COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A L’APPLICATION
DE LA CONVENTION POUR LA PREVENTION
ET LA REPRESSION DU CRIME DE GENOCIDE

(BOSNIE-HERZEGOVINE c. YOUGOSLAVIE)

EXCEPTIONS PRELIMINAIRES

ARRET DU 11 JUILLET 1996

1996

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING APPLICATION OF
THE CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE

(BOSNIA AND HERZEGOVINA vy. YUGOSLAVIA)

PRELIMINARY OBJECTIONS

JUDGMENT OF 11 JULY 1996
Mode officiel de citation:

Application de la convention pour la prévention et la répression
du crime de génocide, exceptions préliminaires, arrét,
C.LJ. Recueil 1996, p. 595

Official citation:

Application of the Convention on the Prevention and Punishment
of the Crime of Genocide, Preliminary Objections, Judgment,
I. C.J. Reports 1996, p. 595

N° de vente:
ISSN 0074-4441 Sales number 680
ISBN 92-1-070744-3

595

INTERNATIONAL COURT OF JUSTICE
YEAR 1996

11 July 1996

CASE CONCERNING APPLICATION OF
THE CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE

(BOSNIA AND HERZEGOVINA y. YUGOSLAVIA)

PRELIMINARY OBJECTIONS

Jurisdiction of the Court — Withdrawal of the fourth preliminary objection
of Yugoslavia — Article IX of the Genocide Convention:

(a) Jurisdiction ratione personae — Intention expressed by Yugoslavia to
remain bound by the treaties to which the former Yugoslavia was party — It has
not been contested that Yugoslavia was party to the Genocide Convention —
Notice of Succession addressed by Bosnia and Herzegovina to the Secretary-
General of the United Nations — Accession to independence of Bosnia and
Herzegovina and admission to the United Nations — Article XI of the Genocide
Convention opens it to “any Member of the United Nations” — Bosnia and
Herzegovina could become a party to the Genocide Convention through the
mechanism of State succession — Lack of mutual recognition of the Parties at
the time of filing of the Application — Article X of the Dayton-Paris Agreement
— Principle whereby the Court should not penalize a defect in a procedural act
which the applicant could easily remedy.

(b) Jurisdiction ratione materiae — Existence of a legal dispute — Dispute
falling within the provisions of Article IX of the Genocide Convention — Appli-
cability of the Convention without reference to the circumstances linked to the
domestic or international nature of the conflict — The question whether Yugo-
slavia took part in the conflict at issue belongs to the merits — The obligation
each State has to prevent and punish the crime of genocide is not territorially
limited by the Convention — Article IX does not exclude any form of State
responsibility under the Convention.

(c) Scope ratione temporis of the jurisdiction of the Court.

Additional bases of jurisdiction invoked by Bosnia and Herzegovina — Letter
of 8 June 1992 from the Presidents of Montenegro and Serbia — Treaty

4

1996
11 July
General List
No. 91
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 596

between the Allied and Associated Powers and the Kingdom of the Serbs,
Croats and Slovenes of 10 September 1919 — Acquiescence in the jurisdiction
of the Court on the basis of Article IX of the Genocide Convention — Forum
prorogatum.

Admissibility of the Application — Events that might have taken place in a
context of civil war — Head of State presumed to be able to act on behalf of the
State in its international relations and recognized as such.

Absence of abuse of the rights of Yugoslavia under Article 36, paragraph 6, of
the Statute and Article 79 of the Rules of Court.

JUDGMENT

Present: President Brpsaoui; Vice-President SCHWEBEL; Judges Ona,
GUILLAUME, SHAHABUDDEEN, WEERAMANTRY, RANJEVA, HERCZEGH,
Sut, KOROMA, VERESHCHETIN, FERRARI BRAVO, PARRA-ARANGUREN;
Judges ad hoc LAUTERPACHT, KRECA; Registrar VALENCIA-OSPINA.

In the case concerning application of the Convention on the Prevention and
Punishment of the Crime of Genocide,

between

the Republic of Bosnia and Herzegovina,
represented by

H.E. Mr. Muhamed Sacirbey, Ambassador and Permanent Representative
of the Republic of Bosnia and Herzegovina to the United Nations,

as Agent;
Mr. Phon van den Biesen, Attorney in Amsterdam,
as Deputy-Agent, Counsel and Advocate;

Mr. Thomas M. Franck, Professor at the School of Law and Director,
Center for International Studies, New York University,

Mr. Alain Pellet, Professor, University of Paris X-Nanterre and Institute of
Political Studies, Paris,

Ms Brigitte Stern, Professor, University of Paris I (Panthéon-Sorbonne),

as Counsel and Advocates;

Mr. Khawar M. Qureshi, Member of the English Bar, Lecturer in Law,
King’s College, London,

Ms Vasvija Vidovié, Minister-Counsellor, Embassy of Bosnia and Herze-
govina in the Netherlands, Representative of the Republic of Bosnia and
Herzegovina at the International Criminal Tribunal for the former Yugo-
slavia,

Mr. Marc Weller, Assistant Director of Studies, Centre for International
Studies, University of Cambridge, Member of the Faculty of Law of the
University of Cambridge,

as Counsel;
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 597

Mr. Pierre Bodeau, Research Assistant/Tutor, University of Paris X-Nanterre,
Mr. Michiel Pestman, Attorney in Amsterdam,
Mr. Thierry Vaissière, Research Student, Cedin-Paris I (Panthéon-Sorbonne),

as Counsellors;

Mr. Hervé Ascencio, Research Assistant/Tutor, University of Paris X-
Nanterre,

Ms Marieke Drenth,

Ms Froana Hoff,

Mr. Michael Kellogg,

Mr. Harold Kocken,

Ms Nathalie Lintvelt,

Mr. Sam Muller,

Mr. Joop Nijssen,

Mr. Eelco Szabo,

as Assistants,
and

the Federal Republic of Yugoslavia,
represented by

Mr. Rodoljub Etinski, Chief Legal Adviser, Ministry of Foreign Affairs of
the Federal Republic of Yugoslavia, Professor of International Law, Novi
Sad University,

Mr. Djordje Lopitic, Chargé d’ Affaires, Embassy of the Federal Republic of
Yugoslavia in the Netherlands,

as Agents;

Mr. Ian Brownlie, C.B.E., F.B.A., Q.C., Chichele Professor of Public Inter-
national Law, University of Oxford,

Mr. Miodrag Mitié, Assistant Federal Minister for Foreign Affairs of the
Federal Republic of Yugoslavia (Ret.),

Mr. Eric Suy, Professor, Catholic University of Louvain (K.U. Leuven), for-
merly Under-Secretary-General and Legal Counsel of the United Nations,

as Counsel and Advocates;
Mr. Stevan Djordievié, Professor of International Law, Belgrade University,

Mr. Shabtai Rosenne, Member of the Israel Bar,
Mr. Gavro Perazié, Professor of International Law, Podgorica University,

as Counsel,

THE Court,
composed as above,
after deliberation,

delivers the following Judgment:

1. On 20 March 1993, the Government of the Republic of Bosnia and Herze-
govina (hereinafter called “Bosnia and Herzegovina”) filed in the Registry of
the Court an Application instituting proceedings against the Government of

6
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 598

the Federal Republic of Yugoslavia (hereinafter called “Yugoslavia”) in respect
of a dispute concerning alleged violations of the Convention on the Prevention
and Punishment of the Crime of Genocide (hereinafter calied “the Genocide
Convention”), adopted by the General Assembly of the United Nations on
9 December 1948, as well as various matters which Bosnia and Herzegovina
claims are connected therewith. The Application invoked Article IX of the
Genocide Convention as the basis of the jurisdiction of the Court.

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
immediately communicated to the Yugoslav Government by the Registrar;
pursuant to paragraph 3 of that Article, all States entitled to appear before the
Court were notified of the Application.

3. Pursuant to Article 43 of the Rules of Court, the Registrar addressed the
notification provided for in Article 63, paragraph 1, of the Statute to all the
States which appeared to be parties to the Genocide Convention on the basis of
the information supplied by the Secretary-General of the United Nations as
depositary; he also addressed to the Secretary-General the notification pro-
vided for in Article 34, paragraph 3, of the Statute.

4, On 20 March 1993, immediately after the filing of its Application, Bosnia
and Herzegovina submitted a request for the indication of provisional measures
under Article 41 of the Statute. On 31 March 1993, the Agent of Bosnia and
Herzegovina filed in the Registry, invoking it as an additional basis of the juris-
diction of the Court in the case, the text of a letter dated 8 June 1992, addressed
to the President of the Arbitration Commission of the International Conference
for Peace in Yugoslavia by the Presidents of the Republics of Montenegro and
Serbia. .

