658

DISSENTING OPINION OF JUDGE KRECA

TABLE OF CONTENTS

Paragraphs
INTRODUCTION
First PRELIMINARY OBJECTION
Basic approach to the meaning of the first preliminary objection 1
Concept of the State ab intra 3-4
Application of the constituent element of the concept to Bosnia
and Herzegovina 5-26
Meaning of the Dayton Agreement in the establishment of
Bosnia and Herzegovina within the administrative bounda-
ries of that former Yugoslav federal unit 22-25
Recognition of Bosnia and Herzegovina 26
SECOND PRELIMINARY OBJECTION
Relevance of internal law in concreto 27

Was the President of the Presidency of Bosnia and Herzegovina
authorized to personally accredit a “General Agent with
extraordinary and plenipotentiary powers to the Court”? 28-29

Could Mr. Izetbegovié have performed the function of Presi-
dent of the Presidency ex constitutione after 20 December
1992? 3

Legal qualification of the matter 3

THiRD PRELIMINARY OBJECTION

Sedes materiae of the third preliminary objection 40
Relevance of international law to the birth of States (concept of
the State ab extra) 41-44

The legality of the proclamation of Bosnia and Herzegovina's
independence in the light of the internal law of the Socialist

Federal Republic of Yugoslavia 45-67
Relevance of the internal law of the Socialist Federal Repub-

lic of Yugoslavia 45-46
Constitutional concept of the Yugoslav State — constitu-

tional concept of Bosnia and Herzegovina 47-58
Promulgation of Bosnia and Herzegovina as a sovereign State 59-67

Legality of the proclamation of independence of Bosnia and

Herzegovina in the light of international law 68-81
Relation between the legality of the birth of a State and succes-

sion with respect to international treaties 82-89
Is Yugoslavia a party to the Genocide Convention? 90-97

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659 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

FirtH PRELIMINARY OBJECTION
Principal legal questions raised by Yugoslavia’s fifth prelimi-

nary objection 99
Qualification of the conflict in Bosnia and Herzegovina 100
Legal nature of the rights and obligations of States under the

Convention 101
Does the Genocide Convention contain the principle of univer- |

sal repression ? 102
Could a State be responsible for genocide? 103-104
The scope of Article IX of the Convention 105

SIXTH PRELIMINARY OBJECTION
General approach to the issue raised by Yugoslavia's sixth pre-

liminary objection 106-107
Legal] nature of the Genocide Convention 108
Institute of “automatic succession” — lex lata or lex ferenda? 109-111

Principles underlying the Convention as a part of the corpus

Juris cogentis 112-114
Notification of succession — whether it is capable per se of
expressing consent to be bound by the treaty? 115-118

Is the Dayton Agreement a basis for the application of the
Genocide Convention between Yugoslavia and Bosnia and
Herzegovina? 119

SEVENTH PRELIMINARY OBJECTION

Scope of Article IX of the Convention ratione temporis —
retroactivity or non-retroactivity ? 120

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660 APPLICATION OF GENOCIDE CONVENTION (DISS. OP, KRECA)
INTRODUCTION

In spite of my respect for the Court, I am compelled, with deep regret,
to avail myself of the right to express a dissenting opinion.

As each objection appears to be designed as a separate whole, I shall
treat the objections raised by Yugoslavia separately, in such a way as to
ensure that the conclusions drawn therefrom will serve as a proper basis
for my general conclusion concerning the jurisdiction of the Court and
the admissibility of Bosnia and Herzegovina’s claim.

FIRST PRELIMINARY OBJECTION

1. My approach to the meaning of the first preliminary objection is
essentially different from that of the Court. Prior to deciding whether in
concreto there is an international dispute within the terms of Article IX
of the Genocide Convention, it is necessary, in my opinion, to resolve the
dilemma of whether Bosnia and Herzegovina at the time when the Appli-
cation, as well as the Memorial, were submitted, and Bosnia and Herze-
govina as it exists today when this case is being heard, are actually one
and the same State. This question represents, in my opinion, a typical
example of what Judge Fitzmaurice in his separate opinion in the North-
ern Cameroons case! described as objections “which can and strictly
should be taken in advance of any question of competence”, for it opens
the way for the persona siandi in judicio of Bosnia and Herzegovina.

If they are the same State, then the issue raised by the preliminary
objection is in order. In the event that they are not, the situation is in my
opinion clear — there is no dispute concerning Article IX of the Conven-
tion — hence, placitum aliud personale.

In this regard, the issue raised by the first preliminary objection is not
an issue of admissibility stricto sensu, but a mixture, in its own right, of
admissibility and jurisdiction ratione personae.

2. The aforementioned question is directly linked with the concept of
an international dispute, the substance of which consists of two cumula-
tive elements — the material, and the formal. The generally accepted
definition of the dispute which the Court gave in the Mavrommatis Pal-
estine Concessions case* represents, in fact, only the material element of
the concept of “international dispute”. In order to qualify “a disagree-
ment over a point of law or fact, à conflict of legal views or of interests”,
which is evident in this specific case, as an “international dispute”,
another, formal element is indispensable, ï.e., that the parties in the “dis-
agreement or conflict” be States in the sense of international public law.

‘ECA Reports 1963, p. 105.
2 PLCS, Series A, No. 2, p. 11.

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661 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

Article IX of the Genocide Convention stipulates the competence of the
Court for the “disputes between the Parties”. The term “Parties”, as it
obviously results from Article XI of the Convention, means States, either
members or non-members of the United Nations.

The term “State” is not used either in abstracto in the Genocide Con-
vention, or elsewhere; it means a concrete entity which combines in its
personality the constituting elements of a State, determined by the inter-
national law. The pretention of an entity to represent a State, and even
recognition by other States, is not, in the eyes of the law, sufficient on its
own to make it a State within the meaning of international law.

From the very beginning of the proceedings before the Court, Yugo-
slavia challenged the statehood of Bosnia and Herzegovina. It is true
that, as the Court noted, Yugoslavia explicitly withdrew this preliminary
objection. However substantial arguments against the statehood of
Bosnia and Herzegovina at the relevant time were indicated by Yugoslavia
in support of its third objection. Exempli causa, Yugoslavia emphasized
that “[t]he central organs of the Government of this Republic controlled
a very small part of the territory of Bosnia and Herzegovina . . . In fact
four states existed in the territory of the former Socialist Republic of
Bosnia and Herzegovina . . .”?. The third objection of Yugoslavia may
in substance be reduced to the assertion that Bosnia and Herzegovina, in
the light of relevant legal rules, “has not established its independent state-
hood” within the administrative boundaries of that former federal unit.
This was an additional reason for the Court to take its stand on the
aforementioned question, not only in order to be able to take the decision
on the first preliminary objection of Yugoslavia, but also in order to
decide whether, and to what extent, it was competent in this case.

The response to the question whether Bosnia and Herzegovina, at the
relevant points in time, was constituted as a State within the administra-
tive boundaries of the federal unit of Bosnia and Herzegovina has, in my
opinion, a definite affect on the succession to the Genocide Convention.
To be bound by the Genocide Convention is only one of the forms of
“replacement of one State by another in the responsibility for interna-
tional relations of the territory”. The word “territory” refers to the space
in which the newly formed State exercises summa potestas, the space
within which it is constituted as a State in the sense of the relevant norms
of international law. It need hardly be said that there is no legal basis that
would enable one State to assume contractual obligations in the name of
another State or States, whether recognized or not. Bosnia and Herze-
govina explicitly claims — and, what is more, its entire Memorial is based
on that claim — that it is acting in the name of the whole of the former
federal unit of Bosnia and Herzegovina, i.e., that Bosnia and Herze-

3 CR 96/5, p. 35.

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662 APPLICATION OF GENOCIDE CONVENTION (DISS, OP, KRECA)

govina is the successor State in relation to the entire territory of that
former federal unit. Hence, in my opinion, it is essential that the Court,
in defining the factual and legal state of affairs in the territory of Bosnia
and Herzegovina at the relevant points in time, should precisely deter-
mine the scope of its jurisdiction.

Finally, in its scope, the answer to the question of the State identity of
Bosnia and Herzegovina is, in my view, also relevant with regard to the
Yugoslav claim stated in the fifth preliminary objection according to
which the case “in point is an international conflict between three sides in
which FRY was not taking part”.

Having in mind the foregoing, and even in the event that Yugoslavia
has not made such an assertion, the Court is not relieved of the obliga-
tion to do so. As established in the Judgment on the Appeal Relating to
the Jurisdiction of the ICAO Council:

“The Court must however always be satisfied that it has jurisdic-
tion, and must if necessary go into that matter proprio motu. The
real issue raised by the present case was whether, in the event of a
party’s failure to put forward a jurisdictional objection as a prelimi-
nary one, that party might not thereby be held ta have acquiesced in
the jurisdiction of the Court.”4

3. (The concept of the State ab intra.) The concept of the State ad intra
defines the State as an isolated, static phenomenon on the basis of ifs con-
stituent elements. The State so defined is usually understood to be an
entity comprised cumulatively of a permanent population, an established
territory and sovereign authority, Not infrequently, other elements of the
State are also cited but they do not merit the qualification of constituent
elements. They are by their nature either derived elements (exempli causa,
“capacity to enter into relations with other States”) or they reflect exclu- :
sivistic concepts which are ontologically in contradiction with the demo-
cratic nature of positive international! law (“degree of civilization such as
enables it to observe the principles of international law”, etc.).

As far as the nature of the cited constituent elements of the State are
concerned, they are legal facts. As legal facts they have two dimensions.

The qualification “constituent elements of the State” reflects the static,
phenomenological dimension of the concept of the State. It proceeds
from the State as a fact, 1e., phenomenclogicaliy, and focuses on the
basic constituent elements of its static being.

In the case of the emergence of new States, the constituent elements of
the concept of the State lose their phenomenological characteristics —
since in that case, there is no State as an entity — and are transformed
into prerequisites for the emergence of a State. In other words, for a cer-

“ECL. Reports 1972, p. 52.

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663 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

tain entity to become a State it must cumulatively fulfil conditions which
are, in the material sense, identical with the constituent elements of a
State in the static, phenomenological sense.

4. What is the mutual relationship among the basic constituent ele-
ments of the State? From the formal standpoint, the question may
appear to be superfluous, as by its very wording it suggests the only pos-
sible answer and that is that they are elements that function cumulatively.
However, the question does have a logic of its own if one views it as relat-
ing to the value relationship among the cumulative elements or, in other
words, if one views, within the concept of the State comprised of the
three cited elements, their mutual relationship ab intra.

With the reservation that the value relationship among the cited ele-
ments is to some extent determined in advance by the cumulative nature
of the elements, some conclusions can nonetheless be drawn. First, there
is no doubt that a certain value relationship, if not even a hierarchy, does
exist. Suffice it to note that territory and population are immanent to
some non-State entities as well. It is also beyond doubt that the element
of sovereignty is peculiar to the State alone. Thirdly — and this is the
differentia specifica between States and other, non-State entities — sov-
ereignty is in a sense a qualifying condition, a condition of special value,
for sovereign authority is not only one of the constituent elements of the
State, but it is at the same time an element which gives concrete substance
to the rather abstract and broad concepts of “territory” and “population”
and, in so doing, links them to the concept of the State in the sense of
international law. Evidently, for a “territory” to be “State territory” it
must be subject to sovereign authority. Without it a “territory” is not a
State territory but it is something else (res nullius, trusteeship territory,
res communis omnium, common heritage of mankind and the like).

5. Were the constituent elements of a State in existence in the case of
Bosnia and Herzegovina at the relevant point in time?

6. There is no doubt that Bosnia and Herzegovina had a “permanent
population” if we use the term in the technical sense, Le., in the sense of
a group of individuals who were linked to the relevant territory by their
way of life.

However, within the system of positive international law, the term
“permanent population” acquires a different meaning. In a system that
recognizes the fundamental significance of the norms of equal rights and
self-determination of peoples (see paras. 67-68, 71 below), the concept of
a “permanent population”, at least when referring to a territory inhabited
by several peoples, cannot have only the cited technical meaning. In that
case, if one is to be able to speak of a “permanent population” in view of
the norm on equal rights and self-determination of peoples, there has to
be a minimum of consensus among the peoples regarding the conditions
of their life together.

In Bosnia and Herzegovina that minimum did not exist. The Referen-
dum of 29 February and 1 March 1992, in relation to the national plebi-

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664 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA}

scite of the Serb people in Bosnia and Herzegovina of 9-10 November
1991, showed that the “permanent population” of the federal unit of
Bosnia and Herzegovina was divided into the Muslim-Croat peoples on the
one hand and the Serb people on the other. The unification of the com-
munes with a majority Croat population into the Croatian Community
of Herceg-Bosna on 19 November 1991 and especially the formation
of the independent State community of Herceg-Bosna on 4 July 1992,
symbolized the complete divergence of options among the three peoples
of Bosnia and Herzegovina. In an entity in which summa potestas is a
constituent element of special importance and bearing in mind how it
was distributed in Bosnia and Herzegovina, there are strong grounds to
claim that in Bosnia and Herzegovina there were in fact three “perma-
nent populations”.

7. The use of the term “defined territory” implies defined and settled
boundaries in accordance with the rules of positive international law. As
a condition for the existence of a State, “defined and settled boundaries”
do not have absolute value — in practice a State has been considered to
have been constituted even when all its boundaries were not defined.
However, it is essential that “there is a consistent band of territory which
is undeniably controlied by the Government of the alleged State”*, The
rule is that the boundaries be established by international treaty or,
exceptionally, on the basis of the principle of effectiveness.

The question whether Bosnia and Herzegovina had “defined and settled
boundaries” has a two-fold meaning: material and in terms of time.

8. In the material sense, the relevant question is whether one can
equate administrative-territorial boundaries within a composite State and
frontiers between States in the sense of international law?

The answer can only be negative both from the standpoint of the
internal law of the Socialist Federal Republic of Yugoslavia (SFRY)
and from the standpoint of international law.

As far as the internal law of SFRY is concerned, suffice it to note the
provisions of Article 5 (1) of the SFRY Constitution which stipulated
expressis verbis that the “territory of SFRY is unified” and that it is
“composed of the territories of the Socialist Republics”. That the
“boundaries” between the federal units were merely lines of administra-
tive division is also evidenced by the fact that they were not directly
established by any legal act. They were determined indirectly, via the ter-
ritories of the communes which comprised a certain federal unit so that
they were, in 4 sense, the aggregation of communal borders. Thus, the
Constitution of Bosnia and Herzegovina stipulated in Article 5: “[t]he
territory of SR Bosnia-Herzegovina is composed of the areas of the com-
munes”.

5M. N. Shaw, International Law, 1986, p. 127.

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665 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

The administrative nature of the boundaries of the federal units in
SFRY was also recognized by the Arbitration Commission of the Con-
ference on Yugoslavia whose opinions are used by the Applicant as its
main argument. In Opinion No. 3, it described the boundaries between
the Yugoslav federal units as “demarcation lines” ®.

In the light of international law, the terms “frontier” or “State border
lines” are reserved for States with international personality. More par-
ticularly, whereas the SFRY was a State in terms of public international
law and of the United Nations Charter, the republics were the compo-
nent parts of Yugoslavia and, in the context of the legal nature of a fed-
eration, they were the component parts of a single State in foro externe
and of a composite State in foro interne since the federation is distin-
guished by the parallel existence of a federal and a republican govern-
ment organization in a manner and on a scale established under the
Constitution and the law.

9. From the standpoint of time, the question is posed differently —
were the administrative-territorial boundaries of Bosmia and Herzegovina
transformed into borders in the sense of international law, tractu fem-
poris, from the moment the “sovereignty and independence” of Bosnia
and Herzegovina was proclaimed?

The possibility of such a transformation exists in principle. “Non-
borders” can become “borders” in the.same way in which “borders” are
constituted, that is by agreement or, exceptionally, on the basis of the
principle of effectiveness.

Examples of such a transformation are the cases of the Soviet Repub-
lics and the Czech Republic and Slovakia. In the Yugoslav case, such a
transformation implied two things: first, that a decision on the dissolu-
tion of SFRY or a state-legal restructuring had been taken by the highest
organ of authority through an appropriate procedure and, second, that
in either case, the establishment of Bosnia and Herzegovina as an inde-
pendent State had been envisaged. The relevant facts imposed such a
solution. First, Bosnia and Herzegovina was not an authentic constituent
of the Yugoslav State. Such a status was enjoyed, among others, by the
peoples of Bosnia and Herzegovina (paras. 48-60 below). Further, being
a derivative entity of the constitutional law of Yugoslavia without the
right to secession, Bosnia and Herzegovina’s existence depended on the
existence of Yugoslavia. Consequenily, even under the hypothesis that the
dissolution of SFRY had taken place, this would not in itself signify the
transformation of Bosnia and Herzegovina into an independent State
within its administrative boundaries. Legally, the hypothetical dissolution
would necessarily have had to result in the political and legal reconstruc-

® The Conference for Peace in Yugoslavia, Arbitration Commission, Opinion No. 3,
para. 2 (3).

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666 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

tion of the space of Bosnia and Herzegovina on the basis of the norm on
equal rights and self-determination of peoples.

Bosnia and Herzegovina did not accept the “Concept for the future
organization of the State”, proposed by a working group comprising rep-
resentatives of all the Republics, as a basis for further talks involving the
republican presidents and the State Presidency, which, inter alia, included
a “Proposed Procedure for dissociation from Yugoslavia” on the basis of
the self-determination of peoples. This part of the “Concept” which was
drawn up to deal with the constitutional crisis in SFRY in a peaceful and
democratic manner, respecting the relevant norms of international law
and the internal law of SFRY, envisaged a corresponding solution for the
borders as well. On the basis of the draft amendment to the SFR Y Con-
stitution, the “Concept” stipulated the obligation of the Federa] Govern-
ment to “ec. prepare proposals for the territorial demarcation and the
frontiers of the future states and other issues of importance for formu-
lating the enactment on withdrawal”?.

What remains therefore, is the principle of effectiveness as a possible
basis for the transformation of the administrative-territorial boundaries
of the federal unit of Bosnia and Herzegovina into international borders.
As this principle implies the effective, actual exercise of sovereign author-
ity, and considering the scope of that authority of the central government
in Sarajevo (see para. 18 below), it is beyond doubt that the mentioned
transformation of boundaries on the basis of the principle of effective-
ness did not occur.

10. The Arbitration Commission of the Conference on Yugoslavia
whose opinion Bosnia and Herzegovina uses as argument, states with
respect to the relevant question: |

“lelxcept where otherwise agreed, the former boundaries become
borders protected by international law. This conclusion follows from
the principle of respect for the territorial status quo and, in particu-
Jar, from the principle of uti possidetis . . . [which] though mitially
applied in settling decolonization issues in America and Africa, is
today recognized as a general principle, as stated by the Interna-
tional Court of Justice in its Judgment of 22 December 1986 in the
case between Burkina Faso and Mali (Frontier Dispute, (1986) I CJ.
Reports 554 at 565):

‘Nevertheless the principle is not a special rule which pertains

* Focus, Special Issue, January 1992, p. 33.

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667 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

solely to one specific system of international law. It is a general
principle, which is logically connected. with the phenomenon of
the obtaining of mdependence, wherever it occurs. Its obvious
purpose is to prevent the independence and stability of the new
States being endangered by fratricidal struggles.’’”’*

Such reasoning is not legally tenabie.

First, the phrase “territorial status quo” in this specific case is a can-
traditio in adiecto. It does have a logical and legal sense in the interna-
tional order, in the mutual relations between States as persons in inter-
national law, The territorial status quo in the United Nations system is a
terminological substitute for the principle of respecting a State’s territo-
rial integrity, and strictly speaking, it refers to States in the sense of inter-
national law and not to the integral parts of a federation. 7x foro interno,
the “territorial status quo” is of qualified significance for a State’s own
territorial organization as a matter which falls within the domain of
strictly internal jurisdiction (domaine réservé}. So, since the creation of
Yugoslavia in 1918, the internal administrative territorial boundaries
have been drawn three times: first in 1918 within the Kingdom of the
Serbs, Croats and Slovenes with a division of the country into 32 regions;
next in 1929, in the Kingdom of Yugoslavia, with the organization of
nine Banovinas as administrative units; and then in the period between
1943 and the early post-war years during the formation of Federal Yugo-
slavia and its six republics. Consequently, the expression “territorial
status quo” in municipal law can only be considered as a kind of legal
metaphar for a rule of national law which would prohibit changing admin-
istrative boundaries.

Second, reference to the Judgment of the Internationa] Court of Justice
in the Frontier Dispute case cannot have effect in this concrete case not
only because the relevant part of the Judgment is not cited in extenso®, but
also because the meaning of the Judgment as a whole differs significantly.

Outside the colonial context to which the reasoning of the Court applies
in the Frontier Dispute case, the principle of uti possidetis in positive inter-
national law can only have the meaning which corresponds to the original
meaning of that principle as expressed in the formula “uti possidetis, ita
posideatur”, 1.e., the meaning of the principle of effectiveness.

11. With regard to the qualification of the borders of Bosnia and
Herzegovina, it is interesting to examine the “Framework Agreement for
the Federation” concluded on 2 March 1994 in Washington. Chapter I
(Establishment) of the “Framework Agreement for the Federation” stipu-
lates, inter alia, that:

8 The Conference for Peace in Yugoslavia, Arbitration Commission, Opinion No. 3,
para. 2 (4).

? The part of the Judgment which the Commission has cited ends with the words: “pro-
voked by the challenging of frontiers following the withdrawal of the administering power"
(para. 20; emphasis added). See paragraphs 19, 20, 23 of the Frontier Dispute Judgment,
LCS. Reports 1986, pp. 364-565, 566,

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668 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

“Bosniacs and Croats, as constituent peoples (along with others)
and citizens of the Republic of Bosnia and Herzegovina, in the exer-
cise of their sovereign rights, transform the internal structure of the
territories with a majority of Bosniac and Croat population in the
Republic of Bosnia and Herzegovina into a Federation, which is
composed of federal units with equal rights and responsibilities.”

Though the “Framework Agreement” makes no mention of frontiers,
there is no doubt that its contents, in the context of relevant norms of
international law, has definite implications with respect to the borders of
Bosnia and Herzegovina.

The “Framework Agreement” represents a tacit renunciation of the
concept of a unified Bosnia and Herzegovina and thereby of the admin-
istrative boundaries of Bosnia and Herzegovina as international fron-
tiers. In particular, it is clear that by this Agreement, the political repre-
sentatives of the Croat and Muslim peoples in Bosnia and Herzegovina
agreed to constitute a federal State which would have confederal links
with Croatia. The Constitution of the Federation was undoubtedly
derived from the norm of equal rights and self-determination of the Mus-
lim and Croat peoples in Bosnia and Herzegovina even though this norm
is not explicitly mentioned in the Agreement. Such a conclusion is war-
ranted by the qualification that the Federation was constituted on the
basis of “the exercise of sovereign rights . . . [of] Bosniacs and Croats as
constituent peoples”. True, the Agreement proceeds from the “sover-
eignty and territorial integrity of the Republic of Bosnia and Herze-
govina” but this syntagm in the context of the relevant facts has more of
a declarative than a material significance. The “Framework Agreement”
defines the territory of Bosnia and Herzegovina as “territories with a
majority of Bosniac and Croat populations in the Republic of Bosnia
and Herzegovina”. In relation to the parts of Bosnia and Herzegovina
inhabited by a majority Serb population, the “Framework Agreement” says:

“ft]he decisions on the constitutional status of the territories of the
Republic of Bosnia and Herzegovina with a majority of Serbian
population shall be made in the course of negotiations toward a
peaceful settlement and at the International Conference on the
Former Yugoslavia”.

It is therefore beyond question that:

fa) the “Framework Agreement” envisages the constitution of a Mus-
lim-Croat Federation on the territory of Bosnia and Herzegovina;

(b) those territories of Bosnia and Herzegovina that are inhabited by a
majority Serb people are left out of the territories of the Federation;

fc) representatives of the Muslim-Croat Federation are acting and are
accepted in international affairs, including international organiza-
tions, as representatives of an autonomous, independent State;

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669

(d)

APPLICATION OF GENOCIDE CONVENTION (DISS. OP, KRECA)

the “Framework Agreement” links the decision on the status of
“territories of Bosnia and Herzegovina with a majority Serb popula-
tion” to the “course of negotiations toward a peaceful settlement
and at the International Conference on the Former Yugoslavia”. In
view of the rules of general international law on the decision-making
procedure which, it goes without saying, apply also to the International
Conference on the Former Yugoslavia, the conclusion that imposes
itself is that the material-legal meaning of the “Framework Agree-
ment” with respect to the borders of Bosnia and Herzegovina is that
the Federation, constituted as a result of the will of two out of the
three constituent peoples of Bosnia and Herzegovina, renounced the
administrative borders of Bosnia and Herzegovina as State borders
of the Federation leaving open the possibility of those borders being
changed on the basis of decisions taken “in the course of negotia-
tions toward a peaceful settlement and at the International Confer-
ence on the Former Yugoslavia”.

12. It was the Dayton Agreement which transformed the administra-

tive

Boundaries of Bosnia and Herzegovina into international borders,

Article 10 of the Agreement stipulates that “[t]he Federal Republic of
Yugoslavia and the Republic of Bosnia and Herzegovina recognize each
other as sovereign independent States within their international borders”.

13, Regardless of theoretical definitions of sovereignty and the distine-
tions based on them regarding its manifestations, it is evident that the
sovereignty of States implies:

()

ii)

suprema potestas — “by which is meant that the State has over it no
other authority than that of international law” 6 The equals-mark
that is being placed between suprema potestas and independence"! is
indicative of a substantial fact — that the entity purporting to be a
State in the sense of international public law takes vital political deci-
sions autonomously and independently of third States. A State in the
international legal sense cannot and must not comply with alien
political decisions regardless of whether such compliance has a
formal ar informal basis. Therein lies the meaning of the qualifica-
tion according to which “the first condition for statehood is that
there must exist a government actually independent of any other
State” !2,

summa potestas — in the sense of the exercise of real, factual author-
ity on the territory of the State, The intention to establish genuine
authority is no more than a political project, an intellectual construc-
tion that has not materialized. That intention has to be realized and
this implies, inter alia, the existence of an institutional network suit-

10 Customs Régime between Germany and Austria, Advisory Opinion, 1931, P.CLI,
Series A/B, No. 41, separate opinion of Judge Anzilowi, p. 57.

" Island of Las Palmas case, Reports of International Arbitral Awards, Vol. Il, P. 838.

12 H. Lautérpacht, Recognition in International Law, 1949, p. 26.

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670 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

able for and capable of implementing its decisions throughout the
State territory. Hence, summa potestas is a mere figure of speech
“until a stable political organisation has been created, and until pub-
lie authorities become strong enough to assert themselves throughout
the territory of the State” 13,

These two segments of sovereignty constitute an organic whole. As for
their mutual relationship, suuna potestas has the character of a prior
assumption as, for an entity to constitute an independent State, it is
essential that it should have come into existence as a State — from the
theoretical standpoint suprema patestas is the qualifying condition of
existence of an independent State, the differentia specifica between inde-
pendent and dependent States.

14. The question whether Bosnia and Herzegovina had summa potes-
tas within the administrative boundaries of Bosnia and Herzegovina
must be linked to a certain time frame. For the purpose of this specific
question, two points in time are relevant:

{a} the moment of the proclamation of a “sovereign and independent
Bosnia”; and,

fb} the moment at which proceedings were brought against the Federal
Republic of Yugoslavia before the International Court of Justice.

Did the Applicant at these relevant points in time have a “stable poli-
tical organization” within the administrative boundaries of Bosnia and
Herzegovina on the one hand and were its “public authorities strong
enough to assert themselves throughout the territory” of Bosnia and
Herzegovina on the other?

15. According to the assertions of the Applicant, Bosnia and Herze-
govina was proclaimed a “sovereign and independent Bosnia” on 6 March
1992 when the results of the referendum held on 29 February and
1 March 1992 were officially promulgated. /¢ is bevend dispute that, at
that point in time, the Applicant did not have a “stable political organi-
zation” throughout the territory of Bosnia and Herzegovina nor were
its “public authorities strong enough to assert themselves throughoui the
territory” ef Bosnia and Herzegovina. More particularly, prior to the
proclamation of “sovereign and independent Bosnia” within the adminis-
trative boundaries of Bosnia and Herzegovina two de facto States — the
Republic of Srpska and the Croatian Community of Herceg-Bosna —
had beer formed.

The Croatian Community of Herceg-Bosna was founded on 9 Novem-
ber 1991 (and it was proclaimed an independent State community under
the same name on 4 July 1992), whereas the Republic of the Serb people
of Bosnia and Herzegovina was formed by a Declaration of the Assembly

"4 Legal Aspects of the Aaland Island Question, Report of the International Committee
of Jurists, Official Journal of the League of Nations, Special Supp. No. 3, p. 3 (1920).

79

671 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

of the Serb people issued in January 1992 (it changed its name to the
Republic of Srpska on 7 April of the same year !#).

The common denominator of both units is that they represent the insti-
tutionalization of authority in regions in which, in the main, the parties
of the Serb and Croatian peoples of Bosnia and Herzegovina won a
majority at the first multi-party elections held on 18 and 19 November
1990'° and under the direct influence of the substantive differences that
had emerged among the national parties of the three constituent peoples
with respect to the future status of the federal unit of Bosnia and Herze-
govina. Those differences appeared in a clear and unambiguous form
already at the time of the outbreak of the constitutional crisis in SFRY
with the proclamation of the “sovereignty and independence” of the fed-
eral units of Slovenia and Croatia, and culminated when the “Platform
on the Status of Bosnia and Herzegovina and the Future Set-Up of
the Yugoslav Community” was adopted by the then rump Assembly of
Bosnia and Herzegovina on 14 October 1991.

The “Platform on the Status of Bosnia and Herzegovina” inter alia
qualified Bosnia and Herzegovina as a “democratic sovereign State”
which would advocate the adoption of a “Convention on the mutual
recognition of the sovereignty, inviolability and unchangeability of the
borders of the present-day republics”,

The practical effect of the “Platform on the Status” was the dissolution
of the state-legal body of the federal unit of Bosnia and Herzegovina,
hence the powers vested in its organs according to the federal Constitu-
tion and the Constitution of Bosnia and Herzegovina via facti were itself
taken over by the three ethnic communities.

16. (Republika Srpska.) The Assembly of the Serb people of Bosnia
and Herzegovina at its session held on 9 January 1992 adopted a
“Declaration on the Proclamation of the Republic of the Serb People of
Bosnia and Herzegovina” in the areas

“of the Serb autonomous regions and areas and other ethnic Serb
communities in Bosnia-Herzegovina, including the areas where the
Serb people has remained a minority as a result of genocide against
it during World War Two and further to the outcome of the plebi-
scite held on November 9 and 10, 1991 at which.the Serb people
voted to remain in the common State of Yugoslavia” !’,

'4 Official Gazette of the Socialist Republic of Bosnia and “Herzegovina, No. 42 of
19 December 1991.

15 Jhid.

16 Jbid, No. 32 of 16 October 1991.4.

17 Official Gazette of the Serb People of Bosnia and Herzegovina, No. 2/92.

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672 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

The Declaration stipulated, inter afia, that:

“[plending the election and constitution of new organs and institu-
tions to be established under the Constitution of the Republic, the
functions of the State organs in the Republic shall be discharged by
the present Assembly of the Serb people in Bosnia-Herzegovina and
by the Council of Ministers” (Art. VI);

and that

“[t]he federal regulations, along with those of the former Bosnia-
Herzegovina, except those found by the Serb People’s Assembly to
be contrary to the Federa] Constitution, shall remain in force pend-
ing the promulgation of the Republic’s Constitution, its laws and
other regulations” (Art. VID).

The Assembly of the Serb People in Bosnia and Herzegovina, at its
session held on 29 February 1992, adopted the “Constitution of the
Republic of Srpska” on the basis of the

“inalienable and intransferable natural right of the Serb people to
self-determination, self-organization and association, on the basis of
which it may freely determine its political status and ensure eco-
nomic, social and cultural development”.

The formal acts were accompanied by the actual assumption of author-
ity in the territories of the communes.

The armed forces of the Republic of Srpska was at first composed of
territorial defence units in the communes and of other armed formations.
The Army of the Republic of Srpska was formed on 13 May 199218.

The Army of the Republic of Srpska, from its formation, operated
autonomously as the military force of the proclaimed State. Clear
confirmation of this is to be found in the above-mentioned report of the
Secretary-General:

“The Bosnia and Herzegovina Presidency had initially been reluc-
tant to engage in talks .. . with the leadership of the ‘Serbian Repub-
he of Bosnia and Herzegovina’ and insisted upon direct talks with
the Belgrade authorities instead. A senior Yugoslav Peoples’ Army
(JNA) representative from Belgrade, General Nedeljko Boskovié,

‘has conducted discussions with the Bosnia and Herzegovina Presi-
dency, but it has become clear that his word is not binding on the
commander of the army of the ‘Serb Republic of Bosnia and Herze-
govina’, General Mladié — it is also clear that the emergence of Gen-
eral Mladié and the forces under his command as independent actors

18 Report of the Secretary-General pursuant to paragraph 4 of the Security Council
resolution 752/1992, doc. 8/24049, 30 May 1992, para. 2.

81

673 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

beyond the control of JNA greatly complicates the issues raised in
paragraph 4 of the Security Council Resolution 752 (1992),” 1?

In addition, Republic Srpska had its own legislative, executive and judi-
cial organs. .

17. (Croatian community of Herceg-Bosna.} Herceg-Bosna, the State
of the Croatian people in Bosnia and Herzegovina, was proclaimed on
4 July 1992. With the exception of certain territorial changes, this act
only formalized the situation created in November 1991 when the
Croatian Community of Herceg-Bosna was created. From the very
beginning, this functioned de facta as a State.

Herceg-Bosna had its own armed force. The Decree on the armed
forces of the Croatian Community of Herceg-Bosna stipulated that the
armed forces constitute a unified whole comprising the “regular and
reserve forces” ?°. Confirmation of the existence of the autonomous armed
forces of Herceg-Bosna is to be found also in the “Report of the Secre-
tary-General pursuant to paragraph 4 of Security Council resolution 752
(1992)” (see para. 18 below}. The Government in Sarajevo did not deny
this fact either. A letter addressed by Hadzo Efendié as “Acting Prime
Minister” to C. Vance and Lord Owen, the Co-Chairmen of the Confer-
ence on Former Yugoslavia on 29 April 1993, says inter alia:

“With the purpose of realizing the agreement from item 5 of the
Common Statement made by Messrs Alija Izetbegovié and Mato
Boban at the meeting held in Zagreb on April 24, 1993 .. . we would
like to ask you to undertake activities aimed at establishing a sepa-
rate, independent international commission for establishing the facts
on violations of international humanitarian law and war crimes
committed over the civihan population during the renewed conflicts
between the Army of the R B-H and HVO in Central Bosnia and
some other parts of the Republic of Bosnia and Herzegovina.” ?

In addition to its armed forces, Herceg-Bosna had its own éxecutive,
legislative and judicial organs.

Supreme authority was vested in the Presidency, composed of repre-
sentatives of the Croat people in Bosnia and Herzegovina, headed by the
President of the Presidency. The Croatian representatives withdrew from
the joint organs of the Applicant and moved to Mostar which was pro

18 Doc. 5/2409, 30 May 1992, paras. 8-9 (emphasis added).

20 Borba, Belgrade, 6 July 1992.

2 Letter dated 29 April 1993 from Acting Prime Minister Hadzo Efendié addressed to
“Cyrus Vance, Lord David Owen, Co-chairmen of The Conference'on Former Yugo-
slavia”. .

§2

674 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

claimed the capital of the State. Herceg-Bosna appropriated all the
matériel of JNA as well as all the property of the organs and bodies of
the former federation. Public, State enterprises were formed in the sectors
of agriculture, forestry and mining, the Post, Telegram and Telephone
Service (PTT) and publishing #.

It was determined that the Law on Regular Courts would be applied
even under conditions of war, and military tribunals were set up in the
zones of military operations, as autonomous departments of the main
military tribunals.

18. In my opinion there can be no doubt that at the moment of the
proclamation of “sovereign and independent Bosnia” the authorities in
Sarajevo which had been recognized by the international community as
the authorities of the whole of Bosnia and Herzegovina did not by a long
way exercise summa potestas on the territories within the administrative
demarcation lines of the federal unit of Bosnia and Herzegovina.

A “[s]table political organization of sovereign and independent
Bosnia” simply did not exist at either of the relevant points in time. What
is more, even before the proclamation of Basnia and Herzegovina as a
“sovereign and independent” State, the unified administrative, judicial and
legislative apparatus of the federal unit of Bosnia and Herzegovina had
ceased to function. It follows from the relevant facts that the proclama-
tion af the Republic of the Serb People and of the Croatian Community of
Herceg-Bosna merely formalized the dissolution of the state apparatus of
the federal unit of Bosnia and Herzegovina and its replacement by the
appropriate structures of the three ethnic communities. That process
embraced both the civilian and military structures of authority. This is
evidenced also in the Report of the Secretary-General pursuant to para-
graph 4 of Security Council resolution 752 (1992). In paragraphs 5 and
10 the Report refers to the existence of “the army of the so-called ‘Ser-
bian Republic of Bosnia and Herzegovina’”, and the “territorial Defence
of Bosnia and Herzegovina which is under the political control of the
Presidency of that Republic” and “local [Croat] Territorial Defence”.
The “{s|table political organization of sovereign and independent Bos-
nia”, was not created even after the proclamation of independence so
that it is obvious that the organs of the Applicant were not “strong
enough to assert themselves throughout the territory” of Bosnia and
Herzegovina.

“This obvious fact is confirmed also in the “Report on the situation of
human rights in the territory of the former Yugoslavia submitted by
Mr. T. Mazowiecki, Special Rapporteur of the Commission on Human

2 Letter from the President of the Government of the Republic of Bosnia-Herzegovina
to the Secretary-Generail of the United Nations, 13 May 1993.
23 Borba, Belgrade, 6 July 1992.

83

675 APPLICATION OF GENOCIDE CONVENTION (DISS, OP. KRECA)

Rights, pursuant to paragraph 14 of Commission Resolution 1992/S-1/1
of August 1992”. The “Report” states, inter alfa, that

“[mJuch of the territory of Bosnia and Herzegovina is not under the
control of the recognized Government. Most observers agree that
the Serbian Republic of Bosnia and Herzegovina, an unrecognized
government proclaimed when Bosnia and Herzegovina declared its
independence from Yugoslavia against the wishes of the Serbian
population, controls between 50 and 70 per cent of the territory . ..
It [Serbian Republic of Bosnia and Herzegovina’] is comprised of
four ‘autonomous regions’, one of which, Banja Luka, was visited
by the Special Rapporteur.

