549

        SEPARATE OPINION OF JUDGE AD HOC VUKAS

  Capacity of the Respondent — Application of the Genocide Convention —
Jurisdiction of the Court ratione temporis — Existence of Serbia as a State —
Nature of the acts of genocide —Missing Croatian citizens.

   While fully subscribing to the Court’s conclusions in the operative
clause (Judgment, para. 146), I would like to make clear my own reason-
ing that led me to those conclusions.

   1. THE CAPACITY OF THE REPUBLIC OF SERBIA TO PARTICIPATE IN THE
 PROCEEDINGS INSTITUTED BY THE APPLICATION OF THE REPUBLIC OF CROATIA

   1. In respect of the preliminary objection submitted by the Republic of
Serbia concerning its capacity to participate in the proceedings instituted
by the Application of the Republic of Croatia, I will not engage in a dis-
cussion of the various arguments advanced by either the Applicant or the
Respondent. Nor will I take into account the various opinions concern-
ing their legal personality and membership in the United Nations
expressed by the Republic of Croatia and the Federal Republic of Yugo-
slavia (FRY) for political considerations in the first decade following the
dissolution of the Socialist Federal Republic of Yugoslavia (SFRY).
Finally, I will try to avoid an analysis of the various considerations made
by the International Court of Justice (ICJ) in some of the previous cases
heard by the Court.
   2. I base my conclusion that the Respondent possessed the capacity to
participate in the proceedings (on the basis of Article 35, paragraph 1, of
the Statute of the Court, and Article 93, paragraph 1, of the Charter of
the United Nations) on the date of the submission of the Application by
the Republic of Croatia (2 July 1999) on official documents of the United
Nations and the opinions of the competent organs of the world body.

(a) The practical consequence of Security Council resolution 777 of
    19 September 1992 and General Assembly resolution 47/1 of 22 Sep-
    tember 1992 was that the Federal Republic of Yugoslavia (Serbia
    and Montenegro) was not allowed to participate in the work of the
    General Assembly. As the State was not excluded from the activities
    which all the Members of the United Nations have, in the other
    organs of the Organization, the Court spoke of the “sui generis posi-
    tion which the FRY found itself in vis-à-vis the United Nations over

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      the period from 1992 to 2000, or its position in relation to the Stat-
      ute of the Court . . .” (Application for Revision of the Judgment of
      11 July 1996 in the Case concerning Application of the Convention
      on the Prevention and Punishment of the Crime of Genocide (Bos-
      nia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugo-
      slavia v. Bosnia and Herzegovina), Judgment, I.C.J. Reports 2003,
      p. 31, para. 71).
(b) The position of the FRY in relation to the Statute of the ICJ, at the
      time of the filing of Croatia’s Application in the present case is indi-
      cated in the Yearbook of the Court. That is in the list of States
      Members of the United Nations (entitled to appear before the Court
      on the basis of their membership in the Organization), which
      included “Yugoslavia” (I.C.J. Yearbook 1998-1999, No. 53, p. 73).
      This volume of the Yearbook covers the period from 1 August 1998
      to 31 July 1999. As in this period the SFRY no longer existed, fol-
      lowing its dissolution in the years 1991 to 1992, the only State which
      the International Court of Justice could have meant under the name
      “Yugoslavia” was the FRY. Therefore, according to the I.C.J.
      Yearbook, the Republic of Croatia — also a Member of the United
      Nations at that point (from 22 May 1992) — was entitled to insti-
      tute proceedings against the FRY on 2 July 1999.
   3. Finally, if we consult an official document of the United Nations,
published by the United Nations Information Service on 1 June 1993, we
find “Yugoslavia” in the list of “United Nations Member States” (Note
No. 27/Rev.1).

