INTERNATIONALCOURTOF JUSTICE
CASE CONCERNINGAPPLICATIONOF THE CONVENTIONON THE
PREVENTION AND PUNISHMENTOF THE CRIME OF GENOCIDE
(Bosnia andHerzegovinav. Yugoslavia (Serbiaand Montenegro))
STATEMENT
OF THE GOVERNMENT OF
THE REPUBLICOF
BOSNIAANDHERZEGOVINA
on
Preliminary Objections
14Novemb1995 TABLEOFCONTENTS
INTRODUCTION ................................... 1
Preliminaryremarks........................... 1
Genemlassessmentof the
PreliminaryObjectio.......................... 2
Geneml observahahonsthe content
of the PreliminaryObjectio..................... 6
Yugoslavia (SerbiaaMontenegro)'~
approachto thefacts......................... 13
Yugoslavia (Serbiaand Montenegs)involvement
25
in the warin Bosniaand Henegovin...............
Scopeandgeneml schemeof this Statemen........... 29
RESPONSETOTHEFIRSTPRELIMINARY OBJECTION ...... 31
RESPONSETO THESECONDPRELIMINARY OBJECTION ..... 40
RESPONSETOTHE THIRD PRELIMINARY OBJECTION ...... 49
Underthe Constitutionofthe SocialistFedeml
Republicof Yugoslavia,the Republicof Bosnia
and Henegovina wasentitledto optfor
independentstatehood........................ 49
In breakingawayfrom the SocialistFederalRepublic
of Yugoslaviathe Republicof Bosniaand Henegovina
violcrtno nom of internationallaw:certainlynot
the rulesapplicableto self-detemination......... 59
Theallegedviourtionof the lawof State succ....... 62
Bosnia andHenegovinahas become apalty
to the GenocideConventionby application
of the rule of automaficsuccession to muItilatem1conventionson human nghts............. 66
the customaryrule of automatic
continuitv~liesto a multilateral
conventionlike the Genocide Convention........ 66
(ii) there are no specificcircumstances
to iustifv thetingaside of the
rule of automaticsuccessionof
Bosniaand Herzegovinato the Genocide
Convention ............................ 75
a the rule of automaticcontinuity.even
if not customarvuod non -.a~~lies
bv agreement ........................... 80
Even ifthe "cleanslate"rule wereapplicable,
the Applicant Statewas entitledto enter
the 1948GenocideConventionby notiJcatratron
of succession.............................. 80
RESPONSETO THEFOURTH PRELIMINARY OBJECTION .... 88
Irrelevanceandfalsity of the argument
basedon the assertedexistenceoffour
"States"withinthe bordersof theformer
Yugoslavrepublicof Bosniuand Henegovina .......... 89
Irrelevanceandfalsiiy of Yugoslaviu(Serbiu
and Montenegro)'~asserfionsconcerning
internationalrecognitionof the Republic
of Bosniuand Henegovina ...................... 94
RESPONSETOTHEFiFïM PRELIMINARY OBJECTION ...... 98
Non-territorialof the GenocideConvention .......... 99
Theresponsibilityof Statesunderthe GenocideConvention......................... 104
RESPONSETO THESMTH PRELIMINARY OBJECTION ...... 108
RESPONSETO THESEVENTHPRELIMINARY OBJECTION .... 113
SUBMISSIONS .................................... 120
.III. INTRODUCTION
Preliminaryremarks
1. On 26 June 1995,Yugoslavia(Serbiaand Montenegro)filed Preliminary
Objections, ostensiblyin accordancewith Article79 of the Rules of Court.
2. By an Order of 14July 1995,the Presidentof the Court has fixed 14
November 1995as the time-limitwithinwhich the Republicof Bosniaand
Herzegovinamay present a wntten statementof its observationsand
submissionson the Preliminary Ob-iectionraised by Yugoslavia(Serbia
and Montenegro)in this case.
3. This Written Statementof the Republicof Bosniaand Herzegovinais
presented in accordancewith the Order of the President of the Court.
4. The Governmentof Bosniaand Herzegovina will respondin turn to each of
the sevenpreliminaryobjectionsmadeby Yugoslavia(Serbiaand Montene-
gro). But, to begin with, it deemsit necessaryto deal briefly with the
general character of the Preliminary Objectionsand withYugoslavia
(Serbiaand Montenegro)'~approach to the facts.
5. The cavalier and frivolous natureof the contentand presentationof the
preliminary objectionsby Yugoslavia(Serbiaand Montenegro)presents an
embarrassing dilemmafor the Applicant:whether to respondseriouslyand
at length toevery irrelevantassertionof fact and eachevidentlyerroneous
assertion of law, at the riskof offending thisCourt by explicatingthat which is self-evident toits Members, or to simplyignore most of the
contentsof the PreliminarvObiections.
Bosnia and Herzegovinahas decideto take the middlecourse of addressing
the principalpoints raised in the Preliminarv Objections withouunduly
straining the Court'spatienceby elaborately demonstrating thatwhich is
obvious to al1but the Respondent.
Generalassessmentof thePreliminaryObjections
6. To its greatest regret the Governmentof Bosniaand Herzegovinamust note
that the PreliminarvObjectionsmadeby Yugoslavia(Serbia and Monteneg-
ro) on 26 June 1995are far from corresponding towhat is expectedfrom a
State appearingbefore theInternationalCourt of Justiceand showsthe
Respondent State'sdisrespectboth for the Applicantand for the Court
itself. Unfortunately,it is not an exaggerationto say that the circumstances
in which they have been draftedas well as their content make a mockeryof
the proceedings beforethe World Court.
7. As is well known to the Court, theRepublicof Bosnia andHerzegovina
filed in the Registryan Applicationinstitutingproceedingsagainst Yugosla-
via (Serbiaand Montenegro)on 20 March 1993.On the same day, it filed
a request for the indicationof provisionalmeasuresunder Article 41 of the
Statuteof the Court.
8. After the publichearingsheld on 1and 2 April 1993,the Court issued an
Order on provisionalmeasures on 8 April 1993.In this Order, the Court:
i) considered that "ArticleIX of the Genocide Convention,to which both
Bosnia-Herzegovinaand Yugoslaviaare parties, thus appears
to the Court to afforda basis on whichthejurisdiction of the
Court mightbe foundedto the extent that the subject-matter
of the dispute relatesto "the interpretation, applicationor
fulfillment"of the convention, includingdisputes "relatingto
the responsibilityof a State for genocideor for any of the
other acts enumeratedin articleIII" of the Convention"
[I.C.J.Reports 1993,p. 161;
noted that, "in the circumstances brought toits attention", there
ii)
existed "a grave risk of acts of genocide beingcommitted" [ibid., p.
221,and that:
"the crimeof genocide "shocks theconscienceof
mankind, resultsin grat losses to humanity andis
contrary to morallaw and to the spint and aims of
the United Nations", in the wordsof General Assem-
bly resolution96(I) of 11December 1946on "the
Crime of Genocide",which the Court recalled in its
Advisory Opinionon Reservationson the Convention
on Genocide[I.C.J. Reports 1951, p. 231" [ibid., p.
231;
iii) and indicated provisionalmeasures thatthe Governmentof Yugosla-
via (Serbiaand Montenegro)shouldtake in pursuance of its under-
takingin the Conventionon the Preventionand Punishmentof the
Crime of Genocideof 9 December 1948[para. 52.A, ibid., p. 241
and thatboth Statesshouldtake not to aggravateor extend the
existing dispute[para. 52.B, ibid.].
9. Yugoslavia (Serbiaand Montenegro)having failed to complywith these
measures, Bosniaand Herzegovinafiledon 27 July 1993a second request
under Article 41 of the Statute.Pendingthe hearings, fixed at the date of
25 August 1993,the Presidentof the Court, in accordancewith Article 74,
paragraph 4 of the Rules, urged the Parties "to take al1and any measures thatmay be withintheir power
to prevent any commission, continuanceor encouragementof
the heinousinternational crimeof genocide" [letterof 5
August 1993 - see I.C.J.Reports 1993,p. 3341.
And, on 10 August 1993, Yugoslavia (Serbiaand Montenegro) filedin turn
a request for the indicationof a provisionalmasure, againstBosniaand
Herzegovina "in pursuanceof its obligation under the Conventionand the
Prevention of the Crimeof Genocideof 9 December 1948"[see ibid.].
10. By its Order of 13September1993,the Court did not find "that the
circumstances, as they now present themselvesto the Court, are such as to
require a more specificindicationof measuresaddressed to Bosnia-Herzeg-
ovina" than that indicatedunderparagraph 52.Bof its previous Order
[ibid., p. 3481.The Court, however, considered thatthe grave risk which it
apprehendedhad "ben deepenedby the persistenceof conflictson the
territory of Bosnia-Herzegovinaand the commissionof heinousacts in the
course of those conflicts" [ibid.] and that this perilous situationdemanded
"not an indicationof provisionalmeasuresadditionalto those
indicatedby the Court's Order of 8 April 1993 (...),but
immediateand effectiveimplementationof those measures"
[ibid., p.491.
11. Although Yugoslavia (Serbia and Montenegro)has compliedno more with
this second Order as it did in respect tothe first one, Bosnia andHerzego-
vina abstainedfrom requestingnew provisionalmeasures.
12. Due to the dramatic situationin the countryand the difficultyof handling
an important legal case before theWorld Court in such a situation, the
Governmentof Bosniaand Herzegovinawas forced to ask for extensionof
time for the filing of its Memorial, which, in conformitywith an Order of the Vice-Presidentof the Courtof 7 October 1993,was depositedin the
Registry on 15April 1994.
13. Invokinga so-calledfailureby Bosniaand Herzegovinato meet the require-
mentsof Article 43 of the Statuteand Articles50 and 51 of the Rules of
the Court, the Agent of Yugoslavia (Serbiaand Montenegro), by a Memo-
randum dated9 May 1994, soughtto invokeArticle 53 of the Statuteor
alternatively, asked for a re-submissionof the Memorialwith a new set of
annexes. Althoughthe Registrarhad made clear that most of these com-
plaints were ill-founded[seeletters of 19May 1994and 30 June 1994,
Annexes 1-31,it asked the Agentof Bosniaand Herzegovinato annex at
least the relevantannexesof the documents cited[letter of 30 June 19941.
14. Although, in the view of the Governmentof Bosniaand Herzegovina, such
a request imposedon it an undueburden quite in contrast with the usual
practice followedby the Parties before theCourt, a burden al1the more
heavy in the circumstances prevailingin its country, it decided toanswer
positively inrder to cut short any delay on the part of Yugoslavia (Serbia
and Montenegro). On 3 January 1995completesets of additionalAnnexes
(7 volumes)embodying al1documents citedin the Memorial, including
those publishedand easilyavailable,were depositedwith the Registry.
15. This did not impede, but on thecontrary was a pretext for, the Agent of
Yugoslavia(Serbiaand Montenegro)to request on 9 February 1995 [Annex
41a new seven monthsextensionof the time limitfor the filing of the
Counter-Memorial,which had been fixedby the Vice-President'sOrder of
7 October 1993to 15 April 1995[Annex51. By letter of 8 March 1995
[Annex 61,the Agent of the Republicof Bosniaand Herzegovina strongly protested against this unfoundedrequest and, by an Order of 21 March
1995, the Presidentof the Courtextendedto 30 June 1995the time-limit
for the filingof the Counter-Memorial [Annex 7j.
16. On 26 June 1995, Yugoslavia(Serbiaand Montenegro)filed in the Registry
its Preliminarv Objections,a one hundredand forty five double-spaced
pages, eighty-threeof which are devotedto an entirely irrelevantand
misleading presentationof "Facts".
This result has beenachievedafter fourteenand a half months, to which
must be added anotherperiod of nearly thirteen more monthssince the
presentation of the Application,during which the Governmentof Yugosla-
via (Serbiaand Montenegro)had ampletime to prepare its argumenton the
jurisdiction of the Court or the admissibilityof the Application.Very
unfortunately, such a behaviourshowsthat the Respondentdoes not take
the present proceedings seriouslyand treats with contempt, not only the
ApplicantState and the Courtitself, but also thevery substanceof the case
which concernsa human tragedy, probably the gravestever submittedto
the World Court, a case on aninternationalcrime which "shocks the
conscienceof mankind,results in great losses to humanity (..) and is
contrary to moral lawand to the spirit and aims of the United Nations" in
the words of the General Assembly, quotedby the Courtin its Orders of 8
April 1993and 13 September 1993[I.C.J. Reports 1993, pp. 23 and 3481. Generalobservations on the contentof the PreliminaryObjections
18. According toArticle 79, paragraph2, of the Rules of the Court :
"The preliminary objectionshall setout the facts and the law
on which the objectionis based, the submissions anda list of
the docu~nentsin support:it shall mention anyevidence
which the party may desire to produce. Copiesof the sup-
porting documents shall be attached "
19. Only technicaily atbest, Yugoslavia(Serbiaand Montenegro)'~Preliminary
Ob-iectionsfeign to complywith these requirements.
In particular :
- Yugoslavia (Serbiaand Montenegro)devotes more than half of its
PreliminaryObiections toa long presentationof "facts" which is
both irrelevantand erroneous, based, if at ail, on inaccurateevi-
dence; the Governmentof Bosniaand Herzegovinawill deal with
this aspect of thePrelimina~ Objectionslater in this introduction
[seebelow,para. 29 et seq.];
- the "law" in supportof the long list of sevenpreliminaryobjections
consistsof purely gratuitous,and more often than not obscure,
assertionswithoutany attemptof legal reasoning.
20. In this respect, it is extraordinaryand shockingthat not the slightest
attempt is made to answerBosnia andHerzegovina'sargument regarding
thejurisdiction of the Court and the admissibilityof the Application.As a
matter of fact, during the proceedings,Yugoslavia(Serbiaand Montenegro)
had adoptedan ambiguousattitude,both implying consent tothe Court's jurisdiction and disputing it.As a matterof precaution, the Memorialof the
Governmentof the Republicof Bosnia andHerzegovina devotesconse-
quently a full Sectionof 60 pages to "Jurisdictionand Admissibility" [Part
4, pp. 129-1831.
21. Yugoslavia (Serbiaand Montenegro) does not even attempt to rebut it.
Even more extraordinary:in dl, it cites only nine times the Bosnian
Memorial, threetimes withoutany precise referenceto a particular para-
graph.
It goes without saying thatthe Governmentof Bosnia andHerzegovina
fully maintainsits presentationand respectfullyrefers the Judges of the
Court to its argument in Part 4of the Memorial,which must be considered
as an integral part of this Written Statement.Contrary to the Preliminq
Obiections, Part 4 of the Memorial, seriously addressesthe -not always
serious - objectionshintedat by Yugoslavia(Serbiaand Montenegro)
during the provisional phase, someof whichhad been noted bythe Court
in its Orders of 8 April and 13September1993.Yugoslavia(Serbiaand
Montenegro) does nothingof this kind, which seems to show that it has
surrenderedits previousclaimsas to the lack ofjurisdiction of the Court
and the inadmissibilityof the Application,and that it tries to substitute for
them, new and even moreartificialand capriciousobjections.
23. It must also be noted in additionthat,during the proceedingsrelating to the
interim measures, Bosniaand Herzegovinahad invoked severalother
grounds for thejurisdictionof the Court. It had, in particular, - presented tothe Court a letter, dated 8 June 1992,and addressedto
the Presidentof the Arbitration Commissionof the International
Conference for Pace in the former Yugoslavia,in whichthe Presi-
dents of Serbiaand Montenegro challengedthe Commission's
competence togive an advisory opinionand added:
"The Federal Republicof Yugoslaviaholds the view
that al1legal disputeswhichcannotbe settledby
agreementbetweenthe Federal Republicof Yugosla-
via and the former Yugoslavrepublics shouldbe
taken to the InternationalCourt of Justice as the
principaljudicial organ of the United Nations" [see
I.C.J. Reports 1993, pp. 16-18and pp. 340-3411.
- based itself also on Article 11 (Chapter1)of the Traty of Saint
Germainof 10 September1919on the Protectionof Minonties in
the Kingdomof the Serbs, Croatsand Slovenes[ibid., pp. 339-3401;
- and invoked the principleofforumprorogatum, since Yugoslavia
(Serbiaand Montenegro),not only appearedin Court but also,
1") has alrady expressly accepted thejurisdiction of the Court
on the basis of ArticleIX of the 1948 Convention during the
proceedingson interim measures[see Memorial, pp. 154-158
and 1781;and
2") has itself requestedprovisional measuresregarding so called
"acts of genocide"attributed(erroneously)to the Govern-
ment of Bosnia andHerzegovina, a request whichcan only
be based on ArticleIX of the Genocide Convention[see
above, para. 9 and Memorial, p. 1321.
24. In its 1993 Orders, the Courtexpressed doubtsas to the first two additional
grounds of jurisdictionon aprima facie basis; butit expresslyrecalled that
itsdecisionat that stage, "in no way prejudgesthe questionof thejurisdiction of the
Court to deal with the meritsof the case, or any questions
relating to the admissibilityof the Application...)and
leaves unaffectedthe rightof the Govemmentsof Bosniaand
Herzegovinaand Yugoslaviato submitargumentsin respect
ofthose questions"[I.C.J. Reports 1993,p. 23 and p. 3491.
25. Accordingly, in its Memorial, theGovemmentof Bosniaand Herzegovina
expressed
"the firm conviction(...)that if studiedcarefully, theaddi-
tional basisit offered for thejurisdiction of the Courtwould
prove well-founded" [para.4.1.0.9, p. 1321.
It maintainswholly thisview and as the RespondentState has not deemedit
necessary to challengeit, there is no need to developit further.
26. However, as an exceptionto its total neglectof the argumentmadeby
Bosnia and Herzegovina, Yugoslavia (Serbiaand Montenegro)writes, in
paragraph 1 of the Introductionto its PreliminaryObjections:
"The Applicantrequeststhe Court to base itsjurisdiction on
Article IX ofthe 1948 Conventionon the Preventionand
Punishmentof the Crimeof Genocide(hereafter: the 1948
Genocide Convention). Bearingthis in mind, the FR of
Yugoslaviais hereby submittingits preliminary objections.
The Applicantcannot makehis [sic]retentionof this request
conditionalupon the FR ofYugoslavia's renunciation of its
right toraise preliminary objections.In case the FR of Yu-
goslavia submits preliminary objections, theApplicantcannot
invoke other possible grounds for thejurisdiction of the
Court and proceed to submitnew requests, as set outin para.
4.1.0.9. of the Memorial [p. 1321and para. 4.2.4.5 of the
Memorial [p. 1781.This would meana revisionof the &&
morial and the formulationof a new case, which is not
permitted in this procedure. Beforeinitiatingthe procedure
and inthe course of proceedingsthe FR of Yugoslaviahad not accepted the jurisdictionof the Court over this case" [p.
31.
27. The Respondentmixes twodifferentthingshere:
In the first place, Bosniaand Herzegovinahas indeed reserved its right to
invoke, besides Article IX ofthe 1948GenocideConvention,
"al1or someof the other existingtitles of jurisdiction"IMe-
morial, p. 2951.
this, it maintains wholly.As explainedabove,jurisdiction of the Court to
deal with its submissionscould bebasedjointly or severally on:
- Article IX ofthe Convention,
- forum prorogatum,
- Article 11of the Treaty of Saint Germain,
- and the letter of 8 June 1992;
and, as the PermanentCourt recalled:
"The multiplicityof agreements concludedacceptingthe
compulsory jurisdictionis evidencethat the Contracting
Parties intendedto open new ways of access to the Court
ratherthan to close old ways or to allow them to canceleach
other out with the ultimate result thatnojurisdiction would
remain" [TheElectricityof SofiaandBulgaria(Preliminary
Objection),Series AJB, n077, p. 76, Annex 81.
In any case, if any one of the bases of jurisdiction invokedby Bosnia and
Herzegovinais acceptedby the Respondent State -as it was the case during
the previousproceedingsconcerningArticleIX ofthe Convention -or
otherwise found well foundedby the Court, there is no need to consider the
questionof additional groundsofjurisdiction and the Court is not being
invited to do so [seee.g., I.C.J., Judgmentof 3 February 1994, Case
concerning the Territorial Dispute,I.C.J. Reports1994,p. 15, kinnex 91.
Secondly,Bosniaand Herzegovinaalso reserves itsright "to revive al1or someof its previous submissionsand re-
quests" [Memorial, p. 2951.
This must of course be understoodif the Courtrecognizesa basis of
competencewhich goes beyondArticleIX of the GenocideConvention.In
this respect, Yugoslavia(Serbiaand Montenegro)is wrong when it asserts
that
"this would meana revisionof the Memorial and theformu-
lation ofa new case, which is not permittedin this proce-
dure" [see above, para. 261:
A case is not definedby the Memorialbut by the Application [cf.I.C.J.,
Judgment of 15June 1962,Case concerning theTempleof PreahVihear,
I.C.J. Reports 1962, p. 36, Annex101.This being said, as explainedin the
"Bosniaand Herzegovinahas determined,in its written
pleadings, to focusexclusivelyon the issuesarising out of
the Convention.It thereby seeksto assist theCourt by clear-
ing away other issuesthat mightobscure the main task"
[para. 1.2.0.1.,p. 51.
The Governmentof Bosnia andHerzegovinahas notchangedits mind.
28. Consequently,Bosnia andHerzegovina
i) will not discussin the present Written Statemenp toints which have
not been tackledby Yugoslavia(Serbiaand Montenegro) andre-
spectfullyrefers the Courtto the relevant points ofits Memorialand
to its previouspleadings;
ii) integrallymaintainsthat the jurisdictionof the Court to deal with its
submissionis based, alternativelyandlorjointly on four different
grounds [above,para. 271;
iii) still intendsto sharpenthe focusof the disputeto the most important
matter: the heinouscrime of genocide constitutedby the abhorrent practice of "ethniccleansing"and other acts intended todestroy in
whole or in part the population,culture and religion of non-Serbian
Bosniaand Herzegovina; thescopeof the disputethus conceivedhas
been exposedin the Memorial [pp.176-1831.
Yugoslavia (SerbiaandMontenegro)'~ approachto thefacts
29. The Governmentof the Republicof Bosnia andHerzegovinanotes thatthe
Prelimina~ Ob-iectionas submittedby Yugoslavia(Serbiaand Montene-
gro) contain 83 pages of "Facts" (outof a total of 145pages), supportedby
two volumesof annexesof 976 pages, in which Yugoslavia(Serbiaand
Montenegro)asserts a historyof Bosniaand Herzegovina, a survey of
so-called historical genoclcts againstSerbs from the fourteenth century
onwards, and an assessmentof theears immediatelybefore the outbreak
of the war in Bosnia andHerzegovina.
30. The Governmentof the Republicof Bosniaand Herzegovinaalso notes that
Yugoslavia (Serbiaand Montenegro),in submittinguch facts, has notseen
fit to devoteone word in trying to respondto the substantialfacts as they
have been presentedby the Governmentof the Republicof Bosniaand
Herzegovinain its Memorialof 15April 1994.
31. More specifically,whereas the Governmentof the Republic ofBosniaand
Herzegovinahas regard to the strictly definednature of Preliminary Objec-
tion nev,erthelessYugoslavia(Serbiaand Montenegro)has not seen fit to
refer to Part 2 of the BosnianMemorialnor has denied the extensive
outlineof Yugoslavia's involvemenitn the genocidalacts as presented in
the Memorial. Also Yugoslavia (Serbiaand Montenegro)has not evenseen fit to briefly
respond tothe outlineregardingthe attributabilityof the genocidal actsto
Yugoslavia (Serbiaand Montenegro)as presentedin Part 6 of the Bosnian
Memorial.
