                     400

                                 SEPARATE OPINION OF JUDGE SEBUTINDE

                        Jurisdiction ratione temporis under Article IX of the Genocide Convention —
                     Disagreement with paragraph (1) of the operative clause — The FRY (Serbia)
                     cannot be bound by the Genocide Convention prior to 27 April 1992, the date when
                     by succession it became a Contracting Party — Disputes under Article IX of the
                     Genocide Convention must relate to the interpretation, application and fulfilment
                     of the Convention by the Contracting Parties and in relation to acts attributable to
                     those States — The SFRY to which the Applicant attributes the acts committed
                     prior to 27 April 1992 is an entity no longer in existence and is no longer a Con‑
                     tracting Party — The responsibility of the FRY (Serbia), as one of the successor
                     States, for acts committed prior to 27 April 1992 before it became a State or party
                     to the Genocide Convention is not a matter within the Court’s jurisdiction ratione
                     temporis under Article IX.
                        Caution required in drawing inference from or according evidential weight to a
                     decision of an international criminal tribunal not to charge an individual with geno‑
                     cide — Under the ICTY Statute, the decision to investigate and prosecute is solely
                     within the Prosecutor’s discretion and prerogative with no obligation to disclose
                     the reasons therefor — Unlike judicial decisions, the prosecutorial decision to
                     include or exclude a particular charge against an individual is an executive one
                     based on available prima facie evidence at the time and involves no general or
                     definitive finding of fact — Prosecutorial discretion is influenced by a wide range
                     of factors not connected to availability of evidence — Consequently, the Court
                     should be cautious in placing any evidential weight on or drawing inference from
                     the ICTY decision not to charge individuals with genocide arising out of the con‑
                     flict in Croatia.

                                                      Introduction

                        1. I concur with the Court’s decision rejecting both Croatia’s claim
                     and Serbia’s counter‑claim, and have in this regard voted in favour of
                     points (2) and (3) of the operative paragraph. However, I have voted
                     against point (1) of the operative paragraph in which the majority
                     “[R]ejects the second jurisdictional objection raised by Serbia and finds
                     that its jurisdiction to entertain Croatia’s claim extends to acts prior to
                     27 April 1992” (para. 524) as I am unable to subscribe either to this find-
                     ing or the reasoning behind it. In my view, and for the reasons contained
                     in this opinion, Serbia’s second preliminary objection to Croatia’s claim
                     should have been upheld.
                        2. A secondary issue on which I disagree with the majority, is one that
                     does not affect the final outcome of the case but one which, nonetheless,

                     401

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                     401 	 application of genocide convention (sep. op. sebutinde)

                     warrants elaboration, namely, the decision of the Court to give evidential
                     weight to or draw an inference from a prosecutorial decision to charge or
                     not to charge individuals for the crime of genocide before the Interna-
                     tional Criminal Tribunal for the former Yugoslavia (ICTY). In cases of
                     this kind (i.e., cases involving allegations of genocide or grave violations
                     of international criminal or humanitarian law that have already been the
                     subject of the processes and decisions of an international criminal court)
                     the International Court of Justice should, in my respectful view, be
                     extremely cautious in giving any kind of weight to or drawing any infer-
                     ence from such a prosecutorial decision, in the absence of reasons for
                     such decision. It is my considered opinion that, in the present Judgment,
                     the inference that the Court draws from the absence of charges of geno-
                     cide in certain ICTY indictments relating to the conflict in Croatia, with-
                     out the Court having established the underlying reasons therefor, is highly
                     speculative and can lead to undesirable conclusions. The contradictory
                     manner in which the Judgment approaches this question only serves to
                     further complicate the issue (see Judgment, paras. 187, 440 and 461).
                     I elaborate my reasons below.

                     I. Serbia’s Objection to the Court’s Jurisdiction Ratione Temporis
                                 and to the Admissibility of Croatia’s Claims

                        3. Serbia’s second preliminary objection to Croatia’s claims as stated
                     in Serbia’s final submission 2 (a) is that, “claims based on acts and omis-
                     sions which took place prior to 27 April 1992 are beyond the jurisdiction
                     of this Court and [are] inadmissible”. According to Serbia, the bulk of the
                     alleged acts of genocide comprising Croatia’s claims (i.e., 112 out of
                     120 alleged acts), took place prior to 27 April 1992, before the FRY (Ser-
                     bia) came into existence. Serbia thus contends that even if the Court were
                     to find that acts pre‑dating 27 April 1992 could be attributed to Serbia,
                     Croatia’s claim based on those acts would still fail for the Court lacking
                     jurisdiction ratione temporis. Croatia rejects this argument in its entirety.

