53

DECLARATION BY JUDGE SPIROPOULOS
[Translation]

To my very great regret, I differ from the Judgment on some
points:

With regard to the first and second submissions of Portugal on
the merits of the case, I am in agreement, in principle, with the
opinion of Judges Armand-Ugon, Wellington Koo and Sir Percy
Spender.

With regard to the submission of Portugal that India must end
the measures by which it opposes the exercise of the right of passage,
I consider that the point of view of the Government of India must
be adopted for the following reasons:

It is a fact that after the departure of the Portuguese authorities,
the population of the enclaves set up a new autonomous authority
based upon the will of the population. Since the right of passage
assumes the continuance of the administration of the enclaves by
the Portuguese, the establishment of a new power in the enclaves
must be regarded as having 2pso facto put an end to the right of
passage.

(Signed) J. SPIROPOULOS.

51


COUR INTERNATIONALE DE JUSTICE

_ RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE AMBATIELOS

(GRÈCE / ROYAUME-UNI)
ORDONNANCE DU 30 JUILLET 1951

1951

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

AMBATIELOS CASE

(GREECE / UNITED KINGDOM)
ORDER OF JULY 30th, 1951

SOCIÉTÉ D'ÉDITIONS A. W. SIJTHOFF’S

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

« Affaire Ambatielos,
Ordonnance du 30 juillet 1957: C. I. J. Recueil 1957, p. 103.»

This Order should be cited as follows :

“Ambatielos case,
Order of July 30th, 1951: I.C.J]. Reports 1951, p. 103.”

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we 30 juillet

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103

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1951

30 juillet 1951

AFFAIRE AMBATIELOS

(GRECE / ROYAUME-UNI)

ORDONNANCE

Le Président de la Cour internationale de Justice,
vu l’article 48 du Statut de la Cour,
vu l’article 37 du Règlement de la Cour,

vu la requête, datée du 9 avril 1951 et enregistrée au Greffe
de la Cour le même jour, par laquelle le Gouvernement hellénique
a introduit contre le Gouvernement du Royaume-Uni de Grande-
Bretagne et d'Irlande du Nord l'affaire Ambatielos,

vu l’ordonnance du 18 mai 1951, fixant les délais pour le dépôt
du Mémoire et du Contre-Mémoire en ladite affaire, et réservant
la suite de la procédure ;

Considérant que, par lettre en date du 25 juillet 1951, l'agent
du Gouvernement hellénique a demandé une prolongation d’un
mois pour le délai fixé pour le dépôt du Mémoire ;

Considérant que, par lettre du 28 juillet 1951, l'agent du Gouver-
nement du Royaume-Uni, auquel la demande précitée avait été
communiquée, a fait savoir qu’il n'avait pas d’objection à formuler ;

Décide
de proroger au 30 août 1951 le délai pour la présentation du
Mémoire du Gouvernement hellénique et au 15 novembre 1951

4
104 ORDONNANCE DU 30 VII 51 (AFFAIRE AMBATIELOS)

le délai pour le dépôt du Contre-Mémoire du Gouvernement du
Royaume-Uni, la suite de la procédure restant réservée.

Fait en anglais et en français, le texte anglais faisant foi, au
Palais de la Paix, 4 La Haye, le trente juillet mille neuf cent
cinquante et un, en trois exemplaires, dont l’un restera déposé
aux archives de la Cour et dont les autres seront transmis respec-
tivement au Gouvernement hellénique et au Gouvernement du
Royaume-Uni de Grande-Bretagne et d’Irlande du Nord.

Le Président de la Cour,
(Signé) BASDEVANT.

Le Greffier adjoint de la Cour,
(Signé) GARNIER-COIGNET.


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

APPLICATION FOR REVIEW
OF JUDGEMENT No. 333 OF THE UNITED
NATIONS ADMINISTRATIVE TRIBUNAL

(REQUEST FOR ADVISORY OPINION)

ORDER OF 13 SEPTEMBER 1984

1984

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

DEMANDE DE RÉFORMATION
DU JUGEMENT N° 333 DU TRIBUNAL
ADMINISTRATIF DES NATIONS UNIES

(REQUÊTE POUR AVIS CONSULTATIF)

ORDONNANCE DU 13 SEPTEMBRE 1984
Official citation :
Application for Review of Judgement No. 333 of
the United Nations Administrative Tribunal, Order
of 13 September 1984, I.CJ. Reports 1984, p. 212.

