the
ICTY judges have never been asked to consider that the events we have brought to this Court to
include acts of genocide. You are the first international court or tribunal to address these issues by
reference to the crime of genocide.
4. The case-law of the ICTY has also contributed greatly in establishing the facts regarding
what happened in the region. As this Court has put it, its fin dings are highly persuasive and the
Applicant has relied on them as part of its evidence . The ICTY has used extensive resources and
time to establish facts in cases that it has examined . However, as Croatia has explained, its
findings on the law and the legal characteri zation of the established crimes cannot serve to provide
answers for all the issues which arise before this Court . The ICTY deals exclusively with the
individual criminal responsibility of the accused. (Its view may be narrowly focused as it considers
only those crimes that are included in the indictments. ) The ICTY, unlike this Court, has no
jurisdiction over states.
5. The Applicant looks to this Court to take a more all -embracing view of the events from
1991 to 1995, to take them in t heir totality, and in the context of the political situation that - 36 -
prevailed at that time in the aftermath of the fall of the Berlin Wall and communism in Europe,
democratic elections in former communist states, and to take account of the new realities that some
were not ready to accept . We ask the Court to look into the “sui generis” situation in the specific
context of the disintegration of the SFRY and the emergence on its territory of five ne w States
amidst great violence and disorder . We ask the Court to see the role of extreme Serbian
nationalism for what it was a criminal attempt to create “one state for all Serbs” by pursuing the
project of Greater Serbia through genocidal acts, not only in Croatia but also in Bosnia and
Herzegovina and Kosovo.
6. As you will have seen for yourselves, there are still public officials and others in Serbia
who are unwilling to confront the truth about the events that began more than two decades ago.
For this reason the past remains present, and cannot be consigned to history. As we stated at the
beginning of these proceedings, they continue to resonate . The Court continues to have an
important role in addressing the facts and confirming, once and for all, that the requirements of the
1948 Convention have been met in relation to Croatia ’s application (and not met in relation to
Serbia’s counter-claim). The Applicant believes that the P arties to this case need the judgment of
this Court to close this chapter and to move forward in their mutual relations.
7. Croatia has moved forward. It is now a member of the European Union (EU), after
passing through the intensive scrutiny involved in applying for acc ession to the EU, with its
long-established democratic institutions, with the high degree of human rights protect ion, and with
the protection of its minorities, both at national and international level. Serbia apparently wants to
do the same, but this may prove to be difficult if it continues dow n its path of denials and of
refusing to confront realities. As I stat ed at the beginning of oral pleadings, Croatia wishes to
achieve full reconciliation with Serbia. We are neighbouring countries ; we have many ties
human, economic, cultural and others. But our relations are also burdened by Serbia ’s refusal to
confront its past and resolve the unresolved issues of the 1990s, including Serbia’s refusal to accept
the judgements of the ICTY and of this Court. We look to this Court for its assistance in handing
down a judgment that will assist our two States to address th e past and resolve the issues that
continue to divide us. - 37 -
8. There is an outstanding issue that is particularly painful this is the issue of missing
persons, who are missing because of genocidal acts in 1991- 1992. Almost 20 years after the
cessation of hostilities there are some 865 Croats missing from that period, with families and
friends looking for closure . There are a number of initiatives which aim at resolving their fate,
which I describe to the Court by way of replying to the second pa rt of th e question put by
Judge Cançado Trindade to the Parties on 14 March 2014. So, the question was:
“Have there been any recent initiatives to identify, and to clarify further the fate
of the disappeared persons still missing to date?”
9. In 1995, in Dayton, Croatia and Serbia concluded an agreement, the purpose of which was
104
to establish the fate of all missing persons and to release the prisoners . As a result of the
agreement, a joint commission was established , and some progress was made with respect to
missing persons:
(i) from August 1996 till 1998 Croatia w as given access to information, the so -called
protocols, for 1,063 persons who were buried at the Vukovar New Cemetery and these
protocols helped in the identification of 938 people;
(ii) in 2001, exhumations started with respect to unidentified bodies bu ried in the Republic of
Serbia (at marked gravesites). Thus far, the remains of 394 persons have been exhumed,
but it is regrettable that only 103 bodies have been handed over to the Republic ofCroatia;
(iii) to date only one mass grave has been discovered in Croatia, with 13 bodies, as a result of
information provided by Serbia. This was in 2013 in Sotin in Eastern Slavonia.
