Public sitting held on Friday 21 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 Cr

Corrigé
Corrected

CR 2014/21

International Court Cour internationale

of Justice de Justice

THE HAGUE LA HAYE

YEAR 2014

Public sitting

held on Friday21 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 vendredi21 mars 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 and I invite

Professor Crawford to continue in his pleading which he started yesterday. You have the floor, Sir.

Mr. CRAWFORD: Thank you, Mr. President. Yesterday I outlined our real case in relation

to the temporal aspects of the Convention and illustrated some of the difficulties of Serbia’s case.

12. I turn now to the arguments Serbia has raised that the Convention is incapable of having

effect befor e its entry into force for the P arties to this case, even in th e situation of gradual

dissolution. In doing so it is necessary to distinguish between the application of the Conventi on as

such  that is, its substantive provisions  and the application of the dispute settlement provision,

Article IX.

(1) The substantive application of the Genocide Convention

13. I t urn to the substantive application of the Convention. This is the f irst and most

important question at stake since, as I will demonstrate, if the Convention applied substantively for

that date in relation to the Parties, there is very little difficulty in applying Article IX.

14. Professor Zimmermann claimed that you have already decided, at the preliminary

objections stage, that Serbia “only” became bound by the Convention “ as of April 1992 ” 1. The

word “only” was an addition by Professor Zimmermann. Of course, if you had said “only” that

would have ended the question. But you did not. You decided that Serbia became bound by the

2
Convention “from that date onwards” , but you expressly left open, for consideration at the merits

stage, the question of “the applicability of the obligations under the Genocide Convention to the

FRY before 27 April 1992” 3.

15. Turning to that question, let me first analyse the position that the FRY itself took at the

time. [ Screen on] The best evidence is its own Declaration of 27 April 1992 in which it said as

follows:

1
CR 2014/14, p. 14, para. 26 (Zimmermann).
2Croatia, p. 454, para. 117.
3
Croatia, p. 460, para. 129. - 11 -

“The Federal Republic of Yugoslavia, continuing the state, international legal
and political personality of the Socialist Federal Republic of Yugoslavia, shall strictly
abide by all the commitments that the SFR of Yugoslavia assumed internationally.” 4

16. In its official note to the United Nations on the same date, it said: [Next slide]

“Strictly respecting the continuity of the international personality of

Yugoslavia, the Federal Republic of Yugoslavia shall continue to fulfil all the rights
conferred to, and obligations assumed by, the Socialist Federal Republic of
Yugoslavia in international relations, including its membership in all international
organizations and participation in international treaties ratified or acceded to by
Yugoslavia.” 5

Now it is true that in some respects that proclamation was falsified by events. But it was operative

at the time, and at the time Serbia relied on it and was accepted for various purposes including as a

litigant before this Court.

17. You previously concluded that the FRY was bound “in respect of all the multilateral

conventions to which the SFRY had been a party at the time of its dissolution” 6. But in fact the

two documents of April 1992 are framed in even wider terms. They refer to “all the . . . obligations

assumed by” the SFRY, “including its . . . participation in international treaties”. It is obvious that

the FRY itself took the position that the substantive obligations of the Genocide Convention, like

all other obligations assumed by the SFRY, continued to apply without any kind of temporal break.

The phrase “obligations . . . in international relations” is wide enough to cover secondary

obligations of responsibility, a matter to which I will return . This is the FRY. [Screen off]

18. Mr. President, Members of the Court, as a matter of principle, the continued substantive

application of the Genocide Convention should not be conditioned on proof of recognition or

acquiescence by a successor State. It is true that the Convention can be denounced every ten years

with six months’ notice under Article XIV. But no State has ever denounced it, and a successor

State should be presumed not to have done so, or to have performed acts having equivalent effect,

tacitly. In fact, at relevant times Serbia never expressed any attitude other than continuity : “all

the . . . obligations assumed by the Socialist Federal Republic of Yugoslavia in international

4
Joint Declaration of the SFRY Assembly, the National Assembly of the Republic of Serbia and the Assembly of
the Republic of Montenegro, 27 Apr. 1992, UN doc. A/46/915, Ann. II.
5Note to the United Nations addressed to the Secretary-General, 27 Apr. 1992, UN doc. A/46/915, Ann. I.
6
Croatia, pp. 454–455, para. 117. - 12 -

7
relations, including . . . participation in international treaties ratified or acceded to by Yugoslavia” .

It cannot be more explicit than that.

19. More fundamentally, however, the Genocide Convention is not just a promise by existing

States to do or not to do something; it is a recognition by the international community of States as

a whole that genocide is not only a crime of individuals but a lso a fundamentally illegal act by

whomever committed. You saw this point in Bosnia, when you implied into the Convention an

8
obligation of States not themselves to comm it genocide . On this basis, Serbians, including

Serbian officials, could not have been freed to commit genocide contrary to the Convention merely

because of some equivocation as to its continued application. But there was no such equivocation.

20. But the point is more fundamental still, another layer. The international community of

States is not a numerus clausus. It is not limited to the States that happen to exist at a given time .

When the international community of States  in the white heat of a post-Holocaust world  at

the same time defines and declares certain conduct to be already crim inal, contrary to the moral

law  how often has the General Assembly referred to the moral law?  it is not for th is Court 

I say this with all due respect  to act as a moral sceptic. The object and purpose of the

Convention is too important for that . For example, would Srebrenica have been lawful under the

Convention, or not unlawful, if it had happened earlier, before Bosnia and Herzegovina had been

established or admitted to the United Nations ? Could this Court really incite the Miloševićes of

this world to early genocidal action, in the context of dissolving States? Perish the thought, as we

look around the world today.

(2) The application of Article IX of the Genocide Convention

21. I turn then to the application of Article IX of the Convention. On the assumption that the

substantive provisions of the Convention were in force for all public and private entities located in

the SFRY in 1991 and early 1992  and who can gainsay that?  the argument that Article IX

should be interpreted as applying to acts of responsibility then arising is a straightforward one. The

only temporal requirement expressed in Article IX is that there be a dispute “between the

7Note to the United Nations addressed to the Secretary-General, 27 Apr. 1992, UN doc. A/46/915, Ann. I.

8Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Preliminary Objections, I.C.J. Reports 1996 (II), p. 616, para. 32. - 13 -

Contracting Parties relating to the interp retation, application or fulfilment” of the Convention. The

natural interpretation of these words is that they impose two and only two requirements : the

dispute should at the time of its submission to the Court be a dispute between Contracting Parties,

and the dispute should meet the description in Article IX. There is no warrant for reading into

Article IX additional requirements such as that the applicant State must have been in existence as

such at the time the genocide was committed . Serbian counsel relied on a dictum of

Judge Fitzmaurice in Northern Cameroons as authority for that proposition 9, but the Court decided

10
the case on quite different grounds . On the Fitzmaurice view a State could not complain of

events directly affecting it prior to its creation  the genocide of its own people during the struggle

for independence, for example . Such a finding would be entirely gratuitous, and it would be

11
contrary to your decision in the Phosphate Lands in Nauru case  the first time I stood at this

Bar, I might say. The “tabulated legalism” of a Fitzmaurice is a fundamentally unsatisfactory way

12
of looking at obligations erga omnes , as you effectively admitted in Barcelona Traction  an

admission made at the first opportunity after the Fitzmaurice -inspired debacle of second

13
South-West Africa .

22. I was criticized by counsel for citing Mavrommatis for the principle that “in cases of

doubt, jurisdiction based on an international agreement embraces all disputes referred to [the Court]

after its establishment” 1. You were told that the case depended on the words of the specific treaty

15
in question and did not stand for any general proposition . But the principle is well -established

and is not unique to Mavrommatis . I might have taken you, for example, to P hosphates in

Morocco, where the Permanent Court found that a limitation ratione temporis had been inserted

9
Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1963;
separate opinion of Judge Sir Gerald Fitzmaurice, p. 129.
10Northern Cameroons , p. 32, analysed in J . Crawford, The Creation of States in International Law , 2nd ed.,
2006, pp. 584–585, 596–597.

11Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objec tions, Judgment, I.C.J. Reports
1992, p. 240.

12Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J.
Reports 1970, p. 32.
13
South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment, I.C.J. Reports
1966, p. 47.
14
CR 2014/14, p. 36, paras. 51–52 (Tams), referring to Mavrommatis Palestine Concessions, Judgment No. 2,
1924, P.C.I.J., Series A, No. 2, p. 35.
15CR 2014/14, p. 36, para. 53 (Tams). - 14 -

into a treaty “with the object of depriving the acceptance of the compulsory jurisdiction of any

16
retroactive effects” . In other words, it was assum ed by the Court that it would have had

jurisdiction but for a limitation on jurisdiction expressly inserted into the relevant text.

