CR 2004/14
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2004
Public sitting
held on Wednesday 21 April 2004, at 10 a.m., at the Peace Palace,
President Shi presiding,
in the case concerning the Legality of Use of Force (Serbia and Montenegro v. Belgium);
(Serbia and Montenegro v. Canada); (Serbia and Montenegro v. France);
(Serbia and Montenegro v. Germany); (Serbia and Montenegro v. Italy);
(Serbia and Montenegro v. Netherlands); (Serbia and Montenegro v. Portugal);
and (Serbia and Montenegro v. United Kingdom)
________________
VERBATIM RECORD
________________
ANNÉE 2004
Audience publique
tenue le mercredi 21 avril 2004, à 10 heures, au Palais de la Paix,
sous la présidence de M. Shi, président,
en l’affaire relative à la Licéité de l’emploi de la force (Serbie et Monténégro c. Belgique)
Serbie et Monténégro c. Canada) (Serbie et Monténégro c. France)
(Serbie et Monténégro c. Allemagne) (Serbie et Monténégro c. Italie)
(Serbie et Monténégro c. Pays-Bas) (Serbie et Monténégro c. Portugal)
et (Serbie et Monténégro c. Royaume-Uni)
____________________
COMPTE RENDU
____________________ - 2 -
Present: President Shi
Vice-President Ranjeva
Judges Guillaume
Koroma
Vereshchetin
Higgins
Parra-Aranguren
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Owada
Tomka
Judge ad hoc Kreća
Registrar Couvreur
- 3 -
Présents : Shi, président
M. Ranjeva, vice-président
MM. Guillaume
Koroma
Vereshchetin
Mme Higgins
MM. Parra-Aranguren
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Owada
Tomka, juges
M. Kreća, juge ad hoc
M. Couvreur, greffier
- 4 -
The Government of Serbia and Montenegro is represented by:
Mr. Tibor Varady, S.J.D. (Harvard), Chief Legal Adviser at the Ministry of Foreign Affairs of
Serbia and Montenegro, Professor of Law at the Central European University, Budapest and
Emory University, Atlanta;
as Agent, Counsel and Advocate;
Mr. Vladimir Djerić, LL.M. (Michigan), Adviser to the Minister for Foreign Affairs of Serbia and
Montenegro,
as Co-agent, Counsel and Advocate;
Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Chichele Professor of Public International Law (Emeritus),
University of Oxford, Member of the International Law Commission, member of the English
Bar, member of the Institut de droit international,
as Counsel and Advocate;
Mr. Slavoljub Carić, Counsellor, Embassy of Serbia and Montenegro, The Hague,
Mr. Saša Obradović, First Secretary, Embassy of Serbia and Montenegro, The Hague,
Mr. Vladimir Cvetković, Third Secretary, International Law Department, Ministry of Foreign
Affairs of Serbia and Montenegro,
Ms Marijana Santrač,
Ms Dina Dobrković,
as Assistants;
Mr. Vladimir Srećković, Ministry of Foreign Affairs,
as Technical Assistant.
The Government of the Kingdom of Belgium is represented by:
Mr. Jan Devadder, Director-General, Legal Matters, Ministry of Foreign Affairs, Brussels,
as Agent;
Mr. Daniel Bethlehem, Q.C., Director, Lauterpacht Research Centre for International Law,
Cambridge,
as Counsel;
Ms Clare Da Silva, Research Assistant, Lauterpacht Research Centre for International Law,
Cambridge,
Ms Valérie Delcroix, Assistant Adviser, Directorate of Public International Law, General
Directorate of Legal Affairs, Federal Public Department of Foreign Affairs, Foreign Trade and
Co-operation for Development, Brussels,
as Assistants. - 5 -
Le Gouvernement de la Serbie et Monténégro est représenté par :
M. Tibor Varady, S.J.D. (Harvard), conseiller juridique principal au ministère des affaires
étrangères de la Serbie et Monténégro, professeur de droit à l’Université d’Europe centrale de
Budapest et à l’Université Emory d’Atlanta,
comme agent, conseil et avocat;
M. Vladimir Djerić, LL.M. (Michigan), conseiller du ministre des affaires étrangères de la Serbie et
Monténégro,
comme coagent, conseil et avocat;
M. Ian Brownlie, C.B.E., Q.C., F.B.A., professeur émérite de droit international public à
l’Université d’Oxford, ancien titulaire de la chaire Chichele, membre de la Commission du droit
international, membre du barreau d’Angleterre, membre de l’Institut de droit international,
comme conseil et avocat;
M. Slavoljub Carić, conseiller à l’ambassade de Serbie et Monténégro à La Haye,
M. Saša Obradović, premier secrétaire à l’ambassade de Serbie et Monténégro à La Haye,
M. Vladimir Cvetković, troisième secrétaire, département de droit international, ministère des
affaires étrangères de Serbie et Monténégro,
Mme Marijana Santrač, LL.B. M.A. (Université d’Europe centrale),
Mme Dina Dobrković, LL.B.,
comme assistants;
M. Vladimir Srećković, ministère des affaires étrangères de Serbie et Monténégro,
comme assistant technique.
Le Gouvernement du Royaume de Belgique est représenté par :
M. Jan Devadder, directeur général à la direction générale des affaires juridiques du ministère des
affaires étrangères,
comme agent;
M. Daniel Bethlehem Q.C., directeur du Lauterpacht Research Centre for International Law,
Cambridge,
comme conseil;
Mme Clare Da Silva, assistante de recherche au Lauterpacht Research Centre for International
Law, Cambridge,
Mme Valérie Delcroix, conseiller adjoint à la direction droit international public, direction générale
des affaires juridiques du ministère des affaires étrangères,
comme assistantes. - 6 -
The Government of Canada is represented by:
Ms Colleen Swords, Legal Adviser to the Department of Foreign Affairs,
as Agent;
Mr. David Sproule, Department of Foreign Affairs,
as Deputy Agent;
Mr. L. Alan Willis, Q.C.,
Ms Ruth Ozols Barr, Department of Justice,
as Counsel and Advocates;
Ms Laurie Wright, Department of Justice,
Ms Sabine Nolke, Department of Foreign Affairs,
Ms Marie-Josée Rhéaume, Department of Foreign Affairs,
Ms Anik Beaudoin, Department of Justice,
as Counsel.
The Government of the French Republic is represented by:
Mr. Ronny Abraham, Director of Legal Affairs, Ministry of Foreign Affairs,
as Agent;
Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, member and former Chairman of
the International Law Commission,
as Counsel and Advocate;
Ms Michèle Dubrocard, Legal Counsellor, Embassy of France in The Netherlands,
Mr. Pierre Bodeau, chargé de mission, Legal Affairs Department, Ministry of Foreign Affairs,
as Advisers.
The Government of the Federal Republic of Germany is represented by:
Mr. Thomas Läufer, Director General for Legal Affairs and Legal Adviser, Federal Foreign Office,
H.E. Mr. Edmund Duckwitz, Ambassador of the Federal Republic of Germany to the Kingdom of
the Netherlands,
as Agents; - 7 -
Le Gouvernement du Canada est représenté par :
Mme Colleen Swords, conseiller juridique auprès du ministère des affaires étrangères,
comme agent;
M. David Sproule, ministère des affaires étrangères,
comme coagent;
M. L. Alan Willis, Q.C.,
Mme Ruth Ozols Barr, ministère de la justice,
comme conseils et avocats;
Mme Laurie Wright, ministère de la justice,
Mme Sabine Nolke, ministère des affaires étrangères,
Mme Marie-Josée Rhéaume, ministère des affaires étrangères,
Mme Anik Beaudoin, ministère de la justice,
comme conseils.
Le Gouvernement de la République française est représenté par :
M. Ronny Abraham, directeur des affaires juridiques au ministère des affaires étrangères,
comme agent;
M. Alain Pellet, professeur à l’Université Paris X-Nanterre, membre et ancien président de la
Commission du droit international,
comme conseil et avocat;
Mme Michèle Dubrocard, conseillère juridique près l’ambassade de France aux Pays-Bas,
M. Pierre Bodeau, chargé de mission à la direction des affaires juridiques au ministère des affaires
étrangères,
comme conseillers.
Le Gouvernement de la République fédérale d’Allemagne est représenté par :
M. Thomas Läufer, directeur général des affaires juridiques et conseiller juridique du ministère
fédéral des affaires étrangères,
S. Exc. M. Edmund Duckwitz, ambassadeur de la République fédérale d’Allemagne auprès du
Royaume des Pays-Bas,
comme agents; - 8 -
Mr. Christian Tomuschat, Professor of Public International Law at the Humboldt University of
Berlin,
as Co-Agent and Counsel;
Ms Susanne Wasum-Rainer, Head of the Public International Law Division, Federal Foreign
Office,
Mr. Reinhard Hassenpflug, Federal Foreign Office,
Mr. Götz Reimann, Embassy of the Federal Republic of Germany,
as Advisers;
Ms Fiona Sneddon,
as Assistant.
The Government of the Italian Republic is represented by:
Mr. Ivo Braguglia, Head of the Diplomatic Legal and Treaties Department, Ministry of Foreign
Affairs,
as Agent;
Mr. Umberto Leanza, Professor at the Faculty of Law, University of Rome “Tor Vergata”,
as Co-Agent;
Mr. Luigi Sico, Professor at the Faculty of Law, University of Naples “Federico II”,
Mr. Luigi Daniele, Professor at the Faculty of Law, University of Rome “Tor Vergata”,
Ms Ida Caracciolo, Professor at the Faculty of Law, University of Naples II,
as Counsel;
Ms Valeria Santori, Doctor and international law research supervisor,
as Assistant.
The Government of the Kingdom of the Netherlands is represented by:
Mr. J. G. Lammers, Legal Adviser of the Ministry of Foreign Affairs,
as Agent;
Mr. N. M. Blokker, Legal Counsel of the Ministry of Foreign Affairs,
as Co-Agent. - 9 -
M. Christian Tomuschat, professeur de droit international public à l’Université Humboldt de
Berlin,
comme coagent et conseil;
Mme Susanne Wasum-Rainer, chef de la division du droit international public du ministère fédéral
des affaires étrangères,
M. Reinhard Hassenpflug, ministère fédéral des affaires étrangères,
M. Götz Reimann, ambassade de la République fédérale d’Allemagne à La Haye,
comme conseillers;
Mme Fiona Sneddon,
comme assistante.
Le Gouvernement de la République italienne est représenté par :
M. Ivo Maria Braguglia, chef du service du contentieux diplomatique et des traités du ministère des
affaires étrangères,
comme agent;
M. Umberto Leanza, professeur à la faculté de droit de l’Université de Rome «Tor Vergata»,
comme coagent;
M. Luigi Sico, professeur à la faculté de droit de l’Université de Naples «Federico II»,
M. Luigi Daniele, professeur à la faculté de droit de l’Université de Rome «Tor Vergata»,
Mme Ida Caracciolo, professeur à la faculté de droit de l’Université de Naples II,
comme conseils;
Mme Valeria Santori, docteur de recherche en droit international,
comme assistante.
Le Gouvernement du Royaume des Pays-Bas est représenté par :
M. J. G. Lammers, conseiller juridique du ministère des affaires étrangères,
comme agent;
M. N. M. Blokker, conseiller juridique, ministère des affaires étrangères,
comme coagent. - 10 -
The Government of Portugal is represented by:
Mr. Luís Serradas Tavares, Director of the Department of Legal Affairs, Ministry of Foreign
Affairs, Lecturer in Law at the University Lusíada,
as Agent;
H.E. Mr. João Salgueiro, Ambassador of the Portuguese Republic to the Kingdom of the
Netherlands,
as Co-Agent;
Mr. Miguel Galvão Teles, from Miguel Galvão Teles, João Soares da Silva & Associados, member
of the Portuguese Bar,
as Counsel and Advocate;
Ms Patrícia Galvão Teles, Consultant of the Department of Legal Affairs, Ministry of Foreign
Affairs of Portugal, Professor of International Law at the Autonomous University of Lisbon,
as Counsel;
Mr. Luís de Barros, Counsellor at the Portuguese Embassy in The Hague,
Ms Filipa Marques Júnior, from Miguel Galvão Teles, João Soares da Silva & Associados,
as Assistants.
The Government of the United Kingdom of Great Britain and Northern Ireland is represented
by:
Sir Michael Wood, K.C.M.G., Legal Adviser, Foreign and Commonwealth Office,
as Agent;
Mr. Chanaka Wickremasinghe, Legal Advisers, Foreign and Commonwealth Office,
as Deputy Agent;
Mr. Christopher Greenwood, C.M.G., Q.C., Professor of International Law, London School of
Economics and Political Science, member of the English Bar,
as Counsel;
Mr. David Burton, Embassy of the United Kingdom of Great Britain and Northern Ireland,
The Hague,
as Adviser. - 11 -
Le Gouvernement du Portugal est représenté par :
M. Luís Miguel Serradas de Sousa Tavares, directeur du département des affaires juridiques du
ministère des affaires étrangères, maître de conférence en droit à l’Université Lusíada,
comme agent;
S. Exc. M. João Manuel Guerra Salgueiro, ambassadeur de la République portugaise auprès du
Royaume des Pays-Bas,
comme coagent;
M. Miguel Galvão Teles, cabinet Miguel Galvão Teles, João Soares da Silva & Associés, membre
du barreau du Portugal,
comme conseil et avocat;
Mme Patrícia Galvão Teles, consultant auprès du département des affaires juridiques du ministère
des affaires étrangères, professeur de droit international à l’Université autonome de Lisbonne,
comme conseil;
M. Luís de Barros, conseiller à l’ambassade du Portugal à La Haye,
Mme Filipa Marques Júnior, cabinet Miguel Galvão Teles, João Soares da Silva & Associés,
comme assistants.
Le Gouvernement du Royaume-Uni de Grande-Bretagne et d’Irlande du Nord est représenté
par :
Sir Michael Wood, K.C.M.G., conseiller juridique du ministère des affaires étrangères et du
Commonwealth,
comme agent;
M. Chanaka Wickremasinghe, conseiller juridique au ministère des affaires étrangères et du
Commonwealth;
comme agent adjoint;
M. Christopher Greenwood, C.M.G., Q.C., professeur de droit international à la London School of
Economics and Political Science, membre du barreau d’Angleterre,
comme conseil;
M. David Burton, ambassade du Royaume-Uni à La Haye,
comme conseiller. - 12 -
The PRESIDENT: Please be seated. The sitting is now open. The Court meets this morning
to hear the first round of oral arguments of Serbia and Montenegro who takes up the floor for the
whole of this morning’s sitting.
I wish to announce that, for reasons that he has duly conveyed to me, Judge Kooijmans is
unable to take part in the present sitting.
I shall now give the floor to Mr. Tibor Varady, Agent of Serbia and Montenegro.
Mr. VARADY: Thank you very much, Mr. President.
I. Introduction
Mr. President, distinguished Members of the Court, it is, once again, an exceptional pleasure
to appear before this Court. I am also honoured by the fact that I am facing most distinguished
legal teams of high reputation. I would like to start by introducing my colleagues. With me are
Mr. Ian Brownlie, Q.C., member of the English Bar as counsel and advocate, and my Co-Agent
Mr. Vladimir Djerić, as counsel and advocate. Let me mention at this point that for your
convenience, we have provided a map of Serbia and Montenegro in our judges’ folders, it is tab. 1.
