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         SEPARATE OPINION OF JUDGE AD HOC KREC
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                              TABLE OF CONTENTS

                                                                          Paragraphs
PART I. JURISDICTIONAL ISSUES                                                  1-78
 I. General Considerations in Respect of the Res Judicata Rule                  1-6
II. Res Judicata as Regards Jurisdictional Decisions                           7-19

III. Application of the Res Judicata Rule to the 1996 Judgment                20-78
      1. Perception of the res judicata rule                                  21-26
      2. Erroneous assessment of the relevant conditions for its appli-
         cation in casu                                                       27-29
      3. Jus standi as an autonomous processual condition                     30-31
         3.1. Legal force of the jus standi rule                              32-33
         3.2. Differentia specifica between jus standi and jurisdiction
              of the Court ratione personae                                   34-36
      4. Assessment of the Respondent’s jus standi by the majority            37-46

      5. The effects of the 2004 Judgment                                     47-60
      6. 1992 Declaration                                                     61-74
      7. The issue of the respondent Party                                    75-78
PART II. SUBSTANTIVE ISSUES                                                  79-153
 I. Genocide Convention as Applicable Law                                    79-105
      1. Genocidal intent as conditio sine qua non of the crime of
         genocide                                                            79-82
      2. Degree of intent                                                       83
      3. Destruction                                                         84-98
         3.1. Scope of destruction                                              90
         3.2. The object of destruction                                      91-98
      4. “As such”                                                          99-100
      5. The meaning of ethnic cleansing under the Convention              101-105
II. Application of the Genocide Convention in Casu                         106-137

      1. General remarks about possible approaches of the Court in
         casu                                                              107-110
      2. Interpretation of the duties of the Contracting Parties on the
         basis of the Genocide Convention                                  111-130
         2.1. The duty to prevent                                          113-119
         2.2. Corresponding duty to act                                    120-125

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              2.2.1. Application of the duty to prevent in casu     123-125

         2.3. The duty not to commit genocide                       126-129
         2.4. The duty to punish                                        130
      3. Responsibility issue                                       131-137
         3.1. The Convention and the issue of responsibility        131-137
III. The Legal Determination of the Srebrenica Massacre             138-153
      1. The components of the genocidal intent                     138-153
         1.1. Level of intent                                       138-139
         1.2. Type of destruction                                       140
         1.3. Targeted group                                            141
         1.4. In whole or in part                                   142-144
         1.5. The inference of intent to destroy                    145-150
         1.6. The true legal meaning of the Judgments of the ICTY
              in the Blagojević and Krstić cases                  151-153

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                      PART I. JURISDICTIONAL ISSUES

      I. General Considerations in Respect of the Res Judicata Rule

   1. The expression res judicata has more than one meaning. It is used to
mean an issue decided by a court of law ; a judgment which cannot be
refuted by ordinary legal vehicles ; and, also, a decision which is immu-
table and irrevocable.

   The broad use of the expression res judicata could be attributed to a
certain confusion about the very quality of a judicial decision and its
effects both subjective and objective. Occasionally and especially as
regards some kinds of judgments, account is not taken of the difference
existing between irrefutability and irrevocability. If, bearing in mind the
absence of ordinary legal vehicles provided by the Statute and the Rules
of Court to a dissatisfied party for overturning the judgment, it could be
said that in general the judgments of the Court are irrefutable. It could
not however be said that they are irrevocable as well, owing not only to
the rule on revision embodied in Article 61 of the Statute, as an extraor-
dinary legal vehicle, but also due to some other judicial vehicles existing
in the law of the Court, such as the principle compétence de la com-
pétence in regard to jurisdictional issues as well as non-preliminary objec-
tions to the jurisdiction of the Court.

  2. Two components may be discerned in the substance of res judicata
as provided in the Statute of the Court :
 (i) procedural, which implies that : “The judgment is final and without
     appeal. In the event of dispute as to the meaning or scope of the
     judgment, the Court shall construe it upon the request of any party”
     (Art. 60) ; and
(ii) substantive, according to which : “The decision of the Court has no
     binding force except between the parties and in respect of that par-
     ticular case.” (Art. 59).
   3. The primary effect of res judicata in the procedural sense is claim
preclusion — meaning that a future lawsuit on the same cause of action
is precluded (non bis in idem), whereas the effect of res judicata in the
substantive sense is mainly related to the legal validity of the Court’s
decision as an individualization of objective law in the concrete matter —
pro veritate accipitur — and, also, to the exclusion of the application of
the principle of stare decisis.
   4. Two components of res judicata — procedural and substantive —
do not necessarily go hand in hand in each particular case. Each decision
of the Court — be it judgment or order — is binding upon the parties,
although not in an identical way, but such characteristic of the decision
of the Court is not necessarily followed by its finality.

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   The relationship between these two components of res judicata is not
static and a priori defined because it reflects the balancing power of the
considerations underlying the procedural and substantive aspects of res
judicata rule, respectively.
   The considerations underlying the substantive aspect of res judicata
essentially protect the authority of the Court as a court of law and the
legitimacy of its decisions. Hence, it is possible to say that the binding
force of the Court’s decisions derives from the very nature of the judicial
function irrespective of the nature and content of a Court’s decision. As
the Court established in the Northern Cameroons case (I.C.J. Reports
1963, p. 38), the effect of res judicata extends also to the judgment of the
Court establishing the impossibility of changing the created legal situa-
tion.
   Underlying res judicata in the procedural sense are, in fact, considera-
tions of legal security and predictability combined with economy of the
judicial process.
   5. The distinction between characteristic of a judicial decision and its
effect derives from contrasting res judicata in its abstract normative
meaning and its application within the body of law regulating the judicial
activity of the Court, i.e. its legal meaning in casu.

   Although it is a rule of fundamental importance, forming part of the
legal system of all civilized nations, res judicata is certainly not a fetish
of, or seen as a deus ex machina by, courts of law, including the Inter-
national Court of Justice.
   The res judicata rule operates within the law that the Court applies in
parallel with other rules having an objective nature. In other words, the
res judicata rule, just like other fundamental rules governing judicial
activity of the Court, is only a part, however important it may be, of the
normative milieu in which the Court operates and which, as a whole,
determines the effect of a Court’s decision. A possible effect that the
other rules of an objective nature have upon res judicata might be sum-
marized as follows : “Finality itself . . . is rather a plastic term that need
not prohibit re-examination.” 1 It seems clear that revision in accordance
with the conditions specified in Article 61 of the Statute “constitutes
direct exception to the principle res judicata, affecting the validity of a
final judgment” 2. It is equally true that the operation of the principle of
compétence de la compétence and non-preliminary objections to the
affirmed jurisdiction of the Court may result in a reversal of one sort of
Court judgment, i.e., judgments on preliminary objections.

  1 M. Reisman, Nullity and Revision, 1971, p. 341.
  2 B. Cheng, General Principles of Law as Applied by International Courts and Tribu-
nals, 1953, p. 372.

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   6. In that regard, none of the legal vehicles designed to challenge or
capable of use to challenge a matter already decided derogates the exist-
ence of the res judicata rule as such, for they are based on the authority
of the law which the Court applies in its totality and are made opera-
tional in the form of a binding decision by which the previous decision of
the Court is repudiated — judicum posterior derogat priori. As the effects
of res judicata attach only to decisions brought lege artis, in accordance
with the rules, procedural and substantive, of the law applied by the
Court, it could be said that the exceptions to the finality of a Court judg-
ment constitute a part of the substance of res judicata.

  Consequently, finality of the Court’s judgments within the law applied
by the Court may be relative or absolute. Only for the latter can it be said
that finality is tantamount to res judicata in terms of irrevocability.

   The judgment (sententia) and res judicata in the sense of a final and
irrevocable decision of the Court obviously are not identical notions. The
judgment as such is res judicans while res judicata est causa sinae finem
controversiae accepit.
   As a judicial act, every judgment of a court of law has a potential of res
judicata in terms of irrevocability which may be materialized or not,
depending on the outcome of procedures and weapons designed to chal-
lenge the decision of the court. So, the intrinsic quality of res judicata is,
in fact, the end point in the development of the authority which is inher-
ent in every judgment, the point in which jugement passe en force de la
chose jugée, judgment becomes enforceable.

            II. Res Judicata as Regards Jurisdictional Decisions

   7. The full effect of the res judicata rule is in principle attached to “a
final decision of an international tribunal” (Permanent Court of Arbitra-
tion (Trail Smelter case), Reports of International Arbitral Awards
(RIAA), Vol. III, pp. 1950-1951). In his separate opinion in the Fisheries
Jurisdiction case, Judge Waldock stated, “[u]nder Article 60 of the Stat-
ute the Judgment is ‘final and without appeal’. It thus constitutes a final
disposal of the case brought before the Court by the Application of
14 April 1972” (I.C.J. Reports 1974, p. 125, para. 46) 3.

  However, it does not follow a contrario that the Court’s judgments
on preliminary objections are excluded from the scope of Articles 59

  3 A. V. Freeman, International Responsibility of States for Denial of Justice, 1938,

p. 975 ; B. Cheng, op. cit., 1953, p. 337 ; Schwarzenberger, International Law, I, 1949,
pp. 454-455.

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and 60 of the Statute of the Court. Such an interpretation would
obviously run counter to the general determination made in these
Articles.
   8. It appears that the effects of judgments on preliminary objections,
or at least some types of judgment on preliminary objections, with
respect to both their binding force and finality, are of a specific character
distinguishable to some extent from the effects of judgments on the mer-
its of the case.
   The meaning of the characterization “final” in regard to a judgment on
a preliminary objection lies solely in the fact that, after it is pronounced,
all the parties are precluded from raising any preliminary objections
whatsoever leading to revival or restitution of the preliminary objection
proceeding, as provided for in Article 79 of the Rules of Court.

  But a preliminary objection as such is not the only legal vehicle in the
body of law of the Court designed to challenge a decision of the Court.
Therefore, it is difficult to say that the judgment on the preliminary
objections raised by a party to a dispute before the Court puts a final end
to the issue of jurisdiction, so that the issue of jurisdiction can never be
raised. In the jurisprudence of the Court, and on the basis of Article 79,
paragraph 1, of the Rules, the notion of non-preliminary objection to the
jurisdiction of the Court has developed, which proves, by itself, that the
notion of objection to jurisdiction is broader than the notion of prelimi-
nary objection. The fundamental principle compétence de la compétence
may also give rise to reconsideration of the jurisdictional decision taken.

   As long as it is the functus officio in the case, the Court, as a court of
law, has the inherent power to re-open and reconsider any issue of law
and fact decided. That power would be devoid of substance if not accom-
panied by the power of the Court to reverse its earlier jurisdictional deci-
sion under special circumstances.

   9. The uncritical ascribing of immutability to every judgment is fetish-
ist and may find a model only in some long-abandoned decisions under
Langobardic law 4. Since the Roman Law (in the Roman Law the char-
acter of res judicata could be given only to final decisions in meritum 5),
the solution has been adopted that the authority of res judicata belongs,
as a rule, only to decision on the merits of a case. For instance, in French
law, decisions on incidental questions may not acquire the autorité de la
chose jugée, unless that is indispensable for the interpretation of the dis-

   4 Capitula 370 Edictum Langobardorum stipulated that an adjudicated case semper in

eadem deliberatione debeant permanere, although there existed the possibility of its rejec-
tion by a higher instance — Pugliese, Giudicato civile, Enciclopedia di diritto XVI, 1969,
p. 158.
   5 Pugliese, op. cit., p. 752 ; Kaser, Das römische Zivilprozessrecht, MCMLXVI, p. 504.

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positifs of the decision in meritum or they are its “soutien nécessaire” 6.
The Italian judiciary also tends to perceive res judicata to cover the solu-
tion of the dispute which the parties submitted to the court 7. Para-
graph 322 of the German Zivilprozessrechnung (Materielle Rechtskraft)
states that only those decisions which on the demand (Anspruch) which
is stipulated in the accusation or counter-accusation may be effective.

   In English law as well, res judicata indicates the final judicial decision
adopted by the judicial tribunal competent for the causa, or the matter in
litigation 8. Also, the existence of the competent jurisdiction is considered
a condition of validity of every res judicata 9.
   Therefore, the view that the application of res judicata is objectively
limited to the issues decided by the final judicial decision is dominant in
the law of civilized nations.
   10. In that regard three types of judgments on preliminary objections
may be distinguished :
— judgments by which a preliminary objection, irrespective of its nature,
  is accepted and the dispute ipso facto ended ;
— judgments by which the objection is rejected and the Court is declared
  competent to entertain the merits of the case ; and
— judgments by which a preliminary objection raised is determined to
  be an objection which does not possess an exclusively preliminary
  character.
   The effects of res judicata such as those characterizing a judgment on
the merits of a case are possessed only by those judgments on preliminary
objections by which an objection is accepted. In contrast to the other two
remaining jurisdictional decisions, which are both constituent parts of the
pending case, this kind of jurisdictional decision puts an end to a case,
thus assuming the full effects of the res judicata rule attaching to a final
judgment in the case. There are certain differences as regards res judicata
effects between the two remaining kinds of judgments on preliminary
objections, on the one hand, and judgments on the merits, on the other.

   11. The difference in finality between jurisdictional decisions, on the
one hand, and decisions on the merits, on the other, is, in principle, quan-
titative rather than qualitative in nature. The finality of jurisdictional

  6 Perrot, Chose jugée, Répertoire de procédure civile et commerciale, 1955, 1, Nos. 8,

45, 78-87 ; Vincent, Procédure civile, 1978, p. 98, No. 76.
  7 Pugliese, op. cit., p. 834.
  8 Bower, Turner and Handley, The Doctrine of Res Judicata, 1969, II, p. 1 ; Walker and

Walker, The English Legal System, 1885, Vol. 6, p. 589.
  9 Bower, Turner and Handley, op. cit., p. 92.

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decisions is more relative owing to a larger number of legal weapons by
which they can be challenged. It is reflected in the fact that a jurisdic-
tional decision may be challenged not only through revision proceeding
under Article 61 of the Statute but also in the further course of the pro-
ceedings and by a non-preliminary objection, i.e., by an objection which
is raised to the Court’s jurisdiction 10 after the preliminary objection pro-
cedure has been completed by the delivery of the judgment.
   In the practice of international courts, in particular that of the Inter-
national Court of Justice, this difference assumes qualitative proportions.
Reversal of judgments on the merits, as opposed to jurisdictional deci-
sions, is unknown in the jurisprudence of the International Court of Jus-
tice, unlike that of arbitration courts 11.

  12. The question as to whether the tribunal is irrevocably bound by its
preliminary objection judgment was raised for the first time in the
Tiedemann case (1926) before the Polish-German Mixed Arbitral Tribu-
nal.
  Sedes materiae of the matter, the Tribunal explained succinctly and
convincingly :
     “the Tribunal considers that, in the interests of legal security, it is
     important that a judgment, once rendered, should in principle be
     held to be final.
        However, the question takes on a special complexion when the
     preliminary judgment rendered is a judgment upholding the Tribu-
     nal’s jurisdiction and the latter finds subsequently, but prior to the
     judgment on the merits, that in fact it lacks jurisdiction. In such a
     case, if it were obliged to regard itself as being bound by its first deci-
     sion, it would be required to rule on a matter which it nevertheless
     acknowledges to stand outside its jurisdiction. And when — as in the
     instant case — it has in the meantime ruled that it has no jurisdiction
     in cases of the same nature, it would totally contradict itself by nev-
     ertheless ruling on the merits, and it would expose itself to the risk
     that the respondent State might take advantage of the Tribunal’s
     own acknowledgment of its lack of jurisdiction, in order to refuse to
     execute its judgment . . .
        In other words, in order to remain faithful to the res judicata prin-
     ciple, it would have to commit a manifest abuse of authority.” 12

  The principle that a court of law hearing a case which has proceeded
beyond a judgment on preliminary objections is not irrevocably bound

  10 The word “jurisdiction” is used in its generic sense comprising both general, i.e.,

locus standi in judicio, and special jurisdiction.
  11 See J. L. Simpson and M. Fox, International Arbitration — Law and Practice, 1959,

pp. 250 et seq.
  12 Von Tiedemann v. Polish State, Rec. TAM, t. VI, pp. 997-1003 ; see also CR 2006/44,

Varady, translation.

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by that judgment has also been confirmed by the jurisprudence of the
Court.
   13. In the Nottebohm case (Preliminary Objections) the Court rejected
by its Judgment of 18 November 1953 Guatemala’s preliminary objection
to its jurisdiction and resumed proceedings on the Merits (I.C.J. Reports
1953, p. 124). Guatemala, however, raised a number of objections to
admissibility in its Counter-Memorial, in its Reply and in the course of
the oral proceedings on the merits but treated them as subsidiary to the
subject of the dispute. In its Judgment of 6 April 1955, the Court
accepted one of the objections, which related to the admissibility of
Liechtenstein’s claim given that at the time of naturalization no “genuine
link” had existed between Nottebohm and Liechtenstein (I.C.J. Reports
1955, pp. 4-65).
   The Nottebohm case can be taken as an example of reversal of the pre-
liminary objection judgment upon a non-preliminary objection raised by
the Respondent.
   14. On the other hand, the South West Africa cases (Second Phase)
illustrate the pattern of reversal of the judgment on preliminary objec-
tions by action of the Court proprio motu.
   In the preliminary objections phase (I.C.J. Reports 1962, p. 319), the
Court rejected four South African objections, amongst others the objec-
tion concerning the standing (locus standi) of the Applicant as well as its
interests. South Africa pointed out, inter alia, that :

        “Secondly, neither the Government of Ethiopia nor the Govern-
      ment of Liberia is ‘another Member of the League of Nations’, as
      required for locus standi by Article 7 of the Mandate for South West
      Africa ; Thirdly, . . . more particularly in that no material interests of
      the Governments of Ethiopia and/or Liberia . . . are involved therein
      or affected thereby” (ibid., p. 327).

In the merits phase the Court returned to the determination made in its
1962 Judgment and found that, in fact, the Applicants did not have
standing in the proceedings (I.C.J. Reports 1966, pp. 36-38). Namely, in
its Judgment on Preliminary Objections of 21 December 1962, the Court
established inter alia that :
         “For the manifest scope and purport of the provisions of this Arti-
      cle indicate that the Members of the League were understood to have
      a legal right or interest in the observance by the Mandatory of its
      obligations both toward the inhabitants of the Mandated Territory,
      and toward the League of Nations and its Members”,

and that :
        “Protection of the material interests of the Members or their
      nationals is of course included within its compass, but the well-being

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      and development of the inhabitants of the Mandated territory are not
      less important” (South West-Africa, Preliminary Objections, Judg-
      ment, I.C.J. Reports 1962, pp. 343-344 ; emphasis added).
In essence, the Court explained the reversal of its previous finding by
describing the nature of the decision on preliminary objection. The Court
stated inter alia :
        “As regards the issue of preclusion, the Court finds it unnecessary
      to pronounce on various issues which have been raised in this con-
      nection, such as whether a decision on preliminary objection consti-
      tutes a res judicata in the proper sense of that term, whether it ranks
      as a ‘decision’ for the purposes of Article 59 of the Court’s Statute,
      or as ‘final’ within the meaning of Article 60. The essential point is
      that a decision on a preliminary objection can never be preclusive of
      a matter appertaining to the merits, whether or not it has in fact been
      dealt with in connexion with the preliminary objection.” (I.C.J.
      Reports 1966, pp. 36-37, para. 59 ; emphasis added.)
However, reasoning further about the preclusive effect of the 1962 Judg-
ment, the Court characterized — albeit indirectly — jurisdictional deci-
sions, finding that :
         “Since decisions of an interlocutory character cannot pre-judge
      questions of merits, there can be no contradiction between a decision
      allowing that the Applicants had the capacity to invoke the jurisdic-
      tional clause . . . and a decision that the Applicants have not estab-
      lished the legal basis of their claim on the merits.” (I.C.J. Reports
      1966, p. 38, para. 61 ; emphasis added.)
   In the merits phase the Court returned to the determination made in its
1962 Judgment and found that, in fact, the Applicants did not have
standing in the proceedings (I.C.J. Reports 1966, pp. 36-38).
   15. The legal basis for reconsideration of a preliminary objection judg-
ment and, possibly, a reversal of an affirmative finding on jurisdiction lies
in the inherent power of the Court to determine its own jurisdiction (the
principle of compétence de la compétence), in both its narrow and broad
meanings.
   In the narrow sense, as expressed in Article 36, paragraph 6 of the Stat-
ute, the Court takes jurisdictional decisions in cases of disputes between
the parties as regards its jurisdiction. Jurisdictional decisions of the Court
under Article 36, paragraph 6, may be of either of two types : judgments
on preliminary objection raised in accordance with Article 79 of the
Rules of Court ; and decisions taken upon non-preliminary objection.
Characteristic of decisions on non-preliminary objections is that they are
taken in phases of the proceedings other than the preliminary objection
stage, generally in the phase which should be on the merits and which is
determined in the practice of the Court to be a Judgment on jurisdiction
(Nottebohm case) or simply a Judgment in the Second Phase (South West
Africa cases). The real meaning of the last expression is in fact the second

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jurisdictional phase, given that the judgment upon preliminary objection
was adopted previously.
   However, as commonly observed, the Court is bound to remain atten-
tive to the issue of jurisdiction independently from the actions of the
parties in the litigation. The Court achieves this by application of the
principle compétence de la compétence in its wider form (Nottebohm case,
I.C.J. Reports 1953, p. 120) as the basis for proprio motu action of the
Court.
   “Remain attentive” as such, without proper action of the Court, has
no practical effect on the fundamental question — whether the Court has
jurisdiction in casu. The Court, bearing in mind ex officio its competence
from the moment the proceedings are begun until their end, undertakes
various decisions in that regard. Specifically, the Court’s compétence de
la compétence :
       “is not limited to verifying in each case whether the Court can deal
       with the merits . . . By extending the scope of the power in issue
       [compétence de la compétence] to all matters within the incidental
       jurisdiction of the Court, the Court has established this power as the
       most pre-preliminary function the Court undertakes.” 13
   The very seisin of the Court as a first step of a procedural nature
implies the operation of the principle compétence de la compétence by
proprio motu action of the Court. The need to resort to the principle com-
pétence de la compétence results directly from the fact that the seisin of
the Court is not the automatic consequence of the proper actions of the
parties to a dispute, and the seisin of the Court is not a pure fact but a
judicial act linked to the jurisdiction of the Court (see Nottebohm, Pre-
liminary Objections, Judgment, I.C.J. Reports 1953, p. 122 ; Maritime
Delimitation and Territorial Questions between Qatar and Bahrain
(Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 1995, p. 23, para. 43).
   Without the operation of the principle compétence de la compétence as
a principle of general international law, it would be legally impossible to
establish the competence of the Court to indicate provisional measures,
for the objections to the Court’s jurisdiction, pursuant to Article 79 of
the Rules, may be submitted by the Respondent within the time-limit
fixed for the delivery of the Counter-Memorial and by a party other than
the Respondent within the time-limit fixed for the delivery of the first
pleading. The operation of the principle in this case results in the judicial
presumption on proper jurisdiction of the Court in the form of “prima
facie jurisdiction” (Legality of Use of Force, Preliminary Objections,
Judgment, I.C.J. Reports 2004 ; separate opinion of Judge Krecua,
para. 12 ; emphasis added).
   16. The special position of a judgment on preliminary objection exists

  13   Shihata, op. cit., pp. 41-42 ; emphasis added.

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in respect of both aspects of the res judicata rule — its binding force and
finality.
   A perception of distinct relativity of a jurisdictional decision of the
Court pervades the body of law regulating the Court’s activity. The rules
regarding preliminary objections are grouped in Subsection 2 of Sec-
tion D of the Rules of Court, entitled “Incidental Proceedings”. Such
placement of the rules on preliminary objections suggests, as the Court
stated in the South West Africa cases (Second Phase) (I.C.J. Reports
1966, p. 38, para. 61), that judgment on a preliminary objection is “of an
interlocutory character”, which implies a provisional, rather than final,
character. Furthermore, Article 79, paragraph 1, of the Rules of Court,
providing that “[a]ny objection . . . to the jurisdiction of the Court or to
the admissibility . . . or other objection the decision upon which is
requested before any further proceedings on the merits” (emphasis added),
per se expresses the relative finality of a judgment on preliminary objec-
tions. Preliminary objections as such do not, however, exhaust objections
to the jurisdiction of the Court. As early as the 1980s, the jurisprudence
of the Court, supported by State practice, developed to the effect that the
formal preliminary objection procedure is not exhaustive of the matter 14,
as well as that non-preliminary objections to jurisdiction are also capable
of reversing a judgment on preliminary objections as demonstrated in the
Nottebohm case. Non-preliminary objections to the jurisdiction of the
Court give rise to application of the principle of compétence de la com-
pétence understood, as I have noted before (Legality of Use of Force
(Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment,
I.C.J. Reports 2004, paras. 43-50), in the narrow sense.

   Finally, the principle of compétence de la compétence understood in a
general sense can be seen in the Resolution Concerning the Internal Judi-
cial Practice of the Court in its provision stating that “the Court may pro-
ceed to entertain the merits of the case or, if that stage has already been
reached, on the global question of whether, finally, the Court is competent
or the claim admissible” (Art. 8 (ii) (b) ; emphasis added). It seems clear
that the “global question” is “one which would normally arise only after
all the previous questions and the merits have been pleaded (that is to
say, the substance of any particular phase [has] thus been decided”) 15.

  17. With regard to the binding force of a judgment on preliminary
objections, it seems clear that it does not create legal obligations stricto

  14 See Shabtai Rosenne, « The Reconceptualization of Objections in the ICJ » , Communi-

cazioni e studi, volume quattordicesimo, 1975, pp. 735-761.
  15 Shabtai Rosenne, Procedure in the International Court. A Commentary on the 1978

Rules of the International Court of Justice, 1983, p. 232 ; emphasis added.

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sensu which parties in the proceedings are required to comply with. The
party that raised a preliminary objection rejected by the Court does not
suffer any legal consequences if, for instance, it decides not to participate
in the proceedings for which the Court declared itself competent. An
affirmative judgment in the preliminary objection procedure creates for
that party a processual burden rather than a legal duty stricto sensu.
Moreover, the Applicant has no legal obligation to proceed to plead the
claim either. While an affirmative jurisdictional decision creates a pro-
cessual burden for the Respondent, vis-à-vis the Applicant it constitutes a
pure processual entitlement which the Applicant uses with absolute dis-
cretion (discretio legalis) without suffering any sanctions in proceedings
of failure to comply with the letter of affirmative jurisdictional decisions.

   In fact, an affirmative judgment in the preliminary objections phase
creates a duty for the Court only to proceed to the merits phase, but judi-
cial action by the Court in that regard is dependent upon proper actions
by the parties to a case.
   In contrast to a jurisdictional judgment, a judgment on the merits of a
case possesses binding effect in terms of creating legal duties for the
parties, so that “neither party can by unilateral means free itself from its
obligation under international law to carry out the judgment in good
faith” 16.
   18. The more relative character of jurisdictional decisions of the Court
as compared with the finality of a judgment on the merits of the case is
justified on a number of grounds.
   Jurisdictional issues are not, as a rule, core issues of cases before the
Court, nor are they the raison d’être of recourse to the Court by the
parties to a dispute. Cases, such as the Appeal Relating to the Jurisdiction
of the ICAO Council (I.C.J. Reports 1972), in which the Court acts as a
court of appeal, are the only exceptions.

   The parties to a dispute turn to the Court to protect a subjective right
or interest in the sense of substantive law, not because of the issue of
jurisdiction as such. An affirmative judgment on jurisdictional issues
establishes only the necessary prerequisite for resolving the main issue
and it concerns substantive law in terms of conferring or imposing upon
the parties a legal right or obligation of a positive or negative nature. In
this sense, a judgment on jurisdictional issues is of

      “a purely declaratory nature and it can never create a right i.e.,
      bestow on the Court itself a jurisdiction which is not supported by
      applicable rules of law either general or particular” (Certain German
      Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925,

   16 Société Commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78,

p. 176.

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                                                          uA)
      P.C.I.J., Series A, No. 6, dissenting opinion of Judge Rostworowski,
      p. 32).

In other words, a judgment on jurisdictional issues is adjective rather
than substantive in its nature and, consequently, in its effects as well.
It does not create a new legal situation in terms of substantive law nor
gives an order to perform an act as it does not state how the law
disputed between the parties is to be applied. (For classification of inter-
national judgments, see Encyclopedia of Public International Law, III,
1997, pp. 33-34.)

   The reversal by a court of law acting within its judicial prerogatives of
the jurisdictional judgment in a pending case does not substantially, if at
all, affect stability and predictability as the rationale of finality of the
judgment, as advocated by the majority (Judgment, para. 116). This is
because the subject matter here is not substantive rights and obligations
of the parties. As an affirmative jurisdictional decision merely confers
entitlement to have a claim entertained and decided by the court, it is
hard to say that its reversal may result in disturbing jural relations under
substantive law. The only disturbance that can be spoken of in case of a
reversal of an affirmative jurisdictional decision is the disturbance in the
processual relationship established by the jurisdictional decision, distur-
bance which is a matter of the subjective expectations of the parties to a
dispute rather than a matter of public policy underlying the finality of the
Court’s decision.

   On the contrary, if, after adopting a jurisdictional decision and before
handing down its judgment on the merits, the Court found that its deci-
sion was erroneous for any reason, it would commit a manifest abuse of
its power if it were to abide by the res judicata rule. Thus, rather than
strengthening the res judicata rule, insistence on the finality of jurisdic-
tional decisions in all circumstances would be to its detriment, paralyz-
ing, and even nullifying, the activity of the Court as a court of law and
justice, for, besides the intrinsic, constituent elements of the res judicata
rule, there exists the fundamental extrinsic condition, the requisite valid-
ity of the Court’s decision in terms of substantive and procedural law.

  Finally, the more relative character of jurisdictional decisions, as
regards finality, results or may result from the operation of the principle
of compétence de la compétence. Specifically, the principle of compétence
de la compétence operates exclusively in respect of jurisdictional issues.

   19. In practical terms, the relativity of jurisdictional decisions, espe-
cially judgments on preliminary objections as a formal type of jurisdic-

431

471       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                          uA)
tional decision might result from balancing two considerations which
differ by nature :
(i) special circumstances forming an objective element deriving from
    legality which dictate reversal of the jurisdictional decision ; and

(ii) a subjective element, which implies the readiness of a court of law to
     address the matter.
   As regards this element, while somewhat pathetic, the warning is essen-
tially correct that the “future of international adjudication, if not global
peace, may paradoxically depend on the capacity of our supreme judicial
organ to say mea culpa” 17.

      III. Application of the Res Judicata Rule to the 1996 Judgment
  20. The position taken by the majority on the application of res judi-
cata to the 1996 Judgment of the Court suffers from two basic weak-
nesses :
(a) a narrow and fetishist perception of the res judicata rule ;
(b) an erroneous assessment of the relevant conditions for its applica-
    tion in casu.
  As a consequence, it can be said that the perception of the res judicata
rule as well as its application to the 1996 Judgment is completely misguided.

1. Perception of the res judicata rule
  21. The dual, organically linked, structure of the res judicata rule as
designed in Articles 59 and 60 of the Statute has been reduced by the
majority to only one element — its binding force, although the crucial
question in the case at hand is, in fact, the finality of the 1996 Judgment.
In that regard, it is said that the “Statute . . . declares, in Article 60, the
res judicata principle without exception” (Judgment, para. 119).

  The essence of the perception can be expressed as follows :
        “Article 59 of the Statute, notwithstanding its negative wording,
      has as its core the positive statement that the parties are bound by the
      decision of the Court in respect of the particular case. Article 60 of
      the Statute provides that the judgment is final and without appeal ;
      Article 61 places close limits of time and substance on the ability of
      the parties to seek the revision of the judgment.” (Judgment,
      para. 115 ; emphasis added.)

  17 W. M. Reisman, “Revision of West South Africa Cases — An Analysis of the

Grounds of Nullity in the Decision of 18 July 1966 and Methods of Revision”, The Vir-
ginia Journal of International Law, 1966, Vol. 7, No. 1, p. 4.

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                                                           uA)
This reasoning seems to confuse the characteristics and effects of the res
judicata rule.
   The binding force of the Court’s decision most certainly constitutes its
substantive aspect. But, such a characteristic of the decision of the Court
does not necessarily imply its finality, which is a matter of the procedural
effects of the Court’s decision.
   In fact, each decision of the Court, being a proper expression of the
judicial power, possesses binding force. In the formula auctoritas res judi-
cata or l’autorité de la chose jugée, auctoritas does not per se mean final-
ity, but rather the specific weight or credit of a judicial decision serving as
a basis for its finality. Finality is never an attribute of the auctoritas itself.
It may be the attribute of the auctoritas of the judgment after exhausting
legal avenues, either regular or extraordinary, by which the judgment can
be challenged.

   22. According to the majority view, the 1996 Judgment is considered
final, for
      “[t]he Statute provides for only one procedure in such an event : the
      procedure under Article 61, which offers the possibility for the revi-
      sion of judgments . . .” (Judgment, para. 120),
and, furthermore,
         “Subject only to this possibility of revision, the applicable princi-
      ple is res judicata pro veritate habetur, that is to say that the findings
      of a judgment are, for the purposes of the case and between the
      parties, to be taken as correct, and may not be reopened on the basis
      of claims that doubt has been thrown on them by subsequent events.”
      (Judgment, para. 120 ; emphasis added.)

   Such a perception of the finality of a judgment seems too narrow,
because it obviously does not take into account all legal vehicles avail-
able, either to the parties or to the Court itself, for the purpose of recon-
sideration of the issue of jurisdiction. The law of the Court knows, in
addition to revision under Article 61 of the Statute, two legal vehicles
which are relevant in that regard. As stated above, these are the principle
of compétence de la compétence in terms of both Article 36, paragraph 5,
of the Statute and the rule of general international law (Nottebohm, Pre-
liminary Objection, Judgment, I.C.J. Reports 1953, pp. 119-120) and
non-preliminary objections to the jurisdiction of the Court.
   23. The principle compétence de la compétence is “indispensably nec-
essary to the discharge of any . . . duties” 18 of any judicial authority.
Although, in contrast to jurisdictional objections raised by the parties, it

  18 United States Commissioner Gore in the Betsey case (1797), J. B. Moore (ed.), Inter-

national Adjudications, Ancient and Modern History and Documents, Modern Series,
Vol. IV, p. 183.

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                                                          uA)
is not specifically designed to challenge the jurisdiction of the Court, its
operation, either proprio motu or upon an objection by a party, always
affects, positively or negatively, the jurisdiction of the Court.

