Summary of the Judgment of 26 February 2007

INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands

Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.icj-cij.org

Summary
Not an official document

Summary 2007/2
26 February 2007

Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro)

Summary of the Judgment of 26 February 2007

History of the proceedings and submissions of the Parties (paras. 1-66)

The Court begins by recapitulating the various stages of the proceedings (this history may be
found in Press Release No.2006/9 of 27February2006). It also recalls the final submissions
presented by the Parties at the oral proceedings (see Press Release No. 2006/18 of 9 May 2006).

Identification of the respondent partyaras. 67-79)

The Court first identifies the respondent party before it in the proceedings. It observes that
after the close of the oral proceedings, by a lette r dated 3 June 2006, the President of the Republic
of Serbia informed the Secretary-General of the United Nations that, following the Declaration of
Independence adopted by the National Assembly of Montenegro on 3 June 2006, “the membership
of the state union Serbia and Montenegro in the United Nations, including including all organs and
organisations of the United Nations system, [would be] continued by the Republic of Serbia on the

basis of Article 60 of the Constitutional Charter of Serbia and Montenegro”. On 28 June 2006, by
its resolution 60/264, the General Assembly admitted the Republic of Montenegro as a new
Member of the United Nations.

After having examined the views expressed on this issue by the Agent of Bosnia and
Herzegovina, the Agent of Serbia and Montenegro and the Chief State Prosecutor of Montenegro,
the Court observes that the facts and events on which the final submissions of Bosnia and

Herzegovina are based occurred at a period of time when Serbia and Montenegro constituted a
single State.

It notes that Serbia has accepted “continuity between Serbia and Montenegro and the
Republic of Serbia”, and has assumed responsibility for “its commitments deriving from
international treaties concluded by Serbia and Montenegro”, thus including commitments under the
Genocide Convention. Montenegro, on the other hand, does not claim to be the continuator of

Serbia and Montenegro.

The Court recalls a fundamental principle that no State may be subject to its jurisdiction
without its consent. It states th at the events related clearly show that the Republic of Montenegro
does not continue the legal personality of Serb ia and Montenegro; it cannot therefore have
acquired, on that basis, the status of Respondent in the case. It is also clear that Montenegro doesnot give its consent to the jurisdiction of the Co urt over it for the purposes of the dispute.
Furthermore, the Applicant did not assert that M ontenegro is still a party to the present case; it
merely emphasized its views as to the joint and several liability of Serbia and of Montenegro.

The Court thus notes that the Republic of Serb ia remains a respondent in the case, and at the
date of the present Judgment is indeed the only Respondent. Accordingly, any findings that the

Court may make in the operative paragraph of the Judgment are to be addressed to Serbia. That
being said, the Court recalls that any responsibility for past events determined in the present
Judgment involved at the relevant time the State of Serbia and Montenegro. It further observes that
the Republic of Montenegro is a party to the Genocide Convention and that Parties to that
Convention have undertaken the obligations flow ing from it, in particular the obligation to

co-operate in order to punish the perpetrators of genocide.

The Court’s jurisdiction (paras. 80-141)

⎯ The jurisdictional objection of the Respondent

The Court proceeds to examine an important i ssue of jurisdictional character raised by the
“Initiative to Reconsider ex officio Jurisdiction over Yugoslavia” filed by the Respondent in 2001
(hereinafter “the Initiative”). It explains that the central question raised by the Respondent is
whether at the time of the filing of the Applicat ion instituting proceedings the Respondent was or
was not the continuator of the Socialist Federal Re public of Yugoslavia (SFRY). The Respondent

now contends that it was not a continuator State, and that therefore not only was it not a party to the
Genocide Convention when the proceedings were instituted, but it was not then a party to the
Statute of the Court by virtue of membership in the United Nations; and that, not being such a
party, it did not have access to the Court, with the consequence that the Court had no jurisdiction
ratione personae over it.

The Court recalls the circumstances underlying that Initiative. Briefly stated, the situation
was that the Respondent, after claiming that since the break-up of the SFRY in 1992 it was the
continuator of that State, and as such mainta ined the membership of the SFRY in the United
Nations, had on 27October2000 applied, “in light of the implementation of the Security Council
resolution777(1992)” to be admitted to the Or ganization as a new Member, thereby in effect

relinquishing its previous claim.

In order to clarify the background to these issues, the Court reviews the history of the status
of the Respondent with regard to the United Nations from the break-up of the SFRY to the
admission of Serbia and Montenegro on 1 November 2000 as a new Member.

⎯ The response of Bosnia and Herzegovina

The Court observes that the Applicant contends that the Court should not examine the
question raised by the Respondent in its Initiative. Bosnia and Herzegovina firstly argues that the
Respondent was under a duty to raise the issue of whether the FRY was a Member of the United

Nations at the time of the proceedings on the prel iminary objections, in 1996, and that since it did
not do so, the principle of res judicata, attaching to the Court’s 1996 Judgment on those objections,
prevents it from reopening the issue. Bosnia a nd Herzegovina secondly maintains that the Court
itself, having decided in 1996 that it had jurisdiction in the case, would be in breach of the principle
of resjudicata if it were now to decide otherwise, and that the Court cannot call in question the
authority of its decisions as res judicata.

With respect to the first contention of Bosnia and Herzegovina. the Court notes that if a party
to proceedings before the Court chooses not to raise an issue of jurisdiction by way of the
preliminary objection procedure under Article 79 of th e Rules, that party is not necessarily thereby
debarred from raising such issue during the proceedings on the merits of the case. The Court does not find it necessary to consider whether the conduct of the Respondent
could be held to constitute an acquiescence in the jurisdiction of the Court. Such acquiescence, if
established, might be relevant to questions of consensual jurisdiction, but not to the question
whether a State has the capacity under the Statute to be a party to proceedings before the Court.
The Court observes that the latter question may be re garded as an issue prior to that of jurisdiction

ratione personae , or as one constitutive element within the concept of jurisdiction ratione personae.
Either way, unlike the majority of questions of juri sdiction, it is not a matter of the consent of the
parties. Itfollows that, whether or not the Respondent should be held to have acquiesced in the
jurisdiction of the Court in the case, such acqui escence would in no way debar the Court from
examining and ruling upon the question it raised. The same reasoning applies to the argument that
the Respondent is estopped from raising the matter at this stage, or debarred from doing so by

considerations of good faith. The Court therefore turns to examine the second contention of Bosnia
and Herzegovina that the question of the capacity of the Respondent to be a party to proceedings
before the Court has already been resolved as a matter of res judicata by the 1996 Judgment on
jurisdiction.

⎯ The principle of res judicata

After having reviewed its relevant past decisions, notably its 1996 Judgment on Preliminary
Objections in the case and the2003 Judgment in the Application for Revision case, the Court
considers the principle of res judicata, and its application to the 1996 Judgment.

The Court recalls that the principle of res judicata appears from the terms of the Statute of
the Court and the Charter of the United Nations. Th at principle signifies that the decisions of the
Court are not only binding on the parties, but are final, in the sense that they cannot be reopened by
the parties as regards the issues that have been determined, save by procedures, of an exceptional
nature, specially laid down for that purpose (the procedure for revision se t down in Article61 of

the Statute). In the view of the Court, two purposes underlie the principle of res judicata : first, the
stability of legal relations requires that litigation come to an end; secondly, it is in the interest of
each party that an issue which has already been adjudicated in favour of that party be not argued
again.

The Court observes that it has been suggested inter alia by the Respondent that a distinction

may be drawn between the applicati on of the principle of res judicata to judgments given on the
merits of a case and judgments determining the Court’s jurisdiction, in response to preliminary
objections. The Respondent contends that the latter “do not and cannot have the same
consequences as decisions on the merits”. The Court dismisses this contention, explaining that the
decision on questions of jurisdiction is given by a judgment, and Article 60 of the Statute provides

that “[t]he judgment is final and without appe al”, without distinguishing between judgments on
jurisdiction and admissibility, and judgments on the merits. The Court does not uphold the other
arguments of the Respondent in respect of res judicata . It states that, should a party to a case
believe that elements have come to light subse quent to the decision of the Court which tend to
show that the Court’s conclusions may have been based on incorrect or insufficient facts, the
Statute provides for only one procedure: that under Article61, which offers the possibility of the

revision of judgments, subject to the restrictions stated in that Article. In this regard, it recalls that
the Respondent’s Application for revision of the 1996 Judgment in the case was dismissed, as not
meeting the conditions of Article 61.

⎯ Application of the principle of res judicata to the 1996 Judgment

The Court recalls that the operative part of a judgment of the Court possesses the force of
res judicata. The operative part of the 1996 Judgment stated that the Court found “that, on the basis
of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, it has
jurisdiction to decide upon the dispute”. Accord ing to the Court, that jurisdiction is thus
established with the full weight of the Court’s judicial authority. For a party to assert today that, atthe date the 1996 Judgment was given, the Court had no power to give it, because one of the parties
can now be seen to have been unable to come befo re the Court is to call in question the force as
res judicata of the operative clause of the Judgment. Therefore, the Court need not examine the
Respondent’s objection to jurisdiction based on its contention as to its lack of status in 1993.

The Respondent has however advanced a number of arguments tending to show that the

1996 Judgment is not conclusive on the matter. It has been inter alia suggested that, for the
purposes of applying the principle of resjudicata to a judgment on preliminary objections, the
operative clause to be taken into account and given the force of res judicata is the decision rejecting
specified preliminary objections, rather than the broad ascertainment upholding jurisdiction. The
Court does not uphold this contention, explaining that it does not consider that it was the purpose of

Article79 of the Rules of Court to limi t the extent of the force of resjudicata attaching to a
judgment on preliminary objections, nor that, in the case of such judgment, such force is
necessarily limited to the clauses of the dispositifspecifically rejecting particular objections. If any
question arises as to the scope of res judicata attaching to a judgment, it must be determined in each
case having regard to the context in which the judgment was given. It may be necessary to

distinguish between, first, the issues which ha ve been decided with the force of res judicata , or
which are necessarily entailed in the decision of those issues; secondly any peripheral or
subsidiary matters, or obiter dicta; and finally matters which have not been ruled upon at all.

The Court notes that the fact that it has dealt, in a number of past cases, with jurisdictional
issues after having delivered a judgment on jurisdiction does not support the contention that such a

judgment can be reopened at any time, so as to permit reconsideration of issues already settled with
the force of resjudicata . There is an essential difference between those cases mentioned in
paragraph127 of the Judgment and the present case : the jurisdictional issues examined at a late
stage in those cases were such that the decision on them would not contradict the finding of
jurisdiction made in the earlier judgment. By cont rast, the contentions of the Respondent in the

present case would, if upheld, effectively reverse the 1996 Judgment.