Mode officiel de citation :

Demande de réformation du jugement n° 333
du Tribunal administratif des Nations Unies, ordonnance
du 13 septembre 1984, C.I.T. Recueil 1984, p. 212.

Sales number S03
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13 septembre 1984 no 72

DEMANDE DE RÉFORMATION
DU JUGEMENT No 333 DU TRIBUNAL
ADMINISTRATIF DES NATIONS UNIES

(REQUÊTE POUR AVIS CONSULTATIF)

ORDONNANCE

Le Président de la Cour internationale de Justice,

Vu l’article 66, paragraphe 2, du Statut de la Cour,

Considérant que le 23 août 1984 le Comité des demandes de réformation
de jugements du Tribunal administratif des Nations Unies a adopté une
décision ainsi conçue :

« Le Comité des demandes de réformation de jugements du Tri-
bunal administratif, à la 4e séance de sa vingt-quatriéme session,
tenue le 23 août 1984, a décidé que la demande de réformation du
jugement n° 333 du Tribunal administratif rendu à Genève le 8 juin
1984 repose sur des bases sérieuses au sens de l’article 11 du statut du
Tribunal.

En conséquence, le Comité des demandes de réformation de juge-
ments du Tribunal administratif prie la Cour internationale de Justice
de donner un avis consultatif sur les questions suivantes :

« 1) Dans son jugement n° 333, du 8 juin 1984 (AT/DEC/333),
le Tribunal administratif des Nations Unies a-t-il manqué d'exercer
sa juridiction en ne répondant pas à la question de savoir s’il existait
un obstacle juridique au renouvellement de l'engagement du requé-
rant à l'Organisation des Nations Unies après la venue à expiration
de son contrat le 26 décembre 1983 ?
DEMANDE DE RÉFORMATION (ORDONNANCE 13 IX 84) 213

2) Le Tribunal administratif des Nations Unies, dans le même
jugement n° 333, a-t-il commis une erreur de droit concernant les
dispositions de la Charte des Nations Unies ? »

Considérant que copie certifiée conforme des textes français et anglais
de la susdite décision a été transmise à la Cour par une lettre du Secrétaire
général de l'Organisation des Nations Unies du 28 août 1984, enregistrée
au Greffe le 10 septembre 1984 ;

Considérant que, dans cette lettre, le Secrétaire général a déclaré :

« comme l'exige le paragraphe 2 de l’article 11 du statut du Tribunal
administratif, je veillerai à ce que soient transmises à la Cour toutes
observations que voudrait lui soumettre M. Yakimetz, fonctionnaire
visé par le jugement n° 333 du Tribunal administratif »,

Fixe au 14 décembre 1984 la date d’expiration du délai dans lequel des
exposés écrits pourront être présentés conformément à l’article 66, para-
graphe 2, du Statut de la Cour ;

Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au palais de la
Paix, a La Haye, le treize septembre mil neuf cent quatre-vingt-quatre.

Le Président,
(Signé) T. O. ELras.

Le Greffier,
(Signé) Santiago TORRES BERNARDEZ.


515

             SEPARATE OPINION OF JUDGE TOMKA

   Preliminary objections — Jurisdiction ratione temporis — Whether the FRY
could be bound by the Genocide Convention before 27 April 1992 — The Geno-
cide Convention was applicable during the entire period of the armed conflict
without interruption — Article IX of the Genocide Convention — Disputes
relating to the interpretation or application of the Genocide Convention by the
Contracting Parties thereto — Constituent units of the SFRY were not Con-
tracting Parties to the Convention — Succession into responsibility of a pred-
ecessor State not within the jurisdiction of the Court — Responsibility for acts
of an entity committed before it became a State and a Contracting Party not
within the jurisdiction of the Court — Consequences of the FRY becoming party
to the Convention on 27 April 1992 a matter to be determined at this stage of
the proceedings.

