Non-Corrigé Traduction
Uncorrected Translation
YUGONFR
CR 2004112(traduction)
CR 2004112(translation)
Mardi 20 avril 2à011heures
Tuesday 20April2004 at 11a.m. Le PRESIDENT :Je donne maintenant la paroleà M. Ronny Abraham, agentde la France.
6
MT. ABRAHAM:
Introduction
Mr. President, Members ofthe Court,
1. It is a great honour for me, once again representing France, to appear before you today,
although this feeling is tempcred sornewhat by the sense of inconsistency aroused by these
proceedings and caused bythe Applicant's inconstant behaviour.
2. In al1 honesty, this sense is not a new one. It was clear as early as the filing of the
Application on 29 April 1999 that the Federal Republic of Yugoslavia was incapable of
establishing a substantial legal basison which the Court could exercisejurisdiction overthe claims
made against the States having participated in NATO's military operations during what is
commonly called the "Kosovo crisis". You yourselves noted this obvious deficiency, having
rejected the request for the indicationof provisional measures presentedby the Federal Republicof
Yugoslavia on the ground that the Court "lack[ed] prima facie jurisdiction to entertain
Yugoslavia's ~~~lication"'.
3. In eight of the ten cases initially placed onthe List you however chose to give the
Applicant a "second chance", as it were, by affording it the opportunity to remedy the lack of
jurisdiction found prima facie. However, the conclusion cannot be escaped that, far from
manifesting any efforttooffer a better supported legal argument, the Mernorial filed by the Federal
Republic of Yugoslavia on 5January 2000 is characterized through and through by the same
cavalier approach. No doubt, this must be seen asthe token ofthe judicial dead end intowhich the
Applicant has ventured. But, rather than continuing down this path inevitably leadingto failure,
the Federal Governmentof Yugoslaviacould then have made the choice- the simple, reasonable
choice - to discontinue the proceedings.
4. That was not the case, at least notexplicitly. And yet, regardless of what one might think
of the merit of the arguments submitted by the Applicant on 18December 2002, the conclusion
'order o2 June1999,I.C.Reports 1999p.373, para.32.7 called for by those arguments is unequivocal: as Professor Alain Pellet will demonstrate in a
moment, Serbia and Montenegro itself now recognize.; that the Court cannot exercise its
jurisdiction in the presentproc'eedingsand this alone justifies the termination of the proceedings,
becausethe Applicant itself is riolonger askingthe Court to adjudicate on the merits of its claims.
5. In France's view, this straightfonvard observatiori suffices as a matter of law. Thus it is
only in the alternative thatI shall point out a bit later that none of the acts of which Serbia and
Montenegro have accused France or the other Respondents can fall within the provisions of the
Genocide Convention. 1shall silsoexplain, but this in the further alternative, the reasons why those
acts are not attributable to France.
6. But before 1do so, Professor Pellet will, with your permission, Mr. President, set out the
reasons why the present proceedings are now devoid of object and why the Court should
accordingly strikethe case frorn itsList.
1now kindly request, Mi-.President, that you givethe floor to Professor Pellet.
Le PRESIDENT : Merci, Monsieur Abraham. Je donne maintenant la parole à
M. leprofesseur Alain Pellet.
Mr. PELLET : Merci beaucoup, Monsieurle président.
7. Mr. President, Members of the Court, as Mr. Abraham has just said, it is my task to
analysethe consequences of the odd positionadopted by the Republic of Serbia and Montenegro in
response to the preliminary objectionsraised by France.
8. Mr. President, as a result we find ourselves in a situation which is unusual, to Saythe least.
Here is a State which brings proceedings before the Court in reliance on shaky bases of
jurisdiction - so shaky that, in its Order of 2 June 1999,after finding that it "lack[ed] prima facie
jurisdiction to entertain [the] ~~~lication"~,the Court dcnied the provisional measures soughtby
Yugoslavia; to my knowledge, this has never before occurred in the history of the Court except,
8 perhaps, and then also in very singular circumstances, furtherto New Zealand's 1995request inthe
'I.c.Reports 1999p. 373para.32. case conccniing Nuclear ~ests~.Evidently convinced of having slipped up,that same State offers
no argument to counter the preliminaryobjections raised by France and theother Respondents.
9. Quite to the contrary: in its Written Observations of 18December 2002, the Federal
Republic of Yugoslavia acknowledges that there is no basis for the Court's jurisdiction.
Accordingly. "[tlhe Federal Republic of Yugoslavia requeststhe Court to decide on itsjurisdiction
considcriiig the pleadings formulated in these Written Observations". This looks very much like a
discoiitiriuance that will not speak its name. However, in a letter from its Agent dated
28 Fcbruary 2003, Serbia and Montenegro, reiterating its position, stated that, notwithstanding its
cliange in stance, it did not intend fonnally to discontinue the proceedings. The Court therefore
firidsitsclin tlic strange- to Saythe least-position of havingto determine the consequencesof
the Applicant's express recognition thatthere is no foundation for the Court'sjurisdiction, without
howcvcr a formal discontinuance resultingfrom this.
10. The short answer, the "plussimple" as would be said in the other language, would
assurcdly be to find that, despite its denials, the Applicant has indeed abandoned its Application.
And that. Mr.President, is indeedthe course of action which seemsto me the most logical,and the
onc most closely according with the exclusivelyjudicial function ofthe Court.
