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 2008/5
18 November 2008
Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Croatia v. Serbia)
Preliminary objections
Summary of the Judgment of 18 November 2008
Chronology of the procedure and submissions of the Parties (paras. 1-22)
The Court recalls that, on 2July1999, Croa tia filed an Application against the Federal
Republic of Yugoslavia (hereinafter “the FRY”) in respect of a dispute concerning alleged
violations of the Convention on the Prevention and Punishment of the Crime of Genocide,
approved by the General Assembly of the United Nations on 9December1948 (hereinafter “the
Genocide Convention”). The Application invoke d ArticleIX of the Genocide Convention as the
basis of the jurisdiction of the Court.
By an Order dated 14 September 1999, the C ourt fixed 14 March2000 as the time-limit for
the filing of the Memorial of Croatia and 14 Se ptember 2000 as the time-limit for the filing of the
Counter-Memorial of the FRY. By an Order date d 10March2000, the President of the Court, at
the request of Croatia, extended the time-limit for the filing of the Memorial to 14 September 2000
and accordingly extended the time-limit for the filing of the Counter-Memorial of the FRY to
14September2001. By an Orde r dated 27June2000, the Court extended the time limits to
14 March 2001 and 16 September 2002, respectively, for the filing of the Memorial of Croatia and
the Counter-Memorial of the FRY. Croatia duly filed its Memorial within the time-limit thus
extended.
Since the Court included upon the Bench no judge of the nationality of the Parties, each of
them exercised its right under Article 31, pa ragraph 3, of the Statute to choose a judge ad hoc to sit
in the case: Croatia chose Mr. Budislav Vukas and the FRY chose Mr. Milenko Kreća.
On 11 September 2002, within the time-limit provi ded for in Article 79, paragraph 1, of the
Rules of Court as adopted on 14 April 1978, the FR Y raised preliminary objections relating to the
Court’s jurisdiction to entertain the case and to the admissibility of the Application. Accordingly,
by an Order of 14 November 2002, the Court stated that, by virtue of Article 79, paragraph 3, of the
Rules of Court as adopted on 14April1978, the pr oceedings on the merits were suspended, and
fixed 29April2003 as the time-limit for the presen tation by Croatia of a written statement of its
observations and submissions on the preliminary objec tions raised by the FRY. Croatia filed such
a statement within the time-limit thus fixed. - 2 -
By a letter dated 5 February 2003, the FRY informed the Court that, following the adoption
and promulgation of the Constitutional Charter of Se rbia and Montenegro by the Assembly of the
FRY on 4February 2003, the name of the State had been changed from the “Federal Republic of
Yugoslavia” to “Serbia and Montenegro”. Following the announcement of the result of a
referendum held in Montenegro on 21 May 2006 (as contemplated in the Constitutional Charter of
Serbia and Montenegro), the National Assembly of the Republic of Montenegro adopted a
declaration of independence on 3 June 2006.
By letters dated 6 May 2008, the Registrar info rmed the Parties that the Court asked them to
address, during the hearings, the issue of the capacity of the Respondent to participate in
proceedings before the Court at the time of filing of the Application, given the fact that the issue
had not been addressed as such in the written pleadings.
Public sittings were held from 26May to 30May2008. At the conclusion of the oral
proceedings, the Parties presented the following final submissions to the Court:
On behalf of the Government of Serbia,
at the hearing of 29 May 2008:
“For the reasons given in its written submissions and its oral pleadings, Serbia
requests the Court to adjudge and declare:
1. that the Court lacks jurisdiction,
or, in the alternative:
2. (a) that claims based on acts and omissions which took place prior to
27 April 1992 are beyond the jurisdiction of this Court and inadmissible; and
(b) that claims referring to
⎯ submission to trial of certain persons within the jurisdiction of Serbia,
⎯ providing information regarding th e whereabouts of missing Croatian
citizens, and
⎯ return of cultural property
are beyond the jurisdiction of this Court and inadmissible.”
On behalf of the Government of Croatia,
at the hearing of 30 May 2008:
“On the basis of the facts and legal arguments presented in our Written
Observations, as well as those during these oral pleadings, the Republic of Croatia
respectfully requests the International Court of Justice to:
(1) reject the first, second and third prelimin ary objection of Serbia, with the
exception of that part of the second pr eliminary objection which relates to the
claim concerning the submission to trial of Mr.SlobodanMilošević, and
accordingly to
(2) adjudge and declare that it has jurisdiction to adjudicate upon the Application filed
by the Republic of Croatia on 2 July 1999.” - 3 -
Identification of the respondent Party (paras. 23-34)
The Court first observes that it needs to identify the respondent Party before it. It notes that,
by a letter dated 3June2006, the President of the Republic of Serbia (hereinafter “Serbia”)
informed the Secretary-General of the United Nations that, following a referendum held on
21May2006, the National Assembly of the Republic of Montenegro adopted a declaration of
independence, and that
“the membership of the state union Serbia and Montenegro in the United Nations,
including all organs and organizations of the United Nations system, [would be]
continued by the Republic of Serbia, on the basis of Article60 of the Constitutional
Charter of Serbia and Montenegro”.
He further stated that “in the United Nations the na me ‘Republic of Serbia’ [was] to be henceforth
used instead of the name ‘Serbia and Monteneg ro’” and added that the Republic of Serbia
“remain[ed] responsible in full for all the rights and obligations of the state union of Serbia and
Montenegro under the UN Charter”.
The Court recalls that, by letters dated 19Ju ly2006, the Registrar requested the Agent of
Croatia, the Agent of Serbia and the Minister for Foreign Affairs of Montenegro to communicate to
the Court the views of their Governments on the consequences to be attached to the
above-mentioned developments regarding the identity of the Respondent in the case. It notes that,
by a letter dated 22July2006, the Agent of Serbia explained that, in his Government’s opinion,
“the Applicant ha[d] first to ta ke a position, and to decide whether it wishe[d] to maintain its
original claim encompassing both Serbia and Monten egro, or whether it [chose] to do otherwise”.
By a letter dated 29November2006, the Chief State Prosecutor of Montenegro stated that
“Montenegro [might] not have [the] capacity of r espondent” in the dispute before the Court. The
Court further notes that, by a letter dated 15May 2008, the Agent of Croatia confirmed that the
proceedings instituted by Croatia on 2 July 1999 were “maintained against [the] Republic of Serbia
as Respondent” and that this conclusion was “without prejudice to the potential responsibility of
[the] Republic of Montenegro and the possibility of instituting separate proceedings against it”.
The Court observes that the facts and events on which the submissions of Croatia on the
merits are based occurred at a period of time when Serbia and Montenegro were part of the same
State. It further notes that Serbia has accepted “continuity between Serbia and Montenegro and the
Republic of Serbia”. Montenegro, on the other ha nd, is a new State admitted as such to the United
Nations. It does not continue the international legal personality of the State union of Serbia and
Montenegro.
The Court recalls the fundamental principle that no State may be subject to its jurisdiction
without its consent. It states th at Montenegro made clear in its letter of 29 November 2006 that it
does not give its consent to the jurisdiction of the Court over it for the purposes of the dispute.
Furthermore, according to the Court, the events referred to above clearly show that 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. The Court finally notes that the
Applicant did not in its letter of 15 May 2008 assert that Montenegro is still a party to the case.
The Court thus concludes that Serbia is the sole Respondent in the case.
General overview of the arguments of the Parties (paras. 35-42)
The Court observes that, in its Application, Croatia, referring to acts which occurred during
the conflict that took place between 1991 and 1995 in the territory of the former Socialist Federal
Republic of Yugoslavia (hereinafter the “SFRY”), contended that the FRY had committed
violations of the Genocide Convention. The Government of the FRY contested the admissibility of - 4 -
the Application as well as the jurisdiction of the Court under ArticleIX of the Genocide
Convention on several grounds.
The Court notes that, with regard to the qu estion of the capacity of the Respondent under
Article35 of the Statute to participate in the proceedings, the Respondent claimed that it did not
have such capacity, because, as the Court had confirmed in 2004 in the cases concerning Legality
of Use of Force, it was not a Member of the United Na tions until 1 November 2000 and therefore
not party to the Statute at the time of filing of the Application on 2July 1999. Croatia, however,
argued that the FRY was a Member of the United Nations at the time of filing of the Application
and that even if that was not the case, the status of Serbia within the United Nations in 1999 did not
affect the proceedings as the Respondent became a Member of the United Nations in 2000 and
thereby validly gained capacity to take part in the present proceedings.
The Court notes that the Respondent raised a preliminary objection concerning the
jurisdiction of the Court on the basis of Article IX of the Genocide Convention. In the Application,
Croatia had maintained that both Parties we re bound by the Genocide Convention as successor
States of the SFRY. Serbia stated that the Cour t’s jurisdiction in the case, which was instituted on
2 July 1999, could not be based on Article IX of th e Genocide Convention, in view of the fact that
the FRY did not become bound by the Convention in any way before 10June2001, the date at
which its notification of accession to the Genocide Convention became effective with a reservation
regarding Article IX.