23. I previously observed that the principle is recognized in the literature, for example by no

lesser authority than Rosen ne 17. Paul Tavernier, citing both Mavrommatis and Phosphates in

Morocco, puts it thus: “une limitation ratione temporis devra être expressément prévue dans l’acte

attributive de compétence et elle sera interprétée restrictivement” 18. He adds: “ [l]’arrêt

Mavrommatis a donc énoncé une règle juste à notre avis, car il faut bien distinguer les problèmes

de fond des problèmes de procédure” 19, in which he includes jurisdiction; problems of substance

must be distinguished from problems of procedure. There is no contradiction between this

principle and the principle of non -retroactivity recognized in Article 28 of the Vienna Convention.

Under Article 36, paragraphs 2 to 3, of the Statute of the Court, a State can accept your jurisdiction

compulsorily, and can do so “unconditionally or on condition of reciprocity . . . or for a certain

time”. There is no inference of non- retroactivity of the scope of any obligation to accept the

Court’s jurisdiction when the title of jurisdiction is silent on the point 20.

21
24. Professor Tams then told you that the principle no longer applies . That is not so. The

Mavrommatis principle finds expression in your decision in Bosnia that “the Genocide

Convention  and in particular Article IX  does not contain any clause the object o r effect of

which is to limit in such manner the scope of its jurisdiction ratione temporis”, and you held that

you had jurisdiction to give effect to Article IX “with regard to the relevant facts which have

occurred since the beginning of the conflict which took place in Bosnia and Herzegovina”, and that

that was “in accordance with the object and purpose of the Convention as defined by the Court in

16
Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 24.
17S. Rosenne, The Law and Pract ice of the International Court 1920– 2005, Vol. II (Jurisdiction), 4th ed., Brill,

2006, pp. 915 ff., cited in CR 2014/12, p. 47, para. 28 (Crawford).
18P. Tavernier, Recherches sur l’application dans le temps des actes et des règles en droit internationublic,
Paris: LGDJ, 1970, pp. 217–218.

19Ibid., p. 218.
20
E. Bjorge, “Right for the wrong reasons: Šilih v Slovenia and jurisdiction ratione temporis in the European
Court of Human Rights”, The British Yearbook of International Law (BYIL) , 2013, Vol.83 115, pp. 123–124.
21CR 2014/14, pp. 36–37, para. 54 (Tams). - 15 -

22
1951” . This was despite Serbia’s arguments in that case based on non -retroactivity. Eirik Bjorge

has described Bosnia as “an application of the rule relating to jurisdictional clauses enunciated in

23
Mavrommatis” . True, you later clarified that you were not addressing whether the relevant facts

24
“included facts occurring prior to the coming into existence of t he FRY” . But it does not detract

from the general principle underlying your Bosnia decision and articulated in Mavrommatis : “in

cases of doubt, jurisdiction based on an international agreement embraces all disputes referred to

[you] after its establishment” 25. The principle applies here.

25. As proof that the Court has  as he put it  “overruled” Mavrommatis, Professor Tams

directed you to Georgiav. Russia 2. But that case did not deal with the point.

26. Professor Tams told you that Georgia “ [sought] to rely on facts pre -dating 1999”, the

time when it became bound by the Convention on the Elimination of Racial Discrimination

(CERD) 27. But the context of the passage he cited was quite specific. Russia had objected to

jurisdiction on the ground that “ there was no dispute between the parties regarding the

interpretation or application of CERD at the date Georgia filed its Application” 28. Now that

objection, if sustained, would have been fatal. In the passage cited, Georgia was invoking evidence

from before 1999, not to refute this objection directly, but in order to establish that the dispute was

“long-standing and legitimate and not of recent invention” 29. What you held is that Georgia had

not cited evidence from before 1999 establishing that point. You added that even if it had, that

“dispute, though about racial discrimination, could not have been a dispute with respect to the

interpretation or application of CERD, the only kind of dispute in respect of which the Court is

30
given jurisdiction” .

22
Bosnia, p. 617, para. 34.
2E. Bjorge, “Right for the wrong reasons: Šilih v Slovenia and jurisdiction ratione temporis in the European

Court of Human Rights”, BYIL, 2013, Vol. 83 115, p. 126.
2Croatia, p. 458, para. 123.

2Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 35.
26
CR 2014/14, p. 36, para. 54 (Tams).
27
CR 2014/14, p. 37, para. 54 (Tams).
2Application of the International Convention on the Elimination of All Forms of Racial Discrimination

(Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 81, para. 22.
2Georgia v. Russia, p. 86, para. 34 and p. 94, para. 50.

3Ibid., p. 100, para. 64. - 16 -

27. If Professor Tams had extracted from this passage a principle that States cannot be in

“dispute” under a treaty while it is not in force between them, that might have been arguable 

although I have already said that in any case the declaratory character of the Genocide Convention

should lead to a different result. But he relies on the passage for a different proposition. He claims

that you made it “very clear” that “both parties had to be bound by CERD when the disputed

conduct took place  and not, as Croatia argues, when the case was brought ” 31. But you did not

say that in Georgia v. Russia, or anything that could be construed to being to that effect. On the

contrary, you said at the beginning of your discussion that “[t]he dispute must in principle exi st at

32
the time the Application is submitted to the Court” . That is with respect, absolutely correct, and

that requirement is fulfilled here.

28. It is not in doubt that there was a “dispute” at the time Croatia filed its Application. Nor

can the distinction between treaty and customary international law take Serbia anywhere. Croatia

has referred to the customary prohibition of genocide to establish the object and purpose of the

Convention and the temporal scope of the substantive obligations contained in it. But Croatia’s

submission is that the Convention applies in this case. The passage from Georgia v . Russia about

the existence and characterization of the “dispute” at the time the Application was filed is irrelevant

to this question.

29. Russia made a separate objection in Georgia v. Russia that “any jurisdiction the Court

might have is limited ratione temporis to the events [that] occurred after the entry into force of

33
CERD as between the parties” . That objection is much more comparable to the p oint at issue

here. But you found that having upheld one of Russia’s objections, you were not required to

34
consider that further objection . So it is something of a stretch to present your argument as having

“overruled” Mavrommatis 35, on a point which you expressly and unambiguously declined to

consider.

31
CR 2014/14, p. 37, para. 55 (Tams).
32
Georgia v. Russia, p. 85, para. 30.
3Ibid., p. 81, para. 22.
34
Ibid., p. 140, para. 185.
35
CR 2014/14, p. 36, para. 54 (Tams). - 17 -

30. Georgia v. Russia was also cited for a further proposition. Professor Zimmermann on

this occasion appearing with Professor Tams, and not in parallel  observed that the possibility of

automatic succession was not “even argued” or “even consider[ed]” in the case. He then concludes

36
that you “rejected” it . Mr. President, Members of the Court, if Georgia v. Russia is taken as an

authority against every proposition that was neither argued nor consider ed, you do not really have

to consider any more cases; the development of your jurisprudence is complete! But such an

argument would have the effect of crippling humanitarian treaties in relation to situations of

conflict and dissolution, and of doing so at a time of ethnic violence. I cannot believe that this

effect is desired, it is certainly not desirable: it would sideline the Court and would make it less

rather than more relevant in our unstable world.

31. The other case heavily relied on by Serbia was Belgium v. Senegal. They said I did not

refer to it, I think on at least five occasions. Several passages were cited. The first, once again,

deals with the analytically distinct question of whether there was a “dispute” at the time the

Application was filed 37. All you observe in this passage is that at the time Belgium filed its

Application, there was no dispute concerning a particular customary obligation that Senegal
38
allegedly breached, as distinct from obligations under the Convention against T orture . Serbia

cites this for the rather banal proposition that the issue of whether a customary obligation exists is

distinct from compliance with a treaty obligation. The passage has no other relevance for our case.

