Summary of the Judgment of 11 July 1996

Summaries of Judgments, AdNot an official documentrs of the Internationa
l Court of Justice

CASE CONCERNING APPLICATION OF THE CONVENTION ON THE PRE-
VENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (BOSNIA AND
HERZEGOVINA v. YUGOSLAVIA) (PRELIMINARY OBJECTIONS)

Judgment of11July 1996

In a Judgment issued in the case concerningApplication Weeramantry, Ranjeva, Herczegh, Shi, Koroma,
ofthe Conventiononthe Preventionand Punishmentofthe Vereshchetin, Ferrari Bravo, Parra-Aranguren;
Crimeof Genocide(Bosniaand Heaegovina v.Yugoslavia), Judge ad hoc Lauterpacht;

the Court rejected the preliminary objections raised by AGAINSTJ:udge ad hoc Kreca;
Yugoslavia. In addition, the Court found that the Applica- (2) (a) by thirteen votes to two,
tion filed by Bosniaand Herzegovina was admissible. Finds that, onthebasis of article IXofthe Convention
onthe Preventionand Punishment ofthe CrimeofGeno-
cide, it hasjurisdiction to adjudicate upon the dispute;
IN FAVOUR: President Bedjaoui; Vice-President
Schwebel; Judges Guillaume, Shahabuddeen,
Thefull textof the operativeparagraph readsas follows: Weeramantry, Ranjeva, Herczegh, Shi, Koroma,
"THE COURT, Vereshchetin, Ferrari Bravo, Parra-Aranguren;
(1) Having taken note of the withdrawal of the Judge ad hoc Lauterpacht;
fourth preliminary objection raised by the Federal Re- AGAINSTJ:udge Oda; Judge ad hoc KreEa;
public of Yugoslavia,
(b) By fourteen votesto one,
Rejects Dismissesthe additional bases ofjurisdiction invoked
(a) by fourteen votes to one, by the Republic of Bosnia and Herzegovina;
the first, second and third preliminary objections; IN FAVOUR: President Bedjaoui; Vice-President
IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen,
Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koroma,
Weeramantry, Ranjeva, Herczegh, Shi, Koroma, . Vereshchetin, Ferrari Bravo, Parra-Aranguren;
Vereshchetin, Ferrari Bravo, Parra-Aranguren; Judge ad hoc Kreia;
Judge ad hoc Lauterpacht; AGAINSTJ:udge ad hoc Lauterpacht;
AGAINSTJ:udge ad hoc Kre6a; (3) Bythirteen votes to two,

(b) by eleven votes to four, Finds that the Application filed by the Republic of
the fifth preliminary objection; Bosnia and Herzegovina on 20 March 1993 is admis-
IN FAVOUR: President Bedjaoui; Vice-President sible.
Schwebel; Judges Guillaume, Shahabuddeen, IN FAVOUR: President Bedjaoui; Vice-President
Weeramantry,Ranjeva,Herczegh,Koroma,Ferrari Bravo, Schwebel; Judges Guillaume, Shahabuddeen,
Parra-Aranguren; Judge ad hoc Lauterpacht; Weeramantry, Ranjeva, Herczegh, Shi, Koroma,
AGAINSTJ:udgesOda, Shi,Vereshchetin;Judge ad hoc Vereshchetin, Ferrari Bravo, Parra-Aranguren;
Kreia; Judge ad hoc Lauterpacht;
(c) by fourteen votes to one, AGAINSTJ:udge Oda; Judge ad hoc KreEa."
the sixth and seventh preliminary objections;

IN FAVOUR: President Bedjaoui; Vice-President
Schwebel; Judges Oda, Guillaume, Shahabuddeen,