And a further technical matter: the Applicant, the Federal Republic of Yugoslavia, changed its
name to Serbia and Montenegro. We shall use both designations depending on the time period we
are referring to. We shall also use the common abbreviation for the Federal Republic of
Yugoslavia, which is the “FRY”.
1. Turning to the subject-matter of the dispute, let me say first that it is well known that
during the past decade the former Yugoslavia became the scene of a sequence of tragedies. The
arena of violence shifted. After a limited conflict in Slovenia, much more serious confrontations
broke out in Croatia, there was even more tragedy in Bosnia and Herzegovina, and finally we had
the bombing of Serbia and Montenegro by NATO Member States.
2. While the conflicts lasted, the warring parties took all possible military, political, and legal
steps to reinforce their own positions. These steps included applications submitted to the
International Court of Justice. As the conflicts subsided, arms were put aside, new political
configurations have emerged. The cases submitted to this honoured Court have, however,
remained. - 13 -
3. Mr. President, several colleagues representing the Respondents have mentioned that the
relations between Serbia and Montenegro and NATO countries have significantly improved during
the last years. We are pleased to confirm this, and the Government of Serbia and Montenegro
sincerely hopes that this trend will continue. Yet, the events of 1999 are still awaiting a proper
examination. We do have a dispute.
4. Mr. President, we cannot ignore the fact that significant changes took place since the
violence subsided. These changes are both political and structural. The Parties facing each other
before this Court in this case just like in other cases stemming from the conflicts in the former
Yugoslavia are not the same as those who fought each other during the past decade.
5. NATO sources alleged that the target of the bombing was the Milošević Government. The
bombing did not end the rule of Mr. Milošević. However, 16 months later, the Serbian opposition
and the Serbian people did. The party facing NATO countries today represents the people who
have overthrown the Government which was the stated target of the use of force.
6. Mr. President, Members of the Court, on 5 October 2000, hundreds of thousands of
demonstrators took the streets of Belgrade and brought about the end of the Milošević régime.
What remained is a most difficult legacy. We inherited the consequences of a decade of lost
opportunities. We have also inherited the lawsuits, the causes of which we hoped have been
defeated.
7. Mr. President, I would like to recall another massive demonstration which took place in
Serbia in the recent past. On 17 November 1996 the anti-Milošević opposition was successful in
local elections. The election results were not recognized, however, by the Government, and this
prompted the longest demonstrations in Serbian history. From 18 November 1996 to 15 February
1997, demonstrators marched every evening in Belgrade, in Novi Sad, in Niš, and other cities. For
91 winter days there were tens of thousands of people on the streets, and on some of these days the
number reached hundreds of thousands in Belgrade alone.
8. These demonstrations earned worldwide sympathies. To cite just a few examples, ITN
Television News reported on 24 December 1996: “more than 3,000 demonstrators crowded into
Belgrade’s Republic Square to protest against Slobodan Milošević. This was the largest - 14 -
1
pro-democracy rally so far.” Describing the protesters, the New York Times stated on
30 December 1996: “Almost all of them say that they are motivated by the need for a shift from
2
dictatorship to democracy.”
9. The Government was compelled to recognize opposition victories. After this, on
21 February 1997, Mr. Zoran ðinñic, became mayor of Belgrade. Mr. ðinñić was one of the key
opposition leaders, who later became Prime Minister of Serbia until his assassination in 2003.
10. Novi Sad, Niš, and other major cities were also taken over by the opposition.
Mr. Milošević was still running the country, but the anti-Milošević opposition took control of many
local governments, and an “Alliance of Free Cities” was formed.
11. Mr. President, Members of the Court, these free cities in which the opposition took
control in the spring of 1997 became the main targets of NATO bombing in the spring of 1999.
12. The destruction reached all segments of the population. In Belgrade bombs hit the
3 4
hospital “Dragiša Mišović” killing four persons , they hit the city heating plant killing one person ,
and hit many more targets resulting in death or wounding of innocent persons.
5
13. Bombs hit the Chinese Embassy, killing three and wounding 20 people . The attack on
the embassy of a sovereign country, which had nothing to do with the conflict, prompted
worldwide protests.
14. Among other attacks, NATO bombers have deliberately targeted the Belgrade Television
(“RTS”), killing 16 people . These people had nothing to do with the propaganda which was the
alleged pretext for the destruction. Those who have, indeed, been the creators of a propaganda
aimed against the Serbian opposition and others, were not in the building. In justifying their action,
NATO officials stated that warning was given. NATO Commander General Wesley Clark
explained: “[t]he truth was that that first of all, we gave warnings to Milošević that that [the
1
ITN Television News, 24 December 1996, 18:57.
2New York Times, 31 December 1996, p. A10.
3See Memorial, para. 1.1.56.1, and Annex NATO Crimes in Yugoslavia II, p. 246.
4
See Memorial, para. 1.1.10.4, and Annexes Nos. 72, 73, 74.
5
See Memorial, para. 1.1.43.2, and Annexes Nos. 94, 95.
6See Memorial, para. 1.1.29.1, and Annex NATO Crimes in Yugoslavia I, p. 343. - 15 -
Belgrade television building] was going to be struck. I personally called the CNN reporter and had
7
it set up so that it would be leaked, and Milošević knew.”
15. This may be true, but why was it Mr. Milošević who was warned? Why not the public,
why not the Serbian people? If there were strategic reasons not to disclose in advance the intended
attack, the Government against which the whole operation was directed should have been the last,
not the first to be informed.
16. The International Federation of Journalists condemned the bombing of the RTS in clear
and strong terms. It stated: “Hundreds of reporters, writers and broadcasting staff opposed to
government manipulation of media are put at risk by this bombing. Killing journalists and media
staff never wins wars or builds democracy, it only reinforces ignorance, censorship and fear.” It
was added: “NATO’s action severely compromises the fight for freedom of the press and free
expression not just in Europe, but world-wide.” 8
9
17. Mr. President, in Novi Sad, all bridges over the Danube were destroyed , people had to
commute between two parts of the city in boats as in medieval times. The Novi Sad TV station
10
producing programmes in five languages was completely destroyed .
18. In Niš, NATO bombers used cluster bombs. Among the targets hit was a clinic , a 11
12 13 14
market , a tobacco factory , a synagogue . In the centre of the town cluster bombs killed
15
13 people .
19. According to a study by the ICRC, “NATO forces have made extensive use of cluster
bombs during the conflict in Kosovo . . .” 16 This study explains that a single cluster bomb contains
7General W. Clark responding to questions of journalist Jeremy Scahill, Democracy Now, 26 January 2004,
www.democracynow.org/article.pl?sid=04/01/26/1632224.
8International Federation of Journalists, Media Release, 23 April 1999, by Aidan White, IFJ General Secretary.
9
See Memorial, paras. 1.1.7.2, 1.1.9.2, 1.1.11.5 and 1.1.31.1, Annex NATO Crimes in Yugoslavia I, pp. 233 and
242 and Annexes Nos. 50, 51 and 127.
10See Memorial, paras. 1.1.40.1, 1.1.49.3, 1.1.62.4 and 1.1.65.5; Annexes Nos. 143 and 144, Annex NATO
Crimes in Yugoslavia II, pp. 440 and 441.
11See Memorial, para. 1.1.43.1 and Annex NATO Crimes in Yugoslavia II, p. 118.
12
See footnote 14, above.
13
See Memorial, paras. 1.1.11.7, 1.1.25.1, 1.1.28.4 and 1.1.66.3; as well as Annex NATO Crimes in Yugoslavia I,
pp. 366 and 223, and Annex NATO Crimes in Yugoslavia II, p. 502.
14
See Annex NATO Crimes in Yugoslavia II, p. 305.
15
See footnote 14, above. - 16 -
147 bomblets, and one single bomblet shatters into 2,000 pre-shaped fragments over a radius of
30-40 metres. NATO used 1,392 cluster bombs in Kosovo only, containing more than
17
200,000 bomblets . Unexploded bomblets still represent a danger, to children in particular. The
ICRC study also stresses that:
“None of the cluster bomblets used in Kosovo is known to have incorporated
self-destruction mechanism in its manufacture, even though cost in comparative terms
of this would have been fairly negligible, and would ha18 significantly increased
post-conflict protection of the civilian population.”
20. Mr. President, the policies of Mr. Milošević may have yielded isolation, but the citizens
of Serbia and Montenegro were not isolated in their grief and protest. In a restrained but clear
wording, Amnesty International stated on 6 June 2000: “Amnesty International believes that
whatever their intentions NATO forces did commit serious violations of the laws of war leading
19
in a number of cases to the unlawful killings of civilians.”
21. Mr. President, there are two key phrases used repeatedly as slogans by NATO officials
and spokespersons, which phrases purported to justify the bombing of Serbia and Montenegro and
its consequences. These phrases are: “humanitarian intervention” and “collateral damage”. But
these justifications have not been accepted they have rather been rejected. They have been
rejected in particular by those who are, indeed, in charge of formulating and implementing
international humanitarian policies.
22.The position taken by the Commission on Human Rights of the United Nations Economic
and Social Council is crystal clear. In the judges’ folder in tab 2, page 3, you may find a quotation
from the resolution prompted by the bombing of Serbia and Montenegro and adopted on
20 August 1999. In this resolution the Commission on Human Rights:
“Expresses its firmest conviction that the so-called ‘duty’ and ‘right’ to carry
out ‘humanitarian intervention’ in particular by means of the threat or use of force, is
juridically totally unfounded under current general international law and consequently
16
Cluster Bombs and Landmines in Kosovo, ICRC-Mines-Arms Unit, Geneva August 2000, revised June 2001,
p. 6.
1Ibidem, p. 6.
1Ibidem, p. 9.
19
Amnesty International, “Collateral Damage” or Unlawful Killings? AI Index: EUR 70/018/2000, 6 June. - 17 -
cannot be considered as a justification for violat20ns of the principles enshrined in
Article 2 of the Charter of the United Nations.”
23. Let us add that according to a probably conservative estimate given by Human Rights
Watch, NATO actions yielded 500 civilian deaths, and roughly half of these casualties are
attributable to conduct that violated international humanitarian law . 21
24. Speaking of the effects of the bombing, Mr. Jiri Dienstbier, Special Rapporteur of the
United Nations Commission on Human Rights for the Former Yugoslavia, stressed:
“One year after the beginning of the bombing campaign in Yugoslavia it is
becoming increasingly clear to an ever larger number of people who are dealing with
the conflict or who are, one way or another, participating in it, that the bombs and
Tomahawks did not resolve the problems but rather made them bigger, and even
22
created new ones.”
The latest wave of violence against the Serbian population in Kosovo in March this year can only
confirm these words.
25. Mr. President, Members of the Court, losses of lives cannot be effectively disguised by
the use of labels like “collateral damage”, the euphemism used repeatedly by NATO officials and
spokespersons. Turns of phrase cannot make tragedies less real.
26. On 4 May 1999, Mary Robinson, United Nations High Commissioner for Human Rights
stated in no uncertain terms:
“If it is not possible to ascertain whether civilian buses are on bridges, should
those bridges be blown? These are very important questions because people are not
collateral damage, they are people who are killed, injured, whose lives are destroyed,
and we are very concerned . . .” 23 (Emphasis added.)
II. THE ISSUE OF JURISDICTION IN THE LIGHT OF THE DISSOLUTION OF Y UGOSLAVIA
II.1. Serbia and Montenegro did not discontinue the proceedings
27. Mr. President, Members of the Court, at this juncture of the proceedings, our focus is on
jurisdiction. Let me first say here, that our Written Observations of December 2002 are not a
notice of discontinuance as it was alleged by most Respondents in their letters commenting on our
20
See the text of the resolution of 19 August 1999 in UN doc. E/CN.4/Sub.2/1999/L.12/Rev.1. This resolution
was adopted on 20 August 1999 (UN doc. E/CN.4/Sub.2/1999/SR.25).
21
Human Rights Watch Report, “Civilian Deaths in the NATO Air Campaign”, February 2000. See “Summary:
Principal Findings, International Humanitarian Law and Accountability” http://www.hrw.org/reports/2000/nato.
2J. Dienstbier, “Little to Write Home About”, Transitions on Line, 3 May 2000,
http://archive.tol.cz/may00/downbutn.html.
2“NATO Warned on War Crimes” by Steve Boggan, The Independent, 5 May 1999. - 18 -
24
submission . These Observations cannot be treated as such, and, indeed, they have not been
treated as such.
28. During these oral hearings, a number of other theories have also been suggested by
colleagues representing the Respondent. The argument was made that Serbia and Montenegro
actually meant something other than what it specifically said. Belgium suggested that the FRY
proposed some sort of an agreement on jurisdiction or rather on the lack of it and that
because of this the Court should “simply remove the case from its List” . Italy’s theory is that the
26
object of the dispute has vanished . The Netherlands asserted that an agreement came about on
the absence of dispute . The theory advanced by Germany is that the FRY renounced its right to
28
pursue its claim , while France submitted the hypothesis, that a “reverse forum prorogatum” took
29
place . On ground of these theories, most Respondents would like to achieve the removal of the
case from the List, without an actual judgment on jurisdiction. These theories have not been
substantiated.
29. Mr. President, the Rules of Court are perfectly clear. Only discontinuance may yield a
removal of a case from the List without a judgment on jurisdiction or on the merits, and this is only
possible on the basis of Articles 88 and 89 of the Rules. Article 88 establishes the prerequisites of
discontinuance by joint action, while Article 89 defines discontinuance by one party. According to
Article 88, discontinuance only takes place if the parties “[e]ither jointly or separately, notify the
Court in writing that they have agreed to discontinue the proceedings . . .”. This clearly did not
take place.
30. The only possible form of discontinuance by one party is defined in Article 89 of the
Rules of the Court which contemplates the situation when “[t]he applicant informs the Court in
writing that it is not going on with the proceedings . . .”. This did not happen either. In our Written
24
The Netherlands, in its letter to the Court of 16 January 2003, Italy, in its letter to the Court of 16 January 2003,
the United Kingdom, in its letter to the Court of 17 January 2003, France, in its letter to the Court of 19 February 2003,
and Germany, in its letter to the Court of 26 February 2003.
25
See verbatim record of public sitting held on Monday 19 April, CR 2004/6, oral presentation of Mr. Bethlehem.
paras. 2,7 and 10.
26
See verbatim record of public sitting held on Tuesday 20 April, CR 2004/13, paras. 12 and 65.
27
See verbatim record of public sitting held on Monday 19 April, CR 2004/7, para. 14.
28See verbatim record of public sitting held on Tuesday 20 April, CR 2004/11, paras. 37-39.
29See verbatim record of public sitting held on Tuesday 20 April, CR 2004/12, para. 18. - 19 -
Observations of 18 December 2002, we did not inform the Court that we are not going on with the
proceedings, nor did we say anything similar. To the contrary, we have requested the Court to
decide on the issue of jurisdiction.
31. The respondent States have made specific reference to Article 89 . Had this been a
notice of discontinuance under Article 89 of the Rules, the Court would have fixed a time-limit
within which the Respondents would have stated whether they opposed the discontinuance of the
proceedings. The Court did not proceed under Article 89. It did not, because there was no notice
of discontinuance.
32. Mr. President, since during the past days a number of theories were advanced explaining
what did we actually mean although we did not say so, allow us to state ourselves what we actually
said and meant to say.
