INTERNATIONAL COURTOFJUSTICE
CASE CONCERNING APPLICATIONOF THE CONVENTION
ON THE PREVENTIONAND PUNISHMENTOF THE CRIME OF
GENOCIDE
(Bosnia and Herzegovinav. Yugoslavia)
WRITTENOBSERVATIONS
OF
BOSNIA ANDHERZEGOVINA
on the
APPLICATIONFORREVISION
OF THEJUDGMENT OF11 JULY 1996
(Yugoslav.Bosnia and Herzegovina)
3December2001WrittenObservations Page3
of Bosnia and Herzegovina
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Applicationfor Revision
(Yugoslavia v. Bosniaand Herzegovina) Tableof Contents
TABLE OF CONTENTS page
LIST OF ANNEXES 5
PART 1 -INTRODUCTION
The procedure
General assessment of Yugoslavia's Application
Outline of the present Written Observations
PART II -A CHANGE OF POSITION
= Initial position
General Assembly
Yugoslavia's positionuringthe currentproceedings
Dayton-Paris Agreement
Conclusion
PART III -ARTICLE 61 OF THE STATUTE
Introduction
A previously unknown fact
"Ignorance not due to negligence"
"Discovery" of a previously unknownfact
"A decisive factor"
Prescription of six months
Conclusion
PART IV -YUGOSLAVIA IGNORES ITS OWN BEHAVIOUR 33
AS A DECISIVE FACTOR
Introduction 33
Yugoslavia has declaredto be aMember of the United Nations and a 34
Party to the Genocide Convention
Yugoslavia has acquiesced in thejurisdiction of the Court onthe basis
of Article IX of the Genocide Convention
Conclusion 43
PART V -THE COURT HAS JURISDICTION ONTHE GROUNDOF 45
ARTICLE 35, PARA. 2, OF ITS STATUTE
Introduction 45
Article 35, paragraph 2, provides, in any case, abasis for the 46
jurisdiction of the Court
The 1948 Convention was inforcebetween the Parties at the relevant 51
time
Conclusion 56
PART VI -SUBMISSIONS 57I,t'/,itlenOI~servatio~.s Page 5
c?f'Bo.c.ind Herzeyovinu
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.4/)j7/ic~/tiRni~iril.
(Yugo.slnviv.Bnsriiund Herzegovinn) List ofAnnexes
LIST OFANNEXES
Pageof the
Written
Observations
Part II A change of position
1. Al47lpv.7, page 142
2. Al471pv.7,pages 144-152
3. AI47lpv.7,pages 152, 153-155
4. Al471pv.7,page 157
5. Al471pv.7,page 158-160
6. Al471pv.7,page 161
7. AI47lpv.7,pages 162-163
8. Al471pv.7,pages 171-173
9. Al471pv.7,pages 176-177
1O.Al471pv.7,page 182
11.Al47lpv.7, page 188
12.Al47lpv.7, page 191
13.Al471pv.7.pages 192-193
14.CERDISPISR.23, page3
15.CERDlSPlSR.23, page 4
16.CCPWSPISR.18.page 7
17.CERDlSPl50
1S.CERDlSPl53
19.CERDlSPl54
20. CCPRISPISR.18
2 1.CCPRISPISR.19
Part III Article 61 of the Statute
22. Al471474
23.Prograin of Deinocratic Oppositionof Serbia,Internet copy
24.Part of Kostunica-speechdated 1Septeinber2000, Interiletcopy
25.Media CeilterBelgrade.News Aiialysis, 9 October2000 Page 6
WI-ittonOh.scri~ations
of'Bos17iuund He~zegovina
I'L'
Applicution,fbr Revision
()'ugo,slni~iai~.Bosnia and Heriegovina) List ofAnnexessIVrilfen0h.servation.s Page 7
of'Bosniuund He~azegoijina 3 Decenlber2001
I"L'
Application,fbr Rei)ision Part 1
[}'~lgoslui1;Bosnia und Hcrzegoi)ina) lntvoducfion
PART 1
INTRODUCTION
The procedure
1.1. On 23 April 2001 the Federal Republic of Yugoslavia (Yugoslavia) filed an Applica-
tio for Rcvisioizofthe Judgment of II July 1996 basing itself on Article 61 of the Statute of
the Court.
1.2. The President of the Court has fixed 3 December 2001 as the time-limit within which
Bosnia and Herzegovina may s~ibmitits written observations with regards to the admissibility
of the Application ,for Revision (see letter of the Acting Registrar dated 2 1August 200 1,no.
108816).
1.3. T11epresent W~pitten Ohseri~ations of Bosnia and Herzegovina are submitted in ac-
cordance with the tiine-limit set by the President of the Court.
1.4. Of course. Bosnia and Herzegovina will, in what follows, deal with the Application
for Revision in detail. At the same time Bosilia and Herzegovina wants to, right away, draw
tlie attention oftlie Court to one of the Court's earlier findings in this case, which findiilg in
no way cal1be affected by the Application for Revision ilor by the "Initiative":
"The proceedings instituted before the Court are between two States whose
territories are located witliin the former Socialist Federal Republic of Yugoslavia.
Tl~atRepublic signed the Genocide Convention on 11 December 1948 and depos-
ited its instrument of ratification, without reservation, on 29 August 1950. At the
time of the proclamation of the Federal Republic of Yugoslavia, on 27 April 1992,
a foimal declaration was adopted on its bel-ialfto the effect that:
"The Federal Republic of Yugoslavia, continuing the State, international le-
gal and political personality of the Socialist Federal Republic of Yugoslavia,
shall strictly abide by al1the coinmitments that the Socialist Federal Repub-
lic of Yugoslavia assunied interilationally."I.Yriti70~~rvatio11.~ Page 8
~f'Bosnicr~11der-eguvina 3 Decenzber 2001
1.e
A/~plicutian,f»rRevision Part 1
(Yzcg~slcwi1)Bosnia and Herzegovina) Introduction
This intention tlius expressed by Yugoslavia to remain bound by the international
treaties to which the former Yugoslavia was party was confirined in an officia1
Note of 27 April 1992 froin the Permanent Mission of Yugoslavia to the United
Nations, addressed to the Secretary-General. Tlie court observes, furthermore, that
is has not been contested tliat Yugoslavia was party to the Genocide Convention.
Tlius, Yugoslavia was bound by the provisions of the Convention on the date of
the filing of the Application in the presei~tcase, nainely, on 20 Marc111993."
(para. 17of the Judgineiit on Preliminary Objections dated 11 July 1996)
These findings of the Court cannot be cliangedretroactively.
General assessrnentof Yugoslavia's Application
A frequently returiling feature of the history of this case were the attempts of Yugo-
1.5.
slavia to lteep the case from reaching the stage of oral proceedings. At the point in time that
al1obstacles for tliat seemed to liave disappeared Yugoslavia has submitted this Application
foi Revision (parallel to its so-called "Initiative" dated4 May 2001).
1.6. In his letter to the Court dated 18Jaiiuary 2001 Yugoslavia's ForeignMillister stated:
"In the light of the fundaineilta1change of policies as well as the new inter-
iiatioiial positioii of the Federal Republic of Yugoslavia, iny Government will
liave to undertake a careful review of Yugoslavia's position in Ourcases pending
before the Internatioiial Court of Justice".
and
"The iinprovement of Yugoslavia's relationswith Bosiîia and Herzegovina
inight open the way for finding an amicable solution to al1outstanding controver-
sies."
The product of tliis "review of Yugoslavia's position"is not so much an attempt to realize "an
ainicable solution", but rather -in full coiiformity with the usual delayiilg strategy of Yugo-
slavia- a fresli attempt to lteep the Court from reaching the oral proceedings phase of this
case.
1.7. While being pleased with the improvement of the relations between bot11countries,
the Governrnent of Bosiiia and Herzegoviiîa cailnot accept the iinplication of this stateinent in
that the present procedure seems to oppose "an ainicable solution of al1outstanding contro-
versies". It is the coiisidered view of Bosilia aild Herzegovina that a Judginent of the Interna-
tional Court of Justice on the Case brought before this Court by Bosnia and Herzegovina is anIYriltenOhservatior7s Page 9
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A/~plicution,forRcijisiio PavtI
()'zcgo.sla1)Bosnia and Henegoi~ina) introduction
indispensable part of the re-establishment of long-lasting amicable relations between the Par-
ties.Only when al1issues regarding the respoilsibility for acts of genocide comnlitted agaiilst
the non-Serbs in Bosilia and Herzegovina are clarified, can mental reservations disappear and
f~~lclonfidence between bot11States be fully restored.
1.8. Yugoslavia now taltes the position that it has been wrong for many years about the
tiue legal nature of its status and of its iilternational relations (see a.0. pa35. of the Applica-
tion of 23 April 2001). The explanatioil for this "being wrong" is apparently to be found in the
"lacl<of clarity" (see para. 17 of the Application) of its position and in the "uncertainties and
dilemmas" regarding its position (see a.0. para. 8 of the Application).
1.9. Apparently, this "being wrong" -and nothing else- provides for the basis of the Ap-
plication for Revision. It is to this presumption that Yugoslavia connects -retroactive- conse-
queilces for its being a party to the Statute of this Court and for its being a party to the Geno-
cide Convention.
1.10. As will be demonstrated below (see Part III) in the view of Bosnia and Herzegovina
it is clear that this Application does not nearly ineet any of the conditions laid dowiî in Article
6 1 of the Statute of the Court.
Moreover, Yugoslavia's behaviour since its proclamation on 27 April 1992 inay from a legal
point of view not be ignored (as Yugoslavia does). This bel-iaviourin itself leads to the con-
clusion that this Application for Revision is inadmissible.
1.11. At the same tiine it should be stressed that wl~atis at tlie centre of this Application
for Revision is nothing inore and nothing less than a substantial change, made by Yugoslavia,
in its position regarding soine issues wl~ichare related to questions of state-contiiluity and
state-succession. This change of position (however practical and politically prudent this
change lnay have been) has been made entirely voluntarily by Yugoslavia. For that reason
alone this, voluntary and unilateral, cllange can never have a retroactive effect. This change of
position can never, retroactively, take away nos change the legal basis from Yugoslavia's act-
ing in tlie past, let alone that it could ever, unilaterally and retroactively, talte away the basis
on which Yugoslavia presented itself to tl~isCourt and to its Adversary in this case and, for
that inatter, in several other cases (Yugoslavia 1).Belgiurn, Canada, France, Gernzur~y,Italy,
Nc.tl?erlnr7d.vP.ortugal, UnitedKingdoi77).
1.12. When Yugoslavia withdrew its couiiterclain~s,obviously, Bosnia and Herzegovina
did iiot have any ob-jectionwhatsoever (vide Bosnia and Herzegovina's letter to the Court
dated 12 July 2001). On the contrary, Bosnia and Herzegovina welcoined tl-iisstep, which ledIVrirtenObservalions Page 10
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Ai~plicationfOr Revision Part I
(Yz~go.slav1:Bo.~t~iund Herzegoi~ina) Introduction
the President of tlîe Court to his Order of 10 September 2001, placiilg on record the witll-
drawal by the Federal Republic of Yugoslavia of the counter-claims submitted by it in its
Counter-Menlorial. Of course, the fact tlîat Bosnia and Herzegovina did not have any objec-
tion nlay in no way be coiîstrued as Bosnia and Herzegovina's acquiescence in the position
that Yugoslavia has now takeiî regarding its UN-n~embersllip,its being a Party to the Statute
and to the GelIocide Conventioil.
Outline of the present Written Observations
1.13. In Part 11of tl~eseWritten Observations Bosnia and Herzegovina will explaiil tl~atthe
issue at stake here falls o~itsidethe reaclî of Article 61 of the Statute, since there is no ques-
tion of any new facts, as envisaged in this provisioil, having presented tlîemselves, but there is
rather and lnerely a cllange iiî tlîe position of Yugoslavia ïegarding tlîe issues involved.
1.14. In Part III of these Written Observations Bosnia and Herzegovina will demonstrate
that, assuming urgtlendo that Article 61 inay conle iilto play, the Application for Revision
fails to meet any of the criteria laid down in this provision.
1.15. IIIPart IV of tlîese Written Observations Bosnia and Herzegoviila will take the Court
back to the positions adopted by Yugoslavia earlier in these proceedings with regards to its
beirig bouild by the Genocide Convention and will show tl~atYugoslavia is estopped iil adopt-
iilg its newly developed position.
1.16. In Part V of these Written Observations Bosnia and Herzegovina will establislî tl~at,
in any event. the jurisdiction of the Court with regards to Bosnia's case is to be found in ap-
plyiiig Article 35 para. 2 of the Statute of the Court.
1.17. 111Part VI Bosnia and Herzegovina will present its subnîissions requestiilg the Court
to declare the present Application not admissible.IVrittenObservations Page II
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Application,for Revision Part II
(Yz,igoslnviuv. Bosnia and Herzegovina) A Change of Position
PARTII
A CHANGE OF POSITION
Initial position
2.1. The declaration adopted on 27 April 1992, proclaiming the Federal Republic of
Yugoslavia (partly quoted above, para. 1.4.)contains the following language:
"The Federal Republic of Yugoslavia, coiltinuing the state, interilational le-
gal and political personality of the Socialist Federal Republic of Yugoslavia, shall
strictly abide by al1the commitments that the SFR of Yugoslavia assumed interna-
tionally,
At the same time, it is ready to fully respect therights and interests of the
Yugoslav Republics which declared independence. The recognition of the newly-
forined states will follow afier al1the outstanding questioils negotiated on within
the Conference on Yugoslavia have been settled,
Reinaining bound by al1obligations to international organizations and in-
stitutions whose meinber it is, the Federal Republic of Yugoslavia shall not ob-
struct the newly-forined states to join these organizations and institutions, particu-
larly the United Nations and it specialized ageilcies." (the full text of this Declara-
tion appears as Anriex1to Yugoslavia's Application for Revision)
Tl-iroughhis note to the Secretary-General of theUnited Nations of the saine date (27
2.3.
April 1992) the Chargé d'affaires a.i. of the Permanent Mission of Yugoslavia to the United
Nations. Amb. Dragoinir Djokic, iilformed the UN of the following:
"The Assembly of the Socialist Federal Republic of Yugoslavia, at its ses-
sion held on 27 April 1992, prornulgated the Constitution of the Federal Republic
of Yugoslavia. Under the Constitution, on tlie basis of the continuing personality
of Yugoslavia and the legitimate decisions by Serbia and Montenegro to continue
to live togetl~erin Yugoslavia, the Socialist Federal Republic of Yugoslavia is
transformed into tlîe Federal Republic of Yugoslavia, consisting ofthe Republic
of Serbia and the Republic of Montenegro.
Strictly respecting the coiltiiîuity of the international personality of Yugo-
slavia, the Federal Republic of Yugoslavia shall continue to fulfil al1 the rightsWritten Observations Page 12
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Al~pliculionjbr Revision Pari II
(Yug«.rlavi1,Bosnia und Herzegovinu) A Change of Position
conferred to, and obligations assumed by, the Socialist Federal Republic of Yugo-
slavia in international relations, includiiig its membership in al1iiîterilatioilal or-
gaiiizations aiid participation in internatioilal treaties ratified or acceded to by
Yugoslavia." (the full text of this Note appears as Annex 2 to Yugoslavia's Appli-
cation for Revision)
General Assembly
2.3. As the records of the United Nations show the issue of Yugoslavia's positioil was
debated several times over a period of years. Duriiig the meeting of the General Assembly of
22 Septeinber 1992, wliich meeting led to the adoption of Resolution 4711of the sarne date
(see for tl~etext of this Resolution Ailnex 7 of Yugoslavia's Application forRevision) no clar-
ity was given by any State ilor obtained - although requested - by any State about the precise
legal status of Yugoslavia vis-à-vis its inembersliip of the United Nations.
