Corrigé
Corrected
CR 2014/12
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2014
Public sitting
held on Friday 7 March 2014, at 10 a.m., at the Peace Palace,
President Tomka presiding,
in the case concerning Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Croatia v. Serbia)
________________
VERBATIM RECORD
________________
ANNÉE 2014
Audience publique
tenue le vendredi 7mars 2014, à 10 heures, au Palais de la Paix,
sous la présidence de M. Tomka, président,
en l’affaire relative à l’Application de la convention pour la prévention
et la répression du crime de génocide (Croatie c. Serbie)
____________________
COMPTE RENDU
____________________ - 2 -
Present: President Tomka
Vice-President Sepúlveda-Amor
Judges Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Gaja
Sebutinde
Bhandari
Judges ad hoc Vukas
Kreća
Registrar Couvreur
- 3 -
Présents : M. Tomka, président
M. Sepúlveda-Amor, vice-président
MM. Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Mmes Xue
Donoghue
M. Gaja
Mme Sebutinde
M. Bhandari, juges
MM. Vukas
Kreća, juges ad hoc
M. Couvreur, greffier
- 4 -
The Government of the Republic of Croatia is represented by:
Ms Vesna Crnić-Grotić, Professor of International Law, University of Rijeka,
as Agent;
H.E. Ms AndrejaMetelko-Zgombić, Ambassador, Director General for EU Law, International Law
and Consular Affairs, Ministry of Foreign and European Affairs, Zagreb,
Ms Jana Špero, Head of Sector, Ministry of Justice, Zagreb,
Mr. Davorin Lapaš, Professor of International Law, University of Zagreb,
as Co-Agents;
Mr. James Crawford, A.C., S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, Member of the Institut de droit international, Barrister, Matrix Chambers, London,
Mr. PhilippeSands, Q.C., Professor of Law, University College London, Barrister, Matrix
Chambers, London,
Mr. Mirjan R. Damaška, Sterling Professor Emeritus of Law and Professorial Lecturer in Law,
Yale Law School, New Haven,
Mr. Keir Starmer, Q.C., Barrister, Doughty Street Chambers, London,
Ms Maja Seršić, Professor of International Law, University of Zagreb,
Ms Kate Cook, Barrister, Matrix Chambers, London
Ms Anjolie Singh, Member of the Indian Bar, Delhi,
Ms Blinne Ní Ghrálaigh, Barrister, Matrix Chambers, London
as Counsel and Advocates;
Mr. Luka Mišetić, Attorney at Law, Law Offices of Luka Misetic, Chicago,
Ms Helen Law, Barrister, Matrix Chambers, London
Mr. Edward Craven, Barrister, Matrix Chambers, London,
as Counsel;
H.E. Mr. Orsat Miljenić, Minister of Justice of the Republic of Croatia,
H.E. Ms Vesela Mrđen Korać, Ambassador of the Republic of Croatia to the Kingdom of the
Netherlands, The Hague,
as Members of the Delegation; - 5 -
Le Gouvernement de la République de Croatie est représenté par :
Mme Vesna Crnić-Grotić, professeur de droit international à l’Université de Rijeka,
comme agent ;
S. Exc. Mme Andreja Metelko -Zgombić, ambassadeur, directeur général de la division de droit
communautaire et international et des affaires consulaires du ministère des affaires étrangères et
des affaires européennes,
Mme Jana Špero, chef de secteur au ministère de la justice,
M. Davorin Lapaš, professeur de droit international à l’Université de Zagreb,
comme coagents ;
M. James Crawford, A.C., S.C., F.B.A., professeur de droit international à l’Univers ité de
Cambridge, titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat,
Matrix Chambers (Londres),
M. Philippe Sands, Q.C., professeur de droit, University College de Londres, avocat,
Matrix Chambers (Londres),
M. Mirjan R. D amaška, professeur de droit émérite de l’Université de Yale (chaire Sterling),
chargé d’enseignement à l’Université de Yale,
M. Keir Starmer, Q.C., avocat, Doughty Street Chambers (Londres),
Mme Maja Seršić, professeur de droit international à l’Université de Zagreb,
Mme Kate Cook, avocat, Matrix Chambers (Londres),
Mme Anjolie Singh, membre du barreau indien (Delhi),
Mme Blinne Ní Ghrálaigh, avocat, Matrix Chambers (Londres),
comme conseils et avocats ;
M. Luka Mišetić, avocat, Law Offices of Luka Misetic (Chicago),
Mme Helen Law, avocat, Matrix Chambers (Londres),
M. Edward Craven, avocat, Matrix Chambers (Londres),
comme conseils ;
S. Exc. M. Orsat Miljenić, ministre de la justice de la République de Croatie,
S. Exc. Mme Vesela Mrđen Korać, ambassadeur de la République de Croatie auprès du Royaume
des Pays-Bas,
comme membres de la délégation ; - 6 -
Mr. Remi Reichhold, Administrative Assistant, Matrix Chambers, London,
Ms Ruth Kennedy, LL.M., Administrative Assistant, University College London,
as Advisers;
Ms Sanda Šimić Petrinjak, Head of Department, Ministry of Justice,
Ms Sedina Dubravčić, Head of Department, Ministry of Justice,
Ms Klaudia Sabljak, Ministry of Justice,
Ms Zrinka Salaj, Ministry of Justice,
Mr. Tomislav Boršić, Ministry of Justice,
Mr. Albert Graho, Ministry of Justice,
Mr. Nikica Barić, Croatian Institute of History, Zagreb,
Ms Maja Kovač, Head of Service, Ministry of Justice,
Ms Katherine O’Byrne, Doughty Street Chambers,
Mr. Rowan Nicholson, Associate, Lauterpacht Centre for International Law, Unive rsity of
Cambridge,
as Assistants;
Ms Victoria Taylor, International Mapping, Maryland,
as Technical Assistant.
The Government of the Republic of Serbia is represented by:
Mr. Saša Obradović, First Counsellor of the Embassy of the Republic of Serbia in the Kingdom of
the Netherlands, former Legal Adviser of the Ministry of Foreign Affairs,
as Agent;
Mr. William Schabas, O.C., M.R.I.A., Professor of International Law, Middlesex University
(London) and Professor of International Criminal Law and Human Rights, Leiden University,
Mr. AndreasZimmermann, LL.M. (Harvard), Professor of International Law, University of
Potsdam, Director of the Potsdam Centre of Human Rights, Member of the Permanent Court of
Arbitration,
Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Professor of International Law, University of
Glasgow, - 7 -
M. Remi Reichhold, assistant administratif, Matrix Chambers (Londres),
Mme Ruth Kennedy, LL.M., assistante administrative, University College de Londres,
comme conseillers ;
Mme Sanda Šimić Petrinjak, chef de département au ministère de la justice,
Mme Sedina Dubravčić, chef de département au ministère de la justice,
Mme Klaudia Sabljak, ministère de la justice,
Mme Zrinka Salaj, ministère de la justice,
M. Tomislav Boršić, ministère de la justice,
M. Albert Graho, ministère de la justice,
M. Nikica Barić, Institut croate d’histoire (Zagreb),
Mme Maja Kovač, chef de département au ministère de la justice,
Mme Katherine O’Byrne, Doughty Street Chambers,
M. Rowan Nicholson, Associate au Lauterpacht Center for International Law de l’Université de
Cambridge,
comme assistants ;
Mme Victoria Taylor, International Mapping (Maryland),
comme assistante technique.
Le Gouvernement de la République de Serbie est représenté par :
M. Saša Obradović, premier conseiller à l’ambassade de la République de Serbie au Royaume des
Pays-Bas, ancien conseiller juridique au ministère des affaires étrangères,
comme agent ;
M. William Schabas, O.C., membre de la Royal Irish Academy, professeur de droit international à
la Middlesex University (Londres) et professeur de droit pénal international et des droits de
l’homme à l’Université de Leyde,
M. Andreas Zimmermann, LL.M. (Université de Harvard), professeur de droit international à
l’Université de Potsdam, directeur du centre des droits de l’homme de l’Université de Potsdam,
membre de la Cour permanente d’arbitrage,
M. Christian J. Tams, LL.M., Ph.D. (Université de Cambridge), professeur de droit international à
l’Université de Glasgow, - 8 -
Mr. Wayne Jordash, Q.C., Barrister, Doughty Street Chambers, London, Partner at Global Rights
Compliance,
Mr. Novak Lukić, Attorney at Law, Belgrade, former President of the Association of the Defense
Counsel practising before the ICTY,
Mr. Dušan Ignjatović, LL.M. (Notre Dame), Attorney at Law, Belgrade,
as Counsel and Advocates;
H.E. Mr. Petar Vico, Ambassador of the Republic of Serbia to the Kingdom of the Netherlands,
Mr. Veljko Odalović, Secretary-General of the Government of the Republic of Serbia, President of
the Commission for Missing Persons,
as Members of the Delegation;
Ms Tatiana Bachvarova, LL.M . (London School of Economics and Political Science), LL.M.
(St. Kliment Ohridski), Ph.D. candidate (Middlesex University), Judge, Sofia District Court,
Bulgaria,
Mr. Svetislav Rabrenović, LL.M. (Michigan), Senior Adviser at the Office of the Prosecutor for
War Crimes of the Republic of Serbia,
Mr. Igor Olujić, Attorney at Law, Belgrade,
Mr. Marko Brkić, First Secretary at the Ministry of Foreign Affairs,
Mr. Relja Radović, LL.M. (Novi Sad), LL.M. (Leiden (candidate)),
Mr. Georgios Andriotis, LL.M. (Leiden),
as Advisers. - 9 -
M. Wayne Jordash, Q.C., avocat, Doughty Street Chambers (Londres), associé du cabinet Global
Rights Compliance,
M. Novak Lukić, avocat, Belgrade, ancien président de l’association des conseils de la défense
exerçant devant le TPIY,
M. Dušan Ignjatović, LL.M. (Université Notre Dame), avocat, Belgrade,
comme conseils et avocats ;
S. Exc. M. Petar Vico, ambassadeur de la République de Serbie auprès du Royaume des Pays-Bas,
M. Veljko Odalović, secrétaire général du Gouvernement de la République de Serbie, président de
la commission pour les personnes disparues,
comme membres de la délégation ;
Mme Tatiana Bachvarova, LL.M. (London School of Economics and Political Science),
LL.M. (Université St. Kliment Ohridski), doctorante (Middlesex U niversity); juge au tribunal
de district de Sofia (Bulgarie),
M. Svetislav Rabrenović, LL.M. (Université du Michigan), conseiller principal au bureau du
procureur pour les crimes de guerre de la République de Serbie,
M. Igor Olujić, avocat, Belgrade,
M. Marko Brkić, premier secrétaire au ministère des affaires étrangères,
M. Relja Radović, LL.M. (Université de Novi Sad), LL.M. (Université de Leyde (en cours)),
M. Georgios Andriotis, LL.M. (Université de Leyde),
comme conseillers. - 10 -
The PRESIDENT: Good morning. Please be seated. The sitting is open. The Court me ets
this morning to hear the conclusion of Croatia’s first round of oral argument on its own claim.
Yesterday, Sir Keir Starmer started his pleading on the legal basis for responsibility of the
Respondent for violations of the Genocide Convention and he c an now continue his presentation.
You have the floor, Sir.
Sir Keir STARMER : Thank you, Mr. President and Members of the Court. Before
resuming my speech, with your permission I propose to deal with two of the questions posed by
Members of the Court during the course of the oral hearing. First, on Tuesday, Judge Bhandari
posed a question about the probative weight that should be given to three different categories of
witness evidence, as follows:
(i) Evidence from witnesses whose statements have been annexed to the pleadings but who
have not been called;
(ii) Evidence from witnesses who have been named but not cross-examined; and then
(iii) Evidence from witnesses who have been both named and cross-examined.
The Applicant takes the position that al l evidence that is submitted to the Court by the
Parties should start with the same probative value, irrespective of the manner in which that
evidence was submitted. It will then be for the Court to determine what weight, if any, to attach to
that evidence.
Professor Zimmerman’s commentary on the Court’s Statute states: “The case law of the
Court allows the conclusion that the weight of each piece of evidence in proving particular facts
1
will mainly depend on two factors, the reliability and neutrality of the source of such evidence.”
The majority of this Court in the Bosnia case suggested 2 that the following factors may be relevant
to probative value of witness evidence; first, whether the statement is given from direct knowledge
or hearsay; secondly, the passage of time between the events in question and the testimony; third,
1M. Benzing, “Evidentiary Issues”, in A. Zimmerman et al (eds.), The Statute of the International Court of
Justice: A commentary(2012), Ch. 3, p. 1267, MN 114.
2Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment,I.C.J. Reports 2007 (I), p. 135, paras. 226-227. - 11 -
whether the statement is from a partisan or neutral source; fourth, the process of generation; and,
fifth, the quality or character of the statement, for example, statements against interest.
In our submission, these criteria apply equally to oral testimony and to statements made out
of court. A witness statement should not be afforded less probative value simply because the
witness was not proposed for live testimony by the party that submitted the statement. In these
proceedings, witnesses who were identified for live testimony were selected only as a
representative sample of the witness testimony as a whole and not because their testimony was
believed to more credible than that of the other witnesses.
The testimony of witnesses who were called for cross -examination, we submit, should be
assessed in light of the criteria identified and further assessed for its reliability and credibility in
light of the cross-examination.
The testimony of witnesses who were identified for live testimony by a party but not called
for cross-examination by the opposite party should be given no more or less weight than any other
evidence but must be assessed in light of the criteria identified.
In accordance with many legal systems, a party is permitted to argue about the probative
value of any witness’s testimony, regardless of whether the party chose to cross- examine the
witness.
Can I then turn to a second question. On Wednesday, I t hink it was, Judge
Sir ChristopherGreenwood sought clarification on the numbers in relation to Vukovar and, in
particular, the number killed during the siege of Vukovar, the number killed during Phase 4 and the
number detained and later released in the aftermath.
First, can I take this opportunity to clarify the audio content of the video clip that was shown
about Vukovar. The clip is taken from the BBC documentary “The Death of Yugoslavia”, which
was made in 1995. The relevant commentary states: “Vu kovar finally fell to the Serbs, now they
controlled one third of Croatia. The cost to the two sides was 15,000 dead and half a million
refugees.” We have always understood that to refer to the overall losses in Croatia, probably on
both sides, rather than the numbers in Vukovar. I think that is probably right from the transcript,
but that is how we have always treated it, and that is the basis upon which we proceed. We never
have and, for clarification, we do not suggest that 15,000 were killed in the Vukovar siege. - 12 -
To clarify the figures with respect to Vukovar. The best figures we have for those killed in
the siege are between 1,100 and 1,700 of which, before Phase 4, 70 per cent were civilians. So far
as Phase 4 is concerned, it is difficult to est imate with any precision how many were killed during
Phase 4. In the pleadings, the assertion is made that 2,000 were killed after the occupation of the
city. There is some precision, obviously, in relation to the exhumed bodies from graves. That
evidence is as follows: in Vukovar, there were three mass graves, Ov čara, which yielded
3
194 corpses; the new cemetery with 938 remains (and Nova Street, where there were ten [10]
remains). Over 200 people from Vukovar city are still missing but it is important to point out that,
apart from the aforementioned, victims from Vukovar were also found in a number of graves in the
surrounding area of Vukovar. I think they are the best figures that we can put before the Court in
answer to that question.
The third question then: statistics on the number of persons detained. T he data here is also
limited. A list of the 7,708 people who were detained is provided in Annex 42 of the Reply. Some
of the records specify the prison camp at which the person was detained. However, the list does
not contain information about where eac h person was taken from. Information about where the
person was detained would be of little utility in determining where they were taken from, as many
of the detainees were taken east into Serbia for detention. In other words, so far as we can see, you
cannot ascertain from the place of the detention camp whether people were necessarily from
Vukovar, because they were not necessarily taken to the nearest camp and they may have been
taken quite some distance. So, I am afraid what is in Annex 42 is probabl y the best evidence that
can be put before the Court on that issue.
Mr. President, Members of the Court, I will then resume my speech on the Legal Basis for
Responsibility of the Respondent for Violations of the Genocide Convention. I think on a number
of occasions I have said the “Geneva Convention”. I think I am not permitted to correct the
transcript in that respect but if I did slip into Geneva Convention, please read “Genocide
Convention”!
The PRESIDENT: You can still correct the transcript.
You will recall that some of those bodies had been moved from primary graves to secondary graves but the total
number is 938. - 13 -
Sir Keir STARMER: Yes, I think I am told that two days ago I slipped in the Geneva
Convention inadvertently on a couple of occasions. I hope it was so obvious that it does not need
correction.
Mr. President, the text of today’s speech is before you as one text, notwithstanding that I did
not cover everything I had hoped to cover yesterday. I have now included and incorporated it into
today’s speech. I am going to deal mainly this morning with the evidence on intent but I will start
by just finishing my submissions on my short analysis of the legal aspects and I had reached the
question of the meaning of “destroy” and “in whole or in part” in ArticII of the Genocide
Convention.
L EGAL B ASIS FOR RESPONSIBILITY OF THE R ESPONDENT FOR V IOLATIONS
OF THE GENOCIDE C ONVENTION CONTINUED )
IV. Genocidal intent
(b) The meaning of “destroy” and “in whole or in part”
1. Article II of the Genocide Convention, as the Court knows, specifies that there must be an
intention to “destroy” a protected group or parta group. However, as Professor Sands has
explained, the destruction of a group, or part of a group, does not require extermination of all the
members of the group, or even, we say, a substantial part of it. What must be shown is an intention
to destroy a group or part of a group as a functioning entity.
2. Whereas the destruction of a group “in whole” is relatively straightforward, this Court in
the Bosnia case made important findings with respect to the destructiof a group “in part”.
Professor Sands dealt with that in some detail two days ago and I do not propose to repeat it here.
3. However, clearly numbers are not without some relevance. There must be a destruction o f
some people who form part of the group. The scale of deaths, and the extent ofpersecution,
contemplated or inflicted on members of the protected group will be important factors in
determining whether the acts complained of were or must have been committed with an
intent to destroy the protected group, or part of it, as such. B ut, as we have said on a number of
occasions, this is not a numbers game. Genocide under the Convention is an inherently inchoate - 14 -
offence, which criminalizes the doing of particular acts with a particular intent. It is not fixed on a
4
particular result, or a pre-defined threshold .
4. The opportunity available to the perpetrator will be highly significant. And I will examine
evidence on that later. It may be that the perpetrator only has the opportunity to destroy those
members of a group living within a confined geographical area. Thus, in Bosnia, the targeting of
Bosnian Muslims living in the geographically confined area of Srebrenica was sufficient for the
purposes of Article II of the Genocide Convention.
5. In this case the target group identified by the Applicant is the Croat population that was, at
the relevant time, living in Eastern Slavonia, Western Slavonia, Banovina, Kordun, Lika, and
Dalmatia, including those living as groups in individual villages . In other words, those Croats
living in areas, towns and villages to be included in “Greater Serbia”. There can be no doubt that
these groups, some of which were very numerous, constituted a sufficient “part” of the Croat
population as a whole for the purposes of Article II of the Genocide Convention.
6. That Serbia did not, in fact, physically destroy all those making up parts of these groups
does not rule out a finding of genocide . The question for determination is whether, when the JNA
and Serb forces engaged in the conduct prohibited by Art icle II of the Convention including
killing, seriously harming and removing the basic conditions of life from such members of the
group as they were able to, taking into account the opportunities presented to them they did so
with an intent to destroy groups comprising those Croats living in the areas to be included in
“Greater Serbia”.
7. That is why the Applicant submits that the evidence of each small pocket of atrocities
village by village, town by town and the patterns of behaviour discernible from them is so
telling. If what lay behind these atrocities was a genocidal intent to destroy Croats living in the
areas, towns and villages to be included in “Greater Serbia”, genocide is made out whether the
numbers actually killed, seriously harmed, tortured or persecuted on any given occasion are large
or small.
See, e.g., David L. Nersessian, Genocide and Political Groups, 2010, p. 17. - 15 -
8. To take an obvious example that arises on the facts of this case : if Serb forces advanced
on a village or town intent on taking every opportunity to kill or seriously mistreat every Cr oat
living there, but before they arrived, some or even most Croats from the village ortown fled in fear
of their lives, all that establishes is that the extent of the conduct committed in violation of
Article II of the Genocide Convention was less than i t might otherwise have been . It does not
affect the intention of those engaging in theconduct. Nor can it be said that intent is to be assessed
without reference to the opportunity that arises. In these instances genocide is still made out.
9. Finally, as to the words “as such” in Article II, these were recogniz ed by the Court in the
Bosnia case as having been included in order to emphasi ze an “intent to destroy the protected
group” . This is understood to mean that the specific intent in Article II requires that the acts in
question should have been directed against members of the protected group as a group : they were
attacked because of their national or ethnic origins, their race or their religion. The words “as
such” are included with the intent to highlight the discriminatory and targeted nature that is
inherent in the crime of genocide.
(c) Genocide and ethnic cleansing
10. Mr. President, Members of the Court, I turn now to the relationship between genocide
and ethnic cleansing. In the Bosnia case, this Court considered the relationship between genocide
and “ethnic cleansing”. [Plate on] And you observed that and hopefully on your screen you
have this extract:
“Neither the intent, as a matter of policy, . . . nor the operations that may be
carried out to implement such policy, can as such be designated as genocide [they are
talking about the policy and operations of ethnic cleansing there] : the intent that
characterizes genocide is ‘to destroy, in whole or in part ’ a particular group, and
deportation or displacement of members of a group, even if effected by force, is not
necessarily equivalent to destruction of that group, nor is such destruction an
6
automatic consequence of the displacement.” [Plate off]
11. As Professor Sands has indicated, the words “as such” and “necessarily” in this passage
are carefully chosen and obviously important . They imply that while deportation or displacement
5
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 121, para. 187; hereafter Bosnia.
6Bosnia, p. 123, para. 190. - 16 -
of members of a group, or part of a group, is not automatically to be equated with genocide, it is
capable of amounting to genocide. Whether it does so depends on the facts of each case.
12. [Plate on] But and it is an important “but” there is clearly an overlap. This
interpretation is reinforced by the Court’s later observation that and again, I hope you have this
on your screens:
“This is not to say that acts described as ‘ethnic cleansing’ may never constitute
genocide, if they are such as to be characteriz ed as, for example, ‘ deliberately
inflicting on the group conditions of life calcu lated to bring about its physical
destruction in whole or in part ’ . . . provided such action is carried out with the
necessary specific intent . . ., that is to say wi7h a view to the destruction of the group,
as distinct from its removal from the region.”
[Next graphic] And later, the Court went on to say that again, I hope you have got this quote
“it is clear that acts of ‘ethnic cleansing’ may occur in parallel to acts prohibited by Article II of the
Convention, and may be significant as indicat ive of th e presence of a specific intent ( dolus
specialis) inspiring those acts” . [Plate off]
13. So, to be clear, it is not Croatia ’s position that the forced expulsion and removal of
Croats living in areas to be included in “ Greater Serbia” alone proves genocidal intent: it is those
acts coupled with the others that are relied on . The act of forcibly displacing a population may
amount to genocide if it is in furtherance of an intent to destroy a group, or a part of a group. The
Applicant submits that this was the case in Croatia.
14. For example, in the case of Krstić in the ICTY, the Trial Chamber convicted the accused
of genocide, using forcible displacement to support a finding of genocidal intent 9. The Trial
Chamber held that the accused had the requisite genocidal intent because he sought to eliminate all
of the Bosnian Muslims in Srebrenica as a community . By killing military-aged men and forcibly
transferring women, children and the elderly, the Bosnian Serb forces effectively destroyed the
community of Bosnian Muslims living in Srebrenica and eliminated all likelihood that the
community would be re-established.
7
Bosnia, p. 123.
8Ibid.
9
Prosecutor v. Krstić, Case No. IT-98-33-T, Trial Judgement, 2 Aug. 2001, paras. 594-598. - 17 -
15. That case went on appeal, as you know, and on appeal the accused claimed that the Trial
Chamber had impermissibly broadened the definition of genocide by using displacement as
evidence of destruction. However the Appeals Chamber affirmed the Trial Chamber ’s finding that
the forcible transfer of women provided evidence of an intent to physically destroy , and we have
the extract from the Appeals Chamber, I hope, on your screens:
[Plate on]
“As the Trial Chamber explained, forcible transfer could be an additional means
by which to ensure the physical destruction of the Bosnian Muslim community in
Srebrenica. The transfer completed the removal of all Bosnian Muslims from
Srebrenica, thereby eliminatin g even the residual possibility that the Muslim
community in the area could reconstitute itself . . . The Trial Chamber as the best
assessor of the evidence presented at trial was entitled to conclude that the evidence
of the transfer supported its fi nding that some members of the VRS Main Staff
intended to destroy the Bosnian Muslims in Srebrenica. The fact that the forcible
transfer does not constitute in and of itself a genocidal act does not preclude a Trial
Chamber from relying on it as evidence of the intentions of members of the VRS Main
10
Staff.”