33. What the new Government of the FRY now Serbia and Montenegro did, was to
investigate the legal status of the FRY in the light of a dramatic event for our country, the
admission to the United Nations as a new Member. In our December 2002 written submission, we
submitted to the Court our observations, regarding the perspectives opened by this event, assuming
that they have a relevance with regard to issues of jurisdiction. This explains the format and the
subject-matter of this submission. We explained in the introductory sentence that
“The Federal Republic of Yugoslavia is supplementing its earlier
communications on the ground of newly discovered facts which have emerged since
earlier pleadings were filed. These facts have been revealed in the light of the
acceptance of the Federal Republic of Yugoslavia as a new Member of the United
Nations on 1 November 2000.”
This was the first sentence of our written submission.
34. We did not adapt or modify these observations, depending on whether we were in the
position of the Applicant or in the position of the Respondent. We did not manipulate, we
submitted the same findings in all our cases before this honourable Court.
35. Mr. President, the position of the FRY with regard to international organizations and
treaties has been a most intricate and controversial matter. Only a decision of this Court could
bring clarity. We thought that the clarifications, which followed the admission of the FRY to the
3See the letters of the United Kingdom, the Netherlands and Germany cited in footnote 24. - 20 -
United Nations as a new Member, had a bearing on jurisdiction, and we have brought to the
attention of the Court our perception of the legal consequences of this new perspective. We
submitted premises asking the Court to decide whether it had or did not have jurisdiction. This is
not discontinuance.
36. We do not see either how the estoppel theory could come into play under the given
circumstances. The identification of possible legal conclusions, which follow from the fact of
admission to the United Nations, is hardly the type of activity which could yield estoppel.
Furthermore, legal preconditions like detriment and reliance have not been demonstrated.
37. Mr. President, let me make it once more clear: the applicant State wants the Court to
continue the case and to decide upon its jurisdiction and to decide on the merits as well, if it has
jurisdiction.
38. Let me add, Mr. President, that we are aware of the fact that there are issues pertaining to
jurisdiction disputed between the Parties, other than those referred to in our 18 December 2002
submission. The Respondents have raised objections regarding jurisdiction ratione materiae and
ratione temporis as well, and we shall take a clear position with respect to these issues confronting
the allegations of the Respondents.
II.2 The position of the FRY between 1992 and 2000 from the present perspective
39. Mr. President, Members of the Court, let me put before you in all frankness the position
in which Serbia and Montenegro found itself. The main protagonists of the conflicts of the past
decade, those who initiated the disputes or against whom the lawsuits were initiated, are not on the
scene anymore. The driving force and heated emotions have subsided, but the disputes have not
vanished. Within Yugoslavia, the lawsuits have been left to those who had challenged the
protagonists of the conflict, and who eventually prevailed against them. And now, we would
simply like to know where we stand. Only a judgment on jurisdiction could put us on a clear track.
40. Mr. President, our delegation is aware of the fact that the question we have raised and
which has also been raised by the Respondents is not a new one. On a number of occasions this
Court has taken positions regarding the issue as to whether the FRY was bound by the Genocide
Convention and as to whether it was a party to the Statute between 1992 and 2000. These positions - 21 -
deserve due esteem. We are respectfully submitting that the present procedural setting is different
from that in which earlier decisions were rendered. Also, in this case there are less constraints and
more information is available. This is why we are asking the Court to undertake a definitive
investigation, and to establish conclusively the position of the FRY in relation to the Statute and the
Genocide Convention between 1992 and 2000.
II.2.a. Membership kept by the vehicle of continuity?
41. Mr. President, Members of the Court, let me reiterate once more the pertinent facts. It is
well known that the former Government of the FRY asserted that the FRY continued the
international legal personality of the former Yugoslavia, that it had accordingly remained a
Member of the United Nations and of other international organizations, and that it had remained
bound by treaties to which the former Yugoslavia was a party. This position was fervently
contested by all States which are now opposed to Serbia and Montenegro before this Court. It was
contested before the United Nations, before various other international organizations, and at
meetings of State parties to treaties; the contestation was consistent and effective.
42. Mr. President, the FRY wanted membership and insisted on continuity as the foundation
of membership. For this reason, the former Government of the FRY made declarations
emphasizing continuity, but in order not to contradict a top policy priority it carefully and
consistently avoided submitting notifications of succession or accession, just as it avoided seeking
admission to the United Nations or to other international organizations, since this would have
contradicted the proposition of continuity.
43. As it is well known, this endeavour remained unsuccessful. Between 1992 and 2000, one
after another, international organizations declared that the FRY could not continue the membership - 22 -
of the former Yugoslavia, and that it should apply for membership as other successor States did, if
it wished to become a Member . 31
44. State parties to treaties took the same position, and rejected the claim of the FRY to be
32
recognized as a State party on ground of continuity. The pattern was constant .
45. This is why, Mr. President, just a few days after the Serbian opposition prevailed against
Mr. Milošević, Mr. Koštunica, the newly elected President of the FRY, opted to end the persistent
stalemate. He wanted the FRY to become a member of the international community with equal
rights. He took note of the fact that the FRY was unable to enjoy membership rights in either the
United Nations, or in international organizations, or in treaties on the ground of the proposition of
continuity. In order to find a way out of the impasse and to acquire membership and membership
rights, President Koštunica applied for admission to the United Nations. The application was
submitted on 27 October 2000. Following a procedure of admission of new Members, the FRY
33
was admitted as a new Member on 1 November 2000 .
46. Following this, the FRY applied for membership in international organizations, and was
accepted as a member. Furthermore, in a letter of 8 December 2000, the Legal Counsel invited the
FRY to “[u]ndertake treaty actions, as appropriate, in relation to the treaties concerned, if its
34
intention is to assume the relevant legal rights and obligations as a successor State” . The FRY
opted to succeed to most conventions to which the former Yugoslavia was a State party. With
31
GATT: See the record of the meeting of the Council on 16-17 June 1993 C/M/264; Unesco: See the list of
Unesco Member States as of 1 October 2003, Note 4. http://erc.unesco.org/cp/MSList_alpha.asp?lg=E; IMF: See IMF
Press Release No. 92/92, 15 December 1992; World Bank: See World Bank, Socialist Federal Republic Of Yugoslavia
Termination of Membership and Succession to Membership, Executive Directors’ resolution No. 93-2,
(25 February 1993); see also World Bank Press Release No. 93/S43 (26. February 1993); WHO: See the resolution WHA
46.1, 3 May 1993; IMO (International Maritime Organization): See IMO resolution C.72(70), 18 June 1993; ILO: See
Participation of the Federal Republic of Yugoslavia in the 81st session(1994) of the International Labour Conference,
Official Bulletin, Vol. LXXVII, Series A, 1994, p 166; International Atomic Energy Agency (IAEA): See IAEA General
Assembly resolution GC (XXXVI)/RES/576; International Civil Aviation Organization (ICAO): ICAO resolution
A 29-2, 25 September 1992.
32This claim was rejected by State Parties to the Convention on the Rights of the Child (UN doc. CRC/SP/SR.7),
the Convention on the Elimination of All Forms of Racial Discrimination (UN doc. CERD/SP/SR.24), the Convention
Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (UN doc. CAT/SP/SR.7), the
International Covenant on Civil and Political Rights (UN doc. CCPR/SP/SR.18), the Convention on the Elimination of
Discrimination against Women (UN Press Release WOM/732 dated 7 February 1994), and in many other instances.
33
See Report of the Committee on the Admission of New Members concerning the application of the Federal
Republic of Yugoslavia for admission to membership in the United Nations: UN doc. S/2000/1051; Security Council
resolution 1326 (2000) UN doc. S/RES/1326 (2000) and General Assembly resolution 55/12 (2000) UN
doc. A/RES 55/12.
34The Letter of the Legal Counsel of the United Nations addressed to the Minister for Foreign Affairs of the
Federal Republic of Yugoslavia, dated 8 December 2000. - 23 -
respect to some treaties, including the Genocide Convention, the FRY opted not to succeed.
Instead, as a new Member of the United Nations, relying on a possibility offered under Article XI
of the Genocide Convention to all Members of the United Nations, the FRY decided to accede to
this Convention.
47. Mr. President, let us take a look from the present vantage point at the issue of the status
of the FRY between 1992 and 2000. This issue was shaped by inconsistent reactions to
unpredictable developments and it was brought before this Court before the necessary
elucidations would or even could have been made. The critical facts and events which may be
judged today from a better position, are the following.
48. Continuity and membership rights on ground of continuity were rejected. In
September 1992, the General Assembly rejected this claim and stated that the FRY it has been
quoted often and I am quoting it again “cannot continue automatically the membership of the
former Socialist Federal Republic of Yugoslavia in the United Nations” . 35 Thereby a basic
position was taken. However, given the highly unconventional set of circumstances, some
ambiguities and hesitations had persisted for a considerable period.
49. International organizations and State parties to treaties rejected the claim to membership
on the ground of continuity, but depositaries kept references to “Yugoslavia” as a member of
international organizations or as a party to international agreements. The United Nations continued
to treat “Yugoslavia” as a country which owed membership dues. The Legal Counsel stated that
36
resolution 47/1 “neither terminates nor suspends Yugoslavia’s membership in the Organization” .
It was only in 2002 that conclusive clarifications were given by the United Nations authorities.
50. Mr. President, Members of the Court, between 1992 and 2000, the question arose to
which country did the designation “Yugoslavia” refer? The question remained without a clear
answer for too long. Today, however, there are no more ambiguities with regard to the question
whose membership was “neither terminated nor suspended”, and which “Yugoslavia” remained
listed as a party to treaties and a member of international organizations.
3Resolution 47/1 of 22 September 1992 UN doc.A/RES/47/1.
3Letter of the Legal Counsel of 29 September 1992 UN doc. A/47/485. - 24 -
51. An explicit position was taken by the very same authority from which the controversial
formulation emanated. The present version of Historical Information on Multilateral Treaties
makes it clear and explicit that “Yugoslavia” to which the Legal Counsel referred in his letter of
September 1992, was the former Yugoslavia. This clarifying word was not included in the original
1992 letter, but now, in the Historical Information, it is stressed: “The Legal Counsel took the
view, however, that this resolution [resolution 47/1] of the General Assembly neither terminated
37
nor suspended the membership of the former Yugoslavia in the United Nations.” (Emphasis
added.)
52. This has also been confirmed directly by the Secretary-General. After the FRY applied
for membership in 2000 and was accepted as a new Member of the United Nations the
situation created by resolution 47/1 was clarified. In his letter dated 27 December 2001 to the
President of the General Assembly, Secretary-General Kofi Annan stated and you may follow
this in tab 3 of the judges’ folders:
“I have the honour to refer to General Assembly resolution 55/12 of
1 November 2000, in which the Assembly decided to admit the Federal Republic of
Yugoslavia to membership in the United Nations.
This decision necessarily and automatically terminated the membership in the
38
Organization of the former Yugoslavia, the State admitted to membership in 1945.”
(Emphasis added.)
53. The Secretary-General made it thus finally clear that “Yugoslavia”, the membership of
which was neither terminated nor suspended, and which was listed as a party to treaties, was the
former Yugoslavia, not the FRY.
II.2.b. Membership acquired by the vehicle of a sui generis position vis-à-vis the UN?
54. Mr. President, Members of the Court, it is now clear that the FRY did not remain bound
by treaties, and did not remain a Member of the United Nations and of other international
organizations on ground of continuity. The FRY did not continue the membership or treaty
3See Historical Information, http://untreaty.un.org/ENGLISH/bible/englishinternetbible/historicalinf… –
under the heading “former Yugoslavia”.
38
See the letter dated 27 December 2001 from the Secretary-General addressed to the President of the General
Assembly, UN doc. A/56/767. - 25 -
position of the former Yugoslavia. It has also become clear that “Yugoslavia”, the membership of
which was formally not terminated, was the former Yugoslavia.
55. This leads to the following question: If the FRY was not a party to treaties by way of
continuing treaty membership of the former Yugoslavia, the question still arises whether the FRY
could have acquired the status of a party to treaties and the status of a member of international
organizations between 1992 and 2000.
56. Mr. President, as we heeded the admission of the FRY to the United Nations in our
Written Observations, we also have to give due consideration to the 3 February 2003 Judgment of
the Court. This honoured Court held that the FRY found itself in a sui generis position vis-à-vis
the United Nations. This opens a new perspective. In its Judgment of 3 February 2003 the Court
stated: “[R]esolution 47/1 did not inter alia affect the FRY’s right to appear before the Court or to
be a party to a dispute before the Court under the conditions laid down by the Statute. Nor did it
affect the position of the FRY in relation to the Genocide Convention.” (Para. 70.)
57. This is certainly true. The FRY came into being on 27 April 1992. Unlike other
successor States, it asserted membership in the United Nations by submitting a claim to continuity
with the former Yugoslavia. This claim was, however, rejected by resolution 47/1. The resolution
did not endow the FRY with any standing. Whatever the position of the FRY was vis-à-vis the
United Nations, the Statute or the Genocide Convention, this was not affected by resolution 47/1
as the Court noted. The question remained open.
58. The Court also states in its 3 February 2003 Judgment that:
“[G]eneral Assembly resolution 55/12 of 1 November 2000 cannot have
changed retroactively the sui generis position which the FRY found itself in vis-à-vis
the United Nations over the period 1992 to 2000, or its position in relation to the
Statute of the Court and the Genocide Convention.” (Para. 71; emphasis added.)
This is again a convincing conclusion. The sui generis position which the FRY had vis-à-vis
the United Nations, and its position in relation to the Statute and the Genocide Convention
(whatever the nature of these positions was) could not have been changed retroactively by
admission of the FRY to the United Nations. Such admission may have possibly shed a different
light on the said position, but it could not have changed it retroactively. The question remains what - 26 -
was the nature, and what were the consequences of this sui generis position between 1992 and
2000.
59. Mr. President, the sui generis position of the FRY was not analysed in the 1996
Judgment on jurisdiction in the Bosnia-Herzegovina v. Yugoslavia case, because the conditions
were not given and the treaty status of the FRY was not contested. At that time, resolution 47/1
(which left the question open) was still the main source of information. As it was stated in the
3 February 2003 Judgment:
“[t]he Court notes that the admission of the FRY to membership of the United Nations
took place more than four years after the Judgment which it is seeking to have revised.
At the time when that Judgment was given, the situation obtaining was created by
General Assembly resolution 47/1.” (Para. 70.)
60. The sui generis position of the FRY was not analysed in the 2003 Judgment either, since
such a scrutiny would have been obviously beyond the scope of the first phase of Article 61
proceedings upon an application for revision. The language used by the Court in the 2003
Judgment is prudent, staying within the limits of the purpose of the given procedural setting. The
Court does not speak of a sui generis position “in” the United Nations. It rather speaks of a sui
generis position vis-à-vis the United Nations. Likewise the Court speaks of the position of the
FRY “in relation to” the Statute and the Genocide Convention.
61. Now and within the setting of this case, a fresh look at the status of the FRY has become
possible on the basis of the new information, and without the limitations of Article 61 proceedings.
62. The issue is the following. It has been established that the FRY did not continue the
personality of the former Yugoslavia. It has also been established that references to “Yugoslavia”
the membership of which “was neither terminated nor suspended” were references to the former
Yugoslavia. The remaining question is whether the FRY became a party to the Statute and to the
Genocide Convention between 1992 and 2000 and if it did, how did this take place.