11.It is forthe Court to determinethe legal significance ofthe situations describedby parties
or of the procedural steps they have taken. It has made such determinations in respect, for
example, of the existence (or non-existence) of a dispute4or the meaning to be ascribed to the
parties' submissions5or to a State's acceptanceof the court's jurisdiction6. This must also be the
case when it cornesto determiningwhether or not there has beena discontinuance, without it being
9 appropriate to stop at the formal characterization chosen by the Applicant. In this respect, the
'order of 22 September 1995,Requestfor an Lamination of the SituationinAccordance with Paragraph 63 of
tire CoitStJudgnrentof 20 December 1974 in the Nuclear Tests (New Zealv.dFrance) Case. I.C.J. Reports 1995,
pp. 300-307. para. 67.
ce Advisory Opinion of 30 March 1950, Interprefation of Peace Treaties, I.C.J. Reports 1950, p. 74;
Judgiiiciiisof 20 December 1974,Nuclear Tests. I.C.J.Reports 1974, p. 271, para. 55, and p. 479, para. 59, or Advisory
Opinion of 76 April 1988, Applicabili~y of the Oblrgation to Arbitrale under Section 21he United Nations
Ilecrdqiturtcsgreement of26 June 1947,I.C.J.Reports 1988. p. 27. para. 35.
'sec for example the Judgmentsof 20 December 1974,Nuclear Tests,I.C.J.Reports 1974, p. 263, para. 30, and
p.467. para. 1,or Judgrnent of 4 Decernber1998, FislreriesJurisdzction,I.C.J. Reports 1998, pp. 448-449, paras. 30
and 31.
'~ee, for example, the Judgment of 25 March 1948, Corfu Channel,Preliminaty Objections, I.C.J. Reports
1947-1948. p. 28.Court's observationsin the Nuclear Tests cases are fully transposable to the present proceedings:
"It would ofcourse have been open to Australia, if it had ccmsideredthat the case had ineffectbeen
concluded,to discontinue the proceedings in accordance with the Rules of Court. If it has notdone
so, this does not prevent the (Courtfrom making its owii independent finding on the subject."'
Similarly,in the present case, the fact that Serbia andMontenegro says that it has not discontinued
the proceedings in no way prevents the Court fromarriving at the opposite conclusion.
12.Moreover, the Court pointed out in the Monetary Gold case that it was for the Court to
"adjudicate upon the validity, withdrawal or cancellation of an application which has been
submitted to it"'. In that case the Court considered the question whether "[tlhe raising of [a]
Preliminary Question by Italy cannot bc regarded as equivalent to a discontin~ance"~and it seems
to me that the Court must ask iitsclfthe same question in the present proceedings - and arrive at a
different answer.
13.In its 1954Judgment, thc Court answeredthis question in the negative, expressly basing
its decision on the "circumstai~cesof the case", whichexplained Italy's "unusual" challenge of the
jurisdiction of the Court. "Unlusual"also most definitely describes the present situation-but the
circumstances are very different.
14.In the Monetary Goidcase, the Applicant (Italy) did not deny that it had validly accepted
the jurisdiction of the Court; the Judgment reads: "[Italy]continues to hold herself out as being
subject to the Court's juristiiction in these proceedings after the raising of the Preliminary
Objection as much as she did bcfore taking that step"lO. The "doubt" felt by Italy "as to whether
the subject-matter of the dispute was such that the Court coulddeal with it"" did not concem the
existence of ajurisdictional linkbetwecn itself and theRespondents but rather an extraneousfactor
which prevented theCourt fromadjudicating upon itsclaims: the absence of an indispensablethird
Party. That, by the way, is also the case in the present proceedings and Mr. Abraham will Saya
'~ud~mentsof 20 December 1974.1.C.J. Reports 1974,p. 270. para. 54; see also pp. 475-476, para. 57.
'~ud~mentof 15June 1954,rl!onctary Gold Removedfrom Rome in 1943 (Preliminay Question), I.C.J. Reports
1954,p. 28.
'lbid., p. 30.
'Olbidp. 29.10 few words about this a little later. But that is not the aspect of the 1954 Judgment which interests
us at present. Rather, my standpoint lies at an earlier, "pre-preliminary" (in the words of
Sir Gerald ~itzmaurice)'~stage: the question which interests us is whether you, Members of the
Court, are seised of a case on which you can adjudicate on a preliminary question. And the
response must be in the negative for two reasons, each of which issufficient to establish that you
have not been validly seised by the Republic of Serbia and Montenegro and that you cannot but
strike the case fromyour list:
- first, the Applicant acknowledges that, failing any basis foryourjurisdiction, you cannot rule
on the merits of the dispute, for lack of valid consent to your jurisdiction by al1the parties;
accordingly and
- secondly, there is no dispute betweenthe parties on the preliminary question which the Court is
considering at this stage in the proceedings; the preliminary question is thus devoid of any
object.
With your permission, Mr. President, 1shall now briefly return to these two points.
1. The Republic of Serbia and Montenegro has recognized that there is no basis forthe
jurisdiction of the Court in the present case
15.Unlike Italy in the 1954case, Serbia andMontenegro does not continue "to hold herself out
as being subject to the Court'sjurisdiction inthese proceedings". On the contras., it asserts in no
uncertain terms that on the date on which it referred the matter to the Court:
(1) "the FederalRepublic of Yugoslavia was not and could not have beena party to the Statute of
the Court by way of UNmembership"; and
(2) "it was not bound by the Genocide c~nvention"'~.
