INTERNATIONAL COURT OF JUSTICE COUR INTERNATIONALE DE JUSTICE
Uncorrected Non corrigé
CR 2004/22 (translation) CR 2004/22 (traduction)
Thursday 22 April 2004 at 4.40 p.m. Jeudi 22 avril 2004 à 16 h 40
Le PRESIDENT : Je donne maintenant la parole à M. Luigi Daniele, conseil pour l’Italie.
Mr. DANIELE:
Scheme of the Italian Government’s arguments
1. Thank you, Mr. President. Mr. President, Members of the Court, the Italian Government’s reply will be divided
into two parts: in the first, we intend to prove that, despite what the Agent of Serbia and Montenegro said yesterday, the
Applicant has confirmed what the Italian Government already said in its oral statement the day before yesterday.
2. Serbia and Montenegro in effect continues to co nsider that (I) the Court is without jurisdiction, whether ratione
personarum or ratione materiae, to judge this case and (II)the Genocide Convention is not bindi ng on the Republic o f
Serbia and Montenegro and thus cannot be a source of right s or legal interests which could have accrued to Serbia an d
Montenegro and which Italy could have infringed.
3. In the second part of our statement we will briefly amplify the points made in our preliminary objections
concerning Article IX of the Genocide Convention as a possible base for the Court’s jurisdiction in this case. This part o
the statement will be made by ProfessorLu igi Sico, to whom I shall in due course ask you, Mr.President, to give the
floor. Mr.Braguglia, in his capacity as Agent, will then present the final submissions on behalf of the Italian
Government.
4. I would add that my Government shares a number of the arguments which th e other Respondents have set ou t
this morning and afternoon. In larg e part, these arguments match those set out by the Italian Government in its
preliminary objections; for lack of tim e, we will not take them up again today, but this must not be construed as an
implicit renunciation on our part.
5. Before beginning, Mr. President, I must express the unease felt by the Italian Government in response to Serbia
and Montenegro’s conduct in this stage of the proceedings. Co nfining themselves to only one and a half pages of written
observations then proceeding for three hours to dispute our preliminary objections and lay out a whole series of largely
new legal arguments has put the Respondents in a very difficu lt position. Can such conduct be considered acceptable in
contentious proceedings before the Court? The Italian Govern ment does not wish to draw any conclusions from this, bu t
feels it could not refrain from briefly mentioning it.
Lack of an object of the dispute
6. I do not think I am mistaken in saying that a number of us in this venerable court room were gladdened yesterdayto hear the Agent of the Serbian Government claim the ri ght “to state ourselves what we actually said and meant to
say” (para. 32).
7. Mr. Varady was speaking of the written observations of 18December2002, filed by the Serbian Government,
pursuant to Article79, paragraph3, of the Rules of Court, in response to the prelimin ary objections raised by my
Government and by all the other respondent States.
8. These written observations could lend themselves to a number of different interpretations, no doubt because o f
their unusual brevity. Mr.Varady counted up to five of them, including the one which my Government put forwar d
during its oral statement the day before yesterday (para. 38).
9. According to Mr. Varady, all these interpretations were wrong. The real purpose of the Serbian Governmen t
“was to investigate the legal status of the FRY in the light of a dramatic event for our country, the admission to the UN as
a new Member” (para. 33).
10. It may well be asked why the Serbian Governme nt now feels the need for the Court re-examine this question.
In fact, as we noted during our first appearance and as Mr. Vara dy admits in paragraph 56 of his statement, the Court has
already ruled on the position of Serbia and Montenegro vis-à-vis the United Nations, the Statute of the Court and the
Genocide Convention during the period preceding its admission to the United Nations. In the Judgment on the request fo r
revision in the Bosnia and Herzegovina v. Yugoslavia case, the Court declared that reques t inadmissible and, as a result,
confirmed both the sui generis position of the FRY vis-à-vis the United Nations and the Court’s jurisdiction unde r
Article IX of the Convention referred to above.
11. However, according to Mr. Varady the position taken by the Court le aves several points open. In particular,
according to Mr. Varady “the question remains what w as the nature, and what were the consequences of this sui generis
position between 1992 and 2000 ” (para. 58) and, among other things , “whether this sui generis position vis-à-vis the
Unitednations could have provided the link be tween the new State and international treaties ⎯ the Statute and the
Genocide Convention in particular” (para. 63).
12. Mr. President, Members of the Court, you hardly need me to tell you, the attitude of the Serbian Government in
this case is a constant source of surprise. Instead of citing a precedent favourable to the jurisd iction of the Court unde r
Article IX of the Convention, the Applicant State asks the Court to reconsider the solution that it had already reached.
