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[p412]
THE COURT,
composed as above, after deliberation,
delivers the following Judgment :
1. On 2 July 1999, the Government of the Republic of Croatia (hereinafter
“Croatia”) filed an Application against the Federal Republic of Yugoslavia
(hereinafter “the FRY”) in respect of a dispute concerning alleged
violations of the Convention on the Prevention and Punishment of the Crime
of Genocide, approved by the General Assembly of the United Nations on 9
December 1948 (hereinafter “the Genocide Convention” or “the Convention”).
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
Registrar immediately communicated a certified copy of the Application to
the Government of the FRY ; and, in accordance with paragraph 3 of that
Article, all other States entitled to appear before the Court were notified
of the Application.
3. Pursuant to the instructions of the Court under Article 43 of the Rules
of Court, the Registrar addressed to States parties to the Genocide
Convention the notification provided for in Article 63, paragraph 1, of the
Statute. The Registrar also sent to the Secretary-General of the United
Nations the notification provided for in Article 34, paragraph 3, of the
Statute and subsequently transmitted to him copies of the written
proceedings.
4. By an Order dated 14 September 1999, the Court fixed 14 March 2000 as the
time-limit for the filing of the Memorial of Croatia and 14 September 2000 as
the time-limit for the filing of the Counter-Memorial of the FRY.
5. By an Order dated 10 March 2000, the President of the Court, at the
request of Croatia, extended the time-limit for the filing of the Memorial to
14 September 2000 and accordingly extended the time-limit for the filing of
the Counter-Memorial of the FRY to 14 September 2001.
6. By a letter dated 26 May 2000, the Agent of Croatia requested the Court,
for reasons stated in that letter, to extend by a further period of six
months the time-limit for the filing of its Memorial. By a letter dated 6
June 2000, the Agent of the FRY informed the Court that his Government was
not opposed to the request by Croatia on the condition that it would be
granted the same extension for the filing of its Counter-Memorial.
7. By an Order dated 27 June 2000, the Court extended the time-limits to 14
March 2001 and 16 September 2002, respectively, for the filing of the
Memorial of Croatia and the Counter-Memorial of the FRY. Croatia duly filed
its Memorial within the time-limit thus extended.
8. 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: Croatia chose
Mr. Budislav Vukas and the FRY chose Mr. Milenko Krec´a.
9. On 11 September 2002, within the time-limit provided for in Article 79,
paragraph 1, of the Rules of Court as adopted on 14 April 1978, the FRY
[p416]raised preliminary objections relating to the Court’s jurisdiction to
entertain the case and to the admissibility of the Application. Accordingly,
by an Order of 14 November 2002, the Court stated that, by virtue of Article
79, paragraph 3, of the Rules of Court as adopted on 14 April 1978, the
proceedings on the merits were suspended, and fixed 29 April 2003 as the
time-limit for the presentation by Croatia of a written statement of its
observations and submissions on the preliminary objections raised by the
FRY. Croatia filed such a statement within the time-limit thus fixed.
10. By a letter of 8 November 2002, the Government of Bosnia and
Herzegovina requested to be furnished with copies of the pleadings and
annexed documents in the case. Having ascertained the views of the Parties
pursuant to Article 53, paragraph 1, of the Rules of Court, the President of
the Court decided to grant that request. The Registrar communicated that
decision to the Government of Bosnia and Herzegovina and to the Parties by
letters of 11 December 2002.
11. 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”. Following the announcement of the
result of a referendum held in Montenegro on 21 May 2006 (as contemplated in
the Constitutional Charter of Serbia and Montenegro), the National Assembly
of the Republic of Montenegro adopted a declaration of independence on 3
June 2006 (see paragraph 23 below).
12. By a letter dated 11 April 2007, the Registrar, in accordance with
Article 69, paragraph 3, of the Rules of Court, asked the Secretary-General
of the United Nations to inform him whether or not the United Nations
intended to present observations in writing within the meaning of the said
provision. In a letter dated 7 May 2007, the Secretary-General indicated
that the United Nations did not intend to submit any such observations.
13. On 1 April 2008, the Co-Agent of Serbia provided the Registry with nine
additional documents which it wished to produce in the case, under Article
56, paragraph 1, of the Rules of Court. By a letter dated 24 April 2008, the
Agent of Croatia informed the Court that his Government had no objection to
the production of these documents and that it wished, for its part, to
produce two new documents. By the same letter, the Agent of Croatia
requested that the Court call upon the Respondent, under Article 49 of its
Statute and Article 62, paragraph 1, of the Rules of Court, to produce a
certain number of documents. By a letter dated 29 April 2008, the Agent of
Croatia provided additional information relating to the said request.
14. By a letter dated 2 May 2008, the Agent of Serbia informed the Court
that his Government did not object to the production of the two new
documents which Croatia wished to produce in the case. He further informed
the Court of his Government’s observations with regard to Croatia’s request
that the Court call upon the Respondent to produce a certain number of
documents, and expressed, inter alia, “certain doubts as to whether the
given request submitted at this stage of the proceedings and in this moment
of time could serve the interests of a sound administration of justice”.
15. On 6 May 2008, the Registrar notified the Parties that the Court had
decided to authorize the production of the documents they wished to submit
under Article 56 of the Rules of Court; these documents, accordingly, were
[p417] added to the case file. The Registrar further informed the Parties of
the Court’s decision not to accede, at this stage of the proceedings, to
Croatia’s request that the Court call upon the Respondent, under Article 49
of the Statute and Article 62, paragraph 1, of the Rules of Court, to
produce a certain number of documents. He indicated to the Parties that the
Court was not satisfied that the production of the requested documents was
necessary for the purpose of ruling on preliminary objections. The Registrar
also explained that the Court considered that Croatia had failed to provide
sufficient reason to justify the great late-ness of its request and that to
accede to this request made at this very late juncture would, in addition,
raise many practical problems.
16. By letters dated 6 May 2008, the Registrar informed the Parties that the
Court asked them to address, during the hearings, the issue of the capacity
of the Respondent to participate in proceedings before the Court at the time
of filing of the Application, given the fact that the issue had not been
addressed as such in the written pleadings.
18. Pursuant to Article 53, paragraph 2, of its 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.
Public sittings were held from 26 May to 30 May 2008, at which the Court
heard the oral arguments and replies of:
For Croatia : H.E. Mr. Ivan Šimonovic´,
H.E. Ms Andreja Metelko-Zgombic´, Mr. Philippe Sands, Mr. James Crawford.
For Serbia : Mr. Tibor Varady, Mr. Vladimir Djeric´, Mr. Andreas Zimmermann.
19. At the hearings, a question was put by a Member of the Court and replies
given orally and in writing, in accordance with Article 61, paragraph 4, of
the Rules of Court. Pursuant to Article 72 of the Rules of Court, Croatia
presented written observations on the written reply received from Serbia.
20. In its Application, the following claims were made by Croatia:
“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, Croatia requests the Court to adjudge and declare as
follows:
(a) that the Federal Republic of Yugoslavia has breached its legal
obligations toward the people and Republic of Croatia 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 the Federal Republic of Yugoslavia has an obligation to pay to the
Republic of Croatia, in its own right and as parens patriae for its
citizens, reparations for damages to persons and property, as well as to the
Croatian economy and environment caused by the foregoing [p418] violations
of international law in a sum to be determined by the Court. The Republic of
Croatia reserves the right to introduce to the Court at a future date a
precise evaluation of the damages caused by the Federal Republic of
Yugoslavia.”
21. In the written proceedings, the following submissions were presented by
the Parties:
On behalf of the Government of Croatia,
in the Memorial:
“On the basis of the facts and legal arguments presented in this Memorial,
the Applicant, the Republic of Croatia, respectfully requests the
International Court of Justice to adjudge and declare:
1. That the Respondent, the Federal Republic of Yugoslavia, is responsible
for violations of the Convention on the Prevention and Punishment of the
Crime of Genocide:
(a) in that persons for whose conduct it is responsible committed genocide
on the territory of the Republic of Croatia, including in particular
against members of the Croat national or ethnical group on that territory,
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;
with the intent to destroy that group in whole or in part, contrary to
Article II of the Convention;
(b) in that persons for whose conduct it is responsible conspired to commit
the acts of genocide referred to in paragraph (a), were complicit in respect
of those acts, attempted to commit further such acts of genocide and incited
others to commit such acts, contrary to Article III of the Convention;
(c) in that, aware that the acts of genocide referred to in paragraph (a)
were being or would be committed, it failed to take any steps to prevent
those acts, contrary to Article I of the Convention;
(d) in that it has failed to bring to trial persons within its jurisdiction
who are suspected on probable grounds of involvement in the acts of genocide
referred to in paragraph (a), or in the other acts referred to in paragraph
(b), and is thus in continuing breach of Articles I and IV of the
Convention.
2. That as a consequence of its responsibility for these breaches of the
Convention, the Respondent, the Federal Republic of Yugoslavia, is under the
following obligations:
(a) to take immediate and effective steps to submit to trial before the
appropriate judicial authority, those citizens or other persons within its
jurisdiction who are suspected on probable grounds of having [p419]
committed acts of genocide as referred to in paragraph (1) (a),or any of the
other acts referred to in paragraph (1) (b), in particular Slobodan
Miloševic´, the former President of the Federal Republic of Yugoslavia, and
to ensure that those persons, if convicted, are duly punished for their
crimes;
(b) to provide forthwith to the Applicant all information within its
possession or control as to the whereabouts of Croatian citizens who are
missing as a result of the genocidal acts for which it is responsible, and
generally to co-operate with the authorities of the Republic of Croatia to
jointly ascertain the whereabouts of the said missing persons or their
remains;
(c) forthwith to return to the Applicant any items of cultural property
within its jurisdiction or control which were seized in the course of the
genocidal acts for which it is responsible; and
(d) to make reparation to the Applicant, in its own right and as parens
patriae for its citizens, for all damage and other loss or harm to person
or property or to the economy of Croatia caused by the foregoing violations
of international law, in a sum to be determined by the Court in a subsequent
phase of the proceedings in this case. The Republic of Croatia reserves the
right to introduce to the Court a precise evaluation of the damages caused
by the acts for which the Fed-eral Republic of Yugoslavia is held
responsible.
The Republic of Croatia reserves the right to supplement or amend these
submissions as necessary.”
On behalf of the Government of Serbia,
in the preliminary objections:
“For the reasons advanced above, the Federal Republic of Yugoslavia is
asking the Court:
to uphold the First Preliminary Objection and to adjudge and declare that it
lacks jurisdiction over the claims brought against the Federal Republic of
Yugoslavia by the Republic of Croatia.
Or, in the alternative,
(a) to uphold the Second Preliminary Objection and to adjudge and declare
that claims based on acts or omissions which took place before the FRY came
into being (i.e. before 27 April 1992) are inadmissible;
and
(b) to uphold the Third Preliminary Objection, and to adjudge and declare
that specific claims referring to:
taking effective steps to submit to trial Mr. Miloševic´ and other persons;
providing information regarding the whereabouts of missing Croatian
citizens; and
return of cultural property; are inadmissible and moot.
The Respondent reserves its right to supplement or amend its submissions in
the light of further pleadings.” [p420]
On behalf of the Government of Croatia,
in the written statement containing its observations and submissions on the
preliminary objections raised by the FRY:
“On the basis of the facts and legal arguments presented in these Written
Observations, the Republic of Croatia respectfully requests the
International Court of Justice to reject the First, Second and Third
Preliminary Objections of the FRY (Serbia and Montenegro) (with the
exception of that part of the Second Preliminary Objection which relates to
the claim concerning the submission to trial of Mr. Slobodan Miloševic´),
and accordingly to adjudge and declare that it has jurisdiction to
adjudicate upon the Application filed by the Republic of Croatia on 2 July
1999.”
22. At the oral proceedings, the following submissions were presented by the
Parties:
On behalf of the Government of Serbia,
at the hearing of 29 May 2008:
“For the reasons given in its written submissions and its oral pleadings,
Serbia requests the Court to adjudge and declare :
1. that the Court lacks jurisdiction,
or, in the alternative :
2. (a) that claims based on acts and omissions which took place prior to 27
April 1992 are beyond the jurisdiction of this Court and inadmissible;
and
(b) that claims referring to
submission to trial of certain persons within the jurisdiction of Serbia,
providing information regarding the whereabouts of missing Croatian
citizens, and
— return of cultural property are beyond the jurisdiction of this Court and
inadmissible.”
On behalf of the Government of Croatia,
at the hearing of 30 May 2008:
“On the basis of the facts and legal arguments presented in our Written
Observations, as well as those during these oral pleadings, the Republic of
Croatia respectfully requests the International Court of
Justice to:
(1) reject the first, second and third preliminary objection of Serbia, with
the exception of that part of the second preliminary objection which relates
to the claim concerning the submission to trial of Mr. Slobodan Miloševic´,
and accordingly to
(2) adjudge and declare that it has jurisdiction to adjudicate upon the
Application filed by the Republic of Croatia on 2 July 1999.” [p421]
I. IDENTIFICATION OF THE RESPONDENT PARTY
23. The Court has first to consider a question concerning the identification
of the respondent Party before it in these proceedings. By a letter dated 3
June 2006, the President of the Republic of Serbia (hereinafter “Serbia”)
informed the Secretary-General of the United Nations that, following the
declaration of independence adopted by the National Assembly of the Republic
of Montenegro,
“the membership of the state union Serbia and Montenegro in the United
Nations, including all organs and organizations of the United Nations
system, [would be] continued by the Republic of Serbia, on the basis of
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”.