   The power of the Court to determine whether it has jurisdiction, ema-
nating from the principle of compétence de la compétence, is an inherent
right and duty of the Court and it knows no bounds (Electricity Com-
pany of Sofia and Bulgaria, Judgment, 1939, P.C.I.J., Series A/B, No. 77,
dissenting opinion of Judge Urrutia, pp. 102-103). The Court exercises its
inherent power from beginning to end of the proceedings with a view to
establishing whether it possesses jurisdiction or not in the particular case.
In reality, the Court exercises its inherent power in two ways :
(a) by taking a quiet, informal decision as to the existence of the proc-
    essual requirements for jurisdiction through prima facie assessment,
    this being substantively a judicial presumption of jurisdiction ; and

(b) by adopting a formal decision on jurisdiction.
   In that sense, the Court’s power to determine whether it has jurisdic-
tion in a given case seems absolute, considering that the Court, even if it
declares that it has no jurisdiction in casu, exercises that inherent power.

   24. Accordingly, the exercise of that power cannot be limited ratione
temporis as long as the Court is functus officio in the case. Inherent in the
power of the Court to determine whether it has jurisdiction ad casum is
the proper right to reopen and reconsider the issue of jurisdiction, either
proprio motu or upon jurisdictional objection by a party to a dispute, as
clearly demonstrated in the Nottebohm case (para. 13 above) and the
South West Africa cases (para. 14 above).

   This, of course, does not mean, as the Judgment correctly stated, that
“jurisdictional decisions remain reviewable indefinitely . . .” (Judgment,
para. 118).
   There exist clear limits, both temporal and substantive, within which
jurisdictional decisions are reviewable. As regards temporal limits, the
jurisdictional decision is reviewable until the Court is functus officio in a
given case, whereas substantive limits concern the nature of the circum-
stances which justify reconsideration. They must be of a special nature
affecting legality as the primary value and ultimate purpose of judicial
decisions of any court of law, for

         “The Commission is a tribunal sitting continuously with all the
      attributes and functions of a continuing tribunal until its work shall
      have been closed. Where the Commission has misinterpreted the evi-
      dence, or made a mistake in calculation, or where its decision does
      not follow its fact findings, or where in any other respect the decision

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474       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                          uA)
      does not comport with the record as made, or where the decision
      involves a material error of law, the Commission not only has
      power, but is under the duty, upon a proper showing, to re-open and
      correct a decision to accord with the facts and the applicable legal
      rules.” (Mixed Claims Commission — United States of America and
      Germany, AJIL, 1940, Vol. 34, No. 1, p. 154.)

   Such inherent power and, even, a duty emanate from the very nature
of the judicial function, for, as Commissioner Owen Roberts stated, “No
tribunal worthy of its name or of any respect may allow its decision to
stand if such allegations are well-founded” (ibid., p. 164).

  25. The unjustifiably narrow interpretation of the res judicata rule
inevitably leads to a striking conclusion that
         “Subject only to [the] possibility of revision, the applicable prin-
      ciple is res judicata pro veritate habetur, that is to say that the find-
      ings of a judgment are, for the purposes of the case and between the
      parties, to be taken as correct, and may not be reopened on the basis
      of claims that doubt has been thrown on them by subsequent events.”
      (Judgment, para. 120 ; emphasis added.)

  Considering the Court’s findings to be immutable even in the face of
subsequent events throwing doubt on their veracity, the majority view
neglects the aspect of legality in the substance of the res judicata rule.

   As subsequent events can hardly be considered as “a new fact” under
Article 61 of the Statute, it appears that the Court as a rule takes deci-
sions ex jure proprio, independently of international law, so that the legal
situation determined by the Court is, ex definitione, the true position
under international law.
   Such a view can only be seen as judicial extremism, which cannot but
be conducive to absurd results. A good illustration in that regard is pre-
cisely this particular case.
   If the findings of the Court are to be taken as correct, whatever doubt
may be thrown on them by subsequent events, the conclusion that fol-
lows is that the Respondent State in the case at hand is the Federal
Republic of Yugoslavia because the Court so decided in its 1996 Judg-
ment, which, according to the finding by the majority of the Court, is res
judicata.
   26. A non-preliminary objection, as a vehicle for challenging a judg-
ment on preliminary objections, brings into play the principle of com-
pétence de la compétence in accordance with paragraph 6 of Article 36 of
the Statute.
   That is exactly what happened in the present case.
   In May 2001, the Federal Republic of Yugoslavia submitted a docu-

435

475       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                          uA)
ment entitled “Initiative to the Court to Reconsider Ex Officio Jurisdic-
tion over Yugoslavia”, requesting the Court to adjudge and declare that
it had no jurisdiction ratione personae over it. The request was based on
the argument that the Federal Republic of Yugoslavia had not been a
party to the Statute of the Court until its admission to the United
Nations on 1 November 2000 and that it had not been a party to the
Genocide Convention (Judgment, para. 26). In addition, Yugoslavia
asked the Court to suspend the proceedings on the merits until the deci-
sion on the Initiative was rendered (ibid.).

   In a letter of 3 December 2001, Bosnia and Herzegovina requested the
Court, inter alia, to “respond in the negative to the request embodied in
the ‘Initiative’” (Judgment, para. 28).
   Acting on this matter, the Court decided, as shown by a letter from the
Registrar dated 12 June 2003, that it could not effect a suspension of the
proceedings.
   As regards the issue of reconsideration by the Court of its jurisdiction
in the case, it was stated inter alia :
         “The Court . . . as was in fact observed by Serbia and Montenegro
      in the ‘Initiative’ document, and as the Court has emphasized in the
      past, is entitled to consider jurisdictional issues proprio motu, and
      must ‘always be satisfied that it has jurisdiction’ (Appeal Relating to
      the Jurisdiction of the ICAO Council, I.C.J. Reports 1972, p. 52). It
      goes without saying that the Court will not give judgment on the mer-
      its of the present case unless it is satisfied that it has jurisdiction.
      Should Serbia and Montenegro wish to present further argument to
      the Court on jurisdictional questions during the oral proceedings on
      the merits, it will be free to do so.” (Letter of 12 June 2003 ; emphasis
      added.)
   In a word, the view of the majority that “[s]ubject only to [the] possi-
bility of revision, the applicable principle is res judicata pro veritate
habetur . . .” (Judgment, para. 120) seems to run contra factum proprium.

2. Erroneous assessment of the relevant conditions for its application in
   casu

   27. The conditions for the application of the res judicata rule can be
divided into two categories : intrinsic and extrinsic. As regards the intrin-
sic one, according to the classic formula, res judicata applies only where
there is an identity of parties (eadem personae) and an identity of the
question at issue (eadem res). The latter element is sometimes divided
into the object (petitum) and the grounds advanced (causa petendi), for
example, Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów),
Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, dissenting opinion of

436

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                                                         uA)
Judge Anzilotti, p. 23 ; Polish Postal Service in Danzig, Advisory Opin-
ion, 1925, P.C.I.J., Series B, No. 11, p. 30.
   The extrinsic condition for applying the res judicata rule, assuming the
intrinsic elements are present, is the validity of the judgment. In the
Effect of Awards of Compensation Made by the United Nations Adminis-
trative Tribunal case, the Court clearly set out the requirement of validity
by construing the question put to it by the General Assembly as referring
“only to awards of compensation made by the Administrative Tribunal,
properly constituted and acting within the limits of its statutory compe-
tence” (I.C.J. Reports 1954, p. 55).

   28. The “Long March” on the part of the majority of the Court
through the issue of the Respondent’s jus standi, ended, after almost
14 years, by its adoption of a third successive position, a position sharing
a negative characteristic with the preceding two. That is to say, it has not
provided any answer to the question which is the sedes materiae of the
jurisdictional complex in the present case, whether the Respondent,
under Article 35 of the Statute of the Court, possesses the right to appear
before the Court or not.
   The Court’s first position, embodied in the 1996 Judgment, could be
characterized as that of clearly avoiding the question. The majority sim-
ply closed their eyes to the relevant issue, as if it did not exist at all. A
characteristic feature of the second position, elaborated in the Judgment
in Application for Revision of the Judgment of 11 July 1996 in the Case
concerning Application of the Convention on the Prevention and Punish-
ment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina) (Judg-
ment, I.C.J. Reports 2003, p. 7), is the attempt to construct a sui generis
position of the Respondent vis-à-vis the United Nations in the period
1992-2000. It is some type of explanation for the tacit treatment of the
Respondent as a State having jus standi before the Court. In the present
Judgment, the majority has formulated a third position, one that can be
described, from the substantive point of view, as a return to a modified
avoidance position. Specifically, the third position accepts the incontest-
able fact that the Respondent was admitted, by decision of the competent
political organs of the United Nations, to membership of the world
Organization on 1 November 2000 (Judgment, para. 99) as a new Mem-
ber, but it avoids accepting the necessary consequences of that fact as
regards the Respondent’s jus standi relying on an erroneous perception of
the res judicata rule.

  However, in another dispute in which Serbia and Montenegro was
involved, namely, the Legality of Use of Force cases, the Court decided
that the act of admission of Serbia and Montenegro to United Nations
membership was determinative as regards jus standi.

437

477        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                           uA)
  This sharp contradiction in determining the legal consequences of the
admission of Serbia and Montenegro as regards its jus standi before the
Court perhaps vindicates, Honoré de Balzac’s cynicism in observing that :
“Les lois sont des toiles d’araignées à travers lesquelles passent les grosses
mouches et où restent les petites.” 19

   29. The issue of jus standi deserves a more detailed elaboration due to
its crucial importance in the present case.

3. Jus standi 20 as an autonomous processual condition
   30. Jus standi, in relation to jurisdiction understood in the standard
sense to be the Court’s power to solve concrete disputes, is an autono-
mous and separate processual condition. Substantively, it means a gen-
eral, potential right of a State entitling it, under the additional proviso of
the existence of a proper jurisdictional instrument, to participate in a case
before the Court in the capacity of a party, either as an Applicant or as
a Respondent, or as an intervening party. As such, jus standi is a general,
positive processual condition. It is materialized if a State possessing jus
standi brings legal action, has an action brought against it, or, in accord-
ance with the relevant rules of the Court, intervenes in proceedings pend-
ing before the Court. Being autonomous, jus standi belongs to a State
even if the State is not a party to the dispute or a party to the proceedings
pending before the Court.

  There is no direct, organic link between jus standi before the Court and
the jurisdiction of the Court. As the Court stated in the South West
Africa cases (Second Phase) :
        “It is a universal and necessary, but yet almost elementary princi-
      ple of procedural law that a distinction has to be made between . . .
      the right to activate a court and the right of the court to examine the
      merits of the claim.” (South West Africa, Second Phase, Judgment,
      I.C.J. Reports 1966, p. 39, para. 64 ; Fisheries Jurisdiction (Federal
      Republic of Germany v. Iceland), Jurisdiction of the Court, Judg-
      ment, I.C.J. Reports 1973, p. 53, para. 11 ; emphasis added.)
   Accordingly, the Court does not acquire jurisdiction in the concrete
dispute eo ipso, simply because the parties to the dispute possess jus
standi before the Court, just as vice versa the existence of a proper juris-

   19 Honoré de Balzac, La Maison Nucingen (http://www.citationspolitiques.com/

recherche.php3 ?rechercheLes+lois+sont+des+toiles+d92araignE9es).
   20 The expression “locus standi” or “locus standi in judicio” is usually used. However

the expression “jus standi” appears to be more appropriate since it directly addresses the
right established by Article 35 of the Statute. The expression “locus standi” is used when
it is, as such, employed in the jurisprudence of the Court.

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478        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                           uA)
dictional instrument in force between the parties to the dispute does not
imply jus standi of the parties to the dispute before the Court.
   31. In relation to the issue of jurisdiction, jus standi is antecedent in
nature, being a pre-condition for the establishment of the Court’s juris-
diction in casu. In the absence of jus standi of a State (or States) in the
dispute, it is legally impossible for the Court to establish its jurisdiction,
for “only those States which have access to the Court can confer jurisdic-
tion upon it” (Legality of Use of Force (Serbia and Montenegro v.
Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004,
p. 1030, para. 45). Moreover, in such a case the Court would not be
authorized either to take into consideration the issue of its jurisdiction or
to take any judicial action of a substantive nature.
   Not only is a State, without jus standi precluded from being a party in
the proceedings before the Court, but the Court cannot stricti juris even
have any dealings with such a State in the judicial, as opposed to admin-
istrative, sphere. The Court cannot have recourse to the exercise of the
power, vis-à-vis such a State, of determining its jurisdiction (compétence
de la compétence), nor can it indicate provisional measures of protection
or exercise any of the powers inherent in the judicial function.
   Consequently actions of the Court, with the exception of those aimed
at establishing the jus standi of a State to a dispute are not legally
founded in the law of the Court. It could not even be said of any such
actions that they had been taken ultra vires, because the effect of ultra
vires implies a measure of judicial vires which the Court, has exceeded in
the concrete case, but rather the legally non-existent, factual actions had
been taken sine vires.
   Accordingly, the absence of jus standi would be a reason for the abso-
lute nullity of Court actions purporting to be judicial in nature.

  3.1. Legal force of the jus standi rule
  32. Article 35, paragraph 1, of the Statute is of a constitutional nature,
an integral part of the public order established by the Charter of the
United Nations. As such, together with other provisions of the Statute of
such a nature, it represents a jus cogens 21, incapable of any modification
even by the Court itself. Therefore,

         “The function of the Court to enquire into the matter and reach
      its own conclusion is thus mandatory upon the Court irrespective of
      the consent of the parties and is in no way incompatible with the
      principle that the jurisdiction of the Court depends on consent.”
      (Legality of Use of Force (Serbia and Montenegro v. Netherlands),

  21 G. Schwarzenberger, “International Law as Applied by International Courts and

Tribunals”, Vol. IV, International Judicial Law, 1986, pp. 434-435 : R. Kolb, Théorie du
jus cogens international, Essai de relecture du concept, 2001, pp. 344-348 ; Fachiri, The
Permanent Court of International Justice, 1932, p. 63.

439

479       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                          uA)
      Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1027,
      para. 35.)
Article 35 of the Statute provides :
        “(1) The Court shall be open to the States parties to the present
      Statute.
          (2) The conditions under which the Court shall be open to other
      States shall, subject to the special provisions contained in treaties in
      force, be laid down by the Security Council, but in no case shall such
      conditions place the parties in a position of inequality before the
      Court.” (Emphasis added.)
   The imperative form of the provisions of Article 35, paragraphs 1 and
2, of the Statute carries with it a dual — permissive and prohibitive —
meaning.
   On the one hand, the provisions authorize a party to the Statute — and
a State not party to the Statute, on the condition that it accept the gen-
eral jurisdiction of the Court in conformity with Security Council resolu-
tion 9 (1946) — to gain access to the Court. On the other, they prohibit
access to the Court by a non-party to the Statute which has not accepted
the general jurisdiction of the Court pursuant to Security Council resolu-
tion 9 (1946).
   The combined effects of Article 35, paragraphs 1 and 2, of the Statute
together with Article 34, paragraph 1, of the Statute express the limited
nature of the right to judicial protection before the International Court
of Justice.
   The limited right to judicial protection before the International Court
of Justice is part of the public order of the Organization of the United
Nations, whose principal judicial organ is the Court. In Article 93 (1) and
(2) the Charter provides :
        “(1) All Members of the United Nations are ipso facto parties to
      the Statute of the International Court of Justice.
          (2) A State which is not a Member of the United Nations may
      become a party to the Statute of the International Court of Justice
      on conditions to be determined in each case by the General Assem-
      bly upon the recommendation of the Security Council.”
This should be read in conjunction with Articles 34 (1) and 35 (1) and (2)
of the Statute of the Court, which is itself “an integral part of the present
Charter” (Art. 92 of the Charter).
   As such, paragraphs 1 and 2 of Article 35 of the Statute are mandatory
and the Court is bound to apply them ex officio. In respect
of the temporal element in the application of the rules, given the
antecedent nature of jus standi, the Court is under an obligation to
establish the jus standi of the parties to the dispute before any
proceedings whatsoever, and to take account of it throughout the
entire proceedings. For instance, it is possible that a party in the

440

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                                                          uA)
case before the Court ceases to exist as a State in the course of the
proceedings.
  33. A proper pattern of ex lege reasoning of the Court, in the other-
wise modest jurisprudence of the Court relating to jus standi, is offered
by the Judgment in the Fisheries Jurisdiction (Federal Republic of Ger-
many v. Iceland) case :

      “the Minister for Foreign Affairs of Iceland seemed to suggest that
      the timing of the declaration of the Federal Republic of Germany of
      29 October 1971, deposited with the Registrar on 22 November
      1971, may have had some effect on the binding force of the agree-
      ment contained in the Exchange of Notes of 19 July 1961 or on the
      right of access to the Court of the Federal Republic of Germany. As
      to the first point, it is clear that the binding force of the agreement
      between the two Governments, which is to be examined in the
      present Judgment, bears no relation to the date on which the declara-
      tion required by the Security Council resolution of 15 October 1946
      was deposited with the Registrar : the former is designed to establish
      the jurisdiction of the Court over a particular kind of dispute ; the
      latter provides for access to the Court of States which are not parties
      to the Statue. As to the second point (i.e., the question of the Federal
      Republic’s right of access to the Court), according to the Security
      Council resolution, a declaration, which may be either particular or
      general, must be filed by the State which is not a party to the Statute,
      previously to its appearance before the Court. This was done.” (Juris-
      diction of the Court, Judgment, I.C.J. Reports 1973, p. 53, para. 11 ;
      emphasis added.)

The pattern was followed by the Court in the Legality of Use of Force
cases as well :

      “the question whether Serbia and Montenegro was or was not a
      party to the Statute of the Court at the time of the institution of the
      present proceedings is fundamental ; for if it were not such a party,
      the Court would not be open to it under Article 35, paragraph 1, of
      the Statute. In that situation, subject to any application of para-
      graph 2 of that Article, Serbia and Montenegro could not have prop-
      erly seised the Court, whatever title of jurisdiction it might have
      invoked, for the simple reason that Serbia and Montenegro did not
      have the right to appear before the Court.
         The Court can exercise its judicial function only in respect of
      those States which have access to it under Article 35 of the Statute.
      And only those States which have access to the Court can confer
      jurisdiction upon it.” (Legality of Use of Force (Serbia and Mon-
      tenegro v. Belgium), Preliminary Objections, Judgment, I.C.J.
      Reports 2004, p. 299, para. 46 ; emphasis added.)

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  3.2. Differentia specifica between jus standi and jurisdiction of the
       Court ratione personae

   34. Both notions — jus standi and jurisdiction ratione personae —
share the characteristic of belonging to the corpus of processual condi-
tions necessary for the validity of proceedings — whether incidental or
on the merits — before the Court and with respect to the reference of
disputes to the Court for decision. They also share the attribute of being
absolute processual conditions that must be satisfied in every case and
both are positive requirements in that, if they are not satisfied, the Court
cannot entertain the claims made.

   35. The differences between them, however, are considerably greater,
making them distinct processual conditions. Primo, they reflect the dif-
ferent aspects of the legal nature of the Court. While jurisdiction ratione
personae, as one of the relevant aspects of jurisdiction, expresses the con-
sensual nature of the Court’s jurisdiction, jus standi derives from the fact
that the International Court of Justice, in contrast to arbitration courts,
is not a fully open court of law. Access to the Court is limited in two
respects on the basis of Articles 34, paragraph 1, and Article 35, para-
graphs 1 and 2, of the Statute of the Court. Tertio, although both juris-
diction ratione personae and jus standi are regulated by the rules of the
Statute having an objective, constitutional character, there exists a fun-
damental difference in the application of these rules. The rules of the
Statute which concern jus standi are applied by the Court ex lege, while
the corresponding rules concerning jurisdiction ratione personae are
applied on the basis of the consent of the States to the dispute. In its
Judgments in the Legality of Use of Force cases, the Court stated, inter
alia, that

      “a question of jurisdiction . . . relates to the consent of a party and
      the question of the right of a party to appear before the Court under
      the requirements of the Statute, which is not a matter of consent”
      (Serbia and Montenegro v. Netherlands, Preliminary Objections,
      Judgment, I.C.J. Reports 2004, p. 1026, para. 35).

Therefore, it can be said that in substance the jurisdiction of the Court is
governed by the law in force between the parties, while jus standi is gov-
erned by objective rules of the Statute as such.
   Quatro, the differing natures of jus standi, on the one hand, and
jurisdiction ratione personae, on the other, generate corresponding
legal consequences in the proceedings. A lack of jus standi
possesses an automatic effect, since, as a rule, it cannot be over-
come in the proceedings before the Court, while a lack of juris-
diction ratione personae is surmountable as the parties may either
confer jurisdiction upon the Court in the course of the proceedings

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or perfect it — for instance, by express agreement or by forum
prorogatum.
  As a consequence, in contrast to a lack of jus standi, the absence of
jurisdiction ratione personae does not preclude valid seisin of the Court.

  Quinto, the competence or special jurisdiction in the particular case of
the International Court of Justice, as a semi-open court of law with juris-
diction based on consent of the parties to a dispute, implies twofold con-
sent by States :

(a) consent that the Court is “an organ instituted for the purpose jus
    dicere” (Corfu Channel, Preliminary Objection, Judgment, 1948,
    I.C.J. Reports 1947-1948, dissenting opinion of Judge Daxner,
    p. 39). This consent is expressed indirectly, through membership of
    the United Nations, or directly, in the case of a non-Member of the
    United Nations either by adhering to the Statute of the Court or by
    accepting the general jurisdiction of the Court in conformity with
    Security Council resolution 9 (1946), as a preliminary condition ;
    and
(b) consent that the Court is competent to deal with the particular dis-
    pute or type of dispute which is given through relevant jurisdictional
    bases under Article 36 of the Statute, as a substantive but qualified
    condition.
   As the Court stated in the Nottebohm case : “under the system of the
Statute the seisin of the Court by means of an Application is not ipso
facto open to all States parties to the Statute, it is only open to the extent
defined in the applicable Declarations” (Nottebohm (Liechtenstein v.
Guatemala), Preliminary Objection, Judgment, I.C.J. Reports 1953,
p. 122). The principle was further elaborated by the Court in the Legality
of the Use of Force case :
         “Whereas the Court, under its Statute, does not automatically
      have jurisdiction over legal disputes between States parties to that
      Statute or between other States to whom access to the Court has
      been granted . . . whereas the Court can therefore exercise jurisdic-
      tion only between States parties to a dispute who not only have
      access to the Court but also have accepted the jurisdiction of the
      Court, either in general form or for the individual dispute con-
      cerned.” (Provisional Measures, Order of 2 June 1999, I.C.J. Reports
      1999 (I), pp. 549-550, para. 20 ; emphasis added.)

   36. In the application of the two autonomous rules — jurisdiction
ratione personae and jus standi — with their own objects and effects, the
latter possesses logical and normative priority. Jus standi, as an expres-
sion of the right to judicial protection is antecedent in nature, is a pre-
liminary question which “should be taken in advance of any question of

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competence” (Northern Cameroons (Cameroons v. United Kingdom),
Preliminary Objections, I.C.J. Reports 1963, separate opinion of Sir
G. Fitzmaurice, p. 105 ; emphasis in the original). For

        “The Court can exercise its judicial function only in respect of
      those States which have access to it under Article 35 of the Statute.
      And only those States which have access to the Court can confer
      jurisdiction upon it.” (Legality of Use of Force (Serbia and Mon-
      tenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J.
      Reports 2004, p. 1030, para. 45.)

4. Assessment of the Respondent’s jus standi by the majority

  37. The majority assessment of the Respondent’s jus standi is some-
what confused and significantly self-contradictory, mostly because it
seeks to reconcile the irreconcilable.
  As regards the nature of jus standi, i.e., whether or not it is an autono-
mous processual requirement, the position of the majority is that it “may
be regarded as an issue prior to that of jurisdiction ratione personae, or
as one constitutive element within the concept of jurisdiction ratione per-
sonae” (Judgment, para. 102).
  The finding could be considered correct if it related to the terminology
used in relation to these two notions, but not in the present context.

   If, as pointed out, jus standi, in contrast to jurisdictional issues, “is not
a matter of the consent of the parties” (ibid.), then obviously the latter
understanding does not apply. Like any other processual requirement, jus
standi cannot simultaneously be based on the consent of the parties and
on the requirements of the Statute, which is not a matter of consent, as
stated in the Judgment in the Legality of Use of Force (Serbia and Mon-
tenegro v. Belgium) (Judgment, I.C.J. Reports 2004, p. 295, para. 36) to
which reference is made.

   After all, in further reasoning the Judgment determines jus standi in
negative terms as a distinct condition by saying that “the capacity to
appear before the Court . . . was an element in the reasoning of the 1996
Judgment, which can — and indeed must — be read into the Judgment as
a matter of logical construction” (Judgment, para. 135 ; emphasis added).
If jus standi is indeed an element of jurisdiction ratione personae, then
there is probably no need for any “logical construction” on the basis of
which jus standi, although unstated, should be read into the judgment. It
appears, however, that the legal situation is a different one. As the Court
stated in the South West Africa cases :

        “It is a universal and necessary, but yet almost elementary princi-

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                                                          uA)
      ple of procedural law that a distinction has to be made between . . .
      the right to activate a court and the right of a court to examine the
      merits of the claim.” (South West Africa, Second Phase, Judgment,
      I.C.J. Reports 1966, p. 39, para. 64 ; Fisheries Jurisdiction, (United
      Kingdom v. Iceland), Jurisdiction of the Court, Judgment, I.C.J.
      Reports 1973, p. 53, para. 11.)

   Jus standi can be perceived as an element of jurisdiction ratione per-
sonae only if in a descriptive sense or if jurisdiction ratione personae is
understood lato sensu to comprise different legal concepts set out in Arti-
cles 35 and 36 of the Statute.
   38. In casu, the relevant issue is not jurisdiction ratione personae, but
the issue of the right of Serbia to appear before the Court. The petitum
non-preliminary objection of Serbia is its jus standi and not jurisdiction
ratione personae, and causa petendi is Article 35 of the Statute and not its
Article 36. In that sense, the finding of the Court in Asylum case seems
applicable. In the said case, the Court, inter alia, found :

      “the question of the surrender of the refugee was not decided by the
      Judgment of November 20th. This question is new . . . There is con-
      sequently no res judicata upon the question of surrender.” (I.C.J.
      Reports 1951, p. 80.)

It is true that the Respondent, while invoking the lack of jus standi on its
part, uses also the expression “jurisdiction ratione personae”. But, that
fact can hardly be excusable for the Court because involved here is a
questio juris which falls within the ambit of the rule of jura novit curia.
   39. The Judgment correctly recognizes that the capacity of the Federal
Republic of Yugoslavia to appear before the Court in accordance with
the Statute “was unstated” in the 1996 Judgment, that is, that “[n]othing
was stated in the 1996 Judgment about . . . whether it [Federal Republic
of Yugoslavia] could participate in proceedings before the Court . . .”
(Judgment, para. 122). The matter is clearly self-evident.
   And it is self-evident not only as regards the dispositif of the Judgment,
at that. The reasons in point of law which served as the basis for the dis-
positif of the Judgment are basically limited to the question whether the
parties to the dispute could have been considered parties to the Genocide
Convention (1996 Judgment, paras. 17-20), and to such related issues as
automatic succession in relation to certain types of international treaties
and conventions (ibid., paras. 21, 23), the nature of the Genocide Con-
vention (ibid., para. 22) and the effect of non-recognition of the contrac-
tual nexus between parties to a multilateral treaty (ibid., paras. 25, 26).

  Ergo, the evidence appears to be incontrovertible : the Court’s
Judgment of 11 July 1996 did not, either in the dispositif or in
the principles underlying it, touch upon, let alone decide, the issue

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of the jus standi of the Federal Republic of Yugoslavia before the
Court.
   Moreover, there is no trace in other components of the 1996 Judg-
ment — the headnote setting out the main issues discussed, the summary
of the proceedings, including the parties’ submissions — indicating that
the Court at least considered the issue.
   However, the majority has not drawn the necessary consequences from
factum proprium. Regardless of possible differences in the perception of
the res judicata rule as regards its nature and effects, there remain the
classic intrinsic conditions for the application of the rule in casu. And it
is obvious, on the basis of the majority view itself, that one of the ele-
ments — identity of the question at issue eadem res — is lacking, which
automatically disqualifies the rule from application in relation to the
1996 Judgment.

  40. The judgment has been construed by inference, which, combined
with a peculiar perception of the res judicata rule, is supposed to avert
the necessary consequences of the Respondent’s lack of jus standi in the
present case.
  The main elements of the reasoning come down to the following :
   The operative part of the 1996 Judgment saying that “on the basis of
Article IX of the Convention on the Prevention and Punishment of
the Crime of Genocide, [the Court] has jurisdiction to decide upon
the dispute”, being res judicata, established the jurisdiction of the Court
in casu
      “with the full weight of the Court’s judicial authority. For a party to
      assert today that, at the date the 1996 Judgment was given, the
      Court had no power to give it, because one of the parties can now be
      seen to have been unable to come before the Court is . . . to call in
      question the force as res judicata of the operative clause of the Judg-
      ment.” (Judgment, para. 123.)

The fact that the Court has given no consideration to, let alone decided
upon, the jus standi of the Respondent is of no significance, because it
must be considered
      “by necessary implication, to mean that the Court at that time per-
      ceived the Respondent as being in a position to participate in cases
      before the Court. On that basis, it proceeded to make a finding on
      jurisdiction which would have the force of res judicata.” (Judgment,
      para. 132.)
  The reasoning arising by “necessary implication” continues, so that

      “the express finding in the 1996 Judgment that the Court had juris-
      diction in the case ratione materiae, . . . is a finding which is only

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      consistent, in law and logic, with the proposition that, in
      relation to both Parties, it had jurisdiction ratione personae in its
      comprehensive sense, that is to say, that the status of each of them
      was such as to comply with the provisions of the Statute concerning
      the capacity of States to be parties before the Court” (Judgment,
      para. 133).
   The “necessary implication” underlying the reasoning referred to above
is, in fact, an attempt to incorporate inferential judgment, or judgment by
implication, into the sphere of judicial reasoning.

   Given the very concept of judgment, i.e., that “[n]othing was stated in
the 1996 Judgment about . . . whether it [the Federal Republic of Yugo-
slavia] could participate in proceedings before the Court . . .” (Judgment,
para. 122), the requirements relating to the content and structure of judg-
ments, as laid down in Article 56, paragraph 1, of the Statute and Arti-
cle 95, paragraph 1, of the Rules, the underlying legal considerations and,
even common sense, the interpretation of the Judgment by inference is, at
the very least, contradictio in adiecto. In particular, in relation to the
issue of jus standi, which can by no means be said to be dependent on,
or for that matter an aspect of, the issue of jurisdiction ratione
personae which was formally decided. It is not only a distinct and
autonomous issue but also one that determines objective limits of the
judicial power of the Court, legality of its actions in terms of objective
international law.

   41. The wording of the Judgment suggests that the reason why the
Court did not consider and decide upon jus standi of the Respondent was
the position taken in that regard by Parties to the dispute, but particu-
larly the Respondent.
        “Nothing was stated in the 1996 Judgment about . . . the question
      whether it [the FRY] could participate in proceedings before the
      Court ; for . . . both Parties had chosen to refrain from asking for a
      decision on these matters.” (Judgment, para. 122.)
The Respondent raised seven preliminary objections, but “[n]one of these
objections were however founded on a contention that the FRY was not
a party to the Statute at the relevant time ; that was not a contention spe-
cifically advanced in the proceedings on the preliminary objections”
(Judgment, para. 106).
   Owing to the nature of the issue of jurisdiction, the reason is not effec-
tive as an excuse and has no legal effect in the matter at hand.

   42. In view of the fact that “the establishment or otherwise of jurisdic-
tion is not a matter for the parties but for the Court itself” (Fisheries
Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment,

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                                                          uA)
I.C.J. Reports 1998, p. 450, para. 37 ; also, separate opinion of Presi-
dent McNair in the jurisdiction phase of the case concerning Anglo-
Iranian Oil Co., in which he stated that “[a]n international tribunal
cannot regard a question of jurisdiction solely as a question inter partes”
(Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 116)),
the dispute between the parties as to the jurisdiction in the prelimi-
nary objection phase is not a necessary condition for the Court to
address the issue of jurisdiction and, a fortiori, the issue of jus
standi.

  Preliminary objections raised by a party are only a tool, a procedurally
designed weapon for the establishment of the jurisdiction of the Court,
suo nomine et suo vigore, for it is under an obligation to do so ex officio.
The legal significance of proceedings on preliminary objections was
defined by the Court in the case concerning Rights of Minorities in Upper
Silesia (Minority Schools) (hereinafter referred to as “Minority Schools”
as follows :
     “the raising of an objection by one Party merely draws the attention
     of the Court to an objection to the jurisdiction which it must ex offi-
     cio consider” (Rights of Minorities in Upper Silesia (Minority
     Schools), Judgment No. 12, 1928, P.C.I.J., Series A, No. 15, p. 23 ;
     emphasis added).
  Or, as stated by the Court in the Genocide Convention case :

      “[t]he Court must, in each case submitted to it, verify whether it has
      jurisdiction to deal with the case, . . . [s]uch objections as are raised
      by the Respondent may be useful to clarify the legal situation” (Pre-
      liminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 622,
      para. 46 ; emphasis added).

   Accordingly, the establishment by the Court of its jurisdiction in casu
is not necessarily linked with the dispute as to jurisdiction. If the Court is
under a duty to verify its jurisdiction in each specific case whether or not
there is a preliminary objection as such, then the pleadings of the parties
in the proceedings are not a fortiori of decisive importance in that
respect. If, as Shabtai Rosenne, commenting on the case concerning
Monetary Gold Removed from Rome in 1943 (hereinafter referred to as
“Monetary Gold”) says :

      “[t]he fact that an objection is made does not mean — in the eyes of
      the Court — that the Court is being asked not to determine the mer-
      its of the claim under any circumstances” 22,

  22 Shabtai Rosenne, The Law and Practice of the International Court, 1920-1996, 3rd

ed., Vol. II, Jurisdiction, 1997, p. 863.

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then the contrary is equally valid, i.e., that the Court is being asked not
to determine the merits of the claim if an objection to the preliminary
objection is not made. Extensive practice of the Court to this effect has
been established.
   The Court’s dictum in the case concerning the Appeal Relating to the
Jurisdiction of the ICAO Council (hereinafter referred to as “ICAO
Council”) may be taken as a synthesis of that practice : “[t]he Court must
however always be satisfied that it has jurisdiction, and must if necessary
go into that matter proprio motu” (Judgment, I.C.J. Reports 1972, p. 52,
para. 13).
   This is also reflected in the opinions of judges. In the case concerning
Mavrommatis Palestine Concessions, Judge Moore in his dissenting
opinion stated that “even though the Parties be silent, the tribunal, if it
finds that competence is lacking, is bound of its own motion to dismiss
the case” (Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 58) ; in the
Minority Schools case, Judge Huber in his dissenting opinion found that
the Court “must ex officio ascertain on what legal foundation it is to base
its judgment upon the claims of the Parties” (Judgment No. 12, 1928,
P.C.I.J., Series A, No. 15, p. 54) ; and in the case concerning the Free
Zones of Upper Savoy and the District of Gex, Judge Kellogg pointed
out in his observations attached to the Order of 6 December 1930
that it was not necessary that the question of jurisdiction be raised
by one of the parties, since “[i]t may and should be raised by the
Court on its own initiative, as was done in the Eastern Carelia
case” (Order of 6 December 1930, P.C.I.J., Series A, No. 24,
p. 43).
   43. As a questio juris 23, the jurisdiction of the Court is within the
scope of the principle jura novit curia. In the case concerning Territorial
Jurisdiction of the International Commission of the River Oder (herein-
after referred to as “River Oder”) it was not until the oral proceedings
that the Polish Government contended that the Barcelona Convention
had not been ratified by Poland. The six Respondents asked the
Court to reject the Polish contention a limine, for having been sub-
mitted at such an advanced stage of the proceedings. The Court dismissed
the objection as untenable for “[t]he fact that Poland has not ratified
the Barcelona Convention not being contested, it is evident that the

  23 “The existence of jurisdiction of the Court in a given case is ... not a question of fact,

but a question of law to be resolved in the light of the relevant facts.” (Border and Trans-
border Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judg-
ment, I.C.J. Reports 1988, p. 76, para. 16.) The question of the Court’s jurisdiction is

      “necessarily an antecedent and independent one — an objective question of law —
      which cannot be governed by preclusive considerations capable of being so expressed
      as to tell against either Party — or both Parties” (Appeal Relating to the Jurisdiction
      of the ICAO Council, Judgment, I.C.J. Reports 1972, p. 54, para. 16 (c)).