                        4. The Court, in its 2008 Judgment, noted that Serbia’s second pre-
                     liminary objection was an “objection to jurisdiction” on the one hand,
                     and “one going to the admissibility of the claims”, on the other (Applica‑
                     tion of the Convention on the Prevention and Punishment of the Crime of
                     Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Rep
                     orts 2008, p. 456, para. 120 ; emphasis added). Observing that the objec-
                     tion entailed two interrelated issues, the Court stated as follows :
                              “The first issue is that of the Court’s jurisdiction to determine
                           whether breaches of the Genocide Convention were committed in the
                           light of the facts that occurred prior to the date on which the FRY

                     402

7 CIJ1077.indb 800                                                                                18/04/16 08:54

                     402 	 application of genocide convention (sep. op. sebutinde)

                           came into existence as a separate State, capable of being a party in its
                           own right to the Convention ; this may be regarded as a question of
                           the applicability of the obligations under the Genocide Convention
                           to the FRY before 27 April 1992. The second issue, that of admissi-
                           bility of the claim in relation to those facts, and involving questions
                           of attribution, concerns the consequences to be drawn with regard to
                           the responsibility of the FRY for those same facts under the general
                           rules of State responsibility. In order to be in a position to make any
                           findings on each of these issues, the Court will need to have more
                           elements before it.” (I.C.J. Reports 2008, p. 460, para. 129.)
                        5. By a majority vote of eleven to six, the Court considered that Ser-
                     bia’s second preliminary objection “[did] not . . . possess an exclusively
                     preliminary character”, and that in the circumstances the Court could not
                     decide on that objection in limine litis (ibid., p. 466, para. 146). Thus, the
                     Court reserved its decision thereon for the merits stage of the proceed-
                     ings.
                        6. In my view, Serbia’s second objection poses insurmountable obsta-
                     cles to the admissibility of Croatia’s claim relating to acts that allegedly
                     took place before 27 April 1992, i.e., before the FRY or Serbia became a
                     party to the Genocide Convention. Whilst I agree with the Court’s view
                     in the 2008 Judgment that “there is no express provision in the Genocide
                     Convention limiting its jurisdiction ratione temporis” (ibid., p. 458,
                     para. 123), I am of the view that certain findings of the Court in that
                     Judgment, as well as the facts of this case, dictate against the view
                     expressed by the majority in the present Judgment that “its jurisdiction to
                     entertain Croatia’s claim extends to acts prior to 27 April 1992”
                     (para. 524). The following are my reasons.

                       7. First, the Court authoritatively determined in its 2008 Judgment
                     that Serbia had, by way of succession, become a party to the Genocide
                     Convention on 27 April 1992. The Court stated that
                           “from that date onwards the FRY [Serbia] would be bound by the
                           obligations of a party in respect of all the multilateral conventions to
                           which the SFRY had been a party at the time of its dissolution, sub-
                           ject of course, to any reservations lawfully made by the SFRY limit-
                           ing its obligations. It is common ground that the Genocide Convention
                           was one of these conventions, and that the SFRY had made no res-
                           ervation to it ; thus the FRY in 1992 accepted the obligations of that
                           Convention . . . In the events that have occurred, this signifies that
                           the 1992 declaration and Note had the effect of a notification of suc-
                           cession by the FRY to the SFRY in relation to the Genocide Con-
                           vention.” (Application of the Convention on the Prevention and
                           Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary
                           Objections, Judgment, I.C.J. Reports 2008, pp. 454‑455, para. 117 ;
                           emphasis added.)

                     403

7 CIJ1077.indb 802                                                                                18/04/16 08:54

                     403 	 application of genocide convention (sep. op. sebutinde)

                         8. The Court’s conclusion in 2008 implies that with effect from
                      27 April 1992, the FRY (Serbia) took on a separate identity, distinct from
                      that of its predecessor (the SFRY), the latter having ceased to exist imme-
                     diately before that date. The Court recognized the fact that Serbia’s claim
                     of continuity as originally formulated in the 27 April 1992 declaration
                     had been rejected by the international community which insisted that
                     Serbia could not continue the membership of the former Yugoslavia at
                      the United Nations but had to apply for fresh membership in its own
                      right as required by Security Council resolution 777 (1992) and General
                      Assembly resolution 47/1. It was after Serbia complied with this require-
                     ment that the new State was admitted to the United Nations on 1 Novem-
                     ber 2000.

