InternationalCourt Cour internationale
of Justice de Justice
La HAYE
THE HAGUE
Public sitting
held on Thursday 26 August 1993, at 3 p.=., at the Peace Palace,
President Sir Robert Jennings presiding
in the case concerning Applicationof the Convention on
the Prevention and Punishment of the Crie of Genocide
(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))
Requests for the Indication of Provisional Measures
No 2
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VEFLBATIM RECORD
Audience publique
tenue le jeudi 26 août 1993, à 15 heures, au Palais de la Paix,
saus la présidence de sir Robert Jennings, Président
en I'affaire relative à l'Application de 1s convention pour
la prhvention et la répression d~ crime de génocide
(Bosnie-Herzégovinec. Yougoslavie (Serbie et ~onténégro))
Demandes en indication de mesures conservatoires
no 2
COMPTE BERDUPresent:
PresidentSir RobertJennings
Vice-PresidentOda
Judges Schwebel
Bedjaoui
Ni
Evensen
Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ajibola
Herczegh
Judges ad hoc Lauterpacht
Kreca
RegistrarValencia-Ospinaprésents:
Sir RobertJennings, Président
M. Oda, Vice-Président
MM. Schwebel
Bedjaoui
Ni
Evensen
Tarassov
Guillaume
Shahabuddeen
AguilarMawdsley
Weeramantry
Ajibola,juges
Herczegh,juges
Lauterpacht,
Kreca, juges ad hoc
M. Valencia-Ospina, GreffierThe Govexnment of the Regublic of Bosnia and Herzegovina is represented
by: :
H. E. Mr. MuhamedSacirbey,Ambassador and Permanent Representative
of Bosniaand Herzegovinato theUnitedNations;
Mr. FrancisA. Boyle,Professorof InternationaL law,
as Agent;
Mr. Phonvan den Biesen,Advocate,
Mr. Khawar Qureshi, Barrister,ngland,
as Advocates and Counsel;
Mr. MarcWeller,Assistant Lecture rn Law,Universityof Cambridge,
SeniorResearch Fellowof St. Catharine'sCollege, Cambridge,
as Counsel.
The Government of the Federal Republicof Yugoslavia (Serbia and
Montenegro) is represented by:
Mr. RodoljubEtinski,Professorat the Schoolof Law,Novi Sad
(Yugoslavia),
Mr. DjordjeLopicic(LL.C.),Chargé d'affaire a.i. of theEmbassy
of the FederalRepublicof Yugoslavia to the Netherlands,
as Agents;
Mr. ShabtaiRosenne,AdvocatefromJerusalem(Israel),
Mr. MiodragMitic (LL.C.),ChiefLegalAdviserof the Federal
Ministryof ForeignAffairs,
as Counsel and Advocates.Le Gouvernement de la g os nie-~erzégoviest représenté par :
S. Exc. M. MuhamedSacirbey,ambassadeur et représentant permanent
de la Bosnie-Herzégovina euprès del'organisation des
NationsUnies,
M. Francis A. Boyle,professeurde droit international,
comme agent;
M. Phon van den Biesen, avocat,
M. Wawar Qureshi, avocat,
comme avocats et conseils;
M. Marc Weller, Assistant Lecturerin Law à l'Universitéde
Cambridgeet Senior Research Fellow of St. Catharine's College,
Cambridge,
comme conseil.
Le Gouvernement de la République fédérativede Yougoslavie (Serbieet
~~onténégro)est représenté par:
M. RodoljubEtinski,professeur à la Facultéde droit,Novi Sad
(Yougoslavie),
M. DjordjeLopicic(LL-C.),chargéd'affairesa.i. de l'ambassade de
la République fédérative de Yougosla vixePays-Bas,
comme agents;
M. ShabtaiRosenne,avocatau barreau de Jerusale( mIsrael),
M. MiodragMitic (LL.C.),conseillerJuridiqueen chefdu ministère
fédéraldes affaires étrangères,
comme conseils etavocats. The PRESIDENT: Pleasebe seated. Now we hear the BosnianReply.
Mr. Sacirbey.
Mr. SACIRBEY:Thankyou Mr. President. Mr. President,
distinguishedMembersof the Court,1 ask foryour understandinbecause
after myReply1 willhave to leave for a meetinwith the Ministryof
this country,the Netherlands,nd 1willmakemy Replyrathershort.
May it please the Cour, do not wishto strainyour patiencefor
too longin responseto the commentof Mr. Miticand Mr, Lopicic. 1 am
the PermanentRepresentativof the Republicof Bosnia and Herzegovina
beforethe UnitedNations. 1 am so accredited.1 do notrepresent a
formerrepublicas 1 do notrepresentthe so-calledrepublic. Our
republic representsis represented, by Muslims,rbs,Croats and
others. We pride ourselveosn beinga pluralistic, multicultural
Society. The militarythatdefendsour countryis one in which Serbs,
Muslimsand Croats serveto defendSerbs,Muslims andCroats. My own
missionin IJewYork hasservedMuslim,Croat,Jewishand othermembers.
Bosnia and Herzegovinas a defined politicalnd geographiunit has
existed forapproximately theast thousanydears; as a kingdom,as a
province,as an autonomistegionor republicin the OttomanEmpire after
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the Hungarian Empire orhe former YugoslaviaI.n factunderthe Berlin
Congressit was given speciastatus. Its bordershave beenwell defined
for at least the lastentury.
The questionsthatMr. Miticand Mr. Lopicic wantto raiseregarding
our legitimacyinbordersare in factthemotivationto promotethe
genocidethathas boen broushtbefore thisCourt. 1 thinktheyare
rather irrelevant buthe factthat theybringit before the Court
thinkis relevant. The Serbiandelegationwantsto create the impressio of a civil war
when, in fact,this is a war ofaggression andgenocide. Theywant to
talk about victimo sfal1 ethnicities- yes,many Serbs also sufferm,any
Serbs are murderedby fellowSerbsin the attemptto protect non-Serb
neighbours or resistthe fascistpoliciesof theirGovernment.
Allegations of the victimizatioonf individuaSerbs are madeto justify
the crimeof genocideby the Republics of Serbiaand Montenegro.
1 am not hereto defendany paramilitaryunit or any individual
responsible for crimes. Thoseindividuals,if in facttheyare
responsible,will bebrought before theWar CrimesTribunal when it is
established in The Hague. 1am hereto speakon behalfof the
Government, that actively representsl1 ethnicities anddemandsthe
protection of al1 membersof Our societyof al1 ethnicities.1 also
representa Government whosepopulation unfortunatelyis the victimof
genocide.