32. Professor Zimmermann told you that Belgium v. Senegal also supports the proposition

that Croatia has no standing to request the Court to rule on Serbia’s compliance with obligations

before Croatia came into existence 39. But again the passage has been quoted out of context. What

Senegal actually argued was that the obligation at issue “belongs to ‘the category of divisible erga

omnes obligations’, in that only the injured State could call for its breach to be sanctioned” 40. The

obligations in the Genocide Convention  notably the obligation not to commit genocide  are

36
CR 2014/14, pp. 20–21, para. 58 (Zimmermann).
37CR 2014/14, p. 16, para. 35 (Zimmermann).

38Questions relating to the Oblig ation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports
2012 (II), p. 445, para. 54.
39
CR 2014/14, pp. 66–67, paras. 91–95 (Zimmermann).
40
Belgium v. Senegal, p. 458, para. 103. - 18 -

not “divisible” erga omnes obligations. Genocide is not relative to any individual State  it is

relevant, but not relative. Moreover, you went on to note that Belgium had standing from the date

it became party to the Co nvention, in 1999, and that it had invoked Senegal’s responsibility
41
“starting in the year 2000”, so again, it can hardly be said that you decided the point .

33. Finally, counsel referred you to Belgium v. Senegal for your analysis of the temporal

42
scope o f Article 7 (1) of the Convention against Torture . That provision requires State s to

prosecute or extradite certain offenders. Article 7 (1) is not about thecompromissory clause. It has

nothing to do with the presumption, in Mavrommatis, that jurisdic tion under a compromissory

clause embraces all disputes referred to the Court after its establishment. Secondly, you distinguish

the obligation to prosecute or extradite from the prohibition of torture used itself. You say that “the

prohibition of torture is part of customary international law and it has become a peremptory norm

(jus cogens)”. You say this apparently by way of contrast with the obligation to prosecute or

extradite which, you conclude by reference to Article 28 of the Vienna Convention, “ applies only

43
to facts having occurred after its entry into force for the State concerned” . Your discussion was

not directed to the temporal scope of the prohibition of torture per se.

34. So even taken at its highest, th e discussion in Belgium v. Senegal is relevant only to the

one specific jurisdictional issue: the temporal scope of substantive obligations a nalogous to the

obligation to prosecute or extradite under the Convention against Torture.

35. That analogy is not apposite here. We should lookat the approach of the European Court

of Human Rights, despite the well -established proposition that the Convention as such is only

prospective in effect. In Šilih v. Slovenia, the question was whether the Convention could apply to

facts occurring before Slovenia acceded to it . The obligation at issue was analogous to the

obligation to punish under the Genocide Convention, or the obligation to extradite under the

Torture Convention. [Screen on] The Court held:

41
Belgium v. Senegal, p. 458, para. 104.
42CR 2014/14, p. 16, paras. 36–38; p. 18, paras. 46–49 (Zimmerman); p. 25, para. 14, pp. 27–28, paras. 23–24,
p. 33, paras 38–40 (Tams).
43
Belgium v. Senegal, p. 457, para. 100. - 19 -

“that the procedural obligation to carry out an effective investigation under Article 2

has evolved into a separate and autonomous duty. Although it is triggered by the acts
concerning the substantive aspects of Article 2 it can give rise to a finding of a
separate and independent ‘interference’ within the meaning of the Blečič judgment . . .
In this sense it can be considered to be a detachable obligation arising out of Article 2
44
capable of binding the State even when the death took place before the critical date.”

That is in respect of a prospective Convention. [Screen off]

36. Let me leave analogies aside and quote Article I of the Genocide Convention: “The

Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is

a crime under international law which they undertake to prevent and to punish.” They confirm that

it is a crime; they undertake to punish it. General Assembly resolution 96 (I) similarly “affirm[ed]

45
that genocide is a crime under international law” . The confirmatory, declaratory expression of

the Convention, unique in this respect among modern treaties, the expression of a potent and

widely held moral outrage at past events, are powerful indications that the Convention lacks the

temporal limitations found in other treaties . This was not the case with CERD, which was at issue

in Georgia v. Russia. Nor was it the case with the Convention against Torture, at issue in

Belgium v. Senegal. Previous to the Convention against Torture a single act of State torture would

no doubt have been a breach of human rights, but it was only criminal under international law if it

was part of an attack on a civilian population, a crime against humanity or a war crime . It was

made per se unlawful in 1984. In terms, both treaties made new law . I have already emphasized

the different character of the Genocide Convention, which did purport to codify an existing crime.

Who at the time would have said that genocide as it had occurred was not a crime?

37. Another analogy with human rights law may also be helpf ul, even though the Genocide

Convention is sui generis . A potential time gap in the application of a multilateral human rights

46
treaty arose in a different context in Bijelić v. Montenegro and Serbia . At the time of the

application, Montenegro was in a c onstitutional union with Serbia 47. After its independence on

3 June 2006, the applicants indicated that they wished to proceed against both States. The potential

44
Šilih v. Slovenia, E uropean Court of H uman Rights (ECtHR), App lication No. 71463/01, Judgment
9 Apr. 2009.
45GA res 96 (I), 11 Dec. 1946.

46Bijelić v. Montenegro and Serbia, ECtHR, App. No. 11890/05, Judgment 28 Apr. 2009.
47
Croatia, pp. 422–423, paras. 27–34. - 20 -

time gap arose because it was not until 2007 that Montenegro joined the Council of Europe . The

Committee of Ministers of the Council of Europe decided, retroactively, that Montenegro could be
48
regarded as a party to the European Convention with effect from 6 June 2006 . The European

Court had regard to this and to “the principle that fundamental rights protected by international

human rights treaties should indeed belong to individuals living in the territory of the State party

concerned, notwithstanding its subsequent dissolution or succession” . It deemed the Convention

“as having continuously been in force in respect of Montenegro” as of the date in 2004 when the

FRY (Serbia and Montenegro) acceded to it 49.

38. The independence of Montenegro was, of course, very different from the earlier

dissolution of the SFRY and the gradual emergence on its territory of new States. You will recall

that Croatia has maintained these proceedings against Serbia as the continuator State and has not

50
instituted separate proceedings against Montenegro . But the Bijelić case illustrates the

importance of the continuity of human rights for the people living in a territory  and we say it is

a fortiori for the Genocide Convention.

(3) Succession to responsibility

39. I turn to a third issue which is succession to responsibility. Serbia suggests that Croatia

should have framed its case as one of succession to responsibility 5. Croatia’s primary submission

in this respect is that the Court must look at the practical reality of the situation : during the events

of 1991 and early 1992, the SFRY simply was not functioning as a State, and to hold that only the

SFRY could have been responsible for conduct by the JNA would be a legal fiction. As

Judge Hudson stated in Lighthouses in Crete and Samos , “[a] juristic conception must not be

stretched to the breaking-point, and a ghost of a hollow sovereignty cannot be permitted to obscure

52
the realities” . The SFRY, by the end of 1991, was the ghost of a hollow sovereignty. In practical

terms, the JNA was by now plainly an organ of the nascent Serbian State. This was confirmed after

48Council of Europe doc. CM/Del/Dec (2006) 967/2.3aE, 16 June 2006.
49
Bijelić v. Montenegro and Serbia, ECtHR, App. No. 11890/05, Judgment 28 April 2009, para. 69.
50Croatia, p. 422, para. 30.

51CR 2014/14, p. 23, para. 6, p. 39, para. 62 (Tams); pp. 60–64, paras. 58–80 (Zimmermann).
52
Lighthouses in Crete and Samos (France v. Greece), Judgment, 1937, P.C.I.J., Series A/B, No. 71 ; separate
opinion of Judge Hudson, p. 127. - 21 -

27 April 1992, when it was effectively transformed into a de iure organ. But, i f th ese

submissions  that is our principal case  if these submissions are rejected if the Court were to

find that the SFRY, and only the SFRY, was responsible for conduct by the JNA during the

relevant period  then a further finding of succession to responsibility is called for. We make that

submission in the alternative.

40. The point was also not decided at the preliminary objections stage 53. You found that

Serbia had succeeded to multilateral treaties to which the SFRY was a party, but you made no

finding about succession to responsibility.

41. In this regard w e can take some guidance from the Lighthouses arbitration. There, the

Cretan coastal service had exempted a Greek vessel from payment of light dues in breach of a

treaty. Greece was held responsible for this conduct, even though it occurred before Crete was

united with Greece in 1913. Among other relevant circumstances, the case had putatively been

brought to Greece’s attention, and Greece had kept the coastal service concession in force after its

succession to Crete. Note the parallel here with the JNA  in practice, it was kept in service under

a new name after the proclamation of the FRY . Note also that Greece did not make an y express

declaration of succession to responsibility : such a declaration is evidently not required where

conduct is clear enough in itself . The tribunal held that Greece ’s responsibility could result “only

from a transmission of r esponsibility in accordance with the rules of customary law or the general
54
principles of law regulating the succession of States” . It recognized the sui generis character of

such situations, saying: “it is no less unjustifiable to admit the principle of transmission as a

general rule than to deny it” and that “the solution must depend on the particular circumstances of
55
each case” .