63. The sui generis position of the FRY vis-à-vis the United Nations is an important element
of the analysis. Accepting that the FRY without continuing the personality of the former
Yugoslavia acquired a sui generis position vis-à-vis the United Nations, the key question is
whether this sui generis position vis-à-vis the United Nations could have provided the link between - 27 -
the new State and international treaties the Statute and the Genocide Convention in particular.
This is the question which requires a definitive answer.
64. Mr. President, Members of the Court, the NATO bombing completed the cycle of
violence within the former Yugoslavia. Serbia and Montenegro is now facing huge challenges in
finding the proper direction after an unfortunate decade. The cases pending before this Court
represent a most important segment of these challenges. We need to know whether the turbulent
period behind us yielded proper procedural prerequisites for continuing these disputes. A judgment
on jurisdiction based on the elucidation of the position of the FRY between 1992 and 2000 could
create an anchor point of orientation. Thus Serbia and Montenegro has a clear legal interest in the
rendering of a judgment on jurisdiction.
65. We understand that the sequence of events in the former Yugoslavia during the last
decade defied established patterns and ignored rules and expectations. Problems reached this Court
while clarifications were still awaited. We understand that it is a momentous task to establish
consistency and justice considering such background. It is our conviction, however, that by now it
has become possible to revisit the conflicting conceptualizations and to put together a clear and
conclusive picture. We have full confidence in the world’s highest judicial authority, and we shall
endeavour to contribute to clarifications in good faith and to the best of our knowledge.
66. Mr. President, Members of the Court, thank you very much for your kind attention and
patience. Before ceding the floor to other speakers, allow me to put forward the schedule of our
presentations:
(i) Our counsel and advocate Mr. Ian Brownlie, Q.C., will demonstrate that objections
regarding jurisdiction ratione materiae under Article IX of the Genocide Convention are
without foundation, or belong to the merits.
(ii) Mr. Brownlie will further demonstrate that the Article 36 declaration as formulated by the
FRY is fit to establish jurisdiction both ratione temporis and ratione materiae.
(iii) Mr. Brownlie will also demonstrate that the objection that the FRY is acting in bad faith is
without foundation and irrelevant. - 28 -
(iv) My colleague and Co-Agent Mr. Vladimir Djerić will speak next, and he will demonstrate
that jurisdiction cannot be denied on ground of the objection that necessary third parties
were missing.
(v) Mr. Djerić will also challenge the objection that the claims are not specified against
individual respondents.
(vi) Mr. Djerić will further deal with the issue of jurisdiction on ground of bilateral
agreements.
(vii) I shall conclude our arguments, and present the submission on the final day of our
presentations
Thank you very much, Mr. President. I would like to ask you now to give the floor to
Mr. Brownlie.
The PRESIDENT: Thank you, Mr. Varady. I now give the floor to Professor Brownlie.
Mr. BROWNLIE: Mr. President, distinguished Members of the Court.
1. It is my responsibility this morning to examine three of the principal issues raised in the
Preliminary Objections. The first issue is the question of jurisdiction ratione materiae in relation to
Article IX of the Genocide Convention; the second is the matter of jurisdiction ratione temporis in
the context of Article 36 of the Statute of the Court, and the third is the application of the 12-month
clause also in the context of Article 36.
Jurisdiction ratione materiae in accordance with Article IX of the Genocide Convention
2. The Preliminary Objections of all the respondent States now before the Court have
contended that there is an absence of jurisdiction ratione materiae in respect of Article IX of the
Genocide Convention, in particular, on the ground that the necessary element of intent has not been
established by the applicant State.
3. As will be demonstrated in due course, this question necessarily involves questions of
merits and the objection does not possess an exclusively preliminary character. In any event, the
findings of the Court at the provisional measures stage of these proceedings, in the words of the
Order in Yugoslavia v. Belgium: “in no way prejudge . . . any questions relating to the - 29 -
admissibility of the Application, or relating to the merits themselves; and whereas they leave
unaffected the right of the Governments of Yugoslavia and Belgium to submit arguments in respect
of those questions . . .” (Order of 2 June 1999 (Yugoslavia v Belgium), para. 46.)
4. In fact the Court made certain provisional determinations as follows:
“Whereas it appears to the Court, from this definition, ‘that [the] essential
characteristic (of genocide) is the intended destruction of ‘a national, ethnical, racial or
religious group’ (Application of the Convention on the Prevention and Punishment of
the Crime of Genocide, Provisional Measures, Order of 13 September 1993, I.C.J.
Reports 1993, p. 345, para. 42); whereas the threat or use of force against a State
cannot in itself constitute an act of genocide within the meaning of Article II of the
Genocide Convention; and whereas, in the opinion of the Court, it does not appear at
the present stage of the proceedings that the bombings which form the subject of the
Yugoslav Application ‘indeed entail the element of intent, towards a group as such,
required by the provision quoted above’ (Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 240, para. 26);
Whereas the Court is therefore not in a position to find, at this stage of the
proceedings, that the acts imputed by Yugoslavia to the Respondent are capable of
coming within the provisions of the Genocide Convention [and therefore Article IX of
the Convention], invoked by Yugoslavia, cannot accordingly constitute a basis on
which the jurisdiction of the Court could prima facie be founded in this case.” (Order
of 2 June 1999 (Yugoslavia v. Belgium, paras. 40-41.)
5. In the first place it is necessary to examine the proposition that the threat or use of force
against a State cannot in itself constitute an act of genocide within the meaning of Article II of the
Genocide Convention. This proposition forms part of the determination of the Court in the various
Orders, as in the Order quoted already.
6. The Court cites a passage from the Nuclear Weapons Advisory Opinion. Therein, after
setting out the provisions of Article II of the Genocide Convention, the Court observed:
“It was maintained before the Court that the number of deaths occasioned by the
use of nuclear weapons would be enormous; that the victims could, in certain cases,
include persons of a particular national, ethnic, racial or religious group; and that the
intention to destroy such groups could be inferred from the fact that the user of the
nuclear weapon would have omitted to take account of the well-known effects of the
use of such weapons.
The Court would point out in that regard that the prohibition of genocide would
be pertinent in this case if the recourse to nuclear weapons did indeed entail the
element of intent, towards a group as such, required by the provision quoted above. In
the view of the Court, it would only be possible to arrive at such a conclusion after
having taken due account of the circumstances specific to each case.” (I.C.J.
Reports 1996, p. 240, para. 26.) - 30 -
7. In my submission, the passage from the Advisory Opinion is to be construed with
considerable caution. The Court is careful to emphasize that account must be taken “of the
circumstances specific to each case”. In the light of this qualification, to suggest that the use of
force against a State “cannot in itself constitute an act of genocide” does not provide any real
assistance.
8. I can now turn to the issue of intent. The relevant text is Article II of the Convention
which defines genocide as:
“any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part.”
And there are some other paragraphs that don’t concern us at the moment.
9. First of all there are some preliminary questions concerning methods of proof. In Akayesu
the ICTR Trial Chamber stated that intent can be inferred from presumptions of fact (case
No. ICTR-96-4-T, para. 523). This must surely be correct as a matter of general principle. Thus,
various forms of systematic ill-treatment may constitute evidence of the requisite intent. Thus, it
has been held that forcible expulsions may provide evidence of the requisite intention. And, if
forcible expulsions may constitute evidence of intention, then a systematic air offensive lasting
78 days and causing internal refugee flows may constitute appropriate evidence. These
considerations support the conclusion that there is here a prima facie case of genocide.
10. The examples of forms of requisite evidence lead on to the larger issues of legal
principle. The first such issue is the definition of the protected group, and the available
jurisprudence provides some assistance in this respect. Thus in Akayesu the Trial Chamber
regarded the identification of a protected group as primarily a question of fact.
11. This fairly pragmatic approach has been adopted in other decisions, including decisions
of the ICTY. Thus the Trial Chamber in the Krstic case states that:
“A group’s cultural, religious, ethnical or national characteristics must be
identified within the socio-historic context which it inhabits. As in the Nikolic and - 31 -
Jelisic cases, the Chamber identifies the relevant group by using as a criterion the
stigmatisation of the group, notably by the perpetrators of the crime, on the basis of its
perceived national, ethnical, racial or religious characteristics.” (Para. 557.)
12. Finally in Rutaganda the Trial Chamber of the ICTR (case No. ICTR-96-3-T) observed
that:
“56. The Chamber notes that the concepts of national, ethnical, racial and
religious groups have been researched extensively and that, at present, there are no
generally and internationally accepted precise definitions thereof. Each of these
concepts must be assessed in the light of a particular political, social and cultural
context. Moreover, the Chamber notes that for the purposes of applying the Genocide
Convention, membership of a group is, in essence, a subjective rather than an
objective concept. The victim is perceived by the perpetrator of genocide as
belonging to a group slated for destruction. In some instances, the victim may
perceive himself/herself as belonging to the said group.
57. Nevertheless, the Chamber is of the view that a subjective definition alone is
not enough to determine victim groups, as provided for in the Genocide Convention.
It appears, from a reading of the travaux préparatoires of the Genocide Convention,
that certain groups, such as political and economic groups, have been excluded from
the protected groups, because they are considered to be ‘mobile groups’ which one
joins through individual political commitment. That would seem to suggest
a contrario that the Convention was presumably intended to cover relatively stable
and permanent groups.
58. Therefore, the Chamber holds that in assessing whether a particular group
may be considered as protected from the crime of genocide, it will proceed on a
case-by-case basis, taking into account both the relevant evidence preferred and the
political and cultural context as indicated supra.”
13. These concepts must now be applied to the case in hand. But what is the case in hand?
In the submission of Serbia and Montenegro the case involves the use of the threat of force, and
eventually the use of force, to coerce the Yugoslav Government to accept the demands made at
Rambouillet by the NATO delegations. The strategy adopted by the NATO States was to coerce
the State of Yugoslavia into accepting specific demands and to do this by destroying the
infrastructure and a wide range of targets.
14. The Commander-in-Chief of the NATO forces, General Wesley Clark, made a public
statement of the aim of the attack: “We’re going to systematically and progressively attack,
disrupt, degrade, devastate, and ultimately, unless President Milosević complies with the demands
of the international community, we’re going to completely destroy his forces and their facilities and
support.” (BBC News, http://news.bbc.co.UK/English/static.NATOgallery/air default.stm/
14 May 1999). - 32 -
15. The air offensive caused many civilian casualties and resulted in severe hardships
including internal refugee flows caused by the fear of bombing. The protected group in the present
case, for the purposes of Article II of the Genocide Convention, can easily be identified. It was the
population of Serbia and Montenegro. In Akayesu the Trial Chamber observed: “[A] national
group is defined as a collection of people who are perceived to share a legal bond based on
common citizenship, coupled with reciprocity of rights and duties.” (Judgment, para. 512.)
16. In his Fourth Report to the International Law Commission on the Draft Code of Offences
against the Peace and Security of Mankind, Mr. Doudou Thiam, in the context of genocide, stated
that:
“A national group often comprises several different ethnic groups, States which
are perfectly homogeneous from an ethnic point of view are rare. In Africa, in
particular, territories were divided without taking account of ethnic groups, and that
has often created problems for young States shaken by centrifugal movements which
are often aimed at ethnic regrouping. With rare exceptions (Somalia, for example)
almost all African States have an ethnically mixed population. On other continents,
migrations, trade, the vicissitudes of war and conquests have created such mixtures
that the concept of the ethnic group is only relative or may no longer have any
meaning at all. The nation therefore does not coincide with the ethnic group but is
characterised by a common wish to live together, a common ideal, a common goal and
common aspirations.” (ILC Yearbook, 1986, Vol. II, Part One, p. 60, para. 57.)
17. The evidence available shows that the bombing affected the populated areas of the whole
of Serbia and Montenegro. The NATO statements make it clear that it was the population as a
whole, that is, all nationals of the State of Yugoslavia, which formed the target group to be
intimidated.
18. Serbia and Montenegro has submitted ample evidence of the human and material losses
caused by the sustained bombardment with sophisticated ordnance, and the evidence is set forth
extensively in the Memorial. The evidence presented by Yugoslavia of the bombing and its effects
permits a number of inferences relevant to the constituents of genocide, including “deliberately
inflicting on the group conditions of life calculated to bring about its physical destruction in whole
or in part”.
19. In our submission, such inferences include the following:
First: the widespread pattern of civilian deaths and injuries caused in horrific circumstances.
Second: the high explosive power and blast effects of sophisticated missiles. - 33 -
Third: the extent of the destruction in urban areas, including administrative buildings and
bridges.
Fourth: the deliberate destruction of the chemical plants at Pancevo and elsewhere, and the
resulting major fires and heavy air pollution.
Fifth: the destruction of water storage and supply facilities.
Sixth: extensive damage to the healthcare system and the creation of risks to patients by
power cuts.
Seventh: the extensive use of cluster munitions, which as NATO spokesmen stated, are not
precise munitions. The data are provided in the report published by the ICRC Mine Arms Unit, the
revised edition, published in June 2001.
Eighth: the extensive use of depleted uranium ammunition, which has long-lasting
carcinogenic effects.
20. Mr. President, these tactics, and these weapons, were not used in a ground war, they were
used in a bombing campaign with the stated purpose of intimidating the people of Yugoslavia, and
its Government, as a group, as a national unit. In such circumstances, which targets could be
military targets? Targets can only be defined in relation to purpose and the purpose was
intimidation. In other words, the purpose was precisely to cause “serious bodily or mental harm to
members of the group”, to use the language of the Genocide Convention.
21. When the statements of British Ministers are studied it will be seen that the purpose of
the air operations envisaged was not military, but was to force compliance with the demands of the
Contact Group. The bombing campaign was the necessary result of the need to implement threats,
which had not succeeded.
22. I shall now move to the final sequence of my argument that the bombing campaign
constituted genocide, in any event on a prima facie basis and for purposes of jurisdiction. It is
accepted on all sides that the Genocide Convention requires a specific form of intention. It is
necessary to prove an intention to destroy a national group “as such”. The question of the existence
of genocide and the pertinent intent should be determined by reference to the specific
circumstances, as the Court stipulated in the Nuclear Weapons Advisory Opinion. - 34 -
23. What then are the circumstances? The position is that the group of NATO States using
the threat of force, and, ultimately, an aerial bombardment of targets throughout Serbia and
Montenegro, had the objective of intimidating Yugoslavia and its nationals into accepting the
demands made during the Rambouillet talks.
24. Mr. President, the methods employed can be measured against the acts specified in
Article II of the Genocide Convention, that is to say, killing members of the group, and causing
serious bodily or mental harm to members of the group. Research carried out by Human Rights
Watch indicates a total of approximately 500 civilian deaths and 820 civilians injured. And as the
Agent has pointed out, those figures are probably conservative.
25. On 13 October 1998, the North Atlantic Council formally authorized the use of four days
of air strikes followed by a “phased” air campaign in Yugoslavia (Statement of the
Secretary-General of NATO). From then onwards threats were made at regular intervals, and on
30 January 1999 the North Atlantic Council agreed that the Secretary-General could authorize air
strikes against targets in Yugoslavia (Statement to the Press by Javier Solana on 30 January 1999).
The Secretary-General of NATO repeated the threat of force his choice of words on
23 February 1999.
26. The NATO enterprise had three segments: the Rambouillet demands; the continuing
threat of a bombing campaign to enforce those demands; and, when the threats failed, the massive
and sustained aerial offensive, targeting towns throughout Serbia and Montenegro.
