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26 February 2007 |
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General List No. 91 |
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international Court of Justice |
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Application of the Convention on the Prevention and Punishment of the Crime of Genocide |
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Bosnia and Herzegovina |
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v. |
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Serbia and Montenegro |
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Judgment |
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The COURT, composed as above, after deliberation, delivers the following Judgment: 1. On 20 March 1993, the Government of the Republic of Bosnia and Herzegovina (with effect from 14 December 1995 “Bosnia and Herzegovina”) filed in the Registry of the Court an Application instituting proceedings against the Federal Republic of Yugoslavia (with effect from 4 February 2003, “Serbia and Montenegro” and with effect from 3 June 2006, the Republic of Serbia ⎯ see paragraphs 67 and 79 below) in respect of a dispute concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations on 9 December 1948 (hereinafter “the Genocide Convention” or “the Convention”), as well as various matters which Bosnia and Herzegovina claimed were connected therewith. The Application invoked Article IX of the Genocide Convention as the basis of the jurisdiction of the Court. 2. Pursuant to Article 40, paragraph 2, of the Statute of the Court, the Application was immediately communicated to the Government of the Federal Republic of Yugoslavia (hereinafter “the FRY”) by the Registrar; and in accordance with paragraph 3 of that Article, all States entitled to appear before the Court were notified of the Application. 3. In conformity with Article 43 of the Rules of Court, the Registrar addressed the notification provided for in Article 63, paragraph 1, of the Statute to all the States appearing on the list of the parties to the Genocide Convention held by the Secretary-General of the United Nations as depositary. The Registrar also sent to the Secretary-General the notification provided for in Article 34, paragraph 3, of the Statute. 4. On 20 March 1993, immediately after the filing of its Application, Bosnia and Herzegovina submitted a request for the indication of provisional measures pursuant to Article 73 of the Rules of Court. On 31 March 1993, Bosnia and Herzegovina filed in the Registry, and invoked as an additional basis of jurisdiction, the text of a letter dated 8 June 1992, addressed jointly by the President of the then Republic of Montenegro and the President of the then Republic of Serbia to the President of the Arbitration Commission of the International Conference for Peace in Yugoslavia. On 1 April 1993, the FRY submitted written observations on Bosnia and Herzegovina’s request for provisional measures, in which it, in turn, recommended that the Court indicate provisional measures to be applied to Bosnia and Herzegovina. By an Order dated 8 April 1993, the Court, after hearing the Parties, indicated certain provisional measures with a view to the protection of rights under the Genocide Convention. 5. By an Order dated 16 April 1993, the President of the Court fixed 15 October 1993 as the time-limit for the filing of the Memorial of Bosnia and Herzegovina and 15 April 1994 as the time-limit for the filing of the Counter-Memorial of the FRY. 6. Since the Court included upon the Bench no judge of the nationality of the Parties, each of them exercised its right under Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case: Bosnia and Herzegovina chose Mr. Elihu Lauterpacht and the FRY chose Mr. Milenko Kreća. 7. On 27 July 1993, Bosnia and Herzegovina submitted a new request for the indication of provisional measures. By letters of 6 August and 10 August 1993, the Agent of Bosnia and Herzegovina indicated that his Government wished to invoke additional bases of jurisdiction in the case: the Treaty between the Allied and Associated Powers and the Kingdom of the Serbs, Croats and Slovenes on the Protection of Minorities, signed at Saint-Germain-en-Laye on 10 September 1919, and customary and conventional international laws of war and international humanitarian law. By a letter of 13 August 1993, the Agent of Bosnia and Herzegovina confirmed his Government’s intention also to rely on the above-mentioned letter from the Presidents of Montenegro and Serbia dated 8 June 1992 as an additional basis of jurisdiction (see paragraph 4). 8. On 10 August 1993, the FRY also submitted a request for the indication of provisional measures and on 10 August and 23 August 1993, it filed written observations on Bosnia and Herzegovina’s new request. By an Order dated 13 September 1993, the Court, after hearing the Parties, reaffirmed the measures indicated in its Order of 8 April 1993 and stated that those measures should be immediately and effectively implemented. 9. By an Order dated 7 October 1993, the Vice-President of the Court, at the request of Bosnia and Herzegovina, extended the time-limit for the filing of the Memorial to 15 April 1994 and accordingly extended the time-limit for the filing of the Counter-Memorial to 15 April 1995. Bosnia and Herzegovina filed its Memorial within the time-limit thus extended. By a letter dated 9 May 1994, the Agent of the FRY submitted that the Memorial filed by Bosnia and Herzegovina failed to meet the requirements of Article 43 of the Statute and Articles 50 and 51 of the Rules of Court. By letter of 30 June 1994, the Registrar, acting on the instructions of the Court, requested Bosnia and Herzegovina, pursuant to Article 50, paragraph 2, of the Rules of Court, to file as annexes to its Memorial the extracts of the documents to which it referred therein. Bosnia and Herzegovina accordingly filed Additional Annexes to its Memorial on 4 January 1995. 10. By an Order dated 21 March 1995, the President of the Court, at the request of the FRY, extended the time-limit for the filing of the Counter-Memorial to 30 June 1995. Within the time-limit thus extended, the FRY, referring to Article 79, paragraph 1, of the Rules of Court of 14 April 1978, raised preliminary objections concerning the Court’s jurisdiction to entertain the case and to the admissibility of the Application. Accordingly, by an Order of 14 July 1995, the President of the Court noted that, by virtue of Article 79, paragraph 3, of the 1978 Rules of Court, the proceedings on the merits were suspended, and fixed 14 November 1995 as the time-limit within which Bosnia and Herzegovina might present a written statement of its observations and submissions on the preliminary objections raised by the FRY. Bosnia and Herzegovina filed such a statement within the time-limit thus fixed. 11. By a letter dated 2 February 1996, the Agent of the FRY submitted to the Court the text of the General Framework Agreement for Peace in Bosnia and Herzegovina and the annexes thereto, initialled in Dayton, Ohio, on 21 November 1995, and signed in Paris on 14 December 1995 (hereinafter the “Dayton Agreement”). 12. Public hearings were held on preliminary objections between 29 April and 3 May 1996. By a Judgment of 11 July 1996, the Court dismissed the preliminary objections and found that it had jurisdiction to adjudicate on the dispute on the basis of Article IX of the Genocide Convention and that the Application was admissible. 13. By an Order dated 23 July 1996, the President fixed 23 July 1997 as the time-limit for the filing of the Counter-Memorial of the FRY. The Counter-Memorial, which was filed on 22 July 1997, contained counter-claims. By a letter dated 28 July 1997, Bosnia and Herzegovina, invoking Article 80 of the 1978 Rules of Court, challenged the admissibility of the counter-claims. On 22 September 1997, at a meeting held between the President of the Court and the Agents of the Parties, the Agents accepted that their respective Governments submit written observations on the question of the admissibility of the counter-claims. Bosnia and Herzegovina and the FRY submitted their observations to the Court on 10 October 1997 and 24 October 1997, respectively. By an Order dated 17 December 1997, the Court found that the counter-claims submitted by the FRY were admissible as such and formed part of the current proceedings since they fulfilled the conditions set out in Article 80, paragraphs 1 and 2, of the 1978 Rules of Court. The Court further directed Bosnia and Herzegovina to submit a Reply and the FRY to submit a Rejoinder relating to the claims of both Parties and fixed 23 January 1998 and 23 July 1998 as the respective time-limits for the filing of those pleadings. The Court also reserved the right of Bosnia and Herzegovina to present its views on the counter-claims of the FRY in an additional pleading. 14. By an Order dated 22 January 1998, the President, at the request of Bosnia and Herzegovina, extended the time-limit for the filing of the Reply of Bosnia and Herzegovina to 23 April 1998 and accordingly extended the time-limit for the filing of the Rejoinder of the FRY to 22 January 1999. 15. On 15 April 1998, the Co-Agent of the FRY filed “Additional Annexes to the Counter-Memorial of the Federal Republic of Yugoslavia”. By a letter dated 14 May 1998, the Deputy Agent of Bosnia and Herzegovina, referring to Articles 50 and 52 of the Rules of Court, objected to the admissibility of these documents in view of their late filing. On 22 September 1998, the Parties were informed that the Court had decided that the documents in question “[were] admissible as Annexes to the Counter-Memorial to the extent that they were established, in the original language, on or before the date fixed by the Order of 23 July 1996 for the filing of the Counter-Memorial” and that “[a]ny such document established after that date [would] have to be submitted as an Annex to the Rejoinder, if Yugoslavia so wishe[d]”. 16. On 23 April 1998, within the time-limit thus extended, Bosnia and Herzegovina filed its Reply. By a letter dated 27 November 1998, the FRY requested the Court to extend the time-limit for the filing of its Rejoinder to 22 April 1999. By a letter dated 9 December 1998, Bosnia and Herzegovina objected to any extension of the time-limit fixed for the filing of the Rejoinder. By an Order of 11 December 1998, the Court, having regard to the fact that Bosnia and Herzegovina had been granted an extension of the time-limit for the filing of its Reply, extended the time-limit for the filing of the Rejoinder of the FRY to 22 February 1999. The FRY filed its Rejoinder within the time-limit thus extended. 17. On 19 April 1999, the President of the Court held a meeting with the representatives of the Parties in order to ascertain their views with regard to questions of procedure. Bosnia and Herzegovina indicated that it did not intend to file an additional pleading concerning the counter-claims made by the FRY and considered the case ready for oral proceedings. The Parties also expressed their views about the organization of the oral proceedings. 18. By a letter dated 9 June 1999, the then Chairman of the Presidency of Bosnia and Herzegovina, Mr. Zivko Radisić, informed the Court of the appointment of a Co-Agent, Mr. Svetozar Miletić. By a letter dated 10 June 1999, the thus appointed Co-Agent informed the Court that Bosnia and Herzegovina wished to discontinue the case. By a letter of 14 June 1999, the Agent of Bosnia and Herzegovina asserted that the Presidency of Bosnia and Herzegovina had taken no action to appoint a Co-Agent or to terminate the proceedings before the Court. By a letter of 15 June 1999, the Agent of the FRY stated that his Government accepted the discontinuance of the proceedings. By a letter of 21 June 1999, the Agent of Bosnia and Herzegovina reiterated that the Presidency had not made any decision to discontinue the proceedings and transmitted to the Court letters from two members of the Presidency, including the new Chairman of the Presidency, confirming that no such decision had been made. 19. By letters dated 30 June 1999 and 2 September 1999, the President of the Court requested the Chairman of the Presidency to clarify the position of Bosnia and Herzegovina regarding the pendency of the case. By a letter dated 3 September 1999, the Agent of the FRY submitted certain observations on this matter, concluding that there was an agreement between the Parties to discontinue the case. By a letter dated 15 September 1999, the Chairman of the Presidency of Bosnia and Herzegovina informed the Court that at its 58th session held on 8 September 1999, the Presidency had concluded that: (i) the Presidency “did not make a decision to discontinue legal proceedings before the International Court of Justice”; (ii) the Presidency “did not make a decision to name a Co-Agent in this case”; (iii) the Presidency would “inform [the Court] timely about any further decisions concerning this case”. 20. By a letter of 20 September 1999, the President of the Court informed the Parties that the Court intended to schedule hearings in the case beginning in the latter part of February 2000 and requested the Chairman of the Presidency of Bosnia and Herzegovina to confirm that Bosnia and Herzegovina’s position was that the case should so proceed. By a letter of 4 October 1999, the Agent of Bosnia and Herzegovina confirmed that the position of his Government was that the case should proceed and he requested the Court to set a date for the beginning of the oral proceedings as soon as possible. By a letter dated 10 October 1999, the member of the Presidency of Bosnia and Herzegovina from the Republika Srpska informed the Court that the letter of 15 September 1999 from the Chairman of the Presidency was “without legal effects” inter alia because the National Assembly of the Republika Srpska, acting pursuant to the Constitution of Bosnia and Herzegovina, had declared the decision of 15 September “destructive of a vital interest” of the Republika Srpska. On 22 October 1999, the President informed the Parties that, having regard to the correspondence received on this matter, the Court had decided not to hold hearings in the case in February 2000. 21. By a letter dated 23 March 2000 transmitting to the Court a letter dated 20 March 2000 from the Chairman of the Presidency, the Agent of Bosnia and Herzegovina reaffirmed that the appointment of a Co-Agent by the former Chairman of the Presidency of Bosnia and Herzegovina on 9 June 1999 lacked any legal basis and that the communications of the Co-Agent did not reflect the position of Bosnia and Herzegovina. Further, the Agent asserted that, contrary to the claims of the member of the Presidency of Bosnia and Herzegovina from the Republic of Srpska, the letter of 15 September 1999 was not subject to the veto mechanism contained in the Constitution of Bosnia and Herzegovina. The Agent requested the Court to set a date for oral proceedings at its earliest convenience. 22. By a letter dated 13 April 2000, the Agent of the FRY transmitted to the Court a document entitled “Application for the Interpretation of the Decision of the Court on the Pendency of the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia)”, requesting an interpretation of the decision of the Court to which the President of the Court had referred in his letter dated 22 October 1999. By a letter dated 18 April 2000, the Registrar informed the Agent of the FRY that, according to Article 60 of the Statute, a request for interpretation could relate only to a judgment of the Court and therefore the document transmitted to the Court on 13 April 2000 could not constitute a request for interpretation and had not been entered on the Court’s General List. The Registrar further explained that the sole decision to which reference was made in the letter of 22 October 1999 was that no hearings would be held in February 2000. The Registrar requested the Agent to transmit as soon as possible any comments he might have on the letter dated 23 March 2000 from the Agent of Bosnia and Herzegovina and the letter from the Chairman of the Presidency enclosed therewith. By a letter dated 25 April 2000, the Agent of the FRY submitted such comments to the Court and requested that the Court record and implement the agreement for the discontinuance of the case evidenced by the exchange of the letter of the Co-Agent of the Applicant dated 10 June 1999 and the letter of the Agent of the FRY dated 15 June 1999. By a letter dated 8 May 2000, the Agent of Bosnia and Herzegovina submitted certain observations regarding the letter dated 25 April 2000 from the Agent of the FRY and reiterated the wish of his Government to continue with the proceedings in the case. By letters dated 8 June, 26 June and 4 October 2000 from the FRY and letters dated 9 June and 21 September 2000 from Bosnia and Herzegovina, the Agents of the Parties restated their positions. 23. By a letter dated 29 September 2000, Mr. Svetozar Miletić, who had purportedly been appointed Co-Agent on 9 June 1999 by the then Chairman of the Presidency of Bosnia and Herzegovina, reiterated his position that the case had been discontinued. By a letter dated 6 October 2000, the Agent of Bosnia and Herzegovina stated that this letter and the recent communication from the Agent of the FRY had not altered the commitment of the Government of Bosnia and Herzegovina to continue the proceedings. 24. By letters dated 16 October 2000 from the President of the Court and from the Registrar, the Parties were informed that, at its meeting of 10 October 2000, the Court, having examined all the correspondence received on this question, had found that Bosnia and Herzegovina had not demonstrated its will to withdraw the Application in an unequivocal manner. The Court had thus concluded that there had been no discontinuance of the case by Bosnia and Herzegovina. Consequently, in accordance with Article 54 of the Rules, the Court, after having consulted the Parties, would, at an appropriate time, fix a date for the opening of the oral proceedings. 25. By a letter dated 18 January 2001, the Minister for Foreign Affairs of the FRY requested the Court to grant a stay of the proceedings or alternatively to postpone the opening of the oral proceedings for a period of 12 months due, inter alia, to the change of Government of the FRY and the resulting fundamental change in the policies and international position of that State. By a letter dated 25 January 2001, the Agent of Bosnia and Herzegovina communicated the views of his Government on the request made by the FRY and reserved his Government’s final judgment on the matter, indicating that, in the intervening period, Bosnia and Herzegovina’s position continued to be that there should be an expedited resolution of the case. 26. By a letter dated 20 April 2001, the Agent of the FRY informed the Court that his Government wished to withdraw the counter-claims submitted by the FRY in its Counter-Memorial. The Agent also informed the Court that his Government was of the opinion that the Court did not have jurisdiction ratione personae over the FRY and further that the FRY intended to submit an application for revision of the Judgment of 11 July 1996. On 24 April 2001, the FRY filed in the Registry of the Court an Application instituting proceedings whereby, referring to Article 61 of the Statute, it requested the Court to revise the Judgment delivered on Preliminary Objections on 11 July 1996 (Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), hereinafter referred to as “the Application for Revision case”). In the present case the Agent of the FRY submitted, under cover of a letter dated 4 May 2001, a document entitled “Initiative to the Court to Reconsider ex officio Jurisdiction over Yugoslavia”, accompanied by one volume of annexes (hereinafter “the Initiative”). The Agent informed the Court that the Initiative was based on facts and arguments which were essentially identical to those submitted in the FRY’s Application for revision of the Judgment of 11 July 1996 since his Government believed that these were both appropriate procedural avenues. In the Initiative, the FRY requested the Court to adjudge and declare that it had no jurisdiction ratione personae over the FRY, contending that it had not been a party to the Statute of the Court until its admission to the United Nations on 1 November 2000, that it had not been and still was not a party to the Genocide Convention; it added moreover that its notification of accession to that Convention dated 8 March 2001 contained a reservation to Article IX thereof. The FRY asked the Court to suspend the proceedings on the merits until a decision was rendered on the Initiative. 27. By a letter dated 12 July 2001 and received in the Registry on 15 August 2001, Bosnia and Herzegovina informed the Court that it had no objection to the withdrawal of the counter-claims by the FRY and stated that it intended to submit observations regarding the Initiative. By an Order dated 10 September 2001, the President of the Court placed on record the withdrawal by the FRY of the counter-claims submitted in its Counter-Memorial. 28. By a letter dated 3 December 2001, Bosnia and Herzegovina provided the Court with its views regarding the Initiative and transmitted a memorandum on “differences between the Application for Revision of 23 April 2001 and the ‘Initiative’ of 4 May 2001” as well as a copy of the written observations and annexes filed by Bosnia and Herzegovina on 3 December 2001 in the Application for Revision case. In that letter, Bosnia and Herzegovina submitted that “there [was] no basis in fact nor in law to honour this so-called ‘Initiative’” and requested the Court inter alia to “respond in the negative to the request embodied in the ‘Initiative’”. 29. By a letter dated 22 February 2002 to the President of the Court, Judge ad hoc Lauterpacht resigned from the case. 30. Under cover of a letter of 18 April 2002, the Registrar, referring to Article 34, paragraph 3, of the Statute, transmitted copies of the written proceedings to the Secretary-General of the United Nations. 31. In its Judgment of 3 February 2003 in the Application for Revision case, the Court found that the FRY’s Application for revision, under Article 61 of the Statute of the Court, of the Judgment of 11 July 1996 on preliminary objections was inadmissible. 32. By a letter dated 5 February 2003, the FRY informed the Court that, following the adoption and promulgation of the Constitutional Charter of Serbia and Montenegro by the Assembly of the FRY on 4 February 2003, the name of the State had been changed from the “Federal Republic of Yugoslavia” to “Serbia and Montenegro”. The title of the case was duly changed and the name “Serbia and Montenegro” was used thereafter for all official purposes of the Court. 33. By a letter of 17 February 2003, Bosnia and Herzegovina reaffirmed its position with respect to the Initiative, as stated in the letter of 3 December 2001, and expressed its desire to proceed with the case. By a letter dated 8 April 2003, Serbia and Montenegro submitted that, due to major new developments since the filing of the last written pleading, additional written pleadings were necessary in order to make the oral proceedings more effective and less time-consuming. On 24 April 2003, the President of the Court held a meeting with the Agents of the Parties to discuss questions of procedure. Serbia and Montenegro stated that it maintained its request for the Court to rule on its Initiative while Bosnia and Herzegovina considered that there was no need for additional written pleadings. The possible dates and duration of the oral proceedings were also discussed. 34. By a letter dated 25 April 2003, Bosnia and Herzegovina chose Mr. Ahmed Mahiou to sit as judge ad hoc in the case. 35. By a letter of 12 June 2003, the Registrar informed Serbia and Montenegro that the Court could not accede to its request that the proceedings be suspended until a decision was rendered on the jurisdictional issues raised in the Initiative; however, should it wish to do so, Serbia and Montenegro would be free to present further argument on jurisdictional questions during the oral proceedings on the merits. In further letters of the same date, the Parties were informed that the Court, having considered Serbia and Montenegro’s request, had decided not to authorize the filing of further written pleadings in the case. 36. In an exchange of letters in October and November 2003, the Agents of the Parties made submissions as to the scheduling of the oral proceedings. 37. Following a further exchange of letters between the Parties in March and April 2004, the President held a meeting with the Agents of the Parties on 25 June 2004, at which the Parties presented their views on, inter alia, the scheduling of the hearings and the calling of witnesses and experts. 38. By letters dated 26 October 2004, the Parties were informed that, after examining the list of cases before it ready for hearing and considering all the relevant circumstances, the Court had decided to fix Monday 27 February 2006 for the opening of the oral proceedings in the case. 39. On 14 March 2005, the President met with the Agents of the Parties in order to ascertain their views with regard to the organization of the oral proceedings. At this meeting, both Parties indicated that they intended to call witnesses and experts. 40. By letters dated 19 March 2005, the Registrar, referring to Articles 57 and 58 of the Rules of Court, requested the Parties to provide, by 9 September 2005, details of the witnesses, experts and witness-experts whom they intended to call and indications of the specific point or points to which the evidence of the witness, expert or witness-expert would be directed. By a letter of 8 September 2005, the Agent of Serbia and Montenegro transmitted to the Court a list of eight witnesses and two witness-experts whom his Government wished to call during the oral proceedings. By a further letter of the same date, the Agent of Serbia and Montenegro communicated a list of five witnesses whose attendance his Government requested the Court to arrange pursuant to Article 62, paragraph 2, of the Rules of Court. By a letter dated 9 September 2005, Bosnia and Herzegovina transmitted to the Court a list of three experts whom it wished to call at the hearings. 41. By a letter dated 5 October 2005, the Deputy Agent of Bosnia and Herzegovina informed the Registry of Bosnia and Herzegovina’s views with regard to the time that it considered necessary for the hearing of the experts it wished to call and made certain submissions, inter alia, with respect to the request made by Serbia and Montenegro pursuant to Article 62, paragraph 2, of the Rules of Court. By letters of 4 and 11 October 2005, the Agent and the Co-Agent of Serbia and Montenegro, respectively, informed the Registry of the views of their Government with respect to the time necessary for the hearing of the witnesses and witness-experts whom it wished to call. 42. By letters of 15 November 2005, the Registrar informed the Parties, inter alia, that the Court had decided that it would hear the three experts and ten witnesses and witness-experts that Bosnia and Herzegovina and Serbia and Montenegro respectively wished to call and, moreover, that it had decided not to arrange for the attendance, pursuant to Article 62, paragraph 2, of the Rules of Court, of the five witnesses proposed by Serbia and Montenegro. However, the Court reserved the right to exercise subsequently, if necessary, its powers under that provision to call persons of its choosing on its own initiative. The Registrar also requested the Parties to provide certain information related to the hearing of the witnesses, experts and witness-experts including, inter alia, the language in which each witness, expert or witness-expert would speak and, in respect of those speaking in a language other than English or French, the arrangements which the Party intended to make, pursuant to Article 70, paragraph 2, of the Rules of Court, for interpretation into one of the official languages of the Court. Finally the Registrar transmitted to the Parties the calendar for the oral proceedings as adopted by the Court. 43. By a letter dated 12 December 2005, the Agent of Serbia and Montenegro informed the Court, inter alia, that eight of the ten witnesses and witness-experts it wished to call would speak in Serbian and outlined the arrangements that Serbia and Montenegro would make for interpretation from Serbian to one of the official languages of the Court. By a letter dated 15 December 2005, the Deputy Agent of Bosnia and Herzegovina informed the Court, inter alia, that the three experts called by Bosnia and Herzegovina would speak in one of the official languages of the Court. 44. By a letter dated 28 December 2005, the Deputy Agent of Bosnia and Herzegovina, on behalf of the Government, requested that the Court call upon Serbia and Montenegro, under Article 49 of the Statute and Article 62, paragraph 1, of the Rules of Court, to produce a certain number of documents. By a letter dated 16 January 2006, the Agent of Serbia and Montenegro informed the Court of his Government’s views on this request. By a letter dated 19 January 2006, the Registrar, acting on the instructions of the Court, asked Bosnia and Herzegovina to provide certain further information relating to its request under Article 49 of the Statute and Article 62, paragraph 2, of the Rules of Court. By letters dated 19 and 24 January 2006, the Deputy Agent of Bosnia and Herzegovina submitted additional information and informed the Court that Bosnia and Herzegovina had decided, for the time being, to restrict its request to the redacted sections of certain documents. By a letter dated 31 January 2006, the Co-Agent of Serbia and Montenegro communicated his Government’s views regarding this modified request. By letters dated 2 February 2006, the Registrar informed the Parties that the Court had decided, at this stage of the proceedings, not to call upon Serbia and Montenegro to produce the documents in question. However, the Court reserved the right to exercise subsequently, if necessary, its powers under Article 49 of the Statute and Article 62, paragraph 1, of the Rules of Court, to request, proprio motu, the production by Serbia and Montenegro of the documents in question. 45. By a letter dated 16 January 2006, the Deputy Agent of Bosnia and Herzegovina transmitted to the Registry copies of new documents that Bosnia and Herzegovina wished to produce pursuant to Article 56 of the Rules of Court. Under cover of the same letter and of a letter dated 23 January 2006, the Deputy Agent of Bosnia and Herzegovina also transmitted to the Registry copies of video material, extracts of which Bosnia and Herzegovina intended to present at the oral proceedings. By a letter dated 31 January 2006, the Co-Agent of Serbia and Montenegro informed the Court that his Government did not object to the production of the new documents by Bosnia and Herzegovina. Nor did it object to the video material being shown at the oral proceedings. By letters of 2 February 2006, the Registrar informed the Parties that, in view of the fact that no objections had been raised by Serbia and Montenegro, the Court had decided to authorize the production of the new documents by Bosnia and Herzegovina pursuant to Article 56 of the Rules of Court and that it had further decided that Bosnia and Herzegovina could show extracts of the video material at the hearings. 46. Under cover of a letter dated 18 January 2006 and received on 20 January 2006, the Agent of Serbia and Montenegro provided the Registry with copies of new documents which his Government wished to produce pursuant to Article 56 of the Rules of Court. By a letter of 1 February 2006, the Deputy Agent of Bosnia and Herzegovina informed the Court that Bosnia and Herzegovina did not object to the production of the said documents by Serbia and Montenegro. By a letter dated 2 February 2006, the Registrar informed the Parties that, in view of the fact that no objection had been raised by Bosnia and Herzegovina, the Court had decided to authorize the production of the new documents by Serbia and Montenegro. By a letter dated 9 February 2006, the Co-Agent of Serbia and Montenegro transmitted to the Court certain missing elements of the new documents submitted on 20 January 2006 and made a number of observations concerning the new documents produced by Bosnia and Herzegovina. By a letter dated 20 February 2006, the Deputy Agent of Bosnia and Herzegovina informed the Court that Bosnia and Herzegovina did not intend to make any observations regarding the new documents produced by Serbia and Montenegro. 47. Under cover of a letter dated 31 January 2006, the Co-Agent of Serbia and Montenegro transmitted to the Court a list of public documents that his Government would refer to in its first round of oral argument. By a further letter dated 14 February 2006, the Co-Agent of Serbia and Montenegro transmitted to the Court copies of folders containing the public documents referred to in the list submitted on 31 January 2006 and informed the Court that Serbia and Montenegro had decided not to submit the video materials included in that list. By a letter dated 20 February 2006, the Deputy Agent of Bosnia and Herzegovina informed the Court that Bosnia and Herzegovina had no observations to make regarding the list of public documents submitted by Serbia and Montenegro on 31 January 2006. He also stated that Bosnia and Herzegovina would refer to similar sources during its pleadings and was planning to provide the Court and the Respondent, at the end of the first round of its oral argument, with a CD-ROM containing materials it had quoted (see below, paragraph 54). 48. By a letter dated 26 January 2006, the Registrar informed the Parties of certain decisions taken by the Court with regard to the hearing of the witnesses, experts and witness-experts called by the Parties including, inter alia, that, exceptionally, the verbatim records of the sittings at which the witnesses, experts and witness-experts were heard would not be made available to the public or posted on the website of the Court until the end of the oral proceedings. 49. By a letter dated 13 February 2006, the Agent of Serbia and Montenegro informed the Court that his Government had decided not to call two of the witnesses and witness-experts included in the list transmitted to the Court on 8 September 2005 and that the order in which the remaining witnesses and witness-expert would be heard had been modified. By a letter dated 21 February 2006, the Agent of Serbia and Montenegro requested the Court’s permission for the examination of three of the witnesses called by his Government to be conducted in Serbian (namely, Mr. Dušan Mihajlović, Mr. Vladimir Milićević, Mr. Dragoljub Mićunović). By a letter dated 22 February 2006, the Registrar informed the Agent of Serbia and Montenegro that there was no objection to such a procedure being followed, pursuant to the provisions of Article 39, paragraph 3, of the Statute and Article 70 of the Rules of Court. 50. Pursuant to Article 53, paragraph 2, of the Rules, the Court, after ascertaining the views of the Parties, decided that copies of the pleadings and documents annexed would be made available to the public at the opening of the oral proceedings. 51. Public sittings were held from 27 February to 9 May 2006, at which the Court heard the oral arguments and replies of: For Bosnia and Herzegovina: Mr. Sakib Softić, Mr. Phon van den Biesen, Mr. Alain Pellet, Mr. Thomas M. Franck, Ms Brigitte Stern, Mr. Luigi Condorelli, Ms Magda Karagiannakis, Ms Joanna Korner, Ms Laura Dauban, Mr. Antoine Ollivier, Mr. Morten Torkildsen. For Serbia and Montenegro: H.E. Mr. Radoslav Stojanović, Mr. Saša Obradović, Mr. Vladimir Cvetković, Mr. Tibor Varady, Mr. Ian Brownlie, Mr. Xavier de Roux, Ms Nataša Fauveau-Ivanović, Mr. Andreas Zimmerman, Mr. Vladimir Djerić, Mr. Igor Olujić. 52. On 1 March 2006, the Registrar, on the instructions of the Court, requested Bosnia and Herzegovina to specify the precise origin of each of the extracts of video material and of the graphics, charts and photographs shown or to be shown at the oral proceedings. On 2 March 2006 Bosnia and Herzegovina provided the Court with certain information regarding the extracts of video material shown at the sitting on 1 March 2006 and those to be shown at the sittings on 2 March 2006 including the source of such video material. Under cover of a letter dated 5 March 2006, the Agent of Bosnia and Herzegovina transmitted to the Court a list detailing the origin of the extracts of video material, graphics, charts and photographs shown or to be shown by it during its first round of oral argument, as well as transcripts, in English and in French, of the above-mentioned extracts of video material. 53. By a letter dated 5 March 2006, the Agent of Bosnia and Herzegovina informed the Court that it wished to withdraw one of the experts it had intended to call. In that letter, the Agent of Bosnia and Herzegovina also asked the Court to request each of the Parties to provide a one-page outline per witness, expert or witness-expert detailing the topics which would be covered in his evidence or statement. By letters dated 7 March 2006, the Parties were informed that the Court requested them to provide, at least three days before the hearing of each witness, expert or witness-expert, a one-page summary of the latter’s evidence or statement. 54. On 7 March 2006, Bosnia and Herzegovina provided the Court and the Respondent with a CD-ROM containing “ICTY Public Exhibits and other Documents cited by Bosnia and Herzegovina during its Oral Pleadings (07/03/2006)”. By a letter dated 10 March 2006, Serbia and Montenegro informed the Court that it objected to the production of the CD-ROM on the grounds that the submission at such a late stage of so many documents “raise[d] serious concerns related to the respect for the Rules of Court and the principles of fairness and equality of the parties”. It also pointed out that the documents included on the CD-ROM “appear[ed] questionable from the point of [view of] Article 56, paragraph 4, of the Rules [of Court]”. By a letter dated 13 March 2006, the Agent of Bosnia and Herzegovina informed the Court of his Government’s views regarding the above-mentioned objections raised by Serbia and Montenegro. In that letter, the Agent submitted, inter alia, that all the documents on the CD-ROM had been referred to by Bosnia and Herzegovina in its oral argument and were documents which were in the public domain and were readily available within the terms of Article 56, paragraph 4, of the Rules of Court. The Agent added that Bosnia and Herzegovina was prepared to withdraw the CD-ROM if the Court found it advisable. By a letter of 14 March 2006, the Registrar informed Bosnia and Herzegovina that, given that Article 56, paragraph 4, of the Rules of Court did not require or authorize the submission to the Court of the full text of a document to which reference was made during the oral proceedings pursuant to that provision and since it was difficult for the other Party and the Court to come to terms, at the late stage of the proceedings, with such an immense mass of documents, which in any case were in the public domain and could thus be consulted if necessary, the Court had decided that it was in the interests of the good administration of justice that the CD-ROM be withdrawn. By a letter dated 16 March 2006, the Agent of Bosnia and Herzegovina withdrew the CD-ROM which it had submitted on 7 March 2006. 55. On 17 March 2006, Bosnia and Herzegovina submitted a map for use during the statement to be made by one of its experts on the morning of 20 March 2006. On 20 March 2006, Bosnia and Herzegovina produced a folder of further documents to be used in the examination of that expert. Serbia and Montenegro objected strongly to the production of the documents at such a late stage since its counsel would not have time to prepare for cross-examination. On 20 March 2006, the Court decided that the map submitted on 17 March 2006 could not be used during the statement of the expert. Moreover, having consulted both Parties, the Court decided to cancel the morning sitting and instead hear the expert during an afternoon sitting in order to allow Serbia and Montenegro to be ready for cross-examination. 56. On 20 March 2006, Serbia and Montenegro informed the Court that one of the witnesses it had intended to call finally would not be giving evidence. 57. The following experts were called by Bosnia and Herzegovina and made their statements at public sittings on 17 and 20 March 2006: Mr. András J. Riedlmayer and General Sir Richard Dannatt. The experts were examined by counsel for Bosnia and Herzegovina and cross-examined by counsel for Serbia and Montenegro. The experts were subsequently re-examined by counsel for Bosnia and Herzegovina. Questions were put to Mr. Riedlmayer by Judges Kreća, Tomka, Simma and the Vice-President and replies were given orally. Questions were put to General Dannatt by the President, Judge Koroma and Judge Tomka and replies were given orally. 58. The following witnesses and witness-expert were called by Serbia and Montenegro and gave evidence at public sittings on 23, 24, 27 and 28 March 2006: Mr. Vladimir Lukić; Mr. Vitomir Popović; General Sir Michael Rose; Mr. Jean-Paul Sardon (witness-expert); Mr. Dušan Mihajlović; Mr. Vladimir Milićević; Mr. Dragoljub Mićunović. The witnesses and witness-expert were examined by counsel for Serbia and Montenegro and cross-examined by counsel for Bosnia and Herzegovina. General Rose, Mr. Mihajlović and Mr. Milićević were subsequently re-examined by counsel for Serbia and Montenegro. Questions were put to Mr. Lukić by Judges Ranjeva, Simma, Tomka and Bennouna and replies were given orally. Questions were put to General Rose by the Vice-President and Judges Owada and Simma and replies were given orally. 59. With the exception of General Rose and Mr. Jean-Paul Sardon, the above-mentioned witnesses called by Serbia and Montenegro gave their evidence in Serbian and, in accordance with Article 39, paragraph 3, of the Statute and Article 70, paragraph 2, of the Rules of Court, Serbia and Montenegro made the necessary arrangements for interpretation into one of the official languages of the Court and the Registry verified this interpretation. Mr. Stojanović conducted his examination of Mr. Dragoljub Mićunović in Serbian in accordance with the exchange of correspondence between Serbia and Montenegro and the Court on 21 and 22 February 2006 (see paragraph 49 above). 60. In the course of the hearings, questions were put by Members of the Court, to which replies were given orally and in writing, pursuant to Article 61, paragraph 4, of the Rules of Court. 61. By a letter of 8 May 2006, the Agent of Bosnia and Herzegovina requested the Court to allow the Deputy Agent to take the floor briefly on 9 May 2006, in order to correct an assertion about one of the counsel of and one of the experts called by Bosnia and Herzegovina which had been made by Serbia and Montenegro in its oral argument. By a letter dated 9 May 2006, the Agent of Serbia and Montenegro communicated the views of his Government on that matter. On 9 May 2006, the Court decided, in the particular circumstances of the case, to authorize the Deputy Agent of Bosnia and Herzegovina to make a very brief statement regarding the assertion made about its counsel. 62. By a letter dated 3 May 2006, the Agent of Bosnia and Herzegovina informed the Court that there had been a number of errors in references included in its oral argument presented on 2 March 2006 and provided the Court with the corrected references. By a letter dated 8 May 2006, the Agent of Serbia and Montenegro, “in light of the belated corrections by the Applicant, and for the sake of the equality between the parties”, requested the Court to accept a paragraph of its draft oral argument of 2 May 2006 which responded to one of the corrections made by Bosnia and Herzegovina but had been left out of the final version of its oral argument “in order to fit the schedule of [Serbia and Montenegro’s] presentations”. By a letter dated 7 June 2006, the Parties were informed that the Court had taken due note of both the explanation given by the Agent of Bosnia and Herzegovina and the observations made in response by the Agent of Serbia and Montenegro. 63. In January 2007, Judge Parra-Aranguren, who had attended the oral proceedings in the case, and had participated in part of the deliberation, but had for medical reasons been prevented from participating in the later stages thereof, informed the President of the Court, pursuant to Article 24, paragraph 1, of the Statute, that he considered that he should not take part in the decision of the case. The President took the view that the Court should respect and accept Judge Parra-Aranguren’s position, and so informed the Court. 64. In its Application, the following requests were made by Bosnia and Herzegovina: “Accordingly, while reserving the right to revise, supplement or amend this Application, and subject to the presentation to the Court of the relevant evidence and legal arguments, Bosnia and Herzegovina requests the Court to adjudge and declare as follows: (a) that Yugoslavia (Serbia and Montenegro) has breached, and is continuing to breach, its legal obligations toward the People and State of Bosnia and Herzegovina under Articles I, II (a), II (b), II (c), II (d), III (a), III (b), III (c), III (d), III (e), IV and V of the Genocide Convention; (b) that Yugoslavia (Serbia and Montenegro) has violated and is continuing to violate its legal obligations toward the People and State of Bosnia and Herzegovina under the four Geneva Conventions of 1949, their Additional Protocol I of 1977, the customary international laws of war including the Hague Regulations on Land Warfare of 1907, and other fundamental principles of international humanitarian law; (c) that Yugoslavia (Serbia and Montenegro) has violated and continues to violate Articles 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26 and 28 of the Universal Declaration of Human Rights with respect to the citizens of Bosnia and Herzegovina; (d) that Yugoslavia (Serbia and Montenegro), in breach of its obligations under general and customary international law, has killed, murdered, wounded, raped, robbed, tortured, kidnapped, illegally detained, and exterminated the citizens of Bosnia and Herzegovina, and is continuing to do so; (e) that in its treatment of the citizens of Bosnia and Herzegovina, Yugoslavia (Serbia and Montenegro) has violated, and is continuing to violate, its solemn obligations under Articles 1 (3), 55 and 56 of the United Nations Charter; (f) that Yugoslavia (Serbia and Montenegro) has used and is continuing to use force and the threat of force against Bosnia and Herzegovina in violation of Articles 2 (1), 2 (2), 2 (3), 2 (4) and 33 (1), of the United Nations Charter; (g) that Yugoslavia (Serbia and Montenegro), in breach of its obligations under general and customary international law, has used and is using force and the threat of force against Bosnia and Herzegovina; (h) that Yugoslavia (Serbia and Montenegro), in breach of its obligations under general and customary international law, has violated and is violating the sovereignty of Bosnia and Herzegovina by: ⎯ armed attacks against Bosnia and Herzegovina by air and land; ⎯ aerial trespass into Bosnian airspace; ⎯ efforts by direct and indirect means to coerce and intimidate the Government of Bosnia and Herzegovina; (i) that Yugoslavia (Serbia and Montenegro), in breach of its obligations under general and customary international law, has intervened and is intervening in the internal affairs of Bosnia and Herzegovina; (j) that Yugoslavia (Serbia and Montenegro), in recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Bosnia and Herzegovina by means of its agents and surrogates, has violated and is violating its express charter and treaty obligations to Bosnia and Herzegovina and, in particular, its charter and treaty obligations under Article 2 (4), of the United Nations Charter, as well as its obligations under general and customary international law; (k) that under the circumstances set forth above, Bosnia and Herzegovina has the sovereign right to defend Itself and its People under United Nations Charter Article 51 and customary international law, including by means of immediately obtaining military weapons, equipment, supplies and troops from other States; (l) that under the circumstances set forth above, Bosnia and Herzegovina has the sovereign right under United Nations Charter Article 51 and customary international law to request the immediate assistance of any State to come to its defence, including by military means (weapons, equipment, supplies, troops, etc.); (m) that Security Council resolution 713 (1991), imposing a weapons embargo upon the former Yugoslavia, must be construed in a manner that shall not impair the inherent right of individual or collective self-defence of Bosnia and Herzegovina under the terms of United Nations Charter Article 51 and the rules of customary international law; (n) that all subsequent Security Council resolutions that refer to or reaffirm resolution 713 (1991) must be construed in a manner that shall not impair the inherent right of individual or collective self-defence of Bosnia and Herzegovina under the terms of United Nations Charter Article 51 and the rules of customary international law; (o) that Security Council resolution 713 (1991) and all subsequent Security Council resolutions referring thereto or reaffirming thereof must not be construed to impose an arms embargo upon Bosnia and Herzegovina, as required by Articles 24 (1) and 51 of the United Nations Charter and in accordance with the customary doctrine of ultra vires; (p) that pursuant to the right of collective self-defence recognized by United Nations Charter Article 51, all other States parties to the Charter have the right to come to the immediate defence of Bosnia and Herzegovina ⎯ at its request ⎯ including by means of immediately providing It with weapons, military equipment and supplies, and armed forces (soldiers, sailors, air-people, etc.); (q) that Yugoslavia (Serbia and Montenegro) and its agents and surrogates are under an obligation to cease and desist immediately from its breaches of the foregoing legal obligations, and is under a particular duty to cease and desist immediately: ⎯ from its systematic practice of so-called ‘ethnic cleansing’ of the citizens and sovereign territory of Bosnia and Herzegovina; ⎯ from the murder, summary execution, torture, rape, kidnapping, mayhem, wounding, physical and mental abuse, and detention of the citizens of Bosnia and Herzegovina; ⎯ from the wanton devastation of villages, towns, districts, cities, and religious institutions in Bosnia and Herzegovina; ⎯ from the bombardment of civilian population centres in Bosnia and Herzegovina, and especially its capital, Sarajevo; ⎯ from continuing the siege of any civilian population centres in Bosnia and Herzegovina, and especially its capital, Sarajevo; ⎯ from the starvation of the civilian population in Bosnia and Herzegovina; ⎯ from the interruption of, interference with, or harassment of humanitarian relief supplies to the citizens of Bosnia and Herzegovina by the international community; ⎯ from all use of force ⎯ whether direct or indirect, overt or covert ⎯ against Bosnia and Herzegovina, and from all threats of force against Bosnia and Herzegovina; ⎯ from all violations of the sovereignty, territorial integrity or political independence of Bosnia and Herzegovina, including all intervention, direct or indirect, in the internal affairs of Bosnia and Herzegovina; ⎯ from all support of any kind ⎯ including the provision of training, arms, ammunition, finances, supplies, assistance, direction or any other form of support ⎯ to any nation, group, organization, movement or individual engaged or planning to engage in military or paramilitary actions in or against Bosnia and Herzegovina; (r) that Yugoslavia (Serbia and Montenegro) has an obligation to pay Bosnia and Herzegovina, in its own right and as parens patriae for its citizens, reparations for damages to persons and property as well as to the Bosnian economy and environment caused by the foregoing violations of international law in a sum to be determined by the Court. Bosnia and Herzegovina reserves the right to introduce to the Court a precise evaluation of the damages caused by Yugoslavia (Serbia and Montenegro).” 65. In the written proceedings, the following submissions were presented by the Parties: On behalf of the Government of Bosnia and Herzegovina, in the Memorial: “On the basis of the evidence and legal arguments presented in this Memorial, the Republic of Bosnia and Herzegovina, Requests the International Court of Justice to adjudge and declare, 1. That the Federal Republic of Yugoslavia (Serbia and Montenegro), directly, or through the use of its surrogates, has violated and is violating the Convention on the Prevention and Punishment of the Crime of Genocide, by destroying in part, and attempting to destroy in whole, national, ethnical or religious groups within the, but not limited to the, territory of the Republic of Bosnia and Herzegovina, including in particular the Muslim population, by ⎯ killing members of the group; ⎯ causing deliberate bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; ⎯ imposing measures intended to prevent births within the group; That the Federal Republic of Yugoslavia (Serbia and Montenegro) has violated and is violating the Convention on the Prevention and Punishment of the Crime of Genocide by conspiring to commit genocide, by complicity in genocide, by attempting to commit genocide and by incitement to commit genocide; That the Federal Republic of Yugoslavia (Serbia and Montenegro) has violated and is violating the Convention on the Prevention and Punishment of the Crime of Genocide by aiding and abetting individuals and groups engaged in acts of genocide; That the Federal Republic of Yugoslavia (Serbia and Montenegro) has violated and is violating the Convention on the Prevention and Punishment of the Crime of Genocide by virtue of having failed to prevent and to punish acts of genocide; That the Federal Republic of Yugoslavia (Serbia and Montenegro) must immediately cease the above conduct and take immediate and effective steps to ensure full compliance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide; That the Federal Republic of Yugoslavia (Serbia and Montenegro) must wipe out the consequences of its international wrongful acts and must restore the situation existing before the violations of the Convention on the Prevention and Punishment of the Crime of Genocide were committed; That, as a result of the international responsibility incurred for the above violations of the Convention on the Prevention and Punishment of the Crime of Genocide, the Federal Republic of Yugoslavia (Serbia and Montenegro) is required to pay, and the Republic of Bosnia and Herzegovina is entitled to receive, in its own right and as parens patriae for its citizens, full compensation for the damages and losses caused, in the amount to be determined by the Court in a subsequent phase of the proceedings in this case. The Republic of Bosnia and Herzegovina reserves its right to supplement or amend its submissions in the light of further pleadings. The Republic of Bosnia and Herzegovina also respectfully draws the attention of the Court to the fact that it has not reiterated, at this point, several of the requests it made in its Application, on the formal assumption that the Federal Republic of Yugoslavia (Serbia and Montenegro) has accepted the jurisdiction of this Court under the terms of the Convention on the Prevention and Punishment of the Crime of Genocide. If the Respondent were to reconsider its acceptance of the jurisdiction of the Court under the terms of that Convention ⎯ which it is, in any event, not entitled to do ⎯ the Government of Bosnia and Herzegovina reserves its right to invoke also all or some of the other existing titles of jurisdiction and to revive all or some of its previous submissions and requests.” On behalf of the Government of Serbia and Montenegro, in the Counter-Memorial: [FN1] “The Federal Republic of Yugoslavia requests the International Court of Justice to adjudge and declare: 1. In view of the fact that no obligations established by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide have been violated with regard to Muslims and Croats, ⎯ since the acts alleged by the Applicant have not been committed at all, or not to the extent and in the way alleged by the Applicant, or ⎯ if some have been committed, there was absolutely no intention of committing genocide, and/or ⎯ they have not been directed specifically against the members of one ethnic or religious group, i.e. they have not been committed against individuals just because they belong to some ethnic or religious group, consequently, they cannot be qualified as acts of genocide or other acts prohibited by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide; and/or 2. In view of the fact that the acts alleged by the Applicant in its submissions cannot be attributed to the Federal Republic of Yugoslavia, ⎯ since they have not been committed by the organs of the Federal Republic of Yugoslavia, ⎯ since they have not been committed on the territory of the Federal Republic of Yugoslavia, ⎯ since they have not been committed by the order or under control of the organs of the Federal Republic of Yugoslavia, ⎯ since there is no other grounds based on the rules of international law to consider them as acts of the Federal Republic of Yugoslavia, therefore the Court rejects all claims of the Applicant; and 3. Bosnia and Herzegovina is responsible for the acts of genocide committed against the Serbs in Bosnia and Herzegovina and for other violations of the obligations established by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, ⎯ because it has incited acts of genocide by the ‘Islamic Declaration’, and in particular by the position contained in it that ‘there can be no peace or coexistence between “Islamic faith” and “non-Islamic” social and political institutions’, ⎯ because it has incited acts of genocide by the Novi Vox, paper of the Muslim youth, and in particular by the verses of a ‘Patriotic Song’ which read as follows: ‘Dear mother, I’m going to plant willows, We’ll hang Serbs from them. Dear mother, I’m going to sharpen knives, We’ll soon fill pits again’; ⎯ because it has incited acts of genocide by the paper Zmaj od Bosne, and in particular by the sentence in an article published in it that ‘Each Muslim must name a Serb and take oath to kill him’; ⎯ because public calls for the execution of Serbs were broadcast on radio ‘Hajat’ and thereby acts of genocide were incited; ⎯ because the armed forces of Bosnia and Herzegovina, as well as other organs of Bosnia and Herzegovina have committed acts of genocide and other acts prohibited by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, against the Serbs in Bosnia and Herzegovina, which have been stated in Chapter Seven of the Counter-Memorial; ⎯ because Bosnia and Herzegovina has not prevented the acts of genocide and other acts prohibited by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, against the Serbs on its territory, which have been stated in Chapter Seven of the Counter-Memorial; Bosnia and Herzegovina has the obligation to punish the persons held responsible for the acts of genocide and other acts prohibited by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide; Bosnia and Herzegovina is bound to take necessary measures so that the said acts would not be repeated in the future; Bosnia and Herzegovina is bound to eliminate all consequences of the violation of the obligations established by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and provide adequate compensation.” ---------------------------------------------------------------------------------------- [FN1] Submissions 3 to 6 relate to counter-claims which were subsequently withdrawn (see paragraphs 26 and 27 above). ---------------------------------------------------------------------------------------- On behalf of the Government of Bosnia and Herzegovina, in the Reply: “Therefore the Applicant persists in its claims as presented to this Court on 14 April 1994, and recapitulates its Submissions in their entirety. Bosnia and Herzegovina requests the International Court of Justice to adjudge and declare, 1. That the Federal Republic of Yugoslavia, directly, or through the use of its surrogates, has violated and is violating the Convention on the Prevention and Punishment of the Crime of Genocide, by destroying in part, and attempting to destroy in whole, national, ethnical or religious groups within the, but not limited to the, territory of Bosnia and Herzegovina, including in particular the Muslim population, by ⎯ killing members of the group; ⎯ causing deliberate bodily or mental harm to members of the group; ⎯ deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; ⎯ imposing measures intended to prevent births within the group; 2. That the Federal Republic of Yugoslavia has violated and is violating the Convention on the Prevention and Punishment of the Crime of Genocide by conspiring to commit genocide, by complicity in genocide, by attempting to commit genocide and by incitement to commit genocide; 3. That the Federal Republic of Yugoslavia has violated and is violating the Convention on the Prevention and Punishment of the Crime of Genocide by aiding and abetting individuals and groups engaged in acts of genocide; 4. That the Federal Republic of Yugoslavia has violated and is violating the Convention on the Prevention and Punishment of the Crime of Genocide by virtue of having failed to prevent and to punish acts of genocide; 5. That the Federal Republic of Yugoslavia must immediately cease the above conduct and take immediate and effective steps to ensure full compliance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide; 6. That the Federal Republic of Yugoslavia must wipe out the consequences of its international wrongful acts and must restore the situation existing before the violations of the Convention on the Prevention and Punishment of the Crime of Genocide were committed; 7. That, as a result of the international responsibility incurred for the above violations of the Convention on the Prevention and Punishment of the Crime of Genocide, the Federal Republic of Yugoslavia is required to pay, and Bosnia and Herzegovina is entitled to receive, in its own right and as parens patriae for its citizens, full compensation for the damages and losses caused, in the amount to be determined by the Court in a subsequent phase of the proceedings in this case. Bosnia and Herzegovina reserves its right to supplement or amend its submissions in the light of further pleadings; 8. On the very same grounds the conclusions and submissions of the Federal Republic of Yugoslavia with regard to the submissions of Bosnia and Herzegovina need to be rejected; 9. With regard to the Respondent’s counter-claims the Applicant comes to the following conclusion. There is no basis in fact and no basis in law for the proposition that genocidal acts have been committed against Serbs in Bosnia and Herzegovina. There is no basis in fact and no basis in law for the proposition that any such acts, if proven, would have been committed under the responsibility of Bosnia and Herzegovina or that such acts, if proven, would be attributable to Bosnia and Herzegovina. Also, there is no basis in fact and no basis in law for the proposition that Bosnia and Herzegovina has violated any of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide. On the contrary, Bosnia and Herzegovina has continuously done everything within its possibilities to adhere to its obligations under the Convention, and will continue to do so; 10. For these reasons, Bosnia and Herzegovina requests the International Court of Justice to reject the counter-claims submitted by the Respondent in its Counter-Memorial of 23 July 1997.” On behalf of the Government of Serbia and Montenegro, in the Rejoinder: [FN1] “The Federal Republic of Yugoslavia requests the International Court of Justice to adjudge and declare: 1. In view of the fact that no obligations established by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide have been violated with regard to Muslims and Croats, ⎯ since the acts alleged by the Applicant have not been committed at all, or not to the extent and in the way alleged by the Applicant, or ⎯ if some have been committed, there was absolutely no intention of committing genocide, and/or ⎯ they have not been directed specifically against the members of one ethnic or religious group, i.e. they have not been committed against individuals just because they belong to some ethnic or religious group, consequently they cannot be qualified as acts of genocide or other acts prohibited by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, and/or 2. In view of the fact that the acts alleged by the Applicant in its submissions cannot be attributed to the Federal Republic of Yugoslavia, ⎯ since they have not been committed by the organs of the Federal Republic of Yugoslavia, ⎯ since they have not been committed on the territory of the Federal Republic of Yugoslavia, ⎯ since they have not been committed by the order or under control of the organs of the Federal Republic of Yugoslavia, ⎯ since there are no other grounds based on the rules of international law to consider them as acts of the Federal Republic of Yugoslavia, therefore the Court rejects all the claims of the Applicant, and 3. Bosnia and Herzegovina is responsible for the acts of genocide committed against Serbs in Bosnia and Herzegovina and for other violations of the obligations established by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, ⎯ because it has incited acts of genocide by the ‘Islamic Declaration’, and in particular by the position contained in it that ‘there can be no peace or coexistence between “Islamic faith” and “non-Islamic” social and political institutions’, ⎯ because it has incited acts of genocide by the Novi Vox, paper of the Muslim youth, and in particular by the verses of a ‘Patriotic Song’ which read as follows: ‘Dear mother, I’m going to plant willows, We’ll hang Serbs from them. Dear mother, I’m going to sharpen knives, We’ll soon fill pits again’; ⎯ because it has incited acts of genocide by the paper Zmaj od Bosne, and in particular by the sentence in an article published in it that ‘Each Muslim’ must name a Serb and take oath to kill him; ⎯ because public calls for the execution of Serbs were broadcast on radio ‘Hajat’ and thereby acts of genocide were incited; ⎯ because the armed forces of Bosnia and Herzegovina, as well as other organs of Bosnia and Herzegovina have committed acts of genocide and other acts prohibited by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (enumerated in Article III), against Serbs in Bosnia and Herzegovina, which have been stated in Chapter Seven of the Counter-Memorial; ⎯ because Bosnia and Herzegovina has not prevented the acts of genocide and other acts prohibited by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (enumerated in Article III), against Serbs on its territory, which have been stated in Chapter Seven of the Counter-Memorial; Bosnia and Herzegovina has the obligation to punish the persons held responsible for the acts of genocide and other acts prohibited by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide; Bosnia and Herzegovina is bound to take necessary measures so that the said acts would not be repeated in the future; Bosnia and Herzegovina is bound to eliminate all the consequences of violation of the obligations established by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and to provide adequate compensation.” ---------------------------------------------------------------------------------------- [FN1] Submissions 3 to 6 relate to counter-claims which were subsequently withdrawn (see paragraphs 26 and 27 above). ---------------------------------------------------------------------------------------- 66. At the oral proceedings, the following final submissions were presented by the Parties: On behalf of the Government of Bosnia and Herzegovina, at the hearing of 24 April 2006: “Bosnia and Herzegovina requests the International Court of Justice to adjudge and declare: 1. That Serbia and Montenegro, through its organs or entities under its control, has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by intentionally destroying in part the non-Serb national, ethnical or religious group within, but not limited to, the territory of Bosnia and Herzegovina, including in particular the Muslim population, by ⎯ killing members of the group; ⎯ causing serious bodily or mental harm to members of the group; ⎯ deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; ⎯ imposing measures intended to prevent births within the group; ⎯ forcibly transferring children of the group to another group; 2. Subsidiarily: (i) that Serbia and Montenegro has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by complicity in genocide as defined in paragraph 1, above; and/or (ii) that Serbia and Montenegro has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by aiding and abetting individuals, groups and entities engaged in acts of genocide, as defined in paragraph 1 above; 3. That Serbia and Montenegro has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by conspiring to commit genocide and by inciting to commit genocide, as defined in paragraph 1 above; 4. That Serbia and Montenegro has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide for having failed to prevent genocide; 5. That Serbia and Montenegro has violated and is violating its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide for having failed and for failing to punish acts of genocide or any other act prohibited by the Convention on the Prevention and Punishment of the Crime of Genocide, and for having failed and for failing to transfer individuals accused of genocide or any other act prohibited by the Convention to the International Criminal Tribunal for the former Yugoslavia and to fully co-operate with this Tribunal; 6. That the violations of international law set out in submissions 1 to 5 constitute wrongful acts attributable to Serbia and Montenegro which entail its international responsibility, and, accordingly, (a) that Serbia and Montenegro shall immediately take effective steps to ensure full compliance with its obligation to punish acts of genocide under the Convention on the Prevention and Punishment of the Crime of Genocide or any other act prohibited by the Convention and to transfer individuals accused of genocide or any other act prohibited by the Convention to the International Criminal Tribunal for the former Yugoslavia and to fully co-operate with this Tribunal; (b) that Serbia and Montenegro must redress the consequences of its international wrongful acts and, as a result of the international responsibility incurred for the above violations of the Convention on the Prevention and Punishment of the Crime of Genocide, must pay, and Bosnia and Herzegovina is entitled to receive, in its own right and as parens patriae for its citizens, full compensation for the damages and losses caused. That, in particular, the compensation shall cover any financially assessable damage which corresponds to: (i) damage caused to natural persons by the acts enumerated in Article III of the Convention, including non-material damage suffered by the victims or the surviving heirs or successors and their dependants; (ii) material damage caused to properties of natural or legal persons, public or private, by the acts enumerated in Article III of the Convention; (iii) material damage suffered by Bosnia and Herzegovina in respect of expenditures reasonably incurred to remedy or mitigate damage flowing from the acts enumerated in Article III of the Convention; (c) that the nature, form and amount of the compensation shall be determined by the Court, failing agreement thereon between the Parties one year after the Judgment of the Court, and that the Court shall reserve the subsequent procedure for that purpose; (d) that Serbia and Montenegro shall provide specific guarantees and assurances that it will not repeat the wrongful acts complained of, the form of which guarantees and assurances is to be determined by the Court; 7. That in failing to comply with the Orders for indication of provisional measures rendered by the Court on 8 April 1993 and 13 September 1993 Serbia and Montenegro has been in breach of its international obligations and is under an obligation to Bosnia and Herzegovina to provide for the latter violation symbolic compensation, the amount of which is to be determined by the Court.” On behalf of the Government of Serbia and Montenegro, at the hearing of 9 May 2006: “Serbia and Montenegro asks the Court to adjudge and declare: ⎯ that this Court has no jurisdiction because the Respondent had no access to the Court at the relevant moment; or, in the alternative; ⎯ that this Court has no jurisdiction over the Respondent because the Respondent never remained or became bound by Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, and because there is no other ground on which jurisdiction over the Respondent could be based. In case the Court determines that jurisdiction exists Serbia and Montenegro asks the Court to adjudge and declare: ⎯ That the requests in paragraphs 1 to 6 of the Submissions of Bosnia and Herzegovina relating to alleged violations of the obligations under the Convention on the Prevention and Punishment of the Crime of Genocide be rejected as lacking a basis either in law or in fact. ⎯ In any event, that the acts and/or omissions for which the respondent State is alleged to be responsible are not attributable to the respondent State. Such attribution would necessarily involve breaches of the law applicable in these proceedings. ⎯ Without prejudice to the foregoing, that the relief available to the applicant State in these proceedings, in accordance with the appropriate interpretation of the Convention on the Prevention and Punishment of the Crime of Genocide, is limited to the rendering of a declaratory judgment. ⎯ Further, without prejudice to the foregoing, that any question of legal responsibility for alleged breaches of the Orders for the indication of provisional measures, rendered by the Court on 8 April 1993 and 13 September 1993, does not fall within the competence of the Court to provide appropriate remedies to an applicant State in the context of contentious proceedings, and, accordingly, the request in paragraph 7 of the Submissions of Bosnia and Herzegovina should be rejected.” II. Identification of the respondent party 67. The Court has first to consider a question concerning the identification of the Respondent party before it in these proceedings. After the close of the oral proceedings, by a letter dated 3 June 2006, the President of the Republic of Serbia informed the Secretary-General of the United Nations that, following the Declaration of Independence adopted by the National Assembly of Montenegro on 3 June 2006, “the membership of the state union Serbia and Montenegro in the United Nations, including all organs and organisations of the United Nations system, [would be] continued by the Republic of Serbia on the basis of Article 60 of the Constitutional Charter of Serbia and Montenegro”. He further stated that “in the United Nations the name ‘Republic of Serbia’ [was] to be henceforth used instead of the name ‘Serbia and Montenegro’” and added that the Republic of Serbia “remain[ed] responsible in full for all the rights and obligations of the state union of Serbia and Montenegro under the UN Charter”. 68. By a letter of 16 June 2006, the Minister for Foreign Affairs of the Republic of Serbia informed the Secretary-General, inter alia, that “[t]he Republic of Serbia continue[d] to exercise its rights and honour its commitments deriving from international treaties concluded by Serbia and Montenegro” and requested that “the Republic of Serbia be considered a party to all international agreements in force, instead of Serbia and Montenegro”. By a letter addressed to the Secretary-General dated 30 June 2006, the Minister for Foreign Affairs confirmed the intention of the Republic of Serbia to continue to exercise its rights and honour its commitments deriving from international treaties concluded by Serbia and Montenegro. He specified that “all treaty actions undertaken by Serbia and Montenegro w[ould] continue in force with respect to the Republic of Serbia with effect from 3 June 2006”, and that, “all declarations, reservations and notifications made by Serbia and Montenegro w[ould] be maintained by the Republic of Serbia until the Secretary-General, as depositary, [were] duly notified otherwise”. 69. On 28 June 2006, by its resolution 60/264, the General Assembly admitted the Republic of Montenegro (hereinafter “Montenegro”) as a new Member of the United Nations. 70. By letters dated 19 July 2006, the Registrar requested the Agent of Bosnia and Herzegovina, the Agent of Serbia and Montenegro and the Foreign Minister of Montenegro to communicate to the Court the views of their Governments on the consequences to be attached to the above-mentioned developments in the context of the case. By a letter dated 26 July 2006, the Agent of Serbia and Montenegro explained that, in his Government’s opinion, “there [was] continuity between Serbia and Montenegro and the Republic of Serbia (on the grounds of Article 60 of the Constitutional Charter of Serbia and Montenegro)”. He noted that the entity which had been Serbia and Montenegro “ha[d] been replaced by two distinct States, one of them [was] Serbia, the other [was] Montenegro”. In those circumstances, the view of his Government was that “the Applicant ha[d] first to take a position, and to decide whether it wishe[d] to maintain its original claim encompassing both Serbia and Montenegro, or whether it [chose] to do otherwise”. 71. By a letter to the Registrar dated 16 October 2006, the Agent of Bosnia and Herzegovina referred to the letter of 26 July 2006 from the Agent of Serbia and Montenegro, and observed that Serbia’s definition of itself as the continuator of the former Serbia and Montenegro had been accepted both by Montenegro and the international community. He continued however as follows: “this acceptance cannot have, and does not have, any effect on the applicable rules of state responsibility. Obviously, these cannot be altered bilaterally or retroactively. At the time when genocide was committed and at the time of the initiation of this case, Serbia and Montenegro constituted a single state. Therefore, Bosnia and Herzegovina is of the opinion that both Serbia and Montenegro, jointly and severally, are responsible for the unlawful conduct that constitute the cause of action in this case.” 72. By a letter dated 29 November 2006, the Chief State Prosecutor of Montenegro, after indicating her capacity to act as legal representative of the Republic of Montenegro, referred to the letter from the Agent of Bosnia and Herzegovina dated 16 October 2006, quoted in the previous paragraph, expressing the view that “both Serbia and Montenegro, jointly and severally, are responsible for the unlawful conduct that constitute[s] the cause of action in this case”. The Chief State Prosecutor stated that the allegation concerned the liability in international law of the sovereign State of Montenegro, and that Montenegro regarded it as an attempt to have it become a participant in this way, without its consent, “i.e. to become a respondent in this procedure”. The Chief State Prosecutor drew attention to the fact that, following the referendum held in Montenegro on 21 May 2006, the National Assembly of Montenegro had adopted a decision pronouncing the independence of the Republic of Montenegro. In the view of the Chief State Prosecutor, the Republic of Montenegro had become “an independent state with full international legal personality within its existing administrative borders”, and she continued: “The issue of international-law succession of [the] State union of Serbia and Montenegro is regulated in Article 60 of [the] Constitutional Charter, and according to [that] Article the legal successor of [the] State union of Serbia and Montenegro is the Republic of Serbia, which, as a sovereign state, [has] become [the] follower of all international obligations and successor in international organizations.” The Chief State Prosecutor concluded that in the dispute before the Court, “the Republic of Montenegro may not have [the] capacity of respondent, [for the] above mentioned reasons”. 73. By a letter dated 11 December 2006, the Agent of Serbia referred to the letters from the Applicant and from Montenegro described in paragraphs 71 and 72 above, and observed that there was “an obvious contradiction between the position of the Applicant on the one hand and the position of Montenegro on the other regarding the question whether these proceedings may or may not yield a decision which would result in the international responsibility of Montenegro” for the unlawful conduct invoked by the Applicant. The Agent stated that “Serbia is of the opinion that this issue needs to be resolved by the Court”. 74. The Court observes that the facts and events on which the final submissions of Bosnia and Herzegovina are based occurred at a period of time when Serbia and Montenegro constituted a single State. 75. The Court notes that Serbia has accepted “continuity between Serbia and Montenegro and the Republic of Serbia” (paragraph 70 above), and has assumed responsibility for “its commitments deriving from international treaties concluded by Serbia and Montenegro” (paragraph 68 above), thus including commitments under the Genocide Convention. Montenegro, on the other hand, does not claim to be the continuator of Serbia and Montenegro. 76. The Court recalls a fundamental principle that no State may be subject to its jurisdiction without its consent; as the Court observed in the case of Certain Phosphate Lands in Nauru (Nauru v. Australia), the Court’s “jurisdiction depends on the consent of States and, consequently, the Court may not compel a State to appear before it . . .” (Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 260, para. 53). In its Judgment of 11 July 1996 (see paragraph 12 above), the significance of which will be explained below, the Court found that such consent existed, for the purposes of the present case, on the part of the FRY, which subsequently assumed the name of Serbia and Montenegro, without however any change in its legal personality. The events related in paragraphs 67 to 69 above clearly show that the Republic of Montenegro does not continue the legal personality of Serbia and Montenegro; it cannot therefore have acquired, on that basis, the status of Respondent in the present case. It is also clear from the letter of 29 November 2006 quoted in paragraph 72 above that it does not give its consent to the jurisdiction of the Court over it for the purposes of the present dispute. Furthermore, the Applicant did not in its letter of 16 October 2006 assert that Montenegro is still a party to the present case; it merely emphasized its views as to the joint and several liability of Serbia and of Montenegro. 77. The Court thus notes that the Republic of Serbia remains a respondent in the case, and at the date of the present Judgment is indeed the only Respondent. Accordingly, any findings that the Court may make in the operative part of the present Judgment are to be addressed to Serbia. 78. That being said, it has to be borne in mind that any responsibility for past events determined in the present Judgment involved at the relevant time the State of Serbia and Montenegro. 79. The Court observes that the Republic of Montenegro is a party to the Genocide Convention. Parties to that Convention have undertaken the obligations flowing from it, in particular the obligation to co-operate in order to punish the perpetrators of genocide. III. The Court’s jurisdiction (1) Introduction: the jurisdictional objection of Serbia and Montenegro 80. Notwithstanding the fact that in this case the stage of oral proceedings on the merits has been reached, and the fact that in 1996 the Court gave a judgment on preliminary objections to its jurisdiction (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 595, hereinafter “the 1996 Judgment”), an important issue of a jurisdictional character has since been raised by the Initiative, and the Court has been asked to rule upon it (see paragraphs 26-28 above). The basis of jurisdiction asserted by the Applicant, and found applicable by the Court by the 1996 Judgment, is Article IX of the Genocide Convention. The Socialist Federal Republic of Yugoslavia (hereinafter “the SFRY”) became a party to that Convention on 29 August 1950. In substance, the central question now raised by the Respondent is whether at the time of the filing of the Application instituting the present proceedings the Respondent was or was not the continuator of the SFRY. The Respondent now contends that it was not a continuator State, and that therefore not only was it not a party to the Genocide Convention when the present proceedings were instituted, but it was not then a party to the Statute of the Court by virtue of membership in the United Nations; and that, not being such a party, it did not have access to the Court, with the consequence that the Court had no jurisdiction ratione personae over it. 81. This contention was first raised, in the context of the present case, by the “Initiative to the Court to Reconsider ex officio Jurisdiction over Yugoslavia” filed by the Respondent on 4 May 2001 (paragraph 26 above). The circumstances underlying that Initiative will be examined in more detail below (paragraphs 88-99). Briefly stated, the situation was that the Respondent, after claiming that since the break-up of the SFRY in 1992 it was the continuator of that State, and as such maintained the membership of the SFRY in the United Nations, had on 27 October 2000 applied, “in light of the implementation of the Security Council resolution 777 (1992)”, to be admitted to the Organization as a new Member, thereby in effect relinquishing its previous claim. The Respondent contended that it had in 2000 become apparent that it had not been a Member of the United Nations in the period 1992-2000, and was thus not a party to the Statute at the date of the filing of the Application in this case; and that it was not a party to the Genocide Convention on that date. The Respondent concluded that “the Court has no jurisdiction over [the Respondent] ratione personae”. It requested the Court “to suspend proceedings regarding the merits of the Case until a decision on this Initiative is rendered”. 82. By a letter of 12 June 2003, the Registrar, acting on the instructions of the Court, informed the Respondent that the Court could not accede to the request made in that document, that the proceedings be suspended until a decision was rendered on the jurisdictional issues raised therein. The Respondent was informed, nevertheless, that the Court “w[ould] not give judgment on the merits in the present case unless it [was] satisfied that it ha[d] jurisdiction” and that, “[s]hould Serbia and Montenegro wish to present further argument to the Court on jurisdictional questions during the oral proceedings on the merits, it w[ould] be free to do so”. The Respondent accordingly raised, as an “issue of procedure”, the question whether the Respondent had access to the Court at the date of the Application, and each of the parties has now addressed argument to the Court on that question. It has however at the same time been argued by the Applicant that the Court may not deal with the question, or that the Respondent is debarred from raising it at this stage of the proceedings. These contentions will be examined below. 83. Subsequently, on 15 December 2004, the Court delivered judgment in eight cases brought by Serbia and Montenegro against Member States of NATO (cases concerning the Legality of Use of Force). The Applications instituting proceedings in those cases had been filed on 29 April 1999, that is to say prior to the admission of Serbia and Montenegro (then known as the Federal Republic of Yugoslavia) to the United Nations on 1 November 2000. In each of these cases, the Court held that it had no jurisdiction to entertain the claims made in the Application (see, for example, Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 328, para. 129), on the grounds that “Serbia and Montenegro did not, at the time of the institution of the present proceedings, have access to the Court under either paragraph 1 or paragraph 2 of Article 35 of the Statute” (ibid., p. 327, para. 127). It held, “in light of the legal consequences of the new development since 1 November 2000”, that “Serbia and Montenegro was not a Member of the United Nations, and in that capacity a State party to the Statute of the International Court of Justice, at the time of filing its Application . . .” (ibid., p. 311, para. 79). No finding was made in those judgments on the question whether or not the Respondent was a party to the Genocide Convention at the relevant time. 84. Both Parties recognize that each of these Judgments has the force of res judicata in the specific case for the parties thereto; but they also recognize that these Judgments, not having been rendered in the present case, and involving as parties States not parties to the present case, do not constitute res judicata for the purposes of the present proceedings. In view however of the findings in the cases concerning the Legality of Use of Force as to the status of the FRY vis-à-vis the United Nations and the Court in 1999, the Respondent has invoked those decisions as supportive of its contentions in the present case. 85. The grounds upon which, according to Bosnia and Herzegovina, the Court should, at this late stage of the proceedings, decline to examine the questions raised by the Respondent as to the status of Serbia and Montenegro in relation to Article 35 of the Statute, and its status as a party to the Genocide Convention, are because the conduct of the Respondent in relation to the case has been such as to create a sort of forum prorogatum, or an estoppel, or to debar it, as a matter of good faith, from asserting at this stage of the proceedings that it had no access to the Court at the date the proceedings were instituted; and because the questions raised by the Respondent had already been resolved by the 1996 Judgment, with the authority of res judicata. 86. As a result of the Initiative of the Respondent (paragraph 81 above), and its subsequent argument on what it has referred to as an “issue of procedure”, the Court has before it what is essentially an objection by the Respondent to its jurisdiction, which is preliminary in the sense that, if it is upheld, the Court will not proceed to determine the merits. The Applicant objects in turn to the Court examining further the Respondent’s jurisdictional objection. These matters evidently require to be examined as preliminary points, and it was for this reason that the Court instructed the Registrar to write to the Parties the letter of 12 June 2003, referred to in paragraph 82 above. The letter was intended to convey that the Court would listen to any argument raised by the Initiative which might be put to it, but not as an indication of what its ruling might be on any such arguments. 87. In order to make clear the background to these issues, the Court will first briefly review the history of the relationship between the Respondent and the United Nations during the period from the break-up of the SFRY in 1992 to the admission of Serbia and Montenegro (then called the Federal Republic of Yugoslavia) to the United Nations on 1 November 2000. The previous decisions of the Court in this case, and in the Application for Revision case, have been briefly recalled above (paragraphs 4, 8, 12 and 31). They will be referred to more fully below (paragraphs 105-113) for the purpose of (in particular) an examination of the contentions of Bosnia and Herzegovina on the question of res judicata. (2) History of the status of the FRY with regard to the United Nations 88. In the early 1990s the SFRY, a founding Member State of the United Nations, made up of Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia, began to disintegrate. On 25 June 1991 Croatia and Slovenia both declared independence, followed by Macedonia on 17 September 1991 and Bosnia and Herzegovina on 6 March 1992. On 22 May 1992, Bosnia and Herzegovina, Croatia and Slovenia were admitted as Members to the United Nations; as was the former Yugoslav Republic of Macedonia on 8 April 1993. 89. On 27 April 1992 the “participants of the joint session of the SFRY Assembly, the National Assembly of the Republic of Serbia and the Assembly of the Republic of Montenegro” had adopted a declaration, stating in pertinent parts: [FN1] -------------------------------------------------------------------------------------------------------------- [FN1] The Federal Republic of Yugoslavia, continuing the state, international legal and political personality of the Socialist Federal Republic of Yugoslavia, shall strictly abide by all the commitments that the SFR of Yugoslavia assumed internationally, --------------------------------------------------------------------------------------------------------------- Remaining bound by all obligations to international organizations and institutions whose member it is . . .” (United Nations doc. A/46/915, Ann. II). 90. An official Note dated 27 April 1992 from the Permanent Mission of Yugoslavia to the United Nations, addressed to the Secretary-General of the United Nations, stated inter alia that: “The Assembly of the Socialist Federal Republic of Yugoslavia, at its session held on 27 April 1992, promulgated the Constitution of the Federal Republic of Yugoslavia. Under the Constitution, on the basis of the continuing personality of Yugoslavia and the legitimate decisions by Serbia and Montenegro to continue to live together in Yugoslavia, the Socialist Federal Republic of Yugoslavia is transformed into the Federal Republic of Yugoslavia, consisting of the Republic of Serbia and the Republic of Montenegro. Strictly respecting the continuity of the international personality of Yugoslavia, the Federal Republic of Yugoslavia shall continue to fulfil all the rights conferred to, and obligations assumed by, the Socialist Federal Republic of Yugoslavia in international relations, including its membership in all international organizations and participation in international treaties ratified or acceded to by Yugoslavia.” (United Nations doc. A/46/915, Ann. I.) On 30 May 1992, the Security Council adopted resolution 757 (1992), in which, inter alia, it noted that “the claim by the Federal Republic of Yugoslavia (Serbia and Montenegro) to continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations has not been generally accepted”. On 19 September 1992, the Security Council adopted resolution 777 (1992) which read as follows: “The Security Council, Reaffirming its resolution 713 (1991) of 25 September 1991 and all subsequent relevant resolutions, Considering that the state formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist, Recalling in particular resolution 757 (1992) which notes that ‘the claim by the Federal Republic of Yugoslavia (Serbia and Montenegro) to continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations has not been generally accepted’, Considers that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations; and therefore recommends to the General Assembly that it decide that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly; Decides to consider the matter again before the end of the main part of the forty-seventh session of the General Assembly.” The resolution was adopted by 12 votes in favour, none against, and 3 abstentions. 93. On 22 September 1992 the General Assembly adopted resolution 47/1, according to which: “The General Assembly, Having received the recommendation of the Security Council of 19 September 1992 that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly, Considers that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations; and therefore decides that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly; Takes note of the intention of the Security Council to consider the matter again before the end of the main part of the forty-seventh session of the General Assembly.” The resolution was adopted by 127 votes to 6, with 26 abstentions. 94. On 25 September 1992, the Permanent Representatives of Bosnia and Herzegovina and Croatia addressed a letter to the Secretary-General, in which, with reference to Security Council resolution 777 (1992) and General Assembly resolution 47/1, they stated their understanding as follows: “At this moment, there is no doubt that the Socialist Federal Republic of Yugoslavia is not a member of the United Nations any more. At the same time, the Federal Republic of Yugoslavia is clearly not yet a member.” They concluded that “[t]he flag flying in front of the United Nations and the name-plaque bearing the name ‘Yugoslavia’ do not represent anything or anybody any more” and “kindly request[ed] that [the Secretary-General] provide a legal explanatory statement concerning the questions raised” (United Nations doc. A/47/474). 95. In response, on 29 September 1992, the Under-Secretary-General and Legal Counsel of the United Nations addressed a letter to the Permanent Representatives of Bosnia and Herzegovina and Croatia, in which he stated that the “considered view of the United Nations Secretariat regarding the practical consequences of the adoption by the General Assembly of resolution 47/1” was as follows: “While the General Assembly has stated unequivocally that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot automatically continue the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations and that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations, the only practical consequence that the resolution draws is that the Federal Republic of Yugoslavia (Serbia and Montenegro) shall not participate in the work of the General Assembly. It is clear, therefore, that representatives of the Federal Republic of Yugoslavia (Serbia and Montenegro) can no longer participate in the work of the General Assembly, its subsidiary organs, nor conferences and meetings convened by it. On the other hand, the resolution neither terminates nor suspends Yugoslavia’s membership in the Organization. Consequently, the seat and nameplate remain as before, but in Assembly bodies representatives of the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot sit behind the sign ‘Yugoslavia’. Yugoslav missions at United Nations Headquarters and offices may continue to function and may receive and circulate documents. At Headquarters, the Secretariat will continue to fly the flag of the old Yugoslavia as it is the last flag of Yugoslavia used by the Secretariat. The resolution does not take away the right of Yugoslavia to participate in the work of organs other than Assembly bodies. The admission to the United Nations of a new Yugoslavia under Article 4 of the Charter will terminate the situation created by resolution 47/1.” (United Nations doc. A/47/485; emphasis in the original.) 96. On 29 April 1993, the General Assembly, upon the recommendation contained in Security Council resolution 821 (1993) (couched in terms similar to those of Security Council resolution 777 (1992)), adopted resolution 47/229 in which it decided that “the Federal Republic of Yugoslavia (Serbia and Montenegro) shall not participate in the work of the Economic and Social Council”. 97. In its Judgments in the cases concerning the Legality of Use of Force (paragraph 83 above), the Court commented on this sequence of events by observing that “all these events testify to the rather confused and complex state of affairs that obtained within the United Nations surrounding the issue of the legal status of the Federal Republic of Yugoslavia in the Organization during this period” (Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 308, para. 73), and earlier the Court, in another context, had referred to the “sui generis position which the FRY found itself in” during the period between 1992 to 2000 (loc. cit., citing I.C.J. Reports 2003, p. 31, para. 71). 98. This situation, however, came to an end with a new development in 2000. On 24 September 2000, Mr. Koštunica was elected President of the FRY. In that capacity, on 27 October 2000 he sent a letter to the Secretary-General requesting admission of the FRY to membership in the United Nations, in the following terms: “In the wake of fundamental democratic changes that took place in the Federal Republic of Yugoslavia, in the capacity of President, I have the honour to request the admission of the Federal Republic of Yugoslavia to the United Nations in light of the implementation of the Security Council resolution 777 (1992).” (United Nations doc. A/55/528-S/2000/1043; emphasis added.) 99. Acting upon this application by the FRY for membership in the United Nations, the Security Council on 31 October 2000 “recommend[ed] to the General Assembly that the Federal Republic of Yugoslavia be admitted to membership in the United Nations” (United Nations doc. S/RES/1326). On 1 November 2000, the General Assembly, by resolution 55/12, “[h]aving received the recommendation of the Security Council of 31 October 2000” and “[h]aving considered the application for membership of the Federal Republic of Yugoslavia”, decided to “admit the Federal Republic of Yugoslavia to membership in the United Nations”. (3) The response of Bosnia and Herzegovina 100. The Court will now consider the Applicant’s response to the jurisdictional objection raised by the Respondent, that is to say the contention of Bosnia and Herzegovina that the Court should not examine the question, raised by the Respondent in its Initiative (paragraph 81 above), of the status of the Respondent at the date of the filing of the Application instituting proceedings. It is first submitted by Bosnia and Herzegovina that the Respondent was under a duty to raise the issue of whether the FRY (Serbia and Montenegro) was a Member of the United Nations at the time of the proceedings on the preliminary objections, in 1996, and that since it did not do so, the principle of res judicata, attaching to the Court’s 1996 Judgment on those objections, prevents it from reopening the issue. Secondly, the Applicant argues that the Court itself, having decided in 1996 that it had jurisdiction in the case, would be in breach of the principle of res judicata if it were now to decide otherwise, and that the Court cannot call in question the authority of its decisions as res judicata. 101. The first contention, as to the alleged consequences of the fact that Serbia did not raise the question of access to the Court under Article 35 at the preliminary objection stage, can be dealt with succinctly. Bosnia and Herzegovina has argued that to uphold the Respondent’s objection “would mean that a respondent, after having asserted one or more preliminary objections, could still raise others, to the detriment of the effective administration of justice, the smooth conduct of proceedings, and, in the present case, the doctrine of res judicata”. It should however be noted that if a party to proceedings before the Court chooses not to raise an issue of jurisdiction by way of the preliminary objection procedure under Article 79 of the Rules, that party is not necessarily thereby debarred from raising such issue during the proceedings on the merits of the case. As the Court stated in the case of Avena and Other Mexican Nationals (Mexico v. United States of America), “There are of course circumstances in which the party failing to put forward an objection to jurisdiction might be held to have acquiesced in jurisdiction (Appeal Relating to the Jurisdiction of the ICAO Council, Judgment, I.C.J. Reports 1972, p. 52, para. 13). However, apart from such circumstances, a party failing to avail itself of the Article 79 procedure may forfeit the right to bring about a suspension of the proceedings on the merits, but can still argue the objection along with the merits.” (Judgment, I.C.J. Reports 2004, p. 29, para. 24). This first contention of Bosnia and Herzegovina must thus be understood as a claim that the Respondent, by its conduct in relation to the case, including the failure to raise the issue of the application of Article 35 of the Statute, by way of preliminary objection or otherwise, at an earlier stage of the proceedings, should be held to have acquiesced in jurisdiction. This contention is thus parallel to the argument mentioned above (paragraph 85), also advanced by Bosnia and Herzegovina, that the Respondent is debarred from asking the Court to examine that issue for reasons of good faith, including estoppel and the principle allegans contraria nemo audietur. 102. The Court does not however find it necessary to consider here whether the conduct of the Respondent could be held to constitute an acquiescence in the jurisdiction of the Court. Such acquiescence, if established, might be relevant to questions of consensual jurisdiction, and in particular jurisdiction ratione materiae under Article IX of the Genocide Convention, but not to the question whether a State has the capacity under the Statute to be a party to proceedings before the Court. The latter question may be regarded as an issue prior to that of jurisdiction ratione personae, or as one constitutive element within the concept of jurisdiction ratione personae. Either way, unlike the majority of questions of jurisdiction, it is not a matter of the consent of the parties. As the Court observed in the cases concerning the Legality of Use of Force, “a distinction has to be made between a question of jurisdiction that relates to the consent of a party and the question of the right of a party to appear before the Court under the requirements of the Statute, which is not a matter of consent. The question is whether as a matter of law Serbia and Montenegro was entitled to seise the Court as a party to the Statute at the time when it instituted proceedings in these cases. Since that question is independent of the views or wishes of the Parties, even if they were now to have arrived at a shared view on the point, the Court would not have to accept that view as necessarily the correct one. The function of the Court to enquire into the matter and reach its own conclusion is thus mandatory upon the Court irrespective of the consent of the parties and is in no way incompatible with the principle that the jurisdiction of the Court depends on consent.” (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 295, para. 36; emphasis in the original.) 103. It follows that, whether or not the Respondent should be held to have acquiesced in the jurisdiction of the Court in this case, such acquiescence would in no way debar the Court from examining and ruling upon the question stated above. The same reasoning applies to the argument that the Respondent is estopped from raising the matter at this stage, or debarred from doing so by considerations of good faith. All such considerations can, at the end of the day, only amount to attributing to the Respondent an implied acceptance, or deemed consent, in relation to the jurisdiction of the Court; but, as explained above, ad hoc consent of a party is distinct from the question of its capacity to be a party to proceedings before the Court. 104. However Bosnia and Herzegovina’s second contention is that, objectively and apart from any effect of the conduct of the Respondent, the question of the application of Article 35 of the Statute in this case has already been resolved as a matter of res judicata, and that if the Court were to go back on its 1996 decision on jurisdiction, it would disregard fundamental rules of law. In order to assess the validity of this contention, the Court will first review its previous decisions in the present case in which its jurisdiction, or specifically the question whether Serbia and Montenegro could properly appear before the Court, has been in issue. (4) Relevant past decisions of the Court 105. On 8 April 1993, the Court made an Order in this case indicating certain provisional measures. In that Order the Court briefly examined the circumstances of the break-up of the SFRY, and the claim of the Respondent (then known as “Yugoslavia (Serbia and Montenegro)”) to continuity with that State, and consequent entitlement to continued membership in the United Nations. It noted that “the solution adopted” within the United Nations was “not free from legal difficulties”, but concluded that “the question whether or not Yugoslavia is a Member of the United Nations and as such a party to the Statute of the Court is one which the Court does not need to determine definitively at the present stage of the proceedings” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 14 para. 18). This conclusion was based in part on a provisional view taken by the Court as to the effect of the proviso to Article 35, paragraph 2, of the Statute (ibid., para. 19). The Order contained the reservation, normally included in orders on requests for provisional measures, that “the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case . . . and leaves unaffected the right of the Governments of Bosnia-Herzegovina and Yugoslavia to submit arguments in respect of [that question]” (ibid., p. 23, para. 51). It is therefore evident that no question of res judicata arises in connection with the Order of 8 April 1993. A further Order on provisional measures was made on 13 September 1993, but contained nothing material to the question now being considered. 106. In 1995 the Respondent raised seven preliminary objections (one of which was later withdrawn), three of which invited the Court to find that it had no jurisdiction in the case. None of these objections were however founded on a contention that the FRY was not a party to the Statute at the relevant time; that was not a contention specifically advanced in the proceedings on the preliminary objections. At the time of those proceedings, the FRY was persisting in the claim, that it was continuing the membership of the former SFRY in the United Nations; and while that claim was opposed by a number of States, the position taken by the various organs gave rise to a “confused and complex state of affairs . . . within the United Nations” (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 308, para. 73). Neither party raised the matter before the Court: Bosnia and Herzegovina as Applicant, while denying that the FRY was a Member of the United Nations as a continuator of the SFRY, was asserting before this Court that the FRY was nevertheless a party to the Statute, either under Article 35, paragraph 2, thereof, or on the basis of the declaration of 27 April 1992 (see paragraphs 89 to 90 above); and for the FRY to raise the issue would have involved undermining or abandoning its claim to be the continuator of the SFRY as the basis for continuing membership of the United Nations. 107. By the 1996 Judgment, the Court rejected the preliminary objections of the Respondent, and found that, “on the basis of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, it has jurisdiction to adjudicate upon the dispute” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 623, para. 47 (2) (a)). It also found that the Application was admissible, and stated that “the Court may now proceed to consider the merits of the case . . .” (ibid., p. 622, para. 46). 108. However, on 24 April 2001 Serbia and Montenegro (then known as the Federal Republic of Yugoslavia) filed an Application instituting proceedings seeking revision, under Article 61 of the Statute, of the 1996 Judgment on jurisdiction in this case. That Article requires that there exist “some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court …”. The FRY claimed in its Application that: “The admission of the FRY to the United Nations as a new Member on 1 November 2000 is certainly a new fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The admission of the FRY to the United Nations as a new Member clears ambiguities and sheds a different light on the issue of the membership of the FRY in the United Nations, in the Statute and in the Genocide Convention.” (Application for Revision, I.C.J. Reports 2003, p. 12, para. 18.) Essentially the contention of the FRY was that its admission to membership in 2000 necessarily implied that it was not a Member of the United Nations and thus not a party to the Statute in 1993, when the proceedings in the present case were instituted, so that the Court would have had no jurisdiction in the case. 109. The history of the relationship between the FRY and the United Nations, from the break-up of the SFRY in 1991-1992 up to the admission of the FRY as a new Member in 2000, has been briefly recalled in paragraphs 88 to 99 above. That history has been examined in detail on more than one occasion, both in the context of the Application for revision referred to in paragraph 108 and in the Court’s Judgments in 2004 in the cases concerning the Legality of Use of Force. In its Judgment of 3 February 2003 on the Application for revision, the Court carefully studied that relationship; it also recalled the terms of its 1996 Judgment finding in favour of jurisdiction. The Court noted that “the FRY claims that the facts which existed at the time of the 1996 Judgment and upon the discovery of which its request for revision of that Judgment is based ‘are that the FRY was not a party to the Statute, and that it did not remain bound by the Genocide Convention continuing the personality of the former Yugoslavia’. It argues that these ‘facts’ were ‘revealed’ by its admission to the United Nations on 1 November 2000 and by [a letter from the United Nations Legal Counsel] of 8 December 2000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In the final version of its argument, the FRY claims that its admission to the United Nations and the Legal Counsel’s letter of 8 December 2000 simply ‘revealed’ two facts which had existed in 1996 but had been unknown at the time: that it was not then a party to the Statute of the Court and that it was not bound by the Genocide Convention.” (I.C.J. Reports 2003, p. 30, paras. 66 and 69.) 110. The Court did not consider that the admission of the FRY to membership was itself a “new fact”, since it occurred after the date of the Judgment of which the revision was sought (ibid., para. 68). As to the argument that facts on which an application for revision could be based were “revealed” by the events of 2000, the Court ruled as follows: “In advancing this argument, the FRY does not rely on facts that existed in 1996. In reality, it bases its Application for revision on the legal consequences which it seeks to draw from facts subsequent to the Judgment which it is asking to have revised. Those consequences, even supposing them to be established, cannot be regarded as facts within the meaning of Article 61. The FRY’s argument cannot accordingly be upheld.” (Ibid., pp. 30-31, para. 69.) 111. The Court therefore found the Application for revision inadmissible. However, as the Court has observed in the cases concerning Legality of Use of Force, it did not, in its Judgment on the Application for revision, “regard the alleged ‘decisive facts’ specified by Serbia and Montenegro as ‘facts that existed in 1996’ for the purpose of Article 61. The Court therefore did not have to rule on the question whether ‘the legal consequences’ could indeed legitimately be deduced from the later facts; in other words, it did not have to say whether it was correct that Serbia and Montenegro had not been a party to the Statute or to the Genocide Convention in 1996.” (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 313, para. 87.) 112. In a subsequent paragraph of the 2003 Judgment on the Application for revision of the 1996 Judgment, the Court had stated: “It follows from the foregoing that it has not been established that the request of the FRY is based upon the discovery of ‘some fact’ which was ‘when the judgment was given, unknown to the Court and also to the party claiming revision’. The Court therefore concludes that one of the conditions for the admissibility of an application for revision prescribed by paragraph 1 of Article 61 of the Statute has not been satisfied.” (I.C.J. Reports 2003, p. 31, para. 72.) In its 2004 decisions in the Legality of Use of Force cases the Court further commented on this finding: “The Court thus made its position clear that there could have been no retroactive modification of the situation in 2000, which would amount to a new fact, and that therefore the conditions of Article 61 were not satisfied. This, however, did not entail any finding by the Court, in the revision proceedings, as to what that situation actually was.” (Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 314, para. 89.) 113. For the purposes of the present case, it is thus clear that the Judgment of 2003 on the Application by the FRY for revision, while binding between the parties, and final and without appeal, did not contain any finding on the question whether or not that State had actually been a Member of the United Nations in 1993. The question of the status of the FRY in 1993 formed no part of the issues upon which the Court pronounced judgment when dismissing that Application. (5) The principle of res judicata 114. The Court will now consider the principle of res judicata, and its application to the 1996 Judgment in this case. The Applicant asserts that the 1996 Judgment, whereby the Court found that it had jurisdiction under the Genocide Convention, “enjoys the authority of res judicata and is not susceptible of appeal” and that “any ruling whereby the Court reversed the 1996 Judgment . . . would be incompatible both with the res judicata principle and with Articles 59, 60 and 61 of the Statute”. The Applicant submits that, like its judgments on the merits, “the Court’s decisions on jurisdiction are res judicata”. It further observes that, pursuant to Article 60 of the Statute, the Court’s 1996 Judgment is “final and without appeal” subject only to the possibility of a request for interpretation and revision; and the FRY’s request for revision was rejected by the Court in its Judgment of 3 February 2003. The Respondent contends that jurisdiction once upheld may be challenged by new objections; and considers that this does not contravene the principle of res judicata or the wording of Article 79 of the Rules of Court. It emphasizes “the right and duty of the Court to act proprio motu” to examine its jurisdiction, mentioned in the case of the Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan) (see paragraph 118 below), and contends that the Court cannot “forfeit” that right by not having itself raised the issue in the preliminary objections phase. 115. There is no dispute between the Parties as to the existence of the principle of res judicata even if they interpret it differently as regards judgments deciding questions of jurisdiction. The fundamental character of that principle appears from the terms of the Statute of the Court and the Charter of the United Nations. The underlying character and purposes of the principle are reflected in the judicial practice of the Court. That principle signifies that the decisions of the Court are not only binding on the parties, but are final, in the sense that they cannot be reopened by the parties as regards the issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose. Article 59 of the Statute, notwithstanding its negative wording, has at its core the positive statement that the parties are bound by the decision of the Court in respect of the particular case. Article 60 of the Statute provides that the judgment is final and without appeal; Article 61 places close limits of time and substance on the ability of the parties to seek the revision of the judgment. The Court stressed those limits in 2003 when it found inadmissible the application made by Serbia and Montenegro for revision of the 1996 Judgment in the Application for Revision case (I.C.J. Reports 2003, p. 12, para. 17). 116. Two purposes, one general, the other specific, underlie the principle of res judicata, internationally as nationally. First, the stability of legal relations requires that litigation come to an end. The Court’s function, according to Article 38 of its Statute, is to “decide”, that is, to bring to an end, “such disputes as are submitted to it”. Secondly, it is in the interest of each party that an issue which has already been adjudicated in favour of that party be not argued again. Article 60 of the Statute articulates this finality of judgments. Depriving a litigant of the benefit of a judgment it has already obtained must in general be seen as a breach of the principles governing the legal settlement of disputes. 117. It has however been suggested by the Respondent that a distinction may be drawn between the application of the principle of res judicata to judgments given on the merits of a case, and judgments determining the Court’s jurisdiction, in response to preliminary objections; specifically, the Respondent contends that “decisions on preliminary objections do not and cannot have the same consequences as decisions on the merits”. The Court will however observe that the decision on questions of jurisdiction, pursuant to Article 36, paragraph 6, of the Statute, is given by a judgment, and Article 60 of the Statute provides that “[t]he judgment is final and without appeal”, without distinguishing between judgments on jurisdiction and admissibility, and judgments on the merits. In its Judgment of 25 March 1999 on the request for interpretation of the Judgment of 11 June 1998 in the case of the Land and Maritime Boundary between Cameroon and Nigeria, the Court expressly recognized that the 1998 Judgment, given on a number of preliminary objections to jurisdiction and admissibility, constituted res judicata, so that the Court could not consider a submission inconsistent with that judgment (Judgment, I.C.J. Reports 1999 (I), p. 39, para. 16). Similarly, in its Judgment of 3 February 2003 in the Application for Revision case, the Court, when it began by examining whether the conditions for the opening of the revision procedure, laid down by Article 61 of the Statute, were satisfied, undoubtedly recognized that an application could be made for revision of a judgment on preliminary objections; this could in turn only derive from a recognition that such a judgment is “final and without appeal”. Furthermore, the contention put forward by the Respondent would signify that the principle of res judicata would not prevent a judgment dismissing a preliminary objection from remaining open to further challenge indefinitely, while a judgment upholding such an objection, and putting an end to the case, would in the nature of things be final and determinative as regards that specific case. 118. The Court recalls that, as it has stated in the case of the Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), it “must however always be satisfied that it has jurisdiction, and must if necessary go into that matter proprio motu” (Judgment, I.C.J. Reports 1972, p. 52, para. 13). That decision in its context (in a case in which there was no question of reopening a previous decision of the Court) does not support the Respondent’s contention. It does not signify that jurisdictional decisions remain reviewable indefinitely, nor that the Court may, proprio motu or otherwise, reopen matters already decided with the force of res judicata. The Respondent has argued that there is a principle that “an international court may consider or reconsider the issue of jurisdiction at any stage of the proceedings”. It has referred in this connection both to the dictum just cited from the Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), and to the Corfu Channel (United Kingdom v. Albania) case. It is correct that the Court, having in the first phase of that case rejected Albania’s preliminary objection to jurisdiction, and having decided that proceedings on the merits were to continue (Preliminary Objection, Judgment, I.C.J. Reports 1947-1948, p. 15), did at the merits stage consider and rule on a challenge to its jurisdiction, in particular whether it had jurisdiction to assess compensation (I.C.J. Reports 1949, pp. 23-26; 171). But no reconsideration at all by the Court of its earlier Judgment was entailed in this because, following that earlier Judgment, the Parties had concluded a special agreement submitting to the Court, inter alia, the question of compensation. The later challenge to jurisdiction concerned only the scope of the jurisdiction conferred by that subsequent agreement. 119. The Respondent also invokes certain international conventions and the rules of other international tribunals. It is true that the European Court of Human Rights may reject, at any stage of the proceedings, an application which it considers inadmissible; and the International Criminal Court may, in exceptional circumstances, permit the admissibility of a case or the jurisdiction of the Court to be challenged after the commencement of the trial. However, these specific authorizations in the instruments governing certain other tribunals reflect their particular admissibility procedures, which are not identical with the procedures of the Court in the field of jurisdiction. They thus do not support the view that there exists a general principle which would apply to the Court, whose Statute not merely contains no such provision, but declares, in Article 60, the res judicata principle without exception. The Respondent has also cited certain jurisprudence of the European Court of Human Rights, and an arbitral decision of the German-Polish Mixed Arbitral Tribunal (von Tiedemann case); but, in the view of the Court, these too, being based on their particular facts, and the nature of the jurisdictions involved, do not indicate the existence of a principle of sufficient generality and weight to override the clear provisions of the Court’s Statute, and the principle of res judicata. 120. This does not however mean that, should a party to a case believe that elements have come to light subsequent to the decision of the Court which tend to show that the Court’s conclusions may have been based on incorrect or insufficient facts, the decision must remain final, even if it is in apparent contradiction to reality. The Statute provides for only one procedure in such an event: the procedure under Article 61, which offers the possibility for the revision of judgments, subject to the restrictions stated in that Article. In the interests of the stability of legal relations, those restrictions must be rigorously applied. As noted above (paragraph 110) the FRY’s Application for revision of the 1996 Judgment in this case was dismissed, as not meeting the conditions of Article 61. Subject only to this possibility of revision, the applicable principle is res judicata pro veritate habetur, that is to say that the findings of a judgment are, for the purposes of the case and between the parties, to be taken as correct, and may not be reopened on the basis of claims that doubt has been thrown on them by subsequent events. (6) Application of the principle of res judicata to the 1996 Judgment 121. In the light of these considerations, the Court reverts to the effect and significance of the 1996 Judgment. That Judgment was essentially addressed, so far as questions of jurisdiction were concerned, to the question of the Court’s jurisdiction under the Genocide Convention. It resolved in particular certain questions that had been raised as to the status of Bosnia and Herzegovina in relation to the Convention; as regards the FRY, the Judgment stated simply as follows: “the former Socialist Federal Republic of Yugoslavia . . . signed the Genocide Convention on 11 December 1948 and deposited its instrument of ratification, without reservation, on 29 August 1950. At the time of the proclamation of the Federal Republic of Yugoslavia, on 27 April 1992, a formal declaration was adopted on its behalf to the effect that: ‘The Federal Republic of Yugoslavia, continuing the State, international legal and political personality of the Socialist Federal Republic of Yugoslavia, shall strictly abide by all the commitments that the Socialist Federal Republic of Yugoslavia assumed internationally.’ This intention thus expressed by Yugoslavia to remain bound by the international treaties to which the former Yugoslavia was party was confirmed in an official Note of 27 April 1992 from the Permanent Mission of Yugoslavia to the United Nations, addressed to the Secretary-General. The Court observes, furthermore, that it has not been contested that Yugoslavia was party to the Genocide Convention. Thus, Yugoslavia was bound by the provisions of the Convention on the date of the filing of the Application in the present case, namely, on 20 March 1993.” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 610, para. 17.) 122. Nothing was stated in the 1996 Judgment about the status of the FRY in relation to the United Nations, or the question whether it could participate in proceedings before the Court; for the reasons already mentioned above (paragraph 106), both Parties had chosen to refrain from asking for a decision on these matters. The Court however considers it necessary to emphasize that the question whether a State may properly come before the Court, on the basis of the provisions of the Statute, whether it be classified as a matter of capacity to be a party to the proceedings or as an aspect of jurisdiction ratione personae, is a matter which precedes that of jurisdiction ratione materiae, that is, whether that State has consented to the settlement by the Court of the specific dispute brought before it. The question is in fact one which the Court is bound to raise and examine, if necessary, ex officio, and if appropriate after notification to the parties. Thus if the Court considers that, in a particular case, the conditions concerning the capacity of the parties to appear before it are not satisfied, while the conditions of its jurisdiction ratione materiae are, it should, even if the question has not been raised by the parties, find that the former conditions are not met, and conclude that, for that reason, it could not have jurisdiction to decide the merits. 123. The operative part of a judgment of the Court possesses the force of res judicata. The operative part of the 1996 Judgment stated, in paragraph 47 (2) (a), that the Court found “that, on the basis of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, it has jurisdiction to decide upon the dispute”. That jurisdiction is thus established with the full weight of the Court’s judicial authority. For a party to assert today that, at the date the 1996 Judgment was given, the Court had no power to give it, because one of the parties can now be seen to have been unable to come before the Court is, for the reason given in the preceding paragraph, to call in question the force as res judicata of the operative clause of the Judgment. At first sight, therefore, the Court need not examine the Respondent’s objection to jurisdiction based on its contention as to its lack of status in 1993. 124. The Respondent has however advanced a number of arguments tending to show that the 1996 Judgment is not conclusive on the matter, and the Court will now examine these. The passage just quoted from the 1996 Judgment is of course not the sole provision of the operative clause of that Judgment: as, the Applicant has noted, the Court first dismissed seriatim the specific preliminary objections raised (and not withdrawn) by the Respondent; it then made the finding quoted in paragraph 123 above; and finally it dismissed certain additional bases of jurisdiction invoked by the Applicant. The Respondent suggests that, for the purposes of applying the principle of res judicata to a judgment of this kind on preliminary objections, the operative clause (dispositif) to be taken into account and given the force of res judicata is the decision rejecting specified preliminary objections, rather than “the broad ascertainment upholding jurisdiction”. The Respondent has drawn attention to the provisions of Article 79, paragraph 7, of the 1978 Rules of Court, which provides that the judgment on preliminary objections shall, in respect of each objection “either uphold the objection, reject it, or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character”. The Respondent suggests therefore that only the clauses of a judgment on preliminary objections that are directed to these ends have the force of res judicata, which is, it contends, consistent with the view that new objections may be raised subsequently. 125. The Court does not however consider that it was the purpose of Article 79 of the Rules of Court to limit the extent of the force of res judicata attaching to a judgment on preliminary objections, nor that, in the case of such judgment, such force is necessarily limited to the clauses of the dispositif specifically rejecting particular objections. There are many examples in the Court’s jurisprudence of decisions on preliminary objections which contain a general finding that the Court has jurisdiction, or that the application is admissible, as the case may be; and it would be going too far to suppose that all of these are necessarily superfluous conclusions. In the view of the Court, if any question arises as to the scope of res judicata attaching to a judgment, it must be determined in each case having regard to the context in which the judgment was given (cf. Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, pp. 218-219, para. 48). 126. For this purpose, in respect of a particular judgment it may be necessary to distinguish between, first, the issues which have been decided with the force of res judicata, or which are necessarily entailed in the decision of those issues; secondly any peripheral or subsidiary matters, or obiter dicta; and finally matters which have not been ruled upon at all. Thus an application for interpretation of a judgment under Article 60 of the Statute may well require the Court to settle “[a] difference of opinion [between the parties] as to whether a particular point has or has not been decided with binding force” (Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J. Series A, No. 13, pp. 11-12). If a matter has not in fact been determined, expressly or by necessary implication, then no force of res judicata attaches to it; and a general finding may have to be read in context in order to ascertain whether a particular matter is or is not contained in it. 127. In particular, the fact that a judgment may, in addition to rejecting specific preliminary objections, contain a finding that “the Court has jurisdiction” in the case does not necessarily prevent subsequent examination of any jurisdictional issues later arising that have not been resolved, with the force of res judicata, by such judgment. The Parties have each referred in this connection to the successive decisions in the Corfu Channel case, which the Court has already considered above (paragraph 118). Mention may also be made of the judgments on the merits in the two cases concerning Fisheries Jurisdiction (United Kingdom v. Iceland; Federal Republic of Germany v. Iceland) (I.C.J. Reports 1974, p. 20, para. 42; pp. 203-204, para. 74), which dealt with minor issues of jurisdiction despite an express finding of jurisdiction in previous judgments (I.C.J. Reports 1973, p. 22, para. 46; p. 66, para. 46). Even where the Court has, in a preliminary judgment, specifically reserved certain matters of jurisdiction for later decision, the judgment may nevertheless contain a finding that “the Court has jurisdiction” in the case, this being understood as being subject to the matters reserved (see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, Reports 1984, p. 442, para. 113 (1) (c), and pp. 425-426, para. 76; cf. also, in connection with an objection to admissibility, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Libyan Arab Jamahiriya v. United States of America), I.C.J. Reports 1998, 29, para. 51 and pp. 30-31, paras. 53 (2) (b) and 53 (3); p. 134, para. 50 and p. 156, paras. 53 (2) (b) and 53 (3)). 128. On the other hand, the fact that the Court has in these past cases dealt with jurisdictional issues after having delivered a judgment on jurisdiction does not support the contention that such a judgment can be reopened at any time, so as to permit reconsideration of issues already settled with the force of res judicata. The essential difference between the cases mentioned in the previous paragraph and the present case is this: the jurisdictional issues examined at a late stage in those cases were such that the decision on them would not contradict the finding of jurisdiction made in the earlier judgment. In the Fisheries Jurisdiction cases, the issues raised related to the extent of the jurisdiction already established in principle with the force of res judicata; in the Military and Paramilitary Activities case, the Court had clearly indicated in the 1984 Judgment that its finding in favour of jurisdiction did not extend to a definitive ruling on the interpretation of the United States reservation to its optional clause declaration. By contrast, the contentions of the Respondent in the present case would, if upheld, effectively reverse the 1996 Judgment; that indeed is their purpose. 129. The Respondent has contended that the issue whether the FRY had access to the Court under Article 35 of the Statute has in fact never been decided in the present case, so that no barrier of res judicata would prevent the Court from examining that issue at the present stage of the proceedings. It has drawn attention to the fact that when commenting on the 1996 Judgment, in its 2004 Judgments in the cases concerning the Legality of Use of Force, the Court observed that “[t]he question of the status of the Federal Republic of Yugoslavia in relation to Article 35 of the Statute was not raised and the Court saw no reason to examine it” (see, for example, Legality of Use of Force (Serbia and Montenegro v. Belgium), I.C.J. Reports 2004, p. 311, para. 82), and that “in its pronouncements in incidental proceedings” in the present case, the Court “did not commit itself to a definitive position on the issue of the legal status of the Federal Republic of Yugoslavia in relation to the Charter and the Statute” (ibid., pp. 308-309, para. 74). 130. That does not however signify that in 1996 the Court was unaware of the fact that the solution adopted in the United Nations to the question of continuation of the membership of the SFRY “[was] not free from legal difficulties”, as the Court had noted in its Order of 8 April 1993 indicating provisional measures in the case (I.C.J. Reports 1993, p. 14, para. 18; above, paragraph 105). The FRY was, at the time of the proceedings on its preliminary objections culminating in the 1996 Judgment, maintaining that it was the continuator State of the SFRY. As the Court indicated in its Judgments in the cases concerning the Legality of Use of Force, “No specific assertion was made in the Application [of 1993, in the present case] that the Court was open to Serbia and Montenegro under Article 35, paragraph 1, of the Statute of the Court, but it was later made clear that the Applicant claimed to be a Member of the United Nations and thus a party to the Statute of the Court, by virtue of Article 93, paragraph 1, of the Charter, at the time of filing of the Application . . . [T]his position was expressly stated in the Memorial filed by Serbia and Montenegro on 4 January 2000 . . .” (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 299, para. 47.) The question whether the FRY was a continuator or a successor State of the SFRY was mentioned in the Memorial of Bosnia and Herzegovina. The view of Bosnia and Herzegovina was that, while the FRY was not a Member of the United Nations, as a successor State of the SFRY which had expressly declared that it would abide by the international commitments of the SFRY, it was nevertheless a party to the Statute. It is also essential, when examining the text of the 1996 Judgment, to take note of the context in which it was delivered, in particular as regards the contemporary state of relations between the Respondent and the United Nations, as recounted in paragraphs 88 to 99 above. 131. The “legal difficulties” referred to were finally dissipated when in 2000 the FRY abandoned its former insistence that it was the continuator of the SFRY, and applied for membership in the United Nations (paragraph 98 above). As the Court observed in its 2004 Judgments in the cases concerning the Legality of Use of Force, “the significance of this new development in 2000 is that it has clarified the thus far amorphous legal situation concerning the status of the Federal Republic of Yugoslavia vis-à-vis the United Nations. It is in that sense that the situation that the Court now faces in relation to Serbia and Montenegro is manifestly different from that which it faced in 1999. If, at that time, the Court had had to determine definitively the status of the Applicant vis-à-vis the United Nations, its task of giving such a determination would have been complicated by the legal situation, which was shrouded in uncertainties relating to that status. However, from the vantage point from which the Court now looks at the legal situation, and in light of the legal consequences of the new development since 1 November 2000, the Court is led to the conclusion that Serbia and Montenegro was not a Member of the United Nations, and in that capacity a State party to the Statute of the International Court of Justice, at the time of filing its Application to institute the present proceedings before the Court on 29 April 1999.” (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, pp. 310-311, para. 79.) As the Court here recognized, in 1999 ⎯ and even more so in 1996 ⎯ it was by no means so clear as the Court found it to be in 2004 that the Respondent was not a Member of the United Nations at the relevant time. The inconsistencies of approach expressed by the various United Nations organs are apparent from the passages quoted in paragraphs 91 to 96 above. 132. As already noted, the legal complications of the position of the Respondent in relation to the United Nations were not specifically mentioned in the 1996 Judgment. The Court stated, as mentioned in paragraph 121 above, that “Yugoslavia was bound by the provisions of the [Genocide] Convention on the date of the filing of the Application in the present case” (I.C.J. Reports 1996 (II), p. 610, para. 17), and found that “on the basis of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, it has jurisdiction to adjudicate upon the dispute” (ibid., p. 623, para. 47 (2) (a)). Since, as observed above, the question of a State’s capacity to be a party to proceedings is a matter which precedes that of jurisdiction ratione materiae, and one which the Court must, if necessary, raise ex officio (see paragraph 122 above), this finding must as a matter of construction be understood, by necessary implication, to mean that the Court at that time perceived the Respondent as being in a position to participate in cases before the Court. On that basis, it proceeded to make a finding on jurisdiction which would have the force of res judicata. The Court does not need, for the purpose of the present proceedings, to go behind that finding and consider on what basis the Court was able to satisfy itself on the point. Whether the Parties classify the matter as one of “access to the Court” or of “jurisdiction ratione personae”, the fact remains that the Court could not have proceeded to determine the merits unless the Respondent had had the capacity under the Statute to be a party to proceedings before the Court. 133. In the view of the Court, the express finding in the 1996 Judgment that the Court had jurisdiction in the case ratione materiae, on the basis of Article IX of the Genocide Convention, seen in its context, is a finding which is only consistent, in law and logic, with the proposition that, in relation to both Parties, it had jurisdiction ratione personae in its comprehensive sense, that is to say, that the status of each of them was such as to comply with the provisions of the Statute concerning the capacity of States to be parties before the Court. As regards Bosnia and Herzegovina, there was no question but that it was a party to the Statute at the date of filing its application instituting proceedings; and in relation to the Convention, the Court found that it “could . . . become a party to the Convention” from the time of its admission to the United Nations (I.C.J. Reports 1996 (II), p. 611, para. 19), and had in fact done so. As regards the FRY, the Court found that it “was bound by the provisions of the Convention”, i.e. was a party thereto, “on the date of the filing of the Application” (ibid., p. 610, para 17); in this respect the Court took note of the declaration made by the FRY on 27 April 1992, set out in paragraph 89 above, whereby the FRY “continuing the State, international legal and political personality” of the SFRY, declared that it would “strictly abide by” the international commitments of the SFRY. The determination by the Court that it had jurisdiction under the Genocide Convention is thus to be interpreted as incorporating a determination that all the conditions relating to the capacity of the Parties to appear before it had been met. 134. It has been suggested by the Respondent that the Court’s finding of jurisdiction in the 1996 Judgment was based merely upon an assumption: an assumption of continuity between the SFRY and the FRY. It has drawn attention to passages, already referred to above (paragraph 129), in the Judgments in the Legality of Use of Force cases, to the effect that in 1996 the Court saw no reason to examine the question of access, and that, in its pronouncements in incidental proceedings, the Court did not commit itself to a definitive position on the issue of the legal status of the Respondent. 135. That the FRY had the capacity to appear before the Court in accordance with the Statute was an element in the reasoning of the 1996 Judgment which can ⎯ and indeed must ⎯ be read into the Judgment as a matter of logical construction. That element is not one which can at any time be reopened and re-examined, for the reasons already stated above. As regards the passages in the 2004 Judgments relied on by the Respondent, it should be borne in mind that the concern of the Court was not then with the scope of res judicata of the 1996 Judgment, since in any event such res judicata could not extend to the proceedings in the cases that were then before it, between different parties. It was simply appropriate in 2004 for the Court to consider whether there was an expressly stated finding in another case that would throw light on the matters before it. No such express finding having been shown to exist, the Court in 2004 did not, as it has in the present case, have to go on to consider what might be the unstated foundations of a judgment given in another case, between different parties. 136. The Court thus considers that the 1996 Judgment contained a finding, whether it be regarded as one of jurisdiction ratione personae, or as one anterior to questions of jurisdiction, which was necessary as a matter of logical construction, and related to the question of the FRY’s capacity to appear before the Court under the Statute. The force of res judicata attaching to that judgment thus extends to that particular finding. 137. However it has been argued by the Respondent that even were that so, “the fundamental nature of access as a precondition for the exercise of the Court’s judicial function means that positive findings on access cannot be taken as definitive and final until the final judgment is rendered in proceedings, because otherwise it would be possible that the Court renders its final decision with respect to a party over which it cannot exercise [its] judicial function. In other words, access is so fundamental that, until the final judgment, it overrides the principle of res judicata. Thus, even if the 1996 Judgment had made a finding on access, quod non, that would not be a bar for the Court to re-examine this issue until the end of the proceedings.” A similar argument advanced by the Respondent is based on the principle that the jurisdiction of the Court derives from a treaty, namely the Statute of the Court; the Respondent questions whether the Statute could have endowed the 1996 Judgment with any effects at all, since the Respondent was, it alleges, not a party to the Statute. Counsel for the Respondent argued that “Today it is known that in 1996 when the decision on preliminary objections was rendered, the Respondent was not a party to the Statute. Thus, there was no foothold, Articles 36 (6), 59, and 60 did not represent a binding treaty provision providing a possible basis for deciding on jurisdiction with res judicata effects.” 138. It appears to the Court that these contentions are inconsistent with the nature of the principle of res judicata. That principle signifies that once the Court has made a determination, whether on a matter of the merits of a dispute brought before it, or on a question of its own jurisdiction, that determination is definitive both for the parties to the case, in respect of the case (Article 59 of the Statute), and for the Court itself in the context of that case. However fundamental the question of the capacity of States to be parties in cases before the Court may be, it remains a question to be determined by the Court, in accordance with Article 36, paragraph 6, of the Statute, and once a finding in favour of jurisdiction has been pronounced with the force of res judicata, it is not open to question or re-examination, except by way of revision under Article 61 of the Statute. There is thus, as a matter of law, no possibility that the Court might render “its final decision with respect to a party over which it cannot exercise its judicial function”, because the question whether a State is or is not a party subject to the jurisdiction of the Court is one which is reserved for the sole and authoritative decision of the Court. 139. Counsel for the Respondent contended further that, in the circumstances of the present case, reliance on the res judicata principle “would justify the Court’s ultra vires exercise of its judicial functions contrary to the mandatory requirements of the Statute”. However, the operation of the “mandatory requirements of the Statute” falls to be determined by the Court in each case before it; and once the Court has determined, with the force of res judicata, that it has jurisdiction, then for the purposes of that case no question of ultra vires action can arise, the Court having sole competence to determine such matters under the Statute. For the Court res judicata pro veritate habetur, and the judicial truth within the context of a case is as the Court has determined it, subject only to the provision in the Statute for revision of judgments. This result is required by the nature of the judicial function, and the universally recognized need for stability of legal relations. (7) Conclusion: jurisdiction affirmed 140. The Court accordingly concludes that, in respect of the contention that the Respondent was not, on the date of filing of the Application instituting proceedings, a State having the capacity to come before the Court under the Statute, the principle of res judicata precludes any reopening of the decision embodied in the 1996 Judgment. The Respondent has however also argued that the 1996 Judgment is not res judicata as to the further question whether the FRY was, at the time of institution of proceedings, a party to the Genocide Convention, and has sought to show that at that time it was not, and could not have been, such a party. The Court however considers that the reasons given above for holding that the 1996 Judgment settles the question of jurisdiction in this case with the force of res judicata are applicable a fortiori as regards this contention, since on this point the 1996 Judgment was quite specific, as it was not on the question of capacity to come before the Court. The Court does not therefore find it necessary to examine the argument of the Applicant that the failure of the Respondent to advance at the time the reasons why it now contends that it was not a party to the Genocide Convention might raise considerations of estoppel, or forum prorogatum (cf. paragraphs 85 and 101 above). The Court thus concludes that, as stated in the 1996 Judgment, it has jurisdiction, under Article IX of the Genocide Convention, to adjudicate upon the dispute brought before it by the Application filed on 20 March 1993. It follows from the above that the Court does not find it necessary to consider the questions, extensively addressed by the Parties, of the status of the Respondent under the Charter of the United Nations and the Statute of the Court, and its position in relation to the Genocide Convention at the time of the filing of the Application. 141. There has been some reference in the Parties’ arguments before the Court to the question whether Article 35, paragraphs 1 and 2, of the Statute apply equally to applicants and to respondents. This matter, being one of interpretation of the Statute, would be one for the Court to determine. However, in the light of the conclusion that the Court has reached as to the res judicata status of the 1996 decision, it does not find at present the necessity to do so. IV. The applicable law: the Convention on the Prevention and Punishment of the Crime of Genocide (1) The Convention in brief 142. The Contracting Parties to the Convention, adopted on 9 December 1948, offer the following reasons for agreeing to its text: “The Contracting Parties, Having considered the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world, Recognizing that at all periods of history genocide has inflicted great losses on humanity, and Being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required, Hereby agree as hereinafter provided . . .” 143. Under Article I “[t]he Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish”. Article II defines genocide in these terms: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.” Article III provides as follows: “The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.” 144. According to Article IV, persons committing any of those acts shall be punished whether they are constitutionally responsible rulers, public officials or private individuals. Article V requires the parties to enact the necessary legislation to give effect to the Convention, and, in particular, to provide effective penalties for persons guilty of genocide or other acts enumerated in Article III. Article VI provides that “[p]ersons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction”. Article VII provides for extradition. 145. Under Article VIII “Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III.” 146. Article IX provides for certain disputes to be submitted to the Court: “Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.” The remaining ten Articles are final clauses dealing with such matters as parties to the Convention and its entry into force. 147. The jurisdiction of the Court in this case is based solely on Article IX of the Convention. All the other grounds of jurisdiction invoked by the Applicant were rejected in the 1996 Judgment on jurisdiction (I.C.J. Reports 1996 (II), pp. 617-621, paras. 35-41). It follows that the Court may rule only on the disputes between the Parties to which that provision refers. The Parties disagree on whether the Court finally decided the scope and meaning of that provision in its 1996 Judgment and, if it did not, on the matters over which the Court has jurisdiction under that provision. The Court rules on those two matters in following sections of this Judgment. It has no power to rule on alleged breaches of other obligations under international law, not amounting to genocide, particularly those protecting human rights in armed conflict. That is so even if the alleged breaches are of obligations under peremptory norms, or of obligations which protect essential humanitarian values, and which may be owed erga omnes. 148. As it has in other cases, the Court recalls the fundamental distinction between the existence and binding force of obligations arising under international law and the existence of a court or tribunal with jurisdiction to resolve disputes about compliance with those obligations. The fact that there is not such a court or tribunal does not mean that the obligations do not exist. They retain their validity and legal force. States are required to fulfil their obligations under international law, including international humanitarian law, and they remain responsible for acts contrary to international law which are attributable to them (e.g. case concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the Application, Judgment, I.C.J. Reports 2006, pp. 52-53, para. 127). 149. The jurisdiction of the Court is founded on Article IX of the Convention, and the disputes subject to that jurisdiction are those “relating to the interpretation, application or fulfilment” of the Convention, but it does not follow that the Convention stands alone. In order to determine whether the Respondent breached its obligation under the Convention, as claimed by the Applicant, and, if a breach was committed, to determine its legal consequences, the Court will have recourse not only to the Convention itself, but also to the rules of general international law on treaty interpretation and on responsibility of States for internationally wrongful acts. (2) The Court’s 1996 decision about the scope and meaning of Article IX 150. According to the Applicant, the Court in 1996 at the preliminary objections stage decided that it had jurisdiction under Article IX of the Convention to adjudicate upon the responsibility of the respondent State, as indicated in that Article, “for genocide or any of the other acts enumerated in article III”, and that that reference “does not exclude any form of State responsibility”. The issue, it says, is res judicata. The Respondent supports a narrower interpretation of the Convention: the Court’s jurisdiction is confined to giving a declaratory judgment relating to breaches of the duties to prevent and punish the commission of genocide by individuals. 151. The Respondent accepts that the first, wider, interpretation “was preferred by the majority of the Court in the preliminary objections phase” and quotes the following passage in the Judgment: “The Court now comes to the second proposition advanced by Yugoslavia [in support of one of its preliminary objections], regarding the type of State responsibility envisaged in Article IX of the Convention. According to Yugoslavia, that Article would only cover the responsibility flowing from the failure of a State to fulfil its obligations of prevention and punishment as contemplated by Articles V, VI and VII; on the other hand, the responsibility of a State for an act of genocide perpetrated by the State itself would be excluded from the scope of the Convention. The Court would observe that the reference to Article IX to ‘the responsibility of a State for genocide or for any of the other acts enumerated in Article III’, does not exclude any form of State responsibility. Nor is the responsibility of a State for acts of its organs excluded by Article IV of the Convention, which contemplates the commission of an act of genocide by ‘rulers’ or ‘public officials’. In the light of the foregoing, the Court considers that it must reject the fifth preliminary objection of Yugoslavia. It would moreover observe that it is sufficiently apparent from the very terms of that objection that the Parties not only differ with respect to the facts of the case, their imputability and the applicability to them of the provisions of the Genocide Convention, but are moreover in disagreement with respect to the meaning and legal scope of several of those provisions, including Article IX. For the Court, there is accordingly no doubt that there exists a dispute between them relating to ‘the interpretation, application or fulfilment of the . . . Convention, including . . . the responsibility of a State for genocide . . .’, according to the form of words employed by that latter provision (cf. Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, pp. 27-32).” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), pp. 616-617, paras. 32-33; emphasis now added to 1996 text.) The Applicant relies in particular on the sentences in paragraph 32 which have been emphasized in the above quotation. The Respondent submits that “this expression of opinion is of marked brevity and is contingent upon the dismissal of the preliminary objection based upon the existence or otherwise of a dispute relating to the interpretation of the Genocide Convention. The interpretation adopted in this provisional mode by the Court is not buttressed by any reference to the substantial preparatory work of the Convention. In the circumstances, there is no reason of principle or consideration of common sense indicating that the issue of interpretation is no longer open.” While submitting that the Court determined the issue and spoke emphatically on the matter in 1996 the Applicant also says that this present phase of the case “will provide an additional opportunity for this Court to rule on [the] important matter, not only for the guidance of the Parties here before you, but for the benefit of future generations that should not have to fear the immunity of States from responsibility for their genocidal acts”. 152. The Court has already examined above the question of the authority of res judicata attaching to the 1996 Judgment, and indicated that it cannot reopen issues decided with that authority. Whether or not the issue now raised by the Respondent falls in that category, the Court observes that the final part of paragraph 33 of that Judgment, quoted above, must be taken as indicating that “the meaning and legal scope” of Article IX and of other provisions of the Convention remain in dispute. In particular a dispute “exists” about whether the only obligations of the Contracting Parties for the breach of which they may be held responsible under the Convention are to legislate, and to prosecute or extradite, or whether the obligations extend to the obligation not to commit genocide and the other acts enumerated in Article III. That dispute “exists” and was left by the Court for resolution at the merits stage. In these circumstances, and taking into account the positions of the Parties, the Court will determine at this stage whether the obligations of the Parties under the Convention do so extend. That is to say, the Court will decide “the meaning and legal scope” of several provisions of the Convention, including Article IX with its reference to “the responsibility of a State for genocide or any of the other acts enumerated in Article III”. (3) The Court’s 1996 decision about the territorial scope of the Convention 153. A second issue about the res judicata effect of the 1996 Judgment concerns the territorial limits, if any, on the obligations of the States parties to prevent and punish genocide. In support of one of its preliminary objections the Respondent argued that it did not exercise jurisdiction over the Applicant’s territory at the relevant time. In the final sentence of its reasons for rejecting this argument the Court said this: “[t]he Court notes that the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention” (I.C.J. Reports 1996 (II), p. 616, para. 31). 154. The Applicant suggests that the Court in that sentence ruled that the obligation extends without territorial limit. The Court does not state the obligation in that positive way. The Court does not say that the obligation is “territorially unlimited by the Convention”. Further, earlier in the paragraph, it had quoted from Article VI (about the obligation of any State in the territory of which the act was committed to prosecute) as “the only provision relevant to” territorial “problems” related to the application of the Convention. The quoted sentence is therefore to be understood as relating to the undertaking stated in Article I. The Court did not in 1996 rule on the territorial scope of each particular obligation arising under the Convention. Accordingly the Court has still to rule on that matter. It is not res judicata. (4) The obligations imposed by the Convention on the Contracting Parties 155. The Applicant, in the words of its Agent, contends that “[t]his case is about State responsibility and seeks to establish the responsibilities of a State which, through its leadership, through its organs, committed the most brutal violations of one of the most sacred instruments of international law”. The Applicant has emphasized that in its view, the Genocide Convention “created a universal, treaty-based concept of State responsibility”, and that “[i]t is State responsibility for genocide that this legal proceeding is all about”. It relies in this respect on Article IX of the Convention, which, it argues, “quite explicitly impose[s] on States a direct responsibility themselves not to commit genocide or to aid in the commission of genocide”. As to the obligation of prevention under Article I, a breach of that obligation, according to the Applicant, “is established ⎯ it might be said is ‘eclipsed’ ⎯ by the fact that [the Respondent] is itself responsible for the genocide committed; . . . a State which commits genocide has not fulfilled its commitment to prevent it” (emphasis in the original). The argument moves on from alleged breaches of Article I to “violations [by the Respondent] of its obligations under Article III . . . to which express reference is made in Article IX, violations which stand at the heart of our case. This fundamental provision establishes the obligations whose violation engages the responsibility of States parties.” It follows that, in the contention of the Applicant, the Court has jurisdiction under Article IX over alleged violations by a Contracting Party of those obligations. 156. The Respondent contends to the contrary that “the Genocide Convention does not provide for the responsibility of States for acts of genocide as such. The duties prescribed by the Convention relate to ‘the prevention and punishment of the crime of genocide’ when this crime is committed by individuals: and the provisions of Articles V and VI [about enforcement and prescription] . . . make this abundantly clear.” It argues that the Court therefore does not have jurisdiction ratione materiae under Article IX; and continues: “[t]hese provisions [Articles I, V, VI and IX] do not extend to the responsibility of a Contracting Party as such for acts of genocide but [only] to responsibility for failure to prevent or to punish acts of genocide committed by individuals within its territory or . . . its control”. The sole remedy in respect of that failure would, in the Respondent’s view, be a declaratory judgment. 157. As a subsidiary argument, the Respondent also contended that “for a State to be responsible under the Genocide Convention, the facts must first be established. As genocide is a crime, it can only be established in accordance with the rules of criminal law, under which the first requirement to be met is that of individual responsibility. The State can incur responsibility only when the existence of genocide has been established beyond all reasonable doubt. In addition, it must then be shown that the person who committed the genocide can engage the responsibility of the State . . .” (This contention went on to mention responsibility based on breach of the obligation to prevent and punish, matters considered later in this Judgment.) 158. The Respondent has in addition presented what it refers to as “alternative arguments concerning solely State responsibility for breaches of Articles II and III”. Those arguments addressed the necessary conditions, especially of intent, as well as of attribution. When presenting those alternative arguments, counsel for the Respondent repeated the principal submission set out above that “the Convention does not suggest in any way that States themselves can commit genocide”. 159. The Court notes that there is no disagreement between the Parties that the reference in Article IX to disputes about “the responsibility of a State” as being among the disputes relating to the interpretation, application or fulfilment of the Convention which come within the Court’s jurisdiction, indicates that provisions of the Convention do impose obligations on States in respect of which they may, in the event of breach, incur responsibility. Articles V, VI and VII requiring legislation, in particular providing effective penalties for persons guilty of genocide and the other acts enumerated in Article III, and for the prosecution and extradition of alleged offenders are plainly among them. Because those provisions regulating punishment also have a deterrent and therefore a preventive effect or purpose, they could be regarded as meeting and indeed exhausting the undertaking to prevent the crime of genocide stated in Article I and mentioned in the title. On that basis, in support of the Respondent’s principal position, that Article would rank as merely hortatory, introductory or purposive and as preambular to those specific obligations. The remaining specific provision, Article VIII about competent organs of the United Nations taking action, may be seen as completing the system by supporting both prevention and suppression, in this case at the political level rather than as a matter of legal responsibility. 160. The Court observes that what obligations the Convention imposes upon the parties to it depends on the ordinary meaning of the terms of the Convention read in their context and in the light of its object and purpose. To confirm the meaning resulting from that process or to remove ambiguity or obscurity or a manifestly absurd or unreasonable result, the supplementary means of interpretation to which recourse may be had include the preparatory work of the Convention and the circumstances of its conclusion. Those propositions, reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, are well recognized as part of customary international law: see Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 174, para. 94; case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004, p. 48, para. 83; LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 501, para. 99; and Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 645, para. 37, and the other cases referred to in those decisions. 161. To determine what are the obligations of the Contracting Parties under the Genocide Convention, the Court will begin with the terms of its Article I. It contains two propositions. The first is the affirmation that genocide is a crime under international law. That affirmation is to be read in conjunction with the declaration that genocide is a crime under international law, unanimously adopted by the General Assembly two years earlier in its resolution 96 (I), and referred to in the Preamble to the Convention (paragraph 142, above). The affirmation recognizes the existing requirements of customary international law, a matter emphasized by the Court in 1951: “The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as ‘a crime under international law’ involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96 (I) of the General Assembly, December 11th 1946). The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the co-operation required ‘in order to liberate mankind from such an odious scourge’ (Preamble to the Convention) . . . The objects of such a convention must also be considered. The Convention was manifestly adopted for a purely humanitarian and civilizing purpose. It is indeed difficult to imagine a convention that might have this dual character to a greater degree, since its object on the one hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality.” (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23.) Later in that Opinion, the Court referred to “the moral and humanitarian principles which are its basis” (ibid., p. 24). In earlier phases of the present case the Court has also recalled resolution 96 (I) (I.C.J. Reports 1993, p. 23; see also pp. 348 and 440) and has quoted the 1951 statement (I.C.J. Reports 1996 (II), p. 616). The Court reaffirmed the 1951 and 1996 statements in its Judgment of 3 February 2006 in the case concerning Armed Activities on the Territory of the Congo (New Application 2002) (Democratic Republic of the Congo v. Rwanda), paragraph 64, when it added that the norm prohibiting genocide was assuredly a peremptory norm of international law (jus cogens). 162. Those characterizations of the prohibition on genocide and the purpose of the Convention are significant for the interpretation of the second proposition stated in Article I ⎯ the undertaking by the Contracting Parties to prevent and punish the crime of genocide, and particularly in this context the undertaking to prevent. Several features of that undertaking are significant. The ordinary meaning of the word “undertake” is to give a formal promise, to bind or engage oneself, to give a pledge or promise, to agree, to accept an obligation. It is a word regularly used in treaties setting out the obligations of the Contracting Parties (cf., for example, International Convention on the Elimination of All Forms of Racial Discrimination (7 March 1966), Article 2, para. 1; International Covenant on Civil and Political Rights (16 December 1966), Articles 2, para. 1, and 3, for example). It is not merely hortatory or purposive. The undertaking is unqualified (a matter considered later in relation to the scope of the obligation of prevention); and it is not to be read merely as an introduction to later express references to legislation, prosecution and extradition. Those features support the conclusion that Article I, in particular its undertaking to prevent, creates obligations distinct from those which appear in the subsequent Articles. That conclusion is also supported by the purely humanitarian and civilizing purpose of the Convention. 163. The conclusion is confirmed by two aspects of the preparatory work of the Convention and the circumstances of its conclusion as referred to in Article 32 of the Vienna Convention. In 1947 the United Nations General Assembly, in requesting the Economic and Social Council to submit a report and a draft convention on genocide to the Third Session of the Assembly, declared “that genocide is an international crime entailing national and international responsibility on the part of individuals and States” (A/RES/180 (II)). That duality of responsibilities is also to be seen in two other associated resolutions adopted on the same day, both directed to the newly established International Law Commission (hereinafter “the ILC”): the first on the formulation of the Nuremberg principles, concerned with the rights (Principle V) and duties of individuals, and the second on the draft declaration on the rights and duties of States (A/RES/177 and A/RES/178 (II)). The duality of responsibilities is further considered later in this Judgment (paragraphs 173-174). 164. The second feature of the drafting history emphasizes the operative and non-preambular character of Article I. The Preamble to the draft Convention, prepared by the Ad Hoc Committee on Genocide for the Third Session of the General Assembly and considered by its Sixth Committee, read in part as follows: “The High Contracting Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Being convinced that the prevention and punishment of genocide requires international co-operation, Hereby agree to prevent and punish the crime as hereinafter provided.” The first Article would have provided “[g]enocide is a crime under international law whether committed in time of peace or in time of war” (report of the Ad Hoc Committee on Genocide, 5 April to 10 May 1948, United Nations, Official Records of the Economic and Social Council, Seventh Session, Supplement No. 6, doc. E/794, pp. 2, 18). Belgium was of the view that the undertaking to prevent and punish should be made more effective by being contained in the operative part of the Convention rather than in the Preamble and proposed the following Article I to the Sixth Committee of the General Assembly: “The High Contracting Parties undertake to prevent and punish the crime of genocide.” (United Nations doc. A/C.6/217.) The Netherlands then proposed a new text of Article I combining the Ad Hoc Committee draft and the Belgian proposal with some changes: “The High Contracting Parties reaffirm that genocide is a crime under international law, which they undertake to prevent and to punish, in accordance with the following articles.” (United Nations docs. A/C.6/220; United Nations, Official Records of the General Assembly, Third Session, Part I, Sixth Committee, Summary Records of the 68th meeting, p. 45.) The Danish representative thought that Article I should be worded more effectively and proposed the deletion of the final phrase ⎯ “in accordance with the following articles” (ibid., p. 47). The Netherlands representative agreed with that suggestion (ibid., pp. 49-50). After the USSR’s proposal to delete Article I was rejected by 36 votes to 8 with 5 abstentions and its proposal to transfer its various points to the Preamble was rejected by 40 votes to 8, and the phrase “whether committed in time of peace or of war” was inserted by 30 votes to 7 with 6 abstentions, the amended text of Article I was adopted by 37 votes to 3 with 2 abstentions (ibid., pp. 51 and 53). 165. For the Court both changes ⎯ the movement of the undertaking from the Preamble to the first operative Article and the removal of the linking clause (“in accordance with the following articles”) ⎯ confirm that Article I does impose distinct obligations over and above those imposed by other Articles of the Convention. In particular, the Contracting Parties have a direct obligation to prevent genocide. 