Non-Corrigé
Uncorrected
CR 2008/9
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2008
Public sitting
held on Monday 26 May 2008, at 3 p.m., at the Peace Palace,
President Higgins presiding,
in the case concerning Application of the Convention on the Prevention
and Punishment of the Crime of Genocide
(Croatia v. Serbia)
________________
VERBATIM RECORD
________________
ANNÉE 2008
Audience publique
tenue le lundi 26 mai 2008, à 15 heures, au Palais de la Paix,
sous la présidence de Mme Higgins, président,
en l’affaire relative à l’Application de la convention pour la prévention
et la répression du crime de génocide
(Croatie c. Serbie)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presieitgins
Vice-Presi-nhtasawneh
Judges Ranjeva
Shi
Koroma
Parra-Aranguren
Buergenthal
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Judges ad hoc Vukas
Kreća
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
Al-K.vsce-prh,ident
RaMjev.
Shi
Koroma
Parra-Aranguren
Buergenthal
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Sjoteiskov,
Vukas .
Kre ća, juges ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of the Republic of Croatia is represented by:
H.E. Mr. Ivan Šimonović, Ambassador, Professor of Law at the University of Zagreb Law Faculty,
as Agent;
H.E. Ms Andreja Metelko-Zgombić, Ambassador, Head of International Law Service, Ministry of
Foreign Affairs and European Integration,
Ms Maja Seršić, Professor of Law at the University of Zagreb Law Faculty,
H.E. Mr. Frane Krnić, Ambassador of the Republic of Croatia to the Kingdom of the Netherlands,
Cso-Agents;
Mr. James Crawford, S.C., Whewell Professor of In ternational Law, University of Cambridge, and
Barrister, Matrix Chambers,
Mr.PhilippeSands, Q.C., Professor of Law, Univ ersity College London, and Barrister, Matrix
Chambers,
as Counsel and Advocates;
Mr. Mirjan Damaska, Sterling Professor of Law, Yale Law School,
Ms Anjolie Singh, Member of the Indian Bar,
as Counsel;
Mr. Ivan Salopek, Third Secretary of the Embassy of the Republic of Croatia in the Kingdom of the
Netherlands,
MsJanaŠpero, Ministry of Justice, Directorat e for Co-operation with International Criminal
Courts,
as Advisers.
The Government of the Republic of Serbia is represented by:
Mr. Tibor Varady, S.J.D. (Harvard), Professor of Law at the Central European University,
Budapest and Emory University, Atlanta,
as Agent;
Mr. Saša Obradović, First Counsellor of the Embassy of the Republic of Serbia in the Kingdom of
the Netherlands,
Cso-Agent; - 5 -
Le Gouvernement de la République de Croatie est représenté par :
S. Exc. M. Ivan Šimonović, ambassadeur, professeur de droit à la faculté de droit de l’Université de
Zagreb,
comme agent ;
S. Exc. Mme Andreja Metelko-Zgombi ć, ambassadeur, chef du service de droit international du
ministère des affaires étrangères et de l’intégration européenne,
Mme Maja Seršić, professeur de droit à la faculté de droit de l’Université de Zagreb,
S. Exc. M. Frane Krni ć, ambassadeur de la République de Croatie auprès du Royaume des
Pays-Bas,
comme coagents ;
M. James Crawford, S.C., professeur de droit international, titulaire de la chaire Whewell à
l’Université de Cambridge, avocat, Matrix Chambers,
M. Philippe Sands, Q.C., professeur de droit au Un iversity College de Londres, avocat, Matrix
Chambers,
comme conseils et avocats ;
M. Mirjan Damaska, professeur de droit, titulaire de la chaire Sterling, Yale Law School,
Mme Anjolie Singh, membre du barreau indien,
comme conseils ;
M. Ivan Salopek, troisième secrétaire à l’ambassade de Croatie aux Pays-Bas,
Mme Jana Špero, direction de la coopération avec la Cour pénale internationale au ministère de la
justice,
comme conseillers.
Le Gouvernement de la République de Serbie est représenté par :
M. Tibor Varady, S.J.D. (Harvard), professeur de droit à l’Université d’Europe centrale de
Budapest et à l’Université Emory d’Atlanta,
comme agent ;
M. Saša Obradović, premier conseiller à l’ambassade de la République de Serbie au Royaume des
Pays-Bas,
comme coagent ; - 6 -
Mr. Andreas Zimmermann, LL.M. (Harvard), Professor of Law at the University of Kiel, Directo
r
of the Walther-Schücking Institute,
Mr. Vladimir Djeri ć, LL.M. (Michigan), Attorney at Law, Mikijelj, Jankovi ć and Bogdanovi ć,
Belgrade, President of the International Law Association of Serbia,
as Counsel and Advocates;
H.E. Mr. Radoslav Stojanović, S.J.D., Ambassador of the Republic of Serbia to the Kingdom of the
Netherlands, Professor at the Belgrade University School of Law,
Ms Sanja Milinković, LL.M., Ambassador, Head of the International Legal Service of the Ministry
of Foreign Affairs of the Republic of Serbia,
Mr. Vladimir Cvetković, First Secretary of the Embassy of the Republic of Serbia in the Kingdom
of the Netherlands,
Ms Jelena Jolić, M.Sc. (London School of Economics and Political Science),
Mr. Igor Olujić, Attorney at Law, Belgrade,
Mr. Svetislav Rabrenović, LL.M. (Michigan),
Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Walther-Schücking Institute, University of Kiel,
Ms Dina Dobrković, LL.B.,
as Advisers. - 7 -
M. Andreas Zimmermann, LL.M. (Harvard), professeur de droit à l’Université de Kiel, directeur de
l’Institut Walther-Schücking,
M. Vladimir Djerić, LL.M. (Michigan), avocat, cabinet Mikijelj, Jankovi ć & Bogdanovi ć,
Belgrade, et président de l’association de droit international de la Serbie,
comme conseils et avocats ;
S. Exc. M. Radoslav Stojanović, S.J.D., ambassadeur de la République de Serbie auprès du
Royaume des Pays-Bas, professeur à la faculté de droit de l’Université de Belgrade,
Mme Sanja Milinković, LL.M., ambassadeur, chef du service juridique international du ministère
des affaires étrangères de la République de Serbie,
M. Vladimir Cvetković, premier secrétaire à l’ambassade de la République de Serbie au Royaume
des Pays-Bas,
Mme Jelena Jolić, M.Sc. (London School of Economics and Political Science),
M. Igor Olujić, avocat, Belgrade,
M. Svetislav Rabrenović, LL.M. (Michigan),
M. Christian J. Tams, LL.M., Ph.D. (Cambridge), Institut Walther-Schücking, Université de Kiel,
Mme Dina Dobrković, LL.B,
comme conseillers. - 8 -
The PRESIDENT: Please be seated. Mr. Djerić, you have the floor.
DMJr.RI Ć: Thank you very much, Madam President.
Madam President, Members of the Court, to begin, I would just like to say that it has been
brought to my attention that I made an unintenti onal mistake in my speech before the lunch break.
In paragraph 10 I referred to the fact that Bosnia and Herzegovina was established in the spring of
1991. Of course, the correct date is the spring of 1992.
SECOND P RELIMINARY OBJECTION : INADMISSIBILITY OF APPLICATION
AS FAR AS IT RELATES TO EVENTS PRIOR TO 27 APRIL 1992
(continued)
26. Coming back to my speech. Before the lunch break, I had begun discussing our second
preliminary objection according to which the Application is inadmissible in the part relating to acts
or omissions that occurred prior to 27 April 1992, the date on which the FRY, as the Respondent in
the present case, came into bei ng. The Applicant invoked Article10, paragraph2, of the ILC
Articles on State Responsibility in order to tie the FRY to the events that occurred before it came
into being. We have demonstrated that, as a matter of law, this provision is simply not applicable
to the present case.
27. Further, we have demonstrated that the SFRY organs were not de facto organs of the
emerging FRY”, as the Applicant claims, and thatthe SFRY, the former Yugoslavia, existed as
subject of international law in 1991 and early 1992. At that time, the SFRY did conclude bilateral
and multilateral treatiesdid attend international conferencs and meetings of international
organizations, and did maintain diplomatic relations with othe r States. All this is evidence of the
continued acceptance of the SFRY as a functioning State in 1991 and early 1992. Moreover, the
federal organs of the former Yugoslavia, as well as their chief officers, were not exclusively
Serbian, but included individuals from other constituent republics of the SFRY. In that regard, one
cannot assume that there was continuity betweenthe SFRY and the FRY, as the SFRY federal
authorities were not identical with those of e FRY. In conclusion, it was the SFRY that
performed governmental functions at that time and, consequently, the responsibility arising from its - 9 -
acts and omissions can only be tied to the SFRY, the former Yugoslavia, and not to the FRY,
Serbia and Montenegro, which came into being on 27 April 1992.