Continued on npage The Court was composedas follows: President Bedjaoui; on the Protection of Minorities, signed at Saint-Germain-
Vice-President Schwebel; Judges Oda, Guillaume, en-Laye on 10 September 1919, and on customary and
Shahiabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, conventional internationallaws of war and international
Koroma, Vereshchetin, Ferrari Bravo, Parra-Aranguren; humanitarian law. On 10 August 1993, Yugoslavia also
Judgesad hocLauterpacht,ISreCa;RegistrarVabncia-Ospina. submitted a request for the indication of provisional meas-
ures; and, on 10 August and 23 August 1993, it filed
* written observations on Bosnia and Herzegovina's new
request, as amended or supplemented. By an Order dated
* * 13 September 1993, the Court, after hearing the Parties,
JudgeOda appendeda declarationto the Jud;gmentof the reaffirmed the measures indicated in its Order of 8 April
Court; Judges Shi and Verf:shchetinappended 2,joint decla- 1993and declared that those measures should be immedi-
ately and effectively implemented.
ration totheJudgmentofthe:Court; JudgeadhocLauterpacht
appended a declaration to .theJudgment of the Court. Within the extended time-limit of 30 June 1995 for the
JudgesShahabuddeen,Weeramantryand Parra-Aranguren filing of the Counter-Memorial, Yugoslaviaraised prelimi-
appended separate opinions to the Judgment of the Court. nary objections concerning, respectively, the admissibility
~~d~~adhoc K~~ aEp~ended a dissenting to the of the Application and the jurisdiction of the Court to
Judgment of the Court. entertain the case. (In view of its length, the text of the
preliminary objections has not been reproduced in this
* summary.)
By a letter dated 2 February 1996,the Agent of Yugo-
* * slavia submitted to the Court, "as a document relevant to
the case", the text of the General Framework Agreement
Institution ofproceedingsand history of the case for Peace in Bosnia and Herzegovina and the annexes
(paras. 115) thereto (collectively "the peace agreement"), initialled in

The Court begins byrecallingthat on 20 March 1993the Daytl4,Decembern 21 Nove(hereinafter called the Paris
Republic of Bosnia and I-Ierzegovina(hereinafter called Paris Agreement").
"Bosnia and Herzegovina") institutedproceedings against
the Federal Republic of Yugoslavia (hereinafter called Public hearings on the preliminary objections raised by
"Yugoslavia") in respect ,ofa dispute concerning alleged Yugoslavia were held between 29 April and 3 May 1996.
violationsof the Convention onthe Prevention and Punish-
ment of the Crime of Genocide (hereinafter called "the Jitrisdiction ratione personae
Genocide Convention"), adoptedbythe Gener.31Assembly (paras. 16-26)
ofthe United Nations on 9 December 1948,as well as vari-
ous matters which Bosnia and Herzegovinaclaims are con- Recalling that Bosnia and Herzegovina has principally
netted therewith. TheApplication invoked artisle IXof the relied, as a basis for the jurisdiction of the Court in this
Genocide Convention as the basis of thejurisdiction of the case, on article IX of the Genocide Convention, the Court
Court. initially considers the preliminary objections raised by
oI1 20 ~~~~h 1993, immediately after the filing of its Yugoslavia on this point. It takes note of the withdrawal
Appllication,Bosnia and H[erzegovinasubmitted a request by Yugoslavia of its fourth preliminary objection, which
for the indication ofprovisional measuresunder Article therefore need no longer be dealt with. In its third objec-
of the Statute. On 31March 1993,the Agent of Bosnia and tion, Yugoslavia, onvariousgrounds, has disputedthe con-
~ ~ ~ ~ : ~fi~ le~in~ tihe~~~~ ~ i ~n~oki,g it as an addi- tention that the Convention binds the two Parties or that it
tionalbasis of the jurisdictioof thecourt in.:hecase,the has entered into force between them; and in its fifth objec-
text of a letter dated 8 Jurle 1992, addresse110the Presi- tion, Yugoslavia has objected, for various to the
dent of the Arbitration ~ ~ ~ ~ i ~o~ f ti~ I~nternational argument that the dispute submittedby Bosnia and Herze-
con:rerence for peace in ~!~~~~l~b~ yithe id^^^^ of govina falls within the provisions of article IX of the Con-
the Republics of Montenegroand Serbia. On 1April 1993, vention.
Yugoslavia submitted written observations on Bosnia and The proceedings instituted beforethe Court are between
Herzegovina's request for provisional measurt:s,in which, two States whose territories are located within the former
in turn, it recommended th.eCourt to order the:application Socialist Federal Republic of Yugoslavia. At the time of
the proclamation of the Federal Republic of Yugoslavia,
of provisional measuresto Bosnia andHerzegovina. By an on 27 April 1992, a formal declarationwas adopted on its
Order dated 8 April 1993,the Court, after hearing the Par-
ties, indicated certainprovisional measures with aview to behalf which expressed the intention of Yugoslavia to
the protection of rights under the Genocide Convention. remain bound by the international treaties to which the
O:n27 July 1993, Bosnia and Herzegovina submitted a former Yugoslavia was Party. The Court observes, further-
new request for the indication of provisionsll measures; more, that it has not been contested that Yugoslavia was
and, by a series of subsecluentcommunications, it stated party to the Cknocide Convention. Thus, Yugoslavia was
that itwas amending or supplementingthat request, as well b~und by the provisions of the Convention on the date of
as, i.nsome cases, the Application, including the basisof the filing of the Application in the present case, namely,
jurisdiction relied on therein. By letters of 6 August and On 20 March 1993.
I0 August 1993, the Agent of Bosnia and Herzegovina For its part, on 29 December 1992, Bosnia and Herze-
indicated that his Government was relying, a.sadditional govina transmitted to the Secretary-General ofthe United
bases of the jurisdiction0.fthe Court in the case, on, re- Nations,as depositaryof the Genocide Convention,a notice
spectively, the Treaty between the Allied and Associated of succession. Yugoslavia has contested the validity and
Powers andthe Kingdomofthe Serbs,Croats and Slovenes legal effect of that notice, as, in its view, Bosnia and