                        9. In light of this finding alone, the notion that the FRY (Serbia) could
                     conceivably assume responsibility for the wrongful acts of its predecessor
                     State (SFRY), seems untenable. That notion seems even more untenable
                     when one considers that in the Agreement on Succession Issues concluded
                     by the former Yugoslav Republics of Croatia, Slovenia, Bosnia and Her-
                     zegovina and Macedonia on 29 June 2001 and accepted by Serbia and
                     Montenegro, all the five Republics consider themselves as “being in sov-
                     ereign equality [as] successor States to the former Socialist Federal
                     Republic of Yugoslavia”.
                        10. Secondly, it must be recalled that Croatia’s claim is solely based on
                     treaty law and that the jurisdiction of this Court is founded on consent of
                     States parties. In the present case, Serbia recognized the jurisdiction of
                     the Court under the Genocide Convention with effect from the date it
                     became a party to that Convention and not before (see Application of the
                     Convention on the Prevention and Punishment of the Crime of Genocide
                     (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Rep-
                     orts 2008, p. 455, para. 117). Thus, although Article IX of the Genocide
                     Convention (the compromissory provision from which the Court in this
                     case derives its jurisdiction) contains no limitations ratione temporis, there
                     is nothing in the Convention to suggest an intention to give it retroactive
                     effect. Moreover, that provision must be construed in light of the whole
                     Convention and in conformity with the Vienna Convention on the Law
                     of Treaties, 1969 (VCLT), the Vienna Convention on Succession of States
                     in Respect of Treaties, 1978 (VCSSRT), and the ILC Draft Articles on
                     Responsibility of States for Internationally Wrongful Acts (2001) (“ILC
                     Articles”). Article 28 of the VCLT provides that :

                              “Unless a different intention appears from the treaty or is otherwise
                           established, its provisions do not bind a party in relation to any act
                           or fact which took place or any situation which ceased to exist before
                           the date of the entry into force of the treaty with respect to that party.”
                           (Emphasis added.)

                     404

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                     404 	 application of genocide convention (sep. op. sebutinde)

                        11. Similarly, Article 23 of the VCSSRT which deals with the effects of
                     a notification of succession such as the one contained in Serbia’s declara-
                     tion provides that :

                             “(1) Unless the treaty otherwise provides or it is otherwise agreed,
                           a newly independent State which makes a notification of succession
                           under Article 17 or Article 18, paragraph 2, shall be considered a
                           party to the treaty from the date of the succession of States or from
                           the date of entry into force of the treaty, whichever is the later date.”
                           (Emphasis added.)

                        12. Furthermore, Article 13 of the ILC Articles provides that “[a]n act
                     of a State does not constitute a breach of an international obligation
                     unless the State is bound by the obligation in question at the time the act
                     occurs”.
                        13. Applying the above principles to the Genocide Convention, it is
                     clear that the Court’s jurisdiction under Article IX extends only to acts
                     that occurred subsequent to the entry into force of the Convention as
                     between the parties. This view is supported by recent jurisprudence of the
                     Court, for example in Georgia v. Russian Federation and in Belgium v.
                     Senegal. In my view, by concluding that the Court’s jurisdiction to enter-
                     tain Croatia’s claim “extends to acts prior to 27 April 1992” (Judgment,
                     para. 524), the majority of the Court accorded to Article IX of the Con-
                     vention a retroactive construction ; one not supported by the above cardi-
                     nal principles. I am also not persuaded by the reasoning given in the
                     present Judgment in support of such a conclusion. That construction in
                     effect presupposes that the Court has jurisdiction to deal with issues of
                     State succession to obligations of the SFRY which may have arisen as a
                     consequence of breaches of the Convention when the SFRY was still in
                     existence ; which issues may have been relevant if the Court had in 2008
                     deemed Serbia to be a continuator of the SFRY rather than a successor
                     State.
                        14. The Judgment correctly analyses the provisions of the Genocide
                     Convention in paragraphs 90 to 99 in light of its travaux préparatoires
                     and the Court’s jurisprudence, before concluding that its substantive pro-
                     visions “do not impose upon a State obligations in relation to acts said to
                     have occurred before that State became bound by the Convention” (ibid.,
                     para. 100). In light of such an unequivocal conclusion, I find untenable
                     the position that the majority adopts thereafter, finding that

                           “to the extent that the dispute concerns acts said to have occurred
                           before [27 April 1992] [i.e., before Serbia became a party to the Con-
                           vention], it also falls within the scope of Article IX and that the Court
                           therefore has jurisdiction to rule upon the entirety of Croatia’s claim”
                           (ibid., para. 117).

