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    INTERNATIONAL COURT OF JUSTICE Peace Palace, Carnegieplein 2, 2517 KJ The Hague, NetherlandsTel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928Website: www.icj-cij.org   Summary  Not an official document Summary 2008/518 November 2008 Application of the Convention on the Prevention and Punishmentof the Crime of Genocide (Croatia v. Serbia)Preliminary objectionsSummary of the Judgment of 18 November 2008 Chronology of the procedure and submissions of the Parties (paras. 1-22)The Court recalls that, on 2 July 1999, Croatia filed an Application against the FederalRepublic of Yugoslavia (hereinafter “the FRY”) in respect of a dispute concerning allegedviolations 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 “theGenocide Convention”). The Application invoked Article IX of the Genocide Convention as the basis of the jurisdiction of the Court.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 theCounter-Memorial of the FRY. By an Order dated 10 March 2000, the President of the Court, atthe request of Croatia, extended the time-limit for the filing of the Memorial to 14 September 2000and accordingly extended the time-limit for the filing of the Counter-Memorial of the FRY to14 September 2001. By an Order dated 27 June 2000, the Court extended the time limits to14 March 2001 and 16 September 2002, respectively, for the filing of the Memorial of Croatia andthe Counter-Memorial of the FRY. Croatia duly filed its Memorial within the time-limit thusextended.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 sitin the case: Croatia chose Mr. Budislav Vukas and the FRY chose Mr. Milenko Kre ć a.On 11 September 2002, within the time-limit provided for in Article 79, paragraph 1, of theRules of Court as adopted on 14 April 1978, the FRY raised preliminary objections relating to theCourt’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, paragraph 3, of theRules of Court as adopted on 14 April 1978, the proceedings on the merits were suspended, andfixed 29 April 2003 as the time-limit for the presentation by Croatia of a written statement of itsobservations and submissions on the preliminary objections raised by the FRY. Croatia filed sucha statement within the time-limit thus fixed.  - 2 -By a letter dated 5 February 2003, the FRY informed the Court that, following the adoptionand promulgation of the Constitutional Charter of Serbia and Montenegro by the Assembly of theFRY on 4 February 2003, the name of the State had been changed from the “Federal Republic of Yugoslavia” to “Serbia and Montenegro”. Following the announcement of the result of areferendum 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 adeclaration of independence on 3 June 2006.By letters dated 6 May 2008, the Registrar informed the Parties that the Court asked them toaddress, 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 issuehad not been addressed as such in the written pleadings.Public sittings were held from 26 May to 30 May 2008. At the conclusion of the oral proceedings, the Parties presented the following final submissions to the Court: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, Serbiarequests 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 to27 April 1992 are beyond the jurisdiction of this Court and inadmissible; and(b) that claims referring to  ⎯    submission to trial of certain persons within the jurisdiction of Serbia,  ⎯     providing information regarding the whereabouts of missing Croatiancitizens, and  ⎯    return of cultural propertyare 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 WrittenObservations, as well as those during these oral pleadings, the Republic of Croatiarespectfully requests the International Court of Justice to:(1) reject the first, second and third preliminary objection of Serbia, with theexception of that part of the second preliminary objection which relates to theclaim concerning the submission to trial of Mr. Slobodan Miloševi ć , andaccordingly to(2) adjudge and declare that it has jurisdiction to adjudicate upon the Application filed by the Republic of Croatia on 2 July 1999.”  - 3 -Identification of the respondent Party (paras. 23-34)The Court first observes that it needs to identify the respondent Party before it. It notes that, 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 a referendum held on21 May 2006, the National Assembly of the Republic of Montenegro adopted a declaration of independence, and that“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 ConstitutionalCharter of Serbia and Montenegro”.He further stated that “in the United Nations the name ‘Republic of Serbia’ [was] to be henceforthused instead of the name ‘Serbia and Montenegro’” and added that the Republic of Serbia“remain[ed] responsible in full for all the rights and obligations of the state union of Serbia andMontenegro under the UN Charter”.The Court recalls that, 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 tothe Court the views of their Governments on the consequences to be attached to theabove-mentioned developments regarding the identity of the Respondent in the case. It notes that, by a letter dated 22 July 2006, the Agent of Serbia explained that, in his Government’s opinion,“the Applicant ha[d] first to take a position, and to decide whether it wishe[d] to maintain itssrcinal claim encompassing both Serbia and Montenegro, or whether it [chose] to do otherwise”.By a letter dated 29 November 2006, the Chief State Prosecutor of Montenegro stated that“Montenegro [might] not have [the] capacity of respondent” in