        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
            (CROATIA v. SERBIA)

          PRELIMINARY OBJECTIONS

       JUDGMENT OF 18 NOVEMBER 2008

               2008
        COUR INTERNATIONALE DE JUSTICE

            RECUEIL DES ARRE| TS,
     AVIS CONSULTATIFS ET ORDONNANCES

   AFFAIRE RELATIVE Av L’APPLICATION
DE LA CONVENTION POUR LA PRÉVENTION
ET LA RÉPRESSION DU CRIME DE GÉNOCIDE
             (CROATIE c. SERBIE)

         EXCEPTIONS PRE
                      u LIMINAIRES

         ARRE
            | T DU 18 NOVEMBRE 2008

                          Official citation :
   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, p. 412

                       Mode officiel de citation :
    Application de la convention pour la prévention et la répression
  du crime de génocide (Croatie c. Serbie), exceptions préliminaires,
                   arrêt, C.I.J. Recueil 2008, p. 412

                                             Sales number
ISSN 0074-4441
ISBN 978-92-1-071052-7
                                             No de vente :   943

                                     18 NOVEMBER 2008

                                       JUDGMENT

APPLICATION OF THE CONVENTION ON THE PREVENTION
    AND PUNISHMENT OF THE CRIME OF GENOCIDE
               (CROATIA v. SERBIA)

            PRELIMINARY OBJECTIONS

APPLICATION DE LA CONVENTION POUR LA PRÉVENTION
      ET LA RÉPRESSION DU CRIME DE GÉNOCIDE
               (CROATIE c. SERBIE)

           EXCEPTIONS PRE
                        u LIMINAIRES

                                     18 NOVEMBRE 2008

                                         ARRE
                                            |T

412

                            TABLE OF CONTENTS

                                                                     Paragraphs

CHRONOLOGY OF THE PROCEDURE                                                1-22
     I. IDENTIFICATION OF THE RESPONDENT PARTY                            23-34
    II. GENERAL OVERVIEW OF THE ARGUMENTS OF THE PARTIES                  35-42
    III. BRIEF HISTORY OF THE STATUS OF THE FRY WITH REGARD TO THE
         UNITED NATIONS                                                   43-51
    IV. RELEVANCE OF PREVIOUS DECISIONS OF THE COURT                      52-56
    V. PRELIMINARY OBJECTION TO THE JURISDICTION OF THE COURT            57-119
        (1) Issues of capacity to be a party to the proceedings           57-92
        (2) Issues of jurisdiction ratione materiae                      93-117
        (3) Conclusions                                                 118-119
    VI. PRELIMINARY OBJECTION TO THE JURISDICTION OF THE COURT AND
        TO ADMISSIBILITY, RATIONE TEMPORIS                         120-130
VII. PRELIMINARY OBJECTION CONCERNING THE SUBMISSION OF CERTAIN
     PERSONS TO TRIAL; THE PROVISION OF INFORMATION ON MISSING
     CROATIAN CITIZENS; AND THE RETURN OF CULTURAL PROPERTY 131-145

         (i) Submission of persons to trial                             133-136
        (ii) Provision of information on missing Croatian citizens      137-139

        (iii) Return of cultural property                               140-143
        (iv) Conclusion                                                 144-145
VIII. OPERATIVE CLAUSE                                                     146

4

                413

                              INTERNATIONAL COURT OF JUSTICE

    2008                                       YEAR 2008
18 November
 General List
   No. 118                                  18 November 2008

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

                                    PRELIMINARY OBJECTIONS

                                               JUDGMENT

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

                  In the case concerning the application of the Convention on the Prevention
                and Punishment of the Crime of Genocide,
                    between
                the Republic of Croatia,
                represented by
                  H.E. Mr. Ivan Šimonović, Ambassador, Professor of Law at the University
                     of Zagreb Law Faculty,
                  as Agent ;
                  H.E. Ms Andreja Metelko-Zgombić, Ambassador, Head of International
                     Law Service, Ministry of Foreign Affairs and European Integration of the
                     Republic of Croatia,
                  Ms Maja Seršić, Professor of Law at the University of Zagreb Law Faculty,

                5

414          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

    H.E. Mr. Frane Krnić, Ambassador of the Republic of Croatia to the King-
      dom of the Netherlands,
    as Co-Agents ;
    Mr. James Crawford, S.C., Whewell Professor of International Law, Univer-
      sity of Cambridge, Barrister, Matrix Chambers,
    Mr. Philippe Sands, Q.C., Professor of Law, University College London,
      Barrister, Matrix Chambers,
    as Counsel and Advocates ;
    Mr. Mirjan Damaška, Sterling Professor of Law, Yale Law School,

    Ms Anjolie Singh, Member of the Indian Bar,
    as Counsel ;
    Mr. Ivan Salopek, Third Secretary of the Embassy of Croatia in the Neth-
      erlands,
    Ms Jana Špero, Directorate for Co-operation with International Criminal
      Courts, Ministry of Justice,
    as Advisers,
    and
the Republic of Serbia,
  represented by
  Mr. Tibor Varady, S.J.D. (Harvard), Professor of Law at the Central Euro-
    pean University, Budapest, and Emory University, Atlanta,
  as Agent ;
  Mr. Saša Obradović, First Counsellor of the Embassy of Serbia in the Neth-
    erlands,
  as Co-Agent ;
  Mr. Andreas Zimmermann, LL.M. (Harvard), Professor of Law at the Uni-
    versity of Kiel, Director of the Walther-Schücking Institute,
  Mr. Vladimir Djerić, LL.M. (Michigan), Attorney at Law, Mikijelj, Janković
    & Bogdanović, Belgrade, President of the International Law Association
    of Serbia,
  as Counsel and Advocates ;
  H.E. Mr. Radoslav Stojanović, S.J.D., Ambassador of the Republic of Serbia
    to the Kingdom of the Netherlands, Professor at the Belgrade University
    School of Law,
  H.E. Ms Sanja Milinković, LL.M., Ambassador, Head of the International
    Legal Service of the Ministry of Foreign Affairs of the Republic of Serbia,

    Mr. Vladimir Cvetković, First Secretary of the Embassy of Serbia in the
     Netherlands,
    Ms Jelena Jolić, M.Sc. (London School of Economics and Political
     Science),
    Mr. Igor Olujić, Attorney at Law, Belgrade,
    Mr. Svetislav Rabrenović, LL.M. (Michigan),
    Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Walther-Schücking Insti-
     tute, University of Kiel,

6

415          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

    Ms Dina Dobrković, LL.B.,
    as Advisers,
    THE COURT,
    composed as above,
    after deliberation,
    delivers the following Judgment :
   1. On 2 July 1999, the Government of the Republic of Croatia (hereinafter
“Croatia”) filed an Application against the Federal Republic of Yugoslavia
(hereinafter “the FRY”) in respect of a dispute concerning alleged violations of
the Convention on the Prevention and Punishment of the Crime of Genocide,
approved by the General Assembly of the United Nations on 9 December 1948
(hereinafter “the Genocide Convention” or “the Convention”). The Applica-
tion invoked Article IX of the Genocide Convention as the basis of the jurisdic-
tion of the Court.
   2. Pursuant to Article 40, paragraph 2, of the Statute of the Court, the Reg-
istrar immediately communicated a certified copy of the Application to the
Government of the FRY ; and, in accordance with paragraph 3 of that Article, all
other States entitled to appear before the Court were notified of the Application.
   3. Pursuant to the instructions of the Court under Article 43 of the Rules of
Court, the Registrar addressed to States parties to the Genocide Convention
the notification provided for in Article 63, paragraph 1, of the Statute. The
Registrar also sent to the Secretary-General of the United Nations the notifica-
tion provided for in Article 34, paragraph 3, of the Statute and subsequently
transmitted to him copies of the written proceedings.
   4. By an Order dated 14 September 1999, the Court fixed 14 March 2000 as
the time-limit for the filing of the Memorial of Croatia and 14 September 2000
as the time-limit for the filing of the Counter-Memorial of the FRY.

   5. By an Order dated 10 March 2000, the President of the Court, at the
request of Croatia, extended the time-limit for the filing of the Memorial to
14 September 2000 and accordingly extended the time-limit for the filing of the
Counter-Memorial of the FRY to 14 September 2001.
   6. By a letter dated 26 May 2000, the Agent of Croatia requested the Court,
for reasons stated in that letter, to extend by a further period of six months the
time-limit for the filing of its Memorial. By a letter dated 6 June 2000, the
Agent of the FRY informed the Court that his Government was not opposed
to the request by Croatia on the condition that it would be granted the same
extension for the filing of its Counter-Memorial.
   7. By an Order dated 27 June 2000, the Court extended the time-limits to
14 March 2001 and 16 September 2002, respectively, for the filing of the
Memorial of Croatia and the Counter-Memorial of the FRY. Croatia duly filed
its Memorial within the time-limit thus extended.
   8. 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 : Croatia chose Mr. Bud-
islav Vukas and the FRY chose Mr. Milenko Kreća.

  9. On 11 September 2002, within the time-limit provided for in Article 79,
paragraph 1, of the Rules of Court as adopted on 14 April 1978, the FRY

7

416         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

raised preliminary objections relating to the Court’s jurisdiction to entertain
the case and to the admissibility of the Application. Accordingly, by an Order
of 14 November 2002, the Court stated that, by virtue of Article 79, para-
graph 3, of the Rules of Court as adopted on 14 April 1978, the proceedings on
the merits were suspended, and fixed 29 April 2003 as the time-limit for the
presentation by Croatia of a written statement of its observations and submis-
sions on the preliminary objections raised by the FRY. Croatia filed such a
statement within the time-limit thus fixed.
   10. By a letter of 8 November 2002, the Government of Bosnia and Herze-
govina requested to be furnished with copies of the pleadings and annexed
documents in the case. Having ascertained the views of the Parties pursuant to
Article 53, paragraph 1, of the Rules of Court, the President of the Court
decided to grant that request. The Registrar communicated that decision to the
Government of Bosnia and Herzegovina and to the Parties by letters of
11 December 2002.
   11. By a letter dated 5 February 2003, the FRY informed the Court that,
following the adoption and promulgation of the Constitutional Charter of Ser-
bia 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 Yugosla-
via” to “Serbia and Montenegro”. Following the announcement of the result of
a referendum held in Montenegro on 21 May 2006 (as contemplated in the
Constitutional Charter of Serbia and Montenegro), the National Assembly of
the Republic of Montenegro adopted a declaration of independence on
3 June 2006 (see paragraph 23 below).
   12. By a letter dated 11 April 2007, the Registrar, in accordance with Arti-
cle 69, paragraph 3, of the Rules of Court, asked the Secretary-General of the
United Nations to inform him whether or not the United Nations intended to
present observations in writing within the meaning of the said provision. In a
letter dated 7 May 2007, the Secretary-General indicated that the United
Nations did not intend to submit any such observations.
   13. On 1 April 2008, the Co-Agent of Serbia provided the Registry with nine
additional documents which it wished to produce in the case, under Article 56,
paragraph 1, of the Rules of Court. By a letter dated 24 April 2008, the Agent
of Croatia informed the Court that his Government had no objection to the
production of these documents and that it wished, for its part, to produce two
new documents. By the same letter, the Agent of Croatia requested that the
Court call upon the Respondent, under Article 49 of its Statute and Article 62,
paragraph 1, of the Rules of Court, to produce a certain number of documents.
By a letter dated 29 April 2008, the Agent of Croatia provided additional infor-
mation relating to the said request.
   14. By a letter dated 2 May 2008, the Agent of Serbia informed the Court
that his Government did not object to the production of the two new docu-
ments which Croatia wished to produce in the case. He further informed the
Court of his Government’s observations with regard to Croatia’s request that
the Court call upon the Respondent to produce a certain number of docu-
ments, and expressed, inter alia, “certain doubts as to whether the given request
submitted at this stage of the proceedings and in this moment of time could
serve the interests of a sound administration of justice”.

  15. On 6 May 2008, the Registrar notified the Parties that the Court had
decided to authorize the production of the documents they wished to submit
under Article 56 of the Rules of Court ; these documents, accordingly, were

8

417            APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

added to the case file. The Registrar further informed the Parties of the Court’s
decision not to accede, at this stage of the proceedings, to Croatia’s request that
the Court call upon the Respondent, under Article 49 of the Statute and Arti-
cle 62, paragraph 1, of the Rules of Court, to produce a certain number of
documents. He indicated to the Parties that the Court was not satisfied that the
production of the requested documents was necessary for the purpose of ruling
on preliminary objections. The Registrar also explained that the Court consid-
ered that Croatia had failed to provide sufficient reason to justify the great late-
ness of its request and that to accede to this request made at this very late
juncture would, in addition, raise many practical problems.

    16. By letters dated 6 May 2008, the Registrar informed the Parties that the
Court asked them to address, during the hearings, the issue of the capacity of
the Respondent to participate in proceedings before the Court at the time of
filing of the Application, given the fact that the issue had not been addressed as
such in the written pleadings.
    17. Pursuant to Article 53, paragraph 2, of its 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.
    18. Public sittings were held from 26 May to 30 May 2008, at which the
Court heard the oral arguments and replies of :
For Croatia :    H.E. Mr. Ivan Šimonović,
                 H.E. Ms Andreja Metelko-Zgombić,
                 Mr. Philippe Sands,
                 Mr. James Crawford.
For Serbia :     Mr. Tibor Varady,
                 Mr. Vladimir Djerić,
                 Mr. Andreas Zimmermann.
  19. At the hearings, a question was put by a Member of the Court and
replies given orally and in writing, in accordance with Article 61, paragraph 4,
of the Rules of Court. Pursuant to Article 72 of the Rules of Court, Croatia
presented written observations on the written reply received from Serbia.

                                           *
    20. In its Application, the following claims were made by Croatia :
         “While reserving the right to revise, supplement or amend this Applica-
      tion, and, subject to the presentation to the Court of the relevant evidence
      and legal arguments, Croatia requests the Court to adjudge and declare as
      follows :
      (a) that the Federal Republic of Yugoslavia has breached its legal obli-
            gations toward the people and Republic of Croatia 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 the Federal Republic of Yugoslavia has an obligation to pay to
            the Republic of Croatia, in its own right and as parens patriae for its
            citizens, reparations for damages to persons and property, as well as
            to the Croatian economy and environment caused by the foregoing

9

418          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

           violations of international law in a sum to be determined by the
           Court. The Republic of Croatia reserves the right to introduce to the
           Court at a future date a precise evaluation of the damages caused by
           the Federal Republic of Yugoslavia.”