                   2. JURISDICTION RATIONAE MATERIAE
(a) Both Parties in this case, the Applicant and the Respondent, were
      parties to the Genocide Convention, without any reservation to its
      provisions, on 2 July 1999 — the date when the Government of the
      Republic of Croatia filed the Application against the Federal Repub-
      lic of Yugoslavia in respect of a dispute concerning alleged viola-
      tions of the Convention on the Prevention and Punishment of the
      Crime of Genocide (hereinafter : “the Genocide Convention”).
(b) The SFRY was a party to the Genocide Convention from its entry
      into force on 12 January 1951, as it signed the Convention on
      11 December 1948, and deposited its instrument of ratification on
      29 August 1950 (Human Rights, Status of International Instru-
      ments, United Nations doc. ST/HR/8, 1987, p. 178).
   4. As a result of the process of disintegration of the SFRY, the Repub-
lic of Croatia became an independent State on 8 October 1991. Although
generally willing to maintain the international obligations and rights of
the former Federation, and to assume responsibility for international
relations with respect to the territory of Croatia, it decided to take indi-
vidual decisions on its succession in respect of each particular treaty con-

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cluded by the SFRY. In view of this, on 12 October 1992 Croatia notified
the Secretary-General of the United Nations (depositary of the Genocide
Convention) of its decision to act as a successor concerning the ratifica-
tion of the SFRY (without any reservation) in respect of the Genocide
Convention. However, in the notification to the Secretary-General, it was
stated that, in conformity with international practice, Croatia’s succession
should take effect from 8 October 1991 — the date of its independence
when it assumed responsibility for its international relations (http://
treaties.un.org/pages/showActionDetails.aspx?objid=0800000280028171).
The succession of the Republic of Croatia in respect of the Genocide Con-
vention has in no way been contested or limited since the notification of
its succession.
(c) In the course of the dissolution of the SFRY, two Republics, which
    had been members of the former Federation — Montenegro and
    Serbia — united in the Federal Republic of Yugoslavia on 27 April
    1992 and wanted to be considered as continuing “the State, interna-
    tional legal and political personality of the Socialist Federal Repub-
    lic of Yugoslavia” (United Nations, doc. A/46/915, Ann. II, para. 1).
    The contents of this declaration by the competent body of the FRY
    (the National Assembly of the Republic of Serbia and the Assembly
    of the Republic of Montenegro) were officially stated in the Note of
    27 April 1992 from the Permanent Mission of Yugoslavia to the Sec-
    retary-General of the United Nations (depositary of the Genocide
    Convention) :

         “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.)

  5. The above-mentioned declaration and Note thus confirm that the
FRY became a party to the Genocide Convention as a successor of the
SFRY. It became a party without any reservation, just like the SFRY,
and that was its status in respect of the Convention on 2 July 1999, the
date when Croatia filed its Application instituting proceedings.
  6. All the subsequent acts of the FRY in respect of the Genocide
Convention in 2001 (rejection of the effects of the 1992 declaration, new
notification of accession, including the reservation in respect of
Article IX of the Convention) cannot have any effect in respect of
the jurisdiction ratione materiae of the Court in relation to the FRY in
the present case.

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552      APPLICATION OF GENOCIDE CONVENTION (SEP. OP. VUKAS)

3. PRELIMINARY OBJECTION TO THE JURISDICTION OF THE COURT AND TO
                ADMISSIBILITY RATIONE TEMPORIS

(a) The first reason advanced by Serbia concerning the limitation of the
      jurisdiction of the Court ratione temporis is based on application of
      the Genocide Convention between the FRY and Croatia. According
      to counsel for Serbia, the earliest possible point in time at which the
      Convention could be found to have entered into force between the
      FRY and Croatia was 27 April 1992 [CR 2008/9, p. 13 (Zimmer-
      mann)].
   7. However, application of the Genocide Convention to the Respond-
ent before 27 April 1992 is not governed by the declaration of the FRY
of its succession in respect of the ratification of the Convention by the
SFRY on the one hand, and the notification of succession by the Repub-
lic of Croatia on the other, and the relation between these rather new
parties to the Genocide Convention.
   8. The Convention had to be applied by Croatia, as well as by Mon-
tenegro and Serbia, long before 27 April 1992, as its contents became a
part of Yugoslav municipal law back in 1951. Article 210, paragraph 2,
of the 1974 Constitution of the SFRY provided that “[i]nternational trea-
ties which have been promulgated shall be directly applied by the courts
of law” (The Constitution of the Socialist Federal Republic of Yugoslavia,
Jugoslovenski pregled, Belgrade, 1989, p. 107). Therefore, violation of the
Convention by all natural and legal persons in Yugoslavia, all organs of
the State and federal units of Yugoslavia (Bosnia and Herzegovina,
Croatia, Macedonia, Montenegro, Serbia and Slovenia) was prohibited.

