INTERNATIONAL COURT OF JUSTICE
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Communiqué
unofficial
for immediate release
No. 96125
Il July 1996
Case concerliing Application of the Convention on the Prevention
and Punishment of the Crime of Genocide
(JJosnia and Herzegovina v. Yugoslavia}
Judgment on preliminaey objections
The Hague, Il July 1996. In its Judgment delivered today, the Court rejected the preliminary
objections raised by Yugoslavia in the above case. It found that it had jurisdiction to deal with the case
on the basisf Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide,
dismissing the additional bases ofjurisdiction invoked by Bosnia-Herzegovina. The Court further found
that the Application filed by Bosnia-Herzegovina was admissible.
The Court will now therefore proceed to consider the merits case on the basis of Article IX
of the Genocide Convention.
*
The full text of the operative paragraph reads as follows:
"THE COURT,
(1) Having taken note of the witbdrawal of the fourth preliminary objection raised by
the Federal Republicf Yugoslavia,
Re...ts
ûù by fourteen votes ta one,
the first, second and third preliminary objections;
IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda,
Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koroma,
Vereshchetin, Ferrari Bravo, Parra-Arangure~ad hoc Lauterpacht;
AGAINST: J.u.dad hoc Kreéa;
(b) by eJeven votes to four,
the fifth preliminary objection; - 2-
IN FAVOUR: President Bedjaoui; Vice-President Schwebel;
Judges Guillaume, Shahabuddeen, We1ram!mtry,Ranjeva, Herczegh, Koroma, Ferrari
Bravo, Parra-Arangur1yQgg_ad hoc La:uterpacht;
AGAINST: ~ Oda, Shi, Vereshchetin; Judge ad hoc Kreéa;
W by fourteen votes to one,
the sixth and seventh preliminary objections;
IN FAVOUR: President Bedjaoui; Vice-President Schwebel;
~ Oda, Guillaume, Shahabuddeen, Wèeramantry, Ranjeva, Herczegh,
Shi, Koroma, Vereshchetin, Fertari Bravo, Parra-Aranguren;
~ ad hoc Lauterpacht;
AGAINST: ~ad hoc Kreéa;
(2)W by thirteen votes to two,
Ei.ruithat, on the basis of Article IX of the Convention on the Prevention and
Punishment of the Crime of Genocide, it bas jurisdictioÀto adjudicate upon the dispute;
IN FAVOUR: President Bedjaoui; Yice-Presidet Schwebel;
~ Guillaume,Shahabuddeen, Weeramanrry, Ranjeva, Herczegh, Shi, Koroma,
Vereshchetin, Ferrari Bravo, Parra-Ara~adren; hoc Lauterpacht;
AGAINST: ~ Oda; ~ad hoc Kreéa;
.(lBy fourteen votes to one,
Dismisses the additional basesf jurisdiction invoked by the Republic of
Bosnia-Herzegovina;
IN FAVOUR: President Bedjaoui; Vice-President Schwe~el; Oda,
Guillaume, Shahabuddeen, WeeramanRanj e rcae,h, Shi, Koroma, Vereshchetin,
Ferrari Bravo,rra-Aranguren; Judge ad hoc Kreéa;· •
AGAINST: Judge ad hoc Lauterpacht;
(3) By thirteen votes to two,
Finds that the Application filed by the RepublicBosnia-Herz.egovina on
20 March 1993 is admissible.
IN FAVOUR: President Bedjaoui; Vice-Presid1nt Schwe~Guillaume,
Shahabuddeen, Weeramantry,Ranjeva, Herczegh,Shi, Koroma, Vereshchetin, Ferrari Bravo,
Parra-Aranguren~ad hoc Lauterpacht;
AGAINST: ~ Oda; ~ad hoc Kreéa."
*..
- 3 -
i
The Court was composed as follows: President Bedjaoui; Vice-President Schwebel;~ Oda,
Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Ferrari Bravo,
Parra-Aranguren; ~ ad hoc Lauterpacht, Kreéa; Registrar Valencia-Ospina.
Judge Oda appends a declaration to the Judgment of the Court; Judges Shi and Vereshchetin
append ajoint declaration to the Judgment the Court; Judge .rui.çauterpacht appends a declaration
to the Judgment of the Court.
