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450 SEPARATE OPINION OF JUDGE AD HOC KREĆA table of contents Paragraphs I. Legal Background 1-27 1. Constitutional concept of the Yugoslav State and of Croatia as a federal unit 2-17 2. Decisions of the Constitutional Court of the SFRY 18-27 II. Jurisdictional Issues 28-83 1. Validity in time complex in casu 28-45 1.1. From which date is the Genocide Convention in force as regards the Parties individually ? 29-33 1.2. From which date can the Genocide Convention be con- sidered as applicable between the Parties ? 34-35 1.3. Application of the principle in casu 36-43 1.4. By which date was the Genocide Convention in force as regards the SFRY ? 44-45 2. Nature and effects of the second preliminary objection of the Respondent 46-54 3. Treatment of preliminary objections to jurisdiction and admissibility in casu 55-59.1 4. Succession to responsibility as a purported rule of general international law 60-65.4 5. Rule in Article 10 (2) of the Articles on the Responsibility of States for Internationally Wrongful Acts as a purported rule of general international law 66-67 6. Applicable substantive law in casu in the light of rules on interpretation of treaties 68-79 7. The issue of the indispensable third party 80-83 III. Substantive Law Issues 84-138 1. Relationship between the ICJ and the ICTY in respect of the adjudication of genocide 84-106 1.1. The need for a balanced and critical approach to the jurisprudence of the ICTY 87 1.1.1. Factual findings of the ICTY 88-89 1.1.2. Legal findings of the ICTY 90-99 1.2. Compromising effects on the Court’s jurisprudence on genocide 100-106 451 7 CIJ1077.indb 898 18/04/16 08:54 451 application of genocide convention (sep. op. kreća) 2. Was genocide committed in Croatia ? 107-114 3. Issue of incitement to genocide 115 3.1. Issue of incitement to genocide as inchoate crime 116 3.2. Incitement in terms of Article III (c) of the Convention 116-119 3.3. Ustasha ideology as a genocidal one 120-124 3.4. The establishment of the NDH — the Ustasha ideo- logy becomes State policy 125-128 3.5. President Tudjman’s Croatia and the legacy of the NDH 129-133 3.6. State symbols and other acts 134-138 3.7. Statements of Croatia’s officials in the light of the juris- prudence of the ICTR regarding incitement * Having great respect for the Court, it is for me a matter of regret to find necessary to avail myself of the right to express a separate opinion based on the considerations that follow. I. Legal Background 1. The background part of the Judgment in the case at hand comprises two parts : “A. The break-up of the Socialist Federal Republic of Yugoslavia and emergence of new States” ; and “B. The situation in Croatia”. It consists almost entirely of a statement of facts of a historical and political nature, neglecting at the same time the relevant legal facts which, in my opinion, not only should constitute a part of the “background”, but without which the causes of the Yugoslav crisis and the civil war in Croatia can hardly be understood. The only relevant legal fact stated in the “background” part of the Judgment is the assertion of the Respondent that the “Croatian Serbs considered that the adoption of this new Consti- tution [of Croatia on 22 December 1990] deprived them of certain basic rights and removed their status as a constituent nation of Croatia” (Judg- ment, para. 64). The relevant legal facts, together with other facts, can only be helpful in the creation of a full picture of the background of the case. 1. Constitutional Concept of the Yugoslav State and of Croatia as a Federal Unit 2. The legal facts relate to the domestic law of the Socialist Federal Republic of Yugoslavia (SFRY) and that of the Socialist Republic of Croatia in force during the relevant period. 452 7 CIJ1077.indb 900 18/04/16 08:54 452 application of genocide convention (sep. op. kreća) In a case like the one at hand, domestic law is highly relevant. 3. The original international legal norm of self-determination of peo- ples is both incomplete and imperfect, at least when it concerns subjects entitled to self-determination in multi-ethnic States and their exercise of external self-determination infringing upon the territorial integrity of a State. Given its incompleteness, the original norm of self-determination of peoples is rendered inapplicable in its respective parts to certain practi- cal situations and constitutes a sort of decorative, empty normative struc- ture. Interested entities often refer to it, but it can function only outside the legal domain, as a convenient cover for an eminently political strategy, based on opportuneness and the balance of power. This implies a need to see the norm of the right to external self-deter- mination in States composed of more than one people as a complex norm consisting of two parts : on the one hand, original international legal norms of the right of peoples to external self-determination, and, on the other, relevant parts of the internal law of the given State. In this context, the original international legal norm of the right of peoples has the role of a general, permissive norm, which assumes an operative character, the property of a norm which may become effective in the event that the internal law of a multi-ethnic State has stipulated the right to external self-determination if it defines the entitlement to it, as well as the procedure for its exercise. In other words, the relevant provisions of internal law are ad casum an integral part of the norm of the right of peoples to external self-determination. Only in this way does the origi- nal international legal norm of the right to external self-determination become applicable at the level of the fundamental premise of the rule of law. The necessity for such a relationship between international and internal laws is rightfully suggested by the following : “If the rule of law is to be made effective in world affairs it must cover a wide range of increasingly complex transactions which are governed partly by international and partly by municipal law . It is therefore important that international courts and tribunals should be in a position, when adjudicating upon complex international trans- actions, to apply simultaneously the relevant principles and rules of international law and the provisions of any system of municipal law which may be applicable to the particular transaction . One of the essential functions of international law and international organization is to promote the rule of law within as well as among nations, for only on the basis of the rule of law within nations can the rule of law among nations develop and be made secure. International courts and tribu- nals can contribute to this result more effectively if the extent to which the interpretation and application of municipal law in the course of their work is a normal and necessary incident of international adjudication on complex transactions is more fully understood.” 453 7 CIJ1077.indb 902 18/04/16 08:54 453 application of genocide convention (sep. op. kreća) (C. Wilfred Jenks, The Prospects of International Adjudication, 1964, p. 547.) 4. Thus, in the present case, this is not a matter of a conflict between a norm of international law and a norm of internal law, a type of case adju- dicated by several international courts (Greco‑Bulgarian “Communities”, Advisory Opinion, 1930, P.C.I.J., Series B, No. 17, p. 32 ; Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, P.C.I.J., Series A, No. 22, p. 167 ; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932, P.C.I.J., Series A/B, No. 44, p. 24), but rather of the application of an international norm of a complex structure, namely a norm that incorpo- rates relevant norms of internal law relating to external self-determina- tion. I am of the view that, in this case, the reasoning of the Court in the case concerning Brazilian Loans (1929) is relevant. In that case, the Court pointed out, inter alia, that : “Once the Court has arrived at the conclusion that it is necessary to apply the municipal law of a particular country, there seems no doubt that it must seek to apply it as it would be applied in that country. It would not be applying the municipal law of a country if it were to apply it in a manner different from that in which that law would be applied in the country in which it is in force. It follows that the Court must pay the utmost regard to the deci- sions of the municipal courts of a country, for it is with the aid of their jurisprudence that it will be enabled to decide what are the rules which, in actual fact, are applied in the country the law of which is recognized as applicable in a given case. If the Court were obliged to disregard the decisions of municipal courts, the result would be that it might in certain circumstance apply rules other than those actually applied ; this would seem to be contrary to the whole theory on which the application of municipal law is based. Of course, the Court will endeavour to make a just appreciation of the jurisprudence of municipal courts.
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