13 September 1993

 

General List No. 91

 
     

international Court of Justice

     
 

Application of the Convention on the Prevention and Punishment of the Crime of Genocide

 
     

Bosnia and Herzegovina

 

v. 

Yugoslavia (Serbia and Montenegro)

     
     
 

Order

 
     
  Return Home
 
 
     
     
 
BEFORE: President: Sir Robert Jennings;
Vice-President: Oda;
Judges: Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ajibola, Herczegh
Judges ad hoc: Lauterpacht, Kreca
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1993.09.13_genocide_convention.htm
   
Citation: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. and Herz. v. Yugo.), 1993 I.C.J. 325 (Order of Sept. 13)
 
     
 
 
     
 


[p.325]
In the case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide,

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, 75 and 76 of the Rules of Court,

Having regard to the Order made by the Court on 8 April 1993, [p 326]

Makes the following Order:

1. Whereas by an 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 "Yugoslavia"), Bosnia-Herzegovina, basing the jurisdiction of the Court on Article IX 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"), recounts a series of events in Bosnia-Herzegovina from April 1992 up to the date of Application which, in its contention, amount to acts of genocide within the definition given in the Genocide Convention; 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 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 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 con-[p 327]tinuing 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 Herzegovina 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 imme-
[p 328]diate 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;

- 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; [p 329]

- 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 Rules of Court, and relying on the facts alleged 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 [p 330] 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.)";

4. Whereas in written observations, submitted to the Court on 1 April 1993, on the first request of Bosnia-Herzegovina for the indication of provisional measures, the Government of Yugoslavia [p 331]

"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;

- 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 related to the delivery of humanitarian aid, against the Serb population in the 'Republic of Bosnia and Herzegovina'";

5. Whereas by its Order of 8 April 1993 the Court indicated certain provisional measures which ought to be taken by Yugoslavia, and further indicated that the Government of Yugoslavia and the Government of Bosnia-Herzegovina should not take any action and should ensure that no action is taken which may aggravate or extend the existing dispute over [p 332] the prevention or punishment of the crime of genocide, or render it more difficult of solution;

6. Whereas by a second request filed in the Registry on 27 July 1993, Bosnia-Herzegovina, invoking Article 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court, and relying on the facts alleged in the Application and in the first request for provisional measures, and on further facts alleged in the second request, requested urgently that the Court indicate the following additional provisional measures to be in effect while the Court is seised of this case:

"1. 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, military, militia or paramilitary force, irregular armed unit, or individual in Bosnia and Herzegovina for any reason or purpose whatsoever.

2. That Yugoslavia (Serbia and Montenegro) and all of its public officials - including and especially the President of Serbia, Mr. Slobodan Milosevic - must immediately cease and desist from any and all efforts, plans, plots, schemes, proposals or negotiations to partition, dismember, annex or incorporate the sovereign territory of Bosnia and Herzegovina.

3. That the annexation or incorporation of any sovereign territory of the Republic of Bosnia and Herzegovina by Yugoslavia (Serbia and Montenegro) by any means or for any reason shall be deemed illegal, null, and void ab initio.

4. That the Government of Bosnia and Herzegovina must have the means 'to prevent' the commission of acts of genocide against its own People as required by Article I of the Genocide Convention.

5. That all Contracting Parties to the Genocide Convention are obliged by Article I thereof 'to prevent' the commission of acts of genocide against the People and State of Bosnia and Herzegovina.

6. That the Government of Bosnia and Herzegovina must have the means to defend the People and State of Bosnia and Herzegovina from acts of genocide and partition and dismemberment by means of genocide.

7. That all Contracting Parties to the Genocide Convention have the obligation thereunder 'to prevent' acts of genocide, and partition and dismemberment by means of genocide, against the People and State of Bosnia and Herzegovina.

8. That in order to fulfil its obligations under the Genocide Con-[p 333]vention under the current circumstance, the Government of Bosnia and Herzegovina must have the ability to obtain military weapons, equipment, and supplies from other Contracting Parties.

9. That in order to fulfil their obligations under the Genocide Convention under the current circumstances, all Contracting Parties thereto must have the ability to provide military weapons, equipment, supplies and armed forces (soldiers, sailors, airpeople) to the Government of Bosnia and Herzegovina at its request.

10. That United Nations Peacekeeping Forces in Bosnia and Herzegovina (i.e., UNPROFOR) must do all in their power to ensure the flow of humanitarian relief supplies to the Bosnian People through the Bosnian city of Tuzla";

7. Whereas on 27 July 1993, the day on which the second request for the indication of provisional measures was received in the Registry, the Deputy-Registrar notified the Government of Yugoslavia of the filing of the request, and sent a certified copy of the request to it in accordance with Article 73, paragraph 2, of the Rules of Court;

8. Whereas by a letter dated 28 July 1993 the Agent of Yugoslavia requested that the Court, when setting the date for a hearing on the second request for provisional measures, bear in mind the need for Yugoslavia, in view of the seriousness and extensiveness of that request, to be able adequately to prepare its response; whereas on 29 July 1993 the Deputy-Registrar informed the Parties that the President of the Court had fixed 25 August 1993 as the date for the opening of that hearing; whereas the Agent of Bosnia-Herzegovina, by letter of 30 July 1993, urged the President to reconsider the date; and whereas on 31 July 1993 the Deputy-Registrar informed the Parties that the President of the Court nevertheless considered it appropriate to maintain the date of 25 August 1993 for the opening of the hearing;

9. Whereas by a letter dated 4 August 1993, the Agent of Bosnia-Herzegovina stated that he was amending the second request for provisional measures by submitting a "request for an immediate Order without hearing pursuant to the Second Request" for provisional measures, in reliance on Article 75, paragraph 1, of the Rules of Court; and whereas a copy of this communication was forwarded to the Agents of Yugoslavia as soon as received;

10. Whereas the President of the Court addressed a message, dated 5 August 1993, to both Parties, referring to Article 74, paragraph 4, of the Rules of Court, which enables him, pending the meeting of the Court, "to call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects",

and stating: [p 334]

"I do now call upon the Parties so to act, and I stress that the provisional measures already indicated in the Order which the Court made after hearing the Parties, on 8 April 1993, still apply.

Accordingly I call upon the Parties to take renewed note of the Court's Order and to take all and any measures that may be within their power to prevent any commission, continuance, or encouragement of the heinous international crime of genocide";

11. Whereas written observations by Yugoslavia on the second request for provisional measures, as modified by the Agent of Bosnia-Herzegovina on 4 August 1993, were received in the Registry on 10 August; and whereas the submissions therein were as follows:

"The Federal Republic of Yugoslavia requests the Court to reject the Amended Second Request for the reasons stated above and because it is not based on the Rules of the Court. As well as because it is contrary to the well-established practice of the Court";

12. Whereas on 10 August 1993 a request, dated 9 August 1993, for the indication of provisional measures was filed in the Registry by Yugoslavia, whereby Yugoslavia requested the Court to indicate the following provisional measure:

"The Government of the so-called Republic of Bosnia and Herzegovina should immediately, in pursuance of its obligation under 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 against the Serb ethnic group";

13. Whereas by a letter of 11 August 1993 in response to the letter of 4 August 1993 from the Agent of Bosnia-Herzegovina (paragraph 9 above), the Registrar, on the President's instructions, reiterated the view of the Court, already conveyed to the Agent of Bosnia-Herzegovina in the context of the previous requests for provisional measures, by a letter of 24 March 1993, that the Court did not consider that the question arose of the exercise of its powers under Article 75, paragraph 1, of the Rules of Court

"where, as in the present case specific requests for the indication of provisional measures ... have been made by each of the Parties",

and that, in its view,

"those powers do not in any event extend to indicating measures without affording both Parties the opportunity of being heard"; [p 335]

14. Whereas by a series of communications, dated 6 August, 7 August, 8 August, 10 August, 13 August, 22 August, 23 August and 24 August 1993 the Agent of Bosnia-Herzegovina stated that he was further amending or supplementing the second request for provisional measures, as well as, in some cases, the Application instituting proceedings; and whereas copies of these communications were transmitted to the Agents of Yugoslavia as soon as received;

15. Whereas on 23 August 1993, Yugoslavia presented further written observations on the second request of Bosnia-Herzegovina for provisional measures, and made the following submissions:

"the Federal Republic of Yugoslavia requests the Court to reject all requests for indication of provisional measures, contained in all submissions of the Applicant State, because they are outside the jurisdiction of the Court, and for reasons expressed in the Observations of 9 August 1993";

16. Whereas, since the Court does not include upon the bench a judge of the nationality of either of the Parties, the Government of Bosnia-Herzegovina has chosen Mr. Elihu Lauterpacht, Q.C., and the Government of Yugoslavia Mr. Milenko Kreca, to sit as judges ad hoc in this case;

17. Whereas oral observations of the Parties on the request of each Party for provisional measures were presented, at public hearings held, pursuant to Article 74, paragraph 3, of the Rules of Court, on 25 and 26 August 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. Rodoljub Etinski and
Mr. Djordje Lopicic, Agents;
Mr. Miodrag Mitic,
Mr. Shabtai Rosenne;

18. Whereas at the public hearings questions were put by judges to both Parties, and replies were given either orally at the hearings, or subsequently in writing;

19. Whereas at the final stage of the hearings the Agent of Bosnia-Herzegovina confirmed the request for provisional measures set out in paragraph 6 above; and whereas the Agent of Yugoslavia then presented the following submissions:

"The Federal Republic of Yugoslavia asks the Court to reject all provisional measures requested by the Applicant State

- because the Court has no jurisdiction to indicate them; [p 336]

- because they are not founded on the new legally relevant facts;

- because of the abuse of rights of the request for provisional measures;

- because they would cause irreparable prejudice to the rights of the Federal Republic of Yugoslavia that the so-called Republic of Bosnia and Herzegovina fulfils its obligations under the Genocide Convention concerning the Serb people in Bosnia and Herzegovina;

- because they look to the past not to the future;

- because they mean an interim judgment;

- because the clarification of the provisions of the Genocide Convention cannot be the subject-matter of the provisional measures; and

- because they are ill-founded on Article 75, paragraph 1, of the Rules of Court.

Wishing to protect its rights by making the so-called Republic of Bosnia and Herzegovina to fulfil all its obligations concerning the protection of the Serb ethnic group according to the Genocide Convention,

the Federal Republic of Yugoslavia asks the Court to indicate the following provisional measure:

The Government of the so-called Republic of Bosnia-Herzegovina should immediately, in pursuance of its obligation under 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 against the Serb ethnic group";

*

20. Whereas, during the oral proceedings, the Agent of Bosnia-Herzegovina presented to the Court a further written communication, dated 25 August 1993, directed to supplementing and amending the second request for provisional measures and the Application instituting proceedings; whereas at the hearing of 26 August 1993 counsel for Yugoslavia protested at "the unending flood of sometimes heavy documentation" from the Agent of Bosnia-Herzegovina, and asked the Court to declare the communication of 25 August 1993 inadmissible; and whereas on 26 August 1993 the Agent of Bosnia-Herzegovina presented to the Court a further written communication supplementing the second request;

21. Whereas the submission by the Applicant of a series of documents, up to the eve of, and even during, the oral proceedings, in the circumstances set out in paragraphs 14 and 20 above, is difficult to reconcile with an orderly progress of the procedure before the Court, and with respect [p 337] for the principle of equality of the Parties; whereas however Article 74, paragraph 3, of the Rules of Court provides that "The Court shall receive and take into account any observations that may be presented to it before the closure of the oral proceedings"; whereas the Court, taking into account the urgency and the other circumstances of the matter, considers it possible to receive the documents in question as being in this case "observations" under that provision to the extent that they relate to the requests for the indication of provisional measures;

**

22. Whereas by its Order of 8 April 1993 the Court gave its decision on a first request for the indication of provisional measures presented by Bosnia-Herzegovina, and on a similar request by Yugoslavia, and indicated certain provisional measures; whereas an Order indicating, or declining to indicate, provisional measures may be revoked or modified, as stated in Article 76 of the Rules of Court; whereas however according to that text, the Court cannot revoke or modify an Order unless, "in its opinion, some change in the situation justifies" doing so, and where a request for measures has been rejected, any fresh request must, according to Article 75, paragraph 3, of the Rules of Court, be "based on new facts"; whereas the same applies when additional provisional measures are requested; whereas it is therefore for the Court to satisfy itself that the second request by Bosnia-Herzegovina, and that of Yugoslavia, are based upon new circumstances such as to justify their being examined; whereas, taking into account the development of the situation in Bosnia-Herzegovina in recent months, this condition should be regarded as satisfied;

23. Whereas Yugoslavia has disputed "the legitimacy of the Applicant" and contends, as it did at the time of the first request for provisional measures, that the President and Government of Bosnia-Herzegovina have no status to conduct proceedings before the Court; whereas the Court has been seised of the second request for provisional measures under essentially the same conditions as the first request; whereas therefore the objection of Yugoslavia should be rejected for the same reasons as the Court stated in paragraph 13 of its Order of 8 April 1993;

**

24. 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 appear,
[p 338] prima facie, to afford a basis on which the jurisdiction of the Court might be established;

25. Whereas in its Order of 8 April 1993 the Court considered that Article IX of the Genocide Convention, to which both the Applicant and the Respondent are parties, appeared 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" (I.C.J. Reports 1993, p. 16, para. 26);

26. Whereas Bosnia-Herzegovina also submitted to the Court, in support of its first request, as an additional basis of jurisdiction, a letter dated 8 June 1992 addressed to the President of the Arbitration Commission of the International Conference for Peace in Yugoslavia; whereas the Court concluded that it was "unable to regard" that letter

"as constituting a prima facie basis of jurisdiction in the present case", and considered that it had to "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";

27. Whereas the Agent of the Applicant has, both in its Application instituting proceedings and in its second request for the indication of provisional measures, reserved "the right to revise, supplement or amend" the Application and the request respectively; whereas in reliance on these reservations, by letters dated 6 August, 10 August and 13 August 1993, he submitted that the Court's jurisdiction is grounded not only on the jurisdictional bases previously put forward but also on certain additional texts, specified in the letters referred to;

28. Whereas the Applicant cannot, simply by reserving "the right to revise, supplement or amend" its Application or requests for provisional measures, confer on itself a right to invoke additional grounds of jurisdiction, not referred to in the Application instituting proceedings; whereas it will be for the Court, at an appropriate stage of the proceedings, to determine, if necessary, the validity of such claims; whereas however, as the Court has recognized, "An additional ground of jurisdiction may ... be brought to the Court's attention" after the filing of the Application,

"and the Court may take it into account provided the Applicant makes it clear that it intends to proceed upon that basis ... and provided also that the result is not to transform the dispute brought before the Court by the application into another dispute which is different in character ..." (Military and Paramilitary Activities in and [p 339] against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 427, para. 80);

whereas the Court thus concludes that, for the purposes of a request for indication of provisional measures, it should therefore not exclude a priori such additional bases of jurisdiction from consideration, but that it should consider whether the texts relied on may, in all the circumstances, including the considerations stated in the decision quoted above, afford a basis on which the jurisdiction of the Court to entertain the Application might prima facie be established;

*

29. Whereas the first additional basis of jurisdiction relied on by the Applicant is the Treaty between the Allied and Associated Powers (the United States of America, the British Empire, France, Italy and Japan) and the Kingdom of the Serbs, Croats and Slovenes, on the Protection of Minorities, signed at St. Germain-en-Laye on 10 September 1919 (hereinafter called "the 1919 Treaty"), which came into force on 16 July 1920; whereas Chapter I of the 1919 Treaty concerns protection of minorities, and includes an Article 11 whereby that protection was placed under the guarantee of the League of Nations; whereas that Article provides (inter alia):

"The Serb-Croat-Slovene State agrees that any Member of the Council of the League of Nations shall have the right to bring to the attention of the Council any infraction, or any danger of infraction, of any of these obligations, and that the Council may thereupon take such action and give such directions as it may deem proper and effective in the circumstances.