[Plate off]
16. My friend and colleague, Professor Schabas, who elsewhere advocates that ethnic
cleansing and genocide are wholly separate, has explained his view as follows: [plate on]
“The genocidaire seeks to kill individuals with the intent to destroy the group to
which they belong, in whole or in part . Herein lies the fundamental difference with
ethnic cleansing which generally involves killing, but with the intent to effect forced
migration from a territory.” 11 [Plate off]
Mr. President and Members of the Court, that neatly identifies a key question for this Court and let
me try to pose that question.
17. The commission of widespread and systematic cr imes against the majority Croat
population o f the territory in question is evidenced in the Applicant ’s pleaded case and the
evidence before this Court, supported by the findings of the ICTY. You have heard, and you have
the evidence, that those crimes included extermination, systematic murder, tor ture, cruel treatment,
sexual violence, detention in inhuman conditions, forced expulsion, the destruction of Croat public
and private property, the targeting of monuments of cultural and religious significance to Croats as
1Prosecutor v. Krstić, Case No. IT-98-33-A, Appeals Judgement, 19 April 2004, paras. 31-33.
1William A. Schabas, “Problems of International Codification Were the Atrocities in C ambodia and Kosovo
Genocide?”, 2001, 35 New Eng. L. Rev., p. 295. - 18 -
a group, and the establishment of a discriminatory r égime of persecution of Croat groups who
remained in occupied territory. The question for the Court is whether the commission of those
crimes, taken together, was merely intended to borrow my friend’s words “to effect forced
migration from the territory” to be included in “Greater Serbia”?
18. Or, is the only safe conclusion the one advocated by the Applicant, namely that when
analysed carefully and in context, the real intent is clear: namely, an intention to destroy groups of
Croats living across the territory to be included in “Greater Serbia”?
19. The fact that the Respondent can point to underlying acts consistent with ethnic cleansing
does not answer that question. What matters is the intention driving the conduct in ques tion. And
that can only be discerned from an intense focus on the patterns of behaviour. These must be
assessed, not in isolation, but in their proper historical and political context.
20. Moreover, as Professor Schabas has elsewhere accepted, what starts as ethnic cleansing
may end up as genocide. He gives this example: “The ethnic cleanser may become frustrated, of
12
course, and evolve into a related but distinct species, the genocidaire” . That raises the important
issue of the distinction between motive and intention, to which I now turn.
(d) The distinction between motive and intention
21. In a case such as this, it is essential to draw a distinction between motive and intent.
Motive is a person ’s overall reason for doing something; intent is his purpose or design in doing
so. To take an example far removed from this case, a man may kill his wife because he is
motivated by jealousy, but that does not mean he lacks the intention to kill necessary to make out
the offence of murder.
22. In this case, the motive of the Serbian leadership, in pursuing the joint criminal enterprise
which the ICTY has found to have existed, was to secure control of approximately one third of the
territory of Croatia, and to transform it into an ethnically homogenous, Serb-dominated State.
23. It can thus be argued that the “motive” for the commission of these crimes was territorial
acquisition coupled with the desire of the Serbian leadership for an ethnic purity in “ Greater
1William A. Schabas, “Problems of International Codification Were the Atrocities in C ambodia and Kosovo
Genocide?”, 2001, 35 New Eng. L. Rev., p. 295. - 19 -
Serbia”. But the means by which the Serb f orces set about achieving the goal of territorial
acquisition and ethnic purity in “ Greater Serbia” reveals their “intent”. And that can only be
discerned from the evidence about the pattern of behaviour. That the Serb forces could have
achieved their goal without resorting to genocide is nothing to the point.
24. And what the evidence shows is that the “intent” of the Serbian leadership, the JNA and
the forces under their control as to how to achieve their goal was permanently to eradicate the
majority Croat population then living in the territory. As the ICTY has confirmed, the political and
military campaign by which the object of the joint criminal enterprise was to be achieved included
the intentional and organized commission of widespread and systematic crimes, acts the Applicant
says are specified in Article II of the Genocide Convention against groups of Croats on account of
their ethnicity, including killing, shelling, burning, torturing and removing the basic necessities of
life.
25. It is the Applicant’s case that the scale of the crimes committed, including widespread
murder and torture, along with crimes of sexual violence, and forced deportation, taken together,
evince a clear intention to bring about the physical destruction of groups of C roats in the identified
territories, in whole or in part. This intent was held b y the Serbian leadership and/or the JNA and
the forces under their control.
(e) The evidence of intent
26. I turn then to the evidence of intent. The Applicant submits that the genocidal intent
behind the individual acts relied upon as establishing the actus reus of genocide is evidenced by a
series of related factors. Each of these may be sufficient to demonstrate genocidal intent ; taken
together they provide overwhelming evidence of the intent required by Article II.
27. The related factors relied on by the Applicant are listed in both the Memorial and the
13
Reply . In brief summary they are as follows, and I’ve these now as a series of four slides,
because there are 17 factors in total. So here are factors 1, 2, 3 and 4, and we say each of those on
its own, and then all 17 taken together, provide the overwhelming inference that there was a
genocidal intent:
1Memorial of Croatia (MC), para. 8.16; Replyof Croatia (RC), para. 9.6. - 20 -
[Plate on]
(1) The political doctrine of Serbian expansionism which created the climate for genocidal policies
aimed at destroying the Croatian population living in areas earmarked to become part of
“Greater Serbia”;
(2) The statements of public officials, including demonization of Croats and systematic incitement
on the part of State-controlled media;
(3) The fact that the pattern of attacks on groups of Croats far exceeded any legitimate military
objective necessary to secure control of the regions concerned;
(4) Contemporaneous video footage evidencing the genocida l intent of those carrying out the
attacks;
[Next graphic]
The next four factors in the list of 17 are these:
(5) The explicit recognition by the JNA that paramilitary groups were engaging in genocidal acts;
(6) The close co-operation between the JNA and the Serb paramilitary groups responsible for some
of the worst atrocities, implying close planning and logistical support;
Just pausing there: you heard the evidence of the attacks on the villages across wide regions in a
short period of time. Is it serio usly to be argued that that is all coincidence and there wasn’t any
co-ordination behind that the paramilitaries, the informal groups, had somehow all acted in the
same way at the same time across such a wide area? There must have been an organizing force.
(7) The systematic nature and sheer scale of the attacks on groups of Croats;
(8) The fact that ethnic Croats were constantly singled out for attack while local Serbs were
excluded;
[Next graphic]
(9) The fact that during the occupation, ethnic Croats were required to identify themselves and
their property as such by wearing white ribbons tied around their arms and by affixing white
cloths to their homes;
(10) The number of Croats killed and missing as a proportion of the local population; - 21 -
(11) The nature, degree and extent of the injuries inflicted (through physical attacks, acts of
torture, inhuman and degrading treatment, rape and sexual violence) including injuries with
recognizable ethnic characteristics;
(12) The use of ethnically derogatory language in the course of acts of killing, torture and rape;
[Next graphic]
(13) The forced displacement of Croats and the organized means adopted to this end;
(14) The systematic looting and destruction of Croatian cultural and religious monuments;
(15) The suppression of Croatian culture and religious practices among the remaining population;
(16) The consequent permanent and evidently intended demographic changes to the regions
concerned;
(17) The failure to punish the crimes which the Applicant alleges to be genocide.
[Plate off]
28. The remarkable aspect of this case is that almost all of the 17 elements have been
substantially confirmed by judicial findings of the ICTY in proceedings brought against senior Serb
officials. The free- standing evidence present ed in this case by the Applicant reinforces these
findings. And, the Applicant submits, it provides this Court with the opportunity to draw safe
conclusions.
29. I am sorry to go through in a list form those factors with the Court, but it is important
because the Applicant ’s submission is straightforward . While individual acts committed in the
course of the campaign might —if considered in isolation —have been explained as “common
crimes” or as “excesses” committed in the course of a conflict, all of the f actors relied on by the
Applicant, taken together , point to the inevitable, overwhelming conclusion that there was a
systematic policy of targeting Croats with a view to the elimination of groups of Croats ( or parts of
groups) as a community within the reg ions concerned. This establishes quite clearly the required
element of a specific intent to destroy a protected group in whole or in part and/or complicity to
commit, or failure to prevent, such destructive acts.
30. The detailed evidence of each of these factors is set out in the pleadings. Key aspects
have been highlighted in the course of this week before this Court. I do not propose to repeat the
detail here. - 22 -
31. Instead, I will focus on three critical issues : (i) context; (ii) patterns of behaviour; and
(iii) opportunity.
(i) Context
32. The context in which the atrocities that ma de out the actus reus of genocide were
committed is clearly relevant to any assessment of the intent behind those atrocities. It is dealt with
in detail in the App licant’s pleaded case and three aspects were highlighted in the first three
speeches before this Court this week namely: first, the dissolution of the former Yugoslavia ;
secondly, the rise of Extremist Serbian Nationalism ; and, third, the Serbian takeover of the JNA,
along with the extension of the JNA ’s direction and control over the Serb irregular forces and
paramilitaries.
33. What is important for the purposes of assessing intent, is an appreciation of how these
developments not only set the scene f or genocide but defined and then fuelled it . In this regard, I
make two broad submissions. First, that political developments, particularly in the period 1986 to
1991, should be seen as a process by which the target group Croats living in territory to be
included in “Greater Serbia” were first identified, then demonized and daubed with collective
guilt for appalling offences, including historical accusations of genocide, and then set aside as a
group apart, leading inevitably to them being attacked as the target group.
34. As Ms Law set out in her speech, the period 1986 to 1991 was a period during which
extreme nationalism began to develop at a rapid pace in Serbia, fanned by vitriolic hate speech . It
was a period during which the initial unfocused ideas of a Serb -only State began to crystalli ze,
accompanied by the build -up of paramilitary forces and their integration into the JNA and/or
activities carried out in concert with the JNA.
35. Much has been said of the SANU memorandum in the pleadings and Ms Law dealt with
it in her speech. The essential significance of this milestone on the journey towards genocide is
that it created a fertile environment for what was to follow . It gave political legitimacy to the idea
of a “Greater Serbia”. That is why it has rightly been called a political firestorm. Fuelled by hate
speech, demonization of Croats and the notion of collective guilt, what was emerging in those years - 23 -
1986-1991 was the clearer and clearer identification of a target group . This was the first stage in
genocide, as Raphael Lemkin observed back in 1944.
36. No doubt some of those involved in the atrocities that you have heard about and that
were to follow might initially have stopped at the simple removal of the target group from “Greater
Serbia”. But the political forces in play were too powerful to stop at that. Having whipped up
extreme hatred of the target group, a darker intention began to evolve . Having set up the Croats in
“Greater Serbia” as a group apart, collectively demonized and collectively guilty, the designs of the
Serbian leadership and the enthusiasm of the paramilitaries turned to destruction rather than mere
removal.
37. The examples of this evolution are many. Three will suffice here. First, the replacement
of the term “mass Ustasha crimes” to describe the crimes committed during the Second World War,
with the term “genocide”. As Ms Law demonstrated in her speech, this demonization of the Croats
as harbouring genocidal intentions against the Serbs, coupled with t he promotion of the idea of the
Serbs as victims, played a significant role in preparing the ground for acts of genocide.
38. Next, the notion of the “amputation of Croatia” : not just the extension of the Serbian
state, but the notion that Croats who stood in the way of the developing Serb ambitions had to be
destroyed. Hence the third example, the speech of a member of the Serb Parliament in April 1991,
and referred to by Ms Law, in her speech, in which at the village of Jagodnjak in Baranja, he
declared that anyone who claimed that the land was theirs “is a usurper, and you have the right to
kill him like a dog” (emphasis added).
39. These ideas took hold . The examples of hate speech are too numerous to list . But
critically they were the leitmotif not just in the build up to the campaign during which the atrocities
were committed, but also in the campaign itself . The Applicant has drawn attention to the very
many examples of ethnically derogatory language used in the course of killing, torture and rape . It
has done so to reinforce the point. This targeted and extreme hatred of the group as a group drove
the subsequent developments and fostered genocide. On its own, it was clearly not enough. And
these events, in history, usually only occur when a series of features or factors come together at a
moment. - 24 -
40. And that brings me to my second broad submission, namely that the Serb takeover of the
JNA, the integration of “ volunteers” within it and t he extension of its direction and control over
Serb irregular forces and paramilitary groups, resulted in a strong, well -armed and equipped
fighting mass which had not only the capacity to carry out the appalling atrocities detailed by the
Applicant, but also the opportunity to give effect to the genocidal intent that was taking hold in its
ranks. This obviously overlaps with my first submission. The political shift and drive towards the
idea not only of creating “ Greater Serbia” but also at the same time of destroying the target group
was wrapped up with the development of extremist paramilitary groups . The two came together.