27. In any event the principle of effectiveness in matters of treaty interpretation must surely
apply to the Genocide Convention, and it would be extraordinary if the requirement of intent were
not seen to be satisfied when the genocidal consequences were readily foreseeable.
28. Mr. President, before concluding my argument on Article IX of the Genocide
Convention, it is necessary to respond to certain points made on behalf of the respondent States this
week. Counsel for the United Kingdom expressed dismay at the possibility that all military action
should be treated as genocide (CR 2004/10, para. 73). Professor Tomuschat also asserted that
warfare cannot be compared with genocide (CR 2004/11, para. 44).
29. These references to “military action” and to “warfare” are essentially irrelevant. The
bombing campaign was not a part of normal military operations. The “military action” must be - 35 -
assessed alongside the ample evidence of the political purpose of the bombing, which was to coerce
the people and Government of Serbia and Montenegro. The purpose of the coercion was explicitly
formulated in the series of statements I have already referred to, emanating from NATO States.
The people and Government of Serbia were to be forced to accept the political demands of the
Contact group. And as Professor Tomuschat pointed out, the military action ceased when the
demands were accepted.
30. The means of intimidation, the extensive bombing, and the destruction of the
infrastructure, constituted “acts . . . causing serious bodily or mental harm to members of the
group . . .” for the purposes of Article II of the Genocide Convention. And so, in our submission
the prolonged process of coercion of a whole population constitutes prima facie evidence of
genocide.
Article 79 of the Rules of the Court
31. As a sequel to the argument related to the Genocide Convention, it is necessary to invoke
the provisions of Article 79 of the Rules of Court, and, in particular, paragraph 7, which reads:
“After hearing the parties, the Court shall give its decision in the form of a
judgment, by which it shall either uphold the objection, reject it, or declare that the
objection does not possess, in the circumstances of the case, an exclusively
preliminary character. If the Court rejects the objection or declares that it does not
possess an exclusively preliminary character, it shall fix time-limits for the further
proceedings.”
32. It is the submission of Serbia and Montenegro that the issue of jurisdiction ratione
materiae relating to the Genocide Convention is not of an exclusively preliminary character. The
modalities of Article 79, paragraph 7, were explored by the Court in the Lockerbie case
(Preliminary Objections, I.C.J. Reports 1998, pp. 26-29). The Court concluded that the objection
of the United Kingdom according to which the Libyan claims were without object did not have an
exclusively preliminary character. In giving its reasons for this conclusion the Court observed:
“The Court therefore has no doubt that Libya’s rights on the merits would not
only be affected by a decision, at this stage of the proceedings, not to proceed to
judgment on the merits, but would constitute, in many respects, the very
subject-matter of that decision. The objection raised by the United Kingdom on that
point has the character of a defence on the merits. In the view of the Court, this
objection does much more than ‘touch[ing] upon subjects belonging to the merits of
the case’ (Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment
No. 6, 1925, P.C.I.J., Series A, No. 6 p. 15); it is ‘inextricably interwoven’ with the - 36 -
merits (Barcelona Traction, Light and Power Company Limited, Preliminary
Objections, Judgment, I.C.J. Reports 1964, p. 46).
The Court notes furthermore that the United Kingdom itself broached many
substantive problems in its written and oral pleadings in this phase, and pointed out
that those problems had been the subject of exhaustive exchanges before the
Court . . .” (I.C.J. Reports 1998, p. 29.)
33. In the present proceedings also the various Preliminary Objections enter into the issues of
substantive law and facts relating to the definition of genocide and its application in the
circumstances of the present case, including major issues relating to intention, choice of targets and
the nature of the munitions used.
Mr. President, with your agreement, that would be a convenient place for me to stop, if that
is acceptable.
The PRESIDENT: Well indeed, it is time to have a break of ten minutes, after which you
may continue.
The Court adjourned from 11.25 a.m. to 11.35 a.m.
The PRESIDENT: Please be seated. Professor Brownlie, you may continue.
Mr. BROWNLIE: Thank you, Mr. President. I shall now move on to the issues of
jurisdiction ratione temporis.
Jurisdiction ratione temporis
34. The Yugoslav declaration of 25 April 1999 recognizes the jurisdiction of the Court “in
all disputes arising or which may arise after the signature of the present Declaration, with regard to
the situations, or facts subsequent to this signature . . .”
35. It is necessary to apply this form of words to the circumstances of this case. The Court
has consistently adopted the position that the primary criterion of the process of interpretation is the
intention of the declarant government and not a purely grammatical interpretation of the text
(Anglo-Iranian Oil Co., Preliminary Objections, I.C.J. Reports 1952, p. 104).
36. Thus, in the Temple case, the Court made the following observations:
“Such being, according to the view taken by the Court, the position in respect of
the form of declarations accepting its compulsory jurisdiction, the sole relevant - 37 -
question is whether the language employed in any given declaration does reveal a
clear intention, in the terms of paragraph 2 of Article 36 of the Statute, to ‘recognize
as compulsory ipso facto and without special agreement, in relation to any other State
accepting the same obligation, the jurisdiction of the Court in all legal disputes’
concerning the categories of questions enumerated in that paragraph.
In the light of all the foregoing considerations, the Court considers that it must
interpret Thailand’s 1950 Declaration on its own merits, and without any
preconceptions of an a priori kind, in order to determine what is its real meaning and
effect if that Declaration is read as a whole and in the light of its known purpose,
which has never been in doubt.
In so doing, the Court must apply its normal canons of interpretation, the first of
which, according to the established jurisprudence of the Court, is that words are to be
interpreted according to their natural and ordinary meaning in the context in which
they occur.” (Preliminary Objections, Judgment, I.C.J. Reports 1961, p. 32.)
37. It must also follow that the intention of the State concerned must be investigated in the
light of the surrounding circumstances. In this connection the Judgment in the Fisheries
Jurisdiction case (Spain v. Canada) is significant. The Court stated the position in this way:
“In the event, the Court has in earlier cases elaborated the appropriate rules for
the interpretation of declarations and reservations. Every declaration ‘must be
interpreted as it stands, having regard to the words actually used’ (Anglo-Iranian Oil
Co., Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 105). Every
reservation must be given effect ‘as it stands’ (Certain Norwegian Loans, Judgment,
I.C.J. Reports 1957, p. 27). Therefore, declarations and reservations are to be read as
a whole. Moreover, ‘the Court cannot base itself on a purely grammatical
interpretation of the text. It must seek the interpretation which is in harmony with a
natural and reasonable way of reading the text.’ (Anglo-Iranian Oil Co., Preliminary
Objection, Judgment, I.C.J, Reports 1952, p. 104.)
At the same time, since a declaration under Article 36, paragraph 2, of the
Statute, is a unilaterally drafted instrument, the Court has not hesitated to place a
certain emphasis on the intention of the depositing State. Indeed, in the case
concerning Anglo-Iranian Oil Co., the Court found that the limiting words chosen in
Iran’s declaration were ‘a decisive confirmation of the intention of the Government of
Iran at the time when it accepted the compulsory jurisdiction of the Court’ (ibid.,
p. 107).
The Court will thus interpret the relevant words of a declaration including a
reservation contained therein in a natural and reasonable way, having due regard to the
intention of the State concerned at the time when it accepted the compulsory
jurisdiction of the Court. The intention of a reserving State may be deduced not only
from the text of the relevant clause, but also from the context in which the clause is to
be read, and an examination of evidence regarding the circumstances of its preparation
and the purposes intended to be served.” (I.C.J. Reports 1998, p. 454, paras. 47-49.)
38. The Court in the Interhandel case examined the surrounding circumstances, and in the
Temple case (Preliminary Objections), the Court again emphasized that, in order to resolve
contradictions in the terms of a declaration, the Court is entitled to go outside the terms of the - 38 -
declaration and to refer to other relevant circumstances (I.C.J. Reports 1959, pp. 20-22; and I.C.J.
Reports 1961, pp. 33-34, respectively).
39. Of particular significance in this context is the fact that the relevant circumstances may
include considerations of international law. And here a distinction is necessary. The
considerations of law relate to the elucidation of the intention of the declarant State and not to the
issue of legality as such. The distinction is to be seen in the Aegean Sea case, in relation to the
Court’s investigation of the background to the reservations of Greece (I.C.J. Reports 1978,
pp. 28-34, paras. 69-81).
40. Against this background I can move to my argument. My proposition is that the
intention of the declarant government on 25 April 1999 is entirely clear. The wording of the
declaration refers to “all disputes arising or which may arise after the signature of the present
declaration, with regard to the situations or facts subsequent to this signature . . .”.
41. The prior question at this stage is, of course: when did the dispute arise? The respondent
States, as in the case of the United Kingdom, argue as follows:
“The FRY’s acceptance of the jurisdiction is expressly confined to a dispute
which meets two conditions:
(a) the dispute must arise after 25 April 1999; and
(b) the dispute must be with regard to situations or facts subsequent to 25 April 1999.”
And the United Kingdom continues:
“These conditions are cumulative, not alternative. The effect of the formula is,
therefore, that a dispute falls outside the scope of the FRY’s acceptance of the
jurisdiction of the Court if the dispute has arisen prior to 25 April 1999 or even though
the dispute arises after 25 April 1999, if it is a dispute with regard to situations or facts
before that date.” (Preliminary Objections of the United Kingdom, p. 57, paras. 4-29)
42. This version of the position is referred to as the “double exclusion formula”, and thus it is
alleged that the conditions are cumulative, and not alternative. Serbia and Montenegro considers
that this analysis involves an invented superstructure and is substantially incompatible with the
evidence of the intention of the declarant State in 1999.
43. And this for four reasons.
44. First: The declaration must be construed on its own and in its temporal context. The
formula is not “all disputes” but “all disputes . . . with regard to the situations or facts subsequent to - 39 -
this signature . . .” The hostilities which were begun on 24 March 1999 were to be subject to the
Court’s legal assessment: that was the clear intention of the declaration. However, the declaration
did not, of course, concern itself with the specification of the nature of the legal claims.
45. Second: There is no sufficient evidence of a double exclusion formula. The overall
criterion must be the intention of the declarant. The dispute to be identified was a dispute with
regard to the situation, which consisted of the armed conflict mounted by a coalition of NATO
States. But this background alone could not be sufficient to identify the nature and incidence of the
dispute. It was only when the Application was filed on 29 April 1999 that the constituent elements
of the dispute before the Court could come into existence. Only then did the legal dispute
crystallize.
46. Third: The Yugoslav declaration is not drafted in such a way as to be retrospective but
prospective. The declaration refers to “all disputes arising or which may arise after the signature
of the present Declaration . . .”
47. Fourth: In any event, and without prejudice to the foregoing argument, the “situation” to
which the dispute was related must be evaluated as in Spain v. Canada in accordance with the
pertinent principles of general international law which form part of the context. Once the bombing
offensive was launched, the continuing pattern of activity is to be characterized in accordance with
Draft Article 25 on State Responsibility adopted on a first reading by the International Law
Commission in 1978. The Article reads as follows:
“Article 25
Moment and duration of the breach of an international obligation
by an act of the State extending in time
1. The breach of an international obligation by an act of the State having a
continuing character occurs at the moment when that act begins. Nevertheless, the
time of commission of the breach extends over the entire period during which the act
continues and remains not in conformity with the international obligation.
2. The breach of an international obligation, by an act of the State composed of
a series of actions or omissions in respect of separate cases, occurs at the moment
when that action or omission of the series is accomplished which establishes the
existence of the composite act. Nevertheless, the time of commission of the breach
extends over the entire period from the first of the actions or omissions constituting
the composite act not in conformity with the international obligation and so long as
such actions or omissions are repeated. - 40 -
3. The breach of an international obligation, by a complex act of the State
consisting of a succession of actions or omissions by the same or different organs of
the State in respect of the same case, occurs at the moment when the last constituent
element of that complex act is accomplished. Nevertheless, the time of commission of
the breach extends over the entire period between the action or omission which
initiated the breach and that which completed it.” (ILC, Yearbook 1978, Vol. II,
Part Two, pp. 89-90.)
48. The Articles adopted by the Commission on a second reading in 2001 include Article 14
which provides in material part as follows:
“1. The breach of an international obligation by an act of a State not having a
continuing character occurs at the moment when the act is performed, even if its
effects continue.
2. The breach of an international obligation by an act of a State having a
continuing character extends over the entire period during which the act continues and
remains not in conformity with the international obligation.”
49. On this basis, even if the view of the respondent States concerning the double exclusion
formula were to be adopted, the two conditions would be satisfied. The dispute arose on deposit of
the Application on 29 April 1999 and the situation was in legal terms a breach of an international
obligation by an act of the State having a continuing character.
50. The position advanced on behalf of Serbia and Montenegro can now be summarized.
First: There can be no room for doubt that in the declaration of 1999 Yugoslavia intended to
accept the jurisdiction of the Court in order to obtain redress for the bombing by a coalition of
States. But the declaration does not identify the dispute: that is not the function of a declaration.
Second: For the purposes of the declaration and the Statute of the Court the date of the
dispute was that of the deposit of the Application namely, 29 April 1999.
Thirdly: The breach of the obligations forming the subject of the Application was of a
continuing character and therefore both the dispute and the situation to which it related were
subsequent to 25 April 1999, the date of signature of the Yugoslav declaration.
51. By way of an epilogue it is appropriate to emphasize that the interpretation of the
Yugoslav declaration should be carried out on a contextual basis. It is the intention which is
paramount and the context indicates the intention to accept the jurisdiction of the Court particularly
but not exclusively with regard to the military action by the United Kingdom and other
Respondents. This is accepted by the United Kingdom in her Preliminary Objections at pages 55 to
56, paragraph 4.27. - 41 -
52. And it is a characteristic of the case law on jurisdiction ratione temporis that each
decision reflects the historical and legal background of the particular case. It follows that the
pre-existing case law cannot provide more than very general guidance. And it is precisely in the
context of the case law that Shabtai Rosenne is critical of the contextual approach of the Court to
questions of interpretation in this context (see Rosenne, The Law and Practice of the International
Court, 1920-1996, Vol. II, p. 787).
53. And there is a second epilogue. It is important to reaffirm that the legal dispute in
respect of which the Court has competence under Article 36, paragraph 2, did not arise during the
Security Council debates of 24 and 26 March 1999. I shall begin with a reference to the definition
offered in the Mavrommatis Palestine Concessions case, Judgment No. 2, by the Permanent
Court this is a very familiar definition: “A dispute is a disagreement on a point of law or fact, a
conflict of legal views or of interests between two persons.”
54. In my submission this definition refers to a condition which is necessary but not
sufficient. This important limitation of the definition is carefully explained by Shabtai Rosenne in
the treatise already referred to (The Law and Practice of the International Court, 1920-1996,
Vol. II, pp. 519-521).
55. The problem of the identification of a legal dispute has been elucidated by
Sir Robert Jennings in the Essays in Honour of Wang Tieya, 1999, pages 401 to 405. Like
Shabtai Rosenne, Sir Robert points to the circularity and other limitations of the definition offered
in the Mavrommatis case. Sir Robert proposes the following definition of a legal dispute. He says:
“A ‘legal dispute’ in a technical and realistic sense is accordingly, one which has been thus
processed, or reduced, into a form suitable for decision by a court of law, i.e. a series of specific
issues for decision.” (Op. cit., p. 403.)
56. In this context, that is, the evaluation of temporal limitations, Shabtai Rosenne offers the
following opinion: He says: “The judgment in the Interhandel case contains what appears to be a
definitive decision on this issue. Here the court emphasised that the subject of the dispute was
indicated in the application and the principal final submission of the Swiss Government.”