Addressing the argument of the Respondent that the issue whether the FRY had access to the
Court had not been decided in the 1996 Judgment, the Court notes that the statements it made in the
2004 Judgments in the Legality of Use of Force casesdonotsignifythatin1996theCourtwas
unaware of the fact that the solution adopted in the United Nations as to the question of

continuation of the membership of the SFRY “[was] not free from legal difficulties”. As the Court
recognized in the 2004 Judgments, in 1999 ⎯ and even more so in 1996 ⎯ it was by no means so
clear as the Court found it to be in 2004 that the Respondent was not a Member of the United
Nations. Although the legal complications of th e position of the Respondent in relation to the
United Nations were not specifically mentioned in the 1996 Judgment, the Court affirmed its

jurisdiction to adjudicate upon the dispute and since the question of a State’s capacity to be a party
to proceedings is a matter which the Court must, if necessary, raise ex officio, this finding must as
a matter of construction be understood, by necessary implication, to mean that the Court at that
time perceived the Respondent as being in a position to participate in cases before the Court. On
that basis, it proceeded to make a finding on jurisdiction which would have the force of

res judicata. The Court does not need to go behind that finding and consider on what basis the
Court was able to satisfy itself on the point. Whether the Parties classify the matter as one of
“access to the Court” or of “jurisdiction ratione personae ”, the fact remains that the Court could not
have proceeded to determine the merits unless the Respondent had had the capacity under the
Statute to be a party to proceedings before the Court. That the FRY had the capacity to appear
before the Court in accordance with the Statute was an element in the reasoning of the

1996Judgment which can ⎯ and indeed must ⎯ be read into the Judgment as a matter of logical
construction.⎯ Conclusion: jurisdiction affirmed

The Court concludes that, in respect of the contention that the Respondent was not, on the
date of filing of the Application instituting proceedings, a State having the capacity to come before
the Court under the Statute, the principle of resjudicata precludes any reopening of the decision

embodied in the 1996 Judgment. The Respondent has however also argued that the 1996 Judgment
is not resjudicata as to the further question whether the FRY was, at the time of institution of
proceedings, a party to the Genocide Convention, an d has sought to show that at that time it was
not, and could not have been, such a party. The Court however considers that the reasons given for
holding that the 1996Judgment settles the question of jurisdiction in this case with the force of
res judicata are applicable afortiori as regards this contention, since on this point the

1996Judgment was quite specific, as it was not on the question of capacity to come before the
Court. The Court thus concludes that, as stated in the 1996Judgment, it has jurisdiction, under
ArticleIX of the Genocide Convention, to adjudi cate upon the dispute. Itfollows that the Court
does not find it necessary to consider the questions , extensively addressed by the Parties, of the
status of the Respondent under the Charter of the United Nations and the Statute of the Court, and

its position in relation to the Genocide Convention at the time of the filing of the Application.

The applicable law (paras. 142-201)

The Court first recalls that its jurisdiction in the case is based solely on ArticleIX of the
Genocide Convention, since all the other grounds of jurisdiction invoked by the Applicant were

rejected in the 1996 Judgment on jurisdiction. Article IX provides that

“Disputes between the Contracting Pa rties relating to th e interpretation,
application or fulfilment of the present Co nvention, including those relating to the
responsibility of a State for genocide or for any of the other acts enumerated in
Article III, shall be submitted to the International Court of Justice at the request of any

of the parties to the dispute”.

It follows that the Court may rule only on di sputes between the States parties relating to the
interpretation, application or fulfilment of th e Convention and that it has no power to rule on
alleged breaches of other obligations under in ternational law, not amounting to genocide,

particularly those protecting human rights in armed conflict. That is so even if the alleged breaches
are of obligations under peremptory norms, or of obligations which protect essential humanitarian
values, and which may be owed erga omnes .

⎯ Obligations imposed by the Convention on the Contracting Parties

The Court notes that there exists a dispute between the Parties as to the meaning and the
legal scope of ArticleIX of the Convention, especially about whether the obligations the
Convention imposes upon the Parties are limited to legislate, and to prosecute or extradite, or
whether the obligations of the States parties exte nd to the obligation not to commit genocide and
the other acts enumerated in Article III.

The Court observes that what obligations the Convention imposes upon the parties to it
depends on the ordinary meaning of the terms of the Convention read in their context and in the
light of its object and purpose. It reviews th e wording of ArticleI, which provides inter alia that
“[t]he 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”. The Court

finds that ArticleI, in particular its undertaking to prevent, creates obligations distinct from those
which appear in the subsequent Articles. This fi nding is confirmed by the preparatory work of the
Convention and the circumstances of its conclusion. The Court then considers whether the Parties are under an obligation not to commit genocide
themselves since such an obligation is not ex pressly imposed by the actual terms of the
Convention. In the view of the Court, taking into account the established purpose of the
Convention, the effets of Article I is to prohibit States from themselves commiting genocide. Such
a prohibition follows, first, from the fact that ArticleI categorizes genocide as “a crime under

international law”: by agreeing to such a categor ization, the States parties must logically be
undertaking not to commit the act so described. Secondly, it follows from the expressly stated
obligation to prevent the commission of acts of geno cide. It would be paradoxical, if States were
thus under an obligation to prevent, but were not forbidden to commit such acts through their own
organs, or persons over whom they have such firm control that their conduct is attributable to the
State concerned under international law. In shor t, the obligation to prev ent genocide necessarily

implies the prohibition of commission of genocide. The Court notes that its conclusion is
confirmed by one unusual feature of the wording of Article IX, namely the phrase “including those
[disputes] relating to the responsibility of a State for genocide or any of the other acts enumerated
in Article III”. According to the English text of the Convention, the responsibility contemplated is
responsibility “for genocide”, not merely responsibility “for failing to prevent or punish genocide”.

The particular terms of the phrase as a whole confirm that Contracting Parties may be held
responsible for genocide and the other acts enumerated in Article III of the Convention.

The Court subsequently discusses three further arguments which may be seen as
contradicting the proposition that the Convention im poses a duty on the Contracting Parties not to
commit genocide and the other acts enumerated in Article III.

The first is that, as a matter of principle, international law does not recognize the criminal
responsibility of the State, and the Genocide Convention does not provide a vehicle for the
imposition of such criminal responsibility. The Court observes that the obligation for which the
Respondent may be held responsible, in the even t of breach, in proceedings under ArticleIX, is

simply an obligation arising under international law, in this case the provisions of the Convention,
and that the obligations in question and the responsibilities of States that would arise from breach
of such obligations are obligations and responsib ilities under international law. They are not of a
criminal nature.

The second is that the nature of the Conven tion is such as to exclude from its scope State

responsibility for genocide and the other enumerated acts. The Convention, it is said, is a standard
international criminal law convention focussed essentially on the criminal prosecution and
punishment of individuals and not on the responsibility of States. However, the Court sees nothing
in the wording or the structure of the provisions of the Convention relating to individual criminal
liability which would displace the meaning of ArticleI, read with paragraphs(a) to (e) of

ArticleIII, so far as these pr ovisions impose obligations on States distinct from the obligations
which the Convention requires them to place on individuals.

Concerning the third and final argument, the Court examines the drafting history of the
Convention, in the Sixth Committee of the General Assembly, which is said to show that “there
was no question of direct responsibility of the State for acts of genocide”. However, having

reviewed said history, the Court concludes that it may be seen as supporting the conclusion that
Contracting Parties are bound not to commit genoc ide, through the actions of their organs or
persons or groups whose acts are attributable to them.

⎯ Question whether the Court may make a finding of genocide by a State in the absence of a

prior conviction of an individual for genocide by a competent court?

The Court observes that if a State is to be responsible because it has breached its obligation
not to commit genocide, it must be shown that genocide as defined in the Convention has been
committed. That will also be the case with conspiracy under Article III, paragraph (b) , and
complicity under Article III, paragraph (e) ; and, for purposes of the obligation to prevent genocide. According to the Respondent, the condition sine qua non for establishing State responsibility
is the prior establishment, according to the rules of criminal law, of the individual responsibility of
a perpetrator engaging the State’s responsibility.

In the view of the Court, the different proced ures followed by, and powers available to, the
Court and to the courts and tribunals trying persons for criminal offences, do not themselves

indicate that there is a legal bar to the Cour t itself finding that genocide or the other acts
enumerated in ArticleIII have been committed. Under its Statute the Court has the capacity to
undertake that task, while applying the standard of proof appropriate to charges of exceptional
gravity. Turning to the terms of the Convention itself, the Court has already held that it has
jurisdiction under ArticleIX to find a State responsible if genocide or other acts enumerated in

Article III are committed by its organs, or persons or groups whose acts are attributable to it.

The Court accordingly concludes that State responsibility can arise under the Convention for
genocide and complicity, without an individual being convicted of the crime or an associated one.

⎯ Possible territorial limits of the obligations

The Court observes that the substantive obligations arising from Articles I and III are not on
their face limited by territory. They apply to a St ate wherever it may be acting or may be able to
act in ways appropriate to meeting the obligations in question.

The obligation to prosecute imposed by Article VI is by contrast subject to an express

territorial limit. The trial of pe rsons charged with genocide is to be in a competent tribunal of the
State in the territory of which the act was committ ed, or by an international penal tribunal with
jurisdiction.

⎯ The question of intent to commit genocide

The Court notes that genocide as defined in ArticleII of the Convention comprises “acts”
and “intent”. It is well established that the acts ⎯

“(a)Killingmembersofthegroup;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group”; and

(e) “Forcibly transferring children of the group to another group” ⎯

themselves include mental elements. The Court stre sses that, in addition to those mental elements,
Article II requires a further mental element: the establishment of the “intent to destroy, in whole or

in part,. .. [the protected] group, as such”. It is often referred to as a special or specific intent or
dolus specialis. It is not enough that the members of the group are targeted because they belong to
that group. Something more is required. The acts listed in ArticleII must be done with intent to
destroy the group as such in whole or in part. The words “as such” emphasize that intent to destroy
the protected group.⎯ Intent and “ethnic cleansing”

The Court states that “ethnic cleansing” can on ly be a form of genocide within the meaning
of the Convention, if it corresponds to or falls within one of the categories of acts prohibited by
Article II of the Convention. Neither the intent, as a matter of policy, to render an area “ethnically

homogeneous”, nor the operations that may be carried out to implement such policy, can as such be
designated as genocide. However, this does not mean that acts described as “ethnic cleansing” may
never constitute genocide, if they are such as to be characterized as, for example, “deliberately
inflicting on the group conditions of life calculated to bring about its physical destruction in whole
or in part”, contrary to Article II, paragraph (c), of the Convention, provided such action is carried
out with the necessary specifi c intent (dolus specialis), that is to say with a view to the destruction

of the group, as distinct from its removal from the region.

⎯ Definition of the protected group

The Court needs to identify the group against which genocide may be considered to have

been committed. It notes that the Parties disagree on aspects of the definition of the “group”, the
Applicant refers to “the non-Serb national, ethnical or religious group within, but not limited to, the
territory of Bosnia and Herzegovina, including in particular the Muslim population”. It thus
follows what is termed the negative approach to the definition of the protected group under the
Convention.

The Court recalls that the essence of the intent is to destroy the protected group, in whole or
in part, as such. It is a group which mu st have particular positive characteristics ⎯ national,
ethnical, racial or religious ⎯ and not the lack of them. This interpretation is confirmed by the
drafting history of the Convention.