And when the paramilitaries then became either integrated into or under the direction or control of
the JNA, what came together in 1991 was an explosive cocktail, resulting in a cam paign of
genocide.
(ii) The patterns of behaviour
41. I turn then to the patterns of behaviour. The pattern s of behaviour in the campaign
during which the atrocities making out the actus reus of genocide were committed take their colour
from the overall scale and intensity of the brutality. You have been given the overall numbers. As
Professor Sands has explained, the Applicant has detailed atrocities over hundreds of towns and
villages and multiple municipalities across the other regions in question . The factual speeches not
only shed light on the sheer numbers killed, tortured, subjected to sexual violence or detained in
appalling conditions, but also bring out in stark terms the relentless rhythm of death and
destruction, not only across great areas but over a short and focused period of time.
42. That there were patterns to the behaviour is impossible to refute . The ICTY clearly
identified and recorded them. As Ms Ní Ghrálaigh made clear in her speech on genocidal events in
Eastern Slavonia, the ICTY set out in some detail the “generally similar pattern” of attacks in that
region, Eastern Slavonia, and it also recorded them in the case of Martić and others.
43. Mr. President and Members of the Court, the relevant passages in the ICTY judg ements
have already been brought to your attention. But forgive me for returning to them . I do so for this
purpose: to ask whether the patterns describ ed by the ICTY, when considered together, can - 25 -
sensibly lead to any other conclusion than that there was a genocidal intent behind the acts
described.
44. I will start with the ICTY finding in Mrkšić. It found that the system of attack employed
by the JNA in Eastern Slavonia typically evolved along the following lines . [Plate on] Now this is
a plate that you have seen before, and I do apologize for going back to it, but my purpose is
different. And the pattern is this:
“(a) tension, confusion and fear is built up by a military presence around a village (or
bigger community) and provocative behaviour [and you have seen evidence of that];
(b) there is then artillery or mortar shelling for several days, mostly aimed at Croatian
parts of the village; in this stage churches are often hit and destroyed; (c) in nearly all
cases JNA ultimata are issued to the people of a village demanding the collection and
the delivery to the JNA of all weapons ; village delegations are formed but their
consultations with the JNA do not lead, with the exception of Ilok , to peaceful
arrangements [the exception proving the rule: one of the rare examples where stage
(d) did not follow]; with or without waiting for the results of the ultimata a military
attack is carried out ; and (d) at the same time, or shortly after the attack, Serb
paramilitaries enter the village; wha14then follows varied from murder, killing,
burning and looting, to discrimination” (emphasis added).
I make the obvious point that stages (a), (b) and (c) involve the JNA; stage (d), taking advantage
of the situation, is led by the paramilitaries. And yet it is argued that they were not acting in
concert. [Plate off]
45. Let us concentrate on phases (b) and (d), taking first the artillery and mortar shelling.
46. The evidence that, village by village and town by town, the artillery attack was so grossly
disproportionate as to refute any notion of a military operation is overwhelming . As
Ms Ní Ghrálaigh dealt with, in her speech, there are numerous exa mples. In Bapska, 400 missiles
were fired in one day alone . In Tordinci, 100 missiles in one night. In Sotin, the artillery attack
went on for over a month. Lovas was shelled for ten continuous days, with many dead and
numerous homes destroyed, and Bog danovci was subject to artillery attack for two months and
practically the whole village was destroyed. Professor Sands , too, offered the examples of four
villages: Novo Selo Glinsko, Kostrići, Joševica and Ba ćin. In each of these villages, within a
matter of days, the majority Croat populations were systematically obliterated by paramilitaries,
who entered the villages and killed every Croat they were able to find.
1Mrkšić, Trial Judgement, para. 43. - 26 -
47. And then there is Vukovar . As I demonstrated in my speech on the events in Vukovar,
the artillery attack was so long and intense that it devastated the city in every respect . The ICTY
was crystal clear in its assessment in the case of Mrkšić: [Plate on] And you have the quote there:
“The events, when viewed overall, disclose an attack by comparatively massive
Serb forces, well armed, equipped and organised, which slowly and systematically
destroyed a city and its civilian and milit ar15occupants to the point where there was a
complete surrender of those that remained.” (Emphasis added.)
I underline the words “comparatively massive Serb forces”. And t he words on the plate you have,
are telling. Not only a description of gross disproportionality , but also the use of the word
“destroyed” to describe the effect on the city and its occupants. [Plate off]
48. The same description is apt for many other examples of phase (b) of the pattern of
behaviour identified by the ICTY in Eastern Slavonia. As Ms Ní Ghrálaigh pointed out, the mere
fact that in some cases the besieged villagers refused to surrender in response to the JNA ultimata
does not transform Serbia’s murderous assault on the towns and villages of Eastern Slavonia into a
military engagement. The pattern is compelling . The intention is clear: to destroy parts of a
terrified Croat group. This is an intent that can only be consistent with genocide.
49. Phase (d) of the pattern identified by the ICTY in Mrkšić, only goes to reinforce this
conclusion. This phase is the post -artillery attack phase when the paramilitaries and JNA entered
the villages and towns that they had been shelling . You have heard about the surviving Croats of
Vukovar and how they were taken to orchestrated mass killings and torture . You have also heard
first-hand the story of a witness whose village, in the same region, was subjected to three months of
heavy shelling from August to November 1991. Once the shelling stopped, the JNA entered the
village. Instead of being liberated, people were shot in the street and grenades thrown into
basement shelters, killing men and women who took refuge there. Let us focus on the words used
by the ICTY in Mrkšić to describe this phase : “what then follows varied from murder, killing,
burning and looting, to discrimination”.
50. Murder, killing, burning . Mr. President, Members of the Court, t hese are acts of
destruction. Which of these words is consistent with an intention merely to persuade the terrified,
already attacked by artillery and mortar, target group to leave the area? Moreover, if that were the
1Ibid., para. 470. - 27 -
intention, why the “murder, killing and burning” carried out in relation to those remaining after the
artillery attack? And why did the ICTY so carefully include in the descript ion that the attacks at
phase (d) occurred “with or without waiting for the results of the ultimata” (emphasis added)? The
answer, I would suggest, is that because the outcome o f the ultimata made no difference . The
intent was always to destroy.
51. Similar patterns can be discerned elsewhere in the disputed regions of Croatia. As
Professor Sands demonstrated in his speech on genocidal activities in Dalmatia, Banovina, Western
Slavonia, Kordun and Lika, the ICTY Trial Chamber in the Martić case, having described the
attacks there in question, observed that and this is a quote then from a different case, different
area, different region. [Plate on]
“these attacks followed a generally similar pattern which involved the killing and t he
removal of the Croat population. Furthermore, after these attacks, widespread crimes
of violence and intimidation and crimes against private and public property were
perpetuated against the Croat population . . .” .6
As the free-standing witness evidence presented by the Applicant to this Court shows, as in Eastern
Slavonia, these attacks were usually preceded by grossly disproportionate artillery bombardments.
So, a pattern in a different region. [Plate off]
52. And in Stanišić and Simatović , the ICTY came to similar conclusions. As in
Professor Seršić’s speech focusing on the villages of Škabrnja and Saborsko, she references the
ICTY findings that the attack on Škabrnja began with heavy shelling involving cluster bombs and
incendiary devices. Equally in Saborsko, 150 km away, the same pattern: from early August 1991,
this small village was shelled on a daily basis for three months.
53. What followed in both villages was cold-blooded murder. Mr. President and Members of
the Court, you have heard the details . But here a broader question arises : how can these acts,
typical across all regions in question as a pattern village after village, town after town be
reconciled with an intention short of genocide, or steps taken to prevent genocidal acts? The
Applicant’s answer is clear. They cannot.
54. This part of my analysis, which picks up on the last phase of the pattern described by the
ICTY in its findings and replicated in the free -standing evidence presented by the Applicant —
1Martić, Trial Judgement, para. 443. - 28 -
namely the physical attacks by the JNA and paramilitaries as they entered the villages and towns —
takes me to the issue of opportunity, to which I now turn.
(iii) Opportunity
55. There can be no dispute that , as the JNA and paramilitari es entered the villages and
towns that they had been bombarding, they engaged in widespread and systematic acts of torture,
murder and sexual violence . I have already referred to the chilling roll -call of death and
destruction described by my colleagues in their speeches yesterday morning. The examples are too
numerous to recite in detail. Instead I will concentrate on four examples, ranging from a large and
significant city to a tiny village . My purpose is to lay bare what happened when the advancing
Serbs were presented with an opportunity either to move their hapless bombarded victims on, to
expel them, or to destroy them . The result was the same in almost every case. They took their
opportunity and they destroyed them.
56. The examples are: Vukovar, Lovas, Škabrnja and Saborsko.
Vukovar
57. As I made clear in my speech on Vukovar, in the unfolding events there came a point
after the siege and before the terrible events at Velepromet and Ovčara, when the raw intention of
the advancing Serbs came to be tested . The city was on its knees, the population defenceless and
captive. You have heard what happened next . If the aim was merel y to displace the population,
there would be no need to engage in systematic mass killing, repeated torture, brutal rapes, etc.
There was a window of opportunity i n mid-November 1991 18-21 November 1991 that
window was slammed firmly shut.
Lovas
58. The event s in Lovas in October 1991 have been spelt out by Ms Ní Ghrálaigh and
Professor Lapaš in their speeches. As was emphasized, even against the horrors elsewhere, the
atrocities meted out to the defenceless population of Lovas stand out for their brutality.
59. You have heard that Lovas was shel led by the JNA every day for ten days. The village
devastated, hundreds of homes destroyed. Twenty-three (23) civilians killed in the initial stages, - 29 -
including executions by firing squad. Then and this is the opportunity point all the Cro at
males between the ages of 18 and 65 remaining were rounded up, beaten, and subjected to the
“minefield massacre”; you have heard the details. As in Vukovar, a window of opportunity a test
of intent, an opportunity to displace, not to destroy. As in Vukovar, the window of opportunity
slammed firmly shut.
Škabrnja and Saborsko
60. The events in Škabrnja and Saborsko have already been dealt with in some detail and so I
can be very brief . In each village, the advancing forces saw an opportunity to destroy their
defenceless and captive Croat victims. And they took it ; unarmed elderly civilians were no
exception. This was not just ethnic cleansing, but the elimination of the Croat population.
61. The ICTY in Martić found that the killing of 69 Croats in Škabrnja amounted to
17
murder . It also found that in Saborsko, Croat victims were taken around the side of a house and
executed 18. As with Vukovar , as with Lovas, given the choice, the advancing forces took the
opportunity to destroy.
Conclusion on this point
62. There are two reasons why the evidence on opportunity is so important . First, because it
is so consistent . Across all the regions in question, the result was the same. Example after
example of defe nceless and captive Croat victims being killed, tortured or subjected to extreme
sexual violence . Mr. President and Members of the Court, the Applicant submit s that such
consistency entitles this Court to draw strong inferences about the true intent of those perpetrating
such atrocities. The intent was genocidal, and steps were not taken to prevent the atrocities
committed.
63. The second reason why the evidence on opportunity is so important is because it refutes
any suggestion that because some or most Croats living in the disputed regions ultimately survived,
albeit in many cases after being subjected to terrible abuse, a genocidal intent cannot be made out .
But, as you have heard, proving genocidal intent is not a numbers game . The opportunity
1Martić, Trial Judgement, paras. 386-392.
1Ibid., paras. 230, 379. - 30 -
presented to the perpetrator is highly significant , and what happened when that opportunity was
presented is obviously important. The fact that many Croats fled before the advancing forces could
destroy them, or were saved by isolated examples of great courag e by individual JNA officers and
soldiers, cannot alter the evidence about what actually happened when the advancing Serbs were
presented with opportunities to destroy not displace: they took them. And a part of the group was
destroyed.
(iv) Conclusion on context, patterns of behaviour and opportunity
64. In the absence of documentary evidence setting out a clear plan of genocide, the evidence
of these patterns of behaviour and opportunity are critical to any assessment by this Court, of
intent. The international tribunals have made clear that a genocidal intent can be inferred from
“pattern[s] of purposeful action”. The Applicant submits that all the evidence in this case points to
such a “pattern of purposeful action”.