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                                                          uA)
matter is purely one of law such as the Court . . . should examine
ex officio” (Judgment No. 16, 1929, P.C.I.J., Series A, No. 23,
p. 19).
   Being bound by law, the Court is not bound by the arguments of the
parties. This follows clearly from the principle jura novit curia addressed
by the Court in its Judgments in the cases concerning Fisheries Jurisdic-
tion (United Kingdom v. Iceland) and Fisheries Jurisdiction (Federal
Republic of Germany v. Iceland) :

        “The Court . . . as an international judicial organ, is deemed to
      take judicial notice of international law, and is therefore required in
      a case falling under Article 53 of the Statute, as in any other case, to
      consider on its own initiative all rules of international law which
      may be relevant to the settlement of the dispute . . . for the law lies
      within the judicial knowledge of the Court.” (Merits, Judgment,
      I.C.J. Reports 1974, p. 9, para. 17 ; ibid., p. 181, para. 18 ; emphasis
      added.)

The principle has also been confirmed in the Nicaragua case by a dictum :

     “[f]or the purpose of deciding whether the claim is well founded in
     law, the principle jura novit curia signifies that the Court is not solely
     dependent on the argument of the parties before it with respect to
     the applicable law” (Merits, Judgment, I.C.J. Reports 1986, p. 24,
     para. 29 ; cf. “Lotus”, Judgment No. 9, 1927, P.C.I.J., Series A,
     No. 10, p. 31).
Consequently, the rule according to which a party seeking to assert a fact
must bear the burden of proving it “has no relevance for the establish-
ment of the Court’s jurisdiction” (Fisheries Jurisdiction (Spain v.
Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998,
p. 450, para. 37).
   44. Accordingly, in these circumstances, in its 1996 Judgment the
Court proceeded from the “assumption” that the FRY possessed the
right to appear before the Court in accordance with the Statute
(Judgment, para. 135).
   That assumption “was an element in the reasoning of the 1996 Judgment
which can — and indeed must — be read into the judgment as a matter
of logical construction” (ibid.). It does not, however, follow that “that
element is not one which can at any time be reopened and
re-examined . . .” (ibid.).
   The reasoning seems to fail to take into account the differences between
legal assumptions (praesumptio juris) and judicial (praesumptio facti vel
homine), into which category the “assumption” regarding the Federal
Republic of Yugoslavia’s jus standi before the Court actually falls.

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  Judicial presumption, along with legal presumption 24, is one of the
main sorts of presumption in international law.
  It means that a certain fact or state of affairs, even though it has not been
proved, is taken by an international tribunal as truthful. As such it does
not necessarily coincide with, or is not equivalent to, the fact or the state
of affairs.

   Considerations of a practical nature prevail in the rationale for the use
of judicial presumption.
   Judicial presumption is a tool used to preclude a long wait in discov-
ering the full facts and exact situation on which depends the existence,
content or cessation of the right where such protracted periods would
have adverse consequences for the parties concerned or would impede the
due course of legal proceedings.

  45. As a sort of presumption, a judicial presumption has some specific
features differentiating it from a legal presumption (praesumptio juris).

  Two principal features of judicial presumption should be mentioned in
this regard.
   Primo, judicial presumption is, as a rule, a natural, factual presump-
tion (praesumptio facti vel homine) having no basis in the particular
rules that constitute the law of the international tribunal or the law it is
applying. It is an inherent element of the legal reasoning of the interna-
tional tribunal in interpreting and applying the rules of law.

  24 Better known than judicial presumptions, legal presumptions (praesumptio juris) are

widely applied in international law. International tribunals are used to resorting to proof
by inferences of fact (présomption de fait) or circumstantial evidence (Corfu Channel,
Merits, Judgment, I.C.J. Reports 1949, p. 18). For legal presumption in the practice of the
Inter-American Court of Human Rights, see T. Buergenthal, R. Norris and D. Shelton,
Protecting Human Rights in the Americas, Selected Problems, 2nd ed., 1986, pp. 130-132
and pp. 139-144.

   The practice of international courts abounds in presumptions based on general principles
of international law, whether positive such as presumptions of good faith (exempli causa,
Mavrommatis Jerusalem Concessions, Judgment No. 5, 1925, P.C.I.J., Series A, No. 5,
p. 43) or negative such as presumptions of abuse of right (Certain German Interests in
Polish Upper Silesia, Merits, Judgment No. 7, 1926, P.C.I.J., Series A, No. 7, p. 30 ; Free
Zones of Upper Savoy and the District of Gex, Order of 6 December 1930, P.C.I.J.,
Series A, No. 24, p. 12 ; Corfu Channel, Merits, Judgment, 1949, I.C.J. Reports 1949,
p. 119 : dissenting opinion of Judge Ecer). They possess special weight in the interpreta-
tion of treaties since the function of treaty interpretation is to discover “what was, or what
may reasonably be presumed to have been, the intention of the parties to a treaty when
they concluded it” (Harvard Law School, Research in International Law, Part III, Law of
Treaties, Art. 19, p. 940 ; emphasis added).

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                                                         uA)
  Secundo, in contrast to legal presumptions which can be irrefutable
(praesumptio juris et de jure), judicial presumptions as natural or factual
ones are, by definition, refutable. Their refutability is, however, specific in
nature.

  Given that it is a part of the reasoning of the international tribunal, a
judicial presumption cannot be refutable in the same way that a legal pre-
sumption can be. A judicial presumption, as such, is in fact capable of
being abandoned or replaced by the international tribunal.

   In its legal reasoning the international tribunal abandons it, or replaces
it, by another presumption or established fact. In the strict sense, only
those findings or decisions of the international tribunal that are based on
legal presumptions are refutable. However, judicial presumptions lose the
ratio of their existence when the international tribunal identifies the con-
troversial matter in controversy which constitutes its object. They then
fall away by themselves because they are deprived of their subject. But
even then it is the duty of the international tribunal to refute, in the
proper proceedings, its own finding or decision based on presumption.

   Also, in contrast to a legal presumption, a judicial presumption is not,
and by its effects cannot be equated with, a judicial finding of the Court,
being its factual substitute. Hence, it cannot be considered that, by rely-
ing on that particular presumption, the Court has taken a decision on the
Respondent’s jus standi. Rather, the Court has done so factually as an
element of its reasoning.

  46. The rationale of judicial presumptions is provisionally to substi-
tute for proven facts or circumstances in order to avert delay in identify-
ing the exact facts and situations where such delay is likely to have
adverse consequences for the parties to a dispute or to impede the due
course of legal proceedings.

  However, after the true facts and circumstances have been established,
judicial presumptions should be abandoned and replaced by proven facts.
A contrario, if a court of law stands by legal presumptions in preference
to proven facts, it maintains a judicial fiction, its own truth, in the face of
facts and situations in terms of law.

  The Court is doing exactly this by clinging to the assumption about the
Respondent’s jus standi, and the inextricably related issue of the Respon-
dent’s membership in the United Nations in the period 1992-2000.

452

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                                                          uA)
5. The effects of the 2004 Judgment

   47. The question of the Respondent’s United Nations membership as
determinative in regard to its jus standi before the Court, in the circum-
stances surrounding the issue, seems, considering its being of a status
nature, to have been solved by the Court’s Judgment in the Legality of
Use of Force cases in 2004. Also, the majority holds the view that the
FRY was admitted to the United Nations “as a new member in 2000”
(Judgment, para. 109). However, the Court has not drawn from that fact,
a fact of decisive jurisdictional significance in casu, necessary conse-
quences regarding the jus standi of the Respondent. The reason for this
has been found in the recognition of the Parties that these Judgments “do
not constitute res judicata for the purposes of the present proceedings”
(Judgment, para. 84). Two observations may be made in respect of this
determination of the effects of the 2004 Judgments. Primo, the question
of the effects of the Court’s judgments is a questio juris and, as such,
within the ambit of the principle of jura novit curia signifying that the
Court is not dependent on the agreement of the parties with respect to
the applicable law. Secundo, the effects of a judgment are not fully
exhausted by the rule of res judicata.

   48. It is hardly necessary to say that the Court’s Judgment of 15 Decem-
ber 2004 in the Legality of Use of Force cases does not produce the
effects of res judicata in the present case, given that one of the intrinsic
elements of the res judicata rule — eadem personae — is lacking. Bosnia
and Herzegovina was not a party in the Legality of Use of Force cases.
Consequently, it is not bound by the Court’s decision in those cases qua
decision.
   49. That is one point. The material effects of the 2004 Judgment on
the case at hand are another. It is clearly established in the jurisprudence
of the Court that the material effects of a decision of the Court are not
necessarily limited to the case decided and therefore may, depending on
circumstances, occasionally extend beyond it.

  In the Aegean Sea case the Court stated inter alia :
         “Although under Article 59 of the Statute ‘the decision of the
      Court has no binding force except between the parties and in respect
      of that particular case’, it is evident that any pronouncement of the
      Court as to the status of the 1928 [General Act for the Pacific Set-
      tlement of International Disputes], whether it were found to be a
      convention in force or to be no longer in force, may have implica-
      tions in relations between States other than Greece and Turkey
      [Parties to the present proceedings].” (I.C.J. Reports 1978, pp. 17-
      18, para. 39 ; emphasis added.)

453

493          APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                             uA)
A narrow interpretation of Article 59 simply does not fit into the corpus
of the Court’s law25.
   50. Accordingly, the real question in concreto is not whether there are
material effects of the 2004 Judgment on the case at hand, but “whether,
in this case, there is cause not to follow the reasoning and conclusions of
earlier cases” (Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J.
Reports 1998, para. 28), or to treat the 2004 Judgment “as a statement of
what the Court regarded as the correct legal position” (Temple of Preah
Vihear (Cambodia v. Thailand), Preliminary Objections, Judgment, I.C.J.
Reports 1961, p. 27) in the matter.

   51. It appears not only that such cause does not exist, but that there
are moreover several reasons why the Court should follow its earlier rea-
soning, which inevitably leads to the conclusions adapted by the Court in
its 2004 Judgment.

  First of all, the relevant issue — was the Respondent a member of the
United Nations at the material point in time and, as such, a party to the
Statute of the Court — in the identical form, followed by identical legal
consequences, is posed in both cases. The locus standi of Serbia and
Montenegro in the present proceedings is, exactly as in the Legality of
Use of Force cases, inextricably linked with membership in the
United Nations, owing to the fact that Serbia and Montenegro could
not be considered to be a party to the Statute on any basis other
than membership in the United Nations, the fact that its locus standi
cannot be based on the conditions set forth in Article 35, paragraph 2,
of the Statute. As a rule, a given factual state and legal status
occurring in two different cases demands equal treatment under

  25   “If it is true that a Judgment of the Court is clothed with authority of res judicata
       only in the case which has been decided, that would mean that if the lis concerns the
       interpretation of a clause of a treaty, the interpretation given could be used again in
       arguments in any future lis concerning the same clause of a treaty. Such a result
       would not only be absurd ; it would put Article 59 in irreconcilable contradiction with
       the last sentence of Article 63 of the same Statute, which provides that when a third
       state intervenes in a case in which there is in question the construction of a multilat-
       eral convention to which it and the States concerned in the case are parties, the con-
       struction given by the Court will be equally binding on that state.” (Lighthouses
       Arbitration (France v. Greece), Permanent Court of Arbitration, 23 ILR 81 at
       86 (1956).)

  Also, Judge Oda in his separate opinion in the Continental Shelf (Tunisia/Libyan Arab
Jamahiriya), Application for Permission to Intervene), I.C.J. Reports 1981, p. 30, para. 14 ;
Continental Shelf (Libyan Arab Jamahiriya/Malta), I.C.J. Reports 1984, dissenting
opinion of Judge Jennings, pp. 157-160 ; ibid., dissenting opinion of Vice-President Sette-
Camara, p. 87, para. 81 ; ibid., dissenting opinion of Judge Schwebel, p. 134, paras. 9-10).

454

494          APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                             uA)
the principles of consistency of judicial reasoning and equality before the
Court.

   Furthermore, the Court, by finding that “at the time of filing of its
Application to institute . . . proceedings before the Court on 29 April 1999,
the Applicant in the present case, Serbia and Montenegro, was not a
Member of the United Nations” (Legality of Use of Force (Serbia and
Montenegro v. Portugal), Preliminary Objections, Judgment, I.C.J.
Reports 2004, p. 1195, para. 90), basically took judicial notice of a fact
objectively established by the competent organs of the United Nations,
which in the context of the case operated as a jurisdictional fact of deci-
sive significance. United Nations General Assembly resolution 55/12 as
such has created an objective legal status which is erga omnes in charac-
ter. Even if we leave aside the binding force of resolution 55/12, that part
of the Judgment of the Court concerning the determination of the status
of Serbia and Montenegro vis-à-vis the United Nations in the relevant
period of time remains none the less, by its nature, a declaratory judg-
ment in rem producing conclusive effects at least as regards States parties
to the Statute of the Court. As such, the Judgment cannot, in that part,
be treated as a judgment in personam, having conclusive effects only
between the parties to the case, because its subject matter is the status of
Serbia and Montenegro both in relation to the United Nations itself and
in relation to the Members of the United Nations.

  52. Resolution 55/12 belongs to the species of United Nations General
Assembly resolutions having a definitive and binding effect within the
United Nations structure as a whole.
           “Article 18 [of the Charter] deals with ‘decisions’ of the General
        Assembly ‘on important questions’. These ‘decisions’ do indeed include
        certain recommendations, but others have dispositive force and effect.
        Among these latter decisions, Article 18 26 includes suspension of
        rights and privileges of membership, expulsion of Members . . . In
        connection with the suspension of rights and privileges of member-
        ship and expulsion from membership under Articles 5 and 6, it is the
        Security Council which has only the power to recommend and it is
        the General Assembly which decides and whose decision determines
        status.” (Certain Expenses of the United Nations (Article 17, Para-
        graph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962,
        p. 163 ; emphasis added.)

  26   Article 18 of the Charter reads :
         “2. Decisions of the General Assembly on important questions shall be made by a
       two-thirds majority of the members present and voting. These questions shall
       include : ... the admission of new Members to the United Nations, the suspension of
       the rights and privileges of membership, the expulsion of Members ...”

455

495       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                          uA)
   On the basis of Article 4, paragraph 2 of the Charter “The admission
of any . . . State to membership in the United Nations will be effected by
a decision of the General Assembly upon the recommendation of the
Security Council” (emphasis added).
   53. Lying within the exclusive competence of two principal political
organs of the United Nations, the Security Council and the General
Assembly, decisions on the admission of a State to the United Nations
are a part of international law which “[the Court] . . . is bound to
respect” (Questions of Interpretation and Application of the 1971 Mon-
treal Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of
14 April 1992, I.C.J. Reports 1992, separate opinion of Judge Lachs,
p. 26). In the system of functional parallelism, it must be assumed as a
governing principle of relations between the principal organs of the
United Nations that the “Court must co-operate in the attainment of the
aims of the Organization and strive to give effect to the decisions of other
principal organs and not to achieve results which would render them
nugatory” 27.
   The determination that the Respondent enjoyed the status of member
as from 1 November 2004 became a part of the objective reality estab-
lished in the United Nations structures as a whole. In a letter to the Presi-
dent of the United Nations General Assembly, dated 27 December 2001,
United Nations Secretary-General Kofi Annan stated :

        “I have the honour to refer to General Assembly resolution 55/12
      of 1 November 2000, in which the Assembly decided to admit the
      Federal Republic of Yugoslavia to membership in the United
      Nations. This decision necessarily and automatically terminated the
      membership in the Organization of the former Yugoslavia, the State
      admitted to membership in 1945.” 28
  Under the heading “Historical Information on Multilateral Treaties
Deposited with the Secretary-General” 29, it is stated expressis verbis that
the “Yugoslavia” to which the Legal Counsel referred in his letter of
29 September 1992 as the State whose membership in the Organization
“the resolution neither terminates nor suspends”, was the former
Yugoslavia, i.e., the Socialist Federal Republic of Yugoslavia, not the
Federal Republic of Yugoslavia : “The Legal Counsel took the view,
however, that this resolution of the General Assembly neither terminated
nor suspended the membership of the former Yugoslavia in the United
Nations.”

  27 Shabtai Rosenne, The Law and Practice of the International Court, 1920-2005, 3rd

ed., Vol. I, The Court and the United Nations, 1997, pp. 69-70.
  28 United Nations doc. A/56/767 ; emphasis added.
  29 See Historical Information, http ://untreaty.un.org/ENGLISH/bible/englishinternet-

bible/historicalinfo.asp under the heading “former Yugoslavia”.

456

496        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                           uA)
   It is also relevant that no State has objected to the legal opinion of the
United Nations Legal Counsel referred to above, in contrast to the posi-
tion of United Nations Member States with respect to the description of
the Federal Republic of Yugoslavia as a predecessor State made in the
“Summary of Practice of the Secretary-General as depositary of Multi-
lateral Treaties” 30 ; in response to the objections raised, the Legal Coun-
sel issued “Errata” 31 which, inter alia, deleted the description of the Fed-
eral Republic of Yugoslavia as a predecessor State.

   54. This fact taken per se evidences universal acceptance both by the
Member States of the United Nations and by the organs of the Organiza-
tion of the legal consequences of the admission of the Federal Republic
of Yugoslavia to membership of the United Nations. The Court summa-
rized these as follows :
         “The Applicant [Serbia and Montenegro] thus has the status of
       membership in the United Nations as from 1 November 2000. How-
       ever, its admission to the United Nations did not have, and could
       not have had, the effect of dating back to the time when the Socialist
       Federal Republic of Yugoslavia broke up and disappeared ; there
       was in 2000 no question of restoring the membership rights of the
       Socialist Federal Republic of Yugoslavia for the benefit of the Fed-
       eral Republic of Yugoslavia.” (Legality of Use of Force (Serbia and
       Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J.
       Reports 2004, p. 310, para. 78.)

  55. This interpretation of the meaning of resolution 47/1 is not a new
one. It should be noted that it was advocated in the literature as well. In
an article entitled “The New United Nations and Former Yugoslavia”,
Professor Rosalyn Higgins wrote :
         “The Assembly did recommend that the new Federal Republic
       (Serbia-Montenegro) should apply for membership of the United
       Nations. But the resolution did not either suspend, or terminate,
       Yugoslavia’s membership in the UN. The outcome has been anoma-
       lous in the extreme. The seat and nameplate remain as before. The
       old Yugoslav flag continues to fly on the 42nd Street. ‘Yugoslavia
       remains a member of the UN, i.e., not Serbia and Montenegro, but
       Yugoslavia in its entirety.’ ” 32

   56. Although it limited itself in the dispositif to the determination of
its jurisdiction to entertain the case, the Court essentially dealt, in the

  30 ST/LEG.8, p. 89, para. 297.
  31 United Nations doc. LA41TR/220.
  32 69 International Affairs, 1993, p. 479 ; emphasis added.

457

497         APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                            uA)
reasoning part of the 2004 Judgment, with the question of the Federal
Republic of Yugoslavia’s membership in the United Nations in the rele-
vant time period. The Court’s finding that the Federal Republic of Yugo-
slavia was not a member of the United Nations before its admission to
the Organization in November 2000 was of fundamental importance in
the circumstances surrounding the issue of the Court’s competence in
casu.
   57. The dispositif in the 2004 Judgment was not the result of the rea-
soning by the Court in selecting among alternatives or choosing one of
several different interpretations for which the relevant jurisdictional fact
would provide a motive ; it was the unavoidable result of the Federal
Republic of Yugoslavia’s non-membership status in the United Nations
or, in other words, a kind of judicial notice of the fact established by the
principal political organs in the exercise of their exclusive competence
under the United Nations Charter, which, in the circumstances of the
present case, operates as the jurisdictional fact of decisive importance.

   Resolutions of the United Nations General Assembly, like resolu-
tion 55/12, create an objective legal situation, a status with erga omnes
effects. This fact is reflected in the effects of the Judgments of the Court
by which such a status is established ad casum.
   58. Judgments of the Court on the status issue, in their effect ratione
personae, cannot, unlike other judgments, be limited to the Parties to a
dispute. Their material effects surpass the effects of the judgment defined
in Article 60 of the Statute. By the very nature of their object, judgments
on status issues, which do not allow for uncertainty and insecurity, act
intra partes. The effect of a judgment on status, i.e., the creation of an
objective legal situation (situation légale objective) 33, is incorporated in
the national laws of civilized nations 34.

   However, this is not a question of the technical effect, under Article 59
of the Statute, of judgments on status issues intra partes but a question of
the material, reflective effect of such judgments on third States. It is bind-
ing erga omnes not as a judicial act in the formal sense, but as a result of
its intrinsic persuasive force, in parallel with the mandatory force of the
judgment in the technical sense, based on the presumption of truthful-
ness — pro veritate accipitur — which must, in questions of status, as
absolute law, have universal effect. This is especially valid for judgments
of the Court, like the Judgment in the Legality of Use of Force cases,

  33 Dugguit, Traité de droit constitutionnel, 1923, Vol. II.
  34 For instance, the novel Article 311 of the Code civil (law of 1972), see Vincent,
op. cit., p. 108, No. 79 ; in Italian law it is traditionally considered that decisions on status
matters act erga omnes — for examples of judgments by Italian courts, see Pugliese,
op. cit., p. 888 ; British law has, in that sense, the special notion “judgments in rem” (see
Bower, Turner and Handley, “The Doctrine of Res Judicata”, 1965, pp. 213 et seq.).

458

498       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                          uA)
which, basically, merely gives judicial confirmation to the status conclu-
sively determined by the competent organs of the United Nations (see
Judgment, paras. 88 et seq.).

   59. It seems crystal clear that the Respondent’s jus standi in casu
is, as in the Legality of Use of Force cases, organically linked
to its membership in the United Nations owing to the fact that
the Respondent could not be considered to be a party to the Statute
on any basis apart from that of being a Member State of the United
Nations and to the fact that its jus standi cannot be based on the
conditions set forth in Article 35, paragraph 2, of the Statute of the
Court.
   The majority approach to this “twin” issue is truly astonishing.

  On the one hand, it is recognized that “in 1999 — and even more so in
1996 — it was by no means so clear as the Court found it to be in 2004
that the Respondent was not a Member of the United Nations” (Judg-
ment, para. 131 ; emphasis added).

  On the other,
      “as a matter of law, no possibility that the Court might render ‘its
      final decision with respect to a party over which it cannot exercise
      its judicial function’, because the question whether a State is or is
      not a party subject to the jurisdiction of the Court is one which is
      reserved for the sole and authoritative decision of the Court . . . the
      operation of the ‘mandatory requirements of the Statute’ falls to be
      determined by the Court in each case before it ; and once the
      Court has determined, with the force of res judicata, that it has
      jurisdiction, then for the purposes of that case no question of ultra
      vires action can arise, the Court having sole competence to
      determine such matters under the Statute” (Judgment, paras. 138
      and 139).
   The reasoning suggests that quidquid judicii placuit, habet legis vig-
orem. It reflects the anachronistic and totally unacceptable idea that the
Court is not the guardian but the creator of legality and, in fact, that the
Court makes decisions independently from objective law established by
its Statute.
   It nolens volens leads to the creation of the Court’s own, judicial reality
in contrast to the objective legal one, producing a proper judicium illu-
sorum.
   The erroneous perception of the res judicata rule embodied in this
Judgment gives rise to an absurd ambivalence in respect of the Respon-
dent’s status in the United Nations.

   In contrast to the erga omnes effects of General Assembly resolu-
tion 55/12, the Court’s Judgment is, as provided by Article 59 of the Stat-

459

499      APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                         uA)
ute, binding only on the Parties to the case. This logically means that in
the context of the dispute before the Court the Respondent is considered,
at least tacitly, to have been a United Nations member in the period
1992-2000 as far as the Court and the Applicant are concerned, whereas
for the Organisation itself it was not a member and even for Bosnia and
Herzegovina, it was not a member in respect of any other matter than
this case itself. In addition, in the eyes of the Court, the Respondent is
considered a member of the United Nations in the present case and a
non-member in the Legality of Use of Force cases.

   60. The pronouncement that “in 1999 — and even more so in 1996 —
it was by no means so clear then as the Court found it to be in 2004 that
the Respondent was not a Member of the United Nations”, opens a very
unpleasant question of the activity of the Court in the present case in the
light of the principle of bona fidae which, as a peremptory one, is at least
equally valid for the Court as it is for States.

   If, for more than a decade, it was so clear to the Court that the
Respondent was not a Member of the United Nations, and the quality of
being a Member of the United Nations is the only basis on which the
Respondent could have been considered a party to the Statute
of the Court, it follows that the Court deliberately avoided
recognizing the jurisdictional fact affecting the very legality of the
totality of its actions in casu. Such a conduct of the Court could be
termed judicial arbitrariness, close or in the zone of abuse of judicial
power of the Court rather than judicial discretion resulting in judicial
indecision.

6. 1992 Declaration

   61. In its 1996 Judgment, the Court found jurisdiction ratione perso-
nae in the formal Declaration of 27 April 1992 adopted by the partici-
pants of the Joint Session of the SFRY Assembly, the National Assembly
of the Republic of Serbia and the Assembly of the Republic of Montene-
gro. The Court perceived it as a unilateral act that produces legal conse-
quences relevant as regards its jurisdiction ratione personae. This deter-
mination appears dubious and, it seems to me, requires reconsideration
in the light of the relevant rules of international law and the jurispru-
dence of the Court, respectively. Namely, reconsideration not only as
regards the presumption of the legal identity and continuity of the
Respondent with the SFRY, which proved unacceptable by the interna-
tional community and served as the basis for the finding of the Court, but
also as regards the characterization of the nature and effects of the
Declaration.

460

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                                                           uA)
   62. Did the Declaration adopted on 27 April 1992 meet the relevant
requirements to be considered as a unilateral act producing legal conse-
quences ?
   63. It seems obvious that the issue of an act by a single state cannot by
itself qualify as a unilateral act capable of producing legal effects in foro
externo. The unilateral nature of an act is but one extrinsic element
which, when coupled with other elements, both extrinsic and intrinsic,
forms a unilateral legal act in terms of international law.

   64. In the circumstances of the case at hand a number of elements are
of special relevance. The primary extrinsic element concerns the capacity
of the participants in the Joint Session of the SFRY Assembly, the
National Assembly of the Republic of Serbia and the Assembly of the
Republic of Montenegro to perform unilateral acts in the sense of inter-
national law. The Joint Session of the SFRY Assembly, the National
Assembly of the Republic of Serbia and the Assembly of the Republic of
Montenegro was not constituted as the Parliament of the Federal Repub-
lic of Yugoslavia ; rather it was a body of representatives in statu nas-
cendi. Even if, arguendo, it represented the Parliament, it was obviously
not a State organ possessing the capacity to perform unilateral acts on
behalf of the State. Representatives of a State for purposes of formulat-
ing unilateral legal acts are heads of State, heads of Government and
ministers of foreign affairs 35. The rule has also been confirmed in the
jurisprudence of the Court (Legal Status of Eastern Greenland, Judg-
ment, 1933, P.C.I.J., Series A/B, No. 53, p. 22). Consequently, it appears
that the Declaration, if designed as a unilateral legal act in foro externo,
was issued by an incompetent organ under international law and, as
such, produced no legal effects 36.

   65. True, the Declaration, as the Court found, “was confirmed in an
official Note of 27 April 1992 from the Permanent Mission of Yugoslavia
to the United Nations, addressed to the Secretary-General.” (I.C.J.
Reports 1996 (II), p. 610, para. 17) The word “confirmed” in the present
context may have two meanings : a descriptive one in the sense that the
letter from the Permanent Representative reproduced the text of the Dec-
laration and a meaning as a “terminus technicus”, signifying confirma-
tion of a unilateral act of an unauthorized State organ. Neither of these
two possible meanings of the word “confirmed” can be accepted in con-

   35 Art. 4, Report on Unilateral Acts of States, Yearbook of the International Law Com-

mission (YILC), 1998, II, Part One, doc. A/CN.4/486 ; United Nations doc. A/CN.4/500
and Add.1.
   36 See Article 4 (Subsequent confirmation of an act formulated by a person not author-

ized for that purpose) in the Third Report of the Special Rapporteur, YILC, 2000, I,
p. 96.

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501          APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                             uA)
creto. In respect of the descriptive meaning of the word “confirmed”, it is
obvious that the letter from the Permanent Representative 37 reproduces
the text of the Declaration only in part, i.e., citing only a small part
thereof relating exclusively to legal identity and continuity.
   By definition, the limited powers held by heads of permanent missions
to international organizations, including permanent missions to the
United Nations, negate the possibility of the official Note of the Perma-
nent Mission of Yugoslavia of 27 April 1992 being understood as “con-
firmation” of an act issued by an organ — if at the material point in time
it was an organ — incompetent under international law to perform legal
acts on behalf of the State.

   66. Hence, the proper characterization of the Note of the Yugoslav
Permanent Mission of 27 April 1992 is that of a transmission of the Dec-
laration followed by the corresponding reproduction of a part of the
Declaration directly connected with the Federal Republic of Yugoslavia’s
proclaimed legal identity with and continuation of the former SFRY vis-
à-vis the United Nations.
   67. This characterization of the Note of the Yugoslav Permanent Mis-
sion suggests that the Declaration of 27 April 1992 and the Note of the
Permanent Mission are two distinct, yet not totally separate, acts, both
by their nature and by their effects. For its part, the Declaration is basi-
cally a general statement of policy with respect to matters directly or indi-
rectly connected with the issue of the proclaimed legal identity and State
continuity of the Federal Republic of Yugoslavia, while the Note seems
to be primarily a notification in the standard sense. Evidence to this effect
is found in the fact that the addressee of the Note was the Secretary-
General, who was requested to circulate the Declaration and the Note as
an official document of the General Assembly 38, whereas the Declaration
as such was addressed urbi et orbi.

  37   The text of the letter reads :
          “The Assembly of the Socialist Federal Republic of Yugoslavia, at its session held
       on 27 April 1992, promulgated the Constitution of the Federal Republic of Yugosla-
       via. Under the Constitution, on the basis of the continuing personality of Yugoslavia
       and the legitimate decisions by Serbia and Montenegro to continue to live together
       in Yugoslavia, the Socialist Federal Republic of Yugoslavia, consisting of the
       Republic of Serbia and the Republic of Montenegro. Strictly respecting the
       continuity of the international personality of Yugoslavia, the Federal Republic of
       Yugoslavia shall continue to fulfil all the rights conferred to, and obligations
       assumed by, the Socialist Federal Republic of Yugoslavia in international relations,
       including its membership in all international organizations and participation in
       international treaties ratified or acceded to by Yugoslavia.” (United Nations
       doc. A/46/915, Ann. I.)

  38   United Nations doc. A/46/915.

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502       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                          uA)
  68. Several intrinsic elements of the Declaration merit attention in this
particular context : its scope ratione materiae, the intention of the author
of the Declaration and its possible effects.
  69. As regards its scope ratione materiae, the Declaration covers sev-
eral different matters.
  The Declaration reads as follows :
         “The representatives of the people of the Republic of Serbia and
      the Republic of Montenegro,
         Expressing the will of the citizens of their respective Republics to
      stay in the common state of Yugoslavia,
         Accepting all basic principles of the Charter of the United
      Nations and the CSCE Helsinki Final Act and the Paris Charter,
      and particularly the principles of parliamentary democracy,
      market economy and respect for human rights and the
      rights of national minorities,

         Remaining strictly committed to a peaceful resolution of the Yugo-
      slav crisis,
         Wish to state in this Declaration their views on the basic, imme-
      diate and lasting objectives of the policy of their common state, and
      on its relations with the former Yugoslav Republics.
         In that regard, the representatives of the people of the Republic of
      Serbia and the Republic of Montenegro declare :
      1. The Federal Republic of Yugoslavia, continuing the state, inter-
          national legal and political personality of the Socialist Federal
          Republic of Yugoslavia, shall strictly abide by all the commit-
          ments that the SFR of Yugoslavia assumed internationally.

            At the same time, it is ready to fully respect the rights and
         interests of the Yugoslav Republics which declared independ-
         ence. The recognition of the newly-formed States will follow after
         all the outstanding questions negotiated on within the Confer-
         ence on Yugoslavia have been settled,

            Remaining bound by all obligations to international organiza-
         tions and institutions whose member it is, the Federal
         Republic of Yugoslavia shall not obstruct the newly-formed
         States to join these organizations and institutions,
         particularly the United Nations and its specialized agencies.
         The Federal Republic of Yugoslavia shall respect and
         fulfil the rights and obligations the SFR of Yugoslavia
         assumed vis-à-vis the territories of Krajina which have
         been placed, within the framework of the United Nations
         peace-keeping operation, under the protection of the world
         Organization.

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            The Federal Republic of Yugoslavia also remains ready to
         negotiate, within the Conference on Yugoslavia, all problems
         related to the division of assets, which means both to assets and
         debts acquired jointly. In case of a dispute regarding these issues,
         the Federal Republic of Yugoslavia shall be ready to accept the
         arbitration of the Permanent Court of Arbitration in the Hague.
      2. The diplomatic and consular missions of the Federal Republic of
         Yugoslavia abroad shall continue without interruption to per-
         form their functions of representing and protecting the interests
         of Yugoslavia. Until further notice, they shall continue to take
         care of all the assets of Yugoslavia abroad. They shall also extend
         consular protection to all nationals of the SFR of Yugoslavia
         whenever they request them to do so until a final regulation of
         their nationality status. The Federal Republic of Yugoslavia rec-
         ognizes, at the same time, the full continuity of the representation
         of foreign states by their diplomatic and consular missions in its
         territory.

      3. The Federal Republic of Yugoslavia is interested in the reinstate-
         ment of economic, transport, energy and other flows and ties in
         the territory of the SFR of Yugoslavia. It is ready to make its full
         contribution to that end.