On | April 1993, Yugoslavia submitted written observations on Bosnia and
Herzegovina’s request for provisional measures, in which, in turn, it recom-
mended the Court to order the application of provisional measures to Bosnia
and Herzegovina.

By an Order dated 8 April 1993, the Court, after hearing the Parties, indi-
cated certain provisional measures with a view to the protection of rights under
the Genocide Convention.

5. By an Order of 16 April 1993, the President of the Court fixed 15 October
1993 as the time-limit for the filing of the Memorial of Bosnia and Herzegovina
and 15 April 1994 as the time-limit for the filing of the Counter-Memorial of
Yugoslavia.

6. Since the Court included upon the Bench no judge of the nationality of
the Parties, each of them exercised its right under Article 31, paragraph 3, of
the Statute of the Court to choose a judge ad hoc to sit in the case: Bosnia and
Herzegovina chose Mr. Elihu Lauterpacht, and Yugoslavia chose Mr. Milenko
Kreéa.

7. On 27 July 1993, Bosnia and Herzegovina submitted a new request for the
indication of provisional measures; and, by a series of subsequent communica-
tions, it stated that it was amending or supplementing that request, as well as,
in some cases, the Application, including the basis of jurisdiction relied on
therein. By letters of 6 August and 10 August 1993, the Agent of Bosnia and
Herzegovina indicated that his Government was relying, as additional bases of
the jurisdiction of the Court in the case, on, respectively, the Treaty between
the Allied and Associated Powers and the Kingdom of the Serbs, Croats and
Slovenes on the Protection of Minorities, signed at Saint-Germain-en-Laye on

7
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 599

10 September 1919, and on customary and conventional international laws of
war and international humanitarian law; and, by a letter of 13 August 1993,
the Agent of Bosnia and Herzegovina confirmed his Government’s desire to
rely, on the same basis, on the aforementioned letter from the Presidents of
Montenegro and Serbia, dated 8 June 1992 (see paragraph 4 above).

On 10 August 1993, Yugoslavia also submitted a request for the indication of
provisional measures; and, on 10 August and 23 August 1993, it filed written
observations on Bosnia and Herzegovina’s new request, as amended or supple-
mented.

By an Order dated 13 September 1993, the Court, after hearing the Parties,
reaffirmed the measures indicated in its Order of 8 April 1993 and declared that
those measures should be immediately and effectively implemented.

8. By an Order dated 7 October 1993, the Vice-President of the Court, at the
request of Bosnia and Herzegovina, extended to 15 April 1994 the time-limit for
the filing of the Memorial; the time-limit for the filing of the Counter-Memorial
was extended, by the same Order, to 15 April 1995. Bosmia and Herzegovina
duly filed its Memorial within the extended time-limit thus fixed.

9. By an Order dated 21 March 1995, the President of the Court, at the
request of Yugoslavia, extended to 30 June 1995 the time-limit for the filing of
the Counter-Memorial. Within the extended time-limit thus fixed, Yugoslavia,
referring to Article 79, paragraph 1, of the Rules of Court, raised preliminary
objections concerning, respectively, the admissibility of the Application and the
jurisdiction of the Court to entertain the case. Accordingly, by an Order dated
14 July 1995, the President of the Court, noting that, by virtue of Article 79,
paragraph 3, of the Rules of Court, the proceedings on the merits were sus-
pended, fixed 14 November 1995 as the time-limit within which Bosnia and
Herzegovina could present a written statement of its observations and submis-
sions on the preliminary objections raised by Yugoslavia. Bosnia and Herze-
govina filed such a statement within the time-limit so fixed, and the case
became ready for hearing in respect of the preliminary objections.

10. By a letter dated 2 February 1996, the Agent of Yugoslavia submitted to
the Court, “as a document relevant to the case”, the text of the General Frame-
work Agreement for Peace in Bosnia and Herzegovina and the annexes thereto
(collectively “the peace agreement”), initialled in Dayton, Ohio, on 21 Novem-
ber 1995 and signed in Paris on 14 December 1995 (hereinafter called the
“Dayton-Paris Agreement”).

11. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court
decided to make the pleadings and documents annexed thereto accessible to the
public on the opening of the oral proceedings.

12. Public hearings were held between 29 April and 3 May 1996 at which the
Court heard the oral arguments and replies of:

For Yugoslavia: Mr. Rodoljub Etinski,
Mr. Miodrag Mitié,
Mr. Djordje Lopitic,
Mr. Eric Suy,
Mr. Tan Brownlie,
Mr. Gavro Perazié.
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 600

For Bosnia and Herzegovina: H.E. Mr. Muhamed Sacirbey,

Mr. Phon van den Biesen,
Mr. Alain Pellet,

Ms Brigitte Stern,

Mr. Thomas M. Franck.

*.

13. In the Application, the following requests were made by Bosnia and
Herzegovina :

“Accordingly, while reserving the right to revise, supplement or amend
this Application, and subject to the presentation to the Court of the rele-
vant evidence and legal arguments, Bosnia and Herzegovina requests the
Court to adjudge and declare as follows:

(a)

(b)

(ce)

(d)

(e)

(f)

(g)

(h)

that Yugoslavia (Serbia and Montenegro) has breached, and is con-
tinuing to breach, its legal obligations toward the People and State of
Bosnia and Herzegovina under Articles I, II (a), II (6), II fc),
II (d), UI (a), I fb), I (c), Il (d), WI fe), IV and V of the
Genocide Convention;

that Yugoslavia (Serbia and Montenegro) has violated and is con-
tinuing to violate its legal obligations toward the People and State of
Bosnia and Herzegovina under the four Geneva Conventions of
1949, their Additional Protocol I of 1977, the customary interna-
tional laws of war including the Hague Regulations on Land Warfare
of 1907, and other fundamental principles of international humani-
tarian law;

that Yugoslavia (Serbia and Montenegro) has violated and continues
to violate Articles 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18,
19, 20, 21, 22, 23, 25, 26 and 28 of the Universal Declaration of
Human Rights with respect to the citizens of Bosnia and Herze-
govina;

that Yugoslavia (Serbia and Montenegro), in breach of its obliga-
tions under general and customary international law, has killed,
murdered, wounded, raped, robbed, tortured, kidnapped, illegally
detained, and exterminated the citizens of Bosnia and Herzegovina,
and is continuing to do so;

that in its treatment of the citizens of Bosnia and Herzegovina,
Yugoslavia (Serbia and Montenegro) has violated, and is continuing
to violate, its solemn obligations under Articles 1 (3), 55 and 56 of
the United Nations Charter;

that Yugoslavia (Serbia and Montenegro) has used and is continuing
to use force and the threat of force against Bosnia and Herzegovina
in violation of Articles 2 (1), 2 (2), 2 (3), 2 (4), and 33 (1), of the
United Nations Charter;

that Yugoslavia (Serbia and Montenegro), in breach of its obliga-
tions under general and customary international law, has used and is
using force and the threat of force against Bosnia and Herzegovina;
that Yugoslavia (Serbia and Montenegro), in breach of its obliga-
tions under general and customary international law, has violated
and is violating the sovereignty of Bosnia and Herzegovina by:

— armed attacks against Bosnia and Herzegovina by air and land;

9
(j)

(k)

(1)

(m)

(n)

(o)

(p)

APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 601

— aerial trespass into Bosnian airspace;
— efforts by direct and indirect means to coerce and intimidate the
Government of Bosnia and Herzegovina;

that Yugoslavia (Serbia and Montenegro), in breach of its obliga-
tions under general and customary international law, has intervened
and is intervening in the internal affairs of Bosnia and Herzegovina;
that Yugoslavia (Serbia and Montenegro), in recruiting, training,
arming, equipping, financing, supplying and otherwise encouraging,
supporting, aiding, and directing military and paramilitary actions in
and against Bosnia and Herzegovina by means of its agents and sur-
rogates, has violated and is violating its express charter and treaty
obligations to Bosnia and Herzegovina and, in particular, its charter
and treaty obligations under Article 2 (4) of the United Nations
Charter, as well as its obligations under general and customary inter-
national law;

that under the circumstances set forth above, Bosnia and Herze-
govina has the sovereign right to defend Itself and its People under
United Nations Charter Article 51 and customary international law,
including by means of immediately obtaining military weapons,
equipment, supplies and troops from other States;

that under the circumstances set forth above, Bosnia and Herze-
govina has the sovereign right under United Nations Charter
Article 51 and customary international law to request the immediate
assistance of any State to come to its defence, including by military
means (weapons, equipment, supplies, troops, etc.);

that Security Council resolution 713 (1991), imposing a weapons
embargo upon the former Yugoslavia, must be construed in a man-
ner that shall not impair the inherent right of individual or collective
self-defence of Bosnia and Herzegovina under the terms of United
Nations Charter Article 51 and the rules of customary international
law;

that all subsequent Security Council resolutions that refer to or
reaffirm resolution 713 (1991) must be construed in a manner that
shall not impair the inherent right of individual or collective self-
defence of Bosnia and Herzegovina under the terms of United Nations
Charter Article 51 and the rules of customary international law;

that Security Council resolution 713 (1991) and all subsequent Secu-
rity Council resolutions referring thereto or reaffirming thereof must
not be construed to impose an arms embargo upon Bosnia and
Herzegovina, as required by Articles 24 (1) and 51 of the United
Nations Charter and in accordance with the customary doctrine of
ultra vires;

that pursuant to the right of collective self-defence recognized by
United Nations Charter Article 51, all other States parties to the
Charter have the right to come to the immediate defence of Bosnia
and Herzegovina — at its request — including by means of immedi-
ately providing it with weapons, military equipment and supplies,
and armed forces (soldiers, sailors, airpeople, etc.);

10
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 602

(q) that Yugoslavia (Serbia and Montenegro) and its agents and surro-
gates are under an obligation to cease and desist immediately from its
breaches of the foregoing legal obligations, and is under a particular
duty to cease and desist immediately :

— from its systematic practice of so-called ‘ethnic cleansing’ of the
citizens and sovereign territory of Bosnia and Herzegovina;

— from the murder, summary execution, torture, rape, kidnapping,
mayhem, wounding, physical and mental abuse, and detention of
the citizens of Bosnia and Herzegovina;

— from the wanton devastation of villages, towns, districts, cities,
and religious institutions in Bosnia and Herzegovina;

— from the bombardment of civilian population centres in Bosnia
and Herzegovina, and especially its capital, Sarajevo;

— from continuing the siege of any civilian population centres in
Bosnia and Herzegovina, and especially its capital, Sarajevo;

-— from the starvation of the civilian population in Bosnia and
Herzegovina;

— from the interruption of, interference with, or harassment of
humanitarian relief supplies to the citizens of Bosnia and Herze-
govina by the international community;

— from all use of force — whether direct or indirect, overt or covert
— against Bosnia and Herzegovina, and from all threats of force
against Bosnia and Herzegovina;

— from all violations of the sovereignty, territorial integrity or
political independence of Bosnia and Herzegovina, including all
intervention, direct or indirect, in the internal affairs of Bosnia
and Herzegovina;

— from all support of any kind — including the provision of train-
ing, arms, ammunition, finances, supplies, assistance, direction or
any other form of support — to any nation, group, organization,
movement or individual engaged or planning to engage in mili-
tary or paramilitary actions in or against Bosnia and Herze-
govina;

{r) that Yugoslavia (Serbia and Montenegro) has an obligation to pay
Bosnia and Herzegovina, in its own right and as parens patriae for its
citizens, reparations for damages to persons and property as well as
to the Bosnian economy and environment caused by the foregoing
violations of international law in a sum to be determined by the
Court. Bosnia and Herzegovina reserves the right to introduce to the
Court a precise evaluation of the damages caused by Yugoslavia
(Serbia and Montenegro).”

14. In the written proceedings, the following submissions were presented by
the Parties:
On behalf of the Government of Bosnia and Herzegovina,
in the Memorial:
“On the basis of the evidence and legal arguments presented in this
Memorial, the Republic of Bosnia and Herzegovina,

11
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 603

Requests the International Court of Justice to adjudge and declare,

1. That the Federal Republic of Yugoslavia (Serbia and Montenegro),
directly, or through the use of its surrogates, has violated and is violating
the Convention on the Prevention and Punishment of the Crime of Geno-
cide, by destroying in part, and attempting to destroy in whole, national,
ethnical or religious groups within the, but not limited to the, territory
of the Republic of Bosnia and Herzegovina, including in particular the
Muslim population, by

— killing members of the group;

— causing deliberate bodily or mental harm to members of the group;

— deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;

— imposing measures intended to prevent births within the group;

2. That the Federal Republic of Yugoslavia (Serbia and Montenegro)
has violated and is violating the Convention on the Prevention and Pun-
ishment of the Crime of Genocide by conspiring to commit genocide, by
complicity in genocide, by attempting to commit genocide and by incite-
ment to commit genocide;

3. That the Federal Republic of Yugoslavia (Serbia and Montenegro)
has violated and is violating the Convention on the Prevention and Pun-
ishment of the Crime of Genocide by aiding and abetting individuals and
groups engaged in acts of genocide;

4. That the Federal Republic of Yugoslavia (Serbia and Montenegro)
has violated and is violating the Convention on the Prevention and Pun-
ishment of the Crime of Genocide by virtue of having failed to prevent and
to punish acts of genocide;

5. That the Federal Republic of Yugoslavia (Serbia and Montenegro)
must immediately cease the above conduct and take immediate and effec-
tive steps to ensure full compliance with its obligations under the Conven-
tion on the Prevention and Punishment of the Crime of Genocide;

6. That the Federal Republic of Yugoslavia (Serbia and Montenegro)
must wipe out the consequences of its international wrongful acts and must
restore the situation existing before the violations of the Convention on the
Prevention and Punishment of the Crime of Genocide were committed;

7. That, as a result of the international responsibility incurred for the
above violations of the Convention on the Prevention and Punishment of
the Crime of Genocide, the Federal Republic of Yugoslavia (Serbia and
Montenegro) is required to pay, and the Republic of Bosnia and Herze-
govina is entitled to receive, in its own right and as parens patriae for its
citizens, full compensation for the damages and losses caused, in the
amount to be determined by the Court in a subsequent phase of the pro-
ceedings in this case.

The Republic of Bosnia and Herzegovina reserves its right to supple-
ment or amend its submissions in the light of further pleadings.

The Republic of Bosnia and Herzegovina also respectfully draws the
attention of the Court to the fact that it has not reiterated, at this point,
several of the requests it made in its Application, on the formal assump-
tion that the Federal Republic of Yugoslavia (Serbia and Montenegro) has

12
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 604

accepted the jurisdiction of this Court under the terms of the Convention
on the Prevention and Punishment of the Crime of Genocide. If the
Respondent were to reconsider its acceptance of the jurisdiction of the
Court under the terms of that Convention — which it is, in any event, not
entitled to do — the Government of Bosnia and Herzegovina reserves its
right to invoke also all or some of the other existing titles of jurisdiction
and to revive all or some of its previous submissions and requests.”

On behalf of the Government of Yugoslavia,
in the preliminary objections:

“The Federal Republic of Yugoslavia asks the Court to adjudge and
declare:

First preliminary objection
A.1. Whereas civil war excludes the existence of an international dis-
pute,

the Application of the so-called Republic of Bosnia and Herzegovina is -
not admissible.

Second preliminary objection

A.2. Whereas Alija Izetbegovié did not serve as the President of the
Republic at the time when he granted the authorization to initiate proceed-
ings and whereas the decision to initiate proceedings was not taken by the
Presidency nor the Government as the competent organs, the authoriza-
tion for the initiation and conduct of proceedings was granted in violation
of a rule of internal law of fundamental significance and, consequently,

the Application by the so-called Republic of Bosnia and Herzegovina is

not admissible.
Third preliminary objection

B.1. Whereas the so-called Republic of Bosnia and Herzegovina has by
its acts on independence flagrantly violated the duties stemming from the
principle of equal rights and self-determination of peoples and for that
reason the Notification of Succession, dated 29 December 1992, of the
Applicant to the 1948 Convention on the Prevention and Punishment
of the Crime of Genocide has no legal effect,

Whereas the so-called Republic of Bosnia and Herzegovina has not
become a State party to the 1948 Convention on the Prevention and Pun-
ishment of the Crime of Genocide in accordance with the provisions of the
Convention itself,

the so-called Republic of Bosnia and Herzegovina is not a State party to
the 1948 Convention on the Prevention and Punishment of the Crime of
Genocide and consequently

the Court has no jurisdiction over this case.
Fourth preliminary objection

B.2. Whereas the so-called Republic of Bosnia and Herzegovina has
been recognized in contravention of the rules of international law and that

13
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 605

it has never been established in the territory and in the form in which it
pretends to exist ever since its illegal declaration of independence, and that
there are at present four States in existence in the territory of the former
Yugoslav Republic of Bosnia and Herzegovina, the so-called Republic of
Bosnia and Herzegovina is not a party to the 1948 Convention on the Pre-
vention and Punishment of the Crime or Genocide, and consequently,

the Court has no jurisdiction over this case.
Fifth preliminary objection

C. Whereas the case in point is an internal conflict between four sides in
which the Federal Republic of Yugoslavia is not taking part and whereas

the Federal Republic of Yugoslavia did not exercise any jurisdiction over
the disputed areas in the period under review,

Whereas the Memorial of the Applicant State is based upon a funda-
mentally erroneous construction of the 1948 Convention on the Prevention
and Punishment of the Crime of Genocide and, in consequence the claims
contained in the ‘Submissions’ are based on allegations of State responsi-
bility which fall outside the scope of the Convention and of its compro-
missory clause,

there is no international dispute under Article IX of the 1948 Conven-
tion on the Prevention and Punishment of the Crime of Genocide and,
consequently,

the Court has no jurisdiction over this case.