We cannot and shoulndot inanyway compare independen acts of
violenceto a systematic campaig of genocidepromotedand executedby
the Serbianand Montenegran Governmen and its agentsin the Republicof
Bosnia andHerzegovina.Dr. Karadzic,an agent supported by th Republic
of Serbiaand Montenegroin our country,has said thatMuslims and Serbs
are likecatsand dogs - they cannotlivetogether. The promotionof the
politicsof ethnicpurityin factis a toolof thisgenocide. Whats
unfortunatein factis thatthisCourtis being used by individual lske
Mr. Miticand Mr. Lopicicto promoteso-calledevidence unsubstantiated
and frequentlyfabricated regardin crimes againstSerbsbut in factalso
to promote and fuetlhe firesof ethnichatred and fascis thatare now
the basis for the crim of genocidein the Republicof Bosniaand
Herzegovina. Thankyou, yourHonours,may 1 now introduce ProfessorBoyle who
will continuewith the Replyon behalfof the Republicof Bosnia and
Herzegovina.1 againask foryour kind understanding.
The PRESIDENT: Thankyou Mr. Sacirbey. ProfessorBoyle.
Mr. BOYLE: Mr. President,distinguishedMembersof the
InternationalCourt,may it pleasethe Court, first at this time1 wish
to reserveOur rightto respondin writingto the two question posed by
Judge Bola Ajibolaand also byJudgeLauterpacht. Obviouslytheyare
complicated questions aw ndwill do Our best tohave a writtenresponse,
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withinthe time-frame indicated,by sometime tomorro worning.
Mr. President,in your introductory commentyou mentionedthat
sincethe filingof Our secondrequeston 27July 1 transmitteda
considerablenumberof communication snd documents tothe Court. Maybe
1 should givean explanationas to this wayof proceeding. 1 mentioned
that communicatinwgith my Govemment in Sarajevois seriouslytroubled,
if notalmost impossible, becauseof the ongoingillegalcriminalacts
being perpetrated b the Respondenton a dailybasis. Basically there is
a satellitephone and that is it. That is the only wayyou can
communicate,1 can communicate,with Sarajevo.
It is also a matterof publicrecordthatsoon after1 filedthe
request for provisional measuw resh the Courtin The Hagueon
27 July 1993,1 travelledto Genevato adviseOur Presidentand Foreign
Ministeron mattersof international law relatingto the very existence
of out Stateand Our membership, continuinrightto membershipin the
UnitedNationsOrganization.This fact canbe verifiedby referenceto
my communicationosf 6 and7 August among others to the Court. Due to
the gravityof the situation inGeneva,1 wouldbe the firstto admitthat my communications to the Court after 27 Julywere notthe models of
elegance, clarity, an precisionthat 1would have preferred. But they
were the best 1 coulddo under some very difficult circumstances.
Be that as it may, it was alwaysmy intentionthat al1 the
communications 1 have filedwith the Court since 27 Julywere intendedat
the time of filingto be submitted in support o ofut second requestfor
provisionalmeasuresof 27 July and 1 hereby firmlyreassertthat
intention and most respectfully requt estCourt to consideral1 of my
communications after 2 July to be consideredin supportof Our second
requestfor provisionalmeasures.This way of proceedingis fully consisten tith and supportedby
Article 74, paragraph3, of the Rulesof Courtwhichprovides: "...The
Court shall receiveand take intoaccount any observationsthatmay
be presentedto it before the closuro ef the oralproceedings."
(Emphasisadded.) Al1 my communication and submissionssince 27 July
clearlyfa11withinthe termsof thisprovisionand should be fullyand
completely takenintoaccountby the Courtwhen you retireto deliberate
on Our second requestfor provisionalmeasures. It shouldalso include
Our recent memoranduomn establishingthe imputabilito yf the Respondent
for theconduct of Serb military,paramilitary and militiaforces in
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Bosniaand Herzegovina in direct violatioonf provisional measure 2)
of 8 April 1993. As we heard this morning, the Respondent contin toous
deny their responsibility for this behaviourup euntiltoday. So, of
course,we need a memorandum on thatmatter.
As for Our memorandumon Articles8 and 9 of the Genocide
Convention, Responden has continued tocontestthoseissuesof
jurisdiction as well. Againwe are seeking to clarifytheseweighty
issuesof jurisdictionfor the Court as soon paosssiblein the best
mannerwe can.
Now, 1want to get into the second point raisedPr byfessor
Rosenne,that somehow the fact thatwe have already succeedeidnmaking
one requestfor provisional measure shouldprecludeus frommakinga
successive request, if the circumstas ncewarrant.
Well, first thereis no provisionwithinthe Statuteor theRulesof
Courtthatpreventsus from makinga separatesecondrequest.
Article41 of the Statutedoesnot in any way limitthenumberor
extentof measures which can be granted,nor does it statethat onlyonerequestis permissible; these of the word "any" enforcesthis
conclusion.
Article41 prefacesthe grantingof measuresupon the circumstances
of the situationpresented to the Court. Clearly,upon a change of
circumstances, the Court is entitledto considerthe situation yet once
again. And in Our secondrequestas amendedand supplemented we have
established, 1 believeconclusively, beyon d reasonable doubt, that the
situationhas definitivelychanged. The Court Orderhas been violated
from the momentit has been issued. The SecurityCouncilhas done
nothingto enforceit. On 13 May 1993 the Respondent itsela fnd its
Agents openly and publicly admitit and endorseand improve thiscampaign
of genocide and many of to heher facts andarguments that we have
adducedduring the course oftheseproceedings. So, the doctrineof res
judicata is not applicable where ther es a materialchange in
circumstances, anw de submit that thatsupports Our second requestfor
provisionalmeasures. Indeed, I want toassureycu 1 just did not file
the requestbecause1 had nothing better to do. 1am not getting paid
here for representingBosnia,it is a pro bon0 case. 1 came here on
the instructionsof my Governmentto preventthe partitionof the State
of Bosnia, and 1 am not here to takeup your time as a publicitystunt or
propaganda stunt or anythil ngke that. This is a seriouslegal issue.
There are peoplegoing to getaway with partitioningus and dividingus
and exterminatinugs and are eliminating Our membershipin the
UnitedNationsOrganization. That is the issue the Judges aregoing to
have to face in this case.
