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The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 35, 36, 41 and 48 of the Statute of the Court, and
to Articles 73, 74 and 75 of the Rules of Court,
Having regard to the Application by the Republic of Bosnia and Herzegovina
(hereinafter called "Bosnia-Herzegovina") filed in the Registry of the Court
on 20 March 1993, instituting proceedings against the Federal Republic of
Yugoslavia (Serbia and Montenegro) (hereinafter called [p 4] "Yugoslavia")
in respect of a dispute concerning alleged violations by Yugoslavia of the
Convention on the Prevention and Punishment of the Crime of Genocide,
adopted by the General Assembly of the United Nations on 9 December 1948
(hereinafter called "the Genocide Convention"), as well as matters which
Bosnia-Herzegovina maintains to be connected therewith,
Makes the following Order:
1. Whereas in the above-mentioned Application Bosnia-Herzegovina, basing the
jurisdiction of the Court on Article IX of the Genocide Convention, recounts
a series of events in Bosnia-Herzegovina from April 1992 up to the present
day which, in its contention, amount to acts of genocide within the
definition given in the Genocide Convention, specifically
(i) killing members of a group, namely Muslim inhabitants of
Bosnia-Herzegovina;
(ii) causing serious bodily or mental harm to members of that group;
(iii) deliberately inflicting on that group conditions of life calculated to
bring about its physical destruction in whole or in part; and
(iv) imposing measures intended to prevent births within that group;
and whereas Bosnia-Herzegovina claims that the acts complained of have been
committed by former members of the Yugoslav People's Army (YPA) and by Serb
military and paramilitary forces under the direction of, at the behest of,
and with assistance from Yugoslavia; and whereas Bosnia-Herzegovina claims
that Yugoslavia is therefore fully responsible under international law for
their activities;
2. Whereas on the basis of the facts alleged in the Application
Bosnia-Herzegovina requests the Court to adjudge and declare as follows:
"(a) that Yugoslavia (Serbia and Montenegro) has breached, and is continuing
to breach, its legal obligations toward the People and State of Bosnia and
Herzegovina under Articles I, II (a), II (b), II (c), II (d), III (a), III
(b), III (c), III (d), III (e), IV, and V of the Genocide Convention;
(b) that Yugoslavia (Serbia and Montenegro) has violated and is continuing
to violate its legal obligations toward the People and State of Bosnia and
Herzegovina under the four Geneva Conventions of 1949, their Additional
Protocol I of 1977, the customary international laws of war including the
Hague Regulations on Land Warfare of 1907, and other fundamental principles
of international humanitarian law;
(c) that Yugoslavia (Serbia and Montenegro) has violated and continues to
violate Articles 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18,
19, 20, 21, 22, 23, 25, 26 and 28 of the Universal [p 5] Declaration of
Human Rights with respect to the citizens of Bosnia and Herzegovina;
(d) that Yugoslavia (Serbia and Montenegro), in breach of its obligations
under general and customary international law, has killed, murdered,
wounded, raped, robbed, tortured, kidnapped, illegally detained, and
exterminated the citizens of Bosnia and Herzegovina, and is continuing to do
so;
(e) that in its treatment of the citizens of Bosnia and Herzegovina,
Yugoslavia (Serbia and Montenegro) has violated, and is continuing to
violate, its solemn obligations under Articles 1 (3), 55 and 56 of the
United Nations Charter;
(f) that Yugoslavia (Serbia and Montenegro) has used and is continuing to
use force and the threat of force against Bosnia and Herzegovina in
violation of Articles 2 (1), 2 (2), 2 (3), 2 (4), and 33 (1), of the United
Nations Charter;
(g) that Yugoslavia (Serbia and Montenegro), in breach of its obligations
under general and customary international law, has used and is using force
and the threat of force against Bosnia and Herzegovina;
(h) that Yugoslavia (Serbia and Montenegro), in breach of its obligations
under general and customary international law, has violated and is violating
the sovereignty of Bosnia and Herzegovina by:
- armed attacks against Bosnia and Herzegovina by air and land;
- aerial trespass into Bosnian airspace;
- efforts by direct and indirect means to coerce and intimidate the
Government of Bosnia and Herzegovina;
(i) that Yugoslavia (Serbia and Montenegro), in breach of its obligations
under general and customary international law, has intervened and is
intervening in the internal affairs of Bosnia and Herzegovina;
(j) that Yugoslavia (Serbia and Montenegro), in recruiting, training,
arming, equipping, financing, supplying and otherwise encouraging,
supporting, aiding, and directing military and paramilitary actions in and
against Bosnia and Herzegovina by means of its agents and surrogates, has
violated and is violating its express charter and treaty obligations to
Bosnia and Herzegovina and, in particular, its charter and treaty
obligations under Article 2 (4) of the United Nations Charter, as well as
its obligations under general and customary international law;
(k) that under the circumstances set forth above, Bosnia and
Her-[p6]zegovina has the sovereign right to defend Itself and its People
under United Nations Charter Article 51 and customary international law,
including by means of immediately obtaining military weapons, equipment,
supplies and troops from other States;
(l) that under the circumstances set forth above, Bosnia and Herzegovina has
the sovereign right under United Nations Charter Article 51 and customary
international law to request the immediate assistance of any State to come
to its defence, including by military means (weapons, equipment supplies,
troops, etc.);
(m) that Security Council resolution 713 (1991), imposing a weapons embargo
upon the former Yugoslavia, must be construed in a manner that shall not
impair the inherent right of individual or collective self-defence of Bosnia