The Court observes that Serbia also contende d that Croatia’s Application was inadmissible
so far as it refers to acts or omissions prio r to the FRY’s proclamation of independence on
27April1992. Serbia stated that acts or omi ssions which took place before the FRY came into
existence could not be attributed to it. Croatia st ated that although Serbia’s preliminary objection,
as stated in its final submission 2 (a), is presented as an objection to the admissibility of the claim,
in point of fact Serbia seemed to be arguing that the Court had no jurisdiction ratione temporis over
acts or events occurring before 27 April 1992. In this regard, it referred to the Court’s Judgment of
11July 1996 in which the Court stated that there are no temporal limitations to the application of
the Genocide Convention and to its exercise of jurisdiction under the said Convention, in the
absence of reservations to that effect. During the oral pleadings, Serbia maintained the alternative
argument that the Court lacked jurisdiction ratione temporis for acts or events that occurred before
27 April 1992, the date it came into existence, on the grounds that this date was the earliest possible
point in time at which the FRY could have become bound by the Genocide Convention.
The Court finally notes that Serbia ma intained that Croatia’s submissions2 (a), 2 (b) and
2 (c) in its Memorial concerning, respectively, the submission to trial of persons suspected of
having committed acts of genocide (including Slobodan Miloševi ć), missing persons and return of
cultural property, were “inadmissible and moot.
The Court examines each of these arguments in turn.
Brief history of the status of the FRY with regard to the United Nations (paras. 43-51)
The Court gives a brief account of the disinteg ration process of the SFRY in the early 1990s
and of the decisions of the United Nations with resp ect to the legal status of the FRY. It recalls
inter alia that on 22 September 1992, the General Assembly, acting on the recommendation of the
Security Council, adopted resolution47/1, whereby it was decided that the FRY should apply for
membership in the United Nations and that it shoul d not participate in the work of the General
Assembly. It notes that the “ sui generis position which the FRY found itself in” during the period
between 1992 to 2000 (as the Court characterized it in a 2003Judgment) came to an end with a
letter dated 27October2000 sent by Mr.Koštunica to the United Nations Secretary-General, by
which the newly elected President of the FRY requested admission of the FRY to membership in
the United Nations. This membership was effective as of 1 November 2000. - 5 -
Relevance of previous decisions of the Court (paras. 52-56)
The Court observes that the question of the status and position of the State known at the time
of the filing of the Application as the FRY, in relation to the Statute of the Court and to the
Genocide Convention, has been in issue in a numbe r of previous decisions. In the case concerning
Application of the Convention on the Preventi on and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), there were two decisions on requests for the
indication of provisional measures (Orders of 8April and 13September1993), a decision on
preliminary objections (Judgment of 11July1996) and a decision on the merits (Judgment of
26February2007). In the case concerning Application for Revision of the Judgment of
11 July 1996 in the Case concerning Application of the Convention on the Prevention and
Punishment of the Crime of Ge nocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections (Yugoslavia v. Bosnia and Herzegovina) , the Court delivered a Judgment on
3 February 2003. In the set of cases concerning the Legality of Use of Force brought by the FRY
against ten Member States of the North Atlantic Treaty Organization the Court rendered Judgments
in eight of those cases on 15 December 2004 upholding preliminary objections on the ground of a
lack of capacity on the part of the Applicant to appear before the Court.
Both Parties having cited these various decisi ons in support of their respective contentions,
the Court finds it convenient at the outset to indicate to what extent it considers that these decisions
may have weight for the purpose of deciding the matters before it.
The Court states that, while some of the fact s and the legal issues dealt with in the other
cases arise also in the current one, none of those decisions were given in proceedings between the
two Parties to the case (Croatia and Serbia), so that, as the Parties recognize, no question of res
judicata arises (Article59 of the Statute of the Court). To the extent that the decisions contain
findings of law, the Court indicates that it will treat th em as it treats all previous decisions: that is
to say that, while those decisions are in no way binding on the Court, it will not depart from its
settled jurisprudence unless it finds very particular reasons to do so.
Preliminary objection to the jurisdiction of the Court (paras. 57-119)
⎯ Issues of capacity to be a party to the proceedings (paras. 57-92)
The Court first examines whether the Parties satisfy the general conditions, under Articles 34
and 35 of the Statute, for capacity to participate in proceedings before the Court.
It notes that it is neither disputed nor disput able that both Parties satisfy the condition laid
down in Article34 of the Statute: Croatia a nd Serbia are States for purposes of Article34,
paragraph 1. It further notes that it is not disputed nor is it open to doubt that, at the date it filed its
Application, 2 July 1999, Croatia satisfied a c ondition under Article 35 of the Statute sufficient for
the Court to be “open” to it: at that date it was a Member of the United Nations and, as such,
therefore a party to the Statute of the Court. The question is whether Serbia satisfies, for the
purposes of the case, the conditions under Article 35, paragraph 1 or paragraph 2, of the Statute and
whether, in view of the foregoing, it has capacity to participate in the proceedings before the Court.
After describing the Parties’ positions in this respect, the Court stresses again that no
previous decision having of itself any authority as res judicata in the case, the question of the
Respondent’s capacity must be examined de novo, in the context of the dispute before the Court.
The Court deems it appropriate to examine the question of Serbia’s access to the Court on
the basis of Article35, paragraph1, before any ex amination on the basis of paragraph2. It then
considers whether fulfilment of the conditions laid down in Article35 of the Statute must be - 6 -
assessed solely as of the date of filing of the Application, or wh ether it can be assessed, at least
under the specific circumstances of the case, at a sub sequent date, more precisely at a date after
1 November 2000.
The Court recalls that in numerous cases, it has reiterated the general rule which it applies in
this regard, namely: “the jurisdiction of the Court must normally be assessed on the date of the
filing of the act instituting proceedings”. It no tes however that, like its predecessor the Permanent
Court of International Justice (PCIJ), it has also shown realism and flexibility in certain situations
in which the conditions governing the Court’s jurisdiction were not fully satisfied when
proceedings were initiated but were subsequen tly satisfied, before the Court ruled on its
jurisdiction. It recalls that, in its Judgment of 30August1924 on the objection to jurisdiction
raised by the Respondent in the Mavrommatis Palestine Concessions case, the PCIJ:
“it must . . . be considered whether the validity of the institution of proceedings can be
disputed on the ground that the application was filed before Protocol XII [annexed to
the Treaty of Lausanne] had become applicable . This is not the case. Even assuming
that before that time the Court had no ju risdiction because the international obligation
referred to in Article 11 [of the Mandate for Palestine] was not yet effective, it would
always have been possible for the applicant to re-submit his application in the same
terms after the coming into force of the Treaty of Lausanne, and in that case, the
argument in question could not have been advanced. Even if the grounds on which the
institution of proceedings was based were de fective for the reason stated, this would
not be an adequate reason for the dismissal of the applicant’s suit. The Court, whose
jurisdiction is international, is not bound to attach to matters of form the same degree
of importance which they might possess in municipal law. Even, therefore, if the
application were premature because the Treaty of Lausanne had not yet been ratified,
this circumstance would now be covered by the subsequent deposit of the necessary
ratifications.” (Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 34.)
The Court goes on to recall that, in its own jurisprudence, operation of the same idea is
discernible in the Northern Cameroons (Cameroon v. United Kingdom) case (Preliminary
Objections, Judgment, I.C.J. Reports 1963 , p.28), and in the case concerning Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) , in the
passage stating: “It would make no sense to require Nicaragua now to institute fresh proceedings
based on the [1956] Treaty [of Friendship], which it would be fully entitled to do.” ( Jurisdiction
and Admissibility, Judgment, I.C.J. Reports 1984, pp. 428-429, para. 83.)
Finally, the Court notes that it was confronted more recently with a comparable situation
when it ruled on the preliminary ob jections in the case concerning Application of the Convention
on the Prevention and Punishment of the Cr ime of Genocide (Bosnia and Herzegovina v.
Yugoslavia) (Preliminary Objections, Judgment, I.C.J. Reports 1996 (II) , p. 595). The Respondent
argued that the Genocide Convention— the basis of jurisdiction— had only begun to apply to
relations between the two Parties on 14Dece mber1995, the date when, pursuant to the
Dayton-Paris Agreement, they recognized each other, whereas the Application had been submitted
on 20 March 1993, that is to say more than two-and-a-half years earlier.
The Court responded to that argument as follows:
“In the present case, even if it were established that the Parties, each of which
was bound by the Convention when the Application was filed, had only been bound as
between themselves with effect from 14 December 1995, the Court could not set aside
its jurisdiction on this basis, inasmuch as Bosnia and Herzegovina might at any time
file a new application, identical to the present one, which would be unassailable in this
respect.” (Ibid., p. 614, para. 26.) - 7 -
The Court notes that Croatia relies on this juri sprudence, which it contends can be directly
transposed to the case, while Serb ia disputes these arguments, contending that the jurisprudence in
question is not applicable to the case for two reasons. First, the Respondent notes that in all of the
precedents cited it was not the respondent alone, wh ich was unable to fulfil one of the conditions
necessary for the Court to uphold jurisdiction at the date the proceedings were instituted, but this
was not a point Serbia chose to rely on. Secondl y and more importantly, according to Serbia, the
jurisprudence cannot be applied where the unmet condition concerns the capacity of a party to
participate in proceedings before the Court, in accordance with Articles34 and35 of the Statute.