166. The Court next considers whether the Parties are also under an obligation, by virtue of the Convention, not to commit genocide themselves. It must be observed at the outset that such an obligation is not expressly imposed by the actual terms of the Convention. The Applicant has however advanced as its main argument that such an obligation is imposed by Article IX, which confers on the Court jurisdiction over disputes “including those relating to the responsibility of a State for genocide or any of the other acts enumerated in Article III”. Since Article IX is essentially a jurisdictional provision, the Court considers that it should first ascertain whether the substantive obligation on States not to commit genocide may flow from the other provisions of the Convention. Under Article I the States parties are bound to prevent such an act, which it describes as “a crime under international law”, being committed. The Article does not expressis verbis require States to refrain from themselves committing genocide. However, in the view of the Court, taking into account the established purpose of the Convention, the effect of Article I is to prohibit States from themselves committing genocide. Such a prohibition follows, first, from the fact that the Article categorizes genocide as “a crime under international law”: by agreeing to such a categorization, the States parties must logically be undertaking not to commit the act so described. Secondly, it follows from the expressly stated obligation to prevent the commission of acts of genocide. That obligation requires the States parties, inter alia, to employ the means at their disposal, in circumstances to be described more specifically later in this Judgment, to prevent persons or groups not directly under their authority from committing an act of genocide or any of the other acts mentioned in Article III. It would be paradoxical if States were thus under an obligation to prevent, so far as within their power, commission of genocide by persons over whom they have a certain influence, but were not forbidden to commit such acts through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State concerned under international law. In short, the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide. 167. The Court accordingly concludes that Contracting Parties to the Convention are bound not to commit genocide, through the actions of their organs or persons or groups whose acts are attributable to them. That conclusion must also apply to the other acts enumerated in Article III. Those acts are forbidden along with genocide itself in the list included in Article III. They are referred to equally with genocide in Article IX and without being characterized as “punishable”; and the “purely humanitarian and civilizing purpose” of the Convention may be seen as being promoted by the fact that States are subject to that full set of obligations, supporting their undertaking to prevent genocide. It is true that the concepts used in paragraphs (b) to (e) of Article III, and particularly that of “complicity”, refer to well known categories of criminal law and, as such, appear particularly well adapted to the exercise of penal sanctions against individuals. It would however not be in keeping with the object and purpose of the Convention to deny that the international responsibility of a State ⎯ even though quite different in nature from criminal responsibility ⎯ can be engaged through one of the acts, other than genocide itself, enumerated in Article III. 168. The conclusion that the Contracting Parties are bound in this way by the Convention not to commit genocide and the other acts enumerated in Article III is confirmed by one unusual feature of the wording of Article IX. But for that unusual feature and the addition of the word “fulfilment” to the provision conferring on the Court jurisdiction over disputes as to the “interpretation and application” of the Convention (an addition which does not appear to be significant in this case), Article IX would be a standard dispute settlement provision. 169. The unusual feature of Article IX is the phrase “including those [disputes] relating to the responsibility of a State for genocide or any of the other acts enumerated in Article III”. The word “including” tends to confirm that disputes relating to the responsibility of Contracting Parties for genocide, and the other acts enumerated in Article III to which it refers, are comprised within a broader group of disputes relating to the interpretation, application or fulfilment of the Convention. The responsibility of a party for genocide and the other acts enumerated in Article III arises from its failure to comply with the obligations imposed by the other provisions of the Convention, and in particular, in the present context, with Article III read with Articles I and II. According to the English text of the Convention, the responsibility contemplated is responsibility “for genocide” (in French, “responsabilité . . . en matière de génocide”), not merely responsibility “for failing to prevent or punish genocide”. The particular terms of the phrase as a whole confirm that Contracting Parties may be responsible for genocide and the other acts enumerated in Article III of the Convention. * 170. The Court now considers three arguments, advanced by the Respondent which may be seen as contradicting the proposition that the Convention imposes a duty on the Contracting Parties not to commit genocide and the other acts enumerated in Article III. The first is that, as a matter of general principle, international law does not recognize the criminal responsibility of the State, and the Genocide Convention does not provide a vehicle for the imposition of such criminal responsibility. On the matter of principle the Respondent calls attention to the rejection by the ILC of the concept of international crimes when it prepared the final draft of its Articles on State Responsibility, a decision reflecting the strongly negative reactions of a number of States to any such concept. The Applicant accepts that general international law does not recognize the criminal responsibility of States. It contends, on the specific issue, that the obligation for which the Respondent may be held responsible, in the event of breach, in proceedings under Article IX, is simply an obligation arising under international law, in this case the provisions of the Convention. The Court observes that the obligations in question in this case, arising from the terms of the Convention, and the responsibilities of States that would arise from breach of such obligations, are obligations and responsibilities under international law. They are not of a criminal nature. This argument accordingly cannot be accepted. 171. The second argument of the Respondent is that the nature of the Convention is such as to exclude from its scope State responsibility for genocide and the other enumerated acts. The Convention, it is said, is a standard international criminal law convention focussed essentially on the criminal prosecution and punishment of individuals and not on the responsibility of States. The emphasis of the Convention on the obligations and responsibility of individuals excludes any possibility of States being liable and responsible in the event of breach of the obligations reflected in Article III. In particular, it is said, that possibility cannot stand in the face of the references, in Article III to punishment (of individuals), and in Article IV to individuals being punished, and the requirement, in Article V for legislation in particular for effective penalties for persons guilty of genocide, the provision in Article VI for the prosecution of persons charged with genocide, and requirement in Article VII for extradition. 172. The Court is mindful of the fact that the famous sentence in the Nuremberg Judgment that “[c]rimes against international law are committed by men, not by abstract entities . . .” (Judgment of the International Military Tribunal, Trial of the Major War Criminals, 1947, Official Documents, Vol. 1, p. 223) might be invoked in support of the proposition that only individuals can breach the obligations set out in Article III. But the Court notes that that Tribunal was answering the argument that “international law is concerned with the actions of sovereign States, and provides no punishment for individuals” (ibid., p. 222), and that thus States alone were responsible under international law. The Tribunal rejected that argument in the following terms: “[t]hat international law imposes duties and liabilities upon individuals as well as upon States has long been recognized” (ibid., p. 223; the phrase “as well as upon States” is missing in the French text of the Judgment). 173. The Court observes that that duality of responsibility continues to be a constant feature of international law. This feature is reflected in Article 25, paragraph 4, of the Rome Statute for the International Criminal Court, now accepted by 104 States: “No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.” The Court notes also that the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts (Annex to General Assembly resolution 56/83, 12 December 2001), to be referred to hereinafter as “the ILC Articles on State Responsibility”, affirm in Article 58 the other side of the coin: “These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.” In its Commentary on this provision, the Commission said: “Where crimes against international law are committed by State officials, it will often be the case that the State itself is responsible for the acts in question or for failure to prevent or punish them. In certain cases, in particular aggression, the State will by definition be involved. Even so, the question of individual responsibility is in principle distinct from the question of State responsibility. The State is not exempted from its own responsibility for internationally wrongful conduct by the prosecution and punishment of the State officials who carried it out.” (ILC Commentary on the Draft Articles on Responsibility of States for Internationally Wrongful Acts, ILC Report A/56/10, 2001, Commentary on Article 58, para. 3.) The Commission quoted Article 25, paragraph 4, of the Rome Statute, and concluded as follows: “Article 58 . . . [makes] it clear that the Articles do not address the question of the individual responsibility under international law of any person acting on behalf of a State. The term ‘individual responsibility’ has acquired an accepted meaning in light of the Rome Statute and other instruments; it refers to the responsibility of individual persons, including State officials, under certain rules of international law for conduct such as genocide, war crimes and crimes against humanity.” 174. The Court sees nothing in the wording or the structure of the provisions of the Convention relating to individual criminal liability which would displace the meaning of Article I, read with paragraphs (a) to (e) of Article III, so far as these provisions impose obligations on States distinct from the obligations which the Convention requires them to place on individuals. Furthermore, the fact that Articles V, VI and VII focus on individuals cannot itself establish that the Contracting Parties may not be subject to obligations not to commit genocide and the other acts enumerated in Article III. 175. The third and final argument of the Respondent against the proposition that the Contracting Parties are bound by the Convention not to commit genocide is based on the preparatory work of the Convention and particularly of Article IX. The Court has already used part of that work to confirm the operative significance of the undertaking in Article I (see paragraphs 164 and 165 above), an interpretation already determined from the terms of the Convention, its context and purpose. 176. The Respondent, claiming that the Convention and in particular Article IX is ambiguous, submits that the drafting history of the Convention, in the Sixth Committee of the General Assembly, shows that “there was no question of direct responsibility of the State for acts of genocide”. It claims that the responsibility of the State was related to the “key provisions” of Articles IV-VI: the Convention is about the criminal responsibility of individuals supported by the civil responsibility of States to prevent and punish. This argument against any wider responsibility for the Contracting Parties is based on the records of the discussion in the Sixth Committee, and is, it is contended, supported by the rejection of United Kingdom amendments to what became Articles IV and VI. Had the first amendment been adopted, Article IV, concerning the punishment of individuals committing genocide or any of the acts enumerated in Article III, would have been extended by the following additional sentence: “[Acts of genocide] committed by or on behalf of States or governments constitute a breach of the present Convention”(A/C.6/236 and Corr. 1). That amendment was defeated (United Nations, Official Records of the General Assembly, Third Session, Part I, Sixth Committee, Summary Records of the 96th meeting, p. 355). What became Article VI would have been replaced by a provision conferring jurisdiction on the Court if an act of genocide is or is alleged to be the act of a State or government or its organs. The United Kingdom in response to objections that the proposal was out of order (because it meant going back on a decision already taken) withdrew the amendment in favour of the joint amendment to what became Article IX, submitted by the United Kingdom and Belgium (ibid., 100th meeting, p. 394). In speaking to that joint amendment the United Kingdom delegate acknowledged that the debate had clearly shown the Committee’s decision to confine what is now Article VI to the responsibility of individuals (ibid., 100th meeting, p. 430). The United Kingdom/Belgium amendment would have added the words “including disputes relating to the responsibility of a State for any of the acts enumerated in Articles II and IV [as the Convention was then drafted]”. The United Kingdom delegate explained that what was involved was civil responsibility, not criminal responsibility (ibid., 103rd meeting, p. 440). A proposal to delete those words failed and the provision was adopted (ibid., 104th meeting, p. 447), with style changes being made by the Drafting Committee. 177. At a later stage a Belgium/United Kingdom/United States proposal which would have replaced the disputed phrase by including “disputes arising from a charge by a Contracting Party that the crime of genocide or any other of the acts enumerated in article III has been committed within the jurisdiction of another Contracting Party” was ruled by the Chairman of the Sixth Committee as a change of substance and the Committee did not adopt the motion (which required a two-thirds majority) for reconsideration (A/C.6/305). The Chairman gave the following reason for his ruling which was not challenged: “it was provided in article IX that those disputes, among others, which concerned the responsibility of a State for genocide or for any of the acts enumerated in article III, should be submitted to the International Court of Justice. According to the joint amendment, on the other hand, the disputes would not be those which concerned the responsibility of the State but those which resulted from an accusation to the effect that the crime had been committed in the territory of one of the contracting parties.” (United Nations, Official Records of the General Assembly, Third Session, Part I, Sixth Committee, Summary Records of the 131st meeting, p. 690.) By that time in the deliberations of the Sixth Committee it was clear that only individuals could be held criminally responsible under the draft Convention for genocide. The Chairman was plainly of the view that the Article IX, as it had been modified, provided for State responsibility for genocide. 178. In the view of the Court, two points may be drawn from the drafting history just reviewed. The first is that much of it was concerned with proposals supporting the criminal responsibility of States; but those proposals were not adopted. The second is that the amendment which was adopted ⎯ to Article IX ⎯ is about jurisdiction in respect of the responsibility of States simpliciter. Consequently, the drafting history may be seen as supporting the conclusion reached by the Court in paragraph 167 above. 179. Accordingly, having considered the various arguments, the Court affirms that the Contracting Parties are bound by the obligation under the Convention not to commit, through their organs or persons or groups whose conduct is attributable to them, genocide and the other acts enumerated in Article III. Thus if an organ of the State, or a person or group whose acts are legally attributable to the State, commits any of the acts proscribed by Article III of the Convention, the international responsibility of that State is incurred. (5) Question whether the Court may make a finding of genocide by a State in the absence of a prior conviction of an individual for genocide by a competent court 180. The Court observes that if a State is to be responsible because it has breached its obligation not to commit genocide, it must be shown that genocide as defined in the Convention has been committed. That will also be the case with conspiracy under Article III, paragraph (b), and complicity under Article III, paragraph (e); and, as explained below (paragraph 431) for purposes of the obligation to prevent genocide. The Respondent has raised the question whether it is necessary, as a matter of law, for the Court to be able to uphold a claim of the responsibility of a State for an act of genocide, or any other act enumerated in Article III, that there should have been a finding of genocide by a court or tribunal exercising criminal jurisdiction. According to the Respondent, the condition sine qua non for establishing State responsibility is the prior establishment, according to the rules of criminal law, of the individual responsibility of a perpetrator engaging the State’s responsibility. 181. The different procedures followed by, and powers available to, this Court and to the courts and tribunals trying persons for criminal offences, do not themselves indicate that there is a legal bar to the Court itself finding that genocide or the other acts enumerated in Article III have been committed. Under its Statute the Court has the capacity to undertake that task, while applying the standard of proof appropriate to charges of exceptional gravity (paragraphs 209-210 below). Turning to the terms of the Convention itself, the Court has already held that it has jurisdiction under Article IX to find a State responsible if genocide or other acts enumerated in Article III are committed by its organs, or persons or groups whose acts are attributable to it. 182. Any other interpretation could entail that there would be no legal recourse available under the Convention in some readily conceivable circumstances: genocide has allegedly been committed within a State by its leaders but they have not been brought to trial because, for instance, they are still very much in control of the powers of the State including the police, prosecution services and the courts and there is no international penal tribunal able to exercise jurisdiction over the alleged crimes; or the responsible State may have acknowledged the breach. The Court accordingly concludes that State responsibility can arise under the Convention for genocide and complicity, without an individual being convicted of the crime or an associated one. (6) The possible territorial limits of the obligations 183. The substantive obligations arising from Articles I and III are not on their face limited by territory. They apply to a State wherever it may be acting or may be able to act in ways appropriate to meeting the obligations in question. The extent of that ability in law and fact is considered, so far as the obligation to prevent the crime of genocide is concerned, in the section of the Judgment concerned with that obligation (cf. paragraph 430 below). The significant relevant condition concerning the obligation not to commit genocide and the other acts enumerated in Article III is provided by the rules on attribution (paragraphs 379 ff. below). 184. The obligation to prosecute imposed by Article VI is by contrast subject to an express territorial limit. The trial of persons charged with genocide is to be in a competent tribunal of the State in the territory of which the act was committed (cf. paragraph 442 below), or by an international penal tribunal with jurisdiction (paragraphs 443 ff. below). (7) The Applicant’s claims in respect of alleged genocide committed outside its territory against non-nationals 185. In its final submissions the Applicant requests the Court to make rulings about acts of genocide and other unlawful acts allegedly committed against “non-Serbs” outside its own territory (as well as within it) by the Respondent. Insofar as that request might relate to non-Bosnian victims, it could raise questions about the legal interest or standing of the Applicant in respect of such matters and the significance of the jus cogens character of the relevant norms, and the erga omnes character of the relevant obligations. For the reasons explained in paragraphs 368 and 369 below, the Court will not however need to address those questions of law. (8) The question of intent to commit genocide 186. The Court notes that genocide as defined in Article II of the Convention comprises “acts” and an “intent”. It is well established that the acts ⎯ “(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; [and] (e) Forcibly transferring children of the group to another group” ⎯ themselves include mental elements. “Killing” must be intentional, as must “causing serious bodily or mental harm”. Mental elements are made explicit in paragraphs (c) and (d) of Article II by the words “deliberately” and “intended”, quite apart from the implications of the words “inflicting” and “imposing”; and forcible transfer too requires deliberate intentional acts. The acts, in the words of the ILC, are by their very nature conscious, intentional or volitional acts (Commentary on Article 17 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind, ILC Report 1996, Yearbook of the International Law Commission, 1996, Vol. II, Part Two, p. 44, para. 5). 187. In addition to those mental elements, Article II requires a further mental element. It requires the establishment of the “intent to destroy, in whole or in part, . . . [the protected] group, as such”. It is not enough to establish, for instance in terms of paragraph (a), that deliberate unlawful killings of members of the group have occurred. The additional intent must also be established, and is defined very precisely. It is often referred to as a special or specific intent or dolus specialis; in the present Judgment it will usually be referred to as the “specific intent (dolus specialis)”. It is not enough that the members of the group are targeted because they belong to that group, that is because the perpetrator has a discriminatory intent. Something more is required. The acts listed in Article II must be done with intent to destroy the group as such in whole or in part. The words “as such” emphasize that intent to destroy the protected group. 188. The specificity of the intent and its particular requirements are highlighted when genocide is placed in the context of other related criminal acts, notably crimes against humanity and persecution, as the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (hereinafter “ICTY” or “the Tribunal”) did in the Kupreškić et al. case: “the mens rea requirement for persecution is higher than for ordinary crimes against humanity, although lower than for genocide. In this context the Trial Chamber wishes to stress that persecution as a crime against humanity is an offence belonging to the same genus as genocide. Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging. In both categories what matters is the intent to discriminate: to attack persons on account of their ethnic, racial, or religious characteristics (as well as, in the case of persecution, on account of their political affiliation). While in the case of persecution the discriminatory intent can take multifarious inhumane forms and manifest itself in a plurality of actions including murder, in the case of genocide that intent must be accompanied by the intention to destroy, in whole or in part, the group to which the victims of the genocide belong. Thus, it can be said that, from the viewpoint of mens rea, genocide is an extreme and most inhuman form of persecution. To put it differently, when persecution escalates to the extreme form of wilful and deliberate acts designed to destroy a group or part of a group, it can be held that such persecution amounts to genocide.” (IT-95-16-T, Judgment, 14 January 2000, para. 636.) 189. The specific intent is also to be distinguished from other reasons or motives the perpetrator may have. Great care must be taken in finding in the facts a sufficiently clear manifestation of that intent. (9) Intent and “ethnic cleansing” 190. The term “ethnic cleansing” has frequently been employed to refer to the events in Bosnia and Herzegovina which are the subject of this case; see, for example, Security Council resolution 787 (1992), para. 2; resolution 827 (1993), Preamble; and the Report with that title attached as Annex IV to the Final Report of the United Nations Commission of Experts (S/1994/674/Add.2) (hereinafter “Report of the Commission of Experts”). General Assembly resolution 47/121 referred in its Preamble to “the abhorrent policy of ‘ethnic cleansing’, which is a form of genocide”, as being carried on in Bosnia and Herzegovina. It will be convenient at this point to consider what legal significance the expression may have. It is in practice used, by reference to a specific region or area, to mean “rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area” (S/35374 (1993), para. 55, Interim Report by the Commission of Experts). It does not appear in the Genocide Convention; indeed, a proposal during the drafting of the Convention to include in the definition “measures intended to oblige members of a group to abandon their homes in order to escape the threat of subsequent ill-treatment” was not accepted (A/C.6/234). It can only be a form of genocide within the meaning of the Convention, if it corresponds to or falls within one of the categories of acts prohibited by Article II of the Convention. Neither the intent, as a matter of policy, to render an area “ethnically homogeneous”, nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is “to destroy, in whole or in part” a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement. This is not to say that acts described as “ethnic cleansing” may never constitute genocide, if they are such as to be characterized as, for example, “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”, contrary to Article II, paragraph (c), of the Convention, provided such action is carried out with the necessary specific intent (dolus specialis), that is to say with a view to the destruction of the group, as distinct from its removal from the region. As the ICTY has observed, while “there are obvious similarities between a genocidal policy and the policy commonly known as ‘ethnic cleansing’” (Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 562), yet “[a] clear distinction must be drawn between physical destruction and mere dissolution of a group. The expulsion of a group or part of a group does not in itself suffice for genocide.” (Stakić, IT-97-24-T, Trial Chamber Judgment, 31 July 2003, para. 519.) In other words, whether a particular operation described as “ethnic cleansing” amounts to genocide depends on the presence or absence of acts listed in Article II of the Genocide Convention, and of the intent to destroy the group as such. In fact, in the context of the Convention, the term “ethnic cleansing” has no legal significance of its own. That said, it is clear that acts of “ethnic cleansing” may occur in parallel to acts prohibited by Article II of the Convention, and may be significant as indicative of the presence of a specific intent (dolus specialis) inspiring those acts. (10) Definition of the protected group 191. When examining the facts brought before the Court in support of the accusations of the commission of acts of genocide, it is necessary to have in mind the identity of the group against which genocide may be considered to have been committed. The Court will therefore next consider the application in this case of the requirement of Article II of the Genocide Convention, as an element of genocide, that the proscribed acts be “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. The Parties disagreed on aspects of the definition of the “group”. The Applicant in its final submission refers to “the non-Serb national, ethnical or religious group within, but not limited to, the territory of Bosnia and Herzegovina, including in particular the Muslim population” (paragraph 66 above). It thus follows what is termed the negative approach to the definition of the group in question. The Respondent sees two legal problems with that formulation: “First, the group targeted is not sufficiently well defined as such, since, according to the Applicant’s allegation, that group consists of the non-Serbs, thus an admixture of all the individuals living in Bosnia and Herzegovina except the Serbs, but more particularly the Muslim population, which accounts for only a part of the non-Serb population. Second, the intent to destroy concerned only a part of the non-Serb population, but the Applicant failed to specify which part of the group was targeted.” In addition to those issues of the negative definition of the group and its geographic limits (or their lack), the Parties also discussed the choice between subjective and objective approaches to the definition. The Parties essentially agree that international jurisprudence accepts a combined subjective-objective approach. The issue is not in any event significant on the facts of this case and the Court takes it no further. 192. While the Applicant has employed the negative approach to the definition of a protected group, it places major, for the most part exclusive, emphasis on the Bosnian Muslims as the group being targeted. The Respondent, for instance, makes the point that the Applicant did not mention the Croats in its oral arguments relating to sexual violence, Srebrenica and Sarajevo, and that other groups including “the Jews, Roma and Yugoslavs” were not mentioned. The Applicant does however maintain the negative approach to the definition of the group in its final submissions and the Court accordingly needs to consider it. 193. The Court recalls first that the essence of the intent is to destroy the protected group, in whole or in part, as such. It is a group which must have particular positive characteristics ⎯ national, ethnical, racial or religious ⎯ and not the lack of them. The intent must also relate to the group “as such”. That means that the crime requires an intent to destroy a collection of people who have a particular group identity. It is a matter of who those people are, not who they are not. The etymology of the word ⎯ killing a group ⎯ also indicates a positive definition; and Raphael Lemkin has explained that he created the word from the Greek genos, meaning race or tribe, and the termination “-cide”, from the Latin caedere, to kill (Axis Rule in Occupied Europe (1944), p. 79). In 1945 the word was used in the Nuremberg indictment which stated that the defendants “conducted deliberate and systematic genocide, viz., the extermination of racial and national groups . . . in order to destroy particular races and classes of people and national, racial or religious groups . . .” (Indictment, Trial of the Major War Criminals before the International Military Tribunal, Official Documents, Vol. 1, pp. 43 and 44). As the Court explains below (paragraph 198), when part of the group is targeted, that part must be significant enough for its destruction to have an impact on the group as a whole. Further, each of the acts listed in Article II require that the proscribed action be against members of the “group”. 194. The drafting history of the Convention confirms that a positive definition must be used. Genocide as “the denial of the existence of entire human groups” was contrasted with homicide, “the denial of the right to live of individual human beings” by the General Assembly in its 1946 resolution 96 (I) cited in the Preamble to the Convention. The drafters of the Convention also gave close attention to the positive identification of groups with specific distinguishing characteristics in deciding which groups they would include and which (such as political groups) they would exclude. The Court spoke to the same effect in 1951 in declaring as an object of the Convention the safeguarding of “the very existence of certain human groups” (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23). Such an understanding of genocide requires a positive identification of the group. The rejection of proposals to include within the Convention political groups and cultural genocide also demonstrates that the drafters were giving close attention to the positive identification of groups with specific distinguishing well-established, some said immutable, characteristics. A negatively defined group cannot be seen in that way. 195. The Court observes that the ICTY Appeals Chamber in the Stakić case (IT-97-24-A, Judgment, 22 March 2006, paras. 20-28) also came to the conclusion that the group must be defined positively, essentially for the same reasons as the Court has given. 196. Accordingly, the Court concludes that it should deal with the matter on the basis that the targeted group must in law be defined positively, and thus not negatively as the “non-Serb” population. The Applicant has made only very limited reference to the non-Serb populations of Bosnia and Herzegovina other than the Bosnian Muslims, e.g. the Croats. The Court will therefore examine the facts of the case on the basis that genocide may be found to have been committed if an intent to destroy the Bosnian Muslims, as a group, in whole or in part, can be established. 197. The Parties also addressed a specific question relating to the impact of geographic criteria on the group as identified positively. The question concerns in particular the atrocities committed in and around Srebrenica in July 1995, and the question whether in the circumstances of that situation the definition of genocide in Article II was satisfied so far as the intent of destruction of the “group” “in whole or in part” requirement is concerned. This question arises because of a critical finding in the Krstić case. In that case the Trial Chamber was “ultimately satisfied that murders and infliction of serious bodily or mental harm were committed with the intent to kill all the Bosnian Muslim men of military age at Srebrenica” (IT-98-33, Judgment, 2 August 2001, para. 546). Those men were systematically targeted whether they were civilians or soldiers (ibid.). The Court addresses the facts of that particular situation later (paragraphs 278-297). For the moment, it considers how as a matter of law the “group” is to be defined, in territorial and other respects. 198. In terms of that question of law, the Court refers to three matters relevant to the determination of “part” of the “group” for the purposes of Article II. In the first place, the intent must be to destroy at least a substantial part of the particular group. That is demanded by the very nature of the crime of genocide: since the object and purpose of the Convention as a whole is to prevent the intentional destruction of groups, the part targeted must be significant enough to have an impact on the group as a whole. That requirement of substantiality is supported by consistent rulings of the ICTY and the International Criminal Tribunal for Rwanda (ICTR) and by the Commentary of the ILC to its Articles in the draft Code of Crimes against the Peace and Security of Mankind (e.g. Krstić, IT-98-33-A, Appeals Chamber Judgment, 19 April 2004, paras. 8-11 and the cases of Kayishema, Byilishema, and Semanza there referred to; and Yearbook of the International Law Commission, 1996, Vol. II, Part Two, p. 45, para. 8 of the Commentary to Article 17). 199. Second, the Court observes that it is widely accepted that genocide may be found to have been committed where the intent is to destroy the group within a geographically limited area. In the words of the ILC, “it is not necessary to intend to achieve the complete annihilation of a group from every corner of the globe” (ibid.). The area of the perpetrator’s activity and control are to be considered. As the ICTY Appeals Chamber has said, and indeed as the Respondent accepts, the opportunity available to the perpetrators is significant (Krstić, IT-98-33-A, Judgment, 19 April 2004, para. 13). This criterion of opportunity must however be weighed against the first and essential factor of substantiality. It may be that the opportunity available to the alleged perpetrator is so limited that the substantiality criterion is not met. The Court observes that the ICTY Trial Chamber has indeed indicated the need for caution, lest this approach might distort the definition of genocide (Stakić, IT-97-24-T, Judgment, 31 July 2003, para. 523). The Respondent, while not challenging this criterion, does contend that the limit militates against the existence of the specific intent (dolus specialis) at the national or State level as opposed to the local level ⎯ a submission which, in the view of the Court, relates to attribution rather than to the “group” requirement. 200. A third suggested criterion is qualitative rather than quantitative. The Appeals Chamber in the Krstić case put the matter in these carefully measured terms: “The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4 [of the Statute which exactly reproduces Article II of the Convention].” (IT-98-33-A, Judgment, 19 April 2004, para. 12; footnote omitted.) Establishing the “group” requirement will not always depend on the substantiality requirement alone although it is an essential starting point. It follows in the Court’s opinion that the qualitative approach cannot stand alone. The Appeals Chamber in Krstić also expresses that view. 201. The above list of criteria is not exhaustive, but, as just indicated, the substantiality criterion is critical. They are essentially those stated by the Appeals Chamber in the Krstić case, although the Court does give this first criterion priority. Much will depend on the Court’s assessment of those and all other relevant factors in any particular case. V. Questions of proof: burden of proof, the standard of proof, methods of proof 202. When turning to the facts of the dispute, the Court must note that many allegations of fact made by the Applicant are disputed by the Respondent. That is so notwithstanding increasing agreement between the Parties on certain matters through the course of the proceedings. The disputes relate to issues about the facts, for instance the number of rapes committed by Serbs against Bosnian Muslims, and the day-to-day relationships between the authorities in Belgrade and the authorities in Pale, and the inferences to be drawn from, or the evaluations to be made of, facts, for instance about the existence or otherwise of the necessary specific intent (dolus specialis) and about the attributability of the acts of the organs of Republika Srpska and various paramilitary groups to the Respondent. The allegations also cover a very wide range of activity affecting many communities and individuals over an extensive area and over a long period. They have already been the subject of many accounts, official and non-official, by many individuals and bodies. The Parties drew on many of those accounts in their pleadings and oral argument. 203. Accordingly, before proceeding to an examination of the alleged facts underlying the claim in this case, the Court first considers, in this section of the Judgment, in turn the burden or onus of proof, the standard of proof, and the methods of proof. 204. On the burden or onus of proof, it is well established in general that the applicant must establish its case and that a party asserting a fact must establish it; as the Court observed in the case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), “it is the litigant seeking to establish a fact who bears the burden of proving it” (Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101). While the Applicant accepts that approach as a general proposition, it contends that in certain respects the onus should be reversed, especially in respect of the attributability of alleged acts of genocide to the Respondent, given the refusal of the Respondent to produce the full text of certain documents. 205. The particular issue concerns the “redacted” sections of documents of the Supreme Defence Council of the Respondent, i.e. sections in which parts of the text had been blacked out so as to be illegible. The documents had been classified, according to the Co-Agent of the Respondent, by decision of the Council as a military secret, and by a confidential decision of the Council of Ministers of Serbia and Montenegro as a matter of national security interest. The Applicant contends that the Court should draw its own conclusions from the failure of the Respondent to produce complete copies of the documents. It refers to the power of the Court, which it had invoked earlier (paragraph 44 above), to call for documents under Article 49 of the Statute, which provides that “[f]ormal note shall be taken of any refusal”. In the second round of oral argument the Applicant’s Deputy Agent submitted that “Serbia and Montenegro should not be allowed to respond to our quoting the redacted SDC reports if it does not provide at the very same time the Applicant and the Court with copies of entirely unredacted versions of all the SDC shorthand records and of all of the minutes of the same. Otherwise, Serbia and Montenegro would have an overriding advantage over Bosnia and Herzegovina with respect to documents, which are apparently, and not in the last place in the Respondent’s eyes, of direct relevance to winning or losing the present case. We explicitly, Madam President, request the Court to instruct the Respondent accordingly.” (Emphasis in the original.) 206. On this matter, the Court observes that the Applicant has extensive documentation and other evidence available to it, especially from the readily accessible ICTY records. It has made very ample use of it. In the month before the hearings it submitted what must be taken to have been a careful selection of documents from the very many available from the ICTY. The Applicant called General Sir Richard Dannatt, who, drawing on a number of those documents, gave evidence on the relationship between the authorities in the Federal Republic of Yugoslavia and those in the Republika Srpska and on the matter of control and instruction. Although the Court has not agreed to either of the Applicant’s requests to be provided with unedited copies of the documents, it has not failed to note the Applicant’s suggestion that the Court may be free to draw its own conclusions. 207. On a final matter relating to the burden of proof, the Applicant contends that the Court should draw inferences, notably about specific intent (dolus specialis), from established facts, i.e., from what the Applicant refers to as a “pattern of acts” that “speaks for itself”. The Court considers that matter later in the Judgment (paragraphs 370-376 below). 208. The Parties also differ on the second matter, the standard of proof. The Applicant, emphasizing that the matter is not one of criminal law, says that the standard is the balance of evidence or the balance of probabilities, inasmuch as what is alleged is breach of treaty obligations. According to the Respondent, the proceedings “concern the most serious issues of State responsibility and . . . a charge of such exceptional gravity against a State requires a proper degree of certainty. The proofs should be such as to leave no room for reasonable doubt.” 209. The Court has long recognized that claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive (cf. Corfu Channel (United Kingdom v. Albania), Judgment, I.C.J. Reports 1949, p. 17). The Court requires that it be fully convinced that allegations made in the proceedings, that the crime of genocide or the other acts enumerated in Article III have been committed, have been clearly established. The same standard applies to the proof of attribution for such acts. 210. In respect of the Applicant’s claim that the Respondent has breached its undertakings to prevent genocide and to punish and extradite persons charged with genocide, the Court requires proof at a high level of certainty appropriate to the seriousness of the allegation. 211. The Court now turns to the third matter ⎯ the method of proof. The Parties submitted a vast array of material, from different sources, to the Court. It included reports, resolutions and findings by various United Nations organs, including the Secretary-General, the General Assembly, the Security Council and its Commission of Experts, and the Commission on Human Rights, the Sub-Commission on the Prevention of Discrimination and Protection of Minorities and the Special Rapporteur on Human Rights in the former Yugoslavia; documents from other intergovernmental organizations such as the Conference for Security and Co-operation in Europe; documents, evidence and decisions from the ICTY; publications from governments; documents from non-governmental organizations; media reports, articles and books. They also called witnesses, experts and witness-experts (paragraphs 57-58 above). 212. The Court must itself make its own determination of the facts which are relevant to the law which the Applicant claims the Respondent has breached. This case does however have an unusual feature. Many of the allegations before this Court have already been the subject of the processes and decisions of the ICTY. The Court considers their significance later in this section of the Judgment. 213. The assessment made by the Court of the weight to be given to a particular item of evidence may lead to the Court rejecting the item as unreliable, or finding it probative, as appears from the practice followed for instance in the case concerning United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, pp. 9-10, paras. 11-13; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 39-41, paras. 59-73; and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, pp. 200-201, paras. 57-61. In the most recent case the Court said this: “The Court will treat with caution evidentiary materials specially prepared for this case and also materials emanating from a single source. It will prefer contemporaneous evidence from persons with direct knowledge. It will give particular attention to reliable evidence acknowledging facts or conduct unfavourable to the State represented by the person making them (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 41, para. 64). The Court will also give weight to evidence that has not, even before this litigation, been challenged by impartial persons for the correctness of what it contains. The Court moreover notes that evidence obtained by examination of persons directly involved, and who were subsequently cross-examined by judges skilled in examination and experienced in assessing large amounts of factual information, some of it of a technical nature, merits special attention. The Court thus will give appropriate consideration to the Report of the Porter Commission, which gathered evidence in this manner. The Court further notes that, since its publication, there has been no challenge to the credibility of this Report, which has been accepted by both Parties.” (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 35, para. 61. See also paras. 78-79, 114 and 237-242.) 214. The fact-finding process of the ICTY falls within this formulation, as “evidence obtained by examination of persons directly involved”, tested by cross-examination, the credibility of which has not been challenged subsequently. The Court has been referred to extensive documentation arising from the Tribunal’s processes, including indictments by the Prosecutor, various interlocutory decisions by judges and Trial Chambers, oral and written evidence, decisions of the Trial Chambers on guilt or innocence, sentencing judgments following a plea agreement and decisions of the Appeals Chamber. 215. By the end of the oral proceedings the Parties were in a broad measure of agreement on the significance of the ICTY material. The Applicant throughout has given and gives major weight to that material. At the written stage the Respondent had challenged the reliability of the Tribunal’s findings, the adequacy of the legal framework under which it operates, the adequacy of its procedures and its neutrality. At the stage of the oral proceedings, its position had changed in a major way. In its Agent’s words, the Respondent now based itself on the jurisprudence of the Tribunal and had “in effect” distanced itself from the opinions about the Tribunal expressed in its Rejoinder. The Agent was however careful to distinguish between different categories of material: “[W]e do not regard all the material of the Tribunal for the former Yugoslavia as having the same relevance or probative value. We have primarily based ourselves upon the judgments of the Tribunal’s Trial and Appeals Chambers, given that only the judgments can be regarded as establishing the facts about the crimes in a credible way.” And he went on to point out that the Tribunal has not so far, with the exception of Srebrenica, held that genocide was committed in any of the situations cited by the Applicant. He also called attention to the criticisms already made by Respondent’s counsel of the relevant judgment concerning General Krstić who was found guilty of aiding and abetting genocide at Srebrenica. 216. The Court was referred to actions and decisions taken at various stages of the ICTY processes: (1) The Prosecutor’s decision to include or not certain changes in an indictment; (2) The decision of a judge on reviewing the indictment to confirm it and issue an arrest warrant or not; (3) If such warrant is not executed, a decision of a Trial Chamber (of three judges) to issue an international arrest warrant, provided the Chamber is satisfied that there are reasonable grounds for believing that the accused has committed all or any of the crimes charged; (4) The decision of a Trial Chamber on the accused’s motion for acquittal at the end of the prosecution case; (5) The judgment of a Trial Chamber following the full hearings; (6) The sentencing judgment of a Trial Chamber following a guilty plea. The Court was also referred to certain decisions of the Appeals Chamber. 217. The Court will consider these stages in turn. The Applicant placed some weight on indictments filed by the Prosecutor. But the claims made by the Prosecutor in the indictments are just that ⎯ allegations made by one party. They have still to proceed through the various phases outlined earlier. The Prosecutor may, instead, decide to withdraw charges of genocide or they may be dismissed at trial. Accordingly, as a general proposition the inclusion of charges in an indictment cannot be given weight. What may however be significant is the decision of the Prosecutor, either initially or in an amendment to an indictment, not to include or to exclude a charge of genocide. 218. The second and third stages, relating to the confirmation of the indictment, issues of arrest warrants and charges, are the responsibility of the judges (one in the second stage and three in the third) rather than the Prosecutor, and witnesses may also be called in the third, but the accused is generally not involved. Moreover, the grounds for a judge to act are, at the second stage, that a prima facie case has been established, and at the third, that reasonable grounds exist for belief that the accused has committed crimes charged. 219. The accused does have a role at the fourth stage ⎯ motions for acquittal made by the defence at the end of the prosecution’s case and after the defence has had the opportunity to cross-examine the prosecution’s witnesses, on the basis that “there is no evidence capable of supporting a conviction”. This stage is understood to require a decision, not that the Chamber trying the facts would be satisfied beyond reasonable doubt by the prosecution’s evidence (if accepted), but rather that it could be so satisfied (Jelisić, IT-95-10-A, Appeals Chamber Judgment, 5 July 2001, para. 37). The significance of that lesser standard for present purposes appears from one case on which the Applicant relied. The Trial Chamber in August 2005 in Krajišnik dismissed the defence motion that the accused who was charged with genocide and other crimes had no case to answer (IT-00-39-T, transcript of 19 August 2005, pp. 17112-17132). But following the full hearing the accused was found not guilty of genocide nor of complicity in genocide. While the actus reus of genocide was established, the specific intent (dolus specialis) was not (Trial Chamber Judgment, 27 September 2006, paras. 867-869). Because the judge or the Chamber does not make definitive findings at any of the four stages described, the Court does not consider that it can give weight to those rulings. The standard of proof which the Court requires in this case would not be met. 220. The processes of the Tribunal at the fifth stage, leading to a judgment of the Trial Chamber following the full hearing are to be contrasted with those earlier stages. The processes of the Tribunal leading to final findings are rigorous. Accused are presumed innocent until proved guilty beyond reasonable doubt. They are entitled to listed minimum guarantees (taken from the International Covenant on Civil and Political Rights), including the right to counsel, to examine witness against them, to obtain the examination of witness on their behalf, and not to be compelled to testify against themselves or to confess guilt. The Tribunal has powers to require Member States of the United Nations to co-operate with it, among other things, in the taking of testimony and the production of evidence. Accused are provided with extensive pre-trial disclosure including materials gathered by the prosecution and supporting the indictment, relevant witness statements and the pre-trial brief summarizing the evidence against them. The prosecutor is also to disclose exculpatory material to the accused and to make available in electronic form the collections of relevant material which the prosecution holds. 221. In practice, now extending over ten years, the trials, many of important military or political figures for alleged crimes committed over long periods and involving complex allegations, usually last for months, even years, and can involve thousands of documents and numerous witnesses. The Trial Chamber may admit any relevant evidence which has probative value. The Chamber is to give its reasons in writing and separate and dissenting opinions may be appended. 222. Each party has a right of appeal from the judgment of the Trial Chamber to the Appeals Chamber on the grounds of error of law invalidating the decision or error of fact occasioning a miscarriage of justice. The Appeals Chamber of five judges does not rehear the evidence, but it does have power to hear additional evidence if it finds that it was not available at trial, is relevant and credible and could have been a decisive factor in the trial. It too is to give a reasoned opinion in writing to which separate or dissenting opinions may be appended. 223. In view of the above, the Court concludes that it should in principle accept as highly persuasive relevant findings of fact made by the Tribunal at trial, unless of course they have been upset on appeal. For the same reasons, any evaluation by the Tribunal based on the facts as so found for instance about the existence of the required intent, is also entitled to due weight. 224. There remains for consideration the sixth stage, that of sentencing judgments given following a guilty plea. The process involves a statement of agreed facts and a sentencing judgment. Notwithstanding the guilty plea the Trial Chamber must be satisfied that there is sufficient factual basis for the crime and the accused’s participation in it. It must also be satisfied that the guilty plea has been made voluntarily, is informed and is not equivocal. Accordingly the agreed statement and the sentencing judgment may when relevant be given a certain weight. 225. The Court will now comment in a general way on some of the other evidence submitted to it. Some of that evidence has been produced to prove that a particular statement was made so that the Party may make use of its content. In many of these cases the accuracy of the document as a record is not in doubt; rather its significance is. That is often the case for instance with official documents, such as the record of parliamentary bodies and budget and financial statements. Another instance is when the statement was recorded contemporaneously on audio or videotape. Yet another is the evidence recorded by the ICTY. 226. In some cases the account represents the speaker’s own knowledge of the fact to be determined or evaluated. In other cases the account may set out the speaker’s opinion or understanding of events after they have occurred and in some cases the account will not be based on direct observation but may be hearsay. In fact the Parties rarely disagreed about the authenticity of such material but rather about whether it was being accurately presented (for instance with contention that passages were being taken out of context) and what weight or significance should be given to it. 227. The Court was also referred to a number of reports from official or independent bodies, giving accounts of relevant events. Their value depends, among other things, on (1) the source of the item of evidence (for instance partisan, or neutral), (2) the process by which it has been generated (for instance an anonymous press report or the product of a careful court or court-like process), and (3) the quality or character of the item (such as statements against interest, and agreed or uncontested facts). 228. One particular instance is the comprehensive report, “The Fall of Srebrenica”, which the United Nations Secretary-General submitted in November 1999 to the General Assembly (United Nations doc. A/54/549). It was prepared at the request of the General Assembly, and covered the events from the establishing by the Security Council of the “safe area” on 16 April 1993 (Security Council resolution 819 (1993)) until the endorsement by the Security Council on 15 December 1995 of the Dayton Agreement. Member States and others concerned had been encouraged to provide relevant information. The Secretary-General was in a very good position to prepare a comprehensive report, some years after the events, as appears in part from this description of the method of preparation: “This report has been prepared on the basis of archival research within the United Nations system, as well as on the basis of interviews with individuals who, in one capacity or another, participated in or had knowledge of the events in question. In the interest of gaining a clearer understanding of these events, I have taken the exceptional step of entering into the public record information from the classified files of the United Nations. In addition, I would like to record my thanks to those Member States, organizations and individuals who provided information for this report. A list of persons interviewed in this connection is attached as annex 1. While that list is fairly extensive, time, as well as budgetary and other constraints, precluded interviewing many other individuals who would be in a position to offer important perspectives on the subject at hand. In most cases, the interviews were conducted on a non-attribution basis to encourage as candid a disclosure as possible. I have also honoured the request of those individuals who provided information for this report on the condition that they not be identified.” (A/54/549, para. 8.) 229. The chapter, “Fall of Srebrenica: 6-11 July 1995”, is preceded by this note: “The United Nations has hitherto not publicly disclosed the full details of the attack carried out on Srebrenica from 6 to 11 July 1995. The account which follows has now been reconstructed mainly from reports filed at that time by Dutchbat and the United Nations military observers. The accounts provided have also been supplemented with information contained in the Netherlands report on the debriefing of Dutchbat, completed in October 1995, and by information provided by Bosniac, Bosnian Serb and international sources. In order to independently examine the information contained in various secondary sources published over the past four years, as well to corroborate key information contained in the Netherlands debriefing report, interviews were conducted during the preparation of this report with a number of key personnel who were either in Srebrenica at the time, or who were involved in decision-making at higher levels in the United Nations chain of command.” (A/54/549, Chap. VII, p. 57.) The introductory note to the next chapter, “The Aftermath of the fall of Srebrenica: 12-20 July 1995”, contains this description of the sources: “The following section attempts to describe in a coherent narrative how thousands of men and boys were summarily executed and buried in mass graves within a matter of days while the international community attempted to negotiate access to them. It details how evidence of atrocities taking place gradually came to light, but too late to prevent the tragedy which was unfolding. In 1995, the details of the tragedy were told in piecemeal fashion, as survivors of the mass executions began to provide accounts of the horrors they had witnessed; satellite photos later gave credence to their accounts. The first official United Nations report which signalled the possibility of mass executions having taken place was the report of the Special Rapporteur of the Commission on Human Rights, dated 22 August 1995 (E/CN.4/1996/9). It was followed by the Secretary-General’s reports to the Security Council, pursuant to resolution 1010 (1995), of 30 August (S/1995/755) and 27 November 1995 (S/1995/988). Those reports included information obtained from governmental and non-governmental organizations, as well as information that had appeared in the international and local press. By the end of 1995, however, the International Tribunal for the Former Yugoslavia had still not been granted access to the area to corroborate the allegations of mass executions with forensic evidence. The Tribunal first gained access to the crime scenes in January 1996. The details of many of their findings were made public in July 1996, during testimony under rule 60 of the Tribunal’s rules of procedure, in the case against Ratio [sic: Ratko] Mladić and Radovan Karadžić. Between that time and the present, the Tribunal has been able to conduct further investigations in the areas where the executions were reported to have taken place and where the primary and secondary mass graves were reported to have been located. On the basis of the forensic evidence obtained during those investigations, the Tribunal has now been able to further corroborate much of the testimony of the survivors of the massacres. On 30 October 1998, the Tribunal indicted Radislav Krstić, Commander of the BSA’s Drina Corps, for his alleged involvement in those massacres. The text of the indictment provides a succinct summary of the information obtained to date on where and when the mass executions took place. The aforementioned sources of information, coupled with certain additional confidential information that was obtained during the preparation of this report, form the basis of the account which follows. Sources are purposely not cited in those instances where such disclosure could potentially compromise the Tribunal’s ongoing work.” (Ibid., Chap. VIII, p. 77.) 230. The care taken in preparing the report, its comprehensive sources and the independence of those responsible for its preparation all lend considerable authority to it. As will appear later in this Judgment, the Court has gained substantial assistance from this report. VI. The facts invoked by the Applicant, in relation to Article II (1) The background 231. In this case the Court is seised of a dispute between two sovereign States, each of which is established in part of the territory of the former State known as the Socialist Federal Republic of Yugoslavia, concerning the application and fulfilment of an international convention to which they are parties, the Convention on the Prevention and Punishment of the Crime of Genocide. The task of the Court is to deal with the legal claims and factual allegations advanced by Bosnia and Herzegovina against Serbia and Montenegro; the counter-claim advanced earlier in the proceedings by Serbia and Montenegro against Bosnia and Herzegovina has been withdrawn. 232. Following the death on 4 May 1980 of President Tito, a rotating presidency was implemented in accordance with the 1974 Constitution of the SFRY. After almost ten years of economic crisis and the rise of nationalism within the republics and growing tension between different ethnic and national groups, the SFRY began to break up. On 25 June 1991, Slovenia and Croatia declared independence, followed by Macedonia on 17 September 1991. (Slovenia and Macedonia are not concerned in the present proceedings; Croatia has brought a separate case against Serbia and Montenegro, which is still pending on the General List.) On the eve of the war in Bosnia and Herzegovina which then broke out, according to the last census (31 March 1991), some 44 per cent of the population of the country described themselves as Muslims, some 31 per cent as Serbs and some 17 per cent as Croats (Krajišnik, IT-00-39-T and 40-T, Trial Chamber Judgment, 27 September 2006, para. 15). 233. By a “sovereignty” resolution adopted on 14 October 1991, the Parliament of Bosnia and Herzegovina declared the independence of the Republic. The validity of this resolution was contested at the time by the Serbian community of Bosnia and Herzegovina (Opinion No. 1 of the Arbitration Commission of the Conference on Yugoslavia (the Badinter Commission), p. 3). On 24 October 1991, the Serb Members of the Bosnian Parliament proclaimed a separate Assembly of the Serb Nation/Assembly of the Serb People of Bosnia and Herzegovina. On 9 January 1992, the Republic of the Serb People of Bosnia and Herzegovina (subsequently renamed the Republika Srpska on 12 August 1992) was declared with the proviso that the declaration would come into force upon international recognition of the Republic of Bosnia and Herzegovina. On 28 February 1992, the Constitution of the Republic of the Serb People of Bosnia and Herzegovina was adopted The Republic of the Serb People of Bosnia and Herzegovina (and subsequently the Republika Srpska) was not and has not been recognized internationally as a State; it has however enjoyed some de facto independence. 224. On 29 February and 1 March 1992, a referendum was held on the question of independence in Bosnia and Herzegovina. On 6 March 1992, Bosnia and Herzegovina officially declared its independence. With effect from 7 April 1992, Bosnia and Herzegovina was recognized by the European Community. On 7 April 1992, Bosnia and Herzegovina was recognized by the United States. On 27 April 1992, the Constitution of the Federal Republic of Yugoslavia was adopted consisting of the Republic of Serbia and the Republic of Montenegro. As explained above (paragraph 67), Montenegro declared its independence on 3 June 2006. All three States have been admitted to membership of the United Nations: Bosnia and Herzegovina on 22 May 1992; Serbia and Montenegro, under the name of the Federal Republic of Yugoslavia on 1 November 2000; and the Republic of Montenegro on 28 June 2006. (2) The entities involved in the events complained of 235. It will be convenient next to define the institutions, organizations or groups that were the actors in the tragic events that were to unfold in Bosnia and Herzegovina. Of the independent sovereign States that had emerged from the break-up of the SFRY, two are concerned in the present proceedings: on the one side, the FRY (later to be called Serbia and Montenegro), which was composed of the two constituent republics of Serbia and Montenegro; on the other, the Republic of Bosnia and Herzegovina. At the time when the latter State declared its independence (15 October 1991), the independence of two other entities had already been declared: in Croatia, the Republika Srpska Krajina, on 26 April 1991, and the Republic of the Serb People of Bosnia and Herzegovina, later to be called the Republika Srpska, on 9 January 1992 (paragraph 233 above). The Republika Srpska never attained international recognition as a sovereign State, but it had de facto control of substantial territory, and the loyalty of large numbers of Bosnian Serbs. 236. The Parties both recognize that there were a number of entities at a lower level the activities of which have formed part of the factual issues in the case, though they disagree as to the significance of those activities. Of the military and paramilitary units active in the hostilities, there were in April 1992 five types of armed formations involved in Bosnia: first, the Yugoslav People’s Army (JNA), subsequently the Yugoslav Army (VJ); second, volunteer units supported by the JNA and later by the VJ, and the Ministry of the Interior (MUP) of the FRY; third, municipal Bosnian Serb Territorial Defence (TO) detachments; and, fourth, police forces of the Bosnian Serb Ministry of the Interior. The MUP of the Republika Srpska controlled the police and the security services, and operated, according to the Applicant, in close co-operation and co-ordination with the MUP of the FRY. On 15 April 1992, the Bosnian Government established a military force, based on the former Territorial Defence of the Republic, the Army of the Republic of Bosnia and Herzegovina (ARBiH), merging several non-official forces, including a number of paramilitary defence groups, such as the Green Berets, and the Patriotic League, being the military wing of the Muslim Party of Democratic Action. The Court does not overlook the evidence suggesting the existence of Muslim organizations involved in the conflict, such as foreign Mujahideen, although as a result of the withdrawal of the Respondent’s counter-claims, the activities of these bodies are not the subject of specific claims before the Court. 237. The Applicant has asserted the existence of close ties between the Government of the Respondent and the authorities of the Republika Srpska, of a political and financial nature, and also as regards administration and control of the army of the Republika Srpska (VRS). The Court observes that insofar as the political sympathies of the Respondent lay with the Bosnian Serbs, this is not contrary to any legal rule. It is however argued by the Applicant that the Respondent, under the guise of protecting the Serb population of Bosnia and Herzegovina, in fact conceived and shared with them the vision of a “Greater Serbia”, in pursuit of which it gave its support to those persons and groups responsible for the activities which allegedly constitute the genocidal acts complained of. The Applicant bases this contention first on the “Strategic Goals” articulated by President Karadžić at the 16th Session of the FRY Assembly on 12 May 1992, and subsequently published in the Official Gazette of the Republika Srpska (paragraph 371), and secondly on the consistent conduct of the Serb military and paramilitary forces vis-à-vis the non-Serb Bosnians showing, it is suggested, an overall specific intent (dolus specialis). These activities will be examined below. 238. As regards the relationship between the armies of the FRY and the Republika Srpska, the Yugoslav Peoples’ Army (JNA) of the SFRY had, during the greater part of the period of existence of the SFRY, been effectively a federal army, composed of soldiers from all the constituent republics of the Federation, with no distinction between different ethnic and religious groups. It is however contended by the Applicant that even before the break-up of the SFRY arrangements were being made to transform the JNA into an effectively Serb army. The Court notes that on 8 May 1992, all JNA troops who were not of Bosnian origin were withdrawn from Bosnia-Herzegovina. However, JNA troops of Bosnian Serb origin who were serving in Bosnia and Herzegovina were transformed into, or joined, the army of the Republika Srpska (the VRS) which was established on 12 May 1992, or the VRS Territorial Defence. Moreover, Bosnian Serb soldiers serving in JNA units elsewhere were transferred to Bosnia and Herzegovina and subsequently joined the VRS. The remainder of the JNA was transformed into the Yugoslav army (VJ) and became the army of the Federal Republic of Yugoslavia. On 15 May 1992 the Security Council, by resolution 752, demanded that units of the JNA in Bosnia and Herzegovina “be withdrawn, or be subject to the authority of the Government of Bosnia and Herzegovina, or be disbanded and disarmed”. On 19 May 1992, the Yugoslav army was officially withdrawn from Bosnia and Herzegovina. The Applicant contended that from 1993 onwards, around 1,800 VRS officers were “administered” by the 30th Personnel Centre of the VJ in Belgrade; this meant that matters like their payment, promotions, pensions, etc., were handled, not by the Republika Srpska, but by the army of the Respondent. According to the Respondent, the importance of this fact was greatly exaggerated by the Applicant: the VRS had around 14,000 officers and thus only a small number of them was dealt with by the 30th Personnel Centre; this Centre only gave a certain degree of assistance to the VRS. The Applicant maintains that all VRS officers remained members of the FRY army ⎯ only the label changed; according to the Respondent, there is no evidence for this last allegation. The Court takes note however of the comprehensive description of the processes involved set out in paragraphs 113 to 117 of the Judgment of 7 May 1997 of the ICTY Trial Chamber in the Tadić case (IT-94-1-T) quoted by the Applicant which mainly corroborate the account given by the latter. Insofar as the Respondent does not deny the fact of these developments, it insists that they were normal reactions to the threat of civil war, and there was no premeditated plan behind them. 239. The Court further notes the submission of the Applicant that the VRS was armed and equipped by the Respondent. The Applicant contends that when the JNA formally withdrew on 19 May 1992, it left behind all its military equipment which was subsequently taken over by the VRS. This claim is supported by the Secretary-General’s report of 3 December 1992 in which he concluded that “[t]hough the JNA has completely withdrawn from Bosnia and Herzegovina, former members of Bosnian Serb origin have been left behind with their equipment and constitute the Army of the ‘Serb Republic’” (A/47/747, para. 11). Moreover, the Applicant submits that Belgrade actively supplied the VRS with arms and equipment throughout the war in Bosnia and Herzegovina. On the basis of evidence produced before the ICTY, the Applicant contended that up to 90 per cent of the material needs of the VRS were supplied by Belgrade. General Dannatt, one of the experts called by the Applicant (paragraph 57 above), testified that, according to a “consumption review” given by General Mladić at the Bosnian Serb Assembly on 16 April 1995, 42.2 per cent of VRS supplies of infantry ammunition were inherited from the former JNA and 47 per cent of VRS requirements were supplied by the VJ. For its part, the Respondent generally denies that it supplied and equipped the VRS but maintains that, even if that were the case, such assistance “is very familiar and is an aspect of numerous treaties of mutual security, both bilateral and regional”. The Respondent adds that moreover it is a matter of public knowledge that the armed forces of Bosnia and Herzegovina received external assistance from friendly sources. However, one of the witnesses called by the Respondent, Mr. Vladimir Lukić, who was the Prime Minister of the Republika Srpska from 20 January 1993 to 18 August 1994 testified that the army of the Republika Srpska was supplied from different sources “including but not limited to the Federal Republic of Yugoslavia” but asserted that the Republika Srpska “mainly paid for the military materiel which it obtained” from the States that supplied it. 240. As regards effective links between the two governments in the financial sphere, the Applicant maintains that the economies of the FRY, the Republika Srpska, and the Republika Srpska Krajina were integrated through the creation of a single economic entity, thus enabling the FRY Government to finance the armies of the two other bodies in addition to its own. The Applicant argued that the National Banks of the Republika Srpska and of the Republika Srpska Krajina were set up as under the control of, and directly subordinate to, the National Bank of Yugoslavia in Belgrade. The national budget of the FRY was to a large extent financed through primary issues from the National Bank of Yugoslavia, which was said to be entirely under governmental control, i.e. in effect through creating money by providing credit to the FRY budget for the use of the JNA. The same was the case for the budgets of the Republika Srpska and the Republika Srpska Krajina, which according to the Applicant had virtually no independent sources of income; the Respondent asserts that income was forthcoming from various sources, but has not specified the extent of this. The National Bank of Yugoslavia was making available funds (80 per cent of those available from primary issues) for “special purposes”, that is to say “to avoid the adverse effects of war on the economy of the Serbian Republic of Bosnia and Herzegovina”. The Respondent has denied that the budget deficit of the Republika Srpska was financed by the FRY but has not presented evidence to show how it was financed. Furthermore, the Respondent emphasizes that any financing supplied was simply on the basis of credits, to be repaid, and was therefore quite normal, particularly in view of the economic isolation of the FRY, the Republika Srpska and the Republika Srpska Krajina; it also suggested that any funds received would have been under the sole control of the recipient, the Republika Srpska or the Republika Srpska Krajina. 241. The Court finds it established that the Respondent was thus making its considerable military and financial support available to the Republika Srpska, and had it withdrawn that support, this would have greatly constrained the options that were available to the Republika Srpska authorities. (3) Examination of factual evidence: introduction 242. The Court will therefore now examine the facts alleged by the Applicant, in order to satisfy itself, first, whether the alleged atrocities occurred; secondly, whether such atrocities, if established, fall within the scope of Article II of the Genocide Convention, that is to say whether the facts establish the existence of an intent, on the part of the perpetrators of those atrocities, to destroy, in whole or in part, a defined group (dolus specialis). The group taken into account for this purpose will, for the reasons explained above (paragraphs 191-196), be that of the Bosnian Muslims; while the Applicant has presented evidence said to relate to the wider group of non-Serb Bosnians, the Bosnian Muslims formed such a substantial part of this wider group that that evidence appears to have equal probative value as regards the facts, in relation to the more restricted group. The Court will also consider the facts alleged in the light of the question whether there is persuasive and consistent evidence for a pattern of atrocities, as alleged by the Applicant, which would constitute evidence of dolus specialis on the part of the Respondent. For this purpose it is not necessary to examine every single incident reported by the Applicant, nor is it necessary to make an exhaustive list of the allegations; the Court finds it sufficient to examine those facts that would illuminate the question of intent, or illustrate the claim by the Applicant of a pattern of acts committed against members of the group, such as to lead to an inference from such pattern of the existence of a specific intent (dolus specialis). 243. The Court will examine the evidence following the categories of prohibited acts to be found in Article II of the Genocide Convention. The nature of the events to be described is however such that there is considerable overlap between these categories: thus, for example, the conditions of life in the camps to which members of the protected group were confined have been presented by the Applicant as violations of Article II, paragraph (c), of the Convention (the deliberate infliction of destructive conditions of life), but since numerous inmates of the camps died, allegedly as a result of those conditions, or were killed there, the camps fall to be mentioned also under paragraph (a), killing of members of the protected group. 244. In the evidentiary material submitted to the Court, and that referred to by the ICTY, frequent reference is made to the actions of “Serbs” or “Serb forces”, and it is not always clear what relationship, if any, the participants are alleged to have had with the Respondent. In some cases it is contended, for example, that the JNA, as an organ de jure of the Respondent, was involved; in other cases it seems clear that the participants were Bosnian Serbs, with no de jure link with the Respondent, but persons whose actions are, it is argued, attributable to the Respondent on other grounds. Furthermore, as noted in paragraph 238 above, it appears that JNA troops of Bosnian Serb origin were transformed into, or joined the VRS. At this stage of the present Judgment, the Court is not yet concerned with the question of the attributability to the Respondent of the atrocities described; it will therefore use the terms “Serb” and “Serb forces” purely descriptively, without prejudice to the status they may later, in relation to each incident, be shown to have had. When referring to documents of the ICTY, or to the Applicant’s pleadings or oral argument, the Court will use the terminology of the original. (4) Article II (a): Killing members of the protected group 245. Article II (a) of the Convention deals with acts of killing members of the protected group. The Court will first examine the evidence of killings of members of the protected group in the principal areas of Bosnia and in the various detention camps, and ascertain whether there is evidence of a specific intent (dolus specialis) in one or more of them. The Court will then consider under this heading the evidence of the massacres reported to have occurred in July 1995 at Srebrenica. Sarajevo 246. The Court notes that the Applicant refers repeatedly to killings, by shelling and sniping, perpetrated in Sarajevo. The Fifth Periodic Report of the United Nations Special Rapporteur is presented by the Applicant in support of the allegation that between 1992 and 1993 killings of Muslim civilians were perpetrated in Sarajevo, partly as a result of continuous shelling by Bosnian Serb forces. The Special Rapporteur stated that on 9 and 10 November 1993 mortar attacks killed 12 people (E/CN.4/1994/47, 17 November 1992, p. 4, para. 14). In his periodic Report of 5 July 1995, the Special Rapporteur observed that as from late February 1995 numerous civilians were killed by sniping activities of Bosnian Serb forces and that “one local source reported that a total of 41 civilians were killed . . . in Sarajevo during the month of May 1995” (Report of 5 July 1995, para. 69). The Report also noted that, in late June and early July 1995, there was further indiscriminate shelling and rocket attacks on Sarajevo by Bosnian Serb forces as a result of which many civilian deaths were reported (Report of 5 July 1995, para. 70). 247. The Report of the Commission of Experts gives a detailed account of the battle and siege of Sarajevo. The Commission estimated that over the course of the siege nearly 10,000 persons had been killed or were missing in the city of Sarajevo (Report of the Commission of Experts, Vol. II, Ann. VI, p. 8). According to the estimates made in a report presented by the Prosecution before the ICTY in the Galić case (IT-98-29-T, Trial Chamber Judgment, 5 December 2003, paras. 578 and 579), the monthly average of civilians killed fell from 105 in September to December 1992, to around 64 in 1993 and to around 28 in the first six months of 1994. 248. The Trial Chamber of the ICTY, in its Judgment of 5 December 2003 in the Galić case examined specific incidents in the area of Sarajevo, for instance the shelling of the Markale market on 5 February 1994 which resulted in the killing of 60 persons. The majority of the Trial Chamber found that “civilians in ABiH-held areas of Sarajevo were directly or indiscriminately attacked from SRK-controlled territory during the Indictment Period, and that as a result and as a minimum, hundreds of civilians were killed and thousands others were injured” (Galić, IT-98-29-T, Judgment, 5 December 2003, para. 591), the Trial Chamber further concluded that “[i]n sum, the Majority of the Trial Chamber finds that each of the crimes alleged in the Indictment ⎯ crime of terror, attacks on civilians, murder and inhumane acts ⎯ were committed by SRK forces during the Indictment Period” (ibid., para. 600). 249. In this connection, the Respondent makes the general point that in a civil war it is not always possible to differentiate between military personnel and civilians. It does not deny that crimes were committed during the siege of Sarajevo, crimes that “could certainly be characterized as war crimes and certain even as crimes against humanity”, but it does not accept that there was a strategy of targeting civilians. Drina River Valley (a) Zvornik 250. The Applicant made a number of allegations with regard to killings that occurred in the area of Drina River Valley. The Applicant, relying on the Report of the Commission of Experts, claims that at least 2,500 Muslims died in Zvornik from April to May 1992. The Court notes that the findings of the Report of the Commission of Experts are based on individual witness statements and one declassified United States State Department document No. 94-11 (Vol. V, Ann. X, para. 387; Vol. IV, Ann. VIII, p. 342 and para. 2884; Vol. I, Ann. III.A, para. 578). Further, a video reporting on massacres in Zvornik was shown during the oral proceedings (excerpts from “The Death of Yugoslavia”, BBC documentary). With regard to specific incidents, the Applicant alleges that Serb soldiers shot 36 Muslims and mistreated 27 Muslim children in the local hospital of Zvornik in the second half of May 1992. 251. The Respondent contests those allegations and contends that all three sources used by the Applicant are based solely on the account of one witness. It considers that the three reports cited by the Applicant cannot be used as evidence before the Court. The Respondent produced the statement of a witness made before an investigating judge in Zvornik which claimed that the alleged massacre in the local hospital of Zvornik had never taken place. The Court notes that the Office of the Prosecutor of the ICTY had never indicted any of the accused for the alleged massacres in the hospital. (b) Camps (i) Sušica camp 252. The Applicant further presents claims with regard to killings perpetrated in detention camps in the area of Drina River Valley. The Report of the Commission of Experts includes the statement of an ex-guard at the Sušica camp who personally witnessed 3,000 Muslims being killed (Vol. IV, Ann. VIII, p. 334) and the execution of the last 200 surviving detainees (Vol. I, Ann. IV, pp. 31-32). In proceedings before the ICTY, the commander of that camp, Dragan Nikolić, pleaded guilty to murdering nine non-Serb detainees and, according to the Sentencing Judgment of 18 December 2003, “the Accused persecuted Muslim and other non-Serb detainees by subjecting them to murders, rapes and torture as charged specifically in the Indictment” (Nikolić, IT-94-2-S, para. 67). (ii) Foča Kazneno-Popravní Dom camp 253. The Report of the Commission of Experts further mentions numerous killings at the camp of Foča Kazneno-Popravní Dom (Foča KP Dom). The Experts estimated that the number of prisoners at the camp fell from 570 to 130 over two months (Vol. IV, Ann. VIII, p. 129). The United States State Department reported one eye-witness statement of regular executions in July 1992 and mass graves at the camp. 254. The Trial Chamber of the ICTY made the following findings on several killings at this camp in its Judgment in the Krnojelac case: “The Trial Chamber is satisfied beyond reasonable doubt that all but three of the persons listed in Schedule C to the Indictment were killed at the KP Dom. The Trial Chamber is satisfied that these persons fell within the pattern of events that occurred at the KP Dom during the months of June and July 1992, and that the only reasonable explanation for the disappearance of these persons since that time is that they died as a result of acts or omissions, with the relevant state of mind [sc. that required to establish murder], at the KP Dom.” (IT-97-25-T, Judgment, 15 March 2002, para. 330.) (iii) Batković camp 255. As regards the detention camp of Batković, the Applicant claims that many prisoners died at this camp as a result of mistreatment by the Serb guards. The Report of the Commission of Experts reports one witness statement according to which there was a mass grave located next to the Batković prison camp. At least 15 bodies were buried next to a cow stable, and the prisoners neither knew the identity of those buried at the stable nor the circumstances of their deaths (Report of the Commission of Experts, Vol. V, Ann. X, p. 9). The Report furthermore stresses that “[b]ecause of the level of mistreatment, many prisoners died. One man stated that during his stay, mid-July to mid-August, 13 prisoners were beaten to death. Another prisoner died because he had gangrene which went untreated. Five more may have died from hunger. Allegedly, 20 prisoners died prior to September.” (Vol. IV, Ann. VIII, p. 63.) Killings at the Batković camp are also mentioned in the Dispatch of the United States State Department of 19 April 1993. According to a witness, several men died as a result of bad conditions and beatings at the camp (United States Dispatch, 19 April 1993, Vol. 4, No. 30, p. 538). 256. On the other hand, the Respondent stressed that, when the United Nations Special Rapporteur visited the Batković prison camp, he found that: “The prisoners did not complain of ill-treatment and, in general appeared to be in good health.” (Report of 17 November 1992, para. 29) However, the Applicant contends that “it is without any doubt that Mazowiecki was shown a ‘model’ camp”. Prijedor (a) Kozarac and Hambarine 257. With regard to the area of the municipality of Prijedor, the Applicant has placed particular emphasis on the shelling and attacks on Kozarac, 20 km east of Prijedor, and on Hambarine in May 1992. The Applicant contends that after the shelling, Serb forces shot people in their homes and that those who surrendered were taken to a soccer stadium of Kozarac where some men were randomly shot. The Report of the Commission of Experts (Vol. I, Ann. III, pp. 154-155) states that: “The attack on Kozarac lasted three days and caused many villagers to flee to the forest while the soldiers were shooting at ‘every moving thing’. Survivors calculated that at least 2,000 villagers were killed in that period. The villagers’ defence fell on 26 May . . . Serbs then reportedly announced that the villagers had 10 minutes to reach the town’s soccer stadium. However, many people were shot in their homes before given a chance to leave. One witness reported that several thousand people tried to surrender by carrying white flags, but three Serb tanks opened fire on them, killing many.” The Respondent submits that the number of killings is exaggerated and that “there was severe fighting in Kozarac, which took place on 25 and 26 May, and naturally, it should be concluded that a certain number of the victims were Muslim combatants”. 258. As regards Hambarine, the Report of the Commission of Experts (Vol. I, p. 39) states that: “Following an incident in which less than a handful of Serb[ian] soldiers were shot dead under unclear circumstances, the village of Hambarine was given an ultimatum to hand over a policeman who lived where the shooting had occurred. As it was not met, Hambarine was subjected to several hours of artillery bombardment on 23 May 1992. The shells were fired from the aerodrome Urije just outside Prijedor town. When the bombardment stopped, the village was stormed by infantry, including paramilitary units, which sought out the inhabitants in every home. Hambarine had a population of 2,499 in 1991.” The Report of the Special Rapporteur of 17 November 1992, states that: “Between 23 and 25 May, the Muslim village of Hambarine, 5 km south of Prijedor, received an ultimatum: all weapons must be surrendered by 11 a.m. Then, alleging that a shot was fired at a Serbian patrol, heavy artillery began to shell the village and tanks appeared, firing at homes. The villagers fled to Prijedor. Witnesses reported many deaths, probably as many as 1,000.” (Periodic Report of 17 November 1992, p. 8, para. 17 (c).) The Respondent says, citing the indictment in the Stakić case, that “merely 11 names of the victims are known” and that it is therefore impossible that the total number of victims in Hambarine was “as many as 1,000”. 259. The Report of the Commission of Experts found that on 26, 27 or 28 May, the Muslim village of Kozarac, came under attack of heavy Serb artillery. It furthermore notes that: “The population, estimated at 15,000, suffered a great many summary executions, possibly as many as 5,000 persons according to some witnesses.” (Report of the Commission of Experts, Vol. IV, pt. 4.) 260. The Applicant also claimed that killings of members of the protected group were perpetrated in Prijedor itself. The Report of the Commission of Experts, as well as the United Nations Special Rapporteur collected individual witness statements on several incidents of killing in the town of Prijedor (Report of the Commission of Experts, Vol. I, Ann. V, pp. 54 et seq.). In particular, the Special Rapporteur received testimony “from a number of reliable sources” that 200 people were killed in Prijedor on 29 May 1992 (Report of 17 November 1992, para. 17). 261. In the Stakić case, the ICTY Trial Chamber found that “many people were killed during the attacks by the Bosnian Serb army on predominantly Bosnian Muslim villages and towns throughout the Prijedor municipality and several massacres of Muslims took place”, and that “a comprehensive pattern of atrocities against Muslims in Prijedor municipality in 1992 ha[d] been proved beyond reasonable doubt” (IT-97-24-T, Judgment, 31 July 2003, paras. 544 and 546). Further, in the Brđanin case, the Trial Chamber was satisfied that “at least 80 Bosnian Muslim civilians were killed when Bosnian Serb soldiers and police entered the villages of the Kozarac area” (IT-99-36, Judgment, 1 September 2004, para. 403). (b) Camps (i) Omarska camp 262. With respect to the detention camps in the area of Prijedor, the Applicant has stressed that the camp of Omarska was “arguably the cruellest camp in Bosnia and Herzegovina”. The Report of the Commission of Experts gives an account of seven witness statements reporting between 1,000 to 3,000 killings (Vol. IV, Ann. VIII, p. 222). The Report noted that “[s]ome prisoners estimate that on an average there may have been 10 to 15 bodies displayed on the grass each morning, when the first prisoners went to receive their daily food rations. But there were also other dead bodies observed in other places at other times. Some prisoners died from their wounds or other causes in the rooms where they were detained. Constantly being exposed to the death and suffering of fellow prisoners made it impossible for anyone over any period of time to forget in what setting he or she was. Given the length of time Logor Omarska was used, the numbers of prisoners detained in the open, and the allegations that dead bodies were exhibited there almost every morning.” The Report of the Commission of Experts concludes that “all information available . . . seems to indicate that [Omarska] was more than anything else a death camp” (Vol. I, Ann. V, p. 80). The United Nations Secretary-General also received submissions from Canada, Austria and the United States, containing witness statements about the killings at Omarska. 263. In the Opinion and Judgment of the Trial Chamber in the Tadić case, the ICTY made the following findings on Omarska: “Perhaps the most notorious of the camps, where the most horrific conditions existed, was the Omarska camp.” (IT-94-1-T, Judgment, 7 May 1997, para. 155.) “The Trial Chamber heard from 30 witnesses who survived the brutality to which they were systematically subjected at Omarska. By all accounts, the conditions at the camp were horrendous; killings and torture were frequent.” (Ibid., para. 157.) The Trial Chamber in the Stakić Judgment found that “over a hundred people were killed in late July 1992 in the Omarska camp” and that “[a]round late July 1992, 44 people were taken out of Omarska and put in a bus. They were told that they would be exchanged in the direction of Bosanska Krupa; they were never seen again. During the exhumation in Jama Lisac, 56 bodies were found: most of them had died from gunshot injuries.” (IT-97-24-T, Judgment, 31 July 2003, paras. 208 and 210). At least 120 people detained at Omarska were killed after having been taken away by bus. “The corpses of some of those taken away on the buses were later found in Hrastova Glavica and identified. A large number of bodies, 126, were found in this area, which is about 30 kilometres away from Prijedor. In 121 of the cases, the forensic experts determined that the cause of death was gunshot wounds.” (Ibid., para. 212.) 264. In the Brđanin case, the Trial Chamber, in its Judgment of 1 September 2004 held that between 28 May and 6 August, a massive number of people were killed at Omarska camp. The Trial Chamber went on to say specifically that “[a]s of late May 1992, a camp was set up at Omarska, where evidence shows that several hundred Bosnian Muslim and Bosnian Croat civilians from the Prijedor area were detained, and where killings occurred on a massive scale” (IT-99-36-T, Trial Chamber Judgment, 1 September 2004, para. 441). “The Trial Chamber is unable to precisely identify all detainees that were killed at Omarska camp. It is satisfied beyond reasonable doubt however that, at a minimum, 94 persons were killed, including those who disappeared.” (Ibid., para. 448.) (ii) Keraterm camp 265. A second detention camp in the area of Prijedor was the Keraterm camp where, according to the Applicant, killings of members of the protected group were also perpetrated. Several corroborating accounts of a mass execution on the morning of 25 July 1992 in Room 3 at Keraterm camp were presented to the Court. This included the United States Dispatch of the State Department and a letter from the Permanent Representative of Austria to the United Nations dated 5 March 1993, addressed to the Secretary-General. The Report of the Commission of Experts cites three separate witness statements to the effect that ten prisoners were killed per day at Keraterm over three months (Vol. IV, para. 1932; see also Vol. I, Ann. V, para. 445). 266. The Trial Chamber of the ICTY, in the Sikirica et al. case, concerning the commander of Keraterm camp, found that 160 to 200 men were killed or wounded in the so-called Room 3 massacre (IT-95-8-S, Sentencing Judgment, 13 November 2001, para. 103). According to the Judgment, Sikirica himself admitted that there was considerable evidence “concerning the murder and killing of other named individuals at Keraterm during the period of his duties”. There was also evidence that “others were killed because of their rank and position in society and their membership of a particular ethnic group or nationality” (ibid., para. 122). In the Stakić case, the Trial Chamber found that “from 30 April 1992 to 30 September 1992 . . . killings occurred frequently in the Omarska, Keraterm and Trnopolje camps” (IT-97-24-T, Judgment, 31 July 2003, para. 544). (iii) Trnopolje camp 267. The Applicant further contends that there is persuasive evidence of killing at Trnopolje camp, with individual eye-witnesses corroborating each other. The Report of the Commission of Experts found that “[i]n Trnopolje, the regime was far better than in Omarska and Keraterm. Nonetheless, harassment and malnutrition was a problem for all the inmates. Rapes, beatings and other kinds of torture, and even killings, were not rare.” (Report of the Commission of Experts, Vol. IV, Ann. V, p. 10.) “The first period was allegedly the worst in Trnopolje, with the highest numbers of inmates killed, raped, and otherwise mistreated and tortured . . . The people killed in the camp were usually removed soon after by some camp inmates who were ordered by the Serbs to take them away and bury them . . . Albeit Logor Trnopolje was not a death camp like Logor Omarska or Logor Keraterm, the label ‘concentration camp’ is none the less justified for Logor Trnopolje due to the regime prevailing in the camp.” (Report of the Commission of Experts, Vol. I, Ann. V, pp. 88-90.) 268. With regard to the number of killings at Trnopolje, the ICTY considered the period between 25 May and 30 September 1992, the relevant period in the Stakić case (IT-97-24-T, Trial Chamber Judgment, 31 July 2003, paras. 226-227). The Trial Chamber came to the conclusion that “killings occurred frequently in the Omarska, Keraterm and Trnopolje camps and other detention centres” (ibid., para. 544). In the Judgment in the Brđanin case, the Trial Chamber found that in the period from 28 May to October 1992, “numerous killings occurred in Trnopolje camp. A number of detainees died as a result of the beatings received by the guards. Others were killed by camp guards with rifles. The Trial Chamber also [found] that at least 20 inmates were taken outside the camp and killed there.” (IT-99-36-T, Judgment, 1 September 2004, para. 450.) 269. In response to the allegations of killings at the detention camps in the area of Prijedor, the Respondent questions the number of victims, but not the fact that killings occurred. It contends that killings in Prijedor “were committed sporadically and against individuals who were not a significant part of the group”. It further observed that the ICTY had not characterized the acts committed in the Prijedor region as genocide. Banja Luka (i) Manjača camp 270. The Applicant further contends that killings were also frequent at Manjača camp in Banja Luka. The Court notes that multiple witness accounts of killings are contained in the Report of the Commission of Experts (Vol. IV, paras. 370-376) and a mass grave of 540 bodies, “presumably” from prisoners at Manjača, is mentioned in a report on missing persons submitted by Manfred Nowak, the United Nations Expert on Missing Persons: “In September 1995, mass graves were discovered near Krasulje in northwest Bosnia and Herzegovina. The Government has exhumed 540 bodies of persons who were presumably detained at Manjaca concentration camp in 1992. In January 1996, a mass grave containing 27 bodies of Bosnian Muslims was discovered near Sanski Most; the victims were reportedly killed in July 1992 during their transfer from Sanski Most to Manjaca concentration camp (near Banja Luka).” (E/CN.4/1996/36 of 4 March 1996, para. 52.) Brčko (i) Luka camp 271. The Applicant claims that killings of members of the protected group were also perpetrated at Luka camp and Brčko. The Report of the Commission of Experts confirms these allegations. One witness reported that “[s]hootings often occurred at 4.00 a.m. The witness estimates that during his first week at Luka more than 2,000 men were killed and thrown into the Sava River.” (Report of the Commission of Experts Vol. IV, Ann. VIII, p. 93.) The Report further affirms that “[a]pparently, murder and torture were a daily occurrence” (ibid., p. 96), and that it was reported that “[t]he bodies of the dead or dying internees, were often taken to the camp dump or moved behind the prisoner hangars. Other internees were required to move the bodies. Sometimes the prisoners who carried the dead were killed while carrying such bodies to the dump. The dead were also taken and dumped outside the Serbian Police Station located on Majevička Brigada Road in Brčko.” (Ibid.) These findings are corroborated by evidence of a mass grave being found near the site (Report of the Commission of Experts, Vol. IV, Ann. VIII, p. 101 and United States State Department Dispatch). 272. In the Jelisić case, eight of the 13 murders to which the accused pleaded guilty were perpetrated at Luka camp and five were perpetrated at the Brčko police station (IT-95-10-T, Trial Chamber Judgment, 14 December 1999, paras. 37-38). The Trial Chamber further held that “[a]lthough the Trial Chamber is not in a position to establish the precise number of victims ascribable to Goran Jelisić for the period in the indictment, it notes that, in this instance, the material element of the crime of genocide has been satisfied” (ibid., para. 65). 273. In the Milošević Decision on Motion for Judgment of Acquittal, the Trial Chamber found that many Muslims were detained in Luka camp in May and June 1992 and that many killings were observed by witnesses (IT-02-54-T, Decision on Motion for Judgment of Acquittal, 16 June 2004, paras. 159, 160-168), it held that “[t]he conditions and treatment to which the detainees at Luka Camp were subjected were terrible and included regular beatings, rapes, and killings” (ibid., para. 159). “At Luka Camp . . . The witness personally moved about 12 to 15 bodies and saw approximately 100 bodies stacked up like firewood at Luka Camp; each day a refrigerated meat truck from the local Bimeks Company in Brčko would come to take away the dead bodies.” (Ibid., para. 161.) 274. The Court notes that the Brđanin Trial Chamber Judgment of 1 September 2004 made a general finding as to killings of civilians in camps and municipalities at Banja Luka, Prijedor, Sanski Most, Ključ, Kotor Varoš, Bosanski Novi. It held that: “In sum, the Trial Chamber is satisfied beyond reasonable doubt that, considering all the incidents described in this section of the judgment, at least 1669 Bosnian Muslims and Bosnian Croats were killed by Bosnian Serb forces, all of whom were non-combatants.” (IT-99-36-T, Judgment, 1 September 2004, para. 465.) There are contemporaneous Security Council and General Assembly resolutions condemning the killing of civilians in connection with ethnic cleansing, or expressing alarm at reports of mass killings (Security Council resolution 819 (1993), Preamble, paras. 6 and 7; General Assembly resolution 48/153 (1993), paras. 5 and 6; General Assembly resolution 49/196 (1994), para. 6). 275. The Court further notes that several resolutions condemn specific incidents. These resolutions, inter alia, condemn “the Bosnian Serb forces for their continued offensive against the safe area of Goražde, which has resulted in the death of numerous civilians” (Security Council resolution 913 (1994), Preamble, para. 5); condemn ethnic cleansing “perpetrated in Banja Luka, Bijeljina and other areas of the Republic of Bosnia and Herzegovina under the control of Bosnian Serb forces” (Security Council resolution 941 (1994), para. 2); express concern at “grave violations of international humanitarian law and of human rights in and around Srebrenica, and in the areas of Banja Luka and Sanski Most, including reports of mass murder” (Security Council resolution 1019 (1995), Preamble, para. 2); and condemn “the indiscriminate shelling of civilians in the safe areas of Sarajevo, Tuzla, Bihać and Goražde and the use of cluster bombs on civilian targets by Bosnian Serb and Croatian Serb forces” (General Assembly resolution 50/193 (1995) para. 5). * 276. On the basis of the facts set out above, the Court finds that it is established by overwhelming evidence that massive killings in specific areas and detention camps throughout the territory of Bosnia and Herzegovina were perpetrated during the conflict. Furthermore, the evidence presented shows that the victims were in large majority members of the protected group, which suggests that they may have been systematically targeted by the killings. The Court notes in fact that, while the Respondent contested the veracity of certain allegations, and the number of victims, or the motives of the perpetrators, as well as the circumstances of the killings and their legal qualification, it never contested, as a matter of fact, that members of the protected group were indeed killed in Bosnia and Herzegovina. The Court thus finds that it has been established by conclusive evidence that massive killings of members of the protected group occurred and that therefore the requirements of the material element, as defined by Article II (a) of the Convention, are fulfilled. At this stage of its reasoning, the Court is not called upon to list the specific killings, nor even to make a conclusive finding on the total number of victims. 277. The Court is however not convinced, on the basis of the evidence before it, that it has been conclusively established that the massive killings of members of the protected group were committed with the specific intent (dolus specialis) on the part of the perpetrators to destroy, in whole or in part, the group as such. The Court has carefully examined the criminal proceedings of the ICTY and the findings of its Chambers, cited above, and observes that none of those convicted were found to have acted with specific intent (dolus specialis). The killings outlined above may amount to war crimes and crimes against humanity, but the Court has no jurisdiction to determine whether this is so. In the exercise of its jurisdiction under the Genocide Convention, the Court finds that it has not been established by the Applicant that the killings amounted to acts of genocide prohibited by the Convention. As to the Applicant’s contention that the specific intent (dolus specialis) can be inferred from the overall pattern of acts perpetrated throughout the conflict, examination of this must be reserved until the Court has considered all the other alleged acts of genocide (violations of Article II, paragraphs (b) to (e)) (see paragraph 370 below). (5) The massacre at Srebrenica 278. The atrocities committed in and around Srebrenica are nowhere better summarized than in the first paragraph of the Judgment of the Trial Chamber in the Krstić case: “The events surrounding the Bosnian Serb take-over of the United Nations (‘UN’) ‘safe area’ of Srebrenica in Bosnia and Herzegovina, in July 1995, have become well known to the world. Despite a UN Security Council resolution declaring that the enclave was to be ‘free from armed attack or any other hostile act’, units of the Bosnian Serb Army (‘VRS’) launched an attack and captured the town. Within a few days, approximately 25,000 Bosnian Muslims, most of them women, children and elderly people who were living in the area, were uprooted and, in an atmosphere of terror, loaded onto overcrowded buses by the Bosnian Serb forces and transported across the confrontation lines into Bosnian Muslim-held territory. The military-aged Bosnian Muslim men of Srebrenica, however, were consigned to a separate fate. As thousands of them attempted to flee the area, they were taken prisoner, detained in brutal conditions and then executed. More than 7,000 people were never seen again.” (IT-98-33-T, Judgment, 2 August 2001, para. 1; footnotes omitted.) While the Respondent raises a question about the number of deaths, it does not essentially question that account. What it does question is whether specific intent (dolus specialis) existed and whether the acts complained of can be attributed to it. It also calls attention to the attacks carried out by the Bosnian army from within Srebrenica and the fact that the enclave was never demilitarized. In the Respondent’s view the military action taken by the Bosnian Serbs was in revenge and part of a war for territory. 279. The Applicant contends that the planning for the final attack on Srebrenica must have been prepared quite some time before July 1995. It refers to a report of 4 July 1994 by the commandant of the Bratunac Brigade. He outlined the “final goal” of the VRS: “an entirely Serbian Podrinje. The enclaves of Srebrenica, Žepa and Goražde must be militarily defeated.” The report continued: “We must continue to arm, train, discipline, and prepare the RS Army for the execution of this crucial task ⎯ the expulsion of Muslims from the Srebrenica enclave. There will be no retreat when it comes to the Srebrenica enclave, we must advance. The enemy’s life has to be made unbearable and their temporary stay in the enclave impossible so that they leave en masse as soon as possible, realising that they cannot survive there.” The Chamber in the Blagojević case mentioned testimony showing that some “members of the Bratunac Brigade . . . did not consider this report to be an order. Testimony of other witnesses and documentary evidence show that the strategy was in fact implemented.” (IT-02-60-T, Trial Chamber Judgment, 17 January 2005, para. 104; footnotes omitted.) The Applicant sees the “final goal” described here as “an entirely Serbian Podrinje”, in conformity with the objective of a Serbian region 50 km to the west of the Drina river identified in an April or a May 1991 meeting of the political and State leadership of Yugoslavia. The Court observes that the object stated in the report, like the 1992 Strategic Objectives, does not envisage the destruction of the Muslims in Srebrenica, but rather their departure. The Chamber did not give the report any particular significance. 280. The Applicant, like the Chamber, refers to a meeting on 17 March 1995 between the Commander of the United Nations Protection Force (UNPROFOR) and General Mladić, at which the latter expressed dissatisfaction with the safe area régime and indicated that he might take military action against the eastern enclaves. He gave assurances however for the safety of the Bosnian Muslim population of those enclaves. On the following day, 8 March 1995, President Karadžić issued the Directive for Further Operations 7, also quoted by the Chamber and the Applicant: “‘Planned and well-thought-out combat operations’ were to create ‘an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of both enclaves’.” The Blagojević Chamber continues as follows: “The separation of the Srebrenica and Žepa enclaves became the task of the Drina Corps. As a result of this directive, General Ratko Mladić on 31 March 1995 issued Directive for Further Operations, Operative No. 7/1, which further directive specified the Drina Corps’ tasks.” (Ibid., pp. 38-39, para. 106.) 281. Counsel for the Applicant asked in respect of the first of those directives “[w]hat could be a more clear-cut definition of the genocidal intent to destroy on the part of the authorities in Pale?”. As with the July 1994 report, the Court observes that the expulsion of the inhabitants would achieve the purpose of the operation. That observation is supported by the ruling of the Appeals Chamber in the Krstić case that the directives were “insufficiently clear” to establish specific intent (dolus specialis) on the part of the members of the Main Staff who issued them. “Indeed, the Trial Chamber did not even find that those who issued Directives 7 and 7.1 had genocidal intent, concluding instead that the genocidal plan crystallized at a later stage.” (IT-98-33-A, Judgment, 19 April 2004, para. 90.) 282. A Netherlands Battalion (Dutchbat) was deployed in the Srebrenica safe area. Within that area in January 1995 it had about 600 personnel. By February and through the spring the VRS was refusing to allow the return of Dutch soldiers who had gone on leave, causing their numbers to drop by at least 150, and were restricting the movement of international convoys of aid and supplies to Srebrenica and to other enclaves. It was estimated that without new supplies about half of the population of Srebrenica would be without food after mid-June. 283. On 2 July the Commander of the Drina Corps issued an order for active combat operations; its stated objective on the Srebrenica enclave was to reduce “the enclave to its urban area”. The attack began on 6 July with rockets exploding near the Dutchbat headquarters in Potočari; 7 and 8 July were relatively quiet because of poor weather, but the shelling intensified around 9 July. Srebrenica remained under fire until 11 July when it fell, with the Dutchbat observation posts having been taken by the VRS. Contrary to the expectations of the VRS, the Bosnia and Herzegovina army showed very little resistance (Blagojević, IT-02-60-T, Trial Chamber Judgment, 17 January 2005, para. 125). The United Nations Secretary-General’s report quotes an assessment made by United Nations military observers on the afternoon of 9 July which concluded as follows: “ ‘the BSA offensive will continue until they achieve their aims. These aims may even be widening since the United Nations response has been almost non-existent and the BSA are now in a position to overrun the enclave if they wish.’ Documents later obtained from Serb sources appear to suggest that this assessment was correct. Those documents indicate that the Serb attack on Srebrenica initially had limited objectives. Only after having advanced with unexpected ease did the Serbs decide to overrun the entire enclave. Serb civilian and military officials from the Srebrenica area have stated the same thing, adding, in the course of discussions with a United Nations official, that they decided to advance all the way to Srebrenica town when they assessed that UNPROFOR was not willing or able to stop them.” (A/54/549, para. 264.) Consistently with that conclusion, the Chamber in the Blagojević case says this: “As the operation progressed its military object changed from ‘reducing the enclave to the urban area’ [the objective stated in a Drina Corps order of 2 July] to the taking-over of Srebrenica town and the enclave as a whole. The Trial Chamber has heard no direct evidence as to the exact moment the military objective changed. The evidence does show that President Karadžić was ‘informed of successful combat operations around Srebrenica . . . which enable them to occupy the very town of Srebrenica’ on 9 July. According to Miroslav Deronjić, the President of the Executive Board of the Bratunac Municipality, President Karadžić told him on 9 July that there were two options in relation to the operation, one of which was the complete take-over of Srebrenica. Later on 9 July, President Karadžić ‘agreed with continuation of operations for the takeover of Srebrenica’. By the morning of 11 July the change of objective of the ‘Krivaja 95’ operation had reached the units in the field; and by the middle of the afternoon, the order to enter Srebrenica had reached the Bratunac Brigades’s IKM in Pribićevac and Colonel Blagojević. Miroslav Deronjić visited the Bratunac Brigade IKM in Pribićevac on 11 July. He briefly spoke with Colonel Blagojević about the Srebrenica operation. According to Miroslav Deronjić, the VRS had just received the order to enter Srebrenica town.” (IT-02-60-T, Trial Chamber Judgment, 17 January 2005, para. 130.) 284. The Chamber then begins an account of the dreadful aftermath of the fall of Srebrenica. A Dutchbat Company on 11 July started directing the refugees to the UNPROFOR headquarters in Potočari which was considered to be the only safe place for them. Not all the refugees went towards Potočari; many of the Bosnian Muslim men took to the woods. Refugees were soon shelled and shot at by the VRS despite attempts to find a safe route to Potočari where, to quote the ICTY, chaos reigned: “The crowd outside the UNPROFOR compound grew by the thousands during the course of 11 July. By the end of the day, an estimated 20,000 to 30,000 Bosnian Muslims were in the surrounding area and some 4,000 to 5,000 refugees were in the UNPROFOR compound. (b) Conditions in Potočari The standards of hygiene within Potočari had completely deteriorated. Many of the refugees seeking shelter in the UNPROFOR headquarters were injured. Medical assistance was given to the extent possible; however, there was a dramatic shortage of medical supplies. As a result of the VRS having prevented aid convoys from getting through during the previous months, there was hardly any fresh food in the DutchBat headquarters. There was some running water available outside the compound. From 11 to 13 July 1995 the temperature was very high, reaching 35 degrees centigrade and this small water supply was insufficient for the 20,000 to 30,000 refugees who were outside the UNPROFOR compound.” (Ibid., paras. 146-147.) The Tribunal elaborates on those matters and some efforts made by Bosnian Serb and Serbian authorities, i.e., the local Municipal Assembly, the Bratunac Brigade and the Drina Corps, as well as UNHCR, to assist the Bosnian Muslim refugees (ibid., para. 148). 285. On 10 July at 10.45 p.m., according to the Secretary-General’s 1999 Report, the delegate in Belgrade of the Secretary-General’s Special Representative telephoned the Representative to say that he had seen President Milošević who had responded that not much should be expected of him because “the Bosnian Serbs did not listen to him” (A/54/549, para. 292). At 3 p.m. the next day, the President rang the Special Representative and, according to the same report, “stated that the Dutchbat soldiers in Serb-held areas had retained their weapons and equipment, and were free to move about. This was not true.” (Ibid., para. 307.) About 20 minutes earlier two NATO aircraft had dropped two bombs on what were thought to be Serb vehicles advancing towards the town from the south. The Secretary-General’s report gives the VRS reaction: “Immediately following this first deployment of NATO close air support, the BSA radioed a message to Dutchbat. They threatened to shell the town and the compound where thousands of inhabitants had begun to gather, and to kill the Dutchbat soldiers being held hostage, if NATO continued with its use of air power. The Special Representative of the Secretary-General recalled having received a telephone call from the Netherlands Minister of Defence at this time, requesting that the close air support action be discontinued, because Serb soldiers on the scene were too close to Netherlands troops, and their safety would be jeopardized. The Special Representative considered that he had no choice but to comply with this request.” (Ibid., para. 306.) 286. The Trial Chamber in the Blagojević case recorded that on 11 July at 8 p.m. there was a meeting between a Dutch colonel and General Mladić and others. The former said that he had come to negotiate the withdrawal of the refugees and to ask for food and medicine for them. He sought assurances that the Bosnian Muslim population and Dutchbat would be allowed to withdraw from the area. General Mladić said that the civilian population was not the target of his actions and the goal of the meeting was to work out an arrangement. He then said “‘you can all leave, all stay, or all die here’ . . . ‘we can work out an agreement for all this to stop and for the issues of the civilian population, your soldiers and the Muslim military to be resolved in a peaceful way’” (Blagojević, IT-02-60-T, Trial Chamber Judgment, 17 January 2005, paras. 150-152). Later that night at a meeting beginning at 11 p.m., attended by a representative of the Bosnian Muslim community, General Mladić said: “‘Number one, you need to lay down your weapons and I guarantee that all those who lay down their weapon will live. I give you my word, as a man and a General, that I will use my influence to help the innocent Muslim population which is not the target of the combat operations carried out by the VRS . . . In order to make a decision as a man and a Commander, I need to have a clear position of the representatives of your people on whether you want to survive . . . stay or vanish. I am prepared to receive here tomorrow at 10 a.m. hrs. a delegation of officials from the Muslim side with whom I can discuss the salvation of your people from . . . the former enclave of Srebrenica . . . Nesib [a Muslim representative], the future of your people is in your hands, not only in this territory . . . Bring the people who can secure the surrender of weapons and save your people from destruction.’ The Trial Chamber finds, based on General Mladić’s comments, that he was unaware that the Bosnian Muslim men had left the Srebrenica enclave in the column. General Mladić also stated that he would provide the vehicles to transport the Bosnian Muslims out of Potočari. The Bosnian Muslim and Bosnian Serb sides were not on equal terms and Nesib Mandžić felt his presence was only required to put up a front for the international public. Nesib Mandžić felt intimidated by General Mladić. There was no indication that anything would happen the next day.” (Ibid., paras. 156-158.) 287. A third meeting was held the next morning, 12 July. The Tribunal in the Blagojević case gives this account: “After the Bosnian Muslim representatives had introduced themselves, General Mladić stated: ‘I want to help you, but I want absolute co-operation from the civilian population because your army has been defeated. There is no need for your people to get killed, your husband, your brothers or your neighbours . . . As I told this gentleman last night, you can either survive or disappear. For your survival, I demand that all your armed men, even those who committed crimes, and many did, against our people, surrender their weapons to the VRS . . . You can choose to stay or you can choose to leave. If you wish to leave, you can go anywhere you like. When the weapons have been surrendered every individual will go where they say they want to go. The only thing is to provide the needed gasoline. You can pay for it if you have the means. If you can’t pay for it, UNPROFOR should bring four or five tanker trucks to fill up trucks . . .’ Čamila Omanović [one of the Muslim representatives] interpreted this to mean that if the Bosnian Muslim population left they would be saved, but that if they stayed they would die. General Mladić did not give a clear answer in relation to whether a safe transport of the civilian population out of the enclave would be carried out. General Mladić stated that the male Bosnian Muslim population from the age of 16 to 65 would be screened for the presence of war criminals. He indicated that after this screening, the men would be returned to the enclave. This was the first time that the separation of men from the rest of the population was mentioned. The Bosnian Muslim representatives had the impression that ‘everything had been prepared in advance, that there was a team of people working together in an organized manner’ and that ‘Mladić was the chief organizer.’ The third Hotel Fontana meeting ended with an agreement that the VRS would transport the Bosnian Muslim civilian population out of the enclave to ABiH-held territory, with the assistance of UNPROFOR to ensure that the transportation was carried out in a humane manner.” (Ibid., paras. 160-161.) The Court notes that the accounts of the statements made at the meetings come from transcripts of contemporary video recordings. 288. The VRS and MUP of the Republika Srpska from 12 July separated men aged 16 to approximately 60 or 70 from their families. The Bosnian Muslim men were directed to various locations but most were sent to a particular house (“The White House”) near the UNPROFOR headquarters in Potočari, where they were interrogated. During the afternoon of 12 July a large number of buses and other vehicles arrived in Potočari including some from Serbia. Only women, children and the elderly were allowed to board the buses bound for territory held by the Bosnia and Herzegovina military. Dutchbat vehicles escorted convoys to begin with, but the VRS stopped that and soon after stole 16-18 Dutchbat jeeps, as well as around 100 small arms, making further escorts impossible. Many of the Bosnian Muslim men from Srebrenica and its surroundings including those who had attempted to flee through the woods were detained and killed. 289. Mention should also be made of the activities of certain paramilitary units, the “Red Berets” and the “Scorpions”, who are alleged by the Applicant to have participated in the events in and around Srebrenica. The Court was presented with certain documents by the Applicant, which were said to show that the “Scorpions” were indeed sent to the Trnovo area near Srebrenica and remained there through the relevant time period. The Respondent cast some doubt on the authenticity of these documents (which were copies of intercepts, but not originals) without ever formally denying their authenticity. There was no denial of the fact of the relocation of the “Scorpions” to Trnovo. The Applicant during the oral proceedings presented video material showing the execution by paramilitaries of six Bosnian Muslims, in Trnovo, in July 1995. 290. The Trial Chambers in the Krstić and Blagojević cases both found that Bosnian Serb forces killed over 7,000 Bosnian Muslim men following the takeover of Srebrenica in July 1995 (Krstić, IT-98-33-T, Judgment, 2 August 2001, paras. 426-427 and Blagojević, IT-02-60-T, Judgment, 17 January 2005, para. 643). Accordingly they found that the actus reus of killings in Article II (a) of the Convention was satisfied. Both also found that actions of Bosnian Serb forces also satisfied the actus reus of causing serious bodily or mental harm, as defined in Article II (b) of the Convention ⎯ both to those who where about to be executed, and to the others who were separated from them in respect of their forced displacement and the loss suffered by survivors among them (Krstić, ibid., para. 543, and Blagojević, ibid., paras. 644-654). 291. The Court is fully persuaded that both killings within the terms of Article II (a) of the Convention, and acts causing serious bodily or mental harm within the terms of Article II (b) thereof occurred during the Srebrenica massacre. Three further aspects of the ICTY decisions relating to Srebrenica require closer examination ⎯ the specific intent (dolus specialis), the date by which the intent was formed, and the definition of the “group” in terms of Article II. A fourth issue which was not directly before the ICTY but which this Court must address is the involvement, if any, of the Respondent in the actions. 292. The issue of intent has been illuminated by the Krstić Trial Chamber. In its findings, it was convinced of the existence of intent by the evidence placed before it. Under the heading “A Plan to Execute the Bosnian Muslim Men of Srebrenica”, the Chamber “finds that, following the takeover of Srebrenica in July 1995, the Bosnian Serbs devised and implemented a plan to execute as many as possible of the military aged Bosnian Muslim men present in the enclave” (IT-98-33-T, Judgment, 2 August 2001, para. 87). All the executions, the Chamber decided, “systematically targeted Bosnian Muslim men of military age, regardless of whether they were civilians or soldiers” (ibid., para. 546). While “[t]he VRS may have initially considered only targeting military men for execution, . . . [the] evidence shows, however, that a decision was taken, at some point, to capture and kill all the Bosnian Muslim men indiscriminately. No effort was made to distinguish the soldiers from the civilians.” (Ibid., para. 547.) Under the heading “Intent to Destroy”, the Chamber reviewed the Parties’ submissions and the documents, concluding that it would “adhere to the characterization of genocide which encompass[es] only acts committed with the goal of destroying all or part of a group” (ibid., para. 571; original emphasis). The acts of genocide need not be premeditated and the intent may become the goal later in an operation (ibid., para. 572). “Evidence presented in this case has shown that the killings were planned: the number and nature of the forces involved, the standardized coded language used by the units in communicating information about the killings, the scale of the executions, the invariability of the killing methods applied, indicate that a decision was made to kill all the Bosnian Muslim military aged men. The Trial Chamber is unable to determine the precise date on which the decision to kill all the military aged men was taken. Hence, it cannot find that the killings committed in Potočari on 12 and 13 July 1995 formed part of the plan to kill all the military aged men. Nevertheless, the Trial Chamber is confident that the mass executions and other killings committed from 13 July onwards were part of this plan.” (Ibid., paras. 572-573; see also paras. 591-598.) 293. The Court has already quoted (paragraph 281) the passage from the Judgment of the Appeals Chamber in the Krstić case rejecting the Prosecutor’s attempted reliance on the Directives given earlier in July, and it would recall the evidence about the VRS’s change of plan in the course of the operation in relation to the complete takeover of the enclave. The Appeals Chamber also rejected the appeal by General Krstić against the finding that genocide occurred in Srebrenica. It held that the Trial Chamber was entitled to conclude that the destruction of such a sizeable number of men, one fifth of the overall Srebrenica community, “‘would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica’” (IT-98-33-A, Appeals Chamber Judgment, 19 April 2004, paras. 28-33); and the Trial Chamber, as the best assessor of the evidence presented at trial, was entitled to conclude that the evidence of the transfer of the women and children supported its finding that some members of the VRS Main Staff intended to destroy the Bosnian Muslims in Srebrenica. The Appeals Chamber concluded this part of its Judgment as follows: “The gravity of genocide is reflected in the stringent requirements which must be satisfied before this conviction is imposed. These requirements ⎯ the demanding proof of specific intent and the showing that the group was targeted for destruction in its entirety or in substantial part ⎯ guard against a danger that convictions for this crime will be imposed lightly. Where these requirements are satisfied, however, the law must not shy away from referring to the crime committed by its proper name. By seeking to eliminate a part of the Bosnian Muslims, the Bosnian Serb forces committed genocide. They targeted for extinction the forty thousand Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general. They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them solely on the basis of their identity. The Bosnian Serb forces were aware, when they embarked on this genocidal venture, that the harm they caused would continue to plague the Bosnian Muslims. The Appeals Chamber states unequivocally that the law condemns, in appropriate terms, the deep and lasting injury inflicted, and calls the massacre at Srebrenica by its proper name: genocide. Those responsible will bear this stigma, and it will serve as a warning to those who may in future contemplate the commission of such a heinous act. In concluding that some members of the VRS Main Staff intended to destroy the Bosnian Muslims of Srebrenica, the Trial Chamber did not depart from the legal requirements for genocide. The Defence appeal on this issue is dismissed.” (Ibid., paras. 37-38.) 294. On one view, taken by the Applicant, the Blagojević Trial Chamber decided that the specific intent (dolus specialis) was formed earlier than 12 or 13 July, the time chosen by the Krstić Chamber. The Court has already called attention to that Chamber’s statement that at some point (it could not determine “the exact moment”) the military objective in Srebrenica changed, from “reducing the enclave to the urban area” (stated in a Drina Corps order of 2 July 1995 referred to at times as the “Krivaja 95 operation”) to taking over Srebrenica town and the enclave as a whole. Later in the Judgment, under the heading “Findings: was genocide committed?”, the Chamber refers to the 2 July document: “The Trial Chamber is convinced that the criminal acts committed by the Bosnian Serb forces were all parts of one single scheme to commit genocide of the Bosnian Muslims of Srebrenica, as reflected in the ‘Krivaja 95 operation’, the ultimate objective of which was to eliminate the enclave and, therefore, the Bosnian Muslim community living there.” (Blagojević, IT-02-60-T, Judgment, 17 January 2005, para. 674.) The Chamber immediately goes on to refer only to the events ⎯ the massacres and the forcible transfer of the women and children ⎯ after the fall of Srebrenica, that is sometime after the change of military objective on 9 or 10 July. The conclusion on intent is similarly focussed: “The Trial Chamber has no doubt that all these acts constituted a single operation executed with the intent to destroy the Bosnian Muslim population of Srebrenica. The Trial Chamber finds that the Bosnian Serb forces not only knew that the combination of the killings of the men with the forcible transfer of the women, children and elderly, would inevitably result in the physical disappearance of the Bosnian Muslim population of Srebrenica, but clearly intended through these acts to physically destroy this group.” (Ibid., para. 677.) (See similarly all but the first item in the list in paragraph 786.) 295. The Court’s conclusion, fortified by the Judgments of the Trial Chambers in the Krstić and Blagojević cases, is that the necessary intent was not established until after the change in the military objective and after the takeover of Srebrenica, on about 12 or 13 July. This may be significant for the application of the obligations of the Respondent under the Convention (paragraph 423 below). The Court has no reason to depart from the Tribunal’s determination that the necessary specific intent (dolus specialis) was established and that it was not established until that time. 296. The Court now turns to the requirement of Article II that there must be the intent to destroy a protected “group” in whole or in part. It recalls its earlier statement of the law and in particular the three elements there discussed: substantiality (the primary requirement), relevant geographic factors and the associated opportunity available to the perpetrators, and emblematic or qualitative factors (paragraphs 197-201). Next, the Court recalls the assessment it made earlier in the Judgment of the persuasiveness of the ICTY’s findings of facts and its evaluation of them (paragraph 223). Against that background it turns to the findings in the Krstić case (IT-98-33-T, Trial Chamber Judgment, 2 August 2001, paras. 551-599 and IT-98-33-A, Appeals Chamber Judgment, 19 April 2004, paras. 6-22), in which the Appeals Chamber endorsed the findings of the Trial Chamber in the following terms. “In this case, having identified the protected group as the national group of Bosnian Muslims, the Trial Chamber concluded that the part the VRS Main Staff and Radislav Krstić targeted was the Bosnian Muslims of Srebrenica, or the Bosnian Muslims of Eastern Bosnia. This conclusion comports with the guidelines outlined above. The size of the Bosnian Muslim population in Srebrenica prior to its capture by the VRS forces in 1995 amounted to approximately forty thousand people. This represented not only the Muslim inhabitants of the Srebrenica municipality but also many Muslim refugees from the surrounding region. Although this population constituted only a small percentage of the overall Muslim population of Bosnia and Herzegovina at the time, the importance of the Muslim community of Srebrenica is not captured solely by its size.” (IT-98-33-A, Judgment, 19 April 2004, para. 15; footnotes omitted.) The Court sees no reason to disagree with the concordant findings of the Trial Chamber and the Appeals Chamber. 297. The Court concludes that the acts committed at Srebrenica falling within Article II (a) and (b) of the Convention were committed with the specific intent to destroy in part the group of the Muslims of Bosnia and Herzegovina as such; and accordingly that these were acts of genocide, committed by members of the VRS in and around Srebrenica from about 13 July 1995. (6) Article II (b): Causing serious bodily or mental harm to members of the protected group 298. The Applicant contends that besides the massive killings, systematic serious harm was caused to the non-Serb population of Bosnia and Herzegovina. The Applicant includes the practice of terrorizing the non-Serb population, the infliction of pain and the administration of torture as well as the practice of systematic humiliation into this category of acts of genocide. Further, the Applicant puts a particular emphasis on the issue of systematic rapes of Muslim women, perpetrated as part of genocide against the Muslims in Bosnia during the conflict. 299. The Respondent does not dispute that, as a matter of legal qualification, the crime of rape may constitute an act of genocide, causing serious bodily or mental harm. It disputes, however, that the rapes in the territory of Bosnia and Herzegovina were part of a genocide perpetrated therein. The Respondent, relying on the Report of the Commission of Experts, maintains that the rapes and acts of sexual violence committed during the conflict, were not part of genocide, but were committed on all sides of the conflict, without any specific intent (dolus specialis). 230. The Court notes that there is no dispute between the Parties that rapes and sexual violence could constitute acts of genocide, if accompanied by a specific intent to destroy the protected group. It notes also that the ICTR, in its Judgment of 2 September 1998 in the Akayesu case , addressed the issue of acts of rape and sexual violence as acts of genocide in the following terms: “Indeed, rape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims and are even, according to the Chamber, one of the worst ways of inflicting harm on the victim as he or she suffers both bodily and mental harm” (ICTR-96-4-T, Trial Chamber Judgment, 2 September 1998, para. 731). The ICTY, in its Judgment of 31 July 2003 in the Stakić case, recognized that: “‘Causing serious bodily and mental harm’ in subparagraph (b) [of Article 4 (2) of the Statute of the ICTY] is understood to mean, inter alia, acts of torture, inhumane or degrading treatment, sexual violence including rape, interrogations combined with beatings, threats of death, and harm that damages health or causes disfigurement or injury. The harm inflicted need not be permanent and irremediable.” (IT-97-24-T, Trial Chamber Judgment, 31 July 2003, para. 516.) 301. The Court notes furthermore that Security Council and General Assembly resolutions contemporary with the facts are explicit in referring to sexual violence. These resolutions were in turn based on reports before the General Assembly and the Security Council, such as the Reports of the Secretary-General, the Commission of Experts, the Special Rapporteur for Human Rights, Tadeusz Mazowiecki, and various United Nations agencies in the field. The General Assembly stressed the “extraordinary suffering of the victims of rape and sexual violence” (General Assembly resolution 48/143 (1993), Preamble; General Assembly resolution 50/192 (1995), para. 8). In resolution 48/143 (1993), the General Assembly declared it was: “Appalled at the recurring and substantiated reports of widespread rape and abuse of women and children in the areas of armed conflict in the former Yugoslavia, in particular its systematic use against the Muslim women and children in Bosnia and Herzegovina by Serbian forces” (Preamble, para. 4). 302. Several Security Council resolutions expressed alarm at the “massive, organised and systematic detention and rape of women”, in particular Muslim women in Bosnia and Herzegovina (Security Council resolutions 798 (1992), Preamble, para. 2; resolution 820 (1993), para. 6; 827 (1993), Preamble, para. 3). In terms of other kinds of serious harm, Security Council resolution 1034 (1995) condemned “in the strongest possible terms the violations of international humanitarian law and of human rights by Bosnian Serb and paramilitary forces in the areas of Srebrenica,Žepa, Banja Luka and Sanski Most as described in the report of the Secretary-General of 27 November 1995 and showing a consistent pattern of summary executions, rape, mass expulsions, arbitrary detentions, forced labour and large-scale disappearances” (para. 2). The Security Council further referred to a “persistent and systematic campaign of terror” in Banja Luka, Bijeljina and other areas under the control of Bosnian Serb forces (Security Council resolution 941 (1994), Preamble, para. 4). It also expressed concern at reports of mass murder, unlawful detention and forced labour, rape, and deportation of civilians in Banja Luka and Sanski Most (Security Council resolution 1019 (1995), Preamble, para. 2). 303. The General Assembly also condemned specific violations including torture, beatings, rape, disappearances, destruction of houses, and other acts or threats of violence aimed at forcing individuals to leave their homes (General Assembly resolution 47/147 (1992), para. 4; see also General Assembly resolution 49/10 (1994), Preamble, para. 14 and General Assembly resolution 50/193 (1995), para. 2). 304. The Court will now examine the specific allegations of the Applicant under this heading, in relation to the various areas and camps identified as having been the scene of acts causing “bodily or mental harm” within the meaning of the Convention. As regards the events of Srebrenica, the Court has already found it to be established that such acts were committed (paragraph 291 above). Drina River Valley (a) Zvornik 305. As regards the area of the Drina River Valley, the Applicant has stressed the perpetration of acts and abuses causing serious bodily or mental harm in the events at Zvornik. In particular, the Court has been presented with a report on events at Zvornik which is based on eye-witness accounts and extensive research (Hannes Tretter et al., “‘Ethnic cleansing’ Operations in the Northeast Bosnian-City of Zvornik from April through June 1992”, Ludwig Boltzmann Institute of Human Rights (1994), p. 48). The report of the Ludwig Boltzmann Institute gives account of a policy of terrorization, forced relocation, torture, rape during the takeover of Zvornik in April-June 1992. The Report of the Commission of Experts received 35 reports of rape in the area of Zvornik in May 1992 (Vol. V, Ann. IX, p. 54). (b) Foča 306. Further acts causing serious bodily and mental harm were perpetrated in the municipality of Foča. The Applicant, relying on the Judgment in the Kunarac et al. case (IT-96-23-T and IT-96-23/1-T, Trial Chamber Judgment, 22 February 2001, paras. 574 and 592), claims, in particular that many women were raped repeatedly by Bosnian Serb soldiers or policemen in the city of Foča. (c) Camps (i) Batković camp 307. The Applicant further claims that in Batković camp, prisoners were frequently beaten and mistreated. The Report of the Commission of Experts gives an account of a witness statement according to which “prisoners were forced to perform sexual acts with each other, and sometimes with guards”. The Report continues: “Reports of the frequency of beatings vary from daily beatings to beatings 10 times each day.” (Report of the Commission of Experts, Vol. IV, Ann. VIII, p. 62, para. 469.) Individual witness accounts reported by the Commission of Experts (Report of the Commission of Experts, Vol. IV, Ann. VIII, pp. 62-63 and Ann. X, p. 9) provide second-hand testimony that beatings occurred and prisoners lived in terrible conditions. As already noted above (paragraph 256), however, the periodic Report of Special Rapporteur Mazowiecki of 17 November 1992 stated that “[t]he prisoners . . . appeared to be in good health” (p. 13); but according to the Applicant, Mazowiecki was shown a “model” camp and therefore his impression was inaccurate. The United States Department of State Dispatch of 19 April 1993 (Vol. 4, No. 16), alleges that in Batković camp, prisoners were frequently beaten and mistreated. In particular, the Dispatch records two witness statements according to which “[o]n several occasions, they and other prisoners were forced to remove their clothes and perform sex acts on each other and on some guards”. (ii) Sušica camp 308. According to the Applicant, rapes and physical assaults were also perpetrated at Sušica camp; it pointed out that in the proceedings before the ICTY, in the “Rule 61 Review of the Indictment” and the Sentencing Judgment, in the Nikolić case, the accused admitted that many Muslim women were raped and subjected to degrading physical and verbal abuse in the camp and at locations outside of it (Nikolić, IT-94-2-T, Sentencing Judgment, 18 December 2003, paras. 87-90), and that several men were tortured in that same camp. (iii) Foča Kazneno-Popravní Dom camp 309. With regard to the Foča Kazneno-Popravní Dom camp, the Applicant asserts that beatings, rapes of women and torture were perpetrated. The Applicant bases these allegations mainly on the Report of the Commission of Experts and the United States State Department Dispatch. The Commission of Experts based its findings on information provided by a Helsinki Watch Report. A witness claimed that some prisoners were beaten in Foča KP Dom (Report of the Commission of Experts, Vol. IV, pp. 128-132); similar accounts are contained in the United States State Department Dispatch. One witness stated that “Those running the center instilled fear in the Muslim prisoners by selecting certain prisoners for beatings. From his window in Room 13, the witness saw prisoners regularly being taken to a building where beatings were conducted. This building was close enough for him to hear the screams of those who were being beaten.” (Dispatch of the United States Department of State, 19 April 1993, No. 16, p. 262.) 310. The ICTY Trial Chamber in its Kunarac Judgment of 22 February 2001, described the statements of several witnesses as to the poor and brutal living conditions in Foča KP Dom. These seem to confirm that the Muslim men and women from Foča, Gacko and Kalinovik municipalities were arrested, rounded up, separated from each other, and imprisoned or detained at several detention centres like the Foča KP Dom where some of them were killed, raped or severely beaten (Kunarac et al, IT-96-23-T and IT-96-23/1-T, Trial Chamber Judgment, 22 February 2001). Prijedor (a) Municipality 311. Most of the allegations of abuses said by the Applicant to have occurred in Prijedor have been examined in the section of the present Judgment concerning the camps situated in Prijedor. However, the Report of the Commission of Experts refers to a family of nine found dead in Stara Rijeka in Prijedor, who had obviously been tortured (Vol. V, Ann. X, p. 41). The Trial Chamber of the ICTY, in its Judgment in the Tadić case made the following factual finding as to an attack on two villages in the Kozarac area, Jaskići and Sivci: “On 14 June 1992 both villages were attacked. In the morning the approaching sound of shots was heard by the inhabitants of Sivci and soon after Serb tanks and Serb soldiers entered the village . . . There they were made to run along that road, hands clasped behind their heads, to a collecting point in the yard of one of the houses. On the way there they were repeatedly made to stop, lie down on the road and be beaten and kicked by soldiers as they lay there, before being made to get up again and run some distance further, where the whole performance would be repeated . . . In all some 350 men, mainly Muslims but including a few Croats, were treated in this way in Sivci. On arrival at the collecting point, beaten and in many cases covered with blood, some men were called out and questioned about others, and were threatened and beaten again. Soon buses arrived, five in all, and the men were made to run to them, hands again behind the head, and to crowd on to them. They were then taken to the Keraterm camp. The experience of the inhabitants of the smaller village of Jaskići, which contained only 11 houses, on 14 June 1992 was somewhat similar but accompanied by the killing of villagers. Like Sivci, Jaskići had received refugees after the attack on Kozarac but by 14 June 1992 many of those refugees had left for other villages. In the afternoon of 14 June 1992 gunfire was heard and Serb soldiers arrived in Jaskići and ordered men out of their homes and onto the village street, their hands clasped behind their heads; there they were made to lie down and were severely beaten.” (IT-94-1-T, Judgment, 7 May 1997, paras. 346-348.) (b) Camps (i) Omarska camp 312. As noted above in connection with the killings (paragraph 262), the Applicant has been able to present abundant and persuasive evidence of physical abuses causing serious bodily harm in Omarska camp. The Report of the Commission of Experts contains witness accounts regarding the “white house” used for physical abuses, rapes, torture and, occasionally, killings, and the “red house” used for killings (Vol. IV, Ann. VIII, pp. 207-222). Those accounts of the sadistic methods of killing are corroborated by United States submissions to the Secretary-General. The most persuasive and reliable source of evidence may be taken to be the factual part of the Opinion and Judgment of the ICTY in the Tadić case (IT-94-1-T, Trial Chamber Judgment, 7 May 1997). Relying on the statements of 30 witnesses, the Tadić Trial Judgment made findings as to interrogations, beatings, rapes, as well as the torture and humiliation of Muslim prisoners in Omarska camp (in particular: ibid., paras. 155-158, 163-167). The Trial Chamber was satisfied beyond reasonable doubt of the fact that several victims were mistreated and beaten by Tadić and suffered permanent harm, and that he had compelled one prisoner to sexually mutilate another (ibid., paras. 194-206). Findings of mistreatment, torture, rape and sexual violence at Omarska camp were also made by the ICTY in other cases; in particular, the Trial Judgment of 2 November 2001 in the Kvočka et al. case (IT-98-30/1-T, Trial Chamber Judgment, paras. 21-50, and 98-108) ⎯ upheld on appeal, the Trial Judgment of 1 September 2004 in the Brđanin case (IT-99-36-T, Trial Chamber Judgment, paras. 515-517) and the Trial Judgment of 31 July 2003 in the Stakić case (IT-97-24-T, Trial Chamber Judgment, paras. 229-336). (ii) Keraterm camp 313. The Applicant also pointed to evidence of beatings and rapes at Keraterm camp. Several witness accounts are reported in the Report of the Commission of Experts (Vol. IV, Ann. VIII, pp. 225, 231, 233, 238) and corroborated by witness accounts reported by the Permanent Mission of Austria to the United Nations and Helsinki Watch. The attention of the Court has been drawn to several judgments of the ICTY which also document the severe physical abuses, rapes and sexual violence that occurred at this camp. The Trial Judgment of 1 September 2004 in the Brđanin case found that: “At Keraterm camp, detainees were beaten on arrival . . . Beatings were carried out with wooden clubs, baseball bats, electric cables and police batons . . . In some cases the beatings were so severe as to result in serious injury and death. Beatings and humiliation were often administered in front of other detainees. Female detainees were raped in Keraterm camp.” (IT-99-36-T, Trial Chamber Judgment, paras. 851-852.) The Trial Chamber in its Judgment of 31 July 2003 in the Stakić case found that “the detainees at the Keraterm camp were subjected to terrible abuse. The evidence demonstrates that many of the detainees at the Keraterm camp were beaten on a daily basis. Up until the middle of July, most of the beatings happened at night. After the detainees from Brdo arrived, around 20 July 1992, there were ‘no rules’, with beatings committed both day and night. Guards and others who entered the camp, including some in military uniforms carried out the beatings. There were no beatings in the rooms since the guards did not enter the rooms ⎯ people were generally called out day and night for beatings.” (IT-97-24-T, Trial Chamber Judgment, para. 237.) The Chamber also found that there was convincing evidence of further beatings and rape perpetrated in Keraterm camp (ibid., paras. 238-241). In the Trial Judgment in the Kvočka et al. case, the Chamber held that, in addition to the “dreadful” general conditions of life, detainees at Keraterm camp were “mercilessly beaten” and “women were raped” (IT-98-30/1-T, Trial Chamber Judgment, 2 November 2001, para. 114). (iii) Trnopolje camp 314. The Court has furthermore been presented with evidence that beatings and rapes occurred at Trnopolje camp. The rape of 30-40 prisoners on 6 June 1992 is reported by both the Report of the Commission of Experts (Vol. IV, Ann. VIII, pp. 251-253) and a publication of the United States State Department. In the Tadić case the Trial Chamber of the ICTY concluded that at Trnopolje camp beatings occurred and that “[b]ecause this camp housed the largest number of women and girls, there were more rapes at this camp than at any other” (IT-94-1-T, Judgment, 7 May 1997, paras. 172-177, (para. 175)). These findings concerning beatings and rapes are corroborated by other Judgments of the ICTY, such as the Trial Judgment in the Stakić case where it found that, “although the scale of the abuse at the Trnopolje camp was less than that in the Omarska camp, mistreatment was commonplace. The Serb soldiers used baseball bats, iron bars, rifle butts and their hands and feet or whatever they had at their disposal to beat the detainees. Individuals were who taken out for questioning would often return bruised or injured” (IT-97-24-T, Trial Chamber Judgment, 31 July 2003, para. 242); and that, having heard the witness statement of a victim, it was satisfied beyond reasonable doubt “that rapes did occur in the Trnopolje camp” (ibid., para. 244). Similar conclusions were drawn in the Judgment of the Trial Chamber in the Brđanin case (IT-99-36-T, 1 September 2004, paras. 513-514 and 854-857). Banja Luka (i) Manjača camp 315. With regard to the Manjača camp in Banja Luka, the Applicant alleges that beatings, torture and rapes were occurring at this camp. The Applicant relies mainly on the witnesses cited in the Report of the Commission of Experts (Vol. IV, Ann. VIII, pp. 50-54). This evidence is corroborated by the testimony of a former prisoner at the Joint Hearing before the Select Committee on Intelligence in the United States Senate on 9 August 1995, and a witness account reported in the Memorial of the Applicant (United States State Department Dispatch, 2 November 1992, p. 806). The Trial Chamber, in its Decision on Motion for Judgment of Acquittal of 16 June 2004, in the Milošević case reproduced the statement of a witness who testified that, “at the Manjaca camp, they were beaten with clubs, cables, bats, or other similar items by the military police. The men were placed in small, bare stables, which were overcrowded and contained no toilet facilities. While at the camp, the detainees received inadequate food and water. Their heads were shaved, and they were severely beaten during interrogations.” (IT-02-54-T, Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 178.) 316. The Applicant refers to the Report of the Commission of Experts, which contains reports that the Manjača camp held a limited number of women and that during their stay they were “raped repeatedly”. Muslim male prisoners were also forced to rape female prisoners (Report of the Commission of Experts, Vol. IV, Annex VIII, pp. 53-54). The Respondent points out that the Brđanin Trial Judgment found no evidence had been presented that detainees were subjected to “acts of sexual degradation” in Manjača. Brčko (i) Luka camp 317. The Applicant alleges that torture, rape and beatings occurred at Luka camp (Brčko). The Report of the Commission of Experts contains multiple witness accounts, including the evidence of a local guard forced into committing rape (Vol. IV, Ann. VIII, pp. 93-97). The account of the rapes is corroborated by multiple sources (United States State Department Dispatch, 19 April 1993). The Court notes in particular the findings of the ICTY Trial Chamber in the Češić case, with regard to acts perpetrated in the Luka camp. In his plea agreement the accused admitted several grave incidents, such as beatings and compelling two Muslim brothers to perform sexual acts with each other (IT-95-10/1-S, Sentencing Judgment, 11 March 2004, paras. 8-17). These findings are corroborated by witness statements and the guilty plea in the Jelisić case. 318. The Respondent does not deny that the camps in Bosnia and Herzegovina were “in breach of humanitarian law and, in most cases, in breach of the law of war”, but argues that the conditions in all the camps were not of the kind described by the Applicant. It stated that all that had been demonstrated was “the existence of serious crimes, committed in a particularly complex situation, in a civil and fratricidal war”, but not the requisite specific intent (dolus specialis).* 319. Having carefully examined the evidence presented before it, and taken note of that presented to the ICTY, the Court considers that it has been established by fully conclusive evidence that members of the protected group were systematically victims of massive mistreatment, beatings, rape and torture causing serious bodily and mental harm, during the conflict and, in particular, in the detention camps. The requirements of the material element, as defined by Article II (b) of the Convention are thus fulfilled. The Court finds, however, on the basis of the evidence before it, that it has not been conclusively established that those atrocities, although they too may amount to war crimes and crimes against humanity, were committed with the specific intent (dolus specialis) to destroy the protected group, in whole or in part, required for a finding that genocide has been perpetrated. (7) Article II (c): Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part 320. Article II (c) of the Genocide Convention concerns the deliberate infliction on the group of conditions of life calculated to bring about its physical destruction in whole or in part. Under this heading, the Applicant first points to an alleged policy by the Bosnian Serb forces to encircle civilians of the protected group in villages, towns or entire regions and to subsequently shell those areas and cut off all supplies in order to starve the population. Secondly, the Applicant claims that Bosnian Serb forces attempted to deport and expel the protected group from the areas which those forces occupied. Finally, the Applicant alleges that Bosnian Serb forces attempted to eradicate all traces of the culture of the protected group through the destruction of historical, religious and cultural property. 321. The Respondent argues that the events referred to by the Applicant took place in a context of war which affected the entire population, whatever its origin. In its view, “it is obvious that in any armed conflict the conditions of life of the civilian population deteriorate”. The Respondent considers that, taking into account the civil war in Bosnia and Herzegovina which generated inhuman conditions of life for the entire population in the territory of that State, “it is impossible to speak of the deliberate infliction on the Muslim group alone or the non-Serb group alone of conditions of life calculated to bring about its destruction”. 322. The Court will examine in turn the evidence concerning the three sets of claims made by the Applicant: encirclement, shelling and starvation; deportation and expulsion; destruction of historical, religious and cultural property. It will also go on to consider the evidence presented regarding the conditions of life in the detention camps already extensively referred to above (paragraphs 252-256, 262-273, 307-310 and 312-318). Alleged encirclement, shelling and starvation 323. The principal incident referred to by the Applicant in this regard is the siege of Sarajevo by Bosnian Serb forces. Armed conflict broke out in Sarajevo at the beginning of April 1992 following the recognition by the European Community of Bosnia and Herzegovina as an independent State. The Commission of Experts estimated that, between the beginning of April 1992 and 28 February 1994, in addition to those killed or missing in the city (paragraph 247 above), 56,000 persons had been wounded (Report of the Commission of Experts, Vol. II, Ann. VI, p. 8). It was further estimated that, “over the course of the siege, the city [was] hit by an average of approximately 329 shell impacts per day, with a high of 3,777 shell impacts on 22 July 1993” (ibid.). In his report of 28 August 1992, the Special Rapporteur observed that: “The city is shelled on a regular basis . . . Snipers shoot innocent civilians . . . The civilian population lives in a constant state of anxiety, leaving their homes or shelters only when necessary . . . The public systems for distribution of electrical power and water no longer function. Food and other basic necessities are scarce, and depend on the airlift organized by UNHCR and protected by UNPROFOR.” (Report of 28 August 1992, paras. 17-18.) 324. The Court notes that, in resolutions adopted on 16 April and 6 May 1993, the SecurityCouncil declared Sarajevo, together with Tuzla, Žepa, Goražde, Bihać and Srebrenica, to be “safe areas” which should be free from any armed attack or any other hostile act and fully accessible to UNPROFOR and international humanitarian agencies (resolutions 819 of 16 April 1993 and 824 of 6 May 1993). However, these resolutions were not adhered to by the parties to the conflict. In his report of 26 August 1993, the Special Rapporteur noted that “Since May 1993 supplies of electricity, water and gas to Sarajevo have all but stopped . . . a significant proportion of the damage caused to the supply lines has been deliberate, according to United Nations Protection Force engineers who have attempted to repair them. Repair crews have been shot at by both Bosnian Serb and government forces . . .” (Report of 26 August 1993, para. 6). He further found that UNHCR food and fuel convoys had been “obstructed or attacked by Bosnian Serb and Bosnian Croat forces and sometimes also by governmental forces” (Report of 26 August 1993, para. 15). The Commission of Experts also found that the “blockade of humanitarian aid ha[d] been used as an important tool in the siege” (Report of the Commission of Experts, Ann. VI, p. 17). According to the Special Rapporteur, the targeting of the civilian population by shelling and sniping continued and even intensified throughout 1994 and 1995 (Report of 4 November 1994, paras. 27-28; Report of 16 January 1995, para. 13; Report of 5 July 1995, paras. 67-70). The Special Rapporteur noted that “[a]ll sides are guilty of the use of military force against civilian populations and relief operations in Sarajevo. However, one cannot lose sight of the fact that the main responsibility lies with the [Bosnian Serb] forces, since it is they who have adopted the tactic of laying siege to the city.” (Report of 17 November 1992, para. 42.) 325. The Court notes that in the Galić case, the Trial Chamber of the ICTY found that the Serb forces (the SRK) conducted a campaign of sniping and shelling against the civilian population of Sarajevo (Galić, IT-98-29-T, Judgment, 5 December 2003, para. 583). It was “convinced by the evidence in the Trial Record that civilians in ABiH-held areas of Sarajevo were directly or indiscriminately attacked from SRK-controlled territory . . ., and that as a result and as a minimum, hundreds of civilians were killed and thousands others were injured” (ibid., para. 591). These findings were subsequently confirmed by the Appeals Chamber (Galić, IT-98-29-A, Judgment, 30 November 2006, paras. 107-109). The ICTY also found that the shelling which hit the Markale market on 5 February 1994, resulting in 60 persons killed and over 140 injured, came from behind Bosnian Serb lines, and was deliberately aimed at civilians (ibid., paras. 333 and 335 and Galić, IT-98-29-T, Trial Chamber Judgment, 5 December 2003, para. 496). 326. The Respondent argues that the safe areas proclaimed by the Security Council had not been completely disarmed by the Bosnian army. For instance, according to testimony given in the Galić case by the deputy commander of the Bosnian army corps covering the Sarajevo area, the Bosnian army had deployed 45,000 troops within Sarajevo. The Respondent also pointed to further testimony in that case to the effect that certain troops in the Bosnian army were wearing civilian clothes and that the Bosnian army was using civilian buildings for its bases and positioning its tanks and artillery in public places. Moreover, the Respondent observes that, in his book, Fighting for Peace, General Rose was of the view that military equipment was installed in the vicinity of civilians, for instance, in the grounds of the hospital in Sarajevo and that “[t]he Bosnians had evidently chosen this location with the intention of attracting Serb fire, in the hope that the resulting carnage would further tilt international support in their favour” (Michael Rose, Fighting for Peace, London, 1998, p. 254). 327. The Applicant also points to evidence of sieges of other towns in Bosnia and Herzegovina. For instance, with regard to Goražde, the Special Rapporteur found that the enclave was being shelled and had been denied convoys of humanitarian aid for two months. Although food was being air-dropped, it was insufficient (Report of 5 May 1992, para. 42). In a later report, the Special Rapporteur noted that, as of spring 1994, the town had been subject to a military offensive by Bosnian Serb forces, during which civilian objects including the hospital had been targeted and the water supply had been cut off (Report of 10 June 1994, paras. 7-12). Humanitarian convoys were harassed including by the detention of UNPROFOR personnel and the theft of equipment (Report of 19 May 1994, paras. 17 et seq.). Similar patterns occurred in Bihać, Tuzla, Cerska and Maglaj (Bihać: Special Rapporteur’s Report of 28 August 1992, para. 20; Report of the Secretary-General pursuant to resolution 959 (1994), para. 17; Special Rapporteur’s Report of 16 January 1995, para. 12; Tuzla: Report of the Secretary-General pursuant to resolutions 844 (1993), 836 (1993) and 776 (1992), paras. 2-4; Special Rapporteur’s Report of 5 July 1995; Cerska: Special Rapporteur’s Report of 5 May 1993, paras. 8-17; Maglaj: Special Rapporteur’s Report of 17 November 1993, para. 93). 328. The Court finds that virtually all the incidents recounted by the Applicant have been established by the available evidence. It takes account of the assertion that the Bosnian army may have provoked attacks on civilian areas by Bosnian Serb forces, but does not consider that this, even if true, can provide any justification for attacks on civilian areas. On the basis of a careful examination of the evidence presented by the Parties, the Court concludes that civilian members of the protected group were deliberately targeted by Serb forces in Sarajevo and other cities. However, reserving the question whether such acts are in principle capable of falling within the scope of Article II, paragraph (c), of the Convention, the Court does not find sufficient evidence that the alleged acts were committed with the specific intent to destroy the protected group in whole or in part. For instance, in the Galić case, the ICTY found that “the attacks on civilians were numerous, but were not consistently so intense as to suggest an attempt by the SRK to wipe out or even deplete the civilian population through attrition . . . the only reasonable conclusion in light of the evidence in the Trial Record is that the primary purpose of the campaign was to instil in the civilian population a state of extreme fear” (Galić, IT-98-29-T, Trial Chamber Judgment, 5 December 2003, para. 593). These findings were not overruled by the judgment of the Appeals Chamber of 30 November 2006 (Galić, IT-98-29-A, Judgment: see e.g., paras. 107-109, 335 and 386-390). The Special Rapporteur of the United Nations Commission on Human Rights was of the view that “[t]he siege, including the shelling of population centres and the cutting off of supplies of food and other essential goods, is another tactic used to force Muslims and ethnic Croatians to flee” (Report of 28 August 1992, para. 17). The Court thus finds that it has not been conclusively established that the acts were committed with the specific intent (dolus specialis) to destroy the protected group in whole or in part. Deportation and expulsion 329. The Applicant claims that deportations and expulsions occurred systematically all over Bosnia and Herzegovina. With regard to Banja Luka, the Special Rapporteur noted that since late November 1993, there had been a “sharp rise in repossessions of apartments, whereby Muslim and Croat tenants [were] summarily evicted” and that “a form of housing agency ha[d] been established . . . which chooses accommodation for incoming Serb displaced persons, evicts Muslim or Croat residents and reputedly receives payment for its services in the form of possessions left behind by those who have been evicted” (Report of 21 February 1994, para. 8). In a report dated 21 April 1995 dedicated to the situation in Banja Luka, the Special Rapporteur observed that since the beginning of the war, there had been a 90 per cent reduction in the local Muslim population (Report of 21 April 1995, para. 4). He noted that a forced labour obligation imposed by the de facto authorities in Banja Luka, as well as “the virulence of the ongoing campaign of violence” had resulted in “practically all non-Serbs fervently wishing to leave the Banja Luka area” (Report of 21 April 1995, para. 24). Those leaving Banja Luka were required to pay fees and to relinquish in writing their claim to their homes, without reimbursement (Report of 21 April 1995, para. 26). The displacements were “often very well organized, involving the bussing of people to the Croatian border, and involve[d] large numbers of people” (Report of 4 November 1994, para. 23). According to the Special Rapporteur, “[o]n one day alone in mid-June 1994, some 460 Muslims and Croats were displaced” (ibid.). 330. As regards Bijeljina, the Special Rapporteur observed that, between mid-June and 17 September 1994, some 4,700 non-Serbs were displaced from the Bijeljina and Janja regions. He noted that many of the displaced, “whether forced or choosing to depart, were subject to harassment and theft by the Bosnian Serb forces orchestrating the displacement” (Report of 4 November 1994, para. 21). These reports were confirmed by those of non-governmental organizations based on witness statements taken on the ground (Amnesty International, “Bosnia and Herzegovina: Living for the Day ⎯ Forced expulsions from Bijeljina and Janja”, December 1994, p. 2). 331. As for Zvornik, the Commission of Experts, relying on a study carried out by the Ludwig Boltzmann Institute of Human Rights based on an evaluation of 500 interviews of individuals who had fled the area, found that a systematic campaign of forced deportation had occurred (Report of the Commission of Experts, Vol. I, Ann. IV, pp. 55 et seq). The study observed that Bosnian Muslims obtained an official stamp on their identity card indicating a change of domicile in exchange for transferring their property to an “agency for the exchange of houses” which was subsequently a prerequisite for being able to leave the town (Ludwig Boltzmann Institute of Human Rights, “‘Ethnic Cleansing Operations’ in the northeast Bosnian city of Zvornik from April through June 1992”, pp. 28-29). According to the study, forced deportations of Bosnian Muslims began in May/June 1992 by bus to Mali Zvornik and from there to the Bosnian town of Tuzla or to Subotica on the Serbian-Hungarian border (ibid., pp. 28 and 35-36). The Special Rapporteur’s report of 10 February 1993 supports this account, stating that deportees from Zvornik had been “ordered, some at gunpoint, to board buses and trucks and later trains”, provided with Yugoslav passports and subsequently taken to the Hungarian border to be admitted as refugees (Report of 10 February 1993, para. 99). 332. According to the Trial Chamber of the ICTY in its review of the indictment in the cases against Karadžić and Mladić, “[t]housands of civilians were unlawfully expelled or deported to other places inside and outside the Republic of Bosnia and Herzegovina” and “[t]he result of these expulsions was the partial or total elimination of Muslims and Bosnian Croats in some of [the] Bosnian Serb-held regions of Bosnia and Herzegovina”. The Chamber further stated that “[i]n the municipalities of Prijedor, Foča, Vlasenica, Brčko and Bosanski Šamac, to name but a few, the once non-Serbian majority was systematically exterminated or expelled by force or intimidation” (Karadžić and Mladić, IT-95-5-R61 and IT-95-18-R61, Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 16). 333. The Respondent argues that displacements of populations may be necessary according to the obligations set down in Articles 17 and 49, paragraph 2, of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, for instance if the security of the population or imperative military reasons so demand. It adds that the displacement of populations has always been a way of settling certain conflicts between opposing parties and points to a number of examples of forced population displacements in history following an armed conflict. The Respondent also argues that the mere expulsion of a group cannot be characterized as genocide, but that, according to the ICTY Judgment in the Stakić case, “[a] clear distinction must be drawn between physical destruction and mere dissolution of a group” and “[t]he expulsion of a group or part of a group does not in itself suffice for genocide” (Stakić, IT-97-24-T, Trial Chamber Judgment, 31 July 2003, para. 519). 334. The Court considers that there is persuasive and conclusive evidence that deportations and expulsions of members of the protected group occurred in Bosnia and Herzegovina. With regard to the Respondent’s argument that in time of war such deportations or expulsions may be justified under the Geneva Convention, or may be a normal way of settling a conflict, the Court would observe that no such justification could be accepted in the face of proof of specific intent (dolus specialis). However, even assuming that deportations and expulsions may be categorized as falling within Article II, paragraph (c), of the Genocide Convention, the Court cannot find, on the basis of the evidence presented to it, that it is conclusively established that such deportations and expulsions were accompanied by the intent to destroy the protected group in whole or in part (see paragraph 190 above). Destruction of historical, religious and cultural property 335. The Applicant claims that throughout the conflict in Bosnia and Herzegovina, Serb forces engaged in the deliberate destruction of historical, religious and cultural property of the protected group in “an attempt to wipe out the traces of their very existence”. 