           INTERNATIONAL COURT OF JUSTICE

             REPORTS OF JUDGMENTS,
          ADVISORY OPINIONS AND ORDERS

  CASE CONCERNING APPLICATION OF
THE CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE
(BOSNIA AND HERZEGOVINA v. SERBIA AND MONTENEGRO)

          JUDGMENT OF 26 FEBRUARY 2007

                  2007
           COUR INTERNATIONALE DE JUSTICE

              RECUEIL DES ARRE| TS,
       AVIS CONSULTATIFS ET ORDONNANCES

   AFFAIRE RELATIVE A v L’APPLICATION
DE LA CONVENTION POUR LA PRE   u VENTION
ET LA RE
       u PRESSION DU CRIME DE GE u NOCIDE
  (BOSNIE-HERZE
              u GOVINE c. SERBIE-ET-MONTE
                                        u NE
                                           u GRO)

             ARRE
                | T DU 26 FE
                           u VRIER 2007

                             Official citation :
     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, p. 43

                       Mode officiel de citation :
    Application de la convention pour la prévention et la répression
 du crime de génocide (Bosnie-Herzégovine c. Serbie-et-Monténégro),
                    arrêt, C.I.J. Recueil 2007, p. 43

                                               Sales number
ISSN 0074-4441
ISBN 978-92-1-071029-9
                                               No de vente :   921

                                   26 FEBRUARY 2007

                                       JUDGMENT

APPLICATION OF THE CONVENTION ON THE PREVENTION
    AND PUNISHMENT OF THE CRIME OF GENOCIDE
(BOSNIA AND HERZEGOVINA v. SERBIA AND MONTENEGRO)

APPLICATION DE LA CONVENTION POUR LA PRE  u VENTION
      ET LA RE
             u PRESSION DU CRIME DE GE
                                     u NOCIDE
  (BOSNIE-HERZE
              u GOVINE c. SERBIE-ET-MONTE
                                        u NE
                                           u GRO)

                                     26 FE
                                         u VRIER 2007

                                         ARRE
                                            |T

43

                            TABLE OF CONTENTS
                                                                      Paragraphs
     I. QUALITÉS                                                            1-66
     II. IDENTIFICATION OF THE RESPONDENT PARTY                            67-79
    III. THE COURT’S JURISDICTION                                         80-141
          (1) Introduction : the jurisdictional objection of Serbia and
              Montenegro                                                   80-87
          (2) History of the status of the FRY with regard to the United
              Nations                                                      88-99
          (3) The response of Bosnia and Herzegovina                     100-104
          (4) Relevant past decisions of the Court                       105-113

         (5) The principle of res judicata                            114-120
         (6) Application of the principle of res judicata to the 1996
             Judgment                                                 121-139
         (7) Conclusion : jurisdiction affirmed                       140-141
    IV. THE APPLICABLE LAW : THE CONVENTION ON THE PREVENTION AND
        PUNISHMENT OF THE CRIME OF GENOCIDE                               142-201
         (1) The Convention in brief                                      142-149
         (2) The Court’s 1996 decision about the scope and meaning of
             Article IX                                                   150-152
         (3) The Court’s 1996 decision about the territorial scope of the
             Convention                                                   153-154
         (4) The obligations imposed by the Convention on the Con-
             tracting Parties                                             155-179
         (5) Question whether the Court may make a finding of geno-
             cide by a State in the absence of a prior conviction of an
             individual for genocide by a competent court                 180-182

         (6) The possible territorial limits of the obligations         183-184
         (7) The Applicant’s claims in respect of alleged genocide com-
             mitted outside its territory against non-nationals             185

         (8) The question of intent to commit genocide                   186-189
         (9) Intent and “ethnic cleansing”                                   190
        (10) Definition of the protected group                           191-201
     V. QUESTIONS OF PROOF : BURDEN OF PROOF, THE STANDARD OF PROOF,
        METHODS OF PROOF                                             202-230
    VI. THE FACTS INVOKED BY THE APPLICANT, IN RELATION TO
        ARTICLE II                                                       231-376
         (1) The background                                              231-234
         (2) The entities involved in the events complained of           235-241

         (3) Examination of factual evidence : introduction              242-244

4

44       APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

     (4) Article II (a) : killing members of the protected group      245-277

         Sarajevo                                                      246-249
         Drina River Valley                                            250-256
            (a) Zvornik                                                250-251
            (b) Camps                                                  252-256
                   (i) Sušica camp                                         252
                  (ii) Foča Kazneno-Popravní Dom camp                 253-254
                 (iii) Batković camp                                  255-256
         Prijedor                                                      257-269
            (a) Kozarac and Hambarine                                  257-261
            (b) Camps                                                  262-269
                   (i) Omarska camp                                    262-264
                  (ii) Keraterm camp                                   265-266
                 (iii) Trnopolje camp                                  267-269
         Banja Luka                                                        270
            Manjača camp                                                  270
         Brčko                                                        271-277
            Luka camp                                                  271-277
     (5) The massacre at Srebrenica                                    278-297
     (6) Article II (b) : causing serious bodily or mental harm to
         members of the protected group                                298-319
         Drina River Valley                                            305-310
            (a) Zvornik                                                    305
            (b) Foča                                                      306
            (c) Camps                                                  307-310
                   (i) Batković camp                                      307
                  (ii) Sušica camp                                         308
                 (iii) Foča Kazneno-Popravní Dom camp                 309-310
        Prijedor                                                       311-314
            (a) Municipality                                               311
            (b) Camps                                                  312-314
                   (i) Omarska camp                                        312
                  (ii) Keraterm camp                                       313
                 (iii) Trnopolje camp                                      314
         Banja Luka                                                    315-316
            Manjača camp                                              315-316
         Brčko                                                        317-318
            Luka camp                                                  317-318
     (7) Article II (c) : deliberately inflicting on the group condi-
         tions of life calculated to bring about its physical destruc-
         tion in whole or in part                                      320-354
         Alleged encirclement, shelling and starvation                 323-328
         Deportation and expulsion                                     329-334
         Destruction of historical, religious and cultural property 335-344

5

45             APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

             Camps                                                       345-354
                (a) Drina River Valley                                   346-347
                      (i) Sušica camp                                        346
                     (ii) Foča Kazneno-Popravní Dom camp                    347
                (b) Prijedor                                             348-350
                      (i) Omarska camp                                       348
                     (ii) Keraterm camp                                      349
                    (iii) Trnopolje camp                                     350
                (c) Banja Luka                                               351
                    Manjača Camp                                            351
                (d) Bosanski Šamac                                           352
         (8) Article II (d) : imposing measures to prevent births within
             the protected group                                         355-361
         (9) Article II (e) : forcibly transferring children of the pro-
             tected group to another group                               362-367
        (10) Alleged genocide outside Bosnia and Herzegovina             368-369

        (11) The question of pattern of acts said to evidence an intent to
             commit genocide                                               370-376
VII. THE QUESTION OF RESPONSIBILITY FOR EVENTS AT SREBRENICA
     UNDER ARTICLE III, PARAGRAPH (a), OF THE GENOCIDE CONVEN-
        TION                                                              377-415
         (1) The alleged admission                                     377-378
         (2) The test of responsibility                                379-384
         (3) The question of attribution of the Srebrenica genocide to
             the Respondent on the basis of the conduct of its organs 385-395
         (4) The question of attribution of the Srebrenica genocide to
             the Respondent on the basis of direction or control       396-412
         (5) Conclusion as to responsibility for events at Srebrenica
             under Article III, paragraph (a), of the Genocide Con-
             vention                                                   413-415
VIII. THE QUESTION OF RESPONSIBILITY, IN RESPECT OF SREBRENICA, FOR
      ACTS ENUMERATED IN ARTICLE III, PARAGRAPHS (b) TO (e), OF
      THE GENOCIDE CONVENTION                                       416-424
    IX. THE QUESTION OF RESPONSIBILITY FOR BREACH OF THE OBLIGATIONS
        TO PREVENT AND PUNISH GENOCIDE                               425-450
         (1) The obligation to prevent genocide                           428-438
         (2) The obligation to punish genocide                            439-450
     X. THE QUESTION OF RESPONSIBILITY FOR BREACH OF THE COURT’S
        ORDERS INDICATING PROVISIONAL MEASURES                   451-458

    XI. THE QUESTION OF REPARATION                                        459-470
XII. OPERATIVE CLAUSE                                                         471

6

46

                            LIST OF ACRONYMS

    Abbreviation              Full name                      Comments
ARBiH              Army of the Republic of Bosnia
                   and Herzegovina
FRY                Federal Republic of Yugoslavia Name of Serbia and Mon-
                                                    tenegro between 27 April
                                                    1992 (adoption of the
                                                    Constitution) and 3 Feb-
                                                    ruary 2003
ICTR               International Criminal Tribunal
                   for Rwanda
ICTY               International Criminal Tribunal
                   for the former Yugoslavia
ILC                International Law Commission
JNA                Yugoslav People’s Army           Army of the SFRY
                                                    (ceased to exist on
                                                    27 April 1992, with the
                                                    creation of the VJ)
MUP                Ministarstvo Unutrašnjih Pollova Ministry of the Interior
NATO               North Atlantic Treaty Organiza-
                   tion
SFRY               Socialist Federal Republic of
                   Yugoslavia
TO                 Teritorijalna Odbrana            Territorial Defence Forces
UNHCR              United Nations High Commis-
                   sioner for Refugees
UNPROFOR           United Nations Protection Force
VJ                 Yugoslav Army                    Army of the FRY, under
                                                    the     Constitution     of
                                                    27 April 1992 (succeeded
                                                    to the JNA)
VRS                Army of the Republika Srpska

7

               47

                             INTERNATIONAL COURT OF JUSTICE

    2007                                      YEAR 2007
26 February
General List
   No. 91                                  26 February 2007

                 CASE CONCERNING APPLICATION OF
               THE CONVENTION ON THE PREVENTION AND
               PUNISHMENT OF THE CRIME OF GENOCIDE
               (BOSNIA AND HERZEGOVINA v. SERBIA AND MONTENEGRO)

                                             JUDGMENT

               Present : President HIGGINS ; Vice-President AL-KHASAWNEH ; Judges RANJEVA,
                         SHI, KOROMA, OWADA, SIMMA, TOMKA, ABRAHAM, KEITH, SEPÚLVEDA-
                         AMOR, BENNOUNA, SKOTNIKOV ; Judges ad hoc MAHIOU, KRECuA ;
                         Registrar COUVREUR.

                 In the case concerning application of the Convention on the Prevention and
               Punishment of the Crime of Genocide,
                   between
               Bosnia and Herzegovina,
               represented by
                 Mr. Sakib Softić,
                 as Agent ;
                 Mr. Phon van den Biesen, Attorney at Law, Amsterdam,
                 as Deputy Agent ;
                 Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, Member
                    and former Chairman of the United Nations International Law Commis-
                    sion,
                 Mr. Thomas M. Franck, Professor Emeritus of Law, New York University
                    School of Law,
                 Ms Brigitte Stern, Professor at the University of Paris I,

               8

48               APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

    Mr. Luigi Condorelli, Professor at the Faculty of Law of the University of
     Florence,
    Ms Magda Karagiannakis, B.Ec., LL.B., LL.M., Barrister at Law, Mel-
     bourne, Australia,
    Ms Joanna Korner Q.C., Barrister at Law, London,
    Ms Laura Dauban, LL.B. (Hons),
    Mr. Antoine Ollivier, Temporary Lecturer and Research Assistant, Univer-
     sity of Paris X-Nanterre,
    as Counsel and Advocates ;
    Mr. Morten Torkildsen, BSc., MSc., Torkildsen Granskin og Rådgivning,
     Norway,
    as Expert Counsel and Advocate ;
    H.E. Mr. Fuad Šabeta, Ambassador of Bosnia and Herzegovina to the King-
      dom of the Netherlands,
    Mr. Wim Muller, LL.M., M.A.,
    Mr. Mauro Barelli, LL.M. (University of Bristol),
    Mr. Ermin Sarajlija, LL.M.,
    Mr. Amir Bajrić, LL.M.,
    Ms Amra Mehmedić, LL.M.,
    Ms Isabelle Moulier, Research Student in International Law, University of
      Paris I,
    Mr. Paolo Palchetti, Associate Professor at the University of Macerata,
      Italy,
    as Counsel,
    and
Serbia and Montenegro,
represented by
  H.E. Mr. Radoslav Stojanović, S.J.D., Head of the Law Council of the
     Ministry of Foreign Affairs of Serbia and Montenegro, Professor at the
     Belgrade University School of Law,
    as Agent ;
    Mr. Saša Obradović, First Counsellor of the Embassy of Serbia and Mon-
     tenegro in the Kingdom of the Netherlands,
    Mr. Vladimir Cvetković, Second Secretary of the Embassy of Serbia and
     Montenegro in the Kingdom of the Netherlands,
    as Co-Agents ;
    Mr. Tibor Varady, S.J.D. (Harvard), Professor of Law at the Central Euro-
     pean University, Budapest, and Emory University, Atlanta,
    Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Member of the International Law
     Commission, member of the English Bar, Distinguished Fellow of All
     Souls College, Oxford,
    Mr. Xavier de Roux, Maîtrise de droit, avocat à la cour, Paris,
    Ms Nataša Fauveau-Ivanović, avocat à la cour, Paris, member of the Coun-
     cil of the International Criminal Bar,
    Mr. Andreas Zimmerman, LL.M. (Harvard), Professor of Law at the Uni-
     versity of Kiel, Director of the Walther-Schücking Institute,

9

49          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  Mr. Vladimir Djerić, LL.M. (Michigan), Attorney at Law, Mikijelj, Janković
    & Bogdanović, Belgrade, President of the International Law Association
    of Serbia and Montenegro,
  Mr. Igor Olujić, Attorney at Law, Belgrade,
  as Counsel and Advocates ;
  Ms Sanja Djajić, S.J.D, Associate Professor at the Novi Sad University
    School of Law,
  Ms Ivana Mroz, LL.M. (Minneapolis),
  Mr. Svetislav Rabrenović, Expert-associate at the Office of the Prosecutor
    for War Crimes of the Republic of Serbia,
  Mr. Aleksandar Djurdjić, LL.M., First Secretary at the Ministry of Foreign
    Affairs of Serbia and Montenegro,
  Mr. Miloš Jastrebić, Second Secretary at the Ministry of Foreign Affairs of
    Serbia and Montenegro,
  Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Walther-Schücking Insti-
    tute, University of Kiel,
  Ms Dina Dobrkovic, LL.B.,
  as Assistants,

  THE COURT,
  composed as above,
  after deliberation,
  delivers the following Judgment :
   1. On 20 March 1993, the Government of the Republic of Bosnia and Herze-
govina (with effect from 14 December 1995 “Bosnia and Herzegovina”) filed in
the Registry of the Court an Application instituting proceedings against the
Federal Republic of Yugoslavia (with effect from 4 February 2003, “Serbia and
Montenegro” and with effect from 3 June 2006, the Republic of Serbia — see
paragraphs 67 and 79 below) in respect of a dispute concerning alleged viola-
tions of the Convention on the Prevention and Punishment of the Crime of
Genocide, adopted by the General Assembly of the United Nations on 9 Decem-
ber 1948 (hereinafter “the Genocide Convention” or “the Convention”), as well
as various matters which Bosnia and Herzegovina claimed were connected
therewith. The Application invoked Article IX of the Genocide Convention as
the basis of the jurisdiction of the Court.

   2. Pursuant to Article 40, paragraph 2, of the Statute of the Court, the
Application was immediately communicated to the Government of the Federal
Republic of Yugoslavia (hereinafter “the FRY”) by the Registrar ; and in
accordance with paragraph 3 of that Article, all States entitled to appear before
the Court were notified of the Application.
   3. In conformity with Article 43 of the Rules of Court, the Registrar
addressed the notification provided for in Article 63, paragraph 1, of the
Statute to all the States appearing on the list of the parties to the Genocide Con-
vention held by the Secretary-General of the United Nations as depositary.
The Registrar also sent to the Secretary-General the notification provided for
in Article 34, paragraph 3, of the Statute.
   4. On 20 March 1993, immediately after the filing of its Application, Bosnia

10

50          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

and Herzegovina submitted a request for the indication of provisional measures
pursuant to Article 73 of the Rules of Court. On 31 March 1993, Bosnia and
Herzegovina filed in the Registry, and invoked as an additional basis of juris-
diction, the text of a letter dated 8 June 1992, addressed jointly by the President
of the then Republic of Montenegro and the President of the then Republic of
Serbia to the President of the Arbitration Commission of the International
Conference for Peace in Yugoslavia. On 1 April 1993, the FRY submitted writ-
ten observations on Bosnia and Herzegovina’s request for provisional meas-
ures, in which it, in turn, recommended that the Court indicate provisional
measures to be applied to Bosnia and Herzegovina. By an Order dated
8 April 1993, the Court, after hearing the Parties, indicated certain provisional
measures with a view to the protection of rights under the Genocide Conven-
tion.
   5. By an Order dated 16 April 1993, the President of the Court fixed
15 October 1993 as the time-limit for the filing of the Memorial of Bosnia and
Herzegovina and 15 April 1994 as the time-limit for the filing of the Counter-
Memorial of the FRY.
   6. Since the Court included upon the Bench no judge of the nationality of
the Parties, each of them exercised its right under Article 31, paragraph 3, of
the Statute to choose a judge ad hoc to sit in the case : Bosnia and Herzegovina
chose Mr. Elihu Lauterpacht and the FRY chose Mr. Milenko Kreća.

  7. On 27 July 1993, Bosnia and Herzegovina submitted a new request for the
indication of provisional measures. By letters of 6 August and 10 August 1993,
the Agent of Bosnia and Herzegovina indicated that his Government wished to
invoke additional bases of jurisdiction in the case : the Treaty between the
Allied and Associated Powers and the Kingdom of the Serbs, Croats and
Slovenes on the Protection of Minorities, signed at Saint-Germain-en-Laye on
10 September 1919, and customary and conventional international laws of war
and international humanitarian law. By a letter of 13 August 1993, the Agent
of Bosnia and Herzegovina confirmed his Government’s intention also to rely
on the above-mentioned letter from the Presidents of Montenegro and Serbia
dated 8 June 1992 as an additional basis of jurisdiction (see paragraph 4).

  8. On 10 August 1993, the FRY also submitted a request for the indication
of provisional measures and on 10 August and 23 August 1993, it filed written
observations on Bosnia and Herzegovina’s new request. By an Order dated
13 September 1993, the Court, after hearing the Parties, reaffirmed the meas-
ures indicated in its Order of 8 April 1993 and stated that those measures
should be immediately and effectively implemented.

   9. By an Order dated 7 October 1993, the Vice-President of the Court, at the
request of Bosnia and Herzegovina, extended the time-limit for the filing of the
Memorial to 15 April 1994 and accordingly extended the time-limit for the fil-
ing of the Counter-Memorial to 15 April 1995. Bosnia and Herzegovina filed its
Memorial within the time-limit thus extended. By a letter dated 9 May 1994,
the Agent of the FRY submitted that the Memorial filed by Bosnia and Herzego-
vina failed to meet the requirements of Article 43 of the Statute and Articles 50
and 51 of the Rules of Court. By letter of 30 June 1994, the Registrar, acting on
the instructions of the Court, requested Bosnia and Herzegovina, pursuant to
Article 50, paragraph 2, of the Rules of Court, to file as annexes to its Memo-
rial the extracts of the documents to which it referred therein. Bosnia and

11

51          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Herzegovina accordingly filed Additional Annexes to its Memorial on 4 Janu-
ary 1995.
   10. By an Order dated 21 March 1995, the President of the Court, at the
request of the FRY, extended the time-limit for the filing of the Counter-
Memorial to 30 June 1995. Within the time-limit thus extended, the FRY, refer-
ring to Article 79, paragraph 1, of the Rules of Court of 14 April 1978, raised
preliminary objections concerning the Court’s jurisdiction to entertain the
case and to the admissibility of the Application. Accordingly, by an Order
of 14 July 1995, the President of the Court noted that, by virtue of Article 79,
paragraph 3, of the 1978 Rules of Court, the proceedings on the merits were
suspended, and fixed 14 November 1995 as the time-limit within which Bosnia
and Herzegovina might present a written statement of its observations and sub-
missions on the preliminary objections raised by the FRY. Bosnia and Herze-
govina filed such a statement within the time-limit thus fixed.

   11. By a letter dated 2 February 1996, the Agent of the FRY submitted to
the Court the text of the General Framework Agreement for Peace in Bosnia
and Herzegovina and the annexes thereto, initialled in Dayton, Ohio, on
21 November 1995, and signed in Paris on 14 December 1995 (hereinafter the
“Dayton Agreement”).
   12. Public hearings were held on preliminary objections between 29 April
and 3 May 1996. By a Judgment of 11 July 1996, the Court dismissed the
preliminary objections and found that it had jurisdiction to adjudicate on the
dispute on the basis of Article IX of the Genocide Convention and that the
Application was admissible.
   13. By an Order dated 23 July 1996, the President fixed 23 July 1997 as the
time-limit for the filing of the Counter-Memorial of the FRY. The Counter-
Memorial, which was filed on 22 July 1997, contained counter-claims. By a let-
ter dated 28 July 1997, Bosnia and Herzegovina, invoking Article 80 of the
1978 Rules of Court, challenged the admissibility of the counter-claims. On
22 September 1997, at a meeting held between the President of the Court and
the Agents of the Parties, the Agents accepted that their respective Govern-
ments submit written observations on the question of the admissibility of the
counter-claims. Bosnia and Herzegovina and the FRY submitted their obser-
vations to the Court on 10 October 1997 and 24 October 1997, respectively. By
an Order dated 17 December 1997, the Court found that the counter-claims
submitted by the FRY were admissible as such and formed part of the current
proceedings since they fulfilled the conditions set out in Article 80, para-
graphs 1 and 2, of the 1978 Rules of Court. The Court further directed Bosnia
and Herzegovina to submit a Reply and the FRY to submit a Rejoinder relat-
ing to the claims of both Parties and fixed 23 January 1998 and 23 July 1998 as
the respective time-limits for the filing of those pleadings. The Court also
reserved the right of Bosnia and Herzegovina to present its views on the
counter-claims of the FRY in an additional pleading.

   14. By an Order dated 22 January 1998, the President, at the request of
Bosnia and Herzegovina, extended the time-limit for the filing of the Reply of
Bosnia and Herzegovina to 23 April 1998 and accordingly extended the time-
limit for the filing of the Rejoinder of the FRY to 22 January 1999.

  15. On 15 April 1998, the Co-Agent of the FRY filed “Additional Annexes

12

52          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

to the Counter-Memorial of the Federal Republic of Yugoslavia”. By a letter
dated 14 May 1998, the Deputy Agent of Bosnia and Herzegovina, referring to
Articles 50 and 52 of the Rules of Court, objected to the admissibility of these
documents in view of their late filing. On 22 September 1998, the Parties were
informed that the Court had decided that the documents in question “[were]
admissible as Annexes to the Counter-Memorial to the extent that they were
established, in the original language, on or before the date fixed by the Order of
23 July 1996 for the filing of the Counter-Memorial” and that “[a]ny such
document established after that date [would] have to be submitted as an Annex
to the Rejoinder, if Yugoslavia so wishe[d]”.
   16. On 23 April 1998, within the time-limit thus extended, Bosnia and
Herzegovina filed its Reply. By a letter dated 27 November 1998, the FRY
requested the Court to extend the time-limit for the filing of its Rejoinder to
22 April 1999. By a letter dated 9 December 1998, Bosnia and Herzegovina
objected to any extension of the time-limit fixed for the filing of the Rejoinder.
By an Order of 11 December 1998, the Court, having regard to the fact that
Bosnia and Herzegovina had been granted an extension of the time-limit for
the filing of its Reply, extended the time-limit for the filing of the Rejoinder of
the FRY to 22 February 1999. The FRY filed its Rejoinder within the time-
limit thus extended.
   17. On 19 April 1999, the President of the Court held a meeting with the
representatives of the Parties in order to ascertain their views with regard to
questions of procedure. Bosnia and Herzegovina indicated that it did not
intend to file an additional pleading concerning the counter-claims made by the
FRY and considered the case ready for oral proceedings. The Parties also
expressed their views about the organization of the oral proceedings.
   18. By a letter dated 9 June 1999, the then Chairman of the Presidency of
Bosnia and Herzegovina, Mr. Zivko Radisić, informed the Court of the appoint-
ment of a Co-Agent, Mr. Svetozar Miletić. By a letter dated 10 June 1999, the
thus appointed Co-Agent informed the Court that Bosnia and Herzegovina
wished to discontinue the case. By a letter of 14 June 1999, the Agent of Bosnia
and Herzegovina asserted that the Presidency of Bosnia and Herzegovina had
taken no action to appoint a Co-Agent or to terminate the proceedings before
the Court. By a letter of 15 June 1999, the Agent of the FRY stated that his
Government accepted the discontinuance of the proceedings. By a letter of
21 June 1999, the Agent of Bosnia and Herzegovina reiterated that the Presi-
dency had not made any decision to discontinue the proceedings and transmit-
ted to the Court letters from two members of the Presidency, including the new
Chairman of the Presidency, confirming that no such decision had been made.
   19. By letters dated 30 June 1999 and 2 September 1999, the President of the
Court requested the Chairman of the Presidency to clarify the position of
Bosnia and Herzegovina regarding the pendency of the case. By a letter dated
3 September 1999, the Agent of the FRY submitted certain observations on
this matter, concluding that there was an agreement between the Parties to dis-
continue the case. By a letter dated 15 September 1999, the Chairman of the
Presidency of Bosnia and Herzegovina informed the Court that at its 58th ses-
sion held on 8 September 1999, the Presidency had concluded that : (i) the
Presidency “did not make a decision to discontinue legal proceedings before the
International Court of Justice” ; (ii) the Presidency “did not make a decision to
name a Co-Agent in this case” ; (iii) the Presidency would “inform [the Court]
timely about any further decisions concerning this case”.
   20. By a letter of 20 September 1999, the President of the Court informed

13

53          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

the Parties that the Court intended to schedule hearings in the case beginning in
the latter part of February 2000 and requested the Chairman of the Presidency
of Bosnia and Herzegovina to confirm that Bosnia and Herzegovina’s position
was that the case should so proceed. By a letter of 4 October 1999, the Agent of
Bosnia and Herzegovina confirmed that the position of his Government was
that the case should proceed and he requested the Court to set a date for the
beginning of the oral proceedings as soon as possible. By a letter dated
10 October 1999, the member of the Presidency of Bosnia and Herzegovina
from the Republika Srpska informed the Court that the letter of 15 Septem-
ber 1999 from the Chairman of the Presidency was “without legal effects”
inter alia because the National Assembly of the Republika Srpska, acting pur-
suant to the Constitution of Bosnia and Herzegovina, had declared the decision
of 15 September “destructive of a vital interest” of the Republika Srpska. On
22 October 1999, the President informed the Parties that, having regard to the
correspondence received on this matter, the Court had decided not to hold
hearings in the case in February 2000.
   21. By a letter dated 23 March 2000 transmitting to the Court a letter dated
20 March 2000 from the Chairman of the Presidency, the Agent of Bosnia and
Herzegovina reaffirmed that the appointment of a Co-Agent by the former
Chairman of the Presidency of Bosnia and Herzegovina on 9 June 1999 lacked
any legal basis and that the communications of the Co-Agent did not reflect the
position of Bosnia and Herzegovina. Further, the Agent asserted that, contrary
to the claims of the member of the Presidency of Bosnia and Herzegovina from
the Republic of Srpska, the letter of 15 September 1999 was not subject to the
veto mechanism contained in the Constitution of Bosnia and Herzegovina. The
Agent requested the Court to set a date for oral proceedings at its earliest con-
venience.
   22. By a letter dated 13 April 2000, the Agent of the FRY transmitted to the
Court a document entitled “Application for the Interpretation of the Decision
of the Court on the Pendency of the case concerning Application of the Con-
vention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia)”, requesting an interpretation of the decision
of the Court to which the President of the Court had referred in his letter dated
22 October 1999. By a letter dated 18 April 2000, the Registrar informed the
Agent of the FRY that, according to Article 60 of the Statute, a request for
interpretation could relate only to a judgment of the Court and therefore the
document transmitted to the Court on 13 April 2000 could not constitute a
request for interpretation and had not been entered on the Court’s General
List. The Registrar further explained that the sole decision to which reference
was made in the letter of 22 October 1999 was that no hearings would be held
in February 2000. The Registrar requested the Agent to transmit as soon as
possible any comments he might have on the letter dated 23 March 2000 from
the Agent of Bosnia and Herzegovina and the letter from the Chairman of the
Presidency enclosed therewith. By a letter dated 25 April 2000, the Agent of the
FRY submitted such comments to the Court and requested that the Court
record and implement the agreement for the discontinuance of the case evi-
denced by the exchange of the letter of the Co-Agent of the Applicant dated
10 June 1999 and the letter of the Agent of the FRY dated 15 June 1999. By a
letter dated 8 May 2000, the Agent of Bosnia and Herzegovina submitted cer-
tain observations regarding the letter dated 25 April 2000 from the Agent of the
FRY and reiterated the wish of his Government to continue with the proceed-
ings in the case. By letters dated 8 June, 26 June and 4 October 2000 from the

14

54          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

FRY and letters dated 9 June and 21 September 2000 from Bosnia and Herze-
govina, the Agents of the Parties restated their positions.
   23. By a letter dated 29 September 2000, Mr. Svetozar Miletić, who had pur-
portedly been appointed Co-Agent on 9 June 1999 by the then Chairman of the
Presidency of Bosnia and Herzegovina, reiterated his position that the case had
been discontinued. By a letter dated 6 October 2000, the Agent of Bosnia and
Herzegovina stated that this letter and the recent communication from the
Agent of the FRY had not altered the commitment of the Government of
Bosnia and Herzegovina to continue the proceedings.
   24. By letters dated 16 October 2000 from the President of the Court and
from the Registrar, the Parties were informed that, at its meeting of 10 Octo-
ber 2000, the Court, having examined all the correspondence received on this
question, had found that Bosnia and Herzegovina had not demonstrated its
will to withdraw the Application in an unequivocal manner. The Court had
thus concluded that there had been no discontinuance of the case by Bosnia
and Herzegovina. Consequently, in accordance with Article 54 of the Rules, the
Court, after having consulted the Parties, would, at an appropriate time, fix a
date for the opening of the oral proceedings.
   25. By a letter dated 18 January 2001, the Minister for Foreign Affairs of the
FRY requested the Court to grant a stay of the proceedings or alternatively to
postpone the opening of the oral proceedings for a period of 12 months due,
inter alia, to the change of Government of the FRY and the resulting funda-
mental change in the policies and international position of that State. By a let-
ter dated 25 January 2001, the Agent of Bosnia and Herzegovina communi-
cated the views of his Government on the request made by the FRY and
reserved his Government’s final judgment on the matter, indicating that, in the
intervening period, Bosnia and Herzegovina’s position continued to be that
there should be an expedited resolution of the case.
   26. By a letter dated 20 April 2001, the Agent of the FRY informed the
Court that his Government wished to withdraw the counter-claims submitted
by the FRY in its Counter-Memorial. The Agent also informed the Court that
his Government was of the opinion that the Court did not have jurisdiction
ratione personae over the FRY and further that the FRY intended to submit an
application for revision of the Judgment of 11 July 1996. On 24 April 2001, the
FRY filed in the Registry of the Court an Application instituting proceedings
whereby, referring to Article 61 of the Statute, it requested the Court to revise
the Judgment delivered on Preliminary Objections on 11 July 1996 (Application
for Revision of the Judgment of 11 July 1996 in the Case concerning Applica-
tion of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections
(Yugoslavia v. Bosnia and Herzegovina), hereinafter referred to as “the Appli-
cation for Revision case”). In the present case the Agent of the FRY submitted,
under cover of a letter dated 4 May 2001, a document entitled “Initiative to the
Court to Reconsider ex officio Jurisdiction over Yugoslavia”, accompanied by
one volume of annexes (hereinafter “the Initiative”). The Agent informed the
Court that the Initiative was based on facts and arguments which were essen-
tially identical to those submitted in the FRY’s Application for revision of the
Judgment of 11 July 1996 since his Government believed that these were both
appropriate procedural avenues. In the Initiative, the FRY requested the Court
to adjudge and declare that it had no jurisdiction ratione personae over the
FRY, contending that it had not been a party to the Statute of the Court until
its admission to the United Nations on 1 November 2000, that it had not been

15

55          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

and still was not a party to the Genocide Convention ; it added moreover that
its notification of accession to that Convention dated 8 March 2001 contained
a reservation to Article IX thereof. The FRY asked the Court to suspend the
proceedings on the merits until a decision was rendered on the Initiative.
   27. By a letter dated 12 July 2001 and received in the Registry on
15 August 2001, Bosnia and Herzegovina informed the Court that it had no
objection to the withdrawal of the counter-claims by the FRY and stated that
it intended to submit observations regarding the Initiative. By an Order dated
10 September 2001, the President of the Court placed on record the withdrawal
by the FRY of the counter-claims submitted in its Counter-Memorial.

   28. By a letter dated 3 December 2001, Bosnia and Herzegovina provided
the Court with its views regarding the Initiative and transmitted a memoran-
dum on “differences between the Application for Revision of 23 April 2001 and
the ‘Initiative’ of 4 May 2001” as well as a copy of the written observations and
annexes filed by Bosnia and Herzegovina on 3 December 2001 in the Applica-
tion for Revision case. In that letter, Bosnia and Herzegovina submitted that
“there [was] no basis in fact nor in law to honour this so-called ‘Initiative’ ”
and requested the Court inter alia to “respond in the negative to the request
embodied in the ‘Initiative’ ”.
   29. By a letter dated 22 February 2002 to the President of the Court, Judge
ad hoc Lauterpacht resigned from the case.

   30. Under cover of a letter of 18 April 2002, the Registrar, referring to
Article 34, paragraph 3, of the Statute, transmitted copies of the written pro-
ceedings to the Secretary-General of the United Nations.
   31. In its Judgment of 3 February 2003 in the Application for Revision case,
the Court found that the FRY’s Application for revision, under Article 61 of
the Statute of the Court, of the Judgment of 11 July 1996 on preliminary objec-
tions was inadmissible.
   32. By a letter dated 5 February 2003, the FRY informed the Court that,
following the adoption and promulgation of the Constitutional Charter of
Serbia and Montenegro by the Assembly of the FRY on 4 February 2003,
the name of the State had been changed from the “Federal Republic of Yugo-
slavia” to “Serbia and Montenegro”. The title of the case was duly changed
and the name “Serbia and Montenegro” was used thereafter for all official pur-
poses of the Court.
   33. By a letter of 17 February 2003, Bosnia and Herzegovina reaffirmed its
position with respect to the Initiative, as stated in the letter of 3 Decem-
ber 2001, and expressed its desire to proceed with the case. By a letter dated
8 April 2003, Serbia and Montenegro submitted that, due to major new devel-
opments since the filing of the last written pleading, additional written plead-
ings were necessary in order to make the oral proceedings more effective and
less time-consuming. On 24 April 2003, the President of the Court held a meet-
ing with the Agents of the Parties to discuss questions of procedure. Serbia and
Montenegro stated that it maintained its request for the Court to rule on its
Initiative while Bosnia and Herzegovina considered that there was no need for
additional written pleadings. The possible dates and duration of the oral pro-
ceedings were also discussed.

 34. By a letter dated 25 April 2003, Bosnia and Herzegovina chose
Mr. Ahmed Mahiou to sit as judge ad hoc in the case.

16

56          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

   35. By a letter of 12 June 2003, the Registrar informed Serbia and Montene-
gro that the Court could not accede to its request that the proceedings be sus-
pended until a decision was rendered on the jurisdictional issues raised in the
Initiative ; however, should it wish to do so, Serbia and Montenegro would be
free to present further argument on jurisdictional questions during the oral pro-
ceedings on the merits. In further letters of the same date, the Parties were
informed that the Court, having considered Serbia and Montenegro’s request,
had decided not to authorize the filing of further written pleadings in the case.

  36. In an exchange of letters in October and November 2003, the Agents of
the Parties made submissions as to the scheduling of the oral proceedings.

   37. Following a further exchange of letters between the Parties in March
and April 2004, the President held a meeting with the Agents of the Parties on
25 June 2004, at which the Parties presented their views on, inter alia, the
scheduling of the hearings and the calling of witnesses and experts.
   38. By letters dated 26 October 2004, the Parties were informed that, after
examining the list of cases before it ready for hearing and considering all the
relevant circumstances, the Court had decided to fix Monday 27 February 2006
for the opening of the oral proceedings in the case.
   39. On 14 March 2005, the President met with the Agents of the Parties in
order to ascertain their views with regard to the organization of the oral pro-
ceedings. At this meeting, both Parties indicated that they intended to call wit-
nesses and experts.
   40. By letters dated 19 March 2005, the Registrar, referring to Articles 57
and 58 of the Rules of Court, requested the Parties to provide, by 9 Septem-
ber 2005, details of the witnesses, experts and witness-experts whom they
intended to call and indications of the specific point or points to which the evi-
dence of the witness, expert or witness-expert would be directed. By a letter of
8 September 2005, the Agent of Serbia and Montenegro transmitted to the
Court a list of eight witnesses and two witness-experts whom his Government
wished to call during the oral proceedings. By a further letter of the same date,
the Agent of Serbia and Montenegro communicated a list of five witnesses
whose attendance his Government requested the Court to arrange pursuant to
Article 62, paragraph 2, of the Rules of Court. By a letter dated 9 Septem-
ber 2005, Bosnia and Herzegovina transmitted to the Court a list of three
experts whom it wished to call at the hearings.
   41. By a letter dated 5 October 2005, the Deputy Agent of Bosnia and
Herzegovina informed the Registry of Bosnia and Herzegovina’s views with
regard to the time that it considered necessary for the hearing of the experts it
wished to call and made certain submissions, inter alia, with respect to the
request made by Serbia and Montenegro pursuant to Article 62, paragraph 2,
of the Rules of Court. By letters of 4 and 11 October 2005, the Agent and the
Co-Agent of Serbia and Montenegro, respectively, informed the Registry of the
views of their Government with respect to the time necessary for the hearing of
the witnesses and witness-experts whom it wished to call.

   42. By letters of 15 November 2005, the Registrar informed the Parties,
inter alia, that the Court had decided that it would hear the three experts and
ten witnesses and witness-experts that Bosnia and Herzegovina and Serbia and
Montenegro respectively wished to call and, moreover, that it had decided not
to arrange for the attendance, pursuant to Article 62, paragraph 2, of the Rules

17

57          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

of Court, of the five witnesses proposed by Serbia and Montenegro. However,
the Court reserved the right to exercise subsequently, if necessary, its powers
under that provision to call persons of its choosing on its own initiative. The
Registrar also requested the Parties to provide certain information related to
the hearing of the witnesses, experts and witness-experts including, inter alia,
the language in which each witness, expert or witness-expert would speak and,
in respect of those speaking in a language other than English or French, the
arrangements which the Party intended to make, pursuant to Article 70, para-
graph 2, of the Rules of Court, for interpretation into one of the official lan-
guages of the Court. Finally the Registrar transmitted to the Parties the calen-
dar for the oral proceedings as adopted by the Court.
  43. By a letter dated 12 December 2005, the Agent of Serbia and Montene-
gro informed the Court, inter alia, that eight of the ten witnesses and witness-
experts it wished to call would speak in Serbian and outlined the arrangements
that Serbia and Montenegro would make for interpretation from Serbian to
one of the official languages of the Court. By a letter dated 15 December 2005,
the Deputy Agent of Bosnia and Herzegovina informed the Court, inter alia,
that the three experts called by Bosnia and Herzegovina would speak in one of
the official languages of the Court.

   44. By a letter dated 28 December 2005, the Deputy Agent of Bosnia and
Herzegovina, on behalf of the Government, requested that the Court call upon
Serbia and Montenegro, under Article 49 of the Statute and Article 62, para-
graph 1, of the Rules of Court, to produce a certain number of documents. By
a letter dated 16 January 2006, the Agent of Serbia and Montenegro informed
the Court of his Government’s views on this request. By a letter dated 19 Janu-
ary 2006, the Registrar, acting on the instructions of the Court, asked Bosnia
and Herzegovina to provide certain further information relating to its request
under Article 49 of the Statute and Article 62, paragraph 2, of the Rules of
Court. By letters dated 19 and 24 January 2006, the Deputy Agent of Bosnia
and Herzegovina submitted additional information and informed the Court
that Bosnia and Herzegovina had decided, for the time being, to restrict its
request to the redacted sections of certain documents. By a letter dated 31 Janu-
ary 2006, the Co-Agent of Serbia and Montenegro communicated his Govern-
ment’s views regarding this modified request. By letters dated 2 February 2006,
the Registrar informed the Parties that the Court had decided, at this stage of
the proceedings, not to call upon Serbia and Montenegro to produce the docu-
ments in question. However, the Court reserved the right to exercise subse-
quently, if necessary, its powers under Article 49 of the Statute and Article 62,
paragraph 1, of the Rules of Court, to request, proprio motu, the production by
Serbia and Montenegro of the documents in question.

  45. By a letter dated 16 January 2006, the Deputy Agent of Bosnia and
Herzegovina transmitted to the Registry copies of new documents that Bosnia
and Herzegovina wished to produce pursuant to Article 56 of the Rules of
Court. Under cover of the same letter and of a letter dated 23 January 2006, the
Deputy Agent of Bosnia and Herzegovina also transmitted to the Registry
copies of video material, extracts of which Bosnia and Herzegovina intended
to present at the oral proceedings. By a letter dated 31 January 2006, the Co-
Agent of Serbia and Montenegro informed the Court that his Government did
not object to the production of the new documents by Bosnia and Herzegovina.
Nor did it object to the video material being shown at the oral proceedings. By

18

58          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

letters of 2 February 2006, the Registrar informed the Parties that, in view of
the fact that no objections had been raised by Serbia and Montenegro, the
Court had decided to authorize the production of the new documents by Bos-
nia and Herzegovina pursuant to Article 56 of the Rules of Court and that it
had further decided that Bosnia and Herzegovina could show extracts of the
video material at the hearings.
   46. Under cover of a letter dated 18 January 2006 and received on 20 Janu-
ary 2006, the Agent of Serbia and Montenegro provided the Registry with
copies of new documents which his Government wished to produce pursuant
to Article 56 of the Rules of Court. By a letter of 1 February 2006, the Deputy
Agent of Bosnia and Herzegovina informed the Court that Bosnia and Herze-
govina did not object to the production of the said documents by Serbia and
Montenegro. By a letter dated 2 February 2006, the Registrar informed the
Parties that, in view of the fact that no objection had been raised by Bosnia and
Herzegovina, the Court had decided to authorize the production of the new
documents by Serbia and Montenegro. By a letter dated 9 February 2006, the
Co-Agent of Serbia and Montenegro transmitted to the Court certain missing
elements of the new documents submitted on 20 January 2006 and made a
number of observations concerning the new documents produced by Bosnia
and Herzegovina. By a letter dated 20 February 2006, the Deputy Agent of
Bosnia and Herzegovina informed the Court that Bosnia and Herzegovina did
not intend to make any observations regarding the new documents produced
by Serbia and Montenegro.
   47. Under cover of a letter dated 31 January 2006, the Co-Agent of Serbia
and Montenegro transmitted to the Court a list of public documents that his
Government would refer to in its first round of oral argument. By a further
letter dated 14 February 2006, the Co-Agent of Serbia and Montenegro trans-
mitted to the Court copies of folders containing the public documents referred
to in the list submitted on 31 January 2006 and informed the Court that Serbia
and Montenegro had decided not to submit the video materials included in that
list. By a letter dated 20 February 2006, the Deputy Agent of Bosnia and
Herzegovina informed the Court that Bosnia and Herzegovina had no obser-
vations to make regarding the list of public documents submitted by Serbia and
Montenegro on 31 January 2006. He also stated that Bosnia and Herzegovina
would refer to similar sources during its pleadings and was planning to provide
the Court and the Respondent, at the end of the first round of its oral argu-
ment, with a CD-ROM containing materials it had quoted (see below,
paragraph 54).

   48. By a letter dated 26 January 2006, the Registrar informed the Parties of
certain decisions taken by the Court with regard to the hearing of the witnesses,
experts and witness-experts called by the Parties including, inter alia, that,
exceptionally, the verbatim records of the sittings at which the witnesses,
experts and witness-experts were heard would not be made available to the
public or posted on the website of the Court until the end of the oral proceed-
ings.
   49. By a letter dated 13 February 2006, the Agent of Serbia and Montenegro
informed the Court that his Government had decided not to call two of the
witnesses and witness-experts included in the list transmitted to the Court on
8 September 2005 and that the order in which the remaining witnesses and
witness-expert would be heard had been modified. By a letter dated 21 Feb-
ruary 2006, the Agent of Serbia and Montenegro requested the Court’s per-

19

59          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

mission for the examination of three of the witnesses called by his Govern-
ment to be conducted in Serbian (namely, Mr. Dušan Mihajlović,
Mr. Vladimir Milićević, Mr. Dragoljub Mićunović). By a letter dated 22 Feb-
ruary 2006, the Registrar informed the Agent of Serbia and Montenegro that
there was no objection to such a procedure being followed, pursuant to the pro-
visions of Article 39, paragraph 3, of the Statute and Article 70 of the Rules of
Court.
   50. Pursuant to Article 53, paragraph 2, of the Rules, the Court, after ascer-
taining the views of the Parties, decided that copies of the pleadings and docu-
ments annexed would be made available to the public at the opening of the oral
proceedings.
   51. Public sittings were held from 27 February to 9 May 2006, at which the
Court heard the oral arguments and replies of :
For Bosnia and Herzegovina :     Mr. Sakib Softić,
                                 Mr. Phon van den Biesen,
                                 Mr. Alain Pellet,
                                 Mr. Thomas M. Franck,
                                 Ms Brigitte Stern,
                                 Mr. Luigi Condorelli,
                                 Ms Magda Karagiannakis,
                                 Ms Joanna Korner,
                                 Ms Laura Dauban,
                                 Mr. Antoine Ollivier,
                                 Mr. Morten Torkildsen.
For Serbia and Montenegro :      H.E. Mr. Radoslav Stojanović,
                                 Mr. Saša Obradović,
                                 Mr. Vladimir Cvetković,
                                 Mr. Tibor Varady,
                                 Mr. Ian Brownlie,
                                 Mr. Xavier de Roux,
                                 Ms Nataša Fauveau-Ivanović,
                                 Mr. Andreas Zimmerman,
                                 Mr. Vladimir Djerić,
                                 Mr. Igor Olujić.
   52. On 1 March 2006, the Registrar, on the instructions of the Court,
requested Bosnia and Herzegovina to specify the precise origin of each of the
extracts of video material and of the graphics, charts and photographs shown
or to be shown at the oral proceedings. On 2 March 2006 Bosnia and Herze-
govina provided the Court with certain information regarding the extracts of
video material shown at the sitting on 1 March 2006 and those to be shown at
the sittings on 2 March 2006 including the source of such video material. Under
cover of a letter dated 5 March 2006, the Agent of Bosnia and Herzegovina
transmitted to the Court a list detailing the origin of the extracts of video
material, graphics, charts and photographs shown or to be shown by it
during its first round of oral argument, as well as transcripts, in English and in
French, of the above-mentioned extracts of video material.
   53. By a letter dated 5 March 2006, the Agent of Bosnia and Herzegovina
informed the Court that it wished to withdraw one of the experts it had
intended to call. In that letter, the Agent of Bosnia and Herzegovina also asked
the Court to request each of the Parties to provide a one-page outline per wit-

20

60          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

ness, expert or witness-expert detailing the topics which would be covered in his
evidence or statement. By letters dated 7 March 2006, the Parties were informed
that the Court requested them to provide, at least three days before the hearing
of each witness, expert or witness-expert, a one-page summary of the latter’s
evidence or statement.

   54. On 7 March 2006, Bosnia and Herzegovina provided the Court and the
Respondent with a CD-ROM containing “ICTY Public Exhibits and other
Documents cited by Bosnia and Herzegovina during its Oral Pleadings (07/03/
2006)”. By a letter dated 10 March 2006, Serbia and Montenegro informed the
Court that it objected to the production of the CD-ROM on the grounds that
the submission at such a late stage of so many documents “raise[d] serious con-
cerns related to the respect for the Rules of Court and the principles of fairness
and equality of the parties”. It also pointed out that the documents included on
the CD-ROM “appear[ed] questionable from the point of [view of] Article 56,
paragraph 4, of the Rules [of Court]”. By a letter dated 13 March 2006, the
Agent of Bosnia and Herzegovina informed the Court of his Government’s
views regarding the above-mentioned objections raised by Serbia and Montene-
gro. In that letter, the Agent submitted, inter alia, that all the documents on the
CD-ROM had been referred to by Bosnia and Herzegovina in its oral argu-
ment and were documents which were in the public domain and were readily
available within the terms of Article 56, paragraph 4, of the Rules of Court.
The Agent added that Bosnia and Herzegovina was prepared to withdraw the
CD-ROM if the Court found it advisable. By a letter of 14 March 2006, the
Registrar informed Bosnia and Herzegovina that, given that Article 56, para-
graph 4, of the Rules of Court did not require or authorize the submission to
the Court of the full text of a document to which reference was made during the
oral proceedings pursuant to that provision and since it was difficult for the
other Party and the Court to come to terms, at the late stage of the proceed-
ings, with such an immense mass of documents, which in any case were in the
public domain and could thus be consulted if necessary, the Court had decided
that it was in the interests of the good administration of justice that the CD-
ROM be withdrawn. By a letter dated 16 March 2006, the Agent of Bosnia and
Herzegovina withdrew the CD-ROM which it had submitted on 7 March 2006.
   55. On 17 March 2006, Bosnia and Herzegovina submitted a map for use
during the statement to be made by one of its experts on the morning of
20 March 2006. On 20 March 2006, Bosnia and Herzegovina produced a folder
of further documents to be used in the examination of that expert. Serbia and
Montenegro objected strongly to the production of the documents at such a
late stage since its counsel would not have time to prepare for cross-examina-
tion. On 20 March 2006, the Court decided that the map submitted on
17 March 2006 could not be used during the statement of the expert. Moreover,
having consulted both Parties, the Court decided to cancel the morning sitting
and instead hear the expert during an afternoon sitting in order to allow Serbia
and Montenegro to be ready for cross-examination.

  56. On 20 March 2006, Serbia and Montenegro informed the Court that one
of the witnesses it had intended to call finally would not be giving evidence.

   57. The following experts were called by Bosnia and Herzegovina and made
their statements at public sittings on 17 and 20 March 2006 : Mr. András
J. Riedlmayer and General Sir Richard Dannatt. The experts were examined by

21

61          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

counsel for Bosnia and Herzegovina and cross-examined by counsel for Serbia
and Montenegro. The experts were subsequently re-examined by counsel for
Bosnia and Herzegovina. Questions were put to Mr. Riedlmayer by Judges
Kreća, Tomka, Simma and the Vice-President and replies were given orally.
Questions were put to General Dannatt by the President, Judge Koroma and
Judge Tomka and replies were given orally.

   58. The following witnesses and witness-expert were called by Serbia and
Montenegro and gave evidence at public sittings on 23, 24, 27 and 28 March
2006 : Mr. Vladimir Lukić ; Mr. Vitomir Popović ; General Sir Michael Rose ;
Mr. Jean-Paul Sardon (witness-expert) ; Mr. Dušan Mihajlović ; Mr. Vladimir
Milićević ; Mr. Dragoljub Mićunović. The witnesses and witness-expert were
examined by counsel for Serbia and Montenegro and cross-examined by
counsel for Bosnia and Herzegovina. General Rose, Mr. Mihajlović and
Mr. Milićević were subsequently re-examined by counsel for Serbia and
Montenegro. Questions were put to Mr. Lukić by Judges Ranjeva, Simma,
Tomka and Bennouna and replies were given orally. Questions were put to
General Rose by the Vice-President and Judges Owada and Simma and replies
were given orally.
   59. With the exception of General Rose and Mr. Jean-Paul Sardon, the
above-mentioned witnesses called by Serbia and Montenegro gave their evi-
dence in Serbian and, in accordance with Article 39, paragraph 3, of the Statute
and Article 70, paragraph 2, of the Rules of Court, Serbia and Montenegro
made the necessary arrangements for interpretation into one of the official lan-
guages of the Court and the Registry verified this interpretation. Mr. Sto-
janović conducted his examination of Mr. Dragoljub Mićunović in Serbian in
accordance with the exchange of correspondence between Serbia and Monte-
negro and the Court on 21 and 22 February 2006 (see paragraph 49 above).
   60. In the course of the hearings, questions were put by Members of the
Court, to which replies were given orally and in writing, pursuant to Article 61,
paragraph 4, of the Rules of Court.
   61. By a letter of 8 May 2006, the Agent of Bosnia and Herzegovina
requested the Court to allow the Deputy Agent to take the floor briefly on
9 May 2006, in order to correct an assertion about one of the counsel of and
one of the experts called by Bosnia and Herzegovina which had been made by
Serbia and Montenegro in its oral argument. By a letter dated 9 May 2006, the
Agent of Serbia and Montenegro communicated the views of his Government
on that matter. On 9 May 2006, the Court decided, in the particular cir-
cumstances of the case, to authorize the Deputy Agent of Bosnia and Herze-
govina to make a very brief statement regarding the assertion made about its
counsel.
   62. By a letter dated 3 May 2006, the Agent of Bosnia and Herzegovina
informed the Court that there had been a number of errors in references
included in its oral argument presented on 2 March 2006 and provided the
Court with the corrected references. By a letter dated 8 May 2006, the Agent of
Serbia and Montenegro, “in light of the belated corrections by the Applicant,
and for the sake of the equality between the parties”, requested the Court to
accept a paragraph of its draft oral argument of 2 May 2006 which responded
to one of the corrections made by Bosnia and Herzegovina but had been left
out of the final version of its oral argument “in order to fit the schedule of [Ser-
bia and Montenegro’s] presentations”. By a letter dated 7 June 2006, the
Parties were informed that the Court had taken due note of both the explana-

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62           APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

tion given by the Agent of Bosnia and Herzegovina and the observations made
in response by the Agent of Serbia and Montenegro.
   63. In January 2007, Judge Parra-Aranguren, who had attended the oral
proceedings in the case, and had participated in part of the deliberation, but
had for medical reasons been prevented from participating in the later stages
thereof, informed the President of the Court, pursuant to Article 24, para-
graph 1, of the Statute, that he considered that he should not take part in the
decision of the case. The President took the view that the Court should respect
and accept Judge Parra-Aranguren’s position, and so informed the Court.

                                          *
 64. In its Application, the following requests were made by Bosnia and
Herzegovina :
       “Accordingly, while reserving the right to revise, supplement or amend
     this Application, and subject to the presentation to the Court of the rele-
     vant evidence and legal arguments, Bosnia and Herzegovina requests the
     Court to adjudge and declare as follows :
     (a) that Yugoslavia (Serbia and Montenegro) has breached, and is con-
         tinuing to breach, its legal obligations toward the People and State
         of Bosnia and Herzegovina under Articles I, II (a), II (b), II (c),
         II (d), III (a), III (b), III (c), III (d), III (e), IV and V of the
         Genocide Convention ;
     (b) that Yugoslavia (Serbia and Montenegro) has violated and is con-
         tinuing to violate its legal obligations toward the People and State of
         Bosnia and Herzegovina under the four Geneva Conventions of
         1949, their Additional Protocol I of 1977, the customary interna-
         tional laws of war including the Hague Regulations on Land War-
         fare of 1907, and other fundamental principles of international
         humanitarian law ;
     (c) that Yugoslavia (Serbia and Montenegro) has violated and continues
         to violate Articles 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18,
         19, 20, 21, 22, 23, 25, 26 and 28 of the Universal Declaration of
         Human Rights with respect to the citizens of Bosnia and Herzegovina ;
     (d) that Yugoslavia (Serbia and Montenegro), in breach of its obliga-
         tions under general and customary international law, has killed,
         murdered, wounded, raped, robbed, tortured, kidnapped, illegally
         detained, and exterminated the citizens of Bosnia and Herzegovina,
         and is continuing to do so ;
     (e) that in its treatment of the citizens of Bosnia and Herzegovina,
         Yugoslavia (Serbia and Montenegro) has violated, and is continuing
         to violate, its solemn obligations under Articles 1 (3), 55 and 56 of
         the United Nations Charter ;
     (f) that Yugoslavia (Serbia and Montenegro) has used and is continuing
         to use force and the threat of force against Bosnia and Herzegovina
         in violation of Articles 2 (1), 2 (2), 2 (3), 2 (4) and 33 (1), of the
         United Nations Charter ;
     (g) that Yugoslavia (Serbia and Montenegro), in breach of its obliga-
         tions under general and customary international law, has used and is
         using force and the threat of force against Bosnia and Herzegovina ;

23

63          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

     (h) that Yugoslavia (Serbia and Montenegro), in breach of its obli-
         gations under general and customary international law, has vio-
         lated and is violating the sovereignty of Bosnia and Herzegovina
         by :
           — armed attacks against Bosnia and Herzegovina by air and land ;

           — aerial trespass into Bosnian airspace ;
           — efforts by direct and indirect means to coerce and intimidate the
             Government of Bosnia and Herzegovina ;
     (i)   that Yugoslavia (Serbia and Montenegro), in breach of its obliga-
           tions under general and customary international law, has intervened
           and is intervening in the internal affairs of Bosnia and Herzegovina ;

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

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

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

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

     (o) that Security Council resolution 713 (1991) and all subsequent Secu-
         rity Council resolutions referring thereto or reaffirming thereof must
         not be construed to impose an arms embargo upon Bosnia and
         Herzegovina, as required by Articles 24 (1) and 51 of the United

24

64          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

         Nations Charter and in accordance with the customary doctrine of
         ultra vires ;
     (p) that pursuant to the right of collective self-defence recognized by
         United Nations Charter Article 51, all other States parties to the
         Charter have the right to come to the immediate defence of Bosnia
         and Herzegovina — at its request — including by means of imme-
         diately providing It with weapons, military equipment and supplies,
         and armed forces (soldiers, sailors, air-people, etc.) ;
     (q) that Yugoslavia (Serbia and Montenegro) and its agents and surro-
         gates are under an obligation to cease and desist immediately from
         its breaches of the foregoing legal obligations, and is under a par-
         ticular duty to cease and desist immediately :
           — from its systematic practice of so-called ‘ethnic cleansing’ of the
             citizens and sovereign territory of Bosnia and Herzegovina ;
           — from the murder, summary execution, torture, rape, kidnapping,
             mayhem, wounding, physical and mental abuse, and detention of
             the citizens of Bosnia and Herzegovina ;

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

           — from the bombardment of civilian population centres in Bosnia
             and Herzegovina, and especially its capital, Sarajevo ;
           — from continuing the siege of any civilian population centres in
             Bosnia and Herzegovina, and especially its capital, Sarajevo ;
           — from the starvation of the civilian population in Bosnia and
             Herzegovina ;
           — from the interruption of, interference with, or harassment of
             humanitarian relief supplies to the citizens of Bosnia and Herze-
             govina by the international community ;
           — from all use of force — whether direct or indirect, overt or
             covert — against Bosnia and Herzegovina, and from all threats
             of force against Bosnia and Herzegovina ;
           — from all violations of the sovereignty, territorial integrity or
             political independence of Bosnia and Herzegovina, including all
             intervention, direct or indirect, in the internal affairs of Bosnia
             and Herzegovina ;
           — from all support of any kind — including the provision of train-
             ing, arms, ammunition, finances, supplies, assistance, direction
             or any other form of support — to any nation, group, organiza-
             tion, movement or individual engaged or planning to engage in
             military or paramilitary actions in or against Bosnia and Herze-
             govina ;
     (r)   that Yugoslavia (Serbia and Montenegro) has an obligation to pay
           Bosnia and Herzegovina, in its own right and as parens patriae for
           its citizens, reparations for damages to persons and property as well
           as to the Bosnian economy and environment caused by the foregoing
           violations of international law in a sum to be determined by the
           Court. Bosnia and Herzegovina reserves the right to introduce to the
           Court a precise evaluation of the damages caused by Yugoslavia
           (Serbia and Montenegro).”