and Herzegovina under the terms of United Nations Charter Article 51 and the
rules of customary international law;
(n) that all subsequent Security Council resolutions that refer to or
reaffirm resolution 713 (1991) must be construed in a manner that shall not
impair the inherent right of individual or collective self-defence of Bosnia
and Herzegovina under the terms of United Nations Charter Article 51 and the
rules of customary international law;
(o) that Security Council resolution 713 (1991) and all subsequent Security
Council resolutions referring thereto or reaffirming thereof must not be
construed to impose an arms embargo upon Bosnia and Herzegovina, as required
by Articles 24 (1) and 51 of the United Nations Charter and in accordance
with the customary doctrine of ultra vires;
(p) that pursuant to the right of collective self-defence recognized by
United Nations Charter Article 51, all other States parties to the Charter
have the right to come to the immediate defence of Bosnia and Herzegovina -
at its request - including by means of immediately providing it with
weapons, military equipment and supplies, and armed forces (soldiers,
sailors, airpeople, etc.);
(q) that Yugoslavia (Serbia and Montenegro) and its agents and surrogates
are under an obligation to cease and desist immediately from its breaches of
the foregoing legal obligations, and is under a particular duty to cease and
desist immediately:
- from its systematic practice of so-called 'ethnic cleansing' of the
citizens and sovereign territory of Bosnia and Herzegovina; [p 7]
- from the murder, summary execution, torture, rape, kidnapping, mayhem,
wounding, physical and mental abuse, and detention of the citizens of Bosnia
and Herzegovina;
- from the wanton devastation of villages, towns, districts, cities, and
religious institutions in Bosnia and Herzegovina;
- from the bombardment of civilian population centres in Bosnia and
Herzegovina, and especially its capital, Sarajevo;
- from continuing the siege of any civilian population centres in Bosnia and
Herzegovina, and especially its capital, Sarajevo;
- from the starvation of the civilian population in Bosnia and Herzegovina;
- from the interruption of, interference with, or harassment of humanitarian
relief supplies to the citizens of Bosnia and Herzegovina by the
international community;
- from all use of force - whether direct or indirect, overt or covert -
against Bosnia and Herzegovina, and from all threats of force against Bosnia
and Herzegovina;
- from all violations of the sovereignty, territorial integrity or political
independence of Bosnia and Herzegovina, including all intervention, direct
or indirect, in the internal affairs of Bosnia and Herzegovina;
- from all support of any kind - including the provision of training, arms,
ammunition, finances, supplies, assistance, direction or any other form of
support - to any nation, group, organization, movement or individual engaged
or planning to engage in military or paramilitary actions in or against
Bosnia and Herzegovina;
(r) that Yugoslavia (Serbia and Montenegro) has an obligation to pay Bosnia
and Herzegovina, in its own right and as parens patriae for its citizens,
reparations for damages to persons and property as well as to the Bosnian
economy and environment caused by the foregoing violations of international
law in a sum to be determined by the Court. Bosnia and Herzegovina reserves
the right to introduce to the Court a precise evaluation of the damages
caused by Yugoslavia (Serbia and Montenegro)";
3. Whereas by a request filed in the Registry on 20 March 1993 immediately
after the filing of the Application, Bosnia-Herzegovina, invoking Article 41
of the Statute of the Court and Articles 73, 74, 75 and 78 of the [p 8]
Rules of Court, and relying on the facts set forth in the Application,
urgently requested that the Court indicate the following provisional
measures to be in effect while the Court is seised of this case:
"1. That Yugoslavia (Serbia and Montenegro), together with its agents and
surrogates in Bosnia and elsewhere, must immediately cease and desist from
all acts of genocide and genocidal acts against the People and State of
Bosnia and Herzegovina, including but not limited to murder; summary
executions; torture; rape; mayhem; so-called 'ethnic cleansing'; the wanton
devastation of villages, towns, districts and cities; the siege of villages,
towns, districts and cities; the starvation of the civilian population; the
interruption of, interference with, or harassment of humanitarian relief
supplies to the civilian population by the international community; the
bombardment of civilian population centres; and the detention of civilians
in concentration camps or otherwise.
2. That Yugoslavia (Serbia and Montenegro) must immediately cease and desist
from providing, directly or indirectly, any type of support - including
training, weapons, arms, ammunition, supplies, assistance, finances,
direction or any other form of support - to any nation, group, organization,
movement, militia or individual engaged in or planning to engage in military
or paramilitary activities in or against the People, State and Government of
Bosnia and Herzegovina.
3. That Yugoslavia (Serbia and Montenegro) itself must immediately cease and
desist from any and all types of military or paramilitary activities by its
own officials, agents, surrogates, or forces in or against the People, State
and Government of Bosnia and Herzegovina, and from any other use or threat
of force in its relations with Bosnia and Herzegovina.
4. That under the current circumstances, the Government of Bosnia and
Herzegovina has the right to seek and receive support from other States in
order to defend Itself and its People, including by means of immediately
obtaining military weapons, equipment, and supplies.
5. That under the current circumstances, the Government of Bosnia and
Herzegovina has the right to request the immediate assistance of any State
to come to its defence, including by means of immediately providing weapons,
military equipment and supplies, and armed forces (soldiers, sailors,
airpeople, etc.).
