Public sitting held on Thursday 22 April 2004, at 11.15 a.m., at the Peace Palace, President Shi presiding

CR 2004/17

International Court Cour internationale

of Justice de Justice

THE HAGUE LA HAYE

YEAR 2004

Public sitting

held on Thursday 22 April 2004, at 11.15 a.m., at the Peace Palace,

President Shi presiding,

in the case concerning the Legality of Use of Force
(Serbia and Montenegro v. Canada)

________________

VERBATIM RECORD
________________

ANNÉE 2004

Audience publique

tenue le jeudi 22 avril 2004, à 11 h 15, au Palais de la Paix,

sous la présidence de M. Shi, président,

en l’affaire relative à la Licéité de l’emploi de la force
(Serbie et Monténégro c. Canada)

____________________

COMPTE RENDU

____________________ - 2 -

Present: President Shi
Vice-President Ranjeva

Judges Guillaume
Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek

Al-Khasawneh
Buergenthal
Elaraby
Owada
Tomka
Judge ad hoc Kreća

Registrar Couvreur

 - 3 -

Présents : Shi, président
M. Ranjeva, vice-président

MM. Guillaume
Koroma
Vereshchetin
Mme Higgins
MM. Parra-Aranguren
Kooijmans
Rezek

Al-Khasawneh
Buergenthal
Elaraby
Owada
Tomka, juges
M. Kreća, juge ad hoc

M. Couvreur, greffier

 - 4 -

The Government of Serbia and Montenegro is represented by:

Mr. Tibor Varady, S.J.D. (Harvard), Chief Legal Adviser at the Ministry of Foreign Affairs of
Serbia and Montenegro, Professor of Law at the Central European University, Budapest and
Emory University, Atlanta;

as Agent, Counsel and Advocate;

Mr. Vladimir Djerić, LL.M. (Michigan), Adviser to the Minister for Foreign Affairs of Serbia and

Montenegro,

as Co-agent, Counsel and Advocate;

Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Chichele Professor of Public International Law (Emeritus),
University of Oxford, Member of the International Law Commission, member of the English
Bar, member of the Institut de droit international,

as Counsel and Advocate;

Mr. Slavoljub Carić, Counsellor, Embassy of Serbia and Montenegro, The Hague,

Mr. Saša Obradović, First Secretary, Embassy of Serbia and Montenegro, The Hague,

Mr. Vladimir Cvetković, Third Secretary, International Law Department, Ministry of Foreign
Affairs of Serbia and Montenegro,

Ms Marijana Santrač,

Ms Dina Dobrković,

as Assistants;

Mr. Vladimir Srećković, Ministry of Foreign Affairs,

as Technical Assistant.

The Government of Canada is represented by:

Ms Colleen Swords, Legal Adviser to the Department of Foreign Affairs,

as Agent;

Mr. David Sproule, Department of Foreign Affairs,

as Deputy Agent;

Mr. L. Alan Willis, Q.C.,

Ms Ruth Ozols Barr, Department of Justice,

as Counsel and Advocates;

Ms Laurie Wright, Department of Justice, - 5 -

Le Gouvernement de la Serbie et Monténégro est représenté par :

M. Tibor Varady, S.J.D. (Harvard), conseiller juridique principal au ministère des affaires
étrangères de la Serbie et Monténégro, professeur de droit à l’Université d’Europe centrale de
Budapest et à l’Université Emory d’Atlanta,

comme agent, conseil et avocat;

M. Vladimir Djerić, LL.M. (Michigan), conseiller du ministre des affaires étrangères de la Serbie et

Monténégro,

comme coagent, conseil et avocat;

M. Ian Brownlie, C.B.E., Q.C., F.B.A., professeur émérite de droit international public à
l’Université d’Oxford, ancien titulaire de la chaire Chichele, membre de la Commission du droit
international, membre du barreau d’Angleterre, membre de l’Institut de droit international,

comme conseil et avocat;

M. Slavoljub Carić, conseiller à l’ambassade de Serbie et Monténégro à La Haye,

M. Saša Obradović, premier secrétaire à l’ambassade de Serbie et Monténégro à La Haye,

M. Vladimir Cvetković, troisième secrétaire, département de droit international, ministère des
affaires étrangères de Serbie et Monténégro,

Mme Marijana Santrač, LL.B. M.A. (Université d’Europe centrale),

Mme Dina Dobrković, LL.B.,

comme assistants;

M. Vladimir Srećković, ministère des affaires étrangères de Serbie et Monténégro,

comme assistant technique.

