Croatia v Serbia

• Jurisdiction: Derecho Internacional
• Judge: Higgins,Al-Khasawneh,Ranjeva,Shi,Koroma,Parra-Aranguren,Buergenthal,Owada,Simma,Tomka,Abraham,Keith,Sepúlveda-Amor,Bennouna,Skotnikov,Vukas,Kreća,Cançado Trindade,Yusuf,Greenwood,Xue,Donoghue,Gaja,Sebutinde,Bhandari
• Judgment Date: 03 February 2015
• Court: International Court of Justice

Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Croatia

and

Serbia)1

(Higgins, President;Al-Khasawneh, Vice-President;Ranjeva, Shi, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Judges; Vukas2 and Kreća,3Judges ad hoc)

(Tomka, President;Sepúlveda-Amor, Vice-President;Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Judges; Vukas and Kreća, Judges ad hoc)

International Court of Justice

Preliminary Objections.

Merits.

Human rights — Genocide — Definition of genocide — Convention for the Prevention and Punishment of the Crime of Genocide, 1948 — Actus reus of genocide — Mens rea — Specific intent to destroy protected group — Dolus specialis — Proof — Whether existence of intent can be inferred from pattern of conduct — Relationship between genocide and other violations of humanitarian law and human rights — Ethnic cleansing — Responsibility for genocide — Whether genocide established in principal claim — Whether genocide established in counterclaim — Armed conflict in territory of Croatia in 1991–95 — Whether breaches of Genocide Convention

International Court of Justice — Jurisdiction — Scope — Consent to jurisdiction — Basis for jurisdiction — Article IX of Genocide Convention — Court confined to disputes regarding genocide — Whether dispute between Parties falling within Article IX of Genocide Convention — Respondent raising preliminary objections relating to jurisdiction of Court and admissibility of Application — Whether Court having jurisdiction to entertain Croatia's Application

International Court of Justice — Jurisdiction — Scope — Basis for jurisdiction — Article IX of Genocide Convention — Whether Court having jurisdiction — Respondent's first preliminary objection — Capacity to participate in proceedings before Court — Articles 34 and 35 of Statute of Court — Whether Parties satisfying general conditions — Whether Respondent having access to Court on basis of Article 35(1) of Statute — Admission to United Nations on 1 November 2000 — Whether Respondent acquiring status of party to Statute of Court on 1 November 2000 — Whether Court “open” to Respondent — Issues of jurisdiction ratione materiae — Declaration and Note of 27 April 1992 — Nature and effect on position of the Federal Republic of Yugoslavia in relation to Genocide Convention — Whether declaration having effect of notification of succession to treaties — Whether Respondent party to Genocide Convention, including Article IX, at date of institution of proceedings until at least 1 November 2000 — Whether Court having jurisdiction to entertain Croatia's Application

International Court of Justice — Jurisdiction — Scope — Basis for jurisdiction — Article IX of Genocide Convention — Whether Court having jurisdiction — Respondent's second preliminary objection — Issues of jurisdiction ratione temporis — Whether claims based on acts and omissions which took place prior to 27 April 1992 beyond jurisdiction of Court and inadmissible — Distinction between objection to jurisdiction and objection to admissibility — Whether second preliminary objection possessing an exclusive preliminary character — Whether possible to determine questions raised by objection without determining issues properly pertaining to merits — Whether Court having jurisdiction to entertain Croatia's Application

International Court of Justice — Jurisdiction — Scope — Basis for jurisdiction — Article IX of Genocide Convention — Whether Court having jurisdiction — Respondent's third preliminary objection — Whether claims referring to submission of persons to trial within jurisdiction of Court — Whether claims concerning provision of information on missing Croatian citizens within jurisdiction of Court — Whether claims concerning return of cultural property within jurisdiction of Court — Whether Court having jurisdiction to entertain Croatia's Application

International Court of Justice — Jurisdiction — Scope — Basis for jurisdiction — Article IX of Genocide Convention — Issues of jurisdiction and admissibility to be determined at merits stage — Issues of jurisdiction ratione temporis — Whether Court's jurisdiction extending to acts prior to 27 April 1992 — Whether provisions of Genocide Convention retroactive — Logic — Article 28 of Vienna Convention on the Law of Treaties, 1969 — Whether acts said to have occurred before 27 April 1992 falling within scope of jurisdiction under Article IX due to Article 10(2) of International Law Commission's Articles on State Responsibility — Whether acts said to have occurred before 27 April 1992 falling within scope of jurisdiction under Article IX due to law of State succession — Whether Respondent bound by obligations under Genocide Convention — Whether Court having jurisdiction to entertain Croatia's Application with respect to acts prior to 27 April 1992