The Serb-Croat-Slovene State further agrees that any difference of opinion as to questions of law or fact arising out of these Articles between the Serb-Croat-Slovene State and any one of the Principal Allied and Associated Powers or any other Power, a member of the Council of the League of Nations, shall be held to be a dispute of an international character under Article 14 of the Covenant of the League of Nations. The Serb-Croat-Slovene State hereby consents that any such dispute shall, if the other party thereto demands, be referred to the Permanent Court of International Justice. The decision of the Permanent Court shall be final and shall have the same force and effect as an award under Article 13 of the Covenant";

whereas Chapter II of the 1919 Treaty, concerning succession to treaties, commerce, treatment of foreign vessels, and freedom of transit, contains an Article 16 which provides inter alia: [p 340]

"All rights and privileges accorded by the foregoing Articles to the Allied and Associated Powers shall be accorded equally to all States Members of the League of Nations";

and whereas the Applicant contends that the effect of these two Articles is that a dispute to which Article 11 of the 1919 Treaty applied could be referred to the Permanent Court of International Justice by any State which was a Member of the League of Nations; whereas the Applicant contends further that the jurisdiction conferred on the Permanent Court of International Justice by the 1919 Treaty is exercisable by the present Court by virtue of Article 37 of the Statute of the Court;

30. Whereas the Applicant contends further that Yugoslavia has succeeded to the rights and obligations of the Kingdom of the Serbs, Croats and Slovenes under the 1919 Treaty; and whereas, as regards its own right to invoke the 1919 Treaty, the Applicant contends that, in the light of, inter alia, General Assembly resolution 24 (I), the United Nations has assumed the functions and powers of the League of Nations regarding, inter alia, the 1919 Treaty, and the General Assembly has substituted itself for the Council of the League in that respect, and concludes that

"Bosnia-Herzegovina, as a member State of the United Nations, thus is in the position of the States described in Articles 11 and 16 of the Serb-Croat-Slovene Treaty, namely, the member States of the League, and thus its dispute with Yugoslavia (Serbia and Montenegro) is one over which this Court has jurisdiction";

31. Whereas in order to reach a decision on the contentions of Bosnia-Herzegovina as to the 1919 Treaty as a basis of jurisdiction, the Court will not have to pronounce on the question whether Articles 11 and 16 of the 1919 Treaty are still in force, nor on their interpretation; whereas the 1919 Treaty on the face of its text imposes an obligation on the Kingdom of the Serbs, Croats and Slovenes to protect minorities within its own territory; whereas accordingly, if, and in so far as, Yugoslavia is now bound by the 1919 Treaty as successor of that Kingdom, its obligations under it would appear to be limited to the present territory of Yugoslavia; whereas Bosnia-Herzegovina has put forward no claim in its Application concerning the treatment of minorities in Yugoslavia, and has requested no provisional measures in that respect; whereas therefore the Court considers that, in any event, the 1919 Treaty is irrelevant to the present request for provisional measures;

*

32. Whereas the second of the additional bases of jurisdiction put forward by the Applicant is the letter, dated 8 June 1992, addressed to the [p 341] President of the Arbitration Commission of the International Conference for Peace in Yugoslavia by Mr. Momir Bulatovic, President of the Republic of Montenegro, and Mr. Slobodan Milosevic, President of the Republic of Serbia, already referred to in paragraph 26 above; whereas in its Order of 8 April 1993 the Court, after examining this letter, concluded that it was unable to regard it "as constituting a prima facie basis of jurisdiction in the present case" (I.C.J. Reports 1993, p. 18, para. 32); whereas the Applicant has not put forward any new fact which might lead the Court to reopen the question; whereas the Applicant's submission on the point must be rejected;

*

33. Whereas it is claimed by the Applicant that

"the Court's jurisdiction is also grounded in the Customary and Conventional International Laws of War and International Humanitarian Law, including but not limited to the four Geneva Conventions of 1949, their First Additional Protocol of 1977, the Hague Regulations on Land Warfare of 1907, and the Nuremberg Charter, Judgment, and Principles";

whereas however the Applicant has not brought to the attention of the Court any provision in the texts enumerated conferring upon the Court jurisdiction to deal with a dispute between the Parties concerning matters to which those texts relate; whereas such jurisdiction is not prima facie established;

*

34. Whereas, in the context of the first request made by the Applicant for the indication of provisional measures, the Respondent also, by a communication of 1 April 1993, recommended that such measures, listed in paragraph 9 of the Court's Order of 8 April 1993, be indicated; whereas some of the measures so requested might be directed to the protection of rights going beyond those covered by the Genocide Convention; and whereas the question thus arises whether, by requesting such measures, the Respondent might have agreed that the Court should have a wider jurisdiction, in accordance with the doctrine known as that of forum prorogatum; whereas however the provisional measure requested by Yugoslavia in a subsequent request, dated 9 August 1993 (paragraph 12 above), was directed solely to protection of asserted rights under the Genocide Convention; whereas moreover the Respondent has constantly denied that the Court has jurisdiction to entertain the dispute, on the basis of that Convention or on any other basis; whereas in the circumstances the communication from Yugoslavia cannot, even prima facie, be interpreted [p 342] as "an unequivocal indication" of a "voluntary and indisputable" acceptance of the Court's jurisdiction (cf. Rights of Minorities in Upper Silesia (Minority Schools), P.C.I.J., Series A, No. 15, p. 24; Corfu Channel, Preliminary Objection, Judgment, I.C.J. Reports 1948, p. 27);

*

35. 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 should 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;

36. Whereas the Court, having established the existence of one basis on which its jurisdiction might be founded, namely Article IX of the Genocide Convention, and having been unable to find that other suggested bases could prima facie be accepted as such, 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 the jurisdiction thus prima facie established;

**

37. Whereas by its Order of 8 April 1993 the Court indicated,

"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 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 [p 343] 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;

..........................................................

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" (I.C.J. Reports 1993, p. 24, para. 52);

38. Whereas the legal rights sought to be protected by the indication of provisional measures are enumerated in the second request of Bosnia-Herzegovina for the indication of such measures as follows:

"(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, security, and bodily and mental integrity, 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 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 directed 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". [p 344]

(h) the right of the Republic of Bosnia and Herzegovina to continue to exist as a Member State of the United Nations Organization itself";

39. Whereas however, with respect to the measures requested, the Court is, for the reasons explained 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; whereas the rights listed at (a) to (g) were asserted in almost identical terms, and their protection was claimed to be necessary, in the first request of Bosnia-Herzegovina for provisional measures, filed on 20 March 1993; whereas of the rights listed only that indicated in paragraph (c) is such that it may prima facie to some extent fall within the rights arising under the Genocide Convention; and whereas it was therefore in relation to that paragraph and for the protection of rights under the Convention that the Court indicated provisional measures in its Order of 8 April 1993; whereas accordingly it is for Bosnia-Herzegovina, having filed a second request for the indication of provisional measures, to show that such further measures are necessary for the protection of those rights;

40. Whereas the list of measures which the Applicant now requests the Court to indicate, set out in paragraph 6 above, includes certain measures (and in particular those numbered 5, 7, 9 and 10 on that list) which would be addressed to States or entities not parties to the proceedings; whereas the Applicant has explained that it is not asking for an Order binding upon any State other than the Parties, but for a clarification of the Applicant's rights "which can be used in the Security Council and the General Assembly and elsewhere"; whereas the judgment in a particular case by which disputed rights may be adjudged by the Court to belong to the Applicant or to the Respondent has, in accordance with Article 59 of the Statute of the Court, "no binding force except between the parties"; whereas accordingly the Court may, for the preservation of those rights, indicate provisional measures to be taken by the parties, but not by third States or other entities who would not be bound by the eventual judgment to recognize and respect those rights; whereas consequently the Court cannot, in the exercise of its power to indicate provisional measures, indicate by way of "clarification" that those States or entities should take, or refrain from, specific action in relation to the acts of genocide which the Applicant alleges are being committed in Bosnia-Herzegovina;

41. Whereas three of the measures requested by the Applicant (those numbered 4, 6 and 8 on the list in paragraph 6 above) provide that the Government of Bosnia-Herzegovina "must have the means" to prevent the commission of genocide, and to defend its people against genocide,
[p 345] and "must have the ability to obtain military weapons, equipment, and supplies" from the other parties to the Genocide Convention; whereas the Applicant has made it clear in its written and oral observations that it bases these proposed measures on the Genocide Convention and on the right of self-defence referred to in Article 51 of the United Nations Charter, and on its claim that because of the arms embargo laid down by the Security Council by resolution 713 (1991), the Applicant is unable to protect its people from genocide; whereas a similar claim was before the Court when it examined the first request for provisional measures, when some of the requested measures were directed to the question of self-defence, but were not regarded by the Court as within the scope of the jurisdiction under Article IX of the Genocide Convention; whereas Article 41 of the Statute empowers the Court to indicate measures "which ought to be taken to preserve the respective rights of either party", and for the reasons given in paragraph 39 above this means measures which ought to be taken by one or both parties to the case; whereas however it is clear that the intention of the Applicant in requesting these measures is not that the Court indicate that the Respondent ought to take certain steps for the preservation of the Applicant's rights, but rather that the Court make a declaration of what those rights are, which "would clarify the legal situation for the entire international community", in particular the Members of the United Nations Security Council; whereas accordingly this request must be regarded as outside the scope of Article 41 of the Statute;

42. Whereas two of the measures requested by the Applicant (those numbered 2 and 3 on the list in paragraph 6 above) relate to the possibility of "partition and dismemberment", annexation or incorporation of the sovereign territory of Bosnia and Herzegovina (and this question is also referred to in measures numbers 6 and 7); whereas it appears to the Court, from the definition of genocide in Article II of the Genocide Convention (set out, so far as relevant, in paragraph 39 of the Court's Order of 8 April 1993), that its essential characteristic is the intended destruction of "a national, ethnical, racial or religious group", and not the disappearance of a State as a subject of international law or a change in its constitution or its territory; whereas, accordingly, the Court is unable to accept, for the purpose of the present request for the indication of provisional measures, that a "partition and dismemberment", or annexation of a sovereign State, or its incorporation into another State, could in itself constitute an act of genocide and thus a matter falling within the jurisdiction of the Court under Article IX of the Genocide Convention; whereas, on the other hand, in so far as it is the Applicant's contention that such "partition and dismemberment", annexation or incorporation will result from genocide, the Court, in its Order of 8 April 1993 has already indicated that Yugoslavia should [p 346]"take all measures within its power to prevent commission of the crime of genocide", whatever might be its consequences;

43. Whereas the remaining measure requested by the Applicant (that numbered 1 in the list in paragraph 6 above), which does not refer to the Genocide Convention, is almost identical in wording with the second measure requested in Bosnia-Herzegovina's first request for provisional measures (set out in paragraph 3 above), save that it is wider in scope; whereas in its Order of 8 April 1993 the Court, having found that it ought not to indicate measures for the protection of disputed rights other than those which might form the basis of a judgment in the exercise of its jurisdiction under Article IX of the Genocide Convention, indicated measures which did not specify the measure then requested; whereas the same considerations continue to govern;

**

44. Whereas the request of Yugoslavia for the indication of the provisional measure set out in paragraph 12 above is based upon the contention that the facts presented to the Court demonstrate

"that the same degree of urgency, and the same unhappy prospect of irreparable harm, exist in the case of the Serb ethnic group in Bosnia and Herzegovina as is being alleged with regard to other groups in that population";

and that accordingly it would be appropriate that a measure be indicated, addressed to Bosnia-Herzegovina, in the terms set out in paragraph 12 above, parallel to that addressed to Yugoslavia in paragraph 52 A (1) of the Court's Order of 8 April 1993;

45. Whereas the measure requested by Yugoslavia would be appropriate to protect rights under the Genocide Convention, which are accordingly within the prima facie jurisdiction of the Court; whereas, on the evidence and information available to it, the Court must also recognize the existence of some risk to the persons whose protection Yugoslavia seeks; whereas however the question for the Court is whether the circumstances are such as to "require" the indication of provisional measures, in accordance with Article 41 of the Statute;

46. Whereas by paragraph 52 A of its Order of 8 April 1993 the Court, having indicated that Yugoslavia should take all measures within its power to prevent genocide, indicated what "in particular" were the appropriate measures to be taken by Yugoslavia in the circumstances of the case, where the risk was of genocide not on Yugoslav territory but in [p 347] Bosnia-Herzegovina; whereas furthermore, as the Court noted in paragraph 45 of its Order of 8 April 1993, both Yugoslavia and Bosnia-Herzegovina are under a clear obligation to do all in their power to prevent the commission of any acts of genocide, and by paragraph 52 B of that Order the Court indicated that both Bosnia-Herzegovina and Yugoslavia should not take any action and should ensure that no action is taken which might aggravate or extend the existing dispute over the prevention or punishment of the crime of genocide, or render it more difficult of solution; whereas the Court does not find that the circumstances, as they now present themselves to the Court, are such as to require a more specific indication of measures addressed to Bosnia-Herzegovina so as to recall to it both its undoubted obligations under the Genocide Convention, and the need to refrain from action of the kind contemplated by paragraph 52 B of the Court's Order of 8 April 1993;

**

47. 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;

48. 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 and to determine whether those circumstances require the indication of further provisional measures to be taken by the Parties for the protection of rights under the Genocide Convention; whereas however the Court 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;

49. Whereas in paragraph 45 of its Order of 8 April 1993 the Court concluded that there was a grave risk of acts of genocide being committed and that Yugoslavia and Bosnia-Herzegovina, whether or not any such acts in the past may be legally imputable to them, were under a clear obligation to do all in their power to prevent the commission of any such acts in the future;

50. Whereas Article I of the Genocide Convention, quoted by the Court in the same paragraph of its Order of 8 April 1993, 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"; [p 348]

whereas all parties to the Convention have thus undertaken "to prevent and to punish" the crime of genocide;

51. Whereas, as the Court recorded in its Order of 8 April 1993, 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";

52. Whereas, since the Order of 8 April 1993 was made, and despite that Order, and despite many resolutions of the Security Council of the United Nations, great suffering and loss of life has been sustained by the population of Bosnia-Herzegovina in circumstances which shock the conscience of mankind and flagrantly conflict with moral law and the spirit and aims of the United Nations;

53. Whereas, since the Order of 8 April 1993 was made, the grave risk which the Court then apprehended of action being taken which may aggravate or extend the existing dispute over the prevention and punishment of the crime of genocide, or render it more difficult of solution, has been deepened by the persistence of conflicts on the territory of Bosnia-Herzegovina and the commission of heinous acts in the course of those conflicts;

54. Whereas the Security Council of the United Nations in resolution 819 (1993) of 16 April 1993 took note of the Court's Order of 8 April 1993 in which the Court indicated that the Federal Republic of Yugoslavia (Serbia and Montenegro) should take all measures within its power to prevent the commission of the crime of genocide, and whereas the Security Council in that resolution reaffirmed its condemnation of all violations of international humanitarian law, in particular the practice of "ethnic cleansing";

55. Whereas the Security Council of the United Nations in resolution 859 (1993) of 24 August 1993 which, inter alia, affirmed the continuing membership of Bosnia-Herzegovina in the United Nations, reaffirmed the principle of the unacceptability of the acquisition of territory by force and recalled that of individual responsibility for the perpetration of war crimes and other violations of international humanitarian law;

56. Whereas the Security Council of the United Nations, by resolutions 808 (1993) of 22 February 1993 and 827 (1993) of 25 May 1993, has established an international tribunal for the prosecution of persons responsible for serious violations of humanitarian law committed in the territory of the former Yugoslavia;

57. Whereas the Court, while taking into account, inter alia, the replies of the two Parties to a question put to them at the hearings as to what steps had been taken by them "to ensure compliance with the Court's Order of 8 April 1993", is not satisfied that all that might have been done has been [p 349] done to prevent commission of the crime of genocide in the territory of Bosnia-Herzegovina, and to ensure that no action is taken which may aggravate or extend the existing dispute or render it more difficult of solution;

58. Whereas, as the Court has previously found,

"When the Court finds that the situation requires that measures of this kind should be taken, it is incumbent on each party to take the Court's indication seriously into account ..."(Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, I.C.J. Reports 1986, p. 144, para. 289);

whereas this is particularly so in such a situation as now exists in Bosnia-Herzegovina where no reparation could efface the results of conduct which the Court may rule to have been contrary to international law;

59. Whereas the present perilous situation demands, not an indication of provisional measures additional to those indicated by the Court's Order of 8 April 1993, set out in paragraph 37 above, but immediate and effective implementation of those measures;

60. 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;

**

61. For these reasons,

The Court,

(1) By 13 votes to 2,

Reaffirms the provisional measure indicated in paragraph 52 A (1) of the Order made by the Court on 8 April 1993, which should be immediately and effectively implemented;

In favour: President Sir Robert Jennings; Vice-President Oda; Judges Schwebel, Bedjaoui, Ni, Evensen, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ajibola, Herczegh; Judge ad hoc Lauterpacht;

Against: Judge Tarassov; Judge ad hoc Kreca;

(2) By 13 votes to 2,

Reaffirms the provisional measure indicated in paragraph 52 A (2) of the Order made by the Court on 8 April 1993, which should be immediately and effectively implemented; [p 350]

In favour: President Sir Robert Jennings; Vice-President Oda; Judges Schwebel, Bedjaoui, Ni, Evensen, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ajibola, Herczegh; Judge ad hoc Lauterpacht;

Against: Judge Tarassov; Judge ad hoc Kreca;

(3) By 14 votes to 1,

Reaffirms the provisional measure indicated in paragraph 52 B of the Order made by the Court on 8 April 1993, which should be immediately and effectively implemented.

