Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) - The Court finds Yugoslavian counter-claims admissible

INTERNATIONAL COURTOFJUSTICE
Peace Palace, 2517 KJ The Hague. Tel.(31·70·302 23 23). Cables: Intercourt, The Hague.

Telefax (31-70-364 99 28). Telex 32323. Internet address: http: Il www.icj-cij.org

Communiqué
unofficial
forimmediate release

No. 97/18

17 December 1997

Case concerning the Application of the Convention on the Prevention
and Punishment of the Crime of Genocide

(Bosnia and Herzegovina v. Yugoslavia)

The Court finds Yugoslavian counter-claims admissible

TIIE HAGUE, 17 December 1997. The International Court of Justice (ICJ) held tody that
counter·claims submitted by Yugoslavia are "admissible as such" and that theyrm part of the
current proceedings" in the case conceming Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia).

In its counter-claims (submitted on 22 July 1997 in its Counter-Memorial), Yugoslavia
requested the ICJ to adjudge thatosnia and Herzegovina is responsible for the acts of genocide
committed against the Serbs in Bosnia and Herzegovina" and that it "has the obligation to punish
the persons held responsible" for these acts. It also asked the Court rule that "Bosnia and

Herzegovina is bound to take necessary measures so that the said acts would not be repeated" and
"ta eliminate ali consequences of the violation" of the Genocide Convention.

This is the first time that the Court has ruled on the admissibility of counter-claims at a

preliminary stage. In the past theurt adjudicated twice on counter·claims (Asylum, Judgment,
195 0 and Rîghts oN ationals of the United States of America in Morocco, Judgment52)9but it
did so simultaneously with its final decision on the merits of the case.

Noting that its decisionno way prejudges whetherthe Yugoslavîan counter·claimsare weil

founded, the Court required the Parties to further present their views on their respective claims.
Bosnia and Herzegovina is to submit a Reply b23 January 1998 and Yugoslavia a Rejoinder by
23 July 1998.

Pursuant to the Rulesf the Court (Article 80), a counter-claim may be presented provided
that its direct!y connected with the subject-matter of the claim of the other party and that it cornes
within the jurisdiction of the Court.

On 28 July 1997, Bosnia and Herzegovina challenged the Yugoslavian counter-claims,

contending that they did not meet the criterionrticle 80. The Court consequently asked bath
Parties ta submit written observations on the issue. Having received these observations the Court
found that it was sufficiently infonned and that it was not necessary to hear the Parties otherwise.

In its Order, the Court specified that a counter-claim is "independent of the principal claim
in so far as it constitutes a separate 'claim"'and that its thrust is "to widen the original subject­
matter of the dispute by pursuing objectives other than the mere dismissal of the daim of the
Applicant". - 2 -

The Court found by 13 votes to 1 that Yugoslavian counter-claims are "admissible as such
and form part of the current proceedings" ·becausethey are "directly connected with the subject­

matter of Bosnia and Herzegovina'sclaims", that they "rest on facts of the same nature" and that
they constitute "separate claims seeking relief beyond the dismissal of the daims of Bosnia and
Herzegovina".

Judge ad hoc Kreéaappended a declaration to the Order. Judge Koroma and Judge ad hoc

Lauterpacht appended separate opinions. Vice-President Weeramantry appended a dissenting
opinion.

The operative paragraph of the Court's Order, summaries of the declaration and opinions of
Judges, the terms of the counter-claims of Yugoslavia and the daims of Bosnia and Herzegovina

as stated in its Memorial, may be found in an Annex to this press release (available on the Website
of the Court and by post on request).

History of the dispute

On 20 March 1993, Bosnia and Herzegovina filed an Application instituting proceedings
against Yugoslavia in respect of a dispute concerning alleged violations of the Convention on the
Prevention and Punishment of the Crime of Genocide of 9 December 1948. As the basis of the
jurisdiction of the Court, Bosnia and Herzegovina invoked Article IX of that Convention.

In its Application, Bosnia and Herzegovina, among ether claims, requested the Court to

adjudge and declare that Yugoslavia, through its agents and surrogates, "bas killed, murdered,
wounded, raped, robbed, tortured, kidnapped, illegally detained, and exterminated the citizens of
Bosnia and Herzegovina", that it has ta cease immediately this practice of so-called "ethnie
cleansing" and pay reparations.

On 20 March 1993Bosniaand Herzegovina also submittedarequest forprovisional measures
(an interim injunction). Hearings were held on 1 and 2 April 1993, and by an Order dated
8 April 1993 the Court·indicatedthat Yugoslavia "should immediately... take ali measures within
its power ta prevent commission of the crime of genocide" and that bath Yugoslavia and Bosnia
and Herzegovina "should not take any action ... which may aggravate or extend the existing
dispute". The Court limited its provisional measures to requests falling within the jurisdiction .,

conferred on it by the Genocide Convention.

On 27 July 1993 Bosnia and Herzegovina filed a second request for provisional measures,
followed on 10 August 1993 by a request for pravisional measures of Yugoslavia. Hearings were
held on 25 and 26 August 1993and by an Order dated 13September 1993 the Court reaffinned the
measures indicated earlier, adding that they should be immediatelyand effectively implemented.

A preliminary objection to the jurisdiction of the Court was theo raised by Yugoslavia.
Hearings taok place between 29 April and 3 May 1996 and on 11 July 1996 the Court delivered
a Judgment dismissing the objection and holding that it had jurisdiction to adjudge the dispute.

Website address of the Court: http://www.icj-cij.org

Information Office:

Mr. Arthur Witteveen, Secretary of the Court (tel: 31-70 302 2336)
Mrs. Laurence Blairan, Information Officer (tel: 31-70 302 233-7)·