2.4. The adopted Resolution clearly aimed at resolving an obvious difference of opinioil
betweei~Yugoslavia at the one hand and the other foriner Yugoslav republics at the other
Iîand about the coi~sequencesof the dissolution of the foriner Socialist Federal Republic of
Yugoslavia. Clearly the Resolution, deciding "that the Federal Republic of Yugoslavia (Ser-
bia and Montenegro) should apply for iilembersl~ipin tlie United Nations" (emphasis added),
was aimed at briilging Yugoslavia on equal footing wit1.ithe other States emergiilg from the
former Yugoslavia. As Sir David Hannay (United Kiilgdom) put it on behalf of the sponsors
of tlîis Resolution:
"111other words, as regards tlie need to submit an application for inember-
sllip, the Federal Republic of Yugoslavia (Serbia and Montenegro) is in precisely
the same position as other compoiients of the former Socialist Federal Republic of
Yugoslavia." (A47lPV.7, page 142,Annex 1)
Tlîus, the resolutioil was inspired by, in itself perfectly acceptable, political motives and not
by consideratioiis of legal iiecessity. The Yugoslavia, througli its then Prime Miilister Panit,
did iiot pronounce clear objections, rather concern, against this Resol~ition(A47lPV.7, pages
145-1 52,Aililex 2).
Other represeiltatives were unclear about the ineaning of the Resolution or explicitly re-
quested clarifications.
2.5. Croatia characterized the Resolution as "the expulsion of Serbia and Montenegro
froin the General Assembly" and stipulatedWritten ODserva/ion.s Page 13
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Al~plic~/lion,fbrRevisioril Part II
(Yugos/ui:iui:.Bo.rniaand Her,zegoi:ir7a) A Change of Position
"For us, tl-iisis an act that both resolves the legal dilemma of the status of
the former Yugoslav States and clarifies the succession of States in the area.
(...>
Croatia is a sponsor of the drafi resolution and will vote for it in the belief that it
will play a pivotal role in resolving the issue of succession (...)" (AI47lpv. 7,
pages 152, 153-155, Annex 3).
Tlie Bosnian representative also took an outspolten position :
"(...) the former Socialist Federal Republic of Yugoslavia kas ceased to ex-
ist. Serbia and Montenegro are not legally entitled to succeed to the position of the
former Socialist Federal Republic of Yugoslavia"
and i~npliedthe main goal of the Resolution by stating:
"We are I-iopef~ltlhat Ouractions liere this evening will not oi-ilyestablish an
orderly succession for the former Yugoslavia, but also help promote peace, basic
humail rights and stability in Ourregion." (A/47/pv. 7, page 157, Ai-inex4)
2.6. Others raised various doubts and questions; for exainple the Representative of Ghana
observed:
"In anticipation of the situation that now faces OurOrganization, in wl-iicha
Member State has uildergone territorial or constitutional changes, the General As-
seinbly determined in 1947 that as a general rule such a State should ilot cease to
be a Member simply by virtue of such changes. We wish to read into that deter-
mination the desire to proinote universality in the meinbership of Our Organiza-
tion." (Al471pv.7,pages 158-160, Anilex 5)
IHeadded:
"The draft resolutioil before us does not reflect any principled position in
terins of the Charter. (...)
The draft resolution before us may be pragmatic, but it cannot be said to be princi-
pled, logical or consistent to the extent that it allows for Yugoslav participation in
the work of our Organization, other than that of the General Asseinbly."
(Al47lpv.7. page 161, Annex 6, see also Zimbabwe Al471pv.7, pages 162- 163,
Annex 7)
'rl-ieRepresentative of Zambia also had problems witl-ithe proposed Resolutioi-i:
"We also found that the sponsors lacked transparency in so far as their ac-
tua1intentions were concerned in the sense that, instead of using the provisioils ofWritten Ob.servations Page 14
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Applicuf ion,for Revision Part II
(Y7rgoslui~11Bosnia and Herzegovina) A Cl~a~geof Position
the Charter that are adequate to allow either the expulsion or suspension of a
meinber State or its rigl~ts,a inuch more clever formula was found to evade this
particular issue, througll some clever drafting of a resolution that went through the
Security Council process.
(...>
We are concerned tllat the draft resolution before us is not based on the relevant
provisions of the Charter. We are also of the view that the argument that Yugosla-
via cailnot autoinatically continue the membership of the fornler Socialist Federal
Republic of Yugoslavia in the United Nations is defective and unsustainable.
(...)
Our analysis of the text, and in particular its operative paragraph 1, reveals that
the effect of this draft resolution is in fact to expel Yugoslavia, which ia Member
State." (A1471pv.7,pages 17 1-173,Anilex 8)
The Representative of Tailzania concluded:
"The draft resolution if thus based wholly on political considerations."
(A1471pv.7,pages 176- 177, Annex 9)
The Representative of Hungary explained, that it was for political reasons, that Hungary
would support the Resolutioil:
"In political terins- and 1emphasize political - the draft resolution submit-
ted is in reality only the logical result of the judgement which the international
cominui~ityhas constantly brought to bear on the situation that has emerged in the
field, a judgemeilt that has been reflected in a number of resolutions adopted by
the Security Couilcil, ilamely, that the primary responsibility forthe bloody events
that have been laying waste the territory ofthe former Yugoslavia for a year and a
half inust undeniably be borne by the authorities in Belgrade." (Al471pv.7, page
182, Ailnex 10)
2.7. The Representative of Mexico. after the vote, explained why Mexico did iîot support
tlie Resolution:
"Moreover, we are concerned that the text of the resolution contains nothing
that would iildicate its basis in law. The Cllarter of the United Nations makes no
provision for the issue of the brealtup and subsequent successioil of States. On
previous occasions the Security Council has, therefore, tacitly recognized the
automatic replacement of the whole by one part, or has admitted the new Mein-
bers that emerged from the breakup.
The resol~itionjust adopted is of a differeilt Icind;it finds no suppoi-tin Arti-
cles 4, 5 or 6 of the Charter, dealing with the conditions for inembership in the
united Nations and with suspension or expulsion tl~erefrom.Thus, it 11asshort-
coinings froin the legal standpoint wl-iichwe find of coilcern at a tiine when theM1rittenOhseri~crtions Page 15
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Ap/~licution,for Rci:ision Part II
O'z~gosiai~i1.Bos~ia und Herzegovinu) A Change of Position
rapid chailges in tlie political inap of the world compel us to be caref~llto preserve
the rules of international law." (Al471pv.7,page 188, Annex 11, see also Guate-
mala, Ai47lpv.7, page 19 1,Aiinex 12,and Trinidad and Tobago, Ai471pv.7,pages
192-193, Aiinex 13)
2.8. If one thing becomes clear from tlie above, it is that the majority of the General As-
seiubly, including Bosnia and Herzegovina, desired that the Yugoslav succession issues
would be resolved in a specific, practical, maimer, which manner was defined in political
rather than in legal terms. This is confirmed by the Legal Counsel to the United Nations, who
in llis letter of 29 September 1992 states that "the only practical coilsequence that the resolu-
tioii draws is that the Federal Republic of Yugoslavia (Serbia and Montenegro) cal1no longer
participate in the worlcof tlie CieneralAsseinbly. (...) On the other liand, the resolution nei-
tlier terminates nor suspends Yugoslavia's membersliip in the Organization. (. ..)The admis-
sion to the United Nations of a new Yugoslavia under Article 4 of the Charter will terminate
the situation created by resolution 4711 ." (einphasis in the original; see for the full text of this
letter Annex 9 to Yugoslavia's Application for Revision)
111other words, in tlie view of tlîe Legal Counsel an admission to the United States would se-
solve the outstanding issues and would put an end to the 'non-participatory' status of Yugo-
slavia.
2.9. At tlie time, however. Yugoslavia would not accept this approach and explicitly
stuclcwitlî its position that Yugoslavia would be the sole continuator of tlie SYugoslavia, a
position wliich was ilot acceptable -based on perfectly sound political considerations- to tlie
other States which had einerged from the former Yugoslavia, and which position -as appears
fi-ointhe vote on the resolution- was not acceptable to the inajority of the General Assembly
eitlier.
2.10. This discnssioi~coiltinued for several years and came also up in 1994during the 231~
meeting of the States Parties to the U.N. International Convention on tlie Eliinination of al1
Forins of Racial Discrimination and again -also in 1994- during the 18t"andl9th meeting of
the States parties to the Interiiational Covenant on Civil and Political Rights. Here also the
precise position of Yugoslavia did i~otaltogether becoine clear, altliougl~again a majority of
the States Parties voted in favour of the proposa1that Yugoslavia should not participate in
these meetiilgs. Following below arejust a few quotations from tlie minutes of these meetings
demoristrating the unclearness:
The represeiltative of Slovenia:J4'1'irre0nbscrvation.v Page 16
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lYzigo.sluvIJBosnia and Herzegoi~ina) A Change of Positioi7
"(...) reiterating the positioi~of his delegatioil on participatiori by the Fed-
eral Republic of Yugoslavia (Serbia and Montenegro), said that it considered al1
successor Statesto the former Yugoslavia to be equal.The questioilof their mein-
bership in the United Nations sl-iouldbe resolved by the Security Council and the
General Asseinbly. Participation by the Federal Republicof Yugoslavia could in
no way pre.judgethe result ofthe discussions on terminution of its nzei7zber~ship."
(CERDISPISR.23,page 3,einphasisadded,Ailnex 14)
T11eTemporary Chairmailof this ineetii~g(Mr.Fleischhauer,LegalCounsel) observedthat
"He was unaware of any decision that would deprive the Federal Republic
of Yugoslavia (Serbia and Montenegro) of membership il1 a treaty body."
(CERDISPISR.23,page 4, Annex 15)
The represeiltative of Belgium (011behalf ofthe EU-Member States), supported by Australia
aiîdthe Nordic countries
"(...) said that the vote of the delegations concerned waswithout prejudice
to their position regarding the status of the Federal Republic of Yugoslavia (Ser-
bia and Montenegro) vis-à-vis tlie Coveilailtor the other international obligations
of the former Socialist FederalRepublic of Yugoslavia.Those delegations were of
the view that the FederalRepublic of Yugoslavia (Serbiaand Montenegro) should
abide by the obligations arising under the Covenant." (CCPR/SP/SR.l8, page 7,
Anilex 16)
2.11. During al1 of these various debates Yugoslavia time and again stipulated tliat it
would coiltinueto hoilor itsii~ternationalcommitinents,which commitmentsit willfully inher-
ited aiid accepted fromthe former Yugoslavia(CERDISPISO,Aiinex 17, CERD/SP/53, Annex
1S, CERDlSPl54 Anilex 19,CCPR/SP/SR.18,Anilex20aiidCCPR/SP/SR.19,Ailnex 21).
Yugoslavia's position during the current proceedings
2.12. During the preseiit proceedings beforethe InteriiationalCourt of Justice Yugoslavia
has consequeiltly talteilits beiilg a party to the Coiiveiltioil011the Preveiltionand Punishmeilt
of the Crimeof Genocide (1948) as the basis forits position.
3.1 3. For example iil its response to Bosnia's request for the iildicatioil of Provisional
Measures on 1 April 1993 Yugoslavia stated:W1,i1/o7Ohse/-vations Page 17
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,4/plic~1tion,fbrReirision PartII
(Yz~gosluviav.Bosnia and Herzegoi~i17a) .4 Change of Position
"(...)The Court should reject the proposed provisional measures under para-
graphs 2 - 6 above, talting into accouilt that these measures are outside Article 9
of the Convention oiî the Prevention and Punishment of tlie Crime of Genocide
and tlîat therefore the Court is not competent to decide upon them. (. ..)" (page 3,
$5)
and it continued:
"6. The Goverlunent of the Federal Republic of Yugoslavia avails itself of
this opportuility to inform the Court that is does not accept the competence of the
Court in aiîy request of the Applicant which is outside the Convention on the Pre-
vention and Puilishineilt of the Crime of Genocide. This is without prejudice to
the final decision of the Yugoslav Governinent to be party to the dispute submit-
ted by the "Republic of Bosilia and Herzegovina". (page 3, 56)
2.14. During the oral proceedings on 3 April 1993the representative of Yugoslavia stated:
"(...) The Federal Republic of Yugoslavia does not consent to any exteilsion
of the jurisdiction of the Court beyoizdwhat is strictly stipulated in the [Genocide]
Convention itself." (CR 93113, page 16)
"(...) It is attempting to abuse the thresholdjurisdiction of the Court to iildi-
cate provisional measures of protection in order to obtain an ad interiin judgment
on the merits, notwitlîstanding that in Oursubmission iil tlîis case the admittedly
low tl~resholdjurisdiction under the unusual con~promissoryclause of the Geilo-
cide Convention has not been reached." (page 25)
"(...) In relation to provisional measures of protection, the competeilce of
the Court is established by Article 36, paragraph 1: of the Statute, read togetlîer
with Article IX of the Convention as the point of departure, followed by Article
41 of the Statute and the discretion which Article 41 confers on the Court, a dis-
cretion wlîicl~,1 inight add, as al1 other discretioiîary powers conferred on the
Court, inust be exercised judicially. No amendment can be made to the Charter
and Statute of the Court by another treaty." (page 30131)
"With regard to the first aspect, I have already attempted to show, 1hope to
the satisfactioil of tlîe Court, that to the extent that Article IX of the Convention
supplies a basis for the jurisdiction of the Court, that jurisdiction is limited to
eveilts which occurred after tlîe pai-ticipationof Bosnia and Herzegovina in the
Geiîocide Conve~îtionbecaine effective. (...)" (page 34)
2.15. 0119 iZugust 1993 Yugoslavia submitted a Request for the indication of Provisional
Measures:M'rit/enOhseri~atio~i.~ Page 18
(?fBosniu and Herzegoi~ina 3Decemher 2001
rr
,4/3p/i~.ntionRrevision Part Il
(Yz~goslaviuv.BOSMIUund Herzegovina) A Change ojposition
"3. Reserving al1rights of objections to the jurisdiction of the Court and to
tlzeadmissibility of tlzeApplication, the Federal Republic of Yugoslavia requests
the Court, accordiilg to Article 41 of the Statute and Article 73, para. 1, and Arti-
cle 75, para. 3 of the Rules of the Court, to indicate the following provisional
ineasure:
The Government of the so-called Republic of Bosilia and Herzegovina
should iinmediately, in pursuance of its obligatioil under the Convention on the
Preveiltioi-iand Punishinent of the Crime of Genocide of 9 December 1948, talte
al1 ineasures within its power to prevent coinmission of the crime of genocide
against the Serb group." (53, page 213)
"5. Reasons of the Request vis-à-vis International Law.