25

65          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  65. In the written proceedings, the following submissions were presented by
the Parties :
On behalf of the Government of Bosnia and Herzegovina,
in the Memorial :
      “On the basis of the evidence and legal arguments presented in this
     Memorial, the Republic of Bosnia and Herzegovina,
     Requests the International Court of Justice to adjudge and declare,
        1. That the Federal Republic of Yugoslavia (Serbia and Montenegro),
     directly, or through the use of its surrogates, has violated and is violating
     the Convention on the Prevention and Punishment of the Crime of Geno-
     cide, by destroying in part, and attempting to destroy in whole, national,
     ethnical or religious groups within the, but not limited to the, territory
     of the Republic of Bosnia and Herzegovina, including in particular the
     Muslim population, by
     — killing members of the group ;
     — causing deliberate bodily or mental harm to members of the group ;
         deliberately inflicting on the group conditions of life calculated to
         bring about its physical destruction in whole or in part ;
     — imposing measures intended to prevent births within the group ;

        2. That the Federal Republic of Yugoslavia (Serbia and Montenegro)
     has violated and is violating the Convention on the Prevention and Pun-
     ishment of the Crime of Genocide by conspiring to commit genocide, by
     complicity in genocide, by attempting to commit genocide and by incite-
     ment to commit genocide ;
        3. That the Federal Republic of Yugoslavia (Serbia and Montenegro)
     has violated and is violating the Convention on the Prevention and Pun-
     ishment of the Crime of Genocide by aiding and abetting individuals and
     groups engaged in acts of genocide ;
        4. That the Federal Republic of Yugoslavia (Serbia and Montenegro)
     has violated and is violating the Convention on the Prevention and Pun-
     ishment of the Crime of Genocide by virtue of having failed to prevent and
     to punish acts of genocide ;
        5. That the Federal Republic of Yugoslavia (Serbia and Montenegro)
     must immediately cease the above conduct and take immediate and effec-
     tive steps to ensure full compliance with its obligations under the Conven-
     tion on the Prevention and Punishment of the Crime of Genocide ;

        6. That the Federal Republic of Yugoslavia (Serbia and Montenegro)
     must wipe out the consequences of its international wrongful acts and
     must restore the situation existing before the violations of the Convention
     on the Prevention and Punishment of the Crime of Genocide were com-
     mitted ;
        7. That, as a result of the international responsibility incurred for the
     above violations of the Convention on the Prevention and Punishment of
     the Crime of Genocide, the Federal Republic of Yugoslavia (Serbia and
     Montenegro) is required to pay, and the Republic of Bosnia and Herze-
     govina is entitled to receive, in its own right and as parens patriae for its
     citizens, full compensation for the damages and losses caused, in the

26

66           APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

     amount to be determined by the Court in a subsequent phase of the pro-
     ceedings in this case.
        The Republic of Bosnia and Herzegovina reserves its right to supple-
     ment or amend its submissions in the light of further pleadings.
        The Republic of Bosnia and Herzegovina also respectfully draws the
     attention of the Court to the fact that it has not reiterated, at this point,
     several of the requests it made in its Application, on the formal assump-
     tion that the Federal Republic of Yugoslavia (Serbia and Montenegro) has
     accepted the jurisdiction of this Court under the terms of the Convention
     on the Prevention and Punishment of the Crime of Genocide. If the
     Respondent were to reconsider its acceptance of the jurisdiction of the
     Court under the terms of that Convention — which it is, in any event, not
     entitled to do — the Government of Bosnia and Herzegovina reserves its
     right to invoke also all or some of the other existing titles of jurisdiction
     and to revive all or some of its previous submissions and requests.”

On behalf of the Government of Serbia and Montenegro,
in the Counter-Memorial 1 :
       “The Federal Republic of Yugoslavia requests the International Court
     of Justice to adjudge and declare :
       1. In view of the fact that no obligations established by the 1948 Con-
     vention on the Prevention and Punishment of the Crime of Genocide have
     been violated with regard to Muslims and Croats,
     — since the acts alleged by the Applicant have not been committed at all,
        or not to the extent and in the way alleged by the Applicant, or

     — if some have been committed, there was absolutely no intention of
        committing genocide, and/or
     — they have not been directed specifically against the members of one
        ethnic or religious group, i.e. they have not been committed against
        individuals just because they belong to some ethnic or religious group,
        consequently, they cannot be qualified as acts of genocide or other acts
        prohibited by the 1948 Convention on the Prevention and Punishment
        of the Crime of Genocide ; and/or
       2. In view of the fact that the acts alleged by the Applicant in its sub-
     missions cannot be attributed to the Federal Republic of Yugoslavia,
     — since they have not been committed by the organs of the Federal
        Republic of Yugoslavia,
     — since they have not been committed on the territory of the Federal
        Republic of Yugoslavia,
     — since they have not been committed by the order or under control of
        the organs of the Federal Republic of Yugoslavia,
     — since there is no other grounds based on the rules of international law
        to consider them as acts of the Federal Republic of Yugoslavia,

  1 Submissions 3 to 6 relate to counter-claims which were subsequently withdrawn (see

paragraphs 26 and 27 above).

27

67          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

     therefore the Court rejects all claims of the Applicant ; and

       3. Bosnia and Herzegovina is responsible for the acts of genocide
     committed against the Serbs in Bosnia and Herzegovina and for other
     violations of the obligations established by the 1948 Convention on the
     Prevention and Punishment of the Crime of Genocide,
     — because it has incited acts of genocide by the ‘Islamic Declaration’, and
         in particular by the position contained in it that ‘there can be no peace
         or coexistence between “Islamic faith” and “non-Islamic” social and
         political institutions’,
     — because it has incited acts of genocide by the Novi Vox, paper of the
         Muslim youth, and in particular by the verses of a ‘Patriotic Song’
         which read as follows :
         ‘Dear mother, I’m going to plant willows,
         We’ll hang Serbs from them.
         Dear mother, I’m going to sharpen knives,
         We’ll soon fill pits again’ ;
     — because it has incited acts of genocide by the paper Zmaj od Bosne,
         and in particular by the sentence in an article published in it that ‘Each
         Muslim must name a Serb and take oath to kill him’ ;

     — because public calls for the execution of Serbs were broadcast on radio
       ‘Hajat’ and thereby acts of genocide were incited ;

     — because the armed forces of Bosnia and Herzegovina, as well as other
         organs of Bosnia and Herzegovina have committed acts of genocide
         and other acts prohibited by the 1948 Convention on the Prevention
         and Punishment of the Crime of Genocide, against the Serbs in Bosnia
         and Herzegovina, which have been stated in Chapter Seven of the
         Counter-Memorial ;
     — because Bosnia and Herzegovina has not prevented the acts of geno-
         cide and other acts prohibited by the 1948 Convention on the Preven-
         tion and Punishment of the Crime of Genocide, against the Serbs on
         its territory, which have been stated in Chapter Seven of the Counter-
         Memorial ;
       4. Bosnia and Herzegovina has the obligation to punish the persons
     held responsible for the acts of genocide and other acts prohibited by the
     1948 Convention on the Prevention and Punishment of the Crime of
     Genocide ;
       5. Bosnia and Herzegovina is bound to take necessary measures so that
     the said acts would not be repeated in the future ;
       6. Bosnia and Herzegovina is bound to eliminate all consequences of
     the violation of the obligations established by the 1948 Convention on the
     Prevention and Punishment of the Crime of Genocide and provide
     adequate compensation.”
On behalf of the Government of Bosnia and Herzegovina,
in the Reply :
       “Therefore the Applicant persists in its claims as presented to this Court
     on 14 April 1994, and recapitulates its Submissions in their entirety.

28

68          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

     Bosnia and Herzegovina requests the International Court of Justice to
     adjudge and declare,
       1. That the Federal Republic of Yugoslavia, directly, or through the use
     of its surrogates, has violated and is violating the Convention on the Pre-
     vention and Punishment of the Crime of Genocide, by destroying in part,
     and attempting to destroy in whole, national, ethnical or religious groups
     within the, but not limited to the, territory of Bosnia and Herzegovina,
     including in particular the Muslim population, by

     — killing members of the group ;
     — causing deliberate bodily or mental harm to members of the group ;
     — deliberately inflicting on the group conditions of life calculated to
       bring about its physical destruction in whole or in part ;
     — imposing measures intended to prevent births within the group ;

        2. That the Federal Republic of Yugoslavia has violated and is violating
     the Convention on the Prevention and Punishment of the Crime of Geno-
     cide by conspiring to commit genocide, by complicity in genocide, by
     attempting to commit genocide and by incitement to commit genocide ;

        3. That the Federal Republic of Yugoslavia has violated and is violating
     the Convention on the Prevention and Punishment of the Crime of Geno-
     cide by aiding and abetting individuals and groups engaged in acts of
     genocide ;
        4. That the Federal Republic of Yugoslavia has violated and is violating
     the Convention on the Prevention and Punishment of the Crime of Geno-
     cide by virtue of having failed to prevent and to punish acts of genocide ;

        5. That the Federal Republic of Yugoslavia must immediately cease the
     above conduct and take immediate and effective steps to ensure full com-
     pliance with its obligations under the Convention on the Prevention and
     Punishment of the Crime of Genocide ;
        6. That the Federal Republic of Yugoslavia must wipe out the conse-
     quences of its international wrongful acts and must restore the situation
     existing before the violations of the Convention on the Prevention and
     Punishment of the Crime of Genocide were committed ;
        7. That, as a result of the international responsibility incurred for the
     above violations of the Convention on the Prevention and Punishment of
     the Crime of Genocide, the Federal Republic of Yugoslavia is required to
     pay, and Bosnia and Herzegovina is entitled to receive, in its own right and
     as parens patriae for its citizens, full compensation for the damages and
     losses caused, in the amount to be determined by the Court in a subse-
     quent phase of the proceedings in this case.
        Bosnia and Herzegovina reserves its right to supplement or amend its
     submissions in the light of further pleadings ;
        8. On the very same grounds the conclusions and submissions of the
     Federal Republic of Yugoslavia with regard to the submissions of Bosnia
     and Herzegovina need to be rejected ;
        9. With regard to the Respondent’s counter-claims the Applicant comes
     to the following conclusion. There is no basis in fact and no basis in law

29

69           APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

     for the proposition that genocidal acts have been committed against Serbs
     in Bosnia and Herzegovina. There is no basis in fact and no basis in law
     for the proposition that any such acts, if proven, would have been com-
     mitted under the responsibility of Bosnia and Herzegovina or that such
     acts, if proven, would be attributable to Bosnia and Herzegovina. Also,
     there is no basis in fact and no basis in law for the proposition that Bosnia
     and Herzegovina has violated any of its obligations under the Convention
     on the Prevention and Punishment of the Crime of Genocide. On the con-
     trary, Bosnia and Herzegovina has continuously done everything within its
     possibilities to adhere to its obligations under the Convention, and will
     continue to do so ;

        10. For these reasons, Bosnia and Herzegovina requests the Interna-
     tional Court of Justice to reject the counter-claims submitted by the
     Respondent in its Counter-Memorial of 23 July 1997.”
On behalf of the Government of Serbia and Montenegro,
in the Rejoinder2 :
       “The Federal Republic of Yugoslavia requests the International Court
     of Justice to adjudge and declare :
       1. In view of the fact that no obligations established by the 1948 Con-
     vention on the Prevention and Punishment of the Crime of Genocide have
     been violated with regard to Muslims and Croats,
     — since the acts alleged by the Applicant have not been committed at all,
        or not to the extent and in the way alleged by the Applicant, or

     — if some have been committed, there was absolutely no intention of
       committing genocide, and/or
     — they have not been directed specifically against the members of one
       ethnic or religious group, i.e. they have not been committed against
       individuals just because they belong to some ethnic or religious group,

     consequently they cannot be qualified as acts of genocide or other acts
     prohibited by the 1948 Convention on the Prevention and Punishment of
     the Crime of Genocide, and/or
       2. In view of the fact that the acts alleged by the Applicant in its sub-
     missions cannot be attributed to the Federal Republic of Yugoslavia,
     — since they have not been committed by the organs of the Federal
         Republic of Yugoslavia,
     — since they have not been committed on the territory of the Federal
         Republic of Yugoslavia,
     — since they have not been committed by the order or under control of
         the organs of the Federal Republic of Yugoslavia,
     — since there are no other grounds based on the rules of international law
         to consider them as acts of the Federal Republic of Yugoslavia,

  2 Submissions 3 to 6 relate to counter-claims which were subsequently withdrawn (see

paragraphs 26 and 27 above).

30

70          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

     therefore the Court rejects all the claims of the Applicant, and

       3. Bosnia and Herzegovina is responsible for the acts of genocide com-
     mitted against Serbs in Bosnia and Herzegovina and for other violations
     of the obligations established by the 1948 Convention on the Prevention
     and Punishment of the Crime of Genocide,
     — because it has incited acts of genocide by the ‘Islamic Declaration’, and
         in particular by the position contained in it that ‘there can be no peace
         or coexistence between “Islamic faith” and “non-Islamic” social and
         political institutions’,
     — because it has incited acts of genocide by the Novi Vox, paper of the
         Muslim youth, and in particular by the verses of a ‘Patriotic Song’
         which read as follows :
         ‘Dear mother, I’m going to plant willows,
         We’ll hang Serbs from them.
         Dear mother, I’m going to sharpen knives,
         We’ll soon fill pits again’ ;
     — because it has incited acts of genocide by the paper Zmaj od Bosne,
         and in particular by the sentence in an article published in it that ‘Each
         Muslim’ must name a Serb and take oath to kill him ;

     — because public calls for the execution of Serbs were broadcast on radio
       ‘Hajat’ and thereby acts of genocide were incited ;

     — because the armed forces of Bosnia and Herzegovina, as well as other
         organs of Bosnia and Herzegovina have committed acts of genocide
         and other acts prohibited by the 1948 Convention on the Prevention
         and Punishment of the Crime of Genocide (enumerated in Article III),
         against Serbs in Bosnia and Herzegovina, which have been stated in
         Chapter Seven of the Counter-Memorial ;
     — because Bosnia and Herzegovina has not prevented the acts of
         genocide and other acts prohibited by the 1948 Convention on the
         Prevention and Punishment of the Crime of Genocide (enumerated
         in Article III), against Serbs on its territory, which have been stated
         in Chapter Seven of the Counter-Memorial ;
       4. Bosnia and Herzegovina has the obligation to punish the persons
     held responsible for the acts of genocide and other acts prohibited by the
     1948 Convention on the Prevention and Punishment of the Crime of
     Genocide ;
       5. Bosnia and Herzegovina is bound to take necessary measures so that
     the said acts would not be repeated in the future ;
       6. Bosnia and Herzegovina is bound to eliminate all the consequences
     of violation of the obligations established by the 1948 Convention on the
     Prevention and Punishment of the Crime of Genocide and to provide
     adequate compensation.”
  66. At the oral proceedings, the following final submissions were presented
by the Parties :
On behalf of the Government of Bosnia and Herzegovina,
at the hearing of 24 April 2006 :

31

71          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

       “Bosnia and Herzegovina requests the International Court of Justice to
     adjudge and declare :
        1. That Serbia and Montenegro, through its organs or entities under its
     control, has violated its obligations under the Convention on the Preven-
     tion and Punishment of the Crime of Genocide by intentionally destroying
     in part the non-Serb national, ethnical or religious group within, but not
     limited to, the territory of Bosnia and Herzegovina, including in particular
     the Muslim population, by

     — killing members of the group ;
     — causing serious bodily or mental harm to members of the group ;
     — deliberately inflicting on the group conditions of life calculated to
          bring about its physical destruction in whole or in part ;
     — imposing measures intended to prevent births within the group ;
     — forcibly transferring children of the group to another group ;
        2. Subsidiarily :
      (i) that Serbia and Montenegro has violated its obligations under the
          Convention on the Prevention and Punishment of the Crime of Geno-
          cide by complicity in genocide as defined in paragraph 1, above ;
          and/or
     (ii) that Serbia and Montenegro has violated its obligations under the
          Convention on the Prevention and Punishment of the Crime of Geno-
          cide by aiding and abetting individuals, groups and entities engaged in
          acts of genocide, as defined in paragraph 1 above ;

       3. That Serbia and Montenegro has violated its obligations under the
     Convention on the Prevention and Punishment of the Crime of Genocide
     by conspiring to commit genocide and by inciting to commit genocide, as
     defined in paragraph 1 above ;

        4. That Serbia and Montenegro has violated its obligations under the
     Convention on the Prevention and Punishment of the Crime of Genocide
     for having failed to prevent genocide ;
        5. That Serbia and Montenegro has violated and is violating its obliga-
     tions under the Convention on the Prevention and Punishment of the
     Crime of Genocide for having failed and for failing to punish acts of geno-
     cide or any other act prohibited by the Convention on the Prevention and
     Punishment of the Crime of Genocide, and for having failed and for fail-
     ing to transfer individuals accused of genocide or any other act prohibited
     by the Convention to the International Criminal Tribunal for the former
     Yugoslavia and to fully co-operate with this Tribunal ;

       6. That the violations of international law set out in submissions 1 to 5
     constitute wrongful acts attributable to Serbia and Montenegro which
     entail its international responsibility, and, accordingly,
     (a) that Serbia and Montenegro shall immediately take effective steps to
          ensure full compliance with its obligation to punish acts of genocide
          under the Convention on the Prevention and Punishment of the
          Crime of Genocide or any other act prohibited by the Convention
          and to transfer individuals accused of genocide or any other act pro-

32

72          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

         hibited by the Convention to the International Criminal Tribunal for
         the former Yugoslavia and to fully co-operate with this Tribunal ;
     (b) that Serbia and Montenegro must redress the consequences of its
         international wrongful acts and, as a result of the international respon-
         sibility incurred for the above violations of the Convention on the
         Prevention and Punishment of the Crime of Genocide, must pay, and
         Bosnia and Herzegovina is entitled to receive, in its own right and as
         parens patriae for its citizens, full compensation for the damages and
         losses caused. That, in particular, the compensation shall cover any
         financially assessable damage which corresponds to :

              (i) damage caused to natural persons by the acts enumerated in
                  Article III of the Convention, including non-material damage
                  suffered by the victims or the surviving heirs or successors and
                  their dependants ;
             (ii) material damage caused to properties of natural or legal per-
                  sons, public or private, by the acts enumerated in Article III of
                  the Convention ;
            (iii) material damage suffered by Bosnia and Herzegovina in respect
                  of expenditures reasonably incurred to remedy or mitigate
                  damage flowing from the acts enumerated in Article III of the
                  Convention ;
     (c) that the nature, form and amount of the compensation shall be deter-
           mined by the Court, failing agreement thereon between the Parties
           one year after the Judgment of the Court, and that the Court shall
           reserve the subsequent procedure for that purpose ;
     (d) that Serbia and Montenegro shall provide specific guarantees and
           assurances that it will not repeat the wrongful acts complained of, the
           form of which guarantees and assurances is to be determined by the
           Court ;
        7. That in failing to comply with the Orders for indication of provi-
     sional measures rendered by the Court on 8 April 1993 and 13 Septem-
     ber 1993 Serbia and Montenegro has been in breach of its international
     obligations and is under an obligation to Bosnia and Herzegovina to pro-
     vide for the latter violation symbolic compensation, the amount of which
     is to be determined by the Court.”
On behalf of the Government of Serbia and Montenegro,
at the hearing of 9 May 2006 :
       “Serbia and Montenegro asks the Court to adjudge and declare :
     — that this Court has no jurisdiction because the Respondent had no
         access to the Court at the relevant moment ; or, in the alternative ;
     — that this Court has no jurisdiction over the Respondent because the
         Respondent never remained or became bound by Article IX of the
         Convention on the Prevention and Punishment of the Crime of Geno-
         cide, and because there is no other ground on which jurisdiction over
         the Respondent could be based.
     In case the Court determines that jurisdiction exists Serbia and Monte-
     negro asks the Court to adjudge and declare :
     — That the requests in paragraphs 1 to 6 of the Submissions of Bosnia

33

73          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

        and Herzegovina relating to alleged violations of the obligations under
        the Convention on the Prevention and Punishment of the Crime of
        Genocide be rejected as lacking a basis either in law or in fact.

     — In any event, that the acts and/or omissions for which the respondent
       State is alleged to be responsible are not attributable to the respondent
       State. Such attribution would necessarily involve breaches of the law
       applicable in these proceedings.
     — Without prejudice to the foregoing, that the relief available to the
       applicant State in these proceedings, in accordance with the appro-
       priate interpretation of the Convention on the Prevention and
       Punishment of the Crime of Genocide, is limited to the rendering of a
       declaratory judgment.
     — Further, without prejudice to the foregoing, that any question of legal
       responsibility for alleged breaches of the Orders for the indication of
       provisional measures, rendered by the Court on 8 April 1993 and
       13 September 1993, does not fall within the competence of the Court to
       provide appropriate remedies to an applicant State in the context of
       contentious proceedings, and, accordingly, the request in paragraph 7
       of the Submissions of Bosnia and Herzegovina should be rejected.”

                                    * * *

              II. IDENTIFICATION OF THE RESPONDENT PARTY
   67. The Court has first to consider a question concerning the identifi-
cation of the Respondent Party before it in these proceedings. After the
close of the oral proceedings, by a letter dated 3 June 2006, the President
of the Republic of Serbia informed the Secretary-General of the United
Nations that, following the Declaration of Independence adopted by the
National Assembly of Montenegro on 3 June 2006, “the membership of
the state union Serbia and Montenegro in the United Nations, including
all organs and organisations of the United Nations system, [would be]
continued by the Republic of Serbia on the basis of Article 60 of the Con-
stitutional Charter of Serbia and Montenegro”. He further stated that “in
the United Nations the name ‘Republic of Serbia’ [was] to be henceforth
used instead of the name ‘Serbia and Montenegro’ ” and added that the
Republic of Serbia “remain[ed] responsible in full for all the rights and
obligations of the state union of Serbia and Montenegro under the UN
Charter”.

  68. By a letter of 16 June 2006, the Minister for Foreign Affairs of the
Republic of Serbia informed the Secretary-General, inter alia, that “[t]he
Republic of Serbia continue[d] to exercise its rights and honour its com-
mitments deriving from international treaties concluded by Serbia and
Montenegro” and requested that “the Republic of Serbia be considered a
party to all international agreements in force, instead of Serbia and Mon-
tenegro”. By a letter addressed to the Secretary-General dated 30 June

34

74         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

2006, the Minister for Foreign Affairs confirmed the intention of the
Republic of Serbia to continue to exercise its rights and honour its com-
mitments deriving from international treaties concluded by Serbia and
Montenegro. He specified that “all treaty actions undertaken by Serbia
and Montenegro w[ould] continue in force with respect to the Republic
of Serbia with effect from 3 June 2006”, and that, “all declarations,
reservations and notifications made by Serbia and Montenegro w[ould]
be maintained by the Republic of Serbia until the Secretary-General,
as depositary, [were] duly notified otherwise”.

  69. On 28 June 2006, by its resolution 60/264, the General Assembly
admitted the Republic of Montenegro (hereinafter “Montenegro”) as a
new Member of the United Nations.
  70. By letters dated 19 July 2006, the Registrar requested the Agent of
Bosnia and Herzegovina, the Agent of Serbia and Montenegro and the
Foreign Minister of Montenegro to communicate to the Court the views
of their Governments on the consequences to be attached to the above-
mentioned developments in the context of the case. By a letter dated
26 July 2006, the Agent of Serbia and Montenegro explained that, in his
Government’s opinion, “there [was] continuity between Serbia and Mon-
tenegro and the Republic of Serbia (on the grounds of Article 60 of the
Constitutional Charter of Serbia and Montenegro)”. He noted that the
entity which had been Serbia and Montenegro “ha[d] been replaced by
two distinct States, one of them [was] Serbia, the other [was] Monte-
negro”. In those circumstances, the view of his Government was that
“the Applicant ha[d] first to take a position, and to decide whether it
wishe[d] to maintain its original claim encompassing both Serbia and
Montenegro, or whether it [chose] to do otherwise”.

  71. By a letter to the Registrar dated 16 October 2006, the Agent of
Bosnia and Herzegovina referred to the letter of 26 July 2006 from the
Agent of Serbia and Montenegro, and observed that Serbia’s definition
of itself as the continuator of the former Serbia and Montenegro had
been accepted both by Montenegro and the international community. He
continued however as follows :
     “this acceptance cannot have, and does not have, any effect on the
     applicable rules of state responsibility. Obviously, these cannot be
     altered bilaterally or retroactively. At the time when genocide was
     committed and at the time of the initiation of this case, Serbia and
     Montenegro constituted a single state. Therefore, Bosnia and Herze-
     govina is of the opinion that both Serbia and Montenegro, jointly
     and severally, are responsible for the unlawful conduct that consti-
     tute the cause of action in this case.”
  72. By a letter dated 29 November 2006, the Chief State Prosecutor of
Montenegro, after indicating her capacity to act as legal representative of
the Republic of Montenegro, referred to the letter from the Agent of

35

75         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Bosnia and Herzegovina dated 16 October 2006, quoted in the previous
paragraph, expressing the view that “both Serbia and Montenegro, jointly
and severally, are responsible for the unlawful conduct that constitute[s]
the cause of action in this case”. The Chief State Prosecutor stated that
the allegation concerned the liability in international law of the sovereign
State of Montenegro, and that Montenegro regarded it as an attempt to
have it become a participant in this way, without its consent, “i.e. to
become a respondent in this procedure”. The Chief State Prosecutor
drew attention to the fact that, following the referendum held in Mon-
tenegro on 21 May 2006, the National Assembly of Montenegro had
adopted a decision pronouncing the independence of the Republic of
Montenegro. In the view of the Chief State Prosecutor, the Republic of
Montenegro had become “an independent state with full international
legal personality within its existing administrative borders”, and she
continued :

        “The issue of international-law succession of [the] State union of
     Serbia and Montenegro is regulated in Article 60 of [the] Constitu-
     tional Charter, and according to [that] Article the legal successor of
     [the] State union of Serbia and Montenegro is the Republic of
     Serbia, which, as a sovereign state, [has] become [the] follower of
     all international obligations and successor in international organi-
     zations.”
The Chief State Prosecutor concluded that in the dispute before the
Court, “the Republic of Montenegro may not have [the] capacity of
respondent, [for the] above mentioned reasons”.
  73. By a letter dated 11 December 2006, the Agent of Serbia referred
to the letters from the Applicant and from Montenegro described in
paragraphs 71 and 72 above, and observed that there was “an obvious
contradiction between the position of the Applicant on the one hand and
the position of Montenegro on the other regarding the question whether
these proceedings may or may not yield a decision which would result in
the international responsibility of Montenegro” for the unlawful conduct
invoked by the Applicant. The Agent stated that “Serbia is of the opinion
that this issue needs to be resolved by the Court”.

  74. The Court observes that the facts and events on which the final
submissions of Bosnia and Herzegovina are based occurred at a period of
time when Serbia and Montenegro constituted a single State.
  75. The Court notes that Serbia has accepted “continuity between Ser-
bia and Montenegro and the Republic of Serbia” (paragraph 70 above),
and has assumed responsibility for “its commitments deriving from inter-
national treaties concluded by Serbia and Montenegro” (paragraph 68
above), thus including commitments under the Genocide Convention.
Montenegro, on the other hand, does not claim to be the continuator of
Serbia and Montenegro.

36

76          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

   76. The Court recalls a fundamental principle that no State may be
subject to its jurisdiction without its consent ; as the Court observed in
the case of Certain Phosphate Lands in Nauru (Nauru v. Australia), the
Court’s “jurisdiction depends on the consent of States and, consequently,
the Court may not compel a State to appear before it . . .” (Preliminary
Objections, Judgment, I.C.J. Reports 1992, p. 260, para. 53). In its Judg-
ment of 11 July 1996 (see paragraph 12 above), the significance of which
will be explained below, the Court found that such consent existed, for
the purposes of the present case, on the part of the FRY, which subse-
quently assumed the name of Serbia and Montenegro, without however
any change in its legal personality. The events related in paragraphs 67 to
69 above clearly show that the Republic of Montenegro does not con-
tinue the legal personality of Serbia and Montenegro ; it cannot therefore
have acquired, on that basis, the status of Respondent in the present case.
It is also clear from the letter of 29 November 2006 quoted in para-
graph 72 above that it does not give its consent to the jurisdiction of the
Court over it for the purposes of the present dispute. Furthermore, the
Applicant did not in its letter of 16 October 2006 assert that Montenegro
is still a party to the present case ; it merely emphasized its views as to the
joint and several liability of Serbia and of Montenegro.

   77. The Court thus notes that the Republic of Serbia remains a
respondent in the case, and at the date of the present Judgment is indeed
the only Respondent. Accordingly, any findings that the Court may make
in the operative part of the present Judgment are to be addressed to
Serbia.
   78. That being said, it has to be borne in mind that any responsibility
for past events determined in the present Judgment involved at the rele-
vant time the State of Serbia and Montenegro.
   79. The Court observes that the Republic of Montenegro is a party to
the Genocide Convention. Parties to that Convention have undertaken
the obligations flowing from it, in particular the obligation to co-operate
in order to punish the perpetrators of genocide.

                                    * * *
                      III. THE COURT’S JURISDICTION
      (1) Introduction : The Jurisdictional Objection of Serbia and
                              Montenegro
  80. Notwithstanding the fact that in this case the stage of oral pro-
ceedings on the merits has been reached, and the fact that in 1996 the
Court gave a judgment on preliminary objections to its jurisdiction
(Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections, Judgment, I.C.J. Reports 1996 (II), p. 595, hereinafter “the
1996 Judgment”), an important issue of a jurisdictional character has

37

77         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

since been raised by the Initiative, and the Court has been asked to rule
upon it (see paragraphs 26-28 above). The basis of jurisdiction asserted
by the Applicant, and found applicable by the Court by the 1996 Judg-
ment, is Article IX of the Genocide Convention. The Socialist Federal
Republic of Yugoslavia (hereinafter “the SFRY”) became a party to that
Convention on 29 August 1950. In substance, the central question now
raised by the Respondent is whether at the time of the filing of the Appli-
cation instituting the present proceedings the Respondent was or was not
the continuator of the SFRY. The Respondent now contends that it was
not a continuator State, and that therefore not only was it not a party to
the Genocide Convention when the present proceedings were instituted,
but it was not then a party to the Statute of the Court by virtue of mem-
bership in the United Nations ; and that, not being such a party, it did
not have access to the Court, with the consequence that the Court had no
jurisdiction ratione personae over it.
   81. This contention was first raised, in the context of the present case,
by the “Initiative to the Court to Reconsider ex officio Jurisdiction over
Yugoslavia” filed by the Respondent on 4 May 2001 (paragraph 26
above). The circumstances underlying that Initiative will be examined in
more detail below (paragraphs 88-99). Briefly stated, the situation was
that the Respondent, after claiming that since the break-up of the SFRY
in 1992 it was the continuator of that State, and as such maintained the
membership of the SFRY in the United Nations, had on 27 October 2000
applied, “in light of the implementation of the Security Council resolu-
tion 777 (1992)”, to be admitted to the Organization as a new Member,
thereby in effect relinquishing its previous claim. The Respondent con-
tended that it had in 2000 become apparent that it had not been a Mem-
ber of the United Nations in the period 1992-2000, and was thus not a
party to the Statute at the date of the filing of the Application in this
case ; and that it was not a party to the Genocide Convention on that
date. The Respondent concluded that “the Court has no jurisdiction over
[the Respondent] ratione personae”. It requested the Court “to suspend
proceedings regarding the merits of the Case until a decision on this Ini-
tiative is rendered”.

   82. By a letter of 12 June 2003, the Registrar, acting on the instruc-
tions of the Court, informed the Respondent that the Court could not
accede to the request made in that document, that the proceedings be sus-
pended until a decision was rendered on the jurisdictional issues raised
therein. The Respondent was informed, nevertheless, that the Court
“w[ould] not give judgment on the merits in the present case unless it
[was] satisfied that it ha[d] jurisdiction” and that, “[s]hould Serbia and
Montenegro wish to present further argument to the Court on jurisdic-
tional questions during the oral proceedings on the merits, it w[ould] be
free to do so”. The Respondent accordingly raised, as an “issue of pro-
cedure”, the question whether the Respondent had access to the Court at
the date of the Application, and each of the parties has now addressed

38

78          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

argument to the Court on that question. It has however at the same time
been argued by the Applicant that the Court may not deal with the ques-
tion, or that the Respondent is debarred from raising it at this stage of
the proceedings. These contentions will be examined below.

   83. Subsequently, on 15 December 2004, the Court delivered judgment
in eight cases brought by Serbia and Montenegro against Member States
of NATO (cases concerning the Legality of Use of Force). The Applica-
tions instituting proceedings in those cases had been filed on 29 April 1999,
that is to say prior to the admission of Serbia and Montenegro (then
known as the Federal Republic of Yugoslavia) to the United Nations on
1 November 2000. In each of these cases, the Court held that it had no
jurisdiction to entertain the claims made in the Application (see, for
example, Legality of Use of Force (Serbia and Montenegro v. Belgium),
Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 328, para. 129),
on the grounds that “Serbia and Montenegro did not, at the time of the
institution of the present proceedings, have access to the Court under
either paragraph 1 or paragraph 2 of Article 35 of the Statute” (ibid.,
p. 327, para. 127). It held, “in light of the legal consequences of the new
development since 1 November 2000”, that “Serbia and Montenegro was
not a Member of the United Nations, and in that capacity a State party
to the Statute of the International Court of Justice, at the time of filing its
Application . . .” (ibid., p. 311, para. 79). No finding was made in those
judgments on the question whether or not the Respondent was a party to
the Genocide Convention at the relevant time.

   84. Both Parties recognize that each of these Judgments has the force
of res judicata in the specific case for the parties thereto ; but they also
recognize that these Judgments, not having been rendered in the present
case, and involving as parties States not parties to the present case, do
not constitute res judicata for the purposes of the present proceedings. In
view however of the findings in the cases concerning the Legality of Use
of Force as to the status of the FRY vis-à-vis the United Nations and the
Court in 1999, the Respondent has invoked those decisions as supportive
of its contentions in the present case.
   85. The grounds upon which, according to Bosnia and Herzegovina,
the Court should, at this late stage of the proceedings, decline to examine
the questions raised by the Respondent as to the status of Serbia and
Montenegro in relation to Article 35 of the Statute, and its status as a
party to the Genocide Convention, are because the conduct of the
Respondent in relation to the case has been such as to create a sort of
forum prorogatum, or an estoppel, or to debar it, as a matter of good
faith, from asserting at this stage of the proceedings that it had no access
to the Court at the date the proceedings were instituted ; and because the
questions raised by the Respondent had already been resolved by the
1996 Judgment, with the authority of res judicata.

39

79         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

   86. As a result of the Initiative of the Respondent (paragraph 81
above), and its subsequent argument on what it has referred to as an
“issue of procedure”, the Court has before it what is essentially an objec-
tion by the Respondent to its jurisdiction, which is preliminary in the
sense that, if it is upheld, the Court will not proceed to determine the
merits. The Applicant objects in turn to the Court examining further the
Respondent’s jurisdictional objection. These matters evidently require
to be examined as preliminary points, and it was for this reason that
the Court instructed the Registrar to write to the Parties the letter of
12 June 2003, referred to in paragraph 82 above. The letter was intended
to convey that the Court would listen to any argument raised by the Ini-
tiative which might be put to it, but not as an indication of what its ruling
might be on any such arguments.
   87. In order to make clear the background to these issues, the Court
will first briefly review the history of the relationship between the
Respondent and the United Nations during the period from the break-up
of the SFRY in 1992 to the admission of Serbia and Montenegro (then
called the Federal Republic of Yugoslavia) to the United Nations on
1 November 2000. The previous decisions of the Court in this case, and
in the Application for Revision case, have been briefly recalled above
(paragraphs 4, 8, 12 and 31). They will be referred to more fully below
(paragraphs 105-113) for the purpose of (in particular) an examination of
the contentions of Bosnia and Herzegovina on the question of res judicata.

                                    *   *

         (2) History of the Status of the FRY with Regard to
                          the United Nations

  88. In the early 1990s the SFRY, a founding Member State of the
United Nations, made up of Bosnia and Herzegovina, Croatia, Macedo-
nia, Montenegro, Serbia and Slovenia, began to disintegrate. On
25 June 1991 Croatia and Slovenia both declared independence, followed
by Macedonia on 17 September 1991 and Bosnia and Herzegovina on
6 March 1992. On 22 May 1992, Bosnia and Herzegovina, Croatia and
Slovenia were admitted as Members to the United Nations ; as was the
former Yugoslav Republic of Macedonia on 8 April 1993.

   89. On 27 April 1992 the “participants of the joint session of the
SFRY Assembly, the National Assembly of the Republic of Serbia and
the Assembly of the Republic of Montenegro” had adopted a declara-
tion, stating in pertinent parts :

40

80         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

       “. . . . . . . . . . . . . . . . . . . . . . . . . . . .
       1. The Federal Republic of Yugoslavia, continuing the state, inter-
     national legal and political personality of the Socialist Federal
     Republic of Yugoslavia, shall strictly abide by all the commitments
     that the SFR of Yugoslavia assumed internationally,

     . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
       Remaining bound by all obligations to international organizations
     and institutions whose member it is . . .” (United Nations doc. A/
     46/915, Ann. II).
  90. An official Note dated 27 April 1992 from the Permanent Mission
of Yugoslavia to the United Nations, addressed to the Secretary-General
of the United Nations, stated inter alia that :

        “The Assembly of the Socialist Federal Republic of Yugoslavia, at
     its session held on 27 April 1992, promulgated the Constitution of
     the Federal Republic of Yugoslavia. Under the Constitution, on the
     basis of the continuing personality of Yugoslavia and the legitimate
     decisions by Serbia and Montenegro to continue to live together in
     Yugoslavia, the Socialist Federal Republic of Yugoslavia is trans-
     formed into the Federal Republic of Yugoslavia, consisting of the
     Republic of Serbia and the Republic of Montenegro.

        Strictly respecting the continuity of the international personality
     of Yugoslavia, the Federal Republic of Yugoslavia shall continue to
     fulfil all the rights conferred to, and obligations assumed by, the
     Socialist Federal Republic of Yugoslavia in international relations,
     including its membership in all international organizations and par-
     ticipation in international treaties ratified or acceded to by Yugosla-
     via.” (United Nations doc. A/46/915, Ann. I.)

   91. On 30 May 1992, the Security Council adopted resolu-
tion 757 (1992), in which, inter alia, it noted that “the claim by the Fed-
eral Republic of Yugoslavia (Serbia and Montenegro) to continue auto-
matically the membership of the former Socialist Federal Republic of
Yugoslavia in the United Nations has not been generally accepted”.

  92. On 19 September 1992, the Security Council adopted resolution 777
(1992) which read as follows :
       “The Security Council,
       Reaffirming its resolution 713 (1991) of 25 September 1991 and all
     subsequent relevant resolutions,

41

81         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

        Considering that the state formerly known as the Socialist Federal
     Republic of Yugoslavia has ceased to exist,
        Recalling in particular resolution 757 (1992) which notes that ‘the
     claim by the Federal Republic of Yugoslavia (Serbia and Monte-
     negro) to continue automatically the membership of the former
     Socialist Federal Republic of Yugoslavia in the United Nations
     has not been generally accepted’,

       1. Considers that the Federal Republic of Yugoslavia (Serbia and
     Montenegro) cannot continue automatically the membership of the
     former Socialist Federal Republic of Yugoslavia in the United
     Nations ; and therefore recommends to the General Assembly that it
     decide that the Federal Republic of Yugoslavia (Serbia and Mon-
     tenegro) should apply for membership in the United Nations and
     that it shall not participate in the work of the General Assembly ;

      2. Decides to consider the matter again before the end of the
     main part of the forty-seventh session of the General Assembly.”

The resolution was adopted by 12 votes in favour, none against, and
3 abstentions.
   93. On 22 September 1992 the General Assembly adopted resolu-
tion 47/1, according to which :
       “The General Assembly,
        Having received the recommendation of the Security Council of
     19 September 1992 that the Federal Republic of Yugoslavia (Serbia
     and Montenegro) should apply for membership in the United
     Nations and that it shall not participate in the work of the General
     Assembly,
        1. Considers that the Federal Republic of Yugoslavia (Serbia and
     Montenegro) cannot continue automatically the membership of the
     former Socialist Federal Republic of Yugoslavia in the United
     Nations ; and therefore decides that the Federal Republic of Yugo-
     slavia (Serbia and Montenegro) should apply for membership in the
     United Nations and that it shall not participate in the work of the
     General Assembly ;

       2. Takes note of the intention of the Security Council to consider
     the matter again before the end of the main part of the forty-seventh
     session of the General Assembly.”
The resolution was adopted by 127 votes to 6, with 26 abstentions.
  94. On 25 September 1992, the Permanent Representatives of Bosnia
and Herzegovina and Croatia addressed a letter to the Secretary-General,
in which, with reference to Security Council resolution 777 (1992) and

42

82         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

General Assembly resolution 47/1, they stated their understanding as fol-
lows : “At this moment, there is no doubt that the Socialist Federal
Republic of Yugoslavia is not a member of the United Nations any more.
At the same time, the Federal Republic of Yugoslavia is clearly not yet a
member.” They concluded that “[t]he flag flying in front of the United
Nations and the name-plaque bearing the name ‘Yugoslavia’ do not rep-
resent anything or anybody any more” and “kindly request[ed] that [the
Secretary-General] provide a legal explanatory statement concerning the
questions raised” (United Nations doc. A/47/474).

  95. In response, on 29 September 1992, the Under-Secretary-General
and Legal Counsel of the United Nations addressed a letter to the Per-
manent Representatives of Bosnia and Herzegovina and Croatia, in
which he stated that the “considered view of the United Nations Secre-
tariat regarding the practical consequences of the adoption by the Gen-
eral Assembly of resolution 47/1” was as follows :

        “While the General Assembly has stated unequivocally that the
     Federal Republic of Yugoslavia (Serbia and Montenegro) cannot
     automatically continue the membership of the former Socialist Fed-
     eral Republic of Yugoslavia in the United Nations and that the Fed-
     eral Republic of Yugoslavia (Serbia and Montenegro) should apply
     for membership in the United Nations, the only practical conse-
     quence that the resolution draws is that the Federal Republic of
     Yugoslavia (Serbia and Montenegro) shall not participate in the
     work of the General Assembly. It is clear, therefore, that representa-
     tives of the Federal Republic of Yugoslavia (Serbia and Montene-
     gro) can no longer participate in the work of the General Assembly,
     its subsidiary organs, nor conferences and meetings convened by it.

        On the other hand, the resolution neither terminates nor suspends
     Yugoslavia’s membership in the Organization. Consequently, the
     seat and nameplate remain as before, but in Assembly bodies repre-
     sentatives of the Federal Republic of Yugoslavia (Serbia and Mon-
     tenegro) cannot sit behind the sign ‘Yugoslavia’. Yugoslav missions
     at United Nations Headquarters and offices may continue to func-
     tion and may receive and circulate documents. At Headquarters, the
     Secretariat will continue to fly the flag of the old Yugoslavia as it is
     the last flag of Yugoslavia used by the Secretariat. The resolution
     does not take away the right of Yugoslavia to participate in the
     work of organs other than Assembly bodies. The admission to the
     United Nations of a new Yugoslavia under Article 4 of the Charter
     will terminate the situation created by resolution 47/1.” (United
     Nations doc. A/47/485 ; emphasis in the original.)

43

83         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

   96. On 29 April 1993, the General Assembly, upon the recommenda-
tion contained in Security Council resolution 821 (1993) (couched in
terms similar to those of Security Council resolution 777 (1992)), adopted
resolution 47/229 in which it decided that “the Federal Republic of
Yugoslavia (Serbia and Montenegro) shall not participate in the work of
the Economic and Social Council”.
   97. In its Judgments in the cases concerning the Legality of Use of
Force (paragraph 83 above), the Court commented on this sequence of
events by observing that “all these events testify to the rather confused
and complex state of affairs that obtained within the United Nations sur-
rounding the issue of the legal status of the Federal Republic of Yugo-
slavia in the Organization during this period” (Preliminary Objections,
Judgment, I.C.J. Reports 2004, p. 308, para. 73), and earlier the Court, in
another context, had referred to the “sui generis position which the FRY
found itself in” during the period between 1992 to 2000 (loc. cit., citing
I.C.J. Reports 2003, p. 31, para. 71).

   98. This situation, however, came to an end with a new development
in 2000. On 24 September 2000, Mr. Koštunica was elected President of
the FRY. In that capacity, on 27 October 2000 he sent a letter to the
Secretary-General requesting admission of the FRY to membership in
the United Nations, in the following terms :
        “In the wake of fundamental democratic changes that took place
     in the Federal Republic of Yugoslavia, in the capacity of President,
     I have the honour to request the admission of the Federal Republic
     of Yugoslavia to the United Nations in light of the implementation
     of the Security Council resolution 777 (1992).” (United Nations
     doc. A/55/528-S/2000/1043 ; emphasis added.)
   99. Acting upon this application by the FRY for membership in the
United Nations, the Security Council on 31 October 2000 “recom-
mend[ed] to the General Assembly that the Federal Republic of Yugo-
slavia be admitted to membership in the United Nations” (United Nations
doc. S/RES/1326). On 1 November 2000, the General Assembly, by reso-
lution 55/12, “[h]aving received the recommendation of the Security
Council of 31 October 2000” and “[h]aving considered the application
for membership of the Federal Republic of Yugoslavia”, decided to
“admit the Federal Republic of Yugoslavia to membership in the United
Nations”.

                                   *   *

             (3) The Response of Bosnia and Herzegovina
  100. The Court will now consider the Applicant’s response to the juris-
dictional objection raised by the Respondent, that is to say the conten-

44

84         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

tion of Bosnia and Herzegovina that the Court should not examine the
question, raised by the Respondent in its Initiative (paragraph 81 above),
of the status of the Respondent at the date of the filing of the Application
instituting proceedings. It is first submitted by Bosnia and Herzegovina
that the Respondent was under a duty to raise the issue of whether the
FRY (Serbia and Montenegro) was a Member of the United Nations at
the time of the proceedings on the preliminary objections, in 1996, and
that since it did not do so, the principle of res judicata, attaching to the
Court’s 1996 Judgment on those objections, prevents it from reopening
the issue. Secondly, the Applicant argues that the Court itself, having
decided in 1996 that it had jurisdiction in the case, would be in breach of
the principle of res judicata if it were now to decide otherwise, and that
the Court cannot call in question the authority of its decisions as res judi-
cata.
   101. The first contention, as to the alleged consequences of the fact
that Serbia did not raise the question of access to the Court under
Article 35 at the preliminary objection stage, can be dealt with succinctly.
Bosnia and Herzegovina has argued that to uphold the Respondent’s
objection “would mean that a respondent, after having asserted one or
more preliminary objections, could still raise others, to the detriment of
the effective administration of justice, the smooth conduct of proceed-
ings, and, in the present case, the doctrine of res judicata”. It should
however be noted that if a party to proceedings before the Court chooses
not to raise an issue of jurisdiction by way of the preliminary objection
procedure under Article 79 of the Rules, that party is not necessarily
thereby debarred from raising such issue during the proceedings on the
merits of the case. As the Court stated in the case of Avena and Other
Mexican Nationals (Mexico v. United States of America),

        “There are of course circumstances in which the party failing to
     put forward an objection to jurisdiction might be held to have acqui-
     esced in jurisdiction (Appeal Relating to the Jurisdiction of the
     ICAO Council, Judgment, I.C.J. Reports 1972, p. 52, para. 13).
     However, apart from such circumstances, a party failing to avail
     itself of the Article 79 procedure may forfeit the right to bring about
     a suspension of the proceedings on the merits, but can still argue the
     objection along with the merits.” (Judgment, I.C.J. Reports 2004,
     p. 29, para. 24).
This first contention of Bosnia and Herzegovina must thus be understood
as a claim that the Respondent, by its conduct in relation to the case,
including the failure to raise the issue of the application of Article 35 of
the Statute, by way of preliminary objection or otherwise, at an earlier
stage of the proceedings, should be held to have acquiesced in jurisdic-
tion. This contention is thus parallel to the argument mentioned above
(paragraph 85), also advanced by Bosnia and Herzegovina, that the
Respondent is debarred from asking the Court to examine that issue for

45

85         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

reasons of good faith, including estoppel and the principle allegans con-
traria nemo audietur.

   102. The Court does not however find it necessary to consider here
whether the conduct of the Respondent could be held to constitute an
acquiescence in the jurisdiction of the Court. Such acquiescence, if estab-
lished, might be relevant to questions of consensual jurisdiction, and in
particular jurisdiction ratione materiae under Article IX of the Genocide
Convention, but not to the question whether a State has the capacity
under the Statute to be a party to proceedings before the Court.

  The latter question may be regarded as an issue prior to that of juris-
diction ratione personae, or as one constitutive element within the con-
cept of jurisdiction ratione personae. Either way, unlike the majority of
questions of jurisdiction, it is not a matter of the consent of the parties.
As the Court observed in the cases concerning the Legality of Use of
Force,
     “a distinction has to be made between a question of jurisdiction that
     relates to the consent of a party and the question of the right of a
     party to appear before the Court under the requirements of the Stat-
     ute, which is not a matter of consent. The question is whether as a
     matter of law Serbia and Montenegro was entitled to seise the Court
     as a party to the Statute at the time when it instituted proceedings in
     these cases. Since that question is independent of the views or wishes
     of the Parties, even if they were now to have arrived at a shared view
     on the point, the Court would not have to accept that view as
     necessarily the correct one. The function of the Court to enquire
     into the matter and reach its own conclusion is thus mandatory
     upon the Court irrespective of the consent of the parties and is in no
     way incompatible with the principle that the jurisdiction of the
     Court depends on consent.” (Legality of Use of Force (Serbia and
     Montenegro v. Belgium), Preliminary Objections, Judgment,
     I.C.J. Reports 2004, p. 295, para. 36 ; emphasis in the original.)

   103. It follows that, whether or not the Respondent should be held to
have acquiesced in the jurisdiction of the Court in this case, such acqui-
escence would in no way debar the Court from examining and ruling
upon the question stated above. The same reasoning applies to the argu-
ment that the Respondent is estopped from raising the matter at this
stage, or debarred from doing so by considerations of good faith. All
such considerations can, at the end of the day, only amount to attributing
to the Respondent an implied acceptance, or deemed consent, in relation
to the jurisdiction of the Court ; but, as explained above, ad hoc consent
of a party is distinct from the question of its capacity to be a party to
proceedings before the Court.
   104. However Bosnia and Herzegovina’s second contention is that,

46

86         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

objectively and apart from any effect of the conduct of the Respondent,
the question of the application of Article 35 of the Statute in this case has
already been resolved as a matter of res judicata, and that if the Court
were to go back on its 1996 decision on jurisdiction, it would disregard
fundamental rules of law. In order to assess the validity of this conten-
tion, the Court will first review its previous decisions in the present case
in which its jurisdiction, or specifically the question whether Serbia and
Montenegro could properly appear before the Court, has been in issue.

                                 * *
                (4) Relevant Past Decisions of the Court
   105. On 8 April 1993, the Court made an Order in this case indicating
certain provisional measures. In that Order the Court briefly examined
the circumstances of the break-up of the SFRY, and the claim of the
Respondent (then known as “Yugoslavia (Serbia and Montenegro)”) to
continuity with that State, and consequent entitlement to continued
membership in the United Nations. It noted that “the solution adopted”
within the United Nations was “not free from legal difficulties”, but con-
cluded that “the question whether or not Yugoslavia is a Member of the
United Nations and as such a party to the Statute of the Court is one
which the Court does not need to determine definitively at the present
stage of the proceedings” (Application of the Convention on the Preven-
tion and Punishment of the Crime of Genocide (Bosnia and Herze-
govina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures,
Order of 8 April 1993, I.C.J. Reports 1993, p. 14 para. 18). This conclu-
sion was based in part on a provisional view taken by the Court as to the
effect of the proviso to Article 35, paragraph 2, of the Statute (ibid.,
para. 19). The Order contained the reservation, normally included in
orders on requests for provisional measures, that “the decision given in
the present proceedings in no way prejudges the question of the jurisdic-
tion of the Court to deal with the merits of the case . . . and leaves un-
affected the right of the Governments of Bosnia-Herzegovina and Yugo-
slavia to submit arguments in respect of [that question]” (ibid., p. 23,
para. 51). It is therefore evident that no question of res judicata arises in
connection with the Order of 8 April 1993. A further Order on provi-
sional measures was made on 13 September 1993, but contained nothing
material to the question now being considered.

  106. In 1995 the Respondent raised seven preliminary objections (one
of which was later withdrawn), three of which invited the Court to find
that it had no jurisdiction in the case. None of these objections were how-
ever founded on a contention that the FRY was not a party to the Stat-
ute at the relevant time ; that was not a contention specifically advanced
in the proceedings on the preliminary objections. At the time of those

47

87         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

proceedings, the FRY was persisting in the claim, that it was continuing
the membership of the former SFRY in the United Nations ; and while
that claim was opposed by a number of States, the position taken by the
various organs gave rise to a “confused and complex state of affairs . . .
within the United Nations” (Legality of Use of Force (Serbia and Mon-
tenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports
2004, p. 308, para. 73). Neither party raised the matter before the Court :
Bosnia and Herzegovina as Applicant, while denying that the FRY was a
Member of the United Nations as a continuator of the SFRY, was assert-
ing before this Court that the FRY was nevertheless a party to the Stat-
ute, either under Article 35, paragraph 2, thereof, or on the basis of the
declaration of 27 April 1992 (see paragraphs 89 to 90 above) ; and for the
FRY to raise the issue would have involved undermining or abandoning
its claim to be the continuator of the SFRY as the basis for continuing
membership of the United Nations.

   107. By the 1996 Judgment, the Court rejected the preliminary objec-
tions of the Respondent, and found that, “on the basis of Article IX of
the Convention on the Prevention and Punishment of the Crime of
Genocide, it has jurisdiction to adjudicate upon the dispute” (Application
of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objec-
tions, Judgment, I.C.J. Reports 1996 (II), p. 623, para. 47 (2) (a)). It
also found that the Application was admissible, and stated that “the
Court may now proceed to consider the merits of the case . . .” (ibid.,
p. 622, para. 46).
   108. However, on 24 April 2001 Serbia and Montenegro (then known
as the Federal Republic of Yugoslavia) filed an Application instituting
proceedings seeking revision, under Article 61 of the Statute, of the
1996 Judgment on jurisdiction in this case. That Article requires that
there exist “some fact of such a nature as to be a decisive factor, which
fact was, when the judgment was given, unknown to the Court . . .”. The
FRY claimed in its Application that :
      “The admission of the FRY to the United Nations as a new
     Member on 1 November 2000 is certainly a new fact . . .

     . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
       The admission of the FRY to the United Nations as a new
     Member clears ambiguities and sheds a different light on the issue
     of the membership of the FRY in the United Nations, in the Statute
     and in the Genocide Convention.” (Application for Revision, I.C.J.
     Reports 2003, p. 12, para. 18.)
Essentially the contention of the FRY was that its admission to member-
ship in 2000 necessarily implied that it was not a Member of the United
Nations and thus not a party to the Statute in 1993, when the proceed-

48

88          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

ings in the present case were instituted, so that the Court would have had
no jurisdiction in the case.
   109. The history of the relationship between the FRY and the United
Nations, from the break-up of the SFRY in 1991-1992 up to the admis-
sion of the FRY as a new Member in 2000, has been briefly recalled in
paragraphs 88 to 99 above. That history has been examined in detail on
more than one occasion, both in the context of the Application for revi-
sion referred to in paragraph 108 and in the Court’s Judgments in 2004 in
the cases concerning the Legality of Use of Force. In its Judgment of
3 February 2003 on the Application for revision, the Court carefully
studied that relationship ; it also recalled the terms of its 1996 Judgment
finding in favour of jurisdiction. The Court noted that
     “the FRY claims that the facts which existed at the time of the 1996
     Judgment and upon the discovery of which its request for revision of
     that Judgment is based ‘are that the FRY was not a party to the
     Statute, and that it did not remain bound by the Genocide Conven-
     tion continuing the personality of the former Yugoslavia’. It argues
     that these ‘facts’ were ‘revealed’ by its admission to the United
     Nations on 1 November 2000 and by [a letter from the United
     Nations Legal Counsel] of 8 December 2000.

     . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
        In the final version of its argument, the FRY claims that its admis-
     sion to the United Nations and the Legal Counsel’s letter of 8 Decem-
     ber 2000 simply ‘revealed’ two facts which had existed in 1996 but
     had been unknown at the time : that it was not then a party to the
     Statute of the Court and that it was not bound by the Genocide
     Convention.” (I.C.J. Reports 2003, p. 30, paras. 66 and 69.)

  110. The Court did not consider that the admission of the FRY to
membership was itself a “new fact”, since it occurred after the date of the
Judgment of which the revision was sought (ibid., para. 68). As to the
argument that facts on which an application for revision could be based
were “revealed” by the events of 2000, the Court ruled as follows :

        “In advancing this argument, the FRY does not rely on facts that
     existed in 1996. In reality, it bases its Application for revision on the
     legal consequences which it seeks to draw from facts subsequent to
     the Judgment which it is asking to have revised. Those conse-
     quences, even supposing them to be established, cannot be regarded
     as facts within the meaning of Article 61. The FRY’s argument can-
     not accordingly be upheld.” (Ibid., pp. 30-31, para. 69.)
   111. The Court therefore found the Application for revision inadmis-
sible. However, as the Court has observed in the cases concerning Legal-

49

89         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

ity of Use of Force, it did not, in its Judgment on the Application for
revision,
     “regard the alleged ‘decisive facts’ specified by Serbia and Montene-
     gro as ‘facts that existed in 1996’ for the purpose of Article 61. The
     Court therefore did not have to rule on the question whether ‘the
     legal consequences’ could indeed legitimately be deduced from the
     later facts ; in other words, it did not have to say whether it was cor-
     rect that Serbia and Montenegro had not been a party to the Statute
     or to the Genocide Convention in 1996.” (Legality of Use of Force
     (Serbia and Montenegro v. Belgium), Preliminary Objections, Judg-
     ment, I.C.J. Reports 2004, p. 313, para. 87.)
   112. In a subsequent paragraph of the 2003 Judgment on the Applica-
tion for revision of the 1996 Judgment, the Court had stated :
        “It follows from the foregoing that it has not been established that
     the request of the FRY is based upon the discovery of ‘some fact’
     which was ‘when the judgment was given, unknown to the Court
     and also to the party claiming revision’. The Court therefore con-
     cludes that one of the conditions for the admissibility of an applica-
     tion for revision prescribed by paragraph 1 of Article 61 of the Stat-
     ute has not been satisfied.” (I.C.J. Reports 2003, p. 31, para. 72.)
In its 2004 decisions in the Legality of Use of Force cases the Court
further commented on this finding :
        “The Court thus made its position clear that there could have
     been no retroactive modification of the situation in 2000, which
     would amount to a new fact, and that therefore the conditions of
     Article 61 were not satisfied. This, however, did not entail any find-
     ing by the Court, in the revision proceedings, as to what that situa-
     tion actually was.” (Preliminary Objections, Judgment, I.C.J.
     Reports 2004, p. 314, para. 89.)
   113. For the purposes of the present case, it is thus clear that the Judg-
ment of 2003 on the Application by the FRY for revision, while binding
between the parties, and final and without appeal, did not contain any
finding on the question whether or not that State had actually been a
Member of the United Nations in 1993. The question of the status of the
FRY in 1993 formed no part of the issues upon which the Court pro-
nounced judgment when dismissing that Application.

                                    *   *
                    (5) The Principle of Res Judicata
  114. The Court will now consider the principle of res judicata, and its
application to the 1996 Judgment in this case. The Applicant asserts that
the 1996 Judgment, whereby the Court found that it had jurisdiction

50

90          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

under the Genocide Convention, “enjoys the authority of res judicata
and is not susceptible of appeal” and that “any ruling whereby the Court
reversed the 1996 Judgment . . . would be incompatible both with the res
judicata principle and with Articles 59, 60 and 61 of the Statute”. The
Applicant submits that, like its judgments on the merits, “the Court’s
decisions on jurisdiction are res judicata”. It further observes that, pur-
suant to Article 60 of the Statute, the Court’s 1996 Judgment is “final and
without appeal” subject only to the possibility of a request for interpreta-
tion and revision ; and the FRY’s request for revision was rejected by the
Court in its Judgment of 3 February 2003. The Respondent contends that
jurisdiction once upheld may be challenged by new objections ; and con-
siders that this does not contravene the principle of res judicata or the
wording of Article 79 of the Rules of Court. It emphasizes “the right and
duty of the Court to act proprio motu” to examine its jurisdiction, men-
tioned in the case of the Appeal Relating to the Jurisdiction of the ICAO
Council (India v. Pakistan) (see paragraph 118 below), and contends
that the Court cannot “forfeit” that right by not having itself raised the
issue in the preliminary objections phase.

   115. There is no dispute between the Parties as to the existence of the
principle of res judicata even if they interpret it differently as regards
judgments deciding questions of jurisdiction. The fundamental character
of that principle appears from the terms of the Statute of the Court and
the Charter of the United Nations. The underlying character and pur-
poses of the principle are reflected in the judicial practice of the Court.
That principle signifies that the decisions of the Court are not only bind-
ing on the parties, but are final, in the sense that they cannot be reopened
by the parties as regards the issues that have been determined, save by
procedures, of an exceptional nature, specially laid down for that pur-
pose. Article 59 of the Statute, notwithstanding its negative wording, has
at its core the positive statement that the parties are bound by the deci-
sion of the Court in respect of the particular case. Article 60 of the Stat-
ute provides that the judgment is final and without appeal ; Article 61
places close limits of time and substance on the ability of the parties to
seek the revision of the judgment. The Court stressed those limits in 2003
when it found inadmissible the Application made by Serbia and Monte-
negro for revision of the 1996 Judgment in the Application for Revision
case (I.C.J. Reports 2003, p. 12, para. 17).

   116. Two purposes, one general, the other specific, underlie the prin-
ciple of res judicata, internationally as nationally. First, the stability of
legal relations requires that litigation come to an end. The Court’s func-
tion, according to Article 38 of its Statute, is to “decide”, that is, to bring
to an end, “such disputes as are submitted to it”. Secondly, it is in the
interest of each party that an issue which has already been adjudicated in
favour of that party be not argued again. Article 60 of the Statute articu-

51

91         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

lates this finality of judgments. Depriving a litigant of the benefit of a
judgment it has already obtained must in general be seen as a breach of
the principles governing the legal settlement of disputes.

   117. It has however been suggested by the Respondent that a distinc-
tion may be drawn between the application of the principle of res judi-
cata to judgments given on the merits of a case, and judgments deter-
mining the Court’s jurisdiction, in response to preliminary objections ;
specifically, the Respondent contends that “decisions on preliminary
objections do not and cannot have the same consequences as decisions on
the merits”. The Court will however observe that the decision on ques-
tions of jurisdiction, pursuant to Article 36, paragraph 6, of the Statute,
is given by a judgment, and Article 60 of the Statute provides that “[t]he
judgment is final and without appeal”, without distinguishing between
judgments on jurisdiction and admissibility, and judgments on the merits.
In its Judgment of 25 March 1999 on the request for interpretation of the
Judgment of 11 June 1998 in the case of the Land and Maritime Bound-
ary between Cameroon and Nigeria, the Court expressly recognized that
the 1998 Judgment, given on a number of preliminary objections to juris-
diction and admissibility, constituted res judicata, so that the Court
could not consider a submission inconsistent with that judgment (Judg-
ment, I.C.J. Reports 1999 (I), p. 39, para. 16). Similarly, in its Judgment
of 3 February 2003 in the Application for Revision case, the Court, when
it began by examining whether the conditions for the opening of the revi-
sion procedure, laid down by Article 61 of the Statute, were satisfied, un-
doubtedly recognized that an application could be made for revision of a
judgment on preliminary objections ; this could in turn only derive from a
recognition that such a judgment is “final and without appeal”. Further-
more, the contention put forward by the Respondent would signify that
the principle of res judicata would not prevent a judgment dismissing a
preliminary objection from remaining open to further challenge indefi-
nitely, while a judgment upholding such an objection, and putting an end
to the case, would in the nature of things be final and determinative as
regards that specific case.

  118. The Court recalls that, as it has stated in the case of the Appeal
Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), it
“must however always be satisfied that it has jurisdiction, and must if
necessary go into that matter proprio motu” (Judgment, I.C.J. Reports
1972, p. 52, para. 13). That decision in its context (in a case in which
there was no question of reopening a previous decision of the Court) does
not support the Respondent’s contention. It does not signify that juris-
dictional decisions remain reviewable indefinitely, nor that the Court
may, proprio motu or otherwise, reopen matters already decided with the
force of res judicata. The Respondent has argued that there is a principle
that “an international court may consider or reconsider the issue of juris-

52

92          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

diction at any stage of the proceedings”. It has referred in this connection
both to the dictum just cited from the Appeal Relating to the Jurisdiction
of the ICAO Council (India v. Pakistan), and to the Corfu Channel
(United Kingdom v. Albania) case. It is correct that the Court, having in
the first phase of that case rejected Albania’s preliminary objection to
jurisdiction, and having decided that proceedings on the merits were to
continue (Preliminary Objection, Judgment, I.C.J. Reports 1947-1948,
p. 15), did at the merits stage consider and rule on a challenge to its juris-
diction, in particular whether it had jurisdiction to assess compensation
(I.C.J. Reports 1949, pp. 23-26 ; 171). But no reconsideration at all by the
Court of its earlier Judgment was entailed in this because, following that
earlier Judgment, the Parties had concluded a special agreement sub-
mitting to the Court, inter alia, the question of compensation. The
later challenge to jurisdiction concerned only the scope of the jurisdiction
conferred by that subsequent agreement.

   119. The Respondent also invokes certain international conventions
and the rules of other international tribunals. It is true that the European
Court of Human Rights may reject, at any stage of the proceedings, an
application which it considers inadmissible ; and the International Crimi-
nal Court may, in exceptional circumstances, permit the admissibility of a
case or the jurisdiction of the Court to be challenged after the commence-
ment of the trial. However, these specific authorizations in the instru-
ments governing certain other tribunals reflect their particular admissi-
bility procedures, which are not identical with the procedures of the
Court in the field of jurisdiction. They thus do not support the view that
there exists a general principle which would apply to the Court, whose
Statute not merely contains no such provision, but declares, in Article 60,
the res judicata principle without exception. The Respondent has also
cited certain jurisprudence of the European Court of Human Rights, and
an arbitral decision of the German-Polish Mixed Arbitral Tribunal
(von Tiedemann case) ; but, in the view of the Court, these too, being
based on their particular facts, and the nature of the jurisdictions involved,
do not indicate the existence of a principle of sufficient generality and
weight to override the clear provisions of the Court’s Statute, and the
principle of res judicata.

   120. This does not however mean that, should a party to a case believe
that elements have come to light subsequent to the decision of the Court
which tend to show that the Court’s conclusions may have been based on
incorrect or insufficient facts, the decision must remain final, even if it is
in apparent contradiction to reality. The Statute provides for only one
procedure in such an event : the procedure under Article 61, which offers
the possibility for the revision of judgments, subject to the restrictions
stated in that Article. In the interests of the stability of legal relations,
those restrictions must be rigorously applied. As noted above (para-

53

93          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

graph 110) the FRY’s Application for revision of the 1996 Judgment in
this case was dismissed, as not meeting the conditions of Article 61. Sub-
ject only to this possibility of revision, the applicable principle is res judi-
cata pro veritate habetur, that is to say that the findings of a judgment
are, for the purposes of the case and between the parties, to be taken as
correct, and may not be reopened on the basis of claims that doubt has
been thrown on them by subsequent events.

                                     *   *
(6) Application of the Principle of Res Judicata to the 1996 Judgment

   121. In the light of these considerations, the Court reverts to the effect
and significance of the 1996 Judgment. That Judgment was essentially
addressed, so far as questions of jurisdiction were concerned, to the ques-
tion of the Court’s jurisdiction under the Genocide Convention. It
resolved in particular certain questions that had been raised as to the
status of Bosnia and Herzegovina in relation to the Convention ; as
regards the FRY, the Judgment stated simply as follows :
     “the former Socialist Federal Republic of Yugoslavia . . . signed the
     Genocide Convention on 11 December 1948 and deposited its instru-
     ment of ratification, without reservation, on 29 August 1950. At the
     time of the proclamation of the Federal Republic of Yugoslavia, on
     27 April 1992, a formal declaration was adopted on its behalf to the
     effect that :
           ‘The Federal Republic of Yugoslavia, continuing the State,
        international legal and political personality of the Socialist Fed-
        eral Republic of Yugoslavia, shall strictly abide by all the commit-
        ments that the Socialist Federal Republic of Yugoslavia assumed
        internationally.’

        This intention thus expressed by Yugoslavia to remain bound by
     the international treaties to which the former Yugoslavia was party
     was confirmed in an official Note of 27 April 1992 from the Perma-
     nent Mission of Yugoslavia to the United Nations, addressed to the
     Secretary-General. The Court observes, furthermore, that it has not
     been contested that Yugoslavia was party to the Genocide Conven-
     tion. Thus, Yugoslavia was bound by the provisions of the Conven-
     tion on the date of the filing of the Application in the present case,
     namely, on 20 March 1993.” (Application of the Convention on the
     Prevention and Punishment of the Crime of Genocide (Bosnia and
     Herzegovina v. Yugoslavia) Preliminary Objections, Judgment,
     I.C.J. Reports 1996 (II), p. 610, para. 17.)

54

94         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

   122. Nothing was stated in the 1996 Judgment about the status of the
FRY in relation to the United Nations, or the question whether it could
participate in proceedings before the Court ; for the reasons already men-
tioned above (paragraph 106), both Parties had chosen to refrain from
asking for a decision on these matters. The Court however considers it
necessary to emphasize that the question whether a State may properly
come before the Court, on the basis of the provisions of the Statute,
whether it be classified as a matter of capacity to be a party to the pro-
ceedings or as an aspect of jurisdiction ratione personae, is a matter
which precedes that of jurisdiction ratione materiae, that is, whether that
State has consented to the settlement by the Court of the specific dispute
brought before it. The question is in fact one which the Court is bound to
raise and examine, if necessary, ex officio, and if appropriate after noti-
fication to the parties. Thus if the Court considers that, in a particular
case, the conditions concerning the capacity of the parties to appear
before it are not satisfied, while the conditions of its jurisdiction
ratione materiae are, it should, even if the question has not been raised by
the parties, find that the former conditions are not met, and conclude
that, for that reason, it could not have jurisdiction to decide the merits.

   123. The operative part of a judgment of the Court possesses the force
of res judicata. The operative part of the 1996 Judgment stated, in para-
graph 47 (2) (a), that the Court found “that, on the basis of Article IX of
the Convention on the Prevention and Punishment of the Crime of
Genocide, it has jurisdiction to decide upon the dispute”. That jurisdic-
tion is thus established with the full weight of the Court’s judicial author-
ity. For a party to assert today that, at the date the 1996 Judgment was
given, the Court had no power to give it, because one of the parties can
now be seen to have been unable to come before the Court is, for the
reason given in the preceding paragraph, to call in question the force as
res judicata of the operative clause of the Judgment. At first sight, there-
fore, the Court need not examine the Respondent’s objection to jurisdic-
tion based on its contention as to its lack of status in 1993.

   124. The Respondent has however advanced a number of arguments
tending to show that the 1996 Judgment is not conclusive on the matter,
and the Court will now examine these. The passage just quoted from the
1996 Judgment is of course not the sole provision of the operative clause
of that Judgment : as, the Applicant has noted, the Court first dismissed
seriatim the specific preliminary objections raised (and not withdrawn)
by the Respondent ; it then made the finding quoted in paragraph 123
above ; and finally it dismissed certain additional bases of jurisdiction
invoked by the Applicant. The Respondent suggests that, for the pur-
poses of applying the principle of res judicata to a judgment of this kind
on preliminary objections, the operative clause (dispositif) to be taken
into account and given the force of res judicata is the decision rejecting
specified preliminary objections, rather than “the broad ascertainment

55

95          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

upholding jurisdiction”. The Respondent has drawn attention to the pro-
visions of Article 79, paragraph 7, of the 1978 Rules of Court, which pro-
vides that the judgment on preliminary objections shall, in respect of each
objection “either uphold the objection, reject it, or declare that the objec-
tion does not possess, in the circumstances of the case, an exclusively pre-
liminary character”. The Respondent suggests therefore that only the
clauses of a judgment on preliminary objections that are directed to these
ends have the force of res judicata, which is, it contends, consistent with
the view that new objections may be raised subsequently.

   125. The Court does not however consider that it was the purpose of
Article 79 of the Rules of Court to limit the extent of the force of res judi-
cata attaching to a judgment on preliminary objections, nor that, in the
case of such judgment, such force is necessarily limited to the clauses of
the dispositif specifically rejecting particular objections. There are many
examples in the Court’s jurisprudence of decisions on preliminary objec-
tions which contain a general finding that the Court has jurisdiction, or
that the application is admissible, as the case may be ; and it would be
going too far to suppose that all of these are necessarily superfluous con-
clusions. In the view of the Court, if any question arises as to the scope of
res judicata attaching to a judgment, it must be determined in each case
having regard to the context in which the judgment was given (cf. Appli-
cation for Revision and Interpretation of the Judgment of 24 Febru-
ary 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan
Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J.
Reports 1985, pp. 218-219, para. 48).
   126. For this purpose, in respect of a particular judgment it may be
necessary to distinguish between, first, the issues which have been decided
with the force of res judicata, or which are necessarily entailed in the
decision of those issues ; secondly any peripheral or subsidiary matters, or
obiter dicta ; and finally matters which have not been ruled upon at all.
Thus an application for interpretation of a judgment under Article 60 of
the Statute may well require the Court to settle “[a] difference of opinion
[between the parties] as to whether a particular point has or has not been
decided with binding force” (Interpretation of Judgments Nos. 7 and 8
(Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J. Series A, No. 13,
pp. 11-12). If a matter has not in fact been determined, expressly or by
necessary implication, then no force of res judicata attaches to it ; and a
general finding may have to be read in context in order to ascertain
whether a particular matter is or is not contained in it.
   127. In particular, the fact that a judgment may, in addition to reject-
ing specific preliminary objections, contain a finding that “the Court has
jurisdiction” in the case does not necessarily prevent subsequent exami-
nation of any jurisdictional issues later arising that have not been resolved,
with the force of res judicata, by such judgment. The Parties have each
referred in this connection to the successive decisions in the Corfu Chan-

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96          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

nel case, which the Court has already considered above (paragraph 118).
Mention may also be made of the judgments on the merits in the two
cases concerning Fisheries Jurisdiction (United Kingdom v. Iceland )
(Federal Republic of Germany v. Iceland) (I.C.J. Reports 1974, p. 20,
para. 42 ; pp. 203-204, para. 74), which dealt with minor issues of jurisdic-
tion despite an express finding of jurisdiction in previous judgments
(I.C.J. Reports 1973, p. 22, para. 46 ; p. 66, para. 46). Even where the
Court has, in a preliminary judgment, specifically reserved certain mat-
ters of jurisdiction for later decision, the judgment may nevertheless con-
tain a finding that “the Court has jurisdiction” in the case, this being
understood as being subject to the matters reserved (see Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 1984, p. 442, para. 113 (1) (c), and pp. 425-426, para. 76 ; cf.
also, in connection with an objection to admissibility, Questions of Inter-
pretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United
Kingdom) (Libyan Arab Jamahiriya v. United States of America), I.C.J.
Reports 1998, p. 29, para. 51, and pp. 30-31, paras. 53 (2) (b) and 53 (3) ;
p. 134, para. 50, and p. 156, paras. 53 (2) (b) and 53 (3)).

   128. On the other hand, the fact that the Court has in these past cases
dealt with jurisdictional issues after having delivered a judgment on juris-
diction does not support the contention that such a judgment can be
reopened at any time, so as to permit reconsideration of issues already
settled with the force of res judicata. The essential difference between
the cases mentioned in the previous paragraph and the present case is this :
the jurisdictional issues examined at a late stage in those cases were such
that the decision on them would not contradict the finding of jurisdiction
made in the earlier judgment. In the Fisheries Jurisdiction cases, the
issues raised related to the extent of the jurisdiction already established in
principle with the force of res judicata ; in the Military and Paramilitary
Activities case, the Court had clearly indicated in the 1984 Judgment that
its finding in favour of jurisdiction did not extend to a definitive ruling on
the interpretation of the United States reservation to its optional clause
declaration. By contrast, the contentions of the Respondent in the present
case would, if upheld, effectively reverse the 1996 Judgment ; that indeed
is their purpose.

  129. The Respondent has contended that the issue whether the FRY
had access to the Court under Article 35 of the Statute has in fact never
been decided in the present case, so that no barrier of res judicata would
prevent the Court from examining that issue at the present stage of the

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97         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

proceedings. It has drawn attention to the fact that when commenting on
the 1996 Judgment, in its 2004 Judgments in the cases concerning the
Legality of Use of Force, the Court observed that “[t]he question of the
status of the Federal Republic of Yugoslavia in relation to Article 35 of
the Statute was not raised and the Court saw no reason to examine it”
(see, for example, Legality of Use of Force (Serbia and Montenegro v.
Belgium), I.C.J. Reports 2004, p. 311, para. 82), and that “in its pro-
nouncements in incidental proceedings” in the present case, the Court
“did not commit itself to a definitive position on the issue of the legal
status of the Federal Republic of Yugoslavia in relation to the Charter
and the Statute” (ibid., pp. 308-309, para. 74).

   130. That does not however signify that in 1996 the Court was
unaware of the fact that the solution adopted in the United Nations to
the question of continuation of the membership of the SFRY “[was] not
free from legal difficulties”, as the Court had noted in its Order of 8 April
1993 indicating provisional measures in the case (I.C.J. Reports 1993,
p. 14, para. 18 ; above, paragraph 105). The FRY was, at the time of
the proceedings on its preliminary objections culminating in the 1996
Judgment, maintaining that it was the continuator State of the SFRY.
As the Court indicated in its Judgments in the cases concerning the
Legality of Use of Force,

        “No specific assertion was made in the Application [of 1993, in the
     present case] that the Court was open to Serbia and Montenegro
     under Article 35, paragraph 1, of the Statute of the Court, but it was
     later made clear that the Applicant claimed to be a Member of the
     United Nations and thus a party to the Statute of the Court, by
     virtue of Article 93, paragraph 1, of the Charter, at the time of filing
     of the Application . . . [T]his position was expressly stated in the
     Memorial filed by Serbia and Montenegro on 4 January 2000 . . .”
     (Legality of Use of Force (Serbia and Montenegro v. Belgium), Pre-
     liminary Objections, Judgment, I.C.J. Reports 2004, p. 299, para. 47.)

The question whether the FRY was a continuator or a successor State of
the SFRY was mentioned in the Memorial of Bosnia and Herzegovina.
The view of Bosnia and Herzegovina was that, while the FRY was not a
Member of the United Nations, as a successor State of the SFRY which
had expressly declared that it would abide by the international commit-
ments of the SFRY, it was nevertheless a party to the Statute. It is also
essential, when examining the text of the 1996 Judgment, to take note of
the context in which it was delivered, in particular as regards the contem-
porary state of relations between the Respondent and the United Nations,
as recounted in paragraphs 88 to 99 above.

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98         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  131. The “legal difficulties” referred to were finally dissipated when in
2000 the FRY abandoned its former insistence that it was the continua-
tor of the SFRY, and applied for membership in the United Nations
(paragraph 98 above). As the Court observed in its 2004 Judgments in
the cases concerning the Legality of Use of Force,

     “the significance of this new development in 2000 is that it has clari-
     fied the thus far amorphous legal situation concerning the status of
     the Federal Republic of Yugoslavia vis-à-vis the United Nations. It
     is in that sense that the situation that the Court now faces in relation
     to Serbia and Montenegro is manifestly different from that which it
     faced in 1999. If, at that time, the Court had had to determine defini-
     tively the status of the Applicant vis-à-vis the United Nations, its
     task of giving such a determination would have been complicated by
     the legal situation, which was shrouded in uncertainties relating to
     that status. However, from the vantage point from which the Court
     now looks at the legal situation, and in light of the legal conse-
     quences of the new development since 1 November 2000, the Court
     is led to the conclusion that Serbia and Montenegro was not a Mem-
     ber of the United Nations, and in that capacity a State party to the
     Statute of the International Court of Justice, at the time of filing its
     Application to institute the present proceedings before the Court on
     29 April 1999.” (Legality of Use of Force (Serbia and Montenegro v.
     Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004,
     pp. 310-311, para. 79.)

As the Court here recognized, in 1999 — and even more so in 1996 — it
was by no means so clear as the Court found it to be in 2004 that the
Respondent was not a Member of the United Nations at the relevant
time. The inconsistencies of approach expressed by the various United
Nations organs are apparent from the passages quoted in paragraphs 91
to 96 above.
   132. As already noted, the legal complications of the position of the
Respondent in relation to the United Nations were not specifically men-
tioned in the 1996 Judgment. The Court stated, as mentioned in para-
graph 121 above, that “Yugoslavia was bound by the provisions of the
[Genocide] Convention on the date of the filing of the Application in the
present case” (Application of the Convention on the Prevention and Pun-
ishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugosla-
via), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 610,
para. 17), and found that “on the basis of Article IX of the Convention
on the Prevention and Punishment of the Crime of Genocide, it has juris-
diction to adjudicate upon the dispute” (ibid., p. 623, para. 47 (2) (a)).
Since, as observed above, the question of a State’s capacity to be a party
to proceedings is a matter which precedes that of jurisdiction ratione mate-
riae, and one which the Court must, if necessary, raise ex officio (see

59

99          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

paragraph 122 above), this finding must as a matter of construction be
understood, by necessary implication, to mean that the Court at that
time perceived the Respondent as being in a position to participate in
cases before the Court. On that basis, it proceeded to make a finding on
jurisdiction which would have the force of res judicata. The Court does
not need, for the purpose of the present proceedings, to go behind that
finding and consider on what basis the Court was able to satisfy itself on
the point. Whether the Parties classify the matter as one of “access to the
Court” or of “jurisdiction ratione personae”, the fact remains that the
Court could not have proceeded to determine the merits unless the
Respondent had had the capacity under the Statute to be a party to pro-
ceedings before the Court.
   133. In the view of the Court, the express finding in the 1996 Judgment
that the Court had jurisdiction in the case ratione materiae, on the basis
of Article IX of the Genocide Convention, seen in its context, is a finding
which is only consistent, in law and logic, with the proposition that, in
relation to both Parties, it had jurisdiction ratione personae in its com-
prehensive sense, that is to say, that the status of each of them was such
as to comply with the provisions of the Statute concerning the capacity of
States to be parties before the Court. As regards Bosnia and Herze-
govina, there was no question but that it was a party to the Statute at the
date of filing its Application instituting proceedings ; and in relation to the
Convention, the Court found that it “could . . . become a party to the
Convention” from the time of its admission to the United Nations (I.C.J.
Reports 1996 (II), p. 611, para. 19), and had in fact done so. As regards
the FRY, the Court found that it “was bound by the provisions of the
Convention”, i.e. was a party thereto, “on the date of the filing of the
Application” (ibid., p. 610, para. 17) ; in this respect the Court took note
of the declaration made by the FRY on 27 April 1992, set out in para-
graph 89 above, whereby the FRY “continuing the State, international
legal and political personality” of the SFRY, declared that it would
“strictly abide by” the international commitments of the SFRY. The
determination by the Court that it had jurisdiction under the Genocide
Convention is thus to be interpreted as incorporating a determination
that all the conditions relating to the capacity of the Parties to appear
before it had been met.

   134. It has been suggested by the Respondent that the Court’s finding
of jurisdiction in the 1996 Judgment was based merely upon an assump-
tion : an assumption of continuity between the SFRY and the FRY.
It has drawn attention to passages, already referred to above (para-
graph 129), in the Judgments in the Legality of Use of Force cases, to the
effect that in 1996 the Court saw no reason to examine the question of
access, and that, in its pronouncements in incidental proceedings, the
Court did not commit itself to a definitive position on the issue of the
legal status of the Respondent.
   135. That the FRY had the capacity to appear before the Court in

60

100         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

accordance with the Statute was an element in the reasoning of the
1996 Judgment which can — and indeed must — be read into the Judg-
ment as a matter of logical construction. That element is not one which
can at any time be reopened and re-examined, for the reasons already
stated above. As regards the passages in the 2004 Judgments relied on by
the Respondent, it should be borne in mind that the concern of the Court
was not then with the scope of res judicata of the 1996 Judgment, since in
any event such res judicata could not extend to the proceedings in the
cases that were then before it, between different parties. It was simply
appropriate in 2004 for the Court to consider whether there was an
expressly stated finding in another case that would throw light on the
matters before it. No such express finding having been shown to exist, the
Court in 2004 did not, as it has in the present case, have to go on to con-
sider what might be the unstated foundations of a judgment given in
another case, between different parties.
   136. The Court thus considers that the 1996 Judgment contained a
finding, whether it be regarded as one of jurisdiction ratione personae, or
as one anterior to questions of jurisdiction, which was necessary as a
matter of logical construction, and related to the question of the FRY’s
capacity to appear before the Court under the Statute. The force of
res judicata attaching to that judgment thus extends to that particular
finding.
   137. However it has been argued by the Respondent that even were
that so,
      “the fundamental nature of access as a precondition for the exercise
      of the Court’s judicial function means that positive findings on
      access cannot be taken as definitive and final until the final judgment
      is rendered in proceedings, because otherwise it would be possible
      that the Court renders its final decision with respect to a party over
      which it cannot exercise [its] judicial function. In other words, access
      is so fundamental that, until the final judgment, it overrides the prin-
      ciple of res judicata. Thus, even if the 1996 Judgment had made a
      finding on access, quod non, that would not be a bar for the Court to
      re-examine this issue until the end of the proceedings.”

A similar argument advanced by the Respondent is based on the prin-
ciple that the jurisdiction of the Court derives from a treaty, namely
the Statute of the Court ; the Respondent questions whether the Statute
could have endowed the 1996 Judgment with any effects at all, since the
Respondent was, it alleges, not a party to the Statute. Counsel for the
Respondent argued that
        “Today it is known that in 1996 when the decision on preliminary
      objections was rendered, the Respondent was not a party to the
      Statute. Thus, there was no foothold, Articles 36 (6), 59, and 60 did

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101         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      not represent a binding treaty provision providing a possible basis
      for deciding on jurisdiction with res judicata effects.”

   138. It appears to the Court that these contentions are inconsistent
with the nature of the principle of res judicata. That principle signifies
that once the Court has made a determination, whether on a matter of
the merits of a dispute brought before it, or on a question of its own
jurisdiction, that determination is definitive both for the parties to the
case, in respect of the case (Article 59 of the Statute), and for the Court
itself in the context of that case. However fundamental the question of
the capacity of States to be parties in cases before the Court may be, it
remains a question to be determined by the Court, in accordance with
Article 36, paragraph 6, of the Statute, and once a finding in favour of
jurisdiction has been pronounced with the force of res judicata, it is not
open to question or re-examination, except by way of revision under
Article 61 of the Statute. There is thus, as a matter of law, no possibility
that the Court might render “its final decision with respect to a party
over which it cannot exercise its judicial function”, because the question
whether a State is or is not a party subject to the jurisdiction of the Court
is one which is reserved for the sole and authoritative decision of the
Court.
   139. Counsel for the Respondent contended further that, in the cir-
cumstances of the present case, reliance on the res judicata principle
“would justify the Court’s ultra vires exercise of its judicial functions con-
trary to the mandatory requirements of the Statute”. However, the
operation of the “mandatory requirements of the Statute” falls to be
determined by the Court in each case before it ; and once the Court has
determined, with the force of res judicata, that it has jurisdiction, then for
the purposes of that case no question of ultra vires action can arise, the
Court having sole competence to determine such matters under the Stat-
ute. For the Court res judicata pro veritate habetur, and the judicial truth
within the context of a case is as the Court has determined it, subject only
to the provision in the Statute for revision of judgments. This result
is required by the nature of the judicial function, and the universally
recognized need for stability of legal relations.

                                    *   *
                  (7) Conclusion : Jurisdiction Affirmed
   140. The Court accordingly concludes that, in respect of the conten-
tion that the Respondent was not, on the date of filing of the Application
instituting proceedings, a State having the capacity to come before the
Court under the Statute, the principle of res judicata precludes any
reopening of the decision embodied in the 1996 Judgment. The Respondent

62

102         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

has however also argued that the 1996 Judgment is not res judicata as to
the further question whether the FRY was, at the time of institution of
proceedings, a party to the Genocide Convention, and has sought to
show that at that time it was not, and could not have been, such a party.
The Court however considers that the reasons given above for holding
that the 1996 Judgment settles the question of jurisdiction in this case
with the force of res judicata are applicable a fortiori as regards this con-
tention, since on this point the 1996 Judgment was quite specific, as it
was not on the question of capacity to come before the Court. The Court
does not therefore find it necessary to examine the argument of the
Applicant that the failure of the Respondent to advance at the time the
reasons why it now contends that it was not a party to the Genocide
Convention might raise considerations of estoppel, or forum prorogatum
(cf. paragraphs 85 and 101 above). The Court thus concludes that, as
stated in the 1996 Judgment, it has jurisdiction, under Article IX of the
Genocide Convention, to adjudicate upon the dispute brought before it
by the Application filed on 20 March 1993. It follows from the above that
the Court does not find it necessary to consider the questions, extensively
addressed by the Parties, of the status of the Respondent under the
Charter of the United Nations and the Statute of the Court, and its posi-
tion in relation to the Genocide Convention at the time of the filing
of the Application.

                                     *
   141. There has been some reference in the Parties’ arguments before
the Court to the question whether Article 35, paragraphs 1 and 2, of the
Statute apply equally to applicants and to respondents. This matter,
being one of interpretation of the Statute, would be one for the Court to
determine. However, in the light of the conclusion that the Court has
reached as to the res judicata status of the 1996 decision, it does not find
at present the necessity to do so.

                              * * *
 IV. THE APPLICABLE LAW : THE CONVENTION ON THE PREVENTION AND
              PUNISHMENT OF THE CRIME OF GENOCIDE

                       (1) The Convention in Brief
  142. The Contracting Parties to the Convention, adopted on 9 Decem-
ber 1948, offer the following reasons for agreeing to its text :

        “The Contracting Parties,
        Having considered the declaration made by the General Assembly
      of the United Nations in its resolution 96 (I) dated 11 Decem-
      ber 1946 that genocide is a crime under international law, contrary

63

103         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      to the spirit and aims of the United Nations and condemned by the
      civilized world,
         Recognizing that at all periods of history genocide has inflicted
      great losses on humanity, and
         Being convinced that, in order to liberate mankind from such an
      odious scourge, international co-operation is required,
         Hereby agree as hereinafter provided . . .”
   143. Under Article I “[t]he Contracting Parties confirm that genocide,
whether committed in time of peace or in time of war, is a crime under
international law which they undertake to prevent and to punish”.
Article II defines genocide in these terms :
        “In the present Convention, genocide means any of the following
      acts committed with intent to destroy, in whole or in part, a national,
      ethnical, racial or religious group, as such :

      (a) Killing members of the group ;
      (b) Causing serious bodily or mental harm to members of the
          group ;
      (c) Deliberately inflicting on the group conditions of life calculated
          to bring about its physical destruction in whole or in part ;
      (d) Imposing measures intended to prevent births within the group ;
      (e) Forcibly transferring children of the group to another group.”
Article III provides as follows :
        “The following acts shall be punishable :
      (a) Genocide ;
      (b) Conspiracy to commit genocide ;
      (c) Direct and public incitement to commit genocide ;
      (d) Attempt to commit genocide ;
      (e) Complicity in genocide.”
  144. According to Article IV, persons committing any of those acts
shall be punished whether they are constitutionally responsible rulers,
public officials or private individuals. Article V requires the parties to
enact the necessary legislation to give effect to the Convention, and, in
particular, to provide effective penalties for persons guilty of genocide or
other acts enumerated in Article III. Article VI provides that

      “[p]ersons charged with genocide or any of the other acts enumer-
      ated in article III shall be tried by a competent tribunal of the State
      in the territory of which the act was committed, or by such interna-
      tional penal tribunal as may have jurisdiction with respect to those
      Contracting Parties which shall have accepted its jurisdiction”.
Article VII provides for extradition.

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104         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  145. Under Article VIII
         “Any Contracting Party may call upon the competent organs of
      the United Nations to take such action under the Charter of the
      United Nations as they consider appropriate for the prevention and
      suppression of acts of genocide or any of the other acts enumerated
      in Article III.”
  146. Article IX provides for certain disputes to be submitted to the
Court :
         “Disputes between the Contracting Parties relating to the interpre-
      tation, application or fulfilment of the present Convention, including
      those relating to the responsibility of a State for genocide or for any
      of the other acts enumerated in Article III, shall be submitted to the
      International Court of Justice at the request of any of the parties to
      the dispute.”
The remaining ten Articles are final clauses dealing with such matters as
parties to the Convention and its entry into force.

   147. The jurisdiction of the Court in this case is based solely on
Article IX of the Convention. All the other grounds of jurisdiction
invoked by the Applicant were rejected in the 1996 Judgment on juris-
diction (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 Judg-
ment and, if it did not, on the matters over which the Court has juris-
diction 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 obligations under peremp-
tory norms, or of obligations which protect essential humanitarian
values, and which may be owed erga omnes.

   148. As it has in other cases, the Court recalls the fundamental distinc-
tion 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. The fact
that there is not such a court or tribunal does not mean that the obliga-
tions do not exist. They retain their validity and legal force. States are
required to fulfil their obligations under international law, including
international humanitarian law, and they remain responsible for acts
contrary to international law which are attributable to them (e.g. case
concerning Armed Activities on the Territory of the Congo (New Appli-

65

105         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

cation : 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdic-
tion of the Court and Admissibility of the Application, Judgment, I.C.J.
Reports 2006, pp. 52-53, para. 127).

   149. The jurisdiction of the Court is founded on Article IX of the Con-
vention, and the disputes subject to that jurisdiction are those “relating 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 committed, to deter-
mine 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 responsibility of States for internationally
wrongful acts.

                                     *   *
      (2) The Court’s 1996 Decision about the Scope and Meaning of
                               Article IX
   150. According to the Applicant, the Court in 1996 at the preliminary
objections stage decided that it had jurisdiction under Article IX of the
Convention to adjudicate upon the responsibility of the respondent State,
as indicated in that Article, “for genocide or any of the other acts
enumerated in article III”, and that that reference “does not exclude any
form of State responsibility”. The issue, it says, is res judicata. The
Respondent supports a narrower interpretation of the Convention : the
Court’s jurisdiction is confined to giving a declaratory judgment relating
to breaches of the duties to prevent and punish the commission of geno-
cide by individuals.
   151. The Respondent accepts that the first, wider, interpretation “was
preferred by the majority of the Court in the preliminary objections
phase” and quotes the following passage in the Judgment :
         “The Court now comes to the second proposition advanced by
      Yugoslavia [in support of one of its preliminary objections], regard-
      ing the type of State responsibility envisaged in Article IX of the
      Convention. According to Yugoslavia, that Article would only cover
      the responsibility flowing from the failure of a State to fulfil its
      obligations of prevention and punishment as contemplated by
      Articles V, VI and VII ; on the other hand, the responsibility of a
      State for an act of genocide perpetrated by the State itself would
      be excluded from the scope of the Convention.
         The Court would observe that the reference to Article IX to ‘the
      responsibility of a State for genocide or for any of the other acts enu-
      merated in Article III’, does not exclude any form of State responsi-
      bility.
         Nor is the responsibility of a State for acts of its organs excluded

66

106          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      by Article IV of the Convention, which contemplates the commission
      of an act of genocide by ‘rulers’ or ‘public officials’.

         In the light of the foregoing, the Court considers that it must reject
      the fifth preliminary objection of Yugoslavia. It would moreover observe
      that it is sufficiently apparent from the very terms of that objection that
      the Parties not only differ with respect to the facts of the case, their
      imputability and the applicability to them of the provisions of the Geno-
      cide Convention, but are moreover in disagreement with respect to
      the meaning and legal scope of several of those provisions, including
      Article IX. For the Court, there is accordingly no doubt that there
      exists a dispute between them relating to ‘the interpretation, application
      or fulfilment of the . . . Convention, including . . . the responsibility of
      a State for genocide . . .’, according to the form of words employed by
      that latter provision (cf. Applicability of the Obligation to Arbitrate
      under Section 21 of the United Nations Headquarters Agreement of
      26 June 1947, Advisory Opinion, I.C.J. Reports 1988, pp. 27-32).” (Appli-
      cation of the Convention on the Prevention and Punishment of the Crime
      of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objec-
      tions, Judgment, I.C.J. Reports 1996 (II), pp. 616-617, paras. 32-33 ;
      emphasis now added to 1996 text.)
The Applicant relies in particular on the sentences in paragraph 32 which
have been emphasized in the above quotation. The Respondent submits
that
      “this expression of opinion is of marked brevity and is contingent
      upon the dismissal of the preliminary objection based upon the exist-
      ence or otherwise of a dispute relating to the interpretation of the
      Genocide Convention. The interpretation adopted in this provi-
      sional mode by the Court is not buttressed by any reference to the
      substantial preparatory work of the Convention.
         In the circumstances, there is no reason of principle or considera-
      tion of common sense indicating that the issue of interpretation is no
      longer open.”
While submitting that the Court determined the issue and spoke emphati-
cally on the matter in 1996 the Applicant also says that this present phase
of the case
      “will provide an additional opportunity for this Court to rule on
      [the] important matter, not only for the guidance of the Parties here
      before you, but for the benefit of future generations that should not
      have to fear the immunity of States from responsibility for their
      genocidal acts”.
   152. The Court has already examined above the question of the author-
ity of res judicata attaching to the 1996 Judgment, and indicated that it
cannot reopen issues decided with that authority. Whether or not the
issue now raised by the Respondent falls in that category, the Court

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107        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

observes that the final part of paragraph 33 of that Judgment, quoted
above, must be taken as indicating that “the meaning and legal scope” of
Article IX and of other provisions of the Convention remain in dispute.
In particular a dispute “exists” about whether the only obligations of the
Contracting Parties for the breach of which they may be held responsible
under the Convention are to legislate, and to prosecute or extradite, or
whether the obligations extend to the obligation not to commit genocide
and the other acts enumerated in Article III. That dispute “exists” and
was left by the Court for resolution at the merits stage. In these circum-
stances, and taking into account the positions of the Parties, the Court
will determine at this stage whether the obligations of the Parties under
the Convention do so extend. That is to say, the Court will decide
“the meaning and legal scope” of several provisions of the Convention,
including Article IX with its reference to “the responsibility of a State
for genocide or any of the other acts enumerated in Article III”.

                                    *   *
      (3) The Court’s 1996 Decision about the Territorial Scope of
                           the Convention
   153. A second issue about the res judicata effect of the 1996 Judgment
concerns the territorial limits, if any, on the obligations of the States
parties to prevent and punish genocide. In support of one of its prelimi-
nary objections the Respondent argued that it did not exercise jurisdic-
tion over the Applicant’s territory at the relevant time. In the final sen-
tence of its reasons for rejecting this argument the Court said this : “[t]he
Court notes that the obligation each State thus has to prevent and to
punish the crime of genocide is not territorially limited by the Conven-
tion” (I.C.J. Reports 1996 (II), p. 616, para. 31).

  154. The Applicant suggests that the Court in that sentence ruled that
the obligation extends without territorial limit. The Court does not state
the obligation in that positive way. The Court does not say that the obli-
gation is “territorially unlimited by the Convention”. Further, earlier in
the paragraph, it had quoted from Article VI (about the obligation of
any State in the territory of which the act was committed to prosecute) as
“the only provision relevant to” territorial “problems” related to the
application of the Convention. The quoted sentence is therefore to be
understood as relating to the undertaking stated in Article I. The Court
did not in 1996 rule on the territorial scope of each particular obligation
arising under the Convention. Accordingly the Court has still to rule on
that matter. It is not res judicata.

                                    *   *
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108         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

             (4) The Obligations Imposed by the Convention
                      on the Contracting Parties

   155. The Applicant, in the words of its Agent, contends that “[t]his
case is about State responsibility and seeks to establish the responsibili-
ties of a State which, through its leadership, through its organs, commit-
ted the most brutal violations of one of the most sacred instruments of
international law”. The Applicant has emphasized that in its view, the
Genocide Convention “created a universal, treaty-based concept of State
responsibility”, and that “[i]t is State responsibility for genocide that this
legal proceeding is all about”. It relies in this respect on Article IX of the
Convention, which, it argues, “quite explicitly impose[s] on States a direct
responsibility themselves not to commit genocide or to aid in the com-
mission of genocide”. As to the obligation of prevention under Article I,
a breach of that obligation, according to the Applicant, “is established —
it might be said is ‘eclipsed’ — by the fact that [the Respondent] is itself
responsible for the genocide committed ; . . . a State which commits geno-
cide has not fulfilled its commitment to prevent it” (emphasis in the origi-
nal). The argument moves on from alleged breaches of Article I to “vio-
lations [by the Respondent] of its obligations under Article III . . . to
which express reference is made in Article IX, violations which stand at
the heart of our case. This fundamental provision establishes the obliga-
tions whose violation engages the responsibility of States parties.” It fol-
lows that, in the contention of the Applicant, the Court has jurisdiction
under Article IX over alleged violations by a Contracting Party of those
obligations.

  156. The Respondent contends to the contrary that
      “the Genocide Convention does not provide for the responsibility of
      States for acts of genocide as such. The duties prescribed by the
      Convention relate to ‘the prevention and punishment of the crime of
      genocide’ when this crime is committed by individuals : and the pro-
      visions of Articles V and VI [about enforcement and prescription] . . .
      make this abundantly clear.”

It argues that the Court therefore does not have jurisdiction ratione
materiae under Article IX ; and continues :
      “[t]hese provisions [Articles I, V, VI and IX] do not extend to the
      responsibility of a Contracting Party as such for acts of genocide but
      [only] to responsibility for failure to prevent or to punish acts of
      genocide committed by individuals within its territory or . . . its
      control”.
The sole remedy in respect of that failure would, in the Respondent’s
view, be a declaratory judgment.

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109         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  157. As a subsidiary argument, the Respondent also contended that

      “for a State to be responsible under the Genocide Convention, the
      facts must first be established. As genocide is a crime, it can only be
      established in accordance with the rules of criminal law, under which
      the first requirement to be met is that of individual responsibility.
      The State can incur responsibility only when the existence of geno-
      cide has been established beyond all reasonable doubt. In addition,
      it must then be shown that the person who committed the genocide
      can engage the responsibility of the State . . .”
(This contention went on to mention responsibility based on breach of
the obligation to prevent and punish, matters considered later in this
Judgment.)
   158. The Respondent has in addition presented what it refers to as
“alternative arguments concerning solely State responsibility for breaches
of Articles II and III”. Those arguments addressed the necessary condi-
tions, especially of intent, as well as of attribution. When presenting
those alternative arguments, counsel for the Respondent repeated the
principal submission set out above that “the Convention does not suggest
in any way that States themselves can commit genocide”.

   159. The Court notes that there is no disagreement between the Parties
that the reference in Article IX to disputes about “the responsibility of a
State” as being among the disputes relating to the interpretation, applica-
tion or fulfilment of the Convention which come within the Court’s juris-
diction, indicates that provisions of the Convention do impose obliga-
tions on States in respect of which they may, in the event of breach, incur
responsibility. Articles V, VI and VII requiring legislation, in particular
providing effective penalties for persons guilty of genocide and the other
acts enumerated in Article III, and for the prosecution and extradition of
alleged offenders are plainly among them. Because those provisions regu-
lating punishment also have a deterrent and therefore a preventive effect
or purpose, they could be regarded as meeting and indeed exhausting the
undertaking to prevent the crime of genocide stated in Article I and men-
tioned in the title. On that basis, in support of the Respondent’s principal
position, that Article would rank as merely hortatory, introductory or
purposive and as preambular to those specific obligations. The remaining
specific provision, Article VIII about competent organs of the United
Nations taking action, may be seen as completing the system by support-
ing both prevention and suppression, in this case at the political level
rather than as a matter of legal responsibility.

  160. The Court observes that what obligations the Convention imposes
upon the parties to it depends on the ordinary meaning of the terms of

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110         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

the Convention read in their context and in the light of its object and
purpose. To confirm the meaning resulting from that process or to
remove ambiguity or obscurity or a manifestly absurd or unreasonable
result, the supplementary means of interpretation to which recourse may
be had include the preparatory work of the Convention and the circum-
stances of its conclusion. Those propositions, reflected in Articles 31
and 32 of the Vienna Convention on the Law of Treaties, are well recog-
nized as part of customary international law : see Legal Consequences of
the Construction of a Wall in Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004, p. 174, para. 94 ; case concerning Avena
and Other Mexican Nationals (Mexico v. United States of America),
Judgment, I.C.J. Reports 2004, p. 48, para. 83 ; LaGrand (Germany v.
United States of America), Judgment, I.C.J. Reports 2001, p. 501,
para. 99 ; and Sovereignty over Pulau Ligitan and Pulau Sipadan (Indo-
nesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 645, para. 37, and
the other cases referred to in those decisions.
   161. To determine what are the obligations of the Contracting Parties
under the Genocide Convention, the Court will begin with the terms of
its Article I. It contains two propositions. The first is the affirmation that
genocide is a crime under international law. That affirmation is to be
read in conjunction with the declaration that genocide is a crime under
international law, unanimously adopted by the General Assembly two
years earlier in its resolution 96 (I), and referred to in the Preamble to the
Convention (paragraph 142, above). The affirmation recognizes the exist-
ing requirements of customary international law, a matter emphasized by
the Court in 1951 :

         “The origins of the Convention show that it was the intention of
      the United Nations to condemn and punish genocide as ‘a crime
      under international law’ involving a denial of the right of existence
      of entire human groups, a denial which shocks the conscience of
      mankind and results in great losses to humanity, and which is con-
      trary to moral law and to the spirit and aims of the United Nations
      (Resolution 96 (I) of the General Assembly, December 11th 1946).
      The first consequence arising from this conception is that the prin-
      ciples underlying the Convention are principles which are recognized
      by civilized nations as binding on States, even without any conven-
      tional obligation. A second consequence is the universal character
      both of the condemnation of genocide and of the co-operation
      required ‘in order to liberate mankind from such an odious scourge’
      (Preamble to the Convention) . . .
         The objects of such a convention must also be considered. The
      Convention was manifestly adopted for a purely humanitarian and
      civilizing purpose. It is indeed difficult to imagine a convention that
      might have this dual character to a greater degree, since its object on
      the one hand is to safeguard the very existence of certain human

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111         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      groups and on the other to confirm and endorse the most elementary
      principles of morality.” (Reservations to the Convention on the Pre-
      vention and Punishment of the Crime of Genocide, Advisory Opinion,
      I.C.J. Reports 1951, p. 23.)

Later in that Opinion, the Court referred to “the moral and humanitar-
ian principles which are its basis” (ibid., p. 24). In earlier phases of the
present case the Court has also recalled resolution 96 (I) (I.C.J. Reports
1993, p. 23 ; see also pp. 348 and 440) and has quoted the 1951 statement
(I.C.J. Reports 1996 (II), p. 616). The Court reaffirmed the 1951 and
1996 statements in its Judgment of 3 February 2006 in the case concern-
ing Armed Activities on the Territory of the Congo (New Application
2002) (Democratic Republic of the Congo v. Rwanda), paragraph 64,
when it added that the norm prohibiting genocide was assuredly a per-
emptory norm of international law (jus cogens).

   162. Those characterizations of the prohibition on genocide and the
purpose of the Convention are significant for the interpretation of the
second proposition stated in Article I — the undertaking by the Con-
tracting Parties to prevent and punish the crime of genocide, and particu-
larly in this context the undertaking to prevent. Several features of that
undertaking are significant. The ordinary meaning of the word “under-
take” is to give a formal promise, to bind or engage oneself, to give a
pledge or promise, to agree, to accept an obligation. It is a word regularly
used in treaties setting out the obligations of the Contracting Parties (cf.,
for example, International Convention on the Elimination of All Forms
of Racial Discrimination (7 March 1966), Art. 2, para. 1 ; International
Covenant on Civil and Political Rights (16 December 1966), Art. 2,
para. 1, and 3, for example). It is not merely hortatory or purposive. The
undertaking is unqualified (a matter considered later in relation to the
scope of the obligation of prevention) ; and it is not to be read merely as
an introduction to later express references to legislation, prosecution and
extradition. Those features support the conclusion that Article I, in par-
ticular its undertaking to prevent, creates obligations distinct from those
which appear in the subsequent Articles. That conclusion is also sup-
ported by the purely humanitarian and civilizing purpose of the
Convention.

   163. The conclusion is confirmed by two aspects of the preparatory
work of the Convention and the circumstances of its conclusion as
referred to in Article 32 of the Vienna Convention. In 1947 the United
Nations General Assembly, in requesting the Economic and Social Coun-
cil to submit a report and a draft convention on genocide to the Third
Session of the Assembly, declared “that genocide is an international
crime entailing national and international responsibility on the part of
individuals and States” (A/RES/180 (II)). That duality of responsibilities

72

112         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

is also to be seen in two other associated resolutions adopted on the same
day, both directed to the newly established International Law Commis-
sion (hereinafter “the ILC”) : the first on the formulation of the Nurem-
berg principles, concerned with the rights (Principle V) and duties of
individuals, and the second on the draft declaration on the rights and
duties of States (A/RES/177 and A/RES/178 (II)). The duality of respon-
sibilities is further considered later in this Judgment (paragraphs 173-174).

   164. The second feature of the drafting history emphasizes the opera-
tive and non-preambular character of Article I. The Preamble to the
draft Convention, prepared by the Ad Hoc Committee on Genocide for
the Third Session of the General Assembly and considered by its Sixth
Committee, read in part as follows :
        “The High Contracting Parties
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
        Being convinced that the prevention and punishment of genocide
      requires international co-operation,
         Hereby agree to prevent and punish the crime as hereinafter pro-
      vided.”
The first Article would have provided “[g]enocide is a crime under inter-
national law whether committed in time of peace or in time of war”
(report of the Ad Hoc Committee on Genocide, 5 April to 10 May 1948,
United Nations, Official Records of the Economic and Social Council,
Seventh Session, Supplement No. 6, doc. E/794, pp. 2, 18).
   Belgium was of the view that the undertaking to prevent and punish
should be made more effective by being contained in the operative part of
the Convention rather than in the Preamble and proposed the following
Article I to the Sixth Committee of the General Assembly : “The High
Contracting Parties undertake to prevent and punish the crime of geno-
cide.” (United Nations doc. A/C.6/217.) The Netherlands then proposed
a new text of Article I combining the Ad Hoc Committee draft and the
Belgian proposal with some changes : “The High Contracting Parties
reaffirm that genocide is a crime under international law, which they
undertake to prevent and to punish, in accordance with the following
articles.” (United Nations docs. A/C.6/220 ; United Nations, Official
Records of the General Assembly, Third Session, Part I, Sixth Commit-
tee, Summary Records of the 68th meeting, p. 45.) The Danish
representative thought that Article I should be worded more effectively
and proposed the deletion of the final phrase — “in accordance with the
following articles” (ibid., p. 47). The Netherlands representative agreed
with that suggestion (ibid., pp. 49-50). After the USSR’s proposal to
delete Article I was rejected by 36 votes to 8 with 5 abstentions and its
proposal to transfer its various points to the Preamble was rejected by
40 votes to 8, and the phrase “whether committed in time of peace or of

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113        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

war” was inserted by 30 votes to 7 with 6 abstentions, the amended text
of Article I was adopted by 37 votes to 3 with 2 abstentions (ibid., pp. 51
and 53).

   165. For the Court both changes — the movement of the undertaking
from the Preamble to the first operative Article and the removal of the
linking clause (“in accordance with the following articles”) — confirm
that Article I does impose distinct obligations over and above those
imposed by other Articles of the Convention. In particular, the Contract-
ing Parties have a direct obligation to prevent genocide.