                                    * * *
   1. This is a case which Croatia brought before the Court some eight
years after the armed conflict in which it was involved with the Socialist
Federal Republic of Yugoslavia (SFRY), and subsequently with the Fed-
eral Republic of Yugoslavia (FRY), broke out and four years after it
ended, and during which, as Croatia alleges, violations of obligations
under the Genocide Convention were committed. More than nine years
have passed since the institution of proceedings on 2 July 1999. The
Court only today determines that it has jurisdiction under Article IX of
the Convention on the Prevention and Punishment of the Crime of
Genocide (hereinafter “the Genocide Convention”) to entertain Croatia’s
Application. Nevertheless, the Court still leaves open one aspect of its
jurisdiction, which it considers together with the issue of admissibility,
qualifying both of them as being of a ratione temporis character, when it
finds that the second preliminary objection of Serbia, contending that the
claims of Croatia based on acts and omissions which took place prior to
27 April 1992, are beyond the jurisdiction of the Court and inadmissible,
“does not, in the circumstances of the case, possess an exclusively pre-
liminary character” (Judgment, para. 146 (4)).
   2. I am unable to subscribe either to this finding or its reasoning, and
I have therefore voted against this conclusion while voting in favour of
all the other conclusions reached by the Court. My negative vote calls for
some explanation. With respect to other issues of jurisdiction, I can refer
to the views I have already expressed in paragraphs 24 to 36 of my sepa-
rate opinion in the case concerning the Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Bosnia and

107

516       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. TOMKA)

Herzegovina v. Serbia and Montenegro) (Judgment, I.C.J. Reports 2007
(I), pp. 323-331). My approach in that case does not differ from the
approach now adopted by the majority in the present case.

                                     *
  3. Serbia raised a preliminary objection “that claims based on acts and
omissions which took place prior to 27 April 1992 are beyond the juris-
diction of this Court and inadmissible” (Judgment, para. 22), the reason
being that those acts occurred prior to the establishment of the Federal
Republic of Yugoslavia (Serbia and Montenegro). Serbia argues that 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.
Serbia contends that the
      “Genocide Convention including the jurisdictional clause contained
      in its Article IX cannot be applied with regard to acts which occurred
      before Serbia came into existence as a State, and before it could
      therefore have become a party to the Convention, i.e. that it may not
      be applied with regard to acts that occurred before 27 April 1992”
      (CR 2008/9, pp. 13-14, para. 4 ; emphasis in the original).
   4. Croatia draws the attention of the Court to the fact that a similar
issue of jurisdiction ratione temporis under the Genocide Convention was
dealt with by the Court in the Bosnia and Herzegovina v. Yugoslavia
case. Croatia relies on the 1996 Judgment in which the Court observed
“that the Genocide Convention — and in particular Article 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”, that the Court
could only deal with events subsequent to the different dates on which
the Convention became applicable between the FRY and Bosnia and
Herzegovina and, moreover, “nor did the Parties themselves make any
reservation to that end” (I.C.J. Reports 1996 (II), p. 617, para. 34).
Croatia recalls in particular the Court’s finding in 1996 that “it has juris-
diction in [the Bosnia and Herzegovina] case to give effect to the Geno-
cide Convention with regard to the relevant facts which have occurred
since the beginning of the conflict which took place in Bosnia and Herze-
govina” (ibid. ; emphasis added). That conflict started in spring 1992,
while the conflict in Croatia’s territory had already begun in summer 1991.