6. That under the current circumstances, any State has the right to come to
the immediate defence of Bosnia and Herzegovina - at its request - including
by means of immediately providing weapons, military equipment and supplies,
and armed forces (soldiers, sailors, and airpeople, etc.)"; [p 9]
4. Whereas on 20 March 1993, the day on which the Application and the
request for the indication of provisional measures were received in the
Registry, the Registrar notified the Government of Yugoslavia of the filing
of the Application and the request, and communicated the text thereof to it,
by telefax, and sent certified copies of the Application and the request to
it by express registered post on 22 March 1993, in accordance with Article
40, paragraph 2, of the Statute and Articles 38, paragraph 4, and 73,
paragraph 2, of the Rules of Court;
5. Whereas, pending the notification under Article 40, paragraph 3, of the
Statute and Article 42 of the Rules of Court, by transmittal of the printed
bilingual text of the Application to the Members of the United Nations and
other States entitled to appear before the Court, the Registrar on 25 March
1993 informed those States of the filing of the Application and of its
subject-matter, and of the request for the indication of provisional
measures;
6. Whereas on 25 March 1993, the Registrar, in accordance with Article 43 of
the Rules of Court, addressed the notification provided for in Article 63,
paragraph 1, of the Statute to the States, other than the Parties to the
dispute, which on the basis of information supplied by the Secretary-General
of the United Nations as depositary (ST/LEG/SER.E/10 and supplements to
date) appeared to be parties to the Genocide Convention, and in addition
addressed to the Secretary-General of the United Nations the notification
provided for in Article 34, paragraph 3, of the Statute of the Court;
7. Whereas on 25 March 1993 the Registrar informed the Parties that the
Court would hold public sittings on 1 and 2 April 1993 to hear the
observations of the Parties on the request for the indication of provisional
measures; whereas on 29 March 1993 Yugoslavia requested the postponement of
those sittings to a date in early May 1993, but the Court decided on 30
March 1993 that, in view of the urgency attaching under Article 74 of the
Rules of Court to a request for provisional measures, it was unable to
accede to that request;
8. Whereas on 31 March 1993, the Agent of Bosnia-Herzegovina filed in the
Registry of the Court a document dated 8 June 1992 which in the contention
of Bosnia-Herzegovina constituted a basis for the jurisdiction of the Court
additional to that specified in the Application;
9. Whereas in written observations, submitted to the Court on 1 April 1993,
on the request for the indication of provisional measures, the Government of
Yugoslavia
"recommends that the Court, pursuant to Article 41 of its Statute and
Article 73 of its Rules of Procedure, order the application of provisional
measures, in particular:
- to instruct the authorities controlled by A. Izetbegovic to comply
strictly with the latest agreement on a cease-fire in the 'Republic of
Bosnia and Herzegovina' which went into force on 28 March 1993; [p 10]
- to direct the authorities under the control of A. Izetbegovic to respect
the Geneva Conventions for the Protection of Victims of War of 1949 and the
1977 Additional Protocols thereof, since the genocide of Serbs living in the
'Republic of Bosnia and Herzegovina' is being carried out by the commission
of very serious war crimes which are in violation of the obligation not to
infringe upon the essential human rights;
- to instruct the authorities loyal to A. Izetbegovic to close immediately
and disband all prisons and detention camps in the 'Republic of Bosnia and
Herzegovina' in which the Serbs are being detained because of their ethnic
origin and subjected to acts of torture, thus presenting a real danger for
their life and health;
- to direct the authorities controlled by A. Izetbegovic to allow, without
delay, the Serb residents to leave safely Tuzla, Zenica, Sarajevo and other
places in the 'Republic of Bosnia and Herzegovina', where they have been
subject to harassment and physical and mental abuse, and having in mind that
they may suffer the same fate as the Serbs in eastern Bosnia, which was the
site of the killing and massacres of a few thousand Serb civilians;
- to instruct the authorities loyal to A. Izetbegovic to cease immediately
any further destruction of Orthodox churches and places of worship and of
other Serb cultural heritage, and to release and stop further mistreatment
of all Orthodox priests being in prison;
- to direct the authorities under the control of A. Izetbegovic to put an
end to all acts of discrimination based on nationality or religion and the
practice of 'ethnic cleansing', including the discrimination relating to the
delivery of humanitarian aid, against the Serb population in the 'Republic
of Bosnia and Herzegovina'";
10. Having heard the oral observations on the request for provisional
measures presented at public hearings held on 1 and 2 April 1993 by the
following representatives:
on behalf of Bosnia-Herzegovina:
H.E. Mr. Muhamed Sacirbey and
Mr. Francis A. Boyle, Agents;
on behalf of Yugoslavia:
Mr. Ljubinko Zivkovic and
Mr. Shabtai Rosenne, Acting Agents;[p 11]
and having received the replies of the Parties to a question put by a Member
of the Court at the hearings;
11. Having regard to the "Supplementary Submission" on the facts alleged in
support of the Application and the request transmitted to the Court on 1
April 1993 by facsimile by the Agent of Bosnia-Herzegovina;
**
12. Whereas in the written observations referred to in paragraph 9 above,
Yugoslavia made what it termed "a preliminary objection with regard to the
legitimacy of the Applicant", claiming that neither the President of the
Republic of Bosnia and Herzegovina, Mr. A. Izetbegovic, who appointed the
Agents of that State and authorized the institution of the present
proceedings, nor the Government of the Republic of Bosnia and Herzegovina,
are legally elected; whereas Yugoslavia claims that the legitimacy and
mandate of the Government and the President of the Republic of Bosnia and
Herzegovina are disputed not only by representatives of the Serb people but
also by representatives of the Croat people, and furthermore that the
mandate of Mr. Izetbegovic expired on 20 December 1992, and was challenged
on this ground by the Prime Minister of Bosnia-Herzegovina in a letter to
the Chairman of the European Affairs Subcommittee of the United States
Senate Foreign Relations Committee dated 24 February 1993, circulated, at
the request of the Prime Minister of Bosnia-Herzegovina, by the
Secretary-General of the United Nations as a document of the General
Assembly and of the Security Council;
13. Whereas the Agent of Bosnia-Herzegovina stated that President
Izetbegovic is recognized by the United Nations as the legitimate Head of
State of the Republic of Bosnia and Herzegovina; whereas the Court has been
seised of the case on the authority of a Head of State, treated as such in
the United Nations; whereas the power of a Head of State to act on behalf of
the State in its international relations is universally recognized, and
reflected in, for example, Article 7, paragraph 2 (a), of the Vienna
Convention on the Law of Treaties; whereas accordingly the Court may, for
the purposes of the present proceedings on a request for provisional
measures, accept the seisin as the act of that State;
*
14. Whereas on a request for provisional measures the Court need not, before
deciding whether or not to indicate them, finally satisfy itself that it has
jurisdiction on the merits of the case, yet it ought not to indicate such
measures unless the provisions invoked by the Applicant or found in the [p
12] Statute appear, prima facie, to afford a basis on which the jurisdiction
of the Court might be established; whereas this consideration embraces
jurisdiction both ratione personae and ratione materiae, even though,
inasmuch as almost all States are today parties to the Statute of the Court,
it is in general only the latter which requires to be considered;
15. Whereas Article 35, paragraph 1, of the Statute of the Court provides
that "The Court shall be open to the States parties to the present Statute",
and Article 93, paragraph 1, of the United Nations Charter that "All Members
of the United Nations are ipso facto parties to the Statute of the
International Court of Justice"; and whereas it is maintained in the
Application that "As Members of the United Nations Organization, the
Republic of Bosnia and Herzegovina and Yugoslavia (Serbia and Montenegro)
are parties to the Statute"; whereas however in the Application
Bosnia-Herzegovina indicates that the "continuity" of Yugoslavia with the
former Socialist Federal Republic of Yugoslavia, a Member of the United
Nations, "has been vigorously contested by the entire international
community, and [sic] including by the United Nations Security Council ... as
well as by the General Assembly", and reference is there made to (inter
alia) Security Council resolution 777 (1992) and General Assembly resolution
47/1;
16. Whereas Security Council resolution 777 (1992) of 19 September 1992
reads, so far as pertinent:
"The Security Council,
........................................................
