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| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.12. | Counter-Claim |
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Application of the Convention on the Prevention
and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia)
Counter Claims, Order of 17 December 1997,
I.C.J. Reports 1997, p. 243
[p. 256] 25. Whereas, having received full and detailed written observations, from each of the Parties, the Court is sufficiently well informed of the positions they hold with regard to the admissibility of the claims presented as counter-claims by Yugoslavia in its Counter-Memorial; and whereas, accordingly, it does not appear necessary to hear the Parties otherwise on the subject;
[pp. 256-259] 26. Whereas it is now necessary to consider whether
the Yugoslav claims in question constitute "counter-claims" within the
meaning of Article 80 of the Rules of Court and, if so, whether they fulfil the
conditions set out in that provision;
27. Whereas it is established that a counter-claim has a dual character in
relation to the claim of the other party; whereas a counter-claim is independent
of the principal claim in so far as it constitutes a separate "claim",
that is to say an autonomous legal act the object of which is to submit a new
claim to the Court, and, whereas at the same time, it is linked to the principal
claim, in so far as, formulated as a "Counter" claim, it reacts to it;
whereas the thrust of a counter-claim is thus to widen the original
subject-matter of the dispute by pursuing objectives other than the mere
dismissal of the claim of the Applicant in the main proceedings - for example,
that a finding be made against the Applicant; and, whereas in this respect, the
counter-claim is distinguishable from a defence on the merits;
28. Whereas, in Article 80 of its Rules, the Court did not confer a
different meaning on the expression "counter-claim"; whereas the
inclusion of Article 80 in Section D ("Incidental Proceedings") of
Part III ("Proceedings in Contentious Cases") of the Rules of Court,
and the provisions set out in that Article show that it does not apply to mere
defences on the merits which the Court must hear in the normal exercise of its
functions to decide the Applicant's claims; and whereas the need to
differentiate between counter-claims and defences in the scheme of the Rules of
Court is moreover sufficiently clear from the jurisprudence of the Court:
"Whereas, moreover, if the Iranian Government considers the alleged activities of the United States in Iran legally to have a close connection with the subject-matter of the United States Application, it remains open to that Government under the Court's Statute and Rules to present its own arguments to the Court regarding those activities either by way of defence in a Counter-Memorial or by way of a counter-claim filed under Article 80 of the Rules of Court ..." (United States Diplomatic and Consular Staff in Tehran, Provisional Measures, Order of 15 December 1979, I.C.J. Reports 1979, p. 15, para. 24);
29. Whereas in the present case, although Submissions 1 and 2 in the Counter-Memorial of Yugoslavia relate exclusively to the dismissal of the claims of Bosnia and Herzegovina, Submissions 3 to 6, on the contrary, set out separate claims seeking relief beyond the dismissal of the claims of Bosnia and Herzegovina; and whereas such claims constitute "counterclaims" within the meaning of Article 80 of the Rules of Court;
30. Whereas, however, a claim should normally be made before the Court by means of an application instituting proceedings; whereas, although it is permitted for certain types of claim to be set out as incidental proceedings, that is to say, within the context of a case which is already in progress, this is merely in order to ensure better administration of justice, given the specific nature of the claims in question; whereas, as far as counter-claims are concerned, the idea is essentially to achieve a procedural economy whilst enabling the Court to have an overview of the respective claims of the parties and to decide them more consistently; and whereas the admissibility of the counter-claims must necessarily relate to the aims thus pursued and be subject to conditions designed to prevent abuse;
31. Whereas the Respondent cannot use a counter-claim as a means of referring to an international court claims which exceed the limits of its jurisdiction as recognized by the parties; and whereas the Respondent cannot use that means either to impose on the Applicant any claim it chooses, at the risk of infringing the Applicant's rights and of compromising the proper administration of justice; and whereas it is for that reason that paragraph 1 of Article 80 of the Rules of Court requires that the counter-claim "comes within the jurisdiction of the Court" and "that it is directly connected with the subject-matter of the claim of the other party";
32. Whereas in the present case it is not disputed that the Yugoslav counter-claims were "made in the Counter-Memorial of the party presenting it, and ... appear as part of the submissions of that party", in accordance with Article 80, paragraph 2, of the Rules of Court; and whereas, although Bosnia and Herzegovina recognizes that these claims meet the jurisdictional requirement set out in paragraph 1 of that Article, it denies that they meet the requirement of being directly connected with the subject-matter of the claim, also set out in that Article;