Accordingly, the Court conclu des that it should deal with the matter on the basis that the
targeted group must in law be defined positively, and thus not negatively as the “non-Serb”
population. The Applicant has made only very li mited reference to the non-Serb populations of
Bosnia and Herzegovina other than the Bosnian Muslims, e.g. the Croats. The Court will therefore
examine the facts of the case on the basis that genocide may be found to have been committed if an

intent to destroy the Bosnian Muslims, as a group, in whole or in part, can be established.

The Court further specifies that for the purposes of ArticleII, first, the intent must be to
destroy at least a substantial part of the particular group. That is demanded by the very nature of
the crime of genocide: since the object and purpose of the Convention as a whole is to prevent the
intentional destruction of groups, the part targeted must be significant enough to have an impact on

the group as a whole. Second, the Court observes that it is widely accepte d that genocide may be
found to have been committed where the intent is to destroy the group within a geographically
limited area.

Questions of proof (paras. 202-230)

The Court first considers the burden or onus of proof, the standard of proof, and the methods
of proof.

⎯ Burden of proof

The Court states that it is well established in general that the applicant must establish its case
and that a party asserting a fact must establish it.

With regard to the refusal of the Respondent to produce the full text of certain documents,
the Court observes that the Applicant has ha d extensive documentation and other evidence
available to it, especially from the readily accessible records of the International Criminal Tribunalfor the former Yugoslavia (ICTY), and that it has made very ample use of it. The Court finally
observes that although it has not agreed to either of the Applicant’s requests to be provided with
unedited copies of certain documents, it has not failed to note the Applicant’s suggestion that the
Court may be free to draw its own conclusions.

⎯ Standard of proof

The Parties also differ on the standard of proof.

The Court has long recognized that claims against a State involving charges of exceptional
gravity must be proved by evidence that is fully conclusive. It requires that it be fully convinced

that allegations made in the proceedings, that the crime of genocide or the other acts enumerated in
ArticleIII have been committed, ha ve been clearly established. The same standard applies to the
proof of attribution for such acts.

In respect of the Applicant’s claim that th e Respondent has breached its undertakings to
prevent genocide and to punish and extradite persons charged with genocide, the Court requires

proof at a high level of certainty appropriate to the seriousness of the allegation.

⎯ Methods of proof

The Court recalls that the Parties submitted a va st array of material, from different sources.

It included reports, resolutions and findings by various United Nations organs; documents from
other intergovernmental organizations; documents, evidence and decisions from the ICTY;
publications from governments; documents from no n-governmental organizations; media reports,
articles and books. They also called witnesses, experts and witness-experts.

The Court must itself make its own determinatio n of the facts which are relevant to the law

which the Applicant claims the Respondent has breached. It however acknowledges that the
present case does have an unusual feature since many of the allegations before it have already been
the subject of the processes and decisions of the ICTY. The Court has thus to consider their
significance.

It recalls that in the case concerning Armed Activities on the Territory of the Congo

(Democratic Republic of the Congo v. Uganda), it notably said that “evidence obtained by
examination of persons directly involved, and w ho were subsequently cross-examined by judges
skilled in examination and experien ced in assessing large amounts of factual information, some of
it of a technical nature, merits special attention”.

The Court states that the fact-finding process of the ICTY falls within this formulation, as
“evidence obtained by persons directly involved”, tested by cross-examination, the credibility of
which has not been challenged subsequently.

After having set out the arguments of the Par ties on the weight to be given to the ICTY
material and after having reviewed the various ICTY processes, the Court concludes that it should

in principle accept as highly pers uasive relevant findings of fact made by the Tribunal at trial,
unless of course they have been upset on appeal. For the same reasons, any evaluation by the
Tribunal based on the facts as so found for instan ce about the existence of the required intent, is
also entitled to due weight.

The Court finally comments on some of the other evidence submitted to it. Evoking inter

alia the report entitled “The Fall of Srebrenica”, which the United Nations Secretary-General
submitted in November 1999 to th e General Assembly, it observes that the care taken in preparing
said report, its comprehensive sources and the independence of those responsible for its preparation
all lend considerable authority to it. It assures having gained substantial assistance from this report.The facts (paras. 231-376)

The Court reviews the background of the facts invoked by the Applicant, as well as the
entities involved in the events complained of. It notes that on 9 January 1992, the Republic of the
Serb People of Bosnia and Herzeg ovina, later to be called the Republika Srpska (RS), declared its
independence. According to the Court, this en tity never attained international recognition as a

sovereign State, but it had de facto control of substantial territory, and the loyalty of large numbers
of Bosnian Serbs.

The Court observes that the Applicant has asserted the existence of close ties between the
Government of the Respondent and the authorities of the Republika Srpska, of a political and

financial nature, and also as regards administration and control of the army of the Republika
Srpska(VRS). The Court finds it established that the Respondent was making its considerable
military and financial support available to the Republika Srpska, and had it withdrawn that support,
this would have greatly constrained the options that were available to the Republika Srpska
authorities.

The Court then embarks on the examination of th e facts alleged by the Applicant, in order to
satisfy itself, first, that the alleged atrocities occurred; secondly, whether such atrocities, if
established, fall within the scope of ArticleII of the Genocide Convention, that is to say whether
the facts establish the exis tence of an intent, on the part of the perpetrators of those atrocities, to
destroy, in whole or in part, a defined group, namely that of the Bosnian Muslims.

⎯ Article II (a) : Killing members of the protected group

The Court examines the evidence of killings of members of the protected group
(Article II (a)of the Genocide Convention) in the principal areas of Bosnia: Sarajevo, Drina River

Valley, Prijedor, Banja Luka and Brčko ⎯ and in the various detention camps.

It finds that it is established by overwhelming evidence that massive killings in specific areas
and detention camps throughout the territory of Bosnia and Herzegovina were perpetrated during
the conflict. Furthermore, the evidence presente d shows that the victims were in large majority
members of the protected group, which suggests th at they may have been systematically targeted

by the killings.

The Court is however not convinced, on the basi s of the evidence before it, that it has been
conclusively established that the massive killings of members of the protected group were
committed with the specific intent (dolus specialis) on the part of the perpetrators to destroy, in
whole or in part, the group as such. The killin gs outlined above may amount to war crimes and

crimes against humanity, but the Court has no jurisdiction to determine whether this is so.

⎯ The massacre at Srebrenica

Having recapitulated the events surrounding the takeover of Srebreni ca, the Court observes

that the Trial Chambers in the Krsti ć and Blagojevi ć cases both found that Bosnian Serb forces
killed over 7,000 Bosnian Muslim men following th e takeover of the “safe area” inJuly1995.
Accordingly they found that the actusreus of killings in ArticleII(a) of the Convention was
satisfied. Both also found that actions of Bo snian Serb forces also satisfied the actusreus of
causing serious bodily or mental harm, as defined in ArticleII(b) of the Convention ⎯ both to

those who where about to be executed, and to the others who were separated from them in respect
of their forced displacement and the loss suffered by survivors among them. The Court is thus
fully persuaded that both killings wi thin the terms of ArticleII(a) of the Convention, and acts
causing serious bodily or mental harm within the terms of Article II (b) thereof occurred during the
Srebrenica massacre. The Court goes on to examine whether ther e was specific intent (dolus specialis) on the part
of the perpetrators. Its conclusion, fortified by the Judgments of the ICTY Trial Chambers in the
Krstić and Blagojević cases, is that the necessary intent was not established until after the change in
the military objective (from “reducing the enclave to the urban area” to taking over Srebrenica
town and the enclave as a whole) and after the takeover of Srebrenica, on about 12 or 13 July. This

may be significant for the application of the obligations of the Respondent under the Convention.
The Court has no reason to depart from the Tri bunal’s determination that the necessary specific
intent (dolus specialis)was established and that it was not established until that time.

The Court turns to the findings in the Krsti ć case, in which the Appeals Chamber endorsed
the findings of the Trial Chamber in the following terms:

“In this case, having identified the protected group as the national group of
Bosnian Muslims, the Trial Chamber concluded that the part the VRS Main Staff and
Radislav Krstić targeted was the Bosnian Muslims of Srebrenica, or the Bosnian
Muslims of Eastern Bosnia. This conclusion comports with the guidelines outlined
above. The size of the Bosnian Muslim population in Srebrenica prior to its capture

by the VRS forces in 1995 amounted to ap proximately forty thousand people. This
represented not only the Muslim inhabitant s of the Srebrenica municipality but also
many Muslim refugees from the surrounding region. Although this population
constituted only a small percentage of th e overall Muslim population of Bosnia and
Herzegovina at the time, the importance of the Muslim community of Srebrenica is

not captured solely by its size.”

The Court sees no reason to disagree with the concordant findings of the Trial Chamber and the
Appeals Chamber.

The Court concludes that the acts committed at Srebrenica falling within ArticleII(a)

and (b) of the Convention were committed with the specific intent to destroy in part the group of
the Muslims of Bosnia and Herzegovina as such; and accordingly that these were acts of genocide,
committed by members of the VRS in and around Srebrenica from about 13 July 1995.

⎯ Article II (b): Causing serious bodily or mental harm to members of the protected group

Having examined the specific allegations of the Applicant under this heading, and having
taken note of the evidence presented to the ICTY , the Court considers that it has been established
by fully conclusive evidence that members of th e protected group were systematically victims of
massive mistreatment, beatings, rape and torture causing serious bodily and mental harm, during
the conflict and, in particular, in the detention camps. The Court finds, however, that it has not

been conclusively established that those atrocities, although they too may amount to war crimes
and crimes against humanity, were committed with the specific intent (dolus specialis) to destroy
the protected group, in whole or in part.

⎯ Article II (c): Deliberately inflicting on the group conditi ons of life calculated to bring about

its physical destruction in whole or in part

The Court goes on to examine in turn the ev idence concerning the three sets of claims made
by the Applicant: encirclement, shelling and starvation; deportation and expulsion; destruction of
historical, religious and cultural property. It considers the evidence presented regarding the
conditions of life in the detention camps already referred to above.

On the basis of a careful examination of the evidence submitted by the Parties with respect to
encirclement, shelling and starvation on the one hand, and deportation and expulsion on the other
hand, the Court cannot establish that the alleged ac ts were accompanied by the specific intent to
destroy the protected group in whole or in part. With respect to the destruction of historical , religious and cultural property, the Court finds
that there is conclusive evidence of the deliberate destruction of the historical, cultural and
religious heritage of the protected group. Howeve r, such destruction does not fall as such within
the categories of acts of genocide set out in Article II of the Convention.

On the basis of the elements presented to it concerning the camps, the Court considers that

there is convincing and persuasive evidence that terrible conditions were inflicted upon detainees
of the camps. However, the evidence presented has not enabled the Court to find that those acts
were accompanied by specific intent (dolus specialis) to destroy the protected group, in whole or in
part. In this regard, the Court observes that, in none of the ICTY cases concerning camps cited
above, has the Tribunal found that the accused acted with such specific intent (dolus specialis) .

⎯ Article II (d) : Imposing measures to prevent births within the protected group

⎯ Article II (e) : Forcibly transferring children of the protected group to another group

Having carefully examined the arguments of the Parties under these two headings, the Court
finds that the evidence placed before it by the Applicant does not enable it to conclude that Bosnian
Serb forces committed such acts.