The so-called Republic of Bosilia and Herzegovina, as the alleged party of the
Genocide Convention, has the obligation under its Article 1 to prevent the crime
of genocide and to punish the perpetrators. However, it is apparent that the so-
called Republic of Bosnia and Herzegovina has beeil, and continues to be, in
breach of the said obligation. It has not prevented the commissioizof the crime of
genocide on the territory under its control."(55, page 4)
2.16. At tlzeend of tlzeoral proceedings of 25 and 26 August 1993the Agent of Yugosla-
via preseiztedsubinissions, requesting the Court a.0.:
"Wisl-iingto protect its rights by making the so-called Republic of
Bosnia and Herzegovina to fulfil al1its obligations concerning the protec-
tion of the Serb ethnic group according tothe Geilocide Convention,
the Federal Republic of Yugoslavia aslts the Court to indicate the follow-
ing provisional measure:
The Goverilment of tlzeso-called Republic of Bosnia-Herzegovina should
iinmediately, in pursuailce of its obligation under tlze Coi~veiztionon the
Prevention and Punishment of the Crime of Genocide of
9 Deceinber 1948, take al1measures within its power to prevent coininis-
sion of the crime of genocide against the Serbethnic group";
2.17. Giveizthe clear and repeated position taken by Yugoslavia, the Court observed in its
Order of 13 Septeinber 1993 :
"25. Whereas in its Order of 8 April 1993 the Court considered that Arti-
cleIX of the Genocide Coilveiltioil,to which botl-itlzeApplicailt and the Respoiz-
dent are parties,(...)"M/ri/tenOhservnriot7.v Page 1 Y
td'Bo.sniurrvidHer-egovina 3 Deceniber 2001
1.e
A/~plicutior7,fbrRevision
Part 11
();.i,qo.vl1:Bos17incrt7l crzegovir7n) A Change qfPositior7
In the following stages of the proceedings Yugoslavia never objected to tl-iisobservation of
the Court uiltil it changed its position in its Application for Revision of 23 April 2001.
2.18. In its Preliininary Objections of 25 June 1995, which would have been tlie proper
iilon~entto deny its being a part to the Genocide Convention, Yugoslavia offered various ju-
risdictional objections, but did not take tlie position that it was not a party to iior bound by the
Genocide Convention. Yugoslavia, 011the contrary, proceeded by submitting counter-claims
in its Couiiter-Men~orial.w1iicl.iwere entirely based on the positioii taken by Yugoslavia that
it indeed is a party to tliis Convei-ition.
2.19. In its Judgment of 11 July 1996the Court, therefore,judged:
"17. The proceedings instituted before the Court are between two States
whose territories are located within the former Socialist Federal Republic of
Yugoslavia. That Republic signed the Genocide Convention on 11 Deceinber
1948 and deposited its instrument of ratification, without reservation, on 29 Au-
gust 1950. At the tieneof the proclanlation of the Federal Republic of Yugoslavia,
on 27 April 1992, a forma1declaration was adopted on its behalf to the effect tliat:
"The Federal Republic of Yugoslavia, continuing the State, inter-
national legal and political personalityof tlie Socialist Federal Re-
public of Yugoslavia. shall strictly abide by al1the cominitinents
that the Socialist Federal Republic of Yugoslavia assumed interna-
tionally."
This iiltention tlius expressed by Yugoslavia to reinain bound by the international
treaties to which tlie former Yugoslavia was party was coilfirmed in an official
Note of 27 April 1992 froin the Permanent Mission of Yugoslavia to the United
Nations. addressed to the Secretary-General. The Court observes, furthesinore,
that it has not been contested that Yugoslavia was pasty to the Genocide Coiiveil-
tion. Thus, Yugoslavia was bound by tlie provisions of the Convention on the date
of the filing of the Application inthe present case, namely, on 20 Marc111993 ."
2.20. The Court, in this saine Judgment, further observed:
"34. Having reached the coilclusioil that it has jurisdiction in the present
case, both rutione persorqueand rutiorzer17ateriue on the basis of Article IX of the
Genocide Convention, it reinaiils for the Court to specify the scope of that juris-
diction rnrionc te~~zporisI.n its sixth and seventh preliminasy objections, Yugosla-
via, basing its contention on the principle of the non-retroactivity of legal acts, has
indeed asserted as a subsidiary argument that, even tliough the Court might have
jurisdiction on the basis of the Convention, it could only deal with events subse-
quent to the different dates on which the Convention inight have becoine applica-Written Ohscwutions Page 20
(?f'Bo,snand Hc~~zegovina 3 Decenzher200/
I'C
Ap/dication,fUr Rciiision Part //
(Yzigo.slaiIJBosnia and Hcrzegoijina) A Change of Position
ble as between the Parties. In tllis regard, the Court will confine itself to the ob-
servation that the Geilocide Conventioil - and in particular Article IX - does
not contain any clause the object or effect of wlîich is to liinit in such manner the
scope of itsjurisdiction ratione temporis, and nor did the Parties themselves inake
any reservation to that end, either to the Convention or on the occasion of tlîe sig-
nature of tlie Dayton-Paris Agreement. Tlie Court thus fiilds tl~atit hasjurisdiction
in this case to give effect to the Genocide Convention with regard to the relevant
facts which have occurred since the begiiming of the conflict whiclî took place in
Bosnia-Herzegovina. This finding is, moreover, in accordance with the object and
purpose of the Convention as defined by the Court in 1951 and referred to above
(see paragraph 31 above). As a result, the Court considers that it must reject
sixth and seventh preliminary objections."
Yugoslavia's
Dayton-Paris Agreement
2.21. Indeed, at the time tlie Dayton-Paris Agreement was negotiated the Genocide Con-
vention was pai-tof tlie deliberatioiîs between the parties. No reservations whatsoever were
agreed upon. 011 tlie contrary the parties explicitly stipulated to respect and guarantee the
1-ightsand freedoms set fort11in inaiiy specific international conventions and agreed to coinply
witlî the provisions of those treaties:
"Article VII. Recognizing that the observance of human rights and the pro-
tection of refugees and displaced persons are of vital importance iil achieving a
lasting peace, the Parties agree to and shall comply fully with the provisions con-
cerning human riglîts set fort11in Cliapter One of the Agreement at Annex 6, as
well as the provisions conceriling refugees and displaced persons set fort11in
Clîapter One of tlîe Agreeinent at Annex 7." (Al501790,Sll9951999)
Tlie Genocide Convention appears as tlie very first Treaty on the list of treaties referred to in
Chapter 1 of the Agreement at Anilex 6. The Dayton-Paris Agreement was concluded in No-
veinber-Deceinber 1995.
Conclusion
2.22. Itis clear from the above, suininarized, history that Yugoslavia kept to a consequent
position regarding its being bound by the same international conventions as to which tlie
SFRY was a party. However, Yugoslavia seems ilow to be trying to. retroactively, make this
cornmitment purely coi~ditiorial.The 'condition' being that other parties to the saine treaties
would have to accept Yugoslavia's view regardii~gits being tlîe sole continuator of the SFRY.M"t-ittet0~A.scrvutions Page 21
of'Bo.rniand Herzegovina 3 December 2001
Y(?
Ap/dicationfi,rRevision
OZ~~oslaviuv. Bossniaand Herzegovina)
Apart froiîî the practical probleins involved in this approach (i.e. I1owmany State parties ac-
ceptin; this condition would be sufficieilt to create an effective biilding, or should al1parties
to a certain treaty explicitly accept the condition before the treaty would become binding to
the Yugoslavia and what would be the precise effect of such a 'conditional membership' if the
condition is ilot explicitly accepted nor re.jected?) there does not seem to be any basis in law
to sustain tlîis position.
2.23. The fact of the matter is that Yugoslavia kept to a position, wlîich may even have
been defendable if the other new States einerging from tlîe former Yugoslavia would -sooner
or later- have been willing to accept it. In otlîer words: the Yugoslavia position could have
t~iriiedout to be the internationally accepted one.
2.24. Iiowever. tlîe latter did iîot n~aterializeand therefore Yugoslavia was wise enougl~to
f~lndamentallychange its position, whicli change was applauded by the international conîn~u-
iiity and wlîich change definitely will help Yugoslavia in the creation of constructive bilateral
relations with other States includiiîg Bosnia and Herzegovina.
1-Iowever,a change in position caiînot have a retroactive effect on international relations if the
retroactivity is not explicitly accepted by other States involved. Bosnia and Herzegovina wel-
coines the mentioned change of position, but does not accept any retroactive effect of tlîis
change as far as tlîe current ICJ-proceedings are coiîcerned. Page 22
C.VriztoOi bservations
of'Bo.vniaund Herzcgoi,ina 3 Deccmher 2001
I'C'
Ap/~licution,forRci)i.sion Parr II
()'iigoslavia1,.Bosnia and Herzcgovina) A Chungc of PositionWrilien Obscri?u/ions
Page 23
of'Bosniu und Herzcgovinu 3 December 2001
I'C
AppIicirtion,f?)rRevision Part III
(Yz~,yo.~/uiv~rosniu and Herzegovinu) Article 61ofthe Statute
PART III
ARTICLE 61 OF THE STATUTE
Introduction
3.1. Ai-ticle61 of the Statute reads as follows:
"1. An application for revision of a judgment may be made only when it is
based upoil the discovery of soine fact of such a nature as to be a decisive factor,
which fact was, when the judgment was given, unl<ilownto the Court and also to
the party claiming revision, always provided tl~atsuch ignorance was not due to
negligence.
2. The proceedings for revisioil shall be opened by a judgment of the Court
expressly recording the existence of the new fact, recognizing that it has suc11a
character as to lay the case open to revision, and declaring the application admis-
sible on this ground.
3. The Court inay require previous compliance with the terms of the judg-
inent before it admits proceedings in revision.
4. The application for revisioil must be made at latest within six montl~sof
the discovery of the new fact.
5.No application for revision inay be made after the lapse of teil years froin
the date of the judgineilt."
3.2. In this Part of the preseilt Written Observations Bosilia and Herzegovina will demon-
strate that the Application for Revision of 23 April 2001 does not meet the criteria set forth in
Article 61 of the Statute.
A previously unknown fact
7 7 Yugoslavia is not exactly clear about the precise nature of tlîefact, as required by
3.3.
article 61, wlîich would provide for the basis for its recourse to article 61. In itself this is ilot
surprisiilg. As follows froin the above Part II, the situation discussed here is not about (theWritten Observations Page 24
ofBo.vnia and Herzegovina 3 December 2001
re
Appliccrtion,for Revision Part /II
(Yz~go.s/uviav. Bosnia and Herzegovina) Article 61 of the Statutc
discovery of) previously unknown facts but about a State changing its position: Yugoslavia
for many years chose to conduct its foreign policy, its international relations and its legal ac-
tions on the basis of the presumption that it would be the sole continuator of Yugoslavia. In
doing so Yugoslavia repeatedly stipulated its intention to remain bound by the international
treaties to whiclî the SFRY was party. Only recently Yugoslavia changed its position and un-
dertook to put an end to the for many years ongoing debate on its ineinbership of the United
Nations by submitting a ineinbership application.
Now that a change in position forms the heart of the matter and not the discovery of a previ-
ously unknowi~fact, Article 61 of the Statute does not corne into play at all.
For this reason alone the Application for Revision should be declared inadmissible.
3.4. Assuining, arguendo, that indeed some fact and not a change of position constitutes
the heart of this matter, then the question arises what exactly would be the relevant fact.
3.5. In its Application for Revision Yugoslavia states:
"The decision of the General Asseinbly of 1Noveinber 2000 finally dis-
niissed the dileminas and uncertainties, and put an end to the theory that the FRY
rnay have been a Member of the United Nations before 1 Noveinber 2000 "con-
tinuing the State, international legal and political personality of the SFRY". A
new fact took shape. The FRY becanle a new Meinber of the United Nations
(clearly iinplying that it was not a Member earlier)." (para. 19on page 26)
Tliere is no basis in fact nor in law for any of the assumptioils made here by Yugoslavia. The
Geileral Asseinbly did ilot proilouilce itself on "the dileminas and uncertainties" nor oii "the
theory that Yugoslavia inay have been a Member of the United Nations before 1 November
2000.". The only thing one can safely assume is that the General Assembly did nothing inore
and notlîing less than what the Legal Couilsel stipulated already in his letter date29 Septein-
ber 1992:
"The admission to the United Nations of a new Yugoslavia uilder Article 4
of the Charter will terminate the situation created by resolution 4711."(see for the
full text of thisetter Annex 9 to Yugoslavia's Application for Revision).
The fact tliat "the situation created by resolution 4711" could be "terminated" was cleasly
known to the Coui-t.At the tiine the Judginent on Yugoslavia's Preliminary Objections was
delivered this very saine "situation" was the prevailing one and, rightly, the Court took its
decision accordingly .M'ritlcnOhscrvations Page 23
c!j'Bo,snr~iu' o-zegovinu 3 Decen~Oer2001
l'c
App/ication,for Revisio~~ PartIII
Article 61 ofthe Statute
(Yugo.slcria. Bosnia ar7dHerzegovina)
3.6. Now Yugoslavia taltes the position that by the decisioil of the General Assembly of 1
November 2000 "[a] ilew fact took shape". Wllatever may be precisely meant here, the deci-
sion of the Geileral Asseinbly does not come near to being a 'ilewfact' in the sense of Article
61 of the Statute of the Court. This provision requires that the factwas "when the judgment
mlasgiveil, uilltnown to the Court and also to the party claiining revisioil"; this iinplies thau
jbrfiori the fact in question actually did exist "wl~entliejudgmeilt was given". Obviously, the
decisioil of 1 November 2000 did not exist on 11 July 1996 and therefore iil itself does ilot
qualifj~for the application of Article 61 ofthe Statute.
3.7. If the Geileral Assembly decision of 1 November 2000 does not coilstitute the new
iàct then, again ar*guendo,Yugoslavia's-not-being-a-member of the United Nations would
have to be the ilew fact on which the Application for Revision is based. This also seems to be
Yugoslavia's approach in para. 23 of its Application for Revision, where reference to this is
inade by calling t11i.s"an unequivocal fact.'. However -apart froin the fact that Yugoslavia's
,?on-il-iembershipfroin 27 April 1992 uiltil 1 November 2000 has not as such been estab-
lished- it is not possible to coilstrue tllis as a previously unluiowil fact (unltnown to the Court
and ais0 to the pai-tyclaiming revision). Yugoslavia lias at al1relevant tiines beei~well aware
of the debate about its inembership, during which debate many States, ainong them Bosilia
aiid Herzegovina, toolt the position that Yugoslavia should apply for membersl~ip of the
IJnited Nations (see Part IIabove, see also General Assembly Resolutioil 4711 (1992), UN
Doc. AIRES/47!229 (produced as Ailnex 7 to Yugoslavia's Application forRevisioi~)).
3.8. One inay loolcat tl~isin various ways:
Assuinii~gthat Bosilia and Herzegovina at the tiine, indeed, was riglît in assuiniilg
that Yugoslavia was ilot (yet) a member of the United Nations (see its letter to the
Secretary Geileral of 25 September 1992(A147/474),Annex 22). then the position
talcen by Yugoslavia ilow, which comes down to a mere statement "after al1you
(Bosnia and Herzegovina) were riglît and 1(Yugoslavia) was wrong" does not cre-
ate a new fact.
Assuming that Bosnia and Herzegovina at the time was iiot right and that Yugo-
slavia was, iildeed, oilly prol~ibitedto participute in the worl<of the General As-
seinbly, wl~ichis to be distinguished froin inembership termination or membersl-iip
suspension. then the "new fact" claiined here by Yugoslavia (the alleged not-
beiilg-a-member of the UN) indeed did ilot occur.