Judges Shahabuddeen, Weeramantry and Parra-Aranguren append separate opinions to the Judgment
of the Court.
Judge iMl.b..K_reéaappends a dissenting opinion to the Judgrnent of the Court.
(A brief summary of the declarations and of the opinions may be found in the Annex to this Press
Communiqué.)
*
The printed text of the Judgment and the declarations and opinions appended to it will become
available in due course (orders and enquiries should be addressed to the Distribution andection,
Office of the United Nations, 1211 Geneva 10; The Sales Section, United Nations, New York, N.Y.
10017; or any appropriately specialized bookshop).
A summary of the Judgment is given below. 1t has been prepared by the Registry for the use of
the Press and in no way involves the responsibility of the Court. It cannat be quoted against the text of
the Judgment, of which it does not constitaneinterpretation.
*
* *
Summacy of the Judgment
•
Institution of proceedings and bistory of the case (paras. 1-15)
The Court begins by recalling that on 20 March 1993, the Republic of Bosnia-Herzegovina
(hereinafter called "Bosnia-Herzegovina") instituted proceedings against the Federal Republicof
Yugoslavia (hereinafter called "Yugoslavia") in respect of a dispute concerning alleged violations of the
Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter called "the Genocide
Convention"), adopted by the General Assemblyof the United Nations on 9 December 1948, as weil as
various matters which Bosnia-Herzegovinadaims are connected therewith. The Application invoked
Article IXof the Genocide Convention as the basis of the jurisdiction of the Court.
On 20 March 1993, immediately after the filing of its Application, Bosnia-Herzegovina submitted
a request for the indication of provisional measures under Article 41 of the Statute. On 31 March 1993,
the Agent of Bosnia·Herzegovinafiled in the Registry, invoking it as an additional basis of the jurisdiction
of the Court in the case, the text of a letter dated 8 June 1992, addressed to the President of the
Arbitration Commission of the International Conference for Peace in Yugoslavia by the Presidents of the
Republics of Montenegro and Serbia. On 1 April 1993, Yugoslavia submitted written observations on
Bosnia-Herzegovina's request for provisional measures, which, in turn, it recommended the Court to --~
order the application of provisional measures to Bosnia-HerzeBy an Order dated 8 April 1993,
the Court, after hearing the Parties, indicated certain provisional measures with a view to the protection
of rights onder the Genocide Convention.
On 27 July 1993, Bosnia-Herzegovina submitted a new request for the indication of provisional
measures; and, by a series of subsequent communications, it stated that it was amending or supplementing
that request, as weil as, in sorne cases, the Application, including the basis ofjurisdiction relied on therein.
By letters of 6 August and 10 August 1993, the Agent ofl Bosnia-Herzegovinindicated that his
Government was relying, as additional bases ofthejurisofthe Court in the case, on, respectively,
the Treaty between the Allied and Associated Powers and the Kingdom of the Serbs, Croats and Slovenes
on the Protection of Minorities, signed at Saint-Gennain-eb-Lon 10 September 1919, and on
customary and conventional internationalaws of war and internationalhumanitarianlaw. On
10August 1993, Yugoslavia also submitted a request for the intlication ofprovisional measures; and, on
10 August and 23 August 1993, it filed written observa1nBosnia-Herzegovina's new request, as
amended or supplemented. By an Order dated 13 September 1993, the Court, after hearing the Parties,
reaffinned the measures indicated in its Order of 8 April 1993 and declared that those measures should
be immediately and effectively implemented.
Within the extended time:-limit of30 June 1995 for the filing of the Counter-Memorial, Yugoslavia
raised preliminary objections conceming, respectively, the aamissibility of the Application and the
jurisdiction of the Court to entertain the case. (ln view of its length, the text of the preliminary objections
bas not been reproduced in this summary.) 1
By aletter dated 2 February 1996, the Agent ofYugoslav ia submitted to the Court, "as a document
relevant to the case", the text of the General Framework Agreement for Peace in Bosnia and Herzegovina
and the annexes thereto (collectivel"the peace agreem1 i~itlld 'i' D)a,ton, Ohio, on
21 November 1995 and signed in Paris on 14 December 1995 (hereinafter called the "Dayton-Paris
Agreement").