⎯ Alleged genocide outside Bosnia and Herzegovina

The Court finds that the Applicant has not established to the satisfaction of the Court any
facts in support of the allegation according to which acts of genocide, for which the Respondent
was allegedly responsible, also took place on the territory of the FRY.

⎯ The question of pattern of acts said to evidence an intent to commit genocide

The Applicant relies on the alleged existence of an overall plan to commit genocide
throughout the territory, against persons identified everywhere and in each case on the basis of their
belonging to a specified group.

The Court notes that this argument of the Applicant moves from the intent of the individual
perpetrators of the alleged acts of genocide comp lained of, to the intent of higher authority,
whether within the VRS or the Republika Srpska, or at the level of the Government of the
Respondent itself. Having examined, in context, the Decision on Strategic Goals issued in

May 1992 by MomčiloKrajišnik as the President of the Na tional Assembly of Republika Srpska,
which in the Applicant’s view approaches an official statement of an overall plan, the Court does
not see the 1992 Strategic Goals as establishing the specific intent.

Turning to the Applicant’s contention that th e very pattern of the atrocities committed over
many communities, over a lengthy period, fo cussed on Bosnian Muslims and also Croats,

demonstrates the necessary intent, the Court cannot agree with such a broad proposition. The dolus
specialis, the specific intent to destroy the group in wh ole or in part, has to be convincingly shown
by reference to particular circumstances, unless a general plan to that end can be convincingly
demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its existence, it
would have to be such that it could only point to the existence of such intent. The Court finds that the Applicant has not established the existence of that intent on the part
of the Respondent, either on the basis of a concerted plan, or on the basis that the events reviewed
above reveal a consistent pattern of conduct which c ould only point to the existence of such intent.
Having however concluded, in the specific case of the massacres at Srebrenica inJuly1995, that
acts of genocide were committed, the Court turns to the question whether those acts are attributable

to the Respondent.

Responsibility for events at Srebrenica (paras. 377-415)

⎯ The alleged admission

The Court first notes that the Applicant conte nds that the Respondent has in fact recognized
that genocide was committed at Srebrenica, and has accepted legal responsibility for it. For
purposes of determining whether the Respondent has recognized its responsibility, the Court may
take into account any statements made by either party that appear to bear upon the matters in issue,
and have been brought to its attention, and may accord to them such legal effect as may be
appropriate. However, in the present case, it appe ars to the Court that the declaration made by the

Council of Ministers of the Respondent on 15June2005 following the showing on a Belgrade
television channel on 2June2005 of a video-reco rding of the murder by a paramilitary unit of
six Bosnian Muslim prisoners near Srebrenica was of a political nature; it was clearly not intended
as an admission.

⎯ The test of responsibility

In order to ascertain whether the internati onal responsibility of the Respondent can have
been incurred, on whatever basis, in connection with the massacres commit ted in the Srebrenica
area during the period in question, the Court must consider three questions in turn. First, it needs to

be determined whether the acts of genocide could be attributed to the Respondent on the basis that
those acts where committed by its organs or pers ons whose acts are attributable to it under
customary rules of State Responsibility. Second, the Court needs to ascertain whether acts of the
kind referred to in Artic le III, paragraphs (b)to (e), of the Convention, other than genocide itself,
were committed by persons or organs whose conduct is attributable to the Respondent. Finally, it
will be for the Court to rule on the issue as to whether the Respondent complied with its twofold

obligation deriving from Article I of the Convention to prevent and punish genocide.

⎯ The question of attribution of the Srebrenica ge nocide to the Respondent on the basis of the
conduct of its organs

The first of these two questions relates to th e well-established rule, one of the cornerstones
of the law of State responsibility, that the conduct of any State organ is to be considered an act of
the State under international law, and therefore gives rise to the responsibility of the State if it
constitutes a breach of an international obligation of the State.

When applied to the present case, this rule fi rst calls for a determination whether the acts of

genocide committed in Srebrenica we re perpetrated by “persons or entities” having the status of
organs of the Federal Republic of Yugoslavia (a s the Respondent was known at the time) under its
internal law, as then in force. According to the Court, it must be said that there is nothing which
could justify an affirmative response to this question. It has not been shown that the FRY army
took part in the massacres, nor that the political leaders of the FRY had a hand in preparing,

planning or in any way carrying out the massacres. It is true that there is much evidence of direct
or indirect participation by the official army of the FRY, along with the Bosnian Serb armed forces,
in military operations in Bosnia and Herzegovina in the years prior to the events at Srebrenica.That participation was repeatedly condemned by the political organs of the United Nations, which
demanded that the FRY put an end to it. It has however not been shown that there was any such
participation in relation to the massacres comm itted at Srebrenica. Further, neither the
Republika Srpska, nor the VRS were de jure organs of the FRY, since none of them had the status
of organ of that State under its internal law.

With regard to the particul ar situation of GeneralMladi ć, the Court notes first that no
evidence has been presented that either GeneralMladi ć or any of the other officers whose affairs
were handled by the 30thPersonnel Centre in Belg rade were, according to the internal law of the
Respondent, officers of the army of the Respondent ⎯ a de jure organ of the Respondent. Nor has
it been conclusively established that GeneralMladi ć was one of those officers; and even on the

basis that he might have been, the Court does not consider that he would, for that reason alone,
have to be treated as an organ of the FRY for the purposes of the application of the rules of State
responsibility. There is no doubt that the FR Y was providing substantial support, interalia ,
financial support, to the Republika Srpska, and that one of the forms that support took was payment
of salaries and other benefits to some officers of the VRS, but the Court c onsiders that this did not

automatically make them organs of the FRY. The particular situation of General Mladić, or of any
other VRS officer present at Srebrenica who ma y have been being “administered” from Belgrade,
is not such as to lead the Court to modify the conclusion reached in the previous paragraph.

The issue also arises as to whether the Res pondent might bear responsibility for the acts of
the paramilitary militia known as the “Scorpions” in the Srebrenica area. Judging on the basis of

materials submitted to it, the Court is unable to find that the “Scorpions” ⎯ referred to as “a unit of
Ministry of Interiors of Serbia” in those documents ⎯ were, in mid-1995, dejure organs of the
Respondent. Furthermore, the Court notes that in any event the act of an organ placed by a State at
the disposal of another public authority shall not be considered an act of that State if the organ was

acting on behalf of the public authority at whose disposal it had been placed.

The Court observes that, according to its ju risprudence (notably its 1986Judgment in the
case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America) ), 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 en tities act in “complete dependence” on the State, of
which they are ultimately merely the instrument. In the present case, the Court however cannot
find that the persons or entities that committed the acts of genocide at Srebrenica had such ties with
the FRY that they can be deemed to have been completely dependent on it.

At the relevant time, July 1995, according to the Court, neither the Republika Srpska nor the
VRS could be regarded as mere instruments through which the FRY was acting, and as lacking any
real autonomy. The Court further states that it has not been presented with materials indicating that
the “Scorpions” were in fact acting in complete dependence on the Respondent.

The Court therefore finds that the acts of genocide at Srebrenica cannot be attributed to the

Respondent as having been committed by its orga ns or by persons or entities wholly dependent
upon it, and thus do not on this basis entail the Respondent’s international responsibility.

⎯ The question of attribution of the Srebrenica genocide to the Respon dent on the basis of
direction or control

The Court then determines whether the massacres at Srebrenica were committed by persons
who, though not having the status of organs of the Respondent, nevertheless acted on its
instructions or under its direction or control.

The Court indicates that the applicable rule, which is one of customary law of international

responsibility, is that the conduct of a person or group of persons shall be considered an act of aState under international law if th e person or group of persons is in fact acting on the instructions
of, or under the direction or control of, that State in carrying out the conduct. This provision must
be understood in the light of the Court’s jurispru dence on the subject, particularly that of the
1986Judgment in the case c oncerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America).

Under the test set out above, it must be shown that this “effective control” was exercised, or
that the State’s instructions were given, in respect of each operation in which the alleged violations
occurred, not generally in respect of the overall actions taken by the persons or groups of persons
having committed the violations.

The Court finds that in the light of the informa tion available to it, it has not been established
that the massacres at Srebrenica were committed by persons or entities ranking as organs of the
Respondent. It finds also that it has not been established that those massacres were committed on
the instructions, or under the direction of organs of the Respondent State, nor that the Respondent
exercised effective control over the operations in the course of which those massacres, which
constituted the crime of genocide, were perpetrated.

In the view of the Court, the Applicant has not proved that instructions were issued by the
federal authorities in Belgrade, or by any other or gan of the FRY, to commit the massacres, still
less that any such instructions were given with the specific intent (dolus specialis) characterizing
the crime of genocide. All indications are to the co ntrary: that the decision to kill the adult male

population of the Muslim community in Srebrenica was taken by some members of the VRS Main
Staff, but without instructions from or effective control by the FRY.

The Court concludes from the foregoing that the acts of those who committed genocide at
Srebrenica cannot be attributed to the Respondent under the rules of international law of State
responsibility: thus, the international responsibility of the Respondent is not engaged on this basis.

Responsibility, in respect of Srebrenica, for acts enumer ated in Article III, paragraphs (b) to (e), of
the Genocide Convention (paras. 416-424)

The Court comes to the second of the questions set out above, namely, that relating to the
Respondent’s possible responsibility on the ground of one of the acts related to genocide

enumerated in ArticleIII of the Convention. It notes that it is clear from an examination of the
facts that only alleged acts of complicity in genocide, within the meaning of ArticleIII,
paragraph (e) , are relevant in the present case.

The question is whether such acts can be attributed to organs of the Respondent or to persons
acting under its instructions or under its effective control.

The Court states that, in order to ascertain whether the Respondent is responsible for
“complicity in genocide”, it must examine whethe r those organs or persons furnished “aid or
assistance” in the commission of the genocide in Srebrenica, in a sense not significantly different
from that of those concepts in the general law of international responsibility. It also needs to

consider whether the organ or person furnishing aid or assistance to a perpetrator of the crime of
genocide acted knowingly, that is to say, in particular, was aware or should have been aware of the
specific intent (dolus specialis)of the principal perpetrator.

The Court is not convinced by the evidence furnished by the Applicant that the above
conditions were met. In particular, it has not been established beyond any doubt in the argument

between the Parties whether the authorities of the FRY supplied ⎯ and continued to supply ⎯ the
VRS leaders who decided upon and carried out those acts of genocide with their aid and assistance,
at a time when those authorities were clearly awar e that genocide was about to take place or was
under way. The Court notes that a point which is clearly decisive in this connection is that it was not
conclusively shown that the decision to eliminate physically the adult male population of the
Muslim community from Srebrenica was brought to the attention of the Belgrade authorities when
it was taken.

The Court concludes from the above that the international responsibility of the Respondent is

not engaged for acts of complicity in genoci de mentioned in ArticleIII, paragraph(e) , of the
Convention. In the light of this finding, and of the findings above relating to the other paragraphs
of Article III, the international responsibility of the Respondent is not engaged under Article III as
a whole.