65. Mr. President, Members of the Court, you will recall the slide that I put on your screens
yesterday, from the case of Kayishema and Ruzindana about the patterns of intent. It is our
submission that every single feature identified by the ICTR as relevant in discerning a genocidal
intent is made out in this case: first, physical targeting of the group or their property that is
undeniable; second, the use of derogatory language towards members of the group undeniable;
the weapons employed and the extent of bodily injury you have heard the evidence; the
methodical way of planning and systematic manner of the killing again, you have heard the
evidence; and the number of victims from the group you have those numbers . If those are
important features in establishing a patter n from which inferences can be drawn, then each of them
is made out in this case.
66. It is no answer to this evidence of clear -cut patterns of behaviour but if every attack is
taken in isolation, the numbers destroyed on each occasion vary and in some cases are low . First,
because the overall numbers, when all the atrocities are considered together, is, in fact, high.
Second, because the numbers destroyed on each occasion have to be assessed in light of the
opportunities that arose, by reference to the group that was targeted in thearea or village. - 31 -
67. Mr. President, Members of the Court, I have spent some time in my submissions on the
pattern of conduct focusing on artillery attacks, and the atrocities committed by the advancing Serb
forces as they took each village and each town in the region which was intended to be “ Greater
Serbia”, and I have highlighted the killings that ensued. But let me also address the fate of those
who were not killed.
68. This was dealt with in some detail in the submissions yesterday morning, in particular the
speech of Professor Crnić-Grotić. So far as the sexual violence is concerned, her submission,
which she made good with example after example, was that gang -rapes of Croat women were
commonplace. Many of the attacks she listed took place in the victims ’ homes, in public or in
detention camps. And as she made clear, sexual violence has been recogni zed by the U nited
Nations Security Council as an act capable of being a constitutive act with regard to genocide.
69. The recital of the evidence of widespread and systematic torture was no less gruelling .
Brutal and often sadistic violence perpetrated repeatedly over a wide area . The findings of the
ICTY were brought to the Court’s attention and they speak for themselves.
70. And wha t of those detained? Their fate was also detailed in the speech of
Professor Crnić-Grotić. Over 7,700 Croatian citizens were held in detention camps in occupied
Croatia, in Serbia and elsewhere. Based on the evidence before th is Court I can do no better than
to adopt the description used yesterday morning : incarceration was always a prelude to severe
beatings and ill-treatment, in many cases sexual violence, and in some cases summary execution.
71. Then, of course, there are the many tens of thousands who fled from the occupied regions
in fear of their lives.
72. All of these acts come within, and have to be seen in the context of, the 17 factors relied
on by the Applicant as constituting genocide when taken together . Killing, torture, abuse, sexual
violence, detention camps, and terrified fleeing. The relentless evidence from each village, each
town and each community across the areas earmarked for “Greater Serbia” reveals vignette after
vignette of the cumulative effect of these factors operating on the Croa tian people living there.
Taken together, we submit, this is powerful and compelling evidence of genocide. - 32 -
73. In the Bosnia case, this Court distinguished between the destruction of a group and its
19
“mere dissolution” . It is the Applicant’s submission that it is impossible to describe the striking
patterns of behaviour and the widespread taking of opportunities to destroy Croats living in the
areas to be included in “ Greater Serbia” as in any way consistent with the “mere dissolution” of
that group. The evidence does not show “mere dissolution”. Mere dissolution would have been
achieved by rounding up the groups and transporting them to other places . That did not happen.
Instead, the evidence shows systematic destruction deliberately perpetrated by the Serb forces, JNA
and the paramilitaries against the group of Croats in issue.
(f) The lack of ICTY genocide convictions
74. The Respondent makes much of the fact that the ICTY has not convicted anyone for the
crime of genocide in the cases relied upon by the Applicant as supportive on the facts.
75. In my speech on Tuesday on evidence and issues of proof, I set out why the Applicant
submits that, in the circumstances of this case, a prosecutorial decision not to prosecute for
genocide should be given no probative value in respect of State responsibility. I do not repeat those
submissions here.
76. This Court of course has a different and much wider role . It has also a number of
significant advantages.
(1) First, this Court can underta ke a holistic assessment of the conduct of all the relevant players
and all the relevant events on the totality of the evidence.
(2) Second, this Court has not only the advantage of all the “highly persuasive” findings of the
different ICTY cases, but also has the advantage of other evidence which was not before the
ICTY at all.
(3) And third, this Court is concerned with S tate responsibility not individual responsibility : the
cumulative impact of multiple acts systematically perpetrated by multiple actor s on a large
section of the population over a wide geographical area, not a small segment or puzzle piece in
a much larger picture.
1Bosnia, p. 123, para. 190. - 33 -
(g) Conclusion on the specific intent for genocide
77. Mr. President, Members of the Court, the ICTY findings relevant to the issues before this
case and the free-standing evidence presented by the Applicant establish a very large number of
separate genocidal acts committed across the identified regions during the period 1991 onwards .
The Applicant submits that they show a consistent pattern of conduct which can lead to only one
conclusion about the intention underlying them.
78. Applying the test expounded by this Court in the Bosnia case, the facts of this case,
prove conclusively that the Serbs perpetrating the atrocitie s which make out the actus reus of
genocide harboured an intention to eradicate groups of Croats living in the areas to be included in
“Greater Serbia”, through a combination of crimes including murder on a wide scale, and the
infliction of persecution and destruction of property. The Applicant submits this is sufficient to
constitute the specific intent for the crime of genocide.
79. Sometimes a small detail is very revealing. No doubt the descriptions used by the
perpetrators to describe their understa nding of what they were doing , on their own, would not
prove a case such as this. But they are very telling. As you have heard from Professor Sands, the
JNA military intelligence report of 13 October 1991 recorded that in “the greater Vukovar,
volunteer troops under the command of Arkan . . . are committing uncontrolled genocide and
20
various acts of terrorism” . Their description in an intelligence briefing “uncontrolled
genocide”. Elsewhere, a different area, testimony of a Serb TO fighter describ ing the assault on
Saborsko, and this testimony includes the passage where he explains that , his words describing
what happened, “After Saborsko was conquered , . . . [the TO commander] spent some time there,
he issued orders to liquidate the people as well as orders to steal the properties.” 21 A TO fighter
describing what he was being asked to do. And another former TO fighter has described how, in
Četekovci, his words, “[t]he order to commit genocide against the civilian population” was issued
22
by the TO commander . These are descriptions indeed, admissions of destruction, nothing
less. They are explicit, contemporaneous accounts of genocidal i ntent being acted upon. That
20
RC, para. 9.86 (1).
2MC, Vol.2 (II), Ann. 365; emphasis added.
2MC, Vol.2 (II), Ann. 198. - 34 -
those perpetrating the atrocities in issue thought that they were involved in genocide speaks
volumes.
V. Failure to prevent genocide
80. Mr. President, Members of the Court, a s noted at the outset of this speech, all the
arguments I have made and the evidence I have highlighted apply equally to responsibility for
failure to prevent, and responsibility under the doctrines of complicity, conspiracy and attempt.
81. Article I of the Genocide Convention imposes two distinct y et connected positive
obligations to prevent and punish genocide. The first obligation requires the S tate to take all steps
within its power to ensure that those within its jurisdiction or subject to its control (whether public
officials, members of the armed forces or private individuals) do not commit the crime of genocide.
The second obligation is to ensure that the perpetrators of genocide and related acts are punished.
82. The obligation to prevent acts of genocide depends on proof that acts of genocide have in
fact occurred, and focuses on the S tate’s responsibility for failure to intervene . Obviously i f this
Court finds that the Applicant has proved its primary case then it is unnecessary to go on to
consider the alleged breach of the duty to pr event acts of genocide. But, if not, failure to prevent
acts of genocide takes centre stage in the Applicant’s argument.
83. The legal framework was dealt with by Professor Sands in his speech on Tuesday. Given
the close co-operation between the JNA and the Serbian forces (including volunteer paramilitary
forces) of the autonomous Serb authorities, and in particular given the findings of the ICTY in the
cases of relevance to the issues before this Court that all military operations were conducted under
the effective command of the JNA, the Applicant submits that if the Court were to hold that Serbia
is not responsible for the commission of, or complicity in, the acts of genocide, it is n onetheless
responsible for a failure to prevent genocide.
84. There can be no doubt that the JNA military hierarchy, and Serb political leadership,
were fully aware of a serious risk that acts of genocide were being, or were about to be, committed .
In its Reply, the Applicant gives the example of the activities of the “S erbian Guard” in Eastern
Slavonia. Three military intelligence reports in October 1991, which expressly refer to acts of
genocide and instructions to volunteers to kill everyone found in Croat houses “including children, - 35 -
23
elders, disabled people, [and] wom en” , demonstrate clearly that, from at least from
13 October 1991, the JNA leadership and political leadership in Serbia, were aware of the activities
of Arkan’s paramilitaries, and were aware that they were committing acts that they themselves
characterized as genocidal.
85. In light of the ICTY findings in Mrkšić, there can be no doubt that the JNA had the
capacity to prevent this ; the military capabilities of the JNA far outweighed those of the
paramilitary groups , including Arkan. In reality, without JNA collaboration or consent, the
paramilitary groups, including Arkan, would have been unable to mount sustained attacks on the
Croat civilian population. The Trial Chamber in the Mrkšić case found that the JNA had the
“military might to enforce” its effective command and control of “volunteer or paramilitary units
fighting in the Serb cause” even though it and this is the ICTY “may have been reluctant to
24
be too heavy handed in doing so” . So they are finding, they had the military to do it, but they
may have been reluctant. Given the military capa bility of the JNA, its failure to intervene to
prevent genocide, in our submission, amounts to a breach of Article I of the Genocide Convention,
a breach which is attributable to Serbia.
86. More generally, as Professor Sands in his overarching speech demonstrated, the evidence
that Serb paramilitaries operated with the full knowledge, direction and active control of the Serb
authorities is consistent and compelling.
87. Although in its defence the Respondent points to instances where individual JNA
soldiers intervened to save Croat civilians from imminent execution or torture, and no one would
take away from the courage of those individual soldiers, as Professor Sands exposed, these isolated
examples only serve to reinforce the extent of the JNA ’s knowledge of and control over the
atrocities committed by paramilitary forces.
VI. Conspiracy, attempt and complicity
88. I turn briefly to conspiracy, attempt and complicity. Again, t he international legal
framework was set out by Professor Sands and I do not repeat it.
2RC, para. 9.86 (2).
2Mrkšić, Trial Judgement, para. 89. - 36 -
89. It is the Applicant’s case that the findings of the ICTY clearly establish that there was a
conspiracy between Serb leaders to commit crimes against humanity involving widespread and
systematic attack on groups of Croats through the perpetration of acts prohibited by ArticleI of the
Convention. When the findings of all relevant [ICTY] judgements are considered together with the
free-standing evidence provided by the Applicant to this Court, it is clear that the conspiracy had as
its objective genocide.
90. Equally, the ICTY findings clearly establish complicity. The only question is the
intention required of the State to trigger liability. As the Applicant set out in its pleadings, a person
is guilty of complicity in genocide if they plan, order, aid or abet, or provide the means to enable or
facilitate the commission of the crime of genocide, knowing that that was the principal
perpetrator’s intention, namely, to destroy a protected group in whole or in part.
91. When the findings of a ll the ICTY judgements are considered together , again with the
free-standing evidence, in particular the evidence about the acts of Serb paramilitary groups, it is
clear they not only had as their intention to destroy the Croat civilian population living i n the areas
claimed as “Greater Serbia”, but also that the JNA and Serb political leadership were well aware of
that intention.
VII. Failure to punish
92. Finally, I turn to failure to punish. The importan ce of the obligation in Article I of the
Genocide Convention to punish acts of genocide is reflected throughout the Convention’ s
provisions. In this case the Respondent had failed to surrender a number of high- profile suspects
when the Applicant submitted its Memorial. Since then, although there have been surrenders, these
have been delayed over many years in breach of the obligation clearly set out in Article IV of the
Genocide Convention.
Mr. President, Members of the Court, that brings to an end this speech. Thank you for
listening to these submissions. With your permission, I will now hand over to Professor Crawford,
to deal with the question of jurisdiction but it may be convenient if that commences after the break.
The PRESIDENT: Thank you, Sir Keir. The Court is now going to take a 15 -minute break.
The hearing is suspended. - 37 -
The Court adjourned from 11.25 a.m. to 11.40 a.m.
The PRESIDENT: Please be seated. The hearing is resumed and I invite
Professor Crawford to address the Court. You have the floor, Sir.