Whether this preliminary objection belongs to admissibility or to the merits
28. Madam President, now I would like to address the Applicant’s argument that this
1
preliminary objection “goes to the merits and does not raise issues of admissibility” . In particular,
the Applicant contends that our second preliminar y objection is not concerned with any of the
factors that would make it inappropriate for the Court to deal with the case, and that it consequently
2
is not an admissibility objection .
29. However, the Respondent has never trie d to justify its preliminary objection on the
ground that it would be inappropriate for the Cour t to deal with the case. We have used the
inadmissibility objection in order to bring to the Court a matter which shows the absence of
personal jurisdiction, but cannot simply be equated with jurisdiction ratione personae since it raises
a more fundamental question regarding the pers on of the Respondent: whether the Respondent
existed before 27April1992 and whether a lawsui t can be brought against it for the events that
occurred before it came into existence. This obj ection is an admissibility objection different from
the objection related to the existence of jurisdiction ratione temporis under the Genocide
Convention. In the Written Observations, the Appli cant has failed to distinguish these two issues.
However, the difference is clear if one, arguendo, considers the situation in which the Court would
determine that it has the jurisdiction under the Genocide Convention extending to the period before
the date on which the Respondent came into existence. This is only for the sake of argument: as
Professor Zimmermann will demonstrate, the Genocid e Convention cannot be applicable to events
before 27April1992. But, even in this hypothetical case, the Application would still be
inadmissible in relation to the claims that relate to the period before 27April1992, the date on
which the Respondent came into existence. Moreover , let me add that in a part of the period to
which the Applicant is trying to stretch jurisdiction, none of the Parties existed . Croatia became a
State on 8October1991. Neither the Applicant nor the Respondent could have any rights or
1
Written Observations, paras. 3.5-3.9.
2Ibid., para. 3.8. - 10 -
obligations before they came into existence. Claims relating to the acts that occurred before the
Parties came into existence would have to be d eclared inadmissible even if the jurisdiction were
established.
30. Madam President, regardless of how one classifies our second preliminary objection, it
cannot be disputed that this objection falls under Article 79, paragraph 1, of the 1978 Rules which
defined preliminary objections in the following way:
“Any objection by the respondent to the jurisdiction of the Court or to the
admissibility of the application, or other objection the decision upon which is
requested before any further proceedings on the merits . . .” (Emphasis added.)
In line with this rule, the Court has taken the positi on that it will deal with any objection that needs
to be resolved before proceeding to the merits, and not just with those regarding jurisdiction and
admissibility (see, e.g,. 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, p. 26, para. 47) ⎯ provided, of
course, that they are of an exclusively prelimin ary nature. In any case, the Court has taken the
position that a strict classification of preliminary objections was not deemed to be of “critical
importance” (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 429, para. 84).
31. Madam President, the second preliminary objection has an exclusively preliminary
nature. We simply say that the Respondent w as not in existence before 27April1992, and
therefore not in existence at the time of the events that occurred prior to that date. The question of
whether the FRY did or did not exist before 27 April 1992 has nothing to do with the question of
the existence or non-existence of cer tain events that are alleged to have occurred prior to that date,
which form the subject-matter of the Applicant’s claim. The answer to the former question does
not prejudge the latter.
32. As far as the question of attributability is concerned, the general rule is that conduct
cannot be attributed to an entity that did not ex ist at the time when the conduct occurred. Under
this rule responsibility of the FRY could not prima facie arise, and the Application would be prima
facie inadmissible. - 11 -
33. The only exception to this principle is formulated in Article 10, paragraph 2, of the ILC
Articles on State Responsibility. However, we have demonstrated that this exception simply does
not apply to the present case as a matter of law, a nd regardless of a possible dispute that may arise
over facts of the case.
34. Moreover, even if the exception under Article 10, paragraph 2, would be applicable, quid
non, it should be recalled that this provision is a rule of attribution, a secondary rule, whose
application depends on the existence of a primary rule . Only if there is a primary rule imposing an
international obligation on an in surrectional movement, the secondary rule of attribution, such as
the one in Article10, paragraph2, could come into play. As the Court said in the
Gabčíkovo-Nagymaros case,
“A determination of whether a convention is or is not in force, and whether it
has or has not been properly suspended or denounced, is to be made pursuant to the
law of treaties. On the other hand, an evaluation of the extent to which the suspension
or denunciation of a convention, seen as in compatible with the law of treaties,
involves the responsibility of the State which proceeded to it, is to be made under the
law of State responsibility.” ( Gabčíkovo-Nagymaros Project (Hungary/Slovakia),
Judgment, I.C.J. Reports 1997, p. 38, para. 47.)
35. Since this is a case brought under ArticleIX of the Genocide Convention, the primary
rule could only be the Genocide Convention. Whether the Genocide Convention was in force for
the movement in question, and whether it could be a party to this convention is an issue of an
exclusively preliminary nature. In other words, th e issue here is not the one of attributability and
merits, as the Applicant would like to frame it. Rather, the main issue is the existence of the
primary rule, which in the present case necessarily means the existen ce of the title of jurisdiction,
since the instrument containing the primary rule ⎯ the Genocide Convention ⎯ is the only
conceivable title of jurisdiction. Therefore, as far as events that took place before the creation of
the FRY are concerned, and provided that Article10, paragraph2, could be applicable, quid non,
the Court would first have to deal with the ques tion of whether the movement in the sense of this
provision could, as a matter of principle, be a party to the Genocide Convention. In order to
resolve this issue, the Court will not have to deal with any aspect of the merits. Neither will it have
to discuss events that gave rise to the present cl aim, nor even to consider the existence of a
“movement”. This issue therefore cannot possibly prejudge the merits and is clearly of an - 12 -
exclusively preliminary nature. Its resolution is necessary before any further proceedings on the
merits.
36. Madam President, only if the Genocide Conve ntion as a whole, including its Article IX,
was applicable as treaty law to the supposed “movement” that succeeded in establishing the FRY,
quid non, then the acts of this movement could be properly submitted to the jurisdiction of this
Court. We respectfully submit that this is not the case. It is submitted that any such movement
could be bound by general rules of international law but not by the Genocide Convention to which
only States can be parties. If there was no treaty ob ligation, consequently there could be no treaty
3
breach .
37. Let me immediately add that all actors in the conflict were at all times bound by the
customary international law prohibition of genocide. Thus, all individuals who breached this
obligation would be criminally liable under interna tional law, including before the ICTY. It is
known however that no individual has ever been i ndicted for genocide against Croats in Croatia
before the ICTY. The present case, does not deal with individual criminal responsibility, but
concerns State responsibility. If one is to raise the possibility of State responsibility for a breach of
a treaty on the basis of an in statu nascendi theory, one is due to answer, in the first place, the
question of whether treaty law obligations were applicable to non-State actors.
38. In conclusion, the second preliminary objection is of an exclusively preliminary nature as
it concerns the general rule that a State cannot be responsible for events that had occurred before it
came into existence. Furthermore, the objection is also of an exclusively preliminary nature when
it deals with the applicability of Article10, paragraph2, of the ILC Articles on State
Responsibility. Even if the exception under Article10, paragraph2, would apply, quid non , its
application would depend on the existence of a pr imary rule, which in the present case is also the
only source of the Court’s jurisdiction. Therefore, in this case, like in every case, the Court would
have first to consider the jurisdictional title which is a matter of an exclusively preliminary nature.
In that regard, the Respondent submits that a move ment in the sense of Article 10, paragraph 2, of
3
See Article 13 of ILC Articles on State Responsibility. - 13 -
the ILC Articles on State Responsibility cannot possi bly be a party to the Genocide Convention,
which is the primary rule and the sole jurisdictional title in the present case.
39. Madam President, distinguished Members of the Court, with this I will conclude my
presentation and I would like to thank you for your kind attention. Madam President, I would be
grateful if you could call Professor Zimmermann to the Bar.
The PRESIDENT: Thank you, Mr. Djerić. I now call Professor Zimmermann.
Mr. ZIMMERMANN: Thank you, Madam President.
I.S COPE OF JURISDICTION RATIONE TEMPORIS
1. Madam President, Members of the Court, I will now turn to the next issue, namely that the
application by Croatia cannot be entertained to the ex tent that it refers to acts or omissions prior to
27 April 1992 because this honourable Court lacks jurisdiction ratione temporis.
2. Let me first reiterate, however, that this objection is raised in addition to the arguments
which we have put forward so far and which have demonstrated that this Court does not have
jurisdiction to hear this case at all.
3. This objection ratione temporis is also raised in addition to the argument that this Court
already lacks jurisdiction ratione personae with regard to acts that occurred prior to
27 April 1992 ⎯ an argument my colleague Vladimir Djerić has developed beforehand.
4. With regard to the question whether, and if so to what extent, this Court may exercise
jurisdiction vis-à-vis Serbia by virtue of Article IX of the Genocide Convention, it is essential to
distinguish clearly two questions:
⎯ First, when did Article IX of the Genocide Conven tion enter into force as between Croatia and
Serbia, provided this Court should find that it ind eed entered into force at all as between these
two Parties regardless of the valid reservation Serbia has made as to ArticleIX of the
Convention. In that regard, I will now demonstrate that the earliest possible point in time could
have been 27 April 1992.