24. By a letter of 16 June 2006, the Minister for Foreign Affairs 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 Montene-gro” 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 of 30
June 2006, addressed to the Secretary-General, the Minister for Foreign
Affairs confirmed the intention of Serbia to continue to exercise its rights
and honour its commitments deriving from international treaties concluded
by Serbia and Montenegro. He specified that “[a]ll 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”.
25. 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.
26. By letters dated 19 July 2006, the Registrar requested the Agent of
Croatia, the Agent of Serbia and the Minister for Foreign Affairs of
Montenegro to communicate to the Court the views of their Governments on
the consequences to be attached to the above-mentioned developments
regarding the identity of the Respondent in the case. On the same date,
similar letters were addressed to the Parties in the case concerning
Application of the Convention on the Prevention and Punishment [p422] of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Mon-tenegro), which
had been not only instituted but also heard on the merits before the
independence of Montenegro.
27. By a letter dated 22 July 2006, the Agent of Serbia 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 [being] Serbia, the other [being] 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”.
28. By a letter dated 29 November 2006, addressed to the Court, the Chief
State Prosecutor of Montenegro, after indicating her capacity to act as a
legal representative of Montenegro, drew attention to the fact that,
following the referendum held in Montenegro on 21 May 2006, the National
Assembly of Montenegro had pronounced the independence of Montenegro. In the
view of the Chief State Prosecutor, Montenegro had become an independent
State with full international legal personality within its existing borders.
She further stated that:
“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”.
29. On 26 February 2007 the Court gave judgment in the case concerning
Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), in which it
decided that Serbia remained a respondent in that case, “and at the date of
[that] Judgment [was] indeed the only Respondent” (Judgment, I.C.J. Reports
2007 (I), p. 76, para. 77).
30. By a letter dated 15 May 2008, the Agent of Croatia referred to Article
60 of the Constitutional Charter of Serbia and Montenegro and to paragraphs
76 and 77 of the 2007 Judgment. Given those circumstances, the Agent of
Croatia confirmed that the proceedings instituted by Croatia on 2 July 1999
were “maintained against [the] Republic of Serbia as Respondent”. He further
noted that this conclusion was “without prejudice to the potential
responsibility of [the] Republic of Montenegro and the possibility of
instituting separate proceedings against it”. [p423]
31. The Court observes that the facts and events on which the submissions
of Croatia on the merits are based occurred at a period of time when Serbia
and Montenegro were part of the same State.
32. The Court further notes that Serbia has accepted “continuity between
Serbia and Montenegro and the Republic of Serbia” (see paragraph 27 above),
and said that it would honour “its commitments deriving from international
treaties concluded by Serbia and Montenegro” (see paragraph 24 above), which
would include commitments under the Genocide Convention. Montenegro, on the
other hand, is a new State admitted as such to the United Nations. It does
not continue the international legal personality of the State union of
Serbia and Montenegro.
33. As in the case concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Serbia and Montenegro), the Court must recall the 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).
The question whether in this case such consent exists on the part of Serbia
is one of the issues raised by the preliminary objections, the subject of
the present Judgment. Montenegro made clear in its letter of 29 November
2006 (see paragraph 28 above) that it does not give its consent to the
jurisdiction of the Court over it for the purposes of the present dispute.
The events referred to above (see paragraphs 23-25 and 32) clearly show
that Montenegro does not continue the legal personality of Serbia and
Montenegro; it cannot therefore have
acquired,onthatbasis,thestatusofRespondentinthe presentcase.Furthermore,
the Applicant did not in its letter of 15 May 2008 assert that Montenegro
is still a party to the present case (see paragraph 30 above).
34. The Court therefore concludes that Serbia is the sole Respondent in the
case. The name of Serbia will thus be used when referring to the Respondent,
except when it follows from the historical context that reference has to be
made to the FRY or to Serbia and Montenegro.
II. GENERAL OVERVIEW OF THE ARGUMENTS OF THE PARTIES
35. In its Application dated 2 July 1999 the Government of Croatia,
referring to acts which occurred during the conflict that took place between
1991 and 1995 in the territory of the former Socialist Federal Republic of
Yugoslavia (hereinafter the “SFRY”), contended that the FRY had committed
violations of the Genocide Convention. The Government [p424] of the FRY
contested the admissibility of the Application as well as the jurisdiction
of the Court under Article IX of the Genocide Convention on several grounds
(see paragraphs 21 and 22 above).
The Court will now give a general overview of the arguments of the Parties
before presenting them in more detail when examining the different
preliminary objections raised by the Respondent.
36. With regard to the question which the Parties were invited by the Court
to address (see paragraph 16 above), that of the capacity of the Respondent
under Article 35 of the Statute to participate in the present proceedings,
the Respondent claimed that it did not have such capacity, because, as the
Court had confirmed in 2004 in the cases concerning Legality of Use of Force,
it was not a Member of the United Nations until 1 November 2000 and
therefore not party to the Statute at the time of filing of the Application
on 2 July 1999. Croatia, however, argued that the FRY was a Member of the
United Nations at the time of filing of the Application and that even if that
was not the case, the status of Serbia within the United Nations in 1999 did
not affect the present proceedings as the Respondent became a Member of the
United Nations in 2000 and thereby validly gained capacity to take part in
the present proceedings.
37. The Respondent raised a preliminary objection concerning the
jurisdiction of the Court on the basis of Article IX of the Genocide
Convention. In the Application, Croatia had maintained that both Parties
were bound by the Genocide Convention as successor States of the SFRY.
Serbia stated that the Court’s jurisdiction in the present case, which was
instituted on 2 July 1999, could not be based on Article IX of the Genocide
Convention, in view of the fact that the FRY did not become bound by the
Convention in any way before 10 June 2001, the date at which its notification
of accession to the Genocide Convention became effective with a reservation
regarding Article IX; thus Serbia had never become bound by Article IX of
the Convention.
38. Serbia also contended that Croatia’s Application was inadmissible so far
as it refers to acts or omissions prior to the FRY’s proclamation of
independence on 27 April 1992. It stated that acts or omissions which took
place before the FRY came into existence could not be attributed to it.
Croatia stated that although Serbia’s preliminary objection, as stated in
its final submission 2 (a), is presented as an objection to the
admissibility of the claim, in point of fact Serbia seemed to be arguing
that the Court had no jurisdiction ratione temporis over acts or events
occurring before 27 April 1992. In this regard, it referred to the Court’s
Judgment of 11 July 1996 in which the Court stated that there are no
temporal limitations to the application of the Genocide Convention and to
its exercise of jurisdiction under the said Convention, in the absence of
reservations to that effect (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.
617, [p425] para. 34). During the oral pleadings, Serbia maintained the
alternative argument that the Court lacked jurisdiction ratione temporis for
acts or events that occurred before 27 April 1992, the date it came into
existence, on the grounds that this date was the earliest possible point in
time at which the FRY could have become bound by the Genocide Convention
(see paragraph 121 below).
39. Serbia maintained that Croatia’s submission 2 (a) in its Memorial
(paragraph 21 above) concerning the submission to trial of persons
suspected of having committed acts of genocide (including Slobodan
Miloševic´) was “inadmissible and moot”. Serbia contended that “[t]he
crimes ascribed to Mr. Miloševic´ and others in relation to the territory of
Croatia include[d] crimes against humanity, breaches of the Geneva
conventions and violations of the laws or customs of war” but did not
include genocide. Croatia accepted that its submission 2 (a) was now moot in
respect of those persons who have been transferred to the ICTY, including
Mr. Miloševic´. However, Croatia pointed out that a large number of persons
who are responsible for what Croatia considers to constitute genocidal acts
committed in its territory and who are claimed to be within the jurisdiction
of Serbia have still not been handed over to the ICTY or to Croatia nor
submitted to trial in Serbia.
40. Serbia asserted that Croatia’s submission 2 (b) in its Memorial
(paragraph 21 above), concerning missing persons, was “inadmissible and
moot”. Serbia maintained that this specific submission fell outside the scope
of the Genocide Convention and, in addition, had become moot since the
Government of the FRY had been co-operating with the Government of Croatia
since 1995 with a view to establishing the whereabouts of Croatian citizens
missing as a result of the armed conflict. Croatia affirmed that its
submission relating to the whereabouts of missing persons did fall within
the scope of the Genocide Convention. It maintained that Serbia had at its
disposal information and documentation on a large number of missing
persons. It added that a compromis-sory clause providing for the Court’s
jurisdiction — such as Article IX of the Genocide Convention — over a
dispute about the interpretation and application of a treaty established the
Court’s jurisdiction to award appropriate remedies, and that the provision
of information on the whereabouts of missing persons was an appropriate
remedy.
41. Serbia finally claimed that Croatia’s submission 2 (c) in its Memorial
(paragraph 21 above), concerning return of cultural property was
“inadmissible and moot”. According to Serbia, it is inadmissible because
jurisdiction with respect to alleged crimes of genocide cannot include
property claims regarding objects of art. Croatia considered that its claim
regarding the return of cultural property did fall within the scope of the
Genocide Convention. In Croatia’s view, it is recognized that genocide
[p426] may not only be committed through physical destruction of a group but
also through destruction of a group’s cultural identity.
42. The Court will examine these arguments in turn. It will first examine
the question of the capacity of Serbia to take part in the present
proceedings and will for this purpose briefly recall the series of events
relating to the status, at successive periods, of the SFRY, the FRY and
Serbia in relation to the United Nations.
III. BRIEF HISTORY OF THE STATUS OF THE FRY WITH REGARD TO THE UNITED
NATIONS
43. In the early 1990s the SFRY, a founding Member State of the United
Nations, comprised 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.
44. 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” adopted a declaration stating in particular:
[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.)
On the same date, the Permanent Mission of Yugoslavia to the United Nations
sent a Note with a similar wording to the Secretary-General (see paragraph
99 below).
45. On 19 September 1992, the Security Council adopted resolution 777
(1992), in which it considered that “the Federal Republic of Yugoslavia
(Serbia and Montenegro) cannot continue automatically the membership of the
former Socialist Federal Republic of Yugoslavia in [p427] the United
Nations”; it further recommended to the General Assembly that it “decide
that the FRY (Serbia and Montenegro) should apply for membership in the
United Nations and that it shall not participate in the work of the General
Assembly”.
46. On the recommendation of the Security Council, stated in its resolution
777 (1992), the General Assembly adopted resolution 47/1, on 22 September
1992, whereby it was decided that the FRY should apply for membership in the
United Nations and that it should not participate in the work of the General
Assembly.
47. 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
“request[ed] that [the Secretary-General] provide a legal explanatory
statement concerning the questions raised” (United Nations doc. A/47/474).
48. 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,
in substance, that “the only practical consequence” of resolution 47/1 was
to prohibit the FRY from participating in the work of the General Assembly,
but that it “neither terminates nor suspends Yugoslavia’s membership in the
Organization”. He added that the situation thus created would be terminated
by “[t]he admission to the United Nations of a new Yugoslavia” (see United
Nations doc. A/47/485).
49. Considering this sequence of events, the Court in its Judgments of 15
December 2004 in the cases concerning the Legality of Use of Force, observed
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” (Legality of Use of Force (Serbia and Montenegro v.
Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004 (I), 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 (ibid., citing I.C.J. Reports 2003, p. 31, para. 71).
50. This position, however, came to an end with a new development in 2000.
On 27 October 2000, Mr. Koštunica, the newly elected President of the FRY,
sent a letter to the Secretary-General requesting admission of the FRY to
membership in the United Nations.
51. On 1 November 2000, the General Assembly, by resolution 55/12, [p428]
“[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”.
IV. RELEVANCE OF PREVIOUS DECISIONS OF THE COURT
52. Central to the present proceedings is the question of the status and
position of the State known at the time of the filing of the Application as
the FRY, in relation to the Statute of the Court and to the Genocide
Convention. That question has been in issue in a number of previous
decisions of the Court. In the case concerning Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), there were two decisions on requests
for the indication of provisional measures (Orders of 8 April and 13
September 1993), a decision on preliminary objections (Judgment of 11 July
1996) and a decision on the merits (Judgment of 26 February 2007). In the
case concerning Application for Revision of the Judgment of 11 July 1996 in
the Case concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), the Court
delivered a Judgment on 3 February 2003. In the set of cases concerning the
Legality of Use of Force brought by the FRY against ten Member States of the
North Atlantic Treaty Organization the Court rendered Judgments in eight of
those cases on 15 December 2004 upholding preliminary objections on the
ground of a lack of capacity on the part of the Applicant to appear before
the Court. Both Parties to the present case have cited these various
decisions in support of their respective contentions. It may be convenient
at the outset for the Court to indicate to what extent it considers that
these decisions may have weight for the purpose of deciding the matters now
before it.
53. While some of the facts and the legal issues dealt with in those cases
arise also in the present case, none of those decisions were given in
proceedings between the two Parties to the present case (Croatia and
Serbia), so that, as the Parties recognize, no question of res judicata
arises (Article 59 of the Statute of the Court). To the extent that the
decisions contain findings of law, the Court will treat them as it treats all
previous decisions: that is to say that, while those decisions are in no way
binding on the Court, it will not depart from its settled jurisprudence
unless it finds very particular reasons to do so. As the Court has observed
in the case concerning the Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), while “[t]here
can be no question of holding [a State] to decisions reached by [p429] the
Court in previous cases” which do not have binding effect for that State, in
such circumstances “[t]he real question is whether, in [the current] case,
there is cause not to follow the reasoning and conclusions of earlier cases”
(Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 292, para. 28).