      4. The Federal Republic of Yugoslavia has no territorial aspirations
         towards any of its neighbours. Respecting the objectives and
         principles of the United Nations Charter and CSCE documents,
         it remains strictly committed to the principle of nonuse of force in
         settling any outstanding issues.
      5. The Federal Republic of Yugoslavia shall ensure the highest
         standards of the protection of human rights and the rights of
         national minorities provided for in international legal instru-
         ments and CSCE documents. In addition, the Federal Republic
         of Yugoslavia is ready to grant the national minorities in its ter-
         ritory all those rights which would be recognized to and enjoyed
         by the national minorities in other CSCE participating States.

      6. In its foreign relations, the Federal Republic of Yugoslavia shall
         be guided by the principles of the United Nations Charter, as well
         as the principles of CSCE documents, particularly the Paris Char-
         ter for New Europe. As the founding member of the Movement
         of non-aligned countries, it shall remain committed to the prin-
         ciples and objectives of the policy of nonalignment.

            It shall develop relations of confidence and understanding with
         its neighbours proceeding from the principle of good neighbour-

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          liness. The Federal Republic of Yugoslavia shall, as a State of
          free citizens, be guided in its democratic development by the
          standards and achievements of the Council of Europe, the Euro-
          pean Community and other European institutions, with an ori-
          entation to join them in the foreseeable future.” (United Nations
          doc. A/46/915, Ann. I ; emphasis added.)
   It appears that, if viewed in isolation, only a part of the Declaration —
the extension of “consular protection to all nationals of the SFR of
Yugoslavia” — is capable per se of producing, certain effects, under cer-
tain conditions. Although not addressed to third States, it can, in a
broader context, be subsumed under the “power of auto-limitation which
States enjoyed under international law, in other words, their ability in the
exercise of their sovereignty to subject themselves to international legal
obligations” 39.

   In the part of the Declaration concerning “commitments that the
SFRY assumed internationally”, which is relevant for the assessment as
to whether the Federal Republic of Yugoslavia could be considered
bound by the Genocide Convention, things are, however, fundamentally
different.

   70. Can the formulation “shall strictly abide by all the commit-
ments . . .” as such be understood as consent by the Federal Republic of
Yugoslavia to be bound by the Genocide Convention? That interpreta-
tion appears totally erroneous in the light of the rule of interpretation of
unilateral legal acts accepted in the Court’s jurisprudence. Where uni-
lateral acts of States are to be interpreted, “declarations . . . are to be
read as a whole” and “interpreted as a unity” (Fisheries Jurisdiction
(Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports
1998, pp. 452-454, paras. 47 and 44). Further, unilateral acts “must be
interpreted as [they stand], having regard to the words actually used.”
(Anglo-Iranian Oil Co., Preliminary Objection, Judgment, I.C.J. Reports
1952, p. 105).

   The intention of the author of the Declaration is of key concern, since
“[w]hen it is the intention of the State making the declaration that it
should become bound according to its terms, that intention confers on the
declaration the character of a legal undertaking” (Nuclear Tests (Aus-
tralia v. France, Judgment, I.C.J. Reports 1974, p. 267, para. 43 ; Nuclear
Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 472,
para. 46 ; Frontier Dispute, Judgment, I.C.J. Reports 1986, pp. 573-574,
paras. 39-40 ; emphasis added). When States “make statements by which
their freedom of action is to be limited, a restrictive interpretation is

 39   V. Rodrigues Cedeno, Special Rapporteur, YILC, 1998, II, Part Two, p. 53, para. 140.

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called for” (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports
1974, p. 267, para. 44 ; Nuclear Tests (New Zealand v. France), Judg-
ment, I.C.J. Reports 1974, pp. 472-473, para. 47 ; emphasis added).
   71. In the light of the rules of construction of unilateral legal acts, the
question naturally arises whether the Federal Republic of Yugoslavia
had the intention to assume obligations ex foro externo by the Declara-
tion.
   72. If the Declaration is read as a whole and interpreted as a unity, the
answer must, it seems, be in the negative. It is set out in the introduction
part that the participants in the Joint Session of the SFRY Assembly, the
National Assembly of the Republic of Serbia and the Assembly of the
Republic of Montenegro “wish to state in this Declaration their views on
the basic, immediate and lasting objectives of the policy of their common
state and its relations with the former Yugoslav Republics” (emphasis
added). Statements of policy objectives are rarely found in the sphere of
international law. In the Nicaragua case the Court, considering the issue
as to whether any legal undertaking could be inferred from communica-
tions from the Junta of the Government of National Reconstruction of
Nicaragua to the Secretary-General of the Organization of American
States accompanied by the “Plan to secure peace”, found inter alia :

         “This was an essentially political pledge, made not only to the
      Organization, but also to the people of Nicaragua, intended to be its
      first beneficiaries. . . . This part of the resolution is a mere statement
      which does not comprise any formal offer which if accepted would
      constitute a promise in law, and hence a legal obligation.” (Military
      and Paramilitary Activities in and against Nicaragua (Nicaragua v.
      United States of America), Merits, Judgment, I.C.J. Reports 1986,
      p. 132, para. 261 ; emphasis added.)

Furthermore, if, ex hypothesi, the participants had intended the Declara-
tion to produce legal effects, these effects would have been expressed as
the confirmation or safeguarding of existing rights and obligations rather
than as the assumption of obligations pro futuro. The interpretation of
the Declaration “according to its own terms” “as they stand” inevitably
leads to the conclusion, as also inferred by the Court itself, that the inten-
tion was “to remain bound by international treaties to which the former
Yugoslavia was a party” (I.C.J. Reports 1996, p. 610, para. 17 ; emphasis
added). And that pursuant to both legal considerations and the Declara-
tion itself means the Federal Republic of Yugoslavia’s legal identity and
continuity with the former SFRY. If, on the other hand, legal identity
and continuity was a condition on which depended the status of the Fed-
eral Republic of Yugoslavia as a party to multilateral conventions,
including the Genocide Convention, another highly relevant question
emerges : namely, is the Declaration as such capable of producing legal

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effects without having been accepted, expressly or tacitly, by other inter-
national subjects, including the United Nations ?

   Obviously not, because declarations, like other unilateral acts, used to
carry out obligations in relation to treaties, are governed by the law of
treaties as applied to the particular convention. In general, unilateral
legal acts as such, being self-contained, are not in the nature of synallag-
matic obligations which form the substance of treaties.

  73. The Convention on the Prevention and Punishment of the Crime
of Genocide (1948) stipulates in Article XI :

        “The present Convention shall be open until 31 December 1949
      for signature on behalf of any Member of the United Nations and of
      any non-member State to which an invitation to sign has been
      addressed by the General Assembly.
        The present Convention shall be ratified, and the instruments of
      ratification shall be deposited with the Secretary-General of the
      United Nations.
        After 1 January 1950, the present Convention may be acceded
      to on behalf of any Member of the United Nations and of
      any non-member State which has received an invitation as
      aforesaid.
        Instruments of accession shall be deposited with the Secretary-
      General of the United Nations.”

  It would appear that ratification and accession are the sole means of
expressing consent to be bound by the Convention. Article XI expresses
the intention of the authors of the Convention :

         “The Secretariat’s draft provided as an alternative solution acces-
      sions only, on the theory that the approval of the Convention by the
      representatives of the governments in the General Assembly may
      obviate the necessity for signature. The ad hoc Committee, however,
      preferred the usual procedure of signature followed by ratification,
      for the original members.” 40

  74. It appears that the Court in addition strongly relied on the finding
that : “it has not been contested that Yugoslavia was party to the
Genocide Convention” (I.C.J. Reports 1996, p. 610, para. 17).
However, that finding does not seem convincing in the light
of the legal nature of the issue of jurisdiction (see paras. 41-44
above).

 40   N. Robinson, The Genocide Convention, 1949, p. 47.

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7. The issue of the respondent Party
  Serbia has been designated as the respondent Party on the basis of two
premises :
 (i) the status of Serbia as the continuing State vis-à-vis the State Union
     of Serbia and Montenegro ; and
(ii) the view that the Republic of Montenegro as the successor State is
     ipso facto relinquished of any form of delictual responsibility.
However, neither one of these two premises has been applied consist-
ently.
   As regards the first premise, it seems clear that Serbia is the legal con-
tinuator of the State Union of Serbia/Montenegro. A delicate question,
not even touched upon by the Judgment, is that of the legal status of Ser-
bia and Montenegro from 2000 onwards.

  75. At the end of the year 2000 the FRY, acting in the appropriate
context, did two things :
 (i) renounced the continuity claim and accepted the status of successor
     State to the former SFRY ; and
(ii) proceeding on the bases of this new capacity — as the successor
     State — submitted an application for admission to membership in
     the United Nations.
 76. The State, as a notion of international law, comprises two ele-
ments, i.e., has two facets :
 (i) statehood in the sense of the relevant attributes such as a defined ter-
     ritory, a stable population and sovereign power ;
(ii) legal personality, i.e., status as a subject of international law equipped
     with a corpus of rights and obligations. In the light of the relevant
     circumstances, the legal personality of the Federal Republic of Yugo-
     slavia can be either inferential and derivative in nature — based on
     legal identity with and continuation of the Socialist Federal Republic
     of Yugoslavia — or inherent and original in nature — based on
     status as a new State.
   77. By submitting an application for admission to membership in the
United Nations, Yugoslavia not only renounced the claim to legal iden-
tity and continuity ; it sought at the same time to be recognized as a new
State, one with a different legal personality — a successor State as
opposed to the partial continuation of the former Socialist Federal
Republic of Yugoslavia — from the one claimed until the year 2000. In
fact, it accepted the claim qualified as the claim put forward by the inter-
national community when the Federal Republic of Yugoslavia was for-
mally proclaimed in April 1992. A claim which the relevant international
organizations and States, acting individually or in corpore as members of
organizations, did not however implement either formally or substan-
tively. Instead, they opted for solutions based on pragmatic political con-

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siderations rather than on considerations under international law. Thus
arose a legal “Rashomon” as to Yugoslavia’s juristic character — was it
a new State or the old State ? And as to its status in the United Nations —
was it a Member of the United Nations or not ?

   78. Yugoslavia’s admission to membership of the United Nations
from 1 November 2000 also meant acceptance of its claim to recognition
as a new State, in the sense of a new international personality different
from its controversial, hybrid personality in the period 1992-2000. The
claim was accepted by way of a series of collateral agreements in simpli-
fied form, or a general collateral agreement in simplified form, between
the Federal Republic of Yugoslavia, on the one hand, and the Member
States of the United Nations and the world Organization itself, on the
other, embodied tacitly in the letter and spirit of General Assembly reso-
lution 55/12 and subsequent consistent practice of the Organization
(exempli causa, the letter of the Under-Secretary-General and Legal
Counsel of the United Nations of 8 December 2000 and the list of Mem-
ber States with the dates of their admission to the United Nations
(United Nations Press Release ORG/1317 updated 18 December 2000).
The subject of the series of collateral agreements, or of the general col-
lateral agreement, is in fact recognition of the Federal Republic of Yugo-
slavia as a new personality, a personality being the successor State of the
former SFRY, and its admission in that capacity to the world Organiza-
tion as a Member. Thus, Yugoslavia, although the “old State” in the
statehood sense, was universally recognized as a “new State” in the sense
of its international legal personality. In view of the fact that recognition
of a State has ex definitione retroactive effect, it necessarily follows that
all pronouncements and decisions taken relate to the FRY claiming con-
tinuity with the SFRY. And, as the Federal Republic of Yugoslavia after
the year 2000, its legal existence as a new international legal personality
started in November 2000 with its admission to membership of the
United Nations.

   The second premise, on the other hand, has not been consistently fol-
lowed in relation to the Republic of Montenegro. It has been applied to
parts of the Judgment, but not to the Judgment as a whole. Thus, the
Republic of Montenegro must immediately take effective steps to ensure
full compliance with its obligation under Articles I and VI of the Conven-
tion on the Prevention and Punishment of the Crime of Genocide to pun-
ish acts of genocide as defined by Article II of the Convention, or any of
the other acts proscribed by Article III of the Convention, and to transfer
individuals accused of genocide or any of those other acts for trial by the
International Criminal Tribunal for the former Yugoslavia, and to co-
operate fully with the Tribunal. Incidentally, this fact, too, could be taken

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as evidence of oversensitivity to the factual and political aspect of the
whole matter.

                          PART II. SUBSTANTIVE ISSUES

                 I. Genocide Convention as Applicable Law

1. Genocidal intent as conditio sine qua non of the crime of genocide

   79. A genocidal act can exist only under conditions defined by the
body of law established by the Convention. Acts enumerated in Arti-
cle II, in subparagraphs (a) to (e), are not genocidal acts in themselves,
but only the physical or material expression of specific, genocidal intent.
In the absence of a direct nexus with genocidal intent, acts enumerated in
Article II of the Convention are simply punishable acts falling within the
purview of other crimes, exempli causa war crimes or crimes against
humanity.

   80. Genocide as a distinct crime is characterized by the subjective ele-
ment — intent to destroy a national, ethnical, racial and religious group
as such — an element which represents the differentia specifica distin-
guishing genocide from other international crimes with which it shares
substantially the same objective element 41. In the absence of that intent,
whatever the degree of atrocity of an act and however similar it might be
to the acts referred to in the Convention, that act can still not be called
genocide 42.
   81. It appears that four elements are distinguishable within genocidal
intent : (a) the degree of the intent ; (b) destruction ; (c) a national, eth-
nical, racial or religious group ; (d) in whole or in part.
   Although separate, the four elements make up a legal whole character-
izing in their cumulative effect, genocidal intent as the subjective element
of the crime of genocide. The absence of any of them disqualifies the
intent from being genocidal in nature. As a legal unity, these elements,
taken in corpore, demonstrate that genocidal intent is not merely some-
thing added to physical acts capable of destroying a group of people. It is
an integral, permeating quality of these acts taken individually, a quality
that transforms them from simple punishable acts into genocidal acts. In

   41 N. Robinson, The Genocide Convention, 1949, p. 15 ; Drost, Genocide, II, 1959,

p. 82 ; Study of the Question of the Prevention and Punishment of the Crime of Genocide,
prepared by N. Ruhashyankiko, Special Rapporteur, doc. E/CN.4, Sub.2/416, 4 July 1978,
para. 96 ; Revised and Updated Report on the Question of the Prevention and Punishment
of the Crime of Genocide, prepared by Mr. B. Whitaker, doc. E/CN.4/Sub.2/1985/6
(2 July 1985), paras. 38-39.
   42 Official Records of the General Assembly, Third Session, Part I, Sixth Committee,

69th meeting.

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other words, such intent is a qualitative feature of genocide distinguish-
ing it from all other crimes, indeed its constituent element stricto sensu.

   82. Genocidal intent is genuine in nature. It is not simply a guilty
mind, but a mind guilty of destruction of a religious, ethnic, national or
racial group as such. The distinguishing feature of genocidal intent is not
that it is discriminatory because that is only its most general character-
istic shared with, for instance, crimes against humanity. But, whereas in
the case of persecution, an act of crime against humanity, discriminatory
intent can take multifarious inhumane forms and manifest itself in a mul-
tiplicity of actions, including murder, in the case of genocide, an extreme
and the most inhumane form of persecution, that intent must be accom-
panied by the particular intent to destroy in whole or in part the group to
which the victims belong 43. “Mens rea” in the realm of the crime of geno-
cide is complex and must not be reduced to the standard form of mens
rea required for criminal offences. It encompasses two levels — the mens
rea as the pendant to the actus reus, i.e., an act constituting genocide
pursuant to Article II (subparas. (a), (b), (c), (d) or (e)) and the
“intent to destroy” a protected group as such, the specific intent
inherent in genocide. It is therefore rightly stressed that “guaranteeing
the rule of law and the respect for the principle nullum crimen sine lege
require that ‘the two intents’ ought to be strictly separated when it
comes to prove the facts necessary to establish the innocence or guilt
of an accused” 44. In addition, both parts of mens rea are
characterized by the existence of two components — conscience
(la conscience ; Wissen) and will (la volonté ; Wollen). In their various
expressions they offer four different kinds of mens rea, in descending
order of seriousness — dolus specialis, dolus directus, dolus
indirectus (indirect intent) and dolus eventualis (conditional intent),
which, in general terms, correspond to intention, recklessness and
criminal negligence in the common law). Mens rea as the pendant
to the acts constituting the material element — the actus reus — of
the crime should exist in the form of dolus directus. This means
that the perpetrator is conscious of the effect of the act (intellectual
element) and has the will to commit the act (voluntary or emotional
element).

2. Degree of intent
  83. In terms of degree, the intent to destroy the group, as dolus

  43 ICTY, Prosecutor v. Kupreškić, Trial Judgment, para. 636.
  44 Triffterer, “Genocide, Its Particular Intent to Destroy in Whole or in Part the Group
as Such”, Leiden Journal of International Law, Vol. 14, No. 2, 2001, p. 400.

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511          APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
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specialis, is at the very top of the hierarchy of culpable mental
states. As such, it excludes culpa, dolus eventualis (recklessness) or
negligence 45. The crime of genocide is “unique because of its element of
dolus specialis (special intent)” 46, which is in fact the constituent
element of the crime of genocide. The degree of dolus specialis means
that it is not sufficient that the accused “knows that his acts will
inevitably, or . . . probably, result in the destruction of the group
in question, but that the accused must seek the destruction in whole or
in part, of a . . . group” 47.

   In other words, special intent is characterized by the voluntary ele-
ment, the purposeful and active will to destroy the protected group.
Knowledge of the natural and foreseeable consequences of the acts
performed is not per se sufficient to constitute the intent to destroy.
It must be accompanied by the desire to destroy the groups ; this is an
additional requirement in the structural sense and a dominant one in the
normative sense. In order for these to be genocide the acts prohibited in
Article II of the Convention must be committed with “intent to destroy,
in whole or in part, a national, ethnical, racial or religious group,
as such”.

3. Destruction

  84. Under Article II of the Convention, the expression “to destroy”
means the material (physical and biological) type of genocide. Physical
genocide is addressed in subparagraphs (a), (b) and (c), whereas bio-
logical genocide is covered by subparagraph (d).
  In subparagraphs (a) and (c) the matter seems self-evident. Whereas
the act of killing is a clear modus operandi of physical genocide 48, the
expression “physical destruction” employed in subparagraph (c) rules
out the possibility of any interpretation to the effect that infliction on the
group of any conditions of life other than those leading to the physical
destruction of the group may represent an act of genocide. The word
“deliberately” was included there to denote a precise intention, i.e., pre-
meditation related to the creation of certain conditions of life 49. Accord-
ing to the travaux préparatoires, such acts would include “putting of a
group . . . on a regimen of insufficient food allocation, reducing required

   45 Cassese, Genocide in the Rome Statute of the International Criminal Court, 2002, I,

p. 338.
   46 ICTR, Prosecutor v. Kambanda, No. ICTR-97-23-S, 4 September 1998, para. 16.

  47ICTY, Prosecutor v. Jelisić, paras. 85-86.
  48Killing of members of the group as the material element in subparagraph (a) is
shown if the victim has died and the death resulted from an unlawful act or omission
(ICTR, Prosecutor v. Akayesu, No. ICTR-96-4-T, 1998, para. 589).
  49   A/C.6/SR.82, p. 3 ; N. Robinson, op. cit., p. 16.

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medical attention, providing insufficient living accommodation, etc.” 50,
which results in slow death in contrast to immediate death under sub-
paragraph (a) of Article II. The differentia specifica between the act of
killing and the imposing of destructive conditions of life is, consequently,
primarily expressed in the modalities of destruction — the latter case
does not involve the temporal immediacy of killing as the means (modus
operandi) of extermination but does result in extermination over time.

   The legislative history of subparagraph (b) also demonstrates that the
authors of the Convention understood “serious bodily or mental harm”
to be a form of physical genocide. Physical suffering or injury without
lethal consequences falls within the ambit of crimes against humanity and
torture 51. The expression “mental harm”, on the other hand, has a spe-
cific meaning in subparagraph (b). It was included at the insistence of
China. Explaining the proposal by reference to the acts committed by
Japanese occupying forces against the Chinese nation through the use of
narcotics, China pointed out that, although these acts were not as spec-
tacular as mass murders and the gas chambers of Nazi Germany, their
results were no less lethal 52. Accordingly, not every bodily or mental
injury is sufficient to constitute the material element of genocide, but, as
stated by the International Law Commission, “it must be serious enough
to threaten group destruction” 53, as destruction is understood in the
Convention, i.e., physical and biological destruction.

   Acts such as sterilization of women, castration, prohibition of mar-
riages, etc., subsumed under “measures intended to prevent birth within
the group”, constitute biological genocide. The extreme gravity of meas-
ures imposed to prevent births within the group with a view to annihilat-
ing the group’s national biological power is the criterion for differentiat-
ing between the genocidal act defined in subparagraph (b) and measures
which may be taken against the will of members of a group within the
framework of family planning and birth control programmes, measures
which are sometimes descriptively called “genocide by another name” or
“black genocide” 54.

  85. Prima facie only the act of forcible transfer of children of the

  50   N. Robinson, op. cit., p. 18.
  51   ICTY, Prosecutor v. Delalić et. al., Trial Judgment, p. 511.
  52 Official Records of the General Assembly, Third Session, Part I, Sixth Committee,

69th meeting, pp. 59-60.
  53 Draft Code of Crimes against the Peace and Security of Mankind, Official Records

of the General Assembly, Fifty-first Session, Supplement No. 10, United Nations doc. A/
51/10 (1996), Art. 17.
  54 M. Treadwell, “Is Abortion Black Genocide ?”, Family Planning Perspectives, Vol. 4,

No. 4/1986, p. 24.

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group to another group does not fit into the concept of physical/biologi-
cal genocide as defined in the Convention. However, it should be empha-
sized that the act of forcible transfer of children has been included in acts
constituting genocide with the explanation that it has physical and bio-
logical effects since it imposes on young persons conditions of life likely
to cause them serious harm, or even death 55. In that sense, it is of con-
siderable importance that the proposal to include cultural genocide in the
Convention also has been understood to cover a number of acts which
spiritually destroy the vital characteristics of a group, as observed in par-
ticular in forcible assimilation. The proposal was rejected on a vote of
26 against and 16 in favour with 4 abstentions 56. Hence, it appears rea-
sonable to assume that the underlying rationale of subparagraph (e) is
“to condemn measures intended to destroy a new generation, such action
being connected with the destruction of a group that is to say with physi-
cal genocide” 57. Even if it is accepted that the act covered by subpara-
graph (e) constitutes “cultural” or “sociological” genocide, its meaning
is in concreto of limited importance. Primo, as such it would be an excep-
tion to the rule regarding material genocide embodied in Article II of the
Convention and, therefore, would be subject to restrictive interpretation.
Secundo, the Applicant does not refer to “forcible transfer of children” as
an act of genocide allegedly committed on its territory.

   86. It follows that the difference between the act of killing members of
the group and other acts constituting the actus reus of the crime of geno-
cide is in the modalities rather than in the final effects. In that sense, the
explanation given by the ICTR in the Akayesu case seems proper. It
describes the act defined in subparagraph (c) of Article II of the Geno-
cide Convention as “methods of destruction by which the perpetrator
does not immediately kill the members of the group, but which, ulti-
mately, seek their physical destruction”, 58 i.e., the so-called slow death.

  87. There are two basic legal issues in the interpretation of the word
“destruction” :
(a) whether the destruction must take place in reality, i.e., be actual ;
    and,
(b) the scope of destruction.
   88. Regarding the actual nature of destruction, there is some degree of
difference among the various acts enumerated in Article II of the Con-
vention.

  55 A/C.6/242.
  56 Official Records of the General Assembly, Third Session, Part I, Sixth Committee,
83rd meeting, p. 206.
  57 Study of the Question of the Prevention and Punishment of the Crime of Genocide,

prepared by N. Ruhashyankiko, Special Rapporteur (E/CN.4/Sub.2/415, p. 25.
  58 ICTR, Prosecutor v. Akayesu, para. 505.

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   The act of “killing” implies actual destruction in terms of the proven
result achieved. In that sense, the death of the victim is the essential ele-
ment of the act of killing. Concerning this element, a vast and nearly uni-
form jurisprudence has been developed by both Tribunals, at least declara-
tively, in that, for example, in the Krstić case, the “missing” are treated as
“dead” 59.
   In contrast to killing, acts of serious bodily or mental harm, and acts
of forcible transfer of children, do not imply actual destruction, but a
corresponding result, expressed in grievous bodily or mental harm and
transfer of children respectively, and leading to destruction. In other
words, in these two acts, the required result has a causal connection, in
which the effect is deferred, with destruction.

   The infliction of destructive conditions of life and the imposition of
measures to prevent births, however, do not require any proof of a result ;
they represent, themselves, the result. For the sake of balance, and of
legal security, however, in respect of such acts the intent requirement is
more stringent, since they, unlike the acts for which a specific result is
required, must be undertaken “deliberately” and must be “calculated”, in
the case of infliction of destructive conditions on the group, and must be
“intended” to prevent births, in the case of the imposition of measures.

   89. The intrinsic differences among the acts enumerated in Article II
of the Convention in their relation to the destruction of the protected
group as the ultimate ratio leges of the Convention require a particularly
cautious approach in the determination of the actus reus of the crime of
genocide.
   In contrast to “killing”, all other acts constituting an actus reus of
genocide, falling short of causing actual destruction, merely have the
potential capacity to a greater or lesser extent, to destroy a protected
group. Legally, this makes them more akin to an attempt to commit
genocide. In reality, these acts, therefore, may be seen more as evidence
of intent than as acts of genocide as such. Of course, from the stand-
point of criminal policy, genocide may be characterized as any form
of denial of a group’s right to survive ; the 1948 Convention is indeed
a Convention on the Prevention and Punishment of Genocide, but
still it is a fact that the line between acts short of actual destruction
and attempts to commit genocide may be invisible, especially at the
decision-making time.

  59  ICTY, C { elebići, Appeal Judgment, paras. 422-423 ; Blaškić, Trial Judgment,
para. 217 ; Kupreškić, Trial Judgment, paras. 560-561 ; ICTR, Kayishema, Trial Judg-
ment, para. 140 ; Akayesu, Trial Judgment, para. 588 ; ICTY, Krstić, Trial Judgment,
para. 485.

475

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                                                           uA)
   For the proper application of the Law on Genocide, as embodied in
the Convention, acts of genocide, or more precisely the methods and
means of execution of acts of genocide short of actual destruction, must
be evaluated strictly, not only from the subjective but also from the
objective standpoint. The last point of view concerns basically the capa-
bility of a particular action or actions to produce genocidal effects. In
other words, the destructive capacity in terms of material destruction
must be discernible in the action itself, apart from in tandem with the
intention of the perpetrator.

  3.1. Scope of destruction
   90. As far as the required scope of destruction is concerned, two cri-
teria emerged in the emerging case-law of the Tribunals.
   One implies the destruction of the group in terms of the sheer size
of the group and its homogenous numerical composition, the
so-called quantitative approach. As a rule, it is presented in the form
of a “substantial” part, which means “a large majority of the group
in question” 60.
   The second criterion, however, contemplates the destruction of the
elite or of the leadership of the group, which are considered to be of sub-
stantial importance for its existence. For this criterion, it is considered
sufficient “if the destruction is related to a significant section of the
group, such as its leadership” 61.
   Alternatively, the qualitative and quantitative scope of the destruction
cannot possibly fit into the genus proximum of the crime of genocide ;
moreover, it conflicts with the logical considerations. It is not clear how
two by nature diametrically opposite criteria may ensure the sound
administration of justice in the specific case. A possible consequence of
their combined application might merely be the relativization, due to the
disintegration of the constitutive elements of the crime of genocide, of
the protection offered by the Convention to the national, ethnic, reli-
gious or racial groups. The intention to destroy a group is divided, in the
event of the application of both criteria, between the “intention to
destroy a group en masse” and the intention to destroy “a more limited
number of persons selected for the impact that their disappearance
would have upon the survival of the group . . .” 62. Introducing the char-
acterization of genocide, even when the intent to exterminate covers only
a limited geographic area, particularly allows for subjective and arbi-
trary delimitations. It could be said that “this degree of indeterminacy

  60 ICTY, Prosecutor v. Jelišić, Trial Judgment, p. 26, para. 82.
  61 ICTY, Prosecutor v. Stakić, Trial Judgment, p. 149, para. 525 ; ICTY, Prosecutor v.
Krstić, Trial Judgment, para. 587.
  62 ICTY, Prosecutor v. Jelišić, Trial Chamber, para. 82.

476

516       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
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places genocide on the outermost boundaries of the nullem crimen sine
lege principle” 63.
   In the choice between quantitative and qualitative criteria, it is difficult
to find a reason for giving preference to the qualitative criterion.
   First of all, the criterion of “leadership” is ambiguous and subjective.
It is not clear whether it applies to the political, military or intellectual
elite, or whether it has a generic meaning. It also introduces through the
back door the consideration that the leaders of the group, regardless of
the type of leadership, are subject to special, stronger protection than the
other members of the group, in whole or in part, that they constitute,
which is in fact a distinct subgroup. Moreover, this criterion has an ele-
ment of the concealed promotion of the political group to the status of a
protected object of the Convention — the subsequent division of the
members of the group into elite and ordinary members in modern society
has an anachronistic and discriminatory connotation flagrantly at odds
with the ideas, which represent the bases of the rights and liberties of
individuals and groups. Last but not least, comes understanding part of
the group in terms of its leadership, of which there is no trace in the
travaux préparatoires of the Convention.
   Contrary to the so-called qualitative criterion, the quantitative crite-
rion is characterized by objectivity, which derives from its very nature.
According to the Law of Big Numbers, in its application, it includes, as a
rule, the members of the group to which the qualitative criterion is
applied as a parameter of the intent to destroy. It is also more appropri-
ate to the spirit and letter of the Convention, which takes the group as
such as the ultimate target or intended victim of the crime.

  3.2. The object of destruction

   91. The object of destruction is a “national, ethnical, racial or religious
group as such”. The qualification expresses the specific collective charac-
ter of the crime. It lies within the common characteristics of the vic-
tims — belonging to national, ethnic, racial or religious group — as an
exclusive quality by reason of which they are subjected to acts constitut-
ing actus reus of genocide. The genocide is directed against a number of
individuals as a group or at them in their collective capacity and not ad
personam as such (passive collectivity element). The International Law
Commission expressed the idea by saying that :

      “the prohibited [genocidal] act must be committed against an indi-
      vidual because of his membership in a particular group and as an
      incremental step in the overall objective of destroying the group . . .

  63 P. Akhavan, “Contributions of the International Criminal Tribunals for the Former

Yugoslavia and Rwanda to the Development of Definitions of Crimes against Humanity
and Genocide”, American Society of International Law Proceeding, April 2000, p. 283.

477

517        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
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       the intention must be to destroy the group ‘as such’, meaning as a
       separate and distinct entity, and not merely some individuals because
       of their membership in a particular group” 64.

  The ICTY determines relevant protected groups as groups that “may
be identified by means of the subjective criterion of the stigmatisation of
the group, notably by the perpetrators of the crime” 65.
  92. The subjective criterion in the determination of a “national, ethnic,
racial or religious” group is one thing, subjectivism is another.

   The subjective criterion as an alternative to, or in combination with the
objective one, is the legal criterion established both in international and
municipal law as regards national, ethnic, religious or racial groups on
the basis of the fact that they roughly correspond “to what was recog-
nized, before the Second World War, as ‘national minorities’” 66. This
includes, as Schabas rightly notes, “races” and “religious groups” 67 whose
meaning has not provoked significant controversies. In relation to ethnic
groups, it is the expression, which, in contemporary usage, seems to
assume the meaning of a synthetic expression for “national minorities”,
“races” and “religious” groups 68. It was applied by the ICTR in the
Akayesu case. The Tribunal found that the Hutus and the Tutsis were
“considered both by the authorities and themselves as belonging to two
distinct ethnic groups” 69.

   In contrast, the “stigmatisation of the group” by the perpetrators of
the crime 70 appears to introduce subjectivism into the determination of
the protected group rather than properly applying the subjective criterion
as such. Its cumulative effects might be characterized as the nullification
of the legal substance of the crime of genocide in one of its constitutive
elements — the element of protected groups — which changes from a
“national, ethnic, racial or religious” group as such into an abstract,
human collectivity determined subjectively. Thus the difference between
the groups protected under the Genocide Convention and those, such as

  64 Official Records of the General Assembly, Fifty-first Session, Supplement No. 10,

United Nations doc. A/51/10/1996, at p. 88 ; emphasis added.
  65 ICTY, Prosecutor v. Brdjanin, Trial Judgment, para. 683 ; ICTY, Prosecutor v.

Krstić, Trial Judgment, para. 557 ; ICTY, Prosecutor v. Jelišić, Trial Judgment, para. 70.
  66 ICTY, Prosecutor v. Krstić, Trial Judgment, para. 556 ; ICTR, Prosecutor v. Ruta-

ganda, Trial Judgment, para. 56 ; ICTR, Prosecutor v. Kajelijeli, Trial Judgment, para. 811.
  67 W. Schabas, Genocide in International Law, p. 113.
  68 Ibid.
  69 ICTR, Prosecutor v. Akayesu, para. 122, footnote 56 ; emphasis added.
  70 ICTY, Prosecutor v. Nikolić, Rule 61, Decision, para. 27 ; ICTY, Prosecutor v.

Krstić, Trial Judgment, para. 557 ; ICTY, Prosecutor v. Jelišić, Trial Judgment, para. 70 ;
emphasis added.

478

518          APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                             uA)
political groups, which are not considered protected groups, may be lost.
As a consequence, the configuration of international crimes is being
eroded because the physical acts by which war crimes, crimes against
humanity and genocide are committed, are basically the same. Moreover,
personal stigmatization as the criterion for the determining of the pro-
tected group may nullify the objective existence of the “national, ethnic,
racial or religious” group and introduce into the context of the protected
groups, those groups that are excluded from the scope of the Genocide
Convention.
   93. The cumulative negative effects of the stigmatization of the perpe-
trator as the relevant criterion derive from the incongruity, and even
open conflict, of this criterion with the generally accepted legal principles
and cogent legal considerations.

   Primo, the constitutive elements of genocide are a matter of objective
law. As objective law, even regardless of its legal force, they cannot, save
in the event of an explicit provision to the contrary, be determined by the
perpetrator of a crime. It is completely unknown in the province of inter-
national criminal law as well as comparative criminal law for the perpe-
trator of an offence to be in a position to determine the scope of the
offence committed. The scope of an offence is a matter of a norm
of objective law and not of the perpetrator’s personal value-judgment.
The determination of a “national, ethnic, racial or religious” group,
as an element of the crime of genocide in the perpetrator’s personal
value-judgment is in irreconcilable conflict with the very essence of
legal reasoning in the province of criminal law. The qualification
“as such” in the formulation of Article II of the Convention affirms
that the “national, ethnic, racial or religious” group is a matter
of objective reality and not of the personal value-judgment of the
perpetrator.
   Secundo, by a judicial finding based on the perpetrator’s personal
value-judgment, any court of law, in the event of discrepancy between the
subjective criterion of stigmatisation and the “national, ethnic, racial or
religious group” as such, creates a virtual judicial reality at variance with
the objective reality contemplated in Article II of the Convention. More-
over, its possible consequence may be identification as a targeted group —
a group that even does not exist in reality 71.