According to the information received, the law applied within the
‘Serbian Republic of Bosnia and Herzegovina’ is the law of the Fed-
eral Republic of Yugoslavia, as modified by the local legislatures.” 24

All that needs to be added ts that the “Serbian Republic of Bosnia and
Herzegovina” was not proclaimed “when Bosnia and Herzegovina declared
its independence” since the “Serbian Republic of Bosnia and Herze-
govina” was proclaimed on 9 January 1992 while the rump Parliament of
Bosnia and Herzegovina prociaimed the independence of Bosnia and
Herzegovina on 6 March of the same year.

The “Report of the Secretary-General pursuant to paragraph 4 of
Security Council resolution 752 (1992)” states that:

“International observers do not, however, doubt that portions of
Bosnia and Herzegovina are under the control of Croatian military
units, whether belonging to the locai Territorial Defence, to para-
military groups or to the Croatian Army.*#

This in fact refers to the territories of the communes comprising the
Croatian Community of Herceg-Bosna formed on 9 November 1991, that
is before the proclamation of “sovereign and independent Bosnia”.

The territory within which the organs of the Applicant exercised real,
effective authority comprised in fact:

“Three separate regions are under the control of the Government
of Bosnia and Herzegovina, namely, part of the capital, Sarajevo;
the region known as Bihac, adjacent to the border with Croatia in
North-West Bosnia, and parts of central Bosnia and Herzegovina.” *®

4 Doc. EACN.4/1992/8-1/9, 9.18 (emphasis added).

25 Doc. $/24049, p. 4, para. 10.

26 Report on the human rights in the territory of the former Yugoslavia, submitted by
Mr. T. Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant
to paragraph 14 of Commission Resolution 1992/S-1/1 of 14 August 1992, doc. EACN.4/
1992/5-1/9, p. 18.

84

676 APPLICATION OF GENOCIDE CONVENTION {DISS. OP. KRECA)

19. The timing of the constitution of the Republic of Srpska and of
Herceg-Bosna, on the one hand, and of the Applicant State, on the other,
paints to the conclusion that the constitution of the Republic of Srpska
and of Herceg-Bosna cannot be qualified as armed rebellion against the
central authority, as there simply was no central authority at the time, but
only as the emergence of several Staies in the circumstance of the consti-
tutional and State crisis of the Yugoslav federation.

The assumed existence of a Muslim-Croat central authority in Bosnia
and Herzegovina had no factual grounds from the very beginning of the
crisis as convincingly evidenced by the war that broke out between Croat
and Muslim forces in 1993. In a letter addressed to the Chairman of the
European Affairs Subcommittee of the Senate Foreign Affairs Commit-
tee of the United States of America, on 24 February 1993, the Prime
Minister of Bosnia and Herzegovina, the Croatian representative in the
joint Croat-Muslim Government, M. Akmadzic, described Mr. Izetbe-
govié and Mr. Silajdzié “only as one Muslim member of the Presidency”
(see para. 37 below). Indicative of the situation in the joint Croat-Muslim
Government in Bosnia and Herzegovina is the letter of the Prime Minis-
ter addressed to the Secretary-General of the United Nations on 7 May
1993 which says, inter alia:

“On 7 May 1993 I was informed by public media that Mr. Hadzo
Efendié sent Your Excellency a letter in the capacity of Acting Prime
Minister.

Therefore, | would like to inform Your Excellency that Mr. Hadzo
Efendié was hot elected as a member of the Gavernmeni, nor as Vice-
President of the Government and especially was not elected as Act-
ing President of the Government of the Republic of Bosnia-Herze-
govina. Mr. Hadzo Efendié was not elected based upon my proposal.
This is the only legal course of election that is in accordance with the
valid acts and regulations of the Republic of Bosnia-Herzegovina.

T am informing Your Excellency that no individual can sign docu-
ments of the Government of the Republic of Bosnia-Herzegovina in
the capacity of the President of the Government other than myself.
As a result of this, 7 request Your Excellency not to consider any
document of the President of the Government of the Republic of
Bosnia-Herzegovina as valid unless it ts signed hy myself.

My office is temporarily in Mostar where I am performing my
duties as President of the Government of the Republic of Bosnia-
Herzegovina.” ?

Therefore, in the territory of Bosnia and Herzegovina in the relevant

period the following institutions were functioning:

2? Letter dated 7 May 1993 addressed to “United Nations Sccretary-General, His
Excellency Dr. Boutros-Boutros Ghali from Mile Akmadzié, President of the Govern-
ment of the Republic of Bosnia-Herzegovina” (emphasis added).

85

677 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

fa} the State organs of the so-called central authorities (Croat-Muslim
alliance), which formally collapsed with the outbreak of the armed
conflict between the Muslims and the Croats and was transformed
into Muslim authority. The latter then split up in September 1993
into the Government in Sarajevo and the authorities of the Autono-
mous Province of Western Bosnia;

{b} the State organs of the Republic of Srpska;

(c) the State organs of Herceg-Bosna; and

(d) as of March 1994, also the State organs of the newly formed Federa-
tion which, however, functioned only on paper.

20. Mr. Jadranko Prlié, Prime Minister of the Croatia Republic of
Herceg-Bosna and Hercegovina, testified to the fact that the promotion
of Croat-Muslim Federation in Bosnia and Herzegovina was a mere
proclamation. In an interview given to the Slobedna Daimacija daily
newspaper of 18 December 1995, answering the question about the func-
tions of the Minister of Defence in the Government of the Federation
and the Republic, Mr. Prlié, who initialled the Dayton Treaties on behalf
of the Croat-Muslim Federation, replied as follows:

“it should be said that all the time two states and two armies were in
existence. But, there was a certain form of coordination and a result
was achieved, primarily thanks to the support of the Croat army and
Croat state” #. ;

When asked until when Herceg-Bosna would function he replied as fol-
lows:

“No deadline could be set. That will depend on the overall pro-
cess. When all the rights of the Croat people are ensured and then
the Federation becomes capable of taking over those functions that
Herceg-Bosna has, then Herceg-Bosna will be reshaped, probably
into a political community.” ?°

The words of the Croat President Tudjman, one of the participants in the
Dayton Conference, imply that revival of the Federation was one of the
aims of the Conference. In the Report on the state of the Croatian State
and Nations in 1995, Mr. Tudjman mentioned, inter alia, that:

“The international proponents attach special significance to the
Federation, within their concept of peace and new order in this area,
as testified by the fact that the Agreement on implementation of B-H
federation, signed by the representatives of Croatian and Muslim-

28 Slohodna Dalmacija, Split, 18 December 1995 (emphasis added).
29 fhid

86

678 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

Boshniak people, was endorsed by representatives of USA, Euro-
pean Union and Germany.” 30

It seems that only the Dayton Agreement and the political will that gave
birth to them, encouraged serious steps towards actual constitution of the
Muslim-Croat Federation.

On 14 January 1996, a couple of months after the signing of the
Dayton Agreement and almost two years after the proclamation of the
Croat-Muslim Federation, the “Presidency of the Croatian Democratic
Union for B-H” adopted a decision on the establishment of the Croatian
community of Herceg-Bosna as a political, economic and cultural com-
munity of Croatian people in Bosnia and Herzegovina. Within its option
for a thorough implementation of the Dayton Agreement, the Presidency
of the Croat Democratic Community (HDZ) of Bosnia and Herzegovina
also passed a resolution on the progressive transfer of the function of
executive authority of the Croatian Republic of Herceg-Bosna to the
authorities of the Federation of Bosnia and Herzegovina. Members of
the HDZ Presidency of Bosnia and Herzegovina also called on the
Muslim counterpart in the Federation to start transferring the authority
to the organs of the Federation?'.

The Government of the Federation was established as late as 31 Janu-
ary 1996. President of the Federation Mr. K. Zubak, in his address to the
Constitutional Assembly stressed, inter alia, that “by transferring author-
ity from the Republic to the Government of the Federation the functions
of Herceg-Bosna will be transferred to the Federation”.

As Le Monde reported:

“The Croat separatists in Bosnia announced on Saturday 15 June
that they were forming a new government for their ‘independent State
of Herzeg-Bosna’. In principle, all the institutions of this self-pro-
claimed State should have disappeared with the advent of the institu-
tions of the Croat-Muslim Federation.” #

Hence, the political project of promotion of Muslim-Croat Federation
in Bosnia and Herzegovina, incorporated in the Washington Agreement
of 1993, has not materialized. Muslim and Creat State entities continued
to function after the agreement as de facto States, which from time to
time kept entering into a sort of political and military co-ordination for
the sake of pragmatic political aims. But that co-operation was, accord-
ing to its inherent characteristics, a co-operation between State entities.

30 Vjesnik, Zagreb, 2 January 1996 (emphasis added).

11 Vecernji List, Zagreb, 15 January 1996.

42 Borba, Belgrade, 1 February 1996 (emphasis added).

3 Le Monde, Tuesday 18 June 1996/3. { Translation by the Registry. }

87

679 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

In the light of the Dayton Agreement, promotion of the Federation is
a political and contractual obligation, thus in view of the present state
of affairs, it could be said that the Federation is a State entity in statu
nascendi.

The qualification “self-proclaimed” which is usually attached to the
Republic of Srpska and Herceg-Bosna can hardly have any legal effect.
According to its original, grammatical meaning, it denotes the obvious
fact that no-one can “proclaim” a newly emerging State except itself — in
that sense every newly emerging State is “self-proclaimed”. The heart of
the matter is therefore, not whether a new State is “self-proclaimed” or is
proclaimed by a second or third party, but whether the proclamation is
based on fact and the law.

This qualification can have legal meaning only within the reasoning of
constitutive theory on the recognition of States as a condition of their
emergence or in the neoconstitutive practice of the application of the
ruling, declarative theory.

21. Bosnia and Herzegovina as a State within the administrative bor-
ders of the former federal administrative unit, bearing the name of the
former federal unit, could only be discussed, so to speak, after the
enforcement of the Dayton Agreements. A precise qualification of Bosnia
and Herzegovina in these terms may be given only after a global analysis
of the contents of the above-mentioned Agreements.

22. The “Dayton Agreements” as a collective name for a series of
agreements, are endowed with ambivalent legal faculties.

In formal terms, the fundamental part of the Agreements should be the
General Framework Agreement for Peace in Bosnia and Herzegovina.
Such a conclusion is imposed by the fact that other agreements were
qualified as annexes to the General Framework Agreement (Agreement
on the Military Aspects of the Peace Settlement; Agreement on Regional
Stabilization; Agreement on Inter-Entity Boundary Line and Related
Issues; Agreement on Elections; Agreement on Arbitration; Agreement
on Human Rights; Agreement on Refugees and Displaced Persons;
Agreement on the Commission to Preserve National Monuments; Agree-
ment on the Establishment of Bosnia and Herzegovina Public Corpora-
tions; Agreement on Civilian Implementation; Agreement on Internatio-
nal Police Task Force), with the exception of the Agreement on Initialling
the General Framework Agreement for Peace in Bosnia and Herzegovina.
The contents of the General Framework Agreement, on the one hand,
and the rest of the Agreements, drawn up in the form of annexes, on the
other, suggest that the main commitments conducive to a comprehensive
settlement to bring an end to the tragic conflict in the region, as stated in
the General Framework Agreement, are contained in those annexes.

The General Framework Agreement, by its nature, is a specific combi-
nation of elements of political declarations and elements relative to guar-
antees which resemble an international treaty, stricto sensu, conceived as
an act creating reciprocal rights and obligations of the parties thereto.
The elements characteristic of political declarations are reflected in

88

680 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

the provisions in a series of the General Framework Agreement
Articles (Arts. IT, I, IV, V, VI, VII and IX} whereby the parties only wel-
come and endorse arrangements stipulated in the Annexes to the General
Framework Agreement. The only Articles of the General Framework
Agreement binding on the parties in a way suitable to international
treaties, stricto sensu, are Articles I and VIL True, most of the Articles
mentioned above include a standard form of words providing that
“[t]he parties shall fully respect and promote fulfilment of the commit-
ments made” but the meaning of such a wording, in terms of the contents of
Article I of the General Framework Agreement and the nature of those
commitments is, at least when SFY and Croatia are referred to, more of a
sort of a guarantee that the parties to the Agreements, specified as Annexes,
will implement the undertakings, rather than constituting a binding obliga-
tion. Particularly significant in that regard, apart from the above-mentioned
standard wording in the Annexes, is the Agreement on Initialling the Gen-
eral Framework Agreement for Peace in Bosnia and Herzegovina. By that
Agreement, which is not formally an annex to the General Framework
Agreement, “[t]he Parties [the Republic of Bosnia and Herzegovina, the
Republic of Croatia and the Federal Republic of Yugoslavia], and the Enti-
ties that they represent, commit themselves to signature of these Agree-
ments” {Art. I). It provides that the very implementation of the General
Framework Agreement and its Annexes is to be entrusted to the Joint
Interim Commission composed of representatives of the Bosnia and Herze-
govina Federation, Republic Srpska, Bosnia-Herzegovina Republic. The
position of the Bosnia-Herzegovina Republic, as a contracting party, is spe-
cific in this context, as the Republic of Bosnia and Herzegovina, by virtue
of Article I (3) of the Constitution “shall consist of the two Entities, the
Federation of Bosnia and Herzegovina and the Republic Srpska (herein-
after ‘the Entities”}” (emphasis added). Hence the entities figuring in the
structure of the Dayton Agreements, in Annex 4 to the Agreements, are the
parties; therefore, in the light of relevant conditions for constitution of the
Bosnia-Herzegovina Republic as a State within the administrative borders
of that former federal unit, it follows that the Bosnia-Herzegovina Republic
guarantees the obligations of the entities to constitute it. This discrepancy
results from the premise of an unbroken legal personality of Bosnia and
Herzegovina under international law as a State — which is of dubious legal
validity (see para. 23 below).

Hence it may be said that the Annexes constitute the essential sub-
stance of the Dayton Agreements, while the General Framework Agree-
ment, as implied by its very name, constitutes a legal-political framework
integrating the regulatory contents of the Annexes. The parties to the
“General Framework Agreement” are, as stated in the Preamble, “(t]he
Republic of Bosnia and Herzegovina, the Republic of Croatia and the
Federal Republic of Yugoslavia”. The parties to the Agreement’s Annexes
are, however, different. The Republic of Bosnia and Herzegovina, the
Federation of Bosnia and Herzegovina and the Republic of Srpska are,
either alone or together with Croatia and Yugoslavia, parties to most of

89

681 APPLICATION OF GENCCIDE CONVENTION (DISS. OP. KRECA)

the Annexes. The three aforementioned parties signed the Agreement on
the Military Aspects of the Peace Settlement; Agreement on Inter-Entity
Boundary Line and Related Issues; Agreement on Elections; Agreement
on Refugees and Displaced Persons; Agreement on Commission to Pre-
serve National Monuments; and Agreement on International Police Task
Force. Together with the Republic of Croatia and the Federal Republic
of Yugoslavia, the three parties figure as parties to the Agreement on
Regional Stabilization and the Agreement on Civilian Implementation of
the Peace Settlement. The Federation of Bosnia and Herzegovina and the
Republic of Srpska are parties to the Agreement on Establishment of
Bosnia and Herzegovina Public Corporations and the Agreement on
Arbitration. The Constitution of the Republic of Bosnia and Herze-
govina is also an integral part of the Dayton Agreements. It is designed
in the form of Annex 4 of the Agreement and is approved by respective
declarations of the Republic of Bosnia and Herzegovina, the Federation
of Bosnia and Herzegovina and the Republic Srpska.

23. In the light of the contents of the Dayton Agreements and in par-
ticular in the light of the current state of affairs, Bosnia and Herzegovina
may be qualified in terms of international law as a State in statu nascendi,
At the time of the entry into force of the Dayton Agreements, the
Republic of Bosnia and Herzegovina, as a State within the administrative
borders of the former Yugoslav federal unit of the same name, possessed
literally no relevant attribute of a State in terms of international law.
More particularly:

fa) The Republic of Bosnia and Herzegovina has no central State
authorities to this day. Annex 4 (Constitution of Bosnia and Herze-
govina) to the Dayton Agreements stipulates in Articles IV, V, VI and
VII joint authorities in the form of a Parliamentary Assembly, a Presi-
dency, a Council of Ministers, a Constitutional Court and a Central
Bank, but the Constitution is conditioned upon “free, fair, and demo-
cratic elections” as a basis for a representative government“. In keep-
ing with the provision of Article 4 of “Transitional Arrangements”,
joined in the form of Annex IT to the Constitution, “[ulntil superseded
by applicable agreement or law, governmental offices, institutions, and
other bodies of Bosnia and Herzegovina will operate in accordance
with applicable law”*>. Systematically interpreted, the above-men-
tioned provision implies that governmental offices, institutions and
other bodies of the entities in the territory of Bosnia and Herzegovina
“will operate in accordance with applicable law”;

fb} The Republic of Bosnia and Herzegovina up to the present time has
possessed no coherent legislation of its own. True, the Constitution
of the Republic as a supreme legal act has come into force but

# Preamble of the Agreement on Elections, doc. A/50/790-8/1995/999, p. 53,
35 fbid., p. 76.

90

682

fe)

(4)

APPLICATION OF GENOCIDE CONVENTION (DISS. OP, KRECA)

“[alll laws, regulations and judicial rules of procedure in effect
within the territory of Bosnia and Herzegovina when the Consti-
tution enters into force shall remain in effect to the extent not
inconsistent with the Constitution, until otherwise determined by
a competent governmental body of Bosnia and Herzegovina” **;

The Republic of Bosnia and Herzegovina has no single judicial sys-
tem or administrative procedure. This fact is also formally endorsed
by Article 3 of the “Transitional Arrangements”, which states:

*[alll proceedings in courts or administrative agencies functioning
within the territory of Bosnia and Herzegovina when the Consti-
tution enters into force shall continue in or be transferred to other
courts or agencies in Bosnia and Herzegovina in accordance with
any legislation governing the competence of such courts or
agencies” >”:

The Republic of Bosnia and Herzegovina has no armed force of its
own. Moreover, a joint army is not an institution of a central
authority, since it does not figure as one of the responsibilities of the
Peace Settlement and the Agreement on Regional Stabilization,
which are relevant in this matter. By their wording and their content
they resemble the agreements among sovereign, independent States
on confidence and security building measures, rather than agree-
ments among entities within one State. The main purpose of the
obligations entered into under the Agreement on the Military
Aspects of the Peace Settlement relate to the establishment of a
durable cessation of hostilities, which implies that

“(njeither Entity shall threaten or use force against the other
Entity, and under no circumstances shall any armed forces of
either Entity enter inte or stay within the territory of the other
Entity without the consent of the government of the latter and of
the Presidency of Bosnia and Herzegovina”

and that “lasting security and arms control measures . . . which aim
to promote a permanent reconciliation between all Parties” are to be
established*8, The Agreement on Regional Stabilization, however,
provided for a genera) obligation of establishment of progressive
measures for regional stability and arms control by achieving bal-
ances and stable defence force levels at the constant numbers con-
sistent with the parties’ respective security and the need to avoid an
arms race in the region Ÿ ;

76 Doc, A/50/790-8/1995/999, Transitional Arrangements, Art. 2, p. 76.
¥ hid | Art. 3.

38 fhid., Art. 1 (2) fa), fe), p. 8.

39 fbid,, p. 2.

91

683 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA}

fe) The Republic of Bosnia and Herzegovina does not have its own police
force. The competence of the police forces of the entities is limited
ratione loci. Only the International Police Task Force, established
under the corresponding Agreement marked as Annex 11, is author-
ized, in keeping with its tasks laid down in Article LIT of the Agree-
ment, to act throughout the Republic of Bosnia and Herzegovina.

Of the relevant conditions for statehood of Bosnia and Herzegovina
within its administrative borders, only the condition concerning the con-
tractually determined administrative borders of Bosnia and Herzegovina
as the internationally recognized ones, has been fully met“.

24, in the light of the foregoing it may be said that the relevant factual
and legal status of Bosnia and Herzegovina as a State within the admin-
istrative borders of the same ex-federal unit, may be defined as a political
praject of the organized international community, whose materialization
was transformed by the Dayton Agreements into a binding obligation of
the parties to the Agreements. The fact that this is more a contractual
obligation to establish Bosnia and Herzegovina as a State than a conse-
cration of the current state of affairs is testified to by the nature of the
Constitution of the Republic of Bosnia and Herzegovina. As it stands, it
is not, stricte sensu, a constitution, that is, an act of the internal consti-
tution-making authority, but is an international treaty incorporating the
text of the Constitution. The term “party” denotes a State which has con-
sented te be bound by the treaty and for which the treaty is in force!. By
virtue of Article 2 fa} of the Convention on the Law of Treaties,

ae

treaty’ means an international agreement concluded between States
in written form and governed by international law, whether em-
bodied in a single instrument or in two or more related instruments
and whatever its particular designation”.

In other words, underlying the title “Constitution of Bosnia and Herze-
govina” is a treaty of two State entities — the Federation of Bosnia and
Herzegovina and the Republika Srpska — to establish a State within the
administrative borders of the former federal unit of Bosnia and Herze-
govina, since “[e]very State possesses capacity to conclude treaties” *.
Moreover, the personality of one of the parties — the Federation of
Bosnia and Herzegovina — possesses elements of political fiction that
considerably outweigh the real attributes of statehood (see para. 19 above).
Hence, in a broader context, the global contractual obligation to estab-
lish Bosnia and Herzegovina within its administrative borders also covers
the materialization of a separate contractual obligation undertaken by

40 Article X of the General Framework Agreement for Peace in Bosnia and Herze-
govina.

41 Convention on the Law of Treaties, 1969, Art. 2 (9).

42 Thid., Art. 6.

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684 APPLICATION OF GENOCIDE CONVENTION (DISS. GP. KRECA)

the Croat and Muslim state entities in Bosnia and Herzegovina under
the Washington agreement — the obligation to form the Federation of
Bosnia and Herzegovina.

At present, an absence of the crucial State elements in terms of inter-
national law makes Bosnia and Herzegovina within its administrative
borders a State sui generis: 4 combination of a contractual relationship
of two entities with a strongly installed element of an international pro-
tectarate. This status is expressed at two levels, that is

{a} the factual level, as reflected in the position of IFOR. These forces
are, by definition, a “multinational military Implementation
Force” deployed to Bosnia and Herzegovina to “help ensure com-
pliance with the provisions of this Agreement”. IFOR is not only
one armed force which shall “have complete and unimpeded free-
dom of movement by ground, air, and water throughout Bosnia and
Herzegovina”* but is even authorized to “take such actions as
required, including the use of necessary force, to ensure compliance
with this Annex, and to ensure its own protection”;

(@) the iegal level, since particularly relevant provisions of Article VI of
the Constitution of Bosnia and Herzegovina (Constitutional Court),
which is an inherently adjudicative body which has “exclusive juris-
diction to decide any dispute that arises under this Constitution
between the Entities or between Bosnia and Herzegovina and an
Entity or Entities, or between institutions of Bosnia and Herze-
govina”*’, Paragraph 1 of the above-mentioned Article provides for
the composition of the Court in the following way:

“The Constitutional Court of Bosnia and Herzegovina shall
have nine members.

fa) Four members shall be selected by the House of Representa-
tives of the Federation, and two members by the Assembly of
the Republika Srpska. The remaining three members shall be
selected by the President of the European Court of Human
Rights after consultation with the Presidency.”

It is, therefore, beyond any doubt that the election of one-third of the
members of the court is not in any way influenced by the Presidency of
the Republic of Bosnia and Herzegovina or by any other organ of the

4 Article 1 of the Agreement on the Military Aspects of the Peace Settlement, doc.
A/50/790/8/1995/999, p. 7.

4 thid.

45 Ibid, p. 19.

46 Ibid, p. 8.

#7 fhid., p. 71.

48 fbid., p. 70.

93

685 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

Republic or Entities, in practical terms, given the fact that consultation
per definitionem has no binding force.

The provisions relating to the competence of the International Police
Task Force can be mentioned among others. The competences of these
forces cover, inter alia, the “monitoring, observing and inspecting [of]
law enforcement activities and facilities, including associated judicial
organizations, structures, and proceedings” #*. The real range of these
powers in the context of suprema patestas of the Republic of Bosnia and
Herzegovina becomes clear in view of the provisions of Article VII of the
Agreement which defines law enforcement agencies as those involved in
law enforcement, criminal investigations, public and State security, or
detention or judicial activities °°.

The elements of international protectorate moreover possess a twofold
significance. On the one hand, they are, especially when the composition
of the Constitutional Court is concerned, an integral part of the State
structure of Bosnia and Herzegovina, construed by the Dayton Agree-
ments, while on the other, they serve to guarantee enforcement obliga-
tions entered into by the entities under the agreements.

25. There is an essential analogy between the Republic of Bosnia and
Herzegovina and Finland after its proclamation of independence on
4 December 1917. Since the Permanent Court of International Justice did
not exist at the time, an opinion on the status of Finland was requested of
the International Committee of Jurists. In its Report the Committee
noted, inter alia, that:

“Certain elements essential to the existence of a state, even some
elements of fact, were lacking for a fairly considerable period. Politi-
cal and social life was disorganized; the authorities were not strong
enough to assert themselves, civil war was rife; further the Diet, the
legality of which had been disputed by a large section of the people,
had been dispersed by the revolutionary party ... the armed camps
and the police were divided into two opposing forces . . . It is, there-
fore, difficult to say at what exact date the Finnish Republic, in the
legal sense of the term, actually became a definitely constituted sov-
ereign state, This certainly did not take place until stable political
organization had been created, and until the public authorities had
become strong enough to assert themselves throughout the territo-
ties of the state without the assistance of foreign troops.” >!

As Warren Christopher, the United States Secretary of State,
noted:

* Article (1.1 (a) of the Agreement on International Police Task Force, doc. A/5O/
790/S/1995/099, p. 118.

© Tbid., Art. VII, p. 120.

ST Report by the International Committee of Jurists (Larnoude (President), Struycken,
Huber), Official Journal of the League of Nations, Spec. Supp. No. 3 (1920), p. 8.

94

686 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

“Without elections, there will be no unified Bosnia state, no
national constitution or judiciary and little hope for greater coopera-
tion among Bosnia’s diverse communities.” *?

26. The recognition of Bosnia and Herzegovina is frequently, explicitly
or implicitly, used as an argument in support of the existence of Bosnia
and Herzegovina as a sovereign and independent State within the admin-
istrative boundaries of the former Yugoslav federal unit.

Such an approach is somewhat surprising, since “the State exists by
itself (par lui-même) and the recognition of a State is nothing else than a
declaration of this existence, recognized by the States from which it ema-
nates” *3,

This is specially so, having in mind that “the practice of States shows
that the act of recognition is still regarded as essentially a political deci-
sion, which each State decides in accordance with its own free apprecia-
tion of the situation” 54,

It is reasonable to suppose that, merely by relying on these facts, the
learned scholar is able to conclude that “frlecognition is still in the lan-
guage of diplomats but it does not belong in the language of law’?*.

It is true that the position of Bosnia and Herzegovina is a specific one,
since it has been recognized by practically the whole international com-
munity. This fact serves as the basis for the thesis that

“recognition, along with membership of international organizations,
bears witness to these States’ conviction that the political entity so
recognized is a reality and confers on it certain rights and obliga-
tions under international law’’**.

This, in doctrinal terms, elegant thesis highlights among other things,
the ambivalent nature of the institute of recognition of States. In the
spirit of the ruling, declarative theory, the recognition of States should be
a statement of the factual situation formed /eges artis in harmony with
the relevant legal rules on the emergence of new States. The “States’ con-
viction that the political entity . . . is a reality” clearly need not corre-
spond to the factual situation. “Conviction”, per definitianem, is not a

#2 “Without Elections, There Will Be No Unified Bosnian State”, dtternational Herald
Tribune, 15-16 June 1996, p. 6.

# Deutsche Continental Gas-Gesselschaft v, Polish State, § AD 11 at p. 15 (1929-1930).

# United Nations Secretariat Memorandum of February 1950 concerning the question
of representation of Members in the United Nations, United Nations doc. 8/1466, SCOR,
5th Year, Supp. for Jan./May 1950, p. 19.

55 L. Henkin, “General Course on Public International Law”, Recueil des cours de
l'Académie de droit international de La Haye, Vol. 216, 1989, p. 51.

5¢ Statement of the Government of the Republic of Bosnia and Herzegovina on Pre-
liminary Objections, para. 4.14.

95

687 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

factual condition but its subjective expression — hence it is necessary ad
casum to carry out an investigation so as to establish the precise meaning
of the phrase “States’ conviction” and to see whether or not it is based on
fact or law. A contrario, the whole problem would be shifted to the
domain of the rule of “majority opinion”, so that fact would be what the
majority considers it to be. |

Having that in mind, it is, generally speaking, necessary from the
standpoint of Jaw to examine in each individual case whether the relevant
legal criteria for recognition are met.

Concerning Bosnia and Herzegovina, it is obvious that, as an assumed
State in the administrative boundaries of that former Yugoslav federal
unit, it could be ranked among the circle of States only as a new State.
Hence, it is necessary to see which criteria are relevant for the recognition
of new States.

The essence of those criteria may be taken to be expressed in para-
graph 100 (Minimum Requirements for Recognition of New States} of
the Restatement of the Law:

“Before recognizing an entity as a new state, the recognizing state
is required to make a determination, reasonably based upon fact,
that the entity:

(a) has a defined territory and population;

{&) is under the contro] of a regime that satisfies the minimum
requirements for recognition as a government under [para-
graph] 101;

fc} has the capacity to engage in foreign relations:

fd) shows reasonable indications that the requirements of
Clauses (a)-(¢) will continue to be satisfied.” 5?

Paragraph 101 stipulates:

“Before recognizing a revolutionary regime as a government. of
a state, the recognizing state is required to make a determination,
reasonably based upon fact, that the regime

fa} is in control of the territery and population of the state; or

{b} is in control of a substantial part of the territory and popula-
tion of the state and shows reasonable promise that it will suc-
ceed in displacing the previous government in the territory of
the state.” *8

The cited criteria are, as a whole, applicable to the case of Bosnia and
Herzegovina. In such an assessment, it is decisive that

#7 American Law Institute, Restatement of the Law, Second, Foreign Relations Law of
the United States, 1965, p. 321.
38 Ibid, p. 322.

96

688 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

“Recognition of a government becomes a problem for decision
only if an abnormal change of government is involved, i.e., one in
violation of the existing constitution of a state.” 59

Bosnia and Herzegovina did not meet the relevant criteria for recognition
in the static or dynamic sense. More particularly, at the time of recogni-
tion, not only did it not have a “defined territory and population” (see
paras. 6-9 above) nor, in particular, “control of a substantial part of
the territory and population” (see para. 18 above} but there were no
“reasonable indications” that it could fulfil those requirements in the
future without active external support. Even Bosnia and Herzegovina
itself in the “Second Request. for Indication of Provisional Measures of
Protection” of 27 July 1993 notes at the end of its submission: “[t]his will
be the last opportunity that this Court shall have to save . . . [the] State
of Bosnia and Herzegovina” (p. 55). The “Minimum Requirements for
the Recognition of New States”, as presented, should definitely be
complemented with legal requirements as well since “the development of
self-determination [is] an additional criterion of statehood, denia) of
which” would cbviate statehood ®.

These additional criteria strengthen the grounds for the conclusion
that the recognition of Bosnia and Herzegovina was granted on an exclu-
sively political basis. Also, the “Guidelines on the recognition of new
States in Eastern Europe and in the Soviet Union”, on the basis of which
Bosnia and Herzegovina was recognized by the European Community
and its member States, and the discussions in the United Nations Organi-
zation at the time of the admission of Bosnia and Herzegovina, indicate
that in the realm of law, recognition was granted on the grounds of the
right of peoples to self-determination even though, in this particular case,
its application is at the very least doubtful (see paras. 44-76 below).

In other words, the recognition of Bosnia and Herzegovina as an inde-
pendent State was inspired more by the interests of national politics and
opportuneness than by the existence of relevant legal principles in regard
to this matter. The recognition of Bosnia and Herzegovina was, essen-
tially, one of the instruments for the realization of the political concept
on the settlement of the Yugoslav crisis, an instrument which reflected
the internal logic of that concept independently of the relevant legal rules.
The instrumental nature of the recognition in the Yugoslav case was
pointed out by Ambassador Brown:

“Lord Carrington, who chaired the Conference on Yugoslavia .. .

believed that recognition was an important weapon in bringing the

* American Law Institute, Restatement af the Law, Second, Foreign Relations Law of
the United States, p. 323.
50 M. N. Shaw, International Law, 2nd ed., 1986, p. 132.

97

689 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

sides together. Recognition could be an incentive for cooperation or
a sanction for lack of cooperation,” ®!

This is particularly conspicuous in the “Declaration on Yugoslavia” of
16 December 1991 which together with the “Guidelines on the recogni-
tion of new States in Eastern Europe and the Soviet Union”, passed on
the same day by the EC Ministerial Council, served as a basis for the
recognition of Bosnia and Herzegovina by the European Community and
its member States.

By their Declaration, the EC and its member States invited

“all Yugoslay Republics to state by 23 December whether:

— they wish to be recognized as independent States;

— they accept the commitments contained in the above-mentioned
guidelines;

— they accept the provisions laid down in the Draft Convention —
especially those in Chapter II on human rights and rights of
national or ethnic groups — under consideration by the Confer-
ence on Yugosiavia.” 6?

Bosnia and Herzegovina therefore, together with the other federal units
of SFRY, was invited te state whether it wished io be recognized as an
independent State. The invitation was made at a time when the desire for
independence had still not been expressed in the appropriate way in Bos- :
nia and Herzegovina. The referendum on the status of Bosnia and Herze-
govina at which two out of the three peoples of Bosnia and Herzegovina
declared themselves in favour of the “sovereignty and independence of
Bosnia and Herzegovina” was not held until March 1992. It is hard to
assume that such an invitation, extended by a body which had offered its
good services and mediation in dealing with the Yugoslav crisis, could
have had no effect on the political options taken in Bosnia and Herze-
govina, particularly if the invitation to recognition is linked with the
terms for recognition which, inter alia, included the acceptance of “the
provisions laid down in the Draft Convention . . . under consideration by
the Conference on Yugoslavia”, The key provision of the “Draft Con-
vention” which the Conference Chairman Lord Carrington presented to
the Conference on 23 October 1991 is contained in Article I which reads:

“The new relations between the Republics will be based on the fol-
lowing:
fa} sovereign and independent Republics with an international per-
sonality for those which wish it;

SE. G. Brown, “Force and Diplomacy in Yugoslavia: the U.S. Interest”, American
Foreign Policy Newsletter, Vol. 15, No. 4, August 1993, p. 2.
#2 European Political Co-operation, Press Release, 17 December 1991 (emphasis added).

98

690 APPLICATION OF GENOCIDE CONVENTION (DISS. GP. KRECA)

fb) a free association of the Republics with an international per-
sonality as envisaged in this Convention;

fc) comprehensive arrangements, including supervisory mecha-
nisms for the protection of human rights and special status for
certain groups and areas;

fd) inthe framework of general settlement, recognition of the inde-
pendence, within the existing borders, unless otherwise agreed,
of those Republics wishing it.”

The relevant circumstances show that there existed a connection
between recognition and the dismemberment of the SFRY along the
seams of the administrative division into federal units as provided for by
Article 1 fa} of the Draft Convention. That concept, which included the
automatic substitution for the personality of the SFRY of the personality
of the federal units, reflected the value judgment of the “Declaration on
Yugoslavia” of 16 December 1991, on the basis of which its contents
were designed. There can be no other explanation for certain formula-
tions contained in the Declaration — exempli causa, those according to
which the European Community and its member States “will not recog-
nize entities which are the result of aggression”. Aggression per defini-
tionem 1s the

“use of armed force by a state against the sovereignty, territorial
integrity or political independence of another state, or in any other
manner inconsistent with the Charter of the United Nations”.

In fact, there are certain indications that the presentation of the Draft
Convention by the providers of good offices and mediators was the
expression of a political decision on the transformation of Yugoslav fed-
eral units into sovereign States. The EPC statement of 6 October 1991
emphasized that

“it was agreed that a political solution should be sought in the per-
spective of recognition of the independence of those republics wish-
ing it, at the end of the negotiating process conducted in good faith
and involving all parties”.

A further indication is the actual title of the document — the term “Con-
vention” denotes an “agreement between states in the sense of interna-
tional law”. The Convention on the Law of Treaties (1969), lex fata in
this area, stipulates in Article 2 that a “Treaty” represents “an interna-
tional agreement concluded between States in written form and governed
by international law . . . whatever its particular designation”. Article 6 of
the Convention stipulates that “[e]very State possesses capacity to con-
clude treaties”.

85 Art. 1, General Assembly resolution 3314 (XXIX)} of 14 December 1974 (emphasis
added}.

99

691

APPLICATION OF GENOCIDE CONVENTION (DISS. GP. KRECA)

Testifying to such a nature of the recognition of independence of the
Yugoslav federal units is the linkage of recognition with practical politi-
cal aims. The United States-European Community Declaration on the
recognition of the Yugoslav republics states inter alia:

“The Community and its member States and the United States
have agreed to coordinate their approaches to completing the pro-
cess of recognizing those Yugoslav republics that seek independence,

(i) that the United States will, in this context, give rapid and posi-
tive consideration to the requests for recognition by Croatia and
Slovenia in such a way as to support the dual-track approach
based on the deployment of the UN peacekeeping force and the
European Community Peace Conference chaired by Lord Car-
rington.

(ii) that positive consideration should be given to the requests for
recognition of the other two republics, contingent on the resolu-
tion of the remaining European Community questions relating
to those two republics. In this context, they strongly urge all
parties in Bosnia-Herzegovina to adopt without delay constitu-
tional arrangements that will provide for a peaceful and harmo-
nious development of this republic within its existing borders.
The Community and its member States and the United States
also agree strongly to oppose any effort to undermine the sta-
bility and territorial integrity of those two republics.”