42. So let us look at the circumstances in this case. We say the rule of succession can occur

in particular circumstances if it is justified. There is no general rule of succession to responsibility

but there is no general rule against it either. Say that following the proclamation of the FRY on

27 April 1992, someone had asked President Milošević whether the new FRY was responsible for

53
CR 2014/14, pp. 60–61, paras. 58–67 (Zimmermann).
54Lighthouses arbitration (1956), Decision No. 23 International Law Reports (ILR), pp. 81, 90.
55
Ibid., 91–92. - 22 -

the conduct of the old SFRY. What would he have said? The answer is obvious and inescapable.

At that time, he rigorously maintained the claim of continuity with the SFRY. Consistent with this

claim, Milošević  or any other official of the new FRY  would unquestionably have said “yes,

the FRY is responsible in international law for all conduct attributable to the SFRY”. This

conclusion follows inexorably from the FRY’s conduct and statements around that time, in

particular from the declaration of 27 April 1992, and the related statement to the United Nations,

which reflected the position of the State.

43. The controversy about the status of the FRY between 1992 and 2000 has created some

confusion and, to put it mildly, was a source of so me difficulty for the Court. But in the last

analysis, whatever approach the Court takes, whatever effect the change of Serbian policy in

relation to the United Nations in 2000 had, the Serbian leadership and State apparatus should not be

granted impunity from international responsibility that they themselves  and everyone else 

believed that they had.

III. Jurisdiction over events after 27 April 1992,
including continuing breaches

44. Mr. President, Members of the Court, one final point on jurisdictio n. Serbia argued that

Croatia had “not referred to any events that took place after 27 April 1992 as allegedly constituting

genocidal acts” so that our case is “fully dependent . . . on a retroactive application of the Genocide

56
Convention” . In fact, Croatia’s written pleadings refer to many crimes, many wrongful acts

committed after 27 April 1992, as evidence of the continuing genocidal campaign against the

Croatian population. In May 1992, for example, Croat residents were forcibly exiled from Berak

57
and then forced to walk over a minefield . In February 1993, members of a Serbian paramilitary

group  led by an active officer of what was then the de iure army of the FRY  murdered Croats

in Puljane. As a result of the massacre, the remaining inhabitants of Puljane fled the following day.

58
The only punishment the murderers received was dismissal from their units . Between May 1992

and February 1993, Croat civilians were massacred in Medviđa and their killers released without

56
CR 2014/14, p. 11, paras. 6–7 (Zimmermann).
5Memorial of Croatia (MC), para. 4.38.
58
MC, para. 5.207. - 23 -

charge . Further examples are contained in the footnotes . In any event, it seems that Serbia has

changed its position: it conceded last week that at least eight alleged acts of genocide did occur

after 27 April 1992 61. So, in the further alternative, if the Court holds that the Convention was

applicable only from 27 April 1992, there are still acts you need to deal with. It does not let the

Court  if I can say so with the greatest respect  “off the hook”.

45. In any event, Serbia has a continuing responsibility for breaches of the Genocide

Convention. The failure to punish acts of genocide is ongoing irrespective of whether those acts

occurred before or after 27 April 1992. [Screen on] This is consistent with Article 14 (2) of the

Articles on State Responsibility, which provides:

“(2) The breach of an international obligation by an act of a State having a continuing

character extends over the entire pe riod during which the ac62continues and
remains not in conformity with the international obligation .”

46. You have heard from Professor Sands that the families whose loved ones have not been

accounted for  the disappeared of Croatia  continue to be sub jected to “serious . . . mental

harm” in breach of Article II of the Convention. The causing of such harm is widely recognized as

a violation “having a continuing character”. The U nited Nations Declaration on the Protection of

All Persons from Enforced Disappearance, states: “[a]cts constituting enforced disappearance shall

be considered a continuing offence as long as the perpetrators continue to conceal the fate and the

whereabouts of persons who have disappeared and these facts remain unclarified” 63. [Next slide]

This was confirmed by the Inter -American Court in one of its most important decisions,

Velázquez Rodríguez, where it says:

59MC, para. 5.220.

60MC, paras. 4.93 (May 1995), 5.27 (Sep. 1993), 5.145 (Nov. 1992 and early 1993), 5.210 (1993), 5.212 (various
dates between Aug. 1992 and 1996), 5.214 (July 1992), 5.221 (Jan. 1993), 5.223 (Jan. 1993), 5.225 (June to Dec. 1992);
Reply of Croatia (RC), paras 6.75 (1993), 6.89 (July 1992 and Jan. 1993).
61
CR 2014/15, p. 35, para. 7 (Lukić).
62
Articles on the Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law
Commission (YILC), 2001, Vol. II (2), Art. 14 (2):
“(2) La violation d’une obligation internationale par le fait de l’Etat ayant un caractère continu
s’étend sur toute la période durant laquelle le fait continue et reste non conforme à l’obligation

internationale.”
63UN Declaration on the Protection of All Persons from Enforced Disappearance, GA res 47/133, 18 Dec. 1992,
Art. 17. - 24 -

“The duty to investigate facts of this type continues as long as there is

uncertainty about the fate of the person who has disappeared. Even in the hypothetical
case that those individually responsible for crimes of this type cannot be legally
punished under certain circumstances, the State is obligated to use the means at its
disposal to inform the relatives of the fate of the victims and, if they have been killed,
64
the location of their remains.”

47. [Screen off] The same reasoning applies to Article II of the Genocide Convention, which

provides that the actus reus of genocide includes “[c]ausing serious bodily or ment al harm to

members of the group”. So again, Serbia is responsible for such continuing breaches of Article II

irrespective of its submission on jurisdiction over events before 27 April 1992.

IV. The statu nascendi principle

48. Mr. President, Members of the Court, that concludes my remarks on jurisdiction. I move

now to the question of attribution, beginning with the applicability of Article 10 (2) of the Articles

on State Responsibility. That may not have been famous before this case; it will be famous now.

49. Here Serbia repeated a number of arguments from its written pleadings which we

rebutted in the first round, without dealing with that rebuttal . For example, counsel for Serbia
65
repeatedly referred to what it called “movement responsibility”  a rather curious phrase. But as

I said in the first round, Article 10 (2) is “not concerned with the responsibility of a movement qua

66
movement”, but with the responsibility of a “movement qua state in embryo” . Article 10 (2) is

not limited to substantive obligations that apply specifically to movements, whether or not they are

successful, such as obligations accepted by declar ation under Additional Protocol I of the Geneva

Conventions. It follows from this clear and straightforward proposition [which I w ill not argue

again in detail] that other relevant rules of attribution apply in much the same way as they

otherwise would in a situation where Article 10 (2) applies.

50. Mr. Lukić claimed that “there can be no equivalent to Article 8” in the context of

movement responsibility and that the ILC C ommentary “expressly excluded conduct of individual
67
members of the movement” . It did no such thing. A movement, like a State, can act only through

64
Velázquez Rodríguez, IACtHR, Ser. C, No. 4, Judgment 29 July 1988, para. 181.
65E.g., CR 2014/15, p. 37, paras. 18–20 (Lukić).

66CR 2014/12, pp. 42–43, paras. 14–15 (Crawford).
67
CR 2014/15, p. 37, para. 18 (Lukić). - 25 -

its officials or other human individuals ; it is not a mythologi cal creature with its own hands and

feet. The commentary cited states that Article 10 (2) covers “conduct of the movement as such and

not the individual acts of members of the movement, acting in their own capacity ” . Exactly the68

69
same proposition applies to Article 4 and to Article 7 . Members of the JNA were not acting “in

their own capacity”; they were acting in their capacity as members of the JNA, a de facto organ of

the nascent Serbian State. The usual principles of attribution apply.

51. Professor Tams argued that a movement under Article 10 (2) cannot be “aligned” to the

interests of the S tate against which it is fighting, yet said that I “emphasized the ‘alignment’

between the alleged Greater Serbia movement and the SFRY” 70. That is a distortion of what I said.

71
I used these words: “[t]he alignment of objectives between the JNA and the Serbian leadership” .

I then referred to the “contempt and disregard of the JNA command for the Constitution and the

72
SFRY Presidency” . I quoted a series of phrases about that contempt, about the transparent device

of using the JNA as a real Serbian organ rather than an apparent SFRY one. To none of those

quotations was there any response. What I said was the opposite of what Professor Tams claims.