Responsibility for breach of the obligations to prevent and punish genocide (paras. 425-450)

The Court points out that in the Genocide Convention, the duty to prevent genocide and the
duty to punish its perpetrators are two distinct yet connected obligations. Each of them must
accordingly be considered in turn.

⎯ The obligation to prevent genocide (paras. 428-438)

The Court makes a few preliminary remarks. Fi rst, the Genocide Convention is not the only
international instrument providing for an obligation on the States parties to it to take certain steps to
prevent the acts it seeks to prohibit. Secondly, it is clear that the obligation in question is one of
conduct and not one of result, in the sense that a State cannot be under an obligation to succeed,

whatever the circumstances, in preventing the commission of genocide: the obligation of States
parties is rather to employ all means reasonably av ailable to them, so as to prevent genocide so far
as possible. A State does not incur responsibility simply because the desired result is not achieved;
responsibility is however incurred if the State ma nifestly failed to take all measures to prevent
genocide which were within its power, and which might have contributed to preventing the

genocide. Thirdly, a State can be held responsible for breaching the obligation to prevent genocide
only if genocide was actually co mmitted. Fourth and finally, the Court believes it especially
important to lay stress on the differences between the requirements to be met before a State can be
held to have violated the obligation to prevent genocide ⎯ within the meaning of ArticleI of the

Convention ⎯ and those to be satisfied in order for a State to be held responsible for “complicity in
genocide” ⎯ within the meaning of Article III, paragraph (e) ⎯ as previously discussed.

The Court then considers the facts of the case, confining itself to the FRY’s conduct vis-à-vis
the Srebrenica massacres. It first notes that, during the period under consideration, the FRY was in
a position of influence, over the Bosnian Serbs who devised and implemented the genocide in

Srebrenica, unlike that of any of the other States parties to the Genocide Convention owing to the
strength of the political, military and financial lin ks between the FRY on the one hand and the
Republika Srpska and the VRS on the other, which, though somewhat weaker than in the preceding
period, nonetheless remained very close.

Secondly, the Court cannot but note that, on the relevant date, the FRY was bound by very
specific obligations by virtue of the two Orde rs of the Court indicating provisional measures
delivered in 1993. In particular, in its Or der of 8April1993, the Court stated, inter alia , that the
FRY was required to ensure “that any military, para military or irregular armed units which may be
directed or supported by it, as well as any orga nizations and persons which may be subject to its
control, direction or influence, do not commit any acts of genocide, of conspiracy to commit

genocide, of direct and public in citement to commit genocide, or of complicity in genocide...”.
The Court’s use, in the above passage, of the term “influence” is particularly revealing of the fact
that the Order concerned not only the persons or entities whose conduct wa s attributable to the
FRY, but also all those with whom the Responde nt maintained close links and on which it could
exert a certain influence. Thirdly, the Court recalls that although it has not found that the information available to the
Belgrade authorities indicated, as a matter of certainty, that genocide was imminent (which is why
complicity in genocide was not upheld above), they could hardly have been unaware of the serious
risk of it once the VRS forces had decided to occupy the Srebrenica enclave.

In view of their undeniable influence and of the information, voicing serious concern, in

their possession, the Yugoslav federal authorities should, in the view of the Court, have made the
best efforts within their power to try and prevent th e tragic events then taking shape, whose scale,
though it could not have been foreseen with certainty, might at least have been surmised. The FRY
leadership, and President Milošević above all, were fully aware of the climate of deep-seated hatred
which reigned between the Bosnian Serbs and th e Muslims in the Srebrenica region. Yet the

Respondent has not shown that it took any initiative to prevent what happened, or any action on its
part to avert the atrocities which were committed. It must therefore be concluded that the organs of
the Respondent did nothing to prevent the Srebrenica massacres, claiming that they were powerless
to do so, which hardly tallies with their known influence over the VRS. As indicated above, for a
State to be held responsible for breaching its obligation of prevention, it does not need to be proven

that the State concerned definitely had the power to prevent the genocide; it is sufficient that it had
the means to do so and that it manifestly refrained from using them.

Such is the case here. In view of the foregoing, the Court concludes that the Respondent
violated its obligation to prevent the Srebrenica genocide in such a manner as to engage its
international responsibility.

⎯ The obligation to punish genocide (paras. 439-450)

The Court first recalls that the genocide in Srebrenica, the commission of which it has
established above, was not carried out in the Respondent’s territory. It concludes from this that the
Respondent cannot be charged with not having trie d before its own courts those accused of having

participated in the Srebrenica genocide, either as principal perpetrators or as accomplices, or of
having committed one of the other acts mentioned in ArticleIII of the Convention in connection
with the Srebrenica genocide.

The Court needs then to consider whether the Respondent fulfilled its obligation to

co-operate with the “international penal tribunal” referred to in Article VI of the Convention. For it
is certain that once such a court has been estab lished, ArticleVI obliges the Contracting Parties
“which shall have accepted its jurisdiction” to co-operate with it, which implies that they will arrest
persons accused of genocide who are in their territory ⎯ even if the crime of which they are
accused was committed outside it ⎯ and, failing prosecution of them in the parties’ own courts,

that they will hand them over for trial by the competent international tribunal.

The Court establishes that the ICTY constitutes an “international penal tribunal” within the
meaning of ArticleVI and that the Respondent must be regarded has having “accepted the
jurisdiction” of the tribunal within the meaning of the provision from 14December1995 at the

latest, the date of the signing and entry into fo rce of the Dayton Agreement between Bosnia and
Herzegovina, Croatia and the FRY. Annex 1A of that treaty, made binding on the parties by virtue
of its Article II, provides namely that they must fully co-operate, notably with the ICTY.

In this connection, the Court first observes that, during the oral proceedings, the Respondent
asserted that the duty to co-o perate had been complied with following the régime change in

Belgrade in the year2000, thus implicitly adm itting that such had not been the case during the
preceding period. The conduct of the organs of the FRY before the régime change however
engages the Respondent’s interna tional responsibility just as much as it does that of its State
authorities from that date. Further, the Court cannot but attach a certain weight to the plentiful, and
mutually corroborative, information suggesting that GeneralMladi ć, indicted by the ICTY for

genocide, as one of those principally responsible for the Srebrenica massacres, was on the territoryof the Respondent at least on several occasions and for substantial periods during the last few years
and is still there now, without the Serb authorities doing what they could and can reasonably do to
ascertain exactly where he is living and arrest him.

It therefore appears to the Court sufficiently established that the Respondent failed in its duty
to co-operate fully with the ICTY. This failur e constitutes a violation by the Respondent of its

duties as a party to the Dayton Agreement, and as a Member of the United Nations, and
accordingly a violation of its obligations under Artic leVI of the Genocide Convention. On this
point, the Applicant’s submissions relating to the violation by the Respondent of Articles I and VI
of the Convention must therefore be upheld.

Responsibility for breach of the Court’s Orders indicating provisional measures (paras. 451-458)

Having recalled that its “orders on provisi onal measures under Article41 [of the Statute]
have binding effect”, the Court finds that it is clear that in respect of the massacres at Srebrenica
inJuly1995 the Respondent failed to fulfil its obligation indicated in paragraph 52 A (1) of the
Order of 8April1993 and reaffirmed in the Order of 13September1993 to “take all measures

within its power to prevent commission of the cr ime of genocide”. Nor did it comply with the
measure indicated in paragraph52A(2) of the Order of 8April1993, reaffirmed in the Order of
13September1993, insofar as that measure required it to “ensure that any... organizations and
persons which may be subject to its . . . influence . . . do not commit any acts of genocide”.

The question of reparation (paras. 459-470)

In the circumstances of the present case, as the Applicant recognizes, it is inappropriate to
ask the Court to find that the Respondent is under an obligation of restitutio in integrum . Insofar as
restitution is not possible, as the Co urt stated in the case of the Gab číkovo-Nagymaros Project
(Hungary/Slovakia), “[i]t is a well-established rule of inte rnational law that an injured State is

entitled to obtain compensation from the State which has committed an internationally wrongful act
for the damage caused by it”.

The Court, in order to rule on the claim for reparation must ascertain whether, and to what
extent, the injury asserted by the Applicant is the consequence of wrongful conduct by the
Respondent with the consequence that the Respondent should be required to make reparation for it,

in accordance with the principle of customary intern ational law stated above. In this context, the
question whether the genocide at Srebrenica would have taken place even if the Respondent had
attempted to prevent it by employing all means in its possession, becomes directly relevant.
However, the Court clearly cannot conclude from the case as a whole and with a sufficient degree
of certainty that the genocide at Srebrenica would in fact have been averted if the Respondent had

acted in compliance with its legal obligations. Si nce the Court cannot regard as proven a causal
nexus between the Respondent’s violation of its obligation of prevention and the genocide at
Srebrenica, financial compensation is not the appr opriate form of reparatio n for the breach of the
obligation to prevent genocide.

It is however clear that the Applicant is entitle d to reparation in the form of satisfaction, and

this may take the most appropriate form, as the A pplicant itself suggested, of a declaration in the
present Judgment that the Respondent has failed to comply with the obligation imposed by the
Convention to prevent the crime of genocide.

Turning to the question of the appropriate reparation for the breach by the Respondent of its
obligation under the Convention to punish acts of genocide, the Court notes that it is satisfied that

the Respondent has outstanding obligations as rega rds the transfer to the ICTY of persons accused
of genocide, in order to comply with its oblig ations under Articles I and VI of the Genocide
Convention, in particular in respect of General Ratko Mladić. The Court does not find it appropriate to give effect to the Applicant’s request for an order
for symbolic compensation in respect of the non-compliance of the Respondent with the Court’s
Order of 8 April 1993 on provisional measures.