  Tertio, the subjective criterion alone may not be sufficient to determine
the protected group under the Genocide Convention, for the acts enu-
merated in subparagraphs (a) to (e) of the Convention must be directed
against “members of the group” 72.
  Quatro, in the case of several perpetrators, the criterion of stigmatisa-

  71   W. Schabas, op. cit., p. 110.
  72   Ibid., p. 111.

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519          APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
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tion can easily lead to uneven, substantively different, identifications of
the relevant groups.
   Quinto, the perpetrator’s perception of the “national, ethnic, racial or
religious” group, if inappropriate, creates error in personam which per se
disqualifies genocidal intent. It is a general principle of criminal law
that any person who, while committing a criminal offence, is unaware
that a circumstance is part of the legal elements, does not act
intentionally. Criminal liability for negligent action, however, remains
unaffected.
   Sixto, it confers excessive discretionary powers on the Court. Consid-
ering the nature of the perpetrator’s perception, it might be said that they
go as far as discretio generalis.

   94. The weak points of the subjective criterion are also demonstrated
by the jurisprudence of both Tribunals. In the Brdjanin case the ICTY
stated expressis verbis that “[t]he correct determination of the relevant
protected group has to be made on a case-by-case basis, consulting both
objective and subjective criteria” 73. For instance, the ICTR stated, as the
objective criterion for the identification of Tutsis, the identification cards
indicating ethnic belonging (identification by others) or the subjective cri-
terion of the members of targeted groups (self-identification) 74. Conse-
quently, it is of paramount importance that the subjective criterion, if
applied at all in its “stigmatization” form, must be conceived within the
framework of objective legal standards derived from the letter and spirit
of the relevant provisions of the Genocide Convention respecting stand-
ards established in the corpus of national minorities law.
   95. It appears that the criterion of stigmatisation not only cannot be
the sole criterion ; it cannot even be the primary criterion for the deter-
mination of the “national, ethnic, racial or religious” group within the
framework of the Genocide Convention. It is rather a personal perpetra-
tor’s confirmation of the existence of the protected group, and not its
creation. It is interesting to note that in the case of war crimes and crimes
against humanity, the ICTY applied the objective criterion for the deter-
mination of protected groups 75.
   Basically, the stigmatization of the group understood in that way is of
evidential significance as one of the elements for inference of genocidal
intent.

  96. The “[n]ational, ethnic, racial or religious” group, at least in cases

  73 ICTY, Prosecutor v. Brdjanin, Trial Judgment, para. 684 ; Thus also the ICTR in the

Semanza Trial Judgment, para. 317 ; ICTR, Prosecutor v. Kajelijeli, Trial Judgment,
para. 811 ; emphasis added.
  74   ICTR, Prosecutor v. Kayishema, Trial Judgment, paras. 90, 98.
  75   Jones, pp. 69, 94.

480

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where the State in whose territory the alleged crime of genocide occurred,
recognizes the existence of these groups as distinct and separate entities,
should be determined on the basis of the criteria established by the inter-
nal law of that State. Or on the basis of international treaties in force to
which the relevant State is a Party. In a way, one is dealing here with a
renvoi or reference of the matter to the internal law of Bosnia and
Herzegovina. Both because international law has no generally accepted
precise criteria for the determination of “national, ethnic, racial or
religious” groups and because of the fact that the case concerned actually
invoked entities from the internal law and society of Bosnia and
Herzegovina. Or, if not a strict renvoi to internal law, then at least
cognizance of groups that exist under the internal law of Bosnia and
Herzegovina and the criteria on the basis of which they have been
determined. One more reason for this is the fact that the ICTY itself,
when it saw fit, relied on domestic law in determining the elements of
international crimes.

   The application of the subjective criterion suffers from objective limi-
tations deriving primarily from the basic meaning of the “national, eth-
nic, racial or religious” group as such. Although the Convention does not
offer an explicit definition of these groups, it appears that the basic mean-
ing of the expressions used is relatively clear. The attributes “national”,
“ethnic”, “religious”, “racial”, although lacking a precise, universally
accepted determination, possess recognizable, generic substance by them-
selves, elaborated to a certain extent also in other international conven-
tions (exempli causa, the International Convention for Elimination of All
Forms of Racial Discrimination). The lack of specific distinguishing
marks — differentia specifica — between these four groups, which may
consequently result in their overlapping, cannot have a substantive nega-
tive effect on the proper application of the Genocide Convention, for
their general generic recognizability clearly shows which groups are not
protected under the Convention, or “carries” within itself the exclusion
effect, thus preventing the creation of new protected groups outside the
frame of “national, ethnic, racial or religious” groups. This is clearly
demonstrated just in Bosnia and Herzegovina.

   97. The Applicant asserts that in the present case protected groups
under the Genocide Convention are — the “Bosnian people” (Applica-
tion, Memorial of Bosnia and Herzegovina, 2.2.1.2), “mainly Muslim”
(ibid., 2.2.2.1), “Muslim population” (ibid., 2.2.5.13), “national, ethnical
or religious groups (within, but not limited to, the territory of the Repub-
lic of Bosnia and Herzegovina), including in particular the Muslim popu-
lation” (ibid., Submission under (1), non-Serb population (Reply of Bos-
nia and Herzegovina, 7) ; the “People and State of Bosnia and Herze-
govina” (Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Pro-

481

521      APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                         uA)
visional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 4,
para. 2 ; ibid., Provisional Measures, Order of 13 September 1993, I.C.J.
Reports 1993, p. 332.
   As the protective object of genocide, “national, ethnical, religious or
racial” groups must be precisely determined. The determination require-
ment is of overall significance both in the procedural and in the substan-
tive sense.

   The expression “non-Serbs” in the ethnic, national or religious envi-
ronment of Bosnia and Herzegovina has a rather broad and vague mean-
ing, incapable of being incorporated into the frame of “national, ethnical,
religious or racial” group as defined by the Genocide Convention. As a
general expression encompassing different groups, it runs counter to the
essential requirement for the protected group to constitute a separate and
distinct entity. Besides Muslims and Croats, the expression necessarily
comprises other groups. Not only Yugoslavs, Jews and Roma, but also
Montenegrins who were represented in the ethnic and national make-up
of Bosnia and Herzegovina as well. As Montenegrins are the leading eth-
nic community in Montenegro, a former federal unit of the Respondent,
it follows that the expression “non-Serb” implies that the Respondent is
also charged with alleged auto-genocide. Moreover, the expression
includes Serbs in BiH, the relatively largest number of whom declared
themselves as Yugoslavs.

   The expression “Bosnian people” is based on individuals’ citizenship
link with the State of Bosnia and Herzegovina as the objective criterion
for the determination of the “national group”. However, the term “Bos-
nians” does not exist in terms of the “national, ethnic, racial or religious”
group, because it reflects the notion of a “national group” in the “politi-
cal-legal” sense 76, inapplicable to the rights of States such as Bosnia and
Herzegovina which make a distinction between the notions of “national-
ity” and “citizenship”. In that regard, the characterization “Bosnian
people” nullifies the existence of different ethnic, national and religious
groups in Bosnia and Herzegovina and as such might be characterized as
a discriminatory one. The same applies mutatis mutandis to the “Bosnian
population”.
   The formulation “mainly Bosnian Muslims”, whether conceived as a
“people” or “population” is closest to the notion of “national, ethnic,
racial or religious” group in terms of the Genocide Convention although
it does not correspond in toto to the strict requirements of the Conven-
tion’s formulation of “a national, ethnic, racial or religious group as
such” (emphasis added). The term “as such” clearly indicates that the
destruction of a group as a distinct and separate entity is the object of

  76 N. Ruhashyankiko, Special Rapporteur, doc. E/CN.4, Sub. 2/416, 4 July 1978,

paras. 56-61.

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522       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                          uA)
genocide. The plain and natural meaning of the formulation “mainly
Bosnian” is that the object of the alleged genocide was not Bosnian
Muslims as such, as a distinct and separate entity. Furthermore, it
means that acts committed against individuals were not directed at
them as the personification of a relevant group, in their collective
capacity, which is the true, intrinsic, characteristic of genocide.
Short of that condition, the criminal intent cannot be characterized
as genocidal, in the normative milieu of the law on genocide, as jus
strictum.

   It appears that none of the determinations of the protected group given
by the Applicant meets the requirements embodied in the formula
“national, ethnic, racial or religious group as such” at least in the pro-
ceedings before the International Court of Justice characterized, inter
alia, by the fundamental principle of non ultra petita. As the Court stated
in the Asylum case :
         “One must bear in mind the principle that it is the duty of the
      Court not only to reply to the questions as stated in the final sub-
      missions of the parties, but also to abstain from deciding points not
      included in those submissions” (Judgment, I.C.J. Reports 1950,
      p. 402).
   In addition, it should be noted that the Applicant, in its submissions in
the Memorial, subsumes under protected groups “national, ethnical or
religious groups within, but not limited to the territory of Bosnia and
Herzegovina . . .” (Memorial, Part 7, Submission under (1)). In its final
submission the Applicant requested the Court to adjudge and declare
that Serbia and Montenegro
      “has violated its obligations under the Convention on the Prevention
      and Punishment of the Crime of Genocide by intentionally destroy-
      ing in part the non-Serb national, ethnical or religious group within,
      but not limited to, the territory of Bosnia and Herzegovina, including
      in particular the Muslim population” (Agent Softic, CR 2006/37,
      p. 59, para. 1 ; emphasis added).

   98. As regards its procedural significance, the Application, as stated in
Article 38, paragraph 2, “shall . . . specify the precise nature of the
claim”. The determination of the group protected is, in the case concern-
ing Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), the rele-
vant part of the claim as a whole.
   In the substantive sense, the protection of the “national, ethnic, racial
or religious” group is ratio legis of the Convention. An improper deter-
mination of the group protected may have far-reaching consequences in
the proceedings before the Court. In contrast to the criminal court, this

483

523       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                          uA)
Court, in the performance of its judicial function, is subject, inter alia,
also to the fundamental principle of non ultra petitum. Accordingly, the
Court, not being in a position to substitute itself for the party, in the
adjudication of the matter is bound by the determination of the protected
group given by the Applicant (P.C.I.J., Series A, No. 7, p. 35 ; Nuclear
Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 262-263,
paras. 29-30 ; Nuclear Tests (New Zealand v. France), Judgment, I.C.J.
Reports 1974, pp. 466-467, paras. 30-31).

  The intent to destroy a group “as such” means the intent to destroy the
group as a separate and distinct entity. It follows from the fact that the
act of genocide constitutes not just an attack on an individual, but also
an attack on the group with which the individual is identified.

   The group in terms of a separate and distinct entity may, as a matter of
principle, be determined either in a positive or a negative manner.
   The jurisprudence of the ICTY is generally against the so-called nega-
tive criteria. The negative definition of the group, based on the exclusion
formula, has inherent limits in its application. In principle, it is suitable
for determining the protected group in terms of a separate and
distinct entity in bi-ethnic or, under certain conditions, in tri-ethnic
communities, although the question remains open as to whether the
negative definition as such is the proper form for the legal determination
of matters which belong to jus strictum or rather simply a descriptive
one. In multi-ethnic communities consisting of more than three national,
ethnic or religious groups, the negative definition is totally incapable of
properly determining the protected group under the Convention. The
exclusion principle as the operative principle of the negative definition is
clearly powerless to determine the protected group as a distinct and
separate group.

4. “As such”
   99. The words “as such” are, regarding a “national, ethnic, racial or
religious” group in terms of the Genocide Convention — a qualification
of a characterization. They establish another aspect of the requirement of
intent — that the intent to destroy be directed at the group as a protected
group 77.
   The group itself is the ultimate target or intended victim of the crime of
genocide. But in order to achieve the overall objective of destroying the
group, it is essential for the act to be committed against individuals con-

  77 Lipman, “The 1948 Convention on the Prevention and Punishment of the Crime of

Genocide : Forty-five Years Later”, Temp. Int. Law and Comp. Law Journal, 7-9/1994,
pp. 22-24, note 38.

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524        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
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stituting the group as the direct victims. The fact that the individuals con-
stituting the group are intentionally subject to acts which constitute the
actus reus of genocide is, however, not sufficient per se in the light of the
qualification “as such”. As the Trial Chamber stated in the Krstić case :
“Mere knowledge of the victims’ membership in a distinct group on the
part of perpetrators is not sufficient to establish an intention to destroy
the group as such” 78.

   To qualify as genocidal, the intention must be aimed at individuals
who constitute the group in their collective capacity, the capacity
of members of the protected group whose destruction is an incremental
step in the realization of the overall objective of destroying the
group.
   The qualification “as such” serves also as differentia specifica between
discriminatory intent as suggestive of an element of the crime of persecu-
tion, which also may have, as its target for genocidal intent, a racial,
excluding ethnic, group 79.
   As a consequence, if prohibited acts under Article II of the Convention
targeted a large portion of a protected group such acts would not con-
stitute genocide if they were a part of a random campaign of violence or
general pattern of war.

   It may be assumed that such an understanding influenced this Court to
find in the incidental procedure of provisional measures in the Legality of
Use of Force cases, that “the bombings . . . indeed entail the element of
intent, towards a group as such, required by the provision” (Art. II of the
Genocide Convention ; I.C.J. Reports 1999, p. 138, para. 40).

  For “the continued bombing of the whole territory of the State,
pollution of soil, air and water, destroying the economy of the country,
contaminating the environment with depleted uranium” (Legality of
Use of Force (Yugoslavia v. Belgium), CR 99/14, p. 30, 10 May
1999, Agent Etinski) could have been included in the creation of
destructive living conditions at least as much as the forced
displacement, encirclement of towns or starvation. The intent behind
the acts undertaken was defined by General Wesley Clark as
follows :

         “We’re going to systematically and progressively attack, disrupt,
       degrade, devastate, and ultimately, unless President Milosevic com-

  78ICTY, Prosecutor v. Krstić, Trial Judgment, para. 561.
  79ICTY, Prosecutor v. Brdjanin, Trial Judgment, para. 992 ; ICTY, Prosecutor v.
Krnojelac, Appeal Judgment, para. 185.

485

525        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
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       plies with the demands of the international community, we’re going
       to destroy his forces and their facilities and support” 80,

or, as Michael Gordon in his article entitled “Crisis in the Balkans”
quoted the words of General Short saying that he : “hopes that the dis-
tress of the Yugoslav public will undermine support for the authorities in
Belgrade”. And he continued : “I think no power to your refrigerator, no
gas in your stove, you can’t get to work because the bridge is down . . .” 81.

   100. The provision of Article II of the Convention according to
which genocide means the destruction of a group “in whole or in part”
is not without ambiguities. It is not quite clear whether the qualifica-
tion “in part” applies to the scope of the intent, or to the scope of the
act.
   A grammatical interpretation would suggest that the qualification “in
part” concerns both elements of the crime — objective and subjective.
Such an interpretation, however, does not seem completely satisfactory,
mainly because the discriminatory intent is the most general character-
istic of the intent to destroy.
   Namely, it implies that the discriminatory intent is expressed doubly
and unequally — on the one hand on the “national, ethnic, religious or
racial” group as a distinct and separate entity, and, on the other hand,
within that entity, treating some of its parts as if they were distinct and
separate entities. In other words, if the qualification “in part” applied
only to the scope of intent, it would mean, as the ultimate result of such
an interpretation, that a part of a group is a distinct entity within the
group to which it belongs.

  The basic idea underlying the Genocide Convention is the protection
of the right to existence of entire human groups, which ex definitione
implies the protection of its parts as small groups as well.

   The intent to destroy a part of a group is, in fact, ratione personae
a limited, actual projection of the intent to destroy a group as a whole,
dictated by an appropriate factual occasion, rather than by different
attitudes toward parts of the protected group. As noted by
Professor Pellet “l’élément subjectif du génocide, le mens rea, c’est-à-dire
l’intention génocidaire, ne peut être que global” (CR 2006/10, p. 47,
para. 21).

  80 BBC News, http://news.bbc.co.uk/1/hi/special_report/1998/kosovo2/303641.stm.
  81 New York Times, 13 May 1999, “Crisis in the Balkans”, http://select.nytimes.com/
gst/abstract.html ?res=F10711FE3A5B0C708DDDAC0894D1494D81.

486

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5. The meaning of ethnic cleansing under the Convention

  101. In the case at hand the expression “ethnic cleansing” is used in a
number of senses :
 (i) to mean an act constituting an actus reus of the crime of genocide ;

 (ii) as a synonym or euphemism for the crime of genocide ;
(iii) as substratum or factual matrix for inferences of genocidal intent as
      the subjective element of the crime of genocide.
   102. The situation is clear as to “ethnic cleansing” as an act constitut-
ing an actus reus of genocide.
   Acts constituting the actus reus of genocide are listed a limine in Arti-
cle II of the Convention. Article II of the Convention does not include
“ethnic cleansing” as an act of genocide.
   In the course of the drafting of the Genocide Convention, there were
proposals, it is true, to place the subsumed acts under the heading ethnic
cleansing as the sixth act of genocide. But these proposals were not
accepted. Syria submitted an amendment 82 to include the imposition of
“measures intended to oblige members of a group to abandon their
homes in order to escape the threat of subsequent ill-treatment” as an
actus reus of genocide. The amendment was supported by the Yugoslav
representative, Bartos, citing the Nazi displacement of the Slav popula-
tion from a part of Yugoslavia as an action “tantamount to the deliber-
ate destruction of a group”. He added that “genocide could be commit-
ted by forcing members of a group to abandon their homes” 83.

   The amendment was, however, rejected by a clear majority of 29 votes
against and 5 in favour with 8 abstentions 84, the explanation having been
offered that it deviated too much from the concept of genocide 85.
Specifically discussing the contention that forced displacement
practised by the Nazis was tantamount to the deliberate destruction
of a group, the Soviet representative Morozov emphasized that this
was consequence, not genocide itself 86.
   The exhaustive listing of the acts constituting the actus reus of geno-
cide is the proper and cogent expression of the fundamental principle of
criminal law, domestic or international : nullum crimen, nulla poena sine
lege.
   During the debate in the Sixth Committee, two amendments were sub-
mitted 87 proposing the adoption of an illustrative definition of acts of

 82 United Nations doc. A/C.6/234.
 83 United Nations doc. A/C.6/SR.82.
 84 Ibid.
 85 Maktos (United States of America), Fitzmaurice (United Kingdom), ibid.
 86 Ibid.
 87 United Nations docs. A/C.6/232/Rev.1 and A/C.6/223 and Corr.1.

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genocide. After discussion the amendments were rejected on the basis of
the argument that an exhaustive enumeration was necessitated by the
fundamental principle nulla poena sine lege. It was also observed that an
advantage of the exhaustive enumeration method was that it allowed for
the subsequent amendment of the Convention by the addition of further
acts to the enumeration 88.
   It should be noted that at no time during the drafting Statutes of the
two ad hoc tribunals or the Rome Statute of the International Criminal
Court was it even proposed to expand the list of acts or to deem the enu-
meration in Article II of the Convention to be non-exhaustive.
   The intrinsic, highly complex structure of “ethnic cleansing” also mili-
tates against its inclusion among acts of genocide. It encompasses acts
belonging to different genera of international crimes that accompany acts
which, although violative of internationally recognized human rights, are
not per se punishable (see paragraph 103 below).

  103. The Applicant equates genocide and “ethnic cleansing”. Exempli
causa, in its Reply, the Applicant contends that “the campaign of ethnic
purification is indeed tantamount to a further campaign of European
genocide in this century . . .” (Reply, para. 703, Chap. 5, Sect. 9 — The
Policy of Ethnic Cleansing). This is not an isolated perception. In the
confirmation of the second indictment against Karadžić and Mladić —
the Srebrenica indictment (IT-95-18-I) of 16 November 1995 — Judge
Mahmud Riad says, although more cautiously, that “[t]he policy of
ethnic cleansing . . . presents in its ultimate manifestation, genocidal
characteristics” 89.

  The answer to the question as to whether genocide and “ethnic cleans-
ing” can be equated is twofold : formal and substantive.

   Although the term “ethnic cleansing” emerged immediately after the
end of the Second World War as a “direct descendant of the expressions,
in particular the term ‘Säuberung’ (cleansing)” 90, used by the Nazis in
their “hygiene programmes”, it did not find a place in the Genocide Con-
vention, not even as an act that would constitute an actus reus of geno-
cide (see Article II of the Convention) or as a synonym for “genocide”.

  Hence the use of “ethnic cleansing” instead of the term genocide
implies, from a formal point of view, a redefinition of “genocide” as
accepted in the Genocide Convention. Terms used in legislative acts, in
particular conventions, such as the Genocide Convention, which lay

  88 N. Ruhashyankiko, Special Rapporteur, doc. E/CN.4, Sub. 2/416, 4 July 1978,

op. cit., p. 14.
  89 W. Schabas, “‘Ethnic Cleansing’ and Genocide : Similarities and Distinctions”, Euro-

pean Journal of Minority Rights, Vol. 3, 2003/4, pp. 111-112.
  90 For other views to that effect, see Schabas, op. cit., p. 113.

488

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down objective law with the force of jus cogens are not ordinary terms
subject to redefinition on the basis of one-sided, subjective assessment or
agreement being a part of the substantive law established by the Geno-
cide Convention. Forming a legal whole with the substantive provisions
of the Convention, the terminus technicus “genocide” can be changed or
replaced by some other term only pursuant to legal procedure analogous
to that for amending provisions of the Convention.

   In the substantive sense, equating genocide and “ethnic cleansing” may
be reasonable only where the latter overlaps in totto with the relevant
constituent elements — both material and subjective — of the crime of
genocide.
   There is one common denominator in numerous definitions of “ethnic
cleansing” ; it is expressed in terms of the goal towards which the perpe-
trator aspires. In that regard, one can take as the basic definition the one
given by the Special Rapporteur Mazowiecki in his Sixth Report. Accord-
ing to the Report, “ethnic cleansing may be equated with the systematic
purge of the civilian population based on ethnic criteria, with the view of
forcing it to abandon the territories where it lives” 91. The Commission of
Experts in their first Interim Report of 10 February 1993 also adopted
the same line of reasoning — “ethnic cleansing means rendering an area
ethnically homogeneous by using force and intimidation to remove per-
sons of given groups from the area” 92. Consequently, the genus proximus
of “ethnic cleansing” should be sought in creating ethnically homogen-
ous areas by forcing the inhabitants to leave their homes.

   The fundamental difference between genocide and ethnic cleansing lies
precisely in this point. Whereas genocide involves the extermination of
the protected groups, “ethnic cleansing”, if perceived as a crime per se,
involves the expulsion of the population from a given, as a rule disputed,
territory. It follows that, whereas the prohibition of genocide has as its
object protecting the physical and biological existence of a group, the
prohibition of “ethnic cleansing”, if perceived as a crime per se, would
have as its object preventing the expulsion of groups.

   It follows that, in terms of the subjective element, genocide is charac-
terized by the intent to destroy the targeted group, whereas “ethnic
cleansing” is characterized by the intent to expel or remove the civilian
population or persons belonging to given groups.

 91   Sixth Mazowiecki Report II, at p. 44, point 283 ; emphasis added.
 92   United Nations doc. S/25274.

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   A further difference lies in the acts by which genocide and “ethnic
cleansing” are committed.
   It appears that “ethnic cleansing” comprises a variety of acts substan-
tially different by nature and effect.
   The acts said to be acts of “ethnic cleansing” can, grosso modo, be
divided into two main groups :
(a) The first group is made up of acts punishable under international
    law, such as massive deportation, detention and ill-treatment of
    civilian population, shooting at selected civilian targets, mass dis-
    placement of communities, rape, summary executions, deliberate
    attack on and blocking of humanitarian aid, deliberate shelling of
    civilian targets (especially water and transport facilities, means of
    communication), taking hostages and detention of civilians for
    exchange, attack on refugee camps 93.

(b) The second group comprises acts which, while illegal, because they
    violate individuals’ or groups’ rights lying within the corpus of inter-
    nationally recognized human rights, are not per se punishable under
    international criminal law 94.
   It follows that acts effecting “ethnic cleansing” are different by nature
insofar as “ethnic cleansing” takes on the traits of a plastic
omnibus expression rather than those of a coherent, lege artis
structured criminal offence. As such, “ethnic cleansing” seems to be
a non-technical term “used by soldiers, journalists, sociologists,
social scientists and others to describe a phenomenon which is
not defined by law” 95. The actions by which “ethnic cleansing”
is carried out would possess the latter characteristic only if there
were a norm of international law prohibiting the ethnic re-composition
(or a deliberate change in the ethnic composition) of a territory
by any means — admissible or inadmissible — whatsoever (including,
for instance, the granting of benefits or material advantages to certain

  93 First Mazowiecki Report I, p. 4, points 15, 16 ; Fourth Mazowiecki Report II,

pp. 8-9, points 26, 29 ; Sixth Mazowiecki Report II, p. 5, point 13 ; Fifth Mazowiecki
Report II, p. 4, point 15.
   94 Exempli causa, administrative measures like removal of lawfully elected authori-

ties — Third Mazowiecki Report I, p. 8, point 17 (a) ; dismissal from work — First
Mazowiecki Report I, p. 3, point 12 ; constant identity checking of members of minority
ethnic groups — Third Mazowiecki Report I, p. 8, point 17 ; disconnection of
telephones — Fifth Mazowiecki Report II, p. 12, point 84 ; forced labour, very often
including work on the front lines of armed conflict — Fifth Mazowiecki Report II,
p. 12, point 84, etc.

  95 K. Mulaj, Ethnic Cleansing in the Former Yugoslavia in the 1990s : A Euphemism for

Genocide ?, p. 696.

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530       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
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persons or groups of persons to induce them to abandon the given
territory).
   In this context, it does not seem to be of decisive importance whether
a “policy of ethnic cleansing” or a “campaign of ethnic cleansing” is in
question. Because “ethnic cleansing” of a given territory is hardly possi-
ble without a plan and the co-ordinated action of a considerable number
of people or State institutions. Perceived in the sense of a “policy” or
“campaign”, ethnic cleansing is, in fact, but the expression or evidence of
intention to expel or remove groups from the territory. As a “policy” or
“campaign”, it is by nature systematic and widespread, because without
these attributes “ethnic cleansing” is not feasible in practical terms.
Simultaneous use of these expressions is, to begin with, a pleonasm (for
example, “deliberate policy”), which neither adds to nor takes away from
the substantive legal definition of “ethnic cleansing” as the removal or
expulsion of a group from a given territory.

   Although “ethnic cleansing” as such is not an actus reus of genocide
under the Genocide Convention, let alone a synonym or euphemism for
genocide, this does not mean that certain acts of “ethnic cleansing”
are not capable of being means or methods of committing acts
of genocide. The possibility of overlap between acts of genocide and acts
of “ethnic cleansing” does not, however, establish a legal nexus
between or the identity of these two notions. It is rather the
expression of an inherent instrumental capability of individual
physical acts to produce consequences that, in their concrete
manifestations, fit into the genus of the crime of genocide or ethnic
cleansing or some other crimes such as a crime against humanity or war
crime.

   Accordingly, what is involved here is the general instrumental capabil-
ity of certain physical acts to produce consequences whose legal charac-
terization within the configuration of punishable acts under international
law must be determined on the basis of the specific characteristics —
material and subjective — of international crimes taken individually.

   Indeed, the objective elements, for instance, of crimes against human-
ity and the crime of genocide
      “may undoubtedly overlap to some extent.
        . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
      Killing members of an ethnic or religious group may as such fall
      under both categories. The same holds true for causing serious bodily
      or mental harm to members of a racial or religious group, or even
      for the other three classes of genocide. However, crimes against
      humanity have a broader scope, for they may encompass acts that

491

531       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
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      do not come within the purview of genocide, for instance, imprison-
      ment and torture” 96.
In other words, these two categories of crimes are “reciprocally special in
that they form overlapping circles which nevertheless intersect only tan-
gentially” 97.
   Equally, the same objective elements can also be assimilated to specific
war crimes 98.
   Reasoning viewing any of the physical acts without regard to the total-
ity of specific characteristics — material and subjective — of interna-
tional crimes basically ignores the difference between the various kinds of
international crimes, so that, exempli causa, “incendiary bombing of
Hamburg, Dresden and Tokyo, and the atomic bombings of Hiroshima
and Nagasaki may constitute both genocide and war crimes”, since “[t]he
distinctive feature of pattern bombing is that the entire population of a
city becomes the target of annihilatory assault” 99.

   104. In principle, the fact that “ethnic cleansing” is carried out, inter
alia, by physical acts which are also capable of resulting in the commis-
sion of the crime of genocide allows for “ethnic cleansing” as a substra-
tum or factual matrix for inference of genocidal intent. This, however,
does not signify that genocidal intent may automatically be deduced from
proof that “ethnic cleansing” has occurred, since identical punishable
physical acts cannot per se be equated with acts of a particular crime.
Exempli causa, mass killings as physical acts may constitute the actus
reus of crimes against humanity, genocide or war crimes. An act of a par-
ticular crime, a concrete physical act, acquires a legal characterization
within the framework of the totality of the legal characteristics forming
the body of the particular crime.

   As regards a possible inference of genocidal intent from proven ethnic
cleansing, it appears that “ethnic cleansing” as such cannot be the proper
legal substratum for inference of genocidal intent. Owing to the differ-
ence between genocide and ethnic cleansing, only those acts of ethnic
cleansing which are punishable and capable of producing genocidal effects
can be taken as the components of a legal substratum for establishing the
existence of genocidal intent by inference. In that regard there is no dif-
ference whatsoever between acts of ethnic cleansing and any other pun-

  96 The Rome Statute of the ICC : A Commentary, I, 2002, ed. by A. Cassese, P. Gaeta

and J. Jenes, p. 339.
  97 Ibid.
  98 Interim Report of the Commission of Experts Established Pursuant to Security

Council resolution 780 (1992), United Nations doc. S/35374 (1993), para. 56.
  99 L. Kuper, Theoretical Issues Relating to Genocide : Uses and Abuses in Genocide :

Conceptual and Historical Dimension, ed. by G. I. Andreopulos, p. 34.

492

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ishable acts possessing the instrumental capability to produce genocidal
effects.

   Inference as such implies in concreto the application of the proper
standard of proof in relation to the constitutive elements of genocidal
intent.
   It appears that the ICTY jurisprudence also offers no basis for equat-
ing ethnic cleansing with genocide.
   This conclusion is suggested by both an affirmative and a negative
analysis of the jurisprudence of the Tribunal.
   From the negative standpoint, out of roughly a dozen indictments for
ethnic cleansing, the Tribunal convicted only General Krstić for complic-
ity in genocide. The case is, however, specific and requires special treat-
ment (see paras. 151-153 below).

   The affirmative analysis of the ICTY jurisprudence in this sense fol-
lows, on the other hand, from the Tribunal’s legal reasoning on the mat-
ter. For instance, in the Jelisić case, the Prosecution asserted that Jelisić
was “an effective and enthusiastic participant in the genocidal campaign”
against the group, which was significant “not only because it included all
the dignitaries of the Bosnian Muslim community in the region, but also
because of its size” 100. The Trial Chamber, however, although finding
that “the murders committed by the accused are sufficient to establish the
material element of the crime of genocide and it is a priori possible to
conceive that the accused harboured the plan to exterminate an entire
group” (Jelisić, Trial Chamber Judgment, para. 100) the Trial Chamber
adjudged that

           “In conclusion, the acts of Goran Jelisić are not the physical
        expression of an affirmed resolve to destroy in whole or in part a
        group as such.
           All things considered, the Prosecutor has not established beyond
        all reasonable doubt that genocide was committed in Brcko during
        the period covered by the indictment. Furthermore, the behaviour of
        the accused appears to indicate that, although he obviously singled
        out Muslims, he killed arbitrarily rather than with the clear intention
        to destroy a group. The Trial Chamber therefore concludes that it
        has not been proved beyond all reasonable doubt that the accused
        was motivated by the dolus specialis of the crime of genocide. The
        benefit of the doubt must always go to the accused and, conse-
        quently, Goran Jelisić must be found not guilty on this count.” 101

To the same effect, see Rule 61 Decision in the Karadžić and Mladić case.

  100   ICTY, Prosecutor v. Jelisić, Oral Ruling of 19 October 1999, p. 1.
  101   ICTY, Prosecutor v. Jelisić, Judgment, Trial Chamber, paras. 107-108.

493

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The Trial Chamber mandated in this case an investigation to establish
whether “the pattern of conduct of which it is seised, namely ‘ethnic
cleansing’, taken in its totality, reveals such a genocidal intent” 102.

   105. The District Court of Jerusalem, in its judgment in the Eichmann
case, offered a subtle legal explanation of the difference between “ethnic
cleansing” and genocide.
   Considering the Nazis anti-Semitic policy, the Court found that until
1941 that policy, a combination of discriminatory laws and acts of
violence, such as Kristalnacht of 9-10 November 1938, substantially
corresponded to what is nowadays called “ethnic cleansing”. Until
that time, the Nazi policy towards Jews, although based on
various forms of persecution, did not qualify as a genocidal one,
given that it allowed emigration from Germany, albeit under
discriminatory conditions.

  From mid-1941 onwards, that policy, according to the Court’s finding,
took the form of the “Final Solution” in the sense of total extermination,
connected with the cessation of emigration of Jews from territories under
German control 103. Eichmann was acquitted of genocide for acts com-
mitted prior to August 1941, since there remained a doubt as to whether
there was the intention to exterminate before that date. And the acts
committed against Jews until that date were subsumed by the Court
under the heading crimes against humanity 104 in contrast to the acts
committed after that date, characterized by the Court as genocide.

               II. Application of the Genocide Convention in Casu

 106. There are three basic, dubious points in the approach of the
majority of the Court as regards substantive issues :

  (i) perception of the judicial task of the Court in casu, including the
      approach to the ICTY jurisprudence relevant for the subject of the
      dispute ;
 (ii) interpretation of the duties of the Contracting Parties stemming
      from the Genocide Convention ; and
(iii) treatment of the issue of the responsibility of the Contracting Parties
      in the matter of genocide.

  102   Karadžić and Mladić case, Rule 61, Decision of 11 July 1996, para. 94.
  103   A. G. Israel v. Eichmann, 1968, 36 ILR 5 (District Court Jerusalem, para. 80).
  104   Ibid., paras. 186-187, 244 (1-3).

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1. General remarks about possible approaches of the Court in
   casu

  107. The judicial task of the Court in casu appears to be unique and
unprecedented and, as such, burdened with challenges and difficulties.

  Grosso modo the Court faced, at least theoretically, a couple of options.