Further, Serbia adds, the Court did not apply th e “Mavrommatis doctrine” in its 2004 Judgments in
the Legality of Use of Force cases, since, after finding that the Applicant was not a party to the
Statute of the Court at the date the Applications were filed and did not therefore have the right of
access to the Court, it held that it lacked jurisdic tion, even though it mentioned the fact that the
Applicant had been a Member of the United Nations since 1 November 2000.
The Court observes that as to the first of these two arguments, given the logic underlying the
cited jurisprudence of the Court deriving from the 1924Judgment in the Mavrommatis Palestine
Concessions case, it does not matter whether it is the applicant or the respondent that does not fulfil
the conditions for the Court’s jurisdiction, or both of them— as is the situation where the
compromissory clause invoked as the basis for ju risdiction only enters into force after the
proceedings have been instituted. The Court sees no convincing reason why an applicant’s
deficiency might be overcome in the course of pr oceedings, while that of a respondent may not.
What matters is that, at the latest by the date when the Court decides on its jurisdiction, the
applicant must be entitled, if it so wishes, to br ing fresh proceedings in which the initially unmet
condition would be fulfilled. In such a situa tion, it is not in the interests of the sound
administration of justice to compel the applicant to begin the proceedings anew— or to initiate
fresh proceedings— and it is preferable, except in special circumstances, to conclude that the
condition has, from that point on, been fulfilled.
With respect to the second argument, the Court admits that it is true that all of the cited
precedents concern cases where the initially unfulfilled condition related to jurisdiction ratione
materiae or ratione personae in the narrow sense and not to the question of access to the Court,
which has to do with a party’s capacity to participate in any proceedings whatever before the Court.
Nevertheless, the Court states that it cannot endorse the radical interpretation advanced by Serbia,
namely that whenever it is seised by a State which does not fulfil the conditions of access under
Article35, or seised of a case brought against a State which does not fulfil those conditions, the
Court does not even have the compétence de la compétence, the competence to decide whether or
not it has jurisdiction. The Court recalls that it always possesses the compétence de la compétence
(see Article 36, paragraph 6, of the Statute).
The Court adds that, more importantly, it cannot accept Serbia’s argument that when the
defect is that one party does not have access to the Court, it is so fatal that it can in no case be cured
by a subsequent event in the course of the pro ceedings, for example when that party acquires the
status of party to the Statute of the Court which it initially lacked. It notes that it is not apparent
why the arguments based on the sound administration of justice which underpin the Mavrommatis
case jurisprudence cannot also have a bearing in the case. It would not be in the interests of justice
to oblige the Applicant, if it wishes to pursue its claims, to initiate fresh proceedings. In this
respect it finds that it is of no importance which condition was unmet at the date the proceedings
were instituted, and thereby prevented the Court at that time from exercising its jurisdiction, once it
has been fulfilled subsequently.
The Court observes that it is true that it apparently did not take account in its
2004Judgments of the fact that Serbia and Monten egro had by that date become a party to the
Statute: indeed, the Court found that it lacked jurisdiction on the sole ground that the Applicant did
not have access to the Court in 1999, when the Applications were filed, without taking its reasoning
any further. But if the Court abided in those cases strictly by the general rule that its jurisdiction is - 8 -
to be assessed at the date of filing of the act instituting proceedings, without adopting the more
flexible approach following from the other decisions cited above, that is ju stified by particular
considerations relevant to those cases. It notes inter alia that it was clear that Serbia and
Montenegro did not have the intention of pursui ng its claims by way of new applications.
According to the Court, that State itself argued before the Court that it was not, and never had been,
bound by ArticleIX of the Genocide Convention, even though that was the basis for jurisdiction
which it had initially invoked in said cases. In the Court’s view, it is concern for judicial economy,
an element of the requirements of the sound administration of justice, which justifies application of
the jurisprudence deriving from the Mavrommatis Judgment in appropriate cases. The purpose of
this jurisprudence is to prevent the needless pro liferation of proceedings. It goes on to say that
while Croatia is asking the Court to apply the jurisprudence of the Mavrommatis case to the current
case, no such request was made, or could logically have been made, by the Applicant in 2004.
The Court accordingly concludes that on 1 November 2000 the Court was open to the FRY.
Therefore, should the Court find that Serbia was bound by ArticleIX of the Convention on
2 July 1999, the date on which proceedings in the case were instituted, and remained bound by that
Article until at least 1 November 2000, the Court will be in a position to uphold its jurisdiction.
In view of this finding, the question whet her the conditions laid down in Article35,
paragraph 2, have been fulfilled has no pertinence in the case.
⎯ Issues of jurisdiction ratione materiae (paras. 93-117)
The Court then considers the question of its jurisdiction ratione materiae, which forms the
second aspect of the first preliminary objection submitted by Serbia requesting the Court to declare
that it lacks jurisdiction. It notes that Serbia categorizes this as an element of jurisdiction ratione
personae.
The Court recalls that the basis of jurisdiction asserted by Croatia is ArticleIX of the
Genocide Convention and that it is common ground between the Parties that Croatia is, and has
been at all relevant times, a party to the Ge nocide Convention, and has not made any reservation
excluding the application of Article IX.
It notes that Serbia’s objection is to the effect that it was not itself a party to that Convention
at the date of filing of the Application instituting proceedings (2July1999); it maintains that it
only became a party by accession in June2001. Fu rthermore the notification of accession by the
FRY, dated 6March2001 and depos ited on 12March2001, contained a reservation to the effect
that the FRY “does not consider itself bound by Article IX of the Convention”.
The Court starts by recalling that according to its established jurisprudence, if a title of
jurisdiction is shown to have existed at the date of the institution of proceedings, any subsequent
lapse or withdrawal of the jurisdictional instrument is without effect on the jurisdiction of the
Court. It adds that if therefore the FRY was a party to the Genocide Convention, including its
Article IX, on 2 July 1999, the date on which procee dings were instituted, and if it continued to be
bound by Article IX of the Convention until at least 1 November 2000, the date on which the FRY
became a party to the Statute of the Court, then, the Court continues to have jurisdiction.
The Court considers the history of the relationship to the Convention of, first, the SFRY,
and, subsequently, of the Respondent. It examines in particular a formal declaration adopted on
behalf of the FRY on 27April1992, and an official Note of the same date transmitted with that
declaration to the Secretary-General of the United Nations. It notes that the FRY did not consider
itself to be one of the successor States of the SFRY emerging from the dissolution of that State, but
the sole continuing State, maintaining the personality of the former SFRY, with the implication that - 9 -
the other States formed from the former Yugosla via were new States, though entitled to assert the
rights of successor States. This policy of the FRY was maintained until a change of Government in
2000, and a subsequent application to the United Nations for admission as a new Member.
The Court examines what was the nature and effect of the 1992 declaration and Note on the
position of the FRY in relation to the Genocide Conve ntion. It first finds that there can be no
doubt, from the subsequent conduct of those char ged with the affairs of the FRY, that the
declaration was regarded by the State as made on its behalf, and the commitments contained in it
were endorsed and accepted by the FRY. The Cour t then considers whether the 1992declaration
and Note were “made in sufficiently specific terms in relation to the particular question” of
acceptance to be bound by international treaty obligations. It notes that the 1992declaration and
Note did not merely state that the FRY would abide by certain commitments: it specified that these
were the commitments “that the SFR of Yugoslavia assumed internationally” or “in international
relations”. While the treaties contemplated were not specified by name, the declaration referred to
a class of instruments which was perfectly ascertainable at the moment of making of the
declaration: the treaty “commitments” binding on the SFRY at the moment of its dissolution. In
the Court’s view, there is no doubt that the Genocide Convention was one of these “commitments”.
The Court goes on to say that there is a distincti on between the legal nature of ratification of, or
accession to a treaty, on the one hand, and on th e other, the process by which a State becomes
bound by a treaty as a successor State or remains bound as a continuing State. Accession or
ratification is a simple act of will on the part of the State manifesting an intention to undertake new
obligations and to acquire new rights in terms of the treaty, effected in writing in the formal manner
set out in the Treaty (cf. Arts. 15 and 16 of the Vienna Convention on the Law of Treaties). In the
case of succession or continuation on the other hand, the act of will of the State relates to an
already existing set of circumstances, and amounts to a recognition by that State of certain legal
consequences flowing from those circumstances, so that any document issued by the State
concerned, being essentially confirmatory, may be subject to less rigid requirements of form.