In other words, at that date, by the Applicant's own admission, it was a party neither to the Statute
of the Court nor to the 1948 Genocide Convention and it had not and could not have expressed
consent to thejurisdiction of the Court. Nor, Mr. President, does France consent thereto.
I2separate opinion appended to the Judgment of 2 December 1963, Northern Cameroons, Preliminary
Objections,I.C.J.Reports 1963, p. 103.
"~ritten Observationsof 18December2002, p. 2. 16. No consent, no jurisdiction. This is the cardinal principle on which the entire
jurisdictional machinery of the Court is based, as it has stated repeatedly, inter alia in its Order of
2 June 1999concerning Yugoslavia's Request for the Indicationof Provisional Measures. In that
Order, citing its 1995 judgment in the East Timor caseI4, the Court stated "that one of the
fundamental principles of its Statute is that it cannot decide a dispute between States without the
consentof those Statesto itsjuirisdiction"ls.
17. In its preliminary observations the Republicof Serbia and Montenegro "erases", as it
were, the statement of "Legal grounds [which are in fact uncertain and questionable] for
jurisdiction of the Court" which it had included in its Application, in accordance with the
requirements of Article 38, paragraph 2, of the Rules. As regards the Application against France,
these alleged grounds were two in number: Article IX of'the 1948 Convention on Genocide and
Article 38, paragraph 5,of the Rules of court16. Byexpressly acknowledging that the first of these
grounds does not exist, the Applicant State acknowledgesby the same token that the Court has no
jurisdiction in the present case because Article 38, paragraph 5, of the Rules is in fact an "anti-
ground": citing it is equivalerit to admitting that the State against which the Application is made
has not givenor shown its consent to the jurisdiction of the Court. If such consent is lacking, the
case cannot be entered in the ~ist", and if it is in the List it must be removed, as happened in
respect of the "Request for an examination of the situation" by New Zealand in 199518,or longer
ago in the Aerial Incidents or Antarctica casesI9. Mr. President, the same must apply inthe present
case: France has never agreed to the jurisdiction of the Court in this case, and Serbia and
Montenegro has found that it had been mistaken as to the existence of its own consent. Assuming
I4~udgrnentof 30 June 1995,l.C.J. Reports 1995,p. 101,para. 26.
"I.c.J. Reports 1999, p. 370, para. 19. See also inter alia the Judg15nJune 1954 cited above, Monetary
Gold,I.C.J. Reports 1954,p. 32 and themany cases cited in the aforesiiidJudgrnent of30 June 1995, ibid.
"cf. letter frorn the Registrar of 18 February 1994, cited by Shabtai Rosenne in The Law and Practice of the
International Court, 1920-1996,Nijhoff; The HagueiBostonlLondon, 1997,p. 1223.
Is~equestfor an fiaminati80n of the Situation in Accordant? with Paragraph 63 of the Court's Judgment of
20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, Order of 22 September 1995, I.C.J. Reports
1995,p. 302, para. 44 and p. 306, para. 66.
I9SeeI.C.J.Reports 1954, pIO1; 1C.J. Reports 1956,p11 or 141.C.J Reports 1959, p. 278.it is considering doing so, it cannot retract this formal declaration today without flouting the
principle of good faith.
18.This solution is al1the more compelling because the two Parties are in agreement that the
conditions essential for the exercise of yourjurisdiction are not met. It is doubtlessfor the Courtto
decide on itsjurisdiction under Article 36, paragraph 6, of the Statute- but only "[iln the event of
a dispute" onthis point; but there is- or there is no longer- any dispute; quite simplythere isno
longer anything to decide. .. The preliminary objections of France combined with the written
observations of Serbia and Montcnegro form a kind of "compromise in reverse" demonstrating the
Parties' agreement that there are no legal grounds on whichthe Court could have been seisedof the
case. Here we have a kind of firum prorogatum on the part of Serbia and Montenegro.
Consequently, neither is there any dispute between the Parties on the preliminary question which
the Court is supposed to examine at this stage of the proceedings, a question which is therefore
completely devoid of purpose: this will be my second point.
2. There is no dispute between the Parties on the preliminary question,
the only one raised at this stage of the proceedings
19. In the separate opinion which he appended to the Judgment concerning the 1963
Northern Cameroons case, Sir Gerald Fitzmaurice distinguished "(a) questions which, while
remaining preliminary (in the sense of preliminary to the merits) are substantive in character, and
(b) questions which are of a wholly antecedent or, as it were, 'pre-preliminary'characterV2O .have
already said in passing a few momentsago that the question raised bythe present case undoubtedly
falls within the second category. As the learnedjudge explained: "a plea that the Application did
not disclose the existence, properly speaking, of any legal dispute between the parties, must
precede competence, for if there is no dispute, there is nothing in relation to which the Court can
consider whether it is cornpetentor not"". The existence of a dispute isthe condition sinequa non
for the exercise by the Court of itsjurisdiction, and if there is no dispute it is pointless to speculate
aboutjurisdiction or about the admissibilityof the Application. 20. This analysis falls iri with the jurisprudence of the Court in al1respects, first of al1the
1963Judgment itself, in which the Court noted: "[Wlhether or not at the moment the Application
was filed there was jurisdiction in the Court to adjudicate upon the dispute submitted to it,
circumstances that have since arisen render any adjudication devoid of purpose", in the absence of
a dispute open to judicial ~ettlement*~. Similarly, in the Nuclear Tests cases the Court, after
stressing that "the existence of a dispute is the primary condition for the Court to exercise its
judicial function", hammered home the point that "the dispute brought before it must therefore
continue to exist at the time when the Court makes ifs deci~ion"~~o ;thenvise, as it observed on
another occasion, a"jin de non-recevoir must fo11ow"~~.