                     405

7 CIJ1077.indb 806                                                                                18/04/16 08:54

                     405 	 application of genocide convention (sep. op. sebutinde)

                        15. The majority view is premised upon two grounds : first, that the
                     dispute between the Parties concerns “the interpretation, application and
                     fulfilment of the provisions of the Genocide Convention”, including “the
                     responsibility of a State for genocide” as required by Article IX. The sec-
                     ond ground is that the question whether or not the acts complained of by
                     Croatia were contrary to the Genocide Convention and if so, whether
                     they were attributable to and thus engaged the responsibility of the
                     SFRY, “are matters falling squarely within the scope ratione materiae of
                     the jurisdiction provided for by Article IX” (Judgment, para. 113). In my
                     view, both grounds are irrelevant in assessing the Court’s jurisdiction
                     ratione temporis under Article IX of the Convention. First, the dispute
                     referred to in Article IX must be between Contracting Parties, in this
                     case, Serbia and Croatia. The SFRY, to which Croatia attributes the acts
                     complained of, is no longer in existence and is no longer a Contracting
                     Party. Secondly, the dispute envisaged under that Article must concern
                     the interpretation, application and fulfilment of the Convention by the
                     Contracting Parties. In the present case, it should concern Serbia’s
                     responsibility for acts directly attributable to that State as a Contracting
                     Party, and not to the SFRY, a predecessor State. In this regard, the
                     majority reasoning and conclusion introduces subtle issues of State suc-
                     cession to responsibility into Article IX, which interpretation, in my
                     respectful opinion, is not supported by the Convention. For all the above
                     reasons, I disagree with the majority. This brings me to the second point
                     of my separate opinion.

                              II. The Inference to Be Drawn from a Prosecutorial
                                       Decision not to Charge Individuals
                                                  for Genocide

                       16. The probative value to be accorded to various documents emanat-
                     ing from judgments of the International Criminal Tribunal for the former
                     Yugoslavia (ICTY) was discussed by the Court in its 2007 Judgment
                     (Application of the Convention on the Prevention and Punishment of the
                     Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
                     Judgment, I.C.J. Reports 2007 (I), p. 43). While those findings must be
                     read in light of the “broad measure of agreement between the Parties” on
                     this point and the fact that the findings are not res judicata for the present
                     case, Croatia and Serbia have generally accepted them in the present pro-
                     ceedings. In particular, the Court stated regarding charges included or
                     excluded in an indictment, as follows :
                              “The Applicant placed some weight on indictments filed by the
                           [ICTY] 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 Pros-

                     406

7 CIJ1077.indb 808                                                                                18/04/16 08:54

                     406 	 application of genocide convention (sep. op. sebutinde)

                           ecutor 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 Prosecutor, either
                           initially or in an amendment to an indictment, not to include or to
                           exclude a charge of genocide.” (I.C.J. Reports 2007 (I), p. 132,
                           para. 217.)
                        17. The implication of the above statement by the Court, is that the
                     decision of a prosecutor not to include a charge of genocide in an ICTY
                     indictment may assist in disproving the existence of the responsibility of a
                     State for acts of genocide. This is a proposition with which I do not agree.
                     Certainly in the present Judgment, the majority appears, in one part, to
                     have placed some weight on the fact that “the ICTY Prosecutor has never
                     charged any individual on account of genocide [committed] against the
                     Croat population in the context of the armed conflict which took place”
                     (Judgment, para. 440), while, in another passage, the Court states that
                     “[t]he Court did not intend to turn the absence of charges into decisive
                     proof that there had not been genocide, but took the view that this factor
                     may be of significance and would be taken into consideration” (ibid.,
                     para. 187). Apart from the problematic fact that these two passages appear
                     to apply two different evidential standards, my view is that this Court
                     should be cautious in attaching any evidential weight to or drawing infer-
                     ences from such decisions, essentially for the reasons thoroughly explained
                     by Croatia in its oral submissions in this case. Those reasons, with which
                     I agree, relate mainly to the inherently discretionary nature of prosecuto-
                     rial decisions and to the fundamental distinction between individual crimi-
                     nal responsibility for specific crimes under international humanitarian law,
                     on the one hand, and State responsibility for a series of wrongful acts
                     committed by multiple actors, under the Genocide Convention, on the
                     other. For ease of reference those reasons are summarized below.