10. Whilst there has been some progress, there are a number of outs tanding issues that need
to be resolved. Recently, the Commission in Belgrade is, once again, seeking to act as
representative of all missing persons of Serb ethnicity, including those who are citizens of Croatia.
This is contrary to what was agreed in 19 95, when the parties decided that all missing persons who
disappeared in Croatia fell within the competence of Croatian authorities which, for their part,
recognized Serbia’s interest and role with regard to persons of Serbian ethnicity.
11. There are other outstanding issues. These include:
10Agreement on Co -operation in Finding Missing Persons in 1995. M. Granić–M. Milutinović, Dayton,
17 Nov. 1995. - 38 -
(i) our request for the return of documents seized by the JNA from the Vukovar hospital in
1991, which are essential for identification of the people removed from the hospital. They
are still not delivered. When the President of the Republic of Serbia, Boris Tadić, visited
Vukovar in November 2010, a small part of these documents was returned, following
which there has been no progress at all;
(ii) one of the outstanding issues is also t he provision of information on the locations of mass
graves and individual graves in the territory of the Republic of Croatia, as well as the
so-called “secondary“ graves, into which the bodies from primary mass and individual
graves were moved and also the issue of the unmarked graves in Serbia.
12. So, t he issue of the mis sing persons thus remains one of the key problems in these
proceedings. Croatia started a campaign , with the view to making more discoveries and to help
members of the families of the missing persons. As part of the campaign , public meetings are
organized in places where information might be available both for the missing Croats and the
Serbs. Leaflets and telephone lines are available, inviting people to provide information that would
lead to the discovery of these sites.
13. Mr. President, t here is no dispute between the P arties that serious crimes were
perpetrated against the members of the Croat ethnic group, capable of constituting the underlying
acts listed in the five paragraphs of Article II of the Convention including killings, causing serious
bodily and mental harm. The Respondent accepts that these acts were committed by members of
the JNA and forces associated with it . These acts were widespread and systematic. They caused
physical and mental harm, and resulted in killings and in the delibe rate infliction of conditions of
life calculated to bring about physical destruction of groups of ethnic Croats . Article I of the
Genocide Convention imposes two distinct yet connected positive obligations to prevent and to
punish genocide. We have set o ut why the Respondent has failed to meet its obligations on both
accounts.
14. Mr. President, genocide was committed on the territory of Croatia, by or on behalf of the
Respondent. The evidence on that is conclusive . The Respondent, acting through the J NA and
other organs of the State, is responsible under international law for those acts of genocide. It is also
responsible for having failed to prevent genocide from being committed against ethnic Croats. The - 39 -
Applicant has shown that the Respondent knew, or should have known, that there was a serious risk
that genocide would be committed or was being committed against Croats by paramilitaries . We
have given clear examples of that, during these proceedings. Moreover, the importance of the
obligation in Article I of the Genocide Convention, to punish acts of genocide , is reflected
throughout the Convention’ s provisions. In this case, the Respondent ha s failed to indict and
prosecute any of the high-profile military or political figures responsible for the crimes committed.
15. Furthermore, Croatia still demands the return of its cultural properties seized in the
course of the genocidal campaign in Croatia . Although some of it has been returned from 2001 to
2013, there are still almost 25,000 items from 45 museums and 1 ,000 cultural and religious
artefacts, as well as a number of private collections, archives and libraries.
16. Mr. President, Members of the Court, Croatia believes that this long -standing dispute
between the two States should be resolved in accordance with the requirements of the Genocide
Convention, and international law. This case has great importance for the Croatian people and for
the stability and peaceful co -existence in the region. The Court has a role to play, and we permit
ourselves to express the hope that it will fulfil its role as guardian of the Convention.