Article 2 (g) of the 1978 Vienna Convention on Succession of States in Respect of Treaties reflects
this idea, defining a “notification of succession” as meaning “in relation to a multilateral treaty, any
notification, however framed or named , made by a successor State expressing its consent to be
considered as bound by the treaty”. Nor does inte rnational law prescribe any specific form for a
State to express a claim of continuity. The Court notes that the 1992 declaration was not expressed
in the terms of one of the r ecognized legal acts by which a State may become a party to a
multilateral convention. It observes, however, that in order to constitute a valid and effective
means by which the declaring State could assume obligations under the Convention, the declaration
need not strictly comply with all formal requirements.
The Court then considers whether the 1992 declaration and Note, coupled with other
consistent conduct of Serbia, indicate such a un ilateral acceptance of the obligations of the
Genocide Convention, by a process equivalent, in the special circumstance s of the case, to a
succession to the status of the SFRY. It finds th at the 1992declaration must be considered as
having had the effects of a notification of successi on to treaties, notwithstanding that its political
premise was different. It further finds that th e conduct of Serbia after the transmission of the
declaration made it clear that it regarded it self bound by the Genocide Convention. It notes inter
alia that, during the period between the making of the 1992 declaration and the filing of Croatia’s
Application, neither the FRY nor any other Stat e for which the issue might have had significance
questioned that the FRY was a party to the Genoc ide Convention, without reservations; and no
other event occurring during that period had any impact on the legal situation arising from the
1992declaration. On 1November2000, the FRY was admitted as a new Member of the United
Nations, but the FRY did not at that time withdr aw, or purport to withdraw, the declaration and
Note of 1992, which had been drawn up in the light of the contention that the FRY was continuing
the legal personality of the SFRY. The Court notes that it was not until March 2001 that the FRY
took any further step inconsistent with the status which it had since 1992 been claiming to possess, - 10 -
namely that of a State party to the Genocide Convention. On 12 March 2001 it deposited with the
Secretary-General a notification of accession to th e Genocide Convention, containing a reservation
to Article IX.
In sum, the Court, taking into account both the text of the declaration and Note of
27 April 1992, and the consistent conduct of the FR Y at the time of its making and throughout the
years 1992-2001, considers that it should attribute to those documents precisely the effect that they
were, in the view of the Court, in tended to have on the face of thei r terms: namely, that from that
date onwards the FRY would be bound by the obligations of a party in respect of all the multilateral
conventions to which the SFRY had been a party at the time of its dissolution, subject of course to
any reservations lawfully made by the SFRY lim iting its obligations. It notes that it is common
ground that the Genocide Convention was one of these conventions, and that the SFRY had made
no reservation to it; thus the FRY in 1992 accepted the obligations of that Convention, including
ArticleIX providing for the jurisdiction of the Court and that jurisdictional commitment was
binding on the Respondent at the date the proceedi ngs were instituted. In the events that have
occurred, this signifies that the 1992declaration and Note had the effect of a notification of
succession by the FRY to the SFRY in relation to the Genocide Convention. The Court concludes
that, subject to the more specific objections of Serb ia to be further examined, it had, on the date on
which the proceedings were instituted, jurisdiction to entertain the case on the basis of Article IX of
the Genocide Convention. That situation continue d at least until 1November2000, the date on
which Serbia and Montenegro became a Member of the United Nations and thus a party to the
Statute of the Court.
Having established that the conditions for its jurisdiction are met and without prejudice to its
findings on the other preliminary objections submitte d by Serbia, the Court concludes that the first
preliminary objection, “that the Court lacks jurisdiction”, must be rejected.
Preliminary objection to the jurisdiction of the Court and to admissibility, ratione temporis
(paras. 120-130)
The Court then turns to the second preliminary objection as stated in Serbia’s final
submission 2 (a), namely the objection that “claims based on acts and omissions which took place
prior to 27 April 1992”, that is to say prior to the formal establishment of the “Federal Republic of
Yugoslavia (Serbia and Montenegro)”, “are beyond the jurisdiction of this Court and inadmissible”.
The Court notes that the preliminary objection is presented as, at one and the same time, an
objection to jurisdiction and one going to the admissib ility of the claims. It recalls that the title of
jurisdiction relied on by Croatia is Article IX of the Genocide Convention, and that it has already
established that Croatia and Serbia were both pa rties to that Convention on the date on which
proceedings were instituted (2July1999). Serbia’s contention is however that the Court has no
jurisdiction under Article IX, or that jurisdiction ca nnot be exercised, so far as the claim of Croatia
concerns “acts and omissions that took place pr ior to 27April1992”, i.e., that the Court’s
jurisdiction is limited ratione temporis.
In the view of the Court, the questions of jurisdiction and admissibility raised by Serbia’s
preliminary objection ratione temporis constitute two inseparable issues in the case. The first issue
is that of the Court’s jurisdiction to determin e whether breaches of the Genocide Convention were
committed in the light of the facts that occurred prior to the date on which the FRY came into
existence as a separate State, capable of being a pa rty in its own right to the Convention; this may
be regarded as a question of the applicability of the obligations under the Genocide Convention to
the FRY before 27April1992. The second issue, th at of admissibility of the claim in relation to
those facts, and involving questions of attributi on, concerns the consequences to be drawn with
regard to the responsibility of the FRY for tho se same facts under the general rules of State
responsibility. In order to be in a position to ma ke any findings on each of these issues, the Court
needs to have more elements before it. - 11 -
In view of the foregoing, the Court concludes that Serbia’s preliminary objection ratione
temporis does not possess, in the circumstances of the case, an exclusively preliminary character.
Preliminary objection concerning the subm ission of certain persons to trial ; the provision of
information on missing Croatian citizens; and the return of cultural property (paras. 131-144)
The Court finally considers Serbia’s third obj ection, according to which “claims referring to
submission to trial of certain persons within th e jurisdiction of Serbia, providing information
regarding the whereabouts of missi ng Croatian citizens and return of cultural property are beyond
the jurisdiction of this Court and inadmissible”.
⎯ Submission of persons to trial
The Court recalls that in submission2 (a) of its Memorial, Croatia requested the Court to
find that Serbia is under an obligation:
“to take immediate and effective steps to submit to trial before the appropriate judicial
authority, those citizens or other persons w ithin its jurisdiction who are suspected on
probable grounds of having committed act s of genocide as referred to in
paragraph (1) (a), or any of the other acts referred to in paragraph(1) (b) [of the
Submissions of Croatia], in particular Slobodan Miloševi ć, the former President of the
Federal Republic of Yugoslavia, and to ensure that those persons, if convicted, are
duly punished for their crimes”.
The Court notes that Croatia has adjusted its submissions to take account of the fact that
former President Slobodan Milošević had, since the presentation of the Memorial, been transferred
to the ICTY, and has since died. Furthermore, Croatia accepts that this submission is now moot in
respect of a number of other persons whom Serbia has transferred to the International Criminal
Tribunal for the former Yugoslavia (ICTY), but insists that there continues to be a dispute between
Croatia and Serbia with respect to persons who have not been submitted to trial either in Croatia or
before the ICTY in respect of acts or omissions which are the subject of the current proceedings.
Serbia, for its part, maintains, as a first basis of its objection, that as a matter of fact there is only
one person still at large who has been accused by the ICTY of crimes allegedly committed in
Croatia, and these accusations relate not to genocide but to war crimes and crimes against
humanity.
Having reviewed the arguments of both Parties, the Court explains that it understands the
first basis of Serbia’s submission to be essentially a matter of admissibility: it amounts to an
assertion that, on the facts of the case as they now stand, the claim is moot, in the sense that Croatia
has not shown that there are at the present time any persons charged with genocide, either by the
ICTY or by the courts of Croatia, who are on the territory or within the control of Serbia. Whether
that is correct will be a matter for the Court to determine when it examines the claims of Croatia on
the merits. The Court therefore rejects the objection and sees no remaining issue of admissibility.
⎯ Provision of information on missing Croatian citizens
The Court recalls that the Appli cant asked the Court by submission 2 (b) to find that Serbia
is under an obligation
“to provide forthwith to the Applicant all information within its possession or control
as to the whereabouts of Croatian citizens who are missing as a result of the genocidal
acts for which [Serbia] is responsible, and generally to cooperate with the authorities
of the Republic of Croatia to jointly ascertain the whereabouts of the said missing
persons or their remains”. - 12 -
It notes that according to Serbia, the relevant acts committed in Croatia do not amount to
genocide, so that the obligations under the Genocide Convention do not apply. Serbia has also
drawn attention to co-operation between the two States concerning the location and identification
of missing persons, both direct and in the context of the work of the International Commission for
Missing Persons, and to the existence of bilateral treaty-instruments concluded by the two States
imposing obligations to exchange data about missing persons.
The Court finds that the question what remedies it might appropriately order in the exercise
of its jurisdiction under ArticleIX of the Conve ntion is one which is necessarily dependent upon
the findings that it may in due course make of breaches of the Convention by the Respondent. As a
matter which is essentially one of the merits, and one dependent upon the principal question of
responsibility raised by the claim, this is not a matter that may be the proper subject of a
preliminary objection and the Court concludes that the preliminary objection submitted by Serbia,
so far as it relates to Croatian submission 2 (b), must be rejected.