   166. The Court next considers whether the Parties are also under an
obligation, by virtue of the Convention, not to commit genocide them-
selves. It must be observed at the outset that such an obligation is not
expressly imposed by the actual terms of the Convention. The Applicant
has however advanced as its main argument that such an obligation is
imposed by Article IX, which confers on the Court jurisdiction over dis-
putes “including those relating to the responsibility of a State for geno-
cide or any of the other acts enumerated in Article III”. Since Article IX
is essentially a jurisdictional provision, the Court considers that it should
first ascertain whether the substantive obligation on States not to commit
genocide may flow from the other provisions of the Convention. Under
Article I the States parties are bound to prevent such an act, which it
describes as “a crime under international law”, being committed. The
Article does not expressis verbis require States to refrain from themselves
committing genocide. However, in the view of the Court, taking into
account the established purpose of the Convention, the effect of Article I
is to prohibit States from themselves committing genocide. Such a pro-
hibition follows, first, from the fact that the Article categorizes genocide
as “a crime under international law” : by agreeing to such a categoriza-
tion, the States parties must logically be undertaking not to commit the
act so described. Secondly, it follows from the expressly stated obligation
to prevent the commission of acts of genocide. That obligation requires
the States parties, inter alia, to employ the means at their disposal, in
circumstances to be described more specifically later in this Judgment,
to prevent persons or groups not directly under their authority from
committing an act of genocide or any of the other acts mentioned in
Article III. It would be paradoxical if States were thus under an obliga-
tion to prevent, so far as within their power, commission of genocide by
persons over whom they have a certain influence, but were not forbidden
to commit such acts through their own organs, or persons over whom
they have such firm control that their conduct is attributable to the State
concerned under international law. In short, the obligation to prevent geno-
cide necessarily implies the prohibition of the commission of genocide.

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114        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

   167. The Court accordingly concludes that Contracting Parties to the
Convention are bound not to commit genocide, through the actions of
their organs or persons or groups whose acts are attributable to them.
That conclusion must also apply to the other acts enumerated in
Article III. Those acts are forbidden along with genocide itself in the
list included in Article III. They are referred to equally with genocide in
Article IX and without being characterized as “punishable” ; and the
“purely humanitarian and civilizing purpose” of the Convention may be
seen as being promoted by the fact that States are subject to that full set
of obligations, supporting their undertaking to prevent genocide. It is
true that the concepts used in paragraphs (b) to (e) of Article III, and
particularly that of “complicity”, refer to well known categories of crimi-
nal law and, as such, appear particularly well adapted to the exercise
of penal sanctions against individuals. It would however not be in
keeping with the object and purpose of the Convention to deny that
the international responsibility of a State — even though quite different
in nature from criminal responsibility — can be engaged through one
of the acts, other than genocide itself, enumerated in Article III.

   168. The conclusion that the Contracting Parties are bound in this
way by the Convention not to commit genocide and the other acts enu-
merated in Article III is confirmed by one unusual feature of the wording
of Article IX. But for that unusual feature and the addition of the word
“fulfilment” to the provision conferring on the Court jurisdiction over
disputes as to the “interpretation and application” of the Convention (an
addition which does not appear to be significant in this case), Article IX
would be a standard dispute settlement provision.
   169. The unusual feature of Article IX is the phrase “including those
[disputes] relating to the responsibility of a State for genocide or any of
the other acts enumerated in Article III”. The word “including” tends to
confirm that disputes relating to the responsibility of Contracting Parties
for genocide, and the other acts enumerated in Article III to which it
refers, are comprised within a broader group of disputes relating to the
interpretation, application or fulfilment of the Convention. The respon-
sibility of a party for genocide and the other acts enumerated in
Article III arises from its failure to comply with the obligations imposed
by the other provisions of the Convention, and in particular, in the
present context, with Article III read with Articles I and II. According
to the English text of the Convention, the responsibility contemplated is
responsibility “for genocide” (in French, “responsabilité . . . en matière
de génocide”), not merely responsibility “for failing to prevent or
punish genocide”. The particular terms of the phrase as a whole
confirm that Contracting Parties may be responsible for genocide and
the other acts enumerated in Article III of the Convention.

                                    *
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115         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

   170. The Court now considers three arguments, advanced by the
Respondent which may be seen as contradicting the proposition that the
Convention imposes a duty on the Contracting Parties not to commit
genocide and the other acts enumerated in Article III. The first is that, as
a matter of general principle, international law does not recognize the
criminal responsibility of the State, and the Genocide Convention does
not provide a vehicle for the imposition of such criminal responsibility.
On the matter of principle the Respondent calls attention to the rejection
by the ILC of the concept of international crimes when it prepared the
final draft of its Articles on State Responsibility, a decision reflecting the
strongly negative reactions of a number of States to any such concept.
The Applicant accepts that general international law does not recognize
the criminal responsibility of States. It contends, on the specific issue,
that the obligation for which the Respondent may be held responsible, in
the event of breach, in proceedings under Article IX, is simply an obliga-
tion arising under international law, in this case the provisions of the
Convention. The Court observes that the obligations in question in this
case, arising from the terms of the Convention, and the responsibilities of
States that would arise from breach of such obligations, are obligations
and responsibilities under international law. They are not of a criminal
nature. This argument accordingly cannot be accepted.

   171. The second argument of the Respondent is that the nature of the
Convention is such as to exclude from its scope State responsibility for
genocide and the other enumerated acts. The Convention, it is said, is a
standard international criminal law convention focused essentially on the
criminal prosecution and punishment of individuals and not on the
responsibility of States. The emphasis of the Convention on the obliga-
tions and responsibility of individuals excludes any possibility of States
being liable and responsible in the event of breach of the obligations
reflected in Article III. In particular, it is said, that possibility cannot
stand in the face of the references, in Article III to punishment (of indi-
viduals), and in Article IV to individuals being punished, and the require-
ment, in Article V for legislation in particular for effective penalties for
persons guilty of genocide, the provision in Article VI for the prosecution
of persons charged with genocide, and requirement in Article VII for
extradition.

   172. The Court is mindful of the fact that the famous sentence in the
Nuremberg Judgment that “[c]rimes against international law are com-
mitted by men, not by abstract entities . . .” (Judgment of the Interna-
tional Military Tribunal, Trial of the Major War Criminals, 1947, Offi-
cial Documents, Vol. 1, p. 223) might be invoked in support of the
proposition that only individuals can breach the obligations set out in
Article III. But the Court notes that that Tribunal was answering the
argument that “international law is concerned with the actions of sov-

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116          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

ereign States, and provides no punishment for individuals” (Judgment of
the International Military Tribunal, op. cit., p. 222), and that thus States
alone were responsible under international law. The Tribunal rejected
that argument in the following terms : “[t]hat international law imposes
duties and liabilities upon individuals as well as upon States has long
been recognized” (ibid., p. 223 ; the phrase “as well as upon States” is
missing in the French text of the Judgment).

   173. The Court observes that that duality of responsibility continues
to be a constant feature of international law. This feature is reflected in
Article 25, paragraph 4, of the Rome Statute for the International Crimi-
nal Court, now accepted by 104 States : “No provision in this Statute
relating to individual criminal responsibility shall affect the responsibility
of States under international law.” The Court notes also that the ILC’s
Articles on the Responsibility of States for Internationally Wrongful Acts
(Annex to General Assembly resolution 56/83, 12 December 2001), to be
referred to hereinafter as “the ILC Articles on State Responsibility”,
affirm in Article 58 the other side of the coin : “These articles are without
prejudice to any question of the individual responsibility under interna-
tional law of any person acting on behalf of a State.” In its Commentary
on this provision, the Commission said :

         “Where crimes against international law are committed by State
      officials, it will often be the case that the State itself is responsible for
      the acts in question or for failure to prevent or punish them. In cer-
      tain cases, in particular aggression, the State will by definition be
      involved. Even so, the question of individual responsibility is in prin-
      ciple distinct from the question of State responsibility. The State is
      not exempted from its own responsibility for internationally wrong-
      ful conduct by the prosecution and punishment of the State officials
      who carried it out.” (ILC Commentary on the Draft Articles on
      Responsibility of States for Internationally Wrongful Acts, ILC
      Report A/56/10, 2001, Commentary on Article 58, para. 3.)

The Commission quoted Article 25, paragraph 4, of the Rome Statute,
and concluded as follows :
         “Article 58 . . . [makes] it clear that the Articles do not address the
      question of the individual responsibility under international law of
      any person acting on behalf of a State. The term ‘individual respon-
      sibility’ has acquired an accepted meaning in light of the Rome
      Statute and other instruments ; it refers to the responsibility of indi-
      vidual persons, including State officials, under certain rules of inter-
      national law for conduct such as genocide, war crimes and crimes
      against humanity.”

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117        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

   174. The Court sees nothing in the wording or the structure of the pro-
visions of the Convention relating to individual criminal liability which
would displace the meaning of Article I, read with paragraphs (a) to (e)
of Article III, so far as these provisions impose obligations on States dis-
tinct from the obligations which the Convention requires them to place
on individuals. Furthermore, the fact that Articles V, VI and VII focus
on individuals cannot itself establish that the Contracting Parties may
not be subject to obligations not to commit genocide and the other acts
enumerated in Article III.

   175. The third and final argument of the Respondent against the
proposition that the Contracting Parties are bound by the Convention
not to commit genocide is based on the preparatory work of the Conven-
tion and particularly of Article IX. The Court has already used part of
that work to confirm the operative significance of the undertaking in
Article I (see paragraphs 164 and 165 above), an interpretation already
determined from the terms of the Convention, its context and purpose.
   176. The Respondent, claiming that the Convention and in particular
Article IX is ambiguous, submits that the drafting history of the Conven-
tion, in the Sixth Committee of the General Assembly, shows that “there
was no question of direct responsibility of the State for acts of genocide”.
It claims that the responsibility of the State was related to the “key pro-
visions” of Articles IV-VI : the Convention is about the criminal respon-
sibility of individuals supported by the civil responsibility of States to
prevent and punish. This argument against any wider responsibility for
the Contracting Parties is based on the records of the discussion in the
Sixth Committee, and is, it is contended, supported by the rejection of
United Kingdom amendments to what became Articles IV and VI. Had
the first amendment been adopted, Article IV, concerning the punish-
ment of individuals committing genocide or any of the acts enumerated
in Article III, would have been extended by the following additional sen-
tence : “[Acts of genocide] committed by or on behalf of States or gov-
ernments constitute a breach of the present Convention.”(A/C.6/236 and
Corr. 1.) That amendment was defeated (United Nations, Official Records
of the General Assembly, Third Session, Part I, Sixth Committee, Sum-
mary Records of the 96th Meeting, p. 355). What became Article VI
would have been replaced by a provision conferring jurisdiction on the
Court if an act of genocide is or is alleged to be the act of a State or
government or its organs. The United Kingdom in response to objections
that the proposal was out of order (because it meant going back on a
decision already taken) withdrew the amendment in favour of the joint
amendment to what became Article IX, submitted by the United King-
dom and Belgium (ibid., 100th Meeting, p. 394). In speaking to that joint
amendment the United Kingdom delegate acknowledged that the debate
had clearly shown the Committee’s decision to confine what is now
Article VI to the responsibility of individuals (ibid., 100th Meeting,
p. 430). The United Kingdom/Belgium amendment would have added

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118         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

the words “including disputes relating to the responsibility of a State for
any of the acts enumerated in Articles II and IV [as the Convention
was then drafted]”. The United Kingdom delegate explained that
what was involved was civil responsibility, not criminal responsi-
bility (United Nations, Official Records of the General Assembly, op. cit.,
103rd Meeting, p. 440). A proposal to delete those words failed and the
provision was adopted (ibid., 104th Meeting, p. 447), with style changes
being made by the Drafting Committee.

  177. At a later stage a Belgium/United Kingdom/United States pro-
posal which would have replaced the disputed phrase by including “dis-
putes arising from a charge by a Contracting Party that the crime of
genocide or any other of the acts enumerated in article III has been com-
mitted within the jurisdiction of another Contracting Party” was ruled by
the Chairman of the Sixth Committee as a change of substance and
the Committee did not adopt the motion (which required a two-thirds
majority) for reconsideration (A/C.6/305). The Chairman gave the
following reason for his ruling which was not challenged :

      “it was provided in article IX that those disputes, among others,
      which concerned the responsibility of a State for genocide or for any
      of the acts enumerated in article III, should be submitted to the
      International Court of Justice. According to the joint amendment,
      on the other hand, the disputes would not be those which concerned
      the responsibility of the State but those which resulted from an accu-
      sation to the effect that the crime had been committed in the terri-
      tory of one of the contracting parties.” (United Nations, Official
      Records of the General Assembly, Third Session, Part I, Sixth Com-
      mittee, Summary Records of the 131st Meeting, p. 690.)
By that time in the deliberations of the Sixth Committee it was clear that
only individuals could be held criminally responsible under the draft
Convention for genocide. The Chairman was plainly of the view that the
Article IX, as it had been modified, provided for State responsibility for
genocide.
  178. In the view of the Court, two points may be drawn from the
drafting history just reviewed. The first is that much of it was concerned
with proposals supporting the criminal responsibility of States ; but those
proposals were not adopted. The second is that the amendment which
was adopted — to Article IX — is about jurisdiction in respect of the
responsibility of States simpliciter. Consequently, the drafting history
may be seen as supporting the conclusion reached by the Court in para-
graph 167 above.

  179. Accordingly, having considered the various arguments, the Court

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119        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

affirms that the Contracting Parties are bound by the obligation under
the Convention not to commit, through their organs or persons or
groups whose conduct is attributable to them, genocide and the other
acts enumerated in Article III. Thus if an organ of the State, or a person
or group whose acts are legally attributable to the State, commits any of
the acts proscribed by Article III of the Convention, the international
responsibility of that State is incurred.

                                   *   *
(5) Question Whether the Court May Make a Finding of Genocide by
   a State in the Absence of a Prior Conviction of an Individual for
                   Genocide by a Competent Court
   180. The Court observes that if a State is to be responsible because it
has breached its obligation not to commit genocide, it must be shown
that genocide as defined in the Convention has been committed. That will
also be the case with conspiracy under Article III, paragraph (b), and
complicity under Article III, paragraph (e) ; and, as explained below
(paragraph 431) for purposes of the obligation to prevent genocide. The
Respondent has raised the question whether it is necessary, as a matter of
law, for the Court to be able to uphold a claim of the responsibility of a
State for an act of genocide, or any other act enumerated in Article III,
that there should have been a finding of genocide by a court or tribunal
exercising criminal jurisdiction. According to the Respondent, the con-
dition sine qua non for establishing State responsibility is the prior
establishment, according to the rules of criminal law, of the individual
responsibility of a perpetrator engaging the State’s responsibility.

   181. The different procedures followed by, and powers available to,
this Court and to the courts and tribunals trying persons for criminal
offences, do not themselves indicate that there is a legal bar to the Court
itself finding that genocide or the other acts enumerated in Article III
have been committed. Under its Statute the Court has the capacity to
undertake that task, while applying the standard of proof appropriate to
charges of exceptional gravity (paragraphs 209-210 below). Turning to
the terms of the Convention itself, the Court has already held that it has
jurisdiction under Article IX to find a State responsible if genocide or
other acts enumerated in Article III are committed by its organs, or
persons or groups whose acts are attributable to it.

   182. Any other interpretation could entail that there would be no legal
recourse available under the Convention in some readily conceivable cir-
cumstances : genocide has allegedly been committed within a State by its
leaders but they have not been brought to trial because, for instance, they
are still very much in control of the powers of the State including the

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120        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

police, prosecution services and the courts and there is no international
penal tribunal able to exercise jurisdiction over the alleged crimes ; or the
responsible State may have acknowledged the breach. The Court accord-
ingly concludes that State responsibility can arise under the Convention
for genocide and complicity, without an individual being convicted of the
crime or an associated one.

                                    *   *
         (6) The Possible Territorial Limits of the Obligations
   183. The substantive obligations arising from Articles I and III are not
on their face limited by territory. They apply to a State wherever it may
be acting or may be able to act in ways appropriate to meeting the obli-
gations in question. The extent of that ability in law and fact is con-
sidered, so far as the obligation to prevent the crime of genocide is con-
cerned, in the section of the Judgment concerned with that obligation (cf.
paragraph 430 below). The significant relevant condition concerning the
obligation not to commit genocide and the other acts enumerated in
Article III is provided by the rules on attribution (paragraphs 379 ff.
below).
   184. The obligation to prosecute imposed by Article VI is by contrast
subject to an express territorial limit. The trial of persons charged with
genocide is to be in a competent tribunal of the State in the territory of
which the act was committed (cf. paragraph 442 below), or by an inter-
national penal tribunal with jurisdiction (paragraphs 443 ff. below).

                                    *   *
(7) The Applicant’s Claims in Respect of Alleged Genocide Committed
            Outside Its Territory against Non-Nationals
  185. In its final submissions the Applicant requests the Court to make
rulings about acts of genocide and other unlawful acts allegedly commit-
ted against “non-Serbs” outside its own territory (as well as within it) by
the Respondent. Insofar as that request might relate to non-Bosnian vic-
tims, it could raise questions about the legal interest or standing of the
Applicant in respect of such matters and the significance of the jus cogens
character of the relevant norms, and the erga omnes character of the rele-
vant obligations. For the reasons explained in paragraphs 368 and 369
below, the Court will not however need to address those questions of law.

                                    *   *
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121         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

             (8) The Question of Intent to Commit Genocide

  186. The Court notes that genocide as defined in Article II of the Con-
vention comprises “acts” and an “intent”. It is well established that the
acts —
      “(a) Killing members of the group ;
       (b) Causing serious bodily or mental harm to members of the
           group ;
       (c) Deliberately inflicting on the group conditions of life calcu-
           lated to bring about its physical destruction in whole or in
           part ;
       (d) Imposing measures intended to prevent births within the
           group ; [and]
       (e) Forcibly transferring children of the group to another
           group” —
themselves include mental elements. “Killing” must be intentional, as
must “causing serious bodily or mental harm”. Mental elements are
made explicit in paragraphs (c) and (d) of Article II by the words
“deliberately” and “intended”, quite apart from the implications of the
words “inflicting” and “imposing” ; and forcible transfer too requires
deliberate intentional acts. The acts, in the words of the ILC, are by their
very nature conscious, intentional or volitional acts (Commentary on
Article 17 of the 1996 Draft Code of Crimes against the Peace and
Security of Mankind, ILC Report 1996, Yearbook of the International
Law Commission, 1996, Vol. II, Part Two, p. 44, para. 5).

   187. In addition to those mental elements, Article II requires a further
mental element. It requires the establishment of the “intent to destroy, in
whole or in part, . . . [the protected] group, as such”. It is not enough to
establish, for instance in terms of paragraph (a), that deliberate unlawful
killings of members of the group have occurred. The additional intent
must also be established, and is defined very precisely. It is often referred
to as a special or specific intent or dolus specialis ; in the present Judg-
ment it will usually be referred to as the “specific intent (dolus specia-
lis)”. It is not enough that the members of the group are targeted because
they belong to that group, that is because the perpetrator has a discrimi-
natory intent. Something more is required. The acts listed in Article II
must be done with intent to destroy the group as such in whole or in part.
The words “as such” emphasize that intent to destroy the protected
group.
   188. The specificity of the intent and its particular requirements are
highlighted when genocide is placed in the context of other related crimi-
nal acts, notably crimes against humanity and persecution, as the Trial
Chamber of the International Criminal Tribunal for the former Yugosla-
via (hereinafter “ICTY” or “the Tribunal”) did in the Kupreškić et al.
case :

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122          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      “the mens rea requirement for persecution is higher than for ordi-
      nary crimes against humanity, although lower than for genocide. In
      this context the Trial Chamber wishes to stress that persecution as a
      crime against humanity is an offence belonging to the same genus as
      genocide. Both persecution and genocide are crimes perpetrated
      against persons that belong to a particular group and who are tar-
      geted because of such belonging. In both categories what matters is
      the intent to discriminate : to attack persons on account of their eth-
      nic, racial, or religious characteristics (as well as, in the case of per-
      secution, on account of their political affiliation). While in the case
      of persecution the discriminatory intent can take multifarious inhu-
      mane forms and manifest itself in a plurality of actions including
      murder, in the case of genocide that intent must be accompanied by
      the intention to destroy, in whole or in part, the group to which the
      victims of the genocide belong. Thus, it can be said that, from the
      viewpoint of mens rea, genocide is an extreme and most inhuman
      form of persecution. To put it differently, when persecution escalates
      to the extreme form of wilful and deliberate acts designed to destroy
      a group or part of a group, it can be held that such persecution
      amounts to genocide.” (IT-95-16-T, Judgment, 14 January 2000,
      para. 636.)

   189. The specific intent is also to be distinguished from other reasons
or motives the perpetrator may have. Great care must be taken in finding
in the facts a sufficiently clear manifestation of that intent.

                                     *   *
                     (9) Intent and “Ethnic Cleansing”
   190. The term “ethnic cleansing” has frequently been employed to
refer to the events in Bosnia and Herzegovina which are the subject of
this case ; see, for example, Security Council resolution 787 (1992), para. 2;
resolution 827 (1993), Preamble ; and the Report with that title attached
as Annex IV to the Final Report of the United Nations Commission of
Experts (S/1994/674/Add.2) (hereinafter “Report of the Commission of
Experts”). General Assembly resolution 47/121 referred in its Preamble
to “the abhorrent policy of ‘ethnic cleansing’, which is a form of geno-
cide”, as being carried on in Bosnia and Herzegovina. It will be conven-
ient at this point to consider what legal significance the expression may
have. It is in practice used, by reference to a specific region or area, to
mean “rendering an area ethnically homogeneous by using force or
intimidation to remove persons of given groups from the area”
(S/35374 (1993), para. 55, Interim Report by the Commission of Experts).
It does not appear in the Genocide Convention ; indeed, a proposal

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123        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

during the drafting of the Convention to include in the definition “measures
intended to oblige members of a group to abandon their homes in order
to escape the threat of subsequent ill-treatment” was not accepted (A/C.6/
234). It can only be a form of genocide within the meaning of the Con-
vention, if it corresponds to or falls within one of the categories of acts
prohibited by Article II of the Convention. Neither the intent, as a matter
of policy, to render an area “ethnically homogeneous”, nor the opera-
tions 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 dis-
placement of the members of a group, even if effected by force, is not
necessarily equivalent to destruction of that group, nor is such destruc-
tion an automatic consequence of the displacement. This is not to say
that acts described as “ethnic cleansing” may never constitute genocide, if
they are such as to be characterized as, for example, “deliberately inflict-
ing on the group conditions of life calculated to bring about its physical
destruction in whole or in part”, contrary to Article II, paragraph (c), of
the Convention, provided such action is carried out with the necessary
specific intent (dolus specialis), that is to say with a view to the destruc-
tion of the group, as distinct from its removal from the region. As the
ICTY has observed, while “there are obvious similarities between a geno-
cidal policy and the policy commonly known as ‘ethnic cleansing’” (Krstić,
IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 562), yet “[a]
clear distinction must be drawn between physical destruction and mere
dissolution of a group. The expulsion of a group or part of a group does
not in itself suffice for genocide.” (Stakić, IT-97-24-T, Trial Chamber
Judgment, 31 July 2003, para. 519.) In other words, whether a particular
operation described as “ethnic cleansing” amounts to genocide depends
on the presence or absence of acts listed in Article II of the Genocide
Convention, and of the intent to destroy the group as such. In fact, in the
context of the Convention, the term “ethnic cleansing” has no legal sig-
nificance of its own. That said, it is clear that acts of “ethnic cleansing”
may occur in parallel to acts prohibited by Article II of the Convention,
and may be significant as indicative of the presence of a specific intent
(dolus specialis) inspiring those acts.

                                    *   *

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124         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

                  (10) Definition of the Protected Group

   191. When examining the facts brought before the Court in support of
the accusations of the commission of acts of genocide, it is necessary to
have in mind the identity of the group against which genocide may be
considered to have been committed. The Court will therefore next con-
sider the application in this case of the requirement of Article II of the
Genocide Convention, as an element of genocide, that the proscribed acts
be “committed with intent to destroy, in whole or in part, a national, eth-
nical, racial or religious group, as such”. The Parties disagreed on aspects
of the definition of the “group”. The Applicant in its final submission
refers to “the non-Serb national, ethnical or religious group within, but
not limited to, the territory of Bosnia and Herzegovina, including in par-
ticular the Muslim population” (paragraph 66 above). It thus follows
what is termed the negative approach to the definition of the group in
question. The Respondent sees two legal problems with that formulation :

         “First, the group targeted is not sufficiently well defined as such,
      since, according to the Applicant’s allegation, that group consists of
      the non-Serbs, thus an admixture of all the individuals living in
      Bosnia and Herzegovina except the Serbs, but more particularly the
      Muslim population, which accounts for only a part of the non-Serb
      population. Second, the intent to destroy concerned only a part of
      the non-Serb population, but the Applicant failed to specify which
      part of the group was targeted.”
In addition to those issues of the negative definition of the group and its
geographic limits (or their lack), the Parties also discussed the choice
between subjective and objective approaches to the definition. The Parties
essentially agree that international jurisprudence accepts a combined
subjective-objective approach. The issue is not in any event significant on
the facts of this case and the Court takes it no further.

   192. While the Applicant has employed the negative approach to the
definition of a protected group, it places major, for the most part exclu-
sive, emphasis on the Bosnian Muslims as the group being targeted. The
Respondent, for instance, makes the point that the Applicant did not
mention the Croats in its oral arguments relating to sexual violence,
Srebrenica and Sarajevo, and that other groups including “the Jews,
Roma and Yugoslavs” were not mentioned. The Applicant does however
maintain the negative approach to the definition of the group in its
final submissions and the Court accordingly needs to consider it.
   193. The Court recalls first that the essence of the intent is to destroy
the protected group, in whole or in part, as such. It is a group which must
have particular positive characteristics — national, ethnical, racial or reli-
gious — and not the lack of them. The intent must also relate to the
group “as such”. That means that the crime requires an intent to destroy

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125        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

a collection of people who have a particular group identity. It is a matter
of who those people are, not who they are not. The etymology of the
word — killing a group — also indicates a positive definition ; and
Raphael Lemkin has explained that he created the word from the Greek
genos, meaning race or tribe, and the termination “-cide”, from the Latin
caedere, to kill (Axis Rule in Occupied Europe (1944), p. 79). In 1945 the
word was used in the Nuremberg indictment which stated that the
defendants “conducted deliberate and systematic genocide, viz., the exter-
mination of racial and national groups . . . in order to destroy particular
races and classes of people and national, racial or religious groups . . .”
(Indictment, Trial of the Major War Criminals before the International
Military Tribunal, Official Documents, Vol. 1, pp. 43 and 44). As the
Court explains below (paragraph 198), when part of the group is
targeted, that part must be significant enough for its destruction to have
an impact on the group as a whole. Further, each of the acts listed in
Article II require that the proscribed action be against members
of the “group”.

   194. The drafting history of the Convention confirms that a positive
definition must be used. Genocide as “the denial of the existence of entire
human groups” was contrasted with homicide, “the denial of the right to
live of individual human beings” by the General Assembly in its 1946 reso-
lution 96 (I) cited in the Preamble to the Convention. The drafters of the
Convention also gave close attention to the positive identification of
groups with specific distinguishing characteristics in deciding which
groups they would include and which (such as political groups) they
would exclude. The Court spoke to the same effect in 1951 in declaring as
an object of the Convention the safeguarding of “the very existence of
certain human groups” (Reservations to the Convention on the Prevention
and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J.
Reports 1951, p. 23). Such an understanding of genocide requires a posi-
tive identification of the group. The rejection of proposals to include
within the Convention political groups and cultural genocide also
demonstrates that the drafters were giving close attention to the positive
identification of groups with specific distinguishing well-established,
some said immutable, characteristics. A negatively defined group cannot
be seen in that way.

   195. The Court observes that the ICTY Appeals Chamber in the Sta-
kić case (IT-97-24-A, Judgment, 22 March 2006, paras. 20-28) also came
to the conclusion that the group must be defined positively, essentially for
the same reasons as the Court has given.

 196. Accordingly, the Court concludes that it should deal with the
matter on the basis that the targeted group must in law be defined posi-

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126        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

tively, and thus not negatively as the “non-Serb” population. The Appli-
cant has made only very limited reference to the non-Serb populations of
Bosnia and Herzegovina other than the Bosnian Muslims, e.g. the Croats.
The Court will therefore examine the facts of the case on the basis that
genocide may be found to have been committed if an intent to destroy
the Bosnian Muslims, as a group, in whole or in part, can be established.

  197. The Parties also addressed a specific question relating to the
impact of geographic criteria on the group as identified positively. The
question concerns in particular the atrocities committed in and around
Srebrenica in July 1995, and the question whether in the circumstances of
that situation the definition of genocide in Article II was satisfied so far
as the intent of destruction of the “group” “in whole or in part” require-
ment is concerned. This question arises because of a critical finding in the
Krstić case. In that case the Trial Chamber was “ultimately satisfied that
murders and infliction of serious bodily or mental harm were committed
with the intent to kill all the Bosnian Muslim men of military age at
Srebrenica” (IT-98-33, Judgment, 2 August 2001, para. 546). Those men
were systematically targeted whether they were civilians or soldiers (ibid.).
The Court addresses the facts of that particular situation later (para-
graphs 278-297). For the moment, it considers how as a matter of law the
“group” is to be defined, in territorial and other respects.

   198. In terms of that question of law, the Court refers to three matters
relevant to the determination of “part” of the “group” for the purposes
of Article II. In the first place, the intent must be to destroy at least a
substantial part of the particular group. That is demanded by the very
nature of the crime of genocide : since the object and purpose of the Con-
vention as a whole is to prevent the intentional destruction of groups, the
part targeted must be significant enough to have an impact on the group
as a whole. That requirement of substantiality is supported by consistent
rulings of the ICTY and the International Criminal Tribunal for Rwanda
(ICTR) and by the Commentary of the ILC to its Articles in the draft
Code of Crimes against the Peace and Security of Mankind (e.g. Krstić,
IT-98-33-A, Appeals Chamber Judgment, 19 April 2004, paras. 8-11 and
the cases of Kayishema, Byilishema, and Semanza there referred to ; and
Yearbook of the International Law Commission, 1996, Vol. II, Part Two,
p. 45, para. 8 of the Commentary to Article 17).

   199. Second, the Court observes that it is widely accepted that geno-
cide may be found to have been committed where the intent is to destroy
the group within a geographically limited area. In the words of the ILC,
“it is not necessary to intend to achieve the complete annihilation of a
group from every corner of the globe” (ibid.). The area of the perpetra-
tor’s activity and control are to be considered. As the ICTY Appeals

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127          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Chamber has said, and indeed as the Respondent accepts, the opportu-
nity available to the perpetrators is significant (Krstić, IT-98-33-A, Judg-
ment, 19 April 2004, para. 13). This criterion of opportunity must how-
ever be weighed against the first and essential factor of substantiality. It
may be that the opportunity available to the alleged perpetrator is so
limited that the substantiality criterion is not met. The Court observes
that the ICTY Trial Chamber has indeed indicated the need for caution,
lest this approach might distort the definition of genocide (Stakić, IT-
97-24-T, Judgment, 31 July 2003, para. 523). The Respondent, while not
challenging this criterion, does contend that the limit militates against the
existence of the specific intent (dolus specialis) at the national or State
level as opposed to the local level — a submission which, in the view of
the Court, relates to attribution rather than to the “group” requirement.

  200. A third suggested criterion is qualitative rather than quantitative.
The Appeals Chamber in the Krstić case put the matter in these carefully
measured terms :
         “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. In addition to the numeric size of the targeted portion, its
      prominence within the group can be a useful consideration. If a spe-
      cific part of the group is emblematic of the overall group, or is essen-
      tial to its survival, that may support a finding that the part qualifies
      as substantial within the meaning of Article 4 [of the Statute which
      exactly reproduces Article II of the Convention].” (IT-98-33-A, Judg-
      ment, 19 April 2004, para. 12 ; footnote omitted.)
Establishing the “group” requirement will not always depend on the sub-
stantiality requirement alone although it is an essential starting point. It
follows in the Court’s opinion that the qualitative approach cannot stand
alone. The Appeals Chamber in Krstić also expresses that view.

  201. The above list of criteria is not exhaustive, but, as just indicated,
the substantiality criterion is critical. They are essentially those stated by
the Appeals Chamber in the Krstić case, although the Court does give
this first criterion priority. Much will depend on the Court’s assessment
of those and all other relevant factors in any particular case.

                                    * * *
 V. QUESTIONS OF PROOF : BURDEN OF PROOF, THE STANDARD OF PROOF,
                         METHODS OF PROOF

  202. When turning to the facts of the dispute, the Court must note
that many allegations of fact made by the Applicant are disputed by the

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128         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Respondent. That is so notwithstanding increasing agreement between
the Parties on certain matters through the course of the proceedings. The
disputes relate to issues about the facts, for instance the number of rapes
committed by Serbs against Bosnian Muslims, and the day-to-day rela-
tionships between the authorities in Belgrade and the authorities in Pale,
and the inferences to be drawn from, or the evaluations to be made of,
facts, for instance about the existence or otherwise of the necessary
specific intent (dolus specialis) and about the attributability of the acts
of the organs of Republika Srpska and various paramilitary groups to the
Respondent. The allegations also cover a very wide range of activity
affecting many communities and individuals over an extensive area and
over a long period. They have already been the subject of many accounts,
official and non-official, by many individuals and bodies. The Parties
drew on many of those accounts in their pleadings and oral argument.

   203. Accordingly, before proceeding to an examination of the alleged
facts underlying the claim in this case, the Court first considers, in
this section of the Judgment, in turn the burden or onus of proof, the
standard of proof, and the methods of proof.
   204. On the burden or onus of proof, it is well established in general
that the applicant must establish its case and that a party asserting a fact
must establish it ; as the Court observed in the case of Military and Para-
military Activities in and against Nicaragua (Nicaragua v. United States
of America), “it is the litigant seeking to establish a fact who bears the
burden of proving it” (Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 1984, p. 437, para. 101). While the Applicant accepts that
approach as a general proposition, it contends that in certain respects the
onus should be reversed, especially in respect of the attributability of
alleged acts of genocide to the Respondent, given the refusal of the
Respondent to produce the full text of certain documents.
   205. The particular issue concerns the “redacted” sections of docu-
ments of the Supreme Defence Council of the Respondent, i.e. sections in
which parts of the text had been blacked out so as to be illegible. The
documents had been classified, according to the Co-Agent of the Respon-
dent, by decision of the Council as a military secret, and by a confidential
decision of the Council of Ministers of Serbia and Montenegro as a mat-
ter of national security interest. The Applicant contends that the Court
should draw its own conclusions from the failure of the Respondent to
produce complete copies of the documents. It refers to the power of the
Court, which it had invoked earlier (paragraph 44 above), to call for
documents under Article 49 of the Statute, which provides that “[f]ormal
note shall be taken of any refusal”. In the second round of oral argument
the Applicant’s Deputy Agent submitted that

      “Serbia and Montenegro should not be allowed to respond to our
      quoting the redacted SDC reports if it does not provide at the
      very same time the Applicant and the Court with copies of entirely

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129         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      unredacted versions of all the SDC shorthand records and of all of
      the minutes of the same. Otherwise, Serbia and Montenegro would
      have an overriding advantage over Bosnia and Herzegovina with
      respect to documents, which are apparently, and not in the last place
      in the Respondent’s eyes, of direct relevance to winning or losing
      the present case. We explicitly, Madam President, request the Court to
      instruct the Respondent accordingly.” (Emphasis in the original.)

   206. On this matter, the Court observes that the Applicant has exten-
sive documentation and other evidence available to it, especially from the
readily accessible ICTY records. It has made very ample use of it. In the
month before the hearings it submitted what must be taken to have been
a careful selection of documents from the very many available from the
ICTY. The Applicant called General Sir Richard Dannatt, who, drawing
on a number of those documents, gave evidence on the relationship
between the authorities in the Federal Republic of Yugoslavia and those
in the Republika Srpska and on the matter of control and instruction.
Although the Court has not agreed to either of the Applicant’s requests
to be provided with unedited copies of the documents, it has not failed to
note the Applicant’s suggestion that the Court may be free to draw its
own conclusions.
   207. On a final matter relating to the burden of proof, the Applicant
contends that the Court should draw inferences, notably about specific
intent (dolus specialis), from established facts, i.e., from what the Appli-
cant refers to as a “pattern of acts” that “speaks for itself”. The Court
considers that matter later in the Judgment (paragraphs 370-376 below).

   208. The Parties also differ on the second matter, the standard of
proof. The Applicant, emphasizing that the matter is not one of criminal
law, says that the standard is the balance of evidence or the balance of
probabilities, inasmuch as what is alleged is breach of treaty obligations.
According to the Respondent, the proceedings “concern the most serious
issues of State responsibility and . . . a charge of such exceptional gravity
against a State requires a proper degree of certainty. The proofs should
be such as to leave no room for reasonable doubt.”

   209. The Court has long recognized that claims against a State involv-
ing charges of exceptional gravity must be proved by evidence that is
fully conclusive (cf. Corfu Channel (United Kingdom v. Albania), Judg-
ment, I.C.J. Reports 1949, p. 17). The Court requires that it be fully con-
vinced that allegations made in the proceedings, that the crime of geno-
cide or the other acts enumerated in Article III have been committed,
have been clearly established. The same standard applies to the proof of
attribution for such acts.

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130         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

   210. In respect of the Applicant’s claim that the Respondent has
breached its undertakings to prevent genocide and to punish and extra-
dite persons charged with genocide, the Court requires proof at a high
level of certainty appropriate to the seriousness of the allegation.

   211. The Court now turns to the third matter — the method of proof.
The Parties submitted a vast array of material, from different sources, to
the Court. It included reports, resolutions and findings by various United
Nations organs, including the Secretary-General, the General Assembly,
the Security Council and its Commission of Experts, and the Commis-
sion on Human Rights, the Sub-Commission on the Prevention of Dis-
crimination and Protection of Minorities and the Special Rapporteur on
Human Rights in the former Yugoslavia ; documents from other inter-
governmental organizations such as the Conference for Security and Co-
operation in Europe ; documents, evidence and decisions from the ICTY ;
publications from governments ; documents from non-governmental
organizations ; media reports, articles and books. They also called wit-
nesses, experts and witness-experts (paragraphs 57-58 above).

  212. The Court must itself make its own determination of the facts
which are relevant to the law which the Applicant claims the Respondent
has breached. This case does however have an unusual feature. Many of
the allegations before this Court have already been the subject of the
processes and decisions of the ICTY. The Court considers their signifi-
cance later in this section of the Judgment.

   213. The assessment made by the Court of the weight to be given to a
particular item of evidence may lead to the Court rejecting the item as
unreliable, or finding it probative, as appears from the practice followed
for instance in the case concerning United States Diplomatic and Consu-
lar Staff in Tehran, Judgment, I.C.J. Reports 1980, pp. 9-10, paras. 11-
13 ; Military and Paramilitary Activities in and against Nicaragua (Nica-
ragua v. United States of America), Merits, Judgment, I.C.J. Reports
1986, pp. 39-41, paras. 59-73 ; and Armed Activities on the Territory of
the Congo (Democratic Republic of the Congo v. Uganda), Judgment,
I.C.J. Reports 2005, pp. 200-201, paras. 57-61. In the most recent case
the Court said this :

        “The Court will treat with caution evidentiary materials specially
      prepared for this case and also materials emanating from a single
      source. It will prefer contemporaneous evidence from persons with
      direct knowledge. It will give particular attention to reliable evidence
      acknowledging facts or conduct unfavourable to the State repre-
      sented by the person making them (Military and Paramilitary Activi-

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131         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      ties in and against Nicaragua (Nicaragua v. United States of
      America), Merits, Judgment, I.C.J. Reports 1986, p. 41, para. 64).
      The Court will also give weight to evidence that has not, even before
      this litigation, been challenged by impartial persons for the correct-
      ness of what it contains. The Court moreover notes that evidence
      obtained by examination of persons directly involved, and who were
      subsequently cross-examined by judges skilled in examination and
      experienced in assessing large amounts of factual information, some
      of it of a technical nature, merits special attention. The Court thus
      will give appropriate consideration to the Report of the Porter Com-
      mission, which gathered evidence in this manner. The Court further
      notes that, since its publication, there has been no challenge to the
      credibility of this Report, which has been accepted by both Parties.”
      (Armed Activities on the Territory of the Congo (Democratic Repub-
      lic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 35,
      para. 61. See also paras. 78-79, 114 and 237-242.)

   214. The fact-finding process of the ICTY falls within this formula-
tion, as “evidence obtained by examination of persons directly involved”,
tested by cross-examination, the credibility of which has not been chal-
lenged subsequently. The Court has been referred to extensive documen-
tation arising from the Tribunal’s processes, including indictments by the
Prosecutor, various interlocutory decisions by judges and Trial Cham-
bers, oral and written evidence, decisions of the Trial Chambers on guilt
or innocence, sentencing judgments following a plea agreement and
decisions of the Appeals Chamber.

  215. By the end of the oral proceedings the Parties were in a broad
measure of agreement on the significance of the ICTY material. The
Applicant throughout has given and gives major weight to that material.
At the written stage the Respondent had challenged the reliability of the
Tribunal’s findings, the adequacy of the legal framework under which it
operates, the adequacy of its procedures and its neutrality. At the stage of
the oral proceedings, its position had changed in a major way. In its
Agent’s words, the Respondent now based itself on the jurisprudence of
the Tribunal and had “in effect” distanced itself from the opinions about
the Tribunal expressed in its Rejoinder. The Agent was however careful
to distinguish between different categories of material :

        “[W]e do not regard all the material of the Tribunal for the former
      Yugoslavia as having the same relevance or probative value. We
      have primarily based ourselves upon the judgments of the Tribunal’s
      Trial and Appeals Chambers, given that only the judgments can be

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132         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      regarded as establishing the facts about the crimes in a credible
      way.”
And he went on to point out that the Tribunal has not so far, with the
exception of Srebrenica, held that genocide was committed in any of the
situations cited by the Applicant. He also called attention to the criti-
cisms already made by Respondent’s counsel of the relevant judgment
concerning General Krstić who was found guilty of aiding and abetting
genocide at Srebrenica.
   216. The Court was referred to actions and decisions taken at various
stages of the ICTY processes :
(1) The Prosecutor’s decision to include or not certain changes in an
    indictment ;
(2) The decision of a judge on reviewing the indictment to confirm it and
    issue an arrest warrant or not ;
(3) If such warrant is not executed, a decision of a Trial Chamber (of
    three judges) to issue an international arrest warrant, provided the
    Chamber is satisfied that there are reasonable grounds for believing
    that the accused has committed all or any of the crimes charged ;

(4) The decision of a Trial Chamber on the accused’s motion for acquit-
    tal at the end of the prosecution case ;

(5) The judgment of a Trial Chamber following the full hearings ;

(6) The sentencing judgment of a Trial Chamber following a guilty plea.

The Court was also referred to certain decisions of the Appeals Chamber.

  217. The Court will consider these stages in turn. The Applicant
placed some weight on indictments filed by the Prosecutor. But the claims
made by the Prosecutor in the indictments are just that — allegations
made by one party. They have still to proceed through the various phases
outlined earlier. The Prosecutor may, instead, decide to withdraw charges
of genocide or they may be dismissed at trial. Accordingly, as a general
proposition the inclusion of charges in an indictment cannot be given
weight. What may however be significant is the decision of the Prosecu-
tor, either initially or in an amendment to an indictment, not to include
or to exclude a charge of genocide.

   218. The second and third stages, relating to the confirmation of the
indictment, issues of arrest warrants and charges, are the responsibility of
the judges (one in the second stage and three in the third) rather than the
Prosecutor, and witnesses may also be called in the third, but the accused
is generally not involved. Moreover, the grounds for a judge to act are, at
the second stage, that a prima facie case has been established, and at the

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133        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

third, that reasonable grounds exist for belief that the accused has com-
mitted crimes charged.

   219. The accused does have a role at the fourth stage — motions for
acquittal made by the defence at the end of the prosecution’s case and
after the defence has had the opportunity to cross-examine the prosecu-
tion’s witnesses, on the basis that “there is no evidence capable of sup-
porting a conviction”. This stage is understood to require a decision, not
that the Chamber trying the facts would be satisfied beyond reasonable
doubt by the prosecution’s evidence (if accepted), but rather that it could
be so satisfied (Jelisić, IT-95-10-A, Appeals Chamber Judgment,
5 July 2001, para. 37). The significance of that lesser standard for present
purposes appears from one case on which the Applicant relied. The Trial
Chamber in August 2005 in Krajišnik dismissed the defence motion that
the accused who was charged with genocide and other crimes had no case
to answer (IT-00-39-T, transcript of 19 August 2005, pp. 17112-17132).
But following the full hearing the accused was found not guilty of geno-
cide nor of complicity in genocide. While the actus reus of genocide was
established, the specific intent (dolus specialis) was not (Trial Chamber
Judgment, 27 September 2006, paras. 867-869). Because the judge or the
Chamber does not make definitive findings at any of the four stages
described, the Court does not consider that it can give weight to those
rulings. The standard of proof which the Court requires in this case
would not be met.

   220. The processes of the Tribunal at the fifth stage, leading to a judg-
ment of the Trial Chamber following the full hearing are to be contrasted
with those earlier stages. The processes of the Tribunal leading to final
findings are rigorous. Accused are presumed innocent until proved guilty
beyond reasonable doubt. They are entitled to listed minimum guaran-
tees (taken from the International Covenant on Civil and Political Rights),
including the right to counsel, to examine witness against them, to obtain
the examination of witness on their behalf, and not to be compelled to
testify against themselves or to confess guilt. The Tribunal has powers to
require Member States of the United Nations to co-operate with it,
among other things, in the taking of testimony and the production of evi-
dence. Accused are provided with extensive pre-trial disclosure including
materials gathered by the prosecution and supporting the indictment, rele-
vant witness statements and the pre-trial brief summarizing the evidence
against them. The prosecutor is also to disclose exculpatory material to
the accused and to make available in electronic form the collections of
relevant material which the prosecution holds.

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134        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  221. In practice, now extending over ten years, the trials, many of
important military or political figures for alleged crimes committed over
long periods and involving complex allegations, usually last for months,
even years, and can involve thousands of documents and numerous
witnesses. The Trial Chamber may admit any relevant evidence which
has probative value. The Chamber is to give its reasons in writing and
separate and dissenting opinions may be appended.

  222. Each party has a right of appeal from the judgment of the Trial
Chamber to the Appeals Chamber on the grounds of error of law invali-
dating the decision or error of fact occasioning a miscarriage of justice.
The Appeals Chamber of five judges does not rehear the evidence, but it
does have power to hear additional evidence if it finds that it was not
available at trial, is relevant and credible and could have been a decisive
factor in the trial. It too is to give a reasoned opinion in writing to which
separate or dissenting opinions may be appended.

   223. In view of the above, the Court concludes that it should in prin-
ciple accept as highly persuasive relevant findings of fact made by the Tri-
bunal at trial, unless of course they have been upset on appeal. For the
same reasons, any evaluation by the Tribunal based on the facts as so
found for instance about the existence of the required intent, is also
entitled to due weight.

   224. There remains for consideration the sixth stage, that of senten-
cing judgments given following a guilty plea. The process involves a state-
ment of agreed facts and a sentencing judgment. Notwithstanding the
guilty plea the Trial Chamber must be satisfied that there is sufficient fac-
tual basis for the crime and the accused’s participation in it. It must also
be satisfied that the guilty plea has been made voluntarily, is informed
and is not equivocal. Accordingly the agreed statement and the senten-
cing judgment may when relevant be given a certain weight.

                                     *
   225. The Court will now comment in a general way on some of the
other evidence submitted to it. Some of that evidence has been produced
to prove that a particular statement was made so that the Party may
make use of its content. In many of these cases the accuracy of the docu-
ment as a record is not in doubt ; rather its significance is. That is often
the case for instance with official documents, such as the record of par-
liamentary bodies and budget and financial statements. Another instance
is when the statement was recorded contemporaneously on audio or
videotape. Yet another is the evidence recorded by the ICTY.

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135         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

   226. In some cases the account represents the speaker’s own know-
ledge of the fact to be determined or evaluated. In other cases the account
may set out the speaker’s opinion or understanding of events after they
have occurred and in some cases the account will not be based on direct
observation but may be hearsay. In fact the Parties rarely disagreed
about the authenticity of such material but rather about whether it was
being accurately presented (for instance with contention that passages
were being taken out of context) and what weight or significance should
be given to it.
   227. The Court was also referred to a number of reports from official
or independent bodies, giving accounts of relevant events. Their value
depends, among other things, on (1) the source of the item of evidence
(for instance partisan, or neutral), (2) the process by which it has been
generated (for instance an anonymous press report or the product of a
careful court or court-like process), and (3) the quality or character of the
item (such as statements against interest, and agreed or uncontested
facts).

   228. One particular instance is the comprehensive report, “The Fall of
Srebrenica”, which the United Nations Secretary-General submitted
in November 1999 to the General Assembly (United Nations doc. A/54/
549). It was prepared at the request of the General Assembly, and cov-
ered the events from the establishing by the Security Council of the “safe
area” on 16 April 1993 (Security Council resolution 819 (1993)) until the
endorsement by the Security Council on 15 December 1995 of the Day-
ton Agreement. Member States and others concerned had been encour-
aged to provide relevant information. The Secretary-General was in a
very good position to prepare a comprehensive report, some years after
the events, as appears in part from this description of the method of
preparation :

         “This report has been prepared on the basis of archival research
      within the United Nations system, as well as on the basis of inter-
      views with individuals who, in one capacity or another, participated
      in or had knowledge of the events in question. In the interest of gain-
      ing a clearer understanding of these events, I have taken the excep-
      tional step of entering into the public record information from the
      classified files of the United Nations. In addition, I would like to
      record my thanks to those Member States, organizations and indi-
      viduals who provided information for this report. A list of persons
      interviewed in this connection is attached as annex 1. While that list
      is fairly extensive, time, as well as budgetary and other constraints,
      precluded interviewing many other individuals who would be in a
      position to offer important perspectives on the subject at hand. In
      most cases, the interviews were conducted on a non-attribution
      basis to encourage as candid a disclosure as possible. I have also
      honoured the request of those individuals who provided informa-

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136         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      tion for this report on the condition that they not be identified.”
      (A/54/549, para. 8.)

  229. The chapter, “Fall of Srebrenica : 6-11 July 1995”, is preceded by
this note :
         “The United Nations has hitherto not publicly disclosed the full
      details of the attack carried out on Srebrenica from 6 to 11 July 1995.
      The account which follows has now been reconstructed mainly from
      reports filed at that time by Dutchbat and the United Nations mili-
      tary observers. The accounts provided have also been supplemented
      with information contained in the Netherlands report on the debrief-
      ing of Dutchbat, completed in October 1995, and by information
      provided by Bosniac, Bosnian Serb and international sources. In
      order to independently examine the information contained in vari-
      ous secondary sources published over the past four years, as well to
      corroborate key information contained in the Netherlands debrief-
      ing report, interviews were conducted during the preparation of this
      report with a number of key personnel who were either in Srebrenica
      at the time, or who were involved in decision-making at higher levels
      in the United Nations chain of command.” (A/54/549, Chap. VII,
      p. 57.)
The introductory note to the next chapter, “The Aftermath of the fall of
Srebrenica : 12-20 July 1995”, contains this description of the sources :

         “The following section attempts to describe in a coherent narra-
      tive how thousands of men and boys were summarily executed and
      buried in mass graves within a matter of days while the international
      community attempted to negotiate access to them. It details how evi-
      dence of atrocities taking place gradually came to light, but too late
      to prevent the tragedy which was unfolding. In 1995, the details of
      the tragedy were told in piecemeal fashion, as survivors of the mass
      executions began to provide accounts of the horrors they had wit-
      nessed ; satellite photos later gave credence to their accounts.

         The first official United Nations report which signalled the possi-
      bility of mass executions having taken place was the report of the
      Special Rapporteur of the Commission on Human Rights,
      dated 22 August 1995 (E/CN.4/1996/9). It was followed by the Sec-
      retary-General’s reports to the Security Council, pursuant to resolu-
      tion 1010 (1995), of 30 August (S/1995/755) and 27 November 1995
      (S/1995/988). Those reports included information obtained from
      governmental and non-governmental organizations, as well as infor-
      mation that had appeared in the international and local press. By the
      end of 1995, however, the International Tribunal for the Former

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137         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      Yugoslavia had still not been granted access to the area to corrobo-
      rate the allegations of mass executions with forensic evidence.

         The Tribunal first gained access to the crime scenes in Janu-
      ary 1996. The details of many of their findings were made public in
      July 1996, during testimony under rule 60 of the Tribunal’s rules of
      procedure, in the case against Ratio [sic : Ratko] Mladić and Radovan
      Karadžić. Between that time and the present, the Tribunal has been
      able to conduct further investigations in the areas where the execu-
      tions were reported to have taken place and where the primary and
      secondary mass graves were reported to have been located. On the
      basis of the forensic evidence obtained during those investigations,
      the Tribunal has now been able to further corroborate much of the
      testimony of the survivors of the massacres. On 30 October 1998, the
      Tribunal indicted Radislav Krstić, Commander of the BSA’s Drina
      Corps, for his alleged involvement in those massacres. The text of the
      indictment provides a succinct summary of the information obtained
      to date on where and when the mass executions took place.
         The aforementioned sources of information, coupled with certain
      additional confidential information that was obtained during the
      preparation of this report, form the basis of the account which fol-
      lows. Sources are purposely not cited in those instances where such
      disclosure could potentially compromise the Tribunal’s ongoing
      work.” (A/54/549, Chap. VIII, p. 77.)

  230. The care taken in preparing the report, its comprehensive sources
and the independence of those responsible for its preparation all lend
considerable authority to it. As will appear later in this Judgment, the
Court has gained substantial assistance from this report.

                                   * * *
VI. THE FACTS INVOKED BY THE APPLICANT, IN RELATION TO ARTICLE II

                           (1) The Background
   231. In this case the Court is seised of a dispute between two sovereign
States, each of which is established in part of the territory of the former
State known as the Socialist Federal Republic of Yugoslavia, concerning
the application and fulfilment of an international convention to which
they are parties, the Convention on the Prevention and Punishment of
the Crime of Genocide. The task of the Court is to deal with the legal
claims and factual allegations advanced by Bosnia and Herzegovina
against Serbia and Montenegro ; the counter-claim advanced earlier in
the proceedings by Serbia and Montenegro against Bosnia and Herze-
govina has been withdrawn.

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138        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  232. Following the death on 4 May 1980 of President Tito, a rotating
presidency was implemented in accordance with the 1974 Constitution of
the SFRY. After almost ten years of economic crisis and the rise of
nationalism within the republics and growing tension between different
ethnic and national groups, the SFRY began to break up. On
25 June 1991, Slovenia and Croatia declared independence, followed by
Macedonia on 17 September 1991. (Slovenia and Macedonia are not con-
cerned in the present proceedings ; Croatia has brought a separate case
against Serbia and Montenegro, which is still pending on the General
List.) On the eve of the war in Bosnia and Herzegovina which then broke
out, according to the last census (31 March 1991), some 44 per cent of
the population of the country described themselves as Muslims, some
31 per cent as Serbs and some 17 per cent as Croats (Krajišnik, IT-00-
39-T and 40-T, Trial Chamber Judgment, 27 September 2006, para. 15).

   233. By a “sovereignty” resolution adopted on 14 October 1991, the
Parliament of Bosnia and Herzegovina declared the independence of the
Republic. The validity of this resolution was contested at the time by
the Serbian community of Bosnia and Herzegovina (Opinion No. 1 of the
Arbitration Commission of the Conference on Yugoslavia (the Badinter
Commission), p. 3). On 24 October 1991, the Serb Members of the
Bosnian Parliament proclaimed a separate Assembly of the Serb Nation/
Assembly of the Serb People of Bosnia and Herzegovina. On 9 Janu-
ary 1992, the Republic of the Serb People of Bosnia and Herzegovina
(subsequently renamed the Republika Srpska on 12 August 1992) was
declared with the proviso that the declaration would come into force
upon international recognition of the Republic of Bosnia and Herze-
govina. On 28 February 1992, the Constitution of the Republic of the
Serb People of Bosnia and Herzegovina was adopted. The Republic of
the Serb People of Bosnia and Herzegovina (and subsequently the Repub-
lika Srpska) was not and has not been recognized internationally as a
State ; it has however enjoyed some de facto independence.
   234. On 29 February and 1 March 1992, a referendum was held on the
question of independence in Bosnia and Herzegovina. On 6 March 1992,
Bosnia and Herzegovina officially declared its independence. With effect
from 7 April 1992, Bosnia and Herzegovina was recognized by the Euro-
pean Community. On 7 April 1992, Bosnia and Herzegovina was recog-
nized by the United States. On 27 April 1992, the Constitution of the
Federal Republic of Yugoslavia was adopted consisting of the Republic
of Serbia and the Republic of Montenegro. As explained above (para-
graph 67), Montenegro declared its independence on 3 June 2006. All
three States have been admitted to membership of the United Nations :
Bosnia and Herzegovina on 22 May 1992 ; Serbia and Montenegro,
under the name of the Federal Republic of Yugoslavia on 1 Novem-
ber 2000 ; and the Republic of Montenegro on 28 June 2006.

                                 *   *
99

139        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

         (2) The Entities Involved in the Events Complained of

   235. It will be convenient next to define the institutions, organizations
or groups that were the actors in the tragic events that were to unfold in
Bosnia and Herzegovina. Of the independent sovereign States that had
emerged from the break-up of the SFRY, two are concerned in the
present proceedings : on the one side, the FRY (later to be called Serbia
and Montenegro), which was composed of the two constituent republics
of Serbia and Montenegro ; on the other, the Republic of Bosnia and
Herzegovina. At the time when the latter State declared its independence
(15 October 1991), the independence of two other entities had already
been declared : in Croatia, the Republika Srpska Krajina, on
26 April 1991, and the Republic of the Serb People of Bosnia and Herze-
govina, later to be called the Republika Srpska, on 9 January 1992 (para-
graph 233 above). The Republika Srpska never attained international
recognition as a sovereign State, but it had de facto control of substantial
territory, and the loyalty of large numbers of Bosnian Serbs.