In a sense, this would havebeen proper, since the preliminaryphase should
be, logically,mainlydevotedto a legal discussionrelating to thejurisdic-
tion of the Court and the admissibilityof the Application.Nevertheless,
given that thePreliminaryObjectionsare almostentirelybased on facts
presented by Yugoslavia(Serbiaand Montenegro)and of its perceptionof
these facts, while these facts touch the sameissuesas discussedin the
BosnianMemorial, onewouldhave expectedthat Yugoslavia(Serbiaand
Montenegro)would have referred to thesepointsof the Memorial whilst
presenting its PreliminarvOb-iections.
33. On the contrary, Yugoslavia(Serbiaand Montenegro)offers a presentation
of "facts" of its own, which is, for a large part, devoidof any relevance
both in the present phaseand in relationto the substanceof the case. It is,
in this respect,uite amazingto discoverthat Yugoslavia (Serbia and
Montenegro) devotes
- four pages to facts goingback tothe tenth century with a view to
establishing that theSerbs were theoriginalpopulationin Bosnia
and were victimsof Turkish oppression[pp. 7 to 101;
- one and a half page to explainingthat Muslims were consideredas a
minority inside the Kingdomof Serbs, Croatsand Slovenes[pp.
11-12 -see also para. 1.17.2, at p. 861; - eight pages to the "genocidecommittedagainst the Serbs in Bosnia
and Herzegovina during the Second WorldWar" by the Croatian
Ustashas [pp. 12-20 - see also para. 1.17.3., at p. 861;
If this al1can prove anything atdl, it can only be that Yugoslavia(Serbia
and Montenegro)strives to rake up the past, and it confirmsa perception
that its heinous policyof "ethniccleansing"only aims at gettingan unjust
revenge on innocent populationsand at realizinga "Great Serbia" to the
detriment of the non-Serb populations[see Memorial, pp. 59-61].
34. The remainder of the "facts" consistof an "ethnic"presentationglorifying
the BosnianSerbs and showingthe entirely partialand biased approach
adoptedby Yugoslavia(Serbiaand Montenegro).Moreover, the Govem-
ment of the Republicof Bosniaand Herzegovina submits that thefacts
presented in the PreliminaryOb-iections almost invariablydo not corre-
spond with reality. Indeed, most of the Yugoslavallegationsare not
supportedby any evidence at dl. If any documentarysupport is offered, it
is derived from sourceswhich -in mostcases - cannot be considered to be
independenton any view.
Many of Yugoslavia (Serbiaand Montenegro)'~allegations(whichare
themselvesirrelevant) are supportedby articles in Politika, a Serbian
newspaper publishedin Belgrade.This newspaper,however, is firmly
controlledby the govemmentin Belgrade.In order to strengthentheir
control on Politika, Yugoslavauthoritiesappointeda new deputy editor in
March 1991.This appointment surprised the joumalists working for
Politika; their union vehementlyprotested against it:
"The journalists' union said that there was no need for the
unexpectedovemightappointmentof a deputyeditor without
prior consultationwith the paper's editorial staff.The nomi- nation of AleksandarPrljo, who was a high-rankinggovern-
ment official, proves that the rulingparty is not willing to
give in to the independentunion andthe majorityof employ-
ees who are demanding thatPolitika remainsa politically
independentand unbiasedpaper" [Politika, "agreement
insteadof a fait accompli",28 March 199 1, Annex 111.
36. The concernsput forward by thejournalists' union were shared by the
President of the Serbian Democratic Partyin Yugoslavia(Serbiaand
Montenegro) DragoljubMicunovic,who at the time expressed hisserious
doubts on Prljo's appointment.
"It was distressingto see how an institutionlike Politika was
being used as an instrumentof propaganda.This abuse has
probably bolstered the lossof esteemfor Serbian journalism
and Serbian politicalculture",[.."withpublic help"...Annex
121.
37. Unfortunately, thejournalists' protests have beenin vain. Since Prljo's
appointmentas deputyeditor, little has changed. Politikais still entirely
government controlledand it cannot be consideredto provide any serious,
let alone independent, evidencein supportof Yugoslavia(Serbiaand
Montenegro)'~assertions. TheGovernmentof the Republicof Bosnia and
Herzegovina submitsthat even ifthe actions allegedin Politika took place
and remarks reported therein were made (whichis not accepted), they
would be whollyirrelevant for the purposesof these Preliminq Objec-
tions.
38. In the Prelimina~ Objectionsreference is furthermoremadeto a periodical
called Novi Vox,which is presentedby Yugoslavia(Serbiaand Montene-
gro) as in someway representingthe BosnianGovernment's viewsand
policies. The BosnianGovernment emphasizes that it strives to ensure freedomof the pressin Bosnia andHerzegovinaand that there has been no
relationshipbetweenthe viewsand the policiesof the BosnianGovernment
and the conductof the editorsof Novi Vox.
Moreover, only fourissuesof NoviVoxwere ever releasedbetweenthe
Spring and Winter of 1991, of whichonly three were distributedby its
editors. Of each issue no more than an estimated 12,000copies were
produced. The distributionof the periodicalwas stoppeddue to criminal
proceedingsagainstits editors, whichproceedingswere initiatedby the
Prosecutor's Officeof Sarajevo.Whilstthe case was notpursued, the
periodicalhas never been publishedsince. The Govemmentof Bosniaand
Herzegovina contendsthat, even if the allegedlyinflammatoryremarks
containedin Novi Voxwere made, they wouldbe whollyirrelevant for the
purposes of these PreliminaryOb-iections.
39. Also irrelevantand erroneousis the annexedaccountof the two attacks on
civilians, whichaccordingto Yugoslavia(Serbiaand Montenegro) were
cat-riedout by Muslimforces [PreliminaryOb-iections,para. 1.6.101.
In the first shellingon 27 May 1992,at least sixteenpeople, whilewaiting
in line to buy bread, were killed nearthe market onVase MiskinaStreet.
BosnianSerbs immediately emphatically claimedthat the attackwas
committedby Muslimor Croatianforces, in order to provoke international
military intervention.Even thoughthese claimswere later taken up by
western newspapers,UN investigatorson the spot foundno proof of these
accusations. On the contrary, accordingto these investigators:
"It appearedthat the attackin whichthree mortar shellsfell
near a group of Serbs, Croatsand Muslims waitingin line at
a market to buybread, was launchedby Serbian unitsin the
hills Southof Sarajevo. About 12hours before this mortar
attack, artilleryshells werealso apparentlyired from the
same Southernhi11where Serbian gunnershad set up batter- ies, hitting themain maternity hospitalnear Sarajevo'scen-
tre"[FinalReport of the Commissionof Experts established
pursuant to Security Council Resolutio780 (1992), Sl1994-
1674,27 May 1994 andAnnexes,AnnexVI, Studyof the
Battleand Siegeof Sarajevo, para. 275,Annex131.
40. The second mortar attack, on Markale market, referred to in the Prelimi-
naq Ob-iections[at para. 1.6.10 thereofJkilledat least 66 people and
woundedat least 197others. Thisattacktook place on 5 February 1994.
Again the BosnianSerbs claimed thatthis shell, which incidentallywas
only one of the 46 mortar shellsthat hitthe cityof Sarajevothat day, had
been fired by Bosnianforces [FinalReport of the Commissionof Experts
establishedpursuant to Security Council Resolutio780 (1992), SI199416-
74, 27 May 1994 andAnnexes,AnnexVI, Studyof the Battleand Siegeof
Sarajevo, para. 3210,Annex141.After a first investigation, a seniorUS
administrationofficialsaid that Washingtonhad "very little doubt" that
Bosnian Serb forces fired the mortarshellibidem,para. 3220, Annex 151.
Bosnian Serb commander ManojloMilovanoviC,however, denied Bosnian
Serb responsibilityclaiming that "Serb positionsare not thatclose, and we
do not possessarms capableof causingsucha massacre" [ibidem,para.
3212, Annex 141.
41. The UN set up a specid commissionto investigatethe massacre.Its
conclusionswere publishedin the FinalReport of the Commissionof
Experts:
"Canadian Colonel MichelGauthier, who headedthe UN'S
five-membercommissionof inquiryon the marketshelling,
reported that the mortarbomb whichhit the Sarajevomarket
on 5 February could havebeen fired by either besieging
BosnianSerbs or defending BiH forces. The five-member
investigativeteam, backedby two technicd experts, found that themarket blastwas causedby a singlehigh-explosive
bomb from a conventional,factory made 120millimetre
mortar. The precise locationof the weaponthat fired the
round could notbe established.. "The distanceor origin of
fire overlappedeach sideof the confrontationline by 2,000
meters", Gauthiersaid. "Bothparties are knownto have
120mm,and the bombsgo alongwith them. The team has
no reason to believethat either partyoes not have accessto
this typeof ammunition"." [FinalReportof theCommission
of ExpertsestablishedSecuris,CouncilResolution 780 (19-
92), SJ19941674,27 May 1994and Annexes, Annex VI,
Studyof the Battleand Siegeof Sarajevo, para. 3334, An-
nex 161.
Thus, the investigationof the commissionwas inconclusive.It has not been
possible to attribute the attackto either of the parties involvedin the war.
In any case, Yugoslavia(Serbiaand Montenegro)'~claims that the attack
was carried out by Bosnianforcesare not supporteciby the conclusionsof
the specialUN commissionof inquiry. If anything, the conclusionsof the
commissioncontradict MilovanoviC's assertion, that theBosnianSerbs were
not in the possessionof thearms capableof sucha mortar attack.
42. Furthermore, as a further exampleof the use ofblatant propagandamateri-
al to establish "facts", whichare themselvesin any event irrelevant and
erroneous, the Preliminarv Obiectionsrely upon a seeminglyauthoritative
publicationcalling itselffenseandForeignAflairsHandbook1994 [see
Preliminarv Obiections atAnnexPart 1at pp. 410-4161,which is supple-
mentedby TheDefense & ForeignAflairsStrategicPolicy.These publica-
tions are used to supportarguments, interia, concerning theblame for
commencementof hostilitiesin Bosniaand Herzegovina [Preliminary
Obiections, para. 1.9.421,the unconstitutionalityof the existenceof Bosnia
and Herzegovina[Preliminarv Obiections,para. 1.9.341,and the argument that poison gas was used by the forcesof the BosnianGovernment[Prelim-
inarv Obiections, para. 1.6.141.
43. Apart from the fact thatnone of these statementsare relevantor are
corroboratedby independent sources, theDefenseand ForeignAfairs
Handbook 1994itself is open to seriouscriticism.
44. Both ofthe publications referredtooveare often quotedin Serbian
media sources, upon which theythemselves relyfor materials;hence a
circular (and consequentlymutuallycorroborating)in is demonstratedin
these publications.No independentor reputableintelligenceor defense
analyst or crediblebody ofexpert opinion attachesany weight or credence
to these publications.TheDefenseand ForeignAflairs Strategic Policy
describing itself as "The international journalof national management and
nationalsecurityarrangement".Indeed,as an exampleof the exaggerative
nature ofhesejournals, the Courtis referred to informationcontainedin
the 1994Defenseand Foreign AflairsHandbook,and the 1994 textpro-
duced by the Londonbased InternationalInstitute for Strategic Studies,The
MilitaryBalance, the latter beinga journal whosereputationand credibility
is well established.The figures refer to the CroatianArmy BattleOrder as
follows [Annex17:
HANDBOOK MILITARY BALANCE
Personnel 167,000 100,000
Tanks 530 173
Combat Aircraft 70+ 20
Air Force Personnel 5,000+ 30045. Allowingfor rnarginof error, nevertheless theDefense and ForeignAfairs
Handbook 1994 clearly grossly inflates themilitarystrength ofCroatia.
Whatever purpose maybe servedby this, it is not accuracy.
46. Indeed, oneof the few independentjournals rernainingin Serbia, Vreme,
investigated the publishersof both abovementionedpublications.Annexed
hereto is an article writtenby its editorlos Vasic on 5th April 1993
titled "Propaganda War;EnglishSerb Lovers" .
47. In the article, Mr. Vasic, himself ofSerbianorigin, describes the linksof
the publishersof the Defense and ForeignAfairs Handbookand The
Defense and ForeignAfairs StrategicPolicy with pro-Serbianinterests and
States:
"TheDefense and ForeignAfairs Strategic Policyis of
marginal significancewithin specialistcircles: that which is
seen in the published text shows thaTt he Defenseand For-
eign Afairs StrategicPolicydoes not relyvery much on
facts. That is,insteadof the "fieldresearch" of which it
boasts, The Defenseand ForeignAflairs Strategic Policysent
its two employeesto Belgradeto hold an interviewwith
General ZivotaPanic [thenChief of Staff of the Yugoslav
Army] and to stock up on publications from"Al1the Serbs
of the World" propaganda apparatus.The interviewwith
General Panic was typicaland predictable.The data (loosely
called facts)come from fringewritingsin propagandapam-
phlets which the authorscollectedin Belgrade[. ..]" [Annex
181.
48. As a further illustrationof the use ofirrelevant propaganda rnaterialas a
vehicle to introduceenoneous facts, the PreliminaryOb-iectionsmake
copious referenceto a Mr. YossefBodansky,descnbed therein at para.
1.6.16 as "the distinguishedAmericanexpert on terrorism [...]who was the Director of the US Houseof RepublicanTask Force on Terrorism and
UnconventionalWarfare [Incidentally,Mr. Bodansky'sname also appears
on the Defense and ForeignAflairsHandbook1994as one of its main
contributors].
49. Repeatedreference [seeinter alia, Prelimina~ Objections, paras. 1.6.14,
1.6.16 to 1.6.171is madeto TargetArnerica,a text writtenby Mr. Bodan-
sky [PreliminaryObiections, Annexpart 1pp. 290-2951.This is used to
justify, inter alia, the assertions(uncorroboratedby any independent
source) that chlorinegas was usedby BosnianGovernmentforces during
combat and thatan Islamicholy warwas being wagedin Bosnia-Herzego-
vina againstthe Serbs.
50. Apart from the fact thatthese assertionsare both untme and irrelevant, Mr.
Bodanskyis not of repute, nor is the Committeewhich he participatedin
officiallyapprovedof or authoritativeasto the viewsof the administration
of the United Statesof America. Indeed, his text, which is annexed to the
Prelimina~ Obiections,is not recognizedor acceptedby any independent
body of expert opinion,let alone housedin the book depositoriesat the
U.S. Library of Congressor the BritishLibrary, its obscure publishers
having ceased tradingsoonafter the book was published.
51. Whilst the Governmentof Bosnia andHerzegovina maintains thatthe
factual materials containedin the PreliminarvObjectionsare overwhelming-
ly erroneousand irrelevant, the aboveexamplesare placedbefore the Court
as illustrationsof the deficienciesherein.52. Indeed, as for the perverse suggestion thatethnic or religioushatred
emanates only fromnon-Serbiansources, the desire of the Bosnian Govern-
ment and its leadershipto maintainand preserve an ethnicallyand religious
diverse and tolerantnation has been evidentsince well before the atrocities
began to be committed againstits people.
The scumlous personal attack madein the PreliminaryOb-iectionsupon the
character of Mr. Alija Izetbegovic the Presidentof the Presidencyof the
Republicof Bosniaand Herzegovinadoes not merit a response; neverthe-
less, some observationsto demonstrateits fallaciousnature will be made.
53. The Preliminary Obiectionsrefer to the President's writingsin 1970,
namelya document entitled the Zslamic Declaration[at Annex Part 1, pages
171-2401.At pages 172-3,an introductionis annexedwhich is not part of
the Declarationand does not seem to emanate fromany recognised source.
The President, a retired lawyer, was sent to prison in a trialring the
Communistera, which the introduction itselfat page 172 Stateswas right-
fully denounced(line 8)and whichwas assessedas "Stalinist"(line 14).
54. By taking quotes out of context,and emphasizingcertain passages, the
Preliminary Ob-iectionsappear to portray thePresidentas a man who is a
religious extremist.Taken out of contextand readin isolation, such an
impression maybe created, but wouldbe at opposite endsfrom the truth.
55. One merely needs to read the Zslamic Declaration(even the annexed
version [at AnnexPart 1, pages 171-2401,although the translation is
materiallyinaccurate)to establish thisis incorrect. Whilst references are
made in the text to various namedStates, not one reference ismade toBosnia. A few illustrationsfrom the Declarationare givenby way of
example:
"(THE EQUALITYOF PEOPLE)
[..] Two facts of paramountimportance - the unity ofGod and the
equalityof al1men -havebeen laid downby the Koran (the sacred
text of Muslims)in sucha clear and explicitway that theyallow for
only one, literal interpretation, there no divinitybut one God;
there is nochosen nation, chosenrace or chosen class - al1men are
equal [..] People mustbe distinguishedbetween -if any distinction
is to be made - primarilyaccording towhat theyreally are, meaning
accordingto their spiritualand ethicalvalue (the Koran, suras
49113)" [page200, last paragraph].
[.-1
"(FREEDOMOF CONSCIENCE)
[..] However muchpuritan in moralsit maybe, Islam is, because
of its opennessto natureandjoy, broad-minded, astestifiedto by
the entire historyof Islam. As it recognisesGod, but does not
recogniseany dogmaor hierarchy,Islamcannot turn into a dictator-
ship and in it any form of inquisitionor spiritualterror has been
rendered impossible" [page 207 -208 12thto 17thline].
[.-1
"(CHRISTIANITYAND JUDAISM)
[Referring to Christianityand Islam] [..] the future could serve as
an exampleof understandingand CO-operation betweentwo major
religionsto the benefitof al1peopleand the humankind, as opposed
to the past which witnessedtheir senselessintoleranceand frictions
[..] A similar principleunderliesthe attitudeof Islam to Judaism.
We have livedwith the Jewsfor centuriesand evencreated a
culture, so thatin certain casesa distinctionbetweenIslamic and
Jewish elementsin thatculture is impossibleto make with certainty"
[page229-230,page 230 12thline to 21stline].56. Whatever interpretation one placesupon the writingsof the President, it is
irrelevant for the purposesof the Prelimina~ Obiections.The above
extracts in anyevent speak for themselves.
57. It surely is not seriouslybeing contendedby Yugoslavia (Serbia and
Montenegro)that the Declarationexplained,let alonejustified, these
genocidalacts.
Yugoslavia(Serbiaand Montenegro) 'sinvolvement
in the warin Bosniaand Henegovina
58. In seekingto raise preliminary objectionsYugoslavia(Serbia and Montene-
gro), interdia, submits that:
- an internationaldisputebetween Yugoslavia(Serbiaand Montene-
gro) and the Republicof Bosniaand Herzegovinahas not existedat
any materialtime, and,
- Yugoslavia (Serbiaand Montenegro)has not carried out any act of
authorityand that, since April 1992,it had nojurisdiction over the
territory of Bosniaand Herzegovina.
59. It is submittedthat even ifthese were valid substantiveissues, they needto
be determinedby the Court upon its judgementon the merits of this case
and notat this stage.
60. Furthermore, theRepublicof Bosniaand Herzegovinamaintainsits views
on the attributabilityof the genocidalacts to Yugoslavia(Serbiaand Montenegro) - an issue whichof course will beelaboratedupon during the
merits phase of these proceedings.
61. To properly inform the Court, theGovemmentof the Republicof Bosnia
and Herzegovinanevertheless considersit appropriate to state that the
Belgrade authoritieshave been continuingand are continuing togive active
support to the Serb perpetratorsof genocidalacts in Bosnia andHerzego-
vina since the Memorialwas filedon 15April 1994.
62. The most recent exampleof this Belgradeinvolvementis the forced recruit-
ment of Serbs in Serbiaproper by Belgradeauthorities.An exampleof
such a recruitmenttook place in June and July 1995 andwas effectedon
behalf of the BosnianSerb leadershipin Pale; the recruitedSerbs were
forcefullysent to Bosniaand Herzegovina totake part in the war against
the non-Serb populationof Bosnia andHerzegovina.
63. The forced recruitmentof Serbs in Serbia properdid not pass unnoticed:
Yugoslav media,like the newspaperVremeInternational, covered this
forced mobilisation,which wascoordinatedand carried out by the Ministry
of Interior in Belgrade. On 26 June 1995 VremeInternational published the
story of Mirko Drljaca, who was injuredand arrested whilehe was trying
to break out of the fire brigadefacilityin NoviSad, Yugoslavia(Serbiaand
Montegro). In this facility the forcefullymobilizedSerbs were kept impris-
oned while awaiting deportation to the battlefieldsin Bosnia andHerzego-
vina and the Serb-heldtemtories in Croatia [VremeInternational, "Tribute
in blood", 26 June 1995,Annex 191. Amongothers in this article, Serbia's
President Milosevic'wife, MijanaMarkovic, is quotedadmittingthat
Drljaca was arrested: "According toDr. Markovic, Mirko Drljacaand the man
who wejust describedbelong to "the group of the fighters
for the Serbian causein Bosniaand Srpska Krajina.He [Le.
Drljaca] lives in Belgrade,he did not spendone day in the
war and heis not intendingto do so." Peoplelike him are
now being arrested on the streets, in apartments, companies,
refugee camps, studenthouses, cars, restaurantsand there
are already five thousandof them capturedand sent across
the Drina river"[ibid.p. 14, last column].
64. As mentioned above, this recruitmentof Serbs was organizedby the
Ministry ofInterior in Belgrade.Men bom on the territory of Bosnia and
Herzegovina,but livingin Yugoslavia(Serbiaand Montenegro), were
officiallysummonedtojoin the armyof the so-called RepublikaSrpska in
Bosnia andHerzegovina.
One of these persons who receivedsucha summons issuedby the authori-
ties in Belgradeis NemanjaCrnogorac. On 29 June 1995he was sum-
moned in writing to report at theofficesof the Ministryof Interior in
Suboticain the north of Yugoslavia(Serbiaand Montenegro). Hewas
ordered to bringdong his "personal hygienearticles" and warned thathe
"couldbe brought to thePolice Headquarters"if he would not respondto
the summons[The fulltext of the summons is annexedto this Statement
Annex201.
65. Also, the homfic attackupon and brutaltakeoverof Srebrenicain July
1995 clearly shows Belgradeinvolvement.The Americannewspaper
Newsday of 12August 1995reports that western and Bosnian intelligence
sourceshave evidence
"that the commanderof the Yugoslavarmy, general Mom-
ci10Perisic, was on a mountaintopacross the border in
Yugoslavia,sendinginstructionsand counsel toGen. Ratko Mladic, the commanderof BosnianSerb militaryforces. The
radio conversations,interceptedby intelligenceagencies,
took placebefore, during and after the battlefor the enclave
capturedby the Serbs on July 11.
"Mladicand Perisic conferred constantlyabout their strategy
and what theywere doing," saidone of the western officials,
who like al1of the intelligenceofficersinterview4 asked to
remain unidentified.The officers said they are still analyzing
the radio intercepts,but "Mladicis always asking Perisic
about what he shouldbe doing. This didn't surpriseus,
because they are the samerank, but Perisic was clearly in
command andhad the upper hand" " [Amex 211.
Of course, these reports havebeen deniedby Yugoslavofficials. The
Governmentof the Republicof Bosnia andHerzegovinaintends, however,
to produce further evidenceon these issuesduring the course of the merits
phase of these proceedings.
66.
In this contextit is relevantto note that GeneralMladic (the militaryleader
of the so-calledBosnianSerbs)was recentlyindictedby the War Crimes
Tribunal in The Hague for committing genocidalacts during the above-
mentionedtakeoverof Srebrenica[Annex221.
67. Althoughin the contextof this case, whichconcerns genocide,there is no
relevance whatsoeveras to the assertionthat there actuallyis a civil war
going on in Bosniaand Herzegovina, the Government of the Republicof
Bosniaand Herzegovinais more than happy to address this question.