Considering that the State formerly known as the Socialist Federal Republic
of Yugoslavia has ceased to exist,
Recalling in particular resolution 757 (1992) which notes that 'the claim by
the Federal Republic of Yugoslavia (Serbia and Montenegro) to continue
automatically the membership of the former Socialist Federal Republic of
Yugoslavia in the United Nations has not been generally accepted',
1. 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 recommends to
the General Assembly that it decide 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;..."
and whereas on 22 September 1992 the General Assembly adopted resolution
47/1, which reads, so far as pertinent: [p 13]
"The General Assembly,
Having received the recommendation of the Security Council of 19 September
1992 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,
1. 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";
17. Whereas the Under-Secretary-General and Legal Counsel of the United
Nations addressed a letter on 29 September 1992 to the Permanent
Representatives to the United Nations of Bosnia-Herzegovina and Croatia, in
which he stated that the "considered view of the United Nations Secretariat
regarding the political consequences of the adoption by the General Assembly
of resolution 47/1" was as follows:
"While the General Assembly has stated unequivocally that the Federal
Republic of Yugoslavia (Serbia and Montenegro) cannot automatically continue
the membership of the former Socialist Federal Republic of Yugoslavia in the
United Nations and that the Federal Republic of Yugoslavia (Serbia and
Montenegro) should apply for membership in the United Nations, the only
practical consequence that the resolution draws is that the Federal Republic
of Yugoslavia (Serbia and Montenegro) shall not participate in the work of
the General Assembly. It is clear, therefore, that representatives of the
Federal Republic of Yugoslavia (Serbia and Montenegro) can no longer
participate in the work of the General Assembly, its subsidiary organs, nor
conferences and meetings convened by it.
On the other hand, the resolution neither terminates nor suspends
Yugoslavia's membership in the Organization. Consequently, the seat and
nameplate remain as before, but in Assembly bodies representatives of the
Federal Republic of Yugoslavia (Serbia and Montenegro) cannot sit behind the
sign 'Yugoslavia'. Yugoslav missions at United Nations Headquarters and
offices may continue to function and may receive and circulate documents. At
Headquarters, the Secretariat will continue to fly the flag of the old
Yugoslavia as it is the last flag of Yugoslavia used by the Secretariat. The
resolution does not take away the right of Yugoslavia to participate in the
work of organs [p 14] other than Assembly bodies. The admission to the
United Nations of a new Yugoslavia under Article 4 of the Charter will
terminate the situation created by resolution 47/1";
18. Whereas, while the solution adopted is not free from legal difficulties,
the question whether or not Yugoslavia is a Member of the United Nations and
as such a party to the Statute of the Court is one which the Court does not
need to determine definitively at the present stage of the proceedings;
19. Whereas Article 35 of the Statute, after providing that the Court shall
be open to the parties to the Statute, continues:
"2. The conditions under which the Court shall be open to other States
shall, subject to the special provisions contained in treaties in force, be
laid down by the Security Council, but in no case shall such conditions
place the parties in a position of inequality before the Court";
whereas the Court therefore considers that proceedings may validly be
instituted by a State against a State which is a party to such a special
provision in a treaty in force, but is not party to the Statute, and
independently of the conditions laid down by the Security Council in its
resolution 9 of 1946 (cf. S.S. "Wimbledon", P.C.I.J. 1923, Series A, No. 1,
p. 6); whereas a compromissory clause in a multilateral convention, such as
Article IX of the Genocide Convention relied on by Bosnia-Herzegovina in the
present case, could, in the view of the Court, be regarded prima facie as a
special provision contained in a treaty in force; whereas accordingly if
Bosnia-Herzegovina and Yugoslavia are both parties to the Genocide
Convention, disputes to which Article IX applies are in any event prima
facie within the jurisdiction ratione personae of the Court;
*
20. Whereas the Court must therefore now consider its jurisdiction ratione
materiae; whereas Article IX of the Genocide Convention, upon which
Bosnia-Herzegovina in its Application claims to found the jurisdiction of
the Court, provides that
"Disputes between the Contracting Parties relating to the interpretation,
application or fulfilment of the present Convention, including those
relating to the responsibility of a State for genocide or for any of the
other acts enumerated in article III, shall be submitted to the
International Court of Justice at the request of any of the parties to the
dispute";
[p 15]
21. Whereas the former Socialist Federal Republic of Yugoslavia signed the
Genocide Convention on 11 December 1948, and deposited an instrument of
ratification, without reservation, on 29 August 1950; whereas both Parties
to the present case correspond to parts of the territory of the former
Socialist Federal Republic of Yugoslavia;
22. Whereas at the time of the proclamation of the Federal Republic of
Yugoslavia (that is to say the Respondent in the present proceedings) on 27
April 1992, a formal declaration was adopted on its behalf to the effect
that
"The Federal Republic of Yugoslavia, continuing the State, international
legal and political personality of the Socialist Federal Republic of
Yugoslavia, shall strictly abide by all the commitments that the Socialist
Federal Republic of Yugoslavia assumed internationally";
and whereas this intention of Yugoslavia to honour the international
treaties of the former Yugoslavia was confirmed in an official Note from the
Permanent Mission of Yugoslavia to the United Nations, addressed to the
Secretary-General, dated 27 April 1992;
23. Whereas Bosnia-Herzegovina on 29 December 1992 transmitted to the
Secretary-General of the United Nations, the depositary of the Genocide