In favour: President Sir Robert Jennings; Vice-President Oda; Judges Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ajibola, Herczegh; Judge ad hoc Lauterpacht;

Against: Judge ad hoc Kreca.



Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this thirteenth day of September, 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 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.



Vice-President Oda appends a declaration to the Order of the Court.

Judges Shahabuddeen, Weeramantry, Ajibola and Judge ad hoc Lauterpacht append separate opinions to the Order of the Court.

Judge Tarassov and Judge ad hoc Kreca append dissenting opinions to the Order of the Court.

(Initialled) R.Y.J.

(Initialled) E.V.O. [p 351]


Declaration of Vice-President Oda

The Court should in my view have responded specifically in the operative paragraphs to the request filed by Yugoslavia on 10 August 1993 for the indication of provisional measures. While the Court responds to the second request of Bosnia-Herzegovina by reaffirming the provisional measures indicated in its Order of 8 April 1993, it does not, in the operative part of this Order, take any position on the request of Yugoslavia.

Yugoslavia has asked the Court to indicate the following provisional measure:

"The Government of the so-called Republic of Bosnia and Herzegovina should immediately, in pursuance of its obligation under 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 against the Serb ethnic group."

These words reflect almost exactly the measure indicated by the Court on 8 April 1993 in paragraph 52 A (1), which was addressed to Yugoslavia. Yugoslavia has now asked the Court to indicate a similar measure, to be addressed to Bosnia-Herzegovina. Yugoslavia filed its request on the basis of the evidence contained in the reports of Yugoslavia to the Commission of Experts established pursuant to Security Council resolution 780 (1992) of 6 October 1992 and in the "Memorandum on War Crimes and Crimes of Genocide in Eastern Bosnia (Communes of Bratunac, Skelani and Srebrenica) Committed against the Serbian Population from April 1992 to April 1993" (which is included in United Nations document A/48/77; S/25835, annexed to Yugoslavia's request for the indication of provisional measures).

In its Order the Court has pointed out that

"the measure requested by Yugoslavia would be appropriate to protect rights under the Genocide Convention, which are accordingly within the prima facie jurisdiction of the Court; ... on the evidence and information available to it, the Court must also recognize the existence of some risk to the persons whose protection Yugoslavia seeks; ... however the question for the Court is whether the circumstances are such as to 'require' the indication of provisional measures, in accordance with Article 41 of the Statute" (para. 45). [p 352]

And the Court goes on to say that it:

"does not find that the circumstances, as they now present themselves to the Court, are such as to require a more specific indication of measures addressed to Bosnia-Herzegovina so as to recall to it both its undoubted obligations under the Genocide Convention, and the need to refrain from action of the kind contemplated by paragraph 52 B of the Court's Order of 8 April 1993" (para. 46).

I do not find that these considerations provide grounds for the Court to avoid a direct response to the Yugoslav request, as paragraph 52 B of the Court's Order of 8 April 1993, though addressed also to Bosnia-Herzegovina, concerned only the need for the Parties to refrain from action tending to the aggravation or extension of the existing dispute.

(Signed) Shigeru Oda.

[p 353]

Separate opinion of judge Shahabuddeen

I agree with the Court in reaffirming, and in effect emphasizing, the continued applicability of its previous Order to the deteriorating human situation in Bosnia-Herzegovina. In support, I give below my reasoning on some of the issues which, in my view, merit the exercise of the right to speak separately under Article 57 of the Statute of the Court.

I. BOSNIA-HERZEGOVINA'S REQUEST FOR PROVISIONAL MEASURES

Forum Prorogatum

As to paragraph 34 of the Order, the consensual basis of the Court's jurisdiction requires no emphasis. Forum prorogatum jurisdiction is no exception. The argument that Yugoslavia accepted the jurisdiction of the Court beyond the scope of Article IX of the Genocide Convention of 1949 is based on the fact that, in its written observations of 1 April 1993 on Bosnia-Herzegovina's first request for provisional measures, Yugoslavia stated that it "recommends that the Court ... order the application of" certain other provisional measures. But, in paragraph 5 of the same written observations, Yugoslavia asked the Court to reject the last five of the six provisional measures then sought by Bosnia-Herzegovina

"taking into account that these measures are outside Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide and that therefore the Court is not competent to decide upon them."

Also, in paragraph 6 of that document Yugoslavia stated

"that it does not accept the competence of the Court in any request of the Applicant which is outside the Convention on the Prevention and Punishment of the Crime of Genocide. This is without prejudice to the final decision of the Yugoslav Government to be party to the dispute submitted by the 'Republic of Bosnia and Herzegovina'." [p 354]

Again, at the hearing of Bosnia-Herzegovina's first request for provisional measures, on 2 April 1993, the acting Co-Agent for Yugoslavia stated:

"The Federal Republic of Yugoslavia does not consent to any extension of the jurisdiction of the Court beyond what is strictly stipulated in the [Genocide] Convention itself." (Professor Shabtai Rosenne, CR 93/13, p. 16.)

Having regard to these clear statements on the basic jurisdictional position taken by Yugoslavia, the question which arises is one of construction of Yugoslavia's own request for provisional measures of 1 April 1993 in so far as jurisdiction is concerned. In the light of those statements, two of which were set out in the same document requesting provisional measures, it is difficult to interpret the request as intended by Yugoslavia as an offer to expand the jurisdiction of the Court; it seems more reasonable to understand the request as intended to be considered only on the basis that the provisional measures which it sought were considered by Yugoslavia (whether rightly or wrongly) to be incidentally pertinent to genocide proceedings brought under Article IX of the Genocide Convention, assuming that the Convention was in force between the Parties. Since the question is one of consent, it is Yugoslavia's intention which matters, not the correctness of its view as to the relevance of its request to the subject of genocide. It seems unlikely that the measures which it sought were understood by Bosnia-Herzegovina as intended by Yugoslavia to raise issues outside of the scope of Article IX of the Genocide Convention. Bosnia-Herzegovina did not then seek to raise a question of forum prorogatum on the basis of the measures so sought by Yugoslavia; on the view which it now advances, it should have been in its interest to do so in order to repel Yugoslavia's persistent objection that jurisdiction did not exist outside of that conferred by that provision.

The question in the Anglo-Iranian Oil Co. case really turned on the intention with which Iran had filed its objections, other than its preliminary objection to jurisdiction. Its intention was that they were to be considered only if its basic objection to jurisdiction failed; accordingly, they could not be interpreted as implying acceptance of the very thing which was being consistently objected to (I.C.J. Reports 1952, pp. 113-114). Yugoslavia's objection to jurisdiction outside of Article IX of the Geneva Convention is its basic position. That objection, being clear and consistently pursued, could not reasonably be supposed to be intended by Yugoslavia to be neutralized by something else contained in the very document advancing the objection - at any rate, not in the absence of language manifesting so contradictory an intention with unequivocal [p 355] clarity. Thus, from the point of view of intention, I am not persuaded that Yugoslavia's request for provisional measures can be treated differently from Iran's objections.

In the Corfu Channel case, Preliminary Objection, the Court noted that Albania had by letter accepted "in precise terms 'the jurisdiction of the Court for this case'" (I.C.J. Reports 1947-1948, p. 27). This being so, the Court was able to regard the letter as constituting a "voluntary and indisputable acceptance of the Court's jurisdiction" (ibid .; emphasis added). The need for clarity can scarcely be less imperative where, as in this case, there is no statement accepting jurisdiction "in precise terms". Yugoslavia's conduct cannot, in my opinion, be characterized as implying an indisputable acceptance of the Court's jurisdiction in excess of that conferred by Article IX of the Genocide Convention of 1948. The overriding requirement of clear proof of consent sufficiently explains Fitzmaurice's conclusion that "[i]n actual fact the Court seems to have adopted an attitude of considerable caution and conservatism on the subject of prorogated jurisdiction", useful though the concept is (Sir Gerald Fitzmaurice, The Law and Procedure of the International Court, 1986, Vol. II, p. 511).

Interim Judgment

In paragraph 19 of its written observations of 9 August 1993 on Bosnia-Herzegovina's second request for provisional measures, Yugoslavia pleaded:

"Some of the provisional measures, like the one requested under No. 3 [relating to annexation or incorporation], have the character of a judgment. They are intended to legally resolve the subject-matter of the dispute. Disputes are settled with judgments, not by provisional measures. (Factory at Chorz¢w, P.C.I.J, Series A, No. 12, p. 10.)"

On its own terms, that submission was not addressed to all of the measures sought by Bosnia-Herzegovina. Assuming, however, that Yugoslavia is in fact invoking the interim judgment doctrine of the Chorz ¢w Factory case in relation to Bosnia-Herzegovina's request for provisional measures to restrain genocide, I should think that the limits of the doctrine were clearly demonstrated if its effect were to put the Court in the position of a powerless bystander at the possible commission of that offence. The Court's case-law shows that that cannot be the true result of the doctrine (see Nuclear Tests (Australia v. France), Interim Protection, I.C.J. Reports 1973, p. 99; Nuclear Tests (New Zealand v. France), Interim Protection, I.C.J. Reports 1973, p. 135; and United States Diplomatic and Consular Staff in Tehran, Provisional Measures, I.C.J. Reports 1979, p. 16, para. 28). [p 356] In domestic systems the proposition that an interlocutory injunction can in no circumstances cover the same ground as the main remedy does not always prevail1.FN1

---------------------------------------------------------------------------------------------------------------------
FN1 See, in English law, Halsbury's Laws of England, 4th ed, pp. 537-538, para. 953, and Woodford v. Smith, [1970] 1 All ER 1091 n. and [1970] I WLR 806.
---------------------------------------------------------------------------------------------------------------------

The idea of a provisional measure of protection which may have the same effect as the main remedy is conceptually distinct from the idea of an interim judgment. The object of the former is the protection of the right in issue pending the final adjudication of the claim; the object of the latter is to give to the plaintiff interim relief by way of advance payment on account of a liability which is admitted or reasonably clear but not yet precisely quantified. Provisions for interim payment exist in some legal systemsFN2. By contrast, as the Court pointed out in the Factory at Chorz¢w case, a request which is really for relief by way of interim judgment is "not covered by the terms of the provisions of the Statute and Rules ..." of the Court (Factory at Chorz¢w, P.C.I.J., Series A, No. 12, p. 10).

---------------------------------------------------------------------------------------------------------------------
FN2 See, for example, the position in English law as set out in The Supreme Court Practice 1993, London, 1992, Vol. 1, Order 29/9 ff.
---------------------------------------------------------------------------------------------------------------------

In that case, Germany did use some of the language associated with provisional measures. It is clear, however, that it was really seeking an interim judgment in the sense mentioned above. This was illustrated by its opening premise "that the principle of compensation is recognized and that only the maximum sum to be paid by the Polish Government is still in doubt ..." (ibid., p. 6). That was the essential basis on which it was asking for an Order requiring Poland to "pay to the German Government, as a provisional measure, the sum of thirty millions of Reichsmarks within one month from the date of the Order sought" (ibid., p. 10). The request was rightly refused, the Court simply having no such power. Here, provided that a measure is truly conservatory of the rights in contest pending judgment, the possibility that it may produce the same effect as the main relief sought (though a discretionary consideration) does not put it out of the power conferred on the Court by Article 41 of the Statute to indicate provisional measures (see Dr. E. Dumbauld, Interim Measures of Protection in International Controversies, 1932, pp. 163-164, and the general discussion in Jerzy Sztucki, Interim Measures in the Hague Court: An Attempt at a Scrutiny, 1983, pp. 93 ff.). [p 357]

Media Material

Some criticism was offered by Yugoslavia in so far as the means of proof tendered by Bosnia-Herzegovina included press, radio and television statements and reports. Are these admissible and, if so, how far?

The Court is of course "bound by the relevant provisions of its Statute and its Rules relating to the system of evidence" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1986, p. 39, para. 59). But those provisions have to do with time-limits and other matters designed "to guarantee the sound administration of justice, while respecting the equality of the parties". They do not bear on the categories of material admissible as evidence, or on the principles by which evidence is assessed by the Court. As regards these, there are no technical rules, such as those which exist in most domestic systems (South West Africa, Second Phase, I.C.J. Reports 1966, p. 430, Judge Jessup, dissenting opinion; and Barcelona Traction, Light and Power Company, Limited, Second Phase, I.C.J. Reports 1970, p. 98, para. 58, Judge Sir Gerald Fitzmaurice, separate opinion, and ibid., p. 215, para. 97, Judge Jessup, separate opinion). Referring to the common law "best evidence" rule, Judge Sir Gerald Fitzmaurice pointedly observed that "[i]nternational tribunals are not tied by such firm rules ..., many of which are not appropriate to litigation between governments" (ibid., p. 98, para. 58).

In United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), the Court said:

"The essential facts of the present case are, for the most part, matters of public knowledge which have received extensive coverage in the world press and in radio and television broadcasts from Iran and other countries." (I.C.J. Reports 1980, p. 9, para. 12.)

The Court also noted that it had been stated on behalf of the United States of America that the latter "has had to rely on newspaper, radio and television reports for a number of the facts stated in the Memorial ..." (I.C.J. Reports 1980, p. 10, para. 12; and see, I.C.J. Pleadings, United States Diplomatic and Consular Staff in Tehran, pp. 192 ff. and pp. 329 ff.).