In connection with the recognition of Bosnia and Herzegovina as an
independent State within the administrative boundaries of the former
federal] unit, at least two conclusions have to be drawn:

(a)

(b}

100

phenomenologically, in this case, the recognition of Bosnia and
Herzegovina did not follow the natural logic of the legal process of
recognition, namely, that it should be a passive acknowledgment of
the establishment of the State. In the case of Bosnia and Herze-
govina, the recognition, as testified to by developments, was one of
the instruments for the establishment of Bosnia and Herzegovina as
a State within its administrative boundaries. The recognizing States,
by recognizing Bosnia and Herzegovina, actually demonstrated their
intention to create it or to participate in its creation;

legally, the recognition of Bosnia and Herzegovina within its admin-
istrative boundaries represented the recognition of a non-existent
State. It was granted exclusively on the basis of political considera-
tions since, at the moment of recognition, Bosnia and Herzegovina
did not fulfil the minimum requirements for recognition as a new
State. -

692 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

Moreover, having in mind the importance of self-determination of peoples
as a criterion in the decision regarding statehood, it may be concluded
that the admission of Bosnia and Herzegovina to the United Nations was
an act of diplomacy which runs counter to the established practice of the
Organization in that regard.

SECOND PRELIMINARY OBJECTION

27. The position of the Court regarding the second preliminary objec-
tion raised by Yugoslavia is based on two premises:

(i) that it “does not, in order to rule on that objection, have to consider
the provisions of domestic law which were invoked in the course of
the proceedings either in support of or in opposition to that objec-
tion”, since “[alccording 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 international relations”, and

(ii} that, “Mr. Izetbegovic was recognized, in particular by the United
Nations, as the Head of State” and that “his status as Head of State
continued subsequently to be recognized in many international
bodies and several international agreements” (Judgment, para. 44).

My views on the matter are very different. The Application like that of
Bosnia and Herzegovina instituting proceedings before the Court consti-
tutes a typical unilateral act of the State producing legal consequences for
the mutual relations among the parties to the Genocide Convention.
Hence the Court is authorized to consider the relevant provisions of Bos-
nia and Herzegovina’s constitutional law, as well as other cases in which
the application of a norm of international law was dependent upon inter-
nal law) (exempli causa, the Western Griqualand Diamond Deposits case
(1871) (2 Recueil des arbitrages internationaux 1856-72, pp. 676-705
(1923)); Cleveland Award (1888) (2 Moore, international Arbitrations
1945-68): the case concerning Free Zones of Upper Savoy and the Dis-
trict of Gex (1932) (P.CLJT. Series A/B, No. 46); the Fisheries case
{CT Reports 1951, pp. 125-126); the Nottebohm case GC. J. Reports
1955, p. 4); the case concerning the Application of the Convention of 1902
Governing the Guardianship of Infants C.J. Reports 1958, pp. 62-66),
etc.). In other words, this is not a case of conflict between interna] and
international law, as, exempli causa, in the Certain German Interests in
Polish Upper Silesia or S.S. “Wimbledon” cases, but a matter in which
these two laws are in co-ordination, dependent on each other.

In concreto, Yugoslavia claims that Mr. A. Izetbegovié could not have

issued an authorization for instituting proceedings before the Court in
the present case since:

4 J. Dugard, Recognition and the United Nations, 1987, p. 79.

101

693 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

(i) the issue of such authorization was not within the scope of the com-
petence of the President of the Presidency of Bosnia and Herze-
govina, and

{ii} at the relevant point in time, Mr. Izetbegovié was not, according to
the Constitution of Bosnia and Herzegovina, the President of the
Presidency.

It is indisputable that both claims are based primarily on the internal
law of Bosnia and Herzegovina so that diagnosing solutions established
by the constitutional law of Bosnia and Herzegovina with respect to both
questions is essential, albeit in different ways, for the application of
the relevant norms of international law. This is indirectly recognized by
Bosnia and Herzegovina itself in its request to the Court to:

“take cognizance of the following facts which establish that Presi-
dent Izetbegovié was duly appointed President of the Presidency of
Bosnia and Herzegovina and that he exercised his functions in
accordance with the relevant constitutional procedures”®.

In the point under (i) the relevant general legal principle as expressed in
Article 46 of the Convention on the Law of Treaties (1969) seeks to strike
a relative balance between international and internal law in the form of a
modified internationalistic theory (Head of State Theory). The only way
for the Court to decide whether this general legal principle is applicable
in this specific case is by entering into an examination of the internal law
of Bosnia and Herzegovina with a view to establishing whether, when
Mr. Izetbegovié granted the authorization to institute proceedings before
the Court the internal law of Bosnia and Herzegovina was violated.

The point under (ii) also cannot be resolved without an examination of
the internal law of Bosnia and Herzegovina.

There is no denying, as is noted by Bosnia and Herzegovina, that “[nJo
rule of international law . . . requires the structure of a State to follow
any particular pattern” ®. It is also beyond dispute that international law,
being sovereign and independent of internal law, determines the circle of
persons that represent the State in international affairs (this holds good
regardless of the fact that the circle of persons representing the State in
foro externe is determined on the basis of virtually identical constitu-
tional regulations}. However, sedes materiae the point under (11) raised in
the second preliminary objection dees not question the right of Mr. Alija
Tzeibegovic, as Head of State, and in conformity with international law,
to issue an authorization for the institution of proceedings before the
Court but rather questions whether Mr. Izetbegovié was, at the relevant
point in time, ie., at the time of issuing of the authorization in question,

* Statement of the Government of the Republic of Bosnia and Herzegovina, p. 42.
6 Case concerning the Western Sahara, Advisory Opinion, C.J. Reports 1975, p. 43.

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694 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

the Head of State. The only way to answer this question raised in the
second preliminary objection is by examining the internal, constitutional
law of Bosnia and Herzegovina. A contrario, the relevant norm of inter-
national law would be the one determining not only the pattern of the
structure of a State but also the modalities of the Constitution and the
duration of that structural pattern.

28. On the second day of the hearing regarding the first request for the
indication of provisional measures, the Agent of Bosnia and Herzegovina
pointed out inter alia that:

“President Izetbegovié personaily accredited . . . Ambassador
Sacirbey, who appeared. before you yesterday, and me as General
Agents with Extraordinary and Plenipotentiary Powers to the Court
on behalf of Bosnia and Herzegovina,” 7

That the statements of the then Agent of Bosnia and Herzegovina corre-
spond to the factual situation is confirmed by the text of the act on the
appointment of

“H.E. Muhamed Sacirbey, our Ambassador and Permanent Rep-
resentative to the United Nations, and Francis A. Boyle, Professor
of International Law at the University of Illinois College . . . to be
our General Agents with Extraordinary and. Plenipotentiary Powers
to institute, conduct and defend against any and ali legal proceed-
ings on our behalf before the Internationa! Court of Justice.”

The text of this act was signed, as stated in the act, by “Alija Izetbegovié,
President of the Republic of Bosnia and Herzegovina”. The title “Presi-
dent of the Republic of Bosnia and Herzegovina” indicates unequivocally
the personal nature of President Izetbegovié’s accreditation — particu-
larly so as, contrary to the practice of the Presidency of Bosnia and
Herzegovina, it is not stated in the text that it is an act of the Presi-
dency®’. The fact that the act was written “on the official stationery of
the Presidency” cannot, in my opinion, be taken as proof that the act was
issued in the name of the Presidency of Bosnia and Herzegovina. The use
of official stationery is only prima facie grounds for the assumption that
what is written on it is an act of the organ whose name appears in the
heading. The assumption is refutable as official stationery is only the
external sign of identification of its owner, incorporates the decision of

57 CR 93/13, p. 38 (emphasis added).

68 Exempli causa, the Decree on the change of name of the Socialist Republic of Bosnia
and Herzegovina (Statement of the Government of the Republic of Bosnia and Herze-
govina on Preliminary Objections, Annexes, Vol. [, Ann. 2.12} was issued by the “Presi-
dency of the Socialist Republic of Bosnia and Herzegovina at a session held on April 8,
1992”, and signed by the “President of the Presidency of SR B-H Alija Izetbegovié”. An
identical example is the Decision on the proclamation of an imminent threat of war
passed on the same day, as wellas all the other published acts of the Presidency of Bosnia
and Herzegovina.

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695 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

the organ as well, and depends on whether in each concrete case the
formal and material conditions for issuing the act written on the official
stationery have been met. 4 contrario it would be absurd to assume that
every text written on the official stationery of an organ constitutes ipso
facte an act of that organ.

In concreto, the question may be posed whether the stationery on
which Mr. Izetbegovic gave the authorization for instituting proceedings
before the Court is without any doubt the only official stationery of the
Presidency of the Republic of Bosnia and Herzegovina. The grounds for
raising this question are provided by the fact that the word “Presidency”
on the stationery heading is found underneath the name of the State —
“Republic of Bosnia and Herzegovina” — and above the word “Presi-
dent”. The word “Presidency” can also be taken to indicate the head-
quarters of the President, particularly as Mr. Izetbegovic is described as
the “President of the Republic of Bosnia and Herzegovina”. The name of
the collective Head of State, according to the Constitution of Bosnia and
Herzegovina, is not the “Presidency” but the “Presidency of the Republic
of Bosnia and Herzegovina”.

Of particular importance is the fact that in contravention of Article 10
of the Operating Procedure of the Presidency and its customary practice,
the letter signed by Mr. Alija Izetbegovié does not feature any stamp
(either the small or the large one) of the Presidency of Bosnia and Herze-
govina.

These several points provide convincing evidence that in this concrete
case we are dealing with a “personal accreditation” by Mr. Izetbegovié.

Was President Izetbegovié authorized on the basis of the internal law
of the Applicant to personally accredit a “General Agent with extraordi-
nary and plenipotentiary powers to the Court”?

29. The function of the “President of the Republic of Bosnia and
Herzegovina” is not established by the Constitution of Bosnia and Herze-
govina, Chapter X of the Constitution speaks of the “Presidency of the
Republic of Bosnia and Herzegovina” as the organ “representing the
Republic of Bosnia and Herzegovina” © The Presidency of the Republic
of Bosnia and Herzegovina is the collective Head of State “that operates
and decides collectively at meetings and bears collective responsibility for
its work”?

The Presidency of the Republic of Bosnia and Herzegovina taken as a
whole, as a collegium, is the organ of representation according to the
Constitution. The President of the Presidency as the primus inter pares
does not exercise any independent political powers. The enactments
within the terms of reference of the Presidency of the Republic of Bosnia

*9 Chapter X of the Constitution of Bosnia and Herzegovina.

7 Arucle 219 (1) of the Constitution of Bosnia and Herzegovina.

" Article 3 of the Rules of Procedure of the Presidency of the Socialist Republic of
Bosnia and Herzegovina, Official Gazette of the Sectatist Republic of Bosnia and Herze-
govina, No. 36 (1990).

104

696 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

and Herzegovina (decrees, decisions and conclusions as well as regulations
with the effect of law in cases stipulated by the Constitution) are adopted
by the Presidency of the Republic of Bosnia and Herzegovina as a whole”,

The President of the Presidency, on behalf of the Presidency, repre-
sents the Presidency ”?. Of particular interest among the functions of the
President of the Presidency listed in Article 22 of the Operating Pro-
cedure is the function to “sign acts passed by the Presidency”.

Consequently, Mr. Izetbegovié, as the President of the Presidency, was
not authorized to “personally accredit[ed] . . . [a] General Agent with
Extraordinary and Plenipotentiary Powers to the Court on behalf of
Bosnia and Herzegovina”.

30. Yugoslavia claims in its previous objection that at the time at
which the authorization for instituting proceedings before the Court was
issued (20 March 1993), Mr. Izetbegovié “did not serve as the President
of the Republic” and that the “authorization for the initiation and con-
duct. of proceedings was granted in violation of rules of internal law of
fundamental significance” 74.

Bosnia and Herzegovina, on the other hand, finds that

“on 20 March 1993, the time of filing of the present case in the Inter-
national Court of Justice, the President of the Presidency exercised
their functions lawfully, in accordance with the relevant constitu-
tional provisions, including those relating to a state of war or emer-
gency. As President of the Presidency, President Izetbegovic is legally
entitled to represent the Republic of Bosnia and Herzegovina inter-
nationally in this matter.” #

The dispute is over the question whether Mr. Izetbegovié could have
performed the function of President of the Presidency ex constifutione
after 20 December 1992. It is indisputable that Mr. A. Izetbegovié
assumed the function of President of the Presidency of the Socialist
Republic of Bosnia and Herzegovina in December 1990, in conformity
with the relevant constitutional provisions. The term of office was
extended by a year, also in conformity with Amendment LI (para. 4,
point 6) to the Constitution of the Socialist Republic of Bosnia and
Herzegovina which stipulated:

“The President of the Presidency is elected by the Presidency from
among its members for a period of one year and he may be re-
elected for another, consecutive year on one occasion.”

The Constitution therefore prohibited the exercise of the function of the
President of the Presidency for more than two years or two consecutive

7 Article 49 of the Operating Procedure.

7 Article 21 of the Operating Procedure.

4 Preliminary Objections of Yugoslavia, p. 141, para. A.2.

75 Statement of the Government of the Republic of Bosnia and Herzegovina on Pre-
liminary Objections, p. 47, para. 2.19.

105

697 APPLICATION OF GENOCIDE CONVENTION (DISS. OP, KRECA)

terms. This prohibition was absolute in the original text of the Constitu-
tion of the Socialist Republic of Bosnia and Herzegovina as, in respect to
the President of the Presidency, no exceptions were envisaged even in the
case of a “state of war or imminent threat of war”. That such an inter-
pretation is correct is corroborated by Article 358 of the Constitution:

“In the event of a state of war or imminent threat of war the man-
date of the Members of the Presidency of SR B-H shall be continued
until such time as the conditions for election of the new Members of
the Presidency are met.” (Emphasis added.)

The prohibition was modified by Amendment LI (par. 4 (8)) to the Con-
stitution of the Socialist Republic of Bosnia and Herzegovina according
to which:

“In the event of a state of war or imminent threat of war, the man-
date of Members of the Presidency and the President shall be con-
tinued until such time as the conditions for election of new Members
of the Presidency are met.” 6

This amendment extends ratione personae the range of the exception
established for members of the Presidency by Article 358 of the Constitu-
tion of the Socialist Republic of Bosnia and Herzegovina to include the
President of the Presidency. The main elements of the sclutions contained
in Amendment LI are:

fa) the continuation of the term of office is linked to the eventuality of
a “state of war or imminent threat of war”;

{b) the prohibition of a third consecutive mandate is not abolished, but
the continuation of a mandate is envisaged in the cited cases;

fc) the continuation of the mandate is limited by appropriate “condi-
tions for the election of new Members of the Presidency”, not by the
termination of the “state of war or imminent threat of war”.

Bosnia and Herzegovina also refers to Article 220 of the Consolidated
Constitution of the Republic of Bosnia and Herzegovina adopted on
24 February 1993, which reads:

“In the event of war or a state of emergency, the mandate of the
Members of the Presidency and of the President shall be continued
until such time as the conditions for new elections for the Presidency
are met.”

In my opinion, the consolidated text of the Constitution cannot, in this
particular case, be accepted as a relevant legal basis.

More particularly, a consolidated text in Yugoslav constitutional prac-
tice was a strictly legal-technical procedure whereby the text of a norma-

78 Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No. 13 of
21 April 1989, p. 338.

106

698 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

tive act, the Constitution or laws, was adjusted to its purpose and to
the requirements of practical implementation. It excluded even minor
material-legal changes in the text of the act and was for the most part
reduced to a procedure of renumeration of segments of the normative act.
Hence, in Yugoslav constitutional practice, the consolidated text of a
normative act could not be referred to in formal proceedings including
court proceedings.

In comparison with the contents of Amendment LI, Article 220 of the
consolidated text of the Constitution of the Republic of Bosnia and
Herzegovina constitutes a modification of the Constitution. The prolon-
gation of the term of office of the Members and the President of the
Presidency in Amendment LI (para. 4 (8)) is linked to a case “of war or
imminent threat of war” whereas in Article 220 of the consolidated text
the basis for the prolongation is a case “of war or a state of emergency”.
Hence, it may be concluded that the form of consolidation of the text
actually conceals a modification of the Constitution.

The Presidency of Bosnia and Herzegovina, as stated in the preambie
to the Constitution, adopted a decision to establish a consolidated text of
the Constitution of the Republic of Bosnia and Herzegovina, and was
not authorized by the Constitution to effect any changes to the Constitu-
tion, this being within the exclusive competence of the Assembly of Bos-
nia and Herzegovina’’, The Presidency as well as the Government of the
Republic, each of the Assembly Chambers and at least 30 Assembly
Deputies, appear as the only possible proponents of proposals to amend
the Constitution #. Changes in the Constitution of the Republic of Bos-
nia and Herzegovina may only be made in the form of Constitutional
Amendments or Constitutional Laws.

It follows from the above that Article 220 of the Consolidated Consti-
tution of the Republic of Bosnia and Herzegovina, in the section in which
the continuation of the term of office of Members and the President of
the Presidency is linked also to a “state of emergency”, constitutes a
modification of the Constitution of the Republic of Bosnia and Herze-
govina, and that the change was effected, both formally and materially,
contra constitufionem.

31. Consequently, what remains to be seen is whether, in the light of
the provisions of Article 358 of the Bosnia and Herzegovina Constitution
as amended by Amendment LI (4 (8)), the established conditions had
been met for the continuation of the mandate of the President of the
Presidency of the Republic of Bosnia and Herzegovina after 20 Decem-
ber 1992, je., after the expiry of his second consecutive term,

The relevant provision of Bosnia and Herzegovina’s Constitution stipu-
lated that the “mandate of the President shall be continued” in the event

T Article 268 (3), (4) of the Constitution.
7® Article 268 (1) of the Constitution.
7 Article 268 (5) of the Constitution.

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699 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

of “war or imminent threat of war”. In other words, “war or imminent
threat of war” constituted the material, constitutional basis for the auto-
matic continuation of the mandate of the President of the Presidency.

The fulfilment of this requirement ex consiitutione implies that the
decision on the existence of “war or imminent threat of war” was taken
by the competent organ in line with established constitutional procdure.

32. The Presidency of the Socialist Republic of Bosnia and Herze-
govina, at its session of 8 April 1992, passed a “Decision on the procla-
mation of an imminent threat of war” in the territory of Bosnia and
Herzegovina. The decision was taken, as stated in the preamble

“in conformity with the provisions of Amendments LI and LXXII
to the Constitution of the Socialist Republic of Bosnia and Herze-
govina and upon the proposal of the Assembly of the Socialist
Republic of Bosnia and Herzegovina”.

It follows from this statement:

fa} that the “Decision” was taken upon the proposal of the Assembly of
the Socialist Republic of Bosnia and Herzegovina, and,

(6) that the Presidency took the “Decision” on the basis of Amend-
ments LI and LXXIT to the Constitution of the Socialist Republic of
Bosnia and Herzegovina.

33. The competences of the Assembly of the Socialist Republic of Bos-
nia and Herzegovina were established by Article 314 of the Constitution
of the Socialist Republic of Bosnia and Herzegovina (sce para. 36 below).
The unequivocal conclusion to be drawn from the text of that Article is
that the submission of the proposal on the proclamation of the imminent
threat of war was not within the terms of reference of the Assembly of the
Socialist Republic of Bosnia and Herzegovina. Article 314 was modified
by Amendment LXXI adopted on 31 July £990. In the part relating to
the competences of the Assembly adopted at a joint session of all the
Assembly Chambers, the Amendment stipulated:

“3, The Chambers of the Assembly of SR B-H at their joint ses-
sion may:

— decide on changes to the Constitution of the Socialist Republic
of Bosnia and Herzegovina;

— proclaim the Constitution of the Socialist Republic of Bosnia
and Herzegovina and any changes thereto;

— make proposals, express opinions and approve any changes to
the Constitution of the Socialist Federal Republic of Yugoslavia;

— approve changes to the borders of the Socialist Federal Republic
of Yugoslavia;

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700 APPLICATION OF GENOCIDE CONVENTION (DISS. OF, KRECA)

— decide on modifications of the borders of the Socialist Republic
of Bosnia and Herzegovina;

— review foreign policy issues;

— decide on the prolongation of the mandates of deputies to the
Assembly of SR B-H and those of aldermen serving in the
assemblies of the communes and assemblies of municipalities;

— pass the social plan of Bosnia and Herzegovina, the budget and
final accounts of the budget of SR B-H;

— call a Republic-wide referendum:
— decide on the floating of Republic-wide public lons;

— decide on debts or other obligations of the Republic;

— decide on whether to entrust affairs within the competence of the
Republic to a municipal community as a separate socio-political
community;

— elect and relieve of office: the President and Vice-President of the
Assembly of SR B-H; the member of the Presidency of SFRY
from SR B-H; the President, Vice-President and members of the
Government of SR B-H; the President and Judges of the Con-
stitutional Court of Bosnia and Herzegovina, the President and
Judges of the Supreme Court of Bosnia and Herzegovina; the
President and members of the working bodies of the Assembly of
SR B-H;

— elect and relieve of office members of the Delegation of the
Assembly of SR B-H in the Chamber of Republics and Provinces
of the Assembly of SFRY;

— appoint and relieve of office: ministers; the Governor of the
National Bank of Bosnia and Herzegovina; the Public Prosecu-
tor of the Republic, the Public Attorney of the Republic and the
Secretary General of the Assembly of SR B-H;

— adopt the Rules of Procedure of the Assembly of SR B-H;

The Chambers of the Assembly of SR B-H may decide to review
at a joint session other matters within the common terms of refer-
ence of the Assembly of SR B-H.”*

Consequently, the submission of the proposal to proclaim an “imminent
threat of war” was not within the competence of the Assembly of the

50 Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No, 21 of
31 July 1999.

109

701 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA}

Socialist Republic of Bosnia and Herzegovina exercised at a joint session
of all the Assembly Chambers nor was it envisaged by the amended ver-
sion of Article 314 of the Applicant’s Constitution. A fortiori, the same
conclusion applies to the competences of the Assembly exercised at ses-
sions of individual Assembly Chambers.

34. It is only the consolidated text of the Constitution of the Republic
of Bosnia and Herzegovina that contains a provision according to which
the Assembly of the Republic of Bosnia and Herzegovina, inter atia,
“decides on war and peace”*’. This provision, however, cannot be con-
sidered as relevant in this specific case for two main reasons. Firstly, by
its nature it constitutes a revision of the Constitution carried out contra
constitutionem in the form of a consolidation of the text of the Constitu-
tion — hence, the arguments presented in reference to Article 220 of the
Consolidated Constitution apply per analegiam (see para. 30 above). Sec-
ondly, the Consolidated Constitution of the Republic of Bosnia and
Herzegovina was passed in February 1993, i.e., almost a year after the
adoption of the “Decision on the proclamation of imminent threat of
war”, so that with respect to this concrete case it is irrelevant.

35. The preambie to the “Decision on the proclamation of an immi-
nent threat of war” states, inter afia, that it was taken “in accordance
with the provisions of Amendments LI and LXXII to the Constitution of
SR B-H”. In the wording of this Decision, therefore, Amendments LI
and LXXII appear as a concrete constitutional basis. The contents of
Amendment EXXII can hardly be linked to the “Decision on the prec-
lamation of imminent threat of war”, as this Amendment actually abro-
gates Amendment XVII to the Constitution of the Socialist Republic of
Bosnia and Herzegovina by stipulating that: “The provisions of Amend-
ment XVII to the Constitution of SR B-H on the Council of the Republic
shall cease to be valid.”*®? Prima facie, there ts a link between Amend-
ment LI and the “Decision on the proclamation of imminent threat of
war”, since the subject of the Amendment was the establishment of the
competences of the Presidency of the Socialist Republic of Bosnia and
Herzegovina. Amendment LI stipulated that:

“1. The Presidency of the Socialist Republic of Bosnia and Herze-
govina:

(1) represents the Socialist Republic of Bosnia and Herzegovina;

(2) reviews questions relating to the implementation of adopted
policies in the areas of all peoples’ defence, state security, social self-
protection and international co-operation and proposes to the
Assembly of SR Bosnia and Herzegovina the passage of appropriate

# Article 206 (5) of the consolidated text.
82 Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No. 21 of
31 July 1990.

110

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APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA}

measures to implement thase policies and, in the event of an emer-
gency preventing or seriously hamering the realization of the social
order as established by the Constitution, proposes to the Assembiy
of SR Bosnia and Herzegovina the adoption of necessary measures
to overcome the intervening disturbances;

(3) establishes the defence pian of the Republic and provides
appropriate guide-lines in conformity with the law,

(4) in accordance with the positions and proposals of the Assem-
bly of SR Bosnia and Herzegovina reviews matters related to the
participation of the Socialist Republic of Bosnia and Herzegovina in
the establishment and implementation of the foreign policy of the
Socialist Federal Republic of Yugoslavia, to co-operation between
the Republic and other Republics and Autonomous Provinces in the
area of international co-operation within the framework of the
adopted foreign policy of SFRY and international treaties, and, on
the basis of prior consultations within the Republic, proposes can-
didates for appointment as heads of diplomatic missions and informs
the Presidency of SFRY and the Assembly of SR Bosnia and Herze-
govina of its proposals;

(5) establishes, on the basis of prior consultations within the
Republic, proposals for candidates for the appointment as President
and Judges of the Constitutional Court of Bosnia and Herzegovina;

(6) establishes on the basis of prior consultations im the Republic,
the proposal of candidates for appointment as members of the
Council of the Republic;

(7) establishes proposals for decorations conferred by the SFRY
Presidency and confers decorations and other marks of honour of
the Republic in conformity with the law;

(8) pardons offenders, in conformity with the law;
(9) adopts the Rules of Procedure of the Presidency.” 5

In the light of the established competences of the Presidency of the
Socialist Republic of Bosnia and Herzegovina, prima facie, any accep-
tance of Amendment LI as a possible constitutional basis for passing the
“Decision on the proclamation of imminent threat of war” is out of the
question. Amendment LI gives no authorization whatsoever to the Presi-
dency to proclaim an imminent threat of war upon its own initiative or
upon the proposal of any other organ. In its paragraph 2, the said
Amendment establishes the competences of the Presidency “in the event
of extraordinary conditions preventing or seriously hampering the reali-

#4 Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No. 21 of
31 July 1990.

111

703 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA}

zation of the constitutionally established order”, but those conditions
could hardly include the proclamation of imminent threat of war. On the
one hand the term “extraordinary conditions” is far broader than the
term “imminent threat of war”. In Yugoslav constitutional terminology,
the term “extraordinary conditions” served to denote a state of affairs
provoked by natural disasters (Article 364 of the Constitution of the
Socialist Republic of Bosnia and Herzegovina enunciates as “extraordi-
nary conditions” events like “natural disaster, epidemics”). All powers
linked to a state of war or imminent threat of war were entirely in the
hands of federal organs. On the other hand, even on the hypothesis that
the competences of the Presidency on the basis of paragraph 2 of Amend-
ment LI included the question of “imminent threat of war”, the pro-
cedure by which the “Decision on the proclamation of imminent threat
of war” was passed could only be qualified as formaily unconstitutional,
as the cited paragraph of Amendment LI stipulates the right of the Presi-
dency in the case of extraordinary conditions “to propose to the Assem-
bly of SR B-H that it take necessary measures to eliminate the existing
disturbances”. Hence, the Presidency was not authorized to “take neces-
sary measures to remove the existing disturbances” (emphasis added) but
only to propose to the Assembly the taking of such measures. The pre-
requisites for such a procedure existed as, judging from the text of the
preamble of the “Decision”, the Assembly had convened when it made
the proposal for the proclamation of an imminent threat of war.

36. Consequentiy, bearing in mind that on the basis of Article 358 of
the Constitution of Bosnia and Herzegovina as amended by Amendment
LI (4 (8}) “war or imminent threat of war” was the constitutional con-
dition for the automatic continuation of the mandate of the President
of the Presidency and that in the light of the relevant provisions of
Article 314 of the Constitution of SR Bosnia and Herzegovina as amended
by Amendment LXXT and Amendment LI, the “Decision on the procla-
mation of imminent threat of war” was passed in contravention of the
Constitution by an unauthorized organ, the mandate of Mr. Alija Izet-
begovié as President of the Presidency could not have been automatically
continued after 20 December 1992.

37. The letter addressed by the Prime Minister of Bosnia and Herze-
govina to the Secretary-General of the United Nations on 1 March 1993,
i.e., 20 days before Mr. Alija Izetbegovic issued the authorization for the
institution of proceedings before the Court, reads inter alia:

“T also advised . . . that the mandate of Mr. Alija Izetbegovié as
President of the Presidency had expired. This is to demonstrate the
immediate need for the international community to assist not only in
protecting Bosnia and Herzegovina’s sovereignty and territorial
integrity but also in assuring that the country is governed in accord-
ance with its democratic and constitutional principles. I should be

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704 APPLICATION OF GENOCIDE CONVENTION (DISS, OP. KRECA)

grateful if you would have the text of the present letter and its annex
circulated as a document of the General Assembly, under agenda
item 143 and of the Security Council.” **

The Annex of this letter is “Letter dated 24 February 1993 from the
Prime Minister of Bosnia and Herzegovina to the Chairman of the Euro-
pean Affairs Subcommittee of the Senate Foreign Affairs Committee of
the United States of America”, and states inter alia:

“Furthermore, please be advised that the mandate of Mr. Alija
Izetbegovié as President of the Presidency of the Republic of Bosnia
and Herzegovina expired on 20 December 1992. He is presently
without constitutional authority to act in that capacity. The Presi-
dency, and not the President alone, is the representative body of the
Republic of Bosnia and Herzegovina. Only the Presidency can invoke
constitutional emergency powers, not the President alone. The Presi-
dent is merely primus inter pares. Like Mr. Silajdzié, Mr. Izetbegovié
does not speak for the Presidency as a whole with respect to the cur-
rent stage of the Vance/Owen talks, but only as one Muslim member
of the Presidency.” #5

In this connection, Mr. R. Zacklin, Director and Deputy to the Under-
Secretary-General in charge cf the Office of Legal Affairs, in a letter
addressed to the Registrar of the International Court of Justice on
25 March 1993, stressed infer alia that:

“Mr. Izetbegovié participated in the general debate of the last
session of the General Assembly as President of Bosnia-Herzegovina
and ne communication has been made to the United Nations since
then advising us that he is no longer the President. In the United
Nations and in the International Conference on the former Yugo-
slavia, Mr. Izetbegovié has been regarded and continues to be
regarded as the President of Bosnia-Herzegovina.” ®

Can the fact that “[iIn the United Nations and in the International
Conference on the former Yugoslavia, Mr. fzetbegovié has been regarded
and continues to be regarded as the President of Bosnia-Herzegovina”
change the legal order established by the Constitution of Bosnia and
Herzegovina?

The answer ta this question can only be negative, as if this were not the
case, we would find ourselves in the absurd situation of attributing to the
institution of recognition, which is in practice an eminently political act,
constitutional powers, the power to change the internal political structure
of a State. Another conclusion may be drawn however — that the inter-

34 Doc. A/47/899-8/25360, 5 March 1995.

83 Ibid. .

86 Letter dated 25 March 1993 addressed to E. Valencia-Ospina, Registrar, Interna-
tional Court of Justice, from R. Zacklin, United Nations Director and Deputy to the
Under-Secretary-General in charge of the Office of Legal Affairs.

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705 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

national community organized within the United Nations was in legal
error (error juris), judging from the meaning of the formulations used in
the aforementioned letter, with regard to the nature of the institution of
Head of State in the constitutional system of Bosnia and Herzegovina.

38. In the light of the relevant provisions of Bosnia and Herzegovina’s
internal law, it is evident that Mr. Alija Izetbegovié was without consti-
tutional authority to act in the capacity of President of the Presidency of
Bosnia and Herzegovina as of 21 December 1991. The relevance of that
fact cannot be denied in the domain of international law, as, in my view,
we are faced with a general legal principle according to which:

“the act of an official cannot juridically be set up as an act of State
uniess it was within the sphere of competency of that official. The act
of an incompetent official is not an act of the State.” #7

39. This general principle is also expressed in Article 8 of the Conven-
tion on the Law of Treaties (1969).

A measure taken by an official outside the sphere of competence of
that official is by definition a non-existent measure, a measure limited to
the factual sphere as it is devoid of legal effect. In that respect the quali-
fication contained in the commentary on Article 8 of the Convention on
the Law of Treaties is applicable per analogiam:

“where a person lacking any authority to represent the State in this
connection purported to express its consent to be bound by a treaty,
the true legal position was that his act was not attributable to the
State and that, in consequence, there was no question of any consent
having been expressed by it . . . the unauthorized act of the repre-
sentative is without legal effect” ®.

THIRD PRELIMINARY ORJECTION

40, The sedes materiae of the third preliminary objection lies in the state-
ment that Bosnia and Herzegovina’s proclamation of sovereignty and inde-
pendence was effected in an illegal manner in flagrant breach of the principle
of equal rights and self-determination of peoples; hence, no succession of
the Applicant to the Genocide Convention of 1948 could have been possible.

The Court finds, quite simply, that

“Bosnia and Herzegovina became a Member of the United Nations
following the decisions adopted on 22 May 1992 by the Security

87 The Presidmg Commissioner of the France-Mexican Mixed Claims Commission
(1924) in the Caire case (1929), cited in Bin Cheng, General Principles af Law as Applied
by International Courts and Tribunals, 1953, p. 205.

88 Draft Articles on the Law of Treaties with commentaries adopted by the ELC at its
Eighteenth Session, UNCLT, First and Second Sessions, Vienna, 26 March-24 May 1968
and 9 April-22 May 1969, Official Records, p. 13, para. 1.

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706 = APPLICATION OF GENOCIDE CONVENTION (DISS. OP, KRECA)

Council and the General Assembly, bodies competent under the
Charter”,

and indicates that

“Article XI of the Genocide Convention opens it to ‘any Member of
the United Nations’; from the time of its admission to the Organiza-
tion, Bosnia and Herzegovina could thus become a party to the Con-
vention. Hence the circumstances of its accession to independence
are of little consequence.” (Para. 19 of the Judgment.)

In my opinion, the legality of Bosnia and Herzegovina’s birth is far
from being a fact in the light of the relevant legal rules. It implicitly relies
on the concept of the so-called “process of dissolution” of Yugoslavia,
elaborated in the Opinions of the Arbitration Commission of the Con-
ference on Yugoslavia, which is not a legal term stricte sensu. This con-
cept is most aptly seen as a sort of metaphor where a State figures as a
kind of vessel from which its vital substance is trickling away and which,
through the will of an imaginary creator, is being transformed into the
tissue of a new State organism.

(This is eloquently shown by the position taken by the Arbitra-
tion Commission in relation to the date of succession of States in
the Yugoslav case. In its Opinion No. 11, the Commission took
the view:

“That the date upon which the States stemming from the Socialist
Federal Republic of Yugoslavia succeeded the Socialist Federal
Republic of Yugoslavia are:

— 8 October 1991 in the case of the Republic of Croatia and the
Republic of Slovenia,

— 17 November 1991 in the case of the former Yugoslav Republic
of Macedonia,

— 6 March 1992 in the case of the Republic of Bosnia and Herze-
govina” (International Conference on the Former Yugoslavia,
Arbitration Commission, Opinion No. 11, para. 10).

Thus the Commission claims that the succession here occurred in the
relations between the SFRY as the predecessor-State and the newly-
independent republics as the successor-States. In other words, it did
not take place uno ictu; rather, what is known as succession is in fact a
set of successions which occurred one after another between 8 October
1991 and 27 April 1992. The succession of Slovenia and Croatia has
not destroyed the international legal personality of the SFRY as the
predecessor-State. A contrario, Macedonia could not exit from the
SFRY and succeed SFRY at the same time. The same applies to Bos-
nia and Herzegovina, because this former federal unit, in the Commis-
sion’s view, also succeeded SFRY. Such an approach of the Commis-
sion could reasonably be explained by “the complex interaction between

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707 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

the deliberations of the Arbitration Commission and the political deci-
sions of the EC institutions and member States [which] is noteworthy”
(Conference on Yugoslav Arbitration Commission: Opinions on Ques-
tions Arising from the Dissolution of Yugoslavia, Introductory Note
by Maurizio Ragazzi, international Legal Materials, 1992, p. 1490). In
the light of the above, there exists a clear connection between such
qualification and the content of Article 1 (a) of the Draft Convention
submitted by President of the Conference proposing that “[n]ew rela-
tions between the Republics will be based on the following: fa) sov-
ereign and independent Republics with an international personality for
those who wish it, etc.”)

Of utmost importance is the fact that there exists a substantial connec-
tion, in fact a causal connection, between the legality of the birth of a State
and the status of a successor State in legal terms (see paras. 81-88 below).

In order to reach a conclusion as to whether Bosnia and Herzegovina
was established in the legal way, it is necessary to examine both the rele-
vant norms of international law and the internal law of SFRY, The rele-
vance of the internal Jaw of SFRY to that effect derives from the specific
nature of the norm of equal rights and self-determination of peoples in
multi-ethnic States (see paras. 44-46 above).

A. Relevance of international Law
to the Birth of States

41. A reply in the matter of relevance is often sought in the option for
one of the two mutually exclusive qualifications: birth of States as guestio
facti or as questio juris. Neither of these qualifications, taken on its own
merits and individually, really corresponds to the actual state of affairs,
in view of their oversimplification and untenable. segregation. The first
suggests that international law is indifferent to the issue of the birth of
States, that they are created in a legal vacuum, a sort of legal vacant
space, in a free interaction of power and opportunity elements. The
second, however, reduces the birth of States to legalistic procedures, to
a matter of the mere will of an imaginary international legislator, materi-
alled in the form of a State, independently of real social processes. In the
final analysis, the first statement reduces international law relative to the
birth of States to an ex post rationalization of actual developments and
thereby to its own negation, while the second takes a completely opposite
course, elevating international law to the level of a maker, a creator of
social phenomena.

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708 APPLICATION OF GENOCIDE CONVENTION (DISS, OP. KRECA)

The fundamental defect in the option for either of the two mutually
exclusive explanations is the confusion of twa dimensions involved in the
birth of States: the socio-political and the legal. As it is indisputable that
birth of States is a matter of realistic social processes from a socio-politi-
cal standpoint, so it is that the birth of States takes place in the environ-
ment of the international community. Thus, international law cannet
abdicate from the regulation of such a crucial issue of international life.
Shaw is right in observing that:

“[tlhe relationship . . . between factual) and legal criteria is a crucial
shifting one. Whether the birth of a new state is primarily a question
of fact or law and how the interaction between the criteria of effec-
tiveness and other relevant legal principles may be reconciled are
questions of considerable complexity and significance.” *

42. Since its inception international Jaw has never been or could have
been indifferent to the question of the birth of States. The substance and
nature of its rules have undergone modifications depending on the
achieved degree of advancement of international law. Grasso modo, the
rules of international law concerning the birth of States may be classified
into two groups:

— the first would comprise the rules of international law defining the State
ab intra, as a legal fact within the system of international law. In other
words, these rules of international law define what a State is. The very
definition 1s static and narrowed down to an enumeration of the con-
stituent elements of a State. On the whole, such a definition of a State is
founded on the principle of effectiveness and by this means international
law specifies the static, categorial meaning of the concept of a State.

