BHY CR 2006/18 (translation) CR 2006/18 (traduction) Tuesday 14 March 2006 at 10 a.m. Mardi 14 mars 2006 à 10 heures - 2 - 1 The PRESIDENT: Please be seated. Maître de Roux, you have the floor. Mr. de ROUX: Thank you. GENOCIDE Introduction 1. Madam President, Members of the Court, it is a great honour for me to appear before you as counsel for Serbia and Montenegro. But the honour of asking you to render justice is also a heavy responsibility, as you are required to adjudicate upon a tragedy caused by the disintegration of a European State: the State of Yugoslavia, whose frontiers were internationally recognized. You are to adjudicate upon the disintegration of a great European State, that of the southern Slavs, a State created by the Versailles Treaty precisely for the purpose of preserving the stability of the Balkans. However, the geopolitical collapse of Yugoslavia was not the result of an ethnic conflict, since what we have here is the same population speaking the same language, even if there is a long history of relations between the Croats of the Empire and the Bosnians of the Ottoman Porte, as they were called at the time. It is true that nationalism and nationalities have always been at work in the Balkans, whose history, as Professor Stojanovic pointed out, has frequently been marked by fury and chaos, but is it possible to speak of genocide in connection with this most recent conflict which followed the dark years of the 1940s? Can it seriously be claimed that Belgrade devised, planned and decided on the extermination of the Croats and the Bosnians? Can it at the same time be claimed that the Croats and the Bosnians had decided to exterminate the Serbs, on the grounds that there are no longer any Serbs living in Croatian Krajina or even in Zagreb, and that the Serb districts of Sarajevo were emptied of their inhabitants? This historical issue is also a legal issue, since genocide is the crime of crimes. But is it possible today to burden the history of the Balkans with this ghastly crime ⎯ which, fortunately, was not committed ⎯ at the very time when tensions in the region are to be defused, at the very time when your Court’s mission is to contribute to peace and vengeance is to be excised from the memory of peoples? - 3 - 2. I wish to emphasize that the respondent State, Serbia and Montenegro, categorically condemns acts of genocide, and is one with the entire international community in considering that the crime of genocide is the most serious of crimes against humanity. 21 3. In the present case, this Court, in its Judgment on Preliminary Objections of 11 July 1996, without dealing with the question of the interpretation of the Genocide Convention, held that its only jurisdiction to entertain the case is on the basis of Article IX of the Convention (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), para. 41). We shall therefore analyse the facts alleged by the Applicant, in order to demonstrate that they do not in any way fall within the scope of this Convention. 4. In our analysis of the alleged acts of genocide, we shall put forward the following arguments: first: genocide is an ambiguous term used with different meanings in both the legal and the political sphere: unfortunately, this term is trivialized in every conflict by declarations of a political nature; second: in law, and under the terms of the Genocide Convention, only the acts enumerated in Article II of the Convention can constitute genocide; third: since the commission of genocide can take one of the forms mentioned in Article III of the Convention, the Applicant should have stated expressly which form or forms it was referring to; fourth: the Applicant should have specifically indicated the group alleged to have been subjected to genocide; and last: since genocide can be perpetrated only by natural persons motivated by a specific intent to destroy a national, ethnical, racial or religious group in whole or in part, that specific intent must be established by the Applicant, and the natural persons alleged to have committed the crime must be identified. 5. We are faced with a series of heinous, revolting and cruel acts recounted by the Applicant throughout its written pleadings and reiterated in its oral pleadings. These acts, all these acts, are - 4 - certainly criminal and we can only agree with the finding made by this honourable Court on 13 September 1993, when it held that: “great suffering and loss of life has been sustained by the population of Bosnia-Herzegovina in circumstances which shock the conscience of mankind and 32 flagrantly conflict with moral law and the spirit and aims of the United Nations” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 348, para. 52). 6. However, the fact that the population suffered through an extremely cruel war with substantial loss of human life is not sufficient to constitute genocide. The criminal acts which generated losses and suffering were no doubt committed on the territory of Bosnia and Herzegovina, as no one can deny. However, these acts, which unfortunately are inextricably bound up with the war, do not constitute genocide because, no matter how unconscionable and criminal they may be, they do not meet the material and moral requirements for them to be characterized as the international crime of genocide. 7. Madam President, Members of the Court, as you know, the crime of genocide was defined by reference to the destruction or attempted destruction of the Jewish people by the Nazi régime. Although this has already been mentioned by Professor Stojanovic, I should like to recall that six million Jews perished in the Second World War, that is to say an estimated 67 per cent of the Jewish population of Europe. It is sufficient to refer to the size of the Bosnian Muslim population to observe that, fortunately, such figures were never even remotely achieved. The events that took place in Bosnia and Herzegovina at the end of the twentieth century, 50 years after the Nazi madness, certainly have distant roots in the Second World War, but we shall demonstrate without difficulty that, despite the extreme horror of the war, no genocide was committed. 8. The Judgment rendered by the Nuremberg International Military Tribunal on 30 September and 1 October 1946 was the first judgment for the purpose of punishing acts perpetrated with the intention of destroying certain human groups. That judgment punished the crimes committed during the Second World War which I have just mentioned. The existence of the crime of genocide under international law was confirmed by the United Nations General Assembly. Resolution 260 (III) A of 9 December 1948 on the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide (more commonly known as the “Genocide Convention”) - 5 - established this crime in international law. The Convention entered into force on 12 January 1951 and has become one of the essential instruments for the protection of human rights throughout the world. 13 9. Your honourable Court has already held, in the case concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, that the principles underlying the Convention “are recognized by civilized nations as binding on States, even without any conventional obligation”. According to this Court, the Genocide Convention is intended to be a convention of universal scope; it has a “purely humanitarian and civilizing purpose”, and the “contracting States” have neither “individual advantages or disadvantages”, nor “any interests of their own”, but a “common interest” (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951). The same reasoning was used in this case in the Court’s 1996 Judgment (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), paras. 22 and 31). 10. Today, the universal scope of the Genocide Convention is no longer in any doubt or subject to any discussion. Numerous legal instruments have explicitly recognized this general obligation on States. 11. At the time of the establishment of the International Criminal Tribunal for the former Yugoslavia, the Secretary-General wrote in his report of 3 May 1993, drawn up pursuant to paragraph 2 of Security Council resolution 808 (1993), that the Genocide Convention is part of international humanitarian law which has become part of international customary law1. And he went on to explain: “The 1948 Convention on the Prevention and Punishment of the Crime of Genocide confirms that genocide, whether committed in time of peace or in time of war, is a crime under international law for which individuals shall be tried and punished. The Convention is today considered part of international customary law as evidenced by the International Court of Justice in its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of 2 Genocide, 1951.” 1Report of the Secretary-General of 3 May 1993, United Nations doc. S/25704, para. 35. 2Id., para. 45. - 6 - 12. Moreover, the international tribunals set up by the United Nations in recent years have all proclaimed genocide the crime of crimes3. The International Criminal Tribunal for Rwanda also 44 noted that the crime of genocide is considered an integral part of international customary law and, moreover, a norm of jus cogens4.