21. Without doubt, as IIsaid a few moments ago, "the existence [or non-existence] of a
dispute has to be established objectively by the Court" [Translationby the Registry] itselfs5: "It is
true" Statesthe 1998Judgmenl;concerning FisheriesJurisdiction, "that it is for the Court to satisQ
itself, whether at the instance of a party or proprio motu, that a dispute has not become devoid of
purpose since the filing of the Application and that there remains reason to adjudicate that dispute
(see Northern Cameroons, Pr(-liminaryObjections,Judgrnent, 1C.J. Reports 1963, p. 38; Nuclear
Tests (Australiav. France), Judgment, I.C.J. Reports 1974, p. 271, para. 5~)"~~.However, if it
finds that objectivelythere is riodispute, it has no optionbut to decline to exercise itsjurisdiction.
22. Doubtless there is rio necessity to dwell on defining what amounts to a dispute in law.
The famous definition by the PCIJ in the Mavrommatis case and recognised many times since is
not really opento question, at least forthe purposes of the present case: it reads "[a]dispute is a
disagreement on a point of llawor fact, a conflict of legal views or of interests between two
"I.C.J. Reports 1973, p. 270-271, para. 55., and p. 476, para 58; the italics are ours; on the date on whichthe
dispute must exist,see also the Advisory Opinion of 26 April 1988,Applicabilily ofthe Obligation to Arbitrate under
Section 21 ofthe United Nations Headquarters Agreement of 26 June 1937,I.C.J. Reports 1988, p. 30, para. 44 and the
Judgments of 20 December 1988, Border and Transborder Armed Actions. I.C.J. Reports 1988, p. 95, para. 66, of
27 February 1998,Questions oflnterpretation and Application of the 1971Montreal Convention arisingfrom the Aerial
Incident at Lockerbi,1.C.J. Reports 1988, p. 26, para. 46, a1:i1,para. 45, o11 June 1998. Land and Maritime
Boundaty between Cameroon and'Nigeria. Prelinlinary Objections, I.C.J. Reports 1988, p. 318, para. 99, or of
1.1February2002,Arrest Warrant of II April2000, para. 32.
24~udgmeno tf 21December 1962,South WestAfrica, Preliminaty Objections, 1.C.J. Reports 1962, p. 328.
"lbid.; see note 3,supra.
26~udgmeno tf4 December 1998,I.C.J. Reports 1998, p. 468, para. 88.14 persons'727.As the present Court has said: "It must be shown that the claim of one party is
positivelyopposed by the other."*'
23. Obviously there is nothing of the sort in the present case: France considers (and has
always considered) that the Court is notcompetent to rule on the Application submittedto it by the
Federal Republic of Yugoslavia in 1999;the Republic of Serbia and Montenegro has come to the
same conclusion. There is no longer any disagreement between them on this point of law - the
only pointat issue at this stage ofthe proceedings - and the preliminary dispute of which the Court
is seised no longer exists at the time wlien the Court is to make itsde~ision*~e ,ven though it isthe
sole dispute on which, in accordance with Article 60 of the Rules, we should have pleaded in less
unusual circumstances. Since the dispute has disappeared, no issue "still divides the parties"; the
preliminary objections raised by France "no longer ha[ve] any purpose"; and the finding of the
Court must reflect this30.
24. Mr. President, this submission might be metby three objections:
(1) although there is no disagreement between the Parties as to the absence of any basis for the
jurisdiction of the Court, the reasons why the Parties agree on this point do not necessarily
coincide;
(2) it is with regard to the merits of the case or cases that the Court has created thejurisprudence
to which 1 have just referred; the hearings in which we are involved are concerned with
preliminary objections;
and
(3) it might be claimed that there is a contradiction between my argument before you today and
the position that the Court took in its Judgment of 11 July 1996 in the Genocide case and
"~udgrnent of 30 August 1924. P.C.I.J. Serie4 Nb. 2, p. 11; see also, for example the Judgrnents of
12April 1960, Righi of Passage over lndian Territoty, I.C.J. Reports 1960, p. 34; of 21 December 1962,South West
AJïrica.I.C.J. Reports 1962, p. 328 or of 30 June 1995. East Timor, I.C.J. Reports 1995, pp. 99-100, para. 22; of
11Junc 1998,Land and Mariiime Boundaty beiween Cameroon and Nigeria, IC.J. Reporfs 1998, pp. 314-315,para.87
or the Advisory Opinion of 26pril 1988.Applicabili~yof ille Obligation to Arbitrale under Section 21 of the United
NariorisHeadquarters Agreement of26 June 1937. 1.C.J Reports 1998, p. 27, para. 35; see alsothe Advisory Opinionof
30 March 1974,Inierpretaiion of Peace Treaties.1C.J. Reports 1950,p. 74 or the Judgmentof 11July 1996,Application
of the Convention the Prevention and Punishnlent of'the Crime of Cenocide. Preliminay Objections, I.C.J. Reports
1996.pp. 614-615, para. 29.
'8~udgrnentof 21 Decernber 1962quotedabove. ibid.