Convention, a Notice of Succession in the following terms:
"the Government of the Republic of Bosnia and Herzegovina, having considered
the Convention on the Prevention and Punishment of the Crime of Genocide, of
December 9, 1948, to which the former Socialist Federal Republic of
Yugoslavia was a party, wishes to succeed to the same and undertakes
faithfully to perform and carry out all the stipulations therein contained
with effect from March 6, 1992, the date on which the Republic of Bosnia and
Herzegovina became independent";
and whereas the Secretary-General on 18 March 1993 communicated the
following Depositary Notification to the parties to the Genocide Convention:
"On 29 December 1992, the notification of succession by the Government of
Bosnia and Herzegovina to the above-mentioned Convention was deposited with
the Secretary-General, with effect from 6 March 1992, the date on which
Bosnia and Herzegovina assumed responsibility for its international
relations";
24. Whereas Yugoslavia has disputed the validity and effect of the Notice of
29 December 1992, contending that no rule of general international law gives
Bosnia-Herzegovina the right to proclaim unilaterally that it is now a party
to the Genocide Convention merely because the former Socialist Federal
Republic of Yugoslavia was a party to the Convention and the Convention was
thus applicable to what is now the territory [p 16] of Bosnia-Herzegovina,
that the "declaration of succession" procedure provided for in the Vienna
Convention on Succession of States in respect of Treaties (which Convention
is not in force) was evolved for, and is applicable only in, cases of
decolonization, and is therefore not open to Bosnia-Herzegovina; and that
the Notice of 29 December 1992, if construed as an instrument of accession
under Article XI of the Genocide Convention, can only "become effective on
the ninetieth day following the deposit of the instrument" in accordance
with Article XIII of the Convention; whereas Yugoslavia concludes that the
Court has jurisdiction under the Genocide Convention, if at all, only in
respect of facts subsequent to the expiration of 90 days from the Notice of
29 December 1992;
25. Whereas the Court observes that the Secretary-General has treated
Bosnia-Herzegovina, not as acceding, but as succeeding to the Genocide
Convention, and if this be so the question of the application of Articles XI
and XIII of the Convention would not arise; whereas however the Court notes
that even if Bosnia-Herzegovina were to be treated as having acceded to the
Genocide Convention, with the result that the Application might be said to
be premature when filed, "this circumstance would now be covered" by the
fact that the 90-day period elapsed between the filing of the Application
and the oral proceedings on the request (cf. Mavrommatis Palestine
Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 34);
whereas the Court, in deciding whether to indicate provisional measures is
concerned, not so much with the past as with the present and with the
future; whereas, accordingly even if its jurisdiction suffers from the
temporal limitation asserted by Yugoslavia - which it does not now have to
decide - this is not necessarily a bar to the exercise of its powers under
Article 41 of the Statute;
26. Whereas Article IX of the Genocide Convention, to which both
Bosnia-Herzegovina and Yugoslavia are parties, thus appears to the Court to
afford a basis on which the jurisdiction of the Court might be founded to
the extent that the subject-matter of the dispute relates to "the
interpretation, application or fulfilment" of the Convention, including
disputes "relating to the responsibility of a State for genocide or for any
of the other acts enumerated in Article III" of the Convention;
*
27. Whereas on 31 March 1993 the Agent of Bosnia-Herzegovina submitted, as
constituting an additional basis of jurisdiction of the Court in this case,
a letter, dated 8 June 1992, addressed to the President of the Arbitration
Commission of the International Conference for Peace in [p 17] Yugoslavia by
Mr. Momir Bulatovic, President of the Republic of Montenegro, and Mr.
Slobodan Milosevic, President of the Republic of Serbia; whereas the Court
considers that the fact that this letter was not invoked in the Application
as a basis of jurisdiction does not in itself constitute a bar to reliance
being placed upon it in the further course of the proceedings (cf. Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), I.C.J. Reports 1984, pp. 426-427, para. 80);
28. Whereas the letter of 8 June 1992 referred to a letter which the
President of the Arbitration Commission had on 3 June 1992 addressed to the
Presidents of the Republics of Bosnia and Herzegovina, Croatia, Macedonia,
Montenegro, Serbia and Slovenia and to the Presidency of the Federal
Republic of Yugoslavia, requesting a statement of the position of their
respective countries on three questions raised by the Chairman of the
Conference for Peace in Yugoslavia; whereas the first question was whether
the Federal Republic of Yugoslavia was a new State calling for recognition
by the Member States of the European Community, the second question was
whether the dissolution of the former Socialist Federal Republic of
Yugoslavia could be regarded as complete, and the third was:
"If this is the case, on what basis and by what means should the problems of
the succession of States arising between the different States emerging from
the Socialist Federal Republic of Yugoslavia be settled?"
29. Whereas in the joint letter of 8 June 1992, the President of Montenegro
and the President of Serbia challenged the Commission's competence to give
an opinion on the three questions submitted to it, and went on to say, in
the English translation supplied by Bosnia-Herzegovina from the original
Serbo-Croat:
"2. It is the principled position of FR Yugoslavia that all questions
involved in the overall settlement of the Yugoslav crisis should be resolved
in an agreement between FR Yugoslavia and all the former Yugoslav republics.
3. FR Yugoslavia holds the view that all legal disputes which cannot be
settled by agreement between FR Yugoslavia and the former Yugoslav republics
should be taken to the International Court of Justice, as the principal
judicial organ of the United Nations.
