Court said: counter-claim has a dual character in relation to the claim. It is independent of the principal claim in so far as it constitutes a separate ‘claim’, it is an autonomous legal act the object of which is to submit a new claim to the court, and at the same time, it is linked to the principal claim, in so far as formulated as a ‘counter’ claim, the thrust of a counter claim is thus to widen the original subject-matter of the dispute. Counter claims are more to mere defences on the merits. However a claim should normally be made by means of an application, it is permitted for certain types of claims to be set out as incidental proceedings, within the context of a case which is already in progress, merely in order to ensure better administration of justice. The idea of Counter claims is to achieve procedural economy whilst enabling the Court to have an overview of the respective claims of the parties and to decide them more consistently. (However) the respondent cannot use a counter claim to refer a dispute which exceeds the limits of its jurisdiction as recognised by the parties, or impose on the applicant any claim it chooses, at risk of infringement the applicant rights and of compromising the proper administration of justice, for this reasons it is necessary that the counter claim ‘comes within jurisdiction ICJ’ + ‘directly connected w/subject matter of claim’
It is for the court in its sole discretion to asses whether the counter claim is sufficiently connected to the principal claim, as a general rule the degree of connection between the claims must be assessed both in fact and law.
In the present case the respective claims rest on facts of the same nature, same factual complex occurred in B&H in same period. Absent of reciprocity (well pointed by B&H) is not determinative whether there is a connection or not, the two parties pursue the same legal aim, establishment of regal responsibility by genocide
The counter claims submitted by Yugoslavia are directly connected with the subject matter of B&H’s claims
Lauterpacht (separate opinion): I am concerned that ICJ has not given the parties the opportunity to develop their respective positions in oral argument. Bosnia supports a ‘restrictive’ interpretation of ‘direct connection’: identity of victims and material perpetrators, the factual analysis of counterclaim must have a relationship to the factual analysis of the claim. Yugoslavia has a ‘broad’ one: it is sufficient that the counter claim raised genocide of Serbs as an element relevant to contradict the facts presented by Bosnia. The choice between the approaches depends on the concept of genocide: accumulation of crimes which collectively evidence a pattern amounting to genocide, so the Yugoslav approach is OK
Weeramantry (dissenting opinion): three prerequisites to present a counter claim: 1. must fall within a counter-claim 2. directly connected with subject matter 3. come within jurisdiction. This elements are necessary to present it, but joinder is not automatic,
4. (requisite to do so) discretion of the court.
In a counter claim, there must be some point of intersection between the claims, which makes one exert an influence upon the judicial consequence of the other.
Counter claim is a civil concept, the concept of crime being set off or used, as a counter claim to another crime is totally alien to modern jurisprudence. Genocide cannot set off genocide.
The counter claim is presented more than 4 years after the application, when the case is ripe for hearing, this is going to delay the proceedings, and it can open the door to parties that seek to delay proceedings presenting cases against applicants in form of counterclaims. This situation is different of the 47 ICJ rules, two cases joined because of similar background, circumstances.
On the other hand counterclaim involves conduct of a 3rd state, Croatia