                     450

                              SEPARATE OPINION OF JUDGE AD HOC KREĆA

                                                   table of contents

                                                                                Paragraphs

                       I. Legal Background                                                      1-27
                           1. Constitutional concept of the Yugoslav State and of Croatia
                              as a federal unit                                                 2-17
                           2. Decisions of the Constitutional Court of the SFRY                18-27
                      II. Jurisdictional Issues                                                28-83
                           1. Validity in time complex in casu28-45
                             1.1. From which date is the Genocide Convention in force
                                  as regards the Parties individually ?              29-33
                             1.2. From which date can the Genocide Convention be con-
                                  sidered as applicable between the Parties ?        34-35
                             1.3. Application of the principle in casu36-43
                             1.4. By which date was the Genocide Convention in force
                                  as regards the SFRY ?                              44-45
                           2. Nature and effects of the second preliminary objection of the
                              Respondent46-54
                           3. Treatment of preliminary objections to jurisdiction and
                              admissibility in casu55-59.1
                           4. Succession to responsibility as a purported rule of general
                              international law                                              60-65.4
                           5. Rule in Article 10 (2) of the Articles on the Responsibility of
                              States for Internationally Wrongful Acts as a purported rule
                              of general international law                                     66-67
                           6. Applicable substantive law in casu in the light of rules on
                              interpretation of treaties                                       68-79
                           7. The issue of the indispensable third party                       80-83
                      III. Substantive Law Issues                                             84-138
                           1. Relationship between the ICJ and the ICTY in respect of
                              the adjudication of genocide                                    84-106

                             1.1. The need for a balanced and critical approach to
                                  the jurisprudence of the ICTY                                   87
                             1.1.1. Factual findings of the ICTY                               88-89
                             1.1.2. Legal findings of the ICTY                                 90-99
                             1.2. Compromising effects on the Court’s jurisprudence on
                                  genocide100-106

                     451

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                     451 	    application of genocide convention (sep. op. kreća)

                           2. Was genocide committed in Croatia ?                            107-114
                           3. Issue of incitement to genocide                                    115
                             3.1. Issue of incitement to genocide as inchoate crime              116

                             3.2. Incitement in terms of Article III (c) of the Convention   116-119

                             3.3. Ustasha ideology as a genocidal one                         120-124
                             3.4. The establishment of the NDH — the Ustasha ideo
                                  logy becomes State policy                                   125-128
                             3.5. President Tudjman’s Croatia and the legacy of the
                                  NDH129-133
                             3.6. State symbols and other acts                                134-138
                             3.7. Statements of Croatia’s officials in the light of the juris-
                                  prudence of the ICTR regarding incitement

                                                            *
                     Having great respect for the Court, it is for me a matter of regret to find
                     necessary to avail myself of the right to express a separate opinion based
                     on the considerations that follow.

                                               I. Legal Background

                        1. The background part of the Judgment in the case at hand comprises
                     two parts : “A. The break‑up of the Socialist Federal Republic of
                     Yugoslavia and emergence of new States” ; and “B. The situation in

                     Croatia”.
                        It consists almost entirely of a statement of facts of a historical and
                      political nature, neglecting at the same time the relevant legal facts which,
                      in my opinion, not only should constitute a part of the “background”,
                      but without which the causes of the Yugoslav crisis and the civil war in
                      Croatia can hardly be understood. The only relevant legal fact stated in
                      the “background” part of the Judgment is the assertion of the Respondent
                      that the “Croatian Serbs considered that the adoption of this new Consti-
                      tution [of Croatia on 22 December 1990] deprived them of certain basic
                     rights and removed their status as a constituent nation of Croatia” (Judg-
                     ment, para. 64).
                        The relevant legal facts, together with other facts, can only be helpful
                     in the creation of a full picture of the background of the case.

                                1. Constitutional Concept of the Yugoslav State and
                                            of Croatia as a Federal Unit
                       2. The legal facts relate to the domestic law of the Socialist Federal
                     Republic of Yugoslavia (SFRY) and that of the Socialist Republic of
                     Croatia in force during the relevant period.

                     452

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                     452 	     application of genocide convention (sep. op. kreća)

                        In a case like the one at hand, domestic law is highly relevant.
                        3. The original international legal norm of self‑determination of peo-
                     ples is both incomplete and imperfect, at least when it concerns subjects
                     entitled to self‑determination in multi‑ethnic States and their exercise of
                     external self‑determination infringing upon the territorial integrity of a
                     State. Given its incompleteness, the original norm of self‑determination
                     of peoples is rendered inapplicable in its respective parts to certain practi-
                     cal situations and constitutes a sort of decorative, empty normative struc-
                     ture. Interested entities often refer to it, but it can function only outside the
                     legal domain, as a convenient cover for an eminently political strategy,
                     based on opportuneness and the balance of power.

                       This implies a need to see the norm of the right to external self‑deter-
                     mination in States composed of more than one people as a complex norm
                     consisting of two parts : on the one hand, original international legal
                     norms of the right of peoples to external self‑determination, and, on
                     the other, relevant parts of the internal law of the given State. In this
                     context, the original international legal norm of the right of peoples
                     has the role of a general, permissive norm, which assumes an operative
                     character, the property of a norm which may become effective in the
                     event that the internal law of a multi‑ethnic State has stipulated the right
                     to external self‑determination if it defines the entitlement to it, as well as
                     the procedure for its exercise. In other words, the relevant provisions
                     of internal law are ad casum an integral part of the norm of the right
                     of peoples to external self‑determination. Only in this way does the origi-
                     nal international legal norm of the right to external self‑determination
                     become applicable at the level of the fundamental premise of the rule of
                     law.
                       The necessity for such a relationship between international and internal
                     laws is rightfully suggested by the following :
                              “If the rule of law is to be made effective in world affairs it must
                           cover a wide range of increasingly complex transactions which are
                           governed partly by international and partly by municipal law . . . It
                           is therefore important that international courts and tribunals should
                           be in a position, when adjudicating upon complex international trans-
                           actions, to apply simultaneously the relevant principles and rules of
                           international law and the provisions of any system of municipal law
                           which may be applicable to the particular transaction . . . One of the
                           essential functions of international law and international organization
                           is to promote the rule of law within as well as among nations, for only
                           on the basis of the rule of law within nations can the rule of law among
                           nations develop and be made secure. International courts and tribu-
                           nals can contribute to this result more effectively if the extent to which
                           the interpretation and application of municipal law in the course
                           of their work is a normal and necessary incident of international
                           adjudication on complex transactions is more fully understood.”

                     453

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                     453 	     application of genocide convention (sep. op. kreća)

                           (C. Wilfred Jenks, The Prospects of International Adjudication, 1964,
                           p. 547.)

                        4. Thus, in the present case, this is not a matter of a conflict between a
                     norm of international law and a norm of internal law, a type of case adju-
                     dicated by several international courts (Greco‑Bulgarian “Communities”,
                     Advisory Opinion, 1930, P.C.I.J., Series B, No. 17, p. 32 ; Free Zones of
                     Upper Savoy and the District of Gex, Order of 19 August 1929, P.C.I.J.,
                     Series A, No. 22, p. 167 ; Treatment of Polish Nationals and Other Persons
                     of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932,
                     P.C.I.J., Series A/B, No. 44, p. 24), but rather of the application of an
                     international norm of a complex structure, namely a norm that incorpo-
                     rates relevant norms of internal law relating to external self‑determina-
                     tion. I am of the view that, in this case, the reasoning of the Court in the
                     case concerning Brazilian Loans (1929) is relevant.

                       In that case, the Court pointed out, inter alia, that :
                              “Once the Court has arrived at the conclusion that it is necessary
                           to apply the municipal law of a particular country, there seems no
                           doubt that it must seek to apply it as it would be applied in that
                           country. It would not be applying the municipal law of a country if
                           it were to apply it in a manner different from that in which that law
                           would be applied in the country in which it is in force.
                              It follows that the Court must pay the utmost regard to the deci-
                           sions of the municipal courts of a country, for it is with the aid of
                           their jurisprudence that it will be enabled to decide what are the rules
                           which, in actual fact, are applied in the country the law of which is
                           recognized as applicable in a given case. If the Court were obliged to
                           disregard the decisions of municipal courts, the result would be that
                           it might in certain circumstance apply rules other than those actually
                           applied ; this would seem to be contrary to the whole theory on which
                           the application of municipal law is based.
                              Of course, the Court will endeavour to make a just appreciation of
                           the jurisprudence of municipal courts. If this is uncertain or divided,
                           it will rest with the Court to select the interpretation which it consid-
                           ers most in conformity with the law. But to compel the Court to
                           disregard that jurisprudence would not be in conformity with its func-
                           tion when applying municipal law.” (Brazilian Loans, Judgment
                           No. 15, 1929, P.C.I.J., Series A, No. 21, p. 124.)
                        5. Yugoslavia, both the Kingdom of Yugoslavia and the federal Yugo-
                     slavia constituted after the Second World War, were multinational States
                     in the factual and constitutional sense.
                        6. The first constitution of the Yugoslav State — the Constitution of
                     the Kingdom of Serbs, Croats and Slovenes, promulgated on 28 June
                     1921, stipulated that the Kingdom “is a State of Serbs, Croats and Slo-

                     454

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                     454 	       application of genocide convention (sep. op. kreća)

                     venes, a constitutional, parliamentary and hereditary monarchy. The offi-
                     cial State name is : Kingdom of Serbs, Croats and Slovenes.” Article 3 of
                     the Constitution provided that the “official language of the Kingdom will
                     be Serb‑Croat‑Slovenian”.
                        7. The Constitution of the Kingdom of Yugoslavia of 3 September
                     1931 did not indicate expressis verbis its constitutive peoples. They were
                     mentioned only indirectly, as, for example, in the provision of Article 3 of
                     the Constitution stipulating that the “official language of the Kingdom
                     will be Serb‑Croat‑Slovenian”.
                        8. The resolution constituting Yugoslavia on the federal principle,
                     approved by the Second Conference of the Anti‑Fascist Council of
                     National Liberation of Yugoslavia on 29 November 1943, said inter alia,

                              “By virtue of the right of each people to self‑determination includ-
                           ing the right to separation or unification with other peoples . . . the
                           Anti‑Fascist Council of National Liberation of Yugoslavia passes the
                           following :
                               RESOLUTION
                           �����������������������������������������������������������������������������������������������������������������
                           (2) To effectuate the principle of sovereignty of the peoples of Yugosla-
                                 via, . . . Yugoslavia is being constructed and will be constructed on
                                 the federal principle which will secure full equality to Serbs, Croats,
                                 Slovenians, Macedonians and Montenegrins.” (Emphasis added.)
                        9. The Declaration on Basic Rights of Peoples and Citizens of the
                     Democratic Croatia, adopted at the Third Assembly of State Anti‑Fascist
                     Council of National Liberation of Croatia on 9 May 1944 stipulated in
                     Article I that “Croatian and Serbian people in Croatia are completely
                     equal” (Decision on building up Yugoslavia on the federal principle, Offi‑
                     cial Gazette [of DFI], No. 1/1945).

                       At its last meeting ZAVNOH (The State Anti-Fascist Council of
                     National Liberation of Croatia) changed its name to the National Parlia-
                     ment of Croatia.
                       10. The first Constitution of the Federal Yugoslavia of 1946, in its
                     Article 1, defined the Federal Peoples’ Republic of Yugoslavia as

                           “a federal peoples’ State in the form of a Republic, a community of
                           peoples who have expressed their will, based on the right to self‑deter‑
                           mination, including the right to separation to live together in a federal
                           State” (emphasis added).
                        11. In the second Constitution of 1963, the Federation was defined as
                     a : “Federal State freely unified and equal peoples and a Socialist Demo-
                     cratic community based on the rule of working people and self‑govern-
                     ment.” (Emphasis added.)

                     455

7 CIJ1077.indb 906                                                                                18/04/16 08:54

                     455 	     application of genocide convention (sep. op. kreća)

                       Article 1 of the Constitution of Croatia of 1963 qualified it as “a State
                     Socialist democratic community of peoples of Croatia, based on the rule
                     of working people and self‑government” (emphasis added).

                       12. The Constitution of the SFRY of 1974 begins with Chapter I of the
                     Basic Principles, which was worded as follows :
                              “The peoples of Yugoslavia, starting from the right of each nation to
                           self‑determination, including the right to secession, on the grounds of
                           their will freely expressed in the joint struggle of all peoples and
                           nationalities in the national liberation war and socialist revolution . . .
                           have created a socialist federal community of working peoples — the
                           Socialist Federal Republic of Yugoslavia.”

                       In Chapter VII of the “Basic Principles”, it is stated, inter alia that the
                     Socialist Federal Republic of Yugoslavia (SFRY) upholds :
                            “— the right of each people freely to determine and build its social
                               and political order by ways of and means freely chosen ;
                             — the right of people to self‑determination and national inde-
                               pendence and the right to wage a liberation war, in pursuit of
                               their causes ;
                             — regard for generally accepted norms of international law.”

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

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

                        13. The 1974 Constitution of the Socialist Republic of Croatia laid
                     down, in Article 1, paragraph 2, that : “The Socialist Republic of Croatia
                     is the national State of the Croatian people, the State of the Serbian people
                     in Croatia and the State of all nationalities living in it.” 1
                        In the practice and legal terminology of the SFRY, the word “nation-
                     alities” denoted national minorities. The rationale of this terminological
                     substitution led to the perception of the expression “national minorities”
                     as a pejorative one.
                        14. It seems clear that a consistently undeniable fact underlies the
                     broad spectrum of changes that have affected the Yugoslav State since its
                     inception in 1918, functioning as a point of departure, explicit or implicit,

                        1 Zemaljsko Antifascisticko vijece naroduoy slobodenja Hrvatske-Zboruk dokumenala

                     1944 (Od 1. Sijcnja do. 9 Sorbuja), Zagreb, 1970, p. 666.

                     456

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                     456 	    application of genocide convention (sep. op. kreća)

                     of all constitutional solutions : that is that Yugoslavia has primarily been a
                     community of peoples since its birth.

                        The subject of changes was the number of constitutive peoples (in the
                     constitutional practice and the theory of constitutional law of federal
                     Yugoslavia, the term “constituent nations” is the synonym of the term
                     “peoples” equipped with the right to self‑determination). At the moment
                     of its inception in 1918, Yugoslavia was a community of three constitu-
                     tive peoples (Serbs, Croats and Slovenes). The Federal Constitution of
                     1946 recognized the status of constitutive peoples of Macedonians and
                     Montenegrins, who used to be regarded as parts of the Serbian national
                     corps. Finally, the Constitution of 1963 included Muslims in the rank of
                     constitutive peoples.
                        15. Federal Yugoslavia was formed under the resolution of the Second
                     Conference of the Anti‑Fascist Council of National Liberation of Yugo-
                     slavia in 1943, as a community of sovereign and equal peoples, while subse‑
                     quent constitutional intervention created republics, as federal units. Thus,
                     like the rest of the republics, Croatia was formally brought into being by
                     its Constitution of 1946, although temporary authorities had been created
                     by the ZAVNOH resolution in 1944.

                        16. In the light of constitutional solutions the qualification of Croatia as
                     a union of nations, personal sui generis, is the closest to the real state of
                     affairs. Such a qualification was justified by several facts of fundamental
                     importance.
                        Firstly, in the light of both norms and facts, Croatia was a community
                     of two peoples, Croats and Serbs, as well as a community of nationalities
                     (national minorities).
                        Secondly, the SFRY Constitution of 1974 and the Constitution of the
                     Socialist Republic of Croatia promulgated the same year, defined the
                     right to self‑determination as a subjective, collective right of peoples.
                     Such a provision was consigned in earlier constitutions. It derives from
                     the very nature of the matter. The subject entitled to self‑determination is,
                     by definition, a people. It is yet another question that as the right to
                     self‑determination is exercised on the given territory, the consequences of
                     the exercised right to self‑determination are territorialized. Overlapping
                     of the right to self‑determination and territorialization occurs, as a rule,
                     in single‑people communities, and it follows that formulations which recog‑
                     nize the right to a territorial entity are colloquial formulations. However,
                     in multi‑ethnic communities composed of two or more peoples provided
                     with equal rights, a territory is exclusively an area where equal rights of
                     self‑determination are exercised.

                        Thirdly, in the light of the relevant constitution provisions, both
                     federal and that of Croatia, it seems clear that Croatia, as a federal
                      unit, was not equipped with a right to self‑determination that would
                     include the right to secession. The Yugoslav federal units possessed no

                     457

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                     457 	     application of genocide convention (sep. op. kreća)

                     right to secession, for that right was absolutely reserved for constitutive
                     peoples.
                         Fourthly, the constitutional system of the Socialist Republic of Croatia
                      designed the right to self‑determination as a collective, subjective right of
                      Croatian and Serb people in Croatia, which is, by its nature, inalienable.
                      However, the Constitution of Croatia of 1990 deprived the Serbs in Croa-
                      tia of the status of a people equipped with the right to self‑determination
                      and illegally transformed them into a national minority.
                         The proposal to resolve the controversies surrounding the exercise of
                      the right to external self‑determination constitutione artis, namely via a
                      corresponding constitutional revision, was contained in the “Concept for
                      the Future Organization of the State Proposed by a Working Group
                      Comprising Representatives of All the Republics as a Basis for Further
                      Talks between the Republican President and the State Presidency”.
                         Starting from the basic premise that :
                              “The Yugoslav State community, seen as a Federal State of equal
                           citizens and equal peoples and their republics [footnote commentary :
                           Kasim Trnka from Bosnia and Herzegovina proposed that the repub-
                           lics be placed first] and as a democratic State, will be founded on
                           human and civil rights and liberties, the rule of law and social justice”,

                     the “Concept” contains a part entitled “Proposed Procedure for Dissocia-
                     tion from Yugoslavia” which reads :
                              “In connection with initiatives in certain republics for secession
                           from Yugoslavia, that is, the ‘disunion’ of the country, and in view
                           of the general demand for a peaceful, democratic and constitutional
                           resolution of the constitutional crisis, the question of procedure arises
                           with regard to the possible realization of these initiatives. The aim of
                           the initiatives is the withdrawal of certain republics from the Socialist
                           Federal Republic of Yugoslavia. They are based on the permanent
                           and inalienable right of peoples to self‑determination and should be
                           constitutionally regulated. The right of peoples to self‑determination,
                           as one of the universal rights of modern law, is set out in the basic
                           principles of the SFRY Constitution. However, the realization of the
                           right of peoples to secession, which includes the possibility of certain
                           republics’ withdrawal from the SFRY, is not regulated by the SFRY
                           Constitution. It is therefore necessary to amend the SFRY Constitu-
                           tion in order to create a basis for exercising this right. Revision of the
                           SFRY Constitution on these lines should be based on the democratic
                           nature of the entire process of statement of views, the equality of the
                           Yugoslav people, the protection of fundamental human and civil
                           rights and freedoms, and the principle of the peaceful resolution of
                           all disputes. In keeping with the above, appropriate amendments
                           should be made to the SFRY Constitution which would in a general
                           manner regulate the procedure for the execution of the right of

                     458

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                     458 	     application of genocide convention (sep. op. kreća)

                            eoples to secession and thereby the withdrawal of certain republics
                           p
                           from the SFRY.
                              The amendments to the SFRY Constitution should express the fol-
                           lowing commitments :
                           1. The right to launch the initiative for a certain republic to withdraw
                                from the SFRY is vested in the Assembly of the respective repub-
                                lic, except if otherwise regulated by the republican constitution.
                           2. A decision on the initiative is taken at a referendum at which the
                                free, direct and secret voting of all citizens of the republic is
                                ensured.
                           3. During the preparations for the referendum, the public and voters
                                will be informed objectively and on time of the importance and
                                the consequences of the referendum.
                           4. The referendum will be monitored by representatives of the
                                Assembly of Yugoslavia and, possibly, representatives of other
                                republics and interested international institutions.
                           5. A decision will be deemed adopted if it receives more than one
                                half of the votes of all registered voters.
                           6. In republics populated by members of several Yugoslav nations,
                                the necessary majority will be established for each Yugoslav
                                nation separately. If one nation votes against, all settlements in
                                which this nation is predominant and which border on the remain-
                                ing territory of Yugoslavia and can constitute its territorial com-
                                pactness will remain part of the SFRY. [. . .]
                           8. The Assembly of the republic will inform the public and the
                                Assembly of Yugoslavia of the result of the referendum, and will
                                submit to the Assembly of Yugoslavia a proposal to adopt a con-
                                stitutional enactment on the withdrawal of the respective republic
                                from the SFRY, in accordance with the will of the people expressed
                                at the referendum.
                           9. The Assembly of Yugoslavia acknowledges the legality and legit-
                                imacy of the expressed will of the people and members of nations,
                                and instructs the Federal Government to carry out the necessary
                                preparations for the adoption of the enactment on withdrawal
                                from the SFRY.
                              In this context, the Federal Government is obligated to :
                           (a) prepare a proposal for the division of jointly created values and
                                the property of the federation (movable and immovable property)
                                in the country and abroad registered as the property of the fed-
                                eration ; international obligations and claims ; assets of the
                                National Bank of Yugoslavia ; foreign currency, commodity and
                                monetary reserves of the federation, property of the Yugoslav
                                People’s Army, archives of Yugoslavia, certain infrastructure
                                facilities, licenses and other rights and obligations ensuing from
                                ratified international conventions. The Federal Government pro-
                                posal would also include issues relating to citizenship, pension

                     459

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                     459 	     application of genocide convention (sep. op. kreća)

                               and other rights of citizens and the like. This requires the estab-
                               lishment of common responsibility for the obligations and guar-
                               antees of the SFRY toward foreign countries ;
                           (b) propose to the Assembly of Yugoslavia the manner of the election
                               and authorization of a parity body or committee which will pre-
                               pare a proposal for the division of rights and obligations and
                               submit it to the Assembly of Yugoslavia ;
                           (c) prepare proposals for the territorial demarcation and the frontiers
                               of the future States and other issues of importance for formulat-
                               ing the enactment on withdrawal.
                             10. On the basis of the Federal Government proposals regarding
                           material and territorial issues, the Assembly of Yugoslavia will for-
                           mulate, with the consent of the republican assemblies, a constitutio-
                           nal enactment (constitutional law) on withdrawal from the SFRY
                           which, among other things, establishes :
                             — citizens’ right of choice (term and manner in which citizens will
                                  state their choice in the event of territorial changes), and the
                                  obligation to ensure just compensation for change of residence) ;
                             — the obligation to provide judicial protection of the rights of
                                  citizens, legal entities and members of certain nations (compen-
                                  sation for damages resulting directly from the execution of the
                                  right to withdrawal, etc.) ;
                             — the obligation to harmonize certain laws and other enactments
                                  with changes in the structure of the SFRY ;
                             — supervision and control of the enforcement of determined obli-
                                  gations ;
                             — other issues which must be resolved by the time of the definitive
                                  disassociation (judiciary, environment protection, joint ven-
                                  tures and the like) ;
                             — the transitional period and the moment of disassociation from
                                  the SFRY. If the result of the referendum is negative, the same
                                  initiative may be launched after the expiry of a period of five
                                  years.” (Focus, Special Issue, January 1992, pp. 31‑33.)
                        17. The proposal offered the peaceful change, the possibility of resolv-
                     ing the crisis constituzione artis, for the exercise of right to self‑determina-
                     tion should be carried out according to the following pattern :
                              “Whether the federation dissolves into two or more States also
                           brings into focus the doctrine of self‑determination in the form of
                           secession. Such a dissolution may be the result of an amicable and con‑
                           stitutional agreement or may occur pursuant to a forceful exercise of
                           secession. In the latter case, international legal rules may be pleaded in
                           aid, but the position would seem to be that (apart from recognized colo‑
                           nial situations) there is no right of self‑determination applicable to inde‑
                           pendent States that would justify the resort to secession.” (M. N. Shaw,
                           International Law, 2008, p. 218 ; emphasis added.)

                     460

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                     460 	       application of genocide convention (sep. op. kreća)

                                    2. Decisions of the Constitutional Court of the SFRY
                        18. The Constitutional Court of the SFRY was designed as the guard-
                     ian of constitutionality and legality in the legal system of the SFRY. It
                     consisted of a President and thirteen judges elected according to the fol-
                     lowing formula : two from each Republic and one from each autonomous
                     province (Article 381 of the Constitution of the SFRY).
                        19. The Federal Executive Council (the Government of the SFRY),
                     headed by Croat Ante Markovic, instituted proceedings before the Con-
                     stitutional Court of Yugoslavia for the assessment of the constitutionality
                     of the Declaration on the Proclamation of Sovereign and Independent
                     Republic of Croatia (Narodne novine — Official Journal of the Republic
                     of Croatia, No. 31/91).
                        In the view of the Government of the SFRY,
                           “the Declaration on the Proclamation of Sovereign and Independent
                           Republic of Croatia, in particular its Parts III, IV and V are not [. . .]
                           in accordance with the Constitution of the SFRY and is contrary to
                           the federal laws regulating the fields of national defence, security,
                           foreign affairs and public administration because the right to self‑
                           determination, including the right to secession, can be realized only
                           under the conditions, via the procedure and in the manner determined
                           by agreement of all the Republics, in accordance with the Constitu-
                           tion of the SFRY”.
                       19.1. Part III of the Declaration on the Proclamation of Sovereign and
                     Independent Republic of Croatia stated inter alia :

                               “The Republic of Croatia guarantees to Serbs in Croatia and to all
                           national minorities living on its territory respect for all human and
                           civil rights, particularly freedom of speech and the cultivation of their
                           own languages and promotion of their cultures, and freedom to form
                           political organizations
                           �����������������������������������������������������������������������������������������������������������������
                               The Republic of Croatia in its capacity of the legal successor of the
                           former Socialist Federal Republic of Yugoslavia guarantees to all
                           States and international organizations that it will fully and conscien-
                           tiously exercise all rights and perform all obligations in the part relat-
                           ing to the Republic of Croatia.”
                       Part IV of the Declaration said :
                             “The Constitutions of the Federal People’s Republic of Yugoslavia
                           and of the Socialist Federal Republic of Yugoslavia granted the
                           Republic of Croatia the right to self‑determination and secession.

                             Being established as an independent and sovereign State, the Rep
                           ublic of Croatia, which has up till now realized part of its sovereign

                     461

7 CIJ1077.indb 918                                                                                18/04/16 08:54

                     461 	       application of genocide convention (sep. op. kreća)

                           rights together with the other constituent Republics and Autonomous
                           Provinces of the Socialist Federal Republic of Yugoslavia, is now
                           changing its status and its State‑law relations with the Federal Repub-
                           lic of Yugoslavia, and agrees to take part in its individual institutions
                           and functions of common interest conducive to the disassociation
                           process.
                              In the course of the disassociation process it is necessary to establish
                           the rights and obligations, i.e., the share of the Republic of Croatia
                           in the total movable and immovable property and in the rights of the
                           former Socialist Federal Republic of Yugoslavia.

                               By proclaiming the Constitutional Decision on Independence, the
                           Republic of Croatia has started the process of disassociation from
                           other Republics of the SFRY, and wants to terminate this process as
                           soon as possible in a democratic and peaceful manner respecting the
                           interests of all Republics and Autonomous Provinces making up the
                           SFRY.
                               By the Constitutional Decision the present borders of the Republic
                           of Croatia have become State borders with other Republics and with
                           the countries adjoining the former Socialist Federal Republic of
                           Yugoslavia
                           �����������������������������������������������������������������������������������������������������������������
                               Only laws which have been adopted by the Sabor of the Republic
                           of Croatia shall apply on the territory of the Republic of Croatia,
                           with the exception of the federal regulations which have not been
                           repealed pending the termination of the disassociation process
                           �����������������������������������������������������������������������������������������������������������������
                               Federal agencies may not operate on the territory of the Republic
                           of Croatia unless given specific and temporary authority by the Gov-
                           ernment of the Republic of Croatia.
                               The Republic of Croatia shall withdraw its representatives from the
                           Federal Chamber of the SFRY Assembly, as its term expired and its
                           existence rendered unnecessary in the process of disassociation.”
                       In the Part V of the Declaration, it was stated inter alia :
                              “The Republic of Croatia recognizes full sovereignty and subjectiv-
                           ity under international law of the States which come into existence as
                           a result of the disassociation from the SFRY with the existing bound-
                           aries of the SFRY and within the boundaries among themselves, as
                           laid down in the present Constitution or as decided agreement among
                           them.”
                       20. The position of the Constitutional Court as regards disputed parts
                     of the declaration was as follows :
                             “The provisions of Articles 1 and 2 of the Constitution of the SFRY
                           provide for that the Socialist Federal Republic of Yugoslavia is a

                     462

7 CIJ1077.indb 920                                                                                18/04/16 08:54

                     462 	     application of genocide convention (sep. op. kreća)

                           Federal State, as the State community of voluntarily united nations
                           and their Republics, as well as of the Autonomous Provinces of
                           Vojvodina and Kosovo — which are constituent parts of Serbia —
                           which consists of : the Socialist Republic of Bosnia and Herzegovina,
                           the Socialist Republic of Macedonia, the Socialist Republic of Slo
                           venia, the Socialist Republic of Serbia, as well as the SAP Vojvodina
                           and Kosovo which are constituent parts of the Socialist Republic of
                           Serbia, the Socialist Republic of Croatia and the Socialist Republic
                           of Montenegro.

                              The provisions of Article 5 of the Constitution of the SFRY pro-
                           vide for that the territory of the SFRY is a single united whole ; that
                           it consists of the territories of the socialist republics, and that the
                           frontiers of the SFRY may not be altered without the consent of all
                           the Republics and Autonomous Provinces.
                              Alterations of the boundaries of the SFRY are decided upon by the
                           Federal Chamber of the Assembly of the SFRY in accordance with
                           the provisions of Article 283, paragraph 4, and Article 285, para-
                           graph 6.
                              The Constitutional Court of Yugoslavia, proceeding from the men-
                           tioned provisions of the Constitution of the SFRY, assessed that
                           Parts III, sections 2 and 4, IV, sections 2 to 10 and V of the Declara-
                           tion on the Proclamation of [a] Sovereign and Independent Republic
                           of Croatia — are not in conformity with the Constitution of the
                           SFRY.”
                        The Court devoted due regard to the right to self‑determination. It
                     stated :
                              “Parts III, sections 2 and 4, IV, sections 2 to 10 and Part V of the
                           disputed declaration are based on the understanding of the Assembly
                           of the Republic of Croatia as regards the right of the Croatian people
                           to self‑determination, including the right to secession.
                              The rationale of the mentioned provisions of the Declaration on the
                           Proclamation of a Sovereign and Independent Republic of Croatia is
                           not, in the opinion of the Constitutional Court of Yugoslavia, only in
                           the expression of the right of the Croatian people to self‑determina-
                           tion, including the right to secession. The import of the disputed dec-
                           laration is the proclamation of the Republic of Croatia an independent
                           State which is not a constituent part of the SFRY, as a Federal State
                           and a State community of voluntarily united peoples and their repub-
                           lics, a proclamation of the State community of the Yugoslav nations
                           and their republics a non‑existent community, proclamation of federal
                           laws null and void on the territory of the Republic of Croatia, preven-
                           tion of the functioning of federal bodies on the territory of the Repub-
                           lic of Croatia within the jurisdiction of these bodies and ignorance of
                           certain federal institutions.

                     463

7 CIJ1077.indb 922                                                                                18/04/16 08:54

                     463 	     application of genocide convention (sep. op. kreća)

                              The right of peoples of Yugoslavia to self‑determination, including
                           the right to secession, established by the Constitution of the SFRY,
                           may not, in the opinion of the Constitutional Court of Yugoslavia,
                           be realized by unilateral acts of peoples and/or acts of the assemblies
                           of their Republics. This right can only be realized under the condi-
                           tions and in the manner to be determined, in accordance with the
                           Constitution of the SFRY, with the consent of each people and its
                           republic individually, and all of them together. Although the proce-
                           dure for the realization of the right to self‑determination including
                           the right to secession, has not been defined by the Constitution of the
                           SFRY, this does not mean that this right may be realized on the
                           grounds of unilateral acts relating to the realization of that right.”
                       21. At its meeting held on 13 November 1991, the Constitutional
                     Court, pursuant to the provision of Article 375, paragraph 1, subpara-
                     graph 4, of the Constitution of the SFRY, adopted the decision that :
                              “The provisions of Part III, sections 2 and 4, Part IV, sections 2 to
                           10 and Part V of the Declaration on the Proclamation of Sovereign
                           and Independent Republic of Croatia (Narodne novine (Official
                           Journal of the Republic of Croatia), No. 31/91) are abolished.”

                           (Decision II‑U‑No. 123/91 of 13 November 1991.)
                       22. The Federal Executive Council instituted also proceedings before
                     the Constitutional Court of Yugoslavia for the assessment of the consti-
                     tutionality of the decision of the Assembly of the Republic of Croatia on
                     the breakup of State‑legal connection with the SFRY (Narodne novine
                     (Official Journal), No. 53/91).
                       The Council considered
                           “that the said decision is not in conformity with the Constitution of
                           the SFRY and that the breakup of the State‑legal connections is pos-
                           sible only between independent and sovereign States having recog-
                           nized international legal personality, but not between a constituent
                           part of a sovereign State and that State”.
                       23. The decision of the Assembly of the Republic of Croatia determined
                     that the Republic of Croatia, as of 8 October 1991, broke up its State‑legal
                     connections on the basis of which, in common with other republics and
                     provinces, it had constituted the SFRY up to that date ; denied the legiti-
                     macy and legality of all bodies of the Federation ; recognized, on a recipro-
                     cal basis, the independence and sovereignty of the other republics of the
                     former SFRY ; guaranteed and ensured the basic rights of man and
                     national minorities, as guaranteed by the Universal Declaration of Human
                     Rights and other international documents ; and expressed the readiness to
                     enter into inter‑State associations with other States.
                       24. The Constitutional Court found that
                           “the decision of the Assembly of the Republic of Croatia on the
                           breakup of its State‑legal connection with the SFRY is not in con-

                     464

7 CIJ1077.indb 924                                                                                18/04/16 08:54

                     464 	     application of genocide convention (sep. op. kreća)

                           formity with the Constitution of the SFRY. The Constitutional Court
                           of Yugoslavia based this decision on the fact that, according to the
                           Constitution of the SFRY, the Republic of Croatia is one of the con-
                           stituent Republics of the SFRY of which it consists as a State com-
                           munity. That is why it cannot, by any unilateral act of its own,
                           breakup State‑legal connections with the federal State of which it is
                           a part nor can it, by such an act, change the status of the Republic
                           established by the Constitution of the SFRY, leave the State commu-
                           nity of the SFRY and change the boundaries of the SFRY.