(Rosenne, op. cit., p. 789, referring to Interhandel, I.C.J. Reports 1959, p. 21.) - 42 -
57. In the light of these authorities and certain cogent considerations of principle, it is
submitted that the dispute could not have arisen during the Security Council proceedings on 24 and
26 March 1999. The Summary Records concerned can be found in the United Kingdom, Annexes,
Nos. 14 and 16 and the Netherlands, Annexes, 7.4 and 7.5.
58. A reading of the Security Council proceedings does not produce any evidence, or any
sufficient evidence, of the elements of the legal dispute which crystallized with the filing of the
Application. In particular, I respectfully draw the attention of the Court to the following points.
First: The focus of the discussion was the “situation in Kosovo”, or “the conflict of
Kosovo”.
Second: The legal references, such as they were, were to resolutions of the Council acting
under Chapter VII.
Third: The Yugoslav representative made no reference to a legal dispute when he spoke
(3988th Meeting, pp. 13-15).
Fourth: The diplomatic background had consisted of efforts, accompanied by the threats of
bombing over a long period, to reach a political and not a legal settlement: I refer to the views of
Sir Jeremy Greenstock, in the record at page 11, referring to efforts to reach a political solution;
and the views of the German delegate, at page 16. The threat of a bombing campaign is not, even
these days, the appropriate procedure for launching a dispute.
Fifth: The resolution of Belarus, India and the Russian Federation, which was before the
Council, refers to Chapters VII and VIII of the Charter and not to judicial settlement.
59. Overall, the Council proceedings explicitly relate to the Kosovo crisis and to political
solutions, rather than the prelude to the resolution of legal disputes of any kind. Legal
considerations were advanced by only a small number of delegates. It must be recalled that the
bombing of Yugoslavia as a whole was the fulfilment of an ultimatum concerning the acceptance
of NATO conditions presented during the Rambouillet talks. All this is a long way from
Phosphates in Morocco and Interhandel. The Summary Records do not contain a single reference
to a legal dispute. For the convenience of the Court, I would like to indicate that, in so far as this
analysis differs from that of the Memorial, the version in the Memorial is superseded (see the
Memorial, p. 340, para. 3.2.16). - 43 -
The conditions of Article 36(2) of the Statute and the 12-month clause
60. In her Preliminary Objections the United Kingdom contends that:
“Notwithstanding the terms of the Court’s decision at the Provisional Measures
stage, the FRY has again attempted, in its Memorial, to found the jurisdiction of the
Court on the declarations under Article 36 (2) of the Statute. The FRY contends that
the twelve-month clause in the United Kingdom declaration will not present an
obstacle to the jurisdiction of the Court provided that the oral hearings are held after
25 April 2000.” (P. 44, para. 4.6.)
61. In the Memorial Serbia and Montenegro relies on the Mavrommatis principle which was
reaffirmed and applied by the Court in its Judgment on Preliminary Objections in the Bosnia case.
In the words of the Court there:
“It is the case that the jurisdiction of the Court must normally be assessed on the
date of the filing of the act instituting proceedings. However, the Court, like its
predecessor, the Permanent Court of International Justice, has always had recourse to
the principle according to which it should not penalize a defect in a procedural act
which the Applicant could easily remedy. Hence, in the case concerning the
Mavrommatis Palestine Concessions, the Permanent Court said:
‘Even if the grounds on which the institution of proceedings was
based were defective for the reason stated, this would not be an adequate
reason for the dismissal of the applicant’s suit. The Court, whose
jurisdiction is international, is not bound to attach to matters of form the
same degree of importance which they might possess in municipal law.
Even, therefore, if the application were premature because the Treaty of
Lausanne had not yet been ratified, this circumstance would now be
covered by the subsequent deposit of the necessary ratifications.’
(P.C.I.J., Series A, No. 2, p. 34.)
The same principle lies at the root of the following dictum of the Permanent
Court of International Justice in the case concerning Certain German Interests in
Polish Upper Silesia:
‘Even if, under Article 23, the existence of a definite dispute were
necessary, this condition could at any time be fulfilled by means of
unilateral action on the part of the Applicant Party. And the Court cannot
allow itself to be hampered by a mere defect of form, the removal of
which depends solely on the Party concerned.’ (P.C.I.J., Series A, No. 6,
p. 14.)
The present Court applied this principle in the case concerning the Northern
Cameroons (I.C.J. Reports 1963, p. 28), as well as Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America) when it
stated: ‘It would make no sense to require Nicaragua now to institute fresh
proceedings based on the Treaty, which it would be fully entitled to do.’ (I.C.J.
Reports 1984, pp. 428-429, para. 83.) (I.C.J. Reports 1996 (II) pp. 613-614, para. 26.)
62. It must be obvious that the 12-month requirement has now been satisfied. No doubt the
pertinent Order of the Court relating to the Request for Provisional Measures invoked the British - 44 -
12-month clause but, of course, the Court, in paragraph 38, stated that the findings did not prejudge
the question of the jurisdiction of the Court.
63. In her Preliminary Objections the United Kingdom seeks to distinguish the decision of
the Court in the Bosnia case. In the first place it is contended that in the Bosnia case the Treaty
concerned was the Genocide Convention which “is a Treaty of a special character for the
obligations which it creates are obligations erga omnes” (Preliminary Objections, pp. 54-55,
paras. 4.24-4.25). But the Court in the Bosnia Judgment makes no reference to this factor and the
issue both in that case and in the present case is that of jurisdiction.
64. Secondly, the United Kingdom argues that:
“Paragraph 1 (ii) of that declaration unambiguously states that the United
Kingdom does not accept the jurisdiction of the Court under Article 36 (2) of the
Statute vis-à-vis another State if ‘the acceptance of the Court’s compulsory
jurisdiction [by that other State] was deposited or ratified less than twelve months
prior to the filing of the application bringing the dispute before the Court’ (emphasis
added). It follows, as the Court recognised in its Order of 2 June 1999, that
Article 36 (2) manifestly cannot constitute a basis for exercising jurisdiction over the
United Kingdom unless the Applicant’s declaration under Article 36 (2) had been in
force for at least twelve months before that State filed its Application. Either this
requirement is satisfied when the Application is filed or it cannot be satisfied at all.”
(Preliminary Objections, p. 55, para. 4.26.)
65. In our submission this logic simply begs the question, and fails to circumvent the logic of
the Mavrommatis principle, “according to which [the Court] should not penalize a defect in a
procedural act which the Applicant could easily remedy”. I am using the language of the Judgment
in the Bosnia case. Obviously, the applicant State could simply file a new application.
66. Finally, the United Kingdom points out that her declaration expressly excludes “disputes
in respect of which any other party to the dispute has accepted the compulsory jurisdiction of the
International Court of Justice only in relation to or for the purpose of the dispute”. In my
submission the key word here is “only”. The United Kingdom has not provided any, or any
sufficient, evidence to establish that the intention of the Yugoslav Government had this unique
purpose.
67. In her Preliminary Objections the United Kingdom asserts that counsel for the FRY
“expressly stated at the Provisional Measures stage that the purpose of the FRY was to accept the
jurisdiction of the Court for the present dispute” (p. 56, para. 4.27). This refers to the speech of - 45 -
Mr. Corten (CR 99/25, p. 18), but, with respect, the substance of the speech does not sustain this
assertion.
68. There is, of course, no indication in the text of the Yugoslav declaration that the
acceptance was for the purpose of establishing jurisdiction only for the purpose of a particular
dispute.
Bad faith
69. Mr. President, before I close, there is the issue of bad faith which has been invoked by
Belgium and the United Kingdom, in the Preliminary Objections, as a ground for asserting the
inadmissibility of the Application.
70. The Belgian Preliminary Objections seek to find a legal basis for the arguments in the
doctrine of clean hands and also on the basis of good faith as a general principle of law. The
United Kingdom contents itself with invoking good faith as a general principle of law.
71. This type of argument does not address issues of law or jurisdiction but is in fact
addressed purely to political prejudice. Two aspects of the argument can be examined briefly. In
the first place, the applicant State is charged with abuse of process. Such arguments do not find
favour with the Court. Thus, in its Judgment in the Nauru case, the Court dealt with the Australian
argument based upon judicial propriety as follows:
“Australia’s fifth objection is that ‘Nauru has failed to act consistently and in
good faith in relation to rehabilitation’ and that therefore ‘the Court in exercise of its
discretion, and in order to uphold judicial propriety should . . . decline to hear the
Nauruan claims’.
The Court considers that the Application of Nauru has been properly submitted
in the framework of the remedies open to it. At the present stage, the Court is not
called upon to weigh the possible consequences of the conduct of Nauru with respect
to the merits of the case. It need merely note that such conduct does not amount to an
abuse of process. Australia’s objection on this point must also be rejected.”
(Preliminary Objections, I.C.J. Reports 1992, p. 255, paras. 37-38.)
72. The argument based upon the general principle of good faith, in the form now advanced
by the United Kingdom, was advanced by Nigeria in the Preliminary Objections phase of the case
concerning the Land and Maritime Boundary. It was carefully examined and rejected by the Court.
In the words of the Judgment: - 46 -
“The Court furthermore notes that although the principle of good faith is ‘one of
the basic principles governing the creation and performance of legal obligations … it
is not in itself a source of obligation where none would otherwise exist’ (Border and
Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1988, p. 105, para. 94). There is no specific obligation in
international law for States to inform other States parties to the Statute that they
intended to subscribe or have subscribed to the Optional Clause. Consequently,
Cameroon was not bound to inform Nigeria that it intended to subscribe or had
subscribed to the Optional Clause.
Moreover:
‘A State accepting the jurisdiction of the Court must expect that an
Application may be filed against it before the Court by a new Declarant
State on the same day on which that State deposits with the
Secretary-General its Declaration of Acceptance.’ (Right of Passage over
Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957,
p. 146.)’
Thus, Cameroon was not bound to inform Nigeria of its intention to bring
proceedings before the Court. In the absence of any such obligations and of any
infringement of Nigeria’s corresponding rights, Nigeria may not justifiably rely upon
the principle of good faith in support of its submissions.” (I.C.J. Reports 1998, p. 297,
para. 39.)
73. Given the general irrelevance of the materials alleged to prove bad faith, an extended
response to the Belgian and British arguments would be out of place. However, some observations
by way of a limited response may be in order and thus, for a few minutes, I shall descend into the
political arena.
74. Belgium and the United Kingdom accuse the Yugoslav Government of disobeying
various directives of the Security Council in respect of the situation in Kosovo.
75. This conduct is characterized as evidence of a lack of good faith. But, Mr. President, an
effective and objective enquiry into bad faith would extend to a variety of matters, including, for
example, the provision of external support to the KLA insurgents. Let me provide one example of
a serious lack of co-operation by the NATO Governments with a humanitarian agency empowered
to act in Kosovo, namely, the OSCE Mission the Kosovo Verification Mission. Mr. President,
If there was a humanitarian catastrophe imminent, why were the 1400 monitors of the OSCE
Mission forced to withdraw at short notice? The reason was the imminent NATO bombing
campaign, but this element is not mentioned in the letter of the Foreign Minister of Norway, the
CSCE Chairman-in-Office, dated 19 March just a few days before the bombing to the
President of Yugoslavia. I do not want to quote from the document. With respect, it should be - 47 -
read as a whole. It can be found in the Memorial, Annex 166, and it is presently in the judges’
folder at tab 5.
76. Mr. President, the CSCE Statement, when it is related to the events which followed it, is
seen to include regrettable lapses of candour.
Mr. President, that finishes my submission this morning. I thank the Court for its care and
patience and I would ask you to give the floor to Mr. Vladimir Djerić.
The PRESIDENT: Thank you, Professor Brownlie. I now give the floor to Mr. Djerić.
Mr. DJERIĆ: Thank you, Mr. President.
Mr. President, distinguished Members of the Court, it is with great pleasure that I take this
opportunity to appear before the Court once again on behalf of Serbia and Montenegro. In my
presentation, I will first deal with the objection that the Court should not adjudicate the present
disputes in the absence of certain third parties; second, I will deal with the objection that NATO
and not its Member States should be responsible for the breaches of international law; third, I will
examine the question whether the claims of Serbia and Montenegro have been sufficiently
specified; and, finally, I will examine the two bilateral treaties as the bases of jurisdiction with
respect to Belgium and the Netherlands.
I. Should the Court adjudicate in the absence of other actors involved in the dispute?
1. Mr. President, the respondent States claim that it would be inappropriate to proceed with
the present cases because the Court will have to decide upon the rights and obligations of States or
entities that are not participating in the proceedings. They try to rely on the well-known principle
pronounced in the Monetary Gold case (I.C.J. Reports 1954, p. 19). According to this principle,
whereas the Court can only exercise jurisdiction over a State with its consent, the Court cannot
adjudicate if the legal interests of an absent State form the very subject-matter of the dispute (ibid.,
pp. 32-33).
2. The legal situation in the Monetary Gold case was described by the Court in the following
way: “In order . . . to determine whether Italy is entitled to receive the gold, it is necessary to - 48 -
determine whether Albania has committed any international wrong against Italy, and whether she is
under an obligation to pay compensation to her.” (I.C.J. Reports 1954, p. 32.)
3. Thus, at the first stage, the Court had to decide about the international responsibility of
Albania, and at the second stage, to decide upon Italy’s claim, which was dependent upon the
pronouncement on the international responsibility of Albania. And this was a situation in which
the legal interests of Albania formed “the very subject-matter of the decision” (ibid.).
4. This sequence has been confirmed in the subsequent jurisprudence of the Court. In the
Nauru case, the question was whether proceedings could continue against Australia, if the other
two States which also made up the Administering Authority for Nauru the United Kingdom and
New Zealand were not before the Court. However, the Court distinguished this situation from
the Monetary Gold case:
“In the latter case [Monetary Gold], the determination of Albania’s
responsibility was a prerequisite for a decision to be taken on Italy’s claims. In the
present case, the determination of the responsibility of New Zealand or the United
Kingdom is not a prerequisite for the determination of the responsibility of Australia,
the only object of Nauru’s claim.” (Certain Phosphate Lands in Nauru (Nauru v.
Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 261, para. 55;
emphasis added.)
5. This line of reasoning was again confirmed in 1995 in the case concerning East Timor. As
is well known, the issue in that case was whether Australia had violated its international obligations
when it concluded a treaty with Indonesia concerning East Timor and not with Portugal, which was
East Timor’s administering Power. The Court concluded that it could not reach a decision in the
case without first determining whether Indonesia did or did not have the treaty-making power with
respect to East Timor, in other words, without first deciding upon the legal interests of Indonesia:
“The Court concludes that it cannot, in this case, exercise the jurisdiction it has
by virtue of the declarations made by the Parties under Article 36, paragraph 2, of its
Statute because, in order to decide the claims of Portugal, it would have to rule, as a
prerequisite, on the lawfulness of Indonesia’s conduct in the absence of that State’s
consent.” (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 105,
para. 35; emphasis added.)
6. Mr. President, it clearly follows from the jurisprudence that, according to the Monetary
Gold principle, the legal interests of the absent State would form “the very subject-matter of the
decision” only when the Court would have to decide on them as a prerequisite for reaching the
decision. On the other hand, in cases of possible simultaneous responsibility of States, such as in - 49 -
the Nauru case, the Monetary Gold principle is not a bar to adjudication. This is so because the
Court need not in both a temporal and a logical sense first decide on the legal interests of
absent States in order to reach a decision in the case.