   5. I concur with the Court’s view on the circumstances which distin-
guish the present case from the previous one, in which jurisdiction ini-
tially was decided in 1996. The Court now emphasizes 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” (Judgment, para. 124 ; emphasis
added). I would add that that issue was not before the Court in 1996. No
issue of the FRY being a party to the Genocide Convention was raised

108

517       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. TOMKA)

by either party in the Bosnia and Herzegovina case ; nor did the Court
take any position with respect to the exact date on which the FRY
became party to the Convention. The FRY persisted at that time in its
claim in the United Nations that it continued the international legal per-
sonality of the former Yugoslavia. The Court limited itself to the conclu-
sion that the Federal Republic of “Yugoslavia was bound by the provi-
sions of the Convention on the date of the filing of the Application in the
[Bosnia and Herzegovina] case, namely, on 20 March 1993” (I.C.J.
Reports 1996 (II), p. 610, para. 17). It reached that conclusion by briefly
observing that “[t]he proceedings instituted before the Court are between
two States whose territories are located within the former Socialist Fed-
eral Republic of Yugoslavia” (ibid.). It then noted that the SFRY signed
the Genocide Convention on 11 December 1948 and deposited its instru-
ment of ratification, without reservation, on 29 August 1950. It further
recalled a formal declaration adopted at the time of the proclamation of
the FRY on 27 April 1992 stating 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.’” (Ibid.)
   The Court, avoiding the issue of the claimed continuity of the interna-
tional legal personality of the SFRY by the FRY, simply noted that :

         “This intention thus expressed by Yugoslavia to remain bound by
      the international treaties to which the former Yugoslavia was party
      was confirmed in an official Note of 27 April 1992 from the Perma-
      nent Mission of Yugoslavia to the United Nations, addressed to the
      Secretary-General. The Court observes, furthermore, that it has not
      been contested that Yugoslavia was party to the Genocide Conven-
      tion.” (Ibid.)
   6. In the present case, as the Court summarises, “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” (Judgment, para. 124).
   7. The Court takes the view, without any explanation or justification,
that “the question of the temporal scope of its jurisdiction is closely
bound up with these questions of attribution, presented by Serbia as a
matter of admissibility rather than of jurisdiction, and thus has to be
examined in the light of these issues” (ibid.). That assertion is question-
begging. How can the question of jurisdiction (including its temporal
scope), which relates to the consent of the Parties, be “closely bound”
with the question of attribution of conduct, which belongs to the law of

109

518       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. TOMKA)

State responsibility, and thus clearly to the merits phase ? The Court only
summarily addresses the issue of the attribution of acts that occurred
prior to 27 April 1992, recalling the arguments of Croatia (Judgment,
para. 125) and those of Serbia (ibid., para. 126) to conclude that “the
questions of jurisdiction and admissibility raised by Serbia’s preliminary
objection ratione temporis constitute two inseparable issues in the present
case” (ibid., para. 129). By briefly addressing the issues of attribution,
which the Court sees as relating to the admissibility of the claim and for
the ruling on which the Court feels a need to have more factual elements,
the Court postpones its decision on the objection to its jurisdiction per-
ceived by it as being of a ratione temporis character as well. That latter
issue, in the view of the Court, concerns its jurisdiction
      “to determine whether breaches of the Genocide Convention were
      committed in the light of the facts that occurred prior to the date on
      which the FRY came into existence as a separate State, capable of
      being a party in its own right to the Convention” (ibid. ; emphasis
      added).
   The Court explains that this issue “may be regarded as a question of
the applicability of the obligations under the Genocide Convention to the
FRY before 27 April 1992” (ibid.).
   8. Croatia has always denied that the FRY continued the international
legal personality of the SFRY. It consistently maintained that the FRY
has been one of the five equal successors of the SFRY. Croatia argued
that the FRY became a party to the Genocide Convention by succession,
which “is retrospective to the commencement of the successor State”
(CR 2008/11, p. 9, para. 8). It unambiguously stated that “[t]he Respon-
dent was a party by succession to the Genocide Convention from the
beginning of its existence as a State” (ibid., para. 7).
   9. The Court has determined that the FRY did indeed acquire the sta-
tus of party to the Convention by a process that is to be regarded as suc-
cession. The Court came to the conclusion 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” (Judgment, para. 117).
Accordingly, the FRY became a party to the Genocide Convention at its
“commencement” as a successor State. There is agreement that 27 April
1992 is that date. It has never been contested by any State (nor by
Croatia) that the FRY became on that date a party to all those interna-
tional conventions deposited with the Secretary-General of the United
Nations to which it notified succession. The Genocide Convention is no
exception.
   10. There is no doubt that the Genocide Convention was binding on
the SFRY since 12 January 1951, when it entered into force in accord-
ance with Article XIII, until its dissolution and thus was applicable in
respect of its entire territory (Article 29 of the Vienna Convention on the
Law of Treaties codifying the relevant rule of customary international
law ; see also Application of the Convention on the Prevention and Pun-