The Court clearly considered that material. The material had been communicated to the Government of Iran "without having evoked from that Government any denial or questioning of the facts alleged ..." (I.C.J. Re ports 1980, p. 10, para. 13). But it seems to me that the absence of denial by Iran of the facts alleged went to weight, and not to admissibility. [p 358] True, as the Court later said, even where such material meets high standards of objectivity, the Court regards it

"not as evidence capable of proving facts, but as material which can nevertheless contribute, in some circumstances, to corroborating the existence of a fact, i.e., as illustrative material additional to other sources of evidence" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1986, p. 40, para. 62; and ibid., Judge Schwebel, dissenting opinion, at p. 324).

That limited use does not make the material any the less admissible, but it is a consideration which should be carefully noted.

If media material is admissible at the merits stage, as in the Unite d States Diplomatic Staff case, it should be no less admissible at the provisional measures stage, as in this case. In fact, media material was also presented to the Court at the provisional measures stage in that case (I.C.J. Pleadings, United States Diplomatic and Consular Staff in Tehran, p. 45, and p. 67, Appendix C, and I.C.J. Reports 1979, p. 10, para. 7). It is well known that in some domestic systems the rules of evidence are relaxed in proceedings for interlocutory injunctions so as to let in hearsay material not otherwise admissibleFN1.

---------------------------------------------------------------------------------------------------------------------
FN1Thus, in English law, evidence as to information and belief, if the sources and grounds are stated, is receivable on interlocutory applications. See The Supreme Court Practice 1993, Vol. 1, Order 29/1/11 and Order 41/5/1-2.
---------------------------------------------------------------------------------------------------------------------

In this case, the need for reliance on media material is clear. The Co-Agent for the Applicant, Professor Boyle, spoke more than once of difficulties in communicating with Sarajevo; no reason appeared to doubt those assertions. Even Yugoslavia presented certain statements in the form of press reports (see Yugoslavia's written observations, 9 August 1993, Annexes I, IV and V).

In my opinion, subject to questions of weight and to the limitation referred to above, the media material presented by Bosnia-Herzegovina is admissible. However, because of the legal considerations explained in the Order, the reaction of the Court to its request can go no further than therein set out. [p 359]

II. YUGOSLAVIA'S REQUEST FOR PROVISIONAL MEASURES

The extent of permissible use of the evidence

A major initial question, if a somewhat delicate one, concerns the extent to which the Court can take account of the supporting evidence in judging whether the circumstances require an indication of the measures sought. The problem here is that, while it is reasonably clear from previous cases that the Court does make use of the evidence, it is less clear in what way or to what extent it does so. True, the Court does not at this stage make definitive findings of fact, but beyond this there is little that can be said with assurance. If it does not make definitive findings on the evidence, does it make provisional ones? The lack of elucidation is, I think, attributable to some apprehension that any use made by the Court of the evidence might lead to unwarranted inferences of prejudgment. And yet the evidence is presented by the Parties to be used by the Court and is used by it. It seems to me that apprehensions of unwarranted inferences of prejudgment are less substantial than the danger deriving from uncertainty as to the way in which, or the extent to which, the Court makes use of the material.

The settled principle that the Court cannot at this stage make definitive findings on the merits is recalled in paragraph 49 of the Order. To say that the Court can make such findings, subject to subsequent alteration or amendment in the final judgment, is in effect to put the Court at the merits stage in the position of a court of appeal, sitting on review of its own previous judgment. The obvious unacceptability of that position does not, however, have the consequence that the Court must at this stage mechanically indicate measures so long as some supporting material is before it and regardless of its evidential quality. A court which does that may claim the virtue of avoiding all risk of prejudgment, but it is a virtue bought at the price of placing both parties on an artificial basis of evidential equality in circumstances in which the evidence on one side may be patently weak. A preliminary appraisal of the quality of the evidence avoids payment of that price; in so far as it may be thought to involve some risk of prejudgment, the craft of the judge accustoms him to make such an appraisal for the limited purposes of interlocutory proceedings without incurring a risk of prejudgment of the merits.

Provisional measures (whether legally binding or not) are expected to be implemented and can be immediately productive of important prac-[p 360]tical consequences. They are not indicated by the Court unthinkingly. Under Article 41, paragraph 1, of its Statute, the Court has power to indicate provisional measures "if it considers that circumstances so require". The Court cannot know what are the circumstances without having to consider the evidence produced in proof of the circumstances. This the Court must do if Judge Anzilotti was correct in speaking of "the possibility of the right claimed ... and the possibility of the danger to which that right was exposed" (Polish Agrarian Reform and German Minority, P.C.I.J., Series A/B, No. 58, p. 181). If that is the test, as I respectfully think it is, then the Court is called upon at this stage to make a decision as to whether there is on the evidence a possibility of the rights claimed by Yugoslavia and a possibility of danger to those rights; it cannot do that without considering the quality of the material before it.

This conclusion accords with the position taken by Yugoslavia in its written observations of 1 April 1993 on Bosnia-Herzegovina's first request for provisional measures, in paragraph 5 of which it submitted that "[t]he assertions on the basis of which the Court is requested to grant these provisional measures are not true, i.e. they are inconsistent with facts". That submission necessarily implied that the Court, even at the interlocutory stage, can competently consider questions of credibility.

As to the standard applicable, some help may be had from Dumbauld, who wrote:

"In view of the need for rapidity and the provisional nature of the order, absolutely convincing proof, such as would be necessary in forming the Court's opinion on final judgment, is not necessary.

The Court's decision must be based on the evidence before it, however, and not upon mere speculation. Substantial credibility rather than formally impregnable accuracy should be sought." (Dr. E. Dumbauld, Interim Measures of Protection in International Controversies, 1932, p. 161.)

Thus, although it is not necessary to produce "absolutely convincing proof", "substantial credibility" is required. That, I would think, is the test to be applied in making an evaluation of the quality of the material before the Court. To the making of such an evaluation I accordingly pass.

The Methods by Which the Yugoslavian Material Has Been Prepared

Each Party disclaims responsibility for genocide and accuses the other of it. So, from this point of view, there is a certain symmetry in positions. [p 361] But the symmetry is broken by an important difference concerning the position taken by each side in relation to the conflict. Bosnia-Herzegovina is of course involved in the conflict; Yugoslavia asserts that it is not. It states that there is a civil war in Bosnia-Herzegovina, that Yugoslavia

"is no belligerent party, that it has no soldiers in the territory of the 'Republic of Bosnia and Herzegovina', that it supports with arms no side in the conflict and that it does not abet in whatever way the commission of crimes cited in the Application [made by Bosnia-Herzegovina on 20 March 1993]" (letter from the Federal Ministry for Foreign Affairs of the Federal Republic of Yugoslavia to the Registrar, 1 April 1993; see also statement by Mr. Zivkovic in CR 93/13, p. 7, 2 April 1993).

On the contrary, says Yugoslavia, it has offered refuge to a large number of Muslims from Bosnia-Herzegovina and has extended humanitarian help to Bosnia-Herzegovina in several ways (written observations of Yugoslavia on Bosnia-Herzegovina's second request for provisional measures, 9 August 1993, para. 11).

In effect, Yugoslavia's own position is that it has adopted an even-handed approach of non-involvement in the military situation in Bosnia-Herzegovina. Whether that is factually so or not is not now the point; the point now is that that is the position adopted by Yugoslavia. The adoption of a position of military non-involvement is relevant to the way the Court approaches the allegations made by Yugoslavia; it has a bearing on the quality of the allegations.

The main elements of the case presented by Yugoslavia were assembled by the "Yugoslav State Commission for War Crimes and Genocide". The case so assembled by the Yugoslav Commission alleges that genocide is being committed, but that it is all being done by Muslims against Serbs; no hint is given of genocide being committed by Serbs against Muslims. That is not surprising seeing that, in the first instance, the mandate of the Commission did not extend so far, its report being entitled "Memorandum on War Crimes and Crimes of Genocide in Eastern Bosnia (Communes of Bratunac, Skelani and Srebrenica) Committed against the Serbian Population from April 1992 to April 1993". But page 79 of the Memorandum states:

"A good part of the documentation on the killings, organized ambushes, massacred persons, destroyed property, maltreatment in prisons, the looting and the burning is in the possession of the competent authorities: police stations, health centres and other communal establishments, as well as the command and units of the Army of the Republic of Srpska." [p 362]

Professor Boyle correctly made the point that not only does this show that the Yugoslav State Commission for War Crimes and Genocide relied on documentation provided by "the command and units of the Army of the Republic of Srpska", but that it also suggests the existence of close relations between the Yugoslav authorities and the military authorities of the Bosnian Serbs. It would be correct for the Court to refrain at this stage from acting on material of that kind, not simply because it is partisan, as it is, but because it is partisan material presented by a Party which asserts a position of military non-partisanship.

Yugoslavia's Assertion of Non-Involvement in the

Military Operations of Bosnian Serbs

It is necessary now to return to Yugoslavia's assertion of non-involvement in, or non-support for, Serbian military activity in Bosnia. A statement made on behalf of the Government of Serbia (part of Yugoslavia) after the Court's first Order was issued shows that that Government, at great cost to itself, has in fact been "unreservedly and generously helping" Serbs in what it regards as "a just battle for freedom and the equality of the Serbian people [which] is being conducted in the Serb Republic", i.e., in the territory of Bosnia-Herzegovina (see the Communiqué issued after the Session of the Government of the Republic of Serbia, set out in Bosnia-Herzegovina's second request of 27 July 1993, at pp. 43-44). A statement issued on behalf of the Federal Government of Yugoslavia is to similar effect (Federal Government Communiqué, set out in Bosnia-Herzegovina's second request of 27 July 1993, at pp. 44-45). It was in evidence also that, in a statement made on 11 May 1993, President Slobodan Milosevic of Serbia said:

"In the past two years, the Republic of Serbia - by assisting Serbs outside Serbia - has forced its economy to make massive efforts and its citizens to make substantial sacrifices. These efforts and these sacrifices are now reaching the limits of endurance. Most of the assistance was sent to people and fighters in Bosnia-Herzegovina, but a substantial amount of aid was given to the 500,000 refugees in Serbia. At the same time, because of its solidarity with and assistance to the Serbs in Bosnia-Herzegovina, Serbia is subjected to brutal international sanctions. Today there can be no comparison between us and any other country in the world, or very few countries, in terms of the economic and general difficulties we face. Clearly, we were aware we would face these difficulties when deciding to provide assistance to Serbs who were at war. [p 363]

Now conditions for peace in Bosnia have been created. Following a year of war and long-term peace negotiations, the Serbs have gained their freedom and have regained the equality taken from them when the war started. Most of the territory in the former Bosnia-Herzegovina belongs now to Serb provinces. This is a sufficient reason to halt the war, and to remove further misunderstandings through negotiations and by peaceful means.

***

Serbia has lent a great, great deal of assistance to the Serbs in Bosnia. Owing to that assistance they have achieved most of what they wanted." (BBC transcript, as reproduced in the second request by Bosnia-Herzegovina, pp. 47-48.)

From this and other material it is, at this stage, at least arguable that Yugoslavia has in fact been giving military and other forms of assistance to the war effort of the Bosnian Serbs; that this assistance began before and continued uninterrupted by the Court's Order of 8 April 1993; that the object of the assistance was to enable Bosnian Serbs to obtain territory in Bosnia-Herzegovina; and that consequently President Milosevic was accepting responsibility for the "ethnic cleansing" which was central to the methods by which the territory was acquired.

Yugoslavia's assertion of non-involvement in the conflict is open to serious question. That question must in turn cause the Court to hesitate at this stage to act on the material presented by it in support of its allegations of genocide being committed by Bosnia-Herzegovina.

Yugoslavia's Silence on the Question Whether

Bosnian Serbs Have Been Committing Genocide

If, as I consider, the evidence points to Yugoslavia being in fact supportive of the Serbian military effort in Bosnia-Herzegovina, the Court might at this stage reasonably expect Yugoslavia to be in a position to know whether the Serbian authorities in Bosnia-Herzegovina have or have not been committing genocide. Yugoslavia neither affirms nor denies this. It says:

"The FR of Yugoslavia has not directed, supported or influenced anybody to exercise the crime of genocide or any act described by Article III of the Genocide Convention against the Muslim population of Bosnia and Herzegovina or against any other national, ethnical or religious group." (Written observations of Yugoslavia of 9 August 1993, para. 11.)
[p 364]

A pleading position of that kind leaves open the possibility that genocide is being committed by Serbs against Muslims, that Yugoslavia is in a position to know this and does know this, but that Yugoslavia is merely taking the position that such genocide is being committed without its own support. It is, no doubt, permissible to take up such a position at the merits, the issue being one as to Yugoslavia's responsibility. But I should have thought that a less sparing approach was appropriate where Yugoslavia was itself requesting provisional measures for genocide allegedly being committed by Muslims against Serbs. Bosnia-Herzegovina for its part denies that genocide is being committed against Serbs. That is disputed by Yugoslavia, but it is at least a clear statement of position. The point, in the case of Yugoslavia, is not that it denies that genocide is being committed by Serbs, but that it neither admits nor denies it, though in a position to do one or the other. That, in my opinion, is a circumstance to be carefully weighed by the Court when exercising its discretion as to whether it would accede to Yugoslavia's request for provisional measures in favour of Serbs.

Yugoslavia's Request for Provisional Measures Has Been Made

Only because of Bosnia-Herzegovina's Second Request

Then, as to the timeliness of Yugoslavia's allegations. The fact that Yugoslavia's request is made in response to Bosnia-Herzegovina's second request is not necessarily a point against the former. But the question which arises is this: would Yugoslavia's request have been made at all had it not been for Bosnia-Herzegovina's? I cannot feel that it would have been. The basic material on which Yugoslavia relies relates to the period April 1992 to April 1993 and had been collected by the Yugoslav State Commission for War Crimes and Genocide over a period ending in April 1993. Assuming that this material (whether in whole or in part) could not be presented to the Court at the previous hearing, it is difficult to appreciate why it is being presented to the Court only some four months after it was assembled and then only in response to a second request by Bosnia-Herzegovina. If genocide is in fact being committed against Serbs, the need for remedial action always remains, any delay in approaching the Court notwithstanding; but any such delay is, in my view, relevant in appreciating Yugoslavia's own confidence in the quality of the allegations now being advanced by it before a judicial body.

In my opinion, without raising any question of urgency as a juridical element in its own right, one may reasonably take the view that Yugoslavia's request has been made only because of Bosnia-Herzegovina's and [p 365] has not been presented with sufficient timeliness to suggest that the Court would, at this stage, be correct in acting upon the supporting material for the purpose of indicating the provisional measures which Yugoslavia seeks.

Yugoslavia's Attitude to the Court's Order of 8 April 1993

Account has also to be taken of Yugoslavia's disposition to the provisional measures indicated by the Court in its Order of 8 April 1993. It is Bosnia-Herzegovina's complaint that Yugoslavia has at no stage sought to implement these measures. The fact that the Court is not at this point engaged in adjudicating on the merits of the case does not mean that the Court cannot make a definitive finding on the particular question whether the measures indicated by it have been implemented. In my opinion, the evidence warrants a finding of non-implementation against Yugoslavia.

The question of non-implementation naturally leads into the question whether provisional measures are legally binding. The nearest that the Court has come to answering this question was in 1986, when it said:

"When the Court finds that the situation requires that measures of this kind should be taken, it is incumbent on each party to take the Court's indications seriously into account, and not to direct its conduct solely by reference to what it believes to be its rights." (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1986, p. 144, para. 289.)

That statement, and the reference to it in paragraph 60 of today's Order, stopped short, in its careful formulation, of saying that provisional measures are binding. Indeed, it could bear the interpretation that the measures themselves are not binding, a party merely having a duty to take account of the Court's indication of them.

