Nori-Corrigé
Uncorrected
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
Public sitting
held on Monday 29 April 1996, at 10 &.m., at the Peace Palace,
President Bedjaoui presiding
in the case conceming the Application of the Convention on the
Prevention and Punishment of the Crime of Cenocide
(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)),
VERBATIM RECORD
Audience publique
tenue le ludi 29 avril 1996, à 10 heures, au Palais de la Paix,
8ous la présidence de M. Bedjaoui, Président
en l'affaire de l'Application de la convention pour la prévention
et la répression du crime de génocide
(Bosnie-Herzégovinec. Yougoslavie (Serbie et Monténégro))
COMPTE RENDUPresent : President Bedjaoui
Vice-President Schwebel
Judges Oda
Guillaume
Shahabuddeen
Weeramantry
Ranjeva
Herczegh
Shi
Koroma
~ereshchetin
Ferrari Bravo
Parra-Aranguren
Judges ad hoc Lauterpacht
KreCa
Registrar Vaïencia-OspinaPrésents : M. Bedjaoui, Président
M. Schwebel, Vice-Président
MM. Oda
Guillaume
Shahabuddeen
Weeramantry
Ranjeva
Herczegh
Shi
Koroma
Vereshchetin
Ferrari Bravo
Parra-Aranguren, juges
MM. Lauterpacht
Kreka, juges ad hoc
M. Valenria-Ospina, Greffier -4-
The Governent of Bosnia and Herzegovina is represented by:
H.E.Mr. Muhamed Sacirbey, Ambassador and Permanent Representativeof the
Republic of Bosnia and Herzegovina to the UnitedNations;
Mr. Phon van den Biesen Esq.;
Mr. Khawar M. Qureshi Esq.;
Mr. Marc Weller M.A.L.D.;
Mr. Alain Pellet;
Mr. Thomas M. Franck;
Mrs. Brigitte Stern.
The Goverament of Yugoslavia (Serbia and Montenegro) is represented by:
H.E. Mr. Rodoljub Etinski, Chief Legal Adviser in the Ministry of Foreign
Affairs of the Federal Republic of Yugoslavia and Professor of
International Law, Novi Sad University;
Mr. Djordje Lopicic, Chargé d'Affaires of the Embassy of the Federal
Republic of Yugoslavia, The Hague,
as Agents;
Mr. Ian Brownlie, C.B.E., F.B.A., Queen's Counsel, Chichele Professor of
Public InternationalLaw,
Mr. Miodrag Mitic, Assistant Federal Minister for Foreign Affairs of the
Federal Republic of Yugoslavia (Ret.),
Mr. Eric Suy, Professor in the CatholicUniversity of Leuven, formerly
Under-Secretary-Generaland Legal Counsel of the United Nations,
as Counsel and Advocates;
Mr. Stevan Djordjevic, Professor of International Law, Belgrade
University,
H.E. M. Shabtai Rosenne, Ambassador,
Mr. Gravro Perazic, Professor of International Law, Podgorica University,
as Counsel. -5-
Le Gouvernement de la Bosnie-Herzégovine est representé par :
S. Exc. M. Muhamed Sacirbey, ambassadeur et représentant permanent de la
République de Bosnie-Herzégovine auprès de l'Organisation des
Nations Unies;
M. Phon van den Biesen;
M. Khawar M. Qureshi;
M. Marc Weiler, M.A.L.D.;
M. Alain Pellet, professeur;
M. Thomas M. Franck, professeur;
Mme Brigitte Stern, professeur.
Le Gouvernement de la Yougoslavie (Serbie et Monténégro) est représentée
par :
M. Rodoljub Etinski, conseiller juridique principalau ministère des
affaires étrangères de la République fédérative de Yougoslavie(Serbie
et Monténégro), professeur de droit international à l'université de
Novi Sad,
M. Djordje Lopicic, chargé d'affaires à l'ambassade de la République
fédérative de Yougoslavie (Serbieet Monténégro) à La Haye,
comme agents;
M. Ian Brownlie, C.B.E.,F.B.A., Q.C., professeur de droit international
public, titulaire de la chaire Chichele à l'université d'Oxford,
M. Miodrag Mitic, ancien ministre adjoint des affaires étrangères de la
République fédérativede Yougoslavie (Serbieet Monténégro),
M. Eric Suy, professeur à l'Université catholique de Louvain (K.U.L.),
ancien Secrétaire général adjoint et conseiller juridique de
l'Organisation des Nations Unies,
comme conseils et avocats;
M. Stevan Djordjevic, professeur de droit international à l'université de
Belgrade,
M. Shabtai Rosenne, ambassadeur,
M. Gavro Perazic, professeur de droit international à l'université
Podgorica,
comme conseil S. - 6 -
Le PRESIDENT : Veuillez vous asseoir je vous prie. L'audience est
ouverte. La Cour est aujourd'hui réunie, conformément au paragraphe 4 de
l'article 79 de son Règlement, pour entendre les exposésorau des
Parties sur les exceptions préliminaires soulevées parla République
fédérative de Yougoslavie (Serbieet Monténégro) en l'affaire relative à
1'Applicationde la convention pour la prévention et la répression du
crime de génocide (Bosnie-Herzégovinec . Yougoslavie (Serbie et
Monténégro)l .
Deux membres de.la Cour, M. Fleischhauer et Mme Higgins, m'ont fait
savoir qu'ayant antérieurementconnu, en leur qualité, respectivement,de
conseiller juridiquedes Nations Unies et de membre du Comité des droits
de l'homme des Nations Unies, de certaines questions susceptibles d'être
pertinentes aux fins dela présente affaire, ils estimaient ne pas
pouvoir participer à celle-ci, conformément aux dispositions applicables
du Statut de la Cour. Je rappellerai par ailleursque la Cour ne
comptant pas sur le siège de juge de la nationalité des Parties, chacune
d'elles a fait usage du droit que lui confère le paragraphe 3 de
l'article 31 du Statut de désigner un juge ad hoc; ceux-ci ont été dûment
installés lors d'une phase antérieure de l'affaire.
L'instance a été introduite le 20 mars 1993 par le dépôt au Greffe de
la Cour d'une requête de la République de Bosnie-Herzégovine (queje
dénommerai ci-après,par commodité, la <<Bosnie-Herzégovine»c )ontre la
République fédérative de Yougoslavie (Serbie et Monténégro) (queje
dénommerai ci-après,par commodité, la «Yougoslavie») au sujet d'un
différend concernantd'une part une série de violations alléguées dela
convention pour la prévention et la répression du crime de génocide du
9 décembre 1948, que la Partie demanderesse impute à la Partie
défenderesse, et d'autre part diverses questionsqui, selon la Partie -7-
demanderesse, seraientliées à ces violations. La requête invoque comme
base de compétence l'article IX de la convention sur le génocide.
A la même date, la Bosnie-Herzégovinea présenté une demande en
indication de mesures conservatoires. Le 31 mars 1993, l'agent de la
Bosnie-Herzégovinea déposé au Greffe un document daté du 8 juin 1992
constituant, de l'avis de son gouvernement, une base de compétence de la
Cour s'ajoutant à celle indiquée dans la requête. Dans des observations
écrites présentées le ler avril 1993, la Yougoslavie a également
recommandé à la Cour d'indiquer des mesures conservatoires. Par une
ordonnance en date du 8 avril 1993, la Cour, après avoir entendu les
Parties, a indiqué certaines mesures conservatoires devant êtrp erises
par la Yougoslavie, et a indiqué en outre que les deuxParties devaient
ne prendre aucune mesure et veiller à ce qu'il n'en soit prise aucune,
qui soit de nature à aggraver ou étendre le différend existant surla
prévention et la répression du crime de génocide, ou à en rendre la
solution plus difficile
Le 27 juillet 1993, la Bosnie-Herzégovinea déposé une deuxième
demande en indication de mesuresconservatoires;et, par une série de
communicationsultérieures, elle a fait savoir qu'elle entendait modifier
ou compléter cette demande, ainsi que, dans certains cas, la requête (y
compris la basede compétence qui y était invoquée). Le 5 avril 1993, le
Président de la Cour a adressé un message aux deux Parties, conformément
au paragraphe 4 de l'article 74 du Règlement qui l'autorise à ce faire,
en attendant que la Cour se réunisse, et il a «invité les parties à agir
de manière que toute ordonnance de la Cour sur la demande en indication
de mesures conservatoires puisseavoir les effets voulus». Le
10 août 1993, la Yougoslavie a à son tour déposé une demande en
indication de mesures conservatoires. Par une ordonnance en date du -8-
13 septembre 1993, la Cour, après avoir entendu les Parties, a réaffirmé
les mesures indiquées dans son ordonnance du 8 avril 1993 et a déclaré
que ces mesures devaient être immédiatementet effectivement misesen
Œuvre.
Par une ordonnance du 16 avril 1993, le Président de la Cour avait
fixé au 15 octobre 1993 la date d'expiration du délai pour le dépôt du
mémoire de la Bosnie-Herzégovineet au 15 avril 1994 la date d'expiration
du délai pour le dépôt du contre-mémoirede la Yougoslavie. A la demande
de la Bosnie-Herzégovine,la date d'expiration du délai pour le dépôt du
mémoire a été reportée au 15 avril 1994, par une ordonnance du
Vice-Président en date du 7 octobre 1993; la date d'expiration du délai
pour le dépôt du contre-mémoirea été reportée, par la même ordonnance,
au 15 avril 1995. Le mémoire de la Bosnie-Herzégovinea été déposé dans
le délai ainsi prorogé. A la demande de l'agent de la Yougoslavie, la
date d'expiration du délai pour le dépôt du contre-mémoirea été reportée
au 30 juin 1995, par une ordonnance du Président endate du 21 mars 1995.
Dans le délai ainsi prorogé, la Yougoslavie a déposé certaines
exceptions préliminaires, ainsi que l'y autorise le paragraphe 1 de
l'article 79 du Règlement de la Cour. Les deux premières exceptions
présentées par le Gouvernement yougoslave portentsur la recevabilité de
la requête et les cinq dernières sur la compétence de la Cour pour
connaître de l'affaire. La procédure à suivre après le dépôt
d'exceptions préliminaires est régie par le paragraphe 3 de l'article 79
du Règlement; conformément à cette disposition, dès réception par le
Greffe de l'acte introductif de l'exception, la procédure sur le fond a
été suspendue et une procédure particulière devaitêtre organisée pour
permettre à la Cour d'examiner ces exceptions. Par une ordonnance en
date du 14 juillet 1995, le Président de la Cour a fixé au -9-
14 novembre 1995 la date d'expirationdu délai dans lequel la
Bosnie-Herzégovine pourrait présenterun exposé écrit contenant ses
observationset conclusions sur les exceptions préliminaires soulevées
par la Yougoslavie. Darisle délai ainsi fixé, la Bosnie-Herzégcvinea
déposé un tel exposé, au terme duquel elle prie la Cour :
«- de rejeter et écarter les exceptions préliminairesde la
Yougoslavie (Serbieet Monténégro) ; et
- de dire et juger :
i) que la Cour a compétence à l'égard des conclusions
présentées dans le mémoire de la Bosnie-Herzégovine;et
ii) que ces conclusionssont recevables».