⎯ Return of cultural property
submis2sion (c) advanced by Croatia, which is also challenged by Serbia, the Applicant
asked the Court to find that Serbia is under an ob ligation “forthwith to return to the Applicant any
items of cultural property within its jurisdiction or control which were seized in the course of the
genocidal acts for which it is responsible”.
Here again, having reviewed the arguments of the Parties, the Court finds that the question
what remedies it might appropriately order is one which is necessarily dependent upon the findings
that it may in due course make of breaches of the Genocide Convention by the Respondent; it is
not a matter that may be the proper subject of a preliminary objection. The Court thus concludes
that the preliminary objection submitted by Serbia, so far as it relates to Croatian submission 2 (c),
must be rejected.
⎯ Conclusion
The Court thus finds that Serbia’s third preliminary objection must be rejected in its entirety.
Subsequent procedure (para. 145)
Having established its jurisdiction, the Court ob serves that it will consider the preliminary
objection that it has found to be not of an exclusively preliminary character when it reaches the
merits of the case. In accordance with Article 79, paragraph 7, of the Rules of Court as adopted on
14 April 1978, time-limits for the further proceedings will be fixed subsequently by the Court.
Operative clause (para. 146)
“For these reasons,
T HE COURT ,
(1) By ten votes to seven,
Rejects the first preliminary objection submitted by the Republic of Serbia in so far as it
relates to its capacity to participate in the proceed ings instituted by the Application of the Republic
of Croatia;
IN FAVOUR : PresidentHiggins; Vice-PresidentAl-Khasawneh; Judges Buergenthal, Simma,
Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna;Judge ad hoc Vukas; - 13 -
AGAINST : Judgesanjeva, Shi, Koroma, Parra-Aranguren, Owada, Skotnikov;
Judge ad hoc Kreća;
(2) By twelve votes to five,
Rejects the first preliminary objection submitted by the Republic of Serbia in so far as it
relates to the jurisdiction ratione materiae of the Court under ArticleIX of the Convention on the
Prevention and Punishment of the Crime of Genocide to entertain the Application of the Republic
of Croatia;
IN FAVOUR : PresidentHiggins; Vice-PresidentAl-Khasawneh; Judges Buergenthal, Owada,
Simma, Tomka, Abraham, Keith, Sepúl veda-Amor, Bennouna, Skotnikov;
Judge ad hoc Vukas;
AGAINST : Judges Ranjeva, Shi, Koroma, Parra-Aranguren; Judge ad hoc Kreća;
(3) By ten votes to seven,
Finds that subject to paragraph 4 of the present operative clause the Court has jurisdiction to
entertain the Application of the Republic of Croatia;
IN FAVOUR : PresidentHiggins; Vice-PresidentAl-Khasawneh; Judges Buergenthal, Simma,
Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna;Judge ad hoc Vukas;
AGAINST : Judgesanjeva, Shi, Koroma, Parra-Aranguren, Owada, Skotnikov;
Judge ad hoc Kreća;
(4) By eleven votes to six,
Finds that the second preliminary objection submitte d by the Republic of Serbia does not, in
the circumstances of the case, possess an exclusively preliminary character;
IN FAVOUR : PresidentHiggins; Vice-PresidentAl-Khasawneh; Judges Ranjeva, Buergenthal,
Owada, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge ad hoc Vukas;
AGAINST : Judges Shi, Koroma, Parra-Aranguren, Tomka, Skotnikov; Judge ad hoc Kreća;
(5) By twelve votes to five,
Rejects the third preliminary objection submitted by the Republic of Serbia;
IN FAVOUR : PresidentHiggins; Vice-PresidentAl-Khasawneh; Judges Ranjeva, Buergenthal,
Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna;
Judge ad hoc Vukas;
AGAINST : Judges Shi, Koroma, Parra-Aranguren, Skotnikov; Judge ad hoc Kreća.”
*
Vice-President Al-Khasawneh appends a separate opinion to the Judgment of the Court;
JudgesRanjeva, Shi, Koroma and Parra-Aranguren append a joint declaration to the Judgment of
the Court; Judges Ranjeva and Owada append dissen ting opinions to the Judgment of the Court;
Judges Tomka and Abraham append separate opi nions to the Judgment of the Court; - 14 -
JudgeBennouna appends a declaration to the Judgm ent of the Court; JudgeSkotnikov appends a
dissenting opinion to the Judgment of the Court; Judge ad hoc Vukas appends a separate opinion
to the Judgment of the Court; Judge ad hoc Kreća appends a dissenting opinion to the Judgment of
the Court.
___________ Annex to Summary 2008/5
Separate opinion of Vice-President Al-Khasawneh
The Vice-President appended a separate opinion in which he agreed that the Court has
jurisdiction to decide the case on the merits, but disagreed with two of the premises on which the
Judgment of the Court is based, namely (i) that the Federal Republic of Yugoslavia (FRY) had no
access to the Court between its inception and its admission as a new Member of the United Nations
and (ii) that this defect is curable by an innovative interpretation of the Mavrommatis principle.
The Vice-President noted that the first of those premises is based on the 2004 Judgments in
the Legality of Use of Force cases (2004Judgment), in which the Court inferred, from the
2000admission of the FRY to the United Nations, a retroactive clarification of the status of the
FRY revealing that it had not been a United Na tions Member in the period 1992-2000. The
Vice-President, recalling his disagreement with th e reasoning in the 2004 Judgment, stated that the
2007Genocide Judgment did not resolve the contradictions in the 2004Judgment but obscured
them by invoking the doctrine of res judicata. The Vice-President expressed his regret that in the
present case the Court has chosen to revive the 200 4 Judgment rather than putting it to rest, noting
the moral and logical implications of the eight-year collective disappearing act of the FRY.
The second premise with which the Vice-President disagreed was the interpretation by the
majority of the Mavrommatis principle, which is the rule whereby the Court will not insist on a
new application if at the time of the institution of proceedings a procedural defect exists which is
curable by a subsequent action of the applican t. The Vice-President recalled the sequence of
pertinent developments in this case, notably th e admission of the FRY to the United Nations in
November2000; the depositing by the FRY of an instrument of accession to the Genocide
Convention dated 6 March 2001 containing a reservation to Article IX of that Convention; and the
objection to that reservation by Croatia on the grounds that the FRY was “already bound by the
Convention since its emergence as one of the five equal successor States of the SFRY”. In the
Vice-President’s view, this reservation, unless invalid, is an obstacle to invoking the Mavrommatis
principle, and the invalidation of this reservati on would be a prerequisite for upholding the Court’s
jurisdiction ratione materiae on the basis of the Mavrommatis principle. Since the Judgment
avoided reaching a conclusion whereby the reservati on is invalid, he thought that the reasoning
based on Mavrommatis would lead nowhere.
The Vice-President concluded by recalling that in his opinion the FRY was a continuator of
the SFRY until 2000 when it became a successor State and was bound by the Genocide Convention
by virtue of the ratification of that Convention by the SFRY. For those reasons, the Vice-President
would uphold the jurisdiction of the Court.
Joint declaration of Judges Ranjeva, Shi, Koroma and Parra-Aranguren
In their joint declaration, Judges Ranjeva, Shi, Koroma and Parra-Aranguren conclude that
the present Judgment lacks validity and consistency, and is even contra legem.
The authors of the joint declaration observe th at one crucial question which the Court had to
determine in this phase of the proceedings is whether the Respondent, Serbia, had access to the
Court at the time of the filing of the Application on 2 July 1999, a question which they note is both
pre-preliminary to the issue of jurisdiction and also fundamental. They emphasize that under the
Court’s Statute, a State must have access to the Court in order to participate in a contentious case.
The judges note that in the Legality of Use of Force cases, the Court concluded that when
Serbia and Montenegro filed its Application on 29 April 1999, it was not a Member of the United - 2 -
Nations and thus lacked access to the Court under Article35, paragraph1, of the Statute.
Consequently, they reason that Serbia and Monten egro must also have lacked access to the Court
when Croatia filed its Application in the presen t case on 2July1999. They point out that the
Court’s other judgments dealing with parallel proceedings support and do not contradict this view.
These findings notwithstanding, the authors of the jo int declaration note that the Court has held in
the present Judgment that it is entitled to exerci se jurisdiction in the present case through reliance
on the Mavrommatis Palestine Concessions case, where the Permanent Court of International
Justice held that “[e]ven if the grounds on whic h the institution of proceedings was based were
defective for the reason stated, this would not be an adequate reason for the dismissal of the
applicant’s suit” ( Judgment No.2, 1924, P.C.I.J. SeriesA, No.2 , p.34), because “[t]he Court,
whose jurisdiction is international, is not bound to attach to matters of form the same degree of
importance which they might possess in municipal law” (ibid.).