Operative paragraph (para. 471)

“For these reasons,

CThe OURT ,

(1) by ten votes to five,

Rejects the objections contained in the final submissions made by the Respondent to the
effect that the Court has no jurisdiction; and affirms that it has jurisdiction, on the basis of

ArticleIX of the Convention on the Prevention and Punishment of the Crime of Genocide, to
adjudicate upon the dispute brought before it on 20March1993 by the Republic of Bosnia and
Herzegovina;

IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Owada, Simma,

Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge ad hoc Mahiou;

AGAINST : Judges Ranjeva, Shi, Koroma, Skotnikov; Judgead hoc Kreća;

(2) by thirteen votes to two,

Finds that Serbia has not committed genocide, through its organs or persons whose acts
engage its responsibility under customary international law, in violation of its obligations under the
Convention on the Prevention and Punishment of the Crime of Genocide;

IN FAVOUR : President Higgins; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka,
Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Kreća;

AGAINST : Vice-President Al-Khasawneh; Judge ad hoc Mahiou;

(3) by thirteen votes to two,

Finds that Serbia has not conspired to commit genocide, nor incited the commission of
genocide, in violation of its obligations under the Convention on the Prevention and Punishment of
the Crime of Genocide;

IN FAVOUR : President Higgins; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka,
Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Kreća;

AGAINST : Vice-President Al-Khasawneh; Judge ad hoc Mahiou;

(4) by eleven votes to four,

Finds that Serbia has not been complicit in genocide, in violation of its obligations under the
Convention on the Prevention and Punishment of the Crime of Genocide;

IN FAVOUR : President Higgins; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka,
Abraham, Sepúlveda-Amor, Skotnikov; Judge ad hoc Kreća;

AGAINST : Vice-President Al-Khasawneh; Judges Keith, Bennouna; Judge ad hoc Mahiou; (5) by twelve votes to three,

Finds that Serbia has violated the obligation to prevent genocide, under the Convention on
the Prevention and Punishment of the Crime of Genoc ide, in respect of the genocide that occurred

in Srebrenica in July 1995;

IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi,
Koroma, Owada, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna;
Judge ad hoc Mahiou;

AGAINST : Judges Tomka, Skotnikov; Judge ad hoc Kreća;

(6) by fourteen votes to one,

Finds that Serbia has violated its obligations under the Convention on the Prevention and
Punishment of the Crime of Genocide by having failed to transfer RatkoMladi ć, indicted for
genocide and complicity in genocide, for trial by the International Criminal Tribunal for the former
Yugoslavia, and thus having failed fully to co-operate with that Tribunal;

IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi,
Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna,
Skotnikov; Judge ad hoc Mahiou;

AGAINST : Judge ad hoc Kreća;

(7) by thirteen votes to two,

Finds that Serbia has violated its obligation to comply with the provisional measures ordered
by the Court on 8Apriland 13September1993 in this case, inasmuch as it failed to take all

measures within its power to prevent genocide in Srebrenica in July 1995;

IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi,
Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna;
Judge ad hoc Mahiou;

AGAINST : Judge Skotnikov; Judge ad hoc Kreća;

(8) by fourteen votes to one,

Decides that Serbia shall immediately take effective steps to ensure full compliance with its

obligation under the Convention on the Prevention and Punishment of the Crime of Genocide to
punish acts of genocide as defined by Article II of the Convention, or any of the other acts
proscribed by Article III of the Convention, and to transfer individuals accused of genocide or any
of those other acts for trial by the International Criminal Tribunal for the former Yugoslavia, and to

co-operate fully with that Tribunal;

IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi,
Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna,
Skotnikov; Judge ad hoc Mahiou;

AGAINST : Judge ad hoc Kreća; (9) by thirteen votes to two,

Finds that, as regards the breaches by Serbia of the obligations referred to in
subparagraphs(5) and(7) above, the Court’s fings in those paragraphs constitute appropriate
satisfaction, and that the case is not one in which an order for payment of compensation, or, in
respect of the violation referred to in subpaph(5), a direction to provide assurances and

guarantees of non-repetition, would be appropriate.

IN FAVOUR : President Higgins; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka,
Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Kreća;

AGAINST: Vice-President Al-Khasawneh; Judge ad hoc Mahiou.”

*

Vice-Presdent L-KHASAWNEH appends a dissenting opinion to the Judgment of the Court;

Judges RANJEVA , HI and K OROMA append a joint dissenting opinion to the Judgment of the
Court; Judge RANJEVA appends a separate opinion to the Judgment of the Court; JudHIand
K OROMA append a joint declaration to the Judgment of the Court; JudWADA and TOMKA
append separate opinions to the Judgment of the Court; JudgesK EITH, BENNOUNA and

SKOTNIKOV append declarations to the Judgment of the Court; JudgeadhMcAHIOU appends a
dissenting opinion to the Judgment of the Court; Judge ad hoc appends a separate opinion
to the Judgment of the Court.

___________ Annex to Summary 2007/2

Dissenting opinion of Vice-President Al-Khasawneh

Vice-President Al-Khasawneh felt that he should explain the nature of his dissent before
explaining the reasons for it. He believed his disagreement with the majority, relating as it did, not
only to their conclusions but also to their reasoning, assumptions and methodology was deep
enough to justify his dissent notwithstanding his agreement with certain other parts of the Judgment

notably: Jurisdiction ⎯ Serbian failure to prevent genocide in Srebrenica ⎯ failure to co-operate
with the ICTY ⎯ failure to comply with earlier provisional measures.

On jurisdiction, the Vice-Pre sident recalled that an unpreceden ted number of jurisdictional
rounds has been partly responsible for the huge delay in dispensing justice in the present case.

Jurisdiction centred on the Federal Republic of Yugoslavia’s (FRY) international status and its
United Nations membership and consequently the question of “access” ⎯ blown out of proportion,
in an attempt to undermine the Court’s clearly established jurisdiction in the 1996 Judgment ⎯
came to play a central role. He analysed the context in which the issue of FRY membership in the

United Nations and its claim to be a continuator of the Socialist Federal Republic of Yugoslavia
(SFRY) arose and came to the conclusions that the FRY was always a United Nations Member and
could not have been otherwise and that the sole effect of relevant Security Council and General
Assembly resolutions was FRY non-participation in the work of the General Assembly. This
conclusion was based on the objectively verifiable criterion that the SFRY was an original Member
of the United Nations and that it was never extinguished and that there is a general presumption

against loss of United Nations membership.

The Vice-President also recalled that only the FRY could, of its own will, give up its
membership as a continuator of SFRY and apply as a new Member, i.e. as a successor. Therefore,
when it did so in 2000 this meant that it was a continuator from 1992-2000 and a successor from

2000 and not that it was a non-Member before 2000 as the 2004 Judgments on the Legality of Use
of Force found. Because no conclusion, for the past, could be derived from the fact of FRY
admission to the United Nations in 2000, and because an independent analysis of the FRY status in
1992-2000 (an analysis independent from the fact of admission) could lead only to one conclusion,
i.e. 1992-2000 membership, he felt the logic of the 2004 Judgments was defective. He also felt it
contradicted earlier jurisprudence, i.e. 1993 Order, 1996 Judgment and particularly the

2003Application for Revision Judgment which correctly found that no retroactive consequences
for FRY membership in the United Nations could be derived from FRY admission in 2000.

The Vice-President also felt that FRY initiativ e to the Court to reconsider ex officio its
jurisdiction to be irregular and felt it regrettableat the Court in 2003 accepted that initiative

because that contradicted its own jurisdiction. T hus, he thought, the initiative led to contradictions
in the Court’s jurisprudence and had no place under the Court’s Statute. He felt that precedents
cited in support of the propositions that the “Court must always be satisfied it has jurisdiction” to
be inapplicable.

With all these contradictions ⎯ for which the Court itself had been mainly responsible ⎯

being quoted back at the Court and the contagion spreading, the Court had to rely unduly on the
principle of res judicatahich was correct but not very satisfy ing. Clearly the Court had retreated
to the last line of defence partly because of its own doing. - 2 -

On the merits, Vice-President Al-Khasawneh felt that through a combination of methods and
assumptions, uncalled for in law and not suitable to the facts of the case, the Court achieved the
extraordinary feat of absolving Serbia of its re sponsibility for genocide in Bosnia and Herzegovina
save for failure to prevent the genocide at Sr ebrenica, where in any case he thought Serbian
responsibility was more actively involved than the mere failure to prevent.

Firstly, since intent is usually elusive and, together with attributability , often carefully
concealed, the Court should have sought access to the papers of the “Serbian Defence Council”
which would probably have made the Court’s task much easier. Refusal of Serbia to divulge
documents should have led at least to more libera l recourse to evidence. By insisting on a very

high evidentiary “standard” and no shifting of “Burden of proof” , the Applicant was put at a huge
disadvantage. Secondly, the Court also applied a strict test of effective control : the Nicaragua test
to a different situation where inter alia shared ethnicity and shared purpose to commit international
crimes, e.g. ethnic cleansing require only an overall control test . Thirdly, the Court also refused to
infer genocide from a “consistent pattern of conduct” disregarding in this respect a rich and

relevant jurisprudence of other courts. Fourthly , the Court failed to appreciate genocide as a
complex crime and not a single murder. Therefore, events which when looked at comprehensively
gave rise to responsibility of Serbia, were instead seen in a disconnected manner , e.g. the
participation of General Mladić in Srebrenica and the role of the “Scorpions”. Fifthly, even when
there was a clear admission of guilt, e.g. the Serb ian Council of Ministers’ statement as a reaction

to the video showing the execution of Muslim prisoners by the “Scorpions” was dismissed as a
political statement though legal weight is att ached to such statements in previous Court
jurisprudence some of which the Court did not even invoke.

The Vice-President concluded that had the Co urt tried to see for itself it most probably
would have found Serbia responsible either as principal or an accomplice in the genocide in

Bosnia. This it could have done without losing the rigor of its reasoning or the high standards of
evidence it required. With regard to Srebrenica he was sure that active Serbian involvement was
proved to satisfactory to standards in facts and in law.

Joint dissenting opinion of Judges Ranjeva, Shi, and Koroma

In a joint dissenting opinion attached to th e Judgment (Merits), JudgesRanjeva, Shi, and
Koroma have expressed their serious misgivings a bout the Judgment’s application of the doctrine
of res judicata [that a matter has been finally adjudicated] to the Court’s 1996 Judgment on
Preliminary Objections to conclude by “necessary implication” that the issue of jurisdiction ratione
personae had been decided. In taking this position th e judges pointed out that theirs is purely a

legal one, not involving any political or moral judgme nt in respect of the merits of the case. In
their view, the Judgment’s reliance on res judicata largely sidesteps twofundamental and related
questions before the Court which have a bearing on the existence of the Court’s jurisdiction at the
time the Application was filed: namely, whet her Serbia and Montenegro was a United Nations
Member and whether it was a party to and/or bound by the Genocide Convention.

According to the judges, the scope and effect of res judicata is properly derived from
constitutional and statutory requirements and from the submissions by the parties to a particular
dispute. Moreover, Article56 of the Statute provides: “The judgment shall state the reasons on
which it is based.” In the present case, the Judgment implies that the issue of access had been

considered and decided, but the issue of a ccess had not been addressed by the Parties ⎯ who the
Judgment acknowledges did not have “any interest” in raising the issue at the time ⎯ or decided by
the Court in its 1996 Judgment. Moreover, the ju dges have pointed out, the 2004 Judgment in
Legality of Use of Force (Serbia and Montenegro v. Belgium) concluded that Serbia and
Montenegro was not a Member of the United Nations in 1999 and that the Genocide Convention - 3 -

did not contain any of the “special provisions contained in treaties in force” that would grant States
parties access to the Court. A ccordingly, in the view of the judges, from both factual and legal
perspectives it would seem clear that, if Serbia and Montenegro was not a United Nations Member
in 1999, then it also must not have been a Member when the Application in this case was filed on
28March1993 and the Respondent was thus in eligible to accede to the Genocide Convention

pursuant to one of the two means specified in its Article XI. Res judicata serves a purpose which,
in the view of the judges, cannot replace the requirements of the United Nations Charter or the
Statute of the Court. They have pointed out th at the Court should always face jurisdictional
challenges when they are presented, as they are now, and that the Court first examined the issue of
access in the Legality of Use of Force in an exception to the general rule that the Court is free to
determine which jurisdictional ground to examine first. In any event, the Court’s application of

res judicata, they have pointed out, is inconsistent even within the present Judgment, as the
jurisdictional findings made in the 1996 Judgment and relied on in the present Judgment were
addressed to Serbia and Montenegro, whereas the res judicata effect of the 1996 Judgment is
applied only to Serbia in the present Judgment.