   Primo, to substitute itself for the criminal court and to judge whether
genocide has been committed in Bosnia and Herzegovina, as is claimed
by the Applicant. A basis for this option, which is peculiar and surpris-
ing, might perhaps, be sought in the findings of the Court in the Judg-
ment on Preliminary Objections, in which the Court, ruling on the
Respondent’s fifth preliminary objection, held that Article IX of the Con-
vention “does not exclude any form of State responsibility” (I.C.J.
Reports 1996, p. 616, para. 32). If, therefore, a State may be responsible
for genocide in terms of criminal law, it is not clear why the Court, at the
basis of such an interpretation of Article IX of the Convention, could not
proceed as a criminal court. In other words, to ascertain, in proper pro-
ceedings, which, admittedly was not the case here, the legal requirements,
both objective and subjective, of the crime of genocide analogous to a
criminal court as regards individual perpetrations. In that scenario, there-
fore, the Court would limit itself to the issue of genocide allegedly com-
mitted by the Respondent, and would not enter ab initio into an exami-
nation of whether the genocide was committed by natural persons — an
issue within the competence of the ICTY.

   Secundo, to engage in a decision on the Applicant’s claim of
so-called factual genocide, assessing the result of the actions committed
during the civil war in Bosnia and Herzegovina, more or less
irrespective of the legal requirements of the crime of genocide
enshrined in Article II of the Genocide Convention on the basis,
as the counsel of the Applicant stated, of “common knowledge,
. . . a terrible genocide . . . was perpetrated upon the non-Serb
populations of Bosnia and Herzegovina” (CR 2006/9, p. 50,
para. 2 (Condorelli)) or on the basis of inference not based on proper
facts but on “common logic and intuition” (CR 2006/33, p. 41,
para. 16 (Franck)).
   Tertio, adhering to its position of civil court to adjudge upon the
Applicant’s claim, relying primarily, if not exclusively, on the juris-
prudence of the ICTY as the only judicial findings on the question at
issue at the international level. Since the judgments of the ICTY
do not have binding force as regards the Court, it would mean that
the Court would adopt a corresponding decision by treating findings
of the ICTY, be they findings of facts or of law, as evidence which
should be evaluated in the light of the legal requirements of the
crime of genocide as defined by the Genocide Convention and

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relevant standards of the legal reasoning established by this Court on
this matter.
   In any event, it appears that the primary duty of the Court in casu lay
in the strict observance of the Convention on Genocide as the relevant
law, both for the sake of legality and for the preservation of the norma-
tive integrity of crimes and offences constituting international criminal
law.
   108. As regards the legality aspect, the competence of the Court in the
case at hand is based on Article IX of the Genocide Convention, which
envisages the solution of disputes between the contracting parties
regarding the “interpretation, application or fulfilment of the present
Convention . . .” (emphasis added). Therefore, not on the basis of the law
on genocide in abstracto, but on the basis of the Convention itself. This
fact is of the utmost importance, if we bear in mind that the law on geno-
cide established by the Convention tractu temporis included certain modi-
fications in terms of progressive development only in the core element of
the crime — both mens rea and actus reus. There is no need to say that
the progressive development, achieved particularly in the jurisprudence
of two ad hoc tribunals, is irrelevant in casu, for in disputes such as this
the Court’s task is to apply the law of genocide as established by the
Convention.

   Such an approach by the Court would also have a collateral positive
effect in terms of the actual judicial policy of the World Court as the judi-
cial guardian of international law, in concreto of its own area, interna-
tional criminal law, for the preservation of the normative integrity of the
international crimes and offences ascertained.

   Indeed an overly broad interpretation of the constitutive elements
of the crime of genocide, made with good, yet extra legal intentions in
the doctrine 105 sometimes appears in the judicial reasoning of the two
tribunals tending to amalgamate the crimes against humanity, and
especially persecution and extermination, and war crimes, even com-
mon human rights offences into genocide as a single umbrella crime,
solely on the basis of their repetition or accumulation. So, counsel of
the Applicant, Professor Stern, is of the opinion that “an accumulation
of crimes against humanity can result in genocide . . .” (CR 2006/7,

  105   Exempli causa,
         “Although it is important to acknowledge rape as a crime against humanity, clas-
      sifying it as genocide is essential in order to prompt state intervention. States are gen-
      erally not required to intervene when there are violations or crimes against humanity ;
      when acts of genocide occur, however, customary international law imposes a duty to
      intervene” (MacKinnon, “Rape, Genocide and Human Rights”, 17 Harvard
      Women’s Law Journal, 1994, p. 5.)

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p. 42, para. 113). We thus come to the phenomenon of the trivialization of
genocide 106.
   The intrinsic meaning of the trivialization of genocide is expressed in
the dilution of the proper legal substance of genocide established by the
Convention, on the one hand, and the ruining of the configuration of
international crimes and offences as autonomous legal notions on the
other.
   In that context, the idea underlying the concept is in conflict with one
of the relevant rules of interpretation — the rule of effectiveness, accord-
ing to which a provision or part of a provision cannot be considered as if
it were superfluous and pointless 107 and also with the principle of nor-
mative economy (économie des notions) for any legal system within the
confines of two concepts of rules that fulfil essentially the same function
or bear divergently on any one situation 108.

   109. The majority of the Court has, however, taken the course that is
both parum et nimium.
   It is parum as regards the approach towards the ICTY jurisprudence
relevant for the determination of the crime of genocide, both in norma-
tive and in legal terms.
   The approach of the majority basically comes down to the treatment of
the said part of the ICTY jurisprudence as a matter that is not subject to
judicial evaluation by the Court, at least not in a substantive sense. As a
consequence, the relevant parts of the Court’s Judgment, and in particu-
lar Part VII, entitled “Responsibility of the Respondent for Srebrenica”,
are in fact a general verification of the relevant part of the ICTY juris-
prudence.
   It appears, however, that the interests of the sound administration of
justice and even the substantive legality of the proceedings, before the
highest international court declared itself competent to deal with accusa-
tions of the crime of genocide, implied a judicial evaluation of the ICTY
findings, perceived as a proper evidence of the relevant matter, and the
standards of legal reasoning applied to the ICTY, both as regards the
applicable law and the conclusions reached.

   The law applied by the ICTY as regards the crime of genocide cannot
be considered equivalent to the law of genocide established by the Con-
vention. In this regard, the jurisprudence of the ICTY can be said to be a
progressive development of the law of genocide enshrined in the Conven-
tion, rather than its actual application. Article 4 of the ICTY Statute is
but a provision of the Statute as a unilateral act of one of the main politi-
cal organs of the United Nations that is, by its wording, reciprocal to

  106 W. Schabas, Genocide in International Law, p. 114.
  107 ICTY, Prosecutor v. Tadić, Appeal Judgment, para. 284.
  108 Ibid., separate opinion of Judge Abi-Saab, p. 2.

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Article II of the Convention. In view of the fact that it does not contain
any renvoi to the Genocide Convention, the provision cannot change its
nature simply by reproducing the text of Article II of the Convention.
Consequently, interpretations of Article 4 of the Statute on the basis of
the travaux préparatoires of the Convention, on which the ICTY amply
draws, are essentially misleading. Both in terms of the actual approach
used and of substance, considering that the rules of treaty interpretation
and interpretation of unilateral acts do not necessarily coincide.

  As stated expressis verbis by the Trial Chamber, the Judgment in the
Krstić case is based on the “customary international law at the time the
events in Srebrenica took place” 109. That fact has two consequences.

   On the one hand, the characterization of genocide in customary inter-
national law as perceived by the ICTY and in the Genocide Convention
is not necessarily identical. On the other, the basis of the jurisdiction nec-
essarily affects the applicable law. Where jurisdiction is based on a com-
promissory clause in a treaty, the Court is empowered only to apply a
specific treaty.
   The legal reasoning of the ICTY is far from consistent. For instance, as
regards the determination of genocidal intent by inference, the reasoning
in the Stakić case, on the one hand, and in the Krstić case on the other,
seems to be in sharp contradiction 110.
   110. The approach of the majority is at the same time also nimium in
terms of the superfluous but is not solidly based.
   Refraining from an autonomous judicial evaluation of the jurispru-
dence of the ICTY, the majority, by a highly risky operation, also ren-
dered more complicated the interpretations of the duty to prevent geno-
cide in legal terms, including the “duty not to commit genocide” by a
State. That operation, bearing in mind the substance of the provisions of
the Convention, could not have been carried out without to some extent
touching upon the legislative or quasi-legislative arena. Even more sur-
prising is the fact that such an interpretation, in certain vital respects,
conflicts with common sense and cogent legal considerations.

  Hence, it would come as no surprise if this interpretation were to
appear as argumentum ad casum.

2. Interpretation of the duties of the Contracting Parties on the basis
   of the Genocide Convention
  111. In contrast to the standard understanding that the Genocide

  109 ICTY, Prosecutor v. Krstić, Trial Judgment, para. 541.
  110 ICTY, Prosecutor v. Stakić, Trial Judgment, para. 553 ; ICTY, Prosecutor v. Brd-
janin, Trial Judgment, paras. 981, 978-979 ; ICTY, Prosecutor v. Krstić, Trial Judgment,
paras. 594-595.

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Convention imposes upon the Contracting Parties as primary duties —
the duty to enact necessary legislation to give effect to the substantive
provisions of the Convention (Art. V) and the duty of instituting legal
proceedings for punishable acts provided by Article III against persons
charged in a competent tribunal of a State in the territory of which the
act was committed (Art. VI), the majority view focused on the duty to
prevent as a complex duty comprising “a duty to act” and “a duty not to
commit” genocide as some sort of mother duty or an umbrella duty in
the context of the Convention.

  Sedes materiae the view could be summarized as follows:

  Prevention is perceived as “the duty to prevent in the Genocide Con-
vention” (Judgment, para. 429). As regards its nature, the duty is one “of
conduct and not one of result, in the sense that a State cannot be under
an obligation to succeed, whatever the circumstances, in preventing the
commission of genocide” (Judgment, para. 430). A State’s duty to pre-
vent is accompanied by the “corresponding duty to act” in the sense of
the duty which
      “arise[s] at the instant that the State learns of, or should normally
      have learned of, the existence of a serious risk that genocide will be
      committed. From that moment onwards, if the State has available to
      it means likely to have a deterrent effect on those suspected of pre-
      paring genocide, or reasonably suspected of harbouring specific
      intent (dolus specialis), it is under a duty to make such use of these
      means as the circumstances permit.” (Judgment, para. 431.)

   Furthermore, the undertaking to prevent includes the obligation not to
commit genocide and the other acts enumerated in Article III considering
that under Article I a Contracting State is bound to prevent such geno-
cidal acts being committed by its organs and persons whose acts are
attributable to it (Judgment, paras. 166-168).
   112. Two issues are raised as regards the view taken by the majority :

(a) what is the proper meaning of “prevention” in criminal law and in
    terms of the Genocide Convention ;
(b) the nature and scope of the “corresponding duty to act” ; and

(c) does there exist a duty of a State not to commit genocide ?

  2.1. The duty to prevent

 113. As regards the issue of prevention, the understanding of the
majority appears to be highly innovative, transcending not only in degree

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but in kind the standards generally accepted in the genus of laws regu-
lating criminal matters.
   In criminal law, either national or international, the prevention of a
crime in terms of the plain and natural meaning of the word “preven-
tion” — an action keeping something from happening or rendering
impossible an anticipated genocidal design — is alien to the very nature
of criminal law. The main function of the Genocide Convention, or
indeed of any other criminal law norm, lies in protection rather than in
prevention. Criminal law, and the Genocide Convention is its part, comes
post factum, when the object of protection has already been damaged,
destroyed or threatened. The protective function of the Genocide Con-
vention does not have the character of direct, actual protection as sug-
gested by the majority perception of prevention. It is of indirect nature
having in mind that it is expressed in deterrence. The protective function
of the Genocide Convention cannot be equalized with prevention of
genocide in terms of legal duty because equalization would mean, inter
alia, a doubt in the need for the existence of the Genocide Convention as
it stands now. Moreover, the determination of the duty to prevent geno-
cide as a distinct legal duty which runs counter to the principle impossi-
bilia nullum obligatio est.
   The duty to prevent genocide is, in fact, a social, moral, even meta-
physical duty, being the goal of social defence action against genocide.
Social defence against genocide is ratione materiae much broader than
the effects of the Genocide Convention itself. It implies a totality of
actions in the social, legal, economic, political and cultural spheres aimed
at eliminating the real causes of genocidal pathology. It is materialized in
the form of national criminal policies as well as the general policy of the
competent United Nations organs, especially those referred to in Arti-
cle VIII of the Convention. In that context it is correct to speak of a duty,
either moral or social, to prevent genocide. However, that appears to be
the criminological concept of the prevention of genocide in the well-
known forms of primary, secondary and tertiary prevention.

   114. The effects of the Convention as regards the prevention of geno-
cide are manifested in general deterrence — in the sense of the general,
normative meaning of the Convention as an international criminal law
norm and its application. The preventive effects of the Convention itself
are also emphasized in the travaux of the Convention. In the commen-
tary by the Secretariat it was pointed out that a law established by the
Convention “tends to deter and prevent actions by persons who might be
tempted to commit a crime” 111.
   The application of the Genocide Convention also produces effects in
terms of special deterrence, ratione personae limited to the perpetrators

  111   United Nations doc. E/447, p. 45.

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of the crime leaving potential perpetrators outside of its scope. In that
regard, it should be pointed out that the application of the provisions of
the Genocide Convention or reciprocal provisions of national criminal
legislations ad casum is not, stricti juris, the prevention of genocide but
its suppression.
   115. The prevention referred to in Article I of the Convention is the
general principle underlying the operative provisions of the Convention
rather than a distinct legal duty. In favour of this determination, as well
as general reasons concerning the nature of criminal law protection
(para. 113 above), there are also specific reasons, which concern the Con-
vention itself.
   The undertaking by the Contracting Parties to prevent genocide, stipu-
lated in Article I in fine, should be read in connection with the subject
and purpose of the Convention, and not in isolation.
   The preamble of the Convention states, inter alia, that :
        “The Contracting Parties
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
        Being convinced that, in order to liberate mankind from such an
      odious scourge, international co-operation is required . . . Hereby
      agree as hereinafter provided.” (Emphasis added.)
   “International co-operation” in the particular context can hardly mean
anything else but the defence of the international community against
genocide. The Genocide Convention is a proper legal expression and the
ingredient of overall international co-operation in the struggle against the
odious scourge of genocide.
   The essential role of international co-operation in the area of the pre-
vention of genocide is confirmed both in the text of the Convention and
in the travaux préparatoires.
   Article VIII of the Convention referring to the possibility of preventive
action by the United Nations called upon by the Contracting Parties “is
the only Article in the Convention . . . which deals with the prevention of
that crime” 112. As the Convention
      “creates no independent treaty body with responsibility for [its]
      implementation, it appears that in the area of prevention, the only
      hint of a mandate is that accorded to the ‘competent organs of the
      United Nations’, pursuant to Article VIII” 113.

  In substantive terms, Article VIII merely expresses, normatively, the
essence of the travaux préparatoires in that regard.
  In the Commentary by the Secretariat it is stated, inter alia, that :

 112 N. Ruhashyankiko, op. cit., para. 304, p. 79 ; Revised and Updated Report on the

Question of the Prevention and Punishment of the Crime of Genocide, prepared by
Mr. B. Whitaker, doc. E/CN.4/Sub.2/1985/6 (2 July 1985), para. 66, p. 36.
 113 W. Schabas, Genocide in International Law, 2000, p. 448.

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        “if preventive action is to have the maximum chances of success, the
        Members of the United Nations must not remain passive or indif-
        ferent. The Convention for the punishment of crimes of genocide
        should, therefore, bind the States to do everything in their power to
        support any action by the United Nations intended to prevent or stop
        these crimes.” 114
  The proposal by the United States of America was similar :
          “The High Contracting Parties . . . agree to concert their actions
        as such Members to assure that the United Nations takes such action
        as may be appropriate under the Charter for the prevention and sup-
        pression of genocide.” 115

  The position of the USSR might be summarized as follows :
           “Any act of genocide was always a threat to international peace
        and security and as such should be dealt with under Chapters VI and
        VII of the Charter . . . Chapters VI and VII of the Charter provided
        means for the prevention and punishment of genocide, means far
        more concrete and effective than anything possible in the sphere of
        international jurisdiction . . .” 116
   The practice of the competent organs of the United Nations as regards
the prevention of genocide developed within the framework of the rules
provided in Article VIII of the Convention 117.
   116. The duty to prevent genocide in legal terms is one thing, and the
legal duty to take preventive measures in that regard is another.

  If the duty to prevent is defined in legal terms, then the bearer of the
duty is in the position of guarantor, so that, by the very commission of
genocide the bearer is held responsible. Preventive measures are, for that
matter, different in nature.
  They can be perceived in a broader or a narrower sense.

  In a broader sense, they imply positive measures such as the creation of
a social and cultural environment that per se excludes or reduces to a
minimum the creation of genocidal pathology.

  In a narrower sense, they can be reduced to acts which, although not
constituting actions of commission and, as a rule, not being incriminated,
facilitate or make possible the commission of genocide i.e., preparatory
acts.

  114 United Nations doc. E/447, pp. 45-46.
  115 Basic Principles of a Convention on Genocide, United Nations doc. E/AC.25/7 ;
emphasis added.
  116 United Nations doc. A/C.6 SR.101 ; emphasis added.
  117 W. Schabas, Genocide in International Law, 2000, pp. 453-479.

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   The Secretariat’s draft Convention on the Crime of Genocide con-
tained incrimination of the following preparatory acts :
       “(a) studies and research for the purpose of developing the tech-
            nique of genocide ;
        (b) setting up installations, manufacturing, obtaining, possessing
            or supplying of articles or substances with the knowledge that
            they are intended for genocide ; and
        (c) issuing instructions or orders, and distributing tasks with a
            view to committing genocide.” 118
  The proposal, however, was not accepted, probably following the pre-
vailing practice of national criminal laws not to criminalize acts which
are not, from the legal point of view, acts of perpetration, actus reus, of
the criminal act of genocide. Hence, as noted by the learned author, “the
concept of punishing acts preparatory to genocide seems to have been
forgotten by both international and domestic lawmakers”, so there is
nothing “to authorize criminal repression of acts preparatory to genocide
until they reach the threshold of attempts” 119.

   But probably for the sake of balance the Convention has introduced
the criminalization of acts, direct and public incitement to commit geno-
cide or the attempt to commit genocide.
   In contrast to the Genocide Convention, some international conven-
tions contain a limited or extensive spectrum of preventive measures,
either in a broader or narrower sense or combined. For instance, Arti-
cle 2 of the International Convention on the Elimination of All Forms of
Racial Discrimination (1965), Articles 3 and 4 of the Convention against
Discrimination in Education (1960) ; Articles 1, 3 and 8 of the Supple-
mentary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery (1956) ; Articles 2 and 3 of
the Discrimination (Employment and Occupation) Convention (1958).

   There is a substantial difference between the duty to prevent in legal
terms on the one hand, and the preventive measures defined by the rules
of a convention on the other. While breach of the legal duty to prevent
entails the responsibility of the offender in terms of criminal law, the
effect of a breach of the duty to undertake the preventive measures stipu-
lated is equivalent to a treaty violation, except where it assumes the char-
acteristics of a criminal offence, such as exempli causa, complicity or
co-perpetratorship.
   117. The majority view as regards the scope ratione personae of the
supposed legal duty to prevent genocide appears to be highly problem-

 118   United Nations doc. E/447, p. 29.
 119   W. Schabas, Genocide in International Law, 2000, pp. 490-491.

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atic. It is based on drawing qualitative distinction between the effects of
the expression “undertake to prevent” in fine of Article I on the one
hand, and Article VIII of the Convention on the other. While the expres-
sion “undertake to prevent”, is perceived as imposing a “distinct” and
“direct obligation [of the Contracting Parties] to prevent genocide” (Judg-
ment, para. 165), it sees the effects of Article VIII in “completing the sys-
tem by supporting both prevention and suppression, in this case at the
political level rather than as a matter of legal responsibility” (Judgment,
para. 159 ; emphasis added). In a word, the Convention imposes on the
Contracting Parties the legal duty to prevent genocide and on the com-
petent organs of the United Nations referred to in Article VIII of the
Convention — a social or political duty to prevent genocide.

   Such a duality of the duties is hard to reconcile with the nature of the
Genocide Convention. The Convention enshrines rights and obligations
of an erga omnes character (I.C.J. Reports 1996, para. 31), and belongs
to corpus juris cogentis. As such it represents a normative expression of
substantive, fundamental interests of the international community as a
whole, interests which transcend the interests of States taken individually.
If genocide “shocks the conscience of mankind and results in great losses
to humanity, and which is contrary to moral law and to the spirit and
aims of the United Nations” (resolution 96 (I) of the General Assembly,
11 December 1946 ; I.C.J. Reports 1951, p. 23 ; I.C.J. Reports 1996,
p. 616, para. 31), it is unclear how the Contracting Parties and the com-
petent organs of the United Nations, the only ones singled out in that
regard in Article VIII of the Convention dealing specifically with the pre-
vention issue, can be placed in a fundamentally different legal position as
regards the prevention of genocide. A fortiori, bearing in mind that, as a
rule of jus cogens it should be overriding and absolutely binding in
character.

   As regards its peremptory nature, it is unclear how a duty that, by defi-
nition, has absolute obligatory force and, as such, knows no alternatives
or conditions, can be designed in terms of a duty “to take all measures to
prevent genocide which were within its power” (Judgment, para. 430) not
being “under an obligation to succeed, whatever the circumstances, in
preventing the commission of genocide” (ibid.). Thus perceived, it is the
duty to act in order to prevent genocide as far as possible rather than the
duty to prevent. A duty to prevent that is contingent on a host of factual
legal requirements can hardly claim the status of a peremptory norm.

  Furthermore, does this imply — bearing in mind that, according to the
majority view, the duty to prevent includes the obligation not to commit
genocide and other acts enumerated in Article III of the Convention —
that the organs of the United Nations are not bound in legal terms by the

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obligation not to commit genocide and other punishable acts under the
Convention? Or, pursuing the logic underlying the majority view at step
further if, ex hypothesi, the United Nations were to commit genocide,
would that Organization, in contrast to a State, not be directly responsi-
bility ?
   But, apart from the aforementioned controversies involved, it seems
clear that the very pronouncement that Article VIII completes “the sys-
tem by supporting both prevention and suppression, in this case at the
political level . . .” (Judgment, para. 159) is, by itself, an argument in
favour of the social and political nature of the duty to prevent.
   118. Article VIII, as the only operative provision of the Convention
concerning the prevention of genocide, has two legal meanings depending
on the circumstances :
(i) in case of suspected genocide on the territory of a State, whether or
    not a Member of the United Nations, the objection that the matter
    essentially falls within domestic jurisdiction in terms of Article 2 (7)
    of the Charter is not acceptable ;

(ii) as regards action by the competent organs of the United Nations, the
     parties are under an obligation to do everything in their power to
     give full effect to the actions of the United Nations.
   119. Controversies in the majority view regarding the nature of pre-
vention spread with remarkable ease.
   If, arguendo, the prevention of genocide exists as a legal duty, then its
perception as the “obligation . . . of conduct and not . . . of result” (Judg-
ment, para. 430), is contradiction in adiecto, because it transforms the
duty to prevent into the duty to act with no prevention as a result. The
plain and natural meaning of the term “prevention” lies in the action of
keeping from happening or rendering impossible an anticipated geno-
cidal design. Hence, the prevention should be ex definitione an action of
result.
   True, the majority perception of the duty to prevent is accompanied by
the “corresponding duty to act” but this additional element is of dubious
validity.

  2.2. Corresponding duty to act
   120. As regards its existence, the “corresponding duty to act” appears
to be a pure creation of the so-called judicial legislature, having no trace
whatsoever either in the text of the Convention or in its travaux prépara-
toires. As such it is a demonstration of a revision of the Convention
rather than its proper interpretation.
   In abstracto, the common denominator of two reasonable aims of the
introduction of a “corresponding duty to act” is the nullification of the
existence of the legal duty to prevent genocide in its real and genuine
meaning.

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   One aim could be to confer active force or a sort of enforcement capac-
ity on the duty to prevent. If, however, the prevention of genocide is a
distinct legal duty, then any “corresponding duty to act” is superfluous.
In that sense, the “corresponding duty to act” in fact deprives the sup-
posed legal duty to prevent of its own normative content and turns it into
a general legal principle.
   The other aim would be to serve as a means of transforming the pre-
vention in its original and accepted meaning into a relaxed and soft form
of using the available means as circumstances permit. Thus, the duty to
prevent would be shifted towards the duty to act with an uncertain out-
come as regards prevention on the basis of a broad and undefined crite-
rion more suited to civil than to criminal law.
   121. The majority view has not escaped certain terminological prob-
lems either. If the duty to prevent also includes the duty not to commit
genocide, then the term does not seem adequate, at least in relation to
this part of the prevention, because it would in effect mean “self-preven-
tion”. The term, however, appears to be devoid of any meaning in this
particular context, as how one can self-prevent oneself in legal terms, act-
ing simultaneously as Dr. Jekyll and Mr. Hyde ?

   If understood as a legal duty, the failure to prevent genocide would
belong to the category of criminal offences through the omission to act.
For the omission to act to have any meaning, it must have as its object a
criminal offence defined in terms of failure to act. As the Model Penal
Code expressly states, liability may be based on an omission when “the
omission is expressly made sufficient by the law defining the offence”
(para. 2.01(3)). The Genocide Convention, however, not only does not
impose the duty to act in concreto, it is a matter of the creative interpreta-
tion of the majority — but it has not even included the omission to act in
the exhaustive determination of punishable acts in its Article III.

  It follows, consequently, that the judicial creation of the duty to pre-
vent, including a “corresponding duty to act”, has been created ad exem-
plum legis, in the manner which preceded the constitution of the principle
of legality as the common heritage of modern criminal law. For in order
for the construction of the legal duty to prevent genocide to be able to
serve as a basis for responsibility at all, it was necessary to have, albeit
only tacit, judicial creation of the criminal offence of the failure to act. In
that way, the majority view, if anything came dangerously close to the
very heart of the principle nulla crimen sine lege.
  The stringent requirements of legality immanent in criminal law do not
tolerate creative, extra-textual interpretations, in particular those which
are conducive to the creation of new criminal offences or the expansion
of the essence of criminal offences or of any of the constitutive elements
of criminal offences. Consequently, the interpretation of the Genocide
Convention, as a criminal law treaty must, in principle, be more restric-

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tive and related to the text of the Convention than the interpretation of
other international treaties.
   122. The duty “not to commit genocide” is, according to the majority
view, included in the duty to prevent, perceived as a complex norm, as
some kind of umbrella norm in the context of the Convention.

   Leaving aside the perception of it as a complex norm from the stand-
point of responsibility, the least one can say from a structural point of
view is that it is not a coherent construction both in terms of legal tech-
nique and substance.
   From the standpoint of legal technique it is unusual for the parts of the
complex norm to be defined in different ways. While the duty “not to
commit” has been defined in a negative way, the duty to prevent, as the
mother norm, and the “corresponding duty to act”, have been defined in
a positive way.
   As regards its substance, the complex rule of prevention, as perceived
by the majority, would consist of a variety of obligations. On the one
hand, the obligations which concern prevention as such — the duty to
prevent and the corresponding duty to act — on the other, the duty “not
to commit genocide”, which concerns the very notion of genocide i.e., its
perpetrator element.
   The heterogeneous nature of the obligations constituting the duty to
prevent signifies the artificial nature of the construction, tailored to the
purpose. It becomes even more striking if observed in the context of the
corresponding offences. As a breach of any duty in terms of criminal law
constitutes a criminal offence, in the case at hand we would be dealing
with an utterly unusual complex criminal offence (infraction complexe ;
zusammengesetztes Verbrechen) comprised of diverse offences. Thus,
exempli causa, the perpetration of one act of genocide by a State would
produce two consequences within the context of a single complex rule —
a breach of the duty “not to commit genocide” would, at the same time,
mean a breach of the duty to prevent or, more precisely, the duty to self-
prevent, with the accompanying “corresponding duty to act”.

      2.2.1. Application of the duty to prevent in casu

  123. Even if, for the sake of argument, the existence of the legal duty
to prevent is accepted, its application as regards the Respondent seems to
be erroneous.
  The arguments on the basis of which the majority concluded that the
Respondent “violated its obligation to prevent the Srebrenica
genocide . . .” (Judgment, para. 438) are :
 (i) that the FRY “was in a position of influence over the Bosnian
     Serbs . . . unlike that of any of the other States parties to the Geno-
     cide Convention . . .” (Judgment, para. 434) ;
(ii) that the FRY “could hardly have been unaware of the serious risk of

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      it [the genocide] once the VRS forces had decided to occupy the Sre-
      brenica enclave” (Judgment, para. 436) ;
(iii) that the Respondent has not shown “that it took any initiative to
      prevent . . .”, the inference being “that the organs of the Respondent
      did nothing to prevent the Srebrenica massacres . . .” (Judgment,
      para. 438).

It must be conceded that not one of the arguments put forward seems
convincing.
   As far as the first argument is concerned, it seems to be based on a
certain confusion between notions of “influence” and “power” and their
effects in the area of prevention of genocide.
   “Influence” as such can hardly be a means of preventing genocide. As
a form of indirect power, it could prompt self-prevention action by the
alleged perpetrator, but per se is incapable of preventing genocide. This is
particularly the case where the alleged genocidal intent appeared in an
apparently spontaneous way during an operation which lasted a few
days. As a means of triggering self-restraint or self-prevention, influence
requires a considerably longer time than the duration of the operation in
the course of which a massacre was committed.

   The reasoning of the majority contemplates actions above the influence
in terms of factual and legal power which the Respondent have had in
relation to the given event.
   The majority attributes critical importance to the notion of “due dili-
gence” in assessing whether a Contracting Party acted in a proper way.

   It appears, however, that the notion of due diligence is of little, if any,
help in concreto. Due diligence, as demonstrated in the jurisprudence of
the Court in Corfu Channel (United Kingdom v. Albania) and United
States Diplomatic and Consular Staff in Tehran (United States of
America v. Iran) cases, operates primarily as regards objects under sov-
ereignty or effective control of the State to which lack of due diligence is
imputed. As the Court found out, the Respondent did not exercise effec-
tive control over the given territory (Judgment, para. 413).

   Moreover, measures which a State would have to take in order to
avoid getting itself into a situation where it would be charged with lack of
due diligence are difficult if not impossible to take while observing the
limits permitted by international law as regards the territory of another
State.
   It is interesting to note that in the passage devoted to the responsibility
of the State in paragraph 438 of the Judgment, for breaching the obliga-
tion to prevent, the general word “influence” is replaced by the word
“power”. It is unclear whether this is a matter of linguistic inconsistency
in the text or of an expression of argumentum ad casum.

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   The view that influence of itself constitutes an element of responsibility
based on the omission to act is, perhaps, a borrowing from the law of
command responsibility. As such, it is totally inapplicable in the area of
prevention in the circumstances of the case at hand, bearing in mind,
inter alia, that, as regards command responsibility, influence is exerted on
a person over whom effective control is also exercised. Incidentally, it
also demonstrates an uncritical application of the analogy with criminal
law. For with the exception of cases of analogia legis, i.e., one established
by the legal rule itself, analogies with criminal law cannot be considered
acceptable in the light of the principle of legality.

   The second argument essentially concerns awareness of the general risk
of genocide, considering that, as was concluded, “it [the Court] has not
found that the information available to the Belgrade authorities indi-
cated, as a matter of certainty, that genocide was imminent . . .” (Judg-
ment, para. 436). The tragic truth is, however, that in civil wars, particu-
larly in those where the lines of military demarcation coincide to a high
degree with ethnical or religious ones, the risk of ethnically motivated
crimes, including genocide, is always high and serious. It is simply inher-
ent in this kind of war.

   Hence, in the construction termed prevention as a legal duty, aware-
ness of the imminent danger of genocide seems more proper as the basis
for action. Especially considering that the general risk of genocide, in
light of its frequency in civil wars, in fact shifts the emphasis from pre-
ventive actions to the prevention of civil wars. And that is actually the
primary prevention of situations leading or likely to lead to genocide,
prevention in a criminological or social defence sense, and not prevention
in terms of a legal duty.

  And finally, the argument that the Respondent has not shown that “it
took any initiative to prevent . . .” is not without difficulties as regards
both facts and law.
  As regards facts, it appears that the Respondent submitted evidence to
the effect that Milošević instructed Karadžić that it would be a mistake
to take Srebrenica, because there could well be a massacre due to prior
events at Bratunac 120. In addition, as noted by Lord Owen :

         “I had rarely heard Milošević so exasperated, but also so worried :
      he feared that if the Bosnian Serb troops entered Srebrenica there
      would be a bloodbath because of the tremendous bad blood that
      existed between two armies. The Bosnian Serbs held the young Mus-
      lim commander in Srebrenica, Naser Orić, responsible for a massa-

 120 Dutch Srebrenica Report, Part II, Chap. 2, Sect. 5 : footnote as “Confidential Infor-

mation 43”.

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        cre near Bratunac in December 1992 in which many Serb civilians
        had been killed.” 121

  What President Milošević said to Lord Owen, in his capacity as
Co-Chairman of the Steering Committee on the Former Yugoslavia, should
be understood as a warning of a risk of a massacre in Srebrenica.

  The warning, together with the instruction given to the President of
Republika Srpska, Karadžić, considering that “every State may only act
within the limits permitted by international law” (Judgment, para. 430),
seems the only thing the Respondent could do in the circumstances.

   It should be noted that in the Corfu case Albania was declared respon-
sible because it “neither notified the existence of the minefield, nor
warned the British warships of the danger they were approaching” (Corfu
Channel, Merits, Judgment, I.C.J. Reports 1949, p. 22). If however, the
failure to warn was a basis for holding Albania responsible for the event
that occurred in its territory, then it is unclear how President Milošević’s
warning does not represent fulfilment of the duty to act, as the warning
was in fact the only possible preventive action as regards the territory of
the other State. In addition, the application of the anticipated duty to
prevent in casu requires an additional condition of causality i.e., that the
alleged failure to act caused the massacre. The condition was neither
proved nor implemented in the Judgment.

   124. Considering the primary responsibility of the competent organs
of the United Nations in the area of genocide prevention, as enshrined in
Article VIII of the Convention, the concern expressed by the European
Union negotiator, Mr. Bildt, to President Milošević, to which the Judg-
ment particularly draws attention (Judgment, para. 436) hardly has any
relevance in casu being a pure demonstration of humanitarian concern.
As a possible warning by the representative of the organized interna-
tional community which had a proper factual power and legal capacity to
act, moreover, whose military units, on the basis of United Nations Secu-
rity Council resolution, were under a legal obligation to secure the safe-
area of Srebrenica, addressed to the head of State which, according to the
finding of the Court (Judgment, para. 413), had no effective control over
given territory, having no, in addition, factual power comparable to that
possessed by the organized international community, can hardly have an
excusable character tacitly suggested by the wording of the formulation.
(A qualitatively different conclusion would impose itself only if the
authority of the competent international body were delegated to Presi-
dent Milošević on that occasion in due course to act on the territory of

  121   Lord Owen, Balkan Odyssey, 1995, pp. 134-135.

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Bosnia and Herzegovina with the aim of preventing the massacre in
Srebrenica.)