Mr. CRAWFORD:
JURISDICTION OVER EVENTS BEFORE 27 A PRIL 1992
I. Introduction
1. Thank you, Mr. President. Mr. President, Members of the Court, in his separate opinion
on preliminary objections in the Bosnia case, Judge Shahabuddeen noted that if Serbia’s arguments
in that case were correct, they would “lead in one way or another” to “an inescapable time -gap” in
the protection afforded by the Genocide Convention to the people in the former SFRY. [Screen
on] In his words:
“It is difficult to appreciate how the inevitability of such a break in protection
could be consistent with a Convention the object of which was ‘on the one hand . . . to
safeguard the very existence of certain human groups and on the other to confirm and
endorse the most elementary principles of morality .’ . . . [T]he object and purpose of
the Genocide Convention required parties to observe it in such a way as to avoid the
25
creation of such a break in the protection which it afforded.”
2. I am going to explain why Serbia ’s jurisdictional arguments in this case are wrong as a
matter of law and would undermine the effectiveness of the Convention 26. Yet again they would
result in “an inescapable time- gap”. Serbia now claims that it only came into existence on
27 April 1992 and was not bound by the Convention before then. Alternatively, it says that Croatia
only came into existence on 8 October 1991 and cannot raise claims based on facts before then.
Either situation, Serbia asserts, would require the Court to apply the Convention ret roactively,
contrary to Article 28 of the Vienna Convention on the Law of Treaties. But in fact the opposite is
true. Either situation would frustrate the object and purpose of the Convention, as interpreted in
accordance with the law of treaties, and would do so precisely in the circumstances where atrocities
2Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II) , p. 635, separate opinion of
Judge Shahabuddeen.
26
See further Reply of Croatia (RC), Ch. 7. - 38 -
such as genocide are most likely to occur. It would open up the possibility that acts of genocide for
which States are responsible erga omnes could be committed with impunity in circumstances of
State dissolution or dysfunction . It would reduce the Convention to a hortatory instrument
applicable only to States at peace with themselves and each other . That would be an extraordinary
result. [Screen off]
3. Mr. President, Members of the Court, I have already addressed you on the issues of
attribution. The se issues and that of the temporal application of the Convention are factually
interconnected, though analytically distinct. What I showed earlier is that certain conduct is
attributable to Serb ia, including conduct before 27 April 1992 while it was in statu nascendi .
When I did that, I left jurisdiction with respect to that period aside . You also left it aside at the
preliminary objections stage, on the ground that it did not have an exclusively preliminary
character 27. I am now going to make two main points . First, the substantive obligations of the
Convention apply to conduct by Serbia during the entire period of the dispute. Secondly, the Court
has jurisdiction ratione temporis in respect of that entire period.
II. Jurisdiction ratione personae
4. Mr. President, Members of the Court, before I come to those points, let me briefly discuss
jurisdiction ratione personae. This was dealt with at the preliminary objections stage. But it is
important to recall that the Court’s jurisdiction over Serbia in this case arises from succession to the
Genocide Convention rather than accession. In other words, it arises by reason of an existing
obligation that continued in effect rather than from one newly entered into.
5. When Serbia pu rported to “ accede” to the Convention on 12 March 2001, it made a
reservation with respect to Article IX. But as you pointed out, even if that reservation were
effective, it would be irrelevant to the jurisdiction already invoked by Croatia 2. In its Application
filed in 1999, Croatia invoked jurisdiction on the basis that the SFRY was a party to the Genocide
Convention and that Serbia was bound by it as a successor S tate to the SFRY 29. I will not repeat
27
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (CroatSerbia),
Preliminary Objections, Judgment,I.C.J. Reports 2008, p. 460, para. 130; hereafter Croatia.
28Croatia, Preliminary Objections, p. 445, para. 94.
29
Application, para. 28. - 39 -
the complex history of Serbia ’s claim to constitute the personality of the SFRY or Croatia ’s
arguments as to its legal effect. Having dealt with that issue a number of times, the Court has no
doubt heard enough of it. I will limit myself to summarizing your conclusion at the preliminary
objections stage. Taking into account the text of Serbia ’s declaration and note of 27 April 1992
and its “consistent conduct . . . at the time of its making and throughout the years 1992–2001”, you
held that from that date it had accepted that it would be bound “in respect of all the multilateral
conventions to which the SFRY had been a party at the time of its dissolution ” I emphasize
those last words including the Genocide Convention 30. You also held that this situa tion
continued until at least 1 November 2000, when Serbia became a party to the Statute of the Court,
with the result that the Court has jurisdiction ratione personae over Serbia on the basis of
31
succession to the Genocide Convention . This remains the principal ground on which Croatia says
you have jurisdiction.
6. You commented then that in light of the declaration of 27 April 1992 and Serbia ’s
consistent conduct, you did not need to consider whether Serbia would have succeeded to the
32
Genocide Convention ipso iure in any event . Every indication, however , is that it would have
done so. The relevant principle is recognized in the Vienna Convention on State Succession in
Respect of Treaties, to which the SFRY was a party 33. In the Čelebići case, the ICTY Appeals
Chamber considered whether Bosnia -Herzegovina had succeeded to the Geneva Conventions .
30Croatia, Preliminary Objections, pp. 454–455, para. 117; emphasis added.
31
Croatia, Preliminary Objections, p. 455, paras. 118–119.
32Croatia, Preliminary Objections, p. 455, para. 117.
33Vienna Convention on State Succession in Respect of Treaties , 23 Aug. 1978, 1946 United Nations, Treaty
Series (UNTS) 3, Art. 34:
“(1) When a part or parts of the territory of a State separate to form one or more States, whether or not the
predecessor State continues to exist:
(a) any treaty in force at the date of the succession of States in respect of the entire territory of the
predecessor State continues in force in respect of each successor State so formed;
(b) any treaty in force at the date of the succession of States in respect only of that part of the territory
of the predecessor State which has become a successor State continues in force in respect of that
successor State alone.
(2) Paragraph 1 does not apply if:
(a) the States concerned otherwise agree; or
(b) it appears from the treaty or is otherwise established that the application of the treaty in respect of
the successor State would be incompatible with the object and purpose of the treaty or would
radically change the conditions for its operation.” - 40 -
Bosnia-Herzegovina had made a declaration that could have been regarded as a notification of
succession. [Screen on] But the ICTY was
“of the view that irrespective of any findings as to formal succession, Bosnia and
Herzegovina would in any event have succeeded to the Geneva Conventions under
customary law, as this type of convention entails automatic succession, i.e., without
the need for any formal confirmation of adherence by the successor State. It may now
be considered in international law that there is automatic State succession to
multilateral humanitarian treaties in the broad sense, i.e., treaties of a universal
34
character which express fundamental human rights.”
7. Similarly, the Badinter Commission emphasized the need for all human rights treaties to
which the SFRY was party to remain in force with respect to all of its territories 35. The
Commission did not identify or foresee any time gap. The same view has been taken by the United
Nations Human Rights Committee. [Next graphic] Civil and political rights, it has commented,
“belong to the people living in the territory of the State party . . . [O]nce the people
are accorded the protection of the rights under the Covenant [ it was the Covenant on
Civil and Political Rights], such protection devolves with the territory and continues to
belong to them, notwithstanding change in Government of the State party, including
36
dismemberment in more than one State or State succession . . .”
8. [Screen off] The ICTY noted in the Čelebići case that Bosnia- Herzegovina had
“recognised” the principle before this Court by contending that the Genocide Convention falls
37
within the category of instruments to which it applies . There can be no doubt that this is so.
Even if Serbia would not have succeeded to the Convention ipso iure, its declaration still had much
the same effect : that effect was that Serbia was bound from the moment it came into existence .
There was no period during which it was not bound as a State.
9. Our submission then is that the Genocide Convention accords jurisdiction to this Court
over conduct before 27 April 1992. Only jurisdiction exercised on that basis would resolve the
problem of a time gap in the protection afforded by the Convention. But in case of any doubt on
this point, I should mention that there would still be an alternative ground for jurisdi ction over
conduct predating 27 April 1992 in this particular case. This is Serbia’s declaration on that date. It
34
Prosecutor v. Zejnil Delalić, 20 Feb. 2001, IT-96-21-A (Čelebići), para. 111.
35Arbitration Commission, EC Conference on Yugoslavia (Badinter, Chairman), Opinion No. 1, 29 Nov. 1991,
92 ILR 162.
36Human Rights Committee, General Comment 26, General Comments under Art . 40 (4) of the International
Covenant on Civil and Political Rights, adopted by the Committee at its 1631st meeting, paras. 3–4.
37
Čelebići, para. 111, n. 137. - 41 -
declared that it “continu[ed] the state, international legal and political personality of the [SFRY]”
and that it “shall strictly abide by all the commitments that the [SFRY] assumed internationally” 3.
Its note to the U nited Nations similarly affirmed that it “shall continue to fulfil all the . . .
39
obligations assumed by [the SFRY] in international relations” . Of course, Serbia’ s claim to
continue the legal personality of the SFRY was eventually abandoned. But its declaration that it
would assume the international obligatio ns of the SFRY still constitutes a binding unilateral
40
declaration . It was not conditional . Serbia did not say : “If and insofar as individual states
recognize us as continuing the legal personality of the SFRY, we will comply with the SFRY ’s
international obligations towards such states.” It affirmed its then position that it was the
continuation of the SFRY and it additionally affirmed that it would continue and fulfil the SFRY ’s
legal obligations “in international relations” generally. It did not reduce international relations to a
mass of bilateral r elations refracted through the cracked mirror of the former Yugoslavia. Nor
should this Court do so.
10. Accordingly, if, contrary to our submissions, the Court were to find that some or all of
the conduct in breach of the Convention was not attributable to Serbia but to the SFRY, and even if
it identified some , for example, limit on the substantive obligations in the Convention, Serbia
would still have assumed responsibility for such conduct attributabl e to the SFRY before
27 April 1992. Its own binding unilateral declaration precludes it from arguing otherwise.
III. Jurisdiction ratione temporis
(1) Obligations generally applicable to a nascent State
11. Mr. President, Members of the Court, I now turn to the question of temporal jurisdiction,
properly so called.
12. Serbia accuses Croatia of arguing for a form of retroactivity . Th e characterization is
misleading, and the authorities Serbia cites to refute it are largely irrelevant . On Croatia’s case,
whatever the basis of jurisdiction ratione personae, the situation is characterized by continuity .
38
Joint Declaration of the SFRY Assembly, the National Assembly of the Republic of Serbia and the Assembly of
the Republic of Montenegro, 27 April 1992, U nited Nations doc. A/46/915, Ann. II.
39Joint Declaration of the SFRY Assembly, the National Assembly of the Republic of Serbia and the Assembly of
the Republic of Montenegro, 27 April 1992, United Nations doc. A/46/915, Ann. I.
40
See Nuclear Tests (Australia v. France), I.C.J. Reports 1974, p. 253, paras. 43–51. - 42 -
The binding unilateral declaration was expressed in terms of continuity with the obligations of the
former SFRY and leaves no doubt that Serbia intended t o bind itself in respect of earlier conduct .
Similarly, if jurisdiction is exercised on the basis that Ser bia succeeded to the SFRY as a p arty to
the Genocide Convention, then the obligation is also continuous . So Croatia is not seeking to
surprise Serbia by extending the effect of some entirely new obligation back into the past . The
situation differs markedly from that of accession, real or contrived . Succession to a treaty applies
to the successor State from the very inception of that State. And if the inception of a State involves
a process, as commonly it does, it applies throughout that process. It is a form of transmission of
existing legal obligations in the real circumstances of international relations, and not, as I said
yesterday, in relation to a succession of companies registered in New York. It is not a mode of
acquiring new obligations, it is a mode of accepting existing ones. The rationale of this rule of
succession would be defeated if there was any period during which conduct was attributable to a
nascent State but the nascent S tate was not bound by treaties that it succeeded to on formally
proclaiming its existence. Succession is a framework, not a vacuum.
13. So what international obligations are applicable in respect of conduct wh ile a State is in
statu nascendi? Serbia claims to have a simple answer to that question: that “the insurrectional or
other movement must itself have committed a violation of an applicable rule of international
law” 41. It adds that Croatia ’s case is inco mpatible with the unilateral declarations that national
liberation movements may make under the Geneva Conventions to widen the applicability of
42
international humanitarian law . But this is a misunderstanding of Article 10 (2) of the Articles on
State Responsibility, and it is a fundamental misunderstanding.
14. The rule reflected in Article 10 (2) is not concerned with the responsibility of a
movement qua movement whether or not it succeeds . It is concerned with the conduct of a
movementqua State in embryo conduct by a movement that eventually attains statehood, which
international law treats as conduct of the State and as subject to the international obligations of that
State, from the beginning. The ILC commentary recognizes this distinction when i t observes that
an “insurrectional movement may itself be held responsible for its own conduct under international
4Counter-Memorial of Serbia (CMS), para. 346.
