The Relevant Time for Assessing Jurisdiction and the Ratione Temporis Objection in the Genocide (Croatia v. Serbia) Case

Abstract

AbstractThe mere passage of time does not in itself affect the jurisdiction of the International Court of Justice (ICJ) in pending cases. However, the ICJ sometimes regards—and sometimes disregards—events subsequent to its seisin when assessing jurisdiction and admissibility. Subsequent events may also shed light on past situations by indicating, ex post facto, that a particular legal assessment of the situation has prevailed. The Genocide (Croatia v. Serbia) case raised two essential temporal issues: the relevant moment in time for assessing the ICJ’s jurisdiction, and the temporal scope of that jurisdiction. The temporal conundrums involved stemmed from the triumph of the thesis of discontinuity, according to which the Federal Republic of Yugoslavia (FRY) had not continued the legal personality of the Socialist Federal Republic of Yugoslavia, as the FRY’s admission to the United Nations in 2000 revealed. Given that the FRY was not a UN member and, consequently, not a party to the ICJ Statute when Croatia instituted the proceedings in 1999, what was the relevant time for assessing whether the FRY had access to the ICJ? And could the ICJ examine conduct that occurred prior to the FRY’s proclamation without overstepping the temporal confines of its jurisdiction? Although the ICJ delivered two judgments in the case, jurisprudential contradictions remain with respect to the application of the Mavrommatis and Nottebohm principles, the retroactive or nonretroactive application of the Genocide Convention, and the existence or nonexistence of State succession to responsibility in international law.