⎯ Second, I will also demonstrate that the Genocide Convention including the jurisdictional
clause contained in its Article IX cannot be applied with regard to acts which occurred before - 14 -
Serbia came into existence as a State, and before it could therefore have become a party to the
Convention, i.e., that it may not be applied with regard to acts that occurred before
27 April 1992.
5. With regard to the earliest possible point in time in which Serbia could have become
bound by ArticleIX of the Genocide Convention, the starting-point is that Serbia (at that time
named FRY) ⎯ that is the Respondent in this case ⎯ only came into existence on 27 April 1992.
Thus, it is beyond doubt that ⎯ as my colleague Tibor Varady has already demonstrated ⎯ it did
not exist as an international legal person beforehand.
6. The only way to find otherwise would be to consider Serbia to be identical with the former
Socialist Federal Republic of Yugoslavia. But ⎯ as we all know ⎯ there is general agreement that
this is not the case.
As a matter of fact, such claim of identit y has always consistently and vigorously been
contested by Croatia and the other successor States of the former Yugoslavia.
Furthermore, the fact that the FRY was admitted to the United Nations as a new Member has
also proven ⎯ if need existed ⎯ that the FRY, now Serbia, is a successor State of the former
Socialist Federal Republic of Yugoslavia, the so-called “former Yugoslavia”.
Finally, Bosnia and Herzegovina, Croatia, the former Yugoslav Republic of Macedonia, the
Republic of Slovenia and the FRY have entered into an “Agreement on Succession Issues” in
which these States declare that they are ⎯ “in sovereign equality the five successor States to the
4
former Socialist Federal Republic of Yugoslavia . . .” .
7. As a successor State to the former Y ugoslavia, the FRY, now Serbia, could have ⎯ if
ever ⎯ only become a Contracting Party to the Genocide Convention and thus could have only
become bound by its ArticleIX, at the earliest at the time itself came into existence ⎯ and that
indeed is 27 April 1992.
8. That fact is confirmed by the very practice of Croatia itself. Croatia stated with regard to
its own situation ⎯ and I quote from the Croatian notification of succession concerning treaties
entered into by the former Yugoslavia ⎯ that treaties of the former Yugoslavia to which it, Croatia,
4Agreement on Succession Issues Between the Five Succe ssor States of the Former State of Yugoslavia,
ILM 41 (2002), 3; emphasis added. - 15 -
had succeeded by way of a notification of successi on shall “take effect from 8 October, 1991, the
date on which the Republic of Croatia became independent” 5.
9. Accordingly, even if one was not to follow our well-founded position that Serbia only
became bound by the Genocide Convention when it acceded to it in 2001 and that it never became
bound by its Article IX, the only possible point in time at which Serbia might have become bound
by the Genocide Convention was ⎯ according to well-established practice and in the same way
Croatia put it with regard to its own case in its own notifications of succession ⎯ the date on which
the FRY, now Serbia, became an independent State ⎯ and that, indeed, is 27 April 1992.
10. Besides, in that regard the reaction of both, Bosnia and Herzegovina as well as that of
Croatia itself, to the accession of the FRY and its reservation to ArticleIX of the Genocide
Convention is quite telling.
11. Bosnia and Herzegovina stated in its objection of 27December2001: “the Federal
Republic of Yugoslavia has effectively succeeded the former Socialist Federal Republic of
Yugoslavia as of 27April1992 (the date of the proclamation of the FRY) as a Party to the
6
Genocide Convention” . And the Bosnian objection continued and stated that 27 April 1992 is “the
day on which FRY became bound to (sic!) the Genocide Convention . . .” 7 .
12. Quite similarly Croatia stated in its objection that the FRY, now Serbia, was bound by
the Genocide Convention “since its emergence as one of the five equal successor states to the
former Socialist Federa l Republic of Yugoslavia” 8. Let me quote again: “is bound since its
9
emergence as a successor state to the former Yugoslavia” .
13. Indeed, in its Written Observations 10, Croatia itself confirms that the FRY, now Serbia,
came into existence on the day a formal proclamati on of the parliaments of Serbia and Montenegro
was adopted to that end, that is on 27 April 1992.
5United Nations Treaty Collection Database, Multilateral Treaties Deposited with the Secretary-General, Status
as at 31 December 2005, Historical information, p. XII.
6United Nations Treaty Collection Database, Multilateral Treaties Deposited with the Secretary-General, Status
as at 31 December 2005, Chap. IV, 1. p. 133, footnote 15; emphasis added.
7Ibid.
8Ibid.
9Ibid.
10Written Observations of the Republic of Croatia (hereafter “Written Observations”), para. 3.25. - 16 -
14. Now, given that Serbia only came into ex istence as a State by 27April1992, it thus
could have only become bound by the Genocide Convention and its Article IX, if ever, by that very
date.
15. But if the FRY, now Serbia, had not even existed before 27April1992 as a State and
thus could have not been a contracting party to the Genocide Convention beforehand, how could it
then have conferred jurisdiction on the Court unde r Article IX of the Genocide Convention for acts
prior to that date?
16. In that regard, it is first important to note that this issue was not settled by the Court in its
1996Judgment on jurisdiction in the case brought by Bosnia and Herzegovina against the FRY
which solely dealt with the possible retroactive effect of the Bosnian notification of succession.
17. In particular, it is relevant to note that the scope of jurisdiction vis-à-vis the FRY was not
even argued by the parties. Even less so was it decided by the Court.
18. In paragraph 17 of its 1996 Judgment, the Cour t stressed this point when it stated that it
was ⎯ at that time and as between the two parties, namely Bosnia and Herzegovina and the
FRY ⎯ undisputed that “Yugoslavia” was a party to the Genocide Convention and that it was
bound by its Article IX.
19. In our case, however, the situation is completely different:
⎯ first, in sharp contrast to the situation of 1996, it is now clear and undisputed that Serbia is not
identical to the State that had ratified the Genocide Convention without reservation in 1950;
⎯ second, the FRY, now Serbia, has made a reservation as to its Article IX when it acceded to the
Genocide Convention;
⎯ third, it is therefore disputed by the Respondent, and indeed contradicted by facts, that Serbia
ever became bound by Article IX of the Genocide Convention;
⎯ fourth, during the proceedings leading to the 1996 Judgment, the only point argued by the FRY
was that the Bosnian notification of succession could not have a retroactive effect as to the date
of the independence of Bosnia and Herzegovina. On the other hand, the status of the FRY with
regard to Article IX of the Genocide Convention was not argued since it was not disputed.
20. Madam President, Members of the Court, in 1996, the question whether the jurisdiction
of the Court vis-à-vis Serbia could extend to a lleged genocidal acts which have occurred before - 17 -
27April1992 and before Serbia became a c ontracting party to the Genocide Convention was
neither raised, nor was it even discussed, nor could it in any event be binding on the Parties in this
case by virtue of Article 59 of the Court’s Statute.
21. But what is then the relevance of the holding of the 1996Judgment for our case?
Following the logic of the 1996Judgment, Croatia could ⎯ like Bosnia and Herzegovina ⎯ by
notifying its succession become a contracting party to the Genocide Convention ⎯ this is not
challenged by the Respondent. And ⎯ as JudgeShahabuddeen stated ⎯ a successor State which
notifies its succession then becomes a party to th e Genocide Convention “as from the date of its
independence” (case concerning Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections,
Judgment, I.C.J. Reports 1996(II) ; separate opinion of JudgeShahabuddeen, p.636). Indeed ⎯
and I quote once more from his separate opinion ⎯ “the necessary consensual bond is completed
when the successor State decides to avail itself of the undertaking by regarding itself as a party to
the treaty” (ibid.).Thus Croatia, by virtue of havi ng notified its succession to the Genocide
Convention, is to be considered ⎯ in the words of Judge Shahabuddeen ⎯ “as continuing as from
independence any status which the predecessor had” ( ibid., as to the situation of Bosnia and
Herzegovina; emphasis added) and must then also be treated ⎯ again, in the words of
Judge Shahabuddeen ⎯ “as having been a party to the Convention as from the date of its
independence” (ibid., as to the situation of Bosnia and Herzegovina; emphasis added).
22. I assume there is consensus in this room in that regard. But it also necessarily implies
that the very same considerations must then also apply vis-à-vis Serbia, since ⎯ as is
acknowledged by Croatia ⎯ Serbia is one of five equal successor States to the former Yugoslavia.