The movement in question was led by Serbian political and military leaders in a joint criminal

enterprise so found  whose objectives included a Greater Serbia. That was the movement .

And it certainly was aligned against the interests of the SFRY : it rendered t he SFRY Presidency

effectively impotent, it took de facto control of State organs such as the JNA, which it employed

for its own political and military objective s. It even attacked a building while the head of State and

head of government of the SFRY were inside; that is a curious form of alignment. Perhaps the

missile was aligned. Professor Tams advised you to “look at the map” for proof that this

movement did not “succeed” in establishing a Greater Serbia 73. Well, it eventually did not

succeed. Anyone who looked at a map between 1992 and 1995, when Serbian and Serb forces

68
Commentary to the Articles on the Responsibility of States for Internationally Wrongful Acts, YILC 2001/II (2),
Art. 10, p. 50, para. 4; emphasis added.
69
Articles on the Responsibility of States for Internationally Wrongful Acts, YILC 2001/II(2), Art. 7; emphasis
added.
70CR 2014/14, pp. 46–47, paras. 76–81 (Tams).

71CR 2014/5, p. 46, para. 10 (Crawford); emphasis added.
72
CR 2014/5, p. 46, para. 10 (Crawford).
73CR 2014/14, p. 48, para. 83 (Tams). - 26 -

occupied some one third of Croatia and more than two thirds of Bosnia-Herzegovina, would have

drawn a different conclusion . If the conduct was attributable in 1994 it did not cease to be

attributable later on because of the defeat of Serbian objectives. The fact is that the movement did

“succeed[] in establishing a new state”, even if it was not the State that Milošević wanted. Those

are the words of Article 10 (2); that is the on ly type of success required. It is a modified success,

but not everyone has their own State. The fact that it did not also achieve the full extent of its

74
territorial ambitions cannot relieve it of responsibility for what it actually did .

52. Serbia argued that S tate practice on Article 10 (2) is sparse, as if sparseness in itself

could justify the Court in departing from the principle 75. Yet Serbia has still not pointed to any

authority credibly denying the existence of the principle . Nor is it decisiv e that there is no exact

precedent for the sui generis situation now before this Court. As this Court knows only too well,

principles of international law must constantly be applied to newly arising situations, whether by

way of analogy or where a situati on falls squarely within a general principle that has previously

been applied to a range of other sui generis situations. An example is the conduct of the Polish

National Committee before the recognition of the new Polish State in 1919. This was cited du ring

the drafting of what is now Article 10 (2) in support of the proposition that, despite the sparseness

76
of State practice, the rule “seemed well-established” .

53. Another application of the rule to sui generis circumstances is the case of Algeria. The

movement in question, the FLN (Front de Libération Nationale) achieved independence for Algeria

in 1962. The Évian Accords between France and the provisional government included a

declaration that “Algeria assumes the obligation and benefits from the rights contracted in its name,
77
and those of Algerian public establishments by the competent French authorities” . Algeria

assumed the obligations and benefited from the rights contracted in its name by France. The

74
CR 2014/10, p. 42, para. 24 (Crawford).
75CR 2014/14, pp. 41–45, paras. 67–72 (Tams).

76YILC, 1998, Vol. I, 248, para. 50.
77
Déclaration de principes relative à la coopération économique et financière, 19 March 1962,[1962] JORF 3019,
Art. 18. - 27 -

situation was, in some respects, comparable to Serbia’s succession to the Genocide Convention,

78
consistent with its acceptance to be bound by all its international obligations .

54. Now it is true that Algeria never formally complied with this declaration with respect to

the actions of the FLN before its formal independence. But French courts, in a series of cases, have
79
interpreted it to apply to those actions . Patrick Dumberry observes of the Grillo case in 1999 that

it seems that “the Conseil d’Etat interpreted the internationally wrongful acts committed before the

80
independence of Algeria as those of the future state of Algeria” . That is the statu nascendi rule.

It is a necessary construction dealing with the fact that States do not come into existence in

situations of belligerency at a sing le moment in time. In the Perriquet case in 1995, t he Conseil

d’Etat was concerned with any potential French responsibility and so did not make an actual

finding against Algeria. But its view is expressed clearly enough. It observed that as a result of the

declaration, rights and obligations contracted by France in the name of Algeria had been transferred

to the Algerian State on independence. It then said: “l’indemnisation des dommages imputables à

des éléments insurrectionnels intéresse l’Etat algérien” 81.

55. I do not suggest , Mr. President, Members of the Court, that the present situation is

precisely the same as the ones I have dealt with  the Polish National Committee, the FLN  or

other previous situations where the principle recognized in Article 10 (2) has applied. It is not the

same, we can point to differences. But those past situations are further evidence that the assertion

that Article 10 (2) represents a new rule and is limited to movements of some very specific type

cannot be justified. This is a situation of the same general configuration, the same general principle

of attribution applies, and for the same reasons . As Patrick Dumberry, who studied this subject in

some detail, says “[t]he new state should remain responsible for acts which took place before its

independence because there is a ‘ structural’ and ‘organic’ continuity of the legal personality of

what was then a rebel movement”  or, in this case, an “other” movement with all the relevant

78Croatia, pp. 454–455, para. 117.

79Hespel, Conseil d’Etat, 2/6 SSR, case No. 11092, 5 Dec. 1980, in Tables du Recueil Lebon; Perriquet, Conseil
d’Etat, case N o. 119737, 15 March 1995; Grillo, Conseil d’ Etat, case N o. 178498, 28 July 1999. See further
P. Dumberry, “New state responsibility for internationally wrongful acts by an insurrectional movement ” (2006) 17 EJIL
605, pp. 613-615 and other cases cited therein.
80
P. Dumberry, “New state responsibility for internationally wron gful acts by an insurrectional movement ”
(2006) 17 EJIL 605, p. 615, referring to Grillo, Conseil d’Etat, case No. 178498, 28 July 1999.
81
Perriquet, Conseil d’Etat, case No. 119737, 15 March 1995. - 28 -

82
characteristics  that “has since successfully become a new independent state” . In our case the

“structural” and “organic” continuity between the Serbian military a nd political leadership and the

FRY was complete.

56. In this context, I should say a word, after all these years, about the work of the ILC on

attribution, notably Article 10. The fact that the actual language of Article 10 (2) was adopted on

Second Reading does not preclude it from being judged to be customary international law . The

ILC’s function is not simply to record pr actice and to adopt sparse articles where the practice is

sparse. Some of the ILC articles have been criticized for being sparse, but that is not a very good

reason for the sparseness. The ILC’s function is to rationalize the law and to expose its underl ying

structure and values for international scrutiny, not least scrutiny by this Court. Anyone looking at

the jurisprudence of continuity in contexts such as those covered by Article 10 will be struck by the

consistent tendency of courts and tribunals to maintain continuity. Lighthouses in Crete and Samos

and the Lighthouses arbitration are but two examples.

V. Other elements of the attribution of conduct to Serbia

57. Mr. President, Members of the Court, moving away from Article 10, paragraph 2,

perhaps slightly reluctantly, I should mention some other elements of Croatia’ s argument on

attribution. It may assist the Court if I summarize again the various grounds on which we say that

conduct is attributable to Serbia, since Serbia did not respond to all of our arguments and since it

accused us of attempting to sow confusion about which grounds applied 83.

58. First, Serbia ’s failure to prevent and failure to punish acts of genocide amount in

themselves to breaches of the Genocide Convention . In addition, Serbia ’s failure to assist with

locating disappeared persons constitutes a continuing breach of Article II. These breaches are

self-evidently attributable to Serbia.

59. Secondly, the facts, confirmed in numerous findings of the ICTY, demonstrate that the

JNA directly committed acts which we say amounted to genocide. That ultimate judgement of

characterization is for you, the acts themselves are established. It also ordered, facilitated, aided,

8P. Dumberry, “New state responsibility for internationalwrongful act s by an insurrectional movement”
(2006) 17 EJIL 605, 620.