Assumiilg that the situation was, indeed, objectively uilclear and could have beeii
resolved in various ways (one of thein being Yugoslavia's applyiilg for member-
sl~ip)then, indeed, al1parties involved were entitled to act upon the"intention thus
expsessed by Yugoslavia to remaiilbound by the international treaties to wl~ichtheWritten 0bseri)alions Page 26
ofBosnia and Herzegovinn 3 Decernber2001
re
Application,fOr Revision
(Yugoslui~iaii.Bost7iaaf7dHe~*zegoiiina) Part II1
Arficle 6ofthe Statute
former Yugoslavia was party" as was concluded by the Court in its Judgment of
11 July 1996 (para. 17; see further Part IV below). It is this intentioil, to which the
Court explicitly referred rather than to issues regarding Yugoslavia's being or not
being a Member of tlie United Nations. 111 other words the Court did not base its
Judginent onjurisdiction on any fact related to UN-Membership questioils.
Whatever assumption one would prefer, the conclusioil for al1of them is the same: there is no
"ilew fact" as envisaged in Article 61 of the Statute on which a11Application for Revision
could effectively be based.
3.9. Not only Yugoslavia -as "the party claimiilg revision"- was at al1 relevant times
aware of the debate on its ineinbersliip of the United Nations, to the Coui-tthis debate was not
~inki~own either. Already in its Order of 8 April 1993 the Court gave ample attention to the
inembership issue (paras. 14-18). It even considered that "the solutioil adopted is not free
froin legal difficulties" (para. 18). However, this "knowledge" of 8 April 1993did not prevent
the Court in its Orders of 8 April 1993 and 13 September 1993 to base its yrima.facie juris-
diction on Article IX of the Genocide Conveiltion, nor did it prevent the Court in its Judgment
of 11 July 1996 to base its definitive jurisdiction on Article IX of the Genocide Convention.
The same was true in the Court's Orders of 1999 delivered in Yugoslavia'scases against sev-
eral NATO-States (see further below in Part V).
3.10. Whatever way one may look atthis, the situation that occurred in no way cal effec-
tively be construed as a fact, which "was, when the judgment was givei~,uilknowil to the
Court and also to the party claiming revision".
"Ignorance not due to negligence"
3.11. The "ignorance" mentioned iil para. 1 of Article 61 of the Statute obviously oilly
i-efersto ignorance at the side of "the party claiining revision". If this ignorance cornes into
play here at al1- which is most probably not the case since the details and peculiarities of the
situation were not unkllowii to the parties nor to the Court (see above, Part II and also paras.
3.3.-3.10.)- this ignorance at the side of Yugoslavia certainly was "due to negligence". Yugo-
slavia, knowing that its positioii was not accepted by a inajority of the General Asseinbly,
stuck to its position and bluntly refused to change this position until it drastically clianged its
government in the fa11of 2000. The leilgth of the period of "negligence" is reflected in the
very letter through which Yugoslavia requested its admission to the United Nations:I.t/~,iObseri~atiot7.r Page 27
oj'Bosnia und Herzegoilina 3 Decemher 2001
1.e
iI/~plic~~rfioorevisioti Parf 111
(Yi~gos/ul~1~Bo.s~?iatid Herzegoi~ir7u) Article(51ofthe Statute
". ..1have the honour to request the admission of the Federal Republic of
Yugoslavia to the United Nations in ligllt of implementation of the Security
Council Resolution 777 (1 992)" (see Annex 23 of the Application for Revision).
Only in the fa11of the year 2000 Yugoslavia has talten to "iinplement" a Security Council
Resolution adopted in September 1992.This belated "iinplementation" cannot be involted as a
'new fact' by the very pa-ty who would have done better to take due account of tlîis Resolu-
tion iini~~ediatelyafter it became l<nownto it, i.e. on 19 Septeinber 1992.
3.12. Here a situation siinilar to the onejudged by the Court iilthe Tunisian case occurs:
"The Court inust therefore conclude that in the present case, the fact tlîat the
OW~ interests to ascei-tainthein, together signify that one of the essential condi-
tions of adnlissibility of a request forrevision laid down inparagraph 1 of Article
61 of the Statute, namely ignorance of a ilew fact not due to negligence, is lacl<-
ing". (coilcession boundary CO-ordinateswere obtainable by Tunisia, and the fact
that it was in itsApplicalion,for Revisiov~und Intelyretution qf'the Judgement of'
24 Feb1.tlar.y1982 in the Case concerning the Contiriental Shelf (TunisiaILibyail
Arab Jamahiriya) ( Tunisia v. Libyan Avab Jamahiriya), Juu'genzent,I.C.J. Re-
port.~,1985,pp. 206-207, para. 27)
Here also the essential condition referred to by the Court is laclting.
"Discovery" of a previously unknown fact
3.3. Changing ones position, is by no means equal to discovering soine previously un-
I<nownfact. Deciding. in the fa11of 2000, to comply with the guidance provided in a Resolu-
tion adopted in September 1992 is by no rneans equal to discovering sonle previously un-
Iiiiown fact. 111this case no previously u~~l<~~ofw ants were to be "discovered", but Yugosla-
via was called upon many times from 1992 onwards to take a position that would be accept-
able to itsileighbours and to the n~a.jorityof the General Assembly.
Yugoslavia's belated response in no way constitutes a "discovery" of a previously unknown
Iàct.
"A decisive factor"
3.14. If' Yugoslavia, while subinitting Preliminary Objections, would have claimed that at
for this case relevant tiines it was not a party to the Genocide Convention this rnight have
been a decisive factor with regards to the jurisdiction of the Court. However, not only didMi,-i/ren0bservation.s Page 28
cfBosnia and Hcrzegovinu
3December 2001
I-c
Appliccition,fi)r Revision Part 111
(Yzt,~oslavi12Bosnia and Herzegovintrj Article 61ofthe Statute
Yugoslavia never do tl~at,even within the context of its preseiit Application for Revisioil
Yugoslavia's proposition is entirely coilstrued upon its stating that at for this case relevant
tiines it was not a Member to the United Nations and, therefore, not a party to tlie Statute of
tlie Court. Whatever tlie inerits or relevance of that position inay be, in itself tl~isposition
does 11ots~ifficeto deinonstrate that, for those reasons, Yugoslavia was -01111 Suly 1996- not
bouiid to the provisioi~sof the Genocide Conveiltioil including Article IX. For one thing its -
recent- position regarding its UN ineinbersliip does not talte away tlie validity of the Court's
conclusioil with regards the "intention thus expressed by Yugoslavia to remain bound by tlie
iilternational treaties to which the former Yugoslavia was party" (Judgment of 11 July 1996,
para. 17; see also Part IV below). In other words, the (recently changed) positioil of Yugosla-
via regarding its ineinbership of the United Nations or regarding its being a party to the Stat-
ute of the Court canilot be considered as a decisive factor as envisaged in Article 61 of tlîe
Statute with regards to the jurisdiction of the Court (see also Part V below). This is further
deinoiîstrated by the fact tl~at,rightly so, the Judgment of the Court of 11 July 1996 did not
depei-idon these circumstailces eitl~er.
Prescription of six months
1. Paragraph 4 of Article 61 of the Statute provides for a prescription period of six
inoi~thsafter the discovery of the iîew fact. Now that the Application for Revisioi~was sub-
initted 017 23 April 2001, the 'discovery' must liave talteil place after 23 October 2000 for this
Application to be admissible.
3.16. Since Yugoslavia appareiltly talcesthe position that its 'discovery" that it was not a
member of the United Nations from 27 April 1992 onwards provides for the basis of its Ap-
plication for Revision, the day on which tllis becanle Yugoslavia's position is tlîe relevant
date for tlie six inontlis period. The letter of tlie President of Yugoslavia requestiiig admissioil
to the United Nations was sent on 27 October 2000 (see Aililex 23 to Yugoslavia's Applica-
tion for Revision). It is eiltirely unlikely that the 'discovery' tookplace (only) on tlie saine
date or. for tl-iatmatter, only in the few days before the 27"'.This is not only unlikely, but tliis
was, iildeed. ilot the actual case.
5.1 7. The Prograin of the Democratic Opposition of Serbia, wliose leader was tlie preseilt
President of Yugoslavia, Vojislav Kostunica, included the followiilg sectioii:
"
The First Year ofthe New Government
1. Retui-nof Yugoslavia and Serbia to the world
Inclusioiliilal1relevant iilterilationaliilstitutioils.wllicliwillWrirle~Uh.servutio~is Page 29
of'Bosniu and Herzego1,ina 3 DecemOer2001
1.e
.4/~l~licutionRei~ision Part 111
()'~~gos/uii.Rosnia ntîd Herzegoi)ina) Article 61 ofthe Stalute
provide iinmediate lifting of al1sanctions, including the so-called "outer
wa11"of sanctions
Immediate inclusion of Yugoslavia and Serbia in the Stability Pact
for SouthEast Europe and access to important fiilancial means for
reconstruction and economic recovery of the country, secured by a regional
fiindiilgconference
Renewal of meinbership in the inost iinportant international
fiilailcial organizations (thIMF, the World Bank), which will enable ail
access of Ourcountry to the world capital market and create conditions
for serious foreign investments, essential foran economic reconstruction
of the country
Swift solution to the issue of succession with former Yugoslav
republics and the acquisition of relevant finance on these bases
Start-up of negotiations for the EU associate mernbership, entry to
al1relevant regional iiltegrations, and free trade with SouthEast European
countries
Ad.justmentof econoinic legislatioi~to prevailing world standards. (Source,
Iniernet, seeAnnex 23)
This program is dated September 2000 (the electioils took place on 24 Septeinber 2000) and
clearly refers to theileed to become a fully fledged inember of the United Nations. This was
also stressed -011 1 Septeinber 2000- by Presidential candidate Kostunica in a speech wl~icl~
11edelivered on 1 September 2000:
"1pledge iny word that,
if you elect me presideilt of theFRY, (...)
1sl-iallmalte every effort persistently and patiently to see Ourcountry a ineinber of
the OSCE, as one of those that created it, and rejoin the United Nations and leading
world financial institutions." (SourceInternet, see Aiinex 24)
This was fi~rtherclarified and stressed by,the elected, President Kostunica in early October
2000 as is deilîonstrated in the News Analysis of the Media Center Belgrade:
LLAQUICK RETURN TO THE UN (10/09/2000)
SiizcePresident VojislavKostunica has expressed readiness to
apply for inembership in the UN, the question of our status
could be resolved in oneday. After tliat could coine membership
in theIMF and the establishing of relations witlî.other
fiilailcialinstitutions, says Ljubisa SeltulicanalyzinUN
Secretary C;eneralKofi Annan'scal1on FRY to apply for
meinbership
The speed with which Yugoslavia will become a member of the
United nations now depends only on the country itself.Writtcn Oh.~ervaitons Page 30
of'Box~iaand Herzegovinu 3 DecenzOer2001
TC
A/7plica/ion,fhr Rei)ision Purt 111
().'z~,yo.sicrBosnia und Herzqgoi~ina) Article 61 of'tl7eStatute
After Vojislav Kostunica was elected president, UN Secretary
General Kofi Annan called on FRY to apply for membersliip.
Kostunica'sposition is that FRY should do so. It is well
ltnown that the former governnieiit refused to apply for
inembership, insisting on continuity with SFRY.
Since tlieUN GeiieralAsseinbly is currently in session, the
procedure of FRY'Sacceptance could be completed very quickly.
A session of the Security Council, which can meet at any tiine
of day and niglit would come first, and then the matter would
be handed to the General Assembly that couldbring a
Resolution 011acceptiiigFRY into UN membersliip the same day.
The American ambassador to the UN Richard Holbrooke has
already stated tliat there will be no problems if FRY appeals
to that orgaiiization for membership. Montenegro'srole in this
matter will be of no great importance.
Yugoslavia'sinembership in tlie UN would sigilify Ourreturn to
tl~einternational cominunity. (...)" (Source, Interilet, see Annex
25)
Ti içclear that tlie "discovery" of the "new" fact took place long before the Xrd of October
2000, wl1ic11 means tliat tlie Application forRevision does not meet tlie prescription period of
six nlonths, as required by paragraph 4 of Article61 of tlie Statute of the Court.
Conclusion
3.18. The following conclusions are to be drawn from the present Part:
i. Since the circurnstailces on which Yugoslavia bases its Application are to be de-
fined as a mere change of position Article 61 of tlie Statute is not applicable with
regards to Yugoslavia's Application. Tlzerefore,tlie following conclusions inay
only be reached in a subsidiaïy mode.
il. The situation that occurred, in no way cal1effectively be construed as a fact,
wl~ich"was, when the judgment was given, unluiownto tlie Court and also to tlie
party claiming revision".
111. The "ignorance" inentioned in para. 1 of Asticle 61 of the Statute certaiilly was
"due to negligence" at Yugoslavia's side.Wrlllcn Ob.servutiof7s
IJ/Bo.sniurrndHerzegoijinu
rc'
A1~/~lic~ltioiiRrevi~ion Part 111
0'ztgo.vluij1)Bo.st7iuutid Herzcgovina) Article 61of theStatutc
iv. Yugoslavia's belated response to the Security Council Reso;ution of September
1992 in no way coiistitutes a "discovery" (in the seilse of para. 1 of .4rticle 61 of
the Statute) of a previously unkilowil fact.
v. The circuinstances involted by Yugoslavia are not to be considered as a "decisive
factor" as foreseen in para. 1 of Article 61 of the Statute. Tliis also follows from
the fact that the J~idgmentof the Court of 11 July 1996 was not based on the
(non-) existence of the circumstances iilvoked by Yugoslavia.
vi. In subinitting this Application for Revision Yugoslavia has not complied with
para.4 of Article 61 of the Statute, w11icl.p irovides for a six months' period of
prescription.
Thereiore, the Yugoslav Application for Revision does not fa11witl~inthe terms of
Article 61 of the Statute of the Court, while in any event none of the conditions of
Article 6 1 of tlie Statute are met.IY~,i/tenOhseniatiom
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Applicutioti,for Revision Part III
(Yugoslrriiiail.Bosnlu and Hei-egovina) Article 61 of the StatuteW1-iffcObscrvufions Page 33
(?f'Bosniaand Herzegovina 3 Decernber 2001
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.4/1/~licution,fbvRevision PartIV
(Yz~go.slu~~'.i osnia and Herzegovina) Yugoslavia ignores ifs own behaviour
PART IV
YUGOSLAVIA IGNORES ITSOWN BEHAVIOUR
AS A DECISIVE FACTOR
Introduction
4.1 In Part II of these Written Observations, Bosnia and Herzegovina has emphasized
two of the iliain features ofthe present case:
-,fir.~t.tliat, at the tiiiie of the Court's Judgment of 1 July 1996, the status of Yugo-
slavia in the United Natioiis was, if i-iotdebatable, at least debated and, certainly, as tlie Court
noted in its Order of 8 April 1993,was "not free from legal difficulties" (ICJ Rep. 1993, p. 14,
para. 18); and,
- second, that, in spite of tliese difficulties, or, as the Yugoslav Application,for Revi-
.sio/7110~' puts it (see e.g.: p. 10, para. 7 and 8 or p. 26, para. 19) of these "uiicei-tainties",
Yugoslavia .firinly maintained, uiltil very receiltly that it was the oniy "contiiluator" of the
lbrmer SFRY - an opinion that Bosnia was iiot less coiisequeilt iiiclialleiîgii~g.