54. Furthermore, here the Parties are not merely citing previous decisions
of the Court which might be regarded as precedents to be followed in
comparable cases. The previous decisions cited here referred to the question
of the status of a particular State, the FRY, in relation to the United
Nations and to the Statute of the Court; and it is that same question in
relation to that same State that requires to be examined in the present
proceedings at the instance, this time, of Croatia. It would require
compelling reasons for the Court to depart from the conclusions reached in
those previous decisions.
55. The Court will consequently bear in mind that in the proceedings in the
course of which the above-cited Judgments and Orders were rendered (see
paragraph 52 above), it was not the contention either of Bosnia and
Herzegovina or, until 2002, of the FRY that the FRY was not a Member of the
United Nations (and thus was not a party to the Statute), or that it was not
a party to the Genocide Convention. It was only when the FRY, abandoning its
claim to continue the United Nations membership of the SFRY, was admitted
to the United Nations in 2000 that it advanced the opposite view, initially
in its Written Statement, filed on 20 December 2002, on the Preliminary
Objections submitted in the Legality of Use of Force cases. It was not
until the written and oral proceedings in those cases that the Court heard
an exchange of full argument between the parties on these points. The Court
will consider in the present Judgment the grounds adopted for the conclusion
to which it came, in those decisions, as regards the status of the
Respondent.
56. There have also been suggestions in argument by Croatia before the Court
that the previous cases mentioned above are relevant as showing, in
particular, that Serbia as a party to those cases initially adopted and put
forward a legal position from which it cannot now resile for purposes of
the present case. This contention relates only to the question of the legal
consequences to be drawn from the conduct of this State, and not strictly
speaking to the effect or relevance of the above-cited case law.
V. PRELIMINARY OBJECTION TO THE JURISDICTION OF THE COURT
(1) Issues of capacity to be a party to the proceedings
57. The first question to be addressed by the Court when examining the
Respondent’s first preliminary objection is whether the Parties in the [p430]
present case satisfy the general conditions, under Articles 34 and 35 of the
Statute, for capacity to participate in proceedings before the Court.
58. It should be recalled in this regard that, under Article 34, paragraph
1, of the Statute, “[o]nly States may be parties in cases before the Court”.
Article 35, paragraph 1, moreover lays down that “[t]he Court shall be open
to the States parties to the present Statute”. The latter pro-vision is to
be understood in the light of Article 93 of the Charter of the United
Nations; paragraph 1 of that Article states that “[a]ll Members of the
United Nations are ipso facto parties to the Statute of the International
Court of Justice”, but provision is made in paragraph 2 by way of exception
for cases in which a State not a Member of the United Nations may become a
party to the Statute of the Court. In respect of States which are not
parties to the Statute of the Court, as Members of the United Nations or
otherwise, the position is governed by Article 35, paragraph 2, of the
Statute. That paragraph on the one hand empowers the Security Council to lay
down the conditions under which the Court shall be open to such States and
on the other contains a reservation for “special provisions contained in
treaties in force”. Pursuant to the authority thus conferred upon it, the
Security Council adopted resolution 9 (1946) of 15 October 1946, providing
in substance that the Court shall be open to any State not a party to the
Statute which has previously deposited a declaration, either in respect of
one or more particular matters or with a more general ambit, whereby the
State undertakes to accept the jurisdiction of the Court in accordance with
the Charter and to comply in good faith with the decisions of the Court.
59. It is neither disputed nor disputable in the present case that both
Parties satisfy the condition laid down in Article 34 of the Statute:
Croatia and Serbia are States for purposes of Article 34, paragraph 1.
60. It is not disputed nor is it open to doubt that, at the date it filed its
Application, 2 July 1999, Croatia satisfied a condition under Article 35 of
the Statute sufficient for the Court to be “open” to it: at that date it was
a Member of the United Nations and, as such, therefore a party to the
Statute of the Court.
61. On the other hand the Parties disagreed whether Serbia satisfies, for the
purposes of the present case, the conditions under Article 35, paragraph 1
or paragraph 2, of the Statute and whether, in view of the foregoing, it has
capacity to participate in the present proceedings before the Court.
62. Reduced to their essentials, the Parties’ positions on this point may be
described as follows.
63. The Respondent contends that it was not a Member of the United Nations
at the date the Application was filed and thus was not a party to the Statute
of the Court on this basis — or on any other. The Court was therefore not
“open” to it within the meaning of Article 35, paragraph 1, of the Statute,
which should be applied as of the date of filing of the [p431] Application,
not any later date; accordingly, the fact that it later became a party to
the Statute of the Court — in 2000, as a result of its admission to the
United Nations — is irrelevant.
The Respondent further maintains that the Genocide Convention is not one of
the “treaties in force” referred to in the proviso in Article 35, paragraph
2, since this term embraces only treaties in force at the date on which the
Statute itself entered into force, as the Court recognized in its 2004
Judgments in the cases concerning Legality of Use of Force.Itis moreover a
fact that the Respondent has not made any declaration of the kind
contemplated by Security Council resolution 9 (1946). Consequently, the
Respondent argues, the Court is not “open” to it pursuant to Article 35,
paragraph 2, either.
Finally, the Respondent contends that the same result obtains where the
party failing to fulfil any of the conditions set out in Article 35 of the
Statute in a particular case is the respondent as where that party is the
applicant: that is to say that the Court is precluded from exercising
jurisdiction over the dispute between the two parties.
64. The Applicant in the present case contests these arguments, its
contention being essentially as follows.
First, the Respondent had in 1999 a status vis-à-vis the United Nations that
was sui generis, such that, albeit not a full-fledged Member, it remained a
party to the Statute of the Court and therefore had access to it pursuant to
Article 35, paragraph 1, of the Statute.
The Applicant further contends that even assuming that the Respondent was
not a party to the Statute when the proceedings were initiated, it
undoubtedly became one as from 1 November 2000, when it was admitted to the
United Nations, and is therefore now, a party, and that is sufficient to
enable the Court to exercise jurisdiction over it. In this connection the
Applicant cites the jurisprudence deriving from the 1924 Judgment in the
case concerning Mavrommatis Palestine Concessions (Judgment No. 2, 1924,
P.C.I.J., Series A, No. 2, p. 34). It also points out that its Memorial was
filed on 1 March 2001, after the Respondent had been admitted to the United
Nations, at a date when no objection to the institution of new proceedings
could have been based on Article 35.
Finally, and again in the alternative, even if the Court were to consider
that it is not “open” to the Respondent under Article 35, paragraph 1, of
the Statute, it should hold that it is open under paragraph 2 of that
Article. The Applicant maintains that the Genocide Convention is a “treaty
in force” for purposes of Article 35, paragraph 2, making it possible for
access to the Court to be given to States not parties to the Statute. The
Applicant is well aware that the Court took the opposite position in its
Judgments in 2004 in the Legality of Use of Force cases: it nevertheless
asks the Court to reconsider, and modify the interpretation it then gave of
the Statute provision in question, i.e., that “treaties in [p432] force” did
not embrace treaties dating from after the entry into force of the Statute.
65. Before proceeding with a more detailed analysis and examination of the
Parties’ arguments briefly summarized immediately above, the Court feels that
it should make a number of preliminary observations at this point. Most of
them are drawn from decisions it has rendered in the last 15 years, a period
during which the Court has had several opportunities to apply Article 34
and to interpret and apply Article 35 of the Statute, by reference in fact
to the legal position of the State which is the Respondent in the present
case.
66. It should first be observed that the question whether or not a State
meets the conditions of Article 35 of the Statute can be regarded either as
an issue relating to the Court’s jurisdiction ratione personae or as an
issue preliminary to the examination of jurisdiction. The Court sees no need
to settle this debate, any more than it felt obliged to do so in its earlier
decisions (see, e.g., Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 100, para. 136). Where
the conditions of Article 35 are not met, the Court is without jurisdiction
to adjudicate the dispute on the merits. From this standpoint, a Respondent
raising an objection on the basis that the conditions of Article 35 have not
been met must be deemed to be making a jurisdictional objection and, if the
Court sustains the argument, its judgment will be a finding of lack of
jurisdiction. Thus, Serbia is here asking the Court to decide, drawing on
its arguments relating to its first preliminary objection, that it is
without jurisdiction in the case.
67. Secondly, the issue arises whether the Court, if presented with both an
objection based on one party’s lack of access to the Court and an objection
based on lack of jurisdiction ratione materiae, — or indeed, which comes to
the same thing, an objection to jurisdiction advancing both of these grounds
— must necessarily examine the two questions in a prescribed order, so that
it could not consider the second (jurisdiction ratione materiae) until after
it has answered the first (access to the Court) in the affirmative.
The Court addressed this issue in its 2004 Judgments in the Legality of Use
of Force cases (see, e.g., Legality of Use of Force (Serbia and Montenegro
v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004 (I), pp.
298-299, para. 46). After pointing out that, as a general rule, it remained
free to select the ground on which to base its judgment where several
separate grounds were capable of leading to the same conclusion, and it
therefore remained free to decide the order in which to deal with these
questions, the Court determined that the position was otherwise in the
matter before it. It stated that, where the applicant’s right to access to
the Court has been challenged — as it had been — this [p433] “fundamental
question” had to be decided before any other, because, if the applicant was
not a party to the Statute, the Court was not open to it and accordingly it
could not “properly seise . . . the Court, whatever title of jurisdiction it
might . . . invoke” (Legality of Use of Force (Serbia and Montenegro v.
Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004 (I), pp.
298-299, para. 46).
The Court therefore found it necessary in those cases first to examine the
question of Serbia and Montenegro’s access to the Court, so as to determine
whether the Court could “exercise its judicial function” in respect of that
State, observing that it could then examine the issues involving
jurisdiction ratione materiae and any other jurisdictional issues “[o]nly if
the answer to that [first] question is in the affirmative”.
In the present case, even though no question arises as to seisin so far as
the Applicant is concerned, the Court considers that here also it is
appropriate first to examine the issues relating to application of Article
35 of the Statute.
68. Thirdly, the Court recalls that, as it pointed out in its Judgment of 26
February 2007 in the case concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Serbia and Montenegro), the question whether a State may properly appear
before the Court, on the basis of the Statute, is “one which the Court is
bound to raise and examine, if necessary, ex officio, and if appropriate
after notification to the parties” (I.C.J. Reports 2007 (I), p. 94, para.
122).
The first consequence of this is described as follows in that Judgment:
“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” (ibid.).
Obviously, it does not however follow that the Court is under an obligation
to treat this question expressly in the reasoning in any judgment in which
it rules on a preliminary objection to jurisdiction. If neither party has
raised the issue and the Court finds that the conditions of Articles 34 and
35 are satisfied in the case, it may well choose to omit from the reasoning
in the judgment any specific discussion of the point and to confine itself to
responding to the arguments raised by the parties. It may also choose, if it
finds appropriate, to deal with the point expressly in its reasoning.
If however the Court in a judgment on preliminary objections to
jurisdiction rejects them and upholds jurisdiction, without saying anything
on the question of access to the Court, the conclusion may be drawn that the
[p434] Court has perceived the conditions on access to have been satisfied.
As the Court stated in 2007 in respect of its 1996 Judgment in the same
case, dealing with the preliminary objections raised by the FRY:
“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 [that it had jurisdiction on the basis of Article IX of the
Genocide Convention to adjudicate upon the dispute] 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.” (Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia
and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 98-99, para. 132.)
69. The Respondent in 1996 and in 2007 was the same State as is Respondent
in the present case. The Court cannot but observe, however, that in the
present case no implicit finding that Serbia has the necessary capacity to
participate in the proceedings instituted by Croatia’s Applica-tion can be
inferred from any previous judgment of the Court. The Judgment of 11 July
1996 on jurisdiction 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, Judgment, I.C.J. Reports
1996 (II), p. 595), to which the Court gave full effect as res judicata in
its 2007 Judgment on the merits in the same case, does not of itself have
any authority as res judicata in the present case. The question of the
Respondent’s capacity must therefore be examined de novo, in the context of
the dispute now before the Court. The Respondent did not raise the question
of its lack of capacity to participate in proceedings in its preliminary
objections. The Court informed the Parties, by means of letters dated 6 May
2008 from the Registrar, of its wish to hear this issue addressed in the
hearings and it was so addressed; the issue is now before the Court.
70. The last series of preliminary observations relates to the order in
which the Court will now examine the various questions arising out of the
application of Article 35 of the Statute in the present case.
71. As noted above, the Parties argued the question whether the Genocide
Convention is a “treaty in force” for purposes of Article 35, paragraph 2,
of the Statute. If the answer were in the affirmative, and provided that at
the relevant date the Parties were bound vis-à-vis each other by this
Convention, including Article IX — a point to be examined later in this
Judgment —, it would follow that the Court was “open” to Serbia pursuant to
Article 35, paragraph 2, even if Serbia was not a party to the Statute at
that date and therefore did not satisfy the condition laid down in paragraph
1. [p435]
The Parties are in agreement that the Court addressed this question in its
2004 Judgments in the Legality of Use of Force cases and answered it in the
negative. It did so on the basis of, inter alia, its examination of the
travaux préparatoires of the provision, which led it to conclude that
“treaties in force” referred only to treaties already in force at the entry
into force of the Statute and not to treaties concluded subsequently, such
as the Genocide Convention (see, e.g., Legality of Use of Force (Serbia and
Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports
2004 (I), pp. 318-324, paras. 100-114).
The two Parties further agree that the position adopted by the Court in
those cases does not have the force of res judicata in the present case,
because those Judgments were rendered in different cases which did not
involve the same parties.
The Parties however recognize that these findings have great bearing for the
present case, as the Court does not depart from its settled jurisprudence
unless it finds very particular reasons to do so.