                              The Constitutional Court of Yugoslavia bases its assessment also
                           on the fact that the disputed decision, contrary to the Constitution of
                           the SFRY, denies the legitimacy and legality of the federal bodies, and
                           refuses to recognize all legal acts of the federal bodies. The Constitu-
                           tion of the SFRY determines which common interests are realized
                           within the Federation and which of these common interests the Fed-
                           eration realizes through the federal bodies ; consequently, the relations
                           in the Federation cannot be altered by a unilateral act or denied its
                           rights and obligations determined by the Constitution of the SFRY
                           nor can the federal bodies be denied legitimacy and legality. Likewise,
                           it is not possible to deny recognition and validity of legal acts of the
                           federal bodies because these acts are binding and valid on the whole
                           territory of the SFRY.” (Decision II‑U‑No. 194/91 of 25 December
                           1991 published in the Official Gazette of the SFRY, No. 12/92.)

                        25. It should be emphasized that both decisions were adopted by the
                     Court in its full composition, as prescribed by the Constitution, with only
                     a judge from Slovenia not taking part in adopting the decisions.

                                                           * *
                       26. The set out legal facts provide a different picture of the so‑called
                     “Greater Serbia” project, which, by the way, has never been a policy of
                     the FRY and Serbia. The so‑called “Greater Serbia” project is rather a
                     myth or abuse in the circumstances of the Yugoslav crisis.

                        The term was adopted from the political programme of the Serbian
                     politician I. Garašanin who, in the mid‑nineteenth century, wrote “Nac-
                     ertanije” (“Draft Plan”), which was a programme on the unification of
                     Serbs on the basis of the principle of nationalities, a principle that served
                     as the legal ground for the constitution of European national States like
                     Germany and Italy. In both theory and practice, as a national ideology
                     and real policy, a similar notion of a national State existed in the past of
                     every nation in Europe.
                        27. During the Yugoslav crisis the substance of the “Greater Serbia”
                     concept, if accepted as relevant, amounted to a possibility of the expan-

                     465

7 CIJ1077.indb 926                                                                                18/04/16 08:54

                     465 	     application of genocide convention (sep. op. kreća)

                     sion of the FRY/Serbia based on the outcome of the exercise by Serbs
                     living outside Serbia of their right to self‑determination.
                        The primary political objective of the FRY and the Serbs in Croatia
                     was the safeguarding of Yugoslavia as a common home for Serbs. This
                     objective is fully understandable if one has in mind that more than a third
                     of Serbs lived outside the borders of the Federal Republic of Yugoslavia.
                     The territorial expansion of the FRY/Serbia figured as a possibility whose
                     realization would depend on the outcome of self‑determination of the
                     Serbs in Croatia and Bosnia and Herzegovina. The possibility as regards
                     Croatia was not realized primarily because of the fact that :

                             “The achievement of independence by . . . Croatia . . . can be seen
                           as a revolutionary process that has taken place beyond the control of
                           existing body of laws . . . Self‑determination has operated at the level
                           of political rhetoric, as a set of political principles legitimizing the
                           secession.” (A. Cassese, “Self‑Determination of Peoples and the
                           Recent Break‑up of USSR and Yugoslavia” in R. Macdonald (ed.),
                           Essays in Honour of Wang Tieya, 1994, pp. 141‑144.)

                                              II. Jurisdictional Issues

                                         1. Validity in Time Complex In Casu
                         28. The Court’s approach to the validity in time complex is highly
                      relaxed, in particular if one has in mind that the scope of its jurisdiction
                      ratione temporis is a key jurisdictional issue in the present case. The ques-
                      tion which, in the circumstances surrounding the case, necessarily affects
                      also the two primary forms of the jurisdiction of the Court — jurisdiction
                      ratione personae et ratione materiae (see paras. 50‑54 below). The Court
                      did not decide from which date the Genocide Convention can be consid-
                      ered binding for the Applicant, and from which date the Genocide Con-
                      vention can be considered applicable between the Parties. It did not tackle
                      at all the question of the date until which the Convention was in force in
                      relation to the SFRY, although, inter alia, it dealt with the question as to
                     whether the acts on which Croatia relied are “attributable to the SFRY at
                     the time of their commission” (Judgment, para. 114). Without these
                     parameters a proper treatment of the preliminary objection of Serbia
                     ratione temporis seems a difficult, if not an impossible task. It comes as
                      no surprise that the Court has not decided the Respondent’s other pre-
                      liminary objection in accordance with Article 79, paragraph 9, of the
                      Rules of the Court and its well established jurisprudence, but treated the
                      issue of jurisdiction ratione temporis and the related issue of admissibility
                      as accessory consequence of the decision as regards the principal claim
                      and counter-claim (see paras. 56 and 59 below). The intrinsic meaning of
                      such an action of the Court is far‑reaching — it ignores the fundamental

                     466

7 CIJ1077.indb 928                                                                                18/04/16 08:54

                     466 	    application of genocide convention (sep. op. kreća)

                     principle on which the Court’s jurisdiction is based, i.e., the principle of
                     consent.

                     1.1. From which date is the Genocide Convention in force as regards the
                           Parties individually ?
                        29. Within the set of issues relating to the validity in time of the provi-
                     sions of the Genocide Convention, one issue, on which the Parties had
                     opposing opinions ab initio, was resolved by the Judgment of the Court in
                     the preliminary objections phase, i.e., the issue of since when the Respon-
                     dent can be considered as bound by the provisions of the Convention. In
                     its Judgment on the preliminary objections raised by Serbia the Court
                     found that, by combined effect of the declaration and Note of 27 April
                     1992 and the consistent conduct at the time of its making and through the
                     years 1992‑2000, the FRY is considered as bound by the Genocide Con-
                     vention “from that date (27 April 1992) onwards” (Application of the
                     Convention on the Prevention and Punishment of the Crime of Genocide
                     (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports
                     2008 (hereinafter “2008 Judgment”), pp. 454‑455, para. 117). In that part,
                     the Judgment of the Court possesses res iudicata effects.
                        30. However, the Judgment did not provide the answer to the question
                     as to when Croatia acquired the status of a party to the Convention. The
                     Court addressed the issue in a general way stating that “Croatia depos-
                     ited a notification of succession with the Secretary‑General of the United
                     Nations on 12 October 1992” (2008 Judgment, p. 445, para. 94). The
                     Judgment states further that “[Croatia] asserted that it had already been
                     a party prior thereto as a successor State to the SFRY from the date it
                     assumed responsibility for its international relations with respect to the
                     territory, namely from 8 October 1991” (ibid.). It is up to the Court to
                     determine precisely the date, one of the two mentioned, since when Croa-
                     tia can be considered a party to the Genocide Convention.
                        31. In its 2008 Judgment, the Court did not, in fact, tackle the claim
                     of Croatia, but simply presented, in its paragraph 94, the position of Cro-
                     atia.
                        In the light of the relevant circumstances, it appears that Croatia’s
                     claim is based on :
                        Primo, its notification on succession.
                        In a letter dated 27 July 1992, received by the Secretary‑General on
                     4 August 1992 and accompanied by a list of multilateral treaties depos-
                     ited with the Secretary‑General, the Government of the Republic of Cro-
                     atia notified that :

                             “[The Government of] . . . the Republic of Croatia has decided,
                           based on the Constitutional Decision on Sovereignty and Independ-

                     467

7 CIJ1077.indb 930                                                                                18/04/16 08:54

                     467 	      application of genocide convention (sep. op. kreća)

                           ence of the Republic of Croatia of 25 June 1991 and the Decision of
                           the Croatian Parliament in respect of the territory of the Republic of
                           Croatia, by virtue of succession of the Socialist Federal Republic of
                           Yugoslavia of 8 October 1991, to be considered a party to the con-
                           ventions that Socialist Federal Republic of Yugoslavia and its prede-
                           cessor States (the Kingdom of Yugoslavia, Federal People’s Republic
                           of Yugoslavia) were parties, according to the enclosed list.

                              In conformity with the international practice, [The Government of
                           the Republic of Croatia] would like to suggest that this take effect
                           from 8 October 1991, the date on which the Republic of Croatia
                           became independent.”
                        Secundo, the depositary records for the Genocide Convention draw a
                     distinction between the date of notification deposit and the date of effect.
                     The date of the deposit of notification of succession is, according to the
                     depositary practice for the Genocide Convention, the date on which the
                     State deposited notification in reality, whereas the date of effect is the
                     expression of the consent of the State to be bound by the Convention
                     prior to that date, from the moment when it assumed responsibility for its
                     international relations with respect to its territory. In that sense, the
                     information in respect of the succession of the former federal units of the
                     SFRY to the Genocide Convention is coinciding, excepting Yugoslavia/
                     Serbia.

                                                     Action      Date of Notification/     Date of Effect
                                                                       Deposit
                     Bosnia and Herzegovina        Succession   29 December 1992         6 March 1992

                     Croatia                       Succession   12 October 1992          8 October 1991

                     Montenegro                    Succession   23 October 2006          3 June 2006

                     Slovenia                      Succession   6 July 1992              25 June 1991

                     the former Yugoslav           Succession   18 January 1994          17 November 1991
                     Republic of Macedonia
                     Yugoslavia (Serbia)            Accession   12 March 2001            10 June 2001

                     (See https://treaties.un.org/pages/showDetails.aspx?objid=0800000280027fac.)

                        Tertio, in its written pleadings Serbia “does not contest that Croatia
                     could become a contracting party to the Genocide Convention by submit-
                     ting a declaration of succession and that Croatia could thereby become a

                     468

7 CIJ1077.indb 932                                                                                18/04/16 08:54

                     468 	     application of genocide convention (sep. op. kreća)

                     contracting party thereof, effective 8 October 1991” (Counter‑Memorial
                     of Serbia, para. 370).
                        32. If the date of effect of a convention, as in the case at hand, is prior
                     to the date of the deposit of notification of succession, then undoubtedly
                     retroactivity is at work. For, notification of succession, as defined by the
                     Vienna Convention on Succession of States in Respect of Treaties (1978),
                     means “in relation to a multilateral treaty, any notification, however
                     framed or named, made by a successor State expressing its consent to be
                     considered as bound by the treaty” (Article 2 (g) of the Convention,
                     emphasis added). In this way the successor State expresses its consent to
                     be considered as bound as from the date X which is later in relation to the
                     date Y as the “date of effect” being, in fact, the date of entry of the treaty
                     into force for that State. This appears to be a clear case of retroactive
                     effect. However, retroactivity in this case is of a sui generis nature, for it
                     relates to the successor State individually.

                         33. The basis of retroactive effect of the Genocide Convention in this
                     particular case is in the combined effect of Croatia’s notification of suc-
                     cession and the consent of third States. The conclusion relies on two
                     parts :
                       (i) the connection that exists between the rules on succession with respect
                           to international treaties and the rules of treaty law ; and
                      (ii) the meaning of the instrument of “notification of succession”.

                        It is natural that the succession of States with respect to treaties has the
                     closest links with the law of treaties itself and could be regarded as deal-
                     ing with particular aspects of participation in treaties, the conclusion of
                     treaties and the application of treaties.
                        Special Rapporteur Humphrey Waldock described these links as fol-
                     lows :
                           “the Commission could not do otherwise than examine the topic of
                           succession with respect to treaties within the general framework of
                           the law of treaties . . . the principles and rules of the law of treaties
                           seemed to provide a surer guide to the problems of succession with
                           respect to treaties than any general theories of succession” (Yearbook
                           of the International Law Commission (YILC), 1968, Vol. I, p. 131,
                           para. 52).

                       Or, as stated by O’Connell :
                              “The effect of a change of sovereignty on treaties is not a manifes-
                           tation of some general principle or rule of State succession, but rather
                           a matter of treaty law and interpretation.” (D. P. O’Connell, The Law
                           of State Succession, 1956, p. 15.)

                     469

7 CIJ1077.indb 934                                                                                18/04/16 08:54

                     469 	    application of genocide convention (sep. op. kreća)

                       The determination of “notification of succession” given in Article 2 (g)
                     of the Vienna Convention on Succession of States in Respect of Treaties,
                     as well as the practice of States in the matter, cast serious doubts as to the
                     possibility of “notification of succession” as an instrument, per se, that
                     acts as a means of binding by treaty.

                        The Vienna Convention on the Law of Treaties (1969) stipulates in
                     Article 11 (means of expressing consent to be bound by a treaty) : “The
                     consent of a State to be bound by a treaty may be expressed by signature,
                     exchange of instruments constituting a treaty, ratification, acceptance,
                     approval or accession, or by any other means if so agreed.” (Emphasis
                     added.)
                        The formulation of Article 11 of the Vienna Convention on the Law of
                     Treaties does not exclude the possibility of notification of succession being
                     understood as a means of expressing approval to be bound by a treaty.
                     The operationalization of this possibility implies, however, the agreement
                     of the parties for, in the light of treaty law as expressed in Article 11 of
                     the Convention, “notification of succession” undoubtedly comes under
                     “any other means” of expressing consent to be bound by a treaty, but is
                     conditioned by the phrase “if so agreed”. From this viewpoint, “notifica‑
                     tion of succession” as a unilateral act of the State, constitutes a basis for a
                     collateral agreement in simplified form between the new State and the indi‑
                     vidual parties to its predecessor’s treaties. Thus “notification of succes-
                     sion” actually represents an abstract, generalized form of the new State’s
                     consent to be bound by the treaties of the predecessor State — a form of
                     consent which is, in each particular case, realized in conformity with the
                     general rule of the law of treaties on expression of consent to be bound by
                     a treaty contained in Article 11 of the Vienna Convention on the Law of
                     Treaties and prescribed by provisions of the concrete treaty.
                        An exception to the general rule according to which consent of the suc-
                     cessor State to be bound by a treaty has to be expressed ad casum in
                     conformity with Article 11 of the Vienna Convention on the Law of Trea-
                     ties could be envisaged in the event that, outside and independently of the
                     Convention, there exists a generally accepted rule according to which
                     “notification of succession” is considered a specific means of binding new
                     States by treaties. Grounds for such an interpretation are also provided
                     by Article 73 of the Vienna Convention on the Law of Treaties : “The
                     provisions of the present Convention shall not prejudge any question that
                     may arise in regard to a treaty from a succession of States . . .”

                        There is no credible evidence that such a rule exists. The Vienna Con-
                     vention on the Law of Treaties which is, by its nature, a combination of
                     codification and progressive development, does not make any mention in
                     its Article 11 (means of expressing consent to be bound by a treaty) of
                     “notification of succession” as such a means. This is particularly conspic-
                     uous in view of the fact that Article 11 is built on the premise of defor-
                     malization of the means of expressing consent to be bound by a treaty.

                     470

7 CIJ1077.indb 936                                                                                18/04/16 08:54

                     470 	     application of genocide convention (sep. op. kreća)

                     Since succession per se is not and cannot be an independent method of
                     expressing consent to be bound by a treaty, it follows that “notification of
                     succession” can only be a descriptive notion, a collective term for various
                     forms of expression of consent of a new State to be bound by a treaty. As
                     pointed out by Professor Annie Gruber :

                              “Since it is a unilateral act, the legal effect of which cannot depend
                           solely on the will of the author of the act, a unilateral declaration of
                           succession may be considered to contain a sort of personal proposi-
                           tion which third States may accept or reject.” (A. Gruber, Le droit
                           international de la succession d’Etats, 1986, p. 221.)
                       Finally, Article 9 of the Vienna Convention on Succession of States in
                     Respect of Treaties clearly states :
                              “Obligation or rights under treaties in force in respect of a territory
                           at the date of a succession of States do not become the obligations or
                           rights of the successor State or of other States parties to those treaties
                           by reason only of the fact that the successor State has made a unilat-
                           eral declaration providing for the continuance in force of the treaties
                           in respect of its territory.”
                        That in particular terms means that Croatia’s notification of succession
                     constitute an offer which the parties to the Convention are free to accept
                     or reject. Only acceptance by the parties to the Convention could create
                     treaty nexus between a State that make a notification and other States
                     parties to the Convention.

                          From which date can the Genocide Convention be considered as
                     1.2.
                          applicable between the Parties ?
                     Scenario one
                        34. The determining of the date on which the Convention came into
                     force in relation to the FRY/Serbia and Croatia does not solve the issue
                     of validity in time of the Convention in casu, but rather constitutes only
                     a part of that set of issues. The fact that the Genocide Convention is
                     binding on both Parties in casu is one thing, whereas its applicability in
                     terms of time between the Parties is quite another in the circumstances
                     surrounding the case.
                        The status of Croatia and the FRY/Serbia as parties to the Convention
                     only determines the jurisdictional title in casu and does not solve the issue
                     of its temporal scope because the dates from which the parties are consid-
                     ered as bound by the Convention do not coincide.

                        Croatia can be considered a contracting party to the Convention as
                     from 8 October 1991, while Serbia can be considered a contracting party
                     as from 27 April 1992.

                     471

7 CIJ1077.indb 938                                                                                18/04/16 08:54

                     471 	   application of genocide convention (sep. op. kreća)

                        35. The jurisdiction of the Court in casu is based on Article IX of the
                     Genocide Convention. In contrast to the substantive provisions of the
                     Convention which are, by their nature, integral (“Third Report on the
                     Law of Treaties” by G. Fitzmaurice, YILC, 1958, Vol. II ; United
                     Nations doc. A/CN.4/115, Art. 18, p. 27, para. 2), collective obligations
                     towards the international community as a whole (Barcelona Traction,
                     Light and Power Company, Limited (Belgium v. Spain), Second Phase,
                     Judgment, I.C.J. Reports 1970, p. 3), Article IX of the Convention, as a
                     standard compromissory clause, is a bilateral obligation between the par-
                     ties.
                        As regards the substantive obligation of the Convention, the will of the
                     contracting parties, taken individually, is only a constitutive element of
                     the will of the international community as a whole, as a basis of its
                     peremptory nature. As such, substantive obligations of the Genocide
                     Convention are binding on States “even without any conventional obliga-
                     tions” (Reservations to the Convention on the Prevention and Punishment
                     of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23).
                     Consequently, any new State is a priori subject to these rules since they
                     express the universal interest of the international community as a whole.
                        It might be concluded that, having in mind that nature of the principles
                     underlying the Genocide Convention, the then Secretary‑General Dag Ham
                     marskjöld warned the Congolese authorities during the United Nations’
                     operations in that country that the principles of the Convention must be
                     held to govern even a new State and to apply to subordinate political
                     authorities within the Congolese State (Annual Report of the Secretary‑
                     General 1960‑1961, General Assembly, Sixteenth Session, Supp. No. 1,
                     p. 11 ; H. Waldock, “General Course on Public International Law”,
                     Recueil des cours de l’Académie de droit international de La Haye, 1962,
                     Vol. 106, p. 228).

                        In contrast to its substantive provisions, the provision of Article IX
                     of the Convention, being of a contractual nature, operates on the
                     inter partes level, within the reciprocity principle.
                        Accordingly, in relation to Article IX of the Convention, a multitude of
                     bilateral links is constituted between the parties to the Genocide Conven-
                     tion depending on the consent of the parties. In other words, the obliga-
                     tions of the parties to the Convention as regards Article IX are not
                     “self‑existent, absolute and inherent” (G. Fitzmaurice, “Third Report on
                     the Law of Treaties”, YILC, 1958, Vol. II ; United Nations doc. A/
                     CN.4/115, Art. 19, p. 28), but relative, extrinsic, depending on the con-
                     sent. The distinction is, in the ILC Articles on State Responsibility,
                     derived in explicit terms. In contrast to collective obligations embodied in
                     multilateral treaties, the International Law Commission notes that there
                     exist obligations in multilateral treaties where “performance in a given
                     situation involves a relationship of a bilateral character between two par-
                     ties” (Commentary to Art. 42 (a)).

                     472

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                     472 	     application of genocide convention (sep. op. kreća)

                       As far as the bilateral relationship, or bundles of bilateral relations,
                     between the parties to a multilateral treaty, reciprocity and mutuality
                     may be regarded as an essential principle of international law (a good
                     example, in addition to the one which we are discussing, is the require-
                     ment of consent by other States to reservations to multilateral treaties).

                     1.3. Application of the principle in casu
                        36. The jurisdiction of the Court in the case at hand is based on Arti-
                     cle 36, paragraph 1, of the Statute of the Court which reads :
                              “The jurisdiction of the Court comprises all cases which the parties
                           refer to it and all matters specially provided for in the Charter of the
                           United Nations or in treaties and conventions in force.” (Emphasis
                           added.)
                     When jurisdiction is based on paragraph 1 of Article 36 :

                           “the Court is empowered only to apply the specific treaty. Where it
                           is based on paragraph 2, the Court’s jurisdiction may allow it and
                           even require it to have recourse to rules of customary international
                           law which resemble the rules of a treaty but which exist independently
                           of the treaty, if for any reason that treaty is excluded from the scope
                           of the jurisdiction of the Court in that particular case.” (S. Rosenne,
                           The Law and Practice of the International Court : 1920‑2005, 4th ed.,
                           Vol. II, 2006, pp. 648‑649, referring in a footnote to Military and
                           Paramilitary Activities in and against Nicaragua (Nicaragua v. United
                           States of America), Merits, Judgment, I.C.J. Reports 1986, p. 38,
                           para. 56.)
                        As the Genocide Convention is the only jurisdictional title in the case
                     at hand, the date on which the Convention came into force as regards
                     Croatia and the FRY/Serbia is of paramount importance. For, proceed-
                     ings between these two parties may be validly instituted only during the
                     currency of the title of jurisdiction (Northern Cameroons (Cameroon v.
                     United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1963,
                     p. 29).
                        It appears that the Genocide Convention came into force as regards
                     Croatia and the FRY/Serbia on different dates — 8 October 1991 in rela-
                     tion to Croatia and 27 April 1992 in relation to the FRY/Serbia.
                        In the light of the principle of reciprocity and mutuality, it follows that
                     the Genocide Convention is applicable between Croatia and the FRY/
                     Serbia as from 27 April 1992 as the later date, limiting the jurisdiction of
                     the Court ratione temporis to acts and situations after that date.
                        The pattern of such legal reasoning was demonstrated by the Court in
                     the Application of the International Convention on the Elimination of All
                     Forms of Racial Discrimination (Georgia v. Russian Federation) case. In
                     that case, the specific treaty was the Convention on Elimination of Racial

                     473

7 CIJ1077.indb 942                                                                                18/04/16 08:54

                     473 	     application of genocide convention (sep. op. kreća)

                     Discrimination which provides, in its Article 22, that : “Any dispute between
                     two or more States Parties with respect to the interpretation or application
                     of this Convention . . . shall, at the request of any of the parties to the dis-
                     pute, be referred to the International Court of Justice for decision . . .”.
                        Since the Convention entered into force as regards Russia on 4 Febru-
                     ary 1969 and as regards Georgia on 2 July 1999, the Court concluded that
                     “CERD entered into force between the Parties on 2 July 1999” (Applica‑
                     tion of the International Convention on the Elimination of All Forms of
                     Racial Discrimination (Georgia v. Russian Federation), Preliminary Objec‑
                     tions, Judgment, I.C.J. Reports 2011 (I), p. 81, para. 20).
                     Scenario two
                        37. This scenario is based on the principle that mutual recognition is
                     needed for establishment of treaty nexus between the contracting parties
                     to the Convention. The principle derives from the contractual nature of
                     the jurisdictional clauses operating on the inter partes level, within the
                     limits of the reciprocity. In that regard, international treaty law is a sort
                     of vinculum iuris, a legal relationship between States which recognize each
                     other.
                        38. As stated by Sir Robert Jennings and Sir Arthur Watts :
                              “Generally, a situation which is denied recognition, and the conse-
                           quences directly flowing from it, will be treated by non‑recognizing
                           States as without international legal effect.” (Oppenheim’s Interna‑
                           tional Law, 9th edition, 1992, p. 199.) ;
                     and
                              “The non‑recognized Government will not be regarded by non‑rec-
                           ognizing States as competent to make its State a party to a multilat-
                           eral treaty, or to act on behalf of the State in legal proceedings.” (Ibid.,
                           p. 198.)

                       Kelsen, although starting from the consideration that “the legal act of
                     recognition is the establishment of a fact” (H. Kelsen, “Recognition in
                     International Law — Theoretical Observations”, in L. Gross (ed.), Inter‑
                     national Law in the Twentieth Century, 1969, p. 592) finds that :
                              “The new State starts its legal existence with its declaration of state-
                           hood but it exists only for itself, not in relation to other States. This is
                           a typical border case. In order to become a subject of international law
                           in relation to other States, the new State has also to be recognized as
                           such by these other States, but the old State, too, in its relation to the
                           new State is a State, in the sense of international law, only if the new
                           State recognizes it as such. Therefore mutual recognition is necessary.”
                           (Ibid., p. 593.)
                       A similar opinion is represented by Hersch Lauterpacht. According to
                     the learned author and judge, recognition “marks the beginning of the

                     474

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                     474 	     application of genocide convention (sep. op. kreća)

                     international rights and duties of the recognized community” (Oppen‑
                     heim’s International Law : A Treatise, 8th ed., 1955, p. 128).
                        39. Such considerations are not unknown to the jurisprudence of the
                     Court. In the Certain German Interests in Polish Upper Silesia case, the
                     Permanent Court stated inter alia :

                              “Poland is not a contracting Party either to the Armistice Conven-
                           tion or to the Protocol of Spa. At the time of the conclusion of those
                           two Conventions, Poland was not recognized as a belligerent by Ger-
                           many ; it is, however, only on the basis of such recognition that an
                           armistice could have been concluded between those two Powers.

                             The Principal Allied Powers had, it is true, recognized the Polish
                           armed forces as an autonomous, allied and co‑belligerent (or belli
                           gerent) army. This army was placed under the supreme political
                           authority of the Polish National Committee with headquarters in
                           Paris. Without considering the question what was as this moment the
                           political importance of this Committee, the Court observes that these
                           facts cannot be relied on as against Germany, which had no share in
                           the transaction.” (Certain German Interests in Polish Upper Silesia,
                           Judgment No. 7, 1926, P.C.I.J., Series A, No. 7, pp. 27‑28.)
                        Judge Skubiszewski, in his dissenting opinion in the East Timor case,
                     found that “[r]ecognition leads to the validation of factual control over
                     territory and to the establishment of corresponding rights” (East Timor
                     (Portugal v. Australia), Judgment, I.C.J. Reports 1995, dissenting opin-
                     ion of Judge Skubiszewski, p. 265, para. 131 ; emphasis added).

                       In the Bosnian Genocide Case, the Court refrained from giving a clear
                     answer to the question with the explanation :

                              “For the purposes of determining its jurisdiction in this case, the
                           Court has no need to settle the question of what the effects of a situ-
                           ation of non‑recognition may be on the contractual ties between par-
                           ties to a multilateral treaty. It need only note that, even if it were to
                           be assumed that the Genocide Convention did not enter into force
                           between the Parties until the signature of the Dayton‑Paris Agree-
                           ment, all the conditions are now fulfilled to found the jurisdiction of
                           the Court ratione personae [. . .]
                              In the present case, even if it were established that the Parties, each
                           of which was bound by the Convention when the Application was filed,
                           had only been bound as between themselves with effect from 14 Decem-
                           ber 1995, the Court could not set aside its jurisdiction on this basis . . .”
                           (Application of the Convention on the Prevention and Punishment of the
                           Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
                           Objections, Judgment, I.C.J. Reports 1996 (II), pp. 613‑614, para. 26.)

                     475

7 CIJ1077.indb 946                                                                                18/04/16 08:54

                     475 	     application of genocide convention (sep. op. kreća)

                        It should be noted, however, that the pronouncement of the Court relates
                     to jurisdiction ratione personae — not to jurisdiction ratione temporis.
                        40. Recent practice confirms that the recognition of a State determines
                     the critical date as regards the beginning of the international rights and
                     duties of the recognized community vis‑à‑vis recognizing State by estab-
                     lishing a necessary treaty nexus between them. Exempli causa, Switzer-
                     land, having recognized Slovenia and Croatia on 15 January 1992,
                     declared that the treaties formerly concluded with Yugoslavia shall hence-
                     forth be applicable to bilateral relations (Revue suisse de droit interna‑
                     tional et européen, 1993, p. 709).
                        The same pattern of reasoning underlines the decision of the Supreme
                     Court of the Federal Republic of Germany of 18 December 1959 :

                              “The Contracting Parties which are already bound by a multilateral
                           convention can be bound by the accession of another State entity only
                           to the extent that the latter is a subject of international law as far as
                           they themselves are concerned . . . Any entity which exists in fact
                           requires, in addition, the recognition of its existence in some form . . .
                           In relation to other States which do not recognize it as a subject of
                           international law, such an entity cannot be a party to a treaty, let
                           alone become a party merely by a unilateral declaration, as e.g., by
                           accession to a multilateral convention, thus conferring upon itself the
                           status of a subject of international law in relation to States which do
                           not recognize it.” (International Law Reports, Vol. 28, 1959, pp. 87‑88 ;
                           emphasis in original.)

                       41. In the letter dated 5 April 1994 from the chargé d’affaires A.I. of
                     the Permanent Mission of Yugoslavia to the United Nations, addressed
                     to the Secretary‑General as the depositary of international conventions,
                     the Federal Republic of Yugoslavia stated, inter alia, that :

                              “Croatia, no doubt, is a successor State and the Federal Republic of
                           Yugoslavia does not deny that. The term ‘successor State’, however,
                           implies exclusively the change of sovereignty in a part of the territory of
                           the Yugoslav Federation in the sense of the transformation of that part
                           of the territory into an independent State. The very act of the change of
                           territorial sovereignty is not automatically linked to the transfer of the
                           rights and obligations of the Federation to the seceded part, since such
                           a transfer implies legality of the territorial change, i.e., that the territorial
                           change has been carried out in conformity with the principles of positive
                           international law.” (United Nations doc. S/1994/398, 5 April 1994.)
                        The statement makes the distinction between succession taken in
                     terms of territorial change (de facto succession) and succession as the
                     transmission of rights and obligations from predecessor State(s) (de iure
                     succession) elaborated in the doctrine of international law (H. Kelsen,

                     476

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                     476 	    application of genocide convention (sep. op. kreća)

                     Dictionnaire de la terminologie du droit international, Vol. 42, p. 314 ;
                     D. P. O’Connell, The Law of State Succession, 1956, pp. 3, 6 ; K. Zemanek,
                     “Die Wiener Konvention über die Staatennachfolge in Verträge”, Ius
                     Humanitatis : Festschrift für Alfred Verdross, 1980, p. 719 ; M. Jones,
                     “State Succession in Matter of Treaties”, British Yearbook of Interna‑
                     tional Law, Vol. 24, 1947, pp. 360‑361) and embodied in Article 6 of the
                     Vienna Convention on Succession of States in Respect of Treaties. Arti-
                     cle 6, entitled “Cases of Succession of States covered by the present Con-
                     vention”, specifies that the Convention “applies only to the effects of a
                     succession of States occurring in conformity with the international law
                     and, in particular, the principles of international law embodied in the
                     Charter of the United Nations”.
                        42. The mutual recognition took place only on the day the Dayton
                     Agreement was signed, i.e., 14 December 1995 or, alternatively, on
                     23 August 1996, the date when the Agreement on Normalization of Rela-
                     tions between the Republic of Croatia and the Federal Republic of Yugo-
                     slavia was signed (Narodne novine. Međunarodni ugovor br. 10/96).
                        Article 1 of the Agreement stipulates : “The Contracting Parties shall
                     respect each other as independent, sovereign and equal States within their
                     international borders.”
                        43. The fact that the Respondent asserted during the proceedings that
                     the Convention is applicable between the Parties as from 27 April 1992 is
                     not of decisive importance in the view of the fact that “the establishment
                     or otherwise of jurisdiction is not a matter for the parties but for the
                     Court itself” (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the
                     Court, Judgment, I.C.J. Reports 1998, p. 450, para. 37).

                        The Court must “always be satisfied that it has jurisdiction, and must
                     if necessary go into that matter proprio motu” (Appeal Relating to the
                     Jurisdiction of the ICAO Council (India v. Pakistan), Judgment,
                     I.C.J. Reports 1972, p. 52, para. 13).

                     1.4. By which date was the Genocide Convention in force as regards the
                           SFRY ?
                         44. It is hardly necessary to recall that two elements determine the
                     validity in time of a treaty or of a particular rule :
                       (i) the moment of its entering into force ; and
                      (ii) the moment of its termination in toto or of its particular rule, as Arti-
                           cle IX of the Convention.
                         The latter element is of special relevance as regards the SFRY as a
                     State party to the Genocide Convention in the circumstances surrounding
                     the case. Sedes materiae of the dispute in the light of the Applicant’s claim
                     is determined by the Court in the following terms :
                        “(1) whether the acts relied on by Croatia took place ; and, if they did,
                             whether they were contrary to the Convention ;

                     477

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                     477 	     application of genocide convention (sep. op. kreća)

                           (2) if so, whether those acts were attributable to the SFRY at the time
                               that they occurred and engaged its responsibility ; and

                           (3) if the responsibility of the SFRY had been engaged, whether the
                                FRY succeeded to that responsibility.
                              While there is no dispute that many (though not all) of the acts
                           relied upon by Croatia took place, the Parties disagree over whether
                           or not they constituted violations of the Genocide Convention. In
                           addition, Serbia rejects Croatia’s argument that Serbia has incurred
                           responsibility, on whatever basis, for those acts.” (Judgment,
                           para. 112.)
                        The only logical and legally founded conclusion is that the SFRY was
                     bound by the Convention until the moment when the process of its dis-
                     solution was complete.
                        That necessarily brings into focus the responsibility of the SFRY, for
                     the predominant number of acts which the Applicant considers as acts of
                     genocide took place before 27 April 1992 when the Respondent was
                     established as a State.
                        The Court is right in stating that “the SFRY was bound by the Con-
                     vention at the time when it is alleged that the relevant acts occurred”
                     (ibid., para. 113). However, this is only one aspect of the issue of the tem-
                     poral validity of the Genocide Convention as regards the SFRY. The
                     other aspect of the issue is the moment until which the SFRY was bound
                     by the provisions of the Genocide Convention.
                        The answer seems simple. As dissolution of a State means that it no
                     longer has legal personality (Conference for Peace in Yugoslavia, Arbi-
                     tration Commission, Opinion 8, point (2)), it appears that when the pro-
                     cess of dissolution of the SFRY was completed, its status as a State party
                     to treaties was terminated ipso facto.
                        45. The reasoning of the Court is designed in terms of retroactivity,
                     both of the substantive provisions of the Genocide Convention and of
                     Article IX, although this is denied by the Court (see, inter alia, Judgment,
                     paras. 95, 98, 99).
                        Pointing out that “the temporal scope of Article IX is necessarily linked
                     to the temporal scope of the other provisions of the Genocide Conven-
                     tion” (ibid., para. 93), which are not retroactive (ibid., para. 99), the Court
                     points, however, to its dictum in its 1996 and 2008 Judgments, which is
                     obviously based on the assumption of retroactivity.
                        In its 1996 Judgment, the Court determined :
                          “it remains for the Court to specify the scope of that jurisdiction
                          ratione temporis. In its sixth and seventh preliminary objections,
                          Yugoslavia, basing its contention on the principle of the non‑retroac-
                          tivity of legal acts, has indeed asserted as a subsidiary argument that,
                          even though the Court might have jurisdiction on the basis of the
                          Convention, it could only deal with events subsequent to the different
                          dates on which the Convention might have become applicable as

                     478

7 CIJ1077.indb 952                                                                                18/04/16 08:54

                     478 	     application of genocide convention (sep. op. kreća)

                           between the Parties. In this regard, the Court will confine itself to the
                           observation that the Genocide Convention — and in particular Arti-
                           cle IX — does not contain any clause the object or effect of which is
                           to limit in such manner the scope of its jurisdiction ratione temporis,
                           and nor did the Parties themselves make any reservation to that end,
                           either to the Convention or on the occasion of the signature of the
                           Dayton‑Paris Agreement. The Court thus finds that it has jurisdiction
                           in this case to give effect to the Genocide Convention with regard to
                           the relevant facts which have occurred since the beginning of the con-
                           flict which took place in Bosnia and Herzegovina. This finding is,
                           moreover, in accordance with the object and purpose of the Conven-
                           tion as defined by the Court in 1951 and referred to above. As a result,
                           the Court considers that it must reject Yugoslavia’s sixth and seventh
                           preliminary objections.” (Application of the Convention on the Pre
                           vention and Punishment of the Crime of Genocide (Bosnia and Herze‑
                           govina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports
                           1996 (II), p. 617, para. 34 ; reference omitted.)
                        It is perfectly true that the Genocide Convention does not contain
                     “express provision . . . limiting its jurisdiction ratione temporis” (2008 Judg-
                     ment, para. 123). However, this is not the real issue at hand. The real issue
                     is whether the Convention contains a provision that excludes the applica-
                     tion of the general rule of international law regarding the non‑retroactivity
                     of treaties, embodied in Article 28 of the Vienna Convention on the Law
                     of Treaties.
                        The substantive reason concerns the very specific approach of the
                     Court to the temporal scope of the Genocide Convention in the Bosnian
                     Genocide case. The reasoning of the Court seems to be an inversion of the
                     logic incorporated in Article 28 of the Convention on the Law of Trea-
                     ties ; it rests upon the presumption of retroactivity in contrast to Arti-
                     cle 28 which is based on presumption of non‑retroactivity.