The Governmentof the Republicof Bosniaand Herzegovina submitsthat
this is not the case.The peopleof Bosnia andHerzegovinaare made the
victims of a war of aggressioninstigated,organisedand/or facilitated
and/or acquiescedin by the Belgradeauthorities.68. If one would acceptthat Yugoslavia(Serbiaand Montenegro) didnot, and
does not, play anyrole whatsoeverin the war in Bosniaand Herzegovina,
it is impossible toexplainwhy the Security Councilof the United Nations
has repeatedlyimposedand continues to implementeconomic sanctions on
Yugoslavia (Serbiaand Montenegro).It is not very likely, to Saythe least,
that the world communityhas erred during the lastfive years in its percep-
tion ofBelgrade's rolein the war in Bosnia andHerzegovina.
69. For the rasons outlinedabove, no attemptwill be made to address specific
commentson each and every factual assertionmadein the Preliminary
Objections.The Governmentof the Republicof Bosnia andHerzegovina
submitsthat this is not only unnecessary, butalso inappropriate, given the
strict provisionsof Article 79 (1) of theules of the Court, which require
Prelimina~ Ob-iections(andaccordingly statementsin response thereto) to
relate to issuesof jurisdictionand admissibility.
Scopeand general schemeof this Statement
70. Given the natureof the PreliminaryObjectionsof Yugoslavia(Serbiaand
Montenegro)it is both easy anddifficult to respond. Easy since the Gov-
ernment of the Republicof Bosniaand Herzegovinasubmitsthat the
PreliminaryObjections raisedby Yugoslavia(Serbiaand Montenegro) lack
any relevant andlor crediblefactual substance.Furthermore, thePrelimi-
narv Obiectionsdo not containany substantivelegal submissionsrelevant to
the questionof jurisdictionof the Court andlor the admissibilityof the
Applicationof the Governmentof the Republicof Bosnia andHerzegovina
in accordancewith Article79 (1) of the Rules of the Court. Difficult because the legal argumentis so limitedto bare assertionswithout any
evidenceor substancethat it does not lenditself to serious rebuttal.
71. However, the Governmentof Bosniaand Herzegovinawill briefly and
successivelytackleeach of the sevenpreliminaryobjectionsraised by
Yugoslavia (Serbia and Montenegro). RESPONSETO THE
FIRST
PRELIMINARYOBJECTION
The first PreliminaryObjection raisedby Yugoslavia(Serbia andMontene-
gro) reads as follows:
"A.1. The existenceof civil war at the materialtime renders
the Applicationinadmissible"[Prelimina~ Obiec-
m, p. 911.
This first objection, holding thatthe existenceof civil war in Bosniaand
Herzegovina renders the applicationof the Republicof Bosniaand Herze-
govina inadmissible, isentirelywithoutmerit.
1.2 The activeparticipationof forcesand personnelof Yugoslavia(Serbiaand
Montenegro)in the combatin Bosnia andHerzegovina, inthe course of
which genocidewas committed, renders Yugoslavia(Serbiaand Montene-
gro) aparty to a "dispute"with the Republicof Bosniaand Herzegovina.
As to such disputebetweenStatesParties to the 1948 Genocide Conven-
tion, mandatoryrecourse to the InternationalCourt of Justicerovided
by Convention ArticleIX. The Applicationtherefore is entirely admissible.
1.3 The Respondentinvitesthe Court todeclare as a matter &f that the
complaintof the Republicof Bosniaand Herzegovina is inadmissible
because the acts complainedof occurredin the course of a civil war in
Bosniaand Herzegovina.The Respondentalso invitesthe Court to declare
the complaintinadmissibleas a matteroffactbecauseit contends(without
any substance) thatit is not the perpetratorof the actsd in the
complaint.1.4 The Court is respectfullyrequestedto rejectboth contentions:the first as a
matter of law and the secondbecauseit goes to the meritsof the case.
The essenceof the Republicof Bosniaand Herzegovina's case is that the
1.5
horrendous actsof genocide,complainedof, and enumeratedin the Memo-
rial of15 April 1994,are attributableto Yugoslavia(Serbia andMontene-
-
gro). These contentionsare well supportedby evidence presentedin
Bosnia'sMemorialand, whatevertheir ultimatements and weight as
determinedby the Court, theyprovideample foundationfor the Applicant's
invocationof Article IX ofthe Genocide Convention.If so, it follows that
under Article IX of the Convention, theApplicant haspresenteda justicia-
ble question admissibleto this Courtfor determinationon the merits.
1.6 This dispute falls squarelywithinthe purviewof ArticleIX of the Genocide
Convention.The complaint brought thereunderis entirely admissibleunless
the law on whichit is based is faciallyincorrector the facts, if proven,
would not entail culpability.The Applicant hasdemonstrated thatits case is
soundlybased on fact and law: that atrocitieswere committedwhich
amount to genocide.This positionis fully confirmedby the Indictment
issued on 25 July 1995 againstRadovanKaradzicand Ratko Mladic which
states that they "from April 1992,in the territory of the Republicof Bosnia
and Herzegovina,by their actsand omissions, committedgenocide"
[Amex 1.1, para. 17.1.The detailsof their allegedgenocideare set out in
the indictment. These are sufficientto establish probable causefor convic-
tion before the Tribunaland, consequently,are surely sufficientto establish
primafacie evidenceof genocide soas to give this Courtjurisdiction over
the subject matter for purposesof this civil complaintunder Article IX of
the Convention.1.7 The applicablelaw is ArticleIX ofthe Genocide Conventionwhich States:
"Disputesbetweenthe ContractingParties relatingto the
interpretation,applicationor fulfillmentof the present Con-
vention, including thoserelating to the responsibilityof a
State for genocideor for any of the other acts enumeratedin
Article III, shall besubmittedto the International Courtof
Justice at therequestof any of the parties to the dispute."
1.8 The Court, in interpretinga treaty text, employs the rules of interpretation
restated in the case concerning theTerritorial Dispute(LibyanArabJama-
"in accordancewith customaryinternationallaw, reflected in
Article 31of the 1969 ViennaConventionon the Law of
Treaties, a treaty mustbe interpretedin good faith in accor-
dance with the ordinarymeaningto be given to its terms in
their contextand in the lightof itsobjectand purpose. Inter-
pretation mustbe based upon the textof the treaty. As a
supplementary masure recourse maybe had to meansof
interpretationsuch as the preparatorywork of the treaty and
the circumstancesof its conclusion" [I.C.J. Reports1994,
Judgment, pp. 21-22,para. 41, Annex1.2. See also Case
ConcemingMaritimeDelimitationand TerritorialQuestions
(Qatar v.Bahrain),Jurisdictionand Admissibility, Judgment
of 15 February 1995,p. 18, para. 33.1.
1.9 The Republicof Bosniaand Herzegovina,in its Memorialof 15 April
1994,has sought toaid the Courtin its interpretationof Article IX of the
Genocide Convention - notwithstandingthe clarity of its tex- by demon-
strating through historiccontextual evidenceand preparatory work that the
acts of which Bosnia andHerzegovina cornplainsfall squarelywithin the
purview of the Convention,that the Respondent'sacts are precisely those
the drafters sought toprohibit, and that the InternationalCourt is precisely
the body investedwith authority to resolve disputes arising out of conflict- ing assertionsregarding the culpabilityof allegedacts and the responsibility
for such acts [Bosnia andHerzegovinaMernorialof 15 April 1994, pp.
20-208, paras. 5.2.2.1-5.2.3.8.1.
1.10 The Applicationof Bosniaand Herzegovina preciselyturns on the exten-
sively documentedand substantiatedclaim that the Respondentauthorities
"have decided, organizedand directed"and haveat al1materialtimes
participatedin "organizingand directing the shameful policyof genocidal
'ethniccleansing'with a view to achieving thechimericaldream of a
'Greater Serbia'by meansof aggression"[Bosnia andHerzegovinaMemo-
-ial, 15 April 1994, p. 186, para.4.3.2.3.1. The Respondent nevertheless
asks the Court to declare sucha cornplaintnon-justiciablebecause it asserts
that the events occurredin a civil war. The Court shouldreject as a matter
of law so manifestlyerroneousan exceptionto the obligationsimposedby
the Convention.The Respondentasserts that the "circumstanceswhich
constitutethe background[of the Applicant'scase] are dominatedby
elementsof civil strife and, consequently,no international disputeis
involvedover whichthe Court can properly exercise its competence"
[Preliminaw Obiections,para. A.1.l., p. 911.Even if, which Bosnia
utterly rejects as a matterof fact, the crisis were one of civil strife alone,
the Court shouldreject thisuntenablepropositionof law which, if accept-
ed, would destroy the Convention'sabilityto protect not onlyBosniabut
also other Statesthat, in future, maybe the victimsof genocidalinterfer-
ence by malevolentexternalintemenorsin situationsof civil strife. More-
over, the Court will surelywish to confirm that the Genocide Convention
extendsto al1parties the right to bringan action againsta party in whose
jurisdiction, or with whoseparticipation,a violationis alleged, whether or not that violationoccurs in situationsof internal violence, externalaggres-
sion, or both.
1.11 In thus pleading, the Respondentappears to expect thisCourt to accept the
extremely dangerous(as well as legally unsupported) propositionof law
that civil wars, per se, do not implicate international law.The Respondent
would have theCourt dismissas inadmissible allegedviolationsof interna-
tional law by a statewhen thoseacts occurin the course of a civil war in
another state.The Republicof Bosniaand Herzegovina urgesthe Court to
reject this pernicious doctrineand toreiterate itsownuling that a com-
plaint is cognizablein internationallaw whena state intervenesin another
state'scivil war in supportof an insurgentmovement [CaseConcerning
MilitaryandParamilitaryActivitiesinandagainst Nicaragua (Nicaragua
v. United StatesofAmerica),1986I.C.J. Reports14at para. 292(3),
Judgmentof June 27. Annex 1.31.This interventionmay even be in the
form of encouragement to the parties to the civilar to engage in acts
amounting to genocide.
Of course this Court does not havegeneraljurisdiction as between the
parties to determinethat aggressionwas committedby Yugoslavia (Serbia
and Montenegro) against the Republic of Bosniaand Herzegovina. Howev-
er, when such aggressionuses as its method ofoperationthe systematicand
deliberatedestructionof entirepopulations,through murder and terrorism
designed toachievethe forced "ethniccleansing"of vast territories, it
amountsto the genocide prohibitedby the Convention.It is thus specifical-
ly subjectby the GenocideConventionto thejurisdiction of this Court.1.13 Contrary to the Respondent's implicit assumption, the Genocide Convention
not onlyprohibits acts occurringwithinone statebut also trans-boundary
genocide. The U.N. General Assembly,the U.N. Commissionon Human
Rights' SpecialRapporteur, the C.S.C.E. and the Councilof the European
Community haveeach reachedthe sameconclusion:that, to quote the
Vienna World Conferenceon HumanRights, "Serbia-Montenegro"is a
"perpetratorof a crime" which "constitutes genocidein violationof the
Conventionon the Preventionand Punishmentof the Crime of Genocide"
[A/Conf.157124(Pt. l), p. 47 and Memorial, 15 April 1994, p. 255, para.
6.2.2.111 by virtue of its trans-boundaryacts in the Republicof Bosniaand
Herzegovinain participating directlyin acts ofethniccleansing, rape,
terror and murder throughthe instrumentalityof the JNA andby foment-
ing, aiding and abettingsuchacts by the insurgentSerb forcesin Bosnia
and Herzegovina.
1.14 The Respondentin its Preliminarv Objectionswould have thisCourt reject
out of hand as inadmissible the Applicant's contention thaitt (Yugoslavia
(Serbia and Montenegro))aided and committedgenocidein the Republicof
Bosnia andHerzegovina. These denialsof complicity,if taken seriously, go
entirely to the meritsof this case. The question whetheror not Yugoslavia
(Serbia and Montenegro) perpetrated the genocidaa lcts allegedin, and
demonstratedby, the BosnianMemorialof 15April 1994is precisely the
issue to be determinedby this Courtat the Merits stageof this adjudica-
tion.
1.15 Furthermore, the Respondentasserts that the "protagonistsin reality are
four contending political elementswithinthe territory of the formerRepub-
lic of Bosnia andHerzegovina"[PreliminaryObjections,p. 91, para. A.1.2.1. Whether thisis true, or whether, as the Applicantasserts [Memo-
-ial, 15 April 1994,pp. 59-94, sec. 2.3.1-2.3.91, the Respondentis directly
and indirectlyinvolvedin the genocidethat hasaccompanied the waron
Bosniantemtory, is precisely the issue to be determiby the Court at
the merits stage of this litigation.To hold the case inadmissible,without
first giving full consideration to the evief Yugoslavparticipationin
the genocidalacts in Bosnia, wouldbe to determinethe Ments of the
Applicant's allegationswithoutproviding the Applicantwith a full hearing.
1.16 As Professor ShabtaiRosennehas succinctly summarizedthe procedural
rule that has evolved fromthe Court'spractice: there is a
"fine...distinctionbetweena preliminaryobjection, especially
as to admissibility,and a defenceto the merits. As a rough
rule-of-thumb,it is probablethat when the facts and argu-
ments insupportof the objectionare substantiallythesame
as the factsand argumentson which the meritsof the case
depend, or when to decidethe objectionwould require deci-
sion on what, in theconcretecase, are substantiveaspectsof
the merits, thelea is not an objectionbut a defenceto the
merits" [Shabtai ROSENNE, TheLawandPracticeof the
InternationalCourt, 2nd Rev'd. Ed., p. 459 and cases cited
and consideredon pp. 459-61 (1985), Annex1.41.
The Republicof Bosniaand Herzegovina, at this (admissibilit)tage
merely asks the Court to determinethatfit were demonstrablethat acts
amounting to genocidewithinthe meaningof the 1948 Conventioncan be
shownto have been committedwith the participation, assistance, direction
andlor encouragementof Yugoslavia(Serbiaand Montenegro), the those
acts by the Respondentcan be denouncedunder the GenocideConvention.
The Republicof Bosniaand Herzegovinaalso asks theCourt to find that
this could be so whetheror nothoseacts occurred withinthe contextof a civil war in which other forces werealso engaged. The Applicant, unlike
the Respondent,makesno requestto the Court todetermineat this stage
whether or not the alleged genocidalacts in Bosniadid occur, nor whether
Yugoslavia (Serbiaand Montenegro)was implicatedin those acts in a
manner anddegree so as to constitute genocide. These are matters to be
addressed at the Merits phase and, althoughBosniaand Herzegovinais
ready and anxiousto enter this stageof the argument, it deplores the
Respondent's effortto delay this caseby raising such substantiveissues(in
however shallowa fashion)as part of its preliminaryobjections.
1.18 In other words, the admissibility issuesraised by the Respondentare
entirely irrelevant.This case is admissiblebecausea well-founded com-
plaint has been broughtby a party to the Genocide Convention against
another party under Article IX of that treaty. That the claim arises out of
violationscommittedin the courseof a civil war in no way renders the
Convention inapplicablebecausethoseviolations were perpetrated(or so
the Applicantallegesand shall demonstrate) by,as also in concert with, the
Respondentwhich is a party to the Convention.For the Court to sustain
Serbia's FirstObjectionin a preliminary stageof the process would render
the Conventionmeaninglessin the very circumstances -interferenceby a
state in a neighboring state'scivil conflict in which, in the contemporary
context, it is most likely (alas!)to be applicable.
1.19 The fact that thiscomplaintis broughtin the contextof ongoinghostilities
(and ongoing genocide)in no way -as the Respondentappears to suggest
[PreliminarvObiections, id. p. 91, para. A. 1.1: "circumstances [...]
dominatedby elementsof civil strife [where]consequentlyno international
dispute is involved. .. ."] - makesthe subjectmatter nonjusticiableandthus inadmissible.To quote the Court'sdecisionin the Jurisdictionand
Admissibilityphase of the Nicaraguacase:
"The Court isnot beingasked to bring an armed conflict to
an end by nothingmore than the powerof its words" [Mili-
tary andParamilitaryActivitiesin andagainstNicaragua
(Nicaraguav. United States ofAmerica),Jurisdictionand
Admissibility, Judgment,I.C.J. Reports1984, Annex 1.5, p.
392 at 437, para. 1001.
Rather, the Courtis being asked todefinethe law and determine the facts
in order to contributeto the eventual resolutionof this horrendous situation
and topromote the historicprocessof healingamong the parties. RESPONSETO THE
SECOND
PRELIMINARYOBJECTION
2.1 The authorityof the recognisedGovernmentof Bosniaand Herzegovinato
institutehese proceedingsis beyondquestion.
2.2 The second PreliminaryObjection raisedby Yugoslavia (Serbia and Monte-
negro) reads as follows:
"A.2. Alija Izetbegovicwas not competent toissue authoriza-
tion for the initiationof proceedingsbefore the Court"
liminary Objections,p. 921.
The Respondent ailegesthat Bosnia andHerzegovina'sApplicationis
inadmissiblebecausethese proceedingsbefore the International Courtof
Justice were impropery institutedby the Presidentin "overstepping his
authorityand violatinga relevant provisionof internai law"reliminarv
Ob-iections,June, 1995,paras. A.2.1 and A.2.3-A.2.8, pp. 92-93].
Specifically,the Respondentasserts that "the letter of authorization forthe
2.3
initiationof proceedingsand the appointmentof agentswas signedby Alija
Izetbegovic, asthe Presidentof the Republic. . ."[Id. para. A.2.4.1.
This, the Respondentasserts is invalidauthorisation"under the regulations
of internal law"[ibid.].
2.4 It need hardly besaid that thecredentialsof diplomats, agentsand other
representativesof the Republicof Bosniaand Herzegovinain the multiple
international forahave everywherebeen acceptedas valid in accordance
with applicablelaw and practice. This is asue of international organiza- tions as of foreign governments.These credentialsare signedby President
Alija Izetbegovic.The Court shouldtakejudicial noticeof this factand
dismiss the effort by the Respondentto challenge the validityof the process
by which this case has been initiatedby the Applicant.
It would surely be inappropriateforthis Court to accept the mischievous
invitationto enter upon an examinationof the domesticpolitics or constitu-
tional legitimacyof a governmentwhichhas been universallyrecognized
and whosediplomaticagentsare everywhereduly accredited. Such efforts
to review domesticconstitutional legitimacyof governments havealways
been firmly rejected by courts and tribunaïs[Great Britaiv. CostaRica,
1923,ReportsInternationalArbitral Awards, 1at 369, 381. See also
Republicof Peru v.DreyfusBrothers, (1888)Supreme Courtof Justice,
Law Reports 1888,348. Annexes2.1 and2.21.
2.6 The Republicof Bosniaand Herzegovina speaksas the Applicantin this
action through its recognizedgovernmentalofficiaisand authorized agents
[Mernorialof 15 April 1994,p. 141,paras. 4.2.1.20-4.2.1.21 .].The
Court, like foreign States,is entitled torely on the authenticityof the
submissionsmadeby Bosnia andHerzegovina's dulyauthorized officiais
and agents [Statusof Eastern Greenland,PCIJ, 5 April 1933, PCIJ, Ser.
AIB, No. 53, 22 AT 90-92. Annex2.31.
2.7 In its Memorialof 15 April 1994, the Republicof Bosniaand Herzegovina
has alluded to the fact[pp. 134-137, paras. 4.2.1.2-4.2.1-111that its
internationalstatushas been consideredand confirmedby the Arbitration
Commissionof the International Conferencefor Peace in the former
Yugoslavia.This positionhas constantlybeen reiteratedby U.N. organs as, for example, when the Security Councilwent on record as "profoundly
shocked"by the "outrageousact of terrorism" that led to the killing of the
Deputy Prime Ministerof the Govemmentof Bosniaand express4 its
"sincerecondolences"to the "peopleand Govemmentof the Republicof
Bosnia andHerzegovina"[Presidential Statementon behalf of the Council,
3159thmtg., 8 January 1993.48 SCOR 1 (1993),Memorial, Annex 3-11,
pp. 11-12].
In refusing toenter intoa discourseon the intemal constitutionallegitimacy
of its govemmentthe Applicantmerelyadheres to establishedinternational
law which makesthe issue frivolous [Cf. JENNINGS and WATTS, Oppen-
heim'sInternationalLaw, 9th ed., vol. 1,Pt. 1, p. 153: "constitutional
legitimacy cannot beregardedas an establishedrequirementfor the recog-
nition ofgovemments." Annex2.41. It in no way concedesthe accuracy of
any part of the highlyimproperand falseassaulton its legitimacyin the
Respondent'sSecondPreliminaw Obiections.
Having said that, there is, however, no reason for the Applicantnot to
invite the Court totake cognisanceof the followingfacts, which establish
that PresidentIzetbegovicwas duly appointedPresidentof the Presidency
of the Republicof Bosnia andHerzegovinaand that he exercised his
functionsin accordancewith the relevant constitutionalprocedures.
2.9 On 18-19 November1990, the first democratic multi-partyelections were
held inthe Socialist Republicof Bosnia andHerzegovina.The three largest
parties, the Partyfor Democratic Action, the CroatianDemocraticUnion
and the Serbian Democratic Partyachieved a total of 202 out of 240
availableparliamentaryseats. Their representativesalso obtained significant
majoritiesin the electionsfor membershipin the Presidencyof the Socialist Republicof Bosniaand Herzegovina.As a result of anallianceagreement
among the parties,Alija Izetbegovicof the Party for DemocraticAction
was appointed Presidentof the seven-memberPresidency. Jure Pelivan of
the Croatian DemocraticUnion becamePrime Minister, and Momcilo
Kraijsnikof the Serbian Democratic Partywas electedPresidentof the
National Assembly. On 30 January 1991,the newlyelected Assembly
appointeda government representingthe major parties [PreliminarvOb-iec-
m, paras. 1.7.1-1.7.5, pp. 36-37].
2.10 Accordingto AmendmentLXXIII [Annex2.5, no. 11of the Constitutionof
the SocialistRepublicof Bosniaand Herzegovina, themembersof the
Presidency are electedfor a term of fourears [Oficial Gazetteof the
SocialistRepublicof Bosniaand Herzegovina,No. 21\90, [Annex2.61
now incorporatedin Article 220[Annex2.5, no. 21of the Consolidated
Constitutionof the Republicof Bosnia and Herzegovina[hereinafter:
Consolidated Constitution],Oficial Gazetteof the Socialist Republicof
Bosniaand Herzegovina,No. 5/93, Annex2.91. The Presidencyretains its
mandate untilnew electionshave been held at the end of its term [ib.d.]
The President of the Presidencyis electedfrom amongits members,
according to Article 351Annex2.5, no. 31of the 1974 Constitutionof the
SocialistRepublicof Bosniaand Herzegovina [Annex2.71,which was then
in force. This appointmentwas initially fora period of one year, with a
possibilityof renewal [Article4 of AmendmentLI [Annex2.5, no. 4 and
Annex2.81, tothe 1974Constitutionof the Socialist Republicof Bosnia
and Herzegovina, Oficial GazetteNo. 13\89[Annex2.81, corresponding
to Article 220[Annex2.5, no. 51of the Consolidated Constitution,Annex
2.91. There is no constitutionalrequirementwhich would holdthat the individual
who achievedthe highestnumberof votes in the electionsfor membership
in the Presidencymust beappointedPresidentof the Presidency.
2.12 President Izetbegovic initiallytook up officein December 1990.In accor-
dance with AmendmentLI [Annex 2.5, no. 6][0ficial Gazette 13/89,
Annex 2.81 of the new OperatingProcedureof the Presidencyof the
Socialist Republicof Bosniaand Herzegovina,which took effect on 31
December 1991and wasadoptedwith the supportof the Serb representa-
tives, he wasre-elected the followinyear, again with the supportof the
two Serb representativeson the Presidency, for another one-year term of
office[Oficial Gazetteof the SocialistRepublicof Bosnia andHerzego-
vina, No. 37/91, Annex 2.101.
He was thus lawfullyexercisingthe functionsof his office in Spnng of
1992, when warconditionsbroke outin the Republicof Bosniaand Herze-
govina.
2.13 Article 358 [Annex2.5, no. 71of the 1974Constitutionof the Socialist
Republicof Bosniaand Herzegovina[Annex2.111, as amendedby Amend-
ment LI [Annex 2.81of 11 April 1989[NowArticle 220 [Annex 2.5, no.
