Bosnia and Herzegovina V Serbia Montenegro
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Jessica PulgaBosnia and Herzegovina V Serbia Montenegro
Uploaded by
Jessica PulgaBosnia and Herzegovina v.
Serbia and Montenegro (Yugoslavia) - Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
FACTS
1. The Republic of Bosnia and Herzegovina instituted proceedings against the Federal
Republic of Yugoslavia (Serbia and Montenegro) in respect of a dispute concerning
alleged violations of the Convention on the Prevention and Punishment of the Crime of
Genocide which was adopted by the General Assembly of the United Nations on 9
December 1948. The Application invoked Article IX of the Genocide Convention as the
basis for the jurisdiction of the Court.
2. Yugoslavia, referring to Article 79, paragraph 1, of the Rules of Court, raised preliminary
objections concerning both the admissibility of the Application and the jurisdiction of the
Court to entertain the case.
3. The Court rejected the preliminary objections raised by Yugoslavia and found that it had
jurisdiction to deal with the dispute on the basis of Article IX of the Genocide Convention.
Among other things, it found that the Convention bound the two Parties and that there
was a legal dispute between them falling within the provisions of Article IX.
4. Yugoslavia submitted to the Court a document entitled “Initiative to the Court to
reconsider ex officio jurisdiction over Yugoslavia”, in which it first asserted that the Court
had no jurisdiction ratione personae over Serbia and Montenegro and secondly
requested the Court to “suspend proceedings regarding the merits of the case until a
decision on this Initiative”.
5. Yugoslavia contended that a revision of the Judgment was necessary, since it had now
become clear that, before 1 November 2000 (the date on which it was admitted as a new
Member of the United Nations), it did not continue the international legal and political
personality of the Socialist Federal Republic of Yugoslavia, was not a Member of the
United Nations, was not a State party to the Statute of the Court and was not a State
party to the Genocide Convention. Yugoslavia therefore requested the Court to adjudge
and declare that there was a new fact of such a character as to call for revision of the
1996 Judgment under Article 61 of the Statute.
ISSUE
Whether the ICJ court has jurisdiction over Yogoslavia since during the time that the he alleged
crime were committed Yoguslavias was still considered as the Socialist Federal Republic of
Yugoslavia was not a Member of the United Nations?
RULING
The Court affirmed that it had jurisdiction on the basis of Article IX of the Genocide Convention,
stating in particular that its 1996 Judgment, whereby it found it had jurisdiction under the
Genocide Convention, benefited from the “fundamental” principle of res judicata, which
guaranteed “the stability of legal relations”, and that it was in the interest of each Party “that an
issue which has already been adjudicated in favor of that party be not argued again”.
The court noted in particular that, under Article 61 of the Statute, an application for revision of a
judgment may be made only when it is “based upon the discovery” of a “new” fact which, “when
the judgment was given”, was unknown. Such a fact must have been in existence prior to the
judgment and have been discovered subsequently. Hence a fact which occurred several years
after a judgment had been given was not a “new” fact within the meaning of Article 61,
irrespective of the legal consequences that such a fact might have. Hence, the Court considered
that the admission of Yugoslavia to the United Nations on 1 November 2000, well after the 1996
Judgment, could not be regarded as a new fact capable of founding a request for revision of that
Judgment.