7. Applying these principles to the circumstances of the present cases, it seems clear that the
military operations against the Federal Republic of Yugoslavia were a simultaneous action of all
States members of the NATO alliance. All of them decided to initiate and continue the military
operations. All of them participated in the choice of targets. As stated in the NATO Handbook, an
official NATO publication:
“When decisions have to be made, action is agreed upon on the basis of
unanimity and common accord. There is no voting or decision by majority. Each
nation represented at the Council table or on any of its subordinate committees retains
complete sovereignty and responsibility for its own decisions.” (NATO Handbook,
2001, p. 150, available at: www.nato.int/docu/handbook/2001/pdf/147-170.pdf.)
8. Therefore, the Court will have to make a decision with respect to the acts of the
respondent States, and of the respondent States only. In order to do so, the Court need not first
make any determination with respect to the legal interests of any State not before the Court. This is
not logically required as a precondition for the Court’s decision. And in this sense, the present
cases resemble the Nauru case, in which the Court had to make a determination with respect to the
responsibility of Australia, which was in effect simultaneous to the possible determination of
responsibility of the United Kingdom and New Zealand.
9. Mr. President, some of the respondent States are at pains to distinguish the present cases
from the Nauru case, by asserting that in the latter case the absent parties had a relatively
secondary, minor or incidental role, while Australia played a dominant role. In the present cases,
they say, the dominant participant will not be before the Court (Preliminary Objections of Canada,
p. 58, para. 197; Preliminary Objections of the Portuguese Republic, p. 43, para. 143; Preliminary
Objections of the United Kingdom, p. 94, para. 6.22; Preliminary Objections of the Kingdom of
the Netherlands, pp. 61-62, paras. 7.2.23-7.2.24).
10. However, the special role played by Australia in the Mandate and Trusteeship régime for
Nauru was not ratio decidendi behind the application of the Monetary Gold principle in the Nauru
case. Instead, the Court’s analysis was focused on the issue of whether or not a decision in the case
against Australia would require, as a prerequisite, a determination of the legal interests of third - 50 -
States: and the Court concluded that its decision would not require such determination. This was
so in Nauru, and this is so in the present cases.
11. Some respondent States claim that the Monetary Gold principle is applicable in relation
to NATO itself (Preliminary Objections of the French Republic, Ch. II, Sec. 3, p. 38 ff, para. 29 ff;
Preliminary Objections of the Italian Republic, p. 51 ff; Preliminary Objections of the Portuguese
Republic, pp. 43-44; also Preliminary Objections of the Kingdom of the Netherlands, p. 54,
para. 7.2.2). They say the legal interests of NATO form the very subject-matter of the decision,
and in the absence of NATO the Court cannot proceed with the case.
12. At the outset, it is worth noting that the United Kingdom, Canada and Germany do not
invoke this argument. Obviously, the Respondents themselves do not have the same attitude
towards the nature of NATO and its role in the military intervention in 1999. In any event, Serbia
and Montenegro submits that the Monetary Gold principle is clearly not applicable in relation to
NATO.
13. Both the application of this principle and the reasoning behind it have been linked
exclusively to States. In its jurisprudence, the Court has consistently referred to States. There is
not even a hint that the principle could be applied to other subjects of international law: and this is
logical because the Monetary Gold rationale protects the fundamental principle that the Court’s
jurisdiction must be based on the consent of States. The position of other entities is simply
irrelevant because the contentious proceedings before the Court are not open to them.
II. Should NATO’s legal personality shield the respondent States
from responsibility in the present case?
14. Mr. President, some respondent States argue that the claims in the present cases do not
concern their acts but rather the acts of NATO (see, e.g., CR 2004/12, p. 24, para. 50 (Abraham)).
Accordingly, since NATO as an international organization possesses international legal personality,
it is NATO and not individual Member States that should be held responsible (see, e.g., CR 2004/9,
p. 22, para. 4.8. (Galvão Teles); Preliminary Objections of the French Republic, Ch. II, p. 36,
para. 23; Preliminary Objections of the Italian Republic, pp. 52-54; Preliminary Objections of the
Portuguese Republic, pp. 38-42, paras. 130-141). Again, I have to note that only certain
respondent States have raised this objection. In fact, it seems that the majority of the respondent - 51 -
States allow that, in principle, they may be held responsible for the acts performed within the
framework of NATO.
15. At the outset, Mr. President, it should be noted that the nature of responsibility of, and its
allocation between, NATO and its Member States, as well as between the Member States
themselves, is clearly a question for the merits and does not have an exclusively preliminary nature
as requested by Article 79, paragraph 7, of the Rules (see Certain Phosphate Lands in Nauru
(Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 258-259,
para. 48).
16. In any case, Mr. President, it would be really astonishing to accept the proposition that,
by establishing and acting through an international organization, States could evade their
obligations and responsibility under international law, especially under peremptory norms such as
the prohibition of use of force and of genocide.
17. Furthermore, Article 103 of the United Nations Charter expressly stipulates that in the
event of a conflict between the obligations of United Nations Members under the Charter and their
obligations under any other international agreement, the Charter obligations shall prevail.
Therefore, the respondent States remain responsible for all violations of the United Nations Charter
and, in my submission, for all violations of the principle of ius cogens because these obligations
prevail over any other agreement, including the North Atlantic Treaty.
18. With all due respect, the Respondents’ proposition that States members of an
international organization, as a matter of principle, cannot be liable for acts of the organization is
incorrect and misleading.
19. Some time ago, this question was thoroughly studied in a report by Professor Higgins, as
she then was, for the Institut de droit international. The study itself and the resolution adopted by
the Institute do not seem to adopt a general proposition that States members are simply never liable
for acts of an international organization. Rather, the conclusion seems to be that there is no general
rule of international law which provides that States members shall be liable for acts of an
international organization. As the author of the report observed,
“Our conclusion is that, by reference to accepted sources of international law,
there is no norm which stipulates that member states bear a legal liability to third
parties for the non-fulfilment by international organizations of their obligations to - 52 -
third parties.” (The Legal Consequences for Member States of the Non-Fulfilment by
International Organizations of Their Obligations Towards Third Parties, Provisional
Report, Institute of International Law, Yearbook, Vol. 66, Part I, Session of Lisbon,
1995, p. 415, para. 113.)
20. However, Mr. President, the present cases do not concern the issue of liability of
Member States for obligations of an international organization, that is, NATO. Rather, the issue in
the present cases concerns liability of individual respondent States themselves for their own acts.
21. It is not disputed by Serbia and Montenegro that NATO has international legal
personality in relation to certain limited matters (see, e.g., Agreement on the Status of the North
Atlantic Treaty Organization, National Representatives and International Staff, Ottawa,
20 September 1951), but it is still a military alliance.
22. In relation to the use of force, the founding instrument of NATO the North Atlantic
Treaty is clear and straightforward. According to its Article 5, which is reproduced at tab 4,
page 2, of the judges’ folder:
“The Parties agree that an armed attack against one or more of them in Europe
or North America shall be considered an attack against them all and consequently they
agree that, if such an armed attack occurs, each of them, in exercise of the right of
individual or collective self-defence recognised by Article 51 of the Charter of the
United Nations, will assist the Party or Parties so attacked by taking forthwith,
individually and in concert with the other Parties, such action as it deems necessary,
including the use of armed force, to restore and maintain the security of the North
Atlantic area.”
23. Therefore, according to Article 5, if an armed attack against any of the Parties occurs,
each Party not the Organization as a separate personality shall take “individually and in
concert with others” such action “as it deems necessary”. Clearly, the ultimate decision to use
force rests with individual States and this remains a sovereign prerogative of NATO Members.
24. Furthermore, the NATO Handbook, which I have already cited, unequivocally states that
“[e]ach nation represented at the Council table or on any of its subordinate committees retains
complete sovereignty and responsibility for its own decisions” (NATO Handbook, 2001, p. 150
available at: www.nato.int/docu/handbook/2001/pdf/147-170.pdf).
25. Mr. President, other information also demonstrates that each NATO Member State
individually decided that the military operations should be initiated and continued, and made a
sovereign decision on the use of armed force against Yugoslavia. That this was done within the - 53 -
framework of a military alliance does not alter the fact that decisions on the use of force were
ultimately taken by the national governments.
26. For example, France being one of the respondent States raising the objection under
consideration, I will quote from a communiqué issued by the French authorities on 24 March 1999,
in English translation:
“Consequently, the President of the Republic, in agreement with the
government, has decided on the participation of the French forces in the now
inevitable military operations, which are going to be initiated in the framework of the
Atlantic alliance.”
(“En conséquence, le président de la République, en accord avec le
gouvernement, a décidé la participation des forces françaises aux actions militaires,
devenues inévitables, qui vont être engagées dans le cadre de l’Alliance atlantique.”
Available at: www.diplomatie.gouv.fr/actual/dossiers/kossovo/kossovo3.html.)
I will also quote from a statement by German Chancellor Schröder:
“Bundeswehr soldiers are also participating in this NATO mission. This was
decided by the German government and the Deutscher Bundestag in accordance
with the will of a vast majority of the German people.
This was not an easy decision for the German government . . .”
(“An dem Einsatz der NATO sind auch Soldaten der Bundeswehr beteiligt. So
haben es Bundesregierung und der Deutsche Bundestag beschlossen in
Übereinstimmung mit dem Willen der großen Mehrheit des Deutschen Volkes. Die
Bundesregierung hat sich ihre Entscheidung nicht leicht gemacht…” Available at:
www.bundeskanzler.de/Reden-.7715.8165/Erklaerung-von-Bundeskanzler-Gerh…-
Schroeder-z...htm)
27. Mr. President, in addition to the fact that the respondent States, individually and in
concert with others, took the decision to initiate and continue air strikes against Yugoslavia, their
national authorities did have the power to approve or veto the targets, which power is pertinent to
their international responsibility. A statement by the Dutch Defence Minister delivered in the
Dutch Parliament clearly demonstrates that the ultimate control over military actions rested with
each individual member State:
“Dutch military in Vicenze have assessed each time again whether the targets
which Saceur [Supreme Allied Commander Europe] apportioned to the Dutch F-16’s,
were in conformity with our views on what constitute legitimate targets. It was agreed
that in case of doubt the Chief of the Defence Staff would inform the Cabinet . . . The
Netherlands have the right to consider that the deployment of these weapons [cluster
bombs] in some situations is not warranted. Of course, our allies are informed in these
circumstances, but from a formal point of view this remains a Dutch competence. The
Cabinet is responsible for the deployment of Dutch forces.” - 54 -
(“Door Nederlandse officieren in Vicenza werd telkens opnieuw beoordeeld of
de doelen die door Saceur aan Nederlandse F-16’s werden opgedragen in
overeenstemming waren met onze opvattingen over legitieme doelen. Afgesproken
was dat bij twijfel de chef defensie-staf het kabinet zou informeren. Dat gold dus ook
voor de inzet van clusterwapens waarbij Nederlandse zouden worden gebruikt.
Nederland heeft het recht om de inzet van die wapens in bepaalde situaties niet
verantwoord te vinden. Uiteraard wordt hierover contact opgenomen met de
bondgenoten, maar het blijft formeel een Nederlandse bevoegheid. Het kabinet is
verantwoordelijk voor de inzet van Nederlandse eenheden.” (Tweede Kamer,
18 mei 2000, 77ste vergadering, p. 77-5020). Available at: www.tweede-kamer.nl/
documentatie/parlando/index.jsp.)
28. In conclusion, it is clear that, as a matter of principle, the respondent States cannot hide
behind NATO’s international legal personality to escape responsibility. Further, the respondent
States as sovereign States made a sovereign decision to initiate and continue the military operations
against Yugoslavia and controlled the choice of targets. The fact that they did so in concert with
other NATO States cannot shield them from the responsibility because the decisions were theirs,
nevertheless.
III. Whether acts allegedly committed by the respondent States have been
sufficiently specified by the applicant State?
29. Mr. President, this takes me to the objection that Serbia and Montenegro has failed to
specify which particular acts it attributes to each individual respondent State (see, e.g., Preliminary
Objections of the French Republic, Introduction, pp. 2-4, paras. 9-15, Ch. II, p. 34, para. 17;
Preliminary Objections of the Kingdom of Belgium, p. 9, para. 28; Preliminary Objections of the
Kingdom of the Netherlands, p. 51 ff., para. 7.1.1 ff.; Preliminary Objections of the United
Kingdom, p. 92, para. 6.18).
30. For easier reference, I submit that acts of the respondent States which are the
subject-matter of the present disputes may be divided into three categories:
first category: decisions to initiate and continue the military operations against Yugoslavia;
second category: decisions on the targets to be hit;
third category: specific acts of warfare, including weapons used, as well as assistance to the
so-called “Kosovo Liberation Army”.
31. It is submitted that with regard to the first category of acts alleged decisions to initiate
and continue the military operations the objection as to the specificity of allegations must be
rejected. As has just been described, each of the respondent States decided to use its military - 55 -
forces against Yugoslavia, and all of them individually and in concert with others commenced,
perpetuated, and endorsed the bombing campaign. It is in relation to these acts that Serbia and
Montenegro claims the respondent States violated, inter alia, their obligation not to use force.
32. In relation to the second category of acts decisions on the selection of targets the
objection as to the specificity of allegations must again be rejected. As has just been demonstrated,
all respondent States had control over the choice of targets and all respondent States could have
vetoed targets. These acts and omissions of the Respondents give rise to their responsibility for
various violations of international humanitarian law and the Genocide Convention.
33. In relation to the third category of acts specific acts of bombing and warfare it may
be true that the Applicant’s submissions have not been as specific as is the case with the other two
categories of acts. However, on the one hand, the case before the Court involves joint military
operations, and on the other, all the respondent States expressly acknowledged and approved all
specific acts of bombing. It is submitted that the onus should rest with the respondent States to
demonstrate that their forces did not, in fact, participate in the specific acts of bombing which
involved violations of international law.
34. In the alternative, Serbia and Montenegro submits that this objection clearly does not
have an exclusively preliminary character, as required by Article 79, paragraph 7, of the Rules.
Whether or not the Applicant has sufficiently corroborated its claims in relation to each of the
respondent States is clearly the question for the merits (see case concerning the Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections,
Judgment, I.C.J. Reports 1998, p. 319, para. 100). Moreover, the objection related to the
specificity of allegations involves questions such as the role of particular respondent States in the
joint military operations, their role in particular instances of bombing, and ultimately allocation of
responsibility. To consider these questions, the Court would have, in fact, to adjudicate the merits
of the dispute (see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Merits, Judgment, I.C.J. Reports 1986, para. 41, p. 31). - 56 -
IV. Bilateral treaties with Belgium and the Netherlands
35. Mr. President, as additional bases of jurisdiction in the proceedings against Belgium and
the Netherlands, Serbia and Montenegro has invoked two bilateral treaties. One is the 1931 Treaty
of Judicial Settlement, Arbitration and Conciliation concluded between the Netherlands and
Yugoslavia (hereinafter “the 1931 Treaty”); another is the 1930 Convention on Conciliation,
Judicial Settlement and Arbitration concluded between Belgium and Yugoslavia (hereinafter
“the 1930 Convention”). Both the Netherlands and Belgium have raised objections in relation to
these two treaties.