Public hearings on the preliminary objections raised by Yugoslavia were held between 29 April and
3 May 1996.
Jurisdictiooratione persona(paras. 16-26)
Recalling that Bosnia-Herzegovina bas principallfia basis for the jurisdiction of the C•urt
in this case, on Article IX of the Genocide Convention, the €oort initially considers the preliminary
objections raised by Yugoslavia on this point. lt takes note oftHe withdrawal by Yugoslavia ofits fourth
preliminary objection, which therefore need no longer be dealt itthird objection, Yugoslavia,
on various grounds, has disputed the contention that the Convention binds the two Parties or that it bas
entered into force between them; and in its fifth objection, Yugbslavia bas objected, for various reasons,
to the argument that the dispute submitted by Bosnia-Herzegov!ina falls within the provisions of Article
IX of the Convention.
The proceedings instituted before the Court are between two States whose territories are located
within the fonner Socialist Federal Republic of YugoslaAt the time of the proclamation of the
1
Federal Republic ofYugoslavia, on 27 April 1992, a formai declaration was adopted on its behalfwhich
expressed the intention of Yugoslavia to remain bound by the ihternational treaties to which the fonner
Yugoslavia was party. The Court observes, furthermore,ihas not been contested that Yugoslavia
was party to the Genocide Convention. Thus, Yugoslavib~uas bntde provisions of the Convention
on the date of the filing of the Application in the present case, namely, on 20 March 1993. ·.:~,_~
~.: .
- 5 -
For its part, on 29 December 1992, Bosnia-Herzegovina transmitted ta the Secretary-General of the
United Nations, as depositary of the Genocide Convention, a Notice of Succession. Yugoslavia has
contested the validity and legal effect ofthat Notice, as, in its view, Bosnia-Herzegovina was not qualified
to become a party to the Convention.
The Court notes that Bosnia-Herzegovina became a Member of the United Nations following the
decisions adopted on 22 May 1992by the Security Council and the General Assembly, bodies competent
under the Charter. Article Xl of the Genocide Convention opens it to "any Member of the United
Nations"; from the time of its admission to the Organization, Bosnia-Herzegovina could thus become a
party to the Convention. lt is of the view that the circumstances of Bosnia-Herzegovina's accession to
independence, which Yugoslavia refers to in its third preliminary objection, are of little consequence.
It is clear from the foregoing, that Bosnia-Herzegovina could become a party to the Convention
through the mechanism of State succession. The Parties to the dispute differed, however, as ta the legal
consequences to be drawn from the occurrence of a State succession in the present case.
The Court does not consider it necessary, in arder to decide on its jurisdiction in this case, to make
a determination on the legal issues conceming State succession in respect to treaties which have been
raised by the Parties. Whether Bosnia-Herzegovina automatically became party to the Genocide
Convention on the date of its accession to independence on 6 March 1992, or whether it became a party
as a result - retroactive or not - of its Notice of Succession of 29 December 1992, at ail events it was
a party to it on the date of the filing of its Application on 20 March 1993.
Yugoslavia submitted that, even supposing that Bosnia-Herzegovina bad been bound by the
Convention in March 1993, itcouJd not, at that time, have entered into force between the Parties, because
the two States did not recognize one another and the conditions necessary to found the consensual basis
of the Court'sjurisdiction were therefore lacking. The Court observes, however, that this situation no
·longer obtains since the signature, and the entry into force on 14 December 1995, of the Dayton-Paris
Agreement, Article X of which stipulates that the Parties "recognize each other as sovereign independent
States within their international borders". And it takes note that, even if it were to be assumed that the
Genocide Convention did not enter into force between the Parties until the signature of the Dayton-Paris
Agreement, ali the conditions are now fulfilled ta found the jurisdiction of the Court ratione personae.
lt adds that, indeed, the jurisdiction of the Court must nonnally be assessed on the date of the filing of
the act instituting proceedings, but that the Court, like its predecessor, the Permanent Court of
International Justice, has always bad recourse to the principle according ta which it should not penalize
a defect in a procedural act which the applicant could easily remedy.
•
In the light of the foregoing, the Court considers that it must reject Yugoslavia's third preliminary
objection.