29~eeJudgments of 20 December 1974quoted above,supra, note 22.
''cf. ibid., p. 271, paras. 56 and 57, and pp.476-477, paras. 59 and 60.15 which it confirmed by the Judgment of 3 February 2003 following the application for revision
by Yugoslavia.
A brief examination is enough to show that none of these objections carries conviction.
25. As regards the first point, suffice it to recall that there is a distinction "between the
dispute itself and arguments used by the parties to sustain their respective submissions on the
dispute"3'. The reasons advanced by the Parties in support of their arguments are "elements which
might furnish reasons in support of the Judgment, but cannot constitute the de~ision"~~.Whatever
differences may exist betweert the Parties as to the reasons thatjustiSl a solution, these have no
effect upon the outcome of the dispute if they have the same concrete result. This is true in the
present case: even though the,ymay differ on the true grounds that preclude the jurisdiction of the
Court, France and Serbia and Montcnegro are in agreement that there is no legal basis capable of
founding that jurisdiction - the only issue pendingin the present case, which confirms, if need bey
that it isdevoid of purpose.
26. Mr. President, we n,owcorne to the second possible objection: the jurisprudence of the
Court on which 1 have relied to establish that the existence of a dispute is the condition sine qua
non for the exercise of juriçdiction relates to the merits of the dispute and not to incidental
proceedings initiated by a preliminary objection. This in no way alters the elements of the
problem, because in accordance with Article 79 of the Rules, the filing of an objection suspends
proceedings on the aridthe dispute between the Parties is provisionally confined "to those
matters that are relevant to the ~bjection"~',and this alorie will be the subject of the Judgment of
the court3'. In other words, as Ambassador Rosenne has noted, "[plreliminary objections
proceeding .. .take the form of self-containedproceeding ..."36,"self-contained proceedings", the
essential purpose of which i:; different from that of the main case and must be assessed per se.
16 Besides, it is perfectly accept.ablefor a Party to relinquish one or more objections, in which case
"Judgment of4 Decernber 1998,FisheriesJirrisdiction.I.C.J. Reports 1996, p. 449, para. 31.
"~ud~rnentof 18Decernber 1951Fisheries, I.C.J. Reports 15'51,p. 126;see also the Judgrnent of6 April 1955,
h'ottebohm,Second Phase,I.C.J. Reports 1955. p. 16.
"~rt. 79, para. 3.
34~aras.5 and 6.
"para. 7.
'('~heLaw and Practice of the international Court,1920-1996, Nijhoff,The HaguelBostonLondon, 1997,p. 922.the Court confines itself to placing the facton record3'. Itis difficult to see why, in parallel as it
were, it could not find under the same conditions that the Applicant State, having become the
respondent with respect to the objection (in excipidiendo reus fit actor), should relinquish
challenging the objection. In so doing it renders the dispute devoid of purpose "with al1the legaI
consequences that flow from it" [Translationby the Registry] and puts an end to the case.
27. The third potential objection to my argument is more specific. It concems the Court's
recent decisions in the cases relating to the Application of the Convention on Genocide and
Yugoslavia's Applicationfor Revision of the Judgment of 11July 1996on that Application, which
resulted in the Judgment of 3 February2003. Admittedly, these cases are different from the one
which concems us now and, in strict law, it would probably be enough to note that the Judgments
to which they led, pursuant to Article 59 of the Statute, only have the authority of resjudicata, as
emphasized by my friend and colleague Professor Tomuschat a moment ago. But it would be
curious and indeed unfortunate were the Court, even if it is not bound by the rule of precedent, to
appear to reverse its Judgment and, in 2004, take up a position contrary to the one it adopted in
2003, which was excellent. So this, Members of the Court, is what the French Republic is asking
of you.
28. By your Judgment of 11July 1996,you found that the Court "on the basis ofArticle IX
of the Convention on the Prevention and Punishment of the Crime of Genocide.. . [had]
jurisdiction to adjudicate upon the dispute"38 of which Bosnia and Herzegovina seised you
in... - 1 scarcely dare remind you- 1993. You confirmed it last year by rejecting the
Application for Revision filed by the Federal Republic of Yugoslavia on the basis of arguments
very close to those put forward by Serbia and Montenegro in its Written Observations dated
18December 2002 or in the letter from its Agent of 28 February 2003. But, in the former ofthese
two cases, you based yourselves, Members of theCourt, on the situation which existed at the time
whenyou delivered your Judgment on the Preliminary Objections, the situation in 1996. In the
37~eeforexamplethe Orderof 31October 1951,Rights of Nationals of the United States ofdmerica in Morocco,
I.C.J. Reports 1951, 111 or the Judgmentof11 July 1996, Application of the Convention on the Prevention and
Punishment ofthe Crime of Genocide,I.C.J.Reports 1996,p. 609, para.16,andp. 623, paseeaIsotheJudgment
of6 July 1957, Certain Nonvegian Loans, I.C.J. Reports 1957,p. 22.
38~.~.Reports 1996, p. 623,para.47 (2).latter, you found that the "fact" relied uponby Yugoslavia in support of its Application was not a
"new fact" withinthe meaning of Article 61 of the Statute and that it was therefore not "capable of
founding a request for revision of that ~ud~ment""- which, it should be emphasized, had the
authority of resjudicata with respect to the Parties. In so doing, you in no way precluded the
possible relevance of this fact -- in the event, Yugoslavia's admission to the United Nations- in
cases ruled upon subsequently. You even expressly reserved this possibility by stressing that "[a]
fact which occurs several years after a judgment has been given is not a 'new' fact within the
meaning of Article 61 ; this rernainsthe case" - and this iswhat interests us most- "irrespective
of the legal consequences tharsuch afacl may have"40,when not dealing with an application for
revision.