33. Whereas the Rules of Court do not define what is meant by "directly connected"; whereas it is for the Court, in its sole discretion, to assess whether the counter-claim is sufficiently connected to the principal claim, taking account of the particular aspects of each case; and whereas, as a general rule, the degree of connection between the claims must be assessed both in fact and in law;
34. Whereas, in the present case, it emerges from the Parties' submissions that their respective claims rest on facts of the same nature; whereas they form part of the same factual complex since all those facts are alleged to have occurred on the territory of Bosnia and Herzegovina and during the same period; and whereas Yugoslavia states, moreover, that it intends to rely on certain identical facts in order both to refute the allegations of Bosnia and Herzegovina and to obtain judgment against that State;
35. Whereas Bosnia and Herzegovina was right to point to the erga omnes character of the obligations flowing from the Genocide Convention (see Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996, pp. 615-616, para. 31), and the Parties rightly recognized that in no case could one breach of the Convention serve as an excuse for another and whereas, however, the argument drawn from the absence of reciprocity in the scheme of the Convention is not determinative as regards the assessment of whether there is a legal connection between the principal claim and the counter-claim, in so far the two Parties pursue, with their respective claims, the same legal aim, namely the establishment of legal responsibility for violations of the Genocide Convention;
36. Whereas in its Orders of 8 April and 13 September 1993, the Court considered the requests for the indication of provisional measures made by each of the Parties; and whereas, in its Order of 13 September 1993, it stated, inter alia, as follows:
"45. Whereas the measure requested by Yugoslavia would be appropriate to protect rights under the Genocide Convention, which are accordingly within the prima facie jurisdiction of the Court; whereas, on the evidence and information available to it, the Court must also recognize the existence of some risk to the persons whose protection Yugoslavia seeks; whereas however the question for the Court is whether the circumstances are such as to 'require' the indication of provisional measures, in accordance with Article 41 of the Statute;
46. Whereas by paragraph 52 A of its Order of 8 April 1993 the Court, having indicated that Yugoslavia should take all measures within its power to prevent genocide, indicated what 'in particular' were the appropriate measures to be taken by Yugoslavia in the circumstances of the case, where the risk was of genocide not on Yugoslav territory but in Bosnia-Herzegovina; whereas furthermore, as the Court noted in paragraph 45 of its Order of 8 April 1993, both Yugoslavia and Bosnia-Herzegovina are under a clear obligation to do all in their power to prevent the commission of any acts of genocide, and by paragraph 52 B of that Order the Court indicated that both Bosnia-Herzegovina and Yugoslavia should not take any action and should ensure that no action is taken which might aggravate or extend the existing dispute over the prevention or punishment of the crime of genocide, or render it more difficult of solution; whereas the Court does not find that the circumstances, as they now present themselves to the Court, are such as to require a more specific indication of measures addressed to Bosnia-Herzegovina so as to recall to it both its undoubted obligations under the Genocide Convention, and the need to refrain from action of the kind contemplated by paragraph 52B of the Court's Order of 8 April 1993" (I.C.J. Reports 1993, pp. 346-347);
37. Whereas in the light of the foregoing, the Court considers that the counter-claims submitted by Yugoslavia are directly connected with the subject-matter of Bosnia and Herzegovina's claims; and whereas, as counter-claims, they are therefore admissible and form part of the present proceedings;
[pp. 259-260] 38. Whereas a decision given on the admissibility of a counter-claim taking account of the requirements of Article 80 of the Rules of Court in no way prejudges any question with which the Court would have to deal during the remainder of the proceedings;
39. Whereas in order to protect the rights which third States entitled to appear before the Court derive from the Statute, the Court instructs the Registrar to transmit a copy of this Order to them;
40. Whereas when, in accordance with the provisions of its Rules, the Court decides, in the interests of the proper administration of justice, to rule on the respective claims of the Parties in a single set of proceedings, it must not, for all that, lose sight of the interest of the Applicant to have its claims decided within a reasonable time-period;
