18 NOVEMBER 2008

JUDGMENT

CASE CONCERNING APPLICATION OF THE CONVENTION ON THE

PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE

(CROATIA v. SERBIA)

PRELIMINARY OBJECTIONS

___________

AFFAIRE RELATIVE À L’APPLICATION DE LA CONVENTION POUR

LA PRÉVENTION ET LA RÉPRESSION DU CRIME DE GÉNOCIDE

(CROATIE c. SERBIE)

EXCEPTIONS PRÉLIMINAIRES

18 NOVEMBRE 2008

ARRÊT
 TABLE OF CONTENTS

Paragraphs

Chronology of the procedure 1-22

I. Identification of the respondent Party 23-34

II. General overview of the arguments of the Parties 35-42

III. Brief history of the status of the FRY with regard to the United
Nations 43-51

IV. Relevance of previous decisions of the Court 52-56

V. Preliminary objection to the jurisdiction of the Court

(1) Issues of capacity to be a party to the proceedings 57-92
(2) Issues of jurisdiction ratione materiae 93-117
(3) Conclusions 118-119

VI. Preliminary objection to the jurisdiction of the Court and to

admissibility, ratione temporis 120-130

VII. Preliminary objection concerning the submission of certain

persons to trial; the provision of information on missing
Croatian citizens; and the return of cultural property 131-144

VIII. Operative clause 146

___________
 INTERNATIONAL COURT OF JUSTICE

YEAR 2008
2008
18 November
General List
No. 118
18 November 2008

CASE CONCERNING APPLICATION OF THE CONVENTION ON THE

PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE

(CROATIA v. SERBIA)

PRELIMINARY OBJECTIONS

JUDGMENT

Present: President Vice-President Judges

Judges
Registrar

between
and
delivers the following Judgment:
ad hoc
inter alia
For Croatia:

For Serbia

(a)
(a) (b) (c) (d)
(a) (b) (c) (d) (e)

(b)
parens patriae
On behalf of the Government of Croatia,

(a)

(b)
(a)

(c) (a)

(d)

(a) (b
 (a)

(a) (b)

(b)

(c)

(d) parens patriae

On behalf of the Government of Serbia,

Or, in the alternative,

(a)

and

(b)
On behalf of the Government of Croatia,

On behalf of the Government of Serbia,

adjudge and declare:

or, in the alternative:

(a)

(b)
On behalf of the Government of Croatia,

reject

adjudge and declare

I. Identification of the respondent Party

inter alia
 Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina Serbia and Montenegro)
 Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina Serbia and Montenegro)

Application of the Convention on the Prevention and

Punishment of the Crime of Genocide (Bosnia and Herzegovina Serbia and Montenegro)

Certain Phosphate Lands in Nauru (Nauru

Australia)
Preliminary Objections, Judgment, I.C.J. Reports
1992
II. General overview of the arguments of the Parties

Legality of Use of Force

 (a)

ratione temporis

Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports
1996 (II)
ratione temporis

(a)

(a)

(b)

(c)
III. Brief history of the status of the FRY with regard to the United Nations
 Legality of Use of Force

Legality of
Use of Force (Serbia and Montenegro Belgium), Preliminary Objections, Judgment,
I.C.J. Reports 2004

sui generis
ibid. I.C.J. Reports 2003
 [h]aving received
[h]aving considered

IV. Relevance of previous decisions of the Court

Application of the Convention on the Prevention and

Punishment of the Crime of Genocide (Bosnia and Herzegovina Serbia and Montenegro)

Application for
Revision of the Judgment of 11 July 1996
v.
(Yugoslavia Bosnia and Herzegovina)
Legality of Use of Force

res judicata

Land
and Maritime Boundary between Cameroon and Nigeria (Cameroon Nigeria: Equatorial Guinea
intervening)

Preliminary Objections, Judgment, I.C.J. Reports 1998

Legality of Use of Force

V. Preliminary objection to the jurisdiction of the Court

(1) Issues of capacity to be a party to the proceedings

 ipso facto

Legality of Use of Force

 sui generis

Mavrommatis Palestine Concessions Judgment No. 2, 1924, P.C.I.J., Series A, No. 2

Legality of Use of Force

ratione personae
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina Serbia and Montenegro)

ratione
materiae

ratione materiae

Legality of Use of Force

Legality of Use of Force (Serbia and Montenegro Belgium), Preliminary Objections,
Judgment, I.C.J. Reports 2004

(ibid.)

ratione materiae

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

of Genocide (Bosnia and Herzegovina Serbia and Montenegro)
 ratione materiae

(ibid.)

ratione materiae

Ibid.

Application of the Convention on the

Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina Yugoslavia)
(Preliminary Objections, Judgment, I.C.J. Reports 1996 (II)
res judicata
res judicata
de novo
 Legality of Use of Force inter
alia travaux préparatoires

Legality of Use
of Force (Serbia and Montenegro Belgium), I.C.J. Reports 2004, Preliminary Objections,
Judgment

res judicata
 Legality of Use of Force

Application for Revision of the Judgment of 11 July 1996 in the Case

concerning
v. (Yugoslavia v. Bosnia
and Herzegovina), Judgment, I.C.J. Reports 2003

sui generis

sui generis

Legality of Use of Force (Serbia and Montenegro

Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004
 res judicata

ratione
materiae

ratione materiae

Application of the Convention on the Prevention

and Punishment of the Crime of Genocide (Bosnia and Herzegovina Yugoslavia), Preliminary
Objections, Judgment, I.C.J. Reports 1996 (II) Questions of Interpretation
and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports
1998
 ratione
personae