29. Also, Members of the Court, 1 have merelyanticipated a possible objection by Serbia and
Montenegro. But, in any event, you do not have to rule or1whether the grounds set forth by Serbia
and Montenegro to show the absence of any basis of thejurisdiction it originally asserted are well
founded or otherwise- any more than France is adopting a position on them. You need only
ascertain:
(1) that neither the respondeintStates, nor the applicant State consent to your jurisdiction, which
under current law isbasetjsolely onthe consent of the parties; andlor
(2) that, consequently, France's preliminaryobjections (and those of the other respondent States)
have become without object, since there is no longer any dispute between the Parties in this
respect.
The result, it seems to me, is,thatyou cannot but remove the case from your List - by ajudgment
or an order (which would perhaps be more logical)- without there thus being any need for you to
rule on the Preliminary Objectionsraised by France.
30. Further, the French Republic cautiously does not exclude this and Mr. Abraham will
briefly set out the essential points ifyou would kindlygive him the floor, Mr. President. However,
you may think this an appropriate point for the traditional break. For my part, Members of the
Court, it only remains to thank you for your attention.
39~udgmenotf 3 February 2003, para.68.
40~bid,ara. 67 (emphasisa~dded). Le PRESIDENT :Merci, Monsieur Pellet. Le moment est venu de marquer une pausede dix
minutes. Je donnerai ensuite la paroleà M.Abraham, agent de la France.
L'audience est suspendue de 11h 35 à Il h45.
Le PRESlDENT : Veuillez vous asseoir. Avant queje ne donne la parole àM. Abraham,je
souhaite vous informer que lejuge Al-Khasawnehest maintenant en mesure de prendre place sur le
siègepour le reste de l'audience de la matinée.Monsieur Abraham, vousavez la parole.
Mr. ABRAHAM: Mr. President, Members ofthe Court,
31. Professor Pellet has just shown that Serbia and Montenegro no longer consents to the
Court excrcising itsjurisdiction inthis case, since it is actually no longer calling for this. This will
probably provide an adequate basis for you to bring these proceedings to a close. However, the
Applicant has notitself drawn al1the logical conclusions necessarily flowing from the position it
set out on 18 December 2002. Accordingly, it declined to expressly discontinue proceedings
which. however, it patently does not wish to proceed with. And above al], it has not formally
withdrawn the serious accusations it made against my country as against the other respondent
States here present.
32. Indeed, in its efforts to bring France before the Court, the Federal Repubiic of
Yugoslavia did not hesitate to rely on the Convention for the Prevention and Punishment of the
Crime of Genocide and the compromissory clause in its Article IX. As 1shall show, there can be
no further doubt on this point: this basis ofjurisdiction is completely artificial, self-evidentas it is
that the acts of which the Applicant accuses France and itsNATO partners are not of a kind tofa11
within the provisions of the 1948Convention. 1shall also provide ample evidence that the alleged
acts cannot be attributed to France and that there cannot therefore be any dispute between it and
.
Serbia and Montenegro on the applicationof this Convention.
1. Lack of jurisdiction ratione materiae on the basis of the Genocide Convention
33. Mr. President, let me first set out the reasons why the Court patently does not have
jurisdiction ratione materiae to entertain the Yugoslav Application on the basis of the Genocide
Convention. 34. In its Memorial, the Federal Republic of Yugoslavia gave a long recital of alleged
"facts", for which it does not provide the slightest proof And France does not wish to open a
discussion-one clearly inappropriatein the context of preliminary objections -on the subject of
these allegations, whose subs1:anceand spurious presentation it disputes. France nevertheless
wishes to refute the serious and slanderous accusation niade against it: manifestly, neither the
military operations in which it took part together with itsNATO partners until 10June 1999, nor
the events which unfolded in Kosovo from that date revral any genocidal intent whatever on its
part. The complaints made against the French Republic therefore clearly do not fall within the
provisions of the Genocide Convention.
35. In fact, Serbia and Monteiiegro itself does nc~tappear to lend great credence to the
assertion - which 1might describe as far-fetched were it not offensive - that France, in common
with the other respondent States,had a hand in genocidal actions. Indeed, in both its Application
and its Memorial, it devotes the bulk of its arguments to alleged violations of the UnitedNations
Charter or of certain rules and principles of international humanitarian law. Patently - and the
Court was not wrong when clhoosingan appropriate title for the case- the core of the dispute
which the Applicant thus wishes to bringbefore it is related to the "legality of the use of force".
There cannot seriously be anyquestion here of violations ofthe Genocide Convention.
36. If Serbia and Montenegrohas persisted in relyirigon the 1948Convention,this is solely,
as everyone has understood, lbecauseit had the vain desire to avail itself of the compromissory
clause in Article lx. Indeed,sisthe Court noted in another case concerning Yugoslavia, neitherthe
United Nations Charter nor the principles of humanitarian lawmentioned by the Applicant actually
include "any provision ... coriferringupon the court juri~diction"~'.
