Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina)
OVERVIEW OF THE CASE
On 24 April 2001, Yugoslavia filed an Application for a revision of the Judgment delivered by the Court on 11 July 1996 on the preliminary objections raised in the case instituted against it by Bosnia and Herzegovina. By that Judgment of 11 July 1996, the Court had declared that it had jurisdiction on the basis of Article IX of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, and had dismissed the additional bases of jurisdiction relied on by Bosnia and Herzegovina, finding that the Application filed by the latter was admissible. 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.
After the filing, by Bosnia and Herzegovina, of its written observations on the admissibility of the Application, public hearings were held from 4 to 7 November 2002. In its Judgment on the admissibility of the Application, delivered on 3 February 2003, 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. On the other hand, the Court continued, 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.
In the final version of its argument, Yugoslavia claimed that its admission to the United Nations and a letter of 8 December 2000 from the Organization’s Legal Counsel simply “revealed” two facts which had existed in 1996 but had been unknown at the time, namely, that it was not then a party to the Statute of the Court and that it was not bound by the Genocide Convention. On that point, the Court considered that, in so arguing, Yugoslavia was not relying on facts that existed in 1996 but “in reality, base[d] its Application for revision on the legal consequences which it [sought] to draw from facts subsequent to the Judgment which it [was] asking to have revised”. Those consequences, even supposing them to be established, could not be regarded as facts within the meaning of Article 61 and the Court therefore rejected that argument of Yugoslavia.
The Court indicated that at the time when the Judgment of 1996 was given, the situation obtaining was that created by General Assembly resolution 47/1. That resolution, adopted on 22 September 1992, stated inter alia :
“The General Assembly . . . considers that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations ; and therefore decides that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly.”
In its Judgment of 2003, the Court observed that
“the difficulties which arose regarding the FRY’s status between the adoption of that resolution and its admission to the United Nations on 1 November 2000 resulted from the fact that, although the FRY’s claim to continue the international legal personality of the former Yugoslavia was not ‘generally accepted’ . . . , the precise consequences of this situation were determined on a case-by-case basis (for example, non-participation in the work of the General Assembly and ECOSOC and in the meetings of States parties to the International Covenant on Civil and Political Rights, etc.)”.
The Court specified that resolution 47/1 did not affect Yugoslavia’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, nor did it affect the position of Yugoslavia in relation to the Genocide Convention. The Court further stated that resolution 55/12 of 1 November 2000 (by which the General Assembly decided to admit Yugoslavia to membership of the United Nations) could not have changed retroactively the sui generis position which that State found itself in vis-à-vis the United Nations over the period 1992 to 2000, or its position in relation to the Statute of the Court and the Genocide Convention. From the foregoing, the Court concluded that it had not been established that Yugoslavia’s Application was based upon the discovery of “some fact” which was “when the judgment was given, unknown to the Court and also to the party claiming revision” and accordingly found that one of the conditions for the admissibility of an application for revision laid down by Article 61, paragraph 1, of the Statute had not been satisfied.
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