23. Accordingly, like Bosnia and Her zegovina and like Croatia itself, Serbia ⎯ if ever it did
become bound by ArticleIX of the Genocide Convention at all, quid non ⎯ could have only
become bound by the Genocide Convention at th e earliest as from the date it came into
existence ⎯ and that, indeed, is 27 April 1992.
24. As a matter of fact, the consensual bond between Croatia and the newly established FRY,
now Serbia, with regard to the Genocide Convention could have only been completed after the
FRY was created ⎯ until that time such consensual bond co uld only exist and did exist between - 18 -
Croatia and the then still existing Socialist Federal Republic of Yugoslavia. Such consensual bond
could, however, not exist vis-à-vis a State that itself did not exist yet, and which therefore could not
yet be a contracting party to the Genocide Conve ntion and its ArticleIX, namely the FRY, now
Serbia.
25. Thus, the required consensual bond could not and did not exist vis-à-vis Serbia before
27 April 1992 ⎯ since the FRY, now Serbia, itself was only created and came into existence on
that very date. Therefore, Serbia cannot be subj ect to the Court’s jurisdiction concerning acts that
have occurred beforehand.
26. The only possibility to establish the status of Serbia as a contracting party to the
Genocide Convention for any point in time prior to 27April1992 would be to argue that Serbia
continues the international legal personality of the former Yugoslavia ⎯ but one might assume that
there is consensus in this Great Hall of Justice that this is not the case.
27. Madam President, honourable Members of th is Court, accordingly, any finding that the
Court has jurisdiction over Serbia as to acts that allegedly have taken place before 27 April 1992
would entail applying the Genocide Convention and its Article IX retroactively for a period of time
in which the Genocide Convention had not yet entered into force as between the parties ⎯ indeed
for a period of time in which the Respondent did not even exist yet.
28. The Applicant wants us indeed to believe that the Genocide Convention and its
Article IX would cover acts which occurred before the required consensual bond had been created
between Croatia on the one hand and the FRY, now Serbia, on the other ⎯ yes, that it could cover
acts which occurred before Serbia even existed as a State.
29. The question of a possible retroactive application of a given treaty is regulated by
Article28 of the Vienna Convention on the La w of Treaties, which can be taken as having
enshrined the customary international law in the matter. Article 28 provides ⎯ and let me read it
for the sake of convenience:
“Article 28. Non-retroactivity of treaties
Unless a different intention appears from the treaty or is otherwise established,
its provisions do not bind a party in relation to any act or fact which took place or any
situation which ceased to exist before the date of the entry into force of the treaty with
respect to that party.” (Emphasis added.) - 19 -
30. And even before the Vienna Convention on the Law of Treaties was drafted, this Court
had previously stated that a treaty may only be applied retroactively: “if there had been any special
clause or any special object necessitating retroactive interpretation” ( Ambatielos (Greece v. United
Kingdom), Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 40.)
31. Or, as Sir Gerald Fitzmaurice, then Special Rapporteur on the law of treaties of the
International Law Commission put it: “It is clear that only express terms or an absolutely
necessary inference can produce such a result . The presumption must always be against
retroactivity.”11
32. Thus, as a starting-point and as a matter of principle, treaties cannot be applied
retroactively ⎯ and more particularly ⎯ can even less be applied vis-à-vis a State ⎯ like the FRY,
now Serbia ⎯ that did not even exist during the period in question.
33. Given that the fundamental principle is that treaties are not to be applied retroactively,
the burden of proof lies with the Applicant to de monstrate that the Genocide Convention falls into
one of the two exceptions foreseen in Article 28 of the Vienna Convention on the Law of Treaties,
quid non.
34. Madam President, Members of the Court, Croatia has not shouldered this burden. As a
matter of fact, it has not even attempted to do so. Instead, what it simply did was to refer us to
what the Court said in 1996. However, as we ha ve demonstrated, the only question the Court was
faced with; the Court was accordingly addressing and, the Court decided in 1996, was whether the
notification of succession emanating from Bosnia and Herzegovina had the effect of making
Bosnia and Herzegovina a party by the time of its independence ⎯ nothing more and nothing else.
35. Indeed, what Croatia seems to imply is that the Court was applying one of the exceptions
provided for in Article28 of the Vienna Convention on the Law of Treaties ⎯ but without even
saying so. But it is very hard to believe that the Court did indeed want to apply one of the possible
exceptions referred to in Article28 of the Vi enna Convention on the Law of Treaties without
mentioning it.
1Fitzmaurice, G., “4th Report on the Law of Treaties”, Yearbook of the International Law Commission(YILC) ,
1959, Vol. II, p. 74, para. 122; emphasis added. - 20 -
36. This attempt by Croatia to second-guess the Court’s intention is further contradicted by
the fact that:
⎯ the parties, in 1996, had not argued this question at all;
⎯ and by the further fact that Bosnia and Herzegovina itself ⎯ as is demonstrated by the Bosnian
objection to the accession by the FRY, now Serbia, to the Genocide Convention I have
previously referred to ⎯ that Bosnia takes the position that the Genocide Convention only
applies between Bosnia and Herzegovina and Serbia at the earliest as from 27 April 1992;
⎯ and further given that the FRY, now Serbia, only came into existence as a State by said date.
37. Instead, what the Court simply did in 1996 was to confirm that a notification of
succession has the effect that the respective successor State shall be considered a party to the treaty
from the date of the succession of States, that is, from the date it came into existence as a new
State.
38. Madam President, Members of the Court, several eminent scholars have taken a clear-cut
position specifically as to a possible retroactive application of the Genocide Convention.
39. Already in 1949, Nehemiah Robinson in his commentary on the Genocide Convention
took the position that “it could hardly be conte nded that the Convention binds the signatories to
punish offenders for acts committed previous to its coming into force for the given country . . .” 12.
And Robinson then continues specifically with rega rd to its ArticleIX: “ArticleIX could not be
invoked, except for acts of the State following the ratification of the Convention . . .” 13.
40. And William Schabas specifically addresses the question whether the exception provided
for in Article28 of the Vienna Convention on th e Law of Treaties may apply as to the Genocide
Convention in his book on genocide:
“According to Article 28 of the Vienna Convention on the Law of Treaties,
‘(u)nless a different intention appears from the treaty or is otherwise established, its
provisions do not bind a party in relation to any act or fact which took place or any
situation which ceased to exist before the date of the entry into force of the treaty with
respect to that party’... There is not hing in the Genocide Convention to suggest ‘a
different intention’. Therefore, ‘(t)he simp le fact is that the Genocide Convention is
14
not applicable to acts committed before its effective date’” .
12
Robinson, N., The Genocide Convention, 1960, Institute of Jewish Affairs, World Jewish Congress, p. 114.
13Ibid.
14Schabas, W., Genocide in International Law, 2000, p. 541. - 21 -
And Schabas then also further continues: “the operative clauses of the Convention, including
Article IX, can only apply to genocide committed subsequent to its entry into force with respect to a
given State party” 15.
41. Croatia, however, attempts to rely on the object and purpose of the Genocide Convention
which ⎯ in its view ⎯ necessitates a retroactive application of said Convention ⎯ an assumed
retroactive application with regard to a time pe riod in which the Respondent did not even exist as
an international person.
42. But let us all first note that Article 28 of the Vienna Convention on the Law of Treaties
does not refer to the object and purpose of a gi ven treaty. Instead, it uses a significantly more
stringent formula by requiring that such a intention must “appear from the treaty”.
43. The only argument supporting the far-fetched Croatian interpretation of the jurisdictional
clause contained in ArticleIX, which purports to apply it to acts which allegedly occurred while
the Respondent did not yet exist, is an alleged time gap in th e protection provided for by the
16
Convention ⎯ an argument that cannot however override basic principles of treaty law.
Moreover, the Convention continued to apply as from the time Croatia came into existence as
between Croatia on the one hand (as having alr eady succeeded to the Genocide Convention) and
the Socialist Federal Republic of Yugoslavia on the other. There was therefore no such alleged
time gap whatsoever.
44. The fact that ArticleIX of the Genocid e Convention cannot be applied retroactively is
also confirmed by the drafting history of the Vienna Convention on the Law of Treaties itself,
where the ILC explicitly stated in its commentary, particularly with regard to jurisdictional clauses:
“when a jurisdictional clause is attached to th e substantive clauses of a treaty as a means of
securing their due application, the non-retroactivity principle may operate to limit ratione temporis
the application of the jurisdictional clause” 17.
45. Finally, the approach proposed by the A pplicant would lead to rather far-reaching and
even almost absurd results. It would widely ope n the Court’s jurisdictional gates, since it would
15
Ibid., emphasis added.
16Written Observations, para. 3.14.
17Draft Articles on the Law of Treaties with commentaries, adopted by the ILC at its Eighteenth Session,
UNCLT, First and Second Sessions, Vienna, 26 March-24 May 1969 and 9 April-22 May 1969, Official Record, p.32,
para. 2. - 22 -
provide for the possibility to bring before the Cour t all alleged acts of genocide committed by any
of the by now 140 parties of the Genocide Conventi on, regardless of the question of whether they
have been committed before or after the Genocide Convention had entered into force for the
respective State or States.