Accordingly, and in view of the fact that all the issues raised in your
letter are of a legal nature, FR Yugoslavia proposes that in the event that
agreement is not reached among the participants in the Conference, these
questions should be adjudicated by the International Court of Justice, in
accordance with its Statute"; [p 18]
30. Whereas Bosnia-Herzegovina interprets this text as an offer by the
Federal Republic of Yugoslavia to submit all outstanding legal disputes
between itself and Bosnia-Herzegovina to the Court, and in reliance on this
offer the Agent of Bosnia-Herzegovina at the hearings stated that
Bosnia-Herzegovina
"hereby submits to the Court all of the legal disputes between it and ...
Yugoslavia that have been set forth in our Application [and] Request for
provisional measures",
and submitted
"that this formal expression of intention to submit to the jurisdiction of
this Court by the appropriate authorities ... provides an additional
jurisdiction for the Court to decide all the outstanding legal disputes
between us";
and requested the Court "to consider this additional jurisdictional basis
... in support of [the] request for an indication of provisional measures";
31. Whereas however at the present stage of the proceedings, and on the
basis of the information before the Court, it is by no means clear to the
Court whether the letter of 8 June 1992 was intended as an "immediate
commitment" by the two Presidents, binding on Yugoslavia, to accept
unconditionally the unilateral submission to the Court of a wide range of
legal disputes (cf. Aegean Sea Continental Shelf, I.C.J. Reports 1978, p.
44, para. 108); or whether it was intended as a commitment solely to
submission to the Court of the three questions raised by the Chairman of the
Committee; or as no more than the enunciation of a general policy of
favouring judicial settlement, which did not embody an offer or commitment;
32. Whereas the Court is thus unable to regard the letter of 8 June 1992 as
constituting a prima facie basis of jurisdiction in the present case and
must proceed therefore on the basis only that it has prima facie
jurisdiction, both ratione personae and ratione materiae, under Article IX
of the Genocide Convention;
*
33. Whereas Yugoslavia has drawn attention to the numerous resolutions
adopted by the United Nations Security Council concerning the situation in
the former Yugoslavia, and to the fact that in that respect the Security
Council has taken decisions on the basis of Article 25 of the Charter, and
has indicated expressly that it is acting under Chapter VII of the Charter;
whereas Yugoslavia contends that so long as the Security Council is acting
in accordance with Article 25 and under that Chapter, "it would be premature
and inappropriate for the Court to indicate provisional measures, and
certainly provisional measures of the type which [p 19] have been
requested"; whereas the Court understands this objection as being primarily
addressed to those measures requested by Bosnia-Herzegovina which go beyond
matters within the scope of the Genocide Convention, and which for that
reason the Court cannot consider; whereas however in any event, as the Court
has observed in a previous case, while there is in the Charter
"a provision for a clear demarcation of functions between the General
Assembly and the Security Council, in respect of any dispute or situation,
that the former should not make any recommendation with regard to that
dispute or situation unless the Security Council so requires, there is no
similar provision anywhere in the Charter with respect to the Security
Council and the Court. The Council has functions of a political nature
assigned to it, whereas the Court exercises purely judicial functions. Both
organs can therefore perform their separate but complementary functions with
respect to the same events" (Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1984, pp. 434-435, para. 95);
*
34. Whereas the power of the Court to indicate provisional measures under
Article 41 of the Statute of the Court has as its object to preserve the
respective rights of the parties pending the decision of the Court, and
presupposes that irreparable prejudice shall not be caused to rights which
are the subject of dispute in judicial proceedings; and whereas it follows
that the Court must be concerned to preserve by such measures the rights
which may subsequently be adjudged by the Court to belong either to the
Applicant or to the Respondent;
35. Whereas the Court, having established the existence of a basis on which
its jurisdiction might be founded, ought not to indicate measures for the
protection of any disputed rights other than those which might ultimately
form the basis of a judgment in the exercise of that jurisdiction; whereas
accordingly the Court will confine its examination of the measures
requested, and of the grounds asserted for the request for such measures, to
those which fall within the scope of the Genocide Convention;
**
36. Whereas the legal rights sought to be protected by the indication of
provisional measures are enumerated in the request of Bosnia-Herzegovina for
the indication of such measures as follows: [p 20]
"(a) the right of the citizens of Bosnia and Herzegovina physically to
survive as a People and as a State;
(b) the rights of the People of Bosnia and Herzegovina to life, liberty, and
security, as well as the other basic human rights specified in the 1948
Universal Declaration of Human Rights;
(c) the right of the People and State of Bosnia and Herzegovina to be free
at all times from acts of genocide and other genocidal acts perpetrated upon
Them by Yugoslavia (Serbia and Montenegro), acting together with its agents
and surrogates in Bosnia and elsewhere;
(d) the right of the People and State of Bosnia and Herzegovina to be free
at all times from the use or threat of force against Them by a foreign State
acting in conjunction with its agents and surrogates on Their sovereign
territory and elsewhere;
(e) the right of Bosnia and Herzegovina to conduct its affairs and to
determine matters within its domestic jurisdiction without interference or
intervention by any foreign State acting directly or by means of agents and
surrogates, or both;
(f) the right of self-determination of the People of Bosnia and Herzegovina;
(g) the basic right of sovereign existence for the People and State of
Bosnia and Herzegovina";
37. Whereas Yugoslavia similarly seeks the protection of certain rights by
the provisional measures recommended by it, set out in paragraph 9 above;
38. Whereas however, with respect to the measures requested both by
Bosnia-Herzegovina and by Yugoslavia, the Court is, as observed above,
confined to the consideration of such rights under the Genocide Convention
as might form the subject-matter of a judgment of the Court in the exercise
of its jurisdiction under Article IX of that Convention;
39. Whereas the definition of genocide in Article II of the Genocide
Convention reads, so far as relevant:
"In the present Convention, genocide means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;..."; [p
21]
40. Whereas the Applicant has brought before the Court, in the Statement of