Conformément auparagraphe 4 de l'article 79 du Règlement, il
appartient maintenant à la Cour d'entendre les Parties sur les questions
afférentes à sa compétence et à la recevabilitéde la requête. Je note
la présence à l'audience des agents des deux Parties. Aux fins de la
procédure orale sur les exceptionspréliminaires, il reviendra à l'agent
de la Yougoslavie de s'exprimer en premier.
Toutefois, avant de lui donner la parole, je dois annoncer que, après
s'être renseignée auprès des Parties, la Cour a décidé, conformément au
paragraphe 2 de l'article 53 de son Règlement, de rendre accessiblesau
public les pièces de procédureet documents y annexés déposés jusqulici
dans la présente instance.
Je donne maintenant la parole à M. Etinski, agent de la Yougoslavie
Mr. ETINSKI: Mr. President, distinguishedMembers of the Court, may
it please the Court, at the outset 1 would like to extend my
congratulationsto the InternationalCourt of Justice on the occasion of
its fiftieth anniversary. The nurnberof the cases before the Court has
increased considerably in the last decade. This fact provides telling - 10 -
evidence that the confidence of States in the Court has heightened and
that many States increasingly perceive it as the most reliable
institution availablefor dispute settlement. 1 am confident that the
Court will continue to contribute tothe strengthening of legality in
relations among States also in the future. It is my pleasure to be able
to state that a number of my countrymen participated in the work of the
Court. Messrs. Jovanovicand Novakovic were Deputy-Judges in the
Permanent Court of InternationalJustice and Mr. Zoricic served as a
judge to the International Courtof Justice.
1 should like also to congratulate the Members of the Court elected
after my appearance before theCourt in August 1993.
1 take this opportunity to reiterate ourrequest that the name of my
country be used properly. The Security Council resolutions£rom
November 1995 onwards refer to "the Federal Republicof Yugoslavia". The
appellation of the Federal Republicof Yugoslavia is also used in the
General Framework Agreement for Peacein Bosnia and Herzegovina, signed
in Paris on 14 December 1995. Accordingly, 1 see no reason whatsoever
why the Court shoulddepart from this practice. This rneansthat the
bracketed addition of "Serbia and Montenegro" should be left out. In any
case, 1 reserve the position of my country on this question. Mr.
President, the Federal Republic of Yugoslavia upholdsthe Preliminary
Objections submitted tothe Court in writing in June 1995. Nevertheless
some changes are necessary. The Court willbe aware, after the
successful conclusionof the Proximity Peace Talksin Wright-Patterson
Air Force Base in Dayton, Ohio, the General Framework Agreement for Peace
in Bosnia and Herzegovina was signed in Paris on 14 December 1995.
Eleven Annexes have been added to this Agreement, dealing with various
issues. The new Constitution of Bosnia and Herzegovina is contained in - Il -
Annex 4. According to Article 1 of this Constitution,Bosnia and
Herzegovina consistsof two Entities, the Republic ofSrpska and the
Federation of Bosnia and Herzegovina. This Constitution also provides
for the protection ofhuman rights and fundamental freedoms. In
addition, the Republic of Bosnia and Herzegovina, the Federation of
Bosnia and Herzegovina and the Republic of Srpska also concludedthe
Agreement on Human Rights, contained in Annex 6. This Agreement provides
for special mechanismsfor the protection of human rights and fundamental
freedoms.
In accordancewith Article X of the General Framework Agreementthe
two Parties have recognized each other. These developments have made
redundant some of the arguments presented within ourfourth Preliminary
Objection and we desist from the fourth PreliminaryObjection. The
mutual recognition in Paris on 14 December 1995 has raised the question
of whether a multilateral agreement is applicable to Parties that do not
recognize each other.
By the conclusion of the General Framework Agreement for Peace in
Bosnia and Herzegovina in Paris on 14 December 1995, the legal situation
has changed substantially. The Republic of Srpska has become one of the
two constituent entities of Bosnia and Herzegovina. Electionsand the
constitutionof new central organs areexpected to take place in which
the Republic of Srpska will also be represented. Bearingthat in mind, we
proposed by our Note sentto the Court on 30 January 1996 that this oral
hearing be postponed until that time when the conditions would have been
created for both entities of Bosnia and Herzegovina to be legitimately
representedbefore the Courtfor, in the existingconditions the Agent of
the Applicant can only have the mandate which is both highly contingent
and, in constitutionalterms, problematical. - 12 -
Mr. President, in its statement the Applicant presented some
unfounded contentions relatedto the merits of the case, and not to the
PreliminaryObjections. We consider that these transgress the bounds of
procedural propriety and plead with the Court not to consider them.
Mr. MitiC will present Our objection to the effect that Bosnia and
Herzegovina has not obtained independent Statehoodin conformity with the
principle of equality and self-determinationof peoples and that,
therefore, it could not succeedto the Genocide Convention. It is a rule
of general international lawthat a notification of succession to
treaties of a predecessor State is reserved for newly independent States
that obtain their independencein conformity with the principle of equal
rights and self-determinationof peoples.
The Applicant contends that the Constitution of the Socialist Federal
Republic of Yugoslavia £rom 1974 provided for the right of the Yugoslav
Republics to self-determinationand secession. Furthermore,the
Applicant contends that the secession of Bosnia andHerzegovina was
carried out in accordance with the constitutionalprovisions.
Alternatively, the Applicant considers that at the time of thesecession
of Bosnia and Herzegovina the SocialistFederal Republic of Yugoslavia
ceased to exist, i.e. that its central organsno longer functioned. None
of these contentions is correct. The Constitutionof the Socialist
Federal Republic of Yugoslavia from 1974 provided for no right of the
Yugoslav Republics to self-determinationand secession. It is true that
the introductory principle refersto the right of peoples to self-
determination and secession, but as a right on the basis of which the
pre-World War II Yugoslavia was rearrangedafter World WarII. As a
matter of fact, proceeding £rom that right, the unitary pre-World War II
Yugoslavia was transformed intoa federation. In any case, according to - 13 -
the said constitutionalprinciple, the subjects of the right were the
peoples, not the Republics, of the Socialist FederalRepublic of
Yugoslavia. It is a matter of public knowledge that three peoples live
in Bosnia and Herzegovina.
Al1 the decisions relatedto the secession of Bosnia and Herzegovina
were adopted by the outvoting of the representativesof the Serbian
people. At that time there existeda constitutionalmechanism, aimed at
preventing thiscourse of events. 1990 Amendment LXX, paragraph 10, to
the Constitution of Bosnia and Herzegovina of 1974 provided for the
setting up of the Council on the Questions of the Realization of the
Equality of the Peoples and Nationalities of Bosnia and Herzegovina. At
the request of at least 20 MPs of the Assembly of Bosnia and Herzegovina,
each question relevantto the equality of the peoples and nationalities
of Bosnia andHerzegovina was to be considered by the said Council before
a final decision was adopted by the Assembly. Decisionsin the Council
were to be taken by agreement of an equal number of representativesof
each people. Besides, a proposa1 resulting fromsuch a decision in the
Council was to be decided by a two-third majority in the Assembly.
However, notwithstandingthe said Amendment, this Council wasnever
established. It is strange indeed that the Applicant should contend that
the acts of secession were carriedout in accordance with the
constitutional provisionsof Bosnia andHerzegovina. Al1 relevant acts
of secession had been carried out by the end of May 1992.
In this connection, the Applicant refersto the Opinions of the
Badinter Commission. In many respects, the Opinions of this Commission
are problematic, to Say the least, and certainly legally non-binding. We
reject many positions of this Commission, in particular, the one to the
effect that the Socialist Federal Republicof Yugoslavia ceased to exist. - 14 -
Yet, even according to the Opinions of this Commission, the Socialist
Federal Republic of Yugoslavia did exist at the time when the acts of the
secession of Bosnia and Herzegovina werebeing carried out. The federal
organs were still functioning, admittedly in a changed composition, but
these changes had been brought about by the recall of the representatives
of the secessionistRepublics. We maintain that the secession of Bosnia
and Herzegovina was not in conformity with the principle of equal rights
and self-determinationof peoples. It was not so for two reasons: it
violated the territorial integrityof the Socialist FederalRepublic of
Yugoslavia and it breached the rights of the Serbian people in Bosnia and
Herzegovina. Mr.MitiC will speak on this matter in greater detail.
Considering the limited time available to me, 1 submit to present in
very short terms only the basic elements of our Preliminary Objections
that the other members of our delegation will present more exhaustively.
Our objection as to the overstepping of the competence of
Mr. Alija IzetbegoviC to authorize the filing of the Application will be
presented by the co-agent Mr. LopiCiC. This objection of ours is quite
simple. Bosnia and Herzegovinahad, and still shares, a collective
Head of State - the Presidency. The decision on the filing of the
Application should have been taken DY the Presidency. However, the
decision was not taken by the Presidency, but by the President of the
Presidency. He was not authorizedto take that decision; he was only
authorized to signeda decision to this effect by the Presidency. 1
maintain that this is not a technical problern,but a question of
substance. Mr. LopiEiE will speak on this rnatterin greater detail.
Professor Suy will present thearguments related to succession, aimed
at proving that the Genocide Conventionwas not operative between the
Parties in dispute, i.e. that it was not applicable to the Parties in - 15 -
dispute from 8 March 1992 even if the Court was to establish that Bosnia
and Herzegovina succeeded to the Genocide Convention. Professor Suy will
give an overview of the currentpractice and new opinions which
corroborateOur position that the rule of automatic successionas an
internationalcustom does not exist. Furthermore,Professor Suy will
explain the practice and theory accordingto which multilateraltreaties
are not applicable between Stateswhich do not recognize each other.
At the time referred to in the Application a civil war was being
fought in Bosnia and Herzegovina. The parties to the civil war were the
Muslim forces under the command of Mr. Alija IzetbegoviC, the armed
forces of the Republic of Srpska and the armed forces of the Croatian
Herceg-Bosna. Besides, the Muslim forcesunder the command of
Mr. Fikret AbdiC also took part in this civilstrife, fighting the Muslim
forces under the command of Mr. Alija Izetbegovic. The Federal Republic
of Yugoslavia tookno part in this civil war and did not have territorial
jurisdiction in Bosnia and Herzegovina. Bearingthis in mind, we can
conclude that there do not exist the necessary conditionsfor the
emergence of a dispute between the two Parties within the terms of
Article IX of the Genocide Convention. The arguments on these issues
will be presented by Mr. Brownlie.
And finally, 1 myself will address the question as to when the
Genocide Conventioncould be applicable betweenthe Parties if the Court
were to establish that Bosnia and Herzegovina succeeded to the Genocide
Convention and will then present the final submissions.
Mr. President,
1 now kindly cal1 on you to give the floor to Mr. Mitic
Thank you, Mr. President - 16 -
Mr. PRESIDENT: Thank you very much Your Excellency for your
introductory statement. i now give the floor to Mr. Miodrag Mitie.