41. Whereas, during the meeting which the President of the Court held on 22 September 1997 with the Agents of the Parties (see paragraph 7 above), the Agent of Bosnia and Herzegovina indicated that his Government requested that the case be decided as soon as possible, was opposed to any further exchange of written pleadings on the merits and asked the Court immediately to set a date for the opening of the oral proceedings; whereas the Agent of Yugoslavia, conversely, made it known that, if the proceedings were to go forward, his Government wished to have a second round of written pleadings on the merits; whereas the two Agents were invited to express their views as to suitable time-limits to be fixed for the filing of further pleadings in the event that the Court decided that their submission was necessary; and whereas the Agent of Bosnia and Herzegovina specified, inter alia, that his Government would be in a position to present a Reply six months from the date of filing of the Counter-Memorial of Yugoslavia - that is, no later than 23 January 1998 - whether or not the Reply had to respond to the counter-claims made by Yugoslavia in its Counter-Memorial;
42. Whereas, taking into account the conclusions it has reached above regarding the admissibility of the Yugoslav counter-claims, the Court considers that it is necessary for Bosnia and Herzegovina to file a Reply and for Yugoslavia to file a Rejoinder relating to the claims of both Parties; and whereas it is necessary moreover, in order to ensure strict equality between the Parties, to reserve the right of Bosnia and Herzegovina to present its views in writing a second time on the Yugoslav counter-claims, in an additional pleading which may be the subject of a subsequent Order;
[p. 267] (ii) the Court fully master of the proceedings conducted on the basis of paragraph 3 of Article 80 of the Rules of Court?
This question results from the fact that, in this particular case, the Court did not hear the Parties. The decision of the Court not to conduct hearings seems rational to me, because it rests upon the founded belief that, through the written observations of the Parties, it obtained a complete picture of all relevant matters, which enabled it to exercise its jurisdiction, on the basis of Article 80 of the Rules of Court.
Unfortunately, it should be said in the interest of truth that paragraph 3 of Article 80 of the Rules of Court does not favour such rational determination by the Court.
Paragraph 3 of Article 80 stipulates in imperative wording that, inter alia, "the Court shall, after hearing the parties, decide whether or not the question thus presented shall be joined to the original proceedings" (emphasis added). It is highly doubtful whether the exchange of written statements by the parties may be a substitute for "hearing", since "hearing" as a term of the procedure before the Court denotes, in the sense of Article 43, paragraph 5, and Article 51 of the Statute, oral proceedings before the Court. The exchange of written statements by the parties would suffice for hearing the parties under Article 68 of the 1972 Rules of Court which, instead of the phrase "after hearing the parties", contained the phrase "after due examination", a phrase leaving room for liberal interpretation. It appears that paragraph 3 of Article 80 of the Rules of Court does not permit liberal interpretation.
For as Rosenne says, the phrase "after hearing the parties" means that:
"in future there will always be some oral proceedings in the event of doubt ... as to the connection between the question presented by way of counter-claim and the subject-matter of the claim of the other party" (S. Rosenne, Procedure in the International Court. A Commentary on the 1978 Rules of the International Court of Justice, 1983, p. 171).
There are reasonable grounds for assuming that in future the Court may find itself in a situation where it has to choose between submission to rigid rules or flexibility, which opens the path to better administration of justice. Consequently, a revision of paragraph 3 of Article 80 of the Rules of Court seems desirable to me, in order that the rational determination of the Court might not be at variance with the, in this case unnecessarily, rigid rule of procedure.
[pp. 275-276] As the Court itself has acknowledged, the idea of a counter-claim is essentially to achieve procedural economy whilst enabling the Court to have an overview of the respective claims of both parties and to decide them more consistently. However, and as the Court has also pointed out, the admissibility of the counter-claims must of necessity relate to the aims thus pursued and be subject to conditions designed to prevent abuse, thus when in the interests of the proper administration of justice the Court is required to rule on the respective claims of the parties in one sole set of proceedings, the Court must not, for all that, lose sight of the interests of the main Applicant to have its claim decided within a reasonable time period.
From this perspective, one cannot view with equanimity or fail to be concerned by the effect the Court's decision to join the counter-claims to the original Application at this stage would appear to have on the sound and proper administration of justice, and in particular on the interests of the Applicant to have its claim decided within a reasonable time-frame.
As we have noted above, this is not to say that all the steps taken so far, by both Parties and the Court, have not been in accordance with the Statute and Rules of Court. That the Court should maintain its judicial impartiality and objectivity at all times and ensure that the arguments of both sides to this dispute are given a fair hearing is beyond question. Nonetheless, the Court, in considering and applying Article 80, paragraph 3, of the Rules, should have carried out this exercise in such a way as to prevent further delay in this matter since that delay could give the appearance of further extending the gestation period of this case and the delay of justice.