Le Gouvernement du Canada est représenté par :

Mme Colleen Swords, conseiller juridique auprès du ministère des affaires étrangères,

comme agent;

M. David Sproule, ministère des affaires étrangères,

comme coagent;

M. L. Alan Willis, Q.C.,

Mme Ruth Ozols Barr, ministère de la justice,

comme conseils et avocats;

Mme Laurie Wright, ministère de la justice, - 6 -

Ms Sabine Nolke, Department of Foreign Affairs,

Ms Marie-Josée Rhéaume, Department of Foreign Affairs,

Ms Anik Beaudoin, Department of Justice,

as Counsel. - 7 -

Mme Sabine Nolke, ministère des affaires étrangères,

Mme Marie-Josée Rhéaume, ministère des affaires étrangères,

Mme Anik Beaudoin, ministère de la justice,

comme conseils. - 8 -

The PRESIDENT: Please be seated. I now give the floor to Ms Colleen Swords, Agent of

Canada.

Ms SWORDS: Mr. President, distinguished Members of the Court, it is an honour to appear

once again on behalf of the Government of Canada.

1. I will begin today with some preliminary comments on the continuing failure of the

Applicant to identify its grounds of jurisdiction. I will then address jurisdiction ratione temporis

under the optional clause, and the Applicant’s arguments on the Genocide Convention. Before

turning to this, however, one point: while today’s submissions are necessarily brief, Canada does

retain all of the arguments set out in some detail in its written Preliminary Objections.

P RELIMINARY COMMENTS

2. On the opening day of these hearings, we asked Serbia and Montenegro to clarify the

grounds of jurisdiction it now relies on for this case against Canada in light of its Written

Observations of 18 December 2002. After listening carefully to the Applicant’s submissions

yesterday, we still do not know the answer to our question.

3. Nothing in the Applicant’s oral pleading repudiated its Written Observations of

December 2002. Nothing filled the gaping hole at the heart of its case, namely its failure to assert

the basis of jurisdiction on which it seeks to rely. Nothing clarified what it considers to be the legal

consequences of its position on jurisdiction in this case arising from its Written Observations.

These were, I recall, that it was not and could not have been a party to the Statute of the Court by

way of United Nations membership in 1999 and that it was not bound by the Genocide Convention

when this case was filed.

4. Instead, the Applicant asked the Court to clarify whether it was a party to the Statute or

not. It then proceeded to argue what its position would be if the Court were to find that the

Applicant was a party to the Statute in 1999, contrary to the position of both the Applicant and the

Respondents.

5. This is extraordinary in light of the fundamental principle of consent to jurisdiction upon

which this Court operates. It would mean that a State is free to come to this Court saying: “We do - 9 -

not think we are party to the Statute of the Court, and neither does the Respondent, but in case you

disagree, let us know.” This cannot be in the interests of the sound administration of justice.

6. Mr. President, this is a contentious case, not a request for an advisory opinion. The

applicant in a contentious case is required to indicate on what basis of jurisdiction it relies by virtue

of Article 38 (2) of the Rules. The Applicant has not done so. In fact, it has done the opposite. It

asserts no jurisdiction.

7. It is significant that most of the arguments made yesterday must be seen as arguments in

the alternative, although the Applicant has not said as much  and for good reason. Arguments

ratione materiae and ratione temporis are only relevant if the Court finds that Serbia and

Montenegro is party to the Statute and the Genocide Convention ― a position the Applicant itself

now rejects.

8. It is regrettable that the Applicant makes these alternative arguments now for the first time

and almost four years after we filed our Preliminary Objections on jurisdiction and admissibility.

This prevents us from responding in full to its arguments which are somewhat contradictory, or at

least of a subsidiary character, to the position taken in the December 2002 Written Observations.