Mr. MITIC: Thank you Mr. President. Mr. President, distinguished
Mernbersof the Court, may it please the Court. Allow me, Mr. President,
to proceed to thethird preliminary objection of the Federal Republic of
Yugoslavia. Without prejudice to Our contention that the entry of
multilateral treaties by notification of succession is reserved
exclusively for newly independent States born in the processof
decolonization, in Our third preliminary objection we maintain that the
Applicant could not succeed to the Genocide Convention because the
acquisition of its independent statehoodhad not been in conformity with
the principle of equal rights and self-determinationof peoples. The
Applicant replies
- that the right to secession was provided for by the Constitution of the
Socialist Federal Republicof Yugoslavia £rom 1974;
- that the secession was done in accordance witn the constitutional
regulations;
- i.e., that at the time of the secession of Bosnia and Herzegovina the
Socialist Federal Republicof Yugoslavia ceased to exist and that
Bosnia and Herzegovina had no other choicebut to declare independence.
None of these claims is accurate. Our third objection consists ofthe
following elements:
(1) there exists a rule of customary international law accordingto which
a new State cannot succeed to international treaties if the
establishment of its independent statehood was not in conformity with
the principle of equal rights and self-determinationof peoples; - 17 -
(2) the secession of Bosnia and Herzegovina was not in conformity with
the principle of equal rights and self-determinationof peoples;
(3) the denial of the rights of the Serbian people up until the signing
of the Generai Framework Agreement for Peace in Bosnia and
Herzegovina and the non-recognitionof the Republic of Srpska as one
of the entities of Bosnia and Herzegovina was not in conformity with
the principle of equal rights and self-determinationof peoples;
(4) the prernaturerecognition of Bosnia and Herzegovina was an act of
interferencein the interna1 affairs of the Socialist Federal
Republic of Yugoslavia, which was not inconformity with the
principle of equal rights and self-determinationof peoples; and
(5) therefore, the Republic of Bosnia and Herzegovina could notsucceed
to the Convention on the Preventionand Punishment of the Crimeof
Genocide
1. There exists the customary rule which makes the succession of a
new State to international treatiee conditional on the request that the
new State has achieved its independence in conformity with the principle
of equal rights and self-determination of peoples.
This international customevolved in the practice of decolonization
concerning thesuccession of States to international treaties. Al1 new
States that were born in the process of decolonizationbased their
independenceprecisely on the consistentapplication of the principle of
equal rights and self-determinationof peoples. And the practice of
succession constitutesone form of the realization of this principle
This customary rule was reflected in Article 6 of the Vienna Convention
on Succession of States in respect of Treaties which reads:
"The present Convention applies onlyto the effects of
succession of States occurring in conformity with international
law and, in particular, the principles of international law
embodied in the Charter of the United Nations." Let me quote here the words of Mr. Bedjaoui, speaking as a Mernberof
the InternationalLaw Commission:
"Article 6 merely stipulatesthat the draft applied only to
lawful succession, to the exclusion of any form of unlawful
succession. There was, therefore, no question of possible rights
and obligations of successor States whichhad effecteà a
territorial change to its own advantage in breach of
international law and, more especially, of the United Nations
Charter. The irregularityof the acquisition of a territory
would be in no way effaced if the successor State applied the
provisions of the draft. Hence it was not a matter of denying
rights or obligations to such a State, but of treating it as a
non-successor State." (YILC, 1974, Vol. 1, p. 79, para. 40.)
The Applicant does not deny the existence of this rule. On the
contrary, from paragraph 3.61 of the Statement (p. 79) it is clear that
the Applicant is agreed to the existence of this rule.
2. The secession of Bosnia and Herzegovina wae not in conformity with
the principle of equal rights and self-determination of peoples. The
Bosnia and Herzegovina lacked the capacity for self-determination.
This contention of ours contains four elernents:
2.1. The right to unilateral and violent secessiondid not exist in
the interna1 law of the Socialist Federal Republicof Yugoslavia;
2.2. The decision on secession was not taken in accordance with the
constitutional law in force at that time in Bosnia andHerzegovina:
2.3. The Socialist Federal Republic of Yugoslavia existed as a
subject of international law and its central organs functionedat the
time of the secession of Bosnia and Herzegovina;
2.4. The right to secession is contrary to the territorial integrity
of States which is an essential elementof the principle of equal rights
and self-determinationof peoples 2.1. The right of unilateral and violent eecession did not exist in
the interna1 law of the Social Federal Republic of Yugoslavia.
The contentionof the Applicant presentedin the Staternent,
(p. 49, para. 3.2) that "under the Constitution of the Socialist Federal
Republic of Yugoslavia, the Republic of Herzegovina was entitled to opt
for independentstatehoodn is wrong. The Applicantbases this contention
on certain provisions of the Constitutionof the Socialist Federal
Republic of Yugoslavia frorn 1974, but it interprets these provisions of
that constitutionerroneously. To begin with, the Applicant quotes the
following basic principle of the Constitutionof the Socialist Federal
Republic of Yugoslavia frorn 1974:
"The nations of Yugoslavia, proceeding£rom the right of
every nation to self-determination,including theright to
secession, on the basis of their will freely expressed in the
comrnonstruggle of al1 nations and nationalitiesin the national
Liberation War and Socialist Revolution, and in conformity with
their historic aspirations, aware that further consolidationof
their brotherhood and unityis in the cornrnoi nnterest, united,
together with the nationalities withwhich they live, in a
federal republic of free and equal nations and nationalities and
founded a socialist federalcornmunityof working people, the
Socialist FederalRepublic of Yugoslavia."
In the same paragraph of the Staternentthe Applicant refers to the
division of authority between the Federation and federal units under the
1974 Constitution and concludes: "The Republics always retain the right
to self-determination, including,in express terrns,'the.rightto
sece~sion'.~ This conclusion is wrong. The 1974 Constitution does not
provide for the right of the Republics to self-determinationand to
secession, but for the right of a people to self-determination. This is
the essential difference which is of particular importance preciselyin
the case of Bosnia andHerzegovina whichwas constituted as a Republic of
three equal peoples: Serbs, Muslims and Croats. Besides, the said basic
principle of the 1974 Constitution refersto the right of peoples to - 20 -
self-determination,including the right to secession, as the legal basis
on which the pre-World War II Yugoslavia was reorganized during World War
Two into a socialist and federalState. Accordingly, proceeding from the
said right, the Yugoslav peoples opted forthe said interna1 system. The
whole provision is written in the past tense. 1 have to remark here that
the translationof the quoted constitutionalprinciple into English is
incorrect. The Applicant used the presentperfect tense (have . . .
united . . . founded) erroneously. The original textof the Constitution
uses the tense which indicates that the verbalnotion expressed by that
tense refers to the past.
Nowhere in the Constitutionof 1974 is it provided that any of the
Yugoslav nations or Republics has the rightto secession, and that it
may, whenever it decides so, secede frornYugoslavia. It is true that by
the constitutional changesof 1974, the Yugoslav Federation was very
decentralized. However, this does not mean that the Republics becarne
States in the sense of international law. The changes that were carried
out in 1974 were inspired by the socialistic ideas of the socialization
of the State and of self-managementand not by an intention to transform
federal units into States in the international legalsense.
In an atternptto prove that the federal units were States, in
page 50, paragraph 3.2, of the Statement, the Applicant invokes Article 3
of the Constitution of the Socialist Federal Republic of Yugoslavia and
States: "States based on the sovereigntyof the people."
The Applicant quoted said Article 3 of the 1974 Federal Constitution
very stintingly indeed.
The entire text of Article 3 of the Federal Constitution of 1974
reads : "The Socialist Republicsare States based on the
sovereigntyof the people and the power of, and self-management
by, the working class and al1 working people, and are socialist,
self-managingdemocratic communitiesof the working people and
citizens, and of nations and nationalities having equal rights."
(TheApplicant presented thisprovision in Annex 3.3 to its
Statement.)
Accordingly, the constitutional definitionof the federal units -
socialist Republics - was much more complex than what is claimed by the
Applicant. The federal units which werecalled socialist Republicsand
were definedas States and self-managingdemocratic communitiesof the
working classand al1 the working people andcitizens, nations and
nationalitieshad no international legal attributes of statehood, i.e.,
treaty capacity, international representation, membership in
internationalorganizationsand others. Only the Federationpossessed
these attributes. Consequently, it is not possible to conclude on the
basis of this decentralizationthat the federal units had the rightto a
unilateral and violentsecession
The Amendments to the Constitutionof the Socialist Republicof
Bosnia and Herzegovina of 1990, referred to by the Applicant in paragraph
3.7 of the statement brought no substantial changesin this sense,
either. According to Amendment LX,
vSocialistRepublic of Bosnia and Herzegovina is a
democratic sovereign State of equal citizens, peoples of Bosnia
and Herzegovina - Muslims, Serbs and Croats and the other
peoples and nationalitieswho live in the Republic." (The
Applicant presentedthis provision in Annex 2.5 to the
Statement .
The Socialist Republicof Bosnia and Herzegovina did not becomea
State in the sense of international law asa result of this Amendment and
it was not given the right to secession. It will be seen later on that
not even the Badinter Commission considered thaA tmendment LX to the
Constitution of the Socialist Republicof Bosnia and Herzegovina £rom - 22 -
1990 could provide a basis for the declaration of the independent
statehood of Bosnia and Herzegovina. The best evidence is ArnendmentLXIX
from 1990 according to which:
"Politicalorganizations and actions designed to violently
overthrow of the ConstitutionalSystem, violate the territorial
integrity and independence of the Socialist Federal Republic of
Yugoslavia andthe sovereignty and territorial integrity of the
Socialist Republic of Bosnia and Herzegovina violate al1 rights
guaranteed by this Constitution and shall be prohibited." (The
Applicant presented this provision in Annex 2.5 to its
Statement) .
With the support of foreign elements, the Party of Democratic Action
and the Croatian Democratic Community did preciselywhat was prohibited
by this Amendment.
2.2. The decisions on secession were not taken in accordance with the
constitutional law in force at the time in Bosnia and Herzegovina:
In page 53, paragraph 3.9, of the Statement of the Applicant it is
said: "This does, however, obviously not preclude political change
achieved in accordance with theconstitution, in particular in accordance
with the explicit right to self-determinationand secession." There
existed no right to secession. Clear evidence to that effect is provided
by Amendment LXIX. Besides, the relevant decisions related to secession
were not taken in accordance with the constitutional law in force at the
time .
The adoption of the decision to hold a referendum was a gross
violation of the Constitution of the Socialist Republic of Bosnia and
Herzegovina. 1990 Amendment LXX, paragraph 10, to the Constitutionof
the Republic of Bosnia and Herzegovina providedfor the setting up of the
Council on the Questions of the Realization of the Equality of the
Peoples and Nationalities of Bosnia and~erzegovina. In Annex 2.5 to its
Statement, the Applicant presentedthe text of Amendment LXX,
paragraph 10. However, only a part of the text was presented. The most important partsof the text have beenomitted. In Our Annexes to
PreliminaryObjections, on page 814, we have presented a photostat copy
of Official Gazette No. 21 of the Socialist Republicof Bosnia and
Herzegovina of 31 July 1990 in which Amendment LXX was published. The
full text of paragraph 10 of Amendment LXX reads:
"The Council on the Questions of the Realization of the
Equality of the Peoples and Nationalities of Bosnia and
Herzegovina shall be set up in the Assembly of the Socialist
Republic of Bosnia and Herzegovina. As members of the Council
shall be elected, an even number of MPs from the ranks of the
members of the peoples of Bosnia and Herzegovina -Muslims,
Serbs and Croats, a corresponding numberof MPs from the ranks
of the members of other peoples and nationalitiesand others
living in Bosnia and Herzegovina. The Council shall decide on
the basis of agreement between the members from the ranks of al1
peoples and nationalities. The composition, scope and marner of
work of the Council shall be regulated by the law to be brought
by a two-third rnajorityof the overall number of MPs in the
Assembly of the Socialist Republic of Bosnia and Herzegovina.