the dispute before the Court. TheCourt further notes that, by a letter dated 15 May 2008, the Agent of Croatia confirmed that the proceedings instituted by Croatia on 2 July 1999 were “maintained against [the] Republic of Serbiaas Respondent” and that this conclusion was “without prejudice to the potential responsibility of [the] Republic of Montenegro and the possibility of instituting separate proceedings against it”.The Court observes that the facts and events on which the submissions of Croatia on themerits are based occurred at a period of time when Serbia and Montenegro were part of the sameState. It further notes that Serbia has accepted “continuity between Serbia and Montenegro and theRepublic of Serbia”. Montenegro, on the other hand, is a new State admitted as such to the United Nations. It does not continue the international legal personality of the State union of Serbia andMontenegro.The Court recalls the fundamental principle that no State may be subject to its jurisdictionwithout its consent. It states that Montenegro made clear in its letter of 29 November 2006 that itdoes not give its consent to the jurisdiction of the Court over it for the purposes of the dispute.Furthermore, according to the Court, the events referred to above clearly show that Montenegrodoes not continue the legal personality of Serbia and Montenegro; it cannot therefore haveacquired, on that basis, the status of Respondent in the case. The Court finally notes that theApplicant did not in its letter of 15 May 2008 assert that Montenegro is still a party to the case.The Court thus concludes that Serbia is the sole Respondent in the case.General overview of the arguments of the Parties (paras. 35-42)The Court observes that, in its Application, Croatia, referring to acts which occurred duringthe conflict that took place between 1991 and 1995 in the territory of the former Socialist FederalRepublic of Yugoslavia (hereinafter the “SFRY”), contended that the FRY had committedviolations of the Genocide Convention. The Government of the FRY contested the admissibility of   - 4 -the Application as well as the jurisdiction of the Court under Article IX of the GenocideConvention on several grounds.The Court notes that, with regard to the question of the capacity of the Respondent under Article 35 of the Statute to participate in the proceedings, the Respondent claimed that it did nothave such capacity, because, as the Court had confirmed in 2004 in the cases concerning Legalityof Use of Force, it was not a Member of the United Nations until 1 November 2000 and thereforenot 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 Applicationand that even if that was not the case, the status of Serbia within the United Nations in 1999 did notaffect the proceedings as the Respondent became a Member of the United Nations in 2000 andthereby validly gained capacity to take part in the present proceedings.The Court notes that the Respondent raised a preliminary objection concerning the jurisdiction of the Court on the basis of Article IX of the Genocide Convention. 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 case, which was instituted on2 July 1999, could not be based on Article IX of the Genocide Convention, in view of the fact thatthe FRY did not become bound by the Convention in any way before 10 June 2001, the date atwhich its notification of accession to the Genocide Convention became effective with a reservationregarding Article IX.The Court observes that Serbia also contended that Croatia’s Application was inadmissibleso far as it refers to acts or omissions prior to the FRY’s proclamation of independence on27 April 1992. Serbia stated that acts or omissions which took place before the FRY came intoexistence 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 admissibility 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 limitations to the application of the Genocide Convention and to its exercise of jurisdiction under the said Convention, in theabsence of reservations to that effect. During the oral pleadings, Serbia maintained the alternativeargument that the Court lacked jurisdiction ratione temporis for acts or events that occurred before27 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.The Court finally notes that Serbia maintained that Croatia’s submissions 2 (a), 2 (b) and2 (c) in its Memorial concerning, respectively, the submission to trial of persons suspected of having committed acts of genocide (including Slobodan Miloševi ć ), missing persons and return of cultural property, were “inadmissible and moot.The Court examines each of these arguments in turn.Brief history of the status of the FRY with regard to the United Nations (paras. 43-51)The Court gives a brief account of the disintegration process of the SFRY in the early 1990sand of the decisions of the United Nations with respect to the legal status of the FRY. It recallsinter alia that on 22 September 1992, the General Assembly, acting on the recommendation of theSecurity Council, adopted resolution 47/1, 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 GeneralAssembly. It notes that the “sui generis position which the FRY found itself in” during the period between 1992 to 2000 (as the Court characterized it in a 2003 Judgment) came to an end with aletter dated 27 October 2000 sent by Mr. Koštunica to the United Nations Secretary-General, bywhich the newly elected President of the FRY requested admission of the FRY to membership inthe United Nations. This membership was effective as of 1 November 2000.
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