State succession — Socialist Federal Republic of Yugoslavia — Dissolution — Republics becoming independent States — Distinction between successor State and continuing State — Federal Republic of Yugoslavia claiming to be continuation of the Socialist Federal Republic of Yugoslavia — Serbia and Montenegro — Republic of Serbia — Consent to jurisdiction of International Court of Justice — Whether Serbia sole Respondent — Treaty commitments — Genocide Convention — Whether Federal Republic of Yugoslavia party by succession to Genocide Convention — Membership of United Nations — Status and position of Respondent State in relation to the Statute of the International Court of Justice and to Genocide Convention

Treaties — Accession — Parties — Signature — Ratification — Genocide Convention — Process by which State becoming bound by treaty as successor State or remaining bound by treaty as continuing State — Signature of Genocide Convention by the Socialist Federal Republic of Yugoslavia on 11 December 1948 — Socialist Federal Republic of Yugoslavia depositing instruments of ratification, without reservation, on 29 August 1950 — Whether the Federal Republic of Yugoslavia party by succession to Genocide Convention from beginning of its existence as a State — Declaration and Note of 27 April 1992 — Nature and effect on position of the Federal Republic of Yugoslavia in relation to Genocide Convention — Whether Serbia party to Convention at date of Application on 2 July 1999

Treaties — Interpretation — Application — Genocide Convention — Applicable law — Article II of Genocide Convention — Constituent elements of genocide — Actus reus and mens rea of genocide — Dolus specialis — Requirement of specific intent to destroy group in whole or part — Evidence — Mens rea of genocide — Meaning and scope of destruction of group — Destruction of group in part — Evidence of dolus specialis — Actus reus of genocide — Relationship between Genocide Convention and international humanitarian law — Meaning and scope of physical acts — Whether genocide established in principal claim — Whether alleged acts established — Whether falling into categories listed in Article II of Genocide Convention — Whether committed with intent to destroy protected group, in whole or in part — Quantitative element — Geographic location — Pattern of conduct — Whether genocide established in counter-claim — Whether breaches of Genocide Convention

International criminal law — Genocide — Definition of genocide — Obligations under Genocide Convention — Role of International Criminal Tribunal for the former Yugoslavia — Proof of genocide

Evidence before international courts and tribunals — Evidence — Burden of proof — Standard of proof — Methods of proof — Relevance of findings by International Criminal Tribunal for the Former Yugoslavia — Whether conclusive evidence crimes committed — Whether conclusive evidence regarding attribution of acts

State responsibility — Attribution — Responsibility of State for acts of State organs — Engagement of international responsibility of acts unlawful even if author of acts acting contrary to instructions or exceeding authority — International Law Commission's Articles on State Responsibility 2001 — Relevance — Determination of responsibility of State if genocide established — Whether genocide established — Whether breaches of Genocide Convention

War and armed conflict — Armed conflict in territory of Croatia as it had existed within the Socialist Federal Republic of Yugoslavia in 1991–95 — Allegations of acts of genocide — Whether breaches of Genocide Convention

Summary:4The facts:—The Socialist Federal Republic of Yugoslavia (“the SFRY”) consisted of six republics: Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia. During 1991–92 the SFRY underwent a process of dissolution. Croatia, Macedonia and Slovenia proclaimed themselves independent States during 1991. Bosnia and Herzegovina declared itself to be an independent State on 6 March 1992. On 27 April 1992 the republics of Serbia and Montenegro proclaimed the existence of the Federal Republic of Yugoslavia (“the FRY”), later known as “Serbia and Montenegro”. At the same time, they claimed that the FRY continued the legal personality of the SFRY and the membership of the SFRY in the United Nations, as well as participation in the treaties to which the SFRY had become party. The claim that the FRY was the continuation of the SFRY was not accepted by the United Nations or the other former Yugoslav republics. The FRY was subsequently admitted to membership in the United Nations, on 1 November 2000, following a letter written by the FRY's newly elected President to the United Nations Secretary-General requesting admission.

Although the majority of the inhabitants of Croatia were of Croat origin according to the official census at the end of March 1991 (78 per cent), ethnic and national minorities were also represented; 12 per cent of the population was...