91of the Consolidated Constitution,adoptedon 24February 19931reads as
follows,
"In caseof war or a stateof emergency,the mandate ofthe
Membersof the Presidencyand of the President shallbe
continued untilsuch time as the conditionsfor new elections
for the Presidencyare met" [Also reproducedin the Letter of
the Agentof the Republicof Bosnia andHerzegovinato the
International Courtof Justice,2 August 19931.
According toArticle 350 [Annex2.5, no. 10and Annex 2.111of the 1974
Constitutionof the SocialistRepublicof Bosnia andHerzegovina [now article 222 [Annex 2.5, no. 111of the ConsolidatedConstitution,Annex
2.91, the Presidencyis legally entitledto act in place of the Assemblywhen
the Assembly,due to conditionsof war, is unableto dischargeits func-
tions.
2.14 On 8 April 1992,the Presidencyofficiallyproclaimeda declaration [Annex
2.5, no. 121concerningthe imminentthreatof war [Oflcial Gazetteof the
Republicof Bosniaand Herzegovina,No. 1/92, Annex 2.121. On 20 June
1992the Presidency determined [Annex 2.5, no. 131that there existed a
state of war in accordancewith the abovementionedprovisions. These
conditions have, unfortunately,prevailedto this day.
2.15 During times of war, membershipof the Presidencyis widenedto include
the Presidentof the Parliament,the Prime Minister,and the Commanderof
the Territorial DefenseForces [AmendmentLXXIII[Annex 2.5, no. 14
and Annex 2.131to Article 350 [Annex 2.5, no. 15and Annex 2.111of
the 1974 Constitutionof the Socialist Republicof Bosniaand Herzegovina,
restated in Article 222 [Annex 2.5, no. 16and Annex 2.91 of the Consoli-
dated Constitution].This provisionwas duly compliedwith [Oflcial
Gazette of the Republicof Bosnia andHerzegovina,No. 1/92, Annex
2.121.
2.16 Accordingto Article 36 [Annex 2.5, no. 171of the OperatingProcedure of
the Presidency, the quorumfor the adoptionof decisionsof the Presidency
is four [Ofleial Gazetteof the Socialist Republicof Bosnia andHerze-
govina, No. 37/91, Annex 2.141. Hence, even when the two Serb members
of the Presidencyboycotted, orattemptedto obstructthe working of the
Presidency, decisionscould be adoptedlawfully. The Presidencyis requestedto seek to adopt decisionsby consensus.
However, if it is impossibleto achieve consensus,then ordinary decisions
can be taken by simple majority[Article45 [Annex2.5, no. 181of the
Operating Procedure of the Presidency, OJgicialGazette, No. 37/91,
Annex 2.141. Decisionsconcerningdefenseand State security, international
relations and proposais for legislativeactionby the Assembly, including
constitutionalchanges, can be adoptedby at leastfive votes from among
the seven-member Presidency[Article46 [Annex 2.5, no. 191of the
Operating Procedure of the Presidency,Oficial GazetteNo. 37/91, Annex
2.141. Hence, decisionscouldbe adopted validlyin the absenceof, or
against the votes of, two membersof the Presidency.Furthermore, after an
imminent threatof war or stateof war had been proclaimed, the Presidency
was entitled to adopt al1decisionsby simplemajorityout of the total
number of the Presidency. Thisalso appliesto decisions taken by the
Presidency in place of the Assembly,in accordancewith Article 350
[Annex 2.5, no. 20 and Annex 2.71of the 1974 Constitutionof the Social-
ist Republicof Bosniaand Herzegovina[nowarticle 222 [Annex 2.5, no.
21 and Annex 2.91of the ConsolidatedConstitution],until the Assemblyis
able to discharge its functions[Decision[Annex2.5, no. 221of the Presi-
dency concerningChangein the OperatingProcedure for thePresidency of
25 May 1992, OJgicialGazetteof the Republicof Bosniaand Herzegovina,
No. 5/92, Annex 2.151.
2.18 The Presidency participatesin the formulationand implementationof
foreign policyin conjunctionwith the Assembly[Article219 [Annex 2.5,
no. 231of the ConsolidatedConstitutionof 24 February 1993, Annex 2.91.
The decisionto bring the presentactionin the International Courtof Justice
was taken by the Presidency,in the exerciseof its powersunder Article 222 [Annex2.5, no. 25and Annex2.91of the Consolidated Constitution
and pursuant to the declarationof a stateof war of 20 June 1992.Accord-
ing to Article 20 of the Operating Procedur of the Presidencyof 23
December 1991,the Presidency is representedby its President, who,
accordingto Article 54 [Annex2.5, no.261signsal1acts of the Presidency
in itsname [Oflcial Gazetteof the Socialist Republicof Bosniaand Herze-
govina, No. 37191, Annex2.141. The Presidentwas thus duly authonzed
to instruct the then Agentfor the Republicof Bosniaand Herzegovinato
instituteproceedings. Hedid so in the nameof the Presidencywhich he
represented, as is evidencedby the factthat theLetter appointingthe initial
co-agentsfor this case and endorsing the bringingof proceedingsin this
case, was written on the officialstationaryof the Presidency[Letterdated
19March 1993 to the Registrarof the InternationalCourt of Justice,
Annex2.161.
2.19 Hence, on 20 March 1993,the timeof filingof the presentcase in the
International Courtof Justice, the Presidentand the Presidency exercised
their functions lawfully,in accordancewith the relevantconstitutional
provisions, includingthoserelating toa stateof war or emergency. As
President of the Presidency,President Izetbegovicis legally entitledto
represent the Republicof Bosnia andHerzegovinainternationallyin this
matter.
2.20 As a matter of courtesy to the Courtthe Governmentof Bosniaand Herze-
govina has provided the informationin the aboveparas. 2.9 -2.19. How-
ever, the Governmentof Bosniaand Herzegovinawishesto reiterate that in
any case it is not for the Respondent,and for that matter not evenfor theCourt itself, to enter inan examinationof the constitutionaitechnicdities
of the law ofa sovereignState. RESPONSETOTHE
THIRD
PRELIMINARY OBJECTION
3.1 The third PreliminaryObjection raisedby Yugoslavia(Serbiaand Montene-
gro) reads as follows:
"B.1. As it has flagrantlyviolatedthe principle of equal
rights and self-determinationof peoples, the Applicant
Statecould not by notificationof successionenter into
the 1948Genocide Convention" [Prelimina~ Obiec-
m, p. 951.
In this objection,the Respondentmakesthree pointsto ask the Court to
declare the complaintbeyondits jurisdiction:(1) that the Applicantstate
was constitutedin contraventionof its internallaw, (2) that the Applicant
state was constitutedcontrary to internationallaw, and (3) the entry of the
Applicant state into the 1948Genocide Conventionby notificationof
succession contravenes internationallaw. of these contentionsis false.
Underthe Constitutionof theSocialistFederalRepublicof Yugoslavia,
the Republic ofosniaandHenegovinawasentitledto optfor
independent staîehood
The very first substantive provisionof the 1Constitutioof the Socialist
Federal Republic ofYugoslavia providedthat:
"The nationsof Yugoslavia, proceedingfrom the rigof
every nation tselfdetemination,includingtherightto
secession,on the basis of their will freely expressedin the
commonstruggleof al1nationsand nationalitiesin the na-
tional Liberationrand Socialist Revolution, andin con-
formity with theiristoricaspirations, awarethat further
consolidationof their brotherhoodand unity in thcorn- mon interest, have, togetherwith the nationalitieswith which
they live, united ina federal republicof free andequal
nationsand nationalitiesand foundeda socialistfederal
communityof working people,the SocialistFederal Republic
of Yugoslavia [Constitution of the SocialistFederal Republic
of Yugoslavia, BasicPrinciples, Section 1, Annex 3.1, em-
phasis added] .
This statement reflectsthe entire structureof the Constitutionof the former
SocialistFederal Republicof Yugoslavia.Sovereigntyand the right to
exercise public powersare in principleretainedby the individualRepub-
lics. The Federal organs only exercisepowers specificallyassignedto them
[e.g. Article281 of the Constitutionof theformer SocialistFederal Repub-
lic of Yugoslavia,Annex 3.21. The Republicsalways retain the right to
self-determination,including,in express terms, "the right to secession"
[BasicPrinciples, Section1, Annex 3.11.
This understandingof the Federal structurewas also reflectedin Article 3
of the Federal Constitution,whichconfirmed thatthe Republicsare
"States based onthe sovereignty of the people" [Constitution
of the Socialist FederalRepublicof Yugoslavia, Article3,
Annex 3.3, emphasis added].
The constitutionsof the individual republics alsoemphasisedthe sovereign
personalityof the FederalRepublics.Thus, the 1974Constitutionof the
Socialist Republicof Bosnia andHerzegovinaconfirmedin Article 1 its
Statusas "a socialist democraticstate" [Annex3.4, emphasisadded].
3.3 When the Republicof Bosniaand Herzegovina actedin accordancewith the
inherent right of self determinationand began the processof translatingthe
sovereigntyof its people into formalindependence,it was entitled to do so
unilaterally, in accordancewith the freelyexpressed will ofthe representa-
tives of its people. The right to secessionwas clearly expressed inthe Federal Constitutionand norestrictionsor conditions were attachedto the
exerciseof this right [ibid.].
3.4 Article 5 of the Constitutionof the SocialistFederalRepublic of Yugoslavia
[Annex 3.51, relatingto thepossiblechangesof frontiers of the Socialist
Federal Republicof Yugoslaviais not relevantin this context.It does not
concern itselfwith secession,but insteadcontemplates thecase of territorial
adjustmentsin relationsbetweenthe former SocialistFederal Republicand
neighboring states [Annex 3.61. Neither does Article 237of the Constitu-
tion of the SocialistFederalRepublic of Yugoslaviaconstitutea bar to the
exercise of the rightto secession.It concerns exclusivelythe administration
of national defenseagainstextemal aggression, asis indicatedin the
heading of that sectionof the constitution,and in the articles which follow
[concerning,for example, capitulationto foreign forces, etc.]. Finally, it is
absurd to invoke Articles116and 124of the CriminalCode of the former
SocialistFederal Republicof Yugoslavia [PreliminaryOb-iections,para.
B.1.1.5, p. 971.These provisions explicitlyrefer to "violentor unconstitu-
tional secession"and "armedrebellion"or individuals,and are thus entirely
unrelatedto the exerciseby the Republicof its constitutionalrights.
3.5 Even if the implementationof the right to independencehad been subjected
to a requirementof agreementof Federal or other bodies within the Consti-
tutional systemof the Socialist FederalRepublicof Yugoslavia (whichit
was not), sucha requirementwould havebeen irrelevantin this case. When
the Republicof Bosnia andHerzegovinaactivatedits right to full indepen-
dence, the Organsof the former Socialist Federal Republic of Yugoslavia
were no longer functioning.As the Badinter Commissionconfirmedin
November 1991, the Socialist FederalRepublicof Yugoslaviawas already at that stage in a processof dissolution[OpinionNo. 1, 31 I.L.M. 1494
Annex 3.71. Soon after the referendumon independenceof 29 Februaryll
March 1992, the ArbitrationCommission stated thatthis process had been
concluded, the independenceof at least Slovenia andCroatia havingbeen
widely recognized[Also see BadinterCommission, OpinionNo. 8, 31
I.L.M. 1521, Annex 3.81.The Republicof Bosniaand Herzegovinahad
therefore no optionbut to achieve its independenceunilaterally,through the
applicationof its own constitutionai procedures.The Federal Republicof
Yugoslavia (Serbiaand Montenegro)adopteda similarapproachwhen it
purported to constituteitself on 27pril 1992.
3.6 Legislativepower in the Republicis exercisedby the Assembly,or parlia-
ment, which is composedof representatives electedthrough universal
suffrage. According toArticle416 [Annex2.5, no.27, Annex 3.91of the
1974 Constitutionof the SocialistRepublicof Bosnia andHerzegovina,
now Article 268 [Annex2.5, no.28 and Annex 3.101of the Consolidated
Constitution,changes to theConstitutionare adoptedby two-thirds majority
vote at a joint sessionof the Chambersof the Assembly.
3.7 This Procedure was followedon 31 July 1990,when ajoint sessionof the
Chambersof the Assembly adopted Amendment LX [Annex 2.5, no. 29
and Annex 2.61to the Constitutionof the Socialist Republicof Bosniaand
Herzegovina. Thatamendmentconfirmsthat the Republic is "a democratic
sovereignStateof equal citizens".
3.8 Contrary to the assertionsof Yugoslavia(Serbiaand Montenegro)[Prelimi-
na- Objectionspara. B.1.1.8, pp. 98-99], the sovereignrights of the
Republic, including the rightto secession,are not restricted, but, on the contrary, confirmedin Article252 [Annex2.5, no. 30 and Annex 3.111of
the 1974 Constitution of the Socialist Republicof Bosnia andHerzegovina.
That article affirms once again that sovereigntyis also vested in the Repub-
lic of Bosnia andHerzegovina.Moreover, Article252 of the Constitution
of the SocialistRepublicof Bosniaand Herzegovina mirrored Article 237
of the Constitutionof the former SocialistFederal Republicof Yugoslavia,
which clearly related to the defenseof the Federal Republic fromexternal
aggression, being part of the ChapterVI of the Constitutionon "National
Defense". It is not connectedwith the constitutionallyguaranteedright of
unincumbered secession.
3.9 Itis true that AmendmentLXIX [Annex2.5, no. 31 and Annex 3.121to
the Constitutionof the Socialist Republicof Bosnia andHerzegovinaof
1990proscribesorganizationsand actionsdesignedto achieve the "violent
overthrow" of the constitutionalsystemof the SocialistFederal Republicof
Yugoslavia [Prelimina~ Objections, para.B.1.1.9, p. 991.
This does, however, obviouslynot preclude politicalchange achievedin
accordancewith the constitution,in particular in accordance withthe
explicit rightto self-determinationand secession.In the present case
accession to independencewas decided througha democratic referendum.
3.10 The status of the Republicof Bosnia andHerzegovinaas a democratic
sovereign stateof equal citizenswas confirmedin the Platform on the
Position of Bosniaand Herzegovinaand Future Arrangementsof the
Yugoslav Community,adoptedby the Assembly on 14 October 1991. As
the Platformdid not purport to constitute a constitutionalamendment,or
even to amount to bindinglegislation,a simplemajoritywas sufficientfor
its adoption[PreliminaryObiections,Annexesp. 8161.The Platform was accompaniedby a Letter of Intent, also adoptedby the Assemblyon 14
October [Annex 3.131. That Letter confirmed theview of the Assembly
that the unilateraladoptionof a new Constitutionby the Republicof Serbia,
and the holdingof referendaby Slovenia, Croatiaand Macedoniahave
"essentiallyand irretrievablychangedthe constitutionof
Yugoslaviaand created a new legal and factual state"[Letter
of Intent, para. 11.
It is affirmed that constitutionalAmendmentLX, relating to the statusof
the Republicof Bosniaand Herzegovina asa "democratic sovereignstate of
equal citizens" would "permanentlydefine the constitutionalstatus of
Bosnia and Herzegovina"in its internaland international relations [ibid.].
As will be discussedbelow, thisLetter of Intentwas, however,not in the
nature ofa formal constitutionalamendmentor even of a binding legislative
act.
3.11 The decisionof the Presidencyof the Republicto seek the recognitionof
the European Community, itsmemberStates andother Stateswas taken
also lawfully [Reproducedin PreliminarvObjections,Annexesp. 7111.The
same considerationsrelatingto the functioningand powers of the Presiden-
cy apply as are put forwardabove, in paras. 2.9 to 2.20.
3.12 In the light of thedviceprovidedby the BadinterArbitration Commission
[Opinion No.4. 11January 1992,31 I.L.M. 1501, Annex 3.141the
Assembly, on 25 January 1992, decidedto cal1for a referendumon
independence,to be held on 29 Februaryll March 1992.This decisionwas
made in accordancewith Article 152[Annex2.5, no. 32 and Annex 3.13
of the1974 Constitutionof the SocialistRepublicof Bosnia andHerzego-
vina, and Article5, item9, of Amendment LXXI[Annex2.5, no. 33 and
Annex 2.131to the 1974 Constitutionof the Socialist Republicof Bosnia and Herzegovinaand, accordingto articles 3 and 26 of the ReferendumAct
of 1977,as amendedin 1991,and Article 115[Annex 2.5, no. 341of the
Operating Procedureof Assembly [OfficialGazetteof the SocialistRepub-
lic of Bosniaand Herzegovina,No. 8/91, Annex 3.161.
The questionput in the referendumwas:
Are you for a sovereignand independentBosniaand Herze-
govina as a state ofqua1 citizensand peoplesof Bosniaand
Herzegovina,Muslims, Serbsand Croats, and membersof
other nationswho live in Bosnia,yes or no? [Annex 2.5, no.
Dl, D2 andAnnex 3.171
The decisionto cal1for a referendum,and the previous decisionsof the
Presidencyand Assemblyrelatingto the emerging independenceof the
Republic were al1adoptedvalidly. Contraryto the submissionsof Yugosla-
via (Serbiaand Montenegro)[Prelimina~ Ob-iections,paras. B.1.1.10-
B.1.1.14, pp. 99-1021,there was no speciallegal requirementwhich would
have precluded the takingof any suchdecisionsin the absenceof support
from the majorityof Serb delegatesin the Assembly.
3.13 Articles 19-22[Annex2.5, no. 35and Annex 3.181of the Constitutional
Law of 31 July 1990on the Applicationof Amendments LIX to LXXIX of
the Constitutionof the former SocialistRepublicof Bosnia and Herzego-
vina provide for the proportionalrepresentationof the nationalitiesand
peoples of the Republicof Bosnia andHerzegovina (Muslims,Serbs and
Croats or membersof other nationalities)in the Assembly.However, the
articles do not require theagreementof the representativesofl1nationali-
ties for the adoptionof valid decisionsby the constitutionalorgans of the
Republic, such as the callingfor a referendumor the requestfor recogni-
tion [Prelimina~ Objections, para.B.1.1.11, pp. 100-1011.3.14 The Platform on the statusof Bosnia andHerzegovinaand the accompany-
ing Letter of Intentadoptedby the Assembly on 14 October 1991,was
nothing morethan a declarationof policy. It did not purport to introduce
new binding legal proceduresfor the adoptionof decisionsof the Assembly
[PreliminarvObjections,para. B.l.l.ll, pp. 100-101,and annexesp. 8161.
Its programmaticnatureis confirmedby the languageused within it, the
fact that manyof the policyproposaisare conditionedupon future develop-
ments and, indeed, the very title of the "Letterof Intent" which was
adopted concurrentlywith the Platform.
Even if the Platformor the Letter of Intenthad introducednew procedures
for decision-makingfor the Assemblyinto the constitution,then this
procedure would only have appliedto decisions arrived at after the adop-
tion of these two documents.However, neither the Platform nor the
Declarationof Intentcould have constituted constitutional amendments
which wouldhave been necessaryin order to introducea new legal require-
ment of consentof the representativesof al1peoplesor nationalitiesin the
Republicin order to facilitatethe adoptionof valid decisionsby the consti-
tutionalorgans of the Republic.Indeedthey do not evenhave the status of
ordinary legislation, asis evidencedby the failureto promulgate the
Platform and Letter of Intentas a law. Instead,these decisions were
expresslybased on Article 113 [Annex2.5, no. 36 and Annex 3.161of the
Operating Procedureof the Assembly,which provides for the issuing of
non-bindingdeclarationsby the Assembly.
3.15 Even if there existeda constitutional requirement precludingdecision-
makingby the Assemblyagainstthe oppositionof certain groupingsof
representativesin relation to matters"regardingthe most essentialissuesof
equalityof al1nationsand nationalities livingin the Republic"[Preliminary Ob-iections,Annexes p. 8161,this would nothave precluded the adoptionof
decisions concerning theindependenceof the Republicof Bosnia and
Herzegovina. The Republicof Bosniaand Herzegovinahas ensured the
unaltered continuationofequalrights of al1nationsand nationalitiesin the
Republicwith the greatest zeal throughout theprocess of gaining indepen-
dence.
3.16 It should aiso be noted that Ite3of the Platformrules out the alteration
of the boundariesof the Republic,unlessthis decisionis supportedby a
majorityof two-thirdsof the electorate[PreliminaryOb-iectionsp. 102 and
Annexes, p. 8161.This Provisionwouldconflictwith the unconstitutional
attempt of a segmentof the populationof the Republicof Bosnia and
Herzegovinato changethe boundariesof the Republic,for exampleby
purporting tosecedeviolentlyfrom the Republic.However, it is the
Governmentof the Republicof Bosnia andHerzegovinawhich has consis-
tently attemptedto maintainthe boundariesof the Republic, even in the
fact of external aggressionand armed interventionand the purported
establishmentof the so-calledSrepskaRepublic.]
3.16 Amendment LXX [Annex2.5, no. 37 and Annex3.191to the Constitution
of the former SocialistRepublicof Bosniaand Herzegovina does foresee
the creation of a Councilfor NationalEquality. However, a law on the
establishmentof sucha Councilwas never adopteddue to opposition from
membersof the SerbDemocratic Partyin the Parliament.As has been
confirmedby the Constitutional Courtof the Republicof Bosniaand
Herzegovina, the factthat the Councilnever came into existenceis of no
relevanceto the validityof the decisionsof the constitutionalorgans of the
Republicof Bosniaand Herzegovina.3.17 Even if, up to the pointof referendum, theexerciseof the right to self-
determinationhad been taintedby a failure to observe constitutionalprovi-
sions (whichwas notthe case), the referendumitself would have constitut-
ed a sufficient legalbasis on which to base a claim for the implementation
of the right to self-determination.As was indicatedabove, according to
both the Constitutionof the Socialist Federal Republicof Bosnia and
Herzegovinaand the Constitutionof the Republicof Bosnia and Herzego-
vina, sovereigntyis vestedin the peopleof the Republic.The referendum
manifestedthe sovereignwill of the peoplein a direct and legally incontest-
able way.
3.18 The referendumdid notexcludeethnic Serbs. Indeed, efforts were made to
ensure that ail individualseligibleto vote wouldbe able to do so without
undue influence or pressure being exercised. The result of 99.4 percentof
those participatingin the referendum overwhelmingly endorsed thedeci-
sion. The Constitutiondoes not require the participationof the entire
potentialelectoratein a referendum.There is also no provision which
would require a level of participationbeyondthe 63.4 percent of the
potential electoratethat was achieved.
3.19 Contrary to the submissionof Yugoslavia (Serbianand Montenegro)
[PreliminarvObiections, para.B.1.1.14, p. 1021,the result of the referen-
dum was officiallypromulgatedon 6 March 1992by the ElectionCommit-
tee of the Republic[Annex3.201.The validityof the referendumresult
was confirmedby the EC and its memberStatesand numerousother States
which recognizedthe Republicof Bosniaand Herzegovinawithin a short
period after the publicationof the result.3.20 The transformation towards full independencw e as therefore conductedin
full compliancewith intemal law.
In any case, here again, the Governmentof the Republicof Bosniaand
Herzegovinahas provided theaboveinformation to theCourt in order not
to letan argument madeby Yugoslavia(Serbiaand Montenegro)unan-
swered. It holds,nevertheless,that this argumentis entirelyirrelevant since
it is based on intemal law and it is the functionof the Court "to decide in
accordance withinternationallaw"; no rule of internationallaw demands
that a new State comesto independencein accordancewith the national law
of the predecessorStatewhich wouldbe hardlyfeasiblein most cases!
Also, in this respect the argumentsput forwardby the Respondentare very
unusual.