So, clearly, 1 believe,as long as therehas beena change in
circumstances, ant dhere has,and ifyou read Our second request,it is
very clear that the plan to partitionus was reallywhat set things inmotion. This is further supported by the fact that Article75,
paragraph3, of the Rules of Court allowsa partywhose request for the
indication of provisional measures ha been rejected,to make a fresh
requestin the same case, if it is "basedon new facts". Well, it seems
to me that if you make a request andyou lose andthe Rules Say that you
can go back in again if there are fresh facts,certainly if you make a
request andyou win, the other side pays no attentionto the Judgment,
ups theante the SecurityCouncilrefuses toenforcethe Judgment, the
situationgets far worse and thenwe are being threatenedwith having Our
lives as an independent State anU dN Member extinguishedt ,hen of course i
where else can we go forreliefbut to the WorldCourt? And thatis
exactly whatwe did.
Furthermore,on the proprio motu point,we believethat the power
conferredupon the Court under Article75, paragraph1, of the Rules
enablesit to grantmeasures proprio motu and 1 was a bit surprised
that ProfessorRosenne'sargumentthat for you to grantthe provisional
measures proprio motu would be ultra vires your powers. Now as an
advocate 1 do not think 1 want to be onetellingthe International Court
of Justicethat the application o your own Rules is going tobe beyond
your own powers. 1 have a jurisprudential proble with that, 1 couldsee
that with some lower court, but not the InternationaC lourt of Justice.
So, againwe submit that achangeof circumstances, and in Our case
a fundamentalchange,not justfresh facts, a fundamental change in
circumstancesthat would materially extinguiu sh as a State and asa
people, is what precipitated our request foa r new round ofprovisional
measures.
Finally, wesubmit thatthe circumstances of this case involving
genocide areso grave and so seriousthat unless the situationis keptunder activereview bythe Court, daily review ,he situation willand
indeedhas deteriorated significantly t toe pointwhere the exerciseof
substantive jurisdictionby the Courtin this casewill proveto be
impossible.Literallyimpossible. And we will beeliminated as a people
and as a State. Andagain, 1 have explainedto you the grave
difficulties 1have in beingable to get instructionsfrom my Govemment
to filea documentand cone overhere to addresstheseissues. 1 do not
know if 1 will beable to do thisagain. Not due to any lack orfaulton
Our own,but due to whatthe Respondentis doing tous on a day-in and
day-out basis.And if you do notadoptsome regimepropriomotu to
keep thiscase underactive control and review,you will seeus slowly
destroyedand eliminated righ bteforeyour eyes. Just whathappenedto
the Jewishpeople from 1939-45. That is exactlywhat is being
contemplated fotrhe peopleof Bosnia and Herzegovina andthe only
differencebetweenus and the Jews is Our UN Membership,our UN
Statehood, and the only peop wheo can really protecthat are the
Membersof this Court. As we know the SecurityCouncilis a political
body, theydo notdecidein accordance with the rule of law, they decide
mattersin accordance with realpolitik,great power politics, an that
is exactlywhat we have seen. Disagreements amongthe great powerwshen
it comesto how to deal to protectBosniaand Herzegovina.So, whatwe
are lookingfor here,is a legal resolutioo nf the dispute. We believe
that our causeis just and thatany fair-mindedo ,bjectivejudge,that
would lookat Our case,wouldagreewith us. May be nota hundred
percent,but on most of the issues. Now, this getsto the problem raise by Professor Rosenne, both
orally andin writing, about Article59 of the Statuteof the Court.
Now,with thesemeasures are they intendedto be bindingupon third party
States that arn eot parties to thisitigation.And the answeris no.
Indeed1 drafted them expresslyfor thatpurposeto make it clearthat
they wouldnot bebindingon third party States.
The measuresin Article 1 of the Genocide Convention obliage1
Contracting Parties t takestepsto prevent and to punishthe commission
of actsof genocide. We al1 agreeon that. And thereis a reciprocal
natureof the treatyobligations, undercertainlythe Genocide
Convention, meaning that t obligationsupon one Contracting Party
confera correlative rightupon al1 the ContractinPgarties to the
Convention that requirt ese obligationsto be fulfilled.
What setsgenocide apart fromal1 the other treatiesthatwe are
familiarwith is that, aswe know,the Convention entailsan obligation
to prevent and punish genocide whichs erga ornesand thereforeof
supreme importance to use the famouslanguage of the Barcelona
Tractioncase. Again,this is reinforced by thefact that the very
first Article otfhe Convention state thatContracting Parties havean
obligation to preventand punishthe crimeof genocideand these
obligations are erga omnee s,eryone againsatl1 States. And thatsets
the Genocide Convention apart fa romostany other treattyhatyou dealt
with herein the Court,exceptperhapstheUnited Nations Charte itself.
So, becauseof the supreme importanc ef the Genocide Convention,
becauseit establishes obligations erga omnes, the has to be a way
whereby rightsunderthe Treatycan be clarifiedin a situationsuchas
Bosnia andHerzegovina. We haveseenOur rightsput up to the highest
bidderin the Security Council. 1 have beentheremyself. 1 have seenit happen. So, we are not goingto get our rightsprotected at the
Council, 1 can assureyou of that. We will be carvedup by the great
Powersand eaten for breakfast unless t Chourtacts. So, we are coming
here to the Court to askyou to clarify -not decide,but to clarify -
what areOur rightsundertheseunique circumstance invokingStatute
Article41, provisional measures whichyou can do. You can adoptany
provisional measure you want. We are not askingfor an advisory
opinion, nor are we askingyou to orderany other State to do anything.
What theotherContracting Partiesto the GenocideConvention do or do
not do isup to them. Right?
But we believethat if the Courtclarifies our right under
Article1, then the obligation will beundeniablefor the othermembers
of theUnitedNations,and especiallo yf the Security Councilt,hatthey
must actto prevent genocida es requiredby Article1. And, as1 said
before,1 believeit ia the casetoday that 12 Members, at least of the
Security Councia lre likewisePartiesto the GenocideConvention.So we
believethata clarification of our rightsunderthesecircumstances by
the Courtin provisional measures woug ld a longway to help stopping
the genocide in Bosniaand Herzegovina.
True,we arenot askingfor afinaljudgment,as Professor Rosenne
said. If you read through our Applicatioy n,u will seewe have asked
for monetary damages. We al1 know thatwill be manyyearsdown the line,
if we get there,and Professor Rosennk eept insistingupon following
the proper procedure, fili the right document. Well,that is great,
whenyou are there murdering and killingthemen, womenand childrenon
the otherside and thenyou insiston the proper procedura end Say come
back a year fromnow. And then,you know,we mightlook intoyourdocument. This is not what is happening. We are beingwipedout right
therein frontof your eyes on TV,you can read it in the pagesof your
newspapers,and we areaskingthisCourt todo something aboutit.