46.Asamatteriffact,ifonewereto follow Croatia’s approach, the Court would have
jurisdiction regardless of the question whether the respective State had even existed at the crucial
time or not. One cannot but state that this would involve the opening of a Pandora’s box ⎯ but the
Genocide Convention simply does not constitute such a box.
47. It follows from the above, that neither the Genocide Convention generally, nor its
ArticleIX, can be applied with regard to acts th at have allegedly occurre d before the FRY, now
Serbia, came into existence as a State, namely, as of 27 April 1992.
48. Accordingly, this Court may in any event not exercise jurisdiction with regard to acts that
occurred before the FRY, now Serbia, came into ex istence as a new State, that is that it may not
exercise jurisdiction with regard to acts that occurred before the date I have now mentioned several
times.
49. Madam President, honourable Members of th e Court, let me now turn to our third
preliminary objection which relates to some spec ific requests by the Applicant, namely those
concerning the surrender of persons, the further request to provide information about missing
persons, and finally, the request for the return of cultural property, all of which either do not come
within the Court’s jurisdiction under ArticleIX of the Convention, or are otherwise inadmissible.
Let me first address the request of Croatia to submit certain persons to trial.
II.P RELIMINARY OBJECTION N O . 3
(a) Surrender of persons
50. Madam President, in its Written Observations, Croatia continues to claim that Serbia has
failed to submit to trial those persons who, as Croatia claims, are suspected of having committed
acts of genocide on the territory of Croatia and to ensure that those persons are being punished 1.
18
Written Observations, para. 4.2. - 23 -
The claim does not, however, come within the subjec t-matter jurisdiction of this Court for several
reasons.
51. First, Croatia itself accepts in its Written Observations that its submission is moot with
19
regard to those persons who have been transferred to the ICTY .
52. Yet, since 2000, five individuals accused of having committed crimes on the territory of
20
Croatia were arrested in Serbia and transferred to the ICTY . Serbia also co-operated in the
voluntary surrender of seven more persons indicted for allegedly having committed crimes in
21
Croatia .
53. As a matter of fact, there is only one person accused by the ICTY for crimes allegedly
committed in Croatia, namely Goran Hadži ć, an ethnic Serb from Croatia, who is still at large.
There are, of course, controversial explanations of his whereabouts. Yet, what is uncontroversial is
that Serbia transferred, or co-operated in the transfer of 12 out of 13 indictees.
54. It must also be noted that in the case of Mr. Hadži ć, as actually in all other indictments
relating to the war in Croatia, the ICTY indictment is limited to the commission of war crimes and
crimes against humanity. Said indictment does neither include nor even refer to the crime of
22
genocide .
55. Let me reiterate: no individual, including the only person still at large, accused of having
committed crimes in Croatia was ever indicted by the ICTY for having committed acts of genocide.
56. The obligation to co-operate with the IC TY arising under ArticleVI of the Genocide
Convention covers, however, as this Court has recently confirmed, solely co-operation with regard
to persons accused of genocide ( Application of the Convention on the Prevention and Punishment
of the Crime of Genocid e (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment of
26 February 2007, para. 448). It is for this reason alone, that any alleged non-co-operation with the
ICTY with regard to Goran Hadži ć does not even prima facie come within the purview of possible
19Ibid., para. 4.5.
20These are Slobodan Miloševi ć, Jovica Staniši ć, Franko Simatovi ć, Veselin Šljivancanin, and
Vladimir Kovačević.
21
These are Vojislav Šešelj, Mile Mrkši ć, Momčilo Perišić, Pavle Strugar, Miodrag Joki ć, Milan Marti ć, and
Miroslav Radić.
22Case No. IT-04-75-I, Prosecutor v. Goran Hadžić, Indictment dated 4 June 200. - 24 -
violations of the Genocide Convention. It does ne ither, therefore, come within the jurisdiction of
this honourable Court under Article IX of the Convention.
57. Second, Croatia claims that Serbia is unde r an obligation to itself punish its nationals for
alleged acts of genocide even when committed abroad, that is in Croatia 2. This Court has however
recently categorically confirmed, that the Genocide Convention generally, and its ArticleVI
specifically, “only obliges the Contracti ng Parties to institute and exercise territorial criminal
jurisdiction” (Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment of 26 February 2007,
para. 442; emphasis added).
The Court then continued in clear term s that the Convention “while it certainly does not
prohibit States, with respect to genocide, from conferring jurisdiction on their criminal courts based
on criteria other than where the crime was committed . . ., it does not oblige them to do so ” (ibid.,
emphasis added).
58. It follows that Serbia cannot, not even prima facie, be charged with not having tried
before its own courts those accused by Croatia of allegedl y having committed acts of genocide
outside the territory of Serbia, that is in Croatia. This is simply not an obligation arising under the
Genocide Convention.
59. At the same time, it is also important to stress that Serbia has indeed initiated a
significant number of criminal proceedings against individuals for other crimes, apart from
genocide, committed during the armed conflict in Croatia, and Serbian c ourts have pronounced
judgments indeed in those cases. It is also wort h noting that Croatian and Serbian authorities have
closely collaborated with regard to the prosecu tion of crimes committed in Croatia in a quite
24
significant number of cases .
60. Yet, at any rate, this Court itself confirme d that in a case arising under Article IX of the
Convention, it “is of course without jurisdiction ... to declare that the Respondent has breached
any obligations other than those under the Convention” (ibid., para. 449).
23
Memorial, para. 7.100.
24See the heading “Regional Cooperation” at: http://www.tuzilastvorz.org.rs/html_trz/PREDMETI_ENG.htm. - 25 -
61. Accordingly, even if this Court were to find generally that it has jurisdiction under
Article IX of the Convention, quid non, this Court is hindered from exercising jurisdiction as to the
allegation that Serbia has not punished individuals for having allegedly committed acts of genocide
outside its own territory, that is on the territory of Croatia.
62. Third, Croatia seems to also claim that Serbia has violated the Genocide Convention by
not handing over persons who ha ve allegedly committed acts of genocide to Croatia itself 2. Yet,
Croatia has not even indicated where such obligation should possibly derive from, given that the
only obligation to co-operate with regard to the punishment of persons accused of genocide is, as
this Court has recently confirmed, to be fo und in ArticleVI of the Genocide Convention
(Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, para.443).
This obligation is limited, however, to the co-ope ration with the international tribunal to which
Article VI of the Convention makes reference.
63. It follows that any such alleged non-co-operation with Croatia does not even possibly
amount to a violation of the Convention. Therefore, these claims do neither come within the
jurisdiction of this Court arising under Article IX of the Convention.
(b) Missing persons
64. Madam President, Members of the Court, let me now turn to our objection relating to the
request of Croatia to provide information as to the whereabouts of Croatian citizens missing as a
result of alleged acts of genocide.
65. We respectfully submit that — apart from the fact that the acts committed in Croatia do
not even prima facie amount to genocide and that b esides there is also a very significant number of
persons of Serb ethnicity who are still missing as a consequence of the war in Croatia— the
Croatian request has become moot because information which is available to Serbia has already
been provided to Croatia.
25
Written Observations, para. 4.6. - 26 -
66. It is self-evident that Croatia’s Written Observations dated 29 Apr il 2003 could only take
stock of the situation as it then existed. Ever since, however, both sides have even more
significantly increased their co-operation as to the location and identification of missing persons.
67. Inter alia, between 2002 and 2007, exhum ations have taken place in ten different places
26
in Serbia in the presence of Croatian representatives , whereby more than 200persons were
identified 27and as a result of which more than 70bodi es were transferred to the Republic of
Croatia 28.
68. In March 2007, the two sides concluded th at the previous series of exhumations “were
carried out in accordance with the [previous] ag reement, settled principles, working methodology
and professional standards” 29 .
69. Moreover, the parties put in place a system of “preliminary visits”, whereby each side
may request a visit of gravesites on the territory of the other side, if one side obtains information
about the location of a possible gravesite where missing persons might be found 30. As a matter of
31
fact, some of these preliminary visits have already taken place upon Croatian requests .
70. In addition to the above-stated activities, that is the conduct of planned exhumations,
identification and the transfer of mortal rema ins, Serbia has so far also acted upon various
individual requests of Croatia concerning verificati on of information, exhumations and transfer of
26
Sites where such exhumations took place include Novi Sad, Sremska Mitrovica, Indjija, Ruma, Šabac, Loznica,
Belgrade, Smederevo, Pančevo and Kovin.
27Addendum to the Response Le tter of the Commission for Humanitarian Issues and Missing Persons of Serbia
and Montenegro (i.e. Republic of Serbia) to allegations made by the President of the Bureau for Detained and Missing
Persons of the Republic of Croatia, Colonel Ivan Gruji ć, dated 14Jan.2008, p. 3 of the original text and p. 5 of the
English 28anslation.