Mavrommatis Palestine Concessions

Judgment No. 2, 1924, P.C.I.J., Series A, No. 2

 Certain German Interests in
Polish Upper Silesia

Jurisdiction, Judgment No. 6, 1925, P.C.I.J., Series A, No. 6

Northern Cameroons (Cameroon United Kingdom) (Preliminary Objections, Judgment,

I.C.J. Reports 1963 Military and Paramilitary Activities in and
against Nicaragua (Nicaragua United States of America)

Jurisdiction and Admissibility, Judgment,

I.C.J. Reports 1984

Application of the Convention on the Prevention

and Punishment of the Crime of Genocide (Bosnia and Herzegovina Yugoslavia) Preliminary
Objections, Judgment, I.C.J. Reports 1996 (II)

Ibid.
 Legality of Use of Force

compétence de la compétence

Mavrommatis
Palestine Concessions

ratione materiae ratione personae

compétence de la compétence
 Legality of Use of Force
a fortiori

compétence de la competence

ratione materiae ratione temporis

Mavrommatis

Legality of Use of Force (Serbia and Montenegro

Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004
 Mavrommatis

Mavrommatis
(2) Issues of jurisdiction ratione materiae

ratione materiae

ratione
personae
 Nottebohm (Liechtenstein Guatemala) Preliminary Objection, Judgment,
I.C.J. Reports 1953

Military and
Paramilitary Activities in and against Nicaragua (Nicaragua United States of America), Merits,
Judgment, I.C.J. Reports 1986

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

of Genocide (Bosnia and Herzegovina Serbia and Montenegro)
ad hoc
 Application for Revision of the Judgment of 11 July 1996 in
the Case concerning
v. (Yugoslavia
Bosnia and Herzegovina)

ipso jure

Application of the Convention on the Prevention and

Punishment of the Crime of Genocide (Bosnia and Herzegovina Serbia and Montenegro)

Application for Revision of the Judgment of 11 July 1996

Legality of Use of Force

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

ad hoc

.
 Armed Activities on the
Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo Rwanda)
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006

(g)
any
notification, however framed or named

North Sea Continental Shelf (Federal Republic of

Germany/Denmark; Federal Republic of Germany/Netherlands)

Judgment, I.C.J.
Reports 1969
 parties
accede

Application of the Convention on the Prevention and Punishment

of the Crime of Genocide (Bosnia and Herzegovina Serbia and Montenegro)

Preliminary Objections, Judgment, I.C.J. Reports 1996 (II)

Application of the Convention

on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports
1993 ibid.

(inter alia)

(inter alia) Legality of Use

of Force (Serbia and Montenegro Belgium), Preliminary Objections, Judgment, I.C.J. Reports
2004
 Legality of Use of Force sui
generis Legality of
Use of Force (Serbia and Montenegro Belgium), Preliminary Objections, Judgment, I.C.J.
Reports 2004
(3) Conclusions
VI. Preliminary objection to the jurisdiction of the Court and to admissibility,
ratione temporis

(a)

Oil Platforms
(Islamic Republic of Iran United States of America)

Judgment, I.C.J. Reports 2003

in limine
litis

East Timor (Portugal Australia), Judgment, I.C.J. Reports 1995

Avena and Other Mexican Nationals (Mexico United States of America),
Judgment, I.C.J. Reports 2004 ).

(a),

ratione temporis
 before

ratione temporis
Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina Yugoslavia

ratione temporis

since the beginning of the conflict which took

place in Bosnia and Herzegovina I.C.J. Report 1996 (II)

res judicata

ratione
temporis
statu nascendi

in statu nascendi

in statu nascendi
 Military and Paramilitary Activities in and against Nicaragua (Nicaragua United
States of America)

Merits,
Judgment, I.C.J. Reports 1986 Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya United Kingdom), Preliminary Objections, I.C.J. Reports 1998

ratione temporis

ratione
temporis

VII. Preliminary objection concerning the submission of certain persons to trial the
provision of information on missing Croatian citizens; and the return of cultural
property

(b)
 (a) (b) (c)

inter alia
Military and Paramilitary Activities in and
against Nicaragua (Nicaragua United States of America), Merits, Judgment, I.C.J. Reports
1986

(i) Submission of persons to trial

(a)

(a) (b)
 (a)

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

Genocide (Bosnia and Herzegovina Serbia and Montenegro)

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

Genocide (Bosnia and Herzegovina Serbia and Montenegro)

Avena and Other

Mexican Nationals (Mexico United States of America), Judgment, I.C.J. Reports 2004
(ii) Provision of information on missing Croatian citizens

(b)

(b)

(b)
 (iii) Return of cultural property

(c)

Application of the Convention on the Prevention and

Punishment of the Crime of Genocide (Bosnia and Herzegovina Serbia and Montenegro)

(ibid.)
res judicata

a priori

(b)
 (c)

(c)

(iv) Conclusion

(b)
(a) (b) (c)

VIII. Operative clause

Rejects
 President Vice-President Judges
Judge

Judges
Judge

Rejects
ratione materiae

President Vice-President Judges

Judge

Judges Judge

Finds

President Vice-President Judges

Judge

Judges
Judge

Finds

President Vice-President Judges

Judge

Judges Judge

Rejects

President Vice-President Judges

Judge

Judges Judge
 (Signed)

(Signed)

ad hoc
ad hoc

(Initialled)

(Initialled)