105 Herzegovina was not qualified to become a party to the ".Disputes between the Contracting Parties relating to
Convention. the:interpretation, application or fulfilment of the pres-
The Court notes that Bosnia and Herzegovina became a ent Convention, including those relating to the respon-
Member of the United Nations following the decisions sibility of aStatefor genocide or foranyofthe otheracts
adopted on 22 May 1992 by the Security Council and the enumerated in article 111,shall be submitted to the Inter-
General Assembly, bodies competent under the Charter. national Court of Justice at the request of any of the
Article XI of the Genocide Convention opens it to "any parties to the dispute."
Member of the United Nations"; from thetime of its admis- It isjurisdictionratione materiae, as so defined, to which
sion to the Organization, Bosnia and Herzegovina could Yugoslavia's fifth objection relates.

thus become a party to the Convention. It is of the view The Court notes that there persists between the Parties
that the circumstances of Bosnia and Herzegovina's acces- before it
sion to independence, which Yugoslavia refers to in its
third preliminary objection, are of little consequence. "a situation in which the two sides hold clearly opposite
It is clear from the foregoing that Bosnia and Herze- views concerning the question of the performance or
govina could becomeaparty to the Conventionthrough the non-performance of certain treaty obligations" (Inter-
mechanism of State succession. The Parties to the dispute pretation ofPeace TreatieswithBulgaria, Hungaryand
differed, however, astothe legal consequencesto be drawn Romania, First Phase, Advisory OpinionI,.C.J.Reports
from the occurrence of a State succession in the present 1950,p. 74)
case. and that, by reason of the rejection by Yugoslavia of the
complaints formulated against it by Bosnia and Herze-
TheCourtdoesnotconsideritnecessary,inordertodecide govina, there is a legal dispute.
on itsjurisdiction in this case, to make a determination on
the legal issues concerning State succession in respect to To found its jurisdiction, the Court must, however, still
treaties which have been raised by the Parties. Whether ensure that the dispute in question does indeed fall within
Bosnia and Herzegovina automatically became party to the the provisions of article IX of the Genocide Convention.
Genocide Convention on the date of its accession to inde-
pendence on 6 March 1992,or whether it became a party Yugoslavia disputes this. It contests the existence in this
as a result-retroactive or not-of its notice of succession case of an "international dispute" within the meaning of
of 29 December 1992, at all events it was a party to it on the Convention, basing itself on two propositions: first,
the date of the filing of its Application on 20 March 1993. that the conflict occurring in certain parts of the Appli-
cant's territory was of a domestic nature, and Yugoslavia
Yugoslavia submitted that, even supposing that Bosnia was not party to it and did not exercise jurisdiction over
and Herzegovina had been bound by the Convention in that territory at the time in question; and second, that
March 1993, it could not, at that time, have entered into State responsibility, as referred to in the requestsof Bosnia
force between the Parties, because the two States did not and Herzegovina, was excluded from the scope of applica-
recognize one another and the conditions necessary to tion of article IX.
found the consensual basis ofthe Court's jurisdiction were
therefore lacking. The Court observes, however, that this With regard to Yugoslavia's first proposition, the Court
situation no longer obtains since the signature and the considers that, irrespective of the nature of the conflict
entryinto force, on 14December 1995,of the Dayton-Paris forming the background to the acts referred to in articlesI1
Agreement, article X of which stipulates that the Parties and 111of the Convention, the obligations of prevention