4.2 As stated il1the A~~plicutiorz,fbRrevision itself: "The postulate of continuity was con-
sistently iilaintaiiled and reiterated by the former Goverriment of the FRY" (p. 6, para. 5; see
also p.4, para. 4 or pp. 24-25, para. 18),while "[tllie FRY'Sclaim to coiitinuity was consis-
teiitly denied by other successor States of the foriller SFRY" (ihid., p. 7, para. 6). In the pre-
sent proceedings, the Claimant now declares tllat "[alfter the FRY was adinitted as a ilew
Member ail 1Nove~nber2000, the dilemlilas liave been resolved, and a period ended in wliich
contradictory iildications allowed differeilt iilterpretatioils" (ihid., p. 26, para. 19). 111otlier
words, Yugoslavia avails itself of its own mistalte in order to question the validity of the 1996
Court'sJudginent and to request its revision.M/I.itt0b.so.i~itions Page 31
c?f'Bosniaund Herzegoi)inn 3 Decenzber 2001
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A/~pliculio/i,forRevision Part IV
(I'zigo.rlru1Bo.s/iiaand Herzegoi~ina) Yugoslaviaignores itO M Oehuviour
4.3 As Bosnia and Herzegoviila has shown in the previous Part of this Statemeilt, sucli a
change of position (whiclî is perfectly respectable in itself) cannot be considered as "the dis-
covery of soine fact as to be a decisive factor" for requesting the revision of a judgmeiît in
applicatioii of Article 61 of the Statute.
4.4 The purpose of the preseilt Part is to show tliat, under more general principles of in-
ternational law, suc11a position cannot be accepted either. In full ltnowledge of the "uncertain-
ties" or "dileminas" it now alleges, Yugoslavia has maintailied before the Court's Judgment,
during tlie pleading, and after the Judgment, that it was both a Member of the United Nations
(and, thesefore, a Party to the Court's Statute), and a Party to the Genocide Convention and,
iilore specifically, it has also acquiesced in the jurisdictioil of the Court under Article IX of
tlie Convention. It caniiot retract its former acquiescence and this acquiescence is not ques-
tioned by the so-called "new fact" it now involtes.
Yugoslavia has declared to be a Member of the United Nations and a Party to the Geno-
cide Convention
4.5 111its Application ,forRcvision, Yugoslavia exposes, rightly, that it lias consisteiitly
maiiltained that it was the coiîtinuator of the fornier SFRY and, as such, a Member of the
United Nations and a Party to the Genocide Convention (see e.g. pp. 4-6, para. 4 and 5; see
also p. 1.3,para. 9). However, it claiins that, since 1 Noveinber 2000, the date when it was
adinitted in the United Nations, it "becarne clear that from the moment the FRY was coiisti-
tuted oii 27 April 1992, until 1 Noveinber 2000, the FRY was not a Meinber of the United
Nations, it was not a State party to tlie Statute, and until 8 Marc112001 it did not accede to
inembership of the Genocide Coilvention" to which it acceded at that date without accepting
Article 1X (ihid, p. 50, para. 37). This iiew situation would retroactively apply and the Judg-
ment of 1 1July 1996 sl~ouldbe revised accordiilgly.
4.6 This coiiclusion cannot be accepted for numerous reasons. One of thein is that Yugo-
slavia's readmission to the United Nations 011 1 Nove~nber2000 does not necessarily ineaii
11oriinply that it was 11ota Meinber before that date. Moreover, in so doing, Yugoslavia com-
pletely ignores its own behaviour. Not only is tliis clearly inconîpatible with the requirement
in Article 61 of the Court's Statute tliat the ignorance of the new fact alleged as a grouild for
revision of a judginent be "not due to negligence" (see above, para. 3.11.-3.12), but also tliis
claim taltes 110accouilt of the rules of general iliterilational law relating to acquiescence which
stem from the general principle of goodfait11in international relations.\.tJriltOhserva/iol~s Page 35
ofBosniu ui7dHerzcgovina 3 December 2001
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A/~pliccrfion,firRevision Part/C'
O'z~go.sloi:J.Bo.vniuund Herzegoi:iria) Yugoslavia ignores ilOMM behaviour
4.7 Whatever might have been tlie legal status of Yugoslavia at the tiine the Judginent
was inade. this State was, and still is, bound by its own statements. Suffice it to recall in tliis
respect tlie fundamental principle authoritatively exposed by Vice-President Alfaro in the
separate opinion lie appended to the 1962 Judginent of tlie Court in the case concerning tlie
T~n7pIeof Preah T/il7ear:
"Wliatever term or terms be employed to designate this principle such as it
lîas been applied in the international sphere, its substance is always the same: in-
consistency between claims or allegations put forward by a State, and its previous
conduct iii connection therewith, is not admissible (allegans contraria non audi-
cndus est). Its purpose is always the saine: a State must not be permitted to benefit
by its own iiiconsisteiicy to the prejudice of another State (nemo potest mutare
con,rilium.sul.rnz in alterius injuriam). ... Finally, the legal effect of tlie principle is
always the same: tlie party wlîich by its recognition, its representatioii, its declara-
tion. its conduct or its silence has iiîaintained an attitude manifestly contrary to tlie
riglit it is claiming before an international tribunal is precluded from claiining tliat
right (ilenire cor7lrufucturnproprium non i~ulel).
"The acts or attitude of a state previous to and in relation with rights in dis-
pute with aiiotlier State rnay take the form of an express written agreeinent, decla-
ratioil, representation or recogiiition, or else tliat of a conduct wliich implies con-
sent to or agreement witll a determined factual or juridical situation" (ICJ Rep.
1962, p. 40; see also Sir Gerald Fitzmaurice's separate opinion, ibid. p. 63; see
Arbitral Award, 9 Deceinber 1966, Andean Border, RIAA XVI, p. 164).
4.8 As the Court itself explailied in its celebrated dictuln in the Nuclcar Tests cases:
"It is well recognized that declarations made by way of unilateral acts, con-
ceriiing legal or factual situations. may well have the effect of creating legal obli-
gations. Wheii it is tlie intention of the State inaltiiig the declaration tIiat it should
become bound accordiiîg to its terms, that intention coiifers on the declaration tlie
cliaracter of a legal undertalting, the State beiiig thenceforth legally required to
follow a course of conduct consistent with the declaration" (Judgineilts, 20 De-
ceiiiber 1974, Austr.alia i~France, ICJ Rep. 1974, p. 267, para. 43; New-Zealand
11 Fr~rizce.ihid., p. 472, para. 46; see also PCIJ. Judgrnent, 5 April 1933, Legcrl
Stc/triof Eastern Greenland, P.C. I.J.,Series AIB, No. 53, pp. 68-69).
4.9 Iii Part II of the preseiit Stateinent, Bosiiia aiid Herzegovina lias already quoted a
nunîber of unainbiguous declaratioiis by which Yugoslavia admitted tliat it was a Member of
tlie United Nations and a Party to the Genocide Convention and Yugoslavia does not clial-IVritlen0b.verijatioiî.s Page 36
c!f'Bo.sniuand Herzegoirinu 3 December 2001
1°C
Ap/~licurion,forRcvision Part II'
(Yz~~r,.o.sl1iBosnia and Herzegoi~ina) Yugoslavia ignores itOM:~ behuviour
lenge tliis obvious fact. Wliat it does, liowever, is to claim that it inade these declarations 011
the assuinptioii that it was the contiiiuator of the former SFRY. But this is irrelevant for tlie
preseiît case. For two main reasoiis.
4.10 First, there is 110doubt that, al thepresent date, it is clear that Yugoslavia is a Mem-
ber of tlie United Nations aiid a Party to the Court's Statute and to tlie Genocide Coilvention
not as tlie coiitinuator of the foriner SFRY but as one of tlie successors of tliis State, ainong
otliers. But, as stressed by Yugoslavia itself, at the tirneof theJzrdg~nent,tlie situation was not
as clear and, for exainple, political decisions could have been made (and accepted by al1inter-
ested parties) in an opposite direction. The Court could only decide in accordance with the
situation prevailiiig tlien and could talie at face value the declaratiolis made by tlîe Yugoslav
Party.
4.11 Second, mistalie is 110 excuse in iilteriîatio~iallaw. 111tlie case coiicerning the Temple
of Prcah LJihear.Thailand involied, in its preliminary objectioiîs, an error it would have coin-
initied wheiî it niade its optional declaratioil in 1950, in view of the 1959 Judgment of tlie
Court in tlie Isruel 17.Bulgaria case. Iliits Judgment of 1961 011 tlie prelimiilary objections of
Thailand, tlie Court could not "see in tlie preseilt case any factor which could, as it were ex
lîost and retroactively, impair the reality of tlie consent Thailand adinits and affirms she fully
inteilded to give in 1950" (ICJ Rep. 1961, p. 30). Siinilarly, in the present case, the events
whicli tooli place in 2000 can certainly not impair the reality of tlie declarations inade in the
early 1990s by Yugoslavia.
4.12 Still in tlie Tcr~yîlecase, at the iiierits stage, the Court also recalled:
"Ttis an established rule of law that the plea of error cannot be allowed as an
eleineiît vitiating consent if the party advaiiciilgit coiltributed by its owii conduct
to tlie error, or could have avoided it, or if tlie circumstances were such as to put
that party on notice of a possible error" (Judgment, 1 5 June 1962, ICJ Rep. 1962,
p. 26).
The applicability of tliis priilciple in the present case is clear: to Say tlie least, the circuin-
starices were such as to put Yugoslavia oiî notice of tlie error it now involtes. It certainly could
have avoided it, and it clearly contributed to it by its own conduct.
4.13 The inescapable conclusioii of this situation clearly is that, having proclaimed that it
was a Member of tlie United Nations and a Party to the 1948Coiîveiition, Yugoslavia caiînot,Witten Oh.scri!utio~.s Page 37
O/Bosnia aiid Hcr-sgovina 3 Deccmber 2001
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,4/?/?lict/tiorrei~i.riori Part IV
()'rr,yo.vlt:cBosniu urid Herzegoi~inai Yz~yoslaviaignores its own behaviour
five years afier tl-ieJudgment it puts in question was given, declare that, al1things considered,
it was wrong and did not appreciate the legal situation rightly.
4.14 Strictly spealting. it is probably not useful to refer to the doctrine of estoppel. As ex-
plained by Sir Gerald Fitznlaurice in the Temple case:
"... in those cases where it can be show11that a party lîas, by conduct or otlierwise,
undestalteil, or becoine bound by, ail obligation, it is strictly not necessary or ap-
propriate to invoke any rule of preclusion or estoppel, although tlîe language of
tl~atrule is, in practice, ofteil einployed to describe the situation. Thus it may be
said that A [Yugoslavia in the present case], havirig accepted a certain obligation,
or llaving become bouild by a certain instrument, cannot now be heard to deny the
fact, to 'blow hot and cold'. True enouglî, A cannot be heard to deny it: but what
tliis really illeans is siinply that A is bouiîd, and, being bound, canilot escape from
the obligation merely by denying its existence" (IC.1 Rep. 1962,p. 63).
4.15 However, in the preseilt case, the conditions for an estoppel in the strict seilse are
f~ilfilled.Not oi11yis Yugoslavia precluded from denying the applicability - at the relevant
tiine - of the Geilocide Convention, but also this acceptance has caused Bosnia and Herze-
govina. in reliailce of suc11conduct, to talte this position into account in its legal argument
(cf ICI. Judgrnent, 20 February 1969, North Sea Continental Shelf; ICJ Rep. 1969, p. 26:
para. 30; see also, e.g.: D.W. Bowett, "Estoppel Before Internatioilal Tribunals and its Rela-
tion to Acquiesceilce'', B.YB . .I.L.,1957,pp. 176-202, especially at p. 177: "The rationale of
estoppel is expressed in the inaxiin ulleguns contraria non audiendus es/; its essential aiin is
io pseclude a party from benefitiilg by its own inconsistency to the detriment of anotl~er
party who Ilas iil good fait11relied upon a representation of fact made by the former party";
os p. 188: "By tlîe rule precluding inconsistent positions a party will be estopped from talc-
iilg up a position on the fact of an issue inconsistent witl~that 11e11aspreviously talcen up on
the salile issue").
4.16 111the preseilt case, bot11Bosnia and Herzegoviila and the Court itself placed reliailce
on Yugoslavia's assertions.
4.17 Thus. as early as 1 April 1992. Bosnia and Herzegovina subrnitted "that the runlp
Yugoslavia has clearly expressed its intention to be bound by the teriils of the Geilocide Con-
vention without reservation" (CR 93/12, p. 25, (Mr. Boyle). 111 its Mernorial,Bosnia and Her-
zegovina showed that "Yugoslavia (Serbia and Moilteilegro)would also be bound by tlîe Con-
vention if it were considered as a 'coiltiiluator'of the former SFRY" (pp. 166-168, para.LYI.i/tenOhsc.nmiion.s Page 38
c?f'Bo.snLIM~He~egoi~ina 3 Decenzber2001
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(Y~rg«.sluviiBosnin und Herzegovinn) l'ugoslaviaignores its own behaviour-
4.2.2.24to 4.2.2.31). Eveii inore precisely, it indicated: "In the preseilt case, Yugoslavia (Ser-
bia and Montenegro) made clear that it considered itself bound by the Genocide Convention
and tliat it considered tliat the Court has j~u-isdictionon the Basis of Article IX of said Coii-
vention. It ison the hasis of this ussumption - und only on the busis of this a.ssumption,tliat, in
the preseilt Meinorial, Bosiiia and Herzegovina focuses exclusively on tliis title of jurisdic-
tion" (p. 157, para. 4.2.2.7, italics added; see also, e.g., pp. 160-161, para. 4.2.2.12). Aiid,
duriilg tlie Iieariiigs oii tlie preliininary objections of Yugoslavia, Counsel for Bosnia and
Herzegovina declared: "La Yougoslavie n'a jamais nié être partieà la convention sur le
génocide etest tenue au respect de ses normes; aussi:je considérerais ce pointcomme acquis"
(1 May 1996, CR 9619, B. Stern, p. 13).
4.18 Tlie Court'sJudgmei~tis based on the same assumptioii:
"Tlie proceedings iiistituted before the Court are between two States whose
territories are located within the former Socialist Federal Republic of Yugoslavia.
Tliat Republic sigi~edthe Geilocide Convention on 11 Deceniber 1948 and depos-
ited its instruinent of ratification, without reservation, on 29 August 1950. At the
time of proclamation of the Federal Republic of Yugoslavia, on 27 April 1992, a
forinal declaration was adopted on its behalf to the effect that:
"The Federal Republic of Yugoslavia, coiltinuing the State, international le-
gal and political personality of the Socialist Federal Republic of Yugoslavia, shall
strictly abide by al1the coininitinents tliat tlie Socialist Federal Republic of Yugo-
slavia assuiiled iiiternationally"
"This iiiteiition thus expressed by Yugoslavia to reinaiil bound by the inter-
national treaties to which the former Yugoslavia was party was coilfirmed in an
official Note of 27 April 1992 from tlie Permanent Mission of Yugoslavia ad-
dressed to tlie Secretary-Geileral. The Court observes, fui-thermore,that it has not
been contested that Yugoslavia was party to the Genocide Convention. Thus,
Yugoslavia was bound by the provisioiîs of tlie Conventioi~on the date of tlie fil-
ing of tlie Application intlie prsent case, nainely, on 20 Marcli 1993" (ICJ Rep. p.
610. para. 17; see also, Joint Declaration of Judges Shi and Vereslichetin, p. 632
or Judge Sliahabuddeeii'sseparate opinion, p. 636).