                        Therefore, “the presumption was reversed : absent some express reser-
                     vation, the temporal limitation did not apply” (R. Kolb, The International
                     Court of Justice, 2013, p. 423).
                        Thus, “[c]ompromissory clauses (and, perhaps, generally, jurisdictional
                     clauses in treaties) are . . . aligned with the regime of the optional clause”
                     (ibid.). In the light of the jurisprudence of the Court, it may be under-
                     stood as retrospective effects of the title of jurisdiction (i.e., application of
                     a jurisdictional clause in view of the events and acts prior to its entry into
                     force) rather than retroactive effects of the jurisdictional clause at the
                     time when it was not yet in force.

                       The conclusion regarding the assumption of retroactivity in the
                     1996 Judgment becomes even more evident if the context is taken into

                     479

7 CIJ1077.indb 954                                                                                18/04/16 08:54

                     479 	     application of genocide convention (sep. op. kreća)

                     consideration. The dictum cited above is actually the response to the sixth
                     and seventh preliminary objection raised by Yugoslavia. Basing its con-
                     tention on the principle of non‑retroactivity for legal acts, Yugoslavia
                     had indeed asserted, as a subsidiary argument, that, even if the Court
                     might have jurisdiction on the basis of the Convention, it could only deal
                     with events subsequent to the different dates on which the Convention
                     might have become applicable as between the Parties.
                        45.1. In fact, the Court essentially accepted the Applicant’s interpreta-
                     tion that :
                              “Croatia responds that the Court has jurisdiction over the entirety
                           of its claim and that there is no bar to admissibility. For Croatia, the
                           essential point is that the Genocide Convention was in force in the
                           territories concerned throughout the relevant period, because the
                           SFRY was a party to the Convention. According to Croatia, the FRY
                           emerged directly from the SFRY, with the organs of the new State
                           taking over the control of those of the old State during the course of
                           1991 when the SFRY was ‘in a process of dissolution’ (the phrase
                           used by the Arbitration Commission of the Conference on Yugoslavia
                           in Opinion No. 1, 29 November 1991, 92 International Law Reports
                           (ILR), p. 162). On 27 April 1992, the FRY made a declaration which,
                           as the Court determined in 2008, had the effect of a notification of
                           succession to the Genocide Convention and other treaties to which
                           the SFRY had been party. Croatia maintains that there was, there-
                           fore, a continuous application of the Convention, that it would be
                           artificial and formalistic to confine jurisdiction to the period from
                           27 April 1992, and that a decision to limit jurisdiction to events occur-
                           ring on or after that date would create a ‘time gap’ in the protection
                           afforded by the Convention. Croatia points to the absence of any
                           temporal limitation in the terms of Article IX of the Genocide Con-
                           vention. At least by the early summer of 1991, according to Croatia,
                           the SFRY had ceased to be a functioning State and what became the
                           FRY was already a State in statu nascendi.” (Judgment, para. 81.)
                       In that sense, the Applicant is correct because, in the light of the Appli-
                     cant’s assertions, it is not a matter of retroactivity in the technical sense,
                     but in the sense of the “continuous application of the Convention”.
                       The Applicant’s assertion of the “continuous application of the Con-
                     vention” is based on :
                      (i) the rules on succession to responsibility ; and
                     (ii) the attribution of alleged acts of genocide to Serbia on the basis of
                          Article 10 (2) of the Rules on the Responsibility of States.

                        In order for the Court to act in the frame of the rule on non‑retroactiv-
                     ity, it was necessary for it, before entering into the merits of the case, to
                     establish that the Applicant’s assertions relating to the rules on succession

                     480

7 CIJ1077.indb 956                                                                                18/04/16 08:54

                     480 	     application of genocide convention (sep. op. kreća)

                     to responsibility and attribution on the basis of Article 10 (2) were
                     well‑founded, that is, that they constituted part of the applicable substan-
                     tive law in casu.
                        If established as part of the applicable substantive law, those rules
                     would produce retroactive effects independently of Article 28 of the
                     Vienna Convention on the Law of Treaties, as a proper consequence of
                     effects of the rules themselves.

                              2. Nature and Effects of the Second Preliminary Objection
                                                 of the Respondent
                        46. In its Judgment on Preliminary Objections, the Court found, inter alia,
                     that “the Respondent was bound by the Genocide Convention, including
                     Article IX thereof, at the date of the institution of the proceedings and
                     remained so bound at least until 1 November 2000” (2008 Judgment, p. 455,
                     para. 118) and “if consequently the Applicant would have been at liberty,
                     had it so desired, to submit a fresh application identical in substance to the
                     present Application, the conditions for the jurisdiction of the Court would
                     be satisfied” (ibid.). It appears that the Court, by adopting this conclusion,
                     established its jurisdiction ratione personae and ratione materiae.
                        47. The Court, however, did not pronounce itself as regards Serbia’s
                     preliminary objection ratione temporis, having found that this objection
                     “does not possess, in the circumstances of the case, an exclusively pre-
                     liminary character” (ibid., p. 460, para. 130). The objection ratione tempo‑
                     ris in the circumstances surrounding the case triggers the issues of
                     jurisdiction and admissibility as two inseparable issues :
                              “In the view of the Court, the questions of jurisdiction and admissi-
                           bility raised by Serbia’s preliminary objection ratione temporis consti-
                           tute two inseparable issues in the present case. The first issue is that of
                           the Court’s jurisdiction to determine whether breaches of the Genocide
                           Convention were committed in the light of the facts that occurred prior
                           to the date on which the FRY came into existence as a separate State,
                           capable of being a party in its own right to the Convention ; this may
                           be regarded as a question of the applicability of the obligations under
                           the Genocide Convention to the FRY before 27 April 1992. The second
                           issue, that of admissibility of the claim in relation to those facts, and
                           involving questions of attribution, concerns the consequences to be
                           drawn with regard to the responsibility of the FRY for those same facts
                           under the general rules of State responsibility. In order to be in a posi-
                           tion to make any findings on each of these issues, the Court will need
                           to have more elements before it.” (Ibid., p. 460, para. 129.)
                        48. The situation is one characterized by Judge Fitzmaurice as the dis-
                     tinction between jurisdiction and admissibility. Discussing the issue of
                     retroactivity, Judge Fitzmaurice said :
                             “But an unsuccessful jurisdictional plea leaves open the possibility
                           that a finding on the ultimate merits may still be excluded through a

                     481

7 CIJ1077.indb 958                                                                                18/04/16 08:54

                     481 	    application of genocide convention (sep. op. kreća)

                           decision given against the substantive admissibility of the claim.”
                           (G. Fitzmaurice, The Law and Procedure of the International Court of
                           Justice, Vol. II, 1986, p. 439.)
                     Thus, “substantive admissibility may arise as an issue after jurisdiction
                     has been established”.
                        49. The temporal element of the jurisdiction of the Court in casu is to
                     be regarded as part of the issue of jurisdiction ratione personae primarily,
                     producing a corresponding effect on the jurisdiction of the Court ratione
                     materiae. It, in fact, determines the scope of jurisdiction, both ratione
                     personae et ratione materiae.
                        50. The temporal scope of jurisdiction ratione personae in the case at
                     hand is highly specific. Usually, jurisdiction ratione personae means that the
                     parties to the case are parties to the Statute or have undertaken the obliga-
                     tions of a party to the Statute at the time of institution of proceedings. In
                     other words, “[i]t is necessary that the parties be under the obligation to
                     accept the jurisdiction of the Court at the time at which the determination
                     of the existence of that obligation has to be made, normally the date of the
                     institution of the proceedings” (S. Rosenne, The Law and Practice of the
                     International Court : 1920‑2005, 4th ed., Vol. II, 2006, p. 562).
                        51. In casu, the question is whether or not FRY/Serbia was a State at
                     all before 29 April 1993, in the sense of a subject of international law,
                     suitable to be equipped with the capacities for the establishment of the
                     jurisdiction of the Court ratione personae. That is the fundamental ques-
                     tion which precedes, both in terms of logic and law, the issue of jurisdic-
                     tion, constituting a segment of ius standi in iudicio. For, the status of a
                     party to the Statute or non‑party to the Statute, which has undertaken
                     the obligations as regards jurisdiction of the Court ratione personae is
                     absolutely reserved for States as legal persons in terms of international
                     law. If one or both parties to the case are not States as legal persons in
                     terms of international law, the establishment of jurisdiction of the Court
                     is an impossible mission, because a litigation before the Court implies
                     ius standi before the Court as a pre‑condition for the establishment of the
                     jurisdiction of the Court (see e.g., Legality of Use of Force (Serbia and
                     Montenegro v. Netherlands), Preliminary Objections, Judgment,
                     I.C.J. Reports 2004 (III), p. 1030, para. 45).

                       52. The temporal element in casu extends its relevance also to the juris-
                     diction of the Court ratione materiae, since the limitation of the Court’s
                     jurisdiction ratione personae produces corresponding effects on its juris-
                     diction ratione materiae. For, jurisdiction ratione materiae necessarily
                     implies that events which give rise to the reference to the Court occurred
                     during the space of time in respect to which jurisdiction ratione personae
                     exists.
                       53. The combined effects of temporal limitations of the jurisdiction of
                     the Court ratione personae and ratione materiae may have, as a conse-
                     quence, the disappearance of the dispute before the Court in part or in toto.

                     482

7 CIJ1077.indb 960                                                                                18/04/16 08:54

                     482 	     application of genocide convention (sep. op. kreća)

                        The substance of the international dispute consists of the two cumula-
                     tive elements — personal and material. The generally accepted definition
                     of a dispute, which the Court gave in the Mavrommatis Palestine Conces‑
                     sions case represents, in fact, only the material element of the concept of
                     “international dispute”. In order to qualify “a disagreement over a point
                     of law or fact, a conflict of legal views or of interests”, which is evident in
                     this specific case, as an “international dispute”, another, formal, element
                     is indispensable, i.e., that the parties in the “disagreement or conflict” be
                     States in the sense of international public law.

                        Article IX of the Genocide Convention stipulates the competence of
                     the Court regarding “disputes between the Parties”. The term “Parties”,
                     as it obviously results from Article XI of the Convention, means States,
                     either members or non‑members of the United Nations. The term “State”
                     is not used either in abstracto in the Genocide Convention, or elsewhere ;
                     it means a concrete entity which combines in its personality the constitut-
                     ing elements of a State, determined by international law. The pretention
                     of an entity to represent a State, and even recognition by other States, is
                     not, in the eyes of the law, sufficient, on its own, to make it a State within
                     the meaning of international law.

                       54. The following statement of Judge Fitzmaurice seems to rest on
                     common sense and cogent legal consideration :
                           “since the . . . State did not exist as such at the date of these acts and
                           events, these could not have constituted, in relation to it, an interna-
                           tional wrong, nor have caused it an international injury. An act which
                           did not, in relation to the party complaining of it, constitute a wrong
                           at the time it took place, obviously cannot ex post facto become
                           one . . . [T]he . . . State was not then one [i.e., a Member of the United
                           Nations], nor even, over most of the relevant period, in existence as
                           a State and separate international persona.” (Northern Cameroons
                           (Cameroon v. United Kingdom), Preliminary Objections, Judgment,
                           I.C.J. Reports 1963, separate opinion of Judge Fitzmaurice, p. 129.)

                        Responsibility, as a legal notion, does not exist in se and per se. It is
                     necessarily linked with the rights and obligations of the State as a legal
                     person in terms of international law. As the Court stated : “Responsibility
                     is the necessary corollary of a right.” (Barcelona Traction, Light and Power
                     Company, Limited (Belgium v. Spain), Second Phase, Judgment,
                     I.C.J. Reports 1970, p. 33, para. 36) ; and “Thus it is the existence or
                     absence of a right, belonging to [a State] and recognized as such by inter-
                     national law, which is decisive for the problem . . .” (ibid.).

                     483

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                     483 	     application of genocide convention (sep. op. kreća)

                                3. Treatment of Preliminary Objections to Jurisdiction
                                             and Admissibility In Casu
                        55. The general approach of the majority of the Court to the issue of
                     the preliminary objection ratione temporis raised by Serbia, as well as to
                     the arguments of the Parties pro and contra in that regard or in connec-
                     tion with that issue, has been expressed succinctly in two conclusions :
                     Primo
                              “Having concluded in its 2008 Judgment that the present dispute
                           falls within Article IX of the Genocide Convention in so far as it
                           concerns acts said to have occurred after 27 April 1992, the Court
                           now finds that, to the extent that the dispute concerns acts said to
                           have occurred before that date, it also falls within the scope of Arti-
                           cle IX and that the Court therefore has jurisdiction to rule upon the
                           entirety of Croatia’s claim. In reaching that conclusion, it is not nec-
                           essary to decide whether the FRY, and therefore Serbia, actually suc-
                           ceeded to any responsibility that might have been incurred by the
                           SFRY, any more than it is necessary to decide whether acts contrary
                           to the Genocide Convention took place before 27 April 1992 or, if
                           they did, to whom those acts were attributable.” (Judgment, para. 117.)

                     Secundo
                              “It follows from the foregoing that Croatia has failed to substan-
                           tiate its allegations that genocide was committed. Accordingly, no
                           issue of responsibility under the Convention for the commission of
                           genocide can arise in the present case. Nor can there be any question
                           of responsibility for a failure to prevent genocide, a failure to punish
                           genocide, or complicity in genocide.

                              In view of the fact that dolus specialis has not been established by
                           Croatia, its claims of conspiracy to commit genocide, direct and pub-
                           lic incitement to commit genocide, and attempt to commit genocide
                           also necessarily fail.
                              Accordingly, Croatia’s claim must be dismissed in its entirety.”
                           (Ibid., para. 441.)
                        56. The applied methodology cannot be denied a certain judicial ele-
                     gance which served, in fact, to sweep under the carpet the complex issue
                     of the admissibility of the claim in relation to the facts that occurred prior
                     to the date on which the FRY came into existence as a separate State,
                     involving, in addition, questions of attribution, and to link it with the
                     issue as to whether the principal claim and counter-claim are founded in
                     law and fact.

                     484

7 CIJ1077.indb 964                                                                                18/04/16 08:54

                     484 	     application of genocide convention (sep. op. kreća)

                        Qualifying tacitly the issue of admissibility of the claim not as inciden-
                     tal to, but rather as coincident with, the principal claim, the majority
                     reduced the fundamental issue of the jurisdiction of the Court to the level
                     of a technical question, and the jurisdictional decision to some kind of
                     accessory consequence of the decision as regards the principal claim and
                     counter-claim. In this way, the procedure as established by the law of the
                     Court has been turned on its head.
                        57. In the case at hand, such a reduction does not produce material
                     consequences for the outcome of the dispute. However, this fact does not
                     amnesty or vindicate the action undertaken by the majority. Although
                     designed ad casum, its implications as regards future jurisprudence of the
                     Court cannot a priori be excluded.
                        58. The preliminary objection of Serbia ratione temporis has been qual-
                     ified by the Court as an objection which “does not possess, in the circum-
                     stances of the case, an exclusively preliminary character” (2008 Judgment,
                     para. 130).
                        What is the inherent meaning of this qualification ? Does it suggest that
                     an objection which does not possess, in the circumstances of the case, an
                     exclusively preliminary character loses its preliminary quality and gives
                     the Court discretionary powers to act in accordance with the broadly
                     conceived and undefined formula “as good administration of justice
                     requires” ? The answer to this question, it appears, has to be negative.
                        58.1. The qualification that “the objection does not possess, in the cir-
                     cumstances of the case, an exclusively preliminary character” implies that
                     the objection in issue does “possess, at least in principle, an intrinsic pre-
                     liminary character, which may only be partially affected by the circum-
                     stances of the case” (E. J. de Aréchaga, “The Amendments to the Rules
                     of Procedure of the International Court of Justice”, American Journal of
                     International Law, Vol. 67, 1973, p. 15). Ratio legis of the introduction of
                     objections having no exclusively preliminary character in the nomencla-
                     ture of the decisions of the Court as regards preliminary character in
                     Article 79 of the Rules of Court primarily concerns practical effects in a
                     case when the Court, on the basis of provision of Article 62 of the
                     1946 Rules of Court, used its power to join an objection to the merits
                     “whenever the interests of the good administration of justice require it”
                     (Panevezys‑Saldutiskis Railway, Order of 30 June 1938, P.C.I.J., Series
                     A/B, No. 75, p. 56 ; Military and Paramilitary Activities in and
                     against Nicaragua (Nicaragua v. United States of America), Merits, Judg‑
                     ment, I.C.J. Reports 1986, p. 29, para. 39). When
                           “the character of the objections is not exclusively preliminary because
                           they contain both preliminary aspects and other aspects relating to the
                           merits, they will have to be dealt with at the stage of merits. This
                           approach . . . tends to discourage the unnecessary prolongation of pro‑
                           ceedings at the jurisdictional stage.” (Military and Paramilitary Activi‑
                           ties in and against Nicaragua (Nicaragua v. United States of America),
                           Merits, Judgment, I.C.J. Reports 1986, p. 31, para. 41 ; emphasis added.)

                     485

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                     485 	     application of genocide convention (sep. op. kreća)

                        58.2. The characterization of the particular objection does not deprive
                     the objection of its preliminary character. As observed by Judge Aréchaga,
                     who was one of the architects of the revision of the 1972 Rules, the concrete
                     qualification means that “the objection that has been raised by a party as
                     preliminary is so intertwined with elements pertaining to the merits that a
                     hearing of those issues would siphon off into the preliminary stage the
                     whole of the case” (E. J. de Aréchaga, op. cit., p. 17) with the risk of “adju-
                     dicating on questions which appertain to the merits of the case or of
                     prejudging their solution” (Panevezys‑Saldutiskis Railway, Preliminary

                     Objections, Order of 30 June 1938, P.C.I.J., Series A/B, No. 75, p. 56).
                        In other words, the fact that the objection, in the circumstances of the
                     case, does not possess an exclusively preliminary character, does not
                     deprive it of its material content in the sense of challenging the jurisdiction
                     of the Court, in whole or in part. Or, as Rosenne says, there is “a formal
                     distinction between the objection as a shell . . . and its material content”
                     (S. Rosenne, The Law and Practice of the International Court : 1920‑2005,
                     4th ed., Vol. II, 2006, p. 894). As such, it must be pronounced by the
                     Court in the final judgment before pronouncement on the principal claim.
                        The treatment of such an objection that was found to be not exclusively
                     preliminary in nature at the merits phase does not mean that the objec-
                     tion has been incorporated in the meritum of the dispute, but simply that
                     the Court must bring decision on the objection within the merits phase as
                     a jurisdictional issue. The ratio of the transfer of the objection from the
                     preliminary objection phase to the merits phase is not the consequence of
                     the change in its jurisdictional nature, but of relation to cognition of the
                     facts, and law indispensable for a decision on an eminently jurisdictional
                     matter. The Court itself in the 2008 Judgment stated, inter alia, that :

                              “In order to be in a position to make any findings on each of these
                           issues, [the issue of its jurisdiction, as regards facts that occurred prior
                           to 27 April 1992 and the issue of admissibility of the claim] the Court
                           will need to have more elements before it.” (2008 Judgment, p. 460,
                           para. 129 ; emphasis added.)
                       58.3. Such a solution is dictated, it appears, by the nature of the juris-
                     diction of the Court. The issue of jurisdiction is of fundamental impor-
                     tance for the judicial activity of the Court, being a questio iuris (Border
                     and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction
                     and Admissibility, Judgment, I.C.J. Reports 1988, p. 76, para. 16) and a
                     matter of the international public order (intervention of Judge M. Yova-
                     novitch, Preliminary Session of the Court, Preparation of the Rules of
                     Court of 30 January-24 March 1922) P.C.I.J., Series D, No. 2, p. 59 ;
                     R. Monaco, “Observations sur la hiérarchie des sources du droit inter
                     national”, Völkerrecht als Rechtsordnung Internationale Gerichtsbarkeit
                     Mensenrechte : Festschrift für H. Mosler, 1983, pp. 607‑608).
                       The importance of the issue necessitates that “[t]he Court must . . .
                     always be satisfied that it has jurisdiction, and must if necessary go into

                     486

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                     486 	    application of genocide convention (sep. op. kreća)

                     that matter proprio motu” (Appeal Relating to the Jurisdiction of the ICAO
                     Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 52, para. 13).
                        Even the 2008 Judgment, which is res iudicata for the Court, stated in
                     the “Conclusion” that it “will consider the preliminary objection that it
                     has found to be not of an exclusively preliminary character when it reaches
                     the merits of the case” (2008 Judgment, p. 465, para. 145 ; emphasis
                     added).
                        58.4. The Court adjudicates on the issue of its jurisdiction through opera-
                     tion of the principle compétence de la compétence. The power of the Court to
                     determine whether it has jurisdiction in casu, emanating from the general
                     principle of compétence de la compétence, should be distinguished from the
                     corresponding power of the Court to determine the extent of its jurisdiction.
                        The extent of jurisdiction of the Court is not a matter to be decided on
                     the basis of the principle of compétence de la compétence solely as a func-
                     tional norm, but on the basis of substantive norms of the Statute defining
                     the scope of the exercise of the judicial function of the Court. In that
                     regard, the basic norm of the consensual nature of the Court’s jurisdic-
                     tion — some sort of a constitutional norm of the law of the Court, and of
                     international tribunals as well — is of relevance.

                        Already in its Judgment No. 2, the Permanent Court of International
                     Justice clearly established the limits of its jurisdiction by stating that “the
                     Court, bearing in mind the fact that its jurisdiction is limited, that it is
                     invariably based on . . . consent . . . and only exists in so far as this con-
                     sent has been given” (Mavrommatis Palestine Concessions, Judgment
                     No. 2, 1924, P.C.I.J., Series A, p. 16).
                        59. By deciding that, in view of the absence of genocide in terms of
                     Article II of the Convention, there is no need for the Court to enter into
                     consideration of the objection, the majority linked the issue of jurisdic-
                     tion with the principal claim and thus made a Copernican turnaround,
                     paradoxical in the light of the relevant rules of the law of the Court, run-
                     ning counter to the general rule that, without established jurisdiction, the
                     Court not only cannot determine the case, but cannot even hear it.
                        The adoption of a decision on the jurisdictional issue in the merits
                     phase is an act, indeed a condition for the determination of the principal
                     claim.
                        59.1. A proper pattern of treatment of a preliminary objection not
                     having, in the circumstances of the case, an exclusively preliminary char-
                     acter, is demonstrated in the Land and Maritime Boundary case. The
                     Court, following the well‑established jurisprudence on the issue, stated,
                     inter alia :
                             “The Court would first observe that its finding in its Judgment of
                           11 June 1998 on the eight preliminary objection of Nigeria that that
                           preliminary objection did ‘not have, in the circumstances of the case,
                           an exclusively preliminary character” (I.C.J. Reports 1998, p. 326,
                           para. 118 (2)) requires it to deal now with the preliminary objection

                     487

7 CIJ1077.indb 970                                                                                18/04/16 08:54

                     487 	     application of genocide convention (sep. op. kreća)

                           before proceeding further on the merits. That this is so follows from
                           the provision on preliminary objections adopted by the Court in its
                           Rules in 1972 and retained in 1978, which provide that the Court is
                           to give a decision

                               ‘by which it shall either uphold the objection, reject it, or declare
                               that the objection does not possess in the circumstances of the
                               case, an exclusively preliminary character. If the Court rejects the
                               objection or declares that it does not possess an exclusively pre-
                               liminary character, it shall fix time‑limits for the further proceed
                               ings.’ (Rules of Court, Art. 79, para. 7.)
                              (See Questions of Interpretation and Application of the 1971 Montreal
                           Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
                           Jamahiriya v. United Kingdom), Preliminary Objections, Judgment,
                           I.C.J. Reports 1998, pp. 27‑28, paras. 49‑50 ; Questions of Interpretation
                           and Application of the 1971 Montreal Convention arising from the Aerial
                           Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of Amer‑
                           ica), Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 132‑134,
                           paras. 48‑49 ; Military and Paramilitary Activities in and against Nicara‑
                           gua (Nicaragua v. United States of America), Merits, Judgment,
                           I.C.J. Reports 1986, p. 30, para. 40.) Since Nigeria maintains its objec-
                           tion, the Court must now rule on it.” (Land and Maritime Boundary
                           between Cameroon and Nigeria (Cameroon v. Nigeria : Equatorial Guinea
                           intervening), Judgment, I.C.J. Reports 2002, p. 420, para. 237.)

                                  4. Succession to Responsibility as a Purported Rule
                                             of General International Law
                        60. The impression is that the Court qualified succession to responsi-
                     bility as a rule of general international law with amazing ease. It found
                     that “the rules on succession . . . come into play in the present case fall
                     into the same category as those on treaty interpretation and responsibility
                     of States referred to” in the Judgment of the Court in the Bosnia and Her‑
                     zegovina v. Serbia and Montenegro case (Application of the Convention on
                     the Prevention and Punishment of the Crime of Genocide (Bosnia and Her‑
                     zegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I),
                     hereinafter “2007 Judgment”) (Judgment, para. 115 ; emphasis added).

                        61. The Court gives no indication of any source of international law
                     that would vindicate the qualification that the rules of succession of States
                     to responsibility pertain to the corpus of rules of general international law.
                     Noting the arguments of the Parties concerning succession to responsi
                     bility as status controversiae, the Court only points to the reliance of the
                     Applicant on
                           “the award of the arbitration tribunal in the Lighthouses Arbitration
                           between France and Greece, Claims Nos. 11 and 4, 24 July 1956 (United

                     488

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                     488 	     application of genocide convention (sep. op. kreća)

                           Nations, Reports of International Arbitral Awards (RIAA), Vol. XII,
                           p. 155 ; International Law Reports (ILR), Vol. 23, 1956, p. 81), which
                           stated that the responsibility of a State might be transferred to a suc-
                           cessor if the facts were such as to make it appropriate to hold the
                           latter responsible for the former’s wrongdoing” (Judgment, para. 107).

                        It appears, in the light of the relevant facts, that the Court, by taking
                     such a position, is heading precisely in the direction opposite to that
                     contained in its own dictum in the Fisheries Jurisdiction case : “the Court,
                     as a court of law, cannot render judgment sub specie legis ferendae, or
                     anticipate the law before legislator has laid it down” (Fisheries Jurisdic‑
                     tion (United Kingdom v. Iceland), Merits, Judgment, I.C.J. Reports 1974,
                     pp. 23‑24, para. 53 ; Fisheries Jurisdiction (Federal Republic of Germany v.
                     Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 192, para. 45).

                        62. Arbitral jurisprudence as regards succession to responsibility offers
                     only a few isolated decisions. Seemingly they stand on diametrically
                     opposed positions.
                        The paradigm of succession to responsibility represents, in essence, the
                     French claim in the Agios Nikolaos case within the Lighthouses Arbitra‑
                     tion (Claim No. 11, United Nations, RIAA, Vol. XII, pp. 161 et seq.
                     p. 190 ; ILR, Vol. 23, 1956, pp. 81 et seq., pp. 88‑90) in which the claim
                     relating to the construction of lighthouses at Spada and Elaphonissi was
                     dismissed.

                       The position of the arbitration was expressed in clear terms :

                              “In view of this division between the three parties concerned of the
                           responsibility for the events of 1903 to 1908, the Tribunal sees no real
                           reason to saddle, after the event, Greece, who had absolutely nothing
                           to do with the dealings between those parties, with this responsibility,
                           in whole or in part. Not even the part of the general responsibility for
                           the events of 1903 to 1908 to be imputed to the autonomous State of
                           Crete can be regarded as having devolved upon Greece. Such a trans-
                           mission of responsibility is not justified in the present case either from
                           the particular point of view of the final succession of Greece to the
                           rights and obligations of the concession in 1923/1924 — if only for
                           the reason that the said events took place outside the scope of the
                           concession — or from the more general point of view of its succession
                           in 1913 to the territorial sovereignty over Crete.” (Ibid., p. 89.)
                       The paradigm of non‑succession to responsibility is expressed also in
                     the Brown case in which the United States claim against Great Britain,
                     based on succession to responsibility, was disallowed by the Anglo‑

                     489

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                     489 	     application of genocide convention (sep. op. kreća)

                     American Claims Commission in November 1923 (United Nations,
                     RIAA, Vol. VI, p. 120).
                        63. The sedes materiae of the decision in the Agios Nikolaos case seems
                     clear. The Award stated, inter alia :

                              “In the present case, we are concerned with the violation of a term
                           of a contract by the legislative power of an autonomous island State
                           the population of which had for decades passionately aspired to be
                           united, by force of arms if necessary, with Greece, which was regarded
                           as the mother country — a violation which was recognized by the
                           State itself as constituting a breach of the concession contract, which
                           was effected in favour of a shipping company belonging to the same
                           mother‑country, which was endorsed by the latter as if it had been a
                           regular transaction and which was eventually continued by her, even
                           after the acquisition of territorial sovereignty over the island in ques-
                           tion. In these circumstances, the Tribunal can only come to the con-
                           clusion that Greece, having adopted the illegal conduct of Crete in its
                           recent past as autonomous State, is bound, as successor State, to take
                           upon its charge the financial consequences of the breach of the con-
                           cession contract.” (ILR, Vol. 23, 1956, p. 92.)
                       The Court further stated that “the Greek Government with good rea-
                     son commenced by recognizing its own responsibility” (ibid.).

                       64. In the light of the facts of the case, it appears that the qualification
                     of the decision as the expression of the acceptance of succession to res-
                     ponsibility is exaggerated. For, the last fact tends to speak in favour of
                     the perception of the responsibility of Greece as a “direct responsibility
                     for tort of her own” (J. H. W. Verzijl, International Law in Historical
                     Perspective, Part VII, 1974, p. 223). The position of the arbitral tribunal
                     appears to be an obiter dictum rather than a precedent stricto sensu.

                        Besides the intrinsic reasons which make relative the scope of the deci-
                     sion taken in the Agios Nikolaos case, also relevant in the case at hand are
                     some extrinsic reasons.
                        Primo, the Lighthouse Arbitration considered disputes between natural
                     and legal persons, on the one hand, and a territorial State, on the other,
                     disputes which, in particular in the continental legal tradition, appertain
                     to international private law, rather than international public law. The
                     legal basis in a dispute is provided, as a rule, by concessionary contracts.
                     As the Court stated in the Anglo‑Iranian Oil Co. case, the concessionary
                     contract signed between the Government of a State and of a foreign oil
                     company :

                           “has a single purpose : the purpose of regulating the relations between
                           that Government and the Company in regard to the concession. It

                     490

7 CIJ1077.indb 976                                                                                18/04/16 08:54

                     490 	   application of genocide convention (sep. op. kreća)

                          does not regulate in any way the relations between the two Governments
                          [the Government and the Company’s national State] . . . The fact that
                          the concessionary contract was reported to the Council . . . does not
                          convert its terms into the terms of a treaty by which [a Government]
                          is bound vis‑à‑vis [another Government]” (Anglo-Iranian Oil Co.
                          (United Kingdom v. Iran), Preliminary Objection, Judgment,
                          I.C.J. Reports 1952, p. 112 ; emphasis added).
                        Secundo, jurisdiction of arbitration courts and mixed commissions is,
                     as a rule, based on arbitral compromises. That fact, per se, imposes cer-
                     tain limits on the scope of adopted decisions. In the Barcelona Traction
                     case, the Court clearly determined its position in respect of jurisprudence
                     of arbitration courts and mixed claims commissions as regards their
                     impact on general international law. The Court stated :

                             “However, in most cases the decisions cited rested upon the terms
                          of instruments establishing the jurisdiction of the tribunal or claims
                          commission and determining what rights might enjoy protection ; they
                          cannot therefore give rise to generalization going beyond the special
                          circumstances of each case. Other decisions, allowing or disallowing
                          claims by way of exception, are not, in view of the particular facts
                          concerned, directly relevant in the present case.” (Barcelona Traction,
                          Light and Power Company, Limited (New Application : 1962)(Bel‑
                          gium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 40,
                          para. 63.)
                       Tertio, the jurisprudence of the Court, as a rule, does not recognize the
                     quality of juridical precedent to decisions of arbitral tribunals.
                       It is pointed out that “[s]pecific references in the decisions of the Court
                     to the jurisprudence of arbitral tribunals have in the past been extremely
                     rare”, and “in fact partake more of the nature of a reference to State
                     practice than that of recourse to a judicial precedent” (H. Thirlway, The
                     Law and Procedure of the International Court of Justice : Fifty Years of
                     Jurisprudence, Vol. I, 2013, p. 248).
                       65. In addition to cases from arbitral practice, the issue of succession
                     to responsibility is the subject of doctrinal opinions and, in the form of an
                     exception to the general rule, of Article 10 (2) of the International Law
                     Commission Articles on State Responsibility.