On the basis of these shared premises, the Parties reach different
conclusions: while Croatia invites the Court to reconsider its
jurisprudence on this point and to correct the error which it claims was
committed in 2004, Serbia asks the Court to maintain unchanged in the
present case its interpretation of the clause “special provisions contained
in treaties in force” in Article 35, paragraph 2.
72. The Court deems it appropriate in the present case to examine the
question of Serbia’s access to the Court on the basis of Article 35,
paragraph 1, before any examination on the basis of paragraph 2.
Only if the Court were to find that the Respondent was not a party to the
Statute of the Court at the relevant time — to be determined below — and
that, as a result, it did not satisfy the condition in paragraph 1, should
the Court address the question whether the Respondent can derive its
capacity to participate in the proceedings from the Genocide Convention, on
the basis of “special provisions contained in treaties in force” within the
meaning of paragraph 2.
73. The Court thus now turns to the question of whether Serbia is or was, at
the pertinent time, a party to the Statute, which would suffice, in any
event, to confer upon it the necessary capacity to participate in
proceedings before the Court, in whatever role.
74. The starting-point for the reasoning should be the following two
observations, which are not disputed by the Parties.
75. First, in its Judgments in 2004 in the Legality of Use of Force cases,
the Court clearly determined the legal status of the FRY, now Serbia, over
the period from the dissolution of the former SFRY to the admission of the
FRY to the United Nations on 1 November 2000.
After recalling that the FRY’s position vis-à-vis the United Nations [p436]
had remained uncertain and controversial throughout that period, the Court
itself having characterized it as sui generis in its Judgment on the
Application for Revision of the Judgment of 11 July 1996 in the Case
con-cerning 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), the Court recounted in detail the history of
relations between the FRY and the United Nations from the dissolution of the
former Yugoslavia until the State’s admission as a Member of the United
Nations on 1 November 2000. That led the Court to conclude:
“This new development effectively put an end to the sui generis position of
the Federal Republic of Yugoslavia within the United Nations, which, as the
Court has observed in earlier pronounce-ments, had been fraught with ‘legal
difficulties’ throughout the period between 1992 and 2000 . . . The Applicant
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. At the same time, it became clear that the sui generis position
of the Applicant could not have amounted to its membership in the
Organization.
In the view of the Court, 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-àvis 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 (I), pp. 310-311,
paras. 78-79). [p437]
76. There can be no doubt that for purposes of the present case the
aforementioned Judgments of 2004 do not have force of res judicata on this —
or any other — point, since they were given in different cases which did not
involve the same parties, as has already been noted above with respect to
another aspect of those Judgments (see paragraph 71).
Nevertheless, it is equally certain that they may be of relevance in the
present instance, as, first, they address the legal position of the
Respondent in the present case during a period — from 1992 to 2000 —
covering the date of filing of the Application on which the Court must rule,
and second as was recalled above (see paragraph 53), the Court departs from
settled jurisprudence only if it is of the opinion that there are very
particular reasons to do so.
That is the first consideration to be taken in account.
77. The second point is that, from 1 November 2000 and up to the date of the
present Judgment, the Respondent is a party to the Statute by virtue of its
status as a Member of the United Nations, that is to say pursuant to
Article 93, paragraph 1, of the Charter, which automatically grants to all
Members of the Organization the status of party to the Statute of the
Court.
Thus, it is indisputable — and neither Party in its argument has suggested
otherwise — that at the present time both Croatia and Serbia have access to
the Court on the basis of Article 35, paragraph 1, of the Statute. It
undoubtedly follows that a dispute between these two States could now be
referred to the Court providing, of course, that there was a basis of
jurisdiction ratione materiae allowing for submission of the dispute to the
Court.
Thus, had Croatia’s Application been filed on 2 November 2000, instead of 2
July 1999, no objection to jurisdiction could have been based on lack of
access to the Court within the meaning of Article 35 of the Statute, and the
Court would simply have had to ascertain whether there was a basis for
jurisdiction ratione materiae, that is to say a legal nexus between the
Parties such that each had consented to the jurisdiction of the Court to
settle its dispute with the other.
78. This brings the Court to address an issue of particular importance in
the present case: whether fulfilment of the conditions laid down in Article
35 of the Statute must be assessed solely as of the date of filing of the
Application, or whether it can be assessed, at least under the specific
circumstances of the present case, at a subsequent date, more precisely at a
date after 1 November 2000.
79. In numerous cases, the Court has reiterated the general rule which it
applies in this regard, namely: “the jurisdiction of the Court must
normally be assessed on the date of the filing of the act instituting
proceedings” (to this effect, see 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),
[p438] p. 613, para. 26; Questions of Interpretation and Application of the
1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 1998, p. 26, para. 44).
Given that, as indicated above, fulfilment of the conditions of Article 35
governs the jurisdiction of the Court — whether or not this is seen as an
element of jurisdiction ratione personae —, it is normally by reference to
the date of the filing of the instrument instituting proceedings that it must
be determined whether those conditions are met.
80. It is easy to see why this rule exists.
If at the date of filing of an application all the conditions necessary for
the Court to have jurisdiction were fulfilled, it would be unacceptable for
that jurisdiction to cease to exist as the result of a subsequent event. In
the first place, the result could be an unwarranted difference in treatment
between different applicants or even with respect to the same applicant,
depending on the degree of rapidity with which the Court was able to examine
the cases brought before it. Further, a respondent could deliberately place
itself beyond the jurisdiction of the Court by bringing about an event or
act, after filing of an application, as a result of which the conditions for
the jurisdiction of the Court were no longer satisfied — for example, by
denouncing the treaty containing the compromissory clause. That is why the
removal, after an application has been filed, of an element on which the
Court’s jurisdiction is dependent does not and cannot have any retroactive
effect. What is at stake is legal certainty, respect for the principle of
equality and the right of a State which has properly seised the Court to see
its claims decided, when it has taken all the necessary precautions to
submit the act instituting proceedings in time.
Conversely, it must be emphasized that a State which decides to bring
proceedings before the Court should carefully ascertain that all the
requisite conditions for the jurisdiction of the Court have been met at the
time proceedings are instituted. If this is not done and regardless of
whether these conditions later come to be fulfilled, the Court must in
principle decide the question of jurisdiction on the basis of the conditions
that existed at the time of the institution of the proceedings.
81. However, it is to be recalled that the Court, like its predecessor, has
also shown realism and flexibility in certain situations in which the
conditions governing the Court’s jurisdiction were not fully satisfied when
proceedings were initiated but were subsequently satisfied, before the Court
ruled on its jurisdiction.
82. In its Judgment of 30 August 1924 on the objection to jurisdiction
raised by the Respondent in the Mavrommatis Palestine Concessions case, the
Permanent Court of International Justice stated thus:
“itmust...be considered whether the validity of the institution of proceedings can
be disputed on the ground that the application was 30 [p439] filed before
Protocol XII [annexed to the Treaty of Lausanne] had become applicable. This
is not the case. Even assuming that before that time the Court had no
jurisdiction because the international obligation referred to in Article 11
[of the Mandate for Palestine] was not yet effective, it would always have
been possible for the applicant to re-submit his application in the same
terms after the coming into force of the Treaty of Lausanne, and in that
case, the argument in question could not have been advanced. Even if the
grounds on which the institution of proceedings was based were 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.” (Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 34.)
Similarly, the Permanent Court said in the case concerning Certain German
Interests in Polish Upper Silesia :
“Even if, under Article 23 [of the German-Polish Convention of 1922, the
compromissory clause invoked in the case], the existence of a definite
dispute were necessary, this condition could at any time be fulfilled by
means of unilateral action on the part of the applicant Party. And the Court
cannot allow itself to be hampered by a mere defect of form, the removal of
which depends solely on the Party concerned.” (Jurisdiction, Judgment No. 6,
1925, P.C.I.J., Series A, No. 6, p. 14.)
In the jurisprudence of the present Court, operation of the same idea is
discernible in the Northern Cameroons (Cameroon v. United Kingdom) case
(Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 28), and in the
case concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), in the passage stating:
“It would make no sense to require Nicaragua now to institute fresh
proceedings based on the [1956] Treaty [of Friendship], which it would be
fully entitled to do.” (Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 1984, pp. 428-429, para. 83.)
Finally, the Court was confronted more recently with a comparable situation
when it ruled on the preliminary objections 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,
Judgment, I.C.J. Reports 1996 (II), p. 595). The Respondent argued that the
Genocide Convention — the basis of jurisdiction — had only begun to apply
to relations between the two Parties on 14 December 1995, the date when,
pursuant to the Dayton-Paris [p440] Agreement, they recognized each other,
whereas the Application had been submitted on 20 March 1993, that is to say
more than two-and-a half years earlier. The Court responded to that argument
as follows:
“In the present case, even if it were established that the Parties, each of
which was bound by the Convention when the Application was filed, had only
been bound as between themselves with effect from 14 December 1995, the
Court could not set aside its jurisdiction on this basis, inasmuch as
Bosnia and Herzegovina might at any time file a new application, identical to
the present one, which would be unassailable in this respect.” (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.)
83. Croatia relies on this jurisprudence, which it contends can be directly
transposed to the present case. If Serbia is bound by the Genocide
Convention, including Article IX, as Croatia considers is the case, and,
since the Respondent has been a party to the Statute of the Court since 1
November 2000, it follows that the Applicant could at any time file a new
application, which would be unassailable in this respect. The reasoning of
the Court in the aforementioned cases should, according to Croatia, lead it
in this case also not to oblige the Applicant to bring fresh proceedings, so
that it would disregard the fact that Serbia only became a party to the
Statute after the proceedings had been instituted. In this respect, Croatia
emphasizes the date on which it filed its Memorial, 1 March 2001.
84. Serbia disputes these arguments, contending that the jurisprudence in
question is not applicable to the present case for two reasons. First, the
Respondent notes that in all of the precedents cited it was not the
respondent alone, which was unable to fulfil one of the conditions necessary
for the Court to uphold jurisdiction at the date the proceedings were
instituted, but this was not a point Serbia chose to rely on. Secondly and
more importantly, according to Serbia, the jurisprudence cannot be applied
where the unmet condition concerns the capacity of a party to participate in
proceedings before the Court, in accordance with Articles 34 and 35 of the
Statute, that is to say concerns a “fundamental question” which, as the
Court stated in 2004, must be examined before any other issue of
jurisdiction. Further, Serbia adds, the Court did not apply the “Mavrommatis
doctrine” in its 2004 Judgments in the Legality of Use of Force cases,
since, after finding that the Applicant was not a party to the Statute of the
Court at the date the Applications were filed and did not therefore have the
right of access to the Court, it held that it lacked jurisdiction, even
though it mentioned the fact that the Applicant had been a Member of the
United Nations since 1 November 2000. According to Serbia, this is
explained by the fact that when the Court is seised of a case in which
either the applicant or the respondent does not fulfil the [p441] conditions
of Articles 34 and 35 of the Statute, it cannot regard itself as having been
“properly” seised and does not even possess the compétence de la compétence,
that is to say the jurisdiction to determine whether it has jurisdiction to
decide the merits of the dispute. In such a case, it would be confronted
with an insuperable obstacle.
85. The Court observes that as to the first of these two arguments, given the
logic underlying the cited jurisprudence of the Court deriving from the 1924
Judgment in the Mavrommatis Palestine Concessions case (Judgment No. 2,
1924, P.C.I.J., Series A, No. 2), it does not matter whether it is the
applicant or the respondent that does not fulfil the conditions for the
Court’s jurisdiction, or both of them — as is the situation where the
compromissory clause invoked as the basis for jurisdiction only enters into
force after the proceedings have been instituted. The Court sees no
convincing reason why an applicant’s deficiency might be overcome in the
course of proceedings, while that of a respondent may not. What matters is
that, at the latest by the date when the Court decides on its jurisdiction,
the applicant must be entitled, if it so wishes, to bring fresh proceedings
in which the initially unmet condition would be fulfilled. In such a
situation, it is not in the interests of the sound administration of
justice to compel the applicant to begin the proceedings anew — or to
initiate fresh proceedings — and it is preferable, except in special
circumstances, to conclude that the condition has, from that point on, been
fulfilled.
86. In the view of the Court, the second argument mentioned above warrants
more detailed analysis.
First, it is true that all of the cited precedents concern cases where the
initially unfulfilled condition related to jurisdiction ratione materiae or
ratione personae in the narrow sense and not to the question of access to
the Court, which has to do with a party’s capacity to participate in any
proceedings whatever before the Court. Nevertheless, the Court cannot
endorse the radical interpretation advanced by Serbia, namely that whenever
it is seised by a State which does not fulfil the conditions of access under
Article 35, or seised of a case brought against a State which does not fulfil
those conditions, the Court does not even have the compétence de la
compétence, the competence to decide whether or not it has jurisdiction.
Nothing of the sort is to be found in the 2004 Judgments cited by Serbia
during the hearings. In those Judgments, the Court did no more than indicate
that the question of access to the Court was a “fundamental one” which
needed to be examined before the others, and that if the Applicant did not
fulfil the Article 35 conditions the Court had to deduce from that fact that
it had not been “properly seised”. Not being “properly seised” does not
mean that the Court lacks the competence necessary to decide on its own
jurisdiction, in other words to decide whether it has been properly seised
and whether the conditions necessary to allow it to hear the case on the
merits have been satisfied. That is true where it is the [p442] applicant
which, as in the Legality of Use of Force cases, does not fulfil the
conditions for access to the Court. It is true a fortiori when it is the
respondent which allegedly does not meet those conditions since in such
circumstances the act of seising the Court, performed by a State which does
have access to the Court, is not at issue: that is the case in the present
proceedings. The Court always possesses the compétence de la competence (see
Article 36, paragraph 6, of the Statute). In any event the Court notes that
Serbia asks it in its principal submission to decide by a judgment that it
lacked jurisdiction to entertain Croatia’s Application.