  21. In the written proceedings, the following submissions were presented by
the Parties :
On behalf of the Government of Croatia,
in the Memorial :
         “On the basis of the facts and legal arguments presented in this Memo-
      rial, the Applicant, the Republic of Croatia, respectfully requests the Inter-
      national Court of Justice to adjudge and declare :
         1. That the Respondent, the Federal Republic of Yugoslavia, is respon-
      sible for violations of the Convention on the Prevention and Punishment
      of the Crime of Genocide :
      (a) in that persons for whose conduct it is responsible committed geno-
             cide on the territory of the Republic of Croatia, including in particu-
             lar against members of the Croat national or ethnical group on that
             territory, 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 ;

      with the intent to destroy that group in whole or in part, contrary to Arti-
      cle II of the Convention ;
      (b) in that persons for whose conduct it is responsible conspired to com-
            mit the acts of genocide referred to in paragraph (a), were complicit
            in respect of those acts, attempted to commit further such acts of
            genocide and incited others to commit such acts, contrary to Arti-
            cle III of the Convention ;

      (c) in that, aware that the acts of genocide referred to in paragraph (a)
           were being or would be committed, it failed to take any steps to pre-
           vent those acts, contrary to Article I of the Convention ;
      (d) in that it has failed to bring to trial persons within its jurisdiction who
           are suspected on probable grounds of involvement in the acts of
           genocide referred to in paragraph (a), or in the other acts referred to
           in paragraph (b), and is thus in continuing breach of Articles I and
           IV of the Convention.
        2. That as a consequence of its responsibility for these breaches of the
      Convention, the Respondent, the Federal Republic of Yugoslavia, is under
      the following obligations :
      (a) to take immediate and effective steps to submit to trial before the
           appropriate judicial authority, those citizens or other persons within
           its jurisdiction who are suspected on probable grounds of having

10

419          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

          committed acts of genocide as referred to in paragraph (1) (a), or
          any of the other acts referred to in paragraph (1) (b), in particular
          Slobodan Milošević, the former President of the Federal Republic of
          Yugoslavia, and to ensure that those persons, if convicted, are duly
          punished for their crimes ;
      (b) to provide forthwith to the Applicant all information within its pos-
          session or control as to the whereabouts of Croatian citizens who are
          missing as a result of the genocidal acts for which it is responsible,
          and generally to co-operate with the authorities of the Republic of
          Croatia to jointly ascertain the whereabouts of the said missing per-
          sons or their remains ;
      (c) forthwith to return to the Applicant any items of cultural property
          within its jurisdiction or control which were seized in the course of the
          genocidal acts for which it is responsible ; and
      (d) to make reparation to the Applicant, in its own right and as parens
          patriae for its citizens, for all damage and other loss or harm to per-
          son or property or to the economy of Croatia caused by the foregoing
          violations of international law, in a sum to be determined by the
          Court in a subsequent phase of the proceedings in this case. The
          Republic of Croatia reserves the right to introduce to the Court a pre-
          cise evaluation of the damages caused by the acts for which the Fed-
          eral Republic of Yugoslavia is held responsible.

        The Republic of Croatia reserves the right to supplement or amend
      these submissions as necessary.”
On behalf of the Government of Serbia,
in the preliminary objections :
         “For the reasons advanced above, the Federal Republic of Yugoslavia is
      asking the Court :
      to uphold the First Preliminary Objection and to adjudge and declare that
      it lacks jurisdiction over the claims brought against the Federal Republic
      of Yugoslavia by the Republic of Croatia.
      Or, in the alternative,
      (a) to uphold the Second Preliminary Objection and to adjudge and
            declare that claims based on acts or omissions which took place
            before the FRY came into being (i.e. before 27 April 1992) are inad-
            missible ;
      and
      (b) to uphold the Third Preliminary Objection, and to adjudge and
            declare that specific claims referring to :
      — taking effective steps to submit to trial Mr. Milošević and other per-
           sons ;
      — providing information regarding the whereabouts of missing Croatian
           citizens ; and
      — return of cultural property ;
      are inadmissible and moot.
         The Respondent reserves its right to supplement or amend its submis-
      sions in the light of further pleadings.”

11

420           APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

On behalf of the Government of Croatia,
in the written statement containing its observations and submissions on the
preliminary objections raised by the FRY :
        “On the basis of the facts and legal arguments presented in these Writ-
      ten Observations, the Republic of Croatia respectfully requests the Inter-
      national Court of Justice to reject the First, Second and Third Preliminary
      Objections of the FRY (Serbia and Montenegro) (with the exception of
      that part of the Second Preliminary Objection which relates to the claim
      concerning the submission to trial of Mr. Slobodan Milošević), and accord-
      ingly to adjudge and declare that it has jurisdiction to adjudicate upon the
      Application filed by the Republic of Croatia on 2 July 1999.”
  22. At the oral proceedings, the following submissions were presented by the
Parties :
On behalf of the Government of Serbia,
at the hearing of 29 May 2008 :
        “For the reasons given in its written submissions and its oral pleadings,
      Serbia requests the Court to adjudge and declare :
      1. that the Court lacks jurisdiction,
      or, in the alternative :
      2. (a) that claims based on acts and omissions which took place prior to
              27 April 1992 are beyond the jurisdiction of this Court and inad-
              missible ;
         and
         (b) that claims referring to
         — submission to trial of certain persons within the jurisdiction of Ser-
             bia,
         — providing information regarding the whereabouts of missing
             Croatian citizens, and
         — return of cultural property
      are beyond the jurisdiction of this Court and inadmissible.”
On behalf of the Government of Croatia,
at the hearing of 30 May 2008 :
        “On the basis of the facts and legal arguments presented in our Written
      Observations, as well as those during these oral pleadings, the Republic of
      Croatia respectfully requests the International Court of Justice to :
      (1) reject the first, second and third preliminary objection of Serbia, with
          the exception of that part of the second preliminary objection which
          relates to the claim concerning the submission to trial of Mr. Slo-
          bodan Milošević, and accordingly to
      (2) adjudge and declare that it has jurisdiction to adjudicate upon the
          Application filed by the Republic of Croatia on 2 July 1999.”

                                      * * *
12

421         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

              I. IDENTIFICATION OF THE RESPONDENT PARTY

  23. The Court has first to consider a question concerning the identifi-
cation of the respondent Party before it in these proceedings. By a letter
dated 3 June 2006, the President of the Republic of Serbia (hereinafter
“Serbia”) informed the Secretary-General of the United Nations that,
following the declaration of independence adopted by the National
Assembly of the Republic of Montenegro,
      “the membership of the state union Serbia and Montenegro in the
      United Nations, including all organs and organizations of the United
      Nations system, [would be] continued by the Republic of Serbia, on
      the basis of Article 60 of the Constitutional Charter of Serbia and
      Montenegro”.

He further stated that “in the United Nations the name ‘Republic of Ser-
bia’ [was] to be henceforth used instead of the name ‘Serbia and Mon-
tenegro’” 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”.

   24. By a letter of 16 June 2006, the Minister for Foreign Affairs of Ser-
bia informed the Secretary-General, inter alia, that “[t]he Republic of
Serbia continue[d] to exercise its rights and honour its commitments
deriving from international treaties concluded by Serbia and Montene-
gro” and requested that “the Republic of Serbia be considered a party to
all international agreements in force, instead of Serbia and Montenegro”.
By a letter of 30 June 2006, addressed to the Secretary-General, the Min-
ister for Foreign Affairs confirmed the intention of Serbia to continue to
exercise its rights and honour its commitments deriving from interna-
tional treaties concluded by Serbia and Montenegro. He specified that
“[a]ll treaty actions undertaken by Serbia and Montenegro w[ould] con-
tinue 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”.
   25. 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.
   26. By letters dated 19 July 2006, the Registrar requested the Agent of
Croatia, the Agent of Serbia and the Minister for Foreign Affairs of
Montenegro to communicate to the Court the views of their Govern-
ments on the consequences to be attached to the above-mentioned devel-
opments regarding the identity of the Respondent in the case. On the
same date, similar letters were addressed to the Parties in the case con-
cerning Application of the Convention on the Prevention and Punishment

13

422         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Mon-
tenegro), which had been not only instituted but also heard on the merits
before the independence of Montenegro.
   27. By a letter dated 22 July 2006, the Agent of Serbia explained that,
in his Government’s opinion, “there [was] continuity between Serbia and
Montenegro 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 [being] Serbia, the other [being] Mon-
tenegro”. 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”.
   28. By a letter dated 29 November 2006, addressed to the Court, the
Chief State Prosecutor of Montenegro, after indicating her capacity to
act as a legal representative of Montenegro, drew attention to the fact
that, following the referendum held in Montenegro on 21 May 2006, the
National Assembly of Montenegro had pronounced the independence of
Montenegro. In the view of the Chief State Prosecutor, Montenegro had
become an independent State with full international legal personality
within its existing borders. She further stated that :
         “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 Ser-
      bia, which, as a sovereign state, [has] become [the] follower of all
      international obligations and successor in international organiza-
      tions.”
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”.
   29. On 26 February 2007 the Court gave judgment in the case con-
cerning Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Mon-
tenegro), in which it decided that Serbia remained a respondent in that
case, “and at the date of [that] Judgment [was] indeed the only Respon-
dent” (Judgment, I.C.J. Reports 2007 (I), p. 76, para. 77).
   30. By a letter dated 15 May 2008, the Agent of Croatia referred to
Article 60 of the Constitutional Charter of Serbia and Montenegro and
to paragraphs 76 and 77 of the 2007 Judgment. Given those circum-
stances, the Agent of Croatia confirmed that the proceedings instituted
by Croatia on 2 July 1999 were “maintained against [the] Republic of
Serbia as Respondent”. He further noted that this conclusion was “with-
out prejudice to the potential responsibility of [the] Republic of Montene-
gro and the possibility of instituting separate proceedings against it”.

14

423         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

   31. The Court observes that the facts and events on which the submis-
sions of Croatia on the merits are based occurred at a period of time
when Serbia and Montenegro were part of the same State.
   32. The Court further notes that Serbia has accepted “continuity
between Serbia and Montenegro and the Republic of Serbia” (see para-
graph 27 above), and said that it would honour “its commitments deriv-
ing from international treaties concluded by Serbia and Montenegro”
(see paragraph 24 above), which would include commitments under the
Genocide Convention. Montenegro, on the other hand, is a new State
admitted as such to the United Nations. It does not continue the inter-
national legal personality of the State union of Serbia and Montenegro.

   33. As in the case concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herze-
govina v. Serbia and Montenegro), the Court must recall the fundamen-
tal 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). The question whether in this case such consent
exists on the part of Serbia is one of the issues raised by the preliminary
objections, the subject of the present Judgment. Montenegro made clear
in its letter of 29 November 2006 (see paragraph 28 above) that it does
not give its consent to the jurisdiction of the Court over it for the pur-
poses of the present dispute. The events referred to above (see para-
graphs 23-25 and 32) clearly show that Montenegro does not continue
the legal personality of Serbia and Montenegro ; it cannot therefore have
acquired, on that basis, the status of Respondent in the present case. Further-
more, the Applicant did not in its letter of 15 May 2008 assert that Mon-
tenegro is still a party to the present case (see paragraph 30 above).

  34. The Court therefore concludes that Serbia is the sole Respondent
in the case. The name of Serbia will thus be used when referring to the
Respondent, except when it follows from the historical context that ref-
erence has to be made to the FRY or to Serbia and Montenegro.

                                    * * *

       II. GENERAL OVERVIEW OF THE ARGUMENTS OF THE PARTIES

   35. In its Application dated 2 July 1999 the Government of Croatia,
referring to acts which occurred during the conflict that took place
between 1991 and 1995 in the territory of the former Socialist Federal
Republic of Yugoslavia (hereinafter the “SFRY”), contended that the
FRY had committed violations of the Genocide Convention. The Gov-

15

424        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

ernment of the FRY contested the admissibility of the Application as
well as the jurisdiction of the Court under Article IX of the Genocide
Convention on several grounds (see paragraphs 21 and 22 above).
  The Court will now give a general overview of the arguments of the
Parties before presenting them in more detail when examining the differ-
ent preliminary objections raised by the Respondent.
  36. With regard to the question which the Parties were invited by the
Court to address (see paragraph 16 above), that of the capacity of the
Respondent under Article 35 of the Statute to participate in the present
proceedings, the Respondent claimed that it did not have such capacity,
because, as the Court had confirmed in 2004 in the cases concerning
Legality of Use of Force, it was not a Member of the United Nations
until 1 November 2000 and therefore not party to the Statute at the time
of filing of the Application on 2 July 1999. Croatia, however, argued that
the FRY was a Member of the United Nations at the time of filing of the
Application and that even if that was not the case, the status of Serbia
within the United Nations in 1999 did not affect the present proceedings
as the Respondent became a Member of the United Nations in 2000 and
thereby validly gained capacity to take part in the present proceedings.

   37. The Respondent raised a preliminary objection concerning the
jurisdiction of the Court on the basis of Article IX of the Genocide Con-
vention. In the Application, Croatia had maintained that both Parties
were bound by the Genocide Convention as successor States of the
SFRY. Serbia stated that the Court’s jurisdiction in the present case,
which was instituted on 2 July 1999, could not be based on Article IX of
the Genocide Convention, in view of the fact that the FRY did not
become bound by the Convention in any way before 10 June 2001, the
date at which its notification of accession to the Genocide Convention
became effective with a reservation regarding Article IX ; thus Serbia had
never become bound by Article IX of the Convention.
   38. Serbia also contended that Croatia’s Application was inadmissible
so far as it refers to acts or omissions prior to the FRY’s proclamation of
independence on 27 April 1992. It stated that acts or omissions which
took place before the FRY came into existence could not be attributed to
it. Croatia stated that although Serbia’s preliminary objection, as stated
in its final submission 2 (a), is presented as an objection to the admissi-
bility of the claim, in point of fact Serbia seemed to be arguing that the
Court had no jurisdiction ratione temporis over acts or events occurring
before 27 April 1992. In this regard, it referred to the Court’s Judgment
of 11 July 1996 in which the Court stated that there are no temporal limi-
tations to the application of the Genocide Convention and to its exercise
of jurisdiction under the said Convention, in the absence of reservations
to that effect (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. 617,

16

425        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

para. 34). During the oral pleadings, Serbia maintained the alternative
argument that the Court lacked jurisdiction ratione temporis for acts or
events that occurred before 27 April 1992, the date it came into existence,
on the grounds that this date was the earliest possible point in time at
which the FRY could have become bound by the Genocide Convention
(see paragraph 121 below).
   39. Serbia maintained that Croatia’s submission 2 (a) in its Memorial
(paragraph 21 above) concerning the submission to trial of persons sus-
pected of having committed acts of genocide (including Slobodan Milo-
šević) was “inadmissible and moot”. Serbia contended that “[t]he crimes
ascribed to Mr. Milošević and others in relation to the territory of
Croatia include[d] crimes against humanity, breaches of the Geneva con-
ventions and violations of the laws or customs of war” but did not
include genocide. Croatia accepted that its submission 2 (a) was now
moot in respect of those persons who have been transferred to the ICTY,
including Mr. Milošević. However, Croatia pointed out that a large
number of persons who are responsible for what Croatia considers to
constitute genocidal acts committed in its territory and who are claimed
to be within the jurisdiction of Serbia have still not been handed over to
the ICTY or to Croatia nor submitted to trial in Serbia.

   40. Serbia asserted that Croatia’s submission 2 (b) in its Memorial
(paragraph 21 above), concerning missing persons, was “inadmissible
and moot”. Serbia maintained that this specific submission fell outside
the scope of the Genocide Convention and, in addition, had become
moot since the Government of the FRY had been co-operating with the
Government of Croatia since 1995 with a view to establishing the where-
abouts of Croatian citizens missing as a result of the armed conflict.
Croatia affirmed that its submission relating to the whereabouts of miss-
ing persons did fall within the scope of the Genocide Convention. It
maintained that Serbia had at its disposal information and document-
ation on a large number of missing persons. It added that a compromis-
sory clause providing for the Court’s jurisdiction — such as Article IX of
the Genocide Convention — over a dispute about the interpretation and
application of a treaty established the Court’s jurisdiction to award
appropriate remedies, and that the provision of information on the
whereabouts of missing persons was an appropriate remedy.