   9. Since the dissolution of the Federal Republic of Yugoslavia in 2006,
it has become even clearer that the Respondent is in fact the same subject
as the Socialist Republic of Serbia in the SFR of Yugoslavia. Given the
circumstances of the dissolution of the FRY, Croatia confirmed that the
proceedings it instituted on 2 July 1999 were “maintained against [the]
Republic of Serbia as Respondent”. However, the Agent of Croatia
noted that this conclusion was “without prejudice to the political respon-
sibility of [the] Republic of Montenegro and the possibility of instituting
separate proceedings against it” (letter dated 15 May 2008 by the Agent
of Croatia ; Judgment, para. 30).

(b) The second reason for objecting to the jurisdiction of the Court and
    to the admissibility ratione temporis, is the opinion of Serbia that
    “the Genocide Convention including the jurisdictional clause con-
    tained in its Article IX cannot be applied with regard to acts that
    occurred before Serbia came into existence as a State”, and could
    thus not have become binding upon it before 27 April 1992
    [CR 2008/9, pp. 13-14 (Zimmermann)].

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  10. In respect of this objection of Serbia, I have two remarks. The first
concerns the date when Serbia came into existence as a State, and the
second deals with the nature of the relevant acts, and the time when they
occurred.
(b) (i) 27 April 1992 is not the date when “Serbia came into existence as
        a State”. It is the date when two former Yugoslav Republics —
        Montenegro and Serbia — formally established the State called
        “The Federal Republic of Yugoslavia”. But Serbia was a State
        long before that date.
   11. As mentioned previously, Serbia was one of the Yugoslav Repub-
lics. Although the six Republics were called “states” in the Federal Con-
stitution of the SFRY (Art. 3), they were federal units forming the Yugo-
slav Federation. However, the situation changed in the 1990s. As stated
in paragraph 43 of the present Judgment “[I]n the early 1990s the
SFRY . . . began to disintegrate”. The reason for this was not only the
variety of concepts concerning the future of Yugoslavia, but more par-
ticularly the use of force against two of its component units — Slovenia
and Croatia. As a consequence thereof, Croatia and Slovenia declared
independence on 25 June 1991, followed by Macedonia on 17 September
1991, and Bosnia and Herzegovina on 19 October 1991. Taking into
account these events, the Arbitration Commission — an expert body of
the Conference on Yugoslavia (convened by the European Commu-
nity) — on 29 November 1991 concluded “that the Socialist Federal
Republic of Yugoslavia is in the process of dissolution” (Opinion No. 1,
adopted on 29 November 1991 and made public on 7 December 1991 ;
International Legal Materials, Vol. 31, (1992) p. 1497).

   12. The conclusion on the “process of dissolution” of the SFRY by the
Arbitration Commission was based on the opinion that “the essential
organs of the Federation . . . no longer meet the criteria of participation
and representativeness inherent in a Federal State” and on the fact that
“the recourse to force has led to armed conflict between the different ele-
ments of the Federation which has caused the death of thousands of
people . . .” (ibid., pp. 1496-1497).
   13. Taking into account the decision of four former Yugoslav Repub-
lics to proclaim and defend their independence, the European Commu-
nity decided to play an active role in respect of the recognition of new
States on the territory of the dissolving SFRY. On 16 December 1991,
the Council of the European Communities adopted two instruments con-
taining guidelines/conditions for the recognition of new States in Eastern
Europe : the declaration on “Guidelines on the Recognition of the New
States in Eastern Europe and the Soviet Union” and the declaration on
Yugoslavia (ibid., pp. 1485-1487). Four Republics, which had been mem-
bers of the SFRY, asked the member States of the European Community
to recognize them as independent States : Bosnia and Herzegovina,

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Croatia, Macedonia and Slovenia met the necessary conditions for their
recognition, contained in the two above-mentioned instruments. The
consequence of that opinion was the recognition of those former Yugo-
slav Republics as independent States by the European States as of mid-
January 1992, followed by recognition by States in all other regions.