87. More importantly, the Court cannot accept Serbia’s argument that when
the defect is that one party does not have access to the Court, it is so
fatal that it can in no case be cured by a subsequent event in the course of
the proceedings, for example when that party acquires the status of party to
the Statute of the Court which it initially lacked.
As stated above, the question of access is clearly distinct from those
relating to the examination of jurisdiction in the narrow sense. But it is
nevertheless closely related to jurisdiction, inasmuch as the consequence is
exactly the same whether it is the conditions of access or the conditions of
jurisdiction ratione materiae or ratione temporis which are unmet: the Court
lacks jurisdiction to entertain the case. It is always within the context
of an objection to jurisdiction, as in the present case, that arguments will
be raised before the Court regarding the parties’ capacity to participate
in the proceedings.
That being so, it is not apparent why the arguments based on the sound
administration of justice which underpin the Mavrommatis case jurisprudence
cannot also have a bearing in a case such as the present one. It would not
be in the interests of justice to oblige the Applicant, if it wishes to
pursue its claims, to initiate fresh proceedings. In this respect it is of
no importance which condition was unmet at the date the proceedings were
instituted, and thereby prevented the Court at that time from exercising its
jurisdiction, once it has been fulfilled subsequently.
88. It is true that the Court apparently did not take account in its 2004
Judgments of the fact that Serbia and Montenegro had by that date become a
party to the Statute: indeed, the Court found that it lacked jurisdiction on
the sole ground that the Applicant did not have access to the Court in 1999,
when the Applications were filed, without taking its reasoning any further.
89. But if the Court abided in those cases strictly by the general rule that
its jurisdiction is to be assessed at the date of filing of the act
instituting proceedings, without adopting the more flexible approach
following from the other decisions cited above, that is justified by
particular considerations relevant to those cases.
It was clear that Serbia and Montenegro did not have the intention of [p443]
pursuing its claims by way of new applications. That State itself argued
before the Court that it was not, and never had been, bound by Article IX
of the Genocide Convention, even though that was the basis for jurisdiction
which it had initially invoked (e.g., Legality of Use of Force (Serbia and
Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports
2004 (I), pp. 292-293, para. 29). It is true that the Applicant in those
cases had let it be known that it did not intend to discontinue the
proceedings pending before the Court; but, given the legal position it was
asserting from that time on as to the Genocide Convention, it was out of the
question that, in the event of judgments rejecting its applications owing
to its lack of access to the Court at the date the proceedings had been
instituted, it would rely on the status it would then undoubtedly possess
of party to the Statute of the Court to submit fresh applications identical
in substance to the first. On this basis, and in the particular circumstances
of those cases, there would have been no justification for the Court to
disregard the FRY’s initial lack of capacity to seise the Court, on the
ground that the defect had been cured in the course of the proceedings. As
stated above (see paragraph 85), it is concern for judicial economy, an
element of the requirements of the sound administration of justice, which
justifies application of the jurisprudence deriving from the Mavrommatis
Judgment in appropriate cases. The purpose of this jurisprudence is to
prevent the needless proliferation of proceedings. No such consideration
obtained in 2004 to justify the Court departing at that time from the
principle holding that its jurisdiction must be established at the date of
filing of the applications. Indeed, Serbia and Montenegro took care not to
ask the Court to do so; while Croatia is asking the Court to apply the
jurisprudence of the Mavrommatis case to the present case, no such request
was made, or could logically have been made, by the Applicant in 2004.
90. Two additional considerations lend weight to the conclusion that there
is reason, in the circumstances of the present case, to look beyond the
legal situation prevailing at the date of the Application.
First, while, as noted above (see paragraph 80), a State filing an
application with the Court should normally be expected to demonstrate
sufficient care to avoid doing so prematurely, it cannot be said that the
Applicant in the current proceedings has shown any careless approach in
this regard. At the date the Application was filed, the Respondent considered
that it had the capacity to participate in proceedings before the Court, and
its position in that respect was a matter of public knowledge. In April
1999, the FRY had filed Applications instituting proceedings against ten
Member States of the North Atlantic Treaty Organization invoking Article IX
as a basis of jurisdiction. The Applicant could therefore feel entitled to
seise the Court on what at first sight seemed to be an appropriate basis of
jurisdiction. It is of course true that, as stated above (see paragraph 67),
questions of access to the Court, unlike those of consent to its
jurisdiction, are not matters of the will of the parties. However, Croatia’s
conduct does not reflect any circumstances that would warrant [p444] a
particularly strict application by the Court of the jurisprudence described
above.
Secondly, it should be noted that, while Croatia’s Application — a short
text comprising some ten pages — was filed on 2 July 1999, that is prior to
the admission of the FRY to the United Nations on 1 November 2000, its
Memorial on the merits, a document of 414 pages, was submitted on 1 March
2001, after that date.
Although it is not possible to equate the filing of a memorial with that of
an instrument instituting proceedings, since by definition a memorial
concerns proceedings which are already under way, it should be noted that
the Memorial is of considerable importance, not just because it expounds the
Applicant’s arguments, but also because it specifies the submissions. While
this cannot be considered a decisive element, it cannot be entirely ignored:
if Croatia had submitted the substance of its Memorial, on 1 March 2001, in
the form of a new application, as it could have done, no question with
respect to Article 35 of the Statute would have arisen.
91. The Court accordingly concludes that on 1 November 2000 the Court was
open to the FRY. Therefore, should the Court find that Serbia was bound by
Article IX of the Convention on 2 July 1999, the date on which proceedings
in the present case were instituted, and remained bound by that Article
until at least 1 November 2000, the Court would be in a position to uphold
its jurisdiction. This question will be examined in the next section.
92. In view of the above finding, the question whether the conditions laid
down in Article 35, paragraph 2, have been fulfilled (see paragraph 71
above) has no pertinence in the present case.
(2) Issues of jurisdiction ratione materiae
93. The Court now turns to the question of its jurisdiction ratione
materiae, which forms the second aspect of the first preliminary objection
submitted by Serbia requesting the Court to declare that it lacks
jurisdiction. According to Serbia, this aspect is an element of
jurisdiction ratione personae.
94. The basis of jurisdiction asserted by Croatia is Article IX of the
Genocide Convention, which provides as follows:
“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.”
It is common ground between the Parties that Croatia is, and has been at
[p445] all relevant times, a party to the Genocide Convention, and has not
made any reservation excluding the application of Article IX. Croatia
deposited a notification of succession with the Secretary-General of the
United Nations on 12 October 1992. It asserted that it had already been a
party prior thereto as a successor State to the SFRY from the date it
assumed responsibility for its international relations with respect to its
territory, namely from 8 October 1991. Serbia’s objection is to the effect
that it was not itself a party to that Convention at the date of filing of
the Application instituting proceedings (2 July 1999); it maintains that it
only became a party by accession in June 2001. Furthermore the notification
of accession by the FRY, dated 6 March 2001 and deposited on 12 March 2001,
contained a reservation to the effect that the FRY “does not consider itself
bound by Article IX of the Convention” (see the text in paragraph 116
below). When the Secretary-General, the depositary of the Convention,
notified States parties of the FRY’s notification of accession, objections
were made by Croatia (as well as by Bosnia and Herzegovina, and by Sweden);
the ground of Croatia’s objection was that the FRY “is already bound by the
Convention since its emergence as one of the five equal successor States” of
the former SFRY. Croatia also objected to the reservation made by the FRY to
the application of Article IX of the Convention, on the grounds that in the
view of Croatia it was “incompatible with the object and purpose of the
Convention”.
95. If, as Croatia contends, Serbia was already a party to the Genocide
Convention at the date when the present proceedings were instituted, any
change in the situation which might have been effected by the 2001
purported accession by the FRY or by the reservation attached to it could
not deprive the Court of the jurisdiction already existing under Article IX
of the Convention. The Court recalls that according to its established
jurisprudence, if a title of jurisdiction is shown to have existed at the
date of the institution of proceedings, any subsequent lapse or withdrawal
of the jurisdictional instrument is without effect on the jurisdiction of
the Court. The principle was established in the Nottebohm case
(Liechtenstein v. Guatemala) (Preliminary Objection, Judgment, I.C.J.
Reports 1953, p. 122), which related to an acceptance of compulsory
jurisdiction (under the optional clause of Article 36, paragraph 2, of the
Statute) which expired on a date subsequent to the institution of
proceedings citing that acceptance as the basis of jurisdiction. It has
subsequently been consistently applied (e.g., where a bilateral treaty
relied on as jurisdictional basis had been terminated by the time the Court
came to give judgment on the merits of the case (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 28, para. 36)).
96. If therefore the FRY was a party to the Genocide Convention, including
its Article IX, on 2 July 1999, the date on which proceedings were
instituted, and if it continued to be bound by Article IX of the Convention
[p446] until at least 1 November 2000, the date on which the FRY became a
party to the Statute of the Court, then, the Court today continues to have
jurisdiction.
It is thus not necessary for the Court to make a finding as to any legal
effect of the notification of accession to the Convention by Serbia dated 6
March 2001.
97. The reasons why it is disputed between the Parties whether Serbia was a
party to the Convention on the date on which these proceedings were
instituted are bound up with the history of the relationship to the
Convention of, first, the SFRY, and, subsequently, of the Respondent.
The SFRY signed the Genocide Convention on 11 December 1948, and deposited
an instrument of ratification, without reservation, on 29 August 1950; it is
common ground between the Parties that the SFRY was thus a party to the
Convention at the time in the 1990s when it began to disintegrate into
separate and independent States. The process of disintegration of the SFRY,
the appearance of its former constituent Republics as separate States, and
the efforts of the FRY to have its claim to continue the State,
international legal and political personality of the SFRY internationally
recognized, have been described in detail in paragraphs 43 to 51 above and
in a number of previous decisions of the Court (most recently in the case
concerning Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment, I.C.J. Reports 2007 (I), pp. 79-80, paras. 88-99). In the present
case, Croatia asserts first that the FRY was a party by succession to the
Genocide Convention from the beginning of its existence as a State, since
succession, unlike other modes of becoming bound by a treaty, is
retrospective to the commencement of the successor State; it also relies, in
support of its arguments in favour of jurisdiction, on a formal declaration
adopted on behalf of the FRY on 27 April 1992, and an official Note of the
same date transmitted with that declaration to the Secretary-General of the
United Nations.
98. The declaration of 27 April 1992 was made in the name of “the
representatives of the people of the Republic of Serbia and the Republic of
Montenegro” and according to Serbia it was adopted by “an ad hoc body
consisting of members of the Assembly of the SFRY, the National Assembly of
the Republic of Serbia and of the Assembly of the Republic of Montenegro”;
see also Ann. 13 to POS, heading; and signature clause. In that declaration
the representatives 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. [p447]
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 . . .”
(United Nations doc. A/46/915, Ann. II.)
99. Similarly, the Note of 27 April 1992 from the Permanent Mission of
Yugoslavia to the Secretary-General of the United Nations contained the
following:
“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.)
100. The FRY thus did not consider itself to be one of the successor States
of the SFRY emerging from the dissolution of that State, but the sole
continuing State, maintaining the personality of the former SFRY, with the
implication that the other States formed from the former Yugoslavia were
new States, though entitled to assert the rights of successor States. This
policy of the FRY was maintained until a change of Government in 2000, and
a subsequent application to the United Nations for admission as a new Member
(see paragraphs 50-51 above and 116 below). The 1992 declaration and Note
should not of course be viewed in isolation; their effect must be assessed
in the light of, in particular, the conduct of the FRY at the time of
making of the declaration and subsequently, and that aspect will be
examined below (paragraphs 114-117).
101. On the basis of the historical record, and of the declaration and Note
of 27 April 1992, Croatia maintains that Serbia was a party to the Genocide
Convention on 2 July 1999 on the same terms as the SFRY had been, namely
without reservation, and that accordingly Article IX confers jurisdiction
on the Court in the present case. In its Application, [p448] Croatia based
its arguments in this respect on the rules of international law concerning
succession of States. In its Written Statement on the Preliminary
Objections of Serbia, it invoked primarily the decision of the Court of 3
February 2003 in the case concerning Application for Revision of the
Judgment of 11 July 1996 in the Case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v.
Bosnia and Herzegovina), in which the status of the FRY vis-à-vis the United
Nations has been in issue. In the course of the oral proceedings, it
indicated that it was also relying in the alternative on the declaration and
Note of 27 April 1992. It will be convenient to examine first this
alternative argument based on the events of 1992, before proceeding, if
necessary, to the wider question of the application in this case of the
general law relating to succession of States, since if Croatia’s
contentions as to the effect of the declaration and Note are accepted, the
need does not arise for the Court further to address the arguments put to it
by the Parties concerning the rules of international law governing State
succession to treaties including the question of ipso jure succession to
some multilateral treaties.
102. Croatia submitted not only that Serbia was bound by the Genocide
Convention from the beginning of the conflict between Bosnia and Herzegovina
and the FRY, that is to say from a date prior to the 1992 declaration, but
that the Court has confirmed that this was so on six occasions in the course
of that period, namely in 1993 (twice), 1996, 1999, 2003 and 2007, i.e., in
the Orders and Judgments in the case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro) on the requests for the indication
of provisional measures (1993), on preliminary objections (1996) and on the
merits (2007), in the Judgment on the Application for Revision of the
Judgment of 11 July 1996 in that case (2003), and in the Orders on the
requests for the indication of provisional measures in the Legality of Use
of Force cases (1999). Croatia submitted that to hold that the FRY was not
bound by the Genocide Convention on 2 July 1999 “would reverse 15 years of
jurisprudence and call into question the basis for the Court’s decisions” in
the case concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide brought by Bosnia and Herzegovina.