[pp. 276-277] Article 80, paragraph 3, of the Rules of Court provides as follows:
"In the event of doubt as to the connection between the question presented by way of counter-claim and the subject-matter of the claim of the other party the Court shall, after hearing the parties, decide whether or not the question thus presented shall be joined to the original proceedings."
It is also my considered view that in exercising its discretion under this provision and before reaching its decision, the Court should have granted oral hearings to the Parties especially since, even according to the Parties' own submissions, their respective claims do not stem from the same facts, although those facts form part of the same factual complex in the eyes of the Court. The Order, inter alia, states that a counter-claim cannot be used to impose on the Applicant any claim the Respondent may choose, since this could entail the risk of infringing the Applicant's rights and of compromising the proper administration of justice. It therefore seems to me that the Court, in exercising its discretion under this provision, should have done so in such a way as to avoid further delay in such a serious matter and to avoid running the risk that its Order on the Respondent's claims might appear to compromise the proper administration of justice. I am convinced that this was not the Court's intention. However, in my view since the issue of counter-claims is not often visited by the Court, particularly where the Court is called upon to make a ruling, and since the Rules of Court aim, among other things, to simplify and expedite the procedure of the Court, it is perhaps now not untimely for the relevant provisions of the Rules to be reviewed, and if necessary, adapted to a changing world as well as to the pace of events.
[pp. 278-279 S.O. Lauterpacht] 4. The Court has taken the view that the requirement of "hearing the parties" can, in the present case, be satisfied by giving each of them the opportunity of presenting its views in writing. The position taken by the Court is supported by its practice in respect of some, but not all, other matters covered by a similar requirement, for example, the nomination of ad hoc judges. Article 35, paragraph 4, of the Rules provides that: "In the event of any objection or doubt, the matter shall be decided by the Court, if necessary after hearing the parties." Again, in relation to the problem of appointing an ad hoc judge that arises when two or more parties may be in the same interest, Article 36, paragraph 2, provides that "the matter may be decided by the Court, if necessary after hearing the parties". Likewise, Article 56, paragraph 2, relating to the authorization of the production of documents after the closure of the written proceedings, contains a similar formula, as does Article 67. In regard to these matters, the practice of the Court has been merely to give the parties the opportunity to present their views in writing.
5. Even so, that interpretation is not one that immediately springs to mind in respect of so substantial an issue as the admissibility of counterclaims. It is to be recalled that the Rule on counter-claims (Art. 80) appears immediately after the rule on preliminary objections (Art. 79) and that both are classed together in Section D of the Rules, under the heading "Incidental Proceedings". A similar requirement of hearing the parties appears also in Article 79, paragraph 7, and has regularly been met by the holding of oral proceedings. Even if the Court retains a discretion to decide in a given case that such proceedings need not be held, the present case is one in which the relative merits and the complexity of the issues involved would certainly have warranted giving the parties the additional opportunity of commenting orally on each other's arguments and the Court the opportunity of the more extended consideration of the matter that would have been involved in the holding of a hearing and in the deliberations that would then have followed - the more so as such a step would also have met the expressed expectations of the Parties.
[pp. 281-282 S.O. Lauterpacht] 11 . It thus appears that Bosnia supports what may be called a "restrictive" interpretation of the requirement of "direct connection", while Yugoslavia advances a "broad" one. For Bosnia there must be an identity of the alleged victims as there must be of the material perpetrators; the judicial analysis of the facts in the counter-claim must have a relationship to, or must be of help in, the examination of the facts in the principal claim. For Yugoslavia it is sufficient that the counter-claim "raised the question of genocide of the Serbs as one relevant to contradicting facts presented by the Applicant as being relevant for attributing alleged acts to the Respondent".
12. In the present case, the choice between these two approaches must depend to a large extent on the nature of the concept "genocide". Can what we conceive of as amounting to genocide be constituted by a single act of a horrific nature? Or can it only be constituted by a series of acts which, while individually being no more than murder or causing serious bodily harm to individuals or such like, are, when viewed cumulatively, evidence of a pattern of activity amounting to genocide?