Facts in its Application, and in the subsequent document entitled
"Supplementary Submission", accounts of military and paramilitary
activities, including the bombing and shelling of towns and villages, the
destruction of houses and forced migration of civilians, and of acts of
violence, including execution, murder, torture, and rape which, in the
circumstances in which they have occurred, show, in the view of the
Applicant, that acts of genocide have been committed, and will continue to
be committed against, in particular, the Muslim inhabitants of
Bosnia-Herzegovina;
41. Whereas Bosnia-Herzegovina claims in the Application that the acts there
complained of have been committed by former members of the Yugoslav People's
Army (YPA) and by Serb military and paramilitary forces under the direction
of, at the behest of, and with assistance from Yugoslavia, and that
Yugoslavia is therefore fully responsible under international law for their
activities; and whereas in its request for the indication of provisional
measures Bosnia-Herzegovina similarly contends that the facts stated in the
Application show that Yugoslavia is committing acts of genocide, both
directly and by means of its agents and surrogates, and that there is no
reason to believe that Yugoslavia will voluntarily desist from this course
of conduct while the case is pending before the Court;
42. Whereas Yugoslavia observes that the situation is not one of aggression
by one State against another, but a civil war, and asserts that it has no
soldiers in the territory of Bosnia-Herzegovina, that it does not militarily
support any side in the conflict, and that it does not support or abet in
any way the commission of crimes cited in the Application; that Yugoslavia
and its subordinate bodies, including the military, have not committed and
are not committing any of the acts to which Article III of the Genocide
Convention refers; and that the claims presented in the Application are
without foundation; and whereas Yugoslavia has also argued that what
Bosnia-Herzegovina is seeking is an interim judgment on the merits of the
case, which is not covered by Article 41 of the Statute (cf. Factory at
Chorzow (Indemnities), Order of 21 November 1927, P.C.I.J., Series A, No.
12, p. 10);
43. Whereas Yugoslavia in its written observations on the request for the
indication of provisional measures "requests the Court to establish the
responsibility of the authorities" of Bosnia-Herzegovina for acts of
genocide against the Serb people in Bosnia-Herzegovina, and indicates its
intention to submit evidence to that effect; and whereas Yugoslavia claimed
at the hearings that genocide and genocidal acts are being carried out
against Serbs living in Bosnia-Herzegovina; whereas Bosnia-Herzegovina for
its part contends however that there is no basis in fact or in law for the
indication of provisional measures against it, there being no credible
evidence that its Government has committed acts of genocide against anyone;
[p 22]
44. Whereas the Court, in the context of the present proceedings on a
request for provisional measures, has in accordance with Article 41 of the
Statute to consider the circumstances drawn to its attention as requiring
the indication of provisional measures, but cannot make definitive findings
of fact or of imputability, and the right of each Party to dispute the facts
alleged against it, to challenge the attribution to it of responsibility for
those facts, and to submit arguments in respect of the merits, must remain
unaffected by the Court's decision;
45. Whereas Article I of the Genocide Convention provides that:
"The Contracting Parties confirm that genocide, whether committed in time of
peace or in time of war, is a crime under international law which they
undertake to prevent and to punish";
whereas all parties to the Convention have thus undertaken "to prevent and
to punish" the crime of genocide; whereas in the view of the Court, in the
circumstances brought to its attention and outlined above in which there is
a grave risk of acts of genocide being committed, Yugoslavia and
Bosnia-Herzegovina, whether or not any such acts in the past may be legally
imputable to them, are under a clear obligation to do all in their power to
prevent the commission of any such acts in the future;
46. Whereas the Court is not called upon, for the purpose of its decision on
the present request for the indication of provisional measures, now to
establish the existence of breaches of the Genocide Convention by either
Party, but to determine whether the circumstances require the indication of
provisional measures to be taken by the Parties for the protection of rights
under the Genocide Convention; and whereas the Court is satisfied, taking
into account the obligation imposed by Article I of the Genocide Convention,
that the indication of measures is required for the protection of such
rights; and whereas Article 75, paragraph 2, of the Rules of Court
recognizes the power of the Court, when a request for provisional measures
has been made, to indicate measures that are in whole or in part other than
those requested, or that ought to be taken or complied with by the party
which has itself made the request;
*
47. Whereas Bosnia-Herzegovina also invokes Article VIII of the Genocide
Convention, which provides that
"Any Contracting Party may call upon the competent organs of the United
Nations to take such action under the Charter of the United Nations as they
consider appropriate for the prevention and suppression of acts of genocide
or any of the other acts enumerated in article III", [p 23]
and Bosnia-Herzegovina calls upon the Court to "act immediately and
effectively to do whatever it can to prevent and suppress" the acts of
genocide complained of or threatened; whereas the Court considers Article
VIII, even assuming it to be applicable to the Court as one of the
"competent organs of the United Nations", appears not to confer on it any
functions or competence additional to those provided for in its Statute;
whereas accordingly the Court at this stage of the proceedings is not
required to do more than consider what provisional measures may be called
for under Article 41 of the Statute;
*
48. Whereas in its request for the indication of provisional measures
Bosnia-Herzegovina has also maintained that the Court should exercise its
power to indicate provisional measures with a view to preventing the
aggravation or extension of the dispute whenever it considers that
circumstances so require; whereas from the information available to the
Court it is satisfied that there is a grave risk of action being taken which
may aggravate or extend the existing dispute over the prevention or
punishment of the crime of genocide, or render it more difficult of
solution;
**
49. Whereas the crime of genocide "shocks the conscience of mankind, results
in great losses to humanity ... and is contrary to moral law and to the
spirit and aims of the United Nations", in the words of General Assembly
resolution 96 (I) of 11 December 1946 on "the Crime of Genocide", which the
Court recalled in its Advisory Opinion on Reservations on the Convention on