Ibid.
29
Minutes from the meeting of the Commission for Missing Persons of the Government of Republic of Serbia and
the Commission for Detained and Missing Persons of the Gove rnment of Republic of Croatia held on 13-14 March 2007
in Belgrade, p. 6 of the original text and p. 7 of the English translation.
30Addendum to the response letter of the Commission for Humanitarian Issues and Missing Persons of Serbia and
Montenegro (i.e. Republic of Serbia) to allegations made by the President of the Bureau for Detained and Missing
Persons of the Republic of Croatia, Colonel Ivan Gruji ć, dated 14Jan.2008, p. 6 of the original text and p. 10 of the
English translation.
The existence of such an agreement has been confirmed by a statement given by Colonel Gruji ć after the joint
meeting of the two Committees held on 13-14 March 2007, reported in Glas javnosti daily, Lists and exhumations will be
a joint concern (Spiskovi i eshumacije bice zajednicka briga ), 15 March 2007, available at:
http://a31iva.glas-javnosti.co.yu/arhiva/2007/03/15/srpski/D07031402.sh….
Such visits took place at Sremska Kamenica and Sremski Karlovci. - 27 -
32
mortal remains . As part of such individualized ac tivities alone, mortal remains of another
33
29 persons were transferred from Serbia to Croatia .
71. Finally, both Serbia and Croatia are par ticipating in the work of the International
Commission for Missing Persons. It was already in 2002 that the Commission for Humanitarian
Issues and Missing Persons of the FRY signed an Agreement on Co-operation with this
International Commission for Missing Persons with a view of having the latter “assist in addressing
the issue of persons missing from the conflicts th at took place in Croatia and in BiH between 1991
34
and 1995” . In turn, Croatia only started exchanging data with said Commission sometime in
2005 35.
72. It is also worth noting that Croatia itself confirmed that this joint effort had a measurable
impact on solving the problem of missing persons 36.
73. These facts alone make the Croatian request inadmissible. The request for the delivery
of information as to the fate of missing persons is however also inadmissible for yet another reason.
74. Madam President, Members of the Court, both Parties have not only signed a “Protocol
37
on Co-operation” containing an obligation to exchange data about missing persons , but have also
concluded a formal Agreement on Normalization, Article 6 of which contains an unconditional and
unlimited obligation to exchange all available information about missing persons.
75. Croatia now attempts to rely on your jurisprudence in the Fisheries Jurisdiction case in
order to demonstrate that the above-mentioned bilateral agreements do not preclude the exercise of
jurisdiction under Article IX of the Genocide Convention 38.
32
Addendum to the response letter of the Commission for Humanitarian Issues and Missing Persons of Serbia and
Montenegro (i.e. Republic of Serbia) to allegations made by the President of the Bureau for Detained and Missing
Persons of the Republic of Croatia, Colonel Ivan Grujić, dated 14 Jan. 2008, pp. 3 and 6 of the original text and pp. 4 and
9 of the English translation.
33Addendum to the response letter of the Commission for Humanitarian Issues and Missing Persons of Serbia and
Montenegro (i.e. Republic of Serbia) to allegations made by the President of the Bureau for Detained and Missing
Persons of the Republic of Croatia, Colonel Ivan Grujić, dated 14Jan.2008, p. 3 of the original text and p. 5 of the
English34ranslation.
International Commission for Missing Pe rsons, Republic of Serbia fact-s heet, available at: http://www.ic-
mp.org/?page_id=27.
35Report of the Commission for Detained and Missing Persons of the Republic of Croatia on tracing detained and
missing persons in the period fromJ1an. 04 throughM 1arc2h006p., available at:
http://36dra.srce.hr/arhiva/10/7252/www.vlada.hr/Download/2006/03/09/14….
See Report of the Commission for Detained and Missing Persons of the Republic of Croatia on tracing detained
and missing persons in the period from 1 Jan. 2004 through 1 March 2006, ibid, p. 14, which states that: “its measurable
impact [i.e. of exchange of blood analysis results] can be seen in the identification of the identity of 50 remains exhumed
in Republic of Croatia, Bosnia and Herzegovina and Serbia and Montenegro”.
37
38For further details see Preliminary Objections, para. 5.7.
Written Observations, paras. 4.17-4.19. - 28 -
76. Yet, there are significant differences, as compared to the situation as it arose under the
interim agreement in the Fisheries Jurisdiction case.
77. First, unlike the British-Icelandic Agre ement, the 1996 Croatian-Serbian Agreement on
Normalization is unlimited in time. It does not even contain a termination clause.
78. Secondly, in the Fisheries Jurisdiction case, the Court based its reasoning on the fact that
the interim agreement had been concluded pending a settlement of the dispute which was already
sub judice, and where the parties were therefore e xpecting the Court to decide on the matter
anyhow. In contrast thereto, the 1996 Agreemen t was concluded three years before the current
case was even brought. This confirms the intention of both, Croatia and Serbia, to settle the matter
of missing persons themselves once and for all a nd bring about a comprehensive settlement of the
matter.
79. Finally, the Court in 1974 considered it as being particularly pertinent that the interim
agreement had contained an express saving clause (Fisheries Jurisdiction (United Kingdom v.
Iceland), Merits, Judgment, I.C.J. Reports 1974 , p.18, para.37). This stands in sharp contrast to
the case at hand, where Article 6 of the 1996 No rmalization Agreement contains an unconditional
intention of the parties to “solve the problem of missing persons” and to not only provide for some
kind of interim agreement or arrangement.
80. Croatia is therefore barred from now raisi ng the issue of missing persons as part of this
case.
81. This result was further corroborated during a meeting of the heads o
f governments of
Croatia and Serbia in November 2005. After said meeting, it was confirmed that with regard to the
problem of missing persons both sides ha d “firm intentions to have problems resolved through
39
direct contacts” .
82. Serbia therefore submits that Croatia’ s request for providing information about missing
persons is inadmissible.
39Website of the Government of the Republic of Croatia,Statements and Speeches of the President of the
Government “The President of the Government of the Republic of Croatia Sanader with the President of the Government
of the Republic of Serbia Kostunica, 23 ov2.005, available at: h ttp://www.vlada.hr/hr/naslovnica/
izjave_i_govori_predsjednika_vlade/2005/predsjednik_vlade_rh_sanader_s_predsjednikom_vlade_republike_srbije_kost
unicom. Translation from the original; emphasis added. - 29 -
83. Let me now move on to the last issue within this third preliminary objection, namely the
Croatian request for a return of cultural property.
(c) Request for the return of cultural property
84. Madam President, under ArticleIX of the Genocide Convention, this Court has solely
jurisdiction to decide upon disputes relating to “the interpretation, application or fulfilment” of the
Genocide Convention.
85. Thus the alleged acts, assuming they have n taken place and can be attributed to the
Respondent, that is, the seizure and/or destructi on of cultural property and their non-return, must
constitute acts of genocide in order for the Court to be able to exercise jurisdiction under Article IX
of the Convention.
86. Yet, this Court has recently confirmed that “the destruction of historical, cultural and
religious heritage cannot be cons idered to constitute the deliberat e infliction of conditions of life
calculated to bring about the physical destruction of the group . . . 40.
87. Accordingly, this Court has also found that such acts do not “fall within the categories of
acts of genocide set out in Article II of the Convention” 41.
88. Even less therefore does the request for the return of cultural property fall ⎯ not even
prima facie ⎯ within the ambit of the Genocide Convention.
89. Besides, such request h as also become moot and thus is to be also considered
inadmissible.
90. In April 2002, the FRY and the Repub lic of Croatia signed an Agreement on
42
Co-operation in the field of Culture and Education . This agreement created an
“Intergovernmental Commission for Restitution of Cultural Property of the Republic of Croatia and
Serbia and Montenegro” in the framework of wh ich ever since the return of cultural property
originating in Croatia and located in Serbia as a result of the war was organized.
40Ibid.
41Ibid.
42According to its Art. 18, para. 1, the Agreement entered into force as of 25 Feb. 2003. See declaration on entry
into force of the Agreement between the Federal Republic of Yugoslavia and Republic of Croatia on Co-operation in the
field of Culture and Cooperation, Official Gazette of the Republic of Croatia, International Agreements, No.8/03.
Official Journal of Serbia and Montenegro, International Agreements, No. 12/02. - 30 -
91. On the whole, during the period be tween 2001 and 2007 alone, 25,199objects were
returned from Serbia to Croatia 4, including, but not limited to, art collections from Vukovar such
as the so-called “Bauer collection”, as well as objects of art and sacral objects
belonging to catholic
churches and to various orthodox churches ⎯ and this has indeed been confirmed by Croatian
44
authorities .
92. Besides, there is not even a dispute betw een Croatia and Serbia as to the return of
cultural property dislocated in connection with the armed conflict.