   236. The Parties both recognize that there were a number of entities at
a lower level the activities of which have formed part of the factual issues
in the case, though they disagree as to the significance of those activities.
Of the military and paramilitary units active in the hostilities, there were
in April 1992 five types of armed formations involved in Bosnia : first, the
Yugoslav People’s Army (JNA), subsequently the Yugoslav Army (VJ) ;
second, volunteer units supported by the JNA and later by the VJ, and
the Ministry of the Interior (MUP) of the FRY ; third, municipal Bosnian
Serb Territorial Defence (TO) detachments ; and, fourth, police forces of
the Bosnian Serb Ministry of the Interior. The MUP of the Republika
Srpska controlled the police and the security services, and operated,
according to the Applicant, in close co-operation and co-ordination with
the MUP of the FRY. On 15 April 1992, the Bosnian Government estab-
lished a military force, based on the former Territorial Defence of the
Republic, the Army of the Republic of Bosnia and Herzegovina (ARBiH),
merging several non-official forces, including a number of paramilitary
defence groups, such as the Green Berets, and the Patriotic League, being
the military wing of the Muslim Party of Democratic Action. The Court
does not overlook the evidence suggesting the existence of Muslim organi-
zations involved in the conflict, such as foreign Mujahideen, although
as a result of the withdrawal of the Respondent’s counter-claims, the
activities of these bodies are not the subject of specific claims before the
Court.

  237. The Applicant has asserted the existence of close ties between the
Government of the Respondent and the authorities of the Republika
Srpska, of a political and financial nature, and also as regards administra-

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140        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

tion and control of the army of the Republika Srpska (VRS). The Court
observes that insofar as the political sympathies of the Respondent lay
with the Bosnian Serbs, this is not contrary to any legal rule. It is how-
ever argued by the Applicant that the Respondent, under the guise of
protecting the Serb population of Bosnia and Herzegovina, in fact con-
ceived and shared with them the vision of a “Greater Serbia”, in pursuit
of which it gave its support to those persons and groups responsible for
the activities which allegedly constitute the genocidal acts complained of.
The Applicant bases this contention first on the “Strategic Goals” articu-
lated by President Karadžić at the 16th Session of the FRY Assembly on
12 May 1992, and subsequently published in the Official Gazette of the
Republika Srpska (paragraph 371), and secondly on the consistent con-
duct of the Serb military and paramilitary forces vis-à-vis the non-Serb
Bosnians showing, it is suggested, an overall specific intent (dolus specia-
lis). These activities will be examined below.

   238. As regards the relationship between the armies of the FRY and
the Republika Srpska, the Yugoslav Peoples’ Army (JNA) of the SFRY
had, during the greater part of the period of existence of the SFRY, been
effectively a federal army, composed of soldiers from all the constituent
republics of the Federation, with no distinction between different ethnic
and religious groups. It is however contended by the Applicant that even
before the break-up of the SFRY arrangements were being made to
transform the JNA into an effectively Serb army. The Court notes that
on 8 May 1992, all JNA troops who were not of Bosnian origin were
withdrawn from Bosnia-Herzegovina. However, JNA troops of Bosnian
Serb origin who were serving in Bosnia and Herzegovina were trans-
formed into, or joined, the army of the Republika Srpska (the VRS)
which was established on 12 May 1992, or the VRS Territorial Defence.
Moreover, Bosnian Serb soldiers serving in JNA units elsewhere were
transferred to Bosnia and Herzegovina and subsequently joined the VRS.
The remainder of the JNA was transformed into the Yugoslav army (VJ)
and became the army of the Federal Republic of Yugoslavia. On
15 May 1992 the Security Council, by resolution 752, demanded that
units of the JNA in Bosnia and Herzegovina “be withdrawn, or be sub-
ject to the authority of the Government of Bosnia and Herzegovina, or
be disbanded and disarmed”. On 19 May 1992, the Yugoslav army was
officially withdrawn from Bosnia and Herzegovina. The Applicant con-
tended that from 1993 onwards, around 1,800 VRS officers were “admin-
istered” by the 30th Personnel Centre of the VJ in Belgrade ; this meant
that matters like their payment, promotions, pensions, etc., were handled,
not by the Republika Srpska, but by the army of the Respondent.
According to the Respondent, the importance of this fact was greatly
exaggerated by the Applicant : the VRS had around 14,000 officers and
thus only a small number of them were dealt with by the 30th Personnel
Centre ; this Centre only gave a certain degree of assistance to the VRS.
The Applicant maintains that all VRS officers remained members of the

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141        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

FRY army — only the label changed ; according to the Respondent,
there is no evidence for this last allegation. The Court takes note however
of the comprehensive description of the processes involved set out in
paragraphs 113 to 117 of the Judgment of 7 May 1997 of the ICTY Trial
Chamber in the Tadić case (IT-94-1-T) quoted by the Applicant which
mainly corroborate the account given by the latter. Insofar as the Respon-
dent does not deny the fact of these developments, it insists that they
were normal reactions to the threat of civil war, and there was no pre-
meditated plan behind them.
   239. The Court further notes the submission of the Applicant that the
VRS was armed and equipped by the Respondent. The Applicant con-
tends that when the JNA formally withdrew on 19 May 1992, it left
behind all its military equipment which was subsequently taken over by
the VRS. This claim is supported by the Secretary-General’s report of
3 December 1992 in which he concluded that “[t]hough the JNA has
completely withdrawn from Bosnia and Herzegovina, former members of
Bosnian Serb origin have been left behind with their equipment and con-
stitute the Army of the ‘Serb Republic’ ” (A/47/747, para. 11). Moreover,
the Applicant submits that Belgrade actively supplied the VRS with arms
and equipment throughout the war in Bosnia and Herzegovina. On the
basis of evidence produced before the ICTY, the Applicant contended
that up to 90 per cent of the material needs of the VRS were supplied by
Belgrade. General Dannatt, one of the experts called by the Applicant
(paragraph 57 above), testified that, according to a “consumption review”
given by General Mladić at the Bosnian Serb Assembly on 16 April 1995,
42.2 per cent of VRS supplies of infantry ammunition were inherited
from the former JNA and 47 per cent of VRS requirements were supplied
by the VJ. For its part, the Respondent generally denies that it supplied
and equipped the VRS but maintains that, even if that were the case,
such assistance “is very familiar and is an aspect of numerous treaties of
mutual security, both bilateral and regional”. The Respondent adds that
moreover it is a matter of public knowledge that the armed forces of Bos-
nia and Herzegovina received external assistance from friendly sources.
However, one of the witnesses called by the Respondent, Mr. Vladimir
Lukić, who was the Prime Minister of the Republika Srpska from 20 Janu-
ary 1993 to 18 August 1994 testified that the army of the Republika
Srpska was supplied from different sources “including but not limited
to the Federal Republic of Yugoslavia” but asserted that the Republika
Srpska “mainly paid for the military materiel which it obtained” from the
States that supplied it.

   240. As regards effective links between the two Governments in the
financial sphere, the Applicant maintains that the economies of the FRY,
the Republika Srpska, and the Republika Srpska Krajina were integrated
through the creation of a single economic entity, thus enabling the
FRY Government to finance the armies of the two other bodies in addi-
tion to its own. The Applicant argued that the National Banks of the

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Republika Srpska and of the Republika Srpska Krajina were set up as
under the control of, and directly subordinate to, the National Bank of
Yugoslavia in Belgrade. The national budget of the FRY was to a large
extent financed through primary issues from the National Bank of Yugo-
slavia, which was said to be entirely under governmental control, i.e. in
effect through creating money by providing credit to the FRY budget for
the use of the JNA. The same was the case for the budgets of the Repub-
lika Srpska and the Republika Srpska Krajina, which according to the
Applicant had virtually no independent sources of income ; the Respon-
dent asserts that income was forthcoming from various sources, but has
not specified the extent of this. The National Bank of Yugoslavia was
making available funds (80 per cent of those available from primary
issues) for “special purposes”, that is to say “to avoid the adverse effects
of war on the economy of the Serbian Republic of Bosnia and Herze-
govina”. The Respondent has denied that the budget deficit of the
Republika Srpska was financed by the FRY but has not presented evi-
dence to show how it was financed. Furthermore, the Respondent empha-
sizes that any financing supplied was simply on the basis of credits, to be
repaid, and was therefore quite normal, particularly in view of the eco-
nomic isolation of the FRY, the Republika Srpska and the Republika
Srpska Krajina ; it also suggested that any funds received would have
been under the sole control of the recipient, the Republika Srpska or the
Republika Srpska Krajina.

  241. The Court finds it established that the Respondent was thus
making its considerable military and financial support available to the
Republika Srpska, and had it withdrawn that support, this would have
greatly constrained the options that were available to the Republika
Srpska authorities.

                                    *   *
          (3) Examination of Factual Evidence : Introduction
  242. The Court will therefore now examine the facts alleged by the
Applicant, in order to satisfy itself, first, whether the alleged atrocities
occurred ; secondly, whether such atrocities, if established, fall within the
scope of Article II of the Genocide Convention, that is to say whether the
facts establish the existence of an intent, on the part of the perpetrators
of those atrocities, to destroy, in whole or in part, a defined group (dolus
specialis). The group taken into account for this purpose will, for the
reasons explained above (paragraphs 191-196), be that of the Bosnian
Muslims ; while the Applicant has presented evidence said to relate to the
wider group of non-Serb Bosnians, the Bosnian Muslims formed such a
substantial part of this wider group that that evidence appears to have
equal probative value as regards the facts, in relation to the more restricted

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group. The Court will also consider the facts alleged in the light of the
question whether there is persuasive and consistent evidence for a pattern
of atrocities, as alleged by the Applicant, which would constitute evi-
dence of dolus specialis on the part of the Respondent. For this purpose
it is not necessary to examine every single incident reported by the Appli-
cant, nor is it necessary to make an exhaustive list of the allegations ; the
Court finds it sufficient to examine those facts that would illuminate the
question of intent, or illustrate the claim by the Applicant of a pattern of
acts committed against members of the group, such as to lead to an infer-
ence from such pattern of the existence of a specific intent (dolus
specialis).

  243. The Court will examine the evidence following the categories of
prohibited acts to be found in Article II of the Genocide Convention.
The nature of the events to be described is however such that there is
considerable overlap between these categories : thus, for example, the
conditions of life in the camps to which members of the protected group
were confined have been presented by the Applicant as violations of
Article II, paragraph (c), of the Convention (the deliberate infliction of
destructive conditions of life), but since numerous inmates of the camps
died, allegedly as a result of those conditions, or were killed there, the
camps fall to be mentioned also under paragraph (a), killing of members
of the protected group.

   244. In the evidentiary material submitted to the Court, and that
referred to by the ICTY, frequent reference is made to the actions of
“Serbs” or “Serb forces”, and it is not always clear what relationship, if
any, the participants are alleged to have had with the Respondent. In
some cases it is contended, for example, that the JNA, as an organ de jure
of the Respondent, was involved ; in other cases it seems clear that the
participants were Bosnian Serbs, with no de jure link with the Respon-
dent, but persons whose actions are, it is argued, attributable to the
Respondent on other grounds. Furthermore, as noted in paragraph 238
above, it appears that JNA troops of Bosnian Serb origin were trans-
formed into, or joined the VRS. At this stage of the present Judgment,
the Court is not yet concerned with the question of the attributability to
the Respondent of the atrocities described ; it will therefore use the terms
“Serb” and “Serb forces” purely descriptively, without prejudice to the
status they may later, in relation to each incident, be shown to have had.
When referring to documents of the ICTY, or to the Applicant’s plead-
ings or oral argument, the Court will use the terminology of the original.

                                    *   *

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      (4) Article II (a) : Killing Members of the Protected Group

   245. Article II (a) of the Convention deals with acts of killing mem-
bers of the protected group. The Court will first examine the evidence of
killings of members of the protected group in the principal areas of
Bosnia and in the various detention camps, and ascertain whether
there is evidence of a specific intent (dolus specialis) in one or more of
them. The Court will then consider under this heading the evidence of the
massacres reported to have occurred in July 1995 at Srebrenica.

Sarajevo
   246. The Court notes that the Applicant refers repeatedly to killings,
by shelling and sniping, perpetrated in Sarajevo. The Fifth Periodic
Report of the United Nations Special Rapporteur is presented by the
Applicant in support of the allegation that between 1992 and 1993 kill-
ings of Muslim civilians were perpetrated in Sarajevo, partly as a result of
continuous shelling by Bosnian Serb forces. The Special Rapporteur
stated that on 9 and 10 November 1993 mortar attacks killed 12 people
(E/CN.4/1994/47, 17 November 1992, p. 4, para. 14). In his periodic
Report of 5 July 1995, the Special Rapporteur observed that as from late
February 1995 numerous civilians were killed by sniping activities of
Bosnian Serb forces and that “one local source reported that a total of
41 civilians were killed . . . in Sarajevo during the month of May 1995”
(Report of 5 July 1995, para. 69). The Report also noted that, in late June
and early July 1995, there was further indiscriminate shelling and rocket
attacks on Sarajevo by Bosnian Serb forces as a result of which many
civilian deaths were reported (Report of 5 July 1995, para. 70).

  247. The Report of the Commission of Experts gives a detailed account
of the battle and siege of Sarajevo. The Commission estimated that over
the course of the siege nearly 10,000 persons had been killed or were
missing in the city of Sarajevo (Report of the Commission of Experts,
Vol. II, Ann. VI, p. 8). According to the estimates made in a report pre-
sented by the Prosecution before the ICTY in the Galić case (IT-98-29-T,
Trial Chamber Judgment, 5 December 2003, paras. 578 and 579), the
monthly average of civilians killed fell from 105 in September to Decem-
ber 1992, to around 64 in 1993 and to around 28 in the first six months of
1994.

  248. The Trial Chamber of the ICTY, in its Judgment of 5 December
2003 in the Galić case examined specific incidents in the area of Sarajevo,
for instance the shelling of the Markale market on 5 February 1994
which resulted in the killing of 60 persons. The majority of the Trial

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145        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Chamber found that “civilians in ARBiH-held areas of Sarajevo were
directly or indiscriminately attacked from SRK-controlled territory
during the Indictment Period, and that as a result and as a minimum,
hundreds of civilians were killed and thousands others were injured”
(Galić, IT-98-29-T, Judgment, 5 December 2003, para. 591), the Trial
Chamber further concluded that “[i]n sum, the Majority of the Trial
Chamber finds that each of the crimes alleged in the Indictment —
crime of terror, attacks on civilians, murder and inhumane acts —
were committed by SRK forces during the Indictment Period” (ibid.,
para. 600).

  249. In this connection, the Respondent makes the general point that
in a civil war it is not always possible to differentiate between military
personnel and civilians. It does not deny that crimes were committed
during the siege of Sarajevo, crimes that “could certainly be characterized
as war crimes and certain even as crimes against humanity”, but it does
not accept that there was a strategy of targeting civilians.

Drina River Valley
  (a) Zvornik
  250. The Applicant made a number of allegations with regard to kill-
ings that occurred in the area of Drina River Valley. The Applicant, rely-
ing on the Report of the Commission of Experts, claims that at least
2,500 Muslims died in Zvornik from April to May 1992. The Court notes
that the findings of the Report of the Commission of Experts are based
on individual witness statements and one declassified United States State
Department document No. 94-11 (Vol. V, Ann. X, para. 387 ; Vol. IV,
Ann. VIII, p. 342 and para. 2884 ; Vol. I, Ann. III.A, para. 578). Further,
a video reporting on massacres in Zvornik was shown during the oral
proceedings (excerpts from “The Death of Yugoslavia”, BBC documen-
tary). With regard to specific incidents, the Applicant alleges that Serb
soldiers shot 36 Muslims and mistreated 27 Muslim children in the local
hospital of Zvornik in the second half of May 1992.

  251. The Respondent contests those allegations and contends that all
three sources used by the Applicant are based solely on the account of
one witness. It considers that the three reports cited by the Applicant
cannot be used as evidence before the Court. The Respondent produced
the statement of a witness made before an investigating judge in Zvornik
which claimed that the alleged massacre in the local hospital of Zvornik
had never taken place. The Court notes that the Office of the Prosecutor
of the ICTY had never indicted any of the accused for the alleged
massacres in the hospital.

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146         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  (b) Camps
      (i) Sušica camp
   252. The Applicant further presents claims with regard to killings per-
petrated in detention camps in the area of Drina River Valley. The
Report of the Commission of Experts includes the statement of an ex-
guard at the Sušica camp who personally witnessed 3,000 Muslims being
killed (Vol. IV, Ann. VIII, p. 334) and the execution of the last 200 sur-
viving detainees (Vol. I, Ann. IV, pp. 31-32). In proceedings before the
ICTY, the Commander of that camp, Dragan Nikolić, pleaded guilty to
murdering nine non-Serb detainees and, according to the Sentencing
Judgment of 18 December 2003, “the Accused persecuted Muslim and
other non-Serb detainees by subjecting them to murders, rapes and
torture as charged specifically in the Indictment” (Nikolić, IT-94-2-S,
para. 67).
      (ii) Foča Kazneno-Popravní Dom camp
  253. The Report of the Commission of Experts further mentions
numerous killings at the camp of Foča Kazneno-Popravní Dom (Foča
KP Dom). The Experts estimated that the number of prisoners at the
camp fell from 570 to 130 over two months (Vol. IV, Ann. VIII, p. 129).
The United States State Department reported one eye-witness statement
of regular executions in July 1992 and mass graves at the camp.

  254. The Trial Chamber of the ICTY made the following findings on
several killings at this camp in its Judgment in the Krnojelac case :

         “The Trial Chamber is satisfied beyond reasonable doubt that all
      but three of the persons listed in Schedule C to the Indictment were
      killed at the KP Dom. The Trial Chamber is satisfied that these per-
      sons fell within the pattern of events that occurred at the KP Dom
      during the months of June and July 1992, and that the only reason-
      able explanation for the disappearance of these persons since that
      time is that they died as a result of acts or omissions, with the rele-
      vant state of mind [sc. that required to establish murder], at the KP
      Dom.” (IT-97-25-T, Judgment, 15 March 2002, para. 330.)

      (iii) Batković camp
   255. As regards the detention camp of Batković, the Applicant claims
that many prisoners died at this camp as a result of mistreatment by the
Serb guards. The Report of the Commission of Experts reports one wit-
ness statement according to which there was a mass grave located next to
the Batković prison camp. At least 15 bodies were buried next to a cow
stable, and the prisoners neither knew the identity of those buried at the
stable nor the circumstances of their deaths (Report of the Commission

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147         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

of Experts, Vol. V, Ann. X, p. 9). The Report furthermore stresses
that

      “[b]ecause of the level of mistreatment, many prisoners died.
      One man stated that during his stay, mid-July to mid-August, 13
      prisoners were beaten to death. Another prisoner died because he
      had gangrene which went untreated. Five more may have died from
      hunger. Allegedly, 20 prisoners died prior to September.” (Vol. IV,
      Ann. VIII, p. 63.)

Killings at the Batković camp are also mentioned in the Dispatch of the
United States State Department of 19 April 1993. According to a witness,
several men died as a result of bad conditions and beatings at the camp
(United States Dispatch, 19 April 1993, Vol. 4, No. 30, p. 538).

  256. On the other hand, the Respondent stressed that, when the United
Nations Special Rapporteur visited the Batković prison camp, he found
that : “The prisoners did not complain of ill-treatment and, in general
appeared to be in good health.” (Report of 17 November 1992, para. 29)
However, the Applicant contends that “it is without any doubt that
Mazowiecki was shown a ‘model’ camp”.

Prijedor
  (a) Kozarac and Hambarine
  257. With regard to the area of the municipality of Prijedor, the Appli-
cant has placed particular emphasis on the shelling and attacks on
Kozarac, 20 km east of Prijedor, and on Hambarine in May 1992. The
Applicant contends that after the shelling, Serb forces shot people in their
homes and that those who surrendered were taken to a soccer stadium in
Kozarac where some men were randomly shot. The Report of the Com-
mission of Experts (Vol. I, Ann. III, pp. 154-155) states that :

         “The attack on Kozarac lasted three days and caused many vil-
      lagers to flee to the forest while the soldiers were shooting at ‘every
      moving thing’. Survivors calculated that at least 2,000 villagers were
      killed in that period. The villagers’ defence fell on 26 May . . .

        Serbs then reportedly announced that the villagers had 10 minutes
      to reach the town’s soccer stadium. However, many people were
      shot in their homes before given a chance to leave. One witness
      reported that several thousand people tried to surrender by carrying
      white flags, but three Serb tanks opened fire on them, killing many.”

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The Respondent submits that the number of killings is exaggerated and
that “there was severe fighting in Kozarac, which took place on 25 and
26 May, and naturally, it should be concluded that a certain number of
the victims were Muslim combatants”.
  258. As regards Hambarine, the Report of the Commission of Experts
(Vol. I, p. 39) states that :
        “Following an incident in which less than a handful of Serb[ian]
     soldiers were shot dead under unclear circumstances, the village of
     Hambarine was given an ultimatum to hand over a policeman who
     lived where the shooting had occurred. As it was not met, Hambar-
     ine was subjected to several hours of artillery bombardment on
     23 May 1992.
        The shells were fired from the aerodrome Urije just outside Pri-
     jedor town. When the bombardment stopped, the village was stormed
     by infantry, including paramilitary units, which sought out the inhab-
     itants in every home. Hambarine had a population of 2,499 in 1991.”

The Report of the Special Rapporteur of 17 November 1992, states that :

         “Between 23 and 25 May, the Muslim village of Hambarine, 5 km
      south of Prijedor, received an ultimatum : all weapons must be sur-
      rendered by 11 a.m. Then, alleging that a shot was fired at a Serbian
      patrol, heavy artillery began to shell the village and tanks appeared,
      firing at homes. The villagers fled to Prijedor. Witnesses reported
      many deaths, probably as many as 1,000.” (Periodic Report of
      17 November 1992, p. 8, para. 17 (c).)

The Respondent says, citing the indictment in the Stakić case, that
“merely 11 names of the victims are known” and that it is therefore
impossible that the total number of victims in Hambarine was “as many
as 1,000”.
   259. The Report of the Commission of Experts found that on 26, 27 or
28 May, the Muslim village of Kozarac, came under attack of heavy Serb
artillery. It furthermore notes that :
        “The population, estimated at 15,000, suffered a great many sum-
      mary executions, possibly as many as 5,000 persons according to
      some witnesses.” (Report of the Commission of Experts, Vol. IV,
      pt. 4.)
   260. The Applicant also claimed that killings of members of the pro-
tected group were perpetrated in Prijedor itself. The Report of the Com-
mission of Experts, as well as the United Nations Special Rapporteur
collected individual witness statements on several incidents of killing in
the town of Prijedor (Report of the Commission of Experts, Vol. I,
Ann. V, pp. 54 et seq.). In particular, the Special Rapporteur received
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149         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

testimony “from a number of reliable sources” that 200 people were
killed in Prijedor on 29 May 1992 (Report of 17 November 1992, para. 17).

   261. In the Stakić case, the ICTY Trial Chamber found that “many
people were killed during the attacks by the Bosnian Serb army on pre-
dominantly Bosnian Muslim villages and towns throughout the Prijedor
municipality and several massacres of Muslims took place”, and that “a
comprehensive pattern of atrocities against Muslims in Prijedor munici-
pality in 1992 ha[d] been proved beyond reasonable doubt” (IT-97-24-T,
Judgment, 31 July 2003, paras. 544 and 546). Further, in the Brdanin
case, the Trial Chamber was satisfied that “at least 80 Bosnian Muslim
civilians were killed when Bosnian Serb soldiers and police entered the
villages of the Kozarac area” (IT-99-36, Judgment, 1 September 2004,
para. 403).

  (b) Camps
     (i) Omarska camp
  262. With respect to the detention camps in the area of Prijedor, the
Applicant has stressed that the camp of Omarska was “arguably the
cruellest camp in Bosnia and Herzegovina”. The Report of the Com-
mission of Experts gives an account of seven witness statements reporting
between 1,000 to 3,000 killings (Vol. IV, Ann. VIII, p. 222). The Report
noted that
      “[s]ome prisoners estimate that on an average there may have been
      10 to 15 bodies displayed on the grass each morning, when the first
      prisoners went to receive their daily food rations. But there were also
      other dead bodies observed in other places at other times. Some pris-
      oners died from their wounds or other causes in the rooms where
      they were detained. Constantly being exposed to the death and suf-
      fering of fellow prisoners made it impossible for anyone over any
      period of time to forget in what setting he or she was. Given the
      length of time Logor Omarska was used, the numbers of prisoners
      detained in the open, and the allegations that dead bodies were
      exhibited there almost every morning.”

The Report of the Commission of Experts concludes that “all informa-
tion available . . . seems to indicate that [Omarska] was more than any-
thing else a death camp” (Vol. I, Ann. V, p. 80). The United Nations
Secretary-General also received submissions from Canada, Austria and
the United States, containing witness statements about the killings at
Omarska.
   263. In the Opinion and Judgment of the Trial Chamber in the Tadić
case, the ICTY made the following findings on Omarska : “Perhaps the
most notorious of the camps, where the most horrific conditions existed,

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150         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

was the Omarska camp.” (IT-94-1-T, Judgment, 7 May 1997, para. 155.)
“The Trial Chamber heard from 30 witnesses who survived the brutality
to which they were systematically subjected at Omarska. By all accounts,
the conditions at the camp were horrendous ; killings and torture were
frequent.” (Ibid., para. 157.) The Trial Chamber in the Stakić Judgment
found that “over a hundred people were killed in late July 1992 in the
Omarska camp” and that

      “[a]round late July 1992, 44 people were taken out of Omarska and
      put in a bus. They were told that they would be exchanged in the
      direction of Bosanska Krupa ; they were never seen again. During
      the exhumation in Jama Lisac, 56 bodies were found : most of
      them had died from gunshot injuries.” (IT-97-24-T, Judgment,
      31 July 2003, paras. 208 and 210).

At least 120 people detained at Omarska were killed after having been
taken away by bus.
        “The corpses of some of those taken away on the buses were later
      found in Hrastova Glavica and identified. A large number of bodies,
      126, were found in this area, which is about 30 kilometres away from
      Prijedor. In 121 of the cases, the forensic experts determined that the
      cause of death was gunshot wounds.” (Ibid., para. 212.)

   264. In the Brdanin case, the Trial Chamber, in its Judgment of 1 Sep-
tember 2004 held that between 28 May and 6 August, a massive number
of people were killed at Omarska camp. The Trial Chamber went on to
say specifically that “[a]s of late May 1992, a camp was set up at Omar-
ska, where evidence shows that several hundred Bosnian Muslim and
Bosnian Croat civilians from the Prijedor area were detained, and where
killings occurred on a massive scale” (IT-99-36-T, Trial Chamber Judg-
ment, 1 September 2004, para. 441). “The Trial Chamber is unable to
precisely identify all detainees that were killed at Omarska camp. It is
satisfied beyond reasonable doubt however that, at a minimum, 94 per-
sons were killed, including those who disappeared.” (Ibid., para. 448.)

      (ii) Keraterm camp
   265. A second detention camp in the area of Prijedor was the Kera-
term camp where, according to the Applicant, killings of members of the
protected group were also perpetrated. Several corroborating accounts of
a mass execution on the morning of 25 July 1992 in Room 3 at Keraterm
camp were presented to the Court. This included the United States Dis-
patch of the State Department and a letter from the Permanent Repre-

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151         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

sentative of Austria to the United Nations dated 5 March 1993, addressed
to the Secretary-General. The Report of the Commission of Experts cites
three separate witness statements to the effect that ten prisoners were
killed per day at Keraterm over three months (Vol. IV, para. 1932 ; see
also Vol. I, Ann. V, para. 445).

   266. The Trial Chamber of the ICTY, in the Sikirica et al. case, con-
cerning the Commander of Keraterm camp, found that 160 to 200 men
were killed or wounded in the so-called Room 3 massacre (IT-95-8-S,
Sentencing Judgment, 13 November 2001, para. 103). According to the
Judgment, Sikirica himself admitted that there was considerable evidence
“concerning the murder and killing of other named individuals at Kera-
term during the period of his duties”. There was also evidence that
“others were killed because of their rank and position in society and their
membership of a particular ethnic group or nationality” (ibid., para. 122).
In the Stakić case, the Trial Chamber found that “from 30 April 1992 to
30 September 1992 . . . killings occurred frequently in the Omarska,
Keraterm and Trnopolje camps” (IT-97-24-T, Judgment, 31 July 2003,
para. 544).

      (iii) Trnopolje camp
   267. The Applicant further contends that there is persuasive evidence
of killing at Trnopolje camp, with individual eye-witnesses corroborating
each other. The Report of the Commission of Experts found that “[i]n
Trnopolje, the regime was far better than in Omarska and Keraterm.
Nonetheless, harassment and malnutrition was a problem for all the
inmates. Rapes, beatings and other kinds of torture, and even killings,
were not rare.” (Report of the Commission of Experts, Vol. IV, Ann. V,
p. 10.)
         “The first period was allegedly the worst in Trnopolje, with the
      highest numbers of inmates killed, raped, and otherwise mistreated
      and tortured . . .
         The people killed in the camp were usually removed soon after by
      some camp inmates who were ordered by the Serbs to take them
      away and bury them . . .
         Albeit Logor Trnopolje was not a death camp like Logor Omar-
      ska or Logor Keraterm, the label ‘concentration camp’ is none the
      less justified for Logor Trnopolje due to the regime prevailing in the
      camp.” (Ibid., Vol. I, Ann. V, pp. 88-90.)
  268. With regard to the number of killings at Trnopolje, the ICTY
considered the period between 25 May and 30 September 1992, the rele-
vant period in the Stakić case (IT-97-24-T, Trial Chamber Judgment,
31 July 2003, paras. 226-227). The Trial Chamber came to the conclusion
that “killings occurred frequently in the Omarska, Keraterm and Trno-

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polje camps and other detention centres” (IT-97-24-T, para. 544). In the
Judgment in the Brdanin case, the Trial Chamber found that in the
period from 28 May to October 1992,

      “numerous killings occurred in Trnopolje camp. A number of
      detainees died as a result of the beatings received by the guards.
      Others were killed by camp guards with rifles. The Trial Chamber
      also [found] that at least 20 inmates were taken outside the
      camp and killed there.” (IT-99-36-T, Judgment, 1 September 2004,
      para. 450.)
   269. In response to the allegations of killings at the detention camps in
the area of Prijedor, the Respondent questions the number of victims, but
not the fact that killings occurred. It contends that killings in Prijedor
“were committed sporadically and against individuals who were not a
significant part of the group”. It further observed that the ICTY had not
characterized the acts committed in the Prijedor region as genocide.

Banja Luka
  Manjača camp
  270. The Applicant further contends that killings were also frequent at
Manjača camp in Banja Luka. The Court notes that multiple witness
accounts of killings are contained in the Report of the Commission of
Experts (Vol. IV, paras. 370-376) and a mass grave of 540 bodies, “pre-
sumably” from prisoners at Manjača, is mentioned in a report on missing
persons submitted by Manfred Nowak, the United Nations Expert on
Missing Persons :

         “In September 1995, mass graves were discovered near Krasulje in
      northwest Bosnia and Herzegovina. The Government has exhumed
      540 bodies of persons who were presumably detained at Manjaca
      concentration camp in 1992. In January 1996, a mass grave contain-
      ing 27 bodies of Bosnian Muslims was discovered near Sanski Most ;
      the victims were reportedly killed in July 1992 during their transfer
      from Sanski Most to Manjaca concentration camp (near Banja
      Luka).” (E/CN.4/1996/36 of 4 March 1996, para. 52.)

Brčko
  Luka camp
  271. The Applicant claims that killings of members of the protected
group were also perpetrated at Luka camp and Brčko. The Report of the
Commission of Experts confirms these allegations. One witness reported
that “[s]hootings often occurred at 4.00 a.m. The witness estimates that
during his first week at Luka more than 2,000 men were killed and

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153         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

thrown into the Sava River.” (Report of the Commission of Experts
Vol. IV, Ann. VIII, p. 93.) The Report further affirms that “[a]pparently,
murder and torture were a daily occurrence” (ibid., p. 96), and that it was
reported that
      “[t]he bodies of the dead or dying internees were often taken to the
      camp dump or moved behind the prisoner hangars. Other internees
      were required to move the bodies. Sometimes the prisoners who car-
      ried the dead were killed while carrying such bodies to the dump.
      The dead were also taken and dumped outside the Serbian Police
      Station located on Majevička Brigada Road in Brčko.” (Ibid.)

These findings are corroborated by evidence of a mass grave being found
near the site (Report of the Commission of Experts, Vol. IV, Ann. VIII,
p. 101, and United States State Department Dispatch).
   272. In the Jelisić case, eight of the 13 murders to which the accused
pleaded guilty were perpetrated at Luka camp and five were perpetrated
at the Brčko police station (IT-95-10-T, Trial Chamber Judgment,
14 December 1999, paras. 37-38). The Trial Chamber further held that
“[a]lthough the Trial Chamber is not in a position to establish the precise
number of victims ascribable to Goran Jelisić for the period in the indict-
ment, it notes that, in this instance, the material element of the crime of
genocide has been satisfied” (ibid., para. 65).
   273. In the Milošević Decision on Motion for Judgment of Acquittal,
the Trial Chamber found that many Muslims were detained in Luka
camp in May and June 1992 and that many killings were observed by
witnesses (IT-02-54-T, Decision on Motion for Judgment of Acquittal,
16 June 2004, paras. 159, 160-168), it held that “[t]he conditions and
treatment to which the detainees at Luka Camp were subjected were ter-
rible and included regular beatings, rapes, and killings” (ibid., para. 159).
“At Luka Camp . . . The witness personally moved about 12 to 15 bodies
and saw approximately 100 bodies stacked up like firewood at Luka
Camp ; each day a refrigerated meat truck from the local Bimeks Com-
pany in Brčko would come to take away the dead bodies.” (Ibid.,
para. 161.)
   274. The Court notes that the Brdanin Trial Chamber Judgment of
1 September 2004 made a general finding as to killings of civilians in
camps and municipalities at Banja Luka, Prijedor, Sanski Most, Ključ,
Kotor Varoš and Bosanski Novi. It held that :

         “In sum, the Trial Chamber is satisfied beyond reasonable doubt
      that, considering all the incidents described in this section of the
      judgment, at least 1,669 Bosnian Muslims and Bosnian Croats were
      killed by Bosnian Serb forces, all of whom were non-combatants.”
      (IT-99-36-T, Judgment, 1 September 2004, para. 465.)

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There are contemporaneous Security Council and General Assembly
resolutions condemning the killing of civilians in connection with ethnic
cleansing, or expressing alarm at reports of mass killings (Security Coun-
cil resolution 819 (1993), Preamble, paras. 6 and 7 ; General Assembly
resolution 48/153 (1993), paras. 5 and 6 ; General Assembly resolution 49/
196 (1994), para. 6).

   275. The Court further notes that several resolutions condemn specific
incidents. These resolutions, inter alia, condemn “the Bosnian Serb forces
for their continued offensive against the safe area of Goražde, which has
resulted in the death of numerous civilians” (Security Council resolu-
tion 913 (1994), Preamble, para. 5) ; condemn ethnic cleansing “perpe-
trated in Banja Luka, Bijeljina and other areas of the Republic of Bosnia
and Herzegovina under the control of Bosnian Serb forces” (Security
Council resolution 941 (1994), para. 2) ; express concern at “grave viola-
tions of international humanitarian law and of human rights in and
around Srebrenica, and in the areas of Banja Luka and Sanski Most,
including reports of mass murder” (Security Council resolu-
tion 1019 (1995), Preamble, para. 2) ; and condemn “the indiscriminate
shelling of civilians in the safe areas of Sarajevo, Tuzla, Bihać and
Goražde and the use of cluster bombs on civilian targets by Bosnian Serb
and Croatian Serb forces” (General Assembly resolution 50/193 (1995)
para. 5).

                                      *
   276. On the basis of the facts set out above, the Court finds that it is
established by overwhelming evidence that massive killings in specific
areas and detention camps throughout the territory of Bosnia and Herze-
govina were perpetrated during the conflict. Furthermore, the evidence
presented shows that the victims were in large majority members of the
protected group, which suggests that they may have been systematically
targeted by the killings. The Court notes in fact that, while the Respon-
dent contested the veracity of certain allegations, and the number of vic-
tims, or the motives of the perpetrators, as well as the circumstances of
the killings and their legal qualification, it never contested, as a matter of
fact, that members of the protected group were indeed killed in Bosnia
and Herzegovina. The Court thus finds that it has been established by
conclusive evidence that massive killings of members of the protected
group occurred and that therefore the requirements of the material ele-
ment, as defined by Article II (a) of the Convention, are fulfilled. At this
stage of its reasoning, the Court is not called upon to list the specific kill-
ings, nor even to make a conclusive finding on the total number of
victims.

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   277. The Court is however not convinced, on the basis of the evidence
before it, that it has been conclusively established that the massive kill-
ings of members of the protected group were committed with the specific
intent (dolus specialis) on the part of the perpetrators to destroy, in
whole or in part, the group as such. The Court has carefully examined
the criminal proceedings of the ICTY and the findings of its Chambers,
cited above, and observes that none of those convicted were found to
have acted with specific intent (dolus specialis). The killings outlined
above may amount to war crimes and crimes against humanity, but the
Court has no jurisdiction to determine whether this is so. In the exercise
of its jurisdiction under the Genocide Convention, the Court finds that it
has not been established by the Applicant that the killings amounted to
acts of genocide prohibited by the Convention. As to the Applicant’s
contention that the specific intent (dolus specialis) can be inferred from
the overall pattern of acts perpetrated throughout the conflict, examina-
tion of this must be reserved until the Court has considered all the other
alleged acts of genocide (violations of Article II, paragraphs (b) to (e))
(see paragraph 370 below).

                                    *   *

                     (5) The Massacre at Srebrenica

  278. The atrocities committed in and around Srebrenica are nowhere
better summarized than in the first paragraph of the Judgment of the
Trial Chamber in the Krstić case :
         “The events surrounding the Bosnian Serb take-over of the United
      Nations (‘UN’) ‘safe area’ of Srebrenica in Bosnia and Herzegovina,
      in July 1995, have become well known to the world. Despite a UN
      Security Council resolution declaring that the enclave was to be ‘free
      from armed attack or any other hostile act’, units of the Bosnian
      Serb Army (‘VRS’) launched an attack and captured the town.
      Within a few days, approximately 25,000 Bosnian Muslims, most of
      them women, children and elderly people who were living in the
      area, were uprooted and, in an atmosphere of terror, loaded onto
      overcrowded buses by the Bosnian Serb forces and transported
      across the confrontation lines into Bosnian Muslim-held territory.
      The military-aged Bosnian Muslim men of Srebrenica, however,
      were consigned to a separate fate. As thousands of them attempted
      to flee the area, they were taken prisoner, detained in brutal condi-
      tions and then executed. More than 7,000 people were never seen
      again.” (IT-98-33-T, Judgment, 2 August 2001, para. 1 ; footnotes
      omitted.)

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156         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

While the Respondent raises a question about the number of deaths, it
does not essentially question that account. What it does question is
whether specific intent (dolus specialis) existed and whether the acts
complained of can be attributed to it. It also calls attention to the attacks
carried out by the Bosnian army from within Srebrenica and the fact that
the enclave was never demilitarized. In the Respondent’s view the mili-
tary action taken by the Bosnian Serbs was in revenge and part of a war
for territory.
   279. The Applicant contends that the planning for the final attack on
Srebrenica must have been prepared quite some time before July 1995. It
refers to a report of 4 July 1994 by the commandant of the Bratunac
Brigade. He outlined the “final goal” of the VRS : “an entirely
Serbian Podrinje. The enclaves of Srebrenica, Žepa and Goražde must
be militarily defeated.” The report continued :
        “We must continue to arm, train, discipline, and prepare the
      RS Army for the execution of this crucial task — the expulsion of
      Muslims from the Srebrenica enclave. There will be no retreat
      when it comes to the Srebrenica enclave, we must advance. The
      enemy’s life has to be made unbearable and their temporary stay
      in the enclave impossible so that they leave en masse as soon as
      possible, realising that they cannot survive there.”

The Chamber in the Blagojević case mentioned testimony showing that
some “members of the Bratunac Brigade . . . did not consider this report
to be an order. Testimony of other witnesses and documentary evidence
show that the strategy was in fact implemented.” (IT-02-60-T, Trial
Chamber Judgment, 17 January 2005, para. 104 ; footnotes omitted.) The
Applicant sees the “final goal” described here as “an entirely Serbian
Podrinje”, in conformity with the objective of a Serbian region 50 km to
the west of the Drina river identified in an April or a May 1991 meeting
of the political and State leadership of Yugoslavia. The Court observes
that the object stated in the report, like the 1992 Strategic Objectives,
does not envisage the destruction of the Muslims in Srebrenica, but
rather their departure. The Chamber did not give the report any particu-
lar significance.

   280. The Applicant, like the Chamber, refers to a meeting on
7 March 1995 between the Commander of the United Nations Protection
Force (UNPROFOR) and General Mladić, at which the latter expressed
dissatisfaction with the safe area régime and indicated that he might take
military action against the eastern enclaves. He gave assurances however
for the safety of the Bosnian Muslim population of those enclaves. On
the following day, 8 March 1995, President Karadžić issued the Direc-
tive for Further Operations 7, also quoted by the Chamber and the
Applicant : “ ‘Planned and well-thought-out combat operations’ were

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157         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

to create ‘an unbearable situation of total insecurity with no hope of
further survival or life for the inhabitants of both enclaves’.” The Blago-
jević Chamber continues as follows :

        “The separation of the Srebrenica and Žepa enclaves became the
      task of the Drina Corps. As a result of this directive, Gen-
      eral Ratko Mladić on 31 March 1995 issued Directive for Further
      Operations, Operative No. 7/1, which further directive specified the
      Drina Corps’ tasks.” (IT-02-60-T, pp. 38-39, para. 106.)
   281. Counsel for the Applicant asked in respect of the first of those
directives “[w]hat could be a more clear-cut definition of the genocidal
intent to destroy on the part of the authorities in Pale ?”. As with
the July 1994 report, the Court observes that the expulsion of the inhabi-
tants would achieve the purpose of the operation. That observation is
supported by the ruling of the Appeals Chamber in the Krstić case that
the directives were “insufficiently clear” to establish specific intent (dolus
specialis) on the part of the members of the Main Staff who issued them.
“Indeed, the Trial Chamber did not even find that those who issued
Directives 7 and 7.1 had genocidal intent, concluding instead that the
genocidal plan crystallized at a later stage.” (IT-98-33-A, Judgment,
19 April 2004, para. 90.)
   282. A Netherlands Battalion (Dutchbat) was deployed in the Sre-
brenica safe area. Within that area in January 1995 it had about 600 per-
sonnel. By February and through the spring the VRS was refusing to
allow the return of Dutch soldiers who had gone on leave, causing their
numbers to drop by at least 150, and were restricting the movement of
international convoys of aid and supplies to Srebrenica and to other
enclaves. It was estimated that without new supplies about half of the
population of Srebrenica would be without food after mid-June.

   283. On 2 July the Commander of the Drina Corps issued an order for
active combat operations ; its stated objective on the Srebrenica enclave
was to reduce “the enclave to its urban area”. The attack began on 6 July
with rockets exploding near the Dutchbat headquarters in Potočari ; 7
and 8 July were relatively quiet because of poor weather, but the shelling
intensified around 9 July. Srebrenica remained under fire until 11 July
when it fell, with the Dutchbat observation posts having been taken by
the VRS. Contrary to the expectations of the VRS, the Bosnia and
Herzegovina army showed very little resistance (Blagojević, IT-02-60-T,
Trial Chamber Judgment, 17 January 2005, para. 125). The United
Nations Secretary-General’s report quotes an assessment made by United
Nations military observers on the afternoon of 9 July which concluded as
follows :

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158         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      “ ‘the BSA offensive will continue until they achieve their aims.
      These aims may even be widening since the United Nations response
      has been almost non-existent and the BSA are now in a position to
      overrun the enclave if they wish.’ Documents later obtained from
      Serb sources appear to suggest that this assessment was correct.
      Those documents indicate that the Serb attack on Srebrenica
      initially had limited objectives. Only after having advanced with
      unexpected ease did the Serbs decide to overrun the entire enclave.
      Serb civilian and military officials from the Srebrenica area have
      stated the same thing, adding, in the course of discussions with a
      United Nations official, that they decided to advance all the way
      to Srebrenica town when they assessed that UNPROFOR was not
      willing or able to stop them.” (A/54/549, para. 264.)

Consistently with that conclusion, the Chamber in the Blagojević case
says this :
         “As the operation progressed its military object changed from
      ‘reducing the enclave to the urban area’ [the objective stated in a
      Drina Corps order of 2 July] to the taking-over of Srebrenica town
      and the enclave as a whole. The Trial Chamber has heard no direct
      evidence as to the exact moment the military objective changed. The
      evidence does show that President Karadžić was ‘informed of suc-
      cessful combat operations around Srebrenica . . . which enable them
      to occupy the very town of Srebrenica’ on 9 July. According to
      Miroslav Deronjić, the President of the Executive Board of the Bra-
      tunac Municipality, President Karadžić told him on 9 July that there
      were two options in relation to the operation, one of which was the
      complete take-over of Srebrenica. Later on 9 July, President Karad-
      žić ‘agreed with continuation of operations for the takeover of Sre-
      brenica’. By the morning of 11 July the change of objective of the
      ‘Krivaja 95’ operation had reached the units in the field ; and by the
      middle of the afternoon, the order to enter Srebrenica had reached
      the Bratunac Brigade’s IKM in Pribićevac and Colonel Blagojević.
      Miroslav Deronjić visited the Bratunac Brigade IKM in Pribićevac
      on 11 July. He briefly spoke with Colonel Blagojević about the
      Srebrenica operation. According to Miroslav Deronjić, the VRS
      had just received the order to enter Srebrenica town.” (IT-02-60-T,
      Trial Chamber Judgment, 17 January 2005, para. 130.)

  284. The Chamber then begins an account of the dreadful aftermath
of the fall of Srebrenica. A Dutchbat Company on 11 July started direct-
ing the refugees to the UNPROFOR headquarters in Potočari which was

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159         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

considered to be the only safe place for them. Not all the refugees went
towards Potočari ; many of the Bosnian Muslim men took to the woods.
Refugees were soon shelled and shot at by the VRS despite attempts to
find a safe route to Potočari where, to quote the ICTY, chaos reigned :

         “The crowd outside the UNPROFOR compound grew by the
      thousands during the course of 11 July. By the end of the day, an
      estimated 20,000 to 30,000 Bosnian Muslims were in the surround-
      ing area and some 4,000 to 5,000 refugees were in the UNPROFOR
      compound.
      (b) Conditions in Potočari
         The standards of hygiene within Potočari had completely deterio-
      rated. Many of the refugees seeking shelter in the UNPROFOR
      headquarters were injured. Medical assistance was given to the extent
      possible ; however, there was a dramatic shortage of medical sup-
      plies. As a result of the VRS having prevented aid convoys from
      getting through during the previous months, there was hardly any
      fresh food in the DutchBat headquarters. There was some running
      water available outside the compound. From 11 to 13 July 1995
      the temperature was very high, reaching 35 degrees centigrade and
      this small water supply was insufficient for the 20,000 to 30,000
      refugees who were outside the UNPROFOR compound.”
      (IT-02-60-T, paras. 146-147.)

The Tribunal elaborates on those matters and some efforts made by
Bosnian Serb and Serbian authorities, i.e., the local Municipal Assembly,
the Bratunac Brigade and the Drina Corps, as well as UNHCR, to assist
the Bosnian Muslim refugees (ibid., para. 148).

  285. On 10 July at 10.45 p.m., according to the Secretary-General’s
1999 Report, the delegate in Belgrade of the Secretary-General’s Special
Representative telephoned the Representative to say that he had seen
President Milošević who had responded that not much should be expected
of him because “the Bosnian Serbs did not listen to him” (A/54/549,
para. 292). At 3 p.m. the next day, the President rang the Special Repre-
sentative and, according to the same report, “stated that the Dutchbat
soldiers in Serb-held areas had retained their weapons and equipment,
and were free to move about. This was not true.” (Ibid., para. 307.)
About 20 minutes earlier two NATO aircraft had dropped two bombs on
what were thought to be Serb vehicles advancing towards the town from
the south. The Secretary-General’s report gives the VRS reaction :

        “Immediately following this first deployment of NATO close air
      support, the BSA radioed a message to Dutchbat. They threatened

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      to shell the town and the compound where thousands of inhabitants
      had begun to gather, and to kill the Dutchbat soldiers being held
      hostage, if NATO continued with its use of air power. The Special
      Representative of the Secretary-General recalled having received a
      telephone call from the Netherlands Minister of Defence at this time,
      requesting that the close air support action be discontinued, because
      Serb soldiers on the scene were too close to Netherlands troops, and
      their safety would be jeopardized. The Special Representative con-
      sidered that he had no choice but to comply with this request.”
      (A/54/549, para. 306.)
   286. The Trial Chamber in the Blagojević case recorded that on 11 July
at 8 p.m. there was a meeting between a Dutch colonel and Gen-
eral Mladić and others. The former said that he had come to negotiate
the withdrawal of the refugees and to ask for food and medicine for
them. He sought assurances that the Bosnian Muslim population and
Dutchbat would be allowed to withdraw from the area. General Mladić
said that the civilian population was not the target of his actions and the
goal of the meeting was to work out an arrangement. He then said “‘you
can all leave, all stay, or all die here’ . . . ‘we can work out an agreement
for all this to stop and for the issues of the civilian population, your sol-
diers and the Muslim military to be resolved in a peaceful way’” (Blago-
jević, IT-02-60-T, Trial Chamber Judgment, 17 January 2005, paras. 150-
152). Later that night at a meeting beginning at 11 p.m., attended by a
representative of the Bosnian Muslim community, General Mladić said :

        “ ‘Number one, you need to lay down your weapons and I guar-
      antee that all those who lay down their weapon will live. I give you
      my word, as a man and a General, that I will use my influence to
      help the innocent Muslim population which is not the target of the
      combat operations carried out by the VRS . . . In order to make a
      decision as a man and a Commander, I need to have a clear position
      of the representatives of your people on whether you want to
      survive . . . stay or vanish. I am prepared to receive here tomorrow
      at 10 a.m. hrs. a delegation of officials from the Muslim side with
      whom I can discuss the salvation of your people from . . . the former
      enclave of Srebrenica . . . Nesib [a Muslim representative], the future
      of your people is in your hands, not only in this territory . . . Bring
      the people who can secure the surrender of weapons and save your
      people from destruction.’
        The Trial Chamber finds, based on General Mladić’s comments,
      that he was unaware that the Bosnian Muslim men had left the
      Srebrenica enclave in the column.

        General Mladić also stated that he would provide the vehicles
      to transport the Bosnian Muslims out of Potočari. The Bosnian

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      Muslim and Bosnian Serb sides were not on equal terms and Nesib
      Mandžić felt his presence was only required to put up a front
      for the international public. Nesib Mandžić felt intimidated by
      General Mladić. There was no indication that anything would
      happen the next day.” (IT-02-60-T, paras. 156-158.)

   287. A third meeting was held the next morning, 12 July. The Tribunal
in the Blagojević case gives this account :
         “After the Bosnian Muslim representatives had introduced them-
      selves, General Mladić stated :
              ‘I want to help you, but I want absolute co-operation from
            the civilian population because your army has been defeated.
            There is no need for your people to get killed, your husband,
            your brothers or your neighbours . . . As I told this gentle-
            man last night, you can either survive or disappear. For your
            survival, I demand that all your armed men, even those who
            committed crimes, and many did, against our people, surren-
            der their weapons to the VRS . . . You can choose to stay or
            you can choose to leave. If you wish to leave, you can go any-
            where you like. When the weapons have been surrendered
            every individual will go where they say they want to go.
            The only thing is to provide the needed gasoline. You can
            pay for it if you have the means. If you can’t pay for it,
            UNPROFOR should bring four or five tanker trucks
            to fill up trucks . . .’
         Čamila Omanović [one of the Muslim representatives] interpreted
      this to mean that if the Bosnian Muslim population left they would
      be saved, but that if they stayed they would die. General Mladić did
      not give a clear answer in relation to whether a safe transport of the
      civilian population out of the enclave would be carried out. Gen-
      eral Mladić stated that the male Bosnian Muslim population from
      the age of 16 to 65 would be screened for the presence of war crimi-
      nals. He indicated that after this screening, the men would be returned
      to the enclave. This was the first time that the separation of men
      from the rest of the population was mentioned. The Bosnian Muslim
      representatives had the impression that ‘everything had been pre-
      pared in advance, that there was a team of people working together
      in an organized manner’ and that ‘Mladić was the chief organizer.’

        The third Hotel Fontana meeting ended with an agreement that
      the VRS would transport the Bosnian Muslim civilian population
      out of the enclave to ARBiH-held territory, with the assistance of
      UNPROFOR to ensure that the transportation was carried out in a
      humane manner.” (Ibid., paras. 160-161.)

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The Court notes that the accounts of the statements made at the meetings
come from transcripts of contemporary video recordings.

   288. The VRS and MUP of the Republika Srpska from 12 July sepa-
rated men aged 16 to approximately 60 or 70 from their families. The
Bosnian Muslim men were directed to various locations but most were
sent to a particular house (“The White House”) near the UNPROFOR
headquarters in Potočari, where they were interrogated. During the after-
noon of 12 July a large number of buses and other vehicles arrived in
Potočari including some from Serbia. Only women, children and the
elderly were allowed to board the buses bound for territory held by the
Bosnia and Herzegovina military. Dutchbat vehicles escorted convoys to
begin with, but the VRS stopped that and soon after stole 16-18 Dutch-
bat jeeps, as well as around 100 small arms, making further escorts
impossible. Many of the Bosnian Muslim men from Srebrenica and its
surroundings including those who had attempted to flee through the
woods were detained and killed.

   289. Mention should also be made of the activities of certain paramili-
tary units, the “Red Berets” and the “Scorpions”, who are alleged by the
Applicant to have participated in the events in and around Srebrenica.
The Court was presented with certain documents by the Applicant, which
were said to show that the “Scorpions” were indeed sent to the Trnovo
area near Srebrenica and remained there through the relevant time period.
The Respondent cast some doubt on the authenticity of these documents
(which were copies of intercepts, but not originals) without ever formally
denying their authenticity. There was no denial of the fact of the reloca-
tion of the “Scorpions” to Trnovo. The Applicant during the oral
proceedings presented video material showing the execution by para-
militaries of six Bosnian Muslims, in Trnovo, in July 1995.
   290. The Trial Chambers in the Krstić and Blagojević cases both
found that Bosnian Serb forces killed over 7,000 Bosnian Muslim men
following the takeover of Srebrenica in July 1995 (Krstić, IT-98-33-T,
Judgment, 2 August 2001, paras. 426-427 and Blagojević, IT-02-60-T,
Judgment, 17 January 2005, para. 643). Accordingly they found that the
actus reus of killings in Article II (a) of the Convention was satisfied.
Both also found that actions of Bosnian Serb forces also satisfied
the actus reus of causing serious bodily or mental harm, as defined in
Article II (b) of the Convention — both to those who where about to
be executed, and to the others who were separated from them in respect
of their forced displacement and the loss suffered by survivors among
them (Krstić, ibid., para. 543, and Blagojević, ibid., paras. 644-654).

  291. The Court is fully persuaded that both killings within the terms of
Article II (a) of the Convention, and acts causing serious bodily or men-

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tal harm within the terms of Article II (b) thereof occurred during the
Srebrenica massacre. Three further aspects of the ICTY decisions relating
to Srebrenica require closer examination — the specific intent (dolus spe-
cialis), the date by which the intent was formed, and the definition of the
“group” in terms of Article II. A fourth issue which was not directly
before the ICTY but which this Court must address is the involvement, if
any, of the Respondent in the actions.

   292. The issue of intent has been illuminated by the Krstić Trial
Chamber. In its findings, it was convinced of the existence of intent by
the evidence placed before it. Under the heading “A Plan to Execute the
Bosnian Muslim Men of Srebrenica”, the Chamber “finds that, following
the takeover of Srebrenica in July 1995, the Bosnian Serbs devised and
implemented a plan to execute as many as possible of the military aged
Bosnian Muslim men present in the enclave” (IT-98-33-T, Judgment,
2 August 2001, para. 87). All the executions, the Chamber decided,
“systematically targeted Bosnian Muslim men of military age, regardless
of whether they were civilians or soldiers” (ibid., para. 546). While “[t]he
VRS may have initially considered only targeting military men for
execution, . . . [the] evidence shows, however, that a decision was taken,
at some point, to capture and kill all the Bosnian Muslim men indiscrimi-
nately. No effort was made to distinguish the soldiers from the civilians.”
(Ibid., para. 547.) Under the heading “Intent to Destroy”, the Chamber
reviewed the Parties’ submissions and the documents, concluding that it
would “adhere to the characterization of genocide which encompass[es]
only acts committed with the goal of destroying all or part of a group”
(ibid., para. 571 ; original emphasis). The acts of genocide need not be
premeditated and the intent may become the goal later in an operation
(ibid., para. 572).

         “Evidence presented in this case has shown that the killings
      were planned : the number and nature of the forces involved, the
      standardized coded language used by the units in communicating
      information about the killings, the scale of the executions, the
      invariability of the killing methods applied, indicate that a decision
      was made to kill all the Bosnian Muslim military aged men.

        The Trial Chamber is unable to determine the precise date on
      which the decision to kill all the military aged men was taken.
      Hence, it cannot find that the killings committed in Potočari on 12
      and 13 July 1995 formed part of the plan to kill all the military aged
      men. Nevertheless, the Trial Chamber is confident that the mass
      executions and other killings committed from 13 July onwards were
      part of this plan.” (Ibid., paras. 572-573 ; see also paras. 591-598.)