   41. Serbia finally claimed that Croatia’s submission 2 (c) in its Memo-
rial (paragraph 21 above), concerning return of cultural property was
“inadmissible and moot”. According to Serbia, it is inadmissible because
jurisdiction with respect to alleged crimes of genocide cannot include
property claims regarding objects of art. Croatia considered that its claim
regarding the return of cultural property did fall within the scope of the
Genocide Convention. In Croatia’s view, it is recognized that genocide

17

426         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

may not only be committed through physical destruction of a group but
also through destruction of a group’s cultural identity.

   42. The Court will examine these arguments in turn. It will first exam-
ine the question of the capacity of Serbia to take part in the present
proceedings and will for this purpose briefly recall the series of events relat-
ing to the status, at successive periods, of the SFRY, the FRY and Serbia
in relation to the United Nations.

                                    * * *

          III. BRIEF HISTORY OF THE STATUS OF THE FRY WITH
                    REGARD TO THE UNITED NATIONS

  43. In the early 1990s the SFRY, a founding Member State of the
United Nations, comprised of Bosnia and Herzegovina, Croatia, Mace-
donia, 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.

   44. 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” adopted a declaration
stating in particular :
        “. . . . . . . . . . . . . . . . . . . . . . . . . . . .
        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.)
   On the same date, the Permanent Mission of Yugoslavia to the United
Nations sent a Note with a similar wording to the Secretary-General (see
paragraph 99 below).
   45. On 19 September 1992, the Security Council adopted resolu-
tion 777 (1992), in which it considered that “the Federal Republic of
Yugoslavia (Serbia and Montenegro) cannot continue automatically the
membership of the former Socialist Federal Republic of Yugoslavia in

18

427         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

the United Nations” ; it further recommended to the General Assembly
that it “decide that the FRY (Serbia and Montenegro) should apply for
membership in the United Nations and that it shall not participate in the
work of the General Assembly”.

   46. On the recommendation of the Security Council, stated in its reso-
lution 777 (1992), the General Assembly adopted resolution 47/1, on
22 September 1992, whereby it was decided that the FRY should apply
for membership in the United Nations and that it should not participate
in the work of the General Assembly.
   47. 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
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 “request[ed] that [the Secretary-General] provide a legal
explanatory statement concerning the questions raised” (United Nations
doc. A/47/474).
   48. 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, in substance, that “the only practical consequence” of
resolution 47/1 was to prohibit the FRY from participating in the work
of the General Assembly, but that it “neither terminates nor suspends
Yugoslavia’s membership in the Organization”. He added that the situa-
tion thus created would be terminated by “[t]he admission to the United
Nations of a new Yugoslavia” (see United Nations doc. A/47/485).
   49. Considering this sequence of events, the Court in its Judgments of
15 December 2004 in the cases concerning the Legality of Use of Force,
observed that
      “all these events testify to the rather confused and complex state of
      affairs that obtained within the United Nations surrounding the
      issue of the legal status of the Federal Republic of Yugoslavia in the
      Organization during this period” (Legality of Use of Force (Serbia
      and Montenegro v. Belgium), Preliminary Objections, Judgment,
      I.C.J. Reports 2004 (I), 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 (ibid., citing I.C.J. Reports 2003, p. 31, para. 71).
  50. This position, however, came to an end with a new development in
2000. On 27 October 2000, Mr. Koštunica, the newly elected President of
the FRY, sent a letter to the Secretary-General requesting admission of
the FRY to membership in the United Nations.
  51. On 1 November 2000, the General Assembly, by resolution 55/12,

19

428        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

“[h]aving received the recommendation of the Security Council of
31 October 2000” and “[h]aving considered the application for member-
ship of the Federal Republic of Yugoslavia”, decided to “admit the Fed-
eral Republic of Yugoslavia to membership in the United Nations”.

                                  * * *

         IV. RELEVANCE OF PREVIOUS DECISIONS OF THE COURT

   52. Central to the present proceedings is the question of the status and
position of the State known at the time of the filing of the Application as
the FRY, in relation to the Statute of the Court and to the Genocide Con-
vention. That question has been in issue in a number of previous decisions
of the Court. In the case concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herze-
govina v. Serbia and Montenegro), there were two decisions on requests
for the indication of provisional measures (Orders of 8 April and 13 Sep-
tember 1993), a decision on preliminary objections (Judgment of 11 July
1996) and a decision on the merits (Judgment of 26 February 2007). In the
case concerning 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 (Bosnia and Herzegovina v.
Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herze-
govina), the Court delivered a Judgment on 3 February 2003. In the set of
cases concerning the Legality of Use of Force brought by the FRY against
ten Member States of the North Atlantic Treaty Organization the Court
rendered Judgments in eight of those cases on 15 December 2004 uphold-
ing preliminary objections on the ground of a lack of capacity on the part
of the Applicant to appear before the Court. Both Parties to the present
case have cited these various decisions in support of their respective con-
tentions. It may be convenient at the outset for the Court to indicate to
what extent it considers that these decisions may have weight for the pur-
pose of deciding the matters now before it.
   53. While some of the facts and the legal issues dealt with in those
cases arise also in the present case, none of those decisions were given in
proceedings between the two Parties to the present case (Croatia and Ser-
bia), so that, as the Parties recognize, no question of res judicata arises
(Article 59 of the Statute of the Court). To the extent that the decisions
contain findings of law, the Court will treat them as it treats all previous
decisions : that is to say that, while those decisions are in no way binding
on the Court, it will not depart from its settled jurisprudence unless it
finds very particular reasons to do so. As the Court has observed in the
case concerning the Land and Maritime Boundary between Cameroon
and Nigeria (Cameroon v. Nigeria : Equatorial Guinea intervening), while
“[t]here can be no question of holding [a State] to decisions reached by

20

429        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

the Court in previous cases” which do not have binding effect for that
State, in such circumstances “[t]he real question is whether, in [the cur-
rent] case, there is cause not to follow the reasoning and conclusions of
earlier cases” (Preliminary Objections, Judgment, I.C.J. Reports 1998,
p. 292, para. 28).

   54. Furthermore, here the Parties are not merely citing previous deci-
sions of the Court which might be regarded as precedents to be followed
in comparable cases. The previous decisions cited here referred to the
question of the status of a particular State, the FRY, in relation to the
United Nations and to the Statute of the Court ; and it is that same ques-
tion in relation to that same State that requires to be examined in the
present proceedings at the instance, this time, of Croatia. It would
require compelling reasons for the Court to depart from the conclusions
reached in those previous decisions.
   55. The Court will consequently bear in mind that in the proceedings
in the course of which the above-cited Judgments and Orders were ren-
dered (see paragraph 52 above), it was not the contention either of Bos-
nia and Herzegovina or, until 2002, of the FRY that the FRY was not a
Member of the United Nations (and thus was not a party to the Statute),
or that it was not a party to the Genocide Convention. It was only when
the FRY, abandoning its claim to continue the United Nations member-
ship of the SFRY, was admitted to the United Nations in 2000 that it
advanced the opposite view, initially in its Written Statement, filed on
20 December 2002, on the Preliminary Objections submitted in the Legal-
ity of Use of Force cases. It was not until the written and oral proceed-
ings in those cases that the Court heard an exchange of full argument
between the parties on these points. The Court will consider in the
present Judgment the grounds adopted for the conclusion to which it
came, in those decisions, as regards the status of the Respondent.

  56. There have also been suggestions in argument by Croatia before
the Court that the previous cases mentioned above are relevant as show-
ing, in particular, that Serbia as a party to those cases initially adopted
and put forward a legal position from which it cannot now resile for pur-
poses of the present case. This contention relates only to the question of
the legal consequences to be drawn from the conduct of this State, and
not strictly speaking to the effect or relevance of the above-cited case law.

                                   * * *

      V. PRELIMINARY OBJECTION TO THE JURISDICTION OF THE COURT
         (1) Issues of capacity to be a party to the proceedings
  57. The first question to be addressed by the Court when examining
the Respondent’s first preliminary objection is whether the Parties in the

21

430         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

present case satisfy the general conditions, under Articles 34 and 35 of
the Statute, for capacity to participate in proceedings before the Court.

   58. It should be recalled in this regard that, under Article 34, para-
graph 1, of the Statute, “[o]nly States may be parties in cases before the
Court”. Article 35, paragraph 1, moreover lays down that “[t]he Court
shall be open to the States parties to the present Statute”. The latter pro-
vision is to be understood in the light of Article 93 of the Charter of the
United Nations ; paragraph 1 of that Article states that “[a]ll Members of
the United Nations are ipso facto parties to the Statute of the Interna-
tional Court of Justice”, but provision is made in paragraph 2 by way of
exception for cases in which a State not a Member of the United Nations
may become a party to the Statute of the Court. In respect of States
which are not parties to the Statute of the Court, as Members of the
United Nations or otherwise, the position is governed by Article 35,
paragraph 2, of the Statute. That paragraph on the one hand empowers
the Security Council to lay down the conditions under which the Court
shall be open to such States and on the other contains a reservation for
“special provisions contained in treaties in force”. Pursuant to the author-
ity thus conferred upon it, the Security Council adopted resolution 9
(1946) of 15 October 1946, providing in substance that the Court shall be
open to any State not a party to the Statute which has previously depos-
ited a declaration, either in respect of one or more particular matters or
with a more general ambit, whereby the State undertakes to accept the
jurisdiction of the Court in accordance with the Charter and to comply in
good faith with the decisions of the Court.
   59. It is neither disputed nor disputable in the present case that both
Parties satisfy the condition laid down in Article 34 of the Statute :
Croatia and Serbia are States for purposes of Article 34, paragraph 1.

  60. It is not disputed nor is it open to doubt that, at the date it filed its
Application, 2 July 1999, Croatia satisfied a condition under Article 35 of
the Statute sufficient for the Court to be “open” to it : at that date it was
a Member of the United Nations and, as such, therefore a party to the
Statute of the Court.
  61. On the other hand the Parties disagreed whether Serbia satisfies,
for the purposes of the present case, the conditions under Article 35,
paragraph 1 or paragraph 2, of the Statute and whether, in view of the
foregoing, it has capacity to participate in the present proceedings before
the Court.
  62. Reduced to their essentials, the Parties’ positions on this point may
be described as follows.
  63. The Respondent contends that it was not a Member of the United
Nations at the date the Application was filed and thus was not a party to
the Statute of the Court on this basis — or on any other. The Court was
therefore not “open” to it within the meaning of Article 35, paragraph 1,
of the Statute, which should be applied as of the date of filing of the

22

431         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Application, not any later date ; accordingly, the fact that it later became
a party to the Statute of the Court — in 2000, as a result of its admission
to the United Nations — is irrelevant.

   The Respondent further maintains that the Genocide Convention is
not one of the “treaties in force” referred to in the proviso in Article 35,
paragraph 2, since this term embraces only treaties in force at the date on
which the Statute itself entered into force, as the Court recognized in its
2004 Judgments in the cases concerning Legality of Use of Force. It is
moreover a fact that the Respondent has not made any declaration of the
kind contemplated by Security Council resolution 9 (1946). Consequently,
the Respondent argues, the Court is not “open” to it pursuant to Arti-
cle 35, paragraph 2, either.
   Finally, the Respondent contends that the same result obtains where
the party failing to fulfil any of the conditions set out in Article 35 of the
Statute in a particular case is the respondent as where that party is the
applicant : that is to say that the Court is precluded from exercising juris-
diction over the dispute between the two parties.

   64. The Applicant in the present case contests these arguments, its
contention being essentially as follows.
   First, the Respondent had in 1999 a status vis-à-vis the United Nations
that was sui generis, such that, albeit not a full-fledged Member, it
remained a party to the Statute of the Court and therefore had access to
it pursuant to Article 35, paragraph 1, of the Statute.
   The Applicant further contends that even assuming that the Respond-
ent was not a party to the Statute when the proceedings were initiated, it
undoubtedly became one as from 1 November 2000, when it was admit-
ted to the United Nations, and is therefore now, a party, and that is
sufficient to enable the Court to exercise jurisdiction over it. In this connec-
tion the Applicant cites the jurisprudence deriving from the 1924 Judg-
ment in the case concerning Mavrommatis Palestine Concessions (Judg-
ment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 34). It also points out that
its Memorial was filed on 1 March 2001, after the Respondent had been
admitted to the United Nations, at a date when no objection to the insti-
tution of new proceedings could have been based on Article 35.

   Finally, and again in the alternative, even if the Court were to consider
that it is not “open” to the Respondent under Article 35, paragraph 1,
of the Statute, it should hold that it is open under paragraph 2 of that
Article. The Applicant maintains that the Genocide Convention is a
“treaty in force” for purposes of Article 35, paragraph 2, making it pos-
sible for access to the Court to be given to States not parties to the
Statute. The Applicant is well aware that the Court took the opposite posi-
tion in its Judgments in 2004 in the Legality of Use of Force cases : it
nevertheless asks the Court to reconsider, and modify the interpretation
it then gave of the Statute provision in question, i.e., that “treaties in

23

432         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

force” did not embrace treaties dating from after the entry into force of
the Statute.

   65. Before proceeding with a more detailed analysis and examination
of the Parties’ arguments briefly summarized immediately above, the
Court feels that it should make a number of preliminary observations at
this point. Most of them are drawn from decisions it has rendered in the
last 15 years, a period during which the Court has had several opportu-
nities to apply Article 34 and to interpret and apply Article 35 of the Stat-
ute, by reference in fact to the legal position of the State which is the
Respondent in the present case.

   66. It should first be observed that the question whether or not a State
meets the conditions of Article 35 of the Statute can be regarded either as
an issue relating to the Court’s jurisdiction ratione personae or as an issue
preliminary to the examination of jurisdiction. The Court sees no need to
settle this debate, any more than it felt obliged to do so in its earlier deci-
sions (see, e.g., Application of the Convention on the Prevention and Pun-
ishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 100, para. 136).
Where the conditions of Article 35 are not met, the Court is without
jurisdiction to adjudicate the dispute on the merits. From this standpoint,
a Respondent raising an objection on the basis that the conditions of
Article 35 have not been met must be deemed to be making a jurisdic-
tional objection and, if the Court sustains the argument, its judgment will
be a finding of lack of jurisdiction. Thus, Serbia is here asking the Court
to decide, drawing on its arguments relating to its first preliminary objec-
tion, that it is without jurisdiction in the case.