4CMS, paras. 346–350; Rejoinder of Serbia (RS), para. 182. - 43 -
law, for example for a breach of international humanitarian law”, but “the international
responsibility of unsuccessful insurrectional or other movements” falls outside the scope of the
43
Articles, “which are concerned only with the responsibility of States” . Professor Ago’s draft
commentary, or perhaps I should say more accurately the ILC’s draft commentary inspired by
Professor Ago, on which Serbia seeks to rely, took the same position . It said: “the question arises
in the same way in cases where the insurrectional movement, at a given time in the struggle,
constituted an entity which was liable as such to have international responsibility attributed to it,
and in the case where that ‘intermediary’ phase did not occur” 4. In other words and with Ago’s
commentary one often has to use other words Article 10 (2) may apply even where the
movement was never capable of attracting any international responsibility qua movement. In even
clearer terms, the draft commentary added (this was the draft commentary of 1996): “[i]t does not
therefore seem entirely correct to refer to these possible cases as though they were cases of State
responsibility ‘for wrongful acts of an insurrectional movement’” 45.
15. It is international obligations of the State that apply to conduct attributable under
Article 10 (2). And there must be such obligations or there would be no point in having a rule of
attribution, and there would be a vacuum. It is submitted that the same functionalist approach that
underpins Article 10 (2) the same common sense applies here. The applicable obligati ons
are the obligations of the S tate that are capable of applying in respect of that period. There is no
reason in principle to distinguish between treaty and cus tomary obligations that bind a State at the
moment it comes into existence, and especially where the State succeeds to treaties “of a universal
46
character which express fundamental human rights” .
16. Mr. President, e ntirely peaceful transitions, well organized, happening at a precise
moment in time such as that from Czechoslovakia at the end of 1992 may be deemed to have
occurred at a single moment, although even in such cases problems can arise. But when new States
are born in conflict and disruption, the need for a continuing legal framework is even more
43
Commentary to the Articles on the Responsibility of States for Internationally Wrongful Acts, Yearbook of the
International Law Commission (YILC) 2001, Vol II (2), Art. 10, para. 16.
44YILC, 1975, Vol. II, pp. 101–102, para. 8.
45YILC, 1975, Vol. II, p. 101, fn. 269.
46
Čelebići, 20 Feb. 2001, IT-96-21-A, para. 111. - 44 -
pressing. If such States are considered as born in a vacuum, legal accountability will disappear. So
will legal protections, precisely when they are needed most.
17. Of course, the application of a treaty to conduct by a nascent State is subject to the terms
of the treaty. I will now establish that there is no applicable temporal limitation in the Genocide
Convention. On the contrary, its object and purpose suggest that it was designed to avoid the
creation of any time gap and that it would apply to conduct by a nascent State even if that result did
not already follow from general principles of succession and continuity.
(2) Temporal scope of the substantive provisions of the Convention
18. I turn, then, to the substantive obligations of the Convention.
19. The fundamental point here, and it has been recognized by this Court as long ago as in
1951, is that the Convention is not a synallagmatic bargain creating a diffuse bundle of bilateral
rights and obligations between S tates parties. It was specifically designed to apply as broadly as
possible, both substantively and in its provision for international dispute se ttlement.
Professor Sands has discussed its development and noted the position you took in 1951. An
important point is that the Convention regulates a crime that was conceived of as already existing
in international law. Thus the preamble refers to the General Assembly’s declaration in 1946 “that
47
genocide is a crime under international law . . . condemned by the civilized world” . In the words
of Article I of the Convention: “[t]he Contracting Parties confirm that genocide, whether
committed in time of peace or in time of war, is a crime under international law” 48. Confirm. In
1951 you reiterated that the principles of the Convention bind S tates “even without any
conventional obligation” and that the Convention was intended to be “definitely universal in
49 50
scope” . In Bosnia, you confirmed that the obligations under it are obligations erga omnes .
20. On Wednesday, Judge Cançado Trindade asked about the relevance of the case law of
international human rights tribunals for the international responsibility of States for genocide. The
47
Genocide Convention, preambular para. 1; emphasis added.
48Genocide Convention, Art I; emphasis added.
49Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23.
50
Bosnia, Preliminary Objections, p. 616, para. 31. - 45 -
short answer is that it is fully consistent with these principles. In your separate opinion in the Plan
de Sánchez Massacre case in the Inter -American Court, you, Judge Cançado Trindade, affirmed
that the Convention reflects a principle of customary international law that binds S tates in any
event 51. You also pointed out that the prospect of individual criminal responsibility before
tribunals such as the ICTY does not replace but co -exists with State responsibility, and that “this is
52
of crucial importance for the eradication of impunity” .
21. Serbia claims that the Convention was enacted “to secure that no future instances of
53
genocide will take place” emphasizing the word “future” . That argument conflicts both with
the declaratory character of the Convention and with its express extension to the punishment as
well as the prevention of genocide. Serbia argues: “this is not a case about compliance with
customary obligations governing questions of genocide, even where the treaty -based prohibition
and the customary international law prohibition . . . are identical insofar as their content is
54
concerned” . The distinction is merely apologetic and it takes Serbia nowhere. The concept of
genocide is identical in custom and tre aty. What the Convention added was an authori tative
definition of “genocide” one that has never been questioned since, in principle and a
framework for international co -operation, and it did so erga omnes from the date of its entry into
force.
22. Of course, the Convention also accords jurisdiction to the Court. But this issue is
separate from the temporal scope of the substantive obligations to prevent and punish genocide .
Serbia seeks to conflate the two issues when it says: “even if the content of the prohibition . . .
under customary international law and in the Convention is identical, it is the Convention that
brought fundamental changes as to the enforcement of the prohibition” 55.
23. But the obligation to prevent and punish genocide is capa ble of encompassing genocide
whenever occurring, rather than only genocide occurring in the future, after the Convention enters
51Plan de Sánchez Massacre v. Guatemala, Inter-American Court of Human Rights, 29 April 2004, separate
opinion of Judge Cançado Trindade, para. 26.
52
Ibid., para. 39.
53CMS, para. 237; emphasis in the original.
54CMS, para. 211.
55
CMS, para. 247. - 46 -
into force for a particular State. As you have twice observed at the preliminary objections stage
in Bosnia and the preliminary objections stage in this case there is no express limitation ratione
56
temporis in the Convention . It is to be distinguished from such cases as Ambatielos, which Serbia
cites for the proposition that “ [i]n order to prove a retroactive application . . . one would have to
find . . . either ‘ a different inte ntion appearing from the treaty’ or such an intention being
‘otherwise established’” 57. Well, Ambatielosconcerned a commercial claim, not a claim for breach
of an erga omnes obligation, and not one under a multilateral human rights treaty falling within the
category identified by the ICTY in the Čelebići case. The Convention evidences an object and
purpose as identified by Judge Shahabadeen 5, amongst others requiring States to avoid the
creation of a time gap of the kind that would exist if Serbia were not bound by it while in statu
nascendi. Serbia asked in its Rejoinder what legal sign ificance Croatia attaches to this
59
apprehension of a time gap . The apprehension is of impunity, impunity of the responsible State
when the individuals responsible have passed into history.
24. Mr. President, Serbia, relying on comments that you made in these proceedings, argues
that there is no prospect of a gap or hiatus in the protection, since the customary prohibition on
genocide continued to apply and the SFRY remained party to the Convention so long as it
60
continued to exist . But the case we have made is that the relevant conduct was conduct of the
JNA or under its direction and control, and that the JNA was at that time a de facto organ of the
nascent Serbian State. The apprehended gap in protection is a gap in protection from acts by those
de facto organs of a nascent Serbia. Providedour arguments about attribution are accepted, it is no
answer to this to say that in a formal sense the Convention continued to bind the SFRY, which was
undergoing an irreversible process of dissolution. By the relevant time, when the protection of the
Convention was needed most, the SFRY was a castle of sand, its putative r esponsibility transient
and worthless.
56Bosnia, Preliminary Objections, p. 617, para. 34; Croatia, Preliminary Objections, p. 458, para. 123.
57
CMS, paras. 233–234 citing Ambatielos (Greece v. UK), Merits, Judgment, I.C.J. Reports 1953, p. 10.
58Bosnia, Preliminary Objections, p. 635, separate opinion of Judge Shahabuddeen.
59Rejoinder of Serbia (RS), para. 265.
60
Ibid., paras. 267–268. - 47 -
25. So I will repeat the conclusion that we say must be drawn about the temporal scope of
the substantive obligations of the Convention . The obligations relate to genocide whenever
occurring, not only to genocide oc curring after the Convention formally entered into force for
Serbia as a new State. It follows that the obligations apply to all conduct applicable to Serbia,
including to conduct while it was in statu nascendi. International law can do anything in relation to
temporal obligations if that is what is intended , if that is the object and purpose of the text. I repeat
that these are the substantive obligations in the Convention, that are declaratory of custom, in
particular the obligations to prevent and punish genocide.
26. Finally, I should note that Croatia argues that Serbia is responsible for continuing
breaches of the Convention that do not require it to establish jurisdiction in respect of conduct
predating 27 April 1992, including the failure to pros ecute and punish the perpetrators 6. Serbia
has no answer to that point.
(3) Temporal scope of the compromissory clause
27. Mr. President, Members of the Court, I come to the crucial question, the temporal scope
of jurisdiction under the compromissory clause, Article IX.
28. This comes down to the text and to general principles of treaty interpretation. The
considerations I have just discussed the broad terms of the substantive provisions of the
Convention, its plainly and strongly expressed object and purpose, the need to avoid “an
inescapable time- gap” 62 these considerations are all relevant, and they all support a broad
interpretation. There are also principles of treaty interpretation of particular relevance to
compromissory clauses. Rosenne iden tifies a presumption in favour of the retroactive effect of
titles of jurisdiction, on the premise that “the purpose of a clause of jurisdiction is always to confer
jurisdiction upon the Court and not to deprive it of jurisdiction” 63. There is strong support for this
in, among other cases, Mavrommatis. [Screen on] There the Permanent Court said:
“in cases of doubt, jurisdiction based on an international agreement embraces all
disputes referred to it after its establishment . . . The reservation made in ma ny
61
RC, paras. 8.38–8.46, 9.82–9.94.
62Bosnia, Preliminary Objections; separate opinion of Judge Shahabuddeen, p. 635.
63
S. Rosenne, The Law and Practice of the International Court 1920– 2005, Vol. II (Jurisdiction), 4th ed. (Brill,
2006), pp. 915 et seq. - 48 -
arbitration treaties regarding disputes arising out of events previous to the conclusion
of the treaty seems to prove the necessity for an explicit limitation . . . and64
consequently, the correctness of the rule of interpretation enunciated above.”
[Screen off]
29. Article IX is an example of a wide unqualified compromissory clause. It has been
described as “a model of clarity and simplicity, opening the seizing of the Court as largely as
possible” 65. It contains nothing that might be described as a temporal limitation . The negotiating
history shows that limited formulations were rejected, for the reasons the United Kingdom and
Belgium made clear. This view is reinforced by reading Article IX in conjunction with Article I,
which “confirm[s]” that genocide is a crime in both peace and war. In drafting the Convention, the
States parties took pains to include every safeguard they could to prevent its temporal scope from
being limited.
30. It is not only the substantive provisions that can apply to genocide wherever occurring,
but also the compromissory clause. The clause is not limited to “disputes referred to it after its
establishment” 66. It does not exclude claims “arising out of events previous to [its] conclusion” 67.
Under Article IX there are two questions and two questions only. One: was Article IX in force for
the State at the time the Court was seised ? Two: is the conduct complained of attributable to that
State? In the present case the answer to both questions is: yes, unequivocally.
(4) Does it nonetheless matter when Serbia was formally proclaimed?
31. Serbia has raised some objections to this broadinterpretation, which I will now consider.
32. You held in Bosnia that you had jurisdiction “to give effect to the Genocide Convention
with regard to the relevant facts which have occurred since the beginning of the conflict which took
place in Bosnia and Herzegovina” and that this was “in accordance with the object and purpose of
68
the Convention as defined by the Court in 1951” . You can be confident that in concluding, once
64Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 35. See also
Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment , I.C.J. Reports 1952, pp. 93, 104-107;
Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 24; Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports
1984, p. 418, para. 59; Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, I.C.J. Reports
2005, p. 24, para. 43; and RC, paras.7.17–7.31.