9. This is an unfortunate departure from the spirit of the Rules, in particular Article 60,

paragraph 1. The whole point of the procedure laid out in the Rules of Court is to allow the

proceedings by successive stages to be based on the most recent submissions advanced by the

parties. This progressive back and forth permits the case to evolve towards a clear definition of the

dispute and a narrowing of the issues. Instead, the Applicant withheld all substantive arguments

until the oral hearings.

10. We admit to being pleased with one change in the Applicant’s position. Serbia and

Montenegro does not contest our objection to admissibility of the claim for new elements

respecting the period beginning 10 June 1999. Accordingly, we assume they have conceded this

point.

11. Serbia and Montenegro made an eloquent plea yesterday related to what it called “the

huge challenges in finding the proper direction after an unfortunate decade”. Much as we welcome

the important changes that have taken place in Serbia and Montenegro, this does not relieve it, as - 10 -

Applicant, from respecting the fundamental rules of this Court and identifying the grounds of

jurisdiction on which it relies.

12. Before responding, necessarily briefly, to some of the Applicant’s additional arguments,

I would like to emphasize that the incursions into the merits in yesterday’s pleadings have no place

in these Preliminary Objections.

JURISDICTION RATIONE TEMPORIS UNDER THE OPTIONAL CLAUSE

13. Mr. President and Members of the Court, the question of ratione temporis jurisdiction

under the purported optional clause declaration of 25 April 1999 is the topic of my next section.

14. The position of the Applicant on the interpretation and effect of its own declaration has

been in constant flux throughout this case. At the point of the Application for Provisional

Measures in 1999, it took the position that the global dispute could be subdivided into a

multiplicity of micro-disputes, or “instantaneous wrongful acts”. We heard nothing about that

yesterday. When the Memorial was filed, a completely new approach was instituted. It was said

that the dispute had only arisen in full on 10 June 1999, when the use of force had come to an end.

Again, we heard not a word about this yesterday. The difficulty the Applicant faces in overcoming

its own temporal reservation is evident from the twists and turns of its position at every stage of

this case.

15. Counsel for the Applicant ranged broadly over a number of issues related to the temporal

reservation: the role of intention, the birth of the dispute, and the nature of the double exclusion

formula.

16. Intention is indeed critical — but it is the intention revealed by the text that counts most

of all. That is the message of all the leading cases cited yesterday. Intention serves to clarify the

wording, not to negate it. The self-serving affirmations by an applicant in the course of litigation

with regard to its own intentions must obviously be treated with particular caution.

17. It is clear that the Applicant did have an intention when it included its time condition. It

wanted to protect itself on temporal grounds from a very broad range of unwanted litigation arising

out of the dissolution of Yugoslavia and its aftermath. It might well have hoped that it could

somehow escape from its own restriction when it came to the NATO dispute, possibly by - 11 -

attempting to subdivide the dispute into a multiplicity of disputes that it could define at will. But

that is speculation: what is clear is that it failed to identify any subsequent disputes at the

provisional measures stage; and that its own pleadings describe the entire sequence of events as a

single dispute. The Applicant cannot have it both ways. Having secured its own protection against

past disputes through its temporal reservation, it must live with the consequences.

18. The Applicant said there is no sufficient evidence of a double exclusion formula. The

evidence, Mr. President, is about as clear as it can be. It is in the language actually used, which

adopts a time-honoured formula with two components. And it is equally clear from the language

used that the two conditions must both be fulfilled. The dispute must have arisen after the signature

of the declaration and must also relate to situations and facts after that date. Grammatically, the

two conditions are not alternatives. They are not linked by the word “or”. They must both be met.

19. With respect to the first part of the formula, it is impossible to understand the contention

that a legal dispute could not have arisen by 24 March 1999. Paragraph 3.2.16 of the Applicant’s

Memorial is clear. It states: “The dispute arose in the discussions at the Security Council meetings

of 24 and 26 March 1999 between Yugoslavia and the Respondents before 25 April 1999

concerning the legality of those bombings as such, taken as a whole.” This may have been

repudiated yesterday, but it speaks for itself, and a party cannot be allowed to reverse its positions

in the course of litigation. On 24 March, after the military action had begun, a letter was addressed

by the Applicant to the President of the Security Council asking it “to condemn and to stop the

NATO aggression against the Federal Republic of Yugoslavia and to protect its sovereignty and

territorial integrity”. A conflict of legal views and interests could not have been more clearly

stated. Whether by the Mavrommatis formulation consistently used by the Court or by the

somewhat different formula suggested by Sir Robert Jennings, the dispute had arisen by that time.