If the Court does not accept any of the above-mentioned preliminary
objections:
Sixth preliminary objection

D.1. Without prejudice to the above exposed preliminary objections,
whereas the Notification of Succession, dated 29 December 1992, whereby
the so-called Republic of Bosnia and Herzegovina expressed the intention
to enter into the 1948 Convention on the Prevention and Punishment of
the Crime of Genocide can only produce the effect of accession to the
Convention, .

the Court has jurisdiction over this case as of 29 March 1993 and, thus,
the Applicant’s claims pertaining to the alleged acts or facts which
occurred prior to that date do not fall within the jurisdiction of the
Court.

In case the Court refuses to adopt the preliminary objection under D.1:

Seventh preliminary objection

D.2. Without prejudice to the sixth preliminary objection, if the Appli-
cant State’s Notification of Succession, dated 29 December 1992, is con-
strued on the basis that it has the effect that the Applicant State became a
party to the 1948 Genocide Convention from 6 March 1992, according to
the rule of customary international law, the 1948 Convention on the Pre-
vention and Punishment of the Crime of Genocide would not be operative
between the parties prior to 29 December 1992 and, accordingly, this would

14
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 606

not confer jurisdiction on the Court in respect of events occurring prior to
29 December 1992 and consequently,

the Applicant’s claims pertaining to the alleged acts or facts which
occurred prior to 29 December 1992 do not fall within the jurisdiction of
the Court.

The Federal Republic of Yugoslavia reserves its right to supplement or
amend its submissions in the light of further pleadings.”
On behalf of the Government of Bosnia and Herzegovina,
in the written statement containing its observations and submissions on the
preliminary objections:
“In consideration of the foregoing, the Government of the Republic of
Bosnia and Herzegovina requests the Court:

— to reject and dismiss the Preliminary Objections of Yugoslavia (Serbia
and Montenegro); and
— to adjudge and declare:

(i) that the Court has jurisdiction in respect of the submissions
presented in the Memorial of Bosnia and Herzegovina; and
(ii) that the submissions are admissible.”

15. In the oral proceedings, the following submissions were presented by the
Parties:
On behalf of the Government of Yugoslavia},
at the hearing on 2 May 1996:
“The Federal Republic of Yugoslavia asks the Court to adjudge and
declare:
First preliminary objection
Whereas the events in Bosnia and Herzegovina to which the Application
refers constituted a civil war, no international dispute exists within the

terms of Article IX of the 1948 Convention on the Prevention and Pun-
ishment of the Crime of Genocide, consequently,

the Application of Bosnia and Herzegovina is not admissible.
Second preliminary objection

Whereas Mr. Alija Izetbegovié did not serve as the President of the
Republic at the time when he granted the authorization to initiate proceed-
ings and whereas the decision to initiate proceedings was not taken either
by the Presidency or the Government as the competent organs, the authori-
zation for the initiation and conduct of proceedings was granted in viola-
tion of the rules of internal law of fundamental significance, consequently,

the Application by Bosnia and Herzegovina is not admissible.
Third preliminary objection
Whereas Bosnia and Herzegovina has not established its independent

1 The Government of Yugoslavia relinquished its fourth preliminary objection.

15
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 607

statehood in conformity with the principle of equal rights and self-
determination of peoples and for that reason could not succeed to the 1948
Convention on the Prevention and Punishment of the Crime of Genocide,

Whereas Bosnia and Herzegovina has not become a party to the 1948
Convention on the Prevention and Punishment of the Crime of Genocide
in accordance with the provisions of the Convention itself,

Bosnia and Herzegovina is not a party to the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide, consequently,

the Court lacks the competence over the case.
Fifth preliminary objection

Whereas the case in point is an internal conflict between three sides in
which the Federal Republic of Yugoslavia was not taking part and whereas

the Federal Republic of Yugoslavia did not exercise any jurisdiction within
the region of Bosnia and Herzegovina at the material time,

Whereas the Memorial of the Applicant State is based upon a funda-
mentally erroneous interpretation of the 1948 Convention on the Preven-
tion and Punishment of the Crime of Genocide and, in consequence, the
claims contained in the ‘Submissions’ are based on allegations of State
responsibility which fall outside the scope of the Convention and of its
compromissory clause,

there is no international dispute under Article IX of the 1948 Conven-
tion on the Prevention and Punishment of the Crime of Genocide, con-
sequently,

the Court lacks the competence over the case.

If the Court does not accept any of the above-mentioned preliminary
objections:

Sixth preliminary objection
Without prejudice to the above exposed preliminary objections, whereas
the two Parties recognized each other on 14 December 1995, the 1948 Con-

vention on the Prevention and Punishment of the Crime of Genocide was
not operative between them prior to 14 December 1995, consequently,

the Court lacks the competence before 14 December 1995 over the case.

Alternatively and without prejudice to the preliminary objections formu-
lated above, whereas the Notification of Succession, dated 29 December
1992, whereby Bosnia and Herzegovina expressed the intention to enter
into the 1948 Convention on the Prevention and Punishment of the Crime
of Genocide can only produce the effect of accession to the Convention,

the Court lacks competence before 29 March 1993 over the case and,
thus, the Applicant’s claims pertaining to the alleged acts or facts which
occurred prior to that date do not fall within the competence of the
Court.

In case the Court refuses to adopt the above preliminary objections:

16
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 608

Seventh preliminary objection

If the Applicant State’s Notification of Succession, dated 29 December
1992, is construed as having an effect of the Applicant State becoming a
party to the 1948 Convention on the Prevention and Punishment of the
Crime of Genocide from 6 March 1992 and whereas the Secretary-General
of the United Nations sent to the parties of the said Convention the Note
dated 18 March 1993, informing of the said succession, according to the
rules of general international law, the 1948 Convention on the Prevention
and Punishment of the Crime of Genocide would not be operative between
the Parties prior to 18 March 1993 and, whereas this would not confer
the competence on the Court in respect of events occurring prior to
18 March 1993, consequently,

the Applicant’s claims pertaining to the alleged acts or facts which
occurred prior to 18 March 1993 do not fall within the competence of
the Court.

As a final alternative:

If the Applicant State’s Notification of Succession, dated 29 December
1992, is construed as having the effect of the Applicant State becoming a
party to the Convention on the Prevention and Punishment of the Crime
of Genocide from 6 March 1992, according to the rules of general inter-
national law, the 1948 Convention on the Prevention and Punishment of
the Crime of Genocide would not be operative between the Parties prior to
29 December 1992, and, whereas this would not confer competence on the
Court in respect of events occurring prior to 29 December 1992, conse-
quently,

the Applicant’s claims pertaining to the alleged acts or facts which
occurred prior to 29 December 1992 do not fall within the competence
of the Court.

Objections on alleged additional bases of jurisdiction

In view of the claim of the Applicant to base the jurisdiction of the
Court under Articles 11 and 16 of the Treaty between Allied and Asso-
ciated Powers and the Kingdom of Serbs, Croats and Slovenes, signed
at Saint-Germain-en-Laye on 10 September 1919, the Federal Republic of
Yugoslavia asks the Court

to reject the said claim,

— because the Treaty between Allied and Associated Powers and the
Kingdom of Serbs, Croats and Slovenes signed at Saint-Germain-en-
Laye on 10 September 1919 is not in force; and alternatively

— because the Applicant is not entitled to invoke the jurisdiction of the
Court according to Articles 11 and 16 of the Treaty.