                                              1. Prosecutorial discretion
                       18. Under Article 16 (1) of the ICTY Statute, responsibility is vested in
                     the ICTY Prosecutor for the investigation and prosecution of crimes. The
                     ICTY Prosecutor, like any other prosecutor, has a wide discretion both in
                     commencing and conducting an investigation, and in relation to the
                     charges to be included in an indictment. In exercising that discretion, the
                     Prosecutor is not obligated to reveal the reasons behind the decisions he
                     or she takes, not even to the Defence. Under Article 18 (1) of the ICTY
                     Statute, the ICTY Prosecutor may initiate investigations ex officio or on
                     the basis of information from any source. It is for the Prosecutor to access
                     the available evidence and decide whether there is a sufficient (prima
                     facie) basis to proceed. Thus, from the very outset, it is the available evi-
                     dence at that stage that will influence the investigations and, in turn, influ-
                     ence any prosecutorial decision about the charge. Furthermore, since the

                     407

7 CIJ1077.indb 810                                                                                18/04/16 08:54

                     407 	 application of genocide convention (sep. op. sebutinde)

                     jurisdiction of the ICTY is over individuals, it is also inevitable that any
                     investigation started by the ICTY Prosecutor must focus on the activities
                     of one or more identified individuals. Such an investigation is based on
                     available evidence at the time and involves no general or definitive finding
                     of fact. It is from the outset an investigation into an individual or indi-
                     viduals, intended to ascertain whether there is prima facie evidence to
                     charge them with any offence. In that sense, the investigation will follow
                     a relatively narrow course.

                        19. Furthermore, the discretion of a prosecutor also operates at other
                     levels. For example, it is plain that neither the ICTY Statute nor the
                     ICTY Rules of Procedure and Evidence impose an obligation on the
                     Prosecutor either to investigate or to prosecute. Nor is there an obligation
                     to pursue the most serious charges available on the totality of the evi-
                     dence in any given case. The Prosecutor is free to characterize the con-
                     duct of an accused under any appropriate heading. In international law,
                     the vast majority of crimes are very serious but not all can be pursued.
                     The ICTY, in the Mucić case, emphasized the breadth of prosecutorial
                     discretion as to investigations and indictments and the “finite human and
                     financial resources” available which means that the Prosecutor “cannot
                     realistically be expected to prosecute every offender”. This principle
                     applies equally in respect of the choice of charge. The reality is that a very
                     wide range of factors may influence the discretion to prosecute which can-
                     not have any material significance for the determination of issues before
                     this Court. These include cost, length, manageability, availability of wit-
                     nesses and sometimes availability of the accused. It is not uncommon for
                     a prosecutor to decide not to bring charges against an individual, not
                     because a conclusion has been reached on the basis of the evidence but,
                     much more pragmatically, on the basis that a key witness is unable or
                     unwilling to provide the necessary evidence, either at all, or on conditions
                     acceptable to the Court. No sensible inference about the commission of a
                     crime can be drawn from that set of circumstances.

                                      2. The Prosecutor’s prerogative to charge
                        20. Secondly, unlike the position in some domestic jurisdictions, the
                     ICTY Prosecutor is under no obligation to give reasons for decisions
                     whether or not to charge particular persons or particular crimes ; and as
                     a matter of fact, the ICTY Prosecutor has not done so in any case rele-
                     vant to the issues before this Court. There is therefore simply no way
                     of telling whether the Prosecutor reached a considered evaluation that
                     particular events did not amount to the crime of genocide or, alterna-
                     tively, whether charges were not brought for some other wholly unrelated

                     408

7 CIJ1077.indb 812                                                                                18/04/16 08:54

                     408 	 application of genocide convention (sep. op. sebutinde)

                     reason. In that regard, the evidential significance of such a decision
                     should be minimal, since the Prosecutor’s decisions are not judicial but
                     executive in status, and involve no definitive finding of fact.

