Max Planck Institute for Comparative Public Law and International Law Logo Max Planck Institute for Comparative Public Law and International Law

You are here: Publications Archive World Court Digest

World Court Digest

Summaries of the Decisions

Application of the Convention on the Prevention and

Punishment of the Crime of Genocide

(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))

On 20 March 1993, Bosnia-Herzegovina had instituted proceedings against Yugoslavia (Serbia/Montenegro) in respect of a dispute concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide invoking Article IX of the Genocide Convention as the basis of the jurisdiction of the Court.

At the same time, Bosnia-Herzegovina had also submitted a request for the indication of provisional measures under Article 41 of the Statute. By an Order dated 8 April 1993, the Court, after hearing the Parties, indicated certain provisional measures with a view to the protection of rights under the Genocide Convention. In a second order of 13 September 1993, the Court reaffirmed the measures indicated in its Order of 8 April 1993 but declined to order further- reaching injunctions requested by Yugoslavia1.

Yugoslavia then raised preliminary objections concerning, respectively, the admissibility of the Application and the jurisdiction of the Court to entertain the case.

Judgment on Preliminary Objections of July 11, 1996

With regard to the question whether the Genocide Convention was applicable as between the parties, the Court considered – without deciding the question whether the Federal Republic of Yugoslavia was identical with the former Socialist Federal Republic of Yugoslavia – that the Federal Republic of Yugoslavia, had adopted a formal declaration which expressed the intention of Yugoslavia to remain bound by the international treaties to which the former Yugoslavia was party and that it had not been contested that Yugoslavia was party to the Genocide Convention.

The Court found that Bosnia-Herzegovina could become a party to the Convention through the mechanism of State succession. Again without deciding whether Bosnia-Herzegovina automatically became party to the Genocide Convention on the date of its accession to independence on 6 March 1992, or whether it solely became a party as a result of its notice of succession, the Court determined that at all events Bosnia-Herzegovina was a party to the Convention on the date of the filing of its application.

The Court then turned to the point whether there was a dispute between the Parties that falls within the scope of Article IX of the Genocide Convention. Noting that there persisted between the Parties before it, "a situation in which the two sides hold clearly opposite views concerning the question of the performance or non-performance of certain treaty obligations", a legal dispute did indeed exist as between the two parties before it.

The Court also considered that, irrespective of the nature of the conflict forming the background to the dispute, the obligations of prevention and punishment which are incumbent upon the States parties to the Genocide Convention remain identical. It further noted that it could not, at this stage in the proceedings, settle the question whether Yugoslavia took part in the conflict at issue, a question which clearly belongs to the merits.

The Court also observed that Article IX does not exclude any form of State responsibility, nor is the responsibility of a State for acts of its organs excluded by Article IV of the Convention, which contemplates the commission of an act of genocide by "rulers" or "public officials".

As to the issue of jurisdiction ratione temporis the Court observed that the Genocide Convention does not contain any clause the object or effect of which is to limit in such manner the scope of its jurisdiction ratione temporis. Accordingly the Court found that it had 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-Herzegovina.

Judges Oda, Shi and Vereshchetin and judge ad hoc Lauterpacht added declarations to the judgement. Judges Shahabuddeen, Weeramantry and Parra-Aranguren, in their separate opinions, mainly discussed the question as to whether the Genocide Convention is subject to the principle of automatic succession. Finally, Judge ad hoc Kreca found that the relevant conditions for the entertainment of the case by the Court, relating to both jurisdiction and admissibility, had not been met.

Counter-Claims submitted by Yugoslavia

Order of 17 December 1997

In an order of 17 December 1997, the Court found that Yugoslavian counter-claims were admissible. In its counter-claims Yugoslavia had requested the ICJ to adjudge that Bosnia and Herzegovina was responsible for acts of genocide committed against Serbs in Bosnia and Herzegovina. Noting that a counter-claim is independent of the principal claim in so far as it constitutes a separate 'claim' and that its thrust is "to widen the original subject-matter of the dispute by pursuing objectives other than the mere dismissal of the claim of the Applicant", the Court found that the Yugoslavian counter-claims were admissible as such and formed part of the current proceedings since they were directly connected with the subject-matter of Bosnia and Herzegovina's claims.

While Judge ad hoc Kreca appended a declaration to the Order, Judge Koroma and Judge ad hoc Lauterpacht appended separate opinions. Vice-President Weeramantry appended a dissenting opinion.

By an Order of 10 September 2001 the Court placed on record the withdrawal by Yugoslavia of the counter-claims after having been informed that Bosnia and Herzegovina had indicated that it had no objection to that withdrawal.

Application for Revision of the Judgment of 11 July 1996 in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Bosnia and Herzegovina v. Yugoslavia) - Preliminary Objections

On 24 April 2001, the Federal Republic of Yugoslavia filed an application for revision of the above-mentioned judgment of 11 July 1996, by which the Court had declared that it had jurisdiction to adjudicate the case. Yugoslavia contends that a revision of the Judgment in accordance with Art. 61 of the Statute is necessary now that it has become clear that, Yugoslavia did not continue the international legal and political personality of the Socialist Federal Republic of Yugoslavia, was not a Member of the United Nations, was not a State party to the Statute of the Court, and was not a State party to the Genocide Convention.

1For further details as to those proceedings see World Court Digest, vol. II, p. 427 – 429.