103. Croatia argues that these decisions are relevant because the “solemn
commitment” given by the FRY in the 1992 declaration has been relied on by
the FRY itself in proceedings before this Court, and has been relied on by
the Court, so that Croatia also was entitled to rely on it, and has done so.
The significance of the attitude adopted by the FRY in previous proceedings
will be examined below (see paragraph 114).
104. As for the Court itself, it was observed in paragraphs 52 to 56 above,
these decisions do not have the status of res judicata in the present [p449]
proceedings. In general the Court does not choose to depart from previous
findings, particularly when similar issues were dealt with in the earlier
decisions, as in the current case, unless it finds very particular reasons to
do so. It is on that basis therefore that the Court will consider the
arguments of the Parties on the matters which, it is argued, were covered
by those previous decisions.
105. The question what effects might, in law, result from the fact that
Croatia might have thought it possible, in good faith, to rely on the
commitment given in those documents, can be reserved for the present. The
Court will first examine what was the nature and effect of the 1992
declaration and Note on the position of the FRY in relation to the Genocide
Convention.
106. Serbia argues that the declaration of 27 April 1992 described in
paragraph 98 above was not capable of constituting a notification of
succession to the Genocide Convention, for three reasons. First, any
notification of succession just like any other relevant treaty action must
ema-nate, in order to be valid, from a person being able to represent the
State concerned (cf. Article 7 of the Vienna Convention on the Law of
Treaties). The 1992 declaration was however, Serbia contends, adopted by an
ad hoc body consisting of members of the Assembly of the SFRY, the National
Assembly of the Republic of Serbia, and of the Assembly of the Republic of
Montenegro. Secondly, as confirmed by uniform depositary practice, specific
notifications are necessary in order to bring about succession, in other
words a notification of succession must specify precisely which treaty it is
directed to; and the 1992 declaration was entirely general in its terms
(“all the commitments that the SFR of Yugoslavia assumed internationally”).
Thirdly, any notification of succession, in order to be an effective one,
must be transmitted to the depositary; the 1992 declaration and Note were
however transmitted to the Secretary-General of the United Nations (the
depositary of the Genocide Convention) to be circulated as an official
document of the General Assembly, and were thus clearly not addressed to him
in his function as depositary.
107. In relation to the first point, the Court notes that the assembly that
adopted the 1992 declaration was the same that “promulgated the Constitution
of the Federal Republic of Yugoslavia”, as indicated in the Note of 27 April
1992 (see paragraph 99 above). In any event the Note transmitting the
declaration to the Secretary-General of the United Nations, was formally
communicated by the Chargé d’affaires a.i. of the Permanent Mission of
Yugoslavia to the United Nations, and was accepted by the Secretary-General,
and circulated as such as an official document of the General Assembly. While
at the time objection was taken to the claim of the FRY to be the
continuator of the SFRY, it was [p450] not then suggested that that claim
was not advanced by the appropriate representative body of the FRY, or
conveyed to the Secretary-General by an unauthorized representative.
Furthermore, as the Court will elaborate more fully below (see paragraphs
114-115), there can be no doubt, from the subsequent conduct of those
charged with the affairs of the FRY, that the declaration was regarded by
the State as made on its behalf, and the commitments contained in it were
endorsed and accepted by the FRY.
108. In respect of the second argument, the Court must first consider whether
the 1992 declaration and Note were “made in sufficiently specific terms in
relation to the particular question” of acceptance to be bound by
international treaty obligations (cf. Armed Activities on the Territory of
the Congo (New Application : 2002) (Democratic Republic of the Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, pp.
28-29, para. 52). The Court notes that the 1992 declaration and Note did not
merely state that the FRY would abide by certain commitments: it specified
that these were the commitments “that the SFR of Yugoslavia assumed
internationally” or “in international relations”. While the treaties
contemplated were not specified by name, the declaration referred to a class
of instruments which was perfectly ascertainable at the moment of making of
the declaration: the treaty “commitments” binding on the SFRY at the moment
of its dissolution. There is no doubt that the Genocide Convention was one
of these “commitments”. While the practice of making declarations of
succession to a treaty or treaties with an indication of the treaty or
treaties to which they are intended to relate is of undoubted practical
usefulness, the Court is unable to hold that international law regards as
wholly ineffective an instrument that identifies by general reference the
treaty to which it is addressed, rather than by designating it by its
particular name.
409. In the view of the Court, there is a distinction between the legal
nature of ratification of, or accession to a treaty, on the one hand, and on
the other, the process by which a State becomes bound by a treaty as a
successor State or remains bound as a continuing State. Accession or
ratification is a simple act of will on the part of the State manifesting an
intention to undertake new obligations and to acquire new rights in terms of
the treaty, effected in writing in the formal manner set out in the Treaty
(cf. Articles 15 and 16 of the Vienna Convention on the Law of Treaties). In
the case of succession or continuation on the other hand, the act of will of
the State relates to an already existing set of circumstances, and amounts
to a recognition by that State of certain legal consequences flowing from
those circumstances, so that any document issued by the State concerned,
being essentially confirmatory, may be subject to less rigid requirements of
form. Article 2 (g) of the 1978 Vienna Convention on Succession of States in
respect of Treaties reflects this idea, defining a [p451] “notification of
succession” as meaning “in relation to a multilateral treaty, any
notification, however framed or named, made by a successor State expressing
its consent to be considered as bound by the treaty”. Nor does international
law prescribe any specific form for a State to express a claim of continuity.
110. In respect of both the second and the third arguments advanced by
Serbia, the Court notes that the 1992 declaration was not expressed in the
terms of one of the recognized legal acts by which a State may become a
party to a multilateral convention. It observes, however, that in order to
constitute a valid and effective means by which the declaring State could
assume obligations under the Convention, the declaration need not strictly
comply with all formal requirements. For example, in the North Sea
Continental Shelf (Federal Republic of Germany/Denmark ; Federal Republic
of Germany/Netherlands) cases, the Court recognized the possibility that a
State that had not carried out the usual formalities (ratification,
accession) to become bound by the régime of an international convention
might nevertheless “somehow become bound in another way”, even though such a
process was “not lightly to be presumed” to have occurred. This did not in
the event prove to have happened in those cases (Judgment, I.C.J. Reports
1969, p. 25, paras. 27 and 28). In the present case, the Court has to
consider whether the 1992 declaration and Note, coupled with other
consistent conduct of Serbia, indicate such a unilateral acceptance of the
obligations of the Genocide Convention, by a process equivalent, in the
special circumstances of this case, to a succession to the SFRY as regards
to the Convention.
111. For the purposes of the present case, the Court points out first and
foremost that the FRY in 1992 clearly expressed an intention to be bound —
or, consistently with the view of the legal situation it then held, to
continue to be bound — by the obligations of the Genocide Convention. The
FRY was then claiming to be the continuator State of the SFRY, but it did
not repudiate its status as a party to the Convention even when it became
apparent that that claim would not prevail, and that the FRY was regarded by
other States, particularly by those that had emerged from the dissolution of
the former Yugoslavia, as simply one of the successor States of the SFRY. In
the particular context of the case, the Court is of the view that the 1992
declaration must be considered as having had the effects of a notification of
succession to treaties, notwithstanding that its political premise was
different. It is clear that the operative part of the 1992 declaration, the
acceptance of “all the commitments that the Socialist Federal Republic of
Yugoslavia assumed internationally”, had been drawn up in the light of its
assertion, made in the declaration and in the Note of the Permanent
Mission, of “the continuity of the international personality of Yugoslavia”,
and this was linked with the claim of the FRY to continue the membership of
the SFRY in the United [p452] Nations. There was however no indication that
the commitment undertaken would be conditional on acceptance of the claim
of continuity. That claim did not in fact prevail. Nonetheless, the conduct
of Serbia after the transmission of the declaration made it clear that it
regarded itself bound by the Genocide Convention.
112. Serbia has however drawn the attention of the Court to Article XI of
the Genocide Convention, which provides that:
“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 nonmember State which has
received an invitation as aforesaid.
Instruments of accession shall be deposited with the Secretary-General of
the United Nations.”
Serbia contends the following:
“Before it became a Member of the United Nations on 1 November 2000 as a
new State, the Respondent was not even qualified to be a party to the
Genocide Convention. Since it was not [prior to that date] a Member of the
United Nations, it could only have become a party upon an invitation
extended under Article XI. It is an undisputed fact that the FRY never
received such an invitation.”
113. The Court observes that Article XI, according to its terms, does not
exclude States not Members of the United Nations from being parties to the
Genocide Convention, as Serbia suggests; it provides simply that
non-signatory States may only accede to the Convention if they are United
Nations Member States or States who have received an invitation from the
General Assembly. The text does not make any reference to continuation of,
or succession to, the treaty rights and obligations of a predecessor State,
in the manner and on the conditions recognized in international law. In the
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 question was raised whether a “Notice of Succession” to the
Convention transmitted by Bosnia and Herzegovina was not to be treated as
an accession, to which Articles XI and XIII of the Convention would apply.
The Court held that Bosnia and Herzegovina had become a party to the
Convention by way of succession, and concluded from this that “the question
of the application [p453] of Articles XI and XIII of the Convention does
not arise” (Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p.
612, para. 24).
114. The position adopted by the FRY itself in relation to the Convention
has already been referred to, and is clearly conduct that must be taken into
account by the Court. As early as 1993, in the context of the first request
for the indication of provisional measures in the proceedings brought
against it by Bosnia and Herzegovina, the FRY, while questioning whether
the applicant State was a party to the Genocide Convention at the relevant
dates, did not challenge the claim that it was itself a party, and itself
presented a request for the indication of provisional measures, referring to
Article IX of the Convention. On this basis, the Court in its Order found
that “both Bosnia-Herzegovina and Yugoslavia are parties” to 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 8 April 1993, I.C.J. Reports 1993, p. 16,
para. 26), and cited the 1992 declaration and Note (ibid., p. 15, paras.
22-23). Moreover, in the same case, at the preliminary objections stage, the
FRY argued that the Genocide Convention had begun to apply to relations
between the two Parties on 14 December 1995, as recalled above (see
paragraph 82), having itself continued the rights and duties, under (inter
alia) that Convention, established by the SFRY. Furthermore, on 29 April
1999 the FRY filed in the Registry of the Court Applications instituting
proceedings against ten States Members of NATO, citing (inter alia) the
Genocide Convention as title of jurisdiction (see, for example, Legality of
Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections,
Judgment, I.C.J. Reports 2004 (I), pp. 283-284, para. 1).
115. This was still the situation when on 2 July 1999 Croatia filed the
Application instituting the present proceedings. During the period between
the making of the 1992 declaration and that date, neither the FRY nor any
other State for which the issue might have had significance questioned that
the FRY was a party to the Genocide Convention, without reservations; and
no other event occurring during that period had any impact on the legal
situation arising from the 1992 declaration. On 1 November 2000, the FRY was
admitted as a new Member of the United Nations, as it had requested by a
letter addressed to the Secretary-General by the President of the FRY dated
27 October 2000, “in light of the implementation of Security Council
resolution 777 (1992)” (United Nations doc. A/55/528-S/2000/1043). As the
Court observed in its Judgments in the cases concerning the Legality of Use
of Force, “[t]his new development effectively put an end to the sui generis
position of the Federal Republic of Yugoslavia within the United Nations . .
.” (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary
Objections, Judgment, I.C.J. Reports 2004 (I), p. 310, para. 78).
Nevertheless, the FRY did not at that time withdraw, or purport to withdraw,
the declaration [p454] and Note of 1992, which had been drawn up in the
light of the contention that the FRY was continuing the legal personality of
the SFRY. It did not, for example, suggest that the failure of that
contention to gain acceptance had entailed the nullity of the declaration,
or cessation of the commitment to the international obligations contemplated
by it.
116. It was not until March 2001 that the FRY took any further step
inconsistent with the status which it had since 1992 been claiming to
possess, namely that of a State party to the Genocide Convention. On 12
March 2001 it deposited with the Secretary-General a notification of
accession to the Genocide Convention, which, after referring to the 1992
declaration and to the subsequent admission of the FRY to the United Nations
as a new Member, contained the following:
“NOW it has been established that the Federal Republic of Yugoslavia has
not succeeded on April 27, 1992, or on any later date, to treaty membership,
rights and obligations of the Socialist Federal Republic of Yugoslavia in
the Convention on the Prevention and Punishment of the Crime of Genocide on
the assumption of continued membership in the United Nations and continued
state, international legal and political personality of the Socialist
Federal Republic of Yugoslavia . . .”
The notification of accession contained the following reservation:
“‘The Federal Republic of Yugoslavia does not consider itself bound by
Article IX of the Convention . . . and, therefore, before any dispute to
which the Federal Republic of Yugoslavia is a party may be validly submitted
to the jurisdiction of the International Court of Justice under this
Article, the specific and explicit consent of the FRY is required in each
case.’”
However, the Court notes also that on that same date, the FRY deposited
with the Secretary-General of the United Nations declarations of succession
to a large number of other multilateral conventions of which the
Secretary-General is depositary. This practice of the FRY was fully
consistent with that of the other former States emerging from the
dissolution of the SFRY, which also saw themselves as successors to that
State, and thus had, during the period from 1991 on, notified their
succession to those conventions. There was indeed (other than the accession
of the FRY to the Genocide Convention) only one exception to that very
extensive and consistent body of practice.