                                 3. Distinguishing individual criminal responsibility
                                              and State responsibility
                        21. Lastly, a decision to prosecute an individual may well be made for
                     reasons wholly unconnected to the question of State responsibility for
                     violation of the Genocide Convention. More fundamentally than that,
                     the ICTY and this Court are asked to address entirely different legal
                     questions ; the answers to which should not be determinative of each
                     other. The ICTY is concerned with individual responsibility for particular
                     crimes, not State responsibility for an accumulation of crimes. The
                     ICTY’s scope of inquiry is limited to the operations of one accused in
                     relation to each charge. That represents a small segment or puzzle‑piece
                     in the much larger picture that this Court is asked to consider, namely,
                     the cumulative impact on a protected group of a series of crimes, system-
                     atically perpetrated on a large section of the population, over a wide geo-
                     graphical area, by a large number of perpetrators, some or all of whom
                     cannot be identified and brought to justice before the ICTY for their part
                     in events. This Court is able to, and must, take a global view of all the
                     evidence, including findings already made by the ICTY. It also has before
                     it, and is able to rule on, additional evidence that was not the subject of
                     charges before the ICTY. For example, the total destruction of the city of
                     Vukovar and its civilian population was not charged in the Mrkšić indict-
                     ment ; nor were the killings and torture at Velepromet. Also before this
                     Court are findings of genocidal forcible displacement by the Croatian
                     national courts in cases such as Koprivna and Velimir, along with convic-
                     tions by the Belgrade District Court War Crimes Chamber of Serbian
                     perpetrators of atrocities in Croatia. This Court is in a far better position
                     than the ICTY Prosecutor, and indeed the ICTY itself, to assess whether
                     the totality of the crimes committed amounted to genocide. In conclu-
                     sion, the International Court of Justice should, in my respectful view, be
                     extremely cautious in giving any kind of weight to a prosecutorial deci-
                     sion to charge or not charge a particular individual for a particular crime
                     or crimes, in the absence of reasons for such a decision.

                                                                  (Signed) Julia Sebutinde.

                     409

7 CIJ1077.indb 814                                                                                18/04/16 08:54


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A L’APPLICATION
DE LA CONVENTION POUR LA PREVENTION
ET LA REPRESSION DU CRIME DE GENOCIDE

(BOSNIE-HERZEGOVINE
c. YOUGOSLAVIE {SERBIE ET MONTENEGRO))

ORDONNANCE DU 21 MARS 1995

1995

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. YUGOSLAVIA (SERBIA AND MONTENEGRO))

ORDER OF 21 MARCH 1995
Mode officiel de citation:

Application de la convention pour fa prévention et la répression
du crime de génocide, urdennance du 21 mars 1995
CET. Recucil 1995, p. 80

Official citation :

Application of the Convention on the Prevention and Punishment
of the Crime of Genocide, Order of 21 March 1995,
LC. Reports 1995, p. 80

| M° de vente:
ISSN 0074-4441 | Sales number 658
ISBN 92-1-070721-5 |

80

INTERNATIONAL COURT OF JUSTICE

YEAR 1995 1995
2: March
Gereral List
21 March 1995 No. 9:

CASE CONCERNING APPLICATION OF
THE CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE

(BOSNIA AND HERZEGOVINA
t. YUGOSLAVIA (SERBIA AND MONTENEGRO})

ORDER

The President of the International Court of Justice,

Having regard to Article 48 of the Statute of the Court and to
Article 44, paragraphs 3 and 4, of the Rules of Court,

Having regard to the Order made by the President of the Court on
16 April 1993, whereby he fixed 15 October 1993 as the time-limit for the
fiing of the Memorial of Bosnia and Herzegovina and 15 April 1994 as
that for the filme of the Counter-Memorial of Yugoslavia (Serbia and
Monicnegro},

Having regard to the Order made by the Vice-President of the Court
on 7 October 1993, whereby he extended to 15 April 1994 the time-limit
for ihe filing of the Memorial of Bosnia and Herzegovina and extended
to 15 April 1995 the time-limit for the filhng of the Counter-Mcmorial of
Yugoslavia (Serbia and Montenegro};

Whereas the Memorial of Bosnia and Herzegovina was duly filed
within the extended time-limit;

Whereas the Agent of the Respondent, by a letter with Annex dated
9 February 1995, received by facsimile in the Registry on the same day,
requested the Court, for reasons stated in that letter, to extend until
15 November 1995 the time-limit for the fling of the Counter-Memorial

4
APPLICATION OF GENOCIDE CONVENTION {ORDER 21 IIT 95) 81

of his Government; and whereas the Registrar immediately transmitted a
copy of that letier and of its Annex to the Agent of the Apphcant;