Jurisdiction ratione materiae (paras. 27-33)
In order to determine whether it bas jurisdiction to entertain the case on the basis of Article IX of
the Genocide Convention, it remains for the Court to verity whether there is a dispute between the Parties
that falls within the scope of that provision. Article IX of the Convention is worded as follows:
"Disputes between the Contracting Parties relating to the interpretation, application or
fulfilment of the present Conyention, including those relating to the responsibility of a State
for genocide or for any of the other acts enumerated in article III, shall be submitted to the
International Court of Justice at the request of any of the parties ta the dispute."
lt is jurisdiction rationmatedae, as so defined, to which Yugoslavia's fifth objection relates. 1-·
- 6 -
The Court notes that there persists between~efe Pi,tres
1
"a situation in which the two sides hold clearly opposite views conceming the question of the
performance or non-performance of certain treaty obl(Interpretation of Peace
Treaties with Bulgaria. Hungary and Romavia First Phase. Advisory Opinion. I.C.J. Reports
125ü,p.74) 1
1
and that, by reason of the rejection by Yugoslathe complaints formulated against it by
Bosnia-Herzegovina, there is a legal dispute. 1
1
To found its jurisdiction, theust, however, still !ensure that the dispute in question does
indeed faU within the provisions of Article IX of Codv~ntion.
1
Yugoslavia disputes Itcontests the existence in this[case of an "international dispute" within
the meaning of the Convention, basing itself on two prfirst, that the contlict occurring in
certain parts of the Applicant's territory wanatu aYu~o,lavia was not party toit and did
not exercise jurisdiction over that territory at the time in questibn; and second, teat State responsibility,
as referred to inthe requests ofBosnia-Herzegovina, was exclud,d from the scope of application of Article
IX. ,
!
With regard to Yugoslavia's first proposition, the Court cqnsiders that, irrespective of the nature of
the conflict forming the background to the acts referred to in Articles II and III of the Convention, the
obligations of prevention and punishment which ar~ponthnStates parties to the Convention
remain identical.further notes that itcannat, ath~proceedings, settle the question whether
Yugoslavia took partdirectly or indirecin the contli9t at issue, which clearly belongs ta the
merits. Lastly, as to the territorial problems linked to the appliÇation the Court is of
the view that it follows from the abject and purpose of the Ce;nvention that the rights and obligations
enshrined by the Convention are rights and obligations erga ombes. The Court notes that the obligation
each State thus hasprevent and to punish the crge~ocf iint erritorially limited by the
Convention. 1
Conceming the second proposition advanced Yu~o reardng athvtyie af ,tate
responsibility envisaged in Article IX of the Cth~eCourt observes that the reference in
Article IX to "the responsibility of aState for genocide or for any of the other acts enumemted in Article
III", does not exclude any form of State responst~iresponsibility of aState for acts •f its
organs excluded by Article IV of the Convention, which contemplates the commission of an act of
genocide by "rulers" or "public offic.ials". In fo~egoghtenCo,rt considers that it must
reject the fifth preliminary objection of Yugoslavia.
Jurisdictiratione temporis (para. 34)
In this regard, the Court confines itself ta the observation ihat the Gand ine Convention -
particular Article does not contain any clausobjee c~effect of which is to limit in such
manner the scope its jurisdiction ratione temporis, and observes that neither did the Parties themselves
make any reservation to that endtothe Convention or çm the occasion of the signature of the
Dayton-aris Agreement. The Court thus finds that it has jurisâiction in this case to give effect to the
Genocide Convention with regard to the relevant facts whiched since the beginning of the
contlict which took placeosnia-HerzegoviAs a result, \the Court considers that it must reject
1
Yugoslavia's sixth and seventh preliminary objections./ - 7 -
Additiooal basis of jurisdictioo invoked by Bosnia-Herzegovina (paras. 35-41)
The Court finds further that it is unable to uphold as a basis for its jurisdiction the present case
a letter dated 8 June 1992 addressed to the President of the Arbitration Commission of the International
Conference for Peace in Yugoslavia by Mr. Momir Bulatovié,President ofthe Republic ofMontenegro,
and Mr. Slobodan Milosevié,President of the Republic of Serbia; the Treaty between the Allied and
Associated Powers (the United States of America, the British Empire, France, ltaly and Japan) and the
Kingdom of the Serbs, Croats and Slovenes, that was signed at Saint-Germain-en-Laye on
10 September 1919 and entered into force on 16 July 1920; or any other of the additional bases of
jurisdiction invoked by Bosnia-Herzegovina. Nor does the Court find that Yugoslavia has given in this
case a "voluntary and indisputable" consent which would confer upon the Court a jurisdiction exceeding
that which it has already acknowledged to have been conferred upon it by Article IX of the Genocide
Convention. lts only jurisdiction to entertain the case is on the basis of Article IX of the Genocide
Convention.