   14. Only in respect of Bosnia and Herzegovina was the Commission of
the opinion that the will of the peoples of that Republic to constitute the
Republic of Bosnia and Herzegovina as a sovereign and independent
State should be clarified, possibly by means of a referendum. The pro-
posed referendum was held on 29 February 1992 and 1 March 1992 and
contributed to the beginning of the war in Bosnia and Herzegovina.
   15. Two Republics of the former SFRY — Montenegro and Serbia —
did not initiate the procedure established by the European Community
for their recognition as independent States. The desire of these two
Republics was to be considered as continuing “the state, international
legal and political personality of the Socialist Federal Republic of Yugo-
slavia” (United Nations doc. A/46/915, Ann. II).

   16. However, the political decision of Serbia not to proclaim inde-
pendence, and not to request recognition by the European Community,
does not mean that in the meantime it did not possess the characteristics
of a sovereign State. For the purpose of this text, I will not analyse the
extent to which the Government of Serbia (headed by Slobodan Milo-
šević) controlled the remaining organs of the SFRY and its army, but there
is no doubt that there was no power limiting the sovereign leadership of
Serbia in its rule over the population and territory of Serbia. Therefore,
Serbia was a State, which did not seek recognition as such by the inter-
national community for political reasons. As mentioned previously, it
wanted to be considered as continuing the “international legal and politi-
cal personality of the Socialist Federal Republic of Yugoslavia”. In this
venture Serbia was helped by Montenegro, and these two former Yugo-
slav Republics on 27 April 1992 established the Federal Republic of
Yugoslavia (Judgment, para. 99).

   17. In any event, it is necessary to stress that, even in the period before
the establishment of the FRY, Serbia was obliged to prevent and punish
the crime of genocide, as the provisions of the Genocide Convention had
for a long time before the 1990s formed a part of general customary
international law of a peremptory nature (jus cogens).

(b) (ii) Serbia’s principal argument in respect of the lack of jurisdiction
         of the Court ratione temporis is the contention that acts or
         omissions which took place before the FRY came into existence
         (27 April 1992), cannot be attributed to the FRY [Preliminary

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555      APPLICATION OF GENOCIDE CONVENTION (SEP. OP. VUKAS)

         Objections of the Federal Republic of Yugoslavia (PO),
         para. 4.1]. In addition to the facts presented above concerning
         the existence of the Respondent (Serbia) before 27 April 1992,
         the main argument against this contention lies in the nature of
         certain of the “acts and omissions” which are qualified as “geno-
         cide” in the Genocide Convention. That is to say that only some
         of them occur instantaneously ; most are the result of criminal
         activity over a longer time frame. Thus, for example, according
         to Article II (c) of the Genocide Convention, genocide means
         “[d]eliberately inflicting on the group conditions of life calcu-
         lated to bring about its physical destruction in whole or in part”.
         The majority of the acts to be dealt with in the present case took
         place in 1991. However, the suffering of the thousands of per-
         sons who disappeared in various detention facilities continued in
         the following years. The establishment of the FRY on 27 April
         1992 was neither the beginning nor the end of many acts of
         genocide.
(c) Having dealt with the various reasons advanced by Serbia as a pre-
    liminary objection to the jurisdiction of the Court and to admis-
    sibility rationae temporis, I feel obliged to repeat the Court’s com-
    ment that “there is no express provision in the Genocide Convention
    limiting its jurisdiction ratione temporis” (Judgment, para. 123).

 4. PRELIMINARY OBJECTION TO THE ADMISSIBILITY OF CLAIMS RELATING
    TO THE SUBMISSION OF CERTAIN PERSONS TO TRIAL, PROVISION OF
     INFORMATION ON MISSING CROATIAN CITIZENS AND RETURN OF
                        CULTURAL PROPERTY

   18. While I share in the conclusions of the Court in rejecting this pre-
liminary objection, I would like to stress the major importance of one of
the requests by Croatia : the one concerning information on missing
Croatian citizens. Thus, notwithstanding the existing co-operation
between Serbia and Croatia concerning the location and identification of
missing persons, a request from the Court to Serbia to provide all the
information within its purview as to the whereabouts of Croatian citizens
would be an act of great value for the missing persons and the members
of their families.

                                             (Signed) Budislav VUKAS.

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