117. In sum, in the present case the Court, taking into account both the
text of the declaration and Note of 27 April 1992, and the consistent
conduct of the FRY at the time of its making and throughout the years
1992-2001, considers that it should attribute to those documents precisely
the effect that they were, in the view of the Court, intended to have on the
face of their terms: namely, that from that date onwards the FRY [p455]
would be bound by the obligations of a party in respect of all the
multilateral conventions to which the SFRY had been a party at the time of
its dissolution, subject of course to any reservations lawfully made by the
SFRY limiting its obligations. It is common ground that the Genocide
Convention was one of these conventions, and that the SFRY had made no
reservation to it; thus the FRY in 1992 accepted the obligations of that
Convention, including Article IX providing for the jurisdiction of the Court
and that jurisdictional commitment was binding on the Respondent at the
date the present proceedings were instituted. In the events that have
occurred, this signifies that the 1992 declaration and Note had the effect of
a notification of succession by the FRY to the SFRY in relation to the
Genocide Convention. The Court concludes that, subject to the more specific
objections of Serbia to be examined below, it had, on the date on which the
present proceedings were instituted, jurisdiction to entertain the case on
the basis of Article IX of the Genocide Convention. That situation continued
at least until 1 November 2000, the date on which Serbia and Montenegro
became a Member of the United Nations and thus a party to the Statute of the
Court.
Accordingly, there is no need to consider the contentions of Croatia based
on more general issues relating to the rules of international law concerning
succession of States to treaties, referred to in paragraph 101 above.
(3) Conclusions
118. The Court recalls that it held earlier in this Judgment (see paragraph
91) that the Respondent acquired the status of party to the Statute of the
Court on 1 November 2000. The Court further held that if it could be
established that the Respondent was also a party to the Genocide Convention,
including Article IX, on the date of the institution of the proceedings and
until at least 1 November 2000, and if consequently the Applicant would have
been at liberty, had it so desired, to submit a fresh application identical
in substance to the present Application, the conditions for the
jurisdiction of the Court would be satisfied. The Court has now found that
the Respondent was bound by the Genocide Convention, including Article IX
thereof, at the date of the institution of the proceedings and remained so
bound at least until 1 November 2000.
119. Having established that the conditions for the Court’s jurisdiction
are met and without prejudice to its findings on the other preliminary
objections submitted by Serbia, the Court concludes that the first
preliminary objection, “that the Court lacks jurisdiction”, must be
rejected. [p456]
VI. PRELIMINARY OBJECTION TO THE JURISDICTION OF THE COURT AND TO
ADMISSIBILITY, RATIONE TEMPORIS
120. The Court therefore now turns to the second preliminary objection as
stated in Serbia’s final submission 2 (a), namely the objection that “claims
based on acts and omissions which took place prior to 27 April 1992”, that
is to say prior to the formal establishment of the “Federal Republic of
Yugoslavia (Serbia and Montenegro)”, the name by which the present Serbia
was formerly known, “are beyond the jurisdiction of this Court and
inadmissible”. The preliminary objection is thus presented as, at one and
the same time, an objection to jurisdiction and one going to the
admissibility of the claims. A distinction between these two kinds of
objections is well recognized in the practice of the Court. In either case,
the effect of a preliminary objection to a particular claim is that, if
upheld, it brings the proceedings in respect of that claim to an end; so
that the Court will not go on to consider the merits of the claim. If the
objection is a jurisdictional objection, then since the jurisdiction of the
Court derives from the consent of the parties, this will most usually be
because it has been shown that no such consent has been given by the
objecting State to the settlement by the Court of the particular dispute. A
preliminary objection to admissibility covers a more disparate range of
possibilities. In the case concerning Oil Platforms (Islamic Republic of
Iran v. United States of America) the Court noted that:
“Objections to admissibility normally take the form of an assertion that,
even if the Court has jurisdiction and the facts stated by the applicant
State are assumed to be correct, nonetheless there are reasons why the Court
should not proceed to an examination of the merits.” (Judgment, I.C.J.
Reports 2003, p. 177, para. 29.)
Essentially such an objection consists in the contention that there exists a
legal reason, even when there is jurisdiction, why the Court should decline
to hear the case, or more usually, a specific claim therein. Such a reason is
often of such a nature that the matter should be resolved in limine litis,
for example where without examination of the merits it may be seen that
there has been a failure to comply with the rules as to nationality of
claims; failure to exhaust local remedies; the agreement of the parties to
use another method of pacific settlement; or mootness of the claim. If the
Court finds that an objection “does not possess, in the circumstances of the
case, an exclusively preliminary character” (Article 79, paragraph 7, of the
Rules of Court as adopted on 14 April 1978), it will be dealt with at the
merits stage. Challenges either to jurisdiction or to admissibility are
sometimes in fact presented along with arguments on the merits, and argued
and determined at that stage (cf. East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports 1995, p. 92, para. 4; Avena and Other Mexican
[p457] Nationals (Mexico v. United States of America), Judgment, I.C.J.
Reports 2004 (I), pp. 28-29, para. 24).
121. As set out above, Serbia’s preliminary objection, as stated in its final
submission 2 (a), is presented as relating both to the jurisdiction of the
Court and to the admissibility of the claim. The title of jurisdiction
relied on by Croatia is Article IX of the Genocide Convention, and the Court
has established above that Croatia and Serbia were both parties to that
Convention on the date on which proceedings were instituted (2 July 1999).
Serbia’s contention is however that the Court has no jurisdiction under
Article IX, or that jurisdiction cannot be exercised, so far as the claim of
Croatia concerns “acts and omissions that took place prior to 27 April
1992”, i.e., that the Court’s jurisdiction is limited ratione temporis.
Serbia advanced two reasons for this: first, because the earliest possible
point in time at which the Convention could be found to have entered into
force between the FRY and Croatia was 27 April 1992; and secondly, because
“the Genocide Convention including the jurisdictional clause contained in
its Article IX cannot be applied with regard to acts that occurred before
Serbia came into existence as a State”, and could thus not have become
binding upon it. Serbia therefore contended that acts or omissions which
took place before the FRY came into existence cannot possibly be attributed
to the FRY.
122. In that respect, Croatia has drawn the attention of the Court to the
fact that a similar question of jurisdiction ratione temporis under the
Genocide Convention in respect of the events in the former Yugoslavia was
dealt with by the Court in the case concerning the Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia), in response to two of the preliminary
objections of the FRY. In that Judgment the Court found that
“Yugoslavia, basing its contention on the principle of the non-retroactivity
of legal acts, has . . . asserted . . . that, even though the Court might
have jurisdiction on the basis of the [Genocide] Convention, it could only
deal with events subsequent to the different dates on which the Convention
might have become applicable as between the Parties. In this regard, the
Court will confine itself to the observation that the Genocide Convention —
and in particular Article IX — does not contain any clause the object or
effect of which is to limit in such manner the scope of its jurisdiction
ratione temporis, and nor did the Parties themselves make any reservation to
that end, either to the Convention or on [a later possible opportunity]. The
Court thus finds that it has jurisdiction in this case to give effect to the
Genocide Convention with regard to the relevant facts which have occurred
since the beginning of the conflict which took place in Bosnia and
Herzegovina.” (I.C.J. Report 1996 (II), p. 617, para. 34; emphasis added.)
[p458]
Croatia argues that the same reasoning should also be applicable in the
present case, and therefore invites the Court to dismiss the Serbian
objection.
123. The Court observes however that the temporal questions to be resolved
in the present case are not the same as those dealt with by the Court in
1996. At that time, the Court had merely to determine, first whether, at the
date that the proceedings in the case were instituted, the Genocide
Convention had become applicable between the FRY and Bosnia and
Herzegovina, and secondly whether in the exercise of its jurisdiction it
was limited to dealing only with events subsequent to the date or dates on
which the Convention might thus have become applicable. That date was, or
those dates were, in any event subsequent to the moment at which the FRY had
come into existence and had thus become capable of being itself a party to
the Convention. Therefore the finding of the Court that it had jurisdiction
“with regard to the relevant facts which have occurred since the beginning
of the conflict” (that is to say not merely facts subsequent to the date when
the Convention became applicable between the parties) was not addressed to
the question whether these included facts occurring prior to the coming into
existence of the FRY. In the present case, the Court therefore cannot draw
from that judgment (which, as already noted, does not have the authority of
res judicata in the present proceedings) any definitive conclusion as to the
temporal scope of the jurisdiction it has under the Convention. At the same
time, the Court notes, as it did in 1996, that there is no express provision
in the Genocide Convention limiting its jurisdiction ratione temporis.
124. Another circumstance distinguishing the present case from the case
between Bosnia and Herzegovina and the FRY is that in the present case
Serbia’s objection is presented as relating both to the Court’s
jurisdiction and to matters of admissibility of the claims of Croatia. In
par-ticular, the Court notes that, in the present case, the Parties advanced
arguments relating to the consequences to be drawn from the fact that the
FRY only became a State and a party to the Genocide Convention on 27 April
1992, not only with regard to its jurisdiction but also with regard to the
attribution to Serbia of acts that occurred before that date. Serbia
contended that, not having been a State before 27 April 1992, acts that
occurred before that date cannot be attributed to it and that, not having
been a party to the Convention, it could not have breached any obligation
under it. In the Court’s view the question of the temporal scope of its
jurisdiction is closely bound up with these questions of attribution,
presented by Serbia as a matter of admissibility rather than of
jurisdiction, and thus has to be examined in the light of these issues. The
Court therefore now turns to the aspect of the objection related to issues
of attribution of acts that occurred prior to 27 April 1992.
125. In its Memorial, Croatia referred to the temporal element and contended
that “the fact that the FRY only formally proclaimed itself on 27 April 1992
does not mean that acts occurring prior to that date cannot [p459] be
attributed to it”. It invoked what it referred to as a well-established
principle that “a state in statu nascendi is responsible for conduct carried
out by its officials and organs or otherwise under its direction and
control”. Croatia indicated that it relies on the rule stated in Article 10,
paragraph 2, of the International Law Commission’s Articles on the State
Responsibility (Annex to General Assembly resolution 56/83, 12 December
2001, hereinafter referred to as “the ILC Articles on State
Responsibility”), that “the conduct of a movement insurrectional or other
which succeeds in establishing a new State shall be considered an act of the
new State under international law”.
126. In its preliminary objections Serbia contended that “[a]cts or
omissions which took place before the FRY came into existence cannot
possibly be attributed to the FRY”; it denies that Croatia has been able to
demonstrate that the FRY was a State in statu nascendi, and argues that that
concept is “evidently not appropriate for this case”. At the hearings it
argued that the requirements of Article 10, paragraph 2, of the ILC Articles
on State Responsibility are not fulfilled in respect of the claims made by
Croatia against Serbia in the present case. It contended that Croatia has
been unable to specify an identifiable “insurrectional or other movement” in
the territory of the SFRY as one that established the FRY which would fall
within the definition of that Article.
127. In so far as Article 10, paragraph 2, of the ILC Articles on State
Responsibility reflects customary international law on the subject, it would
necessarily require the Court, in order to determine if that rule is
applicable to the present case and for purposes of a possible application,
to enter into an examination of factual issues concerning the events
leading up to the dissolution of the SFRY and the establishment of the FRY.
The Court notes further that for it to determine whether, prior to 27 April
1992, the FRY was a State in statu nascendi for purposes of the rule invoked
would similarly involve enquiry into disputed matters of fact. It would thus
be impossible to determine the questions raised by the objection without to
some degree determining issues properly pertaining to the merits.
128. The provision introduced into the Rules of Court in 1972, and
constituting Article 79, paragraph 7, of the Rules adopted on 14 April 1978,
was drafted, as the Court indicated in the case concerning Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), to make it clear that when preliminary objections are
exclusively preliminary, they have to be decided upon immediately, “but if
they are not, especially when the character of the objections is not
exclusively preliminary because they contain both preliminary aspects and
other aspects relating to the merits, they will have to be dealt with at the
stage of the merits” (Merits, Judgment, I.C.J. Reports 1986, p. 31, para.
41; see also Questions of Interpretation and [p460] Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United Kingdom), Preliminary Objections, I.C.J. Reports
1998, pp. 27-29.)
129. In the view of the Court, the questions of jurisdiction and
admissibility raised by Serbia’s preliminary objection ratione temporis
constitute two inseparable issues in the present case. The first issue is
that of the Court’s jurisdiction to determine whether breaches of the
Genocide Con-vention were committed in the light of the facts that occurred
prior to the date on which the FRY came into existence as a separate State,
capable of being a party in its own right to the Convention; this may be
regarded as a question of the applicability of the obligations under the
Genocide Convention to the FRY before 27 April 1992. The second issue, that
of admissibility of the claim in relation to those facts, and involving
questions of attribution, concerns the consequences to be drawn with regard
to the responsibility of the FRY for those same facts under the general
rules of State responsibility. In order to be in a position to make any
findings on each of these issues, the Court will need to have more elements
before it.
In view of the above, the Court concludes that Serbia’s preliminary
objection ratione temporis does not possess, in the circumstances of the
case, an exclusively preliminary character.
VII. PRELIMINARY OBJECTION CONCERNING THE SUBMISSION OF CERTAIN PERSONS TO
TRIAL ; THE PROVISION OF INFORMATION ON MISSING CROATIAN CITIZENS ; AND THE
RETURN OF CULTURAL PROPERTY
131. Serbia’s preliminary objection as stated in its final submission 2 (b),
(hereinafter referred to as the “third objection”) is that
“claims referring to submission to trial of certain persons within the
jurisdiction of Serbia, providing information regarding the whereabouts of
missing Croatian citizens and return of cultural property are beyond the
jurisdiction of this Court and inadmissible”.