                        65.1. In the light of the status versiae et controversiae in the case at
                     hand — whether the FRY succeeded to alleged responsibility of the
                     SFRY for acts and omissions contrary to the Genocide Convention —
                     these would hardly seem applicable. The opinions expressed in that regard
                     are a doctrinal plea for the formulation of a comprehensive doctrine of
                     succession to responsibility rather than an all‑embracing and comprehen-
                     sive doctrine per se.
                        Namely, the focus of the theory of succession to responsibility is on the
                     responsibility for delictual debts, as a rule in the relations between the

                     491

7 CIJ1077.indb 978                                                                                18/04/16 08:54

                     491 	    application of genocide convention (sep. op. kreća)

                     State and physical or legal personalities which possess specific character-
                     istics. It is based on the doctrine of acquired rights (droits acquis), under-
                     stood as the rights held by private citizens at the time of succession to
                     sovereignty (see German Settlers in Poland, Advisory Opinion, 1923,
                     P.C.I.J., Series B, No. 6, p. 36).
                        Besides the doctrine of acquired rights, the appropriate support is the
                     passage of rights and obligations principle and the principle of interna-
                     tional servitudes (M. J. Volkovitsch, “Righting Wrongs : Towards a New
                     Theory of State Succession to Responsibility for International Delicts”,
                     Columbia Law Review, Vol. 92, 1992, pp. 2162‑2214). In addition to the
                     principles of international law, support for succession to responsibility
                     can also be found in borrowing from internal law in the form of the prin-
                     ciple of unjust enrichment (ibid., p. 2210 ; P. Dumberry, State Succession
                     to International Responsibility, 2007, p. 263).
                        65.2. The said principles are, by their nature, unsuitable to uphold the
                     idea of responsibility in personam, such as responsibility for violation of
                     the Genocide Convention, although they carry certain weight as regards
                     responsibility in rem.

                        Responsibility in personam is too much linked with the legal identity
                     and continuity of the State which makes it difficult to ascertain it in terms
                     of ipso iure succession to responsibility without prejudice to the funda-
                     mental principles of equality and independence of States.
                        The legal identity and continuity of a State appears to be the powerful
                     argument in favour of the general principle of action personalis mori‑
                     tur cum persona.
                        65.3. It is no coincidence that the perception of the notion of legal
                     identity and continuity on the part of the supporters of succession to
                     responsibility well exceeds the generally accepted meaning of that notion.
                     It is said, exempli causa that : “‘successor States’ are those nations which
                     take over the international identity of ‘Predecessor States’” (M. J. Volko
                     vitsch, op. cit., p. 2164, fn. 1 ; emphasis added), although the notions “suc-
                     cessor State(s)” and “predecessor State” are mutually exclusive. Or, in the
                     elaborated concept of “shared identity”, which is, in fact, the negation of
                     legal identity and continuity as usually understood, the crucial role is
                     given to the notion of “organic substitution”, according to which, even in
                     the case where succession took place, “organic forces” or “constitutive
                     elements” of the predecessor State (its territory and its population) sur-
                     vive its disintegration, being only affected, but not extinguished (P. Dum
                     berry, State Succession to International Responsibility, 2007, pp. 49‑50).
                     The concept implies that the successor State is equipped with an identity
                     similar to that held by the predecessor State. Precisely “shared identity”
                     justifies the transfer of any responsibility that existed at the time of the
                     succession.
                        65.4. It appears that the concept of “organic substitution” fails to take
                     into account the element of legal identity and continuity as the very sub-
                     stance of international personality in the frame of territorial changes. It

                     492

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                     492 	    application of genocide convention (sep. op. kreća)

                     reduces the State to its physical attributes (territory, population), which
                     are also possessed by territorial non‑State entities devoid of the quality of
                     subjects in terms of international law.
                        “Shared identity” as the product of the concept of “organic substitu-
                     tion” portrays new States as a specific mix of the successor State and the
                     continuator State expressed in percentage share, because each of them
                     possesses a part of the territory and population of the predecessor State.
                     It contains an element of legal absurdity, which is, perhaps, best illus-
                     trated in the case when, after separation of any part(s) of its territory, the
                     predecessor State continues to exist, both States, the predecessor State
                     and the newly emerged successor State possess identity — the successor
                     State with its predecessor State, whereas the predecessor State, retains its
                     own.
                        To sum up, it seems clear that, in the present phase of development,
                     succession to responsibility in personam is not a part of the corpus of gen-
                     eral international law. Insurmountable legal obstacles lie, to use the Inter-
                     national Law Commission explanation, in the fact that entitlement “to
                     invoke State responsibility (exists) when an obligation owed to that State
                     individually was breached” (Draft Articles on State Responsibility
                     Adopted by the Commission on First Reading, 1996, Report of the Inter-
                     national Law Commission on the Work of Its Forty‑Eighth Session,
                     6 May‑26 July 1996, General Assembly Official Records, United Nations
                     doc. A/51/10, in relation to Article 42 (a) ; emphasis in original). In the
                     present context, individually means the State as an individual legal per-
                     sonality, equipped with its own rights and obligations.

                        Succession to responsibility in personam is not stricto sensu legally pos-
                     sible. As regards this kind of responsibility, it could be said that applica-
                     ble is the parallel with “an incoming tenant [who] is bound by the
                     obligations of his predecessor who has been evicted, or a son by the obli-
                     gations of his parent” (T. Baty, “The Obligations of Extinct States”, Yale
                     Law Journal, Vol. 35, 1925‑1926, p. 434), at least when speaking about
                     violations of the rules of international criminal law based on the principle
                     of subjective responsibility. Even if responsibility of a State for acts or
                     omissions of another State is established on the basis of consented succes-
                     sion to responsibility, it is not stricto sensu a matter of succession to
                     responsibility as subjective, of the intuitu personae category, but of assum-
                     ing the consequences of responsibility in a proper form.

                     5. Rule in Article 10 (2) of the Articles on the Responsibility of States for
                                   Internationally Wrongful Acts as a Purported
                                         Rule of General International Law
                       66. In the commentary to Article 10 (2) of the Articles on State
                     Responsibility it is stated, inter alia, that “[a]rbitral decisions, together

                     493

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                     493 	    application of genocide convention (sep. op. kreća)

                     with State practice and the literature, indicate a general acceptance of the
                     two positive attribution rules in Article 10” (J. Crawford, The Interna‑
                     tional Law Commission’s Articles on State Responsibility — Introduction,
                     Text and Commentaries, 2002, p. 119, para. 12).
                        The two positive attribution rules to which this refers are attribution of
                     the “conduct of an insurrectional movement which becomes the new
                     Government of a State” (para. 1 of Art. 10) and attribution of the “con-
                     duct of a movement, insurrectional or other, which succeeds in establish-
                     ing a new State” (para. 2 of Art. 10).
                        66.1. Consequently, it is a matter of two distinct rules (Counsel of Cro-
                     atia said that there is “very good reason to cover both situations”) (Reply
                     of Croatia, para. 7.54) by the practice relating to Article 10 as a whole.
                     This position is, however, questionable in view of the differences which
                     exist between these situations.

                        In case of revolutionary change of Government, the State remains the
                     identical subject of international law, responsible on the basis of the fact
                     that “it represented ab initio a changing national will, crystallizing in the
                     fully successful result” (Bolivar Railway Company, United Nations, RIAA,
                     1903, Vol. IX, p. 445). Basically, its responsibility derives from the gene-
                     ral principle underlying the rule provided by Article 27 of the Vienna
                     Convention on the Law of Treaties, which stipulates that “[a] party may
                     not invoke the provisions of its internal law as justification for its failure
                     to perform a treaty”. Consequently, in the case of change of Government,
                     responsibility of the State is genuine, does not imply any transfer of res-
                     ponsibility because in question is the same and identical State in terms of
                     legal personality, a personality with unimpaired rights and obligations. In
                     a colloquial sense, as opposed to the legal one, it is possible to speak only
                     of a transfer of responsibility from one Government to another Govern-
                     ment.

                        As regards “a movement, insurrectional or other which succeeds in esta-
                     blishing a new State”, the situation is entirely different. A new State is a new
                     legal person in terms of international law, whose corpus of rights and obli-
                     gations does not coincide with the rights and obligations of its parent State,
                     but is determined on the basis of the rules of succession of States. From a
                     legal point of view, responsibility of the new State is essentially an issue of
                     the law of succession rather than an issue of State responsibility. Or, a com-
                     bination of both. It is logical to presume that this is the reason why it is
                     pointed out that “Article 10 concerns the special case of responsibility . . .”
                     (J. Crawford, op. cit., p. 93, para. 8).
                        66.2. An additional reason against the treatment of paragraphs 1 and
                     2 of Article 10 as a whole is of a formal nature and concerns the postu-
                     lates of legal logic. Basically, such a treatment would imply analogy or
                     extensive interpretation of paragraph 1.

                     494

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                     494 	    application of genocide convention (sep. op. kreća)

                        Analogy and extensive interpretation, as legal vehicles, are used in case
                     of the existence of lacunae which are thus filled in by a rule which has not
                     originally been created for the concrete situation/or relation, or by inter-
                     pretation of the existing rule as if it were created for that specific situa-
                     tion.
                        In the concrete case there are no lacunae — the conduct of “insurrec-
                     tional movement which [become] a new Government” and movements
                     “insurrectional or other, which [succeed] in establishing a new State” are
                     regulated by two distinct rules expressed in paragraphs 1 and 2 of Arti-
                     cle 10 ; hence, a rational and legal basis for the application of analogy or
                     extensive interpretation of paragraph 1 is non‑existent.

                        It appears, however, that the arbitral awards referred to in the Commen-
                     tary to Article 10 of the Draft Articles on State Responsibility relate to
                     different objects (the general principle of non‑responsibility for rebellions
                     (J. Crawford, op. cit., p. 116) ; the principle that liability could be estab-
                     lished in the case of a lack of good faith or negligence in suppressing an
                     insurrection (ibid.) ; and, the responsibility for successful revolutionary/
                     insurrectional movements (ibid., p. 113)).

                        The only cases which relate to the concrete issue are stated in para-
                     graph 14 of the Commentary (ibid., p. 120), including the explanation
                     that “more recent decisions and practice do not, on the whole, give any
                     reason to doubt the propositions contained in Article 10”. It appears,
                     however, that such a characterization is, in terms of law, wishful thinking
                     rather than a respectable argument.
                        The decision in Minister of Defence, Namibia v. Mwandinghi 1992 (2)
                     seems to involve the liability of the newly independent State for actions of
                     the predecessor State. But, it is based on a constitutional provision, Arti-
                     cle 140 (3) of the Republic of Namibia, which states that the said Repub-
                     lic inherited liability for “anything done” by the predecessor State (see
                     ILR, Vol. 91, 1991, p. 341).

                        Although based on municipal and constitutional law, the decision dis-
                     cussed some elements of international law. However, the position of the
                     court at the first instance appears to be contrary to the rule contained in
                     paragraph 2 of Article 10. The court found that “in international law a
                     new State is not liable for the delicts committed by its predecessor” (ibid.,
                     p. 353).

                        On appeal, the reasoning of the court was founded on constitutional
                     interpretation exclusively (ibid., p. 361).
                        The decision in Ontario Ltd. v. Crispus Kiyonga and Others is also of
                     little, if any relevance, to the issue at hand. The case considered whether
                     a contract concluded with a rebel movement seeking to overthrow the
                     Government could be enforceable against the Government when that
                     movement subsequently seized power. The applicant claims that the con-

                     495

7 CIJ1077.indb 986                                                                                18/04/16 08:54

                     495 	     application of genocide convention (sep. op. kreća)

                     tract was not illegal and that once the revolution succeeded, the actions of
                     the revolutionary movement were validated. The Government argued
                     that the revolutionary movement did not have any legal personality until
                     they achieved power and thus they could not have entered into the con-
                     tract and could not, at that time, have signed a contract binding on the
                     Government of Uganda. The Judgment is based entirely on municipal
                     contract law and does not refer to international law. It upholds the above
                     claims of the Ugandan Government. The essential finding is that :

                              “It is true that for a contract to be binding it must be between
                           persons existing at the time the contract is made : Kelner v. Baxter
                           (1866) LR 2 CP 174. The case is also authority for the legal proposi-
                           tion that a person or persons cannot act as an agent of a non‑existent
                           principal because an act which cannot be done by a principal cannot
                           be done by him through an agent. Again at common law there are
                           contracts which are illegal in the sense that they are entered into to
                           commit crimes, and they are enforceable.” (44123 Ontario Ltd. v.
                           Crispus Kiyonga and Others (1992) 11 Kampala LR 14, pp. 20‑21 ;
                           ILR, Vol. 103, p. 259, p. 266 (High Court, Uganda).)

                        67. In the Commentary of the International Law Commission, together
                     with State practice and arbitral decisions, literature is also cited as an
                     indicator of general acceptance of the rules contained in Article 100
                     (J. Crawford, op. cit., p. 119, para. 12).
                        The Commentary, however, mentions only one Article which concerns
                     insurrectional movements which succeed in establishing a new State
                     (H. Atlam, “International Liberation Movement and International Respon-
                     sibility”, in B. Simma and M. Spinedi (eds.), United Nations Codification
                     of State Responsibility, 1987, p. 35).
                        The Arbitral Tribunal in the Lighthouse Arbitration stressed the unsatis-
                     factory nature of the theoretical analysis of the issue, speaking, moreover,
                     of the “chaotic state of authoritative writings” (Lighthouses Arbitration
                     between France and Greece, Claims Nos. 11 and 4, 24 July 1956 (United
                     Nations, RIAA, Vol. XII, p. 155 ; 23 ILR 81, p. 91). Dumberry, the author
                     of a unique systematic work on the issue of succession to international
                     responsibility (P. Dumberry, State Succession to International Responsibil‑
                     ity, 2007), in concluding a comprehensive research into the responsibility
                     of an insurrectional movement that succeeds in establishing a new State
                     says :

                             “The work of the International Law Commission and doctrine has
                           long considered as well‑established principle of international law the fact

                     496

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                     496 	     application of genocide convention (sep. op. kreća)

                           that whenever an insurrectional movement succeeds in creating a new
                           State, the new State should be held responsible for obligations arising
                           from internationally wrongful acts committed by the insurrectional
                           movement against third States during the armed struggle for independ-
                           ence. The new State should remain responsible for acts which took place
                           before its independence because there is a ‘structural’ and ‘organic’ con-
                           tinuity of the legal personality of what was then a rebel movement and
                           what has since successfully become a new independent State.
                              The somehow surprising result of the research outlined here is the
                           limited State practice which can be found in support of this principle.
                           Thus, State practice ultimately consists of one obiter dictum by an
                           internal United States compensation commission and one sentence
                           taken from a legal opinion discussing the likely consequences arising
                           from uncertain future events. Even the several French municipal court
                           decisions, which held that the new State of Algeria was (in principle)
                           responsible for the internationally wrongful acts committed by the
                           FLN before 1960, had limited concrete implications since Algeria was
                           in fact not a party to any of these proceedings.” (P. Dumberry, “New
                           State Responsibility for Internationally Wrongful Acts by an Insur-
                           rectional Movement”, European Journal of International Law, Vol. 17,
                           2006, p. 620.)

                        In assessing the legal force of the Articles on State Responsibility, it
                     should be born in mind that the International Law Commission recom-
                     mended to the General Assembly simply to ‘‘take note” of these Articles,
                     with the caveat that at a later stage the General Assembly should consider
                     the adoption of a Convention (Report of the International Law Commis-
                     sion 2001, United Nations doc. A/56/10, paras. 67, 72, 73). The General
                     Assembly followed this suggestion “without prejudice to the question of
                     their future adoption or other appropriate action”. It took this decision
                     without a vote, in the Sixth Committee, as well as in the Plenary.
                        Consequently, the Articles on the Responsibility of States are, by their
                     nature, closest to the doctrinary codification by a prestigious body of
                     international lawyers such as the International Law Commission. They
                     have no binding force by themselves, but they can possess it indirectly via
                     customary law to the extent to which they express it.

                         General Assembly resolution 59/35 (2004) entrusted the United Nations
                     Secretariat with the task of producing a compilation of express references
                     to the Articles on Responsibility of States for Internationally Wrongful
                     Acts and their commentaries in international judicial practice (see
                     General Assembly resolution 56/83 (2001) and General Assembly resolu-
                     tion 59/35 (2004)). It is an extremely important task which should
                      demonstrate the reaction of international courts and tribunals in terms of
                      its perception of the Articles as expressing positive law or not.

                     497

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                     497 	     application of genocide convention (sep. op. kreća)

                        Even more useful in this respect is perhaps the study prepared by the
                     British Institute of International and Comparative Law, which is consid-
                     erably more extensive in its scope ratione materiae. It comprises not only
                     international judicial practice, but
                           “it includes references to the Articles made in the separate or dissent-
                           ing opinions of judges of both the International Court of Justice and
                           other bodies . . . it aims to provide a greater amount of context to
                           instances of express reference . . . it aims to provide some comment
                           upon, and where appropriate, criticism of, the way in which the Arti-
                           cles have been applied in specific instances . . . it includes the most
                           important instances of reliance on the Articles by domestic courts.”
                           (Simon Olleson, The Impact of ILC’s Articles on Responsibility of
                           States for Internationally Wrongful Acts, Preliminary Draft, British
                           Institute of International and Comparative Law, 2003, p. iv.)
                         Moreover, the study “aims to provide a survey not only of express ref-
                      erence to the Articles, but also to the most important judicial pronounce-
                      ments (in particular those of the International Court of Justice), which,
                      although made without express reference to the Articles, are relevant to
                      matters falling within their subject-matter and which are therefore rele-
                      vant to an assessment of the impact of the Articles since the adoption”
                      (ibid.). (See also “Responsibility of States ; Compilation of Decisions
                     of International Courts, Tribunals and other Bodies”, Report of the
                     Secretary-General, United Nations doc. A/62/62 and Add. 1 ; D. Caron,
                      “The ILC Articles on State Responsibility : The Paradoxical Relation-
                     ship between Form and Authority”, American Journal of International
                     Law, Vol. 96, 2002, pp. 857, 863‑866, 857).
                         The conclusion of the study is that, contrary to the largest number of
                      the Articles on which the jurisprudence of courts, international and
                      national’ and the practice of States, strongly relies, in respect of Arti-
                      cles 10 as a whole “[t]here appears to have been no international judicial
                     reference to Article 10” (ibid., p. 95) nor any other instances referring to
                      Article 10 (ibid.)

                             6. Applicable Substantive Law In Casu in the Light of Rules
                                            on Interpretation of Treaties
                        68. Even if, arguendo, succession to responsibility is supposed to be a
                     part of general international law, this would not automatically mean that
                     it is a part of the applicable law in casu.

                        In order to be considered as such, rules on succession to responsibility
                     must be, pursuant to Article 31 (3) (c) of the Vienna Convention on the
                     Law of Treaties, “relevant rules of international law applicable in the
                     relations between the parties”.
                        69. Article IX of the Genocide Convention is a special treaty‑oriented
                     compromissory clause producing a “presumption of confinement”

                     498

7 CIJ1077.indb 992                                                                                18/04/16 08:54

                     498 	   application of genocide convention (sep. op. kreća)

                     (W. M. Reisman, “The Other Shoe Falls : The Future of Article 36 (1)
                     Jurisdiction in the Light of Nicaragua”, American Journal of International
                     Law, Vol. 81, 1987, p. 170) in the sense that, as a jurisdictional title, it
                     determines substantive law to be applied (positive aspect) and excludes, in
                     principle, as applicable substantive law, other than that determined by it
                     (negative aspect).
                        It can be said that this type of clause determines the principal or pri‑
                     mary rules of the treaty to which the compromissory clause is attached
                     (L. Bartels, “Jurisdiction and Applicable Law Clauses : Where Does a
                     Tribunal Find the Principal Norms Applicable to the Case before It ?” in
                     Y. Shany and T. Broude (eds.), Multi‑Sourced Equivalent Norms in Inter‑
                     national Law, 2011, pp. 117‑120 ; M. Papadaki, “Compromissory Clauses
                     as the Gatekeepers of the Law to Be ‘Used’ in the ICJ and PCIJ”, Journal
                     of International Dispute Settlement, Vol. 5, 2014, pp. 573 et passim) which
                     the Court applies ad casum. Its effects naturally derive from the consen-
                     sual and limited jurisdiction of the Court.

                        70. The consensual and limited jurisdiction of the Court cannot but
                     reflect upon the substantive law which the Court applies. This fact
                     expresses the essential difference between international courts and domes-
                     tic courts, the latter which, representing the State imperium in the judicial
                     sphere, apply the formal sources of law ex lege, independently of the will
                     of the parties. The power of the parties to limit applicable substantive
                     rules, being a part of the Statute of the Court, possesses the constitutional
                     character in the law governing the Court’s judicial activity. The strong
                     form of the exercise of this power is the provision of Article 38, para-
                     graph 2, of the Statute of the Court, on the basis of which the parties can,
                     on the basis of agreement, give the power to the Court to decide a case
                     ex aequo et bono. Narrower by scope and, implicitly, by form, are juris-
                     dictional titles granted in instruments such as compromissory clauses or
                     special agreements.
                        71. The special treaty-oriented compromissory clauses do not exclude
                     per se the application of the legal rules contained in sources mentioned in
                     Article 38 of the Statute of the Court. Such exclusion would be incompat-
                     ible with the judicial function of the Court as a court of law which adopts
                     decisions in accordance with international law. Moreover, such effects are
                     logically and legally impossible, having in mind that the Court, by apply-
                     ing the law referred to in a compromissory clause, acts, in fact, in accor-
                     dance with the provision of paragraph 1 (a) of Article 38 of the Statute.
                        The effects of treaty-oriented compromissory clauses are not designed
                     in terms of exclusion/inclusion dichotomy, but in terms of determining
                     priority of the rules from various sources which concern or may concern
                     the subject-matter of the dispute and of the function of the rules of inter-
                     national law other than the rules embodied in the treaty to which a com-
                     promissory clause is attached.
                        In this sense, in contrast to the principal or primary rules representing
                     applicable substantive law in casu, there are incidental norms (L. Bartels,

                     499

7 CIJ1077.indb 994                                                                                18/04/16 08:54

                     499 	     application of genocide convention (sep. op. kreća)

                     op. cit., p. 117) which comprise metanorms, constructive and conflicting
                     norms (M. Papadaki, op. cit., pp. 580‑592). Metanorms imply “rules that
                     govern the validity and interpretation of the rules of the treaty”, whereas
                     constructive norms constitute “the logical presuppositions and the neces-
                     sary logical consequences” of the principal or primary rules (D. Anzilotti,
                     Cours de droit international, trans. G. C. Gidel, 1929, pp. 106‑107, as trans-
                     lated into English by M. Papadaki, op. cit.). Conflicting norms, for their
                     part, concern “conflicting norm extraneous to the compromissory clause–
                     containing treaty” whose application is a “result of the application of the
                     metanorms of conflict resolution” like lex specialis or lex posterior whose
                     function is, generally speaking, to determine “the interpretation, validity
                     and applicability of any given principal norms” (L. Bartels, op. cit., p. 119).
                        Consequently, whereas the principal norms of substantive law are
                     linked with the subject‑matter of the dispute, possessing specific norma-
                     tive content relevant to the adjudicative process, incidental norms have
                     structural‑functional significance which enables a proper interpretation
                     and application of the principal norms.
                        72. The dichotomy of the principal/incidental norms reconciles two,
                     prima facie, opposing premises — consensual and limited jurisdiction of
                     the Court and the nature of the judicial function of the Court as an organ
                     of international law. In the optic of this dichotomy, it seems clear that the
                     substantive law referred to by the compromissory clause is not a self‑con-
                     tained regime, but a relevant part of international law as a whole operat-
                     ing, together with other relevant parts of international law, on the basis
                     of a proper distribution of functions. Moreover, the normative integrity
                     and consistency of international law is safeguarded precisely by the oper-
                     ation of metanorms relating to the validity of legal acts.

                        73. The part of jurisprudence of the Court based on special, treaty-
                     oriented compromissory clauses, generally follows the theoretical division
                     of primary and incidental norms, and their role in the process of determi-
                     nation.
                        A good illustration is the 2007 Judgment in the Bosnian Genocide case
                     which, in respect of this particular matter, is virtually identical to the case
                     at hand.
                        As regards applicable substantive law, the position of the Court is
                     clear. The Court, inter alia, stated :
                              “The jurisdiction of the Court in this case is based solely on Arti-
                           cle IX of the Convention. All the other grounds of jurisdiction invoked
                           by the Applicant were rejected in the 1996 Judgment on jurisdiction
                           (I.C.J. Reports 1996 (II), pp. 617‑621, paras. 35‑41). It follows that
                           the Court may rule only on the disputes between the Parties to which
                           that provision refers. The Parties disagree on whether the Court
                           finally decided the scope and meaning of that provision in its
                           1996 Judgment and, if it did not, on the matters over which the Court

                     500

7 CIJ1077.indb 996                                                                                18/04/16 08:54

                     500 	     application of genocide convention (sep. op. kreća)

                           has jurisdiction under that provision. The Court rules on those two
                           matters in following sections of this Judgment. It has no power to rule
                           on alleged breaches of other obligations under international law, not
                           amounting to genocide, particularly those protecting human rights in
                           armed conflict. That is so even if the alleged breaches are of obliga-
                           tions under peremptory norms, or of obligations which protect essen-
                           tial humanitarian values, and which may be owed erga omnes.”
                           (Application of the Convention on the Prevention and Punishment of
                           the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Monte‑
                           negro) Judgment, I.C.J. Reports 2007 (I), p. 104, para. 147.)

                       In other words, the Court diagnosed applicable substantive law or the
                     principal norms in the Genocide Convention as indicated by Article IX of
                     the Convention, pointing out “the fundamental distinction between the
                     existence and binding force of obligations arising under international law
                     and the existence of a court or tribunal with jurisdiction to resolve disputes
                     about compliance with those obligations” (ibid., para. 148 ; emphasis
                     added).
                       The Court, then, continues to consider applicable law lato sensu finding
                     out that :
                             “The jurisdiction of the Court is founded on Article IX of the Con-
                           vention, and the disputes subject to that jurisdiction are those ‘relat-
                           ing to the interpretation, application or fulfilment’ of the Convention,
                           but it does not follow that the Convention stands alone.” (Ibid., p. 105,
                           para. 149 ; emphasis added.)
                     and concludes :
                              “In order to determine whether the Respondent breached its obli-
                           gation under the Convention, as claimed by the Applicant, and, if a
                           breach was committed, to determine its legal consequences, the Court
                           will have recourse not only to the Convention itself, but also to the
                           rules of general international law on treaty interpretation and on respon‑
                           sibility of States for internationally wrongful acts.” (Ibid. ; emphasis
                           added.)
                        74. It seems clear that “the rules of general international law on treaty
                     interpretation and on responsibility of States for internationally wrongful
                     acts”, as the rules which “stand” alongside the Genocide Convention,
                     fully correspond with metanorms and constructive norms, respectively, as
                     the forms of incidental or auxiliary norms (see paras. 69 and 71 above).

                        75. It appears clear that succession to responsibility is not a part of
                     primary substantive law contained in the Genocide Convention. Respon-
                     sibility of a State for the committed crime is a constructive norm in the

                     501

7 CIJ1077.indb 998                                                                                18/04/16 08:54

                      501 	    application of genocide convention (sep. op. kreća)

                      sense of “logical presuppositions and necessary logical consequences of
                      norms established” (D. Anzilotti and G. C. Gidel, Cours de droit interna‑
                      tional, 1929, pp. 106‑107, as translated into English by M. Papadaki,
                      op. cit.) by a treaty, in the case at hand the Convention on Genocide. Or,
                      more precisely, as a constructive norm, the rules of State responsibility
                      are “the logical presuppositions not of the primary rules per se, but of
                      their effectiveness” (M. Papadaki, op. cit., p. 586). The special position of
                      constructive norms is well‑established in the jurisprudence of the Court.
                      It is expressed in a general way in the dictum of the Court in the Chorzow
                      Factory case : “Reparation . . . is the indispensable complement of a fail-
                      ure to apply a convention and there is no necessity for this to be stated in
                      the Convention itself.” (Case concerning the Factory at Chorzow, Juris‑
                      diction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 13.)
                         Moreover, in the Genocide Convention “responsibility” is included in
                      the compromissory clause, which, due to the fact that responsibility is,
                      ex natura, the constructive norm, possesses thus only a declaratory effect.
                         76. Responsibility of a State is one thing and succession to responsibil-
                      ity is another. Suffice it to say that, whereas the rules on responsibility are
                      secondary rules, the rules on succession are a part of the corpus of primary
                      norms whose violation entails activation of the rules on responsibility.

                          77. As such, supposed rules of succession to responsibility are not “rel-
                       evant rules” of international law applicable in casu. “Relevant rules” in
                      terms of Article 31, paragraph 3 (c), of the Vienna Convention on the
                      Law of Treaties “can be taken as an indication that analogy to rules of
                      international law other than directly applicable to the subject‑matter of the
                      case were to be excluded” (H. J. Uibopuu, “Interpretation of Treaties in
                      the Light of International Law : Art. 31, para. 3 (c) of the Vienna Con-
                       vention on the Law of Treaties”, Yearbook of the Association of Attenders
                       and Alumni : Hague Academy of International Law, Vol. 40, 1970, p. 4 ;
                       emphasis added). “Relevant” means that the rules “concerns the
                      subject‑matter of the treaty term at issue” (M. E. Villiger, Commentary on
                       the 1969 Vienna Convention on the Law of Treaties, 2009, p. 433 ; empha-
                       sis added ; see also Certain Questions of Mutual Assistance in Criminal
                       Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 219,
                       para. 113).

                         78. In the circumstances surrounding the case, two relevant conclu-
                      sions can be drawn :
                       (i) that the alleged rules on succession to responsibility are not primary
                           substantive rules in the sense of the Genocide Convention ; and

                      (ii) that, having in mind that they are not a part of secondary rules, they
                           do not form a legal union with the rules on responsibility so that
                           in casu they do not constitute constructive norms.

                      502

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                      502 	     application of genocide convention (sep. op. kreća)

                         79. The only possible form of succession to responsibility in the cir-
                      cumstances surrounding the case, could be succession to the responsibil-
                      ity of SFRY ex consensu.
                         On 29 June 2001, Bosnia and Herzegovina, the Republic of Croatia,
                      the Republic of Macedonia, the Republic of Slovenia and the Federal
                      Republic of Yugoslavia, concluded in Vienna, under the auspices of the
                      International Conference on the former Yugoslavia, an Agreement on
                      succession issues.
                         The Parties have concluded the Agreement, as stated in the Preamble,
                      “being in sovereign equality the five successor States to the former Social-
                      ist Federal Republic of Yugoslavia”.
                         Article 1 of Annex F of the Agreement provides that “[a]ll rights and
                      interests which belonged to the SFRY and which are not otherwise cov-
                      ered by the Agreement . . . shall be shared among the successor States . . .”
                      The Article is interpreted as a provision “in favour of the transfer of the
                      right to reparation from the predecessor State to the successor States”.
                      (P. Dumberry, op. cit., p. 121, fn. 293 ; emphasis in original).
                         Article 2 of Annex F stipulates :
                               “All claims against the SFRY which are not otherwise covered by
                            this agreement shall be considered by the Standing Joint Committee
                            established under Article 4 of this agreement. The successor States
                            shall inform one another of all such claims against the SFRY.”
                         Sir Arthur Watts, special negotiator for succession issues, whose pro-
                      posal is actually incorporated into the text of the Agreement on succes-
                      sion issues, indicates that
                            “it was understood by all concerned (at least, if it wasn’t, it should
                            have been !) that Articles 1 and 2 of Annex F included within their
                            scope such items of international responsibility as might exists [sic],
                            whether involving outstanding claims by the SFRY against other
                            States (Art. 1) or outstanding claims by other States against the SFRY
                            (Art. 2)” (P. Dumberry, op. cit., p. 121, fn. 294, referring to a letter
                            from Sir Arthur Watts on file with the author).

                                      7. The Issue of the Indispensable Third Party
                         80. Even if, arguendo qua non, there exists a rule of general interna-
                      tional law and ipso iure succession to responsibility, it seems inapplicable
                      in the circumstances surrounding the case.
                         Succession to responsibility is not a simple movement of responsibility
                      from the predecessor State towards the successor State, an automatic
                      transfer of responsibility from old to new State(s).

                        It presupposes two relevant legal facts established in a proper judicial
                      action of the Court.

                      503

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                      503 	     application of genocide convention (sep. op. kreća)

                         Primo, that the alleged genocidal acts have been committed on the ter-
                      ritory of the Applicant ; and
                         Secundo, that such acts can be attributed to the SFRY according to
                      “criteria, standards and principles, including, in addition to common
                      sense, national and international rules” (YILC, 1989, Vol. II, pp. 51‑52).

                        Only upon establishing these legal facts can the “succession issue” be
                      brought in focus in terms of the transfer of established responsibility of
                      the SFRY for alleged genocidal acts to the FRY/Serbia. The issue of res-
                      ponsibility of the SFRY is, consequently, of the preliminary, antecedent
                      nature in relation to the alleged responsibility of the FRY/Serbia.

                         81. Therefore, the alleged responsibility of the SFRY represents the
                      very subject‑matter of the decision of the Court in the dispute between
                      Croatia and the FRY/Serbia. In that part, it appears that the Court does
                      not have jurisdiction because, as stated by the Court in Land, Island and
                      Maritime Frontier Dispute, expressing the well‑established, fundamental
                      rule as regards its jurisdiction, “continuance of proceedings in the absence
                      of a State whose [interests] would be ‘the very subject‑matter of the deci-
                      sion’” is not allowed (Land, Island and Maritime Frontier Dispute (El Sal‑
                      vador/Honduras), Application for Permission to Intervene, Judgment,
                      I.C.J. Reports 1990, pp. 115‑116, para. 55, referring to the case of Mon
                      etary Gold Removed from Rome in 1943 (Italy v. France ; United Kingdom
                      and United States of America), Preliminary Question, Judgment,
                      I.C.J. Reports 1954, p. 32).
                         The Court thus confirmed the so‑called Monetary Gold principle which
                      rests on the difference between the “legal interest” in a dispute and the
                      “subject‑matter” of a dispute or its part. The dictum of the Court is as
                      follows :
                               “To adjudicate upon [this objection] without . . . consent would run
                            counter to a well‑established principle of international law embodied
                            in the Court’s Statute, namely, that the Court can only exercise juris-
                            diction over a State with its consent.” (Ibid.)