— the second group would comprise the rules defining a State ab extra,
from the point of view of other relevant rules of international law.
While definition ab intra starts from a State as an isolated, static pheno-
menon, definition ab extra locates the State in the system of interna-
tional Jaw, linking its birth and functioning in the international com-
munity to other legal rules. In expressing the dynamic side of a concrete
issue concerning a certain State, the notion of a State ab extra includes,
in fact, principles and norms fundamental to the birth of States.
Those principles have accompanied practically the whole period of exis-
tence of international law. The birth of States, since the Westphalian
Peace Accord in 1648, has been justified by a principle-like balance of
power, legitimacy and interpretation of the “Holy Alliance”, the quasi-
legislative competences of super-powers, the principle of nationality,
and, during the twentieth century, the self-determination of peoples.

89 M. N. Shaw, International Law, 2nd ed., 1986, p. 126.

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709 APPLICATION OF GENOCIDE CONVENTION (DISS. GP. KRECA)

It may be said that the above principles basically derive from the con-
cept of legality.

43. It should be kept in mind, however, that the nature of the legality
concept has been changing with the development of international law.
That concept was based, for quite some time, upon subjective, elimina-
tory criteria, which recognized, in a community that tolerated un-
controlled resort to force and even to war, the property of a legislative
factor, meaning legality no more than in the formal sense of the word.
Determined dd casum, on the basis of the fulfilment of formal and pro-
cedural requirements, that legality was not siricio sensu legality, as
measured by the norms of a more developed internal law, but rather a
political decision in a more acceptable guise.

A basis for a radical change of attitude to the question of legality is
provided by the hierarchical division of international law according to
the criterion of the legal merit of its norms. The division of mternational
law into “lower” and “higher” law opened the way towards the concep-
tualization of peremptory norms of general international law (jus cogens),
effected by Articles 53 and 64 of the Convention on the Law of Treaties
of 1969. As Judge Ammoun put it in his separate opinion in the Barce-
fona Traction case (Second Phase, 1970}:

“through an already lengthy practice of the United Nations, the con-
cept of jus cogens obtained a greater degree of effectiveness, by rati-
fying, a8 an imperative norm of international law, the principles
appearing in the preamble to the Charter” *?, |

Jus cogens creates grounds for a global change in relations of State
sovereignty to the legal order in the international community and for the
establishment of conditions in which the rule of law can prevail over the
free will of States. As an objective, non-eliminatory norm, it constitutes a
material basis, a criterion for challenging the legality of individual acts in
the international community. Therefore, it essentially limits the impact of
effectiveness in international law. Effectiveness in a system with a defined
concept of legality may be legally accepted only in cases in which it does
not conflict with the norms that serve as criteria of legality. Within the
co-ordinates of the de jure order effectiveness versus legality is an incor-
rect approach, because to accept effectiveness as a rule

“would indeed be to apply a hatchet to the very roots of the law of
nations and to cover with its spurious authority an infinitive series of
international wrongs and disregard for international obligations” °L

ECF Reports 1970, p. 304.
1 LW. W. Verzijl, nterndtional Law in Historical Perspective, 1, 1968, p. 293.

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710 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

44. The concept of a material, homogeneous legality is unavoidably
reflected in the matter of the birth of States, This is suggested by an as yet
insufficiently advanced and stabilized international practice. Let us take
the case of Southern Rhodesia. In that case, the criterion of effectiveness
was fully met, as the white, minority government, exercised effective rule
over the territory. But, in spite of that, United Nations Security Council
resolution 217 of 20 November 1965 established that the declaration of
independence had “no legal validity” and national government had been
proclaimed by “illegal authorities’. Such an attitude towards Southern
Rhodesia, which on the basis of the ab intra criterion, was a State beyond
any doubt, was governed by the intention “to allow the people of South-
ern Rhodesia to determine their own future consistent with the objectives
of General Assembly resolution 1514 (XV}” (1960)7*. United Nations
General Assembly resolution 1514 of 14 December 1960, entitled “Dec-
laration on the Granting of Independence to Colonial Countries and
Peoples” established, inter alia, that

“All peoples have the right to self-determination. By virtue of
that right they freely determine their political status and freely
pursue their economic, social and cultural development.” (Para. 2.) -

In that way the practice of States confirmed that:

“in the case of an entity seeking to become a state and accepted by
the international community as being entitled to exercise the right of
self-determination, it may well be necessary to demonstrate that the
internal requirements of the principle have not been offended, One
cannot define this condition too rigorously in view of state practice
to date, but it would appear to be a sound proposition that system-
atic and institutionalised discrimination might invalidate a claim to
statehood.” ™

However, it would be an overstatement to assert that the introduction of
the concept of material legality created a harmonious unity between the
ab intra and ab extra definitions of a State. This has not been achieved
due to the chronic institutional insufficiency of the international order
which, acting in the environment of a primarily political community —
which is what the international community virtually is — often leads to
the prevalence of policy over law. Hence, the discrepancy between inter-
national law and international order, since norms have not always been
applied as they should have been in view of their substance, but more or
less under the influence of non-legal, political views. Indisputably, the
achievement of the aforementioned harmony constitutes not only an aim
of but also a condition for the establishment of international order as a
de jure order in this particular context.

32 Security Council resolution 217 (1965), 20 November 1965, para. 7.
33 M. N. Shaw, op. cir, p. 132.

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711 APPLICATION OF GENOCIDE CONVENTION (DISS. OP, KRECA)

B. The Legality of the Proclamation of Bosnia and Herzegovina’s
independence in the Light of the Internal Law of the Socialist Federal
Republic of Yugoslavia

I, Relevance af the internal law of the Socialist Federal Republic of
Yugoslavia in this particular case

45. The original international legal norm of self-determination of
peoples is both incomplete and imperfect, at least when it concerns sub-
jects entitled to self-determination in multi-ethnic States and their exer-
cise of external self-determination infringing upon the territorial integrity
of a State, Given its incompleteness, the original norm of self-determina-
tion of peoples is rendered inapplicable in its respective parts to certain
practical situations and constitutes a sort of decorative, empty normative
structure. Interested entities often refer to it, but it can function only out-
side the legal domain, as a convenient cover for an eminently political
strategy, based on opportuneness and the balance of power.

This implies a need to see the norm of the right to external self-deter-
mination in the States composed of more than one people as a complex
norm consisting of two parts: on the one hand, origina! international
legal norms of the right of peoples to external self-determination, and, on
the other, relevant parts of the internal law of the given State. In this con-
text, the original international legal norm of the right of peoples has the
role of a general, permissive norm, which assumes an operative character,
the property of a norm which may become effective in the event that the
internal law of a multi-ethnic State has stipulated the right to external
self-determination if it defines the entitlement to it, as well as the pro-
cedure for its exercise. In other words, the relevant provisions of internal
law are ad casum an integral part of the norm of the right of peoples to
external self-determination. Only in this way does the original interna-
tional legal norm of the right to external self-determination become
applicable at the level of the fundamental premise of the rule of law.

The necessity for such a relationship between international and inter-
nal laws is rightfully suggested by the following:

“Tf the rule of law is to be made effective in world affairs it must
cover a wide range of increasingly complex transactions which are
governed partly by international and partly by municipal law .. . It
is therefore important that international courts and tribunals should
be in a position, when adjudicating upon complex imternational
transactions, to apply simultaneously the relevant principles and
rules of international law and the provisions of any system of
municipal law which may be applicable to the particular transaction
... One of the essential functions of international law and interna-
tional organisation is to promote the rule of law within as well as
among nations, for only on the basis of the rule of law within
nations can the rule of law among nations develop and be made

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712 APPLICATION OF GENOCIDE CONVENTION (DISS. GP. KRECA)

secure. International courts and tribunals can contribute to this
result more effectively if the extent to which the interpretation and
appheation of municipal law in the course of their work is a normal
and necessary incident of international adjudication on complex
transactions is more fully understood.” ™4

Positive international law free of Manicheanism and the antagonistic
burden of dualistic-monistic theoretical controversy has firmly embarked
upon this course. One can think of a long list of rules of positive inter-
national law that rest on the symbiosis of an international norm contain-
ing both implicit and explicit references to the internal law and the
respective norms of that internal law. To illustrate, Article 46 of the Con-
vention on the Law of Treaties (1969) stipulates that a State may invoke
the fact that its consent to be bound by a treaty has been expressed in
violation of its internal law regarding competence to conclude treaties as
invalidating its consent in a case where that “violation was manifest and
concerned a rule of its internal law of fundamental importance”. Or in
the law of the sea, where the subject of protection and preservation of the
marine environment is entirely regulated on the basis of a symbiosis of
international and internal laws. Exempli causa, Article 207 (1) (Pollution
from Land-Based Sources) of the Convention on the Law of the Sea
stipulates :

“States shall adopt laws and regulations to prevent, reduce and
control pollution of the marine environment from land-based sources
..., taking into account internationally agreed rules, standards and
recommended practices and procedures.”

Reliance on internal law as a criterion for undertaking international
acts is not unknown in the diplomatic practice of States. One can men-
tion the practice of the United States inaugurated by President Wilson
according to which a new test of “constitutionality” making the “coming
into power” of a new government by constitutional means is a prerequi-
site for recognition of that government by the United States*?.

46. Thus, in the present case, this is not a matter of a conflict between
a norm of international and a norm of internal law, a type of case adju-
dicated by several international courts (Greco-Bulgarian “Communities”,
P.C.LJ., Series B, No. 17, p. 32; Free Zones of Upper Savoy and the
District of Gex, P.C.I.J., Series A, No. 22, p. 167; Treatment of Polish
' Nationals and Other Persons of Polish Origin or Speech in the Danzig
Territory, P.C.LJ., Series A/B, No. 44, p. 24), but rather of the applica-
tion of an international norm of a complex structure, namely a norm that
incorporates relevant norms of internal law relating to external self-

54 €, Wilfred Jenks, The Prospects of International Adjudication, 1964, p. 547.
55 M. Whiteman, Digest of International Law, Vol. 2, p. 69.

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713 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

determination. I am of the view that, in this case, the reasoning of the
Court in the case concerning Brazilian Loans (1929) is relevant.

In the Brazilian Loans case the Court pointed out, inter alia, that

“[olnce the Court has arrived at the conclusion that it is necessary to
-apply the municipal law of a particular country, there seems no
doubt that it must seek to apply it as it would be applied in that
country. It would not be applying the municipal law of a country if
it were to apply it in a manner different from that in which that law
would be applied in the country in which it is in force. |

It follows that the Court must pay the utmost regard to the deci-
sions of the municipal courts of a country, for it is with the aid of
their jurisprudence that it will be enabled to decide what are the
rules which, in actual fact, are applied in the country the law of
which is recognized as applicable in a given case. If the court were
obliged to disregard the decisions of municipal courts, the result
would be that it might in certain circumstance apply rules other than
those actually applied; this would seem to be contrary to the whole
theory on which the application of municipal law is based.

Of course, the Court will endeavour to make a just appreciation of
the jurisprudence of municipal courts. If this is uncertain or divided,
it will rest with the Court to select the interpretation which it con-
siders most in conformity with the law. To compel the Court to dis-
regard that jurisprudence would not be in conformity with its func-
tion when applying municipal law.” °6

2. Constitutional concept of the Yugoslav State — constitutional con-
cept of Bosnia and Herzegovina as a federal unit

47. In order to elucidate the constitutional concept of the Yugoslav
State and that of Bosnia and Herzegovina as a federal unit, I will quote
some relevant provisions of the constitutions of the Yugoslav State that
suggest a conclusion on its nature and, more specifically, on the status of
its peoples.

48. The first constitution of the Yugoslav State — the constitution of
the Kingdom of Serbs, Croats and Slovenes, promulgated on 28 June
1921, stipulated that the Kingdom “is a state of Serbs, Croats and
Slovenes, a constitutional, parliamentary and hereditary monarchy. The
official state name is: Kingdom of Serbs, Croats and Slovenes.” Article 3
of the Constitution provided that the “official language of the Kingdom
will bé Serb-Croat-Slovenian”.

49, The Constitution of the Kingdom of Yugoslavia of 3 September
1931, did not indicate expressis verbis its constitutive peoples. They were

96 PCLT, Series A, Ne. 21, p. 124.

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7i4 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

mentioned only indirectly, as, for example, in the provision of Article 3 of
the Constitution stipulating that the “official language of the Kingdom
[shall be] Serbian-Croat-Slovenian”.

50. The resolution constituting Yugoslavia on the federal principle,
approved by the Second Conference of the Anti-Fascist Council of
National Liberation of Yugoslavia on 29 November 1943, said, inter alia,

“By virtue of the right of each people to self-determination includ-
ing die right to separation or unification with other peoples, ... the
Anti-Fascist Council of National Liberation of Yugoslavia, passes
the following

RESOLUTION

(2) To effectuate the principle of sovereignty of the peoples of
Yugoslavia, .. . Yugoslavia is being constructed and will be con-
structed on the federal principle which will secure full equality to
Serbs, Croats, Slovenians, Macedonians and Montenegrans, id est

peoples of Serbia, Croatia, Slovenia, Macedonia, Montenegro and
Bosnia and Herzegovina .. "9

51. The first Constitution of the federal Yugoslavia of 1946 in its
Article | defined the Federal Peoples’ Republic of Yugoslavia as

“a federal peoples’ State in the form of a Republic, a community of
equal peoples, who have expressed their will, based on the right to
self-determination, including the right to separation, to live together
in a federal State”.

52. In the second Constitution of 1963, the Federation was defined
as a:

“Federal state of freely unified and equal peoples and a socialist
democratic community based on the rule of working people and self-
government.”

The Constitution of the Socialist Republic of Bosnia and Herzegovina
of 1963, laid down in its Basic Principles, inter alia, that,

“Linked throughout their common history by their living together,
by their aspirations and struggle for freedom and social progress,
Serbs, Muslims and Croats, overcoming the attempts of foreign
powers and local reactionary forces, have come together for the first
time in freedom, equality and brotherhood in their Republic, which
became the political and social form of both their unity and mutual
equality and their equality with the other peoples of Yugoslavia with

*? Decision on building up Yugoslavia on the federal principle, Official Gazette af DFJ,
No. 1/1945 (emphasis added).

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715 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

whom they voluntarily entered a common state on the basis of the
right to self-determination, including the right to separation: the
Federal Peoples’ Republic of Yugoslavia thereby secured full equal-
ity and conditions of comprehensive national development, material
and cultural progress for an overall socialist transformation.”
(Emphasis added.) |

Article | of the Constitution of Bosnia and Herzegovina qualified it as
“a state socialist democratic community of peoples of Bosnia and Herze-
govina based on the rule of working people and self-government”.

53. The Constitution of the SFRY of 1974 begins with Chapter I of
the Basic Principles, which was worded as follows:

“The peoples of Yugoslavia, starting from the right of each nation
to self-determination, including the right to secession, on the grounds
of their will freely expressed in the joint struggle of all peoples and
nationalities in the national hberation war and socialist revolution
. have created a socialist federal community of working people —
the Socialist Federal Republic of Yugoslavia .. .”.

In Chapter VII of the Basic Principles, it is stated, inter alia, that the
Socialist Federal Republic of Yugoslavia upholds:

— the right of each people freely to determine and build its social
and political order by ways and means freely chosen;

— the right of people to self-determination and national indepen-
dence and the right to wage a liberation war, in pursuit of these
causes:

— regard for generally accepted norms of international law”.

The Constitution of the SFRY in its operative part, defined it as a

“federal State, a state community of freely united peoples and their
socialist Republics .. . based on the rule and self-management of
the working class and of all working people and the socialist self-
managed democratic community of working people and citizens
and equal peoples and nationalities” (Art. 1 of the Constitution).

54. The Constitution of 1974 of the Socialist Republic of Bosnia and
Herzegovina laid down in its Article 1:

“The Socialist Republic of Bosnia and Herzegovina is a socialist
democratic State and socialist self-managed democratic community
of working people and citizens, peoples of Bosnia and Herzegovina
— Muslims, Serbs and Croats, with the members of other peoples
and nationalities, who live in it, based on the rule and self-manage-

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716 APPLICATION OF GENOCIDE CONVENTION (DISS. OP, KRECA)

ment of the working class and all working people and on sovereignty
and equality of the peoples of Bosnia and Herzegovina and the mem-
bers of other nations and nationalities, living in it,

The Socialist Republic of Bosnia and Herzegovina is an integral
part of the Socialist Federal Republic of Yugoslavia.” (Emphasis
added.)

Article 2 of the Constitution of Bosnia and Herzegovina stipulates:

“Working people and citizens, peoples of Bosnia and Herzegovina
— Serbs, Croats and Muslims and members of other nations and
nationalities shall exercise their sovereign rights in the Socialist
Republic of Bosnia and Herzegovina, except for those rights which
the Constitution of the SFRY has designated to be exercised in the
Socialist Federal Republic of Yugoslavia in the common interest of
working people and citizens, peoples and nationalities.” (Emphasis
added.)

The Preamble says, inter alia, that

“peoples of Bosnia and Herzegovina — Muslims, Serbs and Croats
. along with workers and other working people and citizens
and peoples and nationalities in other socialist republics and socia-
list autonomous provinces of the Socialist Republic of Yugo-
slavia achieved significant success in . . . advancing . . . unity and
equality...”
and further states that

“the social and political order of Bosnia and Herzegovina is based
on the principles laid down in the SFRY constitution by the peoples
and nationalities and working people of Yugoslavia”.

The Basic Principles of the Constitution stipulate that

“The peoples of Bosnia and Herzegovina — Serbs, Muslims and
Croats ., . with other peoples and nationalities of Yugoslavia, . . .
based on the right to self-determination including the right to seces-
sion, have voluntarily came together in the common State — the
Socialist Federal Republic of Yugoslavia, and have thereby secured
full equality and the conditions for comprehensive national develop-
ment...” (Chapter I of the Basic Principles.)

Chapter IJ of the same Basic Principles stipulates, inter alia, that

“the peoples of Bosnia and Herzegovina — Croats, Serbs and Mus-
lims and members of other peoples and nationalities shall exercise
within the Socialist Republic of Bosnia and Herzegovina, as a State
and self-managed community, their sovereign righis and further their
class and ational interesis.” (Emphasis added.)

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717 APPLICATION OF GENOCIDE CONVENTION (DISS. OP, KRECA)

It is made particularly clear that

“Starting from the principles . . . of respect for freedom and inde-
pendence of peoples, active peaceful coexistence, openness to the
world and the need for the development of comprehensive inter-
national cooperation, the Socialist Republic of Bosnia and Herze-
govina shall participate, on an equal footing with other republics
and autonomous provinces, in the exercise of the foreign policy of
the Socialist Republic of Yugoslavia.” (Chapter X of the Basic Prin-
ciples.)

On 31 July 1990 the Assembly of the Socialist Republic of Bosnia and
Herzegovina approved Amendments LIX-LXXX to the Constitution of
the Socialist Republic of Bosnia and Herzegovina (Official Gazette of the
Socialist Republic of Bosnia and Herzegovina, No. 21 of 31 July 1990).
Amendment LX replaced paragraph 1 of Article 1 of the Constitution
of the Socialist Republic of Bosnia and Herzegovina and reads as
follows:

“1, The Socialist Republic of Bosnia and Herzegovina is ¢ demo-
cratic sovereign State of equal citizens, peoples of Bosnia and Herze-
govina — Muslims, Serbs and Croats and members of other peoples
and nationalities living in it.”

Amendment Li stipulates that:

“All peoples and nationalities will be guaranteed proportionate
representation in the assemblies of socio-political communities,
bodies elected by them in the Presidency of SR. B-H and in other
State organs” (this amendment is added to Article 3 of the Consti-
tution of the Socialist Republic of Bosnia and Herzegovina).

Paragraph 10 of Amendment LXX stipulates that:

“The Assembly of SR Bosnia and Herzegovina shall form a Coun-
cil to deal with the question of the exercise of the equality of peoples
and nationalities of Bosnia and Herzegovina. Members of the Coun-
cil will be appointed from the ranks of deputies — members of the
nations of Bosnia and Herzegovina — Muslims, Serbs and Croats in
equal proportion, and respective number of deputies from the ranks
of other peoples and nationalities and others who live in Bosnia and
Herzegovina. The Council shall reach its decision by a consensus of
the members of all nations and nationalities. The Council shall spe-
cifically discuss the issues relating to the equality of languages and
alphabets; the organization and activities of cultural institutions of
particular importance for the expression and affirmation of the
national specificities of individual peoples and nationalities and the
promulgation of regulations to implement constitutional provisions
expressly determining the principles of equality among peoples and
nationalities.” (Emphasis added.)

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718 APPLICATION OF GENGCIDE CONVENTION (DISS. OP. KRECA}

55. A consistently undeniable fact, underlying the broad spectrum of
changes that have affected the Yugoslav State since its inception in 1918,
was a point of departure, explicit or implicit, of all constitutional solu-
tions: that is that Yugoslavia has primarily been a community of peoples
since its birth.

The subject of changes was the number of constitutive, State-making
peoples. At the moment of its inception in 1918, Yugoslavia was a com-
munity of three constitutive peoples (Serbs, Croats and Slovenes}. The
Federal Constitution of 1946 recognized the status of constitutive peoples
of Macedonians and Montenegrans, who used to be taken to be parts of
the Serbian national corps. Finally, the Constitution of 1963 included
Muslims in the ranks of constitutive peoples.

56. Since the formation of the Yugoslav State as a federation this con-
stant has governed fully, and without any reservation, the federal unit of
Bosnia and Herzegovina. Hence, the widely used but somewhat literary
qualification of Bosnia and Herzegovina as the “small Yugoslavia”,
where the essential characteristics of the Yugoslav federation are
expressed in a narrow margin,

Federal Yugoslavia was formed under the resolution of the Second
Conference of the Anti-Fascist Council of National Liberation of Yugo-
slavia in 1943, as a community of sovereign and equal peoples, while sub-
sequent constitutional intervention created republics, as federal units.
Thus, like the rest of the republics, Bosnia and Herzegovina was formally
brought into being by its Constitution of 1946, although temporary
authorities had been created since the adoption of the resolution estab-
lishing Yugoslavia as a federal State.

In the light of both the federal Constitution of 1946 and the republican
Constitution promulgated the same year, Bosnia and Herzegovina was
formed as a State of Serb and Croat peoples. Muslims participated in the
formation of the Yugoslav federation and in Bosnia and Herzegovina
itself as an integral part of the Serb or Croat peoples, or more precisely as
the Serbs or Croats of Muslim religion, not as a constitutive people,
endowed with the right to self-determination.

57. The constitutional solutions of 1963 changed the constitutional
position of Muslims, promoting them into a constitutive people. In keep-
ing with this change Bosnia and Herzegovina was defined by its republi-
can Constitution of 1963 as the “state socialist democratic union of
peoples of Bosnia and Herzegovina . . .”. The Basic Principles of the
Constitution named as “peoples of Bosnia and Herzegovina”: “the Serbs,
Muslims and Croats”. This status was reserved for the Muslims in the
constitutional regulations of 1974.

In other words, the Muslims were turned into a constitutive nation ex
post, after Bosnia and Herzegovina had been formed, on the basis of the
exercised right to self-determination of Serbs and Croats, as a federal unit

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719 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

within the Yugoslav federation. Does this fact influence the scope and
quality of the rights of Muslims as a constitutive nation? The reply can
only be in the negative. Having been granted the status of a constitutive
nation, the Muslims came into possession of absolutely equal rights in
the same way as Serbs and Croats in Bosnia and Herzegovina. The full
equality of rights of constitutive peoples was accentuated in continuo by
all constitutional solutions, whether federal or in Bosnia and Herze-
govina, between 1946 and 1974. This was effected not only by the use of
corresponding terms (exempli causa, “the right of each people”; “full
equality”; “sovereignty and equality of peoples”) but by inversion in
quoting the names of peoples, strikingly present in the constitutions of
Bosnia and Herzegovina, so as to stress both in substance and diction
the full equality of constitutive peoples. in concreto, equality 1s both
an explicit and implicit reference to the right of “each nation to self-
determination including the right to secession or unification with other
peoples”.

58. in the light of constitutional solutions and consequent legal and
political practice resulting in the qualification of Bosnia and Herzegovina
as a federation of nations, personal federation sui generis was the clasest
to the actual state of affairs. Such a qualification was justified by several
facts of fundamental importance.

Firstly, in the light of both norms and facts, Bosnia and Herzegovina
was a community of three peoples. The Republic of Bosnia and Herze-
govina was not, unlike the rest of the Yugoslav republics, a penuine,
original form of the State personality of the Yugoslav State, but was cre-
ated ex post, as a relevant form of internal administrative and territorial
division of the State in the federal phase of its existence. Ratione valorent,
Bosnia and Herzegovina was not only constituted but also functioned, in
political and legal terms, as a community of peoples. It suffices to point
to the composition of the bodies of authority in the Socialist Republic of
Bosnia and Herzegovina. The issue of cadres in Bosnia and Herzegovina
was governed by the “Social compact on personal policy in SR of Bosnia
and Herzegovina”#, Article 7 (3) thereof bound the signatories of the
compact to secure:

“the proportionate and, in particular, adequate representation of
peoples and nationalities on the assemblies of socio-political com-
munities, state organs and bodies of socio-political organizations in
the Republic and election to posts with a term of office of one or two
years from among the ranks of all the peoples”.

SE Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No. 34 of
8 November 1982.

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720 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

Such a solution was also legally sanctioned. Article 170a of the Law on
the Changes and Amendments of the Law. on State Administration”?
stipulated that any

“Official as head of an administrative agency and his deputy may
be recalled before the end of their respective terms if so required by
eligibility criteria for the equal representation of peoples . . . of
Bosnia and Herzegovina in State administration and in pursuance
of personnel policy”.

An identical provision is contained in Article 175a of the same law
relating to high political officials.

The above facts suggest that Bosnia and Herzegovina was phenomeno-
logically only apparently a federal unit, while substantively and materially
it was a union of its constitutive peoples.

Secondly, the SFRY Constitution of 1974 and the Constitution of the
Socialist Republic of Bosnia and Herzegovina promulgated the same year,
defined the right to self-determination as a subjective, collective right of
peoples. Such a provision was consigned in earlier constitutions. It derives
from the very nature of the matter. The subject entitled to self-determina-
tion is, by definition, a people. It is yet another question that, on the one
hand, the right to self-determination is exercised on the territory in ques-
tion, and that, on the other, in the circumstances of a territorialized inter-
national community the consequences of the exercised right to self-deter-
mination are territorialized. Overlapping of the right to self-determination
and territorialization occurs, as a rule, in single-people communities, and
it follows that formulations which recognize the right to a territorial
entity are colloquial formulations. However, in multi-ethnic communities
composed of peoples provided with equal rights, a territory is exclusively
an area where equal rights of self-determination are exercised.

Thirdly, Bosnia and Herzegovina, as a federal unit, was not equipped
with a right to self-determination that would include the right to secession.

Fourthly, Bosnia and Herzegovina likewise possessed none of the clas-
sic attributes of statehood which are characteristic of federal units in
modern federations. Although a “constitutive element of the federation”
Bosnia and Herzegovina was, in the structure of Yugoslav federalism like
other federal units, designed — both constitutionally and legally — in a
specific way. After 1963, it had dichotomic properties: on the one hand,
it possessed the powers characteristic of most of the other federal units in
contemporary federations, and, on the other, it represented the socialist

% Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No. 10 of
28 March 1991.

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721 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA}

self-managed democratic community of working people and citizens,
peoples of Bosnia and Herzegovina — Muslims, Serbs and Croats — and
members of other peoples and nationalities living in it, based on the rule
and self-management of the working class and all working people, and
the sovereignty and equality of peoples of Bosnia and Herzegovina
(Article 1 of the Constitution of the Socialist Republic of Bosnia and
Herzegovina of 1974). That dichotomy of Bosnia and Herzegovina’s per-
sonality within the Yugoslav constitutional system is a result of a funda-
mental ideological overtone of the premise that a State, as a class cre-
ation, is a passing historical phenomenon, incompatible with the nature
of a socialist society and consequently doomed to wither away. “De-etati-
zation” was the main motto of the Yugoslav constitutional approach after
the introduction of self-management as a basic social relationship —
society versus State was the fundamental political orientation which
operated even in the domain of legal norms. “De-etatization” gave birth
to “working people and peoples” so that federalism was no longer
“sovernmental” but “sociopolitical”. Mutual relations between the parts
of the dichotomy of Bosnia and Herzegovina attributed more weight to the
part representing the self-managing community. This is clearly suggested by
the constitutional positioning of self-management and the ensuing social
ownership over the means of production, as the basic social relationship
(Chapter II of the Basic Principles of the Constitution of the Socialist
Republic of Bosnia and Herzegovina of 1974). Hence, exempli causa Bos-
nia and Herzegovina itself is defined as the “socialist self-managed demo-
cratic community” (Article 1 of the Constitution of the Socialist Republic
of Bosnia and Herzegovina of [974), while “the Assembly is an organ of
socialist self-management and the highest deliberative body in the domain
of rights and obligations of the socio-political community” {Article 136
of the Constitution of Bosnia and Herzegovina).

The fact that Bosnia and Herzegovina is essentially a community of
peoples has been confirmed by the consolidated text of the Constitution of
Bosnia and Herzegovina adopted in March 1993 after the proclamation of
the sovereignty and independence of that federal unit as well as by a series
of instruments on the international plane. Article 1 of that consolidated text
defines the Republic of Bosnia and Herzegovina as a “sovereign and inde-
pendent state . .. of the peoples of Bosnia and Herzegovina — Moslems,
Serbs, Croats and members of other peoples living in it”. The precise sense
of that wording may be ascertained when one takes into account the inter-
pretative provision of Article 269 of the refined text of the Constitution
(Transitional Final Provisions). Article 269 provides that:

“The term used in the Constitution ‘members of other peoples
who live in the Republic’ or ‘members of other peoples who live in it’
denotes the nationalities of national minorities in Bosnia and Herze-
govina.”

The above-mentioned text of the Constitution likewise conserved the
substantial characteristics of Bosnia and Herzegovina as a personal

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722 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

federation. On the basis of the principle of the “equality of the peoples
of Bosnia and Herzegovina” it is stipulated that:

“In the assemblies of the socio-political communities, and in the
bodies elected by them of the Presidency of the Republic of Bosnia
and Herzegovina, proportional representation shall be guaranteed
to the peoples of Bosnia and Herzegovina and to the other peoples
living in it.” 1°

All the plans for the constitutional arrangements of Bosnia and Herze-
povina submitted during the negotiations about the peaceful solution of
the conflict in Bosnia and Herzegovina start from the qualification of
Bosnia and Herzegovina as a community of peoples.

In the draft “Constitutional Structure for Bosnia and Hercegovina”,
submitted by the Co-Chairmen on 27 October 1992, and on 16 Novem-
ber specifically endorsed by the Security Council (resolution 787 (1992)
para. 1} (the so-called Vance-Owen Plan), it is said, inter alia, that:
“fc} The constitution is to recognize three ‘constituent peoples’, as
well as groups of ‘others’”'°!. Article 1 of Chapter | of the “Constitu-
tional Arrangements of the Union of Republic of Bosnia and Herce-
govina” submitted by the Co-Chairmen Owen and Stoltenberg in Sep-
tember 1993, envisaged that:

“(t]he Union of Republic of Bosnia and Hercegovina is composed of
three Constituent Republics and encompasses three constituent
peoples: the Muslims, Serbs and Croats, as well as a group of other
peoples”? 102,

In the Preamble to Annex 4 of the Dayton Agreement “Bosniacs, Croats,
and Serbs” are qualified as constituent peoples (A/50/790/$/19953/999,
p. 59). So it can be said that the fact that Bosnia and Herzegovina is
essentially a community of peoples is recognized on an international
plane. |

3. The promulgation of Bosnia and Herzegovina as a sovereign State

59, In the part of the Memorial entitled: “The International Status of
Bosnia and Herzegovina”, “{a) The alleged absence of statehood of Bos-
nia and Herzegovina”, the Applicant, summing up its views of the subject
matter, states:

“The existence of the main elements in this respect has been
summed up by the Arbitration Commission in its Opinion No. 11 of
16 July 1993:

190 Article 3 (1.3) of the refined text of the Constitution of the Republic of Bosnia and
Herzegovina. ‘
101 JCFY/6, Annex J, $/25403.

193 Agreement relating to Bosnia and Herzegovina, ICFY, Appendix I.

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723 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

‘in a referendum held on 29 February and 1 March 1992, the
majority of people of the Republic have expressed themselves in
favour of a sovereign and independent Bosnia, the result of the
referendum was officially promulgated on 6 March, and since that
date, notwithstanding the dramatic events that have occurred in
Bosnia and Herzegovina, the constitutional authorities of the
Republic have acted like those of sovereign state in order to main-
tain its territorial integrity and their full and exclusive powers’.” !°?

60. Two conditions should have been met to make the promulgation
of sovereignty and independence of Bosnia and Herzegovina legally
perfect, in the light of internal law of SFRY, as follows:

first, that Yugoslav law should have provided for the right to secession of
federal units; and

second, that the procedure prescribed by the Constitution and law should
have been observed, for,

“[wlhether the federation dissolves into two or more states also
brings into focus the doctrine of self-determination in the form of
secession. Such a dissolution may be the result of an amicable and
constitutional agreement or may occur pursuant to a forceful exer-
cise of secession. In the latter case, international legal rules may be
pleaded in aid, but the position would seem to be that (apart from
recognised colonial situations) there is no right of self-determination
applicable to independent states that would justify the resort to
secession.” 194

61. The Yugoslav federal units. possessed no right to secession (jus
secessionis}, beyond any doubt. The right to self-determination was
absolutely reserved for constitutive nations (see paras. 48-56 above).

Tn the part relating to external self-determination, the provisions of the
SFRY constitution offer the conclusion that the right to external self-
determination had been fully exercised.

To begin with “the right to self-determination, including the right to
secession” was formulated in the past tense in the SFRY Constitution, as
in all previous constitutions of the federal Yugoslavia. Then, the right in
question was located in the Basic Principles of the Constitution and there
was no mention of it in the operative provisions of the Constitution.
Finally, neither the Constitution nor the law envisaged any procedure for
an exercise of the right to self-determination. In other words, the consti-
tutive nations of Yugoslavia exercised the right to external self-determi-
nation at the time of the formation of the federal Yugoslavia. Once they
had decided to live in a common State they dispensed with that right,
which from that time on constituted a legal merit of existence of the com-

103 Memorial, para. 4.2.1.10.
104M. N. Shaw, International Law, 1986, p. 139.

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724 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

mon state, its validus titulus, but not a living, topical right to be resorted
to at will. This does not mean, however, that the issue of the right to
external self-determination was closed for good. It could, like other
issues, have been redefined in the guaranteed constitutional procedure.

The Constitutional Court of Yugoslavia, as the main agent securing
constitutionality and legality in the constitutional system of SFRY, under-
scored in its decision IU No. 108/1-91 (Official Gazette of SFRY,
No. 83/91) that, inter alia:

“this right [right to self-determination including the right to seces-
sion] may be exercised only under conditions and in a manner io be
determined in conformity with the SFRY constitution and the right of
peoples of self-determination including the right to secession —
under an enactment promulgated by the SFRY Assembly or in
agreement among the peoples of Yugoslavia and their republics”
(emphasis added).

Therefore, in the light of the relevant provisions of the SFRY Constitu-
tion, the ruling of the Constitutional Court of Yugoslavia reads as fol-
lows:

“any enactment of a republic that declares the republic to be a sov-
ereign and independent state — is an unconstitutional change of the
state order of Yugoslavia, .e., an act of secession, which, by virtue
of the decision of the Constitutional Court of Yugoslavia can have
no legal effect” 195,

The proposal to resolve the controversies surrounding the exercise of the
right to external self-determination constitutione artis, namely via a cor-
responding constitutional revision, was contained in the “Concept for the
Future Organization of the State proposed by a Working Group com-
prising Representatives of all the Republics as a basis for further Talks
between the Republican President and the State Presidency”.

Starting from the basic premise that

“The Yugoslav state community, seen as a federal state of equal citi-
zens and equal peoples and their republics [footnote commentary:
Kasim Trnka from Bosnia and Herzegovina proposed that the repub-
lics be placed first] and as a democratic state, will be founded on
human and civil rights and liberties, the rule of law and social justice”,

105 Reply of the Constitutional Court of Yugoslavia to the question of Lord Carrington
whether it was a matter of dissolution or secessian — referred to by the Arbitration Com-
mission of ICFY, No. SU 365/91.

133

725

the

APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA}

“Concept” contains a part entitled “Proposed Procedure for Dis-

association from Yugoslavia” which reads:

134

“In connection with initiatives in certain republics for secession
from Yugoslavia, that is, the ‘disunion’ of the country, and in view
of the general demand for a peaceful, democratic and constitutional
resolution of the constitutional crisis, the question of procedure
arises with regard to the possible realization of these initiatives.

The aim of the initiatives is the withdrawal of certain republics
from the Socialist Federal Republic of Yugoslavia. They are based
on the permanent and inalienable right of peoples te self-determina-
tion and should be constitutionally regulated.

The right of peoples to self-determination, as one of the universal
tights of modern law, is set out in the basic principles of the SFRY
Constitution. .

However, the realization of the right of peoples to secession, which
includes the possibility of certain republics’ withdrawal from the
SFRY, is not regulated by the SFRY Constitution. It is therefore
necessary to amend the SFRY Constitution in order to create a basis
jor exercising this right.

Revision of the SFRY Constitution on these lines should be based
on the democratic nature of the entire process of statement of views,
the equality of the Yugoslav nations, the protection of fundamental
human and civil rights and freedoms, and the principle of the peace-
ful resolution of all disputes.

In keeping with the above, appropriate amendments should be
made to the SFRY Constitution which would in a general manner
regulate the procedure for the execution of the right of peoples to
secession and thereby the withdrawal of certain republics from the
SPRY.

The amendments to the SFRY Constitution should express the
following commitments:

1. The right to launch the initiative for a certain republic to with-
draw from the SFRY is vested in the Assembly of the respective
republic, except if otherwise regulated by the republican constitu-
tion.