In view of the claim of the Applicant to establish the jurisdiction of the
Court on the basis of the letter of 8 June 1992, sent by the Presidents of the
two Yugoslav Republics, Serbia and Montenegro, Mr. Slobodan Milo-
sevié and Mr. Momir Bulatovié, to the President of the Arbitration Com-
mission of the Conference on Yugoslavia, the Federal Republic of Yugo-
slavia asks the Court

to reject the said claim,

17
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 609

— because the declaration contained in the letter of 8 June 1992 cannot
be understood as a declaration of the Federal Republic of Yugoslavia
according to the rules of international law; and

— because the declaration was not in force on 31 March 1993 and later.

In view of the claim of the Applicant State to establish the jurisdiction
of the Court on the basis of the doctrine of forum prorogatum, the Federal
Republic of Yugoslavia asks the Court

to reject the said claim,

— because the request for indication of provisional measures of protec-
tion does not imply a consent to the jurisdiction of the Court; and

— because the conditions for the application of the doctrine of forum pro-
rogatum are not fulfilled.”

On behalf of the Government of Bosnia and Herzegovina,
at the hearing on 3 May 1996:

“Considering what has been stated by Bosnia and Herzegovina in all of
its previous written submissions, considering what has been stated by the
representatives of Bosnia and Herzegovina in the course of this week’s oral
proceedings, the Government of Bosnia and Herzegovina respectfully
requests the Court,

1. to adjudge and declare that the Federal Republic of Yugoslavia has
abused its right to raise preliminary objections as foreseen in Article 36,
paragraph 6, of the Statute of the Court and to Article 79 of the Rules of
Court;

2. to reject and dismiss the preliminary objections of the Federal Repub-
lic of Yugoslavia; and

3. to adjudge and declare:

G) that the Court has jurisdiction on the various grounds set out in
our previous written submissions and as further demonstrated
during the present pleadings in respect of the submissions
presented in the Memorial of Bosnia and Herzegovina; and

(ii) that the submissions are admissible.”

x * 4

16. Bosnia and Herzegovina has principally relied, as a basis for the
jurisdiction of the” Court in this case, on Article IX of the Genocide
Convention. The Court will initially consider the preliminary objections
raised by Yugoslavia on this point. It takes note, first, of the withdrawal
by Yugoslavia, during the oral proceedings, of its fourth preliminary
objection, which therefore need no longer be dealt with. In its third objec-
tion, Yugoslavia, on various grounds, has disputed the contention that
the Convention binds the two Parties or that it has entered into force
between them; and in its fifth objection, Yugoslavia has objected, for
various reasons, to the argument that the dispute submitted by Bosnia

18
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 610

and Herzegovina falls within the provisions of Article IX of the Conven-
tion. The Court will consider these two alleged grounds of lack of juris-
diction m turn.

*

17. The proceedings instituted before the Court are between two States
whose territories are located within the former Socialist Federal Republic
of Yugoslavia. That Republic signed the Genocide Convention on
11 December 1948 and deposited its instrument of ratification, without
reservation, on 29 August 1950. At the time of the proclamation of the
Federal Republic of Yugoslavia, on 27 April 1992, a formal declaration
was adopted on its behalf to the effect that:

“The Federal Republic of Yugoslavia, continuing the State,
international legal and political personality of the Socialist Federal
Republic of Yugoslavia, shall strictly abide by all the commitments
that the Socialist Federal Republic of Yugoslavia assumed interna-
tionally.”

This intention thus expressed by Yugoslavia to remain bound by the
international treaties to which the former Yugoslavia was party was con-
firmed in an official Note of 27 April 1992 from the Permanent Mission
of Yugoslavia to the United Nations, addressed to the Secretary-General.
The Court observes, furthermore, that it has not been contested that
Yugoslavia was party to the Genocide Convention. Thus, Yugoslavia
was bound by the provisions of the Convention on the date of the filing
of the Application in the present case, namely, on 20 March 1993.

18. For its part, on 29 December 1992, Bosnia and Herzegovina trans-
mitted to the Secretary-General of the United Nations, as depositary of
the Genocide Convention, a Notice of Succession in the following terms:

“the Government of the Republic of Bosnia and Herzegovina, having
considered the Convention on the Prevention and Punishment of
the Crime of Genocide, of December 9, 1948, to which the former
Socialist Federal Republic of Yugoslavia was a party, wishes to suc-
ceed to the same and undertakes faithfully to perform and carry out
all the stipulations therein contained with effect from March 6, 1992,
the date on which the Republic of Bosnia and Herzegovina became
independent”.

On 18 March 1993, the Secretary-General communicated the following
Depositary Notification to the parties to the Genocide Convention:

“On 29 December 1992, the notification of succession by the
Government of Bosnia and Herzegovina to the above-mentioned
Convention was deposited with the Secretary-General, with effect
from 6 March 1992, the date on which Bosnia and Herzegovina
assumed responsibility for its international relations.”

19
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 611

19. Yugoslavia has contested the validity and legal effect of the Notice
of 29 December 1992, contending that, by its acts relating to its accession
to independence, the Republic of Bosnia and Herzegovina had flagrantly
violated the duties stemming from the “principle of equal rights and self-
determination of peoples”. According to Yugoslavia, Bosnia and Herze-
govina was not, for this reason, qualified to become a party to the con-
vention. Yugoslavia subsequently reiterated this objection in the third
preliminary objection which it raised in this case.

The Court notes that Bosnia and Herzegovina became a Member of
the United Nations following the decisions adopted on 22 May 1992 by
the Security Council and the General Assembly, bodies competent under
the Charter. Article XI of the Genocide Convention opens it to “any
Member of the United Nations”; from the time of its admission to the
Organization, Bosnia and Herzegovina could thus become a party to the
Convention. Hence the circumstances of its accession to independence
are of little consequence.

20. It is clear from the foregoing that Bosnia and Herzegovina could
become a party to the Convention through the mechanism. of State
succession. Moreover, the Secretary-General of the United Nations con-
sidered that this had been the case, and the Court took note of this in
its Order of 8 April 1993 (Application of the Convention on the Preven-
tion and Punishment of the Crime of Genocide, Provisional Measures,
1 C.J. Reports 1993, p. 16, para. 25).

21. The Parties to the dispute differed as to the legal consequences to
be drawn from the occurrence of a State succession in the present case. In
this context, Bosnia and Herzegovina has, among other things, con-
tended that the Genocide Convention falls within the category of instru-
ments for the protection of human rights, and that consequently, the rule
of “automatic succession” necessarily applies. Bosnia and Herzegovina
concluded therefrom that it became a party to the Convention with effect
from its accession to independence. Yugoslavia disputed any “automatic
succession” of Bosnia and Herzegovina to the Genocide Convention on
this or any other basis.

22. As regards the nature of the Genocide Convention, the Court
would recall what it stated in its Advisory Opinion of 28 May 1951 relat-
ing to the Reservations to the Convention on the Prevention and Punish-
ment of the Crime of Genocide:

“In such a convention the contracting States do not have any
interests of their own; they merely have, one and all, a common
interest, namely, the accomplishment of those high purposes which
are the raison d’étre of the convention. Consequently, in a conven-
tion of this type one cannot speak of individual advantages or dis-
advantages to States, or of the maintenance of a perfect contractual
balance between rights and duties.” (1. C.J. Reports 1951, p. 23.)

20
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 612

The Court subsequently noted in that Opinion that:

“The object and purpose of the Genocide Convention imply that
it was the intention of the General Assembly and of the States which
adopted it that as many States as possible should participate. The
complete exclusion from the Convention of one or more States
would not only restrict the scope of its application, but would
detract from the authority of the moral and humanitarian principles
which are its basis.” (1 C.J. Reports 1951, p. 24.)

23. Without prejudice as to whether or not the principle of “automatic
succession” applies in the case of certain types of international treaties or
conventions, the Court does not consider it necessary, in order to decide
on its jurisdiction in this case, to make a determination on the legal issues
concerning State succession in respect to treaties which have been raised
by the Parties. Whether Bosnia and Herzegovina automatically became
party to the Genocide Convention on the date of its accession to inde-
pendence on 6 March 1992, or whether it became a party as a result —
retroactive or not — of its Notice of Succession of 29 December 1992, at
all events it was a party to it on the date of the filing of its Application
on 20 March 1993. These matters might, at the most, possess a certain
relevance with respect to the determination of the scope ratione temporis
of the jurisdiction of the Court, a point which the Court will consider
later (paragraph 34 below).

24. Yugoslavia has also contended, in its sixth preliminary objection,
that, if the Notice given by Bosnia and Herzegovina on 29 December
1992 had to be interpreted as constituting an instrument of accession
within the meaning of Article XI of the Genocide Convention, it could
only have become effective, pursuant to Article XIII of the Convention,
on the 90th day following its deposit, that is, 29 March 1993.