JudgesRanjeva, Shi, and Koroma have thus concluded that the Judgment has neglected to
deal with one of the substantive submissions squarely put before the Court at this juncture and that
it would only have been by addressing all of those submissions that the Court could have arrived at
a legally valid conclusion.

Separate opinion of Judge Ranjeva

The international responsibility of a State for omission is the sanction which attaches to the
obligation to prevent the crime of geno cide, which is an obligation erga omnes . To achieve the
international solidarity which is its basis, constant vigilance is required in a context of multilateral
co-operation. This obligation, which must be fu lfilled with discernment, is one incumbent on all

States parties. The obligation is assessed in concreto by the Court, a task not without difficulty, for
it essentially entails sovereign States acting preventatively through concerted diplomatic action.

Joint declaration of Judges Shi and Koroma

In a joint declaration attached to the Judg ment (Merits), JudgesShi and Koroma have
expressed their serious doubts about the interpretation given to the Genocide Convention by the
Judgment to the effect that a State itself could be held to have committed the crime of genocide and
to be held responsible therefor. In their view, such an interpretation, derived “by implication” from
ArticleI of the Convention, is inconsistent with the object and purpose of the Convention as a
whole, with its plain meaning, and with the inte ntion of the parties at the time the treaty was

concluded. The judges have maintained that what the Convention envisages is the trial and
punishment of individuals for the crime of genocide and that State responsibility is defined in terms
of various specific obligations related to the unde rtaking to prevent the crime and to punish those
who commit it and that it would be absurd for a State party to the Convention to undertake to
punish itself as a State. In the judges’ view, if the Convention had been intended to contain an

obligation of such importance as to envision the criminal responsibility of States, then this would
have been expressly stipulated in the Convention, but there is no such stipulation. They have
pointed out that proposals made during the negotiation of the Convention that would have
prescribed State responsibility for the commission of genocide itself were rejected. The judges
have also pointed out that the purpose of interpre ting a treaty is to discover its meaning and the

intention of the parties at the time of the treaty’s negotiation and not to achieve a desired objective.

* * - 4 -

However, notwithstanding their disagreement with the interpretation given to the
Convention, including its first Article, in the Judgment, Judges Shi and Koroma voted in favour of
the findings regarding the prevention of genocide in Srebrenica in July 1995 as they believe in the
intrinsic humanitarian value of the conclusion re ached by the Court as well as in the overriding
legal imperative established by Article I of the Convention, namely: the duty of a State to do what

it properly can, within its means and the law, to try to prevent genocide when there is a serious
danger of its occurrence of which the State is or sh ould be aware. Judges Shi and Koroma believe,
however, that the conclusion reached by the Judgment in this regard could have been more legally
secure if anchored on the relevant ChapterVII Se curity Council resolutions that identified several
clear missed moments of opportunity for the FRY leadership to have acte d with respect to the
imminent and serious humanitarian risk posed by any advance of Bosnian Serb paramilitary units

on Srebrenica and its surroundings. Mr.Miloševi ć could and should have exerted whatever
pressure he had at his disposal over the Bosnian Serb leadership to try to prevent the genocide at
Srebrenica.

Separate opinion of Judge Owada

JudgeOwada has appended his separate opinion to the Judgment of the Court. He argues
that while he concurs in general with the conclusions that the Co urt has reached in its dispositif , he
finds that some of the reasonings of the Judgment differ from his own or need some further
elaboration in some important respects.

First, JudgeOwada finds that the Cour t’s pronouncement on the issue of jusstandi of the
Respondent in the present case should not be understood based on an oversimplified application of
the principle of resjudicata . The Applicant has argued in effect that the point raised in the
submission of the Respondent in the form of the “Initiative” of 4May2001 is in the nature of an
objection to jurisdiction, that the 1996 Judgment on Preliminary Objections in this case has settled

all issues of jurisdiction an d thus constitutes resjudicata on the matter of jurisdiction in this case
and that ergo that is the end of the story and the objection raised anew by the Respondent should be
rejected. According to Judge Owada it is not such a simple case of application of the principle of
res judicata simpliciter, and he wishes to expound a little the rationale of the Judgment on this point
according to his own view. While fully endorsing the legal ground on which the 2004Judgments

in the Legality of Use of Force cases is based with regard to the same issue of jusstandi of the
FRY, JudgeOwada emphasizes that the 1996Judgment is to be distinguished from the
2004Judgment in one important respect. His co nclusion is that while it is true that the
1996 Judgment did not specifically address as a matter of fact the issue of jus standi , it nonetheless
must be construed as a matter of law as having made the final determination on this point of
jus standi of the Respondent, which had been left open in the 1993Judgment on the Request for

Provisional Measures in the present case.

Second, JudgeOwada does not associate himself with the position of the Judgment that
under ArticleI of the Genocide Convention the States parties to the Convention have undertaken
the obligation, not just to prevent and punish the crime of genocide committed by individuals, but

the obligation not to commit genocide themselves under pain of direct international responsibility
under the Convention itself in the case of the breach of this obligation. In the view of
JudgeOwada, while the object and purpose of the Genocide Convention is to banish the heinous
crime of genocide, the approach employed by the Convention is specific: in order to achieve this
purpose, the Convention purports to go through the channel of prosecuting the individuals in
national courts and international tribunals by hold ing them to account for the crime of genocide.

According to Judge Owada, the underlying assumption of the Convention is no doubt that nobody,
including States, should be allowed to commit this heinous crime of genocide, but this does not
mean, in the absence of a proof to the contrary, th at the States parties ha ve undertaken the legal
commitment to accept their legal responsibility under the Convention in such a way that in the case
of default in this undertaking they can be held to account for this act within the régime of the - 5 -

Convention . While JudgeOwada reaches the same conclu sion as the Judgment to the extent that
the Court is empowered under ArticleIX of the Convention to deal with the issue of State
responsibility under general international law on the part of a State for an act of individuals whose
act is attributable to the State ⎯ an issue not covered in his view by the substantive provisions of

the Convention ⎯ he tries to show that the Court should arrive at the same conclusion on a much
less controversial ground.

Separate opinion of Judge Tomka

In his separate opinion, JudgeTomka disagrees with the majority’s view that res judicata

bars the Court’s reconsideration of the issue of its jurisdiction, as “embodied” in its Judgment of
11 July 1996. This finding contradicts the Court’ s earlier position, communicated to the Parties in
2003 by a letter from the Court’s Registrar, th at the FRY could present further arguments on
jurisdiction at the merits stage. Neither the Court’s Statute nor its Rules prohibit objections to
jurisdiction during merits proceedings, and the Court must examine such issues proprio motu if

necessary. In any event, the Court’s decisi on of 11July1996 did not address the specific
jurisdictional question now raised ⎯ whether the FRY was party to the Court’s Statute by virtue of
United Nations membership when the Application was filed in March 1993. Therefore, the Court’s
earlier decision is not preclusive, and the Court should have made this jurisdictional enquiry
de novo.

Reviewing jurisdiction de novo , Judge Tomka concludes that the Court has jurisdiction. The
exercise of the Court’s jurisdiction requires both access to the Court under Article 35 of the Court’s
Statute and jurisdiction ratione personae. Judge Tomka explains that the access requirement is now
met because the FRY became a Member of the United Nations on 1November2000, and has
therefore had access to the Court since th at date. Jurisdiction ratione personae is established

because the FRY has been party to the Genocide Convention since April 1992 under the customary
rule of ipso jure succession, as applied to cases of State dissolution. The FRY’s attempt,
inMarch2001, to accede to the Genocide Conve ntion, with a reservation to ArticleIX, was
completely inconsistent with its contemporaneous succession to other conventions as the successor
State to the SFRY, including the Vienna Convention on Succession of States in Respect of

Treaties, which provides that in cases of State dissolution, the treaties of the predecessor State
continue in force in respect of each successor State. Moreover, Bosnia and Herzegovina timely
raised an objection to the FRY’s notification of accession to the Genocide Convention. As such,
the FRY’s attempt to accede to the Genocide Convention with a reservation to Article IX should be
deemed ineffective. The fact that the FRY did not have access to the Court when Bosnia and

Herzegovina filed its Application is a remediable defect which, once remedied, does not preclude
the exercise of jurisdiction. Therefore, JudgeTomka concludes, (1)it was improper for the Court
to decline to consider the FRY’s objections to its jurisdiction at the merits stage on the ground of
res judicata ; and (2)reviewing the FRY’s non-precluded objections de novo , the Court has
jurisdiction.

Judge Tomka next turns to his divergent views on the purpose of the Genocide Convention
and the interpretation of some of its provisions in light of that purpose. The Convention is
primarily an instrument of international criminal law which compels States to prevent genocide and
to punish its individual perpetrators. The drafting history of the Convention does not support the
view that the Convention conceive s genocide as a criminal act of a State. Judge Tomka disagrees

with the majority’s position that the compromi ssory clause in ArticleIX of the Convention
encompasses the jurisdiction to determine whether a State has committed genocide. He believes
that such clause undoubtedly confers jurisdicti on on the Court to determine whether a State has
fulfilled its duties to prevent genocide and to pu nish individuals for such crime, as well as the
responsibility a State incurs for neglecting those duties. Further, in his view, the jurisdiction of the
Court, as a consequence of the addition of the words “including those [disputes] relating to the

responsibility of a State for genocide or for any of the other acts enumerated in article III” into the - 6 -

compromissory clause in Article IX, also includes the power of the Court to determine international
“responsibility of a State for genocide” on the basis of attribution to the State of the criminal act of
genocide perpetrated by a person. The Court, however, is not the proper forum in which to make a
legally binding pronouncement that a crime of genocide was committed. Such a finding is to be
made within the framework of a criminal procedur e which also provides for a right of appeal. The

Court has no criminal jurisdiction and its procedure is not a criminal one.

Judge Tomka further reasons that the Court’s findings on the Respondent’s breach of its
obligation to prevent genocide are not clearly s upported by the evidence and fail to fully address
the Parties’ arguments. Regardin g the territorial scope of States parties’ obligation to prevent
genocide, he takes the view that under Article I of the Genocide Convention the State does have an

obligation to prevent genocide outside its territory to the extent that it exercises jurisdiction outside
its territory, or exercises control over certain pe rsons in their activities abroad. This obligation
exists in addition to the unequivocal duty to prevent the commission of genocide within its
territory. It has not been established that the Fe deral Republic of Yugoslavia exercised jurisdiction
in the areas surrounding Srebrenica where atrociou s mass killings took place. Nor has it been

established before the Court that it exercised co ntrol over the perpetrators who conducted these
atrocious killings outside the territory of the Federal Republic of Yugoslavia. The plan to execute
as many as possible of the military aged Bosnia n Muslim men present in the Srebrenica enclave
was devised and implemented by the Bosnian Serbs following the take-over of Srebrenica
in July 1995. That was the factual finding of the ICTY. It has not been established as a matter of
fact before this Court that the Federal Republic of Yugoslavia authorities knew in advance of this

plan. In such a situation they could not have prevented the terrible massacres in Srebrenica.