                      The fact that in the present case, a third State’s legal interests would not
                      only be affected by a decision, but would form “the very subject‑matter of
                      the decision”, does not make it possible for the Court to be authorized by
                      Article 62 of the Statute to continue the proceedings even in the absence
                      of the third State concerned.
                        Nor can Article 59 of the Statute be invoked since
                            “the decision of the Court in a given case only binds the parties to it
                            and in respect of that particular case. This rule . . . rests on the assump-
                            tion that the Court is at least able to render a binding decision.
                            Where . . . the vital issue to be settled concerns the international
                            responsibility of a third State, the Court cannot, without the consent

                      504

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                      504 	     application of genocide convention (sep. op. kreća)

                            of that third State, give a decision on that issue binding upon any State,
                            either the third State, or any of the parties before it” (I.C.J. Reports
                            1954, p. 33).
                         82. Considering that the “indispensable third party” principle derives
                      from the fundamental principle of consent, the application of the princi-
                      ple in casu could be objected to by recalling the argument that the SFRY
                      has given its consent to the jurisdiction of the Court by ratifying the Con-
                      vention in 1948 without expressing reservation regarding Article IX of the
                      Convention.
                         Such an objection would, however, be deprived of sense. The SFRY
                      became extinct as a State in 1992 and, with the extinction of a State, all
                      its rights and obligations cease as its own rights and obligations.

                         83. Moreover, the indispensable third-party rule would relate to the
                       Republic of Macedonia up until 1 December 1991, the date of the procla-
                      mation of Macedonia as an independent State, and to Bosnia and
                      Herzegovina up until 29 February and 1 March 1992 — the dates of
                       the proclamation of Bosnia and Herzegovina as an independent State,
                       because they were parts of the SFRY prior to these dates.

                                              III. Substantive Law Issues
                                1. Relationship between the ICJ and the ICTY in respect
                                            of the Adjudication of Genocide
                          84. Following the filing of the Application against the FRY in the Bos‑
                      nian Genocide case, on the basis of Article IX of the Genocide Conven-
                      tion, the Court found itself on terra incognita. It had three possibilities at
                      its disposal at the time :
                        (i) to pronounce itself incompetent, which was, perhaps, a solution clos-
                            est to the letter of the Convention, although it contained a negative
                            connotation in terms of the Court’s judicial policy, implying that the
                            World Court renounces making its contribution to the settlement of
                            the disputes relating to the interpretation and application of the Con-
                            vention constituting a part of corpus juris cogentis ;
                       (ii) to pronounce itself competent to entertain the case, acting as a crimi-
                            nal court, some kind of a judicial counterpart to the French adminis-
                            trative court in a dispute of full jurisdiction (le contentieux de pleine
                            juridiction). Legal obstacles for the Court to act in such a way do not
                            exist. As a court of general jurisdiction it was in a position, like the
                            courts in the continental judicial system which does not know the
                            strict division into criminal and civil courts, to treat the issue of indi-
                            vidual criminal responsibility for genocide as a preliminary part of
                            the issue of the responsibility of a State for genocide. This possibility
                            is additionally strengthened, representing even, in the light of logic
                            and legal considerations, the most appropriate solution, in the frame

                      505

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                      505 	    application of genocide convention (sep. op. kreća)

                            of the dictum of the Court that a State, too, can commit genocide
                            (2007 Judgment, pp. 113‑114, paras. 166‑167) ; or,
                      (iii) to opt for a middle‑of‑the‑road position, limiting itself to the issue of
                            State responsibility, without entering, at least not directly, into the
                            area of individual criminal responsibility. Such position is essentially
                            based on the dichotomy of individual criminal responsibility for the
                            committed act of genocide/State responsibility, in terms of the gen-
                            eral rules of responsibility of a State for wrongful acts. The logic of
                            dichotomy in concreto implies, or may imply, the establishment of a
                            jurisprudential connection with the ICTY judgments. Judge Tomka,
                            in his separate opinion to the 2007 Judgment, outlined the rationale
                            of this connection in [these] terms :
                                 “The International Court of Justice has no jurisdiction over the
                              individual perpetrators of those serious atrocities. Article IX of
                              the Genocide Convention confers on the Court jurisdiction to
                              determine whether the Respondent complied with its obligations
                              under the Genocide Convention. In making this determination in
                              the present case, the Court was entitled to draw legal conse-
                              quences from the judgments of the ICTY, particularly those which
                              dealt with charges of genocide or any of the other acts proscribed
                              in Article III. Only if the acts of the persons involved in the com-
                              mission of such crimes were attributable to the Respondent could
                              its responsibility have been entailed.
                                 The activity of the Court has thus complemented the judicial
                              activity of the ICTY in fulfilling the Court’s role in the field of
                              State responsibility for genocide, over which the ICTY has no
                              jurisdiction. Hopefully, the activities of these two judicial institu-
                              tions of the United Nations, the Court remaining the principal
                              judicial organ of the Organization, contribute in their respective
                              fields to their common objective — the achievement of internatio-
                              nal justice — however imperfect it may be perceived.” (Ibid., sepa-
                              rate opinion of Judge Tomka, p. 351, para. 73.)

                         85. It appears that the Court opted for this third possibility and applied
                      it both in the Bosnian Genocide case and in the case at hand.

                        It seems that the reasons underlying the choice of the Court for the
                      third option are dual — positive and negative.
                        The main positive reasons could be the following :
                      — primo, the crime of genocide, due to its specific collective nature,
                          entails cumulatively the responsibility of individuals and that of the
                          State ;
                      — secundo, it respects both the competence of the ICTY and the limita-
                          tions on the judicial activity of the Court, which is, true, relatively
                          limited to dealing with international responsibility for genocide ;

                      506

7 CIJ1077.indb 1008                                                                                18/04/16 08:54

                      506 	    application of genocide convention (sep. op. kreća)

                      — tertio, enabling interconnecting international jurisdictions relating to
                        genocide for the purpose of “[u]nity of substantive law as a remedy
                        for jurisdictional fragmentation” (E. Cannizzaro, “Interconnecting
                        International Jurisdictions : A Contribution from the Genocide Deci-
                        sion of the ICJ”, European Journal of Legal Studies, Vol. 1, 2007) ;

                      — quarto, opening space for “integrating the mandate and methodolo-
                        gies of international courts” (D. Groome, “Adjudicating Genocide : Is
                        the International Court of Justice Capable of Judging State Criminal
                        Responsibility ?”, Fordham International Law Journal, Vol. 31, 2008,
                        p. 976).
                         The negative reasons relate to the capability of the Court, in practical
                      terms, to act as a criminal court and the avoidance of competing jurisdic-
                      tion with the fellow court — the ICTY.

                         Although the Court “can and does have much to say on matters of
                      criminal justice” (K. J. Keith, “The International Court of Justice and
                      Criminal Justice”, International and Comparative Law Quarterly, Vol. 59,
                      2010, p. 895), its proper judicial activity in genocide cases calls for institu-
                      tional and methodological accommodation, in particular as regards evi-
                      dential matters. It appears that the Court considered competing
                      jurisdiction with the ICTY undesirable, not only because of the problems
                      of principle regarding competing jurisdiction in the legal environment of
                      the international community which does not know the judicial system
                      stricto sensu, but also because of the fact that the ICTY was established
                      by the Security Council on the basis of Chapter VII of the Charter of the
                      United Nations.
                         86. In principle, “interconnection” with a specialized tribunal such as
                      the ICTY can be desirable and productive for the International Court of
                      Justice. However, it must not ignore the substantial differences between
                      the two bodies and the proper effects deriving from these differences.

                        The differences are many and range from those of a judicial nature and
                      concerning the adjudicative function to judicial reasoning.

                         86.1. The International Court of Justice is a “World Court”, estab-
                      lished in accordance with a general multilateral treaty as the principal
                      judicial organ of the United Nations.
                         Although a principal organ of the United Nations, co-existing with the
                      other principal organs of the world organization on the basis of Article 7,
                      paragraph 1, of the Charter, the International Court of Justice is primarily
                      the “principal judicial organ” (UN Charter, Art. 92), and “[t]he formula
                      ‘principal judicial organ’ stresses the independent status of the Court in
                      the sense that it is not subordinate or accountable to any external author-
                      ity in the exercise of its judicial functions” (S. Rosenne, The Law and Prac‑
                      tice of the International Court : 1920‑2005, 2006, 4th ed., Vol. I, p. 141).

                      507

7 CIJ1077.indb 1010                                                                                18/04/16 08:54

                      507 	    application of genocide convention (sep. op. kreća)

                         The ICTY, for its part, is a specialized, criminal tribunal established by
                      resolution 827 of the Security Council, whose competence is limited in all
                      relevant aspects — ratione materiae, ratione personae and ratione loci —
                      representing, basically, an “ad hoc measure” aiming to “contribute to the
                      restoration and maintenance of peace” (UN Security Council resolu-
                      tion 827, doc. S/RES/827, 25 May 1993, Preamble) or, promoting the idea
                      of selective justice versus universal justice as inherent in the very essence
                      of law and the judiciary. In the light of that fact, the ICTY has, actually,
                      been established as a subsidiary organ of the Security Council, which is
                      also reflected, inter alia, in its function according to Security Council res-
                      olution 827 (see para. 86.2 below). It raises the question of its legitimacy,
                      to which no proper legal answer has been provided to this day. The ICTY
                      itself, in the Tadić case, reacting to the argument of the defence that the
                      tribunal was “not established by law”, as required, inter alia, by the Inter-
                      national Covenant on Civil and Political Rights, pointed out that, in
                      terms of the principle of competence de la competence, it had the inherent
                      jurisdiction to determine its own jurisdiction (Tadić, IT‑94‑1, Appeals
                      Chamber, Decision on the Defence Motion for Interlocutory Appeal on
                      Jurisdiction, 2 October 1995, paras. 18‑19).
                         The position taken by the Appeals Chamber can hardly be considered
                      satisfactory, for at least two reasons.
                         Primo, the principle of competence de la competence is not an omni
                      potent principle capable of transforming illegitimacy into legitimacy, ille-
                      gality into legality or vice versa. It is simply a basic functional and
                      structural principle inherent in any adjudicatory body, whether a regular
                      court or any other body possessing adjudicatory powers. The principle is,
                      as pointed out by United States Commissioner Gore in the Betsey case,
                      “indispensably necessary to the discharge of any . . . duties” for any adju-
                      dicatory body (J. B. Moore (ed.), International Adjudications, Ancient and
                      Modern, History and Documents, Modern Series, Vol. IV, p. 183).

                         As such, the principle of competence de la competence, operating within
                      the particular judicial structure, is neutral as regards the legitimacy or
                      illegitimacy of the adjudicating body.
                         Secundo, even, if arguendo, the principle of competence de la compe‑
                      tence is capable of serving as a basis of legitimacy of the ICTY, the find-
                      ing of the Appeals Chamber in the Tadić case does not appear sufficient
                      in that regard in the light of the fundamental principle — nemo iudex in
                      causa sua. The proper forum for a proper assessment of legitimacy of the
                      ICTY is the ICJ which, however, avoided explicit pronouncement in that
                      regard (some other models of judicial review and of UN constitutional
                      interpretation are also possible, see J. Alvarez, “Nuremberg Revisited :
                      The Tadić Case”, European Journal of International Law, Vol. 7, 1996,
                      p. 250).
                         86.2. The differences as regards adjudicatory functions between the
                      ICJ and the ICTY are particularly evident in relation to international
                      peace and security.

                      508

7 CIJ1077.indb 1012                                                                                18/04/16 08:54

                      508 	     application of genocide convention (sep. op. kreća)

                         The activity of the ICTY is strongly linked with international peace
                      and security.
                         Security Council resolution 827, establishing the ICTY, proceeded
                      from the qualification that the situation in the territory of the former
                      Yugoslavia “constitute[d] a threat to international peace and security”
                      and that the establishment of the Tribunal “would contribute to the res-
                      toration and maintenance of peace” (UN Security Council resolution 827,
                      doc. S/RES/827, 25 May 1993, Preamble). The Appeals Chamber, in the
                      Tadić case, concluded that “the establishment of the International Tribu-
                      nal falls squarely within the powers of the Security Council under Arti‑
                      cle 41” (Tadić, IT‑94‑1, Appeals Chamber, Decision on the Defence
                      Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995,
                      para. 36 ; emphasis added) (as an aside, such a conclusion could be con-
                      troversial in light of the provision of Article 41 of the Charter, which
                      a limine enumerates the powers of the Security Council proving that mea-
                      sures “may include complete or partial interruption of economic relations
                      and of rail, sea, air, postal, telegraphic, radio, and other means of com-
                      munication, and the severance of diplomatic relations”). The conclusion
                      in Tadić has been substantiated in the Milošević case in which the Trial
                      Chamber found that the establishment of the International Tribunal “is,
                      in the context of the conflict in the country at that time, pre‑eminently a
                      measure to restore international peace and security” (Milošević, IT‑02‑54,
                      Trial Chamber, Decision on Preliminary Motions of 8 November 2001,
                      para. 7 ; emphasis added).

                         The instrumental nature of the ICTY is not a subjective perception of
                      the Tribunal itself, but derives from the act by which it has been estab-
                      lished. Resolution 827 provides, inter alia, that the establishment of the
                      Tribunal, “in the particular circumstances of the former Yugoslavia”, as
                      “an ad hoc measure by the Council” (UN Security Council resolution 827,
                      doc. S/RES/827, 25 May 1993, Preamble). Such perception of the nature
                      of the Tribunal is also reflected in the timing of the establishment of the
                      Tribunal by the Security Council. May 1993 was the apex of the conflict
                      in the former Yugoslavia, so that the establishment of the Tribunal was a
                      part of international peace operations backed by the authority and
                      enforcement power of the Security Council. Therefore, it can be said that

                            “the overall purpose of the tribunals [ICTY and ICTR] coincides with
                            other forms of humanitarian intervention with respect to humanitar-
                            ian concern for victims in conflict‑ridden areas. The ICTY’s relation-
                            ship with peacekeeping forces in Bosnia‑Herzegovina during the
                            Bosnian war indicates a critical juncture of judicial organs with mili-
                            tary forces.” (H. Shinoda, “Peace-Building by the Rule of Law : An
                            Examination of Intervention in the Form of International Tribunals”,
                            International Journal of Peace Studies, Vol. 7, 2002.)

                      509

7 CIJ1077.indb 1014                                                                                18/04/16 08:54

                      509 	     application of genocide convention (sep. op. kreća)

                         As such, the ICTY essentially represents a “non‑military form of inter-
                      vention by the international community” (International Journal of Peace
                      Studies, Vol. 7, 2002, p. 15).
                         Although there exists an indisputable nexus between law and peace, the
                      instrumental role of the adjudicatory body in the establishment of peace
                      hardly represents an inherent feature of judicial activity of the court of
                      law. At least of the International Court of Justice.
                         Restoration of peace is pre‑eminently a political matter achieved by
                      way of measures which are stricto sensu non‑legal or extra‑legal. The
                      notions of “peace” and “justice” do not necessarily coincide. More often
                      than not, peace is achieved by means of unjust solutions. Moreover, law
                      can even be an obstacle to the attainment of peace, as is shown by peace
                      treaties. If the rules of the law of treaties were to be respected as regards
                      peace treaties, the peace achieved through peace treaties could not be
                      legally established because, as a rule, it is based on superiority on the
                      battle‑field ; which is, in terms of the law of treaties, the essential lack of
                      consent (vice de consentement).
                         The international practice
                            “has developed two principal methods for settling international affairs
                            and for dealing with international disputes. One is purely political.
                            The other is legal. There are degrees of shading off between them, and
                            various processes for the introduction of different types of third‑party
                            settlement. Because of this fundamental difference between the two
                            approaches of settling international disputes, analogies from one to
                            the other are false.” (S. Rosenne, The Law and Practice of the Inter‑
                            national Court : 1920‑2005, 2006, 4th ed., pp. 4‑5.)

                          The role of the Court is manifested in its “bolstering of the structure of
                       peace . . . through its advisory opinions, [as well as through judgments]
                       through the confidence which it inspired, and through the encouragement
                       which it gave to the extension of the law of pacific settlement, rather than
                       through its disposition of particular disputes” (M. Hudson, International
                       Tribunals : Past and Future, 1944, p. 239).
                          86.3. It seems understandable that such a position of the Tribunal is
                       also reflected in its judicial reasoning. In the interpretation of relevant
                       legal rules, the Tribunal strongly, even decisively, relies on the respective
                       interpretation of the Security Council and that of the chief administrative
                       officer of the world Organization — the Secretary‑General of the United
                       Nations. By reasoning in this way, the Tribunal in fact conducts itself
                      loyally towards its founder. There can be no objection to that in the light
                       of the circumstances surrounding the establishment and adjudicatory
                       function of the ICTY, but the question posed is whether such an approach
                       fits within the standards of judicial reasoning of the Court.

                         86.3.1. In the Blaškić case, the Tribunal found the decisive argument
                      relating to “existing international humanitarian law” in the assertions of

                      510

7 CIJ1077.indb 1016                                                                                18/04/16 08:54

                      510 	     application of genocide convention (sep. op. kreća)

                      the Security Council and the Secretary‑General of the United Nations.
                      The Tribunal stated inter alia :
                              “It would therefore be wholly unfounded for the Tribunal to now
                            declare unconstitutional and invalid part of its jurisdiction which the
                            Security Council, with the Secretary‑General’s assent, has asserted to
                            be part of existing international humanitarian law.” (Blaškić,
                            IT‑95‑14, Trial Chamber, Decision on the defence motion to strike
                            portions of the amended indictment alleging “failure to punish” liability
                            of 4 April 1997, para. 8.)

                         86.3.2. The Tribunal found that in cases where there is no manifest
                      contradiction between the Statute of the ICTY and the Report of the Sec‑
                      retary‑General “the Secretary‑General’s Report ought to be taken to pro-
                      vide an authoritative interpretation of the Statute” (Tadić, IT‑94‑1,
                      Appeal Judgment, 15 July 1999, para. 295).
                         86.3.3. The Tribunal is inclined to attach decisive weight to interpreta-
                      tive declarations made by Security Council members :
                               “In addressing Article 3 the Appeals Chamber noted that where
                            interpretative declarations are made by Security Council members
                            and are not contested by other delegations ‘they can be regarded as
                            providing an authoritative interpretation’ of the relevant provisions
                            of the Statute. Importantly, several permanent members of the Secu-
                            rity Council commented that they interpret ‘when committed in
                            armed conflict’ in Article 5 of the Statute to mean ‘during a period of
                            armed conflict’. These statements were not challenged and can thus,
                            in line with the Appeals Chamber Decision, be considered authorita-
                            tive interpretations of this portion of Article 5.” (Tadić, IT‑94‑1, Trial
                            Judgment, 7 May 1997, para. 631.)

                      1.1. The need for a balanced and critical approach to the jurisprudence of
                            the ICTY
                        87. The presented reasons require a balanced and critical approach to
                      the jurisprudence of the ICTY as regards genocide. Balanced in the sense
                      of a clear distinction between factual and legal findings of the Tribunal.

                        1.1.1. Factual findings of the ICTY
                         88. The factual findings of the Tribunal are a proper point for the
                      establishment of interconnection between two international jurisdictions
                      which relate to genocide.

                      511

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                      511 	    application of genocide convention (sep. op. kreća)

                         The methodology and techniques of a specialized, criminal judicial
                      body constitute the basis of the high quality of factual findings of the
                      Tribunal. The Court took cognizance of this, having found in the Bosnian
                      Genocide case that it “should in principle accept as highly persuasive rel-
                      evant findings of fact made by the Tribunal at trial” (2007 Judgment,
                      p. 134, para. 223). The heavy reliance on factual findings of the Tribunal
                      is, moreover, based on a formal, and not a substantive, criterion. This
                      clearly derives from the pronouncement that “the Court cannot treat the
                      findings and determinations of the Trial Chamber as being on an equal
                      footing with those of the Appeals Chamber. In cases of disagreement, it
                      is bound to accord greater weight to what the Appeals Chamber Judg-
                      ment says” (Judgment, para. 471). In this sense, the position of the Tribu-
                      nal as regards claims made by the Prosecutor can also be mentioned. The
                      Court stated in a robust way that “as a general proposition the inclusion
                      of charges in an indictment cannot be given weight” (2007 Judgment,
                      p. 132, para. 217). The proposition has been mitigated in the present
                      Judgment by the qualification that “the fact that the ICTY Prosecutor
                      has never included a count of genocide in the indictments in cases relating
                      to Operation Storm does not automatically mean that Serbia’s counter-
                      claim must be dismissed” (Judgment, para. 461).

                         89. Reliance on ICTY factual findings must have precise limits. It can-
                      not be considered as a formal verification of factual findings of the Tribu-
                      nal nor as a simple rejection based on formal criteria.
                         Instead of a formal criterion, a substantive one must be applied with a
                      view to the proper assessment of the factual finding of the Tribunal in
                      accordance with the standards of judicial reasoning of the Court.

                         In addition to the general reasons which necessitate such an approach
                      in the case at hand, of relevance could also be an additional reason which
                      relates to the alleged connection between the institution of proceedings
                      before the Court by Croatia and the treatment of Croatian citizens before
                      the Tribunal, as claimed by Professor Zimmermann (CR 2014/14, p. 11).
                      This claim was ultimately left unanswered by Croatia, nor has it been
                      answered by the ICTY itself, despite it having been made publicly in the
                      Court’s Great Hall of Justice.
                        1.1.2. Legal findings of the ICTY
                         90. In contrast to factual findings of the ICTY, the treatment of its
                      legal findings which relate to genocide needs to be essentially different.
                      The Court should not allow itself to get into the position of a mere veri-
                      fier of legal findings of the Tribunal. For, it would thus seriously jeopar-
                      dize its judicial integrity and, even, the legality of its actions in the disputes
                      regarding the application of the Genocide Convention.

                      512

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                      512 	     application of genocide convention (sep. op. kreća)

                        A number of cogent considerations necessitate a critical approach to
                      the legal findings of the Tribunal.
                        90.1. In dealing with the disputes relating to genocide on the basis of
                      Article IX of the Genocide Convention, the Court is bound to apply only
                      the provisions of the Convention as the relevant substantive law. In that
                      regard, the Judgment states expressis verbis :
                            “since Article IX provides for jurisdiction only with regard to ‘the
                            interpretation, application or fulfilment of the Convention, includ-
                            ing . . . the responsibility of a State for genocide or for any of the
                            other acts enumerated in Article III’, the jurisdiction of the Court does
                            not extend to allegations of violations of the customary international
                            law on genocide. It is, of course, well established that the Convention
                            enshrines principles that also form part of customary international
                            law. Article I provides that ‘[t]he Contracting Parties confirm that
                            genocide, whether committed in time of peace or in time of war, is a
                            crime under international law’. The Court has also repeatedly stated
                            that the Convention embodies principles that are part of customary
                            international law. That was emphasized by the Court in its 1951 Advi-
                            sory Opinion . . .
                               That statement was reaffirmed by the Court in Application of the
                            Convention on the Prevention and Punishment of the Crime of Genocide
                            (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment,
                            I.C.J. Reports 2007 (I), pp. 110‑111, para. 161).” (Judgment, para. 87 ;
                            emphasis added.)
                         The position of the ICTY as regards applicable substantive law seems
                      different.
                         In its judgment in the Krstić case, which served as the basis for the
                      Court’s conclusion that genocide was committed in Srebrenica, the Trial
                      Chamber stated that it “must interpret Article 4 of the Statute taking into
                      account the state of customary international law at the time the events in
                      Srebrenica took place” (Krstić, IT‑98‑33, Trial Chamber, Judgment,
                      2 August 2001, para. 541 ; emphasis added).
                         The Trial Chamber referred to a variety of sources in order to arrive at
                      the definition of genocide that it applied :
                              “The Trial Chamber first referred to the codification work under-
                            taken by international bodies. The Convention on the Prevention and
                            Punishment of the Crime of Genocide . . . whose provisions Article 4
                            adopts verbatim, constitutes the main reference source in this respect.
                            Although the Convention was adopted during the same period that
                            the term ‘genocide’ itself was coined, the Convention has been viewed
                            as codifying a norm of international law long recognized and which
                            case law would soon elevate to the level of a peremptory norm of
                            general international law (jus cogens). The Trial Chamber has inter-
                            preted the Convention pursuant to the general rules of interpretation
                            of treaties laid down in Articles 31 and 32 of the Vienna Convention

                      513

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                      513 	     application of genocide convention (sep. op. kreća)

                            on the Law of Treaties. As a result, the Chamber took into account
                            the object and purpose of the Convention in addition to the ordinary
                            meaning of the terms in its provisions. As a supplementary means of
                            interpretation, the Trial Chamber also consulted the preparatory
                            work and the circumstances which gave rise to the Convention. Fur-
                            thermore, the Trial Chamber considered the international case law on
                            the crime of genocide, in particular, that developed by the ICTR. The
                            Report of the International Law Commission (ILC) on the Draft
                            Code of Crimes against Peace and Security of Mankind received par-
                            ticular attention. Although the report was completed in 1996, it is the
                            product of several years of reflection by the Commission whose pur-
                            pose was to codify international law, notably on genocide : it therefore
                            constitutes a particularly relevant source for interpretation of Arti-
                            cle 4. The work of other international committees, especially the
                            reports of the Sub‑Commission on Prevention of Discrimination and
                            Protection of Minorities of the UN Commission on Human Rights,
                            was also reviewed. Furthermore, the Chamber gave consideration to
                            the work done in producing the Rome Statute on the establishment
                            of an international criminal court, specifically, the finalized draft text
                            of the elements of crimes completed by the Preparatory Commission
                            for the International Criminal Court in July 2000. Although that doc-
                            ument post‑dates the acts involved here, it has proved helpful in
                            assessing the state of customary international law which the Chamber
                            itself derived from other sources. In this regard, it should be noted
                            that all the States attending the conference, whether signatories of the
                            Rome Statute or not, were eligible to be represented on the Prepara-
                            tory Commission. From this perspective, the document is a useful key
                            to the opinio juris of the States. Finally, the Trial Chamber also looked
                            for guidance in the legislation and practice of States, especially their
                            judicial interpretations and decisions.” (Krstić, IT-98-33, Trial Cham-
                            ber, Judgment, 2 August 2001, para. 541 ; footnotes omitted.)

                         90.2. It appears that the fact that Article 4 of the ICTY Statute ad ver‑
                      batim reproduces Articles II and III of the Genocide Convention does not
                      automatically mean that the law of genocide as contemplated by the
                      ICTY Statute is equivalent to the law of genocide established by the Con-
                      vention. Article 4 of the Statute is but a provision of the Statute, which is
                      itself a unilateral act of one of the political organs of the United Nations.
                      As such, the provision cannot change its nature simply by reproducing
                      the text of Articles II and III of the Convention, without any renvoi to the
                      Genocide Convention. Consequently, interpretation of Article 4 of the
                      Statute on the basis inter alia of the travaux preparatoires of the Conven-
                      tion, on which the ICTY amply draws, is essentially misleading. It reflects
                      the difference in judicial reasoning between the ICJ and the ICTY (see,
                      para. 86.3 above).

                      514

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                      514 	    application of genocide convention (sep. op. kreća)

                         90.2.1. The interpretation of relevant provisions of the Convention
                      can, however, be one thing and the application of these provisions quite
                      another. Thus, the interpretation provided in paragraphs 87 and 88 of the
                      Judgment appears to be in discrepancy with the positions of the Court in
                      the Bosnian Genocide case, which, as the first case alleging acts of geno-
                      cide dealt with by the International Court of Justice, represents some sort
                      of a judicial parameter in genocide cases before the Court.
                         In the Bosnian Genocide case, conclusio of the Court that genocide was
                      committed in Srebrenica was based on the ICTY judgment in the Krstić
                      case, (2007 Judgment, pp. 163‑166, paras. 292‑297) which was decided by
                      the ICTY on the basis of “customary international law at the time the
                      events in Srebrenica took place” (Krstić, IT‑98‑33, Trial Chamber, Judg-
                      ment, 2 August 2001, para. 541).
                         91. In connection with “customary law of genocide”, two legal ques-
                      tions are posed which, due to their specific weight, transcend the question
                      of customary law of genocide, affecting the very understanding of cus-
                      tom, as one of the main sources of international law, and the relationship
                      between the Genocide Convention and customary law emerging, or which
                      could merge, following the adoption of the Convention.
                         91.1. The ICTY perception of custom as a source of international law
                      is highly innovative, going well beyond the understanding of custom in
                      the jurisprudence of the ICJ.
                         According to the well settled jurisprudence of the ICJ, which follows
                      the provision of its Statute referring to “international custom, as evidence
                      of a general practice accepted as law” (Art. 38, para. 1 (b)), custom is
                      designed as a source based on two elements : general practice and opinio
                      iuri sive necessitatis. As it pointed out in the Nicaragua case : “[b]ound as
                      it is by Article 38 of its Statute . . . the Court may not disregard the essen‑
                      tial role played by general practice” (Military and Paramilitary Activities
                      in and against Nicaragua (Nicaragua v. United States of America), Merits,
                      Judgment, I.C.J. Reports 1986, pp. 97‑98, para. 184 ; emphasis added).

                         The jurisprudence of the ICTY generally moves precisely in the oppo-
                      site direction, giving the predominant role to opinio juris in the determina-
                      tion of custom (G. Mettraux, International Crimes and the ad hoc
                      Tribunals, 2005, p. 13, fn. 4) and, thus, showing a strong inclination
                      towards the single element conception of custom !
                         In doing so, it considers opinio juris in a manner far removed from its
                      determination by the Court. For, in order “to constitute the opinio
                      juris . . . two conditions must be fulfilled. Not only must the acts concerned
                      amount to a settled practice, but they must also be such, or be carried out
                      in such a way, as to be evidence of a belief that this practice is rendered
                      obligatory by the existence of a rule of law requiring it” (North Sea Conti‑
                      nental Shelf (Federal Republic of Germany/Denmark ; Federal Republic of

                      515

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                      515 	    application of genocide convention (sep. op. kreća)

                      Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 44, para. 77).
                      Opinio juris cannot be divorced from practice because “[t]he Court must
                      satisfy itself that the existence of the rule in the opinio juris of States is
                      confirmed by practice” (Military and Paramilitary Activities in and against
                      Nicaragua (Nicaragua v. United States of America), Merits, Judgment,
                      I.C.J. Reports 1986, p. 98, para. 184).
                         The ICTY has often satisfied itself with “extremely limited case law”
                      and State practice (A. Nollkaemper, “The Legitimacy of International
                      Law in the Case Law of the International Criminal Tribunal for the for-
                      mer Yugoslavia” in : T. A. J. A. Vandamme and J. H. Reestman (eds.),
                      Ambiguity in the Rule of Law : The Interface between National and Inter‑
                      national Legal Systems, 2001, p. 17).
                         A large part of law qualified by the ICTY as customary law is based on
                      decisions of municipal courts (A. Nollkaemper, “Decisions of National
                      Courts as Sources of International Law : An Analysis of the Practice of
                      the ICTY” in G. Boas and W. A. Schabas (eds.), International Criminal
                      Law Developments in the Case Law of the ICTY, 2003, p. 282) which are
                      of a limited scope in the jurisprudence of the Court (H. Thirlway, The
                      Law and Procedure of the International Court of Justice : Fifty Years of
                      Jurisprudence, Vol. I, 2013, p. 248). In the case concerning Certain Ger‑
                      man Interests in Polish Upper Silesia, the Permanent Court stated that
                      national judicial acts represent “facts which express the will and consti-
                      tute the activities of States” (Merits, Judgment No. 7, 1926, P.C.I.J.,
                      Series A, No. 7, p. 19).
                         91.2. Hidden under the surface of the general characteristic of the
                      ICTY’s approach to customary law, which is dubious per se, is incoher-
                      ence and subjectivism. It has been well noted that differently‑composed
                      Chambers of the ICTY have utilized different methods for identifying
                      and interpreting customary law, even in the same case, including simply
                      referring to previous ICTY decisions themselves as evidence of a custom-
                      ary rule (N. Arajärvi, The Changing Nature of Customary International
                      Law : Methods of Interpreting the Concept of Custom in International
                      Criminal Tribunals, 2014, p. 117). In addition, the ICTY has failed to con-
                      sistently and rigorously address the concepts of State practice and
                      opinio juris by, inter alia, failing to refer to evidence of either, referring
                      merely to the bulk existence of national legislation as evidencing custom
                      without addressing opinio juris or framing policy or “humanity” related
                      rationales as opinio juris (ibid., p. 118).

                        92. The establishment of customary law in the ICTY resembles in
                      many aspects a quasi‑customary law exercise based on deductive reason-
                      ing driven by meta‑legal and extra‑legal principles. As can be perceived
                      “many a Chamber of the ad hoc Tribunals have been too ready to brand
                      norms as customary, without giving any reason or citing any authority
                      for that conclusion” (G. Mettraux, International Crimes and the Ad Hoc
                      Tribunals, 2005, p. 15). This has resulted in judicial law‑making through
                      purposive, adventurous interpretation (M. Swart, “Judicial Law‑Making

                      516

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                      516 	    application of genocide convention (sep. op. kreća)

                      at the Ad Hoc Tribunals : The Creative Use of Sources of International
                      Law and ‘Adventurous Interpretation’”, Heidelberg Journal of Interna‑
                      tional Law, Vol. 70, 2010, pp. 463‑468, 475‑478), although, according to
                      the Secretary‑General, on the establishment of the ICTY, the judges of the
                      Tribunal could apply only those laws that were beyond doubt part of cus
                      tomary international law (UN Security Council, Report of the Secretary-
                      General Pursuant to Paragraph 2 of Security Council resolution 808 (1993),
                      United Nations doc. S/25704, 3 May 1993, para. 34). Being in substantial
                      conflict with custom, as perceived by the ICJ, the ICTY perception of
                      custom, applied in its jurisprudence, opens the way to a fragmentation of
                      international criminal law and, even, general international law (see
                      G. Mettraux, op. cit., p. 15 citing Arrest Warrant of 11 April 2000 (Dem‑
                      ocratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002,
                      p. 3).