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   293. The Court has already quoted (paragraph 281) the passage from
the Judgment of the Appeals Chamber in the Krstić case rejecting the
Prosecutor’s attempted reliance on the Directives given earlier in July,
and it would recall the evidence about the VRS’s change of plan in the
course of the operation in relation to the complete takeover of the
enclave. The Appeals Chamber also rejected the appeal by General Krstić
against the finding that genocide occurred in Srebrenica. It held that the
Trial Chamber was entitled to conclude that the destruction of such a
sizeable number of men, one fifth of the overall Srebrenica community,
“‘would inevitably result in the physical disappearance of the Bosnian
Muslim population at Srebrenica’” (IT-98-33-A, Appeals Chamber Judg-
ment, 19 April 2004, paras. 28-33) ; and the Trial Chamber, as the best
assessor of the evidence presented at trial, was entitled to conclude that
the evidence of the transfer of the women and children supported its find-
ing that some members of the VRS Main Staff intended to destroy the
Bosnian Muslims in Srebrenica. The Appeals Chamber concluded this
part of its Judgment as follows :

         “The gravity of genocide is reflected in the stringent requirements
      which must be satisfied before this conviction is imposed. These
      requirements — the demanding proof of specific intent and the
      showing that the group was targeted for destruction in its entirety or
      in substantial part — guard against a danger that convictions for
      this crime will be imposed lightly. Where these requirements are
      satisfied, however, the law must not shy away from referring to the
      crime committed by its proper name. By seeking to eliminate a part
      of the Bosnian Muslims, the Bosnian Serb forces committed geno-
      cide. They targeted for extinction the forty thousand Bosnian Mus-
      lims living in Srebrenica, a group which was emblematic of the Bos-
      nian Muslims in general. They stripped all the male Muslim prisoners,
      military and civilian, elderly and young, of their personal belongings
      and identification, and deliberately and methodically killed them
      solely on the basis of their identity. The Bosnian Serb forces were
      aware, when they embarked on this genocidal venture, that the harm
      they caused would continue to plague the Bosnian Muslims. The
      Appeals Chamber states unequivocally that the law condemns, in
      appropriate terms, the deep and lasting injury inflicted, and calls the
      massacre at Srebrenica by its proper name : genocide. Those respon-
      sible will bear this stigma, and it will serve as a warning to those who
      may in future contemplate the commission of such a heinous act.

        In concluding that some members of the VRS Main Staff intended
      to destroy the Bosnian Muslims of Srebrenica, the Trial Chamber

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165         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      did not depart from the legal requirements for genocide. The Defence
      appeal on this issue is dismissed.” (Ibid., paras. 37-38.)

   294. On one view, taken by the Applicant, the Blagojević Trial Cham-
ber decided that the specific intent (dolus specialis) was formed earlier
than 12 or 13 July, the time chosen by the Krstić Chamber. The Court
has already called attention to that Chamber’s statement that at some
point (it could not determine “the exact moment”) the military objective
in Srebrenica changed, from “reducing the enclave to the urban area”
(stated in a Drina Corps order of 2 July 1995 referred to at times as the
“Krivaja 95 operation”) to taking over Srebrenica town and the enclave
as a whole. Later in the Judgment, under the heading “Findings : was
genocide committed ?”, the Chamber refers to the 2 July document :

         “The Trial Chamber is convinced that the criminal acts committed
      by the Bosnian Serb forces were all parts of one single scheme to
      commit genocide of the Bosnian Muslims of Srebrenica, as reflected
      in the ‘Krivaja 95 operation’, the ultimate objective of which was to
      eliminate the enclave and, therefore, the Bosnian Muslim commu-
      nity living there.” (Blagojević, IT-02-60-T, Judgment, 17 Janu-
      ary 2005, para. 674.)
The Chamber immediately goes on to refer only to the events — the
massacres and the forcible transfer of the women and children — after
the fall of Srebrenica, that is sometime after the change of military objec-
tive on 9 or 10 July. The conclusion on intent is similarly focused :

         “The Trial Chamber has no doubt that all these acts constituted a
      single operation executed with the intent to destroy the Bosnian
      Muslim population of Srebrenica. The Trial Chamber finds that the
      Bosnian Serb forces not only knew that the combination of the kill-
      ings of the men with the forcible transfer of the women, children and
      elderly, would inevitably result in the physical disappearance of the
      Bosnian Muslim population of Srebrenica, but clearly intend-
      ed through these acts to physically destroy this group.” (Ibid.,
      para. 677.) (See similarly all but the first item in the list in para-
      graph 786.)

   295. The Court’s conclusion, fortified by the Judgments of the Trial
Chambers in the Krstić and Blagojević cases, is that the necessary intent
was not established until after the change in the military objective and
after the takeover of Srebrenica, on about 12 or 13 July. This may be
significant for the application of the obligations of the Respondent under

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the Convention (paragraph 423 below). The Court has no reason to
depart from the Tribunal’s determination that the necessary specific
intent (dolus specialis) was established and that it was not established
until that time.

   296. The Court now turns to the requirement of Article II that there
must be the intent to destroy a protected “group” in whole or in part. It
recalls its earlier statement of the law and in particular the three elements
there discussed : substantiality (the primary requirement), relevant geo-
graphic factors and the associated opportunity available to the perpe-
trators, and emblematic or qualitative factors (paragraphs 197-201).
Next, the Court recalls the assessment it made earlier in the Judgment
of the persuasiveness of the ICTY’s findings of facts and its evaluation of
them (paragraph 223). Against that background it turns to the findings
in the Krstić case (IT-98-33-T, Trial Chamber Judgment, 2 August
2001, paras. 551-599 and IT-98-33-A, Appeals Chamber Judgment,
19 April 2004, paras. 6-22), in which the Appeals Chamber endorsed the
findings of the Trial Chamber in the following terms.

        “In this case, having identified the protected group as the national
      group of Bosnian Muslims, the Trial Chamber concluded that the
      part the VRS Main Staff and Radislav Krstić targeted was the
      Bosnian Muslims of Srebrenica, or the Bosnian Muslims of Eastern
      Bosnia. This conclusion comports with the guidelines outlined above.
      The size of the Bosnian Muslim population in Srebrenica prior to its
      capture by the VRS forces in 1995 amounted to approximately forty
      thousand people. This represented not only the Muslim inhabitants
      of the Srebrenica municipality but also many Muslim refugees from
      the surrounding region. Although this population constituted only a
      small percentage of the overall Muslim population of Bosnia and
      Herzegovina at the time, the importance of the Muslim community
      of Srebrenica is not captured solely by its size.” (IT-98-33-A, Judg-
      ment, 19 April 2004, para. 15 ; footnotes omitted.)

The Court sees no reason to disagree with the concordant findings of the
Trial Chamber and the Appeals Chamber.
  297. The Court concludes that the acts committed at Srebrenica falling
within Article II (a) and (b) of the Convention were committed with the
specific intent to destroy in part the group of the Muslims of Bosnia and
Herzegovina as such ; and accordingly that these were acts of genocide,
committed by members of the VRS in and around Srebrenica from about
13 July 1995.

                                    *   *
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167         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

(6) Article II (b) : Causing Serious Bodily or Mental Harm to Members
                          of the Protected Group

   298. The Applicant contends that besides the massive killings, syste-
matic serious harm was caused to the non-Serb population of Bosnia and
Herzegovina. The Applicant includes the practice of terrorizing the non-
Serb population, the infliction of pain and the administration of torture
as well as the practice of systematic humiliation into this category of acts
of genocide. Further, the Applicant puts a particular emphasis on the
issue of systematic rapes of Muslim women, perpetrated as part of geno-
cide against the Muslims in Bosnia during the conflict.
   299. The Respondent does not dispute that, as a matter of legal quali-
fication, the crime of rape may constitute an act of genocide, causing
serious bodily or mental harm. It disputes, however, that the rapes in the
territory of Bosnia and Herzegovina were part of a genocide perpetrated
therein. The Respondent, relying on the Report of the Commission of
Experts, maintains that the rapes and acts of sexual violence committed
during the conflict, were not part of genocide, but were committed on all
sides of the conflict, without any specific intent (dolus specialis).
   300. The Court notes that there is no dispute between the Parties that
rapes and sexual violence could constitute acts of genocide, if accompa-
nied by a specific intent to destroy the protected group. It notes also that
the ICTR, in its Judgment of 2 September 1998 in the Akayesu case,
addressed the issue of acts of rape and sexual violence as acts of genocide
in the following terms :
         “Indeed, rape and sexual violence certainly constitute infliction of
      serious bodily and mental harm on the victims and are even, accord-
      ing to the Chamber, one of the worst ways of inflicting harm on the
      victim as he or she suffers both bodily and mental harm.” (ICTR-
      96-4-T, Trial Chamber Judgment, 2 September 1998, para. 731.)

The ICTY, in its Judgment of 31 July 2003 in the Stakić case, recognized
that :
         “ ‘Causing serious bodily and mental harm’ in subparagraph (b)
      [of Article 4 (2) of the Statute of the ICTY] is understood to mean,
      inter alia, acts of torture, inhumane or degrading treatment, sexual
      violence including rape, interrogations combined with beatings,
      threats of death, and harm that damages health or causes disfigure-
      ment or injury. The harm inflicted need not be permanent and irre-
      mediable.” (IT-97-24-T, Trial Chamber Judgment, 31 July 2003,
      para. 516.)

  301. The Court notes furthermore that Security Council and General
Assembly resolutions contemporary with the facts are explicit in referring

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168         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

to sexual violence. These resolutions were in turn based on reports before
the General Assembly and the Security Council, such as the Reports of
the Secretary-General, the Commission of Experts, the Special Rappor-
teur for Human Rights, Tadeusz Mazowiecki, and various United Nations
agencies in the field. The General Assembly stressed the “extraordinary
suffering of the victims of rape and sexual violence” (General Assembly
resolution 48/143 (1993), Preamble ; General Assembly resolution 50/192
(1995), para. 8). In resolution 48/143 (1993), the General Assembly
declared it was :

        “Appalled at the recurring and substantiated reports of wide-
      spread rape and abuse of women and children in the areas of armed
      conflict in the former Yugoslavia, in particular its systematic use
      against the Muslim women and children in Bosnia and Herzegovina
      by Serbian forces” (Preamble, para. 4).

   302. Several Security Council resolutions expressed alarm at the
“massive, organised and systematic detention and rape of women”, in par-
ticular Muslim women in Bosnia and Herzegovina (Security Council
resolutions 798 (1992), Preamble, para. 2 ; resolution 820 (1993),
para. 6 ; 827 (1993), Preamble, para. 3). In terms of other kinds of
serious harm, Security Council resolution 1034 (1995) condemned

      “in the strongest possible terms the violations of international
      humanitarian law and of human rights by Bosnian Serb and para-
      military forces in the areas of Srebrenica, Žepa, Banja Luka and
      Sanski Most as described in the report of the Secretary-General of
      27 November 1995 and showing a consistent pattern of summary
      executions, rape, mass expulsions, arbitrary detentions, forced labour
      and large-scale disappearances” (para. 2).

The Security Council further referred to a “persistent and systematic
campaign of terror” in Banja Luka, Bijeljina and other areas under the
control of Bosnian Serb forces (Security Council resolution 941 (1994),
Preamble, para. 4). It also expressed concern at reports of mass murder,
unlawful detention and forced labour, rape and deportation of civilians
in Banja Luka and Sanski Most (Security Council resolution 1019 (1995),
Preamble, para. 2).
   303. The General Assembly also condemned specific violations includ-
ing torture, beatings, rape, disappearances, destruction of houses, and
other acts or threats of violence aimed at forcing individuals to leave
their homes (General Assembly resolution 47/147 (1992), para. 4 ; see
also General Assembly resolution 49/10 (1994), Preamble, para. 14, and
General Assembly resolution 50/193 (1995), para. 2).

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169        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  304. The Court will now examine the specific allegations of the
Applicant under this heading, in relation to the various areas and camps
identified as having been the scene of acts causing “bodily or mental
harm” within the meaning of the Convention. As regards the events
of Srebrenica, the Court has already found it to be established that
such acts were committed (paragraph 291 above).
Drina River Valley
   (a) Zvornik
   305. As regards the area of the Drina River Valley, the Applicant has
stressed the perpetration of acts and abuses causing serious bodily or
mental harm in the events at Zvornik. In particular, the Court has been
presented with a report on events at Zvornik which is based on eye-
witness accounts and extensive research (Hannes Tretter et al., “ ‘Ethnic
cleansing’ Operations in the Northeast Bosnian-City of Zvornik
from April through June 1992”, Ludwig Boltzmann Institute of Human
Rights (1994), p. 48). The report of the Ludwig Boltzmann Institute gives
account of a policy of terrorization, forced relocation, torture, rape
during the takeover of Zvornik in April-June 1992. The Report of the
Commission of Experts received 35 reports of rape in the area of
Zvornik in May 1992 (Vol. V, Ann. IX, p. 54).

   (b) Foča
   306. Further acts causing serious bodily and mental harm were per-
petrated in the municipality of Foča. The Applicant, relying on the
Judgment in the Kunarac et al. case (IT-96-23-T and IT-96-23/1-T,
Trial Chamber Judgment, 22 February 2001, paras. 574 and 592), claims,
in particular, that many women were raped repeatedly by Bosnian Serb
soldiers or policemen in the city of Foča.

  (c) Camps
     (i) Batković camp
  307. The Applicant further claims that in Batković camp, prisoners
were frequently beaten and mistreated. The Report of the Commission of
Experts gives an account of a witness statement according to which
“prisoners were forced to perform sexual acts with each other, and some-
times with guards”. The Report continues : “Reports of the frequency
of beatings vary from daily beatings to beatings 10 times each day.”
(Report of the Commission of Experts, Vol. IV, Ann. VIII, p. 62,
para. 469.) Individual witness accounts reported by the Commission of
Experts (Report of the Commission of Experts, Vol. IV, Ann. VIII,
pp. 62-63, and Ann. X, p. 9) provide second-hand testimony that beatings
occurred and prisoners lived in terrible conditions. As already noted

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170         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

above (paragraph 256), however, the periodic Report of Special Rap-
porteur Mazowiecki of 17 November 1992 stated that “[t]he prisoners
. . . appeared to be in good health” (p. 13) ; but according to the Applicant,
Mazowiecki was shown a “model” camp and therefore his impression
was inaccurate. The United States Department of State Dispatch of
19 April 1993 (Vol. 4, No. 16), alleges that in Batković camp, prisoners
were frequently beaten and mistreated. In particular, the Dispatch
records two witness statements according to which “[o]n several occa-
sions, they and other prisoners were forced to remove their clothes and
perform sex acts on each other and on some guards”.

     (ii) Sušica camp
   308. According to the Applicant, rapes and physical assaults were also
perpetrated at Sušica camp ; it pointed out that in the proceedings before
the ICTY, in the “Rule 61 Review of the Indictment” and the Sentencing
Judgment, in the Nikolić case, the accused admitted that many Muslim
women were raped and subjected to degrading physical and verbal abuse
in the camp and at locations outside of it (Nikolić, IT-94-2-T, Sentencing
Judgment, 18 December 2003, paras. 87-90), and that several men were
tortured in that same camp.

     (iii) Foča Kazneno-Popravní Dom camp
  309. With regard to the Foča Kazneno-Popravní Dom camp, the
Applicant asserts that beatings, rapes of women and torture were per-
petrated. The Applicant bases these allegations mainly on the Report of
the Commission of Experts and the United States State Department
Dispatch. The Commission of Experts based its findings on information
provided by a Helsinki Watch Report. A witness claimed that some
prisoners were beaten in Foča KP Dom (Report of the Commission of
Experts, Vol. IV, pp. 128-132) ; similar accounts are contained in the
United States State Department Dispatch. One witness stated that

        “Those running the center instilled fear in the Muslim prisoners
      by selecting certain prisoners for beatings. From his window in
      Room 13, the witness saw prisoners regularly being taken to a build-
      ing where beatings were conducted. This building was close enough
      for him to hear the screams of those who were being beaten.” (Dis-
      patch of the United States Department of State, 19 April 1993,
      No. 16, p. 262.)
   310. The ICTY Trial Chamber in its Kunarac Judgment of 22 Febru-
ary 2001, described the statements of several witnesses as to the poor
and brutal living conditions in Foča KP Dom. These seem to confirm that
the Muslim men and women from Foča, Gacko and Kalinovik muni-
cipalities were arrested, rounded up, separated from each other, and
imprisoned or detained at several detention centres like the Foča KP

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171         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Dom where some of them were killed, raped or severely beaten (Kunarac
et al, IT-96-23-T and IT-96-23/1-T, Trial Chamber Judgment, 22 Feb-
ruary 2001).

Prijedor
  (a) Municipality
   311. Most of the allegations of abuses said by the Applicant to have
occurred in Prijedor have been examined in the section of the present
Judgment concerning the camps situated in Prijedor. However, the Report
of the Commission of Experts refers to a family of nine found dead in
Stara Rijeka in Prijedor, who had obviously been tortured (Vol. V,
Ann. X, p. 41). The Trial Chamber of the ICTY, in its Judgment in the
Tadić case made the following factual finding as to an attack on two
villages in the Kozarac area, Jaskići and Sivci :

         “On 14 June 1992 both villages were attacked. In the morning the
      approaching sound of shots was heard by the inhabitants of Sivci
      and soon after Serb tanks and Serb soldiers entered the village . . .
      There they were made to run along that road, hands clasped behind
      their heads, to a collecting point in the yard of one of the houses. On
      the way there they were repeatedly made to stop, lie down on the
      road and be beaten and kicked by soldiers as they lay there, before
      being made to get up again and run some distance further, where the
      whole performance would be repeated . . . In all some 350 men,
      mainly Muslims but including a few Croats, were treated in this way
      in Sivci.
         On arrival at the collecting point, beaten and in many cases
      covered with blood, some men were called out and questioned
      about others, and were threatened and beaten again. Soon buses
      arrived, five in all, and the men were made to run to them, hands
      again behind the head, and to crowd on to them. They were then
      taken to the Keraterm camp.
         The experience of the inhabitants of the smaller village of Jaskići,
      which contained only 11 houses, on 14 June 1992 was somewhat
      similar but accompanied by the killing of villagers. Like Sivci, Jas-
      kići had received refugees after the attack on Kozarac but by
      14 June 1992 many of those refugees had left for other villages. In
      the afternoon of 14 June 1992 gunfire was heard and Serb soldiers
      arrived in Jaskići and ordered men out of their homes and onto the
      village street, their hands clasped behind their heads ; there they were
      made to lie down and were severely beaten.” (IT-94-1-T, Judgment,
      7 May 1997, paras. 346-348.)

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  (b) Camps
      (i) Omarska camp
   312. As noted above in connection with the killings (paragraph 262),
the Applicant has been able to present abundant and persuasive evidence
of physical abuses causing serious bodily harm in Omarska camp. The
Report of the Commission of Experts contains witness accounts regard-
ing the “white house” used for physical abuses, rapes, torture and, occa-
sionally, killings, and the “red house” used for killings (Vol. IV, Ann. VIII,
pp. 207-222). Those accounts of the sadistic methods of killing are cor-
roborated by United States submissions to the Secretary-General. The
most persuasive and reliable source of evidence may be taken to be the
factual part of the Opinion and Judgment of the ICTY in the Tadić case
(IT-94-1-T, Trial Chamber Judgment, 7 May 1997). Relying on the state-
ments of 30 witnesses, the Tadić Trial Judgment made findings as to
interrogations, beatings, rapes, as well as the torture and humiliation of
Muslim prisoners in Omarska camp (in particular : ibid., paras. 155-158,
163-167). The Trial Chamber was satisfied beyond reasonable doubt of
the fact that several victims were mistreated and beaten by Tadić and suf-
fered permanent harm, and that he had compelled one prisoner to sexu-
ally mutilate another (ibid., paras. 194-206). Findings of mistreatment,
torture, rape and sexual violence at Omarska camp were also made by
the ICTY in other cases ; in particular, the Trial Judgment of 2 Novem-
ber 2001 in the Kvočka et al. case (IT-98-30/1-T, Trial Chamber Judg-
ment, paras. 21-50, and 98-108) — upheld on appeal, the Trial Judgment
of 1 September 2004 in the Brdanin case (IT-99-36-T, Trial Chamber
Judgment, paras. 515-517) and the Trial Judgment of 31 July 2003 in the
Stakić case (IT-97-24-T, Trial Chamber Judgment, paras. 229-336).

      (ii) Keraterm camp
   313. The Applicant also pointed to evidence of beatings and rapes at
Keraterm camp. Several witness accounts are reported in the Report of
the Commission of Experts (Vol. IV, Ann. VIII, pp. 225, 231, 233, 238)
and corroborated by witness accounts reported by the Permanent Mis-
sion of Austria to the United Nations and Helsinki Watch. The attention
of the Court has been drawn to several judgments of the ICTY which
also document the severe physical abuses, rapes and sexual violence that
occurred at this camp. The Trial Judgment of 1 September 2004 in the
Brdanin case found that :

        “At Keraterm camp, detainees were beaten on arrival . . . Beatings
      were carried out with wooden clubs, baseball bats, electric cables
      and police batons . . .

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173         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

         In some cases the beatings were so severe as to result in serious
      injury and death. Beatings and humiliation were often administered
      in front of other detainees. Female detainees were raped in Keraterm
      camp.” (IT-99-36-T, Trial Chamber Judgment, paras. 851-852.)

The Trial Chamber in its Judgment of 31 July 2003 in the Stakić case
found that
      “the detainees at the Keraterm camp were subjected to terrible
      abuse. The evidence demonstrates that many of the detainees at the
      Keraterm camp were beaten on a daily basis. Up until the middle of
      July, most of the beatings happened at night. After the detainees
      from Brdo arrived, around 20 July 1992, there were ‘no rules’, with
      beatings committed both day and night. Guards and others who
      entered the camp, including some in military uniforms carried out
      the beatings. There were no beatings in the rooms since the guards
      did not enter the rooms — people were generally called out day
      and night for beatings.” (IT-97-24-T, Trial Chamber Judgment,
      para. 237.)
The Chamber also found that there was convincing evidence of further
beatings and rape perpetrated in Keraterm camp (ibid., paras. 238-241).

   In the Trial Judgment in the Kvočka et al. case, the Chamber held that,
in addition to the “dreadful” general conditions of life, detainees at Kera-
term camp were “mercilessly beaten” and “women were raped” (IT-98-
30/1-T, Trial Chamber Judgment, 2 November 2001, para. 114).

      (iii) Trnopolje camp
   314. The Court has furthermore been presented with evidence that
beatings and rapes occurred at Trnopolje camp. The rape of 30-40
prisoners on 6 June 1992 is reported by both the Report of the Commis-
sion of Experts (Vol. IV, Ann. VIII, pp. 251-253) and a publication of the
United States State Department. In the Tadić case the Trial Chamber of
the ICTY concluded that at Trnopolje camp beatings occurred and that
“[b]ecause this camp housed the largest number of women and girls, there
were more rapes at this camp than at any other” (IT-94-1-T, Judgment,
7 May 1997, paras. 172-177 (para. 175)). These findings concerning beat-
ings and rapes are corroborated by other Judgments of the ICTY, such
as the Trial Judgment in the Stakić case where it found that,

      “although the scale of the abuse at the Trnopolje camp was less than
      that in the Omarska camp, mistreatment was commonplace. The

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174         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      Serb soldiers used baseball bats, iron bars, rifle butts and their hands
      and feet or whatever they had at their disposal to beat the detainees.
      Individuals were who taken out for questioning would often return
      bruised or injured” (IT-97-24-T, Trial Chamber Judgment, 31 July
      2003, para. 242) ;

and that, having heard the witness statement of a victim, it was satisfied
beyond reasonable doubt “that rapes did occur in the Trnopolje camp”
(ibid., para. 244). Similar conclusions were drawn in the Judgment of
the Trial Chamber in the Brdanin case (IT-99-36-T, 1 September 2004,
paras. 513-514 and 854-857).

Banja Luka
  Manjača camp
   315. With regard to the Manjača camp in Banja Luka, the Applicant
alleges that beatings, torture and rapes were occurring at this camp. The
Applicant relies mainly on the witnesses cited in the Report of the Com-
mission of Experts (Vol. IV, Ann. VIII, pp. 50-54). This evidence is cor-
roborated by the testimony of a former prisoner at the Joint Hearing
before the Select Committee on Intelligence in the United States Senate
on 9 August 1995, and a witness account reported in the Memorial of the
Applicant (United States State Department Dispatch, 2 November 1992,
p. 806). The Trial Chamber, in its Decision on Motion for Judgment of
Acquittal of 16 June 2004, in the Milošević case reproduced the statement
of a witness who testified that,

      “at the Manjaca camp, they were beaten with clubs, cables, bats, or
      other similar items by the military police. The men were placed in
      small, bare stables, which were overcrowded and contained no toilet
      facilities. While at the camp, the detainees received inadequate food
      and water. Their heads were shaved, and they were severely beaten
      during interrogations.” (IT-02-54-T, Decision on Motion for Judg-
      ment of Acquittal, 16 June 2004, para. 178.)

   316. The Applicant refers to the Report of the Commission of Experts,
which contains reports that the Manjača camp held a limited number of
women and that during their stay they were “raped repeatedly”. Muslim
male prisoners were also forced to rape female prisoners (Report of the
Commission of Experts, Vol. IV, Annex VIII, pp. 53-54). The Respon-
dent points out that the Brdanin Trial Judgment found no evidence had
been presented that detainees were subjected to “acts of sexual degrada-
tion” in Manjača.

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175        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Brčko
  Luka camp
   317. The Applicant alleges that torture, rape and beatings occurred at
Luka camp (Brčko). The Report of the Commission of Experts contains
multiple witness accounts, including the evidence of a local guard forced
into committing rape (Vol. IV, Ann. VIII, pp. 93-97). The account of the
rapes is corroborated by multiple sources (United States State Depart-
ment Dispatch, 19 April 1993). The Court notes in particular the findings
of the ICTY Trial Chamber in the Češić case, with regard to acts per-
petrated in the Luka camp. In his plea agreement the accused admitted
several grave incidents, such as beatings and compelling two Muslim
brothers to perform sexual acts with each other (IT-95-10/1-S, Sentencing
Judgment, 11 March 2004, paras. 8-17). These findings are corroborated
by witness statements and the guilty plea in the Jelisić case.

   318. The Respondent does not deny that the camps in Bosnia and
Herzegovina were “in breach of humanitarian law and, in most cases, in
breach of the law of war”, but argues that the conditions in all the camps
were not of the kind described by the Applicant. It stated that all that
had been demonstrated was “the existence of serious crimes, committed
in a particularly complex situation, in a civil and fratricidal war”, but not
the requisite specific intent (dolus specialis).

                                        *
   319. Having carefully examined the evidence presented before it, and
taken note of that presented to the ICTY, the Court considers that it has
been established by fully conclusive evidence that members of the pro-
tected group were systematically victims of massive mistreatment, beat-
ings, rape and torture causing serious bodily and mental harm, during
the conflict and, in particular, in the detention camps. The requirements
of the material element, as defined by Article II (b) of the Convention
are thus fulfilled. The Court finds, however, on the basis of the evidence
before it, that it has not been conclusively established that those atroci-
ties, although they too may amount to war crimes and crimes against
humanity, were committed with the specific intent (dolus specialis) to
destroy the protected group, in whole or in part, required for a finding
that genocide has been perpetrated.

                                    *       *
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176         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

(7) Article II (c) : Deliberately Inflicting on the Group Conditions of Life
 Calculated to Bring about Its Physical Destruction in Whole or in Part

   320. Article II (c) of the Genocide Convention concerns the deliberate
infliction on the group of conditions of life calculated to bring about its
physical destruction in whole or in part. Under this heading, the Applicant
first points to an alleged policy by the Bosnian Serb forces to encircle
civilians of the protected group in villages, towns or entire regions and to
subsequently shell those areas and cut off all supplies in order to starve
the population. Secondly, the Applicant claims that Bosnian Serb forces
attempted to deport and expel the protected group from the areas which
those forces occupied. Finally, the Applicant alleges that Bosnian Serb
forces attempted to eradicate all traces of the culture of the protected group
through the destruction of historical, religious and cultural property.
   321. The Respondent argues that the events referred to by the Appli-
cant took place in a context of war which affected the entire population,
whatever its origin. In its view, “it is obvious that in any armed conflict
the conditions of life of the civilian population deteriorate”. The Respon-
dent considers that, taking into account the civil war in Bosnia and
Herzegovina which generated inhuman conditions of life for the entire
population in the territory of that State, “it is impossible to speak of the
deliberate infliction on the Muslim group alone or the non-Serb group
alone of conditions of life calculated to bring about its destruction”.

   322. The Court will examine in turn the evidence concerning the three
sets of claims made by the Applicant : encirclement, shelling and starva-
tion ; deportation and expulsion ; destruction of historical, religious and
cultural property. It will also go on to consider the evidence presented
regarding the conditions of life in the detention camps already extensively
referred to above (paragraphs 252-256, 262-273, 307-310 and 312-318).

Alleged encirclement, shelling and starvation
   323. The principal incident referred to by the Applicant in this regard
is the siege of Sarajevo by Bosnian Serb forces. Armed conflict broke out
in Sarajevo at the beginning of April 1992 following the recognition by
the European Community of Bosnia and Herzegovina as an independent
State. The Commission of Experts estimated that, between the beginning
of April 1992 and 28 February 1994, in addition to those killed or miss-
ing in the city (paragraph 247 above), 56,000 persons had been wounded
(Report of the Commission of Experts, Vol. II, Ann. VI, p. 8). It was
further estimated that, “over the course of the siege, the city [was] hit
by an average of approximately 329 shell impacts per day, with a high
of 3,777 shell impacts on 22 July 1993” (ibid.). In his report of
28 August 1992, the Special Rapporteur observed that :

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177         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

         “The city is shelled on a regular basis . . . Snipers shoot innocent
      civilians . . .
         The civilian population lives in a constant state of anxiety, leaving
      their homes or shelters only when necessary . . . The public systems
      for distribution of electrical power and water no longer function.
      Food and other basic necessities are scarce, and depend on the airlift
      organized by UNHCR and protected by UNPROFOR.” (Report of
      28 August 1992, paras. 17-18.)

   324. The Court notes that, in resolutions adopted on 16 April and
6 May 1993, the Security Council declared Sarajevo, together with Tuzla,
Žepa, Goražde, Bihać and Srebrenica, to be “safe areas” which should be
free from any armed attack or any other hostile act and fully accessible to
UNPROFOR and international humanitarian agencies (resolutions 819
of 16 April 1993 and 824 of 6 May 1993). However, these resolutions
were not adhered to by the parties to the conflict. In his report of
26 August 1993, the Special Rapporteur noted that

        “Since May 1993 supplies of electricity, water and gas to Sarajevo
      have all but stopped . . . a significant proportion of the damage
      caused to the supply lines has been deliberate, according to United
      Nations Protection Force engineers who have attempted to repair
      them. Repair crews have been shot at by both Bosnian Serb and
      government forces . . .” (Report of 26 August 1993, para. 6.)

He further found that UNHCR food and fuel convoys had been
“obstructed or attacked by Bosnian Serb and Bosnian Croat forces and
sometimes also by governmental forces” (Report of 26 August 1993,
para. 15). The Commission of Experts also found that the “blockade of
humanitarian aid ha[d] been used as an important tool in the siege”
(Report of the Commission of Experts, Ann. VI, p. 17). According to the
Special Rapporteur, the targeting of the civilian population by shelling
and sniping continued and even intensified throughout 1994 and 1995
(Report of 4 November 1994, paras. 27-28 ; Report of 16 January 1995,
para. 13 ; Report of 5 July 1995, paras. 67-70). The Special Rapporteur
noted that

      “[a]ll sides are guilty of the use of military force against civilian
      populations and relief operations in Sarajevo. However, one cannot
      lose sight of the fact that the main responsibility lies with the [Bos-
      nian Serb] forces, since it is they who have adopted the tactic of lay-
      ing siege to the city.” (Report of 17 November 1992, para. 42.)

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178         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  325. The Court notes that in the Galić case, the Trial Chamber of the
ICTY found that the Serb forces (the SRK) conducted a campaign of
sniping and shelling against the civilian population of Sarajevo (Galić,
IT-98-29-T, Judgment, 5 December 2003, para. 583). It was

      “convinced by the evidence in the Trial Record that civilians in
      ARBiH-held areas of Sarajevo were directly or indiscriminately
      attacked from SRK-controlled territory . . ., and that as a result and
      as a minimum, hundreds of civilians were killed and thousands
      others were injured” (ibid., para. 591).
These findings were subsequently confirmed by the Appeals Chamber
(Galić, IT-98-29-A, Judgment, 30 November 2006, paras. 107-109). The
ICTY also found that the shelling which hit the Markale market on
5 February 1994, resulting in 60 persons killed and over 140 injured,
came from behind Bosnian Serb lines, and was deliberately aimed at civil-
ians (ibid., paras. 333 and 335 and Galić, IT-98-29-T, Trial Chamber
Judgment, 5 December 2003, para. 496).

   326. The Respondent argues that the safe areas proclaimed by the
Security Council had not been completely disarmed by the Bosnian army.
For instance, according to testimony given in the Galić case by the
Deputy Commander of the Bosnian army corps covering the Sarajevo
area, the Bosnian army had deployed 45,000 troops within Sarajevo. The
Respondent also pointed to further testimony in that case to the effect
that certain troops in the Bosnian army were wearing civilian clothes and
that the Bosnian army was using civilian buildings for its bases and posi-
tioning its tanks and artillery in public places. Moreover, the Respondent
observes that, in his book, Fighting for Peace, General Rose was of the
view that military equipment was installed in the vicinity of civilians, for
instance, in the grounds of the hospital in Sarajevo and that “[t]he Bos-
nians had evidently chosen this location with the intention of attracting
Serb fire, in the hope that the resulting carnage would further tilt inter-
national support in their favour” (Michael Rose, Fighting for Peace,
1998, p. 254).

   327. The Applicant also points to evidence of sieges of other towns in
Bosnia and Herzegovina. For instance, with regard to Goražde, the Spe-
cial Rapporteur found that the enclave was being shelled and had been
denied convoys of humanitarian aid for two months. Although food was
being air-dropped, it was insufficient (Report of 5 May 1992, para. 42).
In a later report, the Special Rapporteur noted that, as of spring 1994,
the town had been subject to a military offensive by Bosnian Serb forces,
during which civilian objects including the hospital had been targeted
and the water supply had been cut off (Report of 10 June 1994, paras. 7-
12). Humanitarian convoys were harassed including by the detention
of UNPROFOR personnel and the theft of equipment (Report of

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179         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

19 May 1994, paras. 17 et seq.). Similar patterns occurred in Bihać,
Tuzla, Cerska and Maglaj (Bihać : Special Rapporteur’s Report of
28 August 1992, para. 20 ; Report of the Secretary-General pursuant to
resolution 959 (1994), para. 17 ; Special Rapporteur’s Report of 16 Janu-
ary 1995, para. 12 ; Tuzla : Report of the Secretary-General pursuant to
resolutions 844 (1993), 836 (1993) and 776 (1992), paras. 2-4; Special
Rapporteur’s Report of 5 July 1995 ; Cerska : Special Rapporteur’s Report
of 5 May 1993, paras. 8-17 ; Maglaj: Special Rapporteur’s Report of
17 November 1993, para. 93).

   328. The Court finds that virtually all the incidents recounted by the
Applicant have been established by the available evidence. It takes
account of the assertion that the Bosnian army may have provoked
attacks on civilian areas by Bosnian Serb forces, but does not consider
that this, even if true, can provide any justification for attacks on civilian
areas. On the basis of a careful examination of the evidence presented by
the Parties, the Court concludes that civilian members of the protected
group were deliberately targeted by Serb forces in Sarajevo and other
cities. However, reserving the question whether such acts are in prin-
ciple capable of falling within the scope of Article II, paragraph (c),
of the Convention, the Court does not find sufficient evidence that the
alleged acts were committed with the specific intent to destroy the
protected group in whole or in part. For instance, in the Galić case,
the ICTY found that

      “the attacks on civilians were numerous, but were not consistently so
      intense as to suggest an attempt by the SRK to wipe out or even
      deplete the civilian population through attrition . . . the only reason-
      able conclusion in light of the evidence in the Trial Record is that the
      primary purpose of the campaign was to instil in the civilian popula-
      tion a state of extreme fear” (Galić, IT-98-29-T, Trial Chamber
      Judgment, 5 December 2003, para. 593).

These findings were not overruled by the judgment of the Appeals
Chamber of 30 November 2006 (Galić, IT-98-29-A, Judgment : see e.g.,
paras. 107-109, 335 and 386-390). The Special Rapporteur of the United
Nations Commission on Human Rights was of the view that “[t]he siege,
including the shelling of population centres and the cutting off of supplies
of food and other essential goods, is another tactic used to force Muslims
and ethnic Croatians to flee” (Report of 28 August 1992, para. 17). The
Court thus finds that it has not been conclusively established that the acts
were committed with the specific intent (dolus specialis) to destroy the
protected group in whole or in part.

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180        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Deportation and expulsion

   329. The Applicant claims that deportations and expulsions occurred
systematically all over Bosnia and Herzegovina. With regard to Banja
Luka, the Special Rapporteur noted that since late November 1993, there
had been a “sharp rise in repossessions of apartments, whereby Muslim
and Croat tenants [were] summarily evicted” and that “a form of housing
agency ha[d] been established . . . which chooses accommodation for
incoming Serb displaced persons, evicts Muslim or Croat residents and
reputedly receives payment for its services in the form of possessions left
behind by those who have been evicted” (Report of 21 February 1994,
para. 8). In a report dated 21 April 1995 dedicated to the situation in
Banja Luka, the Special Rapporteur observed that since the beginning of
the war, there had been a 90 per cent reduction in the local Muslim popu-
lation (Report of 21 April 1995, para. 4). He noted that a forced labour
obligation imposed by the de facto authorities in Banja Luka, as well as
“the virulence of the ongoing campaign of violence” had resulted in
“practically all non-Serbs fervently wishing to leave the Banja Luka
area” (Report of 21 April 1995, para. 24). Those leaving Banja Luka
were required to pay fees and to relinquish in writing their claim to their
homes, without reimbursement (Report of 21 April 1995, para. 26). The
displacements were “often very well organized, involving the bussing of
people to the Croatian border, and involve[d] large numbers of people”
(Report of 4 November 1994, para. 23). According to the Special Rap-
porteur, “[o]n one day alone in mid-June 1994, some 460 Muslims and
Croats were displaced” (ibid.).

   330. As regards Bijeljina, the Special Rapporteur observed that,
between mid-June and 17 September 1994, some 4,700 non-Serbs were
displaced from the Bijeljina and Janja regions. He noted that many of the
displaced, “whether forced or choosing to depart, were subject to harass-
ment and theft by the Bosnian Serb forces orchestrating the displace-
ment” (Report of 4 November 1994, para. 21). These reports were con-
firmed by those of non-governmental organizations based on witness
statements taken on the ground (Amnesty International, “Bosnia and
Herzegovina : Living for the Day — Forced expulsions from Bijeljina and
Janja”, December 1994, p. 2).

   331. As for Zvornik, the Commission of Experts, relying on a study
carried out by the Ludwig Boltzmann Institute of Human Rights based
on an evaluation of 500 interviews of individuals who had fled the area,
found that a systematic campaign of forced deportation had occurred
(Report of the Commission of Experts, Vol. I, Ann. IV, pp. 55 et seq).
The study observed that Bosnian Muslims obtained an official stamp on
their identity card indicating a change of domicile in exchange for trans-
ferring their property to an “agency for the exchange of houses” which
was subsequently a prerequisite for being able to leave the town (Lud-

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181        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

wig Boltzmann Institute of Human Rights, “‘Ethnic Cleansing Opera-
tions’ in the northeast Bosnian city of Zvornik from April through
June 1992”, pp. 28-29). According to the study, forced deportations of
Bosnian Muslims began in May/June 1992 by bus to Mali Zvornik and
from there to the Bosnian town of Tuzla or to Subotica on the Serbian-
Hungarian border (ibid., pp. 28 and 35-36). The Special Rapporteur’s
report of 10 February 1993 supports this account, stating that deportees
from Zvornik had been “ordered, some at gunpoint, to board buses and
trucks and later trains”, provided with Yugoslav passports and subse-
quently taken to the Hungarian border to be admitted as refugees (Report
of 10 February 1993, para. 99).

   332. According to the Trial Chamber of the ICTY in its review of the
indictment in the cases against Karadžić and Mladić, “[t]housands of
civilians were unlawfully expelled or deported to other places inside and
outside the Republic of Bosnia and Herzegovina” and “[t]he result of
these expulsions was the partial or total elimination of Muslims and Bos-
nian Croats in some of [the] Bosnian Serb-held regions of Bosnia and
Herzegovina”. The Chamber further stated that “[i]n the municipalities of
Prijedor, Foča, Vlasenica, Brčko and Bosanski Šamac, to name but a few,
the once non-Serbian majority was systematically exterminated or
expelled by force or intimidation” (Karadžić and Mladić, IT-95-5-R61
and IT-95-18-R61, Review of the Indictment pursuant to Rule 61 of the
Rules of Procedure and Evidence, 11 July 1996, para. 16).

   333. The Respondent argues that displacements of populations may
be necessary according to the obligations set down in Articles 17 and 49,
paragraph 2, of the Geneva Convention relative to the Protection of
Civilian Persons in Time of War, for instance if the security of the popu-
lation or imperative military reasons so demand. It adds that the dis-
placement of populations has always been a way of settling certain con-
flicts between opposing parties and points to a number of examples of
forced population displacements in history following an armed conflict.
The Respondent also argues that the mere expulsion of a group cannot
be characterized as genocide, but that, according to the ICTY Judgment
in the Stakić case, “[a] clear distinction must be drawn between physical
destruction and mere dissolution of a group” and “[t]he expulsion of a
group or part of a group does not in itself suffice for genocide” (Stakić,
IT-97-24-T, Trial Chamber Judgment, 31 July 2003, para. 519).

   334. The Court considers that there is persuasive and conclusive evi-
dence that deportations and expulsions of members of the protected
group occurred in Bosnia and Herzegovina. With regard to the Respond-
ent’s argument that in time of war such deportations or expulsions may
be justified under the Geneva Convention, or may be a normal way of
settling a conflict, the Court would observe that no such justification

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182         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

could be accepted in the face of proof of specific intent (dolus specialis).
However, even assuming that deportations and expulsions may be
categorized as falling within Article II, paragraph (c), of the Geno-
cide Convention, the Court cannot find, on the basis of the evidence
presented to it, that it is conclusively established that such deporta-
tions and expulsions were accompanied by the intent to destroy the
protected group in whole or in part (see paragraph 190 above).

Destruction of historical, religious and cultural property
   335. The Applicant claims that throughout the conflict in Bosnia and
Herzegovina, Serb forces engaged in the deliberate destruction of histori-
cal, religious and cultural property of the protected group in “an attempt
to wipe out the traces of their very existence”.
   336. In the Tadić case, the ICTY found that “[n]on-Serb cultural and
religious symbols throughout the region were targeted for destruction” in
the Banja Luka area (Tadić, IT-94-1-T, Trial Chamber Judgment,
7 May 1997, para. 149). Further, in reviewing the indictments of Karad-
žić and Mladić, the Trial Chamber stated that :

        “Throughout the territory of Bosnia and Herzegovina under their
      control, Bosnian Serb forces . . . destroyed, quasi-systematically, the
      Muslim and Catholic cultural heritage, in particular, sacred sites.
      According to estimates provided at the hearing by an expert witness,
      Dr. Kaiser, a total of 1.123 mosques, 504 Catholic churches and five
      synagogues were destroyed or damaged, for the most part, in the
      absence of military activity or after the cessation thereof.

         This was the case in the destruction of the entire Islamic and
      Catholic heritage in the Banja Luka area, which had a Serbian
      majority and the nearest area of combat to which was several dozen
      kilometres away. All of the mosques and Catholic churches were
      destroyed. Some mosques were destroyed with explosives and the
      ruins were then levelled and the rubble thrown in the public dumps
      in order to eliminate any vestige of Muslim presence.
         Aside from churches and mosques, other religious and cultural
      symbols like cemeteries and monasteries were targets of the attacks.”
      (Karadžić and Mladić, Review of the Indictment Pursuant to
      Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 15.)

In the Brdanin case, the Trial Chamber was “satisfied beyond reasonable
doubt that there was wilful damage done to both Muslim and Roman
Catholic religious buildings and institutions in the relevant municipalities
by Bosnian Serb forces” (Brdanin, IT-99-36-T, Judgment, 1 Septem-
ber 2004, paras. 640 and 658). On the basis of the findings regarding a
number of incidents in various regions of Bosnia and Herzegovina, the

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183        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Trial Chamber concluded that a “campaign of devastation of institutions
dedicated to religion took place throughout the conflict” but “intensified
in the summer of 1992” and that this concentrated period of significant
damage was “indicative that the devastation was targeted, controlled and
deliberate” (Brdanin, IT-99-36-T, paras. 642-657). For instance, the Trial
Chamber found that the Bosanska Krupa town mosque was mined by
Bosnian Serb forces in April 1992, that two mosques in Bosanski Petro-
vac were destroyed by Bosnian Serb forces in July 1992 and that the
mosques in Staro Šipovo, Bešnjevo and Pljeva were destroyed on
7 August 1992 (ibid., paras. 644, 647 and 656).

   337. The Commission of Experts also found that religious monuments
especially mosques and churches had been destroyed by Bosnian Serb
forces (Report of the Commission of Experts, Vol. I, Ann. IV, pp. 5, 9,
21 ff.). In its report on the Prijedor region, the Commission found that at
least five mosques and associated buildings in Prijedor town had been
destroyed and noted that it was claimed that all 16 mosques in the
Kozarac area had been destroyed and that not a single mosque, or other
Muslim religious building, remained intact in the Prijedor region (Report
of the Commission of Experts, Vol. I, Ann. V, p. 106). The report noted
that those buildings were “allegedly not desecrated, damaged and
destroyed for any military purpose nor as a side-effect of the military
operations as such” but rather that the destruction “was due to later
separate operations of dynamiting” (ibid.).

  338. The Special Rapporteur found that, during the conflict, “many
mosques, churches and other religious sites, including cemeteries and
monasteries, have been destroyed or profaned” (Report of 17 Novem-
ber 1992, para. 26). He singled out the “systematic destruction and profa-
nation of mosques and Catholic churches in areas currently or previously
under [Bosnian Serb] control” (Report of 17 November 1992, para. 26).

   339. Bosnia and Herzegovina called as an expert Mr. András Riedl-
mayer, who had carried out a field survey on the destruction of cultural
heritage in 19 municipalities in Bosnia and Herzegovina for the Prosecu-
tor of the ICTY in the Milošević case and had subsequently studied seven
further municipalities in two other cases before the ICTY (“Destruction
of Cultural Heritage in Bosnia and Herzegovina, 1992-1996 : A Post-war
Survey of Selected Municipalities”, Milošević, IT-02-54-T, Exhibit
Number P486). In his report prepared for the Milošević case, Mr. Riedl-
mayer documented 392 sites, 60 per cent of which were inspected first
hand while for the other 40 per cent his assessment was based on
photographs and information obtained from other sources judged to be
reliable and where there was corroborating documentation (Riedl-
mayer Report, p. 5).

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184         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  340. The report compiled by Mr. Riedlmayer found that of the
277 mosques surveyed, none were undamaged and 136 were almost or
entirely destroyed (Riedlmayer Report, pp. 9-10). The report found that :

        “The damage to these monuments was clearly the result of attacks
      directed against them, rather than incidental to the fighting. Evi-
      dence of this includes signs of blast damage indicating explosives
      placed inside the mosques or inside the stairwells of minarets ; many
      mosques [were] burnt out. In a number of towns, including Bijeljina,
      Janja (Bijeljina municipality), Foča, Banja Luka, Sanski Most,
      Zvornik and others, the destruction of mosques took place while the
      area was under the control of Serb forces, at times when there was
      no military action in the immediate vicinity.” (Ibid., p. 11.)

The report also found that, following the destruction of mosques :
      “the ruins [of the mosques] were razed and the sites levelled with
      heavy equipment, and all building materials were removed from the
      site . . . Particularly well-documented instances of this practice
      include the destruction and razing of 5 mosques in the town of
      Bijeljina ; of 2 mosques in the town of Janja (in Bijeljina municipal-
      ity) ; of 12 mosques and 4 turbes in Banja Luka ; and of 3 mosques in
      the city of Brčko.” (Ibid., p. 12.)

Finally, the Report noted that the sites of razed mosques had been
“turned into rubbish tips, bus stations, parking lots, automobile repair
shops, or flea markets” (ibid., p. 14), for example, a block of flats and
shops had been erected on the site of the Zamlaz Mosque in Zvornik and
a new Serbian Orthodox church was built on the site of the destroyed
Divic Mosque (ibid., p. 14).

  341. Mr. Riedlmayer’s report together with his testimony before the
Court and other corroborative sources detail the destruction of the cul-
tural and religious heritage of the protected group in numerous locations
in Bosnia and Herzegovina. For instance, according to the evidence
before the Court, 12 of the 14 mosques in Mostar were destroyed or dam-
aged and there are indications from the targeting of the minaret that the
destruction or damage was deliberate (Council of Europe, Information
Report : The Destruction by War of the Cultural Heritage in Croatia and
Bosnia-Herzegovina, Parliamentary Assembly doc. 6756, 2 February 1993,
paras. 129 and 155). In Foča, the town’s 14 historic mosques were alleg-
edly destroyed by Serb forces. In Banja Luka, all 16 mosques were
destroyed by Serb forces including the city’s two largest mosques,

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185        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

the Ferhadija Mosque (built in 1578) and the Arnaudija Mosque (built in
1587) (United States Department of State, Bureau of Public Affairs, Dis-
patch, 26 July 1993, Vol. 4, No. 30, pp. 547-548 ; “War Crimes in Bosnia-
Herzegovina : UN Cease-Fire Won’t Help Banja Luka”, Human Rights
Watch/Helsinki Watch, June 1994, Vol. 6, No. 8, pp. 15-16 ; The Humani-
tarian Law Centre, Spotlight Report, No. 14, August 1994, pp. 143-144).

   342. The Court notes that archives and libraries were also subjected to
attacks during the war in Bosnia and Herzegovina. On 17 May 1992, the
Institute for Oriental Studies in Sarajevo was bombarded with incendiary
munitions and burnt, resulting in the loss of 200,000 documents including
a collection of over 5,000 Islamic manuscripts (Riedlmayer Report, p. 18 ;
Council of Europe, Parliamentary Assembly ; Second Information Report
on War Damage to the Cultural Heritage in Croatia and Bosnia-Herze-
govina, doc. 6869, 17 June 1993, p. 11, Ann. 38). On 25 August 1992,
Bosnia’s National Library was bombarded and an estimated 1.5 million
volumes were destroyed (Riedlmayer Report, p. 19). The Court observes
that, although the Respondent considers that there is no certainty as to
who shelled these institutions, there is evidence that both the Institute for
Oriental Studies in Sarajevo and the National Library were bombarded
from Serb positions.

   343. The Court notes that, in cross-examination of Mr. Riedlmayer,
counsel for the Respondent pointed out that the municipalities included
in Mr. Riedlmayer’s report only amounted to 25 per cent of the territory
of Bosnia and Herzegovina. Counsel for the Respondent also called into
question the methodology used by Mr. Riedlmayer in compiling his
report. However, having closely examined Mr. Riedlmayer’s report and
having listened to his testimony, the Court considers that Mr. Riedl-
mayer’s findings do constitute persuasive evidence as to the destruction
of historical, cultural and religious heritage in Bosnia and Herzegovina
albeit in a limited geographical area.

   344. In light of the foregoing, the Court considers that there is conclu-
sive evidence of the deliberate destruction of the historical, cultural and
religious heritage of the protected group during the period in question.
The Court takes note of the submission of the Applicant that the destruc-
tion of such heritage was “an essential part of the policy of ethnic puri-
fication” and was “an attempt to wipe out the traces of [the] very exist-
ence” of the Bosnian Muslims. However, in the Court’s view, the
destruction of historical, cultural and religious heritage cannot be con-
sidered to constitute the deliberate infliction of conditions of life calcu-
lated to bring about the physical destruction of the group. Although such
destruction may be highly significant inasmuch as it is directed to the
elimination of all traces of the cultural or religious presence of a group,

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and contrary to other legal norms, it does not fall within the categories of
acts of genocide set out in Article II of the Convention. In this regard, the
Court observes that, during its consideration of the draft text of the Con-
vention, the Sixth Committee of the General Assembly decided not to
include cultural genocide in the list of punishable acts. Moreover, the
ILC subsequently confirmed this approach, stating that :

         “As clearly shown by the preparatory work for the Convention . . .,
      the destruction in question is the material destruction of a group
      either by physical or by biological means, not the destruction of the
      national, linguistic, religious, cultural or other identity of a particu-
      lar group.” (Report of the International Law Commission on the
      work of its Forty-eighth Session, Yearbook of the International Law
      Commission 1996, Vol. II, Part Two, pp. 45-46, para. 12.)
Furthermore, the ICTY took a similar view in the Krstić case, finding
that even in customary law, “despite recent developments”, the definition
of acts of genocide is limited to those seeking the physical or biological
destruction of a group (Krstić, IT-98-33-T, Trial Chamber Judgment,
2 August 2001, para. 580). The Court concludes that the destruction of
historical, religious and cultural heritage cannot be considered to be a
genocidal act within the meaning of Article II of the Genocide Conven-
tion. At the same time, it also endorses the observation made in the
Krstić case that “where there is physical or biological destruction there
are often simultaneous attacks on the cultural and religious property and
symbols of the targeted group as well, attacks which may legitimately be
considered as evidence of an intent to physically destroy the group”
(ibid.).

Camps
  345. The Court notes that the Applicant has presented substantial
evidence as to the conditions of life in the detention camps and much
of this evidence has already been discussed in the sections regarding
Articles II (a) and (b). The Court will briefly examine the evidence
presented by the Applicant which relates specifically to the conditions
of life in the principal camps.
  (a) Drina River Valley
      (i) Sušica camp
  346. In the Sentencing Judgment in the case of Dragan Nikolić, the
Commander of Sušica camp, the ICTY found that he subjected detainees
to inhumane living conditions by depriving them of adequate food,
water, medical care, sleeping and toilet facilities (Nikolić, IT-94-2-S, Sen-
tencing Judgment, 18 December 2003, para. 69).

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187         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      (ii) Foča Kazneno-Popravní Dom camp
  347. In the Krnojelac case, the ICTY Trial Chamber made the follow-
ing findings regarding the conditions at the camp :

      “the non-Serb detainees were forced to endure brutal and inade-
      quate living conditions while being detained at the KP Dom, as a
      result of which numerous individuals have suffered lasting physical
      and psychological problems. Non-Serbs were locked in their rooms
      or in solitary confinement at all times except for meals and work
      duty, and kept in overcrowded rooms even though the prison had
      not reached its capacity. Because of the overcrowding, not everyone
      had a bed or even a mattress, and there were insufficient blankets.
      Hygienic conditions were poor. Access to baths or showers, with no
      hot water, was irregular at best. There were insufficient hygienic
      products and toiletries. The rooms in which the non-Serbs were held
      did not have sufficient heating during the harsh winter of 1992.
      Heaters were deliberately not placed in the rooms, windowpanes
      were left broken and clothes made from blankets to combat the cold
      were confiscated. Non-Serb detainees were fed starvation rations
      leading to severe weight loss and other health problems. They were
      not allowed to receive visits after April 1992 and therefore could not
      supplement their meagre food rations and hygienic supplies”. (Krno-
      jelac, IT-97-25-T, Judgment, 15 March 2002, para. 440.)

  (b) Prijedor
      (i) Omarska camp
  348. In the Trial Judgment in the Kvočka et al. case, the ICTY Trial
Chamber provided the following description of the poor conditions in the
Omarska camp based on the accounts of detainees :

         “Detainees were kept in inhuman conditions and an atmosphere
      of extreme mental and physical violence pervaded the camp. Intimi-
      dation, extortion, beatings, and torture were customary practices.
      The arrival of new detainees, interrogations, mealtimes, and use of
      the toilet facilities provided recurrent opportunities for abuse. Out-
      siders entered the camp and were permitted to attack the detainees
      at random and at will . . .

      . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
        The Trial Chamber finds that the detainees received poor quality
      food that was often rotten or inedible, caused by the high tempera-
      tures and sporadic electricity during the summer of 1992. The food

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      was sorely inadequate in quantity. Former detainees testified of the
      acute hunger they suffered in the camp : most lost 25 to 35 kilograms
      in body weight during their time at Omarska ; some lost considerably
      more.” (Kvočka et al., IT-98-30/1-T, Trial Chamber Judgment,
      2 November 2001, paras. 45 and 55.)

      (ii) Keraterm camp
  349. The Stakić Trial Judgment contained the following description of
conditions in the Keraterm camp based on multiple witness accounts :

         “The detainees slept on wooden pallets used for the transport of
      goods or on bare concrete in a big storage room. The conditions
      were cramped and people often had to sleep on top of each other.
      In June 1992, Room 1, which according to witness statements was
      slightly larger than Courtroom 2 of this Tribunal (98.6 m2), held
      320 people and the number continued to grow. The detainees were
      given one meal a day, made up of two small slices of bread and some
      sort of stew. The rations were insufficient for the detainees. Although
      families tried to deliver food and clothing every day they rarely suc-
      ceeded. The detainees could see their families walking to the camp
      and leaving empty-handed, so in all likelihood someone at the gates
      of the camp took the food and prevented it from being distributed to
      the detainees.” (Stakić, IT-97-24-T, Trial Chamber Judgment, 31 July
      2003, para. 163.)