So, again,1 arguethatwe are not askingyou to issuean orderhere
that is goingto bindanyoneexcept the Partiesto this casewhichwould
be the caseunderthe Statute. But we are askingfor clarificatioof
Our rights whichwe can thenuse in the Security Counclnd the
GeneralAssemblyand elsewhere topreventthe crimeof genocideagainst
Our people.
Now, let us lookat it anotherway. Supposeyou still haveproblems -
with thisargument. You say but they stilaren'tpartiesto the
litigation.Well, whatwould myresponsebe? My responsewould be to
tell my Govemment, fine. Then 1will sue al1 100-plusPartiesto the
GenocideConvention. And younow frommy letterof accreditatio1 have
the powerto do it. 1 don'thave the instructionsbut1 have the power.
Now thinkof that fora minute. 1 have a word processorand a
computerand a secretaryand largenumbersof students who arweillingto
crankout applicationfsorme. Now, doyou realistically wanm te to have
to go back homeand startcrankingout three or four applicationsday
until 1have sued 102 or 103 Statesand dragged thal1 in thisCourt
and accusethemof failureto prevent genocideunderArticle I? And for
many of them, conspiracyo commit genocidenderArticle III and
complicityto commitgenocideunderArticle III?
1have a verygood case
against mostof them for that.
But you couldimagine whatit might look
like. We wouldhave to hold theseproceedingsin a football stadiumnd
not in this PeacePalaceif you are tellingme1 have to sue
100-105 Statesand make theml1 partiesto this lawsuit beforyou are
goingto get intothe question of Articl1. Now that,1 believe,is what is at stakeherewith respectto this
obligationerga ornes. It seemsto me thatwhenwe are dealing wita h
treaty such as the Genocide Conventi-na sacredConvention:we would
al1 agreewith that; oneof the foundation-stono es the post-World
War II era; it underpinsthe entireinternationahlumanrightstreaty
régime thatwe know of- whenwe are dealingwith a treatyof thatnature
we shouldbe able tocorneto this Courtand basically litigatteose
issues that neetdo be litigatewithout necessarily havit ngjoinal1
the Partiesto the GenocideConvention.
As you knowwe have notmade claimsunderal1 Articlesof the
GenocideConvention.We have only madethoseclaims where we believewe
have sufficienctredibleevidence.We arenot takinga shotgun approach
here. We are acting,we think,on thebasisof evidencein the public
record thatwe have been ableto obtain through objectiveutsideneutral
sources,which is unlike whatyou have hearhere from theRespondent
manufacturedby theirownwar criminals.They admit, tha ermed and
commando units there tofe Republicof Srpska,whosePresident,
Radovan Karadzic,is acknowledgeas a major internationawar criminal.
That is wheretheyare getting theiervidence. So, again,you should
certainlyrejecttheir requesf torprovisional measures. 1 just wanted to comment briefly,since it came up, on the so-called
8 June 1992 letter. Again, 1 know you thinkyou have heard enoughof it,
but we did not fully address theissue the last time aroundbecauseit
did not corneto Our attentionuntil shortly before 1 introducedit into
evidence.
On 24 August 1993 the Respondenttook an amazingnew positionon the
They now are willing to accept thatit exists,that it might
letter.
have some consequences one waoyr the other,but they are saying: you
reallycannottake us seriously,you cannottake it at Our word. The
letter, they Say, does not reflectthe legal positionof the Federal
Republicof Yugoslaviabecausethe two Presidents of Serbiaand
Montenegrowho signed the letterwere notentitledto do so. So
according to the arguments madeby the Respondentt ,he Presidentof
Serbiaand the President of Montenegr oasicallyacted beyondthe scope
of their authoritywhen they signedthese letters tothe Badinter
ConmiissionL,ord Carrington,etc., etc. Well again,as an advocate, 1
would have a hard time sayingthat my bossesactedbeyond the scope of
their authority,especiallyif one of my bosseswas Mr. Milosevic. But
that apparently is what theyare preparedto say.
But the two Presidentsstated in an officia1public letterprinted
on the letterhead of the Federal Reublic of Yugoslaviia the language
that 1 have quotedbefore: "the Federal Republic of Yugoslaviatakes the
position". Well, certainly this new argument,which 1 find to be
extraordinary,is consistentwith the Respondent'sattitudetakenal1
along to any officialdocument. They donot take seriouslythe
United NationsCharter; thLondonAgreement,resolutions of the
SecurityCouncil,the GeneralAssembly,they do not takeseriously; the
GenocideConvention,they do not take seriously; this Court'sOrder of8 April,theydo not takeseriously; and so on. So 1 ask the Courtthe
question: how canyou take anything they tey lolu seriouslwhen they
won't evenstandby theirown letterssigned by theio rwn Presidents?
How canyou attributeany credibility a tl1 to anythingthey tellyou
abouttheirso-calledevidence in supportof their request against us?
Professor Rosenndeevoted a gooddealof timeto the 1919 Treaty of
Saint-Germainin hiswrittenobservations and alsohis oral
observations.And we knowhe says,why didwe not pleadit firstin the
Application? Well theris no requirement thatou have to plead
everythingin theApplication.You do yourbest and underthe
circumstancesof genocidethatwas goingon at that time, 1 did my best
in draftingthatApplication in ted nays,and clearly genocidteo me
seemedto be the wayto go to get the jurisdictionof the Court
straightaway. Buas we made clear inthatApplication,we fully
intended to argui en brief othequestionsof jurisdictionas wewent
along, andthatmemorandumon thatTreatywas filedshortly after it was
produced.
Now if you lookat the argument,it is kind of sillyisn'tit.
pickingtechnical littll eawyers'scriveners'points. The Treatyis in
two chapters:the first protects minorities,the secondrefersto
continuityof treaties.
It is clear fromArticle16 that it appliesto theentireTreatyas
a whole,not merely thesecond chapter. Article16 containsprovisions
on the officia1languageof the Treatyand on the procedurefor
ratification.Theseare obviously mattert shatrelateto theentire
Treaty. Also paragraph1 of Article 16 cover"sal1rightsand privileges
affordedby the foregoing Articles and Article11 isa foregoing
Article. 1 submitthathad the parties intendt edlimit thistoChapter IIonly, they coulh dave written"al1rightsand privileges
accorded by the Articlesof thisChapter", whichof coursethey didnot
do.
So ft seemsto me one should assume from the reasonable ordinary
languageof this Treaty"the foregoing"refersto al1 previous Articles
of the Treaty,and indeedthe ViennaConvention, Articl3 e1, says,"a
treatyis to be interpreted in lightof its objectand purpose". And
certainlythe primaryobjectand purposeof thisTreatywas to protect
minoritiesand partciularlM yuslims. That is what the Treatsays.