                         93. It is customary law to which is usually attributed the dynamic
                      capacity in the development of treaty law, both as regards the scope of
                      the established obligation and as regards its content. The question of
                      modification of the substantive rules of the Convention in the form of
                      custom is, as a rule, a neglected question although it seems to be of
                      far‑reaching importance.
                         Is custom capable of modifying a rule which belongs to corpus juris
                      cogentis ?
                         Given the inherent characteristics of customary law, on the one hand,
                      and legal force of the rules of corpus juris cogentis, on the other, the
                      answer to this question is necessarily negative.
                         The other side of the flexibility of custom, as a positive characteristic
                      from the aspect of the creation of peremptory norms, is the fact that cus-
                      tomary rules, as a rule, come into existence slowly and painstakingly.
                      This fact, besides the vagueness and imprecision of custom, is a big hand-
                      icap in relation to an international treaty, in particular at a time of rapid
                      and all‑embracing changes in the overall set of relations regulated by
                      international law. In the words of Friedmann, “custom is too clumsy and
                      slow moving a criterion to accommodate the evolution of international
                      law in our time” (W. Friedmann, The Changing Structure of International
                      Law, 1964, p. 122).
                         Precisely because of this, the advantages of custom as a source of exist-
                      ing peremptory norms of general international law represent, at the same
                      time, and in certain cases, also a difficulty, if not an obstacle, to the for-
                      mulation of new peremptory norms or the modification of those already
                      in existence.
                         94. Namely, the very mechanism of the creation of an international
                      customary rule by way of permanent, continual repetition of certain
                      behaviour, coupled with the opinio juris, is certainly not in full harmony
                      with the status enjoyed by the peremptory norm of general international
                      law ; in particular in relation to consequences inherent in such a norm in
                      relation to contrary acts undertaken by a State or a group of States. The

                      517

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                      517 	    application of genocide convention (sep. op. kreća)

                      customary rule implies certain regularity as a characteristic of particular
                      forms of behaviour which constitute the being of the material element of
                      custom ; a regularity on the basis of which the subjects of international
                      law perceive this practice as an expression of the obligatory rule of con-
                      duct. On the other hand, such regularity should have overall scope, that
                      is, it must be included, directly or indirectly, in the practice of the over-
                      whelming majority of member countries of the international community.
                      In view of the fact that the custom came into being diffusely, general
                      practice is achieved through the accumulation of varied individual and
                      common behaviours and acts (see Special Rapporteur M. Wood, “Second
                      report on identification of customary international law”, International
                      Law Commission, doc. A/CN.4/672, 22 May 2014).

                         However, it follows from the character of a norm of jus cogens that all
                      acts which are contrary to it are null and void ab initio. In other words,
                      such practice does not possess legal validity ; therefore it cannot represent
                      a regular form of the coming into existence of a norm of jus cogens super‑
                      veniens in the matter which is already covered by the cogent régime.
                         95. The inherent incapability of custom to modify the existing rule of
                      jus cogens has been diagnosed in a subtle way by the International Law
                      Commission. In the commentary to Draft Article 50 (Article 53 of the
                      Vienna Convention on the Law of Treaties), the Commission, having found
                      that “it would be clearly wrong to regard even rules of jus cogens as immu-
                      table and incapable of modification . . .”, concludes that “a modification of
                      a rule of jus cogens would today most probably be effected through a general
                      multilateral treaty . . .” (United Nations Conference on the Law of Treaties,
                      “Draft Articles on the Law of Treaties with Commentaries, Adopted by the
                      International Law Commission at Its Eighteenth Session”, First and Second
                      Sessions, Vienna, 26 March‑24 May 1968 and 9 April‑22 May 1969, Official
                      Records, Documents of the Conference, p. 68, para. 4 ; emphasis added).
                         Only “instant custom” would possess the proper capacity for modifica-
                      tion of an existing jus cogens rule, a conception of custom that has not
                      become part of positive law.
                         96. The perception of customary law developed by the ICTY is highly
                      destructive as regards the normative integrity of international law. Being
                      essentially a subjective perception of customary law divorced from its deeply
                      rooted structure which derives from the Statute of the Court as part of the
                      international ordre public, actually a judicial claim of custom contradictory
                      not only per se but also in se, it generates diversity in the determination of
                      customary law, including the rules of jus cogens of a customary nature.
                         97. It can be qualified as the most serious challenge to the construction
                      of customary law in the recent history of international law. Reducing
                      “general practice” to isolated judgments of national courts or, even, to
                      statements in the United Nations Security Council and deriving opinio juris
                      from these acts, or, going even further, simply asserting that a certain rule
                      is of a customary nature, not only contradicts the positive‑legal concep-
                      tion of custom reflected in the jurisprudence of the Court, but also trivial-

                      518

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                      518 	    application of genocide convention (sep. op. kreća)

                      izes the will of the international community as a whole as the basis of
                      obligations in international law, in particular obligations of a customary
                      nature. In sum, the ICTY’s perception of customary law as a demonstra-
                      tion of judicial fundamentalism would seem to incarnate Lauterpacht’s
                      metaphor of custom as a metaphysical joke (H. Lauterpacht, “Sover-
                      eignty over Submarine Areas”, British Yearbook of International Law,
                      Vol. 27, 1950, p. 394).

                         The dangers of the ICTY’s perception of customary law can hardly be
                      overestimated. The effects of such a perception are not limited to the judi-
                      cial activity of the ICTY and other ad hoc bodies. For a number of rea-
                      sons, including, inter alia, the inclination to deductive reasoning based on
                      meta‑legal and, even, extra‑legal considerations, not even the Court is
                      immune to such perception.
                         98. Furthermore, the pronouncement of the Court that a customary
                      law of genocide existed before the adoption of the Genocide Convention is
                      unclear (see Judgment, paras. 87 and 88). The arguments on which relies
                      the conclusio of the Court are not excessively persuasive. The arguments of
                      the Court are basically : (i) that it is “well established that the Convention
                      enshrines principles that also form part of customary international law” ;
                      and (ii) that Article I provides that “the Contracting Parties confirm that
                      genocide . . . is a crime under international law” (Judgment, para. 87).
                         98.1. As far as the first argument is concerned, it is, in fact, a strong
                      assertion which lacks precision and proper evidence. In its 1951 Advisory
                      Opinion, the Court rightly found “denial of the right of existence of entire
                      human groups”, which is genus proximum of genocide, contrary “to moral
                      law and to the spirit and aims of the United Nations” (Reservations to the
                      Convention on the Prevention and Punishment of the Crime of Genocide,
                      Advisory Opinion, I.C.J. Reports 1951, p. 23 ; emphasis added). It appears
                      that, in the opinion of the Court, “the principles underlying the Conven-
                      tion are principles which are recognized by civilized nations . . .”, in
                      essence, “most elementary principles of morality” (ibid.).
                         Apart from the question as to whether there is equivalency between
                      legal principles stricto sensu and “moral law” or the “most elementary
                      principles of morality”, it appears that the latter are the guiding principles
                      for the creation of legal rules on genocide, rather than legal rules per se.
                      The term “customary law on genocide” necessarily implies only rules or
                      rules and principles. Principles, no matter how fundamental they can be,
                      cannot per se constitute any law whatsoever, including in respect of the
                      law on genocide. Or, at least, not operational law or law in force.

                         98.2. The second argument is based on the meaning of the word “con-
                      firm”. As it is only possible to confirm something that exists, the Geno-
                      cide Convention would express the already constituted law of genocide
                      or, in a technical sense, it would represent codification of customary law
                      of genocide.

                      519

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                      519 	    application of genocide convention (sep. op. kreća)

                        However, there may be a different interpretation. For, it seems that the
                      subject of “confirmation” is something else and not customary law of
                      genocide.
                        On 11 December 1946, the United Nations General Assembly adopted
                      resolution 96 (I) on the Crime of Genocide which, inter alia :
                               “Affirms that genocide is a crime under international law which the
                            civilized world condemns, and for the commission of which principals
                            and accomplices — whether private individuals, public officials or
                            statesmen, and whether the crime is committed on religious, racial,
                            political or any other grounds — are punishable” (emphasis added).

                         The Preamble of the Genocide Convention states, inter alia, that “the
                      Contracting Parties, having considered the declaration made by the Gen-
                      eral Assembly of the United Nations in its resolution 96 (I) dated
                      11 December 1946 that genocide is a crime under international law”
                      (emphasis added).
                         It could be said that the relation between resolution 96 (I) and the
                      Genocide Convention is the embryo of the two‑phase legislative activity
                      which tractu temporis turned into a model for the creation of general mul-
                      tilateral treaty regimes in United Nations practice (exempli causa, Gen-
                      eral Assembly resolution 1962 (XVIII), Declaration of Legal Principles
                      Governing the Activities of States in the Exploration and Use of Outer
                      Space, 13 December 1963 ; Treaty on Principles Governing the Activities
                      of States in the Exploration and Use of Outer Space, including the Moon
                      and Other Celestial Bodies 1967 ; General Assembly resolution 217 (III),
                      A Universal Declaration of Human Rights, 10 December 1948 ; Interna-
                      tional Covenant on Civil and Political Rights 1966 ; International Cove-
                      nant on Economic, Social and Cultural Rights 1966). In this model,
                      resolutions of the United Nations General Assembly, adopted unani-
                      mously or by the overwhelming majority, declare the general principles
                      relating to the particular subject, these principles become part of interna-
                      tional public policy, and are finally transformed into binding legal rules in
                      the form of general international treaty, thus constituting what has been
                      referred to by Judge Alvarez as “international legislation” (Reservations
                      to the Convention on the Prevention and Punishment of the Crime of
                      Genocide, Advisory Opinion, I.C.J. Reports 1951, dissenting opinion

                      of Judge Alvarez, p. 49).

                        99. If, arguendo, customary law of genocide existed before the adoption
                      of the Genocide Convention, it is unclear on what practice, in particular
                      general practice, it was based ? The Court did not indicate any evidence of
                      the corresponding practice before the adoption of the Convention.

                         Moreover, the question may be posed why the corresponding practice,
                      if it was constituted, was not respected by the Nuremberg and the Tokyo

                      520

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                      520 	     application of genocide convention (sep. op. kreća)

                      Tribunals which were established precisely at the time when that practice
                      must have been constituted ?
                         Does the thesis that customary law of genocide existed before the adop-
                      tion of the Convention suggest that the Nuremberg and the Tokyo Tribu-
                      nals were unaware of/it or did they, perhaps, intentionally ignore it ?

                      1.2. Compromising effects on the Court’s jurisprudence on genocide

                         100. Uncritical acceptance of the legal findings of the ICTY, essentially
                      its verification, could result in compromising the determination of the
                      relevant rules of the Genocide Convention by the Court.
                         There exists a reason of an objective nature which produces, or may
                      produce, a difference between the law of genocide embodied in the Geno-
                      cide Convention and the law of genocide applied by the ad hoc tribunals.

                         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 polit-
                      ical organs of the fact that it does not contain any renvoi to the Genocide
                      Convention, the provision cannot change its nature simply by reproduc-
                      ing the text of Article II of the Convention.
                         101. It is not surprising therefore that in the jurisprudence of the Court
                      as regards the law on genocide there exist a discrepancy between the
                      interpretation of the relevant provisions of the Convention expressing as
                      a rule the letter of the Convention, and its application based on in toto
                      acceptance of the ICTY’s decision, that goes in the other direction.

                         I shall give two examples that concern the crucial provisions of the
                      Convention.
                         102. The first example relates to the nature of the destruction of the
                      protected group.
                         The Court notes that, in the light of the travaux préparatoires, the
                      scope of the Convention is limited to the physical and biological destruc-
                      tion of the group (Judgment, para. 136). The finding is consistently imple-
                      mented in the Judgment as a whole.
                         Exempli causa the Court considers that,
                            “in the context of Article II, and in particular of its chapeau and in
                            light of the Convention’s object and purpose, the ordinary meaning
                            of ‘serious’ is that the bodily or mental harm referred to in subpara-
                            graph (b) of that Article must be such as to contribute to the physi-
                            cal or biological destruction of the group . . .” (ibid., para. 157, see
                            also paras. 160, 163).

                      521

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                      521 	     application of genocide convention (sep. op. kreća)

                         103. However, “destruction” as applied by ICTY in the Krstić and
                      Blagojević cases, is a destruction in social terms rather than in physical
                      and biological terms.
                         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 Srebren-
                      ica” (Krstić, IT‑98‑33, Trial Judgment, 2 August 2001, para. 595), since
                      “their spouses are unable to remarry and, consequently, to have new chil-
                      dren” (ibid., Appeal Judgment, 19 April 2004, para. 28). Such a conclu-
                      sion, reflects rather the idea of a social destruction, rather than a physical
                      or biological one.

                         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 caus-
                      ing death’” (Blagojević and Jokić, IT‑02‑60, Trial Judgment, 17 January
                      2005, para. 662), an interpretation which does not fit with the under-
                      standing of destruction in terms of the Genocide Convention. 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., the social existence of the group [and that] the
                            intent to destroy the group . . . extends beyond physical and biolog-
                            ical extermination . . . The text of the law does not therefore compel
                            the interpretation that the culprit’s intent must be to exterminate
                            physically at least a substantial number of members of the group.”
                            (Ibid., para. 664 ; emphasis and ellipses in original.)

                        Thus perceived, “the term ‘destruction’, in the genocide definition can
                      encompass the forcible transfer of population” (ibid., para. 665).

                         104. The finding contradicts the dictum of the Court that “deportation
                      or displacement of the members of a group, even effected by force, is not
                      necessarily equivalent to destruction of that group, nor is such destruc-
                      tion an automatic consequence of the displacement” (2007 Judgment,
                      para. 190).
                         Those findings of the ICTY served as a basis for the conclusio of the
                      Court that genocide was committed in Srebrenica (ibid., paras. 296‑297).

                        In addition, fortunately, the subjective character of destruction in a
                      sociological sense is clearly shown precisely by the case of Srebrenica.
                      One of the key arguments of the Tribunal in the Krstić case and the
                      Blagojević case was that “destruction of a sizeable number of military
                      aged men would inevitably result in the physical disappearance of the

                      522

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                      522 	    application of genocide convention (sep. op. kreća)

                      Bosnian Muslim population in Srebrenica” (Krstić, IT‑98‑33, Trial Judg-
                      ment, 2 August 2001, para. 595).
                         Life, however, proved the Tribunal’s prediction wrong. Following the
                      conclusion of the Dayton Agreement, the Muslim community in Srebren-
                      ica was reconstituted, so that today the number of the members of the
                      two communities — the Muslim and the Serbian — is equalized. This is
                      also evidenced by the fact that a representative of the Muslim community
                      was elected Mayor at the last elections.

                         105. The other example relates to the relevance of customary law on
                      genocide in disputes before the Court based on Article IX of the Geno-
                      cide Convention.
                         In the present Judgment, the Court devoted considerable attention to
                      the customary law on genocide and made proper conclusions in clear and
                      unequivocal terms.
                         The Court stated in strong words that
                           “[t]he fact that the jurisdiction of the Court in the present proceedings
                           can be founded only upon Article IX has important implications for
                           the scope of that jurisdiction. That Article provides for jurisdiction
                           only with regard to disputes relating to the interpretation, application
                           or fulfilment of the Genocide Convention, including disputes relating
                           to the responsibility of a State for genocide or for any of the other acts
                           enumerated in Article III of the Convention.” (Judgment, para. 85.)
                         The statement is supported by the following reasoning :
                           “any jurisdiction which the Court possesses is derived from Article IX
                           of the Genocide Convention and is therefore confined to obligations
                           arising under the Convention itself. Where a treaty states an obligation
                           which also exists under customary international law, the treaty obli-
                           gation and the customary law obligation remain separate and distinct
                           (Military and Paramilitary Activities in and against Nicaragua (Nica‑
                           ragua v. United States of America), Merits, Judgment, I.C.J. Reports
                           1986, p. 96, para. 179). Accordingly, unless a treaty discloses a differ-
                           ent intention, the fact that the treaty embodies a rule of customary
                           international law will not mean that the compromissory clause of the
                           treaty enables disputes regarding the customary law obligation to be
                           brought before the Court. In the case of Article IX of the Genocide
                           Convention no such intention is discernible. On the contrary, the text
                           is quite clear that the jurisdiction for which it provides is confined to
                           disputes regarding the interpretation, application or fulfilment of the
                           Convention, including disputes relating to the responsibility of a State
                           for genocide or other acts prohibited by the Convention. Article IX
                           does not afford a basis on which the Court can exercise jurisdiction
                           over a dispute concerning alleged violation of the customary interna-
                           tional law obligations regarding genocide.” (Judgment, para. 88.)

                      523

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                      523 	     application of genocide convention (sep. op. kreća)

                         It should be noted that the position of the Court in that regard was
                      couched in a similar, although more general, way, in the Bosnian Geno‑
                      cide case.
                         The Court stated that : “[t]he jurisdiction of the Court in this case is
                      based solely on Article IX of the Convention” (2007 Judgment, p. 104,
                      para. 147).
                         True, the Court continued :
                               “The jurisdiction of the Court is founded on Article IX of the Con-
                            vention, and the disputes subject to that jurisdiction are those ‘relat-
                            ing to the interpretation, application or fulfilment’ of the Convention,
                            but it does not follow that the Convention stands alone. In order to
                            determine whether the Respondent breached its obligation under the
                            Convention, as claimed by the Applicant, and, if a breach was com-
                            mitted, to determine its legal consequences, the Court will have
                            recourse not only to the Convention itself, but also to the rules of
                            general international law on treaty interpretation and on responsibil-
                            ity of States for internationally wrongful acts.” (Ibid., p. 105,
                            para. 149.)
                         However, it seems clear that the rules of general international law on
                      treaty interpretation, for its object in concreto, can have only the Geno-
                      cide Convention itself. These rules, as rules of interpretation of the Con-
                      vention, cannot introduce through the back door customary law on
                      genocide as applicable substantive law. As far as the rules on the respon-
                      sibility of States for internationally wrongful acts, things seem to be
                      equally clear. For, being essentially the secondary rules, the rules on the
                      responsibility of States are “incapable” of modifying the substance of the
                      primary rules contained within the Genocide Convention.

                         106. However, the ICTY’s Judgment in the Krstić case was based, as
                      the Tribunal stated expressis verbis, on “customary international law at
                      the time the events in Srebrenica took place” (Krstić, IT‑98‑33, Trial
                      Chamber, Judgment, 2 August 2001, para. 541).
                         It appears that the Court, having found that it “sees no reason to dis-
                      agree with the concordant findings of the Trial Chamber and the Appeals
                      Chamber” (2007 Judgment, p. 166, para. 296) in the Krstić and the
                      Blagojević cases, has, in light of its pronouncement in paragraphs 87 and
                      88 of the Judgment, exceeded its jurisdiction, since Article IX confers
                      jurisdiction only with respect to the “interpretation, application or fulfil-
                      ment of the Convention . . . [and] the jurisdiction of the Court does not
                      extend to allegations of violation of the customary international law on
                      genocide” (Judgment, para. 87 ; emphasis added) so that “Article IX does
                      not afford a basis on which the Court can exercise jurisdiction over a dis‑
                      pute concerning alleged violation of the customary international law obliga‑
                      tions regarding genocide” (ibid., para. 88 ; emphasis added).

                      524

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                      524 	     application of genocide convention (sep. op. kreća)

                                        2. Was Genocide Committed in Croatia ?
                        107. The essence of the crime of genocide lies in destruction, in whole
                      or in part, of a national, ethnical, racial or religious group as such.
                        108. A genocidal act can exist only under conditions defined by the
                      body of law established by the Convention. Acts enumerated in Article II,
                      in subparagraphs (a) to (e), are not genocidal acts in themselves, but
                      only the physical or material expression of specific, genocidal intent. In
                      the absence of a direct nexus with genocidal intent, acts enumerated in
                      Article II of the Convention are simply punishable acts falling within the
                      purview of other crimes, exempli causa war crimes or crimes against
                      humanity.
                        109. 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. (Official Records of the General Assembly, Third Session, Part I,
                      Sixth Committee, 69th meeting.)

                         110. 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 sepa-
                      rate, the four elements make up a legal whole characterizing in their
                      cumulative effect, genocidal intent as the subjective element of the crime
                      of genocide. The absence of any of them disqualifies the intent from being
                      genocidal in nature. As a legal unity, these elements, taken in corpore,
                      demonstrate that genocidal intent is not merely something added to phys-
                      ical acts capable of destroying a group of people. It is an integral, perme-
                      ating quality of these acts taken individually, a quality that transforms
                      them from simple punishable acts into genocidal acts. In other words,
                      such intent is a qualitative feature of genocide distinguishing it from all
                      other crimes, indeed its constituent element stricto sensu.

                        The ICTR followed the same pattern of reasoning as that described
                      above.
                        In the Kanyarukiga case, the Trial Chamber stated, inter alia, that

                            “[t]o support a conviction for genocide, the bodily or mental harm
                            inflicted on members of a protected group must be of such a serious
                            nature as to threaten the destruction of the group in whole or in part”
                            (Kanyarukiga, ICTR‑02‑78-T, Trial Judgment, 1 November 2010,
                            p. 158, para. 637 ; see also Ndahimana, ICTR‑01‑68-T, Trial Judg-
                            ment, 30 December 2011, p. 173, para. 805).

                      525

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                      525 	     application of genocide convention (sep. op. kreća)

                         111. In the case at hand, so called quantitative criteria in terms of the
                      sheer size of the group and its homogenous numerical composition seems
                      applicable, since no Party adduced evidence suggesting application of the
                      qualitative criteria contemplating the destruction of the elite of the leader-
                      ship of the group.
                         As a rule, the quantitative criteria is presented in the form of a “sub-
                      stantial” part which means “a large majority of the group in question”
                      (Jelisić, IT‑95‑10, Trial Judgment, 14 December 1999, p. 26, para. 82).
                      The ICTY emphasizes that :
                              “The numeric size of the targeted part of the group is the necessary
                            and important starting-point. The number of individuals targeted
                            should be evaluated not only in absolute terms, but also in relation
                            to the overall size of the entire group.” (Krstić, IT‑98‑33-A, Appeal
                            Judgment, 19 April 2004, para. 12 ; see also, Brđanin, IT‑99‑36-T,
                            Trial Judgment, 1 September 2004, para. 702 ; Tolomir, IT‑05‑88/2-T,
                            Trial Judgment, 12 December 2012, para. 749 ; Blagojević and Jokić,
                            IT‑02‑60-T, Trial Judgment, 17 January 2005, para. 668.)
                         112. Croatia claims that there were over 12,500 victims killed
                      (CR 2014/6, p. 45, para. 13). It should be noted that evidence concerning
                      ethnic structure of victims as well as numbers of victims killed in the
                      capacity of members of military units in military operations is lacking.
                      Having in mind the object of destruction that characterizes the crime of
                      genocide, its specific collective character, such evidence would be of cru-
                      cial importance. The genocide is directed against a number of individuals
                      as a group or at them in their collective capacity not ad personam as such.

                         The International Law Commission stated 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 . . .
                            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.” (Official Records of the
                            General Assembly, Fifty‑First Session, Supplement No. 10, United
                            Nations doc. A/51/10/1556, p. 88.)
                        112.1. Even if, arguendo qua non, all the victims concerned were killed
                      because of the membership in the Croat national or ethnic group, the
                      number of 12,500 victims could hardly represent a “substantial part” of
                      the Croat national and ethnic group. In the relevant period, according to
                      the data from the census in Croatia in 1991, there 3,736,356 persons of
                      Croatian nationality (http://bs.wikipedia.org/wiki/Popis_stanovni%C5%
                      A1tva_u_Hrvatskoj_1991).

                        112.2. Of relevance as regards the element of dolus specialis is the fact
                      that the Chief of Staff of the First Military Region, operating in Vukovar

                      526

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                      526 	     application of genocide convention (sep. op. kreća)

                      and, generally, Eastern Slavonia, was General Andrije Silić, a Croat (later
                      appointed as the Inspector-General of the armed forces, JNA) (http://
                      www.dnevno.hr/vijesti/hrvatska/79367‑popis‑generala‑jna‑iz‑hrvatske‑
                      samo‑sedam‑ih‑se‑pridruzilo‑hv‑u.html).
                        112.3. General Anton Tus, Croat, was Head of the Yugoslavian air
                      force during the battle for Vukovar. As The Croatian Weekly for Culture,
                      Science and Social Issues wrote he “just twenty days before the fall of
                      Vukovar has changed the way” and was promoted to the First Chief of
                      the General Staff of the Croatian armed forces (http://www.hrvatski‑fokus.
                      hr/index.php/hrvatska/3812‑anton‑tus‑sada‑popuje‑a‑samo‑20‑dana‑
                      prije‑pada‑vukovara‑odabrao‑je‑stranu).

                        It should be born in mind that in the Croatian armed formations were
                      between ten and twenty thousand Serbs (http://www.jutarnji.hr/davor‑
                      butkovic‑‑i‑srbi‑su‑branili‑hrvatsku/901195/).
                        113. Serbia, for its part, claims that :
                       (i) the overall number of Serbs victims is 6,381 (Counter‑Memorial,
                           Anns., Vol. V, Ann. 66, List of Serbs victims on the territory of Cro-
                           atia 1990‑1998 ; Statement of witness‑expert Savo Strbac (4.2.2.) ;
                           Updated list of Serb victims, publicly available on the website of
                           D.I.C. Veritas (http://www.veritas.org.rs/srpske‑zrtve‑rata‑i‑poraca‑
                           na‑podrucju‑hrvatske‑i‑bivse‑rsk‑1990‑1998‑godine/spisak‑nestalih/) ;

                      (ii) victims killed during and after “Operation Storm” : 1,719 (CR 2014/13,
                           p. 15, para. 16, (Obradović) referring to the Veritas publicly available
                           list of the victims of Operation Storm (http://www.veritas.org.rs/
                           wp‑content/uploads/2014/02/Oluja‑direktne‑zrtve‑rev2014.pdf).

                         According to the data from the census in Croatia in 1991, on its terri-
                      tory there lived 581,663 persons of the Serbian national and ethnic group.
                      It appears that the number of individuals killed in relation to the actual
                      size of the Serbian national and ethnic group in Croatia, does not satisfy
                      the “substantial part” standard.

                        As regards “Operation Storm” it seems to be rather “ethnic cleansing”
                      than genocide in terms of the Genocide Convention.
                        As stated by the Court in the Bosnian Genocide case :

                              “Neither the intent, as a matter of policy, to render an area ‘ethni-
                            cally homogenous’, nor the operations that may be carried out
                            to implement such policy, can as such be designated as genocide :
                            the intent that characterizes genocide is ‘to destroy, in whole or
                            in part’ a particular group, and deportation or displacement of the
                            members of a group, even if effected by force, is not necessarily
                            equivalent to destruction of that group, nor is such destruction

                      527

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                      527 	     application of genocide convention (sep. op. kreća)

                            an automatic consequence of the displacement.” (2007 Judgment,
                            p. 123, para. 190.)
                         114. In conclusion, it seems indisputable that terrible atrocities and
                      crimes were committed by both sides in the tragic civil war in Croatia,
                      but, in the light of the relevant rules of the Genocide Convention, they
                      cannot be characterized as the crime of genocide. They rather fall within
                      the purview of war crimes or crimes against humanity as evidenced,
                      inter alia, by the jurisprudence of the ICTY.

                                           3. Issue of Incitement to Genocide
                         115. The matter on which I respectfully disagree concerns incitement
                      to genocide. In my opinion, the relationship of the regime of President
                      Tudjman to the Ustasha ideology and the legacy of the Nezavisna Država
                      Hrvatska (NDH), followed by numerous acts and omissions, justifies
                      finding that direct and implicit incitement to genocide was committed
                      (Akayesu, ICTR‑96‑4-T, Trial Judgment, 2 September 1998, para. 557).

                      3.1. Issue of incitement to genocide as inchoate crime

                      3.2. Incitement in terms of Article III (c) of the Convention
                        116. Under the Convention, direct and public incitement is defined as
                      a specific punishable act by Article III (c). With respect to such punish-
                      able act, three elements are of relevance : incitement, direct and public.
                        117. In common law systems, incitement is defined as encouraging or
                      persuading another to commit an offence (A. Ashworth, Principles of
                      Criminal Law, 1995, p. 462). Threats and other forms of pressure also
                      constitute a form of incitement (ibid.). Civil law systems regard public
                      and direct incitement in the following terms :

                               “Anyone, who whether through speeches, shouting or threats uttered
                            in public places or at public gatherings or through the sale or dissemi-
                            nation, offer for sale or display of written material, printed matter,
                            drawings, sketches, paintings, emblems, images or any other written or
                            spoken medium or image in public places or at public gatherings, or
                            through the public display of placards or posters, or through any other
                            means of audio‑visual communication, having directly provoked the
                            perpetrators(s) to commit a crime or misdemeanour, shall be punished
                            as an accomplice to such a crime or misdemeanour.” (French Penal
                            Code, Law No. 72‑546 of 1 July 1972 and Law No. 85‑1317 of
                            13 December 1985 (unofficial translation) cited in Akayesu, ICTR‑96‑
                            4-T, Trial Judgment, 2 September 1998, para. 555, fn. 124.)

                      528

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                      528 	     application of genocide convention (sep. op. kreća)

                        118. In the draft Genocide Convention formulated by the Ad hoc
                      Committee, public incitement is defined as incitement in the shape of
                            “‘public speeches or . . . the press . . . the radio, the cinema or other
                            ways of reaching the public’ while incitement was considered private
                            when ‘conducted through conversations, private meetings or mes-
                            sages’” (Commentary on Articles Adopted by the Committee, United
                            Nations doc. E/AC 25W.I, 27 April 1948, p. 2).

                         The International Law Commission characterized incitement as public
                      where it is directed at “a number of individuals in a public place or to
                      members of the general public at large by such means as the mass media,
                      for example radio or television” (ibid.).
                         Only public incitement has been interpreted by the international courts
                      as being an inchoate offence. Public incitement is dangerous because it
                      “leads to the creation of an atmosphere of hatred and xenophobia and
                      entails the exertion of influence on people’s minds” (W. K. Timmermann,
                      “Incitement in International Criminal Law”, International Review of the
                      Red Cross, Vol. 88, December 2006, p. 825).
                         In the jurisprudence of the ICTR, reference has repeatedly been made
                      to the creation of the particular state of mind in the audience that would
                      induce its members to commit genocidal acts.
                         119. Direct incitement seems to have been defined in the Akayesu case.
                      The tribunal noted that direct implies : “that the incitement assume a
                      direct form and specifically provoke another to engage in a criminal act,
                      and that more than mere vague and indirect suggestion goes to constitute
                      direct incitement” (Akayesu, ICTR‑96‑4-T, Trial Judgment, 2 September
                      1998, para. 557). And, further that
                            “the direct element of incitement should be viewed in the light of its
                            cultural and linguistic content . . . The Chamber further recalls that
                            incitement may be direct, and nonetheless implicit. Thus, at the time
                            the Convention on Genocide was being drafted, the Polish delegate
                            observed that it was sufficient to play skilfully on mob psychology by
                            casting suspicion on certain groups, by insinuating that they were
                            responsible for economic or other difficulties in order to create an
                            atmosphere favourable to the perpetration of the crime.” (Ibid.)
                        In determining whether certain statements are likely to incite genocide,
                      the context is extremely important. The ICTR stated, inter alia, that

                            “the meaning of a message can be intrinsically linked to the context
                            in which it [sic] is formulated. In the opinion of the Appeals Cham-
                            ber, the Trial Chamber was correct in concluding that it was appro-
                            priate to consider the potential impact in context — notably, how the
                            message would be understood by its intended audience — in deter-

                      529

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                      529 	    application of genocide convention (sep. op. kreća)

                            mining whether it constituted direct and public incitement to commit
                            genocide.” (Nahimana et al., ICTR‑99‑52-A, Appeal Judgment,
                            28 November 2007, para. 711.)
                         The principal consideration is the meaning of the word use in the spe-
                      cific context :
                              “It does not matter that the message may appear ambiguous to
                            another audience or in another context. On the other hand, if the
                            discourse is still ambiguous even when considered in its context, it
                            cannot be found beyond reasonable doubt to constitute direct and
                            public incitement to commit genocide.” (Ibid., para. 701.)

                         There is, of course, a difference where such statements are made by
                      officials : “these will be more likely in actual fact to promote genocide
                      than similar statements made by individuals who do not command the
                      same degree of authority . . . Furthermore, such statements may provide
                      evidence of an actual desire to promote genocide.” (T. Mendel, Study on
                      International Standards relating to Incitement to Genocide or Racial
                      Hatred, for the United Nations Special Adviser on the Prevention of
                      Genocide, April 2006, pp. 64‑65.)

                      3.3. Ustasha ideology as a genocidal one
                         120. Two special features characterize the Ustasha ideology in this
                      particular context. Primo, the teaching about the ethnic descent of the
                      Croats and, secundo, the perception of Croatia as a State. In the ideology
                      of the Ustasha movement these two features are organically, inseparably
                      linked.
                         121. In contrast to the teaching about the Slavic origin of the Croats,
                      advocated by progressive Croatian intellectuals and politicians at the
                      beginning of the nineteenth century (see e.g., A. Trumbić, Hrvatska
                      seljačka stranka (Croatian Peasant Party)), the proponents of the Ustasha
                      ideology maintained that the Croats were of Aryan descent.
                         As observed by the well‑known Croatian historian Nevenko Bartulin,
                      Professor at the Faculty of Philosophy in Split, in his doctoral disserta-
                      tion entitled “The ideology of nation and race : the Croatian Ustasha
                      regime and its policies toward minorities in the Independent State of Cro-
                      atia, 1941‑1945”, defended at the University of New South Wales (2006),
                      the Ustasha teaching about the Croatian ethnicity was decisively influ-
                      enced by I. von Suedland (1874‑1933) and by Professor Milan Sufflay
                      (1879‑1931).
                         Suedland, which is, in fact, the assumed name of the Croatian historian
                      and sociologist Ivo Pilar, taught that

                      530

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                      530 	     application of genocide convention (sep. op. kreća)

                            “the Croats had preserved the ‘Nordic‑Aryan’ heritage of their Slavic
                            ancestors far more than the Serbs, who had interbred, to a large
                            degree, with the Balkan‑Romanic Vlachs . . . The Serbs . . . had appar-
                            ently inherited their predominant physical features of black hair, dark
                            eyes and dark skin from the Vlachs and Pilar thought that these traits
                            were, in turn, probably the result of Vlach admixture with Gypsies.”
                            (N. Bartulin, op. cit., pp. 176‑177.)