8CR 2014/15, p. 52, paras. 6, 9 (Ignjatović). - 29 -

abetted and otherwise supported the commission of genocide by other Serb forces, of which the

JNA had actual knowledge. This includes acts by the forces of the self -proclaimed Serb entities in

Croatia and by Serb paramilitaries. In so far as the conduct of the JNA itself amounts to acts of

genocide or to complic ity in acts of genocide, all that we are required to establish is that the

conduct is attributable to Serbia. We have done this by reference, primarily, to Article 4 and to the

jurisprudence of this Court on when an entity can be treated as a de facto organ. The JNA was a

de facto organ of the emergent Serbian State. I have explained why these principles are capable of

applying in a situation where a State is in statu nascendi in the same way essentially as they apply

to other cases of State responsibility. Croatia also suggest s that conduct by the JNA may be

attributable to Serbia under Article 8, on direction and control . But the primary ground on which

we say it is attributable is Article 4.

84
60. Serbia’s refrain that the JNA was de iure an organ of the SFRY is simply irrelevant . Of

course it was de iure an organ of the SFRY. But I repeat the test you applied in Bosnia:

“persons, groups of persons or entities may, for purposes of international
responsibility, be equated with State organs even if that status does not follow from
internal law, provided that in fact the persons, groups or entities act in ‘ complete
85
dependence’ on the State, of which they are ultimately merely the instruments” .

Serbia responded to this by citing “animosity between K adijević and Milošević” and arguing that

“[n]either influence nor control could exist” in such a relationship 86. It also asserted that we had

87
provided no “evidence of direct orders” . Mr. President, Members of the Court, we are not

required to provide evidence of direct orders. States are responsible for genocide even if they keep

the orders tacit or silent. If the genocide is proved there is no need for a Wannsee conference. If

an entity can be equated with a State organ, the State is responsible for all conduct by that entity as

with any other conduct of the State 88. Whether the Serbian political and military leaders liked each

other or not is neither here nor there . They were party to a joint criminal enterprise whose

“common purpose . . . was the establishment of an ethnically Serb territory through the

84E.g., CR 2014/15, p. 40, para. 29 (Lukić).
85
Bosnia, para. 392.
86CR 2014/15, p. 41, para. 32 (Lukić).

87CR 2014/15, p. 39, para. 26 (Lukić).
88
Bosnia, para. 397. - 30 -

89
displacement of the Croat and other non-Serb population”  that is from Martić. They were the

leaders of a movement with that objective, and the JNA was the army of that movement, in

complete depend ence on it . As Kadijević himself put it, “the Serb and Montenegrin people

considered the JNA as their army, in the same way that they considered the Yugoslav state their

country” and he saw the JNA ’s responsibility as being “to secure for the new Yugoslav ia [that is

the FRY] and the entire Serb population [entire Serb population wherever located] its own army” 90.

61. Let me illustrate where Serbia’s approach goes wrong. Mr. Lukić highlighted a comment

by the ICTY that the evidence did not establish that “ Mrkšić consulted his superiors in Belgrade”

about handing over prisoners of war from Vukovar to paramilitary and local SAO forces 91. It does

not matter whether he consulted “his superiors in Belgrade” or not. He was a colonel in the JNA.

Under Article 7, “[t]he conduct of an organ of a State or of a person or entity empowered to

exercise elements of governmental authority” is attributable to a S tate if it “ acts in that capacity ,

even if it exceeds its authority or contravenes instructions” 92. Even if Mrkšić had acted contrary to

instructions from Belgrade, which the Respondent would know and has not told us, the

responsibility would still exist. A more pertinent question is who the “superiors in Belgrade”

actually were. The ICTY tells us. It was not the President of the Presidency. By early 1991, the

JNA “had come to be typically perceived in Croatia as aligned with Serb interests and effectively

commanded from Belgrade by a Serb dominated leadership” 93. The ICTY later refers to “the Serb

94
controlled Federal government in Belgrade” .

62. You heard from Serbia that on 6 January 1992 Kadijević “relinquished the duty of the

95
Federal Secretary” and Milošević “became the absolute commander of the army” . Those are

Kadijević’s own words, in an interview quoted by Serbia. Of course, we have shown that the JNA

89Prosecutor v. Martić, IT-95-11, Trial Chamber Judgement, 12 June 2007, para. 445.

90V Kadijević, My View of the Collapse: An Army without a State , Belgrade, 1993, pp. 163–164; MC, Apps.,
Vol. 5, App. 4.1.
91
Prosecutor v. Mrkšić et al, IT-95-13, Trial Chamber Judg ement, 27 Sep. 2007, para. 586, cited in CR 2014/15,
p. 46, para. 49 (Lukić).
92
Articles on the Responsibility of States for Internationally Wrongful Acts, YI2001/II (2), Art. 7; emphasis
added.
93
Mrkšić, para 23.
94Mrkšić, para 471.

95General Kadijević, interview, 2007, http://www.novinar.de/2007/10/07/kadijevic -odbio-sam-vojni-puc.html,
quoted in CR 2014/15, p. 41, para. 33 (Lukić). - 31 -

was a de facto Serbian State organ even before that date . But from that date onwards , we have

direct confirmation from Kadijević that the JNA was following the orders of the Serbian political

leadership, of Milošević. That was months before the proclamation of the FRY. It conclusively

discredits Serbia’s assertion that the JNA continued to function as an organ of the SFRY until

27 April 1992. It belies any suggestion that the apparatus of the new Serb S tate sprang into being

instantaneously, like Athena from the head of Zeus  to take a rather inappropriate example 

without any period of gestation.

63. In reality, State dissolution and emergence are often gradual . It was the same with the

gradual transformation of the JNA from an organ of the old State into an organ of the new . We

were criticized for referring to the centralization of the command structure of the JNA in 1988 and

the subsequent Serbianization of its personnel. Those earlier events are relevant as the background

to the transformation, to explain how the Serbian military and political leadership was later able to

take effective control of the JNA . Serbia accepted that by late 1991 the JNA became an “active

participant” in the conflict in Croatia, though it argued that it was reactive rather than proactive:

these events “did not arise in a theoretical vacuum” 96. Croatia, of course, has disputed who was

reactive and who was proactive, who was defensive and who was not. But that is not the main

point. The main point is that the JNA was doing so as an instrument of Serbian political and

military policy and not as an organ of the SFRY, whose political institutions had been effectively

paralysed or taken over by Serbia. By late 1991 the JNA, under Ka dijević’s military leadership,

was already a de facto organ of the emergent Serbian State. After January 1992, Milošević was

directly exercising both military and political authority.

64. Finally, there is the third ground on which we argue that conduct is attributable to Serbia.

Conduct by other Serb forces breached the Convention directly . We do not maintain that the other

Serb forces were themselves organs of the emergent Serbian State  with the sole exception of the

Territorial Defence of Serbia, w hich Serbia has accepted “should be equated to the actions of the

JNA and attributed to the JNA” 97. Croatia’s argument is that conduct by other Serb forces is

9CR 2014/15, p. 42, para. 38 (Lukić).

9CR 2014/16, p. 16, para. 83 (Ignjatović). - 32 -

attributable to Serbia under Article 8, since they operated under the instructions, direction or

control of the JNA.

65. Serbia’s attack on the Article 8 argument was self -defeating. It quoted the conclusion

drawn by the ICTY in Mrkšić that “what had been established as the de facto reality . . . in the Serb

military operations in Croatia, was the c omplete command and full control by the JNA of all

military operations” 98. It then showed you some of the evidence leading to that conclusion: the

Circular of the Chief of the General Staff and the Order of the Command of the 1st Military

District, both of October 1991. These documents in fact support the ICTY ’s conclusion 99. They

comprise “some of the evidence”, because the ICTY said they “serve to conf irm . . . what had been

established as the de facto reality”. The ICTY was satisfied of that on the basis of the totality of

the evidence before it . Mr. Ignjatović tried to transmogrify this conclusion into its opposite, but

without presenting any direct evidence that the principle of “complete command and full control by

the JNA of all military operation s” was not implemented . The ICTY expressly said it was

implemented, that it was the “de facto reality”. The Court lives in the real world.

VI. Conclusion

66. Mr. President, Members of the Court, I conclude where my submissions began: with the

danger, identified by Judge Shahabuddeen, that Serbia ’s arguments in the Bosnia case  and

repeated here  could “lead in one way or another” to an “inescapable time- gap” that would

undermine the object and purpose of the Genocide Convention, “ to safeguard the very existence of

certain human groups and . . . to confirm and endorse the most elementary principles of

100
morality” . That remains an apt description of where Serbia’ s arguments in this case would lead .