In reservations tothe Conventionon the PreventionandPunishment
J
of the Crimeof Genocide,theAdvisoryOpinion of this Court, page23,
the Court indicate that atreatywith a "humanitarian anc divilizing
purpose"shouldin particular be interpretedto achievethe purpose. And
1 am not sayingthat thisTreatyis todayas importantas the
GenocideConvention, but it was certainlya very significant breakthrough
for the protectionof humanrightsas group rights back in 1919.
The Respondentthenarguesthatthe Serb-Croat-Sloven Treaty has
"disappearedas part of theVersaillessystem". Well maybethe
Versaillessystem disappeare but theTreatydid not. The Treatyis
stillthere. No eventhas occurredto affect its validity. Indeed,the W
language quoted btyhe Respondentfrom the Vice-Presideo nt the Court,
Judge Oda,doesnot refer specificall yo theTreatyitselfbut to the
post-WorldWar 1 Minoritiestreaty régimeas a group. And the
United NationsSecretariat madeit clearin its Studyof thesetreaties
that thequestionof the validityof each treaty must be examined
individuallyno matterwhat happenedto the so-called régimeor
Versaillessystem, orcal1 it whatyou want. The Respondentthenarguesthat the1950United Nations Secretariat
Studyof the LegalValidityof the UndertakingsconcemingMinorities
doesnot supportthe proposition that theSerb-Croat-Sloven Treatyis
stillin force. But thfeactagainthat thesystemno longerexistedhas
no relevanceto the questionof the continuingvalidityof the Treaty
itself,this particular minorit tyeaty.
Then the Responde~trefersto the Study'sreferenceto those
minoritiesthat assisted Yugoslavia's enea miessuggestedthat the
'lMuslirmeligiousminority"was one of thoseminorities.First,the
Studydid not specifyany particular minorities So thereis no reason
to believethatthe Secretariat was referringto the"Muslimreligious
minority". Also personallyam not awareof any evidencethatwould
supportthe Respondent's factualclaimthatBosnianMuslimsassistedthe
formerYugoslavls enemiesduringthe Second WorldWar. But againthis
issue is not relevantas a basisfor theterminationof a treaty.
Then the Respondenquotesa 1951memorandum of the United Nations
Secretariat whereit statedwith referencteo the 1950Studythatthe
Secretariat'sopinionthat "theminorities system ha ceasedto existwas
not basedsolelyon the ground ofthe League's extinction".But again
thislanguage refert so the system, namelythe enforcementsystem,and
not to the treaty obligations themselvT es.Secretariat madneo
blanketstatementthatal1minoritytreaties were invalid.
Moreover,we cited theSecretariatStudy onlyas confirmationof the
contemporary validitoyf the Serb-Croat-Slovene TreatEyven if the
Studywas not validas of 1950, this wouldnot be definitive.Treaties
remainedin force, pactassuntservanda, untilactions specifiei dn the
ViennaConvention on the Law of Treatiesoccur.And even theUnited Nations Secretary-Generaldoes not have the authority
to terminate treaties in force; thatis the job of this Court,not the
UN Secretariat. Again, the Respondentobjectsto Our contentionthat the
United NationsassumedLeague functions regardingthe MinorityTreaties
but the Respondentis silenton the language quoteb dy us from the
Secretariat's1950 Study. There, it stated thatthe UnitedNationsdid
assumeLeague functions under theseTreatiesand specifically that
United Nationsorgans wouldconsidercornplaintb sy minoritiesof
violationof their rightsunder these treaties. Again, the Respondent
challenges our reference toa Sixth Committeediscussionin 1953,where *
the United Kingdomdelegateindicatedthat League functionsunder another
treaty,the SlaveryConvention,had automatically passed to the
UnitedNations. The Respondent quotesan entireparagraphfrom theSixth
Committeediscussionand Statesthat nothing in that text supports Our
position.
But the issue in the paragraph quoteby the Respondent wasthat of
whether thenew instrument, referre do thereas a protocol, neededto be
adoptedto transferLeague functionsto theUnited Nations.The
United Kingdomdelegatesaid thatno such protocolwas neededbecause
such a transferhad alreadyoccurred automatically. So, in fact, the
quoted language supports the propositf ionwhichwe cited it.
The Respondent finally argue that there is no analogy between the
United Nations assumptio of the League'smandatefunctionand the
assumptionof the League'sminority protectiof nunction. The Respondent
says that the LeagueAssembly madeprovisionfor the future ofthe
mandatesbut not for the future of minorit protection. But this is
factuallyincorrect. By its resolutionof 18April 1946, the LeagueofNations Assemblayccepted theUnited Nations Genera Assembly'sproposal
as reflectedin resolution 24(I) to assume thLeague'sminority
protectionfunction.
The Respondent argueosur referencesto theViennaConvention are
inappropriate, but the provisio ofntheVienna Conventioa nre widely
takenas reflecting customary internationl alw as.detenninebdy this
Courtitself. The Respondent arguet shatthe 1919 Treaty was "terminated
by mutualinforma1agreementof the parties". Wellno such concept
existsin the Law of Treaties or intheViennaConvention as "mutual
informalagreement" to terminaa tetreaty, especiall yne protecting
minorities, a humanrightstreaty. The Respondentthen takes the
preposterous positio that the1919 Treatywas somehowsuperseded by the
International Covenan on Civiland PoliticalRights. Well,the
International Covenantprovidesprotectionsfor individualsi ,t doesnot
providefor the group rightsaffordedby the 1919Treaty. But thatdoes
not mean that thelaterTreatyat al1 eitkierintendedto, or was intended
to, supervenethe earlierTreaty.
Finally,the RespondentclaimsthattheMuslimsof
Bosnia-Herzegovina lot steir statusas a religiousminority after
WorldWar 11, becoming insteaan ethnicminority. Now thinkof that,
the Respondenthas admittedin an officia1Courtdocumentthat theystole
the religion fromthesepeople,theirreligious identit -ygo back and
read this document- they admit thedyeprivedthemof their religious
identityas Muslimsand said: well,now you onlyhave an ethnic
identity, andsomehowtheyare askingyou, this Court, to acceptthat
theftand robbery of theirrelgiousidentityas somehow valid,either
undertheirown law orinternational law. Well again,as theMuslims'Ambassador Sacirbe pointedout, it alwaysremaineda group defined in
partbut not exclusively by their religion.That is why many ofthemare
beingkilledtoday.