                        Physiognomic differences between the Croats and the Serbs are accom-
                      panied, according to Pilar, by the essential differences in the social role of
                      these two peoples. He considers
                            “the Vlachs, as the core of the Serbian people, to be detriment to the
                            social harmony and progress of States in which they lived. They were
                            a race of destructive pastoral nomads and bandits . . . that the Serbs
                            were accomplished traders . . . In contrast, the Croats were charac-
                            terized by the values and virtues of their nobility, which was the only
                            hereditary aristocracy in the Balkans . . .” (Ibid., pp. 177‑178 ; empha-
                            sis added.)
                         Such a qualification is further extended to the present‑day Greeks
                      whom he sees as “the descendants of Slavs and Albanians” and, as such,
                      “worthless people of mixed bloods ‘who didn’t have the material and
                      moral strength’ — to inherit the mantle of successor to the Roman
                      Empire” (ibid., p. 178).
                         It seems that Sufflay was primarily concerned with vindicating chauvin-
                      ism, which necessarily derives from the teaching about the Croats as a
                      superior Aryan race. Croatian nationalism, according to him, is abso-
                      lutely positive because it possesses “higher ethical motives, namely,
                      defence of Western civilization” (M. Sufflay, Characteristics of the Croa‑
                      tian Nation and Croatia in the Light of World History and Politics : Twelve
                      Essays, reprint, Nova hrvatska povjesnica, Zagreb, 1999, pp. 40‑41). As
                      such, it is not a local nationalism, but rather a “loyal service to the White
                      West” (ibid.).
                         122. The teaching about the Aryan descent of Croats, their racial super
                      iority, necessarily bore upon the Ustasha concept of the Croatian State.
                      The leader of the Ustasha movement, Ante Pavelić, in the document enti-
                      tled “The Principles of the Ustasha Movement”, published in 1933, men-
                      tioned 17 principles which “became the dogma for Ustasha members . . .
                      and form the core around which the legal‑constitutional system (if one
                      could call it that) of the Independent State of Croatia would be based”
                      (N. Bartulin, op. cit., p. 164).
                         A certain number of these principles are of special relevance. The first
                      principle is that “the Croatian nation is a self‑contained ethnic unit, it is
                      a nation in its own right and from an ethnic perspective is not identical
                      with any other nation nor is it a part of, or a tribe of, any other nation”.
                      The seventh principle states that the Croats maintained their State

                      531

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                      531 	    application of genocide convention (sep. op. kreća)

                      throughout the centuries up until the end of the First World War and
                      that they therefore have the right to “restore their own Croatian State on
                      their whole ethnic and historic territory” with the right to use all methods
                      (principle 8).
                         Principle 11 says that “no one who is not by descent and blood a mem-
                      ber of the Croatian nation can decide on Croatian State and national
                      matters”. Principle 14, on the other hand, provides that an individual has
                      no specific rights as he/she only counts as a part of the whole, meaning
                      “nation and State” (see Victor Novak, Magnum crimen, 2011, pp. 723‑724).

                         The Croatian State, according to Pavelić, ought to be based on the
                      theory of historic statehood, while denying the right of peoples to
                      self‑determination. At the meeting of the HSP youth of September 1928
                      held in Zagreb, Pavelić explicitly pointed out that the Croats do not need
                      President Wilson’s right to self‑determination because “we have our his-
                      toric State right and according to that right we seek that Croatia becomes
                      free” (Jareb, Political Recollections and Work of Dr. Branimir Jelić, Cleve-
                      land, Mirko Samija, 1982, p. 251 ; N. Bartulin, op. cit., pp. 165‑166). The
                      theory of the historic State right, as the basis of independent Croatia,
                      gave rise to Ustasha‑oriented lawyers viewing the State as a notion which
                      consists of “the territory, the nation and State right” (for example, Pro-
                      fessor Fran Milobar, Jareb, op. cit., p. 253 ; N. Bartulin, op. cit., p. 156).

                          The meaning of the historical right title is that the Croats “had exclu-
                       sive rights to the territory that encompassed the NDH, despite the size-
                       able number of non‑Croats on this territory” (ibid., p. 275).
                          123. As far as internal organization is concerned, independent Croatia,
                       in the Ustasha ideological vision, ought to be founded on the “Füh-
                       rerprinzip”, because “all authorities in the NDH were answerable to the
                       ‘Poglavnik’, while he answered only to ‘history and his own conscience’”
                      (ibid., p. 279 ; Slaven Pavlić, “Tko je tko in NDH” (“Who’s Who in the
                      Independent State of Croatia”), Hrvatska 1941‑1945, Zagreb, Minerva,
                      1997, p. 477). The reception of the model of government of Nazi Ger-
                       many was explained as being due to the deficiencies of the democratic
                       principle which “almost ruined the world by abolishing the distinction
                       between good and evil, in other words, democracy was held responsible
                      for moral relativization” (D. Zanko, “Etička osnova ustaštva” (“The eth-
                      nic basis of the Ustasha ideology”), Ustaški godišnjak 1943 (Ustasha
                      Yearbook 1943), p. 187).
                          124. It seems clear that the Croatian State, based on the Ustasha ideo
                      logy, rested on the logic of genocide. It was a copied Nazi ideology
                      ratione loci limited to parts of the then Kingdom of Yugoslavia.

                        Only on the basis of a genocidal paradigm was it possible for the Usta-
                      sha ideology to create an ethnically clean State of superior Aryan people,
                      with the Serbs and the Jews who lived in the same space being regarded
                      as socially destructive and a “detriment to the social harmony and prog-

                      532

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                      532 	    application of genocide convention (sep. op. kreća)

                      ress of States in which they lived”. Without that paradigm, the creation of
                      an Ustasha Croatian State was simply not possible :
                              “The Ustasha genocide was underlined by two principal aims. One
                            was to establish a Croatian nation‑State for the first time in modern
                            history, and secondly, to simultaneously ‘remove the ethnic, racial
                            and religious minorities that the Ustashe considered both alien and a
                            threat to the organic unity of the Croatian nation’.” (N. Bartulin,
                            op. cit., p. 11.)
                      These two aims are not only organically linked, but, moreover, the reali-
                      zation of the first aim necessarily implies the removal of national groups
                      which do not fit in the matrix of the Aryan Croatian nation. If the
                      non‑Croatian ethnic and religious groups are “both alien and a threat to
                      the organic unity of the Croatian nation” why should they at all be pre-
                      served ? (in other words, the obliteration of such groups can be inferred
                      from the very essence of the Ustasha ideology). As far as the Serbs are
                      concerned, genocidal logic was explained. As academician Viktor Novak,
                      a leading Croatian historian after the Second World War noted, the main
                      Ustasha ideologist and No. 2 of the Independent State of Croatia,
                      Mile Budak, set out, at the big assembly in Gospić, the genocidal formula
                      in the following words : “We will kill one part of the Serbs, will dislocate
                      the other part and will convert the rest into Catholic religion and thus
                      have them assimilated into the Croats” (quoted by Viktor Novak,
                      Magnum Crimen, Gambit, Jagodina, 2011, pp. 786‑787).
                         The Ustasha ideology is, in its substance, a genocidal plan to destroy
                      the Serb national group in Croatia and parts of the territory of the King-
                      dom of Yugoslavia, which, in the Ustasha perception, constitute parts of
                      Greater Croatia.

                      3.4. The establishment of the NDH — the Ustasha ideology becomes State
                            policy
                         125. The Ustasha State, the so‑called Independent State of Croatia,
                      was formally proclaimed in Zagreb on 10 April 1941 in Pavelićs name
                      and by the “will of our ally” (i.e., Germany) comprised territories of his-
                      toric Croatia with Međumurje, Slavonia, Dalmatia, Bosnia and Herze-
                      govina and the big part of Vojvodina (Fikreta Jelić‑Butić, Ustaše i
                      Nezavisna Država Hrvatska 1941-1945 (Ustasha and the Independent State
                      of Croatia), Sveučilišna naklada Liber, Zagreb, 1977, p. 67).

                         126. Following the proclamation of the NDH a number of measures
                      were taken with a view to the realization of the Ustasha ideology in rela-
                      tion to Serbs, Jews and Roma. These measures can be divided into two
                      groups. One group of measures comprised legislative measures, whereas
                      the other group were institutional measures, meaning the creation of
                      structures for their implementation. These two kinds of interrelated mea-
                      sures were supposed to create a “clean Croatian State space” that was to

                      533

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                      533 	    application of genocide convention (sep. op. kreća)

                      enable the existence of a “clean Croatian nation”. The vital condition for
                      achieving this aim was the “extermination” primarily of Serbs and Jews
                      who were declared “the greatest enemies of the Croatian people”, conse-
                      quently “there is no place for them in Croatia” (Fikreta Jelić‑Butić,
                      op. cit., p. 158).
                        127. The establishment of concentration camps took place in two
                      phases.
                        In the first phase the so‑called “reception camps” were established, i.e.,
                      places of temporary stay of the arrested, mainly Serbs, from which they
                      were deported to concentration camps (ibid., p. 185). The arrested per-
                      sons, as formulated in the “Legal provision on the sending of objection-
                      able and dangerous persons to forcible stay in reception camps and
                      forced‑labour camps”, were “objectionable persons who were a threat to
                      the public order and security or persons which could endanger peace and
                      calm of the Croatian people or the achievements of the liberation struggle
                      of the Croatian Ustasha Movement” (Narodne novine, 26 November
                      1941).

                         The second phase was the setting up of concentration camps or death
                      camps. There were a considerable number of death camps in Ustasha
                      Croatia (Mirko Veršen, Ustasha Camps, Zagreb, 1966, pp. 29‑36). The
                      establishment of these camps took place soon after the proclamation of
                      the NDH and, in fact, they were the first concentration camps in Europe,
                      set up before the concentration camps in Nazi Germany.
                         128. The accurate number of killed persons in these camps has not been
                      established. The reason for this was by and large the lack of will on the part
                      of the authorities after the end of the Second World War to establish precisely
                      and to make known the number of perished people and thus avoid triggering
                      inter‑ethnic differences and frictions. The slogan “Brotherhood and Unity”
                      of “Yugoslav” peoples proclaimed and strictly adhered to by J. B. Tito, who
                      saw it as the condition of the survival of Yugoslavia — quite rightly as it
                      turned out — was not to be impaired in any way whatsoever.
                         However, it seems indisputable that several hundred thousands of peo-
                      ple were killed in Jasenovac. According to the data of the Croatian
                      Regional Commission for the establishment of crimes committed by the
                      occupiers and their helpers, it is reckoned that the number of victims
                      ranges between 500,000‑600,000 (Fikreta Jelić‑Butić, op. cit., p. 187).
                      Encyclopaedia Britannica, in the article entitled “Fascism”, states that the
                      Croatian fascists in the German puppet state of Croatia, “in a campaign
                      of genocide, killed about 250,000 Serbs in Croatia and 40,000 Jews”
                      (http://www.britannica.com/EBchecked/topic/202210/fascism/219386/
                      Sexism‑and‑misogyny).
                         A number of sources assert that 600,000 people, including Serbs (the
                      overwhelming majority), Jews and Roma were murdered at Jasenovac
                      (http://www.holocaustresearchproject.org/othercamps/jasenovac.html ;
                      Jasenovac : Proceedings of the First International Conference and Exhibit

                      534

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                      534 	     application of genocide convention (sep. op. kreća)

                      on the Jasenovac Concentration Camps, 29-31 October 1997, Kingsbor-
                      ough Community College of the City University of New York, Dallas
                      Publishing, p. 20 ; Robert Rozett and Shmuel Spector, Encyclopedia of
                      the Holocaust, p. 280 ; http://www.museumoffamilyhistory.com/ce/cc/
                      nf-camps-jasenovac-01.htm ; Padraic Kenney, The Burdens of Freedom:
                      Eastern Europe since 1989, p. 94 ; http://www.balkanstudies.org/blog/
                      holocaust-deniers-us-state-department ; David Birnbaum, Jews, Church
                      and Civilization, Vol. VI ; https://books.google.rs/books?id=SDW5owdrH
                      bIC&pg=PA165&lpg=PA165&dq=Jasenovac+600+000+murdered&sour
                      ce=bl&ots=3vliR5EeiO&sig=Bco48GL6ePjbfwpmFSn7k6eZb9g&hl=en
                      &sa=X&ei=Mo3VZbMLajhywOh5oGAAQ&ved=0CCIQ6AEwAjgU#v
                      =onepage&q=Jasenovac%20600%20000%20murdered&f=false ; http://www.
                      ag-friedensforschung.de/regionen/jugoslawien/jasenovac.html ; http:// www.
                      holocaustchronicle.org/staticpages/414.html).
                        On the occasion of the International Day of Holocaust Remembrance,
                      the Croatian Parliament held a meeting which included a programme
                      suited to the occasion on 27 January 2014. In addition, to a good number
                      of officials and public figures, the commemoration was also attended by
                      representatives of religious communities, as well as by the Croatian Presi-
                      dent Ivo Josipović and Prime Minister Zoran Milanović who, in addition
                      to the Speaker of Parliament, Josip Leko, also delivered a speech :
                              “In his speech, Prime Minister Zoran Milanović observed that this
                            should be an opportunity for political speeches rather than commem-
                            orative ones ‘in a low sense of the word’, because what happened
                            70 years ago is an everlasting story about the fight between good and
                            evil, between a moral individual and an immoral society. He reminded
                            those present of the fact that anti‑Semitism did not appear overnight ;
                            that everything that was said about the Jews before the Holocaust
                            could be considered as hatred speech.

                               He also recalled the fact that horrible things had happened in
                             roatia in 1941, not only to the Jews but also to the Serbs before
                            C
                            them.
                               Until April 1941 there were no mass executions in Europe on
                            account of different religious belief or racial origins. This situation
                            changed in April of that year following the establishment of the Inde-
                            pendent State of Croatia in which, within a few weeks, mass killings
                            of people of different religions and nationalities began. The mass exe-
                            cutions of Serbs started first and were soon followed by the killings
                            of Jews. It was only at the end of June 1941 that mass executions
                            started in East Europe, primarily the executions of Jews. That was
                            not yet the time of concentration camps. That was a time of mass
                            killings with firearms which, as it soon turned out, could not satisfy
                            the high technological standards of the executioners. We all know what
                            followed soon after.”

                      535

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                      535 	     application of genocide convention (sep. op. kreća)

                        In his speech, the Speaker of the Parliament of Croatia, Josip Leko,
                      pointed out that :
                               “One could say that Nazi brutalities began already in the first days
                            of Hitler’s dictatorship and continued twelve full years ; however, the
                            real proportions of that unprecedented, planned in detail, and system-
                            atically carried out policy of annihilation became visible only at the
                            end of the Second World War following the access of the Allied troops
                            to the ‘death factories’, the largest of which was the concentration
                            camp of Auschwitz‑Birkenau. One of these frightening pages of the
                            past, the darkest, most inhumane pages of the past, is the death camp
                            of Jasenovac created on the model of the notorious Nazi concentra-
                            tion camps.”

                      3.5. President Tudjman’s Croatia and the legacy of the NDH
                         129. In the construction of Croatia, the legacy of the NDH could not
                      be left aside because that legacy, as was repeatedly pointed out in unison
                      and almost ritually, is a part of the “thousand‑year‑old national indepen-
                      dence and the existence of the State of the Croatian people”. Moreover,
                      although by its emergence and nature, it was a puppet State, Pavelić’s
                      NDH was in effect the first Croatian State since the year 1102, when the
                      medieval Croatian State came under the rule of Hungary.

                         It appears that strong elements of the legacy of the NDH were not
                      alien to the Croatian State in the period 1990‑1995.
                         130. President Tudjman clearly determined his perception of the Croa-
                      tian State. His statements are of special importance because he was the
                      unquestionable political authority during his lifetime. He was regarded as
                      “the Messiah of the Croatian people”. Misha Glenny notes that Tudj-
                      man, at his inauguration as the President, was introduced with these
                      words : “On this day (Palm Sunday) Christ triumphant came to Jerusa-
                      lem. He was greeted as a messiah. Today our capital is the new Jerusalem.
                      Franjo Tudjman has come to his people.” (M. Glenny, The Fall of Yugo‑
                      slavia, 1992.)
                         For Tudjman, the Croatian State implies an ethnic State based on his-
                      torical right. In that regard, even genocide in history had some positive
                      consequences, such as
                            “[bringing] about ethnic homogenization of some peoples, leading to
                            more harmony in the national composition of the population and
                            State borders of individual countries, thus also having possible posi-
                            tive impact on developments in the future, in the sense of fewer rea-
                            sons of fresh violence and pretexts for the outbreak of new conflicts
                            and international friction” (F. Tudjman, Wastelands in Historical
                            Reality, Nakladni Zavod Matiće Hrvatska, Zagreb, p. 163).

                      536

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                      536 	     application of genocide convention (sep. op. kreća)

                        Hence, even Ustasha Croatia was “not only a quisling organization
                      and a fascist crime, but was also an expression of the Croatian nation’s
                      historic desire for an independent homeland” (Z. Silber and A. Little,
                      Yugoslavia : Death of a Nation, 1997, pp. 82‑87). The last American
                      Ambassador to the SFRY, Warren Zimmermann, portrayed Presi-
                      dent Tudjman’s relations with Serbs in the following way :

                               “Mike Einik and I raised with him or his aides every piece of infor-
                            mation that came to us about abuses of the civil rights of Serbs, in
                            hopes that his Government would crack down on the offences and
                            bring the offenders to book. With a few individual exceptions, he was
                            unresponsive. I urged him to visit Jasenovac, the notorious
                            World War II Croatian concentration camp where tens of thousands
                            of Serbs and other [victims] had perished, as Willy Brandt had gone
                            to Yad Vashem in Israel in an act of contrition for the Holocaust. He
                            refused . . .

                              But toward Croatia’s Serbian population he rejected any gesture
                            that smacked of reconciliation, co-operation, or healing . . .

                               Tudjman always seemed to me on the brink of becoming a slightly
                            ridiculous operetta figure. But this impression was contradicted by
                            the ruthlessness with which he pursued Croatian interests as he saw
                            them.” (W. Zimmermann, Origins of a Catastrophe : Yugoslavia and
                            Its Destroyers — America’s Last Ambassador Tells What Happened
                            and Why, 1996, pp. 76‑77.)
                         130.1. The meaning of President Tudjman’s policy did not go unno-
                      ticed. The American expert in geopolitics, Samuel Huntington, also
                      warned that the Ustasha acts of violence were the key factor which
                      prompted the reaction of the Serbian minority and thus predetermined
                      the course of events during the disintegration of the SFRY. “The conflicts
                      between Serbs and Croats, for example, cannot be attributed to demogra-
                      phy, but only partly to history, because these nations lived relatively
                      peacefully, one beside the other, until the Croatian Ustasha killed Serbs
                      in the Second World War”, says Huntington. The relationship character-
                      ized by a lack of tolerance towards Serbs enjoyed at that time the support
                      of an important ally of the Ustasha NDH — Nazi Germany. During the
                      meeting between Ante Pavelić and Adolf Hitler, in connection with the
                      “Serbian question”, Hitler pronounced a sentence which was probably
                      prepared in advance and, hence, particularly stressed : “If the Croatian
                      State desires to be really strong, it will have to pursue nationally intoler-
                      ant policy for 50 years, because excessive tolerance in these questions
                      causes only damage.” (S. P. Huntington, The Clash of Civilizations, 1996,
                      p. 261.)

                      537

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                      537 	     application of genocide convention (sep. op. kreća)

                         130.2. The attention was brought to all these facts in 2009 by the Slo-
                      vene State Council, the other Chamber of the Slovene Parliament, which
                      even adopted a separate statement in connection with the cherishing of
                      the attainments of the NDH in the neighbouring country, which pro-
                      voked numerous strong reactions. Namely, in the course of the debate
                      concerning the ratification of the accession of Croatia to the NATO Alli-
                      ance, the Slovene State Council adopted, at its 13th meeting, a statement
                      to the effect that Croatia should be aware of responsibility for the respect
                      for the basic values expected of NATO membership. As an aggravating
                      circumstance for the accession to NATO membership, the neighbouring
                      country was reproached for “the attitude of Croatia towards NDH tradi-
                      tion”, in view of the fact that “the NDH is to this day a constitutive part
                      of the Croatian national conscience” (“Hrvaška : Gre za škandalozno
                      obtozbo”, 24ur, 24 January 2009, dostupno preko : http://www.24ur.com/
                      novice/svet/hrvaska‑gre‑za‑skandalozno‑obtozbo.html).
                         130.3. The mayor of Split, the largest city in Dalmatia, reacted in con-
                      nection with the meeting organized in Split on 11 January 2014 by the
                      second‑largest political party in Croatia, the HDZ (Croatian Democratic
                      Union), founded by President Tudjman, on the occasion of the celebra-
                      tion of its 24th anniversary.
                         Mayor Baldasar, inter alia, says :
                               “The messages uttered in Split take us, as a society, several steps
                            back and do not contribute in any way whatsoever to constructive
                            solutions aimed at a better present and a better future of citizens who
                            are preoccupied with quite concrete problems ; problems for which
                            not a single solution has been offered by Mr. Karamarko and others.
                            The Ustasha greetings at public gatherings, hatred speech and manip-
                            ulation of historical facts do not reflect patriotism nor care for the
                            well‑being of Croatia and its citizens. Therefore, I wish that the
                            Split HDZ, as well as the HDZ as a whole, celebrate the next anni-
                            versary in a more dignified and more decent way befitting to a polit-
                            ical party calling itself democratic.” (http://www.dnevno.hr/vijesti/
                            hrvatska/111419‑baldasar‑porucio‑hadezeovcima‑iduci‑put‑k,
                            12 January 2014.)

                         131. Special value in that regard possesses statements of high officials
                      and leading politicians in Croatia as regards President Tudjman’s policy
                      (Military and Paramilitary Activities in and against Nicaragua (Nicara‑
                      gua v. United States of America), Merits, Judgment, I.C.J. Reports 1986,
                      p. 41, paras. 64-65, p. 43, para. 70, and p. 47, para. 78 ; Armed Activities
                      on the Territory of the Congo (Democratic Republic of the Congo v.
                      Uganda), Judgment, I.C.J. Reports 2005, pp. 206‑207, para. 78).

                         131.1. Ivica Račan, former leader of the SDP (Party of Democratic
                      Reform), now the ruling party of Croatia, and Prime Minister of Croatia
                      from 2000‑2003, characterized Tudjman’s Party, HDZ (Croatian Demo-

                      538

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                      538 	     application of genocide convention (sep. op. kreća)

                      cratic Union), as the “party of dangerous intentions” because it “invokes
                      the ghost of the NDH”. Račan’s endeavour to draw attention to the
                      unacceptability of resurrection of the achievements of the NDH did not
                      fall on fertile ground ; the majority of the Croatian public, at least judging
                      by the great support enjoyed by the HDZ for many years, did not reject
                      Tudjman’s pronouncements nor did it recognize anything negative in his
                      ideology (http://www.hvatski‑fokus.hr/index‑php?option=com‑content&
                      view=article&id=1556:prije‑dvadeset‑godina‑ivica‑raan‑hdz‑je‑
                      stranka‑opasnih‑namjera‑10&catid=22:feljtoni&itemd=46).

                         132. The distinguished Croatian journalist and publisher Slavko Gold-
                      stein, a founder of the Croatian Social Liberal Party and the party’s first
                      leader, said that “the Ustasha regime was an abortive semblance of a
                      legal State, a poorly organized combination of legality and wild chaos”.
                      He further said that “[f]or understandable reasons, in the historical mem-
                      ory of the Serbian people, the Ustasha NDH has never been and will
                      never be anything but a fascist crime, slaughterhouse of the Serbs in Cro-
                      atia and Bosnia and Herzegovina” (Slavko Goldstein, 1941 : Godina koja
                      se vraća (1941 : The Year that Keeps Returning), book review available
                      at : www.nybooks.com/books/imprints/collections/1941‑the‑year‑that‑keeps‑
                      returning).
                         133. The first Minister of the Interior of the Republic of Croatia, and
                      one of the closest associated to President Tudjman, Josip Boljkovac,
                      claims “the Ustasha ideology is still alive in Croatia”. He claims that this
                      “must be a serious warning” and that it is “tragic that the Ustasha ideol-
                      ogy is coming back to Croatia ; that members of the SKOJ (Union of
                      Communist Youth of Yugoslavia), organizers of the 1941 uprising against
                      fascism, are being tried” (“Boljkovac : Ustastvo I dalje zivu u Hrvatskoj”,
                      Glas Istre, 6 January 2014, dostupno preko : http://www.glasistre.hr/
                      vijesti/hrvatska/boljkovac-ustasvo-i-dalje-zivu-u-hrvatskoj-436319).

                        The realization of the idea of an ethnically clean Croatia does not toler-
                      ate restrictions of any kind, tacitly according to the then President
                      of Croatia, Stjepan Mesić. What is essential is to achieve the aim. In a
                      speech to Croatian expatriates in Australia, delivered in the early 1990s,
                      he says :
                               “You see, in the Second World War, the Croats won twice and we
                            have no reason to apologize to anyone. What they ask of the Croats
                            the whole time, ‘Go kneel in Jasenovac, kneel here . . .’ We don’t have
                            to kneel in front of anyone for anything ! We won twice and all the
                            others only once. We won on 10 April when the Axis Powers recog-
                            nized Croatia as a State and we won because we sat after the war,
                            again with the winners, at the winning table.” (“Croatian leader’s
                            speech glorifying World War Two pro‑Nazi State widely condemned”,
                            Text of Report in English by Croatian news agency HINA, BBC Mon-
                            itoring Europe, 10 December 2006, a video of the speech in the orig-

                      539

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                      539 	     application of genocide convention (sep. op. kreća)

                            inal Serbo‑Croatian can be viewed at http://emperor.vwh.net/croatia/
                            MesicVideo.wmv) 2.

                      3.6. State symbols and other acts
                         134. Every State autonomously determines its symbols, i.e., signs by
                      which it is recognized. The choice of State symbols is a matter of option,
                      a strictly internal domain of the State.
                         Under the December 1990 amendments to the Constitution, as a new
                      State symbol was adopted the HDZ party flag with šahovnica, a red and
                      white chequerboard pattern “[that] was . . . employed by the Ustasha
                      regime and which the Croatian Serbs considered as ‘footprint of the
                      Ustashe’” (Marcus Tanner, Croatia : A Nation Forged in War, 1997,
                      p. 223). To “many Jews, Serbs and others, it is a symbol almost as hateful
                      as the swastika” (S. Kinzer, “Pro‑Nazi Rulers’ Legacy Still Lingers for
                      Croatia”, The New York Times, 31 October 1993). Tudjman’s régime
                      “also renamed the police into ‘redarstvo’ which had Ustasha connota-
                      tions, renamed streets and public places after World War II generals”
                      (C. Bennett, Yugoslavia’s Bloody Collapse : Causes, Course and Conse‑
                      quences, 1995, p. 141).

                       Furthermore, at President Tudjman’s proposal, the Croatian parlia-
                      ment adopted a
                            “new currency and call[ed] it kuna, which was the name of the national
                            currency of the Ustasha period. A prominent Croatian Jew,
                            Slavko Goldstein, wrote in a newspaper’s commentary that the deci-
                            sion ‘will awaken very deep feelings of antagonism in a not‑small

                         2 As far as the reaction to this statement of President Mesić, Jared Israel, in Ency‑

                      clopedia of the Holocaust states :
                               “Despite the political significance of this video, both in terms of understanding
                            the Serbian‑Croatian conflict over the past sixteen years and judging the sincerity of
                            Croatian President Mesić’s current claim to abhor Ustasha politics, and despite the
                            fact that three leading Croatian TV newspeople were suspended for broadcasting
                            the video and subsequently reinstated, following an uproar in Croatia, despite these
                            highly newsworthy events, and despite the fact that some of the main international
                            news agencies — including Associated Press, Agence France Presse, ANSA and BBC
                            Monitoring — all covered this story, nevertheless, out of the thousands of English,
                            French, German, Italian, Spanish and Dutch newspapers and TV news stations
                            archived by the Lexis‑Nexis media search engine, we could find only one — the
                            Dutch newspaper, Dagblad van het Noorden — that even mentioned the scandal.”
                            (http://de-construct.net/e-zine/?p=361)

                      540

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                      540 	    application of genocide convention (sep. op. kreća)

                            portion of the population for whom these associations are extremely
                            painful’.” (C. Bennett, op. cit.)

                         The names of streets and institutions were changed, i.e., instead of the
                      names from the period of Yugoslavia, newly-given names are associated
                      with Ustasha Croatia. Immediately after Tudjman’s coming to power, an
                      elementary school in Zagreb was renamed after Mile Budak, Minister of
                      Justice under the Ustasha State, the main Ustasha ideologist and author
                      of the formula for the solution of the Serb question. Budak fled from
                      Zagreb on 6 May 1945, but was handed over to Tito’s Yugoslavia by the
                      English authorities on 18 May 1945. As a war criminal Budak was sen-
                      tenced to death. As can be seen from the decision of the Croatian Minis-
                      ter of Public Administration, Arsen Banko, about the removal of the
                      “names of streets given in honour of a senior Ustasha official”, there still
                      remain streets named after Mile Budak in ten cities and local districts
                      (Danas, Croatian edition, 3 January 2014). The decision met with opposi-
                      tion, so that the final decision will be made by the competent municipal
                      court. It is interesting to note that the Association for the Promotion of
                      Local Government and Self‑Rule requested already in April 2011 that the
                      street in Slavonski Brod named after Dr. Mile Budak be renamed ; the
                      City Council, however, refused with the explanation that the change
                      would entail considerable financial costs.
                         135. Upon Tudjman’s rise to power, a plaque in memory of Mile Budak
                      was raised in Sveti Rok, whereas another plaque in memory of
                      Juraj Francetić, Commander of the notorious Black Legion and Ustasha
                      Commissioner for Bosnia and Herzegovina responsible for the massacre
                      of Bosnian Serbs and Jews was put up in Slunj. Both memorials were
                      removed in 2004 by the decision of the Croatian Government with the
                      explanation that the fixing of the plaques was “contrary to the original
                      basic principles of the Constitution of the Republic of Croatia and that it
                      harms the reputation and interests of the Republic of Croatia” (Hrvatska
                      riječ, 10 March 2013). However, in January 2005, another memorial to
                      J. Francetić and Mile Budak was built in the outskirts of Split (E. Pond,
                      Endgame in the Balkans : Régime Change, European Style, 2006,
                      pp. 135‑136). The 13th and the 14th battalions of the Croatian Defence
                      Forces were also named after Francetić, as well as a military unit of the
                      Croatian Defence Council which was active in central Bosnia and Herze-
                      govina in 1993 (C. Shrader, The Muslim‑Croat Civil War in Central Bos‑
                      nia : A Military History, 1992‑1994, 2003). The “Victims of Fascism
                      Square” in Zagreb was renamed the “Square of Croatian Giants”.

                        Ambassador Zimmermann noted that :
                               “By changing street names that had previously honoured victims
                            of fascism and reviving the traditional Croatian flag and coat of arms
                            last used during the 1941‑1945 Ustaše dictatorship, the Croatian Gov-
                            ernment contributed to the resurrection of this grotesque period in

                      541

7 CIJ1077.indb 1078                                                                                18/04/16 08:55

                      541 	    application of genocide convention (sep. op. kreća)

                            the minds of Serbs.” (W. Zimmermann, Origins of a Catastrophe :
                            Yugoslavia and Its Destroyers — America’s Last Ambassador Tells
                            What Happened and Why, 1996, p. 75.)

                         136. The glorification of the Ustasha ideology (Ustaštvo) and its
                      prominent members was accompanied by the destruction of the symbols
                      of the anti‑fascist struggle.
                         In the period from 1990‑2000, most of the symbols of the anti‑fascist
                      struggle were devastated in Croatia. Over 3,000 of them were demolished,
                      damaged or removed (http://www.slobodnaevropa.org./content/article/
                      703313.html).
                         Croatian anti‑fascist Juraj Hrženjak, participant in the People’s Libera-
                      tion War, is one of the authors of the monograph entitled “The Destruc-
                      tion of the Anti‑Fascist Monuments in Croatia 1990‑2000”. Hrženjak
                      notes, inter alia, that 2,904 destroyed or desecrated memorials, busts and
                      mass graves have been listed. He says that one should add to this number
                      “about 500 memorials which could not be recorded due to the fact that
                      the extremist Right was in power in these areas ; that due to this fact our
                      veterans who wanted to put them on the list were exposed to threats,
                      sometimes even threats with death” (http://www.dw.de/sramna‑epizoda‑
                      hrvatske‑istorije‑16044052).

                         137. The requests by the Association of Anti‑Fascists for the “safe-
                      guarding of memorials as heritage usually come up against a wall of
                      silence” (ibid.).
                         A very small number of devastated anti‑fascist memorials have been
                      repaired. Among those that have been restored is the monument to the
                      leader of the Anti‑Fascist Movement, Josip Broz Tito, in his native place
                      of Kumrovec and the memorial plaque in the Ustasha concentration
                      camp Jadovno. According to the words of Croatian President I. Josipović,
                      who attended the commemoration in Jadovno, “between 30,000 and
                      40,000 persons were killed there during the war” (Jutarnji list hr., 26 June
                      2010). The restoration of the anti‑fascist memorials seems, however, to
                      meet with numerous obstacles.
                         138. The Croatian daily newspaper with the highest circulation,
                      Jutarnji list, published a text entitled : “We spend 350 million kunas annu-
                      ally for the military of the NDH.” The text says, inter alia, that the Par-
                      liament of the Republic of Croatia adopted amendments to the Law on
                      Pension and Disability Insurance in 1993

                            “which provide for that each year of service that the members of the
                            NDH armed forces, called in that law the ‘homeland army’, spent in
                            the NDH armed formations counts as two years of service. The same
                            criterion is applicable to the years which the members of these forces
                            spent in captivity as POWs after 16 May 1945. The amendments to
                            the legislation bear the signature of the then Speaker of the House of

                      542

7 CIJ1077.indb 1080                                                                                18/04/16 08:55

                      542 	    application of genocide convention (sep. op. kreća)

                           Deputies, Stjepan Mesić.” (http://www.jutarnji.hr/za‑vojnike‑ndh‑
                           godisnje‑placamo‑350‑milijuna‑kuna/1134285/)
                         On the basis of the said law “more than 13,000 members of the Ustasha
                      units, Poglavnik’s (i.e., Pavelićs) Life Guard(s), World War Two Domo-
                      brans (home guardsmen) and paramilitary policemen, as well as members
                      of their family entitled to pension after the death thereof, are on the files
                      of the Social Security Bureau” at present (ibid.). The amount of 350 mil-
                      lion kunas (about 45 million euros) is allocated annually for the members
                      of the armed forces (ibid.).