110

519      APPLICATION OF GENOCIDE CONVENTION (SEP. OP. TOMKA)

ishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugosla-
via), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 610,
para. 17). There was not a single day during the armed conflict which
broke out in 1991 in the territory of the SFRY and ravaged until 1995
when the Convention would not have been applicable in that territory.
This is so because, so long as the SFRY continued to exist, it remained
party to the Genocide Convention and thus bound by its provisions. As
its constituent republics gradually seceded from the Federation and
declared independence, they became parties to the Convention on the
basis of succession with effect from the date when these republics assumed
responsibility for their international relations, Slovenia determining this
date as being 25 June 1991, Croatia 8 October 1991, the former Yugoslav
Republic of Macedonia 17 September 1991, and Bosnia and Herzegovina
6 March 1992. In the present case, the Court determined that the FRY
(Serbia and Montenegro) became party to the Genocide Convention
by succession, ascribing to the declaration of 27 April 1992 and the
Note of the same date “the effect of a notification of succession by the
FRY to the SFRY in relation to the Genocide Convention” (Judgment,
para. 117).
   Consequently, there was no hiatus or gap in the protection afforded by
the Genocide Convention during the conflict, a concern expressed by
counsel for Croatia (CR 2008/10, pp. 34-36, paras. 19-21) when address-
ing the arguments of Serbia regarding the temporal application of the
Convention.
   The aim of avoiding a lacuna in the applicability of the Genocide Con-
vention in the context of violence accompanying the process of the
SFRY’s dissolution was stressed by several judges in their separate
opinions in the case concerning Application of the Convention on the Pre-
vention and Punishment of the Crime of Genocide (Bosnia and Herze-
govina v. Yugoslavia) (Preliminary Objections, Judgment, I.C.J. Reports
1996 (II) ; separate opinion of Judge Shahabuddeen, p. 635 ; separate
opinion of Judge Weeramantry, p. 651 ; and separate opinion of Judge
Parra-Aranguren, p. 656).
   The Convention was applicable at every moment during the prolonged
armed conflict in the territory of the former SFRY, but it was to be
applied by different States at different periods as the SFRY had been in
the process of dissolution and its successor States, on different dates,
gradually acquired international legal personality and the status of parties
to the Convention from the very moment of their existence as sovereign
States.
   11. Therefore, the issue before the Court is not the retroactive applica-
tion of the Genocide Convention. The issue is rather the interpretation of
the compromissory clause contained in Article IX and the determination
of the Court’s jurisdiction thereby conferred.
   12. Under Article IX of the Genocide Convention, the Court has juris-
diction to consider and adjudicate the “disputes between the Contracting
Parties relating to the interpretation, application or fulfilment of the