Since the Court has concluded that Bosnia and Herzegovina could
become a party to the Genocide Convention as a result of a succession,
the question of the application of Articles XI and XIII of the Convention
does not arise. However, the Court would recall that, as it noted in its
Order of 8 April 1993, even if Bosnia and Herzegovina were to be treated
as having acceded to the Genocide Convention, which would mean that
the Application could be said to be premature by nine days when filed on
20 March 1993, during the time elapsed since then, Bosnia and Herze-
govina could, on its own initiative, have remedied the procedural defect
by filing a new Application. It therefore matters little that the Applica-
tion had been filed some days too early. As will be indicated in the fol-
lowing paragraphs, the Court is not bound to attach the same degree of
importance to considerations of form as they might possess in domestic
law.

25. However, in the oral proceedings Yugoslavia submitted that, even
supposing that Bosnia and Herzegovina had been bound by the Conven-
tion in March 1993, it could not, at that time, have entered into force

21
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 613

between the Parties, because the two States did not recognize one another
and the conditions necessary to found the consensual basis of the Court’s
jurisdiction were therefore lacking. However, this situation no longer
obtains since the signature, and the entry into force on 14 December
1995, of the Dayton-Paris Agreement, Article X of which stipulates that:

“The Federal Republic of Yugoslavia and the Republic of Bosnia
and Herzegovina recognize each other as sovereign independent
States within their international borders. Further aspects of their
mutual recognition will be subject to subsequent discussions.”

26. For the purposes of determining its jurisdiction in this case, the
Court has no need to settle the question of what the effects of a situation
of non-recognition may be on the contractual ties between parties to a
multilateral treaty. It need only note that, even if it were to be assumed
that the Genocide Convention did not enter into force between the Parties
until the signature of the Dayton-Paris Agreement, all the conditions are
now fulfilled to found the jurisdiction of the Court ratione personae.

It is the case that the jurisdiction of the Court must normally be
assessed on the date of the filing of the act instituting proceedings. How-
ever, the Court, like its predecessor, the Permanent Court of Interna-
tional Justice, has always had recourse to the principle according to
which it should not penalize a defect in a procedural act which the appli-
cant could easily remedy. Hence, in the case concerning the Mavromma-
tis Palestine Concessions, the Permanent Court said:

“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 cir-
cumstance would now be covered by the subsequent deposit of the
necessary ratifications.” (P.C.IJ., Series A, No. 2, p. 34.)

The same principle lies at the root of the following dictum of the Perma-
nent Court of International Justice in the case concerning Certain Ger-
man Interests in Polish Upper Silesia:

“Even if, under Article 23, 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.” (P.C.LJ.,
Series A, No. 6, p. 14.)

The present Court applied this principle in the case concerning the
Northern Cameroons (I C.J. Reports 1963, p. 28), as well as Military and

22
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 614

Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America) when it stated: “It would make no sense to require
Nicaragua now to institute fresh proceedings based on the Treaty, which
it would be fully entitled to do.” (ZCJ. Reports 1984, pp. 428-429,
para. 83.)

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.

In the light of the foregoing, the Court considers that it must reject
Yugoslavia’s third preliminary objection.

*

27. In order to determine whether it has jurisdiction to entertain the
case on the basis of Article IX of the Genocide Convention, it remains
for the Court to verify whether there is a dispute between the Parties that
falls within the scope of that provision. Article IX of the Convention is
worded as follows:

“Disputes between the Contracting Parties relating to the interpre-
tation, 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 II, shall be submitted to the
International Court of Justice at the request of any of the parties to
the dispute.”

It is jurisdiction ratione materiae, as so defined, to which Yugoslavia’s
fifth objection relates.

28. In their final form, the principal requests submitted by Bosnia and
Herzegovina are for the Court to adjudge and declare that Yugoslavia has
in several ways violated the Genocide Convention; to order Yugoslavia to
cease the acts contrary to the obligations stipulated in the Convention; and
to declare that Yugoslavia has incurred international responsibility by
reason of those violations, for which it must make appropriate reparation.
While Yugoslavia has refrained from filing a Counter-Memorial on the
merits and has raised preliminary objections, it has nevertheless wholly
denied all of Bosnia and Herzegovina’s allegations, whether at the stage of
proceedings relating to the requests for the indication of provisional meas-
ures, or at the stage of the present proceedings relating to those objections.

29. In conformity with well-established jurisprudence, the Court
accordingly notes that there persists

“a situation in which the two sides hold clearly opposite views
concerning the question of the performance or non-performance of
certain treaty obligations” (Interpretation of Peace Treaties with

23
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 615

Bulgaria, Hungary and Romania, First Phase, Advisory Opinion,
I. C.J. Reports 1950, p. 74)

and that, by reason of the rejection by Yugoslavia of the complaints
formulated against it by Bosnia and Herzegovina, “there is a legal dis-
pute” between them (East Timor (Portugal v. Australia), I.C.J. Reports
1995, p. 100, para. 22). ,

30. To found its jurisdiction, the Court must, however, still ensure
that the dispute in question does indeed fall within the provisions of
Article IX of the Genocide Convention.

Yugoslavia disputes this. It contests the existence in this case of an
“international dispute” within the meaning of the Convention, basing
itself on two propositions: first, that the conflict occurring in certain
parts of the Applicant’s territory was of a domestic nature, Yugoslavia
was not party to it and did not exercise jurisdiction over that territory at
the time in question; and second, that State responsibility, as referred to
in the requests of Bosnia and Herzegovina, was excluded from the scope
of application of Article IX.

31. The Court will begin with a consideration of Yugoslavia’s first
proposition.

In doing so, it will start by recalling the terms of Article I of the Geno-
cide Convention, worded as follows:

“The Contracting Parties confirm that genocide, whether commit-
ted in time of peace or in time of war, is a crime under international
law which they undertake to prevent and to punish.”

The Court sees nothing in this provision which would make the applica-
bility of the Convention subject to the condition that the acts contem-
plated by it should have been committed within the framework of a
particular type of conflict. The contracting parties expressly state therein
their willingness to consider genocide as “a crime under international
law”, which they must prevent and punish independently of the context
“of peace” or “of war” in which it takes place. In the view of the Court,
this means that the Convention is applicable, without reference to the cir-
cumstances linked to the domestic or international nature of the conflict,
provided the acts to which it refers in Articles II and HI have been per-
petrated. In other words, irrespective of the nature of the conflict forming
the background to such acts, the obligations of prevention and punish-
ment which are incumbent upon the States parties to the Convention
remain identical.

As regards the question whether Yugoslavia took part — directly or
indirectly — in the conflict at issue, the Court would merely note that the
Parties have radically differing viewpoints in this respect and that it can-
not, at this stage in the proceedings, settle this question, which clearly
belongs to the merits.

Lastly, as to the territorial problems linked to the application of the
Convention, the Court would point out that the only provision relevant

24
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 616

to this, Article VI, merely provides for persons accused of one of the acts
prohibited by the Convention to “be tried by a competent tribunal of the
State in the territory of which the act was committed . . .”. It would also
recall its understanding of the object and purpose of the Convention, as
set out in its Opinion of 28 May 1951, cited above:

“The origins of the Convention show that it was the intention of
the United Nations to condemn and punish genocide as ‘a crime
under international law’ involving a denial of the right of existence
of entire human groups, a denial which shocks the conscience of
mankind and results in great losses to humanity, and which is con-
trary to moral law and to the spirit and aims of the United Nations
(Resolution 96 (I) of the General Assembly, December 11th 1946).
The first consequence arising from this conception is that the prin-
ciples underlying the Convention are principles which are recognized
by civilized nations as binding on States, even without any conven-
tional obligation. A second consequence is the universal character
both of the condemnation of genocide and of the co-operation
required ‘in order to liberate mankind from such an odious scourge’
(Preamble to the Convention).” U.C.J. Reports 1951, p. 23.)

It follows that the rights and obligations enshrined by the Convention are
rights and obligations erga omnes. The Court notes that the obligation
each State thus has to prevent and to punish the crime of genocide is not
territorially limited by the Convention.

32. The Court now comes to the second proposition advanced by Yugo-
slavia, regarding the type of State responsibility envisaged in Article IX
of the Convention. According to Yugoslavia, that Article would only
cover the responsibility flowing from the failure of a State to fulfil its obli-
gations of prevention and punishment as contemplated by Articles V,
VI and VII; on the other hand, the responsibility of a State for an act of
genocide perpetrated by the State itself would be excluded from the scope
of the Convention.