Genocide (I.C.J. Reports 1951, p. 23);
**
50. Whereas in the light of the several considerations set out above, the
Court finds that the circumstances require it to indicate provisional
measures, as provided by Article 41 of the Statute of the Court;
51. Whereas the decision given in the present proceedings in no way
prejudges the question of the jurisdiction of the Court to deal with the
merits of the case, or any questions relating to the admissibility of the
Application, or relating to the merits themselves, and leaves unaffected the
right of the Governments of Bosnia-Herzegovina and Yugoslavia to submit
arguments in respect of those questions;
*** [p 24]
52. For these reasons,
The Court,
Indicates, pending its final decision in the proceedings instituted on 20
March 1993 by the Republic of Bosnia and Herzegovina against the Federal
Republic of Yugoslavia (Serbia and Montenegro), the following provisional
measures:
A. (1) Unanimously,
The Government of the Federal Republic of Yugoslavia (Serbia and Montenegro)
should immediately, in pursuance of its undertaking in the Convention on the
Prevention and Punishment of the Crime of Genocide of 9 December 1948, take
all measures within its power to prevent commission of the crime of
genocide;
(2) By 13 votes to 1,
The Government of the Federal Republic of Yugoslavia (Serbia and Montenegro)
should in particular ensure that any military, paramilitary or irregular
armed units which may be directed or supported by it, as well as any
organizations and persons which may be subject to its control, direction or
influence, do not commit any acts of genocide, of conspiracy to commit
genocide, of direct and public incitement to commit genocide, or of
complicity in genocide, whether directed against the Muslim population of
Bosnia and Herzegovina or against any other national, ethnical, racial or
religious group;
In favour: President Sir Robert Jennings; Vice-President Oda; Judges Ago,
Schwebel, Bedjaoui, Ni, Evensen, Guillaume, Shahabuddeen, Aguilar Mawdsley,
Weeramantry, Ranjeva, Ajibola;
Against: Judge Tarassov;
B. Unanimously,
The Government of the Federal Republic of Yugoslavia (Serbia and Montenegro)
and the Government of the Republic of Bosnia and Herzegovina should not take
any action and should ensure that no action is taken which may aggravate or
extend the existing dispute over the prevention or punishment of the crime
of genocide, or render it more difficult of solution.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this eighth day of April, one thousand nine hundred
and ninety-three, in four copies, one of which will be placed in the
archives of the Court and the others transmitted respectively to the
Government of the Republic of Bosnia and Herzegovina, the Government [p 25]
of the Federal Republic of Yugoslavia (Serbia and Montenegro), and to the
Secretary-General of the United Nations for transmission to the Security
Council.
(Signed) R. Y. Jennings,
President.
(Signed) Eduardo Valencia-Ospina,
Registrar.
Judge Tarassov appends a declaration to the Order of the Court.
(Initialled) R.Y.J.
(Initialled) E.V.O.
[p 26]
Declaration of judge Tarassov
The appalling atrocities which have taken place in the territory of the
former State of Yugoslavia move me no less than they move my colleagues.
Nevertheless I have not been able to join with them in voting for all the
operative paragraphs of the Order, and I wish to say why.
I am generally in agreement with the consideranda and conclusions of the
Order, including its exclusion of the many elements of the request for
provisional measures which go far beyond the limited jurisdiction of the
Court under Article IX of the Genocide Convention. I support the provisional
measures indicated by the Court in paragraph 52 A (1) and paragraph 52 B. I
agree that the Government of the Federal Republic of Yugoslavia "should
immediately ... take all measures within its power to prevent commission of
the crime of genocide" - meaning, of course, measures within its real power.
In my opinion, the same measures should be taken under the same
understanding in respect of the Government of the Republic of Bosnia and
Herzegovina, which has responsibility over acts committed on its territory.
Unfortunately, the Court did not find it necessary to so provide. I agree
that the Government of the Federal Republic of Yugoslavia and the Government
of Bosnia and Herzegovina should not take any action and should ensure that
no action is taken which may aggravate or extend the existing dispute over
the prevention or punishment of genocide or render it more difficult of
solution. Accordingly I have voted for these operative paragraphs of the
Order.
However, I regret that I have not been able to vote for the provision of
paragraph 52 A (2) that the Government of the Federal Republic of Yugoslavia
should in particular "ensure" that any military, paramilitary or irregular
armed units which "may" be directed or supported by it, and organizations or
persons which "may be subject to its control, direction or influence" do not
commit any acts of genocide, "of conspiracy to commit genocide", of
incitement to genocide or of "complicity in genocide". In my view, these
passages of the Order are open to the interpretation that the Court believes
that the Government of the Federal Republic of Yugoslavia is indeed involved
in such genocidal acts, or at least that it may very well be so involved.
Thus, on my view, these provisions are very close to a pre-judgment of the
merits, despite the Court's recognition that, in an Order indicating
provisional measures, it is not entitled to reach determinations of fact or
law. Moreover, these passages impose practically un-[p 27]limited,
ill-defined and vague requirements for the exercise of responsibility by the
Respondent in fulfilment of the Order of the Court, and lay the Respondent
open to unjustifiable blame for failing to comply with this interim measure.
The lack of balance in these provisions is the clearer in view of the way in
which the Court has singled out one element of the population of Bosnia and
Herzegovina. The Applicant when referring to the measures that it sought
(paragraph 3 of the Order) and the legal rights that it sought to have
protected (paragraph 36 of the Order) did not specify a particular group for
protection, but rather and quite properly used such terms as "the citizens"
or "the People" of Bosnia and Herzegovina.
Moreover, these objectionable provisions lack not only balance but
practicality. Is it really within the realm of the practical for the
Yugoslav Government to "ensure" that all persons who may claim to be subject
to its influence do not conspire to commit genocide or incite genocide?
Particularly when the persons who are accused of such acts are not its
citizens and not within its territorial jurisdiction? Someone may affirm
that he is under the influence of the Yugoslav Government without that being
the fact. I am convinced that the Court should not imply that the Yugoslav
Government may have responsibility for the commission of acts which in fact
may be beyond its control.
(Signed) Nikolai K. Tarassov. |
|