The 1978 Vienna Convention on Succession does not apply in the present case
36. Mr. President, at the outset, it should be noted that it is common ground that the
1978 Vienna Convention on Succession of Treaties is not in force between Serbia and Montenegro
and the two States concerned, and is therefore not applicable to the present cases as treaty law.
37. However, both Belgium and the Netherlands contend that rules of the 1978 Vienna
Convention pertaining to “newly independent states” should, in fact, apply in the present case as
customary international law (Preliminary Objections of the Kingdom of Belgium, pp. 140-143,
paras. 430-434; Preliminary Objections of the Kingdom of the Netherlands, p. 42, para. 6.11).
Serbia and Montenegro cannot accept this contention.
38. As the Court will recall, the 1978 Vienna Convention makes a clear distinction between
cases of “newly independent states” (Part III of the 1978 Vienna Convention), and cases of “uniting
and separation of states” (Part IV of the 1978 Vienna Convention).
39. The concept of “newly independent states” is confined to States that become independent
during the process of decolonization, such as colonies, trusteeships, mandates and protectorates
(see Report of the Commission to the General Assembly, United Nations doc. A/9610/Rev.1
(1974), in: Yearbook of the International Law Commission, 1974, p. 176, paras. 7-8). However, it
has been recognized that the break-up of the former Yugoslavia was not a case of decolonization
but a case of dissolution (see, e.g., Opinion No. 8, Conference on Yugoslavia Arbitration
Commission (“Badinter Commission”), 31 ILM 1488, p. 1521 (No. 6, Nov. 1992)). The former
Yugoslavia was not a colonial power, while the FRY and other successor States were not
dependent territories within the former Yugoslavia. It is clear, therefore, that the reliance of the - 57 -
respondent States on the rules pertaining to “newly independent states” is entirely misplaced: these
rules are simply not applicable to the cases of dissolution, such as the case of the former
Yugoslavia.
40. Even if the rules of the 1978 Vienna Convention were applicable in the present case as
customary international law and they are not the appropriate setting, therefore, would be the
second setting envisaged by the Convention, which deals with cases of “uniting and separation of
states”. Of course, this would not help the Respondents’ case.
41. However, I would like to reiterate that the rules of the 1978 Convention do not apply in
the present case, either as treaty law or as customary international law.
Acts of States parties to the treaties in question
42. Mr. President, in the submission of Serbia and Montenegro, the question of succession of
the FRY to bilateral and multilateral treaties of the former Yugoslavia should be considered
primarily on the basis of acts of States parties to the treaties in question, be they bilateral or
multilateral. Starting from this proposition, I will demonstrate that both Belgium and the
Netherlands had, in relation to the FRY, maintained bilateral treaties in force between them and the
former Yugoslavia, including two bilateral treaties under consideration.
The 1930 Convention between Belgium and Yugoslavia
43. Mr. President, Belgium took a clear and unequivocal position that, pending succession
agreement with the FRY, all bilateral treaties that were in force between the former Yugoslavia and
Belgium should continue to be in force between the FRY and Belgium. This position was taken in
1996, in a letter by the Foreign Minister of Belgium, and I will quote the English translation:
“In this regard, Belgium proceeds on the assumption that the bilateral
agreements linking, on the one hand, the Kingdom of Belgium . . . and, on the other
hand, the Socialist Federal Republic of Yugoslavia, will continue to have effect until
they are either confirmed or renegotiated by both parties.”
(“A ce propos, la Belgique part du principe que les accords bilatéraux liant,
d’une part, le Royaume de Belgique… et, d’autre part, la République Socialiste
Fédérative de Yougoslavie, continueront à produire leurs effets jusqu’à ce qu’ils aient
été soit confirmés soit renégociés par les deux parties.”) - 58 -
(Letter of the Foreign Minister of Belgium to the Federal Minister of Foreign Affairs
of the Federal Republic of Yugoslavia, dated 29 April 1996, reproduced in Annex 74,
Preliminary Objections of the Kingdom of Belgium, Annexes, Vol. 2.)
44. This statement was binding on Belgium, while the FRY was entitled to rely on it. Firstly,
it was contained in a letter from the Foreign Minister, who by virtue of his function had clear
authority to undertake treaty actions and bind the State in such a way. Secondly, this intention
expressed by Belgium to remain bound, in relations with the FRY, by the bilateral treaties in force
between Belgium and the former Yugoslavia, was not given on the basis of any assumptions, nor
was it conditioned in any sense. The Belgian position is unequivocal all bilateral treaties,
without exceptions, continue to be in force. Furthermore, this position taken by Belgium was
accepted by the FRY, including by the FRY’s reliance on the 1930 Convention before this Court.
It is clear, therefore, that the 1930 Convention, being a bilateral treaty in force between the former
Yugoslavia and Belgium, was in force between the FRY and Belgium at the time it was invoked as
a basis for the jurisdiction of the Court, on 12 May 1999.
45. Belgium argues that the letter from the Foreign Minister was written having in mind the
bilateral treaties contained in various lists compiled by the two sides, and that the letter did not
pertain to the 1930 Convention (CR 2004/6, p. 36, para. 75 (Bethlehem); Preliminary Objections
of the Kingdom of Belgium, pp. 144-145, paras. 442-443). However, the wording of the letter is
quite clear: it relates to all treaties and not only to those contained in the provisional treaty lists.
Furthermore, the lists were circulated both before and after the letter was communicated. These
were not definitive lists, these were provisional lists which served to facilitate the negotiations.
These negotiations have not been concluded and there is still no final agreement of the parties. In
such a situation, as the letter of the Belgian Foreign Minister stipulates, all treaties in force between
the former Yugoslavia and Belgium will continue to have effect between the FRY and Belgium
“until they are either confirmed or renegotiated by both parties”.
46. Belgium also argues that the 1930 Convention had lapsed, “whether through
obsolescence or desuetude or on the basis of the implied consent of the parties” (Preliminary
Objections of the Kingdom of Belgium, pp. 134-138, paras. 412-423; see also CR 2004/6, p. 32,
para. 60 (Bethlehem)). - 59 -
47. However, the Vienna Convention on the Law of Treaties does not envisage the
termination of treaties by obsolescence or desuetude. Article 54 of the Vienna Convention
provides that the termination of a treaty may occur either (1) in conformity with the provisions of
the treaty; or (2) “at any time by consent of all the parties after consultation with other contracting
States”. Neither of these conditions has been satisfied in the present case.
48. Firstly, the 1930 Convention has not been terminated in conformity with its provisions.
Belgium has conceded this point (ibid., p. 135, para. 416 (b)). At the same time, Belgium contends
that the 1930 Convention was not conceived of as operating in perpetuity, but offers no evidence
for such a contention. On the contrary, what clearly follows from the provisions of the
1930 Convention is that it has continued to be in force.
49. As a second option, Article 54 of the Vienna Convention on the Law of Treaties also
provides that a treaty may be terminated at any time by consent of the parties “after consultation
with other contracting States”. Belgium has offered no evidence of such consent or consultation.
50. Mr. President, while the Vienna Convention does not leave room for obsolescence and
desuetude, they were mentioned in the preparatory work of the International Law Commission.
Their legal basis, according to the ILC, was “the consent of parties to abandon the treaty, which is
to be implied from their conduct in relation to the treaty” (ILC Yearbook, 1966, Vol. II, p. 237,
para. (5)). However, Belgium has failed to produce any proof of such implied consent of the
parties to terminate the 1930 Convention.
51. The fact that the 1930 Convention was not invoked by the parties for more than 60 years
(Preliminary Objections of the Kingdom of Belgium, pp. 135-136, para. 416 (c)) does not seem to
have much bearing, considering their friendly relations during this period.
52. Finally, the reliance by Belgium on its practice with other successor States of the former
Yugoslavia has no effect on its relations with the FRY and on the present proceedings (ibid.,
p. 136 ff, para. 416 (d) ff; see also CR 2004/6, p. 33, para. 65 (Bethlehem)). It is simply res inter
alios acta. - 60 -
The 1931 Treaty between the Netherlands and Yugoslavia
53. Mr. President, I will now proceed to discuss the 1931 Treaty of Judicial Settlement,
Arbitration and Conciliation concluded between the Netherlands and Yugoslavia.
54. I submit that the Netherlands, in its communications with the FRY before the present
proceedings were instituted, had provided a clear indication that it regarded the 1931 Treaty as
being in force between the two States.
55. In this context, of particular importance is a diplomatic note sent by the Dutch Ministry
of Foreign Affairs (Treaties Division) to the FRY Embassy in the Hague on 20 May 1997,
addressing the question as to which bilateral treaties should continue to be in force. Appended to
the note was a list of treaties, on which the 1931 Treaty was listed under No. 3. I will now quote
the relevant parts of this diplomatic note:
“It was suggested by the Dutch side that the Agreements mentioned on the list,
minus those mentioned under numbers 10, 11 and 14 continue to be applicable
between the Kingdom of the Netherlands and the Federal Republic of Yugoslavia.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
With respect to the remaining in force of the Agreements mentioned under the
numbers 1 to 4, 6 and 7, as well the non-continued applicability of the Agreement
mentioned under number 10, the Yugoslav delegation would contact the authorities
concerned in Belgrade . . .” (Diplomatic note from the Ministry of Foreign Affairs of
the Netherlands (Treaties Division) to the Embassy of the Federal Republic of
Yugoslavia in the Hague, dated 20 May 1997, FRY Memorial, Annex 178,
pp. 529-532 (emphasis added).)
56. Mr. President, the 1931 Treaty is among those treaties that, according to this diplomatic
note, should “continue to be applicable” in the future. Clearly, the Netherlands must have
considered that the 1931 Treaty was in force when it proposed that this treaty should continue to be
in force. Therefore, this diplomatic note of the Dutch Ministry for Foreign Affairs provided a clear
indication to the FRY that the 1931 Treaty was in force.
57. Moreover, the FRY never opposed this position taken by the Dutch side. The positions
taken had not changed in the period between 20 May 1997, when the diplomatic note was
communicated, and 12 May 1999, when the FRY invoked the treaty in question before the Court.
58. It clearly follows that the 1931 Treaty was in force on 12 May 1999.
59. The fact that the two sides agreed in 2002 that the 1931 Treaty would not be considered
to be any longer in force is irrelevant to the present proceedings. First, the language used in the - 61 -
official notes exchanged by the two sides at that time clearly indicates that the agreement will have
only future effect with respect to the treaties in the so-called “Attachment B”, which included the
1931 Treaty: “The treaties . . . referred to in Attachment B will not be considered in force between
the [FRY] and the [Netherlands].” (Note of the Embassy of the Federal Republic of Yugoslavia to
the Netherlands of 9 August 2002, addressed to the Ministry of Foreign Affairs of the Netherlands;
Note of the Ministry of Foreign Affairs of the Netherlands of 20 August 2002, addressed to the
Embassy of the Federal Republic of Yugoslavia, reproduced in case concerning Legality of Use of
Force, Further Documents Submitted by the Respondents Pursuant to Article 56 of the Rules of the
Court, February 2004.)
60. Even more importantly, Mr. President, the 2002 Exchange of Notes has no bearing on the
present proceedings because the relevant time at which a basis of jurisdiction must exist is the time
when it is invoked before the Court in our case, 12 May 1999. If the jurisdiction was
established on that date, it cannot be affected by subsequent extrinsic fact (see Nottebohm
(Liechtenstein v. Guatemala), Preliminary Objections, Judgment, I.C.J. Reports 1953, p. 123;
Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957,
p. 142; Questions of Interpretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary
Objections, Judgment, I.C.J. Reports 1998, pp. 18-19, para. 38).
61. In conclusion, since the 1931 Treaty was in force between the FRY and the Netherlands
on 12 May 1999, the date when it was invoked before the Court, the subsequent Exchange of Notes
between the two States in 2002 has no bearing on the jurisdiction thus established.
Whether the jurisdiction could be established under the provisions
of the two bilateral treaties?
62. Mr. President, both Belgium and the Netherlands contend that the FRY did not institute
the proceedings in compliance with the provisions of the two bilateral treaties.
63. Belgium argues that the 1930 Convention could provide only a subsidiary basis for the
jurisdiction in the present case, and that its invocation by the FRY was premature (Preliminary
Objections of the Kingdom of Belgium, pp. 148-149, paras. 455-459). Belgium relies on Article 2
of the Convention which provides: “Disputes for the settlement of which a special procedure is - 62 -
laid down in other conventions in force between the High Contracting Parties shall be settled in
conformity with the provisions of those conventions.”
64. First, it will suffice to observe that a number of claims in the present case are
independent of the Genocide Convention or any other convention in force which provides for
recourse to the Court.
65. Second, one also must reject the contention made by Belgium that Article 36,
paragraph 2, of the Statute is in fact a special procedure laid down in a convention in force, falling
within the terms of Article 2 of the 1930 Convention (Preliminary Objections of the Kingdom of
Belgium, p. 149, para. 457). At the time the 1930 Convention was drafted, the term “convention in
force” was already contained, for example, in Article 36, paragraph 1, of the Statute of the
Permanent Court, providing that the Court would have jurisdiction in “all matters specially
provided for in treaties and conventions in force”. Consequently, the term “convention in force”
has its clear meaning and refers to treaties other than the Court’s Statute.
66. Mr. President, I will conclude by briefly considering the 1931 Treaty with the
Netherlands and the contention that the FRY did not comply with its Article 4. The text of
Article 4 is clear whether or not the parties resort to conciliation procedure they may submit the
case “jointly under a special agreement” either to the Permanent Court or to an arbitral tribunal.
Further, if the parties fail to agree on the choice of a court either party would be free to bring the
dispute before the Permanent Court, after giving one month’s notice.
67. The Netherlands contends that the opportunity accorded to the parties to choose between
the Permanent Court and an arbitral tribunal was essential for its consent to be bound by the
1931 Treaty, and that the possible adjudication by an arbitral tribunal is a part of the object and
purpose of the treaty (Preliminary Objections of the Kingdom of the Netherlands, p. 49, para. 6.28;
p. 50, para. 6.31). However, this is erroneous, because the 1931 Treaty itself envisages the
possibility that parties may not agree about the choice of venue and, in that case, provides for
unilateral recourse to the Court.
68. In addition, while under Article 4 parties should first try to agree on whether to resort to
the Permanent Court or to an arbitral tribunal, if possibilities for reaching such agreement appear to
have been exhausted, each party is free to act unilaterally. In a situation of armed operations - 63 -
initiated by the Netherlands and its allies against the FRY, it was reasonable for the FRY to
conclude that any efforts to reach an agreement on the mode of dispute settlement would be in vain
and ineffective and to directly bring the case before the Court (see United States Diplomatic and
Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 28, para. 52).
69. In conclusion, it is respectfully submitted that there are no obstacles to establishing the
jurisdiction of the Court under the provisions of both the 1930 Convention with Belgium and the
1931 Treaty with the Netherlands.
70. Mr. President, Members of the Court, this concludes Serbia and Montenegro’s arguments
in the first round. I would like to thank you for your attention and patience.
The PRESIDENT: Thank you, Mr. Djerić. Your statement brings to an end the first round
of oral argument by Serbia and Montenegro.
The Court will meet again on Thursday 22 April 2004 at 10 a.m., when it will start the
second round of oral argument by hearing Belgium, the Netherlands, Canada and Portugal. Thank
you.
The Court is adjourned.
The Court rose 1 p.m.
___________
Public sitting held on Wednesday 21 April 2004, at 10 a.m., at the Peace Palace, President Shi presiding