336. In the Tadić case, the ICTY found that “[n]on-Serb cultural and religious symbols throughout the region were targeted for destruction” in the Banja Luka area (Tadić, IT-94-1-T, Trial Chamber Judgment, 7 May 1997, para. 149). Further, in reviewing the indictments of Karadžić and Mladić, the Trial Chamber stated that: “Throughout the territory of Bosnia and Herzegovina under their control, Bosnian Serb forces . . . destroyed, quasi-systematically, the Muslim and Catholic cultural heritage, in particular, sacred sites. According to estimates provided at the hearing by an expert witness, Dr. Kaiser, a total of 1.123 mosques, 504 Catholic churches and five synagogues were destroyed or damaged, for the most part, in the absence of military activity or after the cessation thereof. This was the case in the destruction of the entire Islamic and Catholic heritage in the Banja Luka area, which had a Serbian majority and the nearest area of combat to which was several dozen kilometres away. All of the mosques and Catholic churches were destroyed. Some mosques were destroyed with explosives and the ruins were then levelled and the rubble thrown in the public dumps in order to eliminate any vestige of Muslim presence. Aside from churches and mosques, other religious and cultural symbols like cemeteries and monasteries were targets of the attacks.” (Karadžić and Mladić, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 15.) In the Brđanin case, the Trial Chamber was “satisfied beyond reasonable doubt that there was wilful damage done to both Muslim and Roman Catholic religious buildings and institutions in the relevant municipalities by Bosnian Serb forces” (Brđanin, IT-99-36-T, Judgment, 1 September 2004, paras. 640 and 658). On the basis of the findings regarding a number of incidents in various regions of Bosnia and Herzegovina, the Trial Chamber concluded that a “campaign of devastation of institutions dedicated to religion took place throughout the conflict” but “intensified in the summer of 1992” and that this concentrated period of significant damage was “indicative that the devastation was targeted, controlled and deliberate” (ibid., paras. 642-657). For instance, the Trial Chamber found that the Bosanska Krupa town mosque was mined by Bosnian Serb forces in April 1992, that two mosques in Bosanski Petrovac were destroyed byBosnian Serb forces in July 1992 and that the mosques in Staro Šipovo, Bešnjevo and Pljeva were destroyed on 7 August 1992 (ibid., paras. 644, 647 and 656). 337. The Commission of Experts also found that religious monuments especially mosques and churches had been destroyed by Bosnian Serb forces (Report of the Commission of Experts, Vol. I, Ann. IV, pp. 5, 9, 21 ff.). In its report on the Prijedor region, the Commission found that at least five mosques and associated buildings in Prijedor town had been destroyed and noted that it was claimed that all 16 mosques in the Kozarac area had been destroyed and that not a single mosque, or other Muslim religious building remained intact in the Prijedor region (Report of the Commission of Experts, Vol. I, Ann. V, p. 106). The report noted that those buildings were “allegedly not desecrated, damaged and destroyed for any military purpose nor as a side-effect of the military operations as such” but rather that the destruction “was due to later separate operations of dynamiting” (ibid.). 338. The Special Rapporteur found that, during the conflict, “many mosques, churches and other religious sites, including cemeteries and monasteries, have been destroyed or profaned” (Report of 17 November 1992, para. 26). He singled out the “systematic destruction and profanation of mosques and Catholic churches in areas currently or previously under [Bosnian Serb] control” (Report of 17 November 1992, para. 26). 339. Bosnia and Herzegovina called as an expert Mr. András Riedlmayer, who had carried out a field survey on the destruction of cultural heritage in 19 municipalities in Bosnia and Herzegovina for the Prosecutor of the ICTY in the Milošević case and had subsequently studied seven further municipalities in two other cases before the ICTY (“Destruction of Cultural Heritage in Bosnia and Herzegovina, 1992-1996: A Post-war Survey of Selected Municipalities”, Milošević, IT-02-54-T, Exhibit Number P486). In his report prepared for the Milošević case, Mr. Riedlmayer documented 392 sites, 60 per cent of which were inspected first hand while for the other 40 per cent, his assessment was based on photographs and information obtained from other sources judged to be reliable and where there was corroborating documentation (Riedlmayer Report, p. 5). 340. The report compiled by Mr. Riedlmayer found that of the 277 mosques surveyed, none were undamaged and 136 were almost or entirely destroyed (Riedlmayer Report, pp. 9-10). The report found that: “The damage to these monuments was clearly the result of attacks directed against them, rather than incidental to the fighting. Evidence of this includes signs of blast damage indicating explosives placed inside the mosques or inside the stairwells of minarets; many mosques [were] burnt out. In a number of towns, including Bijeljina, Janja (Bijeljina municipality), Foča, Banja Luka, Sanski Most, Zvornik and others, the destruction of mosques took place while the area was under the control of Serb forces, at times when there was no military action in the immediate vicinity.” (Ibid., p. 11.) The report also found that, following the destruction of mosques: “the ruins [of the mosques] were razed and the sites levelled with heavy equipment, and all building materials were removed from the site . . . Particularly well-documented instances of this practice include the destruction and razing of 5 mosques in the town of Bijeljina; of 2 mosques in the town of Janja (in Bijeljina municipality); of 12 mosques and 4 turbes in Banja Luka; and of 3 mosques in the city of Brčko.” (Ibid., p. 12.) Finally, the Report noted that the sites of razed mosques had been “turned into rubbish tips, bus stations, parking lots, automobile repair shops, or flea markets” (ibid., p. 14), for example, a block of flats and shops had been erected on the site of the Zamlaz Mosque in Zvornik and a new Serbian Orthodox church was built on the site of the destroyed Divic Mosque (ibid., p. 14). 341. Mr. Riedlmayer’s report together with his testimony before the Court and other corroborative sources detail the destruction of the cultural and religious heritage of the protected group in numerous locations in Bosnia and Herzegovina. For instance, according to the evidence before the Court, 12 of the 14 mosques in Mostar were destroyed or damaged and there are indications from the targeting of the minaret that the destruction or damage was deliberate (Council of Europe, Information Report: The Destruction by War of the Cultural Heritage in Croatia and Bosnia and Herzegovina-Herzegovina, Parliamentary Assembly doc. 6756, 2 February 1993, paras. 129 and 155). In Foča, the town’s 14 historic mosques were allegedly destroyed by Serb forces. In Banja Luka, all 16 mosques were destroyed by Serb forces including the city’s two largest mosques, the Ferhadija Mosque (built in 1578) and the Arnaudija Mosque (built in 1587) (United States Department of State, Bureau of Public Affairs, Dispatch, 26 July 1993, Vol. 4, No. 30, pp. 547-548; “War Crimes in Bosnia-Herzegovina: UN Cease-Fire Won’t Help Banja Luka”, Human Rights Watch/Helsinki Watch, June 1994, Vol. 6, No. 8, pp. 15-16; The Humanitarian Law Centre, Spotlight Report, No. 14, August 1994, pp. 143-144). 342. The Court notes that archives and libraries were also subjected to attacks during the war in Bosnia and Herzegovina. On 17 May 1992, the Institute for Oriental Studies in Sarajevo was bombarded with incendiary munitions and burnt, resulting in the loss of 200,000 documents including a collection of over 5,000 Islamic manuscripts (Riedlmayer Report, p. 18; Council of Europe, Parliamentary Assembly; Second Information Report on War Damage to the Cultural Heritage in Croatia and Bosnia-Herzegovina, doc. 6869, 17 June 1993, p. 11, Ann. 38). On 25 August 1992, Bosnia’s National Library was bombarded and an estimated 1.5 million volumes were destroyed (Riedlmayer Report, p. 19). The Court observes that, although the Respondent considers that there is no certainty as to who shelled these institutions, there is evidence that both the Institute for Oriental Studies in Sarajevo and the National Library were bombarded from Serb positions. 343. The Court notes that, in cross-examination of Mr. Riedlmayer, counsel for the Respondent pointed out that the municipalities included in Mr. Riedlmayer’s report only amounted to 25 per cent of the territory of Bosnia and Herzegovina. Counsel for the Respondent also called into question the methodology used by Mr. Riedlmayer in compiling his report. However, having closely examined Mr. Riedlmayer’s report and having listened to his testimony, the Court considers that Mr. Riedlmayer’s findings do constitute persuasive evidence as to the destruction of historical, cultural and religious heritage in Bosnia and Herzegovina albeit in a limited geographical area. 344. In light of the foregoing, the Court considers that there is conclusive evidence of the deliberate destruction of the historical, cultural and religious heritage of the protected group during the period in question. The Court takes note of the submission of the Applicant that the destruction of such heritage was “an essential part of the policy of ethnic purification” and was “an attempt to wipe out the traces of [the] very existence” of the Bosnian Muslims. However, in the Court’s view, the destruction of historical, cultural and religious heritage cannot be considered to constitute the deliberate infliction of conditions of life calculated to bring about the physical destruction of the group. Although such destruction may be highly significant inasmuch as it is directed to the elimination of all traces of the cultural or religious presence of a group, and contrary to other legal norms, it does not fall within the categories of acts of genocide set out in Article II of the Convention. In this regard, the Court observes that, during its consideration of the draft text of the Convention, the Sixth Committee of the General Assembly decided not to include cultural genocide in the list of punishable acts. Moreover, the ILC subsequently confirmed this approach, stating that: “As clearly shown by the preparatory work for the Convention . . ., the destruction in question is the material destruction of a group either by physical or by biological means, not the destruction of the national, linguistic, religious, cultural or other identity of a particular group.” (Report of the International Law Commission on the work of its Forty-eighth Session, Yearbook of the International Law Commission 1996, Vol. II, Part Two, pp. 45-46, para. 12.) Furthermore, the ICTY took a similar view in the Krstić case, finding that even in customary law, “despite recent developments”, the definition of acts of genocide is limited to those seeking the physical or biological destruction of a group (Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 580). The Court concludes that the destruction of historical, religious and cultural heritage cannot be considered to be a genocidal act within the meaning of Article II of the Genocide Convention. At the same time, it also endorses the observation made in the Krstić case that “where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group” (ibid.). Camps 345. The Court notes that the Applicant has presented substantial evidence as to the conditions of life in the detention camps and much of this evidence has already been discussed in the sections regarding Articles II (a) and (b). The Court will briefly examine the evidence presented by the Applicant which relates specifically to the conditions of life in the principal camps. (a) Drina River Valley (i) Sušica camp 346. In the Sentencing Judgment in the case of Dragan Nikolić, the commander of Sušica camp, the ICTY found that he subjected detainees to inhumane living conditions by depriving them of adequate food, water, medical care, sleeping and toilet facilities (Nikolić, IT-94-2-S, Sentencing Judgment, 18 December 2003, para. 69). (ii) Foča Kazneno-Popravní Dom camp 347. In the Krnojelac case, the ICTY Trial Chamber made the following findings regarding the conditions at the camp: “the non-Serb detainees were forced to endure brutal and inadequate living conditions while being detained at the KP Dom, as a result of which numerous individuals have suffered lasting physical and psychological problems. Non-Serbs were locked in their rooms or in solitary confinement at all times except for meals and work duty, and kept in overcrowded rooms even though the prison had not reached its capacity. Because of the overcrowding, not everyone had a bed or even a mattress, and there were insufficient blankets. Hygienic conditions were poor. Access to baths or showers, with no hot water, was irregular at best. There were insufficient hygienic products and toiletries. The rooms in which the non-Serbs were held did not have sufficient heating during the harsh winter of 1992. Heaters were deliberately not placed in the rooms, windowpanes were left broken and clothes made from blankets to combat the cold were confiscated. Non-Serb detainees were fed starvation rations leading to severe weight loss and other health problems. They were not allowed to receive visits after April 1992 and therefore could not supplement their meagre food rations and hygienic supplies”. (Krnojelac, IT-97-25-T, Judgment, 15 March 2002, para. 440.) (b) Prijedor (i) Omarska camp 348. In the Trial Judgment in the Kvočka et al. case, the ICTY Trial Chamber provided the following description of the poor conditions in the Omarska camp based on the accounts of detainees: “Detainees were kept in inhuman conditions and an atmosphere of extreme mental and physical violence pervaded the camp. Intimidation, extortion, beatings, and torture were customary practices. The arrival of new detainees, interrogations, mealtimes, and use of the toilet facilities provided recurrent opportunities for abuse. Outsiders entered the camp and were permitted to attack the detainees at random and at will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Trial Chamber finds that the detainees received poor quality food that was often rotten or inedible, caused by the high temperatures and sporadic electricity during the summer of 1992. The food was sorely inadequate in quantity. Former detainees testified of the acute hunger they suffered in the camp: most lost 25 to 35 kilograms in body weight during their time at Omarska; some lost considerably more.” (Kvočka et al., IT-98-30/1-T, Trial Chamber Judgment, 2 November 2001, paras. 45 and 55.) (ii) Keraterm camp 349. The Stakić Trial Judgment contained the following description of conditions in the Keraterm camp based on multiple witness accounts: “The detainees slept on wooden pallets used for the transport of goods or on bare concrete in a big storage room. The conditions were cramped and people often had to sleep on top of each other. In June 1992, Room 1, which according to witness statements was slightly larger than Courtroom 2 of this Tribunal (98.6 m2), held 320 people and the number continued to grow. The detainees were given one meal a day, made up of two small slices of bread and some sort of stew. The rations were insufficient for the detainees. Although families tried to deliver food and clothing every day they rarely succeeded. The detainees could see their families walking to the camp and leaving empty-handed, so in all likelihood someone at the gates of the camp took the food and prevented it from being distributed to the detainees.” (Stakić, IT-97-24-T, Trial Chamber Judgment, 31 July 2003, para. 163.) (iii) Trnopolje camp 350. With respect to the Trnopolje camp, the Stakić Trial Judgment described the conditions as follows, noting that they were slightly better than at Omarska and Keraterm: “The detainees were provided with food at least once a day and, for some time, the families of detainees were allowed to bring food. However the quantity of food available was insufficient and people often went hungry. Moreover, the water supply was insufficient and the toilet facilities inadequate. The majority of the detainees slept in the open air. Some devised makeshift . . . shelters of blankets and plastic bags. While clearly inadequate, the conditions in the Trnopolje camp were not as appalling as those that prevailed in Omarska and Keraterm.” (Ibid., para. 190.) (c) Banja Luka Manjača camp 351. According to ICTY Trial Chamber in the Plavšić Sentencing Judgment: “the sanitary conditions in Manjača were ‘disastrous . . . inhuman and really brutal’: the concept of sanitation did not exist. The temperature inside was low, the inmates slept on the concrete floor and they relieved themselves in the compound or in a bucket placed by the door at night. There was not enough water, and any water that became available was contaminated. In the first three months of Adil Draganović’s detention, Manjača was a ‘camp of hunger’ and when there was food available, it was of a very poor quality. The inmates were given two small meals per day, which usually consisted of half a cup of warm tea, which was more like warm water, and a small piece of thin, ‘transparent’ bread. Between two and a half thousand men there were only 90 loaves of bread, with each loaf divided into 20 or 40 pieces. Most inmates lost between 20 and 30 kilograms of body weight while they were detained at Manjača. The witness believes that had the ICRC and UNHCR not arrived, the inmates would have died of starvation.” (Plavšić, IT-00-39-S and 40/1-S, Sentencing Judgment, 27 February 2003, para. 48.) (d) Bosanski Šamac 352. In its Judgment in the Simić case, the Trial Chamber made the following findings: “the detainees who were imprisoned in the detention centres in Bosanski Šamac were confined under inhumane conditions. The prisoners were subjected to humiliation and degradation. The forced singing of ‘Chetnik’ songs and the verbal abuse of being called ‘ustasha’ or ‘balija’ were forms of such abuse and humiliation of the detainees. They did not have sufficient space, food or water. They suffered from unhygienic conditions, and they did not have appropriate access to medical care. These appalling detention conditions, the cruel and inhumane treatment through beatings and the acts of torture caused severe physical suffering, thus attacking the very fundamentals of human dignity . . . This was done because of the non-Serb ethnicity of the detainees.” (Simić, IT-95-9-T, Judgment, 17 October 2003, para. 773.) 353. The Respondent does not deny that the camps in Bosnia and Herzegovina were in breach of humanitarian law and, in most cases, in breach of the law of war. However, it notes that, although a number of detention camps run by the Serbs in Bosnia and Herzegovina were the subject of investigation and trials at the ICTY, no conviction for genocide was handed down on account of any criminal acts committed in those camps. With specific reference to the Manjača camp, the Respondent points out that the Special Envoy of the United Nations Secretary-General visited the camp in 1992 and found that it was being run correctly and that a Muslim humanitarian organization also visited the camp and found that “material conditions were poor, especially concerning hygiene [b]ut there were no signs of maltreatment or execution of prisoners”. 354. On the basis of the elements presented to it, the Court considers that there is convincing and persuasive evidence that terrible conditions were inflicted upon detainees of the camps. However, the evidence presented has not enabled the Court to find that those acts were accompanied by specific intent (dolus specialis) to destroy the protected group, in whole or in part. In this regard, the Court observes that, in none of the ICTY cases concerning camps cited above, has the Tribunal found that the accused acted with such specific intent (dolus specialis). (8) Article II (d): Imposing measures to prevent births within the protected group 355. The Applicant invoked several arguments to show that measures were imposed to prevent births, contrary to the provision of Article II, paragraph (d) of the Genocide Convention. First, the Applicant claimed that the “forced separation of male and female Muslims in Bosnia and Herzegovina, as systematically practised when various municipalities were occupied by the Serb forces . . . in all probability entailed a decline in the birth rate of the group, given the lack of physical contact over many months”. The Court notes that no evidence was provided in support of this statement. 356. Secondly, the Applicant submitted that rape and sexual violence against women led to physical trauma which interfered with victims’ reproductive functions and in some cases resulted in infertility. However, the only evidence adduced by the Applicant was the indictment in the Gagović case before the ICTY in which the Prosecutor stated that one witness could no longer give birth to children as a result of the sexual abuse she suffered (Gagović et al., IT-96-23-I, Initial Indictment, 26 June 1996, para. 7.10). In the Court’s view, an indictment by the Prosecutor does not constitute persuasive evidence (see paragraph 217 above). Moreover, it notes that the Gagović case did not proceed to trial due to the death of the accused. 357. Thirdly, the Applicant referred to sexual violence against men which prevented them from procreating subsequently. In support of this assertion, the Applicant noted that, in the Tadić case, the Trial Chamber found that, in Omarska camp, the prison guards forced one Bosnian Muslim man to bite off the testicles of another Bosnian Muslim man (Tadić, IT-94-1-T, Judgment, 7 May 1997, para. 198). The Applicant also cited a report in the newspaper, Le Monde, on a study by the World Health Organization and the European Union on sexual assaults on men during the conflict in Bosnia and Herzegovina, which alleged that sexual violence against men was practically always accompanied by threats to the effect that the victim would no longer produce Muslim children. The article in Le Monde also referred to a statement by the President of a non-governmental organization called the Medical Centre for Human Rights to the effect that approximately 5,000 non-Serb men were the victims of sexual violence. However, the Court notes that the article in Le Monde is only a secondary source. Moreover, the results of the World Health Organization and European Union study were only preliminary, and there is no indication as to how the Medical Centre for Human Rights arrived at the figure of 5,000 male victims of sexual violence. 358. Fourthly, the Applicant argued that rape and sexual violence against men and women led to psychological trauma which prevented victims from forming relationships and founding a family. In this regard, the Applicant noted that in the Akayesu case, the ICTR considered that “rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate” (Akayesu, ICTR-96-4-T, Trial Chamber Judgment, 2 September 1998, para. 508). However, the Court notes that the Applicant presented no evidence that this was the case for women in Bosnia and Herzegovina. 359. Fifthly, the Applicant considered that Bosnian Muslim women who suffered sexual violence might be rejected by their husbands or not be able to find a husband. Again, the Court notes that no evidence was presented in support of this statement. 360. The Respondent considers that the Applicant “alleges no fact, puts forward no serious argument, and submits no evidence” for its allegations that rapes were committed in order to prevent births within a group and notes that the Applicant’s contention that there was a decline in births within the protected group is not supported by any evidence concerning the birth rate in Bosnia and Herzegovina either before or after the war. 361. Having carefully examined the arguments of the Parties, the Court finds that the evidence placed before it by the Applicant does not enable it to conclude that Bosnian Serb forces committed acts which could be qualified as imposing measures to prevent births in the protected group within the meaning of Article II (d) of the Convention. (9) Article II (e): Forcibly transferring children of the protected group to another group 362. The Applicant claims that rape was used “as a way of affecting the demographic balance by impregnating Muslim women with the sperm of Serb males” or, in other words, as “procreative rape”. The Applicant argues that children born as a result of these “forced pregnancies” would not be considered to be part of the protected group and considers that the intent of the perpetrators was to transfer the unborn children to the group of Bosnian Serbs. 363. As evidence for this claim, the Applicant referred to a number of sources including the following. In the indictment in the Gagović et al. case, the Prosecutor alleged that one of the witnesses was raped by two Bosnian Serb soldiers and that “[b]oth perpetrators told her that she would now give birth to Serb babies” (Gagović et al., IT-96-23-I, Initial Indictment, 26 June 1996, para. 9.3). However, as in paragraph 356 above, the Court notes that an indictment cannot constitute persuasive evidence for the purposes of the case now before it and that the Gagović case did not proceed to trial. The Applicant further referred to the Report of the Commission of Experts which stated that one woman had been detained and raped daily by three or four soldiers and that “[s]he was told that she would give birth to a chetnik boy” (Report of the Commission of Experts, Vol. I, p. 59, para. 248). 364. The Applicant also cited the Review of the Indictment in the Karadžić and Mladić cases in which the Trial Chamber stated that “[s]ome camps were specially devoted to rape, with the aim of forcing the birth of Serbian offspring, the women often being interned until it was too late to undergo an abortion” and that “[i]t would seem that the aim of many rapes was enforced impregnation” (Karadžić and Mladić, IT-95-5-R61 and IT-95-18-R61, Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 64). However, the Court notes that this finding of the Trial Chamber was based only on the testimony of one amicus curiae and on the above-mentioned incident reported by the Commission of Experts (ibid., para. 64, footnote 154). 365. Finally, the Applicant noted that in the Kunarac case, the ICTY Trial Chamber found that, after raping one of the witnesses, the accused had told her that “she would now carry a Serb baby and would not know who the father would be” (Kunarac et al cases, Nos. IT-96-23-T and IT-96-23/1-T, Judgment, 22 February 2001, para. 583). 366. The Respondent points out that Muslim women who had been raped gave birth to their babies in Muslim territory and consequently the babies would have been brought up not by Serbs but, on the contrary, by Muslims. Therefore, in its view, it cannot be claimed that the children were transferred from one group to the other. 367. The Court, on the basis of the foregoing elements, finds that the evidence placed before it by the Applicant does not establish that there was any form of policy of forced pregnancy, nor that there was any aim to transfer children of the protected group to another group within the meaning of Article II (e) of the Convention. (10) Alleged genocide outside Bosnia and Herzegovina 368. In the submissions in its Reply, the Applicant has claimed that the Respondent has violated its obligations under the Genocide Convention “by destroying in part, and attempting to destroy in whole, national, ethnical or religious groups within the, but not limited to the, territory of Bosnia and Herzegovina, including in particular the Muslim population . . .” (emphasis added). The Applicant devoted a section in its Reply to the contention that acts of genocide, for which the Respondent was allegedly responsible, also took place on the territory of the FRY; these acts were similar to those perpetrated on Bosnian territory, and the constituent elements of “ethnic cleansing as a policy” were also found in the territory of the FRY. This question of genocide committed within the FRY was not actively pursued by the Applicant in the course of the oral argument before the Court; however, the submission quoted above was maintained in the final submissions presented at the hearings, and the Court must therefore address it. It was claimed by the Applicant that the genocidal policy was aimed not only at citizens of Bosnia and Herzegovina, but also at Albanians, Sandžak Muslims, Croats, Hungarians and other minorities; however, the Applicant has not established to the satisfaction of the Court any facts in support of that allegation. The Court has already found (paragraph 196 above) that, for purposes of establishing genocide, the targeted group must be defined positively, and not as a “non-Serb” group. 369. The Applicant has not in its arguments dealt separately with the question of the nature of the specific intent (dolus specialis) alleged to accompany the acts in the FRY complained of. It does not appear to be contending that actions attributable to the Respondent, and committed on the territory of the FRY, were accompanied by a specific intent (dolus specialis), peculiar to or limited to that territory, in the sense that the objective was to eliminate the presence of non-Serbs in the FRY itself. The Court finds in any event that the evidence offered does not in any way support such a contention. What the Applicant has sought to do is to convince the Court of a pattern of acts said to evidence specific intent (dolus specialis) inspiring the actions of Serb forces in Bosnia and Herzegovina, involving the destruction of the Bosnian Muslims in that territory; and that same pattern lay, it is contended, behind the treatment of Bosnian Muslims in the camps established in the FRY, so that that treatment supports the pattern thesis. The Applicant has emphasized that the same treatment was meted out to those Bosnian Muslims as was inflicted on their compatriots in Bosnia and Herzegovina. The Court will thus now turn to the question whether the specific intent (dolus specialis) can be deduced, as contended by the Applicant, from the pattern of actions against the Bosnian Muslims taken as a whole. (11) The question of pattern of acts said to evidence an intent to commit genocide 370. In the light of its review of the factual evidence before it of the atrocities committed in Bosnia and Herzegovina in 1991-1995, the Court has concluded that, save for the events of July 1995 at Srebrenica, the necessary intent required to constitute genocide has not been conclusively shown in relation to each specific incident. The Applicant however relies on the alleged existence of an overall plan to commit genocide, indicated by the pattern of genocidal or potentially acts of genocide committed throughout the territory, against persons identified everywhere and in each case on the basis of their belonging to a specified group. In the case, for example, of the conduct of Serbs in the various camps (described in paragraphs 252-256, 262-273, 307-310 and 312-318 above), it suggests that “[t]he genocidal intent of the Serbs becomes particularly clear in the description of camp practices, due to their striking similarity all over the territory of Bosnia and Herzegovina”. Drawing attention to the similarities between actions attributed to the Serbs in Croatia, and the later events at, for example, Kosovo, the Applicant observed that “it is not surprising that the picture of the takeovers and the following human and cultural destruction looks indeed similar from 1991 through 1999. These acts were perpetrated as the expression of one single project, which basically and effectively included the destruction in whole or in part of the non-Serb group, wherever this ethnically and religiously defined group could be conceived as obstructing the all-Serbs-in-one-State group concept.” 371. The Court notes that this argument of the Applicant moves from the intent of the individual perpetrators of the alleged acts of genocide complained of, to the intent of higher authority, whether within the VRS or the Republika Srpska, or at the level of the Government of the Respondent itself. In the absence of an official statement of aims reflecting such an intent, the Applicant contends that the specific intent (dolus specialis) of those directing the course of events is clear from the consistency of practices, particularly in the camps, showing that the pattern was of acts committed “within an organized institutional framework”. However, something approaching an official statement of an overall plan is, the Applicant contends, to be found in the Decision on Strategic Goals issued on 12 May 1992 by Momčilo Krajišnik as the President of the National Assembly of Republika Srpska, published in the Official Gazette of the Republika Srpska, and the Court will first consider what significance that Decision may have in this context. The English translation of the Strategic Goals presented by the Parties during the hearings, taken from the Report of Expert Witness Donia in the Milošević case before the ICTY, Exhibit No. 537, reads as follows: “DECISION ON THE STRATEGIC GOALS OF THE SERBIAN PEOPLE IN BOSNIA AND HERZEGOVINA The Strategic Goals, i.e., the priorities, of the Serbian people in Bosnia and Herzegovina are: Separation as a state from the other two ethnic communities. A corridor between Semberija and Krajina. The establishment of a corridor in the Drina River valley, i.e., the elimination of the border between Serbian states. The establishment of a border on the Una and Neretva rivers. The division of the city of Sarajevo into a Serbian part and a Muslim part, and the establishment of effective state authorities within each part. An outlet to the sea for the Republika Srpska.” While the Court notes that this document did not emanate from the Government of the Respondent, evidence before the Court of intercepted exchanges between President Milošević of Serbia and President Karadžić of the Republika Srpska is sufficient to show that the objectives defined represented their joint view. 372. The Parties have drawn the Court’s attention to statements in the Assembly by President Karadžić which appear to give conflicting interpretations of the first and major goal of these objectives, the first on the day they were adopted, the second two years later. On that first occasion, the Applicant contended, he said: “It would be much better to solve this situation by political means. It would be best if a truce could be established right away and the borders set up, even if we lose something”. Two years later he said (according to the translation of his speech supplied by the Applicant): “We certainly know that we must give up something ⎯ that is beyond doubt in so far as we want to achieve our first strategic goal: to drive our enemies by the force of war from their homes, that is the Croats and Muslims, so that we will no longer be together [with them] in a State.” The Respondent disputes the accuracy of the translation, claiming that the stated goal was not “to drive our enemies by the force of war from their homes” but “to free the homes from the enemy”. The 1992 objectives do not include the elimination of the Bosnian Muslim population. The 1994 statement even on the basis of the Applicant’s translation, however shocking a statement, does not necessarily involve the intent to destroy in whole or in part the Muslim population in the enclaves. The Applicant’s argument does not come to terms with the fact that an essential motive of much of the Bosnian Serb leadership ⎯ to create a larger Serb State, by a war of conquest if necessary ⎯ did not necessarily require the destruction of the Bosnian Muslims and other communities, but their expulsion. The 1992 objectives, particularly the first one, were capable of being achieved by the displacement of the population and by territory being acquired, actions which the Respondent accepted (in the latter case at least) as being unlawful since they would be at variance with the inviolability of borders and the territorial integrity of a State which had just been recognized internationally. It is significant that in cases in which the Prosecutor has put the Strategic Goals in issue the ICTY has not characterized them as genocidal (see Brđanin, IT-99-36-T, Trial Chamber Judgment, 1 September 2004, para. 303 and Stakić, IT-97-24-T, Trial Chamber Judgment, 31 July 2003, paras. 546-561 (in particular para. 548)). The Court does not see the 1992 Strategic Goals as establishing the specific intent. 373. Turning now to the Applicant’s contention that the very pattern of the atrocities committed over many communities, over a lengthy period, focussed on Bosnian Muslims and also Croats, demonstrates the necessary intent, the Court cannot agree with such a broad proposition. The dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent. 374. Furthermore, and again significantly, the proposition is not consistent with the findings of the ICTY relating to genocide or with the actions of the Prosecutor, including decisions not to charge genocide offences in possibly relevant indictments, and to enter into plea agreements, as in the Plavšić and Sikirica et al. cases (IT-00-40 and IT-95-8), by which the genocide-related charges were withdrawn. Those actions of the Prosecution and the Tribunal can be conveniently enumerated here. Prosecutions for genocide and related crimes before the ICTY can be grouped in the following way: (a) convictions in respect of charges involving genocide relating to Srebrenica in July 1995: Krstić (IT-98-33) (conviction of genocide at trial was reduced to aiding and abetting genocide on appeal) and Blagojević (IT-02-60) (conviction of complicity in genocide “through aiding and abetting” at trial is currently on appeal); (b) plea agreements in which such charges were withdrawn, with the accused pleading guilty to crimes against humanity: Obrenović (IT-02-60/2) and Momir Nikolić (IT-02-60/1); (c) acquittals on genocide-related charges in respect of events occurring elsewhere: Krajišnik, (paragraph 219 above) (on appeal), Jelisić (IT-95-10) (completed), Stakić (IT-97-24) (completed), Brđanin (IT-99-36) (on appeal) and Sikirica (IT-95-8) (completed); (d) cases in which genocide-related charges in respect of events occurring elsewhere were withdrawn: Plavšić (IT-00-39 and 40/1) (plea agreement), Župljanin (IT-99-36) (genocide-related charges withdrawn) and Mejakić (IT-95-4) (genocide-related charges withdrawn); (e) case in which the indictment charged genocide and related crimes in Srebrenica and elsewhere in which the accused died during the proceedings: Milošević (IT-02-54); (f) cases in which indictments charge genocide or related crimes in respect of events occurring elsewhere, in which accused have died before or during proceedings: Kovačević and Drljača (IT-97-24) and Talić (IT-99-36/1); (g) pending cases in which the indictments charge genocide and related crimes in Srebrenica and elsewhere: Karadžić and Mladić (IT-95-5/18); and (h) pending cases in which the indictments charge genocide and related crimes in Srebrenica: Popović, Beara, Drago Nikolić, Borovčanin and Pandurević, Trbić (IT-05-88/1) and Tolimir (IT-05-88/2). 375. In the cases of a number of accused, relating to events in July 1995 in Srebrenica, charges of genocide or its related acts have not been brought: Erdemović (IT-96-22) (completed), Jokić (IT-02-60) (on appeal), Miletić and Gvero (IT-05-88, part of the Popović et al. proceeding referred to in paragraph 374 (h) above), Perišić (IT-04-81) (pending) and Stanišić and Simatović (IT-03-69) (pending). 376. The Court has already concluded above that ⎯ save in the case of Srebrenica ⎯ the Applicant has not established that any of the widespread and serious atrocities, complained of as constituting violations of Article II, paragraphs (a) to (e), of the Genocide Convention, were accompanied by the necessary specific intent (dolus specialis) on the part of the perpetrators. It also finds that the Applicant has not established the existence of that intent on the part of the Respondent, either on the basis of a concerted plan, or on the basis that the events reviewed above reveal a consistent pattern of conduct which could only point to the existence of such intent. Having however concluded (paragraph 297 above), in the specific case of the massacres at Srebrenica in July 1995, that acts of genocide were committed in operations led by members of the VRS, the Court now turns to the question whether those acts are attributable to the Respondent. VII. The question of responsibility for events at Srebrenica under Article III, paragraph (a), of the Genocide Convention (1) The alleged admission 377. The Court first notes that the Applicant contends that the Respondent has in fact recognized that genocide was committed at Srebrenica, and has accepted legal responsibility for it. The Applicant called attention to the following official declaration made by the Council of Ministers of the Respondent on 15 June 2005, following the showing on a Belgrade television channel on 2 June 2005 of a video-recording of the murder by a paramilitary unit of six Bosnian Muslim prisoners near Srebrenica (paragraph 289 above). The statement reads as follows: “Those who committed the killings in Srebrenica, as well as those who ordered and organized that massacre represented neither Serbia nor Montenegro, but an undemocratic regime of terror and death, against whom the majority of citizens of Serbia and Montenegro put up the strongest resistance. Our condemnation of crimes in Srebrenica does not end with the direct perpetrators. We demand the criminal responsibility of all who committed war crimes, organized them or ordered them, and not only in Srebrenica. Criminals must not be heroes. Any protection of the war criminals, for whatever reason, is also a crime.” The Applicant requests the Court to declare that this declaration “be regarded as a form of admission and as having decisive probative force regarding the attributability to the Yugoslav State of the Srebrenica massacre”. 378. It is for the Court to determine whether the Respondent is responsible for any acts of genocide which may be established. For purposes of a finding of this kind the Court may take into account any statements made by either party that appear to bear upon the matters in issue, and have been brought to its attention (cf. Nuclear Tests (Australia v. France), Judgments, I.C.J. Reports 1974, pp. 263 ff., paras. 32 ff.; (New Zealand v. France), ibid., pp. 465 ff., paras. 27 ff.; Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, pp. 573-574, paras. 38-39), and may accord to them such legal effect as may be appropriate. However, in the present case, it appears to the Court that the declaration of 15 June 2005 was of a political nature; it was clearly not intended as an admission, which would have had a legal effect in complete contradiction to the submissions made by the Respondent before this Court, both at the time of the declaration and subsequently. The Court therefore does not find the statement of 15 June 2005 of assistance to it in determining the issues before it in the case. (2) The test of responsibility 379. In view of the foregoing conclusions, the Court now must ascertain whether the international responsibility of the Respondent can have been incurred, on whatever basis, in connection with the massacres committed in the Srebrenica area during the period in question. For the reasons set out above, those massacres constituted the crime of genocide within the meaning of the Convention. For this purpose, the Court may be required to consider the following three issues in turn. First, it needs to be determined whether the acts of genocide could be attributed to the Respondent under the rules of customary international law of State responsibility; this means ascertaining whether the acts were committed by persons or organs whose conduct is attributable, specifically in the case of the events at Srebrenica, to the Respondent. Second, the Court will need to ascertain whether acts of the kind referred to in Article III of the Convention, other than genocide itself, were committed by persons or organs whose conduct is attributable to the Respondent under those same rules of State responsibility: that is to say, the acts referred to in Article III, paragraphs (b) to (e), one of these being complicity in genocide. Finally, it will be for the Court to rule on the issue as to whether the Respondent complied with its twofold obligation deriving from Article I of the Convention to prevent and punish genocide. 380. These three issues must be addressed in the order set out above, because they are so interrelated that the answer on one point may affect the relevance or significance of the others. Thus, if and to the extent that consideration of the first issue were to lead to the conclusion that some acts of genocide are attributable to the Respondent, it would be unnecessary to determine whether it may also have incurred responsibility under Article III, paragraphs (b) to (e), of the Convention for the same acts. Even though it is theoretically possible for the same acts to result in the attribution to a State of acts of genocide (contemplated by Art. III, para. (a)), conspiracy to commit genocide (Art. III, para. (b)), and direct and public incitement to commit genocide (Art. III, para. (c)), there would be little point, where the requirements for attribution are fulfilled under (a), in making a judicial finding that they are also satisfied under (b) and (c), since responsibility under (a) absorbs that under the other two. The idea of holding the same State responsible by attributing to it acts of “genocide” (Art. III, para. (a)), “attempt to commit genocide” (Art. III, para. (d)), and “complicity in genocide” (Art. III, para. (e)), in relation to the same actions, must be rejected as untenable both logically and legally. 381. On the other hand, there is no doubt that a finding by the Court that no acts that constitute genocide, within the meaning of Article II and Article III, paragraph (a), of the Convention, can be attributed to the Respondent will not free the Court from the obligation to determine whether the Respondent’s responsibility may nevertheless have been incurred through the attribution to it of the acts, or some of the acts, referred to in Article III, paragraphs (b) to (e). In particular, it is clear that acts of complicity in genocide can be attributed to a State to which no act of genocide could be attributed under the rules of State responsibility, the content of which will be considered below. 382. Furthermore, the question whether the Respondent has complied with its obligations to prevent and punish genocide arises in different terms, depending on the replies to the two preceding questions. It is only if the Court answers the first two questions in the negative that it will have to consider whether the Respondent fulfilled its obligation of prevention, in relation to the whole accumulation of facts constituting genocide. If a State is held responsible for an act of genocide (because it was committed by a person or organ whose conduct is attributable to the State), or for one of the other acts referred to in Article III of the Convention (for the same reason), then there is no point in asking whether it complied with its obligation of prevention in respect of the same acts, because logic dictates that a State cannot have satisfied an obligation to prevent genocide in which it actively participated. On the other hand, it is self-evident, as the Parties recognize, that if a State is not responsible for any of the acts referred to in Article III, paragraphs (a) to (e), of the Convention, this does not mean that its responsibility cannot be sought for a violation of the obligation to prevent genocide and the other acts referred to in Article III. 383. Finally, it should be made clear that, while, as noted above, a State’s responsibility deriving from any of those acts renders moot the question whether it satisfied its obligation of prevention in respect of the same conduct, it does not necessarily render superfluous the question whether the State complied with its obligation to punish the perpetrators of the acts in question. It is perfectly possible for a State to incur responsibility at once for an act of genocide (or complicity in genocide, incitement to commit genocide, or any of the other acts enumerated in Article III) committed by a person or organ whose conduct is attributable to it, and for the breach by the State of its obligation to punish the perpetrator of the act: these are two distinct internationally wrongful acts attributable to the State, and both can be asserted against it as bases for its international responsibility. 384. Having thus explained the interrelationship among the three issues set out above (paragraph 379), the Court will now proceed to consider the first of them. This is the question whether the massacres committed at Srebrenica during the period in question, which constitute the crime of genocide within the meaning of Articles II and III, paragraph (a), of the Convention, are attributable, in whole or in part, to the Respondent. This question has in fact two aspects, which the Court must consider separately. First, it should be ascertained whether the acts committed at Srebrenica were perpetrated by organs of the Respondent, i.e., by persons or entities whose conduct is necessarily attributable to it, because they are in fact the instruments of its action. Next, if the preceding question is answered in the negative, it should be ascertained whether the acts in question were committed by persons who, while not organs of the Respondent, did nevertheless act on the instructions of, or under the direction or control of, the Respondent. (3) The question of attribution of the Srebrenica genocide to the Respondent on the basis of the conduct of its organs 385. The first of these two questions relates to the well-established rule, one of the cornerstones of the law of State responsibility, that the conduct of any State organ is to be considered an act of the State under international law, and therefore gives rise to the responsibility of the State if it constitutes a breach of an international obligation of the State. This rule, which is one of customary international law, is reflected in Article 4 of the ILC Articles on State Responsibility as follows: “Article 4 Conduct of organs of a State The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. An organ includes any person or entity which has that status in accordance with the internal law of the State.” 386. When applied to the present case, this rule first calls for a determination whether the acts of genocide committed in Srebrenica were perpetrated by “persons or entities” having the status of organs of the Federal Republic of Yugoslavia (as the Respondent was known at the time) under its internal law, as then in force. It must be said that there is nothing which could justify an affirmative response to this question. It has not been shown that the FRY army took part in the massacres, nor that the political leaders of the FRY had a hand in preparing, planning or in any way carrying out the massacres. It is true that there is much evidence of direct or indirect participation by the official army of the FRY, along with the Bosnian Serb armed forces, in military operations in Bosnia and Herzegovina in the years prior to the events at Srebrenica. That participation was repeatedly condemned by the political organs of the United Nations, which demanded that the FRY put an end to it (see, for example, Security Council resolutions 752 (1992), 757 (1992), 762 (1992), 819 (1993), 838 (1993)). It has however not been shown that there was any such participation in relation to the massacres committed at Srebrenica (see also paragraphs 278 to 297 above). Further, neither the Republika Srpska, nor the VRS were de jure organs of the FRY, since none of them had the status of organ of that State under its internal law. 387. The Applicant has however claimed that all officers in the VRS, including General Mladić, remained under FRY military administration, and that their salaries were paid from Belgrade right up to 2002, and accordingly contends that these officers “were de jure organs of [the FRY], intended by their superiors to serve in Bosnia and Herzegovina with the VRS”. On this basis it has been alleged by the Applicant that those officers, in addition to being officers of the VRS, remained officers of the VJ, and were thus de jure organs of the Respondent (paragraph 238 above). The Respondent however asserts that only some of the VRS officers were being “administered” by the 30th Personnel Centre in Belgrade, so that matters like their payment, promotion, pension, etc., were being handled from the FRY (paragraph 238 above); and that it has not been clearly established whether General Mladić was one of them. The Applicant has shown that the promotion of Mladić to the rank of Colonel General on 24 June 1994 was handled in Belgrade, but the Respondent emphasizes that this was merely a verification for administrative purposes of a promotion decided by the authorities of the Republika Srpska. 388. The Court notes first that no evidence has been presented that either General Mladić or any of the other officers whose affairs were handled by the 30th Personnel Centre were, according to the internal law of the Respondent, officers of the army of the Respondent ⎯ a de jure organ of the Respondent. Nor has it been conclusively established that General Mladić was one of those officers; and even on the basis that he might have been, the Court does not consider that he would, for that reason alone, have to be treated as an organ of the FRY for the purposes of the application of the rules of State responsibility. There is no doubt that the FRY was providing substantial support, inter alia, financial support, to the Republika Srpska (cf. paragraph 241 above), and that one of the forms that support took was payment of salaries and other benefits to some officers of the VRS, but this did not automatically make them organs of the FRY. Those officers were appointed to their commands by the President of the Republika Srpska, and were subordinated to the political leadership of the Republika Srpska. In the absence of evidence to the contrary, those officers must be taken to have received their orders from the Republika Srpska or the VRS, not from the FRY. The expression “State organ”, as used in customary international law and in Article 4 of the ILC Articles, applies to one or other of the individual or collective entities which make up the organization of the State and act on its behalf (cf. ILC Commentary to Art. 4, para. (1)). The functions of the VRS officers, including General Mladić, were however to act on behalf of the Bosnian Serb authorities, in particular the Republika Srpska, not on behalf of the FRY; they exercised elements of the public authority of the Republika Srpska. The particular situation of General Mladić, or of any other VRS officer present at Srebrenica who may have been being “administered” from Belgrade, is not therefore such as to lead the Court to modify the conclusion reached in the previous paragraph. 389. The issue also arises as to whether the Respondent might bear responsibility for the acts of the “Scorpions” in the Srebrenica area. In this connection, the Court will consider whether it has been proved that the Scorpions were a de jure organ of the Respondent. It is in dispute between the Parties as to when the “Scorpions” became incorporated into the forces of the Respondent. The Applicant has claimed that incorporation occurred by a decree of 1991 (which has not been produced as an Annex). The Respondent states that “these regulations [were] relevant exclusively for the war in Croatia in 1991” and that there is no evidence that they remained in force in 1992 in Bosnia and Herzegovina. The Court observes that, while the single State of Yugoslavia was disintegrating at that time, it is the status of the “Scorpions” in mid-1995 that is of relevance to the present case. In two of the intercepted documents presented by the Applicant (the authenticity of which was queried ⎯ see paragraph 289 above), there is reference to the “Scorpions” as “MUP of Serbia” and “a unit of Ministry of Interiors of Serbia”. The Respondent identified the senders of these communications, Ljubiša Borovčanin and Savo Cvjetinović, as being “officials of the police forces of Republika Srpska”. The Court observes that neither of these communications was addressed to Belgrade. Judging on the basis of these materials, the Court is unable to find that the “Scorpions” were, in mid-1995, de jure organs of the Respondent. Furthermore, the Court notes that in any event the act of an organ placed by a State at the disposal of another public authority shall not be considered an act of that State if the organ was acting on behalf of the public authority at whose disposal it had been placed. 390. The argument of the Applicant however goes beyond mere contemplation of the status, under the Respondent’s internal law, of the persons who committed the acts of genocide; it argues that Republika Srpska and the VRS, as well as the paramilitary militias known as the “Scorpions”, the “Red Berets”, the “Tigers” and the “White Eagles” must be deemed, notwithstanding their apparent status, to have been “de facto organs” of the FRY, in particular at the time in question, so that all of their acts, and specifically the massacres at Srebrenica, must be considered attributable to the FRY, just as if they had been organs of that State under its internal law; reality must prevail over appearances. The Respondent rejects this contention, and maintains that these were not de facto organs of the FRY. 391. The first issue raised by this argument is whether it is possible in principle to attribute to a State conduct of persons ⎯ or groups of persons ⎯ who, while they do not have the legal status of State organs, in fact act under such strict control by the State that they must be treated as its organs for purposes of the necessary attribution leading to the State’s responsibility for an internationally wrongful act. The Court has in fact already addressed this question, and given an answer to it in principle, in its Judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits, Judgment, I.C.J. Reports 1986, pp. 62-64). In paragraph 109 of that Judgment the Court stated that it had to “determine . . . whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government” (p. 62). Then, examining the facts in the light of the information in its possession, the Court observed that “there is no clear evidence of the United States having actually exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf” (para. 109), and went on to conclude that “the evidence available to the Court . . . is insufficient to demonstrate [the contras’] complete dependence on United States aid”, so that the Court was “unable to determine that the contra force may be equated for legal purposes with the forces of the United States” (pp. 62-63, para. 110). 392. The passages quoted show that, according to the Court’s jurisprudence, persons, groups of persons or entities may, for purposes of international responsibility, be equated with State organs even if that status does not follow from internal law, provided that in fact the persons, groups or entities act in “complete dependence” on the State, of which they are ultimately merely the instrument. In such a case, it is appropriate to look beyond legal status alone, in order to grasp the reality of the relationship between the person taking action, and the State to which he is so closely attached as to appear to be nothing more than its agent: any other solution would allow States to escape their international responsibility by choosing to act through persons or entities whose supposed independence would be purely fictitious. 393. However, so to equate persons or entities with State organs when they do not have that status under internal law must be exceptional, for it requires proof of a particularly great degree of State control over them, a relationship which the Court’s Judgment quoted above expressly described as “complete dependence”. It remains to be determined in the present case whether, at the time in question, the persons or entities that committed the acts of genocide at Srebrenica had such ties with the FRY that they can be deemed to have been completely dependent on it; it is only if this condition is met that they can be equated with organs of the Respondent for the purposes of its international responsibility. 394. The Court can only answer this question in the negative. At the relevant time, July 1995, neither the Republika Srpska nor the VRS could be regarded as mere instruments through which the FRY was acting, and as lacking any real autonomy. While the political, military and logistical relations between the federal authorities in Belgrade and the authorities in Pale, between the Yugoslav army and the VRS, had been strong and close in previous years (see paragraph 238 above), and these ties undoubtedly remained powerful, they were, at least at the relevant time, not such that the Bosnian Serbs’ political and military organizations should be equated with organs of the FRY. It is even true that differences over strategic options emerged at the time between Yugoslav authorities and Bosnian Serb leaders; at the very least, these are evidence that the latter had some qualified, but real, margin of independence. Nor, notwithstanding the very important support given by the Respondent to the Republika Srpska, without which it could not have “conduct[ed] its crucial or most significant military and paramilitary activities” (I.C.J. Reports 1986, p. 63, para. 111), did this signify a total dependence of the Republika Srpska upon the Respondent. 395. The Court now turns to the question whether the “Scorpions” were in fact acting in complete dependence on the Respondent. The Court has not been presented with materials to indicate this. The Court also notes that, in giving his evidence, General Dannatt, when asked under whose control or whose authority the paramilitary groups coming from Serbia were operating, replied, “they would have been under the command of Mladić and part of the chain of the command of the VRS”. The Parties referred the Court to the Stanišić and Simatović case (IT-03-69, pending); notwithstanding that the defendants are not charged with genocide in that case, it could have its relevance for illuminating the status of the “Scorpions” as Serbian MUP or otherwise. However, the Court cannot draw further conclusions as this case remains at the indictment stage. In this respect, the Court recalls that it can only form its opinion on the basis of the information which has been brought to its notice at the time when it gives its decision, and which emerges from the pleadings and documents in the case file, and the arguments of the Parties made during the oral exchanges. The Court therefore finds that the acts of genocide at Srebrenica cannot be attributed to the Respondent as having been committed by its organs or by persons or entities wholly dependent upon it, and thus do not on this basis entail the Respondent’s international responsibility. (4) The question of attribution of the Srebrenica genocide to the Respondent on the basis of direction or control 396. As noted above (paragraph 384), the Court must now determine whether the massacres at Srebrenica were committed by persons who, though not having the status of organs of the Respondent, nevertheless acted on its instructions or under its direction or control, as the Applicant argues in the alternative; the Respondent denies that such was the case. 397. The Court must emphasize, at this stage in its reasoning, that the question just stated is not the same as those dealt with thus far. It is obvious that it is different from the question whether the persons who committed the acts of genocide had the status of organs of the Respondent under its internal law; nor however, and despite some appearance to the contrary, is it the same as the question whether those persons should be equated with State organs de facto, even though not enjoying that status under internal law. The answer to the latter question depends, as previously explained, on whether those persons were in a relationship of such complete dependence on the State that they cannot be considered otherwise than as organs of the State, so that all their actions performed in such capacity would be attributable to the State for purposes of international responsibility. Having answered that question in the negative, the Court now addresses a completely separate issue: whether, in the specific circumstances surrounding the events at Srebrenica the perpetrators of genocide were acting on the Respondent’s instructions, or under its direction or control. An affirmative answer to this question would in no way imply that the perpetrators should be characterized as organs of the FRY, or equated with such organs. It would merely mean that the FRY’s international responsibility would be incurred owing to the conduct of those of its own organs which gave the instructions or exercised the control resulting in the commission of acts in breach of its international obligations. In other words, it is no longer a question of ascertaining whether the persons who directly committed the genocide were acting as organs of the FRY, or could be equated with those organs ⎯ this question having already been answered in the negative. What must be determined is whether FRY organs ⎯ incontestably having that status under the FRY’s internal law ⎯ originated the genocide by issuing instructions to the perpetrators or exercising direction or control, and whether, as a result, the conduct of organs of the Respondent, having been the cause of the commission of acts in breach of its international obligations, constituted a violation of those obligations. 398. On this subject the applicable rule, which is one of customary law of international responsibility, is laid down in Article 8 of the ILC Articles on State Responsibility as follows: “Article 8 Conduct directed or controlled by a State The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.” 399. This provision must be understood in the light of the Court’s jurisprudence on the subject, particularly that of the 1986 Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) referred to above (paragraph 391). In that Judgment the Court, as noted above, after having rejected the argument that the contras were to be equated with organs of the United States because they were “completely dependent” on it, added that the responsibility of the Respondent could still arise if it were proved that it had itself “directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State” (I.C.J. Reports 1986, p. 64, para. 115); this led to the following significant conclusion: “For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.” (Ibid., p. 65.) 400. The test thus formulated differs in two respects from the test ⎯ described above ⎯ to determine whether a person or entity may be equated with a State organ even if not having that status under internal law. First, in this context it is not necessary to show that the persons who performed the acts alleged to have violated international law were in general in a relationship of “complete dependence” on the respondent State; it has to be proved that they acted in accordance with that State’s instructions or under its “effective control”. It must however be shown that this “effective control” was exercised, or that the State’s instructions were given, in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations. 401. The Applicant has, it is true, contended that the crime of genocide has a particular nature, in that it may be composed of a considerable number of specific acts separate, to a greater or lesser extent, in time and space. According to the Applicant, this particular nature would justify, among other consequences, assessing the “effective control” of the State allegedly responsible, not in relation to each of these specific acts, but in relation to the whole body of operations carried out by the direct perpetrators of the genocide. The Court is however of the view that the particular characteristics of genocide do not justify the Court in departing from the criterion elaborated in the Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (see paragraph 399 above). The rules for attributing alleged internationally wrongful conduct to a State do not vary with the nature of the wrongful act in question in the absence of a clearly expressed lex specialis. Genocide will be considered as attributable to a State if and to the extent that the physical acts constitutive of genocide that have been committed by organs or persons other than the State’s own agents were carried out, wholly or in part, on the instructions or directions of the State, or under its effective control. This is the state of customary international law, as reflected in the ILC Articles on State Responsibility. 402. The Court notes however that the Applicant has further questioned the validity of applying, in the present case, the criterion adopted in the Military and Paramilitary Activities Judgment. It has drawn attention to the Judgment of the ICTY Appeals Chamber in the Tadić case (IT-94-1-A, Judgment, 15 July 1999). In that case the Chamber did not follow the jurisprudence of the Court in the Military and Paramilitary Activities case: it held that the appropriate criterion, applicable in its view both to the characterization of the armed conflict in Bosnia and Herzegovina as international, and to imputing the acts committed by Bosnian Serbs to the FRY under the law of State responsibility, was that of the “overall control” exercised over the Bosnian Serbs by the FRY; and further that that criterion was satisfied in the case (on this point, ibid., para. 145). In other words, the Appeals Chamber took the view that acts committed by Bosnian Serbs could give rise to international responsibility of the FRY on the basis of the overall control exercised by the FRY over the Republika Srpska and the VRS, without there being any need to prove that each operation during which acts were committed in breach of international law was carried out on the FRY’s instructions, or under its effective control. 403. The Court has given careful consideration to the Appeals Chamber’s reasoning in support of the foregoing conclusion, but finds itself unable to subscribe to the Chamber’s view. First, the Court observes that the ICTY was not called upon in the Tadić case, nor is it in general called upon, to rule on questions of State responsibility, since its jurisdiction is criminal and extends over persons only. Thus, in that Judgment the Tribunal addressed an issue which was not indispensable for the exercise of its jurisdiction. As stated above, the Court attaches the utmost importance to the factual and legal findings made by the ICTY in ruling on the criminal liability of the accused before it and, in the present case, the Court takes fullest account of the ICTY’s trial and appellate judgments dealing with the events underlying the dispute. The situation is not the same for positions adopted by the ICTY on issues of general international law which do not lie within the specific purview of its jurisdiction and, moreover, the resolution of which is not always necessary for deciding the criminal cases before it. 404. This is the case of the doctrine laid down in the Tadić Judgment. Insofar as the “overall control” test is employed to determine whether or not an armed conflict is international, which was the sole question which the Appeals Chamber was called upon to decide, it may well be that the test is applicable and suitable; the Court does not however think it appropriate to take a position on the point in the present case, as there is no need to resolve it for purposes of the present Judgment. On the other hand, the ICTY presented the “overall control” test as equally applicable under the law of State responsibility for the purpose of determining ⎯ as the Court is required to do in the present case ⎯ when a State is responsible for acts committed by paramilitary units, armed forces which are not among its official organs. In this context, the argument in favour of that test is unpersuasive. 405. It should first be observed that logic does not require the same test to be adopted in resolving the two issues, which are very different in nature: the degree and nature of a State’s involvement in an armed conflict on another State’s territory which is required for the conflict to be characterized as international, can very well, and without logical inconsistency, differ from the degree and nature of involvement required to give rise to that State’s responsibility for a specific act committed in the course of the conflict. 406. It must next be noted that the “overall control” test has the major drawback of broadening the scope of State responsibility well beyond the fundamental principle governing the law of international responsibility: a State is responsible only for its own conduct, that is to say the conduct of persons acting, on whatever basis, on its behalf. That is true of acts carried out by its official organs, and also by persons or entities which are not formally recognized as official organs under internal law but which must nevertheless be equated with State organs because they are in a relationship of complete dependence on the State. Apart from these cases, a State’s responsibility can be incurred for acts committed by persons or groups of persons ⎯ neither State organs nor to be equated with such organs ⎯ only if, assuming those acts to be internationally wrongful, they are attributable to it under the rule of customary international law reflected in Article 8 cited above (paragraph 398). This is so where an organ of the State gave the instructions or provided the direction pursuant to which the perpetrators of the wrongful act acted or where it exercised effective control over the action during which the wrong was committed. In this regard the “overall control” test is unsuitable, for it stretches too far, almost to breaking point, the connection which must exist between the conduct of a State’s organs and its international responsibility. 407. Thus it is on the basis of its settled jurisprudence that the Court will determine whether the Respondent has incurred responsibility under the rule of customary international law set out in Article 8 of the ILC Articles on State Responsibility. * 408. The Respondent has emphasized that in the final judgments of the Chambers of the ICTY relating to genocide in Srebrenica, none of its leaders have been found to have been implicated. The Applicant does not challenge that reading, but makes the point that that issue has not been before the ICTY for decision. The Court observes that the ICTY has indeed not up to the present been directly concerned in final judgments with the question whether those leaders might bear responsibility in that respect. The Court notes the fact that the report of the United Nations Secretary-General does not establish any direct involvement by President Milošević with the massacre. The Court has already recorded the contacts between Milošević and the United Nations on 10 and 11 July (paragraph 285). On 14 July, as recorded in the Secretary-General’s Report, “the European Union negotiator, Mr. Bildt, travelled to Belgrade to meet with President Milošević. The meeting took place at Dobanovci, the hunting lodge outside Belgrade, where Mr. Bildt had met President and General Mladić one week earlier. According to Mr. Bildt’s public account of that second meeting, he pressed the President to arrange immediate access for UNHCR to assist the people of Srebrenica, and for ICRC to start to register those who were being treated by the BSA as prisoners of war. He also insisted that the Netherlands soldiers be allowed to leave at will. Mr. Bildt added that the international community would not tolerate an attack on Goražde, and that a ‘green light’ would have to be secured for free and unimpeded access to the enclaves. He also demanded that the road between Kiseljak and Sarajevo (‘Route Swan’) be opened to all non-military transport. President Milošević apparently acceded to the various demands, but also claimed that he did not have control over the matter. Milošević had also apparently explained, earlier in the meeting, that the whole incident had been provoked by escalating Muslim attacks from the enclave, in violation of the 1993 demilitarization agreement. A few hours into the meeting, General Mladić arrived at Dobanovci. Mr. Bildt noted that General Mladić readily agreed to most of the demands on Srebrenica, but remained opposed to some of the arrangements pertaining to the other enclaves, Sarajevo in particular. Eventually, with President Milošević’s intervention, it appeared that an agreement in principle had been reached. It was decided that another meeting would be held the next day in order to confirm the arrangements. Mr. Bildt had already arranged with Mr. Stoltenberg and Mr. Akashi [the Special Representative of the Secretary-General] that they would join him in Belgrade. He also requested that the UNPROFOR Commander also come to Belgrade in order to finalize some of the military details with Mladić.” (A/54/549, paras. 372-373.) 409. By 19 July, on the basis of the Belgrade meeting, Mr. Akashi was hopeful that both President Milošević and General Mladić might show some flexibility. The UNPROFOR Commander met with Mladić on 19 July and throughout the meeting kept in touch with Mr. Bildt who was holding parallel negotiations with President Milošević in Belgrade. Mladić gave his version of the events of the preceding days (his troops had “‘finished [it] in a correct way’”; some “‘unfortunate small incidents’ had occurred”). The UNPROFOR Commander and Mladić then signed an agreement which provided for “ICRC access to all ‘reception centres’ where the men and boys of Srebrenica were being held, by the next day; UNHCR and humanitarian aid convoys to be given access to Srebrenica; The evacuation of wounded from Potočari, as well as the hospital in Bratunac; The return of Dutchbat weapons and equipment taken by the BSA; The transfer of Dutchbat out of the enclave commencing on the afternoon of 21 July, following the evacuation of the remaining women, children and elderly who wished to leave. Subsequent to the signing of this agreement, the Special Representative wrote to President Milošević, reminding him of the agreement, that had not yet been honoured, to allow ICRC access to Srebrenica. The Special Representative later also telephoned President Milošević to reiterate the same point.” (Ibid., para. 392.) 410. The Court was referred to other evidence supporting or denying the Respondent’s effective control over, participation in, involvement in, or influence over the events in and around Srebrenica in July 1995. The Respondent quotes two substantial reports prepared seven years after the events, both of which are in the public domain, and readily accessible. The first, Srebrenica ⎯ a “safe” area, published in 2002 by the Netherlands Institute for War Documentation was prepared over a lengthy period by an expert team. The Respondent has drawn attention to the fact that this report contains no suggestion that the FRY leadership was involved in planning the attack or inciting the killing of non-Serbs; nor any hard evidence of assistance by the Yugoslav army to the armed forces of the Republika Srpska before the attack; nor any suggestion that the Belgrade Government had advance knowledge of the attack. The Respondent also quotes this passage from point 10 of the Epilogue to the Report relating to the “mass slaughter” and “the executions” following the fall of Srebrenica: “There is no evidence to suggest any political or military liaison with Belgrade, and in the case of this mass murder such a liaison is highly improbable.” The Respondent further observes that the Applicant’s only response to this submission is to point out that “the report, by its own admission, is not exhaustive”, and that this Court has been referred to evidence not used by the authors. 411. The Court observes, in respect of the Respondent’s submissions, that the authors of the Report do conclude that Belgrade was aware of the intended attack on Srebrenica. They record that the Dutch Military Intelligence Service and another Western intelligence service concluded that the July 1995 operations were co-ordinated with Belgrade (Part III, Chap. 7, Sect. 7). More significantly for present purposes, however, the authors state that “there is no evidence to suggest participation in the preparations for executions on the part of Yugoslav military personnel or the security agency (RDB). In fact there is some evidence to support the opposite view . . .” (Part IV, Chap. 2, Sect. 20). That supports the passage from point 10 of the Epilogue quoted by the Respondent, which was preceded by the following sentence: “Everything points to a central decision by the General Staff of the VRS.” 412. The second report is Balkan Battlegrounds, prepared by the United States Central Intelligence Agency, also published in 2002. The first volume under the heading “The Possibility of Yugoslav involvement” arrives at the following conclusion: “No basis has been established to implicate Belgrade’s military or security forces in the post-Srebrenica atrocities. While there are indications that the VJ or RDB [the Serbian State Security Department] may have contributed elements to the Srebrenica battle, there is no similar evidence that Belgrade-directed forces were involved in any of the subsequent massacres. Eyewitness accounts by survivors may be imperfect recollections of events, and details may have been overlooked. Narrations and other available evidence suggest that only Bosnian Serb troops were employed in the atrocities and executions that followed the military conquest of Srebrenica.” (Balkan Battlegrounds, p. 353.) The response of the Applicant was to quote an earlier passage which refers to reports which “suggest” that VJ troops and possibly elements of the Serbian State Security Department may have been engaged in the battle in Srebrenica ⎯ as indeed the second sentence of the passage quoted by the Respondent indicates. It is a cautious passage, and significantly gives no indication of any involvement by the Respondent in the post-conflict atrocities which are the subject of genocide-related convictions. Counsel for the Respondent also quoted from the evidence of the Deputy Commander of Dutchbat, given in the Milošević trial, in which the accused put to the officer the point quoted earlier from the Epilogue to the Netherlands report. The officer responded: “At least for me, I did not have any evidence that it was launched in co-operation with Belgrade. And again, I read all kinds of reports and opinions and papers where all kinds of scenarios were analysed, and so forth. Again, I do not have any proof that the action, being the attack on the enclave, was launched in co-operation with Belgrade.” The other evidence on which the Applicant relied relates to the influence, rather than the control, that President Milošević had or did not have over the authorities in Pale. It mainly consists of the evidence given at the Milošević trial by Lord Owen and General Wesley Clark and also Lord Owen’s publications. It does not establish a factual basis for finding the Respondent responsible on a basis of direction or control. (5) Conclusion as to responsibility for events at Srebrenica under Article III, paragraph (a), of the Genocide Convention 413. In the light of the information available to it, the Court finds, as indicated above, that it has not been established that the massacres at Srebrenica were committed by persons or entities ranking as organs of the Respondent (see paragraph 395 above). It finds also that it has not been established that those massacres were committed on the instructions, or under the direction of organs of the Respondent State, nor that the Respondent exercised effective control over the operations in the course of which those massacres, which, as indicated in paragraph 297 above, constituted the crime of genocide, were perpetrated. The Applicant has not proved that instructions were issued by the federal authorities in Belgrade, or by any other organ of the FRY, to commit the massacres, still less that any such instructions were given with the specific intent (dolus specialis) characterizing the crime of genocide, which would have had to be present in order for the Respondent to be held responsible on this basis. All indications are to the contrary: that the decision to kill the adult male population of the Muslim community in Srebrenica was taken by some members of the VRS Main Staff, but without instructions from or effective control by the FRY. As for the killings committed by the “Scorpions” paramilitary militias, notably at Trnovo (paragraph 289 above), even if it were accepted that they were an element of the genocide committed in the Srebrenica area, which is not clearly established by the decisions thus far rendered by the ICTY (see, in particular, the Trial Chamber’s decision of 12 April 2006 in the Stanišić and Simatović case, IT-03-69), it has not been proved that they took place either on the instructions or under the control of organs of the FRY. 414. Finally, the Court observes that none of the situations, other than those referred to in Articles 4 and 8 of the ILC’s Articles on State Responsibility, in which specific conduct may be attributed to a State, matches the circumstances of the present case in regard to the possibility of attributing the genocide at Srebrenica to the Respondent. The Court does not see itself required to decide at this stage whether the ILC’s Articles dealing with attribution, apart from Articles 4 and 8, express present customary international law, it being clear that none of them apply in this case. The acts constituting genocide were not committed by persons or entities which, while not being organs of the FRY, were empowered by it to exercise elements of the governmental authority (Art. 5), nor by organs placed at the Respondent’s disposal by another State (Art. 6), nor by persons in fact exercising elements of the governmental authority in the absence or default of the official authorities of the Respondent (Art. 9); finally, the Respondent has not acknowledged and adopted the conduct of the perpetrators of the acts of genocide as its own (Art. 11). 415. The Court concludes from the foregoing that the acts of those who committed genocide at Srebrenica cannot be attributed to the Respondent under the rules of international law of State responsibility: thus, the international responsibility of the Respondent is not engaged on this basis. VIII. The question of responsibility, in respect of Srebrenica, for acts enumerated in Article III, paragraphs (b) to (e), of the Genocide Convention 416. The Court now comes to the second of the questions set out in paragraph 379 above, namely, that relating to the Respondent’s possible responsibility on the ground of one of the acts related to genocide enumerated in Article III of the Convention. These are: conspiracy to commit genocide (Art. III, para. (b)), direct and public incitement to commit genocide (Art. III, para. (c)), attempt to commit genocide (Art. III, para. (d)) ⎯ though no claim is made under this head in the Applicant’s final submissions in the present case ⎯ and complicity in genocide (Art. III, para. (e)). For the reasons already stated (paragraph 380 above), the Court must make a finding on this matter inasmuch as it has replied in the negative to the previous question, that of the Respondent’s responsibility in the commission of the genocide itself. 417. It is clear from an examination of the facts of the case that subparagraphs (b) and (c) of Article III are irrelevant in the present case. It has not been proved that organs of the FRY, or persons acting on the instructions or under the effective control of that State, committed acts that could be characterized as “[c]onspiracy to commit genocide”(Art. III, para. (b)), or as “[d]irect and public incitement to commit genocide” (Art. III, para. (c)), if one considers, as is appropriate, only the events in Srebrenica. As regards paragraph (b), what was said above regarding the attribution to the Respondent of acts of genocide, namely that the massacres were perpetrated by persons and groups of persons (the VRS in particular) who did not have the character of organs of the Respondent, and did not act on the instructions or under the effective control of the Respondent, is sufficient to exclude the latter’s responsibility in this regard. As regards subparagraph (c), none of the information brought to the attention of the Court is sufficient to establish that organs of the Respondent, or persons acting on its instructions or under its effective control, directly and publicly incited the commission of the genocide in Srebrenica; nor is it proven, for that matter, that such organs or persons incited the commission of acts of genocide anywhere else on the territory of Bosnia and Herzegovina. In this respect, the Court must only accept precise and incontrovertible evidence, of which there is clearly none. 418. A more delicate question is whether it can be accepted that acts which could be characterized as “complicity in genocide”, within the meaning of Article III, paragraph (e), can be attributed to organs of the Respondent or to persons acting under its instructions or under its effective control. This question calls for some preliminary comment. 419. First, the question of “complicity” is to be distinguished from the question, already considered and answered in the negative, whether the perpetrators of the acts of genocide committed in Srebrenica acted on the instructions of or under the direction or effective control of the organs of the FRY. It is true that in certain national systems of criminal law, giving instructions or orders to persons to commit a criminal act is considered as the mark of complicity in the commission of that act. However, in the particular context of the application of the law of international responsibility in the domain of genocide, if it were established that a genocidal act had been committed on the instructions or under the direction of a State, the necessary conclusion would be that the genocide was attributable to the State, which would be directly responsible for it, pursuant to the rule referred to above (paragraph 398), and no question of complicity would arise. But, as already stated, that is not the situation in the present case. However there is no doubt that “complicity”, in the sense of Article III, paragraph (e), of the Convention, includes the provision of means to enable or facilitate the commission of the crime; it is thus on this aspect that the Court must focus. In this respect, it is noteworthy that, although “complicity”, as such, is not a notion which exists in the current terminology of the law of international responsibility, it is similar to a category found among the customary rules constituting the law of State responsibility, that of the “aid or assistance” furnished by one State for the commission of a wrongful act by another State. 420. In this connection, reference should be made to Article 16 of the ILC’s Articles on State Responsibility, reflecting a customary rule, which reads as follows: “Article 16 Aid or assistance in the commission of an internationally wrongful act A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.” Although this provision, because it concerns a situation characterized by a relationship between two States, is not directly relevant to the present case, it nevertheless merits consideration. The Court sees no reason to make any distinction of substance between “complicity in genocide”, within the meaning of Article III, paragraph (e), of the Convention, and the “aid or assistance” of a State in the commission of a wrongful act by another State within the meaning of the aforementioned Article 16 ⎯ setting aside the hypothesis of the issue of instructions or directions or the exercise of effective control, the effects of which, in the law of international responsibility, extend beyond complicity. In other words, to ascertain whether the Respondent is responsible for “complicity in genocide” within the meaning of Article III, paragraph (e), which is what the Court now has to do, it must examine whether organs of the respondent State, or persons acting on its instructions or under its direction or effective control, furnished “aid or assistance” in the commission of the genocide in Srebrenica, in a sense not significantly different from that of those concepts in the general law of international responsibility. 421. Before the Court turns to an examination of the facts, one further comment is required. It concerns the link between the specific intent (dolus specialis) which characterizes the crime of genocide and the motives which inspire the actions of an accomplice (meaning a person providing aid or assistance to the direct perpetrators of the crime): the question arises whether complicity presupposes that the accomplice shares the specific intent (dolus specialis) of the principal perpetrator. But whatever the reply to this question, there is no doubt that the conduct of an organ or a person furnishing aid or assistance to a perpetrator of the crime of genocide cannot be treated as complicity in genocide unless at the least that organ or person acted knowingly, that is to say, in particular, was aware of the specific intent (dolus specialis) of the principal perpetrator. If that condition is not fulfilled, that is sufficient to exclude categorization as complicity. The Court will thus first consider whether this latter condition is met in the present case. It is only if it replies to that question of fact in the affirmative that it will need to determine the legal point referred to above. 422. The Court is not convinced by the evidence furnished by the Applicant that the above conditions were met. Undoubtedly, the quite substantial aid of a political, military and financial nature provided by the FRY to the Republika Srpska and the VRS, beginning long before the tragic events of Srebrenica, continued during those events. There is thus little doubt that the atrocities in Srebrenica were committed, at least in part, with the resources which the perpetrators of those acts possessed as a result of the general policy of aid and assistance pursued towards them by the FRY. However, the sole task of the Court is to establish the legal responsibility of the Respondent, a responsibility which is subject to very specific conditions. One of those conditions is not fulfilled, because it is not established beyond any doubt in the argument between the Parties whether the authorities of the FRY supplied ⎯ and continued to supply ⎯ the VRS leaders who decided upon and carried out those acts of genocide with their aid and assistance, at a time when those authorities were clearly aware that genocide was about to take place or was under way; in other words that not only were massacres about to be carried out or already under way, but that their perpetrators had the specific intent characterizing genocide, namely, the intent to destroy, in whole or in part, a human group, as such. 423. A point which is clearly decisive in this connection is that it was not conclusively shown that the decision to eliminate physically the adult male population of the Muslim community from Srebrenica was brought to the attention of the Belgrade authorities when it was taken; the Court has found (paragraph 295 above) that that decision was taken shortly before it was actually carried out, a process which took a very short time (essentially between 13 and 16 July 1995), despite the exceptionally high number of victims. It has therefore not been conclusively established that, at the crucial time, the FRY supplied aid to the perpetrators of the genocide in full awareness that the aid supplied would be used to commit genocide. 424. The Court concludes from the above that the international responsibility of the Respondent is not engaged for acts of complicity in genocide mentioned in Article III, paragraph (e), of the Convention. In the light of this finding, and of the findings above relating to the other paragraphs of Article III, the international responsibility of the Respondent is not engaged under Article III as a whole. IX. The question of responsibility for breach of the obligations to prevent and punish genocide 425. The Court now turns to the third and last of the questions set out in paragraph 379 above: has the respondent State complied with its obligations to prevent and punish genocide under Article I of the Convention? Despite the clear links between the duty to prevent genocide and the duty to punish its perpetrators, these are, in the view of the Court, two distinct yet connected obligations, each of which must be considered in turn. 426. It is true that, simply by its wording, Article I of the Convention brings out the close link between prevention and punishment: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” It is also true that one of the most effective ways of preventing criminal acts, in general, is to provide penalties for persons committing such acts, and to impose those penalties effectively on those who commit the acts one is trying to prevent. Lastly, it is true that, although in the subsequent Articles, the Convention includes fairly detailed provisions concerning the duty to punish (Articles III to VII), it reverts to the obligation of prevention, stated as a principle in Article I, only in Article VIII: “Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.” 427. However, it is not the case that the obligation to prevent has no separate legal existence of its own; that it is, as it were, absorbed by the obligation to punish, which is therefore the only duty the performance of which may be subject to review by the Court. The obligation on each contracting State to prevent genocide is both normative and compelling. It is not merged in the duty to punish, nor can it be regarded as simply a component of that duty. It has its own scope, which extends beyond the particular case envisaged in Article VIII, namely reference to the competent organs of the United Nations, for them to take such action as they deem appropriate. Even if and when these organs have been called upon, this does not mean that the States parties to the Convention are relieved of the obligation to take such action as they can to prevent genocide from occurring, while respecting the United Nations Charter and any decisions that may have been taken by its competent organs. This is the reason why the Court will first consider the manner in which the Respondent has performed its obligation to prevent before examining the situation as regards the obligation to punish. (1) The obligation to prevent genocide 428. As regards the obligation to prevent genocide, the Court thinks it necessary to begin with the following introductory remarks and clarifications, amplifying the observations already made above. 429. First, the Genocide Convention is not the only international instrument providing for an obligation on the States parties to it to take certain steps to prevent the acts it seeks to prohibit. Many other instruments include a similar obligation, in various forms: see, for example, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (Article 2); the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, of 14 December 1973 (Art. 4); the Convention on the Safety of United Nations and Associated Personnel of 9 December 1994 (Art. 11); the International Convention on the Suppression of Terrorist Bombings of 15 December 1997 (Art. 15). The content of the duty to prevent varies from one instrument to another, according to the wording of the relevant provisions, and depending on the nature of the acts to be prevented. The decision of the Court does not, in this case, purport to establish a general jurisprudence applicable to all cases where a treaty instrument, or other binding legal norm, includes an obligation for States to prevent certain acts. Still less does the decision of the Court purport to find whether, apart from the texts applicable to specific fields, there is a general obligation on States to prevent the commission by other persons or entities of acts contrary to certain norms of general international law. The Court will therefore confine itself to determining the specific scope of the duty to prevent in the Genocide Convention, and to the extent that such a determination is necessary to the decision to be given on the dispute before it. This will, of course, not absolve it of the need to refer, if need be, to the rules of law whose scope extends beyond the specific field covered by the Convention. 430. Secondly, it is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. In this area the notion of “due diligence”, which calls for an assessment in concreto, is of critical importance. Various parameters operate when assessing whether a State has duly discharged the obligation concerned. The first, which varies greatly from one State to another, is clearly the capacity to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. The State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law; seen thus, a State’s capacity to influence may vary depending on its particular legal position vis-à-vis the situations and persons facing the danger, or the reality, of genocide. On the other hand, it is irrelevant whether the State whose responsibility is in issue claims, or even proves, that even if it had employed all means reasonably at its disposal, they would not have sufficed to prevent the commission of genocide. As well as being generally difficult to prove, this is irrelevant to the breach of the obligation of conduct in question, the more so since the possibility remains that the combined efforts of several States, each complying with its obligation to prevent, might have achieved the result ⎯ averting the commission of genocide ⎯ which the efforts of only one State were insufficient to produce. 431. Thirdly, a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. It is at the time when commission of the prohibited act (genocide or any of the other acts listed in Article III of the Convention) begins that the breach of an obligation of prevention occurs. In this respect, the Court refers to a general rule of the law of State responsibility, stated by the ILC in Article 14, paragraph 3, of its Articles on State Responsibility: “. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.” This obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences; that would be absurd, since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act. In fact, a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit. However, if neither genocide nor any of the other acts listed in Article III of the Convention are ultimately carried out, then a State that omitted to act when it could have done so cannot be held responsible a posteriori, since the event did not happen which, under the rule set out above, must occur for there to be a violation of the obligation to prevent. In consequence, in the present case the Court will have to consider the Respondent’s conduct, in the light of its duty to prevent, solely in connection with the massacres at Srebrenica, because these are the only acts in respect of which the Court has concluded in this case that genocide was committed. 432. Fourth and finally, the Court believes it especially important to lay stress on the differences between the requirements to be met before a State can be held to have violated the obligation to prevent genocide ⎯ within the meaning of Article I of the Convention ⎯ and those to be satisfied in order for a State to be held responsible for “complicity in genocide” ⎯ within the meaning of Article III, paragraph (e) ⎯ as previously discussed. There are two main differences; they are so significant as to make it impossible to treat the two types of violation in the same way. In the first place, as noted above, complicity always requires that some positive action has been taken to furnish aid or assistance to the perpetrators of the genocide, while a violation of the obligation to prevent results from mere failure to adopt and implement suitable measures to prevent genocide from being committed. In other words, while complicity results from commission, violation of the obligation to prevent results from omission; this is merely the reflection of the notion that the ban on genocide and the other acts listed in Article III, including complicity, places States under a negative obligation, the obligation not to commit the prohibited acts, while the duty to prevent places States under positive obligations, to do their best to ensure that such acts do not occur. In the second place, as also noted above, there cannot be a finding of complicity against a State unless at the least its organs were aware that genocide was about to be committed or was under way, and if the aid and assistance supplied, from the moment they became so aware onwards, to the perpetrators of the criminal acts or to those who were on the point of committing them, enabled or facilitated the commission of the acts. In other words, an accomplice must have given support in perpetrating the genocide with full knowledge of the facts. By contrast, a State may be found to have violated its obligation to prevent even though it had no certainty, at the time when it should have acted, but failed to do so, that genocide was about to be committed or was under way; for it to incur responsibility on this basis it is enough that the State was aware, or should normally have been aware, of the serious danger that acts of genocide would be committed. As will be seen below, this latter difference could prove decisive in the present case in determining the responsibility incurred by the Respondent. 433. In light of the foregoing, the Court will now consider the facts of the case. For the reasons stated above (paragraph 431), it will confine itself to the FRY’s conduct vis-à-vis the Srebrenica massacres. 434. The Court would first note that, during the period under consideration, the FRY was in a position of influence, over the Bosnian Serbs who devised and implemented the genocide in Srebrenica, unlike that of any of the other States parties to the Genocide Convention owing to the strength of the political, military and financial links between the FRY on the one hand and the Republika Srpska and the VRS on the other, which, though somewhat weaker than in the preceding period, nonetheless remained very close. 435. Secondly, the Court cannot but note that, on the relevant date, the FRY was bound by very specific obligations by virtue of the two Orders indicating provisional measures delivered by the Court in 1993. In particular, in its Order of 8 April 1993, the Court stated, inter alia, that although not able, at that early stage in the proceedings, to make “definitive findings of fact or of imputability” (I.C.J. Reports 1993, p. 22, para. 44) the FRY was required to ensure: “that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any acts of genocide, of conspiracy to commit genocide, of direct and public incitement to commit genocide, or of complicity in genocide . . .” (ibid., p. 24, para. 52 A.(2)). The Court’s use, in the above passage, of the term “influence” is particularly revealing of the fact that the Order concerned not only the persons or entities whose conduct was attributable to the FRY, but also all those with whom the Respondent maintained close links and on which it could exert a certain influence. Although in principle the two issues are separate, and the second will be examined below, it is not possible, when considering the way the Respondent discharged its obligation of prevention under the Convention, to fail to take account of the obligation incumbent upon it, albeit on a different basis, to implement the provisional measures indicated by the Court. 436. Thirdly, the Court recalls that although it has not found that the information available to the Belgrade authorities indicated, as a matter of certainty, that genocide was imminent (which is why complicity in genocide was not upheld above: paragraph 424), they could hardly have been unaware of the serious risk of it once the VRS forces had decided to occupy the Srebrenica enclave. Among the documents containing information clearly suggesting that such an awareness existed, mention should be made of the above-mentioned report (see paragraphs 283 and 285 above) of the United Nations Secretary-General prepared pursuant to General Assembly resolution 53/35 on the “fall of Srebrenica” (United Nations doc. A/54/549), which recounts the visit to Belgrade on 14 July 1995 of the European Union negotiator Mr. Bildt to meet Mr. Milošević. Mr. Bildt, in substance, informed Mr. Milošević of his serious concern and “pressed the President to arrange immediate access for the UNHCR to assist the people of Srebrenica, and for the ICRC to start to register those who were being treated by the BSA [Bosnian Serb Army] as prisoners of war”. 437. The Applicant has drawn attention to certain evidence given by General Wesley Clark before the ICTY in the Milošević case. General Clark referred to a conversation that he had had with Milošević during the negotiation of the Dayton Agreement. He stated that “I went to Milošević and I asked him. I said, ‘If you have so much influence over these [Bosnian] Serbs, how could you have allowed General Mladić to have killed all those people at Srebrenica?’ And he looked to me ⎯ at me. His expression was very grave. He paused before he answered, and he said, ‘Well, General Clark, I warned him not to do this, but he didn’t listen to me.’ And it was in the context of all the publicity at the time about the Srebrenica massacre.” (Milošević, IT-02-54-T, Transcript, 16 December 2003, pp. 30494-30495). General Clark gave it as his opinion, in his evidence before the ICTY, that the circumstances indicated that Milošević had foreknowledge of what was to be “a military operation combined with a massacre” (ibid., p. 30497). The ICTY record shows that Milošević denied ever making the statement to which General Clark referred, but the Trial Chamber nevertheless relied on General Clark’s testimony in its Decision of 16 June 2004 when rejecting the Motion for Judgment of Acquittal (Milošević, IT-02-54-T, Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 280). 438. In view of their undeniable influence and of the information, voicing serious concern, in their possession, the Yugoslav federal authorities should, in the view of the Court, have made the best efforts within their power to try and prevent the tragic events then taking shape, whose scale, though it could not have been foreseen with certainty, might at least have been surmised. The FRY leadership, and President Milošević above all, were fully aware of the climate of deep-seated hatred which reigned between the Bosnian Serbs and the Muslims in the Srebrenica region. As the Court has noted in paragraph 423 above, it has not been shown that the decision to eliminate physically the whole of the adult male population of the Muslim community of Srebrenica was brought to the attention of the Belgrade authorities. Nevertheless, given all the international concern about what looked likely to happen at Srebrenica, given Milošević’s own observations to Mladić, which made it clear that the dangers were known and that these dangers seemed to be of an order that could suggest intent to commit genocide, unless brought under control, it must have been clear that there was a serious risk of genocide in Srebrenica. Yet the Respondent has not shown that it took any initiative to prevent what happened, or any action on its part to avert the atrocities which were committed. It must therefore be concluded that the organs of the Respondent did nothing to prevent the Srebrenica massacres, claiming that they were powerless to do so, which hardly tallies with their known influence over the VRS. As indicated above, for a State to be held responsible for breaching its obligation of prevention, it does not need to be proven that the State concerned definitely had the power to prevent the genocide; it is sufficient that it had the means to do so and that it manifestly refrained from using them. Such is the case here. In view of the foregoing, the Court concludes that the Respondent violated its obligation to prevent the Srebrenica genocide in such a manner as to engage its international responsibility. (2) The obligation to punish genocide 439. The Court now turns to the question of the Respondent’s compliance with its obligation to punish the crime of genocide stemming from Article I and the other relevant provisions of the Convention. 440. In its fifth final submission, Bosnia and Herzegovina requests the Court to adjudge and declare: “5. That Serbia and Montenegro has violated and is violating its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide for having failed and for failing to punish acts of genocide or any other act prohibited by the Convention on the Prevention and Punishment of the Crime of Genocide, and for having failed and for failing to transfer individuals accused of genocide or any other act prohibited by the Convention to the International Criminal Tribunal for the former Yugoslavia and to fully co-operate with this Tribunal.” 441. This submission implicitly refers to Article VI of the Convention, according to which: “Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” 442. The Court would first recall that the genocide in Srebrenica, the commission of which it has established above, was not carried out in the Respondent’s territory. It concludes from this that the Respondent cannot be charged with not having tried before its own courts those accused of having participated in the Srebrenica genocide, either as principal perpetrators or as accomplices, or of having committed one of the other acts mentioned in Article III of the Convention in connection with the Srebrenica genocide. Even if Serbian domestic law granted jurisdiction to its criminal courts to try those accused, and even supposing such proceedings were compatible with Serbia’s other international obligations, inter alia its obligation to co-operate with the ICTY, to which the Court will revert below, an obligation to try the perpetrators of the Srebrenica massacre in Serbia’s domestic courts cannot be deduced from Article VI. Article VI only obliges the Contracting Parties to institute and exercise territorial criminal jurisdiction; while it certainly does not prohibit States, with respect to genocide, from conferring jurisdiction on their criminal courts based on criteria other than where the crime was committed which are compatible with international law, in particular the nationality of the accused, it does not oblige them to do so. 443. It is thus to the obligation for States parties to co-operate with the “international penal tribunal” mentioned in the above provision that the Court must now turn its attention. For it is certain that once such a court has been established, Article VI obliges the Contracting Parties “which shall have accepted its jurisdiction” to co-operate with it, which implies that they will arrest persons accused of genocide who are in their territory ⎯ even if the crime of which they are accused was committed outside it ⎯ and, failing prosecution of them in the parties’ own courts, that they will hand them over for trial by the competent international tribunal. 444. In order to determine whether the Respondent has fulfilled its obligations in this respect, the Court must first answer two preliminary questions: does the ICTY constitute an “international penal tribunal” within the meaning of Article VI? And must the Respondent be regarded as having “accepted the jurisdiction” of the tribunal within the meaning of that provision? 445. As regards the first question, the Court considers that the reply must definitely be in the affirmative. The notion of an “international penal tribunal” within the meaning of Article VI must at least cover all international criminal courts created after the adoption of the Convention (at which date no such court existed) of potentially universal scope, and competent to try the perpetrators of genocide or any of the other acts enumerated in Article III. The nature of the legal instrument by which such a court is established is without importance in this respect. When drafting the Genocide Convention, its authors probably thought that such a court would be created by treaty: a clear pointer to this lies in the reference to “those Contracting Parties which shall have accepted [the] jurisdiction” of the international penal tribunal. Yet, it would be contrary to the object of the provision to interpret the notion of “international penal tribunal” restrictively in order to exclude from it a court which, as in the case of the ICTY, was created pursuant to a United Nations Security Council resolution adopted under Chapter VII of the Charter. The Court has found nothing to suggest that such a possibility was considered by the authors of the Convention, but no intention of seeking to exclude it can be imputed to them. 446. The question whether the Respondent must be regarded as having “accepted the jurisdiction” of the ICTY within the meaning of Article VI must consequently be formulated as follows: is the Respondent obliged to accept the jurisdiction of the ICTY, and to co-operate with the Tribunal by virtue of the Security Council resolution which established it, or of some other rule of international law? If so, it would have to be concluded that, for the Respondent, co-operation with the ICTY constitutes both an obligation stemming from the resolution concerned and from the United Nations Charter, or from another norm of international law obliging the Respondent to co-operate, and an obligation arising from its status as a party to the Genocide Convention, this last clearly being the only one of direct relevance in the present case. 447. For the purposes of the present case, the Court only has to determine whether the FRY was under an obligation to co-operate with the ICTY, and if so, on what basis, from when the Srebrenica genocide was committed in July 1995. To that end, suffice it to note that the FRY was under an obligation to co-operate with the ICTY from 14 December 1995 at the latest, the date of the signing and entry into force of the Dayton Agreement between Bosnia and Herzegovina, Croatia and the FRY. Annex 1A of that treaty, made binding on the parties by virtue of its Article II, provides that they must fully co-operate, notably with the ICTY. Thus, from 14 December 1995 at the latest, and at least on the basis of the Dayton Agreement, the FRY must be regarded as having “accepted [the] jurisdiction” of the ICTY within the meaning of Article VI of the Convention. This fact is sufficient for the Court in its consideration of the present case, since its task is to rule upon the Respondent’s compliance with the obligation resulting from Article VI of the Convention in relation to the Srebrenica genocide, from when it was perpetrated to the present day, and since the Applicant has not invoked any failure to respect the obligation to co-operate alleged to have occurred specifically between July and December 1995. Similarly, the Court is not required to decide whether, between 1995 and 2000, the FRY’s obligation to co-operate had any legal basis besides the Dayton Agreement. Needless to say, the admission of the FRY to the United Nations in 2000 provided a further basis for its obligation to co-operate: but while the legal basis concerned was thereby confirmed, that did not change the scope of the obligation. There is therefore no need, for the purposes of assessing how the Respondent has complied with its obligation under Article VI of the Convention, to distinguish between the period before and the period after its admission as a Member of the United Nations, at any event from 14 December 1995 onwards. 448. Turning now to the facts of the case, the question the Court must answer is whether the Respondent has fully co-operated with the ICTY, in particular by arresting and handing over to the Tribunal any persons accused of genocide as a result of the Srebrenica genocide and finding themselves on its territory. In this connection, the Court would first observe that, during the oral proceedings, the Respondent asserted that the duty to co-operate had been complied with following the régime change in Belgrade in the year 2000, thus implicitly admitting that such had not been the case during the preceding period. The conduct of the organs of the FRY before the régime change however engages the Respondent’s international responsibility just as much as it does that of its State authorities from that date. Further, the Court cannot but attach a certain weight to the plentiful, and mutually corroborative, information suggesting that General Mladić, indicted by the ICTY for genocide, as one of those principally responsible for the Srebrenica massacres, was on the territory of the Respondent at least on several occasions and for substantial periods during the last few years and is still there now, without the Serb authorities doing what they could and can reasonably do to ascertain exactly where he is living and arrest him. In particular, counsel for the Applicant referred during the hearings to recent statements made by the Respondent’s Minister for Foreign Affairs, reproduced in the national press in April 2006, and according to which the intelligence services of that State knew where Mladić was living in Serbia, but refrained from informing the authorities competent to order his arrest because certain members of those services had allegedly remained loyal to the fugitive. The authenticity and accuracy of those statements has not been disputed by the Respondent at any time. 449. It therefore appears to the Court sufficiently established that the Respondent failed in its duty to co-operate fully with the ICTY. This failure constitutes a violation by the Respondent of its duties as a party to the Dayton Agreement, and as a Member of the United Nations, and accordingly a violation of its obligations under Article VI of the Genocide Convention. The Court is of course without jurisdiction in the present case to declare that the Respondent has breached any obligations other than those under the Convention. But as the Court has jurisdiction to declare a breach of Article VI insofar as it obliges States to co-operate with the “international penal tribunal”, the Court may find for that purpose that the requirements for the existence of such a breach have been met. One of those requirements is that the State whose responsibility is in issue must have “accepted [the] jurisdiction” of that “international penal tribunal”; the Court thus finds that the Respondent was under a duty to co-operate with the tribunal concerned pursuant to international instruments other than the Convention, and failed in that duty. On this point, the Applicant’s submissions relating to the violation by the Respondent of Articles I and VI of the Convention must therefore be upheld. 450. It follows from the foregoing considerations that the Respondent failed to comply both with its obligation to prevent and its obligation to punish genocide deriving from the Convention, and that its international responsibility is thereby engaged. X. The question of responsibility for breach of the Court’s Orders indicating provisional measures 451. In its seventh submission Bosnia and Herzegovina requests the Court to adjudge and declare: “7. That in failing to comply with the Orders for indication of provisional measures rendered by the Court on 8 April 1993 and 13 September 1993 Serbia and Montenegro has been in breach of its international obligations and is under an obligation to Bosnia and Herzegovina to provide for the latter violation symbolic compensation, the amount of which is to be determined by the Court.” 452. The Court observes that its “orders on provisional measures under Article 41 [of the Statute] have binding effect” (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109). Although the Court only had occasion to make such a finding in a judgment subsequent to the Orders that it made in the present dispute, this does not affect the binding nature of those Orders, since in the Judgment referred to the Court did no more than give the provisions of the Statute the meaning and scope that they had possessed from the outset. It notes that provisional measures are aimed at preserving the rights of each of the parties pending the final decision of the Court. The Court’s Orders of 8 April and 13 September 1993 indicating provisional measures created legal obligations which both Parties were required to satisfy. 453. The Court indicated the following provisional measures in the dispositif, paragraph 52, of its Order of 8 April 1993: “A. (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) should immediately, in pursuance of its undertaking in the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, take all measures within its power to prevent commission of the crime of genocide; (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) should in particular ensure that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any acts of genocide, of conspiracy to commit genocide, of direct and public incitement to commit genocide, or of complicity in genocide, whether directed against the Muslim population of Bosnia and Herzegovina or against any other national, ethnical, racial or religious group; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) and the Government of the Republic of Bosnia and Herzegovina should not take any action and should ensure that no action is taken which may aggravate or extend the existing dispute over the prevention or punishment of the crime of genocide, or render it more difficult of solution.” 454. The Court reaffirmed these measures in the dispositif of its Order of 13 September 1993. 455. From the Applicant’s written and oral pleadings as a whole, it is clear that the Applicant is not accusing the Respondent of failing to respect measure B above, and that its submissions relate solely to the measures indicated in paragraph A, subparagraphs (1) and (2). It is therefore only to that extent that the Court will consider whether the Respondent has fully complied with its obligation to respect the measures ordered by the Court. 456. The answer to this question may be found in the reasoning in the present Judgment relating to the Applicant’s other submissions to the Court. From these it is clear that in respect of the massacres at Srebrenica in July 1995 the Respondent failed to fulfil its obligation indicated in paragraph 52 A (1) of the Order of 8 April 1993 and reaffirmed in the Order of 13 September 1993 to “take all measures within its power to prevent commission of the crime of genocide”. Nor did it comply with the measure indicated in paragraph 52 A (2) of the Order of 8 April 1993, reaffirmed in the Order of 13 September 1993, insofar as that measure required it to “ensure that any . . . organizations and persons which may be subject to its . . . influence . . . do not commit any acts of genocide”. 457. However, the remainder of the Applicant’s seventh submission claiming that the Respondent failed to comply with the provisional measures indicated must be rejected for the reasons set out above in respect of the Applicant’s other submissions (paragraphs 415 and 424). 458. As for the request that the Court hold the Respondent to be under an obligation to the Applicant to provide symbolic compensation, in an amount to be determined by the Court, for the breach thus found, the Court observes that the question of compensation for the injury caused to the Applicant by the Respondent’s breach of aspects of the Orders indicating provisional measures merges with the question of compensation for the injury suffered from the violation of the corresponding obligations under the Genocide Convention. It will therefore be dealt with below, in connection with consideration of points (b) and (c) of the Respondent’s sixth submission, which concern the financial compensation which the Applicant claims to be owed by the Respondent. XI. The question of reparation 459. Having thus found that the Respondent has failed to comply with its obligations under the Genocide Convention in respect of the prevention and punishment of genocide, the Court turns to the question of reparation. The Applicant, in its final submissions, has asked the Court to decide that the Respondent “must redress the consequences of its international wrongful acts and, as a result of the international responsibility incurred for . . . violations of the Convention on the Prevention and Punishment of the Crime of Genocide, must pay, and Bosnia and Herzegovina is entitled to receive, in its own right and as parens patriae for its citizens, full compensation for the damages and losses caused” (submission 6 (b)). The Applicant also asks the Court to decide that the Respondent “shall immediately take effective steps to ensure full compliance with its obligation to punish acts of genocide under the Convention on the Prevention and Punishment of the Crime of Genocide or any other act prohibited by the Convention and to transfer individuals accused of genocide or any other act prohibited by the Convention to the International Criminal Tribunal for the former Yugoslavia and to fully co-operate with this Tribunal” (submission 6 (a)), and that the Respondent “shall provide specific guarantees and assurances that it will not repeat the wrongful acts complained of, the form of which guarantees and assurances is to be determined by the Court” (submission 6 (d)). These submissions, and in particular that relating to compensation, were however predicated on the basis that the Court would have upheld, not merely that part of the Applicant’s claim as relates to the obligation of prevention and punishment, but also the claim that the Respondent has violated its substantive obligation not to commit genocide, as well as the ancillary obligations under the Convention concerning complicity, conspiracy and incitement, and the claim that the Respondent has aided and abetted genocide. The Court has now to consider what is the appropriate form of reparation for the other forms of violation of the Convention which have been alleged against the Respondent and which the Court has found to have been established, that is to say breaches of the obligations to prevent and punish. 460. The principle governing the determination of reparation for an internationally wrongful act is as stated by the Permanent Court of International Justice in the Factory at Chorzów case: that “reparation must, so far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed” (P.C.I.J. Series A, No. 17, p. 47: see also Article 31 of the ILC’s Articles on State Responsibility). In the circumstances of this case, as the Applicant recognizes, it is inappropriate to ask the Court to find that the Respondent is under an obligation of restitutio in integrum. Insofar as restitution is not possible, as the Court stated in the case of the Gabčíkovo-Nagymaros Project (Hungary/Slovakia), “[i]t is a well-established rule of international law that an injured State is entitled to obtain compensation from the State which has committed an internationally wrongful act for the damage caused by it” (I.C.J. Reports 1997, p. 81, para. 152.; cf. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 198, paras. 152-153; see also Article 36 of the ILC’s Articles on State Responsibility). It is therefore appropriate to consider what were the consequences of the failure of the Respondent to comply with its obligations under the Genocide Convention to prevent and punish the crime of genocide, committed in Bosnia and Herzegovina, and what damage can be said to have been caused thereby. 461. The Court has found that the authorities of the Respondent could not have been unaware of the grave risk of genocide once the VRS forces had decided to take possession of the Srebrenica enclave, and that in view of its influence over the events, the Respondent must be held to have had the means of action by which it could seek to prevent genocide, and to have manifestly refrained from employing them (paragraph 438). To that extent therefore it failed to comply with its obligation of prevention under the Convention. The obligation to prevent the commission of the crime of genocide is imposed by the Genocide Convention on any State party which, in a given situation, has it in its power to contribute to restraining in any degree the commission of genocide. To make this finding, the Court did not have to decide whether the acts of genocide committed at Srebrenica would have occurred anyway even if the Respondent had done as it should have and employed the means available to it. This is because, as explained above, the obligation to prevent genocide places a State under a duty to act which is not dependent on the certainty that the action to be taken will succeed in preventing the commission of acts of genocide, or even on the likelihood of that outcome. It therefore does not follow from the Court’s reasoning above in finding a violation by the Respondent of its obligation of prevention that the atrocious suffering caused by the genocide committed at Srebrenica would not have occurred had the violation not taken place. 462. The Court cannot however leave it at that. Since it now has to rule on the claim for reparation, it must ascertain whether, and to what extent, the injury asserted by the Applicant is the consequence of wrongful conduct by the Respondent with the consequence that the Respondent should be required to make reparation for it, in accordance with the principle of customary international law stated above. In this context, the question just mentioned, whether the genocide at Srebrenica would have taken place even if the Respondent had attempted to prevent it by employing all means in its possession, becomes directly relevant, for the definition of the extent of the obligation of reparation borne by the Respondent as a result of its wrongful conduct. The question is whether there is a sufficiently direct and certain causal nexus between the wrongful act, the Respondent’s breach of the obligation to prevent genocide, and the injury suffered by the Applicant, consisting of all damage of any type, material or moral, caused by the acts of genocide. Such a nexus could be considered established only if the Court were able to conclude from the case as a whole and with a sufficient degree of certainty that the genocide at Srebrenica would in fact have been averted if the Respondent had acted in compliance with its legal obligations. However, the Court clearly cannot do so. As noted above, the Respondent did have significant means of influencing the Bosnian Serb military and political authorities which it could, and therefore should, have employed in an attempt to prevent the atrocities, but it has not been shown that, in the specific context of these events, those means would have sufficed to achieve the result which the Respondent should have sought. Since the Court cannot therefore regard as proven a causal nexus between the Respondent’s violation of its obligation of prevention and the damage resulting from the genocide at Srebrenica, financial compensation is not the appropriate form of reparation for the breach of the obligation to prevent genocide. 463. It is however clear that the Applicant is entitled to reparation in the form of satisfaction, and this may take the most appropriate form, as the Applicant itself suggested, of a declaration in the present Judgment that the Respondent has failed to comply with the obligation imposed by the Convention to prevent the crime of genocide. As in the Corfu Channel (United Kingdom v. Albania) case, the Court considers that a declaration of this kind is “in itself appropriate satisfaction” (Merits, Judgment, I.C.J. Reports 1949, pp. 35, 36), and it will, as in that case, include such a declaration in the operative clause of the present Judgment. The Applicant acknowledges that this failure is no longer continuing, and accordingly has withdrawn the request made in the Reply that the Court declare that the Respondent “has violated and is violating the Convention” (emphasis added). 464. The Court now turns to the question of the appropriate reparation for the breach by the Respondent of its obligation under the Convention to punish acts of genocide; in this respect, the Applicant asserts the existence of a continuing breach, and therefore maintains (inter alia) its request for a declaration in that sense. As noted above (paragraph 440), the Applicant includes under this heading the failure “to transfer individuals accused of genocide or any other act prohibited by the Convention to the International Criminal Tribunal for the former Yugoslavia and to fully co-operate with this Tribunal”; and the Court has found that in that respect the Respondent is indeed in breach of Article VI of the Convention (paragraph 449 above). A declaration to that effect is therefore one appropriate form of satisfaction, in the same way as in relation to the breach of the obligation to prevent genocide. However, the Applicant asks the Court in this respect to decide more specifically that “Serbia and Montenegro shall immediately take effective steps to ensure full compliance with its obligation to punish acts of genocide under the Convention on the Prevention and Punishment of the Crime of Genocide or any other act prohibited by the Convention and to transfer individuals accused of genocide or any other act prohibited by the Convention to the International Criminal Tribunal for the former Yugoslavia and to fully co-operate with this Tribunal.” 465. It will be clear from the Court’s findings above on the question of the obligation to punish under the Convention that it is satisfied that the Respondent has outstanding obligations as regards the transfer to the ICTY of persons accused of genocide, in order to comply with its obligations under Articles I and VI of the Genocide Convention, in particular in respect of General Ratko Mladić (paragraph 448). The Court will therefore make a declaration in these terms in the operative clause of the present Judgment, which will in its view constitute appropriate satisfaction. 466. In its final submissions, the Applicant also requests the Court to decide “that Serbia and Montenegro shall provide specific guarantees and assurances that it will not repeat the wrongful acts complained of, the form of which guarantees and assurances is to be determined by the Court”. As presented, this submission relates to all the wrongful acts, i.e. breaches of the Genocide Convention, attributed by the Applicant to the Respondent, thus including alleged breaches of the Respondent’s obligation not itself to commit genocide, as well as the ancillary obligations under the Convention concerning complicity, conspiracy and incitement. Insofar as the Court has not upheld these claims, the submission falls. There remains however the question whether it is appropriate to direct that the Respondent provide guarantees and assurances of non-repetition in relation to the established breaches of the obligations to prevent and punish genocide. The Court notes the reasons advanced by counsel for the Applicant at the hearings in support of the submission, which relate for the most part to “recent events [which] cannot fail to cause concern as to whether movements in Serbia and Montenegro calling for genocide have disappeared”. It considers that these indications do not constitute sufficient grounds for requiring guarantees of non-repetition. The Applicant also referred in this connection to the question of non-compliance with provisional measures, but this matter has already been examined above (paragraphs 451 to 458), and will be mentioned further below. In the circumstances, the Court considers that the declaration referred to in paragraph 465 above is sufficient as regards the Respondent’s continuing duty of punishment, and therefore does not consider that this is a case in which a direction for guarantees of non-repetition would be appropriate. 467. Finally, the Applicant has presented the following submission: “That in failing to comply with the Orders for indication of provisional measures rendered by the Court on 8 April 1993 and 13 September 1993 Serbia and Montenegro has been in breach of its international obligations and is under an obligation to Bosnia and Herzegovina to provide for the latter violation symbolic compensation, the amount of which is to be determined by the Court.” The provisional measures indicated by the Court’s Order of 8 April 1993, and reiterated by the Order of 13 September 1993, were addressed specifically to the Respondent’s obligation “to prevent commission of the crime of genocide” and to certain measures which should “in particular” be taken to that end (I.C.J. Reports 1993, p. 24, para. 52 (A) (1) and (2)). 468. Provisional measures under Article 41 of the Statute are indicated “pending [the] final decision” in the case, and the measures indicated in 1993 will thus lapse on the delivery of the present Judgment (cf. Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objections, Judgment, I.C.J. Reports 1952, p. 114; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 442, para. 112). However, as already observed (paragraph 452 above), orders made by the Court indicating provisional measures under Article 41 of the Statute have binding effect, and their purpose is to protect the rights of either party, pending the final decision in the case. 469. The Court has found above (paragraph 456) that, in respect of the massacres at Srebrenica in July 1995, the Respondent failed to take measures which would have satisfied the requirements of paragraphs 52 (A) (1) and (2) of the Court’s Order of 8 April 1993 (reaffirmed in the Order of 13 September 1993). The Court however considers that, for purposes of reparation, the Respondent’s non-compliance with the provisional measures ordered is an aspect of, or merges with, its breaches of the substantive obligations of prevention and punishment laid upon it by the Convention. The Court does not therefore find it appropriate to give effect to the Applicant’s request for an order for symbolic compensation in this respect. The Court will however include in the operative clause of the present Judgment, by way of satisfaction, a declaration that the Respondent has failed to comply with the Court’s Orders indicating provisional measures. 470. The Court further notes that one of the provisional measures indicated in the Order of 8 April and reaffirmed in that of 13 September 1993 was addressed to both Parties. The Court’s findings in paragraphs 456 to 457 and 469 are without prejudice to the question whether the Applicant did not also fail to comply with the Orders indicating provisional measures. XII. Operative clause 471. For these reasons, THE COURT, (1) by ten votes to five, Rejects the objections contained in the final submissions made by the Respondent to the effect that the Court has no jurisdiction; and affirms that it has jurisdiction, on the basis of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, to adjudicate upon the dispute brought before it on 20 March 1993 by the Republic of Bosnia and Herzegovina; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge ad hoc Mahiou; AGAINST: Judges Ranjeva, Shi, Koroma, Skotnikov; Judge ad hoc Kreća; (2) by thirteen votes to two, Finds that Serbia has not committed genocide, through its organs or persons whose acts engage its responsibility under customary international law, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide; IN FAVOUR: President Higgins; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Kreća; AGAINST: Vice-President Al-Khasawneh; Judge ad hoc Mahiou; (3) by thirteen votes to two, Finds that Serbia has not conspired to commit genocide, nor incited the commission of genocide, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide; IN FAVOUR: President Higgins; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Kreća; AGAINST: Vice-President Al-Khasawneh; Judge ad hoc Mahiou; (4) by eleven votes to four, Finds that Serbia has not been complicit in genocide, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide; IN FAVOUR: President Higgins; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Sepúlveda-Amor, Skotnikov; Judge ad hoc Kreća; AGAINST: Vice-President Al-Khasawneh; Judges Keith, Bennouna; Judge ad hoc Mahiou; (5) by twelve votes to three, Finds that Serbia has violated the obligation to prevent genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred in Srebrenica in July 1995; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Owada, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge ad hoc Mahiou; AGAINST: Judges Tomka, Skotnikov; Judge ad hoc Kreća; (6) by fourteen votes to one, Finds that Serbia has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by having failed to transfer Ratko Mladić, indicted for genocide and complicity in genocide, for trial by the International Criminal Tribunal for the former Yugoslavia, and thus having failed fully to co-operate with that Tribunal; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Mahiou; AGAINST: Judge ad hoc Kreća; (7) by thirteen votes to two, Finds that Serbia has violated its obligation to comply with the provisional measures ordered by the Court on 8 April and 13 September 1993 in this case, inasmuch as it failed to take all measures within its power to prevent genocide in Srebrenica in July 1995; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge ad hoc Mahiou; AGAINST: Judge Skotnikov; Judge ad hoc Kreća; (8) by fourteen votes to one, Decides that Serbia shall immediately take effective steps to ensure full compliance with its obligation under the Convention on the Prevention and Punishment of the Crime of Genocide to punish acts of genocide as defined by Article II of the Convention, or any of the other acts proscribed by Article III of the Convention, and to transfer individuals accused of genocide or any of those other acts for trial by the International Criminal Tribunal for the former Yugoslavia, and to co-operate fully with that Tribunal; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Mahiou; AGAINST: Judge ad hoc Kreća; (9) by thirteen votes to two, Finds that, as regards the breaches by Serbia of the obligations referred to in subparagraphs (5) and (7) above, the Court’s findings in those paragraphs constitute appropriate satisfaction, and that the case is not one in which an order for payment of compensation, or, in respect of the violation referred to in subparagraph (5), a direction to provide assurances and guarantees of non-repetition, would be appropriate. IN FAVOUR: President Higgins; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Kreća; AGAINST: Vice-President Al-Khasawneh; Judge ad hoc Mahiou. Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-sixth day of February, two thousand and seven, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of Bosnia and Herzegovina and the Government of Serbia, respectively. (Signed) Rosalyn HIGGINS, President. (Signed) Philippe COUVREUR, Registrar. Vice-President AL-KHASAWNEH appends a dissenting opinion to the Judgment of the Court; Judges RANJEVA, SHI and KOROMA append a joint dissenting opinion to the Judgment of the Court; Judge RANJEVA appends a separate opinion to the Judgment of the Court; Judges SHI and KOROMA append a joint declaration to the Judgment of the Court; Judges OWADA and TOMKA append separate opinions to the Judgment of the Court; Judges KEITH, BENNOUNA and SKOTNIKOV append declarations to the Judgment of the Court; Judge ad hoc MAHIOU appends a dissenting opinion to the Judgment of the Court; Judge ad hoc KREĆA appends a separate opinion to the Judgment of the Court. (Initialled) R.H. (Initialled) Ph.C. [p241] DISSENTING OPINION OF VICE-PRESIDENT AL-KHASAWNEH 1. I feel that I should explain the nature of my dissent before explaining the reasons for it. I am not in total disagreement with the majority: [p242] regarding jurisdiction, I come to the same conclusion contained in paragraph 1 of the dispositif that the Court’s jurisdiction is established, although I have serious doubts whether, in terms of the proper administration of justice, the already settled question of jurisdiction should have been re-examined in the Judgment. 2. I, likewise, concur with the findings (paragraphs 5-7 of the dispositif) dealing respectively with Serbia’s violation of its obligations under the Genocide Convention to prevent genocide in Srebrenica and to cooperate fully with the International Criminal Tribunal for the former Yugoslavia; and its failure to comply with the two Orders on provisional measures issued by the Court in 1993. 3. Where, however, my learned colleagues and I part company is with respect to the central question of Serbia’s international responsibility incurred as a consequence of its involvement - as a principal actor or an accomplice - in the genocide that took place in Bosnia and Herzegovina. Such involvement is supported, in my opinion, by massive and compelling evidence. My disagreement with the majority, however, relates not only to their conclusions but also to the very assumptions on which their reasoning is based and to their methodology for appreciating the facts and drawing inferences therefrom, and is hence profound. Therefore, notwithstanding my agreement with some parts of the Judgment, and much to my regret, I am duty and conscience bound to dissent. In explanation of this position I append the present opinion. I. THE COURT’S JURISDICTION 4. The jurisdictional issues in the present case have revolved around the international status of the Respondent and its membership in the United Nations. Those issues, which permeated all phases of this case and other related cases, can be traced to the State succession arising out of the process of disintegration of the Socialist Federal Republic of Yugoslavia (SFRY) which took place in the early 1990s. Briefly described, that process - for it has to be emphasized that there was no agreed point in time when the SFRY could be said to have been extinguished [FN1] - started when both Slovenia and Croatia seceded from the SFRY on 25 June 1991. Macedonia did the same on 17 September 1991 and Bosnia and Herzegovina, the last to secede, followed on 6 March 1992. Only two constituent republics, Serbia and Montenegro, were left in the old Yugoslavia and on 27 April 1992 they joined to form the Federal Republic of Yugoslavia (FRY) which claimed to be the continuator of the SFRY and declared its intention “to strictly abide by all the international commit[p243]ments” of the SFRY as well as to remain “bound by all obligations to international organizations and institutions whose member it is”. [FN2] ------------------------------------------------------------------------------------------------- [FN1] As was the case, for example, with the Union of Soviet Socialist Republics. [FN2] United Nations doc. A/46/915 (1992), 7 May 1992, Ann. II. 3 Security Council resolution 757 (1992), 30 May 1992. 4 Security Council resolution 777 (1992), 19 September 1992. 5 General Assembly resolution 47/1 (1992), 22 September 1992. 6 See Michael Scharf, “Musical Chairs: The Dissolution of States and Membership in the United Nations”, Cornell International Law Journal, 1995, Vol. 28, pp. 58-62. ------------------------------------------------------------------------------------------------- 5. While the four Republics that emerged from the SFRY were admitted to United Nations membership in 1992 and 1993, the FRY’s claim to continuity was noted by the Security Council on 30 May 1992 as a claim that “has not been generally accepted”. [FN3] Again the Security Council, on 19 September 1992, considered that the SFRY had ceased to exist, recalled its earlier resolution, and considered that the FRY “cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations; and therefore recommend[ed] to the General Assembly that it decide that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly”. [FN4] ------------------------------------------------------------------------------------------------- [FN3] Security Council resolution 757 (1992), 30 May 1992. [FN4] Security Council resolution 777 (1992), 19 September 1992. ------------------------------------------------------------------------------------------------- Two days later the General Assembly adopted a resolution in which inter alia it decided that the FRY “should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly”. [FN5] ------------------------------------------------------------------------------------------------- [FN5] General Assembly resolution 47/1 (1992), 22 September 1992. ------------------------------------------------------------------------------------------------- 6. Both the language of the resolutions and their negotiating history suggest that they were compromise resolutions that fell short of terminating or suspending SFRY membership in the United Nations. [FN6] In fact under the United Nations Charter, there is no way in which the SFRY membership could have been terminated given the veto power of the permanent members, some of whom were as opposed to such a termination as others were keen on it. In any case, the requirements for suspension (Charter, Art. 5) or expulsion (Charter, Art. 6) were never invoked by the Security Council nor put into motion. The FRY clung to its membership claim with the result that “the only practical consequence that [General Assembly resolution 47/1] draws is that the Federal Republic of Yugoslavia (Serbia and Montenegro) shall not participate in the work of the General Assembly” (letter of the Under-Secretary-General and Legal Counsel of the United Nations; incidentally the only legal authority to [p244] appraise the matter in what was an otherwise blatantly political process). That letter from the Legal Counsel of the United Nations left no room for doubt. It went on to state “on the other hand, the resolution neither terminates nor suspends Yugoslavia’s membership”. ------------------------------------------------------------------------------------------------- [FN6] See Michael Scharf, “Musical Chairs: The Dissolution of States and Membership in the United Nations”, Cornell International Law Journal, 1995, Vol. 28, pp. 58-62. ------------------------------------------------------------------------------------------------- 7. Important as this letter is, we should not be content with it, nor with the language and negotiating history of Security Council resolutions 757 and 777 and General Assembly resolution 47/1, nor with the undisputed fact that no measures were adopted to affect the termination or suspension of SFRY membership - all of which point unmistakably to continued SFRY membership in the United Nations. We should, additionally, ask a basic question: was the SFRY a United Nations Member in the first place? The answer to that question is also clearly in the affirmative, for it would be recalled that the SFRY had been a founding Member of the United Nations and already in 1947 the Sixth Committee of the General Assembly had formulated the principle that: “As a general rule, it is in accordance with principle to assume that a State which is a Member of the United Nations does not cease to be a Member from the mere fact that its constitution or frontiers have been modified, and to consider the rights and obligations which that State possesses as a Member of the United Nations as ceasing to exist only with its extinction as a legal person internationally recognized as such.” [FN7] ------------------------------------------------------------------------------------------------- [FN7] United Nations, Official Records of the General Assembly, Sixth Committee, Second Session, 43rd meeting, 1947, pp. 38-39. ------------------------------------------------------------------------------------------------- 8. At no time was the SFRY extinguished as a legal person internationally recognized as such. There were always States that continued to recognize the FRY as the continuator of the SFRY though there were others who took the opposite view. This state of affairs is typical of the relativism inherent in the constitutive theory of recognition and in itself prevents the drawing of any firm inferences. The only way to ascertain whether there was continuity or extinction of the SFRY is by reference to the actual or legal elements surrounding the succession of States which can be measured against an objective yardstick. It is indisputable, for example, that the capital of the SFRY was still within the borders of the FRY and that Serbia (an ancient kingdom) and Montenegro formed the historic nucleus of Yugoslavia and continued even after the loss of the four Republics - which happened at different times - to have 40 per cent of the land mass of the former Yugoslavia and 45 per cent of its [p245] population. [FN8] Moreover, it is also factually indisputable that in the Forty-sixth Session of the General Assembly, the SFRY, even after Slovenia, Croatia and Macedonia had broken away, was still considered a United Nations Member and the credentials of its representatives were not challenged. Of equal importance is that even in the Forty-seventh Session of the General Assembly no challenge to the credentials of its representatives was made. [FN9] In other words, the rump Yugoslavia, later the FRY, was treated as a continuator of the SFRY. There was nothing out of the ordinary in this. It was supported by the classic models of the succession of India and Pakistan from the Commonwealth of India; then later the Pakistan/Bangladesh succession; and the dissolution of the Union of the Soviet Socialist Republics; and it accorded with the principle adopted by the Sixth Committee referred to above. Moreover, the nature of Security Council resolutions 757 and 777 and General Assembly resolution 47/1, appreciated contextually, lends strong credence to the claim that their main aim was in the nature of sanctions. It should not be overlooked in this respect that news of the atrocities committed in Croatia and Bosnia were being carried world-wide to a shocked international public opinion and blame for the most part was being laid on the doorstep of the government of Mr. Miloševic and hence sanctions were started even when the SFRY was still in existence. [FN10] ------------------------------------------------------------------------------------------------- [FN8] See Michael Scharf, op. cit., p. 53. [FN9] Yehuda Blum, “UN Membership of the ‘New’ Yugoslavia: Continuity or Break”, American Journal of International Law, 1992, Vol. 86, p. 830. [FN10] Security Council resolution 713 (1991), 25 September 1991, para. 6. ------------------------------------------------------------------------------------------------- 9. Whatever may have been the case with regard to the intended or unintended effects of those resolutions, the decisive fact is that once SFRY membership in the United Nations had been ascertained and that this membership had survived the breakaway of Croatia, Slovenia and Macedonia which was indisputably the case in the Forty-sixth Session of the General Assembly, and of Bosnia which was similarly the case in the Forty-seventh Session of the General Assembly, the Security Council and General Assembly resolutions adopted did not, and more importantly, could not, have terminated or suspended that existing membership. Only the SFRY, of its own volition, could give up its original membership and it was naturally not inclined to do so, given not only the strength of its claim, but additionally, because, had it abandoned its membership, it would have put itself at the mercy of the “peace-loving formula” (United Nations Charter, Art. 4, para. 1) which, contextually, it had ample reason to believe some, including some in the Security Council, would not easily apply to it. As already stated, the FRY clung to its membership [p246] and suffered only the sanction of non-participation in the work of the General Assembly and the Economic and Social Council (ECOSOC) where a similar resolution was adopted. [FN11] ------------------------------------------------------------------------------------------------- [FN11] Security Council resolution 821 (1993), 28 April 1993, para. 1. ------------------------------------------------------------------------------------------------- Indeed there is post-Dayton evidence to suggest that had the FRY persisted in its claim as a continuator, it would have triumphed. For we can glean, for example, acceptance of that claim from the treaties that it entered into with Croatia, Bosnia and Macedonia. [FN12] The acceptance by the successor States of that claim is especially significant given their closeness to the process of succession. This thesis, however, could not be fully tested because the nascent normalcy was shattered by Mr. Miloševic’s attack on Kosovo in 1999 resulting in disastrous consequences for the FRY and, not least, for Mr. Miloševic as evidenced by his fall from power. A new Government replaced him and decided to embark on a new course. It applied to the United Nations as a new Member and was accepted as such in 2000, thereby abandoning of its own will the claim of continuity. From that moment on and only from that moment on it became a successor of the SFRY and not its continuator. ------------------------------------------------------------------------------------------------- [FN12] See, e.g., Article IV of the Joint Declaration of the President of the Republic of Serbia and the President of the Presidency of Bosnia and Herzegovina, which stipulates that “Bosnia and Herzegovina accepts the State continuity of the Federal Republic of Yugoslavia”, United Nations doc. A/51/461-S/1996/830 (1996), 7 October 1996. ------------------------------------------------------------------------------------------------- Curiously, the fact of FRY admission to the United Nations in 2000 was viewed as retroactively clarifying the Respondent’s hitherto amorphous status vis-à-vis the United Nations in favour of the conclusion that in the period 1992 to 2000 it was not a United Nations Member. It was also argued that the FRY’s admission “revealed” a lack of United Nations membership and toppled the assumption which was based on the existence of an amorphous situation, making it now impossible to ignore the question of the FRY’s access to the Court. Nothing could be more debatable. The logic of the argument seems at first glance to be straightforward: admission as a new Member means that the FRY was not a Member before the date of admission. But here we are not dealing with a State that had never been a United Nations Member. Rather we are faced with a State that assiduously maintained it was the continuator of an original United Nations Member and which had to relinquish a strong claim to continuity and apply as a new Member in the sense of a successor State. The distinction therefore is not between a “new Member” and a “non-Member”, but between a “new Member” and an “old Member”. Seen from this angle, the act of admission does not lead to the conclusion [p247] that the FRY was not a United Nations Member. Rather, the act of admission confirms that it had been an old member by way of continuity until it abandoned that claim and took on the status of a successor. Therefore the FRY was a continuator in 1992 to 2000 and a successor after its admission in 2000. Furthermore, to argue that the SFRY was extinguished in 1992 and that the FRY was a successor of the SFRY in 2000 without first being its continuator creates a legal void in the intervening period of eight years, which is absurd. 12. In the post-2000 period, the claim that the FRY was not a United Nations Member and therefore lacked access to the Court became pivotal in jurisdictional rounds and ploys aimed at undoing the Court’s clearly-established jurisdiction in its 1996 Judgment on Preliminary Objections (in paragraph 34 of that Judgment, the Court indicated that it had jurisdiction rationae personae, rationae materiae and rationae temporis). Denying that the Respondent had been a United Nations Member in 1992 to 2000 was a necessary first step to the argument that it lacked “access” to the Court via that membership under Article 35, paragraph 1, of the Statute. Furthermore, this access was said to be independent from jurisdiction, even jurisdiction rationae personae, and, unlike it, was objective and could not be established simply because there was consent to jurisdiction but should always be ascertained, if need be, by the Court acting propio motu. Thus, the modest idea of access (concerned primarily with granting access to States and denying it to non-States and ensuring equality for Members and non-Members) was elevated to heights that its drafters never imagined. In its latest incarnation, the concept of access could circumvent the principle of res judicata by either overturning it or by being outside the scope of the res judicata of the Court’s jurisdiction in the 1996 Judgment on Preliminary Objections (CR 2006/45, 9 May 2006, pp. 10-18.). I shall revert to these issues of jurisdiction and access to propound the view that differences between them are greatly exaggerated. I shall first, however, give an overall description of the major developments that took place after 2000. In the Respondent’s Application for revision of the Judgment of 11 July 1996 and its Initiative, both submitted to the Court in 2001, and the Court’s 2004 Legality of Use of Force Judgments, the question of the FRY’s access to the Court (including access under Article 35, paragraph 2, of the Statute) played a central role in jurisdictional arguments. Already in 2004, acting counsel for Belgium described how the Legality of Use of Force cases were being used by Serbia as “effectively . . . the fifth round in the jurisdictional contest of the Genocide Convention case which stretches back to 1993” (Legality of Use of Force (Serbia and Montenegro v. Belgium), CR 2004/15, para. 10). When one adds to that two attempts by Serbian members of the Bosnian Presidium to discontinue the Genocide Convention case, and the latest round of jurisdictional arguments in 2006, that jurisdictional contest [p248] reached eight rounds - which is unprecedented in the history of this Court or of its Predecessor. 1. The Application for Revision Judgment (2003) and the Legality of Use of Force Judgments (2004) 13. In its Application for revision, the Respondent had not based its request strictly on new facts as required by Article 61 of the Statute but on the legal consequences relating to its United Nations membership flowing from facts already known to the parties at the time of the 1996 Judgment. This being the case, the Court dismissed the request because the alleged new facts were not new. There was no need, therefore, for the Court to decide on the question of the Respondent’s United Nations membership. The Court stated that the General Assembly resolution on admission: “cannot have changed retroactively the sui generis position which the FRY found itself in vis-à-vis the United Nations over the period 1992-2000 or its position in relation to the Statute of the Court and the Genocide Convention” (Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment, I.C.J. Reports 2003, p. 31, para 71). 14. By contrast, in the Legality of Use of Force cases, the caution that had for better or worse always characterized the Court’s approach to the issue of Yugoslavia’s membership was thrown to the wind. Free from the constraints of res judicata, the majority found in those closely related cases an escape route which was used notwithstanding the impact that this would have on the present case. As stated in Judge Higgins’s separate opinion: “Its relevance can lie, and only lie, in another pending case.” (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 487, para. 18, separate opinion of Judge Higgins.) 15. Be that as it may, what interests us more for the present is the [p249] reasoning followed in the Legality of Use of Force Judgments. The Court started by noting - correctly - that the aforementioned passage in the Application for Revision Judgment did not imply any decision on the status of the FRY within the United Nations before 2000. The Court went on to say that the fact of admission brought to an end the sui generis position of FRY membership - which is also correct for the future. But the Court went further and sought to derive new legal consequences - for the past - namely lack of United Nations membership between 1992 and 2000 from the fact of the FRY’s admission whereas in the 2003 Application for Revision Judgment, the Court had found it impossible to derive, from the same fact, any consequences for the past. [FN13] The only basis for doing so was the observation that the term sui generis is a descriptive and not a prescriptive term. But this is hardly evidence or argument for nothing turns on that observation. As the joint declaration in the Legality of Use of Force cases observes, the proposition that the FRY’s United Nations membership was retroactively clarified is “far from self-evident and we cannot trace the steps of the reasoning” (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 334, para. 12, joint declaration of Vice-President Ranjeva, Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby). This, with great respect, is one of the reasons why the Court’s logic in the Legality of Use of Force Judgments does not perhaps represent the zenith of legal reasoning. This is so in addition of course to its negative and regrettable impact on the broad consistency of the Court’s jurisprudence. ------------------------------------------------------------------------------------------------- [FN13] See Maria Chiara Vitucci, “Has Pandora’s Box Been Closed ?: The Decision on the Legality of Use of Force Cases in Relation to the Status of the Federal Republic of Yugoslavia (Serbia and Montenegro) within the United Nations”, Leiden Journal of International Law, 2006, Vol. 19, p. 114. ------------------------------------------------------------------------------------------------- 16. Our present Judgment considers the 2003 Application for Revision Judgment and the 2004 Legality of Use of Force Judgments in paragraphs 105-113 under the heading “Relevant Past Decisions of the Court”, but fails to address the contradiction between its inability to draw findings as to FRY United Nations membership in its 2003 Judgment, and its drawing conclusions from the same facts in its 2004 Judgment. 17. Apart from access via United Nations membership (Statute, Art. 35, para. 1) non-Members may, as is well known, have access to the [p250] Court under Article 35, paragraph 2. The crucial question in the second route is whether the term “treaties in force” is to be interpreted to mean those treaties in force at the time of the institution of proceedings (the liberal interpretation) or those that were already in force when the ICJ Statute itself had come into force (the narrow interpretation). 18. It will be recalled that, in its Order of 8 April 1993, the Court opted for the liberal interpretation. It did so expressly in paragraph 19 of that Order. Indeed, given that it did not find the need to pronounce definitively on FRY membership in the United Nations, the liberal interpretation of Article 35, paragraph 2, of the Statute, was the sole or main ground for its provisional jurisdiction. Though not definitive, this finding carries considerable weight and should not have been lightly reversed. Moreover, this assumption was, by necessary logic, at the heart of the Court’s finding in the 1996 Judgment on Preliminary Objections that it had jurisdiction. Yet the 2004 Legality of Use of Force Judgments did not hesitate to unnecessarily reverse it. The same seven judges appending a joint declaration to that Judgment felt it “astonishing that the Court found it necessary to rule on the scope of Article 35, paragraph 2, whereas the Applicant did not invoke this text” (Legality of Use of Force (Serbia and Montenegro v. Belgium) Preliminary Objections, Judgment, I.C.J. Reports 2004, p.333, para. 11, joint declaration of Vice-President Ranjeva, Judges Guillaume, Higgins, Kooiijmans, Al-Khasawneh, Buergenthal and Elaraby). 19. But beyond this, the reasoning followed by the Court in the 2004 Legality of Use of Force Judgments leads to the collapse of the unity of purpose of Articles 35, 36 and 37 of the Statute - for in Articles 35 and 36 the term “treaties in force” indisputably means in force at the time of the institution of proceedings. No justification for such a result is offered. 20. The Court’s conclusion in the Legality of Use of Force Judgment is based mainly on the travaux préparatoires of Article 35, paragraph 2, of the Statute of the Permanent Court, its own Statute’s travaux préparatoires yielding no firm conclusions. All that need be said in this regard is that the conclusion of the Court is at best possible but not conclusive. 21. Moreover, it is disconcerting that whilst the Court was more than ready to delve into the travaux préparatoires of a bygone era and draw conclusions by analogy (though such analogy is open to doubts given that there were no general peace treaties after the Second World War), there is no reference to the much more relevant fact that the FRY, [p251] whether or not a Member of the United Nations, was a party to the Genocide Convention. The FRY’s 27 April 1992 declaration accepting the SFRY treaty obligations amounts to its acceptance of the Genocide Convention obligations. In this respect, reference should be made to the fact that the United Nations Office of Legal Affairs considers that General Assembly resolution 43/138 (1988) amounts to a general invitation to non-Members to become a party to the Genocide Convention. [FN14] The Democratic People’s Republic of Korea’s instrument of accession to the Genocide Convention was accepted on 31 January 1989 (more than two years before it became a United Nations Member) on this basis. No special invitation to become a party to the Genocide Convention was addressed to the DPRK by the General Assembly. In other words, given the FRY’s express acceptance of the obligations set forth in the Genocide Convention in 1992, neither its purported non-Member status nor the failure of the General Assembly to specifically invite the FRY to become a party acts as a bar to finding that the FRY was a party to the Genocide Convention at the time it filed the Application. ------------------------------------------------------------------------------------------------- [FN14] Paragraph 5 of General Assembly resolution 43/138 (8 December 1988) urges those States which have not yet become parties to the Convention to ratify it or accede thereto without further delay. ------------------------------------------------------------------------------------------------- 2. The Initiative 22. The Court’s Statute admits of only two ways for States unhappy with its judgments to deal with them: revision under Article 61 with all the attendant limitations and conditions wisely designed to safeguard the stability and integrity of judgments and/or a request for interpretation under Article 60 which can only explain but not change that which the Court has already settled with binding force. 23. The Respondent sought revision unsuccessfully in 2003 and could have sought interpretation - indeed the nature of its claims regarding the meaning of jurisdiction and access would lend themselves to resolution through such a request. Instead, simultaneously with its 2001 Application for revision, the Respondent presented an “Initiative” to the Court to reconsider its jurisdiction ex officio. Curiously, the reasoning and contents of the Initiative were virtually identical with the Application for revision. While the Court rejected the Application for revision on 3 February 2003, the same Court, some four months later, invited the Respondent to present new jurisdictional arguments at the merits phase. (Letter from the Registrar to the Respondent dated 12 June 2003.) This, notwithstanding that the Court itself had some seven years earlier satisfied itself that: “having established its jurisdiction under Article IX of the [p252] Genocide Convention. . . it may now proceed to consider the merits of the case on that basis” (Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 622, para. 46). 24. It is plain that the “Initiative” was irregular and had no place under the Statute of the Court, not because the Court could not make mistakes or refuse to rectify them, but because its Statute struck the right compromise between the fallibility of men and courts on the one hand and the need to safeguard the reasonable and legitimate expectations regarding the integrity and stability of its judgments on the other. That compromise was struck, as already mentioned, by allowing for the possibility of seeking interpretation and/or revision. It is of course true that “[t]he Court must however always be satisfied that it has jurisdiction. . .” (Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 52, para. 13). But, that satisfaction, no doubt motivated by a need to be meticulous in dispensing justice, must be achieved in an orderly and timely manner. Once the Court has satisfied itself that it has jurisdiction, it should move on to consider the merits - which was exactly what the Court said in 1996. 25. The serious misgivings I have, in principle, about the irregular “Initiative” are reinforced by the fact that there is nothing in the Court’s jurisprudence to support the proposition that jurisdictional issues that have been decided with the force of res judicata may be reopened. Thus, in the ICAO Council case, there was no separate preliminary objections phase, nor any question of “re-examining” what had already been decided. In that case, Pakistan simply raised an objection very late in the oral proceedings after it had exhausted its ability to raise preliminary objections. The decision on jurisdiction, which was made under the Court’s general powers, did not amount to re-examining jurisdiction because it had never been previously examined. 