   67. Secondly, the issue arises whether the Court, if presented with both
an objection based on one party’s lack of access to the Court and an
objection based on lack of jurisdiction ratione materiae, — or indeed,
which comes to the same thing, an objection to jurisdiction advancing
both of these grounds — must necessarily examine the two questions in a
prescribed order, so that it could not consider the second (jurisdiction
ratione materiae) until after it has answered the first (access to the Court)
in the affirmative.
   The Court addressed this issue in its 2004 Judgments in the Legality of
Use of Force cases (see, e.g., Legality of Use of Force (Serbia and Mon-
tenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports
2004 (I), pp. 298-299, para. 46). After pointing out that, as a general
rule, it remained free to select the ground on which to base its judgment
where several separate grounds were capable of leading to the same con-
clusion, and it therefore remained free to decide the order in which to
deal with these questions, the Court determined that the position was
otherwise in the matter before it. It stated that, where the applicant’s
right to access to the Court has been challenged — as it had been — this

24

433         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

“fundamental question” had to be decided before any other, because, if
the applicant was not a party to the Statute, the Court was not open to it
and accordingly it could not “properly seise . . . the Court, whatever title
of jurisdiction it might . . . invoke” (Legality of Use of Force (Serbia and
Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J.
Reports 2004 (I), pp. 298-299, para. 46).
   The Court therefore found it necessary in those cases first to examine
the question of Serbia and Montenegro’s access to the Court, so as to
determine whether the Court could “exercise its judicial function” in
respect of that State, observing that it could then examine the issues
involving jurisdiction ratione materiae and any other jurisdictional issues
“[o]nly if the answer to that [first] question is in the affirmative”.
   In the present case, even though no question arises as to seisin so far as
the Applicant is concerned, the Court considers that here also it is appro-
priate first to examine the issues relating to application of Article 35 of
the Statute.
   68. Thirdly, the Court recalls that, as it pointed out in its Judgment of
26 February 2007 in the case concerning Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), the question whether a
State may properly appear before the Court, on the basis of the Statute,
is “one which the Court is bound to raise and examine, if necessary,
ex officio, and if appropriate after notification to the parties” (I.C.J.
Reports 2007 (I), p. 94, para. 122).
   The first consequence of this is described as follows in that Judgment :

      “if the Court considers that, in a particular case, the conditions con-
      cerning the capacity of the parties to appear before it are not satis-
      fied, 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” (ibid.).

   Obviously, it does not however follow that the Court is under an obli-
gation to treat this question expressly in the reasoning in any judgment in
which it rules on a preliminary objection to jurisdiction. If neither party
has raised the issue and the Court finds that the conditions of Articles 34
and 35 are satisfied in the case, it may well choose to omit from the rea-
soning in the judgment any specific discussion of the point and to confine
itself to responding to the arguments raised by the parties. It may also
choose, if it finds appropriate, to deal with the point expressly in its
reasoning.

  If however the Court in a judgment on preliminary objections to juris-
diction rejects them and upholds jurisdiction, without saying anything on
the question of access to the Court, the conclusion may be drawn that the

25

434         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Court has perceived the conditions on access to have been satisfied. As
the Court stated in 2007 in respect of its 1996 Judgment in the same case,
dealing with the preliminary objections raised by the FRY :

         “Since . . . the question of a State’s capacity to be a party to pro-
      ceedings is a matter which precedes that of jurisdiction ratione mate-
      riae, and one which the Court must, if necessary, raise ex officio . . .
      this finding [that it had jurisdiction on the basis of Article IX of the
      Genocide Convention to adjudicate upon the dispute] must as a mat-
      ter 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.” (Application of the
      Convention on the Prevention and Punishment of the Crime of Geno-
      cide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment,
      I.C.J. Reports 2007 (I), pp. 98-99, para. 132.)
   69. The Respondent in 1996 and in 2007 was the same State as is
Respondent in the present case. The Court cannot but observe, however,
that in the present case no implicit finding that Serbia has the necessary
capacity to participate in the proceedings instituted by Croatia’s Applica-
tion can be inferred from any previous judgment of the Court. The Judg-
ment of 11 July 1996 on jurisdiction in the case concerning Application of
the Convention on the Prevention and Punishment of the Crime of Geno-
cide (Bosnia and Herzegovina v. Yugoslavia) (Preliminary Objections,
Judgment, I.C.J. Reports 1996 (II), p. 595), to which the Court gave full
effect as res judicata in its 2007 Judgment on the merits in the same case,
does not of itself have any authority as res judicata in the present case.
The question of the Respondent’s capacity must therefore be examined
de novo, in the context of the dispute now before the Court.
   The Respondent did not raise the question of its lack of capacity to
participate in proceedings in its preliminary objections. The Court
informed the Parties, by means of letters dated 6 May 2008 from the Reg-
istrar, of its wish to hear this issue addressed in the hearings and it was so
addressed ; the issue is now before the Court.

   70. The last series of preliminary observations relates to the order in
which the Court will now examine the various questions arising out of
the application of Article 35 of the Statute in the present case.
   71. As noted above, the Parties argued the question whether the Geno-
cide Convention is a “treaty in force” for purposes of Article 35, para-
graph 2, of the Statute. If the answer were in the affirmative, and pro-
vided that at the relevant date the Parties were bound vis-à-vis each other
by this Convention, including Article IX — a point to be examined later
in this Judgment —, it would follow that the Court was “open” to Serbia
pursuant to Article 35, paragraph 2, even if Serbia was not a party to the
Statute at that date and therefore did not satisfy the condition laid down
in paragraph 1.

26

435         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

   The Parties are in agreement that the Court addressed this question in
its 2004 Judgments in the Legality of Use of Force cases and answered it
in the negative. It did so on the basis of, inter alia, its examination of the
travaux préparatoires of the provision, which led it to conclude that
“treaties in force” referred only to treaties already in force at the entry
into force of the Statute and not to treaties concluded subsequently, such
as the Genocide Convention (see, e.g., Legality of Use of Force (Serbia
and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J.
Reports 2004 (I), pp. 318-324, paras. 100-114).

  The two Parties further agree that the position adopted by the Court in
those cases does not have the force of res judicata in the present case,
because those Judgments were rendered in different cases which did not
involve the same parties.
  The Parties however recognize that these findings have great bearing
for the present case, as the Court does not depart from its settled juris-
prudence unless it finds very particular reasons to do so.

   On the basis of these shared premises, the Parties reach different con-
clusions : while Croatia invites the Court to reconsider its jurisprudence
on this point and to correct the error which it claims was committed in
2004, Serbia asks the Court to maintain unchanged in the present case its
interpretation of the clause “special provisions contained in treaties in
force” in Article 35, paragraph 2.
   72. The Court deems it appropriate in the present case to examine the
question of Serbia’s access to the Court on the basis of Article 35, para-
graph 1, before any examination on the basis of paragraph 2.
   Only if the Court were to find that the Respondent was not a party to
the Statute of the Court at the relevant time — to be determined below —
and that, as a result, it did not satisfy the condition in paragraph 1,
should the Court address the question whether the Respondent can
derive its capacity to participate in the proceedings from the Genocide
Convention, on the basis of “special provisions contained in treaties in
force” within the meaning of paragraph 2.
   73. The Court thus now turns to the question of whether Serbia is or
was, at the pertinent time, a party to the Statute, which would suffice, in
any event, to confer upon it the necessary capacity to participate in pro-
ceedings before the Court, in whatever role.
   74. The starting-point for the reasoning should be the following two
observations, which are not disputed by the Parties.

  75. First, in its Judgments in 2004 in the Legality of Use of Force
cases, the Court clearly determined the legal status of the FRY, now
Serbia, over the period from the dissolution of the former SFRY
to the admission of the FRY to the United Nations on 1 November
2000.
  After recalling that the FRY’s position vis-à-vis the United Nations

27

436         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

had remained uncertain and controversial throughout that period, the
Court itself having characterized it as sui generis in its Judgment on the
Application for Revision of the Judgment of 11 July 1996 in the Case con-
cerning Application of the Convention on the Prevention and Punish-
ment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), Judg-
ment, I.C.J. Reports 2003, p. 31, para. 71), the Court recounted in detail
the history of relations between the FRY and the United Nations from
the dissolution of the former Yugoslavia until the State’s admission as a
Member of the United Nations on 1 November 2000.
  That led the Court to conclude :

         “This new development effectively put an end to the sui generis
      position of the Federal Republic of Yugoslavia within the United
      Nations, which, as the Court has observed in earlier pronounce-
      ments, had been fraught with ‘legal difficulties’ throughout the period
      between 1992 and 2000 . . . The Applicant thus has the status of
      membership in the United Nations as from 1 November 2000. How-
      ever, its admission to the United Nations did not have, and could
      not have had, the effect of dating back to the time when the Socialist
      Federal Republic of Yugoslavia broke up and disappeared ; there
      was in 2000 no question of restoring the membership rights of the
      Socialist Federal Republic of Yugoslavia for the benefit of the Fed-
      eral Republic of Yugoslavia. At the same time, it became clear that
      the sui generis position of the Applicant could not have amounted to
      its membership in the Organization.

         In the view of the Court, the significance of this new development
      in 2000 is that it has clarified 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 definitively 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 consequences of the new development since
      1 November 2000, the Court is led to the conclusion 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 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 (I), pp. 310-311, paras. 78-79).

28

437        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  76. There can be no doubt that for purposes of the present case the
aforementioned Judgments of 2004 do not have force of res judicata on
this — or any other — point, since they were given in different cases
which did not involve the same parties, as has already been noted above
with respect to another aspect of those Judgments (see paragraph 71).

   Nevertheless, it is equally certain that they may be of relevance in the
present instance, as, first, they address the legal position of the Respon-
dent in the present case during a period — from 1992 to 2000 — covering
the date of filing of the Application on which the Court must rule, and
second as was recalled above (see paragraph 53), the Court departs from
settled jurisprudence only if it is of the opinion that there are very par-
ticular reasons to do so.

   That is the first consideration to be taken in account.
   77. The second point is that, from 1 November 2000 and up to the
date of the present Judgment, the Respondent is a party to the Statute by
virtue of its status as a Member of the United Nations, that is to say pur-
suant to Article 93, paragraph 1, of the Charter, which automatically
grants to all Members of the Organization the status of party to the Stat-
ute of the Court.
   Thus, it is indisputable — and neither Party in its argument has sug-
gested otherwise — that at the present time both Croatia and Serbia have
access to the Court on the basis of Article 35, paragraph 1, of the Statute.
It undoubtedly follows that a dispute between these two States could now
be referred to the Court providing, of course, that there was a basis of
jurisdiction ratione materiae allowing for submission of the dispute to the
Court.
   Thus, had Croatia’s Application been filed on 2 November 2000,
instead of 2 July 1999, no objection to jurisdiction could have been based
on lack of access to the Court within the meaning of Article 35 of the
Statute, and the Court would simply have had to ascertain whether there
was a basis for jurisdiction ratione materiae, that is to say a legal nexus
between the Parties such that each had consented to the jurisdiction of
the Court to settle its dispute with the other.
   78. This brings the Court to address an issue of particular importance
in the present case : whether fulfilment of the conditions laid down in
Article 35 of the Statute must be assessed solely as of the date of filing of
the Application, or whether it can be assessed, at least under the specific
circumstances of the present case, at a subsequent date, more precisely at
a date after 1 November 2000.
   79. In numerous cases, the Court has reiterated the general rule which
it applies in this regard, namely : “the jurisdiction of the Court must nor-
mally be assessed on the date of the filing of the act instituting proceed-
ings” (to this effect, see 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),

29

438         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

p. 613, para. 26 ; Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 1998, p. 26, para. 44).
   Given that, as indicated above, fulfilment of the conditions of Arti-
cle 35 governs the jurisdiction of the Court — whether or not this is seen
as an element of jurisdiction ratione personae —, it is normally by refer-
ence to the date of the filing of the instrument instituting proceedings that
it must be determined whether those conditions are met.
   80. It is easy to see why this rule exists.
   If at the date of filing of an application all the conditions necessary for
the Court to have jurisdiction were fulfilled, it would be unacceptable for
that jurisdiction to cease to exist as the result of a subsequent event. In
the first place, the result could be an unwarranted difference in treatment
between different applicants or even with respect to the same applicant,
depending on the degree of rapidity with which the Court was able to
examine the cases brought before it. Further, a respondent could delib-
erately place itself beyond the jurisdiction of the Court by bringing about
an event or act, after filing of an application, as a result of which the
conditions for the jurisdiction of the Court were no longer satisfied — for
example, by denouncing the treaty containing the compromissory clause.
That is why the removal, after an application has been filed, of an ele-
ment on which the Court’s jurisdiction is dependent does not and cannot
have any retroactive effect. What is at stake is legal certainty, respect for
the principle of equality and the right of a State which has properly seised
the Court to see its claims decided, when it has taken all the necessary
precautions to submit the act instituting proceedings in time.

  Conversely, it must be emphasized that a State which decides to bring
proceedings before the Court should carefully ascertain that all the req-
uisite conditions for the jurisdiction of the Court have been met at the
time proceedings are instituted. If this is not done and regardless of
whether these conditions later come to be fulfilled, the Court must in
principle decide the question of jurisdiction on the basis of the conditions
that existed at the time of the institution of the proceedings.
  81. However, it is to be recalled that the Court, like its predecessor,
has also shown realism and flexibility in certain situations in which the
conditions governing the Court’s jurisdiction were not fully satisfied
when proceedings were initiated but were subsequently satisfied, before
the Court ruled on its jurisdiction.
  82. In its Judgment of 30 August 1924 on the objection to jurisdiction
raised by the Respondent in the Mavrommatis Palestine Concessions
case, the Permanent Court of International Justice stated thus :

      “it must . . . be considered whether the validity of the institution of
      proceedings can be disputed on the ground that the application was

30

439         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

      filed before Protocol XII [annexed to the Treaty of Lausanne] had
      become applicable. This is not the case. Even assuming that before
      that time the Court had no jurisdiction because the international
      obligation referred to in Article 11 [of the Mandate for Palestine]
      was not yet effective, it would always have been possible for
      the applicant to re-submit his application in the same terms after
      the coming into force of the Treaty of Lausanne, and in that case, the
      argument in question could not have been advanced. Even if the
      grounds on which the institution of proceedings was based were
      defective for the reason stated, this would not be an adequate reason
      for the dismissal of the applicant’s suit. The Court, whose jurisdic-
      tion is international, is not bound to attach to matters of form the
      same degree of importance which they might possess in municipal
      law. Even, therefore, if the application were premature because the
      Treaty of Lausanne had not yet been ratified, this circumstance
      would now be covered by the subsequent deposit of the necessary
      ratifications.” (Judgment No. 2, 1924, P.C.I.J., Series A, No. 2,
      p. 34.)
  Similarly, the Permanent Court said in the case concerning Certain
German Interests in Polish Upper Silesia :
        “Even if, under Article 23 [of the German-Polish Convention of
      1922, the compromissory clause invoked in the case], the existence of
      a definite dispute were necessary, this condition could at any time be
      fulfilled by means of unilateral action on the part of the applicant
      Party. And the Court cannot allow itself to be hampered by a mere
      defect of form, the removal of which depends solely on the Party
      concerned.” (Jurisdiction, Judgment No. 6, 1925, P.C.I.J., Series A,
      No. 6, p. 14.)
   In the jurisprudence of the present Court, operation of the same idea is
discernible in the Northern Cameroons (Cameroon v. United Kingdom)
case (Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 28),
and in the case concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), in the passage
stating : “It would make no sense to require Nicaragua now to institute fresh
proceedings based on the [1956] Treaty [of Friendship], which it would be
fully entitled to do.” (Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 1984, pp. 428-429, para. 83.)
   Finally, the Court was confronted more recently with a comparable
situation when it ruled on the preliminary objections in the case concern-
ing Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Prelimi-
nary Objections, Judgment, I.C.J. Reports 1996 (II), p. 595). The
Respondent argued that the Genocide Convention — the basis of juris-
diction — had only begun to apply to relations between the two Parties
on 14 December 1995, the date when, pursuant to the Dayton-Paris