111

520      APPLICATION OF GENOCIDE CONVENTION (SEP. OP. TOMKA)

present Convention, including those relating to the responsibility of a
State for genocide”. Croatia, relying on this provision, has brought
before the Court the dispute with Serbia which, according to Croatia,
“relates to the interpretation and application of the Genocide Conven-
tion” (Application, para. 30 ; emphasis added). The Court has deter-
mined, as the title of both the case under which it was entered in its
General List and of the present Judgment indicate, that the case at hand
concerns the application of the Convention. In order to fall within the
ambit of Article IX of the Convention, the dispute must be about the
interpretation or application of the Convention by the Contracting Parties
to it, and not about the application of the Convention by the predecessor
State of the Contracting Party to the Convention (although such pred-
ecessor State may have been, and in our case was, party to the Conven-
tion), nor about its application by an entity which was not the State party
to the Convention and which only subsequently came into being as a
State and became a party to it. The constituent units of the SFRY were
not the Contracting Parties to the Convention, as only the SFRY itself
had that status ; the acts of its constituent units were considered as the
acts of the SFRY.
   13. Under the rule of customary international law codified in Article 4
of the ILC Articles on Responsibility of States for Internationally Wrong-
ful Acts, the conduct of an organ of a territorial unit of the State (and
both Croatia and Serbia were territorial or constituent units of the
SFRY) is considered as an act of the State, attributed to this State and
thus engaging the international responsibility of that State, if it is not in
conformity with what is required by an international obligation resting
upon that State. When that State ceases to exist, as was the case of the
SFRY which disintegrated in the process of dissolution which was com-
pleted before summer 1992, as stated in Opinion No. 8 of 4 July 1992
issued by the Arbitration Commission of the Conference on Yugoslavia
(International Legal Materials, 1992, Vol. XXXI, p. 1523), the issue of
succession to responsibility may arise. Similarly, when a territorial unit of
a predecessor State succeeds in its effort to secede and establishes itself as
a separate State, the issue of the responsibility of the separate State for
acts which were committed by the organs of that entity before it estab-
lished itself as a State with international legal personality may arise.
But clearly, regarding these two issues, neither that of succession into
responsibility of the predecessor State nor that of the responsibility of
an entity for acts committed before it became a State — and thus
could have become a party to the Genocide Convention — fall
within the jurisdiction of the Court under Article IX of the
Genocide Convention. That jurisdiction covers “disputes between
the Contracting Parties relating to the interpretation, application or
fulfilment of the . . . Convention” by its Contracting Parties. The
FRY, now continuing as Serbia, became a Contracting Party on
27 April 1992.

112

521       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. TOMKA)

   14. The situation in Gabčíkovo-Nagymaros Project (Hungary/Slova-
kia) was different. There, although the relevant acts occurred before the
dissolution of Czechoslovakia, the Court was given the jurisdiction and
specifically asked in the Special Agreement (Art. 2), concluded by
Hungary and Slovakia on 7 April 1993, “whether the Czech and Slovak
Federal Republic was entitled to proceed, in November 1991, to the ‘pro-
visional solution’ and to put into operation from October 1992 this system”
(Judgment, I.C.J. Reports 1997, p. 11, para. 2). It is to be noted that the
acts, despite in reality being performed on the ground by Slovak authori-
ties, were always considered by the Court as those of Czechoslovakia
(ibid., pp. 46-57, paras. 60-88) and, in relation to them, the Court refers
to Czechoslovakia and not to Slovakia in the operative clause (ibid.,
p. 82, para. 155 (1) B and C). When the Court addressed the issue of the
consequences of its Judgment, as it was asked in Article 2, paragraph 2,
of the Special Agreement, it recalled that : “According to the Preamble of
the Special Agreement, the Parties agreed that Slovakia is the sole suc-
cessor State of Czechoslovakia in respect of rights and obligations relat-
ing to the Gabčíkovo-Nagymaros Project.” (Ibid., p. 81, para. 151.) The
Court therefore considered that :
        “Slovakia thus may be liable to pay compensation not only for its
      own wrongful conduct but also for that of Czechoslovakia, and it is
      entitled to be compensated for the damage sustained by Czechoslo-
      vakia as well as by itself as a result of the wrongful conduct of Hun-
      gary.” (Ibid.)
   15. In the present case, the Court was not given jurisdiction by the
FRY to consider the acts of the predecessor State, the SFRY. Nor is Ser-
bia the sole successor of the SFRY ; it is one of the five equal successors
of the SFRY.
   16. Although the Court rightly says 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 Geno-
cide Convention on 27 April 1992” (Judgment, para. 124), it avoids
drawing such conclusions, justifying its convenient choice by a need to
have more elements before it (ibid., para. 129).
   17. I consider that the question of “consequences to be drawn from
the fact that the FRY became a State and a Party to the Genocide
Convention on 27 April 1992” is a legal question which should be
decided already at this stage and for the answering of which there is
no need of any further information. In reality, the Court, in the space
of the 15 years between 1993 and 2008, had to deal repeatedly with
issues relating to the legal status of the FRY and its participation in
the Genocide Convention, and all necessary information has been
put before it. What is conspicuous is that the Court does not even
indicate what other elements it needs. The legal issue which Serbia
raised before the Court is not case-specific, but rather of general
application. In my conscience, I am unable to follow the course of action

113

522      APPLICATION OF GENOCIDE CONVENTION (SEP. OP. TOMKA)

adopted by the majority and respectfully and not without regret
disagree.