The question, if it remains open, dates back to the founding of the Permanent Court of International Justice (P.C.I.J., Advisory Committee of Jurists, Procès Verbaux of the Proceedings of the Committee, June 16th-July 24th, 1920, p. 735). The main outlines of the argument as to whether provisional measures are recommendatory or legally binding appeared in the 1931 records of the rule-making proceedings of the Court (P.C.I.J., Series D, Second Addendum to No. 2, pp. 181-200). I do not propose to summarize or analyse the conflicting currents of thought running through the considerable literature which has since grown up around the subject. One exchange of opinions may however be mentioned. [p 366]

Adverting in 1935 to the drafting of Article 41, paragraph 1, of the Statute of the Permanent Court of International Justice, Henri Rolin perceptively distinguished the question of enforceability from the question of the binding character of provisional measures, observing:

"le motif allégué pour expliquer l'omission du mot 'ordonne' permet de toucher du doigt la fragilité des considérations qui ont retenu le Comité de Juristes : pas de moyen d'exécution, donc pas d'ordre ! Comme si le même argument n'aurait pas pu être invoqué contre le caractère obligatoire des sentences au fond, comme si dans l'ordre des juridictions nationales aussi le décrètement des mesures provisoires n'appartient pas au judiciaire, le contrôle de leur exécution à l'exécutif !" (Henri A. Rolin, "Force obligatoire des ordonnances de la Cour permanente de Justice internationale en matière de mesures conservatrices", in Mélanges offerts à Ernest Mahaim, 1935, Vol. 2, p. 286).

In 1952, speaking of the terms of Article 41, paragraph 1, of the Statute of the present Court in the light of the Charter, he remarked:

"Ces termes pourraient paraître impliquer un pouvoir de décision et une obligation pour les parties de s'y conformer.

Telle ne paraît pourtant pas être la portée de l'article 94 de la Charte qui n'attribue d'effets obligatoires qu'aux arrêts rendus par la Cour." (Annuaire de l'Institut de droit international, 1954, Vol. 45 I, p. 487.)

For these reasons, he proposed an amendment to Article 41 in order to make it clear that provisional measures were binding (ibid., p. 431).

For his part, Hersch Lauterpacht in the following year observed:

"I am fully in agreement with the suggestion - though not perhaps with the reasoning - of M. Rolin with regard to Article 41 of the Statute relating to provisional measures. Without expressing an opinion on the question whether the indication of provisional measures is merely in the nature of a recommendation I am of the view that if the latter interpretation is correct there is room for an amendment of the Statute in this respect. It is not necessarily inconsistent with the effectiveness of the administration of international justice that the Court should have no power to decree, with binding effect, provisional measures to be taken by the parties. But I believe that it is not part of the function of the Court to recommend measures which the parties are free to accept or to reject." (Ibid., pp. 535-536.)

Thus, on one view, it might well be tolerable that, having regard to the special framework in which it functions, an international court, unlike a municipal court, should not have any power to decree provisional measures with binding effect. What was less acceptable was that it should [p 367] have "power", but "power" merely to recommend measures to the parties which they were free to accept or to reject.

The suggested solution by way of amendment does not, of course, remove the duty of the Court to pronounce meanwhile upon the question of interpretation, in a proper case, as to whether provisional measures are binding. A doubt which may present itself is whether an answer to the questions now before the Court requires a determination of that particular issue of interpretation. The need for a determination of the issue might arise if, for example, the question were whether a party was entitled to reparation for non-implementation by the other party of provisional measures, or to reparation for implementation by it where the main claim against it later fails either for want of jurisdiction or on the merits. But it is not the case of Bosnia-Herzegovina that any breach by Yugoslavia of the provisional measures indicated on 8 April 1993 will expose Yugoslavia to some specific legal penalty or give to Bosnia-Herzegovina some specific legal right relevant to these proceedings.

This doubt may be regarded as somewhat narrowly based; the better view may well be that the question of interpretation does arise. I do not, however, propose to express an opinion on the question because it appears to me that an alternative approach is possible.

The material issue is whether Yugoslavia has in fact implemented the measures as the Court expected it would, whether or not they are legally binding. A distinction may be drawn between the indication of measures and the measures indicated. The question relating to the "indication" is whether it has the effect of a judicial decision which attaches a legal obligation to a party. The question relating to the "measures" is whether they represent a judicial finding as to what needs to be done to preserve the rights in contest. In my opinion, even if the indication is not legally binding, the measures possess the character of a judicial finding as to what was required to preserve those rights pendente lite, that finding having been made after due hearing by the Court sitting as a court of law in exercise of a specific power conferred by law. It follows that any non-implementation, even if not in breach of a legal obligation, represents an inconsistency with that judicial finding.

Now, the Court has no power to penalize such an inconsistency; but, in my view, the inconsistency is something to be taken into account by it in evaluating the quality of the evidence presented by the non-implementing party in support of a request for provisional measures to preserve substantially the same rights which the Court's original Order was in the first instance intended to protect. Unless the Court, which has an undoubted discretion in deciding whether it would grant a request, can take account of a non-implementation in that way, there [p 368] is little point in the provision in Rule 78 of the Rules of Court to the effect that

"[t]he Court may request information from the parties on any matter connected with the implementation of any provisional measures it has indicated" (discussed in Geneviève Guyomar, Commentaire du Règlement de la Cour international de Justice, 1983, pp. 495-6).

This point having been reached, it is useful to consider the following view expressed by Dumbauld:

"When a refusal to furnish information or to carry out provisional measures is put on record, apparently a presumption arises which takes the place of direct evidence in the sense that it legitimates a conclusion derived from the fact in question by reasonable inference." (Dr. E. Dumbauld, Interim Protection in International Controversies, 1932, p. 161; footnotes omitted.)

Yugoslavia, not having implemented the provisional measures indicated by the Court, now seeks provisional measures of its own. I do not go so far as to suggest that the non-implementation necessarily or automatically debars Yugoslavia from making its request (as well it might in a corresponding case in some domestic jurisdictions); but it is, in my view, something which legitimates the conclusion that, in all the circumstances, it would not be correct for the Court, at this stage, to act on the material presented by Yugoslavia in support of the particular measures it requests.

III. CONCLUSION

It is difficult to think of any measures which the Court could both usefully and competently indicate in addition to those already set out in its previous Order. On the other hand, such has been the deterioration in the situation since the making of the previous Order, that the Court could hardly do less than call for the immediate and effective implementation of the provisional measures therein indicated. Judge Sir Hersch Lauterpacht was not thinking of the Court when he said:

"Admittedly, there is as a rule no difficulty encountered by doing nothing or little, but this is hardly a reasonable standard by which to gauge the fulfilment of the task of the supervising authority." (Admissibility of Hearings of Petitioners by the Committee on South West Africa, I.C.J. Reports 1956, p. 53.) [p 369]

The Court is not of course in the position of the supervisory authority there referred to, but that scarcely suffices to denude the remark of relevance to such competence as belongs to the Court. Nor should it; for, to transpose words once used by Judge Read from their peaceful context to the unthinkable inhumanities being unleashed in Bosnia-Herzegovina:

"It takes one bold act to transform the unthinkable into the thinkable, and a second or third to make it a normal course." (Cited in Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, Vol. IV, p. 21.)

(Signed) Mohamed Shahabuddeen [p 370]


Separate opinion of judge Weeramantry

This case focuses attention on the question of the binding nature of provisional measures more sharply and urgently than almost any other in the history of this Court or of the Permanent Court of International Justice. As the Court stresses in its Order delivered today, "the present perilous situation demands ... immediate and effective implementation" of the measures contained in its Order of 8 April 1993 (para. 59). Today's Order also has my full support.

The important question of the binding nature of provisional measures is veiled in some obscurity as both academic and judicial writing speak upon it with an uncertain voice. As this case pre-eminently demonstrates, the matter urgently needs examination for, so long as present uncertainties continue, the Court is hampered in the full discharge of the judicial functions entrusted to it by the United Nations Charter and the Statute of the Court.

The Factual Background

I note preliminarily the concern the Court has expressed regarding the sufferings of the people of Bosnia-Herzegovina which, despite several resolutions of the Security Council, are such as to "shock the conscience of mankind and flagrantly conflict with moral law and the spirit and aims of the United Nations" (para. 52). The Court's apprehensions at the time of the Order of 8 April of an aggravation or extension of the dispute before it, far from being alleviated, have been "deepened by the persistence of conflicts on the territory of Bosnia-Herzegovina and the commission of heinous acts in the course of those conflicts" (para. 53).

This opinion will deal with so much of the factual material placed before it as is pertinent to a consideration of the question of law under discussion and of the urgency of the need for its resolution. This examination becomes necessary in the light of the provision of Article 41 of the Statute of the Court that the Court shall have the power to indicate provisional measures "if it considers that circumstances so require". The examination of facts that follows takes place only within the ambit of that phrase. [p 371]

The ensuing brief statement regarding the facts will show that, given the highest standards of caution demanded for making a provisional assessment for the purpose of interim measures, these standards are satisfied in this case by the material placed before the Court. The essential facts are recounted in the barest outline, so that the question of law addressed in this opinion may be seen in its proper and realistic context. This examination of the facts being of a purely provisional nature, does not involve any definitive findings nor does it affect the decision on the merits that will need to be made at a later stage of this case.

The Applicant has placed before the Court information from a diversity of independent sources in support of its contention that, after the date of the Court's Order of 8 April 1993, there has been a continuing series of acts which constitute a clear violation of that Order. This material can be classified into three groups - accounts and descriptions carried by the international media, statements emanating from neutral and independent observers, and statements issued by the Respondent Government and by the Government of the Republic of Serbia.

For the purpose of the provisional assessment which follows, it is not necessary to take into account the first group of materials. The plethora of reports placed before the Court, which were carried by well known international media, dealt with shelling, destruction of ancient mosques, supplies from Yugoslavia to the Serbs in Bosnia, and murder, rape and torture on an extensive scale. However, since, in a complex international situation such as this, media reports by themselves may be an uncertain guide, they have not been taken into account in this assessment. This approach stems also from the natural caution that needs to be exercised in judicial fact-finding, even though it be of a provisional nature.

In the second category are statements emanating from disinterested sources such as officials of the Office of the United Nations High Commissioner for Refugees (UNHCR), the Chairman of the United States Senate's Committee on European Affairs, Helsinki Watch, an EC mediator, the Director of the United States Bureau of Refugees Program, and various United Nations officials. The acts referred to in these statements, all of them subsequent to the Court's Order of 8 April this year, include the massacre of women and children in a "heinous policy ... nothing short of genocide" (Chairman of United States Senate's Committee on European Affairs, 9.4.93); the shelling of Srebrenica with shells set to explode in mid-air to wreak the greatest havoc on people caught in the open (UNHCR official, 13.4.93); the wounding of large numbers of civilians, resulting in bodies and parts of bodies, some in gruesome condition, being loaded onto ox carts and wheelbarrows after such an attack (Canadian United Nations official, 15.4.93); atrocities committed in Bosnia-Herze-[p 372]govina by Serbian military and paramilitary forces (Second Report of Helsinki Watch, 17.4.93); the shelling of Sarajevo with an intensity such that United Nations officials logged 1,200 shells exploding by mid-morning (United Nations officials in Sarajevo, 4.7.93); the bombing of mosques as a prelude to "ethnic cleansing" campaigns (UNHCR official, 9.5.93); the presence of 1.4 million refugees in Bosnia whose food supplies, already at starvation levels, would be cut in half by the fighting (UNHCR, 1.7.93); the reduction of a town of 6,000 people to 50 people wandering around (UNHCR official, 10.5.93); the killing of 1,400 children and the wounding of 13,000 more (United Nations officials in Sarajevo, 5.7.93); the involvement of the Yugoslav National Army in at least part of the shelling of Srebrenica (Chairman of United States Senate's Committee on European Affairs, 20.4.93); the passage of supplies to the Bosnian Serbs through Belgrade (EC mediator, 19.4.93); assistance to the Bosnian Serbs by helicopter missions flown from Yugoslavia (military specialist at King's College, London, 24.6.93); and the rape of women numbered in the tens of thousands (Helsinki Watch, 8.6.93). The items set out above represent only a portion of the material placed before the Court. Some of these statements are accompanied by circumstantial details, sometimes of a lurid nature, to which it is not necessary for present purposes to refer. Cumulatively, the material in this second category is more than adequate to justify a provisional finding sufficient for the purposes of this application.

The third category of materials consists of statements in official communiqués issued in the period 8-11 May 1993 by the Respondent Government and the Government of the Republic of Serbia. These are contained at pages 43-49 of the second request for the indication of provisional measures, dated 27 July 1993.

Among the statements contained in the first communiqué of the Republic of Serbia are the description of the current conflict in Bosnia-Herzegovina as a "just battle for freedom and the equality of the Serbian people". The Republic states that it has provided aid in "funds, fuel, raw materials, etc." to the Serb Republic in Bosnia at great sacrifice to itself. There is also a statement that the Republic of Serbia has been

"unreservedly and generously helping the Serb Republic in spite of the enormous problems it had to face due to sanctions introduced [p 373] against it by the UN Security Council" (second request by Bosnia, p. 43).

This information must be read with the communiqué issued by the President of the Republic of Serbia, released by the Yugoslav telegraph service on 11 May 1993 and carried by the BBC in its summary of World Broadcasts on 13 May (ibid., p. 46). This asserts that in the past two years the Republic of Serbia has made massive efforts and substantial sacrifices to assist the Serbs outside Serbia. The communiqué continues: "Most of the assistance was sent to people and fighters in Bosnia-Herzegovina." The international sanctions are described as brutal, and solidarity is expressed with the Serbs in Bosnia-Herzegovina. Sufficient reason exists, according to the communiqué, to halt the war as "Most of the territory in the former Bosnia-Herzegovina belongs now to Serb provinces." The communiqué reiterates that the Serbs in Bosnia-Herzegovina have achieved most of what they wanted owing to the "great deal of assistance" they received from the Republic of Serbia.

The communiqué, issued by the Federal Government of Yugoslavia (second request by Bosnia, p. 44), expresses its "indignation and profound concern" that the Republic of Sprska (i.e., of the Serbs in Bosnia) had decided not to accept the Vance-Owen Plan but to leave it to a referendum among the Serb people of Bosnia-Herzegovina. In view of this, the Federal Republic announces that it will reduce its future aid to the Republic of Sprska "exclusively to contingents of food and medicaments".

Such material placed by the Applicant before the Court must naturally cause grave concern regarding the Respondent's compliance with the Court's Order of 8 April. It is not difficult in the light of this material to reach a provisional finding that the conditions of Article 41 are satisfied for the activation of the Court's provisional measures jurisdiction.

By way of contrast to the range and independence of the sources cited by the Applicant in support of its assertions of fact, the assertions of fact by the Respondent lack that basis of wide and impartial support but depend mainly upon a report compiled by the Yugoslav State Commission for War Crimes and Genocide. There can be no doubt regarding the considerable sufferings currently being undergone by the Serbian people in Bosnia-Herzegovina and this must necessarily be of deep concern to the Court. Yet the matter under examination is non-compliance with the Court's Order of 8 April, and there is an insufficiency of independent material sufficient to show such a non-compliance by Bosnia. [p 374]

Is the Order of 8 April 1993 Legally Binding?

Against the background of the foregoing summary of the bases for a provisional finding, this opinion proceeds to consider the legal question of the binding nature of provisional measures. As a learned writer on the subject of interim measures has observed of the inter-war literature on the subject, it presents "the picture of an extremely colourful - not to say confusing - mosaic of opinions"FN1. Such a picture is not in the interests of international justice.