65R. Kolb, “The compromissory clause of the Convention” in P . Gaeta (ed.), The UN Genocide Convention: A
Commentary, OUP, 2009, p. 420.
66Mavrommatis, p. 35.
67
Ibid.
68Bosnia, Preliminary Objections, p. 617, para. 34. - 49 -
again, that you have jurisdiction over facts going back to “the beginning of the conflict”, you are
acting consistently with your jurisprudence and with the general principles underlying the erga
omnes obligations in t he Convention. But at the preliminary objections stage of this case, you
observed that the finding in Bosnia concerned whether the Court, in exercising its jurisdiction, was
limited to dealing with events subsequent to when the Convention might have becom e applicable
between the parties 6. Your comment was not addressed to the question of whether the relevant
70
facts “included facts occurring prior to the coming into existence of the FRY” . So the question
left aside at that point might be put as follows . Given that the Convention does not expressly limit
jurisdiction ratione temporis, and given the Court ’s previous finding that its temporal scope can
extend to facts before it might have become applicable between the parties, does the fact that
Serbia was n ot formally proclaimed until 27 April 1992 nonetheless limit its temporal scope in
relation to conduct before that date?
33. As you observed, the question is “closely bound up” with the questions of attribution
which I discussed 7. But Croatia has met the attribution point. Attribution being established, the
answer to the question is simple. Certain conduct before 27 April 1992 is plainly attributable to
Serbia. That conduct breached applicable substantive obligations under the Convention.
Jurisdiction extends to conduct during that period. There is no reason none in the terms of the
Convention, none in the jurisprudence, none in the general principles underlying erga omnes
obligations to doubt temporal jurisdiction. You would be creating a false problem, one that does
not exist.
34. Any other approach would be paradoxical. Say there were some special rule to the effect
that jurisdiction could not be invoked against a State on the ground that the State was not formally
established at the time. That would peremptorily exclude from jurisdiction any conduct potentially
attributable under Article 10 (2) of the Articles on State Responsibility . Article 10 (2) would be
rendered completely impotent . We would have a rule of attribution saying that a St ate is
responsible. We would have a case of indisputable succession to the treaty, a treaty designed to
69
Croatia, Preliminary Objections, p. 458, para. 123.
7Ibid., p. 458, para.123.
71
Ibid., p. 458, para.124. - 50 -
ensure continuity of obligations. Yet it would be logically impossible to hold the State to account,
even if the temporal scope of the applicable juri sdictional instrument was as wide as it could
conceivably be. In this case, the result would be a time gap, imposed by operation of law , that
would defeat the law a true gap that would undermine the object and purpose of the Convention
precisely when its protection wasneeded. That would be a mockery of formalism.
35. Serbia argues in its Rejoinder that the references in Article IV to “constitutionally
responsible rulers” and “public officials” presuppose “the existence of a State at the relevant
72
time” . What Article IV actually says is that persons committing genocide or other prohibited acts
shall be punished, “whether they are constitutionally responsible rulers, public officials or private
individuals”. Serbia completely misses the point of the statu nascendi rule, which is that a S tate,
along with its organs and officials, may exist in a de facto sense and attract international
responsibility, before it wa s formally proclaimed . In fact there is nothing in the Convention to
suggest that it was intended to depart from the widely recognized principle that conduct may be
attributed to a S tate during the period it is in statu nascendi , or that it was intended that its
jurisdictional clause should have a narrower scope. Was President Milošević a public official in
October 1991? Of course he was, even while he was destroying the SFRY Constitution and
proclaiming his allegiance to Serbia . At th is time his sole effective responsibility was to Serbia,
not to the old constitutional order he was responsible for eviscerating. Did the JNA exist as an
army subject to official decision- making? Of course it did . Professor Sands reminded you that
Milan Babić testified to the ICTY that, in August 1991, Milošević was the “Commander in Chief”
with ultimate control of the JNA and other Serb forces 73.
36. If the law is incapable of dealing with violent transitions, it will fail in its task . A State
cannot disclaim responsibility for its own conduct by post-dating its formal existence, like a villain
post-dating a cheque in order to escape liability.
37. In short, the date of the formal proclamation of a S tate cannot be decisive of temporal
jurisdiction. Where conduct is specifically attributable on the basis that it occurred while the S tate
was in the process of emerging, the date of formal proclamation is irrelevant. The question simply
7RS, para. 257.
7CR 2014/6, p. 66, para. 44 (Sands), citing testimony of Milan Babić, 20 November 2002, 13129–13130. - 51 -
comes down to the temporal scope of the applicable jurisdictional inst rument. As the Court
affirmed in Bosnia, temporal jurisdiction can extend to conduct before the Genocide Convention
might have become applicable to the parties, as between them.
38. Before I move on, I should also comment briefly on a related point made by you,
President Tomka, in your separate opinion on preliminary objections.
39. You referred to the question of attribution : “the responsibility of an entity for acts
committed before it became a State and thus could have become a party to the Genocide
74
Convention” . You then said that that issue and the issue of succession to responsibility do not
fall “within the jurisdiction of the Court under Article IX”, since “[ t]hat jurisdiction covers
‘disputes between the Contracting Parties” and Serbia did no t become a “Contracting Party” until
27 April 1992 75. With respect, Sir, the answer to this lies in the remaining words of Article IX. It
is expressed to extend to disputes “relating to the responsibility of a State for genocide or for any of
the other acts enumerated in article III”. And the dispute must be “between” contracting parties
as this dispute is. But the provision is not further limited as to the responsibility of a State that was
a contracting party at the time . It just refers to the “resp onsibility of a State” . The basis for that
responsibility whether it is the statu nascendi rule or some other basis recognized in the Articles
on State Responsibility does not affect the Court’s jurisdiction from this perspective either.
40. Let me give it as an example. A dispute arises under the Convention at a time when one
of the disputing S tates has a reservation in force under Article IX . Assume further that th at
reservation is subsequently withdrawn. Can you doubt that there could be a dispute between those
two States as to matters which occurred when the reservation was in force? To say otherwise
would be to create wholly unnecessary gaps in the accountability Article IX was intended to
achieve.
41. In other words, this Court certainly has jurisdiction in a dispute about conduct that is
attributable to a State on whatever basis, and that is said to have breached the Convention during
the whole period over which the Convention establishes temporal jurisdiction.
7Croatia, Preliminary Objections, p. 520, para. 13, separate opinion of Judge Tomka.
7Ibid. - 52 -
IV. The date of Croatia’s independence is irrelevant
42. Mr. President, Members of the Court, what I have said answers Serbia’s point that it only
came into existence on 27 April 1992. Let me explain why, in light of these conclusions, Serbia ’s
further objection that Croatia only came into existence on 8 October 1991 76is irrelevant.
43. Croatia, like Serbia, succeeded to the Convention as a successor S tate to the SFRY . It
formally notified the United Nations of its succession in 1992. The date of succession was the date
of independence of Croatia, on 8 October 1991 77.
44. Again, Serbia’s argument that Croatia cannot invoke responsibility in respect of conduct
before that date falls into the error of treating the Genocide Convention as a bundl e of
synallagmatic obligations. We know that the substantive obligations reflected in the Convention do
not require States to a dispute to be parties to it at a particular time . I have already established that.
We know the compromissory clause has compl ete temporal coverage of genocide whenever
occurring, in particular where a State becomes party to it by means of succession . We know that it
reflects erga omnes obligations, owed to the international community as a whole rather than to a
specific State. And we know that any State can invoke responsibility for breach. This accords with
78
what you said in Barcelona Traction and what is spelt out in Article 48 of the Articles on State
Responsibility: if an obligation is “owed to the international community as a whole”, a “State other
79
than an injured State is entitled to invoke the responsibility of another State” for breach of that
obligation. It would directly contradict these principles to manufacture a requirement that the
invoking State have been formally independent at the time of breach.
45. To put it simply : any genocide that occurred was not genocide vis -à-vis Croatia or
another particular S tate. Unlike a breach of a bilateral treaty, the identity of that S tate and the
identity of the S tate invoking responsibility make no difference to the content of the obligation .
Claims of genocide have nothing to do with diplomatic protection ; they have nothing to do with
nationality. They are not merely relative.
76
CMS, paras. 367–387.
77MC, para. 6.08.
78Barcelona Traction, Light and Power Company Limited (Belgium v. Spain), Second Phase Judgment, I.C.J.
Reports 1970, p. 3. See also Commentary to the Articles on the Responsibility of States for Internationally Wrongful
Acts, YILC, 2001, Vol. II (2), Art. 48, para. 2.
79
Articles on the Responsibility of States for Internationally Wrongful Acts, YILC, 2001, Vol. II (2), Art. 48. - 53 -
46. It might be suggested that erga omne s obligations are owed to the “international
community of States as a whole”. The Vienna Convention on the Law of Treaties uses that phrase;
the Articles on State Responsibility just refer to “the international community as a whole” 80. But
that theological difference makes no difference in this case. Croatia is a State. There is no basis
for distinguishing between new S tates and old for this purpose . Croatia is, in any event, also an
“injured State” within the terms of Article 42 of the Articles on State Responsibility.
47. So this further argument by Serbia must also be rejected.
V. Conclusion
48. Mr. President, Members of the Court, the interdependence of the jurisdictional and
related issues that I have discussed may obscure their essential simplic ity. I will finish by setting
out, in the terms of a series of six propositions, why Serbia’s argument that it was only formally
proclaimed on 27 April 1992 does not in any way bar the exercise of jurisdiction in this case.
48.1. Proposition One: You have held that you have jurisdiction ratione personae over Serbia on
the basis of treaty succession . Arguably succession could have occurred ipso iure even if
Serbia had not accepted it. Additionally, even if you held (contrary to our case) that this did
not apply to conduct pre-dating 27 April 1992, you would still have jurisdiction on the basis
of a binding unilateral declaration.
48.2. Proposition Two: Croatia has made the case that certain conduct, including conduct before
Serbia’s formal proclamation o n 27 April 1992, is attributable to Serbia, in particular
pursuant to Article 10 (2). This conduct is subject to the applicable international obligations
of the Serbian State.
48.3. Proposition Three: Croatia has made the case that the conduct is inconsi stent with
substantive obligations of the Genocide Convention. These apply to all conduct attributable
to Serbia whatever the basis on which it is attributable during the relevant period, in
accordance with the object and purpose of the Convention. To hold otherwise would defeat
the object and purpose and would also defeat the rationale for the principle of succession to
humanitarian treaties.
8Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331, Art . 53; Articles on the
Responsibility of States for Internationally Wrongful Acts, YILC, 2001, Vol. II (2), Art. 48. - 54 -
48.4. Proposition Four: Consistent with the scope of the substantive obligations and with the
Bosnia decision, Article IX can accord jurisdiction ratione temporis in respect of events
before the Convention might have become applicable to the parties in their inter se relations.
48.5. Proposition Five: If conduct is applicable to a State, there is no separate ru le of jurisdiction
which requires it to have formally and definitively been constituted as a S tate at that time .
Serbia cannot have abrogated its responsibility for an independence really established at an
earlier date, and never disputed by any other S tate, merely by postponing its formal
declaration of that fact . Th at point bears repeating . Serbia ’s independence was never
disputed, nor its being bound by the Genocide Convention. What was in dispute was which
State Serbia was. But its being bound by the Convention did not depend upon which State it
was. New or old, it was bound.
48.6. Proposition Six: The date of Croatia ’s independence is irrelevant, in part because the
relevant obligations are erga omnes and can be invoked by any State.
49. Mr. President, Members of the Court, these propositions do not lead to any novel or
surprising conclusion. They lead to exactly the conclusion that one would expect having regard to
the object and purpose of the Genocide Convention and the need to avoid an “ine scapable
81
time-gap” in its protection . Th e conclusion is that, with respect to the entire period of this
dispute, the substantive obligations in the Convention bound Serbia and the Court has jurisdiction
over all and any breaches attributable to Serbia during that period.
50. Mr. President, this concludes Croatia’s first round of oral argument, and may I on behalf
of my colleagues thank the Court for its careful attention during what has been, in some respects, a
difficult week. Thank you, Mr. President.
The PRESIDENT: Thank you very much, Professor Crawford. This, indeed, brings to an
end the first round of oral argument of Croatia on its own claims. The Court will meet again on
Monday 10 March at 10 a.m. to hear Serbia begin its first round of oral argument. Thank you, the
Court is adjourned.
8Bosnia, Preliminary Objections, p. 635, separate opinion of Judge Shahabuddeen. - 55 -
The Court rose at 12.30 p.m.
___________
Public sitting held on Friday 7 March 2014, at 10 a.m., at the Peace Palace, President Tomka presiding, in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)