Finally, Judge Tomka explains that although the FRY did not become a party to the Court’s
Statute until 1 November 2000 when it was admitted as a Member of the United Nations, the FRY
claimed to be a United Nations Member at the ti me the Court rendered its Orders on provisional

measures in 1993, and therefore should have perc eived itself as bound by those Orders. In any
event, orders on provisional measures produce their effects from the time of their notification to the
parties and remain in force until a court’s final ju dgment on the case, even if the court eventually
finds that it is without jurisdiction. Judge Tomka accordingly agrees that the FRY failed to comply
with some of the provisional measures ordered bythe Court in 1993 while they were in effect.

Declaration of Judge Keith

Judge Keith explained his reasons for finding that Serbia and Montenegro was complicit in
the genocide committed at Srebrenica inJuly1995, in terms of ArticleIII(e) of the Genocide
Convention.

In summary his position on the law was that Serbia and Montenegro, as an alleged
accomplice, had to be proved to have had know ledge of the genocidal intent of the principal
perpetrator (but need not share that intent) and, with that knowledge, to have provided aid and
assistance to the perpetrator. His position on the facts was that those two elements were proved to
the necessary standard.

Declaration of Judge Bennouna

Concurring in the Court’s renewed affirmation of jurisdiction in the present case,
JudgeBennouna nevertheless wished to point out that the admission of Serbia and Montenegro to

the United Nations on 1November2000 was effective only prospectively and did not undo its
previous status, or that of the FRY, within the Organization; it was on that basis that the State was
able to appear before the Court in 1993 and to answer for its acts before the Security Council. - 7 -

In addition, Judge Bennouna, who voted against point4 of the operative part concerning
Serbia’s lack of complicity in ge nocide, considers that all the elem ents were present to justify a
finding by the Court of complicity on the part of the authorities in Belgrade: not only the various
forms of assistance they provided to Republika Srpska and its army but also the knowledge they
had or should have had of the genocidal intention of the principal perpetrator of the massacre at

Srebrenica.

Declaration of Judge Skotnikov

In Judge Skotnokiv’s view, the Court did not have jurisdiction in this case. He points out
that in the 2004 Legality of Use of Force cases, which the Respondent brought against the

NATO States, the Court decided that Serbia and Montenegro had not been a Member of the United
Nations prior to 1 November 2001. The Court de termined that membership of the United Nations
at the time of filing an application was a requirement of the Court’s Statute for it to entertain Serbia
and Montenegro’s claims, and therefore it had no jurisdiction to hear these cases.

However, in this case the Court has avoided making the same finding, even though in
JudgeSkotnikov’s view it was bound to do so (a s this case was also filed before Serbia and
Montenegro became a United Nations Member), by stating that its finding on jurisdiction in the
1996 incidental proceedings was final and without appeal.

JudgeSkotnikov points out that the question of the Respondent’s access to the Court by

virtue of its membership of the United Nations was not addressed in the 1996Judgment on
Preliminary Objections. Accordingly, in his view the question of jurisdiction in this case was not
then definitively determined. By appl ying now the principle of res judicata to its finding on
jurisdiction in the 1966 proceedings, the Court has created “parallel realities”: the one being that
the Court has jurisdiction over Serbia and Montenegro in cases filed before 1November2001 (in

this case) and the other that it does not (in the 2004 Legality of Use of Force cases).

JudgeSkotnikov disagrees with the Court’s interpretation of the Genocide Convention as
containing an implied obligation for States to not themselves commit genocide or the other acts
enumerated in Article III of that Convention. He finds the very idea of an unstated obligation to be
objectionable in general. In addition, in this pa rticular case it is at odds with the terms of the

Convention, an instrument which deals with the criminal culpability of individuals.

However, Judge Skotnikov does not think that such an unstated obligation is necessary at all
for a State to be held responsible for genocide under the Genocide Convention. He states that,
generally, as a matter of principle, wherever inte rnational law criminalizes an act, if that act is
committed by someone capable of engaging the St ate’s responsibility, the State can be held

responsible. This is, in his view, definitely so in the case of the Genocide Convention.

In Judge Skotnikov’s view the Genocide Convention does not empower the Court to go
beyond settling disputes relating to a State’s responsibility for genocide and to conduct an enquiry
and make a determination whether or not the crim e of genocide was committed. The Court cannot

perform this task because it lacks criminal jurisdic tion. In particular, by reason of its lack of
criminal jurisdiction, the Court cannot establish the existence or absence of genocidal intent, which
is a requisite element, a mental part, of the crime of genocide.

Accordingly, Judge Skotnikov disagrees that the Court has the capacity to determine whether
or not the crime of genocide has been committed. In his view this approach is consistent neither

with the Genocide Convention or the Court’s Statute.

Judge Skotnikov believes that in this case it w ould have been sufficient for the Court to rely
upon the findings of the International Criminal Tribunal for the former Yugoslavia (ICTY) to - 8 -

determine whether the crime of genocide had been committed. However, he places one important
caveat on that statement: those findings can only be relied upon to the extent they are in
conformity with the Genocide Convention.

In the view of Judge Skotnikov, the only findings by the ICTY of the commission of
genocide-related crimes in the fo rmer Yugoslavia, in the Krsti ć and Blagojevi ć cases, have not

been made in conformity with the Genocide Convention. In both cases the defendants were
convicted of a crime not recognized in the Genocide Convention, but rather one which is
established in the ICTY’s Statute, namely “aiding and abetting” genocide without having genocidal
intent. In addition, these cases determined that genocide had occurred in Srebrenica by making
findings about the genocidal intent of unidentified persons not before the ICTY. For these reasons,

Judge Skotnikov considers that the Court should have disregarded these findings and concluded
that it had not been sufficiently established that the massacre in Srebrenica can be qualified as
genocide.

Consequently, JudgeSkotnikov also disagrees with the finding of the Court that the
Respondent breached the provisional measures ordered in 1993.

Judge Skotnikov finds that the Court has introduced a concept of the duty to prevent which
may be politically appealing, but hardly measurable at all in legal terms. In his view, the obligation
to prevent applies only in the territory where a State exercises its jurisdiction or which is under its
control. He considers that the duty is one of re sult and not conduct: if genocide has occurred in

that territory, the State is responsible.

Finally, JudgeSkotnikov notes that the Respondent has not provided a clear-cut statement
before this Court that it has done everything in its power to apprehend and transfer Ratko Mladić to
the ICTY. He agrees with the Court that Serbia is under an obligation to co-operate with that
Tribunal.

Dissenting opinion of Judge ad hoc Mahiou

This is the first time the Court has been called upon to rule on an accusation of genocide and
its consequences, genocide being seen as the most horrible of crimes that can be ascribed to an

individual or a State, as in the present proceedings. This case gives the Court the opportunity to
enforce the Convention on the Prevention and Punishment of the Crime of Genocide and to
interpret the greater part of its provisions, some of which have given rise to much debate over their
meaning and scope. The importance, complexity and difficulty of the case lie both in the
procedural facet ⎯ the case having by now been pending before the Court for 14years and the

proceedings on the merits having suffered repeated delay owing to conduct on the part of the
Respondent, conduct which should not go unmarked ⎯ and in the substantive facet, this terrible
tragedy having taken form in some 100,000deaths , suffered for the most part under gruesome
conditions, and physical and psychological after-effects on an ineffably great scale.

I concur in all the Court’s findings on the juri sdictional issue, even though my approach is
sometimes quite different in respect of the route taken to those conclusions. Significantly, the
Court has not only confirmed its jurisdiction and it s 1996 Judgment but has also now made clear
how State responsibility, as recognized in the Convention on the Prevention and Punishment of the
Crime of Genocide, is to be interpreted.

On the other hand, I cannot subscribe to most of the substantive findings reached by the
Court by way of what I believe to be: a timorous , questionable view of its role in the evidentiary
process, a deficient examinatio n of the evidence submitted by the Applicant, a rather odd
interpretation of the facts in the case and of th e rules governing them and, finally, a method of
reasoning which remains unconvincing on a number of very important points. It is serious cause - 9 -

for concern that the Court could not have accomp lished its task of establishing the facts and
inferring from them the consequences as to resp onsibility without help from the International
Criminal Tribunal for the former Yugoslavia. This raises the problem if not of the efficacy of the
Court’s rules of procedure then at least of their application by the Court, which did not truly seek to
secure for itself the means to accomplish its miss ion. Further, in my opinion, the Respondent

incurred responsibility in this case as a direct perpetrator of some of the crimes, even though I
concede that certain instances might be arguab le, open to interpretation or matters for the
adjudicator’s innermost conviction. In my view, the Respondent’s responsibility appears clearly
established in respect of Republika Srpska’s acti ons, either because of the very close ties between
that entity and the Respondent, resulting in the Re spondent’s implication in the ethnic cleansing
plan carried out between 1992 and 1995, or because of the relationship of subordination or control

between the Respondent and those who played a crucial role in that ethnic cleansing, which
extended to the commission of genocide in Bosnia and Herzegovina. Even assuming the findings
in respect of these charges to be problematic, th e evidence before the Court appears sufficiently
strong and convincing to have at the very least justified a finding of complicity in the crime of
genocide; serious weaknesses and contradictions clearly emerge in the reasoning of the Court,

which exonerates the Respondent from such responsibility.

Separate opinion of Judge ad hoc Kreća

Although termed as a separate opinion, the opinion of JudgeKre ća is, form a substantive

point of view, a dissenting opinion for the most part.

It is a separate opinion as regards the prin cipal claim, rejected by the Court, that the
Respondent has violated its obligation under the Genocide Convention by committing genocide,
conspiracy to commit genocide, incitement to commit genocide and complicity in alleged genocide.

In relation to the remaining parts of the dispositif as well as the reasoning part of the
Judgment, the opinion of JudgeKre ća is strongly dissenting. JudgeKre ća finds not only that the
reasoning and findings of the majority are unfounded, but run counter in more than one element to
cogent legal considerations and, even, common sense, thus assuming the aroma of argumentum ad
casum.

The majority view on the res iudicata rule, exempli causa, is similar to an ode to infallibility
of Judges rather than to a proper legal reasoning abou t the characteristics and effects of that rule in
the milieu of the law which the Court is bound to apply. The interpretation of the res iudicata rule
in the circumstances surrounding the case inevita bly led to the nullification of the relevance of
ius standi of the Respondent being an essential condition for the validity of any decision taken by

the Court in casu.

It appears that the determination of the tragic massacre in Srebrenica as genocide is, both in
the formal and the substantive sense, well beyond the real meaning of the provisions of the
Genocide Convention as applicable law in casu . Hardly any of the components of the special intent
as a sine qua non of the crime of genocide as establishe d by the Convention is satisfied in the

relevant judgments of the ICTY as regards the massacre in Srebrenica. JudgeKre ća is of the
opinion that the massacre in Srebrenica, according to its characteristics, rather fits in the frame of
crimes against humanity and war crimes comm itted in the fratricidal war in Bosnia and
Herzegovina.

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