The Council shall consider in particular the questions
related to: the equality of language and script; organization
and activities of cultural institutionshaving special
importance for the expression and affirmation of national
characteristicsof individual peoples and nationalitiesand the
adoption of rules and regulations ensuring the realization of
the constitutional provisions which expressly establish the
principles of equality of peoples and nationalities.
The Council shallnecessarily consider the question of the
equality of peoples and nationalities at the initiative of MPs
in the Assembly of the Socialist Republicof Bosnia and
Herzegovina. If at least 20 MPs consider that the equality of
peoples and nationalities has been violated by the proposed
rules and regulations or any other act, the proposa1 to be
decided by the Assembly of the Socialist Republic of Bosnia and
Herzegovina shall be determined by the Council.
The Assembly of the Socialist Republic of Bosnia and
Herzegovina shalldecide on the questions of interest for the
realization of equality of the peoples and nationalities of
Bosnia and Herzegovina at the proposa1 of the Council in a
special procedure establishedby the Rules of Procedure of the
Assembly of the Socialist Republicof Bosnia and Herzegovina by
the two-third majority of the overall number of MPs."
This was the most importantconstitutional provision guaranteeing the
equality of the peoples and nationalities in Bosnia andHerzegovina.This rule expressed the core of the principle of equality and self-
determinationof peoples in Bosnia and Herzegovina. Accordingly, it was
provided that the questions concerningthe equality of peoples be decided
by agreementof an even nurnberof representativesof al1 three peoples.
Mr. Alija Izetbegovie rejected each and every attempt at reaching
agreement with the representativesof the Serbian people. This
constitutional principlewas grossly violated on the occasion of the
adoption of the decision on holding a referendum. Oslobodjenje
(Liberation)is a daily paper published in Sarajevo, Bosnia and
Herzegovina. This is how Oslobodjenje of 26 January 1992 reported the
adoption of the decision by the Assembly of the Socialist Republic of
Bosnia and Herzegovina on holding the referendum:
"The referendum of the citizens of Bosnia and Herzegovina
on the future statusof this Republic will be held on
29 February and 1 March 1992. The decision on referendum was
adopted, unanimously early yesterday morning, after seventeen
hours of discussion, by the Parliament of the Socialist Republic
of Bosnia and Herzegovina, but without thepresence of the MPs
of the Serbian DemocraticParty and the Serbian Renewal
Movement. Al1 the 130 present MPs voted: the MPs of the Party
of Democratic Action and the Croatian DemocraticCommunity, as
well as the MPs of the opposition bloc, except the Liberal
Party.
The decision on referendum in Bosnia and Herzegovina was
adopted at the extended session of the Parliament presidedby
the Vice-Presidentof the Parliament of Bosnia and Herzegovina,
Mr. Mariofil LjubiC. He was entrusted with this position at the
request of the Club of the MPs of the Party of Democratic Action
which al1 MPs present in theconference room supported by
voting. Before that, the President of the Parliament of the
Socialist Republicof Bosnia and Herzegovina, MomCilo KrajiSnik,
adjourned the session for the followingday after the last
interruption of the session he had presided over (statingthat,
according to the Rules of Procedures, the conditions for the
continuation of the work had not concurred).
This turnabout came about because of the failure of the
three ruling Parliamentary partiesto agree on the agenda
supplement, i.e., the introduction of the proposa1 of the
Presidency of the Socialist Republicof Bosnia and Herzegovina
to adopt at this session the decision on a referendum of
citizens. Many consultations were held because of which the session was frequently interruptedand each time when the
session was resumed it seemed that a solution was in sight.
Particularlyso in midxlighthours when theDeputy Prime Minister
of Bosnia and Herzegovina, Muhamed Eengie, proposed that 'first
a detailed plan of the regionalizationof the Republic be worked
out and that only then a referendum be organizedr, but within a
fixed period, to which the leader of the Serbian Democratic
Party, Radovan KaradZiE, also agreed who at one moment found
himself at the rostrum together with eengie.
'We have never been closer to an agreement than this time',
said KaradZiC to the applause of the MPs. The next interruption
brought about another turnabout. Vlado PandZie, Chairman of the
Club of the Representativesof the Croatian Democratic
Community,also said that he was glad that the agreement on a
referendum was about to be reached. Only whenRadovan KaradZiE
requested that theregionalization obligationbe defined in a
new constitution act (firstregionalization,and then
referendum),the President of the Party of Democratic Action,
Alija Izetbegovie,rejected any conditions regarding the
referendum and said: 'We stick to what we have already
proposed, and as far as discussion isconcerned we can accept
it'. Leaving the rostrum he criticized KrajiSnik for the way in
which he conducted the session.
At that moment it was obvious thatal1 hopes in a
successful outcomeof the ~arad~iE-een~i~agreement had failed.
Vojislav Maksimovie, Chairman of the Club of the MPs of the
Serbian Democratic Partysaid that any further discussionwas
purposeless and proposed, on behalf of al1 the MPs of the
Serbian Democratic Party, that the proposa1 to take a decision
on the referendum of the citizens be forwarded to the Council
for Inter-EthnicEquality. At this point this session of the
Parliament was concludedfor the MPs of the Serbian Dernocratic
Party who, together with President KrajiSnik, left the
conference room. It was exactly 3.30 a.m."
By refusing to respect the requestof the Serbian MPs to have the
said Council declare itself on the question of the referendum on
independence,the Assembly of Bosnia and Herzegovina grosslyviolated the
constitutionalprovisions contained in Arnendment LXX to the Constitution
of the Socialist Republic of Bosnia and Herzegovina.
2.3. The Socialist Federal Republic of Yugoslavia as a subject of
international law and its central organs functioned at the time of the
secession of Bosnia and Herzegovina.
In page 51, paragraph 3.5, of its Staternent,the Applicant goes on to "Even if the implementationof the right to independence
had been subjected to a requirement of agreement of Federal or
other bodies within the Constitutional systemof the Socialist
Federal Republic of Yugoslavia (which it was not), such a
requirement would have been irrelevantin this case. When the
Republic of Bosnia and Herzegovina activated itsright to full
independence,the organs of the former Socialist Federal
Republic of Yugoslavia were no longer functioning. As the
Badinter Commission confirmedin November 1991, the Socialist
Federal Republic of Yugoslavia was already at that stage in a
process of dissolution ... Soon after the referendum on
independenceof 29 February/l March 1992, the Arbitration
Commission statedthat this process had been concluded ... The
Republic of Bosnia and Herzegovina had thereforeno option but
to achieve its independence unilaterally, through the
application of its own constitutional procedures ..."
The quoted contention of the Applicant is not true at all. The first
illegal acts through which the secession of Bosnia and Herzegovina began,
were made on 14 October 1991when the Assembly of the Socialist Republic of
Bosnia and Herzegovina adoptedthe Platform on the Status of Bosnia-
Herzegovina in the Future Set-up of the Yugoslav Communityand the
Memorandum (Letterof Intent). This was followed by the decisions of the
Presidency and Government of the Socialist Republicof Bosnia and
Herzegovina to submit a request for independence.On its session of 24 and
25 January 1992, the Assembly of the Socialist Republicof Eosnia and
Herzegovina decided to organizea referendum of the citizens on
independence. Al1 those decisions were taken without theparticipation and
against the will of the representativesof Bosnian Serbs in.respective
fora. The referendum was held on 29 February and 1 March 1992. In April
and May 1992, armed formationsunder the control of the Muslim-Croat
authorities inBosnia and Herzegovina carriedout armed attacks on the
forces of the Yugoslav People's Army during their withdrawal £rom Bosnia
and Herzegovina. The Yugoslav Federationand its organs did exist de jure
and de facto throughout this period - 27 -
References to the Opinions of the Badinter Commission arewrong. It is
true that in the Commission's Opinion No. 1 of 29 November 1991 it is said
"that the Socialist Federal Republicof Yugoslavia is in the process of
dissolution".But in this same Opinion it is also said: "Although the
Socialist Federal Republic of Yugoslavia has until now retained its
internationalpersonality, ..." At the moment it communicated its first
Opinion, the Badinter Commission noted that at that time the Socialist
Federal Republicof Yugoslavia maintained its international personality.It
was only in its Opinion No. 8 of 4 July 1992 that the Badinter Commission
noted "thatthe process of dissolution of the Socialist Federal Republic of
Yugoslavia referredto in Opinion No. 1 of 29 November 1991 is now complete
and that the Socialist Federal Republicof Yugoslavia no longer exists". In
the opinion of the Badinter Commission, the Socialist FederalRepublic of
Yugoslavia existeduntil 4 July 1992, although in the process of
dissolution.Accordingly, even if the Badinter Commission Opinionshad been
correct and if they had stood the test of time, the Applicant cannot invoke
them to corroborate itscontention that the federal organs were no longer
functioningand that "the Republic of Bosnia and Herzegovina had therefore
no option but to achieve its independence unilaterally ..." The federal
organs were functioning during the entire period in which Bosnia and
Herzegovinawas taking unilateral secessionistacts. Admittedly, they were
functioning ina changed composition,but the change of its compositionwas
necessitated preciselyby the acts of the secessionistRepublics which
recalled theirrepresentativesfrom federal organs. The contentionof a
Republic which recalls its representatives£rom federal organs that these
federal organs arenot functioning and that thereforethe Federation no
longer exists is untenable indeed. The Socialist Federal Republicof
Yugoslavia did not cease to exist as a subject of internationallaw. - 28 -
Notwithstandingthe contention, the fact is that a large number of the
representativesof Bosnia and Herzegovina, Muslims and Croats included, did
remain in the federal organs.
The Opinions of theBadinter Commission were problematicaland in any
event not legally binding. Besides, an opinion that a State is in the
process of dissolution is not a legal but a political opinion. This opinion
therefore constitutesno legal qualificationof the existing state of
affairs but an act of interference in the interna1 affairs of the Socialist
Federal Republic of Yugoslavia. In fact, this Opinion encouraged the
separatist forcesin the Socialist FederalRepublic of Yugoslavia.
Besides, an instant legal rule was created only for this case according
to which the central organs had no right to use force to suppress
separatist forces. This rule was never used before or after. The
application of this rule to the Yugoslav Federation, as well as the
premature recognitionof the secessionist Republics, enabled the
secessionist forces to succeedin their underrakings.
2.4. The right to secession is contrary to the territorial integrity of
States which is an essential element of the principle of equal rights and
self-determination of peoples.