Serbia has quibbled with our arguments on attribution and jurisdiction, and I have shown that its

quibbling does not stand up to scrutiny . But Serbia has nothing at all to say on this fundamental

point. The word “continuity” did not pass its lips despite what it said on 27 April, on which it now

relies. However you choose to frame the legal issues in this case, Mr. President, Members of the

98
Prosecutor v. Mrkšić et al, IT-95-13, Trial Chamber Judgement, 27 Sep. 2007, para. 89.
9CR 2014/15, pp. 59–60, paras. 45–48 (Ignjatović).
100
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro) , Preliminary Objections, Judgment, I.C.J. Reports 1996 (II); separate opinion
of Judge Shahabuddeen, p. 635. - 33 -

Court, you cannot allow the Genocide Convention to sink into irrelevance in the circumstances of

State dissolution where it is most needed, to tremble and retreat befor e “a ghost of a hollow
101
sovereignty” .

67. Mr. President, Members of the Court, thank you for your attention. I ask you to call

upon the Agent.

The PRESIDENT: Thank you, Professor Crawford. I now call on the Agent of Croatia.

Madam, you have the floor.

Ms CRNIĆ-GROTIĆ: Good morning to you. Thank you, Mr. President, for allowing me

now to, first of all, reply to Judge Greenwood’s question on 20 March. He asked about the

unsigned witness statements that were attached to the Croatian Memorial. And t he question was:

“Would statements of that kind be admissible in proceedings in the courts of Croatia, and would

they have been admissible in such proceedings at the time that the statements were taken?” And

the answer provided by Croatia is as follows.

The criminal legal system in Croatia is, and was in the early 1990s, based on the C ivil Law

which affords a central role to the investigating judge. It therefore follows a very different

approach to the collection of evidence, including witness statement s, than that adopted by

international courts and tribunals, or indeed courts in common law jurisdictions.

Police witness statements  or records  taken from victims and witnesses are sent

together with the police file to the State Prosecutor and, if charges are laid, to the investigating

judge. There is no requirement that these police statements be signed by the victim or witness.

The investigating judge will then decide on the basis of the information before him or her,

including the police witness statements, what witnesses he or she wishes to interrogate. Following

such interrogation, formal statements are drawn up for each of the witnesses which are then

admissible in a court of law. As such, while the police statements are admitted into the court

process, and form the basis for the statements admitted in court, they are not themselves admissible

in court proceedings in Croatia, and the same applies to non-police statements.

10Lighthouses in Crete and Samos (France v. Greece), Judgment, 1937, P.C.I.J., Series A/B, No. 71; separate
opinion of Judge Hudson, p. 127. - 34 -

The unsigned police witness statements included in the Applicant’s Memorial, and addressed

by Judge Greenwood’s question, have been prepared in accordance with the Croatian Criminal

102
Procedure Code in force. They are part of the formal, initial stages of a criminal investigation as

carried out by the police authorities.

Croatia’s understanding is that procedures before international courts, including the ICTY

and the ICJ, follow a different procedure from that of national legal systems. Its case has been

prepared on the basis of the approach taken by such courts , in circumstances in which they do not

allocate a role for an investigating judge to gather evidence, including witness statements. In any

event, as you heard, the additional step has been taken for the purposes of these proceedings of

requiring witnesses to sig n confirmatory statements indicating that the content of the ir original

statement is true.

As highlighted by Ms Ní Ghrálaigh yesterday, this Court has accepted witness statements of

Croatia’s witnesses of fact without following the Croatian procedures 10.

Croatia would be pleased to respond to this question in greater detail, if that would be of

assistance to the Court. Thank you.

And now, if you will allow me, I will proceed with the closing remarks on behalf of Croatia.

The PRESIDENT: Please proceed,Madam Professor. You have the floor.

Ms CRNIĆ-GROTIĆ: Thank you.

C LOSING R EMARKS

1. Mr. President, Members of the Court, over the last few weeks Croatia addressed the events

and circumstances that caused us to come to this Court . We have presented you with evidence that

the Respondent is responsible for the crime of genocide against the Croats living in the area that

was intended to be a part of a Greater Serbia. We have also shown you, by contrast, that there was

no crime of genocide committed against the Serbs during or after Operation Storm in August 1995.

10Criminal Procedure Code of the Republic of Croatia (Official Gazette Nos. 53/91, 91/92), A142;le
Criminal Procedure Code of the Republic of Croatia (Official Gazette No. 110/97)177; Criminal Procedure
of Croatia (Official Gazette No. 152/08), Article 207.
103
Cite transcript. - 35 -

2. Croatia submitted its application in 1999, whenMr. Milošević was still in power in Serbia.

Even though he was removed from office in 2000, the change in government did not bring about a

change in attitudes regarding the events in Croatia, despite our initial hopes . Denial seems to be

the constant in the string of governments in Serbia resulting in continued and ongoing setbacks in

negotiations. We have witnessed similar denials in this courtroom over these last few weeks.

3. Over the years, since the filing of the A pplication, the case -law of the ICTY has

developed significantly. Through that development, Croatia ’s claims have been corroborated and

substantiated. A number of Serb perpetrators have been found guilty, and have been convicted for

the most egregious crimes committed against Croatia and it s citizens. The ICTY has found the

existence of a Joint Criminal Enterprise of the Serbian political and military leadership, which had

as its common purpose the establishment of an ethnically Serb territory through the displacement of

the non-Serb population  that is a quote from the ICTY. It is true that nobody has ever been

charged with genocide and the Respondent seems to give great weight to that fact. It does not seem

to be as appreciative of the fact that nobody has ever been convicted by the ICT Y for any crime

against the Serbs in Croatia, let alone the crime of genocide that it claims. The reality is that the

ICTY judges have never been asked to consider that the events we have brought to this Court to

include acts of genocide. You are the first international court or tribunal to address these issues by

reference to the crime of genocide.

4. The case-law of the ICTY has also contributed greatly in establishing the facts regarding

what happened in the region. As this Court has put it, its fin dings are highly persuasive and the

Applicant has relied on them as part of its evidence . The ICTY has used extensive resources and

time to establish facts in cases that it has examined . However, as Croatia has explained, its

findings on the law and the legal characteri zation of the established crimes cannot serve to provide

answers for all the issues which arise before this Court . The ICTY deals exclusively with the

individual criminal responsibility of the accused. (Its view may be narrowly focused as it considers

only those crimes that are included in the indictments. ) The ICTY, unlike this Court, has no

jurisdiction over states.

5. The Applicant looks to this Court to take a more all -embracing view of the events from

1991 to 1995, to take them in t heir totality, and in the context of the political situation that - 36 -

prevailed at that time in the aftermath of the fall of the Berlin Wall and communism in Europe,

democratic elections in former communist states, and to take account of the new realities that some

were not ready to accept . We ask the Court to look into the “sui generis” situation in the specific

context of the disintegration of the SFRY and the emergence on its territory of five ne w States

amidst great violence and disorder . We ask the Court to see the role of extreme Serbian

nationalism for what it was  a criminal attempt to create “one state for all Serbs” by pursuing the

project of Greater Serbia through genocidal acts, not only in Croatia but also in Bosnia and

Herzegovina and Kosovo.

6. As you will have seen for yourselves, there are still public officials and others in Serbia

who are unwilling to confront the truth about the events that began more than two decades ago.

For this reason the past remains present, and cannot be consigned to history. As we stated at the

beginning of these proceedings, they continue to resonate . The Court continues to have an

important role in addressing the facts and confirming, once and for all, that the requirements of the

1948 Convention have been met in relation to Croatia ’s application (and not met in relation to

Serbia’s counter-claim). The Applicant believes that the P arties to this case need the judgment of

this Court to close this chapter and to move forward in their mutual relations.

7. Croatia has moved forward. It is now a member of the European Union (EU), after

passing through the intensive scrutiny involved in applying for acc ession to the EU, with its

long-established democratic institutions, with the high degree of human rights protect ion, and with

the protection of its minorities, both at national and international level. Serbia apparently wants to

do the same, but this may prove to be difficult if it continues dow n its path of denials and of

refusing to confront realities. As I stat ed at the beginning of oral pleadings, Croatia wishes to

achieve full reconciliation with Serbia. We are neighbouring countries ; we have many ties 

human, economic, cultural and others. But our relations are also burdened by Serbia ’s refusal to

confront its past and resolve the unresolved issues of the 1990s, including Serbia’s refusal to accept

the judgements of the ICTY and of this Court. We look to this Court for its assistance in handing

down a judgment that will assist our two States to address th e past and resolve the issues that

continue to divide us. - 37 -

8. There is an outstanding issue that is particularly painful  this is the issue of missing

persons, who are missing because of genocidal acts in 1991- 1992. Almost 20 years after the

cessation of hostilities there are some 865 Croats missing from that period, with families and

friends looking for closure . There are a number of initiatives which aim at resolving their fate,

which I describe to the Court by way of replying to the second pa rt of th e question put by

Judge Cançado Trindade to the Parties on 14 March 2014. So, the question was:

“Have there been any recent initiatives to identify, and to clarify further the fate
of the disappeared persons still missing to date?”