Admissibility of the Application (paras. 42-45)
According to the first preliminary objection ofYugos lavia, the Application is said to be inadmissible
on the ground that it refers to events that took place within the framework of a civil war, and there is
consequently no international dispute upon which the Court could make a finding.
This objection is very close to the fifth objection which the Court has already considered. ln
responding to the latter objection, the Court has in fact also answered this. Having noted that there does
indeed exist between the Parties a dispute falling within the provisions of Article IX of the Genocide
Convention - that is tosay an international dispute-, the Court cannat find that the Application is
inadmissible on the sole ground that, in order to decide the dispute, it would be impelled to take account
of events that may have occurred in a context of civil war. It follows that the first objection of
Yugoslavia must be rejected.
According to the second objection of Yugoslavia, the Application is inadmissible because, as
Mr. Alija Izetbegovié was not serving as President of the Republic -but only as President of the
Presidency - at the time at which he granted the authorization to initiate proceedings, that authorization
was granted in violation of certain rulesof domestic law of fundamentai significance. Yugoslavia likewise
contended that Mr. lzetbegovié was not even acting legally at that time as President of the Presidency.
The Court observes that, according to international law, there is no doubt that every Head of State
is presumed to be able to act on behalf of the State in its international relations and that at the time of the
filing of the Application, Mr. Izetbegoviéwas recognized, in particular by the United Nations, as the Head
of State ofBosnia- Herzegovina. lt therefore also rejected the second prelirninary objection ofYugos lavia.
*
The Court emphasizes, finally, that it does not consider that Yugoslavia has, in presenting its
objections, abused its rights to do so under Article 36, paragraph 6, of the Statute of the Court and
Article 79 of the Rules of Court, and concludes that having established its jurisdiction under Article IX
of the Genocide Convention, and having concluded that the Application is admissible, the Court may now
proceed to consider the merits of the case on that basis.
i
__j__ Annex to Press Communique No. 96/25
Declaration of Judge Oda
Judge ODA, although conscious of sorne disquiet at being disassociated from the great majority of
the Couri, stated that as a matter of legal conscience he felt bound to present his position that the Court
should have dismissed the Application. Judge Oda cast a negative vote for the reason that the Court Jacks
jurisdiction ratione materiae. In his view Bosnia-Herzegovina, in its Application, did not give any
indication of opposing views regarding the application or interpretation of the Genocide Convention which
may have existed at the time of filing of the Application, which atone could enable the Court to find that
there is a dispute with Yugoslavia under that Convention.
Judge Oda states that the Genocide Convention is unique in having been adopted by the General
Assembly in 1948 at a time when- due to the success of the Nuremberg Trial- the idea prevailed that
an international criminal tribunal should be established for the punishment of crimina1acts directed against
human rights, including genocide, and that the Convention is essentially directed nQ! to the rights and
obligations of States hl!! to the protection of rights of individuals and groups of persans which have
become recognized as universal. He states further that the failure of any Contracting Party "to prevent
and to punish" such a crime may only be rectified and remedied through (i) resort to a competent organ
of the United Nations (Article VIII) or (ii) resort to an international penal tribunal (Article VI), bunQ1
by invoking the responsibility of States in inter-State relations before the International Court of Justice.
Referring to the travaux préparatoires of the Convention he pointed to the very uncertain character
of Article IX of the Genocide Convention. In his view, Bosnia-Herzegovina, in arder to seise the Court
·of the present case, would certainly have bad to show that Yugoslavia could indeed have been responsible
for the failure of the fulfilment of the Convention in relation to itself, but, more particularly,
Bosnia-Herzegovina would have bad to show that Yugoslavia bad breached the rights of
Bosnia-Herzegoyina as a Contracting Party (which by definition is aState) that should have been protected
under the Convention. This, however, bas not been shawn in the Application and in fact the Convention
is not intended to protect the rights of Bosnia-Herzegovina as a State.
