Permissible derogation from mandatory rules? The problem of party status in the Genocide case

Abstract

In its Merits Judgment in the Genocide case, the International Court of Justice had to deal with the procedural question whether Yugoslavia (Serbia and Montenegro), at the time of the 1996 Preliminary Objections Judgment, had access to the Court. Given the unclear status of Yugoslavia within the United Nations between 1993 and 2000, this was highly doubtful. The Court avoided a definitive answer to that question by holding that it could not reopen the 1996 judgment which enjoyed the force of res judicata. The Court's overly broad application of the res judicata principle as well as its failure to examine ex officio Yugoslavia's status as a party in proceedings before the Court are not entirely convincing in legal terms. However, given the overall procedural and political circumstances prevailing in that case, the Court in 2007 had no other option than to reaffirm its jurisdiction and to proceed to deciding the merits of the case. © EJIL 2007; all rights reserved.