                         In contrast, Croatia has never investigated where and/or in whose
                      hands ended up gold and other valuable objects plundered during the
                      persecutions and pogroms of Serbs and Jews. The fate of the property of
                      persecuted Serbs and Jews has not been established, nor has anyone suc-
                      ceeded in getting the Croatian authorities after 1991 to include this ques-
                      tion on the agenda. And it was precisely in these years that the Croatian
                      President, Franjo Tudjman intensively worked on the project of revital-
                      ization, toleration and glorification of the Ustasha ideology in today’s
                      Croatia. Susan Woodward, in her book entitled Balkan Tragedy thus
                      came to the conclusion that the
                           “revisionist history of the Croatian leader Franjo Tudjman relating
                           to the genocide committed against Serbs, Jews and Roma during the
                           existence of the Independent State of Croatia in the period from
                           1941‑1945, became politically dangerous at the moment when the
                           election of Tudjman as President was financially supported mostly by
                           the rightist émigrés from that period, who brought with them the State
                           symbols, as well as when special taxes were imposed on Serbs who
                           had summer houses in Croatia (but not on other persons from some
                           other republics)” (S. L. Woodward, Balkan Tragedy : Chaos and Dis‑
                           solution after the Cold War, 1995, p. 229).

                      3.7. Statements of Croatia’s officials in the light of the jurisprudence of the
                            ICTR regarding incitement
                         Dr. Franjo Tudjman, Pre-           The Prosecutor v. Tharcisse Muvunyi
                      sident of the Republic of Croatia,
                      during the first election campaign       “[T]he Chamber recalls that :
                      in 1989 :                             (1) Witness FBX testified that Muvu-
                                                            nyi told them that even if people
                         “Thank God my wife is              refused to hand over the Tutsis in hid-
                      neither a Serb nor a Jew.”            ing, they had to do so because when a
                      (Counter‑Memorial, Ann. 51 ;          snake wraps itself around a calabash,
                      emphasis added.)                      you have to kill the snake and break
                                                            the calabash ; (2) Witness AMJ testi-
                         Dubravko Horvatić Croatian         fied that Muvunyi said that babies
                      academic and writer, in his arti-     born to Tutsi girls married to Hutu
                      cle Matoš o Srbiji published in       men after 6 April had to be killed like

                      543

7 CIJ1077.indb 1082                                                                                18/04/16 08:55

                      543 	    application of genocide convention (sep. op. kreća)

                      the daily newspaper Večernj list,      snakes are killed ; (3) Witness CCP
                      Zagreb, 17 June 1992 :                 testified that Muvunyi said that Tutsis
                                                             were comparable to snakes and had
                                                             to be killed ; and (4) Witness CCP tes-
                         “Matoš [Croatian poet] taught       tified that Muvunyi used a Rwandan
                      both his contemporaries and gen-       proverb to the effect that the Tutsi
                      erations to come what Serbia is        girls that had been ‘married’ to Hutu
                      and what it is like. On reading        men should die in a forest in a faraway
                      him today, we discover that the        place.
                      experience tells us how much
                      Matoš was right in saying that            Accordingly, the Chamber notes
                      Serbia is the winner of the ‘world     that all four witnesses testified that
                      championship of killing and seri-      Muvunyi used Kinyarwanda proverbs
                      ous crimes’. . . However, by strip-    to urge the audience to kill Tutsis, and
                      ping the mask off Serbia he has        that three Prosecution witnesses
                      enormously helped us to learn the      recalled that Muvunyi used proverbs
                      lesson that is particularly relevant   comparing Tutsis to snakes to urge the
                      today : in order for Croats and        crowd to kill Tutsis.
                      other nations to be able to survive,
                      Serbia must be totally and utterly         The Chamber also notes the evi-
                      defeated. ” (Counter‑Memorial,         dence of Evariste Ntakirutimana, a
                      Ann. 51 ; emphasis added.)            sociolinguist who was accepted as an
                                                             expert witness for the Prosecution.
                                                             ��������������������������������������������������������������
                        Dr. Franjo Tudjman :
                                                                 Ntakirutimana’s evidence is that a
                                                             proverb is a sentence, which may sum‑
                         “And there can be no return to
                      the past, to the times when they       marize an entire context ; it is an
                      the Serbs were spreading cancer in     attempt to say the most possible
                      the heart of Croatia, cancer which     through the least possible words. Pro
                      was destroying the Croatian            verbs are universally accepted truths,
                      national being and which did not       so they are employed in an attempt to
                      allow the Croatian people to be the    summarize a message into a universally
                      master in its own house and did        accepted fact that everyone should be
                      not allow Croatia to lead an inde-     aware of or admit to.
                      pendent and sovereign life under       ��������������������������������������������������������������
                      this wide, blue sky and within the
                      world community of sovereign           [T]he use of a proverb makes it easier
                      nations.” (Croatian President          for such an audience to understand the
                      Franjo Tudjman’s Speech on             meaning of what is being conveyed ; it
                      “Freedom Train” Journey after          reduces the distance between the per‑
                      Driving 250,000 Serbian civilians      son who is speaking and the target of
                      from the Krajina Section of            the message. Ntakirutimana also
                      Yugoslavia, BBC Summary of             stated that speakers during the Rwan-
                      World Broadcasts, 28 August            dan war avoided calling the adver-
                      1995 ; emphasis added.)                sary, the Tutsi, by its real name to

                      544

7 CIJ1077.indb 1084                                                                                18/04/16 08:55

                      544 	    application of genocide convention (sep. op. kreća)

                         Metaphor used by Croatian          avoid interference or intervention by
                      Minister of Foreign Affairs,          foreigners.
                      Hrvoje Sarinić in his conversa-
                      tion with the US Ambassador               For example, the term ‘snake’ is uti‑
                      Mr. Peter Galbraith, when they,       lized to show that there should be no
                      after Operation Storm, discussed      pity when dealing with the Tutsi. Nta-
                      the opportunities for Serbs to        kirutimana testified that a calabash is
                      come back to their homes in           a container of great value, in which
                      Krajina.                              milk is stored. Consequently, the pro
                                                            verb ‘when a snake twirls around a
                                                            calabash, the calabash must be broken
                         According to Galbraith, who        in order to destroy the snake’ conveys
                      testified in Gotovina, Sarinić said   the meaning that if you have a precious
                      the following : “We cannot            object that comes under threat, you
                      accept them to come back. They        may have to sacrifice the object rather
                      are cancer in the stomach of          than sacrifice yourself.
                      Croatia.” (Gotovina et al., testi-    ��������������������������������������������������������������
                      mony of witness Peter Gal-
                      braith, 23 June 2008, Transcripts,       In giving such a speech, the Cham-
                      p. 4939.)                             ber finds that there is no reasonable
                                                            doubt that Muvunyi intended to incite
                                                            the audience to commit acts of geno‑
                      National, Ethnic and Religious        cide. The Chamber further finds that
                      Hatred — context in which             the Prosecution has proven beyond all
                      Operation Storm was conducted         reasonable doubt that Muvunyi pos‑
                                                            sessed the requisite intent to destroy
                                                            the Tutsi group as such.” (Muvunyi,
                         Croatian philosopher Zarko         ICTR‑00‑55A-T, Trial Judgment,
                      Puhovski, described this context      11 February 2010, paras. 120‑128 ;
                      clearly in his statement recorded     emphasis added.)
                      in the documentary “Storm over
                      Krajina”. He said :                   The Prosecutor v. Clément Kayishema
                                                            The Effects of Extremist Ideology
                         “We are talking here about a       Disseminated Through the Mass
                      large number of incidents which       Media
                      were influenced by motions. But
                      these incidents, these motions           “Military and civilian official [sic]
                      had been prepared for years           perpetuated ethnic tensions prior to
                      through propaganda, from televi‑      1994. Kangura newspaper, established
                      sion to the president of the coun‑    after the 1990 RPF invasion, Radio
                      try and all public factors. In        Television Mille Colline (RTLM) and
                      Croatia, which convinced the Cro‑     other print and electronic media took
                      atian population and especially       an active part in the incitement of the
                      the soldiers that the Serbs are       Hutu population against the Tutsis.
                      guilty as such and they should be     Kangura had published the ‘Ten
                      punished as such.” (Gotovina et       Commandments’ for the Hutus in

                      545

7 CIJ1077.indb 1086                                                                                18/04/16 08:55

                      545 	    application of genocide convention (sep. op. kreća)

                      1991, al., Transcripts, 13 Febru-       1991, which stated that the Tutsis
                      ary 2009, p. 15901 ; emphasis           were the enemy. In addition, accord-
                      added.)                                 ing to witnesses, in 1991 ten military
                                                              commanders produced a full report
                                                              that answered the question how to
                        Miro Bajramovic :                     defeat the enemy in the military, media
                                                              and political domains. These witnesses
                                                              also testified that in September 1992
                         “My name is Miro Bajramovic          the military issued a memorandum,
                      and I am directly responsible for       based on the 1991 report, which also
                      the death of 86 people . . . I killed   defined ‘the enemy’ as the Tutsi popu-
                      72 people with my own hands,            lation, thereby transferring the hostile
                      among them nine were women.             intentions of the RPF to all Tutsis.
                      We made no distinction, asked no        According to one report, prior to
                      questions, they were ‘Chetniks’         6 April, the public authorities did not
                      [Serbs], and our enemies.” (Inter-      openly engage in inciting the Hutus to
                      view with Miro Bajramovic,              perpetrate massacres. On 19 April
                      Feral Tribune, Split, Croatia,          however, the President of the Interim
                      1 September 1997 ; emphasis             Government, told the people of
                      added.)                                 Butare to ‘get to work’ in the Rwan-
                                                              dan sense of the term by using their
                                                              machetes and axes.
                        Miro Bajramovic :                     ��������������������������������������������������������������

                                                                  The dissemination and acceptance
                          “We did not separate Serb           of such ideas was confirmed by a
                      civilians and soldiers from each        Hutu policeman to Prosecution wit-
                      other. If we found a rifle hidden       ness Patrick de Saint‑Exupéry, a jour-
                      in his/her house, we considered
                                                              nalist reporting for the French
                      him/her a Chetnik. Serbs at the
                                                              newspaper Le Figaro. De Saint‑Exu-
                      time could not survive, because
                                                              pery remarked that the policeman had
                      there is a saying : wherever we
                                                              told him how they killed Tutsis
                       trod, the grass does not grow
                                                              ‘because they were the accomplices of
                       again.” (Ibid.)
                                                              the RFF’ and that no Tutsis should be
                          “When I recall all that
                                                              left alive.
                      torturing, I wonder how they

                                                              ��������������������������������������������������������������
                      managed to think of all those
                      methods. For example, the most
                      painful is to stick little pins            In summary, the Trial Chamber
                      under the nails and to connect it       finds that the massacres of the Tutsi
                      to the three‑phase current ;            population indeed were ‘meticulously
                      nothing remains of a man, but          planned and systematically co-ordi‑
                      ashes.”                                 nated’ by top-level Hutu extremists in
                          “After all, we knew that they       the former Rwandan government at the
                      would all be killed, so it did not      time in question. The widespread
                      matter if we hurt him more              nature of the attacks and the sheer
                      today or tomorrow.” (Ibid.)             number of those who perished within

                      546

7 CIJ1077.indb 1088                                                                                18/04/16 08:55

                      546 	    application of genocide convention (sep. op. kreća)

                        Sime Djodan, Special Envoy           just three months is compelling evi-
                      of the Croatian President              dence of this fact. This plan could not
                      Franjo Tudjman, in his speech          have been implemented without the
                      at a traditional competition in        participation of militias and the Hutu
                      Sinj held in August 1991 : “The        population who had been convinced by
                      Serbs had pointed heads and            these extremists that the Tutsi popula‑
                      probably also small brains.”           tion, in fact was the enemy and respon-
                      (Counter‑Memorial, Ann. 51.)           sible for the downing of President
                                                             Habyarimana’s airplane.

                        Krešimir Dolenčić, Director             The cruelty with which the attackers
                      of Gavella Theatre in Zagreb,          killed, wounded and disfigured their vic‑
                      12 November 1991 :                     tims indicates that the propaganda
                                                             unleashed on Rwanda had the desired
                                                             effect, namely the destruction of the
                          “Beasts from the East stand no     Tutsi population. The involvement of
                      chance. A monkey smashes every-        the peasant population in the massa-
                      thing around the house and it is       cres was facilitated also by their mis-
                      all the house and it is all the same   placed belief and confidence in their
                      to the animal whether it smashed       leadership, and an understanding that
                      a glass or a Chinese vase, because     the encouragement of the authorities to
                      it is unable to tell the difference.   guaranteed [sic] them impunity to kill
                      There is no way that the monkey        the Tutsis and loot their property.
                      has any chance in the fight against
                      the human. There will always be a         Final reports produced estimated
                      way to put it to sleep and place it    the number of the victims of the geno-
                      in a cage where it belongs . . . The   cide at approximately 800,000 to
                      distinction between us and them        one million, nearly one‑seventh of
                      is like between computers of the       Rwanda’s total population. These
                      first and the fifth generation.        facts combined prove the special intent
                      They should either be held in cap‑     requirement element of genocide.
                      tivity or destroyed, because noth‑     Moreover, there is ample evidence to
                      ing better could be expected of        find that the overwhelming majority of
                      them. There could not be much          the victims of this tragedy were Tutsi
                      talk or negotiations with them.        civilians which leaves this Chamber
                      I am convinced that their culture      satisfied that the targets of the massa‑
                      is below the primitive level,          cres were ‘members of a group’, in this
                      since primitive cultures can be        case an ethnic group. In light of this
                      interesting and rich spiritually.”     evidence, the Trial Chamber finds a
                      (Counter‑Memorial, Ann. 51 ;           plan of genocide existed and perpetra-
                      emphasis added.)                       tors executed this plan in Rwanda
                                                             between April and June 1994.”

                        Miro Bajramovic :                    Kayishema’s Utterances

                        “We worked in two groups,               “Kayishema’s utterances, as well as
                      one was in charge of taking            utterances by other individuals under

                      547

7 CIJ1077.indb 1090                                                                                18/04/16 08:55

                      547 	   application of genocide convention (sep. op. kreća)

                      them to Velesajam, and the          his direction before, during and after
                      other of taking them further. I     the massacres, also demonstrate the
                      mostly attended arrests, because    existence of his specific intent. Tutsis
                      I am a rhetoric and I tried to be   were called ‘Inkotanyi’ meaning an
                      civil on such occasions. I always   RPF fighter or an enemy of Rwanda.
                      told prisoners that I was only      Inyenzi meaning cockroach. They also
                      doing my job.” (Interview with      were referred to as filth or dirt. Wit-
                      Miro Bajramovic, Feral Tribune,     ness WW testified how she heard the
                      Split, Croatia, 1 September         Tutsi were being referred to as ‘dirt’
                      1997.)                              when Kayishema told Bourgmestre
                                                          Bagilishema that ‘all the dirt has to be
                                                          removed’ referring to the Tutsis who
                        Franjo Tudjman :                  had sought shelter in the communal
                                                          office. During the attacks at the Sta-
                                                          dium, Kayishema called the Tutsis :
                        “And, particularly, gentle-       ‘Tutsi dogs’ and ‘Tutsis sons of bitches’
                      men, please remember how many       when instigating the attackers to kill
                      Croatian villages and towns have    the Tutsis gathered there.
                      been destroyed, but that’s still
                      not the situation in Knin           ��������������������������������������������������������������
                      today . . .” (Minutes of the
                      Meeting held by the President of
                      the Republic of Croatia,               Several witnesses who survived the
                      Dr. Franjo Tudjman, with            massacres at the Complex heard Kay-
                      Military Officials, on 31 July
                                                         ishema say ‘go to work’ or ‘get down
                      1995, Brioni, Counter‑Memorial,     to work’ which, as many witnesses
                      Ann. 52, p. 11 ; emphasis added.)   affirmed, meant to begin killing the
                                                         Tutsis. Other witnesses testified to
                                                          having heard the attackers, including
                        Croatian Defence Minister,        members of the Interahamwe, who
                      Spegelj, stated in 1991 :           were de facto under Kayishema’s con-
                                                          trol, sing songs about exterminating
                                                          the Tutsi.
                          “Listen to the Commander.
                      First, your entire Command will     ��������������������������������������������������������������
                      be defeated, no one will survive,
                      we will spare no one. Give up all
                      illusion of raising alarm.”            In sum, for all the reasons stated
                      (Memorial, Ann. 148 ; emphasis      above the Chamber finds beyond a
                      added.)                             reasonable doubt that Kayishema had
                                                          the intent to destroy the Tutsi group in
                        Witness John William Hill         whole or in part and, in pursuit of that
                      further added that he talked to     intent, carried out the acts detailed
                      some Croatian soldiers in front     below.”       (Kayishema      et     al.,
                      of the United Nations camp          ICTR‑95‑1-T,        Trial    Judgment,
                      who told him that “they were        21 May 1999, paras. 279, 281, 289‑291,
                      going to kill all the Serbs” (see   538‑540 ; emphasis added.)

                      548

7 CIJ1077.indb 1092                                                                                18/04/16 08:55

                      548 	    application of genocide convention (sep. op. kreća)

                      ICTY, Gotovina et al., IT‑060‑90,       The Prosecutor v. J. Kajelijeli
                      testimony of witness John Wil-
                      liam Hill, 27 May 2008, Tran-               “The Chamber found that at a
                      script, p. 3751 ; emphasis added).      meeting on the evening of 6 April 1994
                                                              following the death of the President
                                                              of the Republic of Rwanda, at the
                         Witness Božo Suša stated that        canteen next to the Nkuli Commune
                      he had seen and heard a Croa-           Office, the Accused addressed those
                      tian army officer who on                persons present — who were all of
                      5 August, entering Knin on the          Hutu ethnic origin — saying to them
                      main road, had ordered his sol-         ‘you very well know that it was the
                      diers to “shoot them all at ran‑        Tutsi that killed — that brought down
                      dom”. The execution of Serb             the Presidential plane. What are you
                      refugees, on two tractors was           waiting for to eliminate the enemy ?’
                      conducted immediately after.            The Chamber found that by ‘the
                                                              enemy’ the Accused meant the Tutsi
                                                              ethnic group.
                         The evidence is corroborated         ��������������������������������������������������������������
                      by a statement of one Croatian
                      war veteran who was interviewed
                                                                 The Chamber found that a woman
                      by Croatian daily “Jutarnji list”
                      in 1998. He stated :                    who was thought to be Tutsi and her
                                                              son were singled out at a roadblock in
                                                              front of Witness GDQ’s house on
                         “The plan was to clean every-        8 April 1994, and subsequently killed
                      thing up as soon as possible.           by an lnterahamwe named Musafiri.
                      Some will get out, and we’ll waste      Kanoti, a Hutu man who was also
                      the others . . . there were no civil‑   present, and accompanying these vic-
                      ians for us ; they were simply all      tims, was not killed. The Accused was
                      enemies . . . It was an unwritten       present at the roadblock during this
                      order that there were no prison-        event and was heard saying, ‘No Tutsi
                      ers of war to be taken but, for         should survive at Mukingo’.
                      the sake of saving our face
                      before world public opinion, a             The Chamber found that, on
                      very small number of prisoners          8 April 1994, the Accused and the
                      of war were nonetheless left            lnterahamwe were inspecting bodies
                      alive.” (Rejoinder of Serbia,           and searching for survivors. Witness
                      para. 720 ; emphasis added.)           GBH pleaded with the Accused to
                                                              stop the killings, however, in the
                                                              words of GBH, the Accused
                         “As a result of these wide-          responded by saying ‘that it was nec‑
                      spread and systematic unlawful          essary to continue, look for those or
                      acts during the Croatian mili-          hunt for those who had survived’.
                      tary operation, the Medak
                      Pocket became uninhabitable.               On the basis of the established
                      The villages of the Pocket were         facts, the Chamber finds that the kill-
                      destroyed, thereby depriving the        ings upon which the Chamber heard

                      549

7 CIJ1077.indb 1094                                                                                18/04/16 08:55

                      549 	    application of genocide convention (sep. op. kreća)

                      Serbian civilian
                                       population of        evidence as occurring in Mukingo,
                      their home and livelihood.”           Nkuli and Kigombe Communes,
                      (ICTY, Ademi and Norac,               were, at all relevant times pleaded in
                      IT‑01‑46 and IT‑04‑76, Consoli-       the Indictment, systematically directed
                      dated Indictment, para. 50 ;          against Tutsi civilians. The words and
                      emphasis added.)                      deeds of the Accused show clearly
                                                            that he directed and participated in
                                                            those killings with the specific intent
                         “In the whole Krajina region       to destroy the Tutsi ethnical group.”
                      houses were burning and even          (Kajelijeli, ICTR‑98‑44A-T, Trial
                      today, more than five weeks           Judgment,      1    December      2003,
                      after the last battles, they are      paras. 819, 826‑828 ; emphasis
                      still burning. Destroying big         added.)
                      complex[es] of non‑Croat prop-
                      erties can lead to the conclusion     The Prosecutor v. Callixte Kaliman‑
                      that this was not done only by        zira
                      mobs and that the whole affair
                      was tolerated by the Croatian            “The Chamber recalls that a call to
                      Government . . . [The] result         defend oneself against the enemy is not
                      will be an efficient impediment of    intrinsically illegitimate, particularly
                      the Serb return to their houses       when the ‘enemy’ is clearly restricted
                      and it will also create more diffi‑   to the RPF to the exclusion of Tutsi
                      culties for people to settle down     civilians. In this case, however, the
                      again in this region . . .” (Empha-   Chamber finds that when exhorting
                      sis added.)                          those manning the Kajyanama road-
                                                            block to carry arms in order to
                                                            ‘defend’ themselves against ‘the
                         Marjan Jurić, Deputy in the        enemy’ who might pass through,
                      Croatian Parliament, at a ses-        Kalimanzira was understood to be
                      sion held on 1‑3 August 1991 :        calling for the killing of the Tutsis,
                                                            and that he intended to be understood
                                                            as such. The slapping and abduction of
                         “But I am asking these same        the unarmed man emphasized Kaliman‑
                      Serbs whether it will dawn on         zira’s exhortation and effect on his
                      them when they — and I am just        audience. The incitement was dissemi-
                      wondering — and I’m not mak-          nated in a public place — the road-
                      ing a statement [sic !] — whether     block — to an indeterminate group of
                      they would come to their senses if    people — those present to man it and
                      ten civilians were executed for       anyone else watching or listening.
                      one killed policeman or if a hun‑     Kalimanzira exhibited here, and else‑
                      dred civilians were killed for one    where, an intent to destroy the Tutsi
                      soldier !                             group. As such, the Chamber finds
                         This is something that my          Kalimanzira guilty beyond reasonable
                      Christian, Catholic faith would       doubt for committing Direct and
                      not allow me, because Father          Public Incitement to Commit Geno-
                      Stanko Bogeljic has taught me         cide at the Kajyanama roadblock in
                      that there is one commandment         late April 1994.

                      550

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                      550 	    application of genocide convention (sep. op. kreća)

                      in those ten commandments :            ��������������������������������������������������������������
                      ‘thou shall not kill’, and it does
                      not allow me to say that this is          The Chamber therefore finds that
                      right, but it would be right for       in late May or early June 1994, Kali-
                      me if ten Serb intellectuals           manzira attended a public meeting at
                      would get the sack in Zagreb,          the Nyabisagara football field where
                      Rijeka, Split or Osijek for every      he thanked the audience for their
                      policeman killed. For, intellectu-     efforts at getting rid of the enemy, but
                      als cannot go to the woods.            warned them not to grow complacent,
                      They are not like those ignorant       to remain armed at all times, and
                      Banija peasants who could go to        exhorted the crowd to keep searching
                      bed  without washing their feet       for enemies hidden in the bush or in
                      for a month ! Intellectuals must       other persons homes, which they did.
                      be sacked, because Chetnik ring-       He also instructed them to destroy
                      leaders live in the big cities and     the homes of dead Tutsis and plant
                      we must prevent it . . . Our           trees in their place, which they did. In
                      Almighty God has created at the        the context of these particular instruc-
                      same time both good people and a       tions, which have little to do with
                      lot of vermin. One such vermin is      military combat, and BCZ’s under-
                      the moth which, when let into the      standing of Kalimanzira’s words, the
                      closet, in fact when it comes into     Chamber finds that ‘the enemy’ meant
                      it, eats at the shirt, then it turns   any Tutsi.
                      to the pullover ; it eats and eats
                      until it has eaten everything             The Chamber finds that Kaliman-
                      away. The same is true of those        zira’s call for further elimination of
                      who came to us as our guest‑           Tutsis in hiding was direct, leading
                      workers.” (Deputy Jurić ended          clearly to immediate and commensu-
                      his speech with a raised hand          rate action. It was disseminated in a
                      in a fascist‑style salute, Counter‑   public place to a large public audi-
                      Memorial, Ann. 51 ; emphasis           ence. By instructing the people present
                      added.)                               to kill any surviving Tutsis, demolish
                                                             their homes, and wipe out any traces of
                                                             their existence, there is no reasonable
                         Zvonimir Sekulin, Editor‑in‑      doubt that Kalimanzira intended to
                      Chief of Hrvatski Vijesnik, in his     incite the audience present to commit
                      interview published in the maga-       acts of genocide. Kalimanzira exhib-
                      zine Globus, Zagreb, on 9 Sep-         ited here, and elsewhere, an intent to
                      tember 1994 :                          destroy the Tutsi group. The Cham-
                                                             ber therefore finds Kalimanzira
                                                             guilty beyond reasonable doubt of
                        “Considering      that    the        committing direct and public incite-
                      Hrvatski Vijesnik really runs a        ment to commit genocide at the
                      column entitled ‘hard‑core Serb        Nyabisagara football field in late
                      pornographic pages’, I also            May or early June 1994.” (Kaliman‑
                      admit that this newspaper is in        zira, ICTR‑05‑88-T, Trial Judgment,
                      part pornographic as the Serbs         22 June 2009, paras. 589, 613‑614 ;
                      themselves are pornography.            emphasis added.)

                      551

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                      551 	    application of genocide convention (sep. op. kreća)

                      Photograph of Patriarch Pavle         The Prosecutor v. Simon Bikindi
                      (Head of the Serbian Orthodox
                      Church), published on these               “When heading towards Kayove,
                      pages, is more pornographic           Bikindi used the public address sys-
                      that the  photos of the biggest      tem to state that the majority popula‑
                      whores . . . [name] wrote that I      tion, the Hutu, should rise up to
                      said that some people were ver‑       exterminate the minority, the Tutsi.
                      min. But I say that only              On his way back, Bikindi used the
                      the so‑called Serbian people are      same system to ask if people had been
                      vermin.”    (Counter‑Memorial,       killing Tutsi who were referred to as
                       Ann. 51 ; emphasis added.)           snakes.
                                                            ��������������������������������������������������������������
                        Franjo Tudjman :                       The Chamber finds that both state-
                                                            ments, broadcast over loudspeaker,
                                                            were made publicly. The Chamber
                         “We have to inflict such blows
                                                            also finds that Bikindi’s call on ‘the
                      that the Serbs will, to all practi-
                                                            majority’ to ‘rise up and look every‑
                      cal purposes disappear, that is to
                                                            where possible’ and not to ‘spare any‑
                      say, the areas we do not take at
                                                            body’ immediately referring to Tutsis
                      once must capitulate within a
                                                            as the minority unequivocally consti‑
                      few days.” (Minutes of the
                      Meeting held by the President         tutes a direct call to destroy the Tutsis
                      of the Republic of Croatia,           ethnic group. Similarly, the Chamber
                      Dr. Franjo Tudjman, with mili-        considers that Bikindi’s address to the
                      tary officials, on 31 July 1995,      population on his way back from
                      Brioni, p. 2, Counter‑Memorial,       Kayove, asking ‘Have you killed the
                      Ann. 52 ; emphasis added.)            Tutsis here ?’ and whether they had
                                                            killed the ‘snakes’ is a direct call to kill
                                                            Tutsis, pejoratively referred as ‘snakes’.
                         The Logbook notes “our artil‑      In the Chamber’s view, it is inconceiv-
                      lery was hitting the column pull-     able that, in the context of widespread
                      ing from Petrovac to Grahovo,         killings of the Tutsi population that
                      the score is excellent, the Chet‑     prevailed in June 1994 in Rwanda, the
                      niks have many dead and               audience to whom the message was
                      wounded . . .” (ICTY, Gotovina        directed, namely those standing on the
                      et    al.,   IT‑060‑90,    Reyn-      road, could not have immediately
                      aud Theunes, Expert Report :          understood its meaning and implica‑
                      Croatian Armed Forces and             tion. The Chamber therefore finds
                      Operation Storm, Part II,             that Bikindi’s statements through
                      p. 189 ; emphasis added.)            loudspeakers on the main road
                                                            between Kivumu and Kayove consti-
                                                            tute direct and public incitement to
                                                            commit genocide.

                                                              Based on the words he proffered
                                                            and the manner he disseminated his

                      552

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                      552 	   application of genocide convention (sep. op. kreća)

                        Miro Bajramovic :                  message, the Chamber finds that
                                                           Bikindi deliberately, directly and pub‑
                                                           licly incited the commission of genocide
                          “T. Mercep was commander         with the specific intent to destroy the
                      of Poljane . . . He knew about       Tutsi      ethnic    group.”    (Bikindi,
                      each execution, because he was a     ICTR‑01‑72-T,        Trial   Judgment,
                      commander and was a very             2 December 2008, paras. 281, 423‑424 ;
                      charismatic person. He told us       emphasis added.)
                      several times : ‘Tonight you have
                      to clean all these shits.’           The Prosecutor v. Jean-Paul Akayesu
                      This meant that all prisoners
                      should be executed. The order for        “The Chamber further recalls that
                      Gospic was to perform ‘ethnic        incitement can be direct, and nonethe-
                      cleansing’ so we killed directors    less, implicit.” (Para. 557.)
                      of post offices and hospitals,
                                                           ��������������������������������������������������������������
                      a restaurant owner and many
                      other       Serbs.      Executions
                      were performed by shooting              “(iii) It has been established that
                      at point blank range since we        Akayesu then clearly urged the popu-
                      did not have much time. I            lation to unite in order to eliminate
                      repeat, orders from the head-        what he termed the sole enemy : the
                      quarters were to reduce the          accomplices of the Inkotanyi.
                      percentage of Serbs in Gospic.”
                       (Interview        with      Miro        (iv) On the basis of consistent testi-
                       Bajramovic, Feral Tribune, Split,   monies heard throughout the pro-
                       Croatia, 1 September 1997 ;         ceedings and the evidence of
                       emphasis added.)                    Dr. Ruzindana, appearing as expert
                                                           witness on linguistic matters, the
                                                           Chamber is satisfied beyond a reason-
                        Franjo Tudjman :                   able doubt that the population under‑
                                                           stood Akayesu’s call as one to kill the
                                                           Tutsi. Akayesu himself was fully
                        “[I]n view if the situation cre-   aware of the impact of his speech on
                      ated by the liberation of occu-      the crowd and of the fact that his call
                      pied territories affecting the       to fight against the accomplices of the
                      demographic picture, there is a      lnkotanyi would be construed as a
                      need to make military units one      call to kill the Tutsi in general.
                      of the most effective elements,      ��������������������������������������������������������������
                      which can happen if we properly
                      solve one of the most effective
                      postulates of State politics           (vii) The Chamber is of the opin-
                      in dealing with our essential        ion that there is a causal relationship
                      problem of today, namely,
                                                          between Akayesu’s speeches at the
                      [the] demographic situation          gathering of 19 April 1994 and the
                      in Croatia. That was why I           ensuing widespread massacres of
                      invited to this meeting the          Tutsi in Taba.

                      553

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                      553 	   application of genocide convention (sep. op. kreća)

                      Vice‑Premier and the Minister           From the foregoing, the Chamber
                      responsible for reconstruction       is satisfied beyond a reasonable doubt
                      and development, Dr. Radić, to       that, by the above‑mentioned speeches
                      present, at the opening of this      made in public and in a public place,
                      debate, the present demographic      Akayesu had the intent to directly cre‑
                      situation    because    of    the    ate a particular state of mind in his
                      deployment of military com-
                                                          audience necessary to lead to the
                      mands,      military    districts,   destruction of the Tutsi group, as such.
                      brigade stationing, military
                                                          Accordingly, the Chamber finds that
                      training institutions, etc. It       the said acts constitute the crime of
                      may be effective and useful to       direct and public incitement to commit
                      resolve that situation where we      genocide, as defined above.” (Akayesu,
                      have reinforced or at least          ICTR‑96‑4‑T, Trial Judgment, 2 Sep-
                      should     reinforce   Croatian      tember 1998, paras. 557, 673‑674 ;
                      dom, like in Istria, and in          emphasis added.)
                      other places the more so
                      because it is not so much
                      about changing the composition
                      today as to populate some places     The Prosecutor v. Aloys Simba
                      and areas. Minister Radić
                      explained how they should pro-          “Simba was physically present at
                      ceed :                               two massacre sites. He provided tradi-
                                                           tional weapons, guns, and grenades to
                                                           attackers poised to kill thousands of
                                                           Tutsi. Simba was aware of the target-
                                                           ing of Tutsi throughout his country,
                                                           and as a former military commander,
                                                           he knew what would follow when he
                         ‘I conclude, therefore, that      urge the armed assailants ‘to get rid of
                      red and blue areas should            the filth’. The only reasonable conclu-
                      promptly, and as a matter of         sion, even accepting his submissions
                      priority, be populated by Croats,    as true, is that at that moment, he
                      as far as possible. These areas      acted with genocidal intent.” (Simba,
                      are marked, including Zrinska        ICTR‑2001‑76-T, Trial Judgment,
                      Gora, which I skipped for the        13 December 2005, para. 418 ; empha-
                      time being, and areas such as        sis added.)
                      Lapac and Knin, namely the
                      hinterland and the Herzegovina       The Prosecutor v. Alfred Musema
                      region, which should be given
                      secondary priority, and this           “According to the witness, Musema
                      empty area in Lika as much as        addressed those who had convened in
                      possible . . .’” (Minutes of the     Kinyarwanda, telling them to rise
                      Meeting held by the President of     together and fight their enemy the
                      the Republic of Croatia,             Tutsis and deliver their country from
                      Dr. Franjo Tudjman, with             the enemy. Questions were put to him
                      Military Officials, 23 August        by the crowd, asking what would be
                      1995, Zagreb, pp. 01325991 ;         their rewards considering that they

                      554

7 CIJ1077.indb 1104                                                                                18/04/16 08:55

                      554 	   application of genocide convention (sep. op. kreća)

                      01325993‑01325997 ; Counter‑    might lose their lives in this war.
                      Memorial, Ann. 53, pp. 4‑7 ;    Musema answered that there would
                      emphasis added.)                be no problem in finding rewards,
                                                      that the unemployed would take jobs of
                                                      those killed, and that they would appro‑
                                                      priate the lands and properties of the
                                                      Tutsis.” (Musema, ICTR‑96‑13-T,
                                                      Trial Judgment, 27 January 2000,
                                                      para. 373 ; emphasis added.)

                      (Signed) Milenko Kreća.

                      555

7 CIJ1077.indb 1106                                                                              18/04/16 08:55