The Court would observe that the reference m Article IX to “the
responsibility of a State for genocide or for any of the other acts enumer-
ated in Article IIF”, does not exclude any form of State responsibility.

Nor is the responsibility of a State for acts of its organs excluded by
Article IV of the Convention, which contemplates the commission of an
act of genocide by “rulers” or “public officials”.

33. In the light of the foregoing, the Court considers that it must reject
the fifth preliminary objection of Yugoslavia. It would moreover observe
that it is sufficiently apparent from the very terms of that objection that
the Parties not only differ with respect to the facts of the case, their
imputability and the applicability to them of the provisions of the Geno-
cide Convention, but are moreover in disagreement with respect to the
meaning and legal scope of several of those provisions, including
Article IX. For the Court, there is accordingly no doubt that there
exists a dispute between them relating to “the interpretation, application or

25
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 617

fulfilment of the . . . Convention, including . . . the responsibility of a
State for genocide . . .”, according to the form of words employed by that
latter provision (cf. Applicability of the Obligation to Arbitrate under
Section 21 of the United Nations Headquarters Agreement of 26 June
1947, Advisory Opinion, I C.J. Reports 1988, pp. 27-32).

*

34. Having reached the conclusion that it has jurisdiction in the present
case, both ratione personae and ratione materiae on the basis of Ar-
ticle IX of the Genocide Convention, it remains for the Court to specify
the scope of that jurisdiction ratione temporis. In its sixth and seventh
preliminary objections, Yugoslavia, basing its contention on the principle
of the non-retroactivity of legal acts, has indeed asserted as a subsidiary
argument that, even though the Court might have jurisdiction on the
basis of the 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 the occasion of the signature of the Dayton-Paris
Agreement. 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. This finding is, moreover, in accordance with
the object and purpose of the Convention as defined by the Court in 1951
and referred to above (see paragraph 31). As a result, the Court considers
that it must reject Yugoslavia’s sixth and seventh preliminary objections.

*  _*

35. After the filing of its Application, Bosnia and Herzegovina invoked
various additional bases of jurisdiction of the Court in the present case.
Even though, in both the written and oral proceedings, it relied essen-
tially upon Article IX of the Genocide Convention, Bosnia and Herze-
govina indicated that it was maintaining its claims in relation to those
additional grounds of jurisdiction. In particular, it specified at the hear-
ing that while it was renouncing “all the claims [set forth in its Applica-
tion] which are not directly linked to the genocide committed or abetted
by Yugoslavia”, those additional bases could nonetheless

“present a degree of interest, enabling the Court to make findings on
some of the means used by Yugoslavia to perpetrate the genocide of
which it stands accused, and particularly its recourse to a war of

26
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 618

aggression during which it seriously violated the 1949 Geneva
Conventions and the 1977 Protocols I and IT”;

and Bosnia and Herzegovina went on to say that “The Court might pro-
ceed in this way on the basis of Article IX alone”, explaining that

“The possibility of relying on other bases of jurisdiction . . . would
at least . . . avoid futile arguments between the Parties as to whether
such conduct is or is not linked ‘with sufficient directness’ to the
Convention.”

36. Yugoslavia, for its part, contended during the proceedings that the
Court could not take account of such additional grounds as could have
been referred to in the Application but to which no reference was in fact
made. However, in its final submissions, it did not reiterate that objection
and asked the Court, for the reasons there given, to declare that it lacked
jurisdiction on those grounds.

*

37. As the Court has indicated above (see paragraph 4), the Agent of
Bosnia and Herzegovina filed in the Registry, on 31 March 1993, the text
of a letter dated 8 June 1992 that was addressed to the President of the
Arbitration Commission of the International Conference for Peace in
Yugoslavia by Mr. Momir Bulatovié, President of the Republic of
Montenegro, and Mr. Slobodan Milosevié, President of the Republic of
Serbia. According to the English translation of that letter provided by
Bosnia and Herzegovina, they expressed the following views, inter alia:

“FR Yugoslavia holds the view that all legal disputes which
cannot be settled by agreement between FR Yugoslavia and the
former Yugoslav republics should be taken to the International
Court of Justice, as the principal judicial organ of the United Nations.

Accordingly, and in view of the fact that all the issues raised in
your letter are of a legal nature, FR Yugoslavia proposes that in the
event that agreement is not reached among the participants in the
Conference, these questions should be adjudicated by the Interna-
tional Court of Justice, in accordance with its Statute.”

The Court finds that, given the circumstances in which that letter was
written and the declarations that ensued, it could not be taken as express-
ing an immediate commitment by the two Presidents, binding on Yugo-
slavia, to accept unconditionally the unilateral submission to the Court
of a wide range of legal disputes. It thus confirms the provisional conclu-
sion which it had reached in this regard in its Orders of 8 April (CJ.
Reports 1993, pp. 16-18, paras. 27-32) and 13 September 1993 (LC.J.
Reports 1993, pp. 340-341, para. 32); besides, no fundamentally new
argument has been presented to it on this matter since that time. It fol-

27
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 619

lows that the Court cannot find in that letter an additional basis of juris-
diction in the present case.

38. The Court has likewise recalled above (see paragraph 7) that, by a
communication dated 6 August 1993, the Agent of Bosnia and Herze-
govina indicated that his Government intended likewise to submit, as an
additional basis of jurisdiction, the Treaty between the Allied and Asso-
ciated Powers (the United States of America, the British Empire, France,
Italy and Japan) and the Kingdom of the Serbs, Croats and Slovenes,
that was signed at Saint-Germain-en-Laye on 10 September 1919 and
entered into force on 16 July 1920. Chapter I of that Treaty concerns the
protection of minorities and includes an Article 11 according to which:

“The Serb-Croat-Slovene State agrees that any Member of the
Council of the League of Nations shall have the right to bring to the
attention of the Council any infraction, or any danger of infraction,
of any of these obligations, and that the Council may thereupon take
such action and give such directions as it may deem proper and
effective in the circumstances.

The Serb-Croat-Slovene State further agrees that any difference of
opinion as to questions of law or fact arising out of these Articles
between the Serb-Croat-Slovene State and any one of the Principal
Allied and Associated Powers or any other Power, a member of the
Council of the League of Nations, shall be held to be a dispute of
an international character under Article 14 of the Covenant of the
League of Nations. The Serb-Croat-Slovene State hereby consents
that any such dispute shall, if the other party thereto demands, be
referred to the Permanent Court of International Justice. The deci-
sion of the Permanent Court shall be final and shall have the same
force and effect as an award under Article 13 of the Covenant.”

Chapter II, which concerns succession in respect of treaties, trade, the
treatment of foreign vessels and freedom of transit, includes an Article 16
which provides, inter alia, that

“All rights and privileges accorded by the foregoing Articles to the
Allied and Associated Powers shall be accorded equally to all States
Members of the League of Nations.”

Bosnia and Herzegovina substantially contends that, by the effect of
those two provisions, any Member of the League of Nations could refer
to the Permanent Court a dispute to which Article 11 applied; that the
General Assembly of the United Nations has taken the place of the
Council of the League of Nations in respect of such matters; and that
Bosnia and Herzegovina, as a Member of the United Nations, may now,
by operation of Article 37 of the Statute, seise the present Court of its
dispute with Yugoslavia, on the basis of the 1919 Treaty.

The Court considers that, in so far as Yugoslavia is now bound by the

28
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 620

1919 Treaty as successor to the Kingdom of the Serbs, Croats and
Slovenes, its obligations under that Treaty would be limited to its present
territory; it notes that Bosnia and Herzegovina has put forward no
claim in its Application concerning the treatment of minorities in Yugo-
slavia. In these circumstances, the Court is unable to uphold the 1919
Treaty as a basis on which its jurisdiction in this case could be founded.
On this point as well, the Court thus confirms the provisional conclusion
reached in its Order of 13 September 1993 (1. C.J. Reports 1993, pp. 339-
340, paras. 29-31); besides, no fundamentally new argument has been
presented on this matter either, since that time.

39. As the Court has also recalled above (see paragraph 7), Bosnia and
Herzegovina, by a letter from its Agent dated 10 August 1993, further
invoked as an additional basis of jurisdiction in the present case

“the Customary and Conventional International Laws of War and
International Humanitarian Law, including but not limited to the
Four Geneva Conventions of 1949; their First Additional Protocol
of 1977, the Hague Regulations on Land Warfare of 1907, and the
Nuremberg Charter, Judgment, and Principles”.

