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The International Court of Justice: Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objection (Croatia v. Serbia)

Published online by Cambridge University Press:  27 February 2017

Jamey Harris
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Type
International Legal Materials
Information
International Legal Materials , Volume 48 , Issue 2 , April 2009 , pp. 268 - 307
Copyright
Copyright © American Society of International Law 2009

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References

End notes

* Jamey Harris is a law clerk for the Honorable Susan P. Graber of the United States Ninth Circuit Court of Appeals. He previously served as a referendaire at the International Court of Justice.

* This text was reproduced and reformatted from the text available at the International Court of Justice website: (visited March 10, 2009) <http://www.icj-cij.org/docket/files/118/14891.pdf>

1 In 2003, the FRY changed its name to the Republic of Serbia and Montenegro. In 2007, the Republic of Montenegro declared its independence, and the Republic of Serbia and Montenegro changed its name to the Republic of Serbia. The Court has held that the Republic of Serbia is the continuator state of the Republic of Serbia and Montenegro. This Introduction follows the Court’s convention of referring to that state as ‘‘Serbia’’ unless the historical context requires otherwise. See 2008 Judgment, infra note 16, ¶ 34.

2 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment on Preliminary Objections (Bosn. & Herz. v. Serb. & Mont.), 1996 I.C.J. 595 (July 11) [hereinafter 1996 Judgment].

3 Id. ¶ 17.

4 Id.

5 Serbia filed individual cases against eight nations: Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, and the United Kingdom. All citations herein are to the Case Concerning Legality of Use of Force, Judgment on Preliminary Objections (Serb. & Mont. v. Belg.), 2004 I.C.J. 279 (Dec. 15).

6 Id. ¶ 129.

7 Id. ¶ 79.

8 Id. ¶ 114.

9 Id.

10 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.) (Judgment of Feb. 26, 2007), available at http://www.icj-cij.org/docket/files/91/13685.pdf (last visited Apr. 28, 2009) [hereinafter 2007 Judgment].

11 Id. ¶¶ 132-40.

12 Id. ¶ 471.

13 Id.

14 Serbia also raised two alternative objections to the scope of the Court’s jurisdiction. The Court rejected one objection— to certain claims involving missing persons, the return of cultural property, and submission of persons to the ICTY— and held that the other objection—concerning whether claims arising from actions taken before 1992 were admissible—was not of purely preliminary character, thus postponing its ruling on that objection until its judgment on the merits. On the claim concerning submission of persons to the ICTY, the Court did note that Croatia had adjusted its arguments to reflect that former President Slobodan Milosevic had been transferred to the ICTY and later had died.

15 See Jason Morgan-Foster and Pierre-Olivier Savoie, World Court finds Serbia Responsible for Breaches of Genocide Convention, but Not Liable for Committing Genocide, ASIL INSIGHT, Apr. 2007, available at http://www.asil.org/in-sights070403.cfm.

16 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment on Preliminary Objections (Croat. v. Serb.), Nov. 18, 2008, available at http://www.icj-cij.org/docket/files/118/14891.pdf (last visited Apr. 28, 2009) [hereinafter 2008 Judgment].

17 Id. ¶¶ 53, 69, 71, 76, 104, 123, 141.

18 Id. ¶ 67.

19 Id.77.

20 Id.

21 Id ¶ 78.

22 Id. ¶ 81.

23 Id. ¶¶ 85, 89.

24 Mavrommatis Palestine Concessions, Judgment, (Greece v. Gr. Brit.), 1924 P.C.I.J., (ser. A) No. 2, at 34 (Aug. 30).

25 Id. at 2, (quoted in 2008 Judgment, supra note 16, ¶ 82).

26 2008 Judgment, supra note 16, ¶ 88.

27 Id. ¶ 89.

28 Id.

29 Id.

30 Some judges who voted with the majority also expressed disagreement, in whole or in part, with the Judgment’s application of the Mavrommatis principle. See, e.g., Separate Opinion of Vice-President Al-Khasawneh; Opinion Individuelle de M. le Juge Abraham.

31 Id. ¶ 14 (Owada, J., dissenting).

32 Id.

33 Id. ¶ 7, (Joint Declaration of Judges Ranjeva, Shi, Koroma, and Parra-Aranguren) [hereinafter Joint Declaration].

34 Id.

35 2008 Judgment, supra note 16, ¶¶ 98-100.

36 Id. ¶¶ 114-16.

37 Id. ¶ 117.

38 Joint Declaration, supra note 33, ¶ 10.

39 2007 Judgment, supra note 10, ¶¶ 205-06.

40 Id. ¶ 62 (Al-Khasawneh J., dissenting).

41 It is unclear whether Croatia has asked the Court to request the minutes in this case. But see 2008 Judgment, supra note 16, ¶ 14 (noting pending requests by Croatia ‘‘that the Court call upon [Serbia] to produce a certain number of documents’’); Id. ¶ 15 (noting ‘‘the Court’s decision not to accede, at this stage of the proceedings, to Croatia’s request,’’ in part because ‘‘the Court was not satisfied that the production of the requested documents was necessary for the purpose of ruling on preliminary objections’’).

42 Id ¶ 134.