By an unilateral and violent secessionfrom the Yugoslav Federation,
Bosnia and Herzegovina grosslyviolated the territorial integrityand
sovereignty of Yugoslavia. There is no doubt that it was contrary to the
obligations emanating from the principle of equal rights and self-
determination of peoples. 1 quote the relevantprovision contained in the
Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among Statesin Accordance with the Charter of
the United Nations, adopted by the General Assembiy on 24 October 1970,
which reads: "Nothing in the foregoing paragraphsshall be construed as
authorizing or encouraging any action whichwould dismember or
impair, totally or inpart, the territorial integrityor political
unity of sovereign and independentStates conducting themselves in
compliancewith the principleof equal rights and self-
determinationof peoples as described above and thus possessed of
a government representing the whole people belonging to the
territory withoutdistinction as to race, creed or colour."
The importanceof this provision was pointed out alsoby the World
Conference onHuman Rights, held in Vienna in 1993, which reiterated this
provision in paragraph 2 of the Vienna Declaration and Programme of Action.
(UN Doc. A/CONF.157/24,Part 1, 13 October 1993)
In her General Courseon Public International Law at the Hague Academy
of InternationalLaw, entitled "InternationalLaw and the Avoidance,
Containment and Resolution of Disputes", held in 1991, Judge Rosalyn
Higgins spoke very convincinglyon, inter alia, self-determinationbeyond
colonialism.On that occasion, she pointed out the importance of the
provision that we quoted. Analysing the practice, she notices that this
principle is complex and that some of its elements have a general
application. In that connection, she writes:
"This reality is a far cry £rom the position of certain
writers, who assume that self-determinationis only about
independence;that independence is achieved by the end of
colonialism;and that further independencecan only be achieved
through secession. Because they believe - correctly, in my opinion
- that there isno legal right of secession where there is
representative government - they conclude that there is no self-
determination permittedin these circumstances.Much of this
debate has centred around General Assembly resolution 2625
(XXV) . . ." (Recueil des Cours, Collected Coursesof the Hague
Academy of International Law (1991-V)Vol. 230, p. 162.)
On that occasion Judge Higginsquoted the citedparagraph of the
resolution.
With your permission, 1 shall invoke oneof the most comprehensive
studies on self-determinationof peoples: the monograph of Antonio Cassese called Self-Detemination of Peuples, A Legal Reappraisal, published in
1995. On page 269 of his book, Cassese says:
"As in the case of the twelve Soviet republics, under
internationallaw the six Yugoslav republicshad no right to
external self-determination.In addition, no such right was
proclaimed inthe Yugoslav constit~tion.~
Under external self-determination,the author, among others, means the
right to secession. On the following page theauthor notes the following:
"The achievement of independenceby Slovenia, Croatia,
Bosnia-Herzegovina,and Macedonia can therefore be seen as a
revolutionaryprocess that has taken place beyond the regulation
of the existing body of laws."
3. The denial of the right of the Serb people up until the signing of
the General Framework Agreement for Peace in Bosnia and Herzegovina and the
non-recognition of the Republic of Srpska as one of the entities of Bosnia
and Herzegovina was not in conformity with the principle of equal rights
and self-determination of peoples.
1 repeat here our conviction that the Opinions of the
Badinter Commission were groundless and that they were the political acts
misused as a basis for the interferencein the interna1 affairs of the
Socialist Federal Republicof Yugoslavia. However, even according to these
erroneous Opinions, Bosnia and Herzegovinadid not fulfil the conditions
for the accession to independence. Inits Opinion No. 4 of 11 January 1992,
the Badinter Commission consideredthe request of the Minister for Foreign
Affairs of the Socialist Republicof Bosnia and ~erzegovina by which
recognition of Bosnia and Herzegovina as a sovereign and independent State
was requested. In it the Badinter Commission notes:
"In the eyes of the Presidency and the Government of the SRBH
the legal basis for the application for recognition is Amendment
LX, added to the Constitutionon 31 July 1990. This states that
the Republic of Bosnia-Herzegovina is a 'sovereigndemocratic
State of equal citizens, comprising the peoples of Bosnia-
Herzegovina - Muslims, Serbs and Croats - and members of other
peoples and other nationalities living on its territoryv . This
statement is essentially the same as Article 1 of the 1974
Constitution and makesno significant changein the law. Outside the institutional frameworkof the SRBH, on
10 November 1991 the 'Serbianpeople of Bosnia-Herzegovina'voted
in a plebiscite for a 'cornmon Yugoslav State'. On 21 December 1991
an 'Assemblyof the Serbian people of Bosnia-Herzegovina'passed a
resolution calling for the formation of a 'SerbianRepublic of
Bosnia-Herzegovina'in a federal Yugoslav State if the Muslim and
Croat communitiesof Bosnia-Herzegovinadecided to 'change their
attitude towards Yugoslavia'. On 9 January 1992 this Assembly
proclaimed the independenceof a 'SerbianRepublic of Bosnia-
Herzegovina'.
4. In these circumstances the Arbitration Commissionis of
the opinion that the will of the people8 of Bosnia-Herzegovinato
constitute theSRBH as a sovereign and independentState cannot be
held to have been fully established.
This assessment could be reviewed if appropriate auarantees
were providedby the Republic applying for recognition,possibly
by means of a referendum of al1 the citizens of the SRBH without
distinction, carried out under internationalsupervision."
Accordingly, the Badinter Commissiondid not support theposition of
the Presidency and Government of the Socialist Republic of
Bosnia-Herzegovinathat the legal basis for the acquisition of independent
Statehood is to be found in Amendment LX to the Constitution of the SRBH.
It is obvious that the Badinter Commissionhad in mind the opposition
of the Serbian people in Bosnia and Herzegovina to its constitution as an
independent Stateoutside Yugoslavia and that it was an obstacle to make an
instantaneous recommendation forthe recognition of Bosnia and Herzegovina.
It therefore recommended thata referendum of al1 citizens of Bosnia and
Herzegovina be held which would express the will of the peoples of Bosnia
and Herzegovina. According to the official data of the Applicant only
63.4 per cent of the electorate participated in the referendum.
Considering thatone third of the population of Bosnia and Herzegovinawere
Serbs, we can conclude that the referendum was far below what has been
requested by the Badinter Commission.The Badinter Commissionmay not have
thought that literally al1 citizens should takepart in the referendum, but
it did request that al1 three peoples do so. This interpretationis based - 32 -
on two reasons. First, the Badinter Commission said that the "will of the
peoplea of Bosnia-Herzegovinato constitute the SRBH as a sovereign and
independent State canriotbe held to have been fully established". It used
the plural. Second, the Badinter Commission proposeda referendum of "al1
the citizens of the SRBH without distinction' as a sort of rernedyfor the
unestablishedwill of the peoples. The only thing that this could mean was
that the BadinterCommission expected that al1 three peoples take part in
the referendum. This did not happen. It is beyond dispute that al1 Serbs
or almost al1 Serbs in Bosnia and Herzegovina boycotted thereferendum.
Accordingly, such a referendum could not have been the basis for the change
of the position of the Badinter Commission expressed in its Opinion No. 4.
Mr. President,as we now have a scheduled coffeebreak, with your
permission 1 will stop delivering my statement and resume after the break.
Thank you, Mr. President.
The PRESIDENT: Thankyou, Mr. Mitie. The hearing is çuspended for a
break and the Sitting will resume at 11.30 a.m.
The Court adjourned from 11.15 a.m. to 11.30 a.m.
The PRESIDENT: Pleasebe seated. 1 give the floor to Mr. MitiC.
Mr. MITIC: Mr. President, distinguishedMembers of the Court, 1 want
to point out that the relevant decisionsof the Assembly, Government and
the Presidency of Bosnia and Herzegovina were taken by the outvoting of the
representativesof the Serbian people. For a very long time
Mr. Alija Izetbegovie showed no readiness for a reasonable compromise
solution. On several occasions he evenmade sure that no compromise be
reached between the Serbs and Muslims. As we said in paragraph 1.8.17 of - 33 -
the preliminary objections, on 22 December 1991, the leadership of the
Serbian DemocraticParty proposed a comprehensive democratic transformation
of Bosnia-Herzegovinainto a confederationof three ethnic communitieswith
three parliaments. During the talks held between the three parties the
Serbian DemocraticParty proposed that an integral Bosnia and Herzegovina
be preserved as part ofthe Yugoslav Federation. Reaiizing that the two
other parties were against this, the Serbian DemocraticParty was prepared
to respect the wish of Muslim and Croat representativesto "loosen" the
ties with Yugoslavia or to completely secede from it.
"For the sake of peace we are ready to accept Bosniaand
Herzegovina as a confederationwith three parliaments ofthe three
ethnic communities, functioning withoutany mutual disturbances.
This confederationwould also have some common functions, which
could make it possible for Bosnia and Herzegovina to be a link
between Croatia and Yugoslavia. Thus, three entities,
complementaryor at least indifferentto each other, would be
established in Bosnia and Herzegovina"
said Radovan KaradSie informing the Parliament of the Serbian people of
negotiations betweenthe three ethnic communities. Unfortunately, this
proposal of the leadership of the Serbian Democratic Partywas not
accepted
In paragraph 1.8.18 on page 45 of the Preliminary Objectionswe have
presented the draft agreement prepared in 1991 by Mr. Radovan KaradZiE,
President of the Serbian DemocraticCommunity, and Mr. Adil ZulfikarpaHiE,
President of the Muslim BosniacOrganization,on relations betweenthe
Serbian and Muslim peoples. The conclusionand realization of this
agreement were obstructedby Mr. Alija IzetbegoviC. It is clear that by
his statement at the session of the Assembly of the Socialist Republic of
Bosnia and Herzegovina on 25 January 1992 Mr. Alija Izetbegovie threw out
the agreement that was about to be reached between Mr. Radovan KaradZiC,
President of the Serbian DemocraticParty, and Mr. Muhamed kengi6, the - 34 -
representativeof the Party of Democratic Action towork out a detailed
plan of the regionalizationof the Republic firstand only then organize a
referendum. By refusing to make the referendum conditionalon the
regionalizationof the Republic, Mr. Alija Izetbegoviepushed Bosnia and
Herzegovina down the slippery slope of civil war. After al1 three sides -
Serbian, Muslim and Croat - accepted the Coutilheroplan for the
regionalizationof Bosnia and Herzegovina at thebeginning of 1992,
Mr. IzetbegoviC rejectedit. The European Comrnunityplan, presented by
Ambassador Coutilhero, representing the Community, was worked out before
the outbreak of the civil war in Bosnia and Herzegovina and was aimed at
forestalling the conflict. The plan provided for the creation of three
constituent units (Serbian,Muslim and Croat), whereby each one of them
would consist of a number of cantons. There should havebeen 14 cantons:
five Serbian, five Muslim and four Croat.