13. The second alternative seems logically to be the more cogent. A single murder or other horrific act cannot be genocide. Only a series or accumulation of such acts, if they reveal collectively the necessary intent and are directed against a group identifiable in the manner foreseen in Article 11 of the Convention, will serve to constitute genocide - whereupon liability for the individual component crimes, as well as for the special crime of genocide, will fall not only upon the individuals directly responsible but also upon the State to which their acts are attributable.
14. Approached thus, it is not possible to require that the facts underlying a counter-claim in respect of genocide must have their direct connection with the individual and specific acts forming the basis of the principal claim of genocide. It is sufficient that the acts invoked as constituting the basis of the counter-claim should be directly connected with the principal claim by reason of their occurrence in the course of the same conflict. Indeed, it may be suggested that the policy underlying the prohibition of genocide favours this broader view since the particular obligations of respect for human rights embodied in the Genocide Convention are ones which rest with equal weight upon all persons involved. It is upon this basis that 1 agree with the conclusion of the Court that the Yugoslav counter-claim is admissible.
[p. 284 S.O. Lauterpacht] The Court has an inherent power and duty to ensure the orderly an effective administration of justice. Cases should be heard with all deliberate speed. To these ends the Court enjoys a significant measure of discretion. It is not controlled by the letter of Article 80 of its Rules. It should be recalled that, in contrast with many of the Rules of the Court, Article 80 does not have its source in any obligatory provision of the Court's Statute. In Article 80 the Court is not laying down a procedure for the implementation of its statutory duty; it is only exercising the general power conferred on it by Article 30 of the Statute to "frame rules for carrying out its functions". The Court has seen the consideration of counter-claims as a possible aspect of its functions and so, of its own initiative, it has framed certain rules. But it is not rigidly or perpetually bound by these Rules. It is free, and, indeed, obliged, to apply them reasonably and to adjust their application to the circumstances of the case before it.
19. It would, therefore, have been open to the Court to have exercised its discretion in the present case by declining to join the otherwise admissible counter-claims to the principal claims. The principal factor that could have been invoked to justify the separation of the treatment of the claims and counter-claims is the immense additional complexity to which the treatment of the counter-claims simultaneously with the claims is b d to ive rise.
[p. 285 S.O. Lauterpacht] 20. The question is, however, whether the Court could exercise its discretion to defer the consideration of the material contained in the Yugoslav counter-claim until after it has disposed of the Bosnian claim without improperly depriving Yugoslavia of its right to deploy those defences that the latter thinks are necessary as a response to the Bosnian claim. The answer in this case is no. It appears from the Yugoslav Statement of 23 October 1997 in reply to Bosnia's Statement of 9 October 1997 that Yugoslavia considers that the material it has advanced in Part 11 of its Counter-Memorial (the "counter-claim" part) is also an essential ingredient of its defence to the principal Bosnian claim. It is impossible for the Court at this stage of the case to attempt to assess the extent to which the material in Part 11 of the Yugoslav Counter-Memorial is or is not proper for use as a defence to the Bosnian principal claim. Also, the Court cannot disregard the possibility that the Yugoslav Counter-Memorial is advancing a tu quoque argument.
[p. 289 D.O. Weeramantry] To my mind, a counter-claim is what its name implies - that it is a leg, claim or factual situation alleged by the respondent that counters the claim set up by the applicant. The mere fact that it is a claim made by the respondent in the same proceedings is not enough. The mere fact that it pays back the plaintiff in the same coin, so to speak, does not make it a counter-claim. The juristic concept of a counter-claim has more to it than mere parallelism or reciprocity. There must be some point of intersection between the claims, which makes one exert an influence upon the dicial consequence of the other.
[p. 291 D.O. Weeramantry] A claim that is autonomous and has no bearing on the determination of the initial claim does not thus qualify as a counter-claim. Especially would this be so of a vast catalogue of criminal acts which is advanced as a "counter-claim" to a vast catalogue of similar criminal acts alleged by the applicant. The juristic thread which is necessary to link the two as claim and counter-claim is lacking, for neither the second catalogue nor any component item thereof is an answer to the first catalogue or any of its component items. The two stand separate and distinct, as two separate and independent subjects of enquiry.
[p. 292-293 D.O. Weeramantry] An act of genocide by the applicant cannot be a counter-claim to an act of genocide by the respondent. Each act stands untouched by the other, in drawing upon itself the united condemnation of the international community.