In breakingawayfrom the Sociulist FederaR lepublicof Yugoslaviathe
Republicof BosniuandHenegovinaviolatedno nom of international
hw: certainlynotthe rulesapplicableto self-determination
3.21 The Respondenthas soughtto suggest that inits secession from theSocial-
ist Federal Republicof Yugoslavia,Bosniaand Herzegovinaviolated the
principle ofequal rights and self-determinationof peoples. The Respondent
seeks tojustify this bold assertionby arguing thatinternationallaw does
not extend the right of self-determination to"federalunits as suc..."
[Prelimina~ Objections,para. B.1.2.3, p. 1031.The Respondentalso
argues that Bosniansare not "a 'people'entitled toself-determination"
[Zbid.para. B.1.2.4. See also para. B.1.2.17 whichasserts that the right of
self-determinationdoes not vitiatethe right of territorial integrity.]. There is no need tojoin the Respondentin a disquisitionon these conten-
tious assertionsregarding the internationallaw ofself-determination.
Whether or not Bosnia, at the timeof its secession,had a mt to self-
determinationis irrelevantbecause: (1) it is now a recognized, sovereign
state, and (2) even if, arguendo, it were supposed that ithad no mt to
self-determinationin internationallaw, international lawcertainlydid not
prohibit its achieving the statusof an independentstateat the occasionof
the disintegrationof the Former Socialist Federal Republicof Yugoslavia.
3.23 By admittingthe new stateof Bosniaand Herzegovina tomembership, the
United Nations implicitlyrecognizedthe absenceof any legal bar to its
achievingthe statusof an independentstate,just as it had earlier accepted
the re-emergenceof Syria upon the dissolutionof the former Federal
United Arab Republic[seeR. Young, "TheState of Syria: Old or New?"
56 AmericanInternationalLawJournal, 482 (1962). Annex3.211, and the
expulsionof Singaporefrom the Federationof Malaysia [SIRES1213of 20
September 1965, Annex3.221. More recentlythe United Nationshas wel-
comed former Soviet Republics[seeAlmaAta Declaration and Decision by
CISHeads of State Council,21 December1991,U.N. Doc. SI23329
(1991), Annex3.231, the Czech Republic[S.C. Res.801 (1993)and G.A.
Res. 471221 (1993), Annexes3.24 and3.251, Slovakia[S.C. Res. 800
(1993) andG.A. Res. 471222(1993), Annexes3.26 and 3.271, and Eritrea
[S.C. Res. 828 (1993)and G.A. Res. 471230((1993),Annexes3.28 and
3.273. The U.N. has also admittedother former Yugoslavfederal States
[see, e.g.,the membershipof the former YugoslavRepublicof Macedonia,
S.C. Res. 817 (1993)and G.A. Res.471225(1993), Annexes3.30 and
3.291. Obviously,internationallaw does not prohibiteither multiplesucces-
sion or secessionas meansof achieving independent statehood unless it is accomplishedthroughexternal intervention. Accordingly, the Federal
Republicof Yugoslavia's Preliminary Objections [paras B..1.2.8-B.1.2.12,
pp. 106-1091shouldbe rejectedas irrelevant asa matter of law.
3.24 Indeed, internationallaw imposes veryfew constraintson the right to
become independent.However, the prime exampleof such a constraint is
the bar to recognitionof a secessionbrought aboutby the interventionof an
external Party. Thus, the Security Councilhas refused to recognize the
secessionof the Turkish (northern) Cypriot Republic precisely to avoid
legitimating a secessionbrought aboutby external intervention [Cf.S.C.
Res. 716 of 11 October 1991, Annex3.321. This constrainthas indeed
been violatedin the former Republicof Yugoslavia,not by Bosniaand
Herzegovina.but bv the self-proclaimed Serbian Republic in Bosnia.
3.25 Accordingly, the self-proclaimed Serbian Republic in Bosnia(Republika
Srpska), establishedby the interventionof the Respondent,has beendenied
any recognitionby sovereign Statesand international organizations precise-
ly because it was establishedby externalintervention.
3.26 Itis indicativeof the vacuityof the Respondent'sPreliminaw Obiections
that, afterassertingat length the rightof the Yugoslavia(Serbiaand
Montenegro) to"territorial integrity"and seekingthereby todemonstrate
the illegalityof Bosnia andHerzegovina'sact of proclaimingindependence,
the Respondent[para. B.1.2.19, p. 112 ofPreliminaryOb-iections]has the
effrontery to claim that"the authoritiesin Sarajevohave by their acts
violated, also, the principleofqual rights and self-determinationof
peoplesagainst the Serbs livingin the territory of the former Yugoslav
republic of Bosnia-Herzegovina" [ibid.].In other words, whilethe United Nations and aimost al1sovereignstateshave recognizedthe sovereigntyof
the Republicof Bosniaand Herzegovina,the Respondent wishesthis Court
to find that recognitionof sovereigntyto beviolativeof internationallaw;
and while the U.N. and al1stateshave refused torecognize thesecession
and sovereigntyof the putative SerbRepublicin Bosnia, establishedby
genocideand aided and abettedin its inceptionby Yugoslavia(Serbiaand
Montenegro), neverthelessthe Respondent wishesthis Courtto recognize
the right of the BosnianSerbs to secessionand self-determination[See id.
para. B.1.2.33-34, 38-39.]. Itis inconceivablethat theCourt would accede
to either request in anycircumstances,but mostespeciallynot as a basis
for sustaininga bar to itsjurisdictionin this case.
me alleged violation of thelaw of State succession
3.27 The third part of the third preliminary objectiohas ben summarisedby
the Federal Republicof Yugoslavia(Serbiaand Montenegro)as follows:
" The entry of the ApplicantState intothe 1948Genocide
Conventionby notificationof successioncontravenesinterna-
tional law" [PreliminaryObjections,p. 116, B.1.3.1.
The Governmentof Bosniaand Herzegovina willshowthat thispart of the
third preliminaryobjectionis, -as the two first aspectsare, as has been
aiready demonstrated,-entirelywithoutmerit, and that as a successorState
to the former Socialist FederalRepublicof Yugoslavia,the Republicof
Bosnia andHerzegovinahas succeededas a party tothe GenocideConven-
tion.
3.28 It shouldbe noted that the former SocialistFederal Republicof Yugoslavia
has signedthe Genocide Conventionon 6 February 1979and has ratified
that conventionon 28 April 1980[Mernorial, 15 April 1994, p. 147, 4.2.1.361. It shouldbe notedalso that Bosniaand Herzegovinahas replaced
the former SocialistFederal Republicof Yugoslaviain the international
relations of itsterritory, and is therefore a successorState [Memorial, 15
April 1994, p. 142 to 146, 4.1.1.25 to 4.2.1.321. Since these points have
not beencontestedby Yugoslavia(Serbiaand Montenegro)in its Prelimi-
nary Ob-iections,it is not necessaryto addressthese issuesagain.
3.29 As a successorState, the ApplicantStatewill prove that it was legally
entitled to becomea party to the GenocideConvention, contrary to the
statementsof the RespondentState, according towhich "(t)he entry of the
ApplicantState intothe 1948Genocide Conventionby notificationof
succession contravenes international law" [PreliminaryOb-iections,p. 116,
B.1.31.
3.30 It is not contested that theViennaConventionon the Successionof States
in respect of Treaties [doc. A./CONF/.80/31, Annex 3.331has not entered
into force, and therefore can onlybe appliedinasmuchas its dispositions
state customary rules of internationallaw, or have been chosen by the
parties as the law to be applied. Article 34of this Conventionrads:
"1. When a part or parts of the territory oa State separate
to form one or more States, whetheror not the predecessor
Statecontinues to exist:
a. any treaty in force at thedate of succession ofStates
in respectof the entire temtory of the predecessor
Statecontinuesin force in respectof each successor
State so formed.
b. any treaty in force at the date of the succession of
Statesin respectonly of that part of the territory of
the predecessor Statewhich has becomea successor
Statecontinuesin respectof that successorState.
Paragraph 1 does not applyif:
a. the Statesconcernedotherwiseagree; or b. it appears from the treatyor is otherwiseestablished that the
applicationof the treatyin respect of the successorState
wouldbe incompatiblewith the objectand the purpose of the
treaty or would radically change theconditionsfor its opera-
tion.
In this article, the rule laid downby the Conventionon Successionof
States in respect of Treatieshaseen quiteclearly stated: it is the rule of
automaticsuccessionto treaties.whetherthere is a dissolutionor asepara-
-ion.
3.31 If the confusedassertionsof the RespondentStateare properly understood,
the main purpose of this partof the third preliminary objectionis to try to
deny the customary valueof the aforementionedArticle 34 of the Conven-
tion on Successionof Statesin respectof Treaties, embodying the rule of
automaticsuccession.In this endeavour - which the ApplicantState submits
is entirely withoutmerit-the Federal Republicof Yugoslavia (Serbiaand
Montenegro) refersto the discussions at theInternationalLaw Commission
at the timeof draftingof the Conventionon Successionof Statesin respect
of Treaties[PreliminarvObjections,p. 118, B.1.4.11, to a lengthy com-
ment of a citationof Oppenheim'sTreatise [PreliminarvObiections,pp.
118-120, B.1.4.21,as well as to recentState practice[Prelimina~ Objec-
tion 1s5June 1995,pp. 120-125,B.1.4.4. to B.1.4.71. Al1of these
references, accordingto Yugoslavia(Serbiaand Montenegro),tend to
support theview that the internationalule in the case of successionof
Statesis the clean slaterule. Accordingto the Republicof Bosniaand
Herzegovina, al1these aforementioned referencesare either entirelyirrele-
vant, based on wrong information,or are totallymisrepresented. Although the Republicof Bosniaand Herzegovinaobjectsto the Respon-
dents analysisof the existingrule in case of succession totreaties -which in
Bosnia andHerzegovina'sview is the rule of automaticcontinuity- it is not
necessary to enter intoa prolongeddebateon that issue.The Government
of Bosnia andHerzegovinawill showthat it was entitled, as a successor
State to the former Socialist Federal Republicof Yugoslavia toenter into
the Genocide Convention,whateverthe international rule is. This result is
reached if the applicable rule is that of automaticcontinuity,which Bosnia
and Herzegovina affirms is the existingrule of internationallaw applicable
to the presentcase. Under that rule, of course, the Republicof Bosnia and
Herzegovinawas entitled tobecomea party to the GenocideConvention.
However, even if the applicableprinciplewere theclean slate mle, which
Yugoslavia (Serbiaand Montenegro) claims is the applicablerule of
international law,the resultwouldbe the same. In other words, under that
mle Bosnia andHerzegovinawouldalso be entitled to becomea party to
the Genocide Convention.It is clear that evenunder the "cleanslate" rule
no State can prevent a successor Statewishingto do so from becominga
party to a multilateral treatysuchas the Genocide Convention towhich its
predecessor State was a party.
3.33 The Republicof Bosnia andHerzegovina couldproperly base its response
upon anexaminationof the two alternativehypotheses.However, it will go
one step further and demonstratethat, in its opinion, automatic continuity
clearly is, in any case, the prevailingrule in internationallaw applying to
successionto multilateral conventionson humanrights, like the Genocide
Convention. Bosnia andHenegovinahas becomeaparty to the Genocide Convention,
by applicationof the ruleof automaticsuccessionto muhilateml
conventions onhumanrights
3.34 Bosniaand Herzegovina submitsthat it succeededautomaticallyto the
Socialist FederalRepublicof Yugoslaviaas a party to the GenocideCon-
vention, by applicationof the internationalrule of automatic succession to
multilateralconventionson humanrights. To that effect, the Republicof
Bosnia andHerzegovinawill demonstrate that:
the customary rule of automatic continuityapplies to a multilateral
(i)
convention such as the Genocide Convention.
there are no specific circumstances to justify the settingide of the
(ii)
rule of automatic continuityin the present case.
(iii) the rule of automatic succession,even if noncustomary - quodnon
-applies in the presentcase, by agreement.
the customa rule of automatic continuitvap~liesto a multilateralconven-
tion like the Genocide Convention.
3.35 The Applicant-State submitsthat multilateral conventionson human rights
are automaticallysucceededto, unlessthere is a clear statementto the
contrary. Even if it were not accepted that successionips oure to treaties
in general is a customaryrule of internationallaw, this principle clearly
applies to multilateral conventions concerninghumanrights and humanitari-
an matters. Thishas alreadybeen mentioned inthe Memorial, where it was
stated:
"Automatic continuityis particularlywell establishedin
respect of conventionsof humanitariancharacter" [Mernorial,
p. 1501. This is supportedby extensivelegalauthorityand can be clearly demon-
strated by the practiceof States andinternationalorganisationsas well as
by the historyof the draftingof the Conventionson Successionof States.
3.36 For multilateral treatiesof the typeof the Genocide Conventionthe impor-
tance for the interestsof the internationalcommunityas a whole of continu-
ity in their respect, in case of successionof States, need not be underlined.
The fact that the rule of automatic continuityis even more important for
universai treatiesthan for treatiesin general, has ben frequentlyunder-
lined in legal writings.
3.37 Even an advocateof the "cleanslate" rule suchas Professor Ian BROWN-
LIE, admits that thisrule cannot applyto certain types of universal treaties,
when he writes:
"To the general rule of non-transmissibility(the "clean slate"
doctrine)certain important exceptionsare often statedto
exist.These may now be considered.
(1) Treatiesevidencingrulesofgeneral
international law...
(II) "Objectiveregimes " andlocalised
treatiesingeneral.. .
(III) Boundarytreaties.. .
(IV) Certainother categories.
The majorityof writers are of the view that no other excep-
tions exist. However, a numberof authorities consider that in
the case of generalmultilateralor "law-making"treaties
there issucha transmission"[Principlesofpublic interna-
tionallaw, Oxford, ClarendonPress, 1990,4th edition,
Annex3.34, p. 670, emphasisadded; see also Charles DE
VISSCHER, TheoryandRealityin PublicInternationaL l aw,
P.E. CORBETTtrans. rev. ed. 1968, Annex3.35, p. 179;
Mohammed BEDJAOUI,Problèmes récents de succession
d'Etats dans les Etatsnouveaux,Recueildes cours,1970-11-
130, Annex3.36, p. 526, emphasis added]. The GenocideConventionispar excellenceone of these conventions.
3.38 Moreover, there is extensiveauthoritywhichevidences respectof the
automaticcontinuity mle for multilateral conventionson human rights. In
his well-known monographyA , ccessionà 1'indépendance et succession
d'Etats aux traitésinternationaux,Professor M. MARCOFFencompassed
the existenceof this principleof automatic continuity forl1humanitarian
conventions. As an example, he referred to the automatic continuityof the
1949Red Cross Conventions[Fribourg, 1969,Annex3.37, p. 303 et
seq.]. To the sameeffect, ProfessorDetlev VAGT, referring to codification
treaties, describedas ranging"from theViennaConventionson Diplomatic
and Consular Relations,to the Genocide Conventionand the International
Covenanton Civil and Political Rights",wrote: "(t)hereis little persuasive
force to a state'sclaim that it is entitledto free itself from ancobliga-
tion because of a state succession problem"[State Succession:The Codi-
fier's View, VirginiaJournal of InternationalLaw, 1993, Annex3.38, p.
290; see also for Yugoslavia(Serbiaand Montenegro)'~position, OBRAD-
OVIC , Metunarodni Problemi,(InternationalAflairs) , no. 1-2,July 1992,
Annex3.391.
3.39 Furthermore, Statepractice confirmsabundantly thatthe internationalmle
applicableto multilateral treatiesof a universalcharacter, like theGenocide
Convention, is the rule of automaticsuccession.
3.40 Indeed, at the beginningof the century, examplescan be foundwhich show
,the specificityof humanrights treaties.As statedin the commentaryof the
InternationalLaw Commissionrelatingto multilateral treaties: "the Irish Free Stateseemsin general to have established
itself as a party byansof accession,not succession,
althoughit is true that the IrishStateears to haveac-
knowledgedits statusas a party to the 1906Red Cross
Conventionon the basis of the United Kingdom'sratification
of the Conventionof 16April 1907" [UN Conferenceon
Successionof Statesin respectof Treaties,AICONF.80113,
Vol. III,Annex3.40, p. 92, $161.
It is quite clear from thisexample, that, even when not generally followed
by a given State, theule of automaticsuccessionapplies to multilateral
human rights conventions.
3.41 The practice of Statesat the timeof decolonisation has followed theme
pattern. At the timeof the draftingof the Conventionon Succession of
Statesin respect of Treaties, which statedthe "cleanslate"le for newly
independentStates, severalrepresentativespointedout, that in al1instances
these newly independent Stateshad used their right to succeedto universai
treaties. Forxample, the Netherlands'delegatedeclared that: "(h)is
delegationknew of nocase in whicha newly independentstate had subse-
quently ceased to be a party to a multilateral treatyopen to universal
participation"[UN Conferenceon Successionof States in respect of Trea-
ties, AlCONF.80116,vol 1, 24th meeting,22 April 1977, Annex3.41, p.
162, 56; see also declarationof the Swedishdelegate, id., 23rd meeting, 25
April 1977, Annex3.42, p. 177, $21.Equally, Mrs Bokor-Szego(Hunga-
ry) declared fullsubscription to the"cleanslate" rule, but added t"an
analysisof State practicerevealeda customaw rule to the effect that
treaties of universalcharactercontinuedin force"UN Conferenceon
Successionof States in respectof Treaties,lCONF.80116,vol 1, 24th
meeting, 22 April 1977, Annex3.43, p. 167, $25, emphasis added].In the
case of Algeria, althoughit preferredin general touse accession tomulti- lateral treaties to whichFrance was a party, neverthelessit succeededto
treaties of a humanitariancharacteror of generalinterest [MARCOFF,
Accessionà l'indépendanceet successiond' Etats au traités internatio-
naux, Fribourg, 1969, Annex3.44 p. 1631.Also, Switzerlandshowedits
attitude in favour of automaticsuccessionto multilateral,and especially
humanitarian, treatiesthroughits practiceas a depositoryof the Geneva
Conventions. Itconsidered al1new Statesas bound by these conventionson
their accessionto internationallife, unless they madea declarationto the
contrary [COURTIER,Accession does nouveauxEtats Africainsaux
Conventions de Geneve,AFDI, 1961, Annex3.45, p. 760-7611.
3.42 Taking this generalStatepractice into account, the Soviet delegation
proposed an amendmentto the "cleanslate" rule -embodiedas far as
newly independent Stateswere concernedin the Conventionon the Succes-
sion of Statesin respect of Treaties for treatiesof a universal character
described as follows:
"Treatiesof a universalcharacter were the out-comeof
international CO-operatioannd embodiedgenerallyaccepted
principlesand rules concerningcontemporaryinternational
relations. Thepurpose of these treatieswas to strengthen the
legal order in international relationsin importantspheres; for
example, the maintenanceof international peaceand security;
the developmentof economicCO-operationt;he struggle
against genocide..." [UNConferenceon Successionof States
in respect of Treaties,/CONF.80/16, vol. 1, 24th meeting,
22 April 1977,Annex3.46, p. 163,52, emphasisadded].
The GenocideConventionwas clearly referred to in this description. In
fact,it appears from the debatesthat al1the delegatesagreed on the idea of
automatic successionto universaltreatieslike the GenocideConvention.
The reason why this amendmentwas notadoptedwas merely the impossi-
bility of reaching agreementon what treaties wereof a universal character. (Somedelegates, for example, raised the questionwhether or not the
Nuclear Non-Proliferation Treatywas really such a treaty).
3.43 However, there can be no dispute about the universalcharacter of the
Genocide Convention. Thiswas underlinedby the International Court of
Justice, when it declaredthat
"the specialcharacteristicof the Genocide Convention (...)is
the universal characterboth of the condemnationof genocide
and the cooperationrequired "in order to liberate mankind
from such a scourge" [Preambleof the Convention].The
GenocideConventionwas thereforeintendedby the General
Assemblyto be definitely universal in scope" [I.C.J. Re-
ports, 1951,Annex3.47, p. 231.
3.44 The practice to-day concerningmultilateral conventionson human rights is
also in complete agreementwith the rule of automatic succession.Switzer-
land which is a depositoryof many ofthese important universal conven-
tions on humanrights and humanitarianquestions,when it acts in that
capacity, considersthat automaticsuccession is possible througha unilater-
al notificationof succession,which sufficesto makethe new Stateparty to
the treaty. This meansthat no consultationof the other parties is necessary,
no objectionof anotherparty is possible. This practice results from the
interests of the internationalcommunityas a whole, which requires that
such universaltreaties, especiallythe treatiesof protectionof human rights,
are applied as widelyas possible [CAHDI(93)14,Annex3.481. This means,
in particular, that it wouldconsideran objectionlike the one raised by the
RespondentStateagainstthe notificationof successionof Bosnia and
Herzegovina, as devoidof any legal effect whatsoever.3.45 In the discussionsof the CAHDI -Committeeof Legal Adviserson Public
InternationalLaw ofthe Councilof Europe - successionof Statesis one of
the current issues on the agenda.The representativesof the different
participant States havepresentedthe respective positionsof their States
conceming the prevailing rules in case of State succession.In the recent
meetings, and as recentlyas in March 1995, thePresidentof the Commit-
tee summarised the discussionsbetweenthe experts, whichcan be analysed
as the opini joris of the membersof the Councilof Europe, in saying that
there should be at leasta presumptionof automatic continuitvfor multilat-
eral treaties, especiallywhen they are related to human rights rCAHDI(95)-
5, Annex 3.491.
3.46 That practice isespecially apparentand well rooted inthe differentintema-
tional organisationsand bodiesdealingwith humanrights. The Secretary-
General of the United Nationsin a recent document[Doc. ElCN.411995-
180, 28 November 1994,Annex 3.501 restated the positiontaken by the
chairpersonsof the humanrights treaty bodies,in their fifth meeting,held
from 19 to 23 September 1994:
"They encouraged al1the successor States tomake formal
notificationsof their successionto the humanrights treaties.
But, at thesame time, they emphasizedthat such a notifica-
tion was nota legal pre-requisitein order to be bound by
these treaties:
"The chairpersonsemphasized, however, thatthey were of
the view that successor States were automaticallbound by
obligations under internationalhumanrights instruments
from the respectivedate of independenceand that observance
of the obligationsshould not dependon a declarationof
confirmationmadeby the govemmentof the successor
State." [p.4, emphasisadded].3.47 One of thehumanrights bodiesreferred to by the Secretary-General,the
Commissionon HumanRights, adoptedseveralresolutions, in which it
emphasized"the special natureof the humanrights treaties aimed at the
protectionand promotionof humanrights and fundamentalfreedoms". The
most recent one, adoptedon 24 February 1995[E/CN.4/1995/18, Annex
3.511can be cited here:
"Emphasizingonce again the specialimportanceof the obser-
vance of universal normsand standardson human rights for
the maintenanceof stabilityand the rule of law inany
State...
Welcoming theprogress madein the confirmationby some
successor Statesof their obligationsunder international
human rights treaties;
Reiteratesits cal1to successorStateswhich have not yetdone
so to confirm[emphasis added]to appropriate depositories
that they continue[emphasis added]to be bound by obliga-
tions under internationalhumanrights treaties."
The language used, especially thewords "confirmation"and "to confirm"
shows abundantlythat the Statesare de legelata under a duty to succeed
automaticallyto the predecessor Statefor the humanrights treaties.
3.48 Another of the humanrightsbodiesreferred toby the Secretary-General,
the Human Rights Committee,has shownthe same approach. It also places
emphasison the existenceof the rule of automatic successionfor the
multilateralconventionson humanrights. Shockedby the horrific events
takingplace in Bosnia andHerzegovina, theHuman RightsCommittee
asked, on 7 October 1992,the Governmentsof Bosnia andHerzegovina, of
Croatia and of Yugoslavia(Serbiaand Montenegro) tosend a report
concerning the persons that werenow respectivelyunder their jurisdiction.