31

440         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Agreement, they recognized each other, whereas the Application had
been submitted on 20 March 1993, that is to say more than two-and-a-
half years earlier.
  The Court responded to that argument as follows :
         “In the present case, even if it were established that the Parties,
      each of which was bound by the Convention when the Application
      was filed, had only been bound as between themselves with effect
      from 14 December 1995, the Court could not set aside its jurisdic-
      tion on this basis, inasmuch as Bosnia and Herzegovina might at any
      time file a new application, identical to the present one, which would
      be unassailable in this respect.” (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. 614, para. 26.)
   83. Croatia relies on this jurisprudence, which it contends can be
directly transposed to the present case. If Serbia is bound by the Geno-
cide Convention, including Article IX, as Croatia considers is the case,
and, since the Respondent has been a party to the Statute of the Court
since 1 November 2000, it follows that the Applicant could at any time
file a new application, which would be unassailable in this respect. The
reasoning of the Court in the aforementioned cases should, according to
Croatia, lead it in this case also not to oblige the Applicant to bring fresh
proceedings, so that it would disregard the fact that Serbia only became
a party to the Statute after the proceedings had been instituted. In this
respect, Croatia emphasizes the date on which it filed its Memorial,
1 March 2001.
   84. Serbia disputes these arguments, contending that the jurisprudence
in question is not applicable to the present case for two reasons. First, the
Respondent notes that in all of the precedents cited it was not the respon-
dent alone, which was unable to fulfil one of the conditions necessary for
the Court to uphold jurisdiction at the date the proceedings were insti-
tuted, but this was not a point Serbia chose to rely on. Secondly and
more importantly, according to Serbia, the jurisprudence cannot be
applied where the unmet condition concerns the capacity of a party to
participate in proceedings before the Court, in accordance with Arti-
cles 34 and 35 of the Statute, that is to say concerns a “fundamental ques-
tion” which, as the Court stated in 2004, must be examined before any
other issue of jurisdiction. Further, Serbia adds, the Court did not apply
the “Mavrommatis doctrine” in its 2004 Judgments in the Legality of Use
of Force cases, since, after finding that the Applicant was not a party to
the Statute of the Court at the date the Applications were filed and did
not therefore have the right of access to the Court, it held that it lacked
jurisdiction, even though it mentioned the fact that the Applicant had
been a Member of the United Nations since 1 November 2000. Accord-
ing to Serbia, this is explained by the fact that when the Court is seised of
a case in which either the applicant or the respondent does not fulfil the

32

441         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

conditions of Articles 34 and 35 of the Statute, it cannot regard itself as
having been “properly” seised and does not even possess the compétence
de la compétence, that is to say the jurisdiction to determine whether it
has jurisdiction to decide the merits of the dispute. In such a case, it
would be confronted with an insuperable obstacle.

    85. The Court observes that as to the first of these two arguments,
given the logic underlying the cited jurisprudence of the Court deriving
from the 1924 Judgment in the Mavrommatis Palestine Concessions case
(Judgment No. 2, 1924, P.C.I.J., Series A, No. 2), it does not matter
whether it is the applicant or the respondent that does not fulfil the con-
ditions for the Court’s jurisdiction, or both of them — as is the situation
where the compromissory clause invoked as the basis for jurisdiction
only enters into force after the proceedings have been instituted. The
Court sees no convincing reason why an applicant’s deficiency might be
overcome in the course of proceedings, while that of a respondent may
not. What matters is that, at the latest by the date when the Court decides
on its jurisdiction, the applicant must be entitled, if it so wishes, to bring
fresh proceedings in which the initially unmet condition would be ful-
filled. In such a situation, it is not in the interests of the sound adminis-
tration of justice to compel the applicant to begin the proceedings anew —
or to initiate fresh proceedings — and it is preferable, except in special
circumstances, to conclude that the condition has, from that point on,
been fulfilled.

   86. In the view of the Court, the second argument mentioned above
warrants more detailed analysis.
   First, it is true that all of the cited precedents concern cases where the
initially unfulfilled condition related to jurisdiction ratione materiae or
ratione personae in the narrow sense and not to the question of access to
the Court, which has to do with a party’s capacity to participate in any
proceedings whatever before the Court. Nevertheless, the Court cannot
endorse the radical interpretation advanced by Serbia, namely that when-
ever it is seised by a State which does not fulfil the conditions of access
under Article 35, or seised of a case brought against a State which does
not fulfil those conditions, the Court does not even have the compétence
de la compétence, the competence to decide whether or not it has jurisdic-
tion. Nothing of the sort is to be found in the 2004 Judgments cited by
Serbia during the hearings. In those Judgments, the Court did no more
than indicate that the question of access to the Court was a “fundamental
one” which needed to be examined before the others, and that if the
Applicant did not fulfil the Article 35 conditions the Court had to deduce
from that fact that it had not been “properly seised”. Not being “prop-
erly seised” does not mean that the Court lacks the competence necessary
to decide on its own jurisdiction, in other words to decide whether it has
been properly seised and whether the conditions necessary to allow it to
hear the case on the merits have been satisfied. That is true where it is the

33

442         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

applicant which, as in the Legality of Use of Force cases, does not fulfil
the conditions for access to the Court. It is true a fortiori when it is the
respondent which allegedly does not meet those conditions since in such
circumstances the act of seising the Court, performed by a State which
does have access to the Court, is not at issue : that is the case in the
present proceedings. The Court always possesses the compétence de la
competence (see Article 36, paragraph 6, of the Statute). In any event the
Court notes that Serbia asks it in its principal submission to decide by a
judgment that it lacked jurisdiction to entertain Croatia’s Application.

  87. More importantly, the Court cannot accept Serbia’s argument that
when the defect is that one party does not have access to the Court, it is
so fatal that it can in no case be cured by a subsequent event in the course
of the proceedings, for example when that party acquires the status of
party to the Statute of the Court which it initially lacked.

   As stated above, the question of access is clearly distinct from those
relating to the examination of jurisdiction in the narrow sense. But it is
nevertheless closely related to jurisdiction, inasmuch as the consequence
is exactly the same whether it is the conditions of access or the conditions
of jurisdiction ratione materiae or ratione temporis which are unmet : the
Court lacks jurisdiction to entertain the case. It is always within the con-
text of an objection to jurisdiction, as in the present case, that arguments
will be raised before the Court regarding the parties’ capacity to partici-
pate in the proceedings.

   That being so, it is not apparent why the arguments based on the
sound administration of justice which underpin the Mavrommatis case
jurisprudence cannot also have a bearing in a case such as the present
one. It would not be in the interests of justice to oblige the Applicant, if
it wishes to pursue its claims, to initiate fresh proceedings. In this respect
it is of no importance which condition was unmet at the date the pro-
ceedings were instituted, and thereby prevented the Court at that time
from exercising its jurisdiction, once it has been fulfilled subsequently.

  88. It is true that the Court apparently did not take account in its 2004
Judgments of the fact that Serbia and Montenegro had by that date
become a party to the Statute : indeed, the Court found that it lacked
jurisdiction on the sole ground that the Applicant did not have access to
the Court in 1999, when the Applications were filed, without taking its
reasoning any further.
  89. But if the Court abided in those cases strictly by the general rule
that its jurisdiction is to be assessed at the date of filing of the act insti-
tuting proceedings, without adopting the more flexible approach follow-
ing from the other decisions cited above, that is justified by particular
considerations relevant to those cases.
  It was clear that Serbia and Montenegro did not have the intention of

34

443         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

pursuing its claims by way of new applications. That State itself argued
before the Court that it was not, and never had been, bound by Arti-
cle IX of the Genocide Convention, even though that was the basis for
jurisdiction which it had initially invoked (e.g., Legality of Use of Force
(Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment,
I.C.J. Reports 2004 (I), pp. 292-293, para. 29). It is true that the Appli-
cant in those cases had let it be known that it did not intend to discon-
tinue the proceedings pending before the Court ; but, given the legal posi-
tion it was asserting from that time on as to the Genocide Convention, it
was out of the question that, in the event of judgments rejecting its appli-
cations owing to its lack of access to the Court at the date the proceed-
ings had been instituted, it would rely on the status it would then un-
doubtedly possess of party to the Statute of the Court to submit fresh
applications identical in substance to the first. On this basis, and in the
particular circumstances of those cases, there would have been no justi-
fication for the Court to disregard the FRY’s initial lack of capacity to
seise the Court, on the ground that the defect had been cured in the
course of the proceedings. As stated above (see paragraph 85), it is con-
cern for judicial economy, an element of the requirements of the sound
administration of justice, which justifies application of the jurisprudence
deriving from the Mavrommatis Judgment in appropriate cases. The pur-
pose of this jurisprudence is to prevent the needless proliferation of pro-
ceedings. No such consideration obtained in 2004 to justify the Court
departing at that time from the principle holding that its jurisdiction
must be established at the date of filing of the applications. Indeed, Ser-
bia and Montenegro took care not to ask the Court to do so ; while
Croatia is asking the Court to apply the jurisprudence of the Mavrom-
matis case to the present case, no such request was made, or could logi-
cally have been made, by the Applicant in 2004.
   90. Two additional considerations lend weight to the conclusion that
there is reason, in the circumstances of the present case, to look beyond
the legal situation prevailing at the date of the Application.
   First, while, as noted above (see paragraph 80), a State filing an appli-
cation with the Court should normally be expected to demonstrate suffi-
cient care to avoid doing so prematurely, it cannot be said that the Appli-
cant in the current proceedings has shown any careless approach in this
regard. At the date the Application was filed, the Respondent considered
that it had the capacity to participate in proceedings before the Court,
and its position in that respect was a matter of public knowledge.
In April 1999, the FRY had filed Applications instituting proceedings
against ten Member States of the North Atlantic Treaty Organization
invoking Article IX as a basis of jurisdiction. The Applicant could there-
fore feel entitled to seise the Court on what at first sight seemed to be an
appropriate basis of jurisdiction. It is of course true that, as stated above
(see paragraph 67), questions of access to the Court, unlike those of con-
sent to its jurisdiction, are not matters of the will of the parties. However,
Croatia’s conduct does not reflect any circumstances that would warrant

35

444        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

a particularly strict application by the Court of the jurisprudence
described above.

  Secondly, it should be noted that, while Croatia’s Application — a
short text comprising some ten pages — was filed on 2 July 1999, that is
prior to the admission of the FRY to the United Nations on 1 Novem-
ber 2000, its Memorial on the merits, a document of 414 pages, was sub-
mitted on 1 March 2001, after that date.
  Although it is not possible to equate the filing of a memorial with that
of an instrument instituting proceedings, since by definition a memorial
concerns proceedings which are already under way, it should be noted
that the Memorial is of considerable importance, not just because it
expounds the Applicant’s arguments, but also because it specifies the sub-
missions. While this cannot be considered a decisive element, it cannot be
entirely ignored : if Croatia had submitted the substance of its Memorial,
on 1 March 2001, in the form of a new application, as it could have done,
no question with respect to Article 35 of the Statute would have arisen.

   91. The Court accordingly concludes that on 1 November 2000 the
Court was open to the FRY. Therefore, should the Court find that Serbia
was bound by Article IX of the Convention on 2 July 1999, the date on
which proceedings in the present case were instituted, and remained
bound by that Article until at least 1 November 2000, the Court would be
in a position to uphold its jurisdiction.
   This question will be examined in the next section.
   92. In view of the above finding, the question whether the conditions
laid down in Article 35, paragraph 2, have been fulfilled (see para-
graph 71 above) has no pertinence in the present case.

                                    *   *
               (2) Issues of jurisdiction ratione materiae
   93. The Court now turns to the question of its jurisdiction ratione
materiae, which forms the second aspect of the first preliminary objection
submitted by Serbia requesting the Court to declare that it lacks jurisdic-
tion. According to Serbia, this aspect is an element of jurisdiction ratione
personae.
   94. The basis of jurisdiction asserted by Croatia is Article IX of the
Genocide Convention, which provides as follows :
         “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.”
It is common ground between the Parties that Croatia is, and has been at

36

445         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

all relevant times, a party to the Genocide Convention, and has not made
any reservation excluding the application of Article IX. Croatia depos-
ited a notification of succession with the Secretary-General of the United
Nations on 12 October 1992. It asserted that it had already been a party
prior thereto as a successor State to the SFRY from the date it assumed
responsibility for its international relations with respect to its territory,
namely from 8 October 1991. Serbia’s objection is to the effect that it was
not itself a party to that Convention at the date of filing of the Applica-
tion instituting proceedings (2 July 1999) ; it maintains that it only
became a party by accession in June 2001. Furthermore the notification
of accession by the FRY, dated 6 March 2001 and deposited on
12 March 2001, contained a reservation to the effect that the FRY “does
not consider itself bound by Article IX of the Convention” (see the text
in paragraph 116 below). When the Secretary-General, the depositary of
the Convention, notified States parties of the FRY’s notification of acces-
sion, objections were made by Croatia (as well as by Bosnia and Herze-
govina, and by Sweden) ; the ground of Croatia’s objection was that the
FRY “is already bound by the Convention since its emergence as one of
the five equal successor States” of the former SFRY. Croatia also objected
to the reservation made by the FRY to the application of Article IX of
the Convention, on the grounds that in the view of Croatia it was
“incompatible with the object and purpose of the Convention”.

   95. If, as Croatia contends, Serbia was already a party to the Genocide
Convention at the date when the present proceedings were instituted, any
change in the situation which might have been effected by the 2001 pur-
ported accession by the FRY or by the reservation attached to it could
not deprive the Court of the jurisdiction already existing under Article IX
of the Convention. The Court recalls that according to its established
jurisprudence, if a title of jurisdiction is shown to have existed at the date
of the institution of proceedings, any subsequent lapse or withdrawal of
the jurisdictional instrument is without effect on the jurisdiction of the
Court. The principle was established in the Nottebohm case (Liechten-
stein v. Guatemala) (Preliminary Objection, Judgment, I.C.J. Reports
1953, p. 122), which related to an acceptance of compulsory jurisdiction
(under the optional clause of Article 36, paragraph 2, of the Statute)
which expired on a date subsequent to the institution of proceedings cit-
ing that acceptance as the basis of jurisdiction. It has subsequently been
consistently applied (e.g., where a bilateral treaty relied on as jurisdic-
tional basis had been terminated by the time the Court came to give judg-
ment on the merits of the case (Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, p. 28, para. 36)).
   96. If therefore the FRY was a party to the Genocide Convention,
including its Article IX, on 2 July 1999, the date on which proceedings
were instituted, and if it continued to be bound by Article IX of the Con-

37

446         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

vention until at least 1 November 2000, the date on which the FRY
became a party to the Statute of the Court, then, the Court today con-
tinues to have jurisdiction.
   It is thus not necessary for the Court to make a finding as to any legal
effect of the notification of accession to the Convention by Serbia dated
6 March 2001.
   97. The reasons why it is disputed between the Parties whether Serbia
was a party to the Convention on the date on which these proceedings
were instituted are bound up with the history of the relationship to the
Convention of, first, the SFRY, and, subsequently, of the Respondent.
   The SFRY signed the Genocide Convention on 11 December 1948,
and deposited an instrument of ratification, without reservation, on
29 August 1950 ; it is common ground between the Parties that the SFRY
was thus a party to the Convention at the time in the 1990s when it began
to disintegrate into separate and independent States. The process of dis-
integration of the SFRY, the appearance of its former constituent Repub-
lics as separate States, and the efforts of the FRY to have its claim to
continue the State, international legal and political personality of the
SFRY internationally recognized, have been described in detail in para-
graphs 43 to 51 above and in a number of previous decisions of the Court
(most recently in the case concerning Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I),
pp. 79-80, paras. 88-99). In the present case, Croatia asserts first that
the FRY was a party by succession to the Genocide Convention from the
beginning of its existence as a State, since succession, unlike other modes
of becoming bound by a treaty, is retrospective to the commencement of
the successor State ; it also relies, in support of its arguments in favour of
jurisdiction, on a formal declaration adopted on behalf of the FRY on
27 April 1992, and an official Note of the same date transmitted with that
declaration to the Secretary-General of the United Nations.