As it has already pointed out in its Order of 13 September 1993 CJ.
Reports 1993, p. 341, para. 33), the Court can find no provision relevant
to its jurisdiction in any of the above-mentioned instruments. It notes, in
addition, that the Applicant has made no further reference to this basis of
jurisdiction as such.

40. Lastly, at a later stage of the proceedings, Bosnia and Herzegovina
advanced two related arguments aimed at basing the Court’s jurisdiction
in this case on still other grounds.

According to the first of those arguments, Yugoslavia, by various
aspects of its conduct in the course of the incidental proceedings set in
motion by the requests for the indication of provisional measures, had
acquiesced in the jurisdiction of the Court on the basis of Article IX of
the Genocide Convention. As the Court has already reached the conclu-
sion that it has jurisdiction on the basis of that provision, it need no
longer consider that question.

According to the second argument, as Yugoslavia, on 1 April 1993,
itself called for the indication of provisional measures some of which
were aimed at the preservation of rights not covered by the Genocide
Convention, it was said, in accordance with the doctrine of forum proro-
gatum (stricto sensu), to have given its consent to the exercise by the
Court, in the present case, of a wider jurisdiction than that provided for
in Article IX of the Convention. Given the nature of both the provisional
measures subsequently requested by Yugoslavia on 9 August 1993 —
which were aimed exclusively at the preservation of rights conferred by

29
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 621

the Genocide Convention — and the unequivocal declarations whereby
Yugoslavia consistently contended during the subsequent proceedings
that the Court lacked jurisdiction — whether on the basis of the Geno-
cide Convention or on any other basis — the Court finds that it must
confirm the provisional conclusion that it reached on that subject in its
Order of 13 September 1993 (I C.J. Reports 1993, pp. 341-342, para. 34).
The Court does not find that the Respondent has given in this case a
“voluntary and indisputable” consent (see Corfu Channel, Preliminary
Objection, Judgment, 1948, I.C.J. Reports 1947-1948, p. 27) which would
confer upon it a jurisdiction exceeding that which it has already acknow-
ledged to have been conferred upon it by Article IX of the Genocide
Convention.

*

41. It follows from the foregoing that the Court is unable to uphold
any of the additional bases of jurisdiction invoked by the Applicant and
that its only jurisdiction to entertain the case is on the basis of Article IX
of the Genocide Convention.

x * +

42. Having ruled on the objections raised by Yugoslavia with respect
to its jurisdiction, the Court will now proceed to consider the objections
of Yugoslavia that relate to the admissibility of the Application.

+

43. According to the first preliminary objection of Yugoslavia, the
Application is said to be inadmissible on the ground that it refers to
events that took place within the framework of a civil war, and there is
consequently no international dispute upon which the Court could make
a finding.

This objection is very close to the fifth objection which the Court has
already considered (paragraphs 27-33). In responding to the latter objec-
tion, the Court has in fact also answered this. Having noted that there
does indeed exist between the Parties a dispute falling within the provi-
sions of Article IX of the Genocide Convention — that is to say an inter-
national dispute —, the Court cannot find that the Application is inad-
missible on the sole ground that, in order to decide the dispute, it would
be impelled to take account of events that may have occurred in a context
of civil war. It follows that the first objection of Yugoslavia must be
rejected.

44. According to the second objection of Yugoslavia, the Application
is inadmissible because, as Mr. Alija Izetbegovié was not serving as Presi-
dent of the Republic — but only as President of the Presidency — at the

30
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 622

time at which he granted the authorization to initiate proceedings, that
authorization was granted in violation of certain rules of domestic law of
fundamental significance. Yugoslavia likewise contended that Mr. Izet-
begovié was not even acting legally at that time as President of the Presi-
dency.

The Court does not, in order to rule on that objection, have to con-
sider the provisions of domestic law which were invoked in the course of
the proceedings either in support of or in opposition to that objection.
According to international law, there is no doubt that every Head of
State is presumed to be able to act on behalf of the State in its interna-
tional relations (see for example the Vienna Convention on the Law of
Treaties, Art. 7, para. 2 (a)). As the Court found in its Order of 8 April
1993 C.J. Reports 1993, p. 11, para. 13), at the time of the filing of the
Application, Mr. Izetbegovié was recognized, in particular by the United
Nations, as the Head of State of Bosnia and Herzegovina. Moreover, his
status as Head of State continued subsequently to be recognized in many
international bodies and several international agreements — including
the Dayton-Paris Agreement — bear his signature. It follows that the
second preliminary objection of Yugoslavia must also be rejected.

Ed

45. The Court concludes from the foregoing that the Application filed
by Bosnia and Herzegovina on 20 March 1993 is admissible.

a Ÿ x

46. The Court has taken note of the withdrawal of the fourth prelimi-
nary objection of Yugoslavia and has rejected the other preliminary
objections. In conclusion, the Court emphasizes that in so doing it does
not consider that Yugoslavia has, in presenting those objections, abused
its rights to do so under Article 36, paragraph 6, of the Statute of the
Court and Article 79 of the Rules of Court. The Court rejects the request
made to that end by Bosnia and Herzegovina in its final submissions. The
Court must, in each case submitted to it, verify whether it has jurisdiction
to deal with the case, and, if necessary, whether the Application is admis-
sible, and such objections as are raised by the Respondent may be useful
to clarify the legal situation. As matters now stand, the preliminary
objections presented by Yugoslavia have served that purpose. Having
established its jurisdiction under Article IX of the Genocide Convention,
and having concluded that the Application is admissible, the Court may
now proceed to consider the merits of the case on that basis.

31
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 623

47. For these reasons,

THE CourT,

(1) Having taken note of the withdrawal of the fourth preliminary
objection raised by the Federal Republic of Yugoslavia,

Rejects
(a) by fourteen votes to one,
the first, second and third preliminary objections;

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda,
Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi,
Koroma, Vereshchetin, Ferrari Bravo, Parra-Aranguren; Judge ad
hoc Lauterpacht;

AGAINST: Judge ad hoc Kreéa;
(b) by eleven votes to four,
the fifth preliminary objection;

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges
Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Koroma,
Ferrari Bravo, Parra-Aranguren; Judge ad hoc Lauterpacht;

AGAINST: Judges Oda, Shi, Vereshchetin; Judge ad hoc Kreéa;
(c) by fourteen votes to one,
the sixth and seventh preliminary objections;

IN FAVouR: President Bedjaoui; Vice-President Schwebel; Judges Oda,
Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi,
Koroma, Vereshchetin, Ferrari Bravo, Parra-Aranguren; Judge ad
hoc Lauterpacht;

AGAINST: Judge ad hoc Kreéa;

(2) (a) by thirteen votes to two,

Finds that, on the basis of Article IX of the Convention on the Preven-
tion and Punishment of the Crime of Genocide, it has jurisdiction to
adjudicate upon the dispute;

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

Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koroma, Veresh-
chetin, Ferrari Bravo, Parra-Aranguren; Judge ad hoc Lauterpacht;

AGAINST: Judge Oda; Judge ad hoc Kreéa;

(b) By fourteen votes to one,

Dismisses the additional bases of jurisdiction invoked by the Republic
of Bosnia and Herzegovina;

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda,
Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi,
Koroma, Vereshchetin, Ferrari Bravo, Parra-Aranguren; Judge ad hoc
Kreéa ;

AGAINST: Judge ad hoc Lauterpacht;

32
APPLICATION OF GENOCIDE CONVENTION (JUDGMENT) 624

(3) By thirteen votes to two,
Finds that the Application filed by the Republic of Bosnia and Herze-
govina on 20 March 1993 is admissible.

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Guillaume,
Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koroma, Veresh-
chetin, Ferrari Bravo, Parra-Aranguren; Judge ad hoc Lauterpacht;

AGAINST: Judge Oda; Judge ad hoc Kreéa.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this eleventh day of July, one thousand
nine hundred and ninety-six, in three copies, one of which will be placed
in the archives of the Court and the others transmitted to the Govern-
ment of the Republic of Bosnia and Herzegovina and the Government of
the Federal Republic of Yugoslavia, respectively.

(Signed) Mohammed BEDJAOUI,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Judge ODA appends a declaration to the Judgment of the Court;
Judges Sui and VERESHCHETIN append a joint declaration to the Judg-
ment of the Court; Judge ad hoc LAUTERPACHT appends a declaration to
the Judgment of the Court.

Judges SHAHABUDDEEN, WEERAMANTRY and PARRA-ARANGUREN
append separate opinions to the Judgment of the Court.

Judge ad hoc KRECA appends a dissenting opinion to the Judgment of
the Court.

(Initialled) M.B.
(Initialled) E.V.O.

33