Mr. Alija IzetbegoviC chosewar to create a unitary and centralized
State, violating the legitimate requestsof the Serbian people in Bosnia
and Herzegovina. It was only after three yearsof a terrible war in Bosnia
and Herzegovina in whichal1 three peoples levied war against each other
that in Dayton, Ohio, on 21 November 1995, Mr. Alija IzetbegoviS accepted
the territorial divisionof Bosnia andHerzegovina into two entities: the
Republic of Srpska and the Federation of Bosnia and Herzegovina. Thereand
then he accepted that the central organs of Bosnia and Herzegovina should
have limited authorityand that the entities should have very important
competencies. He also agreed that each of the two entities could have
special parallel relations with neighbouring States. Why did
Mr. Alija IzetbegoviC hesitateso long to take this decision? There is no
doubt that he could have taken it much earlier: there were many
opportunities for such a decision. - 3 -
Why was Mr. Alija IzetbegoviC opposed for so long to each and every
regionalizationof Bosnia and Herzegovina? Did he really believe that
civil and multiethnic Society is incompatiblewith any regionalization or
similar constitutionaldevices despite the fact that there does exist a
number of civil andmultiethnic Statesin the world which have been
regionalized orfederalized precisely because a number of peoples live in
them?
4. The premature recognition of Bosnia and Herzegovina wae an act of
interference into the interna1 affairs of the Socialist Federal Republic of
Yugoslavia, which was not in conformity with the principle of equal rights
and self-determination of peoples.
Until the cessation of civil war in Bosnia and Herzegovina the
conditions for international recognitionof Bosnia and Herzegovina were not
fulfilled. The central organs of the Government of this Republic
controlled a very small part of the territory of Bosnia and Herzegovina:
part of Sarajevo, BihaC and part of central Bosnia. In fact four States
existed in the territory of the former Socialist Republicof Bosnia and
Herzegovina: the Republic of Srpska, the Republicof Bosnia and
Herzegovina, Herceg-Bosna and the Republic of Western Bosnia. Considering
that three States - the Republic of Srpska, Herceg-Bosnaand the Republic
of Western Bosnia - were continuouslyor sporadically in conflict with the
Republic of Bosnia and Herzegovina, it is possible to Say that up until the
Dayton Agreement,the Republic of Bosnia and Herzegovina enjoyed the
recognition of the internationalcommunity but that the majority of its
citizens, including Serbs, Croats and part of Muslims, led by Fikret AbdiC,
did not recognize it. It was only after the Agreement which was reached in
Dayton, Ohio, on 21 November 1995, which includedagreements on territorial
division and constitutionalarrangements, i.e., after its signing in Paris on 14 December 1995, that the conditions concurred forthe international
recognition of Bosnia and Herzegovina.
Many statesmen and prominent personalities publicly said that the
recognition of the Republic of Bosnia and Herzegovina had beenmade
prematurely. In paragraphs 1.12.7 to 1.12.14. of our Preliminary Objections
we pointed to the opinions of late President Mitterrand, United States
Secretary of State Christopher, Chairman of the Foreign Policy Committeeof
the Russian Parliament Ambartsumov, Lord Carrington, former Italian Foreign
Minister de Michelis, former French Foreign MinisterDumas and former
United States Secretaryof State Kissinger
The acts of the premature recognitionof the Republic of Bosnia and
Herzegovina were not in conformity with the provisions of the principle of
equal rights and self-determinationof peoples
Ending the presentation of the legal arguments related tothe third
Preliminary Objection, 1 would like to point out the following fact: The
Federal Republicof Yugoslavia objectedto the succession of the Republic
of Bosnia and Herzegovina tothe Convention on the Prevention and
Punishment of the Crime of Genocide. On page 89 of the Multilateral
Treaties deposited withthe Secretary-General,Status as at 31 December
1994, the following notice is registered under No. 3:
"On 15 June 1993, the Secretary-Generalreceived from the
Government of Yugoslavia the followingcommunication:
'Consideringthe fact thatthe replacement of sovereignty on
the part of the territory of the Socialist Federal Republicof
Yugoslavia previously comprisingthe Republic of Bosnia and
Herzegovina was carried out contrary to the rules of international
law, the Government of the Federal Republic of Yugoslavia herewith
States that it does not consider the so-called Republic of Bosnia
and Herzegovina a party to the (said convention), but does
consider that the so-called Republic of Bosnia and Herzegovina is
bound by the obligations to respectthe norms on preventing and
punishing the crime of genocide in accordance with general
international law irrespectiveof the Convention on the Prevention
and Punishment of the Crime of Genocide." - 37 -
The Federal Republic of Yugoslavia was not in the position to present
this objectionprior to the commencementof the dispute before the Court.
As it is known, the Note of the Secretary-Generalof the United Nations
notifying the parties to the Convention on the Prevention and Punishment of
the Crime of Genocide of the alleged successionof Bosnia and Herzegovina
to that Convention isdated 18 March 1993, and the Applicant submitted its
Application on 20 March 1993, two days after. Bosnia and Herzegovina did
not respond to this objection, which means that it accepted it.
Facts and Evidence Concerning theThird Preliminary Objections
The Applicant does not deny the fact that the Socialist Republicof
Bosnia and Herzegovina had been adequately representedin the organs of the
Federation in the period from World War Two until the moment it decided to
recall its representativesfrornthe organs of the Federation. The Applicant
itself pointed out the fact that the Socialist Republicof Bosnia and
Herzegovina had had very large competencies withinthe Yugoslav Federation.
The Applicant did not deny the fact that 1990 Amendment LXX, paragraph
10, to the Constitution.ofthe Republic of Bosnia and Herzegovina provided
for the setting up of the Council for the Questions of the Realization of
the Equality of the Peoples and Nationalitiesof Bosnia and Herzegovina
The Applicant does not deny the fact that the Council was never
established. In that connection it States two things.
In page 57, paragraph 3.16, of the Statement, the Applicant said:
"As has been confirmed by the Constitutional Courtof the
Republic of Bosnia and Herzegovina, the fact that the Council
never came into existence is of no relevance to the validity of
the decision of the constitutionalorgans of the Republic of
Bosnia and Herzegovina." - 38 -
This is telling and sufficient evidenceof the violation of the
principle of the equality and self-determinationof peoples. It was
precisely the Council for the Questions ofthe Realization of the Equality
of the Peoples and Nationalities of Bosnia and Herzegovina thatought to
have ensured the realization of the principle of equality and self-
determinationof peoples in Bosnia and Herzegovina. If the Constitutional
Court of Bosnia and Herzegovina said that the non-establishmentof this
Council was of no relevance for the decision of the Assembly of Bosnia and
Herzegovina on the question of the greatest importancefor the equality of
its three peoples, it means that Bosnia and Herzegovina had desisted£rom
respecting theprinciple of equal rights and self-determinationof peoples.
The contention of the Applicant, presented in paragraph 3.16 of the
Statement on page 57, according to which "a law on the establishment of
such a Council was never adopted due to opposition from membersof the
Serbian DemocraticParty in the Parliament" is absurd. The Applicant
provides no evidence to corroboratethis contention. When theDeclaration
on State Sovereignty and Indivisibility of theRepublic of Bosnia and
Herzegovina was considered on 26 February 1991, the MPs of the Serbian
Democratic Party requested that, prior to deciding on this proposa1 of the
Party of Democratic Action, the proposa1 be sent to the Council for the
Questions of the Realization of the Equality of the Peoples and
Nationalities of Bosnia and Herzegovina.However, Avdo Campara, General
Secretary of the Assembly of the Socialist Republic of Bosnia and
Herzegovina, replied that this Council hadnot been established despite the
existence of the constitutional basis for its establishment. Oslobodjenje
of Sarajevo reported it on 27 February 1991. This report has been submitted
to the Court. When the Memorandum on Sovereignty (The Letter of Intent),
proposed by the Party of Dernocratic Action, and the Platform on the - 39 -
Position of Bosnia and Herzegovina and the Future Set-Up of the Yugoslav
Comrnunity,proposed by the Presidency of the Socialist Republicof Bosnia
and Herzegovina,were considered at the session of the Assembly of the
Socialist Republic of Bosnia and Herzegovina on 14 October 1991, the MPs of
the Serbian DernocraticParty refused to decide on these documents, since
the proposals had not been considered in the Council for the Questionsof
the Realization of the Equality of the Peoples and Nationalities of Bosnia
and Herzegovina. It is absurd to aver that theMPs of the Serbian
Democratic Partywho requested the Council's involvernent on 27 February and
14 October 1991 and on 25 January 1992 were against the adoption of a law
on its establishment.May 1 note that even if they had been against it,
they would not have been ableto prevent the establishment ofthe Council
because of the Muslim-Croatmajority in the Assembly of Bosnia and
Herzegovina. 1 therefore reject the contention of the Applicant, contained
in paragraph 3.16 of the Staternent. In the same paragraph it is further
said: "As has been confirmed by the Constitutional Courtof the Republic
of Bosnia and Herzegovina, the fact that the Council never came into
existence is of no relevance to the validity of the decisions of the
constitutional organsof the Republic of Bosnia and Herzegovina." This is
very telling evidence of the poor state of legality in the Republic of
Bosnia and Herzegovina, as well as a clear indicationof the degree of
respect for the principle of equality of three nations by the organs of the
Applicant. The chief cause of the civil war in Bosnia and Herzegovina is
precisely the gross violations of the principle of equality of its three
peoples, i.e., a callous snub of all, even compromise, requests of the
representativesof the Serbian people.
The Applicant does not deny the parts of the "Islarnic Declarationw, the
programmatic work of Mr. Alija Izetbegovie, initially publishedclandestinelyin 1970, and then publicly in 1991. Consequently, the
following quotations from the "Islamic Declaration" (the full text of the
Declaration enclosedin the Annexes to the PreliminaryObjections, Part 1,
pp. 197, 202, 219, 220) have not been denied.
"The first and the most important of these conclusions is
definitely theone about the incompatibilityof Islam and
non-Islamic systems. There caribe no peace nor CO-existence
between the IIslamic faitho and 8non-Ielamic8 social and political
institutions. The failure of these institutionsto function and
the instabilityof regimes in Moslem countries, manifestedin
frequent changes and coups d'état are as a rule the consequence of
their a priori opposition to Islam as the fundamental and guiding
feeling of the people in these countries. Claimingfor itself the
right to regulate its own world, Islam clearly rules out any right
or possibility of action of any foreign ideologyon its turf.
Namely, there is no room for the lay principle and the state
should be an expression of the moral concepts of religion and
supportive of them." (The bold type isours.)
Therefore, we must be preachers first and then soldiers. Our
prime means are persona1 example, books and words. When will
force be added to these means?
The choice of the right moment is always a specific question
and depends on a number of factors. Nevertheless, there is a
general rule: Islamic order should and can approach the
overtaking of rule as soon as it is morally and numerically strong
enough not only to overthrow the non-Islamic rule but to develop
new Islamic rule. This differentiationis important, since
destruction and development do not require anequal level of
psychological and material readiness.
To act prematurely is equally as dangerousas to be late in
taking the required action.
The conquering of power on the basis of a favourable
concurrence of events, without sufficient moral and psychological
preparedness and without the required minimum of competent and
developed personnel impliesthe realizationof another coup and
not an Islamic revolution (and a coup is a continuation of
non-Islamic politics by other groups of people or on behalf of
other principles). To be late in the overtaking of power means to
deny oneself a very powerful means for achievingthe aims of
Islamic order and to give non-Islamic rule an opportunity to
strike a blow to the movementand disperse its activists. For the
latter case, recent history gives sufficient tragicand
illustrative examples." (The bold type is ours.) - 41 -
The Applicant does not deny the quotations from the "Islamic
Declaration", but points out that there are some tenets of the Declaration
that are not so extreme as the cited ones. One way or another, the
quotations are telltale proof that Mr. Alija IzetbegoviC is not the man to
be able to convince the Serbian people that he will stand for the rule of
law, democracy, non-discriminationand respect for multi-ethnic diversity.