"recognize each other as sovereign independent States and punishment which are incumbent upon the States par-
within their international borders". And it takes note that, ties to the Convention remain identical. It furthernotesthat
even if it were to be assumedthatthe GenocideConvention it cannot, at this stage in the proceedings, settle the ques-
did not enter intoforce between the Parties until the signa- tion whether Yugoslavia took part-directly or indi-
ture of the Dayton-Paris Agreement, all the conditions are rectly--in the conflict at issue, which clearly belongs to
now fulfilled to found thejurisdiction of the Court ratione the merits. Lastly, as to the territorial problems linked to
personae. It adds that, indeed, thejurisdiction of the Court the application of the Convention, the Court is of the view
must normally be assessed on the date of the filing of the that it follows from the object and purpose of the Conven-
tion that the rights and obligations enshrined by the Con-
act instituting proceedings, but that the Court, like its vention are rights and obligations erga omnes.The Court
predecessor, the Permanent Court of International Justice, notes that the obligation each State thus has to prevent and
has always had recourse to the principle according to
which it should not penalize a defect in a procedural act to punish the crime of genocide is not territorially limited
which the applicant could easily remedy. by the Convention.
In the light of the foregoing, the Court considers that it Concerning the second proposition advanced by Yugo-
must reject Yugoslavia's third preliminary objection. slavia, regarding the type of State responsibility envisaged
in article IX of the Convention, the Court observes that

Jurisdictionratione materiae the reference in article IX to "the responsibility of a State
(paras. 27-33) for genocide or for any of the other acts enumerated in
article 111"does not exclude any form of State responsibil-
In order to determine whetherit hasjurisdiction to enter- ity. Nor is the responsibility of a State for acts of its organs
tain the case onthe basis of article IX ofthe Genocide Con- excluded by article IV of the Convention, which contem-
vention, it remains for the Court to verify whether there is plates the commission of anact of genocide by "rulers" or
a dispute between the Parties that falls within the scope of "public officials". In the light of the foregoing, the Court
that provision. Article IX of the Convention is worded as considers that it must reject the fifth preliminary objection
follows: of Yugoslavia.Jurisdiction ratione temporis authorization was granted in violation of certain rules of
(para. 34) domestic law of fundamental significance. Yugoslavia
likewise contended that Mr. Izetbegovic was not even
In this regard, the Court confines itself to the obser- acting legally at that time as President of the Presidency.
vation that the Genocide Convention-and in particular
article IX-does not contain any clause theob:iector effect The Court observes that, according to international law,
of which is to limit in such manner the scope of its juris- there is no doubt that every Head of State is presumed to
dictionratione temporis, a.ndobserves that neither didthe be able to act on behalf of the State in its international
Parties themselves make any reservation tothat end, either relations andthat atthe time ofthe filing ofthe Application
to the Convention or on the occasion of the signature of Mr. Izetbegovic' was recognized, in particular by the
the Dayton-Paris Agreement. The Court thus finds that it United Nations, asthe Head of State of Bosnia and Herze-
has jurisdiction in this case to give effect to the Genocide govina. It therefore also rejected the second preliminary
Convention with regard to the relevant facts which have objection of Yugoslavia.
occurred since the beginnlingof the conflict which took