---------------------------------------------------------------------------------------------------------------------
FN1Jerzy Sztucki, Interim Measures in the Hague Court: An Attempt at a Scrutiny, 1983, p. 283.
---------------------------------------------------------------------------------------------------------------------

The problem is not an easy one. On the one hand, there is the lack of an opportunity for a definitive finding of fact and, on the other, the compelling need for a steadying hand to be applied to prevent irreversible damage to a party. These are powerful considerations to be balanced against each other and call for consideration from a variety of perspectives, not the least of which is the importance of achieving the purposes of international justice which the Court was created to fulfil. This is thus a question whose importance transcends the matter presently before the Court, important though it be.

(a) Binding Nature of a Provisional Order as Distinguished from its Enforceability

As the lack of mechanisms for enforceability sometimes clouds discussions of the binding nature of the orders of this Court, a consideration of the binding nature of provisional measures must start with the clear distinction that exists between the question of the legal obligation to comply with an order and the question of its enforcement FN2. The fact that an order cannot be enforced does not in any manner affect its binding nature, for the binding nature of an order is inherent in itself. It imposes a positive obligation recognized by international law. Whether such an order is complied with or not, whether it can be enforced or not, what other sanctions lie behind it - all these are external questions, not affecting the internal question of inherent validity.

---------------------------------------------------------------------------------------------------------------------
FN2See ASILS International Law Journal, Vol. 9 (1985), p. 176; and see Jerome B. Elkind, Interim Protection: A Functional Approach, 1981, p. 157, for an instance of a blurring of these issues even in learned discussion.
---------------------------------------------------------------------------------------------------------------------

In the Anglo-Iranian Oil Co. case, this Court, having ordered interim [p 375] measures, subsequently held it had no jurisdiction on the meritsFN1, but, in the meantime, the United Kingdom, the applicant in the case, took the matter to the Security Council, seeking enforcement under Article 94 of the Charter. This attempt failed and, through a blurring of the distinction here being made, this failure at enforcement became "the focal point for commentary on various aspects of interim measures, and particularly on the question of whether there is a duty of compliance "FN2 The Court, while enjoining the parties, went out of its way to point out that those measures "in any case retain their own authority"FN3. It is to be noted also that decisions of the Security Council as to whether it will enforce an order or not are not determinative of the question whether the order imposes a legal duty FN4

---------------------------------------------------------------------------------------------------------------------
FN1 Anglo-Iranian Oil Co., Interim Protection, I.C.J. Reports 1951, p. 89; and Anglo-Iranian Oil Co., Judgment, I.C.J. Reports 1952, p. 114.
FN2 C. H. Crockett, "The Effects of Interim Measures of Protection in the International Court of Justice", California Western International Law Journal, Vols. 6-7 (1975-1977), p. 350; emphasis added..
FN3 Anglo-Iranian Oil Co., Interim Protection, I.C.J. Reports 1951, p. 94.
FN4 See Crockett, op. cit., p. 376. .
---------------------------------------------------------------------------------------------------------------------

Even in domestic law, the positivistic view that a sanction is essential to its validity has long been left behind. Modern research, both jurisprudential and sociological, has shown the inherent validity of a law to be independent of the existence of a sanction to enforce it. This is doubly so in regard to international law.

Indeed, it scarcely needs mention that in international law the Austinian view that a sanction is necessary to the existence of a rule of law, or of a legal prescription, has always been particularly inappropriate. The treatment of provisional measures as not imposing legal obligations because the Court has no power of enforcement is thus untenable. Viewed in this light, a provisional measure, no differently from a final order, if pronounced by a court according to due forms and processes and within its jurisdiction, is inherently valid and as such carries with it a duty of compliance.

When this Court, duly acting within its authority and jurisdiction, indicates provisional measures, it is in the expectation that those measures will be complied with, in accordance with international law. Their violation must therefore be viewed with great concern. The question of the obligation to comply must at all times be sharply distinguished from the question of enforceability. [p 376]

(b) Binding Nature of Provisional Orders as Resulting from the Inherent Authority of a Judicial Tribunal

The function of a judicial tribunal, once an issue has been brought to it, is to take the necessary steps according to law towards reaching a decision in accordance with the principle of the equality of parties. This presupposes that the issue brought to it, once committed to the court, must as far as possible be preserved in that form, free of interference by unilateral action of a party, until the determination made by the court. It means also that the principle of equality cannot be disturbed by the superior force available to one party, wherewith to impair or interfere with the subject-matter until determination. It is thus inherent in the authority of that tribunal that, ancillary to the power of judgment, it must have power to issue incidental orders to ensure that the subject-matter of the suit is preserved intact until judgment.

Such a power would of course be completely negatived if a party were under no legal obligation to obey such an order and were therefore free to disregard it. In certain cases, as one writer puts it, this could "make a mockery of the jurisdiction on the merits"FN1. The anomaly is even greater where the unilateral action of a party is of such an order as to destroy the subject-matter which is in litigation before the court. Even stronger is the case where such action threatens to destroy or undermine the very existence of a party.

---------------------------------------------------------------------------------------------------------------------
FN1 J. Peter A. Bernhardt, "The Provisional Measures Procedure of the International Court of Justice through U.S. Staff in Tehran: Fiat Iustitia, Pereat Curia?", Virginia Journal of International Law, Vol. 20, No. 3 (1980), p. 303.
---------------------------------------------------------------------------------------------------------------------

To take the view that a court seised of a matter has no power to act in the face of a unilateral threat to the subject-matter by one of the parties before it would appear then to result in the contradictory situation of the court on the one hand having jurisdiction to hear a case and on the other being denied the effective and necessary authority to discharge the task which has thus been validly entrusted to it. To view procedural measures as not binding on the parties is to enable the ground to be cut under the feet not only of the opposite party but also of the Court itself. A reasonable construction, in total context, of the judicial powers entrusted to the court does not seem capable of sustaining such a meaning. The rule under discussion has been described as a "principle of institutional effectiveness"FN2

---------------------------------------------------------------------------------------------------------------------
FN2 V. S. Mani, "Interim Measures of Protection: Article 41 of the ICJ Statute and Article 94 of the UN Charter", Indian Journal of International Law, Vol. 10 (1970), p. 362.
---------------------------------------------------------------------------------------------------------------------
[p 377]
Support for the universality of such a conceptual approach is to be found in Electricity Company of Sofia and Bulgaria. This Order recites:

"Whereas the above quoted provision [Article 41(1)] of the Statute applies the principle universally accepted by international tribunals and likewise laid down in many conventions to which Bulgaria has been a party - to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute." (P.C.I.J., Series A/B, No. 79, p. 199.)

The Court has also expressed concern that its Judgment should not be anticipated by unilateral action of a party. In the Aegean Sea Continental Shelf case, it observed:

"Whereas the power of the Court to indicate interim measures under Article 41 of the Statute presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings and that the Court's judgment should not be anticipated by reason of any initiative regarding the matters in issue before the Court" (I. C.J. Reports 1976, p. 9, para. 25).

Any interpretation of the relevant provisions of the Charter, the Statute or the Rules in a sense that provisional measures do not impose legal obligations on the party at whom they are directed thus does not accord with the structural framework of judicial power.

Conceptual reasons such as this persuaded Hambro, one of the early Registrars of the this Court, to the view that the power to act by way of provisional measures is a part of judicial power already existing in principle, apart from specific provisions to that effect. In his words:

"The Court in exercising its authority under Article 41 does only in effect give life and blood to a rule that already exists in principle."FN1

------------------------------------------------------------------------------------------------------------
FN1 Edvard Hambro, "The Binding Character of the Provisional Measures of Protection Indicated by the International Court of Justice", in Rechtsfra gen der Internationalen Organisation, Festschrift für Hans Wehberg Zu Seinem 70. Geburtstag, 1956, p. 167.
------------------------------------------------------------------------------------------------------------

The same author argues that, under general principles of international law, all States parties to an international dispute sub judice are under an absolute obligation to abstain from all acts that would nullify the result of the final judgment or aggravate or extend the disputeFN2.

---------------------------------------------------------------------------------------------------------------------
FN2Ibid., p. 168.
---------------------------------------------------------------------------------------------------------------------
[p 378]

Hence, Hambro reaches the conclusion that:

"it would not be in conformity with the august character of the Court as an 'organ of international law' and as the 'principal judicial organ of the United Nations' ... to make any decision that the parties were free to respect or to ignore according to their own pleasure" FN1
------------------------------------------------------------------------------------------------------------
FN1Ibid., pp. 165-167.
------------------------------------------------------------------------------------------------------------

This argument is taken yet further by other scholars who argue that the binding nature of interlocutory injunctions and similar measures is a rule universally recognized and as such may even be considered to be a "general principle of law recognized by civilized nations" under Article 38 (1) (c) of the Court's StatuteFN2. It is of interest that some influential early writers on this topic shared this view. Thus DumbauldFN3 and NiemeyerFN4 saw the duty to observe interim provisional measures as existing independently of the Statute and as therefore lying upon the party in question even if the Statute had contained no such provisions dealing with this matter.

---------------------------------------------------------------------------------------------------------------------
FN2See, for example, Elkind, op. cit., p. 162. Elkind, indeed, makes this proposition the central theme of his treatise on the subject - see Chapter 2 of Elkind's work in which he cites Anglo-American, Roman, Soviet and Hindu law in support of this proposition.
FN3Interim Measures of Protection in International Controversies, 1932, pp. 173-177.
FN4Einstweilige Verfügungen des Weltgerichtshofs, ihr Wesen und ihre Grenzen, 1932, pp. 15-16.
---------------------------------------------------------------------------------------------------------------------

Niemeyer describes it as a basic normative principle (Norm-Grundsatz ) that:

"from the moment that, and as long as, a dispute is submitted to judicial decision and one is awaited, the parties to the dispute are under an obligation to refrain from any act or omission the specific factual characteristics of which would render the normative decision superfluous or impossible" (translation).FN5

------------------------------------------------------------------------------------------------------------
FN5"Sobald und solange ein Streit einer richterlichen Entscheidung unterworfen und eine solche zu erwarten ist, haben sich die streitenden Parteien jeder Handlung und jeder Unterlassung zu enthalten, deren Faktizität die normative Entscheidung überflüssig oder unmöglich machen könnte." (Niemeyer, op. cit., p. 16.)
------------------------------------------------------------------------------------------------------------

Account must, however, be taken of the fact that a number of eminent writers, including A. Hammarskjöld, another early Registrar, have expressed a strongly contrary viewFN6. Among the factors weighing with them are their stress upon the word "indicate", the lack of enforceability and the location of Article 41 in the Chapter of the Statute dealing with [p 379] Procedure and such matters as the language of the Court - thus suggesting that it was not of importance in a substantive sense.

---------------------------------------------------------------------------------------------------------------------
FN6See A. Hammarskjöld, "Quelques aspects de la question des mesures conservatoires en droit international positif", in Zeitschrift für auslän disches Öffentliches Recht Und Völkerrecht, Band V (1935), p. 5.
---------------------------------------------------------------------------------------------------------------------

However, such considerations, each of which may no doubt be separately answeredFN1, seem to be outweighed by the conceptual factors already outlined and the linguistic and other considerations which follow.

---------------------------------------------------------------------------------------------------------------------
FN1In relation to the argument that the positioning of Article 41 in the procedural portion of the Statute in some way weakens its power, Professor Greig points out that:

"it could even more strongly be argued that Article 41 is placed under the heading procedure because the governing principle is not to be found in Chapter II, but as part of the Court's inherent incidental jurisdiction. Article 41 is, therefore, as set out in the Permanent Court's judgment in the Electricity Company case, an expression of that principle and the means of giving effect to it." (D. W. Greig, "The Balancing of Interests and the Granting of Interim Protection by the International Court", Australian Year Book of International Law, Vol. 11 (1991), p. 131.)
---------------------------------------------------------------------------------------------------------------------


The importance of the conceptual considerations discussed above becomes apparent when, from a practical standpoint, one looks at the gravity of causes for which the provisional measures jurisdiction of the Court is used - prevention of irreparable prejudice or injury; of action in a manner so as to render the final judgment nugatory; of destruction of the subject-matter; and of aggravation of the dispute. The gravity of each of these reasons reinforces the view that the Court's power, once exercised, cannot still leave the parties free to act as though unrestrained.

The view that provisional orders are part of the inherent authority of a judicial tribunal is thus one which is sustainable on general principle, on practical necessity, and on the basis of a not inconsiderable body of authority. Principles that may be invoked in support of such a view include the principle of equality of parties, the principle of effectiveness, the principle of non-anticipation by unilateral action of the decision of the Court, and also the wide and universal recognition of the enjoining powers of courts as an inherent part of their jurisdiction.

(c) Binding nature of provisional measures as resulting from the terminology of the Charter, the Statute and the Rules of Court

The language of Article 41 of the Statute uses the word "indicate" rather than "order" in relation to provisional measures, thus opening up discussion as to whether it is less binding in its nature than other decisions. [p 380]

It is useful to examine this question from the standpoint of the other relevant terminology which appears in the Statute and the Rules of Court. There are several avenues along which this linguistic examination can be approached.

(i) The word "indicate"

The original draft of Article 41, in French, prepared by Mr. Raoul Fernandes, used the word "ordonner" FN1which too appeared as "order" in the English translation. Mr. Fernandes' suggestion that such order should be supported by effective penalties did not meet with the approval of other members of the Advisory Committee such as Elihu Root, de Lapradelle and Lord Phillimore, and a new draft was submitted wherein the words "pourra ordonner" were replaced by "pouvoir d'indiquer" with an English translation reading "power to suggest". At the Fifth Meeting of the Sub-committee, Mr. Huber of Switzerland insisted on a stronger term than "suggest" and the word was replaced by "indicate"FN2

---------------------------------------------------------------------------------------------------------------------
FN1 P.C.I.J., Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Committee, June 16th-July 24th, 1920, 28th meeting, Annex No. 3, p. 609.
FN2 Documents of the 5th Meeting of the Third Committee, Annex 16, p. 172.
---------------------------------------------------------------------------------------------------------------------

This drafting history shows that the Court's power goes beyond mere suggestion or advice, but carries some connotations of obligation. Indeed, the French word "indiquer" probably goes even further in this direction than the English word "indicate", for one of the meanings of "indiquer" is "to draw up (a procedure, etc.); to dictate, prescribe, lay down of a line of action, etc.)"FN3

---------------------------------------------------------------------------------------------------------------------
FN3 Harrap's Standard French and English Dictionary, Vol. 1, p. I:18.
---------------------------------------------------------------------------------------------------------------------

(ii) The word "ought"

To be noted first of all is the fact that, within the context of Article 41 itself, one finds the word "ought" being used in reference to the provisional measures that are indicated. The word "ought" carries the connotation of an obligation, and takes the matter further in the direction of a duty being imposed than does the word "indicate" taken by itself. A reference to the French version of the Statute rather strengthens this conclusion, for it uses the word "doivent" which carries the implications of "should" or "ought" in the sense of the existence of a dutyFN1. Indeed, a perusal of standard dictionaries shows that the word "devoir", whether used as a verb or as a noun, carries heavy overtones of duty or obligation, as in "it is your duty to honour your parents" or "do your duty come what may" (for the verb) or (a) "duty" as to do one's duty; (b) "obligation" as the obligations of a citizen (for the noun). Though these meanings do not by themselves [p 381] convey the idea of a legal duty, it is clear that both the English "ought" and the French "doivent" considerably reinforce the word "indicate".

---------------------------------------------------------------------------------------------------------------------
FN1 Ibid., p.D:53.
---------------------------------------------------------------------------------------------------------------------

Approaching the matter from another angle, another writer observes:

"In Hohfeldian terms a legal right imports a correlative legal duty. Thus the word 'ought' in the phrase 'measures which ought to be taken to preserve the respective rights of either party' would seem to refer to a legal duty."FN1

------------------------------------------------------------------------------------------------------------
FN1 Elkind, op. cit., p. 153.
------------------------------------------------------------------------------------------------------------

This argument of correlative connotations assumes relevance also in relation to the word "power".