Moreover, it insistedupon the necessityof an automatic succession tothe Covenanton Civil and PoliticalRights, which,like the GenocideConven-
tion, is a multilateral conventiononumanrights:
"Le Comitéa estimé quetous les peuplesde l'ancienne
Yougoslavie avaientdroit aux garantiesprévuespar le Pacte
et il a donc agi en vertuoesdispositionsde l'article 40du
Pacte" [CCPR/C/SR.1200,9 Novernber1992,p. 2, $ 1,
Annex3.521.
3.49 In conformitywith that request, the Governmentof Bosnia-Herzegovina
presented a report to the Committee at themeetingof the 46th session, on
9 November 1992.M. Filipovic, representativeof Bosnia andHerzegovina,
presented the situationin theterritoriescontrolledby his Government,as
well as the situationin the parts controlledby the Serbianaggressor, where
the situationwas describedin the followingterms:
"L'un does crimes lesplus tembles de l'histoiremoderne est
en train de se commettre surle territoire de laosnie-Herze-
govine [...] Does événements inimaginable ont lieu dans ce
pays: arrestations etexécutions massivesd,éportationsde
centainesde milliersde personnes, internement dans does
campsde concentrationet does centresde détention"[CCPR-
/CISR.1200,9 November 1992,Annex3.52 p. 2, $41.
3.50 After thepresentationof his report the Presidentof the Human Rights
Committee, ProfessorRosalynHiggins,drew attention tothe fact that the
rnerepresence of the Bosniandelegationwas a proof in itself, independent-
ly of any formal notificationof succession,that Bosniaand Herzegovina
was automaticallybound by the Covenantfrom thedate of its independence
[CCPR/C/SR.1200,9 November 1992,Annex3.52, p. 5, $141.In fact, it
is only subsequently,on 1September1993,that Bosniaand Herzegovina
formallyconfirmed the self-evidentfact that it was bound by the Covenant
from the date of its independence,namelyon 6 March 1992 [SeeGeneral Assembly, OfficialDocuments,49th session, Supp.No 40 (A/49/40),
volume 1,Report ofthe HumanRights Committee,p. 11-12, $48, Annex
3.531.The Committeeadopted thatsamepositionas to the automatic
succession to theCovenanton Civil and PoliticalRights fromthe date of
independencefor al1the successor Statesborn from theformer Yugoslavia
or the formerCzechoslovakia.
(11) there are no specificcircumstances toIustify the settingaside of the rule of
automaticsuccessionof Bosnia andHerzegovina to theGenocideConven-
u
3.51 The RespondentStateinvokestwo differentreasonswhy the rule of auto-
matic succession,even if admittedto exist, shouldhowever not apply to the
present case: thefirst reason isid to be the wordingof the note on
successionof 29 December 1992;the second reason is said to be the fact
that Bosnia andHerzegovina came intoexistencein violationof internation-
al law.None of these two reasonshas the slightestmerit and theymust
both be summarilydismissed.
3.52 The Governmentof Bosnia andHerzegovina submits that the notification of
successionof December 1992is in accordancewith the rule of automatic
succession.The notificationof successionof the ApplicantStatereads as
follows:
"The Governmentof the Republicof Bosnia andHerzego-
vina, havingconsidered the Conventionon the Prevention
and Punishmentof the Crimeof Genocideof 9 December
1948,to which the former SocialistFederal Republicof
Yugoslaviawas a Party, wishesto succeedto the same and
undertakescarefully to performand carry out al1the stipula-
tionsthereincontainedwith effect from6 March 1992, the date on which the Republicof Bosniaand Herzegovina
became independent. "
The RespondentState tries to interpret the notificationof successionmade
by Bosniaand Herzegovinato the effect that it sets aside the principle of
automaticcontinuityof treaties, whichcontinuityis what it precisely
intended to enforce. This is a very provocativeand unwarrantedway of
reasoning and showseither a completelack of understandingof the basic
conceptsof internationallaw, or bad faith in the interpretativeprocess.
3.53 It is uncontested thatautomaticsuccession does not meanabsolute succes-
&: it does not necessarilymean successionto al1and every treaty entered
into by the predecessorState, but it implies:
-
that as a general rule, there is an automaticsuccessionto treaties,
which meansa successionthat takes place ipsjoure, withoutany
necessityof action from the new State,
- that as an exceptionto this general rule, there is no automatic
successionin certain specifiedcases.
3.54 There are four situations,accordingto Article34 ofthe Conventionon
Successionof Statesin respectof Treaties, in which the generalrule of
automaticcontinuity does not apply.
3.55 The first exceptionto the rule of automatic continuityoccurs if the State
concerned explicitlyStatesthat it should notapply.
The present case is no such exception,as Bosniaand Herzegovinaintends
the continuityprincipleto apply, and rejects absolutely the assertion that
the rule of automaticsuccession be setaside, as far as the Genocide
Conventionis concerned, as well as for al1other multilateraltreaties.3.56 The second exceptionto the rule of automatic continuityapplies where the
initial treaty waslimitedto a part of the temtory only, in which case the
principle of continuityhas naturallyto be set aside for al1the other parts of
the territory.
There is no pretensionto theeffect that the GenocideConventionwas not
applicablein the whole temtory of what was formerly theSocialist Federal
Republicof Yugoslavia,so this exceptioncould not possiblyapply in this
case.
3.57 The third exceptionto the rule of automatic continuityis when the continu-
ity of the treaty wouldbe incompatiblewith the objectand the purpose of
the treaty.
This is not the situationwith the GenocideConvention. It is quite evident,
on the contrary, that it is the non-continuityof the treatywhich wouldbe
incompatiblewith the objectand the purpose of the treaty. This facthas
been indirectly, but quite clearly, recognisedby Yugoslavia(Serbiaand
Montenegro)itself, whenit purportedto object to the notificationof
successionof the Republicof Bosniaand Herzegovinain the following
terms:
"the Governmentof the FederalRepublicof Yugoslavia
herewith Statesthat it does not consider the so-calledRepub-
lic of Bosniaand Herzegovinaa party to the Convention,but
does consider that the so-calledRepublicof Bosnia and
Herzegovinais boundby the obligationto respect the norms
on preventingand punishing thecrime of genocidein accor-
dance with general internationallaw, irrespectiveof the
Conventionfor the Preventionand Punishmentof the Crime
of Genocide" [MultilateralTreatiesdeposited withtheSecre-
tary-General,Statusas at 31 December1994,p. 89, note 3,
Annex 3.541. It is self-evidentthat the maintenancein force of the Genocide Convention
could in no possibleway be analysedas contravening the object and the
purpose of that convention.
3.58 The fourth exceptionto the rule of automatic continuityapplies where
applicationof the treatyby the successorState would radically change the
conditions for itsoperation.
The same line of reasoning as presentedaboveappliesequallyhere. It is
therefore impossibleto avoid the applicationof the rule of automatic
continuityto the Genocide Conventionon the basisof changed circumstanc-
es.
3.59 As none of the statedexceptionsapply, the general rule of automatic
continuityof multilaterai conventionson humanrights is applicablein this
case. Other exceptions is do not exist in international law.The inescapable
result is that the ApplicantStatehas automaticallysucceededto the Geno-
cide Convention.
3.60 In order to avoid this inescapable consequence, theRespondentState
resorts to a last hope strategy:it attemptsto usethe notificationof succes-
sion to prove that there has been no automatic succession.This "boot-
straps" reasoningcannotbe accepted. Ithas beenunderlinedaiready that
automatic succession meansthat the successionoccurs ipsofacto, without
any need for an officiaiact of the successorState. As underlinedpreviously
in the Mernorial[p. 152, 4.2.1.451, the notificationof successionwas not
required, and therefore itsanaiysisis of secondaryimportance:it was but
confirmatoryof the situation that existedin internationallaw, on the day
that Bosniaand Herzegovinabecame independent.It is true that considering the need for securityin internationalrelations, it has become more and
more often thepractice of Statesto makea forma1notificationof succes-
sion, if only to acknowledgethat none of the exceptions permitting the
settingaside of the rule of continuityapplies. Of course, such a notification
of successionas has been madeby the Republicof Bosnia and Herzego-
vina, whosepurpose is to reinforcethe continuity,by makingexpressly
known urbi et orbi that the successor Stateis bound bythe treaties obliga-
tions of its predecessor,an in no waybe analysedas opposing theprinci-
ple of continuity, aresult thatwould follow from theRespondent'sthesis.
The note of December 1992properly understood andinterpretedwas an
acknowledgementof the fact thatBosnia andHerzegovinahas succeeded
the Socialist FederalRepublicof Yugoslaviaas a party to the Genocide
Convention, ashas alreadybeen notedin the Memorial[see p. 146,
4.2.1.341.
3.61 Moreover, the Republicof Bosnia andHerzegovinareiterates that it was
created in accordancewith general principlesof internationallaw, and that
the general rules governinga successionof Stateare applicableto it. The
non-illegalcharacterof the creationof Bosnia andHerzegovinahas been
thoroughly discussedabove, and it is not necessary torestate what is self-
evident: this countrywas createdin a process of dissolutionof a State, and
has been internationallyrecognised andadmittedto the United Nations.
This proves, beyonddoubt, that the events thatgave birth to the Applicant
State, have been conductedin conformitywith internationallaw, and in
particular with the principlesof internationallaw as embodiedin the
Charter of the United Nations, as requiredby Article 6 of the Vienna
Conventionon the Successionof Statesin respectof Treaties. The inescap-
able result is that the customaryrule of automatic successionapplies to the multilateral treatiesto which the former Socialist Federal Republicof
Yugoslaviawas a Party.
3.62 Consequently,the ApplicantStaterespectfullyinvites the Court to apply the
well-establishedand fundamentalrule of automatic successionto the present
case which provides that Bosniaand Herzegovinasucceededautomatically
to the GenocideConvention,withoutbeing possiblypreventedto do so by
any obstructionfrom the RespondentState.
(iii) the rule of automaticcontinuitv.even if not customar-guod non -,
a~pliesbv agreement
3.63 As has been acknowledgedin Opinion n' 1 and Opinionna 9 of the
Badinter Commission,the various States, created through the dissolutofn
former Socialist FederalRepublicof Yugoslavia, haveexplicitlyagreed to
apply therule of automaticcontinuity.An extract of the last cited opinion
can be made here:
"the successionof Statesis governedby the principlesof
internationallaw embodiedin the ViennaConventionof 28
August 1978and 8 April 1983,which al1Republicshave
agreed should be thefoundationfor discussion between
them" [Paris,4 July 1992,31 I.L.M. 19,92, vol. XXXI,p.
1524,Annex3.551.
Even ifthe "cleanslate"rulewereapplicable,theApplicantStatewas
entitledto enterthe 1948 GenocUleConventionby notificaiionof
succession
3.64 As formerly mentioned, theRespondentinsistson the applicationof the
"clean slate" principle tothisecificcase. This was not the traditional position of the former Yugoslavia,as its representativeat the conferenceof
codificationof the Conventionon the Successionof Statesin respect of
Treaties adopteda positionin favor of the rule of automaticcontinuity. In
particular, Article 34 (whichwas then Article 33) received the agreement
of Yugoslavia:"Mr. Sahovic(Yugoslavia) said that hisdelegation found
Article 33 acceptable [...]The InternationalLaw Commissionhad been
right to provide, in paragraph3, for the exceptionai applicationof the
"clean slate" rule" [UNConferenceon Successionof States in respect of
Treaties, AICONF.80116,vol.11,48th meeting, 8 August 1978, Amex
3.56, p. 105, $15, emphasis added].
3.65 Even arguendo admittingthe Respondent'snewly adoptedposition in
favour of the "clean slate" rule, the ApplicantStatewould according to the
ovenvhelming interpretationof the "cleanslate" principle, be entitled to
enter the GenocideConventionby way of a notificationof succession.
3.66 However, before demonstratingthis and whilst maintainingthat these
questionsare not of pivotal significance, theGovernmentof Bosnia and
Herzegovina feelscompelled to pointat al1the inaccuracies,mistakesand
erroneousassertions madeby Yugoslavia(Serbiaand Montenegro), in its
failed endeavourto prove the generai existenceof the "cleanslate" rule as
the principleto be appliedin al1casesof successionof States.
3.67 Firstly, the general interpretationgiven to therecent practice supposedlyin
favor of the "clean slate"rule seemsa very isolatedinterpretation.In
general, legal authoritieshave adopted the sameanalysisas Professor Oscar
SCHACHTER, who,whenreviewingthe recent practice, summarisedit
quite differentlyfrom theRespondentState. He considered that"the experiencethus far with respect to the cases of the former SovietUnion
and the former Yugoslavia, supportsa generalpresumptionof continuity"
[State Succession: TheOnceand the Future Law, VirginiaJournal of
International Law, 1993, Annex3.57, p. 2571.
3.68 Secondly, althoughthe facts referredto by the Respondentare irrelevant,
the ApplicantState feels compelledto point atal1the multipleinaccuracies
and copioususe of outdatedinformation,that can be foundin the Prelimi-
nary Obiections,which evidence alack of respect for the proceedingsthat
take place before the World Court.
3.69 For example, contrary towhat is statedby the Respondent,both the States
establishedin the temtory of the formerCzechoslovakiaas well as in the
former SocialistFederal Republicof Yugoslaviaentered into the multilater-
al treaties of the predecessor Stateby meansof succession.It is totally
untrue to assert that theCzech Republicand the Republicof Slovakia
entered into the treatiesof the predecessorStateby meansof accession.
This may well explainwhy there is not a singleexamplegiven by the
Respondentin supportof its gratuitous assertionthat the Czech Republic
and the Republicof Slovakiahave entered multilateraltreaties not deposited
with the Secretary-Generalmainlyby accession [Prelimina~ Objections,p.
121, B.1.4.5.1. On the contrary, in the Proclamationof the Czech National
Council to al1Parliamentsand Nationsof the World, theprinciple of
successionto al1treaties is clearly marked:
"The Czech Republicas of January 1, 1993in accordance
with the principlesof internationallaw and withinits frame-
work recognises the provisionsand obligationsof al1multi-
lateral and bilateral treaties and agreementsto whichthe
CSFR was a party as of that date" [Letterdated 31Decem-
ber 1992 from thePermanent Representative ofCzechoslova- kia to the U.N., UN Doc. A/47/848. 31Dec. 1992, Annex
3.581.
The same is true of the Proclamationof the NationalCouncil of the Slovak
Republicto the Parliamentsand Peoplesof the World:
"The Slovak Republic assumes al1the obligationsvested with
the CSFR until December31, 1992" [Annex3.591.
The same is also true as far as theSocialist Federal Republicof Yugoslavia
is concemed. It wouldbe totallywrong to assert that the new States which
were createdin the territory of the former SocialistFederal Republicof
Yugoslaviaentered into the treatiesof the predecessorState, byeansof
accession. Again, this may explainwhy there is not a singleexamplegiven
by the Respondentof the new States createdin the territory of the former
Socialist FederalRepublicof Yugoslavia enteringinto multilateraltreaties
depositedwith the Secretary-Generalby meansof accession.
It would be tediousand unnecessaryto enumerateal1the conventions,
agreementsand treaties to which (forexample)Bosnia andHerzegovina,
Slovakia, Croatia, the Former Republicof Macedoniahave enteredby
meansof a notificationof succession[MultilateralTreaties deposited with
the Secretary-General,Statusas at 31 December1994[Annex3.601;see
also for the Conventionson humanrights exclusively,Etat does pactes
internationauxrelatifs aux droits de l'homme,Successiond'Etatsen
matièrede traitésinternationaux relatifsauxdroitsde l'homme,28 novem-
ber 1994,E/CN.4/1995/80, Annex3.611.
3.72 Also, it must be pointed out thatthe assertion that the "1948 Convention
the Preventionand Punishmentof the Crimeof Genocidehas not been
entered into by the FormerRepublicof Macedonia" [PreliminaryObiec- m, p. 122,B.1.4.6.1, is plainlynot true, as thisState made a notifica-
tion of successionon 18January 1994,that is before the filing of the
Preliminarv Obiections.
3.73 Moreover, besidesbeing irrelevant, the longlist of treaties (whichare
mainlyof a commercialcharacter)givenby the Respondent,for which
Bosniaand Herzegovinahas supposedlynot madea notificationof succes-
sion, is completelywrong and outdated,as the Republicof Bosnia and
Herzegovinahas in fact senta notificationof successionfor almost al1the
treaties cited by the Respondent.Forexample, the Republicof Bosniaand
Herzegovinahas senta notificationof successionfor:
- the OptionalProtocol to the ViennaConventionon Diplomatic
Relations concerning theAcquisitionof Nationality,on 12January
1994,
- the Customs Conventionon Containers,on 12January 1994,
- the Customs Conventionon the TemporaryImportationof Road
Vehicles, on 12 January 1994,
- the European Conventionon the CustomsTreatmentof Pallets used
in InternationalTransport, on 12January 1994,
-
the Conventionon RoadSignsand Signals,on 12January 1994,
-
the European Convention concerning the Crewof VehiclesEngaged
in InternationalRoad Transport (AERT), on 12January 1994,
- the Agreementof International Carriageof Perishable Foodstuffs
and on SpecialEquipmentto be used for such Carriage (ATP), on
12January 1994,
- the Agreementfor Facilitatingthe International Circulationof Visual
and AuditoryMaterial on Educational,Scientificand Cultural
Character, on 12January 1994, - and so on.. .[Multilateral~reati2sdepositedwiththe Secretary-
General, Statusas at 31 December 1994, Annex3.621.
Al1of this informationwas plainlyavailablewhen the Respondentprepared
the Prelimina~ Ob-iections and, surprisinglyenough, it apparentlywas not
aware of this.
3.74 Even more importantly,the Respondentseemsto have completelymisun-
derstood thetrue meaningof the "clean slate"rule embodiedin Article 17
of the Conventionon Successionof Statesin respect of Treaties. Article 17
reads:
"Subjectto paragraph2 and 3, a newly independentState
may, by notificationof succession, establishits status as a
party to anymultilateral treatywhich at the date of the
successionof Stateswas in force in respectof the territory to
which the successionof States relates [Annex3.331."
3.75 The true meaningof the tabula rasa principleresults clearly from the
commentaryof the InternationalLaw CommissionconcerningArticle 17
(formerly Article 16):
"modem depositoryand Statepractice ...does appear to
support theconclusion thata newlyindependentState has a
right of option to be a party to certain categoriesofltilat-
eral treaties in virtue of its characterassuccessorState. A
distinction must, however, bedrawn in this connection
betweenmultilateral treatiesin general and multilateral
treaties of a restrictedcharacter, for itis only in regard to
the former that a newlyindependentState appearsto have an
actual right of optionto establishitself as a party indepen-
dentlyof the consentof the other Statesparties and quite
apartfrom theflnal clauses of the treaty" [Draft articles,
Doc A/CONF.80/4, vol. III, Annex3.63, p. 44, $2, Inter-
nationalLaw Commission'semphasis]. This means that the other partiescannotobject to the new State'sparticipa-
tion to the treaties of its predecessor. As clearly statedby Mr. Museux, the
French representative,"(i)t should benoted that the "cleanslate" rule was
not an absoluterule: it conferreda right to succeed[UN Conferenceon
Successionof States in respectof Treaties, A/CONF.80/16, vol II, 40th
meeting, 2nd August 1978,p. 55, Annex3.64, $46, emphasisadded]. This
is also the interpretationof the Commission,which refers in itsommen-
taryto the draft articlesto the "cleanslate" principle,in the sense that
when a State has a clean slatethis meansthat "it is under no obligation to
accept the continuancein force of its predecessor'streatie[UN Confer
ence on Successionof States in respectof Treaties, AlCONf.8014,vol. III,
Annex3.65, p. 92, I.L.C.'s emphasis; seealso Oppenheim'sTreatise,
International Law, 9' ed., vol. 1, Sir Robert JENNINGSand Arthur
WATTS, 1992, Annex3.66, pp. 222-2231.
3.76 The result ofthese statementsis that the"clean slate" rule means that a
State would have no obligationto succeed, whileit would have a right to
do so. Itis also clear that the Genocide Conventionis not a multilateral
treaty of a restricted character, forwhich this right to succeedwould not
exist, but is a treaty of a universalcharacterpar excellence,for which a
right of option would exist were the "clean slate"le applicable, which it
is not.
3.77 Consequently,even if Bosnia-Herzegovinahad noobligationto succeed -
quod non - it had at least a right to succeed,and no other State, including
Yugoslavia (Serbiaand Montenegro),couldprevent it from beinga party to
the Genocide Convention.Bosniaand Herzegovinaaccordingly invites the
Court to reject the assertionof the RespondentStateto the effect that thenotificatioof successioncontravened internationlaal , and tht osnia
andHerzegovina is nota successorto theGenocideConvention. RESPONSETO THE
FOURTH
PRELIMINARYOBJECTION
4.1 As Bosnia andHerzegovinahas demonstratedin the introductionof this
Written Statement,Yugoslavia(Serbiaand Montenegro)'~Preliminary
objectionsare groundedon unsubstantiatedand chaotic allegationsof law.
The Court may well take the view thatin its presentationof its fourth
preliminary objection,Yugoslavia(Serbiaand Montenegro)breaks its own
record of confusionand abstruseness.
4.2 This so-called"Fourth preliminary objection"is submittedas follows:
"As it was recognizedin contraventionof theules of inter-
nationallaw and as there are four Statesin existenceon the
territory of the former Yugoslavrepublicof Bosnia-Herze-
govina, the so-calledRepublicof Bosnia-Herzegovinais not
a Party to the 1948 Genocide Convention"[Preliminary
Objections, B.2, p. 1271.
These allegationsare followedby one pageand a half ofgloss in which
Yugoslavia (Serbiaand Montenegro) offers no legal ground for its submis-
sion.
4.3 If one tries to give somemeaningto these obscure allegations,it mightbe
assumed thatYugoslavia(Serbiaand Montenegro)here makesthree diffe-
rent assertions:
i) Bosniaand Herzegovinashould nothavebeen internationallyrecog-
nized;
ii) There now exist four differentStateson theerritory of the former
YugoslavRepublicof Bosnia andHerzegovina; iii) Therefore Bosniaand Herzegovina is not a Party to the 1948Geno-
cide Convention.
As will be briefly shownhereafter, the two first propositionsare erroneous
4.4
and devoid of any substance.But independentlyof their falsity, there is
clearly a non sequiturbetweenpoints i) and ii) on the one hand and point
iii) on the other hand Bosniaand Herzegovinafails to understandthe link
between the questionsof recognitionand of the asserted existenceof four
States on the temtory of the formerYugoslavRepublicof Bosniaand
Herzegovina on the one hand, and the problemof successionto the Geno-
cide Conventionon the other hand.
Irrelevanceandfalsityof the argumentbasedon the asserted existence of
four "Stdes"within the borderof theformer YugoslavRepublic of
BosniaandHenegovina
4.5 Yugoslavia (Serbiaand Montenegro)'~assertionthat there would exist four
Stateswithin the border of the former YugoslavRepublicof Bosniaand
Herzegovina is grossly erroneous.In any case, it has strictly no legal (or
other) relevancein respectof successionto the GenocideConvention.
4.6 As provided for in Article 34 of the 1978Conventionon Successionof
Statesin respect of Treaties:
"Whena part or Dartsof the temtory of a State separateto
form one or more States, whetheror not the predecessor
continues to exist:
(a) any treaty in force at the date of the successionof
Statesin respectof the entire territory of the prede-
cessor State whichhas becomea successorState continuesin res~ectof each successorState so for-
&" [Annex4.1, emphasis added].
Itcan, therefore, not bedoubtedthat whether the dissolutionof former
Yugoslaviahas resulted into the creationof five new Statesor more is
absolutely irrelevantas to the applicationof the rules relating to succession
of States.
