2002

ICJ

Application for revision of the Judgment of 11 July 1996 (Genocide Case) Preliminary objections Yugoslavia v. Bosnia and Herzegovina 3 February 2003

In early 1990s the SFRY, began to break up. 25 June 1991 Croatia and Slovenia declared independence 17 September 1991 Macedonia declared independence 6 March 1992 Bosnia and Herzegovina declared independence 22 September 1992, GA resolution 47/1 “considers that the FRY (Serbia and Montenegro) cannot continue automatically the membership to the former SFRY in the UN and therefore decides that the FRY should apply for membership in the UN and that it shall not participate in the work of the GA ” 20 March 1993, Bosnia and Herzegovina instituted proceedings against FRY alleging violation to Genocide Convention 21 November 1995, Dayton Agreement where FRY agreed to comply fully with the provision concerning human rights, including Genocide Convention 1 November 2000 FRY admitted to the UN Resolution 1. On 24 April 2001, The Federal Republic of Yugoslavia [FRY]… referring to Article 61 of the Statute of the Court, .. requested the Court to revise the Judgment delivered by it on 11 July 1996 [Genocide Case] 15 … the Statute and the Rules of Court foresee a “two-stage procedure”… the first stage of the procedure for a request for revision of the Court’s Judgment should be “limited to the question of admissibility of that request” 16. Therefore, at this stage the Court’s decision is limited to the question whether the request satisfies the conditions contemplated by the Statute… these conditions are as follows: a) the application should be based upon the “discovery” of a “fact”; b) the fact, the discovery of which is relied on, must be “of such a nature as to be a decisive factor”; c) the fact should have been “unknown” to the Court and to the party claiming revision when the judgment was given; d) ignorance of this fact must not be “due to negligence”; and e) the application for revision must be “made at latest within six months of the discovery of the new fact” and before ten years have elapsed from the date of the judgment.

17. .. The Court will begin by asserting whether there is here a “fact” which, although in existence at the date of its Judgment of 11 July 1996, was at that time unknown both to the FRY and to the Court. 18. FRY contended…. “The admission of the FRY to the United Nations as a new Member on 1 November 2000 is certainly a new fact…. this new fact is such a nature as to be a decisive factor regarding the question of jurisdiction ratione personae over the FRY… After the FRY was admitted as a new Member on 1 November 2000… it has became an unequivocal fact that the FRY did not continue the personality of the SFRY, was not a Member of the United Nations before 1 November 2000, was not a Sate party to the Statute, and was not a State party to the Genocide Convention 33. The Court recalls that between the adoption of GA Res 47/1 of 22 September 1992 and the admission of the FRY to the UN on 1 November 2000, the legal position of the FRY remained complex 67. The Court would begin by observing that, under the terms of Article 61, paragraph 1, of the Statute, an application for revision of a judgment may be made only when it is “based upon the discovery” of some fact which, “when the judgment was given”, was unknown. These are the characteristics which the “new” fact referred to in paragraph 2 of the Article must possess…. A fact which occurs several years after a judgment has been given is not a “new” fact within the meaning of Article 61. 68. In the present case, the admission of the FRY to the UN occurred on 1 November 2000, well after the 1996 Judgment. The Court concludes accordingly, that that admission cannot be regarded as a new fact within the meaning of Article 61 capable of founding a request for revision of that Judgment. In the final version of its argument, the FRY claims that its admission to the UN … simply “revealed” two facts which had existed in 1996 but had been unknown at the time: that it was not then a party to the Statute of the Court and that it was not bound by the Genocide Convention In advancing this argument, the FRY does not rely on facts that existed in 1996. In reality, it bases its Application for revision on the legal consequences which it seeks to draw from the facts subsequent to the Judgment which it is asking to have revised 70 Resolution 47/1 did not inter alia affect the FRY’s right to appear before the Court or to be a party to a dispute before the Court under the conditions laid down by the Statute…. To “terminate the situation created by resolution 47/1”, the FRY had to submit a request for admission to the UN as had been done by the other Republics composing the SFRY. All these elements were known to the Court and to the FRY at the time when the Judgment was given. Nevertheless, what remained unknown in July 1996 was if and when the FRY would apply for membership in the UN and if and when that application would be accepted, thus terminating the situation created by GA Res 47/1