Whereas (he Agent of the Applicant, by a letter dated 8 March 1995,
received by facsimile in the Registry on ihe same day, let it be known that
his Government considered, for reasons stated in that leiter, thai the
Court ought not 10 grant the request for an extension of the time-limit as
submitted by Yugoslavia (Serbia and Montenegro),

Extends to 30 June 1995 the time-limit for the filing of the Counter-
Memorial of the Government of the Federal Republic of Yugoslavia
(Serbia and Montenegro); and

Reserves the subsequent procedure for further decision.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Tague, this twenty-first day of March, one thousand
nine hundred and ninety-five, in three copies, one of which will be placed
in the archives of the Court and the others transmitted to the Government
of the Republic of Bosnia and Herzegovina and the Government of the
Federal Republic of Yugoslavia (Serbia and Montenegro), respectively.

‘Signed; Mohamme AAO,
(Signed; Mol d Bran
President.

‘Signed; Eduardo VALUNCIA-OSPINA,
Registrar,

wn


INTERNATIONAL COURT OF JUSTICE

YEAR 2001
2001
30 January
General List
No. 117
30 January 2001

CASE CONCERNING ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO

(DEMOCRATIC REPUBLIC OF THE CONGO r. RWANDA)

ORDER

The President of the International Court of Justice,

Having regard to Article 48 of the Statute of the Court and to Article 89, paragraphs 2 and 3, of the
Rules of Court,

Having regard to the Application filed in the Registry of the Court on 23 June 1999, whereby the
Democratic Republic of the Congo instituted proceedings against the Rwandese Republic in respect of a
dispute concerning "acts of armed aggression perpetrated by Rwanda on the territory of the Democratic
Republic of the Congo, in flagrant violation of the United Nations Charter and of the Charter of the
Organization of African Unity”,

Having regard to the Order of 21 October 1999, whereby the Court, taking into account the
agreement concerning the procedure reached between the Parties, and their views regarding the
time-limits to be fixed, decided that the written proceedings would first be addressed to the questions of
the jurisdiction of the Court to entertain the Application and of its admissibility, and fixed 21 April 2000
and 23 October 2000 respectively as the time-limits for the filing of the Memorial of the Rwandese
Republic and the Counter-Memorial of the Democratic Republic of the Congo on those questions,

Having regard to the Memorial of the Rwandese Republic, which was filed within the time-limit
thus fixed,

Having regard to the Order of 19 October 2000, whereby the President of the Court extended to
23 January 2001 the time-limit for the filing of the Counter-Memorial of the Democratic Republic of the
Congo;

Whereas, by a letter dated 15 January 2001, received in the Registry on the same day by facsimile,
the Agent of the Democratic Republic of the Congo, referring to Article 89, paragraph 2, of the Rules of
Court, notified the Court that the Government of the Democratic Republic of the Congo wished to
discontinue the proceedings and stated that it "reserve[d] the right to invoke subsequently new grounds of
jurisdiction of the Court";

Whereas a copy of that letter was immediately communicated to the Government of the Rwandese
Republic, which was informed that the President of the Court, acting pursuant to Article 89, paragraphs 2
and 3, of the Rules of Court, had fixed 23 January 2001 as the time-limit within which Rwanda could
state whether it opposed the discontinuance;

Whereas, by a letter dated 22 January 2001, received in the Registry on the same day by facsimile,
the Agent of Rwanda informed the Court that his Government concurred in the Democratic Republic of
the Congo's discontinuance of the proceedings,

Places on record the discontinuance by the Democratic Republic of the Congo of the proceedings
instituted by the Application filed on 23 June 1999; and

Orders that the case be removed from the List.

Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague,
this thirtieth day of January two thousand and one, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the Democratic Republic of the
Congo and the Government of the Rwandese Republic, respectively.

(Signed)Gilbert Guillaume,
President.

(Signed)Philippe Couvreur,
Registrar.


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE AMBATIELOS
(GRECE | ROYAUME-UNI)
ORDONNANCE DU 18 MAI 1951

1951

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

AMBATIELOS CASE

(GREECE / UNITED KINGDOM)
ORDER OF MAY 18th, 1951

SOCIETE D’EDITIONS A. W. SIJTHOFF'S

LEYDE LEYDEN
A. W. SIJTHOFF PUBLISHING COMPANY
La présente ordonnance doit étre citée comme suit :

« Affaire Ambatielos,
Ordonnance du 18 mai 1951: C. I. J. Recueil 1951, p. II.»