4.7 However, Bosnia andHerzegovina cannot accept Yugoslavia (Serbiaand
Montenegro)'~assertionsaccordingto whichthere would exist, on the
territory of the former YugoslavRepublicof Bosnia andHerzegovina,
three other "new States...truly independent from thecentral authority"
[Preliminaw Ob-iections,B.2.4, p. 1281,As explainedin the BosniaMe-
morial [se e.g.:pp. 71-94]and in the present WrittenStatement [para.
4.101, challenges to the authorityof the Governmentof Bosniaanderze-
govina were organisedand directed from Belgrade,whose interventionin
internal affairsof Bosnia andHerzegovina hasbeen constantly condemned
by the internationalcommunity.
4.8 Thus, as early as 30 May 1992,SecurityCouncil Resolution752 (1992):
"3. Demands thatal1formsof interferencefrom outside
Bosnia-Herzegovina, includinby units of the Yugoslav
People'sArmy (JNA)as well as elementsof the Croatian
Army cease immediately,and thatBosnia-Herzegovina's
neighbourstake swiftaction to end such interferenceand
respect the territorial integrityof Bosnia-Herzegovina"
morial, Annexes,part. 3, annex l; see also, e.g.: resolutions
787 (1992), 16Nov. 1992or 819 (1993), 16April 1993;or
GeneralAssemblyresolution461242,25 August 1992, Me-
morial, Annexes, vol.1, Annex3-1111.
Then, after having condemned"the failureof the authorities inthe Federal
Republicof Yugoslavia(Serbiaand Montenegro),includingthe Yugoslav People's Army (JNA), to take effectivemeasuresto fulfil the requirements
of resolution 752(1992)", the SecurityCouncil, "actingunder Chapter VI1
of the Charter of the UnitedNations", imposedsanctionsupon Yugoslavia
(Serbiaand Montenegro)by its resolution757 (1992)of 30 May 1992
[Mernorial,Annexes,part 3, annex 1; see alsoe.g.: resolutions 820(1992)
of 17 April 1993, 838 (1993)of 10June 1993,ibid. or 943 (1994)of 23
September 1994, Annex4.2 to the present WrittenStatementl .
4.9 The SecurityCouncilalso insistedon "the need to restore the full sover-
eignty, territorialintegrityand political independenceof the Republicof
Bosnia andHerzegovina"[Resolution836 (1993)of 4 June 1993,Memo-
rial, Annexes,part. 3, annex 11and affirmed the continuingrelevanceof:
-
The sovereignty, territorial integrityand political
"(a)
independenceof the Republicof Bosniaand Herzego-
vina" [resolution859 of 24 August 1993, ibid;see
also resolutions 871(1993)of 4 October 1993,900
(1994)of 4 March 1994, ibid, 913 (1994)of 22 April
1994or 942 (1994)of 23 Sept. 1994, 998 (1995)of
21 April 1995, 1004(1995)of 12July 1995or 1010
(1995)of 10August 1995,Annexes4.3-4.7 to the
present WrittenStatementl.
These statements,having beenmadeunder ChapterVI1of the United
Nations Charter, are declarativeof the law andhave bindingforce for al1
States [cf. Articles 25 and 103of the Charte- see I.C.J., Ordersof 14
April 1992,Casesconcerning Question osf InterpretationandApplication
of the1971MontrealConvention arisingfrom theAerialIncidentat Loc-
kerbie,I.C.J. Reports1992,pp. 15and 126, Annexes4.8 and 4.91.
4.10 In the same vein, the GeneralAssembly,in its resolution461242of 25
August 1992: "Reaffirmingthe necessityof respectingthe sovereignty,
temtorial integrity,political independenceand national unity
of the Republicof Bosniaand Herzegovina,and rejecting
any attemptto change theboundariesof that Republic (...);
2. Demands (.. .that al1formsof interferencefrom
outsidethe Republicof Bosnia andHerzegovinacase
immediately;
3. Demandsfurther that those units of the Yugoslav
People'sArmy andelementsof the CroatianArmy
now in Bosniaand Herzegovinamust either be with-
drawn, or be subject to the authorityof the Govern-
ment ofBosniaand Herzegovina (...);
4. Reaffirmsits supportfor the Governmentand people
of the Republicof Bosniaand Herzegovinain their
just struggleto safeguardtheir sovereign ty,political
independence, territorial integrityand unity" [Memo-
-ial, Annexes,vol. 1, Annex3-1111.
4.11 The General Assemblystronglyreaffirmedits views in resolution471121of
18 December 1992 where,
"StronelvcondemningSerbiaand Montenegroand their
surrogatesin the Republicof Bosnia andHerzegovinafor
their continued non-compliance with al1relevant United
Nations resolutions (...),
1. Reaffirmsits supportfor the Governmentand people
of the Republicof Bosnia andHerzegovinain their
just struggleto safeguardtheir sovereignty, political
independence,temtorial integrityand unity;
2. Stronelv condemnsSerbia, Montenegroand Serbian
forces in the Republicof Bosnia andHerzegovinafor
violationof the sovereignty,territorial integrityand
political independenceof the Republicof Bosniaand
Herzegovina,and their non-compliancewith existing resolutionsof the Security Counciland the General
Assembly,as well as the LondonPeace Accordsof
25 August 1992;
Demandsthat Serbiaand Montenegroand Serbian
forces in the Republicof Bosnia andHerzegovina
immediately ceases their aggressive actsand hostility
and complyfullyand unconditionallywith the rele-
vant resolutionsof the SecurityCouncil, in particular
resolutions 752 (1992)of 15 May 1992, 757 (1992)
of 30 May 1992,770 (1992)and 771 (1992)of 13
August 1992, 781(1992)of 9 October 1992,and 787
(1992)of 16November 1992,General Assembly
resolution461242and the LondonPeace Accordsof
25 August 1992;
4. Demandsthat, in accordancewith SecurityCouncil
resolution752 (1992),al1elementsof the Yugoslav
People'sArmy still in theterritory of the Republicof
Bosniaand Herzegovinamustbe withdrawn immedia-
tely, or be subjectto theauthorityof the Government
of the Republicof Bosnia andHerzegovina,or be
disbandedand disarmedwith their weapons placed
under effectiveUnited Nationscontrol;" [ibid., emp-
hasis added; see also resolutions48/88 of 20 Decem-
ber 1993,ibid. and 49/10 of3 November 1994,
Memorial, Annex 3-111,p. 1211.
4.12 It cannot therefore be doubtedthat, both in fact andin law, only one State
exists within theorders of the former Yugoslavrepublicof Bosniaand
Herzegovina. This State isthe Republicof Bosniaand Herzegovina, a
Party to the 1948Genocide Conventionfor the reasons explainedin the
Memorialand recalled above [paras. 4.5 to 4.71. Moreover, Yugoslavia
(Serbiaand Montenegro) hasnot seriously disputedthese reasons. Irrelevanceandfalsity of Yugoslavia(Serbiaand Montenegro) 'sasserti-
ons concerninginternational recognition of theRepublicof Bosniuand
Henegovina
4.13 In its resolution49/10, the GeneralAssembly stated
"Reaffirmingonce again that, as theRepublicof Bosniaand
Herzegovinais a sovereign, independentStateand a Member
of the United Nations,it is entitled toal1rights provided for
in the Charterof the UnitedNations, includingthe right to
self-defenceunder Article51thereof' [Annex 4.101.
There is no doubt that this statementcorrespondswith the legal reality:
Bosnia andHerzegovinais a sovereignand independentState and has been
recognisedas suchby the international communityas is shown, for exam-
ple, by its admission to theUnitedNations [cf. General Assembly,Resolu-
tion 461237of 22 May 1992,Annex 4.111.
4.14 The Governmentof the Republicof Bosniaand Herzegovina does not
ignore that "the effectsof recognitionby other Statesare purely declarato-
ry" [ArbitrationCommission ofthe InternationalConference for Peace in
former Yugoslavia,Opinion no1, 29 November 1991,I.L.M. 1992, vol.
XXXI, p. 1495, Memorial,Annexes,Part. 4, annex 51,as well as mem-
bership in the United Nations. However, as admittedby the Arbitration
Commissionof the International Conferencefor former Yugoslavia,
"...while recognitionof a Stateby other Stateshas only
declarativevalue, suchrecognition,dong with membership
of international organisations,ars witnessto these States'
conviction thatthe political entityso recognizeds a reality
and confers on it certain rights and obligationsunder inter-
nationallaw" [Opinionn08, 4 July 1992, I.L.M. 1992,p.
1523, Memorial, Annex 191.4.15 In the present case, 95 Stateshave formally recognizedBosniaand Herze-
govina and 64 Stateshave established diplomaticrelations with Bosnia and
Herzegovina [Annex4.12 and 4.131, while beingcompletelyaware of the
problems encounteredby its central Government toexerciseits authority on
parts of her territory,ince, with the decisiveencouragement andaid of the
RespondentState, a minorityof its populationhas entered into rebellion.
Yugoslavia (Serbiaand Montenegro)is certainlynot welladvisedin invo-
king thepartial lack of territorialcontrolof the BosnianGovernmenton her
territory, a situationt itself created, to challengeBosnia andHerzegovina's
statehood.
4.16 As the ArbitrationCommission recalled,
"...in a referendumheld on 29 February and 1 March 1992,
the majorityof the peopleof the Republic have expressed
themselvesin favourof a sovereignand independent Bosnia.
The result of the referendumwas officiallypromulgatedon 6
March, and, since that date, notwithstanding thedramatic
events that have occurredin Bosnia-Herzegovina,the consti-
tutionalauthoritiesof the Republic have actedlike those of a
sovereignStatein order to maintainits territorial integrity
and their fulland exclusive powers"[Opinion no11, 16July
1993, I.L.M. 1993,p. 1588,Memorial, Annex 81.
And, for their part, the GeneralAssembly andthe SecurityCouncilof the
United Nations have constantly proclaimed the right of the State of Bosnia
and Herzegovinato "sovereignty,political independence,territorial integri-
ty and unity" in her recognizedborders whilefirmly condemningYugosla-
via (Serbiaand Montenegro)'~intervention[seeabove, paras. 4.8-4.121.
4.17 It can therefore certainlynot be sustainedseriously thatchallengesto cen-
tral authority in Bosnia andHerzegovinaor refusal of a multi-ethnicand
multicultural Stateby a minorityof the population - indeed not a majority as Yugoslavia (Serbiaand Montenegro) wronglyasserts [PreliminarvOb-
jections, para. B.2.4, p.281are in any sensebars to statehood, intematio-
nal recognitionand rights to succeedthe SocialistFederal Republicof
Yugoslaviaof Bosnia andHerzegovina.
4.18 In any case, it has to be stressedthat recognitionof Statesand succession
to multilateral treatiesare entirelydifferenttopics. Yugoslavia(Serbiaand
Montenegro) does not cite any authorityor precedentin supportof its claim
that, absent recognitionor in case of premature recogniti-nquod non -
"consequently,the so-calledRepublicof Bosnia-Herzegovina
cannot enter into the 1948Genocide Conventionby successi-
on" [PreliminaryOb-iections,para. B.2.7, p. 1291
and there is certainlyno ground for suchan assertion. Moreover, itisa
well establishedrule of internationallaw thatparticipationto multilateral
conventions isindependent from recognition [cf.Oppenheim'sInternational
Law, 9th editionby sir RobertJENNINGS andsir Arthur WATTS, Lon-
don, 1992, p. 170, Annex 4.14; Paul REUTER,Introductionau droit des
traités, Paris,1985,p. 69, Annex 4.15; P. DAILLIERet A. PELLET,
Droit internationalpublic (NGUYEN QUOCDinh), Paris, 1994,p. 541,
Annex 4.16; Joe VERHOEVEN,La reconnaissanceinternationale dans la
pratique contemporaine,Paris, 1975,p. 430, Annex 4.17l.And, as is
apparent from principlesembodiedin Article 34 of the Vienna Convention
on Successionof Statesin respectof Treaties, successionto treaties in
cases of secessionor dissolutionhas nothingto do with recognitionby
other States.
4.19 Consequently,Yugoslavia(Serbiaand Montenegro)'~fourth preliminary
objectionis ill-foundedand neither theerroneousassertion thatfour "Sta-
tes" wouldbe in existenceon the territory of the former Yugoslavrepublicof Bosniaand Herzegovina,nor its falseallegations concerningthe recogni-
tion of Bosnia andHerzegovinaare bars to the jurisdiction of the Court in
this case. RESPONSETO THE
Fm
PRELIMINARYOBJECTION
5.1 According toYugoslavia(Serbiaand Montenegro)'~fifth preliminary ob-
jection:
"There is no disputebetweenthe parties which wouldbe
coveredby Article IX of the 1948 GenocideConvention"
[PreliminaryObjections,p. 1291.
This allegationis based on two assertions,both of whichare clearly groun-
dless:
i) The 1948 GenocideConvention could"only applywhen the State
concemedhas territorialjurisdictionin the areas in which the brea-
ches of the Conventionare alleged to haveoccurred" [ibid., C.1, p.
1291;
ii) "The dutiesprescribedby the Conventionrelate to "the prevention
and punishmentof the crimeof genocide", when this crime is com-
mittedby individuals", notby States [ibid., C.2, p. 1301.
5.2 In its Memorial, Bosniaand Herzegovinahas dealt, in somedetail, with
"The scopeof thejurisdictionof the Courtratione materiae"
[parus.4.2.4.1 to 4.2.4.16, pp. 176-183;see also Chapters
5.1 and5.2., pp. 191-2081.
Itdoes not seem necessaryto repeat thisargument here, especially not
since Yugoslavia (Serbiaand Montenegro)has not eventried to refute it.
Sufficeit to show that the Genocide Conventionis limitedneither to the
territory of the RespondentState, nor to acts committedby individuals. Non-tenitorialityof the GenocideConvention
5.3 Only one provisionof the 1948 Conventionprovides for a limited territorial
applicationof the Convention:in conformitywith the usual principles of
criminal internationallaw, the first sentenceof Article VI states that
"Personscharged with genocideor any of the other acts
enumeratedin ArticleIV shallbe tried by a comptent tribu-
nal of the State in the territorv of which the act was commit-
-ed[...]"(emphasisadded).
However thesecondsentence ofthis sameprovision addsan element of
internationalitysince it also foreseestrials
"by such internationalpend tribunalas may havejurisdicti-
on..." (in the presentcase, the InternationalCriminalTribu-
nal for the formerYugoslavia).
5.4 As for the rest, not a single provisionin the Convention, including Articles
1and V cited by the RespondentState, mentionsor alludes to a possible
limited territorial application.To thecontrary, in accordancewith the text
of Resolution96 (1)of the GeneralAssemblyof 11December 1946, as
recalled in paragraph 3 of the Preamble,it organizesinternationalcoopera-
tion
"betweenStateswith a view to facilitating the speedypreven-
tion and punishmentof the crime of genocide" [Amex 5.11.
Consequently,in conformitywith Article1, States havean absolutelygene-
ral and unlimitedobligationto take effectivemasures in order to prevent
and to punish the crime of genocide,wherever it is committedand, a
fortiori, not tocommitthemselves theacts prohibitedby Articles II and III
whether on their own territory or anywhereelse.This interpretation, whichconformsto the clear meaningof the text of the
Convention,is al1the more inescapable, giventhat, as the Court explained
in its AdvisoryOpinionof 28 May 1951,
"The origins and characterof that Convention,the objects
pursued by the GeneralAssembly andthe contractingparties,
the relations whichexist betweenthe provisionsof theCon-
vention, interse, and between those and these objects, fur-
nish elementsof interpretationof the willof the General
Assemblyand the parties. The originsof the Convention
show that it was the intentionof the United Nations to con-
demn andpunishgenocide as"a crime under international
law" involvinga denial of the right of existenceof entire
human groups, a denial which shocks theconscienceof
mankind andresults in great lossesto humanity, and which
iscontrary to morallaw andto the spirit and aims of the
United Nations" [Resolution 96(I) of the General Assembly,
December 11th, 19461.
The first consequencearising from this conceptionis that the princi-
ples underlyingthe Conventionare principleswhich are recognized
by civilized nations asbindingon States, even withoutany conventi-
onal obligation.A secondconsequenceis the universal character
both of the condemnationof genocideand of the CO-operation requi-
red "in order to liberatemankindfrom such an odious scourge"
[Preambleto the Convention].The Genocide Conventionwas there-
fore intendedby the GeneralAssembly andby the contractingpar-
ties to be definitely universalin scope. It was infact approvedon
December 9th, 1948,by a resolutionwhich was unanimouslyadop-
ted by fifty-six States.
The objectsof sucha conventionmustalso be considered.
The Conventionwas manifestly adoptedfor a purely humani-
tarian and civilizingpurpose. It is indeeddifficult to imagine
a conventionthat mighthave this dual character toa greater
degree, since its objecton the one hand is to safeguard the
very existenceof certain humangroups and on the other to
confirmand endorsethe most elementaryprinciplesof mora-
lity. In such a convention thecontractingStatesdo not have
any interestsof their own;they merelyhave, one and dl, a
commoninterest, namely, the accomplishmentof those high
purposeswhich are the raisond'êtreof the convention. Consequently,in a conventionof this type one cannot speak
of individual advantages ordisadvantagesto States, or of the
maintenanceof a perfect contractualbalancebetweenrights
and duties. The high idealswhich inspiredthe Convention
provide, by virtue of the commonwill of the parties, the
foundationand measureof al1its provisions" [I.C.JReports
1951, p. 23, Annex5.21.
This laves no room open toany doubtas to the general scopeof the Con-
vention and the impossibilityof affordingit a restrictiveenseaccording to
which, Stateswould be bound only if they haveterritorialjunsdiction in
the relevantareas, as Yugoslavia(Serbiaand Montenegro)claims.
It must be noted that in both its Orders on the indicationof interim masu-
res of 8 April and 13 September1993,the Court has clearly impugned
beforehandthe interpretationof the Conventionnow asserted by Yugoslavia
(Serbiaand Montenegro).
5.7 In itsOrder of 8 April 1993, the Courtindicated unanimously that:
"The Governmentof the Federal Republicof Yugoslavia
(Serbiaand Montenegro) shouldimmediately,in pursuance
of its undertakingin the Conventionon the Preventionand
Punishmentof the Crimeof Genocideof 9 December 1948,
take al1masures withinits power to prevent commissionof
the crime of genocide;"
and, by 13votes to 1, that:
"The Governmentof the FederalRepublicof Yugoslavia
(Serbiaand Montenegro)shouldin particular ensure that any
military, paramilitaryor irregular armed units which may be
directed or supportedby it, as well as any organizationsand
persons which may be subjectto its control, directionor
influence, do not commitany acts of genocide, of conspiracy
to commit genocide,of direct and public incitementto com-
mit genocide, or of complicityof genocide, whether directed
against the Muslimpopulationof Bosniaand Herzegovinaor againstany other national, ethnical, racialor religiousgrou-
p" [I.C.J. Reports, 1993,p. 241,
thus showing that Yugoslavia (Serbiaand Montenegro)was bound by the
Convention evenif the relevant actswere committedon the territory of
Bosniaand Herzegovina,if these acts were under its control.
5.8 Significantly,the overwhelming majorityof the Courtwas not convinced
by the views expressedby Judge Tarassovin an appendeddissenting decla-
ration, in which hestated that the "Yugoslavgovernment"could not be
held responsiblewhenpersonsaccusedto commitor incite genocide
"are not itscitizensand not withinits territorialjurisdiction"
[ibid., p. 271.
5.9 In its Order of 13September1993,the Court has reaffirmed theprovisio-
na1measuresit had previously indicated[I.C.J. Reports 1993,pp. 349-
3501,makingeven clearer that theaim was:
"to prevent commissionof the crime of genocidein the
territorv of Bosnia-Herzegovina"[ibid., p. 349, emphasis
added] .
5.10 For their part, intergovernmental organsof the United Nations have con-
stantly expressed theview that:
"Statesare to be held accountablefor violationsof human
rights which their agentscommituDonthe temtory of mot-
her State" [G.A., Resolution461242,25 August 1992, &
morial, Annexes,Annex3-111,emphasisadded; seealso
resolutions471147, of18 December1992,Annexes,Part.3,
Annex 3, Commissionon HumanRights, Resolutions 199-
21S111of 14August 1992and 19921s-211of 1 December
1992,ibid., Annexes 12 and 131,
and, even more explicitly,that: "Statesare to be held accountablefor violationsof human
rights which their agents commitupon their own territory or
the temtow of anotherState" [ibid., Annex3; emphasis
added] ,
a general principlewhichappliesto genocide,and in accordance with
which the 1948Conventionmustbe interpreted.
5.11 As Judge E. Lauterpachtput it in his SeparateOpinionappendedto the
second Order of 1993,
"Obviously,an absolutelyterritorialview of the duty to
prevent genocidewouldnot makesense since this would
mean that a Party, though obligedto preventgenocidewithin
its own territory, is not obligedto preventit in temtory
which it invadesand occupies.That wouldbe nonsense. So
there is an obligation,at any rate for a Stateinvolvedin a
conflict, to concern itselfwith the preventionof genocide
outside its territory" [I.CReports, 1993,p. 4441.
As Bosnia andHerzegovina preciselycontendsthat Yugoslavia(Serbiaand
Montenegro)is directlyinvolved inthe acts of genocideand the related acts
committedon the territory of Bosniaand Herzegovina, it is probably super-
fluous to discuss thesecond question raisedby Judge Lauterpacht,whether
the 1948Conventionrequires "every Party positivelyto prevent genocide
wherever it occurs" [ibid].
5.12 It is therefore respectfullysubmittedthat the applicationof the 1948Geno-
cide Conventionis not limited to theterritory on which the Respondent
State has jurisdiction and that, in any case, in the presentcase, the problem
is irrelevant since, precisely, Yugoslavia(Serbiaand Montenegro) has
usurped importantaspectsof jurisdiction in interferingin the internal af-
fairs of Bosnia andHerzegovina,has violatedher territorial integrity, and
has committed genocideand aided and abetted the commission ofgenocide on her territory. Moreover, the Governmentof Bosniaand Herzegovina
also submitsthat Yugoslavia(Serbiaand Montenegro)has also violated the
1948 Conventionby failingto try thecriminals presenton its territory (as it
should havein conformitywith Article VI) and by using its territory, and
letting its territorybeing used,inorder to commitgenocide againstnon-S-
erb populationsand to be used as a back base for the genocidecommitted
on the temtory of Bosniaand Herzegovina.
Theresponsibility of Statesunderthe GenocideConvention
5.13 Without any substance,Yugoslavia(Serbiaand Montenogro) asserts that
"The duties [of States] prescribedby the Conventionrelate
[only]to "the preventionand punishmentof the crime of
genocide" when this crime is committedby individuals:the
provisionsof ArticlesIV, V, VI and VI1makethis abundant-
ly clear" [Prelimina~ Objections,C.2, p. 1301.
5.14 It is indeed true that these provisions imposeobvious legalduties upon each
State Party to theConvention:
-
an obligationto try persons charged withgenocideand other related
crimes in their tribunals[ArticleVI], and
-
a duty to extradite orprosecute(aut dedere, autjudicare) [Article
VI11.
The failure of Yugoslavia(Serbiaand Montenegro)to complywith these
obligations (orat least with the dutiesembodiedin Articles VI and VII)
and, more generally, to abideby its commitmentto prevent and to punish
acts of genocideand related acts, is, indeed, part of the present caseand is
expresslyincludedin paragraph4 of the final Submissionsmadeby Bosnia
and Herzegovina inher Memorial[at p. 2941,while paragraphs5 to 7 draw the consequencesfor the breachesof the Convention, includingthis
failure to prevent and to punish.
5.15 However, it is obviousthat theobligationsof Statesstemming fromthe
Conventionare not limitedto this duty. Itwould, indeed, be quite odd that
Stateswould be bound by a duty to preventand to punish genocidebut
would be at liberty to commitgenocidethemselves!