After ali, Bosnia-Herzegovina does not, in the view of Judge Orla, seem to have alleged that it has
a dispute with Yugoslavia relating to the interpretation or application of the Genocide Convention,
although only such a dispute - and not the commission of genocide or genocidal acts which certainly are
categorized as a crime under international law - can consitute a basis of the Court'sjurisdiction under the
Convention.
Judge Oda is inclined to 'doubtwhether the International Court of Justice is the appropriate forum
for the airingof the questions relating to genocide or genocidal acts which Bosnia-Herzegovina bas raised
in the current proceedings and whether international law, the Court, or the welfare of the unfortunate
individuals concerned, will actually benefit from the consideration of cases of this nature by the Court.
He adds that the Court should maintain a very strict position in connection with questions of its
jurisdiction as the consensus of the sovereign States in dispute essentially constitutes the basis of that
jurisdiction. If the basic conditions were to be relaxed, he would expect to see a flood of cases pouring
into this judicial institution,e task of which is mainly the settlement of international disputes.
Joint Declaration of Judge Shi and Judge Vereshchetin
In their joint declaration Judge Shi and Judge Vereshchetin state that, since Article IX of the
Genocide Convention affords an arguable legal basis for the Court's jurisdiction to the extent that the
subject matter of the dispute relates to "the interpretation, application or fulfilment "of the Convention,
they voted in favour of the Judgment, except for paragraph l(ç) of its dispositif. Nevertheless, they ~1
- 2 -
express their concem over sorne substantial elements of the case. In particular, they are disquieted by the
statement of the Court, in paragraph 32 of the Judgment, that Article IX of the Genocide Convention "does
not exclude any form of State responsibility".
In their view, the Convention on Genocide was essentiali!Yand primarily designed as an instrument
directed towards the punishment of persans committing genocide or genocidal acts and the prevention of
the commission of such crimes by individuals, and retaThe determination of the
international community to bring individual per:petrators of genocidal acts to justice, irrespective of their
ethnicity or the position they occupy, points to the most approJriate course of action. Therefore, in their
view, it might be argued that the Internatiin~ot the proper venue for the adjudication
of the cornplaints which the Applicant has raised in the curreJt proceedings.
Declaration of Judge ad boe Lauterpacht
Judge ruiLauterpacht appended a declaration explaining that, so as ta avoid any appearance of
inconsistency with his remarks on forum prse1aaropinnoofSeptem ber 1993, he did
not vote in favour of paragraph 2 .(h) of the operative part of t1IeJudgmentein sa far as it excluded any
jurisdiction of the Court beyond that which itIXof the Genocide Convention.
Separate Opinion of Judge Shababuddeen
ln his separate opinion, Judge Shahabuddeen expressed the view that the special characteristics of
the Genocide Convention pointed to the davoieradsicsson time-gapThis justified
the Convention being construed as implying t.unilateral undertaking by each party to
the Convention to treat successor States asfrbmindependence any status which the
predecessor State had as a party to the neceentconenaul ond is completed when
the successor State decides to avail underf oftyrearinn~itseas a party to the
Convention.
Separate Opinion of Judge Weeramantry
Judge Weeramantry, in his separate opinion, states that the Genocide Convention is a multilateral
humanitarian convention to which theresucce usosieobeak-up afState which i•
party to it. 1
In his view, this principle folJows from many cand is part of contemporary
international law. Among these circumstanCon~ere ts otcened on individual State
interests, and transcends concepts of State sovereignty. The rignts it recognizes impose no burden on the
State, and the obligations it imposes exist independenobligationMoreover, it
embodies rules of customary international law, and is a contnbutioA furtheral stability.
circumstance is the undesirability of a hiatus in succession ta tHeGenocide Convention, associated with
·the special importance of human rights guarantees against genbcide duTheg periods of transition.
beneficiaries of the Genocide Convention are not third parties in the sense which attracts the res inter alios
.a&mprincipThe rights conferred by the Convention are norl-derogable
For ali these reasons, the conclusion is compelling thlt automatic succession applies ta the
Convention.