2, A decision on the initiative is taken at a referendum at which
the free, direct and secret voting of all citizens of the republic is
ensured.

3. During the preparations for the referendum, the public and
voters will be informed objectively and on time of the importance
and the consequences of the referendum.

4, The referendum will be monitored by representatives of
the Assembly of Yugoslavia and, possibly, representatives of other
republics and interested international institutions.

726

135

APPLICATION OF GENOCIDE CONVENTION (Diss. OP. KREÉA)

5. À decision will be deemed adopted if it receives more than one
half of the votes of all registered voters.

6. In republics populated by members of several Yugoslav nations,
the necessary majority will be established for each Yugoslav nation
separately. If one nation votes against, all settlements in which this
nation is predominant and which border on the remaining territory of
Yugoslavia and can constitute its territorial compactness will remain
part of the SFRY.

7. If the result of the referendum is negative, the same imitiative
may be launched after the expiry of a period of five years.

8. The Assembly of the republic will inform the public and the
Assembly of Yugoslavia. of the result of the referendum, and will
submit to the Assembly of Yugoslavia a proposal to adopt a consti-
tutional enactment on the withdrawal of the respective republic from
the SFRY, in accordance with the will of the people expressed at the
referendum.

9. The Assembly of Yugoslavia acknowledges the legality and
legitimacy of the expressed will of the people and members of
nations, and instructs the Federal Government to carry out the
necessary preparations for the adoption of the enactment on with-
drawal from the SFRY.

In this context, the Federal Government is obligated to:

{a} prepare a proposal for the division of jointly created values and
the property of the federation (movable and immovable prop-
erty) in the country and abroad registered as the property of the
federation; international obligations and claims; assets of the
National Bank of Yugoslavia; foreign currency, commodity
and monetary reserves of the federation, property of the Yugo-
sav People’s Army, archives of Yugoslavia, certain infrastruc-
ture facilities, licences and other rights and obligations ensuing
from ratified international conventions. The Federal Govern-
ment proposal would also include issues relating to citizenship,
pension and other rights of citizens and the like. This requires
the establishment of common responsibility for the obligations
and guarantees of the SFRY toward foreign countries;

(6) propose to the Assembly of Yugoslavia the manner of the elec-
tion and authorization of a parity body or committee which
will prepare a proposal for the division of rights and obliga-
tions and submit it to the Assembly of Yugoslavia;

fe) prepare proposals for the territorial demarcation and the
frontiers of the future states and other issues of importance for
formulating the enactment en withdrawal.

10. On the basis of the Federal Government proposals regarding
material and territorial issues, the Assembly of Yugoslavia will

727

APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

formulate, with the consent of the republican assemblies, a consti-
tutional enactment (constitutional law) on withdrawal from the
SFRY which, among other things, establishes:

citizens’ right of choice (term and manner in which citizens will
state their choice in the event of territorial changes), and the
obligation to ensure just compensation for change of residence) ;

the obligation to provide judicial protection of the rights of
citizens, legal entities and members of certain nations (com-
pensation for damages resulting directly from the execution
of the right to withdrawal, etc.);

the obligation to harmonize certain laws and other enactments
with changes in the structure of the SFRY;

supervision and contro} of the enforcement of determined obli-
gations;

other issues which must be resolved by the time of the definitive
disassociation (judiciary, environment protection, joint ventures
and the like);

the transitional period and the moment of disassociation from
the SFRY.? 106

However, Bosnia and Herzegovina did not accept the proposed “Con-
cept”, as clearly demonstrated by the arrangements for the referendum
on “sovereign and independent Bosnia”.

62. The promulgation of Bosnia and Herzegovina as a “sovereign and
independent Bosnia” was, according to item 4.2.1.10 of the Memorial,
composed of two elements, two actions:

(1) a referendum held on 29 February and 1 March 1992, when the

majority of people of the Republic expressed themselves in favour of
a sovereign and independent Bosnia; and

(2) the official promulgation of the results of the referendum on 6 March

1992. The sovereignty and independence of Bosnia were constituted on
that date, in view of the fact that according to Bosnia and Herzegovina:

“Since that date notwithstanding the dramatic events that have
occurred in Bosnia-Herzegovina, the constitutional authorities of
the Republic have acted like those of sovereign State in order
to maintain its territorial integrity and thus full and exclusive
powers.” (Emphasis added.)

À, correct interpretation of the above-quoted statement of Bosnia and
Herzegovina leads one to the conclusion that Bosnia and Herzegovina

106 Focus, Special Issue, January 1992, pp. 31-33.

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728 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

has been constituted as “sovereign and independent Bosnia” since the
date of promulgation of the referendum results. In other words, the
promulgation of the results of the referendum held on 29 February and
1 March had a constitutive, State-making character.

63. The referendum of 29 February and 1 March asked the following:

“Are you for a sovereign and independent Bosnia and Herze-
govina, a State of equal citizens, peoples of Bosnia and Herzegovina
— Muslims, Serbs and Croats and members of other peoples living
in it?”
The referendum was called in order to “determine the status of Bosnia
and Herzegovina”. The decision to call the referendum was taken by vir-
tue of Article 152 of the Constitution of the Socialist Republic of Bosnia
and Herzegovina, the provision of item 5, line 9, of Amendment LXXT to
the Constitution of the Socialist Republic of Bosnia and Herzegovina
and the provisions of Articles 3 and 26 of the Law on Referendum'®’.

There can be no doubt that the Assembly of the Socialist Republic of
Bosnia and Herzegovina had the authority to call a referendum, in the
light of the above-mentioned facts — both a preliminary referendum, i.e.,
a referendum for preliminary voting, and a subsequent one for the con-
firmation of laws, regulations and other enactments.

64. It is questionable, however, whether the Assembly of the Socialist
Republic of Bosnia and Herzegovina was entitled to call a referendum in
order to determine the status of Bosnia and Herzegovina.

Starting from a general provision that “the Assembly of SR Bosnia
and Herzegovina is exercising its rights and responsibilities on the basis
of and within the constitution and law” 1% and abiding by the relevant
rule on the relationship between the constitution and law, we now turn to
Article 314 of the Constitution of the Socialist Republic of Bosnia and
Herzegovina which stipulates the competences of the Assembly of the
Socialist Republic of Bosnia and Herzegovina:

“The Assembly of SR Bosnia and Herzegovina shall:

(1) Decide on the changes of the Constitution of the Socialist
Republic of Bosnia and Herzegovina; submit a proposal or opinion,
or issue an approval of the changes to the Constitution of the
SFRY;

(2) Determine the policy and decide on other fundamental issues
of relevance to the political, economic, social and cultural develop-
ment of the Republic;

(3) Consider the issues of common interest to the organizations of
associated labour and other self-managed organizations and com-

107 Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No. 29 (1977)
and 24 (1991).
108 Article 313 of the Constitution of the Socialist Republic of Bosnia and Herzegovina.

137

729

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APPLICATION OF GENOCIDE CONVENTION (DISS. OF. KRECA)

rmunities and harmonize their relations and interests; encourage self-
management agreements and social compacts;

(4) Consider the issues in the sphere of foreign policy and inter-
national relations: approve the negotiation of international treaties
in cases stipulated by the SFRY Constitution;

(5) Determine the proposals, or approve arrangements for rela-
tionships to be decided on by the Assembly of the Socialist Federal
Republic of Yugoslavia on the merit of a proposal, namely agree-
ment by the republic assemblies;

(6) Adopt the social plan of Bosnia and Herzegovina, the budget
of the Republic, the balance sheet, the republican global balance of
resources and the land development plan of Bosnia and Herze-
govina; pass the laws and other regulations and general enactments;
issue authentic interpretations of republican laws;

(7) Decide on modifications of republican borders;

(8) Determine the system of national defence in the Republic;

(9) Grant amnesty for criminal offences stipulated in the law of
the Republic;

{10} Decide on the indebtedness of the Republic and on calling
public loans in the Republic;

(11) Establish work organizations;

(12) Call a republican referendum;

(13) Determine the policy of enforcement of republican laws and
other regulations and general enactments and obligations of the
organs and organizations in the Republic and enforcement of the
federal and republican laws;

(14) Supervise politically the performances of the Executive Coun-
cil and republican bodies of authority and their organizations and
issue general guidelines; supervise politically the holders of public
and other social functions, reporting to the Assembly;

(15) Hear the opinions and proposals of the Constitutional Court
of Bosnia and Herzegovina concerning the protection of constitu-
tionality and legality;

(16) Hear the reports of the republican judiciary on law enforce-
ment and their performance and issue position papers on these
reports;

{17} Exetcise public surveillance;

{18} Elect and recall the president and members of the Presidency
of the Socialist Republic of Bosnia and Herzegovina and the
members of the Presidency of the Socialist Federal Republic of
Yugoslavia;

(19) Elect and recall the delegation of the Assembly to the
Chamber of Republics and Provinces in the SFRY Assembly;

730 APPLICATION OF GENOCIDE CONVENTION (DISS. GP. KRECA)

(20} Elect and recall the President and Vice-President of the
Assembly, members of commissions, committees and of other bodies
of the Assembly;

(21) Elect and recall the President and members of the Executive
Council, the President and Judges of the Constitutional Court of
Bosnia and Herzegovina, the President and Judges of the Supreme
Court of Bosnia and Herzegovina and other courts stipulated by law
and members of the Council of the Republic;

(22) Appoint and recall republican Secretaries and other execu-
tives of the republican bodies of authority and organizations acting
in the spheres of interest of the Republic; the republican Social
Attorney of Self-management, the Secretary-General and secretaries
of the Assembly, the Republican prosecutor, the Governor of the
National Bank of Bosnia and Herzegovina and other officials, mem-
bers of decision-making bodies and members of managing bodies of
the organizations stipulated as such by this constitution and the law;

{23} Decide on the extension of terms of office of the delegates to
the assemblies of socio-political communities;

(24) Perform other functions laid down in the present Constitution.

The Assembly may pass declarations, resolutions and recommen-
dations.”

The provision of paragraph 12 of Article 134 of the Constitution entitling
the Assembly “to call a referendum” means that the Assembly is to call
the referendum on issues falling within its competence. The need for such
an interpretation is found in the Law on Referendum which says that the
“Assembly of SR Bosnia and Herzegovina may call a referendum on
issues falling within its purview” (Art. 26 of the Law). The formulation of
the referendum question clearly indicates the intention of changing the
status of Bosnia and Herzegovina in terms of public law. The ratio of the
referendum was to transform Bosnia and Herzegovina from a federal
unit within the Yugoslav federation into “sovereign and independent
Bosnia” as the referendum question reads. If this were not the case, the
referendum would have been devoid of any purpose in view of the fact
that certain elements of statehood inherent to the Yugoslav model of
federalism were accorded to Bosnia and Herzegovina at the time when
the referendum was called.

The purpose of the referendum question was, in the strictly formal
legal context, to determine the status of Bosnia and Herzegovina in terms
of public law. Hence, the purpose of referendum was contrary both to the
Constitution of Bosnia and Herzegovina and the Constitution of SFRY.
More particularly, the Constitution of Bosnia and Herzegovina stipulates
in Article 1 (2) that the Socialist Republic of Bosnia and Herzegovina is
a part of SFRY. The Constitution of SFRY defined the federation as “a
federal state . . . of socialist republics” (Art. 1 of the Constitution), one
member of which, besides other republics, was the Republic of Bosnia
and Herzegovina (Ari. 5 (1) of the Constitution) and provided that the

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731 APPLICATION GF GENOCIDE CONVENTION (DISS. OP. KRECA)

“frontier of the SFRY cannot be changed without the consent of all the
republics” (Art. 5 (3) of the Constitution). Obviously, in terms of the rele-
vant constitutional regulations, the very fact of calling a referendum on
the status of Bosnia and Herzegovina constituted a potential threat to the
territorial integrity of SFRY protected by the SFRY Constitution, or
more particularly, an act incriminated by the Penal Code of SFRY.

The very promulgation of the “sovereignty and independence” of
Bosnia and Herzegovina on the basis of the referendum held, constituted
a threat to the territorial integrity of the SFRY.

65. The act of launching a referendum in order to “determine the
status of Bosnia and Herzegovina” was formally and materially
unconstitutional,

Elements of formal unconstitutionality are demonstrated by the fact
that the Assembly of the Socialist Republic of Bosnia and Herzegovina
called a referendum which fell outside its constitutionally and legally lim-
ited jurisdiction. Jn concreto, this is a case of specific non-competence,
because the organ otherwise competent to call a referendum, having
called a referendum on the “status of Bosnia and Herzegovina”, had
acted ultra vires. At the same time, calling a referendum on the “status of
Bosnia and Herzegovina” constituted an unconstitutional act in the
material sense (material unconstitutionality), because the building of
Bosnia and Herzegovina as a “sovereign and independent” State, taken
per se, was contrary to the SFRY Constitution. More particularly, the
“sovereignty and independence of Bosnia” means an automatic modifica-
tion of the State frontiers of SFR Y, while by virtue of the SFRY Con-
stitution the State territory is but one (Art. 5 (1} of the Constitution} and
“the frontier of SFRY cannot be changed without the consent of ail
republics” (Art. 5 (3) of the Constitution), Moreover, calling a referen-
dum was materially unconstitutional in terms of the Constitution of Bos-
nia and Herzegovina itself. Amendment LXX to the Constitution of the
Socialist Republic of Bosnia and Herzegovina established, in its para-
graph 10, a Council entrusted with the exercise of the right to equality of
nations and nationalities of Bosnia and Herzegovina. The mandate of the
Council is inter alia to “consider in particular the questions relating to
.,. the promulgation of regulations ensuring the materialization of con-
stitutional provisions which provide explicitly for the principle of equal-
ity of peoples and nationalities”. The Council is composed of an

“equal number of deputies from among the ranks of members of
peoples of Bosnia and Herzegovina — Muslims, Serbs and Croats, and
a corresponding number of deputies members of other people and
nationalities and the others who live in Bosnia and Herzegovina”,

who are to take decisions “on the merit of agreement of members from
among the ranks of all peoples and nationalities”.

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732 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

The ratio legis of Amendment LXX (10) certainly lies in ensuring and
guaranteeing the equality of peoples. The significance attached to the
Council, within the constitutional system of Bosnia and Herzegovina, is
amply demonstrated in paragraph 10, which says that

“in questions of interest to the exercise of equality of peoples and
nationalities in B-H, at the proposal of the Council, the Assembly
shall decide, by means of a specific procedure set out in the Rules of
Order of the Assembly of the Socialist Republic Bosnia and Herze-
govina, by a two-thirds majority of the total number of deputes”.

The Council was designed by the Constitution as an unavoidable instance,
a forum where deliberations were concentrated and proposals originated
for the equality of peoples. In view of these facts, the proposal to call a
referendum on the “status of Bosnia and Herzegovina” must have been
an issue for consideration by the Council, as this is the question that
directly infrmged upon “the principles of equality among peoples and
nationalities”.

The circle of formal and material unconstitutionality encompasses also
the act of “official promulgation of the results of the referendum
on March 6, 1992”, The qualification of “official promulgation” invokes,
mutatis mutandis, the relevance of the facts corroborating the formal and
material unconstitutionality of calling the referendum on the status of
Bosnia and Herzegovina.

The referendum on the “status of Bosnia and Herzegovina” falls into
the category of the so-called preliminary referenda in the constitutional
reguiation of the Socialist Republic of Bosnia and Herzegovina, since the
purpose had been a preliminary voting of citizens on the relevant issue of
the status of Bosnia and Herzegovina. That is why the “official promul-
gation of the results of a referendum” is, actually, a legal act. More par-
ticularly, voting of citizens in a referendum is no decision in formal
terms, irrespective of whether the result of the voting is or is not binding
on the organ which called the referendum. The result of the referendum is
a material condition for decision-making in formal terms and this is, in
the present case, the nature of the “official promulgation”.

Such a legal nature of the “official promulgation” of a federal unit of
Bosnia and Herzegovina as a “sovereign and independent” State consti-
tutes an additional aspect of material unconstitutionality in respect to the
relevant decisions of the Constitution of the Socialist Republic of Bosnia
and Herzegovina. More particularly, Article 252 of that Constitution
stipulated that the:

“fsjacred and inalienable right and responsibility of peoples and
nationalities . . . of Bosnia and Herzegovina is to safeguard and
foster freedom, independence, sovereignty, ferriterial unity and the
constitutionally established social system of the SFRY and the Social-
ist Republic Bosnia and Herzegovina” (emphasis added).

14]

733 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

Item 7 of Amendment LXIX to the Constitution of the Socialist Republic
of Bosnia and Herzegovina provided that: “Political organizations and
acts aimed at the forceful change of the constitutionally established system,
and threats to the territorial unity and independence of SFRY” (emphasis
added) are prohibited. Both of the constitutional provisions mentioned
above include “territorial unity” as a constitutionally protected object
while “official promulgation” is a form of direct threat to that object.

66. The referendum for determination of the status of Bosnia and
Herzegovina was called in the form of a referendum of citizens. This fact
derives from the method of voting at the referendum, which remained un-
disputed by Bosnia and Herzegovina, as it stated in its Memorial, in the
context of the promulgation of its sovereignty and independence (Memo-
rial, para. 4.2.1.10), inter alia, that “the majority of the people of the
Republic” voted positively on the referendum question. The use of the
term “people” in the singular undoubtedly suggests that Bosnia and
Herzegovina is also of the view that this was but a civic referendum.

Was a civic referendum, in the form of a direct expression of the will of
citizens, quite apart from the questions elaborated in items 5 and 6, a
good way in which to decide the “status of Bosnia and Herzegovina”?
Civic referendum is, per defiñitionem, a form of the exercise of national
sovereignty, that is to say, the rule of the people as Demos, Since three
peoples exist in Bosnia and Herzegovina and are provided with the right
to self-determination, it is indisputable, irrespective of the reasons stated
in paragraphs 5 and 27 of this opinion, that the form of civic referendum
is absolutely inadequate to express the will of each of the three peoples.
In some sort of ultimately strained hypothesis that “sovereign and inde-
pendent Bosnia” was voted for by such a majority of citizens embodying
the majority of each of the members of the three peoples, it might be said
that a civic referendum consummated the national referendum, although
per se it was not such a referendum. But that was not the case, as is
known. In view of the fact that all the three peoples of Bosnia and Herze-
govina are, by virtue of the Constitution of Bosnia and Herzegovina,
“sovereign and equal”, a national referendum is only relevant for the
direct exercise of the right to self-determination. A separate exercise of
the right to self-determination could have been anticipated by means of a
corresponding decision taken by elected representatives of the three
peoples of Bosnia and Herzegovina, particularly as in 1990, democratic
multiparty elections were held in Bosnia and Herzegovina. Maps of con-
stituencies correctly mirrored the ethnic structure of Bosnia and Herze-
govina since the national parties of the three peoples individually
gathered practically all the votes of their national corps.

The referendum was an inadequate form of voting on the “status of
Bosnia and Herzegovina” not only because of the reasons relating to its
constitutionality and essential inability to express the will of the three
peoples of Bosnia and Herzegovina, but because of the very provisions of
the Law on Referendum on the basis of which it was held,

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734 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

The provisions of the Law on Referendum of Bosnia and Herzegovina
taken per se are certainly not formulated so as to imply the possibility
of deciding “on the status of Bosnia and Herzegovina” by means of a
referendum, as designed by the Law.

Apart from the general provisions on calling the referendum already
discussed in paragraph 5 of this opinion, the provisions concerning the
method of decision-making and the individuals participating in the
voting are also of relevance.

Article 33 of the Law stipulates that the

“decision on referendum is to be taken by a majority vote of all
working people and citizens registered as voters in the territory
or part of the territory of SR of Bosnia and Herzegovina where the
referendum is called”.

The decision at the referendum is to be taken by majority vote. Leav-
ing aside the issue of the legality of a referendum, a logical question
arises, i.¢., whether a valid issue, such as “the status of Bosnia and Herze-
govina”, may possibly be decided by simple majority. The rational reason
underlying this question relates to the fact that the Constitution of the
Socialist Republic of Bosnia and Herzegovina stipulated voting of at
least two-thirds of the total number of voters of the Socialist Republic of
Bosnia and Herzegovina on the question of a change of borders of the
Socialist Republic of Bosnia and Herzegovina (Amendment LXII to Ar-
ticle 5 of the Constitution). In other words, the constitutional require-
ment for the correction of indirectly determined lines of administrative
division within the federation was a two-thirds majority, while the Law on
Referendum required a simple majority for the decision on the status of
Bosnia and Herzegovina in terms of public law. This is, in my view, suffi-
cient proof that the legislator did not, when passing the Law on Referen-
dum (either irrespective of the Constitution of the Socialist Republic of
Bosnia and Herzegovina or just relying on the Constitution of the Socialist
Republic of Bosnia and Herzegovina), have in mind a referendum of that
kind. More particularly, it is difficult to imagine that the legislator would
lay down much stricter requirements for a referendum on the change of
borders, which in the practice of the Yugoslav federal units was nothing
but a couple of hectares of pasture lands, forests or villages, than
for a referendum on the fateful, existential question of the very federal
unit.

The Law on Referendum also stipulated that “all working people and
citizens included in voters’ lists in the territory, namely that part of ter-
ritory of SR B-H where referendum shall take place”, shall have the right
to vote in the referendum (Art. 33 of the Law). Such a provision raises
the question about who in fact was voting at the referendum. The provi-
sion entitling “all working people and citizens” to vote means that the
criterion of eligibility to vote was not citizenship in the republic. The only

1 Official Gazette of the Socialist Republic of Bosnie and Herzegovina, No. 21.(1990).
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735 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

criterion was residence, since 1t was a condition of enlistment for voting.
Hence, the right to vote in the referendum was, for instance, accorded to
Slovenes or Macedonians, who had a residence in Bosnia and Herze-
govina, while Muslims or Serbs, citizens of Bosnia and Herzegovina, who
resided in another republic were deprived of that right.

67. Finally, from the standpoint of the Constitutional law of SFRY, it
would be hard to imagine a more meritorious judgment on the legal
evaluation of the referendum on the “status of Bosnia and Herzegovina”
than the one handed down by the Constitutional Court of Yugoslavia as
the main proponent of constitutionality and legality in the constitutional
system of SFRY (Art. 375 of the SFRY Constitution). The Constitu-
tional Court of Yugoslavia never took up the referendum on the status of
Bosnia and Herzegovina as a separate issue. However, it made several
rulings on the analogous acts of federal units which had promulgated
“sovereignty and independence” before Bosnia and Herzegovina. Apart
from the actual decisions of the Constitutional Court of Yugoslavia in
the concrete cases, we shall quote from relevant parts of the explanations
of those decisions since they extend beyond the framework of the con-
crete issue in formal and material terms, on which the court ruled. In
other words they constitute a meritorious legal evaluation of the highest
judicial instance in SFRY on the relevant question. In ruling I U
No. 108/1-91 (Official Gazette of SFRY, No. 83/91), the Constitutional
Court pointed out, inter alia, that

“The right of peoples of Yugoslavia to self-determination, includ-
ing the right to secession, may not, in the view of the Constitutional
Court of Yugoslavia, be exercised by unilateral acts of the peoples of
Yugoslavia, namely enactments of the Assemblies of the republics
within the Socialist Federal Republic of Yugoslavia . . . Although
the procedure for the exercise of the right to self-determination
including the right to secession is not provided for by the SFRY
Constitution, this does not mean that the right can be exercised on
the basis of unilateral acts on self-determination and secession. No
people and, more particularly, no assembly of a republic can, by
means of a unilateral act, decide on the exercise of that right before
the procedure and conditions governing the procedure have been
jointly determined for the exercise of that right.

A unilateral promulgation of sovereignty and independence of
republics making up the Socialist Federal Republic of Yugoslavia
implies, in the opinion of the Constitutional Court of Yugoslavia, an _
infringement upon the provisions of the SFRY Constitution con-
cerning the composition of the Socialist Federal Republic of Yugo-
slavia and of the frontiers of Yugoslavia as a federal state and state
community of voluntarily united peoples and their socialist repub-
lics.”

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736 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

It is worth mentioning that the above ruling was approved in the course
of the court deliberations in full composition as provided for in
Article 381 of the SFRY Constitution and in the presence of both judges
from Bosnia and Herzegovina.

C. Legality of the Proclamation of Independence of Basnia and
Herzegovina in the Light of International Law

68. In a series of international instruments starting with the United
Nations Charter and continuing via the Declaration on the Granting of
Independence to Colonial Countries and Peoples (1960), and the Cov-
enants on Human Rights (1966), to the Declaration on Principles of
International Law concerning Friendly Relations and Co-operation
among States in Accordance with the Charter of the United Nations
(1974), the equal rights and self-determination of peoples has been of
essential universal value of the democratic ordre public embodied in the
United Nations Charter, and raised to a positive norm of general inter-
national law with the character of jus cogens!'©, In the case concerning
East Timer, the Court in its Judgment stated inter alia:

“In the Court’s view, . . . the right of peoples to self-determina-
tion, as it is evolved from the Charter and from United Nations
practice, has an erga omnes character . . . the principle of self-deter-
mination of peoples has been recognized by the United Nations
Charter and in the jurisprudence of the Court (see Legal Conse-
quences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, LCF. Reporis 1971,
pp. 31-32, paras. 52-53; Western Sahara, Advisory Opinion, LCI.
Reports 1975, pp. 31-33, paras. 54-59); it is one of the essential prin-
ciples of contemporary international law.”'"

10 J. J. Caicedo Perdomo, “La teoria del fs cogens en derecho internacional a la luz de
la Convencion de Viena sobre el derecho de los tratados”, Revista de la Academia colom-
bina de jurisprudencia, January-June 1975, pp. 216-274; L. Alexidze, “Legal Nature of jus
cogens in Contemporary International Law”, Recueil des cours de l'Académie de droit
international de La Haye, Vol. 172, 1981, p. 262; Bedjaoui notes that “Among those prin-
ciples, “the right of complete independence’ and ‘the right of self-determination’ are con-
sidered to be inalienable and must accordingly be recognized immediately and uncondi-
tionally” firanslation by the Registry]; “Non-alignement et droit international”, ibid.
Vol. 151, 1976, p. 421. M. Sahovié, “Codification of the Legal Principles of Coexistence
and the Development of Contemporary International Law”, in Principles of International
Law Concerning Friendly Relations and Cooperation, 1972, p. 23; draft rules on Interna-
tional Responsibility; the list of international crimes covers also “/6) a serious breach of
an international obligation of essential importance of safeguarding the right of self-deter-
mination of peoples” (Art. 19), Fifth Report on State Responsibility, Yearbook of the
international Law Commission, 1976, Vol. Il, Part Two, p. 75).

WE CL Reports 1995, p. 102.

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737 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

69. Equal rights and self-determination of peoples is a complex norm
in terms of structure.

On the one hand, the very phrase “equal rights and self-determination
of peoples” is a link, an amalgam of a general legal principle (“equal
rights”} and the norm on the self-determination of peoples. “Equal
rights” in the above phrase, as à normative substitute for “equality of
States”, has a broader meaning because it defines, in a broader form, the
relationship of each people taken individually to the sum of rights recog-
nized to peoples under international law. Its virtual meaning lies in a
prohibition of any distinction between peoples and the respective rights
recognized to them. In other words, the principle of “equal rights”
defines the scope of the norms of international law that relate to the
status of peoples. The right to self-determination does, however, have an
immediate material substance as

“all peoples have the right freely to determine, without external
interference, their political status and to pursue their economic,
social and cultural development and every State has the duty to
respect this right in accordance with the provisions of the Charter”
(para. 1 of the Declaration on Principles).

On the other hand, the norm on “equal rights and self-determination of
peoples” is incomplete, less than full norm in view of its application.
More particularly, it contains no definition of the notion of “people” and
no such definition, as an institutional mechanism authorized to define
what a “people” is, can be found to exist in the international law in force.
That is why the only way to make the norms on “equal rights and self-
determination of peoples” operational and effective is to take the norms
of internal jaw which define “peoples”, as relevant (paras. 44-45 above).
The norms of internal law can likewise be relevant in the event of an exer-
cise of external self-determination in States comprising more than one
people, in view of the nature of the prohibition of violations of territorial
integrity and political unity.

70. Certain strong arguments support the assertation that the procla-
mation of Bosnia and Herzegovina as a “sovereign and independent”
State within its administrative borders was a violation of the fundamental
entitlement to equal rights and self-determination of peoples.

On the assumption that other relevant processes and material require-
ments were in place (paras. 59-63 above), the merit of the proclamation
of Bosnia and Herzegovina as a “sovereign and independent” State,
could only relate to the converging will of the three peoples in Bosnia and
Herzegovina. However, there was an evident divergence in the basic
political stances of the representatives of these three peoples. While the
will of the Muslim political leadership was expressed in the Draft Decla-
ration on the Sovereign Bosnia and Herzegovina since February 1991,
which has been, at least temporarily, accepted by Croat political leaders,

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738 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA}

the political leadership of Bosnian Serbs insisted on the preservation of
Bosnia and Hezegovina as a federal unit within the Yugoslav federation.

The referendum of 29 February and 1 March 1992 was not an expres-
sion of equal rights and self-determination of the three peoples of Bosnia
and Herzegovina, whether in terms of its form (see para. 64 above) or its
substance. Although absolutely inappropriate in form, its substance could,
however, be qualified at best as the de facto self-determination of the
Muslim and Croat peoples in Bosnia and Herzegovina. A national plebi-
scite of the Serbian people in Bosnia and Herzegovina was organized in
the form of referendum on 9 and 10 November 1991, “in the areas of the
Serbian autonomous regions and other Serbian ethnic enclaves in Bosnia
and Herzegovina”, where 96.4 per cent of citizens voted for an indepen-
dent State within the Yugoslav federation (Politika, 11 and 13 November
1991).

Relevant circumstances concerning the referendum of 29 February and
1 March 1992 reveal the intention to have the decision on the legal status
of Bosnia and Herzegovina taken independently of the norm on equal
rights and self-determination of peoples.

In the first place, Mr. Alija Izetbegovic stated the following at a press
conference in Sarajevo on 30 January 1991:

“If Slovenia and Croatia secede from the present Federation,
I will consider that I no longer have any authority to conduct further
talks on a new Yugoslavia. I will propose that a referendum be held
of all citizens of Bosnia and Herzegovina — not of individual
peoples — to decide on the independence and sovereignty of
Bosnia-Herzegovina.” 112

Secondly, Bosnia and Herzegovina’s submissions mentioned more than
once the “People of the Republic” (exempli causa, paras. 5, 31, 114, 134,
135, 136 of the Application instituting proceedings filed in the Registry of
the Court on 20 March 1993; Memorial, paras. 4.2.1.10; 4.2.2.19). Thus -
in paragraph 4.2.1.10 it was written that the referendum on the sover-
eignty of Bosnia and Herzegovina was based on the will of the “majority
of peeple of the Republic” (emphasis added).

This proves that the merit of the relevant decision was not the will of
the three peoples of Bosnia and Herzegovina to “determine their political
status”, but was rather the will, in the light of facts and law, of an imagi-
nary “people of Bosnia and Herzegovina”. The objective meaning of the
phrase “people of Bosnia and Herzegovina” in the given context lies in a
denial of the existence of the three peoples of Bosnia and Herzegovina,

112 Referendum on the independence of Bosnia and Herzegovina, The Politika Daily,
31 January 1991 (emphasis added).

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739 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

thereby denying the relevance of the norm on equal rights and self-
determination of peoples.

Thirdly, the reference of Bosnia and Herzegovina to the opinion of the
Arbitration Commission as advisory body of the Conference on Yugo-
slavia is reasonably connected to the standpoint of the Commission on
the issue of self-determination of Serbian people in Bosnia and Herze-
govina. In reply to the question raised by Lord Carrington, Chairman of
the Conference on Peace in Yugoslavia: “As a constituent people of
Yugoslavia, do the Serbian Populations(s) in . . . Bosnia-Herzegovina
enjoy the right to self-determination?”, the Commission, inter alia,
stressed:

“that the Serbian population of Bosnia-Herzegovina . . . is entitled
to all the minority rights accorded to minorities and ethnic groups
under international law and under the provisions of the draft Con-
vention of the Conference on Yugoslavia of 4 November 1991, to
which the Republics of Bosnia-Herzegovina . . . have undertaken to
give effect” 113,

In other words, a construction of the Commission on independence of
Bosnia and Herzegovina which served as basis for the policy of recogni-
tion of Bosnia and Herzegovina has been derived independently of a
cogent norm on equal rights and self-determination of peoples, since one
of the constituent peoples of Bosnia and Herzegovina has been treated as
a “minority and ethnic group”.

- 71. The right to self-determination is composed of two rights: the right
to internal and the right to external self-determination. These two rights
are an organic unity expressing dialectics in the development of the idea
of self-determination.

The right to internal self-determination is materialized in the institu-
tional environment of a sovereign, independent State. It is reduced to the
right of each State freely, without external interference, to choose the
form of its social system (political self-determination) and the right to
free disposal of its natural wealth and resources. So construed, a right
to internal self-determination embodies the ideas of sovereignty and
democracy.

The right to external self-determination means the right to choose the
institutional framework for the continuous exercise of internal self-deter-
mination. Statehood is thus not the necessary and automatic outcome of
the exercise of the right to external self-determination, since that right
could be expressed not only by the “establishment of a sovereign and
independent State” but by “free association or integration with an inde-
pendent State or the emergence into any other political status freely
determined by a people”.

113 The Conference on Yugoslavia, Arbitration Commission, Opinion No. 2, para. 4.

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740 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

72. The question of fundamental importance in this context is whether
the right to external self-determination is universal or limited in scope?

It seems indisputable that in abstracto the right to self-determination is
a norm of universal scope. A limitation of the scope of the right to self-
determination would mean tacit partial derogation from it. Universality
is an inherent characteristic of both aspects of the right to self-determi-
nation — internal and external self-determination. It is clearly and
undoubtedly indicated by the wording that self-determination belongs
to “all peoples” (Art. 1 of both Covenants on Human Rights (1966) and
Declaration on Principles of International Law regarding Friendly Rela-
tions and Co-operation among States (1970)). Were that not the case, the
right to self-determination would relate not to the “equal rights” of
peoples but to an “unequal right”.

The fact that in the Court’s practice (Advisory Opinion in the Namibia
case, 1.C.J. Reports 1971, p. 31; Western Sahara case, .C.J. Reports
1975, pp. 12, 31), the right to external self-determination has been linked
to non-self-governing territories cannot be interpreted as a limitation of
the scope of the right to self-determination ratione personae, but as an
application of universal law ad casum.

73. However, there is no automatic equation between universality and
non-limitation of the right to self-determination. In the exercise of the
right to self-determination there are limits determined by the very norm
of self-determination of peoples and limitations deriving from other
norms in the system of international law.

These limitations affect the right to self-determination in its entirety,
i.e., their subject matter is both internal and external self-determination.

Exempli causa, when it comes to internal self-determination, it is evi-
dent that in the context of political self-determination, the subject right
includes no option for a social system based on racial discrimination or
segregation. More particularly, the right to self-determination, ex defini-
tione, is a general permissive norm, a norm comprising categorical
authorization. The exercise of that authorization is effected, however,
within the system of international law, which is to say that it encounters
limits in categorical prohibitions contained in other cogent norms (in
concreto, in the norm prohibiting racial discrimination).

The basic constraint affecting the exercise of external self-determina-
tion derives from the very norm on equal rights and self-determination of
peoples. The right to self-determination shall not

“be construed as authorizing or encouraging any action which could
dismember or impair, totally or in part, the territorial integrity or
political unity of sovereign and independent States conducting them-
selves in compliance with the principle of equal rights and self-

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741 APFLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)}

determination of peoples . . . and . . , possessed of a government
representing the whole people belonging to the territory without dis-
tinction as to race, creed or colour” !1#,

The above-mentioned constraint on the exercise of external self-determi-
nation in a narrow sense, within the meaning of the norm on equal rights
and self-determination of peoples, reveals the relevance of the norm on
territorial integrity and political unity of a State. Being linked to the exer-
cise of the right to self-determination to which “peoples” are entitled, this
limitation protects the territorial integrity and political unity of a State
from any action that might be undertaken within the State — unlike the
ban on the use of force and threat of force in international relations
among States which safeguard its territorial integrity and political unity
against an external action.

74. As Henkin pointed out “[ilt is accepted that self-determination . . .
does not include a right of secession for a people from an existing
State? !',

The rule applies equally to federations:

“[wlhether the federation dissolves into two or more States also
brings into focus the doctrine of self-determination in the form of
secession. Such a dissolution may be the result of an amicable and
constitutional agreement or may occur pursuant to a forceful exer-
cise of secession. In the latter case, international legal rules may be
pleaded in aid, but the position would seem to be that (apart from
recognised colonial situations) there is no right of self-determination
applicable to independent states that would justify the resort to
secession.” 116

In other words, that is to say that in the existing States made up of
several peoples, the norm of equal rights and self-determination estab-
lishes prohibition of the exercise of external self-determination, since it
naturally represents an action which “dismembers or impairs totally or in
part, the territorial integrity or political unity”. The addressee of that
prohibition is a people equipped with the right to self-determination; in
view of the fact that

“fslecessionist claims involve, first and foremost, disputed claims to
territory . .. The two supposedly competing principles of people and
territory actuaily work in tandem.” 11?

"4 Declaration of Principles, para. 7.

"3 L. Henkin, “General Course of Public International Law”, Recueil des cours de
l'Académie de droit international de La Haye, Vol. 216, 1989, p. 243.

"6M. N. Shaw, International Law, 1986, p. 139.

UT EL. Brilmayer, “Secession and Self- Determination” ; Yale Journal of International
Law, Vol. 16, 1991, p. 178 (emphasis added). |

150

742 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

75. The basis of prohibition lies in the conflict of two norms of the
same legal rank — the norm of self-determination and the norm of ter-
ritorial integrity. The latter, tractu temporis, has become an integral
ingredient of the sovereign equality of States (point (d) of the Principle
of Sovereign Equality of States in the Declaration on Principles of Inter-
national Law), a cogent norm per se, so that the aforementioned conflict
is impossible to resolve on the grounds of hierarchy of norms of interna- _
tional law. Apart from this practical justification, such a solution has a
principled one, i.e., no one is more qualified than a State, as a sovereign
political unit, to decide on its fate when it finds itself caught between two
substantially opposing norms and when its decision does not affect the
rights of third States.