The authors of the joint declaration are cr itical of the Court’s misapplication of the
Mavrommatis dicta for the following reasons. First, th ey argue that the present case does not fall
under the Mavrommatis dictum because the Mavrommatis case did not concern access to the Court.
Second, that the issue in the present case is not “procedural”, as it was in Mavrommatis
(concerning what a party has filed or could file), but is decidedly preliminary and fundamental
(concerning the status of that party under the Char ter of the United Nations and the Statute of the
Court). In their view, a party can correct a procedural error, but cannot simply change a
fundamental characteristic of the opposing party’ s legal status. Third, they explain that
Mavrommatis and all of its progeny dealt with very shor t-lived defects, unlike the situation in the
present case. Fourth, they note that the Mavrommatis approach has been applied where it has been
the Applicant or both parties, but not the Res pondent alone, which failed to fulfil one of the
conditions necessary for the Court to find jurisdiction at the date the proceedings were instituted.
Accordingly, they argue that reliance on the Mavrommatis case is inappropriate and that the
Court must determine for itself whether the parties had access to it at the relevant time, proceeding
from the fundamental premise that such a determin ation is to be made at the time of Croatia’s
Application. The authors of the joint declaration note that although the Court first accepts that
jurisdiction must be assessed as of the date of th e filing of the act instituting proceedings, it later
contradicts itself, proposing that jurisdictional re quirements may be fulfilled by the time the Court
considers its jurisdiction or at the time of the Applicant’s submission of its Memorial. The authors
of the joint declaration emphasize that the Court’ s jurisprudence does not support either of these
alternative approaches.
The judges joining the declaration also expr ess concern that the approach of the Court
ignores the equality between the Applicant and the Respondent in terms of their access to the
Court, which they point out is one of the fundamental principles of international justice.
They also note that the Court’s position contradicts even the factual situation as presented by
the Applicant itself, which in a letter dated 27 May 1999 stated that Serbia and Montenegro lacked
access to the Court. In light of the foregoing, they conclude that for the Court now to decide that it
has jurisdiction in this case is not only contra legem but also contrary to the factual situation
presented by the Applicant.
The authors of the joint declaration are also critical of the Court’s reasoning with regard to
the consistency of its judgments. They note that on at least three occasions, the Court reiterates in
respect of decisions taken in previous proceedings (not involving exactly the same parties) that,
while such decisions are not res judicata under Article59 of the Statute of the Court, the Court
“will not depart from its settled jurisprudence unl ess it finds very particular reasons to do so”
(para.53; see also paras.54 and 76). The Cour t then justifies its current position, which is
contrary to that taken in the 2004 proceedings, by reasoning that the Applicant in 2004 did not raise
the issue while the Applicant in this case did. The authors of the joint declaration find this
unconvincing, emphasizing that access is not a condition which may be satisfied merely upon - 3 -
request by the Applicant, but rather is a fundament al characteristic that arises out of a party’s
status, and that if Serbia lacked access to the Court in 2004, Croatia absolutely cannot provide it
with access in the present case simply by making a request to the Court to that effect.
Judges Ranjeva, Shi, Koroma and Parra-Ara nguren conclude, therefore, that since the
Respondent in the present case did not fulfil the conditions required to
gain access to the Court at
the time when the Applicant instituted proceedings in 1999, the Court cannot exercise a jurisdiction
to which it is not entitled.
Dissenting opinion of Judge Ranjeva
The judicial nature of the jurisdictional function of the International Court of Justice explains
JudgeRanjeva’s difficulty in accepting the continui ty of solution in th e present case, when the
majority of the Court has relied on solution of jurisprudential continuity. The present Judgment
calls into question the ironclad rule of jurisdiction ⎯ the basis of jurisdiction is consensual ⎯
when it relies on the “Mavrommatis jurisprudence”.
From the historical perspective, the Mavrommatis decision was based on one of the cardinal
principles of the Versailles Peace Treaty: in respect of jurisdiction ratione personae, it was difficult
to grant the defeated States (Germany and the Central Powers) rights equal to those of the victor
States: the Permanent Court of International Jus tice might thus have had characteristics of a court
of quasi-statutory jurisdiction. If the Court had de liberately based its solution on the prospect of a
crisis under ChapterVII, it would not have b een unreasonable to uphold the Court’s jurisdiction
ratione personae.
There is no direct basis for the difference in treatment between an applicant and a
respondent, because it ultimately jeopardizes equality of access as between them. In a system of
statutorily conferred jurisdiction, which is not that of the International Court of Justice, all potential
litigants must be given the assurance that there is a court to which they can turn to resolve their
disputes, and that they can do so without having to rely on consent. By contrast, in a judicial order
founded on consensual jurisdiction, there is no need for a counterpart to Article 35 in respect of the
respondent. Once the requirements applicable to the applicant have been met, it is for the
participants to establish, by judicial means, the respondent’s consent to jurisdiction.
In the present case, the main difficulty concerned the shift from the continuity of the
international personality of the SFRY and Serbia to State succession as found by the Court. In
contradistinction to the theoretical approach to succession adopted in th e Judgment, the problem
was confined to considering the question of succession to ArticleIX of the Convention on the
Prevention and Punishment of the Crime of Ge nocide in the relationship between Croatia and
Serbia. The 16February1994 letter from Croa tia’s Permanent Representative to the United
Nations, which has received no attention in the J udgment, was an objection to the FRY’s claim in
its declaration of 27 April 1992 to continuity of personality, and careful consideration should have
been given to its significance in regard to Article IX.
It can be seen from an analysis of Croatia’s objection that there are various aspects to this
document: a rejection of continuity of the pers onality of the SFRY, acceptance of continuity of
treaty obligations and the serving of notice on the FRY to respond to Croatia’s offers. In other
words, Croatia considers its letter to be effective in the terms it defined, while the rejection of
continuity of international personality calls into question the entire organic, institutional dimension
in regard to the United Nations. This is the framework governing the fate of ArticleIX, a clause
which is severable from the system of obliga tions under the Convention on the Prevention and
Punishment of the Crime of Genocide. The dis tinction drawn by Croatia between continuity of
treaty obligations and discontinuity of internati onal personality as between the SFRY and Serbia is
not questionable pro ratione temporis . Thus, there was reason to ascertain whether there was - 4 -
consent to jurisdiction, which did not need to be argued in Application of the Convention on the
Prevention and Punishment of the Crim e of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro) and which could be deduced from a simple, logical judicial finding.
Finally, it was not appropriate to apply the Mavrommatis jurisprudence. The present case
was initiated by unilateral application, not special agreement; further, in the cited jurisprudence the
applicant had sole control over the action needed to cure the defect. Also, the conditions laid down
by the Mavrommatis Judgment are not satisfied. This however is a preliminary legal issue.
At all events, had there been a decision findi ng against jurisdiction, which JudgeRanjeva
would have greeted with a sense of relief, given the nature of the International Court of Justice, that
would not have exempted Serbia from the obligation to answer under international law for
violations of the Convention on the Prevention and Punishment of the Crime of Genocide.
Dissenting opinion of Judge Owada
In his dissenting opinion, Judge Owada concludes that the Court is not competent to
entertain the present case submitted by the Republic of Croatia, since the Respondent, the Republic
of Serbia, lacked the capacity to participate in the proceedings at the time when the Applicant filed
an Application to institute proceedings against it.
Judge Owada first explains the legal significance for the present case o
f the 2004 Judgments
in the cases concerning Legality of Use of Force and the 2007 Judgment in the case concerning the
Application of the Convention on the Preventi on and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro ). In particular, he emphasizes that the
2007 case was bound by a prior express finding on jurisdiction, i.e., the 1996 Judgment in that case,
whereas the 2004 Judgments were not. He emphasizes that in the present case, like the 2004 cases,
it is clear that no such express finding constituting res judicata exists.
Judge Owada next examines the so-called “Mavrommatis principle” applied by the present
Judgment, characterized by the Applicant to mean that when four substantial elements (one: seisin;
two: basis of claim; three: consent to jurisdiction; four: access to the Court) are united at any
given time, the order in which this occurred is a pure matter of form and does not affect the Court’s
jurisdiction. Judge Owada proceeds to examine the eight cases in which the principle has been
referred to, either eo nomine or by implication. He concludes that:
(a) In spite of the generalized formula often quoted from the Judgment in the Mavrommatis
Palestine Concessions case, the Mavrommatis case was decided on a totally different basis, and
the present case does not present any legally analogous situation where the so-called
Mavrommatis principle may have a place of application.
(b) Each of the subsequent cases in which this principle has b een invoked are all related to the
issue of the initial absence of consent to jurisdiction which, alle gedly, had vitiated the basis of
jurisdiction of the Court but was cured by a subsequent act or event. There has been no case
that can justify the principle in its generalized formulation in which the Judgment is claimed to
extend to any and all flaws in procedure.
(c) Therationale for deviating from the strict application of procedural requirements is diverse in
each case and each of the cases where such devi ation is accepted by the Court has its own
specific rationale and its intrinsic limitations, but in all the cases, the basic problem related to
the original absence of consent as the vitiating factor for jurisdiction.