  125. The argument which was also put forward concerns the Orders of
the Court of 8 April 1993, as well as of 13 September 1993, by which the
Court indicated provisional measures to the effect that the “FRY was
bound by very specific obligations by virtue of the two Orders indicating
provisional measures” (Judgment, para. 435).
  Two observations can be made regarding the specific finding of the
majority.
  Primo, the binding character of the Order indicating provisional meas-
ures was articulated as late as the LaGrand case (I.C.J. Reports 2001,
p. 503, para. 102). Until that case the position of the Order indicating
provisional measures as regards its binding force could not have been
considered settled. That fact is confirmed by the Order of 13 Septem-
ber 1993 itself. Paragraph 58 of the Order refers to its previous finding in
the Nicaragua case that : “When the Court finds that the situation requires
that measures of this kind should be taken, it is incumbent on each party
to take the Court’s indication seriously into account . . .” (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I.C.J. Reports 1986, p. 144,
para. 289) and stated “this is particularly so in such a situation as now
exists in Bosnia-Herzegovina . . .” (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide, Provisional Meas-
ures, Order of 13 September 1993, I.C.J. Reports 1993, p. 349).

  Secundo, the argument is not a proper one, since the Orders strongly
suggest that it is in fact about an interim judgment par excellence. The
Orders open
      “practically unlimited, ill-defined and vague requirements for the
      exercise of responsibility by the Respondent in fulfilment of the
      Order of the Court, and lay the Respondent open to unjustifiable
      blame for failing to comply with this interim measure” (Application
      of the Convention on the Prevention and Punishment of the Crime of
      Genocide, Provisional Measures, Order of 8 April 1993, I.C.J.
      Reports 1993, declaration of Judge Tarassov, pp. 26-27).
   What is even more striking is that the measures were indicated in the
proceedings phase allowing the Court “to entertain a provisional and
merely prima facie idea of the case” (Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom),
Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992,
p. 33). The narrow line between such provisional measures and the sub-
ject-matter of the case placed the Court in a position of making an estop-
pel in terms of the alleged facts presented by a party.

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   In fact, the Orders, dealing with the events during the civil war in Bos-
nia and Herzegovina, for the first time used the qualification “genocide”.
The word “genocide” appeared in Security Council resolutions for the
first time on 16 April 1993 when the Council took note of the Order of
8 April 1993 122. Even the resolution creating the ad hoc Tribunal for the
former Yugoslavia of 8 May 1993 did not refer to genocide.

   The authority of the Court is obviously tremendous, but it would be
appropriate for the Court to strike a balance between its authority and its
responsibility in each particular case. Judicial caution and strict observ-
ance of its competencies in every phase of the dispute are conducive not
only to the desirable but also necessary balance between judicial author-
ity and judicial responsibility. Otherwise, there is a danger of the abuse of
the judicial function.

  2.3. The duty not to commit genocide
  126. According to the majority view, the duty not to commit is an
implied duty, “necessarily implie[d]” by the obligation to prevent (Judg-
ment, para. 166).
  The reasoning behind this view is that
          “That obligation [to prevent] requires the States parties, inter alia,
        to employ the means at their disposal . . . to prevent persons or
        groups not directly under their authority from committing an act of
        genocide or any of the other acts mentioned in Article III. It would
        be paradoxical if States were thus under an obligation to prevent, so
        far as within their power, commission of genocide by persons over
        whom they have a certain influence, but were not forbidden to com-
        mit such acts through their own organs, or persons over whom they
        have such firm control that their conduct is attributable to the State
        concerned under international law.” (Judgment, para. 166.)

   The antecedent question in that regard is whether the duty of a Con-
tracting Party to the Convention, of a criminal law nature, can be
imposed by implication?
   The answer is if anything negative rather than positive. The interpreta-
tion according to which the duty not to commit genocide is necessarily
included within the undertaking to prevent, irrespective of the way in
which, rightly or wrongly, prevention is perceived, is a demonstration of
an impermissibly extensive interpretation of the Convention. Moreover,
it runs counter to the very heart of the principle of legality in interna-
tional criminal law. There is no reason for recourse to an extensive inter-

  122   United Nations doc. S/Res/819, 1993.

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pretation of the perpetrator of genocide. The provisions of the Conven-
tion are quite clear in that regard. The terms used in Articles II-VIII of
the Convention are clear on the meaning of the provisions of the Conven-
tion (lex dixit minus quam voluit), which determine physical persons as
the only perpetrators of genocide, so that there are no grounds whatso-
ever for having recourse to an extensive interpretation.
   127. All the more so, as in the case in concreto, by extra-textual inter-
pretation ignoring and nullifying the intention of the Contracting Parties
clearly expressed in the text of the Convention and confirmed by the
travaux préparatoires. In this way the interpretation well exceeds the per-
missible interpretative framework.
   The consequence of this would be the imposition of a new obligation
upon the Contracting Parties in contradiction with the general principle
of international law that the duty of a State cannot be presumed but must
be unequivocally established, stressed in particular in the area of interna-
tional criminal law in the light of the strict requirement of nulla crimen
sine lege.

   It is rather about re-writing the Convention, by importing an extrane-
ous duty alien to the intention of the Contracting Parties, than its inter-
pretation properly speaking.
   Reference to the object and purpose of the Convention, coupled with
reliance on the principle of effectiveness, does not seem convincing. It is
designed in an abstract manner, based merely on particular phrases “pre-
vention of genocide”, detached from the Convention as a whole (see
Competence of the ILO in Regard to International Regulation of the Con-
ditions of Labour of Persons Employed in Agriculture, Advisory Opinion,
1922, P.C.I.J., Series B, No. 2, p. 23). The principle of effectiveness does
not seem to be properly interpreted in that regard either, or is not appli-
cable as its effects are essentially negative and it is not per se sufficient as
a basis for a proper interpretation of the purpose of the Convention.
   128. The majority view is, it appears, based on a certain confusion
between the commission of the crime, i.e., the position of the perpetrator
of the crime of genocide and responsibility for its commission.

   When it is a matter of States or other legal entities, the status of the
perpetrator of a crime may be one thing and criminal responsibility for
the crime another.
   The obligation of a Contracting Party not to commit genocide is, in
fact, a determination in negative terms that a State is a possible perpe-
trator of genocide.
   This determination is strange to say the least. Because it does not take
into account what is known as genus proximus of any crime, including
the crime of genocide.
   Any crime is essentially a physical act or omission accompanied by a
guilty mind and as such cannot be committed by entities like States, hav-

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ing neither body capable of undertaking physical, corporal acts nor its
own will. It is an axiomatic matter that also produces real consequences
in the criminal law area.

   That a State, like any other legal entity, can be held liable in terms of
criminal law for crimes committed by physical persons, is another matter.
The criminal responsibility of legal persons is, however, fictional in con-
trast to the real criminal responsibility of natural persons. It is estab-
lished as a legal fiction (fictio legalis) in the form of a specific legal norm.

   A modern offshoot of this legal fiction, developed as far back as
canonic and mediaeval law under the influence of Bartolus, is municipal
corporate criminal liability based either on the identification of acts of
certain natural persons with corporate acts or imputation as a form of
vicarious liability.

   It seems that, for the majority view, corporate criminal responsibility
has served as a basis for analogy. If so, this approach is completely erro-
neous. Analogy, as a form of interpretation, has only minor application
in criminal law, even under the condition that it remain intra legem i.e.,
only if a new rule is not created, which is exactly the case in concreto.

   But far more important is another aspect. Corporate criminal respon-
sibility, as a legal fiction, is established in national criminal laws by a spe-
cific legal rule. Such a legal rule is not known to the Genocide Conven-
tion or to positive international law, either.

   However, this does not mean that the criminal responsibility of States
or international organizations will not in future have a place in positive
international law. But the Court “as a court of law, cannot render judg-
ment sub specie legis ferendae, or anticipate the law before the legislator
has laid it down” (Fisheries Jurisdiction (United Kingdom v. Iceland),
Judgment, I.C.J. Reports 1974, pp. 23-24, para. 53 ; Fisheries Jurisdiction
(Federal Republic of Germany v. Iceland), Judgment, I.C.J. Reports
1974, p. 192, para. 45).
   129. As regards the responsibility of a State for the commission of
genocide, the majority view is not free from legal difficulties either. They
are of two kinds.
   Primo, if a State as a person is capable of committing genocide,
then the criminal responsibility of the State as a perpetrator is a
natural and inevitable consequence. The Judgment, however, speaks
only of the “responsibility” or the “international responsibility”
of a State in that regard, which is certainly not irrelevant in
the context of the meaning of the expression “responsibility of a
State”.
   Secundo, the basis for the responsibility of a State for genocide com-
mitted is determined in an unclear and contradictory manner.

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   If, arguendo, a State is a potential perpetrator of genocide, then its
criminal responsibility is original and genuine.
   According to the majority, however,
      “if an organ of the State, or a person or group whose acts are legally
      attributable to the State, commits any of the acts proscribed by Arti-
      cle III of the Convention, the international responsibility of that
      State is incurred” (Judgment, para. 179).
The responsibility of a State is, consequently, based on acts of the organs
of the State or a personality or group which have committed the prohib-
ited acts listed in Article III of the Convention and which are legally
attributable to the State. Attribution as a legal operation seems unneces-
sary if the responsibility of the State for genocide is original and genuine,
as implied by the determination of the State as a possible perpetrator.

  2.4. The duty to punish

   130. Some elements of the reasoning of the majority as regards com-
pliance with the duty to punish by the Respondent, are formulated in a
manner which, with respect to the standards of judicial reasoning, coin-
cides in too high a degree with the demands of some international politi-
cal institutions and some States addressed to the Respondent. It acted, in
concreto, as a principal judicial organ in the formal rather than the sub-
stantive sense 123.
   That high degree of coincidence relating primarily to the findings of
the Court with the political demands addressed to the Respondent is con-
spicuous in particular in paragraph 449 of the Judgment.
   Instituting a proper proceeding against persons accused of genocide is
one thing, but the duty to punish such persons is quite another. It is par-
ticularly striking that the majority passed in silence over this difference
affecting the very substance of the fundamental principle of presumption
of innocence.
   Furthermore, the question is posed whether the Respondent “failed to
punish” at all having in mind the assumed international obligations as
regards persons indicted by the ICTY.
   It is a matter of public knowledge that Presidents Izetbegović, Miloše-
vić and Tudjman, at the meeting held in Rome from 17 to 18 February
1996, convened by the then European Union President, S. Agnelli, at
which, in addition to the three presidents, also participated United States
Assistant Secretary of State R. Holbrooke, High Representative C. Bildt,
IFOR Commander Admiral L. Smith, Commander of the United States
forces General Joulwan and others, undertook to :

  123 On the difference, see Shabtai Rosenne, The Law and Practice of the International

Court, 1920-2005, I, p. 107.

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      “Persons other than those already indicted by the International Tri-
      bunal, may be arrested and detained for serious violations of inter-
      national humanitarian law only pursuant to previously issued order,
      warrant or indictment that has been reviewed and deemed consistent
      with international legal standards by the International Tribunal.
      Procedures will be developed for expeditious decision by the Tribu-
      nal and will be effective immediately upon such action.” 124

Consequently, the Respondent was not in a legal position to sentence
anyone for genocide so far, nor did the Applicant, either. In October
2004, Prosecutor Carla del Ponte completed scrutinizing the applications
submitted in Bosnia and Herzegovina and, within the framework of the
completion strategy of the ICTY, handed to the Government of BiH to
be prosecuted or in which criminal proceedings can be instituted 125.

   To charge the Respondent with lack of co-operation with the ICTY on
the basis of the fact that one of the indicted persons has not been
arrested, and in the absence of credible evidence that he is on the
Respondent’s territory, runs counter to the principle that negative facts
are not subject to being proved in the judicial proceedings. In particular,
if it is borne in mind that the Respondent, either by arresting or by hand-
ing over the indicted individuals who gave themselves up voluntarily,
clearly demonstrated its attitude to the matter. I am of the opinion that a
State that delivered to the ICTY in the described way 37 indicted indi-
viduals, including almost the complete political and military leadership,
could hardly be accused of lack of co-operation in terms of a proper judi-
cial reasoning.
   A kind of formulation resembling those contained in the communiqués
of international institutions could be also found in a part of the dispositif
relating to the particular question. It is stated therein, inter alia, that the
Respondent shall immediately take effective steps in order “to transfer
individuals accused of genocide and any of the other acts prescribed by
Article III of the Convention”, although it is a matter of public know-
ledge that these persons have not been arrested.

  In addition, there is the question as to whether the ICTY can be
considered an “international penal tribunal” within the meaning of
Article VI of the Convention.
  The enthusiastic “definitely — yes” is accompanied by a not very con-
vincing explanation :

        “The notion of an ‘international penal tribunal’ within the mean-

 124 Rome communiqué, Sect. 5, on “Cooperation on War Crimes and Respect for

Human Rights”, http://www.barns-dle.demon.co.uk/bosnia/mostar.html.
 125 http://www.un.org/icty/glance-e/index.htm.

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      ing of Article VI must at least cover all international criminal courts
      created after the adoption of the Convention . . . of potentially
      universal scope, and competent to try the perpetrators of genocide or
      any of the other acts enumerated in Article III. The nature of the
      legal instrument by which such a court is established is without
      importance in this respect.” (Judgment, para. 445 ; emphasis added).

   Having no intention to concern ourselves with the issue substantively,
we cannot help asking how it is possible that “[t]he nature of the legal
instrument [is] . . . without importance” without a previous assessment of
whether the Security Council resolution is a legal instrument stricto sensu
or something else, or that “Article VI must at least cover all international
criminal courts created . . .” without the qualification that the “creation”
should be in accordance with international law.

   In fact, any interpretation conducive, directly or indirectly, to the
legitimization or de-legitimization of the ICTY probably does not accord
with the judicial caution dictated by the specific circumstances of the
establishment of the ICTY on the one hand, and the contentious nature
of the present proceedings on the other.
   And, if the intention of the Court was to address the issue substan-
tively in the sense of whether the ICTY is a legally established and com-
petent international criminal court in the terms of Article VI of the Con-
vention or is a judicial body based on selective and vindictive justice, then
the Court should have evaluated all the relevant arguments pro et contra
in order to arrive at the proper conclusion.
   For the issue of the legality of the ICTY has even now not been solved
in a judicially meritorious way. The only judicial pronouncement on the
matter — that of the ICTY itself in the Tadić case 126 — can hardly be
taken as meritorious in the light of the fundamental principle of nemo
iudex in causa sua.

3. Responsibility issue

  3.1. The Convention and the issue of responsibility

  131. The wording “responsibility of a State for genocide or for any
of the other acts enumerated in Article III” is abstract and broad
in its vagueness, particularly in terms of the Convention on Criminal
Law.

   126 Decision on the Defence Motion on Jurisdiction, 10 August 1995, paras. 1-40 ; Deci-

sion on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995,
paras. 26-48.

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  In international law the term “responsibility” 127 may, and is indeed,
used lato sensu and stricto sensu.
  Perceived lato sensu, responsibility takes several forms :
 (i) Responsibility in the ordinary sense, meaning that the author of an
     act bears its consequences. As an illustration, one may mention the
     position of Judge Anzilotti in the Polish Agrarian Reform case
     (Interim Protection) when saying that “a government should bear
     the consequences of the wording of a document for which it is
     responsible” (Order of 29 July 1933, P.C.I.J., Series A/B, No. 58,
     p. 182 ; emphasis added)
(ii) Moral or political responsibility. It implies that the author of an act
     has a moral or political obligation to repair prejudicial consequences
     that the act has produced to other persons. Exempli causa, the Ger-
     man–United States Mixed Claims Commission (1922) held that
     “Germany’s responsibility for all loss and damage suffered as a con-
     sequence of the war — [is] a moral responsibility” (Administrative
     Decision No. II (1923), para. 5, p. 15. Emphasis of the Commission ;
     also, Russian Indemnity case (1912), 1 HCR, p. 547).

(iii) Responsibility in legal terms. This meaning could be taken as signi-
      fying responsibility stricto sensu. But “responsibility in legal terms”
      or “legal responsibility” is rather a general expression than a precise
      qualification. It includes two ontologically different forms — civil
      and criminal responsibility that must be specified in each particular
      case.

   As regards the expression “responsibility of a State for genocide” used
in Article IX, it is unclear whether it relates to responsibility lato sensu or
stricto sensu ; a fortiori, if one has in mind a significant difference
between the English and the French versions of the text of Article IX
being “equally authentic” under Article X of the Convention. While in
the English version of the text of Article IX it is said, inter alia, “respon-
sibility of a State for genocide”, in the French text the expression “respon-
sabilité d’un Etat en matière de génocide” has been used (emphasis
added). The latter expression is much closer to the lato sensu than to the
stricto sensu use of the term “responsibility”.

   In particular, if it is borne in mind that reference to State responsibility
and jurisdiction of the International Court of Justice was made in order
to strengthen the effectiveness of the Convention. For, it was considered
that in time of peace it is virtually impossible to exercise any effective
international or national jurisdiction over rulers or heads of State (Offi-

  127   Bin Cheng, op. cit.

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cial Records of the General Assembly, Third Session, Part I, Sixth Com-
mittee, 103rd meeting, p. 430, and 104th meeting, pp. 436, 444).

  Hence, the term “responsibility” may be understood also in the sense
of “obligation”, so that Article IX would give the
        “International Court of Justice jurisdiction for disputes arising
        between States parties about the ‘interpretation, application and ful-
        filment’ of the various obligations that arise with respect to the spe-
        cific obligations set out in the Convention, that is, prosecution,
        extradition and enactment of domestic legislation” 128.
  132. The substantive provisions of the Convention established indi-
vidual responsibility for genocide exclusively, either directly or indirectly.

   A direct reference to individual criminal responsibility is made in Arti-
cles IV, V, VI and VII. The travaux préparatoires, especially those relat-
ing to Articles IV and VI (of particular significance for this particular
issue) confirm the plain and natural meaning of the Articles referred to in
that regard. In the discussions in the Sixth Committee on Article IV, the
United Kingdom submitted an amendment 129 aimed at establishing State
responsibility for genocide. The amendment submitted by Belgium 130
was along the same lines. The amendments were rejected for reasons
summarized by the Special Rapporteur, Mr. Ruhashyankiko, as follows :

        “international practice since the Second World War has constantly
        applied the principle of individual criminal responsibility for crimes
        of international law, including those of genocide” 131.

   An indirect way of expressing the same ideas is found in the provisions
of Articles I, II and III. The notion of a “crime under international law”,
contained in Article I of the Convention is related, in positive interna-
tional law — apart from projects de lege ferenda — to actions or omis-
sions of the individual exclusively. Articles II and III, dealing specifically
with the legal determination of the crime of genocide and punishable acts
under the Convention respectively, express, by their style and content,
the understanding that a State, as an abstract legal personality without a

  128 W. Schabas, Genocide in International Law, 2000, p. 434.
  129 United Nations doc. A/C.6/236 and Corr.1.
  130 United Nations doc. 6/SR95.
  131 Mr. N. Ruhashyankiko, Special Rapporteur, op. cit., p. 36, para. 151. Also, the

draft Code of Offences against the Peace and Security of Mankind, Report of the ILC on
the work of its Thirty-sixth Session, 7 May to 27 July 1984, doc. A/39/10, YILC (1984), II,
Part Two, p. 11, para. 32.

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physical body and its own genuine will, cannot be responsible in terms of
criminal law (societas delinquere non potest).
   It appears that none of the substantive provisions of the Convention
provides for any form of responsibility in legal terms for genocide except
the criminal responsibility of the individual.
   133. The majority view does not challenge the determination that the
text of the Convention does not by itself establish the responsibility of a
State. It is pointed out that, inter alia,
         “It is true that the concepts used in paragraphs (b) to (e) of
      Article III . . . refer to well known categories of criminal law and, as
      such, appear particularly well adapted to the exercise of penal sanc-
      tions against individuals.” (Judgment, para. 167.)
   The responsibility of a State for genocide is found, however, in Arti-
cle IX of the Convention. It is effected by the duty of a Contracting Party
“not to commit genocide” in the area of the rules of the responsibility of
States as designed in the ILC Articles expressing present customary inter-
national law (Judgment, para. 414), although the position of the ILC
seems clear in that regard — the Genocide Convention did not envisage
State crime or the criminal responsibility of States in its Article IX 132.

  Is Article IX capable of establishing the responsibility of a State for
genocide ? The text of Article IX stipulates :
         “Disputes between the Contracting Parties relating to the interpre-
      tation, application or fulfilment of the present Convention, including
      those relating to the responsibility of a State for Genocide or any of
      the other acts enumerated in Article III, shall be submitted to the
      International Court of Justice at the request of any of the parties to
      the dispute.”
  134. Article IX of the Convention is, by its nature, a standard com-
promissory clause. As such, its purpose is to determine the jurisdiction of
the Court within the co-ordinates of the interpretation, application
or fulfilment of the substantive provisions of the Convention. As
Manley Hudson correctly concludes :
         “The article goes further, however, in ‘including’ among such 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
      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

  132 Report of the ILC on the work of its Fiftieth Session, 20 April-12 June 1998,

27 July-14 August 1998, United Nations doc. A/53/10 and Corr.1, para. 249.

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      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 pun-
      ishment of individuals only ; the punishment of a State is not adum-
      brated in any way, and it is excluded from Article V by which the
      parties undertake to enact punitive legislation. Hence the ‘responsi-
      bility of a State’ referred to in Article IX is not criminal liability.” 133

   Jurisdictional clauses are not capable of modifying or revising substan-
tive law. The principle expressing cogent legal considerations is particu-
larly valid as regards the species of conventions which the Genocide Con-
vention belongs to.
   The substantive provisions of the Convention belong to corpus juris
cogentis and, as a consequence, can be modified “only by a subsequent
norm of general international law having the same character” (Art. 53 of
the Convention on the Law of Treaties). It is obvious that the rule con-
tained in Article IX is not a “norm of general international law having
the same character” but in fact the rule of jus dispositivum from which
the Contracting Parties can derogate on the basis of discretion. If Arti-
cle IX could modify the legal situation established by the substantive pro-
visions of the Convention, that would, in the optic of the dichotomy jus
cogens/jus dispositivum, be tantamount to saying that at least some par-
ticular rules of jus dispositivum character possess the capacity to modify
the established jus cogens regime. Furthermore, as a matter of practical
consequences, it would follow that a Contracting Party which has made
reservation in regard to Article IX could be relieved of responsibility that
Article IX allegedly imports into the substantive provisions of the Con-
vention.
   135. If, arguendo, we hold that the drafters of the Convention, using
the term “responsibility” in Article IX, had in mind responsibility in legal
terms, then it may be taken as certain that they did not contemplate
criminal responsibility of a State.

   The Convention does not specifically provide for civil responsibility
of a State for genocide.
   The text of the Convention, in its operative part, not only does not con-
tain a specific provision in that regard, but the corresponding general
qualifications, such as “civil responsibility” or indications as “repara-
tion” or “compensation” and the like are also lacking. It is true that men-
tion has been made of “civil responsibility” in the travaux préparatoires
of Article IX, but this fact has a limited meaning considering the con-

  133 Hudson, “The Twenty-ninth Year of the World Court”, 45 American Journal of

International Law (AJIL), 1951, cited in M. M. Whiteman, Digest of International Law,
1968, Vol. 11, p. 857.

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firmatory and supportive role of travaux in the interpretation of
treaties.

   Hence, it transpires that the Convention contemplates sui generis
responsibility more close to responsibility lato sensu than stricto sensu. It
is also supported both by the nature of international criminal law and
Article VIII of the Convention as the only Article dealing with suppres-
sion and prevention of genocide at the international level. Having in
mind that the crime of genocide, as contrary not only to moral law but
also to the spirit and aims of the United Nations Charter, constitutes a
threat to the international peace and security, the competent political
organs of the United Nations, the Security Council in particular, have the
obligation to act proprio motu in case of suspected genocide.

   Consequently, it can be said that responsibility of a State for genocide
is primarily of moral and political nature, as well as with respect to other
international crimes such as apartheid or aggression, combined with
punitive measures undertaken by the competent organs of the United
Nations, as a form of collective reaction of decentralized inter-State soci-
ety. Such a form of responsibility of a State for genocide, reminiscent
partly of collective or corporate responsibility, results from the nature of
the relatively unorganized, de facto character of the international com-
munity, on the one hand, and the embryonic phase in which international
criminal law finds itself, on the other.
   As a matter of principle with respect to the substantive law reasoning,
such a perception of responsibility of a State for genocide does not pre-
clude responsibility of a State in terms of civil responsibility. That respon-
sibility, although not primary in relation to international crimes, has its
rationale in the fact that the perpetration of a criminal offence also bears
civil law consequences. Justifiable from the standpoint of substantive law,
civil responsibility of State for genocide is highly doubtful from a juris-
dictional point of view at least in a case when jurisdiction of the Court is
based on Article IX of the Convention as its compromissory clause.
   136. As regards the jurisdictional aspect of the matter, the question
arises of the applicability of those rules in the light of the principle of lex
specialis derogat legi generali.
   Any treaty in force, serving as a basis of the jurisdiction of the Court,
represents the applicable law in casu by and for itself. Being a jus specia-
lis, any such treaty excludes the application of the rules of general inter-
national law. It is to be presumed that the parties to the Convention were
aware of the existing general rules on State responsibility and decided to
treat the matter in the manner embodied in the Convention. Had they
had a different intention, they would have referred, in accordance with
the standard practice applied in international conventions, to the rules of
general international law either in the form of incorporation or in the
form of renvoi.
   The principle of jus specialis is recognized as a general rule of State

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responsibility. Article 55 of the Articles on State Responsibility stipu-
lates :
           “These Articles do not apply where and to the extent that the con-
        ditions for the existence of an internationally wrongful act or the
        content or implementation of the international responsibility of a
        State are governed by special rules of international law.” 134

   In the case at hand, special rules of international law are, most cer-
tainly, the substantive rules of the Genocide Convention.
   The condition for the application of jus specialis is, of course, a conflict
between the provisions having a special character and the rules of general
international law. The conflict emerges in the event of any inconsistency
or difference, either in positive or negative terms, between these two kinds
of rules. And, in concreto, it does exist, because the Genocide Convention
does not address issues of civil responsibility of a State for genocide.
   Bearing that in mind, it appears, as pointed out by the Special Rap-
porteur in his First Report on State Responsibility, that “the parties to it
did not undertake to have accepted the Court’s compulsory jurisdiction
on this question” 135.
   Only on the basis of the distinction between the responsibility of States
taken in absolute and as regards the jurisdiction of the Court, can one
find a rationale for the dicta of the Court, when it finds lack of jurisdic-
tion to entertain the claims, according to which :
           “There is a fundamental distinction between the acceptance by a
        State of the Court’s jurisdiction and the compatibility of particular
        acts with international law . . .
           Whether or not States accept the jurisdiction of the Court, they
        remain in all cases responsible for acts attributable to them that vio-
        late the rights of other States.” (Fisheries Jurisdiction (Spain
        v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998,
        p. 456, paras. 55-56 ; Aerial Incident of 10 August 1999 (Pakistan
        v. India), Judgment, I.C.J. Reports 2000, p. 33, para. 51 ; Legality of
        Use of Force cases, for example Legality of Use of Force (Serbia
        and Montenegro v. Belgium), Preliminary Objections, Judgment,
        I.C.J. Reports 2004, p. 328, para. 128.)

However, the Court comes to the conclusion that it is without jurisdic-
tion to entertain the claims made as regards responsibility. As stated in
the Legality of Use of Force Judgment, the Court “can make no finding,
nor any observation whatever, on the question . . . of any international
responsibility incurred”.

  134YILC, 2001, Vol. II, Part 2.
  135First Report on State Responsibility by Mr. James Crawford, Special Rapporteur,
United Nations doc. A/CN.4/490/Add.2, para. 43.

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   137. As regards the substantive aspect of the matter, it is doubtful
whether the general rules on State responsibility as it stands are objec-
tively capable of dealing with issues of international crimes.

   It is true that international delicts and international crimes possess cer-
tain similarities. Both share the characteristic of illegality. In that regard,
both notions belong to the genus of illegal acts, acts which are in conflict
with relevant rules of international law. They differ in other respects
making up two distinct species of acts within the said genus.

   The general rules on State responsibility, as regards responsibility for
the damage caused, have been created in the manner of jus aequum.
Hence, civil responsibility, in contrast to criminal responsibility, can arise
even sine delicto. It derives from the violation of the subjective law of the
injured State.
   Criminal responsibility, for its part, implies responsibility for the crimi-
nal offence committed, by which the values of the international commu-
nity as a whole are protected, public interests expressed in the rules of
objective law as such — treated as a jus strictum.

   The difference in the legal nature between international delicts on the
one hand, and international crimes on the other, gives rise to differences
in sanctions. In the case of civil responsibility, the sanction essentially
consists in restoring the situation that would have existed if the subjective
right of the damaged State had not been violated. In contrast to this, the
sanction in the case of international crimes, being essentially a legal dam-
age to the objective legal order, consists in the punishment of the perpe-
trator.
   As civil and criminal responsibility are ontologically different, criminal
responsibility cannot be transposed into a civil one and vice versa. The
attempts at transposition are conducive either to the penalization of civil
responsibility or the depenalization of criminal law — two equally
unsatisfactory outcomes. As regards genocide such an effort amounts either
to a “civil genocide” tort deprived of substance within the context of
Article II of the Convention or to little more than an excursion into the
field of the criminal responsibility of a State which is non-existent in the
primary rules. It seems, however, that the majority of the Court embarked
precisely on that path. Articles 1 and 2 of the ILC Draft Articles on State
Responsibility, signifying as they do a new approach to the notion of
responsibility by moving the classical notions of fault and damage towards
the absolute responsibility concept, prima facie provide fertile ground for
such transposition. But it turns out that it is only an illusion because of
the standard regarding the breach which has to be applied as a necessary
condition for the existence of an internationally wrongful act attributable
to a State. As stated in the commentary to Article 2 :

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         “Whether there has been a breach of a rule may depend on the
      intention or knowledge of relevant State organs or agents and
      in that sense may be ‘subjective’. For example Article II of the
      Genocide Convention states that : ‘In the present Convention,
      genocide means any of the following acts committed with intent
      to destroy, in whole or in part, a national, ethnical, racial or
      religious group as such . . .’ In other cases, the standard for
      breach of an obligation may be ‘objective’, in the sense that the
      advertence or otherwise of relevant State organs or agents may be
      irrelevant.” 136

   The rules of responsibility, as secondary rules, provide the framework
indicating the consequences of a breach, while the determination of the
content of an obligation, including the standard for a breach, is reserved
for the primary rules. As such, secondary rules cannot modify or dero-
gate from primary rules, which per se deprives of substantive effects any
attempt at the transposition of criminal law rules into the State respon-
sibility complex.

        III. The Legal Determination of the Srebrenica Massacre
  The tragic massacre in Srebrenica is the object of two ICTY Judgments
in the Krstić and the Blagojević cases. In the legal determination of the
Srebrenica massacre the Court relies on both judgments equally although
the latter is appealable.

1. The components of the genocidal intent
  It appears that none of the components distinguishable within the
genocidal intent was satisfied in the Krstić Judgment.

  1.1. Level of intent
   138. Both Chambers of the ICTY — the Trial Chamber as well as the
Appeals Chamber — perceived, in the Krstić case, alleged genocidal
intent in terms of “knowledge” or “awareness”.

  For instance, the Trial Chamber found that “the Bosnian Serb forces
had to be aware of the catastrophic impact that the disappearance of two
or three generations of men would have on the survival” 137. Or,

        “The Bosnian Serb forces knew, by the time they decided to kill all

  136 J. Crawford (ed.), The ILC’s Articles on State Responsibility, Introduction, Text

and Commentaries, 2003, pp. 81-82, para. 3.
  137 ICTY, Prosecutor v. Krstić, Trial Judgment, para. 595 ; emphasis added.

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        of the military aged men, that the combination of those killings with
        the forcible transfer of the women, children and elderly would inevi-
        tably result in the physical disappearance of the Bosnian Muslim
        population at Srebrenica.” 138
   For its part, the Appeals Chamber held “that the Bosnian Serb forces
were aware of these consequences when they decided to systematically
eliminate the captured Muslim men” 139, and, further :

           “The finding that some members of the VRS Main Staff devised
        the killing of the male prisoners with full knowledge of the detrimen-
        tal consequences it would have for the physical survival of the Bos-
        nian Muslim community in Srebrenica further supports the Trial
        Chamber’s conclusion that the instigators of that operation had the
        requisite genocidal intent.” 140

   In the Blagojević case, the Trial Chamber essentially divorced special
intent from acts of genocide, thus destroying the organic unity of the sub-
jective and objective element in the being of the crime of genocide. Hav-
ing found that

        “a distinction should be made between the nature of the listed ‘acts’
        (of genocide) and the ‘intent’ with which they are done in the sense
        that “while listed acts indeed must take a physical and biological
        form, the same is not required for the intent” 141,
the Trial Chamber in effect excludes from acts relevant in that case the
intent to destroy a protected group. For, “with the exceptions of the acts
listed in Article 4 (2) and (d), “the Statute itself does not require an
intent to cause physical or biological destruction of the group in whole or
in part 142.
   139. However, “knowledge” or “awareness” is one thing, and “special
intent” another. “Knowledge” or “awareness” as the passive, intellectual
element of intent in fact constitute dolus generalis. In contrast, special
intent means dolus specialis 143, and such a meaning is made plain in the
chapeau to Article 4 (2) of the ICTY Statute. While dolus generalis
requires that the perpetrator “means to cause” certain consequences or is
aware that it will occur in the ordinary course of events (Article 30 (2) (b)
of the ICC Statute), dolus specialis requires that the perpetrator clearly
intends the result or clearly seeks to produce the act charged. So the dif-

  138 ICTY, Prosecutor v. Krstić, Trial Judgment, para. 595 ; emphasis added.
  139 ICTY, Prosecutor v. Krstić, Appeals Judgment, para. 29 ; emphasis added.
  140 Ibid. ; emphasis added.
  141 ICTY, Prosecutor v. Blagojević, Trial Judgment, para. 659.
  142 Ibid.
  143 ICTY, Prosecutor v. Jelisić, Appeals Judgment, para. 51.

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ference lies in the active volitional element which is overriding in the spe-
cial intent as the subjective constructive element of the crime of genocide.

   As regards the protective group, “[m]ere knowledge of the victims’
membership in a distinct group on the part of perpetrators is not suffi-
cient to establish an intention to destroy the group as such” 144. Even if
the perpetrators knew that executing the men would have a lasting
impact, it does not necessarily mean that such knowledge formed the
basis of the perpetrators’ intent, especially when considered in conjunc-
tion with conscious steps taken to preserve the rest of the community 145
relating to the transfer of women, children and the old.