  98. The declaration of 27 April 1992 was made in the name of “the
representatives of the people of the Republic of Serbia and the Republic
of Montenegro” and according to Serbia it was adopted by “an ad hoc
body consisting of members of the Assembly of the SFRY, the National
Assembly of the Republic of Serbia and of the Assembly of the Republic
of Montenegro” ; see also Ann. 13 to POS, heading ; and signature clause.
In that declaration the representatives stated that :

         “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 Socialist Federal Republic of Yugoslavia assumed interna-
      tionally.

38

447         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

         At the same time, it is ready to fully respect the rights and inter-
      ests of the Yugoslav Republics which declared independence. The
      recognition of the newly-formed states will follow after all the out-
      standing questions negotiated on within the Conference on Yugosla-
      via have been settled . . .” (United Nations doc. A/46/915, Ann. II.)

  99. Similarly, the Note of 27 April 1992 from the Permanent Mission
of Yugoslavia to the Secretary-General of the United Nations contained
the following :
         “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.)

   100. The FRY thus did not consider itself to be one of the successor
States of the SFRY emerging from the dissolution of that State, but the
sole continuing State, maintaining the personality of the former SFRY,
with the implication that the other States formed from the former Yugo-
slavia were new States, though entitled to assert the rights of successor
States. This policy of the FRY was maintained until a change of Gov-
ernment in 2000, and a subsequent application to the United Nations for
admission as a new Member (see paragraphs 50-51 above and 116 below).

   The 1992 declaration and Note should not of course be viewed in iso-
lation ; their effect must be assessed in the light of, in particular, the con-
duct of the FRY at the time of making of the declaration and subse-
quently, and that aspect will be examined below (paragraphs 114-117).
   101. On the basis of the historical record, and of the declaration and
Note of 27 April 1992, Croatia maintains that Serbia was a party to the
Genocide Convention on 2 July 1999 on the same terms as the SFRY had
been, namely without reservation, and that accordingly Article IX con-
fers jurisdiction on the Court in the present case. In its Application,

39

448        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Croatia based its arguments in this respect on the rules of international
law concerning succession of States. In its Written Statement on the Pre-
liminary Objections of Serbia, it invoked primarily the decision of the
Court of 3 February 2003 in the case concerning 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 (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objec-
tions (Yugoslavia v. Bosnia and Herzegovina), in which the status of the
FRY vis-à-vis the United Nations has been in issue. In the course of the
oral proceedings, it indicated that it was also relying in the alternative on
the declaration and Note of 27 April 1992. It will be convenient to exam-
ine first this alternative argument based on the events of 1992, before pro-
ceeding, if necessary, to the wider question of the application in this case
of the general law relating to succession of States, since if Croatia’s con-
tentions as to the effect of the declaration and Note are accepted, the
need does not arise for the Court further to address the arguments put to
it by the Parties concerning the rules of international law governing State
succession to treaties including the question of ipso jure succession to
some multilateral treaties.

   102. Croatia submitted not only that Serbia was bound by the Geno-
cide Convention from the beginning of the conflict between Bosnia and
Herzegovina and the FRY, that is to say from a date prior to the
1992 declaration, but that the Court has confirmed that this was so on six
occasions in the course of that period, namely in 1993 (twice), 1996, 1999,
2003 and 2007, i.e., in the Orders and Judgments in the case concerning
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)
on the requests for the indication of provisional measures (1993), on pre-
liminary objections (1996) and on the merits (2007), in the Judgment on
the Application for Revision of the Judgment of 11 July 1996 in that
case (2003), and in the Orders on the requests for the indication of pro-
visional measures in the Legality of Use of Force cases (1999). Croatia
submitted that to hold that the FRY was not bound by the Genocide
Convention on 2 July 1999 “would reverse 15 years of jurisprudence and
call into question the basis for the Court’s decisions” in the case concern-
ing Application of the Convention on the Prevention and Punishment of
the Crime of Genocide brought by Bosnia and Herzegovina.

   103. Croatia argues that these decisions are relevant because the “sol-
emn commitment” given by the FRY in the 1992 declaration has been
relied on by the FRY itself in proceedings before this Court, and has
been relied on by the Court, so that Croatia also was entitled to rely on
it, and has done so. The significance of the attitude adopted by the FRY
in previous proceedings will be examined below (see paragraph 114).
   104. As for the Court itself, it was observed in paragraphs 52 to 56
above, these decisions do not have the status of res judicata in the present

40

449        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

proceedings. In general the Court does not choose to depart from previ-
ous findings, particularly when similar issues were dealt with in the earlier
decisions, as in the current case, unless it finds very particular reasons to
do so. It is on that basis therefore that the Court will consider the argu-
ments of the Parties on the matters which, it is argued, were covered by
those previous decisions.

   105. The question what effects might, in law, result from the fact that
Croatia might have thought it possible, in good faith, to rely on the com-
mitment given in those documents, can be reserved for the present. The
Court will first examine what was the nature and effect of the 1992 dec-
laration and Note on the position of the FRY in relation to the Genocide
Convention.
   106. Serbia argues that the declaration of 27 April 1992 described in
paragraph 98 above was not capable of constituting a notification of suc-
cession to the Genocide Convention, for three reasons. First, any notifi-
cation of succession just like any other relevant treaty action must ema-
nate, in order to be valid, from a person being able to represent the State
concerned (cf. Article 7 of the Vienna Convention on the Law of Trea-
ties). The 1992 declaration was however, Serbia contends, adopted by an
ad hoc body consisting of members of the Assembly of the SFRY, the
National Assembly of the Republic of Serbia, and of the Assembly of the
Republic of Montenegro. Secondly, as confirmed by uniform depositary
practice, specific notifications are necessary in order to bring about suc-
cession, in other words a notification of succession must specify precisely
which treaty it is directed to ; and the 1992 declaration was entirely gen-
eral in its terms (“all the commitments that the SFR of Yugoslavia
assumed internationally”). Thirdly, any notification of succession, in
order to be an effective one, must be transmitted to the depositary ; the
1992 declaration and Note were however transmitted to the Secretary-
General of the United Nations (the depositary of the Genocide Conven-
tion) to be circulated as an official document of the General Assembly,
and were thus clearly not addressed to him in his function as depositary.

   107. In relation to the first point, the Court notes that the assembly
that adopted the 1992 declaration was the same that “promulgated the
Constitution of the Federal Republic of Yugoslavia”, as indicated in the
Note of 27 April 1992 (see paragraph 99 above). In any event the Note
transmitting the declaration to the Secretary-General of the United
Nations, was formally communicated by the Chargé d’affaires a.i. of the
Permanent Mission of Yugoslavia to the United Nations, and was
accepted by the Secretary-General, and circulated as such as an official
document of the General Assembly. While at the time objection was
taken to the claim of the FRY to be the continuator of the SFRY, it was

41

450        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

not then suggested that that claim was not advanced by the appropriate
representative body of the FRY, or conveyed to the Secretary-General by
an unauthorized representative. Furthermore, as the Court will elaborate
more fully below (see paragraphs 114-115), there can be no doubt, from
the subsequent conduct of those charged with the affairs of the FRY,
that the declaration was regarded by the State as made on its behalf, and
the commitments contained in it were endorsed and accepted by the
FRY.

   108. In respect of the second argument, the Court must first consider
whether the 1992 declaration and Note were “made in sufficiently specific
terms in relation to the particular question” of acceptance to be bound by
international treaty obligations (cf. Armed Activities on the Territory of
the Congo (New Application : 2002) (Democratic Republic of the
Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 2006, pp. 28-29, para. 52). The Court notes that the 1992 declaration
and Note did not merely state that the FRY would abide by certain com-
mitments : it specified that these were the commitments “that the SFR of
Yugoslavia assumed internationally” or “in international relations”.
While the treaties contemplated were not specified by name, the declara-
tion referred to a class of instruments which was perfectly ascertainable
at the moment of making of the declaration : the treaty “commitments”
binding on the SFRY at the moment of its dissolution. There is no doubt
that the Genocide Convention was one of these “commitments”. While
the practice of making declarations of succession to a treaty or treaties
with an indication of the treaty or treaties to which they are intended to
relate is of undoubted practical usefulness, the Court is unable to hold
that international law regards as wholly ineffective an instrument that
identifies by general reference the treaty to which it is addressed, rather
than by designating it by its particular name.

   109. In the view of the Court, there is a distinction between the legal
nature of ratification of, or accession to a treaty, on the one hand, and on
the other, the process by which a State becomes bound by a treaty as a
successor State or remains bound as a continuing State. Accession or
ratification is a simple act of will on the part of the State manifesting an
intention to undertake new obligations and to acquire new rights in terms
of the treaty, effected in writing in the formal manner set out in the
Treaty (cf. Articles 15 and 16 of the Vienna Convention on the Law of
Treaties). In the case of succession or continuation on the other hand, the
act of will of the State relates to an already existing set of circumstances,
and amounts to a recognition by that State of certain legal consequences
flowing from those circumstances, so that any document issued by the
State concerned, being essentially confirmatory, may be subject to less
rigid requirements of form. Article 2 (g) of the 1978 Vienna Convention
on Succession of States in respect of Treaties reflects this idea, defining a

42

451         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

“notification of succession” as meaning “in relation to a multilateral
treaty, any notification, however framed or named, made by a successor
State expressing its consent to be considered as bound by the treaty”.
Nor does international law prescribe any specific form for a State to
express a claim of continuity.

   110. In respect of both the second and the third arguments advanced
by Serbia, the Court notes that the 1992 declaration was not expressed in
the terms of one of the recognized legal acts by which a State may
become a party to a multilateral convention. It observes, however, that in
order to constitute a valid and effective means by which the declaring
State could assume obligations under the Convention, the declaration
need not strictly comply with all formal requirements. For example, in
the North Sea Continental Shelf (Federal Republic of Germany/Den-
mark ; Federal Republic of Germany/Netherlands) cases, the Court recog-
nized the possibility that a State that had not carried out the usual for-
malities (ratification, accession) to become bound by the régime of an
international convention might nevertheless “somehow become bound in
another way”, even though such a process was “not lightly to be pre-
sumed” to have occurred. This did not in the event prove to have hap-
pened in those cases (Judgment, I.C.J. Reports 1969, p. 25, paras. 27 and
28). In the present case, the Court has to consider whether the 1992 dec-
laration and Note, coupled with other consistent conduct of Serbia,
indicate such a unilateral acceptance of the obligations of the Genocide
Convention, by a process equivalent, in the special circumstances of this
case, to a succession to the SFRY as regards to the Convention.

   111. For the purposes of the present case, the Court points out first
and foremost that the FRY in 1992 clearly expressed an intention to be
bound — or, consistently with the view of the legal situation it then held,
to continue to be bound — by the obligations of the Genocide Conven-
tion. The FRY was then claiming to be the continuator State of the
SFRY, but it did not repudiate its status as a party to the Convention
even when it became apparent that that claim would not prevail, and that
the FRY was regarded by other States, particularly by those that had
emerged from the dissolution of the former Yugoslavia, as simply one of
the successor States of the SFRY. In the particular context of the case,
the Court is of the view that the 1992 declaration must be considered as
having had the effects of a notification of succession to treaties, notwith-
standing that its political premise was different. It is clear that the opera-
tive part of the 1992 declaration, the acceptance of “all the commitments
that the Socialist Federal Republic of Yugoslavia assumed internation-
ally”, had been drawn up in the light of its assertion, made in the declara-
tion and in the Note of the Permanent Mission, of “the continuity of the
international personality of Yugoslavia”, and this was linked with the
claim of the FRY to continue the membership of the SFRY in the United

43

452         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Nations. There was however no indication that the commitment under-
taken would be conditional on acceptance of the claim of continuity.
That claim did not in fact prevail. Nonetheless, the conduct of Serbia
after the transmission of the declaration made it clear that it regarded
itself bound by the Genocide Convention.

   112. Serbia has however drawn the attention of the Court to Arti-
cle XI of the Genocide Convention, which provides that :
        “The present Convention shall be open until 31 December 1949
      for signature on behalf of any Member of the United Nations and of
      any non-member State to which an invitation to sign has been
      addressed by the General Assembly.
        The present Convention shall be ratified, and the instruments of
      ratification shall be deposited with the Secretary-General of the
      United Nations.
        After 1 January 1950, the present Convention may be acceded to
      on behalf of any Member of the United Nations and of any non-
      member State which has received an invitation as aforesaid.

       Instruments of accession shall be deposited with the Secretary-
      General of the United Nations.”
Serbia contends the following :
        “Before it became a Member of the United Nations on 1 Novem-
      ber 2000 as a new State, the Respondent was not even qualified to be
      a party to the Genocide Convention. Since it was not [prior to that
      date] a Member of the United Nations, it could only have become a
      party upon an invitation extended under Article XI. It is an undis-
      puted fact that the FRY never received such an invitation.”

   113. The Court observes that Article XI, according to its terms, does
not exclude States not Members of the United Nations from being
parties to the Genocide Convention, as Serbia suggests ; it provides sim-
ply that non-signatory States may only accede to the Convention if they
are United Nations Member States or States who have received an invita-
tion from the General Assembly. The text does not make any reference to
continuation of, or succession to, the treaty rights and obligations of a
predecessor State, in the manner and on the conditions recognized in
international law. In the case concerning the Application of the Conven-
tion on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), the question was raised
whether a “Notice of Succession” to the Convention transmitted by Bos-
nia and Herzegovina was not to be treated as an accession, to which Arti-
cles XI and XIII of the Convention would apply. The Court held that
Bosnia and Herzegovina had become a party to the Convention by way
of succession, and concluded from this that “the question of the applica-

44

453         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

tion of Articles XI and XIII of the Convention does not arise” (Prelimi-
nary Objections, Judgment, I.C.J. Reports 1996 (II), p. 612, para. 24).

   114. The position adopted by the FRY itself in relation to the Conven-
tion has already been referred to, and is clearly conduct that must be
taken into account by the Court. As early as 1993, in the context of the
first request for the indication of provisional measures in the proceedings
brought against it by Bosnia and Herzegovina, the FRY, while question-
ing whether the applicant State was a party to the Genocide Convention
at the relevant dates, did not challenge the claim that it was itself a party,
and itself presented a request for the indication of provisional measures,
referring to Article IX of the Convention. On this basis, the Court in its
Order found that “both Bosnia-Herzegovina and Yugoslavia are parties”
to the Convention (Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugo-
slavia (Serbia and Montenegro)), Provisional Measures, Order of
8 April 1993, I.C.J. Reports 1993, p. 16, para. 26), and cited the 1992 decla-
ration and Note (ibid., p. 15, paras. 22-23). Moreover, in the same case,
at the preliminary objections stage, the FRY argued that the Genocide
Convention had begun to apply to relations between the two Parties on
14 December 1995, as recalled above (see paragraph 82), having itself
continued the rights and duties, under (inter alia) that Convention,
established by the SFRY. Furthermore, on 29 April 1999 the FRY filed
in the Registry of the Court Applications instituting proceedings against
ten States Members of NATO, citing (inter alia) the Genocide Conven-
tion as title of jurisdiction (see, for example, Legality of Use of Force
(Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment,
I.C.J. Reports 2004 (I), pp. 283-284, para. 1).