26. Similarly, in another case cited by the proponents of the objective access theory: South West Africa (Ethiopia v. South Africa), Second Phase, the Court found that the standing of the Applicant before the Court itself, i.e., the locus standi ratione personae, which had been the subject of the Court’s decision in 1962 could not be reopened, but that the Applicant’s standing regarding the subject-matter of the case and therefore the merits could be reopened. In other words the Court avoided reopening what had been decided. [FN15] ------------------------------------------------------------------------------------------------- [FN15] For an analysis of other cases supporting the proposition that decided jurisdictional matters may not be reopened see in particular paragraphs 127-128 of the Judgment. ------------------------------------------------------------------------------------------------- 27. This conclusion is not weakened by the claim, in fact made by the [p253] Respondent, that it was making a new jurisdictional argument. One would expect any respondent in the same position to claim that it was not repeating old arguments. Again, if those new arguments are about crucial unknown facts, the Court’s Statute designates a procedure to deal with them; if there is obscurity in the Judgment, interpretation under Article 60 of the Court’s Statute can cure it. 28. This being the case, it was curious and, with great respect to my colleagues, regrettable, that the Court should have acceded - in an unprecedented move - to the Respondent’s irregular request to present additional jurisdictional arguments at the merits phase. By doing so, the Court contributed to a further delay in justice regarding something so shocking to decent people as allegations of genocide. Moreover, the misconceived idea of allowing the Respondent to make new jurisdictional arguments at the merits phase, after jurisdiction had been decided with the force of res judicata has, together with its 2004 Legality of Use of Force Judgments, contributed to confusion and contradictions between its different cases and indeed the different phases in the present case with the result that, with the contagion spreading, and those contradictions being quoted back at the Court, the only thing the present Judgment could do was to take refuge in the formalism of res judicata, paragraphs 129-138 being a case in point. 29. Before ending this part on jurisdiction, I should say a few words about the concept of “access”. I believe that the most important application of this concept is with regard to the lack of capacity of non-State actors and unrecognized entities to appear before the Court. This is of course to be expected in an international community made up of States. The debates in the Security Council and the General Assembly regarding non-Member States becoming parties to the Court’s Statute centred on the requirement that the relevant entity be a State [FN16] - and not on the conditions for participation in the Statute. Apart from the need to ensure equality for the parties before the Court, I fail to see that the distinction between access and jurisdiction entails any significant consequences. Thus, a court is required to ascertain its jurisdiction independently of the consent of the parties, for example when one party does not appear. Moreover, it is not insignificant that while the Respondent was arguing in terms of lack of access, its submission was made in terms of lack of jurisdiction. A contextual approach based on common sense rather than dialectic reasoning should be the guiding criterion in these matters. [p254] ------------------------------------------------------------------------------------------------- [FN16] Shabtai Rosenne, The Law and Practice of the International Court, 1920-2005, Vol. II, p. 599. ------------------------------------------------------------------------------------------------- II. MERITS 30. I am of the opinion that the involvement or implication of the FRY in the genocide that took place in Bosnia and Herzegovina in the 1990s was both more serious in nature and more extensive in territorial scope than the mere failure to prevent genocide in Srebrenica conveys. 31. This implies that the charge that genocide took place also in other parts of Bosnia and Herzegovina and that the FRY was responsible not only for its failure to prevent genocide but for being actively involved in it either as a principal or alternatively as an accomplice or by way of conspiracy or incitement would in all probability have been proven had the Court not adopted the methodology discussed below. 32. It implies also that the fact of FRY responsibility for genocide in Srebrenica was proven to a satisfactory standard. 33. In stating this, I am not oblivious to the fact that the ICTY has not, so far, established that the crime of genocide or the other ancillary crimes enumerated in the Genocide Convention have taken place in Bosnia and Herzegovina (apart from Srebrenica) and consequently that genocide is more difficult, though not impossible, to prove. Neither am I unaware that additional difficulties in this regard stem from the elusiveness of the elements of genocidal intent dolus specialis and from the need to apply high standards of proof given the gravity of the charge of genocide. 34. I believe, however, that the Court could have found genocide and FRY responsibility therefor had it followed a different methodology without of course in any way detracting from the high standard of proof or the rigour of its reasoning. 35. In the first place, the Court was alerted by the Applicant to the existence of “redacted” sections of documents of the Supreme Defence Council of the Respondent. Regrettably, the Court failed to act although, under Article 49 of its Statute, it has the power to do so. It is a reasonable expectation that those documents would have shed light on the central questions of intent and attributability. The reasoning given by the Court in paragraph 206 of the Judgment, “[o]n this matter, the Court observes that the Applicant has extensive documentation and other evidence available to it, especially from the readily accessible ICTY records. . .”, is worse than its failure to act. To add to this, at the end of paragraph 206, the Court states: “Although the Court has not agreed to either of the Applicant’s requests to be provided with unedited copies of the documents,it [p255] has not failed to note the Applicant’s suggestion that the Court may be free to draw its own conclusions.” (Emphasis added.) It should be observed that Article 49 of the Statute provides that “formal note should be taken of any refusal” and not of the Applicant’s suggestion. In addition to this completely unbalanced statement that does not meet the requirement of Article 49, no conclusions whatsoever were drawn from noting the Respondent’s refusal to divulge the contents of the unedited documents. It would normally be expected that the consequences of the note taken by the Court would be to shift the onus probandi or to allow a more liberal recourse to inference as the Court’s past practice and considerations of common sense and fairness would all demand. This was expressed very clearly by the Court in its Corfu Channel Judgment: “On the other hand, the fact of this exclusive territorial control exercised by a State within its frontiers has a bearing upon the methods of proof available to establish the knowledge of that State as to such events. By reason of this exclusive control, the other State, the victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility. Such a State should be allowed a more liberal recourse to inferences of fact and circumstantial evidence. This indirect evidence is admitted in all systems of law, and its use is recognized by international decisions. It must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion.” (Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 18.) 36. Secondly, the Court applied the effective-control test to a situation different from that presented in the Nicaragua case. In the present case, there was a unity of goals, unity of ethnicity and a common ideology, such that effective control over non-State actors would not be necessary. In applying the effective control test, the Court followed Article 8 of the International Law Commission Articles on State Responsibility (Judgment, paras. 402-407). 37. However, with great respect to the majority, a strong case can be made for the proposition that the test of control is a variable one. It would be recalled that some ILC members drew attention to the fact of there being varying degrees of sufficient control required in specific legal contexts. [FN17] The ICTY Appeals Chamber decision in the Tadic case, as [p256] reaffirmed in the Celebici case, takes this approach. In the Celebici case, the Appeals Chamber held that: “the ‘overall control’ test could thus be fulfilled even if the armed forces acting on behalf of the ‘controlling state’ had autonomous choices of means and tactics although participating in a common strategy along with the controlling State” (Prosecutor v. Delalic, ICTY Appeals Chamber, 20 February 2001, para. 47). ------------------------------------------------------------------------------------------------- [FN17] Report of the International Law Commission on the Work of its Fiftieth Session, United Nations, Official Records of the General Assembly, Fifty-third Session, Supplement No. 10, United Nations doc. A/53/10 and Corr.1, para. 395. ------------------------------------------------------------------------------------------------- 38. In rejecting the ICTY’s context-sensitive approach, the ILC Commentary to Article 8 does little more than note a distinction between the rules of attribution for the purposes of State responsibility on the one hand, and the rules of international humanitarian law for the purposes of individual criminal responsibility on the other. [FN18] However, it should be recalled that the Appeals Chamber in Tadic had in fact framed the question as one of State responsibility, in particular whether the FRY was responsible for the acts of the VRS, and therefore considered itself to be applying the rules of attribution under international law (Tadic, ICTY Judgment, IT-94-1-A, 15 July 1999, para. 98). ------------------------------------------------------------------------------------------------- [FN18] J. Crawford, International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, 2002, p. 112. ------------------------------------------------------------------------------------------------- 39. Unfortunately, the Court’s rejection of the standard in the Tadic case fails to address the crucial issue raised therein - namely that different types of activities, particularly in the ever-evolving nature of armed conflict, may call for subtle variations in the rules of attribution. In the Nicaragua case, the Court noted that the United States and the Contras shared the same objectives - namely the overthrowing of the Nicaraguan Government. These objectives, however, were achievable without the commission of war crimes or crimes against humanity. The Contras could indeed have limited themselves to military targets in the accomplishment of their objectives. As such, in order to attribute crimes against humanity in furtherance of the common objective, the Court held that the crimes themselves should be the object of control. When, however, the shared objective is the commission of international crimes, to require both control over the non-State actors and the specific operations in the context of which international crimes were committed is too high a threshold. The inherent danger in such an approach is that it gives States the opportunity to carry out criminal policies through non-state actors or surrogates without incurring direct responsibility therefore. The statement in paragraph 406 of the Judgment to the effect that the “‘overall control’ test is unsuitable, for it stretches too far, almost to breaking point, the connection which must exist between the conduct of a State’s organs and its international responsibility” is, with respect, singularly unconvincing because it fails to consider that such a link has to account [p257] for situations in which there is a common criminal purpose. It is also far from self-evident that the overall control test is always not proximate enough to trigger State responsibility. 40. Thirdly, the Court has refused to infer genocidal intent from the consistent pattern of conduct in Bosnia and Herzegovina. In its reasoning, the Court relies heavily on several arguments, each of which is inadequate for the purpose, and contradictory to the consistent jurisprudence of the international criminal tribunals. 41. The Court first considers whether the Strategic Goals of the Serbian People in Bosnia and Herzegovina [FN19] evidence genocidal intent, but concludes that the goals “were capable of being achieved by the displacement of the population and by territory being acquired” (Judgment, para. 372). The Court further notes that the motive of creating a Greater Serbia “did not necessarily require the destruction of the Bosnian Muslims and other communities, but their expulsion” (ibid.). The Court essentially ignores the facts and substitutes its own assessment of how the Bosnian Serbs could have hypothetically best achieved their macabre Strategic Goals. The Applicant is not asking the Court to evaluate whether the Bosnian Serbs were efficient in achieving their objectives. The Applicant is asking the Court to look at the pattern of conduct and draw the logically necessary inferences. The jurisprudence of the interna-tional criminal tribunals on this point is less amenable to artificial distinctions between the intent relevant to genocide and that relevant to ethnic cleansing than the Court. The Appeal Chamber in Krstic has clearly held that the pattern of conduct known as ethnic cleansing may be relied on as evidence of the mens rea of genocide. [FN20] Coupled with population transfers, what other inference is there to draw from the overwhelming evidence of massive killings systematically targeting the Bosnian [p258] Muslims than genocidal intent? If the only objective was to move the Muslim population, and the Court is willing to assume that the Bosnian Serbs did only that which is strictly necessary in order to achieve this objective, then what to make of the mass murder? If the Court cannot ignore that population transfer was one way of achieving the Strategic Goals, then why should it ignore that, in fact, the Bosnian Serbs used this method as one of many - including massive killings of members of the protected group. ------------------------------------------------------------------------------------------------- [FN19] The Strategic Goals were as follows: (1) separation as a state from the other two ethnic communities; (2) a corridor between Semberija and Krajina; (3) the establishment of a corridor in the Drina River valley, i.e., the elimination of the border between Serbian states; (4) the establishment of a border on the Una and Neretva rivers; and (5) the division of the city of Sarajevo into a Serbian part and a Muslim part, and the establishment of effective State authorities within each part (Judgment, para. 371). [FN20] Krstic, IT-98-33-A, para. 34. On this basis, the Appeal Chamber held that “[s]ome other members of the VRS Main Staff harboured the same intent to carry out forcible displacement, but viewed this displacement as a step in the accomplishment of their genocidal objective. [To some other members of the VRS Main Staff], the forcible displacement was a means of advancing the genocidal plan.” (Ibid., para. 133.) See also Krajisnik, IT-00-39-T, Judgment of 27 September 2006, para. 854. [p258] ------------------------------------------------------------------------------------------------- 42. The second argument the Court relies on bears on the conduct of the ICTY’s Prosecutor and the Tribunal’s jurisprudence on genocide. The Court rejects the Applicant’s argument that the pattern of atrocities committed over many communities demonstrates the necessary intent because it “is not consistent with the findings of the ICTY relating to genocide or with the actions of the Prosecutor, including decisions not to charge genocide offences in possibly relevant indictments, and to enter into plea agreements” (Judgment, para. 374). That the ICTY has not found genocide based on patterns of conduct in the whole of Bosnia is of course not in the least surprising. The Tribunal only has jurisdiction to judge the individual criminal liability of particular persons accused before it, and the relevant evidence will therefore be limited to the sphere of operations of the accused. In addition, prosecutorial conduct is often based on expediency and therefore no conclusions can be drawn from the prosecution’s acceptance of a plea bargain or failure to charge a particular person with genocide. While the Court is intent on adopting the burden of proof relevant to criminal trials, it is not willing to recognize that there is a fundamental distinction between a single person’s criminal trial and a case involving State responsibility for genocide. The Court can look at patterns of conduct throughout Bosnia because it is not constrained by the sphere of operations of any particular accused - and it should have done so. 43. The consistent jurisprudence of the international criminal tribunals is clear on the permissibility (and even the necessity) of relying on facts and circumstances from which to infer genocidal intent. The ICTY Appeal Chamber held that proof of specific genocidal intent “may, in the absence of direct explicit evidence, be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic [p259] targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts”. [FN21] ------------------------------------------------------------------------------------------------- [FN21] Jelisic, IT-95-10-A, Judgment of 5 July 2001, para. 47; Jelisic, IT-95-10, Judgment of 14 December 1999, para. 73. ------------------------------------------------------------------------------------------------- 44. Relying on the decision in Jelisic, the Appeal Chamber in Krstic also held that “[w]hen direct evidence of genocidal intent is absent, the intent may still be inferred from the factual circumstances of the crime”. [FN22] ------------------------------------------------------------------------------------------------- [FN22] Krstic, supra footnote 20, para. 34. ------------------------------------------------------------------------------------------------- 45. The ICTR has also consistently relied on inference as a means of establishing the requisite genocidal mens rea. In Rutaganda, the ICTR Appeal Chamber affirmed the Trial Chamber’s approach to inferring genocidal intent: “The Chamber considers that it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act.” [FN23] ------------------------------------------------------------------------------------------------- [FN23] Akayesu, ICTR-96-4, Judgment of 2 September 1998, para. 523, and Georges Rutaganda, ICTR-96-3, Judgment of 6 December 1999, para. 398, both as affirmed in Georges Rutaganda, ICTR-96-3-A, Judgment of 26 May 2003, para. 528. ------------------------------------------------------------------------------------------------- 46. The ICTR Appeal Chamber also held that, while making anti-Tutsi utterances or being affiliated to an extremist anti-Tutsi group is not a sine qua non for establishing the dolus specialis of genocide, establishing such a fact may, nonetheless, facilitate proof of specific intent. [FN24] In Musema, the ICTR Appeal Chamber held that “in practice, intent can be, on a case-by-case basis, inferred from the material evidence submitted to the Chamber, including the evidence which demonstrates a consistent pattern of conduct by the Accused”. [FN25] Finally, in Kayishema (the reasoning of which the Appeal Chamber affirmed), [FN26] the ICTR held that “[t]he perpetrator’s actions, including circumstantial evidence, however may provide sufficient evidence of intent. . . The Chamber finds that the intent can be inferred either from words or deeds and may [p260] be demonstrated by a pattern of purposeful action. In particular, the Chamber considers evidence such as the physical targeting of the group or their property; the use of derogatory language toward members of the targeted group; the weapons employed and the extent of bodily injury; the methodical way of planning, the systematic manner of killing. Furthermore, the number of victims from the group is also important.” [FN27] ------------------------------------------------------------------------------------------------- [FN24] Georges Rutaganda, ICTR-96-3-A, Judgment of 26 May 2003, para. 525. [FN25] Musema, ICTR-96-13-A, Judgment of 27 January 2000, para. 167. [FN26] Kayishema, ICTR-95-1-A, Judgment of 1 June 2001, para. 148. [FN27] Kayishema, ICTR-95-1, Judgment of 21 May 1999, para. 93. ------------------------------------------------------------------------------------------------- 47. It is regrettable that the Court’s approach to proof of genocidal intent did not reflect more closely this relevant jurisprudence. 48. Fourthly, genocide is definitionally a complex crime in the sense that unlike homicide it takes time to achieve, requires repetitiveness, and is committed by many persons and organs acting in concert. As such, it cannot be appreciated in a disconnected manner. Unfortunately, there are instances in the Judgment where this happens, including on crucial issues such as FRY responsibility for the genocide at Srebrenica. 49. Belgrade’s knowledge of the more general operations in Srebrenica - those geared toward “taking the town” - is amply established. [FN28] In addition, Carl Bildt (European negotiator) met twice with President Miloševic and General Mladic together in the midst of the takeover of Srebrenica and the subsequent massacre. [FN29] As regards General Mladic, it is accepted that his promotion to the rank of Colonel General was handled in Belgrade, and the Respondent’s claim that this was no more than some administrative confirmation of a decision made in Pale is unconvincing. The Secretary-General’s report on the fall of Srebrenica relates that Mr. Bildt was joined in his meeting with President Miloševic on 14 July by General Mladic - which is the period during which the Court determined that the decision to eliminate physically the whole of the adult male population of the Muslim community of Srebrenica was taken (Judgment, para. 423). The Report also highlights that President Karadžic (President of the Republika Srpska) was unaware of the meetings between Mr. Bildt, President Miloševic and General Mladic. [FN30] [p261] ------------------------------------------------------------------------------------------------- [FN28] Netherlands Institute for War Documentation, Srebrenica - a ‘safe’ area. Reconstruction, background, consequences and analyses of the fall of the Safe Area, 10 April 2002, Chap. 7. [FN29] Report of the Secretary-General pursuant to General Assembly resolution 53/35, “The Fall of Srebrenica”, United Nations doc. A/54/549 (1999), p. 81, para. 372. [FN30] Ibid., p. 82, paras. 373-376. ------------------------------------------------------------------------------------------------- 50. Finally, in regard specifically to the massacres in Srebrenica, General Clark testified in Miloševic’s trial to the following conversation he had with the President of the FRY: “Well, all I can confirm, Your Honour, is the discussion that I had. I went to Miloševic and I asked him. I said, ‘If you have so much influence over these Serbs, how could you have allowed General Mladic to have killed all those people at Srebrenica?’ And he looked to me - at me. His expression was very grave. He paused before he answered, and he said, ‘Well, General Clark, I warned him not to do this, but he didn’t listen to me.’ And it was in the context of all of the publicity at the time about the Srebrenica massacre. Now, I did not use the word ‘massacre’, and I did not specifically use the word ‘civilian’, but the context of the conversation was extremely clear and timely at that point.” [FN31] ------------------------------------------------------------------------------------------------- [FN31] Prosecutor v. Miloševic, ICTY Judgment, No. IT-02-54, Transcript of 16 December 2003, pp. 30494-30495. ------------------------------------------------------------------------------------------------- 51. General Mladic’s decisive role in the Srebrenica genocide, the close relationship between General Mladic and President Miloševic, the influential part President Miloševic played in negotiations regarding Srebrenica (both before and after the genocide), and his own statements as set forth above, each taken alone, might not amount to proof of President Miloševic’s knowledge of the genocide set to unfold in Srebrenica. Taken together, these facts clearly establish that Belgrade was, if not fully integrated in, then fully aware of, the decision-making processes regarding Srebrenica, while the Republika Srpska itself was excluded. Even after the fact, negotiations following the fall of Srebrenica and the genocide committed there were held simultaneously with General Mladic and President Miloševic. [FN32] There can be no doubt that President Miloševic was fully appraised of General Mladic’s (and the Bosnian Serb army’s) activities in Srebrenica throughout the takeover and massacres. ------------------------------------------------------------------------------------------------- [FN32] Report of the Secretary-General pursuant to General Assembly resolution 53/35, “The Fall of Srebrenica”, United Nations doc. A/54/549 (1999), p. 85, para. 392. ------------------------------------------------------------------------------------------------- 52. An even more disturbing feature in the Court’s reasoning is evident in its treatment of the Serbian paramilitary units known as the “Scorpions” (Judgment, paras. 289, 389 and 395). 53. Thus, paragraph 389 of the Judgment considers two documents presented by the Applicant, in which there is reference to the “Scorpions” [p262] as “MUP of Serbia” and a “unit of Ministry of Interiors of Serbia”. The paragraph notes that the authenticity of the documents was disputed by the Respondent presumably because “they were copies of intercepts, but not originals”. But it is plain that if the Court insisted on original documents, it would never be able to render any judgments. Be this as it may, the other reason advanced to undermine the importance of these documents is that they are not addressed to Belgrade, the senders being “officials of the police forces of the Republika Srpska”. But this in itself does not deny their probative value. When an official of the Republika Srpska sends a telegram to his superior in which the Scorpions are described as “MUP of Serbia” or “a unit of Ministry of Interiors of Serbia”, there is no reason to doubt the veracity of this statement. 54. Consequently, we have here a case of a unit which had been incorporated into the forces of the Respondent - though the date for that incorporation is in dispute - yet the Court concludes that they are not to be treated as de jure organs of the Respondent in 1995, notwithstanding evidence that they were perceived to be such by the Republika Srpska officials. Equally surprising is the Court’s treatment of the statement by the Government of Serbia and Montenegro - after President Miloševic’s fall from power - to the effect that what happened in Srebrenica was not the work of Serbia, but of the ousted régime. This statement was in fact occasioned by the showing, on national and international television, of the shocking images of the brutal execution of six Muslim prisoners in Trnovo, near Srebrenica, by the Scorpions. The Court failed to take account of this closely connected fact in its appreciation of the status of the Scorpions. 55. Lastly, with regard to the Scorpions, the Court goes on in paragraph 389 to say: “Furthermore, the Court notes that in any event the act of an organ placed by a State at the disposal of another public authority by a state shall not be considered an act of that State if the organ was acting on behalf of the public authority at whose disposal it had been placed.” However, while the spirit of Article 6 of the ILC’s Articles on State Responsibility is faithfully reflected, it must be noted that on this important question of fact, there is no evidence that the Scorpions were placed at the disposal of another public authority. 56. Fifthly, the Court’s treatment of the statement by the Government of Serbia and Montenegro alluded to above leaves much to be desired. In view of the importance of this statement, it bears being recalled in full: [p263] “Those who committed the killings in Srebrenica, as well as those who ordered and organized that massacre represented neither Serbia nor Montenegro, but an undemocratic régime of terror and death, against whom the great majority of citizens of Serbia and Montenegro put up the strongest resistance. Our condemnation of crimes in Srebrenica does not end with the direct perpetrators. We demand the criminal responsibility of all who committed war crimes, organized them or ordered them, and not only in Srebrenica. Criminals must not be heroes. Any protection of the war criminals, for whatever reason, is also a crime.” 57. The Court has concluded that this statement was of a political nature and does not amount to an admission of Serbian responsibility for the massacres in Srebrenica. To support its refusal to take at face value the plain language of the Serbian Council of Ministers, the Court invokes its decisions in the Nuclear Tests and Frontier Dispute (Burkina Faso/ Republic of Mali) cases. These Judgments, however, are neutral in their support for the conclusions the Court draws in paragraph 378. In these Judgments the Court held that declarations made by way of unilateral acts, in particular by highly placed government officials, [FN33] can have binding legal consequences. In determining these consequences, the Court has consistently considered whether the language employed reveals a clear intention (Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 473, para. 47; see also Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections, Judgment, I.C.J. Reports 1961, pp. 31-32). And intention must be considered in the context in which the statements were made (the Court is not to presume that the statements were not made in vacuo)(Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 474, para. 52)), and in the general framework of international discourse. ------------------------------------------------------------------------------------------------- [FN33] In Nuclear Tests (New Zealand v. France), the Court specifically holds that “there can be no doubt, in view of [the French President’s] functions, that his public communications or statements, oral or written, as Head of State, are in international relations acts of the French State” (Judgment, I.C.J. Reports 1974, p. 474, para. 51). ------------------------------------------------------------------------------------------------- 58. Indeed, the opposite conclusion from that reached by the Court in paragraph 378 is supported by the cited jurisprudence. To the extent that the effect of a unilateral act depends on the intent behind it and the context within which it was made, one need only consider this: the Serbian Government at the time was attempting to distance itself - as a new and democratic régime - from the régime which had come before it, in light of the revelation of horrible crimes committed by paramilitary units (the [p264] Scorpions) on national Serbian and international television. The intent was to acknowledge the previous régime’s responsibility for those crimes, and to make a fresh start by distancing the new régime therefrom. A clearer intention to “admit” past wrongs cannot be had. 59. Of equal note is the Court’s failure to address its decisions in Nicaragua and Democratic Republic of the Congo v. Uganda - both of which were invoked in the Applicant’s pleadings on this subject (CR 2006/11, pp. 10-15 (Condorelli)). In Nicaragua, the Court considered what legal consequences could be drawn from the United States characterization of its conduct in Nicaragua as “self-defence”. In so doing, the Court had this to say: “statements of this kind, emanating from high-ranking official political figures, sometimes indeed of the highest rank, are of particular probative value when they acknowledge facts or conduct unfavourable to the State represented by the person who made them. They may then be construed as a form of admission.” (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p.41, para. 64; emphasis added.) “Among the legal effects which such declarations may have is that they may be regarded as evidence of the truth of facts, as evidence that such facts are attributable to the State the authorities of which are the authors of these declarations, and, to a lesser degree, as evidence for the legal qualification of these facts.” (Ibid., p. 43, para. 71; emphasis added.) 60. The Court’s reasoning in Nicaragua is highly relevant in its application to the statement made by the Serbian Council of Ministers. The Council of Ministers unambiguously admits that the previous Government of Serbia and Montenegro (internationally recognized and unquestionably acting on behalf of the Serbian State for the purposes of State responsibility) had “ordered and organized” the killings in Srebrenica. Given the continuity of State responsibility, despite the change in régime, this statement certainly acknowledge[s] facts or conduct unfavourable to the State making the statement, and on the basis of Nicaragua thereby amounts to a form of admission, or at the very least, evidence of the truth of the facts it asserts. This conclusion is in keeping with the Court’s recent decision in Democratic Republic of the Congo v. Uganda, in which the Court observed that it would “give particular attention to reliable evidence acknowledging facts or conduct unfavourable to the State represented by the person making them. . .” (Armed Activities on the Territory of the Congo (Democratic [p265] Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 201, para. 61.) 61. The Court’s lack of application of the jurisprudence it does invoke, and failure to invoke jurisprudence more directly on point is unfortunate. The Serbian Council of Ministers’ statement, taken in the context of the other evidence available to the Court, certainly amounts to an admission of the responsibility of President Miloševic’s régime for the massacres in Srebrenica, which the Court has determined amount to genocide. III. CONCLUSION 62. The Court has absolved Serbia from responsibility for genocide in Bosnia and Herzegovina -- save for responsibility for failure to prevent genocide in Srebrenica. It achieved this extraordinary result in the face of vast and compelling evidence to the contrary. This result was however a product of a combination of methods and techniques the Court adopted that could not but have led to this result. In the first place the Court refused to inform itself regarding the twin questions of intent and attributability, the most elusive points in proving the crime of genocide and engaging State responsibility for it. At the same time, the Court refused to translate its taking note of the refusal to divulge redacted materials into concrete steps regarding the onus and standard of proof, thereby putting the Applicant at a huge disadvantage. If this was not enough, it required in addition too high a threshold for control and one that did not accord with the facts of this case nor with the relevant jurisprudence of the ICTY. The Court likewise failed to appreciate the definitional complexity of the crime of genocide and the need for a comprehensive approach in appreciating closely related facts, the role of General Mladic and the Scorpions in Srebrenica being a prime example. Moreover, where certain facts did not fit the Court’s conclusions, they were dismissed with no justification, the statement of the new Government of Serbia being also a case in point. I am certain that as far as Srebrenica is concerned, FRY responsibility as a principal or as an accomplice is satisfied on the facts and in law. I am of the opinion also that with regard to other parts of Bosnia and Herzegovina, had the Court followed more appropriate methods for assessing the facts, there would have been, in all probability, positive findings as to Serbia’s international responsibility. (Signed) Awn Shawkat AL-KHASAWNEH. [p266] JOINT DISSENTING OPINION OF JUDGES RANJEVA, SHI AND KOROMA 1. In the Judgment the Court affirms its jurisdiction ratione personae based on the res judicata effect of the 1996 Judgment on Preliminary Objections and finds, by “necessary implication”, that: (1) [the Federal Republic of Yugoslavia (FRY, Serbia and Montenegro and now Serbia)] “was bound by the provisions of the Genocide Convention on the date of the filing of the Application”, and (2) “on the basis of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, [the Court] has jurisdiction to adjudicate upon the dispute”. 2. We view these findings by “necessary implication” with serious misgivings, both in terms of the Statute of the Court and under international law, and hereby express our joint opinion. In doing so, we would like to point out that our position is purely a legal one, not involving any political [p267] or moral judgment in respect of the merits of the case. However, we hold firmly to the view that the Judgment, seeking to justify the Court’s affirmation of its jurisdiction on the basis of res judicata, largely sidesteps two central and related questions which are before the Court and which have a bearing on the existence or non-existence of its jurisdiction at the time the Application was filed in this case: namely, whether or not Serbia and Montenegro (the Respondent) was a United Nations Member and, secondly, whether the Respondent was a party to and/or bound by the Genocide Convention. Under the Charter of the United Nations and the Statute of the Court, membership of the United Nations is one of the ways in which a State is granted access to the Court, and by which the Court, pursuant to Article 35 of its Statute, can exercise jurisdiction ratione personae of that State. Membership of the United Nations also entitles a State to become a party to the Genocide Convention pursuant to Article XI thereof. 3. For the Court to affirm its jurisdiction ratione personae based on res judicata, it must take into consideration the relevant provisions of the Statute as well as the Parties’ submissions to the Court. In our judgment, the Court’s reliance in this case on res judicata to determine whether the Respondent had access to the Court at the time the Application was filed is untenable as a matter of law. In this regard, we would recall that whether a party has access to the Court is a matter of both constitutional and statutory requirements, whereas jurisdiction is based on consent. Moreover, in relying on res judicata as a basis of its jurisdiction ratione personae, the Judgment implies that the issue of access was considered and decided, but the issue of access was not even addressed, let alone decided, in either the reasoning or the dispositif of the 1996 Judgment. The issue was neither raised at any time by any of the Parties to the pro-ceedings nor discussed directly or indirectly in the text of the 1996 Judgment. In other words, the Court cannot refuse in its Judgment to address this constitutional and statutory requirement, which is one of the substantive submissions of the Parties at this stage, by making a finding based on res judicata because res judicata cannot extend to an issue which has not been considered, let alone decided, by the Court. Simply put, res judicata applies to a matter that has been adjudicated and decided. A matter that the Court has not decided cannot be qualified as res judicata. There is nothing in the 1996 Judgment indicating that the Court had definitively ruled on that issue in such a way as to confer upon it the authority of res judicata. An issue is not precluded by the doctrine of res judicata just because the Court says it is. The question before the Court is simply a factual one: judicially ascertaining whether the issue is the same as one earlier decided. When the Court makes such a crucial finding, it must set out its reasons; as Article 56 of the Statute of the Court requires, “[t[he judgment shall state the reasons on which it is based”. This provision requires the Court to state the legal principles on which it bases a finding, and how it understood and applied the relevant principles and provisions of the law. The 1996 Judgment states neither [p268] the legal principles on which the issue of access was decided nor how those principles were applied. 4. As is to be recalled, the jurisprudence of the Court shows that it has always treated res judicata in the context of its Statute and the submissions of the parties. It applies where there is an identity of parties, identity of cause, and identity of subject-matter in between the earlier and subsequent proceedings in the same case. Res judicata is not an absolute principle and does not preclude raising an issue which may be proper in the circumstances of the case. In other words, and according to doctrine and jurisprudence, jurisdictional matters can be taken up at any time. Moreover, a party may advance a legally distinct claim arising from the same facts without being barred by res judicata. In other words, a State can make a claim on one legal basis and this does not deprive it of the right to assert another claim on a separate legal basis. The question will then arise whether the issue raised by the latter claim was finally determined by the earlier decision. 5. It is thus the issues presented by the parties themselves that establish the operative parameters of the judgment and, “[i]n the last analysis the scope of the res judicata can only be determined by reference to the pleadings in general, and to the parties’ submissions in particular” (Shabtai Rosenne, The Law and Practice of the International Court, 1920-2005, Vol. 3, p. 1603). In this connection, the Court, explaining in the Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case what it had actually decided in its Judgment of 20 November 1950, observed that the question of how asylum was terminated was not raised or decided in the Judgment and that no res judicata effect was therefore possible on this issue. This was so, the Court remarked, because, “it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions” (I.C.J. Reports 1950, p. 402). 6. Of course, this does not affect the ability of the Court to satisfy itself of its own jurisdiction proprio motu (Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 52, para. 13). However, we hold the view that the Court had not done so in its 1996 Judgment, which is confirmed in its Judgment on the Legality of Use of Force (Serbia and Montenegro v. Belgium) where it was stated that, [p269] “in its Judgment on Preliminary Objections of 11 July 1996 . . . [t]he question of the status of the Federal Republic of Yugoslavia in relation to Article 35 of the Statute was not raised and the Court saw no reason to examine it” (I.C.J. Reports 2004, p. 311, para. 82). It does therefore now seem not only wholly inconsistent but even a denial of the Court’s own “juridical fact” to now reach the conclusion in the present Judgment that, as a matter of “logical construction” and as an element of the reasoning which can and must be read into the 1996 Judgment, the FRY had the capacity to appear before the Court in accordance with the Statute. In our opinion, the scope and effect of res judicata for purposes of jurisdiction ratione personae must be determined by reference to the law of the case itself: in this case, whether the Parties had access to the Court and whether the requirements of the United Nations Charter and the Statute of the Court for a Party to appear before the Court were met. 7. On the issue of access, the Court observes in the Judgment that “neither party raised the matter before the Court” because, it is asserted, Bosnia and Herzegovina, the Applicant, would not have wanted to contend that the FRY was not a party to the Statute, thereby, perhaps, denying the Court jurisdiction ratione personae, while the FRY would not have wanted to undermine or abandon its claim, at the time, to be the continuator State of the SFRY (para. 106). And, as the Court later confirmed in its Judgment in the case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium), the Court in 1996, “did not commit itself to a definitive position on the issue of the legal status of the Federal Republic of Yugoslavia in relation to the Charter and the Statute” (I.C.J. Reports 2004, p. 309, para. 74; emphasis added) and, as “[t]he question of the status of the Federal Republic of Yugoslavia in relation to Article 35 of the Statute was not raised . . . the Court saw no reason to examine it” (ibid., p. 311, para. 82). 8. Moreover, it is acknowledged in the present Judgment that the Parties and the Court were aware in 1996 that Serbia’s membership status of the United Nations and its status as a party to the Genocide Convention were controversial. The Judgment recalls in paragraph 130 that the Court had remarked in its 8 April 1993 Order indicating provisional measures in this case that the solution adopted in the United Nations regarding the status of the FRY as a Member and continuator State of the SFRY “[was] not free from legal difficulties” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p.14, para. 18). It further (para. 130) recognizes that there was in fact a disagreement before the Court between the Parties over the FRY’s status as [p270] a Member of the United Nations at the time of the filing of the Application: Bosnia and Herzegovina, in its Memorial (paras. 4.2.3.11-4.2.3.12), had contended that the FRY could not automatically continue the SFRY’s membership of the United Nations, while the FRY had made clear its view that it was the SFRY’s continuator State (Legality of Use of Force (Serbia and Montenegro v. Belgium), Judgment, I.C.J. Reports 2004, p. 299, para. 47). But neither Party actually supported or contested FRY’s access to the Court until Serbia and Montenegro’s admission to the United Nations as a new Member in 2000. It is thus obvious that not all of the elements of jurisdiction ratione personae were actually placed before and decided by the Court in its 1996 Judgment and, accordingly, that the res judicata effect of that Judgment for this issue is unsustainable, to say the least. 9. As stated earlier, as a matter of principle, a State is not precluded from legally raising a distinct claim arising from the same facts, where a separate point falls for decision within the same legal context. And more fundamentally, once the question of the Court’s jurisdiction has been raised in regard to specific issues, it is the duty of the Court to take those issues into account in determining, on the basis of the law, whether it has been vested with the authority or competence to decide the dispute. 10. The Court confirmed this position in its Judgment on the Legality of Use of Force (Serbia and Montenegro v. Belgium) when it held that “the right of a party to appear before the Court” (I.C.J. Reports 2004, p. 295, para. 36; emphasis added) is a question of statutory requirements “not a matter of consent” (ibid.). Thus, whether a State has access to the Court is regulated by the Statute and it is for the Court to determine whether that State meets the said requirements. In that Judgment the Court went on to hold that Serbia and Montenegro was not a Member of the United Nations at the time of the institution of those proceedings in 1999. Accordingly, much attention was focused by the Parties, at the merits stage of this case, on whether the Court had jurisdiction ratione personae over the FRY at the time of the institution of the present proceedings in 1993. 11. The requirements to be met in order for the Court to have jurisdiction ratione personae are set out in Articles 34 and 35 of the Statute. Article 34 deals with the statehood requirement, while Article 35, paragraph 1, provides that the Court “shall be open” to States parties to the Statute which includes, ipso facto, all Members of the United Nations (Charter, Art. 93, para. 1). Under Article 35, paragraph 2, the conditions under which the Court “shall be open to other States”, shall, “subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in [p271] a position of inequality before the Court.” Thus, the Security Council, acting pursuant to Article 35, paragraph 2, of the Statute, in its resolution 9 of 15 October 1946, set forth provisions by which the Court could be open to States not parties to the Statute. Resolution 9 provides for the Court to be open to non-party States that make a declaration accepting the jurisdiction of the Court under the Charter, the Statute, and the Rules, undertaking to comply in good faith with the decisions of the Court, and accepting all the obligations of a Member of the United Nations under Article 94 of the Charter. Article 41 of the Rules of Court regulates “[t]he institution of proceedings by a State which is not a party to the Statute” and provides that “the Court shall decide” “any question of the validity or effect” of a declaration accepting the jurisdiction of the Court, in accordance with any such Security Council resolution adopted pursuant to Article 35, paragraph 2, of the Statute. 12. The status of the FRY with regard to its United Nations membership from 1992 to 2000 is, therefore, an important consideration from the standpoint of Article 35 of the Statute. It may be recalled that the question of the FRY’s membership status in the light of the actions taken by the other organs of the Organization was characterized by the Court itself, in its 1993 Order, as “not free from legal difficulties” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Order of 8 April 1993, I.C.J. Reports 1993, p. 14, para. 18). The Court in its 2003 Judgment in the Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina) also described the “sui generis” position of the FRY vis-à-vis the United Nations from 1992 to 2000. In the light of Serbia and Montenegro’s admission as a new Member in 2000, the Court in 2004 revisited in a “prescriptive” way the question of the FRY’s status as a Member of the United Nations from 1992 to 2000 in its Judgment on the Legality of Use of Force (Serbia and Montenegro v. Belgium) and stated as follows: “the legal position of the Federal Republic of Yugoslavia within the United Nations and vis-à-vis that Organization remained highly complex during the period 1992-2000. In fact, it is the view of the Court that the legal situation that obtained within the United Nations during that eight-year period concerning the status of the Federal Republic of Yugoslavia, after the break-up of the Socialist Federal Republic of Yugoslavia, remained ambiguous and open to different assessments. This was due, inter alia, to the absence of an authoritative [p272] determination by the competent organs of the United Nations defining clearly the legal status of the Federalp Republic of Yugoslavia vis-à-vis the United Nations.” (I.C.J. Reports 2004, p. 305, para. 64; emphasis added.) With regard to the admission of the FRY as a Member of the United Nations, the Court stated as follows: “it has clarified the thus far amorphous legal situation concerning the status of the Federal Republic of Yugoslavia vis-à-vis the United Nations . . . from the vantage point from which the Court now looks at the legal situation, and in light of the legal consequences of the new development since 1 November 2000, the Court is led to the conclusion that Serbia and Montenegro was not a Member of the United Nations, and in that capacity a State party to the Statute of the International Court of Justice, at the time of filing its Application to institute the present proceedings before the Court on 29 April 1999” (Ibid., pp. 310-311, para. 79). The Court then went on to state that it, “can exercise its judicial function only in respect of those States which have access to it under Article 35 of the Statute. And only those States which have access to the Court can confer jurisdiction upon it.” (Ibid., p. 299, para. 46; emphasis added.) The Court further stated that, it had not committed: “itself to a definitive position on the issue of the legal status of the Federal Republic of Yugoslavia in relation to the Charter and the Statute in its pronouncements in incidental proceedings, in the cases involving this issue which came before the Court during this anomalous period” (ibid., p. 309, para. 74; emphasis added). 13. This finding by the Court is obviously not without significance. It is not res judicata for the present case in the sense contemplated by Articles 59 and 60 of the Statute of the Court because it was not applicable between the same Parties and in respect of this “particular case”. But, from both the factual and legal perspectives, it seems quite clear that, if Serbia and Montenegro was not a Member of the United Nations in 1999, then it must also not have been a Member on 28 March 1993, when the Application in this case was filed. Accordingly, as the Respondent was not a Member of the United Nations, it was ineligible for one of the two methods by which a State may accede to the Genocide Convention pursuant to its Article XI (the other being upon invitation by the General Assembly). 14. But in order to reach to the conclusion that it had jurisdiction by virtue of Article IX of the Genocide Convention, the Court in its 1996 Judgment took note of the FRY’s proclamation of 27 April 1992 that it “shall strictly abide by all the commitments that the Socialist Federal [p273] Republic of Yugoslavia assumed internationally” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, I.C.J. Reports 1996 (II), p. 610, para. 17) and observed further that “it has not been contested that Yugoslavia was party to the Genocide Convention” (ibid.). Thus, the Court held, “Yugoslavia was bound by the provisions of the Convention on the date of the filing of the Application in the present case, namely, on 20 March 1993” (ibid.). The Court would thus appear to have made its finding on the basis of estoppel rather than res judicata. In the first place, it is our understanding that the principle of estoppel is distinguishable, cannot be inferred in all circumstances, and serves a different function, from that of res judicata on an issue like jurisdiction and cannot replace the latter, nor indeed can it replace the requirements of the United Nations Charter or the Statute of the Court. 15. We are also constrained to observe that, in affirming its jurisdiction ratione personae based on res judicata, the Court chose not to address the relevance of Article 35, paragraph 2, of the Statute for the purposes of its jurisdiction, even though this was one of the Respondent’s central arguments at this stage. It will be recalled that, in the 1993 Order indicating provisional measures in this case, the Court considered that: “proceedings may validly be instituted by a State against a State which is a party to such a special provision in a treaty in force, [as indicated in Article 35, paragraph 2, of the Statute] but is not party to the Statute, and independently of the conditions laid down by the Security Council in its resolution 9 of 1946” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 14, para. 19). The Court considered that Article IX of the Genocide Convention could be regarded prima facie as a special provision in a treaty in force within the meaning of Article 35, paragraph 2. However, following comprehensive consideration of the matter the Court, in its Judgment in the Legality of Use of Force (Serbia and Montenegro v. Belgium) case, concluded that “the special provisions contained in treaties in force” (I.C.J. Reports 2004, p. 324, para. 113) to which Article 35, paragraph 2, applies are those “in force at the date of the entry into force of the new Statute” (ibid.) - a condition which would exclude the Genocide Convention (entry into force 12 January 1951). 16. It is against this background that the Court found in its Judgment [p274] in the Legality of Use of Force (Serbia and Montenegro v. Belgium) case that the FRY was not a Member of the United Nations in 1999 and that the Genocide Convention did not contain any of “the special provisions contained in treaties in force” (ibid., para. 114). 17. It thus seems to us, notwithstanding Articles 59 and 60 of the Statute of the Court, that it is inconsistent as well as jurisdictionally untenable for the Respondent to be considered to have been a Member of the United Nations in 1993 or to have otherwise satisfied the requirements of Article 35 of the Statute. In other words, if at the time the Application was filed the FRY was neither a Member of the United Nations nor a party to the Statute, then it lacked access to the Court. Access to the Court must meet the constitutional and statutory requirements for it to be valid. We firmly believe that it is fundamental that the Court should always ensure it has jurisdiction over a case when faced with the challenge of whether a party has access to it. Faced with such a challenge by the Respondent in this case, that the Court lacked jurisdiction ratione personae over it, judicial consistency would have required the Court to respond as it did in the Legality of Use of Force cases. The Court there felt bound first and foremost to examine the question whether the Respondent was or was not a party to the Statute of the Court at the time the proceedings were instituted as it considered the question of access to the Court of such importance that it constituted an exception from the general rule that the Court is free to determine which ground to examine first (Legality of Use of Force (Serbia and Montenegro v. Belgium), Judgment, I.C.J. Reports 2004, p. 298, para. 45). It is regrettable that on this occasion the Court chose to depart from its own jurisprudence. 18. But the Court has not been able to reconcile the judicial inconsistency regarding its finding on res judicata even within this Judgment. In paragraph 74 of the present Judgment, the Court observes that the facts and events that constitute the subject-matter of Bosnia and Herzegovina’s Application in this case, and the submissions based upon them, occurred when Serbia and Montenegro was a single State. But for reasons explained in paragraphs 75 and 76 of the Judgment, the Court now decides that any findings of law that the Court may make are to be addressed only to Serbia. On the other hand, the 1996 Judgment on Preliminary Objections, which constitutes the basis of the Court’s findings on res judicata, was addressed to the Federal Republic of Yugoslavia (Serbia and Montenegro). If the Court’s findings are not to be reopened by subsequent events (para. 120), we find it difficult to reconcile this dictum of the Court with the position of res judicata it has taken on the 1996 Judgment. 19. It is our view that in the Judgment the Court, by relying on res judicata as a basis for its jurisdiction, did not give the comprehensive consideration required of the principle which alone would have allowed it [p275] to arrive at a legally valid conclusion, and has neglected to deal with one of the substantive submissions squarely put before it at this juncture, namely, whether the Respondent had valid access to the Court for the Court to exercise its jurisdiction in this case. (Signed) Raymond RANJEVA. (Signed) SHI Jiuyong. (Signed) Abdul G. KOROMA. [p276] SEPARATE OPINION OF JUDGE RANJEVA [Translation] THE DUTY TO PREVENT 1. In law, international responsibility for omission is recognized in order to safeguard the fundamental interests of the international community. Stipulating the obligation to prevent is part of an approach to international legal relations based on international or even global solidarity. This approach thus adds a new international legal relations dimension to the interpretation of legal relations. In paragraph 430, the Judgment describes the content of the obligation to prevent as one of means and not one of result as such, inasmuch as there is no guarantee of success. If the State party has the discretionary power to act as it deems most appropriate, the question is whether it is free to act or not to act as regards the duty to prevent laid down by the 1948 Convention, as opposed to the rules of general international law. Exceptionally, the State party is obliged to act and, in this case, passivity or indifference constitutes a breach of the obligation to prevent genocide. The silence of the Convention on the conditions for fulfilling that obligation confers on the State party the power to draw whatever conclusions it sees fit from the facts constituting the dispute. Yet the question is whether the failure to act can be regarded as a legitimate option under the treaty law concerned. 2. The 1948 Convention makes it an obligation on States parties to prevent the crime of genocide (see Judgment, para. 166). At the time, that stipulation in the Convention updated the requirements of positive international law in line with the requirements of universal morality and was justified by the universal nature of the jurisdictional mission: the universal conscience was directly challenged by the problems of breaches of the 1948 Convention at a time when most of the major players in world affairs were present at the scene of the catastrophe. Further, one aspect of that obligation appears to have been overlooked: the enduring nature of this duty, unlike that of the duty to punish; vigilance, exercised with discernment, must be constant, with a greater degree of interest if not of curiosity required during political or humanitarian crises. The Court had to point out, in the present case, that the duty to prevent applies to all the [p277] States parties to the Convention. However, the content of this obligation must in reality be interpreted according to the particular situation of each State concerned. The Court’s restriction of its analysis to the legal obligations of the Parties in the current proceedings alone cannot be interpreted as in some way qualifying or rendering extraneous the duty to prevent the crime of genocide contracted by the international community as a whole. 3. The account of the preparatory work for the 1948 Convention (Judgment, para. 164) shows that the attention of those involved was focused more on the obligation to punish the crime of genocide than on that to prevent it. This is explained by the historical and political circumstances obtaining immediately before and after the Second World War. In the general framework of international instruments in the immediate post-war period, the duty to prevent was essentially covered by the declaration of the rights and duties of States (A/RES/177 and A/RES/178 (II)). The present Judgment puts an end to any disputes of an ideological rather than a legal nature: the duty to prevent falls within the rules of positive law (Judgment, para. 165). Having asserted that principle, establishing its content is nonetheless no easy matter. The awkwardness of the description in paragraph 430 of the Judgment shows the difficulty of charting the features of this obligation. 4. The Judgment examines the failures in the duty to prevent the crime of genocide in terms of “due diligence” as regards the conduct and acts attributable to one State in particular; mutatis mutandis, the Court has analysed the alleged failures by studying individual conduct. From the standpoint of treaty responsibility in bilateral relations, a method of this kind is easily justified. On reflection, it might be queried whether such an approach is adequate to cover the whole range of duty relations under the 1948 Convention with respect to vigilance in a multilateral setting and, moreover, when dealing with the supreme international crime of genocide. If the international solidarity which underlies the duty to pre-vent genocide is to be ensured, it is hard to see the conventional obligation of this instrument as a series of bilateral relations between the States parties; the Convention would fail to meet its objective if it gave rise to a group which lacked a common understanding of the rules to be applied. This may explain why the duties established by the Convention have been characterized as erga omnes obligations “even without any conventional obligation” (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23). The binding nature of the obligation does not arise from the individual commitment of the State, but from the value attributed to that duty by the law. 5. The 1948 Convention undoubtedly represents a legal advance in two respects. First, it specifies an undertaking to prevent the crime of genocide, establishing the scope of States’ discretionary powers through [p278] the legal definition in Article II of acts that constitute genocide. Secondly, it creates an obligation of result in Article V, where it prescribes the legislation necessary to give effect to the Convention. But the initial undertaking raises difficulties in that the existence of certain acts set out in Article II creates a duty to take action. Likewise, seeking to categorize acts as those referred to in Article II is a delicate task to perform, since it involves a subjective and pejorative appraisal of the conduct of the State to which the acts are attributed, when the issue of genocide is a matter for multilateral co-operation. There is a great temptation to endorse, without discernment, the ethnic presuppositions that form the basis for constituting a State. In law, one consequence is clear: States may no longer neglect to gather data and information to account for their decisions where such acts are in issue. For practical reasons, this conclusion is inescapable. The undertaking of a State party is sanctioned by its treaty responsibility, in the sense that each State has had to anticipate the extent of its commitment and also the legal consequences that it would have to face in the event of default. We must not allow these expecta-tions to be undermined by subjective and artificial categorization by third parties of the acts referred to in Article II, when all the Contracting Parties are subject to the same terms of the Convention. 6. For these reasons, however, one must humbly acknowledge the difficulties encountered by judges in gauging the reality of the threat or risk of genocide when an assessment is required. But the fact remains that such an assessment lies within the competence of each State party. Apart from recalling the obligation under general international law not to interfere in the internal affairs of States, the evaluation of the risks of genocide, in disputes before the International Court of Justice, essentially derives from the assessment produced by increasingly concerted diplomatic action. That is the purpose of the provisions of Article VIII and the diplomatic approach, thus illustrating the content of the duty to prevent. Judicial monitoring of the categorization of the acts entails the risk that judges may be led to substitute their analysis for that of the State authorities responsible for international relations. (Signed) Raymond RANJEVA. [p279] JOINT DECLARATION OF JUDGES SHI AND KOROMA 1. We entertain more than serious doubts regarding the interpretation given to the Genocide Convention in the Judgment to the effect that a State can be held directly to have committed the crime of genocide. This interpretation is not only highly questionable but also inconsistent with the object and purpose of the Convention, as well as its wording and plain meaning. As an international criminal instrument, the Convention envisages the trial and punishment of individuals for the crime of genocide. It does not impose criminal responsibility on the State as a State. Indeed, it could not have done so at the time it was adopted given that the notion of crime of State was not part of international law and even today general international law does not recognize the notion of the criminal responsibility of the State. We therefore do not subscribe to an expansive interpretation of the Convention producing an outcome which is contrary to its plain meaning. The Court has stressed that “[i]nterpretation must be based above all upon the text of the treaty” (Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 22, para. 41). It should be further emphasized that the purpose of interpreting a treaty is to determine the meaning of its provisions which [p280] the parties must be taken to have intended at the time the treaty was negotiated and concluded, and not to achieve a desired outcome. Accordingly, it is not within the power of the Court to give an arbitrary and subjective interpretation to a treaty contrary to its plain meaning and the intention of the parties. 2. According to the canons of interpretation reflected in Article 31 of the Vienna Convention on the Law of Treaties, a treaty should be interpreted in accordance with the ordinary meaning of its terms in their context and in the light of its object and purpose. Those same rules give primacy to the intention of the parties at the time the treaty was concluded, and in particular the meaning attached by them to the words and phrases at the time. According to Jennings and Watts: “A treaty is to be interpreted in the light of general rules of international law in force at the time of its conclusion - the so-called inter-temporal law. This follows from the general principle that a juridical fact must be appreciated in the light of the law contemporary with it. Similarly, a treaty’s terms are normally to be interpreted on the basis of their meaning at the time the treaty was concluded, and in the light of circumstances then prevailing. Nevertheless, in some respects the interpretation of a treaty’s provisions cannot be divorced from developments in the law subsequent to its adoption. Thus, even though a treaty when concluded did not conflict with any rule of jus cogens, it will become void if there subsequently emerges a new rule of jus cogens with which it is in conflict. Similarly, the concepts embodied in a treaty may be not static but evolutionary, in which case their ‘interpretation cannot remain unaffected by the subsequent development of law . . . Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.’ While these considerations may in certain circumstances go some way towards negating the application of the inter-temporal law, that law will still, even in such circumstances, provide at least the starting-point for arriving at the proper interpretation of the treaty.” (Oppenheim’s International Law, Vol. I, 1992, pp. 1281-1282; footnotes omitted.) 3. The object and purpose of the Genocide Convention is to prevent and to punish the crime of genocide, and, reflecting the Nuremberg principles, the Convention is directed against individuals and not the State. The Convention binds States parties to punish persons responsible for committing genocide and genocidal acts. Article II of the Convention defines the crime of genocide, while Article III sets out the punishable offences in relation to the crime. Article IV provides for the punishment of persons committing any of the acts enumerated in Article III, be they constitutionally responsible rulers, public officials or private individuals. The Convention thus contemplates the prosecution and punishment of [p281] individuals, rather than the State. States parties’ responsibilities are spelled out in different terms, regarding which Article V requires the parties to enact the necessary legislation to give effect to the provisions of the Convention and, in particular, to provide effective penalties for persons guilty of genocide or other acts set out in Article III. Article VI requires that persons charged with genocide or any other such punishable acts shall be tried by competent national or international tribunals. Article VII states that genocide is not to be considered a political crime and requires parties to extradite the accused, while Article VIII provides that: “Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III.” 4. It is with respect to these specific provisions concerning legislation, extradition, trial, and punishment of individuals alleged to have committed the crime of genocide that the State party may be held to be in breach of the Convention. States parties’ obligations, as well as the object and purpose of the Convention, thus are aimed at preventing and punishing individuals who commit the crime of genocide and there was no intention that a State party should punish itself for the crime of genocide. According to Hersch Lauterpacht: “The Convention on the Prevention and Punishment of the Crime of Genocide approved by the General Assembly in 1948 lays down that genocide, whether committed in time of peace or war, is a crime under international law which the Parties undertake to prevent and to punish and that the persons responsible for that crime shall be punished ‘whether they are constitutionally responsible rulers, public officials or private individuals’. The Convention thus subjected individuals to the direct obligation and sanction of international law.” (International Law and Human Rights, 1950, p. 44; emphasis added; footnote omitted.) Hence, Article I of the Convention has to be interpreted in the light of Article VI and the attempt in the Judgment to sever Article I of the Convention from Articles IV, V, VI, VII and VIII, in order to reach the outcome stated in the Judgment, is to us legally unsustainable and contrary to the object and purpose of the Convention, the meaning of the text of the Convention and the real intention of the parties. It is contrary to the intention of the Contracting Parties when the Judgment interprets Article I of the Convention to mean by implication or logic (paragraph 166 of the Judgment) that the Convention imposes upon a State the obligation not to commit genocide. If a State can commit the crime of genocide, then surely it would have to be viewed as being able to commit other crimes, including murder. But such a situation is neither acceptable nor recognized as part of present-day international law. As stated earlier, [p282] “interpretation” by implication or logic cannot replace the overriding rule that primary regard must be given to the intention of the parties at the time the treaty was concluded. Moreover, in our view, if the Convention was intended to establish an obligation of such grave import as one that could entail some form of criminal responsibility or punishment of a State by an international tribunal such as this Court for genocide, this would have been expressly stipulated in the Convention, but the Convention did not do so. We take the view that it is in order to avoid attributing genocide to the State itself that the Convention provides in Article IV, “[p]ersons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals”, thus putting the responsibility for the crime on the individual. A proposed amendment to the effect that such acts committed by individuals acting on behalf of the State would be considered a breach of the Convention, and that such cases should be submitted to the International Court of Justice, which would order the cessation of the acts and payment of reparation to the victims, was rejected during the drafting negotiations on the basis of the view that the purpose of the Convention was to punish genocide, and any other responsibility than criminal would be out of place in such a convention. The Court is not vested with penal jurisdiction, nor is it equipped to exercise such jurisdiction in this case. In other words, the Convention does not entitle the Court to hold a criminal trial, nor impose on the State an obligation to pay damages (punitive or otherwise) or to provide for them in its domestic legislation. Hence, an earlier attempt - like that made in the present Judgment - to transform the essentially individual criminal concept of genocide, as was conceived in the Convention, into one whereunder a State may be held responsible for committing genocide was rejected during the negotiation of the Convention (see United Nations, Official Records of the General Assembly, Third Session, Part I, Sixth Committee, Annex, doc. A/C.6/236 and Corr.1). Such an important obligation, in our view, would have been expressly stated in the Convention if such had been the intention of the Contracting Parties. 5. Notwithstanding our disagreement with the interpretation reached “by implication” that Article I of the Convention imposes an obligation on the State not to commit genocide, we have voted in favour of the findings regarding the prevention of genocide in Srebrenica in July 1995, as we believe in the intrinsic humanitarian value of the conclusion reached by the Court and recognize the overriding legal imperative established by Article I of the Convention, namely: the duty of a State to do what it properly can, within its means and the law, to try to prevent genocide when there is a serious danger of its occurrence of which the State is or should be aware. (See also Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. [p283] Reports 1951, p. 23: “[t]he principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation”.) We believe that the conclusion reached in the Judgment in connection with the prevention obligation would have been legally secure if anchored on the relevant Security Council resolutions, instead of the various hypotheses put forward in the Judgment. The present formulations do not clearly specify what opportunities the Respondent had to prevent the genocide, while the Security Council had in fact very clearly warned of the imminent and serious humanitarian risk posed by any advance of Bosnian Serb paramilitary units on Srebrenica and its surroundings. That finding a breach of the obligation to prevent requires the identification of a clear missed moment of opportunity to act has been underscored by the European Court of Human Rights in its interpretation of the positive obligation to protect human life contained in Article 2, paragraph 1, of the European Convention for the Protection of Human Rights and Fundamental Freedoms (see Osman v. United Kingdom, Judgment of 28 October 1998, Reports 1998-VIII, p. 3159). With regard to the relevant Security Council resolutions, we would recall that the Security Council, in resolution 819 (16 April 1993), noted the provisional measures ordered by the Court in 1993, stating, inter alia, that the FRY should take all measures within its power to prevent the commission of the crime of genocide. Resolution 819 went on to condemn “ethnic cleansing” and to express specific concern over the “pattern of hostilities” by Bosnian Serb paramilitary units that by “direct consequence” had led to an ongoing “tragic humanitarian emergency” in Srebrenica. Acting under Chapter VII, the Council then demanded that “Srebrenica and its surroundings” be treated as a safe area free from any attack and that the besieged population be permitted to receive appropriate humanitarian relief. The Council’s decision with respect to “Srebrenica and its surroundings”, together with its specific concern about war crimes and the deteriorating humanitarian situation in Srebrenica, certainly suggests some real opportunities for the Bosnian Serb leadership to have acted to try to prevent the genocide. Awareness of a specific risk may have been raised as early as 2 July 1995 (the date of the plan to reduce “the enclave to the urban area”), or on 6 July when the attack on Srebrenica’s surroundings actually began. A specific risk undeniably existed by 12 July when Srebrenica had fallen but the mass killings had not yet begun and the Security Council, acting under Chapter VII, passed resolution 1004 (1995) demanding that the Bosnian Serb forces cease their offensive and withdraw from the Srebrenica safe area immediately and that all parties respect the Agreement of 18 April 1993 (essentially implementing resolution 819) (1993). [p284] 7. Mr. Miloševic, even though it has not been proved that he had effective control over the Bosnian Serb leadership, could and should have exerted whatever pressure he had at his disposal, given the humanitarian directives concerning Srebrenica that were the focus of Chapter VII Security Council decisions in resolutions 819 (16 April 1993) and 1004 (12 July 1995). (Signed) SHI Jiuyong. (Signed) Abdul G. KOROMA. [p285] SEPARATE OPINION OF JUDGE OWADA I. INTRODUCTORY REMARKS 1. I concur in general with the conclusions that the Court has reached in this case as contained in its operative clause (dispositif). This position of mine applies both to the issue of jurisdiction and to the issues of merits. 2. However, I find some parts of the Judgment are not necessarily the same as my own view in some important respects. I find this to be the case, especially in relation to the issue of jus standi of the Respondent, as contained in Section III of the Judgment on “The Court’s jurisdiction”, and in relation to the issue of the application of the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter referred to as the “Genocide Convention”) to the Respondent, as contained in Section IV of the Judgment on “The applicable law . . .”. More specifically, it is my view that the Court’s pronouncement on the issue of jus standi of the Respondent in the present case, to which I agree, should be elaborated a little further to answer to some of the points raised by the Parties, whereas the Court’s conclusion on the issue of the application of the Genocide Convention to the Respondent, to which I also agree, has been reached on grounds which I cannot share. 3. For these reasons, I wish to append to the Judgment my own separate opinion, which is confined to these two issues. [p286] II. THE ISSUE OF JUS STANDI OF THE RESPONDENT 4. As the starting point for my examination of this issue, I wish to make a few preliminary comments. First, I wish to make the point that the Judgment of the Court in the 2004 Legality of Use of Force cases (see Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, pp. 279 et seq.) should be taken as one important point of reference for our consideration of the present case, in spite of the fact that it is obviously a different case in the technical sense. It is the most recent authoritative statement on the legal position of this Court on a number of points relevant to the present case. I do not accept as valid the approach advanced by the Applicant to the effect that the Court in the present case would have to choose between the two alternatives - (a) to harmonize a “vertical inconsistency” between the 1996 Judgment on preliminary objections in the present case and the present Judgment, or (b) to harmonize a “horizontal inconsistency” between the Judgment on preliminary objections in the 2004 Legality of Use of Force cases and the present Judgment, and that the Court should choose the first approach. These two, however, are not to be the alternatives from which to choose one rather than the other. In my view, the Court should proceed in the present Judgment on the basis that there is no inconsistency between the 1996 Judgment and the 2004 Judgment. 5. Second I regard the present phase of the proceedings, not as one more additional argument on preliminary objections to the “jurisdiction” - ratione personae - of the Court, but rather as a so far unexplored phase of the proceedings, in which the Court would have to conduct an examination into the allegation of some fundamental defect in the application of the law of procedure of the Court that might vitiate the basis of competence of the Court to deal with the present case on the merits. It is my view that this issue of access to the Court is an issue separate from the issues of jurisdiction in its specific sense, whether ratione personae, ratione materiae,or ratione temporis, which are all issues relating to the scope of the consent given by the parties under the relevant legal instruments (or the relevant legal act in the case of forum prorogatum) in relation to a concrete dispute. 6. Finally, it is my view that for this reason the principle enunciated in the case concerning the Appeal Relating to the Jurisdiction of the ICAO Council (hereinafter referred to as “ICAO Council” case) is simply irrelevant. I certainly endorse the principle enunciated in that Judgment to the effect that “always” in this dictum means “always” in the sense of “at any stage of the proceedings in the case” (Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 52, para. 13). This, however, is stating the obvious and nothing more, since the Court is ipso jure mandated, both as of right and as of duty, to ascertain that it has jurisdiction at any stage of the proceedings, to the extent that the point at issue has not been raised earlier in the same proceedings and decided upon by the Court in a way which would constitute [p287] res judicata. On the other hand, I submit that the issue raised in the “Initiative to the Court to Reconsider ex officio Jurisdiction over Yugoslavia” (hereinafter referred to as the “Initiative”) of 4 May 2001 by Serbia and Montenegro is not an issue of “jurisdiction” of such character in its specific sense in which the term is used in the ICAO Council case. 7. In the Legality of Use of Force cases, the Court clarified by its 2004 Judgment on preliminary objections the legal character of the “access to the Court” in the following words: “[t]he question [in those cases] is whether as a matter of law Serbia and Montenegro was entitled to seise the Court as a party to the Statute at the time when it instituted proceedings” (see Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 295, para. 36; emphasis in the original), and that this was a separate question from the issue of jurisdiction in a specific case. The Court came out with the conclusion that “at the time of filing of its Application to institute the present proceedings before the Court on 29 April 1999, the Applicant in the present case . . . was not a Member of the United Nations, and, consequently, was not, on that basis, a State party to the Statute of the International Court of Justice” (see ibid., p. 314, para. 91). Contrary to urging from the Applicant that the Court treat this conclusion as exceptional and even as something to be disregarded as irrelevant to the present case, I do consider it relevant to the present case. It is proper for the Court not to depart from the position expressed in this conclusion of the Court and its basic reasoning; after all the Court has pronounced a definitive position on this matter. I might add that this is not one of those cases to which an old adage that “a difficult case makes a bad law” would apply. The conclusion reached by the Court is the result of the best efforts on the part of the Court. (It should also be recalled that in these case all the applicants except France advanced an argument based on the alleged lack of jus standi of the Applicant as their principal line of argument.) While obviously this judgment does not technically constitute a res judicata for other cases including the present one, to which Article 59 of the Statute applies, what is relevant for the consideration of the Court is the question of whether and to what extent the legal reasoning enunciated by the Court in arriving at its conclusion in that judgment is applicable to the present case. The Applicant has tried to argue that the Respondent is deemed to [p288] have accepted the jurisdiction of the Court in the present case, by invoking the principle of estoppel and/or the principle of acquiescence or further to rely on the doctrine of forum prorogatum. The basic rationale for this position would seem to be common in all of these arguments. It rests on the proposition that the Respondent, by acting as if it did not contest the jurisdiction of the Court for any other grounds than those which it had specifically raised as the basis for objection to the jurisdiction of the Court in the preliminary objections phase of the present case, has to be regarded in law either as having accepted the jurisdiction of the Court in the present case (the principle of acquiescence), or as having been barred from raising a new ground which is the subject-matter of the present démarche of the Respondent (the principle of estoppel), or as having been deprived of the freedom to act in a different way (the principle of good faith). Alternatively the Applicant further argues that the Respondent has acted in fact in such a way as to be tantamount to consenting to the exercise of jurisdiction by the Court in the present case (the doctrine of forum prorogatum). 10. These arguments, in a word, are based on one common presupposition, i.e., whatever lacuna may have existed in the lien of jurisdiction that would tie the parties to the Court could be filled by the operation of law or by some actual behaviour of the parties, in such a way as to establish the consent of the Parties to jurisdiction. 11. However, it must be pointed out that while all these principles may be relevant to the issue of legal relationship inter partes before the Court, the issue raised in the present phase of the proceedings is a different one in its essential character. And this issue, as a matter of principle, has been the subject of the decision by the Court in its 2004 Judgment on the Legality of Use of Force cases. As the Court so unequivocally stated in that Judgment “it is the view of the Court that a distinction has to be made between a question of jurisdiction that relates to the consent of a party and the question of the right of a party to appear before the Court under the requirements of the Statute, which is not a matter of consent” and “[t]he function of the Court to enquire into the matter and reach its own conclusion is thus mandatory upon the Court irrespective of the consent of the parties and is in no way incompatible with the principle that the jurisdiction of the Court depends on consent” (see Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 295, para. 36). This position of the Court has to be accepted as an authoritative statement of the law in dealing with the present case. 12. For this reason, all these arguments advanced by the Applicant to [p289] justify the exercise of jurisdiction by the Court in the face of a new attempt of the Respondent based on its claim of the lack of jus standi access to the Court should be rejected. On this point, I am in agreement, with the conclusion reached by the Judgment (paras. 102-103). 13. However, the Applicant has also tried to argue that in any case the 1996 Judgment on preliminary objections in its entirety constitutes res judicata in the present case and thus prevents the Respondent from raising the issue of the access to the Court/jurisdiction ratione personae,as contained in the new “Initiative” of the Respondent, at this stage of the proceedings. It is my view, however, that an assertion of the principle of res judicata with such a sweeping and general application cannot be accepted as a valid construction of the principle of res judicata in international law. 14. Article 60 of the Statute is generally regarded to be the provision in the Statute that gives expression to the principle of res judicata as applied to the International Court of Justice. The statement contained in Article 60 of the Statute has been interpreted as the practical embodiment within the Statute of the rule of res judicata as “a general principle of law recognized by civilized nations”. Thus, during the discussion in the Advisory Committee of Jurists contracted with the task of drafting the Statute of the Permanent Court of International Justice, it was suggested by one member of the Committee (Lord Philimore) that “the general principles referred to in [the present Article 38] were these which were accepted by all nations in foro domestico, such as certain principles of procedure, the principle of good faith, and the principle of res judicata, etc.” (PCIJ, Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Committee, 1920, p. 335). Nevertheless, the jurisprudence of this Court, especially in its Advisory Opinion in the case concerning the Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (hereinafter referred to as the “Effects of Awards” case), makes it quite clear that the principle contained in Article 60 of the Statute cannot be considered as an absolute rule in relation to an international tribunal. The Court stated in that Advisory Opinion that “[t]his rule . . . cannot . . . be considered as excluding the Tribunal from itself revising a judgment in special circumstances when new facts of decisive importance have been discovered” (Effects of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1954, p. 55). 15. This is particularly true with an international jurisdiction in which the competence of the tribunal is not a priori determined by the legal system itself within which the tribunal operates but is subject to the jurisdictional [p290] framework set by the parties to the dispute. For this reason Judge Jessup, in his dissenting opinion in the 1966 South West Africa case, emphasized the relative nature of res judicata in international law by stating that “the Court is always free, sua sponte, to examine into its own jurisdiction” (South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 333). Thus he concluded as follows: “Various pronouncements in the jurisprudence of the two Courts [i.e., the PICJ and the ICJ], in various separate opinions and in the ‘teachings of the most highly qualified publicists’ do not provide an automatic test to determine what is within and what is without the res judicata rule.” (Ibid.) In applying the res judicata rule, it is indeed essential that we avoid an automatic application of the rule and try to determine the scope of what has been decided as res judicata in the concrete context of the case. 16. Specifically in relation to the present case, the critical question in issue is whether the problem of access to the Court, argued by the Respondent extensively at the present phase of the proceedings on the basis of its “Initiative” of 2001, is something which has been disposed of by the Court in its 1996 Judgment dealing with preliminary objections to the jurisdiction of the Court and should thus be regarded as falling within the scope of res judicata - “that which has already been judged” - for the purposes of the present case. 17. It must be emphasized that in the present case the question of jus standi of the Respondent/access of the Respondent to the Court was, as a matter of fact, never an issue before the Court at the time of the 1996 Judgment - neither raised by the Applicant nor by the Respondent. In the proceedings on preliminary objections, the Respondent raised seven preliminary objections relating to the jurisdiction of the Court but did not refer to this issue of access to the Court. On the basis of the arguments of the parties, the 1996 Judgment made no mention of this aspect of the problem of “jurisdiction” lato sensu, i.e., the problem of the “competence” of the Court to entertain the case. The dispositif of the Judgment was confined to specifically rejecting all six - one out of the seven having been withdrawn - preliminary objections and on this basis proceeded to a finding that “on the basis of Article IX of the [Genocide] Convention, [the Court] has jurisdiction to adjudicate upon the dispute” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 623, para. 47 (2) (a) (dispositif)). 18. This makes a conspicuous contrast to the language of the Court in its earlier Order of 8 April 1993 on the Request for the Indication of Provisional Measures. In that Order the Court drew the attention of the parties to the point that [p291] “Article 35, paragraph 1, of the Statute of the Court provides that ‘The Court shall be open to the States parties to the present Statute’, and Article 93, paragraph 1, of the United Nations Charter that ‘All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice’; and . . . it is maintained in the Application that ‘As Members of the United Nations Organization, the Republic of Bosnia and Herzegovina and Yugoslavia (Serbia and Montenegro) are parties to the Statute’; . . . however in the Application Bosnia-Herzegovina indicates that the ‘continuity’ of Yugoslavia with the former Socialist Federal Republic of Yugoslavia, a Member of the United Nations, ‘has been vigorously contested by the entire international community, and [sic] including by the United Nations Security Council . . . as well as by the General Assembly’, and reference is there made to (inter alia) Security Council resolution 777 (1992) and General Assembly resolution 47/1” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 12, para. 15). After reviewing the contents of Security Council resolution 777 (1992) and General Assembly resolution 47/1, as well as the letter of the Under-Secretary-General and Legal Counsel of the United Nations of 29 September 1992 in which he stated the “considered view of the United Nations Secretariat regarding the practical consequences of the adoption by the General Assembly of resolution 47/1” (ibid., p. 13, para. 17), the Court declared that “while the solution adopted [in the United Nations as of that time] is not free from legal difficulties, the question whether or not Yugoslavia is a Member of the United Nations and as such a party to the Statute of the Court is one which the Court does not need to determine definitively at the present stage of the proceedings”(ibid.,p.14, para. 18; emphasis added). It is thus clear that the Court in this 1993 Order consciously refrained from pronouncing its position on this crucial issue, while implicitly reserving the matter for future “definitive determination”. 19. In spite of this background, the Court in its 1996 Judgment, while it could not have been unaware of this problem concerning the legal situation surrounding the legal status of the Respondent (jus standi) vis-àvis the Court, made no mention of this aspect of the problem of “jurisdiction” lato sensu, and decided that “on the basis of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, it has jurisdiction to adjudicate upon the dispute”(Application of the Convention on the Prevention [p292] and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 623, para. 47 (2) (a) (dispositif); emphasis added). More specifically, in paragraphs 41 and 42 of the 1996 Judgment, the Court stated as follows: “41. It follows from the foregoing that the Court is unable to uphold any of the additional bases of jurisdiction invoked by the Applicant and that its only jurisdiction to entertain the case is on the basis of Article IX of the Genocide Convention. 42. Having ruled on the objections raised by Yugoslavia with respect to its jurisdiction, the Court will now proceed to consider the objections of Yugoslavia that relate to the admissibility of the Application.” (Ibid., p. 621.) This passage can only be interpreted as signifying that the Court was focusing its attention with regard to jurisdiction exclusively upon the issues raised by the parties. The language of the Judgment strongly sug-gests that in making that statement and those that followed, including paragraph 46 and the dispositif subparagraph 2 (a), the Court was addressing to those issues of jurisdiction stricto sensu which had been raised by the Respondent, without going into examination of the issue of access, an issue which, in its nature, was independent from the argument of the parties and which was to be determined by the Court as an objective question. 20. It should be clear from this background of facts surrounding the 1996 Judgment that what is at issue here is not the question of whether the principle of res judicata as incorporated in Article 60 of the Statute is to be honoured or not. It is clear that this is a principle to be honoured by this Court, though with all the caveats that I have discussed earlier on as a legal principle. Neither is it the question of whether the principle applies to the decision of the Court on the merits only or extends to its decision on procedural issues, including the issues of jurisdiction. Clearly the principle should be applicable to both. It is not even the question of whether the 1996 Judgment as a general proposition constitutes res judicata either. It does certainly constitute res judicata. On all these points, I endorse the position taken by the Court in the present Judgment. 21. The sole and crucial question is what is to be regarded as the exact element of this 1996 Judgment that constitutes res judicata for the purposes of the present Judgment. 22. It could be said in this context that perhaps it was unfortunate that in 2001 Serbia and Montenegro brought this very issue before the Court in the form of an application for revision of the 1996 Judgment (Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the [p293] Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina) (hereinafter referred to as the “Revision of the 1996 Judgment” case), rather than in the form of a request for interpretation of the 1996 Judgment. As the former was strictly the question of the application of Article 61 of the Statute, the Court - quite correctly in my view - gave its 2003 Judgment strictly within the confines of the conditions set out in Article 61. If the issue had been raised as a new dispute concerning the interpretation of the 1996 Judgment as to whether the Judgment covered the question of access of the Respondent to the Court, i.e., as a “dispute as to the meaning or scope of the judgment” under Article 60, the Court could have had the opportunity in 2003 to address the present issue before the Court. 23. Be that as it may, it would seem difficult to establish against the background as reviewed above, that the Court in 1996, while fully aware of the problem which it had already acknowledged in its Order of 8 April 1993 to exist and chosen to avoid to answer, did go, as a matter of fact, into an examination of that issue, though without pronouncing upon it expressis verbis in the Judgment, and came out with the “definitive determination” on that issue in the form of such dispositif. If that had been the case, the conclusion would certainly be warranted that this specific aspect of the problem would certainly be covered automatically by the application of the res judicata principle. 24. Under the actual circumstances of 1996 as revealed through the examination of the factual background, however, I find it difficult to accept the argument of the Applicant that the Court did decide, as a matter of fact, the issue of access to the Court and that therefore the issue automatically falls within the purview of the 1996 Judgment as constituting an integral part of res judicata established by the 1996 Judgment and is thus a priori precluded from the Court’s consideration at this stage. 25. In fact, all these points are reflected in the conclusions that the Court has drawn in its 2004 Judgment. In this sense what is stated above represents nothing more than a reconfirmation of the points enunciated by the Court in its 2004 Judgment. 26. Having thus stated my basic position, nevertheless I have to proceed to point out that there is yet one more element which would require further consideration by the Court on this question in the specific context of the present case. And I believe that this element constitutes the critical factor in distinguishing the present case from the 2004 Judgment on the Legality of Use of Force cases. The essential element for distinguishing the present case from the Legality of Use of Force cases in my view lies in the difference in the time-frame in which the Court has to look at the same problem of jus standi/access to the Court of Serbia and Montenegro in the Legality of Use of Force cases and in the present case. 27. In the Legality of Use of Force cases, the filing of the Application took place on 29 April 1999, and on that day a request for the indication of provisional measures of protection was submitted by the Applicant in that case, Serbia and Montenegro. The Court, by its Order of 2 June [p294] 1999, rejected this request on the ground that it had no prima facie jurisdiction to entertain the cases (I.C.J. Reports 1999 (I), p. 134, para. 26). Nothing further came about in the proceedings of the Court on these cases until well after 2000, when Serbia and Montenegro was admitted to the United Nations. It was in 2004 that the Court had the opportunity, for the first time on the occasion of its Judgment on Preliminary Objections in these cases, to engage in an overall examination of the question of jurisdiction in relation to these cases, including the issue of the access of the Applicant to the Court. 28. Under these circumstances, the Court, for the first time in 2004, was in a position to engage in an examination of the issue of jus standi of the Applicant in the context of the issue of the legal status of the then Federal Republic of Yugoslavia (hereinafter referred to as “the FRY”) from the viewpoint of whether the Applicant (i.e., Serbia and Montenegro) satisfied the conditions laid down in Articles 34 and 35 of the Statute and whether the Court was open to the Applicant. In the Judgment itself the Court declared for the first time in 2004 that “[o]nly if the answer to that question is in the affirmative will the Court have to deal with the issues relating to the conditions laid down in Articles 36 and 37 of the Statute of the Court” (see Legality of Use of Force, Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 299, para. 46). Based on a detailed examination of facts and law involved as they were known to the Court as of that time, the Court came out with the conclusion that the Applicant had not been a member of the United Nations during the critical period between 1999-2000 and thus did not satisfy the conditions laid down in Article 35 of the Statute. It thus followed that the Applicant could not have access to the Court, with the consequent result that the Court did not have jurisdiction to entertain these cases. 29. In coming to this conclusion, the Court was clearly aware that the Applicant in these cases, the FRY (Serbia and Montenegro), had in 2003 in the Revision of the 1996 Judgment case, put forward essentially the same argument that the Respondent in the instant cases was invoking, i.e., that the FRY had not been a party to the Statute at the date of institution of the proceedings in the Genocide Convention case in 1993. Against this, the Respondent in the Revision of the 1996 Judgment case, Bosnia and Herzegovina, argued, inter alia, that the 1996 Judgment on preliminary objections in the Genocide Convention case had the force of res judicata (cf. Written Observations of Bosnia and Herzegovina of 3 December 2001 on the Revision of the 1996 Judgment case, para. 5.36); that Serbia and Montenegro had acquiesced in the Court’s jurisdiction on the basis that it was a Member of the United Nations and party to the Statute and could not retract that position (ibid., paras. 4.4-4.7); that Serbia and Montenegro was precluded, whether on the basis of estoppel or of the general principle of good faith, from invoking its own mistake in interpreting the legal situation (ibid., para. 4.19). It also argued that [p295] the Court would have jurisdiction under Article 35, paragraph 2, of the Statute (Revision of the 1996 Judgment, paras. 5.1-5.27). 30. Nevertheless, in its Judgment on the Revision of the 1996 Judgment case the Court did not pronounce on any of these contentions for the simple reason that the Court decided that the task of the Court was to confine itself to the examination of the question whether a “new fact” had been adduced to satisfy the conditions required under Article 61 of the Statute. The Court, solely on that basis, rejected the application for revision of the Applicant, Serbia and Montenegro, as not satisfying the conditions under Article 61. It was during this same period following the new developments of 2000, which definitively clarified the legal status of FRY in and vis-à-vis the United Nations, that the Court in 2004 for the first time had the opportunity to address the issue of its competence to entertain the cases brought by the FRY as the Applicant, including the issue of the Applicant’s access to the Court. In light of the circumstances which had come to be clarified in the post-2000 period, the Court came to its well-known conclusion that it lacked jurisdiction because the Applicant lacked the jus standi to appear before the Court in light of the facts available to it as of that time. 31. By contrast, the legal situation surrounding the 1996 Judgment on preliminary objections in the present case was quite different. As already stated, in its Order of 8 April 1993 on the request for the indication of provisional measures, the Court determined that “while the solution adopted [in the United Nations as of that time] is not free from legal difficulties, the question whether or not Yugoslavia is a Member of the United Nations and as such a party to the Statute of the Court is one which the Court does not need to determine definitively at the present stage of the proceedings”(Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 14, para. 18; emphasis added). It was in 1996, well before 2000, that the Court, in its Judgment on Preliminary Objections made the finding that “on the basis of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, it has jurisdiction to adjudicate upon the dispute” (I.C.J. Reports 1996 (II), para. 47 (2) (a) (dispositif), p. 623). 32. This means that if we accept that this Judgment did dispose of all the issues relating to jurisdiction stricto sensu raised by the Respondent and declared that “it has jurisdiction to adjudicate upon the dispute”, then this decision could only mean as a matter of law that every process to be completed before the Court could proceed to the examination of the merits of the case had been completed in 1996, long before the legal [p296] situation regarding the status of the FRY became finally clarified in a new light in 2000. And this to my mind is the decisive difference that distinguishes the 1996 Judgment from the 2004 Judgment, both relating to the preliminary objections on jurisdiction. 33. It is true that the 1996 Judgment did not make any express reference, nor any express “definitive determination” by the Court with regard to the issue of the legal status of the Respondent vis-à-vis the Statute of the Court. Nevertheless, it is simply impossible to think that the Court was unaware of the issue surrounding the legal status of the Respondent (the issue of jus standi/access to the Court) which had already been identified and expressly referred to in its Order of 1993. Under such circumstances, the conclusion is inescapable that whatever the view of the Court may have been at the time of this 1996 Judgment on the issue of the legal status of the FRY during the relevant period between 1993 and 1996, the Court at the time of its 1996 Judgment at least did not put in question the capacity of the FRY to have access to the Court under the Statute. Since the issue of the capacity of a party to have the legal standing to appear before the Court has to be regarded as a question which logically precedes the issues relating to jurisdiction stricto sensu - i.e., the issues relating to jurisdiction ratione personae, ratione materiae and ratione temporis under the relevant legal instruments that afford the basis for jurisdiction of the Court in a concrete case - it would be impossible to argue as a matter of law that the Court itself, when it pronounced in its 1996 Judgment that “it had jurisdiction to adjudicate upon the dispute” - and not just prima facie jurisdiction but jurisdiction ratione personae, ratione materiae and ratione temporis - should be deemed to have left undecided, and kept open, what is the logical premise for such a pronouncement - i.e., the premise that the Respondent had the legal standing to appear before the Court, on whatever ground that might be. In other words, this Judgment has to be regarded in law as amounting to the “definitive determination” as referred to in its Order of 1993, as far as the present case is concerned. 34. It should be emphasized that this position is strictly to be distinguished from the one based on “tacit acceptance” or “implied acceptance” of jurisdiction. The only context in which this logic prevails is that the Court itself, by legal construction, must be deemed in law to have settled the issue of access to the Court, an issue which constitutes the logical prerequisite that the Court has to satisfy before it can proceed to the conclusion that it has jurisdiction ratione personae, ratione materiae, and ratione temporis. Without addressing that problem, the Court simply could not have proceeded to the examination of jurisdiction stricto sensu. 35. Furthermore, it would follow from this conclusion as long as we accept that the Court by legal construction has to be deemed to have made such “definitive determination”, though without specifically addressing it in the Judgment, the issue of access to the Court has to be regarded also as coming into the ambit of issues that constitute res judicata of the 1996 Judgment. [p297] 36. It might further be added that a case could be made that the parties, as well as the Court itself, until 2000 long after the 1996 Judgment, had been acting in reliance on the conclusion, induced by the Court itself, that the Respondent did indeed have the capacity to appear before the Court, and that this fact in itself constitutes an objective legal situation which can no longer be ignored at this stage by the parties and by the Court. 37. In a nutshell, my view on this question is that the Court itself, and not the Respondent, is precluded now from taking a different position at this stage which would be diametrically opposed to the one that the Court itself is deemed in law to have so definitively determined in the present case. The principle of consistency as an essential prerequisite for the stability of legal relations should support such an approach. III. THE NATURE OF OBLIGATIONS UNDER THE GENOCIDE CONVENTION 38. The Court, in paragraph 179 of the present Judgment, concludes that “[i]t affirms that the Contracting Parties are bound by the obligation under the Convention not to commit, through their organs or persons or groups whose conduct is attributable to them, genocide and the other acts enumerated in Article III” (Judgment, para. 179; emphasis added). 39. I agree with this finding of the Court in its present general formulation, and on this basis have voted in favour of the items of the dispositif relating to this point (dispositif, sub-paras. (2) to (5)). 40. At the same time, however, I wish to register here my position that while I accept the conclusion of the Court that the Respondent “through [its] organs or persons or groups whose conduct is attributable to [it]” (Judgment, para. 179) may not only incur international responsibility for acts of genocide or the other acts enumerated in Article III committed by such organs or persons or groups under international law, but also can be held to account before this Court for such internationally wrongful acts as falling within the jurisdiction of the Court under Article IX the Genocide Convention, I cannot agree with the legal ground on which the Judgment has arrived at this conclusion, inasmuch as the Judgment is primarily based on its finding on the scope of Article I of the Convention. 41. In the most crucial part of the Judgment which discusses this point of direct responsibility of the State for genocide, the Judgment declares as follows: “Under Article I [of the Genocide Convention] the States parties are bound to prevent such an act, which it describes as ‘a crime under international law’, being committed. The Article does not [p298] expressis verbis require States to refrain from themselves committing genocide. However, in the view of the Court, taking into account the established purpose of the Convention, the effect of Article I is to prohibit States from themselves committing genocide. Such a prohibition follows, first, from the fact that the Article categorizes genocide as ‘a crime under international law’: by agreeing to such a categorization, the States parties must logically be undertaking not to commit the act described. Secondly, it follows from the expressly stated obligation to prevent the commission of acts of genocide. That obligation requires the States parties, inter alia, to employ the means at their disposal, in circumstances to be described more specifically later in this Judgment, to prevent persons or groups not directly under their authority from committing an act of genocide or any of the other acts mentioned in Article III. It would be paradoxical if States were thus under an obligation to prevent, so far as within their power, commission of genocide by persons over whom they have a certain influence, but were not forbidden to commit such acts through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State concerned under international law. In short, the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide.” (Judgment, para. 166; emphasis added.) 42. In my view, there could be no question that under the general law of State responsibility international responsibility could certainly be incurred on the part of a State if an individual or an entity, acting as an organ of that State or in any other matter which makes the act attributable to the State, should be held responsible for this internationally wrongful act. 43. I also have no difficulty in accepting the proposition that the underlying basic principle of the Genocide Convention is that genocide as defined in the Convention is a heinous “crime under international law” (Art. I), which the States members of the international community, collectively as community and severally in their individual capacity, are obligated to prevent and punish, and a fortiori to forego its commission by themselves. 44. But I do not believe that it follows from this general proposition that the Convention, as such, therefore should by necessary implication be deemed to impose upon States parties an obligation under Article I that the State parties undertake not to commit an act of genocide and to accept direct international responsibility for such an act and be held to account under the Convention, despite the fact that the article does not contain any provision imposing such an obligation upon the States parties. The issue is not whether such an obligation on the part of States exists in contemporary international law or not; the issue is what is the [p299] source of such obligation if it exists, for the purposes of the present case. 45. It seems to me absolutely clear from the very title and the whole structure of the Convention that the object and purpose of the Convention is to make a solemn compact among the States parties to the Convention to “confirm that genocide [as defined by the Convention] is a crime under international law” and to “undertake to prevent and to punish” this international crime (Art. I), primarily focusing, as the concrete means to carry out this undertaking, on prosecuting individuals who are the actual culprits of the crime. We find no provisions in the Convention which prescribe an undertaking on the part of the States parties that they bind themselves to the obligation not to commit an act of genocide themselves and to assume direct responsibility directly for a breach of such obligation under the Convention. Since the Convention is a solemn compact among sovereign States, I do not believe that one can simply presume that such an undertaking is implicitly assumed by the States parties to the Convention when the Convention itself is totally silent on that point. 46. As the Permanent Court of International Justice declared in its famous dictum, it is one of the fundamental principles accepted in the contemporary international legal order that: “International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.” (“Lotus”, Judgment No. 9, 1927, P.C.I.J., Series A, No. 10, p.18; emphasis added.) 47. In the same vein, the same Court stated, in the context of a case in which the question at issue was whether the extent of autonomy granted by one of the parties under a treaty could be inferred when the treaty in question was silent, as follows: “the exercise of the [autonomous] powers necessitates the existence of a legal rule which cannot be inferred from the silence of the instrument from which the autonomy is derived, or from an interpretation designed to extend the autonomy by encroaching upon the operation of the sovereign power” (Interpretation of the Statute of the Memel Territory, Merits, Judgment, 1932, P.C.I.J., Series A/B, No. 49, p. 313; emphasis added). 48. Moreover, even if such a presumption were to be permissible in the present context, it would certainly be a rebuttable presumption. And it can indeed be rebutted in light of the legislative history of the Convention, as I am going to demonstrate in a moment. [p300] 49. Needless to say, in making this point I do not mean to suggest for a moment that under the current state of international law States are left free to commit an act of genocide. Nothing could be further from my own position on this question. The point is simply that the object and purpose of the Convention is to pursue the question of preventing and punishing the heinous act of genocide, which the international community is unanimous in abhorring and condemning, through an approach of treating it as an international crime and holding to account the individuals who are actual culprits of genocide for their criminal responsibility. 50. It is to be emphasized that this approach is also in line with the approach adopted by the International Military Tribunal at Nuremberg, which formed the crucial background for the Genocide Convention. The Tribunal famously stated that “crimes against international law are committed by men, not by abstract entities” (Judgment of the International Military Tribunal, Trial of Major War Criminals, 1947, Vol. 1, p. 223) and went on to punish the individuals involved, rather than the State as such. 51. Needless to say, there is no question that a State, as a legal entity, always acts in its name through individuals who are its organs and that such acts of these individuals constitute in law acts of the State. As a result, an act of such individuals acting as an organ of the State is to be identified as an act of the State in whose name they are acting, and could incur the international responsibility of the State concerned, if the act in question is something which can be characterized as an internationally wrongful act. Precisely for this reason, the Convention addresses that very issue in its Article IV. 52. But the issue here is a different one. Even granting that in a great number of cases of genocide, it is the State which is the real culprit behind the act even when the act in question is perpetrated as an act of the individual involved acting as an organ of that State, the question to ask in relation to the Convention is whether the Convention in its actual structure takes the approach of directly holding the State to account for the act which is declared to be an international crime under the Convention. In my view, the question to ascertain is which of the following three approaches the Convention, in dealing with the act of genocide, is adopting as the effective means of achieving the object and purpose of the Convention to prevent and punish genocide: (a) an approach of holding the individual who actually had a hand in the act in question to account for a crime of genocide, which requires the existence of dolus specialis on the part of the culprit as a matter of criminal law; (b) an approach of holding the State, in whose name the individual has committed the act, to account for an internationally wrongful act, under the international law of State responsibility; or (c) an approach of holding both the individual and the State to account consecutively. [p301] In any case it is clear that the Convention has rejected yet another possibility, i.e., (d) an approach to hold the State directly to account for an international crime of genocide, on the ostensible ground that a State cannot commit a crime in the penal sense. 53. On the basis of a natural interpretation of the provisions of the Convention having regard to the object and purpose of the Convention as reflected in its structure, and reinforced by its legislative history as demonstrated by the travaux preparatoires, I am persuaded by the conclusion that - setting aside for the moment the legal implication which came later to be introduced into the picture by an amendment to the language of Article IX (a point I am going to deal with later in this opinion) - all the evidence available to us points to the direction that the Convention in its original scheme followed the approach (a), i.e., the approach to pursue the goal of preventing and punishing and thus banishing genocide as an “international crime”, primarily through prosecuting the individuals who have committed the criminal act with dolus specialis, whether acting in the capacity as organs of State or otherwise. The provisions of Article IV clearly testify to this approach. Also the emphasis on dolus specialis as one essential constituent element of genocide as a crime specified in Article II also tends to confirm this interpretation. 54. It must be noted in this connection that there is nothing in this approach of the Convention which would logically contradict or exclude the proposition contained in the approach (b). As is stated above (paras. 41 et seq.), if an act committed by an individual, acting in his capacity as an organ of a State, amounts to an internationally wrongful act in the eyes of international law, the law of State responsibility attributes this act in question to the State for whom the individual has acted as its organ, thus incurring international responsibility of the State for that act. This, however, is a legal situation arising under the rules of general international law and is separate from the question of the scope of the obligations under the Convention as represented by the substantive provisions of the Convention (i.e., Arts. I-VII). In other words, the approach (b) would certainly be viable, based on the legal link that could exist under general international law between the rights of the State that suffers injury through its nationals who are victims of the crime of genocide to seek remedy for this internationally wrongful act on the one hand, and the obligations of the State for this internationally wrongful act on the other. 55. As a general proposition of the law on this legal nexus, I have no disagreement with the position enunciated in the Judgment when it pronounces as the following: “The Court observes that that duality of responsibility [i.e., the responsibility of an individual and the responsibility of the State on whose behalf the individual has acted, both existing side by side] continues to be a constant feature of international law. This feature [p302] is reflected in Article 25, paragraph 4, of the Rome Statute for the International Criminal Court, now accepted by 104 States: ‘No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law’. The Court notes also that the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts . . . affirm in Article 58 the other side of the same coin: ‘These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State’ . . .” (Judgment, para. 173). 56. However, I submit that this argument, while certainly valid, misses the point. The point at issue is not whether international law recognizes this “duality of responsibility” (ibid.), which it clearly does, but whether the Genocide Convention is based on such an approach based on “duality of responsibility” (ibid.) by holding the State to account directly under the Convention for its internationally wrongful act, as well as holding the individual to account for his crime of genocide as defined under the Convention. In my view the Convention leaves this first aspect relating to the direct responsibility of the State as falling outside the scope of the Convention, as far as the substantive provisions of the Convention are concerned. The Convention as such does not touch on this legal link and leaves the matter to general international law. 57. In this connection, it is to be noted that the Judgment states that “[t]he jurisdiction of the Court is founded on Article IX of the Convention, and the disputes subject to that jurisdiction are those ‘relating to the interpretation, application or fulfilment’ of the Convention, but it does not follow that the Convention stands alone”, and then goes on to say that: “In order to determine whether the Respondent breached its obligations under the Convention, as claimed by the Applicant, and if a breach is committed, to determine its legal consequences, the Court will have recourse not only to the Convention itself, but also to the rules of general international law on treaty interpretation and on responsibility of States for internationally wrongful acts.” (Judgment, para. 149.) 58. However, it has to be pointed out with regard to this approach of the Judgment that the issue of the rules of general international law on State responsibility is a separate issue of substance which is independent of the scope of Article I of the Convention in the present context, in the sense that the question of whether a certain act of a State constitutes a violation of the obligation undertaken by the State under Article I the Convention is one thing, while the question of whether the same act constitutes an internationally wrongful act under general international law is [p303] quite another, In deciding on the former issue, the latter question cannot be brought into play. In my view the question of State responsibility in this sense, which could certainly be brought into existence under general international law as a result of the commission of the crime of genocide by an individual, would be a distinct issue of responsibility of the State arising out of the link of attribution of the act in question to the State and not arising directly out of Article I of the Convention. Therefore it could come under the jurisdiction of the Court under Article IX of the Convention, only if it can be established that this aspect of State respon-sibility under general international law is brought into the ambit of the operation of Article IX, not as a matter of “interpretation, application or fulfilment of the Convention” but through some mechanism for incorporating this issue by reference into the scope of the jurisdiction of the Court. I do not believe that the Court can extend its jurisdiction to this issue of general international law automatically as if it were a logical sequence that can be incorporated into the scope of the jurisdiction of the Court through the process of interpretation on specific obligations provided for under the Convention. 59. In considering the matter in the present context, therefore, we have to examine the precise scope of the jurisdictional framework, within which the Court operates in the present case, as set by Article IX of the Convention. In this respect, the standard formula that one normally finds in a compromissory clause in many treaties - and indeed the formula that had been adopted in the original compromissory clause of the present Convention - would not allow us to go into this area of issues of general international law - i.e., the issues relating to international responsibility of a State for an internationally wrongful act emanating under general international law, but not under specific provisions of the treaty in issue. The issue would not fall within the operational scope of such compromissory clause which limits the jurisdiction of the Court to issues relating to “interpretation and application of the present Convention”. 60. The crucial question therefore is whether the added language in Article IX has changed this legal situation, especially from the viewpoint of the scope of the jurisdiction of the Court in such a way as to include within the ambit of the Convention the issue of State responsibility under general international law for internationally wrongful acts arising out of the commission of the crime of genocide by individuals specifically provided for under the Convention. 61. In order to ascertain this point, a close examination of the travaux preparatoires on the legislative history of this article would seem to be indispensable, given the fact that in particular the amended language of Article IX is so ambiguous as to render it “[devoid of] any meaningful sense” according to some. (See, e.g., the declaration of Judge Oda in the 1996 Judgment, I.C.J. Reports 1996 (II), p. 628, para. 5) In other words, here we are faced with a situation in which “the interpretation according [p304] to [the general rule of interpretation in accordance with] Article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.” (Vienna Convention on the Law of Treaties, Art. 32.) 62. As is well known, the particular language in question in Article IX, consisting, inter alia, of the addition of the phrase “including disputes relating to the responsibility of a State for any of the acts enumerated in Articles II and IV [present Article III]” was proposed by way of an amendment to Article X (present Article IX) of the original draft Convention by Belgium and the United Kingdom (United Nations doc. A/ C.6/258). This proposal for amendment was made in the course of the deliberation on the draft Convention in the Sixth Committee of the United Nations General Assembly, and was accepted by a narrow margin of 19 votes to 17, with 9 abstentions (United Nations, Official Records of the General Assembly, Third Session, Sixth Committee, Summary Record of the 104th meeting, p. 447). 63. However, in order properly to understand the scope of this amendment, it is necessary to go back to the pre-history to this development. Originally the United Kingdom had earlier proposed the following amendment to Article V (present Article IV): “Criminal responsibility for any act of genocide as specified in articles II and IV shall extend not only to all private persons or associations, but also to States, governments, or organs or authorities of the State or government, by whom such acts are committed. Such acts committed by or on behalf of States or governments constitute a breach of the present Convention.” (United Nations doc. A/C.6/ 236; emphasis added.) This proposal, while supported by Belgium, was met with a strong challenge from a number of delegations, including France, the United States, Canada and others, mainly on the ground that it was an attempt to apply the concept of criminal responsibility to States, and was rejected by 24 votes to 22. 64. The United Kingdom tried to reintroduce the same idea of direct responsibility of State in the form of an amendment to Article VI (present Article V) in the following words: “Where the act of genocide as specified by articles II and IV is, or is alleged to be the act of the State or government itself or of any organ or authority of the State or government, the matter shall, at the request of any other party to the present Convention, be referred to the International Court of Justice, whose decision shall be final and binding. Any acts or measures found by the Court to constitute acts of genocide shall be immediately discontinued or rescinded and [p305] if already suspended shall not be resume or reimposed.” (United Nations doc. A/C.6/236 and Corr.) It is not at all clear whether this amendment purported to deal with criminal responsibility of a State for its own commission of the crime of genocide - which seems to be the implication from the general context of the proposal - or tortious liability of a State for an act of genocide committed by the State - which seems to be the implication from its reference to the International Court of Justice - in this somewhat confused formulation. In any case, it seems clear from the language of the amendment that the same idea of holding a State to account for its own commission of the crime of genocide was retained, whereas the sponsor of the amendment would no longer seem to have intended to pursue criminal responsibility of a State, seeing that this time the amendment was proposed on the basis that the matter be referred to the International Court of Justice which by its Statute could not charge a State for its criminal responsibility. 65. Belgium, along the same line of approach, proposed an amendment to this United Kingdom text, which included the provision that “[t]he Court shall be competent to order appropriate measures to bring about the cessation of the imputed acts or to repair the damage caused to the injured persons or communities” (United Nations doc. A/C.6/252), presumably with the intention of making the purport of this amendment clear. 66. However, the United States raised a strong objection to this new proposal on the ground that the substance of the issue had already been debated and decided during the consideration of Article IV. Faced with this objection, Belgium and the United Kingdom withdrew their amendments; they instead developed a further new proposal, this time in the form of an amendment to Article X (present Article IX), which later became the basis for the present wording of Article IX. 67. It should be noted that throughout the whole debate on this issue, the focus was on whether a State could be held to account for the crime of genocide which was the focus of the Convention. The contention of the United Kingdom in its original position would seem to have been that in principle the State could and should be held to account for its own commission of the crime of genocide. The United Kingdom delegate made the remarks in the discussion to the effect that the United Kingdom, recognizing the reality that the domestic criminal procedure of a State simply could not be expected to be effective vis-à-vis its own State in a situation of the commission of genocide by the State itself, and emphasizing that there was no prospect whatsoever for an international tribunal to come into existence in the foreseeable future, thought it essential to provide for a recourse to the International Court of Justice, the only international court in existence at that juncture. It seems reasonable to infer from these [p306] remarks that the United Kingdom delegate tried in this new proposed amendment to Article X to find a hook to hang on to for achieving the objective that he had persistently pursued of holding a State to account for its own act of genocide, through devising a formula of linking this problem with the compromissory clause already in existence in the draft Convention for the reference of disputes to the International Court of Justice. It should be noted, however, that this jurisdictional clause contained in Article X (present Article IX) in its original form had been meant to be no more than a standard compromissory provision for the reference of a dispute relating to the interpretation and application of the provision of the Convention to the International Court of Justice, and as such would not be available for creating a new obligation of a substantive nature, where no such obligation had been incorporated in the substantive provisions of the Convention. 68. A perusal of the debate in the Sixth Committee in this confused situation makes me wonder whether the essential nature and the legal implications of the Belgium/United Kingdom amendment, seen within the framework of the basic object and purpose of the Convention which was to criminalize genocide committed by individuals and to create the obligations on the part of States to prevent and punish the crime of genocide, were sufficiently precisely conceived by the co-sponsors of the Bel-gium/United Kingdom amendment, and its impact upon the essential character and the scope of the Convention fully grasped by the delegates who voted for the amendment. It is interesting to note in this context that a great majority of the delegates who participated in the debate were in general consensus that this new formulation should not be aimed at criminalizing a State as such for perpetrating the act of genocide. It is however doubtful whether many of them (a notable exception being the delegate of the United States) gave enough thought to the question of compatibility of this approach with the essential character of the Convention as the legal instrument to penalize the crime of genocide committed by individuals on the international level. 69. As a result of this ambiguity brought into the present Article IX, some of them would seem to have interpreted the formula only to be declaratory of the traditional principle of State responsibility on the breach of specific treaty obligations, whereby a State is held responsible for its own breach of the obligations arising under the substantive provisions of the Convention. According to this interpretation, in a convention which dealt essential with criminal responsibility of individuals for genocide, as well as the specific obligation of the contracting States to prevent and punish the commission of genocide by such individuals within their jurisdiction, the reference to State responsibility in Article IX can only relate to the traditional sense of responsibility arising out of the breach of such obligation of State to prevent and punish under Article I. Thus, for example, the President of the United States, in presenting the Genocide Convention for advice and consent of the Senate on 16 June [p307] 1949, proposed such understanding as follows: “I recommend that the Senate give its advice and consent to ratification of the Convention - ‘with the understanding that article IX shall be understood in the traditional sense of responsibility to another state for injuries sustained by nationals of the complaining state in violation of principles of international law, and shall not be understood as meaning that a state can be held liable in damages for injuries inflicted by it on its own nationals’ ” (Department of State Bulletin, 4 July 1949). 70. Others would appear to interpret this formula as being constitutive of a new international legal norm whereby a State by its own action and in its own name can commit an internationally wrongful act of genocide, whether one calls it an “international crime”, an “international delict” or otherwise, for which it should be held internationally responsible. In this view, the Convention has established that a State can commit a crime of genocide by its own action, but the institutions for holding the State to account under the Convention are somewhat restricted. Apart from the political organs like the Security Council of the United Nations, the only international judicial organ available for holding a State committing genocide to account is the International Court of Justice, and it can do so only in a limited sense that it can hold the State to account for this act of genocide only in the form of civil/tortious liability, and not in the form of criminal responsibility. It is presumably with such interpretation in mind that the United Kingdom delegate spoke of the tenet of the proposed amendment on behalf of the co-sponsors as follows: “The delegations of Belgium and the United Kingdom [have] always maintained that the Convention would be incomplete if no mention were made of the responsibility of States for the acts enumerated in articles II and IV.” (United Nations, Official Records of the General Assembly, Third Session, Sixth Committee, p. 430.) 71. Whatever may be the correct reading of the legislative history, it must be accepted that the travaux preparatoires are totally inconclusive in shedding a definitive light on the precise legal scope of the State responsibility which came to be declared to fall within the jurisdiction of the Court. Based on the analysis of this extremely confused state of legislative history concerning Article IX in this respect, one can safely say that it seems hardly possible to come to a positive conclusion that the general intention of the parties who participated in the drafting of this Convention was to enact into the Convention, through this technical [p308] amendment to Article IX, a new substantive norm under the Convention, in addition to those enumerated therein, by which a State should be held to account for the act of genocide of its own commission, whether it be categorized as an “international crime” or “international delict”. Thus an interpretation is to be discounted that purports to suggest that under this new formula, a State can be held to incur direct responsibility in its own name as the perpetrator of genocide, even though the jurisdictional limit of the International Court of Justice makes the justiciability of this act of genocide by a State before the Court somewhat less than criminal responsibility for jurisdictional reasons. 72. On the other hand, the principle of interpretation expressed in the maxim ut res magis valeat quam pereat, often referred to as the rule of effectiveness would seem to dictate that we give to this amended language of Article IX its proper and rational meaning. Against the background of the legislative history, confused as it may be, and the professed motives of the co-sponsors for the proposed amendment to the extent that they seem to have been accepted or at any rate not contradicted by those who voted for it, it would seem reasonable to conclude that this amended language of Article IX has had the effect of somehow enlarging the scope of jurisdiction of the Court under the Convention. In my interpretation, what it has done by adding the words “including those [i.e., disputes] relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III” to the standard formula used for a compromissory clause of a similar kind is to bring into the Convention, albeit through a jurisdictional backdoor of Article IX, the justiciability of the question of State responsibility under general international law for an internationally wrongful act of genocide, classified as an international crime of individuals under the Convention, within the scope of the jurisdiction of the Convention. As a result, it is my conclusion that the Court is now competent to consider this issue of general international law as an issue under the Convention, provided that the act in question of the indi-vidual can be attributable to the State as its own act through the doctrine of attribution in the law of State Responsibility. 73. In light of the foregoing analysis, it is my position that the scope of the Convention in relation to the act of genocide should be as follows: (i) Article I prescribes the crime of genocide as an international crime to be punished by national courts and competent international tribunals on the basis of individual perpetrators, as well as lays down the legal obligation upon the contracting parties to prevent and punish such crime of genocide. (ii) The Convention excludes from its scope the issue of direct responsibility of a State for the commission of genocide as an international crime of the State even in its generic sense. This concept of direct [p309] responsibility of a State for genocide has to be rejected as being alien to the object and purpose of the Convention and thus as being outside the scope of the Convention. Even with the new formula incorporated in Article IX, a State cannot be held directly accountable for the perpetration of an act of genocide committed in its own name, whether that act of genocide may be categorized as a crime of the State or as an international delict of the State. (iii) However, the addition in Article IX of the new language to include the issue of “the responsibility of a State for any of the acts enumerated in Article III” within the scope of the jurisdiction of the Court is constitutive of a new mandate for the Court, though not a new substantive obligation for the contracting States, under the Convention. This is so to the extent that it had the effect of introducing an additional scope to the compromissory clause of Article IX, since the issue of accountability of a State arising under the law of State responsibility in general international law resulting from the criminal act of genocide committed by an individual or a group of individuals now falls within the compulsory jurisdiction of the Court. Article IX, as a compromissory clause, cannot create new substantive obligations to the contracting States in addition to those which are provided in substantive articles (Arts. I-VIII). It can however create a new procedural scope to the jurisdiction of the Court by including within the Court’s purview the obligations which it would not otherwise have, i.e., the obligations flowing to the State parties under general international law from the acts of individuals contemplated as punishable under the Convention. It is my view that it is on this basis, and not on the basis of Article I of the Convention, which forms a source of substantive obligations of the Contracting Parties, as the Judgment asserts, that the Court can proceed to examine the issue of State responsibility of the Respondent arising out of alleged acts of genocide committed by individuals and groups as well as entities, whose action can be attributable to the Respondent under the law of State responsibility. (Signed) Hisashi OWADA. [p310] SEPARATE OPINION OF JUDGE TOMKA [p312] INTRODUCTION 1. The Judgment of the Court closes a particularly tragic case. When the Court was seised of this case, the fratricidal war in Bosnia and Herzegovina was raging. Over a period of more than four years, the Parties now agree, the war claimed about 100,000 human lives, wounded countless others, and inflicted enormous material damage. It deeply affected people in the region, further generating mistrust and sometimes outright hatred between different ethnic and religious communities. It should never have happened. Unfortunately, it did. 2. The Government of Bosnia and Herzegovina turned to the Court 14 years ago, in March 1993, in the midst of the bloody conflict which was ravaging its territory. Among its most serious allegations, the Applicant, the Republic of Bosnia and Herzegovina, claimed that the Respondent, Yugoslavia (Serbia and Montenegro), engaged in multiple violations of obligations under Articles I to V of the Genocide Convention. The Government of Bosnia and Herzegovina also requested the Court twice in 1993 to indicate provisional measures. The Court did so. Unfortunately, the measures did not prevent further atrocities from being committed. The Court has now found that the breach of the obligations under Arti-cle I of the Genocide Convention occurred in July 1995. Yet, it was unable to prevent that breach or the ensuing violence. 3. The courts are usually powerless to stop wars. Wars always involve more than just legal disputes. In the United Nations system of collective security, it is the Security Council which bears primary responsibility for the maintenance of international peace and security. Courts usually can only sort out ex post the legal consequences of the wars provided they have jurisdiction over the particular case, and always within the strict limits of such jurisdiction. 4. The dispute before the Court has involved two States, but it is not only an inter-State dispute. It also has an intra-State dimension within Bosnia and Herzegovina. Political representatives of the Bosnian Serbs attempted in 1999 to withdraw the case, and have remained opposed to its continuance (see Judgment, paras. 19-25). On the day of the opening of the hearings 27 February 2006 the Court received a letter from Mr. Paravac, then Member of the Presidency of Bosnia and Herzegovina from the Republika Srpska. He informed the Court that the Parliament of Bosnia and Herzegovina did not approve financing for the expenses of Bosnia and Herzegovina’s legal team in the case from the federal budget, and that he had seised the Constitutional Court of Bosnia and Herzegovina to decide whether the authorization to institute proceedings in the International Court of Justice granted in 1993 by President Izetbegovic [p313] was in conformity with the Constitution. No further communication on this issue was received by the Court. This dimension of the case however did not have any bearing on its consideration and adjudication by the Court. I. THE COURT’S JURISDICTION 5. The Court in the Judgment affirms its jurisdiction on the ground that “the principle of res judicata precludes any reopening of the decision embodied in the 1996 Judgment” (Judgment, para. 140). I have serious misgivings about the Court’s reasoning and feel compelled to elaborate my views thereon. However, because I ultimately find, although on a different ground, that the Court has jurisdiction over this case, I have voted in favour of the first paragraph of the dispositif. 6. My misgivings are caused by the fact that the Court in 2003, after it had considered the “Initiative of Serbia and Montenegro to the Court to Reconsider ex officio Jurisdiction over Yugoslavia”, dated 4 May 2001, informed the Parties that “[s]hould Serbia and Montenegro wish to present further argument to the Court on jurisdictional questions during the oral proceedings on the merits, it w[ould] be free to do so” (letter of the Registrar of 12 June 2003, the text of which was approved by the Court, Judgment, para. 82). The Parties were also informed that, “as the Court has emphasized in the past, [it] is entitled to consider jurisdictional issues proprio motu”, and “must . . . always be satisfied that it has juris-diction, and must if necessary go into that matter proprio motu” (Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 52, para. 13). Finally the Court assured the Parties that it “w[ould] not give judgment on the merits in the present case unless it [was] satisfied that it ha[d] jurisdiction” (Judgment, para. 82). 7. The Court thus allowed the Respondent to raise the issue of its jurisdiction at the merits stage despite having upheld its jurisdiction in 1996 (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 623, para. 47), and having found the request for revision inadmissible in February 2003 (Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment, I.C.J. Reports 2003, p. 32, para. 75). 8. The position the Court communicated to the Parties in its June 2003 letter was in conformity with its jurisprudence and practice. For example, the Court stated in the Appeal Relating to the Jurisdiction of the ICAO Council that [p314] “[i]t is certainly to be desired that objections to the jurisdiction of the Court should be put forward as preliminary objections for separate decision in advance of the proceedings on the merits” (Judgment, I.C.J. Reports 1972, p. 52, para. 13; emphasis added). The Court’s language indicates that such timing is merely a desideratum, not a legal requirement. The Court later explained in Avena and Other Mexican Nationals (Mexico v. United States of America) that Article 79 of the Rules of Court, which states that any objection by the Respondent to the Court’s jurisdiction shall be made within three months of the delivery of the Memorial, “applies only to preliminary objections, as is indicated by the title of the subsection of the Rules which it constitutes” (Judgment, I.C.J. Reports 2004, p. 29, para. 24; emphasis added). As the Court further explained, “[a]n objection that is not presented as a preliminary objection in accordance with paragraph 1 of Article 79 does not thereby become inadmissible” (ibid.). And it added, “[h]owever, apart from such circumstances, a party failing to avail itself of the Article 79 procedure may forfeit the right to bring about a suspension of the proceedings on the merits, but can still argue the objection along with the merits” (ibid.; emphasis added). 9. The Court now states that “once [it] has made a determination . . . on a question of its own jurisdiction, that determination is definitive both for the parties to the case, in respect of the case (Article 59 of the Statute), and for the Court itself in the context of that case” (Judgment, para. 138). This statement of the Court seems to be a statement of a legal principle. Was the Court not aware of such a principle - although jura novit curia - when in June 2003 it informed the Parties that “[s]hould Serbia and Montenegro wish to present further argument to the Court on jurisdictional questions during the oral proceedings on the merits, it w[ould] be free to do so” (Judgment, para. 82; emphasis added). Moreover, the Court already in 2003 knew what arguments the Respondent intended to raise since they were developed in the 2001 Initiative. The key argument of the Court against the reconsideration of its jurisdiction is now based on the principle of res judicata. I do not believe that the issue can be resolved so simply. 10. The primary question which requires an answer is whether a party may raise a series of objections in successive phases of a case. This question is particularly relevant in the present case, since the Respondent [p315] (called the Federal Republic of Yugoslavia at that time) put forward in June 1995 seven preliminary objections concerning the Court’s jurisdiction to entertain the case and the Application’s admissibility. The Court dismissed six of these objections in its Judgment of 11 July 1996; the remaining one had been withdrawn by the Respondent during the oral proceedings on the preliminary issues of jurisdiction and admissibility. The question raised is not regulated by the Statute or the Rules of Court. But as a leading commentator on the work of the Court has suggested, “in an appropriate case, objections can be raised after the Court has upheld its jurisdiction in preliminary objection proceedings and after the proceedings on the merits have been resumed”. [FN1] In his view, “[t]he condition for this is that the new objection does not raise issues that have been decided with the force of res judicata in the judgment on the preliminary objections and does not require a further suspension of the proceedings on the merits”. [FN2] I find this view correct and it seems that the Court’s position in June 2003, as reflected in the Registrar’s letter, lends a further support to it. ------------------------------------------------------------------------------------------------- [FN1] S. Rosenne, The Law and Practice of the International Court, 1920-2005, 4th ed., Vol. II, “Jurisdiction”, 2006, p. 865, para. II. 225 (emphasis added). [FN2] Ibid. ------------------------------------------------------------------------------------------------- 1. Res Judicata: What Is Its Scope as Far as the 1996 Judgment Is Concerned ? 11. This brings me to the second major question - what is the scope of the res judicata nature of the 1996 Judgment? In that Judgment the Court rejected the following six preliminary objections of the Federal Republic of Yugoslavia: (i) that the Application was not admissible because “the events in Bosnia and Herzegovina to which [it] refer[red] constituted a civil war” and therefore “no international dispute exist[ed] within the terms of Article IX of the 1948 [Genocide] Convention”; (ii) that the Application was not admissible because “Mr. Alija Izetbegovic did not serve as the President of the Republic at the time when he granted the authorization to initiate proceedings” (the Court however did not specifically address another element of this objection, namely that “the authorization for the initiation and conduct of proceedings was granted in violation of the rules of internal law of fundamental significance”); (iii) that the Court had no jurisdiction because the Applicant was not a party to the 1948 Genocide Convention; (iv) that the Court had no jurisdiction because “the case in point [was] an internal conflict between three sides in which the FR of Yugoslavia [p316] was not taking part” and because “the claims contained in the ‘Submissions’ [were] based on allegations of State responsibility which f[ell] outside the scope of the Convention and of its compromissory clause”, and further because “there [was] no international dispute under Article IX of the 1948 [Genocide] Convention”; (v) that the Court lacked competence over the case before 14 December 1995, the date on which the two Parties recognized each other, and alternatively before 29 March 1993, the date on which Bosnia and Herzegovina’s notification of succession of 29 December 1992, which the Federal Republic of Yugoslavia considered to be the notification of accession, could have produced its effect; (vi) that the Applicant’s claims pertaining to the alleged acts or facts which occurred prior to 18 March 1993 - the date on which the Secretary-General of the United Nations sent to the parties of the Genocide Convention the depository notification informing of Bosnia and Herzegovina’s notification of succession - did not fall within the competence of the Court (I.C.J. Reports 1996 (II), pp. 606-608, para. 15). The Court considered the above-mentioned preliminary objections and rejected them all, thus finding “that, on the basis of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, it ha[d] jurisdiction to adjudicate upon the dispute” and “the Application . . . [was] admissible” (ibid., pp. 623-624, para. 47). 12. The conclusions of the Court regarding its jurisdiction are based on its consideration of the six preliminary objections raised. The principle of res judicata prevents the Respondent from raising again those issues which the Court already dealt with when it rejected the Federal Republic of Yugoslavia’s preliminary objections. It is useful to recall what the Court stated in the said Judgment: “The Court must, in each case submitted to it, verify whether it has jurisdiction to deal with the case, and, if necessary, whether the Application is admissible, and such objections as are raised by the Respondent may be useful to clarify the legal situation. As matters now stand, the preliminary objections presented by Yugoslavia have served that purpose. Having established its jurisdiction under Article IX of the Genocide Convention, and having concluded that the Application is admissible, the Court may now proceed to consider the merits of the case on that basis.” (Ibid., p. 622, para. 46; emphasis added.) Although the Court speaks of its duty to verify that it has jurisdiction, and notes that the objections raised may be useful for that purpose, the [p317] Court has seemingly limited the exercise of its duty of verification to the consideration and rejection of the Respondent’s preliminary objections. 13. As the Court now acknowledges, “[n]one of these objections was however founded on a contention that the FRY was not a party to the Statute at the relevant time; that was not a contention specifically advanced in the proceedings on the preliminary objections” (Judgment, para. 106). Apparently this was because: “Neither party raised the matter before the Court: Bosnia and Herzegovina as Applicant, while denying that the FRY was a Member of the United Nations as a continuator of the SFRY, was asserting before this Court that the FRY was nevertheless a party to the Statute . . .; and for the FRY to raise the issue would have involved undermining or abandoning its claim to be the continuator of the SFRY as the basis for continuing membership of the United Nations.” (Ibid.) I am convinced that the Court has not addressed this particular issue whether the Federal Republic of Yugoslavia was a party to the Statute. [FN3] Therefore, in my view, the Court’s 1996 decision can have no preclusive effect on the consideration of such issue at this stage. ------------------------------------------------------------------------------------------------- [FN3] See the joint dissenting opinion of three Members of the Court appended to this Judgment who were the only Members of the current Court also sitting on the Bench when the Court rendered its 1996 Judgment. ------------------------------------------------------------------------------------------------- 2. Access and Jurisdiction 14. In assessing whether this Court may adjudicate a case, it is important to recognize that the concept of access to the Court is not identical to that of jurisdiction ratione personae. 15. These two distinct concepts are reflected in the Court’s jurisprudence. In Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), the Court distinguished between jurisdiction and access to the Court by ascribing different purposes to two different acts. Specifically, the Court determined that while the bilateral Exchange of Notes of 19 July 1961 between the Governments of the Federal Republic of Germany and Iceland was “designed to establish jurisdiction of the Court over a particular kind of dispute”, the declaration of the Federal Republic of Germany of 29 October 1971, deposited with the Registrar on 22 November 1971, “provide[d] for access to the Court of States which are not parties to the Statute”, as required by Security Council resolution 9 of 15 October 1946 (I.C.J. Reports 1973, p. 53, para. 11). In its Order of 2 June 1999 in Legality of Use of Force (Yugoslavia v. Belgium), the Court also distinguished between jurisdiction and access when it stated that: [p318] “the Court, under its Statute, does not automatically have jurisdiction over legal disputes between States parties to that Statute or between other States to whom access to the Court has been granted; whereas the Court has repeatedly stated ‘that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction’ (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 101, para. 26); and whereas the Court can therefore exercise jurisdiction only between States parties to a dispute who not only have access to the Court but also have accepted the jurisdiction of the Court, either in general form or for the individual dispute con-cerned” (Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 132, para. 20; emphasis added). In its Order of 10 July 2002 in Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), the Court made the same distinction (Provisional Measures, I.C.J. Reports 2002, p. 241, para. 57). In the Legality of Use of Force cases, the Court stated that “a distinction has to be made between a question of jurisdiction that relates to the consent of a party and the question of the right of a party to appear before the Court under the requirements of the Statute, which is not a matter of consent” (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 295, para. 36). The Court then continued: “The question is whether as a matter of law Serbia and Montenegro was entitled to seise the Court as a party to the Statute at the time when it instituted proceedings in these cases. Since that question is independent of the views or wishes of the Parties, even if they were now to have arrived at a shared view on the point, the Court would not have to accept the view as necessarily the correct one.” (Ibid.; emphasis in the original.) And the Court concluded with an important dictum: “The function of the Court to enquire into the matter and reach its own conclusion is thus mandatory upon the Court irrespective of the consent of the parties and is in no way incompatible with the principle that the jurisdiction of the Court depends on consent.” (Ibid.) The Court further clarified the relationship between access and jurisdiction in the Legality of Use of Force Judgments when it stated: [p319] “The Court can exercise its judicial function only in respect of those States which have access to it under Article 35 of the Statute. And only those States which have access to the Court can confer jurisdiction upon it. It is the view of the Court that it is incumbent upon it to examine first of all the question whether the Applicant meets the conditions laid down in Articles 34 and 35 of the Statute and whether the Court is thus open to it. Only if the answer to that question is in the affirmative will the Court have to deal with the issues relating to the conditions laid down in Articles 36 and 37 of the Statute of the Court.” (Ibid., p. 299, para. 46.) 3. Did the Federal Republic of Yugoslavia Have Access to the Court in March 1993 ? 16. The issue of the Federal Republic of Yugoslavia’s access to the Court was not dealt with by the Court in its 1996 Judgment, either explicitly or implicitly. There was no doubt that Bosnia and Herzegovina was a Member of the United Nations in 1993, and ipso facto a party to the Statute of the Court. Accordingly the Court was then open to the Applicant. The status of the Federal Republic of Yugoslavia in the United Nations remained unclear and ambiguous. The Court was fully aware of that situation. In its Order of 8 April 1993 on provisional measures, having referred to Security Council resolution 777 (1992) and General Assembly resolution 47/1, as well as to the letter of interpretation of 29 September 1992 by the Legal Counsel of the United Nations (paras. 16 and 17 of the Order), the Court noted that “while the solution adopted [in the United Nations] is not free from legal difficulties, the question whether or not Yugoslavia is a Member of the United Nations and as such a party to the Statute of the Court is one which the Court does not need to determine definitively at the present stage of the proceedings” (I.C.J. Reports 1993,p.14, para. 18; emphasis added). But when has the Court definitively determined in the present case whether or not the Federal Republic of Yugoslavia was a Member of the United Nations on 20 March 1993, and as such a party to the Statute? In its 11 July 1996 Judgment on jurisdiction? I fail to see any paragraph in that Judgment dealing with this issue. As the Court plainly admits “[n]othing was stated in the 1996 Judgment about the status of the FRY in relation to the United Nations, or the question whether it could participate in proceedings before the Court” (Judgment, para. 122). I believe that the Court avoided the determination of that question since the situation remained unclear and ambiguous and the two competent [p320] political organs of the United Nations in matters of membership, the Security Council and the General Assembly, did nothing to further clarify the membership status of the Federal Republic of Yugoslavia by the time the Court rendered its decision in 1996. So, the Court did not address the issue in order not to pre-empt (or prejudge) the position the Security Council and the General Assembly might have taken subsequently. [FN4] ------------------------------------------------------------------------------------------------- 4 As an informed commentator who served as Legal Adviser of the United Kingdom’s Permanent Mission to the United Nations between 1991-1994 (writing in his personal capacity with a usual disclaimer), opined, “the Council and Assembly have not tied themselves to any particular resolution of the matter. At some point the political momentum will exist to regularize the FRY’s position in the United Nations. There would seem to be essentially two ways of doing this. The FRY could apply for membership as the other former Yugoslav states have done. This appears to be what was envisaged by the Council and the Assembly in 1992, and in the Legal Counsel’s letter... In the alternative, the relevant organs might accept continued FRY membership without insisting on a formal application, for example by reversing the non-participation decisions of 1992 and 1993. This would probably be explicitly ‘without prejudice to questions of State succession’. It could be done by a decision of the relevant organs as a pragmatic solution to a difficult situation.” (M. C. Wood, “Participation of Former Yugoslav States in the United Nations and in Multilateral Treaties”, in Max Planck Yearbook of United Nations Law, Vol. 1, 1997, pp. 250-251.) ------------------------------------------------------------------------------------------------- 17. The Court instead could have relied on its preliminary view expressed in paragraph 19 of its 8 April 1993 Order. In that paragraph, after quoting the text of Article 35, paragraph 2, of the Statute, it stated: “the Court therefore considers that proceedings may validly be instituted by a State against a State which is a party to such a special provision in a treaty in force, but is not party to the Statute, and independently of the conditions laid down by the Security Council in its resolution 9 of 1946” (I.C.J. Reports 1993, p. 14, para. 19). The Court then continued that “Article IX of the Genocide Convention relied on by Bosnia-Herzegovina in the present case, could,inthe view of the Court, be regarded prima facie as a special provision con-tained in a treaty in force” (ibid.; emphasis added). The Court concluded, “accordingly if Bosnia-Herzegovina and Yugoslavia are both parties to the Genocide Convention, disputes to which Article IX applies are in any event prima facie within the jurisdiction ratione personae of the Court” (ibid.). The text itself indicates that such a view of the Court on Article IX of the Genocide Convention in its possible relation to Article 35, para[p321]graph 2, of the Statute was a provisional one (“prima facie”), and not conclusive of the matter. [FN5] ------------------------------------------------------------------------------------------------- [FN5] S. Rosenne, The Law and Practice of the International Court, 1920-1996, 3rd ed., Vol. II, “Jurisdiction”, 1997, p. 630. ------------------------------------------------------------------------------------------------- In these circumstances one would have expected the Court to deal with the matter in more depth in its 1996 Judgment. But since the matter was not raised by the Parties, the Court, although aware of its only prima facie view in the 1993 Order, did not determine the matter definitively. In fact, no attention was paid to the issue in the text of the 1996 Judgment. 18. The Court did not consider the issue of a “special provision in a treaty in force” until 2004 when several respondents in the Legality of Use of Force cases contended that Serbia and Montenegro could not rely upon the text of Article 35, paragraph 2, and that the view of the Court on this issue in its Order of 8 April 1993 was only provisional. The Court therefore considered it appropriate, in the circumstances of the Legality of Use of Force cases, to examine in detail Article 35, paragraph 2, of the Statute and interpreted it, on the basis of a detailed study of the travaux préparatoires, concluding that “the reference in Article 35, paragraph 2, of the Statute to ‘the special provisions contained in treaties in force’ applies only to treaties in force at the date of the entry into force of the Statute, and not to any treaties concluded since that date” (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 324, para. 113). On this reasoning, Article 35, paragraph 2, of the Statute thus could not have provided the Federal Republic of Yugoslavia with access to the Court at any point in time for matters relating to the Genocide Convention because the Convention was not concluded until after the Court’s Statute entered into force. 19. The Court has once more recounted the intriguing history of the status of the Federal Republic of Yugoslavia vis-à-vis the United Nations (Judgment, paras. 88-99). But while in the Legality of Use of Force cases the Court determined that the Federal Republic of Yugoslavia “has the status of membership in the United Nations as from 1 November 2000” and that “the sui generis position” of the Federal Republic of Yugoslavia, referred to in the Application for Revision Judgment, “could not have amounted to its membership in the Organization” and, on the basis of that determination, concluded that “Serbia and Montenegro was not a Member of the United Nations, and in that capacity a State party to the Statute of the International Court of Justice, at the time of filing its Application to institute [p322] the... proceedings before the Court on 29 April 1999” (Legality of Use of Force (Serbia and Montenegro v. Belgium), Judgment, I.C.J. Reports 2004, pp. 310-311, paras. 78 and 79), in its current recount, for the purposes of the present case, the Court ends “the story” with the 2003 Judgment in the Application for Revision case. 20. The majority of the Court is unable to demonstrate that in the 1996 Judgment the Court determined that the Federal Republic of Yugoslavia had access to the Court. The Court itself acknowledged this fact when it observed in the Judgments rendered on 15 December 2004 in the Legality of Use of Force cases that “in its Judgment on Preliminary Objections of 11 July 1996 . . . [t]he question of the status of the Federal Republic of Yugoslavia relation to Article 35 of the Statute was not raised and the Court saw no reason to examine it” (ibid., para. 82; emphasis added). Further, in those eight Judgments, it stated that “[t]he Court did not commit itself into a definitive position on the issue of the legal status of the Federal Republic of Yugoslavia in relation to the Charter and the Statute in its pronouncements in incidental proceedings, in the cases [one of them being the present one] involving this issue which came before the Court during this [19922000] period” (ibid., p. 309, para. 74). 21. Now the Court tells the Parties to accept the determination in the 1996 Judgment “that it had jurisdiction under the Genocide Convention is ... to be interpreted as incorporating a determination that all the conditions relating to the capacity of the parties to appear before it had been met” (Judgment, para. 133). It is so because, in the view of the majority, the finding of the Court that it has jurisdiction “must as a matter of construction be understood, by necessary implication, to mean that the Court at that time perceived the Respondent as being in a position to participate in cases before the Court” (ibid., para. 132; emphasis added). The reality apparently has no relevance for the majority; what is decisive is the perception the Court might have had in 1996, which is now being explained ex post by way of construction by implication. I am not convinced by this strained reasoning. 22. The Respondent suggested that the Federal Republic of Yugoslavia’s capacity to appear before the Court was merely an “assumption” in the 1996 Judgment (ibid., para. 134). The majority, while not denying that assumption, replies that the Federal Republic of Yugoslavia’s “capacity to appear before the Court in accordance with the Statute was an element in the reasoning” of the 1996 Judgment (ibid., para. 135; emphasis [p323] added). That element is nowhere to be found in the 1996 Judgment. But this is of no consequence since, according to the majority, this element “can and indeed must be read into the judgment” (ibid., para. 135, emphasis added). The majority operates a distinction between the “judicial truth” and reality. How otherwise can one understand the insistence on the maxim “res judicata pro veritate habetur, that is to say that the findings of a judgment are . . . to be taken as correct”, whatever doubt may be “thrown on them by subsequent events” (ibid., para. 120). 