13. Indeed, this is what my Government also is asking the Court to do. The day before yesterday Mr.Leanza
maintained (paras. 35 et seq.) that the Court should not consider itself bou nd by the 2003 Judgment on the application fo r
revision. It is, I think, perfectly normal for a State that is contesting the jurisdiction of the Court, as Italy is, to seek to
convince the Court that it should not let itself be influenced by a precedent that would not support that State’s arguments.
On the contrary, it is to say the least su rprising the it should be the Applicant St ate that is challenging such a precedent,
when it should be in its best interests for the Court to confirm its decision. 14. So how is this contradiction to be explained? How is one to explain the fact that the Applicant State brings to
the debate factors potentially supportive of the Respondent State’s arguments regarding the Court’s lack of jurisdiction?
15. The answer is simple: Serbia and Montenegro is actually seeking to obtain a negative decision from the Cour t
on its jurisdiction under Article IX of the Convention on Genocide, a decision which would recognize that Serbia an d
Montenegro was not bound by the Convention before its notif ication of accession in March 2001 and which that State
might well use in other cases against it currently pending before the Court, whose outcome might be seriously affected by
such a decision of the Court in this case.
16. Moreover, the Agent of the Serbian Government made no secret of this. After mentioning the fact that Serbia
and Montenegro is the Respondent State in a number of cases before the Court which raise the same problem of the status
of that State between 1992 and 2000 (para. 34), Mr. Vara dy declared, referring to all these cases (by the somewha t
unusual term of “lawsuits”): “now, we would simply like to know where we st and. Only a judgment on jurisdiction
could put us on a clear track” (para. 39). In paragraph 64 Mr. Varady then added that
“[w]e need to know whether the turbulent period behi nd us yielded proper procedural prerequisites for
continuing these disputes. A judgment on jurisdictio n, based on the elucidation of the position of the FRY
between 1992 and 2000, could create an anchor point of orientation.”
17. It follows that the decision of the Court that the Serbian Government is seeking would not be in the nature of a
true judgment settling an actual dispute between two States, bu t would be seen instead as a kind of legal opinion, simila r
in nature to the advisory opinions that your Court is obviously empowered to give under Article 96 of the Charter of the
United Nations, but which can in no case be requested by a State.
18. In conclusion, we feel that the considerations set forth yesterday morning by the Agent of the Serbian
Government confirm that Serbia and Montenegro, without op enly admitting it, no longer h as any interest in the Cour t
declaring itself competent in this case under ArticleIX of th e Convention on Genocide. That is the explanation for the
quite astonishing failure of the Serbia n Government even to ask the Court, either in its Written Observations o f
18 December 2002 or yesterday in its oral statement, to declare that it has jurisdiction, but only to rule on its jurisdiction.
19. Mr. President, Members of the Court, in the opinion of the Italian Governme nt the comments by the Serbian
Government at yesterday’s hearing confirm yet again that this case no longer has any object and that the Court would find
itself determining abstract issues far removed from reality.
20. Mr. President, I have now finished my statement and would ask you give the floor to Mr. Sico.
The PRESIDENT : Merci, Monsieur Daniele. Je donne maintenant la parole à M. Luigi Sico.
MR. SICO:
Lack of jurisdiction ratione personarum and ratione temporis in relation to Article IX
of the Genocide Convention 21. Mr. President, Members of the Court, it is a great honour for me to take the fl oor on behalf of Italy before yo u
today, in order to enlarge upon some further subsidiary matters on the lack of jurisdiction ratione personarum and ratione
temporis in relation to Article IX of the Genocide Convention.
22. In its Written Observations, Serbia and Montenegro declared ⎯ it must be reiterated yet again ⎯ that it “did
not continue the personality and the treaty membership of the former Yugoslavia, and thus specifically, it was [not] bound
by the Genocide Convention until it acceded to that Conventi on (with a reservation to Artic le IX) in March 2001”. By
these words, which you have heard repeated a thousand time s, Serbia and Montenegro expressly admitted beyond all
possible doubt that the Court has no jurisd iction to entertain this case, for the si mple reason that the sole legal basis on
which such jurisdiction might be founde d was not in force between the Applicant and the Res pondent on the date the
Application was filed.
23. Further, as I have just said, the accession to the Convention is accompanied by a reservation on the jurisdiction
of the Court: consequently, even supposing the Serbian G overnment were thinking of claiming that its accession coul d
possibly have retroactive effect ⎯ which it has never claimed ⎯ such retroactive effect could not include the
reservation. Consequently, assuming that Serbia and Montenegro’s position ⎯ or should I say posture ⎯ might be
reformulated so as to enable it to rely on the possibility of its retroactive accessi on, without at the same time claiming the
same effect for the reservation on jurisdicti on, then the Italian Government declares that it is Italy that intends to argue
this, on the basis of the principle of reciprocity. Let us be very clear on this point: Italy has no intention of accepting t hat
the Court has jurisdiction under Article IX of the Genocide Convention in respect of Serbia and Montenegro.