(d) There has been no case in the jurisprudence of the C ourt in which the so-called Mavrommatis
principle has been understood to cover any and all “procedural defects” in the proceedings - 5 -
before the Court. The “procedural defects” that have been at issue in those cases have mostly
been alleged technical flaws relating to the element of consent in one way or another at the time
of the institution of proceedings , and have never involved such issues as the capacity of the
parties to appear before the Court.
(e) In all the cases where the principle has been applied, wh at is involved is the issue of assessing
the subsequent coming into existence of the consensual nexus of jurisdiction as sufficient for
the purpose of constituting the essential condition for the exercise of jurisdiction by the Court.
Judge Owada concludes from his review of the Mavrommatis jurisprudence that flexibility
with regard to jurisdictional consent has never b een extended to the issue of access to the Court
which lies beyond the consent of the parties, and it should not be so extended in the present
Judgment.
Finally, Judge Owada addresses the question of whether the fact that the FRY/Serbia is the
Respondent in the present case whereas it was the Applicant in the 2004 NATO cases should make
a legal difference in the context of the present case. He concludes that it should not, noting that a
contrary conclusion would result in unequal treatment of the applicant and the respondent before
the Court.
Separate opinion of Judge Tomka
1. Judge Tomka has voted for all but one of the findings of the Court. He felt obliged to vote
against paragraph146(4) of the Judgment, wh ere the Court found that the second preliminary
objection of Serbia, contending that the claims of Croatia based on acts and omissions which took
place prior to 27 April 1992 are beyond the jurisdiction of the Court and inadmissible, “does not, in
the circumstances of the case, possess an exclusively preliminary character”.
2. Judge Tomka first examines the arguments of the Parties on this question. Serbia
contends that as the acts occurred before the Fe deral Republic of Yugoslavia (FRY), the State
whose international legal personality it now continues, came into existence as a State, and thus
could have become a Contracting Party to the Ge nocide Convention, are beyond the jurisdiction of
the Court and inadmissible. Croatia relies on the Court’s 1996 Judgment in the Bosnia and
Herzegovina v. Yugoslavia case, where the Court found that it had jurisdiction over all “relevant
facts which have occurred since the beginning of the conflict which took place in Bosnia and
Herzegovina”. That conflict started in spring 1992, whilst the one in Croatia had already begun in
summer 1991.
3. Judge Tomka continues by commenting on certain issues dealt with in the 1996 Judgment
and their relevance to the present case. He concurs with the Court’s view on the circumstances
which distinguish the present case from its 1996 Judgme nt. He agrees with the Court that in the
present case consequences are to be drawn from th e fact that the FRY only became a State and a
party to the Genocide Convention on 27 April 1992. He then adds that no party raised the issue of
the FRY being a party to the Genocide Convention in 1996; nor did the Court take any position
with respect to the exact date on which it became a party. JudgeTomka notes that in 1996, the
Court limited itself to the conclusion that the FRY was bound by the Convention on
20March1993, the date the Application was file d. He notes that the Court recalled the FRY’s
statement on 27April1992 where it claimed to continue the international legal personality of the
SFRY and pledged to “strictly abide by all the comm itments” of that State, and its conclusion that
the FRY’s intention was to remain bound by the SFRY’s international obligations. - 6 -
4. According to Judge Tomka, the Court’s c onclusion, that “the question of the temporal
scope of its jurisdiction is closely bound up with these questions of attribution, presented by Serbia
as a matter of admissibility rather than of jurisdictio n, and thus has to be examined in the light of
these issues” (Judgment, para.124), is question-begging. He considers that the Court only
summarily addresses the issue of the attribution of acts that occurred prior to 27April1992 in its
Judgment and that, in so doing, the Court also postpones its decision on the objection to its
jurisdiction perceived by it as being of a ratione temporis character.
5. Judge Tomka continues by recalling Croatia ’s argument, that the FRY was a successor
and not the continuing State of the SFRY, and that Serbia is therefore a “party by succession to the
Genocide Convention from the beginning of its exis tence as a State”. He notes that the Court
concurred with Croatia’s submission on this point (Judgment, para.117), and determined
accordingly that on 27 April 1992, the FRY became a party to the Genocide Convention.
6. Judge Tomka emphasizes that there is no doubt that the Genocide Convention was binding
on the SFRY from 12January1951, when it entered into force, and that it was continuously
applicable in respect of its entire territory. He stresses that there was not a single day during the
conflict, which started in 1991 and ended in 19 95, when the Convention would not have been
applicable in that territory. He explains that this is so because so long as the SFRY continued to
exist, it remained party to the Convention and, as its constituent republics gradually seceded, they
became parties on the basis of succession with effect from the date when they assumed
responsibility for their international relations. Th ere was consequently no hiatus or gap in the
protection afforded by the Convention during the ar med conflict, although it was to be applied by
different States at different periods during the process of the SFRY’s dissolution.
7. Judge Tomka considers that the issue before the Court is not the retroactive application of
the Convention, but rather, the interpretation of the compromissory clause contained in Article IX
of the Convention and the determination of the Co urt’s jurisdiction thereby conferred. On this
point, he begins by recalling the arguments of Croatia, which relied upon ArticleIX of the
Convention. Judge Tomka considers that in order to fall within the ambit of ArticleIX of the
Convention, the dispute must be about the interp retation or application of the Convention by the
Contracting Parties to it, not by the predecessor State of a Contracting Party to it, nor about its
application by an entity which was not the State party to the Convention and only subsequently
came into being as a State and became a party to it.
8. Judge Tomka recalls Article4 of the International Law Commission’s Articles on the
Responsibility of States for Internationally Wrongful Acts, which provides that the conduct of an
organ of a territorial unit of the State is consider ed as an act of that State and thus engages the
international responsibility thereof. He explains th at when that St ate ceases to exist, the issue of
succession to responsibility may arise; similarly, when a territorial unit of a predecessor State
secedes and becomes an independent State, the issu e of the responsibility of the separate State for
acts which were committed by the organs of that entity before it established itself as a State may
arise. However, he considers that with regard to these two issues, neither of them falls within the
jurisdiction of the Court under Article IX of the Genocide Convention.
9. Judge Tomka concludes that the question of consequences to be drawn from the fact that
the FRY became a State and a party to the Ge nocide Convention on 27April1992 is a legal
question which should be decided at this stage in the proceedings and for the answering of which
there is no need of any further information. He emphasizes that the considerable length of the
proceedings and the Court’s repeated handling of i ssues relating to the legal status of the FRY and - 7 -
its participation in the Genocide Convention enta il that all necessary information has been put
before it.
10. As a further concluding point, Judge Tomka highlights that his observations are based on
the fact that the FRY (now Serbia) is a successor State and not the continuing State of the SFRY.
According to him, this conclusion on the scope of the Court’s jurisdiction does not amount to the
exclusion of responsibility of those who committe d so many serious atrocities during the armed
conflict in the territory of Croatia; nor does it prevent the responsibility of the State to which the
acts of the perpetrators of such atrocities may be attributed. As there is a fundamental distinction
between the acceptance by States of the Court’s jurisdiction and the conformity of their acts with
international law, he emphasizes that States remain responsible for acts attributable to them which
are contrary to international law although such acts may have been committed during the period
over which the jurisdiction of the Court does not extend. As a final observation, he adds that whilst
a number of persons were indicted by the Prosecuto r of the International Criminal Tribunal for the
former Yugoslavia for atrocities committed in Croati a, none of them have been charged with the
crime of genocide, and in the light of this, w onders how Croatia will establish before the Court,
whose procedure is not a criminal one, that the cr ime of genocide has been perpetrated. However,
he considers that this issue is for the merits.
Separate opinion of Judge Abraham
Judge Abraham expresses his agreement with the operative part of the Judgment and with
the reasoning by which the Court has rejected Serbia’s objection of lack of jurisdiction based on the
fact that Serbia was not a party to the Genocide Convention, including ArticleIX thereof, on the
date when the Application was filed.
However, Judge Abraham dissociates him self from the reasoning by which the Judgment
rejects the Respondent’s argument that it did not possess, on the date when the Application was
filed, the capacity to have “access to the Court” pursuant to Article 35 of the Statute.
He takes the view that the lengthy passages devot ed to this question in the Judgment, with a
view to showing that the Respondent meets th e condition of having “access to the Court” for the
purposes of this case because of its admission to the United Nations on 1 November 2000, were in
fact unnecessary, since the requirements of Article 35 of the Statute do not apply to the respondent
in a case, but only to the party that is instituting the proceedings.
This interpretation is based on the te xt of Article35, analysis of the travaux préparatoires,
the previous practice of the Court and, above a ll, on reasoning derived from the logic and purpose
of the text. In particular, to interpret Artic le35, as the Judgment appears to do, as applying
uniformly to the Applicant and the Respondent, results in the creation of inequality between two
States that are both parties to a Convention whic h includes a compromissory clause, when one of
them is a party to the Statute of the Court and the other is not, to the benefit of the latter: the
second State could use the compromissory clause at any time by bringing proceedings before the
Court and depositing for that purpose the declaration provided for by resolution9 (1946) of the
Security Council, whereas the first State could not implement the same clause of its own volition,
since its opponent could simply refuse to deposit the declaration in order to place itself outside the
jurisdiction of the Court.