76. According to paragraph 7 of the Declaration on Principles of
International Law, the prohibition of dismemberment or impairment in
the territorial integrity or political unity concerns the States

“conducting themselves in compliance with principles of equal rights
and self-determination of peoples . . . and possessed of government
representing the whole people belonging to the territory without dis-
tinction as to race, creed or colour”.

The stated provisions contain two criteria: the first is the conduct of the
State in compliance with the principle of equal rights and self-determina-
tion of peoples, and the second is the criterion of representatives of a
government with the view to ensuring the representation of the whole
people without discrimination as to race, creed or colour. By its nature,
the second criterion is general. In this concrete case, it should also be
interpreted as an absence of discrimination among peoples who com-
prised the SFRY.

How does this relate to the application of the two legal criteria in the
case of the Yugoslav federation?

77. The self-determination of peoples has been more than a statement
in constitutional and legal documents of the federal Yugoslavia. It was a
constitutive principle of the Yugoslav State. Equally, in the Yugoslav
constitutional law, “national equality” or “equality of peoples” went
hand in hand with the right to self-determination.

The 1974 Constitution of the SFRY qualified equality of peoples
explicitly as one of the major constitutional principles (the first section of
the Basic Principles) and developed it into several provisions in the
operative, normative part of the Constitution (e.g., Arts. 1, 244, 245).
Article 245, devoted to the relations within the Federation, stipulated
that: “In SFRY peoples .. . enjoy equality.”

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743 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

The equality of peoples in the composition of the State authorities of
SFRY was ensured in two ways:

(i) via constitutional provisions on the equal representation of republics
and provinces, namely the joint representation of republics in the
federal bodies. Both chambers of the SFRY Assembly, the general
representation (Federal Chamber} and the federal house (Chamber
of Republics and Provinces) were formed according to the classical
principle of parity (Arts. 284 and 291 of the SFRY Constitution).
The same principle applied to the collective Head of State — Presi-
dency of the SFRY (Amendment XLI, point 1, to the SFRY Con-
stitution). Care was taken, in appointing members of the Federal
Executive Council (Government of SFRŸ) to ensure an equal repre-
sentation of republics and an adequate representation of provinces
{Amendment XLII to the SFRY Constitution). The principle of
equal representation of republics was applied in the courts (Consti-
tutional Court and Federal (Supreme) Court).

{ii} Social compacts on the policy of recruitment of cadres determined
eligibility criteria in which national origin was placed high on the list
in multi-ethnic communities.

The personnel picture in the highest State bodies in SFRY in 1990,
immediately prior to proclamation of declaration of independence in
some federal units, was as follows:

President of the Presidency of SFRY: Croat; Vice-President: Serb:

Prime Minister of the Federal Government: Croat; Vice-premiers: Serb
and Slovene;

President of the Parliament: Muslim from Bosnia and Herzegovina. The
latest Federal cabinet comprised five Croats; three Serbs; one Muslim;
one Serb from Bosnia; three Slovenes; one Montenegran; one Yugo-
slav; one Albanian; one Hungarian; and two Macedonians.

In the light of the aforementioned facts, one cannot but conclude that
the State organs of SFRY represented all the Yugoslav peoples.

78. As to Bosnia and Herzegovina’s view on the subject-matter, it
never questions the representativeness of the SFRY bodies in prin-
ciple, but points out that, by the proclamation of independence of some
federal units, that representativeness had disappeared and, moreover, “the
common federal bodies on which all the Yugoslav republics where
represented no longer exist; no bedy of that type has functioned

152

744 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

since” (Memorial, para. 4.2.1.26). The claim rests on a general thesis
that

“in the case of a federal-type State, which embraces communities
that possess a degree of autonomy and, moreover, participate in the
exercise of political power within the framework of institutions com-
mon to the Federation, the existence of the State implies that the
federal organs represent the components of the Federation and wield
effective power” !'8,

In the case of Yugoslavia, “common federal bodies” ceased to exist
due to referendum on independence in three republics, and in “Bosnia
and Herzegovina, by a sovereignty resolution adopted by Parliament
on October 14th, 1991, whose validity has been contested by the Serbian
community of the Republic of Bosnia and Herzegovina” '",

“The composition and workings of the essential organs of the
Federation, be they the Federal Presidency, the Federal Council, the
Council of the Republics and the Provinces, the Federal Executive
Council, the Constitutional Court or the Federal Army, no longer
meet the criteria of participation and representativeness inherent in a
federal state.” '?°

This claim could be hardly taken as legally meritorious. The lack of
credibility of the above claim, both in its general and in specific meaning,
is evidenced by the following.

79. The wording “the federal organs represent the components of the
Federation” has two possible meanings. First, that the Federation, via its
organs, represents federal units. Such a meaning of the above wording is
logically implied by the fact that a federation is, by definition, a higher,
superior power in relation to its constituent parts and that the organs of
the whole represent the parts constituting it, and, secondly, that federal
organs by their very composition represent federal units — in other
words they are a sort of institutional aggregate of the representativeness
of federal units.

The claim of Bosnia and Herzegovina, supported by the Opinion of the
Commission, is evidently aimed in that direction. In the light of the com-
parative practice of the federation and constitution of the SFRY, those
claims are groundless. As a rule, federal organs represent the federal
State as a whole (exempli causa: United States President; United States
House of Representatives; executive and judicial organs in almost all

118 International Conference on Peace in Yugoslavia, Arbitration Commission,
Opinion No. |, para. ! (d).

M9 Jbid., para. 2 (a).

120 Jbid., para. 2 (b).

153

745 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)
federal States) and only the federal chamber is bicameral, representing

parts of the federation (United States Senate, Canada or Brazil, German
Bundesrat, National Council in Switzerland, etc.).

Also, the relevant solution in the SFRY Constitution ranged within the

‘framework of that generally accepted practice in federal States. With the

exception of the Council of Republics and Provinces, all federal organs in
SFRY represented the federation as a whole. Delegates in the Federal
Council represented “self-managing organizations and communities and
socio-political organizations” and were elected in the republics and prov-
inces (Art. 129 of the SFRY Constitution); members of the Federal
Executive Council and officials did not, moreover, represent republics/
provinces and an explicit constitutional provision prohibited them from
accepting guidelines and orders from republics and provinces (Art. 362).
The President and Members of the SFRY Presidency, President and
Members of the Constitutional Court and other federal officials used to
take an oath to the effect that they would foster the sovereignty, inde-
pendence and integrity of the SFRY, abide by the Constitution of
the Federation (Art. 397), so that they were not representatives of the
republics/provinces under the Constitution.

80. It follows that there is no legal connection between an actual
refusal to participate in the federal organs and the existence of these
organs in the eyes of law. This is evidenced by the Yugoslav case. No
federal organ has been dissolved or wound up on the grounds of wilful
absence and individual resignations on the part of certain federal officials.

The Constitution of the SFRY of 27 April 1992, as well as the consti-
tutional law and its implementation, were approved by the SFRY Assem-
bly. By virtue of that law, all the supreme federal organs continued to act
pending the election of new organs (Art. 2 of the Law). The SFRY Presi-
dency acted until the election of the President of the Republic (15 June
1992) and the Federal Executive Council acted until the formation of a
new federal government (14 July 1992).

Participation in the activities of federal organs and the duties of the
elected representatives were construed with the intention of endowing the
resulting decisions of the federation with objective legal personalities in
terms of national and international law, in the general interest. The wilful
abstention of federal officials elected in Bosnia and Herzegovina was seen

154

746 APPLICATION OF GENOCIDE CONVENTION (DISS. OP, KRECA)

as constituting an abuse of the law'?’. The consequences of an abuse of
law affect those who resort to it, im line with the general legal principle
nullus commodum capere de sua injuria propria et ex delicte non oritur
actio,

81. Bosnia and Herzegovina’s reasoning has been tacitly based on an
inverted liberalistic idea of consent as a fundamental of the legitimacy of
a State, The original idea, that a legitimate government must stem from
the consent of the governed, is interpreted in Bosnia and Herzegovina’s
approach as implying that stepping out of the State organs entails a loss
of legitimacy of the government and constitutes the right to opt out of an
existing State.

In fact,

“actual consent is not necessary to political legitimacy . . . Separa-
tists cannot base their arguments upon a right to opt out because no
such right exists in democratic theory.

Government by the consent of the governed does not necessarily
encompass a right to opt out. It only requires that within the existing
political unit a right to participate through electoral processes be
available. Moreover, participatory rights do not entail a right to
secede. On the contrary, they suggest that the appropriate solution
for dissatisfied groups rests in their full inclusion in the polity, with
full participation in its decision-making processes.” 172

82. Does the “Existence of the state impl[y] that the federal organs...
yield effective power”?

The exercise of effective power is per definitionem the purpose of the
existence of State organs irrespective of whether the State is unitary or
federal. Jn concreto, the question is whether an evident crisis in the func-
tioning of State organs of the Federation led to their ceasing to exist? To
equate the constitutional crisis in SFRY and the non-existence of federal
organs is legally unacceptable. The scope of the effectiveness, quantity
and quality of State organs is a variable category, because it demon-
strates an actual, political state of affairs. In principle, there are situa-
tions in which State organs do in fact cease from exercising power (eg.
cases of military occupation, civil war and, to a certain extent, various
forms of constitutional crises), but do not cease to exist. State organs as

1 The Constitutional Court of Yugoslavia stated in its Decision IT U. No. 122/91 that
the abstention of federal officiais from work in federal argans represents “an unconstitu-
tional change of the composition of the common federal state” (Official Gazette af SFR Y,
No. 89/91). That decision was approved by the Constitutional Court in its full composi-
tion and with the participation of both judges from Bosnia and Herzegovina.

"2. Brilmayer, “Secession and Self-determination: A Territorial Interpretation”,
Yale Journal of international Law, 1991, Vol. 16, pp. 184-185.

155

747 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

elements of State organization cease to exist when the State on whose
behalf they are acting ceases to exist.

D. The Relationship between the Legality of the Birth of a State and
Succession with Respect to International Treaties

83. Bosnia and Herzegovina claims that it is a “successor State”
because:

(a) “succession of States” means the “replacement of one State by
another in the responsibility for the international relations of terri-
tory”, according to the very widely accepted definition given in both
Vienna Conventions on Succession of States of 1978 and 1983; and

(b) “it is obvious that Bosnia and Herzegovina has replaced the former
SFRY for the international relations of what was the Federal
Republic of Bosnia and Herzegovina before the dissolution of
former Yugoslavia” (Memorial, para. 4.2.1.26).

On the contrary, the position of Yugoslavia in the subject-matter is
that “the so-called Republic of Bosnia and Herzegovina has not become
a State party to that 1948 Convention on the Prevention and Punishment
of the Crime of Genocide in accordance with the provisions of the Con-
vention itself” (Submissions, B.1) because:

(a) “The Applicant State cannot enter into the international treaties of
the predecessor State on the basis of succession because it flagrantly
violated the principle of equal rights and self-determination of
peoples” (Preliminary Objections, para. B.1.2.39);

(b) “As the Applicant State has violated the obligations deriving from
the principle of equal rights and self-determination of peoples, the
Vienna Convention on the Succession of States in Respect of
Treaties could not apply to this case even if it had come into
force” (ibid., para. B.1.3.5); and

(c) “Notification of succession is a manner of entry into treaties of the
predecessor State in cases where the new State has based its exist-
ence upon the principle of equal rights and self-determination of
peoples. In this particular case, the Applicant State has based its
existence on the violation of duties deriving from the principle of
equal rights and self-determination of peoples, and thus cannot
make use of the notification of succession as a method of entry
into the international treaties of its predecessor State.” (J/bid.,
para. B.1.4.11.)

The essence of this objection by Yugoslavia is that because of its

156

748 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

“flagrant violation of the principle of equal rights and self-determination
of peoples”, Bosnia and Herzegovina was not a successor State and
hence could not have acquired the capacity of State party to the 1948
Convention on Genocide on the grounds of succession.

To make a valid conclusion on the merits of the objection, it is
necessary to answer the question of whether there is a connection between
succession of States and legality of territorial changes.

84. The answer to this question implies a precise definition of the con-
cept of succession. The term “succession” is used in a broad, imprecise
meaning.

“Succession of States means both the territorial change itself — in
other words, the fact that within a given territory one State replaces
another — and the succession of one of those States to the rights and
obligations of the other, 1.e., the State whose territory has passed to
the successor States.” !23

It can be seen that the term “succession” means two things: (a) territo-
rial change itself; and (6) transmission of rights and obligations from
predecessor State to successor State(s).

The distinction between succession taken in terms of territorial change
(de facto succession) and succession as transmission of derived rights and
obligations from predecessor State to successor State(s) (de jure succes-
sion) is drawn also by the Convention on Succession of States in respect
of Treaties, referred to by Bosnia and Herzegovina in order to prove its
status of “Successor State”. This Convention in its Article 2 (b) (Use of
Terms) defines “succession of States” as “the replacement of one State by
another in the responsibility for the international relations of the terri-
tory”. At the same time, Article 6 (Cases of Succession of States Covered
by the Present Convention) specifies that the Convention “applies only to
the effects of a succession of States occurring in conformity with the
international law and, in particular, the principles of international law
embodied in the Charter of the United Nations”. Relations between
Article 2 (b) and Article 6 of the Convention are precisely defined in
the Comment to Article 2 of the Draft Articles on Succession of States in
respect of Treaties on the basis of which Article 2 of the Convention on
Succession of States in respect of Treaties was adopted. This Comment,
inter alia, says:

“the term [‘succession’] is used as referring exclusively to the fact of
replacement of one State by another in the responsibility for inter-

123 H. Kelsen, Dictionnaire de la terminologie du droit international, Vol. 42, p. 314.
Thus O’Connell, The Law of State Succession, 1956, pp. 3, 6; K. Zemanek, “Die Wiener
Konvention über die Staatennachfolge in Veträge”, Festschrift für Alfred Verdross, 1980,
p. 719; M. Jones, “State Succession in Matter of Treaties”, British Year Book of Inter-
national Law, 1947, Vol. 24, pp. 360-361.

157

749 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

national relations of territory leaving aside any connotation of inheri-
tance of rights or obligations on the occurrence of that event” !*.

Such a definition of succession corresponds to the basic concept of
“succession of States” which emerged from the study of the topic by the
International Law Commission. More particularly:

“The approach to succession adopted by the Commission after its
study of the topic of succession in respect of treaties is based upon
drawing a clear distinction between, on the one hand, the fact of
replacement of one State by another in the responsibility for the
international relations of a territory and, on the other, the transmis-
sion of treaty rights and obligations from the predecessor to the suc-
cessor State...

In order to make clear the distinction between the fact of replace-
ment of one State by another and the transmission of rights and obli-
gations, the Commission inserted in article 2 a provision defining
the meaning of the expression ‘succession of States’ for the purpose
of the draft. Under this provision the expression ‘succession of
States’ is used throughout the articles to denote simply a change in
the responsibility for the international relations of a territory, thus
leaving aside from the definition all questions of the rights and obli-
gations as a legal incident of that change.” !?5

This distinction was necessary as

“the difficulty stemmed from the fact that the expression ‘succession’
was not qualified in the definitions of it given in art. 2 (1, 5). From
that paragraph it might be deduced that the convention was also
intended to apply to unlawful successions” 126,

Because of that,

“art. 6 was the most important saving clause of the draft articles,
since it safeguarded the legality of all provisions of the future con-
ventions by limiting their application to the effects of lawful succes-
sion... the provisions of the future convention would not apply to

124 Draft Articles on Succession of States in respect of Treaties, Yearbook of the Inter-
national Law Commission, 1972, Vol. Tl, p. 231, para. 3; identical interpretation was
quoted in extenso in the comment to Article 2 of the Draft Articles on Succession of
States in respect of State Property, Archives and Debts, ibid., Vol. II, Part Two, p. 21.

125 Yearbook of the International Law Commission, 1972, Vol. I], p. 226, paras. 29-30.
126 Sette-Camara, UNCSS, First Session, p. 53, para. 11.

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750 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

unlawful transfers which were contrary to the will of people and to
the principle of self-determination” !27.

Therefore, “succession of States” in terms of “replacement of one State
by another in the responsibility for the international relations of terri-
tory” “does not mean ipso facto a juridical substitution of the acquiring
State in the complex rights and duties possessed by the previous sover-
eign” # or, in the present case, entry into the international treaties of
SFRY as a predecessor State. The condition thereto is that the “replace-
ment of one State by another” occurred “in conformity with interna-
tional law, in particular, with the principles of international law em-
bodied in the Charter of the United Nations”.

85. A provision concerning territorial changes to be effected “in con-
formity with international law and, in particular, with the principles of
international law embodied in the Charter of the United Nations” has a
declarative impact. So,

“even if the article did not appear in the convention, that instrument
would apply only to lawful succession from the point of view of the
principles of international law especially those embodied in the UN
Charter, which was the keystone of all international conventions” !?,

The principle underlying the provision of Article 6 of the Convention on
Succession of States in respect of Treaties is a self-evident principle, axio-
matic to any legal order stricto sensu, It is ratione materiae a narrowed
projection of the general concept of lawfulness of acts, an application of
the concept of lawfulness to the questions of succession. In view of the
material significance of lawfulness for the very existence of a de jure
order, the rule making provisions of any codification applicable only to
the facts occurring and situations established in conformity with interna-
tional law is a general presumption, a self-explanatory matter'2°, The
reason for a universal provision of legality led the Commission separately
to specify the rule limiting the application of the provisions of the Con-
vention to the cases of lawful succession:

“Other members, however, were of the opinion that in regard,
particularly, to transfers of territory it was desirable to underline

127 Tabibi, UNCSS, First Session, p. 54, para. 20.

128 Q’Connell, op. cit., p. 3.
129 Ushakov, UNCSS, First Session, pp. 54-55, para. 24.

130 “to admit that, apart from well-defined exceptions, an unlawful act, or its immediate
consequences, may become suo vigore a source of legal right for the wrongdoer, is to
introduce into a legal system a contradiction which cannot be solved except by
denial of its legal character. International law does not and cannot form an excep-
tion to that imperative alternative.” (H. Lauterpacht, Recognition in International
Law, 1947, p. 421.)

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751 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

that only transfers occurring in conformity with international law
should fall within the concept of ‘succession of States’ for the pur-
pose of the present articles. Since, to specify the element of conform-
ity with the international law with reference to one category of suc-
cession of States might give rise to misunderstandings as to the
position regarding that element on other categories of succession of
States, the Commission decided to include amongst the general
articles a provision safeguarding the question of lawfulness of the
succession of States dealt with in the present articles. Accordingly,
article 6 provides that the present articles relate only to the effects
of a succession of States occurring in conformity with international
law.” "3!

86. Notification of succession is only a technical means by which the
successor State expresses its consent to be considered bound by the treaty
whose original party is the predecessor State. Hence, to make a notifica-
tion of succession produce its intended legal effects, the actual succession
must have been lawful. The criterion of lawfulness of the succession is
“international law and, in particular, the principles of international law
embodied in the Charter of the United Nations”.

In the present case, and with regard to the position of Bosnia and
Herzegovina, of special importance are the principles of territorial integ-
rity and political unity, and of equal rights and self-determination of
peoples.

The specific relevance of those principles for the matter of succession is
a logical consequence of the nature of changes activating the institution
of succession and the role of equal rights and self-determination of
peoples in constituting new States. Hence, these principles of the United
Nations Charter have been particularly accentuated. The Special Rap-
porteur, Mr. Mohammed Bedjaoui, stated in his proposal concerning
lawfulness of succession that,

“The conditions for succession of States shall include respect for
general international law and the provisions of the United Nations
Charter concerning the territorial integrity of States and the right of
peoples to self-determination.” !*?

The Preamble to the Convention on Succession of States in respect of
Treaties “recall[s] that respect for the territorial integrity and political
independence of any State is required by the Charter of the United

13 UNCSS, First Session, p. 236, para. |.

'32 Fifth Report on succession in respect of matters other than treaties, doc.
A/CN.4/259, Yearbook of the International Law Commission, 1972, Voi. II, p. 66,
para. 28.

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752 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

Nations”. That wording confirms that the existence of territorial integrity
and political independence derive from the United Nations Charter and,
hence, binds the States irrespective of the Convention.

87. The proclamation of Bosnia and Herzegovina as a “sovereign and
independent state” constitutes, in my view, a substantial breach of the
cogent norm on equal rights and self-determination of peoples in both
the formal and material sense.

A substantial breach in the formal sense is reflected in the following:

(a) the procedure of proclamation of Bosnia and Herzegovina was con-
ducted in an unconstitutional way, contrary to the relevant provi-
sions of its own Constitution and that of the SFRY;

(6) self-determination in the subject case was de facto conceived as a
right of a territory within a sovereign, independent State, rather
than as a right of peoples.

The breach of the norm on equal rights and self-determination of
peoples in a material sense is reflected in the following:

(a) the proclamation of independence of a federal unit of Bosnia and
Herzegovina, in violation of relevant provisions of the internal law
of the SFRY and of Bosnia and Herzegovina, endangered the terri-
torial integrity and political unity of SFRY, in contravention of the
provision of paragraph 7 of the Declaration on Principles;

(b) the proclamation of the independence of Bosnia and Herzegovina
within its administrative borders was not based on the equal rights
and self-determination of all three peoples of Bosnia and Herze-
govina.

Therefore, the proclamation of the independence of Bosnia and Herze-
govina was not in conformity with the relevant principles of equal rights
and self-determination of peoples, and territorial integrity and political
unity and, as such, has no merit for lawful succession in terms of the suc-
cession of Bosnia and Herzegovina with respect to the Convention on
Prevention and Punishment of the Crime of Genocide.

88. By its nature, the proclamation of Bosnia and Herzegovina’s inde-
pendence was an act of secession. Bosnia and Herzegovina does not con-
test that assertion of Yugoslavia. It is taken from paragraph 3.22 of the
Statement of Bosnia and Herzegovina which reads:

“whether or not Bosnia, at the time of its secession, had a right to
self-determination is irrelevant because: (1) it is now a recognized,
sovereign State, and (2) even if, arguendo, it were supposed that it
had no right to self-determination in international law, international
law certainly did not prohibit its achieving the status of an indepen-
dent State at the occasion of the disintegration of the Former

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753 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

Socialist Federal Republic of Yugoslavia.” (Statement of the
Government of the Republic of Bosnia and Herzegovina on Prelimi-
nary Objections, p. 60.)

89. Secession is, per definitionem, “the creation of a State by the use or
threat of force and without the consent of the former sovereign” !#.
Therefore it is understandable that the

“United Nations Charter does not recognize the term or concept of
‘secession’, for this concept is profoundly at odds with the spirit and
normative principles of the Charter. The Charter raises respect for
territorial integrity to the rank of a constitutional norm, a norm of
jus cogens. On January 1, 1970, the UN Secretary-General made the
following statement:

‘So, as far as the question of secession of a particular section of a
Member State is concerned, the United Nations’ attitude is un-
equivocal. As an international organization, the United Nations has
never accepted and does not accept, and I do not believe it will ever
accept, the principle of secession of a part of a Member State.’” 13

The Security Council has characterized secession as illegal. In its resolu-
tion 169 (1961) on the Congo, the Security Council, inter alia,

“strongly deprecate{d] the secessionist activities illegally carried out
by the provincial administration of Katanga with the aid of external
resources and manned by foreign mercenaries . . . and

Declare{d],
(d) that all secessionist activities against the Republic of Congo are
contrary to the Loi fondamentale”.
The implicit characterization of secession as an illegal act under inter-
national law can be found in paragraph 7 of the “Declaration of Prin-
ciples of International Law Concerning Friendly Relations among

States” which stipulates, inter alia, that the right to self-determination
shall not be construed as

“authorizing or encouraging any action which could dismember or
impair, totally or in part, the territorial integrity or political unity of
sovereign and independent States”.

On the regional, European level, such a characterization of secession is
contained in the Declaration on Principles Guiding Relations between

'33 J. Crawford, The Creation of States in International Law, 1979, p. 247.
134 United Nations, Monthly Chronicle, Vol. 7, p. 36 (February 1970).

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754 APPLICATION OF GENOCIDE CONVENTION (DISS. OP, KRECA)

Participating States contained in the Conference on Security and Co-
operation in Europe (CSCE) Final Act adopted on | August 1975 at
Helsinki:

“(t]he participating States regard as inviolable all one another’s fron-
tiers as well as the frontiers of all States in Europe and therefore they
will refrain now and in future from assaulting these frontiers”.

On the other hand, an explicit condemnation of secession can be found in
the general principles of law recognized by civilized nations as a formal
source of international law pursuant to Article 38 fc} of the Statute
of the International Court of Justice. Secession is deemed to be a most
serious crime by the national legislations of civilized nations. More par-
ticularly, an inside assault on the territorial integrity of a country
or an attempted assault, including preparatory actions, are categorized
as one of the gravest of crimes in virtually all the criminal codes of
civilized nations.

90. The admission of Bosnia and Herzegovina to the United Nations
cannot convalidate substantial legal defects in its establishment as an
independent State, especially because of the need to draw a sharp distinc-
tion between

“secession in pursuance of, and in violation of, self-determination.
Where the territory in question is a self-determination unit it may be
presumed that any secessionary government possesses the general
support of the people: secession in such a case, where self-determi-
nation is forcibly denied, will be presumed to be in furtherance of, or
at least not inconsistent with, the application of self-determination
to the territory in question.” !°

There is not much doubt that the admission of Bosnia and Herze-
govina to the United Nations has given general, political support to Bos-
nia and Herzegovina. However that political support does not, and could
not, be interpreted as a subsequent convalidation of illegality of Bosnia
and Herzegovina’s birth. Even if the General Assembly had such an
intention in mind when admitting Bosnia and Herzegovina to the mem-
bership of the United Nations, such an outcome was legally impossible,
since such an act implied a derogation from the self-determination of
peoples which has the character of jus cogens. Norms of jus cogens do
not tolerate derogation, so any concurrent régime or situation, whether it
be established by way of a bilateral or unilateral act, cannot acquire legal
force due to the peremptoriness of jus cogens — more specifically, this act
or acts remains in the sphere of simple facts. One could say that this is a
classic example of application of the general principle of law expressed in

133 J Crawford, op. cit., p. 258; see also, separate opinion of Judge Ammoun, Western
Sahara, 1. C.J. Reports 1975, pp. 99-100.

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755 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

the maxim guidguid ab initio vitiosus est, non potest tractu fermporis
convalescere.

In my opinion, therefore, the meaning of the admission of Bosnia and
Herzegovina to the United Nations is confined to the recognition of
Bosnia and Herzegovina as a fact, and has no impact on the legality of
its birth. Such a conclusion corresponds to the fact that

“[rlecognition by the UN means that a State (or its government) will
be invited to important international conferences, allowed to accede
to numerous international treaties and to become a Member of
several international organizations and to send observers to
others” 4,

91. By rejecting Yugoslavia’s third preliminary objection, the Court
has responded to one side of the question of its jurisdiction ratione per-
sonae. The other side of the question relates to the status of Yugoslavia
as a party to the Genocide Convention. I am in agreement with the
Court’s finding that Yugoslavia is a party to the Genocide Convention
but I disagree with the Court’s reasoning leading to that finding.

With regard to Yugoslavia’s status as a party to the Genocide Conven-
tion, the Court states that:

“it has not been contested that Yugoslavia was party to the
Genocide Convention [and] . . . was bound by the provisions of the
Convention on the date of the filing of the Application in the
present case . . .” (para. 17 of the Judgment).

The Court bases this conclusion on the following:

(a) “that it has not been contested that Yugostavia was party to the
Genocide Convention”, and
fb) that

“[alt 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 Fed-
eral Republic of Yugoslavia, shall stnetly abide by all the com-
mitments that the Socialist- Federal Republic of Yugoslavia
assumed internationally.’

This intention thus expressed by Yugoslavia to remain bound
by the international treaties to which the former Yugoslavia was
party was confirmed in an official Note of 27 April 1992 from
the Permanent Mission of Yugoslavia to the United Nations,
addressed to the Secretary-General.” (Para. 17 of the Judgment.)

56 H. G. Schermers, faternational Constitutional Law, 1980, p. 929.

164

756 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

I agree with the Court that Yugoslavia is a party to the Genocide Con-
vention but its reasoning regarding the effect of the formal declaration
issued on 27 April 1992 does not appear to be tenable.

92. A logical meaning of the pronouncement that “it has not been con-
tested that Yugoslavia was party to the Genocide Convention” is that
Yugoslavia is a party to the Genocide Convention because its status as a
party has not been contested.

It is true that the proceedings on preliminary objections are substan-
tially based on the initiative of the parties. However, that does not mean
that the parties have the right to determine the jurisdiction of the Court.

By a decision on preliminary objections, the Court might be said to
achieve two mutually connected and interdependent objectives:

(a} the direct objective is that the Court decides on the objection in the
form of a judgment “by which it shall either uphold the objection,
reject it, or declare that the objection does not possess, in the
circumstances of the case, an exclusively preliminary character”
(Art. 79 (7) of the Rules of Court);

(b) the indirect objective is to ascertam or confirm its jurisdiction. In the
light of this objective, preliminary objections raised by a party are
only a tool, a procedurally designed instrument for the establish-
ment of the jurisdiction of the Court, suo nomine et suo vigore, for
according to its Statute it is under an obligation to do so — not
proprio motu but ex officie. For,

“t]he Court is the guardian of its Statute. It is not within its
power to abandon . . . a function which by virtue of an express
provision of the Statute is an essential safeguard of its compulsory
jurisdiction. This is so in particular in view of the fact that the
principle enshrined in Article 36 (6) of the Statute is declaratory of
one of the most firmly established principles of international arbi-
tral and judicial] practice. That principle is that, in the matter of its
Jurisdiction, an international tribunal, and not the interested party,
has the power of decision whether the dispute before it is covered
by the instrument creating its jurisdiction.” 7

93. The participants in the Joint Session of the SFRY Assembly, the
National Assembly of the Republic of Serbia and the Assembly of the
Republic of Montenegro have declared, inter alia, by a Declaration made
on 27 April 1992:

“The Federal Republic of Yugoslavia, continuing the State, inter-
national, legal and political personality of the Socialist Federal

137 Interhandel, Preliminary Objections, Judgment, LCI Reports 1959, dissenting
opinion of Sir Hersch Lauterpacht, p. 104 (emphasis added).
P P

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757 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

Republic of Yugoslavia, shall strictly abide by all the commitments
that the SFR of Yugoslavia assumed internationally in the past.

At the same time, it shall be 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 within the conference on Yugo-
slavia have been regulated.

Remaining bound by all obligations to international organizations
and institutions whose member it is, the Federal Republic of Yugo-
slavia shall not obstruct the newly-formed States to join these organi-
zations and institutions, particularly the United Nations and its
specialized agencies.

The Diplomatic and Consular Missions of the Federal Republic
of Yugoslavia shall continue without interruption to perform their
functions of representing and protecting the interests of Yugoslavia.

They shall also extend consular protection to all nationals of the
SFR Yugoslavia whenever they request them to do so until a final
regulation of their nationality status.

The Federal Republic of Yugoslavia recognized, at the same time,
the full continuity of the representation of foreign States by their
diplomatic and consular mission in its territory.” '8

This declaration, per se, cannot be qualified as a basis for being bound
by the Genocide Convention, at least on account of the two basic
reasons, one being of a formal and the other of a material nature.

The formal reason resides in the nature of the declarations in the con-
stitutional system of Yugoslavia. The declarations of the Assembly in the
constitutional system of Yugoslavia have, since its foundation, repre-
sented general political acts of the representative body, which have as
their subject the questions which are not subject to legal regulations or
are not included within the competence of the representative body '**. As
political acts, they are not binding, so they do not contain legal sanctions
for the case of non-observance.

The “Participants to the Joint Session of the SFRY Assembly, the
National Assembly of the Republic of Serbia and the Assembly of the
Republic of Montenegro, and the Federal Assembly itself’ are not organs

138 Constitution of the Federal Republic of Yugosavia, Belgrade, 1992, pp. 57-58.

139 M. Snuderl, Constitutional Law, Ljubljana, 1957, Vol. IL, p. 47; A. Fira, Constitu-
tional Law, Belgrade, 1977, p. 381.

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758 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

of foreign representation authorized to appear on behalf of the State in
international relations, so that, the measures they adopt, even when
legally binding, cannot be put into effect by one-sided acts of State
organs which have such authority. The material reason concerns the
content of the Declaration. The statement that the Federal Republic of
Yugoslavia “shall strictly abide by all the commitments that the SFR
Yugoslavia assumed internationally” is not given in the Declaration in
abstracto, in the form of an unconditional, generalized acceptance of the
commitments that the SFRY assumed internationally in the past, but as
a declarative expression of the premise that the FR of Yugoslavia is
“continuing the State, international, legal and political personality of the
Socialist Federal Republic of Yugoslavia”. This fact is not contested by
Bosnia and Herzegovina, for it asserts that

“it is on the basis of this alleged ‘continuity’ that Yugoslavia (Serbia
and Montenegro) considers itself to be bound by all international
commitments undertaken by the former SFRY” (Memorial,
para. 4.2.2.11).

According to the Declaration, the FR of Yugoslavia does not assume the
obligations of the SFRY, but “remains bound by ail obligations to inter-
national organizations and institutions of which it is a member” (emphasis
added).

At the meeting of the Federal Chamber of the Assembly of the SFRY
held on 27 April 1992, which proclaimed the Constitution of the Federal
Republic of Yugoslavia, the President of the Assembly of Serbia empha-
sized, in his introductory speech, inter alia, that:

“{t]he adoption of one-sided acts by some of the republics on their
secession from Yugoslavia and the international recognition of those
republics in the administrative borders of the former Yugoslavia
republics forced the Yugoslav peoples who want to continue to live
in Yugoslavia to rearrange the relations in it”

and that “Serbia and Montenegro do not recognize that Yugoslavia is
abolished and does not exist” '. Another opening speaker, the President
of the Assembly of Montenegro emphasized that Serbia and Montenegro
were “the only states which brought their statehood with them on the
creation of Yugoslavia, and decided to constitutionally rearrange the
former Yugoslavia” !*?.

Moreover, even if the intention of the FR of Yugoslavia to assume

140 Politika, Belgrade, 28 April 1992, p. 6.
141 Jbid. (emphasis added).

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759 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

formally the obligations of the SFRY were built into the Declaration, the
Declaration, as the external textual expression of such an intention, could
hardly represent anything more than a political proclamation which
should be operationalized, in the absence of rules on automatic succes-
sion, in accordance with the relevant rules of the Law of Treaties on the
expression of consent to be bound by a treaty.

94. Whereas after the adoption of its Constitution on 27 April 1992,
Yugoslavia did not express its consent to be bound by the Genocide Con-
_ vention in the way prescribed by Article XI of the Convention and nor
did it send to the Secretary-General of the United Nations the notifica-
tion of succession, it is obvious that the only possible legal basis on which
Yugoslavia could be considered a party to the Genocide Convention is
the legal identity and continuity of the SFRY in the domain of multi-
lateral treaties.

In the practice of the Secretary-General as depositary of multilateral
treaties, Yugoslavia figures also, after the territorial changes which took
place in the period 1991-1992, as a party to the multilateral treaties
deposited with the Secretary-General, although the FR of Yugoslavia did
not express its acceptance to be bound by concrete treaties in the ways
fixed by the treaties, nor did it address to the Secretary-General as
depositary the appropriate notifications of succession. The date when the
FR of Yugoslavia expressed its acceptance to be bound is mentioned as
the day on which it was bound by that specific instrument. Exempli
causa, in the “Multilateral Treaties Deposited with the Secretary-Gen-
eral” for 1992, and in the list of “Participants” of the Convention on the
Prevention and Punishment of the Crime of Genocide, “Yugoslavia” is
included, and the 29 August 1950 is mentioned as the date of the accept-
ance of the obligation — the date on which the SFRY ratified that Con-
vention. Identical dates are also found in the issues of the “Multilateral
Treaties Deposited with the Secretary-General” for 1993 and 1994. Such
a model is applied, mutatis mutandis, to other multilateral conventions
deposited with the Secretary-General of the United Nations.

Therefore, it is indisputable that the practice of the Secretary-General
as the depositary of the multilateral treaties consistently qualifies Yugo-
slavia as a party to these multilateral treaties on the basis of the accept-
ance of those treaties expressed by the SFRY.

95. On the basis of existing practice, the “Summary of Practice of the
Secretary-General as depositary of Multilateral Treaties? concludes:

“The independence of a new successor State, which then exercises
its sovereignty on its territory, is of course without effect as concerns
the treaty rights and obligations of the predecessor State as concerns
it own (remaining) territory. Thus, after the separation of parts of
the territory of the Union of Soviet Socialist Republics (which

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760 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

became independent States), the Union of Soviet Socialist Republics
(as the Russian Federation) continued to exist as a predecessor
State, and all its treaty rights and obligations continued in force in
respect of its territory . . . The same applies to the Federal Republic
of Yugoslavia (Serbia and Montenegro), which remains as the pre-
decessor State upon separation of parts of the territory of the former
Yugoslavia. General Assembly resoJution 47/1 of 22 September 1992,
to the effect that the Federal Republic of Yugoslavia could not auto-
matically continue the membership of the former Yugoslavia in the
United Nations (see para. 89 above), was adopted within the frame-
work of the United Nations and the context of the Charter of the
United Nations, and not as an indication that the Federal Republic
of Yugoslavia was not to be considered a predecessor State.” 142

On the other side, a

“different situation occurs when the predecessor State disappears.
Such was the case when the Czech Republic and Slovakia were
formed after the separation of their territories from Czechoslovakia,
which ceased to exist. Each of the new States is then in the position
of a succeeding State.” 14

Such a practice is completely in accordance with the interpretation of
the range of resolution 47/1 of the General Assembly of the United
Nations which, otherwise, serves as the basis of the contentions that
Yugoslavia, by the mere fact of territorial changes lost, ipso facto, the
status of party to multilateral conventions.

In the letter from the United Nations Office of Legal Affairs of
16 April 1993, it is stated, inter alia, that

“the status of Yugoslavia as a party to treaties was not affected by
the adoption of the General Assembly resolution 47/1 of 22 Septem-
ber 1992. By that resolution, the General Assembly decided that the
Federal Republic of Yugoslavia (Serbia and Montenegro) shall not
participate in the work of the General Assembly. It did not address
Yugoslavia’s status as a party to treaties.”