4.19 It is tlierefore evideiit that, wlietlier oii the ground of estoppel or on the basis of the
more general priiiciple of good faitli, Yugoslavia is precluded to involceits owii "inistal<e"in
interpretinç tlie legal situatioii and, wliatever the reasons for this change ofopinion, it is cer-
tainly not a ground for requesting a revision of the Court Judgment of 1996. Pur.11'
Yugosluviu igr~oitsown hehai~iour
4.20 It is also ofoine interest to note that, after the 1996 Judginent (but before its admis-
sion or readinission in the United Nations), Yugoslavia prevailed itself of its quality of party
to the Genocide Convention.
4.21 On 26 April 1999, Yugoslavia made a declaration recognizing the coinpulsory juris-
diction of the Court pursuant to Article 36, paragrapl~2, of the Statute of the Court.
4.22 On 29 ,4pril 1999, Yugoslavia filed ten Applications instituting procedure agaiilst teil
Members States of NATO in the cases conceriling Legality of Use of Force. In al1 of then1
Yugoslavia claiined to fouiid the jurisdiction of the Court on ArticleIX of the Genocide Con-
vention and, on the occasion of its requests for the indication of provisional measures, it pre-
bailed itself of its membersl~ipin the United Nations (Orders of 2 June 1999. Belgium, para.
32; ('LIIIU~L p,ra. 31; Netherlund.~,para. 32; Porttigc~l,para. 31; Spain, para. 27 and United
~i11~qdo1p 11.a. 27). The Court did not consider this question, but it noted that it was i~otdis-
puted tliat Yugoslavia as well as the Defendant States were parties to the Genocide Conven-
tion without reservation". (Belgium, para. 37,Canada, para. 36;F~ance, para. 24; Gevitzany.
para. 24: Italy. para. 24; ATetherlar~dp,ara. 37; Spain, para. 29; United Kingu'onî,para32 and
United S'talesofAn.îerica,para. 2 1).
4.23 Beiilg liinited to "al1disputes arising or wliiclî may arise after the signature of the
present Declaration", the Yugoslav optional declaration is iiot a ground for jurisdiction in the
preseiit case. However, it clearly shows, and the posterior proceedings coilfirin, that, still three
years after the 1996 Judginent, Yugoslavia was prevailing itself of its quality of party to the
Court's Statute and to the Genocide Convention. It might be eiltitled to change its mind for the
future; it is certaiilly not with regard to the past events, iilcludiiig the Judgment of 1996.
Yugoslavia has acquiesced in the jurisdiction of the Court on the basis of Article IX of
the Genocide Convention
4.24 While it accepts that it inaiiitained, uiltil very receiltly, that it was bot11a Member of
the United Nations and a party to the Genocide Conveiltioil (see para. 4.5 above), Yugoslavia
omits to recall that, during the procedure before the Coui-t,it also clearly admitted that the
International Court had jurisdiction in the case introduced by Bosnia and Herzegovina on the
ground of Article IX of the Genocide Convention.IVril/cOb.~crvations Page 40
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Ap~dication,for Revision Part 1T.'
(1'z~go.sla~r.Bosnia and Herzegovina) Yugodavia ignoresitown Dehaviour
4.25 Tl~us,as soon as in its inemorandum of April the 1st. 1993, "the Goverilment of the
Federal Rep~iblicof Yugoslavia" availed itself
"of this opportuility to inforin the Court that it does not accept the cornpetence of
the Court in any request of the Applicant which i.routside the Convention on the
Prcvention und Puni.rhrnentof the Oinze of Genocide" (italics added).
This clearly nleans that, ucontrurio, it admitted the coinpetence of the Court withiil the limits
of this Coiîveiltion.
4.26 Siinilarly, during the oral hearings relating to theinteriin ineasures requested by Bos-
nia and Herzegovina, Professor Roseilile,then acting Agent for Yugoslavia, stated, on 2 April
1992:
"The Federal Republic of Yugoslavia does not consent to any extension of the ju-
risdiction of tlîe Court beyond what is strictly stipulated in the Conveiltion itself'
(CR 93/13, p. 16);
".. to the extent that ArticlIX of the Conveiltion supplies a basis for the jurisdic-
tien of the Court, that jurisdictioil is liinited to events u7hicl.ioccurred after the
participatioil of Bosnia and Herzegovina in the Genocide Convention became ef-
fective"(ihid p..,4);
"it [Yugoslavia] is not an unwilling Respondent as that expression is frequently
used, because as 1have iizdicatedwe do tllinlt that the jurisdictioil of the Court is
liinited, but we are prepared to continue to litigate the case within the liinits of the
jurisdiction as we understand it" (ibid.,p. 54; see also Second Request for the In-
dication of Provisional Measures, 26 August 1993, CR 93/34, p. 48 (Mr.
Roseilne)).
4.27 And, on 9 August 1993, Yugoslavia requested the Court to order interiin ineasures on
the grouild of the 1948 Coilventioil.
4.28 This was a clear acquiesceilce, a "pattern of acquiescences", of the jurisdictioil of the
Court based on Article IX of the Convention. As Judge Shabuddeen iloted in I-iisseparate
opinion appei~dedto the Order of 13 Septeinber 1993, these declarations were "clear state-
ments on the basic jurisdictional position talteilby Yugoslavia" (ICJ Rcp. 1993,p. 354).
4.29 In its written and oral pleadings before tlie Court, Bosilia and Herzegovina had drawn
two series of consequences frorn these Yugoslav statements:M'rillen0hser11cltion.s Page 4 1
of BO.SI~andI Hcrzegoiiinu
3 December 2001
re
.~1/~/7/icijonr, Rc~'i.c.ion Part Ili
l)'ngo.\.lcl1)Bo.sniua17dHcrzegovina) Yugoslavia ignores ifown hehuvinur
- iilthe first place, it noted tliat Yugoslavia l-iadacquiesced in tlie jurisdiction of tlie
Court on the basis of Article IX of tlie Genocide Convention;
- second, it suggested that, particularly in its request for provisional measures, Yugo-
slavia liad goiîe f~irtherthan this provision and given its consent to the exercise by the Court
ol'a wider jurisdiction than that provided for in said provisioi~
(see e.g.: Memorial, pp. 154-158, para. 4.2.2.2 to 4.2.2.8; Statement on Prelinzinary Ohjec-
/ior7,s,pp. 8-9, para. 23 and pp. 11-12, para. 27-28; Public Sittings, 1May 1996, CR 9618,pp.
75-85 and CR 96111,pp. 42-55 (A. Pellet)).
4.30 In its .ludgment of 11 July 1996the Court took the following position 011 these two
i-elatedbut distinct arguments:
"According to tlie first of tliose arguments, Yugoslavia, by various aspects
of its conduct in the course of the incidental proceedings set in motion by the re-
quests for the indication of provisioilal ineasures, had acquiesced in the jurisdic-
tion of the Coui-ton the basis of Article IX of the Genocide Conveiltion. As the
Coui-thas already reached the conclusion that it liasjurisdictioil on the basis of
tliat provision, itieed no longer considel-tl~atquestion.
"According to the second argument, as Yugoslavia, on 1 April 1993, itself
called for the indication of provisional nleasures soine of w1-iicl.w i ere aiined at
the preservation of rights not covered by tlie Genocide Coilvention, it was said,
in accordance with the doctrine of ,forunzprorogatum (stricto senszr), to have
gi-ten its consent to the exercise by the Court, in the preseiit case, of a wider ju-
risdiction tl~ailthat provided for in Article IX of the Coilveiition. Given the na-
ture of both the provisional ineasures subsequently requested by Yugoslavia on 9
August 1993 - w11icl-wi ere aiined exclusively at tlie preservation of rights con-
ferred by the Genocide Convention - and the unequivocal declarations wlîereby
Yugoslavia consisteiitly contended during the subsequent proceedings that the
Court lacked jurisdiction - whether on the basis of tlie Geilocide Convention or
on any otller basis - the Court finds that it must coiifirin the provisional conclu-
sion tl-iatit reached on that sub-jectin its Order of 13 Septenlber 1993 (Rep. pp.
34 1-342.para. 34). The Court does iiot find that the Respondent has given in this
case a "voluntary and indisputable" coilsent which would confer upon it a juris-
diction exceeding that wliich it lias already acltnowledged to have beeii conferred
~iponit by Article IX of the Genocide Coilvention" (ICJ Rep. 1996, pp. 620,
para. 40)W/,-ittenO/~.servutiovrs Page 42
c?f'B»s~Uur7dHcrzegovina 3 Deceinber 2001
I'C
Application,f?~rRevi.sioi7 Part IV
O'z~goslai~i1[Bo.sniucrrîHerzeguvinu) Yugoslui~iuignores its own bel~uiiiour
(see also Judge Sl-iahabuddeen'sseparate opinions, 1CJRep. 1993, p. 354 and 1996, pp. 637-
639; Judge Parsa-Arailguren'ssepasate opinion, ICI Rep. 1996,p. 656, para. 1,and Judge Lau-
terpaclît'sseparate opinions, ICJ Rep. 1993,pp. 416-421, para. 24-37 and 1996, p. 633).
4.31 It iscertainly ilot the intention of Bosnia and Herzegovina to question tliese fiildings
at this stage. Howeves, a series of remasks must be made.
4.32 111the first place, it is to be noted that the Court lias not taken aily positiori concern-
ing the first arguinent made by Bosnia and Herzegovina duriilg the exarninatioi~of the pre-
liiiîinary objections. Since it had satisfied itself that ithad jurisdiction for other reasons, it has
sii~iplynoted that it was superfluous to decide on the more specific question of acquiescence.
Therefore, the issue has ilot been ruled and is not resjudicata. And, if, against al1possibility,
the Court were to consider the cliailge of situation invoked by Yugoslavia as constituting a
"new fact" leading to the revision of its 1996 Judgment, it could, and should, exarnii~ethis
grouild of its jurisdiction from this distinct perspective. 111 suclî ail implausible circuinstailce,
Bosiîia and Herzegoviila would maii~tain,in its eiîtirety, the argument made in its previous
pleadiiigs and respectf~illyas]<the Court to refer to the documeiîts ineiltioned above under
para. 4.29.
4.33 In suc11a case, it would become apparent that, wliatever the legal status of Yugosla-
via at the tiine, it was, and still is, bound by its own stateinents. 111tbis respect, tlîe legal prin-
ciples exposed in the previous Sectioiî of the present Part would fully apply.
4.34 This is pai-ticularlytrue when a declaration recognizing the jurisdictioii of the Court
iinder Article IX is inade by the represeiltatives of a State before an international Court or
Tribunal (see e.g.: Arbitral Award, 17 July 1986, Filleting in lhe Gulf'ofSaint Lawrence l?e-
/i.i:cenC'nnuu'u und France, R.A.A.A. XIX, p. 265). In the preseilt case, the acquiescence in tlie
Court'sjurisdiction in accordailce with Article IX of the Genocide Convention was made e.g.
by the acting Agent of Yugoslavia (see above, para. 4.26).
4.35 As Yugoslavia clearly acquiesced in the jurisdictioii of the Court "in the limits
strictly stipulated in tlieConveiltion itself" (see above, para. 4.26), it is now precluded to chal-
lenge this j~~risdictionwithiil these limits and is estopped to do so.I4'1'ilt0hseri~ation.r
cf Bosniu and Hcrzegoiiinu
1.C
Ap/7/icalio17,firRcilisioil Par21 JI
(J.i~gosI~~v1. Bosniu and Herzegoijina) Yugoslaviu ignores its oivn behavioz~~-
Conclusion
4.36 The following conclusions are to be drawii froin the present Part:
(i) Yugoslavia has expressly, clearly and consistently stated that it considered itself a
r\~leiiiberof tlie United Nations and a Party to the Genocide Convention;
(ii) Having created and admitted this situation, Yugoslavia is precluded to change its
position retroactively whether by virtue of acquiescence or of estoppel and
(iii)cannot prevail itself of this "mistalce"wliich it could have easily avoided;
(iv) Subsidiarily, if the Court would find that the new situation involcedby Yugosla-
via is a ground for revision, qtlod non, it should nevertheless decide that, Yugoslavia liaviiig
acquiesced in the jurisdiction of the Court on the basis of Article IX of the Genocide Conven-
tion canilot now change its position.Wri//cn Obscrvutinns Page 44
O/'BO.SMiu and Hcrzegoijinu 3 Decemher 200 1
rc
Ap/~licution,fbrRcvisiot~ Part IL'
(Yzrgoslc/viav. Bosnin andHel-zegovinn) Yugoslcniiuignores itsown behaviourWrilten 0b.servations Page 45
ofBo.c.niaand Herzegovitia 3 Decernber2001
re
,4/7plicuiion,forRevision Part V
()'zc,qosla1)Bnsnia and Herzegovina) Article 35, par2.ofthe Statute
PART V
THECOURT HAS JURISDICTIONON THE GROUND OF
ARTICLE 35,PARA.2, OF ITS STATUTE
Introduction
5.1 In the previous Parts of tlîis Statement, Bosnia and Herzegoviiîa has shown that
Yugoslavia was a Party to tlîe Court's Statute or that, in any case, this issue was irrelevant for
the purpose of tlîe preseiit proceediiigs since the admission of Yugoslavia in tlîe United Na-
tions cannot be analysed as a iîew fact in tlîe meaning of Article 61 of the Statute and since
Yugoslavia cannot talte advailtage of its o\vn wishful inistalceand is estopped from invoking it
before the Court at this stage. Itwill demonstrate in the present Part that the aforesaid issue is
a1soirrelevailt since, eveii if Yugoslavia were not a Party to the Court's Statute, tlîe Court has
~jurisdictioilunder Article 35, paragraph 2.
5.2 According to this provision,
"The conditions under which the Court shall be open to other States [i.e.:
States other than tlîe States parties to tlîe preseiît Statute] shsubject [o the special
pr.ovi.vionsconl~ined in /he lrealies in,force, be laid down by the Security Couilcil,
but in iîo case shall suçh conditioilsplace the parties iiîa position of iilequality before
the Court".
5.3 The italicised phrase inakes clear that the Court has jurisdiction in the preseiît case
ind der rticleIX of the 1948 Genocide Convention, whether or not Yugoslavia was a Pai-tyto
the Statute of the Coui-tat tlie time of the Application. However, Bosnia and Herzegovina
wislîes to reiterate that this is only a subsidiary argument since it firnîly maiiltains that Yugo-
slavia cannot depart now from its previously constant position that it wa.ra Party.N'rittcnObservations Page 46
ofBosnia und Hcrzegovina 3 December 2001
I'C
Application,for Rei~ision Part V
()'z~go.~lai).Bosnia and Herzegovina) Article 35,para2 ofthe Statzrte
Article 35, paragraph 2, provides, in any case, a basis for the jurisdiction of the Court
5.4 The Applicailt in this case, postulates tliat, according to Article 35; paragraph 2,
"[a]ccess [to the Court] is in principle possible to a State whicl~is not a party to the Statute,
but oilly on conditions laid down by the Security Council, and subject to special provisions
contained in treaties in force" (Application,for Revision, p. 34, para. 25). While the second
propositioiî is correct - the jurisdiction of the Court is, indeed, "subject to special provisions
contained in treaties in force" -,the first is untenable. It is contradicted by the very text of Ar-
ticle 35 and by the practice of the Court, including in the present case.
5.5 Suffice it to read genuinely the text of Paragraph 2 of Article 35 to find Yugoslavia's
interpretation erroneous. This provision includes three elements:
-first, and this migl~tbe seeil as the principle, it provides for access to the Court for
non-pal-tyStates under the conditions laid down by the Security Council;
- .second,and this is the exception to the above mentioiied principle, this is, however,
"subject to the special provisioils contained in treaties in force; and
- third, in hoth cases the equality of the Parties before the Court must be preserved.