  1.2. Type of destruction

   140. Destruction, as perceived by the ICTY in the Krstić and the
Blagojević cases is a destruction in social terms rather than in physical or
biological terms as legally relevant forms of destruction under the Geno-
cide Convention.
   In the Krstić case the Trial Chamber found, inter alia, that the destruc-
tion of a sizeable number of military aged men “would inevitably result
in the physical disappearance of the Bosnian Muslim population at Sre-
brenica” 146, since “their spouses are unable to remarry and, consequently,
to have new children” 147. Such a conclusion, reflecting the idea of social
destruction, seems highly doubtful from the legal point of view. Within
the context described, the possible procreative implications, even under
the assumption that the killings of men have been committed with the
intent to produce such implications, could hardly be qualified as geno-
cidal. It seems obvious that such procreative implications, if they had
taken place, could not have as direct cause the killings of men, but the
inability of spouses of killed men “to remarry and . . . to have new chil-
dren” due to “the patriarchal character of the Bosnian Muslim society in
Srebrenica” 148. Such a construction is not appropriate for the so-called
objective imputation (imputatio facti), since it implies deliberate inter-
ference of the victim as well as of its decision-making into the causal
course (Selbstverantwortung). What is more, it represents a free decision
of the victim itself.

  144 ICTY, Prosecutor v. Krstić , Trial Judgment, para. 561.
  145 K. Southwick, “Srebrenica as Genocide ? The Krstić Decision and the Language of
the Unspeakable”, Yale Human Rights and Development Law Journal, 2005, p. 7.
  146 ICTY, Prosecutor v. Krstić, Trial Judgment, para. 595.
  147 ICTY, Prosecutor v. Krstić, Appeals Judgment, para. 28.
  148 Ibid.

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   The perception of destruction in social terms is even more emphasized
in the Blagojević case. The Trial Chamber applied “a broader notion of
the term “destroy”, encompassing also “acts which may fall short of
causing death” (Blagojević, Trial Chamber Judgment, para. 662), an
interpretation which does not fit in the understanding of destruction in
terms of the Genocide Convention (see paras. 84 et seq. above). In that
sense, the Trial Chamber finds support in the Judgment of the Federal
Constitutional Court of Germany, which held expressis verbis that
      “the statutory definition of genocide defends a supra-individual
      object of legal protection, i.e. social existence of the group (and that)
      the intent to destroy the group . . . extends beyond physical and bio-
      logical extermination . . . The text of the law does not therefore com-
      pel the interpretation that the culprit’s intent must be to exterminate
      physically at least a substantial number of members of the group.” 149
  Thus perceived the term “destruction” “in the genocide definition can
encompass the forcible transfer of population” 150.

  1.3. Targeted group
   141. In the Krstić case, the Prosecution referred, in its final arguments,
to “Bosnian Muslims of Eastern Bosnia” as the targeted group. The Trial
Chamber did not accept such a qualification finding that the protected
group “within the meaning of Article 4 of the Statute, must be defined, in
the present case, as the Bosnian Muslims” 151. In the correct exposition of
the idea underlying the provision of Article II of the Genocide Conven-
tion, the Trial Chamber held that “[t]he Bosnian Muslims of Srebrenica
or the Bosnian Muslims of Eastern Bosnia constitute a part of the pro-
tected group under Article 4 (of the Statute literally reproducing Arti-
cle II of the Genocide Convention — M.K.)” 152. It should be noted,
however, that the Chambers also found that
      “no national, ethnical, racial or religious characteristic makes it pos-
      sible to differentiate the Bosnian Muslims residing in Srebrenica at
      the time of the 1995 offensive, from the other Bosnian Muslims. The
      only distinctive criterion would be their geographical location, not a
      criterion contemplated by the Convention.” 153

  The Trial Chamber determined Bosnian Muslims in general terms as
the protected group without seeking national, ethnic, religious or racial
basis for its qualification of a distinct and separate entity. For, the Trial

  149 ICTY, Prosecutor v. Krstić, Appeals Judgment, para. 28 ; ICTY, Prosecutor v.

Blagojević, Trial Judgment, para. 664.
  150 Ibid., para. 665.
  151 ICTY, Prosecutor v. Krstić, Trial Judgment, para. 560.
  152 Ibid.
  153 Ibid., para. 559 ; emphasis added.

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Chamber interpreted travaux préparatoires of the Convention in the
sense

        “that setting out such a list was designed more to describe a single
        phenomenon, roughly corresponding to what was recognized, before
        the Second World War, as ‘national minorities’, rather than to refer
        to several distinct prototypes of human groups” 154.
   The interpretation should be understood in the sense that it is sufficient
if it is a group recognizable in its generic substance and that it is not nec-
essary to “differentiate each of the named groups on the basis of scien-
tifically objective criteria . . . inconsistent with the object and purpose of
the Convention” 155. The establishment of scientifically objective criteria
is in itself desirable and can only contribute to sound administration of
justice on the matter, in particular in relation to the element of genocidal
intent. Moreover, in certain cases it is not an unattainable goal, as also
demonstrated by the jurisprudence of the ICTR 156. The search for “sci-
entifically objective criteria” could, however, run counter to the object
and purpose of the Convention if it were to leave without protection a
human group not distinguishable on the basis of national, ethnic, reli-
gious or racial criteria taken individually, but which, in a general and
generic sense, satisfies the conditions to be taken as a distinct and sepa-
rate group in the light of the Genocide Convention.

  1.4. In whole or in part
  142. The word “part” in the frame of Article II of the Convention
does not mean any part of the protected group, but a qualified part. If a
part of a group were to be understood as any part, “the intent underlying
the actus reus and the mens rea specific to the crime of genocide would
overlap, so that the genocidal intent, which constitutes the distinguishing
feature of genocide, would disappear” 157.

   Within “Bosnian Muslims” as the protected group under the Conven-
tion, the Trial Chamber identified the “Bosnian Muslims of Srebrenica”
or the “Bosnian Muslims of Eastern Bosnia” as a part of the protected
group 158.
   Can the “Bosnian Muslims of Srebrenica or the Bosnian Muslims of
Eastern Bosnia” be considered as a substantial part of Bosnian Muslims ?

  154 ICTY, Prosecutor v. Krstić, Trial Judgment, para. 556.
  155 Ibid.
  156 ICTR, Prosecutor v. Akayesu, Trial Judgment, paras. 510-516.
  157 C. Tournaye, “Genocidal Intent before the ICTY”, International and Comparative

Law Quarterly, Vol. 52, April 2003, p. 459.
  158 ICTY, Prosecutor v. Krstić, Trial Judgment, para. 560.

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As a preliminary remark it can be said that, contrary to the diction of the
formulation, the expressions “Bosnian Muslims of Srebrenica” and “Bos-
nian Muslims of Eastern Bosnia” cannot be perceived as synonymous.
Although the Muslim population in Srebrenica considerably increased in
numbers in the relevant period, it was numerically far from the Muslim
population of Eastern Bosnia, which numbered over 170,000.

   Bearing in mind that in the critical period some 40,000 Bosnian Mus-
lims were concentrated in Srebrenica, and if we would accept as proven
that some 5,000-7,000 people were massacred, then, according to quan-
titative criterion, they could hardly represent a “substantial part” of the
community. Besides, the Trial Chamber, in fact, qualified the targeted
group in precise terms as “Bosnian Muslims in Srebrenica or Bosnian
Muslims of Eastern Bosnia . . .”.

   According to the data from the last census in Bosnia and Herzegovina,
in 1991, there were, in Eastern Bosnia, over 170,000 Muslims (26,316 in
Gorazde, 18,699 in Vlasenica, 21,564 in Bratunac, 4,007 in Cajnice,
30,314 in Bijeljina, 48,208 in Zvornik, 13,438 in Visegrad, 4,140 in Bosan-
ski Brod and 2,248 in Bosanski Samac).
   As regards the question whether the “Bosnian Muslims” of Srebrenica
or the “Bosnian Muslims of Eastern Bosnia” could be qualified, accord-
ing to the quantitative criterion, as a substantial part of the Bosnian
Muslims and the protected group under the Convention, one should keep
in mind that the Muslim community in Bosnia and Herzegovina, on the
basis of data from the last census in Bosnia and Herzegovina in 1991,
numbered over 1,900,000 159.
   Regarding the qualitative criterion, the Judgment does not give any
specific characterization of leadership who were massacred. It is not clear
what leadership is in question — political, military, or intellectual.
   It comes out from the dictum of the Trial Chamber, as well as its gen-
eral reasoning, that the leadership, in fact, consists of the military aged
men. For, the military leadership as well, as it is well known, headed by
the commander of the division Naser Oric, left the town a couple of days
before its fall.
   In Srebrenica, in the relevant period, there were about 40,000 Bosnian
Muslims, including the members of the Bosnia and Herzegovina Army.
In view of quantitative criteria of the determination of a substantial part
of a protected group, it seems obvious that, compared to more than one
million and hundred thousand Bosnian Muslims, the Bosnian Muslims
located in Srebrenica could not have constituted its substantial part. The
same conclusion imposes itself also in the case of the application of the
alternative, qualitative criterion, because the political and intellectual
elite of the Bosnian Muslims was located in Sarajevo.

 159   See www.FZS.ba.

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  143. The number of massacred military aged men in Srebrenica was
never precisely determined. Moreover, that number might be significantly
smaller than the number used by the Tribunal in the Krstić case.

  Namely, the Tribunal equalized the missing and the killed military
aged men in Srebrenica. Such an equalization does not look questionable
only from the legal standard accepted in the jurisprudence of the Tribu-
nal (para. 88 above) but also in the light of some indications not consid-
ered at all either by the ICTY or by the Court exempli causa. If one
compares the Final voters’ register of the Srebrenica municipality, pre-
pared by the Organization for Security and Co-operation in Europe
(OSCE), and the List of identified bodies of the people buried in the
Memorial Complex “Srebrenica — Potocare” (The “Srebrenica Potocare
Memorial and Mezaje”, Srebrenica, September 2003) ; Order of burials at
JKP “City Cemeteries”, Visoko 160 it comes out that over a third of
names are present in both documents.

  In addition, a number of soldiers of the Bosnia and Herzegovina Army
buried in the Memorial Complex “Srebrenica-Potocare” were, according
to the Army’s documents, killed in battles before the events in Sre-
brenica. For instance, the suggestion and justification of the Command
of the 28th division of the Bosnia and Herzegovina Army 161.

  144. However, in regard to the special intent, the Trial Chamber intro-
duced another notion of “part” of the protected group based on geo-
graphical area criteria. The Trial Chamber held that :

        “the intent to destroy a group, even if only in part, means seeking to
        destroy a distinct part of the group as opposed to an accumulation of
        isolated individuals within it. Although the perpetrators of genocide
        need not seek to destroy the entire group protected by the Conven-
        tion, they must view the part of the group they wish to destroy as a
        distinct entity which must be eliminated as such . . . the killing of all
        members of the part of a group located within a small geographical
        area, although resulting in a lesser number of victims, would qualify
        as genocide if carried out with the intent to destroy the part of the
        group as such located in this small geographical area.” 162

  Such an interpretation could be considered expansionist i.e., in relation

  160See www.gradska.groblja.co.br.srebrenica.html.
  161No. classified 04-16/95 of 30 March 1995, for the award of the order “Golden Lily”,
Addendum in the “Guide of the Chronicle of the Bosnia and Herzegovina Army” ;
M. Ivanisevic, “Srebrenica, July 1995, Looking for the Truth in the Press”.
 162 ICTY, Prosecutor v. Krstić, Trial Judgment, para. 590 ; emphasis added.

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571       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
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to the determination made in Article II of the Genocide Convention,
going far beyond its actual meaning.
   Moreover, it seems that the Trial Chamber intentionally went beyond
the scope of the Convention because it held that “[t]he only distinctive
criterion would be their geographical location, not a criterion contem-
plated by the Convention.” 163
   Reduction of the “targeted part” to the municipalities could have a dis-
torting effect as held by the Trial Chamber in the Brdjanin case 164 pri-
marily because the intention to destroy a group in part means seeking to
destroy a “distinct part” of the group. It is, however, difficult to see how
the Bosnian Muslims in Srebrenica constitute a distinct part as opposed
to the Bosnian Muslims as a whole. In terms of the Convention, a
national, ethnic, or religious group is not an entity comprised of distinct
parts, but a distinct entity by itself. The protection provided by the Con-
vention to the group in part is, in fact, protection of the group in its
entirety. In that regard, recognition of the part of a group on the basis of
its geographical location as a distinct part of the group would diminish
the effectiveness of the protection that the group enjoys as a whole. If,
however, parts of a group differ in respect of the characteristics which
constitute genus proximus of the group (for instance, the Sunnites and
the Shiites among the Muslims), it is possible to speak about sub-groups
which make up an aggregation in contrast to homogeneous groups to
which Bosnian Muslims most certainly also belong.

  In effect, such interpretation amounts to a transformation of a part of
the group into a “sub-group”, being Bosnian Muslims in Srebrenica, on
the basis of its alleged perception as a distinct entity by the perpetrators.
Consequently, the intent to destroy the Bosnian Muslims in Srebrenica,
as a “sub-group”, constitutes an intent to destroy a substantial part of
the Bosnian Muslim group.

  Moreover, the Trial Chamber used the substantial criteria twice suc-
cessively, with the result that : “The genocidal intent proved in the Krstić
case is an intent to destroy a substantial part of a substantial part” 165,
not, as required, a substantial part of the protected group. Namely, in
addition to the qualification of the Bosnian Muslims in Srebrenica as a
substantial part of the Bosnian Muslims as the protected group, the Trial
Chamber held that the intent to destroy the military aged men within the
sub-group means an intent to destroy a substantial part of this sub-
group, not only from a quantitative viewpoint (Trial Judgment, para. 594)
but also from a qualitative one (Trial Judgment, para. 595). In fact the

  163 ICTY, Prosecutor v. Krstić, Trial Judgment, para. 559.
  164 ICTY, Prosecutor v. Brdjanin, Trial Judgment, para. 966.
  165 Tournaye, op. cit., p. 460 ; emphasis added.

532

572         APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                            uA)
determination of a group “in part” as able-bodied, military aged Muslim
men of Srebrenica is based on triple qualification — the sex of victims
(men only), their age (only or mostly military aged) and their geographi-
cal origin — Srebrenica and surrounding areas 166. The term itself there-
fore well exceeds the meaning of the “group in part” as contemplated by
Article II of the Trial Chamber itself 167.

   1.5. The inference of intent to destroy

  145. The Trial Chamber drew the inference of genocidal intent from
three different sources.
  Primo, the “massacre by the VRS of all men of military age from that
community” 168, which is determined as “a selective genocide” 169. Sepa-
rately from the issue of the basis of the conclusion according to which
“all men of military age” were massacred 170 in order to analyse the con-
crete aspect of the intent to destroy, the question of whether the military
aged men were massacred exclusively on national, ethnic, or religious
grounds, is of decisive importance.

  The answer to this question is given by the Judgment itself, which

  166   G. Mettraux, International Crimes and the Ad Hoc Tribunals, 2005, p. 222.
  167   ICTY, Prosecutor v. Krstić, Trial Judgment, para. 559.
  168   Ibid., para. 594 ; ICTY, Prosecutor v. Krstić, Appeals Judgment, para. 26.
   169 ICTY, Prosecutor v. Krstić, Trial Judgment, para. 593.
   170 The conclusion is seemingly in contradiction with the established facts. For instance,

the Trial Chamber found that the artillery attacks were launched against “the column of
Bosnian Muslim men marching toward Tuzla” (Krstić, Trial Judgment, para. 546) and
that during “the fatal week of 11 to 16 July, negotiations were undertaken between the
Bosnian Muslim and Bosnian Serbs sides” and, as its result, (a group of 3,000) “a portion
of the Bosnian Muslim column was eventually let through to government-held territory”
(ibid.). The final finding of the Trial Chamber is that “[o]verall, ... as many as 8,000 to
10,000 men from the Muslim column of 10,000 to 15,000 men were eventually reported as
missing” (ibid. ; emphasis added). It should be mentioned that the overwhelming majority
is still considered as “missing” although the law in force in Bosnia and Herzegovina envis-
aged the period of two years from the disappearance of the persons during wartime in
order to proclaim them as dead. There are bases for reasonable doubt that all persons
who are accounted as missing are dead. Ibrahim Mustafic, the Muslim representative in
the Bosnian and Federal Parliaments, founder of the SDA in Srebrenica, suggested in the
Bosnian Parliament the establishment of a special committee whose task would be to
search for the survivors from the enclave, but without reaction in the Parliament. He says
that the

      “present attitude of the authorities towards those people is enough to convince me
      that the authorities expected that the number of the survivors would be smaller ; it
      seems that the number of the survivors is too high for their calculations. They made
      me say this : ‘It seems you are afraid of living Srebrenica inhabitants’.” (Slobodna
      Bosna, Sarajevo, 14 July 1996.)

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573        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                           uA)
refers to “the conclusion that the extermination of those men was not
driven solely by a military rationale” 171.
   It appears that the Trial Chamber excluded the exclusively military
rationale as motivation for the massacre on the basis of two circum-
stances :
(a) that no distinction was made between the men of military status and
    civilians ; and
(b) that non-military-aged were among the massacred.

   There are, however, arguments which can put those circumstances into
perspective. As regards the differentiating between men of military status
and civilians, the Srebrenica Report mentions, inter alia, the reference by
the members of Dutchbat to “a conflict where the distinction between
civilians and soldiers was often unclear” 172. Such a situation may be
understood if one bears in mind the particular concept of defence in the
SFRY — the so-called all-people defence. In that concept, the armed
forces consisted, besides the regular army, of the territorial defence which
included not only military aged men who were not in the regular army,
but persons who were outside that range. The Judgment does not give
details of the non-military aged men massacred. As regards boys (Appeals
Chamber, para. 27), that probably means the elder minors, in contrast to
“children” who were displaced. The practice in many countries, however,
includes them in conscripts, for instance, in the United States of America
at the age of 16. The Trial Chamber relied in its disqualification of the
military rationale also on the evidence that “some of the victims were
severely handicapped and, for that reason, unlikely to have been combat-
ants” 173. However, only one case of that kind is mentioned (ibid.).

   Moreover, it seems that the Tribunal’s reasoning allows the interpreta-
tion that the persons who were found to be outside the range of military
age as well, represent a simple, in contrast to a serious, military threat.
Indeed, the Appeals Chamber found :

         “Although the younger and older men could still be capable of
       bearing arms, the Trial Chamber was entitled to conclude that they
       did not present a serious military threat . . .” (Appeals Judgment,
       para. 27 ; emphasis added).

 171 Appeals Chamber, para. 26.
 172 Part 2, Chap. 8, Sect. 10, p. 4.
 173 ICTY, Prosecutor v. Krstić, Trial Judgment, para. 75.

534

574         APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
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   Secundo, procreative implications of killings of men of the Srebrenica
Muslim community.
   Tertio, the transfer of women, children and elderly people within their
(Bosnian Serb) control to other areas of Muslim-controlled Bosnia.
Although “forcible transfer does not constitute in and of itself a geno-
cidal act” 174, it does not prevent a Trial Chamber from relying on it as
evidence of the intentions of the VRS Main Staff.

   146. It appears obvious that the intention to destroy Bosnian Muslims
in Srebrenica as such is not the only reasonable inference which may be
made from the evidence presented. In a case where an inference needs to
be drawn it must be the only reasonable inference available in the evi-
dence. In concreto, the genocidal intent of the perpetrator of the massacre
is not just the only reasonable inference, but to judge by the basis of the
Trial Chamber’s conclusion that “the extermination . . . was not driven
solely by a military rationale” 175, and on the basis of the accompanying
arguments, it could hardly satisfy even a more flexible standard of proof
than proof beyond reasonable doubt. The contention “that the intent in
killing the men and boys of military age was to eliminate the community
as a whole . . . seems an enormous deduction to make on the basis that
men and boys of military age were massacred” 176.

   The approach of the Trial Chamber to the inference in the Krstić case,
is at odds with the jurisprudence of the Tribunal in the Jelisić case (Trial
Judgment, paras. 107-108), and the Brdjanin case. In that last case, the
Trial Chamber concluded, in a way which can be considered a textbook
example of the demonstration of the intrinsic requirement of inference
that

          “The Bosnian Serb forces controlled the territory of the ARK, as
        shown by the fact that they were capable of mastering the logistic
        resources to forcibly displace tens of thousands of Bosnian
        Muslims . . ., resources which, had such been the intent, could have
        been employed in the destruction of all Bosnian Muslims . . . of the
        ARK”,

and, therefore,

        “the victims of the underlying acts in Article 4 (2) to (c) particu-
        larly in camps and detention facilities, were predominantly, although
        not only, military aged men. This additional factor could militate

  174 ICTY, Prosecutor v. Krstić, Appeals Judgment, para. 33.
  175 Ibid., para. 26.
  176 W. Schabas, “Was Genocide Committed in Bosnia and Herzegovina ?”, 25 Fordham
International Law Journal, 2001, p. 46.

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575         APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                            uA)
        further against the conclusion that the existence of genocidal intent
        is the only reasonable inference that may be drawn from the
        evidence.” 177

   147. The Tribunal’s conclusion according to which the killings of men
in Srebrenica bear serious procreative implications for the Bosnian Mus-
lim community, since that destruction “would inevitably result in the
physical disappearance of the Bosnian Muslim population at Sre-
brenica” 178 through the fact that “their spouses are unable to remarry
and, consequently, to have new children” 179 seems highly doubtful from
the legal standpoint.
   It might also be said that “the physical disappearance of the Bosnian
Muslim population at Srebrenica” 180 by itself does not and can not mean
physical destruction. This is independently of the legal arguments, that is,
as witnessed by the undeniable fact of life — that the Bosnian Muslim
community in Srebrenica reconstituted itself after the conclusion of the
Dayton Agreement.
   148. As regards the transfer of women, children and older persons,
the evidence of the transfer cannot serve as a proper basis for the infer-
ence of genocidal intent, since, according to the finding of the Tribunal
itself, it “does not constitute in and of itself a genocidal act” 181. True,
the Trial Chamber treated the transfer as supporting its finding that
“some members of the VRS Main Staff intended to destroy the Bosnian
Muslims in Srebrenica” 182. On this point, the general approach of the
Tribunal seems expansionist in comparison with the spirit and text of
the Genocide Convention. The factual basis for the inference of geno-
cidal intent should, in principle, consist of physical acts which are capa-
ble, objectively, of producing genocidal effects. The physical acts which
do not have this capacity, such as, exempli causa the act of transfer,
may only support the inference of genocidal intent already made or
confirm its existence. Otherwise, the evidence of transfer should be
implicitly treated as evidence of the destruction of the targeted parts of
the protected group, which would in fact mean admitting — although
by the back door — forcible transfer as an underlying act under Arti-
cle II of the Genocide Convention. In concreto, and bearing in mind the
killings of predominantly military aged men in Srebrenica, this does not
permit the inference of genocidal intent as the only reasonable infer-
ence, relying on the evidence of transfer which transcends the permitted
limits of supportive evidence tending to cure its evidential shortcomings

  177ICTY, Prosecutor v. Brdjanin, Trial Judgment, paras. 978-979.
  178ICTY, Prosecutor v. Krstić, Trial Judgment, para. 595.
 179 ICTY, Prosecutor v. Krstić, Appeals Judgment, para. 28.
 180 ICTY, Prosecutor v. Krstić, Trial Judgment, para. 595.
 181 ICTY, Prosecutor v. Stakic, Trial Judgment, para. 519 ; ICTY, Prosecutor v. Krstić,

Appeals Judgment, para. 33.
 182 ICTY, Prosecutor v. Krstić, Appeals Judgment, para. 33.

536

576         APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                            uA)
for the purpose of inferring genocidal intent or, even, as a substitute for
it.

   Physical acts which per se are not capable of producing genocidal
effects, even if motivated by the intent to destroy a protected group,
legally represent no more than an improper attempt distinguishable from
the attempt to commit genocide in terms of Article III of the Convention
and which may be understood as “action that commences its execution
by means of a substantial step, but the crime does not occur because of
circumstances independent of the person’s intentions” 183.

   149. These means may not be placed on a par with the act of “serious
bodily or mental harm” in the sense of Article II of the Convention.
Being different by their very nature — some of them including the actus
reus of the crimes against humanity (inhuman treatment, deportation)
while others are distinct international offences (torture, rape) — they are
methods which may produce “serious bodily or mental harm” rather
than an act in the normative sense. In that respect, “serious bodily or
mental harm” appears as a result of the methods or means applied, and
not as an act per se. In other words, it should be viewed “on the bases of
intent and the possibility of implementing this intent by the harm
done” 184.

   150. The construction of genocide as regards the Srebrenica massacre
made by the ICTY in the Krstić and the Blagojević cases (the latter Judg-
ment being appealable), is based on erroneous reasoning.
   In the case of Srebrenica it has not been proved that there existed a
genocidal plan, either local or regional, that would be considered effected
by the committed massacre. Therefore, the Trial Chambers attempted to
find alleged genocidal intent in the form of inference from the facts pre-
sented.
   It appears, however, that the procedure of inference has not been fol-
lowed lege artis, by respecting inherent requirements which inference as
such necessarily implies. The substratum from which special intent may
be inferred must satisfy with respect to its components the relevant stand-
ards, both quantitative and qualitative.

   As far as qualitative conditions are concerned, the inferential substra-
tum must consist of acts capable in objective terms of producing geno-
cidal effects or being constitutive of genocide.
   It seems obvious, even in the jurisprudence of the Tribunal, that trans-
fer of women, children and elderly per se does not possess such genocidal

 183   Article 25 (3) (f) of the Statute of the ICC.
 184   N. Robinson, op. cit., p. 18.

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capacity. In fact, the transfer has served to the Trial Chamber as a sub-
sidiary source for inference of genocidal intent, as the result of the fact
that “killings” as primary source of inference have not been sufficient and
credible source in that regard. Namely, it appears that both the scope and
the object of killing allow only the interpretation expressed in the Krstić
case that “selective genocide” took place, a notion which, in the light of
the requirements established in Article II of the Convention, represents
no more than contradictio in adjecto.

   “Selective genocide”, being essentially non-genocide, has been turned
into genocide by means of construction of the genocidal intent from
sources other than killings, i.e., those consisting of acts which are not
constitutive of genocide.
   Thus constructed, genocidal intent is then taken as determinable as
regards the nature of acts like forced displacement and the loss suffered
by survivors (Krstić, Trial Judgment, para. 543 ; Blagojević, Trial Judg-
ment, paras. 644, 654), which the majority takes as “the actus reus of
causing serious bodily or mental harm”, as defined in Article II (b) of the
Convention (Judgment, para. 290).

   Such a procedure may be considered as impermissible. Deduction of
genocidal intent from acts which per se cannot have genocidal effects
and, as such, cannot be considered as acts in terms of Article II of the
Convention, inevitably leads to the watering down of the notion of geno-
cide as established by the Convention 185.
   Acts incapable of producing genocidal effects may have only confirmatory
or supportive effects in relation to the already established genocidal intent.
   As regards the Srebrenica massacre, the ICTY has, in effect, by infer-
ring alleged genocidal intent from an improper substratum, transformed
possible confirmatory or supportive effects of inference from such a sub-
stratum into constitutive effects. In a word, the ICTY resorted to a con-
struction instead of inference of genocidal intent.

   Even if, hypothetically, genocidal intent in Srebrenica were proved, it
would be possible to speak rather of an attempt to commit genocide than
of genocide itself.
   It appears that the Trial Chamber proceeded from the distinction that
is untenable as regards the nature of ethnic cleansing. Even though it
holds expressis verbis that ethnic cleansing cannot be equated with geno-
cide, it uses it as a substratum for inference of genocidal intent.

  185 William A. Schabas, “Was Genocide Committed in Bosnia and Herzegovina ? First

Judgments of the International Criminal Tribunal for the Former Yugoslavia”, 25 Ford-
ham International Law Journal (2001), pp. 45-46.

538

578          APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                             uA)
  1.6. The true legal meaning of the Judgments of the ICTY in the
       Blagojević and Krstić cases
   151. General Krstić was sentenced for complicity in genocide.
   By its very nature, complicity in genocide is an accessory offence.
Complicity as such is not a cause of consequences, and of acts committed
after them, but just a condition, or one of the conditions for them.

   The Genocide Convention draws a clear distinction between genocide
and complicity in genocide. That distinction is strictly made in Articles III,
IV, V, VI, VII and VIII by the use of the formula “genocide and . . . other
acts enumerated in Article III”. The expression “acts of genocide” occurs
only in Article VIII, indicating that the expression refers to the five sub-
paragraphs of Article II, and not to the “other acts” defined in Arti-
cle III 186. Being of a qualitative nature, the distinction between genocide
and complicity in genocide implies that they are mutually exclusive.
   In the absence of a perpetrator of genocide as the principal crime, Gen-
eral Krstić was, in fact, condemned for complicity in the act of killing
and not of genocide as such.
   True, the act of killing is one of the acts determined by Article II of the
Convention as constituting the actus reus of genocide in the normative
sense, but an act which constitutes a crime of extermination or a war crime.
   152. False in that the sense of the criminal law is one thing, and that of
international crime is another.
   The perception that equates a criminal wrong with a crime essentially
reduces the notion of crime to illegality as an objective element of crime.
   However, the notion of crime is based on a symbiosis of two ele-
ments — objective, in terms of illegality of a concrete act or omission,
and subjective, in terms of individualized, personalized guilt. The notion
of crime thus exists as the result of a linkage of wrong and individualized
guilt. Such a concept of crime is common heritage in modern criminal
laws on which is also based the very categorization of criminal law. In the
matter of international criminal law, for instance, without a subjective
element in various forms that a guilty mind may assume, it is not possible
to draw a proper distinction between genocide, crime against humanity
and war crime. Even in crimes of strict liability a subjective element is
necessary applied in the form of absolute presumption of guilt.

   International crime implies an accumulation of several components,
one of them being a perpetrator of a crime. As the ICTY repeatedly
stated :
          “In order to establish individual criminal responsibility for plan-
        ning, instigating, ordering and otherwise aiding and abetting in the

  186   W. Schabas, Genocide in International Law, 2000, p. 155.

539

579        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                           uA)
      planning and preparation of a crime, referred to in Articles 2 to 5 of
      the Statute, proof is required that the crime in question has actually
      been committed by the principal offender(s).” 187

   The concrete finding of the Tribunal is a fortiori valid for crimes char-
acterized by special intent, such as genocide. Without the perpetrator as
a person with a mind guilty of the destruction of an ethnic, national, reli-
gious or racial group, it is legally impossible to talk about genocide as
committed crime.
   The guilt is a subjective element without which there is no crime in the
legal sense. The very act is not per se sufficient to constitute a crime ; it is
merely a strong indication of its existence.
   As a criminal act does not exist without a perpetrator, so the guilt, as
indispensable element of a crime, does not exist in legal terms as abstract,
non-individualized guilt. That is the substance of the notion of individual
criminal responsibility. As a rule, the physical act, violating criminal law
norms, transcends into a crime by fulfilment of the subjective require-
ment, i.e., the guilty mind of a perpetrator. Without guilt properly estab-
lished in regard to the person or group of persons, it represents criminal
wrong (Unrecht ; illicite criminel) only.

   153. General Krstić was convicted as part of a “joint criminal enter-
prise”. In the absence of a genocidal plan until the days immediately pre-
ceding the killing, as the Trial Chamber found, General Krstić “could
only surmise that the original objective of ethnic cleansing by forcible
transfer had turned into a lethal plan to destroy the male population of
Srebrenica” 188.

   Some observations seem to be of crucial importance here.

   The notion of “joint criminal enterprise” being based on the natural
and foreseeable consequences of the particular act, by its nature belongs
to a negligence-type offence hardly reconcilable with the most serious
crimes, especially genocide characterized essentially by special intent. As
such joint criminal enterprise “is a form of anti-social behaviour judged
by a different yardstick than those who commit crimes with malice and
premeditation” 189.

   187 ICTR, Prosecutor v. Akayesu, Trial Judgment, para. 473 ; ICTY, Prosecutor v.

Blaskić, Trial Judgment, para. 278 ; ICTY, Prosecutor v. Kordić, Trial Judgment,
para. 386 ; ICTY, Prosecutor v. Stakić, Trial Judgment, para. 445 ; ICTY, Prosecutor v.
Tadić, Appeals Judgment, para. 229 ; ICTY, Prosecutor v. Aleksovski, Appeals Judgment,
para. 164 ; ICTY, Prosecutor v. Furundzija, Trial Judgment, para. 235 ; ICTY, Prosecu-
tor v. Vasiljević, Trial Judgment, para. 70 ; ICTY, Prosecutor v. Naletilić, Trial Judgment,
para. 63 ; ICTY, Prosecutor v. Simić, Trial Judgment, para. 161 ; emphasis added.
   188 ICTY, Prosecutor v. Krstić, Trial Judgment, para. 622.
   189 W. Schabas, “Mens rea and the ICTY”, 37 New England Law Review, 2003,

p. 1033.

540

580        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. KREC
                                                           uA)
  What is more important in casu, the notion of “joint criminal enter-
prise” obviously does not belong to the law of genocide established by
the Convention. The punishable acts other than genocide enumerated
exhaustively in Article III of the Genocide Convention do not comprise a
“joint criminal enterprise”. All of them expressing the requirement in the
chapeau of Article II rest on a subjective standard of the assessment of
mens rea. In contrast, the “joint criminal enterprise” implies rather an
objective standard framed in terms of reasonableness more appropriate
to vicarious civil responsibility than to criminal liability. Moreover, it is
not enumerated as a form of participation in Article 7 (1) of the ICTY
Statute, being, in fact, a creation of judges of the ICTY 190 perhaps dis-
regarding the principle nullum crimen nulla poena sine lege. Its effects
amount to an expansion of the mens rea element of the crime of genocide
with dangerous consequences.

 As emphasized by the Trial Chamber (Judges May, Bennouna and
Robins) in the Kordić Judgment :
        “Stretching notions of individual mens rea too thin may lead to
      the imposition of criminal liability on individuals for what is actually
      guilt by association, a result that is at odds with the driving princi-
      ples behind the creation of this International Tribunal.” 191

   The dangers of “guilt by association” were diagnosed by the Tribunal
in its first Annual Report. The Tribunal held that it may lead to “collec-
tive responsibility” as a primitive and archaic concept meaning that the
“whole group will be held guilty of massacres, torture, rape, ethnic
cleansing, the wanton destruction of cities and villages”. And history
shows “that clinging to feelings of ‘collective responsibility’ easily degen-
erates into resentment, hatred and frustration and inevitably leads to
further violence and new crimes” 192.

                                                                         uA.
                                                     (Signed) Milenko KREC

  190 ICTY, Prosecutor v. Furundzija, Trial Judgment, paras. 199-226 ; ICTY, Prosecu-

tor v. Tadić, Trial Judgment, para. 190.
  191 ICTY, Prosecutor v. Kordić, Trial Judgment, para. 219.
  192 Report of the International Tribunal for the Prosecution of Persons Responsible for

Serious Violations of International Humanitarian Law Committed in the Territory of the
former Yugoslavia since 1991, Official Records of the General Assembly/Security Council,
Forty-ninth Session/Forty-ninth Year, United Nations doc. A/49/342-S/1994/1007,
para. 16.

541