5.16 This is not only a logical impossibility;the clear text of the Convention
makesplain thatit is not so. ArticleVI11encourages the Contracting par-
ties to
"cal1upon the competentorgans of the United Nationsto
take such actionsunder the Charterof the United Nations as
they considerappropriatefor thepreventionand suppression
of acts of genocideor any of the other acts enumeratedin
Article III".
And, above dl, ArticleIX provides for the seizinof the I.C.J. in case of
"[dlisputesbetweenthe ContractingParties relating to the
interpretationor fulfillmentof the present Convention, inclu-
din~those relating to the res~onsibilitvof a State for genoci-
de or for any of the other actsenumeratedin Article III"
[emphasisadded] .
5.17 In its Mernorial, Bosniaand Herzegovinahas described, in some details,
thetravauxpréparatoire sf this provision[see Sections5.2.2 and 5.2.3,
pp. 200-2081.It followsfrom them that
i) the drafters were anxiousto create a compulsoryjurisdiction for
cases when a State is charged with genocide;
ii) they decidedto make a distinctionbetweentrials of individuals -
which belong to nationalCourts or a future internationaltribunal - and proceedingsagainstStates responsiblefor genocideor related
acts; and,
iii) in the latter case, they gave competenceto the InternationalCourt of
Justice.
Althoughthe matter was discussedat length, this outcomeis in keeping
with Resolution 180(III) relatingto the "Draft Conventionon genocide",
adopted by the General Assemblyon 21 November 1947and according to
which:
"genocideis an internationalcrime entailingnationaland
international responsibilityon thepart of individualsand
States" [Memorial,Annexes,Part 5, Vol. 1, Annex 12 -
emphasisadded].
This is alsoin keepingwith the origins, character, objectsand purpose of
the Conventionas describedby the Court in its 1951Advisory Opinion [see
above, para. 5.51.
5.18 It may be noted that the organs of the United Nations haveendorsed this
self-evidentinterpretation.Thus, the GeneralAssemblyand the Commissi-
on on Human Rights, whileinsistingon the individual responsibilityof
persons participatingin the abhorrentpractice of "ethniccleansing" ["which
is a form of genocide"as recalledby the General Assemblyin Resolution
471121,of 18December 1992 -Memorial, Annexes, Annex 3-1111h ,ave
also acknowledged that
"Statesare to be held accountable for violationsofhuman
rights which their agentscommitupon the territory of anot-
her State" [see e.g.: GeneralAssembly ,Resolutions471147,
of 18December 1992or 481153,of 20 December 1993,
Memorial, Annexes,Part 3, annex 3, these resolutionsex-
pressly indicatein their preamblethat the General Assembly
is "guidedby the purposesand principlesof [..] the Con-
vention on the Preventionand Punishmentof the Crime of
Genocide"; see also Commissionon HumanRights, Reso- lutions 19921s-111,of 14August 1992, 19921s-211,of 1
December 1992or 199317of 23 February 1993,ibid., an-
nexes 11, 13and 141.
It can also be noted thatthese resolutionslay stress upon the special res-
ponsibilityof Serbiaand Montenegroin "the violationsof the human rights
of the Bosnianpeople and of international humanitarianlaw" which they
"committedas policy" [General Assembly,Resolution48/88, of 20 Decem-
ber 1993,ibid., annex 3; see also Resolutions47/121, prec., and Commis-
sion on Human Rights, Resolutions1991s-211and 199317,prec.].
5.19 Itcan therefore not be seriouslysustainedthat the 1948 Conventionapplies
only to individualresponsibilityfor genocideand related acts.Such a claim
lies on
"a completely erroneousinterpretation.The Convention
clearly covers mass killingsor persecutionsby, or at the
instance, of governments" [PhilipB. PERLMAN, "The
GenocideConvention",NebraskaLawReview, 1950, n O1,
Annex5.3, p. 6; see also: sir Robert JENNINGSand sir
Arthur WATI'S, OPPENHEIM'SInternationalLaw, London,
9th ed., 1992, vol.1,Annex5.4, p. 994; Farhad MALEXI-
AN, International CriminalLaw, Uppsala, 1991,Vol. 1,p.
317, Annex5.51.
5.20 Consequently,the Court has jurisdictionto examine not only Yugoslavia
(Serbiaand Montenegro)'~failureto preventand to punishacts of genoci-
de, but also its violationsof ArticlesII and III of the 1948Conventionas
required in Submissions1, 2 and 3 of Bosniaand Herzegovina's Memorial.
Therefore, its fifth objectionmust necessarilybe dismissed. RESPONSETO THE
SIXTH
PRELIMINARYOBJECTION
6.1 The sixth PreliminaryObjectionraised by Yugoslavia(Serbiaand Montene-
gro) rads as follows:
D.1. In case the Court qualifies the Noteof Successionas
accession, the1948 Genocide Conventionhas beenin force
betweenthe partiessince29 March 1993" [Preliminary
Ob-iectionsp. 1311.
6.2 The sixth and seventhPreliminaryobjectionsshould, in a sense, be rad
together, as their clear and intendedpurpose is to evade the applicationof
the GenocideConventionto the most horrendous factsof genocidethat took
placeduring the worst periodof "ethniccleansing", that is in the year
1992, in the Republicof Bosnia andHerzegovina.As far as the date of
"entry into force" of the Genocide Conventiontowards the Republicof
Bosniaand Herzegovina is concerned, theRespondentState seeks to adopt
a two fold demonstration:
- the notificationof succession shouldbe considered, in fact, accor-
ding to Yugoslavia (Serbiaand Montenegro),as a notificationof
accession; therefore, the normalprocedure providedfor in Article
13of the conventionapplies, and the Genocide Conventionwould
then only be operativebetweenthe two parties as of 29 March
1993,that is thirty days after the notificationmadeby the Republic
of Bosniaand Herzegovina: thisis thepurpose of the sixth Prelimi-
nary objection.
- in the alternative, if the Courtdoes not accept thisqualification,and
considers the notificationof successionfor what it is, then Yugosla- via (Serbiaand Montenegro) asserts theGenocideConventionto be
operativebetweenthe two parties only from the date of that notifi-
cation, that is 29 December 1992:this is the object of the seventh
Preliminaryobjection,whichwill be dealt with later.
6.3 The ApplicantState rejects both of thesepretensions, which are in clear
contradictionwith general State practiceand the almostunanimouslegal
authorities. Itsanswer is also two-fold:
- the notificationof successionis not a notificationof accession, as
will beshownin the refutationof the sixth Preliminary objection;
- the notificationof successiontakes effect on the date of independen-
ce, as will be demonstratedin the answerto the seventhPreliminary
objection.
6.4 It can be emphasizedhere that, if the Court wereto follow theline of
reasoning presentedby the RespondentState, it would mean that, unless a
successor State issuesa notificationof successionon the very same day of
its accession to sovereignty,a gap wouldautomatically appear in the appli-
cation toits territory of the universalconventionson human rights and of a
humanitariancharacter. The drasticcharacterof the consequencesof the
rule that supposedlyexists accordingto Yugoslavia(Serbiaand Montene-
gro), show that thiswhole reasoningmustbe rejected. Therefore, the Court
is respectfully invitedto rejecthese contentions assertedby the Respon-
dent, as containedin the sixthand seventhPreliminaryobjections, con-
cerning the date asof which the Republicof Bosniaand Herzegovinais
bound by the GenocideConvention,and accordinglyto rule that the Geno-
cide Conventionis in force betweenthe parties since 6 March 1992.6.5 In its sixth Preliminary objection,the Federal Republicof Yugoslavia
(Serbiaand Montenegro)asks theCourt to decide that the notificationof
succession is not a notificationof succession,but is in fact a notificationof
accession, with the consequencethat the Genocide Conventionwould only
be in force between theparties since29 March 1993:
"Should theCourt...qualifythe notificationof successionas
accession, the 1948Genocide Conventionwould take effect
for the parties,ursuantto Art.XII1of this Conventionnin-
ety daysafter the depositionof instruments,i.e. on 29
March 1992[sic]. In that case, the Court would have juris-
dictionas of that date" [Prelimina~ Ob-iections,15June
1995, p. 132, D.1.51.
6.6 It is Bosniaand Herzegovina'scontentionthat, contraryto the Respondent
Statesbold assertion, the notificationof successioncannot be transformed
into a notificationof accession.There is absolutelyno reason why the
notificationof successionof the Republicof Bosniaand Herzegovina,
clearly framedas such, shouldor could be"mutated"and considered as a
notificationof accession.In fact, the Secretary-Generalof the United Nati-
ons has treated it as a notificationof succession,as recognisedby the
International Courtof Justice:
" the Court observesthat theSecretary-Generalhas treated
Bosnia-Herzegovina,not as acceding,but as succeedingto
the Genocide Convention" [Order of 8 April 1993, I.C.J.
Reports 1993, p. 16, $251.
6.7 Needless to Saythat it is self-evidentthat the notificationof succession
cannotbe considered asa notificationof accession, as seemseven to result
involuntarilyfrom theRespondentState'sown writings, when it affirms
that "(t)he Federal Republicof Yugoslaviadoes not see any
possibilityfor the Notificationof Succession wherebythe so-
called Republicof Bosnia andHerzegovina intended toenter
into the Genocide Conven(t)ionto be consideredas its acces-
sion to this Convention" [PreliminaryObjections,June 1995,
p. 131, D.1.31.
6.8 Furthermore, the ApplicantState alsostrongly resistshere the very perver-
se interpretationthat theRespondenttries to give of its Memorial concer-
ning its note of December 1992,when it suggests that the Republicof
Bosnia andHerzegovinawould have acceptedthat this notebe considered
as an accession [PreliminarvObiections,p. 132,D.1.31. Never has the
Republicof Bosnia andHerzegovina accepted suchan amalgam;what the
ApplicantState has said is that it
"has automaticallysucceeded(the formerSFRY) to the1948
Conventionon Genocide,or alternatively(and complementa-
ry) it has establishedits acceptanceof the Conventionth-
rough its communicationto the Secretary-Generalof 29
December 1992" [Memorial,p. 153, 4.2.1.511.
This summaryof Bosniaand Herzegovina's position cited by the Respon-
dent Statemust notbe misinterpretedas it has been byYugoslavia (Serbia
and Montenegro),but mustbe read in the light of the precedingexplanati-
ons. These explanations werequite clearlypresentedin the Memorial [pp.
152-153, 4.21.45 to 4.2.1SOI. Regrettablyit seemsnecessaryto re-iterate
Bosnia and Herzegovina'sposition, in order to refute the rnisconceived
interpretationpresentedby the RespondentState.
6.9 The central assertionof the Republicof Bosnia andHerzegovina is that the
notificationof successionis unnecessary. It results from thisassumption,
that basicallyBosniaand Herzegovina affirmed that it "has automatically
succeeded" [supra]to the Genocide Convention.However, the Republicof Bosniaand Herzegovinamaintainsalso "alternatively(and com~lementa~)"
that at the same time and in addition to the automaticsuccession, it is also
possible to considerthat the noteof December 1992"has establishedits
acceDtanceof the convention",which meansthat it has acknowledgedits
participationin the convention.In other words, the ApplicantState has
proposed two readingsof the notificationof succession.First, that it had no
legal value in itself, butst informed the international community of the
successionof Bosnia andHerzegovinato the Genocide Convention.Se-
cond, that it was a legal sign to confirmits participationas a Party to the
GenocideConvention. Never has the Applicantagreed, as statedby the
Respondent,that its notificationof succession couldbe analysedas an
accession, with the discontinuityimpliedby that lastprocedure.
6.10 Therefore, the Republicof Bosniaand Herzegovina requests theCourt to
reject the sixth Preliminaryobjection.In other words, the Courtis asked to
reject the whimsical analysismadeby Yugoslavia(Serbiaand Montenegro)
of Bosnia andHerzegovina'snote of December 1992,and to recognisethe
notificationof successionregisteredby the Secretary-Generalof the United
Nations for what it is, i.e. a notificationof succession. RESPONSETO THE
SEVENTH
PRELIMINARY OBJECTION
The seventhPreliminaryobjectionof Yugoslavia(Serbiaand Montenegro)
has, as already stated, theepurpose as the sixth: to exclude from
considerationby the Court Yugoslavia(Serbiaandontenegro)'~responsi-
bility for the massiveacts of genocidecommittedduring 1992,one of the
worst periodsof "ethniccleansing".The seventhPreliminaryobjection
reads as follows:
"Shouldthe Courtconcludethat the entry of the so-called
Republicof Bosnia-Herzegovinaby successioninto the 1948
GenocideConventionwas valid for any reason, this Conven-
tion would be operativebetweenthe parties as of 29em-
ber 1992" [Preliminary Obiections,15June 1995,p. 133,
D.21.
7.2 The ApplicantState respectfullyasks the Courtto reject this strangeanaly-
sis of the consequencesof a notificationof successionand to apply the
generallyacceptedrule of internationallaw, accordingto whicha notificati-
on ofsuccessiontakes effect on the date of the accessionto statehood. It is
absolutelybeyonddoubt thatStatepractice before the adoptionof the Vien-
na Conventionon Successionof Statesin respectof Treaties, as well as
after its adoption,has beenarkablyuniformin consideringthat the date
of the successionto treatiesis the date of the State's creation.
7.3 The general positionof the internationalcommunityon that issue was
succinctlysummarisedby theItaliandelegateat the conferenceof codifi-
cation of the Conventionon Successionof Statesin respect of Treaties, during the discussionof the "cleanslate" rule applicableto the newly inde-
pendent States:
"With regardto multilateraltreaties, article 16 (which beca-
me article 17in the finaltext), providedthat the successor
State was entitled tobecomea Party toany treaty of that
kind. That was the effect of successionindependent [...] of
the final clausesof the treaty"[UN Conferenceon Succession
of States in respectof Treaties,AlCONF.80116,vol 1, 24th
meeting, 22 April 1977,p. 169, $44, Annex7.1, emphasis
added].
7.4 The InternationalLaw Commissionhas also quite clearly stated thata
notificationof succession takes effect on the date of independenceof the
successor State.In its commentaryof the draft articles, the International
Law Commissionin dealingwith the effectsof a notificationof succession,
- Article 23, then Article22 - wrote:
"The treaty practiceappearsto confirmthat, on makinga
notificationof succession,a newly independentStateis to be
consideredas being a Party to the treatyfrom the date of
independence" [Draftarticles, Doc AICONF.8014,Vol.III,
p. 62, 52, Annex7.2, ILC's emphasis].
And, lest any doubt could remain, the commentaryaddressesthe question
of the consequencesof the existenceof periods of delay providedfor in
certain treatieson the date of cominginto forceof such a treaty for the
new State. It is difficultto beclearer in its wording, which rejects comple-
tely the thesis put forwardby the RespondentState. The InternationalLaw
Commissionstated that:
"period(s)of delayare not treated as relevantto notifications
of successionin the depositorypracticeof the Secretary-
General. It therefore seemsas if the notionof continuity,
inherentin "succession",has been regardedas excludingthe
ap~licationto notificationsof successionof treaty provisions
im~osin~a period of delav for the entrv into forcefor a particular Stateof a treaty upon depositof an instrument
giving itsconsentto be bound even if the treatyis already in
force generally" [Draft articles,oc AlCN.4lSer.Al1974-
IAdd. 1 @art. l), Annex7.3, p. 241, Art. 22, para. 2, emp-
hasis added].
7.5 The practice of the Secretary-General acting as a depository, as noted by
the InternationalLaw Commission,has ben in complete conformitywith
the principle of continuityof conventionalobligationsfrom the date of
creation of the successorState.
7.6 This practice of the Secretary-Generalhas been followedalso by States
when acting in the same capacityof depository, as acknowledgedin this
same commentary: "(i)n the case of the GenevaHumanitarian Conventions,
the rule now followedby the SwissFederal Councilis that a newly inde-
pendent State which transmitsa notificationof successionis to be conside-
red as a Party from thedate on whichit attainedindependence" [Draft
articles,Doc AlCONF.8014, Vol. III, Annex 7.3, p. 63, $41.
7.8 The positionsadoptedby recent successorStatesare also completelyin line
with the existingpractice. This practice, forexample, has beenquite clear-
ly followedby the CzechRepublicand the Republicof Slovakia. In a letter
dated 16February 1993,to the Secretary-Generalof the United Nations the
Governmentof the Czech Republicstatedthat:
"In conformitvwith the valid ~rincipiesof international law
and to the extent definedby it, the Czech Republic, as a
successorState to the Czech and SlovakFederal Republic,
considersitself bound,as of 1 January 1993. i.e. the date of
the dissolutionof the Czechand SlovakFederal Re~ublic,by
multilateralinternationaltreatiesto which the Czech and
SlovakFederal Republicwas a Party on that date [...]"[Mul- tilateral treaties depositedwiththe Secretary-General, Status
as at3 1December 1994,Annex7.4, p. 8, emphasis added].
Subsequently,in a letter depositedon 19May 1993, the Governmentof the
Slovak Republicnotifiedthat:
"In accordancewith the relevant princi~lesand rules of
internationallaw and tothe extent definedby it, the Slovak
Republic, as a successorState, born from the dissolutionof
the Czech and Slovak Federal Republic, considers itself
bound, as of Januarv 1. 1993,i.e. the date on which the
Slovak Re~ublicassumedres~onsibilityfor its international
relations, by multilateral treaties towhich the Czech and
Slovak FederalRepublicwas a Party as of 31 December
1992.. " [Multilateraltreaties depositedwiththe Secretary-
General, Statusas at 31 December 1994,Annex7.4, p. 8,
emphasisadded] .
7.9 The same practice has been generallyfollowedby al1the States createdin
the territory of the former Socialist Federal Republof Yugoslavia thatis,
Bosniaand Herzegovina,Croatia, Slovenia, Macedonia,as wellas the
Socialist FederalRepublicof Yugoslavia,which have been consideredas
bound without interruptionby the general multilateral conventions.For
example, on 1July 1992 the Governmentof Slovenia informed theSecreta-
ry-General that it considered itselfbound, since its declarationof indepen-
dence on 25 June 1991, to 55 multilateraltreaties, as a successorState to
the former Socialist FederalRepublicof Yugoslavia [Doc. ElCN.4119941-
68, 22 november 1993,Annex7.5, p.41.
7.10 More specifically,as far as the Genocide Conventionis concerned, al1suc-
cessor States to the former Socialist Federal Republicf Yugoslaviahave
considered themselvesas beingbound sincethe date of independenceSlo-
venia made a notificationof successionto the Genocide Conventionon 6July 1992, as havingeffect from the date of its independence,on 8 October
1991Croatia acted exactlyin the same manner, sendinga notificationof
successionto the Genocide Conventionon 12October 1992,with effect
from thedate of accessionto sovereignty, alsoon 8 October 1991. Mace-
donia sent a notificationof successionon 18January 1994, to take effect on
the date of its accessionto sovereignty,on 6 March 1992. As far as Yugo-
slavia (Serbiaand Montenegro)is concerned, thedate of its succession to
the former Socialist FederalRepublicof Yugoslavia is 27 April 1992, the
day of the adoptionof a new constitutionby the entity formedof the for-
mer Republicof Serbiaand the former Republicof Montenegro, as ac-
knowledgedby the BadinterCommission[Opinion n ' 11, 16July 1993,
I.L.M., 1992,vol. XXXI, Annex7.6, p. 15871.
This practice is so generallyaccepted thatit is unnecessaryto enter into a
discussionraised by the RespondentStateon the rule set forth in Article 18
of the draft Conventionon the Successionof Statesin respect of Treaties,
concerning thesuspensionof treaties fornewly independentStates. This
rule itself has never becomea positiverule of internationallaw [Prelimina-
ry Ob-iections,p. 133-134,D.2.2, D.2.3, D.2.41. This aforementioned
discussion relatesto anotherproblem than State succession,and to another
category of Statesthan Bosniaand Herzegovina.Nor is it necessary to
discuss the totallyirrelevantissue of the provisional applicationof treaties
by newly independentStates, which has really nothingto do with the ques-
tion in discussionhere [PreliminarvObiections,p. 134, D.2.5.1, as again
these developmentsconcerna differentissue than the question raisedhere
and a specificcategoryof States, that is newly independent States.Piling
up dates and dates, referencesand references, together with totallyrrele-
vant issues willnot help convincingthe Court. What, for example, one may ask, is the relevanceto the questionsraised by the Respondentof the
date of the successionof Bosniaand Herzegovinato the GenocideConven-
tion, of the fact thatauritius, a newlyindependentState, has sent a note
on temporary applicationof treatieson March 12, 1968,and has entered
the Vienna Conventionon Diplomaticand Consular Relations adoptedon
18 April 1961,by a notificationof successionon 18July 1969?
Obviouslythe answer is: "absolutelynone".
7.12 Legal authoritiesare also of the view that, when a successionoccurs and a
notificationof successionhas ben issued, the State is bound from thedate
of the succession,to the obligationsof its predecessor. This positioncan
even be foundin an authonty cited by the RespondentState, supposedlyin
supportof its views [PreliminaryOb-iections,p. 118, B.1.4.1.1. Discussing
the precedents relatingto notificationsof succession,as far as a general
multilateral treatyis concerned,which is the caseof the Genocide Conven-
tion, Professor Ian BROWNLIE'sopinionis that,
"the actualpractice[..]indicatesthat the successor hasan
option to participateinsucha treaty in its own right irres-
pective of the provisionsof the final clausesof the treatyon
conditionsof participation"[Principlesof Public Internatio-
na1Law, Oxford, ClarendonPress, 1990,4th edition, Annex
7.7, p. 670, emphasis added].
In other words, ProfessorIan BROWNLIE'swritings, contraryto Respon-
dent's suggestions,supportthe contentionof the ApplicantState that it had
a right to succeedautomaticallyto the Socialist Federal Republicof Yugo-
slaviaas a Party to the GenocideConvention,withoutinterruptionand
irrespectiveof the final provisions,[Seealso, P.K. MENON, TheSuc-
cession of States in respectof Treaties,State Property, Archivesand Debts,
The Edwin Mellen Press, 1992, Annex7.8, p. 32; Rein MÜLLERSON, The Continuityand Successionof Statesby reference to the former USSR
and Yugoslavia,ICLQ, vo1.42,Annex7.9, p. 4891.
7.13 Consequently,it cannotbe seriouslycontended thatit is a customaryrule
of internationallaw that, in case of a notificationof succession, therule of
automatic continuityimpliesthat the new Stateis bound fromthe date of its
creation. Onecan even wonderif al1this debate is relevantand whether it
would not bepossibleto lodgea cornplaintagainst Yugoslavia(Serbiaand
Montenegro) quite independentlyfrom thedate on which Bosnia andHerze-
govina succeeded theformer SocialistFederal Republicof Yugoslaviato
the Genocide Convention.
For the Republicof Bosniaand Herzegovina, thedate of creation is 6
March 1992.In Opinion ne 11renderedby the BadinterCommission, it
was clearly stated thatthe dateon which the referendum's resultswere
promulgated, that i6 March 1992,
"mustbe considered thedate on which Bosnia and Herzego-
vina succeededthe Socialist Federal Republof Yugoslavia"
[16 July 1993,I.L.M., Vol. XXXII, 1992,Annex7.10, p.
15881.
Therefore, the Republicof Bosniaand Herzegovinarespectfully invitesthe
Court toconcludethat it succeeded tothe former Yugoslaviaas a Party to
the GenocideConventionon 6 March 1992.In considerationof the foregoing,the Govemmentof the Republicof Bos-
nia and Herzegovina requests the Court:
- to reject and dismissthe Preliminary Objectionsof Yugoslavia(Ser-
bia and Montenegro);and
- to adjudgeand declare:
(i) that the Court hasjunsdiction in respect of the submissions
presentedin the Memorialof Bosnia andHerzegovina;and
that the submissionsare admissible.
(ii)
The Hague, 14November 1995
MuhamedSACIRBEY
Agent of the Governmentof the
Republicof Bosnia andHerzegovina
Statement of the Government of the Republic of Bosnia and Herzegovina on Preliminary Objections