   115. This was still the situation when on 2 July 1999 Croatia filed the
Application instituting the present proceedings. During the period
between the making of the 1992 declaration and that date, neither the
FRY nor any other State for which the issue might have had significance
questioned that the FRY was a party to the Genocide Convention, with-
out reservations ; and no other event occurring during that period had
any impact on the legal situation arising from the 1992 declaration. On
1 November 2000, the FRY was admitted as a new Member of the
United Nations, as it had requested by a letter addressed to the Secre-
tary-General by the President of the FRY dated 27 October 2000, “in
light of the implementation of Security Council resolution 777 (1992)”
(United Nations doc. A/55/528-S/2000/1043). As the Court observed in
its Judgments in the cases concerning the Legality of Use of Force, “[t]his
new development effectively put an end to the sui generis position of the
Federal Republic of Yugoslavia within the United Nations . . .” (Legality
of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objec-
tions, Judgment, I.C.J. Reports 2004 (I), p. 310, para. 78). Nevertheless,
the FRY did not at that time withdraw, or purport to withdraw, the dec-

45

454         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

laration and Note of 1992, which had been drawn up in the light of the
contention that the FRY was continuing the legal personality of the
SFRY. It did not, for example, suggest that the failure of that contention
to gain acceptance had entailed the nullity of the declaration, or cessation
of the commitment to the international obligations contemplated by it.
   116. It was not until March 2001 that the FRY took any further step
inconsistent with the status which it had since 1992 been claiming to pos-
sess, namely that of a State party to the Genocide Convention. On
12 March 2001 it deposited with the Secretary-General a notification of
accession to the Genocide Convention, which, after referring to the 1992
declaration and to the subsequent admission of the FRY to the United
Nations as a new Member, contained the following :
         “NOW it has been established that the Federal Republic of Yugo-
      slavia has not succeeded on April 27, 1992, or on any later date, to
      treaty membership, rights and obligations of the Socialist Federal
      Republic of Yugoslavia in the Convention on the Prevention and
      Punishment of the Crime of Genocide on the assumption of contin-
      ued membership in the United Nations and continued state, inter-
      national legal and political personality of the Socialist Federal
      Republic of Yugoslavia . . .”

The notification of accession contained the following reservation :
        “‘The Federal Republic of Yugoslavia does not consider itself
      bound by Article IX of the Convention . . . and, therefore, before
      any dispute to which the Federal Republic of Yugoslavia is a party
      may be validly submitted to the jurisdiction of the International
      Court of Justice under this Article, the specific and explicit consent
      of the FRY is required in each case.’”
   However, the Court notes also that on that same date, the FRY depos-
ited with the Secretary-General of the United Nations declarations of
succession to a large number of other multilateral conventions of which
the Secretary-General is depositary. This practice of the FRY was fully
consistent with that of the other former States emerging from the dissolu-
tion of the SFRY, which also saw themselves as successors to that State,
and thus had, during the period from 1991 on, notified their succession to
those conventions. There was indeed (other than the accession of the
FRY to the Genocide Convention) only one exception to that very exten-
sive and consistent body of practice.
   117. In sum, in the present case the Court, taking into account both
the text of the declaration and Note of 27 April 1992, and the consistent
conduct of the FRY at the time of its making and throughout the years
1992-2001, considers that it should attribute to those documents precisely
the effect that they were, in the view of the Court, intended to have on
the face of their terms : namely, that from that date onwards the FRY

46

455        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

would be bound by the obligations of a party in respect of all the multi-
lateral conventions to which the SFRY had been a party at the time of its
dissolution, subject of course to any reservations lawfully made by the
SFRY limiting its obligations. It is common ground that the Genocide
Convention was one of these conventions, and that the SFRY had made
no reservation to it ; thus the FRY in 1992 accepted the obligations of
that Convention, including Article IX providing for the jurisdiction of
the Court and that jurisdictional commitment was binding on the Respon-
dent at the date the present proceedings were instituted. In the events that
have occurred, this signifies that the 1992 declaration and Note had the
effect of a notification of succession by the FRY to the SFRY in relation
to the Genocide Convention. The Court concludes that, subject to the
more specific objections of Serbia to be examined below, it had, on the
date on which the present proceedings were instituted, jurisdiction to
entertain the case on the basis of Article IX of the Genocide Convention.
That situation continued at least until 1 November 2000, the date on
which Serbia and Montenegro became a Member of the United Nations
and thus a party to the Statute of the Court.

  Accordingly, there is no need to consider the contentions of Croatia
based on more general issues relating to the rules of international law
concerning succession of States to treaties, referred to in paragraph 101
above.

                                   *   *
                             (3) Conclusions
   118. The Court recalls that it held earlier in this Judgment (see para-
graph 91) that the Respondent acquired the status of party to the Statute
of the Court on 1 November 2000. The Court further held that if it could
be established that the Respondent was also a party to the Genocide
Convention, including Article IX, on the date of the institution of the
proceedings and until at least 1 November 2000, and if consequently the
Applicant would have been at liberty, had it so desired, to submit a fresh
application identical in substance to the present Application, the condi-
tions for the jurisdiction of the Court would be satisfied.
   The Court has now found that the Respondent was bound by the
Genocide Convention, including Article IX thereof, at the date of the
institution of the proceedings and remained so bound at least until
1 November 2000.
   119. Having established that the conditions for the Court’s jurisdic-
tion are met and without prejudice to its findings on the other prelimi-
nary objections submitted by Serbia, the Court concludes that the first
preliminary objection, “that the Court lacks jurisdiction”, must be
rejected.

                                  * * *
47

456         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

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

   120. The Court therefore now turns to the second preliminary objec-
tion as stated in Serbia’s final submission 2 (a), namely the objection
that “claims based on acts and omissions which took place prior to
27 April 1992”, that is to say prior to the formal establishment of the
“Federal Republic of Yugoslavia (Serbia and Montenegro)”, the name
by which the present Serbia was formerly known, “are beyond the juris-
diction of this Court and inadmissible”. The preliminary objection is thus
presented as, at one and the same time, an objection to jurisdiction and
one going to the admissibility of the claims. A distinction between these
two kinds of objections is well recognized in the practice of the Court. In
either case, the effect of a preliminary objection to a particular claim is
that, if upheld, it brings the proceedings in respect of that claim to an
end ; so that the Court will not go on to consider the merits of the claim.
If the objection is a jurisdictional objection, then since the jurisdiction of
the Court derives from the consent of the parties, this will most usually
be because it has been shown that no such consent has been given by the
objecting State to the settlement by the Court of the particular dispute. A
preliminary objection to admissibility covers a more disparate range of
possibilities. In the case concerning Oil Platforms (Islamic Republic of
Iran v. United States of America) the Court noted that :

         “Objections to admissibility normally take the form of an asser-
      tion that, even if the Court has jurisdiction and the facts stated
      by the applicant State are assumed to be correct, nonetheless
      there are reasons why the Court should not proceed to an
      examination of the merits.” (Judgment, I.C.J. Reports 2003, p. 177,
      para. 29.)
Essentially such an objection consists in the contention that there exists
a legal reason, even when there is jurisdiction, why the Court should
decline to hear the case, or more usually, a specific claim therein.
Such a reason is often of such a nature that the matter should be resolved
in limine litis, for example where without examination of the merits
it may be seen that there has been a failure to comply with the rules
as to nationality of claims ; failure to exhaust local remedies ; the
agreement of the parties to use another method of pacific settlement ;
or mootness of the claim. If the Court finds that an objection “does
not possess, in the circumstances of the case, an exclusively
preliminary character” (Article 79, paragraph 7, of the Rules of Court
as adopted on 14 April 1978), it will be dealt with at the merits stage.
Challenges either to jurisdiction or to admissibility are sometimes
in fact presented along with arguments on the merits, and argued and
determined at that stage (cf. East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports 1995, p. 92, para. 4 ; Avena and Other Mexican

48

457          APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Nationals (Mexico v. United States of America), Judgment, I.C.J.
Reports 2004 (I), pp. 28-29, para. 24).

   121. As set out above, Serbia’s preliminary objection, as stated in its
final submission 2 (a), is presented as relating both to the jurisdiction of
the Court and to the admissibility of the claim. The title of jurisdiction
relied on by Croatia is Article IX of the Genocide Convention, and the
Court has established above that Croatia and Serbia were both parties to
that Convention on the date on which proceedings were instituted
(2 July 1999). Serbia’s contention is however that the Court has no juris-
diction under Article IX, or that jurisdiction cannot be exercised, so far
as the claim of Croatia concerns “acts and omissions that took place
prior to 27 April 1992”, i.e., that the Court’s jurisdiction is limited
ratione temporis. Serbia advanced two reasons for this : first, because 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 ;
and secondly, because “the Genocide Convention including the jurisdic-
tional clause contained 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. Serbia therefore contended
that acts or omissions which took place before the FRY came into exist-
ence cannot possibly be attributed to the FRY.

   122. In that respect, Croatia has drawn the attention of the Court to
the fact that a similar question of jurisdiction ratione temporis under the
Genocide Convention in respect of the events in the former Yugoslavia
was dealt with by the Court in the case concerning the Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), in response to two of the pre-
liminary objections of the FRY. In that Judgment the Court found that

         “Yugoslavia, basing its contention on the principle of the non-
      retroactivity of legal acts, has . . . asserted . . . that, even though the
      Court might have jurisdiction on the basis of the [Genocide] Con-
      vention, it could only deal with events subsequent to the different
      dates on which the Convention might have become applicable as
      between the Parties. In this regard, the Court will confine itself to the
      observation that the Genocide Convention — and in particular Arti-
      cle IX — does not contain any clause the object or effect of which is
      to limit in such manner the scope of its jurisdiction ratione temporis,
      and nor did the Parties themselves make any reservation to that end,
      either to the Convention or on [a later possible opportunity]. The
      Court thus finds that it has jurisdiction in this case to give effect to
      the Genocide Convention with regard to the relevant facts which
      have occurred since the beginning of the conflict which took place in
      Bosnia and Herzegovina.” (I.C.J. Report 1996 (II), p. 617, para. 34 ;
      emphasis added.)

49

458        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

   Croatia argues that the same reasoning should also be applicable in the
present case, and therefore invites the Court to dismiss the Serbian objec-
tion.
   123. The Court observes however that the temporal questions to be
resolved in the present case are not the same as those dealt with by the
Court in 1996. At that time, the Court had merely to determine, first
whether, at the date that the proceedings in the case were instituted, the
Genocide Convention had become applicable between the FRY and Bos-
nia and Herzegovina, and secondly whether in the exercise of its jurisdic-
tion it was limited to dealing only with events subsequent to the date or
dates on which the Convention might thus have become applicable. That
date was, or those dates were, in any event subsequent to the moment at
which the FRY had come into existence and had thus become capable of
being itself a party to the Convention. Therefore the finding of the Court
that it had jurisdiction “with regard to the relevant facts which have
occurred since the beginning of the conflict” (that is to say not merely
facts subsequent to the date when the Convention became applicable
between the parties) was not addressed to the question whether these
included facts occurring prior to the coming into existence of the FRY.
In the present case, the Court therefore cannot draw from that judgment
(which, as already noted, does not have the authority of res judicata in
the present proceedings) any definitive conclusion as to the temporal
scope of the jurisdiction it has under the Convention. At the same time,
the Court notes, as it did in 1996, that there is no express provision in the
Genocide Convention limiting its jurisdiction ratione temporis.

   124. Another circumstance distinguishing the present case from the
case between Bosnia and Herzegovina and the FRY is that in the present
case Serbia’s objection is presented as relating both to the Court’s juris-
diction and to matters of admissibility of the claims of Croatia. In par-
ticular, the Court notes that, in the present case, the Parties advanced
arguments relating to the consequences to be drawn from the fact that
the FRY only became a State and a party to the Genocide Convention
on 27 April 1992, not only with regard to its jurisdiction but also with
regard to the attribution to Serbia of acts that occurred before that date.
Serbia contended that, not having been a State before 27 April 1992, acts
that occurred before that date cannot be attributed to it and that, not
having been a party to the Convention, it could not have breached any
obligation under it. In the Court’s view the question of the temporal
scope of its jurisdiction is closely bound up with these questions of attri-
bution, presented by Serbia as a matter of admissibility rather than of
jurisdiction, and thus has to be examined in the light of these issues. The
Court therefore now turns to the aspect of the objection related to issues
of attribution of acts that occurred prior to 27 April 1992.
   125. In its Memorial, Croatia referred to the temporal element and
contended that “the fact that the FRY only formally proclaimed itself on
27 April 1992 does not mean that acts occurring prior to that date cannot

50

459        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

be attributed to it”. It invoked what it referred to as a well-established
principle that “a state in statu nascendi is responsible for conduct carried
out by its officials and organs or otherwise under its direction and
control”. Croatia indicated that it relies on the rule stated in Article 10,
paragraph 2, of the International Law Commission’s Articles on the State
Responsibility (Annex to General Assembly resolution 56/83, 12 Decem-
ber 2001, hereinafter referred to as “the ILC Articles on State Responsi-
bility”), that “the conduct of a movement insurrectional or other which
succeeds in establishing a new State shall be considered an act of the new
State under international law”.

   126. In its preliminary objections Serbia contended that “[a]cts or
omissions which took place before the FRY came into existence cannot
possibly be attributed to the FRY” ; it denies that Croatia has been able
to demonstrate that the FRY was a State in statu nascendi, and argues
that that concept is “evidently not appropriate for this case”. At the hear-
ings it argued that the requirements of Article 10, paragraph 2, of the
ILC Articles on State Responsibility are not fulfilled in respect of the
claims made by Croatia against Serbia in the present case. It contended
that Croatia has been unable to specify an identifiable “insurrectional or
other movement” in the territory of the SFRY as one that established the
FRY which would fall within the definition of that Article.

   127. In so far as Article 10, paragraph 2, of the ILC Articles on State
Responsibility reflects customary international law on the subject, it
would necessarily require the Court, in order to determine if that rule is
applicable to the present case and for purposes of a possible application,
to enter into an examination of factual issues concerning the events lead-
ing up to the dissolution of the SFRY and the establishment of the FRY.
The Court notes further that for it to determine whether, prior to
27 April 1992, the FRY was a State in statu nascendi for purposes of the
rule invoked would similarly involve enquiry into disputed matters of
fact. It would thus be impossible to determine the questions raised by the
objection without to some degree determining issues properly pertaining
to the merits.
   128. The provision introduced into the Rules of Court in 1972, and
constituting Article 79, paragraph 7, of the Rules adopted on
14 April 1978, was drafted, as the Court indicated in the case concerning
Military and Paramilitary Activities in and against Nicaragua (Nicara-
gua v. United States of America), to make it clear that when preliminary
objections are exclusively preliminary, they have to be decided upon
immediately, “but if they are not, especially when the character of the
objections is not exclusively preliminary because they contain both pre-
liminary aspects and other aspects relating to the merits, they will have to
be dealt with at the stage of the merits” (Merits, Judgment, I.C.J.
Reports 1986, p. 31, para. 41 ; see also Questions of Interpretation and

51

460         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom),
Preliminary Objections, I.C.J. Reports 1998, pp. 27-29.)
   129. In the view of the Court, the questions of jurisdiction and admis-
sibility raised by Serbia’s preliminary objection ratione temporis constitute
two inseparable issues in the present case. The first issue is that of the
Court’s jurisdiction to determine whether breaches of the Genocide Con-
vention were committed in the light of the facts that occurred prior to the
date on which the FRY came into existence as a separate State, capable of
being a party in its own right to the Convention ; this may be regarded as
a question of the applicability of the obligations under the Genocide Con-
vention to the FRY before 27 April 1992. The second issue, that of admis-
sibility 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.
   130. In view of the above, the Court concludes that Serbia’s prelimi-
nary objection ratione temporis does not possess, in the circumstances of
the case, an exclusively preliminary character.