This Order should be cited as follows:

““Ambatielos case,
Order of May r8th, 1951: I.C.J. Reports 1951, p. 11.”

N° de vente : 58
Sales number

II

INTERNATIONAL COURT OF JUSTICE

YEAR 1951

Order made on May :8th, 1951

AMBATIELOS CASE

(GREECE UNITED KINGDOM)

The International Court of Justice,

having regard to Article 48 of the Statute,
having regard to Article 37 of the Rules of Court,
Makes the following Order :

Whereas, by a letter dated April oth, 1951, filed in the Registry
of the Court on the same day, the Minister of Greece at The Hague
deposited in the Registry of the Court an Application bearing the
same date, instituting proceedings against the United Kingdom of
Great Britain and Northern Ireland ;

Whereas, by this Application, the Court is requested, having first
declared that it has jurisdiction :

to adjudge and’ declare :

1. That the arbitral procedure referred to in the Final
Protocol of the Greco-Britannic Treaty of Commerce and
Navigation of 1886 must receive application in the present
case ;

2. That the Commission of Arbitration provided for in the
said Protocol shall be constituted within a reasonable
period, to be fixed by the Court ;

Whereas the Application states further that the Hellenic Govern-
ment reserves its right, in case His Britannic Majesty’s Government
should have failed to designate its arbitrator, or arbitrators, within
the time-limit fixed by the Court, to seize the Court of the merits
of the dispute ;

4

1951
May 18th
Genera! List :
No. 15
ORDER OF I8 V 5I (AMBATIELOS CASE) 12

Whereas the Application, which is signed by M. Nicolas G. Lély,
Minister of Greece at The Hague, Agent of the Hellenic Govern-
ment, invokes the combined provisions of the Treaty of Commerce
and Navigation between Greece and Great Britain, dated Novem-
ber roth, 1886, of the Final Declaration of the Greco-Britannic
Treaty of Commerce and Navigation of July 16th, 1926, and also
of Article 29 of the latter treaty, whence it would follow ‘‘that the
Permanent Court of International Justice has jurisdiction in the
case, and that it has been duly seized by means of an Application”,
His Britannic Majesty’s Government having, according to the said
Application, declined the repeated proposals of the Hellenic Govern-
ment to submit the present dispute to the arbitral procedure pro-
vided by the Final Protocol of the Treaty of 1886 ;

Whereas the Application states that the means for a direct and
amicable settlement have been exhausted in this case, and that the
dispute now turns on the interpretation and application of the
Treaty of 1886, in particular of Article 15, paragraph 3 ;

Whereas the Application thus specifies the provisions on which
the applicant founds the jurisdiction of the Court ;

Whereas the Application also states the precise nature of the
claim and gives a succinct statement of the facts and grounds on
which the claim is based ;

Whereas, therefore, the Application fulfils the formal conditions
laid down by the Rules of Court ;

Whereas, on April gth, 1951, the Government of the United
Kingdom of Great Britain and Northern Ireland was duly informed
by telegram of the filing of the Application, of which a certified
true copy was despatched to it on the same day and whereas
receipt of the said true copy was acknowledged by a letter, dated
April 11th, 1951, and signed by Sir Eric Beckett, Legal Adviser
to the Foreign Office ;

Whereas, in a letter dated May 7th, 1951, the British Ambassador
at The Hague notified the Court that it was the intention of his
Government to contest the grounds on which it is contended in the
Application of the Hellenic Government that the Court has juris-
diction in the case ;

Whereas, in the same letter, the British Ambassador notified
the Court that his Government had appointed as Agent Mr. Vincent
Evans, an Assistant Legal Adviser of the Foreign Office :

The President having ascertained the views of the Parties upon
questions of procedure, the Court fixes as follows the time-limits for
the filing by the Parties of the pleadings :
ORDER OF I8 V 5I (AMBATIELOS CASE) 13

for the Memorial of the Hellenic Government: July 30th, 1951;

for the Counter-Memorial of the United Kingdom Government :
October 15th, 1951.

And reserves the rest of the procedure for further decision.

Done in English and French, the English text being authoritative,
at the Peace Palace, The Hague, this eighteenth day of May, one
thousand nine hundred and fifty-one, in three copies, one of which
will be placed in the archives of the Court and the others transmitted
to the Hellenic Government and to the Government of the United
Kingdom respectively.

(Signed) BASDEVANT,
President.

(Signed) E. HAMBRO,
Registrar.