Lack of jurisdiction ratione materiae in relation to Article IX of the Genocide Convention
24. Mr. President, Members of the Court, Italy is thus responding to the objections on jurisdiction ratione materiae
in relation to Article IX of the Genocide Convention simply in the a lternative. It should be no ted in this connection tha t
ProfessorBrownlie, in order to demonstrate that military action by NATO member-States might, objectively seen, be
included in the acts prohibited by the Geno cide Convention, reminded us in his st atement that the Court’s ruling in the
Judgment of 12November 1996 on O il Platforms (Islamic Republic of Iran v. United States of America, Preliminary
Objections, para. 16) was that it is for the Court to “ascertain whet her the violations of the Treaty . . . pleaded by Iran do
or do not fall within the provisions of th e Treaty and whether, as a consequence, the dispute is one which the Court has
jurisdiction ratione materiae to entertain”.
25. It is common knowledge that the most recent case-law has become very strict when the Court is called upon to
decide on preliminary objections regarding the scope of a tr eaty clause conferring jurisdiction. Indeed, the Court requires
careful proof that the facts on which th e application is based are capable of cl assification as conduct governed by the
treaty whose interpretation or application is entrusted to it.
26. In this connection, Professor Brownlie contended that the use of armed force may fall within one or other of thedefinitions of ge nocide. It is well established that the nature of armed conflicts has change d fundamentally since the
second half of the twentieth century, so that they can no longer be defined as a set of military actions essentially aimed a t
the debellatio of a State, that practically all conflicts have become asymmetrical and that even the ideas of target and
military objective have undergone profound changes, fortunately for the better.
27. However, these changes and, above all the fa ct that very often the armed forces of a State do not face the arme d
forces of another State hardly make it possible to infer that any use of ar med force can be classed as genocide.
Paragraph 38 of the Court’s Advisory Opinion of 8 July1996 on the Legality of the Threat or Use of Nuclear Weapons
once again comes to mind here. At the same time, it ca nnot be excluded that genocide may sometimes be committe d
through actions looking like military actions.
28. Clearly, military action constituting an act of genocide must be distinguished from all other military action,
essentially by reference to the existence of genocidal intent. However, it is difficult to accept that presumption or even
the particular circumstances of each case can be adequate proof of this psychological el ement, still less that such
presumption may be based on the effects of the action undertaken.
29. NATO’s intention was to prompt the FRY leadership to end a comprehensive and co-ordinated series of actions
which, in the view of the international community as a whole, seriously violated the physical and moral integrity of the
ethnic Albanian population in Kosovo ⎯ and was thus itself a true case of genocid e. Such an intention can definitively
not be equated with the intention to ph ysically or morally destroy a group in whole or in part, as contemplated by
Article II of the Convention.
30. Contrary to what counsel for Serbia and Montenegro told us yesterday, it was scarcely the intention of the
Governments of the NATO Member States to intimidate or compel the leaders of a third State such as the FRY. Indeed,
as we have already observed on several occasions (see the Italian Memorial of 3 July 2000, Preliminary Objection No. III,
paragraph D, pp.46 et seq.), the statements by NATO Heads of State and its SecretaryGeneral read out yesterday
morning must above all be placed back in their proper contex t and afterwards, if this has been done in good faith, it will
clearly be seen that their intention was solely to avoid a humanitarian catastrophe in Kosovo.
31. But even accepting that the purpose of th e NATO military action was to intim idate the FRY leaders, which is
not the case, it would still never be possible to accept the idea put forward by Prof essor Brownlie that genocidal acts can
be directed against a group representing an entire national community, in the knowledge that the very notion of genocide
was developed to prohibit any territorial State from annihilating any minority “nati onal, ethnic, racial or religious group”
on its territory (see Italian Memorial of 3 July 2000, Preliminary Objection No. III, paragraph C).
32. In this respect, it is not possible either to follow ProfessorBrownlie’s ar gument, with its conclusion that,
because the notion of group is not well defined, this word can refer to the population of a whole State, thus guaranteeing it
special protection, the basis of which w ould have to be establishe d, against one or more other States. Even from thisperspective, it must therefore be conc luded that the Court has no jurisdiction ratione materiae under ArticleIX of the
Genocide Convention.