place in Bosnia and Herzegovina. As a result, the Court
considersthat it must reject Yugoslavia's sixth and seventh
preliminary objections.
The Court emphasizes, finally, that it does not consider
Additional basis of jurisdiction invoked by Bosnia and that Yugoslavia has, in presenting its objections, abused
Hl?rzegovina its rights to do so under Article 36, paragraph 6, of the
(pariis.35-41) Statute of the Court and Article 79 of the Rules of Court,
The Court finds further that it is unable to uphold as a and concludesthat having established itsjurisdiction under
article IX of the Genocide Convention, and having con-
basis for its jurisdictionin the present case a letter dated cluded that the Application is admissible, the Court may
8 June 1992 addressed to the President of the:Arbitration now proceed to consider the merits of the case on that
Com~missionof the International Conference for Peace in basis.
Yugoslavia byMr.Momir BulatoviE,PresidentoftheRepub-
lic of Montenegro, and Mr. SlobodanMilosevik, President Declaration ofJudge Oda
of the Republic of Serbia:;the Treaty between the Allied
and Associated Powers (thleUnited States of America, the Judge Oda,although conscious of some disquiet at being
British Empire, France, Italy and Japan) andthe Kingdom dissociated fromthe great majority of the Court, stated that
of the Serbs, Croats and Slovenes, which was signed at as a matter of legal conscience he felt bound to present his
Saint-Germain-en-Lay on 10September 1919and entered position that the Court should have dismissed the Applica-
into force on'16 July 1920; or any other of the additional tion. Judge Oda casta negative vote for the reason that the
bases ofjurisdiction invok:edby Bosnia and Herzegovina. Court lacksjurisdiction ratione materiae. In his view, Bos-
Nor does the Court find that Yugoslavia has given in this nia and Herzegovina, in its Application, did not give any
case a "voluntary and indisputable" consent which would indication of opposing views regarding the application or
confer upon the Court ajurisdiction exceeding that which interpretation of the Genocide Convention which may
it has already acknowledged to have been conferred upon have existed at the time of filing of the Application, which
it by article IX of the Genocide Convention. 11:sonlyjuris- alone could enable the Court to find that there is a dispute
diction to entertain the case is on the basis of article IX of with Yugoslavia under that Convention.
the Genocide Convention.
Judge Oda statesthat the Genocide Conventionis unique
Admissibility of theApplication in having been adopted by the General Assembly in 1948
(paras. 42-45) at a time when-owing to the success of the Nuremberg
Trial-the idea prevailed that an international criminal tri-
Accordingtothe first preliminary objectionofYugoslavia, bunal should be established forthe punishment of criminal
the Application is said to be inadmissible on.the ground acts directed against human rights, including genocide, and
that it refers to events that .tookplace withinthe framework that the Convention is essentially directednot to the rights
of a civil war, and there is consequently no i.nternationa1 and obligations of States but to the protection of rights of
dispute upon which the Court could make a finding. individuals andgroups of persons which have become rec-
This objection is very close to the fifth objection which ognized as universal. He states further that the failure of
the court has already considered. In responding to the any contracting party "to prevent and to punish" such a
crime may onlybe rectified and remedied through(i) resort
latter objection, the Court has in fact also answered this. to a competent organ of the United Nations (article VIII)
Having noted that there does indeed exist between the Par- or (ii) resort to an international penal tribunal (article VI),
ties a dispute falling within the provisions of article IX of but not by invoking the responsibility of States in inter-
the Genocide Convention--that is to say, an international
dispute-the Court cannot find that the Application is State relations before the International Court of Justice.
inadmissible on the sole ground that in order to decide the Referring to the travazlxprdparatoires of the Conven-
dispute it would be impelled totake account of eventsthat tion, he pointedto the very uncertaincharacter of article IX
may have occurred in a context of civil war. It follows of the Genocide Convention. In his view, Bosnia and
that the first objection of 'Y'ugoslavimust be rejected. Herzegovina, inorderto seisethe Court ofthe present case,
According to the second objection of Yugoslavia, the would certainly have had to show that Yugoslavia could
Appllicationis inadmissiblebecause,asMr. AlijaIzetbegovi'c indeed have been responsible for the failure of the fulfil-
was not serving as President ofthe Republic--but only as ment of the Convention in relationto itself, but, more par-
President of the Presidency-at the time a.t which he ticularly, Bosnia and Herzegovina would have had toshow
granted the authorization to initiate proceedings, that that Yugoslavia had breached the rights of Bosnia andHerzegovinaas a contractingpal-t)~ (which by definition is Separate opinion of JudgeShahabuddeen
a State) that should have beenprotected under the Conven- In his separate opinion, Judge Shahabuddeen expressed
tion. This, however, has not been shown in the Application the view that the special characteristics of the Genocide
and in fact the Convention is not intended to protect the Convention pointed to the desideratum of avoiding a
rights of Bosnia and Herzegovina as a State.
After all, Bosnia and Herzegovina does not, in the view succession time-gap. This justified the Convention being
of Judge Oda, seem to have alleged that it has a dispute construed as implying the expression of a unilateral under-