20. It was also suggested that the dispute crystallized only when the Application was made.

With respect, we suggest that this theory should not be adopted. It would deprive the reservation of

any effectiveness, contrary to principles to which Professor Brownlie himself referred yesterday. If

a dispute crystallized only by the filing of an application, no dispute would ever be excluded on the

basis of a reservation referring to pre-existing disputes. And it would provide no protection at all to

the declaring State. - 12 -

21. I turn now to the remarks made about the second part of the formula, which refers to

situations or facts subsequent to the signature of the declaration. As we suggested in the first

round, and as the Court itself indicated in the Order of 2 June 1999, there is strictly speaking no

need to consider this part of the formula. But if we do consider it, it also bars jurisdiction on the

basis of the purported declaration.

22. The Applicant referred yesterday to the ILC Articles on Continuing Breach, and

suggested that because this dispute continued over a period of time subsequent to 25 April 1999,

the second condition was satisfied. This is a misinterpretation of the second branch of the double

exclusion formula. Even in the case of ongoing disputes, it remains necessary to identify a specific

date in order to apply the reservation. When it becomes necessary to identify a critical date for the

purpose of applying a temporal reservation with this language, the leading cases such as

Phosphates in Morocco and Right of Passage tell us what to do. They direct us to identify the

situations or facts that constitute the “source” or the “real cause” of the dispute, as opposed to its

confirmation or development.

23. Typically this takes us back once again to the origins of the dispute, or at least to its

earlier phases. At the very least, it takes us back as far as the inception of the use of force in late

March of that year, and the objections made to that action by the Applicant. In short,

Mr. President, the claim to jurisdiction under the optional clause is barred under either one of the

two parts of the double exclusion formula in the declaration made by the Federal Republic of

Yugoslavia on 25 April 1999.

T HE G ENOCIDE C ONVENTION

24. Mr. President and Members of the Court. Yesterday counsel for the Applicant addressed

the Genocide Convention, and in particular the question of the existence of genocidal intention. I

note that the claims related to the application of the Genocide Convention during the peacekeeping

phase after 10 June 1999 have been dropped altogether. I would also remind the Court that no

comment was made on another of our arguments relating to the Convention, namely that there

cannot be a “dispute” within the meaning of Article IX of that Convention when the claimant - 13 -

insists that it was not a party to the Convention at the relevant time, and cannot therefore claim that

it was owed any obligations under the Convention at that time.

25. The Applicant took issue with the prima facie findings of the Court at the provisional

measures stage, namely that the use of force cannot in itself constitute an act of genocide and that

the requisite element of genocidal intention was not to be found in the claims made by the

Applicant. And yet, Mr. President, the very description of the purpose of the NATO action that

was given yesterday is fundamentally inconsistent with the idea that a genocidal intention existed

in this case, or indeed that the case has anything to do with genocide. We obviously do not accept

the characterizations of the purpose of the action given by the other side, but we do appear to agree

that the purpose was not to destroy a group in whole or in part.

26. The descriptions given yesterday demonstrate that the ultimate objective was poles apart

from what the Court has defined as a denial of the right of existence of entire human groups. We

were told that the purpose was to coerce the Yugoslav Government to accept the demands made at

Rambouillet and to force compliance with the demands made by the Contact Group. The political

purpose of the bombing, according to the Applicant, was to coerce the people and Government of

Serbia and Montenegro. Or alternatively, in other passages of the argument, to intimidate them.

27. Mr. President and Members of the Court: political coercion and intimidation are

characterizations that have nothing at all to do with the destruction of a people. It would be a

fundamental distortion of the ordinary language and of purposes of the Genocide Convention to

equate coercion with an intention to destroy a protected group as such.