In the objection as filed on 11 September 2002, it had been asserted that
some of the Applicant’s specific submissions are per se inadmissible and
moot. Serbia has identified the claims in question as those made as
submissions 2 (a),2 (b) and 2 (c) advanced in the Memorial of Croatia.
Despite this overall classification of the objection as being both to the
jurisdiction of the Court and to the admissibility of certain claims, it
appears that not all the contentions of Serbia in this respect are related
to both aspects of the objection.
132. The Court notes that Croatia has asked the Court simply to reject
[p461] the third objection, though in relation to one matter it suggests
that the point should be examined at the merits stage (see paragraphs 138
and 142 below). The Court recalls that it is required by Article 79,
paragraph 7, of the 1978 Rules of Court either to “uphold the objection,
reject it, or declare that the objection does not possess, in the
circumstances of the case, an exclusively preliminary character”; and that
this last course may be indicated, inter alia, when an objection contains
“both preliminary aspects and other aspects relating to the merits”
(Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 31,
para. 41).
(i) Submission of persons to trial
133. Submission 2 (a) in the Croatian Memorial requests the Court to find
that Serbia is under an obligation:
“to take immediate and effective steps to submit to trial before the
appropriate judicial authority, those citizens or other persons within its
jurisdiction who are suspected on probable grounds of having committed acts
of genocide as referred to in paragraph (1) (a),or any of the other acts
referred to in paragraph (1) (b) [of the Submissions of Croatia], in
particular Slobodan Miloševic´, the former President of the Federal Republic
of Yugoslavia, and to ensure that those persons, if convicted, are duly
punished for their crimes”.
Croatia’s claim is based on Articles I and VI of the Genocide Convention.
By Article I, the Contracting Parties “undertake to prevent and punish”
genocide; and Article VI provides that
“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.”
Croatia thus contends that “the failure of the FRY . . . to submit all
relevant persons for trial by a competent tribunal gives rise to its
international responsibility”.
134. As regards the factual basis of this claim, the Court notes that
Croatia has adjusted its submissions to take account of the fact that former
President Slobodan Miloševic´ had, since the presentation of the Memorial,
been transferred to the International Criminal Tribunal for the former
Yugoslavia (ICTY), and has since died. Furthermore, Croatia [p462] accepts
that this submission is now moot in respect of a number of other persons
whom Serbia has transferred to the ICTY, but insists that there continues to
be a dispute between Croatia and Serbia with respect to persons who have
not been submitted to trial either in Croatia or before the ICTY in respect
of acts or omissions which are the subject of these proceedings. As regards
the ICTY, Serbia maintains, as a first basis of its objection, that as a
matter of fact there is only one person still at large who has been accused
by the ICTY of crimes allegedly committed in Croatia, and these accusations
relate not to genocide but to war crimes and crimes against humanity.
Croatia observes that a number of persons have been charged with genocide by
the Croatian authorities, and that a number of perpetrators so charged are
out of reach of the Croatian authorities, “presumably in Serbia”.
135. The second and third bases of Serbia’s objection to Croatian
submission 2 (a) are as follows. Serbia observes that Croatia is asserting
that Serbia is under an obligation under the Genocide Convention to punish
its nationals for alleged acts of genocide committed in Croatia, that is to
say outside Serbia’s own territory; it draws attention however to the finding
made by the Court in 2007 (since the proceedings were instituted in this
case) in its Judgment in the case concerning Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), that the Convention “only obliges the
Contracting Parties to institute and exercise territorial criminal
jurisdiction” (I.C.J. Reports 2007 (I), pp. 226227, para. 442). Serbia then
objects further that Croatia is apparently claiming that Serbia has violated
the Genocide Convention by failing in a duty to hand over persons who have
allegedly committed acts of genocide, not to the ICTY, but to Croatia
itself; and it argues that no such obligation is to be found in the
Convention; in this respect, it again cites the Judgment in the case
concerning Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)
(ibid., p. 227, para. 443).
136. In the view of the Court, these issues are clearly matters of
interpretation or application of the Genocide Convention, the role
conferred on the Court by Article IX, and thus, contrary to the contention
of Serbia in its objection, within the jurisdiction of the Court (cf. Avena
and Other Mexican Nationals (Mexico v. United States of America), Judgment,
I.C.J. Reports 2004 (I), pp. 31-32, para. 30).
The Court understands the first basis of Serbia’s submission to be
essentially a matter of admissibility: it amounts to an assertion that, on
the facts of the case as they now stand, the claim is moot, in the sense
that Croatia has not shown that there are at the present time any persons
charged with genocide, either by the ICTY or by the courts of Croatia, who
are on the territory or within the control of Serbia. Whether that is
correct will be a matter for the Court to determine when it examines the
claims of Croatia on the merits. The [p463] Court therefore rejects the
objection and sees no remaining issue of admissibility.
**
(ii) Provision of information on missing Croatian citizens
137. By submission 2 (b) advanced by Croatia, which is challenged by Serbia
by its third preliminary objection, the Applicant asks the Court to find that
Serbia is under an obligation
“to provide forthwith to the Applicant all information within its possession
or control as to the whereabouts of Croatian citizens who are missing as a
result of the genocidal acts for which [Serbia] is responsible, and
generally to co-operate with the authorities of the Republic of Croatia to
jointly ascertain the whereabouts of the said missing persons or their
remains”.
Serbia has asserted in support of its objection to this submission that the
relevant acts committed in Croatia do not amount to genocide, so that the
obligations under the Genocide Convention do not apply. It has also drawn
attention to co-operation between the two States concerning the location and
identification of missing persons, both direct and in the context of the
work of the International Commission for Missing Persons, and to the
existence of bilateral treaty-instruments concluded by the two States
imposing obligations to exchange data about missing persons. Croatia
contends that these agreements do not preclude the exercise of the Court’s
jurisdiction under Article IX of the Genocide Convention, and are in
practice ineffective.
138. It does not appear that this submission of Croatia is regarded by
Serbia as “beyond the jurisdiction of this Court” (see paragraph 131 above);
it has been presented rather as a matter of mootness of the claim, a
question of admissibility. It is not disputed that the Genocide Convention
does not specifically prescribe a duty to provide information of the kind
referred to, but Croatia has contended that its submission “falls squarely
within [the terms of] the Genocide Convention”, and presented the matter in
terms of an appropriate remedy for a continuing breach of the Convention by
Serbia.
139. However, the question what remedies might appropriately be ordered by
the Court in the exercise of its jurisdiction under Article IX of the
Convention is one which is necessarily dependent upon the findings that the
Court may in due course make of breaches of the Convention by the
Respondent. As a matter which is essentially one of the merits, and one
dependent upon the principal question of responsibility raised by the claim,
this is not a matter that may be the proper subject of a preliminary
objection. This conclusion is reinforced by the consideration that, in this
[p464] particular case, in order to decide whether an order in the terms of
Croatian submission 2 (b) would be an appropriate remedy, the Court would
have to enquire into disputed matters of fact. This it would have to do in
order to establish whether or not, and in what circumstances, the
co-operation as to the provision of information between the two States
mentioned by Serbia has taken place, and whether this remedy might be held
as resulting from the establishment of responsibility for breaches of the
Convention. These issues are for the merits, and the Court concludes that
the preliminary objection submitted by Serbia, so far as it relates to
Croatian submission 2 (b), must be rejected.
**
(iii) Return of cultural property
140. By submission 2 (c) advanced by Croatia, which is also challenged by
Serbia by its third preliminary objection, the Applicant asks the Court to
find that Serbia is under an obligation “forthwith to return to the Applicant
any items of cultural property within its jurisdiction or control which were
seized in the course of the genocidal acts for which it is responsible”.
Serbia has argued that in this respect no dispute exists between the
Parties, “even more so since cultural property has to a large extent already
been returned to Croatia by Serbia”, so that the claim has become “moot and
thus inadmissible”. It is less clear whether Serbia also disputes the
jurisdiction of the Court to entertain that claim: it does argue that the
acts complained of “must constitute acts of genocide in order for the Court
to be able to exercise jurisdiction under Article IX of the Convention”, but
not that the Court would have no jurisdiction to consider whether those acts
do or do not constitute breaches of the Convention.
141. As already noted above, since proceedings were instituted in this case,
the Court has given judgment in the case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro) ( I.C.J. Reports 2007 (I),
p. 43); and Serbia has relied on that decision also in the context of the
issue now under examination. In that case the Court found that there had
been a “deliberate destruction of the historical, cultural and religious
heritage of the . . . group [protected by the Convention]” (ibid., p. 185,
para. 344). However, the Court found that “[a]lthough 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” (ibid.).Ashas already been
indicated (see paragraphs 52-56 above), this decision does not have the
force of res judicata in the present proceedings, but the [p465] Court sees
no reason to depart from its earlier finding on the general question of
interpretation of the Convention in this respect. The Court will have to
decide how these findings of law are to be applied, and what may be their
effect in the present case.
142. Croatia however indicates that it perceives the alleged deliberate
destruction and looting of cultural property in this case as part of a
broader plan or pattern of activities aimed at the extinction of an ethnic
group, and therefore within the purview of the Genocide Convention, and that
accordingly an order for return of property taken in such circumstances is
not a priori inadmissible; it suggests that whether or not such an order
would be an appropriate remedy in this case is a matter to be determined at
the merits stage.
143. However, as the Court has noted above, the question what remedies
might appropriately be ordered by the Court is one which is necessarily
dependent upon the findings that the Court may in due course make of breaches
of the Genocide Convention by the Respondent; it is not a matter that may be
the proper subject of a preliminary objection. As in the case of submission
2 (b), this conclusion is reinforced by the consideration that in order to
decide whether an order in the terms of Croatian submission 2 (c) would be
an appropriate remedy, the Court would have to enquire into disputed matters
of fact, to establish whether or not a breach of an obligation deriving from
the Genocide Convention had been established, and if so in what respects.
The Court concludes that the preliminary objection submitted by Serbia so
far as it relates to Croatian submission 2 (c) must be rejected.
**
(iv) Conclusion
144. Serbia’s third preliminary objection, as stated in its final submission
2 (b), addressed to Croatia’s submissions 2 (a),2 (b) and 2 (c), must
therefore be rejected in its entirety.
145. Having established its jurisdiction, the Court will consider the
preliminary objection that it has found to be not of an exclusively
preliminary character when it reaches the merits of the case. In accordance
with Article 79, paragraph 7, of the Rules of Court as adopted on 14 April
1978, time-limits for the further proceedings will be fixed subsequently by
the Court. [p466]
VIII. OPERATIVE CLAUSE
146. For these reasons,
THE COURT,
(1) By ten votes to seven,
Rejects the first preliminary objection submitted by the Republic of Serbia
in so far as it relates to its capacity to participate in the proceedings
instituted by the Application of the Republic of Croatia;
IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges
Buergenthal, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge
ad hoc Vukas;
AGAINST: Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Owada, Skotnikov;
Judge ad hoc Krec´a;
(2) By twelve votes to five,
Rejects the first preliminary objection submitted by the Republic of Serbia
in so far as it relates to the jurisdiction ratione materiae of the Court
under Article IX of the Convention on the Prevention and Punishment of the
Crime of Genocide to entertain the Application of the Republic of Croatia;
IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges
Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor,
Bennouna, Skotnikov; Judge ad hoc Vukas;
AGAINST: Judges Ranjeva, Shi, Koroma, Parra-Aranguren; Judge ad hoc Krec´a;
(3) By ten votes to seven,
Finds that subject to paragraph 4 of the present operative clause the Court
has jurisdiction to entertain the Application of the Republic of Croatia;
IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges
Buergenthal, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge
ad hoc Vukas;
AGAINST: Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Owada, Skotnikov;
Judge ad hoc Krec´a;
(4) By eleven votes to six,
Finds that the second preliminary objection submitted by the Republic of
Serbia does not, in the circumstances of the case, possess an exclusively
preliminary character;
IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva,
Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge
ad hoc Vukas;
AGAINST: Judges Shi, Koroma, Parra-Aranguren, Tomka, Skotnikov; Judge ad hoc
Krec´a; [p467]
(5) By twelve votes to five,
Rejects the third preliminary objection submitted by the Republic of Serbia.
IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva,
Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna;
Judge ad hoc Vukas;
AGAINST: Judges Shi, Koroma, Parra-Aranguren, Skotnikov; Judge ad hoc
Krec´a.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this eighteenth day of November, two thousand and
eight, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of the Republic of
Croatia and the Government of the Republic of Serbia, respectively.
(Signed) Rosalyn HIGGINS, President.
(Signed) Philippe COUVREUR, Registrar.
Vice-President AL-KHASAWNEH appends a separate opinion to the Judgment of
the Court; Judges RANJEVA,SHI,KOROMA and PARRAARANGUREN append a joint
declaration to the Judgment of the Court; Judges RANJEVA and OWADA append
dissenting opinions to the Judgment of the Court; Judges TOMKA and ABRAHAM
append separate opinions to the Judgment of the Court ; Judge BENNOUNA
appends a declaration to the Judgment of the Court; Judge SKOTNIKOV appends
a dissenting opinion to the Judgment of the Court; Judge ad hoc VUKAS
appends a separate opinion to the Judgment of the Court; Judge ad hoc
KRECuA appends a dissenting opinion to the Judgment of the Court.
(Initialled) R.H. (Initialled) Ph.C.
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