96. Regarding the qualification mentioned in paragraph 297 of the
“Summary”, the Permanent Representative of the United States to the
United Nations in her letter addressed to the Secretary-General dated
5 April 1996 (doc. A/51/95; S/1996/251, 8 April 1996) protested against

142 ST/LEG.8, p. 89, para. 297 (emphasis added).
'43 Jbid., para. 298.

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761 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

such a qualification. Four days later, on 9 April 1996, the Legal Counsel
of the United Nations issued “Errata” (doc. LA41TR/220) which, inter
alia, deleted the qualification of the FR of Yugoslavia as a predecessor
State contained in paragraph 297 of the “Summary”. Protests against such
a qualification of Yugoslavia were also expressed in the letters addressed to
the Secretary-General by the Permanent Representative of Germany to
the United Nations (doc. A/50/929; S/1996/263, 11 April 1996) and by
the Chargé d’Affaires ad interim of the Permanent Mission of Guinea
on behalf of the Organization of the Islamic Conference (OIC) and the
Contact Group on Bosnia and Herzegovina (doc. A/50/930; S/1996/260,
12 April 1996). Both of the latter letters were, however, dated 10 April
1996, i.e., after the “Errata” had been prepared and published.

The formal circumstances of this concrete question make, in my
opinion, both the objections and the “Errata” of the Legal Counsel of the
United Nations irrelevant. More particularly,

(a) The subject-matter of the objections submitted in the letters of the
permanent representatives of three member States of the Organiza-
tion are “views” and “interpretations” of the legal position of Yugo-
slavia as a predecessor State expressed in the “Summary of Practice
of the Secretary-General as depositary of multilateral treaties”, or,
to put it more precisely, in paragraphs 297 and 298 of that docu-
ment. In other words, the above-mentioned objections do not con-
cern the practice of the Organization and of its organs in the
concrete matter as an objective fact, but relate to the interpretation
of that practice presented in the “Summary”.

(b) “Errata” per definitionem represents “a mis-statement or misprint in
something that is published or written” !#.

Leaving aside the question of whether the “errata” are well
founded in this specific case, it is obvious that the document con-
cerns the relevant parts of the “Summary of Practice of the Secre-
tary-General” (emphasis added). A “Summary” by itself does not
have the value of an autonomous document, a document which
determines or constitutes something. It is just the condensed expres-
sion, the external lapidary assertion of a fact which exists outside it
and independently from it. In that sense, the Introduction to the
“Summary of the Practice of the Secretary-General as depositary of
multilateral treaties” says, inter alia, that “the purpose of the present
summary is to highlight the main features of the practice followed
by the Secretary-General in this field” (p. 1).

Therefore, the errata in this specific case do not question the rele-
vance of the practice of the Secretary-General as the depositary of

144 Webster’s Third New International Dictionary, 1966, p. 772.

170

762

(¢)

APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA}

multilateral treaties. This practice is, in relation to the status of the
FR of Yugoslavia as party to the multilateral treaties, uniform and
without exceptions, so that it has no pressing need of a “summary”
which would “highlight [its] main features”;

The fact that the term “Federal Republic” is not used before or after
the name “Yugoslavia” cannot, in my opinion, be taken as proof
that it does not concern the FR of Yugoslavia. The name “Yugo-
slavia” designates the Yugoslav State, regardless of the factual and
legal changes which it experienced during its existence, which were
also reflected in its name. For example, at the time when Yugoslavia
entered into the obligations under the Convention on the Prevention
and Punishment of the Crime of Genocide — in August 1950 — the
full name of the Yugoslav State was “Federal People’s Republic of
Yugoslavia". Yugoslavia is, on the basis of legal identity and conti-
nuity, a party to the conventions which bound — in the era of the
League of Nations — the Yugoslav State which was called, at that
time, the “Kingdom of Serbs, Croats and Slovenes”,

It follows that the terms such as the “former Yugoslavia” or the
“Federal Republic of Yugoslavia (Serbia and Montenegro)” per se
have no other meaning except the epistemiological one. In relation
to the SFRY, the Kingdom of Serbs, Croats and Slovenes represents
the “former Yugoslavia”, just as the “Democratic Federal Yugo-
slavia”, constituted at Session IT of the Anti-Fascist Assembly of the
People’s Liberation of Yugoslavia on 29 November 1943, represents
the “former Yugoslavia” in relation to the Federal People’s Repub-
lic of Wugoslavia established by the 1946 Constitution. The con-
ventional nature of such terms is also seen in the practice of the
principal organs of the United Nations with respect to the use of the
name “Federal Republic of Yugoslavia (Serbia and Montenegro)”.
Since 22 November 1995, the Security Council uses in its resolutions
1021 and 1022 the term “Federal Republic of Yugoslavia” instead
of the former “Federal Republic of Yugoslavia (Serbia and Mon-
tenegroy” without any express decision and in a legally unchanged
situation in relation to the one in which it, like other organs of the
United Nations, employed the term “Federal Republic of Yugo-
slavia (Serbia and Montenegro)”. The fact that this change in the
practice of the Security Council appeared on the day following
the initialling of the Peace Agreement in Dayton, gives a strong
basis for the conclusion that the concrete practice is not based on
objective, legal criteria but rather on political criteria.

97. The practice of the Secretary-General as the depositary of multi-
lateral treaties corresponds to the general legal principle that a diminu-
tion of territory does not of itself affect the legal personality of the State.

[71

763 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

This principle of international law is deeply rooted in international prac-
tice !%, As early as 1925, the arbitrator, Professor Borel, held in the Orta-
man Debt Arbitration that, notwithstanding both the territorial losses
and the revolution, “in international law, the Turkish Republic was
deemed to continue the international personality of the former Turkish
Empire” 146. In the practice of the United Nations, it is expressed in the
opinion given by the United Nations Secretariat regarding the secession
of Pakistan from India in which it was stated that “[t]he territory which
breaks off, Pakistan, will be a new State; .. . the portion which separated
was considered a new State; the remaining portion continued as an exist-
ing State with all the rights and duties which it had before” #7. A possible
exception cited is the case in which territorial changes affect the “terri-
torial nucleus” of a State'*®, which did not happen in the case of Yugo-
slavia since the “territorial nucleus” has been preserved !*.

98. It is noteworthy to underline that the practice of the Court is iden-
tical to the practice of the Secretary-General as depositary of multilateral
treaties. The Yearbook 1993-1994 of the International Court of Justice
says that:

“On 31 July 1994, the following 184 States were Members of the
United Nations:

State Date of Admission

Yugoslavia. . . . . . . . . . . . . . . Original Member.” '5°

An identical formulation is also found in the previous issue !$l. On the
basis of Article 93 (1) of the Charter of the United Nations, all Members
of the United Nations are ipso facto parties to the Statute.

Such a practice of the Court is in full agreement with the interpretation
of the scope of resolution 47/1 of the General Assembly given in a letter
which the Under-Secretary-General and the Legal Counsel of the United
Nations addressed on 29 September 1992 to the permanent representa-

145 D. Anzilotti, this is one of the most certain rules in international law: “nessun prin-
cipio più sicuro di questo nel diritto internazionale”, “La formazione del Regno d'Italia
nei guardi del diritto internazionale”, Revista di diritto internazionale, 19\2, p. 9.

146 Cited in K. Marck, Identity and Continuity of States in Public International Law,
1954, p. 40.

'47 United Nations Press Release PM/473, 12 August 1947 (Yearbook of the Interna-
tional Law Commission, Vol. II, p. 101).

148 Hall, A Treatise on International Law, 1924, p. 22; American Society of Interna-
tional Law, Panel on “State Succession and Relations with Federal States”, Gold Room,
Rayburn House Office Building, Washington, D.C., E. Williamson, United States State
Department, 1 April 1992, p. 10.

149 M. Akehurst, A Modern Introduction to International Law, 1984, p. 147.

150 7 CJ. Yearbook 1993-1994, No. 48, p. 67.

ISUZCJ. Yearbook 1992-1993, No. 47, p. 59.

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764 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

tives of Bosnia and Herzegovina and Croatia to the United Nations and
which asserts, inter alia, that “the resolution does not terminate nor sus-
pend Yugoslavia’s membership in the Organization” 152.

FIFTH PRELIMINARY OBJECTION

99. Three principal legal questions are raised by Yugoslavia’s fifth
preliminary objection, and relate to:

(a) the qualification of the conflict in Bosnia and Herzegovina;

(6) the territorial or non-territorial nature of the obligations of States
under the Genocide Convention; and

(c) the type of the State responsibility referred to in Article IX of the
Convention.

100. Having in mind the territorial nature of the obligations of States
under the Genocide Convention, the qualification of the conflict in Bos-
nia and Herzegovina is of considerable importance. Even if this question
is closely linked to the merits, this does not prevent the Court from

“mak[ing] a summary survey of the merits to the extent necessary to
satisfy itself that the case discloses claims that are reasonably argu-
able or issues that are reasonably contestable; in other words, that
these claims or issues are rationally grounded on one or more prin-
ciples of law, the application of which may resolve the dispute. The
essence of this preliminary survey of the merits is that the question
of jurisdiction or admissibility under consideration is to be deter-
mined not on the basis of whether the applicant’s claim is right but
exclusively on the basis whether it discloses a right to have the claim
adjudicated.” 153

In my opinion, the conflict in Bosnia and Herzegovina cannot be quali-
fied as “civil war” or “internal conflict” exclusively as Yugoslavia asserts.
That assertion is only partly correct.

The armed conflict in Bosnia and Herzegovina was a special, sui
generis conflict, in which elements of civil war and international armed
conflict were intermingled.

Elements of civil war were obviously present in the armed conflict in
Bosnia and Herzegovina; however, according to my opinion, they could
in no way be seen as its dominant characteristic. They were especially

152 United Nations, General Assembly, A/47/485, 30 September 1992, Annex.

153 Nuclear Tests, 1.C.J. Reports 1974, joint dissenting opinion of Judges Onyeama,
Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock, p. 364.

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765 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

expressed in the period of constitutional crisis before the proclamation of
the independence of Bosnia and Herzegovina by the incomplete parlia-
ment of Bosnia and Herzegovina. The passive, preparatory stage of that
war consisted especially of the acts of creation of national militias as
early as in 1991, while the active phase of the war started with attacks
against the organs of the central federal authorities, especially against the
units of the Yugoslav People’s Army.

After the proclamation of sovereignty and independence of Bosnia and
Herzegovina by the incomplete parliament of Bosnia and Herzegovina,
the civil war became, in my opinion, an international armed conflict, in
which one side consisted of a fictitious, de jure recognized State — the
Republic of Bosnia and Herzegovina — and the other side consisted of
two de facto States not recognized by the international community —
Republika Srpska and Herzeg-Bosna. This was bellum omnium contra
omnes, which is eloquently shown by the war between the Muslim authori-
ties in Sarajevo and Herzeg-Bosna in 1993, and by the war between the
authorities in Sarajevo and the alternative Muslim Autonomous Region
of Western Bosnia, proclaimed in September 1993.

101. The relevant passage of the Court’s Judgment relating to the
nature of the rights and obligations of States under the Convention reads
as follows:

“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 territo-
rially limited by the Convention.” (Para. 31 of the Judgment.)

In my opinion, it is necessary to draw a clear distinction, on the one
hand, between the legal nature of the norm prohibiting genocide, and, on
the other, the implementation or enforcement of that norm.

The norm prohibiting genocide, as a norm of jus cogens, establishes
obligations of a State toward the international community as a whole,
hence by its very nature it is the concern of all States. As a norm of jus
cogens it does not have, nor could it possibly have, a limited territorial
application with the effect of excluding its application in any part of the
international community. In other words, the norm prohibiting genocide
as a universal norm binds States in all parts of the world.

As an absolutely binding norm prohibiting genocide, it binds all sub-
jects of international law even without any conventional obligation. To
that effect, and only to that effect, the concrete norm is of universal
applicability (a norm erga omnes), and hence “non-territorality” as
another pole of limited territorial application may be taken as an element
of the very being of a cogent norm of genocide prohibition.

The position is different, however, when it comes to the implementa-
tion or enforcement of the norm of genocide prohibition. The norm pro-
hibiting genocide, like other international legal norms, is applicable by

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766 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

States not in an imaginary space, but in an area of the territoralized inter-
national community. And, as was pointed out by the Permanent Court of
International Justice in the “Lotus” case:

“Now the first and foremost restriction imposed by international
law upon a State is that — failing the existence of a permissive rule
to the contrary — it may not exercise its power in any form in the
territory of another State. In this sense jurisdiction is certainly terri-
torial; it cannot be exercised by a State outside its territory except by
virtue of a permissive rule derived from international custom or
from a convention.

In these circumstances, all that can be required of a State is that it
should not overstep the limits which international law places upon
its jurisdiction; within these limits, its title to exercise jurisdiction
rests in its sovereignty.” !*4

A territorial jurisdiction conceived in this way suggests, as a general
rule, the territorial character of the State’s obligation in terms of imple-
mentation of an international legal norm, both in prescriptive and enforce-
ment terms. If this were not the case, norm on territorial integrity and
sovereignty, also having the character of jus cogens, would be violated.

102. What is the status of the Genocide Convention? With respect to
the obligation of prevention of the crime of genocide, the Convention
does not contain the principle of universal repression. It has firmly opted
for the territorial principle of the obligation of prevention and

“the only action relating to crimes committed outside the territory of
the Contracting Party is by organs of the United Nations within the
scope of the general competence” !*.

Accordingly,

“the States are . . . obliged to punish persons charged with the com-
mission of acts coming under the Convention insofar as they were
committed in their territory” 156.

Article VII of the draft Genocide Convention, prepared by the Secre-
tary-General, was based on the concept of universal repression!*?. In its
draft Convention the Ad Hoc Committee on Genocide replaced the text
of Article VII, hence “the principle of universal repression was rejected
by the Committee by 4 votes (among which were France, the United

154 “Lotus”, Judgment No. 9, P.C.L.J., Series A, No. 10, pp. 18-19.

15$N. Robinson, The Genocide Convention, Its Origin and Interpretation, 1949,
pp. 13-14.

156 Jbid, p. 31.

157 Doc. E1447, p. 8.

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767 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

States of America and the Union of Soviet Socialist Republics) against 2
with 1 abstention” !58,

An unfavourable position regarding the principle of universal punish-
ment emerges also from declarations and reservations concerning the
Genocide Convention !*, Communication of Governments'® and by
non-governmental organizations that have a consultative status with the
Economic and Social Council 6!.

The Special Rapporteur concluded that

“since no international criminal court has been established, the ques-
tion of universal punishment should be reconsidered, if it is decided
to prepare new international instruments for the prevention and
punishment of genocide” '®.

The intention of the drafters of the Convention to establish territorial
obligations of States under the Convention clearly and irrefutably stems
from the provisions of Article XII of the Convention which reads:

“Any Contracting Party may at any time, by notification addressed
to the Secretary-General of the United Nations, extend the applica-
tion of the present Convention to all or any of the territories for the
conduct of whose foreign relations that Contracting Party is respon-
sible.” (Emphasis added.)

It is obvious that, if this were not the case, the said Article would be
deprived of all sense and logic.

103. Could a State be responsible for genocide? The Court finds, when
it refers to “the responsibility of a State for genocide or for any of the
other acts enumerated in Article III”, that Article IX 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’” (para. 32 of
the Judgment).

Such a position does not appear, in my opinion, to be tenable.

Article TV of the Genocide Convention, which stipulates criminal
responsibility for genocide or the other acts enumerated in Article TIT of
the Convention, has a twofold meaning:

(a) a positive meaning, starting from the principle of individual guilt,
since Article IV establishes as criminally responsible “persons . . .

158 See Study of the Question of the Prevention and Punishment of the Crime of Geno-
cide, prepared by N. Ruhashyankiko, Special Rapporteur, doc. E/CN.4/Sub.2/416, 4 July
1978, p. 49.

159 Thid., pp. 51-52.

160 /bid., pp. 52-55.

161 Jbid., p. 55.

162 Jbid., p. 56.

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768 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

whether they are constitutionally appointed rulers, public officials or
private individuals”. This rule represents /ex lata, because:

“international practice since the Second World War has con-
stantly applied the principle of individual criminal responsibility
for crimes of international law, including those of genocide” !®,

(b) a negative meaning — contained in the exclusion of criminal respon-
sibility of States, governments or State authorities and the rejection
of the application of the doctrine of the act of the State in this
matter. Such a solution is expressed in the positive international law.
The International Law Commission, when elaborating the Draft
Code of Offences against the Peace and Security of Mankind, con-
cluded, inter alia, in relation to the content ratione personae of the
Draft Code that:

“With regard to the content ratione personae, the Commission
took the view that its efforts at this stage should be devoted exclu-
sively to the criminal responsibility of individuals. This approach
was dictated by the uncertainty still attaching to the problem of
criminal responsibility of States . . . True, the criminal responsi-
bility of individuals does not eliminate the international responsi-
bility of States for the acts committed by persons acting as organs
or agents of the State. But, such responsibility is of a different
nature and falls within the traditional concept of State responsi-
bility . . . the question of international criminal responsibility
should be limited, at least at the present stage, to that of
individuals.” !*

The resolution built into Article TV of the Genocide Convention repre-
sents an expression of a broader understanding of the inability to establish
the criminal responsibility of legal persons (societas delinquere non potest).

The understanding is based on the premise that a criminal offence as a
phenomenon is reduced to a human action, that is to say, to a physical
act or to its omission. Since States are legal entities of an abstract char-
acter, persons without a physical body and incapable of criminal liability,
they thus cannot be guilty as perpetrators of criminal acts.

It is hardly necessary to state that the interest of safeguarding the
essential values of the international community involves the issue of
criminal responsibility of a State as illustrated, inter alia, by the Draft

163 Study of the Question of the Prevention and Punishment of the Crime of Genocide,
‘ prepared by Mr. N. Ruhashyankiko, Special Rapporteur, doc. E/CN.4/Sub.2/415, 4 July
1978, p. 36, para. 151.

164 Report of the International Law Commission on the work of its thirty-sixth session
(7 May to 27 July 1984 (doc. A/39/10), Yearbook of the International Law Commission,
1984, Vol. II, Part Two, p. 11, para. 32.

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769 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

Code of Offences against the Peace and Security of Mankind'®.
Theoretically, the issue of criminal responsibility of a State may be
situated within the framework of a pure model of a State authority or
State as the offender, namely in the framework of collective, simultaneous
responsibility of a State as a legal person and physical personality, as
its political representative.

However, the above are just projects which, irrespective of their rele-
vance, have not yet found a place within positive international law. This
fact per se, irrrespective of the circumstances of a concrete case, renders
the Court, as an authority implementing positive law to subject cases,
incapable of taking such projects into account or accepting them as rele-
vant. If this were not the case, the Court would step away from its fun-
damental judicial function and penetrate into the legislative or quasi-
legislative area 166.

104. Even in the hypothesis that, tractu temporis, since the Genocide
Convention came into force, criminal responsibility for genocide or for
any of the other acts enumerated in Article III has been extended to
States as well, the relevance of such a change to the subject case could be
highly questionable.

The rationale of such a question is the nature of the compromissory
clause contained in Article IX of the Genocide Convention. The estab-
lishment of jurisdiction of the Court for disputes concerning the interpre-
tation, application or fulfilment of the Convention is undoubtedly
precedent to the general rule of an optional character of the Court’s juris-
diction in international law. This fact has a dual meaning — legal and
meta-legal. In legal terms, precedent has to be strictly interpreted '°’, par-
ticularly when it comes to the restriction of the sovereign rights of States.
In this case, the jurisdiction of the Court is founded in relation to dis-
putes “relating to the interpretation, application or fulfilment of the
present Convention” (emphasis added). In other words, the Court has, on
the basis of Article IX of the Convention, jurisdiction to settle disputes
relating to the relevant provisions of the Convention but not such disputes
concerning the rules as might possibly exist outside its frame.

Meta-legal meaning resides in the fact that the extension of the
Court’s jurisdiction beyond the provisions of Article IX of the Conven-
tion would, in normal reasoning, inhibit the States in other cases. An
evident readiness of States to accept the binding jurisdiction of the

165 Yearbook of the International Law Commission, 1976, Vol. Il, Part Two, pp. 7-18.

166 “the enormity of the crime of genocide can hardly be exaggerated, and any treaty
for its repression deserves the most generous interpretation; but the Genocide Con-
vention is an instrument which is intended to produce legal effects by creating legal
obligations between the parties to it” (Reservations to the Convention on the Preven-
tion and Punishment of the Crime of Genocide, Advisory Opinion, 1.C.J. Reports
1951, joint dissenting opinion of Judges Guerrero, Sir Arnold McNair, Read and
Hsu Mo, p. 47).

167 P_C.L.J., Series A, No. 7, p. 76.

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770 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

Court on a broad basis would be strengthened by such a move on the
part of the Court.
105. Article IX of the Convention stipulates that:

“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 III, shall be submitted to the
International Court of Justice at the request of any of the parties to
the dispute.”

If one attempts to determine the genuine meaning of the wording “respon-
sibility of a State for genocide or for any of the other acts enumerated in
article III”, several elements are of crucial importance.

(a) Article IX by its nature is a standard compromissory clause. As a
procedural provision, it aims at determining the jurisdiction of the Court
within the co-ordinates of “interpretation, application or fulfilment” of
the material provisions of the Convention. Hence, interpretations of
Article IX of the Convention may not in concreto go beyond the provi-
sions on individual criminal responsibility stipulated in Article IV of the
Convention (see para. 101 above). As is forcefully expressed in the joint
separate opinion of Judges Sir Percy Spender and Sir Gerald Fitzmaurice
in the South West Africa case:

“The principle of interpretation directed to giving provisions their
maximum effect cannot legitimately be employed in order to intro-
duce what would amount to a revision of those provisions.” 168

(6) The wording “responsibility of a State for genocide or for any of
the other acts enumerated in article III” is abstract and broad in its
vagueness, particularly in terms of the convention on criminal law “in
which care should be taken to avoid giving the State a fictitious legal
character, a procedure which should only be used in civil or commercial
matters” 1%, What is more, the wording “responsibility of a State” is
incorporated into the procedural provisions of the Genocide Convention.
It is not used, however, in the operative part of the Convention to denote
a possible consequence of committing the crime of genocide. The reason
for such a solution is obviously to be traced in the option for individual
criminal responsibility for genocide or related punishable acts.

For, as Manley Hudson concludes:

“The article goes further, however, in ‘including’ among such dis-
putes ‘those relating to the responsibility of a State for genocide or
any of the other acts enumerated in Article III’. As no other provi-
sion in the Convention deals expressly with State responsibility, it is

168 1 CJ. Reports 1962, p. 468.
16 N. Ruhashyankiko, op. cit., p. 82, para. 314.

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771 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

difficult to see how a dispute concerning such responsibility can be
included among disputes relating to the interpretation or application
or fulfilment of the Convention. In view of the undertaking of the
parties in Article I to prevent genocide, it is conceivable that a dis-
pute as to State responsibility may be a dispute as to fulfilment of
the Convention. Yet read as a whole, the Convention refers to the
punishment of individuals only; the punishment of a State is not
adumbrated in any way, and it is excluded from Article V by which
the parties undertake to enact punitive legislation. Hence the ‘respon-
sibility of a State’ referred to in Article TK is not criminal liability.” '7°

The genuine meaning of the wording “responsibility of a State” should
hence be traced within the responsibility for the obligations entered into
by the parties under the Convention. Primary responsibilities of the
parties have been stipulated m Articles V and VI, and covering:

— an obligation to enact necessary legislation to give effect to the pro-
visions of the Convention; and

— the obligation of instituting legal proceedings for punishable acts pro-
vided for by Article III of the Convention against persons charged in
a competent tribunal of the State in the territory of which the act was
committed.

Obligations of the Contracting Parties “to enact . . . the necessary
legislation” and to punish persons who commit genocide and related
acts constitute a form of international responsibility of the State, responsi-
bility towards crucial interest of the international community as a
whole, built into the norm prohibiting genocide.

Given the nature of these obligations, one could hardly disagree with
the Special Rapporteur, Mr, N. Ruhashyankiko, that “at the present
stage in the development of international criminal law, the State can bear
only political responsibility for international crimes”!”!, or perhaps, in
more precise terms, the State can bear primarily political responsibility
for a failure to perform obligations concerning the prohibition and pun-
ishment of international crimes.

fc) The qualification of a State as a responsible entity for the crime of
genocide as a primarily political responsibility is not a priori exclusive of
the civil responsibility of a State. The civil responsibility of a State in the
matter of genocide may assume two forms of expression:

16 M. M. Whiteman, Digest of International Law, 1968, p. 857.

“A Study of the Question of the Prevention and Punishment of the Crime of Genocide,
prepared by Mr. N. Ruhashyankiko, Special Rapporteur, doc. EACN 4/Sub.2/416, 4 July
1978, p. 38, para. 159.

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772 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

(i) civil responsibility for the crime of genocide committed in its own
State territory; and

(ii) civil responsibility for the crime of genocide committed in the terri-
tory of another State.

In the eventuality contemplated by (i) above, it would be civil respon-
sibility under internal law which is to be considered and adjudicated in its
entirety by the internal judicial authorities of a contracting party.

A case falling under (ii) above would be different in terms of quality.
Leaving aside the conditions in which a State may be responsible for
genocide perpetrated in the territory of another State, civil responsibility
would be characterized by two stages. The first stage would comprise a
claim for reparations to the competent authorities of the State respon-
sible for genocide and adjudicated in the procedure established by its own
internal law. The second stage would involve an international litigation
for the reparation of losses incurred by genocide, the parties to it being
the State responsible for genocide and the State on whose territory geno-
cide was perpetrated. In other words, it would be a case of the typical

‘international civil responsibility of a State. Given the fact that the
national, ethnic, racial or religious group, as an object safeguarded from
the crime of genocide, has no /ocus standi in the Court, the State on
whose territory the crime has been perpetrated should espouse the cause
of the “national, ethnic, racial or religious” group after having exhausted
local legal remedies.

1 am convinced that the Genocide Convention provided for no interna-
tional civil responsibility of States for the crime of genocide. Such a stand-
ing of the Convention on the matter of international responsibility may of
course be qualified in more than one way, but it is difficult to infer any
conclusion on the force of the concept of international civil responsibility
within the fibre of the Convention, unless one strays into the area of legal
construction. It is easy to accept the view that the international civil
responsibility of States for the crime of genocide would strengthen the
effectiveness of prohibition of the crime of genocide. However, in the
present case, the question is reduced to the qualification of positive
law concerning responsibility for genocide and not to the qualification
of optimal solutions in abstracto. As suggested by Special Rapporteur
Whitaker

“when the Convention is revised consideration shall be given to
including provisions for a State responsibility for genocide together
with reparations” 172.

172 Review of further development in fields which the sub-commission has been con-
cerned with, revised and updated report on the question of the prevention and punish-
ment of the crime of genocide, prepared by Mr. V. Whitaker (E/CN.4/Sub.2/1985/6, 2 July
1985, p. 26, para. 54. :

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773 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)
SIXTH PRELIMINARY OBJECTION

106. With regard to the sixth preliminary objection raised by Yugosla-
via, the Court finds that:

“Bosnia and Herzegovina could become a party to the Conven-
tion through the mechanism of State succession. Moreover, the
Secretary-General of the United Nations considered that this had
been the case” (para. 20 of the Judgment)

and that

“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 automati-
cally became party to the Genocide Convention on the date of its
accession to independence 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.” (Para. 23 of the
Judgment.)

107. I must say that, in my view, the opposite is the case. No one
denies that Bosnia and Herzegovina “could become a party to the Con-
vention through the mechanism of State succession”. However, the real
question is not whether Bosnia and Herzegovina “could have become a
party”, for every new State has in principle that possibility, but whether it
became a party to the Convention through the succession mechanism. The
fact that the Secretary-General “considered that this had been the case”
is not of decisive importance, as the scope of depositary functions is
clearly defined in positive international law. As stated in the Commen-
tary to Article 77 (Functions of Depositaries) of the Convention on the
Law of Treaties:

a depositary has a certain duty to examine whether signatures,
instruments and reservations are in conformity with any applicable
provisions of the treaty or of the present articles, and if necessary to
bring the matter to the attention of the State in question. That is,
however, the limit of the depositary’s duty in this connexion. It is no
part of the functions to adjudicate on the validity of an instrument or
reservation,” '73

In other words it is firmly established that “the depositary is not invested

73 UNCLT, First and Second Sessions, Vienna, 26 March-24 May 1968 and 9 April-
22 May 1969, Official Records Documents of the Conference, p. 89, para. 4 (emphasis
added).

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774 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

with any competence to adjudicate upon or to determine matters arising in
connexion with the performance of its functions” 74.

In my opinion, the Court had to consider whether Bosnia and Herze-
govina had become a party to the Convention on the basis of succession,
at least vis-a-vis Yugoslavia, for two reasons:

— in the formal sense, there exists a dispute between Bosnia and Herze-
govina and Yugoslavia in that the positions of the parties to the dis-
pute in relation to “automatic succession” are radically opposed.
While Bosnia and Herzegovina considers automatic succession to be
a feature of positive international law and therefore contends that “it
has automatically succeeded to the Genocide Convention” '75, Yugo-
slavia denies this, claiming that “the ‘clean slate’ rule has been and
remains in force as a rule of customary international law for new
States” !76,

(It should be noted that expressions such as “automatic succession
to the Genocide Convention” or “has automatically succeeded to the
Genocide Convention” are not sufficiently precise and are, conse-
quently, incorrect. The objects of succession are not treaties as legal
acts but concern the status of the parties to the concrete treaty and/or
the rights and obligations stipulated by that treaty. If treaties as legal
acts were the object of succession, then succession would also apply
to treaties whose obligation has been performed, for they are as valid
as before, albeit merely of historical interest, which is clearly not the
case.)

— in the material sense, as Bosnia and Herzegovina did not express its
consent to be bound by the Convention in the way prescribed by
Article XI of the Convention, the rules of succession are the only
possible basis on which Bosnia and Herzegovina could be considered
a party to the Genocide Convention.

108. The Genocide Convention, by its nature, is a convention in the
field of international criminal law. This is something which results from
the very nature of the matter, and which hardly needs arguing. A conven-
tion which has, as its subject, the definition and punishment of genocide
as a crime under international law, and whose provisions are imple-
mented through national criminal legislation, could hardly be defined in
a different way. Another consideration is that in a community like the
international community, many conventions and other international legal
acts have a direct or indirect humanitarian meaning. Such a meaning of

174 UNCLT, First and Second Sessions, Vienna, 26 March-24 May 1968 and 9 April-
22 May 1969, Official Records, Documents of the Conference, p. 89, para. 8 (emphasis added).

175 Statement of the Government of the Republic of Bosnia and Herzegovina on Pre-

liminary Objections, 14 November 1995, para. 6.9 at p. 111 (emphasis added).
176 Preliminary Objections of the Federal Republic of Yugoslavia, para. B.1.4.10.

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775 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

international legal acts results unavoidably from the fact that, in the final
analysis, the international community is genus Awmanum, that in a system
whose original and basic subjects are abstract beings, the individual rep-
resents the final addressee of the legal rules. However, it could not be
concluded from that that the Genocide Convention is a humanitarian
convention, a convention which belongs to humanitarian law, because
that term denotes the rules contained in conventions and international
customs whose subject is “to reduce or limit the suffering of individuals,
and to circumscribe the area within which the savagery of armed conflicts
is permissible” {77 (in that sense it should be noted that the full name of
the Geneva Conference of 1974-1977 which adopted Protocols I and II
was “Diplomatic Conference on the Reaffirmation and Development of
International Humanitarian Law Applicable in Armed Conflicts”).

The qualification of a convention or of other international legal acts as
“humanitarian”, on the basis of the direct or indirect significance of that
convention for the legal status of individuals, would make the predomi-
nant part of international law a “humanitarian law”. Exempli causa, the
“humanitarian law” understood in such a way would include the instru-
ments which regulate the position of the minorities, the night of peoples
to self-determination, the conventions which punish acts of terrorism,
and, in general, all conventions in the field of international criminal law.

The term “humanitarian convention” or “convention of humanitarian
character” is used, so it seems, in order to stress the importance of the
convention. However, terms like “humanitarian convention”, “conven-
tion on human rights”, etc., do not, logically speaking, denote the legal
force of the convention, but rather its appurtenance to a species, in the
system of international law. The importance of a convention may rather
be expressed by other qualifications — in this concrete case by the
qualification according to which the Genocide Convention represents a
“general multilateral convention of universal interest”,

109. Article 34 (Succession of States in Cases of Separation of Parts of
a State) of the Convention on Succession in respect of Treaties (1978)
stipulates inter alfa:

“1. When a part or parts of the territory. of a State separate to
form one or more States, whether or not the predecessor State con-
tinues to exist:

fa) any treaty in force at the date of the succession of States in
respect of the entire territory of the predecessor State continues
in force in respect of each successor State so formed”.

The relevant provision of the cited Article has been formulated in terms
of automatic succession. Theoretically, it corresponds to the concept of

7. G. Starke, Introduction to International Law, 1989, p. 553.

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776 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

universal succession based on a strict analogy with the notion of inheri-
tance in civil law and/or the concept on legal succession (substitution +
continuation) according to which “the successor State under interna-
tional law succeeds to its predecessor’s rights and obligations, which
become its own” [translation by the Registry]'™.

In concreto, the fundamental question is the qualification of the term
“automatic succession” as stipulated by Article 34 of the Convention on
Succession in respect of Treaties (1978), i.e., does it constitute /ex /ata, a
part of positive international law — or not?

110. The answer to the fundamental question thus posed implies:

(a) a qualification of the solution established by Article 34 (1) of the
Convention from the standpoint of treaty law;

(6) a qualification of that solution from the standpoint of the practice
of States prior to the adoption of the Convention on Succession in
respect of Treaties;

(c) a qualification of the practice of States after the Convention was
adopted at the diplomatic conference in Vienna in August 1978.

Article 34 (Succession of States in Cases of Separation of Parts of a
State) is an integral part of the Convention on Succession in respect of
Treaties, hence the rule contained in it is a treaty rule and shares the fate.
of the Convention itself. Article 49 (Entry into Force) of the Convention
stipulates that:

“1. The present Convention shall enter into force on the thirtieth
day following the date of deposit of the fifteenth instrument of rati-
fication or accession.”

Since the condition for the coming into force of the Convention has not
been fulfilled, the Convention has not become a part of the positive legal
milieu. Consequently, the rule contained in Article 34 (1) is in a state of
lex ferenda.

The rule contained in Article 34 (1) could, naturally, be /ex lata outside
the framework of the Convention as an expression of existing customary
law. Does this rule merit the qualification of a customary rule?

The generally held view of customary law, endorsed by this Court !”9, is
that the creation of a rule of customary international law postulates:
“two constitutive elements: (1) a general practice of States, and (2) the
acceptance by States of the general practice as law” t#0,

An analysis of practice in cases of separation of parts of a State when

178 “Der Nachfolger des Vôlkerrechts aber tritt in Rechte und Pflichten seines Vor-
gingers so ein, als waren es seine eigenen” (H. M. Huber, Beitrdge zu einer Lehre von der
Staatensuccession, Berlin, 1897, p. 14).

19 Exempli causa, North Sea Continental Shelf cases, 1.C.J. Reports 1969, p. 44,
para. 77.

180 G. Schwarzenberger, A Manual of International Law, 1967, p. 32.

185

777 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

the predecessor State continues to exist suggests two principal conclu-
sions:

(a) In quantitative terms it is difficult, if not impossible, to speak of a
generalized practice in this respect. As the ILC loyally notes in its com-
mentary on Article 33 (Succession of States in Cases of Separation of
Parts of a State) and Article 34 (Position of a State Continues after Sepa-
ration of Part of Its Territory) of its Draft: “During the United Nations
period cases of separation resulting in the creation of a newly indepen-
dent State . .. have been comparatively few.” 8! Previous practice does
not substantively affect the argument because “[blefore the era of the
United Nations, colonies were considered as being in the fullest sense ter-
ritories of the colonial power”, hence, “some of the earlier precedents
usually cited ... in cases of secession concerned secession of colonies” !®?,
One could rather, and with greater justification, speak of a certain
number of precedents;

(b) These precedents in the qualitative sense have in common an iden-
tical position regarding treaties of the predecessor State — new States
were neither bound nor entitled ipso jure to the continuance of pre-
independence treaties. In relation to the period prior to the foundation of
the United Nations,

“(t]he majority of writers take the view, supported by State practice,
that a newly independent State begins its life with a clean slate,
except in regard to ‘local’ or ‘real’ obligations” '83.

The practice in the United Nations era is presented in the commentary on
Article 33 of the Draft (Article 34 of the Convention) with the cases of
Pakistan and Singapore. The case of Pakistan is qualified as the applica-
tion of the principle that on separation such a State has a “clean slate” in
the sense that it is not under any obligation to accept the continuance in
force of its predecessor’s treaties'®*. As far as Singapore is concerned, in
spite of the “devolution agreement” of 1965, it “adopted a posture simi-
lar to that of other newly independent States”, that is, “[wjhile ready to
continue Federation treaties in force, Singapore regarded that continu-
ance as a matter of mutual consent” !®.

181 Draft Articles on Succession of States in respect of Treaties with commentaries
adopted by the International Law Commission at its twenty-sixth session, United Nations
Conference on Succession of States in respect of Treaties, 1977 session and resumed ses-
sion 1978, Official Records, Vol. II], Documents of the Conference, p. 92, para. 17.

182 Jbid., p. 91, para. 12. °

183 Jhid., p. 41, para. 3.

184 Jbid., p. 92, para. 17.

185 Ibid., pp. 93-99, para. 18.

186

778 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

The ILC viewed the case of Pakistan as a “special one”'® probably
because it prompted a legal opinion of the United Nations Secretariat.
The relevant part of the opinion reads:

“1. From the viewpoint of international law, the situation is one
in which part of an existing State breaks off and becomes a new
State. On this analysis there is no change in the international status
of India; it continues as a State with all treaty rights and obligations
of membership in the United Nations. The territory which breaks
off, Pakistan, will be a new State, it will not have the treaty rights
and obligations of the old State...

In international law the situation is analogous to the separation of
the Irish Free State from Britain, and of Belgium from the Nether-
lands. In these cases the portion which separated was considered a

_new State; the remaining portion continued as an existing State with
all the rights and duties which it had before.” '$7

This legal opinion was given in connection with the concrete issue con-
cerning Pakistan’s position in relation to the Charter of the United
Nations, but its wording and argumentation clearly indicate that it was
designed as an opinion of principle. In any event, there are clear indica-
tions that States interpreted it as a principled position of the United
Nations with regard to the relationship of a part of a State territory
which breaks off and becomes a new State, to the treaty rights and obli-
gations of the old State '**,

111. It would appear that the main methodological approach of the
Commission in drafting Article 34 of the Convention was based on the
drawing of a distinction between two things:

(a) the obligation of the new State to continue to apply the treaties of
its predecessor to its territory after the succession of States; and,

186 United Nations Conference on Succession of States in respect of Treaties, 1977 ses-
sion and resumed session 1978, Official Records, Vol. I], Documents of the Conference,
p. 92, para. 17.