23. The majority now acknowledges only one exception to the finality of the Court’s judgments, both on jurisdiction and on the merits - that of a revision procedure under the Statute. The Court, on 3 February 2003, rejected the Respondent’s request for the revision. I remain puzzled as to why then, on 12 June 2003, it allowed one of the Parties to raise additional arguments on jurisdiction during the oral proceedings on the merits of the case. Was it then not aware that such an attempt would be destined to fail since once the Court determined the “judicial truth”, it was “subject only to the provision in the Statute for revision of judgments” (Judgment, para. 139)? In my conscience I am unable to follow such an approach and, to my regret, to subscribe to the reasoning advanced by the majority. 4. Ascertaining of the Court’s Jurisdiction de novo 24. The Court, in my view, should have determined de novo whether it has or lacks jurisdiction in the present case. By revisiting the issue of its jurisdiction the Court would have acted in line with the assurances it gave to the Parties in June 2003 that it “w[ould] not give judgment on the merits in the present case unless it [was] satisfied that it ha[d] jurisdiction” (Judgment, para. 82). My point of departure is the Court’s determination that the Federal Republic of Yugoslavia became a Member of the United Nations as from 1 November 2000 (ibid., para. 83, with reference to Legality of Use of Force, I.C.J. Reports 2004, p. 311, para. 79), and that the Federal Republic of Yugoslavia’s sui generis position, during 1992-2000, in the United Nations “could not have amounted to its membership in the Organization” (I.C.J. Reports 2004, p. 310, para. 78). The Federal Republic of Yugoslavia was thus not a party to the Statute of the Court during that period and it has become party to it only as from 1 November 2000. As such, the Federal Republic of Yugoslavia was not a party to the Statute when the Court rendered its 1993 Orders on interim measures of protection and the 1996 Judgment on jurisdiction and admissibility. What is the source of the binding nature of these Court’s decisions on the Federal Republic of Yugoslavia if not the Statute? But when they were rendered the Federal Republic of Yugoslavia was not a party to it. [p324] 25. The key question is whether the Federal Republic of Yugoslavia was a party to the Genocide Convention in 1993 since the Applicant claims that the Court has jurisdiction under Article IX of that Convention. It is the compromissory clause contained therein which confers jurisdiction on the Court. By being a party to the Statute of the Court a State does not eo ipso consent to the Court’s jurisdiction. That consent is to be expressed through a different act. But being a party to the Statute is an important prerequisite for the exercise of the Court’s jurisdiction and its judicial function. As the Court explained, it “can exercise its judicial function only in respect of those States which have access to it under Article 35 of the Statute” (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 299, para. 46). Since the Federal Republic of Yugoslavia was not a party to the Statute until 1 November 2000, the Court should not have exercised, in 1993 or in 1996, its judicial function in relation to the Federal Republic of Yugoslavia even if it might have had jurisdiction over it. Since 1 November 2000, the date on which the Federal Republic of Yugoslavia became a Member of the United Nations, and ipso facto party to the Statute of the Court, there has been no bar for the Court to exercise its judicial function vis-à-vis the Federal Republic of Yugoslavia (Serbia and Montenegro). Therefore the Court has to determine whether the Federal Republic of Yugoslavia was bound by Article IX of the Genocide Convention on 20 March 1993 when Bosnia and Herzegovina filed its Application in the present case. If that was the case, and the Federal Republic of Yugoslavia remained bound by the Genocide Convention through the period relevant to the claims of Bosnia and Herzegovina (1992-1995), all the conditions would now be fulfilled for the adjudication of the case on the merits. 26. The Court, of course, always has to satisfy itself that the requirements of its Statute are fulfilled for the exercise of its judicial function. These requirements are mandatory for the Court as a court of law. On the other side, the Court, like its predecessor the Permanent Court of International Justice, has on several occasions applied the principle that it should not penalize a defect in a procedural act which the applicant could easily remedy, or allow itself to be hampered by a mere defect of form, the removal of which depends on the party concerned (cf. Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925, P.C.I.J., Series A, No. 6, p. 14). In Mavrommatis Palestine Concessions, the Permanent Court considered whether the validity of the institution of proceedings could be disputed on the ground that the application was filed before the treaty instrument relied on by the applicant had become applicable. It stated that: “[e]ven assuming that before that time the Court had no jurisdiction because the international obligation referred to in Article II was not yet effective, it would always have been possible for the applicant to [p325] re-submit his application in the same terms after the coming into force of the Treaty of Lausanne, and in that case, the argument in question could not have been advanced. Even if the grounds on which the institution of proceedings was based were defective for the reason stated, this would not be an adequate reason for the dismissal of the applicant’s suit. The Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they might possess in municipal law. Even, therefore, if the application were premature because the Treaty of Lausanne had not yet been ratified, this circumstance would now be covered by the subsequent deposit of the necessary ratifications.” (Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 34; emphasis added.) In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), when dealing with the United States argument that an attempt to adjust the dispute was a prerequisite of its submission to the Court, as provided for in the compromissory clause, the Court observed that “it does not necessarily follow that, because a State has not expressly referred in negotiations with another State to a particular treaty as having been violated by conduct of that other State, it is debarred from invoking a compromissory clause in that treaty. The United States was well aware that Nicaragua alleged that its conduct was a breach of international obligations before the present case was instituted; and it is now aware that specific articles of the 1956 Treaty are alleged to have been violated. It would make no sense to require Nicaragua now to institute fresh proceedings based on the Treaty, which it would be fully entitled to do.” (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, pp. 428-429, para. 83; emphasis added.) The Court has also applied this principle in the present case. In its 1996 Judgment, leaving aside now any potential repercussions of the Respondent’s lack of access to the Court at that time on this decision, the Court, replying to the preliminary objection of the Respondent based on the argument that the Convention was not operative between Bosnia and Herzegovina and the Federal Republic of Yugoslavia prior to their mutual recognition on 14 December 1995, stated that: “even if it were established that the Parties, each of which was bound by the Convention when the Application was filed, had only been bound as between themselves with effect from 14 December 1995, the Court could not set aside its jurisdiction on this basis, inasmuch as Bosnia and Herzegovina might at any time file a new application, identical to the present one, which would be unassailable in this [p326] respect” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 614, para. 26; emphasis added). 27. Applying this principle, as confirmed by the jurisprudence of the Court, to the present case, Bosnia and Herzegovina could have “resubmitted” its application “in the same terms” at any time since 1 November 2000 but “it would make no sense to require [it] now to institute fresh proceedings . . . which it would be fully entitled to do” and its Application “would be unassailable” in respect of access to the Court. And if the original Application on 20 March 1993 was premature because the Respondent was not then a party to the Statute and did not have access to the Court, “this circumstance would now be covered” by the subsequent admission of the Federal Republic of Yugoslavia to the United Nations and its becoming a party to the Statute of the Court. 28. It is true that in eight Legality of the Use of Force cases, once the Court had concluded that the applicant did not have access to the Court at the time of the institution of the proceedings, it determined that such conclusion made it unnecessary to consider the other preliminary objections filed by the respondent to the jurisdiction of the Court (I.C.J. Reports 2004, pp. 327-328, para. 127). In those cases, however, whatever title of jurisdiction the applicant might have invoked, it “could not have properly seised the Court, . . . for the simple reason that [it] did not have the right to appear before the Court” (ibid., p. 299, para. 46; emphasis added). As G. Fitzmaurice wrote, “if a tribunal has not been duly seised it is incompetent to hear the case. But it does not follow that because the tribunal is duly seised, and has therefore the seisin of the case, it possesses on that account substantive jurisdiction and competence to hear and determine it on the merits. What seisin gives is jurisdiction and competence to determine this very point.” [FN6] ------------------------------------------------------------------------------------------------- [FN6] G. Fitzmaurice, The Law and Procedure of the International Court of Justice, 1986, Vol. II, pp. 440-441. ------------------------------------------------------------------------------------------------- 29. In the present case, the Applicant (Bosnia and Herzegovina) had access to the Court on 20 March 1993 when it filed its Application and thus could have “properly seised the Court”. The Court therefore has competence to determine whether it has jurisdiction under Article IX of the Genocide Convention. As long as the Respondent was not a party to the Statute, the Court should not have exercised its function in relation to that State, even if it might have had jurisdiction. But now that the Respondent has been, since 1 November 2000, a party to the Statute, there is no impediment for the exercise of the Court’s function and jurisdiction in a case in which the Applicant seised it properly. [p327] 30. Furthermore in the Legality of Use of Force cases the principle that the Court should not penalize a defect in a procedural act which the Applicant could easily remedy was not resorted to because the Applicant could have hardly resubmitted its Application since it asserted in its written observations on the Respondent’s preliminary objections that “it was not bound by the Genocide Convention until it acceded to that Convention (with a reservation to Article IX) in March 2001” (I.C.J. Reports 2004, p. 293, para. 29). Under Article 38, paragraph 2, of the Rules of the Court, “[t]he application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based”. What would have been specified as a legal ground for jurisdiction in that new Application? The Applicant contended that “the position of the FRY with regard to international organizations and treaties has been a most intricate and controversial matter”, so that “[o]nly a decision of this Court could bring clarity” (ibid., p. 295, para. 37). The Court on this point observed that the function of a decision of the Court is “not to engage in a clarification of a controverted issue” (ibid., pp. 295-296, para. 38). 31. The Court in 1996 concluded that the Federal Republic of “Yugoslavia was bound by the provisions of the [Genocide] Convention on the date of the filing of the Application in the present case, namely, on 20 March 1993” (I.C.J. Reports 1996 (II), p. 610, para. 17). Before reaching that conclusion, the Court first recalled that the Socialist Federal Republic of Yugoslavia signed the Convention and later, on 29 August 1950, deposited its instrument of ratification, without reservation. Then it recalled a formal declaration adopted “[a]t the time of the proclamation of the Federal Republic of Yugoslavia, on 27 April 1992” (ibid.). In that declaration, it was stated that: The Federal Republic of Yugoslavia, continuing the State, international legal and political personality of the Socialist Federal Republic of Yugoslavia, shall strictly abide by all the commitments that the Socialist Federal Republic of Yugoslavia assumed internationally.” (I.C.J. Reports 1996 (II), p. 610, para. 17.) The Court remaining neutral, or rather “mute”, on the issue of continuity of the international legal personality, limited itself to the observation that: “This intention thus expressed by Yugoslavia to remain bound by the international treaties to which the former Yugoslavia was party was confirmed in an official Note of 27 April 1992 from the Permanent Mission of Yugoslavia to the United Nations, addressed to the Secretary-General.” (Ibid.; emphasis added.) The word remain chosen by the Court in 1996, however, can describe both situations: (a) when there is the continuity in international legal [p328] personality of a State, such State remains bound by its treaties; but also, (b) when a succession of a State occurs in cases of separation of parts of a State, irrespective of whether or not the predecessor State continues to exist, any treaty in force on the date of the succession of States in respect of the territory of the predecessor State remains binding in respect of each successor State. To be more precise, Article 34 of the 1978 Vienna Convention on Succession of States in Respect of Treaties uses the term “continues in force”. The Court finally observed that “it has not been contested that Yugoslavia was party to the Genocide Convention” (I.C.J. Reports 1996 (II), p. 610, para. 17). The Federal Republic of Yugoslavia’s claim of continuing the international legal personality of the former Socialist Federal Republic of Yugoslavia did not prevail. [FN7] In fact, by applying in October 2000 for admission to membership in the United Nations, the Federal Republic of Yugoslavia abandoned that claim. The Federal Republic of Yugoslavia thus could not have remained bound by the Genocide Convention on the basis of continuing the international legal personality of the former Yugoslavia. Has it remained bound by the Genocide Convention on the basis of ipso jure succession? ------------------------------------------------------------------------------------------------- [FN7] 7 See B. Stern, “Les questions de succession d’Etats dans l’affaire relative à l’Application de la Convention pour la prévention et la répression du crime de génocide devant la Cour internationale de Justice”, Liber Amicorum Judge Shigeru Oda, N. Ando et al. (eds.), Vol. 1, 2003, pp. 285-305, and her view that “as Yugoslavia was admitted to the United Nations as a new member, any continuation of the former Yugoslavia was thus denied” [translation by the Registry] (p. 289). ------------------------------------------------------------------------------------------------- Article 34 of the 1978 Vienna Convention on Succession of States in Respect of Treaties in its first paragraph provides: “When a part or parts of the territory of a State separate to form one or more States, whether or not the predecessor State continues to exist: (a) any treaty in force at the date of the succession of States in respect of the entire territory of the predecessor State continues in force in respect of each successor State so formed.” Since the Vienna Convention was not yet in force in 1992, when the Federal Republic of Yugoslavia’s succession occurred, the question to be asked is that of the nature of the rule of ipso jure succession laid down by Article 34. Article 34 of the Convention, under one single heading “Succession of States in cases of separation of parts of a State”, deals both with the dissolution of States, in which the predecessor State ceases to exist, and with the separation of part (or several parts) of the territory of a State, in which one or more new States appear but in which the predecessor State continues to exist. Sir Francis Vallat, the former Special Rapporteur of the International [p329] Law Commission (ILC) and the Expert Consultant of the Vienna Codification Conference, explained that, while the 1972 Draft Articles contemplated the application of the principle of continuity in the event of dissolution and that of the “clean slate” for the new State emerging from a secession, the ILC ultimately decided - in the light of the comments by States on the Draft Articles - to make the two categories subject to one single régime, that of the ipso jure succession. It found that there is a “legal nexus between the new State and the territory which had existed prior to the succession, and that it would therefore be contrary to the doctrine of the sanctity of treaties to apply the ‘clean slate’ principle except in special circumstances”. [FN8] ------------------------------------------------------------------------------------------------- [FN8] United Nations Conference on Succession of States in Respect of Treaties, Vol. II, 47th Meeting, p. 104, para. 36. ------------------------------------------------------------------------------------------------- The “special circumstances”, according to the Commission, were those which characterized the secessions effected in conditions similar to those of decolonization, but not cases of dissolution of States. [FN9] ------------------------------------------------------------------------------------------------- [FN9] Ibid., p. 105, para. 1. ------------------------------------------------------------------------------------------------- In its Commentary, the ILC, as regards to dissolution, stated that: “It considered that today every dissolution of a State which results in the emergence of new individual States should be treated on the same basis for the purpose of the continuance in force of treaties. The Commission concluded that although some discrepancies might be found in State practice, still that practice was sufficiently consistent to support the formulation of a rule which, with the necessary qualifications, would provide that treaties in force at the date of the dissolution should remain in force ipso jure with respect to each State emerging from the dissolution. The fact that the situation may be regarded as one of ‘separation of part or parts of a State’ rather than one of ‘dissolution’ does not alter this basic conclusion.” [FN10] ------------------------------------------------------------------------------------------------- [FN10] Yearbook of the International Law Commission, 1974, Vol. II, Part One, p. 265, para. 25. ------------------------------------------------------------------------------------------------- At the Conference, the discussions focused on the question whether the principle of ipso jure succession applies to secession or, as the case may be, to secession effected in circumstances similar to those of decolonization, for which certain delegations preferred the “clean slate” principle 11. Other delegations proposed that the principle of ipso jure succession should be extended to include the latter cases also. Many of them indicated [p330] that, in their view, the “clean slate” principle only applies in the event of decolonization. ------------------------------------------------------------------------------------------------- [FN11] United Nations Conference on Succession of States in Respect of Treaties, Vol. II, 40th, 42nd, 47th and 49th Meetings, pp. 50 et seq. ------------------------------------------------------------------------------------------------- Although the discussions reveal certain divergences regarding the application of the rule of ipso jure succession to treaties to all the very diverse situations covered by Article 34, the nucleus of this provision concerning the dissolution of States has not met with any serious objection. Therefore, in my view, the rule of ipso jure succession to treaties for cases involving the dissolution of a State may be considered a rule of customary international law. [FN12] ------------------------------------------------------------------------------------------------- [FN12] A. Zimmermann, in his 960-page Habilitationsschrift, Staatennachfolge in völkerrechtliche Verträge: Zugleich ein Beitrag zu den Möglichkeiten und Grenzen völkerrechtlicher Kodifikation (2000), summarizing his analysis, concluded that: “With regard to the principle of universal succession for instances of both, separation or dismemberment, as laid down in Article 34 of the Vienna Convention ..., a distinction has to be drawn. With regard to complete dismemberments of a State, that principle had already in 1978 been strongly rooted in State practice. With regard to separations, however, it has to be qualified as one of the novelties of the convention, since in most previous cases the States concerned had applied the clean slate rule.” (Op. cit., p. 860; emphasis in original.) ------------------------------------------------------------------------------------------------- 34. The former Socialist Federal Republic of Yugoslavia agreed that the rule of ipso jure succession, codified in Article 34 of the Vienna Convention, at least for cases of the dissolution of a State (while for cases of secession it was rather a step in the progressive development of international law), shall be the rule to be applied for future cases of succession of States by signing and later, on 28 April 1980, ratifying the Vienna Convention on Succession of States in Respect of Treaties. Perhaps then it could hardly contemplate that a decade later the issue of succession would become so relevant to its case. It is true that the Vienna Convention did not enter into force until 6 November 1996, and by virtue of its Article 7, paragraph 1, applies only in respect of a succession of States which has occurred after its entry into force. All five successor States of the former Yugoslavia notified of their succession to the Vienna Convention on Succession of States in Respect of Treaties and are thus parties to it. Serbia and Montenegro did so on 12 March 2001, the same date that it notified of its succession to a great number of conventions deposited with the Secretary-General of the United Nations, and selected from the treaties and conventions deposited with him just one instrument, the Genocide Convention, in relation to which it deposited concurrently its instrument of accession with a reservation to Article IX. 35. There can be no doubt that this decision to notify of the accession [p331] to the Genocide Convention, with a reservation to Article IX and not succession (where no reservation is allowed) was motivated by the considerations relating to the present case. It was intended to prevent a claim that Serbia and Montenegro had obligations under the Genocide Convention prior to June 2001 (in particular, substantive obligations in the period of 1992-1995, relevant for the claims of Bosnia and Herzegovina). This decision was also intended to avoid the jurisdiction of the Court under Article IX, not only for that period, but also for the future until the reservation was eventually withdrawn. Bosnia and Herzegovina timely objected to the Federal Republic of Yugoslavia’s notification of accession to the Genocide Convention with a reservation to Article IX. That single notification of accession, in my view, was totally inconsistent with the succession by the Federal Republic of Yugoslavia - notified the very same day to the United Nations Secretary-General as accession to the Genocide Convention - to the Vienna Convention on Succession of States in Respect of Treaties, which in Article 34 provides that the treaties of the predecessor State continue in force in respect of each successor State. By the latter notification of succession, the Federal Republic of Yugoslavia became a contracting State of the Vienna Convention on Succession of States in Respect of Treaties as of April 1992. That Convention entered into force on 6 November 1996. Although not formally applicable to the process of the dissolution of the former Yugoslavia, which occurred in the 1991-1992 period, in light of the fact that the former Yugoslavia consented to be bound by the Vienna Convention already in 1980, and the Federal Republic of Yugoslavia has been a contracting State to that Convention since April 1992, one would not expect, by analogy to Article 18 of the Vienna Convention on the Law of Treaties, a State which, through notification of its accession, expresses its consent to be considered as bound by the Vienna Convention on Succession of States in Respect of Treaties to act in a singular case inconsistently with the rule contained in Article 34 of that Convention, while in a great number of other cases to acting in full conformity with that rule. These considerations, taken together, lead me to the conclusion that the Court should not attach any legal effect to the notification of accession by the Federal Republic of Yugoslavia to the Genocide Convention, and should instead consider it bound by that Convention on the basis of the operation of the customary rule of ipso jure succession codified in Article 34 as applied to cases of the dissolution of a State. 36. Since I consider the Respondent to be party to the Genocide Convention since April 1992 and party to the Statute of the Court since 1 November 2000, both conditions (of access and jurisdiction) being thus fulfilled, I can agree with proceeding to the adjudication of the case on its merits. [p332] II. THE MERITS A. Interpretation of the Genocide Convention 37. In order to determine what kind of obligations the Genocide Convention imposes on its parties it is necessary to interpret its provisions. That interpretation is to be performed in good faith in accordance with the ordinary meaning to be given to the terms of the Convention read in their context and in the light of its object and purpose. Further, as the Court recalls, recourse may be had to supplementary means of interpretation which include the preparatory work of the Convention and the circumstances of its conclusion in order either to confirm the meaning resulting from “terms - context - object - purpose” interpretation or to remove the ambiguities, obscurity or manifestly absurd or unreasonable result (cf. Judgment, para. 160). 38. Applying these rules of interpretation, I largely agree with the majority’s analysis of the provisions contained in Articles V, VI and VII of the Convention. With respect to some other Articles, however, I am unable to fully share the Court’s interpretation of certain aspects of the relevant provisions. Before elaborating on my understanding of these issues I consider it important to state my views on the purpose of the Convention. 39. The Genocide Convention belongs to the growing corpus of international criminal law. Its purpose is to oblige States parties to prevent the most serious crime - genocide, which is considered to constitute a crime under international law - from being committed and, where it has been committed, to punish its perpetrators. It provides a legal definition of the prohibited act (i.e., genocide), imposes obligations on the States parties to the Convention to make that crime punishable under their domestic law, as well as to make punishable conspiracy, incitement and attempt to commit genocide and complicity in genocide. The States parties have an obligation to provide effective penalties for perpetrators of the crime and to enact the necessary legislation to give effect to the provisions of the Convention (including those relating to the competence of their national courts to try the alleged perpetrators). The Convention also contains a provision on the extradition of the alleged perpetrators. 1. Article I 40. I now turn to my reading of Article I of the Genocide Convention. In Article I, the Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law. The States in the same Article undertake to prevent such crime and to punish the perpetrators in the event that such crime has been committed. Article I thus, in addition to expressing a legally binding agreement of the States parties that genocide constitutes a crime under international [p333] law, contains two obligations for the States parties: (1) to prevent the commission of a crime and (2) to punish the perpetrators. Imposition of the duty of punishment in relation to the crime of genocide implies that this Article contemplates genocide as a crime committed by a person entailing that person’s individual criminal responsibility. I cannot imagine that the States parties would have agreed to a duty of one State to “punish” another State for having committed genocide. 41. I am so far in agreement with what the Court states in paragraphs 146 to 151 of the Judgment. But then the Court goes on to the issue “whether the Parties are also under an obligation, by virtue of the Convention, not to commit genocide themselves” (Judgment, para. 166; emphasis added). The Court cannot but recognize “that such an obligation is not expressly imposed by the actual terms of the Convention” (ibid.). It further states that Article I “does not expressis verbis require States to refrain from themselves committing genocide. However, . . . taking into account the established purpose of the Convention, the effect of Article I is to prohibit States from themselves committing genocide.” (Ibid.) The Court concludes that “the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide” (ibid.). I have doubts whether this is “the ordinary meaning” of the term “pre-vention” even if interpreted in light of the object and purpose of the Convention, which basically is an international criminal law convention. Clearly, under international law, States are not free to commit such atrocities which may amount to genocide. I fully agree on this point with the Court. The other issue is how States, which elaborated and adopted the Genocide Convention, intended to achieve this noble aim, “to liberate mankind from such an odious scourge” (in the words of the Convention’s Preamble). The majority takes the view that the obligation of States not to commit genocide is necessarily implied by the obligation to prevent genocide because any other reading would be paradoxical (ibid.). The majority further reasons that, because the act of genocide is included in the list of punishable acts in Article III, its interpretation of Article I “must also apply to the other acts enumerated in Article III” (ibid., para. 167). The majority provides no support for this view from the travaux préparatoires; it rather refers to “one unusual feature of the wording of Article IX” (Judgment, para. 168), which includes within the jurisdiction of the Court not only disputes relating to the interpretation and application of the Convention, but also disputes relating to the “fulfilment of the . . . Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III” (ibid., para. 146). But that is the compromissory clause, which is usually not the source of substantive obligations. The majority infers, from that compromissory clause, that [p334] “[t]he responsibility of a party for genocide and the other acts enumerated in Article III arises from its failure to comply with the obligations imposed by the other provisions of the Convention, and in particular . . . with Article III read with Articles I and II” (Judgment, para. 169). 42. My understanding of the intention of the States when they elaborated and adopted the Genocide Convention is different. In my view, they intended to achieve the above-mentioned noble aim as set forth in the Preamble by imposing an absolute duty on States parties to hold criminally liable individuals who commit such an odious act and to punish them “whether they are constitutionally responsible rulers, public officials or private individuals” (Article IV of the Convention). A State as an abstract entity cannot act without a concrete person undertaking an act. Subjecting individuals, including those who exercise governmental authority, to international criminal responsibility is arguably an effective way of achieving the goal of the Convention because a State can only act through the conduct of individuals. This exposure to criminal prosecution makes it less likely that such individuals would disregard the obliga-tions of the Genocide Convention, particularly since they may not assert an “act of State” defence to such violations (see paragraph 48, below). 43. Coming back to the text of Article I and its interpretation, it may be useful to take into account the text of the Preamble, since it forms part of the context. The Preamble refers to the declaration made by the General Assembly in its resolution 96 (I) of 11 December 1946 that: “genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices - whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds - are punishable”. It should be recalled that the proposal of the United Kingdom representative in the Sixth Committee, Sir Hartley Shawcross, to replace paragraph 3 of the original draft resolution with the text that the General Assembly “[d]eclares that genocide is an international crime, for the commission of which principals and accessories, as well as States, are individually responsible” (United Nations doc. A/C.6/83; emphasis added), was not accepted. Following the intervention of the French delegate, who referred to the fact that the French legal system did not provide for the criminal responsibility of States, the Chair of the Subcommittee of the Sixth Committee entrusted with the task of preparing a draft resolution explained that “the question of fixing State responsibility, as distinguished from the responsibility of private individuals, public officials, or statesmen, was a matter [p335] more properly to be considered at such time as a convention on the sub-ject of genocide is prepared” (United Nations doc. A/C.6/120). 44. The text of resolution 96 (I) provides no support for the position that when the General Assembly asked the United Nations Economic and Social Council (ECOSOC) “to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide”, it contemplated that such a draft convention should also cover genocide as a crime committed by the State itself. Rather, several passages in the resolution, such as “[t]he punishment of the crime of genocide is a matter of international concern”; or “genocide is a crime under international law . . . for the commission of which principals and accomplices - whether private individuals, public officials or statesmen . . . - are punishable”; or, further, “[i]nvites the Member States to enact the necessary legislation for the prevention and punishment”; or, finally, “[r]ecommends that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide”, indicate that what was intended was proclaiming genocide as a crime under international law and inducing the enactment of its prohibition in internal criminal laws of the States parties which would provide a necessary legal basis for the punishment of its perpetrators irrespective of the position they may have held in the State at the time of the commission of the crime. 45. All of the above leads me to the conclusion that genocide in Article I of the Convention is conceived as a crime of individuals, and not of a State. The States parties have the obligation to prevent the commission of such crime and, if it was committed, to punish the perpetrators. 2. Article II 46. Article II contains a legal definition stricto sensu of the crime of genocide. It is a crime which requires a specific intent (dolus specialis) “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. Article II describes the act itself but not its perpetrators. 3. Article III 47. Article III makes punishable not only the act of genocide itself but also four forms of participation in the crime (conspiracy, direct and public incitement, attempt and complicity). The “punishability” of the prohibited acts, as envisaged in Article III, provides a solid basis for the view that this Article is limited - ratione personae - to individuals and does not include States. Otherwise one would have to accept that States are subject to punishment quod non. The notion of punishment is linked with [p336] criminal responsibility, which has not been accepted as applicable to States. 4. Article IV 48. Article IV of the Convention is limited only to individuals and their personal responsibility for genocide (“[p]ersons committing genocide . . . shall be punished . . .”). Moreover they may be held criminally responsible for the act irrespective of the position they may have held. Article IV provides that “[p]ersons committing genocide . . . shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals”. No defence based on an act of State can successfully shield an individual from being held criminally accountable for his involvement in genocide. The text of Article IV - for the purposes of its interpretation - is thus quite unambiguous: it does not contemplate the responsibility of a State. This conclusion is reinforced by the fact that the United Kingdom amendment to include the criminal responsibility of a State in the text of this provision was rejected. In the Sixth Committee, the United Kingdom proposed to amend draft Article V, as submitted by the Ad Hoc Committee on Genocide of ECOSOC (now Article IV of the Convention), to state: “Criminal responsibility for any act of genocide as specified in Articles II and IV shall extend not only to all private persons or associations, but also to States, governments, or organs or authorities of the state or government, by whom such acts are committed. Such acts committed by or on behalf of States or governments constitute a breach of the present Convention.” (United Nations doc. A/ C.6/236 and Corr. 1, in Official Records of the General Assembly, Part I, Sixth Committee, Annexes, 1948, p. 24; emphasis added.) The United Kingdom amendment was rejected by 24 votes to 22. The Court’s observation that “the responsibility of a State for acts of its organs” is not “excluded by Article IV of the Convention, which contemplates the commission of an act of genocide by ‘rulers’ or ‘public officials’” (I.C.J. Reports 1996 (II), p. 616, para. 32) does not alter the conclusion that the responsibility of a State for genocide is not contemplated in Article IV. The subject-matter of Article IV is rather the State’s duty to punish the perpetrator of genocide irrespective of the position that person may have within the State. 5. Article VI 49. Article VI is concerned with the jurisdiction in which “[p]ersons [p337] charged with genocide . . . shall be tried”. Such persons shall primarily be tried “by a competent tribunal of the State in the territory of which the act was committed”. The Article also contemplates international prosecution of the offender by providing that he or she shall be tried “by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction”. It is useful to recall that the United Kingdom submitted an amendment to draft Article VII (now Article VI of the Convention). It suggested the deletion of the draft article “because, in the first place, there is no international criminal court and secondly, the reference to national courts is unnecessary in view of Article VI” (Article V of the Convention). Instead, the following text was proposed by the United Kingdom: “Where the act of genocide as specified by articles II and IV is, or is alleged to be the act of the State or government itself or of any organ or authority of the State or government, the matter shall, at the request of any other party to the present Convention, be referred to the International Court of Justice, whose decision shall be final and binding. Any acts or measures found by the Court to constitute acts of genocide shall be immediately discontinued or rescinded and if already suspended shall not be resumed or reimposed.” (United Nations doc. A/C.6/236 and Corr.1, in Official Records of the General Assembly, Part I, Sixth Committee, Annexes, 1948, p. 25.) The United Kingdom amendment was not adopted. The amendment was withdrawn in view of the objections, in particular by the United States, that it “was not in order, in that it amounted to a proposal to go back on a decision already taken” referring to the defeat of the United Kingdom amendment to draft Article V (Article IV of the Convention), (see para. 48 of this opinion) (United Nations doc. A/633, Official Records of the General Assembly, Part I, Sixth Committee, 99th meeting, p. 392). The United Kingdom delegate (Fitzmaurice) eventually withdrew this amendment in favour of the joint amendment submitted by Belgium and the United Kingdom to draft Article X (Article IX of the Convention) (see ibid., p. 394). Fitzmaurice later acknowledged that “[t]he debate had clearly shown the Committee’s desire to confine the provisions of Article VII (now Article VI of the Convention) to the responsibility of individuals” (United Nations doc. A/C.6/SR.103, p. 430). 6. Article IX 50. Article IX is the key provision for the purposes of the present case. Its text reads as follows: “Disputes between the Contracting Parties relating to the interpretation,[p338] application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.” (Emphasis added.) This jurisdictional clause is, as Judge Oda put it, “unique as compared with the compromissory clauses found in other multilateral treaties which provide for submission to the International Court of Justice of such disputes between the Contracting Parties as relate to the interpretation or application of the treaties in question” (I.C.J. Reports 1996 (II), p. 627, para. 5; emphasis in the original). In fact the draft Convention, as prepared by the Ad Hoc Committee and submitted to the Sixth Committee, contained the usual compromissory clause, which contemplated the compulsory jurisdiction of the Court for disputes “relating to the interpretation, or application of the present Convention”. What is the meaning of the additional words: “or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide”? (a) Disputes relating to the fulfilment of the Convention 51. The addition of the word “fulfilment” does not appear to the Court to be significant (Judgment, para. 168). I agree on this point. A review of the travaux préparatoires convinces me that the word “fulfilment” adds nothing legally relevant to the obligation to apply the Convention. By applying the Convention in good faith, a State party contributes to the fulfilment of the purpose of the Convention to prevent genocide, which purpose is clearly stated in the Preamble (“to liberate mankind from such an odious scourge”, i.e., the crime of genocide) and in Article I. It was in connection with this undertaking that the word “fulfilment” was used for the first time in drafting the Genocide Convention (see the Belgian amendment, United Nations doc. A/C.6/252). 52. In my view the addition of the formulation “fulfilment of the present Convention” in the compromissory clause does not add anything to the substantive obligations of the parties to the Convention and does not expand the jurisdiction ratione materiae of the Court in comparison with the concept of “application of the Convention” as it appears in Article IX (and in a great number of jurisdictional or compromissory clauses in other instruments). It merely places an additional emphasis on one aspect of the Convention, namely its overall purpose to prevent the “odious scourge” of genocide. [p339] (b) Disputes relating to the responsibility of a State for genocide 53. It remains to deal with that part of the compromissory clause in Article IX which contemplates “disputes . . . including those relating to the responsibility of a State for genocide or any of the other acts enumerated in Article III” as falling within the jurisdiction of the Court. The French version of this clause differs slightly. It reads as follows: “les différends . . . y compris ceux relatifs à la responsabilité d’un Etat en matière de génocide ou de l’un quelconque des autres actes énumérés à l’article III” (emphasis added). This particular provision raises a number of issues, specifically that of its meaning. It can be interpreted in at least three different ways. 54. First, the provision can be understood as simply contemplating the jurisdiction of the Court to determine the responsibility of a State for the breach of one its obligations under the Convention. The jurisdiction of the Court with respect to the application of a treaty however also includes jurisdiction to determine the consequences for a State resulting from its non-compliance with treaty obligations, i.e., its international responsibility (cf. Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21). Therefore “it would be superfluous to add [the formula into the compromissory clause] unless the Parties had something else in mind” (Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 24). The principle of effectiveness in treaty interpretation, although not provided for as such in the Vienna Convention on the Law of Treaties on which the Court routinely relies, suggests that such interpretation would be too narrow. The travaux préparatoires, revealing a rather lengthy and sometimes confused debate (see paragraphs 57 and 58 below), reaffirm that such interpreta-tion should not be retained. 55. Second, the clause under consideration can also be understood as empowering this Court to determine that a State has committed genocide, which is the crime “singled out for special condemnation and opprobrium”, “horrific in its scope”, constituting a “crime against all of humankind”. [FN13] But that interpretation would implicate the criminal responsibility of States in international law - a concept previously rejected by a significant majority of States, and more recently abandoned by the ILC, in finalizing the Articles on [p340] Responsibility of States for Internationally Wrongful Acts between 1998 and 2001. ------------------------------------------------------------------------------------------------- [FN13] ICTY, Prosecutor v. Radislav Krstic, IT-98-33-A, Judgment of the Appeals Chamber, 19 April 2004, para. 36. ------------------------------------------------------------------------------------------------- 56. Third, the clause can also be understood as the power of the Court to determine that in a particular case a State has to bear the consequences of the crime of genocide, committed by an individual found to be criminally liable, because a certain relationship existed between the individual perpetrator of the genocide and the State in question. In other words, the Court has been given jurisdiction to determine the responsibility of a State for genocide under the rules of international law, on the basis of attribution to the State of the genocidal acts perpetrated by persons. It seems to me that this interpretation is the most plausible considering not only the English text of Article IX (“the responsibility of a State for genocide”), but also its French text (“la responsabilité d’un Etat en matière de génocide”), and the sometimes confused debate on the draft in the Sixth Committee in November 1948. 57. The deliberations and revisions underlying the Sixth Committee’s drafting process despite their tempered confusion, lend support to this third and favoured construction. The drafting history of Article IX of the Convention reveals that the United Kingdom and Belgian delegations originated this text. It emerged after previous, unsuccessful attempts by both States to revise other provisions. The United Kingdom failed to gather sufficient support for its amendments to draft Article V (Article IV of the Convention) to extend criminal responsibility “also to States, governments or organs or authorities of the state or government” (for the text of the amendment, see paragraph 48 above), and to draft Article VII (Article VI of the Convention) (for the text of the amendment, see paragraph 49 above). Likewise, Belgium did not succeed in putting through its amendment to the United Kingdom amendment to draft Article VII. Following these non-successes, the two delegations submitted a joint amendment to draft Article X (now Article IX of the Convention), proposing the following text for that Article (original in English and French): “Any dispute between the High Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including disputes relating to the responsibility of a State for any of the acts enumerated in Articles II and IV, shall be submitted to the International Court of Justice at the request of any of the High Contracting Parties.” (United Nations doc. A/C.6/258, p. 28.) In French the text reads as follows: “Tout différend entre les Hautes Parties contractantes relatif à l’interprétation, l’application ou l’exécution de la présente Convention, y compris les différends relatifs à la responsabilité d’un Etat dans les actes énumérés aux articles II et IV, sera soumis à la Cour [p341] internationale de Justice, à la requête d’une Haute Partie contract-ante.” (United Nations doc. A/C.6/258, p. 28.) 58. The ensuing debate in the Sixth Committee reveals the following pertaining to the joint amendment: (i) It was discussed at the moment when the reference to “a competent international tribunal” for the trial of persons charged was deleted from draft Article VII, so that the only jurisdiction then contemplated was a domestic tribunal of the State in the territory in which the act was committed. The reference to “such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction” was inserted into Article VI of the Convention only at a late stage in the work of the Sixth Committee, well after the debate on draft Article X (now Article IX of the Convention) was over and decisions on various amendments, including the joint United Kingdom/Belgian amendment, had been made. (ii) It was in this setting that some delegations were ready to accept the joint United Kingdom/Belgian amendment. The French delegate who had earlier opposed the United Kingdom amendment to draft Article V seeking to extend criminal responsibility to States, said in the debate on the joint United Kingdom/Belgian amendment to draft Article X that: “[i]t would certainly have been preferable to provide for such punishment [of the genocide] on the direct basis of criminal law instead of confining its scope to States alone on the basis of civil law; but, inadequate as it was, the joint amendment was preferable to the absence of any text confirming competence to an international court” (United Nations doc. A/C.6/SR.103, p. 431). Similarly, “[t]he delegation of Brazil was prepared to accept the joint amendment, provided the second part of Article X of the draft remained deleted, so that it would conform to article VII, from which mention of a competent international tribunal had been deleted” (ibid., p. 432). Similar views were expressed by Uruguay (ibid., p. 433). (iii) The responsibility of a State, envisaged by the co-authors of the joint amendment, was not a criminal one. Fitzmaurice, as the United Kingdom’s representative, replying to the Canadian delegate’s request for clarification, said “that the responsibility envisaged by the joint Belgian and United Kingdom amendment was the international responsibility of States following a violation of the convention”. As he explained, “[t]hat was civil responsibility, not criminal responsibility” (ibid., p. 440). (iv) There were several preliminary votes before the vote on the joint [p342] amendment as a whole. First, the Sixth Committee, by 30 votes to 9 with 8 abstentions, adopted the Indian amendment to substitute the words “at the request of any of the parties to the dispute” for the words “at the request of any of the High Contracting Parties” in the joint amendment (United Nations doc. A/C.6/SR.104, p. 447). Second, by 27 votes to 10 with 8 abstentions, the proposal to delete the word “fulfilment” from the joint amendment was rejected (ibid.). Third, the deletion of the words “including disputes relating to the responsibility of a State for any of the acts enumerated in Articles II and IV” from the joint amendment was rejected by a close vote of 19 votes to 17, with 8 abstentions (ibid.). Finally, the joint amendment of the United Kingdom and Belgium, as amended by India, was adopted by 23 votes to 13, with 8 abstentions (ibid.). (v) The drafting committee of the Sixth Committee introduced a few stylistic emendations [FN]14 to the joint amendment and renumbered it as Article IX (United Nations doc. A/C.6/289 and Corr.1). (vi) India then again attempted unsuccessfully to delete the words “including those relating to the responsibility of a State for genocide or any of the other acts enumerated in Article III” (for the Indian amendment, see United Nations doc. A/C.6/299). The United Kingdom, Belgium and the United States proposed an alternative draft of Article IX. It read as follows (English and French being the original texts): “Disputes between Contracting Parties relating to the interpretation, application or implementation of this Convention, including disputes arising from a charge by a Contracting Party that the crime of genocide or any other of the acts enumerated in Article III has been committed within the jurisdiction of another Contracting Party, shall be submitted to the International Court of Justice at the request of one of the parties to the dispute.” (United Nations doc. A/C.6/305; emphasis added.) ------------------------------------------------------------------------------------------------- [FN14] The Drafting Committee deleted the words “Any” at the very beginning of the text and “High” before “Contracting Parties”; substituted “those” for “disputes” after the word “including”; and used the language “for genocide or any of the other acts enumerated in Article III” instead of “for any of the acts enumerated in articles II and IV”. ------------------------------------------------------------------------------------------------- In French: “Les différends entre Parties contractantes relatifs à l’interprétation, l’application ou l’exécution de la présente Convention, y compris ceux résultant de l’allégation par une Partie contractante que le crime de génocide ou l’un quelconque des autres actes énumérés à l’article III a été commis dans la juridiction d’une autre Partie [p343] contractante, seront soumis à la Cour internationale de Justice, à la requête d’une partie au différend.” (Nations Unies, doc. A/C.6/305; les italiques sont de moi.) The three co-authors of this amendment did not consider it to be an amendment of substance, but only “an alternative drafting”, the object of which “was the deletion of the word ‘responsibility’, which appeared ambiguous to certain delegations” (United Nations doc. A/C.6/SR.131, p. 687). They were of the view that the Indian amendment “was an amendment of substance” and it was “for the Indian representative alone to ask for a reconsideration of Article IX” (ibid.). After a prolonged debate, the Chairman of the Sixth Committee [FN15] “ruled that the amendment concerned the substance of the article. Thus it was provided in article IX that those disputes, among others, which concerned the responsibility of a State for genocide or for any of the acts enumerated in article III, should be submitted to the International Court of Justice.” (Ibid., p. 690.) ------------------------------------------------------------------------------------------------- [FN15] R. J. Alfaro, who later became Judge (1959-1964) and Vice-President (1961-1964) of the International Court of Justice. ------------------------------------------------------------------------------------------------- He continued that “According to the joint amendment [of Belgium, the United Kingdom and the United States], on the other hand, the disputes would not be those which concerned the responsibility of the State but those which resulted from an accusation to the effect that the crime had been committed in the territory of one of the contracting parties.” (Ibid.) He concluded, “[t]hat being so, the Committee could not consider the joint amendment of Belgium, the United Kingdom and the United States or the Indian amendment unless it decided in favour of reconsideration of article IX” (ibid.). That ruling of the Chairman remained unchallenged. The Chairman then put to the vote a motion for reconsideration of Article IX. The motion was not adopted, having failed to obtain the required two-thirds majority (16 votes in favour of reconsideration, 13 against and 11 abstentions) (ibid., p. 690). 59. In light of the drafting history of Article IX of the Genocide Convention, and in light of the ruling of the Chairman of the Sixth Committee on the joint United Kingdom, Belgian and United States proposal (United Nations doc. A/C.6/305), it is difficult to conclude that the jurisdiction of the Court under Article IX would also cover a charge “that the crime of genocide or any other of the acts enumerated in article III has been committed”. 60. The Court has no criminal jurisdiction. One may wonder how a Court conceived as a judicial organ for the adjudication of inter-State [p344] disputes, with no criminal jurisdiction, whose procedure (Rules of Court) is not tailored to the requirements (or needs) of a criminal case, and which has no Rules of Evidence, could determine that a crime (i.e., genocide, requiring specific intent (dolus specialis)) has been committed. Is it possible for the commission of a crime to be established within a procedure which provides for no appeal? These are, in my view, important considerations which militate against construing Article IX of the Convention so as to enable charges by one State that another has committed genocide to be brought within the Court’s jurisdiction. 7. Conclusions on the interpretation of the Convention 61. Having analysed and interpreted different provisions of the Genocide Convention it is now appropriate to draw the relevant conclusions. They are, in my view, as follows: (i) The Convention was intended as an instrument for the prevention and punishment of the crime of genocide. (ii) Genocide, as a crime under international law, is construed in the Convention as a criminal offence whose perpetrators bear individual criminal responsibility and shall thus be punished irrespective of their position. (iii) The Convention does not conceive genocide as a criminal act of a State. [FN16] (iv) The Convention establishes a number of obligations for the States parties. These are the following obligations: (a) to prevent genocide (Art. I); (b) to punish the perpetrator(s) of genocide (Arts. I and IV); (c) to enact the necessary legislation (Art. V); (d) to exercise jurisdiction by a competent tribunal of a territorial State (Art. VI); (e) to extradite the perpetrator(s) (Art. VII). (v) The failure of a State to comply with one of the above obligations stemming from the Convention constitutes an unlawful act and entails the international responsibility of a State. The jurisdiction of the Court under Article IX of the Convention encompasses the determination of whether a State has complied with the above obligations, and of the international responsibility of a State for the breach of any of the above obligations (see point (iv) (a) to (e) above). (vi) The jurisdiction of the Court, as a consequence of the addition of [p345] the words “including those [disputes] relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III” into the compromissory clause in Article IX, is broader and it includes the power of the Court to determine international “responsibility of a State for genocide” on the basis of attribution to the State of the criminal act of genocide perpetrated by a person. This Court, however, is not the proper forum in which to make a legally binding pronouncement that a crime of genocide was committed. Such a finding is to be made within the framework of a criminal procedure which also provides for a right of appeal. This Court has no criminal jurisdiction and its procedure is not a criminal one. ------------------------------------------------------------------------------------------------- [FN16] One should not lose sight of the fact that the Convention was drafted in the aftermath of the Nuremberg Tribunal. That Tribunal said that “[c]rimes against international law are committed by men, not by abstract entities” (France et al. v. Goering et al., (1946) 22 IMT, p. 466). ------------------------------------------------------------------------------------------------- B. Comments on Some of the Court’s Findings 1. The obligation to prevent 62. The Court has found that the Respondent breached its obligation to prevent genocide under Article I of the Genocide Convention. In order to reach this conclusion, it first qualified this obligation as a kind of “due diligence” obligation (Judgment, para. 430) and identified “the capacity to influence effectively the action of persons likely to commit, or already committing, genocide” (ibid.; emphasis added) as a relevant criterion for “assessing whether a State has duly discharged the obligation concerned” (ibid.). The Court considered that “the FRY was in a position of influence, over the Bosnian Serbs” (ibid., para. 434). Although the Court “has not found that the information available to the Belgrade authorities indicated, as a matter of certainty, that genocide was imminent . . ., they could hardly have been unaware of the serious risk of it” (Judgment, para. 436). The scale of the tragic events, “though it could not have been foreseen with certainty, might at least have been surmised”(ibid., para. 438; emphasis added). The Court found that since “the Respondent has not shown that it took any initiative to prevent what happened”, it “violated its obligation to prevent the Srebrenica genocide” (ibid.).It does not matter for the Court whether the Respondent “definitely had the power to prevent the genocide; it is sufficient that it had the means to do so and that it manifestly refrained from using them” (ibid.). The Court does not specify what kind of “means” it has in mind, but has apparently contemplated the Federal Republic of Yugoslavia’s influence over the Bosnian Serbs. 63. What is conspicuous in this part of the Judgment is the fact that scarcely any attention is paid to the arguments of the Parties. I feel compelled to offer my views on the issues they have raised. 64. Serbia and Montenegro argued that “the Genocide Convention can only apply when the State concerned has territorial jurisdiction or [p246] control in the areas in which the breaches of the Convention are alleged to have occurred” (CR 2006/16, p. 15). It further points out that: “[t]he duties to mobilize the domestic law of Contracting States, and to prevent and punish acts of genocide committed by individuals, are inevitably related to the exercise of legislative and enforcement jurisdiction within State territory, or areas under the control of the State. The principles of State responsibility require an ability to exercise control over the area concerned.” (Ibid., p. 19.) Bosnia and Herzegovina quoted from the Judgment of the Court on the jurisdiction in the present case “that the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention” (I.C.J. Reports 1996 (II), p. 616, para. 31). But Bosnia and Herzegovina also acknowledged that a State has to exercise at least some control over the territory or activities in question when it stated: “In short, the question that needs to be asked is the following: did the Respondent, in relation to the territory of Bosnia and Herzegovina, exercise functions, powers or activities which would have enabled it to prevent or halt the genocide, or at least attempt to do so? It is obvious that if . . . the reply to that question were to be affirmative, it would then follow that the obligation to act in order to prevent and halt the genocide was fully applicable to the Respondent.” (CR 2006/34, p. 7; emphasis added.) 65. In my view, the dictum of the Court that “the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention” has to be interpreted in a reasonable way. First, as the Court now rightly states, “the duty to prevent genocide and the duty to punish its perpetrators . . . are . . . two distinct yet connected obligations, each of which must be considered in turn” (Judgment, para. 425). Second, with respect to the territorial scope of these two obligations, I shall start with the obligation of punishment for which one finds a clearer answer in the text of the Convention and in the travaux préparatoires leading to its adoption. That obligation is territorially limited, as the Court now rightly notes (Judgment, para. 184). The principle of universality for the obligation of punishment, originally envisaged in Article VII of the Secretariat draft, was abandoned by the Ad Hoc Committee in its draft Article VII, which opted for the principle of territoriality, complemented with the jurisdiction of a competent international tribunal to be established. This solution was, in principle, retained in Article VI of the Genocide Convention. Thus, strictly speaking, the Convention imposes the obligation to punish on the State in whose territory the crime of genocide was committed. On the other side, the practice of [p347] States clearly confirms that they recognize a State’s right to exercise its criminal jurisdiction when the crime of genocide was committed outside its territory, irrespective of the nationality of the alleged perpetrator(s) and victims. Regardless of how desirable it may be that a State exercises its criminal jurisdiction to punish genocide, this does not transform such a right into a State obligation, unless of course, the genocide was committed in its territory. 66. Turning now to the obligation of prevention, the debate in the Sixth Committee is not very illuminating. Not surprisingly the leading author on genocide wrote that “[p]erhaps the most intriguing phrase in Article I is the obligation upon States to prevent and punish genocide”. He continued that: “while the final Convention has much to say about punishment of genocide, there is little to suggest what prevention of genocide really means. Certainly, nothing in the debates about Article I provides the slightest clue as to the scope of the obligation to prevent.” [FN17] ------------------------------------------------------------------------------------------------- [FN17] W. A. Schabas, Genocide in International Law, 2000, p. 72. ------------------------------------------------------------------------------------------------- The Court itself acknowledges that while “the Convention includes fairly detailed provisions concerning the duty to punish (Articles III to VII), it reverts to the obligation of prevention, stated as a principle in Article I, only in Article VIII” (Judgment, para. 426; emphasis added). The latter Article affirms the possibility for a State to bring to the attention of the competent organs of the United Nations a situation which such State views as amounting to genocide or involving a risk leading to genocide. But, unfortunately, the Article does not establish a firm obligation for the competent organ to act. It is for these United Nations organs to consider what action would be appropriate for the prevention or suppression of genocide, or situations which may degenerate into it. Any such action is to be based on the Charter of the United Nations. Article VIII is primarily aimed at the Security Council, which bears “primary responsibility for the maintenance of international peace and security” and is authorized under the Charter to decide what measures shall be taken to maintain or restore international peace and security. The other organ possibly contemplated under Article VIII of the Genocide Convention is the General Assembly. When they adopted the Genocide Convention, States expressed in its Preamble their conviction that, “in order to liberate mankind from such an odious scourge [i.e., genocide], international co-operation is required”. Article VIII of the Convention gives a normative expression to this [p348] conviction by contemplating a role for the competent United Nations organs in the prevention and suppression of acts of genocide. This is understandable since one of the purposes of the United Nations, as stated in Article 1 of the Charter, is “[t]o be a centre for harmonizing the actions of nations in the attainment of [their] common ends”, among them the maintenance of international peace and security, the promotion and encouragement of respect for human rights, and fundamental freedom for all. But if Article VIII does not impose a legal obligation on the competent organs to act, can the obligation of prevention in Article I be interpreted as requiring a State to act outside of its territory in order to prevent or suppress the acts of genocide? I have serious doubts. Such a broad construction of this obligation would mean that preventative action undertaken by one State in the territory of another should be viewed as lawful. But in practice, unilateral or plurilateral actions undertaken without the authorization of the Security Council still remain controversial. At present, only actions authorized by the Council are undoubtedly lawful and legitimate. 67. This said, however, I am convinced that under Article I of the Genocide Convention the State does have an obligation to prevent genocide outside its territory to the extent that it exercises jurisdiction outside its territory, or exercises control over certain persons in their activities abroad. This obligation exists in addition to the unequivocal duty to prevent the commission of genocide within its territory. 68. In this case, it has not been established that the Federal Republic of Yugoslavia exercised jurisdiction in the areas surrounding Srebrenica where atrocious mass killings took place. Nor has it been established that it exercised control over the perpetrators who conducted these killings outside the territory of the Federal Republic of Yugoslavia. The plan to execute as many as possible of the military aged Bosnian Muslim men present in the Srebrenica enclave was devised and implemented by the Bosnian Serbs following the takeover of Srebrenica in July 1995. That was the factual finding of the International Criminal Tribunal for the former Yugoslavia (ICTY). [FN18] It has not been established as a matter of fact before this Court that the Federal Republic of Yugoslavia authorities knew in advance of this plan. In such a situation they could not have prevented the terrible massacres in Srebrenica. ------------------------------------------------------------------------------------------------- [FN18] ICTY, Prosecutor v. Krstic, IT-98-33-T, Judgment of the Trial Chamber, 2 August 2001, para. 87. ------------------------------------------------------------------------------------------------- Thus, to my regret, I cannot support the conclusion of my colleagues in the majority, although I understand the motives, which, at the end of the day, may have led them to reaching it. [p349] 2. The responsibility for non-compliance with the Orders indicating provisional measures 69. In the part of this opinion in which I dealt with the Court’s jurisdiction, I took the position that the Federal Republic of Yugoslavia was not a party to the Statute of the Court during the 1992-2000 period and has become party to it only as from 1 November 2000 (paras. 25-36 above). In my view, these facts have implications both for the 1993 Orders on interim measures of protection, and for the 1996 Judgment on jurisdiction and admissibility because their binding nature is based on the Statute (Arts. 41 and 59). I have already explained my views on the problematic implications for the 1996 Judgment since it was rendered when the Federal Republic of Yugoslavia was not party to the Statute, and the consequent need to determine the jurisdiction of the Court de novo (paras. 16-25 above). It remains to offer a few observations on the Orders indicating provisional measures. 70. One of the conditions for indicating the requested measures is that the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be established. Article IX of the Genocide Convention “appear[ed] to the Court to afford a basis on which the jurisdiction of the Court might be founded” (I.C.J. Reports 1993, p. 16, para. 26). Orders on provisional measures, rendered on the prima facie ascertainment of the Court’s jurisdiction, produce their effects from the moment of their notification to the Parties and remain in force until the Court either by a judgment on preliminary objections finds that it has no jurisdiction to entertain the case or finds the Application inadmissible, or renders its judgment on the merits, i.e. until the final judgment in the case is delivered (Art. 41 of the Statute). In its Judgment in the Anglo-Iranian Oil Co. (United Kingdom v. Iran) case, once the Court found that it lacked jurisdiction in the case, it observed that it followed from this finding that the Order on the provisional measures rendered earlier “ceased to be operative [upon the delivery of this Judgment] and that the Provisional Measures lapsed at the same time” (I.C.J. Reports 1952, p. 114) [FN19] This statement seems to indicate that the lapse of the provisional measures was prospective; they were not invalidated or declared void ab initio. Similarly, in the Southern Bluefin Tuna case, the Arbitral Tribunal having found itself without jurisdiction to rule on the merits decided “that provisional measures in force by Order of the International Tribunal for the Law of the Sea ... [were] revoked from the day of the signature of [the] [p350] Award”. [FN20] The Tribunal explained that the Order prescribing provisional measures “cease[d] to have effect as of the date of the signing of [the] Award” [FN21] and added that “[h]owever, revocation of the Order . . . does not mean that the Parties may disregard the effects of that Order”. [FN22] ------------------------------------------------------------------------------------------------- [FN19] In the Nuclear Tests cases, the Court, having found that the claims no longer had any object and it was therefore not called upon to give a decision thereon, with respect to Orders indicating provisional measures repeated the same formula (I.C.J. Reports 1974, p. 272, para. 61 and pp. 477-478, para. 64). [FN20] International Law Reports, Vol. 119, p. 556, para. 72. [FN21] Ibid., p. 554, para. 66. [FN22] Ibid., p. 555, para. 67. ------------------------------------------------------------------------------------------------- 71. The Orders of the Court of 8 April and 13 September 1993 have produced their effects. Rendered on the prima facie ascertainment of jurisdiction, the Parties were to comply with the provisional measures indicated therein. The 1993-1995 period is relevant for the consideration of the compliance with these measures. At that time, the Federal Republic of Yugoslavia claimed to be a Member of the United Nations and, on that basis, party to the Statute. Despite the fact that this claim subsequently did not prevail, at the time the Orders were rendered the Federal Republic of Yugoslavia should have perceived itself as bound by those Orders. The Federal Republic of Yugoslavia was not party to the Statute until 1 November 2000 when it was admitted to membership in the United Nations. Formally, therefore, it had no legal obligations under the Statute during the period from 27 April 1992 through 31 October 2000. For that reason, I believe that the text of the Judgment would have been more accurate had it employed alternative language, avoiding the term “obligation” (Judgment, paras. 435 and 471 (7)). But since the Orders produced their effects, and the Federal Republic of Yugoslavia’s authorities did not, during the relevant period of 1993-1995, take the requirements of those Orders seriously into account, I agree with the conclusions of the majority that the Respondent failed to comply with some of the provisional measures. I have therefore voted in favour of paragraph 7 of the operative clause. CONCLUDING REMARKS 72. The Judgment closes a particularly lengthy case. Its intriguing procedural history which started almost 14 years ago is summarized in the qualités of the Judgment. The complexity of this case is further reflected in the most extensive written pleadings in the Court’s history. Views were expressed that the case had awaited adjudication for too long. In the meantime, the Trial and Appeals Chambers of the ICTY have rendered a great number of judgments on which both Parties relied in the present proceedings. The Court has given serious consideration to the ICTY’s judgments and to the evidence produced in the trials before its Chambers [p351] to which the Parties referred. Without the work accomplished by the ICTY, it would have been much more difficult for the Court to discharge its role in the present case. Cases involving the “responsibility of a State for genocide” are too serious to be adjudicated simply on the basis of the allegations by the Parties. 73. As the Court observes, “the duality of responsibility continues to be a constant feature of international law” (Judgment, para. 173). This Court and the ICTY have two different missions but one common objective. The ICTY has to determine the personal guilt and individual criminal responsibility of those indicted for the crime of genocide, crimes against humanity and war crimes. It has no jurisdiction over States as such and thus cannot make any pronouncement on the responsibility of States for the many serious atrocities committed during the Balkan wars since 1991. The International Court of Justice has no jurisdiction over the individual perpetrators of those serious atrocities. Article IX of the Genocide Convention confers on the Court jurisdiction to determine whether the Respondent complied with its obligations under the Genocide Convention. In making this determination in the present case, the Court was entitled to draw legal consequences from the judgments of the ICTY, particularly those which dealt with charges of genocide or any of the other acts proscribed in Article III. Only if the acts of the persons involved in the commission of such crimes were attributable to the Respondent could its responsibility have been entailed. The activity of the Court has thus complemented the judicial activity of the ICTY in fulfilling the Court’s role in the field of State responsibility for genocide, over which the ICTY has no jurisdiction. Hopefully, the activities of these two judicial institutions of the United Nations, the Court remaining the principal judicial organ of the Organization, contribute in their respective fields to their common objective - the achievement of international justice - however imperfect it may be perceived. (Signed) Peter TOMKA. [p352] DECLARATION OF JUDGE KEITH 1. This declaration explains my vote on the alleged complicity of the Respondent, in breach of Article III (e) of the Genocide Convention, in the genocide committed at Srebrenica in July 1995. In summary, my position on the law is that the Respondent, as an alleged accomplice, must be proved to have knowledge of the genocidal intent of the principal perpetrator (but need not share that intent) and, with that knowledge, to have provided aid and assistance to the perpetrator. My position on the facts is that those two elements are proved to the necessary standard. 2. The reasons for my conclusion on the law that it is sufficient in terms of Article III (e) to establish that the accomplice knew that the principal perpetrator had genocidal intent, relate to the definition and the nature of complicity in unlawful acts, the purpose of the prohibition on complicity in genocide, and the case law. 3. Dictionary definitions of “complicity” and “(ac)complice” provide both narrower and broader meanings. To put the matter in legal terms, the narrower meaning appears to equate complicity with aiding and abetting (or assisting) while the broader meaning also includes a co-author or co-perpetrator of the offence. Thus the Oxford English Dictionary (OED Online, 2nd ed., 1989) defines “complice” as “[o]ne associated in any affair with another, the latter being regarded as the principal”, and also as a “confederate” or “comrade”, words apt to include a co-perpetrator. And Le Petit Robert (electronic version, version 2, 2001) defines “complicité” as participation by intentional assistance in the breach committed by another and in terms of agreement or entente. Legal dictionaries also include narrower and broader approaches. Gérard Cornu, Vocabulaire Juridique (7th ed., 2005, p. 188), drawing on Articles 121-6 and 121-7 of the French Penal Code, defines “complicité” as a contribution to the realization of a breach by aid or assistance to the author of the offence, or by instigation; a “complice” in his definition is contrasted with a principal author or co-author; see similarly Jean Salmon, Dictionnaire de droit international public (2001, pp. 218-219). Halsbury’s Laws of England (4th ed., Vol. 11, para. 43), says that persons are accomplices if they are participants in the offence charged, [p353] whether as principals, procurers, aiders or abettors. Mellinkoff’s Dictionary of American Legal Usage (1992, p. 463), defines “accomplice” as “a general term for a person who participates with others in the commission of a crime, whether as principal or accessory”, with the last word being equated with “someone who aids and abets”. My final reference is to a publication of the United Nations Office at Geneva, Law Terminology in English, French and Spanish (1990, p. 196). It helpfully distinguishes between the broader and narrower sense of “complice”; in the broader sense, the accomplice is the person who participates in the crime or wrong of another, including as a co-author; and in the narrower, by contrast to a co-author, the person who participates as an accessory. 4. As those definitions show, complicity is often equated in whole or in part with aiding and abetting. The present aspect of the case is concerned with complicity only in the sense of aiding and abetting. I agree with the Court that the Applicant has not established that the Respondent is in breach of its obligation, as a principal, not to commit genocide. I now turn to the mental element required if complicity in this more restricted sense is to be established. 5. In many national legal systems aiders and abettors need only be aware that they are aiding the principal perpetrator in the commission of its offence by their contribution (see e.g. the law of France, Germany, Switzerland, England, Canada, Australia and some of the states of the United States referred to in Prosecutor v. Krstic, IT 98-33-A, Judgment of 19 April 2004, para. 141). More significantly, the Appeals Chamber of the ICTY in Krstic, following earlier decisions, has ruled consistently with that body of national law that “an individual who aids and abets a specific intent offense may be held responsible if he assists the commission of the crime knowing the intent behind the crime” (Krstic, para. 140). Having recalled that consistent jurisprudence and principle, the Chamber applied it to the prohibition of genocide stated in its Statute, the wording of which is taken directly from Article II of the Genocide Convention. 6. That understanding of the mental element required by complicity when it is limited to aiding and abetting serves the purpose of sanctioning the actions of those who knowingly assist the unlawful act of the primary perpetrator, knowing in particular of the primary perpetrator’s genocidal [p354] intent. The necessary intent of the aider and abettor is the intent to provide the means by which the perpetrator may realize his own intent to commit genocide. As Judge Shahabuddeen said in paragraph 67 of his opinion in Krstic, those preparing the text of the Genocide Convention could not have failed to criminalize the actions of the commercial suppliers of poisonous gas who knew of the intent of the purchasers to use the gas for the purpose of destroying a national, ethnical, racial or religious group, even if the suppliers themselves did not share that intent. 7. It is true that the Appeals Chamber in Krstic did go on to suggest that, for complicity to be established in some circumstances, the accomplice had to share the principal’s intent (Prosecutor v. Krstic, IT 98-33-A, Judgment of 19 April 2004, para. 142). But, because that suggestion is expressly limited to conduct broader than aiding and abetting, as well as being unnecessary for the decision in that case (as the Chamber acknowledges at footnote 247), it is irrelevant to the present case. Further, the two reasons the Chamber gives for its suggestion are unpersuasive. The first reason - the natural reading of Article III (e) - is merely asserted. Moreover, that reading would necessarily have to apply to aiding and abetting as well as to the broader matters encompassed within Article III (e), an application which would contradict the Chamber’s main ruling that knowledge is sufficient for aiding and abetting. That problem also arises with the second argument based on an examination of the drafting history in the Sixth Committee of the General Assembly in 1948. In any event, that history is better read as requiring that the alleged accomplice know that the principal perpetrator has the necessary intent, not that the alleged accomplice share it (United Nations, Official Records of the General Assembly, Third Session, Sixth Committee, Summary Records of the 87th meeting, pp. 254-259). The discussion on the proposed amendment (which was to add the word “deliberate” before “complicity” but which was withdrawn on the basis that complicity in genocide must be “deliberate”) indicates that the actions had to be “deliberate” in the sense of knowing of the perpetrator’s intent; the intent did not have to be shared. 8. I now turn to the facts and to the question whether the Applicant has shown that the Respondent, knowing of the perpetrator’s genocidal intent, continued to supply the perpetrators with the means to facilitate the realization of that intent. There can be no possible dispute about that supply and its continuation. It is seen in the very extensive involvement of the Respondent in the actions of Republika Srpska and the VRS in Bosnia and Herzegovina, notably in the provision from late 1991, and especially from 19 May 1992, of 1,800 officers to the VRS and their continued support (including “rehatting”, housing, promotion and discipline), of material, both initially and subsequently, of joint operations and the involvement of the Ministry of the Interior, and of funding, [p355] including the huge budget support and the integrating of the central banks. Extensive documentation of that was presented to the Court. One revealing acknowledgment is provided by President Karadžic speaking at a session of the Assembly of Republika Srpska in May 1994 - “[w]ithout Serbia nothing would have happened, we don’t have the resources and would not have been able to make war”. Or, as the Court concludes, had the Respondent chosen to withdraw its military and financial support from the Republika Srpska, this would have greatly constrained the options available to the authorities of Republika Srpska (Judgment, para. 241). 9. But did the Respondent have the necessary knowledge in the very short time the Srebrenica massacre was undertaken, essentially from 13 to 16 July 1995? My primary specific source in answering that question is the 1999 Report of the United Nations Secretary-General, “The Fall of Srebrenica” (A/54/549, Ch. VIII); see paragraphs 228-230 of the Judgment of the Court. 10. That specific information is to be understood in the context of the more general information about the very close relationships between the leaderships in Belgrade and in Pale and especially between President Miloševic and President Karadžic and General Mladic, and particularly between President Miloševic and General Mladic. The Court had extensive evidence of those relationships, for instance from two of the UNPROFOR Commanders, General Dannatt and General Rose. As the Court says, the leadership of the Federal Republic of Yugoslavia, and President Miloševic above all, were fully aware of the climate of deep seated hatred which reigned between the Bosnian Serbs and Muslims of the Srebrenica region (Judgment, paragraph 438). More specifically they were aware of the dire and deteriorating situation in Srebrenica in the first part of 1995. 11. Coming closer to the time of the atrocities, not just the leadership in Belgrade but also the wider international community was alerted to the deterioration of the security situation in Srebrenica by Security Council resolution 1004 (1995) adopted on 12 July 1995 under Chapter VII of the Charter. The Council expressed grave concern at the plight of the civilian population “in and around the safe area of Srebrenica”. It demanded, with binding force, the withdrawal of the Bosnian Serb forces from the area and the allowing of unimpeded access for international humanitarian agencies to the area to alleviate the plight of the civilian population. 12. On the following day, 13 July, United Nations military observers reported that General Mladic had told them that there were several hundred bodies of dead Bosnian soldiers in one part of the enclave. There were other reports of murders and other atrocities that day. On that day the Chargé d’Affaires of Bosnia and Herzegovina in New York officially [p356] expressed his government’s concern about the fate of detainees and fears of their execution in a letter to the Secretary-General. The 1999 Report provides this summary: “Thus, on 13 July, strong alarm was expressed at various levels that abuses might have been or were being committed against the men of Srebrenica, but none had been confirmed as having taken place at that time. Efforts were nevertheless focused at the highest levels to try to address the situation.” (A/54/549, para. 359.) Also on that day the Secretary-General’s Special Envoy, Thorvald Stoltenberg, was given instructions on how he was to proceed with high level negotiations with the Bosnian Serbs and, if appropriate, with the authorities in Belgrade. Among other things he was to obtain commitments for humane treatment of the refugees and displaced persons. He was urged to co-ordinate with the Special Representative of the Secretary-General and the European Union negotiator, Carl Bildt, who was hopeful of “be[ing] able to offer assistance through contact[s] with the authorities of the Federal Republic of Yugoslavia” (ibid., para. 360). 13. The mass executions began the next day, 14 July, and continued until 16 or 17 July. On 14 July Mr. Bildt met President Miloševic in Belgrade: “According to Mr. Bildt’s public account of that second meeting, he pressed the President to arrange immediate access for UNHCR to assist the people of Srebrenica, and for ICRC to start to register those who were being treated by the BSA as prisoners of war.” (A/54/549, para. 372; the “public account” is in Carl Bildt, Peace Journey: The Struggle for Peace in Bosnia (1998), p. 61.) (The meeting is referred to as a second meeting because Mr. Bildt had met President Miloševic and General Mladic at the same place the previous week (ibid., pp. 52-54).) Mr. Bildt also made a number of other demands as the 1999 Report records: “President Miloševic apparently acceded to the various demands, but also claimed that he did not have control over the matter. Miloševic had also apparently explained, earlier in the meeting, that the whole incident had been provoked by escalating Muslim attacks from the enclave, in violation of the 1993 demilitarization agreement. A few hours into the meeting, General Mladic arrived at Dobanovci. Mr. Bildt noted that General Mladic readily agreed to most of the demands on Srebrenica, but remained opposed to some of the [p357] arrangements pertaining to the other enclaves, Sarajevo in particular. Eventually, with President Miloševic’s intervention, it appeared that an agreement in principle had been reached. It was decided that another meeting would be held the next day in order to confirm the arrangements. Mr. Bildt had already arranged with Mr. Stoltenberg and Mr. Akashi [the Special Representative of the Secretary-General] that they would join him in Belgrade. He also requested that the UNPROFOR Commander also come to Belgrade in order to finalize some of the military details with Mladic.” (A/54/549, paras. 372-373.) On the same day, 14 July, the Security Council had again convened and adopted a presidential statement expressing deep concern about the ongoing forced relocation of tens of thousands of civilians which it characterized as a clear violation of the rights of the civilian population. “The Council was ‘especially concerned about reports that up to 4,000 men and boys had been forcibly removed by the Bosnian Serb party from the Srebrenica safe area’. It demanded that ‘in conformity with internationally recognized standards of conduct and international law the Bosnian Serb party release them immediately, respect fully the rights of the civilian population of the Srebrenica safe area and other persons protected under international humanitarian law and permit access by the International Committee of the Red Cross’.” (Ibid., para. 374.) 14. On 15 July Mr. Bildt briefed senior international officials on the result of his meeting the previous day with President Miloševic and General Mladic, who also joined the officials for a largely ceremonial meeting over lunch. The UNPROFOR Commander and General Mladic then met to finalize the details. At that point, while the international officials were aware of reports that grave human rights abuses might have been committed against the men and boys of Srebrenica, they were unaware that systematic executions had begun (ibid., para. 375). The points of agreement on Srebrenica were as follows: “Full access to the area for UNHCR and ICRC; ICRC to have immediate access to ‘prisoners of war’ to assess their welfare, register them, and review procedures at Bosnian Serb reception centres in accordance with the Geneva Conventions; UNPROFOR requests for resupply of Srebrenica, via Belgrade, [p358] Ljubovija and Bratunac, to be submitted on 17 July; Dutchbat troops in Srebrenica to be free to leave with their equipment on 21 July or shortly thereafter via Bratunac (both the UNPROFOR Commander and Mladic to observe the move); UNPROFOR to organize immediate evacuation of injured persons from Potocˇari and Bratunac, including provision of ambulances; UNPROFOR presence, ‘in one form or another’ [was] agreed for ‘key areas’.” (A/54/549, para. 377.) General Mladic plainly did not honour those agreements over the following days (ibid., paras. 383-390). 15. Those agreements were of course between UNPROFOR and General Mladic on behalf of the Pale authorities. Their significance for me, however, is that they followed directly from the discussions and negotiations between President Miloševic and General Mladic on the one hand and Mr. Bildt on the other. Given President Miloševic’s overall role in the Balkan wars and his knowledge, his specific relationship with General Mladic, and his involvement in the detail of the negotiations of 14 and 15 July, by that time he must have known of the change in plans made by the VRS command on 12 or 13 July and consequently he must have known that they had formed the intent to destroy in part the pro-tected group. I am convinced that that knowledge of the Respondent is proved to the necessary standard stated by the Court in its Judgment (para. 209). 16. Accordingly, I conclude that the Respondent was complicit in the genocide committed at Srebrenica in July 1995 in breach of Article III (e) of the Genocide Convention. (Signed) Kenneth KEITH. [p359] DECLARATION OF JUDGE BENNOUNA [Translation] I wish by means of this declaration to expand upon and clarify certain aspects of the Court’s reasoning in reaffirming its jurisdiction to decide this case. I shall then explain why I disagree with the Court’s finding that Serbia was not complicit in the genocide committed at Srebrenica. In respect of jurisdiction, I am in full agreement with the Court’s discussion of the authority of the 1996 Judgment as res judicata, in that the Judgment took as established the status of the Federal Republic of Yugoslavia (FRY) as a Member of the United Nations and a party to the Statute of the Court. While the Parties themselves did not dispute the question of membership status at the critical date when the proceedings were instituted, as the Court has pointed out, the world body was faced with an unprecedented situation, which, as observed by its Legal Counsel on 29 September 1992: “is not foreseen in the Charter of the United Nations, namely, the consequences for purposes of membership in the United Nations of the disintegration of a Member State on which there is no agreement among the immediate successors of that State or among the membership of the Organization at large” (United Nations, doc. A/47/ 485). The Security Council had taken note of the disagreement and drawn the conclusion that the FRY did not automatically succeed the Socialist Federal Republic of Yugoslavia (resolution 777 (1992)). Accordingly, the General Assembly, in its resolution 47/1 of 22 September 1992, suspended the FRY’s participation in the work of the General Assembly and stated that the FRY should apply for membership in the United Nations; the FRY nevertheless continued to take part in debates in the Security Council and to circulate its documents as official documents of the United Nations. In my view, the FRY’s “sui generis position” referred to by the Court in its Judgment of 3 February 2003 on the application for revision had to do with the will expressed within the United Nations to keep the State [p360] within the Organization but with reduced rights, pending its submission to the test set out in Article 4 of the Charter and a showing that it was a peace-loving State accepting the obligations under the Charter and able and willing to carry them out. It was not until 1 November 2000 that Serbia and Montenegro was admitted to the United Nations after the Miloševic régime was overthrown and its leader surrendered to the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague. It cannot however be inferred from this that a legal void obtained between the time the former Yugoslavia broke up and the date Serbia and Montenegro was subsequently admitted to membership, that is to say for nearly eight years. The FRY’s continued presence within the United Nations allowed the Organization to retain means of applying pressure to the country, notably by way of sanctions under Chapter VII of the Charter, until its conduct again conformed with international legality. The Court was fully cognizant of this situation in 1996 when it found jurisdiction to adjudicate the dispute referred to it by Bosnia and Herzegovina. It appears obvious to us that, given the unprecedented circumstances confronting the international community, Serbia and Montenegro’s change in attitude and its admission to the United Nations on 1 November 2000 could only take effect prospectively. In the Judgment on the application for revision the Court considered that: “Resolution 47/1 did not inter alia affect the FRY’s right to appear before the Court or to be a party to a dispute before the Court under the conditions laid down by the Statute.” (Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment, I.C.J. Reports 2003, p. 31, para. 70.) And, in ruling on jurisdiction in 1996, the Court was perfectly aware of the FRY’s position vis-à-vis the United Nations. That is why the Court, acting on an application for revision, wished to emphasize that “General Assembly resolution 55/12 of 1 November 2000 [on the FRY’s admission] cannot have changed retroactively the sui generis position which the FRY found itself in vis-à-vis the United Nations over the period 1992 to 2000, or its position in relation to the Statute of the Court and the Genocide Convention” (ibid., para. 71). In respect of the merits of this case, it is my view that all the conditions were met to justify a finding by the Court that the FRY was responsible for complicity with the Republika Srpska and its army in genocide at Srebrenica. This is why I have voted against point 4 of the operative clause. [p361] Consideration of the issue of the FRY’s complicity in genocide, within the meaning of Article III (e) of the 1948 Convention, has shown the extent to which the Court, when assessing the responsibility of the State, has relied on the findings by the International Criminal Tribunal for the former Yugoslavia in respect of the guilt of the main culprits in this tragedy, whether Mr. Miloševic or Mr. Mladic. Moreover, the Court has depended exclusively on the ICTY appellate judgment in the Krstic case in characterizing the crime committed at Srebrenica as the crime of genocide. As the Miloševic trial could not be completed and Mr. Mladic has not been arrested and handed over to the ICTY, it was not possible for the Court to obtain all the evidence needed to assess Serbia’s complicity in the genocide committed at Srebrenica. As a result, the Court gave the FRY the benefit of what the Court believed to be the subsisting doubt as to the conduct of the FRY’s senior leadership in July 1995, when the groundwork was being laid for the crime at Srebrenica, notably on the issue whether the FRY knew or had reason to know that the Republika Srpska army was preparing to commit genocide. In my opinion, the mens rea required of an accomplice is not the same as that required of a principal perpetrator, namely the specific intent (dolus specialis) to commit genocide, and it cannot be otherwise, since requiring such intent would be tantamount to equating an accomplice with a co-principal. In this connection, it is possible to refer, by way of analogy, to Article 16, entitled “Aid or assistance in the commission of an internationally wrongful act”, of the International Law Commission’s Articles on State Responsibility, providing: “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.” It follows from this Article, which can be seen as addressing “complicity” in inter-State relations, that the two requisite elements are assistance and knowledge of the circumstances of the internationally wrongful act, not participation in committing it. In this case the mens rea is the intent on the part of the accomplice to assist the principal perpetrator where the accomplice has actual or constructive knowledge of the nature of the crime which the principal is preparing to commit. This is the International Law Commission’s interpretation of Article III (e), on complicity, of the 1948 Genocide Convention (International Law Commission Report on the Work of its Fifty-third Session, 2001, pp. 146-147). It is a fact that much concordant evidence before the Court showed that the FRY should have known that genocide was being plotted and [p362] nevertheless continued to assist the Republika Srpska and its armed forces in their operations, including at Srebrenica. It is difficult to understand why the Court avoided any pronouncement on the definition of complicity, thereby leaving open the question whether an accomplice must share the specific intent (dolus specialis) of the principal perpetrator of genocide (Judgment, para. 421). The Court should however have rejected any such requirement, which the Respondent advocated, because it is contrary to the generally accepted definition of complicity and, as a matter of logic, because it would lead to the preposterous result of identifying accomplices with principal perpetrators. To avoid having to decide the question - and this is unfortunate for clarification of international law on the subject - the Court took the view that the accomplice must at least be aware of the principal’s specific intent; this enabled it then to conclude, on the basis of an interpretation of the facts which we find misguided, that Serbia had not been complicit. It is true that the ICTY’s findings in the trials of those mainly responsible, whether at the head of the FRY or the Republika Srpska, could have provided conclusive information dispelling all possible doubt as to the knowledge which the leaders of Serbia and Montenegro had of the plans being laid at Srebrenica. This naturally leads us to think that a thorough determination as to the State’s responsibility must in fact await the arrest and trial of those primarily responsible for the tragedy of Srebrenica and the light which may thereby be shed on the role played by the FRY. Thus, from the extensive argument made before the Court, I am convinced of the close relationship between individual criminal liability and State responsibility in proceedings of this type. Indeed, it is rare for a State bluntly to proclaim its intent to destroy, in whole or in part, an ethnical, cultural or religious group or to disclose its knowledge that such a crime was going to occur or to admit to having committed it. Thus, it is through the conduct of those whose acts bind the State and by way of their prosecution that responsibility can be traced to the State itself, except of course where the State in question has been defeated and is under occupation, its demolished organizational infrastructure having disgorged all the secrets in its files to international justice. But this is not the case of the FRY (Serbia and Montenegro), which went so far as to deny the Court access to the unexpurgated records of its “Supreme Defence Council” (letter of 16 January 2006 from the Agent of Serbia and Montenegro). That said, it is my view that the evidence before the Court already established the FRY’s complicity in genocide. The existence of the actus reus of the crime, namely the manifold aid and assistance furnished by Belgrade to the Republika Srpska and its army, the VRS, has been amply confirmed by the Court in its examination of the FRY’s responsibility for breach of the obligation to prevent [p363] genocide. This ongoing political, military and financial support existed before, during and after the massacre at Srebrenica. It remains to be considered whether the requisite mens rea was present, that is whether the aid and assistance continued even though the FRY knew or should have known that the recipients were preparing to commit an act of genocide and the FRY thus supported them in the pursuit of their aims. It is when aid and assistance are furnished in full knowledge of the recipient’s genocidal intent that they constitute complicity, thus being distinguishable from a violation of the obligation of prevention, in respect of which all that is required is an awareness of the risk of genocide. I recognize that the difficulty in proving in this case that Belgrade knew of the genocidal intent harboured by the Bosnian Serb Army arises from the fact that such intent did not come into being, according to the ICTY, until barely two days before the genocide was carried out between 13 and 17 July 1995. But this genuine difficulty does not automatically lead to the conclusion that Belgrade did not know and could not have known that genocide was being decided upon. First, a number of officers in Belgrade’s Yugoslav army (the VJ) were assigned to the Bosnian Serb army (VRS) headquarters at Han Pijesak and it is inconceivable that they did not inform their superiors (see the 10 April 2002 report by the Netherlands Institute for War Documentation, “Srebrenica - a ‘safe’ area”). Secondly, General Wesley Clark (an American military adviser) testified as follows at the Miloševic trial: “General Clark: I was still wrestling with the idea as to how it is that Miloševic could maintain that he had the authority and the power to deliver the Serb compliance with the agreement. And so I simply asked him. I said, ‘Mr. President, you say you have so much influence over the Bosnian Serbs, but how is it then, if you have such influence, that you allowed General Mladic to kill all those people in Srebrenica?’ And Miloševic looked at me and he paused for a moment. He then said, ‘Well, General Clark’, he said, ‘I warned Mladic not to do this, but he didn’t listen to me’. Question: Your understanding of what he was referring to, if you have an understanding beyond the words themselves, can you give it to us? General Clark: Certainly. Question: And explain, if it does have a context and understanding, how you arrive at that understanding. General Clark: Well, it was very clear what I was asking was about the massacre at Srebrenica. When I said ‘kill all these people’, [p364] it wasn’t a military operation, it was the massacre. And this was in fact what had been in the news.” (Miloševic, IT-02-54, hearing transcripts, 15 December 2003.) Indeed, a number of sources attest that General Mladic was in continuous contact with Miloševic before the massacres began, in particular between 7 and 14 July 1995 (see the Secretary-General’s Report pursuant to General Assembly resolution 53/35, entitled “The Fall of Srebrenica”, United Nations, doc. A/54/549, pp. 76-77). In our opinion it has therefore been shown that the authorities in Belgrade were fully apprised of the attack in Srebrenica and that they also should have known that preparations were under way for the slaughter of that city’s Muslim population. For proof of this, it is sufficient to recall that the “Scorpions”, a paramilitary force controlled by the Minister of the Interior of Serbia and Montenegro, were present at the very site where the massacre took place. The Court moreover acknowledges having received documents linking the “Scorpions” with the “MUP of Serbia [Serbian Ministry of the Interior]” or referring to them as “a unit of Ministry of Interiors of Serbia” (Judgment, para. 389), but it draws no conclusion from this in respect of complicity, confining itself to considering, for purposes of determining direct responsibility, whether these paramilitary forces were de jure organs of the Respondent or were completely dependent on it. Even assuming this not to be the case, the ties between these forces and the Serbian Ministry of the Interior and their proven participation in the massacre at Srebrenica could have led the Court at the very least to consider whether, as a result, Serbia was not kept abreast of the groundwork for and perpetration of the genocide at Srebrenica. Serbia, which struggled to keep afloat the Republika Srpska and its army, the VRS, the ranks of which included many officers whose careers depended on Belgrade, had developed manifold ties with the political and military organizations which decided upon the genocide and carried it out; Serbia therefore had full knowledge of the genocide, which makes it an accomplice in the crime and gives rise to its international responsibility. In my opinion, the Court, on the basis of the material already before it and without having to await further judgments by the ICTY, could have found complicity on the part of Serbia in the genocide perpetrated at Srebrenica; in so ruling, it would have done justice to the memory of the thousands of victims of the massacre, while meeting the expectations of their families. At the same time, this would not have been excessively harsh on Serbia nor in any way hindered the reconciliation and co-operation needed between Balkan States; while the Court is dealing with the actions of a country, that country was led by a régime described as follows by the [p365] Council of Ministers of Serbia and Montenegro in a declaration made on 15 June 2005: “Those who committed the killings in Srebrenica, as well as those who ordered and organized that massacre represented neither Serbia nor Montenegro, but an undemocratic régime of terror and death, against which the majority of citizens of Serbia and Montenegro put up the strongest resistance.” It is undoubtedly true that one consequence of State continuity is that the State remains responsible for any wrongful act committed in its name. Is this any reason to lapse into negationist thinking? Certainly not. One of the most valuable lessons of the tragedies which have darkened the last century and shocked the conscience of all mankind is that the past must be accepted in its whole truth and forgiveness must accordingly be sought for the suffering inflicted. This, without doubt, is the only way towards building a common future. While this process extends beyond justice in the strict sense, justice can contribute greatly to it. (Signed) Mohamed BENNOUNA. [p366] DECLARATION OF JUDGE SKOTNIKOV JURISDICTION In the 2004 Legality of Use of Force cases, the Court has acknowledged a certain legal reality, which exists independently from the wishes of the Court or the Parties and which cannot be any different in this case: Serbia and Montenegro had not been a Member of the United Nations, and consequently, was not a party to the Statute of the Court, before it was admitted on 1 November 2000 to the United Nations as a new Member under Article 4 of the United Nations Charter (see, for example, Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, pp. 314-315, para. 91). On that basis, the Court has concluded that Serbia and Montenegro did not have access to the Court at the time of institution of proceedings and for that reason, the Court decided that it had no jurisdiction to entertain these cases (ibid., pp. 327-328, paras. 127 and 129). However, what the Court’s reasoning in the present case means is that, by application of the principle of res judicata in incidental proceedings, the Court can create parallel realities: namely, in this case, unlike in the [p367] Legality of Use of Force cases, the existence of access to the Court by the Respondent by virtue of its finding on jurisdiction in the 1996 Judgment on Preliminary Objections (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 595). The notion that the issue of access by the Respondent to the Court under Article 35, paragraph 1, of the Statute must be considered as having been dealt with in the 1996 Judgment, although it undoubtedly was not, is a further blow to the reality which, according to the Judgment, may be altered as “a matter of logical construction” if the integrity of the principle of res judicata so requires: “the legal complications of the position of the Respondent in relation to the United Nations were not specifically mentioned in the 1996 Judgment. The Court stated . . . that ‘Yugoslavia was bound by the provisions of the [Genocide] Convention on the date of the filing of the Application in the present case’ (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (BosniaandHerzegovinav.Yugoslavia),PreliminaryObjections,Judgment, I.C.J. Reports 1996 (II), p. 610, para. 17), and found that ‘on the basis of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, it has jurisdiction to adjudicate upon the dispute’ (ibid., p. 623, para. 47 (2) (a)). Since . . . the question of a State’s capacity to be a party to proceedings is a matter which precedes that of jurisdiction ratione materiae, and one which the Court must, if necessary, raise ex officio, ... this finding must as a matter of construction be understood, by necessary implication, to mean that the Court at that time perceived the Respondent as being in a position to participate in cases before the Court. On that basis, it proceeded to make a finding on jurisdiction which would have the force of res judicata. The Court does not need, for the purpose of the present proceedings, to go behind that finding and consider on what basis the Court was able to satisfy itself on the point. Whether the Parties classify the matter as one of ‘access to the Court’ or of ‘jurisdiction ratione personae’, the fact remains that the Court could not have proceeded to determine the merits unless the Respondent had had the capacity under the Statute to be a party to proceedings before the Court.” (Judgment, para. 132.) “That the FRY had the capacity to appear before the Court in accordance with the Statute was an element in the reasoning of the 1996 Judgment which can - and indeed must - be read into the Judgment as a matter of logical construction.” (Ibid., para. 135.) It is obvious that the notion of an “unstated element of the reasoning” is not compatible with Article 56 of the Statute, which provides that “[t]he judgment shall state the reasons on which it is based”. [p368] It should also be noted that the part of the 1996 Judgment dealing with jurisdiction ratione personae concerned only the question of whether the Applicant and the Respondent were parties to the Genocide Convention, and the assumption of that Judgment was that the Convention satisfies the requirement of Article 35, paragraph 2, of the Statute, and thus represents an independent and sufficient basis for the Respondent’s access to the Court. This was in line with a provisional view which the Court had taken in the 1993 Order indicating provisional measures: “proceedings may validly be instituted by a State against a State which is a party to such a special provision in a treaty in force, but is not party to the Statute, and independently of the conditions laid down by the Security Council in its resolution 9 of 1946” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 14, para. 19). That is why the Court did not address the uncertain and contradictory issue of the Respondent’s access to the Court under Article 35, paragraph 1, either in 1993 or in 1996. However, in the 2004 Legality of Use of Force Judgments the Court addressed the issue of access under both Article 35, paragraph 1 and paragraph 2, and stated that the “treaty in force” clause, contained in paragraph 2, concerns only the treaties which were in force at the date of the entry into force of the Statute (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, pp. 323-324, para. 113). The idea that the parallel reality, created by the Court, is as solid as the one existing independently from it, is expressed in the Judgment in no ambiguous terms: “However fundamental the question of the capacity of States to be parties in cases before the Court may be, it remains a question to be determined by the Court, in accordance with Article 36, paragraph 6, of the Statute, and once a finding in favour of jurisdiction has been pronounced with the force of res judicata, it is not open to question or re-examination, except by way of revision under Article 61 of the Statute. There is thus, as a matter of law, no possibility that the Court might render ‘its final decision with respect to a party over which it cannot exercise its judicial function’, because the question whether a State is or is not a party subject to the jurisdiction of the Court is one which is reserved for the sole and authoritative decision of the Court.” (Judgment, para. 138.) Then, the Court affirms that it cannot possibly be acting ultra vires in establishing, by applying the principle of res judicata, its own parallel reality: [p369] “the operation of the ‘mandatory requirements of the Statute’ falls to be determined by the Court in each case before it; and once the Court has determined, with the force of res judicata, that it has jurisdiction, then for the purposes of that case no question of ultra vires action can arise, the Court having sole competence to determine such matters under the Statute” (Judgment, para. 139). The Court’s line of argument is based on the notion of a general finding on jurisdiction reached in incidental proceedings being absolute and exhaustive in nature (it goes without saying that the Court’s decisions on specific preliminary objections have the full authority of res judicata). However, that clearly was not the view of the Court when it authorized the Registrar to inform the Respondent that: “The Court moreover, as was in fact observed by Serbia and Montenegro in the ‘Initiative’ document, and as the Court has emphasized in the past, is entitled to consider jurisdictional issues proprio motu, and must ‘always be satisfied that it has jurisdiction’ (Appeal Relating to the Jurisdiction of the ICAO Council, I.C.J. Reports 1972, p. 52). It thus goes without saying that the Court will not give judgment on the merits of the present case unless it is satisfied that it has jurisdiction. Should Serbia and Montenegro wish to present further argument to the Court on jurisdictional questions during the oral proceedings on the merits, it will be free to do so.” (Letter of 12 June 2003.) The content of this letter was a clear indication to the Parties that no final decision on jurisdiction had been taken, for it would have been unthinkable for the Court to say to the Respondent that it was free to present further argument to the Court on jurisdictional questions without entertaining a possibility to consider them positively. It would have been inconceivable for the Court to mention proprio motu action without having considered the possibility of taking this action, and the further possibility that the result of this action could be a negative finding on jurisdiction. Otherwise, the invitation to Serbia and Montenegro to argue jurisdictional questions in the merits phase would be totally without purpose. The letter of June 2003 indicated the admissibility of the objections of the Respondent to the application of Article 35 of the Statute. Indeed, the objections to the Court’s jurisdiction were made as a part of the final submissions and have been rejected by the Court in the dispositif of the present Judgment. The Court’s position is based on the interpretation of the res judicata principle in incidental proceedings as absolute and exhaustive. This interpretation is a sharp departure from its previous more cautious and nuanced position on this subject. It comes into conflict with the “non-exhaustive character of preliminary objection proceedings” (by which [p370] “whether or not matters of jurisdiction have been raised at the stage envisaged for preliminary objections, they may still be raised later, even by the Court proprio motu” (Shabtai Rosenne, The Law and Practice of the International Court 1920-2005, Vol. II, p. 876, II.229)). It limits the right and the duty of the Court to act proprio motu to ensure that at all stages of the proceedings jurisdiction indeed exists. Finally, as is the case in this proceeding, it may bring the Court into conflict with legal facts which are created by entities other than the Court and with its own findings reached in a different case on the very same facts. There is also a touch of the Court’s own infallibility in its reasoning which is difficult for me to accept. For the reasons stated above, I could not support the conclusion of the Court as contained in paragraph 1 of the operative clause of the Judgment. MERITS Under Article IX of the Genocide Convention the Court is to settle disputes between the Contracting Parties, “including those [disputes] relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III”. The underlying logic of the Judgment is that no State can be held responsible for genocide or any of the other acts enumerated in Article III unless the Genocide Convention imposes on the Contracting Parties an obligation not to themselves commit genocide and the other acts enumerated in Article III of the Convention. The Judgment states that “[s]ince Article IX is essentially a jurisdictional provision, the Court considers that it should first ascertain whether the substantive obligation on States not to commit genocide may flow from the other provisions of the Convention” (Judgment, para. 166). The Judgment recognizes that “such an obligation is not expressly imposed by the actual terms of the Convention” (ibid.). Then, according to the logic of the Judgment, this obligation must be implied in Article I: “the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide” (ibid.). The Judgment also concludes that the obligation of States to not commit genocide themselves is applicable to the other acts enumerated in Article III (Judgment, para. 167). I do not find this construction sustainable for the following reasons. First, the very idea of an unstated obligation is objectionable in general. Second, the “unstated obligation” in question does not fit into the Convention. The Convention, in its substantive part, deals with the criminal culpability of individuals. The Judgment addresses this fact and attempts to reconcile it with the idea of a State’s obligation to not commit the very criminal acts it undertakes to prevent and punish. This [p371] attempt, however, is not persuasive. Nor could it be, since it is simply not what the Convention actually says. Third, the notion of a State’s obligation not to commit genocide, and the other Article III acts, comes into conflict with the very foundations of the Genocide Convention since there is no such thing under the Convention as genocide (or any of the other Article III acts) which is not a crime. Yet, it is generally accepted that there is no such thing as State criminal responsibility. The Court, the parties, the International Law Commission (the ILC), are all in agreement that States do not commit crimes. Con-sequently, what is achieved by introducing the concept of a State itself committing genocide is decriminalization of genocide, which as a result is transformed into an internationally wrongful act. This transformation is as amazing as it is impossible under the Genocide Convention. The Court, while concluding that “the Contracting Parties to the Convention are bound not to commit genocide” makes a clarification that the Parties are under the obligation not to do so “through the actions of their organs or persons or groups whose acts are attributable to them” (Judgment, para. 167). The Court states that “if an organ of the State, or a person or group whose acts are legally attributable to the State, commits any of the acts proscribed by Article III of the Convention, the international responsibility of that State is incurred” (Judgment, para. 179). This is absolutely true. A State’s responsibility is engaged when a crime of genocide is committed by an individual whose acts are legally attributable to it. No “unstated obligation” for States not to themselves commit genocide is needed for this responsibility to be incurred through attribution. Therefore, I cannot accept the Court’s reasoning that, unless the Convention is read as containing an obligation on State parties not to commit genocide themselves, States would not be “forbidden to commit such acts through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State concerned under international law” (Judgment, para. 166). The ILC stated the obvious when it said: “The State is a real organized entity, a legal person with full authority to act under international law. But to recognize this is not to deny the elementary fact that the State cannot act of itself. An ‘act of the State’ must involve some action or omission by a human being or group: ‘States can act only by and through their agents and representatives’.” (Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, p. 71.) [p372] It would indeed be extraordinary to read the Genocide Convention as allowing States “as such” to commit genocide, or any of the other Article III acts, for their responsibility will be incurred when a crime of genocide is committed by persons capable of engaging State responsibility. Generally, as a matter of principle, wherever international law criminalizes an act, if that act is committed by an individual capable of engaging State responsibility, the State can be held responsible. The fact that some international conventions criminalizing certain acts contain “escape clauses”, as in the cases of the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of Acts of Nuclear Terrorism, excluding armed forces during an armed conflict from the scope of these conventions, [FN1] only confirms this principle. This principle is definitely embodied in the Genocide Convention, which first, specifically refers in Article IX to the responsibility of a State for genocide, a crime committed according to its substantive part by individuals, and second, reflects the absolute prohibition of genocide under general international law. [FN2] The artificial notion of a State’s obligation under the Genocide Convention not to commit genocide does nothing to reinforce this air-tight prohibition. ------------------------------------------------------------------------------------------------- [FN1] See the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1979, Art. 19, para. 2, and the International Convention for the Suppression of Acts of Nuclear Terrorism, adopted by the General Assembly of the United Nations on 13 April 2005, Art. 4, para. 2. [FN2] The fact that Article IX is the subject of reservations by a number of States parties, does not change in any way the absolute character of the prohibition of genocide as reflected in the Genocide Convention. A reservation to Article IX does not absolve a State from responsibility for genocide, it only prevents this Court from settling a dispute related to this responsibility. ------------------------------------------------------------------------------------------------- There has been some measure of agreement between the Parties on this point. According to the Respondent “for a State to be responsible under the Genocide Convention, the facts must first be established. As genocide is a crime, it can only be established in accordance with the rules of criminal law, under which the first requirement to be met is that of individual responsibility. The State can incur responsibility only when the existence of genocide has been established beyond all reasonable doubt. In addition, it must then be shown that the person who committed the genocide can engage the responsibility of the State . . .” (CR 2006/18, p. 20, para. 38.) According to the Applicant “in the full meaning of the term, genocide is an international crime [p373] which not only engages the criminal responsibility of the individuals committing it but also that of the State to which the acts committed by individuals, acting de jure or de facto on its behalf, may be ascribed” (CR 2006/33, p. 31, para. 44). Should the Court have adopted the approach according to which State responsibility is incurred when the crime of genocide or the other Article III crimes are committed by individuals capable of engaging such responsibility, it would have stayed on the firm ground of the Convention and would have been perfectly able to make a determination required by Article IX as to “the responsibility of a State for genocide or for any of the other acts enumerated in Article III”. Article IX widens the scope of dispute settlement beyond the usual “interpretation and application” (the addition of “fulfilment” is not particularly significant) to include the responsibility of a State for genocide and the other Article III acts. However, nothing in Article IX suggests that the Court is empowered to go beyond settling disputes relating to State responsibility and to actually conduct an enquiry and make a determination whether or not the crime of genocide was committed. The Court simply cannot establish individual responsibility for the crime of genocide by persons capable of engaging a State’s responsibility since it lacks criminal jurisdiction. In particular, by reason of the lack of criminal jurisdiction, the Court cannot establish the existence or absence of genocidal intent, since nothing in the Genocide Convention indicates that it deals with genocidal intent in any other sense than it being a requisite part, a mental element, of the crime of genocide. What the Court can and must do is to make a finding as to whether it has been sufficiently determined that genocide was committed. To make this determination, it would have been sufficient for the Court in this case to rely on the findings of the International Criminal Tribunal for the former Yugoslavia (the ICTY), to the extent they are in conformity with the Genocide Convention, which is the sole basis for jurisdiction in these proceedings. Instead, the Court adopted a position according to which it can itself make a determination as to whether or not genocide was committed without a distinct decision by a court or tribunal exercising criminal juris-diction. The Judgment offers no explanation as to the legal basis of this position. Rather the Court constructs for itself “the capacity” to do so (Judgment, para. 181), which is nowhere to be found in the Genocide Convention. The Court asserts that: “Any other interpretation could entail that there would be no legal recourse available under the Convention in some readily conceivable [p374] circumstances: genocide has allegedly been committed within a State by its leaders but they have not been brought to trial because, for instance, they are still very much in control of the powers of the State including the police, prosecution services and the courts and there is no international penal tribunal able to exercise jurisdiction over the alleged crimes; or the responsible State may have acknowledged the breach.” (Judgment, para. 182.) However, reference to the absence of legal recourse under certain circumstances as an argument au contrario neither supports nor clarifies the Court’s position. No recourse would be available, for example, when a State in question has made a reservation to Article IX. As to the above example about State leaders still in control of their country, on the contrary, legal recourse would remain available if the Court was properly seised; moreover, the Court, after establishing its jurisdiction on a prima facie basis, can, if requested, indicate provisional measures of a binding character. Furthermore, to deal immediately with these circumstances an action of the United Nations Security Council, under Chapter VII of the United Nations Charter, would probably be required. As to the possible unavailability of an international penal tribunal, the Security Council can establish an ad hoc criminal tribunal, if the State in question is not party to the Rome Statute of the International Criminal Court, opened for signature on 17 July 1998. And, of course, should a State acknowledge its responsibility for genocide before this Court, questions of establishing whether genocide was committed and whether a Respondent is responsible for it simply would not arise, allowing the Court to proceed straight to the issue of reparations. The proposition that the Court not only determines a State’s responsibility for genocide, but also establishes whether genocide was committed or not, flows, of course, from the idea of a State’s obligation to not commit genocide itself, which the Court infers from the Convention. According to that construction, the Court simply determines the violation of this “treaty obligation”. Therefore, following that logic, the lack of criminal jurisdiction is not an impediment at all, since the Court does not deal with genocide as a crime which, of course, is what it indisputably is under the Genocide Convention. This approach is inconsistent with both the Genocide Convention and the Court’s Statute. Having stated that it “must itself make its own determination of the facts which are relevant to the law which the Applicant claims the Respondent has breached”, the Court acknowledges that “[m]any of the allegations before the Court have already been the subject of the processes and decisions of the ICTY” (Judgment, para. 212) and concludes that: [p375] “it should in principle accept as highly persuasive relevant findings of fact made by the Tribunal at trial, unless of course they have been upset on appeal. For the same reasons, any evaluation by the Tribunal based on the facts as so found for instance about the existence of the required intent, is also entitled to due weight.” (Judgment, para. 223.) After having thus established in principle a possibility of arriving at conclusions different to those of this criminal tribunal as to whether or not genocide was committed, the Court proceeded to examine the allegations which had already been considered and decided on by the ICTY, thus putting itself potentially on a collision course with the Tribunal. This kind of collision of course has not occurred in practice. However, this does not make the Court’s failure to strike a proper balance under the Genocide Convention between the Court’s jurisdiction and that of a criminal tribunal any lesser. At the same time, a clear distinction must be made between the Court conducting its own investigation and coming up with legally binding findings as to whether genocide was committed, which it cannot do, and the Court applying the test of the Genocide Convention to the decisions of the ICTY on genocide, which it must do, given that its jurisdiction is based solely on the Genocide Convention and the jurisdiction of the Tribunal is based on its Statute. That test is whether the decisions of the ICTY are consistent with the Genocide Convention. Should a finding of the ICTY fail that test, the Court must disregard this particular finding in deciding the case before it. Unfortunately, the Court, while applying the test of Genocide Convention to the decisions of the ICTY, did not do it to the extent necessary. The Court concluded that acts of genocide were committed by “members of the VRS [Army of the Republika Srpska] in and around Srebrenica from about 13 July 1995” (Judgment, para. 297). In reaching this conclusion the Court relied on the findings of the ICTY in the Krstic and Blagojevic cases (Krstic, IT-98-33-A, Judgment of Appeals Chamber, 19 April 2004 (hereafter “Krstic”) and Blagojevic and Jokic´, IT-02-60-T, Judgment of Trial Chamber I, 17 January 2005 (hereafter “Blagojevic”)). These two individuals (only Krstic’s conviction is final) were convicted of a crime established by the Tribunal’s Statute (Art. 7, para. 1), but not recognized by the Genocide Convention, namely aiding and abetting genocide. As found by the ICTY, neither Krstic nor Blagojevic had genocidal intent. (“There was a demonstrable failure by the Trial Chamber to supply adequate proof that Radislav Krstic possessed the genocidal intent” (Krstic, para. 134).) The Tribunal, basing itself on its Statute, has held that persons furnishing aid and assistance can be convicted of aiding [p376] and abetting genocide without having genocidal intent. The Genocide Convention, however, requires genocidal intent for every proscribed act enumerated in it, which has been recognized by the ICTY itself (Krstic, para. 142) and has not been disputed by the Parties. Consequently, these two - and so far the only - convictions of charges related to genocide cannot be taken into account by the Court since its jurisdiction is based solely on the Genocide Convention whereas these convictions are not. Nevertheless, these two Judgments are relevant to the case before the Court to the extent that they state that genocide occurred in Srebrenica. Indeed, in the final analysis the whole case in the present Judgment is made on the basis of this particular finding by the ICTY. The question is, however, whether or not this finding has been made within the specific scope of the Genocide Convention. The way the ICTY has dealt, inter alia, with the issue of genocidal intent suggests that the answer to this question is likely to be negative. In the Blagojevic case the Trial Chamber concluded that Bosnian Serb forces had intended to destroy the Muslim population of Srebrenica (Blagojevic, para. 677). In the Krstic case the ICTY was slightly more specific, referring to some members of the VRS Main Staff. The Appeals Chamber decided that, in concluding that some (unnamed or unknown) members of the VRS Main Staff intended to destroy the Bosnian Muslims of Srebrenica, the Trial Chamber “did not depart from the legal requirements for genocide” (Krstic, para. 38). Tellingly, the Appeals Chamber did not say that the Trial Chamber had not departed from the legal requirements of the Genocide Convention, for, inter alia, it is highly doubtful that, according to the Convention, genocidal intent, a mental element to be established in criminal proceedings, can be established without trying (or at the very least identifying and presenting the necessary proof) a person or persons harbouring it. As a matter of fact, the Tribunal itself has recognized that it is necessary to have insight into the state of mind of alleged perpetrators in order to draw the inference that those perpetrators had genocidal intent. In the Stakic´ case it stated: “Having heard all the evidence, the Trial Chamber finds that it has not been provided with the necessary insight into the state of mind of alleged perpetrators acting on a higher level in the political structure than Dr. Stakic´ to enable it to draw the inference that those perpetrators had the specific genocidal intent.” (IT-97-24-T, Judgment, 31 July 2003, para. 547.) [p377] It is very difficult to reconcile this requirement of “necessary insight into the state of mind of alleged perpetrators”, which is fully compatible with the Genocide Convention, and the approach adopted by the ICTY in the Krstic case: “The inference that a particular atrocity was motivated by genocidal intent may be drawn, moreover, even where the individuals to whom the intent is attributable are not precisely identified.” (Krstic, para. 34.) Not only does this approach not appear to be in conformity with the requirements of the Genocide Convention, it also raises questions related to the fairness of criminal proceedings and the accuracy of their conclusions. What if, for example, at a later stage, during a possible trial of so far unnamed members of the VRS Main Staff, the Tribunal, after obtaining the “necessary insight into the state of mind of alleged perpetrators”, finds that these individuals did not possess genocidal intent? Or, are these individuals guilty even before they have been tried? And, since they are not, the question remains open as to whether the massacre in Srebrenica can be qualified as genocide. The conclusion of the Court in these circumstances should have been that the commission of genocide or of the other Article III acts in Srebrenica has not been sufficiently established. In spite of the difficulties I have with the Court’s interpretation of the Genocide Convention, as outlined above, as well as, consequently, with the wording of paragraphs 2, 3 and 4 of the operative clause of the Judgment, I have found myself in a position to vote for these paragraphs since in substance they do contain the answer to the core question of this case: the Respondent is not responsible for genocide or any of the other acts enumerated in Article III. My vote in favour of these paragraphs does not in any way compromise my position that it has not been sufficiently established that the massacre in Srebrenica can be qualified as genocide. The additional difficulty I have is with the Court’s treatment of the obligation to prevent under the Genocide Convention, which I find to be extraordinarily expansive. The views of the Applicant presented on the subject of prevention were quite reasonable: “This obligation is expressed in very general and, as it were, introductory terms in Article I, which closely follows the wording of the title of the Convention. Later provisions, in Articles IV to VIII, add a whole series of specific details and clarifications essential to its implementation. However, these further provisions focus primarily on punishment, while rules on prevention are scantly developed. [p378] It is true, however, that no precise boundary can be established between prevention and punishment. First, it is well known that a well-organized system of enforcement, capable of imposing penalties proportionate to the seriousness of offences, plays a very important preventive role; and secondly, effective prevention calls for the punishment of any acts preparatory to genocide (such as conspiracy to commit genocide or attempted genocide, etc.), or again acts constituting incitement to commit genocide. In other words, the punishment of most of the so-called ‘ancillary’ acts identified in Article III of the Convention . . . plays a definite, though obviously non-exhaustive, role in the area of prevention.” (CR 2006/11, p. 16, paras. 1-2.) “The lack of territorial limitations on the obligation to prevent and punish the crime of genocide, which [the Court] highlighted in 1996, means therefore that a State party to the Convention must discharge this obligation even outside its sphere of territorial sovereignty, when it exercises - whether legally or illegally - effective control over a territory outside its borders by assuming prerogatives of public authority in that territory.” (Ibid., p. 20, para. 12.) The Respondent did not challenge this approach. On its part it was said that “[p]reventive measures would be legislation directed against genocide” (CR 2006/20, p. 21, para. 343). And that, “the Genocide Convention can only apply when the State concerned has territorial jurisdiction or control in the areas in which the breaches of the Convention are alleged to have occurred” (CR 2006/ 16, p. 15, para. 20). Accordingly, there was no dispute between the Parties about the interpretation of the duty to prevent. However, the Court has chosen to come up with an initiative on the subject stating that “the duty to prevent places States under positive obligations, to do their best to ensure that such acts do not occur” (Judgment, para. 432) and adding that, “a State may be found to have violated its obligation to prevent even though it had no certainty, at the time when it should have acted, but failed to do so, that genocide was about to be committed or was under way; . . . it is enough that the State was aware, or should normally have been aware, of the serious danger that acts of genocide would be committed” (Judgment, para. 432). The Court thus equates the notion of “due diligence” with the duty to prevent under the Genocide Convention and applies it to the international arena where various States having varying capacities “to influence effectively the action of persons likely to commit, or already committing, [p379] genocide” (Judgment, para. 430), each within its capacity “to influence” must do their best to ensure that acts of genocide do not occur. This may be seen as a commendable appeal to the nations of the world to do all they can to prevent genocide but it is not a proper interpretation of the Convention according to customary international law, as reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. The content which the Court provides for the obligation to prevent (rather than interpreting it) represents a political statement which is clearly outside the specific scope of the Genocide Convention. What the Court should have said on the subject is, in my opinion, the following: a State fails its duty to prevent under the Genocide Convention if genocide is committed within the territory where it exercises its jurisdiction or which is under its control. Even if the perpetrators are not its organs or persons capable of engaging its responsibility under customary international law, the failure is still there. Even if the State in question takes the exhaustive measures required by the Convention, such as enactment of relevant legislation, should genocide occur within the territory under its jurisdiction or control, it still fails its duty to prevent. The duty to prevent is a duty of result and not one of conduct. Instead the Court has introduced a politically appealing, but legally vague, indeed, hardly measurable at all in legal terms, concept of a duty to prevent with the essential element of control being replaced with a highly subjective notion of influence. I do not think that the Court’s interpretation of the duty to prevent as a duty of conduct and not one of result (Judgment, para. 430), which is a logical element of the above-mentioned concept, is a service to the cause of preventing genocide. Consequently, I could not support the conclusion of the Court as contained in paragraph 5 of the operative clause. In addition, my negative vote on this paragraph also reflects my position, as outlined above, that it has not been sufficiently established that the massacre in Srebrenica can be qualified as genocide. For the latter reason, I could not support the finding of the Court contained in paragraph 7 of the operative clause as to the Respondent’s noncompliance with the provisional measures ordered by the Court on 8 April and 13 September 1993. However, I hold the view that the authorities of the Federal Republic of Yugoslavia did not act on these Orders as they should have. Should they have done so, this could have had an effect of averting many of the atrocities other than genocide. The fact that these atrocities occurred in Bosnia and Herzegovina during the relevant period has not been denied by the Respondent. I supported the finding contained in paragraph 6 since the Respondent [p380] has failed to provide the Court with a clear-cut statement that it has done all in its power to apprehend and transfer Ratko Mladic, indicted for genocide and complicity in genocide, for trial by the ICTY. I agree with the Court’s decision in paragraph 8 of the operative clause as to the Respondent’s obligation to co-operate with that Tribunal in respect of individuals accused of genocide or any of the other acts proscribed by Article III of the Convention. (Signed) Leonid SKOTNIKOV. [p381] DISSENTING OPINION OF JUDGE AD HOC MAHIOU [Translation] [p383] INTRODUCTION 1. Beyond the terrible human tragedy that it represents, as the Parties in dispute admit that some 100,000 individuals lost their lives in usually very cruel circumstances, while others were left with an unspeakable range of physical and psychological scars, the Bosnia and Herzegovina v. Serbia and Montenegro case is probably the most important, the most complex and the most difficult one ever to come before the International Court of Justice. It is exceptional just in terms of proceedings, as the case has been before the Court for over 14 years now and the hearings on the merits were constantly put back by an unparalleled procedural battle; all possible and conceivable means have been called upon and exploited beyond the point of what the Court’s Statute might legitimately permit; it therefore seems appropriate to review the course of the proceedings and the conduct of the Respondent. It is also exceptional for the volume of written arguments, pleadings and testimony. It is exceptional above all in that it is the first time that the Court has been seised to adjudicate on an accusation of genocide and its consequences, given that genocide is considered to be the worst crime of which either an individual or a State, as in the present instance, can be accused. This case has allowed the Court to apply the Convention on the Prevention and Punishment of the Crime of Genocide and to interpret most of its provisions, some of which have given rise to considerable debate as to their meaning and the scope which should be attributed to them. [FN1] It was incidentally in its reference to genocide in the Armed Activities on the Territory of the Congo case that the Court put to one side its hesitations and reservations regarding the jus cogens, by expressly asserting that the rule prohibiting genocide assuredly constituted a peremptory norm of international law (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), Judgment, I.C.J. Reports 2006, pp. 31-32, para. 64). ------------------------------------------------------------------------------------------------- [FN1] The Court has thus contradicted the opinion of one author who rather rashly asserted the following: “The Genocide Convention is unnecessary when applicable and inapplicable when necessary” (G. Schwarzenberger, International Law, Vol. 1, 3rd ed., 1957, p. 143). ------------------------------------------------------------------------------------------------- 2. The importance, complexity and difficulty also and especially extend to the merits of the case, as is evidenced by the length of the Court’s Judgment, most of the considerations of which could be commented upon to express agreement or dissent regarding one aspect or another of the assertions made, the reasoning used and the findings arrived at. I did not, however, regard it as appropriate or relevant to do so; I humbly submit that the purpose of a judge’s separate opinion, even a dissenting one, is not to engage in excessively lengthy considerations of substance, to undertake a re-examination and re-appraisal of each of the points addressed by the Court and to put together, as it were, another Judgment; the aim is rather to focus on a number of key elements in the Court’s approach in [p384] order to identify the points of fact and of law which may lead one to agree or disagree with all or part of its reasoning and findings. For example, it would appear that the novelty and singularity of the issues raised for the Court by this genocide case have revealed not only shortcomings in the approach adopted, but possibly also the limits to the exercise of the Court’s judicial functions. While the Court holds itself to be fully competent to settle all the difficult and complex issues surrounding an allegation of genocide, it did not see fit to provide itself with the real means to carry out such a task. The aim of this opinion is essentially, on the one hand, to record my views on certain aspects of the issues raised by the Court, even where I do not disagree with the solutions applied, and, on the other hand, to indicate and explain, with all due respect for the Court, my points of contention as regards the approach it adopted in per-forming its judicial function and the major findings at which it has arrived. 3. As indicated above, I do not intend to address all the issues which could legitimately be raised by each of the points considered by the Court, or even a majority of them; the present opinion will be confined to a few major points which, to my mind, constitute the crux of the problem. It is true, nevertheless, that a great many of the issues are linked more or less solidly to each other and a response to one often implies, explicitly or implicitly, a response to the other; this allows for a leaner elucidation of the arguments which follow, addressing in turn the course of the proceedings, State responsibility in respect of the Convention for the Prevention and Punishment of the Crime of Genocide, the question of evidence, the problem of intent in the crime of genocide and the issue of the attributability of the crime of genocide and related acts to the Respondent. I. THE COURSE OF THE PROCEEDINGS AND RELATED EFFECTS 4. Although it is the Respondent’s prerogative to draw on all the possibilities afforded by the Court’s Statute and Rules to assert its point of view, I believe it is worthwhile, in this case, to review the course of the proceedings, as the Court was obliged to rule several times on its jurisdiction, after having established it 11 years earlier in 1996. Given that the course of these proceedings was dominated by the Respondent’s initiatives, a review of its conduct and all the resulting implications will be instructive. 5. From 1992 to 2000, the Federal Republic of Yugoslavia (hereinafter the FRY) claimed to be the only continuator State of the former Socialist Federal Republic of Yugoslavia (SFRY) and consistently maintained [p385] that it was bound by all the international commitments entered into by the former SFRY. It regarded itself as a Member of the United Nations and thus a party to the Statute of the Court, and certainly did not hesitate to use the right of access to the Court that is granted by the Statute. As the respondent State in the present case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), the FRY disputed the Court’s jurisdiction, but on grounds other than Article IX of the Genocide Convention; not only did it take part in the proceedings by submitting requests for the indication of provisional measures in response to the requests filed by Bosnia and Herzegovina in 1993 and by raising preliminary objections in 1995, but it filed counter-claims in 1997. The FRY also appeared before the Court as an Applicant; on 29 April 1999 it filed ten Applications concerning NATO Member States. Finally, the FRY is the Respondent in another case pending before the Court, having been accused in the Application filed by Croatia on 2 July 1999 of violations of the Genocide Convention. 6. In September 2000, Mr. Koštunica won the presidential election and the democratic opposition implemented a change of régime in Serbia and Montenegro. The new Government of Serbia and Montenegro then decided to alter its position concerning the automatic continuation of the legal personality of the former SFRY, its membership of the United Nations and its status as a party to the Court’s Statute and to the Genocide Convention. Consequently, it applied for admission to the United Nations as a new Member, eight years after the Security Council and General Assembly resolutions encouraging it to do so. The FRY was admitted to the United Nations on 1 November 2000. Subsequently, the FRY adopted a completely different attitude from the one held before that date, stating that it had discovered a posteriori that prior to 1 November 2000 it had not been a Member of the United Nations and, consequently, had not been a party to the Court’s Statute or to the Genocide Convention. Thus on 23 April 2001, the Respondent filed an Application seeking revision of the Judgment of 11 July 1996 on the Preliminary Objections (in which the Court established its jurisdiction under Article IX of the Genocide Convention), on the grounds that its admission to the United Nations on 1 November 2000 unequivocally demonstrated that it had not been a party to the Statute of the Court or to the Genocide Convention before that date. On 4 May 2001, it submitted an Initiative to the Court to reconsider ex officio jurisdiction in the present case, which was based on the same arguments to challenge the Court’s jurisdiction. Similarly, in its oral arguments in 2006, Serbia and Montenegro defended the position that it “was not a party to the Statute, and had no access to the Court when the Application was submitted . . . the Respondent never became [p386] bound by Article IX of the Genocide Convention. Serbia and Montenegro did not consent to the jurisdiction of this honoured Court in this case.” (CR 2006/12, p. 47, para. 1.11.) 7. It should be pointed out that the identity of the State, as a legal person, is not affected by changes in the stance and composition of its rulers. And of course the Court is not open to governments, but to States. Moreover, international law attributes legal consequences to certain manifestations of the unilateral will of States. Hence the acknowledgment of the situation, notification, acquiescence and conduct of a State during proceedings all give rise to obligations for the States concerned. The jurisprudence of the International Court of Justice has attributed legal consequences to State conduct on a number of occasions: Arbitral Award Made by the King of Spain on 23 December 1906, I.C.J. Reports 1960, p. 213, “Nicaragua, by express declaration and by conduct, recognized the Award as valid and it is no longer open to Nicaragua to go back upon that recognition and to challenge the validity of the Award”; Temple of Preah Vihear (Cambodia v. Thailand), I.C.J. Reports 1962, p. 32, “that Thailand is now precluded by her conduct from asserting that she did not accept it”. Although the Court had already had reason to observe that “[i]t is indeed unusual that a State which has submitted a claim by the filing of an Application should subsequently challenge the jurisdiction of the Court to which of its own accord it has applied” (Monetary Gold Removed from Rome in 1943, Preliminary Question (Italy v. France, United Kingdom and United States of America), Judgment, I.C.J. Reports 1954, p. 28), Serbia and Montenegro went a great deal further, adopting positions which contradicted what it had previously accepted, expressly or tacitly, in the present case. This change of attitude by Serbia and Montenegro concerning the Court’s jurisdiction, by challenging the country’s membership of the United Nations and its obligations under the Genocide Convention, raises many issues which deserve our attention here. A. The Effects of the Respondent’s Conduct and Access to the Court 1. Chronology 8. The FRY had consistently maintained that it was the continuator State of the former SFRY and thus a Member of the United Nations, a position very well described by Serbia and Montenegro in the course of the oral proceedings of 2006: “The essence of the position taken by the former Government of the FRY was the following: we stayed on course. We are a founding [p387] Member of the United Nations. We remained a Member of the United Nations, and a party to international conventions continuing the personality of the former Yugoslavia. We remained the same State from which others have tried to secede (or did secede). Hence, our admission to the United Nations is beside the point, and no scrutiny under Article 4 of the Charter is needed, since we never ceased to be a Member. Due to continuity, we remained a Member of the United Nations, and we remained a party to the treaties to which the SFRY was a party.” (CR 2006/12, p. 53, para. 1.33.) 9. When the Federal Republic of Yugoslavia was proclaimed on 27 April 1992, a formal declaration was adopted in its name, whereby: “The Federal Republic of Yugoslavia, continuing the State, international legal and political personality of the Socialist Federal Republic of Yugoslavia, shall strictly abide by all the commitments that the Socialist Federal Republic of Yugoslavia assumed internationally.” The intention thus expressed by the FRY to abide by the international treaties to which the former Yugoslavia had been a party was confirmed in an official Note dated 27 April 1992 addressed to the Secretary-General by Yugoslavia’s Permanent Mission to the United Nations (United Nations, doc. A/46/915, Ann. I). In the present case, it continued to take numerous and repeated initiatives attesting to its full participation. For example: - on 1 April 1993 and 9 August 1993, in its written observations on the provisional measures requested by Bosnia and Herzegovina, the FRY made its own requests for the indication of provisional measures; - on 26 June 1995, the FRY raised preliminary objections regarding the admissibility of the Application and the Court’s jurisdiction, but none of those objections concerned the issue of access to the Court, the acceptance by the FRY of the Court’s jurisdiction or its status as a party to the Genocide Convention; - on 23 July 1997, the FRY filed its Counter-Memorial in which it submitted counter-claims; - on 26 April 1999, the FRY made a declaration recognizing the jurisdiction of the Court as compulsory by virtue of Article 36, paragraph 2, of the Court’s Statute; - on 29 April 1999, the FRY submitted Applications instituting proceedings against ten NATO Member States, in each of which it based the jurisdiction of the Court on Article IX of the Genocide Convention and specified in its request for the indication of [p388] provisional measures that it was indeed a Member of the United Nations; - on 20 April 2001, the FRY withdrew its counter-claims against Bosnia and Herzegovina. 10. However, alongside these procedural measures, other far more problematic initiatives were to be taken. Thus in June 1999, the Serb member of the joint Presidency of Bosnia and Herzegovina, taking advantage of the temporary powers conferred by the rotating chairmanship of the Presidency of Bosnia and Herzegovina, [FN2] informed the Court of two decisions: the appointment of a Co-Agent, by a letter of 9 June 1999, and Bosnia and Herzegovina’s intention of discontinuing the proceedings against the FRY, by a letter of 10 June 1999. Both letters were addressed directly to the Court instead of being sent via the original Agent who had represented Bosnia and Herzegovina until that point, who on 14 June 1999 informed the Court that no decision had been taken to discontinue the proceedings; on 15 June 1999, the FRY hastened to accept the discontinuance, while the same original Agent of Bosnia and Herzegovina intervened again, on 21 June 1999, to reiterate that no decision to discontinue the case had been made. A further development took place on 3 September 1999, when the FRY informed the Court that it had agreed with the Bosnian Serb President of Bosnia and Herzegovina to put an end to the proceedings. On 15 September 1999, the new President of Bosnia and Herzegovina exposed to the Court the joint manoeuvring of the FRY and the Bosnian Serb President of Bosnia and Herzegovina, indicating that there had never been any decision to discontinue proceedings or to appoint a Co-Agent in the case. ------------------------------------------------------------------------------------------------- [FN2] The Presidency of Bosnia and Herzegovina is a joint institution comprising three members (one Bosniak, one Croat and one Serb), with a rotating chair. ------------------------------------------------------------------------------------------------- 2. Analysis of the Respondent’s conduct (a) The implications of the FRY’s unilateral declaration regarding membership of the United Nations as the continuator State of the former SFRY 11. The International Law Commission’s Special Rapporteur on the unilateral acts of States has tabled for discussion a draft article worded as follows to define a unilateral act: “an unequivocal expression of will which is formulated by a State with the intention of producing legal effects in relation to one or more other States or international organizations, and which is known to that State or international organization”. [FN3] [p389] ------------------------------------------------------------------------------------------------- [FN3] Report of the International Law Commission on the Work of its Fifty-second Session, Official Records of the General Assembly, Supplement No. 10 (A/55/10), p. 88, footnote 165. ------------------------------------------------------------------------------------------------- It is generally accepted that diplomatic conduct engages the State, and the Court acknowledges that certain declarations define the attitude of a State in such a way that it is not at liberty to change that attitude subsequently. In the Nuclear Tests case, the Court adopted the following position: “It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal under-taking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding.” (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 267, para. 43.) 12. Thus the declaration made by the Government of the FRY on 27 April 1992, confirmed by the official Note to the Secretary-General of the United Nations of the same date, in which it undertook to comply with the international treaties to which the former Yugoslavia was a party, is indeed a unilateral expression of will, attributable to the FRY and intentionally designed to produce legal effects. Moreover, “to have legal effect, there was no need for these statements to be addressed to a particular State, nor was acceptance by any other State required” (ibid., p. 269, para. 50); Bosnia and Herzegovina’s position with regard to a unilateral act undertaken by the FRY normally has no bearing on its legal effects. (b) The issues of acquiescence and estoppel While estoppel and acquiescence both flow from the general principle of good faith, what sets estoppel apart from acquiescence, strictly speaking, is the element of detriment or prejudice caused by the change in attitude of one State towards another State. The Dictionnaire de droit international public thus defines acquiescence as: “Consent held to be given by a State in view of its (active or passive) conduct with respect to a given situation”. [FN4] According to the Court, acquiescence is “equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent” (Delimitation of the Maritime Boundary in the Gulf of Maine (Canada/United [p390] States of America), Judgment, I.C.J. Reports 1984, p. 305, para. 130). For a State to be bound by its passivity, certain elements are required, mere silence on its own not appearing sufficient to engage a State - it must be a “qualified silence”: “if a State, which is aware of the claims of an opposing party, refrains from reacting during a certain period of time, despite its interest and in spite of the opportunities allowing for a reaction, it may reasonably be assumed that it intends itself to be engaged.” ------------------------------------------------------------------------------------------------- [FN4] J. Salmon (ed.), Dictionnaire de droit international public, 2001, p. 21. [FN5] H. Das, “L’estoppel et l’acquiescement: assimilations pragmatiques et divergences conceptuelles”, Revue belge de droit international, 1997, Vol. 30, p. 619. ------------------------------------------------------------------------------------------------- In the instant case, the fact that the FRY submitted a request for provisional measures, then made counter-claims in its Counter-Memorial (declared admissible by the Court in its Order of 17 December 1997) [FN6] attested to active conduct manifesting its right to appear before the Court. The fact that preliminary objections were filed concerning the admissibility of the Application and the Court’s jurisdiction with respect to Bosnia and Herzegovina, but not one about the jurisdiction of the Court over the FRY or its right of access to the Court, was also highly significant; whereas one might legitimately have expected the Respondent to raise all the preliminary objections which might have moved the Court to acknowledge a lack of jurisdiction, as this was the “opportunity for protest to be lodged”, [FN7] the FRY did not take advantage of such an opportunity. Thus the fact that the issue of access to the Court was not raised during eight years of proceedings, when it was in the Respondent’s interest to advance such an argument, is an element demonstrating the Respondent’s acquiescence and evidence that at that time the FRY had no doubt about its status as a party to the Court’s Statute. That acquiescence was of an active rather than a passive variety, as the FRY effectively used its right of access to the Court, not just by participating in proceedings, but also by submitting its own counter-claims in the present case, as well as ten Applications instituting procedure in 1999 (Legality of the Use of Force). ------------------------------------------------------------------------------------------------- [FN6] Article 80 of the Rules of Court indicates that a counter-claim can only be heard if “it comes within the jurisdiction of the Court”. [FN7] H. Das, op. cit., 1997, Vol. 30, p. 622. ------------------------------------------------------------------------------------------------- According to the Dictionnaire de droit international public, estoppel is: “a peremptory objection, often viewed as a procedural objection, preventing a State party to proceedings from asserting a claim or submitting an argument which contradicts its earlier conduct or a position taken previously on which a third party legitimately relied”. [FN8] ------------------------------------------------------------------------------------------------- [FN8] J. Salmon (ed.), op. cit., p. 450. [p391] ------------------------------------------------------------------------------------------------- Estoppel (or the principle of a bar on contradicting oneself to the detriment of another) is expressly acknowledged by national case law concerning international arbitration. [FN9] Although international jurisprudence focused on the issue of estoppel is not very plentiful, the International Court of Justice has already had the opportunity to find at times with respect to this principle, and to set forth the conditions in which it can be invoked (North Sea Continental Shelf (Federal Republic of Germany/ Denmark; Federal Republic of Germany/Netherlands), Judgments, I.C.J. Reports 1969, p.26; Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, I.C.J. Reports 1984, p. 309; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 415; Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment, I.C.J. Reports 1960, p. 213). It had the opportunity to explain that: “estoppel may be inferred from the conduct, declarations and the like made by a State which not only clearly and consistently evinced acceptance by that State of a particular régime, but also had caused another State or States, in reliance on such conduct, detrimentally to change position or suffer some prejudice” (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 415, para. 51). ------------------------------------------------------------------------------------------------- [FN9] Thus, for example, the First Civil Chamber of France’s Cour de Cassation in a judgment dated 6 July 2005 found inadmissible “in virtue of the principle of estoppel” that a claimant of arbitration subsequently disputes the existence of the arbitration agreement on which he had previously based himself without any reserves in order to submit his claim: “Mr. X ... who himself initiated arbitration before the Iran-US Claims Tribunal and who participated in the arbitral proceeding, without any reserve, for more than nine years, is not permitted, pursuant to the principle of estoppel, to then bring a contradictory claim that the Tribunal ruled upon the matter without an arbitration agreement or based on a void agreement, because there was no binding arbitration agreement ...” (Ch. Civ. 1, 6 July 2005, Bulletin 2005 I, No. 302, p. 252, translation by White & Case LLP.) ------------------------------------------------------------------------------------------------- 17. Based on the three elements of estoppel usually acknowledged by the doctrine [FN10] (clear and unequivocal initial conduct or declarations; effective and legitimate reliance in good faith on such conduct or declarations by the other party dictating its own conduct; detriment resulting from that reliance or a change in the relative positions of the parties), there can be no doubt, in the context of the current case, that the conditions exist to invoke estoppel. Unlike the FRY’s claims according to which it could not have presented, in 1993 and 1996, the objections to jurisdiction which it now raises, nothing stopped it from raising them at [p392] that time, since it referred to the issue of Bosnia and Herzegovina’s locus standi and it knew that its status as a Member of the United Nations was the subject of heated debate, which should have prompted it to take the necessary measures to remedy the situation. ------------------------------------------------------------------------------------------------- [FN10] R. Kolb, La bonne foi en droit international public, 2000, pp. 360 et seq. ------------------------------------------------------------------------------------------------- 18. Nevertheless, note should also be taken of the ambiguity of the Applicant’s position on the FRY’s membership of the United Nations as the continuator State of the SFRY. Indeed, at the same time as it was disputing the FRY’s claim to be the continuator of the SFRY and to remain a Member of the United Nations, Bosnia and Herzegovina filed for proceedings against that same State before the International Court of Justice. True, in the context of the period, that contradiction can be explained or even laid aside, given that what it disputed was that the FRY was the sole continuator State and should not benefit from a more advantageous status than the other successor States; Bosnia and Herzegovina was of the opinion that all the States concerned should be treated equally as successor States and that each of them should apply for admission to the United Nations. In other words, a distinction should be made between the political action carried out before the authorities of the United Nations at the time and the legal action before the Court, especially as the status of the FRY relative to the United Nations was highly complex throughout the period and Bosnia and Herzegovina wished to safeguard its rights for the future vis-à-vis the FRY, which continued to refuse to ask for a clarification of its position. However it may be, it appears neither reasonable nor equitable for the Respondent to benefit now from an attitude that it retroactively characterizes as erroneous, and to claim that it had no access to the Court at the time when the Application was filed. The principle of good faith requires States and their agents to act in a fair way in compliance with the law in the fulfilment of their undertakings. B. The Effects of the Respondent’s Conduct and the Genocide Convention 1. Chronology 19. As we have just seen, throughout the proceedings until 2000, Yugoslavia continued to maintain that it was bound by the Genocide Convention, both in its implicit and explicit acceptance of the Court’s jurisdiction on the basis of Article IX of the Genocide Convention and in its refusal of all the other grounds for jurisdiction put forward by the Applicant: - on 1 April 1993, in its Written Observations submitted to the Court regarding the Request for the indication of provisional measures, the Government of the FRY also advised the Court to indicate provisional [p393] measures and stated that it “does not accept the competence of the Court in any request of the Applicant which is outside the Convention on the Prevention and Punishment of the Crime of Genocide”; - one of the counsel for the FRY declared at the public sitting of 2 April 1993: “The Federal Republic of Yugoslavia does not consent to any extension of the jurisdiction of the Court beyond what is strictly stipulated within the Convention itself” (CR 93/13, p. 16); - this position was confirmed on 23 August 1993, when, in its Written Observations, the FRY noted: “It is obvious that, by requiring provisional measures on 1 April 1993, the intention of the FR of Yugoslavia was not to accept the jurisdiction of the Court whatsoever, or to an extent beyond what is strictly stipulated in the Genocide Convention”; - the Agent of the FRY referred on 26 August 1993 to “our dispute over the implementation of the Convention on the Prevention and Punishment of the Crime of Genocide” (CR 93/34, p. 16); in the Dayton Agreement, which entered into force on 14 December 1995, the parties committed themselves to respect and uphold the rights and freedoms established in a number of international agreements, including the Genocide Convention. [FN11] ------------------------------------------------------------------------------------------------- [FN11] Article 1 of the first chapter of Annex 6 in the Paris-Dayton Agreement states: “The Parties shall secure to all persons within their jurisdiction the highest level of internationally recognized human rights and fundamental freedoms, including the rights and freedoms provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols and other international agreements listed in the Appendix to this Annex.” That Appendix, entitled “Human Rights Agreements”, lists the agreements, with in first place the “1948 Convention on the Prevention and Punishment of the Crime of Genocide”. ------------------------------------------------------------------------------------------------- 2. Analysis of the Respondent’s conduct 20. Since the FRY submitted that it only accepted the Court’s jurisdiction within the scope of the Genocide Convention, its conduct in acknowledging itself as a party to the Convention and accepting the Court’s jurisdiction on that one basis alone can be viewed as active and unequivocal. Such conduct can now be held against it, and it cannot deny it without undermining the principle of good faith. In fact, on 1 April 1993 and 23 August 1993 the FRY even requested the indication of provisional measures and asked the Court to instruct Bosnia and Herzegovina to respect its obligations regarding the Genocide Convention, and immediately to take all the necessary measures to prevent the commission of genocide on the Serbs. Since that date, Bosnia and Herzegovina has based itself upon Article IX of the Genocide Convention [p394] as the “only ground for jurisdiction”, since there was no further doubt about it. 21. All the elements for estoppel exist in the instant case, as, first, the FRY’s statements were clear, precise and repeated over time. Second, the effective reliance on good faith of the Applicant as regards the Respondent’s position with respect to the Genocide Convention prompted it to limit itself to that Convention as the basis for the Court’s jurisdiction. Third, Bosnia and Herzegovina would suffer material and moral prejudice as a result of the Respondent’s change of attitude. Consequently, the Respondent, having acquiesced to the fact that it was a party to the Genocide Convention and acknowledged the jurisdiction of the Court on this ground, is bound by its conduct and logically estoppel bars it from making any contrary claim, especially as another consideration applies linked to the notion of forum prorogatum. 