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Consistently Inconsistent: The International Court of Justice and the Former Yugoslavia (Croatia v. Serbia)

Published online by Cambridge University Press:  27 February 2017

Yehuda Z. Blum
Yehuda Z. Blum*
Affiliation:
The Hebrew University of Jerusalem
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Type
Notes and Comments
Information
American Journal of International Law , Volume 103 , Issue 2 , April 2009 , pp. 264 - 271
Copyright
Copyright © American Society of International Law 2009

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References

1 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat, v. Serb.), Preliminary Objections (Int’l Ct. Justice Nov. 18, 2008) [hereinafter Croatia case].

2 Id., para. 146(1).

3 Slovenia, Croatia, and Bosnia-Herzegovina were admitted to the United Nations in May 1992. Macedonia (under the name “The Former Yugoslav Republic of Macedonia”) was admitted in April 1993. All these states considered themselves—and were recognized by the international community—as successor states to the SFRY.

4 For a more detailed survey of these events, see Yehuda Z., Blum, Was Yugoslavia a Member of the United Nations in the Years 1992–2000? 101 AJIL 800, 800–01 (2007)Google Scholar.

5 Id. at 801 (quoting SC Res. 757, pmbl. (May 30, 1992), & SC Res. 777, pmbl. (Sept. 25, 1992)).

6 UN Doc. A/47/485, annex (Sept. 30, 1992).

7 UN Doc. A/55/528 -S/2000/1043, annex (Oct. 30, 2000). The new member state initially kept its name “Federal Republic of Yugoslavia” (hereinafter “FRY-II”) but changed it in February 2003 to “Serbia and Montenegro,” and yet again upon the latter’s secession and admission to the United Nations in June 2006, to “Serbia.” Blum, supra note 4, at 800 n.2.

8 Id. at 802–03, 812–13.

9 The preceding four judgments are discussed in Blum, supra note 4.

10 Legality of Use of Force (Serb. & Mont. v. Belg.), Preliminary Objections, 2004 ICJ Rep. 279, 299, para. 46 (Dec. 15) [hereinafter NATO cases].

11 Id. at 308, para. 73.

12 Id. at 310, para. 78.

13 Id. at 311, para. 79.

14 As the Court pointed out, the parties were agreed that its previous Yugoslavia-related judgments were not res judicata within the meaning of Article 59 of the Court’s Statute, although it conceded that “while those decisions are in no way binding on the Court, it will not depart from its settled jurisprudence unless it finds very particular reasons to do so.” Croatia case, supra note 1, para. 53.

15 Id., para. 54 (emphasis added).

16 Application for Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v. Yugoslavia), Preliminary Objections (Yugo. v. Bosn. & Herz.), 2003 ICJ Rep. 7 (Feb. 3) [hereinafter Revision case].

17 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Preliminary Objections, 1996 ICJ Rep. 595 (July 11) [hereinafter 1996 Bosnia judgment].

18 Revision case, supra note 16, 2003 ICJ Rep. at 31, paras. 70–71. Three judges voted against the dispositif of the judgment, which was supported by ten judges. See Blum, supra note 4, at 803–05.

19 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.) (Int’l Ct. Justice Feb. 26, 2007) [hereinafter 2007 Bosnia case].

20 See Blum, supra note 4, at 808–11.

21 See note 17 supra.

22 Croatia case, supra note 1, para. 77.

23 Id., para. 78.

24 Id., para. 79 (quoting the 1996 Bosnia judgment, supra note 17, to this effect; comparing Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. UK), Preliminary Objections, 1998 ICJ Rep. 9, 26, para. 44 (Feb. 27); and explaining, in para. 80, the reasons for its being “easy to see why this rule exists”).

25 Id., para. 81.

26 Id., para. 82 (quoting Mavrommatis Palestine Concessions (Greece v. UK), 1924 PCIJ (ser. A) No. 2, at 34 (Aug. 30)).

27 Id., para. 85. In this passage the Court affirms that the same criteria should be applied to applicants and respondents in the matter here under consideration. However, in his separate opinion Judge Ronny Abraham argues that full compliance with the jurisdictional requirements was incumbent only on the applicant and that, therefore, in this regard there was no absolute requirement for equality between the applicant and the respondent. Separate Opinion of Judge Abraham, paras. 8–44, id.

28 Croatia case, supra note 1, para. 88.

29 Id., para. 89. As pointed out in Blum, supra note 4, at 813, Serbia and Montenegro “left it to the Court to determine its own jurisdiction, in a further attempt to force the Court’s hand in advance of its judgment in the [2007 Bosnia] Genocide Convention case.”

30 Croatia case, supra note 1, para. 90.

31 Id.

32 Judges Ranjeva, Shi, and Koroma had sat on all five Yugoslavia-related cases since 1996. Judge Parra-Aranguren did not participate in the 2007 Bosnia judgment.

33 Joint Declaration of Judges Ranjeva, Shi, Koroma and Parra-Aranguren, para. 1, Croatia case, supra note 1 [hereinafter Joint Declaration].

34 Id.

35 See text at note 14 supra.

36 Joint Declaration, supra note 33, para. 5.

37 Id., paras. 6, 8; see also Dissenting Opinion of Judge Owada, paras. 8–14, 27, Croatia case, supra note 1.

38 Joint Declaration, supra note 33, para. 7.

39 Id, para. 8.

40 Id., para. 12. However, as already mentioned, see supra note 27, Judge Ronny Abraham, in his separate opinion, seems to favor such a distinction, suggesting that only the applicant must entirely fulfill the procedural requirements needed to establish the Court’s jurisdiction.

41 Joint Declaration, supra note 33, para. 12.

42 Id, para. 13.

43 In his dissenting opinion Judge Ranjeva also draws attention to Croatia’s letter to the UN secretary-general of February 16, 1994, in which Croatia rejected the claim of FRY-I to be the continuator state of the SFRY. Dissenting Opinion of Judge Ranjeva, para. 7, Croatia case, supra note 1 (quoting UN Doc. S/1994/198 (Feb. 19, 1994)).

44 Joint Declaration, supra note 33, para. 15.

45 Id., paras. 16, 18.

46 Dissenting Opinion of Judge Owada, supra note 37, paras. 8–27.

47 Id., para. 27; see also Dissenting Opinion of Judge Skotnikov, para. 1, Croatia case, supra note 1.

48 Dissenting Opinion of Judge Owada, supra note 37, para. 29.

49 Id., para 32.

50 Dissenting Opinion of Judge ad hoc Kreca, para. 15, Croatia case, supra note 1 (quoting Joint Declaration of Vice-President Ranjeva, Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby, NATO cases, supra note 10, 2004 ICJ Rep. at 330, para. 3) (citations omitted).

51 Dissenting Opinion of Judge Al-Khasawneh, 2007 Bosnia case, supra note 19, paras. 11–16.

52 Separate Opinion of Vice-President Al-Khasawneh at 1, Croatia case, supra note 1.

53 Id.

54 He did join six other judges, though, who in a joint declaration strongly dissociated themselves from the reasoning of the judgment, which they found inconsistent with the Court’s position in the Revision case. Joint Declaration of Vice-President Ranjeva, Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby, supra note 50, 2004 ICJ Rep. at 330.

55 See text at note 15 supra.

56 See note 27 supra.

57 3 Shabtai, Rosenne, The Law and Practice of the International Court, 1920–2005, at 1048–49 (4th ed. 2006)Google Scholar.

58 See text at note 50 supra.

59 2 Rosenne, supra note 57, at 804.