5.6 When a legal text is obvious, there is no room for extrapolation. As the Permanent
Court explained:
"The Court's task is clearly defined. 1-Iavingbefore it a clause which leaves
little to be desired in the nature of clearness, it is bound to apply this clause as it
stands witl~outconsidering whether other provisions might with advantage have
beei~added to or substituted for it" (PCIJ, Advisory Opinion, 15 September 1923,
Acquisition qfPolish Nafionulity, Series B, No7, p. 20; see also, e.g.: PCIJ, Advi-
sory Opiilion, 8 Deceinber 1927, European Con~missionof the Danube. Series B,
No 14, p. 28 or ICJ, 3 Feb. 1994, Territorial Dispute, ICJ Rep. 1994, p. 25, para.
51).
This fundamental priilciple of interpretatioil is also in line with Article 3 1,paragraph 1, of the
1969 Vienila Convention on the Law of Treaties.MiritrenOh.seri~urior7s Page 47
~f'BosniuanciHerzegoi'ina
3 December 2001
TC
A/~plicatiori,Revision Part V
(Yugosluvia1)Bosnia und Herzegovina) Article 35, para. 2 of the Statute
5.7 According to Yugoslavia, application of Article 35, paragraph 2, would be coildi-
tioned by a formal declaration made in accordance with Resolution 9 (1946) of the Security
Council of 15 October 1946 (see Apylicationjor Revision, pp. 34-36, para. 25). Such ail inter-
pretation ignores the clear text of this provision: the conditions laid down by the Security
Couricil are "subject to the special provisions contained in treaties in force" - and the French
text inight be eveil clearer: "sous réseri?e des dispositions particulières des traités en
vigueur.. .". It flows froin tllis unambiguous text that when a treaty in force provides for the
jurisdiction of the Court, such a provision prevails oves and neutralizes the application of the
Security Council resolution. It is also to be noted that the Security Couilcil resolution 9 (1946)
itself caref~~llyrecalls that it i"subject io iheprovisions" of Article 35, paragraph 2 (para. 1
of the preamble).
5.8 Moreover: the interpretation proposed by Yugoslavia would make tlie phrase "subject
to the special provisions contained in treaties iil force" entirely meaningless since tliose spe-
cial treaty provisions would have 110 effect at al1and would be "subject to the special declara-
tien provided for iil the Security Council resolution" - wliich is the exact opposite of the text
of Article 35, paragraph 2. One cannot invert the meaning of a clear provision by ineails of
intei-pretation.
5.9 Such an interpretation would also be incon~patiblewith the rule of effectiveness as
expressed by the geileral inaxiin of interpretation ut res nzagis vuleat quanzpereat (cf. ICJ,
Sudgmeilt, 9 April 949, Co~fuCI~annel,ICJ Rep. 1949, p. 24 or Judginent, 3 February 1994,
Territorial Dispute, ICJ Rep. 1994, p. 23, para. 47). In particular, the words "but in no
case.. ."would be deprived of any significance: "in 110 case", clearly in~pliestlîat the two pre-
vious hypothesis are distinct; one "case" is consiituted by the coilditions laid down by the Se-
curity Council, the other by the special provisions in the treaties in force.
5.10 Siinilarly, al1jurisdictional provisions in treaties concluded by non-Meinbers States
of the United Nations would be deprived of aily beariilg, at least inasmuch these States would
not have inade the special declaration coilteinplated by the 1946 resolution of the Security
Co~iiicil.This would introduce a serious inequality between the Parties to the treaties in ques-
tion depending on whether they are Meinbers of the United Nations or not. In particular, the
application of suc11provisions would arbitrarily depend on the "double consent" expressed by
ille iioil-Meinbers, in the treaty first, and, second, in the declaration.
5.11 Yugoslavia alleges that "[ilt is evident that inequality would emerge if some parties
to proceediiigs before the Court would not be bound by conditions which parties to the StatuteM/~,itt0h.seriialion.s Page 48
ofBosnia und Herzegovina 3 December 2001
I'C
Ap/~licution,forRevision Part V
(Yugosluviu v. Bosnia and Herzcgoiiina) Article 35,para.2of the Statute
already accepted" (Apldication,for Revision, pp. 40-41, para. 29); in particular, Article 94 of
the Charter would bind the Meinbers of tlie United Nations, not the non-Members States
(ihid, p. 40, para. 29).
5.12 But this begs the question: the Statute itself provides for a possibility for ilon-
Members States to subinit disputes to the ICJ and Bosnia and Herzegoviila fails to see why
and 11owthe fact tl~ata case is submitted by a non-Member State by virtue of a treaty in force
and not of a unilateral declaration as envisaged by Security Couilcil resolution 9 (1946) would
chailge the picture in this respect: it goes without saying tl~at,by becoining a party to such a
treaty, a State accepts that the j~uisdictioi~of the Court be exercized in coilformity with its
Statute which guarantees a perfect equality between the Parties to a case. It also accepts the
binding character of the judginent in conformity with articles 59 and 60 of the Statute, which
Article 94, paragraph 1, of the Charter siinply reaffirins. And, concerning paragraph 2 of this
provisioil, by contrast with paragraph 1, it is not limited to the Members of the United Na-
tions.
5.13 In conforrnity with the consistent practice ofbot11the Permanent Court and the pre-
sent Court, "there is no occasion to resort to preparatory work if the text of a convention is
sufficieiltly clear in itself'(ICJ, Advisory Opinion, 12 December 1947, Conditions of Mem-
her.shipin ~heUnitedNations, ICJ Rep. 1947-1948,p. 63; see also e.g., PCIJ, Advisory Opin-
ion, 8 Deceinber 1927, European Cornmission of the Danube, Series B, No 14,p. 31or PCIJ,
Sudginent, 24 .Tuile1932, Inter~retation of the Stutute of Menzel (PrelirninuryObjection), Se-
ries AIB, No 47, p. 249).
5.14 Notwitl~standingthis well establisl~edprinciple, Yugoslavia einphasizes the "drafting
history of the Statute" (,4ppIicurion,for Revision, p. 41. para. 41) and embraces the very re-
strictive iilterpretatioil given by Ambassador Rosenne, a foriner Couilsel of Yugoslavia (ibid.,
]>p.41-42, para. 41). Accordiilg to this writer, 'inforce' meanttl~atthe treaty had to be in force
on tlie date of entry into force of the Statute of the Permanent Court" (The Law und Practice
of' the Inlerutationul Court 1920-1996, vol. II, Jurisdiction, Nijhoff, The
HagueIBostoilILondoi~,1997, p. 629) and it would now meail: "treaties that were infor*ceon
the date when the Statute entered into force, that is 24 October 1945"(ibid., p. 630).
5.15 Tliis iilterpretatioil lays upon a strange mixture of two differeilt inethods of interpre-
tation, that of "fixed refereilce" (renvoi.fixe) referring to conteinporary events at the time of
the co~lclusioilof the treaty - in the present case, Rosenne "locl<s"the meailing of the refer-
ence to treaties in force at the time of the entry into force of the Statute - with that of "mobileCl,'rittOh.servutioi~s
ofBosnia and Hcrzegoi~ina
r<'
A/~p/i~~l/O~,firci:i.r~on Purt V
fYzt,qo.slui1.Bost7inat7dHerzegovina) Article 35, puru. ofthe Slatzlte
reference" (renvoi n~obile)according to which the interpretation must talte into account the
law as it l-iasdeveloped since the conclusion of the treaty - in the present case, Rosenne in-
cludes the treaties in force in 1945 while acknowledging tlîat Article 35, paragrapli 2, of the
Statute of tlie present Court remained "substantially identical with the cosresponding provi-
sion in the Statute of tlîe Permanent Court" (ibid.,p. 628, f11.47).
5.16 Yugoslavia further insists that this limited ineaning was also confirmed by Judges
Anzilotti and Huber" during the discussion on the Revision of the Rules of the Permanent
Court (Applicalion,for Revision. p. 42, para. 30). What Yugoslavia omits to recall is that this
view was challeiîged and that the discussion proved entirely inconclusive. Tlie draft discussed
was based on tlîe opposite view according to which tlîe expression "treaties in force" ineans
the treaties in force at the time of the seizin ofthe Court. Given the opposing views expressed
during the discussion, "(. ..) it was agreed tlîatthe question in what cases the declaration [of
the non-party State, provided for in the resolution of tlîe Council of the League of Nations of
17 May 1922, wlîich was the predecessor of the Security Council of 19461 was ilecessary
should be left open. The Court would decide in eaclî case as it arose. If in a giveiicaseno dec-
laration was made. tlîe other Party to the case could make an objection oiî that ground upon
which it would be forthe Court to decide." (PCIJ, Series E- no3, p. 198).
5.17 The "liinited" interpretation suggested by Yugoslavia does not fit with the genuine
text of Article 35, paragraph 2, wlîiclîdoes not include any word comfosting suc11a restrictive
meaning of tlie words "treaties in force". If the drafters of tlîe Statute lîad so wished, they
could have included such a provision as "treaties in force at the time of entry into force of the
present Statute"; but tlîey did not. Moreover, Article 36, paragraph 1,also uses tliis sanîe ex-
pression ("treaties and conventions in force") and nobody lias ever suggested tliat tlîis expres-
sion would be liinited to "treaties tlîat were in force on tlîe date wheil the Statute entered into
force". Roseilne hiinself notes in tl~isrespect: "The expression treaties in,force appears in Ar-
ticles 35, 36 and 37 of the Statute. This normally nîeans that the treaty must be in force be-
tLveeiithe parties wlien tlîe proceedings are instituted". Since (contrary to Article 37) the text
and coiîtext of Ilîis expression in Article 35 does not express or inlply any restriction or dis-
tinctioil, there is no room for it.
5.18 It is remarkable that, in its Order of 8 April 1993 on tlie Request of Bosnia and Her-
zegoviiîa for the indication of provisional ineasures, the Court itself considered:
"Wlîereas Article 35 of the Statute, after providiilg that tlîe Coust shall be
open to the parties to the Statute, continues:Written Ohservation.~ Page 50
~f'Bostziand Herzegovina 3 Deccmber 2003
re
App/ic~~tion,fi,rRevision Part If
(I'z~go.slu1:Bosnia and Her~zego~~inu) Article 35,para2 of the Statute
"2. The coilditions under wl~icllthe Court sl~allbe open to other States shall, sub-
ject to the special provisions contained in treaties in force, be laid down by tke
Security Council, but in no case shall such conditions place the parties in a posi-
tion of inequality before the Court";
"Whereas the Court therefore considers that proceedings inay validly be in-
stituted by a State against a State wliicl~is a party to such a special provision in a
treaty in force, but is not partyto the Statute, and independently of the conditions
laid down by the Security Council in its resolution 9 of 1946 (cf.
S.S. "Win7bledon ",P. C.I.J. 1923,Series A, No. 1, p. 6); whereas a comproinis-
sory clause in a inultilateral convention, such as Article IX of the Genocide Con-
vention relied on by Bosnia-Herzegovina inthe present case, could, in the view
of the Court, be regarded prima facie as a special provision contained in a treaty
in force; wl~ereasaccordiilgly if Bosnia-Herzegovina and Yugoslavia are bot11
parties to tlle Genocide Coiîventioil, disputes to which Article IX applies are in
any event prima facie within thejurisdiction vationepeiPsonaeof the Court" (ICJ
Rep. 1993, p. 14,para. 19).
5.19 Indeed. tlîis solution was adopted on a priv17u.fuciebasis and does not prejudge the
1-inalposition of the Court regarding itsjurisdiction. However, it should be noted that:
- tl~isargument was made by the Courtproprio i~zotuwhich clearly shows that it did
not igilore the issue;
-110 Judge appended an opinion ora declaration expressing a doubt on its cogency;
- in its Order of 13 September 1993, the Court reiterated that Article IX of the Geno-
cide Convention was a provision on which its jurisdiction migl-itbe founded (cf. ICJ Rep.
1993, p. 338, para. 25 and p. 342. para. 36), again without any Judge (including Judge ad hoc
ICreCa)dissenting on this particular point; and
- in its Judgment of Il July 1996on the preliminary objections raisedby Yugoslavia,
the Court iloted that "al1the conditions are now fulfilled to found thejurisdiction of the Court
rufione yersonae" (ICJ Rep. 1996,p. 613, para. 26), thus ratifying itsprirna,facie reasoning of
1993
- against which Yugoslavia llad raised 1x0 objection at least in relation witli Article
35, paragraph 2, in spite of the already very artificial character of its preliminary objections;
- again, no Judge, including Judge ad hoc KreLa, appended any dissent in this re-
spect.
5.20 As recalled by the Court in its Order of 8 April 1993 (supra, para. 5.17), this saine
line of argument was followed by the Permanent Court in the Wimbledoncase. It recognizedWiltei7 Oi~servations Page 5/
0f'Bo.~17iund Hers-egoi~ina
3 Decen~ber-2001
1.C
,-ll1plicutiot7revi.siot7 PartJI'
(1'11,~o.sI1.~Busiîia and He~egovit7u) A/*ticle35, para. 2 of the Stature
its jurisdiction to decide the case made by the Applicant States (Great-Britain, France, Italy
and Japan against Gerinany on the sole basis of Article 386, paragrapl~1,of the Treaty of Ver-
sailles. while the Defendant was not yet a Party to the Court's Statute (PCIJ, Judgment, 17
August 1923, Series A, No 1, pp. 20 and 35). It is true that, in tliis case, the Treaty of Ver-
sailles 11adentered into force before the adoption of the Statute, but, at no place in its Judg-
ment. the Court stresses or even mentioils tl-iiscircuinstailce. The sarne holds true conceming
the GcrnzunIntcrests in Polish Ul7perSilesia where the Court expressed no doubt coilcerniilg
its jurisdiction (expressly based on Article 35 of its Statute) while the Defendant, Poland, was
not a Party to tlîe Protocol iilstitutiilg the PCIJ (Judgmeilt, 25 August 1925, Series A, No 6,p.
Il).
5.21 It results fronl the above that the jurisdiction of the Court in the case Application cf
/hc C'on~vntioro zn the Prevention and Puni.shmentof'the Crime of'Genocide is not dependent
upon the Membership of Yugoslavia in tlie United Nations at the time when the Application
was liled by Bosnia and Herzegovina or at the time of the Judgmeilt itself. Wllether or not
Yugoslavia was a Meinber at the relevant tiine is irrelevant: supposiilg it were not, tl~eCourt
~vo~ildn ,evertheless have jurisdictioil 011 the ground of Article 35, paragraph 2, of its Statute.
As a result. it is also evident that Yugoslavia'sadmission (or re-admission) in the United Na-
tions in 2001 has 110bearing on the present case; iîor has the "clarification" this admission
supposedly brougl~tto the legal situation.
The 1948 Convention was in force between the Parties at the relevant time
5.22 According to Article 35, paragrapl~2, tlie Court is open to States whicll are not par-
ties to the Statute "subject to tlie special provisions contained in treaties in force", provided
that the Parties are not placed "in a position of inequality before the Court".