Next the Respondent argut esat the 191Treatyappliesonly to the
territoryof Serbia and Montenegrobut the Treatywas intended toprotect
Bosnian Muslims,that is the objectand the purposeof the Treaty,and it
contained detailed provisio fnor the protectioof Muslins. This is a
Treatyof a humanitariancharacter,it is notlimited to territory,
so as to make its guaranteeto people meaningless. The Treatyapplied
to the people,protecting thew mas theobjectand purposeof the Treaty
w
and thesepeopleare stillthere,despitethe fact that th Respondentis
wipingthemout and killing them everyday and has killed200,000,raped
1
30,000-40,000 an driven 2-2 /2millionfrom their homes. Again,
figuresare imprecisefor obviousreasons.
Now, ProfessorRosennelsfinalpointwas that the invocation o the
1919Treaty somehow magically transform the jurisdictional basisf this
Courtto hear the case,and this is ridiculous.The Courtwill recall
that in provisional measurA(2) of 8 April 1993, the Courordered by
13 votesto 1
"TheGovemment of the FederalRepublicof Yugoslavia
(Serbia andMontenegro) shoul dn particularensurethat any
military,paramilitaryor irregular armeudnits whichmay be
directed or supporteby it, as well as anyorganizationsand
personswhich may besubjectto its control, directionor
influence, donot commit anyactsof genocide,of conspiracy to
commitgenocide,of directand public incitement to commit
genocide,or of complicityin genocide, whether directed
against the Muslim populati ofnBosniaand Herzegovina..."
Now the Courtwill remember,as pointed out by JudgTarassov,that
1 never specificallyrequested the Courto protectthe Muslimpopulation
of Bosniaand Herzegovinaby name. Nevertheless, underthe monstrous
circumstancesof ongoing genocide against BosnM ianlims bytheRespondent, the Court felt compellteodprotect Bosnian Muslims
specificallyby name in provisional measurA(2) of its Orderof 8 April
and of course the Court rights lyactedby protecting BosnianMuslims.
As 1 have pointedout,however,they arenot the only oneswho are
victimsof genocidein Bosniaand Herzegovina.We haveMuslims,
Christians,Jews,Croats, Serbs - anyone whotriesto maintainand assert
theirBosniancitizenship is being killedfor thisreason.
Well, ifthe Court alread has jurisdictionto protectBosnian
Muslims underthe Genocide Conventiot n,en the Court should alshave
jurisdictionto protect thesameBosnian Muslims underthe 1919 Treaty of
Saint-Germain.So, Our invocation of the 1919Treatywas intended to
supplement, expand andamendthe jurisdictionwhichwe believethe Court
alreadyhas. We shouldalsonote in thiscontext that the caseis not
based exclusively o the GenocideConvention.The fact that the Court
onlymentioned the Genocide Conventi ioits 8 AprilOrdercannot change
the initialbasisof Our claimsand, in paragraphs130 to 134 of our
Application it stated that thectsof genocidealso constitute
violationsof the fourGeneva Conventions (12 August1949),Additional
Protocol 1 (8 June 1977),the customarand conventional lawosf war,
including the Hague Regulatioa ns,fundamental principlesand rulesof
international humanitarian l and theUniversal Declaratio of Human
Rights and,as 1 have intimated,we will be providingwhenwe get to
submitting the Memoria to the Court,as of on orabout15 October,more
detailon the rest of Our jurisdictional claimwith respectto these
points.But if we do not get Our provisional measures again1 am telling you it
is goingto be impossible for us to argueOur caseon the meritsto the
Court. We are simplynot goingto be able to do it.
Finally,we have compliedwith Article38, paragraph 2, of the Rules
of Procedure which state,and thissectionwas notquoted by
ProfessorRosenne
"TheApplication shallspecifyas far as possiblethe
legal grounds upon whichthe jurisdictionof the Court is said
to be based."
We, in Our Application, specifie as far as possibluenderthe
circumstances of ongoing genocide wha we thoughtjurisdiction was. We
I
did the best job we coulddo underterrible circumstancew s,th very
limited amounts of time,and that is exactlywhatwe are stilldoing
today. We are askingthe Courtto assistus here to presentOur claims,
to allowus to argue Our claims,to allowus to exerciseOur rightsunder
the Statute,the Charterand the Rulesof Court. And finally, we have
the Court'srulingin the Nicaragua case, paragraph80, "TheCourt
considersthat the fact tha the 1956 Treatwyas not involved in the
Application as a titleof jurisdiction doesnot in itself constitute a
bar to reliance being placed upoint in theMemorial."
Well,we thinkthe sameshould apply when it comesto a second round 1
of provisional measures. If not for the developmentssince8 Aprilwe
wouldhave continued going righ ahead toprepare Our Memorial. But
somewherein June we figured out the planwas to carveus up into three
independent Statesand rob us of Our UN membershipand at that poin1 t
received instruction to startpreparing another roundpo rovisional
measures. Now this is whathappened. One finalpointwe did want to makeabout resolutio7 n13 and the
otherresolutions following it - and thisagainis becauseit was brought
up by the otherside thismorning - that is if you read resolutio713
and its successors you will see thatthereis a difference.We have
alreadypointedout 713 applies only to theformerYugoslavia whichno
longer existsand 713 does indeedcontaina paragraph explicitl adopted
underChapter7 of the Charter. The enforcement of security measures,
enforcing measures bythe Security Council,is a seriousmatter - very
serious - and in the case ofBosniaand Herzegovina we are dealingwith
one of Our most fundamental righo ts al1- the rightof selfdefence.
And yet somehowwe werenevereven given a hearingon this - werewe?
Wherewas the due processof lawhere. In comparison evenan aggressor
State is givena hearingand a chance to change its policy befot ree
actionof sanctions. For examplethe case in Iraqor even the adoption
of sanctionsagainstthe Respondent. They were given a threat,theyhad
a hearingand finally sanction seretaken. But for us, thesesanctions
were imposed illegally even befo weecameintoexistenceand we never
had a hearing,theywere just extendedand alsonot on the basisof
Chapter7 of the Charter. Go back and readthe appropriate Articles,
particularly theones1 citedyesterday - resolution 727 is the crucial
one - and thereis no invocation of Chapter7 to be foundin this
resolution.It is not in it. So it is purelyoratory,and indeedas 1
suggestedyesterday,the reasonthatresolution 727was adoptedwas
simplyto giveMr. Vancesome negotiating leverag e,d thatis it. With
al1 due respectto Mr.Vance,1 am not herecriticizing Mr. Vance. He
triedthe besthe could,but he was a gentleman dealinw gith a groupof
criminals,so of coursehe couldnot get too far. So pleasewhenyou are
looking attheseresolutions, pay particular attention,as 1 triedto doyesterday,to 727 which is said to applyto us; but ifyou read it it
doesnot. It was never adoptedunderChapter7, so we are not askingthe
Courtto orderor strikedown a Security Council resoluti orn anything
like that. Again simply give a straightout clarificationof what are
Our legal rightsunderthe Genocide Conventio with respectto the UN
Charter. That is al1 we are askingyou to do and we are acceptingyour
frameworkof reference withinthe termsof the Genocide Convention
itself,particularly Article 1 thereof.