22. The theory of forum prorogatum consists on the one hand “of an extension of the jurisdiction of an international court . . . and, on the other, forum prorogatum can be regarded as a substitute for seisin of an international court”. [FN12] The first meaning of the theory is of little relevance to the case at hand, [FN13] but the second, by which a State “accepts the jurisdiction of an established international court such as the International Court of Justice after the seisin . . . by conclusive acts implying tacit acceptance” [FN14] can be broadly applied in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia). The Court has had reason to accept the substance of the forum prorogatum theory on several occasions (Corfu Channel (United Kingdom v. Albania), Preliminary Objection, Judgment, 1948, I.C.J. Reports 1947-1948, p.28; Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 114; Mavrommatis Jerusalem Concessions, Judgment No. 5, 1925, P.C.I.J., Series A, No. 5, pp. 27-28). In the Haya de la Torre case, the Court held that submitting arguments on the merits of the case was equivalent to tacit acceptance of its jurisdiction: “All the questions submitted to it have been argued by them [the Parties] on the merits, and no objection has been made to a decision on the merits. This conduct of the Parties is sufficient to confer jurisdiction on the Court.” (Haya de la Torre (Colombia/Peru), Judgment, I.C.J. Reports 1951, p. 78.) [p395] ------------------------------------------------------------------------------------------------- [FN12] Ch. Rousseau, “Le règlement judiciaire”, Droit international public, Vol. V, Sirey, 1983, p. 398. [FN13] The issue of extending the Court’s jurisdiction was raised in the requests for the indication of provisional measures submitted by the FRY, certain of which went beyond the framework of the Genocide Convention. The Court, however, did not uphold that argument. [FN14] J. Salmon (ed.), op. cit., p. 518. ------------------------------------------------------------------------------------------------- In the Anglo-Iranian Oil Co. case, the Court said: “The principle of forum prorogatum, if it could be applied to the present case, would have to be based on some conduct or statement of the Government of Iran which involves an element of consent regarding the jurisdiction of the Court” (Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 114); as such elements were lacking in that particular case, the Court rightly found that it had no jurisdiction. This is not so in the present case. 23. The question is what can be regarded as “conclusive acts” in the case at hand. From 1993 to 2001, the FRY did not effectively at any point dispute being a party to the Genocide Convention and acknowledged that that agreement formed the Court’s ground for jurisdiction. And the Court endorsed that position on a number of occasions. - First in its Order of 13 September 1993: “Whereas in its Order of 8 April 1993 the Court considered that Article IX of the Genocide Convention, to which both the Applicant and the Respondent are parties, appeared to the Court ‘to afford a basis on which the jurisdiction of the Court might be founded to the extent that the subject-matter of the dispute relates to “the interpretation, application or fulfilment” of the Convention, including disputes “relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III” of the Convention’ ” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 338, para. 25). - Then in the 1996 Judgment on the Preliminary Objections: “The Court observes, furthermore, that it has not been contested that Yugoslavia was party to the Genocide Convention. Thus, Yugoslavia was bound by the provisions of the Convention on the date of the filing of the Application in the present case, namely, on 20 March 1993.” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 610, para. 17.) In its 2006 oral arguments, the Applicant stressed that “by failing to raise such an objection, Yugoslavia has in this regard accepted the de facto jurisdiction of the Court on this point and has established a form of forum prorogatum, which the most elementary dictates of good faith prevent it from again contesting today” (CR 2006/3, p. 19, para. 19). [p396] More than that, as we have seen above, the FRY publicly acknowledged this fact on a number of occasions during proceedings, contending that it only accepted the Court’s jurisdiction within the confines of the Genocide Convention. - Finally, the FRY filed counter-claims with the Court on the same basis of jurisdiction and requested the Court to declare that Bosnia and Herzegovina had committed acts of genocide on the Serb population (Counter-Memorial submitted on 23 July 1997). Although the Court did not adjudge that point, the FRY’s conduct indicated that it had no objection to the continuation of proceedings on the merits and that it would thus be justified to invoke the Court’s jurisdiction in the case based on the principle of forum prorogatum, despite the Respondent’s belated challenge, which did not emerge until April 2001, when the Court rejected the Application for Revision, thereby reiterating its jurisdiction once again. 24. To conclude, the basic principle of good faith which underpins the notions of acquiescence, estoppel and forum prorogatum can be applied directly to the present case and give rise to law and obligations.[FN15] In his dissenting opinion in the Arbitral Award Made by the King of Spain case, Judge Urrutia Holguin explained very clearly that: “The objection on the grounds of good faith which exists in almost all legal systems and which prevents a party from profiting by its own misrepresentation and which, in Anglo-Saxon law, is known as estoppel, would be applicable in the present case if it were proved that the action and behaviour of one of the States caused the other State to place reliance upon its acts of acquiescence and to believe in its renunciation of its right to dispute the validity of the award.” (Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment, I.C.J. Reports 1960, p. 222.) ------------------------------------------------------------------------------------------------- [FN15] R. Kolb, op. cit., p. 157. ------------------------------------------------------------------------------------------------- Similarly, Vice-President Alfaro, in a separate opinion in the Temple of Preah Vihear case, said: “Whatever term or terms be employed to designate this principle such as it has been applied in the international sphere, its substance is always the same: inconsistency between claims or allegations put forward by a State, and its previous conduct in connection therewith, is not admissible (allegans contraria non audiendus est). Its purpose is always the same: a State must not be permitted to benefit by its own inconsistency to the prejudice of another State (nemo potest mutare consilium suum in alterius injuriam). A fortiori, the State must not be allowed to benefit by its inconsistency when it is through its own wrong or illegal act that the other party has been deprived of its right [p397] or prevented from exercising it. (Nullus commodum capere de sua injuria propria.) Finally, the legal effect of the principle is always the same: the party which by its recognition, its representation, its declaration, its conduct or its silence has maintained an attitude manifestly contrary to the right it is claiming before an international tribunal is precluded from claiming that right (venire contra factum proprium non valet).” (Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 40.) 25. The Court’s jurisdiction must be seen in the light of the situation obtaining at the time that the Application was filed; as one author notes, “a fact is to be considered in reference to the law prevailing at the same time; to analyse according to a rule that was not in force at the time of the fact would be to attribute anachronistically retroactive effect to that rule...”. [FN16] The conduct of the Respondent, at the time when the Court’s jurisdiction needs to be examined, amounted to showing clear consent to be bound by the Statute of the Court and, more importantly, the Genocide Convention, in such a way as to provide all the elements to found the Court’s jurisdiction. The Applicant submitted that “the Court does not pass judgment in an ideal platonic world; its judgments are delivered at a given point in time, in specific circumstances, in the light of the information available, and at that point in time” (CR 2006/37, p. 43, para. 24). If the FRY was readmitted as a new Member of the United Nations on 1 November 2000 and changed its legal tactics, this should not have any retroactive effect on the preceding situation or on its international undertakings, inter alia the fact that it remained bound by the Genocide Convention, on which the Court’s jurisdiction was established at the time that the Application was made, pursuant to the rules of State succession. ------------------------------------------------------------------------------------------------- J. Combacau, “L’écoulement du temps”, Le droit international et le temps, 2001, p. 87. ------------------------------------------------------------------------------------------------- 26. The declaration of the Federal Republic of Yugoslavia and the official Note addressed to the Secretary-General by the Permanent Mission of Yugoslavia to the United Nations (A/46/915), both dated 27 April 1992, clearly demonstrate the intention of the FRY to present itself as the continuator of the SFRY. The first indicated: “The representatives of the people of the Republic of Serbia and the Republic of Montenegro, Expressing the will of the citizens of their respective Republics to stay in the common state of Yugoslavia, ............................. Wish to state in this Declaration their views on the basic, immediate and lasting objectives of the policy of their common state, and on its relations with the former Yugoslav Republics. [p398] In that regard, the representatives of the people of the Republic of Serbia and the Republic of Montenegro declare: 1. The Federal Republic of Yugoslavia, continuing the state, international legal and political personality of the Socialist Federal Republic of Yugoslavia, shall strictly abide by all the commitments that the SFR of Yugoslavia assumed internationally, ............................. Remaining bound by all the obligations to international organizations and institutions whose member it is . . .” The second stated: “The Assembly of the Socialist Federal Republic of Yugoslavia, at its session held on 27 April 1992, promulgated the Constitution of the Federal Republic of Yugoslavia. Under the Constitution, on the basis of the continuing personality of Yugoslavia and the legitimate decisions by Serbia and Montenegro to continue to live together in Yugoslavia, the Socialist Federal Republic of Yugoslavia is transformed into the Federal Republic of Yugoslavia, consisting of the Republic of Serbia and the Republic of Montenegro. Strictly respecting the continuity of the international personality of Yugoslavia, the Federal Republic of Yugoslavia shall continue to fulfil all the rights conferred to, and obligations assumed by, the Socialist Federal Republic of Yugoslavia in international relations, including its membership in all international organizations and participation in international treaties ratified or acceded to by Yugoslavia.” 27. Thus the FRY, by these two acts, expressed its intention to ensure the continuity of the SFRY rather than its succession. Its position was clearly for “a straightforward amputation of the Yugoslav State, which would continue to exist despite the secession of four of its republics. This represented the intention to apply the principle of the constitutional and territorial variability of a State, enabling a legal personality to survive in spite of substantial modifications.” [FN17] ------------------------------------------------------------------------------------------------- A. Vahlas, “A propos de trois questions récurrentes en matière de succession d’Etats: application au cas yougoslave”, in P. M. Eisemann, M. Koskenniemi (eds.), La succession d’Etats: la codification à l’épreuve des faits - State Succession: Codification Tested against the Facts, 2000, p. 853. ------------------------------------------------------------------------------------------------- Continuation effectively means that “the State remains legally identical, even if it has undergone certain [p399] transformations, for example, a reduction or enlargement of its territory, a change of government, an alteration to its name: in other words, the legal identity is asserted beyond the historical contingencies”. [FN18] ------------------------------------------------------------------------------------------------- [FN18] B. Stern, “La succession d’Etats”, Recueil des cours de l’Académie de droit international, 1996, Vol. 262, p. 40. ------------------------------------------------------------------------------------------------- 28. As has also been emphasized, there are a number of advantages to continuation relative to succession: “the continuator State, supposedly identical to the predecessor State from the perspective of its legal personality, does not need to join the international community. The continuator State naturally replaces the predecessor State and thereby avoids following all the procedures for admission to international organizations or recognition by other States.” [FN19] ------------------------------------------------------------------------------------------------- [FN19] A. Vahlas, op. cit., p. 854. ------------------------------------------------------------------------------------------------- Thus “no problems regarding the transmission of rights or obligations should arise in this case, since, by definition, the holder of those rights and obligations remains the same”. [FN20] The legal consequences of continuation are therefore that the rights and obligations of the initial State are maintained. In principle, it is not necessary for the international community to recognize the situation for a claim to continuity to become effective. In reality, however, recognition by other States generally seems to be required, above all from those States most directly concerned. ------------------------------------------------------------------------------------------------- [FN20] B. Stern, op. cit., p. 41. ------------------------------------------------------------------------------------------------- As for succession, it means that there is “instead of and in place of the initial State, which can thenceforth be called the predecessor State, the advent of a new State, which will be characterized as the successor State”. [FN21] The purpose of succession is thus to substitute one State for another with respect to responsibility for the international relations of a territory. It consequently involves a certain discontinuity in the organization, composition and functioning of the State. It requires recognition of the successor State by the international community. ------------------------------------------------------------------------------------------------- [FN21] 21 Ibid., p. 40. ------------------------------------------------------------------------------------------------- In the instant case, the FRY’s declaration and official Note, both dated 27 April 1992, could have been sufficient to make the FRY automatically the continuator of the SFRY, since no demand for recognition by the international community is in principle required. In fact, “a continuator State in principle benefits ipso facto from the international recognition from which it benefited - and continues to benefit - as the State which continues to exist”. [FN22] Practice, nonetheless, has shown how necessary expressions of such recognition are. The continuator State is effectively different from the predecessor State. While it maintains the legal and international personality and remains bound by its international undertakings, the spatial field of application of the assumed obligation [p400] have been changed as a result of the territorial modifications inherent in all succession processes. The utility of renewed international recognition is thus warranted by the adaptations to the situation of the predecessor State. ------------------------------------------------------------------------------------------------- [FN22] Ibid., p. 59. ------------------------------------------------------------------------------------------------- 31. Further, to determine the FRY’s status as a continuator, we must necessarily ponder the process of the dismemberment of the SFRY. Dissolution means that a State splits into two or more new States, none of which can claim to be identified with the pre-existing State. All of the resulting States must in principle be regarded as successor States. As for secession, it involves the continuation by one State of the personality of the predecessor State and the succession of other States from that predecessor State. Theoretically, it was thus for third-party States to determine whether the break-up of SFRY was a dissolution or a secession by way of international recognition. In this respect, the FRY declared itself to be the continuator of the SFRY, while the other States born out of that break-up (Croatia, Macedonia, Bosnia and Herzegovina and Slovenia) viewed themselves as successor States and generally refused to acknowledge the FRY’s status as continuator, although certain agreements were reached on this point, as we shall see below. Consequently, if other States were to recognize the FRY as the continuator of the SFRY it would mean that, in their view, the new States had seceded. If not, the SFRY would be considered as dissolved and the FRY could not be viewed as the continuator of that State, since the State concerned had ceased to exist. Nevertheless, the distinction between dissolution and secession seems to be less clear-cut than it might appear. Thus the Vienna Convention on Succession of States in respect of Treaties provides for secession whether or not the predecessor State continues to exist (Art. 34). Moreover, with respect to treaties, the same rules apply in the event of a dissolution as in the event of secession. According to Article 34 of the 1978 Convention, in both cases, any treaty in force at the date of the succession of States in respect of the entire territory of the predecessor State continues in force in respect of each successor State so formed. That being the case, it is of little consequence whether or not the FRY was recognized as the continuator of the SFRY: if the SFRY had been dissolved, the FRY could be recognized as one of its successors and gain the status of a party to the treaties ratified by the former Yugoslavia; if, on the contrary, the break-up of the SFRY took the form of several secessions by parts of its territory, the FRY would have been entitled to become its continuator and thus uphold the international undertakings assumed by the SFRY. In either case, the FRY would have succeeded the SFRY with respect to the treaties by which the latter was bound and inter alia the Genocide Convention, especially as the SFRY signed and ratified the Convention on the Succession of States in respect of Treaties on 6 February 1979 and 28 April 1980 respectively. 32. The two declarations of 27 April 1992 constituted two unilateral, autonomous acts which, by demonstrating the FRY’s wish to be the continuator of the SFRY, committed it to act as such. As was noted by the [p401] International Law Commission in its report on the work of its Fifty-seventh Session, unilateral acts such as those of 27 April 1992 entail certain legal effects. Thus, according to the International Law Commission, it appears “evident . . . that the existence of unilateral acts producing legal effects and creating specific commitments [was] now beyond dispute”. [FN23] The jurisprudence of the International Court of Justice provides a number of examples of acknowledgment of unilateral acts and of their effects in international law, inter alia for the State which made them (Legal Status of Eastern Greenland, Judgment, 1933, P.C.I.J., Series A/B, No. 53, p. 22; Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 253; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 457; Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p.6). ------------------------------------------------------------------------------------------------- [FN23] Report of the International Law Commission on the Work of its Fifty-seventh Session (2005), United Nations, doc. A/60/10, pp. 132-133. ------------------------------------------------------------------------------------------------- 33. As for the FRY’s intention to commit itself internationally by those unilateral acts of 27 April 1992, there does not seem to be any question about it. The declaration is addressed to the President of the Security Council, thus highlighting the fact that it is not a document which can only have an effect under internal law. Moreover, the declaration and the Note were appended to a letter dated 6 May 1992 to the Secretary-General of the United Nations. The letter indicated that the two documents could be regarded as “official[s] document[s] of the General Assembly”. [FN24] ------------------------------------------------------------------------------------------------- [FN24] United Nations, doc. A/46/915. ------------------------------------------------------------------------------------------------- 34. Although the other successor States of the former Yugoslavia challenged the FRY’s status at the United Nations and called for equal treatment with it, they had the opportunity, during the same period, to accept the continuity of the FRY in relation to the SFRY. This they did not by political declarations before one or another body, the legal value of which could be open to argument, but also in agreements in due form which clearly engage their signatories. Thus the annex to the Agreement on the Regulation of Relations and Promotion of Co-operation between Macedonia and the FRY signed on 8 April 1996 seems to be an explicit acknowledgment of continuity; in fact, the following was indicated: “In the light of the historical facts, both States mutually respect their state continuity (the Republic of Macedonia respects the State continuity of the Federal Republic of Yugoslavia and the Federal Republic of Yugoslavia respects the State continuity of the Republic of Macedonia)”. [FN25] ------------------------------------------------------------------------------------------------- [FN25] Agreement on the Regulation of Relations and Promotion of Co-operation between the Republic of Macedonia and the Federal Republic of Yugoslavia, Belgrade, 8 April 1996, Ann., United Nations, doc. S/1996/291. ------------------------------------------------------------------------------------------------- 35. Moreover, an “Agreement on Normalization of Relations between the Federal Republic of Yugoslavia and the Republic of Croatia” was signed on 23 August 1996, in which it was stated that Croatia acknowledged [p402] the continuity between the SFRY and the FRY. Article 5 also said: “Proceeding from the historical fact that Serbia and Montenegro existed as independent States before the creation of Yugoslavia, and bearing in mind the fact that Yugoslavia has continued the international legal personality of these States, the Republic of Croatia notes the existence of the State continuity of the Federal Republic of Yugoslavia.” [FN26] ------------------------------------------------------------------------------------------------- [FN26] Agreement on Normalization of Relations between the Federal Republic of Yugoslavia and the Republic of Croatia, Belgrade, 23 August 1996, Art. 5, United Nations, doc. A/51/318-S/1996/706 ------------------------------------------------------------------------------------------------- 36. Finally, Bosnia and Herzegovina made a similar statement, although in slightly different terms, in the Joint Declaration signed in Paris on 3 October 1996 by the Serbian and Bosnian Presidents. Point IV lays down to this end: “The Federal Republic of Yugoslavia will respect the integrity of Bosnia and Hercegovina in accordance with the Dayton Agreement which affirmed the continuity of various forms of statal organization of Bosnia and Hercegovina that the peoples of Bosnia and Hercegovina had during their history. Bosnia and Hercegovina accepts the State continuity of the Federal Republic of Yugoslavia. Both sides agree to resolve issues of succession on the basis of the rules of international law on succession of States and by agreement.” [FN27] (Emphasis added.) ------------------------------------------------------------------------------------------------- [FN27] Joint Declaration of the President of the Republic of Serbia and the President of the Presidency of Bosnia and Herzegovina, Paris, 3 October 1996, United Nations, doc. A/51/461-S/1996/830. ------------------------------------------------------------------------------------------------- All of the aforementioned elements show that interpretations regarding the status of the FRY varied depending on the body, dialogue and time involved; those variations and the resulting ambiguity cannot be interpreted as giving a straightforward, automatic retroactive effect to the decision to admit the FRY to the United Nations in November 2000. True, that decision clarified the situation for the present and the future, but it did not settle the issue regarding the preceding period, inter alia the crucial time when Bosnia and Herzegovina filed its Application with the Court and the FRY’s status remained on hold. In any event, it would not have been justified in the present case to challenge the Court’s decision on its jurisdiction of 11 July 1996 on the basis of the situation regarding the FRY’s status within the United Nations obtaining at the date the Application was filed, especially after analysis of the Respondent’s con-duct from 1993 to 2000, as we have seen above. [p403] II. STATE RESPONSIBILITY IN RESPECT OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE 37. The provisions of the Genocide Convention have given rise to problems of interpretation due to the ambiguous way in which they were written, the uncertainty of some of the concepts used or the scope that should be attributed to them. [FN28] Controversy has also surrounded Article IX, which provides that “[d]isputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute”, although such arguments can sometimes exaggerate the difficulty of its interpretation, given that certain references are sufficiently clear and demand no further comment, unless the interpretation is overstretched in order to arrive at unreasonable conclusions. In the present case, the Court has given an interpretation which I largely share; however, I feel that my position on this point warrants further explanation. ------------------------------------------------------------------------------------------------- [FN28] These problems have been noted in the doctrine concerning a number of articles, with reference to a lack of concrete practice accentuating the difficulties (see, for example, Joe Verhoeven, “Le crime de génocide: originalité et ambiguïté”, Revue belge de droit international, Vol. XXIV, 1991/1, pp. 5 et seq.). However, since the establishment of international criminal tribunals and the contribution of their jurisprudence, a number of areas have been clarified, thus reducing the difficulties of interpretation, although not eliminating them (see A. M. La Rosa and S. Villalpando, “Le crime de génocide revisité. Nouveau regard sur la définition de la Convention de 1948 à l’heure de son cinquantième anniversaire. Tentative d’appréhension théorique des éléments constitutifs du crime”, in K. Boustany and D. Dormoy (eds.), Génocide(s), 1999, pp. 53 et seq.; W. A. Schabas, “The Crime of Genocide, Recent Problems of Interpretation”, International Humanitarian Law, Vol. 1, Ardsley, Transnational, 2003, pp. 239 et seq.; G. Verdirame, “The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunals”, The International and Comparative Law Quarterly, Vol. 49, 2000, pp. 578 et seq.). ------------------------------------------------------------------------------------------------- 38. The reference to the responsibility of States in that Article has given rise to doubts: “there were many doubts as to the actual meaning of the reference to the responsibility of States”; [FN29] it has also been said that Article IX is “already . . . such a weak jurisdictional mechanism”, [FN30] with “ambiguous wording”; [FN31] it has even been claimed that the State responsibility towards which the Article is directed involves a criminal [p404] aspect of State responsibility, [FN32] although that controversial interpretation is not upheld by the greater part of scholarly opinion, as we will see subsequently. [FN33] ------------------------------------------------------------------------------------------------- [FN29] N. Robinson, The Genocide Convention. Its Origins and Interpretation, 1949, p. 42. [FN30] A. Cassese, “La communauté internationale et le génocide”, Mélanges Michel Virally: le droit international au service de la paix, de la justice et du développement, 1991, p. 185. [FN31] N. Jorgensen, “State Responsibility and the 1948 Genocide Convention”, in The Reality of International Law: Essays in Honour of Ian Brownlie, 1999, pp. 273-275. [FN32] F. Malekian, International Criminal Law. The Legal and Critical Analysis of International Crimes, Vol. 1, 1991, p. 305 (“the term responsibility of a state (in Art. IX) can also be interpreted as the international criminal responsibility of the state”). [FN33] M. N. Shaw, “Genocide and International Law”, in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne, 1989, pp. 813 et seq.; N. Jorgensen, “State Responsibility and the 1948 Genocide Convention”, op. cit., pp. 273 et seq. ------------------------------------------------------------------------------------------------- 39. The Respondent submits that the rules which usually govern the international responsibility of States cannot be applied with respect to Article IX, a position which it maintains even though in 1996 the Court rejected the objection raised by Serbia and Montenegro according to which the responsibility of a State for an act of genocide perpetrated by the State itself was supposedly excluded from the scope of the Convention34. The Parties therefore argued over that point once again in both the written pleadings and the oral arguments. The Applicant used the normal and ordinary meaning of the text of Article IX as a basis for establishing State responsibility for genocide, emphasizing that “[i]t is therefore essential to keep in mind every word of Article IX” (CR 2006/8, p. 18, para. 22) and that ascertaining whether the Genocide Convention provides for State responsibility “ought not to strain our capacity for treaty interpretation” (CR 2006/11, p. 50, para. 7), thus concluding that such responsibility should be recognized for all the acts proscribed by the Convention. As for Serbia and Montenegro, it has upheld a different approach, drawing inter alia on the interpretation of Article IX given by two of the Court’s judges in the joint declaration which they appended to the 1996 Judgment, in which they submitted that: “The Convention on Genocide is essentially and primarily directed towards the punishment of persons committing genocide or genocidal acts and the prevention of the commission of such crimes by individuals. ............................. Therefore . . . this Court is perhaps not the proper venue for the adjudication of the complaints which the Applicant has raised in the current proceedings.” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), joint declaration of Judges Shi and Vereshchetin, pp. 631-632.) [FN34] “The Court would observe that the reference in Article IX to the responsibility of a State for genocide or for any of the other acts enumerated in Article III does not exclude any form of State responsibility.” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 616, para. 32.). [p405] 40. If the opinion of these two judges was guarded, as illustrated by the use of the word “perhaps”, that of Judge Oda in his declaration: “I admit that the extremely vague and uncertain provision of Article IX of the Genocide Convention may leave room for the Court to allow itself to be seised of the present case, but consider that such a conclusion would be based on a misinterpretation of the real spirit of the Genocide Convention” (ibid., p. 630, para. 10), and, more particularly, Judge ad hoc Krec´a in his dissenting opinion: “I am convinced that the Genocide Convention provided for no international civil responsibility of States for the crime of genocide” (ibid., p. 772, para. 105) were far more categorical in their conclusions for rejecting State responsibility. According to the Respondent, “the Genocide Convention does not provide for the responsibility of States for acts of genocide as such” (CR 2006/16, p. 15, para. 20); Article IX mentions State responsibility, but “of course the wording has to be construed with the other provisions of the Convention. It is individuals who are criminally liable, in accordance with the provisions of domestic law as applied by domestic courts.” (Ibid., p. 19, para. 41.) Basing itself upon the travaux préparatoires, the Respondent added that “the content of Article IX is not consistent with the substantive provisions of the Convention. And given that Article IX is devoted to the machinery of settlement of disputes, it surely cannot be predominant.” (Ibid., p. 21, para. 49.) However, an examination of the drafting history leads us to conclude that the Convention’s authors intended to include State responsibility for genocide in the Convention (I), and since, in international law as it now stands, that cannot be a criminal responsibility, it can only take the form of the international responsibility of States (II). A. An Examination of the Travaux Préparatoires for the Genocide Convention 41. In principle and in accordance with Article 32 of the Vienna Convention on the Law of Treaties, reference to the travaux préparatoires may be made “in order to confirm the meaning resulting from application of Article 31, or to determine the meaning when the interpretation according to Article 31: (a) leaves the meaning ambiguous or [p406] obscure; or (b) leads to a result which is manifestly absurd or unreasonable”. [FN35] ------------------------------------------------------------------------------------------------- [FN35] Vienna Convention on the Law of Treaties of 23 May 1969, Art. 32. ------------------------------------------------------------------------------------------------- In the Lotus case, the Permanent Court of International Justice clearly stated that “there is no occasion to have regard to preparatory work if the text of a convention is sufficiently clear in itself” (“Lotus”, Judgment No. 9, 1927, P.C.I.J., Series A, No. 10, p. 16). 42. In the Respondent’s opinion, Article IX of the Genocide Convention is not sufficiently clear when it establishes State responsibility for acts of genocide. In the words of the Respondent’s counsel, who challenged the meaning given to it by the Court: “The interpretation adopted in this provisional mode by the Court is not buttressed by any reference to the substantial preparatory work of the Convention. In the circumstances, there is no reason of principle or consideration of common sense indicating that the issue of interpretation is no longer open.” (CR 2006/16, p. 14, para. 16-17.) He added that: “The travaux préparatoires show that it was during the last phase of elaboration of the Convention that, by a very slim majority of 19 votes to 17, with nine abstentions, the provision relating to the responsibility of States for genocide or genocidal acts was included . . . without the concurrent introduction of necessary modifications into other articles of the Convention.” (Ibid., p. 14, para. 18.) 43. Apart from the challenge to res judicata implied, such a conception gives an unusual interpretation to the travaux préparatoires. It is hardly very convincing to claim that the reference to the responsibility of States was introduced into the article on dispute settlement at the last minute, without making the necessary modifications to the other articles. An objective, detailed reading of the travaux préparatoires of the Convention clearly shows that the issue of the responsibility of States was debated throughout the discussions on Articles II, IV, VI and IX, before such responsibility was adopted in Article IX. [FN36] First, the issue of State responsibility was indirectly raised in the discussions concerning the draft Article II of the Ad Hoc Committee on Genocide’s report. The French delegation wanted to emphasize “the role of Governments in the perpetration of genocide”, [FN37] and tabled an amendment to the definition of genocide to which it added the words: “it is committed, encouraged or [p407] tolerated by the rulers of a State”. [FN38] The delegate of the United Kingdom, while expressing his intention to vote against the French amendment as “it made the mistake of excluding cases of genocide committed by private individuals”, stressed, nonetheless, that “the text drafted by the Ad Hoc Committee was also deficient in that it failed adequately to stress the responsibility of the State for the acts of genocide committed in its territory or international responsibility for acts of genocide committed by a State”. Mr. Fitzmaurice also emphasized that “[i]t was in fact difficult to imagine that genocide could be perpetrated on a large scale without the collusion of rulers”. [FN39] In that debate, the notion of the necessity of a responsibility of States to prevent and punish genocide was backed by a number of other delegations, such as Peru, [FN40] the United States of America - albeit to a more limited extent [FN41] - and the United Kingdom of course. ------------------------------------------------------------------------------------------------- [FN36] On those debates see inter alia N. Jorgensen, “State Responsibility and the 1948 Genocide Convention”, op. cit., pp. 275 et seq. [FN37] Official Records of the General Assembly, Third Session, Part I, Sixth Committee, 69th meeting, p. 56 (France, Chaumont). [FN38] Official Records of the General Assembly, Third Session, Part I, Sixth Committee, Annex to Summary Records of Meetings, doc. A/C.6/211, p. 14. [FN39] Official Records of the General Assembly, Third Session, Part I, Sixth Committee, 79th meeting, p. 160 (United Kingdom, Fitzmaurice). [FN40] Official Records of the General Assembly, Third Session, Part I, Sixth Committee, 69th meeting, p. 60 (Peru, Maurtua): “The individual should be protected by his own national legislation whereas international jurisdiction would apply to Governments which did not do their duty in that respect or encouraged the crime of genocide.” [FN41] Official Records of the General Assembly, Third Session, Part I, Sixth Committee, 79th meeting, p. 158 (United States of America, Maktos): “if, in spite of all the measures taken, the State did not succeed in arresting the guilty person, an international agency acting instead of the national courts would have no better chance of succeeding. On the other hand, if a State had not done all it could to prevent or punish the crime, international responsibility would come under consideration.” ------------------------------------------------------------------------------------------------- 44. Subsequently, during the sometimes rather confused debate concerning Article V, Belgium and the United Kingdom tabled amendments linking the perpetration of genocide to the State. Belgium’s amendment suggested the punishment of State agents, while that of the United Kingdom tried to introduce a “criminal responsibility” for States; the two different amendments, submitted to establish the jurisdiction of the ICJ for State responsibility, were initially rejected, but were put back on the agenda during the discussions on Article VII and, after a fairly prolonged debate, the responsibility of States was finally accepted in Article IX, [FN42] following several amendments to the draft put forward by the Ad Hoc Committee. The travaux préparatoires do not thus run counter to the ordinary and apparent meaning of the terms of Article IX; one might even conclude that they bear it out, as demonstrated by the assessment made by the United Kingdom’s delegate to the Sixth Committee, with the statement by Mr. Fitzmaurice that: [p408] “While everyone agreed that an act of genocide, if committed by a State or Government, was a breach of the Convention, there appeared to be considerable difficulty in expressing that idea in the text of the Convention itself.” [FN43] ------------------------------------------------------------------------------------------------- [FN42] Article X in the Ad Hoc Committee’s draft. [FN43] See Official Records of the General Assembly, Third Session, Part I, Sixth Committee, Summary Records of Meetings, 21 September-10 December 1948, 96th meeting, p. 352. ------------------------------------------------------------------------------------------------- 45. The foregoing explanations imply that the Genocide Convention indeed introduced a direct responsibility of States for acts of genocide, [FN44] and not just a duty to prevent and punish the perpetration of genocide by individuals as claimed by the Respondent. No other conclusion is possible, since a genocidal undertaking cannot readily be envisaged without the support or collusion of the State, and more importantly any other outcome would result in a situation which would be both paradoxical and absurd, contrary to the rules of interpretation in Article 32 of the Vienna Convention on the Law of Treaties. [FN45] As L. A. Sicilianos noted: “It would be absurd for the Convention to cover only the responsibility resulting from the failure of a State in its duty to prevent and punish and not the responsibility of a State for acts of genocide perpetrated by itself; all the more so given that Article IV of the Convention indicates that persons committing genocide . . . are to be punished, whether they are rulers, public officials or private individuals. A different approach would deprive the Convention of its reason for existence.” [FN46] ------------------------------------------------------------------------------------------------- [FN44] In view of this, it is even more difficult to understand the extremely restrictive interpretation adopted by Judge Oda in a secondary sentence in his declaration appended to the 11 July 1996 Judgment, in which the Convention is said to be. “a new type of treaty to deal with the rights of individuals as a whole, but not with the rights and obligations in the inter-State relations” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), declaration of Judge Oda, p. 629, para. 9). [FN45] The process of interpretation must not deprive the terms of a Convention of their substance unless the text, the context and the subject-matter clearly prompt such a conclusion (see in this respect: Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, pp. 4 and 24; Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, pp. 69 and 89). [FN46] L. A. Sicilianos, “La Responsabilité de l’Etat pour absence de prévention et de répression des crimes internationaux”, Droit international pénal, 2000, p. 116. ------------------------------------------------------------------------------------------------- The Court clearly and firmly adopted that approach in a paragraph of its Judgment of 11 July 1996, which warrants quotation in full: “The Court would observe that the reference in Article IX to ‘the responsibility of a State for genocide or for any of the other acts enumerated in Article III’, does not exclude any form of State responsibility.” (I.C.J. Reports 1996 (II), p. 616, para. 32). [p409] The Court confirms and explains the reasons underlying this approach in paragraph 166 of the present Judgment in terms with which I wholeheartedly agree. That of course shows that the Court is capable of identifying the consequences that may result for the responsibility of the State concerned. [FN47] ------------------------------------------------------------------------------------------------- [FN47] Regarding the Court’s role in this area, see Chapter 9 of W. A. Schabas, “State Responsibility and the Role of the International Court of Justice”, in Genocide in International Law, 2000, pp. 418-446. ------------------------------------------------------------------------------------------------- B. The Nature of State Responsibility 46. While there is no longer any doubt about the idea of State responsibility in internal and international legal systems, the notion of a State’s criminal responsibility is far from universally accepted, and for some the characterization “criminal” in conjunction with State responsibility even appears improper, since “even when an internationally wrongful act by a State is qualified as a crime, it does not lead to the same legal consequences as for the criminal acts of individuals”. [FN48] The long history of debate within the ILC during the consideration of the draft Articles on State Responsibility for Internationally Wrongful Acts was a good illustration of the theoretical and practical problems of these concepts; [FN49] we know that the ILC, having maintained the notion of international crimes by States in the first reading, abandoned it upon the second reading precisely so as to avoid any confusion between the crimes of individuals and the particularly serious internationally wrongful acts of States; [FN50] for that reason, it opted to describe the latter by way of a lengthy circumlocution targeting “serious breaches of obligations under peremptory norms of general international [p410] law” (Chap. III, Arts. 40 and 41, of the draft), [FN51] thus avoiding the term “crime” while nonetheless covering the notion it contains. ------------------------------------------------------------------------------------------------- [FN48] M. Kamto, “Responsabilité de l’Etat et responsabilité de l’individu pour crime de génocide - Quels mécanismes de mise en œuvre ?”, in Génocide(s), 1999, p. 489. [FN49] The two opposing viewpoints which emerged during those debates, regarding the distinction between “crimes” and “delicts”, were summarized in the positions taken by two members of the Commission, one in favour and the other opposed to the recognition of the notion of State crimes, in the volume containing the ILC’s contribution to the United Nations Decade of International Law, International Law on the Eve of the Twenty-First Century: The Views of the International Law Commission - Le droit international à l’aube du XXIe siècle: réflexions de codificateurs, United Nations, New York, 1997; according to A. Pellet (“Vive le Crime! Remarques sur les degrés de l’illicite en droit international”), “There are very good reasons, both theoretical and practical, in favour of maintaining the distinction between the two categories of internationally wrongful acts ...”, pp. 287-288; according to R. Rosenstock (“An International Criminal Responsibility of States?”, in International Law on the Eve of the Twenty-First Century: The Views of the International Law Commission - Le droit international à l’aube du XXIe siècle: réflexions de codificateurs, op. cit.), “There is no basis in State practice for distinction between ‘delicts’ and ‘crimes’. There does not, in the view of the writer, seem to be any logically or politically compelling reason to create such a distinction.” (P. 284.) [FN50] See E. Wyler, “From ‘State Crime’ to Responsibility for ‘Serious Breaches of Obligations under Peremptory Norms of General International Law’ ”, European Journal of International Law, Vol. 13 (2002), No. 3, pp. 1156 et seq. [FN51] See the comments on these Articles (International Law Commission Report, 2001, pp. 298 et seq.). ------------------------------------------------------------------------------------------------- 47. Serbia gave over considerable time in its oral arguments to demonstrate that the Genocide Convention implies no criminal responsibility whatsoever for States for genocide (CR 2006/16, pp. 19-30, paras. 38-82 (Brownlie)), when there is really no great difference between the Respondent and the Applicant on that precise point; that was probably attributable to the proportions taken by the discussion on that issue within the International Law Commission with respect to draft Article 19 on the international crimes of States. [FN52] The difference actually lies elsewhere, since, although the Respondent is right to assert that the Convention does not provide for the criminal responsibility of States, that does not mean that the Convention does not address State responsibility at all. While Bosnia and Herzegovina is not of the view that Serbia must be held criminally responsible, [FN53] it is because the responsibility of States is additional to the responsibility of individuals. That was the approach decided on by the ILC at its fifty-third session in 2001 for its draft Articles on State Responsibility, as well as that of the Statute of the International Criminal Court, of which Article 25 states that “[n]o provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law”. [FN54] That is also the general opinion of the doctrine, summarized thus: “Neither civil nor criminal, international responsibility borrows from both major ‘techniques’, but also possesses its own features and cannot be equated to the categories of internal law, given that the community of nations has little in common with national communities.” [FN55] [p411] ------------------------------------------------------------------------------------------------- [FN52] These discussions were echoed in the Court’s own deliberations when it rendered its 1996 Judgment, as shown by the opinions of Judges Shi, Vereshchetin and Oda and, more particularly, Judge ad hoc Krec´a, who wrote several pages on the notion of States’ criminal responsibility (I.C.J. Reports 1996 (II), pp. 767-772, paras. 103-105). [FN53] “The responsibility of States in international law is neither civil nor criminal - it is simply international”, CR 2006/8, p. 12, para. 6 (Pellet). [FN54] Article 10 of the Statute also states “[n]othing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute”. [FN55] P. Daillier and A. Pellet, “Droit international public”, LGDJ, 7th ed., 2002, p. 764. It is not, however, certain that this double negation - neither civil nor criminal -, also used by other scholars (see J. Barbosa, “State Crimes: a Decaffeinated Coffee ?”, in Liber Amicorum Georges Abi Saab, L. Boisson de Chazournes and V. Gowlland-Debas (eds.), 2001, p. 360), entirely settles the issue. It would probably be clearer to say that it equates to civil responsibility, as the main outcome sought is reparation; there may be a repressive aspect to the notion of reparations, but under international law in its current form, the punitive aspect with respect to a State remains a political decision dependent upon the Security Council acting under the relevant provisions of the United Nations Charter. ------------------------------------------------------------------------------------------------- 48. It was also asserted that the Court has no jurisdiction to impose reparation, since the Convention does not provide for such measures. [FN56] It is true that certain aspects may be overlooked in treaties and in the Genocide Convention in particular, inter alia the procedure for reparation. But the Court is in a position to put right such deficiencies by recourse to general international law; in that respect, the ILC has made a particularly significant contribution through its work, by clarifying the content of the rules applying to State responsibility. ------------------------------------------------------------------------------------------------- [FN56] N. Robinson, op cit., p. 43, “since the Convention does not specifically refer to reparation, the parties to it did not undertake to have accepted the Court’s compulsory jurisdiction in this question”. ------------------------------------------------------------------------------------------------- 49. In short, as the Court clearly indicated in its 1996 Judgment, which is res judicata, “Article IX does not exclude any form of State responsibility” and that interpretation is consistent with the travaux préparatoires of the Convention, which show that the principle of State responsibility for genocide was established after a lengthy debate following the joint Anglo-Belgian proposal. The Court clearly and explicitly confirms that interpretation, finding that “Contracting Parties may be responsible for genocide and the other acts enumerated in Article III of the Convention” (Judgment, para. 169). That is also consistent with the idea that the proscription of genocide is also a rule of customary international law which is binding upon States, even if they have not adopted the Convention (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23 (“the principles underlying the Convention are recognized by civilized nations as binding on States even without any conventional obligation”)); consequently, any violation of that proscription constitutes not just a wrongful act, but also a serious breach of the obligations under peremptory norms of general international law, [FN57] resulting for the State concerned in all of the applicable legal consequences of international responsibility, inter alia the obligation to cease the act, provide assurances of non-repetition and make reparation for the injury caused by the breach. [FN58] [p412] ------------------------------------------------------------------------------------------------- [FN57] Article 40 of the International Law Commission’s draft Articles on State Responsibility for Internationally Wrongful Acts. [FN58] See Articles 28 et seq. of the International Law Commission’s draft Articles. ------------------------------------------------------------------------------------------------- III. THE QUESTION OF EVIDENCE 50. When making its first Order of 8 April 1993 on provisional measures, the Court had already noted the existence of a “grave risk of acts of genocide being committed” in the case. Having received a fresh request for provisional measures, the Court found, in its second Order of 13 September 1993, that the Respondent had not only failed to respect the measures indicated for preventing and punishing such acts, but had further taken measures such as to aggravate the situation. For it stated that: “since the Order of 8 April 1993 was made, and despite that Order, and despite many resolutions of the Security Council of the United Nations, great suffering and loss of life has been sustained by the population of Bosnia-Herzegovina in circumstances which shock the conscience of mankind and flagrantly conflict with moral law and the spirit and aims of the United Nations” (I.C.J. Reports 1993, p. 348, para. 52). And above all, it added that it: “[wa]s not satisfied that all that might have been done ha[d] been done to prevent commission of the crime of genocide in the territory of Bosnia-Herzegovina” (ibid., pp. 348-349, para. 57). For all the caution of the terms employed by the Court and the fact that they are prima facie findings, it was already apparent that the evidence submitted by the Applicant was sufficiently convincing to lend credence to the accusation brought against the Respondent, to reaffirm the provisional measures already ordered and to allow reference to the commission of genocide. 51. Since 1996, and inter alia as a result of the trials held before the International Criminal Tribunal for the former Yugoslavia (ICTY), evidence has accumulated in the form of an impressive mass of information: official or non-official documents from various Serb entities involved, directly or indirectly, in the acts of genocide; oral or written statements from the central figures in the Bosnian tragedy, including the leading figures tried for or accused of these acts; resolutions, reports and other United Nations documents; reports and documents of the intelligence services of the various States; testimonies of victims and perpetrators of acts of atrocity before the ICTY or national tribunals; statements by witnesses, expert witnesses or experts before the Court; proceedings and judgments of the ICTY (trial and appeal chambers) and so on. Naturally this information cannot all be treated uniformly as evidence; as the Court rightly indicates, it must be examined with all the attention and circumspection necessary in order to establish the veracity or plausibility of the facts, their imputation and the share of liability falling on the Respondent. [p413] 52. The requirement, in this case, was to furnish evidence showing that a State is involved in genocide, either as perpetrator or co-perpetrator of this crime or as an accomplice in its commission, or as failing to do anything to prevent or punish the perpetrators. Now since the State is a legal entity, namely an abstraction unable to act on its own, the acts or omissions imputed to it are materially committed by individuals, acting individually or collectively, coming in one way or another under the authority of the State involved. It is therefore necessary to prove, first, the truth of these acts or omissions and, further, the link with the State. Other forums than the Court have already had occasion to deal with such situations, since an international criminal tribunal has been set up and some national courts have sometimes been seised to prosecute and judge individuals accused of genocide in the former Yugoslavia. These trials, together with those before the International Criminal Tribunal for Rwanda, which concern individuals, have afforded the opportunity to examine the various aspects of the crime of genocide and constitute a considerable contribution to understanding the many facets of this crime, clarifying its constituent elements and characterizing the acts that should be covered by this accusation. 53. With regard more particularly to the International Criminal Tribunal for the former Yugoslavia, its activity covers very extensively and directly the same facts as those submitted to the Court for consideration; an important difference, however, lies in the fact that they are apprehended by the ICTY from a particular angle, that of the individual criminal liability of each accused, whereas the Court apprehends them from another angle, that of the international responsibility of the State. Although the judgments of the ICTY are not binding on the International Court of Justice, they are based on factual findings which constitute relevant and even decisive evidence of the reality of the crime of genocide that the Court cannot overlook. In each trial, the Tribunal respected all the procedures and guarantees so as to establish the exact circumstances of the crimes committed; it examined under adversarial proceedings each of the numerous items of evidence or presumptions regarding the acts held against the accused; it examined all the prosecution or defence arguments before reaching a decision, on trial and sometimes on appeal, that was fully reflected upon and weighed with due regard for the profile of the accused and of each actual situation. For each case, a necessary and generally very long period of time was spent in order to “prove beyond any reasonable doubt” that the accused did or did not take part in acts of genocide. In any event, any judgment recognizing the existence of acts of genocide in Bosnia and Herzegovina constitutes a starting-point for considering whether and to what extent such acts are attributable to organs or persons under the authority of the Respondent or acting on its behalf and thereby engaging its responsibility. 54. As we know, while charges of genocide were brought against several [p414] individuals, the Trial Chamber accepted the charge to sentence only a few persons as perpetrator of or accomplice in the crime of genocide in the case of the Srebrenica massacre (Tadic, Krstic and Blagojevic cases); the Appeals Chamber has not endorsed all these judgments and, so far, it has upheld the crime of genocide in only one case to sentence the accused as accomplice and not as perpetrator or co-perpetrator of such a crime (Krstic case), [FN59] showing itself to be very demanding in terms of the standard of proof. However, even when the judgment does not, on the basis of the evidence adduced, find the accused guilty of genocide (Brdjanin, Jelisic, Stakic´ and Sikirica et al. cases), that does not necessarily mean that there has been no genocide. In my opinion, the evidence requirements are not precisely the same according to whether we are concerned with the personal involvement of an individual or with the involvement of a State. The most exacting standard is justified in criminal proceedings where precise individual conduct is being judged and there is a need to prove the avowed intent - beyond any reasonable doubt - of an accused to commit an act of genocide; we know that the strictness of this requirement has given rise to debate and has been challenged, as shown both by the dissenting opinions occasionally accompanying some judgments [FN60] and by the numerous commentaries prompted by those judgments in legal writings. The fact remains that, even if such a standard is not met and personal participation in genocide is not found, the acquittal of an individual of this crime does not rule out its reality; for an accused may carry out atrocious acts by obeying orders without being fully informed or fully aware that they are part of a policy aimed at genocide. ------------------------------------------------------------------------------------------------- [FN59] The Appeals Chamber has not yet ruled in the case of Blagojevic, found guilty of complicity in genocide by the Trial Chamber on 17 January 2005. [FN60] See, for example, the partially dissenting opinions of Judge Shahabuddeen in the Krstic and Jelisic cases and of Judges Wald and Pocar in the Jelisic case. ------------------------------------------------------------------------------------------------- There can thus be conflicts in the jurisprudence, for example between a trial chamber of the ICTY establishing guilt for genocide and the Appeals Chamber rejecting such guilt, without this being decisive as regards the existence of a policy of genocide. [FN61] In this case, the need is not so much to prove that the accused personally perpetrated or was an accomplice in an act of genocide; the need is rather to identify items of evidence such as will make it convincingly clear that crimes were committed in circumstances such that they pertain directly to a genocidal policy imputable to [p415] a State and, more precisely, that they were committed or instigated by individuals coming directly under the authority of the respondent State or acting on its behalf or on its account or under its control in carrying out such a criminal project. ------------------------------------------------------------------------------------------------- [FN61] This is moreover confirmed by the doctrine (cf. W.A. Schabas, op. cit., p. 227; L. van den Herik and E. van Sliedregt, “Ten Years Later, the Rwanda Tribunal Still Faces Legal Complexities: Some Comments on the Vagueness of the Indictment, Complicity in Genocide and the Nexus Requirement for War Crimes”, Leiden Journal of International Law, Vol. 17, 2004, pp. 537-557; C. Eboe-Osuji, “Complicity in Genocide versus Aiding and Abetting Genocide, Construing the Difference in the ICTR and ICTY Statutes”, Journal of International Criminal Justice, Vol. 3, 2005, pp. 56-81). ------------------------------------------------------------------------------------------------- 55. As we have observed, it is rare for a State to proclaim, officially or publicly, that it intends to carry out an illicit action, let alone proclaim its intent to commit a serious crime, particularly genocide, which is generally regarded as the “crime of crimes”. Even in the case of the two examples where such a crime has been recognized as having been committed, that of the genocide of the Jews by Nazi Germany and the genocide of the Tutsis in Rwanda, it was not clearly embarked upon officially and publicly, since the proclamation of a “final solution” policy in the former case and the “ethnic cleansing” project in the latter retain a degree of ambiguity; in reality it took the defeat and fall of the two régimes concerned, with access to the records including confidential or secret documents, to make it possible to gather an array of evidence attesting that genocide had been programmed and carried out against certain clearly identified individual groups. 56. In the present case, the change of political régime and the fall of President Miloševic, regarded as the main figure responsible for the war and the crimes committed in Bosnia and Herzegovina, has led only to limited and partial access to the sources of information on how the operations were conducted. One of the main exhibits relating to the direct involvement of the Serbian State in the operations against non-Serb populations is the record of the meetings of the Supreme Defence Council; that document was produced before the ICTY and brought to the notice of the Court, but much of its content had been censored, blackened to make it illegible. This camouflage operation legitimately arouses the suspicion that the Belgrade authorities wish to withhold certain information from the Court, probably decisions that reveal the direct involvement of Serbian army officers serving in the army of the Serb entity of Bosnia (Republika Srpska) throughout the tragedy. While many high-ranking Serbian officers were indeed present in Bosnia and Herzegovina, this means that an even more considerable number of soldiers and other elements of paramilitary forces were also present, which might lead to the conclusion that the Serbian State was directly involved in the criminal undertaking, and possibly in acts of genocide as well. Bosnia and Herzegovina asked the Court to require the respondent State to produce that document in unexpurgated form, first by means of a written request and then in the oral proceedings, without its request being satisfied. It is on this very important point that the Court’s position appears questionable, since not only does it reject the Applicant’s request, but it provides no explanation or justification for doing so; it merely states very abruptly that “the Applicant has extensive documentation and other evidence available to it, especially from the readily accessible ICTY records” and that “[i]t has made very ample use of it” (Judgment, para. 206). That, [p416] however, is not the issue. The point is that among the mass of ICTY documents and files that are available, it is necessary to find and produce those which may constitute items of evidence that bear out the accusations. Thanks to the remarkable investigative work carried out by the ICTY, the Applicant has managed to obtain such a document, but one that is incomplete through the will of the Respondent. The Applicant’s wish to see the document in full is entirely legitimate, as its contents could be an important or even decisive element in demonstrating the more or less direct involvement of the Respondent in the criminal enterprise of which it is accused. However, the Applicant’s request was not acted upon and the Court itself used none of its powers to obtain any documents at all. 57. As we know, the Court itself “may, even before the hearing begins, call upon the agents to produce any document” (Statute, Art. 49) and it may also “call upon the parties to produce such evidence or to give such explanations as the Court may consider to be necessary for the elucidation of any aspect of the matters in issue” (Rules of Court, Art. 62, para. 1). Since the Court was unable to meet the request of the applicant State or to invite proprio motu the Respondent to provide the document, it has not been possible to obtain clarifications regarding the document in question; the Court has had to make do with a question asked of the Respondent by a judge regarding the link between its refusal to produce the document in full and the present case before the Court, and a reply from the Respondent which does not provide the desired clarifications. The Respondent’s reply that the blackening of the documents produced before the ICTY was linked to the protection of national security interests and unconnected with the present case before the Court is not satisfactory. More than ten years after the events took place, it seems difficult to understand in what manner the disclosure of the minutes of the Supreme Defence Council could damage national security interests; it appears, quite plainly, that the masking was intended to render illegible the names of many officers of the Serbian military forces engaged directly in the territory of Bosnia and Herzegovina where crimes and possibly acts of genocide were taking place. 58. The hesitations or misgivings of the Court about responding to a request or deciding proprio motu to order the production of a document are indeed readily understandable; such action may involve a number of drawbacks that can be summarized thus: - giving the impression that the Court is going to assist - or even stand in for - the party making the request in its task of assuming the burden of proof, whereas that is not the role of the Court and it must maintain a perfectly equal balance between the parties; [p417] - taking a measure of which the symbolic force vis-à-vis the sovereignty of States is indisputable, which might make them more distrustful of the powers and role of the Court; - meeting with a refusal invoking the interest of national defence and the confidentiality surrounding it, and so finding itself in an embarrassing situation for the credit of the Court, which lacks the means of obliging a State to comply with its decisions. [FN62] In a less dramatic case than the instant one, the Court requested the United Kingdom to communicate certain documents relating to passage orders of warships in the Corfu Channel, but those documents were not produced, the plea being naval secrecy, and the witnesses declined to answer questions on them (Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 32). ------------------------------------------------------------------------------------------------- [FN62] On the problem of secrecy, see G. Niyungeko, “La preuve devant les juridictions internationales”, thesis, Free University of Brussels, 1988, pp. 188-189 and 287-292. ------------------------------------------------------------------------------------------------- 59. However, the merit and the relevance of these arguments do not suffice to make them convincing in the present case. We can here leave aside the second and third arguments, which pertain to the jurisprudential policy of the Court and the balance that should be achieved between the requirements of justice and the desirability of dealing tactfully with the sovereignty and susceptibility of States; the problem is not peculiar to the present case and, although it is of particular interest, developing the discussion further does not appear to be necessary. On the other hand, the first argument relating to the role of the Court in the matter of proof [FN63] merits some brief consideration, particularly since the Court is for the first time seised of a grave accusation of genocide against a State and, in the face of such an accusation, the problem of evidence is singularly important and acute; it is therefore logical and to be expected that the Court should be called upon or that it should itself employ every means offered it by its Statute to arrive at clear findings on the authenticity or otherwise of alleged facts. ------------------------------------------------------------------------------------------------- [FN63] On the more general problem of proof before the Court, see G. Guillaume, “Preuve et mesures d’instruction devant les juridictions internationales”, in La Cour internationale de Justice à l’aube du XXIe siècle: le regard d’un juge, 2003, pp. 85-110; M. Lachs, “La preuve et la Cour internationale de Justice”, in Ch. Perelman and P. Foriers (eds.), La preuve et le droit, 1981, pp. 109-123; C. F. Amerasinghe, “Principes en matière de preuve dans le procès international”, Annuaire de l’Institut de droit international, Vol. 70, 1, 2002-2003, pp. 139-398; H. W. A. Thirlway, “Evidence before International Courts and Tribunals”, in R. Bernardt et al. (eds.), Encyclopedia of Public International Law, 1995, 2, pp. 330 et seq.; J. C. Witenberg, “La théorie des preuves devant les juridictions internationales”, Recueil des cours de l’Académie de droit international, 1936, Vol. 56, pp. 5-102. ------------------------------------------------------------------------------------------------- It is well established in all legal systems, both national and international, that the onus of proof is incumbent on the party relying on it and, in the present case, it is for Bosnia and Herzegovina to prove that Serbia committed genocide or, failing that, that it was an accomplice in [p418] genocide. One of the main allegations is that members of Serbian military and paramilitary forces were the perpetrators of or, at the very least, accomplices in acts of genocide that took place on Bosnian territory and, in support of that allegation, Bosnia and Herzegovina provided a document produced before the ICTY such as to back and lend credibility to the allegation; but the document is incomplete through the will of the respondent State, which obscured a large part of it, and full knowledge of it is impossible without action by the Court calling for its production in full. Furthermore, there are sufficiently substantiated and serious presumptions justifying such action, since the document is likely to assist in the “elucidation of any aspect of the matters in issue” (Art. 62 of the aforesaid Rules), namely the extent and nature of Serbia’s involvement in the tragic events of Bosnia and Herzegovina; in addition, although that incomplete document is now part of the evidence on file, the Court examined it too briefly and in unfavourable conditions regarding its interpretation to draw any conclusions one way or the other with regard to the hidden parts. 61. One might think that this document was not treated appropriately by the Court, which did not make use of its powers in order to determine the truth of the matter. We are in a very special situation where the party on which the onus of proof is incumbent has honoured its obligation up to the point where it comes up against the intent of its opponent, which is in possession of the exhibit requested and hence the key to a solution; it follows that we are faced with a situation of inequality to the detriment of the applicant State, and action by the Court would merely have restored the equality of the parties by applying reasonably and equitably the principle of onus of proof. Such a solution would be in keeping with the conclusions drawn from the debates of the Institute of International Law [FN64] and would not call into question, in the opinion of a former President of the Court, the Court’s impartiality or independence. [FN65] ------------------------------------------------------------------------------------------------- [FN64] According to the Rapporteur, C. F. Amerasinghe, “[i]n the application of this principle the tribunal may in the appropriate circumstances divide the burden of proof in relation to a particular situation” and he proposes, in the draft Articles, provisions that the parties must co-operate with the Tribunal for the production of evidence, particularly that which is in their possession or under their control (cf. “Principes en matière de preuve dans le procès international”, op. cit., p. 197 and pp. 392 et seq.). [FN65] Cf. the observations of President G. Guillaume on the report of C. F. Amerasinghe to the Institute of International Law, “Principes en matière de preuve dans le procès international”, op. cit., p. 314. ------------------------------------------------------------------------------------------------- Furthermore, although there is not in the Statute and Rules of Court any rule regarding the obligation to co-operate where evidence is concerned, the opposing party must nevertheless act in good faith and not oppose the production of an exhibit in its possession which is needed to establish [p419] the facts; [FN66] legal opinion is generally in agreement in calling that a general principle of law [FN67] and, as recalled by the Rapporteur of the International Law Commission, Professor George Scelle, during its work on model rules for arbitration proceedings, “there is . . . a definite principle that the contesting States are under an obligation to co-operate in good faith in the production of evidence”. [FN68] One cannot thus help noting or deploring the pusillanimity of the Court and its refusal to provide, in all legality and equity, a means among others of ascertaining the truthfulness of an allegation in a case where the search for truth is particularly awaited and necessary. An over-rigid position in this respect can only lead to unreasonable or unjust results, [FN69] because the “statement of the facts” that the Court must take into consideration (Rules, Art. 95, para. 1) has not been so considered, on account of the absence of an item of evidence the production of which it would have been able to require. One might take the liberty here to recall the relevant observation of Judge Bustamante in the Barcelona Traction case: “I naturally accept that in each case the onus of proof is placed on one of the parties, but it is also true that the overriding interests of justice give the Court the faculty of taking such steps as are possible to induce the parties to clarify what is not sufficiently clear.” (Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 80.) ------------------------------------------------------------------------------------------------- [FN66] It was undoubtedly this principle that prompted the conduct of Switzerland in the Interhandel case, when it stated: “However, should the Court so desire, the Swiss Government would be willing to depart from any strict rule as to the sharing of the burden of proof between the applicant Party and the respondent Party.” (Memorial of Switzerland of 3 March 1958, Pleadings, Interhandel, p. 128, para. 82.) [FN67] Cf. G. Niyungeko, op. cit., pp. 172 et seq.; J. C. Witenberg, op. cit., pp. 47-49; F. Amerasinghe, op. cit., pp. 305-306, together with the observations of Sir Ian Sinclair, p. 327. [FN68] Cf. Yearbook of the International Law Commission, Vol. II, 1950, p. 134. [FN69] Cf. C. F. Amerasinghe, op. cit., p. 219. ------------------------------------------------------------------------------------------------- One might thus conclude that the Court has missed a good opportunity to put into effect legitimately the powers attributed to it by the Statute with regard to evidence; while that is particularly regrettable in the dramatic circumstances of the present case, it could also be so on a more general level in the future, in any case in which crimes are alleged on the basis of identified items of evidence held by one of the parties which refuses to produce them. By refraining from action, at the request of the other party or on its own initiative - when such action is demanded by the search for truth - the Court is in danger of creating a disturbing and concerning precedent. 62. If, in the future, the Court should once again be called upon to rule on the existence of a genocide, one might wonder how it could really [p420] perform such a task. In the present case, had there not been the huge investigative work carried out by the ICTY Office of Prosecution and the painstaking cross-checking performed by the ICTY trial chambers to establish the facts and the reality of acts of genocide, the Court would not have been in a position to draw on appropriate knowledge of the facts in order to rule on the alleged crimes and responsibilities engaged. Whatever it may say, and contrary to what it suggests in paragraph 181, the Court does not possess the legal and material facilities to conduct the necessary investigations in order to establish the guilt of the persons said to be the perpetrators of acts of genocide, which is the first step in subsequently determining whether those acts are attributable to persons or organs under the authority, in one way or another, of the State accused of breaching the Convention on the Prevention and Punishment of the Crime of Genocide. In the present case, the role played by the ICTY, the contribution of various United Nations bodies and other regional and national organizations, as well as the change of régime in Belgrade and the fall of the leaders of the FRY implicated in the violence in Bosnia, facilitated the establishment of the facts and access to evidence. But, in a different context, in which the leaders of the accused State were still in power and there was no international criminal tribunal with a mandate to prosecute the perpetrators of genocidal acts, the Court would find it practically impossible to gather sufficient evidence to enable it to decide on the reality of the acts of genocide and come to conclusions concerning the possible involvement of a State; all the more so since the Court has shown a highly restrictive approach to the application and interpretation of its Rules by refusing to play a more active role in establishing the facts and seeking out the truth. 63. While refusing to request the production of the document, the Court suggests that it is at liberty to draw the relevant conclusions from its non-disclosure (para. 206); however, none were drawn in the present case. In fact, the major finding against the Respondent in the Judgment - which consisted of saying in this case that it did not fulfil its obligation to prevent and punish the crime of genocide - appears to have no link to the document of which the Court did not see fit to request the disclosure. Without knowing the exact contents of the hidden text, it is objectively difficult and very hazardous to state whether those contents might have had a decisive influence one way or another in deciding on the principal allegations made against the Respondent: - the commission of genocide through its organs or by persons whose acts engaged its responsibility; - conspiracy to commit genocide or incitement to genocide; - complicity in genocide. In view of that uncertainty and of the explanations below, one cannot help but entertain serious doubts about the Court’s approach; by finding [p421] that no breaches took place of the three above-mentioned obligations, without having made appropriate efforts to encourage the production of items of evidence, the Court can only give rise to questions and objections as regards both the application and interpretation of its Rules and the findings at which it has arrived. IV. THE PROBLEM OF INTENT IN THE CRIME OF GENOCIDE 64. The definition of the crime of genocide given by the Convention in its Article II rests upon the combination of two elements, the material element (actus reus) and the intentional element (mens rea). In addition to genocide, the Convention punishes the acts of conspiracy, incitement and attempt to commit genocide, and complicity in genocide. It is also incumbent on all States bound by the Convention to prevent and punish the commission of genocide. Acts of genocide are always committed by individuals, under the authority of an entity which is the real orchestrator of these acts; [FN70] this is generally a State acting through its organs or through third organs operating on its account, on its behalf or even on the basis of a de facto relationship with this State, without being legally vested in any power. Hence the link between the legal entity which is the State and the offence is mediate, through the agency of individuals dependent on it in some manner and, for this reason, capable of engaging the responsibility of the State concerned. This reality considerably affects the evidence of genocidal intent, namely which are the wrongdoers whose intent is required: is it the actual perpetrator of the act, the planner of the crime, or both? ------------------------------------------------------------------------------------------------- [FN70] According to the ICTR, “although a specific plan to destroy does not constitute an element of genocide, it would appear that it is not easy to carry out a genocide without such a plan, or organisation” (Kayishema case, 21 May 1999, para. 94). The ICTY noted “that it will be very difficult in practice to provide proof of the genocidal intent of an individual if the crimes committed are not widespread and if the crime charged is not backed by an organisation or a system” (Jelisic case, Trial Chamber I, Judgment of 14 December 1999, para. 101). ------------------------------------------------------------------------------------------------- 65. The crimes punished under the Convention being all intentional crimes, they may be relied on to establish, on the one hand, the individual responsibility of their perpetrators and, on the other, State responsibility, as the Convention does not confine the acts listed in Article III to individual responsibility, as we have seen in the preceding developments. What is special about the crime of genocide is that it requires the combination of a general intent and a specific intent, the evidence of the intentional element being subjected to the general rules of evidence before the Court, which must seek out or deduce that intent from the circumstances of the case, its task having been greatly facilitated by the work already completed by the international criminal tribunals, which [p422] have contributed both items of evidence and insight with respect to intent. A. The Intentional Element 66. There is frequent discussion of the importance accorded to the intentional element, some regretting the subjectivism introduced into the Convention with the fear of seeing “the perpetrators of a crime escape punishment on the pretext of absence of wrongful intent”, [FN71] and that this “offers States a convenient way out”. [FN72] “There is a widespread opinion preferring to consider that there is genocide from the moment that there is mass extermination, without any need to take account of the end purpose pursued”, [FN73] but this position is liable to have an adverse effect on the conventional definition of genocide, emphasizing a special intent to destroy a group as such. If the mass exterminations are not aimed at individuals on the very account of their membership of a particular group, one cannot speak of genocide within the terms of the Convention; on the other hand, as one author has noted, “there will be . . . genocide from the moment when, in the course of a policy whose harmful consequences are plainly apparent, whatever the actual purpose, the intent to destroy a group as such emerges. To pursue, if not to shape, such a policy must in such a case be considered to constitute genocide, even if its destructive effects were not initially intended.” [FN74] ------------------------------------------------------------------------------------------------- [FN71] J. Verhoeven, op. cit.,p.17. [FN72] A. Cassese, op. cit., p. 184. [FN73] J. Verhoeven, op. cit., p. 23. [FN74] Ibid., pp. 19-20. ------------------------------------------------------------------------------------------------- 67. Some legal writers maintain that the crime of genocide covers acts which, without being originally intended to cause the physical disappearance of a group, lead to disappearance or the risk of disappearance on account of their being carried out. This sense “would make it possible to qualify as a crime of genocide, in addition to the deliberate annihilation of a group, the practices of forced population displacements and other acts of ‘ethnic cleansing’” [FN75], as we shall see later. In all cases, what characterizes the crime of genocide as defined by the Convention is the existence of a wrongful intent and, more specifically, a general wrongful intent and a special intent. ------------------------------------------------------------------------------------------------- [FN75] L. Boisson de Chazournes, “Les ordonnances en indication de mesures conservatoires dans l’affaire relative à l’Application de la convention pour la prévention et la répression du crime de génocide”, AFDI, 1993, Vol. XXXIX, p. 530. ------------------------------------------------------------------------------------------------- 68. General intent is effective knowledge of the material elements of the offence and of the perpetrator’s intent to act. The definition of genocide requires a general intent which is that to commit one of the five acts listed in Article II, namely: [p423] (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. By their very nature, these acts constitute conscious and deliberate acts, and cannot be the product of accident or oversight. The emphasis placed on intention in subparagraph (c) (deliberately inflicting) has no real legal consequence, since the intention must be established in each of the acts enumerated. As has been observed, “the limitative character of the enumeration contained in Article II is in principle readily understandable in view of the traditional rules expressed in criminal law by the adages nullum crimen sine lege and nulla poena sine lege. Besides, this should not be carried too far since the terms used are relatively broad and must remain so, despite the principle of restrictive interpretation of the punitive provisions.” [FN76] ------------------------------------------------------------------------------------------------- [FN76] J. Verhoeven, op. cit., p. 15. ------------------------------------------------------------------------------------------------- 69. In the crime of genocide, it does not suffice that the perpetrator has wished to commit one of the acts listed in Article II; the perpetrator must have further acted “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. This specific intent therefore requires the acts to be likely to cause specific damage, and the perpetrator to be aware of that. Actual destruction of the group is not a precondition for characterizing the crime of genocide; the mere intent to seek that specific damage suffices to conclude that the offence exists. [FN77] ------------------------------------------------------------------------------------------------- [FN77] N. Robinson, The Genocide Convention: A Commentary, 1960, p. 58 (“Actual destruction need not occur; intent is sufficient”); M. N. Shaw, “Genocide in International Law”, in International Law in a Time of Perplexity: Essays in Honour of Shabtai Rosenne, 1989, pp. 797-805 (“Actual physical destruction is not required; what is essential is the need to demonstrate the subjective element”). ------------------------------------------------------------------------------------------------- The specific intent must be distinguished from the motive. Some legal writers consider that special intent is the inclusion of the motive in wrongful intent, and that “the theory of genocide derogates from general law in that it includes the motive in the legal constitution of the offence”. [FN78] However, these analyses are not always clear and introduce a doubt regarding two different notions which sometimes seem to be used one for the other, particularly when some treat the motive (“mobile”) as equivalent [p424] to special intent and term as motives (“motifs”) the other reasons irrelevant to the offence. For example, what certain authors call “mobiles” and exclude from the definition of the offence, [FN79] others call “motifs” and also exclude from the definition of the offence. [FN80] What is important in the application of the Genocide Convention is that its drafters decided to include in the definition of the crime of genocide the specific intent to destroy a particular group (that some call “motive”), and to exclude the other reasons which may underlie that destructive will. The intent in question consists in the seeking of a wrongful result, while the motive is the reason prompting the offender to carry out the offence (e.g., revenge, enrichment, etc.); the motive may vary from one person to another in a same type of act, and the offence is irrelevant to the motives, whatever they may be. [FN81] The specific intent in the crime of genocide may be complex and comprise several aspects, but what must always be involved is the “intent to destroy, in whole or in part, a . . . group, as such”, which group may be “national, ethnical, racial or religious” (Genocide Convention, Art. II). ------------------------------------------------------------------------------------------------- [FN78] H. Donnedieu De Vabres, “De la piraterie au génocide: les nouvelles modalités de la répression criminelle”, Mélanges G. Ripert, 1950, Vol. 1, p. 245, cited by J. Verhoeven, op. cit.,p.17. [FN79] A. M. La Rosa and S. Villalpando, “Le crime de génocide revisité. Nouveau regard sur la définition de la convention de 1948 à l’heure de son cinquantième anniversaire. Tentative d’appréhension des éléments constitutifs du crime”, op. cit. (“the offence is irrelevant to the motives, whatever they may be”). [FN80] J. Verhoeven, op. cit., p. 19 (“les motifs pour lesquels le génocide est perpétré sont parfaitement indifférents” [“the motives for perpetration of the genocide are perfectly irrelevant”]). [FN81] A. M. La Rosa and S. Villalpando, op. cit., p. 83. ------------------------------------------------------------------------------------------------- 1. To destroy, in whole or in part, a . . . group, as such 71. Literally, to destroy (détruire) is “altérer profondément et violemment (quelque chose d’organisée) de manière à faire perdre l’aspect, la forme, les caractères essentiels” (“to alter profoundly and violently (something organized) in such a manner as to cause it to lose its aspect, form and essential characteristics”). [FN82] Killing is one of the manners of destroying but not the only one. The ICTY Appeals Chamber stated, in the Krstic case, that the intent to destroy the group as a separate and distinct entity can also be manifest in the forcible transfer of a population, which would thus be an “additional means by which to ensure the physical destruction” of the targeted community. [FN83] The prohibited act must be committed because of the victim’s membership of a particular group and for the purpose of achieving the overall aim of destroying the group. But the perpetrator of the genocide does not have to seek to destroy the entire group; it suffices that the perpetrator’s intent is to destroy part of it. According to some legal writers, the addition of “as such”, “solely seeks to highlight the [p425] essence of a particular crime represented by the intent to destroy a group of human beings; it carries no other restriction, however questionable its use may seem”. [FN84] According to the commentary on the draft Code of Crimes against the Peace and Security of Mankind, which uses the definition of genocide in the 1948 Convention, to destroy the group “as such” means destroying “a separate and distinct entity, and not merely some individuals because of their membership in a particular group”. [FN85] ------------------------------------------------------------------------------------------------- [FN82] Le Robert, dictionnaire de la langue française, 2nd ed., 1992. [FN83] Judgment of 19 April 2004, para. 31. [FN84] J. Verhoeven, op. cit.,p.19. [FN85] Report of the International Law Commission on the Work of its Forty-eighth Session, United Nations, doc. A/51/10, p. 45. ------------------------------------------------------------------------------------------------- 72. Let us note that the Convention does not stipulate any quantitative threshold for the crime of genocide. Once intent has been established and perpetration of the crime has begun, there is nothing to prevent genocide from having been committed even if the number of victims is small. It suffices to have committed any of the acts enumerated in the intent to achieve the destruction, in whole or in part, of a protected group; in principle, one could even go so far as to say that “a single murder, a single assault causing bodily harm to a member of the group would suffice, provided that they are accompanied by the specific intent of the perpetrator”. [FN86] That is a theoretical assumption, however, as there is inevitably or necessarily a quantitative aspect to any genocidal policy, and the crime must at the very least target a sufficiently large number of individuals or a substantial part of the protected group, as noted by the Court (Judgment, para. 198). In the present case, there is no lack of evidence of a great many murders and atrocities committed systematically in various parts of Bosnian territory. The written and oral pleadings of the applicant State abound in examples that the Respondent - being unable to dispute the facts in most instances - endeavours to minimize or give a different qualification. According to numerous, cross-checked testimonies, tens of thousands of non-Serbs, most of them Muslims, were killed between 1992 and 1995, and this constant practice constituted, in certain cases, forms of destruction of the “non-Serb” community, if one accepts this negative manner of defining the group. Without claiming to be exhaustive, the Court gives a damning overview of the extent and seriousness of the killings perpetrated on civilian populations in paragraphs 245 to 276; if the number of victims was often in the tens or hundreds, it sometimes reached the thousands, as indicated by the Court in several paragraphs (247, 252, 257-259, 262 and 271). ------------------------------------------------------------------------------------------------- [FN86] A. M. La Rosa and S. Villalpando, op. cit., p. 87. ------------------------------------------------------------------------------------------------- 2. A national, ethnical, racial or religious group 73. The Convention seeks to protect groups of the most extensive kind [p426] possible, provided they present “the essential element of stability”. [FN87] The stability and the permanence of the group are among the reasons which prompted the drafters of the Convention not to include economic, political, cultural or social groups among the groups protected. The Convention does not supply a precise definition of the terms “national, ethnical, racial or religious”, which is not really a shortcoming since what is important is not so much the objective determination of the characteristic features of each group as the fact that “measures have been taken in practice to distinguish them”. [FN88] Examining the preparatory work for the 1948 Convention, the ICTR specified that the Convention seeks to protect “any stable and permanent group”. [FN89] This was the case of the Tutsis, whose identity cards showed their ethnic affiliation. This is also the case of the Serbs, Croats and Muslims, defined as such in the Constitution of the SFRY, then that of Bosnia and Herzegovina. ------------------------------------------------------------------------------------------------- [FN87] Official Records of the General Assembly, Third Session, Part I, Sixth Committee, 69th meeting, p. 58 (Venezuela, Pérez Perozo). [FN88] A. M. La Rosa and S. Villalpando, op. cit., p. 90. [FN89] Akayesu case, Judgment of 2 September 1998, para. 701. ------------------------------------------------------------------------------------------------- 74. Muslim identity is not regarded in Bosnia as the mere fact of belonging to a religion; it refers to a group of persons sharing a particular culture, language and traditional way of life, as the applicant State indicates. It is therefore the expression “ethnic group” which covers most closely the motivation behind the crimes committed in Bosnia and Herzegovina by the Serbs. The ethnic group generally defines an infra-national and infra-State cultural or linguistic group. The victim may be the “Muslims of Srebrenica” [FN90] or of any other municipality, since they form part of the broader group represented by “the Bosnian Muslims”. The applicant State raised the possibility of defining the group negatively, namely “non-Serbs” (CR 2006/32, p. 23, para. 9 (Stern)); that does not imply the absence of acts of genocide for want of specific groups targeted, as the Respondent argues, for two communities were specially targeted, the Croats of Bosnia and Herzegovina and above all the Muslims of Bosnia and Herzegovina. As the Court has found, after the ICTY, on the basis of the information establishing the facts, the genocide was mainly targeted against the Muslims: quantitatively because they were the main victims of the mass-scale crimes; intentionally because they were targeted by the inflammatory statements of Serb leaders (notably by the political leader of the Bosnian Serbs, R. Karadžic). The fact that Croats have also been victims of crimes does not detract from the genocidal dimension of the criminal design. In all the genocides committed and recognized (Tutsis, Jews), persons of other groups than the originally targeted group have been victims without that affecting the reality of the characterization of genocide. In view of this, one might question the validity of [p427] retaining only a positive definition of the group targeted and of rejecting any negative definition; such a position is excessively restrictive and the corresponding interpretation of the drafting history of the Genocide Convention and the Court’s 1951 Advisory Opinion (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide) in paragraph 194 of the Judgment is not based on convincing assumptions. ------------------------------------------------------------------------------------------------- [FN90] Used by the ICTY in several cases (Tadic, Krstic, Blagojevic). ------------------------------------------------------------------------------------------------- 75. It was on the basis of the massacre of some 7,000 Muslims that the ICTY characterized the acts committed in 1995 in Srebrenica as genocide. General Radislav Krstic, whose individual genocidal intent was not upheld, was sentenced for complicity in genocide by the Trial Chamber on 2 August 2001, which sentence was upheld by the Appeals Chamber on 19 April 2004. It is on the basis of factual realities and the overall intent behind the crimes committed that the applicant State submits, with sufficiently convincing arguments, the existence of an intent on the part of the Serbs not just to remove completely the non-Serbs, particularly the Muslims, from certain Bosnian territories, but also to destroy the greater part and sometimes all of them in certain regions. In view of the special context of the acts committed in Bosnia and Herzegovina, there is indeed justification for extending the sense of “ethnic group”, or rather adopting a negative or reverse definition of it. It was in their awareness of their own membership of an ethnic group that the Serbs resolved to destroy on Bosnian territory the individuals not so affiliated. The concept of the objective reality of the ethnic group needs some tempering in keeping with the circumstances, so as also to take into consideration a subjective concept of the ethnic group on the part of the perpetrators of the crimes in the choice of their victims. The important consideration is the discriminatory choice of the victims on the basis of an affiliation or non-affiliation judged subjectively by the criminals. 76. Analysing the acts committed in Bosnia, Victor-Yves Ghebali recalls that the SFRY, before its break-up, comprised various branches of the Slav ethnic group (thus Serbs, Croats and Muslims) and non-Slav ethnic groups (such as the Albanians); [FN91] ethnic conflicts arise as soon as one of the protagonists makes a battle cry of protection of the collective identity of its proto-nation. The author also recalls the phantasmic dimension inherent in any genocide and the overestimation of the “collective Self” of an ethnic group, accompanied by the ontological diabolizing of another ethnic group of the nation-State being deconstructed. The need to restore a mythical State of original ethnic purity is then used to justify exterminating the diabolized ethnic group. Denouncing the ethnonationalistic self-overestimation of the Serbs, Mr. Ghebali confirms that [p328] ethnic cleansing was the purpose and not the consequence of the war, with its drift towards incitement to commit a genocide. ------------------------------------------------------------------------------------------------- [FN91] V.-Y. Ghebali, “Les Nations Unies et les organisations régionales dans les conflits yougoslaves: complémentarité ou concurrence ?”, Les Nations Unies et l’ex-Yougoslavie, rencontres internationales d’Aix-en-Provence, 1998, p. 41. By the same author, “Le semblable et le différent. Réflexions sur les conflits ethniques de l’Europe post-communiste”, Mélanges en l’honneur de Nicolas Valticos, 1998. ------------------------------------------------------------------------------------------------- 77. Let us note that the incitement must be direct and public at the same time, private incitement having not been taken into consideration by the drafters of the Convention. The intentional element of this offence lies in the awareness of the perpetrator that the acts that he or she is committing incite the commission of genocide. What is at issue is the intent to incite, regardless of whether or not such incitements have achieved their purpose and led effectively to the commission of genocide; direct and public incitement to commit genocide does not require proof that genocide has been committed. The fact of deliberately propagating the Greater Serbia ideology, of arousing racial hatred in the context of the period by calling for the creation of an exclusively Serb State, of inciting “ethnic cleansing” and of prompting a general spirit of ethnic and religious hatred, and so on, all amounts to direct and public incitement within the meaning of the Convention. In the Tadic case, for example, the ICTY went back over the propaganda campaign starting in 1989 to prepare the Serbs of Bosnia for the subsequent events by telling them that they were the target of a massacre that the Muslims were preparing. [FN92] The creation of a morbid climate of hate and fear centring on a specific group is always the starting-point for a policy of discrimination, gradually turning into a campaign of exactions and subsequently of elimination. ------------------------------------------------------------------------------------------------- [FN92] Tadic, IT-94-1-T, Trial Chamber, Judgment of 7 May 1997, para. 96. ------------------------------------------------------------------------------------------------- 78. The intentional element of conspiracy to commit genocide lies in the resolve to act with the aim of committing genocide, and in participation in a joint plan. The existence of a genocidal plan is logically a part of such a criminal enterprise, even if it did not necessarily culminate in practice. From all the material gathered by the applicant State, what can be seen is the existence of a conspiracy between the Belgrade and Pale authorities to plan and implement a policy of elimination of the Muslim populations by means of the various armed formations of the “Republika Srpska”, the Serb paramilitaries and certain elements of the Serb military forces (VRS or army of the “Republika Srpska”). While the intent can sometimes be observed, it is generally deduced from a number of acts and behaviour patterns, the assessment of which is naturally left to the appreciation of the judges, having due regard for “the preponderance of the evidence or the balance of probabilities”. [FN93] ------------------------------------------------------------------------------------------------- [FN93] A. M. La Rosa and S. Villalpando, “Le crime de génocide revisité. Nouveau regard sur la définition de la Convention de 1948 à l’heure de son cinquantième anniversaire. Tentative d’appréhension théorique des éléments constitutifs du crime”, op. cit., p. 101. ------------------------------------------------------------------------------------------------- B. Deduction of Genocidal Intent 79. A person alleging a fact must prove it and, once the Applicant has fulfilled the obligation of establishing proof of violation of the Convention, [p329] it is for the Respondent to adduce the defence evidence demonstrating that the alleged facts did not take place or were not committed with the intent to destroy a group protected by the Convention. The judges can consequently accept all evidence that they deem relevant and compelling, since “within the limits of its Statute and Rules, it [the Court] has freedom in estimating the value of the various elements of evidence, though it is clear that general principles of judicial procedure necessarily govern the determination of what can be regarded as proved” (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 40, para. 60). 80. Documentary evidence remains a prime form of evidence, but official declarations are also an important source to which the Court resorts to substantiate the facts. The Court itself has said that: “Among the legal effects which such declarations [by the authorities] may have is that they may be regarded as evidence of the truth of facts, as evidence that such facts are attributable to the States the authorities of which are the authors of these declarations and, to a lesser degree, as evidence for the legal qualification of these facts.” (Ibid., p. 43, para. 71.) Furthermore, “the Court is not bound to confine its consideration to the material formally submitted to it by the parties” (ibid., p. 25, para. 30) and it can itself seek other items of evidence. However, as we have already had reason to deplore, the Court did not make use of the means available to it, even when it appeared appropriate to do so. 1. Evidence of genocidal intent 81. The Convention provides no particular rules regarding proof of the moral element. The specific intent to destroy a national, ethnic, racial or religious group in whole or in part, within a general State policy, is seldom expressed and must necessarily be deduced from the circumstances of the particular case, especially when the requirement is to prove the tortious intent of a State. To demonstrate the genocidal intent of Serbia, it is not necessary that all the criminal acts were committed by agents of that State directly, nor that all the individuals having committed atrocities shared the genocidal intent. The establishment of the existence of a concerted genocidal plan advocated by military and paramilitary units that the State in question endorsed, assisted and supported in its implementation would be sufficient to show intent to commit genocide or to be an accomplice to it, which would then engage the responsibility of that State. 82. The applicant State has maintained that it is possible to presume the intent to commit genocide, but the requirement is rather to deduce this intent from the elements of the particular case and not to voice mere presumptions when it comes to proving a crime, especially such a serious one. It has been said in this respect: “The best evidence of an intentional element obviously lies in declarations, writings and other direct indications of the thinking of the perpetrator of the crime.” [FN94] Admittedly, in practice, because of the nature of this crime, it is hardly conceivable that rulers might publicly state or put in writing that they have a genocidal plan; hence it is essential to proceed by deduction in order to establish intent to take part in such a crime. The intent is therefore proved by logical deduction in the light of the acts of the accused by virtue of the principle that perpetrators are supposed to desire the consequences of their acts. With regard to genocide, the proliferation and systematic use of hate-filled speeches, violent shows of aggressiveness, instances of destruction [FN95] and cruel conduct, let alone massacres, towards a group protected by the Convention suggest or presuppose the intent to commit genocide. The number of victims is also an important item of evidence, for when the number of victims exceeds the tens of thousands of individuals belonging to one and the same group and extends to several geographical areas, that shows it to be a serious element of intent to commit genocide. In short, because such a subjective element as the intent to destroy a group is difficult to prove tangibly, it is essential to take account of all the relevant circumstances in the case, and above all of the convergence of items of evidence. It is for this reason that I am unable to subscribe to the assertions contained in certain paragraphs of the Court’s Judgment, inter alia, paragraphs 373 to 376, in which it dismisses the existence of a general plan to destroy a substantial part of the Bosnian Muslim population; in its examination, it does not really give due regard to or put into perspective all the material elements and evidence of intent apparent from the dossier before the Court. [p330] ------------------------------------------------------------------------------------------------- [FN94] D. Boyle, “Génocide et crimes contre l’humanité: convergences et divergences”, La justice pénale internationale dans les décisions des tribunaux ad hoc - Etudes des Law Clinics en droit pénal international, 2003, p. 137. [FN95] For example, in the Karadžic and Mladic cases, the Tribunal based its charge on, inter alia, the destruction of cultural monuments in finding the existence of this specific intent. ------------------------------------------------------------------------------------------------- 2. Ethnic cleansing [FN96] ------------------------------------------------------------------------------------------------- [FN96] Other expressions (e.g. ethnic purification) are sometimes used, without any detectable difference since they prove to be synonyms. ------------------------------------------------------------------------------------------------- 83. The “clinical” expression “ethnic cleansing” was apparently used for the first time in 1981 in the Yugoslav media, referring to the establishment [p331] of “ethnically pure territories” in Kosovo, [FN97] and it was initially journalistic and military vocabulary without any precise legal definition. The term was subsequently used by various entities, beginning with the Security Council, to describe the situation in Bosnia; it considered that ethnic cleansing was illegal and unacceptable, justifying the maintenance and even intensification of sanctions against the FRY (resolution 752 (1992) of 15 May 1992; resolution 787 (1992) of 16 November 1992). The fact that resolution 827 (1993) of 25 May 1993 establishing the ICTY to try the various violations of humanitarian law in Bosnia (preamble to the resolution) expressly mentions “ethnic cleansing” in its preamble as a grave crime is already an item of evidence that it may be regarded as tantamount to the crime of genocide. For its part, the General Assembly initially considered the “odious practice of ‘ethnic cleansing’” to constitute a violation of humanitarian law (resolution 46/242 of 25 August 1992) and subsequently reverted to it more precisely to condemn “the abhorrent policy ‘ethnic cleansing’, which is a form of genocide” (resolution 47/121 of 18 December 1992). The Commission on Human Rights used the term “ethnic purification” on 13 August 1992. The following year, it echoed the positions of the General Assembly by recalling that, on the one hand, the Muslim population was “virtually threatened with extinction” and, on the other, that the ethnic cleansing of which it was the principal victim constituted a form of genocide. According to the Special Rapporteur of the Commission on Human Rights on extrajudicial executions, “[t]he description of atrocities committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group as ‘ethnic cleansing’ particularly seems to be a euphemism”, [FN98] and he took the view that the executions of Muslims and Croats committed by the Serbs indeed corresponded to genocide as defined in the 1948 Convention. In the Brdjanin case, the ICTY speaks of a “coherent, consistent strategy of ‘ethnic cleansing’ against Bosnian Muslims”. [FN99] ------------------------------------------------------------------------------------------------- [FN97] D. Petrovic´, “Ethnic Cleansing - An Attempt at Methodology”, European Journal of International Law, 1994, Vol. 5, No. 3, p. 342. [FN98] “Extrajudicial, Summary or Arbitrary Executions”, Note by the Secretary-General, United Nations, doc. A/51/457, para. 69. [FN99] IT-99-36-T, Judgment of 1 September 2004, paras. 548-551; CR 2006/5, p. 30 (Karagiannakis). ------------------------------------------------------------------------------------------------- 84. Ethnic purification may start out as a mere forcible population transfer not featuring among the acts listed in the Convention and cannot in itself constitute proof of the intent to destroy, since displacement presupposes the survival of the group while genocide seeks its disappearance. But the operation can degenerate to take on another aspect, as observed by W. Schabas, and become “acts aimed at displacing a population in order to change the ethnic composition of a given territory, and [p332] generally to render the territory ethnically homogenous or ‘pure’”. [FN100] Above all, ethnic purification is seldom an isolated act of forcible displacement, for it is generally accompanied by murder, rape, torture and other acts of violence and the destruction of the religious and cultural heritage in order to wipe out all trace of the ousted ethnic group. Consequently, the factual situation is that ethnic cleansing and genocide are two notions that come closer to each other, and W. Schabas acknowledges that ethnic cleansing is the alarm signal heralding genocide. [FN101] This was sadly confirmed in Srebrenica, where all men of an age to bear arms were systematically killed and the rest of the population forcibly displaced; some 7,000 Muslims were killed, which represents 20 per cent of the population of the area. In the Krstic case, as has already been indicated, the ICTY said that “forcible transfer could be an additional means by which to ensure the physical destruction of the Bosnian Muslim community”, [FN102] and it added that “[t]he fact that the forcible transfer does not constitute in and of itself a genocidal act does not preclude a Trial Chamber from relying on it as evidence of the intentions of members of the VRS Main Staff. The genocidal intent may be inferred, among other facts, from evidence of other ‘culpable acts systematically directed against the same group’.” [FN103] ------------------------------------------------------------------------------------------------- [FN100] W. Schabas, Genocide in International Law, 2000, p. 199. [FN101] Ibid., p. 201. [FN102] Prosecutor v. Krstic, Appeals Chamber, Judgment of 19 April 2004, para. 31. [FN103] Ibid., para. 33. ------------------------------------------------------------------------------------------------- 85. Furthermore, the contribution of the Nikolic case in this respect is of interest because it introduces a globalizing vision of genocide which is described as a crime reflecting and covering a variety of acts where the intention may be deduced from the policy of “ethnic cleansing” and even from the gravity of the discriminatory acts. [FN104] It is therefore in such a context that ethnic cleansing should be placed, meaning that there gradually ceases to be a frontier with genocide itself; it is at once the warning signal, the means and the purpose. ------------------------------------------------------------------------------------------------- [FN104] Prosecutor v. Nikolic, Decision of 20 October 1995, para. 34. ------------------------------------------------------------------------------------------------- 3. The case law of the ICTY 86. The ICTY Statute, Article 4, paragraph 2, defines genocide by incorporating Articles II and III of the 1948 Convention, thereby enabling judges to apply that Convention, while recognizing that it had codified a rule of jus cogens. The judgments of the ICTY are of great use and real relevance for the Court in determining the facts and defining genocide, since the Tribunal has had occasion to evaluate the facts and the intentions of the perpetrators, thereby uncovering evidence of the existence of a genocidal plan among the persons who perpetrated and planned [p333] the operations carried out in Bosnia and Herzegovina. Among the persons prosecuted before the ICTY, 18 were charged with genocide and/or complicity in genocide. The Trial Chamber was “convinced beyond any reasonable doubt that a crime of genocide was committed in Srebrenica” in two cases (Radislav Krstic case [FN105] and Blagojevic case [FN106]) and it found the two accused guilty of complicity in genocide. Four other individuals were acquitted of the crime of genocide but found guilty of other crimes, [FN107] three individuals pleaded guilty and the charge of genocide was withdrawn, [FN108] six cases are still pending [FN109] and three accused are still at large. [FN110] ------------------------------------------------------------------------------------------------- [FN105] Krstic (IT-98-33). [FN106] Blagojevic (IT-02-60). [FN107] Brdjanin (IT-99-36), Jelisic (IT-95-10), Sikirica (IT-95-8), and Stakic´ (IT-97-24). [FN108] Momir Nikolic (IT-98-33), Obrenovic´ (IT-02-60/2), and Plavsic´ (IT-00-39 and 40/1). [FN109] Beara (IT-02-58), Borovcanin (IT-02-64), Krajisnik (IT-00-39 and 40), Drago Nikolic (IT-03-63), Pandurevic´ (IT-05-86) and Popovic´ (IT-02-57). [FN110] Karadžic, Mladic and Tolimir. ------------------------------------------------------------------------------------------------- 87. The case law of the judgments of criminal tribunals, with regard to the intentional element, may be enlightening. For example, the contribution of the Ntakirutimana Judgment [FN111] lies in the fact that the ICTR Appeals Chamber echoed, in that case, some of the findings of the ICTY Appeals Chamber in the Krstic case. Consequently the findings of the Krstic Judgment are now binding on the ICTY and the ICTR Trial Chambers. Upon conclusion of its analysis, the ICTR Appeals Chamber adopted and applied the findings of the Krstic Judgment, deeming that “[t]he intent to commit genocide is not required for an accused to be found guilty of aiding and abetting genocide” (para. 508) and that “a conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case law of this Tribunal” (para. 501). On the basis of the facts of the case, the Appeals Chamber considered that Gérard Ntakirutimana was criminally liable on account of having “aided and abetted genocide” and handed down a new sentence accordingly (paras. 509 and 560). ------------------------------------------------------------------------------------------------- [FN111] Prosecutor v. Ntakirutimana, ICTR-96-10-A and ICTR-96-17-A, Appeals Chamber, Judgment of 13 December 2004. ------------------------------------------------------------------------------------------------- 88. The Blagojevic et al. Judgment (17 Jan. 2005, ICTY) formulates the most important developments since the Krstic Judgment regarding certain elements of the crime of genocide. In this case, an ICTY Trial Chamber specified the notion of “physical or biological destruction” of a group (entering into the definition of dolus specialis) and, further, defined the mens rea of the superior required by Article 7 (3) of the ICTY Statute for a sentence for the crime of genocide. [p334] 89. On the basis of the opinion of Judge Shahabuddeen in the Krstic Judgment, and after analysing the texts and the situation, the Chamber considered that “the term ‘destroy’ in the genocide definition can encompass the forcible transfer of a population” (para. 665) and that: “the physical or biological destruction of a group is not necessarily the death of the group members. While killing large numbers of a group may be the most direct means of destroying a group, other acts or series of acts, can also lead to the destruction of the group. A group is comprised of its individuals, but also of its history, traditions, the relationship between its members, the relationship with other groups, the relationship with the land. The Trial Chamber finds that the physical or biological destruction of the group is the likely outcome of a forcible transfer of the population when this transfer is conducted in such a way that the group can no longer reconstitute itself - particularly when it involves the separation of its members. In such cases the Trial Chamber finds that the forcible transfer of individuals could lead to the material destruction of the group, since the group ceases to exist as a group, or at least as the group it was. The Trial Chamber emphasizes that its reasoning and conclusion are not an argument for the recognition of cultural genocide, but rather an attempt to clarify the meaning of physical or biological destruction.” (Para. 666.) 90. With regard to the facts of the case and in accordance with this approach, the Blagojevic et al. Judgment concluded that: “the criminal acts committed by the Bosnian Serb forces were all parts of one single scheme to commit genocide of the Bosnian Muslims of Srebrenica” (para. 674). Pursuing, in this case, its examination of complicity in genocide by virtue of Articles 4 (3) (e), 7 (1) and 7 (3) of the Statute, the Chamber specified the contribution of the Krstic Judgment regarding the complicity of superiors and the mens rea, concluding that: “The Trial Chamber finds that the mens rea required for superiors to be held responsible for genocide pursuant to Article 7 (3) is that superiors knew or had reason to know that their subordinates (1) were about to commit or had committed genocide and (2) that the subordinates possessed the requisite specific intent.” (Para. 686.) 91. It is true that the decisions reached on the merits by the ICTY in genocide cases are not numerous, but there are a great many findings of fact and of law concerning the commission of crimes against humanity, murder, rape, forcible displacement and the destruction of mosques and [p335] other traces of Muslim culture, and when these findings are taken cumulatively, they point to the existence of a broader plan entailing a policy of genocide; as the Applicant indicated, by reference to this mass of criminal acts, “[i]t is that terrible pattern which, ultimately, transforms many ordinary cases into overarching and undeniable genocide” (CR 2006/5, p. 19, para. 34). V. THE ISSUE OF THE ATTRIBUTABILITY OF ACTS OF GENOCIDE TO THE RESPONDENT 92. In order to engage the responsibility of a State on the basis of commission of the crime of genocide, it must be shown that the conduct of the organs and persons who effectively perpetrated the crime is attributable to that State. The International Law Commission’s Articles on State Responsibility for Internationally Wrongful Acts appended to General Assembly resolution 56/83 [FN112] provide for various means by which conduct can be attributed to a State. The conduct at issue may be that of a State organ, in which case it will be directly attributable to the State, or it may be that of an organ or persons who are not officially under the State’s direction, but are in fact acting as a de facto organ of the State, on its instructions or under its control. ------------------------------------------------------------------------------------------------- [FN112] General Assembly resolution 56/83, A/RES/56/83, 12 December 2001, Fifty-sixth Session. ------------------------------------------------------------------------------------------------- 93. In the present case, the responsibility for the crime of genocide committed in Bosnia and Herzegovina can be attributed to the Respondent inasmuch as several of its State organs were directly or indirectly involved in its perpetration. The conduct of various organs of the Republika Srpska is also attributable to the Respondent where they appear to be de facto organs of the Federal Republic of Yugoslavia (FRY) or at least acting under its control. The responsibility of the Respondent is not only engaged in the event of its having committed genocide directly, but also for acts related to the genocide, as we shall see below. A. The Responsibility of the Respondent for Acts Committed by Its de Jure Organs 94. Under Article 4 of the above-mentioned International Law Commission Articles, “[t]he conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as [p336] an organ of the central government or of a territorial unit of the State”. It is common knowledge and, more importantly, evidence exists before the ICTY that both political and military organs under the authority of the Respondent effectively committed war crimes and crimes against humanity within the framework of a policy of “ethnic cleansing”, for which there are serious presumptions of genocidal intent, and continued to perpetrate them even after the formal “withdrawal” from Bosnian territory of the Respondent’s army. Implementation of those operations by Serb combatant forces could not have taken place without a broad-ranging master plan developed by the highest political authorities of the Respondent to enable the control of certain territories and to remove the non-Serb populations from them, by means including their expulsion or, sometimes, extermination of protected groups. 95. All of the acts of the JNA and then the VJ and the Serbian paramilitary units are attributable to the Respondent, irrespective of whether they constitute actions or omissions. The same conclusion would be reached even if it was to be shown that its armed forces were in fact acting under the control of the Republika Srpska, as the Respondent cannot disclaim its responsibility for internationally wrongful acts committed by elements appertaining to its armed forces; indeed, Article 7 of the ILC’s Articles provides for the responsibility of a State even when its organs have not followed its instructions or have followed the instructions of another authority. Determining the responsibility of the authorities in Belgrade in the acts perpetrated in Bosnia and Herzegovina amounts to demonstrating that the JNA and the other combatant forces were those who carried out a scheme conceived and launched with the agreement and involvement of the said authorities. 96. Ethnic cleansing was thus planned by the political authorities of the Respondent. Propaganda to that effect had been deployed following the dissolution of the Yugoslav Communist Party in January 1990. That propaganda was centred on the notion that the Serbian people had been the victim of genocides for over a century and that it had to protect itself from these in the future, hence the idea of a “Greater Serbia” based on a simple principle: “all the Serbs within a single State”. The guiding principle was that, in the event of the break-up of Yugoslavia, the borders of the new Serbian State should not follow those of the former Republics, but be drawn along ethnic lines. As of 15 January 1991, Miloševic made reference to such a reunified Serbian nation within the boundaries of one single State made up of at least three federal units: Serbia, Montenegro and a united Bosnia and Knin region. 97. The events in Bosnia were thus part of a master plan which represented just one aspect of the Greater Serbia project and involved a three-pronged approach of military, political and propaganda operations. The military operation was directed towards ethnic cleansing, to be implemented by the regular army of Yugoslavia and the combatant forces [p437] enrolled alongside it. To do that, it was necessary to rid the Respondent’s army of its non-Serb elements beforehand, in order to ensure its loyalty in the forthcoming conflicts and to organize the arming of the Serb populations. It was the Belgrade authorities which launched hostilities against Bosnia and Herzegovina, just after its declaration of independence. The political operations consisted of co-ordinating the action of the various Serb belligerents and helping them to establish parallel institutions, both at the level of the Republika Srpska and at the lower levels within that new entity. The Serbian authorities also acted to make sure that the “formal” withdrawal of the JNA did not endanger ethnic cleansing. The FRY’s intention to carry out that plan and its direct involvement long after 19 May 1992 were condemned by the General Assembly in its resolution 49/10 of 8 November 1994. In that resolution, the United Nations General Assembly called upon “all parties, in particular the Federal Republic of Yugoslavia (Serbia and Montenegro), to comply fully with all Security Council resolutions regarding the situation in the Republic of Bosnia and Herzegovina and strictly to respect its territorial integrity, and in this regard concludes that their activities aimed at achieving integration of the occupied territories of Bosnia and Herzegovina into the administrative, military, educational, transportation and communication systems of the Federal Republic leading to a de facto state of occupation are illegal, null and void, and must cease immediately”. [FN113] ------------------------------------------------------------------------------------------------- [FN113] General Assembly resolution 49/10 of 8 November 1994, doc. A/RES/49/10. ------------------------------------------------------------------------------------------------- The General Assembly denounced the plans it attributed to the Respondent, especially the project of establishing a “Greater Serbia”, and ordered it to abandon the measures taken on the ground by the Republika Srpska, responsibility for which the Assembly nevertheless attributed to the Respondent. 98. The JNA (the Respondent’s army), the security forces and the Serb paramilitary groups did not therefore exceed their authority; indeed they acted with the joint co-operation of two authorities, the Respondent and the Republika Srpska, when intervening in the territory of Bosnia and Herzegovina. The presence of the Respondent’s forces is revealed by internal documents of the Republika Srpska’s forces, which inter alia indicate their presence during the Srebrenica massacre in July 1995, citing precisely the entities involved (special forces of the Serbian Ministry of the Interior and the Scorpions paramilitary unit). [FN114] And as the Court has recalled elsewhere, “the conduct of any organ of a State must be regarded as an act of that State” (Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human [p438] Rights, Advisory Opinion, I.C.J. Reports 1999 (I), p. 87, para. 62). This principle, originating in general international law with respect to the law of armed conflicts, written into the Geneva Conventions and included in the ILC’s draft Articles, was recently reiterated by the International Court of Justice in the case between the Congo and Uganda: “According to a well-established rule of a customary nature, as reflected in Article 3 of the Fourth Hague Convention respecting the Laws and Customs of War on Land of 1907 as well as in Article 91 of Protocol I additional to the Geneva Conventions of 1949, a party to an armed conflict shall be responsible for all acts by persons forming part of its armed forces.” (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 242, para. 214.) ------------------------------------------------------------------------------------------------- [FN114] The documents attesting to the presence of the Respondent’s forces are telegrams from the commander in Trnovo cited in the Applicant’s Reply, appended as annexes to that document and referred to during the oral arguments. ------------------------------------------------------------------------------------------------- The Court had moreover to apply that principle and recognize in the same case that “Uganda at all times has responsibility for all actions and omissions of its own military forces in the territory of the RDC in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation” (ibid., para. 180, see also paras. 220, 250 and 345). 99. The Respondent has recently acknowledged the responsibility of some of its organs for certain crimes committed during the conflict. Such acknowledgment is, however, couched in vague terms and resembles more a condemnation of war criminals and their crimes than one of acts of genocide. On 15 June 2005, the Council of Ministers of Serbia and Montenegro thus adopted an official declaration in which it solemnly condemned “the crimes committed against Bosnian prisoners of war and civilians in Srebrenica in 1995”. The declaration contained another paragraph of far greater significance: “Those who committed the killings in Srebrenica, as well as those who ordered and organized that massacre represented neither Serbia nor Montenegro, but an undemocratic régime of terror and death, against whom the great majority of citizens of Serbia and Montenegro put up the strongest resistance. Our condemnation of crimes in Srebrenica does not end with the direct perpetrators. We demand the criminal responsibility of all who committed war crimes, organized them or ordered them, and not only in Srebrenica. Criminals must not be heroes. Any protection of the war criminals, for whatever reason, is also a crime.” 100. The Council of Ministers of Serbia and Montenegro therefore condemned a “massacre”, implicating perpetrators from and the leadership of that same State. The unrepresentative nature of the authorities of the time referred to in the text cannot attenuate, much less annul, the [p439] resulting legal consequences for the Respondent, as the actions were those of the Government of an established State at that time, effectively exercising its power and recognized as such by the international community. The actions of that Government, by virtue of the universally acknowledged principle of State continuity notwithstanding changes of régime, [FN115] remain acts of that State which continue to engage its international responsibility. Even if the statement avoids mentioning genocide, it does at least acknowledge the massacre at Srebrenica: it speaks of “crimes”, “killings” and “war crimes”, but it is not for Serbia and Montenegro unilaterally to characterize these acts; what it views as “crimes”, “killings”, “war crimes” and other acts of violence can very easily be qualified differently. It is obvious that this belated declaration can be considered as an acknowledgment of the responsibility of the Serbian State for the killings in Srebrenica - qualified as genocide by the ICTY. It is not insignificant that it acknowledges the veracity of certain acts and that it attributes them to the Government of the time, whose actions engage the international responsibility of the State. Moreover, the genocide in Srebrenica cannot be taken out of its context and is but the culmination of a criminal undertaking that had been pursued for several years. ------------------------------------------------------------------------------------------------- [FN115] The reference here is to the change of régime within the FRY and not the demise of the SFRY. ------------------------------------------------------------------------------------------------- B. The Responsibility of the Respondent for the Acts of Organs of the Republika Srpska 101. Following the apparent withdrawal of the Respondent’s forces on 19 May 1992, the implementation of ethnic cleansing reached its height by means of the Republika Srpska and the parallel institutions established by the Bosnian Serbs. That “handover” of the genocide was to a large extent no more than a subterfuge designed to make sure that the pressure exercised by the international community upon the Respondent did not become too great and thereby endanger the Serbian master plan. The Republika Srpska and its combatant forces were in reality so closely controlled by the Respondent that they can even be treated as de facto organs of the latter. 1. The organs of the Republika Srpska regarded as de facto organs of the Respondent 102. Before determining whether the organs of the Republika Srpska can be equated to organs of the Respondent, it is necessary to come back to the nature and purpose of the parallel institutions set up on Bosnian territory. The purpose in Bosnia was to establish territorial continuity between all the Serb territories of Bosnia and Herzegovina in such a way as to permit their attachment to Serbia and to make any non-Serb State impossible in these territories. To achieve this, the Bosnian Serbs established [p440] parallel institutions at the level of their republic and at the regional and municipal levels. The Serb Assembly of Bosnia and Herzegovina was thus established on 24 October 1991. On 9 January 1992, that Assembly proclaimed the Serb Republic of Bosnia, which was renamed the Republika Srpska (RS) on 12 August 1992. In March 1992, an MUP (Ministry of the Interior attached to the federal structure of the Respondent) was established for the Serbs of Bosnia. The creation of these institutions was officially supposed to enable the autonomy of the territories of Bosnia with a mostly Serb population to be upheld and so facilitate their attachment to the FRY. They were above all to be made use of in order to carry out ethnic cleansing, so as to turn the coveted territories, by every means, into territories with a solely or mostly Serb population. 103. It may on the face of it seem questionable to state that the acts of the Bosnian Serbs’ armed forces (VRS) could be attributed to the Respondent by mere assimilation to an organ of the Serbian State. Apparently, these forces were not formally termed organs of the Respondent by its own internal law, and Article 4, paragraph 2, of the ILC Articles quoted above specifies that: “An organ includes any person or entity which has that status in accordance with the internal law of the State.” The main criterion for determining status as an organ of the State of a person or group of persons therefore rests on the qualification that the internal law of the State confers on that person or group of persons. However, according to the ILC commentary, “a State cannot avoid responsibility for the conduct of a body which does in truth act as one of its organs merely by denying it that status under its own law. This result is achieved by the use of the word ‘includes’ in paragraph 2.” [FN116] Any misclassification of a person, by internal law, with the aim of absolving the State of its international responsibility cannot be invoked if that person in fact behaves as an organ of the State within the State structure. ------------------------------------------------------------------------------------------------- [FN116] Report of the International Law Commission, Fifty-third Session, 2001, A/56/10, para. 11. ------------------------------------------------------------------------------------------------- 104. In the present case, the Applicant in its oral arguments (CR 2006/ 10) refers to such conduct by speaking of effective assimilation to a State organ. Here it is the effective links between the State and these apparently external entities which must be taken into account. The organ whereby the State acts may be de jure or de facto; what matters is that it behaves in this capacity and that it acts on behalf of the State, and that the persons or groups of persons concerned may be equated with State organs. In the Tadic case, the ICTY considered that the acts committed by a group of persons could be assimilated “to State organs on account of their actual behaviour within the structure of a State (and regardless of any possible requirement of State instructions)”. [FN117] [p441] ------------------------------------------------------------------------------------------------- [FN117] ICTY, Tadic, IT-94-1-A, Appeals Chamber, Judgment of 15 July 1999, para. 141. ------------------------------------------------------------------------------------------------- 105. Indeed, the RS and its entities considered themselves to be territorial subdivisions of the Respondent. The sole purpose of the RS was to become attached to the FRY, to act like a constituent federal republic, which implies that it did not wish to act as an independent entity and enjoyed only very limited autonomy with respect to the FRY. This intention is moreover formally borne out by the “Constitution” of the Republika Srpska: according to Article 3 of the consolidated version of the text, “[t]he Republic shall be part of the Federal Republic of Yugoslavia”; according to its Article 6, “[t]he citizens of the Republic shall possess the nationality of Yugoslavia and the nationality of the Republic”. This Constitution thus recognizes the relationship of subordination and the submission of the Republika Srpska to the FRY, particularly since this consolidated version was adopted after the withdrawal of the JNA and the self-styled declaration of independence of the Republika Srpska. These parallel institutions were in no way recognized by the international community and had no legal existence except by way of the Respondent, as was illustrated at the negotiation of the Dayton Agreements, where there was a single Serb delegation, representing both the FRY and the Pale authorities. 106. In many respects, the establishment of the army of the Republika Srpska (VRS) as an entity distinct from the Respondent’s armed forces was largely a matter of form, as in reality it appeared to be more of a command unit of the reconstructed Yugoslav army, an extension of the JNA (the army of the FRY) with a certain degree of autonomy, rather than an independent army. The indictment concerning General Momcilo Perisic´ is very instructive on this point. As the Chief of General Staff of the FRY’s army from 1993 to 1998 and thus responsible for implementing the decisions of the Supreme Defence Council of the FRY, General Perisic´ played a key role in the support provided to the VRS, as set out in the indictment: “During his tenure . . . Momcilo Perisic´ exercised his authority, pursuant to the policies and limitations set by the SDC, to provide substantial military assistance to the VRS which he knew was used, in significant part, in the commission of the crimes described in this indictment. Such assistance included continuing the practice of providing the majority of senior officers in the VRS as well as supplying large quantities of weapons, ammunition, and other logistical materials necessary for the commission of crimes . . . In some instances such assistance consisted of sending regular VJ troops stationed in the FRY into BiH. Momcilo Perisic´ provided this assistance through acts performed directly by him and by acts performed by his subordinates.” [FN118] ------------------------------------------------------------------------------------------------- [FN118] ICTY, IT-04-81, Amended Indictment, paras. 8-9. [p442] ------------------------------------------------------------------------------------------------- The indictment subsequently makes the following observation: “The co-ordination between the VJ and the VRS was so close that the political leaders of the Republika Srpska and General Ratko Mladic could request that particular VJ officers be placed under their operational command or be retired via the 30th Personnel Centre.” (Para. 14.) This is of course only an indictment and the allegations it contains have not been confirmed by the Tribunal, but there is every chance that they will be, judging by the decisions already made concerning persons with a lower level of responsibility; as the ICTY Trial Chamber stated in the Prosecutor v. Brdjanin case, “the steps taken to create a VRS independent of the JNA were merely a ploy to fend off any potential accusations that the FRY was intervening in the armed conflict taking place on the territory of Bosnia-Herzegovina and to appease the requests of the international community to cease all involvement in the conflict”. [FN119] ------------------------------------------------------------------------------------------------- [FN119] ICTY, Prosecutor v. Brdjanin, IT-99-36-T, Judgment of 1 September 2004, para. 151. ------------------------------------------------------------------------------------------------- 107. Command of the army of the Republika Srpska was not really independent and one might instead speak of autonomy in relation to the JNA, from which many officers were seconded to the VRS to assist it and sometimes to take charge of military operations. On 25 April 1992, when Bosnia and Herzegovina was already recognized as an independent State, General Mladic was appointed commander of the 2nd District of the JNA by the Belgrade authorities. He was thus given responsibility for commanding all the JNA forces in Bosnia. After the “formal” withdrawal of Serbian troops, he nevertheless remained in place. The JNA changed its name in that territory to the VRS, but Mladic was not recalled to Belgrade and, on the contrary, he became the commander-in-chief of that army with the same responsibilities (same troops, same territory, etc.); on 24 June 1994, Belgrade’s Supreme Defence Council - the highest political military authority in the FRY - promoted him to the rank of lieutenant-general in the Respondent’s army, a rank which he kept until May 2002. 108. In Belgrade, within the Respondent’s army renamed the VJ, a new department was established by the Supreme Defence Council to manage and control all the officers of the Respondent’s army (the VJ) engaged in the Bosnian conflict in the ranks of the VRS: the 30th Personnel [p443] Centre. Through that department, the officers continued to be paid by the VJ while serving on behalf of the VRS. All the personnel matters concerning those officers (pay, pensions, promotions, etc.) were taken over by this department of the VJ as they remained officers of the Respondent’s army, while the rest of the VRS’s troops were paid from the budget of the Serb Republic of Bosnia, although that budget was itself largely provided by Belgrade. The records of meetings of the Supreme Defence Council prove that Belgrade had full control over a significant proportion of the Republika Srpska’s army officers who were first and foremost officers of the Respondent’s army, beginning with the commander-in-chief. In that regard, the Court arrives at some surprising conclusions in paragraph 388. One of them is that no evidence has been presented that either General Mladic or any of the other officers whose affairs were handled by the 30th Personnel Centre were, according to the internal law of the Respondent, officers of its army. How can officers be promoted to very high ranks in the Respondent’s command if they do not belong to the senior officer corps of that same command? What more evidence can be provided than the inclusion of the officers concerned on the Respondent’s official list in which only officers legally recognized by its own internal law can appear? The other conclusion is that it does not appear from the internal law of the Respondent that they belonged to its army, which is not only questionable, as I have just explained, but also contradicts what is said at the end of that same paragraph: the Court notes that those officers (and more particularly General Mladic) may have been being “administered” from Belgrade; but they cannot be under the control of Belgrade, even for administrative purposes, unless they are governed by the Respondent’s internal law. Moreover, the argument of administrative control put forward by Belgrade and taken up by the Court is in reality no more than a legal subterfuge, as the ICTY has revealed in certain of its judgments, to disguise the involvement of the Respondent’s agents. 109. Even if the VRS cannot be regarded as a de facto organ of the Respondent - although it might be characterized as such on the basis of the criterion of overall control, as we shall see below - it clearly appears, because of the effective links with that State and the close unison achieved through the quite substantial presence of officers of the Respondent, to have acted on its directions or under its control. For the ICTY Trial Chamber, “Throughout 1991 and into 1992, the Bosnian Serb leadership communicated with the SFRY leadership on strategic policy in the event that BiH would become independent. The Trial Chamber is satisfied that these factors coupled with the continued payment of [p444] the salaries of the VRS officers by Belgrade indicate that, after 19 May 1992, the VRS [army of the Republika Srpska] and the VJ [Yugoslav army] did not constitute two separate armies . . . The Trial Chamber is satisfied that, despite the change of name from JNA to Army of the SerBiH after 19 May 1992, and subsequently to VRS, no consequential material changes actually occurred. While the change in name did not point to any alteration of military objectives and strategies, the equipment, the officers in command, the infrastructures and the sources of supply also remained the same.” [FN120] ------------------------------------------------------------------------------------------------- [FN120] ICTY, Prosecutor v. Brdjanin, IT-99-36-T, Judgment of 1 September 2004, para. 151. ------------------------------------------------------------------------------------------------- 110. We have already likewise noted that the MUP (Interior Ministry) of the Bosnian Serbs - and its fighting forces, notably the paramilitary groups - also acted in unison with the federal MUP. The functional ties rendering the organs of the Republika Srpska dependent on the Respondent confirm the possibility of equating them with organs of the latter. The reality of these links, particularly in structural terms, is sufficient without any need to demonstrate that the RS was “totally dependent” on the FRY. The Respondent provided all the weaponry of the VRS, taking care to leave it its own arsenal at the time of the 19 May 1992 withdrawal; and it did not fail to provide the VRS and the paramilitaries with weapons, munitions and fuel, to pay the officers’ salaries via the 30th Personnel Centre, and to reorganize its financial structures culminating in a certain form of integration of the economies of the FRY and the Republika Srpska. The budget of the Republika Srpska was, if not entirely then at least largely, funded by Belgrade; while the other VRS military were theoretically paid out of the budget of the Serb Republic of Bosnia, their pay was in fact provided by issues of the Respondent’s currency. The Republika Srpska was in such a close relationship with the FRY that its proclaimed independence was no more than a kind of façade to avoid compromising the FRY in the eyes of the international community and the imposition of sanctions, inter alia by the United Nations Security Council. 111. It is this conclusion which prompted the Presiding Judge of the ICTY Trial Chamber in the Tadic case to dissociate herself from the other two judges in order to contend, in her separate and dissenting opinion, that the Respondent’s involvement was manifest, after a detailed and well-argued analysis of which it is worth repeating here the essential elements contained in the following three paragraphs: “7. The evidence proves that the creation of the VRS was a legal fiction. The only changes made after the 15 May 1992 Security Council resolution were the transfer of troops, the establishment of a [p445] Main Staff of the VRS, a change in the name of the military organisation and individual units, and a change in the insignia. There remained the same weapons, the same equipment, the same officers, the same commanders, largely the same troops, the same logistics centres, the same suppliers, the same infrastructure, the same source of payments, the same goals and mission, the same tactics, and the same operations. Importantly, the objective remained the same: to create an ethnically pure Serb State by uniting Serbs in Bosnia and Herzegovina and extending that State from the Federal Republic of Yugoslavia (Serbia and Montenegro) to the Croatian Krajina along the important logistics and supply line that went through opstina Prijedor, thereby necessitating the expulsion of the non-Serb population of the opstina. 8. Although there is little evidence that the VRS was formally under the command of Belgrade after 19 May 1992, the VRS clearly continued to operate as an integrated and instrumental part of the Serbian war effort. This finding is supported by evidence that every VRS unit had been a unit in the JNA, the command and staffs remaining virtually the same after the re-designation. The VRS Main Staff, the members of which had all been generals in the JNA and many of whom were appointed to their positions by the JNA General Staff, maintained direct communications with the VJ General Staff via a communications link from Belgrade. Colonel Selak, commander of the logistics platoon that provided logistical support to units in the Banja Luka area (both before and after 19 May 1992), stated: ‘Some officers had been given direct [telephone] lines, Belgrade/ Pale. There was a link there and it was used in everyday communication because there was a need for direct communication between the Chief of Staff of the Army of Republika Srpska with the Army of Yugoslavia.’ Moreover, the VRS continued to receive supplies from the same suppliers in the Federal Republic of Yugoslavia (Serbia and Montenegro) who had contracted with the JNA, although the requests after 19 May 1992 went through the Chief of Staff of the VRS who then sent them onto Belgrade. The ties between the military in Bosnia and Herzegovina and the SDS political party, which advocated a Greater Serbia, similarly remained unchanged after the re-designation. 10. All of this, including the evidence referred to by the majority, makes obvious that the re-designation was motivated only by the desire of the Federal Republic of Yugoslavia (Serbia and Montenegro) to avoid offending the international community by violating the [p446] Security Council resolution ordering the JNA to cease involvement in Bosnia and Herzegovina.” [FN121] ------------------------------------------------------------------------------------------------- [FN121] ICTY, Tadic, IT-94-1-A, Trial Chamber, Judgment of 7 May 1997, separate and dissenting opinion of Judge Gabrielle Kirk McDonald. ------------------------------------------------------------------------------------------------- It is on the basis of that argumentation that the Chamber’s Presiding Judge criticized the other two judges, first for having adopted a criterion of effective control which was inappropriate and unnecessary for the case concerned, and second for having applied that criterion wrongly, since it was in any event apparent from the evidence examined that such control existed. [FN122] We can only concur with that analysis and those findings. ------------------------------------------------------------------------------------------------- [FN122] According to Judge McDonald: “Thus, if effective control is the degree of proof required to establish agency under Nicaragua, I conclude that this standard has been met.” (Ibid., para. 15.) ------------------------------------------------------------------------------------------------- 2. The control exerted by the Respondent over the organs of the Republika Srpska 112. The responsibility of Serbia for the acts and omissions of its organs does not rule out its responsibility on other accounts, and notably for the behaviour of persons or groups of persons in fact acting on the instructions or directions, or under the control, of the Belgrade authorities. In view of the above-mentioned degree of unison existing between the staff of the Republika Srpska’s army and that of the Respondent, it follows that the instructions and directions were in a way practically automatic as regards both the planning and implementation of the military operations carried out by the VRS. The intelligence apparatus at the disposal of the army of the FRY enabled it to be fully informed about how operations were proceeding. The indictment of Momcilo Perisic´, the Chief of General Staff of the FRY’s army, cited previously, gives a clear illustration of that system: “During the time relevant to this indictment the VJ maintained its own intelligence apparatus that was actively engaged in gathering information about what was transpiring in the conflicts in BiH . . . This apparatus provided Momcilo Perisic´ with regular timely reports of events. The VJ General Staff also received intelligence reports from VRS intelligence organs. Other factors which served to place Momcilo Perisic´ on notice of the crimes that were being committed by VJ personnel or with VJ material and logistical assistance included . . .” [FN123] ------------------------------------------------------------------------------------------------- [FN123] IT-04-81, Amended Indictment, para. 33. ------------------------------------------------------------------------------------------------- As was attested by numerous documents produced both in the written pleadings and during the oral arguments, not only was a constant stream of communications set up and maintained throughout the war in Bosnia [p447] among the military and political authorities, but there were also regular major co-ordination meetings involving the leading officials of the Respondent and of the Republika Srpska, as illustrated inter alia by the famous minutes of the Supreme Defence Council. The main purpose of those meetings was precisely to review the events which had taken place in order to draw the necessary conclusions and decide on further instructions or directions. In such a situation, there is co-ordination among various forms of control resulting in overall control, which is the most relevant way of describing and accounting for the relations between the organs of the Republika Srpska and those of the Respondent that were such as to engage the responsibility of the latter. 113. The Court has had occasion to define this criterion for attributing responsibility to a State on the basis of control in other cases. The Court took the view in its Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) that it should in principle have to be proved that [the United States of America] had effective control of the military or paramilitary operations in the course of which the alleged violations were committed. The Court adopted a restrictive definition of control and was to consider in that same case that “United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself . . . for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States.” (I.C.J. Reports 1986, pp. 64-65, para. 115.) 114. Following this reasoning with reference to the present case, if responsibility is to be attributed to the Respondent for the acts of the Republika Srpska, the control exerted by it must not only be control of a general character exerted over an extremely dependent force: the control should be such that the Republika Srpska had forfeited its autonomy or “free will”. In other words, the requirement is to demonstrate that the extent of the control was such that the Respondent effectively ordered or imposed the perpetration of acts of genocide and that their commission would have been impossible without specific instructions issued by the [p448] organs of the Respondent. While the requirement for such a degree of control, which appears very strict, can be explained in the Nicaragua case, it is not certain that the same criterion should be applied in that concerning Bosnia and Herzegovina. A straightforward comparison of the two situations is sufficient to illustrate the limits of such an exercise and to realize that, although there are certain similarities in the circumstances of the Nicaragua and the Bosnia and Herzegovina cases, the differences between them are both more numerous and more significant. 115. The circumstances in which the Court delivered its Judgment in the Nicaragua case were the following: the contras were not United States nationals; they were not part of a rank-ordered organic apparatus structurally linked to the United States; they were not fighting to attach the territory of Nicaragua to that of the United States; they exerted no control over any part of the territory of Nicaragua, as they were essentially based on the borders of the neighbouring States. While the United States backed that paramilitary organization, their respective “projects” were fairly far apart and only came together on one aim: that of destabilizing and overthrowing the government in place in Nicaragua. In view of this, it was difficult to demonstrate the involvement of the United States by way of some vague and uncertain general control, and very precise evidence therefore needed to be found to show that the United States exerted effective control over the activities of the contras, which may explain, in that case, the criteria for the definition of control adopted by the Court. 116. As to the links between the Republika Srpska and the Respondent, we have just examined at length their nature and the type of control effectively exerted between the two entities. It is for the same reason that the ICTY has endorsed a different criterion of control from that of the Nicaragua case, by relying on the facts which it has analysed with considerable rigour and perception to arrive at the notion of “overall control”. According to the ICTY, “[t]he degree of control may . . . vary according to the factual circumstances of each case”. [FN124] In the Delalic´ case, the Appeals Chamber concluded that “[t]he ‘overall control’ test could . . . be fulfilled even if the armed forces acting on behalf of the ‘controlling State’ had autonomous choices of means and tactics although participating in a common strategy along with the ‘controlling State’”. [FN125] In the Tadic case, the Appeals Chamber also indicated that the degree of control could vary and distinguished at least two eventualities reflecting the situation on the ground and what is at stake for the protagonists: [FN126] - the State whose responsibility is sought is not that on the territory of which the armed clashes occur, in which event the existence of effective control must be established in each individual case; - the State exercising control is the immediate neighbour of the State where clashes aimed at satisfying expansionist aims are taking place. In this scenario, general control is sufficient to implicate the Respond-ent meaningfully and effectively in the actions carried out by the various Serb forces operating in the territory of Bosnia and Herzegovina. ------------------------------------------------------------------------------------------------- [FN124] ICTY, Tadic, IT-94-1-A, Judgment of 15 July 1999, para. 117. [FN125] ICTY, Delalic´ et al., IT-96-21, Appeals Chamber, Judgment of 20 February 2001, para. 47. [FN126] See above-cited Judgment of 15 July 1999, paras. 138 and 139. [p449] ------------------------------------------------------------------------------------------------- 117. This distinction implies a considerable difference with the Nicaragua v. United States of America case, where the objective of the United States was simply limited to the overthrow of the power in place, while in the present case, there was a perfect similarity of views between the Respondent and the Republika Srpska on the Greater Serbia project bringing together all the Serbs under the authority of the two entities. There is no need in this case to prove an involvement resembling precise control over each operation carried out in the territory of Bosnia and Herzegovina; overall control leading to a decisive influence upon the policies implemented by the Republika Srpska is sufficient. In other words, exerting strict control over each act by the VRS was not particularly necessary, in view of the identical goals of the two partners. By financing and supplying the greater part of its budget and its armaments, by controlling a part of its officers, notably in the highest ranks of the Republika Srpska, and by propagating the idea of an ethnically clean Greater Serbia, the Respondent effectively exerted sufficient overall con-trol, even if that did not rule out a certain degree of autonomy or any differences of view or conflicts regarding the ways and means of achieving the common purpose. Assuming moreover that the Respondent’s armed forces did not participate directly in the acts of genocide established by the ICTY, they nevertheless supplied such massive and decisive multifaceted support that it incited the fighting forces of the Republika Srpska to continue their policy of ethnic cleansing, which there was every reason to believe would spill over into acts of genocide. C. The Responsibility of the Respondent for other Acts related to Genocide 118. According to Article III of the 1948 Genocide Convention, there are three types of punishable acts other than genocide proper, namely direct and public incitement to commit genocide, conspiracy to commit genocide, and complicity in genocide. 119. Incitement and conspiracy are two separate counts of responsibility for genocide. The FRY may be found responsible for these two offences without this calling into question its direct responsibility for the commission of genocide proper. For complicity, according to the ICTR, [p450] “an individual cannot thus be both the principal perpetrator of a particular act and the accomplice thereto. An act with which an accused is charged cannot, therefore, be characterized as both an act of genocide and an act of complicity in genocide.” [FN127] The FRY could not therefore be found to be an accomplice in genocide unless the Court considers that it is not the principal perpetrator. ------------------------------------------------------------------------------------------------- [FN127] ICTR, Prosecutor v. Alfred Musema, ICTR-96-13, Trial Chamber, Judgment and Sentence of 27 January 2000, para. 175. ------------------------------------------------------------------------------------------------- 120. Concerning direct and public incitement to commit genocide (Arts. III (c) and IX), the Court has had occasion to affirm the ban on incitement to other violations of international law than genocide. In its Judgment in the Nicaragua v. United States of America case the Court considered that, “from the general principles of humanitarian law to which the [1949 Geneva] Conventions merely give specific expression”, the United States was “under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation” (I.C.J. Reports 1986, p. 114, para. 220) of their fundamental provisions. 121. The FRY played a role in the incitement of violence of the most extreme kind by propagating the ideology of a Greater Serbia, by calling for the creation of an “all-Serb State” and by laying the ground for ethnic cleansing with the potential to spill over into acts of genocide. In its Tadic Judgment of 7 May 1997, the ICTY Trial Chamber observes the facts establishing this direct and public incitement. [FN128] The propaganda campaign for a Greater Serbia was accompanied by another movement beginning in 1989, with the celebration of the 600th anniversary of the Battle of Kosovo. The Serb-dominated media stated that the Serbs had been left to their fate at the time of the invasion of the Ottoman Muslim Empire. The dangers associated with Muslim fundamentalism within the former SFRY were also emphasized. The line went that if the SFRY were to be dissolved and the Serbs to find themselves in a minority, their entire existence might be imperilled and, in that eventuality, the only alternative would be to wage an all-out war or otherwise, as in the past, end up in a concentration camp. In the early 1990s, gatherings with the participation of Serb leaders were organized to defend and propagate those ideas. In 1992, Radoslav Brdjanin, who presided over the crisis cell in the autonomous Serb region of Banja Luka, stated publicly that 2 per cent was the maximum proportion of non-Serbs that could be tolerated in the region. [FN129] He advocated getting rid of the non-Serbs in three stages: (1) by the creation of intolerable living conditions for non-Serbs; (2) by deportation and banishment; (3) by liquidation of the remaining non-Serbs. Serb newspapers and Belgrade television denounced the threat of non-Serb extremists and spread the idea that they were arming in order [p451] to exterminate the Serbs. That propaganda campaign continued until 1993. ------------------------------------------------------------------------------------------------- [FN128] See Tadic, Appeals Chamber, Judgment of 15 July, paras. 30-35. [FN129] Statement reported by the ICTY in Tadic, IT-94-1-T, Judgment of 7 May 1997, para. 89. ------------------------------------------------------------------------------------------------- 122. As regards conspiracy, the point is to determine that there existed a concerted plan to commit war crimes, crimes against humanity and possibly acts of genocide. Such a plan follows from all the conduct of the Respondent, which, after directly and publicly inciting ethnic cleansing, prepared the necessary conditions for its perpetration. That State thus weeded out from the Yugoslav army all non-Serb elements in order to guarantee its loyalty. It made good the numbers with “volunteers” in their place. While organizing the withdrawal of the JNA under international pressure, it was planned to arm the Bosnian Serbs and to disarm the non-Serbs. It was also planned to incorporate the Serbs of Bosnia and their parallel institutions unofficially into the federal structure, so as to be able to control them and continue providing them with the necessary arms and budget. These precise and meticulous preparations, and the close co-operation between the Republika Srpska and the Belgrade authorities which they involved, attest to the existence of a conspiracy to perpetrate the utmost violence, with the serious risk of sliding down the slope towards genocide. What is important in this case is the existence of a “deliberate act” and that it “must directly affect the commission of the crime itself”. [FN130] ------------------------------------------------------------------------------------------------- [FN130] Tadic, IT-94-1-T, Judgment of 7 May 1997, para. 678. ------------------------------------------------------------------------------------------------- D. Aid or Assistance Provided by the Respondent in the Commission of Genocide 123. The opinion expressed here is that the Respondent was one of the perpetrators of the crimes committed in the territory of Bosnia and Herzegovina, and complicity is therefore ruled out, since logically one cannot be the main perpetrator of and the accomplice to a criminal act at one and the same time. As was recalled by the International Criminal Tribunal for Rwanda and as we noted in paragraph 119: “An act with which an accused is charged cannot, therefore, be characterized as both an act of genocide and an act of complicity in genocide.” [FN131] However, this hypothesis warrants examination, since the Court has not upheld the crime of complicity, whereas, in my opinion, there was sufficient evidence to arrive at a different conclusion. ------------------------------------------------------------------------------------------------- [FN131] 131 ICTR, Prosecutor v. A. Musema, op. cit., para. 220. ------------------------------------------------------------------------------------------------- 124. The International Law Commission’s Articles on the International Responsibility of the State refer to aid or assistance in the commission of an internationally wrongful act in Article 16, which reads: “A State which aids or assists another State in the commission of [p452] an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.” On the face of it, this provision concerning relations between States does not seem directly applicable in the present case, inasmuch as the aid in question concerned an entity, the Republika Srpska, which has no international status. But as the Court rightly asserted, while this provision is not directly relevant, it “sees no reason to make any distinction of substance between ‘complicity in genocide’, within the meaning of Article III, paragraph (e), of the Convention, and the ‘aid or assistance’ of a State in the com-mission of a wrongful act by another State within the meaning of the aforementioned Article 16” (Judgment, para. 420). It thus follows that the State which provided aid or assistance will be responsible in so far as it has facilitated the commission of an internationally wrongful act. 125. Complicity presupposes a number of participants intervening in various ways in the accomplishment of a single criminal enterprise. The direct perpetrator is the person who commits the offence and the accomplice facilitates its commission with full knowledge and awareness of it. The accomplice can intervene after as well as before the criminal act. [FN132] It is commonly acknowledged in all national penal systems that complicity is inseparable from criminal intent; [FN133] it is a deliberate offence, in which the accomplice must consciously identify with the principal act. But must he also share the specific intent of the main perpetrator? That question has given rise to some debate, and the Genocide Convention is incomplete in this respect. We know that the ICTY has considered whether evidence needs to be brought that the accomplice himself possessed the intent to commit genocide; [FN134] it did not uphold such an interpretation and, to be an accomplice to the crime of genocide, it is sufficient to act knowingly, that is to say in the awareness that the unlawful acts constitute or might constitute genocide. [FN135] The Court makes reference to this issue in paragraph 421, but avoids addressing it on the grounds that it [p453] does not arise in the present case. However, it is regrettable that it does not rule clearly when all the underlying reasoning relies on the notion that knowledge is sufficient to result in complicity, as indeed is evident further on in paragraph 432 regarding complicity and violation of the obligation to prevent genocide; the Court should have been clearer in its findings and asserted that complicity does not require the accomplice to share the specific intent of the direct perpetrator of the crime of genocide, but that it is sufficient for him to be aware of that specific intent. It therefore suffices to determine that the FRY knew of the genocidal intent - even if it did not share it - of the criminals to whom it provided assistance, in order to establish its complicity in the crime of genocide. ------------------------------------------------------------------------------------------------- [FN132] N. Robinson, op. cit., p. 21. [FN133] Thus in the Zyklon B case, the judgment of the British Military Court of 8 March 1948 held that the provision of the gas had speeded up extermination in the camps and that the accused knew the use which would be made of it (cited by C. Laucci, “La Responsabilité pénale des détenteurs de l’autorité: étude de la jurisprudence récente des tribunaux pénaux internationaux”, L’Observatoire des Nations Unies, No. 6, 1999, pp. 151152). [FN134] Krstic case, Appeals Chamber, Judgment of 19 April 2004, paras. 