17. And now, this brings me to our concluding submissions . I limit myself today to the
submissions in relation to our c laim, and on Tuesday 1 April, I will read out the submissions in
relation to the counter-claim brought by Serbia.
SUBMISSIONS
So the submissions are as follows. O n the basis of the facts and legal arguments presented
by the Applicant, it respectfully requests the International Court of Justice to adjudge and declare:
1. That it has jurisdiction over all the claims raised by the Applicant, and there exists no bar to
admissibility in respect of any of them.
2. That the Respondent is responsible for violat ions of the Convention on the Prevention and
Punishment of the Crime of Genocide:
(a) in that persons for whose conduct it is responsible committed genocide on the territory of the
Republic of Croatia against members of the Croat ethnic group on that territory, by:
killing members of the group; - 40 -
causing deliberate bodily or mental harm to members of the group;
deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
imposing measures intended to prevent births within the group;
with the intent to destroy that group in whole or in part, contrary to Article II of the
Convention;
(b) in that persons for whose conduct it is responsible conspired to commit the acts of genocide
referred to in paragraph (a), were complicit in respect of those acts, attempted to commit
further such acts of genocide and incited others to commit such acts, contrary to Article III of
the Convention;
(c) in that, aware that the acts of genocide referred to in paragraph (a) were being or would be
committed, it failed to take any steps to prevent those acts, contrary to Article I of the
Convention;
(d) in that it has failed to bring to trial persons within its jurisdiction who are suspected on
probable grounds of involvement in the acts of genocide referred to in paragraph (a), or in the
other acts referred to in paragraph (b), and is thus in continuing breach of Articles I and IV of
the Convention;
(e) in that it has failed to conduct an effective investigation in to the fate of Croatian citizens who
are missing as a result of the genocidal acts referred to in paragraphs (a) and (b), and is thus in
continuing breach of Articles I and IV of the Convention.
3. That as a consequence of its responsibility for these breaches of the Convention, the
Respondent is under the following obligations:
(a) to take immediate and effective steps to submit to trial before the appropriate judicial authority,
those citizens or other persons within its jurisdiction including but not l imited to the leadership
of the JNA during the relevant time period who are suspected on probable grounds of having
committed acts of genocide as referred to in paragraph (1) (a), or any of the other acts referred
to in paragraph (1) (b), and to ensure tha t those persons, if convicted, are duly punished for
their crimes; - 41 -
(b) to provide forthwith to the Applicant all information within its possession or control as to the
whereabouts of Croatian citizens who are missing as a result of the genocidal acts for w hich it
is responsible, to investigate and generally to cooperate with the authorities of the Applicant to
jointly ascertain the whereabouts of the said missing persons or their remains;
(c) forthwith to return to the Applicant all remaining items of cultu ral property within its
jurisdiction or control which were seized in the course of the genocidal acts for which it is
responsible; and
(d) to make reparation to the Applicant, in its own right and as parens patriae for its citizens, for
all damage and other loss or harm to person or property or to the economy of Croatia caused by
the foregoing violations of international law, in a sum to be determined by the Court in a
subsequent phase of the proceedings in this case. The Applicant reserves the right to introduce
to the Court a precise evaluation of the damages caused by the acts for which the Respondent is
held responsible.
Thank you, Mr. President, Members of the Court.
The PRESIDENT: Thank you, Professor Crnić-Grotić. The Court takes note of the final
submissions which you have now read on behalf of Croatia on its own claims. The Court will meet
again on Thursday 27 March 2014, between 3.00 p.m. and 6.00 p.m. to hear Serbia begin the
presentation of its second round of oral argument. Thank you. The Court is adjourned.
The Court rose at 11.25 a.m.
___________
Audience publique tenue le vendredi 21 mars 2014, à 10 heures, au Palais de la Paix, sous la présidence de M. Tomka, président, en l’affaire relative à l’Application de la convention pour la prévention et la répression du crime de génocide (Croatie c. Serbie)