9. In 1995, in Dayton, Croatia and Serbia concluded an agreement, the purpose of which was

104
to establish the fate of all missing persons and to release the prisoners . As a result of the

agreement, a joint commission was established , and some progress was made with respect to

missing persons:

(i) from August 1996 till 1998 Croatia w as given access to information, the so -called

protocols, for 1,063 persons who were buried at the Vukovar New Cemetery and these

protocols helped in the identification of 938 people;

(ii) in 2001, exhumations started with respect to unidentified bodies bu ried in the Republic of

Serbia (at marked gravesites). Thus far, the remains of 394 persons have been exhumed,

but it is regrettable that only 103 bodies have been handed over to the Republic ofCroatia;

(iii) to date only one mass grave has been discovered in Croatia, with 13 bodies, as a result of

information provided by Serbia. This was in 2013 in Sotin in Eastern Slavonia.

10. Whilst there has been some progress, there are a number of outs tanding issues that need

to be resolved. Recently, the Commission in Belgrade is, once again, seeking to act as

representative of all missing persons of Serb ethnicity, including those who are citizens of Croatia.

This is contrary to what was agreed in 19 95, when the parties decided that all missing persons who

disappeared in Croatia fell within the competence of Croatian authorities which, for their part,

recognized Serbia’s interest and role with regard to persons of Serbian ethnicity.

11. There are other outstanding issues. These include:

10Agreement on Co -operation in Finding Missing Persons in 1995. M. Granić–M. Milutinović, Dayton,
17 Nov. 1995. - 38 -

(i) our request for the return of documents seized by the JNA from the Vukovar hospital in

1991, which are essential for identification of the people removed from the hospital. They

are still not delivered. When the President of the Republic of Serbia, Boris Tadić, visited

Vukovar in November 2010, a small part of these documents was returned, following

which there has been no progress at all;

(ii) one of the outstanding issues is also t he provision of information on the locations of mass

graves and individual graves in the territory of the Republic of Croatia, as well as the

so-called “secondary“ graves, into which the bodies from primary mass and individual

graves were moved and also the issue of the unmarked graves in Serbia.

12. So, t he issue of the mis sing persons thus remains one of the key problems in these

proceedings. Croatia started a campaign , with the view to making more discoveries and to help

members of the families of the missing persons. As part of the campaign , public meetings are

organized in places where information might be available both for the missing Croats and the

Serbs. Leaflets and telephone lines are available, inviting people to provide information that would

lead to the discovery of these sites.

13. Mr. President, t here is no dispute between the P arties that serious crimes were

perpetrated against the members of the Croat ethnic group, capable of constituting the underlying

acts listed in the five paragraphs of Article II of the Convention including killings, causing serious

bodily and mental harm. The Respondent accepts that these acts were committed by members of

the JNA and forces associated with it . These acts were widespread and systematic. They caused

physical and mental harm, and resulted in killings and in the delibe rate infliction of conditions of

life calculated to bring about physical destruction of groups of ethnic Croats . Article I of the

Genocide Convention imposes two distinct yet connected positive obligations to prevent and to

punish genocide. We have set o ut why the Respondent has failed to meet its obligations on both

accounts.

14. Mr. President, genocide was committed on the territory of Croatia, by or on behalf of the

Respondent. The evidence on that is conclusive . The Respondent, acting through the J NA and

other organs of the State, is responsible under international law for those acts of genocide. It is also

responsible for having failed to prevent genocide from being committed against ethnic Croats. The - 39 -

Applicant has shown that the Respondent knew, or should have known, that there was a serious risk

that genocide would be committed or was being committed against Croats by paramilitaries . We

have given clear examples of that, during these proceedings. Moreover, the importance 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 ha s failed to indict and

prosecute any of the high-profile military or political figures responsible for the crimes committed.

15. Furthermore, Croatia still demands the return of its cultural properties seized in the

course of the genocidal campaign in Croatia . Although some of it has been returned from 2001 to

2013, there are still almost 25,000 items from 45 museums and 1 ,000 cultural and religious

artefacts, as well as a number of private collections, archives and libraries.

16. Mr. President, Members of the Court, Croatia believes that this long -standing dispute

between the two States should be resolved in accordance with the requirements of the Genocide

Convention, and international law. This case has great importance for the Croatian people and for

the stability and peaceful co -existence in the region. The Court has a role to play, and we permit

ourselves to express the hope that it will fulfil its role as guardian of the Convention.

17. And now, this brings me to our concluding submissions . I limit myself today to the

submissions in relation to our c laim, and on Tuesday 1 April, I will read out the submissions in

relation to the counter-claim brought by Serbia.

SUBMISSIONS

So the submissions are as follows. O n the basis of the facts and legal arguments presented

by the Applicant, it respectfully requests the International Court of Justice to adjudge and declare:

1. That it has jurisdiction over all the claims raised by the Applicant, and there exists no bar to

admissibility in respect of any of them.

2. That the Respondent is responsible for violat ions of the Convention on the Prevention and

Punishment of the Crime of Genocide:

(a) in that persons for whose conduct it is responsible committed genocide on the territory of the

Republic of Croatia against members of the Croat ethnic group on that territory, by:

 killing members of the group; - 40 -

 causing deliberate bodily or mental harm to members of the group;

 deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;

 imposing measures intended to prevent births within the group;

with the intent to destroy that group in whole or in part, contrary to Article II of the

Convention;

(b) in that persons for whose conduct it is responsible conspired to commit the acts of genocide

referred to in paragraph (a), were complicit in respect of those acts, attempted to commit

further such acts of genocide and incited others to commit such acts, contrary to Article III of

the Convention;

(c) in that, aware that the acts of genocide referred to in paragraph (a) were being or would be

committed, it failed to take any steps to prevent those acts, contrary to Article I of the

Convention;

(d) in that it has failed to bring to trial persons within its jurisdiction who are suspected on

probable grounds of involvement in the acts of genocide referred to in paragraph (a), or in the

other acts referred to in paragraph (b), and is thus in continuing breach of Articles I and IV of

the Convention;

(e) in that it has failed to conduct an effective investigation in to the fate of Croatian citizens who

are missing as a result of the genocidal acts referred to in paragraphs (a) and (b), and is thus in

continuing breach of Articles I and IV of the Convention.

3. That as a consequence of its responsibility for these breaches of the Convention, the

Respondent is under the following obligations:

(a) to take immediate and effective steps to submit to trial before the appropriate judicial authority,

those citizens or other persons within its jurisdiction including but not l imited to the leadership

of the JNA during the relevant time period who are suspected on probable grounds of having

committed acts of genocide as referred to in paragraph (1) (a), or any of the other acts referred

to in paragraph (1) (b), and to ensure tha t those persons, if convicted, are duly punished for

their crimes; - 41 -

(b) to provide forthwith to the Applicant all information within its possession or control as to the

whereabouts of Croatian citizens who are missing as a result of the genocidal acts for w hich it

is responsible, to investigate and generally to cooperate with the authorities of the Applicant to

jointly ascertain the whereabouts of the said missing persons or their remains;

(c) forthwith to return to the Applicant all remaining items of cultu ral property within its

jurisdiction or control which were seized in the course of the genocidal acts for which it is

responsible; and

(d) to make reparation to the Applicant, in its own right and as parens patriae for its citizens, for

all damage and other loss or harm to person or property or to the economy of Croatia caused by

the foregoing violations of international law, in a sum to be determined by the Court in a

subsequent phase of the proceedings in this case. The Applicant reserves the right to introduce

to the Court a precise evaluation of the damages caused by the acts for which the Respondent is

held responsible.

Thank you, Mr. President, Members of the Court.

The PRESIDENT: Thank you, Professor Crnić-Grotić. The Court takes note of the final

submissions which you have now read on behalf of Croatia on its own claims. The Court will meet

again on Thursday 27 March 2014, between 3.00 p.m. and 6.00 p.m. to hear Serbia begin the

presentation of its second round of oral argument. Thank you. The Court is adjourned.

The Court rose at 11.25 a.m.

___________