37. This is a gross atternpt to abuse the Genocide Convention and one that is in any event
bound to fail. Indeed, for the Court to exercise itsjurisdiction, it is not enough for ajurisdictional
link between applicant and reçpondentto be invoked in abstracto; the arguments advanced by the
former - the applicant - are "of a sufficiently plausible character to warrant a conclusion that the
4'~pplication of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v.Yugoslavia), Order of 13Septernber 1993,I.C.J. Re1993,p. 341,para. 33.claim is based on the Treaty", to borrow the terms used by the Court in the Ambatielos case42.
Moreover, as you were careful to point out in the Judgment you have just delivered in the case
concerning Oil Platforms (Islamic Republic of Iran v. UnitedStates of America), establishing this
plausible link does not imply that the Applicant has to enable the Court to determine, from the
preliminary objection stage, whether the respondent's actions have actually prejudiced its rights,
but nevertheless places the onus on it to show that "the legalityof' these actions can "be assessed
in the light" of the provisions of a nature to found juri~diction~~.
38. Mr. President, Serbia and Montenegro has never managed to prove the existence of this
plausible link in the present case. Its Application and its Memorial remain particularly deficient in
this respect, and for good reason; they proceed, and 1 shall revert to this, on the basis of pure
allegations paraphrasing the text of the Genocide Convention, without ever explaining in what
respect that Convention is relevant to the purposes of settling the dispute. However, in its Orderof
2 June 1999relating to the provisional measures, your Courtwas careful to note, in the guise of an
implicit caveat addressed to the Applicant, that:
"in order to determine .. .whether a dispute within the meaning of Article IX of the
Genocide Convention exists, the Court cannot limit itself to noting that one of the
Parties maintains that the Convention applies, while the otherdenies it; and whereas
in the present case the Court must ascertain whether the breaches of the Convention
alleged by Yugoslavia are capable of falling within.the provisions of that instrument
and whether, as a consequence, the dispute is one which the Court has jurisdiction
ratione materiaeto entertain pursuant to Article IX"~~
39. Serbia and Montenegro, to succeed in convincing the Court that its allegations could fall
within the provisions of the Genocide Convention, would needto establish, at least plausibly, that
the acts of which it accuses France were committed "with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group as such", as provided in Article II of the
1948Convention. As the Court has asserted on a number of occasions, that element of intent
constitutes "the essential characteristic ofgenocide"45.
42
Ambatielos, Merits,Judgment, I.C.J. Reports 1953, p. 18.
4Judgmentof 6 November 2003, para.81.
44~.~.~. eports 1999, p. 372, para. 25; see also Oil Plarforms (Islamic Republic of v.United States of
America) Preliminary Objection, Judgment of 12December 1996,1.C.J.Reports 1996 (117.p. 810,par16.
45~pplication of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v.Yugoslavia), Order of 13Seplember 1993,I.C.J. Reports 1993, p. 345, para. 42; see also Legaliv of the
Threat or UseofNuclear Weapons,Advisory Opinion, I.C.J. Reports 1996(Ip.240, para. 26. 40. The crime of genocide thus necessarily arises from a "frame of mir~d"~ -~ in the words
of the International Law Comrnission - and entails the "denial of the right of existence of entire
human groups", solemnly denounced by this Court, "a denial which shocks the conscience of
mankind aiid results in great losses to humanity, and which is contrary to moral law and to the
spiritaiidainis of the United~ations"~'.
4 1. Sirice it instituted i.hese proceedings, the Federal Republic of Yugoslavia has never
succeeded, Mr. President, in producing prima facie evidence of any genocidal intent on the part of
Francc \\hcn it participated in the NATO military operations. How could it have been othenvise?
Duririg thosc operations, everything was done to ensure that the air strikes were solely directed
again\[ ~~iilitarytargets and every effort was madeto spare the civilian population. Howthen can it
bc clairncd tliat those who engaged their forces, in order - needless to Say- to put an end to a
human tragcdy, were acting to assuage somegenocidal intent?
42. In its written pleadings, the Applicant merely presents the alleged genocide as the
rnevitable consequence of the armed conflict which took place on its territory. However, as the
22 Court firmly indicated to the Applicant, "thethreat or use of force against a State cannot in itself
constitute an act of genocide vvithinthe meaningof Article IIofthe Genocide on vent ion"^^.
43. The Applicant's cavalier conductin the present case, in various respects, is al1the more
shoching because it relates to one of the most serious charges that can be levelled against a State.
The Applicant's only, andvery feeble, attempt to provide any evidence of genocidal intent has
bccn to accuse the Responderitsof using depleted uranium weapons and of bombing the Pancevo
chemical plants. Neither of those allegations stands iip to scrutiny. The first is technically
incorrect and, moreover, as the Court has already had occasion to indicate, the element of intent
cannot be inferred from the use of a specific ~ea~on~~.As for the chemical plants, they could be
'
seen as legitimate military targets under the rules and principles of international humanitarian law.
"1l.C. Commentary to Art. 17 of the draft Code of crimes against the Peace and SeofMankind, Report of
thc 1I.Con thc work of its 48th session. doc. N51110, p. 88.
4K~~scrvar~otnosthe Conveirtion onthe Prevention and Punishment of the Crime of Genocide. Advisory Opinion.
1.C.J lic~ports195p. 23.
48
Ordcr of 2 June1999,1.CJ. Reports 1999, p. 372, para. 27; see aLegaliw of the Threat or Useof Nuclear
lt'eapons.Advisoty Opinion, I.C.J. Reports 1996p. 240, para. 26.