with Yugoslavia relating to the interpretation or applica- taking by each party to the Convention to treat successor
tion of the Genocide Convention, although only such a dis- State!; as continuing as from independence any status
pute-and not the conlmission of genocide or genocidal which the predecessor State had as a party to the Conven-
acts which certainly are categorized asa crime under inter- tion. 'Thenecessaryconsensual bond iscompleted whenthe
national law-can constitute a basis of the Court's juris- successor State decides to avail itself of the undertaking by
regarding itself as a party to the Convention.
diction under the Convention.
Judge Oda is inclined to doubt whether the International Separate opinionofJudge Weerarnan try
Court of Justice is the appropriate forum for the airing of
the questions relating to genocide or genocidal acts which Jutlge Weeramantry, in his separate opinion, states that
Bosnia and Herzegovina has raised in the current proceed- the Genocide Convention is a multilateral humanitarian
ings and whether international law, the Court, or the wel- convention to whichthere is automatic successionupon the
fare of the unfortunate individuals concerned will actually break-up of a State which is party to it.
benefit from the consideration of cases of this nature by In hisview, this principle foljows from many considera-
the Court. tions: and is part of contemporary international law.
He adds that the Court should maintaina very strictPsi-
tion in connection with questions of itsjurisdiction, as the Among these circumstances are that the Convention is not
consensus of the sovereign States in dispute essentially centr,:d on individual State interests, and transcends con-
cepts of State sovereignty. The fights it recognizes impose
constitutes the basis of thatjurisdiction. If the basic condi- no bu,rdenon the State, and the obligations it imposes exist
tions were to be relaxed, he would expect to see a flood of independently of conventional obligations. Moreover, it
cases pouring into this judicial institution, the task of embodies rules of customary international law, and is a
which is mainly thc settlement of international disputes. contribution to global stability. A further circumstance is
the undesirability of a hiatus in succession to the Genocide
Jointdeclaration ofJztdgeShiandJztdge Vereshchetin Convention,associatedwiththe specialimportanceof human
right!;guarantees against genocide during periods of tran-
Intheirjoint declaration,JudgeShiandJudgeVereshchetin sition. The beneficiaries of the Genocide Convention are
state that, since 'article 1X of the Genocide Convention not third in the sense which attracts the res inter
affords an arguable legal basis for the Court'sjurisdiction alias acts principle. The fights conferred by the Conven-
to the extent that the subject-matter of the dispute relates tion ;,re non-derogable.
to "the interpretation, application or fulfilment" of the
Convention, they voted in favour of the Judgment, except For all these reasons, the conclusion is compelling that
forparagraph1(c)of itsdispositif:Nevertheless,they express automatic succession applies to the Convention.
their concern over some substantial elements of the case. In his opinion, Judge Weeramantry also expresses the
In particular, they are disquieted by the statement of the view that the principle of continuity to the Genocide Con-
Court, in paragraph 32 of the Judgment, that article IX of vention is of particular importance in contemporary inter-
the Genocide Convention "does not exclude any form of natio.na1law, owing to the break-up of States in manyparts
State responsibility". of the world. It is precisely in such unsettled times that the
In their view, the Convention on Genocide was essen- people of such States need the protection of the Conven-
tially and prima~ily designed as an instrument directed tion.
towards the punishment of persons committing genocide
or genocidal acts and the prevention of the commission of
Separate opinionofJudgeParra-Aranguren
determination of the internationaltaicommunity to bringe
decision, the Separate opinion of Judge Parra-Arangurenthe
individllalperpetratorsof genocidalactstojustice, irrespec-
tive of their ethnicity or the position they occupy, points slaviaeOnolo August 1993thatthe admissand made by yugo-was
to the most appropriate course of action. Therefore, in their
view, it might be argued that the International court of a party to the Genocide Convention when requesting the
justice is not the proper venue for the of the Court:for indicationof provisional measures, being therefore
which the ~ ~ ~ l i ~h~as~r~ised in the current applicable its article IX onjurisdiction; and (2) the decla-
proceedings. ration made byBosnia and Herzegovina expressingits wish
to succeed to the Convention with effect from 6 March
DeclarationofJudge ad hoc Lauterpacht 1992,the date on which it became independent. According
to Judge Parra-Aranguren, the Court should have remarked
Judge ad hocLauterpacht appendeda declaration explain- on and developed the point that this declaration is in con-
ing that, so as to avoid any appearance of inconsistency formity with the humanitarian nature ofthe Genocide Con-
with his remarks on forunz prorogarunt in his separate vention,the non-performanceof which may adversely affect
opinion of September 1993, he did not vote in favour of the people of Bosnia and Herzegovina, an observation
paragraph 2 (b) of the operative part of the Judgment in so that the Court had already made in its advisory opinion of
far as it excluded anyjurisdiction of the Court beyond that 21 June 1971on the Legal Consequencesfor Statesof the
which it has under article IX of the Genocide Convention. Continued Presenceof SouthAfrica in Namibia(South-