                                     *
   18. The conclusion I reach is a consequence of the fact that the FRY
(now Serbia) is one of the successor States of the SFRY, the position
always maintained by Croatia. Had the FRY continued the international
legal personality of the SFRY, the question of the Court’s jurisdiction to
consider acts committed before 27 April 1992 could not have been rele-
vant.
   Furthermore, as Croatia noted, the argument of Serbia is “limited only
to some of the ‘gravest incidents’ — such as the atrocities in Vukovar and
the shelling of Dubrovnik — which occurred between 25 August 1991
and the end of that year” (Written Statement of Croatia, 29 April 2003,
p. 11, para. 3.2).
   19. The conclusion on the scope of the Court’s jurisdiction, based on
the interpretation of the compromissory clause contained in Article IX of
the Convention, does not amount to the exclusion of responsibility of
those who committed so many serious atrocities during the armed con-
flict in the territory of Croatia. Nor does that conclusion prevent the
responsibility of the State to which the acts of the perpetrators of such
atrocities may be attributed. As the Court has reminded on a number of
occasions (see e.g., 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. 50-51,
para. 123), there is a fundamental distinction between the acceptance by
States of its jurisdiction (and the scope thereof) and the conformity of
their acts with international law. States remain responsible for acts attrib-
utable to them which are contrary to international law although such acts
may have been committed during the period over which the jurisdiction
of the Court does not extend.
   20. May I add that a number of persons were indicted by the Prosecu-
tor of the International Criminal Tribunal for the former Yugoslavia for
atrocities committed in Vukovar and Dubrovnik in order to establish
individual criminal liability for their commission. Some of those cases
have been completed (Jokić (case IT-01-42/1 “Dubrovnik”) ; Strugar
(case IT-01-42 “Dubrovnik”)) ; some closed due to the death of the
accused (Slobodan Milošević (case IT-02-54 “Kosovo, Croatia and Bos-
nia”) ; Dokmanović (case IT-95-13a “Vukovar Hospital”)) ; another is
pending before the Appeal Chamber (Mrkśić et al. (case IT-95-13/1
“Vukovar Hospital”)) ; yet another is at the trial stage (Šešelj (case IT-
03-67)) ; finally, in another case, one accused is still at large (Hadžić
(case IT-04-75)). The case of one accused (Kovačević (case IT-01-42/2
“Dubrovnik”)) was referred by the ICTY to the Republic of Serbia.
Other cases have been dealt with by national judicial authorities. How-
ever, one cannot but notice that no accused was charged by the Prosecu-

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523      APPLICATION OF GENOCIDE CONVENTION (SEP. OP. TOMKA)

tor of the ICTY of a crime of genocide or the other acts enumerated in
Article III of the Genocide Convention in relation to the tragic events
which occurred in the territory of Croatia. They were charged with vio-
lations of the laws or customs of war (war crimes) and/or with crimes
against humanity.

   21. It remains to be seen how Croatia wishes to establish before this
Court, whose procedure is not criminal, that the crime of “genocide has
been perpetrated, and that the FRY is responsible for genocide” (Memo-
rial of Croatia, p. 8, para. 1.17), despite the fact that the ICTY “has
not . . . issued indictments against those persons most responsible for
genocide in Croatia” (ibid., p. 3, para. 1.07). But this matter is for the
merits, which hopefully will not take nine more years to resolve and thus
to close this unfortunate and painful chapter in Croatian-Serbian rela-
tions.

                                               (Signed) Peter TOMKA.

115