28. Mr. President, we also argued in the first round that the Applicant has wrongly equated

genocide with violations of international humanitarian law, and that it treats the two as if they were

the same thing. We received ample confirmation of that yesterday. The allegations made are

matters that could be evaluated under various instruments of international humanitarian law. But

they cannot be evaluated under the law of genocide, in the absence of at least some allegations or

evidence that the overall intent was to destroy a group  and we know that was not the intent from

the Applicant’s own description of the political objectives of the campaign.

29. To put it in a nutshell, Mr. President and Members of the Court, what was proffered as

evidence of genocidal intention yesterday falls into two categories: the allegation of an overall - 14 -

objective of political coercion, not the destruction of a protected group as such; and a series of

allegations that properly belong to the distinct domain of the law of armed conflict.

30. Moreover, the Applicant’s analysis omits a vital element of Article II, namely that the

intention to destroy must be directed towards the group “as such”. On this point, I would simply

refer the Court to paragraphs 147 to 152 in our Preliminary Objections, to which the Applicant has

not presented a rebuttal. I would also note that the Rwanda Tribunal noted in its decision on

Niyitegeka that “as such” means that the act must be committed against an individual “because the

individual was a member of a specific group and specifically because he belonged to that group”.

31. One final point. The Applicant has suggested that our objections with respect to the

Genocide Convention are not of an exclusively preliminary character. This is incorrect. It is

obviously unnecessary for the Applicant to prove its claims at this stage. But it must at least

submit a claim whose subject-matter falls within the Convention, as the Oil Platforms test requires.

And given what the Court has called the essential characteristic of genocide, that must include

allegations pointing toward an overall plan or ultimate objective of destroying a protected group as

such. And there is nothing of the kind in the Applicant’s case against Canada. If a question can be

determined through the application of the Oil Platforms test, then that should be the end of the

matter. It is then virtually by definition a matter that has an exclusively preliminary character

within the meaning of Article 79, paragraph 7.

32. Mr. President, we submit that even if all the allegations made by the Applicant were

proved to be true, they would not fall within the subject-matter of the Genocide Convention. To

join the preliminary objections to the merits would create a dangerous precedent  mere

allegations of genocide cannot be sufficient to deprive the objections of their exclusively

preliminary character. There should be no free ride to the merits. The policy as to when

Article 79, paragraph 7, should be applied is clear: rarely, sparingly, and only when absolutely

necessary for the proper administration of justice.

33. Mr. President and distinguished Members of the Court, this concludes Canada’s

argument in the second round of oral pleadings. I will now proceed to the reading of Canada’s

final submissions. I will do so in French. - 15 -

C ONCLUSIONS FINALES

34. Le Gouvernement du Canada demande à la Cour de dire et juger que la Cour n’est pas

compétente car le demandeur a abandonné toutes les bases de compétence qu’il avait initialement

indiquées dans sa requête en vertu de l’article 38, paragraphe 2, du Règlement de la Cour, et n’a

pas précisé d’autres bases de compétence.

35. A titre subsidiaire, le Gouvernement du Canada demande à la Cour de dire et juger que

 en premier lieu, la Cour n’est pas compétente pour statuer sur l’instance introduite par le

demandeur contre le Canada le 29 avril 1999, sur le fondement de la prétendue déclaration du

25 avril 1999;

 en deuxième lieu, la Cour n’a pas non plus compétence sur la base de l’article IX de la

convention sur le génocide;

 en troisième lieu, les demandes nouvelles ayant trait à la période postérieure au 10 juin 1999

sont irrecevables car elles transformeraient l’objet du différend dont la Cour a originellement

été saisie;

 et, en dernier lieu, les demandes en leur entier sont irrecevables parce que la présence

essentielle de tiers qui ne sont pas parties à l’instance est exigée par l’objet du litige.

Mr. President, distinguished Members of the Court, I thank you very much for your kind

attention.

The PRESIDENT: Thank you, Ms Swords. The Court takes note of the final submissions

which you have now read on behalf of Canada. This brings to an end the second round of oral

argument of Canada.

The Court rose at 11.40 a.m.

___________