On more than one occasion, this Court has stressed this aspect of genocide in the strongest terms. In its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, it observed:
"In such a convention, the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d'être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties."1
The Genocide Convention takes us beyond the realm of crimes against any
particular State, and into the realm of crimes against humanity, where the
notion of balancing of individual State interests is unthinkable.
This Court has therefore stressed more than once the erga omnes
character of the rights and obligations flowing from the Convention, which
makes the wrongdoers responsible to the international community as a whole.2
As Bosnia and Herzegovina argues, Yugoslavia's Counter-Memorial is in two parts. One part consists of a reply to the accusations contained in Bosnia and Herzegovina's Memorial. It consists, inter alia, of evidence and materials of the sort which a Court must necessarily take into account in determining the principal claim - material which every respondent to a charge of crime has an undoubted right to place before the Court. This material must, of course, be considered by the Court within the ambit of the present proceedings.
The second part, however, which is twice as voluminous, treads different ground. It proceeds from the defensive to the offensive and alleges that the complainant itself is guilty of the very same category of offences with which the Respondent is charged. An accused person is always entitled to make such allegations in separate proceedings if they can be proved, but not as a counter-claim to the original charge. The facts may be relevant by way of mitigation of the original charge, but not as the substance of an independent claim.
These allegations cannot therefore be considered to be a counter-claim within the meaning of Article 80, enabling it to be heard within the framework of the current case.
The Respondent pleads that the facts presented in Part Two, Chapter VII, of the Counter-Memorial, "i.e., crimes of genocide committed against the Serb people in Bosnia and Herzegovina are part and parcel of the circumstances of the situation"3. Even if this be so, they still remain separate acts of genocide. Even on the assumption that the acts of genocide alleged against Bosnia and Herzegovina are proved, the acts of genocide alleged against Yugoslavia do not lose their gravity.
[p. 294 D.O. Weeramantry] Circumstances exist in the present case which, in my view, should incline the Court, even if all the other prerequisites are satisfied, to use its discretion against the joinder of the Respondent's application to that of the Applicant.
In the first place, the case of the Applicant has been pending before this Court since 1993, and now, at the end of 1997, when the case is nearly ripe for hearing, the Applicant is entitled to an expeditious disposal of this matter. What is sought to be introduced by way of a counter-claim four years later, which is in reality another claim of the same magnitude as the claim of the Applicant, will necessarily have the effect of further delaying the hearing of the Applicant's claim.
Furthermore, not only will there be delay in bringing the allegations of the Respondent to a state of readiness for hearing, but the actual process of hearing will itself be prolonged. The claim of Bosnia and Herzegovina is complex enough already, with vast numbers of allegations of fact to be probed and proved. That itself is a task which would probably require several weeks, if not months, of hearing. To combine this massive set of allegations with a fresh set of allegations of like magnitude will considerably lengthen the time necessary for the hearing of the case. Delay in actual hearing, added to delay in preparation for hearing, could well defeat the ends of justice.
[p. 297 D.O. Weeramantry] Another consideration which I view as militating strongly against the Respondent's contention that its claim against Bosnia and Herzegovina should be joined to Bosnia and Herzegovina's claim against itself, is that the alleged counter-claim also involves the conduct of Croatia. A "counter-claim" between the immediate parties to litigation is one thing. But a counter-claim involving a third party is another. Both convenience and judicial economy could be adversely affected by the joinder to a claim of a "counter-claim" involving a third party.
Furthermore, from the standpoint of practical considerations, this
introduces yet another element of delay. Croatia would have to be given notice
of its involvement and would be entitled to file its response to whatever
allegations are made against it. It would need time to do so, in addition to
such time as is already involved in the joinder of the two claims. New witnesses
may well be necessary, thus adding further complications to the already
difficult task imposed on the Court of examining the allegations made by each
Party against the other.
For these reasons, I consider that the joinder of a claim involving a third
party, namely, Croatia, militates against the spirit and purpose of the Court's
procedural provisions relating to counter-claims - and particularly so in the
circumstances of this case.
| 1 | I.C.J. Reports 1951, p. 23. |
| 2 | Barcelona Traction, Light and Power Company, Limited, I.C.J. Reports 1970, p. 32, para. 33; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, I.C.J. Reports 1996, p. 22, para. 31. |
| 3 | Footnote omitted |