140-142. [FN135] Ibid., paras. 143-144. ------------------------------------------------------------------------------------------------- 126. In the present case, the Respondent was aware of the circumstances which made the conduct of the assisted entity internationally wrongful, i.e. a policy of ethnic cleansing which was common knowledge and denounced by the highest international authorities, in particular the United Nations Security Council and General Assembly; it knew full well that its aid was being used to commit all manner of crimes, including acts of genocide which the Republika Srpska would have been unable to commit on such a scale, as in Srebrenica, without the support of the FRY. This is moreover the conclusion at which the Court arrives on three occasions: first, when it notes that: “had [the Respondent] withdrawn that support, this would have greatly constrained the options that were available to the Republika Srpska authorities” (Judgment, para. 241); again, in reference to “the very important support given by the Respondent to the Republika Srpska, without which it could not have ‘conduct[ed] its crucial or most significant military and paramilitary activities’” (Judgment, para. 394); and finally, and most importantly, in declaring the following with respect to Srebrenica: “Undoubtedly, the quite substantial aid of a political, military and financial nature provided by the FRY to the Republika Srpska and the VRS, beginning long before the tragic events of Srebrenica, continued during those events. There is thus little doubt that the atrocities in Srebrenica were committed, at least in part, with the resources which the perpetrators of those acts possessed as a result of the general policy of aid and assistance pursued towards them by the FRY.” (Judgment, para. 422.) 127. After such an acknowledgment, it would have been logical for the Court to draw all the conclusions from it and decide on the complicity of the Respondent. That was not, however, the finding reached by the majority. In other words, the conditions for establishing the material element of aiding and assisting the crime of genocide were present, but the Court did not accept them, dismissing the responsibility of the Respondent on the grounds that the intentional element was lacking and, more particularly, because [p454] “it is not established beyond any doubt in the argument between the Parties whether the authorities of the FRY supplied - and continued to supply - the VRS leaders who decided upon and carried out those acts of genocide with their aid and assistance, at a time when those authorities were clearly aware that genocide was about to take place or was under way” (Judgment, para. 422). The Court returns to the lack of evidence of intent in the following paragraph, as if to persuade itself of the argument, stating: “[i]t has therefore not been conclusively established that, at the crucial time, the FRY supplied aid to the perpetrators of the genocide in full awareness that the aid supplied would be used to commit genocide” (Judgment, para. 423). However, this statement and the conclusion which follows from it are no more evident or convincing; they raise a number of questions concerning various points. Must one have acted only “at the critical time”, as indicated in paragraph 423, to be an accomplice to genocide? Is it really possible to massacre over 7,000 persons in an improvised or spontaneous way, without some degree of advance preparation and planning? In view of the closeness and regularity of the contacts between the authorities of the FRY and those of the Republika Srpska - especially the human contacts through high-ranking officers of the FRY’s army serving in the VRS - can we really regard as indisputable the lack of knowledge of such a project on the part of the authorities of the FRY? Among other evidence accumulated regarding the knowledge of the respondent State’s leadership of the intent of the perpetrators of the massacres, does not the testimony of General Wesley Clark, quoted and discussed in paragraph 437, constitute a sufficiently convincing element indicating that President Miloševic was very aware of what was about to happen in Srebrenica? And indeed the Court recognizes that he was, since it is on that basis that it establishes the violation of the obligation of prevention provided for by the Convention. Without such knowledge, the violation of that obligation could not be established. 128. It is precisely on this point concerning the element of awareness or knowledge of the crimes committed that one cannot help noting a certain incoherence in or contradiction between the Court’s two findings. On the one hand, the Court refuses to acknowledge the existence of complicity on the part of the Respondent’s authorities because they were not informed or, more precisely, were not “clearly aware that genocide was about to take place or was under way” (Judgment, para. 422); on the other, it holds nevertheless that those organs breached their obligation to prevent genocide because the Belgrade authorities “could hardly have been unaware of the serious risk” which existed of the perpetration of genocide (Judgment, para. 436). Or even more precisely: “[g]iven all the international concern about what looked likely to happen at Srebrenica, given Miloševic’s own observations to Mladic, which made it clear that the dangers were known and that these dangers [p455] seemed to be of an order that could suggest intent to commit genocide, unless brought under control, it must have been clear that there was a serious risk of genocide in Srebrenica” (Judgment, para. 438). It is more than merely difficult to follow the Court’s reasoning; despite the remarkable subtlety employed in its complex analysis to explain the distinction between the awareness necessary in order to be an accomplice to genocide and the awareness necessary in order to prevent genocide, both from a logical standpoint and in view of the factual circumstances obtaining in this case, it is hard to comprehend that distinction and, therefore, the difference in the findings concerning the implication of the Respondent. In other words, since a clear awareness of the serious danger of genocide existed within the organs of the Respondent, the first obligation for them was to prevent acts of genocide; they then had the further obligation of not continuing to provide the future perpetrators of the criminal acts with the aid or assistance enabling or making it easier for them to commit those acts. The Court should thus have found not only that there had been a breach of the obligation to prevent, but also that there had been complicity, especially as the Respondent’s aid and assistance to Republika Srpska continued even after the genocide in Srebrenica, as was found by the ICTY and as confirmed by the Court itself in the present Judgment. 129. The operative part of the Judgment concerns Serbia, since it must address the State which is the Respondent on the date when the Court delivers its Judgment. A judgment cannot be addressed to a fictitious State which has ceased to exist; it is thus Serbia which is addressed in the operative part as the continuator State of Serbia and Montenegro, just as Serbia and Montenegro was the continuator of the FRY. The conduct analysed and judged in the present case is that of the FRY and of Serbia and Montenegro, as the Court indicates in the preamble by referring to one or other of these States depending on the period concerned, in order to identify clearly the perpetrators of the acts and consequently attribute the resulting responsibility to Serbia as the continuator of the two previous States. It should also be noted that the Court expressly refers, in paragraph 78, to the Republic of Montenegro, which became independent on 3 June 2006, after the end of the public hearings, and which informed the Court by a letter dated 29 November 2006 that the new State did not intend to adopt the capacity of Respondent in the case at hand. It is important to cite that paragraph of the Judgment of the Court: “That being said, it has to be borne in mind that any responsibility for past events determined in the present Judgment involved at the relevant time the State of Serbia and Montenegro.” This paragraph recalls the responsibilities incumbent upon the Republic of Montenegro, and I interpret this reminder as meaning that, even if [p456] the operative part is not directly addressed to the Republic of Montenegro, it is nonetheless responsible as a successor State, in accordance with the rules of international law governing the international responsibility of States, State succession with respect to treaties and State succession with respect to property, archives and State debts. I regret that the Court was not more precise in its reminder of the obligations of the Republic of Montenegro, given the circumstances of the present case. The Republic of Montenegro is a party to the Genocide Convention, which requires it to comply with all the resulting obligations, including that of prosecuting and punishing the perpetrators of acts of genocide. Moreover, it has succeeded to the Dayton Agreements, which commit it to full co-operation in achieving the goals established by those agreements. (Signed) Ahmed MAHIOU. [p457] SEPARATE OPINION OF JUDGE AD HOC KRECA [p459] PART I. JURISDICTIONAL ISSUES I. General Considerations in Respect of the Res Judicata Rule 1. The expression res judicata has more than one meaning. It is used to mean an issue decided by a court of law; a judgment which cannot be refuted by ordinary legal vehicles; and, also, a decision which is immutable and irrevocable. The broad use of the expression res judicata could be attributed to a certain confusion about the very quality of a judicial decision and its effects both subjective and objective. Occasionally and especially as regards some kinds of judgments, account is not taken of the difference existing between irrefutability and irrevocability. If, bearing in mind the absence of ordinary legal vehicles provided by the Statute and the Rules of Court to a dissatisfied party for overturning the judgment, it could be said that in general the judgments of the Court are irrefutable. It could not however be said that they are irrevocable as well, owing not only to the rule on revision embodied in Article 61 of the Statute, as an extraordinary legal vehicle, but also due to some other judicial vehicles existing in the law of the Court, such as the principle compétence de la compétence in regard to jurisdictional issues as well as non-preliminary objections to the jurisdiction of the Court. 2. Two components may be discerned in the substance of res judicata as provided in the Statute of the Court: (i) procedural, which implies that: “The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party” (Art. 60); and (ii) substantive, according to which: “The decision of the Court has no binding force except between the parties and in respect of that particular case.” (Art. 59). 3. The primary effect of res judicata in the procedural sense is claim preclusion - meaning that a future lawsuit on the same cause of action is precluded (non bis in idem), whereas the effect of res judicata in the substantive sense is mainly related to the legal validity of the Court’s decision as an individualization of objective law in the concrete matter - pro veritate accipitur - and, also, to the exclusion of the application of the principle of stare decisis. 4. Two components of res judicata - procedural and substantive - do not necessarily go hand in hand in each particular case. Each decision of the Court - be it judgment or order - is binding upon the parties, although not in an identical way, but such characteristic of the decision of the Court is not necessarily followed by its finality. [p460] The relationship between these two components of res judicata is not static and a priori defined because it reflects the balancing power of the considerations underlying the procedural and substantive aspects of res judicata rule, respectively. The considerations underlying the substantive aspect of res judicata essentially protect the authority of the Court as a court of law and the legitimacy of its decisions. Hence, it is possible to say that the binding force of the Court’s decisions derives from the very nature of the judicial function irrespective of the nature and content of a Court’s decision. As the Court established in the Northern Cameroons case (I.C.J. Reports 1963, p. 38), the effect of res judicata extends also to the judgment of the Court establishing the impossibility of changing the created legal situation. Underlying res judicata in the procedural sense are, in fact, considerations of legal security and predictability combined with economy of the judicial process. 5. The distinction between characteristic of a judicial decision and its effect derives from contrasting res judicata in its abstract normative meaning and its application within the body of law regulating the judicial activity of the Court, i.e. its legal meaning in casu. Although it is a rule of fundamental importance, forming part of the legal system of all civilized nations, res judicata is certainly not a fetish of, or seen as a deus ex machina by, courts of law, including the International Court of Justice. The res judicata rule operates within the law that the Court applies in parallel with other rules having an objective nature. In other words, the res judicata rule, just like other fundamental rules governing judicial activity of the Court, is only a part, however important it may be, of the normative milieu in which the Court operates and which, as a whole, determines the effect of a Court’s decision. A possible effect that the other rules of an objective nature have upon res judicata might be summarized as follows: “Finality itself . . . is rather a plastic term that need not prohibit re-examination.” [FN1] It seems clear that revision in accordance with the conditions specified in Article 61 of the Statute “constitutes direct exception to the principle res judicata, affecting the validity of a final judgment”. [FN2] It is equally true that the operation of the principle of compétence de la compétence and non-preliminary objections to the affirmed jurisdiction of the Court may result in a reversal of one sort of Court judgment, i.e., judgments on preliminary objections. ------------------------------------------------------------------------------------------------- [FN1] M. Reisman, Nullity and Revision, 1971, p. 341. [FN2] B. Cheng, General Principles of Law as Applied by International Courts and Tribunals, 1953, p. 372. [p461] ------------------------------------------------------------------------------------------------- 6. In that regard, none of the legal vehicles designed to challenge or capable of use to challenge a matter already decided derogates the existence of the res judicata rule as such, for they are based on the authority of the law which the Court applies in its totality and are made operational in the form of a binding decision by which the previous decision of the Court is repudiated - judicum posterior derogat priori. As the effects of res judicata attach only to decisions brought lege artis, in accordance with the rules, procedural and substantive, of the law applied by the Court, it could be said that the exceptions to the finality of a Court judgment constitute a part of the substance of res judicata. Consequently, finality of the Court’s judgments within the law applied by the Court may be relative or absolute. Only for the latter can it be said that finality is tantamount to res judicata in terms of irrevocability. The judgment (sententia) and res judicata in the sense of a final and irrevocable decision of the Court obviously are not identical notions. The judgment as such is res judicans while res judicata est causa sinae finem controversiae accepit. As a judicial act, every judgment of a court of law has a potential of res judicata in terms of irrevocability which may be materialized or not, depending on the outcome of procedures and weapons designed to challenge the decision of the court. So, the intrinsic quality of res judicata is, in fact, the end point in the development of the authority which is inherent in every judgment, the point in which jugement passe en force de la chose jugée, judgment becomes enforceable. II. Res Judicata as Regards Jurisdictional Decisions 7. The full effect of the res judicata rule is in principle attached to “a final decision of an international tribunal” (Permanent Court of Arbitration (Trail Smelter case), Reports of International Arbitral Awards (RIAA), Vol. III, pp. 1950-1951). In his separate opinion in the Fisheries Jurisdiction case, Judge Waldock stated, “[u]nder Article 60 of the Statute the Judgment is ‘final and without appeal’. It thus constitutes a final disposal of the case brought before the Court by the Application of 14 April 1972” (I.C.J. Reports 1974, p. 125, para. 46). [FN3] ------------------------------------------------------------------------------------------------- [FN3] A. V. Freeman, International Responsibility of States for Denial of Justice, 1938, p. 975; B. Cheng, op. cit., 1953, p. 337; Schwarzenberger, International Law, I, 1949, pp. 454-455. ------------------------------------------------------------------------------------------------- However, it does not follow a contrario that the Court’s judgments on preliminary objections are excluded from the scope of Articles 59 [p462] and 60 of the Statute of the Court. Such an interpretation would obviously run counter to the general determination made in these Articles. 8. It appears that the effects of judgments on preliminary objections, or at least some types of judgment on preliminary objections, with respect to both their binding force and finality, are of a specific character distinguishable to some extent from the effects of judgments on the merits of the case. The meaning of the characterization “final” in regard to a judgment on a preliminary objection lies solely in the fact that, after it is pronounced, all the parties are precluded from raising any preliminary objections whatsoever leading to revival or restitution of the preliminary objection proceeding, as provided for in Article 79 of the Rules of Court. But a preliminary objection as such is not the only legal vehicle in the body of law of the Court designed to challenge a decision of the Court. Therefore, it is difficult to say that the judgment on the preliminary objections raised by a party to a dispute before the Court puts a final end to the issue of jurisdiction, so that the issue of jurisdiction can never be raised. In the jurisprudence of the Court, and on the basis of Article 79, paragraph 1, of the Rules, the notion of non-preliminary objection to the jurisdiction of the Court has developed, which proves, by itself, that the notion of objection to jurisdiction is broader than the notion of preliminary objection. The fundamental principle compétence de la compétence may also give rise to reconsideration of the jurisdictional decision taken. As long as it is the functus officio in the case, the Court, as a court of law, has the inherent power to re-open and reconsider any issue of law and fact decided. That power would be devoid of substance if not accompanied by the power of the Court to reverse its earlier jurisdictional decision under special circumstances. 9. The uncritical ascribing of immutability to every judgment is fetishist and may find a model only in some long-abandoned decisions under Langobardic law. [FN4] Since the Roman Law (in the Roman Law the character of res judicata could be given only to final decisions in meritum), [FN5] the solution has been adopted that the authority of res judicata belongs, as a rule, only to decision on the merits of a case. For instance, in French law, decisions on incidental questions may not acquire the autorité de la chose jugée, unless that is indispensable for the interpretation of the dis [p463] positifs of the decision in meritum or they are its “soutien nécessaire”. [FN6] The Italian judiciary also tends to perceive res judicata to cover the solution of the dispute which the parties submitted to the court.[FN7] Paragraph 322 of the German Zivilprozessrechnung (Materielle Rechtskraft) states that only those decisions which on the demand (Anspruch) which is stipulated in the accusation or counter-accusation may be effective. ------------------------------------------------------------------------------------------------- [FN4] Capitula 370 Edictum Langobardorum stipulated that an adjudicated case semper in eadem deliberatione debeant permanere, although there existed the possibility of its rejection by a higher instance - Pugliese, Giudicato civile, Enciclopedia di diritto XVI, 1969, p. 158. [FN5] Pugliese, op. cit., p. 752; Kaser, Das römische Zivilprozessrecht, MCMLXVI, p. 504. [FN6] Perrot, Chose jugée, Répertoire de procédure civile et commerciale, 1955, 1, Nos. 8, 45, 78-87; Vincent, Procédure civile, 1978, p. 98, No. 76. [FN7] Pugliese, op. cit., p. 834. ------------------------------------------------------------------------------------------------- In English law as well, res judicata indicates the final judicial decision adopted by the judicial tribunal competent for the causa, or the matter in litigation. [FN8] Also, the existence of the competent jurisdiction is considered a condition of validity of every res judicata. [FN9] ------------------------------------------------------------------------------------------------- [FN8] Bower, Turner and Handley, The Doctrine of Res Judicata, 1969, II, p. 1; Walker and Walker, The English Legal System, 1885, Vol. 6, p. 589. [FN9] Bower, Turner and Handley, op. cit.,p.92. ------------------------------------------------------------------------------------------------- Therefore, the view that the application of res judicata is objectively limited to the issues decided by the final judicial decision is dominant in the law of civilized nations. 10. In that regard three types of judgments on preliminary objections may be distinguished: - judgments by which a preliminary objection, irrespective of its nature, is accepted and the dispute ipso facto ended; - judgments by which the objection is rejected and the Court is declared competent to entertain the merits of the case; and -judgments by which a preliminary objection raised is determined to be an objection which does not possess an exclusively preliminary character. The effects of res judicata such as those characterizing a judgment on the merits of a case are possessed only by those judgments on preliminary objections by which an objection is accepted. In contrast to the other two remaining jurisdictional decisions, which are both constituent parts of the pending case, this kind of jurisdictional decision puts an end to a case, thus assuming the full effects of the res judicata rule attaching to a final judgment in the case. There are certain differences as regards res judicata effects between the two remaining kinds of judgments on preliminary objections, on the one hand, and judgments on the merits, on the other. 11. The difference in finality between jurisdictional decisions, on the one hand, and decisions on the merits, on the other, is, in principle, quantitative rather than qualitative in nature. The finality of jurisdictional [p464] decisions is more relative owing to a larger number of legal weapons by which they can be challenged. It is reflected in the fact that a jurisdictional decision may be challenged not only through revision proceeding under Article 61 of the Statute but also in the further course of the proceedings and by a non-preliminary objection, i.e., by an objection which is raised to the Court’s jurisdiction [FN10] after the preliminary objection procedure has been completed by the delivery of the judgment. ------------------------------------------------------------------------------------------------- [FN10] The word “jurisdiction” is used in its generic sense comprising both general, i.e., locus standi in judicio, and special jurisdiction. ------------------------------------------------------------------------------------------------- In the practice of international courts, in particular that of the International Court of Justice, this difference assumes qualitative proportions. Reversal of judgments on the merits, as opposed to jurisdictional decisions, is unknown in the jurisprudence of the International Court of Justice, unlike that of arbitration courts. [FN11] ------------------------------------------------------------------------------------------------- [FN11] See J. L. Simpson and M. Fox, International Arbitration - Law and Practice, 1959, pp. 250 et seq. ------------------------------------------------------------------------------------------------- 12. The question as to whether the tribunal is irrevocably bound by its preliminary objection judgment was raised for the first time in the Tiedemann case (1926) before the Polish-German Mixed Arbitral Tribunal. Sedes materiae of the matter, the Tribunal explained succinctly and convincingly: “the Tribunal considers that, in the interests of legal security, it is important that a judgment, once rendered, should in principle be held to be final. However, the question takes on a special complexion when the preliminary judgment rendered is a judgment upholding the Tribunal’s jurisdiction and the latter finds subsequently, but prior to the judgment on the merits, that in fact it lacks jurisdiction. In such a case, if it were obliged to regard itself as being bound by its first decision, it would be required to rule on a matter which it nevertheless acknowledges to stand outside its jurisdiction. And when - as in the instant case - it has in the meantime ruled that it has no jurisdiction in cases of the same nature, it would totally contradict itself by nevertheless ruling on the merits, and it would expose itself to the risk that the respondent State might take advantage of the Tribunal’s own acknowledgment of its lack of jurisdiction, in order to refuse to execute its judgment . . . In other words, in order to remain faithful to the res judicata principle, it would have to commit a manifest abuse of authority.” [FN12] ------------------------------------------------------------------------------------------------- [FN12] Von Tiedemann v. Polish State, Rec. TAM, t. VI, pp. 997-1003; see also CR 2006/44, Varady, translation. ------------------------------------------------------------------------------------------------- The principle that a court of law hearing a case which has proceeded beyond a judgment on preliminary objections is not irrevocably bound [p465] by that judgment has also been confirmed by the jurisprudence of the Court. 13. In the Nottebohm case (Preliminary Objections) the Court rejected by its Judgment of 18 November 1953 Guatemala’s preliminary objection to its jurisdiction and resumed proceedings on the Merits (I.C.J. Reports 1953, p. 124). Guatemala, however, raised a number of objections to admissibility in its Counter-Memorial, in its Reply and in the course of the oral proceedings on the merits but treated them as subsidiary to the subject of the dispute. In its Judgment of 6 April 1955, the Court accepted one of the objections, which related to the admissibility of Liechtenstein’s claim given that at the time of naturalization no “genuine link” had existed between Nottebohm and Liechtenstein (I.C.J. Reports 1955, pp. 4-65). The Nottebohm case can be taken as an example of reversal of the preliminary objection judgment upon a non-preliminary objection raised by the Respondent. 14. On the other hand, the South West Africa cases (Second Phase) illustrate the pattern of reversal of the judgment on preliminary objections by action of the Court proprio motu. In the preliminary objections phase (I.C.J. Reports 1962, p. 319), the Court rejected four South African objections, amongst others the objection concerning the standing (locus standi) of the Applicant as well as its interests. South Africa pointed out, inter alia, that: “Secondly, neither the Government of Ethiopia nor the Government of Liberia is ‘another Member of the League of Nations’, as required for locus standi by Article 7 of the Mandate for South West Africa; Thirdly,... moreparticularlyinthatnomaterialinterestsof the Governments of Ethiopia and/or Liberia . . . are involved therein or affected thereby” (ibid., p. 327). In the merits phase the Court returned to the determination made in its 1962 Judgment and found that, in fact, the Applicants did not have standing in the proceedings (I.C.J. Reports 1966, pp. 36-38). Namely, in its Judgment on Preliminary Objections of 21 December 1962, the Court established inter alia that: “For the manifest scope and purport of the provisions of this Article indicate that the Members of the League were understood to have a legal right or interest in the observance by the Mandatory of its obligations both toward the inhabitants of the Mandated Territory, and toward the League of Nations and its Members”, and that: “Protection of the material interests of the Members or their nationals is of course included within its compass, but the well-being [p466] and development of the inhabitants of the Mandated territory are not less important”(South West-Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, pp. 343-344; emphasis added). In essence, the Court explained the reversal of its previous finding by describing the nature of the decision on preliminary objection. The Court stated inter alia: “As regards the issue of preclusion, the Court finds it unnecessary to pronounce on various issues which have been raised in this connection, such as whether a decision on preliminary objection constitutes a res judicata in the proper sense of that term, whether it ranks as a ‘decision’ for the purposes of Article 59 of the Court’s Statute, or as ‘final’ within the meaning of Article 60. The essential point is that a decision on a preliminary objection can never be preclusive of a matter appertaining to the merits, whether or not it has in fact been dealt with in connexion with the preliminary objection.” (I.C.J. Reports 1966, pp. 36-37, para. 59; emphasis added.) However, reasoning further about the preclusive effect of the 1962 Judgment, the Court characterized - albeit indirectly - jurisdictional decisions, finding that: “Since decisions of an interlocutory character cannot pre-judge questions of merits, there can be no contradiction between a decision allowing that the Applicants had the capacity to invoke the jurisdic-tional clause . . . and a decision that the Applicants have not established the legal basis of their claim on the merits.” (I.C.J. Reports 1966, p. 38, para. 61; emphasis added.) In the merits phase the Court returned to the determination made in its 1962 Judgment and found that, in fact, the Applicants did not have standing in the proceedings (I.C.J. Reports 1966, pp. 36-38). 15. The legal basis for reconsideration of a preliminary objection judgment and, possibly, a reversal of an affirmative finding on jurisdiction lies in the inherent power of the Court to determine its own jurisdiction (the principle of compétence de la compétence), in both its narrow and broad meanings. In the narrow sense, as expressed in Article 36, paragraph 6 of the Statute, the Court takes jurisdictional decisions in cases of disputes between the parties as regards its jurisdiction. Jurisdictional decisions of the Court under Article 36, paragraph 6, may be of either of two types: judgments on preliminary objection raised in accordance with Article 79 of the Rules of Court; and decisions taken upon non-preliminary objection. Characteristic of decisions on non-preliminary objections is that they are taken in phases of the proceedings other than the preliminary objection stage, generally in the phase which should be on the merits and which is determined in the practice of the Court to be a Judgment on jurisdiction (Nottebohm case) or simply a Judgment in the Second Phase (South West Africa cases). The real meaning of the last expression is in fact the second [p467] jurisdictional phase, given that the judgment upon preliminary objection was adopted previously. However, as commonly observed, the Court is bound to remain attentive to the issue of jurisdiction independently from the actions of the parties in the litigation. The Court achieves this by application of the principle compétence de la compétence in its wider form (Nottebohm case, I.C.J. Reports 1953, p. 120) as the basis for proprio motu action of the Court. “Remain attentive” as such, without proper action of the Court, has no practical effect on the fundamental question - whether the Court has jurisdiction in casu. The Court, bearing in mind ex officio its competence from the moment the proceedings are begun until their end, undertakes various decisions in that regard. Specifically, the Court’s compétence de la compétence: “is not limited to verifying in each case whether the Court can deal with the merits . . . By extending the scope of the power in issue [compétence de la compétence] to all matters within the incidental jurisdiction of the Court, the Court has established this power as the most pre-preliminary function the Court undertakes.” [FN13] ------------------------------------------------------------------------------------------------- [FN13] Shihata, op. cit., pp. 41-42; emphasis added. ------------------------------------------------------------------------------------------------- The very seisin of the Court as a first step of a procedural nature implies the operation of the principle compétence de la compétence by proprio motu action of the Court. The need to resort to the principle compétence de la compétence results directly from the fact that the seisin of the Court is not the automatic consequence of the proper actions of the parties to a dispute, and the seisin of the Court is not a pure fact but a judicial act linked to the jurisdiction of the Court (see Nottebohm, Preliminary Objections, Judgment, I.C.J. Reports 1953, p. 122; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, p. 23, para. 43). Without the operation of the principle compétence de la compétence as a principle of general international law, it would be legally impossible to establish the competence of the Court to indicate provisional measures, for the objections to the Court’s jurisdiction, pursuant to Article 79 of the Rules, may be submitted by the Respondent within the time-limit fixed for the delivery of the Counter-Memorial and by a party other than the Respondent within the time-limit fixed for the delivery of the first pleading. The operation of the principle in this case results in the judicial presumption on proper jurisdiction of the Court in the form of “prima facie jurisdiction” (Legality of Use of Force, Preliminary Objections, Judgment, I.C.J. Reports 2004; separate opinion of Judge Krecua, para. 12; emphasis added). 16. The special position of a judgment on preliminary objection exists [p468] in respect of both aspects of the res judicata rule - its binding force and finality. A perception of distinct relativity of a jurisdictional decision of the Court pervades the body of law regulating the Court’s activity. The rules regarding preliminary objections are grouped in Subsection 2 of Section D of the Rules of Court, entitled “Incidental Proceedings”. Such placement of the rules on preliminary objections suggests, as the Court stated in the South West Africa cases (Second Phase) (I.C.J. Reports 1966, p. 38, para. 61), that judgment on a preliminary objection is “of an interlocutory character”, which implies a provisional, rather than final, character. Furthermore, Article 79, paragraph 1, of the Rules of Court, providing that “[a]ny objection . . . to the jurisdiction of the Court or to the admissibility . . . or other objection the decision upon which is requested before any further proceedings on the merits” (emphasis added), per se expresses the relative finality of a judgment on preliminary objections. Preliminary objections as such do not, however, exhaust objections to the jurisdiction of the Court. As early as the 1980s, the jurisprudence of the Court, supported by State practice, developed to the effect that the formal preliminary objection procedure is not exhaustive of the matter, [FN14] as well as that non-preliminary objections to jurisdiction are also capable of reversing a judgment on preliminary objections as demonstrated in the Nottebohm case. Non-preliminary objections to the jurisdiction of the Court give rise to application of the principle of compétence de la compétence understood, as I have noted before (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, paras. 43-50), in the narrow sense. ------------------------------------------------------------------------------------------------- [FN14] See Shabtai Rosenne, «The Reconceptualization of Objections in the ICJ», Communicazioni e studi, volume quattordicesimo, 1975, pp. 735-761. ------------------------------------------------------------------------------------------------- Finally, the principle of compétence de la compétence understood in a general sense can be seen in the Resolution Concerning the Internal Judicial Practice of the Court in its provision stating that “the Court may proceed to entertain the merits of the case or, if that stage has already been reached, on the global question of whether, finally, the Court is competent or the claim admissible” (Art. 8 (ii) (b); emphasis added). It seems clear that the “global question” is “one which would normally arise only after all the previous questions and the merits have been pleaded (that is to say, the substance of any particular phase [has] thus been decided”). [FN15] ------------------------------------------------------------------------------------------------- [FN15] Shabtai Rosenne, Procedure in the International Court. A Commentary on the 1978 Rules of the International Court of Justice, 1983, p. 232; emphasis added. ------------------------------------------------------------------------------------------------- 17. With regard to the binding force of a judgment on preliminary objections, it seems clear that it does not create legal obligations stricto [p469] sensu which parties in the proceedings are required to comply with. The party that raised a preliminary objection rejected by the Court does not suffer any legal consequences if, for instance, it decides not to participate in the proceedings for which the Court declared itself competent. An affirmative judgment in the preliminary objection procedure creates for that party a processual burden rather than a legal duty stricto sensu. Moreover, the Applicant has no legal obligation to proceed to plead the claim either. While an affirmative jurisdictional decision creates a processual burden for the Respondent, vis-à-vis the Applicant it constitutes a pure processual entitlement which the Applicant uses with absolute discretion (discretio legalis) without suffering any sanctions in proceedings of failure to comply with the letter of affirmative jurisdictional decisions. In fact, an affirmative judgment in the preliminary objections phase creates a duty for the Court only to proceed to the merits phase, but judicial action by the Court in that regard is dependent upon proper actions by the parties to a case. In contrast to a jurisdictional judgment, a judgment on the merits of a case possesses binding effect in terms of creating legal duties for the parties, so that “neither party can by unilateral means free itself from its obligation under international law to carry out the judgment in good faith”. [FN16] ------------------------------------------------------------------------------------------------- [FN16] Société Commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78, p. 176. ------------------------------------------------------------------------------------------------- 18. The more relative character of jurisdictional decisions of the Court as compared with the finality of a judgment on the merits of the case is justified on a number of grounds. Jurisdictional issues are not, as a rule, core issues of cases before the Court, nor are they the raison d’être of recourse to the Court by the parties to a dispute. Cases, such as the Appeal Relating to the Jurisdiction of the ICAO Council (I.C.J. Reports 1972), in which the Court acts as a court of appeal, are the only exceptions. The parties to a dispute turn to the Court to protect a subjective right or interest in the sense of substantive law, not because of the issue of jurisdiction as such. An affirmative judgment on jurisdictional issues establishes only the necessary prerequisite for resolving the main issue and it concerns substantive law in terms of conferring or imposing upon the parties a legal right or obligation of a positive or negative nature. In this sense, a judgment on jurisdictional issues is of “a purely declaratory nature and it can never create a right i.e., bestow on the Court itself a jurisdiction which is not supported by applicable rules of law either general or particular” (Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925, [p470] P.C.I.J., Series A, No. 6, dissenting opinion of Judge Rostworowski, p. 32). In other words, a judgment on jurisdictional issues is adjective rather than substantive in its nature and, consequently, in its effects as well. It does not create a new legal situation in terms of substantive law nor gives an order to perform an act as it does not state how the law disputed between the parties is to be applied. (For classification of international judgments, see Encyclopedia of Public International Law, III, 1997, pp. 33-34.) The reversal by a court of law acting within its judicial prerogatives of the jurisdictional judgment in a pending case does not substantially, if at all, affect stability and predictability as the rationale of finality of the judgment, as advocated by the majority (Judgment, para. 116). This is because the subject matter here is not substantive rights and obligations of the parties. As an affirmative jurisdictional decision merely confers entitlement to have a claim entertained and decided by the court, it is hard to say that its reversal may result in disturbing jural relations under substantive law. The only disturbance that can be spoken of in case of a reversal of an affirmative jurisdictional decision is the disturbance in the processual relationship established by the jurisdictional decision, disturbance which is a matter of the subjective expectations of the parties to a dispute rather than a matter of public policy underlying the finality of the Court’s decision. On the contrary, if, after adopting a jurisdictional decision and before handing down its judgment on the merits, the Court found that its decision was erroneous for any reason, it would commit a manifest abuse of its power if it were to abide by the res judicata rule. Thus, rather than strengthening the res judicata rule, insistence on the finality of jurisdictional decisions in all circumstances would be to its detriment, paralyzing, and even nullifying, the activity of the Court as a court of law and justice, for, besides the intrinsic, constituent elements of the res judicata rule, there exists the fundamental extrinsic condition, the requisite validity of the Court’s decision in terms of substantive and procedural law. Finally, the more relative character of jurisdictional decisions, as regards finality, results or may result from the operation of the principle of compétence de la compétence. Specifically, the principle of compétence de la compétence operates exclusively in respect of jurisdictional issues. 19. In practical terms, the relativity of jurisdictional decisions, especially judgments on preliminary objections as a formal type of jurisdictional [p471] decision might result from balancing two considerations which differ by nature: (i) special circumstances forming an objective element deriving from legality which dictate reversal of the jurisdictional decision; and (ii) a subjective element, which implies the readiness of a court of law to address the matter. As regards this element, while somewhat pathetic, the warning is essentially correct that the “future of international adjudication, if not global peace, may paradoxically depend on the capacity of our supreme judicial organ to say mea culpa”. [FN17] ------------------------------------------------------------------------------------------------- [FN17] W. M. Reisman, “Revision of West South Africa Cases - An Analysis of the Grounds of Nullity in the Decision of 18 July 1966 and Methods of Revision”, The Virginia Journal of International Law, 1966, Vol. 7, No. 1, p. 4. ------------------------------------------------------------------------------------------------- III. Application of the Res Judicata Rule to the 1996 Judgment 20. The position taken by the majority on the application of res judicata to the 1996 Judgment of the Court suffers from two basic weaknesses: (a) a narrow and fetishist perception of the res judicata rule; (b) an erroneous assessment of the relevant conditions for its application in casu. As a consequence, it can be said that the perception of the res judicata rule as well as its application to the 1996 Judgment is completely misguided. 1. Perception of the res judicata rule 21. The dual, organically linked, structure of the res judicata rule as designed in Articles 59 and 60 of the Statute has been reduced by the majority to only one element - its binding force, although the crucial question in the case at hand is, in fact, the finality of the 1996 Judgment. In that regard, it is said that the “Statute . . . declares, in Article 60, the res judicata principle without exception” (Judgment, para. 119). The essence of the perception can be expressed as follows: “Article 59 of the Statute, notwithstanding its negative wording, has as its core the positive statement that the parties are bound by the decision of the Court in respect of the particular case. Article 60 of the Statute provides that the judgment is final and without appeal; Article 61 places close limits of time and substance on the ability of the parties to seek the revision of the judgment.” (Judgment, para. 115; emphasis added.) [p472] This reasoning seems to confuse the characteristics and effects of the res judicata rule. The binding force of the Court’s decision most certainly constitutes its substantive aspect. But, such a characteristic of the decision of the Court does not necessarily imply its finality, which is a matter of the procedural effects of the Court’s decision. In fact, each decision of the Court, being a proper expression of the judicial power, possesses binding force. In the formula auctoritas res judicata or l’autorité de la chose jugée, auctoritas does not per se mean finality, but rather the specific weight or credit of a judicial decision serving as a basis for its finality. Finality is never an attribute of the auctoritas itself. It may be the attribute of the auctoritas of the judgment after exhausting legal avenues, either regular or extraordinary, by which the judgment can be challenged. 22. According to the majority view, the 1996 Judgment is considered final, for “[t]he Statute provides for only one procedure in such an event: the procedure under Article 61, which offers the possibility for the revision of judgments . . .” (Judgment, para. 120), and, furthermore, “Subject only to this possibility of revision, the applicable principle is res judicata pro veritate habetur, that is to say that the findings of a judgment are, for the purposes of the case and between the parties, to be taken as correct, and may not be reopened on the basis of claims that doubt has been thrown on them by subsequent events.” (Judgment, para. 120; emphasis added.) Such a perception of the finality of a judgment seems too narrow, because it obviously does not take into account all legal vehicles available, either to the parties or to the Court itself, for the purpose of recon-sideration of the issue of jurisdiction. The law of the Court knows, in addition to revision under Article 61 of the Statute, two legal vehicles which are relevant in that regard. As stated above, these are the principle of compétence de la compétence in terms of both Article 36, paragraph 5, of the Statute and the rule of general international law (Nottebohm, Preliminary Objection, Judgment, I.C.J. Reports 1953, pp. 119-120) and non-preliminary objections to the jurisdiction of the Court. 23. The principle compétence de la compétence is “indispensably necessary to the discharge of any . . . duties” [FN18] of any judicial authority. Although, in contrast to jurisdictional objections raised by the parties, it [p473] is not specifically designed to challenge the jurisdiction of the Court, its operation, either proprio motu or upon an objection by a party, always affects, positively or negatively, the jurisdiction of the Court. ------------------------------------------------------------------------------------------------- [FN18] United States Commissioner Gore in the Betsey case (1797), J. B. Moore (ed.), International Adjudications, Ancient and Modern History and Documents, Modern Series, Vol. IV, p. 183. ------------------------------------------------------------------------------------------------- The power of the Court to determine whether it has jurisdiction, emanating from the principle of compétence de la compétence, is an inherent right and duty of the Court and it knows no bounds (Electricity Company of Sofia and Bulgaria, Judgment, 1939, P.C.I.J., Series A/B, No. 77, dissenting opinion of Judge Urrutia, pp. 102-103). The Court exercises its inherent power from beginning to end of the proceedings with a view to establishing whether it possesses jurisdiction or not in the particular case. In reality, the Court exercises its inherent power in two ways: (a) by taking a quiet, informal decision as to the existence of the processual requirements for jurisdiction through prima facie assessment, this being substantively a judicial presumption of jurisdiction; and (b) by adopting a formal decision on jurisdiction. In that sense, the Court’s power to determine whether it has jurisdiction in a given case seems absolute, considering that the Court, even if it declares that it has no jurisdiction in casu, exercises that inherent power. 24. Accordingly, the exercise of that power cannot be limited ratione temporis as long as the Court is functus officio in the case. Inherent in the power of the Court to determine whether it has jurisdiction ad casum is the proper right to reopen and reconsider the issue of jurisdiction, either proprio motu or upon jurisdictional objection by a party to a dispute, as clearly demonstrated in the Nottebohm case (para. 13 above) and the South West Africa cases (para. 14 above). This, of course, does not mean, as the Judgment correctly stated, that “jurisdictional decisions remain reviewable indefinitely . . .” (Judgment, para. 118). There exist clear limits, both temporal and substantive, within which jurisdictional decisions are reviewable. As regards temporal limits, the jurisdictional decision is reviewable until the Court is functus officio in a given case, whereas substantive limits concern the nature of the circumstances which justify reconsideration. They must be of a special nature affecting legality as the primary value and ultimate purpose of judicial decisions of any court of law, for “The Commission is a tribunal sitting continuously with all the attributes and functions of a continuing tribunal until its work shall have been closed. Where the Commission has misinterpreted the evidence, or made a mistake in calculation, or where its decision does not follow its fact findings, or where in any other respect the decision [p474] does not comport with the record as made, or where the decision involves a material error of law, the Commission not only has power, but is under the duty, upon a proper showing, to re-open and correct a decision to accord with the facts and the applicable legal rules.” (Mixed Claims Commission - United States of America and Germany, AJIL, 1940, Vol. 34, No. 1, p. 154.) Such inherent power and, even, a duty emanate from the very nature of the judicial function, for, as Commissioner Owen Roberts stated, “No tribunal worthy of its name or of any respect may allow its decision to stand if such allegations are well-founded” (ibid., p. 164). 25. The unjustifiably narrow interpretation of the res judicata rule inevitably leads to a striking conclusion that “Subject only to [the] possibility of revision, the applicable principle is res judicata pro veritate habetur, that is to say that the findings of a judgment are, for the purposes of the case and between the parties, to be taken as correct, and may not be reopened on the basis of claims that doubt has been thrown on them by subsequent events.” (Judgment, para. 120; emphasis added.) Considering the Court’s findings to be immutable even in the face of subsequent events throwing doubt on their veracity, the majority view neglects the aspect of legality in the substance of the res judicata rule. As subsequent events can hardly be considered as “a new fact” under Article 61 of the Statute, it appears that the Court as a rule takes decisions ex jure proprio, independently of international law, so that the legal situation determined by the Court is, ex definitione, the true position under international law. Such a view can only be seen as judicial extremism, which cannot but be conducive to absurd results. A good illustration in that regard is precisely this particular case. If the findings of the Court are to be taken as correct, whatever doubt may be thrown on them by subsequent events, the conclusion that follows is that the Respondent State in the case at hand is the Federal Republic of Yugoslavia because the Court so decided in its 1996 Judgment, which, according to the finding by the majority of the Court, is res judicata. 26. A non-preliminary objection, as a vehicle for challenging a judgment on preliminary objections, brings into play the principle of compétence de la compétence in accordance with paragraph 6 of Article 36 of the Statute. That is exactly what happened in the present case. In May 2001, the Federal Republic of Yugoslavia submitted a document [p475] entitled “Initiative to the Court to Reconsider Ex Officio Jurisdiction over Yugoslavia”, requesting the Court to adjudge and declare that it had no jurisdiction ratione personae over it. The request was based on the argument that the Federal Republic of Yugoslavia had not been a party to the Statute of the Court until its admission to the United Nations on 1 November 2000 and that it had not been a party to the Genocide Convention (Judgment, para. 26). In addition, Yugoslavia asked the Court to suspend the proceedings on the merits until the decision on the Initiative was rendered (ibid.). In a letter of 3 December 2001, Bosnia and Herzegovina requested the Court, inter alia, to “respond in the negative to the request embodied in the ‘Initiative’” (Judgment, para. 28). Acting on this matter, the Court decided, as shown by a letter from the Registrar dated 12 June 2003, that it could not effect a suspension of the proceedings. As regards the issue of reconsideration by the Court of its jurisdiction in the case, it was stated inter alia: “The Court . . . as was in fact observed by Serbia and Montenegro in the ‘Initiative’ document, and as the Court has emphasized in the past, is entitled to consider jurisdictional issues proprio motu, and must ‘always be satisfied that it has jurisdiction’ (Appeal Relating to the Jurisdiction of the ICAO Council, I.C.J. Reports 1972, p. 52). It goes without saying that the Court will not give judgment on the merits of the present case unless it is satisfied that it has jurisdiction. Should Serbia and Montenegro wish to present further argument to the Court on jurisdictional questions during the oral proceedings on the merits, it will be free to do so.” (Letter of 12 June 2003; emphasis added.) In a word, the view of the majority that “[s]ubject only to [the] possibility of revision, the applicable principle is res judicata pro veritate habetur . . .” (Judgment, para. 120) seems to run contra factum proprium. 2. Erroneous assessment of the relevant conditions for its application in casu 27. The conditions for the application of the res judicata rule can be divided into two categories: intrinsic and extrinsic. As regards the intrinsic one, according to the classic formula, res judicata applies only where there is an identity of parties (eadem personae) and an identity of the question at issue (eadem res). The latter element is sometimes divided into the object (petitum) and the grounds advanced (causa petendi), for example, Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, dissenting opinion of [p476] Judge Anzilotti, p. 23; Polish Postal Service in Danzig, Advisory Opinion, 1925, P.C.I.J., Series B, No. 11, p.30. The extrinsic condition for applying the res judicata rule, assuming the intrinsic elements are present, is the validity of the judgment. In the Effect of Awards of Compensation Made by the United Nations Administrative Tribunal case, the Court clearly set out the requirement of validity by construing the question put to it by the General Assembly as referring “only to awards of compensation made by the Administrative Tribunal, properly constituted and acting within the limits of its statutory competence” (I.C.J. Reports 1954, p. 55). 28. The “Long March” on the part of the majority of the Court through the issue of the Respondent’s jus standi, ended, after almost 14 years, by its adoption of a third successive position, a position sharing a negative characteristic with the preceding two. That is to say, it has not provided any answer to the question which is the sedes materiae of the jurisdictional complex in the present case, whether the Respondent, under Article 35 of the Statute of the Court, possesses the right to appear before the Court or not. The Court’s first position, embodied in the 1996 Judgment, could be characterized as that of clearly avoiding the question. The majority simply closed their eyes to the relevant issue, as if it did not exist at all. A characteristic feature of the second position, elaborated in the Judgment in Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina) (Judgment, I.C.J. Reports 2003, p. 7), is the attempt to construct a sui generis position of the Respondent vis-à-vis the United Nations in the period 1992-2000. It is some type of explanation for the tacit treatment of the Respondent as a State having jus standi before the Court. In the present Judgment, the majority has formulated a third position, one that can be described, from the substantive point of view, as a return to a modified avoidance position. Specifically, the third position accepts the incontestable fact that the Respondent was admitted, by decision of the competent political organs of the United Nations, to membership of the world Organization on 1 November 2000 (Judgment, para. 99) as a new Member, but it avoids accepting the necessary consequences of that fact as regards the Respondent’s jus standi relying on an erroneous perception of the res judicata rule. However, in another dispute in which Serbia and Montenegro was involved, namely, the Legality of Use of Force cases, the Court decided that the act of admission of Serbia and Montenegro to United Nations membership was determinative as regards jus standi. [p477] This sharp contradiction in determining the legal consequences of the admission of Serbia and Montenegro as regards its jus standi before the Court perhaps vindicates, Honoré de Balzac’s cynicism in observing that: “Les lois sont des toiles d’araignées à travers lesquelles passent les grosses mouches et où restent les petites.” [FN19] ------------------------------------------------------------------------------------------------- [FN19] 19 Honoré de Balzac, La Maison Nucingen (http://www.citationspolitiques.com/ recherche.php3?rechercheLes+lois+sont+des+toiles+d92araignE9es). ------------------------------------------------------------------------------------------------- 29. The issue of jus standi deserves a more detailed elaboration due to its crucial importance in the present case. 3. Jus standi [FN20] as an autonomous processual condition ------------------------------------------------------------------------------------------------- [FN20] The expression “locus standi” or “locus standi in judicio” is usually used. However the expression “jus standi” appears to be more appropriate since it directly addresses the right established by Article 35 of the Statute. The expression “locus standi” is used when it is, as such, employed in the jurisprudence of the Court. ------------------------------------------------------------------------------------------------- 30. Jus standi, in relation to jurisdiction understood in the standard sense to be the Court’s power to solve concrete disputes, is an autonomous and separate processual condition. Substantively, it means a general, potential right of a State entitling it, under the additional proviso of the existence of a proper jurisdictional instrument, to participate in a case before the Court in the capacity of a party, either as an Applicant or as a Respondent, or as an intervening party. As such, jus standi is a general, positive processual condition. It is materialized if a State possessing jus standi brings legal action, has an action brought against it, or, in accordance with the relevant rules of the Court, intervenes in proceedings pend-ing before the Court. Being autonomous, jus standi belongs to a State even if the State is not a party to the dispute or a party to the proceedings pending before the Court. There is no direct, organic link between jus standi before the Court and the jurisdiction of the Court. As the Court stated in the South West Africa cases (Second Phase): “It is a universal and necessary, but yet almost elementary principle of procedural law that a distinction has to be made between . . . the right to activate a court and the right of the court to examine the merits of the claim.”(South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 39, para. 64; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Jurisdiction of the Court, Judgment, I.C.J. Reports 1973, p. 53, para. 11; emphasis added.) Accordingly, the Court does not acquire jurisdiction in the concrete dispute eo ipso, simply because the parties to the dispute possess jus standi before the Court, just as vice versa the existence of a proper jurisdictional [p478] instrument in force between the parties to the dispute does not imply jus standi of the parties to the dispute before the Court. 31. In relation to the issue of jurisdiction, jus standi is antecedent in nature, being a pre-condition for the establishment of the Court’s jurisdiction in casu. In the absence of jus standi of a State (or States) in the dispute, it is legally impossible for the Court to establish its jurisdiction, for “only those States which have access to the Court can confer jurisdiction upon it” (Legality of Use of Force (Serbia and Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1030, para. 45). Moreover, in such a case the Court would not be authorized either to take into consideration the issue of its jurisdiction or to take any judicial action of a substantive nature. Not only is a State, without jus standi precluded from being a party in the proceedings before the Court, but the Court cannot stricti juris even have any dealings with such a State in the judicial, as opposed to administrative, sphere. The Court cannot have recourse to the exercise of the power, vis-à-vis such a State, of determining its jurisdiction (compétence de la compétence), nor can it indicate provisional measures of protection or exercise any of the powers inherent in the judicial function. Consequently actions of the Court, with the exception of those aimed at establishing the jus standi of a State to a dispute are not legally founded in the law of the Court. It could not even be said of any such actions that they had been taken ultra vires, because the effect of ultra vires implies a measure of judicial vires which the Court, has exceeded in the concrete case, but rather the legally non-existent, factual actions had been taken sine vires. Accordingly, the absence of jus standi would be a reason for the absolute nullity of Court actions purporting to be judicial in nature. 3.1. Legal force of the jus standi rule 32. Article 35, paragraph 1, of the Statute is of a constitutional nature, an integral part of the public order established by the Charter of the United Nations. As such, together with other provisions of the Statute of such a nature, it represents a jus cogens, [FN21] incapable of any modification even by the Court itself. Therefore, “The function of the Court to enquire into the matter and reach its own conclusion is thus mandatory upon the Court irrespective of the consent of the parties and is in no way incompatible with the principle that the jurisdiction of the Court depends on consent.” (Legality of Use of Force (Serbia and Montenegro v. Netherlands), [p479] Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1027, para. 35.) ------------------------------------------------------------------------------------------------- [FN21] G. Schwarzenberger, “International Law as Applied by International Courts and Tribunals”, Vol. IV, International Judicial Law, 1986, pp. 434-435: R. Kolb, Théorie du jus cogens international, Essai de relecture du concept, 2001, pp. 344-348; Fachiri, The Permanent Court of International Justice, 1932, p. 63. ------------------------------------------------------------------------------------------------- Article 35 of the Statute provides: “(1) The Court shall be open to the States parties to the present Statute. (2) The conditions under which the Court shall be open to other States shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.” (Emphasis added.) The imperative form of the provisions of Article 35, paragraphs 1 and 2, of the Statute carries with it a dual - permissive and prohibitive - meaning. On the one hand, the provisions authorize a party to the Statute - and a State not party to the Statute, on the condition that it accept the general jurisdiction of the Court in conformity with Security Council resolution 9 (1946) - to gain access to the Court. On the other, they prohibit access to the Court by a non-party to the Statute which has not accepted the general jurisdiction of the Court pursuant to Security Council resolution 9 (1946). The combined effects of Article 35, paragraphs 1 and 2, of the Statute together with Article 34, paragraph 1, of the Statute express the limited nature of the right to judicial protection before the International Court of Justice. The limited right to judicial protection before the International Court of Justice is part of the public order of the Organization of the United Nations, whose principal judicial organ is the Court. In Article 93 (1) and (2) the Charter provides: “(1) All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice. (2) A State which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.” This should be read in conjunction with Articles 34 (1) and 35 (1) and (2) of the Statute of the Court, which is itself “an integral part of the present Charter” (Art. 92 of the Charter). As such, paragraphs 1 and 2 of Article 35 of the Statute are mandatory and the Court is bound to apply them ex officio. In respect of the temporal element in the application of the rules, given the antecedent nature of jus standi, the Court is under an obligation to establish the jus standi of the parties to the dispute before any proceedings whatsoever, and to take account of it throughout the entire proceedings. For instance, it is possible that a party in the [p480] case before the Court ceases to exist as a State in the course of the proceedings. 33. A proper pattern of ex lege reasoning of the Court, in the otherwise modest jurisprudence of the Court relating to jus standi, is offered by the Judgment in the Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) case: “the Minister for Foreign Affairs of Iceland seemed to suggest that the timing of the declaration of the Federal Republic of Germany of 29 October 1971, deposited with the Registrar on 22 November 1971, may have had some effect on the binding force of the agreement contained in the Exchange of Notes of 19 July 1961 or on the right of access to the Court of the Federal Republic of Germany.As to the first point, it is clear that the binding force of the agreement between the two Governments, which is to be examined in the present Judgment, bears no relation to the date on which the declaration required by the Security Council resolution of 15 October 1946 was deposited with the Registrar: the former is designed to establish the jurisdiction of the Court over a particular kind of dispute; the latter provides for access to the Court of States which are not parties to the Statue. As to the second point (i.e., the question of the Federal Republic’s right of access to the Court), according to the Security Council resolution, a declaration, which may be either particular or general, must be filed by the State which is not a party to the Statute, previously to its appearance before the Court. This was done.” (Jurisdiction of the Court, Judgment, I.C.J. Reports 1973, p. 53, para. 11; emphasis added.) The pattern was followed by the Court in the Legality of Use of Force cases as well: “the question whether Serbia and Montenegro was or was not a party to the Statute of the Court at the time of the institution of the present proceedings is fundamental; for if it were not such a party, the Court would not be open to it under Article 35, paragraph 1, of the Statute. In that situation, subject to any application of paragraph 2 of that Article, Serbia and Montenegro could not have properly seised the Court, whatever title of jurisdiction it might have invoked, for the simple reason that Serbia and Montenegro did not have the right to appear before the Court. The Court can exercise its judicial function only in respect of those States which have access to it under Article 35 of the Statute. And only those States which have access to the Court can confer jurisdiction upon it.” (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 299, para. 46; emphasis added.) [p481] 3.2. Differentia specifica between jus standi and jurisdiction of the Court ratione personae 34. Both notions - jus standi and jurisdiction ratione personae - share the characteristic of belonging to the corpus of processual conditions necessary for the validity of proceedings - whether incidental or on the merits - before the Court and with respect to the reference of disputes to the Court for decision. They also share the attribute of being absolute processual conditions that must be satisfied in every case and both are positive requirements in that, if they are not satisfied, the Court cannot entertain the claims made. 35. The differences between them, however, are considerably greater, making them distinct processual conditions. Primo, they reflect the different aspects of the legal nature of the Court. While jurisdiction ratione personae, as one of the relevant aspects of jurisdiction, expresses the consensual nature of the Court’s jurisdiction, jus standi derives from the fact that the International Court of Justice, in contrast to arbitration courts, is not a fully open court of law. Access to the Court is limited in two respects on the basis of Articles 34, paragraph 1, and Article 35, paragraphs 1 and 2, of the Statute of the Court. Tertio, although both jurisdiction ratione personae and jus standi are regulated by the rules of the Statute having an objective, constitutional character, there exists a fundamental difference in the application of these rules. The rules of the Statute which concern jus standi are applied by the Court ex lege, while the corresponding rules concerning jurisdiction ratione personae are applied on the basis of the consent of the States to the dispute. In its Judgments in the Legality of Use of Force cases, the Court stated, inter alia, that “a question of jurisdiction . . . relates to the consent of a party and the question of the right of a party to appear before the Court under the requirements of the Statute, which is not a matter of consent” (Serbia and Montenegro v. Netherlands, Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1026, para. 35). Therefore, it can be said that in substance the jurisdiction of the Court is governed by the law in force between the parties, while jus standi is governed by objective rules of the Statute as such. Quatro, the differing natures of jus standi, on the one hand, and jurisdiction ratione personae, on the other, generate corresponding legal consequences in the proceedings. A lack of jus standi possesses an automatic effect, since, as a rule, it cannot be overcome in the proceedings before the Court, while a lack of jurisdiction ratione personae is surmountable as the parties may either confer jurisdiction upon the Court in the course of the proceedings [p482] or perfect it - for instance, by express agreement or by forum prorogatum. As a consequence, in contrast to a lack of jus standi, the absence of jurisdiction ratione personae does not preclude valid seisin of the Court. Quinto, the competence or special jurisdiction in the particular case of the International Court of Justice, as a semi-open court of law with jurisdiction based on consent of the parties to a dispute, implies twofold consent by States: (a) consent that the Court is “an organ instituted for the purpose jus dicere”(Corfu Channel, Preliminary Objection, Judgment, 1948, Reports 1947-1948, dissenting opinion of Judge Daxner, 39). This consent is expressed indirectly, through membership of the United Nations, or directly, in the case of a non-Member of the United Nations either by adhering to the Statute of the Court or by accepting the general jurisdiction of the Court in conformity with Security Council resolution 9 (1946), as a preliminary condition; and (b) consent that the Court is competent to deal with the particular dispute or type of dispute which is given through relevant jurisdictional bases under Article 36 of the Statute, as a substantive but qualified condition. As the Court stated in the Nottebohm case: “under the system of the Statute the seisin of the Court by means of an Application is not ipso facto open to all States parties to the Statute, it is only open to the extent defined in the applicable Declarations” (Nottebohm (Liechtenstein v. Guatemala), Preliminary Objection, Judgment, I.C.J. Reports 1953, p. 122). The principle was further elaborated by the Court in the Legality of the Use of Force case: “Whereas the Court, under its Statute, does not automatically have jurisdiction over legal disputes between States parties to that Statute or between other States to whom access to the Court has been granted . . . whereas the Court can therefore exercise jurisdiction only between States parties to a dispute who not only have access to the Court but also have accepted the jurisdiction of the Court, either in general form or for the individual dispute concerned.” (Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (I), pp. 549-550, para. 20; emphasis added.) 36. In the application of the two autonomous rules - jurisdiction ratione personae and jus standi - with their own objects and effects, the latter possesses logical and normative priority. Jus standi, as an expression of the right to judicial protection is antecedent in nature, is a preliminary question which “should be taken in advance of any question of [p483] competence” (Northern Cameroons (Cameroons v. United Kingdom), Preliminary Objections, I.C.J. Reports 1963, separate opinion of Sir G. Fitzmaurice, p. 105; emphasis in the original). For “The Court can exercise its judicial function only in respect of those States which have access to it under Article 35 of the Statute. And only those States which have access to the Court can confer jurisdiction upon it.” (Legality of Use of Force (Serbia and Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1030, para. 45.) 4. Assessment of the Respondent’s jus standi by the majority 37. The majority assessment of the Respondent’s jus standi is somewhat confused and significantly self-contradictory, mostly because it seeks to reconcile the irreconcilable. As regards the nature of jus standi, i.e., whether or not it is an autonomous processual requirement, the position of the majority is that it “may be regarded as an issue prior to that of jurisdiction ratione personae,or as one constitutive element within the concept of jurisdiction ratione personae” (Judgment, para. 102). The finding could be considered correct if it related to the terminology used in relation to these two notions, but not in the present context. If, as pointed out, jus standi, in contrast to jurisdictional issues, “is not a matter of the consent of the parties” (ibid.), then obviously the latter understanding does not apply. Like any other processual requirement, jus standi cannot simultaneously be based on the consent of the parties and on the requirements of the Statute, which is not a matter of consent, as stated in the Judgment in the Legality of Use of Force (Serbia and Montenegro v. Belgium) (Judgment, I.C.J. Reports 2004, p. 295, para. 36) to which reference is made. After all, in further reasoning the Judgment determines jus standi in negative terms as a distinct condition by saying that “the capacity to appear before the Court . . . was an element in the reasoning of the 1996 Judgment, which can - and indeed must - be read into the Judgment as a matter of logical construction” (Judgment, para. 135; emphasis added). If jus standi is indeed an element of jurisdiction ratione personae, then there is probably no need for any “logical construction” on the basis of which jus standi, although unstated, should be read into the judgment. It appears, however, that the legal situation is a different one. As the Court stated in the South West Africa cases: “It is a universal and necessary, but yet almost elementary principle [p484] of procedural law that a distinction has to be made between . . . the right to activate a court and the right of a court to examine the merits of the claim.” (South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 39, para. 64; Fisheries Jurisdiction, (United Kingdom v. Iceland), Jurisdiction of the Court, Judgment, I.C.J. Reports 1973, p. 53, para. 11.) Jus standi can be perceived as an element of jurisdiction ratione personae only if in a descriptive sense or if jurisdiction ratione personae is understood lato sensu to comprise different legal concepts set out in Articles 35 and 36 of the Statute. 38. In casu, the relevant issue is not jurisdiction ratione personae, but the issue of the right of Serbia to appear before the Court. The petitum non-preliminary objection of Serbia is its jus standi and not jurisdiction ratione personae, and causa petendi is Article 35 of the Statute and not its Article 36. In that sense, the finding of the Court in Asylum case seems applicable. In the said case, the Court, inter alia, found: “the question of the surrender of the refugee was not decided by the Judgment of November 20th. This question is new . . . There is consequently no res judicata upon the question of surrender.” (I.C.J. Reports 1951, p. 80.) It is true that the Respondent, while invoking the lack of jus standi on its part, uses also the expression “jurisdiction ratione personae”. But, that fact can hardly be excusable for the Court because involved here is a questio juris which falls within the ambit of the rule of jura novit curia. 39. The Judgment correctly recognizes that the capacity of the Federal Republic of Yugoslavia to appear before the Court in accordance with the Statute “was unstated” in the 1996 Judgment, that is, that “[n]othing was stated in the 1996 Judgment about . . . whether it [Federal Republic of Yugoslavia] could participate in proceedings before the Court . . .” (Judgment, para. 122). The matter is clearly self-evident. And it is self-evident not only as regards the dispositif of the Judgment, at that. The reasons in point of law which served as the basis for the dispositif of the Judgment are basically limited to the question whether the parties to the dispute could have been considered parties to the Genocide Convention (1996 Judgment, paras. 17-20), and to such related issues as automatic succession in relation to certain types of international treaties and conventions (ibid., paras. 21, 23), the nature of the Genocide Convention (ibid., para. 22) and the effect of non-recognition of the contractual nexus between parties to a multilateral treaty (ibid., paras. 25, 26). Ergo, the evidence appears to be incontrovertible: the Court’s Judgment of 11 July 1996 did not, either in the dispositif or in the principles underlying it, touch upon, let alone decide, the issue [p485] of the jus standi of the Federal Republic of Yugoslavia before the Court. Moreover, there is no trace in other components of the 1996 Judgment - the headnote setting out the main issues discussed, the summary of the proceedings, including the parties’ submissions - indicating that the Court at least considered the issue. However, the majority has not drawn the necessary consequences from factum proprium. Regardless of possible differences in the perception of the res judicata rule as regards its nature and effects, there remain the classic intrinsic conditions for the application of the rule in casu. And it is obvious, on the basis of the majority view itself, that one of the elements - identity of the question at issue eadem res - is lacking, which automatically disqualifies the rule from application in relation to the 1996 Judgment. 40. The judgment has been construed by inference, which, combined with a peculiar perception of the res judicata rule, is supposed to avert the necessary consequences of the Respondent’s lack of jus standi in the present case. The main elements of the reasoning come down to the following: The operative part of the 1996 Judgment saying that “on the basis of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, [the Court] has jurisdiction to decide upon the dispute”, being res judicata, established the jurisdiction of the Court in casu “with the full weight of the Court’s judicial authority. For a party to assert today that, at the date the 1996 Judgment was given, the Court had no power to give it, because one of the parties can now be seen to have been unable to come before the Court is . . . to call in question the force as res judicata of the operative clause of the Judgment.” (Judgment, para. 123.) The fact that the Court has given no consideration to, let alone decided upon, the jus standi of the Respondent is of no significance, because it must be considered “by necessary implication, to mean that the Court at that time perceived the Respondent as being in a position to participate in cases before the Court. On that basis, it proceeded to make a finding on jurisdiction which would have the force of res judicata.” (Judgment, para. 132.) The reasoning arising by “necessary implication” continues, so that “the express finding in the 1996 Judgment that the Court had jurisdiction in the case ratione materiae, ...isa findingwhichisonly [p486] consistent, in law and logic, with the proposition that, in relation to both Parties, it had jurisdiction ratione personae in its comprehensive sense, that is to say, that the status of each of them was such as to comply with the provisions of the Statute concerning the capacity of States to be parties before the Court” (Judgment, para. 133). The “necessary implication” underlying the reasoning referred to above is, in fact, an attempt to incorporate inferential judgment, or judgment by implication, into the sphere of judicial reasoning. Given the very concept of judgment, i.e., that “[n]othing was stated in the 1996 Judgment about . . . whether it [the Federal Republic of Yugoslavia] could participate in proceedings before the Court . . .” (Judgment, para. 122), the requirements relating to the content and structure of judgments, as laid down in Article 56, paragraph 1, of the Statute and Article 95, paragraph 1, of the Rules, the underlying legal considerations and, even common sense, the interpretation of the Judgment by inference is, at the very least, contradictio in adiecto. In particular, in relation to the issue of jus standi, which can by no means be said to be dependent on, or for that matter an aspect of, the issue of jurisdiction ratione personae which was formally decided. It is not only a distinct and autonomous issue but also one that determines objective limits of the judicial power of the Court, legality of its actions in terms of objective international law. 41. The wording of the Judgment suggests that the reason why the Court did not consider and decide upon jus standi of the Respondent was the position taken in that regard by Parties to the dispute, but particularly the Respondent. “Nothing was stated in the 1996 Judgment about . . . the question whether it [the FRY] could participate in proceedings before the Court; for . . . both Parties had chosen to refrain from asking for a decision on these matters.” (Judgment, para. 122.) The Respondent raised seven preliminary objections, but “[n]one of these objections were however founded on a contention that the FRY was not a party to the Statute at the relevant time; that was not a contention specifically advanced in the proceedings on the preliminary objections” (Judgment, para. 106). Owing to the nature of the issue of jurisdiction, the reason is not effective as an excuse and has no legal effect in the matter at hand. 42. In view of the fact that “the establishment or otherwise of jurisdiction is not a matter for the parties but for the Court itself” (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, [p487] I.C.J. Reports 1998, p. 450, para. 37; also, separate opinion of President McNair in the jurisdiction phase of the case concerning Anglo-Iranian Oil Co., in which he stated that “[a]n international tribunal cannot regard a question of jurisdiction solely as a question inter partes” (Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 116)), the dispute between the parties as to the jurisdiction in the preliminary objection phase is not a necessary condition for the Court to address the issue of jurisdiction and, a fortiori, the issue of jus standi. Preliminary objections raised by a party are only a tool, a procedurally designed weapon for the establishment of the jurisdiction of the Court, suo nomine et suo vigore, for it is under an obligation to do so ex officio. The legal significance of proceedings on preliminary objections was defined by the Court in the case concerning Rights of Minorities in Upper Silesia (Minority Schools) (hereinafter referred to as “Minority Schools” as follows: “the raising of an objection by one Party merely draws the attention of the Court to an objection to the jurisdiction which it must ex officio consider”(Rights of Minorities in Upper Silesia (Minority Schools), Judgment No. 12, 1928, P.C.I.J., Series A, No. 15,p.23; emphasis added). Or, as stated by the Court in the Genocide Convention case: “[t]he Court must, in each case submitted to it, verify whether it has jurisdiction to deal with the case, . . . [s]uch objections as are raised by the Respondent may be useful to clarify the legal situation” (Pre-liminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 622, para. 46; emphasis added). Accordingly, the establishment by the Court of its jurisdiction in casu is not necessarily linked with the dispute as to jurisdiction. If the Court is under a duty to verify its jurisdiction in each specific case whether or not there is a preliminary objection as such, then the pleadings of the parties in the proceedings are not a fortiori of decisive importance in that respect. If, as Shabtai Rosenne, commenting on the case concerning Monetary Gold Removed from Rome in 1943 (hereinafter referred to as “Monetary Gold”) says: “[t]he fact that an objection is made does not mean - in the eyes of the Court - that the Court is being asked not to determine the merits of the claim under any circumstances”, [FN22] [p488] then the contrary is equally valid, i.e., that the Court is being asked not to determine the merits of the claim if an objection to the preliminary objection is not made. Extensive practice of the Court to this effect has been established. ------------------------------------------------------------------------------------------------- [FN22] Shabtai Rosenne, The Law and Practice of the International Court, 1920-1996, 3rd ed., Vol. II, Jurisdiction, 1997, p. 863. ------------------------------------------------------------------------------------------------- The Court’s dictum in the case concerning the Appeal Relating to the Jurisdiction of the ICAO Council (hereinafter referred to as “ICAO Council”) may be taken as a synthesis of that practice: “[t]he Court must however always be satisfied that it has jurisdiction, and must if necessary go into that matter proprio motu”(Judgment, I.C.J. Reports 1972, p. 52, para. 13). This is also reflected in the opinions of judges. In the case concerning Mavrommatis Palestine Concessions, Judge Moore in his dissenting opinion stated that “even though the Parties be silent, the tribunal, if it finds that competence is lacking, is bound of its own motion to dismiss the case” (Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 58);inthe Minority Schools case, Judge Huber in his dissenting opinion found that the Court “must ex officio ascertain on what legal foundation it is to base its judgment upon the claims of the Parties” (Judgment No. 12, 1928, P.C.I.J., Series A, No. 15, p. 54); and in the case concerning the Free Zones of Upper Savoy and the District of Gex, Judge Kellogg pointed out in his observations attached to the Order of 6 December 1930 that it was not necessary that the question of jurisdiction be raised by one of the parties, since “[i]t may and should be raised by the Court on its own initiative, as was done in the Eastern Carelia case” (Order of 6 December 1930, P.C.I.J., Series A, No. 24, p. 43). 43. Asa questio juris, [FN23] the jurisdiction of the Court is within the scope of the principle jura novit curia. In the case concerning Territorial Jurisdiction of the International Commission of the River Oder (hereinafter referred to as “River Oder”) it was not until the oral proceedings that the Polish Government contended that the Barcelona Convention had not been ratified by Poland. The six Respondents asked the Court to reject the Polish contention a limine, for having been submitted at such an advanced stage of the proceedings. The Court dismissed the objection as untenable for “[t]he fact that Poland has not ratified the Barcelona Convention not being contested, it is evident that the [p489] matter is purely one of law such as the Court . . . should examine ex officio”(Judgment No. 16, 1929, P.C.I.J., Series A, No. 23, p. 19). ------------------------------------------------------------------------------------------------- [FN23] “The existence of jurisdiction of the Court in a given case is ... not a question of fact, but a question of law to be resolved in the light of the relevant facts.” (Border and Trans-border Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 76, para. 16.) The question of the Court’s jurisdiction is “necessarily an antecedent and independent one - an objective question of law - which cannot be governed by preclusive considerations capable of being so expressed as to tell against either Party - or both Parties” (Appeal Relating to the Jurisdiction of the ICAO Council, Judgment, I.C.J. Reports 1972, p. 54, para. 16 (c)). ------------------------------------------------------------------------------------------------- Being bound by law, the Court is not bound by the arguments of the parties. This follows clearly from the principle jura novit curia addressed by the Court in its Judgments in the cases concerning Fisheries Jurisdiction (United Kingdom v. Iceland) and Fisheries Jurisdiction (Federal Republic of Germany v. Iceland): “The Court . . . as an international judicial organ, is deemed to take judicial notice of international law, and is therefore required in a case falling under Article 53 of the Statute, as in any other case,to consider on its own initiative all rules of international law which may be relevant to the settlement of the dispute . . . for the law lies within the judicial knowledge of the Court.” (Merits, Judgment, I.C.J. Reports 1974, p. 9, para. 17; ibid., p. 181, para. 18; emphasis added.) The principle has also been confirmed in the Nicaragua case by a dictum: “[f]or the purpose of deciding whether the claim is well founded in law, the principle jura novit curia signifies that the Court is not solely dependent on the argument of the parties before it with respect to the applicable law” (Merits, Judgment, I.C.J. Reports 1986,p.24, para. 29; cf. “Lotus”, Judgment No. 9, 1927, P.C.I.J., Series A, No. 10, p. 31). Consequently, the rule according to which a party seeking to assert a fact must bear the burden of proving it “has no relevance for the establishment of the Court’s jurisdiction” (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 450, para. 37). 44. Accordingly, in these circumstances, in its 1996 Judgment the Court proceeded from the “assumption” that the FRY possessed the right to appear before the Court in accordance with the Statute (Judgment, para. 135). That assumption “was an element in the reasoning of the 1996 Judgment which can - and indeed must - be read into the judgment as a matter of logical construction” (ibid.). It does not, however, follow that “that element is not one which can at any time be reopened and re-examined . . .” (ibid.). The reasoning seems to fail to take into account the differences between legal assumptions (praesumptio juris) and judicial (praesumptio facti vel homine), into which category the “assumption” regarding the Federal Republic of Yugoslavia’s jus standi before the Court actually falls. [p490] Judicial presumption, along with legal presumption, [FN24] is one of the main sorts of presumption in international law. ------------------------------------------------------------------------------------------------- [FN24] Better known than judicial presumptions, legal presumptions (praesumptio juris) are widely applied in international law. International tribunals are used to resorting to proof by inferences of fact (présomption de fait) or circumstantial evidence (Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 18). For legal presumption in the practice of the Inter-American Court of Human Rights, see T. Buergenthal, R. Norris and D. Shelton, Protecting Human Rights in the Americas, Selected Problems, 2nd ed., 1986, pp. 130-132 and pp. 139-144. ------------------------------------------------------------------------------------------------- It means that a certain fact or state of affairs, even though it has not been proved, is taken by an international tribunal as truthful. As such it does not necessarily coincide with, or is not equivalent to, the fact or the state of affairs. Considerations of a practical nature prevail in the rationale for the use of judicial presumption. Judicial presumption is a tool used to preclude a long wait in discovering the full facts and exact situation on which depends the existence, content or cessation of the right where such protracted periods would have adverse consequences for the parties concerned or would impede the due course of legal proceedings. 45. As a sort of presumption, a judicial presumption has some specific features differentiating it from a legal presumption (praesumptio juris). Two principal features of judicial presumption should be mentioned in this regard. Primo, judicial presumption is, as a rule, a natural, factual presumption (praesumptio facti vel homine) having no basis in the particular rules that constitute the law of the international tribunal or the law it is applying. It is an inherent element of the legal reasoning of the international tribunal in interpreting and applying the rules of law. The practice of international courts abounds in presumptions based on general principles of international law, whether positive such as presumptions of good faith (exempli causa, Mavrommatis Jerusalem Concessions, Judgment No. 5, 1925, P.C.I.J., Series A, No. 5, p. 43) or negative such as presumptions of abuse of right (Certain German Interests in Polish Upper Silesia, Merits, Judgment No. 7, 1926, P.C.I.J., Series A, No. 7,p.30; Free Zones of Upper Savoy and the District of Gex, Order of 6 December 1930, P.C.I.J., Series A, No. 24,p.12; Corfu Channel, Merits, Judgment, 1949, I.C.J. Reports 1949, p. 119: dissenting opinion of Judge Ecer). They possess special weight in the interpretation of treaties since the function of treaty interpretation is to discover “what was, or what may reasonably be presumed to have been, the intention of the parties to a treaty when they concluded it” (Harvard Law School, Research in International Law, Part III, Law of Treaties, Art. 19, p. 940; emphasis added). [p491] Secundo, in contrast to legal presumptions which can be irrefutable (praesumptio juris et de jure), judicial presumptions as natural or factual ones are, by definition, refutable. Their refutability is, however, specific in nature. Given that it is a part of the reasoning of the international tribunal, a judicial presumption cannot be refutable in the same way that a legal presumption can be. A judicial presumption, as such, is in fact capable of being abandoned or replaced by the international tribunal. In its legal reasoning the international tribunal abandons it, or replaces it, by another presumption or established fact. In the strict sense, only those findings or decisions of the international tribunal that are based on legal presumptions are refutable. However, judicial presumptions lose the ratio of their existence when the international tribunal identifies the controversial matter in controversy which constitutes its object. They then fall away by themselves because they are deprived of their subject. But even then it is the duty of the international tribunal to refute, in the proper proceedings, its own finding or decision based on presumption. Also, in contrast to a legal presumption, a judicial presumption is not, and by its effects cannot be equated with, a judicial finding of the Court, being its factual substitute. Hence, it cannot be considered that, by relying on that particular presumption, the Court has taken a decision on the Respondent’s jus standi. Rather, the Court has done so factually as an element of its reasoning. 46. The rationale of judicial presumptions is provisionally to substitute for proven facts or circumstances in order to avert delay in identifying the exact facts and situations where such delay is likely to have adverse consequences for the parties to a dispute or to impede the due course of legal proceedings. However, after the true facts and circumstances have been established, judicial presumptions should be abandoned and replaced by proven facts. A contrario, if a court of law stands by legal presumptions in preference to proven facts, it maintains a judicial fiction, its own truth, in the face of facts and situations in terms of law. The Court is doing exactly this by clinging to the assumption about the Respondent’s jus standi, and the inextricably related issue of the Respondent’s membership in the United Nations in the period 1992-2000. [p492] 5. The effects of the 2004 Judgment The question of the Respondent’s United Nations membership as determinative in regard to its jus standi before the Court, in the circumstances surrounding the issue, seems, considering its being of a status nature, to have been solved by the Court’s Judgment in the Legality of Use of Force cases in 2004. Also, the majority holds the view that the FRY was admitted to the United Nations “as a new member in 2000” (Judgment, para. 109). However, the Court has not drawn from that fact, a fact of decisive jurisdictional significance in casu, necessary consequences regarding the jus standi of the Respondent. The reason for this has been found in the recognition of the Parties that these Judgments “do not constitute res judicata for the purposes of the present proceedings” (Judgment, para. 84). Two observations may be made in respect of this determination of the effects of the 2004 Judgments. Primo, the question of the effects of the Court’s judgments is a questio juris and, as such, within the ambit of the principle of jura novit curia signifying that the Court is not dependent on the agreement of the parties with respect to the applicable law. Secundo, the effects of a judgment are not fully exhausted by the rule of res judicata. It is hardly necessary to say that the Court’s Judgment of 15 December 2004 in the Legality of Use of Force cases does not produce the effects of res judicata in the present case, given that one of the intrinsic elements of the res judicata rule - eadem personae - is lacking. Bosnia and Herzegovina was not a party in the Legality of Use of Force cases. Consequently, it is not bound by the Court’s decision in those cases qua decision. That is one point. The material effects of the 2004 Judgment on the case at hand are another. It is clearly established in the jurisprudence of the Court that the material effects of a decision of the Court are not necessarily limited to the case decided and therefore may, depending on circumstances, occasionally extend beyond it. In the Aegean Sea case the Court stated inter alia: “Although under Article 59 of the Statute ‘the decision of the Court has no binding force except between the parties and in respect of that particular case’, it is evident that any pronouncement of the Court as to the status of the 1928 [General Act for the Pacific Settlement of International Disputes], whether it were found to be a convention in force or to be no longer in force, may have implications in relations between States other than Greece and Turkey [Parties to the present proceedings].” (I.C.J. Reports 1978, pp. 17-18, para. 39; emphasis added.) [p493] A narrow interpretation of Article 59 simply does not fit into the corpus of the Court’s law. [FN25] ------------------------------------------------------------------------------------------------- [FN25] “If it is true that a Judgment of the Court is clothed with authority of res judicata only in the case which has been decided, that would mean that if the lis concerns the interpretation of a clause of a treaty, the interpretation given could be used again in arguments in any future lis concerning the same clause of a treaty. Such a result would not only be absurd; it would put Article 59 in irreconcilable contradiction with the last sentence of Article 63 of the same Statute, which provides that when a third state intervenes in a case in which there is in question the construction of a multilateral convention to which it and the States concerned in the case are parties, the construction given by the Court will be equally binding on that state.” (Lighthouses Arbitration (France v. Greece), Permanent Court of Arbitration, 23 ILR 81 at 86 (1956).) Also, Judge Oda in his separate opinion in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene), I.C.J. Reports 1981, p. 30, para. 14; Continental Shelf (Libyan Arab Jamahiriya/Malta), I.C.J. Reports 1984, dissenting opinion of Judge Jennings, pp. 157-160; ibid., dissenting opinion of Vice-President Sette-Camara, p. 87, para. 81; ibid., dissenting opinion of Judge Schwebel, p. 134, paras. 9-10). ------------------------------------------------------------------------------------------------- Accordingly, the real question in concreto is not whether there are material effects of the 2004 Judgment on the case at hand, but “whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases” (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, para. 28), or to treat the 2004 Judgment “as a statement of what the Court regarded as the correct legal position” (Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections, Judgment, I.C.J. Reports 1961, p. 27) in the matter. It appears not only that such cause does not exist, but that there are moreover several reasons why the Court should follow its earlier reasoning, which inevitably leads to the conclusions adapted by the Court in its 2004 Judgment. First of all, the relevant issue - was the Respondent a member of the United Nations at the material point in time and, as such, a party to the Statute of the Court - in the identical form, followed by identical legal consequences, is posed in both cases. The locus standi of Serbia and Montenegro in the present proceedings is, exactly as in the Legality of Use of Force cases, inextricably linked with membership in the United Nations, owing to the fact that Serbia and Montenegro could not be considered to be a party to the Statute on any basis other than membership in the United Nations, the fact that its locus standi cannot be based on the conditions set forth in Article 35, paragraph 2, of the Statute. As a rule, a given factual state and legal status occurring in two different cases demands equal treatment under [p494] the principles of consistency of judicial reasoning and equality before the Court. Furthermore, the Court, by finding that “at the time of filing of its Application to institute . . . proceedings before the Court on 29 April 1999, the Applicant in the present case, Serbia and Montenegro, was not a Member of the United Nations” (Legality of Use of Force (Serbia and Montenegro v. Portugal), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1195, para. 90), basically took judicial notice of a fact objectively established by the competent organs of the United Nations, which in the context of the case operated as a jurisdictional fact of decisive significance. United Nations General Assembly resolution 55/12 as such has created an objective legal status which is erga omnes in character. Even if we leave aside the binding force of resolution 55/12, that part of the Judgment of the Court concerning the determination of the status of Serbia and Montenegro vis-à-vis the United Nations in the relevant period of time remains none the less, by its nature, a declaratory judgment in rem producing conclusive effects at least as regards States parties to the Statute of the Court. As such, the Judgment cannot, in that part, be treated as a judgment in personam, having conclusive effects only between the parties to the case, because its subject matter is the status of Serbia and Montenegro both in relation to the United Nations itself and in relation to the Members of the United Nations. 52. Resolution 55/12 belongs to the species of United Nations General Assembly resolutions having a definitive and binding effect within the United Nations structure as a whole. “Article 18 [of the Charter] deals with ‘decisions’ of the General Assembly ‘on important questions’. These ‘decisions’ do indeed include certain recommendations, but others have dispositive force and effect. Among these latter decisions, Article 18 26 includes suspension of rights and privileges of membership, expulsion of Members . . . In connection with the suspension of rights and privileges of membership and expulsion from membership under Articles 5 and 6, it is the Security Council which has only the power to recommend and it is the General Assembly which decides and whose decision determines status.” (Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 163; emphasis added.) 26 Article 18 of the Charter reads: “2. Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present and voting. These questions shall include: ... the admission of new Members to the United Nations, the suspension of the rights and privileges of membership, the expulsion of Members ...” [p495] On the basis of Article 4, paragraph 2 of the Charter “The admission ofany... StatetomembershipintheUnitedNationswillbeeffectedby a decision of the General Assembly upon the recommendation of the Security Council” (emphasis added). 53. Lying within the exclusive competence of two principal political organs of the United Nations, the Security Council and the General Assembly, decisions on the admission of a State to the United Nations are a part of international law which “[the Court] . . . is bound to respect” (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, separate opinion of Judge Lachs, p. 26). In the system of functional parallelism, it must be assumed as a governing principle of relations between the principal organs of the United Nations that the “Court must co-operate in the attainment of the aims of the Organization and strive to give effect to the decisions of other principal organs and not to achieve results which would render them nugatory”. [FN27] ------------------------------------------------------------------------------------------------- [FN27] Shabtai Rosenne, The Law and Practice of the International Court, 1920-2005, 3rd ed., Vol. I, The Court and the United Nations, 1997, pp. 69-70. ------------------------------------------------------------------------------------------------- The determination that the Respondent enjoyed the status of member as from 1 November 2004 became a part of the objective reality established in the United Nations structures as a whole. In a letter to the President of the United Nations General Assembly, dated 27 December 2001, United Nations Secretary-General Kofi Annan stated: “I have the honour to refer to General Assembly resolution 55/12 of 1 November 2000, in which the Assembly decided to admit the Federal Republic of Yugoslavia to membership in the United Nations. This decision necessarily and automatically terminated the membership in the Organization of the former Yugoslavia, the State admitted to membership in 1945.” [FN28] ------------------------------------------------------------------------------------------------- [FN28] United Nations doc. A/56/767; emphasis added. ------------------------------------------------------------------------------------------------- Under the heading “Historical Information on Multilateral Treaties Deposited with the Secretary-General”, [FN29] it is stated expressis verbis that the “Yugoslavia” to which the Legal Counsel referred in his letter of 29 September 1992 as the State whose membership in the Organization “the resolution neither terminates nor suspends”, was the former Yugoslavia, i.e., the Socialist Federal Republic of Yugoslavia, not the Federal Republic of Yugoslavia: “The Legal Counsel took the view, however, that this resolution of the General Assembly neither terminated nor suspended the membership of the former Yugoslavia in the United Nations.” [p496] ------------------------------------------------------------------------------------------------- [FN29] See Historical Information, http://untreaty.un.org/ENGLISH/bible/englishinternet-bible/historicalinfo.asp under the heading “former Yugoslavia”. ------------------------------------------------------------------------------------------------- It is also relevant that no State has objected to the legal opinion of the United Nations Legal Counsel referred to above, in contrast to the position of United Nations Member States with respect to the description of the Federal Republic of Yugoslavia as a predecessor State made in the “Summary of Practice of the Secretary-General as depositary of Multilateral Treaties”; [FN30] in response to the objections raised, the Legal Counsel issued “Errata” [FN31] which, inter alia, deleted the description of the Federal Republic of Yugoslavia as a predecessor State. ------------------------------------------------------------------------------------------------- [FN30] ST/LEG.8, p. 89, para. 297. [FN31] United Nations doc. LA41TR/220. ------------------------------------------------------------------------------------------------- 54. This fact taken per se evidences universal acceptance both by the Member States of the United Nations and by the organs of the Organization of the legal consequences of the admission of the Federal Republic of Yugoslavia to membership of the United Nations. The Court summarized these as follows: “The Applicant [Serbia and Montenegro] thus has the status of membership in the United Nations as from 1 November 2000. However, its admission to the United Nations did not have, and could not have had, the effect of dating back to the time when the Socialist Federal Republic of Yugoslavia broke up and disappeared; there was in 2000 no question of restoring the membership rights of the Socialist Federal Republic of Yugoslavia for the benefit of the Federal Republic of Yugoslavia.” (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 310, para. 78.) 55. This interpretation of the meaning of resolution 47/1 is not a new one. It should be noted that it was advocated in the literature as well. In an article entitled “The New United Nations and Former Yugoslavia”, Professor Rosalyn Higgins wrote: “The Assembly did recommend that the new Federal Republic (Serbia-Montenegro) should apply for membership of the United Nations. But the resolution did not either suspend, or terminate, Yugoslavia’s membership in the UN. The outcome has been anomalous in the extreme. The seat and nameplate remain as before. The old Yugoslav flag continues to fly on the 42nd Street. ‘Yugoslavia remains a member of the UN, i.e., not Serbia and Montenegro, but Yugoslavia in its entirety.’” [FN32] ------------------------------------------------------------------------------------------------- [FN32] 69 International Affairs, 1993, p. 479; emphasis added. ------------------------------------------------------------------------------------------------- 56. Although it limited itself in the dispositif to the determination of its jurisdiction to entertain the case, the Court essentially dealt, in the [p497] reasoning part of the 2004 Judgment, with the question of the Federal Republic of Yugoslavia’s membership in the United Nations in the relevant time period. The Court’s finding that the Federal Republic of Yugoslavia was not a member of the United Nations before its admission to the Organization in November 2000 was of fundamental importance in the circumstances surrounding the issue of the Court’s competence in casu. 57. The dispositif in the 2004 Judgment was not the result of the reasoning by the Court in selecting among alternatives or choosing one of several different interpretations for which the relevant jurisdictional fact would provide a motive; it was the unavoidable result of the Federal Republic of Yugoslavia’s non-membership status in the United Nations or, in other words, a kind of judicial notice of the fact established by the principal political organs in the exercise of their exclusive competence under the United Nations Charter, which, in the circumstances of the present case, operates as the jurisdictional fact of decisive importance. Resolutions of the United Nations General Assembly, like resolution 55/12, create an objective legal situation, a status with erga omnes effects. This fact is reflected in the effects of the Judgments of the Court by which such a status is established ad casum. 58. Judgments of the Court on the status issue, in their effect ratione personae, cannot, unlike other judgments, be limited to the Parties to a dispute. Their material effects surpass the effects of the judgment defined in Article 60 of the Statute. By the very nature of their object, judgments on status issues, which do not allow for uncertainty and insecurity, act intra partes. The effect of a judgment on status, i.e., the creation of an objective legal situation (situation légale objective), [FN33] is incorporated in the national laws of civilized nations. [FN34] ------------------------------------------------------------------------------------------------- [FN33] Dugguit, Traité de droit constitutionnel, 1923, Vol. II. [FN34] For instance, the novel Article 311 of the Code civil (law of 1972), see Vincent, op. cit., p. 108, No. 79; in Italian law it is traditionally considered that decisions on status matters act erga omnes - for examples of judgments by Italian courts, see Pugliese, op. cit., p. 888; British law has, in that sense, the special notion “judgments in rem” (see Bower, Turner and Handley, “The Doctrine of Res Judicata”, 1965, pp. 213 et seq.). ------------------------------------------------------------------------------------------------- However, this is not a question of the technical effect, under Article 59 of the Statute, of judgments on status issues intra partes but a question of the material, reflective effect of such judgments on third States. It is binding erga omnes not as a judicial act in the formal sense, but as a result of its intrinsic persuasive force, in parallel with the mandatory force of the judgment in the technical sense, based on the presumption of truthfulness - pro veritate accipitur - which must, in questions of status, as absolute law, have universal effect. This is especially valid for judgments of the Court, like the Judgment in the Legality of Use of Force cases, [p498] which, basically, merely gives judicial confirmation to the status conclusively determined by the competent organs of the United Nations (see Judgment, paras. 88 et seq.). 59. It seems crystal clear that the Respondent’s jus standi in casu is, as in the Legality of Use of Force cases, organically linked to its membership in the United Nations owing to the fact that the Respondent could not be considered to be a party to the Statute on any basis apart from that of being a Member State of the United Nations and to the fact that its jus standi cannot be based on the conditions set forth in Article 35, paragraph 2, of the Statute of the Court. The majority approach to this “twin” issue is truly astonishing. On the one hand, it is recognized that “in 1999 - and even more so in 1996 - it was by no means so clear as the Court found it to be in 2004 that the Respondent was not a Member of the United Nations” (Judgment, para. 131; emphasis added). On the other, “as a matter of law, no possibility that the Court might render ‘its final decision with respect to a party over which it cannot exercise its judicial function’, because the question whether a State is or is not a party subject to the jurisdiction of the Court is one which is reserved for the sole and authoritative decision of the Court . . . the operation of the ‘mandatory requirements of the Statute’ falls to be determined by the Court in each case before it; and once the Court has determined, with the force of res judicata, that it has jurisdiction, then for the purposes of that case no question of ultra vires action can arise, the Court having sole competence to determine such matters under the Statute” (Judgment, paras. 138 and 139). The reasoning suggests that quidquid judicii placuit, habet legis vigorem. It reflects the anachronistic and totally unacceptable idea that the Court is not the guardian but the creator of legality and, in fact, that the Court makes decisions independently from objective law established by its Statute. It nolens volens leads to the creation of the Court’s own, judicial reality in contrast to the objective legal one, producing a proper judicium illusorum. The erroneous perception of the res judicata rule embodied in this Judgment gives rise to an absurd ambivalence in respect of the Respondent’s status in the United Nations. In contrast to the erga omnes effects of General Assembly resolution 55/12, the Court’s Judgment is, as provided by Article 59 of the Statute,[p499] binding only on the Parties to the case. This logically means that in the context of the dispute before the Court the Respondent is considered, at least tacitly, to have been a United Nations member in the period 1992-2000 as far as the Court and the Applicant are concerned, whereas for the Organisation itself it was not a member and even for Bosnia and Herzegovina, it was not a member in respect of any other matter than this case itself. In addition, in the eyes of the Court, the Respondent is considered a member of the United Nations in the present case and a non-member in the Legality of Use of Force cases. 60. The pronouncement that “in 1999 - and even more so in 1996 - it was by no means so clear then as the Court found it to be in 2004 that the Respondent was not a Member of the United Nations”, opens a very unpleasant question of the activity of the Court in the present case in the light of the principle of bona fidae which, as a peremptory one, is at least equally valid for the Court as it is for States. If, for more than a decade, it was so clear to the Court that the Respondent was not a Member of the United Nations, and the quality of being a Member of the United Nations is the only basis on which the Respondent could have been considered a party to the Statute of the Court, it follows that the Court deliberately avoided recognizing the jurisdictional fact affecting the very legality of the totality of its actions in casu. Such a conduct of the Court could be termed judicial arbitrariness, close or in the zone of abuse of judicial power of the Court rather than judicial discretion resulting in judicial indecision. 6. 1992 Declaration 61. In its 1996 Judgment, the Court found jurisdiction ratione personae in the formal Declaration of 27 April 1992 adopted by the participants of the Joint Session of the SFRY Assembly, the National Assembly of the Republic of Serbia and the Assembly of the Republic of Montenegro. The Court perceived it as a unilateral act that produces legal consequences relevant as regards its jurisdiction ratione personae. This determination appears dubious and, it seems to me, requires reconsideration in the light of the relevant rules of international law and the jurisprudence of the Court, respectively. Namely, reconsideration not only as regards the presumption of the legal identity and continuity of the Respondent with the SFRY, which proved unacceptable by the international community and served as the basis for the finding of the Court, but also as regards the characterization of the nature and effects of the Declaration. [p500] 62. Did the Declaration adopted on 27 April 1992 meet the relevant requirements to be considered as a unilateral act producing legal consequences? 63. It seems obvious that the issue of an act by a single state cannot by itself qualify as a unilateral act capable of producing legal effects in foro externo. The unilateral nature of an act is but one extrinsic element which, when coupled with other elements, both extrinsic and intrinsic, forms a unilateral legal act in terms of international law. 64. In the circumstances of the case at hand a number of elements are of special relevance. The primary extrinsic element concerns the capacity of the participants in the Joint Session of the SFRY Assembly, the National Assembly of the Republic of Serbia and the Assembly of the Republic of Montenegro to perform unilateral acts in the sense of international law. The Joint Session of the SFRY Assembly, the National Assembly of the Republic of Serbia and the Assembly of the Republic of Montenegro was not constituted as the Parliament of the Federal Republic of Yugoslavia; rather it was a body of representatives in statu nascendi. Even if, arguendo, it represented the Parliament, it was obviously not a State organ possessing the capacity to perform unilateral acts on behalf of the State. Representatives of a State for purposes of formulating unilateral legal acts are heads of State, heads of Government and ministers of foreign affairs. [FN35] The rule has also been confirmed in the jurisprudence of the Court (Legal Status of Eastern Greenland, Judgment, 1933, P.C.I.J., Series A/B, No. 53, p. 22). Consequently, it appears that the Declaration, if designed as a unilateral legal act in foro externo, was issued by an incompetent organ under international law and, as such, produced no legal effects. [FN36] ------------------------------------------------------------------------------------------------- [FN35] Art. 4, Report on Unilateral Acts of States, Yearbook of the International Law Commission (YILC), 1998, II, Part One, doc. A/CN.4/486; United Nations doc. A/CN.4/500 and Add.1. [FN36] See Article 4 (Subsequent confirmation of an act formulated by a person not authorized for that purpose) in the Third Report of the Special Rapporteur, YILC, 2000, I, p. 96. ------------------------------------------------------------------------------------------------- 65. True, the Declaration, as the Court found, “was confirmed in an official Note of 27 April 1992 from the Permanent Mission of Yugoslavia to the United Nations, addressed to the Secretary-General.” (I.C.J. Reports 1996 (II), p. 610, para. 17) The word “confirmed” in the present context may have two meanings: a descriptive one in the sense that the letter from the Permanent Representative reproduced the text of the Declaration and a meaning as a “terminus technicus”, signifying confirmation of a unilateral act of an unauthorized State organ. Neither of these two possible meanings of the word “confirmed” can be accepted in concreto. [p501] In respect of the descriptive meaning of the word “confirmed”, it is obvious that the letter from the Permanent Representative [FN37] reproduces the text of the Declaration only in part, i.e., citing only a small part thereof relating exclusively to legal identity and continuity. ------------------------------------------------------------------------------------------------- [FN37] The text of the letter reads: “The Assembly of the Socialist Federal Republic of Yugoslavia, at its session held on 27 April 1992, promulgated the Constitution of the Federal Republic of Yugoslavia. Under the Constitution, on the basis of the continuing personality of Yugoslavia and the legitimate decisions by Serbia and Montenegro to continue to live together in Yugoslavia, the Socialist Federal Republic of Yugoslavia, consisting of the Republic of Serbia and the Republic of Montenegro. Strictly respecting the continuity of the international personality of Yugoslavia, the Federal Republic of Yugoslavia shall continue to fulfil all the rights conferred to, and obligations assumed by, the Socialist Federal Republic of Yugoslavia in international relations, including its membership in all international organizations and participation in international treaties ratified or acceded to by Yugoslavia.” (United Nations doc. A/46/915, Ann. I.) ------------------------------------------------------------------------------------------------- By definition, the limited powers held by heads of permanent missions to international organizations, including permanent missions to the United Nations, negate the possibility of the official Note of the Permanent Mission of Yugoslavia of 27 April 1992 being understood as “confirmation” of an act issued by an organ - if at the material point in time it was an organ - incompetent under international law to perform legal acts on behalf of the State. Hence, the proper characterization of the Note of the Yugoslav Permanent Mission of 27 April 1992 is that of a transmission of the Declaration followed by the corresponding reproduction of a part of the Declaration directly connected with the Federal Republic of Yugoslavia’s proclaimed legal identity with and continuation of the former SFRY vis-à-vis the United Nations. This characterization of the Note of the Yugoslav Permanent Mission suggests that the Declaration of 27 April 1992 and the Note of the Permanent Mission are two distinct, yet not totally separate, acts, both by their nature and by their effects. For its part, the Declaration is basically a general statement of policy with respect to matters directly or indirectly connected with the issue of the proclaimed legal identity and State continuity of the Federal Republic of Yugoslavia, while the Note seems to be primarily a notification in the standard sense. Evidence to this effect is found in the fact that the addressee of the Note was the Secretary-General, who was requested to circulate the Declaration and the Note as an official document of the General Assembly, [FN38] whereas the Declaration as such was addressed urbi et orbi. [p502] ------------------------------------------------------------------------------------------------- [FN38] United Nations doc. A/46/915. ------------------------------------------------------------------------------------------------- Several intrinsic elements of the Declaration merit attention in this particular context: its scope ratione materiae, the intention of the author of the Declaration and its possible effects. As regards its scope ratione materiae, the Declaration covers several different matters. The Declaration reads as follows: “The representatives of the people of the Republic of Serbia and the Republic of Montenegro, Expressing the will of the citizens of their respective Republics to stay in the common state of Yugoslavia, Accepting all basic principles of the Charter of the United Nations and the CSCE Helsinki Final Act and the Paris Charter, and particularly the principles of parliamentary democracy, market economy and respect for human rights and the rights of national minorities, Remaining strictly committed to a peaceful resolution of the Yugoslav crisis, Wish to state in this Declaration their views on the basic, immediate and lasting objectives of the policy of their common state, and on its relations with the former Yugoslav Republics. In that regard, the representatives of the people of the Republic of Serbia and the Republic of Montenegro declare: 1. The Federal Republic of Yugoslavia, continuing the state, international legal and political personality of the Socialist Federal Republic of Yugoslavia, shall strictly abide by all the commitments that the SFR of Yugoslavia assumed internationally. At the same time, it is ready to fully respect the rights and interests of the Yugoslav Republics which declared independence. The recognition of the newly-formed States will follow after all the outstanding questions negotiated on within the Conference on Yugoslavia have been settled, Remaining bound by all obligations to international organizations and institutions whose member it is, the Federal Republic of Yugoslavia shall not obstruct the newly-formed States to join these organizations and institutions, particularly the United Nations and its specialized agencies. The Federal Republic of Yugoslavia shall respect and fulfil the rights and obligations the SFR of Yugoslavia assumed vis-à-vis the territories of Krajina which have been placed, within the framework of the United Nations peace-keeping operation, under the protection of the world Organization. [p503] The Federal Republic of Yugoslavia also remains ready to negotiate, within the Conference on Yugoslavia, all problems related to the division of assets, which means both to assets and debts acquired jointly. In case of a dispute regarding these issues, the Federal Republic of Yugoslavia shall be ready to accept the arbitration of the Permanent Court of Arbitration in the Hague. The diplomatic and consular missions of the Federal Republic of Yugoslavia abroad shall continue without interruption to perform their functions of representing and protecting the interests of Yugoslavia. Until further notice, they shall continue to take care of all the assets of Yugoslavia abroad. They shall also extend consular protection to all nationals of the SFR of Yugoslavia whenever they request them to do so until a final regulation of their nationality status. The Federal Republic of Yugoslavia recognizes, at the same time, the full continuity of the representation of foreign states by their diplomatic and consular missions in its territory. The Federal Republic of Yugoslavia is interested in the reinstatement of economic, transport, energy and other flows and ties in the territory of the SFR of Yugoslavia. It is ready to make its full contribution to that end. The Federal Republic of Yugoslavia has no territorial aspirations towards any of its neighbours. Respecting the objectives and principles of the United Nations Charter and CSCE documents, it remains strictly committed to the principle of nonuse of force in settling any outstanding issues. The Federal Republic of Yugoslavia shall ensure the highest standards of the protection of human rights and the rights of national minorities provided for in international legal instruments and CSCE documents. In addition, the Federal Republic of Yugoslavia is ready to grant the national minorities in its territory all those rights which would be recognized to and enjoyed by the national minorities in other CSCE participating States. In its foreign relations, the Federal Republic of Yugoslavia shall be guided by the principles of the United Nations Charter, as well as the principles of CSCE documents, particularly the Paris Charter for New Europe. As the founding member of the Movement of non-aligned countries, it shall remain committed to the principles and objectives of the policy of nonalignment. It shall develop relations of confidence and understanding with its neighbours proceeding from the principle of good neighbour [p504] liness. The Federal Republic of Yugoslavia shall, as a State of free citizens, be guided in its democratic development by the standards and achievements of the Council of Europe, the European Community and other European institutions, with an orientation to join them in the foreseeable future.” (United Nations doc. A/46/915, Ann. I; emphasis added.) It appears that, if viewed in isolation, only a part of the Declaration - the extension of “consular protection to all nationals of the SFR of Yugoslavia” - is capable per se of producing, certain effects, under certain conditions. Although not addressed to third States, it can, in a broader context, be subsumed under the “power of auto-limitation which States enjoyed under international law, in other words, their ability in the exercise of their sovereignty to subject themselves to international legal obligations”. [FN39] ------------------------------------------------------------------------------------------------- [FN39] V. Rodrigues Cedeno, Special Rapporteur, YILC, 1998, II, Part Two, p. 53, para. 140. ------------------------------------------------------------------------------------------------- In the part of the Declaration concerning “commitments that the SFRY assumed internationally”, which is relevant for the assessment as to whether the Federal Republic of Yugoslavia could be considered bound by the Genocide Convention, things are, however, fundamentally different. 70. Can the formulation “shall strictly abide by all the commitments . . .” as such be understood as consent by the Federal Republic of Yugoslavia to be bound by the Genocide Convention? That interpretation appears totally erroneous in the light of the rule of interpretation of unilateral legal acts accepted in the Court’s jurisprudence. Where unilateral acts of States are to be interpreted, “declarations . . . are to be read as a whole” and “interpreted as a unity” (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, pp. 452-454, paras. 47 and 44). Further, unilateral acts “must be interpreted as [they stand], having regard to the words actually used.” (Anglo-Iranian Oil Co., Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 105). The intention of the author of the Declaration is of key concern, since “[w]hen it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking” (Nuclear Tests (Australia v. France, Judgment, I.C.J. Reports 1974, p. 267, para. 43; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 472, para. 46; Frontier Dispute, Judgment, I.C.J. Reports 1986, pp. 573-574, paras. 39-40; emphasis added). When States “make statements by which their freedom of action is to be limited, a restrictive interpretation is [p505] called for”(Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 267, para. 44; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, pp. 472-473, para. 47; emphasis added). 71. In the light of the rules of construction of unilateral legal acts, the question naturally arises whether the Federal Republic of Yugoslavia had the intention to assume obligations ex foro externo by the Declaration. 72. If the Declaration is read as a whole and interpreted as a unity, the answer must, it seems, be in the negative. It is set out in the introduction part that the participants in the Joint Session of the SFRY Assembly, the National Assembly of the Republic of Serbia and the Assembly of the Republic of Montenegro “wish to state in this Declaration their views on the basic, immediate and lasting objectives of the policy of their common state and its relations with the former Yugoslav Republics” (emphasis added). Statements of policy objectives are rarely found in the sphere of international law. In the Nicaragua case the Court, considering the issue as to whether any legal undertaking could be inferred from communications from the Junta of the Government of National Reconstruction of Nicaragua to the Secretary-General of the Organization of American States accompanied by the “Plan to secure peace”, found inter alia: “This was an essentially political pledge, made not only to the Organization, but also to the people of Nicaragua, intended to be its first beneficiaries. . . . This part of the resolution is a mere statement which does not comprise any formal offer which if accepted would constitute a promise in law, and hence a legal obligation.”(Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 132, para. 261; emphasis added.) Furthermore, if, ex hypothesi, the participants had intended the Declaration to produce legal effects, these effects would have been expressed as the confirmation or safeguarding of existing rights and obligations rather than as the assumption of obligations pro futuro. The interpretation of the Declaration “according to its own terms” “as they stand” inevitably leads to the conclusion, as also inferred by the Court itself, that the intention was “to remain bound by international treaties to which the former Yugoslavia was a party” (I.C.J. Reports 1996, p. 610, para. 17; emphasis added). And that pursuant to both legal considerations and the Declaration itself means the Federal Republic of Yugoslavia’s legal identity and continuity with the former SFRY. If, on the other hand, legal identity and continuity was a condition on which depended the status of the Federal Republic of Yugoslavia as a party to multilateral conventions, including the Genocide Convention, another highly relevant question emerges: namely, is the Declaration as such capable of producing legal [p506] effects without having been accepted, expressly or tacitly, by other international subjects, including the United Nations? Obviously not, because declarations, like other unilateral acts, used to carry out obligations in relation to treaties, are governed by the law of treaties as applied to the particular convention. In general, unilateral legal acts as such, being self-contained, are not in the nature of synallagmatic obligations which form the substance of treaties. 73. The Convention on the Prevention and Punishment of the Crime of Genocide (1948) stipulates in Article XI: “The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation to sign has been addressed by the General Assembly. The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations. After 1 January 1950, the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State which has received an invitation as aforesaid. Instruments of accession shall be deposited with the Secretary-General of the United Nations.” It would appear that ratification and accession are the sole means of expressing consent to be bound by the Convention. Article XI expresses the intention of the authors of the Convention: “The Secretariat’s draft provided as an alternative solution accessions only, on the theory that the approval of the Convention by the representatives of the governments in the General Assembly may obviate the necessity for signature. The ad hoc Committee, however, preferred the usual procedure of signature followed by ratification, for the original members.” [FN40] ------------------------------------------------------------------------------------------------- [FN40] N. Robinson, The Genocide Convention, 1949, p. 47. ------------------------------------------------------------------------------------------------- 74. It appears that the Court in addition strongly relied on the finding that: “it has not been contested that Yugoslavia was party to the Genocide Convention” (I.C.J. Reports 1996, p. 610, para. 17). However, that finding does not seem convincing in the light of the legal nature of the issue of jurisdiction (see paras. 41-44 above). [p507] 7. The issue of the respondent Party Serbia has been designated as the respondent Party on the basis of two premises: (i) the status of Serbia as the continuing State vis-à-vis the State Union of Serbia and Montenegro; and (ii) the view that the Republic of Montenegro as the successor State is ipso facto relinquished of any form of delictual responsibility. However, neither one of these two premises has been applied consistently. As regards the first premise, it seems clear that Serbia is the legal continuator of the State Union of Serbia/Montenegro. A delicate question, not even touched upon by the Judgment, is that of the legal status of Serbia and Montenegro from 2000 onwards. 75. At the end of the year 2000 the FRY, acting in the appropriate context, did two things: (i) renounced the continuity claim and accepted the status of successor State to the former SFRY; and (ii) proceeding on the bases of this new capacity - as the successor State - submitted an application for admission to membership in the United Nations. 76. The State, as a notion of international law, comprises two elements, i.e., has two facets: (i) statehood in the sense of the relevant attributes such as a defined territory, a stable population and sovereign power; (ii) legal personality, i.e., status as a subject of international law equipped with a corpus of rights and obligations. In the light of the relevant circumstances, the legal personality of the Federal Republic of Yugoslavia can be either inferential and derivative in nature - based on legal identity with and continuation of the Socialist Federal Republic of Yugoslavia - or inherent and original in nature - based on status as a new State. 77. By submitting an application for admission to membership in the United Nations, Yugoslavia not only renounced the claim to legal identity and continuity; it sought at the same time to be recognized as a new State, one with a different legal personality - a successor State as opposed to the partial continuation of the former Socialist Federal Republic of Yugoslavia - from the one claimed until the year 2000. In fact, it accepted the claim qualified as the claim put forward by the international community when the Federal Republic of Yugoslavia was formally proclaimed in April 1992. A claim which the relevant international organizations and States, acting individually or in corpore as members of organizations, did not however implement either formally or substantively. Instead, they opted for solutions based on pragmatic political considerations [p508] rather than on considerations under international law. Thus arose a legal “Rashomon” as to Yugoslavia’s juristic character - was it a new State or the old State? And as to its status in the United Nations - was it a Member of the United Nations or not? 78. Yugoslavia’s admission to membership of the United Nations from 1 November 2000 also meant acceptance of its claim to recognition as a new State, in the sense of a new international personality different from its controversial, hybrid personality in the period 1992-2000. The claim was accepted by way of a series of collateral agreements in simplified form, or a general collateral agreement in simplified form, between the Federal Republic of Yugoslavia, on the one hand, and the Member States of the United Nations and the world Organization itself, on the other, embodied tacitly in the letter and spirit of General Assembly resolution 55/12 and subsequent consistent practice of the Organization (exempli causa, the letter of the Under-Secretary-General and Legal Counsel of the United Nations of 8 December 2000 and the list of Member States with the dates of their admission to the United Nations (United Nations Press Release ORG/1317 updated 18 December 2000). The subject of the series of collateral agreements, or of the general collateral agreement, is in fact recognition of the Federal Republic of Yugoslavia as a new personality, a personality being the successor State of the former SFRY, and its admission in that capacity to the world Organization as a Member. Thus, Yugoslavia, although the “old State” in the statehood sense, was universally recognized as a “new State” in the sense of its international legal personality. In view of the fact that recognition of a State has ex definitione retroactive effect, it necessarily follows that all pronouncements and decisions taken relate to the FRY claiming continuity with the SFRY. And, as the Federal Republic of Yugoslavia after the year 2000, its legal existence as a new international legal personality started in November 2000 with its admission to membership of the United Nations. The second premise, on the other hand, has not been consistently followed in relation to the Republic of Montenegro. It has been applied to parts of the Judgment, but not to the Judgment as a whole. Thus, the Republic of Montenegro must immediately take effective steps to ensure full compliance with its obligation under Articles I and VI of the Convention on the Prevention and Punishment of the Crime of Genocide to punish acts of genocide as defined by Article II of the Convention, or any of the other acts proscribed by Article III of the Convention, and to transfer individuals accused of genocide or any of those other acts for trial by the International Criminal Tribunal for the former Yugoslavia, and to co-operate fully with the Tribunal. Incidentally, this fact, too, could be taken [p509] as evidence of oversensitivity to the factual and political aspect of the whole matter. PART II. SUBSTANTIVE ISSUES I. Genocide Convention as Applicable Law 1. Genocidal intent as conditio sine qua non of the crime of genocide 79. A genocidal act can exist only under conditions defined by the body of law established by the Convention. Acts enumerated in Article II, in subparagraphs (a) to (e), are not genocidal acts in themselves, but only the physical or material expression of specific, genocidal intent. In the absence of a direct nexus with genocidal intent, acts enumerated in Article II of the Convention are simply punishable acts falling within the purview of other crimes, exempli causa war crimes or crimes against humanity. 80. Genocide as a distinct crime is characterized by the subjective element - intent to destroy a national, ethnical, racial and religious group as such - an element which represents the differentia specifica distinguishing genocide from other international crimes with which it shares substantially the same objective element. [FN41] In the absence of that intent, whatever the degree of atrocity of an act and however similar it might be to the acts referred to in the Convention, that act can still not be called genocide. [FN42] ------------------------------------------------------------------------------------------------- [FN21] N. Robinson, The Genocide Convention, 1949, p. 15; Drost, Genocide, II, 1959, p. 82; Study of the Question of the Prevention and Punishment of the Crime of Genocide, prepared by N. Ruhashyankiko, Special Rapporteur, doc. E/CN.4, Sub.2/416, 4 July 1978, para. 96; Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, prepared by Mr. B. Whitaker, doc. E/CN.4/Sub.2/1985/6 (2 July 1985), paras. 38-39. [FN22] Official Records of the General Assembly, Third Session, Part I, Sixth Committee, 69th meeting. ------------------------------------------------------------------------------------------------- 81. It appears that four elements are distinguishable within genocidal intent: (a) the degree of the intent; (b) destruction; (c) a national, ethnical, racial or religious group; (d) in whole or in part. Although separate, the four elements make up a legal whole characterizing in their cumulative effect, genocidal intent as the subjective element of the crime of genocide. The absence of any of them disqualifies the intent from being genocidal in nature. As a legal unity, these elements, taken in corpore, demonstrate that genocidal intent is not merely something added to physical acts capable of destroying a group of people. It is an integral, permeating quality of these acts taken individually, a quality that transforms them from simple punishable acts into genocidal acts. In [p510] other words, such intent is a qualitative feature of genocide distinguishing it from all other crimes, indeed its constituent element stricto sensu. 82. Genocidal intent is genuine in nature. It is not simply a guilty mind, but a mind guilty of destruction of a religious, ethnic, national or racial group as such. The distinguishing feature of genocidal intent is not that it is discriminatory because that is only its most general characteristic shared with, for instance, crimes against humanity. But, whereas in the case of persecution, an act of crime against humanity, discriminatory intent can take multifarious inhumane forms and manifest itself in a mul-tiplicity of actions, including murder, in the case of genocide, an extreme and the most inhumane form of persecution, that intent must be accompanied by the particular intent to destroy in whole or in part the group to which the victims belong. [FN43] “Mens rea” in the realm of the crime of genocide is complex and must not be reduced to the standard form of mens rea required for criminal offences. It encompasses two levels - the mens rea as the pendant to the actus reus, i.e., an act constituting genocide pursuant to Article II (subparas. (a), (b), (c), (d) or (e)) and the “intent to destroy” a protected group as such, the specific intent inherent in genocide. It is therefore rightly stressed that “guaranteeing the rule of law and the respect for the principle nullum crimen sine lege require that ‘the two intents’ ought to be strictly separated when it comes to prove the facts necessary to establish the innocence or guilt of an accused”. [FN44] In addition, both parts of mens rea are characterized by the existence of two components - conscience (la conscience; Wissen) and will (la volonté; Wollen). In their various expressions they offer four different kinds of mens rea, in descending order of seriousness - dolus specialis, dolus directus, dolus indirectus (indirect intent) and dolus eventualis (conditional intent), which, in general terms, correspond to intention, recklessness and criminal negligence in the common law). Mens rea as the pendant to the acts constituting the material element - the actus reus -of the crime should exist in the form of dolus directus. This means that the perpetrator is conscious of the effect of the act (intellectual element) and has the will to commit the act (voluntary or emotional element). ------------------------------------------------------------------------------------------------- [FN43] ICTY, Prosecutor v. Kupreškic, Trial Judgment, para. 636. [FN44] Triffterer, “Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such”, Leiden Journal of International Law, Vol. 14, No. 2, 2001, p. 400. ------------------------------------------------------------------------------------------------- 2. Degree of intent 83. In terms of degree, the intent to destroy the group, as dolus [p511] specialis, is at the very top of the hierarchy of culpable mental states. As such, it excludes culpa, dolus eventualis (recklessness) or negligence. [FN45] The crime of genocide is “unique because of its element of dolus specialis (special intent)”, [FN46] which is in fact the constituent element of the crime of genocide. The degree of dolus specialis means that it is not sufficient that the accused “knows that his acts will inevitably, or . . . probably, result in the destruction of the group in question, but that the accused must seek the destruction in whole or in part, of a . . . group”. [FN47] ------------------------------------------------------------------------------------------------- [FN45] Cassese, Genocide in the Rome Statute of the International Criminal Court, 2002, I, p. 338. [FN46] ICTR, Prosecutor v. Kambanda, No. ICTR-97-23-S, 4 September 1998, para. 16. [FN47] ICTY, Prosecutor v. Jelisic, paras. 85-86. ------------------------------------------------------------------------------------------------- In other words, special intent is characterized by the voluntary element, the purposeful and active will to destroy the protected group. Knowledge of the natural and foreseeable consequences of the acts performed is not per se sufficient to constitute the intent to destroy. It must be accompanied by the desire to destroy the groups; this is an additional requirement in the structural sense and a dominant one in the normative sense. In order for these to be genocide the acts prohibited in Article II of the Convention must be committed with “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. 3. Destruction 84. Under Article II of the Convention, the expression “to destroy” means the material (physical and biological) type of genocide. Physical genocide is addressed in subparagraphs (a), (b) and (c), whereas biological genocide is covered by subparagraph (d). In subparagraphs (a) and (c) the matter seems self-evident. Whereas the act of killing is a clear modus operandi of physical genocide, [FN48] the expression “physical destruction” employed in subparagraph (c) rules out the possibility of any interpretation to the effect that infliction on the group of any conditions of life other than those leading to the physical destruction of the group may represent an act of genocide. The word “deliberately” was included there to denote a precise intention, i.e., premeditation related to the creation of certain conditions of life. [FN49] According to the travaux préparatoires, such acts would include “putting of a group . . . on a regimen of insufficient food allocation, reducing required [p512] medical attention, providing insufficient living accommodation, etc.”, [FN50] which results in slow death in contrast to immediate death under subparagraph (a) of Article II. The differentia specifica between the act of killing and the imposing of destructive conditions of life is, consequently, primarily expressed in the modalities of destruction - the latter case does not involve the temporal immediacy of killing as the means (modus operandi) of extermination but does result in extermination over time. ------------------------------------------------------------------------------------------------- [FN48] Killing of members of the group as the material element in subparagraph (a) is shown if the victim has died and the death resulted from an unlawful act or omission (ICTR, Prosecutor v. Akayesu, No. ICTR-96-4-T, 1998, para. 589). [FN49] A/C.6/SR.82, p. 3; N. Robinson, op. cit.,p.16. [FN50] N. Robinson, op. cit.,p.18. ------------------------------------------------------------------------------------------------- The legislative history of subparagraph (b) also demonstrates that the authors of the Convention understood “serious bodily or mental harm” to be a form of physical genocide. Physical suffering or injury without lethal consequences falls within the ambit of crimes against humanity and torture. [FN51] The expression “mental harm”, on the other hand, has a specific meaning in subparagraph (b). It was included at the insistence of China. Explaining the proposal by reference to the acts committed by Japanese occupying forces against the Chinese nation through the use of narcotics, China pointed out that, although these acts were not as spectacular as mass murders and the gas chambers of Nazi Germany, their results were no less lethal. [FN52] Accordingly, not every bodily or mental injury is sufficient to constitute the material element of genocide, but, as stated by the International Law Commission, “it must be serious enough to threaten group destruction”, [FN53] as destruction is understood in the Convention, i.e., physical and biological destruction. ------------------------------------------------------------------------------------------------- [FN51] ICTY, Prosecutor v. Delalic´ et. al., Trial Judgment, p. 511. [FN52] Official Records of the General Assembly, Third Session, Part I, Sixth Committee, 69th meeting, pp. 59-60. [FN53] Draft Code of Crimes against the Peace and Security of Mankind, Official Records of the General Assembly, Fifty-first Session, Supplement No. 10, United Nations doc. A/ 51/10 (1996), Art. 17. ------------------------------------------------------------------------------------------------- Acts such as sterilization of women, castration, prohibition of marriages, etc., subsumed under “measures intended to prevent birth within the group”, constitute biological genocide. The extreme gravity of measures imposed to prevent births within the group with a view to annihilating the group’s national biological power is the criterion for differentiating between the genocidal act defined in subparagraph (b) and measures which may be taken against the will of members of a group within the framework of family planning and birth control programmes, measures which are sometimes descriptively called “genocide by another name” or “black genocide”. [FN54] ------------------------------------------------------------------------------------------------- [FN54] M. Treadwell, “Is Abortion Black Genocide?”, Family Planning Perspectives, Vol. 4, No. 4/1986, p. 24. ------------------------------------------------------------------------------------------------- 85. Prima facie only the act of forcible transfer of children of the [p513] group to another group does not fit into the concept of physical/biological genocide as defined in the Convention. However, it should be emphasized that the act of forcible transfer of children has been included in acts constituting genocide with the explanation that it has physical and biological effects since it imposes on young persons conditions of life likely to cause them serious harm, or even death. [FN55] In that sense, it is of considerable importance that the proposal to include cultural genocide in the Convention also has been understood to cover a number of acts which spiritually destroy the vital characteristics of a group, as observed in particular in forcible assimilation. The proposal was rejected on a vote of 26 against and 16 in favour with 4 abstentions. [FN56] Hence, it appears reasonable to assume that the underlying rationale of subparagraph (e) is “to condemn measures intended to destroy a new generation, such action being connected with the destruction of a group that is to say with physical genocide”. [FN57] Even if it is accepted that the act covered by subparagraph (e) constitutes “cultural” or “sociological” genocide, its meaning is in concreto of limited importance. Primo, as such it would be an exception to the rule regarding material genocide embodied in Article II of the Convention and, therefore, would be subject to restrictive interpretation. Secundo, the Applicant does not refer to “forcible transfer of children” as an act of genocide allegedly committed on its territory. ------------------------------------------------------------------------------------------------- [FN55] A/C.6/242. [FN56] Official Records of the General Assembly, Third Session, Part I, Sixth Committee, 83rd meeting, p. 206. [FN57] Study of the Question of the Prevention and Punishment of the Crime of Genocide, prepared by N. Ruhashyankiko, Special Rapporteur (E/CN.4/Sub.2/415, p. 25. ------------------------------------------------------------------------------------------------- It follows that the difference between the act of killing members of the group and other acts constituting the actus reus of the crime of genocide is in the modalities rather than in the final effects. In that sense, the explanation given by the ICTR in the Akayesu case seems proper. It describes the act defined in subparagraph (c) of Article II of the Genocide Convention as “methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction”, [FN58] i.e., the so-called slow death. ------------------------------------------------------------------------------------------------- [FN58] ICTR, Prosecutor v. Akayesu, para. 505. ------------------------------------------------------------------------------------------------- There are two basic legal issues in the interpretation of the word “destruction”: (a) whether the destruction must take place in reality, i.e., be actual; and, (b) the scope of destruction. 88. Regarding the actual nature of destruction, there is some degree of difference among the various acts enumerated in Article II of the Convention. [p514] The act of “killing” implies actual destruction in terms of the proven result achieved. In that sense, the death of the victim is the essential element of the act of killing. Concerning this element, a vast and nearly uniform jurisprudence has been developed by both Tribunals, at least declaratively, in that, for example, in the Krstic case, the “missing” are treated as “dead”. [FN59] ------------------------------------------------------------------------------------------------- [FN59] ICTY, Celebici, Appeal Judgment, paras. 422-423; Blaškic, Trial Judgment, para. 217; Kupreškic, Trial Judgment, paras. 560-561; ICTR, Kayishema, Trial Judgment, para. 140; Akayesu, Trial Judgment, para. 588; ICTY, Krstic, Trial Judgment, para. 485. ------------------------------------------------------------------------------------------------- In contrast to killing, acts of serious bodily or mental harm, and acts of forcible transfer of children, do not imply actual destruction, but a corresponding result, expressed in grievous bodily or mental harm and transfer of children respectively, and leading to destruction. In other words, in these two acts, the required result has a causal connection, in which the effect is deferred, with destruction. The infliction of destructive conditions of life and the imposition of measures to prevent births, however, do not require any proof of a result; they represent, themselves, the result. For the sake of balance, and of legal security, however, in respect of such acts the intent requirement is more stringent, since they, unlike the acts for which a specific result is required, must be undertaken “deliberately” and must be “calculated”, in the case of infliction of destructive conditions on the group, and must be “intended” to prevent births, in the case of the imposition of measures. 89. The intrinsic differences among the acts enumerated in Article II of the Convention in their relation to the destruction of the protected group as the ultimate ratio leges of the Convention require a particularly cautious approach in the determination of the actus reus of the crime of genocide. In contrast to “killing”, all other acts constituting an actus reus of genocide, falling short of causing actual destruction, merely have the potential capacity to a greater or lesser extent, to destroy a protected group. Legally, this makes them more akin to an attempt to commit genocide. In reality, these acts, therefore, may be seen more as evidence of intent than as acts of genocide as such. Of course, from the standpoint of criminal policy, genocide may be characterized as any form of denial of a group’s right to survive; the 1948 Convention is indeed a Convention on the Prevention and Punishment of Genocide, but still it is a fact that the line between acts short of actual destruction and attempts to commit genocide may be invisible, especially at the decision-making time. [p515] For the proper application of the Law on Genocide, as embodied in the Convention, acts of genocide, or more precisely the methods and means of execution of acts of genocide short of actual destruction, must be evaluated strictly, not only from the subjective but also from the objective standpoint. The last point of view concerns basically the capability of a particular action or actions to produce genocidal effects. In other words, the destructive capacity in terms of material destruction must be discernible in the action itself, apart from in tandem with the intention of the perpetrator. 3.1. Scope of destruction 90. As far as the required scope of destruction is concerned, two criteria emerged in the emerging case-law of the Tribunals. One implies the destruction of the group in terms of the sheer size of the group and its homogenous numerical composition, the so-called quantitative approach. As a rule, it is presented in the form of a “substantial” part, which means “a large majority of the group in question”. [FN60] ------------------------------------------------------------------------------------------------- [FN60] ICTY, Prosecutor v. Jelišic´, Trial Judgment, p. 26, para. 82. ------------------------------------------------------------------------------------------------- The second criterion, however, contemplates the destruction of the elite or of the leadership of the group, which are considered to be of substantial importance for its existence. For this criterion, it is considered sufficient “if the destruction is related to a significant section of the group, such as its leadership”. [FN61] ------------------------------------------------------------------------------------------------- [FN61] ICTY, Prosecutor v. Stakic´, Trial Judgment, p. 149, para. 525; ICTY, Prosecutor v. Krstic, Trial Judgment, para. 587. ------------------------------------------------------------------------------------------------- Alternatively, the qualitative and quantitative scope of the destruction cannot possibly fit into the genus proximum of the crime of genocide; moreover, it conflicts with the logical considerations. It is not clear how two by nature diametrically opposite criteria may ensure the sound administration of justice in the specific case. A possible consequence of their combined application might merely be the relativization, due to the disintegration of the constitutive elements of the crime of genocide, of the protection offered by the Convention to the national, ethnic, religious or racial groups. The intention to destroy a group is divided, in the event of the application of both criteria, between the “intention to destroy a group en masse” and the intention to destroy “a more limited number of persons selected for the impact that their disappearance would have upon the survival of the group . . .”. [FN62] Introducing the characterization of genocide, even when the intent to exterminate covers only a limited geographic area, particularly allows for subjective and arbitrary delimitations. It could be said that “this degree of indeterminacy [p516] places genocide on the outermost boundaries of the nullem crimen sine lege principle”.[FN63] ------------------------------------------------------------------------------------------------- [FN62] ICTY, Prosecutor v. Jelišic´, Trial Chamber, para. 82. [FN63] P. Akhavan, “Contributions of the International Criminal Tribunals for the Former Yugoslavia and Rwanda to the Development of Definitions of Crimes against Humanity and Genocide”, American Society of International Law Proceeding, April 2000, p. 283. ------------------------------------------------------------------------------------------------- In the choice between quantitative and qualitative criteria, it is difficult to find a reason for giving preference to the qualitative criterion. First of all, the criterion of “leadership” is ambiguous and subjective. It is not clear whether it applies to the political, military or intellectual elite, or whether it has a generic meaning. It also introduces through the back door the consideration that the leaders of the group, regardless of the type of leadership, are subject to special, stronger protection than the other members of the group, in whole or in part, that they constitute, which is in fact a distinct subgroup. Moreover, this criterion has an element of the concealed promotion of the political group to the status of a protected object of the Convention - the subsequent division of the members of the group into elite and ordinary members in modern society has an anachronistic and discriminatory connotation flagrantly at odds with the ideas, which represent the bases of the rights and liberties of individuals and groups. Last but not least, comes understanding part of the group in terms of its leadership, of which there is no trace in the travaux préparatoires of the Convention. Contrary to the so-called qualitative criterion, the quantitative criterion is characterized by objectivity, which derives from its very nature. According to the Law of Big Numbers, in its application, it includes, as a rule, the members of the group to which the qualitative criterion is applied as a parameter of the intent to destroy. It is also more appropriate to the spirit and letter of the Convention, which takes the group as such as the ultimate target or intended victim of the crime. 3.2. The object of destruction 91. The object of destruction is a “national, ethnical, racial or religious group as such”. The qualification expresses the specific collective character of the crime. It lies within the common characteristics of the victims - belonging to national, ethnic, racial or religious group - as an exclusive quality by reason of which they are subjected to acts constituting actus reus of genocide. The genocide is directed against a number of individuals as a group or at them in their collective capacity and not ad personam as such (passive collectivity element). The International Law Commission expressed the idea by saying that: “the prohibited [genocidal] act must be committed against an individual because of his membership in a particular group and as an incremental step in the overall objective of destroying the group . . . [p517] the intention must be to destroy the group ‘as such’, meaning as a separate and distinct entity, and not merely some individuals because of their membership in a particular group”. [FN64] ------------------------------------------------------------------------------------------------- [FN64] Official Records of the General Assembly, Fifty-first Session, Supplement No. 10, United Nations doc. A/51/10/1996, at p. 88; emphasis added. ------------------------------------------------------------------------------------------------- The ICTY determines relevant protected groups as groups that “may be identified by means of the subjective criterion of the stigmatisation of the group, notably by the perpetrators of the crime”. [FN65] ------------------------------------------------------------------------------------------------- [FN65] ICTY, Prosecutor v. Brdjanin, Trial Judgment, para. 683; ICTY, Prosecutor v. Krstic, Trial Judgment, para. 557; ICTY, Prosecutor v. Jelišic´, Trial Judgment, para. 70. ------------------------------------------------------------------------------------------------- 92. The subjective criterion in the determination of a “national, ethnic, racial or religious” group is one thing, subjectivism is another. The subjective criterion as an alternative to, or in combination with the objective one, is the legal criterion established both in international and municipal law as regards national, ethnic, religious or racial groups on the basis of the fact that they roughly correspond “to what was recognized, before the Second World War, as ‘national minorities’”.[FN66] This includes, as Schabas rightly notes, “races” and “religious groups” [FN67] whose meaning has not provoked significant controversies. In relation to ethnic groups, it is the expression, which, in contemporary usage, seems to assume the meaning of a synthetic expression for “national minorities”, “races” and “religious” groups. [FN68] It was applied by the ICTR in the Akayesu case. The Tribunal found that the Hutus and the Tutsis were “considered both by the authorities and themselves as belonging to two distinct ethnic groups”. [FN69] ------------------------------------------------------------------------------------------------- [FN66] ICTY, Prosecutor v. Krstic, Trial Judgment, para. 556; ICTR, Prosecutor v. Rutaganda, Trial Judgment, para. 56; ICTR, Prosecutor v. Kajelijeli, Trial Judgment, para. 811. [FN67] W. Schabas, Genocide in International Law, p. 113. [FN68] Ibid. [FN69] ICTR, Prosecutor v. Akayesu, para. 122, footnote 56; emphasis added. ------------------------------------------------------------------------------------------------- In contrast, the “stigmatisation of the group” by the perpetrators of the crime [FN70] appears to introduce subjectivism into the determination of the protected group rather than properly applying the subjective criterion as such. Its cumulative effects might be characterized as the nullification of the legal substance of the crime of genocide in one of its constitutive elements - the element of protected groups - which changes from a “national, ethnic, racial or religious” group as such into an abstract, human collectivity determined subjectively. Thus the difference between the groups protected under the Genocide Convention and those, such as [p518] political groups, which are not considered protected groups, may be lost. As a consequence, the configuration of international crimes is being eroded because the physical acts by which war crimes, crimes against humanity and genocide are committed, are basically the same. Moreover, personal stigmatization as the criterion for the determining of the protected group may nullify the objective existence of the “national, ethnic, racial or religious” group and introduce into the context of the protected groups, those groups that are excluded from the scope of the Genocide Convention. ------------------------------------------------------------------------------------------------- [FN70] ICTY, Prosecutor v. Nikolic, Rule 61, Decision, para. 27; ICTY, Prosecutor v. Krstic, Trial Judgment, para. 557; ICTY, Prosecutor v. Jelišic´, Trial Judgment, para. 70; emphasis added. ------------------------------------------------------------------------------------------------- 93. The cumulative negative effects of the stigmatization of the perpetrator as the relevant criterion derive from the incongruity, and even open conflict, of this criterion with the generally accepted legal principles and cogent legal considerations. Primo, the constitutive elements of genocide are a matter of objective law. As objective law, even regardless of its legal force, they cannot, save in the event of an explicit provision to the contrary, be determined by the perpetrator of a crime. It is completely unknown in the province of international criminal law as well as comparative criminal law for the perpetrator of an offence to be in a position to determine the scope of the offence committed. The scope of an offence is a matter of a norm of objective law and not of the perpetrator’s personal value-judgment. The determination of a “national, ethnic, racial or religious” group, as an element of the crime of genocide in the perpetrator’s personal value-judgment is in irreconcilable conflict with the very essence of legal reasoning in the province of criminal law. The qualification “as such” in the formulation of Article II of the Convention affirms that the “national, ethnic, racial or religious” group is a matter of objective reality and not of the personal value-judgment of the perpetrator. Secundo, by a judicial finding based on the perpetrator’s personal value-judgment, any court of law, in the event of discrepancy between the subjective criterion of stigmatisation and the “national, ethnic, racial or religious group” as such, creates a virtual judicial reality at variance with the objective reality contemplated in Article II of the Convention. Moreover, its possible consequence may be identification as a targeted group - a group that even does not exist in reality. [FN71] ------------------------------------------------------------------------------------------------- [FN71] W. Schabas, op. cit., p. 110. ------------------------------------------------------------------------------------------------- Tertio, the subjective criterion alone may not be sufficient to determine the protected group under the Genocide Convention, for the acts enumerated in subparagraphs (a) to (e) of the Convention must be directed against “members of the group”. [FN72] ------------------------------------------------------------------------------------------------- [FN72] Ibid., p. 111. ------------------------------------------------------------------------------------------------- Quatro, in the case of several perpetrators, the criterion of stigmatization [p519] can easily lead to uneven, substantively different, identifications of the relevant groups. Quinto, the perpetrator’s perception of the “national, ethnic, racial or religious” group, if inappropriate, creates error in personam which per se disqualifies genocidal intent. It is a general principle of criminal law that any person who, while committing a criminal offence, is unaware that a circumstance is part of the legal elements, does not act intentionally. Criminal liability for negligent action, however, remains unaffected. Sixto, it confers excessive discretionary powers on the Court. Considering the nature of the perpetrator’s perception, it might be said that they go as far as discretio generalis. The weak points of the subjective criterion are also demonstrated by the jurisprudence of both Tribunals. In the Brdjanin case the ICTY stated expressis verbis that “[t]he correct determination of the relevant protected group has to be made on a case-by-case basis, consulting both objective and subjective criteria”. [FN73] For instance, the ICTR stated, as the objective criterion for the identification of Tutsis, the identification cards indicating ethnic belonging (identification by others) or the subjective criterion of the members of targeted groups (self-identification). [FN74] Consequently, it is of paramount importance that the subjective criterion, if applied at all in its “stigmatization” form, must be conceived within the framework of objective legal standards derived from the letter and spirit of the relevant provisions of the Genocide Convention respecting standards established in the corpus of national minorities law. ------------------------------------------------------------------------------------------------- [FN73] ICTY, Prosecutor v. Brdjanin, Trial Judgment, para. 684; Thus also the ICTR in the Semanza Trial Judgment, para. 317; ICTR, Prosecutor v. Kajelijeli, Trial Judgment, para. 811; emphasis added. [FN74] ICTR, Prosecutor v. Kayishema, Trial Judgment, paras. 