108Wesi! Africa) notwithst~nd~inS gecurity CouncilResolutiotz legal natureofthe norm prohibiting genocide and the imple-
276 (1970) (I.C.J.Reports 1971, p. 55,para. 122)and that mentation or enforcement of that norm. The fact that the
is in conformity with Article 60, paragraph 5, of the 1969 norm prohibiting genocide is a norm ofjzis cogetzscannot
Vierma Convention on the Law of Treaties. be understood as implying that the obligation of States to

prevent and punish genocide is not tcrritorially limited.
Dissenting opinionof Judge ad hoc KreEa More particularly, that norm, like the other norms of inter-
Judge ad hoc KreEafindsthat the relevant conditions for national law, is applicable by States not in an imaginary
space but in a territorialized international community,
the entertainment of the case by the Court, those reIating which means that territorial jurisdiction, as a general rule,
to both jurisdiction and admissibility, have not been met. suggeststhe territorial characterof the obligations of those
There exists the dilemma, not resolved by the Court, as States in both prescriptive and enforcement terms.If this
to whether Bosnia and Herzegovina atthe tirne when the were not the case, the norms of territorial integrity and
Application, as well as the Memorial, were submitted, and sovereignty, also havingthe character ofjus cogens,would
Bosnia and Herzegovina today, after entry into forceofthe be violated.
Dayton Agreement, are in:Factoneandthe same State.This He is of the opinion that, under the Genocide Conven-
question isof irrefutable relevance in the circumstances of tion, a State cannotbe responsible for genocide. Themean-
the present case, since it o:pensthe way forpevsona standi ing of article IV of the Convention, which stipulates crimi-
in indicio of Bosnia and Herzegovina. Also, he is of the nal responsibility for genocide ortheotheracts enumerated
opinion that the proclamation of Bosnia and :3erzegovina. in article111 of the Convention, excludes, inter alia, the
as a sovereign and indepen.dentState constitut~:~ a substan- exclusionof the criminal responsibilityof States and rejects
tial breach, both formally and substantively, of the cogent
the applicationof the actof State doctrinein this matter.
nornl on equal rights and. self-determination of peoples. Judge ad koc Kreia finds that "automatic succession"
Accordingly, onecan speak only of successiondefacto and is iex ferenda, a matter of progressive development of
not of succession dejure in relation to the trimsfer of the international law, rather than of codification. Notification
rights and obligations of the predecessor State. of succession, in his opinion, is not appropriate per se for
Ju.dgead hoe Krec'adisagrees with the Court that the expressing consent to be bound by treaty, since, as a uni-
"obligation each State thu.shas to prevent and punish the lateral act, it seeks to conclude a collateral agreementin
crime of genocide is not territorially limited by the Con- simplified form with the other parties, within the frame-
vention" (para. 31 of the Judgment). He is of'the opinion work of general multilateral conventions, like the Geno-
that it is necessary toraw a clear distinction between the cide Convention.