93. Madam President, it is well-settled jurispr udence of this Court that “a dispute is a
disagreement on point of law or fact, a conflict of legal views or of interests between parties” (see
Mavrommatis Palestine Concessions, P.C.I.J. 1924, SeriesA, No.2 , p. 6, 11; see also Certain
Property (Liechtenstein v. Germany), Prelimi nary Objections, Judgment, I.C.J. Reports 2005 ,
p. 18, para. 24).
94. Yet, the above-mentioned Croatian-Serbia n Agreement on Co-operation in the field of
Culture and Education provides in its Article 10 that the Parties shall return cultural property to one
another in accordance with international law. Both Parties also agree that cultural property which
has its rightful owners in Croatia must be returned to Croatia.
95. Thus, it is the considered view of Serbia th at no dispute exists between the Parties in that
regard, even more so since cultura l property has to a large extent already been returned to Croatia
by Serbia, which has rendered the request moot and thus inadmissible. Even if there was a dispute,
it would not, however, as I have demonstrated, co me within the scope of application of the
Genocide Convention.
III. C ONCLUSION
96. Madam President, Members of the Court, let me conclude.
43Ministry of Culture of the Republic of Croatia, “Retur n of cultural property from Serbia to Croatia continues”,
25 April 2007, available at: http://www.min-kulture.hr/novost/default.aspx?id=2935.
44
Items returned include, as confirmed by Croatia itseinter alia, apart from the already mentioned objects
returned to the Vukovar City Museum, paintings from the Galle ry of Fine Arts in Osijek, books and wedding certificates
belonging to the Franciscan library in Churches of S. Phillip and Jakovo in Vukovar, returned in 2004; wooden
sculptures belonging to the Naive Sculptors Art Colony in Ernestinovo, also returned in 2004; icons part of the
iconostasis of the St. Georgius Church in Bobota near Vukovar, again returned in 2004; records belonging to the
municipality of Gracanac, returned in 2005; several pieces belonging to the Zagreb Archeological Museum, returned in
2006, as well as finally the cross, icons and the two sdoors, parts of the iconostasis (rood-screen) of the Bobota
Church, returned in 2007; see Ministry of Culture of the Re public of Croatia, Return of cultural property from Serbia to
Croatia continues, 25 April 2007, available at http://www.min-kulture.hr/novost/default.aspx?id=2935. - 31 -
97. I have demonstrated that the Court, even if it were to find that it has jurisdiction at all,
may not exercise jurisdiction with regard to acts that occurred before Serbia came into existence as
a State, that is, with regard to acts prior to 27 April 1992.
98. Furthermore, I have also shown that Serbia has fulfilled its obligati on to co-operate with
the ICTY with regard to persons indicted for crimes committed in Croatia. Let me reiterate,
however, once more, that none of these persons was ever indicted by the ICTY for genocide, and
that besides, there is no obligation arising under the Genocide Convention to either surrender
persons to another State, or to put them on trial for alleged acts of genocide committed abroad.
99. Serbia has also fully co-operated with Croatia with regard to the fate of missing persons.
Besides, both States have agreed to solve the matter through direct contacts, which renders the
respective request, which could in any way only apply to persons missing as a result of genocide,
inadmissible.
100. Finally, the request for the return of cultural property does not come within the scope of
application of the Genocide Convention. Besid es, it has also become moot because Serbia has
already returned such cultural property to Croatia.
Thank you very much for your kind attention.
The PRESIDENT: Thank you, Professor Zimmermann. We now call Professor Varady.
Mr. VARADY: Thank you very much.
C ONCLUDING REMARKS
1. Madam President, distinguished Members of the Court, I would like now to submit to
your attention a summary of our arguments presented this morning and this afternoon. Let me start
with the arguments just presented by my colleague Professor Zimmermann regarding our third
preliminary objection.
2. Professor Zimmermann demonstrated that a number of claims advanced by the Applicant
cannot be entertained, not only because the Court l acks jurisdiction, but also because these claims
are inadmissible, or moot, or both. The claim regarding “submission to trial of responsible
persons” cannot be entertained because the a lleged conduct— or inaction— is not even - 32 -
prima facie covered by Article VI of the Genocide Convention. For one reason, Article VI requests
co-operation with regard to persons accused of genocide— and no person was accused by the
ICTY for genocide allegedly committed in Croatia. Furthermore the claim is moot, since Serbia
has co-operated with the ICTY regarding persons indicted for crim es committed in Croatia. Serbia
transferred, or co-operated in the transfer of 12 out of 13 indictees.
3. As far as missing persons are concerned, it is true that not every missing person has been
found— and this applies to both Croats and Serb s. It is probably impossible to expect a
100percent success after an armed conflict. It is also true, however, that there is an ongoing
successful co-operation between Croatia and Serbia regarding missing persons. Agreements have
been signed with the stated aim to “solve the problem of missing persons”. Significant results have
been achieved. One could certainly discuss furt her improvement of the existing mechanisms, but
this does not belong to the setting of proceedings under the Genocide Convention.
4. The same applies to issues raised in connec tion with cultural property. It is clear that
cultural property should be restored to its rightful owners. But let me also say that the facts prove
that considerable progress has, indeed, been made since the time of the Croatian Application.
Among other things, between2001 and2007 only, 25,199objects of cultural property were
returned from Serbia to Croatia. There is an ongoi ng co-operation. In order to make myself clear,
let me say that it is painful, and it is also shamef ul, that the devastations engendered by the conflict
extended to culture as well. It is not my intenti on to mitigate, let alone to deny the significance of
this. But again, this is not the subject-matte r which can possibly belong to proceedings under
Article IX of the Genocide Convention.
5. Turning to our second preliminary objection, I would first like to reiterate that the
Respondent came into existence on 27 April 1992. The essence of the objection is that jurisdiction
cannot possibly be extended to a time period preceding the existence of the Respondent. First of
all, jurisdiction on the ground of ArticleIX of the Genocide Convention cannot be extended to
events which took place before the Parties to the dispute were bound by Article IX. Furthermore,
even if jurisdiction could be extended to events before a given State became bound, quid non ⎯ it
cannot be extended to events before it came into existence as a State. - 33 -
6. Madam President, our position is that the Respondent only became bound by the Genocide
Convention in2001, and it neve r became bound by ArticleIX. If one were to investigate which
might be the hypothetical moment when the Respondent could have become a party to the
Genocide Convention, the earliest possible moment is 27April1992. No earlier moment was
alleged by the Applicant either. This is a hypothesis which we are strongly contesting. But even if
one were to accept this hypothesis for the sake of argument, it could not lead to a retroactive
application of the Genocide Convention to a period before 27 April 1992.
7. But even if we were to accept for the sak e of argument two refu ted propositions–– one,
that the Respondent became bound by the Genocide Convention on 27April1992, and the other
one assuming that the Genocide Convention could apply retroactively ––, the result sought by the
Applicant would still not be reached. Claims pr eceding the existence of the Respondent are not
admissible. The Applicant tried to overcome this hurdle by positing as a conceivable exception the
conduct of a movement that succeeds in establishing a new State. The Applicant alleges that the
fact pattern of the dissolution of the former Yugoslavia fits under Article 10 of the ILC Articles on
State Responsibility.
8. But it does not fit. As was demonstrated by my colleague VladimirDjeri ć, Article10,
paragraph 2 of the ILC Articles is simply not app licable to the facts of our case. The Convention
was not in force with regard to the Respondent prior to 27 April 1992 ⎯ because the Respondent
did not exist; and it could not have been in for ce with regard to some movement either because
only States can be contracting parties to the Genocide Convention. Furthermore, the setting of the
dissolution of the former Yugoslavia is not even comparable with the scenario contemplated in
Article10, paragraph2. The conceptual framewo rk is completely different. The FRY was not
created as a result of decolonization, or secession, or following the success of an insurrectional or
other revolutionary movement. Let me conclude that there is simply no conceivable basis on which
the jurisdiction of this Court— assuming it had jurisdiction at all–– could be extended to a time
period preceding 27 April 1992.
9. Madam President, I would like now to turn to our first and primary preliminary objection.
This objection is not restricted to some specific cl aims or some specific time period. It is our
conviction that this honoured Court has no jurisdiction in this case. We have stated that our main - 34 -
objection against jurisdiction rests on two major facts: one, the Respondent did not continue the
personality and treaty status of the former Y ugoslavia, and second, the Respondent was not a
Member of the United Nations (and was not a party to the Statute) before 1 November 2000. We
have pointed out that these facts have become generally accepted, and we offered as evidence
statements of this Court, of competent United Nations authorities, and of the Parties themselves.
10. Madam President, the Respondent was not a Member of the United Nations, and was not
a party to the Statute prior to 1November2000. This leads to the conclusion that there is no
jurisdiction for two independent reasons. First, there is no jurisdiction because, not being a party to
the Statute, the Respondent had no access to the Court at the time when the Application was
submitted. The Statute establishes rights and obliga tions between parties to the Statute, and it also
establishes competencies of the Court with regard to parties to the Statute. The Respondent was
outside this scheme of rights, obligations and co mpetencies when the Application was submitted.