In addition, Judge Abraham expresses his disag reement with the way in which the Court has
applied the Mavrommatis case law here. While he acknowledges that it is possible in principle to
take the view that lack of access to the Court on the date when proceedings are instituted ⎯ by a
party to which that condition applies ⎯ can be remedied during the proceedings where the
necessary requirement is met before the Court rules on its jurisdiction, this is with the proviso that - 8 -
at that latter date it should be established that the applicant could, if it so wished, file a new
application identical with the previous one in te rms of substance which could not meet with any
objection regarding the jurisdiction of the Court. What lies behind the Mavrommatis case law is a
desire for procedural economy. In this instance, that should have led the Court to adjudicate on the
effects of the reservation made by Serbia in 2001 to Article IX of the Genocide Convention and to
find it invalid, which the Court has declined to do. By arguing as it has done, and by contenting
itself with the fact that the condition of “acc ess” was met on 1November2000, on which date
Serbia was certainly still bound by ArticleIX of the Genocide Convention, the Court does more
than make a reasonable exception to the principle that its jurisdiction must be determined as of the
date when the application is filed; it abrogates that principle outright, whilst claiming to uphold it.
Declaration of Judge Bennouna
Judge Bennouna voted in favour of the Court’s jurisdiction to entertain Croatia’s Application
on the merits, in so far as the Federal Republic of Yugoslavia (FRY) has been bound by the
Genocide Convention since 1992 and became a Member of the United Nations and a party to the
Statute of the Court (as Serbia and Montenegro ) on 1November2000, even though that occurred
after Croatia had instituted the proceedings on 2 July 1999.
The Court, relying on its jurisprudence to arri ve at this conclusion, should have pursued its
argument further and examined Serbia’s accessi on to the Genocide Convention of 6March2001,
with a reservation to Article IX, which attributes jurisdiction to the Court. By doing so, the Court
would have found that Serbia could not accede to a treaty to which it had already been a party since
1992 and that, as a result, no account should be taken of that accession, nor above all of the
reservation that accompanied it. In Judge Bennouna’s view, the Court would thus have
strengthened the reasoning of the Judgment, whic h as it is remains incomplete and therefore
unsatisfactory.
Dissenting opinion of Judge Skotnikov
In the view of Judge Skotnikov, the Court s hould have upheld the first preliminary objection
submitted by Serbia in so far as it related to the ca pacity of the Respondent to participate in the
proceedings instituted by Croatia. He is critical of the Court’s decision to depart from the general
rule that the jurisdiction of the Court must be assessed on the date of the institution of the
proceedings. He disagrees with the Court’s conclusion that Serbia’s lack of jus standi at the time of
the institution of the proceedings by Croatia has been cured by its subsequent admission to the
United Nations. JudgeSkotnikov notes that the Mavrommatis exception to the above-mentioned
general rule, relied upon by the Court, deals excl usively with defects related to consent of the
parties. The right of a party to appear before th e Court is not a matter of consent and, accordingly,
the absence of that right is not a defect capable of being cured by applying the Mavrommatis
jurisprudence.
Judge Skotnikov agrees with the Court’s conclu sion that Serbia was party to the Genocide
Convention at the time of filing of the Applica tion. However, this Convention, as the Court
established in its Legality of Use of Force Judgments, is not a treaty in force in the sense of
Article 35, paragraph 2, of the Statute of the Court. Therefore it is not capable of giving access to
the Court to a party which is not a Member of th e United Nations at the time the proceedings are
instituted.
The majority has also, in his opinion, erred in leaving open until the merits stage the question
raised by Serbia in its second preliminary objection as to whether the Court has jurisdiction to
examine facts or events which occurred prior to 27April1992 (the date on which the FRY came
into existence). Judge Skotnikov notes that Serbia further contended that, even if there is - 9 -
jurisdiction, it cannot be exercised in respect of th e events which occurred prior to that date. This
contention represents an objection to admissibility of Croatia’s claims. Judge Skotnikov points out
that the admissibility question raised by Serbia can become relevant only if the Court has
jurisdiction to examine these facts. The question of jurisdiction must be answered by the Court
first. Only if the answer is in the affirmative can the Court, in the exercise of its jurisdiction,
decide whether it can address the events occurring before the FRY came into existence, including
questions related to attribution of responsibility.
The Court explains its reluctance to tackle th e issue of jurisdiction as a preliminary one by
stating that “in order to be in a position to ma ke any finding on each of these issues [jurisdiction
and admissibility], the Court will need to have more elements before it” without, however,
indicating what element is lacking in respect of the issue of jurisdiction. The Court’s insistence
that the issues of jurisdiction and admissibility (the second issue, according to the Court, involves
questions of attribution to the Respondent of the facts in the period preceding 27April1992) are
“inseparable” suggests that the i ssue of attribution of responsibility could be considered together
with the issue of jurisdiction and influence the Court’s decision on the latter. But responsibility
under the general rules of State responsibility, even if established, cannot mutate into the
jurisdiction of the Court, which, unlike State responsibility, is based on consent.
The Court has found that the respondent State acquired the status of party to the Genocide
Convention, by a process that is to be regard ed as succession, on 27 April 1992, the date on which
it came into existence. It follo ws that the Court cannot have jurisdiction to examine any facts or
events which occurred prior to that date.
Separate opinion of Judge ad hoc Vukas
The Applicant, the Republic of Croatia, beca me a Member of the United Nations (UN), and
thus party to the Statute of the International Court of Justice, on 22May1992. The Respondent,
the Republic of Serbia, decided on 27April1992, together with the Republic of Montenegro, to
establish the “Federal Republic of Yugoslavia” (FRY ). This new State, composed of two former
Republics of the Socialist Federa l Republic of Yugoslavia (SFRY), sought to continue the
international personality of Yugoslavia and its membership in the UN. The United Nations was not
pleased with this decision. The FRY was thus not allowed to participate in the General Assembly,
but it was considered to be a member of the UN, and therefore a party to the Statute of the Court.
The SFRY was a party to the Convention on the Prevention and Punishment of the Crime of
Genocide (Genocide Convention) from its entry into force on 12January1951. After the
dissolution of the SFRY, Croatia and the FRY expressed in 1992 their decision to succeed the
SFRY as parties to the Genocide Convention (without any reservation to its provisions).
Taking into account the above-mentioned facts, it is clear that Croatia was entitled to
institute the proceedings against the FRY on 2Ju ly 1999. Croatia’s Application does not only
concern the acts and omissions which took place after the establishment of the FRY on
27April1992 and there are several reasons for this . First of all, both Cr oatia and Serbia were
under the obligation to prevent and punish the crim e of genocide as federal units of the SFRY — a
party to the Genocide Convention. Moreover, the provisions of that Convention have for a long
time formed a part of general customary international law of a peremptory nature. Finally, many of
the acts of genocide in respect of which Croatia instituted the proceedings were initiated as of
1991, but the suffering of the victims continued in the following years. - 10 -
Dissenting opinion of Judge ad hoc Kreća
In the opinion of Judge Kreća the relevant conditions for the jurisdiction of the Court in the
present case are not met.
On the date of institution of the proceedi ngs, the Respondent was not a Member of the
United Nations as determinative of its jus standi in the circumstances surrounding the case. The
so-called Mavrommatis principle, based on consid erations of judicial ec onomy, is substantially
incapable of redressing the lack of jus standi of the Respondent as a mandatory requirement of a
constitutional nature.
As regards the basis of jurisdiction, Judge Kreća finds that in the relevant point of time the
Genocide Convention was not applicable between the Parties. Following its admission to the
United Nations on 1 November 2000, the Respondent, acting upon a reminder of the
Secretary-General as depositary of multilateral tr eaties, expressed its consent to be bound by the
Convention on 6 March 2001. The 1992 declarati on, perceived by the Court in closely related
cases as a basis for considering the Respondent a Contracting Party to the Genocide Convention, is,
according to Judge Kreća, for a number of reasons incapable of producing such effects.
Judrgee ća cannot concur with the finding of the majority relating to the scope of the
jurisdiction of the Court ratione temporis. He finds that only a State in existence, bound by an
international obligation, may commit, or may be attributed to, an internationally wrongful act that
entails international responsibility. The legal existence of the Respondent as a new international
legal person different from its hy brid and controversial position during the period 1992 to 2000,
started in November 2000 by its admission to membership in the United Nations.
Regarding all three issues included in the obj ection relating to the submission of certain
persons to trial, provision of information on missing citizens and return of cultural property,
Judge Kreća is of the opinion that the particular dispute does not fall within the ambit of Article IX
of the Genocide Convention.
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Summary of the Judgment of 18 November 2008