(iii) "Mesures conservatoires"

Further reinforcement is given to this stronger meaning when we see that the expression "provisional measures" in English is again weaker than the French expression "mesures conservatoires", which gives more emphasis than the English phrase to the importance of preserving the subject-matter without damage. While the English words taken by themselves may seem to stress the provisional aspect of these measures, the French expression stresses more clearly what the whole exercise is about - namely the preservation intact of the subject-matter of the case. Indeed, in the English translation of Mr. Fernandes' original draft, the words "mesures conservatoires" were correctly translated as "protective measures"FN2, but while the expression "mesures conservatoires" remained constant through altered French versions of the provision and still remains in Article 41, the English translation switched to the weaker expression "provisional measures" which of course does not exactly parallel the French text.

---------------------------------------------------------------------------------------------------------------------
FN2 See Elkind, op. cit., p. 44
---------------------------------------------------------------------------------------------------------------------

The discrepancy between the English and the French texts was the subject of comment at a meeting of the judges of the Permanent Court when they discussed the amendment of the Rules relating to provisional measures. Sir Cecil Hurst noted the phraseology "mesures conservatoires" and "interim protection" in the two versions and expressed a doubt as to whether the two expressions exactly correspondedFN3Actes et Documents relatifs à l'Organisation de la Cour, Deuxième Addendum au No. 2, p. 253. The Registrar then drew attention to the different expressions used in English in Article 41 of the Statute and Article 57 of the Rules as they then existed, [p 382] for the rendering into English of the expression "mesures conservatoires"FN1.

---------------------------------------------------------------------------------------------------------------------
FN3Actes et Documents relatifs à l'Organisation de la Cour, Deuxième Addendum au No. 2, p. 253.

FN1Ibid
---------------------------------------------------------------------------------------------------------------------

(iv) The word "power"

Perhaps more conclusive than all of these in reinforcing this interpretation of something more than a mere moral duty, is the use at the commencement of the article of the word "power". If all that Article 41 enables the Court to do is give exhortations to parties, which are of a non-binding nature, the use of the word "power" in enabling the Court do so is difficult to understand. One needs power to impose a binding obligation but one does not need "power" to give exhortatory advice. One cannot see the Statute as solemnly investing the Court with special power under Article 41 if the sole object of that power was to proffer non-binding advice, which the parties were perfectly free to disregard. A word with such heavy connotations as "power" must clearly have been meant to give the Court an authority it did not otherwise have - an authority to impose on parties an obligation which, without such a word, would not be binding on them.

Power, in the language of analytical jurisprudence, means that those on whom that power is exercised are under a duty to comply with the exercise of that power, for, if no duty were to result, there would be no need for the exercise of "power". The well-known Hohfeldian analysis of rights, which has received wide acceptance, classifies liability as the jural correlative of powerFN2, thus indicating that, when a legal power is exercised, a legal liability ensues to comply with that exercise of power. Such considerations lead to the conclusion that "indications" issued under Article 41 carry more than a merely moral duty to comply with the measures indicated FN3

---------------------------------------------------------------------------------------------------------------------
FN2On the Hohfeldian analysis and the many writers upon it, see Salmond on Jurisprudence, 12th ed., 1966, p. 225.
FN3Elkind, ibid.
--------------------------------------------------------------------------------------------------------------------


(v) The description of less significant measures as orders

Another approach to the question is along that of the interesting argument adduced by Hambro that orders made by the Court under Article 48 of its Statute, which are described as orders in the Article itself, and which relate to comparatively minor matters such as the form and time in which each party must conclude its arguments are undoubtedly enforceable under Article 53 of the Statute. Hence, the "much [p 383] more solemn and serious orders under Article 41" should be binding as wellFN1

---------------------------------------------------------------------------------------------------------------------
FN1 Hambro, op. cit., p. 170.
---------------------------------------------------------------------------------------------------------------------


A misunderstood passage in this context is the following from Free Zones of Upper Savoy and the District of Gex:

"[O]rders made by the Court, although as a general rule read in open Court, due notice having been given to the Agents, have no 'binding' force (Article 59 of the Statute) or 'final' effect (Article 60 of the Statute) in deciding the dispute brought by the Parties before the Court ..." (P.C.I.J., Series A, No. 22, p. 13.)

The Court was there merely giving expression to the principle that "an order has no binding force on the Court in its ultimate decision on the merits"FN2

---------------------------------------------------------------------------------------------------------------------
FN2See Crockett, op. cit., p. 377, emphasis added.
---------------------------------------------------------------------------------------------------------------------


(vi) The undertaking to comply with "decisions" of the Court in terms of Article 94 of the United Nations Charter

By Article 94 (1) every Member of the United Nations undertakes to comply with the decisions of the Court in any case to which it is a party. When the Court decides to indicate provisional measures is it making a decision?

An indication that provisional measures are treated as a decision by the Court itself is their description as such in Articles 74 (2), 76 (1) and 76 (3) of the Rules of Court. As Hambro argues, interim measures are certainly treated as decisions by these ArticlesFN3.

---------------------------------------------------------------------------------------------------------------------
FN3Hambro, op. cit., p. 170.
---------------------------------------------------------------------------------------------------------------------


Also to be noted is that the French expression "pour statuer d'urgence", appearing in the French version of Article 74 (2) of the Rules of Court, conveys the idea of making a decision or judgment. In Articles 76 (1) and 76 (3), however, the French version uses the same word "decision".

One notes in this context the statement of one of the most eminent writers on the jurisprudence of the Court who, in discussing whether the obligation derived from Article 94 (1) of the Charter is wide enough to embrace interlocutory orders, has observed that "the word 'decision' in the Charter refers to all decisions of the Court, regardless of their form"FN4. This would include provisional orders as well.

---------------------------------------------------------------------------------------------------------------------
FN4Shabtai Rosenne, The Law and Practice of the International Court, 1985, p. 125; see, also, Rosenne, The International Court of Justice, 1957, p. 82, to the same effect.
---------------------------------------------------------------------------------------------------------------------
[p 384]

In this context, it is to be noted that Judge Elias has also expressed the view that an indication of preliminary measures has the same force as a judgment since it is at least an interim judgmentFN1. This supports the view that provisional measures have been treated by the Court as a judgment.

---------------------------------------------------------------------------------------------------------------------
FN1Taslim O. Elias, The International Court of Justice and Some Contemporary Problems, 1983, p. 79.
---------------------------------------------------------------------------------------------------------------------

Many routes of internal analysis of the relevant instruments thus lead to the same conclusion, namely, that an indication of provisional measures by the Court is not merely a formula of exhortation but a decisi on exercised under the powers of the Court which imposes an obligation on the party to whom they are directed, which is of a legal and binding nature.

Nor does this conclusion, reached upon a purely linguistic analysis of the phraseology used in the Court's instruments, lead to a conclusion which is other than one eminently suited to the purpose and the function of the judicial process, especially as it is exercised at the highest international level through the International Court.

(d) Binding Nature of Provisional Measures as Inferred from Decisions of the Court

We are not on clear ground here, but there is much that is suggestive of the Court's implicit acceptance of the binding nature of provisional measures, quite apart from the Court's treatment of provisional measures as "orders" or "decisions" in its internal practice.

In Nuclear Tests, for example, the Court recited without comment the pleadings of the Australian Government that

"in the opinion of the Government of Australia the conduct of the French Government constitutes a clear and deliberate breach of the Order of the Court of 22 June 1973" (Nuclear Tests (Australia v. France), I.C.J. Reports 1974, p. 259, para. 19).

While this was, of course, the position of Australia and not of the Court, the selection of this averment and its reproduction without adverse comment leaves room for inferring that the Court gave that Order its tacit endorsement. As Sztucki observes:

"the Court is responsible for its own selection of quotations and for supplying them with, or leaving them without, a commentary. The quoted passage from the Court's order can therefore be inter-[p 385]preted as a tacit and indirect endorsement of the applicant's position." FN1

------------------------------------------------------------------------------------------------------------
FN1 Jerzy Sztucki, op. cit., pp. 272-273.
------------------------------------------------------------------------------------------------------------

The marked lack of affirmative decisions of the Court on this matter is another factor attracting attention to the importance of a consideration of this question There is a paucity also of dicta of judges of the Court in separate opinions, declarations or dissents.

Among other judicial dicta to the same effect, we should note the declaration of Judge Ignacio-Pinto in Fisheries JurisdictionFN2 where, with reference to interim measures ordered by the Court, he viewed certain later incidents involving numerous clashes in the disputed fishery zone as acts which "constitute so many flagrant violations on either side" of the operative part of the Orders in question.

---------------------------------------------------------------------------------------------------------------------
FN2 Fisheries Jurisdiction (United Kingdom v. Iceland), Interim Protection, I.C.J. Reports 1973, p. 305.
---------------------------------------------------------------------------------------------------------------------

The Permanent Court commented in the Polish Agrarian Reform case that the interim measures requested would result in a general suspension of agrarian reform in so far as concerns Polish nationals of German raceFN3. The implication of such an observation could well be that in the Court's view, the interim measures sought would have a legally binding effect.

---------------------------------------------------------------------------------------------------------------------
FN3P.C.I.J., Series A/B, No. 58, p. 178.
---------------------------------------------------------------------------------------------------------------------

The often-quoted statement of the Court in Free Zones of Upper Savoy and the District of Gex that such order had "no 'binding' force or 'final' effect in deciding the dispute brought by the Parties before the Court"FN4 does not have the conclusive effect it is sometimes represented as having, as pointed out earlier in this opinion. That statement was restricted to the impact of those measures on the final order. Clearly an interim order does not have a binding force or final effect upon the eventual decision of the dispute as it is clearly interlocutory and provisional.

---------------------------------------------------------------------------------------------------------------------
FN4 P.C.I.J., Series A, No. 22, p. 13.
---------------------------------------------------------------------------------------------------------------------

From the recent jurisprudence of this Court, perhaps the case of Military and Paramilitary Activities in and against Nicaragua could best be cited as indicative of a duty lying on a party to take "seriously into account" provisional measures indicated by the Court and "not to direct its conduct solely by reference to what it believes to be its rights"FN5.

---------------------------------------------------------------------------------------------------------------------
FN5. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1986, p. 144, para. 289.
---------------------------------------------------------------------------------------------------------------------
[p 386]


(e) Binding Nature of Provisional Measures as Inferred from Extra-judicial Writings of Judges of the Court

Judges of this Court, writing extra-judicially, have contributed much to the view that provisional orders are binding.

Judge Jessup, in his foreword to an academic work which reaches the conclusion that such orders are binding, has given that conclusion the weight of his support by observing that the author "weighs the pros and cons and soundly concludes that such orders are binding"FN1.

---------------------------------------------------------------------------------------------------------------------
FN1Philip C. Jessup, Foreword to Elkind, op. cit., p. XIII.
---------------------------------------------------------------------------------------------------------------------


Sir Gerald Fitzmaurice observes:

"The whole logic of the jurisdiction to indicate interim measures entails that, when indicated, they are binding - for this jurisdiction is based upon the absolute necessity, when the circumstances call for it, of being able to preserve, and to avoid prejudice to, the rights of the parties, as determined by the final judgment of the Court. To indicate special measures for that purpose, if the measures, when indicated, are not even binding (let alone enforceable), lacks all point ..."FN2.

------------------------------------------------------------------------------------------------------------
FN2 Fitzmaurice, The Law and Procedure of the International Court of Justice , Vol. 2, 1986, p. 548.
------------------------------------------------------------------------------------------------------------


Judge Lauterpacht, while strongly of the view that the Statute did more than impose a purely moral argument, also expressed some reservations:

"It cannot be lightly assumed that the Statute of the Court - a legal instrument - contains provisions relating to any merely moral obligations of States and that the Court weighs minutely the circumstances which permit it to issue what is no more than an appeal to the moral sense of the parties. At the same time, the language of Article 41 of the Statute precludes any confident affirmation of the binding force of the measures issued by it under that Article ..."FN3

------------------------------------------------------------------------------------------------------------
FN3 Sir Hersch Lauterpacht, The Development of International Law by the International Court, 1958, p. 254.
------------------------------------------------------------------------------------------------------------

Judge Hudson of the Permanent Court in his treatise wrote that the word "indicate" "is not less definite than the term order would have been, and it would seem to have as much effect"FN4.

---------------------------------------------------------------------------------------------------------------------
FN4Manley O. Hudson, The Permanent Court of International Justice, 1920-1942, 1943, p. 425.
---------------------------------------------------------------------------------------------------------------------

[p 387]
An Historical Overview

This has thus far been a strictly legal analysis. However this Court cannot lose sight of the human factor which looms large, particularly in a case such as that which is now before the Court. It is an aid to this necessary dimension in the appreciation of a legal problem to take a glance at the great historical processes that brought this Court into existence. The Permanent Court, set up in the aftermath of the most devastating conflict the world had seen, embodied the aspirations of a war-torn generation anxious to put behind them the horrors of international lawlessness and to enthrone international law. They sought to achieve this through a Court operating internationally on the model of the superior courts which ensured the rule of law at a domestic level.

Despite strong contentions in favour of a jurisdiction more closely modelled on the analogy of a Supreme Court, the Statute of the Court drafted by the Advisory Committee of Jurists did not give the Court the full judicial powers normally associated with a court of superior jurisdiction. Worthy of recall in this context is the speech of Mr. LaFontaine of Belgium, regarding the jurisdiction of the proposed Court. This speech was made at the 20th plenary meeting of the First Assembly on 13 December 1920 on the occasion of the presentation of the report of Committee III on the Permanent Court of International Justice. He lamented the failure of the proposed Statute to vest the Court with fuller jurisdiction.

The Speaker reminded the Committee that an expectant world had been "long ago told that the creation of an International Court would be the only effective antidote to the dread supremacy of force"FN1. His speech is deeply relevant to contemporary discussions of the powers of this Court.

---------------------------------------------------------------------------------------------------------------------
FN1 Documents concerning the Action Taken by the Council of the League of Nations under Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent Court, 1920, p. 232.
---------------------------------------------------------------------------------------------------------------------

"In such circumstances I feel how poor a thing is my eloquence. We need a Demosthenes, a Mirabeau, a Jaurès on this platform. I call upon you to listen to the sound that comes to you from beyond these walls, a great moaning like to that of the sea. It is the voices of the mothers and the wives who are mourning for those whom they have lost. It is the voice that rises from the peoples, the working masses who are weary of the miseries and of the plagues which are striking them and continue to strike them. ... It is the voice of those who are sleeping buried on the battlefield, who have given their youth and sacrificed hope and joy in order that there might be justice in the world.

Nevertheless, we have obtained in the Statute submitted to you the [p 388] means of accepting a compulsory jurisdiction of the Court. I hope that those who sign the Protocol, I trust that all the Delegations here present, will accept the provisions of Article 36."FN1

---------------------------------------------------------------------------------------------------------------------
FN1 Ibid., p. 233.
---------------------------------------------------------------------------------------------------------------------


These are poignant words - words whose poignancy matches that of the circumstances before us. They highlight the very problem now before the Court.

That jurisdiction, though not as complete as many had desired when the Statute of this Court was first formulated, has yet been worked, through nearly 70 years of jurisprudence, to evolve a not insubstantial body of international law which has served a valuable role in preserving international peace. To give to those powers, incomplete as they are, a meaning which attenuates them further by denying the Court the authority to conserve its own jurisdiction through provisional measures of a binding nature, when another equally sustainable interpretation is possible, is a step away from the idealism which gave birth to the Court.