90, 98. ------------------------------------------------------------------------------------------------- It appears that the criterion of stigmatisation not only cannot be the sole criterion; it cannot even be the primary criterion for the determination of the “national, ethnic, racial or religious” group within the framework of the Genocide Convention. It is rather a personal perpetrator’s confirmation of the existence of the protected group, and not its creation. It is interesting to note that in the case of war crimes and crimes against humanity, the ICTY applied the objective criterion for the determination of protected groups. [FN75] ------------------------------------------------------------------------------------------------- [FN75] Jones, pp. 69, 94. ------------------------------------------------------------------------------------------------- Basically, the stigmatization of the group understood in that way is of evidential significance as one of the elements for inference of genocidal intent. 96. The “[n]ational, ethnic, racial or religious” group, at least in cases [p520] where the State in whose territory the alleged crime of genocide occurred, recognizes the existence of these groups as distinct and separate entities, should be determined on the basis of the criteria established by the internal law of that State. Or on the basis of international treaties in force to which the relevant State is a Party. In a way, one is dealing here with a renvoi or reference of the matter to the internal law of Bosnia and Herzegovina. Both because international law has no generally accepted precise criteria for the determination of “national, ethnic, racial or religious” groups and because of the fact that the case concerned actually invoked entities from the internal law and society of Bosnia and Herzegovina. Or, if not a strict renvoi to internal law, then at least cognizance of groups that exist under the internal law of Bosnia and Herzegovina and the criteria on the basis of which they have been determined. One more reason for this is the fact that the ICTY itself, when it saw fit, relied on domestic law in determining the elements of international crimes. The application of the subjective criterion suffers from objective limitations deriving primarily from the basic meaning of the “national, ethnic, racial or religious” group as such. Although the Convention does not offer an explicit definition of these groups, it appears that the basic meaning of the expressions used is relatively clear. The attributes “national”, “ethnic”, “religious”, “racial”, although lacking a precise, universally accepted determination, possess recognizable, generic substance by themselves, elaborated to a certain extent also in other international conventions (exempli causa, the International Convention for Elimination of All Forms of Racial Discrimination). The lack of specific distinguishing marks - differentia specifica - between these four groups, which may consequently result in their overlapping, cannot have a substantive negative effect on the proper application of the Genocide Convention, for their general generic recognizability clearly shows which groups are not protected under the Convention, or “carries” within itself the exclusion effect, thus preventing the creation of new protected groups outside the frame of “national, ethnic, racial or religious” groups. This is clearly demonstrated just in Bosnia and Herzegovina. 97. The Applicant asserts that in the present case protected groups under the Genocide Convention are - the “Bosnian people” (Application, Memorial of Bosnia and Herzegovina, 2.2.1.2), “mainly Muslim” (ibid., 2.2.2.1), “Muslim population” (ibid., 2.2.5.13), “national, ethnical or religious groups (within, but not limited to, the territory of the Republic of Bosnia and Herzegovina), including in particular the Muslim population” (ibid., Submission under (1), non-Serb population (Reply of Bosnia and Herzegovina, 7); the “People and State of Bosnia and Herzegovina” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional [p521] Measures, Order of 8 April 1993, I.C.J. Reports 1993,p.4, para. 2; ibid., Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 332. As the protective object of genocide, “national, ethnical, religious or racial” groups must be precisely determined. The determination requirement is of overall significance both in the procedural and in the substantive sense. The expression “non-Serbs” in the ethnic, national or religious environment of Bosnia and Herzegovina has a rather broad and vague meaning, incapable of being incorporated into the frame of “national, ethnical, religious or racial” group as defined by the Genocide Convention. As a general expression encompassing different groups, it runs counter to the essential requirement for the protected group to constitute a separate and distinct entity. Besides Muslims and Croats, the expression necessarily comprises other groups. Not only Yugoslavs, Jews and Roma, but also Montenegrins who were represented in the ethnic and national make-up of Bosnia and Herzegovina as well. As Montenegrins are the leading ethnic community in Montenegro, a former federal unit of the Respondent, it follows that the expression “non-Serb” implies that the Respondent is also charged with alleged auto-genocide. Moreover, the expression includes Serbs in BiH, the relatively largest number of whom declared themselves as Yugoslavs. The expression “Bosnian people” is based on individuals’ citizenship link with the State of Bosnia and Herzegovina as the objective criterion for the determination of the “national group”. However, the term “Bosnians” does not exist in terms of the “national, ethnic, racial or religious” group, because it reflects the notion of a “national group” in the “political-legal” sense, [FN76] inapplicable to the rights of States such as Bosnia and Herzegovina which make a distinction between the notions of “nationality” and “citizenship”. In that regard, the characterization “Bosnian people” nullifies the existence of different ethnic, national and religious groups in Bosnia and Herzegovina and as such might be characterized as a discriminatory one. The same applies mutatis mutandis to the “Bosnian population”. ------------------------------------------------------------------------------------------------- [FN76] N. Ruhashyankiko, Special Rapporteur, doc. E/CN.4, Sub. 2/416, 4 July 1978, paras. 56-61. ------------------------------------------------------------------------------------------------- The formulation “mainly Bosnian Muslims”, whether conceived as a “people” or “population” is closest to the notion of “national, ethnic, racial or religious” group in terms of the Genocide Convention although it does not correspond in toto to the strict requirements of the Convention’s formulation of “a national, ethnic, racial or religious group as such” (emphasis added). The term “as such” clearly indicates that the destruction of a group as a distinct and separate entity is the object of [p522] genocide. The plain and natural meaning of the formulation “mainly Bosnian” is that the object of the alleged genocide was not Bosnian Muslims as such, as a distinct and separate entity. Furthermore, it means that acts committed against individuals were not directed at them as the personification of a relevant group, in their collective capacity, which is the true, intrinsic, characteristic of genocide. Short of that condition, the criminal intent cannot be characterized as genocidal, in the normative milieu of the law on genocide, as jus strictum. It appears that none of the determinations of the protected group given by the Applicant meets the requirements embodied in the formula “national, ethnic, racial or religious group as such” at least in the proceedings before the International Court of Justice characterized, inter alia, by the fundamental principle of non ultra petita. As the Court stated in the Asylum case: “One must bear in mind the principle that it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions” (Judgment, I.C.J. Reports 1950, p. 402). In addition, it should be noted that the Applicant, in its submissions in the Memorial, subsumes under protected groups “national, ethnical or religious groups within, but not limited to the territory of Bosnia and Herzegovina . . .” (Memorial, Part 7, Submission under (1)). In its final submission the Applicant requested the Court to adjudge and declare that Serbia and Montenegro “has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by intentionally destroying in part the non-Serb national, ethnical or religious group within, but not limited to, the territory of Bosnia and Herzegovina, including in particular the Muslim population” (Agent Softic, CR 2006/37, p. 59, para. 1; emphasis added). 98. As regards its procedural significance, the Application, as stated in Article 38, paragraph 2, “shall . . . specify the precise nature of the claim”. The determination of the group protected is, in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), the relevant part of the claim as a whole. In the substantive sense, the protection of the “national, ethnic, racial or religious” group is ratio legis of the Convention. An improper determination of the group protected may have far-reaching consequences in the proceedings before the Court. In contrast to the criminal court, this [p523] Court, in the performance of its judicial function, is subject, inter alia, also to the fundamental principle of non ultra petitum. Accordingly, the Court, not being in a position to substitute itself for the party, in the adjudication of the matter is bound by the determination of the protected group given by the Applicant (P.C.I.J., Series A, No. 7,p.35; Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 262-263, paras. 29-30; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, pp. 466-467, paras. 30-31). The intent to destroy a group “as such” means the intent to destroy the group as a separate and distinct entity. It follows from the fact that the act of genocide constitutes not just an attack on an individual, but also an attack on the group with which the individual is identified. The group in terms of a separate and distinct entity may, as a matter of principle, be determined either in a positive or a negative manner. The jurisprudence of the ICTY is generally against the so-called negative criteria. The negative definition of the group, based on the exclusion formula, has inherent limits in its application. In principle, it is suitable for determining the protected group in terms of a separate and distinct entity in bi-ethnic or, under certain conditions, in tri-ethnic communities, although the question remains open as to whether the negative definition as such is the proper form for the legal determination of matters which belong to jus strictum or rather simply a descriptive one. In multi-ethnic communities consisting of more than three national, ethnic or religious groups, the negative definition is totally incapable of properly determining the protected group under the Convention. The exclusion principle as the operative principle of the negative definition is clearly powerless to determine the protected group as a distinct and separate group. 4. “As such” 99. The words “as such” are, regarding a “national, ethnic, racial or religious” group in terms of the Genocide Convention - a qualification of a characterization. They establish another aspect of the requirement of intent - that the intent to destroy be directed at the group as a protected group. [FN77] ------------------------------------------------------------------------------------------------- [FN77] Lipman, “The 1948 Convention on the Prevention and Punishment of the Crime of Genocide: Forty-five Years Later”, Temp. Int. Law and Comp. Law Journal, 7-9/1994, pp. 22-24, note 38. ------------------------------------------------------------------------------------------------- The group itself is the ultimate target or intended victim of the crime of genocide. But in order to achieve the overall objective of destroying the group, it is essential for the act to be committed against individuals constituting [p524] the group as the direct victims. The fact that the individuals constituting the group are intentionally subject to acts which constitute the actus reus of genocide is, however, not sufficient per se in the light of the qualification “as such”. As the Trial Chamber stated in the Krstic case: “Mere knowledge of the victims’ membership in a distinct group on the part of perpetrators is not sufficient to establish an intention to destroy the group as such”. [FN78] ------------------------------------------------------------------------------------------------- [FN78] ICTY, Prosecutor v. Krstic, Trial Judgment, para. 561. ------------------------------------------------------------------------------------------------- To qualify as genocidal, the intention must be aimed at individuals who constitute the group in their collective capacity, the capacity of members of the protected group whose destruction is an incremental step in the realization of the overall objective of destroying the group. The qualification “as such” serves also as differentia specifica between discriminatory intent as suggestive of an element of the crime of persecution, which also may have, as its target for genocidal intent, a racial, excluding ethnic, group. [FN79] ------------------------------------------------------------------------------------------------- [FN79] ICTY, Prosecutor v. Brdjanin, Trial Judgment, para. 992; ICTY, Prosecutor v. Krnojelac, Appeal Judgment, para. 185. ------------------------------------------------------------------------------------------------- As a consequence, if prohibited acts under Article II of the Convention targeted a large portion of a protected group such acts would not constitute genocide if they were a part of a random campaign of violence or general pattern of war. It may be assumed that such an understanding influenced this Court to find in the incidental procedure of provisional measures in the Legality of Use of Force cases, that “the bombings . . . indeed entail the element of intent, towards a group as such, required by the provision” (Art. II of the Genocide Convention; I.C.J. Reports 1999, p. 138, para. 40). For “the continued bombing of the whole territory of the State, pollution of soil, air and water, destroying the economy of the country, contaminating the environment with depleted uranium” (Legality of Use of Force (Yugoslavia v. Belgium), CR 99/14, p. 30, 10 May 1999, Agent Etinski) could have been included in the creation of destructive living conditions at least as much as the forced displacement, encirclement of towns or starvation. The intent behind the acts undertaken was defined by General Wesley Clark as follows: “We’re going to systematically and progressively attack, disrupt, degrade, devastate, and ultimately, unless President Milosevic com [p525] plies with the demands of the international community, we’re going to destroy his forces and their facilities and support”, [FN80] or, as Michael Gordon in his article entitled “Crisis in the Balkans” quoted the words of General Short saying that he: “hopes that the distress of the Yugoslav public will undermine support for the authorities in Belgrade”. And he continued: “I think no power to your refrigerator, no gas in your stove, you can’t get to work because the bridge is down . . .”. [FN81] ------------------------------------------------------------------------------------------------- [FN80] BBC News, http://news.bbc.co.uk/1/hi/special_report/1998/kosovo2/303641.stm. [FN81] New York Times, 13 May 1999, “Crisis in the Balkans”, http://select.nytimes.com/ gst/abstract.html ?res=F10711FE3A5B0C708DDDAC0894D1494D81. ------------------------------------------------------------------------------------------------- 100. The provision of Article II of the Convention according to which genocide means the destruction of a group “in whole or in part” is not without ambiguities. It is not quite clear whether the qualification “in part” applies to the scope of the intent, or to the scope of the act. A grammatical interpretation would suggest that the qualification “in part” concerns both elements of the crime - objective and subjective. Such an interpretation, however, does not seem completely satisfactory, mainly because the discriminatory intent is the most general characteristic of the intent to destroy. Namely, it implies that the discriminatory intent is expressed doubly and unequally - on the one hand on the “national, ethnic, religious or racial” group as a distinct and separate entity, and, on the other hand, within that entity, treating some of its parts as if they were distinct and separate entities. In other words, if the qualification “in part” applied only to the scope of intent, it would mean, as the ultimate result of such an interpretation, that a part of a group is a distinct entity within the group to which it belongs. The basic idea underlying the Genocide Convention is the protection of the right to existence of entire human groups, which ex definitione implies the protection of its parts as small groups as well. The intent to destroy a part of a group is, in fact, ratione personae a limited, actual projection of the intent to destroy a group as a whole, dictated by an appropriate factual occasion, rather than by different attitudes toward parts of the protected group. As noted by Professor Pellet “l’élément subjectif du génocide, le mens rea, c’est-à-dire l’intention génocidaire, ne peut être que global” (CR 2006/10, p. 47, para. 21). [p526] 5. The meaning of ethnic cleansing under the Convention 101. In the case at hand the expression “ethnic cleansing” is used in a number of senses: (i) to mean an act constituting an actus reus of the crime of genocide; (ii) as a synonym or euphemism for the crime of genocide; (iii) as substratum or factual matrix for inferences of genocidal intent as the subjective element of the crime of genocide. 102. The situation is clear as to “ethnic cleansing” as an act constituting an actus reus of genocide. Acts constituting the actus reus of genocide are listed a limine in Article II of the Convention. Article II of the Convention does not include “ethnic cleansing” as an act of genocide. In the course of the drafting of the Genocide Convention, there were proposals, it is true, to place the subsumed acts under the heading ethnic cleansing as the sixth act of genocide. But these proposals were not accepted. Syria submitted an amendment [FN82] to include the imposition of “measures intended to oblige members of a group to abandon their homes in order to escape the threat of subsequent ill-treatment” as an actus reus of genocide. The amendment was supported by the Yugoslav representative, Bartos, citing the Nazi displacement of the Slav population from a part of Yugoslavia as an action “tantamount to the deliberate destruction of a group”. He added that “genocide could be committed by forcing members of a group to abandon their homes”. [FN83] ------------------------------------------------------------------------------------------------- [FN82] United Nations doc. A/C.6/234. [FN83] United Nations doc. A/C.6/SR.82. ------------------------------------------------------------------------------------------------- The amendment was, however, rejected by a clear majority of 29 votes against and 5 in favour with 8 abstentions, [FN84] the explanation having been offered that it deviated too much from the concept of genocide. [FN85] Specifically discussing the contention that forced displacement practised by the Nazis was tantamount to the deliberate destruction of a group, the Soviet representative Morozov emphasized that this was consequence, not genocide itself. [FN86] ------------------------------------------------------------------------------------------------- [FN84] Ibid. [FN85] Maktos (United States of America), Fitzmaurice (United Kingdom), ibid. [FN86] Ibid. ------------------------------------------------------------------------------------------------- The exhaustive listing of the acts constituting the actus reus of genocide is the proper and cogent expression of the fundamental principle of criminal law, domestic or international: nullum crimen, nulla poena sine lege. During the debate in the Sixth Committee, two amendments were submitted [FN87] proposing the adoption of an illustrative definition of acts of [p527] genocide. After discussion the amendments were rejected on the basis of the argument that an exhaustive enumeration was necessitated by the fundamental principle nulla poena sine lege. It was also observed that an advantage of the exhaustive enumeration method was that it allowed for the subsequent amendment of the Convention by the addition of further acts to the enumeration. [FN88] ------------------------------------------------------------------------------------------------- [FN87] United Nations docs. A/C.6/232/Rev.1 and A/C.6/223 and Corr.1. [FN88] N. Ruhashyankiko, Special Rapporteur, doc. E/CN.4, Sub. 2/416, 4 July 1978, op. cit., p. 14. ------------------------------------------------------------------------------------------------- It should be noted that at no time during the drafting Statutes of the two ad hoc tribunals or the Rome Statute of the International Criminal Court was it even proposed to expand the list of acts or to deem the enumeration in Article II of the Convention to be non-exhaustive. The intrinsic, highly complex structure of “ethnic cleansing” also militates against its inclusion among acts of genocide. It encompasses acts belonging to different genera of international crimes that accompany acts which, although violative of internationally recognized human rights, are not per se punishable (see paragraph 103 below). 103. The Applicant equates genocide and “ethnic cleansing”. Exempli causa, in its Reply, the Applicant contends that “the campaign of ethnic purification is indeed tantamount to a further campaign of European genocide in this century . . .” (Reply, para. 703, Chap. 5, Sect. 9 - The Policy of Ethnic Cleansing). This is not an isolated perception. In the confirmation of the second indictment against Karadžic and Mladic - the Srebrenica indictment (IT-95-18-I) of 16 November 1995 - Judge Mahmud Riad says, although more cautiously, that “[t]he policy of ethnic cleansing . . . presents in its ultimate manifestation, genocidal characteristics”. [FN89] ------------------------------------------------------------------------------------------------- [FN89] W. Schabas, “‘Ethnic Cleansing’ and Genocide: Similarities and Distinctions”, European Journal of Minority Rights, Vol. 3, 2003/4, pp. 111-112. ------------------------------------------------------------------------------------------------- The answer to the question as to whether genocide and “ethnic cleansing” can be equated is twofold: formal and substantive. Although the term “ethnic cleansing” emerged immediately after the end of the Second World War as a “direct descendant of the expressions, in particular the term ‘Säuberung’ (cleansing)”, [FN90] used by the Nazis in their “hygiene programmes”, it did not find a place in the Genocide Convention, not even as an act that would constitute an actus reus of genocide (see Article II of the Convention) or as a synonym for “genocide”. ------------------------------------------------------------------------------------------------- [FN90] For other views to that effect, see Schabas, op. cit., p. 113. ------------------------------------------------------------------------------------------------- Hence the use of “ethnic cleansing” instead of the term genocide implies, from a formal point of view, a redefinition of “genocide” as accepted in the Genocide Convention. Terms used in legislative acts, in particular conventions, such as the Genocide Convention, which lay [p528] down objective law with the force of jus cogens are not ordinary terms subject to redefinition on the basis of one-sided, subjective assessment or agreement being a part of the substantive law established by the Genocide Convention. Forming a legal whole with the substantive provisions of the Convention, the terminus technicus “genocide” can be changed or replaced by some other term only pursuant to legal procedure analogous to that for amending provisions of the Convention. In the substantive sense, equating genocide and “ethnic cleansing” may be reasonable only where the latter overlaps in totto with the relevant constituent elements - both material and subjective - of the crime of genocide. There is one common denominator in numerous definitions of “ethnic cleansing”; it is expressed in terms of the goal towards which the perpetrator aspires. In that regard, one can take as the basic definition the one given by the Special Rapporteur Mazowiecki in his Sixth Report. According to the Report, “ethnic cleansing may be equated with the systematic purge of the civilian population based on ethnic criteria, with the view of forcing it to abandon the territories where it lives”. [FN91] The Commission of Experts in their first Interim Report of 10 February 1993 also adopted the same line of reasoning - “ethnic cleansing means rendering an area ethnically homogeneous by using force and intimidation to remove persons of given groups from the area”. [FN92] Consequently, the genus proximus of “ethnic cleansing” should be sought in creating ethnically homogenous areas by forcing the inhabitants to leave their homes. The fundamental difference between genocide and ethnic cleansing lies precisely in this point. Whereas genocide involves the extermination of the protected groups, “ethnic cleansing”, if perceived as a crime per se, involves the expulsion of the population from a given, as a rule disputed, territory. It follows that, whereas the prohibition of genocide has as its object protecting the physical and biological existence of a group, the prohibition of “ethnic cleansing”, if perceived as a crime per se, would have as its object preventing the expulsion of groups. ------------------------------------------------------------------------------------------------- [FN91] Sixth Mazowiecki Report II, at p. 44, point 283; emphasis added. [FN92] United Nations doc. S/25274. ------------------------------------------------------------------------------------------------- It follows that, in terms of the subjective element, genocide is characterized by the intent to destroy the targeted group, whereas “ethnic cleansing” is characterized by the intent to expel or remove the civilian population or persons belonging to given groups. [p529] A further difference lies in the acts by which genocide and “ethnic cleansing” are committed. It appears that “ethnic cleansing” comprises a variety of acts substantially different by nature and effect. The acts said to be acts of “ethnic cleansing” can, grosso modo, be divided into two main groups: (a) The first group is made up of acts punishable under international law, such as massive deportation, detention and ill-treatment of civilian population, shooting at selected civilian targets, mass displacement of communities, rape, summary executions, deliberate attack on and blocking of humanitarian aid, deliberate shelling of civilian targets (especially water and transport facilities, means of communication), taking hostages and detention of civilians for exchange, attack on refugee camps. [FN93] (b) The second group comprises acts which, while illegal, because they violate individuals’ or groups’ rights lying within the corpus of internationally recognized human rights, are not per se punishable under international criminal law. [FN94] ------------------------------------------------------------------------------------------------- [FN93] First Mazowiecki Report I, p. 4, points 15, 16; Fourth Mazowiecki Report II, pp. 8-9, points 26, 29; Sixth Mazowiecki Report II, p. 5, point 13; Fifth Mazowiecki Report II, p. 4, point 15. [FN94] Exempli causa, administrative measures like removal of lawfully elected authorities - Third Mazowiecki Report I, p. 8, point 17 (a); dismissal from work - First Mazowiecki Report I, p. 3, point 12; constant identity checking of members of minority ethnic groups - Third Mazowiecki Report I, p. 8, point 17; disconnection of telephones - Fifth Mazowiecki Report II, p. 12, point 84; forced labour, very often including work on the front lines of armed conflict - Fifth Mazowiecki Report II, p. 12, point 84, etc. ------------------------------------------------------------------------------------------------- It follows that acts effecting “ethnic cleansing” are different by nature insofar as “ethnic cleansing” takes on the traits of a plastic omnibus expression rather than those of a coherent, lege artis structured criminal offence. As such, “ethnic cleansing” seems to be a non-technical term “used by soldiers, journalists, sociologists, social scientists and others to describe a phenomenon which is not defined by law”. [FN95] The actions by which “ethnic cleansing” is carried out would possess the latter characteristic only if there were a norm of international law prohibiting the ethnic re-composition (or a deliberate change in the ethnic composition) of a territory by any means - admissible or inadmissible - whatsoever (including, for instance, the granting of benefits or material advantages to certain [p530] persons or groups of persons to induce them to abandon the given territory). ------------------------------------------------------------------------------------------------- [FN95] K. Mulaj, Ethnic Cleansing in the Former Yugoslavia in the 1990s: A Euphemism for Genocide ?, p. 696. ------------------------------------------------------------------------------------------------- In this context, it does not seem to be of decisive importance whether a “policy of ethnic cleansing” or a “campaign of ethnic cleansing” is in question. Because “ethnic cleansing” of a given territory is hardly possible without a plan and the co-ordinated action of a considerable number of people or State institutions. Perceived in the sense of a “policy” or “campaign”, ethnic cleansing is, in fact, but the expression or evidence of intention to expel or remove groups from the territory. As a “policy” or “campaign”, it is by nature systematic and widespread, because without these attributes “ethnic cleansing” is not feasible in practical terms. Simultaneous use of these expressions is, to begin with, a pleonasm (for example, “deliberate policy”), which neither adds to nor takes away from the substantive legal definition of “ethnic cleansing” as the removal or expulsion of a group from a given territory. Although “ethnic cleansing” as such is not an actus reus of genocide under the Genocide Convention, let alone a synonym or euphemism for genocide, this does not mean that certain acts of “ethnic cleansing” are not capable of being means or methods of committing acts of genocide. The possibility of overlap between acts of genocide and acts of “ethnic cleansing” does not, however, establish a legal nexus between or the identity of these two notions. It is rather the expression of an inherent instrumental capability of individual physical acts to produce consequences that, in their concrete manifestations, fit into the genus of the crime of genocide or ethnic cleansing or some other crimes such as a crime against humanity or war crime. Accordingly, what is involved here is the general instrumental capability of certain physical acts to produce consequences whose legal characterization within the configuration of punishable acts under international law must be determined on the basis of the specific characteristics - material and subjective - of international crimes taken individually. Indeed, the objective elements, for instance, of crimes against humanity and the crime of genocide “may undoubtedly overlap to some extent. ............................. Killing members of an ethnic or religious group may as such fall under both categories. The same holds true for causing serious bodily or mental harm to members of a racial or religious group, or even for the other three classes of genocide. However, crimes against humanity have a broader scope, for they may encompass acts that [p531] do not come within the purview of genocide, for instance, imprisonment and torture”. [FN96] ------------------------------------------------------------------------------------------------- [FN96] The Rome Statute of the ICC: A Commentary, I, 2002, ed. by A. Cassese, P. Gaeta and J. Jenes, p. 339. ------------------------------------------------------------------------------------------------- In other words, these two categories of crimes are “reciprocally special in that they form overlapping circles which nevertheless intersect only tangentially”. [FN97] ------------------------------------------------------------------------------------------------- [FN97] Ibid. ------------------------------------------------------------------------------------------------- Equally, the same objective elements can also be assimilated to specific war crimes. [FN98] ------------------------------------------------------------------------------------------------- [FN98] Interim Report of the Commission of Experts Established Pursuant to Security Council resolution 780 (1992), United Nations doc. S/35374 (1993), para. 56. ------------------------------------------------------------------------------------------------- Reasoning viewing any of the physical acts without regard to the totality of specific characteristics - material and subjective - of international crimes basically ignores the difference between the various kinds of international crimes, so that, exempli causa, “incendiary bombing of Hamburg, Dresden and Tokyo, and the atomic bombings of Hiroshima and Nagasaki may constitute both genocide and war crimes”, since “[t]he distinctive feature of pattern bombing is that the entire population of a city becomes the target of annihilatory assault”. [FN99] ------------------------------------------------------------------------------------------------- [FN99] L. Kuper, Theoretical Issues Relating to Genocide: Uses and Abuses in Genocide: Conceptual and Historical Dimension, ed. by G. I. Andreopulos, p. 34. ------------------------------------------------------------------------------------------------- 104. In principle, the fact that “ethnic cleansing” is carried out, inter alia, by physical acts which are also capable of resulting in the commission of the crime of genocide allows for “ethnic cleansing” as a substratum or factual matrix for inference of genocidal intent. This, however, does not signify that genocidal intent may automatically be deduced from proof that “ethnic cleansing” has occurred, since identical punishable physical acts cannot per se be equated with acts of a particular crime. Exempli causa, mass killings as physical acts may constitute the actus reus of crimes against humanity, genocide or war crimes. An act of a particular crime, a concrete physical act, acquires a legal characterization within the framework of the totality of the legal characteristics forming the body of the particular crime. As regards a possible inference of genocidal intent from proven ethnic cleansing, it appears that “ethnic cleansing” as such cannot be the proper legal substratum for inference of genocidal intent. Owing to the difference between genocide and ethnic cleansing, only those acts of ethnic cleansing which are punishable and capable of producing genocidal effects can be taken as the components of a legal substratum for establishing the existence of genocidal intent by inference. In that regard there is no dif-ference whatsoever between acts of ethnic cleansing and any other punishable [p532] acts possessing the instrumental capability to produce genocidal effects. Inference as such implies in concreto the application of the proper standard of proof in relation to the constitutive elements of genocidal intent. It appears that the ICTY jurisprudence also offers no basis for equating ethnic cleansing with genocide. This conclusion is suggested by both an affirmative and a negative analysis of the jurisprudence of the Tribunal. From the negative standpoint, out of roughly a dozen indictments for ethnic cleansing, the Tribunal convicted only General Krstic for complicity in genocide. The case is, however, specific and requires special treatment (see paras. 151-153 below). The affirmative analysis of the ICTY jurisprudence in this sense follows, on the other hand, from the Tribunal’s legal reasoning on the matter. For instance, in the Jelisic case, the Prosecution asserted that Jelisic was “an effective and enthusiastic participant in the genocidal campaign” against the group, which was significant “not only because it included all the dignitaries of the Bosnian Muslim community in the region, but also because of its size”. [FN100] The Trial Chamber, however, although finding that “the murders committed by the accused are sufficient to establish the material element of the crime of genocide and it is a priori possible to conceive that the accused harboured the plan to exterminate an entire group” (Jelisic, Trial Chamber Judgment, para. 100) the Trial Chamber adjudged that “In conclusion, the acts of Goran Jelisic are not the physical expression of an affirmed resolve to destroy in whole or in part a group as such. All things considered, the Prosecutor has not established beyond all reasonable doubt that genocide was committed in Brcko during the period covered by the indictment. Furthermore, the behaviour of the accused appears to indicate that, although he obviously singled out Muslims, he killed arbitrarily rather than with the clear intention to destroy a group. The Trial Chamber therefore concludes that it has not been proved beyond all reasonable doubt that the accused was motivated by the dolus specialis of the crime of genocide. The benefit of the doubt must always go to the accused and, consequently, Goran Jelisic must be found not guilty on this count.” [FN101] ------------------------------------------------------------------------------------------------- [FN100] ICTY, Prosecutor v. Jelisic, Oral Ruling of 19 October 1999, p. 1. [FN101] ICTY, Prosecutor v. Jelisic, Judgment, Trial Chamber, paras. 107-108. ------------------------------------------------------------------------------------------------- To the same effect, see Rule 61 Decision in the Karadžic and Mladic case. [p533] The Trial Chamber mandated in this case an investigation to establish whether “the pattern of conduct of which it is seised, namely ‘ethnic cleansing’, taken in its totality, reveals such a genocidal intent”. [FN102] ------------------------------------------------------------------------------------------------- [FN102] Karadžic and Mladic case, Rule 61, Decision of 11 July 1996, para. 94. ------------------------------------------------------------------------------------------------- 105. The District Court of Jerusalem, in its judgment in the Eichmann case, offered a subtle legal explanation of the difference between “ethnic cleansing” and genocide. Considering the Nazis anti-Semitic policy, the Court found that until 1941 that policy, a combination of discriminatory laws and acts of violence, such as Kristalnacht of 9-10 November 1938, substantially corresponded to what is nowadays called “ethnic cleansing”. Until that time, the Nazi policy towards Jews, although based on various forms of persecution, did not qualify as a genocidal one, given that it allowed emigration from Germany, albeit under discriminatory conditions. From mid-1941 onwards, that policy, according to the Court’s finding, took the form of the “Final Solution” in the sense of total extermination, connected with the cessation of emigration of Jews from territories under German control. [FN103] Eichmann was acquitted of genocide for acts committed prior to August 1941, since there remained a doubt as to whether there was the intention to exterminate before that date. And the acts committed against Jews until that date were subsumed by the Court under the heading crimes against humanity [FN104] in contrast to the acts committed after that date, characterized by the Court as genocide. ------------------------------------------------------------------------------------------------- [FN103] A. G. Israel v. Eichmann, 1968, 36 ILR 5 (District Court Jerusalem, para. 80). [FN104] Ibid., paras. 186-187, 244 (1-3). ------------------------------------------------------------------------------------------------- II. Application of the Genocide Convention in Casu 106. There are three basic, dubious points in the approach of the majority of the Court as regards substantive issues: (i) perception of the judicial task of the Court in casu, including the approach to the ICTY jurisprudence relevant for the subject of the dispute; (ii) interpretation of the duties of the Contracting Parties stemming from the Genocide Convention; and (iii) treatment of the issue of the responsibility of the Contracting Parties in the matter of genocide. [p534] 1. General remarks about possible approaches of the Court in casu 107. The judicial task of the Court in casu appears to be unique and unprecedented and, as such, burdened with challenges and difficulties. Grosso modo the Court faced, at least theoretically, a couple of options. Primo, to substitute itself for the criminal court and to judge whether genocide has been committed in Bosnia and Herzegovina, as is claimed by the Applicant. A basis for this option, which is peculiar and surprising, might perhaps, be sought in the findings of the Court in the Judgment on Preliminary Objections, in which the Court, ruling on the Respondent’s fifth preliminary objection, held that Article IX of the Convention “does not exclude any form of State responsibility” (I.C.J. Reports 1996, p. 616, para. 32). If, therefore, a State may be responsible for genocide in terms of criminal law, it is not clear why the Court, at the basis of such an interpretation of Article IX of the Convention, could not proceed as a criminal court. In other words, to ascertain, in proper proceedings, which, admittedly was not the case here, the legal requirements, both objective and subjective, of the crime of genocide analogous to a criminal court as regards individual perpetrations. In that scenario, therefore, the Court would limit itself to the issue of genocide allegedly committed by the Respondent, and would not enter ab initio into an examination of whether the genocide was committed by natural persons - an issue within the competence of the ICTY. Secundo, to engage in a decision on the Applicant’s claim of so-called factual genocide, assessing the result of the actions committed during the civil war in Bosnia and Herzegovina, more or less irrespective of the legal requirements of the crime of genocide enshrined in Article II of the Genocide Convention on the basis, as the counsel of the Applicant stated, of “common knowledge, ...a terriblegenocide...was perpetrateduponthenon-Serb populations of Bosnia and Herzegovina” (CR 2006/9, p. 50, para. 2 (Condorelli)) or on the basis of inference not based on proper facts but on “common logic and intuition” (CR 2006/33, p. 41, para. 16 (Franck)). Tertio, adhering to its position of civil court to adjudge upon the Applicant’s claim, relying primarily, if not exclusively, on the jurisprudence of the ICTY as the only judicial findings on the question at issue at the international level. Since the judgments of the ICTY do not have binding force as regards the Court, it would mean that the Court would adopt a corresponding decision by treating findings of the ICTY, be they findings of facts or of law, as evidence which should be evaluated in the light of the legal requirements of the crime of genocide as defined by the Genocide Convention and [p535] relevant standards of the legal reasoning established by this Court on this matter. In any event, it appears that the primary duty of the Court in casu lay in the strict observance of the Convention on Genocide as the relevant law, both for the sake of legality and for the preservation of the normative integrity of crimes and offences constituting international criminal law. 108. As regards the legality aspect, the competence of the Court in the case at hand is based on Article IX of the Genocide Convention, which envisages the solution of disputes between the contracting parties regarding the “interpretation, application or fulfilment of the present Convention . . .” (emphasis added). Therefore, not on the basis of the law on genocide in abstracto, but on the basis of the Convention itself. This fact is of the utmost importance, if we bear in mind that the law on genocide established by the Convention tractu temporis included certain modifications in terms of progressive development only in the core element of the crime - both mens rea and actus reus. There is no need to say that the progressive development, achieved particularly in the jurisprudence of two ad hoc tribunals, is irrelevant in casu, for in disputes such as this the Court’s task is to apply the law of genocide as established by the Convention. Such an approach by the Court would also have a collateral positive effect in terms of the actual judicial policy of the World Court as the judicial guardian of international law, in concreto of its own area, international criminal law, for the preservation of the normative integrity of the international crimes and offences ascertained. Indeed an overly broad interpretation of the constitutive elements of the crime of genocide, made with good, yet extra legal intentions in the doctrine [FN105] sometimes appears in the judicial reasoning of the two tribunals tending to amalgamate the crimes against humanity, and especially persecution and extermination, and war crimes, even common human rights offences into genocide as a single umbrella crime, solely on the basis of their repetition or accumulation. So, counsel of the Applicant, Professor Stern, is of the opinion that “an accumulation of crimes against humanity can result in genocide . . .” (CR 2006/7, [p536] p. 42, para. 113). We thus come to the phenomenon of the trivialization of genocide. [FN106] ------------------------------------------------------------------------------------------------- [FN105] Exempli causa, “Although it is important to acknowledge rape as a crime against humanity, classifying it as genocide is essential in order to prompt state intervention. States are generally not required to intervene when there are violations or crimes against humanity; when acts of genocide occur, however, customary international law imposes a duty to intervene” (MacKinnon, “Rape, Genocide and Human Rights”, 17 Harvard Women’s Law Journal, 1994, p. 5.) [FN106] W. Schabas, Genocide in International Law, p. 114. ------------------------------------------------------------------------------------------------- The intrinsic meaning of the trivialization of genocide is expressed in the dilution of the proper legal substance of genocide established by the Convention, on the one hand, and the ruining of the configuration of international crimes and offences as autonomous legal notions on the other. In that context, the idea underlying the concept is in conflict with one of the relevant rules of interpretation - the rule of effectiveness, according to which a provision or part of a provision cannot be considered as if it were superfluous and pointless [FN107] and also with the principle of normative economy (économie des notions) for any legal system within the confines of two concepts of rules that fulfil essentially the same function or bear divergently on any one situation. [FN108] ------------------------------------------------------------------------------------------------- [FN107] ICTY, Prosecutor v. Tadic, Appeal Judgment, para. 284. [FN108] Ibid., separate opinion of Judge Abi-Saab, p. 2. ------------------------------------------------------------------------------------------------- 109. The majority of the Court has, however, taken the course that is both parum et nimium. It is parum as regards the approach towards the ICTY jurisprudence relevant for the determination of the crime of genocide, both in normative and in legal terms. The approach of the majority basically comes down to the treatment of the said part of the ICTY jurisprudence as a matter that is not subject to judicial evaluation by the Court, at least not in a substantive sense. As a consequence, the relevant parts of the Court’s Judgment, and in particular Part VII, entitled “Responsibility of the Respondent for Srebrenica”, are in fact a general verification of the relevant part of the ICTY jurisprudence. It appears, however, that the interests of the sound administration of justice and even the substantive legality of the proceedings, before the highest international court declared itself competent to deal with accusations of the crime of genocide, implied a judicial evaluation of the ICTY findings, perceived as a proper evidence of the relevant matter, and the standards of legal reasoning applied to the ICTY, both as regards the applicable law and the conclusions reached. The law applied by the ICTY as regards the crime of genocide cannot be considered equivalent to the law of genocide established by the Convention. In this regard, the jurisprudence of the ICTY can be said to be a progressive development of the law of genocide enshrined in the Convention, rather than its actual application. Article 4 of the ICTY Statute is but a provision of the Statute as a unilateral act of one of the main political organs of the United Nations that is, by its wording, reciprocal to [p537] Article II of the Convention. In view of the fact that it does not contain any renvoi to the Genocide Convention, the provision cannot change its nature simply by reproducing the text of Article II of the Convention. Consequently, interpretations of Article 4 of the Statute on the basis of the travaux préparatoires of the Convention, on which the ICTY amply draws, are essentially misleading. Both in terms of the actual approach used and of substance, considering that the rules of treaty interpretation and interpretation of unilateral acts do not necessarily coincide. As stated expressis verbis by the Trial Chamber, the Judgment in the Krstic case is based on the “customary international law at the time the events in Srebrenica took place”. [FN109] That fact has two consequences. ------------------------------------------------------------------------------------------------- [FN109] ICTY, Prosecutor v. Krstic, Trial Judgment, para. 541. ------------------------------------------------------------------------------------------------- On the one hand, the characterization of genocide in customary international law as perceived by the ICTY and in the Genocide Convention is not necessarily identical. On the other, the basis of the jurisdiction necessarily affects the applicable law. Where jurisdiction is based on a compromissory clause in a treaty, the Court is empowered only to apply a specific treaty. The legal reasoning of the ICTY is far from consistent. For instance, as regards the determination of genocidal intent by inference, the reasoning in the Stakic´ case, on the one hand, and in the Krstic case on the other, seems to be in sharp contradiction. [FN110] ------------------------------------------------------------------------------------------------- [FN110] ICTY, Prosecutor v. Stakic´, Trial Judgment, para. 553; ICTY, Prosecutor v. Brdjanin, Trial Judgment, paras. 981, 978-979; ICTY, Prosecutor v. Krstic, Trial Judgment, paras. 594-595. ------------------------------------------------------------------------------------------------- 110. The approach of the majority is at the same time also nimium in terms of the superfluous but is not solidly based. Refraining from an autonomous judicial evaluation of the jurisprudence of the ICTY, the majority, by a highly risky operation, also rendered more complicated the interpretations of the duty to prevent geno-cide in legal terms, including the “duty not to commit genocide” by a State. That operation, bearing in mind the substance of the provisions of the Convention, could not have been carried out without to some extent touching upon the legislative or quasi-legislative arena. Even more surprising is the fact that such an interpretation, in certain vital respects, conflicts with common sense and cogent legal considerations. Hence, it would come as no surprise if this interpretation were to appear as argumentum ad casum. 2. Interpretation of the duties of the Contracting Parties on the basis of the Genocide Convention 111. In contrast to the standard understanding that the Genocide [p538] Convention imposes upon the Contracting Parties as primary duties - the duty to enact necessary legislation to give effect to the substantive provisions of the Convention (Art. V) and the duty of instituting legal proceedings for punishable acts provided by Article III against persons charged in a competent tribunal of a State in the territory of which the act was committed (Art. VI), the majority view focused on the duty to prevent as a complex duty comprising “a duty to act” and “a duty not to commit” genocide as some sort of mother duty or an umbrella duty in the context of the Convention. Sedes materiae the view could be summarized as follows: Prevention is perceived as “the duty to prevent in the Genocide Convention” (Judgment, para. 429). As regards its nature, the duty is one “of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide” (Judgment, para. 430). A State’s duty to prevent is accompanied by the “corresponding duty to act” in the sense of the duty which “arise[s] at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.” (Judgment, para. 431.) Furthermore, the undertaking to prevent includes the obligation not to commit genocide and the other acts enumerated in Article III considering that under Article I a Contracting State is bound to prevent such genocidal acts being committed by its organs and persons whose acts are attributable to it (Judgment, paras. 166-168). 112. Two issues are raised as regards the view taken by the majority: (a) what is the proper meaning of “prevention” in criminal law and in terms of the Genocide Convention; (b) the nature and scope of the “corresponding duty to act”; and (c) does there exist a duty of a State not to commit genocide? 2.1. The duty to prevent 113. As regards the issue of prevention, the understanding of the majority appears to be highly innovative, transcending not only in degree [p539] but in kind the standards generally accepted in the genus of laws regulating criminal matters. In criminal law, either national or international, the prevention of a crime in terms of the plain and natural meaning of the word “prevention” - an action keeping something from happening or rendering impossible an anticipated genocidal design - is alien to the very nature of criminal law. The main function of the Genocide Convention, or indeed of any other criminal law norm, lies in protection rather than in prevention. Criminal law, and the Genocide Convention is its part, comes post factum, when the object of protection has already been damaged, destroyed or threatened. The protective function of the Genocide Convention does not have the character of direct, actual protection as suggested by the majority perception of prevention. It is of indirect nature having in mind that it is expressed in deterrence. The protective function of the Genocide Convention cannot be equalized with prevention of genocide in terms of legal duty because equalization would mean, inter alia, a doubt in the need for the existence of the Genocide Convention as it stands now. Moreover, the determination of the duty to prevent genocide as a distinct legal duty which runs counter to the principle impossibilia nullum obligatio est. The duty to prevent genocide is, in fact, a social, moral, even metaphysical duty, being the goal of social defence action against genocide. Social defence against genocide is ratione materiae much broader than the effects of the Genocide Convention itself. It implies a totality of actions in the social, legal, economic, political and cultural spheres aimed at eliminating the real causes of genocidal pathology. It is materialized in the form of national criminal policies as well as the general policy of the competent United Nations organs, especially those referred to in Article VIII of the Convention. In that context it is correct to speak of a duty, either moral or social, to prevent genocide. However, that appears to be the criminological concept of the prevention of genocide in the well-known forms of primary, secondary and tertiary prevention. 114. The effects of the Convention as regards the prevention of genocide are manifested in general deterrence - in the sense of the general, normative meaning of the Convention as an international criminal law norm and its application. The preventive effects of the Convention itself are also emphasized in the travaux of the Convention. In the commentary by the Secretariat it was pointed out that a law established by the Convention “tends to deter and prevent actions by persons who might be tempted to commit a crime”. [FN111] ------------------------------------------------------------------------------------------------- [FN111] United Nations doc. E/447, p. 45. ------------------------------------------------------------------------------------------------- The application of the Genocide Convention also produces effects in terms of special deterrence, ratione personae limited to the perpetrators [p540] of the crime leaving potential perpetrators outside of its scope. In that regard, it should be pointed out that the application of the provisions of the Genocide Convention or reciprocal provisions of national criminal legislations ad casum is not, stricti juris, the prevention of genocide but its suppression. 115. The prevention referred to in Article I of the Convention is the general principle underlying the operative provisions of the Convention rather than a distinct legal duty. In favour of this determination, as well as general reasons concerning the nature of criminal law protection (para. 113 above), there are also specific reasons, which concern the Convention itself. The undertaking by the Contracting Parties to prevent genocide, stipulated in Article I in fine, should be read in connection with the subject and purpose of the Convention, and not in isolation. The preamble of the Convention states, inter alia, that: “The Contracting Parties ............................. Being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required . . . Hereby agree as hereinafter provided.” (Emphasis added.) “International co-operation” in the particular context can hardly mean anything else but the defence of the international community against genocide. The Genocide Convention is a proper legal expression and the ingredient of overall international co-operation in the struggle against the odious scourge of genocide. The essential role of international co-operation in the area of the prevention of genocide is confirmed both in the text of the Convention and in the travaux préparatoires. Article VIII of the Convention referring to the possibility of preventive action by the United Nations called upon by the Contracting Parties “is the only Article in the Convention . . . which deals with the prevention of that crime”. [FN112] As the Convention “creates no independent treaty body with responsibility for [its] implementation, it appears that in the area of prevention, the only hint of a mandate is that accorded to the ‘competent organs of the United Nations’, pursuant to Article VIII”. [FN113] ------------------------------------------------------------------------------------------------- [FN112] N. Ruhashyankiko, op. cit., para. 304, p. 79; Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, prepared by Mr. B. Whitaker, doc. E/CN.4/Sub.2/1985/6 (2 July 1985), para. 66, p. 36. [FN113] W. Schabas, Genocide in International Law, 2000, p. 448. ------------------------------------------------------------------------------------------------- In substantive terms, Article VIII merely expresses, normatively, the essence of the travaux préparatoires in that regard. In the Commentary by the Secretariat it is stated, inter alia, that: [p541] “if preventive action is to have the maximum chances of success, the Members of the United Nations must not remain passive or indifferent. The Convention for the punishment of crimes of genocide should, therefore, bind the States to do everything in their power to support any action by the United Nations intended to prevent or stop these crimes.” [FN114] ------------------------------------------------------------------------------------------------- [FN114] United Nations doc. E/447, pp. 45-46. ------------------------------------------------------------------------------------------------- The proposal by the United States of America was similar: “The High Contracting Parties . . . agree to concert their actions as such Members to assure that the United Nations takes such action as may be appropriate under the Charter for the prevention and sup-pression of genocide.” [FN115] ------------------------------------------------------------------------------------------------- [FN115] Basic Principles of a Convention on Genocide, United Nations doc. E/AC.25/7; emphasis added. ------------------------------------------------------------------------------------------------- The position of the USSR might be summarized as follows: “Any act of genocide was always a threat to international peace and security and as such should be dealt with under Chapters VI and VII of the Charter . . . Chapters VI and VII of the Charter provided means for the prevention and punishment of genocide, means far more concrete and effective than anything possible in the sphere of international jurisdiction ...”116 ------------------------------------------------------------------------------------------------- [FN116] United Nations doc. A/C.6 SR.101; emphasis added. ------------------------------------------------------------------------------------------------- The practice of the competent organs of the United Nations as regards the prevention of genocide developed within the framework of the rules provided in Article VIII of the Convention. [FN117] ------------------------------------------------------------------------------------------------- [FN117] W. Schabas, Genocide in International Law, 2000, pp. 453-479. ------------------------------------------------------------------------------------------------- 116. The duty to prevent genocide in legal terms is one thing, and the legal duty to take preventive measures in that regard is another. If the duty to prevent is defined in legal terms, then the bearer of the duty is in the position of guarantor, so that, by the very commission of genocide the bearer is held responsible. Preventive measures are, for that matter, different in nature. They can be perceived in a broader or a narrower sense. In a broader sense, they imply positive measures such as the creation of a social and cultural environment that per se excludes or reduces to a minimum the creation of genocidal pathology. In a narrower sense, they can be reduced to acts which, although not constituting actions of commission and, as a rule, not being incriminated, facilitate or make possible the commission of genocide i.e., preparatory acts. [p542] The Secretariat’s draft Convention on the Crime of Genocide contained incrimination of the following preparatory acts: “(a) studies and research for the purpose of developing the technique of genocide; (b) setting up installations, manufacturing, obtaining, possessing or supplying of articles or substances with the knowledge that they are intended for genocide; and (c) issuing instructions or orders, and distributing tasks with a view to committing genocide.” [FN118] ------------------------------------------------------------------------------------------------- [FN118] United Nations doc. E/447, p. 29. ------------------------------------------------------------------------------------------------- The proposal, however, was not accepted, probably following the prevailing practice of national criminal laws not to criminalize acts which are not, from the legal point of view, acts of perpetration, actus reus,of the criminal act of genocide. Hence, as noted by the learned author, “the concept of punishing acts preparatory to genocide seems to have been forgotten by both international and domestic lawmakers”, so there is nothing “to authorize criminal repression of acts preparatory to genocide until they reach the threshold of attempts”. [FN119] ------------------------------------------------------------------------------------------------- [FN119] W. Schabas, Genocide in International Law, 2000, pp. 490-491. ------------------------------------------------------------------------------------------------- But probably for the sake of balance the Convention has introduced the criminalization of acts, direct and public incitement to commit genocide or the attempt to commit genocide. In contrast to the Genocide Convention, some international conventions contain a limited or extensive spectrum of preventive measures, either in a broader or narrower sense or combined. For instance, Article 2 of the International Convention on the Elimination of All Forms of Racial Discrimination (1965), Articles 3 and 4 of the Convention against Discrimination in Education (1960); Articles 1, 3 and 8 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (1956); Articles 2 and 3 of the Discrimination (Employment and Occupation) Convention (1958). There is a substantial difference between the duty to prevent in legal terms on the one hand, and the preventive measures defined by the rules of a convention on the other. While breach of the legal duty to prevent entails the responsibility of the offender in terms of criminal law, the effect of a breach of the duty to undertake the preventive measures stipulated is equivalent to a treaty violation, except where it assumes the characteristics of a criminal offence, such as exempli causa, complicity or co-perpetratorship. 117. The majority view as regards the scope ratione personae of the supposed legal duty to prevent genocide appears to be highly problematic. [p543] It is based on drawing qualitative distinction between the effects of the expression “undertake to prevent” in fine of Article I on the one hand, and Article VIII of the Convention on the other. While the expression “undertake to prevent”, is perceived as imposing a “distinct” and “direct obligation [of the Contracting Parties] to prevent genocide” (Judgment, para. 165), it sees the effects of Article VIII in “completing the system by supporting both prevention and suppression, in this case at the political level rather than as a matter of legal responsibility” (Judgment, para. 159; emphasis added). In a word, the Convention imposes on the Contracting Parties the legal duty to prevent genocide and on the competent organs of the United Nations referred to in Article VIII of the Convention - a social or political duty to prevent genocide. Such a duality of the duties is hard to reconcile with the nature of the Genocide Convention. The Convention enshrines rights and obligations of an erga omnes character (I.C.J. Reports 1996, para. 31), and belongs to corpus juris cogentis. As such it represents a normative expression of substantive, fundamental interests of the international community as a whole, interests which transcend the interests of States taken individually. If genocide “shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations” (resolution 96 (I) of the General Assembly, 11 December 1946; I.C.J. Reports 1951,p.23; I.C.J. Reports 1996, p. 616, para. 31), it is unclear how the Contracting Parties and the competent organs of the United Nations, the only ones singled out in that regard in Article VIII of the Convention dealing specifically with the prevention issue, can be placed in a fundamentally different legal position as regards the prevention of genocide. A fortiori, bearing in mind that, as a rule of jus cogens it should be overriding and absolutely binding in character. As regards its peremptory nature, it is unclear how a duty that, by definition, has absolute obligatory force and, as such, knows no alternatives or conditions, can be designed in terms of a duty “to take all measures to prevent genocide which were within its power” (Judgment, para. 430) not being “under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide” (ibid.). Thus perceived, it is the duty to act in order to prevent genocide as far as possible rather than the duty to prevent. A duty to prevent that is contingent on a host of factual legal requirements can hardly claim the status of a peremptory norm. Furthermore, does this imply - bearing in mind that, according to the majority view, the duty to prevent includes the obligation not to commit genocide and other acts enumerated in Article III of the Convention - that the organs of the United Nations are not bound in legal terms by the [p544] obligation not to commit genocide and other punishable acts under the Convention? Or, pursuing the logic underlying the majority view at step further if, ex hypothesi, the United Nations were to commit genocide, would that Organization, in contrast to a State, not be directly responsibility? But, apart from the aforementioned controversies involved, it seems clear that the very pronouncement that Article VIII completes “the system by supporting both prevention and suppression, in this case at the political level . . .” (Judgment, para. 159) is, by itself, an argument in favour of the social and political nature of the duty to prevent. 118. Article VIII, as the only operative provision of the Convention concerning the prevention of genocide, has two legal meanings depending on the circumstances: (i) in case of suspected genocide on the territory of a State, whether or not a Member of the United Nations, the objection that the matter essentially falls within domestic jurisdiction in terms of Article 2 (7) of the Charter is not acceptable; (ii) as regards action by the competent organs of the United Nations, the parties are under an obligation to do everything in their power to give full effect to the actions of the United Nations. 119. Controversies in the majority view regarding the nature of prevention spread with remarkable ease. If, arguendo, the prevention of genocide exists as a legal duty, then its perception as the “obligation . . . of conduct and not . . . of result” (Judgment, para. 430), is contradiction in adiecto, because it transforms the duty to prevent into the duty to act with no prevention as a result. The plain and natural meaning of the term “prevention” lies in the action of keeping from happening or rendering impossible an anticipated genocidal design. Hence, the prevention should be ex definitione an action of result. True, the majority perception of the duty to prevent is accompanied by the “corresponding duty to act” but this additional element is of dubious validity. 2.2. Corresponding duty to act 120. As regards its existence, the “corresponding duty to act” appears to be a pure creation of the so-called judicial legislature, having no trace whatsoever either in the text of the Convention or in its travaux préparatoires. As such it is a demonstration of a revision of the Convention rather than its proper interpretation. In abstracto, the common denominator of two reasonable aims of the introduction of a “corresponding duty to act” is the nullification of the existence of the legal duty to prevent genocide in its real and genuine meaning. [p545] One aim could be to confer active force or a sort of enforcement capacity on the duty to prevent. If, however, the prevention of genocide is a distinct legal duty, then any “corresponding duty to act” is superfluous. In that sense, the “corresponding duty to act” in fact deprives the supposed legal duty to prevent of its own normative content and turns it into a general legal principle. The other aim would be to serve as a means of transforming the prevention in its original and accepted meaning into a relaxed and soft form of using the available means as circumstances permit. Thus, the duty to prevent would be shifted towards the duty to act with an uncertain outcome as regards prevention on the basis of a broad and undefined criterion more suited to civil than to criminal law. 121. The majority view has not escaped certain terminological problems either. If the duty to prevent also includes the duty not to commit genocide, then the term does not seem adequate, at least in relation to this part of the prevention, because it would in effect mean “self-prevention”. The term, however, appears to be devoid of any meaning in this particular context, as how one can self-prevent oneself in legal terms, acting simultaneously as Dr. Jekyll and Mr. Hyde? If understood as a legal duty, the failure to prevent genocide would belong to the category of criminal offences through the omission to act. For the omission to act to have any meaning, it must have as its object a criminal offence defined in terms of failure to act. As the Model Penal Code expressly states, liability may be based on an omission when “the omission is expressly made sufficient by the law defining the offence” (para. 2.01(3)). The Genocide Convention, however, not only does not impose the duty to act in concreto, it is a matter of the creative interpretation of the majority - but it has not even included the omission to act in the exhaustive determination of punishable acts in its Article III. It follows, consequently, that the judicial creation of the duty to prevent, including a “corresponding duty to act”, has been created ad exemplum legis, in the manner which preceded the constitution of the principle of legality as the common heritage of modern criminal law. For in order for the construction of the legal duty to prevent genocide to be able to serve as a basis for responsibility at all, it was necessary to have, albeit only tacit, judicial creation of the criminal offence of the failure to act. In that way, the majority view, if anything came dangerously close to the very heart of the principle nulla crimen sine lege. The stringent requirements of legality immanent in criminal law do not tolerate creative, extra-textual interpretations, in particular those which are conducive to the creation of new criminal offences or the expansion of the essence of criminal offences or of any of the constitutive elements of criminal offences. Consequently, the interpretation of the Genocide Convention, as a criminal law treaty must, in principle, be more restrictive [p546] and related to the text of the Convention than the interpretation of other international treaties. 122. The duty “not to commit genocide” is, according to the majority view, included in the duty to prevent, perceived as a complex norm, as some kind of umbrella norm in the context of the Convention. Leaving aside the perception of it as a complex norm from the standpoint of responsibility, the least one can say from a structural point of view is that it is not a coherent construction both in terms of legal tech-nique and substance. From the standpoint of legal technique it is unusual for the parts of the complex norm to be defined in different ways. While the duty “not to commit” has been defined in a negative way, the duty to prevent, as the mother norm, and the “corresponding duty to act”, have been defined in a positive way. As regards its substance, the complex rule of prevention, as perceived by the majority, would consist of a variety of obligations. On the one hand, the obligations which concern prevention as such - the duty to prevent and the corresponding duty to act - on the other, the duty “not to commit genocide”, which concerns the very notion of genocide i.e., its perpetrator element. The heterogeneous nature of the obligations constituting the duty to prevent signifies the artificial nature of the construction, tailored to the purpose. It becomes even more striking if observed in the context of the corresponding offences. As a breach of any duty in terms of criminal law constitutes a criminal offence, in the case at hand we would be dealing with an utterly unusual complex criminal offence (infraction complexe; zusammengesetztes Verbrechen) comprised of diverse offences. Thus, exempli causa, the perpetration of one act of genocide by a State would produce two consequences within the context of a single complex rule - a breach of the duty “not to commit genocide” would, at the same time, mean a breach of the duty to prevent or, more precisely, the duty to self-prevent, with the accompanying “corresponding duty to act”. 2.2.1. Application of the duty to prevent in casu 123. Even if, for the sake of argument, the existence of the legal duty to prevent is accepted, its application as regards the Respondent seems to be erroneous. The arguments on the basis of which the majority concluded that the Respondent “violated its obligation to prevent the Srebrenica genocide . . .” (Judgment, para. 438) are: (i) that the FRY “was in a position of influence over the Bosnian Serbs . . . unlike that of any of the other States parties to the Genocide Convention . . .” (Judgment, para. 434); (ii) that the FRY “could hardly have been unaware of the serious risk of [p547] it [the genocide] once the VRS forces had decided to occupy the Srebrenica enclave” (Judgment, para. 436); (iii) that the Respondent has not shown “that it took any initiative to prevent . . .”, the inference being “that the organs of the Respondent did nothing to prevent the Srebrenica massacres . . .” (Judgment, para. 438). It must be conceded that not one of the arguments put forward seems convincing. As far as the first argument is concerned, it seems to be based on a certain confusion between notions of “influence” and “power” and their effects in the area of prevention of genocide. “Influence” as such can hardly be a means of preventing genocide. As a form of indirect power, it could prompt self-prevention action by the alleged perpetrator, but per se is incapable of preventing genocide. This is particularly the case where the alleged genocidal intent appeared in an apparently spontaneous way during an operation which lasted a few days. As a means of triggering self-restraint or self-prevention, influence requires a considerably longer time than the duration of the operation in the course of which a massacre was committed. The reasoning of the majority contemplates actions above the influence in terms of factual and legal power which the Respondent have had in relation to the given event. The majority attributes critical importance to the notion of “due diligence” in assessing whether a Contracting Party acted in a proper way. It appears, however, that the notion of due diligence is of little, if any, help in concreto. Due diligence, as demonstrated in the jurisprudence of the Court in Corfu Channel (United Kingdom v. Albania) and United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) cases, operates primarily as regards objects under sovereignty or effective control of the State to which lack of due diligence is imputed. As the Court found out, the Respondent did not exercise effective control over the given territory (Judgment, para. 413). Moreover, measures which a State would have to take in order to avoid getting itself into a situation where it would be charged with lack of due diligence are difficult if not impossible to take while observing the limits permitted by international law as regards the territory of another State. It is interesting to note that in the passage devoted to the responsibility of the State in paragraph 438 of the Judgment, for breaching the obligation to prevent, the general word “influence” is replaced by the word “power”. It is unclear whether this is a matter of linguistic inconsistency in the text or of an expression of argumentum ad casum. [p548] The view that influence of itself constitutes an element of responsibility based on the omission to act is, perhaps, a borrowing from the law of command responsibility. As such, it is totally inapplicable in the area of prevention in the circumstances of the case at hand, bearing in mind, inter alia, that, as regards command responsibility, influence is exerted on a person over whom effective control is also exercised. Incidentally, it also demonstrates an uncritical application of the analogy with criminal law. For with the exception of cases of analogia legis, i.e., one established by the legal rule itself, analogies with criminal law cannot be considered acceptable in the light of the principle of legality. The second argument essentially concerns awareness of the general risk of genocide, considering that, as was concluded, “it [the Court] has not found that the information available to the Belgrade authorities indicated, as a matter of certainty, that genocide was imminent . . .” (Judgment, para. 436). The tragic truth is, however, that in civil wars, particularly in those where the lines of military demarcation coincide to a high degree with ethnical or religious ones, the risk of ethnically motivated crimes, including genocide, is always high and serious. It is simply inherent in this kind of war. Hence, in the construction termed prevention as a legal duty, awareness of the imminent danger of genocide seems more proper as the basis for action. Especially considering that the general risk of genocide, in light of its frequency in civil wars, in fact shifts the emphasis from preventive actions to the prevention of civil wars. And that is actually the primary prevention of situations leading or likely to lead to genocide, prevention in a criminological or social defence sense, and not prevention in terms of a legal duty. And finally, the argument that the Respondent has not shown that “it took any initiative to prevent . . .” is not without difficulties as regards both facts and law. As regards facts, it appears that the Respondent submitted evidence to the effect that Miloševic instructed Karadžic that it would be a mistake to take Srebrenica, because there could well be a massacre due to prior events at Bratunac. [FN120] In addition, as noted by Lord Owen: ------------------------------------------------------------------------------------------------- [FN120] Dutch Srebrenica Report, Part II, Chap. 2, Sect. 5: footnote as “Confidential Information 43”. ------------------------------------------------------------------------------------------------- “I had rarely heard Miloševic so exasperated, but also so worried: he feared that if the Bosnian Serb troops entered Srebrenica there would be a bloodbath because of the tremendous bad blood that existed between two armies. The Bosnian Serbs held the young Muslim commander in Srebrenica, Naser Oric´, responsible for a massacre [p549] near Bratunac in December 1992 in which many Serb civilians had been killed.” [FN121] ------------------------------------------------------------------------------------------------- [FN121] Lord Owen, Balkan Odyssey, 1995, pp. 134-135. ------------------------------------------------------------------------------------------------- What President Miloševic said to Lord Owen, in his capacity as Co-Chairman of the Steering Committee on the Former Yugoslavia, should be understood as a warning of a risk of a massacre in Srebrenica. The warning, together with the instruction given to the President of Republika Srpska, Karadžic, considering that “every State may only act within the limits permitted by international law” (Judgment, para. 430), seems the only thing the Respondent could do in the circumstances. It should be noted that in the Corfu case Albania was declared responsible because it “neither notified the existence of the minefield, nor warned the British warships of the danger they were approaching” (Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 22). If however, the failure to warn was a basis for holding Albania responsible for the event that occurred in its territory, then it is unclear how President Miloševic’s warning does not represent fulfilment of the duty to act, as the warning was in fact the only possible preventive action as regards the territory of the other State. In addition, the application of the anticipated duty to prevent in casu requires an additional condition of causality i.e., that the alleged failure to act caused the massacre. The condition was neither proved nor implemented in the Judgment. 124. Considering the primary responsibility of the competent organs of the United Nations in the area of genocide prevention, as enshrined in Article VIII of the Convention, the concern expressed by the European Union negotiator, Mr. Bildt, to President Miloševic, to which the Judgment particularly draws attention (Judgment, para. 436) hardly has any relevance in casu being a pure demonstration of humanitarian concern. As a possible warning by the representative of the organized international community which had a proper factual power and legal capacity to act, moreover, whose military units, on the basis of United Nations Security Council resolution, were under a legal obligation to secure the safe-area of Srebrenica, addressed to the head of State which, according to the finding of the Court (Judgment, para. 413), had no effective control over given territory, having no, in addition, factual power comparable to that possessed by the organized international community, can hardly have an excusable character tacitly suggested by the wording of the formulation. (A qualitatively different conclusion would impose itself only if the authority of the competent international body were delegated to President Miloševic on that occasion in due course to act on the territory of [p550] Bosnia and Herzegovina with the aim of preventing the massacre in Srebrenica.) 125. The argument which was also put forward concerns the Orders of the Court of 8 April 1993, as well as of 13 September 1993, by which the Court indicated provisional measures to the effect that the “FRY was bound by very specific obligations by virtue of the two Orders indicating provisional measures” (Judgment, para. 435). Two observations can be made regarding the specific finding of the majority. Primo, the binding character of the Order indicating provisional measures was articulated as late as the LaGrand case (I.C.J. Reports 2001, p. 503, para. 102). Until that case the position of the Order indicating provisional measures as regards its binding force could not have been considered settled. That fact is confirmed by the Order of 13 September 1993 itself. Paragraph 58 of the Order refers to its previous finding in the Nicaragua case that: “When the Court finds that the situation requires that measures of this kind should be taken, it is incumbent on each party to take the Court’s indication seriously into account . . .” (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 144, para. 289) and stated “this is particularly so in such a situation as now exists in Bosnia-Herzegovina . . .” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 349). Secundo, the argument is not a proper one, since the Orders strongly suggest that it is in fact about an interim judgment par excellence. The Orders open “practically unlimited, ill-defined and vague requirements for the exercise of responsibility by the Respondent in fulfilment of the Order of the Court, and lay the Respondent open to unjustifiable blame for failing to comply with this interim measure” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, declaration of Judge Tarassov, pp. 26-27). What is even more striking is that the measures were indicated in the proceedings phase allowing the Court “to entertain a provisional and merely prima facie idea of the case” (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 33). The narrow line between such provisional measures and the subject-matter of the case placed the Court in a position of making an estoppel in terms of the alleged facts presented by a party. [p551] In fact, the Orders, dealing with the events during the civil war in Bosnia and Herzegovina, for the first time used the qualification “genocide”. The word “genocide” appeared in Security Council resolutions for the first time on 16 April 1993 when the Council took note of the Order of 8 April 1993. [FN122] Even the resolution creating the ad hoc Tribunal for the former Yugoslavia of 8 May 1993 did not refer to genocide. ------------------------------------------------------------------------------------------------- [FN122] United Nations doc. S/Res/819, 1993. ------------------------------------------------------------------------------------------------- The authority of the Court is obviously tremendous, but it would be appropriate for the Court to strike a balance between its authority and its responsibility in each particular case. Judicial caution and strict observance of its competencies in every phase of the dispute are conducive not only to the desirable but also necessary balance between judicial authority and judicial responsibility. Otherwise, there is a danger of the abuse of the judicial function. 2.3. The duty not to commit genocide 126. According to the majority view, the duty not to commit is an implied duty, “necessarily implie[d]” by the obligation to prevent (Judgment, para. 166). The reasoning behind this view is that “That obligation [to prevent] requires the States parties, inter alia, to employ the means at their disposal . . . to prevent persons or groups not directly under their authority from committing an act of genocide or any of the other acts mentioned in Article III. It would be paradoxical if States were thus under an obligation to prevent, so far as within their power, commission of genocide by persons over whom they have a certain influence, but were not forbidden to commit such acts through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State concerned under international law.” (Judgment, para. 166.) The antecedent question in that regard is whether the duty of a Contracting Party to the Convention, of a criminal law nature, can be imposed by implication? The answer is if anything negative rather than positive. The interpretation according to which the duty not to commit genocide is necessarily included within the undertaking to prevent, irrespective of the way in which, rightly or wrongly, prevention is perceived, is a demonstration of an impermissibly extensive interpretation of the Convention. Moreover, it runs counter to the very heart of the principle of legality in international criminal law. There is no reason for recourse to an extensive interpretation [p552] of the perpetrator of genocide. The provisions of the Convention are quite clear in that regard. The terms used in Articles II-VIII of the Convention are clear on the meaning of the provisions of the Convention (lex dixit minus quam voluit), which determine physical persons as the only perpetrators of genocide, so that there are no grounds whatsoever for having recourse to an extensive interpretation. 127. All the more so, as in the case in concreto, by extra-textual interpretation ignoring and nullifying the intention of the Contracting Parties clearly expressed in the text of the Convention and confirmed by the travaux préparatoires. In this way the interpretation well exceeds the permissible interpretative framework. The consequence of this would be the imposition of a new obligation upon the Contracting Parties in contradiction with the general principle of international law that the duty of a State cannot be presumed but must be unequivocally established, stressed in particular in the area of international criminal law in the light of the strict requirement of nulla crimen sine lege. It is rather about re-writing the Convention, by importing an extraneous duty alien to the intention of the Contracting Parties, than its interpretation properly speaking. Reference to the object and purpose of the Convention, coupled with reliance on the principle of effectiveness, does not seem convincing. It is designed in an abstract manner, based merely on particular phrases “prevention of genocide”, detached from the Convention as a whole (see Competence of the ILO in Regard to International Regulation of the Conditions of Labour of Persons Employed in Agriculture, Advisory Opinion, 1922, P.C.I.J., Series B, No. 2, p. 23). The principle of effectiveness does not seem to be properly interpreted in that regard either, or is not applicable as its effects are essentially negative and it is not per se sufficient as a basis for a proper interpretation of the purpose of the Convention. 128. The majority view is, it appears, based on a certain confusion between the commission of the crime, i.e., the position of the perpetrator of the crime of genocide and responsibility for its commission. When it is a matter of States or other legal entities, the status of the perpetrator of a crime may be one thing and criminal responsibility for the crime another. The obligation of a Contracting Party not to commit genocide is, in fact, a determination in negative terms that a State is a possible perpetrator of genocide. This determination is strange to say the least. Because it does not take into account what is known as genus proximus of any crime, including the crime of genocide. Any crime is essentially a physical act or omission accompanied by a guilty mind and as such cannot be committed by entities like States, having [p553] neither body capable of undertaking physical, corporal acts nor its own will. It is an axiomatic matter that also produces real consequences in the criminal law area. That a State, like any other legal entity, can be held liable in terms of criminal law for crimes committed by physical persons, is another matter. The criminal responsibility of legal persons is, however, fictional in contrast to the real criminal responsibility of natural persons. It is established as a legal fiction (fictio legalis) in the form of a specific legal norm. A modern offshoot of this legal fiction, developed as far back as canonic and mediaeval law under the influence of Bartolus, is municipal corporate criminal liability based either on the identification of acts of certain natural persons with corporate acts or imputation as a form of vicarious liability. It seems that, for the majority view, corporate criminal responsibility has served as a basis for analogy. If so, this approach is completely erroneous. Analogy, as a form of interpretation, has only minor application in criminal law, even under the condition that it remain intra legem i.e., only if a new rule is not created, which is exactly the case in concreto. But far more important is another aspect. Corporate criminal responsibility, as a legal fiction, is established in national criminal laws by a specific legal rule. Such a legal rule is not known to the Genocide Convention or to positive international law, either. However, this does not mean that the criminal responsibility of States or international organizations will not in future have a place in positive international law. But the Court “as a court of law, cannot render judgment sub specie legis ferendae, or anticipate the law before the legislator has laid it down” (Fisheries Jurisdiction (United Kingdom v. Iceland), Judgment, I.C.J. Reports 1974, pp. 23-24, para. 53; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Judgment, I.C.J. Reports 1974, p. 192, para. 45). 129. As regards the responsibility of a State for the commission of genocide, the majority view is not free from legal difficulties either. They are of two kinds. Primo, if a State as a person is capable of committing genocide, then the criminal responsibility of the State as a perpetrator is a natural and inevitable consequence. The Judgment, however, speaks only of the “responsibility” or the “international responsibility” of a State in that regard, which is certainly not irrelevant in the context of the meaning of the expression “responsibility of a State”. Secundo, the basis for the responsibility of a State for genocide committed is determined in an unclear and contradictory manner. [p554] If, arguendo, a State is a potential perpetrator of genocide, then its criminal responsibility is original and genuine. According to the majority, however, “if an organ of the State, or a person or group whose acts are legally attributable to the State, commits any of the acts proscribed by Article III of the Convention, the international responsibility of that State is incurred” (Judgment, para. 179). The responsibility of a State is, consequently, based on acts of the organs of the State or a personality or group which have committed the prohibited acts listed in Article III of the Convention and which are legally attributable to the State. Attribution as a legal operation seems unnecessary if the responsibility of the State for genocide is original and genuine, as implied by the determination of the State as a possible perpetrator. 2.4. The duty to punish 130. Some elements of the reasoning of the majority as regards compliance with the duty to punish by the Respondent, are formulated in a manner which, with respect to the standards of judicial reasoning, coincides in too high a degree with the demands of some international political institutions and some States addressed to the Respondent. It acted, in concreto, as a principal judicial organ in the formal rather than the substantive sense. [FN123] ------------------------------------------------------------------------------------------------- [FN123] On the difference, see Shabtai Rosenne, The Law and Practice of the International Court, 1920-2005, I, p. 107. ------------------------------------------------------------------------------------------------- That high degree of coincidence relating primarily to the findings of the Court with the political demands addressed to the Respondent is conspicuous in particular in paragraph 449 of the Judgment. Instituting a proper proceeding against persons accused of genocide is one thing, but the duty to punish such persons is quite another. It is particularly striking that the majority passed in silence over this difference affecting the very substance of the fundamental principle of presumption of innocence. Furthermore, the question is posed whether the Respondent “failed to punish” at all having in mind the assumed international obligations as regards persons indicted by the ICTY. It is a matter of public knowledge that Presidents Izetbegovic, Miloševic and Tudjman, at the meeting held in Rome from 17 to 18 February 1996, convened by the then European Union President, S. Agnelli, at which, in addition to the three presidents, also participated United States Assistant Secretary of State R. Holbrooke, High Representative C. Bildt, IFOR Commander Admiral L. Smith, Commander of the United States forces General Joulwan and others, undertook to: [p555] “Persons other than those already indicted by the International Tribunal, may be arrested and detained for serious violations of international humanitarian law only pursuant to previously issued order, warrant or indictment that has been reviewed and deemed consistent with international legal standards by the International Tribunal. Procedures will be developed for expeditious decision by the Tribunal and will be effective immediately upon such action.” [FN124] ------------------------------------------------------------------------------------------------- [FN124] Rome communiqué, Sect. 5, on “Cooperation on War Crimes and Respect for Human Rights”, http://www.barns-dle.demon.co.uk/bosnia/mostar.html. ------------------------------------------------------------------------------------------------- Consequently, the Respondent was not in a legal position to sentence anyone for genocide so far, nor did the Applicant, either. In October 2004, Prosecutor Carla del Ponte completed scrutinizing the applications submitted in Bosnia and Herzegovina and, within the framework of the completion strategy of the ICTY, handed to the Government of BiH to be prosecuted or in which criminal proceedings can be instituted. [FN125] ------------------------------------------------------------------------------------------------- [FN125] http://www.un.org/icty/glance-e/index.htm. ------------------------------------------------------------------------------------------------- To charge the Respondent with lack of co-operation with the ICTY on the basis of the fact that one of the indicted persons has not been arrested, and in the absence of credible evidence that he is on the Respondent’s territory, runs counter to the principle that negative facts are not subject to being proved in the judicial proceedings. In particular, if it is borne in mind that the Respondent, either by arresting or by handing over the indicted individuals who gave themselves up voluntarily, clearly demonstrated its attitude to the matter. I am of the opinion that a State that delivered to the ICTY in the described way 37 indicted individuals, including almost the complete political and military leadership, could hardly be accused of lack of co-operation in terms of a proper judicial reasoning. A kind of formulation resembling those contained in the communiqués of international institutions could be also found in a part of the dispositif relating to the particular question. It is stated therein, inter alia, that the Respondent shall immediately take effective steps in order “to transfer individuals accused of genocide and any of the other acts prescribed by Article III of the Convention”, although it is a matter of public knowledge that these persons have not been arrested. In addition, there is the question as to whether the ICTY can be considered an “international penal tribunal” within the meaning of Article VI of the Convention. The enthusiastic “definitely - yes” is accompanied by a not very convincing explanation: “The notion of an ‘international penal tribunal’ within the meaning [p556] of Article VI must at least cover all international criminal courts created after the adoption of the Convention . . . of potentially universal scope, and competent to try the perpetrators of genocide or any of the other acts enumerated in Article III. The nature of the legal instrument by which such a court is established is without importance in this respect.” (Judgment, para. 445; emphasis added). Having no intention to concern ourselves with the issue substantively, we cannot help asking how it is possible that “[t]he nature of the legal instrument [is] . . . without importance” without a previous assessment of whether the Security Council resolution is a legal instrument stricto sensu or something else, or that “Article VI must at least cover all international criminal courts created . . .” without the qualification that the “creation” should be in accordance with international law. In fact, any interpretation conducive, directly or indirectly, to the legitimization or de-legitimization of the ICTY probably does not accord with the judicial caution dictated by the specific circumstances of the establishment of the ICTY on the one hand, and the contentious nature of the present proceedings on the other. And, if the intention of the Court was to address the issue substantively in the sense of whether the ICTY is a legally established and competent international criminal court in the terms of Article VI of the Con-vention or is a judicial body based on selective and vindictive justice, then the Court should have evaluated all the relevant arguments pro et contra in order to arrive at the proper conclusion. For the issue of the legality of the ICTY has even now not been solved in a judicially meritorious way. The only judicial pronouncement on the matter - that of the ICTY itself in the Tadic case [FN126] - can hardly be taken as meritorious in the light of the fundamental principle of nemo iudex in causa sua. ------------------------------------------------------------------------------------------------- [FN126] Decision on the Defence Motion on Jurisdiction, 10 August 1995, paras. 1-40; Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras. 26-48. ------------------------------------------------------------------------------------------------- 3. Responsibility issue 3.1. The Convention and the issue of responsibility 131. The wording “responsibility of a State for genocide or for any of the other acts enumerated in Article III” is abstract and broad in its vagueness, particularly in terms of the Convention on Criminal Law. [p557] In international law the term “responsibility” [FN127] may, and is indeed, used lato sensu and stricto sensu. ------------------------------------------------------------------------------------------------- [FN127] Bin Cheng, op. cit. ------------------------------------------------------------------------------------------------- Perceived lato sensu, responsibility takes several forms: (i) Responsibility in the ordinary sense, meaning that the author of an act bears its consequences. As an illustration, one may mention the position of Judge Anzilotti in the Polish Agrarian Reform case (Interim Protection) when saying that “a government should bear the consequences of the wording of a document for which it is responsible”(Order of 29 July 1933, P.C.I.J., Series A/B, No. 58, p. 182; emphasis added) (ii) Moral or political responsibility. It implies that the author of an act has a moral or political obligation to repair prejudicial consequences that the act has produced to other persons. Exempli causa, the Ger-man–United States Mixed Claims Commission (1922) held that “Germany’s responsibility for all loss and damage suffered as a consequence of the war - [is] a moral responsibility” (Administrative Decision No. II (1923), para. 5, p. 15. Emphasis of the Commission; also, Russian Indemnity case (1912), 1 HCR, p. 547). (iii) Responsibility in legal terms. This meaning could be taken as signifying responsibility stricto sensu. But “responsibility in legal terms” or “legal responsibility” is rather a general expression than a precise qualification. It includes two ontologically different forms - civil and criminal responsibility that must be specified in each particular case. As regards the expression “responsibility of a State for genocide” used in Article IX, it is unclear whether it relates to responsibility lato sensu or stricto sensu; a fortiori, if one has in mind a significant difference between the English and the French versions of the text of Article IX being “equally authentic” under Article X of the Convention. While in the English version of the text of Article IX it is said, inter alia, “responsibility of a State for genocide”, in the French text the expression “responsabilité d’un Etat en matière de génocide” has been used (emphasis added). The latter expression is much closer to the lato sensu than to the stricto sensu use of the term “responsibility”. In particular, if it is borne in mind that reference to State responsibility and jurisdiction of the International Court of Justice was made in order to strengthen the effectiveness of the Convention. For, it was considered that in time of peace it is virtually impossible to exercise any effective international or national jurisdiction over rulers or heads of State (Official [p558] Records of the General Assembly, Third Session, Part I, Sixth Committee, 103rd meeting, p. 430, and 104th meeting, pp. 436, 444). Hence, the term “responsibility” may be understood also in the sense of “obligation”, so that Article IX would give the “International Court of Justice jurisdiction for disputes arising between States parties about the ‘interpretation, application and fulfilment’ of the various obligations that arise with respect to the specific obligations set out in the Convention, that is, prosecution, extradition and enactment of domestic legislation”. [FN128] ------------------------------------------------------------------------------------------------- [FN128] W. Schabas, Genocide in International Law, 2000, p. 434. ------------------------------------------------------------------------------------------------- 132. The substantive provisions of the Convention established individual responsibility for genocide exclusively, either directly or indirectly. A direct reference to individual criminal responsibility is made in Articles IV, V, VI and VII. The travaux préparatoires, especially those relating to Articles IV and VI (of particular significance for this particular issue) confirm the plain and natural meaning of the Articles referred to in that regard. In the discussions in the Sixth Committee on Article IV, the United Kingdom submitted an amendment [FN129] aimed at establishing State responsibility for genocide. The amendment submitted by Belgium [FN130] was along the same lines. The amendments were rejected for reasons summarized by the Special Rapporteur, Mr. Ruhashyankiko, as follows: “international practice since the Second World War has constantly applied the principle of individual criminal responsibility for crimes of international law, including those of genocide”. [FN131] ------------------------------------------------------------------------------------------------- [FN129] United Nations doc. A/C.6/236 and Corr.1. [FN130] United Nations doc. 6/SR95. [FN131] Mr. N. Ruhashyankiko, Special Rapporteur, op. cit., p. 36, para. 151. Also, the draft Code of Offences against the Peace and Security of Mankind, Report of the ILC on the work of its Thirty-sixth Session, 7 May to 27 July 1984, doc. A/39/10, YILC (1984), II, Part Two, p. 11, para. 32. ------------------------------------------------------------------------------------------------- An indirect way of expressing the same ideas is found in the provisions of Articles I, II and III. The notion of a “crime under international law”, contained in Article I of the Convention is related, in positive international law - apart from projects de lege ferenda - to actions or omissions of the individual exclusively. Articles II and III, dealing specifically with the legal determination of the crime of genocide and punishable acts under the Convention respectively, express, by their style and content, the understanding that a State, as an abstract legal personality without a [p559] physical body and its own genuine will, cannot be responsible in terms of criminal law (societas delinquere non potest). It appears that none of the substantive provisions of the Convention provides for any form of responsibility in legal terms for genocide except the criminal responsibility of the individual. 133. The majority view does not challenge the determination that the text of the Convention does not by itself establish the responsibility of a State. It is pointed out that, inter alia, “It is true that the concepts used in paragraphs (b) to (e) of Article III . . . refer to well known categories of criminal law and, as such, appear particularly well adapted to the exercise of penal sanctions against individuals.” (Judgment, para. 167.) The responsibility of a State for genocide is found, however, in Article IX of the Convention. It is effected by the duty of a Contracting Party “not to commit genocide” in the area of the rules of the responsibility of States as designed in the ILC Articles expressing present customary international law (Judgment, para. 414), although the position of the ILC seems clear in that regard - the Genocide Convention did not envisage State crime or the criminal responsibility of States in its Article IX. [FN132] ------------------------------------------------------------------------------------------------- [FN132] Report of the ILC on the work of its Fiftieth Session, 20 April-12 June 1998, 27 July-14 August 1998, United Nations doc. A/53/10 and Corr.1, para. 249. ------------------------------------------------------------------------------------------------- Is Article IX capable of establishing the responsibility of a State for genocide? The text of Article IX stipulates: “Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for Genocide or any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.” 134. Article IX of the Convention is, by its nature, a standard compromissory clause. As such, its purpose is to determine the jurisdiction of the Court within the co-ordinates of the interpretation, application or fulfilment of the substantive provisions of the Convention. As Manley Hudson correctly concludes: “The article goes further, however, in ‘including’ among such disputes ‘those relating to the responsibility of a State for genocide or any of the other acts enumerated in Article III’. As no other provision in the Convention deals expressly with State responsibility, it is difficult to see how a dispute concerning such responsibility can be included among disputes relating to the interpretation or application or fulfilment of the Convention. In view of the undertaking of the [p560] parties in Article I to prevent genocide, it is conceivable that a dispute as to state responsibility may be a dispute as to fulfilment of the Convention. Yet read as a whole, the Convention refers to the punishment of individuals only; the punishment of a State is not adumbrated in any way, and it is excluded from Article V by which the parties undertake to enact punitive legislation. Hence the ‘responsibility of a State’ referred to in Article IX is not criminal liability.” [FN133] ------------------------------------------------------------------------------------------------- [FN133] Hudson, “The Twenty-ninth Year of the World Court”, 45 American Journal of International Law (AJIL), 1951, cited in M. M. Whiteman, Digest of International Law, 1968, Vol. 11, p. 857. ------------------------------------------------------------------------------------------------- Jurisdictional clauses are not capable of modifying or revising substantive law. The principle expressing cogent legal considerations is particularly valid as regards the species of conventions which the Genocide Convention belongs to. The substantive provisions of the Convention belong to corpus juris cogentis and, as a consequence, can be modified “only by a subsequent norm of general international law having the same character” (Art. 53 of the Convention on the Law of Treaties). It is obvious that the rule contained in Article IX is not a “norm of general international law having the same character” but in fact the rule of jus dispositivum from which the Contracting Parties can derogate on the basis of discretion. If Article IX could modify the legal situation established by the substantive provisions of the Convention, that would, in the optic of the dichotomy jus cogens/jus dispositivum, be tantamount to saying that at least some particular rules of jus dispositivum character possess the capacity to modify the established jus cogens regime. Furthermore, as a matter of practical consequences, it would follow that a Contracting Party which has made reservation in regard to Article IX could be relieved of responsibility that Article IX allegedly imports into the substantive provisions of the Convention. 135. If, arguendo, we hold that the drafters of the Convention, using the term “responsibility” in Article IX, had in mind responsibility in legal terms, then it may be taken as certain that they did not contemplate criminal responsibility of a State. The Convention does not specifically provide for civil responsibility of a State for genocide. The text of the Convention, in its operative part, not only does not contain a specific provision in that regard, but the corresponding general qualifications, such as “civil responsibility” or indications as “reparation” or “compensation” and the like are also lacking. It is true that mention has been made of “civil responsibility” in the travaux préparatoires of Article IX, but this fact has a limited meaning considering the con [p561] firmatory and supportive role of travaux in the interpretation of treaties. Hence, it transpires that the Convention contemplates sui generis responsibility more close to responsibility lato sensu than stricto sensu.It is also supported both by the nature of international criminal law and Article VIII of the Convention as the only Article dealing with suppression and prevention of genocide at the international level. Having in mind that the crime of genocide, as contrary not only to moral law but also to the spirit and aims of the United Nations Charter, constitutes a threat to the international peace and security, the competent political organs of the United Nations, the Security Council in particular, have the obligation to act proprio motu in case of suspected genocide. Consequently, it can be said that responsibility of a State for genocide is primarily of moral and political nature, as well as with respect to other international crimes such as apartheid or aggression, combined with punitive measures undertaken by the competent organs of the United Nations, as a form of collective reaction of decentralized inter-State society. Such a form of responsibility of a State for genocide, reminiscent partly of collective or corporate responsibility, results from the nature of the relatively unorganized, de facto character of the international community, on the one hand, and the embryonic phase in which international criminal law finds itself, on the other. As a matter of principle with respect to the substantive law reasoning, such a perception of responsibility of a State for genocide does not preclude responsibility of a State in terms of civil responsibility. That responsibility, although not primary in relation to international crimes, has its rationale in the fact that the perpetration of a criminal offence also bears civil law consequences. Justifiable from the standpoint of substantive law, civil responsibility of State for genocide is highly doubtful from a jurisdictional point of view at least in a case when jurisdiction of the Court is based on Article IX of the Convention as its compromissory clause. 136. As regards the jurisdictional aspect of the matter, the question arises of the applicability of those rules in the light of the principle of lex specialis derogat legi generali. Any treaty in force, serving as a basis of the jurisdiction of the Court, represents the applicable law in casu by and for itself. Being a jus specialis, any such treaty excludes the application of the rules of general international law. It is to be presumed that the parties to the Convention were aware of the existing general rules on State responsibility and decided to treat the matter in the manner embodied in the Convention. Had they had a different intention, they would have referred, in accordance with the standard practice applied in international conventions, to the rules of general international law either in the form of incorporation or in the form of renvoi. The principle of jus specialis is recognized as a general rule of State [p562] responsibility. Article 55 of the Articles on State Responsibility stipulates: “These Articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.” [FN134] ------------------------------------------------------------------------------------------------- [FN134] YILC, 2001, Vol. II, Part 2. ------------------------------------------------------------------------------------------------- In the case at hand, special rules of international law are, most certainly, the substantive rules of the Genocide Convention. The condition for the application of jus specialis is, of course, a conflict between the provisions having a special character and the rules of general international law. The conflict emerges in the event of any inconsistency or difference, either in positive or negative terms, between these two kinds of rules. And, in concreto, it does exist, because the Genocide Convention does not address issues of civil responsibility of a State for genocide. Bearing that in mind, it appears, as pointed out by the Special Rapporteur in his First Report on State Responsibility, that “the parties to it did not undertake to have accepted the Court’s compulsory jurisdiction on this question”. [FN135] ------------------------------------------------------------------------------------------------- [FN135] First Report on State Responsibility by Mr. James Crawford, Special Rapporteur, United Nations doc. A/CN.4/490/Add.2, para. 43. ------------------------------------------------------------------------------------------------- Only on the basis of the distinction between the responsibility of States taken in absolute and as regards the jurisdiction of the Court, can one find a rationale for the dicta of the Court, when it finds lack of jurisdiction to entertain the claims, according to which: “There is a fundamental distinction between the acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law . . . Whether or not States accept the jurisdiction of the Court, they remain in all cases responsible for acts attributable to them that violate the rights of other States.” (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 456, paras. 55-56; Aerial Incident of 10 August 1999 (Pakistan v. India), Judgment, I.C.J. Reports 2000, p. 33, para. 51; Legality of Use of Force cases, for example Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 328, para. 128.) However, the Court comes to the conclusion that it is without jurisdiction to entertain the claims made as regards responsibility. As stated in the Legality of Use of Force Judgment, the Court “can make no finding, nor any observation whatever, on the question . . . of any international responsibility incurred”. [p563] 137. As regards the substantive aspect of the matter, it is doubtful whether the general rules on State responsibility as it stands are objectively capable of dealing with issues of international crimes. It is true that international delicts and international crimes possess certain similarities. Both share the characteristic of illegality. In that regard, both notions belong to the genus of illegal acts, acts which are in conflict with relevant rules of international law. They differ in other respects making up two distinct species of acts within the said genus. The general rules on State responsibility, as regards responsibility for the damage caused, have been created in the manner of jus aequum. Hence, civil responsibility, in contrast to criminal responsibility, can arise even sine delicto. It derives from the violation of the subjective law of the injured State. Criminal responsibility, for its part, implies responsibility for the criminal offence committed, by which the values of the international community as a whole are protected, public interests expressed in the rules of objective law as such - treated as a jus strictum. The difference in the legal nature between international delicts on the one hand, and international crimes on the other, gives rise to differences in sanctions. In the case of civil responsibility, the sanction essentially consists in restoring the situation that would have existed if the subjective right of the damaged State had not been violated. In contrast to this, the sanction in the case of international crimes, being essentially a legal damage to the objective legal order, consists in the punishment of the perpetrator. As civil and criminal responsibility are ontologically different, criminal responsibility cannot be transposed into a civil one and vice versa. The attempts at transposition are conducive either to the penalization of civil responsibility or the depenalization of criminal law - two equally unsatisfactory outcomes. As regards genocide such an effort amounts either to a “civil genocide” tort deprived of substance within the context of Article II of the Convention or to little more than an excursion into the field of the criminal responsibility of a State which is non-existent in the primary rules. It seems, however, that the majority of the Court embarked precisely on that path. Articles 1 and 2 of the ILC Draft Articles on State Responsibility, signifying as they do a new approach to the notion of responsibility by moving the classical notions of fault and damage towards the absolute responsibility concept, prima facie provide fertile ground for such transposition. But it turns out that it is only an illusion because of the standard regarding the breach which has to be applied as a necessary condition for the existence of an internationally wrongful act attributable to a State. As stated in the commentary to Article 2: [p564] “Whether there has been a breach of a rule may depend on the intention or knowledge of relevant State organs or agents and in that sense may be ‘subjective’. For example Article II of the Genocide Convention states that: ‘In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such . . .’ In other cases, the standard for breach of an obligation may be ‘objective’, in the sense that the advertence or otherwise of relevant State organs or agents may be irrelevant.” [FN136] ------------------------------------------------------------------------------------------------- [FN136] J. Crawford (ed.), The ILC’s Articles on State Responsibility, Introduction, Text and Commentaries, 2003, pp. 81-82, para. 3. ------------------------------------------------------------------------------------------------- The rules of responsibility, as secondary rules, provide the framework indicating the consequences of a breach, while the determination of the content of an obligation, including the standard for a breach, is reserved for the primary rules. As such, secondary rules cannot modify or derogate from primary rules, which per se deprives of substantive effects any attempt at the transposition of criminal law rules into the State responsibility complex. III. The Legal Determination of the Srebrenica Massacre The tragic massacre in Srebrenica is the object of two ICTY Judgments in the Krstic and the Blagojevic cases. In the legal determination of the Srebrenica massacre the Court relies on both judgments equally although the latter is appealable. 1. The components of the genocidal intent It appears that none of the components distinguishable within the genocidal intent was satisfied in the Krstic Judgment. 1.1. Level of intent 138. Both Chambers of the ICTY - the Trial Chamber as well as the Appeals Chamber - perceived, in the Krstic case, alleged genocidal intent in terms of “knowledge” or “awareness”. For instance, the Trial Chamber found that “the Bosnian Serb forces had to be aware of the catastrophic impact that the disappearance of two or three generations of men would have on the survival”. [FN137] Or, “The Bosnian Serb forces knew, by the time they decided to kill all [p565] of the military aged men, that the combination of those killings with the forcible transfer of the women, children and elderly would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica.” [FN138] ------------------------------------------------------------------------------------------------- [FN137] ICTY, Prosecutor v. Krstic, Trial Judgment, para. 595; emphasis added. [FN138] ICTY, Prosecutor v. Krstic, Trial Judgment, para. 595; emphasis added. ------------------------------------------------------------------------------------------------- For its part, the Appeals Chamber held “that the Bosnian Serb forces were aware of these consequences when they decided to systematically eliminate the captured Muslim men”, [FN139] and, further: “The finding that some members of the VRS Main Staff devised the killing of the male prisoners with full knowledge of the detrimental consequences it would have for the physical survival of the Bosnian Muslim community in Srebrenica further supports the Trial Chamber’s conclusion that the instigators of that operation had the requisite genocidal intent.” [FN140] ------------------------------------------------------------------------------------------------- [FN139] ICTY, Prosecutor v. Krstic, Appeals Judgment, para. 29; emphasis added. [FN140] Ibid.; emphasis added. ------------------------------------------------------------------------------------------------- In the Blagojevic case, the Trial Chamber essentially divorced special intent from acts of genocide, thus destroying the organic unity of the subjective and objective element in the being of the crime of genocide. Having found that “a distinction should be made between the nature of the listed ‘acts’ (of genocide) and the ‘intent’ with which they are done in the sense that “while listed acts indeed must take a physical and biological form, the same is not required for the intent”, [FN141] the Trial Chamber in effect excludes from acts relevant in that case the intent to destroy a protected group. For, “with the exceptions of the acts listed in Article 4 (2) and (d), “the Statute itself does not require an intent to cause physical or biological destruction of the group in whole or in part. [FN142] ------------------------------------------------------------------------------------------------- [FN141] ICTY, Prosecutor v. Blagojevic, Trial Judgment, para. 659. [FN142] Ibid. ------------------------------------------------------------------------------------------------- 139. However, “knowledge” or “awareness” is one thing, and “special intent” another. “Knowledge” or “awareness” as the passive, intellectual element of intent in fact constitute dolus generalis. In contrast, special intent means dolus specialis, [FN143] and such a meaning is made plain in the chapeau to Article 4 (2) of the ICTY Statute. While dolus generalis requires that the perpetrator “means to cause” certain consequences or is aware that it will occur in the ordinary course of events (Article 30 (2) (b) of the ICC Statute), dolus specialis requires that the perpetrator clearly intends the result or clearly seeks to produce the act charged. So the difference [p566] lies in the active volitional element which is overriding in the special intent as the subjective constructive element of the crime of genocide. ------------------------------------------------------------------------------------------------- [FN143] ICTY, Prosecutor v. Jelisic, Appeals Judgment, para. 51. ------------------------------------------------------------------------------------------------- As regards the protective group, “[m]ere knowledge of the victims’ membership in a distinct group on the part of perpetrators is not sufficient to establish an intention to destroy the group as such”. [FN144] Even if the perpetrators knew that executing the men would have a lasting impact, it does not necessarily mean that such knowledge formed the basis of the perpetrators’ intent, especially when considered in conjunction with conscious steps taken to preserve the rest of the community [FN145] relating to the transfer of women, children and the old. ------------------------------------------------------------------------------------------------- [FN144] ICTY, Prosecutor v. Krstic , Trial Judgment, para. 561. [FN145] K. Southwick, “Srebrenica as Genocide? The Krstic Decision and the Language of the Unspeakable”, Yale Human Rights and Development Law Journal, 2005, p. 7. ------------------------------------------------------------------------------------------------- 1.2. Type of destruction 140. Destruction, as perceived by the ICTY in the Krstic and the Blagojevic cases is a destruction in social terms rather than in physical or biological terms as legally relevant forms of destruction under the Genocide Convention. In the Krstic case the Trial Chamber found, inter alia, that the destruction of a sizeable number of military aged men “would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica”, [FN146] since “their spouses are unable to remarry and, consequently, to have new children”. [FN147] Such a conclusion, reflecting the idea of social destruction, seems highly doubtful from the legal point of view. Within the context described, the possible procreative implications, even under the assumption that the killings of men have been committed with the intent to produce such implications, could hardly be qualified as genocidal. It seems obvious that such procreative implications, if they had taken place, could not have as direct cause the killings of men, but the inability of spouses of killed men “to remarry and . . . to have new children” due to “the patriarchal character of the Bosnian Muslim society in Srebrenica”. [FN148] Such a construction is not appropriate for the so-called objective imputation (imputatio facti), since it implies deliberate interference of the victim as well as of its decision-making into the causal course (Selbstverantwortung). What is more, it represents a free decision of the victim itself. [p567] ------------------------------------------------------------------------------------------------- [FN146] ICTY, Prosecutor v. Krstic, Trial Judgment, para. 595. [FN147] ICTY, Prosecutor v. Krstic, Appeals Judgment, para. 28. [FN148] Ibid. ------------------------------------------------------------------------------------------------- The perception of destruction in social terms is even more emphasized in the Blagojevic case. The Trial Chamber applied “a broader notion of the term “destroy”, encompassing also “acts which may fall short of causing death” (Blagojevic, Trial Chamber Judgment, para. 662), an interpretation which does not fit in the understanding of destruction in terms of the Genocide Convention (see paras. 84 et seq. above). In that sense, the Trial Chamber finds support in the Judgment of the Federal Constitutional Court of Germany, which held expressis verbis that “the statutory definition of genocide defends a supra-individual object of legal protection, i.e. social existence of the group (and that) the intent to destroy the group . . . extends beyond physical and bio-logical extermination . . . The text of the law does not therefore compel the interpretation that the culprit’s intent must be to exterminate physically at least a substantial number of members of the group.” [FN149] ------------------------------------------------------------------------------------------------- [FN149] ICTY, Prosecutor v. Krstic, Appeals Judgment, para. 28; ICTY, Prosecutor v. Blagojevic, Trial Judgment, para. 664. ------------------------------------------------------------------------------------------------- Thus perceived the term “destruction” “in the genocide definition can encompass the forcible transfer of population”. [FN150] ------------------------------------------------------------------------------------------------- [FN150] Ibid., para. 665. ------------------------------------------------------------------------------------------------- 1.3. Targeted group 141. In the Krstic case, the Prosecution referred, in its final arguments, to “Bosnian Muslims of Eastern Bosnia” as the targeted group. The Trial Chamber did not accept such a qualification finding that the protected group “within the meaning of Article 4 of the Statute, must be defined, in the present case, as the Bosnian Muslims”. [FN151] In the correct exposition of the idea underlying the provision of Article II of the Genocide Convention, the Trial Chamber held that “[t]he Bosnian Muslims of Srebrenica or the Bosnian Muslims of Eastern Bosnia constitute a part of the protected group under Article 4 (of the Statute literally reproducing Article II of the Genocide Convention - M.K.)”. [FN152] It should be noted, however, that the Chambers also found that “no national, ethnical, racial or religious characteristic makes it possible to differentiate the Bosnian Muslims residing in Srebrenica at the time of the 1995 offensive, from the other Bosnian Muslims. The only distinctive criterion would be their geographical location, not a criterion contemplated by the Convention.” [FN153] ------------------------------------------------------------------------------------------------- [FN151] ICTY, Prosecutor v. Krstic, Trial Judgment, para. 560. [FN152] Ibid. [FN153] Ibid., para. 559; emphasis added. ------------------------------------------------------------------------------------------------- The Trial Chamber determined Bosnian Muslims in general terms as the protected group without seeking national, ethnic, religious or racial basis for its qualification of a distinct and separate entity. For, the Trial [p568] Chamber interpreted travaux préparatoires of the Convention in the sense “that setting out such a list was designed more to describe a single phenomenon, roughly corresponding to what was recognized, before the Second World War, as ‘national minorities’, rather than to refer to several distinct prototypes of human groups”. [FN154] ------------------------------------------------------------------------------------------------- [FN154] ICTY, Prosecutor v. Krstic, Trial Judgment, para. 556. ------------------------------------------------------------------------------------------------- The interpretation should be understood in the sense that it is sufficient if it is a group recognizable in its generic substance and that it is not necessary to “differentiate each of the named groups on the basis of scientifically objective criteria . . . inconsistent with the object and purpose of the Convention”. [FN155] The establishment of scientifically objective criteria is in itself desirable and can only contribute to sound administration of justice on the matter, in particular in relation to the element of genocidal intent. Moreover, in certain cases it is not an unattainable goal, as also demonstrated by the jurisprudence of the ICTR. [FN156] The search for “scientifically objective criteria” could, however, run counter to the object and purpose of the Convention if it were to leave without protection a human group not distinguishable on the basis of national, ethnic, religious or racial criteria taken individually, but which, in a general and generic sense, satisfies the conditions to be taken as a distinct and separate group in the light of the Genocide Convention. ------------------------------------------------------------------------------------------------- [FN155] Ibid. [FN156] ICTR, Prosecutor v. Akayesu, Trial Judgment, paras. 510-516. ------------------------------------------------------------------------------------------------- 1.4. In whole or in part 142 The word “part” in the frame of Article II of the Convention does not mean any part of the protected group, but a qualified part. If a part of a group were to be understood as any part, “the intent underlying the actus reus and the mens rea specific to the crime of genocide would overlap, so that the genocidal intent, which constitutes the distinguishing feature of genocide, would disappear”. [FN157] ------------------------------------------------------------------------------------------------- [FN157] C. Tournaye, “Genocidal Intent before the ICTY”, International and Comparative Law Quarterly, Vol. 52, April 2003, p. 459. ------------------------------------------------------------------------------------------------- Within “Bosnian Muslims” as the protected group under the Convention, the Trial Chamber identified the “Bosnian Muslims of Srebrenica” or the “Bosnian Muslims of Eastern Bosnia” as a part of the protected group. [FN158] ------------------------------------------------------------------------------------------------- [FN158] ICTY, Prosecutor v. Krstic, Trial Judgment, para. 560. ------------------------------------------------------------------------------------------------- Can the “Bosnian Muslims of Srebrenica or the Bosnian Muslims of Eastern Bosnia” be considered as a substantial part of Bosnian Muslims? [p569] As a preliminary remark it can be said that, contrary to the diction of the formulation, the expressions “Bosnian Muslims of Srebrenica” and “Bosnian Muslims of Eastern Bosnia” cannot be perceived as synonymous. Although the Muslim population in Srebrenica considerably increased in numbers in the relevant period, it was numerically far from the Muslim population of Eastern Bosnia, which numbered over 170,000. Bearing in mind that in the critical period some 40,000 Bosnian Muslims were concentrated in Srebrenica, and if we would accept as proven that some 5,000-7,000 people were massacred, then, according to quantitative criterion, they could hardly represent a “substantial part” of the community. Besides, the Trial Chamber, in fact, qualified the targeted group in precise terms as “Bosnian Muslims in Srebrenica or Bosnian Muslims of Eastern Bosnia . . .”. According to the data from the last census in Bosnia and Herzegovina, in 1991, there were, in Eastern Bosnia, over 170,000 Muslims (26,316 in Gorazde, 18,699 in Vlasenica, 21,564 in Bratunac, 4,007 in Cajnice, 30,314 in Bijeljina, 48,208 in Zvornik, 13,438 in Visegrad, 4,140 in Bosanski Brod and 2,248 in Bosanski Samac). As regards the question whether the “Bosnian Muslims” of Srebrenica or the “Bosnian Muslims of Eastern Bosnia” could be qualified, according to the quantitative criterion, as a substantial part of the Bosnian Muslims and the protected group under the Convention, one should keep in mind that the Muslim community in Bosnia and Herzegovina, on the basis of data from the last census in Bosnia and Herzegovina in 1991, numbered over 1,900,000. [FN159] ------------------------------------------------------------------------------------------------- [FN159] See www.FZS.ba. ------------------------------------------------------------------------------------------------- Regarding the qualitative criterion, the Judgment does not give any specific characterization of leadership who were massacred. It is not clear what leadership is in question - political, military, or intellectual. It comes out from the dictum of the Trial Chamber, as well as its general reasoning, that the leadership, in fact, consists of the military aged men. For, the military leadership as well, as it is well known, headed by the commander of the division Naser Oric, left the town a couple of days before its fall. In Srebrenica, in the relevant period, there were about 40,000 Bosnian Muslims, including the members of the Bosnia and Herzegovina Army. In view of quantitative criteria of the determination of a substantial part of a protected group, it seems obvious that, compared to more than one million and hundred thousand Bosnian Muslims, the Bosnian Muslims located in Srebrenica could not have constituted its substantial part. The same conclusion imposes itself also in the case of the application of the alternative, qualitative criterion, because the political and intellectual elite of the Bosnian Muslims was located in Sarajevo. [p570] 143. The number of massacred military aged men in Srebrenica was never precisely determined. Moreover, that number might be significantly smaller than the number used by the Tribunal in the Krstic case. Namely, the Tribunal equalized the missing and the killed military aged men in Srebrenica. Such an equalization does not look questionable only from the legal standard accepted in the jurisprudence of the Tribunal (para. 88 above) but also in the light of some indications not considered at all either by the ICTY or by the Court exempli causa.Ifone compares the Final voters’ register of the Srebrenica municipality, prepared by the Organization for Security and Co-operation in Europe (OSCE), and the List of identified bodies of the people buried in the Memorial Complex “Srebrenica - Potocare” (The “Srebrenica Potocare Memorial and Mezaje”, Srebrenica, September 2003); Order of burials at JKP “City Cemeteries”, Visoko [FN160] it comes out that over a third of names are present in both documents. ------------------------------------------------------------------------------------------------- [FN160] See www.gradska.groblja.co.br.srebrenica.html. ------------------------------------------------------------------------------------------------- In addition, a number of soldiers of the Bosnia and Herzegovina Army buried in the Memorial Complex “Srebrenica-Potocare” were, according to the Army’s documents, killed in battles before the events in Srebrenica. For instance, the suggestion and justification of the Command of the 28th division of the Bosnia and Herzegovina Army. [FN161] ------------------------------------------------------------------------------------------------- [FN161] No. classified 04-16/95 of 30 March 1995, for the award of the order “Golden Lily”, Addendum in the “Guide of the Chronicle of the Bosnia and Herzegovina Army”; M. Ivanisevic, “Srebrenica, July 1995, Looking for the Truth in the Press”. ------------------------------------------------------------------------------------------------- 144. However, in regard to the special intent, the Trial Chamber introduced another notion of “part” of the protected group based on geographical area criteria. The Trial Chamber held that: “the intent to destroy a group, even if only in part, means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it. Although the perpetrators of genocide need not seek to destroy the entire group protected by the Convention, they must view the part of the group they wish to destroy as a distinct entity which must be eliminated as such . . . the killing of all members of the part of a group located within a small geographical area, although resulting in a lesser number of victims, would qualify as genocide if carried out with the intent to destroy the part of the group as such located in this small geographical area.” [FN162] ------------------------------------------------------------------------------------------------- [FN162] ICTY, Prosecutor v. Krstic, Trial Judgment, para. 590; emphasis added. ------------------------------------------------------------------------------------------------- Such an interpretation could be considered expansionist i.e., in relation [p571] to the determination made in Article II of the Genocide Convention, going far beyond its actual meaning. Moreover, it seems that the Trial Chamber intentionally went beyond the scope of the Convention because it held that “[t]he only distinctive criterion would be their geographical location, not a criterion contemplated by the Convention.” [FN163] ------------------------------------------------------------------------------------------------- [FN163] ICTY, Prosecutor v. Krstic, Trial Judgment, para. 559. ------------------------------------------------------------------------------------------------- Reduction of the “targeted part” to the municipalities could have a distorting effect as held by the Trial Chamber in the Brdjanin case [FN164] primarily because the intention to destroy a group in part means seeking to destroy a “distinct part” of the group. It is, however, difficult to see how the Bosnian Muslims in Srebrenica constitute a distinct part as opposed to the Bosnian Muslims as a whole. In terms of the Convention, a national, ethnic, or religious group is not an entity comprised of distinct parts, but a distinct entity by itself. The protection provided by the Convention to the group in part is, in fact, protection of the group in its entirety. In that regard, recognition of the part of a group on the basis of its geographical location as a distinct part of the group would diminish the effectiveness of the protection that the group enjoys as a whole. If, however, parts of a group differ in respect of the characteristics which constitute genus proximus of the group (for instance, the Sunnites and the Shiites among the Muslims), it is possible to speak about sub-groups which make up an aggregation in contrast to homogeneous groups to which Bosnian Muslims most certainly also belong. ------------------------------------------------------------------------------------------------- [FN164] ICTY, Prosecutor v. Brdjanin, Trial Judgment, para. 966. ------------------------------------------------------------------------------------------------- In effect, such interpretation amounts to a transformation of a part of the group into a “sub-group”, being Bosnian Muslims in Srebrenica, on the basis of its alleged perception as a distinct entity by the perpetrators. Consequently, the intent to destroy the Bosnian Muslims in Srebrenica, as a “sub-group”, constitutes an intent to destroy a substantial part of the Bosnian Muslim group. Moreover, the Trial Chamber used the substantial criteria twice successively, with the result that: “The genocidal intent proved in the Krstic case is an intent to destroy a substantial part of a substantial part”, [FN165] not, as required, a substantial part of the protected group. Namely, in addition to the qualification of the Bosnian Muslims in Srebrenica as a substantial part of the Bosnian Muslims as the protected group, the Trial Chamber held that the intent to destroy the military aged men within the sub-group means an intent to destroy a substantial part of this subgroup, not only from a quantitative viewpoint (Trial Judgment, para. 594) but also from a qualitative one (Trial Judgment, para. 595). In fact the [p572] determination of a group “in part” as able-bodied, military aged Muslim men of Srebrenica is based on triple qualification - the sex of victims (men only), their age (only or mostly military aged) and their geographical origin - Srebrenica and surrounding areas. [FN166] The term itself therefore well exceeds the meaning of the “group in part” as contemplated by Article II of the Trial Chamber itself. [FN167] ------------------------------------------------------------------------------------------------- [FN165] Tournaye, op. cit., p. 460; emphasis added. [FN166] G. Mettraux, International Crimes and the Ad Hoc Tribunals, 2005, p. 222. [FN167] ICTY, Prosecutor v. Krstic, Trial Judgment, para. 559. ------------------------------------------------------------------------------------------------- 1.5. The inference of intent to destroy 145. The Trial Chamber drew the inference of genocidal intent from three different sources. Primo, the “massacre by the VRS of all men of military age from that community”, [FN168] which is determined as “a selective genocide”. [FN169] Separately from the issue of the basis of the conclusion according to which “all men of military age” were massacred [FN170] in order to analyse the concrete aspect of the intent to destroy, the question of whether the military aged men were massacred exclusively on national, ethnic, or religious grounds, is of decisive importance. ------------------------------------------------------------------------------------------------- [FN168] Ibid., para. 594; ICTY, Prosecutor v. Krstic, Appeals Judgment, para. 26. [FN169] ICTY, Prosecutor v. Krstic, Trial Judgment, para. 593. [FN170] The conclusion is seemingly in contradiction with the established facts. For instance, the Trial Chamber found that the artillery attacks were launched against “the column of Bosnian Muslim men marching toward Tuzla” (Krstic, Trial Judgment, para. 546) and that during “the fatal week of 11 to 16 July, negotiations were undertaken between the Bosnian Muslim and Bosnian Serbs sides” and, as its result, (a group of 3,000) “a portion of the Bosnian Muslim column was eventually let through to government-held territory” (ibid.). The final finding of the Trial Chamber is that “[o]verall, ... as many as 8,000 to 10,000 men from the Muslim column of 10,000 to 15,000 men were eventually reported as missing” (ibid.; emphasis added). It should be mentioned that the overwhelming majority is still considered as “missing” although the law in force in Bosnia and Herzegovina envisaged the period of two years from the disappearance of the persons during wartime in order to proclaim them as dead. There are bases for reasonable doubt that all persons who are accounted as missing are dead. Ibrahim Mustafic, the Muslim representative in the Bosnian and Federal Parliaments, founder of the SDA in Srebrenica, suggested in the Bosnian Parliament the establishment of a special committee whose task would be to search for the survivors from the enclave, but without reaction in the Parliament. He says that the “present attitude of the authorities towards those people is enough to convince me that the authorities expected that the number of the survivors would be smaller; it seems that the number of the survivors is too high for their calculations. They made me say this: ‘It seems you are afraid of living Srebrenica inhabitants’.” (Slobodna Bosna, Sarajevo, 14 July 1996.) ------------------------------------------------------------------------------------------------- The answer to this question is given by the Judgment itself, which [p573] refers to “the conclusion that the extermination of those men was not driven solely by a military rationale”. [FN171] ------------------------------------------------------------------------------------------------- [FN171] Appeals Chamber, para. 26. ------------------------------------------------------------------------------------------------- It appears that the Trial Chamber excluded the exclusively military rationale as motivation for the massacre on the basis of two circumstances: (a) that no distinction was made between the men of military status and civilians; and (b) that non-military-aged were among the massacred. There are, however, arguments which can put those circumstances into perspective. As regards the differentiating between men of military status and civilians, the Srebrenica Report mentions, inter alia, the reference by the members of Dutchbat to “a conflict where the distinction between civilians and soldiers was often unclear”. [FN172] Such a situation may be understood if one bears in mind the particular concept of defence in the SFRY - the so-called all-people defence. In that concept, the armed forces consisted, besides the regular army, of the territorial defence which included not only military aged men who were not in the regular army, but persons who were outside that range. The Judgment does not give details of the non-military aged men massacred. As regards boys (Appeals Chamber, para. 27), that probably means the elder minors, in contrast to “children” who were displaced. The practice in many countries, however, includes them in conscripts, for instance, in the United States of America at the age of 16. The Trial Chamber relied in its disqualification of the military rationale also on the evidence that “some of the victims were severely handicapped and, for that reason, unlikely to have been combatants”. [FN173] However, only one case of that kind is mentioned (ibid.). ------------------------------------------------------------------------------------------------- [FN172] Part 2, Chap. 8, Sect. 10, p. 4. [FN173] ICTY, Prosecutor v. Krstic, Trial Judgment, para. 75. ------------------------------------------------------------------------------------------------- Moreover, it seems that the Tribunal’s reasoning allows the interpretation that the persons who were found to be outside the range of military age as well, represent a simple, in contrast to a serious, military threat. Indeed, the Appeals Chamber found: “Although the younger and older men could still be capable of bearing arms, the Trial Chamber was entitled to conclude that they did not present a serious military threat . . .” (Appeals Judgment, para. 27; emphasis added). [p574] Secundo, procreative implications of killings of men of the Srebrenica Muslim community. Tertio, the transfer of women, children and elderly people within their (Bosnian Serb) control to other areas of Muslim-controlled Bosnia. Although “forcible transfer does not constitute in and of itself a genocidal act”, [FN174] it does not prevent a Trial Chamber from relying on it as evidence of the intentions of the VRS Main Staff. ------------------------------------------------------------------------------------------------- [FN174] ICTY, Prosecutor v. Krstic, Appeals Judgment, para. 33. ------------------------------------------------------------------------------------------------- 146. It appears obvious that the intention to destroy Bosnian Muslims in Srebrenica as such is not the only reasonable inference which may be made from the evidence presented. In a case where an inference needs to be drawn it must be the only reasonable inference available in the evidence. In concreto, the genocidal intent of the perpetrator of the massacre is not just the only reasonable inference, but to judge by the basis of the Trial Chamber’s conclusion that “the extermination . . . was not driven solely by a military rationale”, [FN175] and on the basis of the accompanying arguments, it could hardly satisfy even a more flexible standard of proof than proof beyond reasonable doubt. The contention “that the intent in killing the men and boys of military age was to eliminate the community as a whole . . . seems an enormous deduction to make on the basis that men and boys of military age were massacred”. [FN176] ------------------------------------------------------------------------------------------------- [FN175] Ibid., para. 26. [FN176] W. Schabas, “Was Genocide Committed in Bosnia and Herzegovina ?”, 25 Fordham International Law Journal, 2001, p. 46. ------------------------------------------------------------------------------------------------- The approach of the Trial Chamber to the inference in the Krstic case, is at odds with the jurisprudence of the Tribunal in the Jelisic case (Trial Judgment, paras. 107-108), and the Brdjanin case. In that last case, the Trial Chamber concluded, in a way which can be considered a textbook example of the demonstration of the intrinsic requirement of inference that “The Bosnian Serb forces controlled the territory of the ARK, as shown by the fact that they were capable of mastering the logistic resources to forcibly displace tens of thousands of Bosnian Muslims . . ., resources which, had such been the intent, could have been employed in the destruction of all Bosnian Muslims . . . of the ARK”, and, therefore, “the victims of the underlying acts in Article 4 (2) to (c) particularly in camps and detention facilities, were predominantly, although not only, military aged men. This additional factor could militate [p575] further against the conclusion that the existence of genocidal intent is the only reasonable inference that may be drawn from the evidence.” [FN177] ------------------------------------------------------------------------------------------------- [FN177] ICTY, Prosecutor v. Brdjanin, Trial Judgment, paras. 978-979. ------------------------------------------------------------------------------------------------- 147. The Tribunal’s conclusion according to which the killings of men in Srebrenica bear serious procreative implications for the Bosnian Muslim community, since that destruction “would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica” [FN178] through the fact that “their spouses are unable to remarry and, consequently, to have new children” [FN179] seems highly doubtful from the legal standpoint. ------------------------------------------------------------------------------------------------- [FN178] ICTY, Prosecutor v. Krstic, Trial Judgment, para. 595. [FN179] ICTY, Prosecutor v. Krstic, Appeals Judgment, para. 28. ------------------------------------------------------------------------------------------------- It might also be said that “the physical disappearance of the Bosnian Muslim population at Srebrenica” [FN180] by itself does not and can not mean physical destruction. This is independently of the legal arguments, that is, as witnessed by the undeniable fact of life - that the Bosnian Muslim community in Srebrenica reconstituted itself after the conclusion of the Dayton Agreement. ------------------------------------------------------------------------------------------------- [FN180] ICTY, Prosecutor v. Krstic, Trial Judgment, para. 595. ------------------------------------------------------------------------------------------------- 148. As regards the transfer of women, children and older persons, the evidence of the transfer cannot serve as a proper basis for the inference of genocidal intent, since, according to the finding of the Tribunal itself, it “does not constitute in and of itself a genocidal act”. [FN181] True, the Trial Chamber treated the transfer as supporting its finding that “some members of the VRS Main Staff intended to destroy the Bosnian Muslims in Srebrenica”. [FN182] On this point, the general approach of the Tribunal seems expansionist in comparison with the spirit and text of the Genocide Convention. The factual basis for the inference of genocidal intent should, in principle, consist of physical acts which are capable, objectively, of producing genocidal effects. The physical acts which do not have this capacity, such as, exempli causa the act of transfer, may only support the inference of genocidal intent already made or confirm its existence. Otherwise, the evidence of transfer should be implicitly treated as evidence of the destruction of the targeted parts of the protected group, which would in fact mean admitting - although by the back door - forcible transfer as an underlying act under Article II of the Genocide Convention. In concreto, and bearing in mind the killings of predominantly military aged men in Srebrenica, this does not permit the inference of genocidal intent as the only reasonable inference, relying on the evidence of transfer which transcends the permitted limits of supportive evidence tending to cure its evidential shortcomings [p576] for the purpose of inferring genocidal intent or, even, as a substitute for it. ------------------------------------------------------------------------------------------------- [FN181] ICTY, Prosecutor v. Stakic, Trial Judgment, para. 519; ICTY, Prosecutor v. Krstic, Appeals Judgment, para. 33. [FN182] ICTY, Prosecutor v. Krstic, Appeals Judgment, para. 33. ------------------------------------------------------------------------------------------------- Physical acts which per se are not capable of producing genocidal effects, even if motivated by the intent to destroy a protected group, legally represent no more than an improper attempt distinguishable from the attempt to commit genocide in terms of Article III of the Convention and which may be understood as “action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions”. [FN183] ------------------------------------------------------------------------------------------------- [FN183] Article 25 (3) (f) of the Statute of the ICC. ------------------------------------------------------------------------------------------------- These means may not be placed on a par with the act of “serious bodily or mental harm” in the sense of Article II of the Convention. Being different by their very nature - some of them including the actus reus of the crimes against humanity (inhuman treatment, deportation) while others are distinct international offences (torture, rape) - they are methods which may produce “serious bodily or mental harm” rather than an act in the normative sense. In that respect, “serious bodily or mental harm” appears as a result of the methods or means applied, and not as an act per se. In other words, it should be viewed “on the bases of intent and the possibility of implementing this intent by the harm done”. [FN184] ------------------------------------------------------------------------------------------------- [FN184] N. Robinson, op. cit., p. 18. ------------------------------------------------------------------------------------------------- The construction of genocide as regards the Srebrenica massacre made by the ICTY in the Krstic and the Blagojevic cases (the latter Judgment being appealable), is based on erroneous reasoning. In the case of Srebrenica it has not been proved that there existed a genocidal plan, either local or regional, that would be considered effected by the committed massacre. Therefore, the Trial Chambers attempted to find alleged genocidal intent in the form of inference from the facts presented. It appears, however, that the procedure of inference has not been followed lege artis, by respecting inherent requirements which inference as such necessarily implies. The substratum from which special intent may be inferred must satisfy with respect to its components the relevant standards, both quantitative and qualitative. As far as qualitative conditions are concerned, the inferential substratum must consist of acts capable in objective terms of producing genocidal effects or being constitutive of genocide. It seems obvious, even in the jurisprudence of the Tribunal, that transfer of women, children and elderly per se does not possess such genocidal [p577] capacity. In fact, the transfer has served to the Trial Chamber as a subsidiary source for inference of genocidal intent, as the result of the fact that “killings” as primary source of inference have not been sufficient and credible source in that regard. Namely, it appears that both the scope and the object of killing allow only the interpretation expressed in the Krstic case that “selective genocide” took place, a notion which, in the light of the requirements established in Article II of the Convention, represents no more than contradictio in adjecto. “Selective genocide”, being essentially non-genocide, has been turned into genocide by means of construction of the genocidal intent from sources other than killings, i.e., those consisting of acts which are not constitutive of genocide. Thus constructed, genocidal intent is then taken as determinable as regards the nature of acts like forced displacement and the loss suffered by survivors (Krstic, Trial Judgment, para. 543; Blagojevic, Trial Judgment, paras. 644, 654), which the majority takes as “the actus reus of causing serious bodily or mental harm”, as defined in Article II (b) of the Convention (Judgment, para. 290). Such a procedure may be considered as impermissible. Deduction of genocidal intent from acts which per se cannot have genocidal effects and, as such, cannot be considered as acts in terms of Article II of the Convention, inevitably leads to the watering down of the notion of genocide as established by the Convention. [FN185] ------------------------------------------------------------------------------------------------- [FN185] William A. Schabas, “Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the Former Yugoslavia”, 25 Fordham International Law Journal (2001), pp. 45-46. ------------------------------------------------------------------------------------------------- Acts incapable of producing genocidal effects may have only confirmatory or supportive effects in relation to the already established genocidal intent. As regards the Srebrenica massacre, the ICTY has, in effect, by inferring alleged genocidal intent from an improper substratum, transformed possible confirmatory or supportive effects of inference from such a substratum into constitutive effects. In a word, the ICTY resorted to a construction instead of inference of genocidal intent. Even if, hypothetically, genocidal intent in Srebrenica were proved, it would be possible to speak rather of an attempt to commit genocide than of genocide itself. It appears that the Trial Chamber proceeded from the distinction that is untenable as regards the nature of ethnic cleansing. Even though it holds expressis verbis that ethnic cleansing cannot be equated with genocide, it uses it as a substratum for inference of genocidal intent. [p578] 1.6. The true legal meaning of the Judgments of the ICTY in the Blagojevic and Krstic cases 151. General Krstic was sentenced for complicity in genocide. By its very nature, complicity in genocide is an accessory offence. Complicity as such is not a cause of consequences, and of acts committed after them, but just a condition, or one of the conditions for them. The Genocide Convention draws a clear distinction between genocide and complicity in genocide. That distinction is strictly made in Articles III, IV, V, VI, VII and VIII by the use of the formula “genocide and . . . other acts enumerated in Article III”. The expression “acts of genocide” occurs only in Article VIII, indicating that the expression refers to the five subparagraphs of Article II, and not to the “other acts” defined in Article III. [FN186] Being of a qualitative nature, the distinction between genocide and complicity in genocide implies that they are mutually exclusive. ------------------------------------------------------------------------------------------------- [FN186] W. Schabas, Genocide in International Law, 2000, p. 155. ------------------------------------------------------------------------------------------------- In the absence of a perpetrator of genocide as the principal crime, General Krstic was, in fact, condemned for complicity in the act of killing and not of genocide as such. True, the act of killing is one of the acts determined by Article II of the Convention as constituting the actus reus of genocide in the normative sense, but an act which constitutes a crime of extermination or a war crime. 152. False in that the sense of the criminal law is one thing, and that of international crime is another. The perception that equates a criminal wrong with a crime essentially reduces the notion of crime to illegality as an objective element of crime. However, the notion of crime is based on a symbiosis of two elements - objective, in terms of illegality of a concrete act or omission, and subjective, in terms of individualized, personalized guilt. The notion of crime thus exists as the result of a linkage of wrong and individualized guilt. Such a concept of crime is common heritage in modern criminal laws on which is also based the very categorization of criminal law. In the matter of international criminal law, for instance, without a subjective element in various forms that a guilty mind may assume, it is not possible to draw a proper distinction between genocide, crime against humanity and war crime. Even in crimes of strict liability a subjective element is necessary applied in the form of absolute presumption of guilt. International crime implies an accumulation of several components, one of them being a perpetrator of a crime. As the ICTY repeatedly stated: “In order to establish individual criminal responsibility for planning, instigating, ordering and otherwise aiding and abetting in the [p579] planning and preparation of a crime, referred to in Articles 2 to 5 of the Statute, proof is required that the crime in question has actually been committed by the principal offender(s).” [FN187] ------------------------------------------------------------------------------------------------- [FN187] ICTR, Prosecutor v. Akayesu, Trial Judgment, para. 473; ICTY, Prosecutor v. Blaskic´, Trial Judgment, para. 278; ICTY, Prosecutor v. Kordic´, Trial Judgment, para. 386; ICTY, Prosecutor v. Stakic´, Trial Judgment, para. 445; ICTY, Prosecutor v. Tadic, Appeals Judgment, para. 229; ICTY, Prosecutor v. Aleksovski, Appeals Judgment, para. 164; ICTY, Prosecutor v. Furundzija, Trial Judgment, para. 235; ICTY, Prosecutor v. Vasiljevic´, Trial Judgment, para. 70; ICTY, Prosecutor v. Naletilic´, Trial Judgment, para. 63; ICTY, Prosecutor v. Simic´, Trial Judgment, para. 161; emphasis added. ------------------------------------------------------------------------------------------------- The concrete finding of the Tribunal is a fortiori valid for crimes characterized by special intent, such as genocide. Without the perpetrator as a person with a mind guilty of the destruction of an ethnic, national, religious or racial group, it is legally impossible to talk about genocide as committed crime. The guilt is a subjective element without which there is no crime in the legal sense. The very act is not per se sufficient to constitute a crime; it is merely a strong indication of its existence. As a criminal act does not exist without a perpetrator, so the guilt, as indispensable element of a crime, does not exist in legal terms as abstract, non-individualized guilt. That is the substance of the notion of individual criminal responsibility. As a rule, the physical act, violating criminal law norms, transcends into a crime by fulfilment of the subjective requirement, i.e., the guilty mind of a perpetrator. Without guilt properly established in regard to the person or group of persons, it represents criminal wrong (Unrecht; illicite criminel) only. 153. General Krstic was convicted as part of a “joint criminal enterprise”. In the absence of a genocidal plan until the days immediately preceding the killing, as the Trial Chamber found, General Krstic “could only surmise that the original objective of ethnic cleansing by forcible transfer had turned into a lethal plan to destroy the male population of Srebrenica”. [FN188] ------------------------------------------------------------------------------------------------- [FN188] ICTY, Prosecutor v. Krstic, Trial Judgment, para. 622. ------------------------------------------------------------------------------------------------- Some observations seem to be of crucial importance here. The notion of “joint criminal enterprise” being based on the natural and foreseeable consequences of the particular act, by its nature belongs to a negligence-type offence hardly reconcilable with the most serious crimes, especially genocide characterized essentially by special intent. As such joint criminal enterprise “is a form of anti-social behaviour judged by a different yardstick than those who commit crimes with malice and premeditation”. [FN189] [p580] ------------------------------------------------------------------------------------------------- [FN189] W. Schabas, “Mens rea and the ICTY”, 37 New England Law Review, 2003, p. 1033. ------------------------------------------------------------------------------------------------- What is more important in casu, the notion of “joint criminal enterprise” obviously does not belong to the law of genocide established by the Convention. The punishable acts other than genocide enumerated exhaustively in Article III of the Genocide Convention do not comprise a “joint criminal enterprise”. All of them expressing the requirement in the chapeau of Article II rest on a subjective standard of the assessment of mens rea. In contrast, the “joint criminal enterprise” implies rather an objective standard framed in terms of reasonableness more appropriate to vicarious civil responsibility than to criminal liability. Moreover, it is not enumerated as a form of participation in Article 7 (1) of the ICTY Statute, being, in fact, a creation of judges of the ICTY [FN190] perhaps disregarding the principle nullum crimen nulla poena sine lege. Its effects amount to an expansion of the mens rea element of the crime of genocide with dangerous consequences. ------------------------------------------------------------------------------------------------- [FN190] ICTY, Prosecutor v. Furundzija, Trial Judgment, paras. 199-226; ICTY, Prosecutor v. Tadic, Trial Judgment, para. 190. ------------------------------------------------------------------------------------------------- As emphasized by the Trial Chamber (Judges May, Bennouna and Robins) in the Kordic´ Judgment: “Stretching notions of individual mens rea too thin may lead to the imposition of criminal liability on individuals for what is actually guilt by association, a result that is at odds with the driving principles behind the creation of this International Tribunal.” [FN191] ------------------------------------------------------------------------------------------------- [FN191] ICTY, Prosecutor v. Kordic, Trial Judgment, para. 219. ------------------------------------------------------------------------------------------------- The dangers of “guilt by association” were diagnosed by the Tribunal in its first Annual Report. The Tribunal held that it may lead to “collective responsibility” as a primitive and archaic concept meaning that the “whole group will be held guilty of massacres, torture, rape, ethnic cleansing, the wanton destruction of cities and villages”. And history shows “that clinging to feelings of ‘collective responsibility’ easily degenerates into resentment, hatred and frustration and inevitably leads to further violence and new crimes”. [FN192] ------------------------------------------------------------------------------------------------- [FN192] Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, Official Records of the General Assembly/Security Council, Forty-ninth Session/Forty-ninth Year, United Nations doc. A/49/342-S/1994/1007, para. 16. ------------------------------------------------------------------------------------------------- (Signed) Milenko KRECA. |
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