Inadmissibility of the submissions of Serbia and Montenegro as a whole in relation to the existence of a dispute to
which not all the NATO Member States participating in the
military action which is the object of the proceedings are parties
Mr. President, Members of the Court, neither the Agent nor counsel for Serb ia and Montenegro exhaustively
addressed the objection whereby Italy co mplained that a possible decision d eclaring the wrongfulness of the military
action by NATO would inevitably affect the legal position of a number of other States which are not parties to the presen t
proceedings and would irreparably undermine their rights (see Italian Memorial of 3July 2000, Preliminary Objection
No. IV, para. B).
34. In reality, the jurisprudence cited by Mr. Djerić, in paragraphs1 et seq. of his statement, concerns situations
which have little connection with the subject-ma tter of these proceeding s. Whereas in the Monetary Gold, Nauru an d
East Timor cases, the Court sought to avoid ruling on the responsibility of a State which was not a party to the
proceedings, since such respon sibility constituted a prerequisite of the de termination of the situation forming the
subject-matter of the Application, in th e present case the Court is called upon to rule on the wrongfulness of certain
actions that the applicant State itself a ssociates with a sort of collective respon sibility of the NATO member States, o f
which only eight are parties to the present cases. That conc lusion is confirmed by Serbia and Montenegro’s attitude in
addressing the objection raised by some of the respondent States concerning their failure to specify the actions i t
attributed to each of them.
35. By persistently contending that it did not need to be more specific in that respect and by seeking to place the
burden of proof that they did not take part in certain sp ecific actions back on the Respondents (para.33), Serbia an d
Montenegro has shown that it holds all NATO Member Stat es, without distinction, res ponsible for the “Allied Force”
action, and that it is thus requesting th e Court to deliver a judgment on the mer its, which would inevitably prejudge the
legality of the conduct of States not parti es to these proceedings. On this basis, Italy requests the Court to find that the
Application of Serbia and Montenegro is inadmissible.
36. Mr. President, Italy thus concludes its reply. May I therefore ask you to give the floor to the Agent of the
Italian Government for the final submissions. Members of the Court, thank you for your attention.
Le PRESIDENT : Merci, Monsieur Sico. Je donne maintenant la parole à M. Ivo Braguglia, agent de l’Italie.
Mr. BRAGUGLIA: Thank you, Mr.President. My task is now simply to read out th e submissions of the Italian
Government.
Submissions 37. For the reasons set out in the Preliminary Objections and in its oral statements, the Italian Government submits
as follows:
May it please the Court to adjudge and declare,
Principally, that:
I. No decision is called for on the Application filed in the Registry of the Court on 29April1999 by Serbia an d
Montenegro against the Italian Republic for “violation of the obligation not to use force”, as supplemented by the
Memorial filed on 5 January 2000, inasmuch as there is no longer any dispute between Serbia and Montenegro and
the Italian Republic or as the subject-matter of the dispute has disappeared.
In the alternative, that:
II. The Court lacks jurisdiction ratione personarum to decide the present case, since Serbia and Montenegro was not a
party to the Statute when the Application was filed and also does not consider itself a party to a “treaty in force” such
as would confer jurisdiction on the Court, in accordance with Article 35, paragraph 2, of the Statute;
III. The Court lacks jurisdiction ratione materiae to decide the present case, sinc e Serbia and Montenegro does no t
regard itself as bound by Article IX of the Genocide Convention, to which it made a reservation upon giving notice
of accession in March 2001 and since, in any event, the dispute arising from the terms of the Application instituting
proceedings, as supplemented by the Memorial, is not a dispute relating to “the in terpretation, application o r
fulfilment” of the Genocide Convention, as provided in Article IX;
IV. Serbia and Montenegro’s Application, as supplemented by the Memorial, is inadmissible in its entirety, inasmuch as
Serbia and Montenegro seeks thereby to obtain from the Court a decision rega rding the legality of action undertaken
by subjects of international law not present in the proceedings or not all so present;
V. Serbia and Montenegro’s Application is inadmissible with respect to the el eventh submission, mentioned for the firs t
time in the Memorial, inasmuch as Serbia and Montenegro seeks thereby to introduce a dispute altogether differen t
from the original dispute deriving from the Application.
Mr. President, Members of the Court, thank you for your attention.
Le PRESIDENT : Je vous remercie, Monsieur Braguglia. La Cour prend acte des conclusions finales que vous
venez de lire au nom de l’Italie. Cet exposé met fin au second tour de plaidoiries de l’Italie et à la séance de cet après-
midi. La Cour reprendra ses audiences demain à 15 heures pou r entendre le second tour de plaidoiries de la Serbie e t
Monténégro. Merci.
La séance est levée.
La séance est levée à 17 h 05.
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Translation