This really bringsto an end the comments1 wantedto make this
afternoon. But1wouldbe remiss in my dutiesif 1were not to set the
w
recordstraighton the so-calledPeace Conferencw eith respectto Bosnia
and Herzegovina.
The PRESIDENT: Professor Boyle , do not want to interruptyou but
we are runningagainsttimeand ifwe go on much longerwe shallbe
trespassing upon the time availablefor theRespondentto reply,and
there is also a questionto beasked.
Mr. BOYLE: That'sfine.
The PRESIDENT: ProfessorBoyle1 was not askingyou to cease
1
immediately.There is one thing 1 thinkyou mightmake clear,afteral1
the amendmentsand so on, the Court wouldlike to knowwhat is the final
positionof Bosnia. Am 1 right insupposingthat in fact, as1 thinkyou
indicatedin your discussion yesterday,thatyou are stillfinallyasking
for eachand everyone of then ten provisionam leasuresyou askedfor, as
set out in your fihstapplicationof 27 July. I
ProfessorBOYLE: Yes. JudgeSCHWEBEL: Thankyou,Mr. President.
1 shouldliketo ask the followinq guestionsof the Agentof the
Republicof Bosnia and Herzegovina ai ndaskingthesequestions 1 wish
to make clearthat1 expressno opinionon themerits orde-meritsof
proposals emanating frt ome Geneva negotiation or on the circumstances
surrounding thosenegotiations.
The Genocide Conventiondefinesgenocideas actscommitted with the
intentto destroy, in whole or inpart, anational,ethnical, raciao lr
religious groubpy killing membersof the groupcausingseriousbodily or
mental harmto the members of the group andrelated grave delictual
acts. In view of the arguments of theAgentof the Republic of Bosnia
and Herzegovina two questionsarise.
1. Supposearguendo thatthe resultof the Genevanegotiations is
agreementamongal1 partiesto replacethe current constitutional
structureof the Republic of Bosniaand Herzegovinawith another
constitutionas ltructure: is the lifeof the current constitutional
structureof the Republic of Bosniaand Herzegovinato be equatedwith
the lifeof membersof a national,ethnical, raciao lr religiousgroup?
2. Supposearguendo that theresultof the Genevanegotiations is
to reconstitutethe Republicof Bosniaand Herzegovina as three
constituent Republics- Muslim, Serband Croatian,will sucha
re-constitutioo nf itselfbe tantamountto genocide?
Thankyou Mr. President.
The PRESIDENT: Thankyou very much. This is an impromptu question
in i.onghand.Perhaps ve can promisethat the twoParties will have the
question, typeda,s soonas possible. But wouldyou like to replyto it
now? Mr. BOYLE: On your firstquestion,JudgeSchwebel. We went to Geneva
and 1 was there forthe timeon the basisof a mandatethatwas fromthe EEC
and United NationsSecurity Council resolutions demand that the territorial
integrity and the political independo enBosnia-Herzegovina wou ld
preserved. What we foundout whenwe got thereand we read thedocuments
'
which 1 did formy President,andyou have myreportin your file,was thatin
fact the document were draftedon the assumptionthatwe wouldbe carvedup
intothreeindependent States. Andas the LegalAdviserto the International
Conference on the former YugoslaviChairmanadmittedthiswould create severe
continuity problernsor us at theUnited NationsOrganization.Now on the
-
basisof instructions 1 had received fromy President andmy
Foreign Minister,1 rejectedthisand tableda counter-proposa1 baso edthe
assumption thatwe wouldbe havingan interna1reorganizatioinnto
three constituent republi bust oneunified Statethatwould continueour
UnitedNationsmembership. Andhen 1 tabledthatcounter-offer to the
InternationalConference on the formerYugoslavia lawyer was basically
threatened at United Nations Headquari teGeneva,not personally,but on
behalfof the State. 1 was told that if we did not accept the
Owen-StoltenberPglan exactlythe way itwas drafted "theSecurityCouncil
will tellyou to go to hell". Now thatwas said to me, the GeneralAgentfor-
Bosniaand Herzegovina, and1 was therein thatcapacityand the lawyer
understoodthat,and 1 was told this in UnitedNationsHeadquarters.That is
where negotiationsstandtoday.
The Owen-StoltenberAggreement still callfor us to be carvedup into
threeindependent Statesand basically tocreate aseverecontinuity problem
4
for us at theUnitedNations. And we have officially rejectethatin letters
by PresidentIzetbegovic thathave beenon file atthe Security Councialnd
are on filewith thisCourt.
Now, as foryour second questionw,e have submittedand-
Professor Rosennmeade thispoint - maybe1 did not makeit clear,we are
0762c/CR93/35/T7/..sayingthatpartition, annexation is beingdoneby meansof genocide.
That is part of the plan. Now,you liquidate a peopla end you steal
theirlandand theirpossessions.The samethingwas done to the Jews in
Germany. Right. That is what is beingdone to us. The programmehere
is greaterSerbia. Take Our land andkill the people and move us out and
grab it and keep it. In my opinionthe intemal structural
reorganizatiot nhatyou suggestedis prettymuchwhat we proposedin our
counter-offer in Geneva. Add, again,instructionsof my President,1
wouldhave said,well,try to comeup witha reasonable compromih sere
thatwould continue our existen asea unifiedStateand a Memberof the
UnitedNationsbut would accept thenotionof an internalreorganization,
intemally and constitutionally on the basisof threeconstituent
units - one forMuslims, one for Croats, one foSrerbs. On the basisof
thoseinstructions 1 drafteda proposa1thatwas thensentout under
PresidentIzetbegovic'n same to the Co-ChairmenT.hat proposa1has yet
to be respondedto by the Co-Chairmen an it is on file atthe
Security Council,it is on filehere withthe Court. We acceptedthe
notionof an intemal reorganizatioi nntothree constituent unib tssed
on ethnicity,despitethe fact thaw te feltit was a bad thingto do
becauseit will leadto furtheracts ofgenocide,and here whatshould
cometo everyone's mind is Indiaand Pakistan. Rememberwhen the Indian
su-continentwas partitioned anhdow many people dieads a resultof
that. Andyesterday1 citedthe statistics by tho efficia1State
DepartmentStudythatwas at leastrecountedin the New York Times,
they estimated tha if thisinternal reorganizatit onatyou mention,
. .
thatlegally would keep our international personalit y,ep our
UnitedNationsmembership, nevertheless wouldsubjectanother
million-and-a-hal people ormore to actsof ethniccleansing. Our
peoplelivethereal1 intermingled everywhere.So if you Say: well,here is the MuslimState, hereis the Serb Stateand here is the Croat
State,you are goingto put 1-1 I/ millionpeopleon the move,and
2
even moredeathand destruction and killingand genocide.