In his opinion, Judge Weeramantry also expresses the view that the principle of continuity ta the
Genocide Convention is of particularcontemtaninteaio~al law, owing ta the break-up - - - - - ~ -- - - - ~ ~ -
of States in many parts of the world. It is precisely in such unsettled times that the people of such States
need the protection of the Convention.
Separate Opinion of Judge Parra-Aranguren
Notwithstanding his approval of the operative parts of the decision, the separate opm10n of
Judge Parra·Aranguren insisted on two points: (1) the admission made by Yugoslavia on 10 August 1993
thatBosnia Herzegovina was a party to the Genocide Convention when requesting the Court for indication
of provisional measures, being therefore applicable its Article IX on jurisdictiand (2) the declaration
made by Bosnia Herzegovina expressing its wish ta succeed to the Convention with effect from 6 March
1992, the dateon which it became independent. According to Judge Parra·Aranguren the Court should
have remarked on and developed the point that this declaration is in conformity with the humanitarian
nattireof the Genocide Convention, the non·performance of which may adversely affect the people of
Bosnia Herzegovina; observation that the Court bad already made in its Advisory Opinion of 21 June
1971 on the Legal Consequences for States of the Continued Presence of South Africa in Nam ibia (South
West Africa) notwithstanding Security Counci 1ResoJution 276 (1970) (1.C.J. Reports 1971, p. 55, para.
122) and that is in conformity with Article 60, paragraph 5, of the 1969 Vienna Convention on the Law
of Treaties.
Dissenting Opinion of Judge ad hoc Kreéa
Judge ad hoc Kreéafinds that the relevant conditions for the entertainment of the case by the Court,
those relatingto bath jurisdiction and admissibility, have not been met.
There exists the dilemma, not resolved by the Court, asto whether Bosnia and Herzegovina at the
time when the Application, as weil as the Memorial, were submitted, and Bosnia and Herzegovina today,
after entry into force of the Dayton Agreement, are in fact one and the same State. This question is of
irrefutable relevance in the circumstances of the present case, since it opens the way for persona standi
in indjcio of Bosnia and Herzegovina. Also, he is of the opinion that the proclamation of Bosnia and
Herzegovina as a sovereign and independent State constitutes a substantial breach, bath formally and
substantively, ofthe cogent norm on equal rights anself~deten nfienple.i o ncordingly, one can
speak only of succession de facto and not of succession de iure in relation ta the transfer of the rights and
obligations of the predecessor State.
Judge ad hoc Kreéadisagrees with the Court that the "obligation each State thus has to prevent and
punish the crime of genocide is not territorially limited by the Convention" (para. 31 of the Judgment).
He is of the opinion that it is necessary to draw a clear distinction between the legal nature of the norm
prohibiting genocide and the implementation or enforcement of that norm. The fact that the norm
prohibiting genocide is a norm of ius cogens cannat be understood as implying that the obligation of
States to prevent and punish genocide is not territorially limited. More particularly, that norm, lîke the
other norms of international law, is applicable by States not in an imaginary space but in a territorialized
international comm unity, which means that territorial jurisdiction, as a general rule, suggests the territorial
character of the obligations of those States bath in prescriptive and enforcement terms. If this were not
the case, the norms of territorial integrity and sovereignty, also having the character of ius congens. wouid
be violated.
He is of the opinion that, under the Genocide Convention, a State cannat be responsible for
genocide. The meaning of Article IV of the Convention which stipulates criminal responsibility for
genocide or the other acts enumerated in Article III of the Convention excludes, inter a\ia. the exclusion
of the criminal responsibility of States and rejects the application of the act ofState doctrine in this matter. ~4 -
Judge ad hoc Kreéa finds that "automatic succession" is lex àematter of progressive
developmentof international law, rather than of codification. Notification of succession, in his opinion,
is not appropriate ~forexpressing consent to be bountreaty, since, as a unilateral act, it seeks
ta conclude a collateral agreement in simplified fte other parties, within the framework of
general multilateral conventions, like the Genocide Conventioh.
•
- Judgment on preliminary objections
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) - Judgment on preliminary objections