187 Legal opinion of 8 August 1947 by the Assistant Secretary-General for Legal
Affairs, approved and made public by the Secretary-General in United Nations Press
Release PM/473, 12 August 1947 (Yearbook of ihe International Law Commission, 1962,
Vol. Il, p. 101.

188 In the were verbale of its Permanent Mission to the United Nations received on
Li September 1963, the Government of Afghanistan bases its assertion that “Pakistan is
not a successor to British treaty rights because Pakistan is a new State” precisely on the
argument that the Secretary-General of the United Nations “denied the right of succes-
sion” to Pakistan — United Nations, Legisfative Series, Materials on Succession of
States, 1967 (ST/LEG/SER.B/14), p. 2, para. 3 fa} and footnote |.

187

779 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

(b) the right of the new State to consider itself a party to those treaties
in its own name after the succession of States !*.

The Commission proceeded explicitly from this distinction in formu-
lating the provisions of Article 15 of the Draft Convention which stipu-
lates that:

“A newly independent State is not bound to maintain in force, or
to become a party to, any treaty by reason only of the fact that at
the date of the succession of States the treaty was in force in respect
of the territory to which the succession of States relates.”

If the Commission was guided by the practice of States in formulating
the provisions of Articles 15 and 33 of the Draft (Articles 16 and 34 of
the Convention) then a complete analogy has to be applied when one is
determining the consequences of succession in the case of the creation of
a newly independent State by secession from the metropolis and the cre-
ation of a State by the separation of parts of an existing State. In par-
ticular, in the period prior to the United Nations era, cases of “secession”
concerned the “secession of colonies” !%. In other words this is a virtually
uniform practice, the practice in the case of Pakistan and Singapore, the
only cases cited in the commentary to Article 33 of the Draft to illustrate
the practice during the United Nations period, being characterized as the
“clean slate” rule.

Making a distinction between the consequences of succession in the
case of a newly independent State the territory of which immediately
before the date of succession was a dependent territory, and the case of a
new State formed by separation of a part of an existing State, and estab-
lishing different rules for these two cases — “clean slate” in the former
and “automatic continuity” in the latter — the Convention undoubtedly
went beyond the sphere of codification of existing practice and entered
the sphere of progressive development.

The provision on “automatic continuity” could hardly be justified in a
convention on succession even in the event that the new States, following
the logic of the right to consider themselves as parties to the treaties in
their own name after the succession of States, had uniformly accepted the
rights and obligations stemming from the treaties of the predecessor
State.

The very fact that we are dealing with the right of the new State “to
consider itself a party to the treaties in its own name” (emphasis added),
a right that has been operationalized in conformity with the rules of

189 See Commentary to Article 15, Position in respect of the Treaties of the Predecessor
State of the Draft Articles, United Nations Conference on Succession of States in respect
of Treaties, 1977 session and resumed session 1978, Official Records, Vol. U1, Documents
of the Conference, p. 40, para. 2.

190 Jbid., p. 91, para. 12.

188

780 APPLICATION OF GENOCIDE CONVENTION (DISS, OP. KRECA)

treaty law based on the fundamental principle of consent, eliminates,
within the logic of codification of existing practice, the construction on
“automatic continuity” which is, by its meaning, an obligation. What
could be open to debate as we are dealing with a right or authorization is
whether that right or authorization, depending on the nature of the prac-
tice, is an ordinary or categorical authorization (jus cogens). Even the
uniform exercise of a right does not provide grounds for transforming the
right into an obligation. Per analogiam, if on the basis of the authorizing
norm contained in Article 33 of the Convention on the Law of the Sea
(1982) a large majority of States were to proclaim a contiguous zone, that
would not mean that the establishment of the zone would constitute an
obligation of States. The consequences of such a practice would be the
constitution of customary rules on the right of States to proclaim exclu-
sive economic zones or in concreto the customary rule on the right of the
successor State “to consider itself as a party to the predecessor State’s
treaties in its own name”.

It is therefore not difficult to agree with the opinion of the Expert Con-
sultant of the Conference, Sir Francis Vallat, that

“(t]he rule [in Article 2 — Succession of States in Case of Separation
of Parts of a State] was not based either on established practice or on
precedent, it was a matter of the progressive development of inter-
national law rather than of codification” !°1.

It was noted that, in the case of Article 34 of the Convention

“the International Law Commission abandoned the ‘clean slate’
principle and introduced, on the contrary, a rule of continuity. It
was clear that in doing so it had been aware of the fact that it was
not simply reflecting the present state of the law, but was proposing
progressive development. For ‘clean slate’ was part of general inter-
national law and would continue to be so, whatever solution was
adopted in the Convention.” !°2

Multilateral law-making conventions do not represent an exception since:

“Succession to multilateral law-making conventions after separa-
tion or secession is a right, not an obligation. Multilateral law-mak-
ing conventions establish a body of rules of international law. They
do not create subjective rights of individual states. In case of succes-
sion no acquired right of a third party need be protected, by making
it the successor’s responsibility to perform it. No automatic change

191 Summary Records, Committee of the Whole, 48th Meeting, 8 August 1978, p. 105,

para. 10.
192 Ritter, The UN Conference on Succession in Respect of Treaties, Vienna, 31 July-
23 August 1978, pp. 52-55.

189

781 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

of attribution; in other words: no automatic succession, therefore,
takes place.” 193

Finally, it is also worth examining the practice of States following the
adoption on 22 August 1978 of the Convention on Succession in respect
of Treaties, which was open for signature until 28 February 1979.
Article 46 (Signature) of Chapter VIT of the Convention stipulates

“The present Convention shall be open for signature by all States
until 28 February 1979 at the Federal Ministry for Foreign Affairs
of the Republic of Austria, and subsequently, until 31 August 1979,
at the United Nations Headquarters in New York.”

The position of States regarding the Convention could hardiy, even
given a maximum degree of benevolence, be described as satisfactory. In
the almost twenty years since the Convention was opened to ratification
and accession, only 13 States have deposited instruments of ratification,
accession or succession, so that not even the obviously modest require-
ment of 15 instruments of ratification or accession for the Convention to
enter into effect has been fulfilled. This fact — volens nolens — is indica-
tive of the attitude of States towards the Convention, regardless of the
fact that the number of ratifications or accessions cannot, in itself, be
considered conclusive with regard to the acceptance of the rules con-
tained in a Convention which has not come into force. The practice of
new States which have emerged since 1993 clearly shows that automatic
succession is not accepted as a positive rule (Multilateral Treaties Depos-
ited with the Secretary-General, Status as at 31 December 1993).

112. It follows from the above that the rule on automatic succession of
multilateral treaties — lex ferenda, as matters now stand — has not been
accepted in positive international law. However, it would be wrong to
conclude from this that a new State begins life in the international com-
munity as a tabula rasa, a newborn in a legal vacuum deprived of all
treaty rights and obligations. Such a state of affairs would be in contra-
diction with the very idea of an organized, de jure international commu-
nity, an idea which does not recognize or tolerate the existence of any
entity which is not directly or indirectly subject to the rule of law.

Moreover, treaty rights and obligations are subject to the division of
rights and obligations effected in the well-known dictum of the Court in the
case concerning Barcelona Traction, Light and Power Company, Limited:

“[a]n essential distinction should be drawn between the obligations
of a State toward the international community as a whole, and those

193 K. Zemanek, “State Succession after Decolonization”, Recueil des cours de
l'Académie de droit international de La Haye, Vol. 116, 1965, p. 233.

190

782 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

arising vis-à-vis another State . . . By their very nature, the former
are the concern of all States.” 194

(Modern international law does not take the classical view according
to which only custom, as a formal source, may originally constitute a
norm of general international law, whereas a rule created by treaty, per
definitionem, represents a particular norm which may possibly acquire
the status of a norm of general international law fractu temporis by
means of custom. This view played its part when the international
community was primitive and undeveloped and when constructions
like this were required to fill in the vast gaps in the positive law. Today
such a concept is untenable both in theory and from the standpoint of
positive law. ;

Theoretically, if it is rightly considered that the basis of the binding
nature of general international law is the “will of the international
community as a whole”, general custom and comprehensive multilat-
eral treaties are only the instrumentalization of that will. Their mutual
relationship in value terms is determined by the inherent capacity of
both sources to express that will. Any other approach implicitly intro-
duces dualism into the foundation of the binding nature of interna-
tional law for it is obvious that neither general custom nor general
multilateral treaties imply unanimity, the agreement of all States. There-
fore, to recognize custom as having an exclusive role in the generation
of general international law is tantamount to a metaphysical joke
{Lauterpacht speaks of “the mysterious phenomenon of customary
international law which is deemed to be a source of law only on condi-
tion that it is in accordance with law” (“Sovereignty over Submarine
Areas”, 27 British Year Book af International Law 376, p. 394 (1950));
he also raises the question of “why custom is binding, The answer,
beyond which it is in law not possible to go, is that it is the will of the
international community that international law, in its various manifes-
tations, shall be binding” (H. Lauterpacht, /aternational Law, Col-
lected Papers, 1, General Works, 1970, p. 38).

In positive legal terms, the capacity of general multilateral treaties to
generate norms jus cogens superveniens has been established by the
Convention on the Law of Treaties. The commentary on Article 50 of
the Draft (Article 53 of the Convention) says inter alia: “a modifica-
tion of a rule of jus cogens would today most probably be effected
through a general multilateral treaty” — Yearbook of the International
Law Commission, 1966, Vol. II, p. 248, para. 4. If a general multi-
lateral treaty is capable of creating a norm of jus cogens, as the most
perfect part of international law, then à fortiori it is capable of gen-
erating a norm of general international law.)

14 FOL Reports 1970, p. 32.

19]

783 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

General multilateral treaties adopted in the interest of the international
community, being the instrumental form of expression of the will of the
international community as a whole, operate erga omnes independently
of contractual approval. The Genocide Convention is a case in point. As
indicated by the International Court of Justice in its Advisory Opinion
concerning Reservations to the Convention on the Prevention and Punish-
ment of the Crime of Genocide, proceeding from the qualification of
genocide as “a denial of the right of existence of entire human groups”
which “is contrary to moral law and to the spirit and aims of the United
Nations”, “the principles underlying the Convention . . . are recognized
by civilized nations as binding on States, even without any conventional
obligation”,

Hence, the principles underlying the Genocide Convention are part of
the corpus juris cogentis. Any new State is a priori subject to these rules
since they express the universal interest of the international community
as a whole!%,

113. The cited opinion of the Court raises a question of fundamental
importance for these concrete proceedings — the question of the relation-
ship between the principles underlying the Genocide Convention and the
provisions of the Genocide Convention. This question has two dimen-
sions — a quantitative and a qualitative one. The quantitative dimension
of the question has to do with the relationship between underlying prin-
ciples and the provisions of the Convention, i.e., whether those principles
apply to the Convention as a whole. The answer to this question can, in
my opinion, only be negative. The fundamental principles of interna-
tional law underlying the Genocide Convention are manifested only in
the substantive provisions of the Convention, the provisions defining its
object and purpose. The transitional and final provisions of the Conven-
tion, to which should be added the procedural provisions regarding
methods of settling disputes, are not such as to warrant being described
as expressing the spirit and letter of the fundamental principles of inter-
national law. This is corroborated not only by the possibility of express-
ing reservations regarding these provisions but also by the effect of
termination carried out in accordance with Article XIV of the Con-
vention.

In qualitative terms the relationship between the “principles underlying
the Convention” and the substantive provisions of the Convention is rele-

195 1. C.J, Reports 1951, p. 23 (emphasis added).

196 It might be concluded that, having in mind that nature of the principles underlying
the Genocide Convention, the then Secretary-General Hammarsjkôld warned the Congo
authorities during United Nations operations in that country that the principles of the
Convention must be held to govern even a new State like the Congo and to apply to sub-
ordinate political authorities within the Congo State (Annual Report of the Secretary-
General 1960-1961, General Assembly, 16th Sess., Supp. No. 1, p. 11; Waldock, “General
Course on Public International Law”, Recueil des cours de l’Académie de droit interna-
tional de La Haye, Vol. 106, 1962, p. 228).

192

784 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

vant from the standpoint of whether the legal effect of those principles
covers the substantive provisions of the Convention. These provisions of
the Convention are the normative concretization of the “principles under-
lying the Convention”, the transformation of the general — for practical
purposes inoperable — categorical imperative into a series of concrete,
particular categorical imperatives in the form of specific substantive pro-
visions of the Convention.

In other words, the substantive provisions of the Genocide Conven-
tion, as the concretization of those principles, are interpretative in nature
so that they share the cogent nature of the principles underlying the Con-
vention.

If this were not the case, these lofty principles “recognized by civilized
States as binding on States” would remain in the air, as a kind of monu-
ment to good intentions which never came to fruition.

For, if the provisions of the Genocide Convention were not a concre-
tization of the principles underlying the Convention, the international
community would be faced with insurmountable legal obstacles in the
pursuit of its intention to eliminate the crime of genocide. Thus, exempli
causa, non-party States would not be bound by the Convention’s provi-
sions which determine the substance of the crime of genocide or by the
obligation to prevent and punish the crime of genocide.

114. In other words, Bosnia and Herzegovina as a new State is a priori
bound by the substantive provisions of the Genocide Convention even
without any conventional obligation. By formal accession to the Geno-
cide Convention, with respect to the substantive provisions of the Con-
vention, Bosnia and Herzegovina would merely confirm in contractual
form the obligations by which it was bound independently of its will,
obligations which are beyond the autonomous will of States.

The legal effect of accession to the Convention lies, primarily, in a
commitment to those rules of the Convention which do not have a
cogent nature, iLe., rules of a procedural nature such as exempli causa,
the rules contained in Articles VITI, IX, XIV, XV or XVI of the Con-
vention,  —~

115. “Automatic succession” and “notification of succession” are
mutually exclusive. The effect of automatic succession would consist of
the automatic, ipso jure transfer of treaty rights and obligations from the
predecessor State to the successor State. In that case, therefore, the suc-
cession does not occur as a result of the will of the successor but on the
basis of the norm of international law which stipulates the transfer of
treaty rights and obligations as a consequence of the replacement of one
State by another in the responsibility for the international relations of
territory. “Notification of succession” has a rational and legal justifica-
tion only in cases in which the transfer of treaty rights and obligations or
the modalities of that transfer depend on the will of the successor since,
ex definitione, it represents “any notification, however phrased or named,
made by a successor State expressing its consent to be considered as

193

785 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

bound by the treaty” °7. In other words, it is applied in cases when the
successor State is not bound, by norms of objective international law, to
continue to apply the treaties of its predecessor to its territory after the
succession of States but is entitled, according to the relevant norm, to
consider itself as à party to the treaties in its own name.

116. In this connection, the question is whether “notification of suc-
cession” is appropriate, per se, for expressing consent to be bound by
treaty. The legitimacy of this question relies on two facts:

(i) the connection that exists between the rules on succession with
respect to international treaties and the rules of treaty law, and
(ii) the meaning of the instrument of “notification of succession”.

It is natural that the succession of States with respect to treaties has the
closest links with the law of treaties itself and could be regarded as deal-
ing with particular aspects of participation in treaties, the conclusion of
treaties and the application of treaties.

Special Rapporteur Humphrey Waldock described these links as follows:

“the Commission could not do otherwise than examine the topic of
succession with respect to treaties within the general framework of
the law of treaties . . . the principles and rules of the law of treaties
seemed to provide a surer guide to the problems of succession with
respect to treatis than any general theories of succession” '*°.

Or as stated by O’Connell,

“The effect of change of sovereignty on treaties is not a manifesta-
tion of some general principle or rule of State succession, but rather
a matter of treaty law and interpretation.” !%

The determination of “notification of succession” given in Ar-
ticle 2 (g) of the Convention on Succession in respect of Treaties, as well
as the practice of States in the matter, cast serious doubts as to the pos-
sibility of “notification of succession” as an instrument, per se, that acts
as a means of binding by treaty.

The Convention on the Law of Treaties (1969) stipulates in Article 11
(Means of Expressing Consent To Be Bound by a Treaty ):

“The consent of a State to be bound by a treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratifica-

197 Article 2 (gj of the Convention on Succession of States in respect of Treaties
(emphasis added).

158 Yearbook of the International Law Commission, 1968, p. 131, para. 52.

199 D. P. O’Connell, The Law of State Succession, 1956, p. 15.

194

786 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

tion, acceptance, approval or accession, or by any other means if so
agreed.”

The formulation of Article 11 of the Convention on the Law of Trea-
ties does not exclude the possibility of notification of succession being
understood as a means of expressing approval to be bound by a treaty.
The operationalization of this possibility implies, however, the agreement
of the parties for, in the light of treaty law as expressed in Article 11 of
the Convention, “notification of succession” undoubtedly comes under
“any other means” of expressing consent to be bound by a treaty but is
conditioned by the phrase “if so agreed”. From this viewpoint, “notifica-
tion of succession” as a unilateral act of the State, constitutes a basis for
a collateral agreement in simplified form between the new State and the
individual parties to its predecessor's treaties. Thus “notification of suc-
cession” actually represents an abstract, generalized form of the new
State’s consent to be bound by the treaties of the predecessor State — a
form of consent which is, in each particular case, realized in conformity
with the general rule of the law of treaties on expression of consent to be
bound by a treaty contained in Article 11 of the Convention on the Law
of Treaties and prescribed by provisions of the concrete Treaty.

An exception to the general rule according to which consent of the suc-
cessor State to be bound by a treaty has to be expressed ad casum in con-
formity with Article 11 of the Convention on the Law of Treaties could
be envisaged in the event that, outside and independently of the Conven-
tion, there exists a generally accepted rule according to which “notifica-
tion of succession” is considered a specific means of binding new States
by treaties. Grounds for such an interpretation are also provided by
Article 73 of the Convention on the Law of Treaties: “The provisions of
the present Convention shall not prejudge any question that may arise
in regard to a treaty from a succession of States . . .”

There is no real evidence that such a rule exists. The Convention on the
Law of Treaties which is, by its nature, a combination of codification and
progressive development, does not make any mention in its Article 11
(Means of Expressing Consent To Be Bound by a Treaty) of “notification
of succession” as such a means. This is particularly conspicuous in view
of the fact that Article 11 is built on the premise of deformalization of the
means of expressing consent to be bound by a treaty. The reason for such
a state of affairs lies, in my opinion, in the still outstanding basic ques-
tions regarding the succession of States with respect to treaties.

“Notification of succession” can only have two basic meanings:

(a) it can represent a confirmation that the new State is bound by treaty
and, in that case, it has only a declarative effect; and

(b) it can represent an instrument, however phrased or named, express-
ing consent of a successor State to be bound by the treaty.

195

787 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

In the case of fa) above, the basic norm on the succession of States
with respect to treaties is automatic succession — the rights and obliga-
tions stemming from treaties ipse jure, that are transferred from the pre-
decessor State to the successor State by the very act of territorial change.
In this case, “notification of succession” is essentially unnecessary. It
would merely be information that a territorial change had occurred and
that, as a result, the rule on the automatic transfer of rights and obliga-
tions stipulated by treaty had been activated.

In the case under (4) above, “notification of succession” is a means of
expressing consent to be bound by a treaty. Since succession per se is not
and cannot be an independent method of expressing consent to be bound
by a treaty, except under the hypothesis of automatic succession, it fol-
lows that “notification of succession” can only be a descriptive notion, a
collective term for various forms of expression of consent of a new State
to be bound by a treaty.

The practice of States in the area of succession with respect to treaties
is predominantly linked to the gaining of independence of former colo-
nies from the metropolis. It is characterized by diversity and the absence
of clear and precise rules. If any tendency can be said to be prevalent, it -
is that “a great many new States could be classified in a variety of ‘pick
and choose’ categories” 200 which is by its meaning close to the “clean slate”
concept. However, regardless of whether they have accepted the Nyerere
formula and laid down a specified period for the review of treaties, which
period would automatically lapse if not taken up by the new State before
its expiry, or the Zambia formula, which assumed the continued appli-
cation of many pre-independence treaties, but which laid down an
unlimited period of review to determine which had lapsed or which had
in practice been adopted if the new States considered them suited to their
needs, Those new States adopted such treaties by sending appropriate
notes to the depositary. The position on specific treaties was expressed in
the form of “acceptance”, “accession”, and the like#!. There are not
many examples of the acceptance of a treaty by a successor expressed in
the form of an instrument that could be called a “notification of succes-
sion”. “Notification of succession” is rather a synthetic, collective term
denoting various forms of new States being bound by the treaties of the
predecessor State, and was developed primarily in the practice of the
United Nations Secretary-General as the depositary of multilateral
treaties. The term implies the existence of a rule of general international
law on the transfer of rights and obligations stemming from multilateral
treaties to which the predecessor State is a party, to the successor State
which does not correspond to the actual state of affairs since:

20 Kearney, Yearbook of the International Law Commission, 1968, Vol. 1, p. 136.

201 See United Nations Legislative Series, Materials on Succession of States (ST/LEG/

SER.B/14), 1967, pp. 42 (11); 181; 224-229.

196

788 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

“In spite of some evidence to the contrary, emanating mainly from
diplomatic rather than legal sources, it is submitted that the general
principle is that newly established States which do not result from a
political dismemberment and cannot fairly be said to involve politi-
cal continuity with any predecessor, start with a clean slate in the
matter of treaty obligation, save in so far as obligations may be
accepted by them in return for the grant of recognition to them or
for other reasons, and except as regards the purely local or ‘real’
obligations of the State formerly exercising sovereignty over the ter-
ritory of the new State.” 202

The practice of new States following the adoption of the Convention
on Succession in respect of Treaties is heterogeneous but is clearly not
heading in the direction of establishment of “notification of succession”
as a specific means of binding new States by the treaties of the predeces-
sor State.

117. Article XI of the Genocide Convention stipulates:

“The present Convention shall be open until 31 December 1949
for signature on behalf of any Member of the United Nations and of
any non-member State to which an invitation to sign has been
addressed by the General Assembly.

The present Convention shall be ratified, and the instruments of
ratification shall be deposited with the Secretary-General of the
United Nations.

After 1 January 1950 the present Convention may be acceded to
on behalf of any Member of the United Nations and of any non-
member State which has received an invitation as aforesaid.

Instruments of accession shall be deposited with the Secretary-
General of the United Nations.”

It follows unequivocally from the cited Article that ratification and
accession are the relevant means of expressing States’ consent to be
bound by the Genocide Convention. In its notification of succession of
29 December 199, Bosnia and Herzegovina states:

“The Government of the Republic of Bosnia and Herzegovina,
having considered the Convention on the Prevention and Punish-
ment of the Crime of Genocide of 9 December 1948 to which the
former Socialist Federal Republic of Yugoslavia was a party wishes
to succeed to the same and undertakes faithfully to perform and
carry out all the stipulations therein contained with effect from

202 McNair, Law of Treaties, 1961, p. 601.

197

789 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

6 March 1992, the date on which the Republic of Bosnia and Herze-
govina became independent.” (Emphasis added.)

The Secretary-General of the United Nations, acting in his capacity as
depositary, communicated the following:

“On 29 December 1992, the notification of succession by the Gov-
ernment of Bosnia and Herzegovina to the above-mentioned [Geno-
cide] Convention was deposited with the Secretary-General, with
effect from 6 March 1992, the date on which Bosnia and Herze-
govina assumed responsibility for its international relations.” 7°?

On 15 June 1993, the Secretary-General received from the Government
of Yugoslavia the following communication:

“Considering the fact that the replacement of sovereignty on the
part of the territory of the Socialist Federal Republic of Yugoslavia
previously comprising the Republic of Bosnia and Herzegovina was
carried out contrary to the rules of international law, the Govern-
ment of the Federal Republic of Yugoslavia herewith states that it
does not consider the so-called Republic of Bosnia and Herzegovina
a party to the [said Convention] but does consider that the so-called
Republic of Bosnia and Herzegovina is bound by the obligation to
respect the norms on preventing and punishing the crime of genocide
in accordance with general international law irrespective of the Con-
vention on the Prevention and Punishment of the Crime of Geno-
cide.”

118. On the basis of the above general considerations as well as those
relating directly to the “notification of succession” of Bosnia and Herze-
govina, the following relevant conclusions can, in my view, be drawn:

The “notification of succession” of Bosnia and Herzegovina is not fully
in harmony with the practice of States as expressed in the relevant pro-
visions of the Convention on Succession in respect of Treaties. More par-
ticularly, the concept of “notification of succession” was developed in the
practice of States specifically in connection with decolonization.

(The expression itself is rather imprecise. In United Nations practice
such notifications are called — “declarations” (see Introduction to the
Multilateral Treaties Deposited with the Secretary-General, Status as
at 31 December 1991, and cited by the Court in paragraph 6 of the
Order of 8 April 1993, note 4). “Notification” of a function is a rather
loose qualification of the practice of States, in the form of a “note”
without the suffix “of succession” (see United Nations, Legislative
Series, Materials on Succession of States (ST/LEG/SER.B/14), 1967,
pp. 225-228), to declare themselves bound uninterruptedly by multi-

203 Communication from the Secretary-General of the United Nations dated 18 March

1993 (reference C.N.451.1992.Treaties-5 (Depositary Notification)), entitled “Succession
by Bosnia and Herzegovina” (emphasis added).

198

790 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA}

lateral treaties concluded on their behalf by the parent State before the
new State emerged to full sovereignty or to deposit their own instru-
ments of acceptance of such treaties, effective from the date of deposit
of the new instrument. It would therefore be more opportune to speak
of a “declaration of entry into the treaty”. Furthermore, the mentioned
“notes”, as a rule, represented a form of realization of conventional
obligations assumed by “devolution agreements”.)

The Genocide Convention does not envisage “notification of succes-
sion” as a means of expression of consent to be bound by the treaty so
that in the concrete case at hand agreement would be required between
Bosnia and Herzegovina and the individual parties to the Convention on
acceptance of a “notification of succession” as a means of expressing con-
sent to be bound by the Convention?™. Yugoslavia, as a party to the
Convention, submitted its reservation stating that it “does not consider
the so-called Republic of Bosnia and Herzegovina a party [to the said
Convention]” because the “replacement of sovereignty on the part of the
territory of SFRY previously comprising the Republic of Bosnia and
Herzegovina was carried out contrary to the rules of international law”.
Yugoslavia, by this reservation, disputed the status of the successor State
of Bosnia and Herzegovina because the “replacement of one State by
another in the responsibility . . .” constitutes only one, factual aspect of
succession or, more precisely, a territorial change which provokes the
question of succession in a legal sense. Hence the conclusion that follows
is that no appropriate collateral agreement was reached between Bosnia
and Herzegovina and Yugoslavia, so that notification of succession by
Bosnia and Herzegovina does not have, vis-à-vis Yugoslavia, the legal
effect of consent to be bound by the Genocide Convention. This was
pointed out at the 965th meeting of the International Law Commission
by Tabibi: “Succession with respect to treaties did not take place without
an express provision of the treaty or the express consent of the other
party,” 205

119. The Court implicitly takes the view that on the basis of the Day-
ton Agreement the Genocide Convention became applicable as between
Bosnia and Herzegovina and Yugoslavia. Such a conclusion stems from
its pronouncement 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

204 “In the absence of provisions which set specific conditions for succession or which

otherwise restrict succession, the Secretary-General is guided by the participation
clauses of the treaties as well as by the general principles governing the participation
of States” (‘Summary of Practice of the Secretary-General as Depositary of Muiti-
lateral Treaties” (ST/LEG.8), p. 89, para. 297),

205 Yearbook of the International Law Commission, 1968, Vol. I, p. 132, para. 64.

199

791 APPLICATION OF GENOCIDE CONVENTION (10188. GP. KREGA)

Dayton-Paris Agreement, all the conditions are now fulfilled to
found the jurisdiction of the Court ratione personae” (para. 26 of
the Judgment),

In my opinion, such an interpretation is untenable.

Yugoslavia argues that the “Genocide Convention became applicable
between the Parties to this case as from the signature of the Dayton
Agreement of 1995” and that “it was only under the Dayton Agreement
(particularly Annex 6 . . .) that the Parties in contention accepted the
applicability of the Genocide Convention”**, It is a fact that in the
absence of recognition, the contractual nexus between Bosnia and Herze-
govina and Yugoslavia could not be established in the framework of the
Genocide Convention. A mutual recognition of two States is the general
condition for the establishment of the bilateral contractual nexus, since a
contractual relationship between States represents a relationship indwity
personae.

Yugoslavia and Bosnia and Herzegovina recognized each other by
Article X of the General Framework Agreement for Peace in Bosnia and
Herzegovina®?, Article X of the General Framework Agreement stipu-
lates, inter alia, that

“The Federal Republic of Yugoslavia and the Republic of Bosnia
and Herzegovina recognize each other as sovereign independent
States within their international borders.”

In normal circumstances, the mutual recognition per se results in the
establishment of the contractual nexus in the framework of a multilateral
agreement between the countries which recognize each other, or between
the State which extends recognition and the State which is being recog-
nized. For reservations regarding the status of a party to the agreement
of a State which is not recognized, are expressed, as a rule, in order not to
establish a tacit collateral agreement between that State and the recog-
nizing State, an agreement which represents per se a de facto recognition.

The circumstances in this concrete case could not be termed normal. In
the notification addressed to the Secretary-General of the United Nations
on 15 June 1993, Yugoslavia emphasized that “it does not consider the
so-called Bosnia and Herzegovina a party to that [Genocide Conven-
tion]” since, in its opmion,

“the replacement of sovereignty on the part of the territory of the
Socialist Federal Republic of Yugoslavia previously comprising the
Republic of Bosnia and Herzegovina was carried out contrary to the
rules of International Law”.

In other words, Yugoslavia challenges, by the notification referred to, the
legality of the genesis of Bosnia and Herzegovina as a State. It could, of
course, be said that a recognition, as a rule, convalidates the defects in

208 CR 96/6, p. 23.
24 Doc. A/50/790, $/1995/999, 30 November 1995, p. 4.

200

792 APPLICATION OF GENOCIDE CONVENTION (DISS, OP. KRECA)

the genesis of a State. Such a conclusion could be drawn from the very
nature of the recognition of the new State, since “To recognize a political
community as a State is to declare that it fulfils the conditions of state-
hood as required by International Law.”2°* This specific case could be
qualified as an exception from the general rule, for two basic reasons:

Primo, Yugoslavia insisted, even after the signature of the Dayton
Agreement, that Bosnia and Herzegovina was constituted in an illegal
way. A clear and unequivocal proof of that is the content of the third
objection. The fact that Yugoslavia withdrew, during the procedure, its
fourth preliminary objection which concerned the factual non-existence
of Bosnia and Herzegovina in the administrative borders of that former
federal unit, but continued to argue that Bosnia and Herzegovina was
constituted contra legem, leads one to the conclusion that the recognition
of Bosnia and Herzegovina by Yugoslavia in the Dayton Agreement had
only the function of acknowledging

“as a fact . . . the independence of the body claiming to be a State
and . . . declar[ing] the recognizing State’s readiness to accept the
normal consequences of that fact, namely, the usual courtesies of
international intercourse” 2°

while keeping its attitude towards the legality of the constitution of
Bosnia and Herzegovina as an independent State.

Secundo, in its third preliminary objection Yugoslavia claims, inter
alia, that the norm on the “equal rights and self-determination of peoples”
is a peremptory norm of general international law (jus cogens). If that
argument could be proved to be correct, then the recognition, even if
conceived and designed as convalidation, would be without legal effect,
since the norms of jus cogens as the absolute, unconditional imperative,
cannot be derogated by inter se agreements.

Outside the context of recognition, the Dayton Agreement does not
touch the relations between the Federal Republic of Yugoslavia and the
Republic of Bosnia and Herzegovina as parties to the Genocide Conven-
tion. The allegation that “under the Dayton Agreement (particularly
Annex 6...) ... the Parties in contention accepted the applicability of
the Genocide Convention” 210 has no foothold in the text of the Dayton
Agreement.

Annex 6 of the Dayton Agreement, which is invoked as the basis of the
application of the Genocide Convention in this specific case, represents,
in fact, the “Agreement on Human Rights”, whose parties are — the

208 H. Lauterpacht, Recognition in International Law, 1947, p. 6.

20 L. Brierly, The Law of Nations, 1963, p. 138.
210 CR 96/6, p. 24.

201

793 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

Republic of Bosnia and Herzegovina, the Federation of Bosnia and
Herzegovina, and Republika Srpska. The only connection between Yugo-
slavia and Annex 6 consists in the fact that Yugoslavia, together with the
Republic of Croatia and the Republic of Bosnia and Herzegovina, by vir-
tue of Article VII of the General Framework Agreement

“agree to and shall fully comply with the provisions concerning
human rights set forth in Chapter One of the Agreement at Annex 6,
as well as the provisions concerning refugees and displaced persons
set forth in Chapter One of the Agreement at Annex 7”.

Chapter One of the Agreement on Human Rights contains a list of indi-
vidual, mainly classical, personal and political rights and liberties which
the “Parties [the Republic of Bosnia and Herzegovina, the Federation of
Bosnia and Herzegovina and Republika Srpska] shall secure to all per-
sons within their jurisdiction” (Art. I of the Agreement). Article VII of
the General Framework Agreement is the contractual confirmation,
phrased in a general way, of the obligation of the respect of basic human
rights and freedoms enumerated in Article I of the Agreement on Human
Rights, which the parties to the General Framework Agreement are
bound to respect as parties to the instruments which contain them, and in
some cases as cogent rules, independently of their acceptance. Therefore,
the purpose of Article VII of the General Framework Agreement is
rather in the field of political reasoning, the reasoning which starts from
the need to engage politically the subjects outside Bosnia and Herze-
govina in the implementation of the Dayton Agreement, and less as
imposing concrete obligations regarding human rights as contained in
Chapter One of the Agreement on Human Rights.

In other words, in this specific case, the recognition as a general condi-
tion for the establishment of the bilateral contractual nexus is not suffi-
cient to enable me to consider the Genocide Convention applicable in the
relations between Yugoslavia and Bosnia and Herzegovina. It results
from the circumstances of the case that, for that purpose, a qualifactory
condition is also indispensable, and that condition would consist of the
absence of the notification of Yugoslavia addressed to the Secretary-
General of the United Nations on 15 June 1993, which represents, by its
material meaning, a reservation made by Yugoslavia with the effect of
preventing the establishment of the mentioned nexus, and in the absence
of the fourth preliminary objection regarding the legality of the constitu-
tion of Bosnia and Herzegovina as a State. Therefore, the mutual recog-
nition given in the form of Article 7 of the General Framework Agree-
ment may be qualified as the recognition of the creation of Bosnia and
Herzegovina in the factual sense of the word, but with a reservation
regarding the legality of its constitution. With respect to the fulfilment of
this qualificative condition in the relations between Yugoslavia and
Bosnia and Herzegovina, the provision given in fine of Article X of
the Agreement is relevant, and reads “[flurther aspects of their mutual
recognition will be subject to subsequent discussions”.

202

794 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

SEVENTH PRELIMINARY OBJECTION

120. The position of the Court regarding its jurisdiction ratione tem-
poris can be summarized by the following part of paragraph 34 of the
Judgment, in which it finds:

“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 Con-
vention or on the occasion of the signature of the Dayton-Paris Agree-
ment. The Court thus finds that it has jurisdiction in this case to give
effect to the Genocide Convention with regard to the relevant facts.”

Concerning the jurisdiction of the Court ratione temporis, the situation
is, in my opinion, clear — according to the rule of general international
law, expressed in paragraph 3 of Article 24 (Entry into Force) of the
Convention on the Law of Treaties:

“When the consent of a State to be bound by a treaty is estab-
lished on a date after the treaty has come into force, the treaty enters
into force for that State on that date, unless the treaty otherwise pro-
vides.”

Article IX of the Genocide Convention is a procedural provision of the
Convention and, being an integral part of it, shares the Convention’s des-
tiny or, to put it more precisely, the destiny of its contractual provisions.
Consequently, if the Convention does not have a retroactive effect — and
it obviously does not — then its Article IX likewise has no such effect.
So, as the general rule of non-retroactivity stipulates, the Convention is
applied to the events and situations which took place after it had come
into effect in relation to Bosnia and Herzegovina or, in the circumstances
of the present case, when the Convention became applicable between
Bosnia and Herzegovina and Yugoslavia.

The analogy which the Court has drawn between this case and Mav-
rommatis Palestine Concessions (para. 26 of the Judgment) does not
seem convincing. One can rather speak of an analogy between this case
and the Ambatielos case to the effect that:

“To accept this theory would mean giving retroactive effect to
Article 29 of the Treaty of 1926, whereas Article 32 of this Treaty
states that the Treaty, which must mean all the provisions of the Treaty,
shall come into force immediately upon ratification. Such a conclu-
sion might have been rebutted if there had been any special clause or
any special object necessitating retroactive interpretation. There is
no such clause or object in the present case. It is therefore impossible
to hold that any of its provisions must be deemed to have been in
force earlier.” 2"

21 Ambatielos, Preliminary Objections, Judgment, 1.C.J. Reports 1952, p. 40 (emphasis
added).

203

795

APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)

For, as it is clearly stated in the commentary on Article 24 of the Con-
vention on the Law of Treaties:

“when a jurisdictional clause is attached to the substantive clauses of
a treaty as a means of securing their due application, the non-retro-
activity principle may operate to limit ratione temporis the applica-
tion of the jurisdictional clause. Thus in numerous cases under the
European Convention for the Protection of Human Rights and Fun-
damental Freedoms, the European Commission of Human Rights
had held that it is incompetent to entertain complaints regarding
alleged violations of human rights said to have occurred prior to the
entry into force of the Convention with respect to the State in ques-
tion.” 212

+ * &

On the basis of the foregoing, I take the liberty of concluding that, in
my opinion, the relevant conditions for the entertainment of the case by
the Court, relating both to jurisdiction and to admissibility, have not
been met.

(Signed) Milenko KkRE£A.

212 Draft Articles on the Law of Treaties with commentaries, adopted by the ICL at its
Eighteenth Session, UNCLT, First and Second Sessions, Vienna, 26 March-24 May 1968
and 9 April-22 May 1969, Official Records, p. 32, para. 2.

204