The Applicant objects to Our use of some sources that it claims to be
unreliable. Thus, in paragraphs 48 to 50 of its Statement, the Applicant
criticizes the reports of Yossef Bodansky as unreliable. However, Bodansky
wrote of the participation of mujaheddins in the civil war in Bosnia and
Herzegovina and of the supply of arms and terrorist experts to Sarajevo by
Tehran. Does the Applicant continue to deny the veracity of these claims
in the face of these facts? Before the beginning of the Rome Conference on
17 February 1996, the media worldwide reported the arrest ofa group of
terrorists, foreign citizens, in the vicinity of Sarajevo who were said to
have had linkswith some of the mernbersof the Government in Sarajevo.
After the arriva1 of IFOR in Bosnia and Herzegovina, the United States
Government expressed its concern on several occasions over the presence of
mujaheddins in Bosnia and Herzegovina and demanded that they leave Bosnia
and Herzegovina.
The Applicant did not deny Our contentions related to the founding of
three national parties in the Socialist Republic of Bosnia and Herzegovina:
Serbian Democratic Party, Croatian Democratic Communityand the Muslim
Party of Democratic Action nor the fact that these parties had won the
greatest number of seats at the first multi-party elections in 1990.
The Applicant does not deny that the youth magazine Novi Vox (the
relevant parts of the magazine are enclosed in the Annexes to the
Preliminary Objections, Part II, p. 475) was published in Sarajevo which - 42 -
carried, inter alia, the following poem in its third edition for October
"Dear Mother, 1 am going to plant willows,
On which we will hang the Serbs.
Dear Mother, 1 am going to sharpen bayonets.
We will soon fil1 the pits again.
Dear Mother, preparesalad for us.
Invite our Croat brothers too.
When our banners unite
Al1 Serbs will end up in graves."
During World War Two the slogan "Serbs on Willows" was popular among
the Ustashe (WorldWar Two fascist armed formationsin the Independent
State of Croatia). The Applicant invokes the freedomof the press and
claims that the magazine did not reflect the views and policies of the
Bosnian Government and that the reporting of Novi Vox is irrelevant for the
Preliminary Objections (pp. 16 and 17, para. 38, of the Statement).
The Applicant does not deny most of our claims presented in connection
with the rebellion by members of the Party of Democratic Action and the
Croatian DemocraticCommunity in the Republican Government againstthe
Socialist Federal Republic of Yugoslavia and the pressures on the Serbian
people in Bosnia and Herzegovina on pages 47 to 72 of the Preliminary
Objections. It does not deny the setting up of Muslim armed formations
during 1991 and at the beginning of 1992, not does it deny the terrorist
attacks carried outby the Muslim armed formationson the forces of the
Yugoslav People's Army in Sarajevo and in other places in Bosnia and
Herzegovina in Aprii and May which we presented in Our Preliminary
Objections. Also, the Applicant does not deny thatintensive armed
conflicts took place between Muslim and Croatian forces during 1993 which
ended by the creation of the Muslim-Croat federation. It does not deny the
almost continuous conflictof the Muslim armed formations under the command
of Mr. Alija IzetbegoviE and the Muslim armed formations under the command - 43 -
of Mr. Fikret AbdiC which took place in Western Bosnia and ended in the
military defeat of the forces under Fikret Abdie.
The Applicant objects that we have devoted several pages of the
Preliminary Objectionsto historical facts. We did not do it for reasons
attributed to us by the Applicant. As a matter of fact, from the first
written submissionsof the Applicant one could get an impression that
Muslims and Catholics lived in idyllic conditions in Bosnia and Herzegovina
until 1991 when 1,300,000 Serbs came over £rom Serbia as agents and
surrogates of the government in Belgrade withan intention to cause
trouble. Accordingly, the Applicant compelled us to point to the fact that
the Serbs had lived in Bosnia and Herzegovina as a people also before 1991
and, let it be noted, for at least ten centuries. The Applicant also
compelled us to Say that the Serbs in Bosnia and Herzegovina hadnot
refused to remain ina unitary independent State because they had received
such an order from Belgrade, but because they still remembered very vividly
the genocide that the Serbian people had suffered at the hands of Croatian-
Muslim fascist forces inWorld War IIand because of the political changes
that began in 1990 which 1 pointed out in my statement. The facts that 1
have drawn your attention to were the root causes the Serbian people in
Bosnia and Herzegovina wereguided with to reject a unitary and centralized
Bosnia and Herzegovina outside Yugoslavia.
Mr. President, without prejudiceto Our contention that notification of
succession is reserved for newly independentStates, born in the process of
decolonization, 1 submit to make the following conclusion:
- The Applicant could not succeed to the Genocide Conventionbecause
the acquisition of its independentStatehood had not been in conformity
with the principle of equal rights and self-determinationof peoples.
Thank you, Mr. President. - 44 -
Mr. PRESIDENT: Thank you very much, Mr. MitiC and now 1 give the floor
to Mr. George LopiEie, Co-Agent.
Mr. LOPIEI~ M:r. President, distinguished Mernbersof the Court, may it
please the Court.
1 now proceed to present the second preliminary objection of the
Federal Republic of Yugoslavia. It is quite simple. Bosnia and
Herzegovina had a collective Head of State: the Presidency. The decision
to initiate proceedings before the International Court of Justice could
have been taken by the Presidency. The decision was not taken by the
Presidency, but by Mr. Alija 1zetbegoviC who was the President of the
Presidency. He was authorized to sign a decision of the Presidency, but
not to take it.
Quite a small number of facts are relevant for this objection and they
are easy to ascertain. Mr. IzetbegoviC signed the letter forwarded to the
Registrar of the International Court of Justice, dated 19 March 1993. By
this letter Mr. IzetbegoviC informs the Registrar that Bosnia and
Herzegovina has nominated its Agents. He writes in the letter that their
first act will be to initiate proceedings against Yugoslavia because of the
violation of the Convention on the Prevention and Punishment of the Crime
of Genocide. The letter was signed by Mr. Izetbegovie and under his name
is the name of his position the "President of the Republic of Bosnia and
Herzegovina". This letter is enclosed to the documents of the case. The
exact name of the position of Mr. Izetbegovif should have read "President
of the Presidency of the Republic of Bosnia and Herzegovina". Presumably,
Mr. IzetbegoviC wanted to be the President of the Republic, but he was not.
He was only the President of the Presidency of the Republic of Bosnia and
Herzegovina. Accordingly, Mr. IzetbegoviC was not the President of the - 45 -
Republic, but he behaved as though he was. We now arrive to the substance
of Our objection. According to the constitutional regulations of the
Applicant State, a decision to norninateagents and initiate proceedings
before the Court could have been taken by the Presidency of Bosnia and
Herzegovina. This decision could not have been taken by Mr. IzetbegoviC.
He could only sign such a decision. The decision to norninateagents and
initiate proceedings before the Court was not taken by the Presidency of
Bosnia and Herzegovina, but by the President of the Presidency, which was
outside the cornpetenceof Mr. IzetbegoviE.
The Statement of the Governrnentof Bosnia and Herzegovina on
prelirninaryobjections of 14 November 1995 (pp. 47-48, para. 2.20) reads:
"the Governrnentof Bosnia and Herzegovina wishes to reiterate
that in any case it is not for the Respondent, and for that
matter not even for the Court itself, to enter into an
examination of the constitutional technicalities of the law of a
sovereign Stateu.
The Applicant State reduces this problem to "constitutional
technicalitiesu. However, the usurpation of power by one man and his
taking of decisions outside his competence cannot certainly be qualified by
"constitutional technicalitiesu. One of the serious reasons because of
which the Serbian people in Bosnia and Herzegovina did not want to remain
in a unitary Bosnia and Herzegovina was exactly this behaviour of
Mr. Izetbegovie who took foreign policy decisions single-nandedly on behalf
of the Presidency of the Republic
After all, it was not only the Serbian people in Bosnia and
Herzegovina who had problems with the autocratic proclivities of
Mr. Izetbegovie. In February 1995 £ive of the seven rnembersof the
Presidency of Bosnia and Herzegovina issued a Staternentdenouncing the
attempt of Mr. IzetbegoviC to transform Bosnia-Herzegovina into a one-party
Islamic State. The signatories said that army units were exposed to - 46 -
ideological pressures and the abuse of religious feelingsby some of their
members. Theprotest was signed by Mr. Nijaz DurakoviC, a Muslim,
Mr. Stjepan KljujiE, a Croat, Mr. Ivo KomgiE, a Croat,
Mrs. Tatjana LjujiE-MijatoviCand Mr. Mirko ~ejanovif, Serbs. The other
two members of the Presidency were Mr. Alija IzetbegoviC and
Mr. Ejup Ganif, Muslims (RobertFox, "Islamic Indoctrinationof ArrnySplits
Bosnian Leadership",Daily Telegraph, 6 February 1995, Annex, p. 288)
On pages 40 to 48 of its Statement, the Applicant State avers that,
according to the constitutional regulations, the Presidency of Bosnia and
Herzegovina was competent to take such a decision and that the President of
the Presidencywas authorized to sign such a decision. 1 do not deny this.
1 simply state that the Presidency did not take such a decision and that it
was taken by the President of the Presidency, which is contrary to the
constitutional regulations. It was very simple for the Applicant State to
deny rnycontentionby forwarding a copy of the decision of the Presidency.
Had the Presidency taken the decision in dispute, it would have certainly
been registeredsomewhere. However, the Appiicant State did not submit any
evidence that the decision in dispute had indeed been taken by the
Presidency of the Republic. In page 46, paragraph 2.18, of the Statement
of the Applicant State, it is said:
"The decision to bring the present action in the
InternationalCourt of Justice was taken by the Presidency, in
the exercise of its powers under Article 222 of the Consolidated
Constitution . . ."
This assertion remainsunproved. 1 contend that the decision was not taken
by the Presidency. If the decision was indeed taken by the Presidency, 1
cal1 on the Applicant State to provide evidence to that effect. In the
same paragraph on page 47 of its Statement, the Applicant State goes on to "Accordingto Article 20 of the Operating Procedureof the
Presidency of 23 December 1991, the Presidency is represented by
its President,who, according to Article 54 signs al1 acts of the
Presidency inits name."
1 agree with this contention of the Applicant State. But now, the
Applicant State makes a wrong conclusion:
"The President was thus duly authorized to instruct thethen
Agent for theRepublic of Bosnia and Herzegovina to institute
proceedings. He did it in the name of the Presidency which he
represented . . ."
The President of the Presidency was not authorized "to instruct the
then Agent of the Republic of Bosnia and Herzegovina to institute
proceedings". Authorized to do so was the Presidency, while the President
of the Presidency was authorized to sign such a decision of the Presidency.
Accordingly, the President of the Presidency was not authorized to take
such a decision on behalf of the Presidency. Accordingly, it is to be
concluded that, in taking the decision to institute theproceedings,
Mr. IzetbegoviCgrossly exceeded his authority and that the Application is
therefore inadmissible.