                                   * * *

VII. PRELIMINARY OBJECTION CONCERNING THE SUBMISSION OF CERTAIN
   PERSONS TO TRIAL ; THE PROVISION OF INFORMATION ON MISSING
    CROATIAN CITIZENS ; AND THE RETURN OF CULTURAL PROPERTY

   131. Serbia’s preliminary objection as stated in its final submis-
sion 2 (b), (hereinafter referred to as the “third objection”) is that

      “claims referring to submission to trial of certain persons within the
      jurisdiction of Serbia, providing information regarding the where-
      abouts of missing Croatian citizens and return of cultural property
      are beyond the jurisdiction of this Court and inadmissible”.

In the objection as filed on 11 September 2002, it had been asserted that
some of the Applicant’s specific submissions are per se inadmissible and
moot. Serbia has identified the claims in question as those made as sub-
missions 2 (a), 2 (b) and 2 (c) advanced in the Memorial of Croatia.
Despite this overall classification of the objection as being both to the
jurisdiction of the Court and to the admissibility of certain claims, it
appears that not all the contentions of Serbia in this respect are related to
both aspects of the objection.

  132. The Court notes that Croatia has asked the Court simply to reject

52

461         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

the third objection, though in relation to one matter it suggests that the
point should be examined at the merits stage (see paragraphs 138 and 142
below). The Court recalls that it is required by Article 79, paragraph 7, of
the 1978 Rules of Court either to “uphold the objection, reject it, or
declare that the objection does not possess, in the circumstances of the
case, an exclusively preliminary character” ; and that this last course may
be indicated, inter alia, when an objection contains “both preliminary
aspects and other aspects relating to the merits” (Military and Paramili-
tary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986, p. 31, para. 41).

                                    *   *
                     (i) Submission of persons to trial
   133. Submission 2 (a) in the Croatian Memorial requests the Court to
find that Serbia is under an obligation :

      “to take immediate and effective steps to submit to trial before the
      appropriate judicial authority, those citizens or other persons within
      its jurisdiction who are suspected on probable grounds of having
      committed acts of genocide as referred to in paragraph (1) (a), or
      any of the other acts referred to in paragraph (1) (b) [of the Sub-
      missions of Croatia], in particular Slobodan Milošević, the former
      President of the Federal Republic of Yugoslavia, and to ensure that
      those persons, if convicted, are duly punished for their crimes”.

Croatia’s claim is based on Articles I and VI of the Genocide Conven-
tion. By Article I, the Contracting Parties “undertake to prevent and
punish” genocide ; and Article VI provides that

         “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.”

Croatia thus contends that “the failure of the FRY . . . to submit all rele-
vant persons for trial by a competent tribunal gives rise to its interna-
tional responsibility”.
   134. As regards the factual basis of this claim, the Court notes that
Croatia has adjusted its submissions to take account of the fact that
former President Slobodan Milošević had, since the presentation of the
Memorial, been transferred to the International Criminal Tribunal for
the former Yugoslavia (ICTY), and has since died. Furthermore, Croatia

53

462        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

accepts that this submission is now moot in respect of a number of other
persons whom Serbia has transferred to the ICTY, but insists that there
continues to be a dispute between Croatia and Serbia with respect to per-
sons who have not been submitted to trial either in Croatia or before the
ICTY in respect of acts or omissions which are the subject of these pro-
ceedings. As regards the ICTY, Serbia maintains, as a first basis of its
objection, that as a matter of fact there is only one person still at large
who has been accused by the ICTY of crimes allegedly committed in
Croatia, and these accusations relate not to genocide but to war crimes
and crimes against humanity. Croatia observes that a number of persons
have been charged with genocide by the Croatian authorities, and that a
number of perpetrators so charged are out of reach of the Croatian
authorities, “presumably in Serbia”.
   135. The second and third bases of Serbia’s objection to Croatian sub-
mission 2 (a) are as follows. Serbia observes that Croatia is asserting
that Serbia is under an obligation under the Genocide Convention to
punish its nationals for alleged acts of genocide committed in Croatia,
that is to say outside Serbia’s own territory ; it draws attention however
to the finding made by the Court in 2007 (since the proceedings were
instituted in this case) in its Judgment in the case concerning Application
of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), that the
Convention “only obliges the Contracting Parties to institute and exer-
cise territorial criminal jurisdiction” (I.C.J. Reports 2007 (I), pp. 226-
227, para. 442). Serbia then objects further that Croatia is apparently
claiming that Serbia has violated the Genocide Convention by failing in a
duty to hand over persons who have allegedly committed acts of geno-
cide, not to the ICTY, but to Croatia itself ; and it argues that no such
obligation is to be found in the Convention ; in this respect, it again cites
the Judgment in the case concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herze-
govina v. Serbia and Montenegro) (ibid., p. 227, para. 443).

  136. In the view of the Court, these issues are clearly matters of inter-
pretation or application of the Genocide Convention, the role conferred
on the Court by Article IX, and thus, contrary to the contention of Ser-
bia in its objection, within the jurisdiction of the Court (cf. Avena and
Other Mexican Nationals (Mexico v. United States of America), Judg-
ment, I.C.J. Reports 2004 (I), pp. 31-32, para. 30).
  The Court understands the first basis of Serbia’s submission to be
essentially a matter of admissibility : it amounts to an assertion
that, on the facts of the case as they now stand, the claim is moot,
in the sense that Croatia has not shown that there are at the present
time any persons charged with genocide, either by the ICTY or by
the courts of Croatia, who are on the territory or within the control
of Serbia. Whether that is correct will be a matter for the Court to
determine when it examines the claims of Croatia on the merits. The

54

463         APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Court therefore rejects the objection and sees no remaining issue of
admissibility.

                                   *   *
        (ii) Provision of information on missing Croatian citizens

   137. By submission 2 (b) advanced by Croatia, which is challenged by
Serbia by its third preliminary objection, the Applicant asks the Court to
find that Serbia is under an obligation
      “to provide forthwith to the Applicant all information within its
      possession or control as to the whereabouts of Croatian citizens who
      are missing as a result of the genocidal acts for which [Serbia] is
      responsible, and generally to co-operate with the authorities of the
      Republic of Croatia to jointly ascertain the whereabouts of the said
      missing persons or their remains”.
Serbia has asserted in support of its objection to this submission that the
relevant acts committed in Croatia do not amount to genocide, so that
the obligations under the Genocide Convention do not apply. It has also
drawn attention to co-operation between the two States concerning the
location and identification of missing persons, both direct and in the con-
text of the work of the International Commission for Missing Persons,
and to the existence of bilateral treaty-instruments concluded by the two
States imposing obligations to exchange data about missing persons.
Croatia contends that these agreements do not preclude the exercise of
the Court’s jurisdiction under Article IX of the Genocide Convention,
and are in practice ineffective.

   138. It does not appear that this submission of Croatia is regarded by
Serbia as “beyond the jurisdiction of this Court” (see paragraph 131
above) ; it has been presented rather as a matter of mootness of the claim,
a question of admissibility. It is not disputed that the Genocide Conven-
tion does not specifically prescribe a duty to provide information of the
kind referred to, but Croatia has contended that its submission “falls
squarely within [the terms of] the Genocide Convention”, and presented
the matter in terms of an appropriate remedy for a continuing breach of
the Convention by Serbia.
   139. However, the question what remedies might appropriately be
ordered by the Court in the exercise of its jurisdiction under Article IX of
the Convention is one which is necessarily dependent upon the findings
that the Court may in due course make of breaches of the Convention by
the Respondent. As a matter which is essentially one of the merits, and
one dependent upon the principal question of responsibility raised by the
claim, this is not a matter that may be the proper subject of a preliminary
objection. This conclusion is reinforced by the consideration that, in this

55

464        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

particular case, in order to decide whether an order in the terms of
Croatian submission 2 (b) would be an appropriate remedy, the Court
would have to enquire into disputed matters of fact. This it would have
to do in order to establish whether or not, and in what circumstances, the
co-operation as to the provision of information between the two States
mentioned by Serbia has taken place, and whether this remedy might be
held as resulting from the establishment of responsibility for breaches of
the Convention. These issues are for the merits, and the Court concludes
that the preliminary objection submitted by Serbia, so far as it relates to
Croatian submission 2 (b), must be rejected.

                                   *   *
                    (iii) Return of cultural property
   140. By submission 2 (c) advanced by Croatia, which is also chal-
lenged by Serbia by its third preliminary objection, the Applicant asks
the Court to find that Serbia is under an obligation “forthwith to return
to the Applicant any items of cultural property within its jurisdiction or
control which were seized in the course of the genocidal acts for which it
is responsible”. Serbia has argued that in this respect no dispute exists
between the Parties, “even more so since cultural property has to a large
extent already been returned to Croatia by Serbia”, so that the claim has
become “moot and thus inadmissible”. It is less clear whether Serbia also
disputes the jurisdiction of the Court to entertain that claim : it does
argue that the acts complained of “must constitute acts of genocide in
order for the Court to be able to exercise jurisdiction under Article IX of
the Convention”, but not that the Court would have no jurisdiction to
consider whether those acts do or do not constitute breaches of the Con-
vention.
   141. As already noted above, since proceedings were instituted in this
case, the Court has given judgment in the case concerning Application of
the Convention on the Prevention and Punishment of the Crime of Geno-
cide (Bosnia and Herzegovina v. Serbia and Montenegro) ( I.C.J. Reports
2007 (I), p. 43) ; and Serbia has relied on that decision also in the con-
text of the issue now under examination. In that case the Court found
that there had been a “deliberate destruction of the historical, cultural
and religious heritage of the . . . group [protected by the Convention]”
(ibid., p. 185, para. 344). However, the Court found that “[a]lthough 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,
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” (ibid.). As has
already been indicated (see paragraphs 52-56 above), this decision does
not have the force of res judicata in the present proceedings, but the

56

465        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

Court sees no reason to depart from its earlier finding on the general
question of interpretation of the Convention in this respect. The Court
will have to decide how these findings of law are to be applied, and what
may be their effect in the present case.

  142. Croatia however indicates that it perceives the alleged deliberate
destruction and looting of cultural property in this case as part of a
broader plan or pattern of activities aimed at the extinction of an ethnic
group, and therefore within the purview of the Genocide Convention,
and that accordingly an order for return of property taken in such cir-
cumstances is not a priori inadmissible ; it suggests that whether or not
such an order would be an appropriate remedy in this case is a matter to
be determined at the merits stage.

  143. However, as the Court has noted above, the question what rem-
edies might appropriately be ordered by the Court is one which is neces-
sarily dependent upon the findings that the Court may in due course
make of breaches of the Genocide Convention by the Respondent ; it is
not a matter that may be the proper subject of a preliminary objection.
As in the case of submission 2 (b), this conclusion is reinforced by the
consideration that in order to decide whether an order in the terms of
Croatian submission 2 (c) would be an appropriate remedy, the Court
would have to enquire into disputed matters of fact, to establish whether
or not a breach of an obligation deriving from the Genocide Convention
had been established, and if so in what respects. The Court concludes
that the preliminary objection submitted by Serbia so far as it relates to
Croatian submission 2 (c) must be rejected.

                                   *   *
                             (iv) Conclusion
   144. Serbia’s third preliminary objection, as stated in its final submis-
sion 2 (b), addressed to Croatia’s submissions 2 (a), 2 (b) and 2 (c),
must therefore be rejected in its entirety.

                                  * * *
   145. Having established its jurisdiction, the Court will consider the
preliminary objection that it has found to be not of an exclusively pre-
liminary character when it reaches the merits of the case. In accordance
with Article 79, paragraph 7, of the Rules of Court as adopted on
14 April 1978, time-limits for the further proceedings will be fixed subse-
quently by the Court.

                                  * * *
57

466        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

                         VIII. OPERATIVE CLAUSE

  146. For these reasons,
  THE COURT,
  (1) By ten votes to seven,
  Rejects the first preliminary objection submitted by the Republic of
Serbia in so far as it relates to its capacity to participate in the proceed-
ings instituted by the Application of the Republic of Croatia ;
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Buer-
    genthal, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna ;
    Judge ad hoc Vukas ;
  AGAINST : Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Owada, Skot-
    nikov ; Judge ad hoc Kreća ;
  (2) By twelve votes to five,
   Rejects the first preliminary objection submitted by the Republic of
Serbia in so far as it relates to the jurisdiction ratione materiae of the
Court under Article IX of the Convention on the Prevention and Pun-
ishment of the Crime of Genocide to entertain the Application of the
Republic of Croatia ;
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Buer-
    genthal, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Ben-
    nouna, Skotnikov ; Judge ad hoc Vukas ;
  AGAINST : Judges Ranjeva, Shi, Koroma, Parra-Aranguren ; Judge ad hoc
    Kreća ;
  (3) By ten votes to seven,
  Finds that subject to paragraph 4 of the present operative clause the
Court has jurisdiction to entertain the Application of the Republic of
Croatia ;
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Buer-
    genthal, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna ;
    Judge ad hoc Vukas ;
  AGAINST : Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Owada, Skot-
    nikov ; Judge ad hoc Kreća ;
  (4) By eleven votes to six,
   Finds that the second preliminary objection submitted by the Republic
of Serbia does not, in the circumstances of the case, possess an exclu-
sively preliminary character ;
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Ran-
    jeva, Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-Amor,
    Bennouna ; Judge ad hoc Vukas ;
  AGAINST : Judges Shi, Koroma, Parra-Aranguren, Tomka, Skotnikov ;
    Judge ad hoc Kreća ;

58

467        APPLICATION OF GENOCIDE CONVENTION (JUDGMENT)

  (5) By twelve votes to five,
  Rejects the third preliminary objection submitted by the Republic of
Serbia.
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Ran-
    jeva, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-
    Amor, Bennouna ; Judge ad hoc Vukas ;
  AGAINST : Judges Shi, Koroma, Parra-Aranguren, Skotnikov ; Judge ad hoc
    Kreća.

   Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this eighteenth day of November, two thou-
sand and eight, in three copies, one of which will be placed in the archives
of the Court and the others transmitted to the Government of the Repub-
lic of Croatia and the Government of the Republic of Serbia, respectively.

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

  Vice-President AL-KHASAWNEH appends a separate opinion to the Judg-
ment of the Court ; Judges RANJEVA, SHI, KOROMA and PARRA-
ARANGUREN append a joint declaration to the Judgment of the Court ;
Judges RANJEVA and OWADA append dissenting opinions to the Judgment
of the Court ; Judges TOMKA and ABRAHAM append separate opinions to
the Judgment of the Court ; Judge BENNOUNA appends a declaration to
the Judgment of the Court ; Judge SKOTNIKOV appends a dissenting opin-
ion to the Judgment of the Court ; Judge ad hoc VUKAS appends a sep-
arate opinion to the Judgment of the Court ; Judge ad hoc KRECuA appends
a dissenting opinion to the Judgment of the Court.

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

59