4Sec Legality of the Threat or Useof Nuclear Weapons, ,ldvisoty Opinion, I.C.J. Reports 1996 (p. 240,
para. 26.Furthermore, in its Memorial, the Applicant never succeeds in demonstrating, notwithstandingthe
Court's implicit invitation to do so, "that the bombings which form the subject of the Yugoslav
Application 'indeedentail the element of intent, towards a groupas ~uch"'~~.
44. The same conclusion follows conceming the "new elements" arising after 10June 1999,
referred to in various passages of the Yugoslav Memorial. The reference to those new elements,
and the significance Serbia and Montenegro has apparently sought to give them, require comment.
First, inthe contextof these preliminary objections, Francedoes not intendto take a position on the
veracity of those facts, which the Applicant has not seriously sought to establish in its Memorial.
Secondly, those new elements, even if they really occurred, would radically transform the
subject-matter of the initial dispute. As the Court stated in its Order of 2 June 1999, it is "the
bombings which form the subject of the Yugoslav ~~~lication"~~.But those bombings endedwith
the adoptionon 10June 1999of Security Council resolution 1244(1999).
45. Lastly,and above all, the Applicant has onceagain utterly failed to show howthose "new
elements", evenif proved, could establish any genocidalintent on the part of France.
46. Mr. President, the inevitable conclusion is: none of these allegations, whether relatingto
military operations prior to 10June 1999or to subsequent events, is capable of falling within the
provisions of the Genocide Convention. Accordingly, there is no doubt that the Court lacks
jurisdiction to entertain the Yugoslav Application on the basis of Article IXof that Convention.
2. The alleged actscannot be attributed to France
47. The arguments 1havejust set out are more than sufficient to establish the Court's lackof
jurisdiction. As a final totally alternative, 1 shall therefore briefly mention one other bar to the
pursuanceof these proceedings.
48. This is the impossibility of attributing the alleged acts to France. The Preliminary
Objections filed by my Government on 5 July 2000 include a precise enumeration of the acts that
the Applicant has sought to attribute to France in its Application and Memorial (pp.34-36,
paras. 17-21). 1 shall thus simply point out that these totally unsubstantiated allegations concern
"order of2 June1999,I.C.J.Report1999, p. 373, para.27.
51I.C.J.Report1999,p. 373, para.27. actions in which France is said to have participated first in NATO-led operations and then in
connection with the KFOR mission after 10June 1999. Serbia and Montenegro never attempts to
establish the precise part France is alleged to have playetl in the perpetration of the purportedly
unlawful acts. It simply asserts, without further proof, that the NATO and KFOR acts are
attributable to the "~es~onder~ts"~~.But this is a travesty of the reality, for the sake of a very
unconvincinglegalargument.
49. Mr. President, France in no way wishes to ploy down, still less deny, its role in the
collective action taken, to prevent a humanitarian catastrophe in Kosovo and put an end to the
24 atrocities taking place there. However,as the Federal Republic of Yugoslavia itself indicates in its
Memorial, "The general rule on attribution of an act to a Etate is that a State is responsible for an
act committed under guidance and control of its organ as well as for an act endorsed by its
~r~an."~~
50. In the present case, France did not act individually and autonomously. Al1the acts in
which it took part for those: purposes were carried out under the guidance and control of
international organizations- and principally NATO. It \vas NATO which planned, decided upon
and implemented the military operation on Yugoslav tenitory in the spring of 1999. It was also
NATO which created KFOR and exercises unified commandand control of it, pursuant to Security
Council resolution 1244(1999), which authorized the deployment of that force "under United
Nations auspices".
51. Aware of this difficulty, the Federal Republic of Yugoslavia contends that in reality
NATO acts under the political and military guidance alid control of its member statesS4. This
curious conception of the transparency of the Organi~ation patently flies in the face of the
international legal personality it must be granted under the criteria identified by this Court in its
Advisory Opinion concerning Reparation for Injuries Suffered in the Service of the United
~utions~~. To convince oneself of the impossibility of attributing NATO's acts to France, one
52Memorial,section2.8, pp.327-328.
"lbid., p.328, para.2.8.3.
54~bid.,.327.
"I.c.J.Reports1949, p. 179.needs only to compare the legal nature of this Organization with that of the "Administering
Authority" of Nauru, as considered by the Court in its 1992~ud~ment~~H . owever, KFORis under
both NATO operational command and United Nations supervision, which authorized its
deployment and received periodic reportson itsactivities. It is in this context that Frenchnationals
participate in the courageous action led by KFOR.
52. lt is therefore not to France, nor to the other NATO mernber States nor States
participating in KFOR, that the alleged acts could be attributed,- which 1 certainly do not
believe - they did constituteviolations of international obligations. Consequently, in the present
proceedings, there is no dispute between Serbia and Montenegro and France which could be
entertaincd by the Court.
53. Mr. President, Membersof the Court, France considers, for al1the reasons setout above,
that the Court cannot uphold the Application of Serbia and Montenegro, and principally should
rernove the case from its List. In the alternative, France maintains its preliminary objections in
their entirety. It only remains for meto thank you for your attention.
Le PRESIDENT :Merci, Monsieur Abraham. Votre intervention conclut le premier tour des
plaidoiries de la France.
TheCourtrose ut 12.05 p.m.
56
Certain Phosphate Lands inNauru (Nauruv. Australia), Judgment of 26June 1992,I.C.J. Reports 1992,
p.258.
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