In paragraph A.2.5 on page 93 of the Preliminary Objectionsof
June 1995 we said that
"Alija IzetbegoviCwas not appointed as President of the
Presidency in a legal manner. At the general and direct
elections held in the Socialist Republicof Bosnia and
Herzegovina in 1990, he won 879,266 votes, whereas Mr. Fikret
AbdiC won 1,045,539 votes. Having won more votes, Mr. AbdiC
should have becomethe President of the Presidency."
In paragraph 2.11 on page 44 of its Statement, the Applicant State
does not deny this fact and States instead:
"There is no constitutional requirement whichwould hold that
the individual who achievedthe highest number of votes in the
elections for membership in the Presidency must be appointed
President of the Presidency."
This is perhaps true, but is not politically logical. In any case, 1
believe that Mr. AbdiC regrets now very much that he ceded his position of - 48 -
At the time he did SO,
the Presidentof the Presidency to Mr. ~zetbegovié.
he was a member of the Party of Democratic Action whose leaderwas
It was probably on this account thathe ceded his
Mr. IzetbegoviC.
position to his party leader. However, soon after, he discovered the
Muslim fundamentalist intentionsof Mr. Izetbegovie and this was the cause
of their political split. At the first Congress of the Party of Democratic
Action on 1 December 1991, Mr. Abdie said that nobody in Bosnia and
Herzegovina had the right to do anything that would be to the detriment of
the Muslim people, but also to the detriment of any other people and
opposed the absolutist government of Mr. IzetbegoviC. The political
leanings of Mr. IzetbegoviEaccounted for the parting of ways between Mr.
AbdiE and Mr. IzetbegoviC. The political split between these two men
evolved into an armed conflict between the Muslims of Western Bosnia who
supported Mr. AbdiC and the armed forces under the comrnandof
Mr. IzetbegoviE. Out of this conflict emerged and existed for a time as an
independent State theRepublic of Western Bosnia. During 1995, the armed
forces under the command of Mr. IzetbegoviC defeated this independentunit
of their Muslim opponents. Dozens of thousands of people fled the area and
they have not returned home yet for fear of reprisals. Mr. AbdiE also
lives outside Bosnia and Herzegovina. The Government of Mr. IzetbegoviE
requested his extradition, accusing him of armed rebellion. The attitude
of the Government of Mr. IzetbegoviE towardsMr. Abdie is well illustrated
by a report carried recentlyby International HeraldTribune to the effect
that the Muslim Governmentof Bosnia and Herzegovina sent small commando
units to kill or capture renegade Muslim leader Fikret AbdiC, in exile in
Croatia. Four men and a wornen,some of them formerly employedby the
Bosnian police, were arrested in Croatia on 8 April 1996 (ChrisHedges,
"Bosnians Are Using Iran-TrainedHit Squads", International Herald Tribune, - 49 -
16 Aprii 1996, p. 1). Accordingly, there is no doubt in my mind that
Mr. Abdie now regrets his decision to cede his position to his party
leader. Had he not done that, the developments in Bosnia and Herzegovina
would probably have taken a different course.
Thank you, Mr. President.
The PRESIDENT: Thank you Your Excellency for your statement.
Maintenant, je me tourne vers M. Suy pour lui offrir un choix. Vous
disposons d'un peu de temps avant 13 heures, est-ce qu'il souhaite prendre
tout de suite la parole pour son exposé oral ou est-ce qu'il préfère le
faire cet après-midi?
M. SW : Je suis entre vos mains, M. le Président, donc je pourrais
donner maintenant l'introduction.
Le PRESIDENT : Parfait, je vous remercie et vous appelle à la barre.
M. SW : Monsieur le Président, Madame et Messieurs de la Cour, j'ai
l'honneur de présenter la partie de la plaidoirie de la République fédérale
de Yougoslavie portant sur les exceptions préliminaires ayant trait au
problème de la succession d'Etats en matière de traités. La République
fédérale de Yougoslavie estimeque la Bosnie-Herzégovine,au moment des
faits qui font l'objet de la présente affaire, n'était pas partie à la
convention sur la prévention et la répression du crime de génocide du
9 décembre 1948 dont elle invoque l'article IX comme fondement de la
compétence de votre Cour. A l'appui de cette thèse, la République fédérale
de Yougoslavie invoque trois raisons : primo, il n'y a pas eu de succession
automatique de la République de Bosnie-Herzégovinedans la convention sur
le génocide. Secundo, la convention sur le génocide n'est entrée en - 50 -
vigueur entre les Parties que lors des accords de Dayton de 1995 et ceci
pour une double raison : d'abord, la simple notificationde succession par
un ou plusieurs Etats successeurs ne lie pas 1'Etat prédécesseur dans ses
relations avec lrEtat ou les Etats successeurs. En l'occurrence,
llapplicabilitéde la convention entre les Parties n'a été établie que par
les accords de Dayton. Ensuite, estimant que la déclaration d'indépendance
de la République de osn nie-Herzégovin était contraire aux normes du droit
international, comme vientde vous l'expliquer M. MitiE, la République
fédérative de Yougoslavie n'a pas reconnu la Bosnie-Herzégovineavant les
accords de Dayton de 1995. La Bosnie-Herzégovinen'a pas n'a pas non plus
reconnu la République fédérale de Yougoslavie avant ces accords de Dayton.
La Bosnie-Herzégovinene peut donc pas invoquer la convention sur le
génocide dans ses relations avec la Yougoslavie en ce qui concerneles
faits antérieurs à la reconnaissancemutuelle des deux Parties au présent
litige. Et tertio, mais à titre tout à fait subsidiaire, la convention sur
le génocide a pu entrer en vigueur entre les Parties au plus tôt en
mars 1993. La notification de succession n'est qu'une notification
d'adhésion à laquelle s'appliquent les dispositions conventionnelles. En
tout état de cause, la convention sur le génocide ne pouvait entrer en
vigueur entre lesParties avant que ladéclaration de succession faite par
la Bosnie-Herzégovinene soit notifiée à la République fédérale de
Yougoslavie.
Mais avant de développer ces thèses, il nous semble indispensablede
procéder à une brève analyse de la genèse du droit international en matière
de génocide. Suite aux exactions commisespar les nazis avant et pendant
la deuxième guerre mondiale, tant en Allemagne que dans les territoires
occupés dont la Yougoslavie à cette époque, et qui consistaient notamment à
éliminer en masse des personnesen raison de leur appartenance à une race - 51 -
ou de leur convictionpolitique, les personnes responsables de cesactes
ont été condamnées pouravoir commis des crimes contre l'humanité. Le
Tribunal internationalmilitaire de Nuremberg a été mis en place par
l'accord de Londres du 8 août 1945 concernant la poursuite et les
châtiments des grands criminels deguerre. L'article 6 du statut du
Tribunal de Nuremberg définit trois types d'infractions internationales à
savoir les crimes contre la paix, les crimes de guerre et les crimes contre
l'humanité. Il est intéressant de noter que le Tribunal a insisté sur le
fait que ces crimes sont commis par des personnes et non pas par des
entités abstraites. Le respect du droit international humanitaire exige la
condamnationd'individus. Lors de sa première session, l'Assemblée
générale de l'Organisationdes Nations Unies a adopté deux résolutions dans
lesquelles elle affirmeet elle confirme les principes du droit
internationalreconnus par le statut du Tribunal de Nuremberg ainsi que par
les jugements de ce tribunal. Quelques annéesplus tard la Commission du
droit internationalde l'ONU adopte un texte intitulé «Principes de droit
international consacrés parle statut du Tribunal de Nuremberg et dans le
jugement de ce tribunal». Ce texte parle également du principe de la
responsabilité individuelle caril mentionne dans son principe no 1 «tout
auteur d'un acte qui constitue un crime de droit internationalest
responsable de ce chef et passible de châtiment». La convention sur la
prévention et la suppression du crime de génocide de 1948 a exactement la
même portée. Elle appartient à ce qu'il est convenu d'appeler le droit
pénal international. Les Etats parties à cette conventions'engagent à
prendre des mesures internesafin de prévenir et de réprimer les actes de
génocide tels que définis dans l'article III de la convention. Ces mesures
concernent une législation pénale nécessaireafin de mettre en Œuvre les
dispositions de la convention dans le droit interne, je le répète. La - 52 -
convention et les mesures de mise en Œuvre qu'elle prescrit visent des
individus. 11 y a donc deux raisons principalespour conclure que la
convention de 1948 concerne seulementles crimes de génocide commis par des
individus. En premier lieu, les dispositions matérielles de laconvention,
notamment les articles 1 à VII, ont trait à la prévention et la punition de
certains actes commis par des personnes. En deuxième lieu, les
articles XIV et XV concernant la durée, concernant la dénonciation et
concernant la terminaison de la convention excluent que celle-ci soit
considérée comme une convention reflétant des règlesde droit international
général. Et c'est ici qu'intervient la question de l'interprétationde
l'article IX de la convention. Relisons attentivementcet article. 11
prévoit que
«les différends entre les Parties Contractantes relatifs à
l'interprétation, l'applicationou l'exécution de la présente
convention y compris ceux relatifs à la responsabilitéd'un Etat
en matière de génocide ou de l'un quelconque des autres actes
énumérés à l'article III seront soumis à la Cour internationale
de Justice,.
Contrairement à ce que prétend la Bosnie-Herzégovine on ne peut nullement
en déduire que la convention serait applicableau génocide commis par un
Etat .
Il est primordial à notre avis que la convention utiliseles termes <y
compris» plutôt que «ainsi que». Ceci signifie que l'article IX en se
référant à la responsabilitéde lfEtat n'étend pas la compétence de la Cour
telle qu'elle ressort de la première partie de l'article IX
En se référant à la responsabilité de 1'Etat l'article IX ne fait que
préciser la portée des termes précédantles mots «y compris». Compte tenu
des articles 1 à VII, ces termes ont incontestablementtrait aux actes de
génocide commis par des individus. La responsabilité de 1'Etat telle
qu'elle est envisagée à l'article IX est donc cellerésultant des - 53 -
manquements de llEtat aux obligations explicitées dans lesarticles 1 à VI1
concernant le génocide commispar des individus. Il s'agit donc d'une
responsabilitépour omission, pour le fait de ne pas avoir réagi face à un
génocide commispar des individus.
C'est partant de cette constatation,Monsieur le Président, que je
tiens à aborder maintenant et peut-être ce sera pour cet après-midi, mais
je suis entre vos mains, l'examen des exceptions préliminaires dela
République fédéralede Yougoslavie relatives à la succession dlEtats.
Dans la suite de cet exposé j'ai trois grandes parties, et, avec votre
permission, Monsieur le Président, je voudrais arrêter iciparce que
autrement je devrais déchirer la première partie de mes arguments. Je suis
entre vos mains, je vous remercie.
Le PRESIDENT : Merci, M. le professeur. La séance est suspendue
jusqu'à cet apreç-midi à 15 heures où je vous donnerai laparole pour
poursuivre.
L'audience est levée à 12 h 37.
Public sitting held on Monday 29 April 1996, at 10 a.m., at the Peace Palace, President Bedjaoui presiding