This Court could not have been validly seised either, since at the time of the Application, one of the
Parties to the dispute ⎯ and hence the dispute ⎯ was outside the scope of the judicial authority of
this Court.
11. Furthermore, there is no jurisdiction, becau se there is no basis for jurisdiction. In our
case, the issue of the basis of juri sdiction boils down to one question: that of the link between the
Respondent and the Genocide Convention. Our answer to this question is a straightforward one.
12. The FRY did try to continue the personality of the former Yugoslavia, and made it clear
that this would mean continuity in every respect, including United Nations membership, continued
membership in all international organizations, and continued participation in treaties. But
membership in the United Nations, in other international organizations and in treaties is not and
cannot be a simple consequence of an allegation of continuity. Otherwise, more States could claim
continuity after a dissolution, and it would yield ch aos if such claims would result automatically in
membership.
13. In order to demonstrate the difference between accepted and rejected claims to
continuity, one cannot choose a better and closer example than a comparison between the treatment
of two assertions: one of the FRY, the other of Serbia. In 2006, after the dissolution of Serbia and
Montenegro, Serbia claimed continuity ⎯ just like the FRY did in1992. Both claims were - 35 -
asserting and stressing continuity, and both were considered by the United Nations and the
international organizations as claims to continui ty. But the claim of Serbia in2006 was not
opposed by Montenegro or by anybody else. It was signed by the President of the Republic of
Serbia on 3June2006, and was confirmed by a le tter of the Foreign Minister of Serbia of
16 June 2006 45. Furthermore, the Secretary-General reacted to these letters on 20June2006,
stressing that it is reacting “as depositary of mu ltilateral treaties”, and requested more specific
language. The Secretary-General asked the Serbia n Minister for Foreign Affairs to sign “at the
earliest possible opportunity” a letter which would confirm that:
“[a]ll treaty actions undertaken by Serbia and Montenegro will continue in force with
respect to the Republic of Serbia with effect from 3June2006 and that all
declarations, reservations and notifications made by Serbia and Montenegro will be
maintained by the Republic of Serbia un til the Secretary-General, as depositary, is
duly notified otherwise”.
After this, on 30June2006, the Minister for Fo reign Affairs of Serbia sent a letter to the
46
Secretary-General containing the exact formulation suggested by the Secretary-General .
The2006claim to continuity was accepted. Serb ia did not have to s ubmit any notification of
succession or accession to any specific treaty; it simp ly continued the treaty status of Serbia and
Montenegro. This was made evident in the United Nations Treaty Collection Database, where it is
stated that “[a]ll relevant entries in ... the publication Multilateral Treaties Deposited with the
Secretary-General which read ‘Serbia and Montenegro’ will be modified to read ‘Republic of
47
Serbia’” .
14. In contrast to this, the claim to continuity contained in the 1992 declaration and Note was
not signed by competent authorities. It was not addressed to the Secretary-General as depositary.
It was not the subject of communication between the depos itary and competent organs of the FRY.
It contained a policy statement on continuity, which was not even specific enough as a declaration
of continuity–– what it purported to be–– let alone as a notification of succession–– what it
45
These letters were cited in the letter of the Court of 19July2006, sent to both Croatia and Serbia and
Montenegro.
46United Nations Treaty Collection Database, Multilateral Treaties Deposited with the Secretary-General, Status
as at 15 November 2007 , Historical Information , Available from: <http://unt reaty.un.org/ENGLISH/bible/
englishinternetbible/historicalinfo.asp.
47Information Note regarding Serbia and Montenegro, United Nations Treaty Collection Database, 21 June 2006. - 36 -
declined to be. Furthermore, it was opposed by all successor States, and by practically the whole
international community. The 1992 claim to continuity was rejected.
15. Madam President, claims to continuity have to be accepted in order to be effective. It is
common ground today that the 1992assertion of continui ty was rejected. This endeavour failed.
Since no effect can be derived from the 1992 declaration and Note, if one takes them for what they
are –– assertions of continuity ––, the Applicant tries to take them for what they are not. But this is
simply not possible.
16. This is why ⎯ as it was mentioned earlier today ⎯ the reliance of the Applicant on the
1992 documents is indistinct and without elaboratio n. The remark in a footnote of the Memorial
that the 1992 Note “can be treated as a notification of succession to the Genocide Convention”, just
as the remark in the Written Observations that the declaration “confirmed” that the FRY was bound
by the Convention “since its emergence as one of the five equal successor States...”, is without
any foothold. Both lines of argument have been completely contradicted by the actual unfolding of
events, and by the actual treatment of the treaty status of the Respondent. Let me also add that both
lines of argument were completely contradicted by the Applicant itself.
17. Madam President, I would like now to de monstrate that Croatia had, indeed, addressed
and had unequivocally rejected the suggestion that the 1992declaration and Note could be
interpreted in a way to bring about either treat y membership or member ship in international
organizations. Croatia did not say that these docum ents could be reinterpreted in order to have
effect. Croatia said emphatically that these documents have no effect whatsoever. Let me refer to
the letter of 16February1994 48, from the Permanent Representative of Croatia to the United
Nations addressed to the Secretary-General. ProfessorZimmermann already referred to this
letter and we have included this letter in your judges’ folder at tab3. The letter starts by
stressing that it is addressed to the Secretary-General “as the depositary of international
conventions”, and it elaborates a position of principle regarding the 1992declaration and Note.
In this letter, the proposition that the 1992declaration and Note could possibly bring about treaty
obligations was explicitly addressed, and it was empha tically rejected. On page1, in the third
4Letter dated 16 Feb. 1994 from the Permanent Representativ e of Croatia to the United Nations addressed to the
Secretary-General, United Nations doc. S/1994/198 (19 Feb. 1994). - 37 -
paragraph, Croatia cites the sentences from both the 1992declaration and the 1992Note, which
emphasize that on the basis of continuity, the FRY sh all continue to fulfil rights and obligations of
the former Yugoslavia “including its membersh ip in all international organizations, and
participation in international treaties”.
18. In the sentence of the letter which imme diately follows this citation–– and you can
follow it on page1, in paragraph4–– Croatia has categorically rejected this proposition. In the
words of the Croatian representative:
“The Republic of Croatia strongly obj ects to the pretension of the Federal
Republic of Yugoslavia (Serbia and Montenegro ) to continue the State, international,
legal and political personality of the former Socialist Federal Republic of Yugoslavia.”
19. On page3, in the penultimate paragraph of the letter, Croatia even explains what
could — instead of assertions of continuity –– bring about treaty status, and makes it clear that only
a formal treaty action could be accepted. Let me cite the letter again:
“[I]f the Federal Republic of Yugoslavia (Serbia and Montenegro) expressed its
intention to be considered, in respect of its territory, a party, by virtue of succession to
the Socialist Federal Republic of Yugoslavia . . ., the Republic of Croatia would fully
respect that notification of succession.” 49
20. Madam President, the position taken by Croatia ⎯ and eventually by the whole
international community— prevailed, and the Respondent took appropriate treaty actions with
regard to specific treaties. These treaty acti ons were duly noted and recognized. It is simply
impossible to return now to the attempt which conc lusively failed. It is just not possible to
somehow rekindle the endeavour to establish “membership in all international organizations and
participation in international treaties” by reliance on the 1992 declaration and Note ⎯ and to make
them effective with regard to one single treaty chosen by the Applicant. Events took another
course. The Respondent became a member of international organizations ⎯ including the United
Nations— by way of applications which were ac cepted; and the Respondent became a party to
specific treaties by way of notifications of succession or accession which were duly accepted. This
is how the Respondent became bound by the Genocide Convention in 2001, with a valid
reservation to ArticleIX. ArticleIX of th e Genocide Convention cannot represent a basis for
jurisdiction in this case.
49
Ibid. - 38 -
21. Madam President, distinguished Members of the Court, our principal contention is that
this honoured Court has no jurisdiction because the Respondent did not have access to the Court at
the relevant moment, and because there is no basis for jurisdiction. We have also demonstrated
that even if the Court had jurisdiction quid non, this could not possibly extend to events prior to the
date when the Respondent came into existence ⎯ and this could not extend to the claims dealt with
in our third preliminary objection.
This concludes our presentations for today. Thank you very much for your patience and for
your kind attention.
The PRESIDENT: Thank you, Professor Varady. This marks the end of today’s sitting and
brings to a conclusion the first round of oral argument by Serbia. The Court will meet again at
4.30 p.m. tomorrow to hear the first round of oral argument of Croatia.
The Court now rises.
The Court rose at 4.20 p.m.
___________
Public sitting held on Monday 26 May 2008, at 3 p.m., at the Peace Palace, President Higgins presiding, in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)