5.23 It is not disputed between the Parties that Article IX of tlîe Genocide Convention is a
special provision providing for thejurisdiction of the Court. It reads as follows:
"Disputes betweeil the Coiltractiilg Parties relating to the interpretation, ap-
plication or fulfilinent of tlîe present Coilventioii, iilcludiilg those relating to the
respoilsibility of a state for geilocide or for any the other acts enumerated in Arti-
cle III,sllall be subinitted to the International Court of Justice at the request of any
of tlie parties to the dispute".M'sitlci70h.rcrvcttions Page 57
ofBOSM iu and Herz~govina 3 Decernber200 /
1.e
Al~plicatioyfor Revision Part I'
()'z~,yo.si1crBosniaand Herzegoi~ina) Articl35,paru. 2 qf the Staizite
5.24 Nor can it be sustained tlîat this provision creates ail inequality between the Parties.
As explained above (para. 5.10), it would only do so if it were interpreted as suggested by
Yugoslavia: if Article IX were to be applicable to States not Meinbers to the Statute only if
and when they malte a special declaration in accordance with resolution 9 (1946) of the Secu-
rity Council, then, a paradoxical situation would take place where the Parties to the Statute
wo~~ld be bound by the inere fact of haviiig ratified the 1948 Conventioil, while the States not
Parties to the Statute would be free to give effect or not to Article IX at tl~eirown discretion.
5.25 This also coilfirms that Yugoslavia's positionholding that the expression "treaties in
force" in Article 35, paragraplî 2, of the Statute must be interpreted as applying only to tlîe
treaties in force in 1945 is untenable: tliis iiîterpretation would iinply that a State wlîicl~is not
a Party to the Statute, or which ceases to be so, is not - or no more - bound by Article IX, even
without any express reservation. This is irreconcilable witl-ithe text and tlîe spirit of Article IX
- and would, inoreover, draw to absurd consequences in the case of treaties prohibiting reser-
vatioils to tlieirjurisdictional clauses.
5.26 The only issue still to be clarified is whetlîer or not the Genocide Convention must be
considered as a "treaty in force" between the Parties at the relevant time.
5.27 But, in reality, tliis point has been clarified in the Judgment of tlîe Court concerning
the prelimiilary objections raised by Yugoslavia, three of which were precisely devoted to
tryiilg to establish that the Conveiition was not in force between the Parties when the Applica-
tion was made (tliird, sixth and seventh preliminary objectioils - see ICJ Rcp. 1996, pp. 607-
608). The Court clearly rejected these three objections by fourteerivotes to one (ibid p. ,23,
para. 47 (1) (c)).
5.28 It isliiglily relevant that, at no point in its Judginent, eitlier in the motives or in the
c/i.s/x).c.ithe Court did affirm or even hiilted at tlîe fact that Yugoslavia was, at the time, a
Party to its Statute. This point, which is the core of tlîe Application for Revision, is simply iiot
a ground for the decision and cannot therefore be a grouild for its revision. It is purely and
siiîiply irrelevant (see above, Part III).
5.29 Concerning the participation of Yugoslavia in the Genocide Coiîveiltion itself, the
Couif clearly observed - witlîout referriiigto the inenîbership of Yugoslavia in the United Na-
tions - tliat "it lias not been coiitested tliat Yugoslavia was party to the Genocide Convention.
Thus, Yugoslavia was bound by the provisions of the Coilvention on the date of the filing of
the Application in tlîe preseiît case, nainely, on 20 March 1993"(ICJ Rep. 1996, p. 610, para.M/rit/er011.~crvafi0n.s
Page 53
c!f'Bosriund Hcr*zegoi~ina 3 December 2001
1L'
A/7p/ic(/lio~f~)rReirision Parl If
(Y?~go,slai~a.Bosnia and Heiiegoviriu) Article 35, par-u.2 of the Stutz/te
17). This is also accepted by Judge ad hoc KreCain his dissenting opinion, althougl~through a
differeiit inode of reasoning (ibid., p. 756, para. 91) since l~ebases hi~nselfon the claim of
Yugoslavia to be the only continuator of tlie former SFRY. But this dissent as such shows that
the inajority of the Court (al1Judges participating in the Judgment except the Yugoslav ad hoc
S~idge)were of tlie opinion that tliis fact, again involted by Yugoslavia iii the present proceed-
ing, was not the ratio decidendi of tlie Judgment. Therefore. even if the admission of Yugo-
slavia to tlie United Nations 011 1stNovember 2000 had "clarified" the legal situation in malt-
ing clear that Yugoslavia was not the "coiltinuator" of the former SFRY but only one of its
successors, this lias no relation witli the 1996Judgment whicli was not based oiî the erroneous
assuinption inade by Yugoslavia.
5.30 More recently, the Court, in its Orders of 2 June 1999, on the Yugoslav Requests for
the Indication of Provisional Measures in the cases concerniiig Legality of Use of Force, reit-
erated tliat it was "not disputed tllat (...) Yugoslavia [is party] to the Genocide Convention
witliout reservation" and considered that
"Article IX of the Convention accordingly appears to constitute a basis on
whicli the jurisdictioii of the Court might be founded to the extent that the sub-
ject-inatter of the dispute relates to 'the interpretation, application or fulfilment'
of the Convention.. ."(Convention accordingly appears to constitute a basis oii
whicli tlie jurisdictioii of tlie Court inight be founded to the extent that tlie sub-
ject-inatter of the dispute relates to 'tlieinterpretation, application or fulfilmerit'
of the Coiiventioii.. ."(Yugosluviuv. Belgiur~zp , ara. 37; see also C'crnuda,para.
36; Gern?uny,para. 24; France, para. 24; Italy, para. 24; Netherlundr., para. 37;
i;l?uirz,para. 29; United Kingdom, pas-a.32 and United Srutes of America, para.
21).
5.3 1 Again, in iione of tliese cases, the Court did mention iii this respect the fact tliat
Yugoslavia was, or was not, party to its Statute. And this is al1the more significant now that
in several of tliese cases, the Defendant States had raised the argument tliat Yugoslavia was
"not a party to the Statute of the Court" (see Belgiznn, para. 31; Cunuda, para. 30;
h~c/lzerl~~ndp ~s,a. 31 ; Portugal, para. 30; Syuii?,para. 26 and United Kingdon?, para. 26),
while Yugoslavia itself,
"seferring to the position of tlie Secretariat, as expressed in a letter dated 29 Sep-
tember 1992 froin the Legal Counsel of the Organization, and to tlie latter's subse-
queiit practice, contends for its part that General Asseinbly resolution 4711
'[neitlier]terininate[d] nor suspend[ed] Yugoslavia'smembersl~ipin the Organiza-
tion', and tliat the said resolution did not talte away froin Yugoslavia '[its] right tolVriiie/i 0h.rcrvation.r Page 54
ofBosnin und Herzcgoviiia 3 Decemher 2001
rc
Al~plicurio~~,frevision Part I,,'
(Y~igoslavi~,.Bosnia and Herzegovina) Article 35,parcr2 ofthe Statute
participate in the work of organs other than Asseinbly bodiesl(Belgium,para. 32;
Canada, para. 32; Netherlands, para. 32; Portugal, para. 32; Spain, para. 27;
[Jnited Kingdor~zp , ara. 27).
5.32 Then, not only Yugoslavia availed itself of its membership in the United Nations (see
above para. 4.22), but also, this shows that the Court, altlîough it was perfectly aware of the
doubts conceriling tlîe statute of Yugoslavia witkiil the United Nations, considered that this
issue was of no relevance for tlîe basis of itsjurisdiction offered by Article IX of the Genocide
Coilveiltioil.
5.33 Moreover, even if it could be maintained that Yugoslavia was not bound by the mul-
tilateral treaties whicl~it liad forinally accepted by its forma1stateineilts (see above, para. 2.1 -
2.2), quod HOM, this would not apply to the Genocide Convention giveil its specific purpose.
5.34 111its Judgi~ieiltof 11 July 1996, the Court has not expressly talcen a position con-
ceri~iilgthis issue. Recalliilg its celebrated dicta in its Advisory Opiilion of 28 May 195 1 relat-
iiîg to the Rcservations 10 the Coni)entionon the Preverztionand Punishr~zentof the Crime of
Genocide (IC,;JXcp. 1996, pp. 611-612, para. 22), it siinply declared:
"Without pre-judiceas to whether or not tlle principle of 'automatic succes-
sion' applies in the case of certain types of iilternational treaties or conventions,
the Court does ~îotconsider it necessary, in order to decide on its jurisdictioil in
this case, to inalte a deterinination 011 tlîe legal issues conceriling State successio~~
in respect to treaties which have beeiî raised by tlîe Parties" (ibid, p. 612, para.
23).
5.35 .ludge Shabuddeen, iievertheless, expressed liis conviction tl~at "[tlo effectuate its
ob-jectand purpose, the Coilventioil would fa11to be construed as iinplying the expression of a
unilateral undertalting by each party to the Conveiltion to treat successor States as continuing
as frorn independence any status which the predecessor State had as a party to the Conven-
tioil" (Separate Opinioil, iOid, p. 636). For liis part, Judge Weeramantry concluded his sepa-
rate opiilioil by stating that "there is a automatic s~~ccession to so vital a hurnaiîriglîts conveil-
tioiî as the Genocide Coilventioil" (ihid., p. 654).
5.36 It is the firm opinion of the Republic of Bosnia and Herzegovina that the present pro-
ceediilgs should not be an occasion to se-open the case w11icl.h ias been decided with resjuu'i-
ccrluforce in the 1996 Judginent, as Yugoslavia tries to do. However. if, agaiilst al1possibility,
the Court were iilcli~iedto consider that the Application for Revisioii introduced by Yugosla-Written 0h.serv~rtion.v
O/B'o.sniaund Het*zegoi:ina
1L'
ilpp/icafion,jor Rci:i.~ion Part 1,'
lY'irgosluv1)Bo.stiiuund Herzegoi:ina) Article 35, par2.qf tlie Statute
via were admissible and that, five years later, the Applicant could go back to the Court to
siinply repudiate its repeated declarations, then Bosnia and Herzegovina would respectf~~lly
request the Court to consider al1its previous written and oral pleadiilgs establishing the prin-
ciple of automatic succession to the Genocide Coilvention as an integral part of the present
Statenîent (see e.g.: Menzoriul of'Bosnia and Her~zego~lina pp. 163-168, para. 4.2.2.16 to
4.2.2.22; ,Y/u/ement oj Bosniu and Herzegovina on PrelinginaryObjections, pp. 66-80, para.
3.34-3.63; Public Sittings, 1 May 1996, CR 9619,pp. 20-30 (B. Stern) and 3 May 1996, CR
96111,pp. 55-77 (B. Stern)).
5.37 In this respect, it should be ltept in mind that, in deciding on the ground of autoinatic
successioil to the Genocide Convention, the Court would not infringe the res,judicata princi-
ple nor the provisions of Articles 59 and 60 of its Statute since: as recalled above (para. 5.30),
the 1996Judgnlent does not talte aiiyposition on this point.
5.3 However, the Governiiîeilt of Bosnia and Herzegovina is also firmly convinced that
siic1-i se-opening of the case is excluded: as deinoilstrated in Part IIIabove, there is no new
fact wliiclî would justify the iinplemeiltation of Article 61 of the Court'sStatute and Yugosla-
via'schange of position is certainly not such a new fact.
5.39 The Applicailt State in tlie present proceeding tries to talte advantage of its late noti-
fication of accession to the Genocide Convention, which toolt place on 8 Marc112001. It al-
leges that "Accession has no retroactive effect. Even if it had a retroactive effect, this cannot
possibly eiicoinpass the compromissory clause in Article IX of the GelIocide Convention,
hecause the FRY never accepted Article IX, and the FRY'Saccession did not encompass
Article IX"(.4pl7licufioi7,fbRr evision. p. 44. para. 41- bold letters in the original text).
5.40 There are strong doubts that suc11a notification of "accession" and the reservation it
includes is a valid one:
- it coiltradicts al1the previous declarations made by Yugoslavia, whicli is bound by
tliem either by virtue of an estoppel or, simply, because it liad formally acquiesced that it was
a party to the Genocide Convention (see Part IV, above);
- as Yugoslavia was a party to the Geilocide Convention, it cannot formulate a reser-
vatioii several years after it becaine bound; according to Articles 2 (1) (d) and 19 of the 1969
Vienna Convention on the Law of Treaties a reservation may only be formulated "when sigil-
ing, ratifying, acceptiiig, approving or acceding to a treaty";
- iriany case, suc11a reservation is not opposable to Bosnia and Herzegovina which
\vil1formally ob-jectto it as it is entitled under Articles 20 and 23 of the Vieilna Co~ivention:M'rittetiObservutions
?j'Bo.r17and Herzegovinu
1.L'
Ap/~/icution,fi7rRevision Part V
(Yzigoslavi~iv. Bosnicland Herzegovina) Article35,para. 2ofthe Statute
-tl~isis a.fortioriso if, as is the position of Bosnia and Herzegovina, the principle of
autoinatic succession appliesto the Genocide Conventioi-i.
5.4 1 Whatever the validity of this reservation it can certainly iiot, as Yugoslavia itself rec-
ogi-iizes,have a retroactive effect. When tlie Court passed its Judgment, on 11 July 1996, it
decided iii accordance with tlie conteinporary situation prevailing then. Aiid, at the tinze,tlie
alleged reservatioii did iiot exist. Yugoslavia camiot involce,as a decisive factor, a self-serving
"fact" which it lias artificially created five years later in view of requesting the revisioii of a
fiilaljudgment.
Conclusion
5.42 As Bosiiia and Herzegovina lias shown ii-ithe present Part:
(i) Article IX of tlie Geiiocide Conventioii is a "special provision" within the
ineai-iii-of Article 35, paragraph 2, of the Court'sStatute;
(ii)the 1948 Convention is a "treaty in force" within the ineaning of this saine provi-
sion;
(iii) therefore, ArticleIX of this Convention provides a sufficient grouiid for tlieju-
risdiction of the COLI ^n^the case conceriiiiigAyylication ofthe Convention on the Prevention
~117~' z/ni.shrnenfofthe Oinze of'Genocide;
(iv) tl-iiscoiiclusioii does 11otdepeiid on the question wl-ietlieror iiot Yugoslavia was a
Meiuber of tlie United Nations aiid a Party to the Court'sStatute at the time of the Judgment;
aild
(v) Yugoslavia caniiot put forward its 2001 reservatioil to the Genocide Conveiitiori -
adn-~ittinptlîis reservation could be a valid one, quod non - in order to challenge tlie Court's
Judgn-ieiltof 1996.WsitrcnO/~servution.r Page 57
qfBosniu und Herzegovinu 3 Decernber2001
l'c!
App/ic~~tiol'l,revision Part VI
(~~~g-oslcrv).Bosniu and He~*zegovina) Submissions
PARTVI
SUBMISSIONS
In consideration of the foregoing,tlie Goverilmentof Bosnia and Herzegovina
i-equeststhe Court to adjudge and declarethat the Application for Revision ofthe Judgmeilt of
11.luly 1996, submitted by the Federal Republicof Yugoslavia on23 April 2001, is not
admissible.
3 December 2001
Prof: I<asimTrnka
Agent of Bosnia and Herzegovina
before the InternationalCo~irtof JusticeWriften Observations
ofBosnia and Herzegovina
re
Application for Revision
(Yz~goslaviav. Bosnia and Herzegovina) Corrigendum
CORRIGENDUM
On page 57 of the Written Observations of Bosnia and Herzegovina dated
3 December 2001
"the Government of Bosnia and Herzegovina"
should be read as
"Bosnia and Herzegovina".
Written Observations of Bosnia and Herzegovina on the Admissibility of the Application