      (iii) Trnopolje camp
  350. With respect to the Trnopolje camp, the Stakić Trial Judgment
described the conditions as follows, noting that they were slightly better
than at Omarska and Keraterm :

         “The detainees were provided with food at least once a day and,
      for some time, the families of detainees were allowed to bring food.
      However the quantity of food available was insufficient and people
      often went hungry. Moreover, the water supply was insufficient and
      the toilet facilities inadequate. The majority of the detainees slept in
      the open air. Some devised makeshift . . . shelters of blankets and
      plastic bags. While clearly inadequate, the conditions in the Trnopo-
      lje camp were not as appalling as those that prevailed in Omarska
      and Keraterm.” (Ibid., para. 190.)

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189         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  (c) Banja Luka
      Manjača camp
  351. According to ICTY Trial Chamber in the Plavšić Sentencing
Judgment :
      “the sanitary conditions in Manjača were ‘disastrous . . . inhuman
      and really brutal’ : the concept of sanitation did not exist. The tem-
      perature inside was low, the inmates slept on the concrete floor and
      they relieved themselves in the compound or in a bucket placed by
      the door at night. There was not enough water, and any water that
      became available was contaminated. In the first three months of
      Adil Draganović’s detention, Manjača was a ‘camp of hunger’ and
      when there was food available, it was of a very poor quality. The
      inmates were given two small meals per day, which usually consisted
      of half a cup of warm tea, which was more like warm water, and a
      small piece of thin, ‘transparent’ bread. Between two and a half
      thousand men there were only 90 loaves of bread, with each loaf
      divided into 20 or 40 pieces. Most inmates lost between 20 and 30
      kilograms of body weight while they were detained at Manjača. The
      witness believes that had the ICRC and UNHCR not arrived, the
      inmates would have died of starvation.” (Plavšić, IT-00-39-S and
      40/1-S, Sentencing Judgment, 27 February 2003, para. 48.)

  (d) Bosanski Šamac
  352. In its Judgment in the Simić case, the Trial Chamber made the
following findings :
      “the detainees who were imprisoned in the detention centres in
      Bosanski Šamac were confined under inhumane conditions. The
      prisoners were subjected to humiliation and degradation. The forced
      singing of ‘Chetnik’ songs and the verbal abuse of being called
      ‘ustasha’ or ‘balija’ were forms of such abuse and humiliation of
      the detainees. They did not have sufficient space, food or water. They
      suffered from unhygienic conditions, and they did not have appro-
      priate access to medical care. These appalling detention conditions,
      the cruel and inhumane treatment through beatings and the acts of
      torture caused severe physical suffering, thus attacking the very
      fundamentals of human dignity . . . This was done because of the
      non-Serb ethnicity of the detainees.” (Simić, IT-95-9-T, Judgment,
      17 October 2003, para. 773.)

  353. The Respondent does not deny that the camps in Bosnia and
Herzegovina were in breach of humanitarian law and, in most cases, in
breach of the law of war. However, it notes that, although a number of

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190         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

detention camps run by the Serbs in Bosnia and Herzegovina were the
subject of investigation and trials at the ICTY, no conviction for geno-
cide was handed down on account of any criminal acts committed in
those camps. With specific reference to the Manjača camp, the Respon-
dent points out that the Special Envoy of the United Nations Secretary-
General visited the camp in 1992 and found that it was being run
correctly and that a Muslim humanitarian organization also visited
the camp and found that “material conditions were poor, especially con-
cerning hygiene [b]ut there were no signs of maltreatment or execution
of prisoners”.

  354. On the basis of the elements presented to it, the Court considers
that there is convincing and persuasive evidence that terrible conditions
were inflicted upon detainees of the camps. However, the evidence
presented has not enabled the Court to find that those acts were accom-
panied by specific intent (dolus specialis) to destroy the protected group,
in whole or in part. In this regard, the Court observes that, in none of
the ICTY cases concerning camps cited above, has the Tribunal found
that the accused acted with such specific intent (dolus specialis).

                                    *   *
      (8) Article II (d) : Imposing Measures to Prevent Births within
                             the Protected Group
  355. The Applicant invoked several arguments to show that measures
were imposed to prevent births, contrary to the provision of Article II,
paragraph (d), of the Genocide Convention. First, the Applicant claimed
that the
      “forced separation of male and female Muslims in Bosnia and
      Herzegovina, as systematically practised when various municipalities
      were occupied by the Serb forces . . . in all probability entailed a
      decline in the birth rate of the group, given the lack of physical con-
      tact over many months”.

The Court notes that no evidence was provided in support of this state-
ment.
  356. Secondly, the Applicant submitted that rape and sexual violence
against women led to physical trauma which interfered with victims’
reproductive functions and in some cases resulted in infertility. However,
the only evidence adduced by the Applicant was the indictment in the
Gagović case before the ICTY in which the Prosecutor stated that one
witness could no longer give birth to children as a result of the sexual
abuse she suffered (Gagović et al., IT-96-23-I, Initial Indictment, 26 June
1996, para. 7.10). In the Court’s view, an indictment by the Prosecutor

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does not constitute persuasive evidence (see paragraph 217 above). More-
over, it notes that the Gagović case did not proceed to trial due to the
death of the accused.

   357. Thirdly, the Applicant referred to sexual violence against men
which prevented them from procreating subsequently. In support of this
assertion, the Applicant noted that, in the Tadić case, the Trial Chamber
found that, in Omarska camp, the prison guards forced one Bosnian
Muslim man to bite off the testicles of another Bosnian Muslim man
(Tadić, IT-94-1-T, Judgment, 7 May 1997, para. 198). The Applicant also
cited a report in the newspaper, Le Monde, on a study by the World
Health Organization and the European Union on sexual assaults on men
during the conflict in Bosnia and Herzegovina, which alleged that sexual
violence against men was practically always accompanied by threats to
the effect that the victim would no longer produce Muslim children. The
article in Le Monde also referred to a statement by the President of a
non-governmental organization called the Medical Centre for Human
Rights to the effect that approximately 5,000 non-Serb men were the vic-
tims of sexual violence. However, the Court notes that the article in Le
Monde is only a secondary source. Moreover, the results of the World
Health Organization and European Union study were only preliminary,
and there is no indication as to how the Medical Centre for Human
Rights arrived at the figure of 5,000 male victims of sexual violence.

   358. Fourthly, the Applicant argued that rape and sexual violence
against men and women led to psychological trauma which prevented
victims from forming relationships and founding a family. In this regard,
the Applicant noted that in the Akayesu case, the ICTR considered that
“rape can be a measure intended to prevent births when the person raped
refuses subsequently to procreate” (Akayesu, ICTR-96-4-T, Trial Cham-
ber Judgment, 2 September 1998, para. 508). However, the Court notes
that the Applicant presented no evidence that this was the case for
women in Bosnia and Herzegovina.

  359. Fifthly, the Applicant considered that Bosnian Muslim women
who suffered sexual violence might be rejected by their husbands or not
be able to find a husband. Again, the Court notes that no evidence was
presented in support of this statement.

   360. The Respondent considers that the Applicant “alleges no fact,
puts forward no serious argument, and submits no evidence” for its alle-
gations that rapes were committed in order to prevent births within a
group and notes that the Applicant’s contention that there was a decline
in births within the protected group is not supported by any evidence
concerning the birth rate in Bosnia and Herzegovina either before or
after the war.

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192        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  361. Having carefully examined the arguments of the Parties, the
Court finds that the evidence placed before it by the Applicant does not
enable it to conclude that Bosnian Serb forces committed acts which
could be qualified as imposing measures to prevent births in the protected
group within the meaning of Article II (d) of the Convention.

                                  *   *
(9) Article II (e) : Forcibly Transferring Children of the Protected Group
                              to Another Group
  362. The Applicant claims that rape was used “as a way of affecting
the demographic balance by impregnating Muslim women with the sperm
of Serb males” or, in other words, as “procreative rape”. The Applicant
argues that children born as a result of these “forced pregnancies” would
not be considered to be part of the protected group and considers that
the intent of the perpetrators was to transfer the unborn children to the
group of Bosnian Serbs.

  363. As evidence for this claim, the Applicant referred to a number of
sources including the following. In the indictment in the Gagović et al.
case, the Prosecutor alleged that one of the witnesses was raped by two
Bosnian Serb soldiers and that “[b]oth perpetrators told her that she
would now give birth to Serb babies” (Gagović et al., IT-96-23-I, Initial
Indictment, 26 June 1996, para. 9.3). However, as in paragraph 356
above, the Court notes that an indictment cannot constitute persuasive
evidence for the purposes of the case now before it and that the Gagović
case did not proceed to trial. The Applicant further referred to the
Report of the Commission of Experts which stated that one woman had
been detained and raped daily by three or four soldiers and that “[s]he
was told that she would give birth to a chetnik boy” (Report of the Com-
mission of Experts, Vol. I, p. 59, para. 248).

   364. The Applicant also cited the Review of the Indictment in the
Karadžić and Mladić cases in which the Trial Chamber stated that
“[s]ome camps were specially devoted to rape, with the aim of forcing the
birth of Serbian offspring, the women often being interned until it was
too late to undergo an abortion” and that “[i]t would seem that the aim
of many rapes was enforced impregnation” (Karadžić and Mladić, IT-95-
5-R61 and IT-95-18-R61, Review of the Indictment pursuant to Rule 61
of the Rules of Procedure and Evidence, 11 July 1996, para. 64). How-
ever, the Court notes that this finding of the Trial Chamber was based
only on the testimony of one amicus curiae and on the above-mentioned
incident reported by the Commission of Experts (ibid., para. 64,
footnote 154).

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193        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  365. Finally, the Applicant noted that in the Kunarac case, the ICTY
Trial Chamber found that, after raping one of the witnesses, the accused
had told her that “she would now carry a Serb baby and would not know
who the father would be” (Kunarac et al. cases, Nos. IT-96-23-T and
IT-96-23/1-T, Judgment, 22 February 2001, para. 583).
  366. The Respondent points out that Muslim women who had been
raped gave birth to their babies in Muslim territory and consequently the
babies would have been brought up not by Serbs but, on the contrary, by
Muslims. Therefore, in its view, it cannot be claimed that the children
were transferred from one group to the other.
  367. The Court, on the basis of the foregoing elements, finds that the
evidence placed before it by the Applicant does not establish that there
was any form of policy of forced pregnancy, nor that there was any aim
to transfer children of the protected group to another group within the
meaning of Article II (e) of the Convention.

                                  *   *
        (10) Alleged Genocide outside Bosnia and Herzegovina

   368. In the submissions in its Reply, the Applicant has claimed that
the Respondent has violated its obligations under the Genocide Conven-
tion “by destroying in part, and attempting to destroy in whole, national,
ethnical or religious groups within the, but not limited to the, territory
of Bosnia and Herzegovina, including in particular the Muslim
population . . .” (emphasis added). The Applicant devoted a section in its
Reply to the contention that acts of genocide, for which the Respondent
was allegedly responsible, also took place on the territory of the FRY ;
these acts were similar to those perpetrated on Bosnian territory, and the
constituent elements of “ethnic cleansing as a policy” were also found in
the territory of the FRY. This question of genocide committed within the
FRY was not actively pursued by the Applicant in the course of the oral
argument before the Court ; however, the submission quoted above was
maintained in the final submissions presented at the hearings, and the
Court must therefore address it. It was claimed by the Applicant that the
genocidal policy was aimed not only at citizens of Bosnia and Herze-
govina, but also at Albanians, Sandžak Muslims, Croats, Hungarians
and other minorities ; however, the Applicant has not established to the
satisfaction of the Court any facts in support of that allegation. The
Court has already found (paragraph 196 above) that, for purposes of
establishing genocide, the targeted group must be defined positively, and
not as a “non-Serb” group.

  369. The Applicant has not in its arguments dealt separately with the
question of the nature of the specific intent (dolus specialis) alleged to
accompany the acts in the FRY complained of. It does not appear to be

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194         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

contending that actions attributable to the Respondent, and committed
on the territory of the FRY, were accompanied by a specific intent (dolus
specialis), peculiar to or limited to that territory, in the sense that the
objective was to eliminate the presence of non-Serbs in the FRY itself.
The Court finds in any event that the evidence offered does not in any
way support such a contention. What the Applicant has sought to do is
to convince the Court of a pattern of acts said to evidence specific intent
(dolus specialis) inspiring the actions of Serb forces in Bosnia and Herze-
govina, involving the destruction of the Bosnian Muslims in that terri-
tory ; and that same pattern lay, it is contended, behind the treatment of
Bosnian Muslims in the camps established in the FRY, so that that treat-
ment supports the pattern thesis. The Applicant has emphasized that the
same treatment was meted out to those Bosnian Muslims as was inflicted
on their compatriots in Bosnia and Herzegovina. The Court will thus
now turn to the question whether the specific intent (dolus specialis) can
be deduced, as contended by the Applicant, from the pattern of actions
against the Bosnian Muslims taken as a whole.

                                    *   *
  (11) The Question of Pattern of Acts Said to Evidence an Intent to
                         Commit Genocide
   370. In the light of its review of the factual evidence before it of the
atrocities committed in Bosnia and Herzegovina in 1991-1995, the Court
has concluded that, save for the events of July 1995 at Srebrenica, the
necessary intent required to constitute genocide has not been conclusively
shown in relation to each specific incident. The Applicant however relies
on the alleged existence of an overall plan to commit genocide, indicated
by the pattern of genocidal or potentially acts of genocide committed
throughout the territory, against persons identified everywhere and in
each case on the basis of their belonging to a specified group. In the case,
for example, of the conduct of Serbs in the various camps (described in
paragraphs 252-256, 262-273, 307-310 and 312-318 above), it suggests
that “[t]he genocidal intent of the Serbs becomes particularly clear in the
description of camp practices, due to their striking similarity all over the
territory of Bosnia and Herzegovina”. Drawing attention to the similari-
ties between actions attributed to the Serbs in Croatia, and the later
events at, for example, Kosovo, the Applicant observed that

      “it is not surprising that the picture of the takeovers and the follow-
      ing human and cultural destruction looks indeed similar from 1991

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195         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      through 1999. These acts were perpetrated as the expression of one
      single project, which basically and effectively included the destruc-
      tion in whole or in part of the non-Serb group, wherever this ethni-
      cally and religiously defined group could be conceived as obstructing
      the all-Serbs-in-one-State group concept.”

   371. The Court notes that this argument of the Applicant moves from
the intent of the individual perpetrators of the alleged acts of genocide
complained of to the intent of higher authority, whether within the
VRS or the Republika Srpska, or at the level of the Government of the
Respondent itself. In the absence of an official statement of aims reflect-
ing such an intent, the Applicant contends that the specific intent (dolus
specialis) of those directing the course of events is clear from the consist-
ency of practices, particularly in the camps, showing that the pattern was
of acts committed “within an organized institutional framework”. How-
ever, something approaching an official statement of an overall plan is,
the Applicant contends, to be found in the Decision on Strategic Goals
issued on 12 May 1992 by Momčilo Krajišnik as the President of the
National Assembly of Republika Srpska, published in the Official Gazette
of the Republika Srpska, and the Court will first consider what signifi-
cance that Decision may have in this context. The English translation of
the Strategic Goals presented by the Parties during the hearings, taken
from the Report of Expert Witness Donia in the Milošević case before
the ICTY, Exhibit No. 537, reads as follows :

       “DECISION ON THE STRATEGIC GOALS OF THE SERBIAN PEOPLE
                      IN BOSNIA AND HERZEGOVINA

        The Strategic Goals, i.e., the priorities, of the Serbian people in
      Bosnia and Herzegovina are :
      1. Separation as a state from the other two ethnic communities.

      2. A corridor between Semberija and Krajina.
      3. The establishment of a corridor in the Drina River valley, i.e., the
         elimination of the border between Serbian states.

      4. The establishment of a border on the Una and Neretva rivers.
      5. The division of the city of Sarajevo into a Serbian part and a
         Muslim part, and the establishment of effective state authorities
         within each part.
      6. An outlet to the sea for the Republika Srpska.”
While the Court notes that this document did not emanate from the
Government of the Respondent, evidence before the Court of intercepted
exchanges between President Milošević of Serbia and President Karadžić
of the Republika Srpska is sufficient to show that the objectives defined
represented their joint view.

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196         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

   372. The Parties have drawn the Court’s attention to statements in the
Assembly by President Karadžić which appear to give conflicting inter-
pretations of the first and major goal of these objectives, the first on the
day they were adopted, the second two years later. On that first occasion,
the Applicant contended, he said : “It would be much better to solve this
situation by political means. It would be best if a truce could be estab-
lished right away and the borders set up, even if we lose something.” Two
years later he said (according to the translation of his speech supplied by
the Applicant) :

        “We certainly know that we must give up something — that is
      beyond doubt in so far as we want to achieve our first strategic goal :
      to drive our enemies by the force of war from their homes, that is the
      Croats and Muslims, so that we will no longer be together [with
      them] in a State.”
The Respondent disputes the accuracy of the translation, claiming that
the stated goal was not “to drive our enemies by the force of war from
their homes” but “to free the homes from the enemy”. The 1992 objec-
tives do not include the elimination of the Bosnian Muslim population.
The 1994 statement even on the basis of the Applicant’s translation, how-
ever shocking a statement, does not necessarily involve the intent to
destroy in whole or in part the Muslim population in the enclaves. The
Applicant’s argument does not come to terms with the fact that an essen-
tial motive of much of the Bosnian Serb leadership — to create a larger
Serb State, by a war of conquest if necessary — did not necessarily
require the destruction of the Bosnian Muslims and other communities,
but their expulsion. The 1992 objectives, particularly the first one, were
capable of being achieved by the displacement of the population and by
territory being acquired, actions which the Respondent accepted (in the
latter case at least) as being unlawful since they would be at variance with
the inviolability of borders and the territorial integrity of a State which
had just been recognized internationally. It is significant that in cases in
which the Prosecutor has put the Strategic Goals in issue, the ICTY has
not characterized them as genocidal (see Brdanin, IT-99-36-T, Trial
Chamber Judgment, 1 September 2004, para. 303, and Stakić, IT-97-24-T,
Trial Chamber Judgment, 31 July 2003, paras. 546-561 (in particu-
lar para. 548)). The Court does not see the 1992 Strategic Goals as
establishing the specific intent.

   373. Turning now to the Applicant’s contention that the very pattern
of the atrocities committed over many communities, over a lengthy
period, focused on Bosnian Muslims and also Croats, demonstrates the
necessary intent, the Court cannot agree with such a broad proposition.
The dolus specialis, the specific intent to destroy the group in whole or in
part, has to be convincingly shown by reference to particular circum-
stances, unless a general plan to that end can be convincingly demon-

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197        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

strated to exist ; and for a pattern of conduct to be accepted as evidence
of its existence, it would have to be such that it could only point to the
existence of such intent.

   374. Furthermore, and again significantly, the proposition is not con-
sistent with the findings of the ICTY relating to genocide or with the
actions of the Prosecutor, including decisions not to charge genocide
offences in possibly relevant indictments, and to enter into plea agree-
ments, as in the Plavšić and Sikirica et al. cases (IT-00-40 and IT-95-8),
by which the genocide-related charges were withdrawn. Those actions of
the Prosecution and the Tribunal can be conveniently enumerated here.
Prosecutions for genocide and related crimes before the ICTY can be
grouped in the following way :

(a) convictions in respect of charges involving genocide relating to
    Srebrenica in July 1995 : Krstić (IT-98-33) (conviction of genocide
    at trial was reduced to aiding and abetting genocide on appeal)
    and Blagojević (IT-02-60) (conviction of complicity in genocide
    “through aiding and abetting” at trial is currently on appeal) ;

(b) plea agreements in which such charges were withdrawn, with the
    accused pleading guilty to crimes against humanity : Obrenović (IT-
    02-60/2) and Momir Nikolić (IT-02-60/1) ;

(c) acquittals on genocide-related charges in respect of events occurring
    elsewhere : Krajišnik (paragraph 219 above) (on appeal), Jelisić (IT-
    95-10) (completed), Stakić (IT-97-24) (completed), Brdanin (IT-99-
    36) (on appeal) and Sikirica (IT-95-8) (completed) ;

(d) cases in which genocide-related charges in respect of events occur-
    ring elsewhere were withdrawn : Plavšić (IT-00-39 and 40/1) (plea
    agreement), Župljanin (IT-99-36) (genocide-related charges with-
    drawn) and Mejakić (IT-95-4) (genocide-related charges withdrawn) ;

(e) case in which the indictment charged genocide and related crimes in
    Srebrenica and elsewhere in which the accused died during the pro-
    ceedings : Milošević (IT-02-54) ;
(f) cases in which indictments charge genocide or related crimes in
    respect of events occurring elsewhere, in which accused have died
    before or during proceedings : Kovačević and Drljača (IT-97-24) and
    Talić (IT-99-36/1) ;
(g) pending cases in which the indictments charge genocide and related
    crimes in Srebrenica and elsewhere : Karadžić and Mladić (IT-95-5/
    18) ; and

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198         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

(h) pending cases in which the indictments charge genocide and related
    crimes in Srebrenica : Popović, Beara, Drago Nikolić, Borovčanin,
    Pandurević and Trbić (IT-05-88/1) and Tolimir (IT-05-88/2).

   375. In the cases of a number of accused, relating to events in July
1995 in Srebrenica, charges of genocide or its related acts have not been
brought : Erdemović (IT-96-22) (completed), Jokić (IT-02-60) (on appeal),
Miletić and Gvero (IT-05-88, part of the Popović et al. proceeding
referred to in paragraph 374 (h) above), Perišić (IT-04-81) (pending) and
Stanišić and Simatović (IT-03-69) (pending).

  376. The Court has already concluded above that — save in the case
of Srebrenica — the Applicant has not established that any of the wide-
spread and serious atrocities, complained of as constituting violations of
Article II, paragraphs (a) to (e), of the Genocide Convention, were
accompanied by the necessary specific intent (dolus specialis) on the part
of the perpetrators. It also finds that the Applicant has not established
the existence of that intent on the part of the Respondent, either on the
basis of a concerted plan, or on the basis that the events reviewed above
reveal a consistent pattern of conduct which could only point to the exist-
ence of such intent. Having however concluded (paragraph 297 above), in
the specific case of the massacres at Srebrenica in July 1995, that acts of
genocide were committed in operations led by members of the VRS, the
Court now turns to the question whether those acts are attributable to
the Respondent.

                                  * * *

   VII. THE QUESTION OF RESPONSIBILITY FOR EVENTS AT SREBRENICA
  UNDER ARTICLE III, PARAGRAPH (a), OF THE GENOCIDE CONVENTION

                       (1) The Alleged Admission
   377. The Court first notes that the Applicant contends that the
Respondent has in fact recognized that genocide was committed at Sre-
brenica, and has accepted legal responsibility for it. The Applicant called
attention to the following official declaration made by the Council of
Ministers of the Respondent on 15 June 2005, following the showing on
a Belgrade television channel on 2 June 2005 of a video-recording of the
murder by a paramilitary unit of six Bosnian Muslim prisoners near
Srebrenica (paragraph 289 above). The statement reads as follows :

        “Those who committed the killings in Srebrenica, as well as those
      who ordered and organized that massacre represented neither Serbia

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199         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      nor Montenegro, but an undemocratic regime of terror and death,
      against whom the majority of citizens of Serbia and Montenegro put
      up the strongest resistance.
        Our condemnation of crimes in Srebrenica does not end with the
      direct perpetrators. We demand the criminal responsibility of all
      who committed war crimes, organized them or ordered them, and
      not only in Srebrenica.
        Criminals must not be heroes. Any protection of the war crimi-
      nals, for whatever reason, is also a crime.”
The Applicant requests the Court to declare that this declaration “be
regarded as a form of admission and as having decisive probative force
regarding the attributability to the Yugoslav State of the Srebrenica
massacre”.
  378. It is for the Court to determine whether the Respondent is
responsible for any acts of genocide which may be established. For pur-
poses of a finding of this kind the Court may take into account any state-
ments made by either party that appear to bear upon the matters in issue,
and have been brought to its attention (cf. Nuclear Tests (Australia v.
France), Judgment, I.C.J. Reports 1974, pp. 263 ff., paras. 32 ff., and
Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974,
pp. 465 ff., paras. 27 ff. ; Frontier Dispute (Burkina Faso/Republic of
Mali), Judgment, I.C.J. Reports 1986, pp. 573-574, paras. 38-39), and
may accord to them such legal effect as may be appropriate. However, in
the present case, it appears to the Court that the declaration of
15 June 2005 was of a political nature ; it was clearly not intended as an
admission, which would have had a legal effect in complete contradiction
to the submissions made by the Respondent before this Court, both at
the time of the declaration and subsequently. The Court therefore does
not find the statement of 15 June 2005 of assistance to it in determining
the issues before it in the case.

                                   *   *
                     (2) The Test of Responsibility
   379. In view of the foregoing conclusions, the Court now must ascer-
tain whether the international responsibility of the Respondent can have
been incurred, on whatever basis, in connection with the massacres com-
mitted in the Srebrenica area during the period in question. For the
reasons set out above, those massacres constituted the crime of genocide
within the meaning of the Convention. For this purpose, the Court may
be required to consider the following three issues in turn. First, it needs
to be determined whether the acts of genocide could be attributed to the
Respondent under the rules of customary international law of State
responsibility ; this means ascertaining whether the acts were committed
by persons or organs whose conduct is attributable, specifically in the
case of the events at Srebrenica, to the Respondent. Second, the Court

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200         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

will need to ascertain whether acts of the kind referred to in Article III of
the Convention, other than genocide itself, were committed by persons or
organs whose conduct is attributable to the Respondent under those
same rules of State responsibility : that is to say, the acts referred to in
Article III, paragraphs (b) to (e), one of these being complicity in geno-
cide. Finally, it will be for the Court to rule on the issue as to whether the
Respondent complied with its twofold obligation deriving from Article I
of the Convention to prevent and punish genocide.

    380. These three issues must be addressed in the order set out above,
because they are so interrelated that the answer on one point may affect
the relevance or significance of the others. Thus, if and to the extent that
consideration of the first issue were to lead to the conclusion that some
acts of genocide are attributable to the Respondent, it would be un-
necessary to determine whether it may also have incurred responsibility
under Article III, paragraphs (b) to (e), of the Convention for the same
acts. Even though it is theoretically possible for the same acts to result in
the attribution to a State of acts of genocide (contemplated by Art. III,
para. (a)), conspiracy to commit genocide (Art. III, para. (b)), and
direct and public incitement to commit genocide (Art. III, para. (c)),
there would be little point, where the requirements for attribution are ful-
filled under (a), in making a judicial finding that they are also satisfied
under (b) and (c), since responsibility under (a) absorbs that under the
other two. The idea of holding the same State responsible by attributing
to it acts of “genocide” (Art. III, para. (a)), “attempt to commit geno-
cide” (Art. III, para. (d)), and “complicity in genocide” (Art. III,
para. (e)), in relation to the same actions, must be rejected as untenable
both logically and legally.

   381. On the other hand, there is no doubt that a finding by the Court
that no acts that constitute genocide, within the meaning of Article II and
Article III, paragraph (a), of the Convention, can be attributed to the
Respondent will not free the Court from the obligation to determine
whether the Respondent’s responsibility may nevertheless have been
incurred through the attribution to it of the acts, or some of the acts,
referred to in Article III, paragraphs (b) to (e). In particular, it is clear
that acts of complicity in genocide can be attributed to a State to which
no act of genocide could be attributed under the rules of State responsi-
bility, the content of which will be considered below.

   382. Furthermore, the question whether the Respondent has complied
with its obligations to prevent and punish genocide arises in different
terms, depending on the replies to the two preceding questions. It is only
if the Court answers the first two questions in the negative that it will
have to consider whether the Respondent fulfilled its obligation of pre-

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201         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

vention, in relation to the whole accumulation of facts constituting geno-
cide. If a State is held responsible for an act of genocide (because it was
committed by a person or organ whose conduct is attributable to the
State), or for one of the other acts referred to in Article III of the Con-
vention (for the same reason), then there is no point in asking whether it
complied with its obligation of prevention in respect of the same acts,
because logic dictates that a State cannot have satisfied an obligation to
prevent genocide in which it actively participated. On the other hand, it is
self-evident, as the Parties recognize, that if a State is not responsible for
any of the acts referred to in Article III, paragraphs (a) to (e), of the
Convention, this does not mean that its responsibility cannot be sought
for a violation of the obligation to prevent genocide and the other acts
referred to in Article III.

   383. Finally, it should be made clear that, while, as noted above, a
State’s responsibility deriving from any of those acts renders moot the
question whether it satisfied its obligation of prevention in respect of the
same conduct, it does not necessarily render superfluous the question
whether the State complied with its obligation to punish the perpetrators
of the acts in question. It is perfectly possible for a State to incur respon-
sibility at once for an act of genocide (or complicity in genocide, incite-
ment to commit genocide, or any of the other acts enumerated in
Article III) committed by a person or organ whose conduct is attribu-
table to it, and for the breach by the State of its obligation to punish the
perpetrator of the act : these are two distinct internationally wrong-
ful acts attributable to the State, and both can be asserted against it as
bases for its international responsibility.

   384. Having thus explained the interrelationship among the three issues
set out above (paragraph 379), the Court will now proceed to consider
the first of them. This is the question whether the massacres committed at
Srebrenica during the period in question, which constitute the crime of
genocide within the meaning of Articles II and III, paragraph (a), of the
Convention, are attributable, in whole or in part, to the Respondent.
This question has in fact two aspects, which the Court must consider
separately. First, it should be ascertained whether the acts committed at
Srebrenica were perpetrated by organs of the Respondent, i.e., by per-
sons or entities whose conduct is necessarily attributable to it, because
they are in fact the instruments of its action. Next, if the preceding ques-
tion is answered in the negative, it should be ascertained whether the acts
in question were committed by persons who, while not organs of the
Respondent, did nevertheless act on the instructions of, or under the
direction or control of, the Respondent.

                                    *   *
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202         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      (3) The Question of Attribution of the Srebrenica Genocide to
        the Respondent on the Basis of the Conduct of Its Organs
   385. The first of these two questions relates to the well-established
rule, one of the cornerstones of the law of State responsibility, that the
conduct of any State organ is to be considered an act of the State under
international law, and therefore gives rise to the responsibility of the
State if it constitutes a breach of an international obligation of the State.
This rule, which is one of customary international law, is reflected in
Article 4 of the ILC Articles on State Responsibility as follows :

                                    “Article 4
                          Conduct of organs of a State
         1. The conduct of any State organ shall be considered an act of
      that State under international law, whether the organ exercises
      legislative, executive, judicial or any other functions, whatever
      position it holds in the organization of the State, and whatever its
      character as an organ of the central Government or of a territorial
      unit of the State.
         2. An organ includes any person or entity which has that status in
      accordance with the internal law of the State.”
   386. When applied to the present case, this rule first calls for a deter-
mination whether the acts of genocide committed in Srebrenica were per-
petrated by “persons or entities” having the status of organs of the Fed-
eral Republic of Yugoslavia (as the Respondent was known at the time)
under its internal law, as then in force. It must be said that there is noth-
ing which could justify an affirmative response to this question. It has not
been shown that the FRY army took part in the massacres, nor that the
political leaders of the FRY had a hand in preparing, planning or in any
way carrying out the massacres. It is true that there is much evidence of
direct or indirect participation by the official army of the FRY, along
with the Bosnian Serb armed forces, in military operations in Bosnia and
Herzegovina in the years prior to the events at Srebrenica. That partici-
pation was repeatedly condemned by the political organs of the United
Nations, which demanded that the FRY put an end to it (see, for
example, Security Council resolutions 752 (1992), 757 (1992), 762
(1992), 819 (1993), 838 (1993)). It has however not been shown that
there was any such participation in relation to the massacres com-
mitted at Srebrenica (see also paragraphs 278 to 297 above). Further,
neither the Republika Srpska, nor the VRS were de jure organs of the
FRY, since none of them had the status of organ of that State under its
internal law.

  387. The Applicant has however claimed that all officers in the VRS,
including General Mladić, remained under FRY military administration,
and that their salaries were paid from Belgrade right up to 2002, and

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203        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

accordingly contends that these officers “were de jure organs of [the
FRY], intended by their superiors to serve in Bosnia and Herzegovina
with the VRS”. On this basis it has been alleged by the Applicant that
those officers, in addition to being officers of the VRS, remained officers
of the VJ, and were thus de jure organs of the Respondent (para-
graph 238 above). The Respondent however asserts that only some of the
VRS officers were being “administered” by the 30th Personnel Centre in
Belgrade, so that matters like their payment, promotion, pension, etc.,
were being handled from the FRY (paragraph 238 above) ; and that it has
not been clearly established whether General Mladić was one of them.
The Applicant has shown that the promotion of Mladić to the rank of
Colonel General on 24 June 1994 was handled in Belgrade, but the
Respondent emphasizes that this was merely a verification for adminis-
trative purposes of a promotion decided by the authorities of the Repub-
lika Srpska.

   388. The Court notes first that no evidence has been presented that
either General Mladić or any of the other officers whose affairs were
handled by the 30th Personnel Centre were, according to the internal law
of the Respondent, officers of the army of the Respondent — a de jure
organ of the Respondent. Nor has it been conclusively established that
General Mladić was one of those officers ; and even on the basis that he
might have been, the Court does not consider that he would, for that rea-
son alone, have to be treated as an organ of the FRY for the purposes of
the application of the rules of State responsibility. There is no doubt that
the FRY was providing substantial support, inter alia, financial support,
to the Republika Srpska (cf. paragraph 241 above), and that one of the
forms that support took was payment of salaries and other benefits to
some officers of the VRS, but this did not automatically make them
organs of the FRY. Those officers were appointed to their commands by
the President of the Republika Srpska, and were subordinated to the
political leadership of the Republika Srpska. In the absence of evidence
to the contrary, those officers must be taken to have received their orders
from the Republika Srpska or the VRS, not from the FRY. The expres-
sion “State organ”, as used in customary international law and in
Article 4 of the ILC Articles, applies to one or other of the individual or
collective entities which make up the organization of the State and act on
its behalf (cf. ILC Commentary to Art. 4, para. (1)). The functions of the
VRS officers, including General Mladić, were however to act on behalf of
the Bosnian Serb authorities, in particular the Republika Srpska, not on
behalf of the FRY ; they exercised elements of the public authority of
the Republika Srpska. The particular situation of General Mladić, or
of any other VRS officer present at Srebrenica who may have been being
“administered” from Belgrade, is not therefore such as to lead the
Court to modify the conclusion reached in the previous paragraph.

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204        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

   389. The issue also arises as to whether the Respondent might bear
responsibility for the acts of the “Scorpions” in the Srebrenica area. In
this connection, the Court will consider whether it has been proved that
the Scorpions were a de jure organ of the Respondent. It is in dispute
between the Parties as to when the “Scorpions” became incorporated into
the forces of the Respondent. The Applicant has claimed that incorpora-
tion occurred by a decree of 1991 (which has not been produced as an
Annex). The Respondent states that “these regulations [were] relevant
exclusively for the war in Croatia in 1991” and that there is no evidence
that they remained in force in 1992 in Bosnia and Herzegovina. The
Court observes that, while the single State of Yugoslavia was disinte-
grating at that time, it is the status of the “Scorpions” in mid-1995 that
is of relevance to the present case. In two of the intercepted documents
presented by the Applicant (the authenticity of which was queried — see
paragraph 289 above), there is reference to the “Scorpions” as “MUP of
Serbia” and “a unit of Ministry of Interiors of Serbia”. The Respondent
identified the senders of these communications, Ljubiša Borovčanin and
Savo Cvjetinović, as being “officials of the police forces of Republika
Srpska”. The Court observes that neither of these communications was
addressed to Belgrade. Judging on the basis of these materials, the Court
is unable to find that the “Scorpions” were, in mid-1995, de jure organs
of the Respondent. Furthermore, the Court notes that in any event the
act of an organ placed by a State at the disposal of another public
authority shall not be considered an act of that State if the organ was
acting on behalf of the public authority at whose disposal it had been
placed.

  390. The argument of the Applicant however goes beyond mere
contemplation of the status, under the Respondent’s internal law, of the
persons who committed the acts of genocide ; it argues that Republika
Srpska and the VRS, as well as the paramilitary militias known as
the “Scorpions”, the “Red Berets”, the “Tigers” and the “White Eagles”
must be deemed, notwithstanding their apparent status, to have been
“de facto organs” of the FRY, in particular at the time in question, so
that all of their acts, and specifically the massacres at Srebrenica, must be
considered attributable to the FRY, just as if they had been organs of
that State under its internal law ; reality must prevail over appearances.
The Respondent rejects this contention, and maintains that these were
not de facto organs of the FRY.

   391. The first issue raised by this argument is whether it is possible in
principle to attribute to a State conduct of persons — or groups of per-
sons — who, while they do not have the legal status of State organs, in
fact act under such strict control by the State that they must be treated as
its organs for purposes of the necessary attribution leading to the State’s
responsibility for an internationally wrongful act. The Court has in fact
already addressed this question, and given an answer to it in principle, in

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205         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

its Judgment of 27 June 1986 in the case concerning Military and Para-
military Activities in and against Nicaragua (Nicaragua v. United States
of America) (Merits, Judgment, I.C.J. Reports 1986, pp. 62-64). In para-
graph 109 of that Judgment the Court stated that it had to

      “determine . . . whether or not the relationship of the contras to the
      United States Government was so much one of dependence on the
      one side and control on the other that it would be right to equate
      the contras, for legal purposes, with an organ of the United States
      Government, or as acting on behalf of that Government” (p. 62).
Then, examining the facts in the light of the information in its possession,
the Court observed that “there is no clear evidence of the United States
having actually exercised such a degree of control in all fields as to justify
treating the contras as acting on its behalf” (para. 109), and went on to
conclude that “the evidence available to the Court . . . is insufficient to
demonstrate [the contras’] complete dependence on United States aid”, so
that the Court was “unable to determine that the contra force may be
equated for legal purposes with the forces of the United States” (pp. 62-
63, para. 110).
   392. The passages quoted show that, according to the Court’s juris-
prudence, persons, groups of persons or entities may, for purposes of
international responsibility, be equated with State organs even if that
status does not follow from internal law, provided that in fact the per-
sons, groups or entities act in “complete dependence” on the State, of
which they are ultimately merely the instrument. In such a case, it is
appropriate to look beyond legal status alone, in order to grasp the
reality of the relationship between the person taking action, and the
State to which he is so closely attached as to appear to be nothing more
than its agent : any other solution would allow States to escape their inter-
national responsibility by choosing to act through persons or entities
whose supposed independence would be purely fictitious.

   393. However, so to equate persons or entities with State organs when
they do not have that status under internal law must be exceptional, for
it requires proof of a particularly great degree of State control over them,
a relationship which the Court’s Judgment quoted above expressly
described as “complete dependence”. It remains to be determined in the
present case whether, at the time in question, the persons or entities that
committed the acts of genocide at Srebrenica had such ties with the FRY
that they can be deemed to have been completely dependent on it ; it is
only if this condition is met that they can be equated with organs of the
Respondent for the purposes of its international responsibility.

   394. The Court can only answer this question in the negative. At the
relevant time, July 1995, neither the Republika Srpska nor the VRS could

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206         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

be regarded as mere instruments through which the FRY was acting, and
as lacking any real autonomy. While the political, military and logistical
relations between the federal authorities in Belgrade and the authorities
in Pale, between the Yugoslav army and the VRS, had been strong and
close in previous years (see paragraph 238 above), and these ties un-
doubtedly remained powerful, they were, at least at the relevant time, not
such that the Bosnian Serbs’ political and military organizations should
be equated with organs of the FRY. It is even true that differences over
strategic options emerged at the time between Yugoslav authorities and
Bosnian Serb leaders ; at the very least, these are evidence that the latter
had some qualified, but real, margin of independence. Nor, notwith-
standing the very important support given by the Respondent to the
Republika Srpska, without which it could not have “conduct[ed] its
crucial or most significant military and paramilitary activities” (I.C.J.
Reports 1986, p. 63, para. 111), did this signify a total dependence of the
Republika Srpska upon the Respondent.

   395. The Court now turns to the question whether the “Scorpions”
were in fact acting in complete dependence on the Respondent. The
Court has not been presented with materials to indicate this. The Court
also notes that, in giving his evidence, General Dannatt, when asked
under whose control or whose authority the paramilitary groups coming
from Serbia were operating, replied, “they would have been under the
command of Mladić and part of the chain of the command of the VRS”.
The Parties referred the Court to the Stanišić and Simatović case (IT-03-
69, pending) ; notwithstanding that the defendants are not charged with
genocide in that case, it could have its relevance for illuminating the
status of the “Scorpions” as Serbian MUP or otherwise. However, the
Court cannot draw further conclusions as this case remains at the indict-
ment stage. In this respect, the Court recalls that it can only form its
opinion on the basis of the information which has been brought to its
notice at the time when it gives its decision, and which emerges from the
pleadings and documents in the case file, and the arguments of the Parties
made during the oral exchanges.
   The Court therefore finds that the acts of genocide at Srebrenica can-
not be attributed to the Respondent as having been committed by its
organs or by persons or entities wholly dependent upon it, and thus do
not on this basis entail the Respondent’s international responsibility.

                                   *   *
      (4) The Question of Attribution of the Srebrenica Genocide to
          the Respondent on the Basis of Direction or Control
  396. As noted above (paragraph 384), the Court must now determine
whether the massacres at Srebrenica were committed by persons who,

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207         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

though not having the status of organs of the Respondent, nevertheless
acted on its instructions or under its direction or control, as the Appli-
cant argues in the alternative ; the Respondent denies that such was the
case.
   397. The Court must emphasize, at this stage in its reasoning, that the
question just stated is not the same as those dealt with thus far. It is obvi-
ous that it is different from the question whether the persons who com-
mitted the acts of genocide had the status of organs of the Respondent
under its internal law ; nor however, and despite some appearance to the
contrary, is it the same as the question whether those persons should be
equated with State organs de facto, even though not enjoying that status
under internal law. The answer to the latter question depends, as pre-
viously explained, on whether those persons were in a relationship of such
complete dependence on the State that they cannot be considered other-
wise than as organs of the State, so that all their actions performed in
such capacity would be attributable to the State for purposes of interna-
tional responsibility. Having answered that question in the negative, the
Court now addresses a completely separate issue : whether, in the specific
circumstances surrounding the events at Srebrenica the perpetrators of
genocide were acting on the Respondent’s instructions, or under its direc-
tion or control. An affirmative answer to this question would in no way
imply that the perpetrators should be characterized as organs of the
FRY, or equated with such organs. It would merely mean that the FRY’s
international responsibility would be incurred owing to the conduct of
those of its own organs which gave the instructions or exercised the con-
trol resulting in the commission of acts in breach of its international obli-
gations. In other words, it is no longer a question of ascertaining whether
the persons who directly committed the genocide were acting as organs of
the FRY, or could be equated with those organs — this question having
already been answered in the negative. What must be determined is
whether FRY organs — incontestably having that status under the
FRY’s internal law — originated the genocide by issuing instructions to
the perpetrators or exercising direction or control, and whether, as a
result, the conduct of organs of the Respondent, having been the cause of
the commission of acts in breach of its international obligations, consti-
tuted a violation of those obligations.

  398. On this subject the applicable rule, which is one of customary
law of international responsibility, is laid down in Article 8 of the ILC
Articles on State Responsibility as follows :
                                   “Article 8
                   Conduct directed or controlled by a State
        The conduct of a person or group of persons shall be considered
      an act of a State under international law if the person or group of

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208         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      persons is in fact acting on the instructions of, or under the direction
      or control of, that State in carrying out the conduct.”

   399. This provision must be understood in the light of the Court’s
jurisprudence on the subject, particularly that of the 1986 Judgment in
the case concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America) referred to above
(paragraph 391). In that Judgment the Court, as noted above, after
having rejected the argument that the contras were to be equated with
organs of the United States because they were “completely dependent”
on it, added that the responsibility of the Respondent could still arise if
it were proved that it had itself “directed or enforced the perpetration of
the acts contrary to human rights and humanitarian law alleged by the
applicant State” (I.C.J. Reports 1986, p. 64, para. 115) ; this led to the
following significant conclusion :
         “For this conduct to give rise to legal responsibility of the United
      States, it would in principle have to be proved that that State had
      effective control of the military or paramilitary operations in the
      course of which the alleged violations were committed.” (Ibid., p. 65.)

   400. The test thus formulated differs in two respects from the test —
described above — to determine whether a person or entity may be
equated with a State organ even if not having that status under internal
law. First, in this context it is not necessary to show that the persons who
performed the acts alleged to have violated international law were in gen-
eral in a relationship of “complete dependence” on the respondent State ;
it has to be proved that they acted in accordance with that State’s instruc-
tions or under its “effective control”. It must however be shown that this
“effective control” was exercised, or that the State’s instructions were
given, in respect of each operation in which the alleged violations
occurred, not generally in respect of the overall actions taken by the per-
sons or groups of persons having committed the violations.

   401. The Applicant has, it is true, contended that the crime of geno-
cide has a particular nature, in that it may be composed of a considerable
number of specific acts separate, to a greater or lesser extent, in time and
space. According to the Applicant, this particular nature would justify,
among other consequences, assessing the “effective control” of the State
allegedly responsible, not in relation to each of these specific acts, but in
relation to the whole body of operations carried out by the direct perpe-
trators of the genocide. The Court is however of the view that the par-
ticular characteristics of genocide do not justify the Court in departing
from the criterion elaborated in the Judgment in the case concerning
Military and Paramilitary Activities in and against Nicaragua (Nicara-
gua v. United States of America) (see paragraph 399 above). The rules

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for attributing alleged internationally wrongful conduct to a State do not
vary with the nature of the wrongful act in question in the absence of a
clearly expressed lex specialis. Genocide will be considered as attribut-
able to a State if and to the extent that the physical acts constitutive of
genocide that have been committed by organs or persons other than the
State’s own agents were carried out, wholly or in part, on the instructions
or directions of the State, or under its effective control. This is the state
of customary international law, as reflected in the ILC Articles on State
Responsibility.
   402. The Court notes however that the Applicant has further ques-
tioned the validity of applying, in the present case, the criterion adopted
in the Military and Paramilitary Activities Judgment. It has drawn atten-
tion to the Judgment of the ICTY Appeals Chamber in the Tadić case
(IT-94-1-A, Judgment, 15 July 1999). In that case the Chamber did not
follow the jurisprudence of the Court in the Military and Paramilitary
Activities case : it held that the appropriate criterion, applicable in its
view both to the characterization of the armed conflict in Bosnia and
Herzegovina as international, and to imputing the acts committed by
Bosnian Serbs to the FRY under the law of State responsibility, was that
of the “overall control” exercised over the Bosnian Serbs by the FRY ;
and further that that criterion was satisfied in the case (on this point,
ibid., para. 145). In other words, the Appeals Chamber took the view that
acts committed by Bosnian Serbs could give rise to international respon-
sibility of the FRY on the basis of the overall control exercised by the
FRY over the Republika Srpska and the VRS, without there being any
need to prove that each operation during which acts were committed in
breach of international law was carried out on the FRY’s instructions, or
under its effective control.
   403. The Court has given careful consideration to the Appeals Cham-
ber’s reasoning in support of the foregoing conclusion, but finds itself
unable to subscribe to the Chamber’s view. First, the Court observes that
the ICTY was not called upon in the Tadić case, nor is it in general called
upon, to rule on questions of State responsibility, since its jurisdiction is
criminal and extends over persons only. Thus, in that Judgment the Tri-
bunal addressed an issue which was not indispensable for the exercise of
its jurisdiction. As stated above, the Court attaches the utmost impor-
tance to the factual and legal findings made by the ICTY in ruling on the
criminal liability of the accused before it and, in the present case, the
Court takes fullest account of the ICTY’s trial and appellate judgments
dealing with the events underlying the dispute. The situation is not the
same for positions adopted by the ICTY on issues of general inter-
national law which do not lie within the specific purview of its jurisdic-
tion and, moreover, the resolution of which is not always necessary for
deciding the criminal cases before it.

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   404. This is the case of the doctrine laid down in the Tadić Judgment.
Insofar as the “overall control” test is employed to determine whether or
not an armed conflict is international, which was the sole question which
the Appeals Chamber was called upon to decide, it may well be that the
test is applicable and suitable ; the Court does not however think it
appropriate to take a position on the point in the present case, as there is
no need to resolve it for purposes of the present Judgment. On the other
hand, the ICTY presented the “overall control” test as equally applicable
under the law of State responsibility for the purpose of determining — as
the Court is required to do in the present case — when a State is respon-
sible for acts committed by paramilitary units, armed forces which are
not among its official organs. In this context, the argument in favour of
that test is unpersuasive.

   405. It should first be observed that logic does not require the same
test to be adopted in resolving the two issues, which are very different in
nature : the degree and nature of a State’s involvement in an armed con-
flict on another State’s territory which is required for the conflict to be
characterized as international, can very well, and without logical incon-
sistency, differ from the degree and nature of involvement required to
give rise to that State’s responsibility for a specific act committed in the
course of the conflict.

   406. It must next be noted that the “overall control” test has the major
drawback of broadening the scope of State responsibility well beyond the
fundamental principle governing the law of international responsibility : a
State is responsible only for its own conduct, that is to say the conduct of
persons acting, on whatever basis, on its behalf. That is true of acts car-
ried out by its official organs, and also by persons or entities which are
not formally recognized as official organs under internal law but which
must nevertheless be equated with State organs because they are in a rela-
tionship of complete dependence on the State. Apart from these cases, a
State’s responsibility can be incurred for acts committed by persons or
groups of persons — neither State organs nor to be equated with such
organs — only if, assuming those acts to be internationally wrongful,
they are attributable to it under the rule of customary international law
reflected in Article 8 cited above (paragraph 398). This is so where an
organ of the State gave the instructions or provided the direction pur-
suant to which the perpetrators of the wrongful act acted or where it
exercised effective control over the action during which the wrong was
committed. In this regard the “overall control” test is unsuitable, for it
stretches too far, almost to breaking point, the connection which must
exist between the conduct of a State’s organs and its international
responsibility.

  407. Thus it is on the basis of its settled jurisprudence that the Court
will determine whether the Respondent has incurred responsibility under

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the rule of customary international law set out in Article 8 of the ILC
Articles on State Responsibility.

                                      *
   408. The Respondent has emphasized that in the final judgments of
the Chambers of the ICTY relating to genocide in Srebrenica, none of its
leaders have been found to have been implicated. The Applicant does not
challenge that reading, but makes the point that that issue has not been
before the ICTY for decision. The Court observes that the ICTY has
indeed not up to the present been directly concerned in final judgments
with the question whether those leaders might bear responsibility in that
respect. The Court notes the fact that the report of the United Nations
Secretary-General does not establish any direct involvement by Presi-
dent Milošević with the massacre. The Court has already recorded the
contacts between Milošević and the United Nations on 10 and 11 July
(paragraph 285). On 14 July, as recorded in the Secretary-General’s
Report,
      “the European Union negotiator, Mr. Bildt, travelled to Belgrade to
      meet with President Milošević. The meeting took place at Doba-
      novci, the hunting lodge outside Belgrade, where Mr. Bildt had met
      President Milošević and General Mladić one week earlier. According
      to Mr. Bildt’s public account of that second meeting, he pressed the
      President to arrange immediate access for UNHCR to assist the
      people of Srebrenica, and for ICRC to start to register those who
      were being treated by the BSA as prisoners of war. He also insisted
      that the Netherlands soldiers be allowed to leave at will. Mr. Bildt
      added that the international community would not tolerate an attack
      on Goražde, and that a ‘green light’ would have to be secured for
      free and unimpeded access to the enclaves. He also demanded that
      the road between Kiseljak and Sarajevo (‘Route Swan’) be opened to
      all non-military transport. President Milošević apparently acceded
      to the various demands, but also claimed that he did not have con-
      trol over the matter. Milošević had also apparently explained, earlier
      in the meeting, that the whole incident had been provoked by
      escalating Muslim attacks from the enclave, in violation of the
      1993 demilitarization agreement.

         A few hours into the meeting, General Mladić arrived at Doba-
      novci. Mr. Bildt noted that General Mladić readily agreed to most
      of the demands on Srebrenica, but remained opposed to some of the
      arrangements pertaining to the other enclaves, Sarajevo in particu-
      lar. Eventually, with President Milošević’s intervention, it appeared
      that an agreement in principle had been reached. It was decided that

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212         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      another meeting would be held the next day in order to confirm the
      arrangements. Mr. Bildt had already arranged with Mr. Stoltenberg
      and Mr. Akashi [the Special Representative of the Secretary-
      General] that they would join him in Belgrade. He also requested
      that the UNPROFOR Commander also come to Belgrade in order
      to finalize some of the military details with Mladić.” (A/54/549,
      paras. 372-373.)
  409. By 19 July, on the basis of the Belgrade meeting, Mr. Akashi was
hopeful that both President Milošević and General Mladić might show
some flexibility. The UNPROFOR Commander met with Mladić on
19 July and throughout the meeting kept in touch with Mr. Bildt who
was holding parallel negotiations with President Milošević in Belgrade.
Mladić gave his version of the events of the preceding days (his troops
had “‘finished [it] in a correct way’” ; some “‘unfortunate small incidents’
had occurred”). The UNPROFOR Commander and Mladić then signed
an agreement which provided for

        “ICRC access to all ‘reception centres’ where the men and boys of
      Srebrenica were being held, by the next day ;

         UNHCR and humanitarian aid convoys to be given access to
      Srebrenica ;
         The evacuation of wounded from Potočari, as well as the hospital
      in Bratunac ;
         The return of Dutchbat weapons and equipment taken by the
      BSA ;
         The transfer of Dutchbat out of the enclave commencing on the
      afternoon of 21 July, following the evacuation of the remaining
      women, children and elderly who wished to leave.
         Subsequent to the signing of this agreement, the Special Repre-
      sentative wrote to President Milošević, reminding him of the agree-
      ment, that had not yet been honoured, to allow ICRC access to
      Srebrenica. The Special Representative later also telephoned Presi-
      dent Milošević to reiterate the same point.” (Ibid., para. 392.)

  410. The Court was referred to other evidence supporting or denying
the Respondent’s effective control over, participation in, involvement in,
or influence over the events in and around Srebrenica in July 1995. The
Respondent quotes two substantial reports prepared seven years after the
events, both of which are in the public domain, and readily accessible.
The first, Srebrenica — a “Safe” Area, published in 2002 by the Nether-
lands Institute for War Documentation was prepared over a lengthy
period by an expert team. The Respondent has drawn attention to the
fact that this report contains no suggestion that the FRY leadership was
involved in planning the attack or inciting the killing of non-Serbs ; nor

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any hard evidence of assistance by the Yugoslav army to the armed
forces of the Republika Srpska before the attack ; nor any suggestion that
the Belgrade Government had advance knowledge of the attack. The
Respondent also quotes this passage from point 10 of the Epilogue to the
Report relating to the “mass slaughter” and “the executions” following
the fall of Srebrenica : “There is no evidence to suggest any political or
military liaison with Belgrade, and in the case of this mass murder such a
liaison is highly improbable.” The Respondent further observes that the
Applicant’s only response to this submission is to point out that “the
report, by its own admission, is not exhaustive”, and that this Court has
been referred to evidence not used by the authors.

   411. The Court observes, in respect of the Respondent’s submissions,
that the authors of the Report do conclude that Belgrade was aware of
the intended attack on Srebrenica. They record that the Dutch Military
Intelligence Service and another Western intelligence service concluded
that the July 1995 operations were co-ordinated with Belgrade (Part III,
Chap. 7, Sect. 7). More significantly for present purposes, however, the
authors state that “there is no evidence to suggest participation in the
preparations for executions on the part of Yugoslav military personnel or
the security agency (RDB). In fact there is some evidence to support the
opposite view . . .” (Part IV, Chap. 2, Sect. 20). That supports the passage
from point 10 of the Epilogue quoted by the Respondent, which was pre-
ceded by the following sentence : “Everything points to a central decision
by the General Staff of the VRS.”

   412. The second report is Balkan Battlegrounds, prepared by the
United States Central Intelligence Agency, also published in 2002. The
first volume under the heading “The Possibility of Yugoslav involve-
ment” arrives at the following conclusion :

        “No basis has been established to implicate Belgrade’s military or
      security forces in the post-Srebrenica atrocities. While there are indi-
      cations that the VJ or RDB [the Serbian State Security Department]
      may have contributed elements to the Srebrenica battle, there is no
      similar evidence that Belgrade-directed forces were involved in any
      of the subsequent massacres. Eyewitness accounts by survivors may
      be imperfect recollections of events, and details may have been over-
      looked. Narrations and other available evidence suggest that only
      Bosnian Serb troops were employed in the atrocities and executions
      that followed the military conquest of Srebrenica.” (Balkan Battle-
      grounds, p. 353.)

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214         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

The response of the Applicant was to quote an earlier passage which
refers to reports which “suggest” that VJ troops and possibly elements of
the Serbian State Security Department may have been engaged in the
battle in Srebrenica — as indeed the second sentence of the passage
quoted by the Respondent indicates. It is a cautious passage, and signifi-
cantly gives no indication of any involvement by the Respondent in the
post-conflict atrocities which are the subject of genocide-related convic-
tions. Counsel for the Respondent also quoted from the evidence of the
Deputy Commander of Dutchbat, given in the Milošević trial, in which
the accused put to the officer the point quoted earlier from the Epilogue
to the Netherlands report. The officer responded :

         “At least for me, I did not have any evidence that it was launched
      in co-operation with Belgrade. And again, I read all kinds of reports
      and opinions and papers where all kinds of scenarios were analysed,
      and so forth. Again, I do not have any proof that the action, being
      the attack on the enclave, was launched in co-operation with Bel-
      grade.”
   The other evidence on which the Applicant relied relates to the influ-
ence, rather than the control, that President Milošević had or did not
have over the authorities in Pale. It mainly consists of the evidence given
at the Milošević trial by Lord Owen and General Wesley Clark and also
Lord Owen’s publications. It does not establish a factual basis for finding
the Respondent responsible on a basis of direction or control.