So the quick answer to your question is yes, althoughit is the
positionof Our Govemment,we are prepared to acceptit becausethe
greatPowers havesaid to us: well, wewant you to do this. We have
accepted it in principle somewhat reluctant and 1 should point out that
just recently three United States Government high-levelofficialsin the
StateDepartment have resigned becausetheyknow full well what the
consequences will bi ef the so-calledinterna1reorganization is carried w
out.
1 hope that answersyour questionadequately.
The PRESIDENT: Thankyou verymuch,ProfessorBoyle. Now,when
wouldyou like usto return? Would it stillbe 5 o'clock or wouly dou
likeus to comeback at 5.10 p.m.?
Mr. ETINSKI: Mr. President,if you find it convenient, the timefor
a coffee break wilb le enough for the YugoslavParty.
The PRESIDENT: So that 5 o'clockwouldbe alright,would it?
Mr. ETINSKI: Well, 1 said the time fora coffeebreak - 15 to
30 minutes,no more.
The PRESIDENT: Thirty minutf esomnow?
Mr. ETINKSI: Yes.
The PRESIDENT: Quarterto five,shallwe say? Thankyou verymuch.
The Court adjourned from 4.15 to 4.45p.m.
0762c/CR93/35/T7/.. The PRESIDENT: Please beseated. Mr. Etinski.
Mr. ETINSKI: Mr. President, distinguished Membo ersthe Court,may
it please theCourt.
Reservingal1 rightsof objectionto the jurisdictionof the Court
and to the admissibilityof theApplication, anidn view ofthe contents
of the twowritten submissionsdated 9and 23 August1993,and the
statements of my distinguishecolleagues,1 wouldlike to presentthe
finalcomments.
In view of the claimof the ApplicanStateto base the jurisdiction
of the CourtunderArticlesXI and XVI of theTreaty between Alliedand
AssociatedPowersand theKingdomof Serbs,Croats and Slovenes signed
at Saint-Germain-en-Lay on 10 September1919,the FederalRepublicof
Yugoslaviaasks the Court
to reject thesaid claim,
- becausethe TreatybetweenAlliedandAssociated Powersand theKingdom
of Serbs, Croatsand Slovenessignedat Saint-Germain-en-Lao yne
10 September 1919is not inforce; and
- becausetheApplicant State is not entitledto invokethe jurisdiction
of the Court accordintgo ArticlesXIand XVI of the Treaty.
In view of the claiof the ApplicantState,the jurisdiction of the
Court is also groundedon the Customaryand Conventional International
Law of War and International HumanitarLian, including, butnot limited
to, the four Geneva Conventio ons1949, theirFirstAdditional Protocol
of 1977,and theHagueRegulations on LandWarfare of 1907,and the
Nuremberg Charter, Judgme antd Principlesthe FederalRepublicof
Yugoslaviaasks the Court
to rejectthe saidclaim,
- becauseit is contraryto Article36 of the Statuteof the Court. In view of the claim of the ApplicantStateto establishthe
jurisdiction of the Courton the basisof the letterof 8 June 1992,sent
by the Presidents of the two Yugoslav Republics, Serba inad Montenegro
(Mr.SlobodanMilosevic)and Mr. Momir Bulatovic to the Presidentof the
+.
Arbitration Commissio of the Conference on Yugoslavia, the Federal
Republicof Yugoslavia asks the Court a
to reject thesaid claim,
- becausethe declaration containedin the letterof 8 June 1992 cannot
be understood as a declaration of theFederalRepublicof Yugoslavia
accordingto rulesof international law,
- becausethe declaration was not inforceon 31 March 1993,or
- becausethe conditioncontained in the declaration is not fulfilled.
The FederalRepublicof Yugoslaviaasks the Court
to reject ail Provisional Measure requested by the Applicant State
becausethe Courthas no jurisdiction to indicatethem;
- becausethey are not foundedon the new legallyrelevant facts;
- becauseof the abuseof rightsof the request for provisional measures;
- becausetheywould cause irreparable prejudiceto the rightsof.the
FederalRepublicof Yugoslaviathat theso-calledRepublicof Bosnia
and Herzegovina fulfil its obligations under the Genocide Convention 'rr
concerningthe Serb people in Bosnia and Herzegovina;
- becausethey look to the pastnot to the future;
- becausetheymean an interimjudgment;
- becausethe qualification of the provisions of the Genocide Convention
cannot bethe subject-matter of the Provisional Measures; and
I
- becausethey are ill-founded on Article75, paragraph1, of the Rules
of Court. Wishingto protect its right by makingthe so-calleR depublicof
Bosniaand Herzegovina to fulfilal1 its obligations concernit nge
protection of the Serbethnicgroup according to the Genocide Convention,
the FederalRepublicof Yugoslavia askt she Courtto indicatethe
following ProvisionM alasure:
The Govemment of the so-calledRepublicof Bosnia-Herzegovina
should irnrnediatelin,pursuanceof its obligationunderthe Convention
on the Preventionand Punishrnenotf the Crimeof Genocideof
9 December1948,takeal1measureswithinitspowerto prevent commission
of the crime of genocide againstthe Serbethnicgroup.
Thankyou Mr. President.
The PRESIDENT:Thankyou. That is the end of the Yugoslavic aase?
Mr. ETINSKI: Yes.
The PRESIDENT:Verywell. So, we cometo the end of theseoral
proceedingswhich 1 now declareclosed,subjectto theusualcondition of
the Agents remaining availat blthe Courtif needed atsomejuncture.
The Courtwillnow proceedto deliberate itd secisionand thedateon
whichthe Orderwill bereadout in Courtwill benotifiedto the Parties
in due course. Thankyou verymuch.
TheCourt rose at 5.00p.m.
Public sitting held on Thursday 26 August 1993, at 3 p.m., at the Peace Palace, President Sir Robert Jennings presiding