                                    *   *
  (5) Conclusion as to Responsibility for Events at Srebrenica under
       Article III, Paragraph (a), of the Genocide Convention
  413. In the light of the information available to it, the Court finds, as
indicated above, that it has not been established that the massacres at
Srebrenica were committed by persons or entities ranking as organs of
the Respondent (see paragraph 395 above). It finds also that it has not
been established that those massacres were committed on the instructions
or under the direction of organs of the respondent State, nor that the
Respondent exercised effective control over the operations in the course
of which those massacres, which, as indicated in paragraph 297 above,
constituted the crime of genocide, were perpetrated.
  The Applicant has not proved that instructions were issued by the
federal authorities in Belgrade, or by any other organ of the FRY, to
commit the massacres, still less that any such instructions were given with
the specific intent (dolus specialis) characterizing the crime of genocide,
which would have had to be present in order for the Respondent to be
held responsible on this basis. All indications are to the contrary : that the

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decision to kill the adult male population of the Muslim community in
Srebrenica was taken by some members of the VRS Main Staff, but with-
out instructions from or effective control by the FRY.

   As for the killings committed by the “Scorpions” paramilitary militias,
notably at Trnovo (paragraph 289 above), even if it were accepted that
they were an element of the genocide committed in the Srebrenica area,
which is not clearly established by the decisions thus far rendered by the
ICTY (see, in particular, the Trial Chamber’s decision of 12 April 2006 in
the Stanišić and Simatović case, IT-03-69), it has not been proved that
they took place either on the instructions or under the control of organs
of the FRY.
   414. Finally, the Court observes that none of the situations, other
than those referred to in Articles 4 and 8 of the ILC’s Articles on State
Responsibility, in which specific conduct may be attributed to a State,
matches the circumstances of the present case in regard to the possibility
of attributing the genocide at Srebrenica to the Respondent. The Court
does not see itself required to decide at this stage whether the ILC’s
Articles dealing with attribution, apart from Articles 4 and 8, express
present customary international law, it being clear that none of them
apply in this case. The acts constituting genocide were not committed
by persons or entities which, while not being organs of the FRY, were
empowered by it to exercise elements of the governmental authority
(Art. 5), nor by organs placed at the Respondent’s disposal by another
State (Art. 6), nor by persons in fact exercising elements of the govern-
mental authority in the absence or default of the official authorities of
the Respondent (Art. 9) ; finally, the Respondent has not acknowledged
and adopted the conduct of the perpetrators of the acts of genocide as
its own (Art. 11).

  415. The Court concludes from the foregoing that the acts of those
who committed genocide at Srebrenica cannot be attributed to the
Respondent under the rules of international law of State responsibility :
thus, the international responsibility of the Respondent is not engaged on
this basis.

                                  * * *

  VIII. THE QUESTION OF RESPONSIBILITY, IN RESPECT OF SREBRENICA,
  FOR ACTS ENUMERATED IN ARTICLE III, PARAGRAPHS (b) TO (e), OF
                       THE GENOCIDE CONVENTION

  416. The Court now comes to the second of the questions set out in
paragraph 379 above, namely, that relating to the Respondent’s possible
responsibility on the ground of one of the acts related to genocide
enumerated in Article III of the Convention. These are : conspiracy to

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commit genocide (Art. III, para. (b)), direct and public incitement to com-
mit genocide (Art. III, para. (c)), attempt to commit genocide (Art. III,
para. (d)) — though no claim is made under this head in the Applicant’s
final submissions in the present case — and complicity in genocide
(Art. III, para. (e)). For the reasons already stated (paragraph 380
above), the Court must make a finding on this matter inasmuch as it has
replied in the negative to the previous question, that of the Respondent’s
responsibility in the commission of the genocide itself.

   417. It is clear from an examination of the facts of the case that sub-
paragraphs (b) and (c) of Article III are irrelevant in the present case. It
has not been proved that organs of the FRY, or persons acting on the
instructions or under the effective control of that State, committed acts
that could be characterized as “[c]onspiracy to commit genocide”(Art. III,
para. (b)), or as “[d]irect and public incitement to commit genocide”
(Art. III, para. (c)), if one considers, as is appropriate, only the events in
Srebrenica. As regards paragraph (b), what was said above regarding the
attribution to the Respondent of acts of genocide, namely that the mas-
sacres were perpetrated by persons and groups of persons (the VRS in
particular) who did not have the character of organs of the Respondent,
and did not act on the instructions or under the effective control of the
Respondent, is sufficient to exclude the latter’s responsibility in this
regard. As regards subparagraph (c), none of the information brought to
the attention of the Court is sufficient to establish that organs of the
Respondent, or persons acting on its instructions or under its effective
control, directly and publicly incited the commission of the genocide in
Srebrenica ; nor is it proven, for that matter, that such organs or persons
incited the commission of acts of genocide anywhere else on the territory
of Bosnia and Herzegovina. In this respect, the Court must only accept
precise and incontrovertible evidence, of which there is clearly none.

   418. A more delicate question is whether it can be accepted that acts
which could be characterized as “complicity in genocide”, within the
meaning of Article III, paragraph (e), can be attributed to organs of the
Respondent or to persons acting under its instructions or under its effec-
tive control.
   This question calls for some preliminary comment.
   419. First, the question of “complicity” is to be distinguished from the
question, already considered and answered in the negative, whether the
perpetrators of the acts of genocide committed in Srebrenica acted on the
instructions of or under the direction or effective control of the organs of
the FRY. It is true that in certain national systems of criminal law, giving
instructions or orders to persons to commit a criminal act is considered
as the mark of complicity in the commission of that act. However, in the
particular context of the application of the law of international respon-
sibility in the domain of genocide, if it were established that a genocidal
act had been committed on the instructions or under the direction of a

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State, the necessary conclusion would be that the genocide was attribu-
table to the State, which would be directly responsible for it, pursuant to
the rule referred to above (paragraph 398), and no question of complicity
would arise. But, as already stated, that is not the situation in the present
case.
  However there is no doubt that “complicity”, in the sense of
Article III, paragraph (e), of the Convention, includes the provision
of means to enable or facilitate the commission of the crime ; it is thus on
this aspect that the Court must focus. In this respect, it is noteworthy
that, although “complicity”, as such, is not a notion which exists in the
current terminology of the law of international responsibility, it is similar
to a category found among the customary rules constituting the law of
State responsibility, that of the “aid or assistance” furnished by one State
for the commission of a wrongful act by another State.
  420. In this connection, reference should be made to Article 16 of the
ILC’s Articles on State Responsibility, reflecting a customary rule, which
reads as follows :
                                    “Article 16
         Aid or assistance in the commission of an internationally wrongful
                                       act
         A State which aids or assists another State in the commission of
      an internationally wrongful act by the latter is internationally respon-
      sible for doing so if :
      (a) That State does so with knowledge of the circumstances of the
          internationally wrongful act ; and
      (b) The act would be internationally wrongful if committed by that
          State.”
Although this provision, because it concerns a situation characterized by
a relationship between two States, is not directly relevant to the present
case, it nevertheless merits consideration. The Court sees no reason to
make any distinction of substance between “complicity in genocide”,
within the meaning of Article III, paragraph (e), of the Convention, and
the “aid or assistance” of a State in the commission of a wrongful act by
another State within the meaning of the aforementioned Article 16 —
setting aside the hypothesis of the issue of instructions or directions or
the exercise of effective control, the effects of which, in the law of interna-
tional responsibility, extend beyond complicity. In other words, to ascer-
tain whether the Respondent is responsible for “complicity in genocide”
within the meaning of Article III, paragraph (e), which is what the Court
now has to do, it must examine whether organs of the respondent State,
or persons acting on its instructions or under its direction or effective
control, furnished “aid or assistance” in the commission of the genocide
in Srebrenica, in a sense not significantly different from that of those con-
cepts in the general law of international responsibility.

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218         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

   421. Before the Court turns to an examination of the facts, one further
comment is required. It concerns the link between the specific intent
(dolus specialis) which characterizes the crime of genocide and the
motives which inspire the actions of an accomplice (meaning a person
providing aid or assistance to the direct perpetrators of the crime) : the
question arises whether complicity presupposes that the accomplice shares
the specific intent (dolus specialis) of the principal perpetrator. But
whatever the reply to this question, there is no doubt that the conduct of
an organ or a person furnishing aid or assistance to a perpetrator of the
crime of genocide cannot be treated as complicity in genocide unless at
the least that organ or person acted knowingly, that is to say, in particu-
lar, was aware of the specific intent (dolus specialis) of the principal per-
petrator. If that condition is not fulfilled, that is sufficient to exclude
categorization as complicity. The Court will thus first consider whether
this latter condition is met in the present case. It is only if it replies to that
question of fact in the affirmative that it will need to determine the legal
point referred to above.

   422. The Court is not convinced by the evidence furnished by the
Applicant that the above conditions were met. Undoubtedly, the quite
substantial aid of a political, military and financial nature provided by
the FRY to the Republika Srpska and the VRS, beginning long before
the tragic events of Srebrenica, continued during those events. There is
thus little doubt that the atrocities in Srebrenica were committed, at least
in part, with the resources which the perpetrators of those acts possessed
as a result of the general policy of aid and assistance pursued towards
them by the FRY. However, the sole task of the Court is to establish the
legal responsibility of the Respondent, a responsibility which is subject to
very specific conditions. One of those conditions is not fulfilled, because
it is not established beyond any doubt in the argument between the
Parties whether the authorities of the FRY supplied — and continued to
supply — the VRS leaders who decided upon and carried out those acts
of genocide with their aid and assistance, at a time when those authorities
were clearly aware that genocide was about to take place or was under
way; in other words that not only were massacres about to be carried out
or already under way, but that their perpetrators had the specific intent
characterizing genocide, namely, the intent to destroy, in whole or in
part, a human group, as such.

   423. A point which is clearly decisive in this connection is that it was
not conclusively shown that the decision to eliminate physically the adult
male population of the Muslim community from Srebrenica was brought
to the attention of the Belgrade authorities when it was taken ; the Court
has found (paragraph 295 above) that that decision was taken shortly
before it was actually carried out, a process which took a very short time
(essentially between 13 and 16 July 1995), despite the exceptionally high
number of victims. It has therefore not been conclusively established

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that, at the crucial time, the FRY supplied aid to the perpetrators of the
genocide in full awareness that the aid supplied would be used to commit
genocide.

   424. The Court concludes from the above that the international respon-
sibility of the Respondent is not engaged for acts of complicity in geno-
cide mentioned in Article III, paragraph (e), of the Convention. In the
light of this finding, and of the findings above relating to the other para-
graphs of Article III, the international responsibility of the Respondent is
not engaged under Article III as a whole.

                                   * * *
IX. THE QUESTION OF RESPONSIBILITY FOR BREACH OF THE OBLIGATIONS
                TO PREVENT AND PUNISH GENOCIDE

   425. The Court now turns to the third and last of the questions set out
in paragraph 379 above : has the respondent State complied with its obli-
gations to prevent and punish genocide under Article I of the Conven-
tion?
   Despite the clear links between the duty to prevent genocide and the
duty to punish its perpetrators, these are, in the view of the Court, two
distinct yet connected obligations, each of which must be considered in
turn.
   426. It is true that, simply by its wording, Article I of the Convention
brings out the close link between prevention and punishment : “The Con-
tracting Parties confirm that genocide, whether committed in time of
peace or in time of war, is a crime under international law which they
undertake to prevent and to punish.” It is also true that one of the most
effective ways of preventing criminal acts, in general, is to provide pen-
alties for persons committing such acts, and to impose those penalties
effectively on those who commit the acts one is trying to prevent. Lastly,
it is true that, although in the subsequent Articles, the Convention
includes fairly detailed provisions concerning the duty to punish
(Articles III to VII), it reverts to the obligation of prevention, stated as
a principle in Article I, only in Article VIII :

         “Any Contracting Party may call upon the competent organs of
      the United Nations to take such action under the Charter of the
      United Nations as they consider appropriate for the prevention and
      suppression of acts of genocide or any of the other acts enumerated
      in article III.”
  427. However, it is not the case that the obligation to prevent has no
separate legal existence of its own ; that it is, as it were, absorbed by the

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obligation to punish, which is therefore the only duty the performance of
which may be subject to review by the Court. The obligation on each
contracting State to prevent genocide is both normative and compelling.
It is not merged in the duty to punish, nor can it be regarded as simply a
component of that duty. It has its own scope, which extends beyond the
particular case envisaged in Article VIII, namely reference to the compe-
tent organs of the United Nations, for them to take such action as they
deem appropriate. Even if and when these organs have been called upon,
this does not mean that the States parties to the Convention are relieved
of the obligation to take such action as they can to prevent genocide from
occurring, while respecting the United Nations Charter and any decisions
that may have been taken by its competent organs.

  This is the reason why the Court will first consider the manner in
which the Respondent has performed its obligation to prevent before
examining the situation as regards the obligation to punish.

                 (1) The Obligation to Prevent Genocide
   428. As regards the obligation to prevent genocide, the Court thinks it
necessary to begin with the following introductory remarks and clarifica-
tions, amplifying the observations already made above.
   429. First, the Genocide Convention is not the only international
instrument providing for an obligation on the States parties to it to take
certain steps to prevent the acts it seeks to prohibit. Many other instru-
ments include a similar obligation, in various forms : see, for example, the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment of 10 December 1984 (Art. 2) ; the Convention
on the Prevention and Punishment of Crimes against Internationally Pro-
tected Persons, Including Diplomatic Agents, of 14 December 1973
(Art. 4) ; the Convention on the Safety of United Nations and Associated
Personnel of 9 December 1994 (Art. 11) ; the International Convention
on the Suppression of Terrorist Bombings of 15 December 1997 (Art. 15).
The content of the duty to prevent varies from one instrument to another,
according to the wording of the relevant provisions, and depending on
the nature of the acts to be prevented.

   The decision of the Court does not, in this case, purport to establish a
general jurisprudence applicable to all cases where a treaty instrument, or
other binding legal norm, includes an obligation for States to prevent cer-
tain acts. Still less does the decision of the Court purport to find whether,
apart from the texts applicable to specific fields, there is a general obliga-
tion on States to prevent the commission by other persons or entities of
acts contrary to certain norms of general international law. The Court
will therefore confine itself to determining the specific scope of the duty
to prevent in the Genocide Convention, and to the extent that such a

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determination is necessary to the decision to be given on the dispute
before it. This will, of course, not absolve it of the need to refer, if need
be, to the rules of law whose scope extends beyond the specific field
covered by the Convention.

   430. Secondly, it is clear that the obligation in question is one of con-
duct and not one of result, in the sense that a State cannot be under an
obligation to succeed, whatever the circumstances, in preventing the com-
mission of genocide : the obligation of States parties is rather to employ
all means reasonably available to them, so as to prevent genocide so far
as possible. A State does not incur responsibility simply because the
desired result is not achieved ; responsibility is however incurred if the
State manifestly failed to take all measures to prevent genocide which
were within its power, and which might have contributed to preventing
the genocide. In this area the notion of “due diligence”, which calls for an
assessment in concreto, is of critical importance. Various parameters
operate when assessing whether a State has duly discharged the obliga-
tion concerned. The first, which varies greatly from one State to another,
is clearly the capacity to influence effectively the action of persons likely
to commit, or already committing, genocide. This capacity itself depends,
among other things, on the geographical distance of the State concerned
from the scene of the events, and on the strength of the political links, as
well as links of all other kinds, between the authorities of that State and
the main actors in the events. The State’s capacity to influence must also
be assessed by legal criteria, since it is clear that every State may only act
within the limits permitted by international law ; seen thus, a State’s
capacity to influence may vary depending on its particular legal position
vis-à-vis the situations and persons facing the danger, or the reality, of
genocide. On the other hand, it is irrelevant whether the State whose
responsibility is in issue claims, or even proves, that even if it had
employed all means reasonably at its disposal, they would not have suf-
ficed to prevent the commission of genocide. As well as being generally
difficult to prove, this is irrelevant to the breach of the obligation of con-
duct in question, the more so since the possibility remains that the com-
bined efforts of several States, each complying with its obligation to
prevent, might have achieved the result — averting the commission
of genocide — which the efforts of only one State were insufficient to
produce.

   431. Thirdly, a State can be held responsible for breaching the obliga-
tion to prevent genocide only if genocide was actually committed. It is at
the time when commission of the prohibited act (genocide or any of the
other acts listed in Article III of the Convention) begins that the breach

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of an obligation of prevention occurs. In this respect, the Court refers
to a general rule of the law of State responsibility, stated by the ILC in
Article 14, paragraph 3, of its Articles on State Responsibility :

         “. . . . . . . . . . . . . . . . . . . . . . . . . . . .
         3. The breach of an international obligation requiring a State to
      prevent a given event occurs when the event occurs and extends over
      the entire period during which the event continues and remains not
      in conformity with that obligation.”
This obviously does not mean that the obligation to prevent genocide
only comes into being when perpetration of genocide commences ; that
would be absurd, since the whole point of the obligation is to prevent, or
attempt to prevent, the occurrence of the act. In fact, a State’s obligation
to prevent, and the corresponding duty to act, arise at the instant that the
State learns of, or should normally have learned of, the existence of a
serious risk that genocide will be committed. From that moment onwards,
if the State has available to it means likely to have a deterrent effect on
those suspected of preparing genocide, or reasonably suspected of har-
bouring specific intent (dolus specialis), it is under a duty to make such
use of these means as the circumstances permit. However, if neither geno-
cide nor any of the other acts listed in Article III of the Convention are
ultimately carried out, then a State that omitted to act when it could have
done so cannot be held responsible a posteriori, since the event did not
happen which, under the rule set out above, must occur for there to be a
violation of the obligation to prevent.

   In consequence, in the present case the Court will have to consider the
Respondent’s conduct, in the light of its duty to prevent, solely in con-
nection with the massacres at Srebrenica, because these are the only acts
in respect of which the Court has concluded in this case that genocide
was committed.
   432. Fourth and finally, the Court believes it especially important to
lay stress on the differences between the requirements to be met before a
State can be held to have violated the obligation to prevent genocide —
within the meaning of Article I of the Convention — and those to be
satisfied in order for a State to be held responsible for “complicity in
genocide” — within the meaning of Article III, paragraph (e) — as
previously discussed. There are two main differences ; they are so sig-
nificant as to make it impossible to treat the two types of violation in the
same way.

   In the first place, as noted above, complicity always requires that some
positive action has been taken to furnish aid or assistance to the perpe-
trators of the genocide, while a violation of the obligation to prevent

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results from mere failure to adopt and implement suitable measures to
prevent genocide from being committed. In other words, while complicity
results from commission, violation of the obligation to prevent results
from omission ; this is merely the reflection of the notion that the ban on
genocide and the other acts listed in Article III, including complicity,
places States under a negative obligation, the obligation not to commit
the prohibited acts, while the duty to prevent places States under positive
obligations, to do their best to ensure that such acts do not occur.

  In the second place, as also noted above, there cannot be a finding of
complicity against a State unless at the least its organs were aware that
genocide was about to be committed or was under way, and if the aid
and assistance supplied, from the moment they became so aware onwards,
to the perpetrators of the criminal acts or to those who were on the point
of committing them, enabled or facilitated the commission of the acts. In
other words, an accomplice must have given support in perpetrating the
genocide with full knowledge of the facts. By contrast, a State may be
found to have violated its obligation to prevent even though it had no
certainty, at the time when it should have acted, but failed to do so, that
genocide was about to be committed or was under way ; for it to incur
responsibility on this basis it is enough that the State was aware, or
should normally have been aware, of the serious danger that acts of
genocide would be committed. As will be seen below, this latter difference
could prove decisive in the present case in determining the responsibility
incurred by the Respondent.

   433. In light of the foregoing, the Court will now consider the facts of
the case. For the reasons stated above (paragraph 431), it will confine
itself to the FRY’s conduct vis-à-vis the Srebrenica massacres.

   434. The Court would first note that, during the period under con-
sideration, the FRY was in a position of influence over the Bosnian Serbs
who devised and implemented the genocide in Srebrenica, unlike that of
any of the other States parties to the Genocide Convention owing to the
strength of the political, military and financial links between the FRY on
the one hand and the Republika Srpska and the VRS on the other,
which, though somewhat weaker than in the preceding period, none-
theless remained very close.
   435. Secondly, the Court cannot but note that, on the relevant date,
the FRY was bound by very specific obligations by virtue of the two
Orders indicating provisional measures delivered by the Court in 1993. In
particular, in its Order of 8 April 1993, the Court stated, inter alia, that
although not able, at that early stage in the proceedings, to make “defini-
tive findings of fact or of imputability” (I.C.J. Reports 1993, p. 22,
para. 44) the FRY was required to ensure :

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      “that any military, paramilitary or irregular armed units which may
      be directed or supported by it, as well as any organizations and per-
      sons which may be subject to its control, direction or influence, do
      not commit any acts of genocide, of conspiracy to commit genocide,
      of direct and public incitement to commit genocide, or of complicity
      in genocide . . .” (I.C.J. Reports 1993, p. 24, para. 52 A (2)).

The Court’s use, in the above passage, of the term “influence” is particu-
larly revealing of the fact that the Order concerned not only the persons
or entities whose conduct was attributable to the FRY, but also all those
with whom the Respondent maintained close links and on which it could
exert a certain influence. Although in principle the two issues are sepa-
rate, and the second will be examined below, it is not possible, when con-
sidering the way the Respondent discharged its obligation of prevention
under the Convention, to fail to take account of the obligation incum-
bent upon it, albeit on a different basis, to implement the provisional
measures indicated by the Court.

   436. Thirdly, the Court recalls that although it has not found that the
information available to the Belgrade authorities indicated, as a matter of
certainty, that genocide was imminent (which is why complicity in geno-
cide was not upheld above : paragraph 424), they could hardly have been
unaware of the serious risk of it once the VRS forces had decided to
occupy the Srebrenica enclave. Among the documents containing infor-
mation clearly suggesting that such an awareness existed, mention should
be made of the above-mentioned report (see paragraphs 283 and 285
above) of the United Nations Secretary-General prepared pursuant to
General Assembly resolution 53/35 on the “fall of Srebrenica” (United
Nations doc. A/54/549), which recounts the visit to Belgrade on
14 July 1995 of the European Union negotiator Mr. Bildt to meet
Mr. Milošević. Mr. Bildt, in substance, informed Mr. Milošević of his
serious concern and

      “pressed the President to arrange immediate access for the UNHCR
      to assist the people of Srebrenica, and for the ICRC to start to
      register those who were being treated by the BSA [Bosnian Serb
      Army] as prisoners of war”.

  437. The Applicant has drawn attention to certain evidence given by
General Wesley Clark before the ICTY in the Milošević case.
General Clark referred to a conversation that he had had with Milošević
during the negotiation of the Dayton Agreement. He stated that

         “I went to Milošević and I asked him. I said, ‘If you have so much
      influence over these [Bosnian] Serbs, how could you have allowed

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225         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      General Mladić to have killed all those people at Srebrenica ?’ And
      he looked to me — at me. His expression was very grave. He paused
      before he answered, and he said, ‘Well, General Clark, I warned him
      not to do this, but he didn’t listen to me.’ And it was in the context
      of all the publicity at the time about the Srebrenica massacre.”
      (Milošević, IT-02-54-T, Transcript, 16 December 2003, pp. 30494-
      30495).

General Clark gave it as his opinion, in his evidence before the ICTY,
that the circumstances indicated that Milošević had foreknowledge of
what was to be “a military operation combined with a massacre” (ibid.,
p. 30497). The ICTY record shows that Milošević denied ever making the
statement to which General Clark referred, but the Trial Chamber
nevertheless relied on General Clark’s testimony in its Decision of
16 June 2004 when rejecting the Motion for Judgment of Acquittal
(Milošević, IT-02-54-T, Decision on Motion for Judgment of Acquittal,
16 June 2004, para. 280).
   438. In view of their undeniable influence and of the information,
voicing serious concern, in their possession, the Yugoslav federal authori-
ties should, in the view of the Court, have made the best efforts within
their power to try and prevent the tragic events then taking shape, whose
scale, though it could not have been foreseen with certainty, might at
least have been surmised. The FRY leadership, and President Milošević
above all, were fully aware of the climate of deep-seated hatred which
reigned between the Bosnian Serbs and the Muslims in the Srebrenica
region. As the Court has noted in paragraph 423 above, it has not been
shown that the decision to eliminate physically the whole of the adult
male population of the Muslim community of Srebrenica was brought to
the attention of the Belgrade authorities. Nevertheless, given all the inter-
national concern about what looked likely to happen at Srebrenica, given
Milošević’s own observations to Mladić, which made it clear that the
dangers were known and that these dangers seemed to be of an order that
could suggest intent to commit genocide, unless brought under control, it
must have been clear that there was a serious risk of genocide in Sre-
brenica. Yet the Respondent has not shown that it took any initiative to
prevent what happened, or any action on its part to avert the atrocities
which were committed. It must therefore be concluded that the organs of
the Respondent did nothing to prevent the Srebrenica massacres, claim-
ing that they were powerless to do so, which hardly tallies with their
known influence over the VRS. As indicated above, for a State to be held
responsible for breaching its obligation of prevention, it does not need to
be proven that the State concerned definitely had the power to prevent
the genocide ; it is sufficient that it had the means to do so and that it
manifestly refrained from using them.

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  Such is the case here. In view of the foregoing, the Court concludes
that the Respondent violated its obligation to prevent the Srebrenica
genocide in such a manner as to engage its international responsibility.

                                    *   *
                  (2) The Obligation to Punish Genocide
   439. The Court now turns to the question of the Respondent’s com-
pliance with its obligation to punish the crime of genocide stemming
from Article I and the other relevant provisions of the Convention.
   440. In its fifth final submission, Bosnia and Herzegovina requests the
Court to adjudge and declare :
         “5. That Serbia and Montenegro has violated and is violating its
      obligations under the Convention on the Prevention and Punish-
      ment of the Crime of Genocide for having failed and for failing to
      punish acts of genocide or any other act prohibited by the Conven-
      tion on the Prevention and Punishment of the Crime of Genocide,
      and for having failed and for failing to transfer individuals accused
      of genocide or any other act prohibited by the Convention to the
      International Criminal Tribunal for the former Yugoslavia and to
      fully co-operate with this Tribunal.”

  441. This submission implicitly refers to Article VI of the Convention,
according to which :
         “Persons charged with genocide or any of the other acts enumer-
      ated in article III shall be tried by a competent tribunal of the State
      in the territory of which the act was committed, or by such interna-
      tional penal tribunal as may have jurisdiction with respect to those
      Contracting Parties which shall have accepted its jurisdiction.”

   442. The Court would first recall that the genocide in Srebrenica, the
commission of which it has established above, was not carried out in the
Respondent’s territory. It concludes from this that the Respondent can-
not be charged with not having tried before its own courts those accused
of having participated in the Srebrenica genocide, either as principal per-
petrators or as accomplices, or of having committed one of the other acts
mentioned in Article III of the Convention in connection with the Sre-
brenica genocide. Even if Serbian domestic law granted jurisdiction to its
criminal courts to try those accused, and even supposing such proceed-
ings were compatible with Serbia’s other international obligations,
inter alia its obligation to co-operate with the ICTY, to which the Court
will revert below, an obligation to try the perpetrators of the Srebrenica
massacre in Serbia’s domestic courts cannot be deduced from Article VI.
Article VI only obliges the Contracting Parties to institute and exercise

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territorial criminal jurisdiction ; while it certainly does not prohibit States,
with respect to genocide, from conferring jurisdiction on their criminal
courts based on criteria other than where the crime was committed which
are compatible with international law, in particular the nationality of the
accused, it does not oblige them to do so.

   443. It is thus to the obligation for States parties to co-operate with
the “international penal tribunal” mentioned in the above provision that
the Court must now turn its attention. For it is certain that once such a
court has been established, Article VI obliges the Contracting Parties
“which shall have accepted its jurisdiction” to co-operate with it, which
implies that they will arrest persons accused of genocide who are in their
territory — even if the crime of which they are accused was committed
outside it — and, failing prosecution of them in the parties’ own courts,
that they will hand them over for trial by the competent international
tribunal.
   444. In order to determine whether the Respondent has fulfilled its
obligations in this respect, the Court must first answer two preliminary
questions : does the ICTY constitute an “international penal tribunal”
within the meaning of Article VI ? And must the Respondent be regarded
as having “accepted the jurisdiction” of the tribunal within the meaning
of that provision?
   445. As regards the first question, the Court considers that the reply
must definitely be in the affirmative. The notion of an “international
penal tribunal” within the meaning of Article VI must at least cover all
international criminal courts created after the adoption of the Conven-
tion (at which date no such court existed) of potentially universal scope,
and competent to try the perpetrators of genocide or any of the other acts
enumerated in Article III. The nature of the legal instrument by which
such a court is established is without importance in this respect. When
drafting the Genocide Convention, its authors probably thought that
such a court would be created by treaty : a clear pointer to this lies in the
reference to “those Contracting Parties which shall have accepted [the]
jurisdiction” of the international penal tribunal. Yet, it would be con-
trary to the object of the provision to interpret the notion of “interna-
tional penal tribunal” restrictively in order to exclude from it a court
which, as in the case of the ICTY, was created pursuant to a United
Nations Security Council resolution adopted under Chapter VII of the
Charter. The Court has found nothing to suggest that such a possibility
was considered by the authors of the Convention, but no intention of
seeking to exclude it can be imputed to them.

  446. The question whether the Respondent must be regarded as having
“accepted the jurisdiction” of the ICTY within the meaning of Article VI
must consequently be formulated as follows : is the Respondent obliged
to accept the jurisdiction of the ICTY, and to co-operate with the Tribu-
nal by virtue of the Security Council resolution which established it, or of

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some other rule of international law ? If so, it would have to be concluded
that, for the Respondent, co-operation with the ICTY constitutes both
an obligation stemming from the resolution concerned and from the
United Nations Charter, or from another norm of international law
obliging the Respondent to co-operate, and an obligation arising from its
status as a party to the Genocide Convention, this last clearly being the
only one of direct relevance in the present case.
   447. For the purposes of the present case, the Court only has to deter-
mine whether the FRY was under an obligation to co-operate with the
ICTY, and if so, on what basis, from when the Srebrenica genocide was
committed in July 1995. To that end, suffice it to note that the FRY was
under an obligation to co-operate with the ICTY from 14 December 1995
at the latest, the date of the signing and entry into force of the Dayton
Agreement between Bosnia and Herzegovina, Croatia and the FRY.
Annex 1A of that treaty, made binding on the parties by virtue of its
Article II, provides that they must fully co-operate, notably with the
ICTY. Thus, from 14 December 1995 at the latest, and at least on the
basis of the Dayton Agreement, the FRY must be regarded as having
“accepted [the] jurisdiction” of the ICTY within the meaning of
Article VI of the Convention. This fact is sufficient for the Court in
its consideration of the present case, since its task is to rule upon the
Respondent’s compliance with the obligation resulting from Article VI
of the Convention in relation to the Srebrenica genocide, from when it
was perpetrated to the present day, and since the Applicant has not
invoked any failure to respect the obligation to co-operate alleged to
have occurred specifically between July and December 1995. Similarly,
the Court is not required to decide whether, between 1995 and 2000, the
FRY’s obligation to co-operate had any legal basis besides the Dayton
Agreement. Needless to say, the admission of the FRY to the United
Nations in 2000 provided a further basis for its obligation to co-operate :
but while the legal basis concerned was thereby confirmed, that did not
change the scope of the obligation. There is therefore no need, for the
purposes of assessing how the Respondent has complied with its obliga-
tion under Article VI of the Convention, to distinguish between the
period before and the period after its admission as a Member of the
United Nations, at any event from 14 December 1995 onwards.

   448. Turning now to the facts of the case, the question the Court must
answer is whether the Respondent has fully co-operated with the ICTY,
in particular by arresting and handing over to the Tribunal any persons
accused of genocide as a result of the Srebrenica genocide and finding
themselves on its territory. In this connection, the Court would first
observe that, during the oral proceedings, the Respondent asserted that
the duty to co-operate had been complied with following the régime
change in Belgrade in the year 2000, thus implicitly admitting that such
had not been the case during the preceding period. The conduct of the

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organs of the FRY before the régime change however engages the Respon-
dent’s international responsibility just as much as it does that of its State
authorities from that date. Further, the Court cannot but attach a certain
weight to the plentiful, and mutually corroborative, information suggest-
ing that General Mladić, indicted by the ICTY for genocide, as one of
those principally responsible for the Srebrenica massacres, was on the
territory of the Respondent at least on several occasions and for substan-
tial periods during the last few years and is still there now, without the
Serb authorities doing what they could and can reasonably do to ascer-
tain exactly where he is living and arrest him. In particular, counsel for
the Applicant referred during the hearings to recent statements made by
the Respondent’s Minister for Foreign Affairs, reproduced in the national
press in April 2006, and according to which the intelligence services of
that State knew where Mladić was living in Serbia, but refrained from
informing the authorities competent to order his arrest because certain
members of those services had allegedly remained loyal to the fugitive.
The authenticity and accuracy of those statements has not been disputed
by the Respondent at any time.

   449. It therefore appears to the Court sufficiently established that the
Respondent failed in its duty to co-operate fully with the ICTY. This fail-
ure constitutes a violation by the Respondent of its duties as a party to
the Dayton Agreement, and as a Member of the United Nations, and
accordingly a violation of its obligations under Article VI of the Geno-
cide Convention. The Court is of course without jurisdiction in the
present case to declare that the Respondent has breached any obligations
other than those under the Convention. But as the Court has jurisdiction
to declare a breach of Article VI insofar as it obliges States to co-operate
with the “international penal tribunal”, the Court may find for that pur-
pose that the requirements for the existence of such a breach have been
met. One of those requirements is that the State whose responsibility is in
issue must have “accepted [the] jurisdiction” of that “international penal
tribunal” ; the Court thus finds that the Respondent was under a duty to
co-operate with the tribunal concerned pursuant to international instru-
ments other than the Convention, and failed in that duty. On this point,
the Applicant’s submissions relating to the violation by the Respondent
of Articles I and VI of the Convention must therefore be upheld.

   450. It follows from the foregoing considerations that the Respondent
failed to comply both with its obligation to prevent and its obligation to
punish genocide deriving from the Convention, and that its international
responsibility is thereby engaged.

                                   * * *
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230         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

   X. THE QUESTION OF RESPONSIBILITY FOR BREACH OF THE COURT’S
            ORDERS INDICATING PROVISIONAL MEASURES
   451. In its seventh submission Bosnia and Herzegovina requests the
Court to adjudge and declare :
        “7. That in failing to comply with the Orders for indication of
     provisional measures rendered by the Court on 8 April 1993 and
     13 September 1993 Serbia and Montenegro has been in breach of its
     international obligations and is under an obligation to Bosnia and
     Herzegovina to provide for the latter violation symbolic compensa-
     tion, the amount of which is to be determined by the Court.”
   452. The Court observes that its “orders on provisional measures
under Article 41 [of the Statute] have binding effect” (LaGrand (Ger-
many v. United States of America), Judgment, I.C.J. Reports 2001,
p. 506, para. 109). Although the Court only had occasion to make such
a finding in a judgment subsequent to the Orders that it made in the
present dispute, this does not affect the binding nature of those Orders,
since in the Judgment referred to the Court did no more than give the
provisions of the Statute the meaning and scope that they had possessed
from the outset. It notes that provisional measures are aimed at preserv-
ing the rights of each of the parties pending the final decision of the
Court. The Court’s Orders of 8 April and 13 September 1993 indicating
provisional measures created legal obligations which both Parties were
required to satisfy.
   453. The Court indicated the following provisional measures in the
dispositif, paragraph 52, of its Order of 8 April 1993 :
        “A. (1). . . . . . . . . . . . . . . . . . . . . . . . .
        The Government of the Federal Republic of Yugoslavia (Serbia
     and Montenegro) should immediately, in pursuance of its under-
     taking in the Convention on the Prevention and Punishment of
     the Crime of Genocide of 9 December 1948, take all measures within
     its power to prevent commission of the crime of genocide ;

        (2). . . . . . . . . . . . . . . . . . . . . . . . . . .
        The Government of the Federal Republic of Yugoslavia (Serbia
      and Montenegro) should in particular ensure that any military,
      paramilitary or irregular armed units which may be directed or sup-
      ported by it, as well as any organizations and persons which may be
      subject to its control, direction or influence, do not commit any acts
      of genocide, of conspiracy to commit genocide, of direct and public
      incitement to commit genocide, or of complicity in genocide, whether
      directed against the Muslim population of Bosnia and Herzegovina
      or against any other national, ethnical, racial or religious group ;

      . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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231         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

        B. . . . . . . . . . . . . . . . . . . . . . . . . . . .
        The Government of the Federal Republic of Yugoslavia (Serbia
      and Montenegro) and the Government of the Republic of Bosnia
      and Herzegovina should not take any action and should ensure that
      no action is taken which may aggravate or extend the existing dis-
      pute over the prevention or punishment of the crime of genocide, or
      render it more difficult of solution.”
   454. The Court reaffirmed these measures in the dispositif of its Order
of 13 September 1993.
   455. From the Applicant’s written and oral pleadings as a whole, it is
clear that the Applicant is not accusing the Respondent of failing to respect
measure B above, and that its submissions relate solely to the measures
indicated in paragraph A, subparagraphs (1) and (2). It is therefore only to
that extent that the Court will consider whether the Respondent has fully
complied with its obligation to respect the measures ordered by the Court.

  456. The answer to this question may be found in the reasoning in the
present Judgment relating to the Applicant’s other submissions to the
Court. From these it is clear that in respect of the massacres at Srebrenica
in July 1995 the Respondent failed to fulfil its obligation indicated in
paragraph 52 A (1) of the Order of 8 April 1993 and reaffirmed in the
Order of 13 September 1993 to “take all measures within its power to
prevent commission of the crime of genocide”. Nor did it comply with
the measure indicated in paragraph 52 A (2) of the Order of 8 April 1993,
reaffirmed in the Order of 13 September 1993, insofar as that measure
required it to “ensure that any . . . organizations and persons which may
be subject to its . . . influence . . . do not commit any acts of genocide”.

   457. However, the remainder of the Applicant’s seventh submission
claiming that the Respondent failed to comply with the provisional meas-
ures indicated must be rejected for the reasons set out above in respect of
the Applicant’s other submissions (paragraphs 415 and 424).

   458. As for the request that the Court hold the Respondent to be
under an obligation to the Applicant to provide symbolic compensation,
in an amount to be determined by the Court, for the breach thus found,
the Court observes that the question of compensation for the injury
caused to the Applicant by the Respondent’s breach of aspects of the
Orders indicating provisional measures merges with the question of com-
pensation for the injury suffered from the violation of the corresponding
obligations under the Genocide Convention. It will therefore be dealt
with below, in connection with consideration of points (b) and (c) of the
Respondent’s sixth submission, which concern the financial compensa-
tion which the Applicant claims to be owed by the Respondent.

                                   * * *
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232         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

                    XI. THE QUESTION OF REPARATION

  459. Having thus found that the Respondent has failed to comply
with its obligations under the Genocide Convention in respect of the
prevention and punishment of genocide, the Court turns to the question
of reparation. The Applicant, in its final submissions, has asked the
Court to decide that the Respondent
      “must redress the consequences of its international wrongful acts
      and, as a result of the international responsibility incurred for . . .
      violations of the Convention on the Prevention and Punishment of
      the Crime of Genocide, must pay, and Bosnia and Herzegovina is
      entitled to receive, in its own right and as parens patriae for its
      citizens, full compensation for the damages and losses caused” (sub-
      mission 6 (b)).
The Applicant also asks the Court to decide that the Respondent
      “shall immediately take effective steps to ensure full compliance with
      its obligation to punish acts of genocide under the Convention on
      the Prevention and Punishment of the Crime of Genocide or any
      other act prohibited by the Convention and to transfer individuals
      accused of genocide or any other act prohibited by the Convention
      to the International Criminal Tribunal for the former Yugoslavia
      and to fully co-operate with this Tribunal” (submission 6 (a)),

and that the Respondent “shall provide specific guarantees and assur-
ances that it will not repeat the wrongful acts complained of, the form of
which guarantees and assurances is to be determined by the Court” (sub-
mission 6 (d)). These submissions, and in particular that relating to com-
pensation, were however predicated on the basis that the Court would
have upheld, not merely that part of the Applicant’s claim as relates to
the obligation of prevention and punishment, but also the claim that the
Respondent has violated its substantive obligation not to commit geno-
cide, as well as the ancillary obligations under the Convention concerning
complicity, conspiracy and incitement, and the claim that the Respond-
ent has aided and abetted genocide. The Court has now to consider what
is the appropriate form of reparation for the other forms of violation of
the Convention which have been alleged against the Respondent and
which the Court has found to have been established, that is to say
breaches of the obligations to prevent and punish.

   460. The principle governing the determination of reparation for an
internationally wrongful act is as stated by the Permanent Court of Inter-
national Justice in the Factory at Chorzów case : that “reparation must,
so far as possible, wipe out all the consequences of the illegal act and
reestablish the situation which would, in all probability, have existed if
that act had not been committed” (P.C.I.J., Series A, No. 17, p. 47 : see

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233        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

also Article 31 of the ILC’s Articles on State Responsibility). In the cir-
cumstances of this case, as the Applicant recognizes, it is inappropriate to
ask the Court to find that the Respondent is under an obligation of res-
titutio in integrum. Insofar as restitution is not possible, as the Court
stated in the case of the Gabčíkovo-Nagymaros Project (Hungary/Slova-
kia), “[i]t is a well-established rule of international law that an injured
State is entitled to obtain compensation from the State which has com-
mitted an internationally wrongful act for the damage caused by it”
(I.C.J. Reports 1997, p. 81, para. 152. ; cf. Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004, p. 198, paras. 152-153 ; see also Article 36
of the ILC’s Articles on State Responsibility). It is therefore appropriate
to consider what were the consequences of the failure of the Respondent
to comply with its obligations under the Genocide Convention to prevent
and punish the crime of genocide, committed in Bosnia and Herzegovina,
and what damage can be said to have been caused thereby.

   461. The Court has found that the authorities of the Respondent
could not have been unaware of the grave risk of genocide once the VRS
forces had decided to take possession of the Srebrenica enclave, and that
in view of its influence over the events, the Respondent must be held to
have had the means of action by which it could seek to prevent genocide,
and to have manifestly refrained from employing them (paragraph 438).
To that extent therefore it failed to comply with its obligation of preven-
tion under the Convention. The obligation to prevent the commission of
the crime of genocide is imposed by the Genocide Convention on any
State party which, in a given situation, has it in its power to contribute to
restraining in any degree the commission of genocide. To make this find-
ing, the Court did not have to decide whether the acts of genocide com-
mitted at Srebrenica would have occurred anyway even if the Respondent
had done as it should have and employed the means available to it. This
is because, as explained above, the obligation to prevent genocide places
a State under a duty to act which is not dependent on the certainty that
the action to be taken will succeed in preventing the commission of acts
of genocide, or even on the likelihood of that outcome. It therefore does
not follow from the Court’s reasoning above in finding a violation by the
Respondent of its obligation of prevention that the atrocious suffering
caused by the genocide committed at Srebrenica would not have occurred
had the violation not taken place.

  462. The Court cannot however leave it at that. Since it now has to
rule on the claim for reparation, it must ascertain whether, and to what
extent, the injury asserted by the Applicant is the consequence of wrong-
ful conduct by the Respondent with the consequence that the Respond-
ent should be required to make reparation for it, in accordance with the

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234        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

principle of customary international law stated above. In this context, the
question just mentioned, whether the genocide at Srebrenica would have
taken place even if the Respondent had attempted to prevent it by
employing all means in its possession, becomes directly relevant, for the
definition of the extent of the obligation of reparation borne by the
Respondent as a result of its wrongful conduct. The question is whether
there is a sufficiently direct and certain causal nexus between the wrong-
ful act, the Respondent’s breach of the obligation to prevent genocide,
and the injury suffered by the Applicant, consisting of all damage of any
type, material or moral, caused by the acts of genocide. Such a nexus
could be considered established only if the Court were able to conclude
from the case as a whole and with a sufficient degree of certainty that the
genocide at Srebrenica would in fact have been averted if the Respondent
had acted in compliance with its legal obligations. However, the Court
clearly cannot do so. As noted above, the Respondent did have signifi-
cant means of influencing the Bosnian Serb military and political authori-
ties which it could, and therefore should, have employed in an attempt to
prevent the atrocities, but it has not been shown that, in the specific con-
text of these events, those means would have sufficed to achieve the result
which the Respondent should have sought. Since the Court cannot there-
fore regard as proven a causal nexus between the Respondent’s violation
of its obligation of prevention and the damage resulting from the geno-
cide at Srebrenica, financial compensation is not the appropriate form of
reparation for the breach of the obligation to prevent genocide.

   463. It is however clear that the Applicant is entitled to reparation in
the form of satisfaction, and this may take the most appropriate form, as
the Applicant itself suggested, of a declaration in the present Judgment
that the Respondent has failed to comply with the obligation imposed by
the Convention to prevent the crime of genocide. As in the Corfu Chan-
nel (United Kingdom v. Albania) case, the Court considers that a decla-
ration of this kind is “in itself appropriate satisfaction” (Merits, Judg-
ment, I.C.J. Reports 1949, pp. 35, 36), and it will, as in that case, include
such a declaration in the operative clause of the present Judgment. The
Applicant acknowledges that this failure is no longer continuing, and
accordingly has withdrawn the request made in the Reply that the Court
declare that the Respondent “has violated and is violating the Conven-
tion” (emphasis added).

   464. The Court now turns to the question of the appropriate repara-
tion for the breach by the Respondent of its obligation under the Con-
vention to punish acts of genocide ; in this respect, the Applicant asserts
the existence of a continuing breach, and therefore maintains (inter alia)
its request for a declaration in that sense. As noted above (paragraph 440),
the Applicant includes under this heading the failure “to transfer indi-
viduals accused of genocide or any other act prohibited by the Conven-

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235         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

tion to the International Criminal Tribunal for the former Yugoslavia
and to fully co-operate with this Tribunal” ; and the Court has found that
in that respect the Respondent is indeed in breach of Article VI of the
Convention (paragraph 449 above). A declaration to that effect is there-
fore one appropriate form of satisfaction, in the same way as in relation
to the breach of the obligation to prevent genocide. However, the Appli-
cant asks the Court in this respect to decide more specifically that

        “Serbia and Montenegro shall immediately take effective steps to
      ensure full compliance with its obligation to punish acts of genocide
      under the Convention on the Prevention and Punishment of the
      Crime of Genocide or any other act prohibited by the Convention
      and to transfer individuals accused of genocide or any other act pro-
      hibited by the Convention to the International Criminal Tribunal for
      the former Yugoslavia and to fully co-operate with this Tribunal.”
   465. It will be clear from the Court’s findings above on the question of
the obligation to punish under the Convention that it is satisfied that the
Respondent has outstanding obligations as regards the transfer to the
ICTY of persons accused of genocide, in order to comply with its obli-
gations under Articles I and VI of the Genocide Convention, in particu-
lar in respect of General Ratko Mladić (paragraph 448). The Court will
therefore make a declaration in these terms in the operative clause of the
present Judgment, which will in its view constitute appropriate satisfac-
tion.
   466. In its final submissions, the Applicant also requests the Court to
decide “that Serbia and Montenegro shall provide specific guarantees
and assurances that it will not repeat the wrongful acts complained of,
the form of which guarantees and assurances is to be determined by the
Court”. As presented, this submission relates to all the wrongful acts, i.e.
breaches of the Genocide Convention, attributed by the Applicant to the
Respondent, thus including alleged breaches of the Respondent’s obliga-
tion not itself to commit genocide, as well as the ancillary obligations
under the Convention concerning complicity, conspiracy and incitement.
Insofar as the Court has not upheld these claims, the submission falls.
There remains however the question whether it is appropriate to direct
that the Respondent provide guarantees and assurances of non-repetition
in relation to the established breaches of the obligations to prevent and
punish genocide. The Court notes the reasons advanced by counsel for
the Applicant at the hearings in support of the submission, which relate
for the most part to “recent events [which] cannot fail to cause concern as
to whether movements in Serbia and Montenegro calling for genocide
have disappeared”. It considers that these indications do not constitute
sufficient grounds for requiring guarantees of non-repetition. The Appli-
cant also referred in this connection to the question of non-compliance
with provisional measures, but this matter has already been examined
above (paragraphs 451 to 458), and will be mentioned further below. In

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236         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

the circumstances, the Court considers that the declaration referred to in
paragraph 465 above is sufficient as regards the Respondent’s continuing
duty of punishment, and therefore does not consider that this is a case in
which a direction for guarantees of non-repetition would be appropriate.

  467. Finally, the Applicant has presented the following submission :
         “That in failing to comply with the Orders for indication of
      provisional measures rendered by the Court on 8 April 1993 and
      13 September 1993 Serbia and Montenegro has been in breach of its
      international obligations and is under an obligation to Bosnia
      and Herzegovina to provide for the latter violation symbolic compen-
      sation, the amount of which is to be determined by the Court.”
The provisional measures indicated by the Court’s Order of 8 April 1993,
and reiterated by the Order of 13 September 1993, were addressed spe-
cifically to the Respondent’s obligation “to prevent commission of the
crime of genocide” and to certain measures which should “in particular”
be taken to that end (I.C.J. Reports 1993, p. 24, para. 52 (A) (1) and (2)).

  468. Provisional measures under Article 41 of the Statute are indicated
“pending [the] final decision” in the case, and the measures indicated in
1993 will thus lapse on the delivery of the present Judgment (cf. Anglo-
Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objections, Judg-
ment, I.C.J. Reports 1952, p. 114 ; Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America), Juris-
diction and Admissibility, Judgment, I.C.J. Reports 1984, p. 442,
para. 112). However, as already observed (paragraph 452 above), orders
made by the Court indicating provisional measures under Article 41 of
the Statute have binding effect, and their purpose is to protect the rights
of either party, pending the final decision in the case.

   469. The Court has found above (paragraph 456) that, in respect of
the massacres at Srebrenica in July 1995, the Respondent failed to take
measures which would have satisfied the requirements of para-
graphs 52 (A) (1) and (2) of the Court’s Order of 8 April 1993 (reaffirmed
in the Order of 13 September 1993). The Court however considers that,
for purposes of reparation, the Respondent’s non-compliance with the
provisional measures ordered is an aspect of, or merges with, its breaches
of the substantive obligations of prevention and punishment laid upon it
by the Convention. The Court does not therefore find it appropriate to
give effect to the Applicant’s request for an order for symbolic compensa-
tion in this respect. The Court will however include in the operative
clause of the present Judgment, by way of satisfaction, a declaration that
the Respondent has failed to comply with the Court’s Orders indicating
provisional measures.

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237        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  470. The Court further notes that one of the provisional measures
indicated in the Order of 8 April and reaffirmed in that of 13 Septem-
ber 1993 was addressed to both Parties. The Court’s findings in para-
graphs 456 to 457 and 469 are without prejudice to the question whether
the Applicant did not also fail to comply with the Orders indicating
provisional measures.

                                   * * *
                         XII. OPERATIVE CLAUSE

  471. For these reasons,
  THE COURT,
  (1) by ten votes to five,
  Rejects the objections contained in the final submissions made by the
Respondent to the effect that the Court has no jurisdiction ; and affirms
that it has jurisdiction, on the basis of Article IX of the Convention on
the Prevention and Punishment of the Crime of Genocide, to adjudicate
upon the dispute brought before it on 20 March 1993 by the Republic of
Bosnia and Herzegovina ;
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Owada,
    Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna ; Judge ad
    hoc Mahiou ;
  AGAINST : Judges Ranjeva, Shi, Koroma, Skotnikov ; Judge ad hoc Kreća ;

  (2) by thirteen votes to two,
   Finds that Serbia has not committed genocide, through its organs or
persons whose acts engage its responsibility under customary interna-
tional law, in violation of its obligations under the Convention on the
Prevention and Punishment of the Crime of Genocide ;

  IN FAVOUR : President Higgins ; Judges Ranjeva, Shi, Koroma, Owada, Simma,
    Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov ; Judge
    ad hoc Kreća ;
  AGAINST : Vice-President Al-Khasawneh ; Judge ad hoc Mahiou ;

  (3) by thirteen votes to two,
  Finds that Serbia has not conspired to commit genocide, nor incited
the commission of genocide, in violation of its obligations under the Con-
vention on the Prevention and Punishment of the Crime of Genocide ;

  IN FAVOUR : President Higgins ; Judges Ranjeva, Shi, Koroma, Owada, Simma,
    Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov ; Judge
    ad hoc Kreća ;
  AGAINST : Vice-President Al-Khasawneh ; Judge ad hoc Mahiou ;

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238         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  (4) by eleven votes to four,
  Finds that Serbia has not been complicit in genocide, in violation of its
obligations under the Convention on the Prevention and Punishment of
the Crime of Genocide ;
  IN FAVOUR : President Higgins ; Judges Ranjeva, Shi, Koroma, Owada, Simma,
      Tomka, Abraham, Sepúlveda-Amor, Skotnikov ; Judge ad hoc Kreća ;

  AGAINST : Vice-President Al-Khasawneh ; Judges Keith, Bennouna ; Judge ad
      hoc Mahiou ;
  (5) by twelve votes to three,
   Finds that Serbia has violated the obligation to prevent genocide,
under the Convention on the Prevention and Punishment of the Crime
of Genocide, in respect of the genocide that occurred in Srebrenica
in July 1995 ;
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Ran-
    jeva, Shi, Koroma, Owada, Simma, Abraham, Keith, Sepúlveda-Amor,
    Bennouna ; Judge ad hoc Mahiou ;
  AGAINST : Judges Tomka, Skotnikov ; Judge ad hoc Kreća ;

  (6) by fourteen votes to one,
   Finds that Serbia has violated its obligations under the Convention on
the Prevention and Punishment of the Crime of Genocide by having
failed to transfer Ratko Mladić, indicted for genocide and complicity in
genocide, for trial by the International Criminal Tribunal for the former
Yugoslavia, and thus having failed fully to co-operate with that Tribu-
nal ;
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Ran-
    jeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-
    Amor, Bennouna, Skotnikov ; Judge ad hoc Mahiou ;
  AGAINST : Judge ad hoc Kreća ;

  (7) by thirteen votes to two,
   Finds that Serbia has violated its obligation to comply with the provi-
sional measures ordered by the Court on 8 April and 13 September 1993
in this case, inasmuch as it failed to take all measures within its power to
prevent genocide in Srebrenica in July 1995 ;

  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Ran-
    jeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-
    Amor, Bennouna ; Judge ad hoc Mahiou ;
  AGAINST : Judge Skotnikov ; Judge ad hoc Kreća ;

  (8) by fourteen votes to one,
  Decides that Serbia shall immediately take effective steps to ensure full
compliance with its obligation under the Convention on the Prevention

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239        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

and Punishment of the Crime of Genocide to punish acts of genocide as
defined by Article II of the Convention, or any of the other acts pro-
scribed by Article III of the Convention, and to transfer individuals
accused of genocide or any of those other acts for trial by the Interna-
tional Criminal Tribunal for the former Yugoslavia, and to co-operate
fully with that Tribunal ;
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Ran-
    jeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-
    Amor, Bennouna, Skotnikov ; Judge ad hoc Mahiou ;
  AGAINST : Judge ad hoc Kreća ;

  (9) by thirteen votes to two,
   Finds that, as regards the breaches by Serbia of the obligations referred
to in subparagraphs (5) and (7) above, the Court’s findings in those para-
graphs constitute appropriate satisfaction, and that the case is not one in
which an order for payment of compensation, or, in respect of the viola-
tion referred to in subparagraph (5), a direction to provide assurances
and guarantees of non-repetition, would be appropriate.
  IN FAVOUR : President Higgins ; Judges Ranjeva, Shi, Koroma, Owada, Simma,
    Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov ; Judge
    ad hoc Kreća ;
  AGAINST : Vice-President Al-Khasawneh ; Judge ad hoc Mahiou.

   Done in English and in French, the English text being authoritative,
at the Peace Palace, The Hague, this twenty-sixth day of February,
two thousand and seven, in three copies, one of which will be placed
in the archives of the Court and the others transmitted to the Govern-
ment of Bosnia and Herzegovina and the Government of Serbia, respec-
tively.

                                          (Signed) Rosalyn HIGGINS,
                                                      President.
                                         (Signed) Philippe COUVREUR,
                                                       Registrar.

   Vice-President AL-KHASAWNEH appends a dissenting opinion to the
Judgment of the Court ; Judges RANJEVA, SHI and KOROMA append a
joint dissenting opinion to the Judgment of the Court ; Judge RANJEVA
appends a separate opinion to the Judgment of the Court ; Judges SHI
and KOROMA append a joint declaration to the Judgment of the Court ;
Judges OWADA and TOMKA append separate opinions to the Judgment of
the Court ; Judges KEITH, BENNOUNA and SKOTNIKOV append declarations

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240       APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

to the Judgment of the Court ; Judge ad hoc MAHIOU appends a dissent-
ing opinion to the Judgment of the Court ; Judge ad hoc KREC
                                                           uA appends
a separate opinion to the Judgment of the Court.

                                                 (Initialled) R.H.
                                                 (Initialled) Ph.C.

201