Moreover, times have changed since the era, more than 70 years ago, when for the first time in world history an international court was created. Manley O. Hudson captured the pressures of those times when he wrote in his treatise:

"The term indicate, borrowed from treaties concluded by the United States ... possesses a diplomatic flavor, being designed to avoid offense to the 'susceptibilities of States'. It may have been due to a certain timidity of the draftsmen."FN2

------------------------------------------------------------------------------------------------------------
FN2 Manley O. Hudson, op. cit., p. 425.
------------------------------------------------------------------------------------------------------------


There was then a natural hesitancy in taking on this new jurisdiction which was as yet untried. That natural hesitancy in that incipient phase of the Court's jurisdiction led to weak interpretations which have left their legacy to this day. Many decades of creative work since then enable a more confident interpretation of the powers of the Court.

The words under examination, as shown in the earlier part of this opinion, are thus, in accordance with accepted rules of legal construction, clearly capable of bearing the meaning that they impose a legal obligationFN3. That is an interpretation supported also by sound legal principle [p 389] and by the universal acceptance of nations. It is a principle which the Court, at this stage of its jurisprudence, can confidently assert. It should of course be clear at all times that the Order is only provisional, is not a final finding of fact and leaves untouched the matters that await the final decision of the Court upon the merits.

---------------------------------------------------------------------------------------------------------------------
FN3 As Hudson observed in continuation of the passage already cited:

"An indication by the Court under Article 41 is equivalent to a declaration of obligation contained in a judgment, and it ought to be regarded as carrying the same force and effect." ( Op. cit., p. 426.)
---------------------------------------------------------------------------------------------------------------------

To view the Order made by the Court as anything less than binding so long as it stands would weaken the régime of international law in the very circumstances in which its restraining influence is most needed.

***

For the reasons set out, the provisional measures ordered by the Court on 8 April 1993 imposed a binding legal obligation on the Respondent. Non-compliance with that Order endangers the very subject of the dispute before the Court and can cause irreparable harm to the Applicant. This irreparable harm is not in regard to rights and duties such as are often the subject of litigation, for we are here dealing with matters under the Genocide Convention, touching the very existence of a people. An interpretation which imposes anything short of a binding legal obligation upon the Respondent is out of tune with the letter and spirit of the Charter and the Statute.

(Signed) Christopher Gregory Weeramantry.


[p 390]
Separate opinion of judge Ajibola

1. Introduction

I have voted in favour of the decision of the Court whereby it reaffirmed the provisional measures indicated in paragraph 52 of its Order of 8 April 1993, but I equally have some observations and amplifications to make on some aspects of the request which are explained below, in view of the apparently unique nature of the request, and the importance of the subject-matter to world peace - and the development of the jurisprudence of this Court, especially as it relates to procedural matters in all cases of requests for the indication of provisional measures.

2. The Requests

On 27 July 1993, a request was filed by the Agent of Bosnia-Herzegovina in this Court - which was, in fact, its second request for the indication of provisional measures. The reasons for the filing of this second request were given in the Agent's letter attached to the request:

Mr. Rodoljub Etinski, Agent for the Federal Republic of Yugoslavia (Serbia and Montenegro) also filed with the Registry a request for the indication of provisional measures dated 9 August 1993.

It is not out of place to remind ourselves that the determination of the United Nations as stated in the Preamble of the Charter, is:

"to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained ..." (emphasis added).

These laudable declarations of the determination of the United Nations directed towards the maintenance of peace and security in the world, cannot be seen as mere verbiage, unrelated to a firm resolve to give them effect through its main organs like the Security Council, the General Assembly, and of course, in this particular instance, the Court as its principal judicial [p 391] organ, that is thus seised of the matter in hand. The First World War ended with the establishment of the League of Nations, and having as its judicial organ the Permanent Court of International Justice, both of which ceased to exist at the end of the Second World War.

The pioneering member States that met in San Francisco to draft the United Nations Charter devoted a great deal of effort to ensuring that peace, security, justice and the pacific settlement of disputes would be ensured and thoroughly incorporated into the Charter. Hence they spelt out, in clear terms, some of their goals and aspirations to ensure the supremacy of international law, peace, security and justice among all Nations.

Members were enjoined, as stated in the second part of the Preamble:

"to practice tolerance and live together in peace with one another as good neighbours, and

to unite our strength to maintain international peace and security, and

to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest ..." (emphasis added).

It may perhaps be argued that the preambular part of the Charter is non-justiciable, and that it was in order to obviate this problem that many of the declarations, determinations, aims and objectives of the Member States were encapsulated in the first paragraph of the first Article, thus:

"1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace."

I have cited some of the provisions of the United Nations Charter referred to above, not without good reason and in order to highlight, for the purposes of my argument, the yearnings and aspirations of nations of the world seeking for peace at this crucial time through international law and the pacific settlement of international disputes. It is for all these reasons that I welcome and approve of the decision of the Court based on the provisions of the Genocide Convention. For the aforementioned reasons, I shall now proceed to touch on some pertinent aspects of Bosnia-[p 392]Herzegovina's request as well as the request of the Federal Republic of Yugoslavia (Serbia and Montenegro) for the indication of provisional measures.

3. Unique Nature of the Requests

In the recent history of the Court, it can be seen that there has been only one occasion on which the Court was called upon to respond to a second request for provisional measures. That was in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America); when such a request was filed in the Registry of the Court on 25 June 1984. Nicaragua stated in its second request (pursuant to paragraph 41 (C) of the Order of the Court dated 10 May 1984), that it was occasioned by the alleged failure of the United States to comply with the aforementioned Order of the Court, and that the Court ought to make a second order to secure compliance with the first one. As in the present case, Nicuragua annexed to the application fresh evidence of breaches of the Court's Order. The Court did not entertain the second request, considering, as contained in the letter from the President of the Court dated 16 July 1984, that Nicaragua should await the outcome of the proceedings on jurisdiction which were then pending before the Court. This episode was referred to in paragraph 287 of the Court's 1986 Judgment. However, the Court, in paragraph 288 of the same Judgment, re-emphasized, in the light of its findings on the merits, the Order that had been made on 10 May 1984.

The other case that bears a resemblance to the one mentioned above was taken to the Security Council. This was the Anglo-Iranian Oil Co. case in which Iran ignored the Order of the Court made in July 1951. The Security Council decided that Britain must await the outcome of the proceedings on jurisdiction that were currently pending before the Court. Even though the Respondent in the present case has reserved its right to file a preliminary objection in relation to the jurisdiction of the Court, this has not as yet been done and there is no proceeding on jurisdiction pending before the Court as at the moment; otherwise such an application would perhaps have prevented the Court from entertaining this new request from the Applicant. On the contrary, the Respondent also filed its own request for an indication of provisional measures, as mentioned above. The Security Council is already firmly seised of this dispute and there have been many resolutions passed on it, perhaps more than any other single matter that has been treated by the Security Council. The Security Council, by resolution 819 (1993) of 16 April 1993 took note of the Order of the Court of 8 April 1993 and, in that resolution, reaffirmed its condemnation of all "violations" of international humanitarian law and [p 393] "ethnic cleansing" in particular. Both the Court and the Security Council have taken steps, I believe, to stop the ongoing acts of genocide in Bosnia.

4. Has the First Order of the Court Been Complied With?

At the sitting of the Court on 26 August 1993, during the hearing of the requests for the indication of provisional measures in this case, I put a question to both Parties that was worded as follows:

"The Court, on the first request for an indication of provisional measures presented to it by the Applicant in this case, issued on 8 April 1993 the following order:

'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;

...

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 [p 394] 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.'

What steps have been taken by each Party to ensure compliance with this Order?"

Answers have been supplied by both Parties, but I am sorry to say that the answers do not convincingly suggest that the measures relating to acts of genocide which the Court indicated in its Order as quoted above have been complied with by either of the Parties.

If it can therefore be said that the first Order has not been complied with, will the Court not be justified in refraining from issuing a second such Order until the first set of measures has been implemented? Whatever may be the controversy on the legal effect of an order of the Court, has it not the power to refuse making any further order or orders until the first one has been complied with? Must the Court make orders in vain? Does it not fall within the inherent power of the Court to make an order or reject an application apart from invoking the provisions of Article 41 of the Statute as well as its powers under Section D of the Rules of the Court, especially those contained in Articles 73, 74, 75 and 76 of those Rules? Can the Court not exercise its discretion as it deems fit, in relation to all matters of this nature? These are some of the questions that have engaged my mind since the most recent requests were filed in this Court. Returning to my first question as to whether the Court has the power to refuse to make any further order or orders until the first one is complied with, I think I should qualify that question by restricting such power of the Court to only similar applications for requests to indicate provisional measures ratione materiae and ratione personae. I do not have in mind such requests as were presented to the Court in the Nicaragua case, where the Applicant was seeking an order of the Court to the effect:

"That, until such time as the United States ceases and desists from all activities that do not comply with the Order of 10 May 1984, the facilities of the Court shall not be available to the United States for the purpose of rendering a decision in its favour in any other pending or future case, and the United States shall not be permitted to invoke the Court's aid in any matter." (Request of the Republic of Nicaragua concerning implementation of the Court's Order of 10 May 1984 dated 25 June 1984.)

With due deference that was going rather too far, and I share the view of the Court as contained in the letter of 16 July 1984 (already referred to), [p 395] when it replied that it "considers that this somewhat unprecedented request is difficult to contemplate" (letter of 6 July 1984 from the President of the Court to the Agent of Nicaragua) and gave reasons with which I agree. In many domestic courts, especially in the common law countries, interlocutory applications are exclusively at the discretion of the court, and in most cases when the court is called upon to exercise such a discretion (which is a part of the inherent power of the court), "equity" plays a very large role, and an applicant who "wants equity must do equity" implying that that applicant "must come with clean hands". This means that, if an applicant wants the court to exercise its equitable discretion on a matter, he must first satisfy the court that the earlier order issued by the court has been complied with, otherwise the court may refuse to make any further order.

Fitzmaurice expressed his doubt as to whether the jurisdiction of the Court is inherent per se, and he felt that the whole issue is debatable as to whether the Court's jurisdiction to indicate provisional measures would normally or automatically form part of its inherent powers as an international tribunal in the absence of specific provisions such as Article 41 of the Statute of the Court. However, he concluded his exposition by expressing an ambivalent view in the following terms:

"On that occasion the present writer expressed the view that in existing international conditions, the arguments against 'inherency' would prevail in any test case. He nevertheless indicated his belief that the arguments for are much weightier, and he sees no reason to change this conclusion." (Fitzmaurice, The Law and Procedure of the International Court of Justice, Vol. II, 1986, p. 774.)

However with regard to inherent powers under the Statute, he expressed his view as follows:

"The jurisdiction to indicate interim measures of protection is, so far as the International Court is concerned, part of the incidental jurisdiction of the Court, the characteristic of which is that it does not depend on any direct consent given by the parties to its exercise, but is an inherent part of the standing powers of the Court under its Statute. Its exercise is therefore governed, not by the consent of the parties (except in a remote sense) but by the relevant provisions of the Statute and of the Rules of Court." (Ibid., p. 533; emphasis added.)

One may argue that this is still an inherent power derived from the Statute and Rules of Court. Perhaps it is important to note that its jurisdiction is incidental, like all other incidental powers of other international adjudi-[p 396] cating tribunals. Therefore, once the Court is seised of a case in which it has jurisdiction prima facie, all of its incidental powers ought naturally to flow from that jurisdiction whether statutory or otherwise, like any other international tribunal, even though most of these powers, functions and jurisdiction are provided for in the Statute and Rules of Court.

The learned author went even further when he stated that:

"As has been shown above, the power of the Court to indicate interim measures falls into the same category as its compétence de la compétence. Both are an exercise of incidental jurisdiction, necessary in the case of compétence de la compétence to enable the Court to function at all, and, in the case of the power to indicate interim measures, to prevent its decisions from being stultified ... Yet it is established law that this power is part of the inherent powers of all international tribunals, irrespective of whether it has been expressly conferred on them or not." (Ibid., p. 542.)

This view of Sir Gerald Fitzmaurice was definitively affirmed in the Nottebohm case, where the Court clearly and positively claimed such an incidental power when it pointed out that:

"Paragraph 6 of Article 36 merely adopted, in respect of the Court, a rule consistently accepted by general international law in the matter of international arbitration. Since the Alabama case, it has been generally recognized, following the earlier precedents, that, in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction." (I.C.J. Reports 1953, p. 119.)

Two possible theses may, therefore, emerge from the expression quoted above; since the issue of jurisdiction is an incidental one - like the power of the Court to indicate provisional measures - then it follows that such a power should likewise be a part of the inherent power of the Court. Again, since such power under international law is available to international arbitral tribunals, a fortiori it must also be available to the Court. Furthermore, going by the decision of the Court in the Corfu Channel case on proceedings in default of appearance, one may conclude that generally, in matters of procedure, what is not specifically prevented by the rules may be applied by the Court (Rosenne, The Law and Practice of the International Court, 1965, Vol. II, pp. 590-591, para. 244). There is support for the view that:

"the failure of a State to comply with an interlocutory decision can lead to the automatic imposition by the Court itself of a sanction [p 397] against that State, and will only bring it disadvantage ... since the interlocutory decision in itself does not dispose of the substantive rights of the parties" (ibid., Vol. I, pp. 124-125).

The discretionary power of the Court, even though statutory, flows from Article 75 of the Rules of Court. Paragraph 1 of the Article makes it clear that proprio motu, the Court may at any time indicate provisional measures if the circumstances of the case so dictate and that such measures ought to be complied with by any or all the parties involved in the case. Paragraph 2 goes further to empower the Court to indicate measures that are in whole or part different from those requested by the parties, if in its discretion such measures ought to be taken or complied with by the parties. This Article gives the Court a wider discretionary power than does Article 41 of the Statute of the Court. It is an Article which to a great extent allows the Court to function as it ought to and in turn derives its validity from Article 30, paragraph 1, of the Statute of the Court which states that: "The Court shall frame rules for carrying out its functions. In particular, it shall lay down rules of procedure."

Apart, therefore, from the discretionary and inherent powers of the Court, these rule-making powers are necessary to enable the Court to function as a Court and to ensure that orders issued by it are obeyed. I believe that the Court thus has the power statutorily and inherently to ensure compliance with whatever interlocutory directives or orders it may make in any matter of which it is seised. If this power were not available to the Court or were denied to it, an absurd situation might occur, especially having regard to the provisions of Article 74, paragraph 3, whereby the Court may persistently be inundated with requests for indications of provisional measures by the same parties, when in fact, an earlier order has not been complied with.

5. Is the Order Binding?

This question is difficult to answer. One would have expected such an apparently simple question to be answered positively, since in international arbitrations and cases heard by other adjudicating tribunals such orders, like their awards, are final and binding. The controversy as to whether an order of the Court has binding force stems from the wording of the text of Article 41 of the Statute and Article 94 of the Charter. Sir Hersch Lauterpacht regrets this situation and suggests adequate amendment. I would refer to his discussion of effectiveness of the law, when he said that: [p 398]

"This circumstance illustrates to some extent the difficulty and the degree of artificiality surrounding the subject of provisional measures - drawbacks which stem from the fact that according to the wording and, perhaps, the intention of the Statute no legally binding force attaches to Orders issued under Article 41 of the Statute. The latter statement is controversial. However, that very fact may suggest the necessity of amending the Statute with a view to removing what is either an ambiguity or, on the assumption that Orders under that Article lack legal force, a provision inappropriate to a legal instrument." (Sir Hersch Lauterpacht, The Development of International Law by the International Court, 1958-1982, pp. 112-113; emphasis added.)

What then is wrong with Article 41 of the Statute that makes it not legally binding? Is any such deficiency one of "omission" or "commission"? Is there really an ambiguity contained therein? How should it have been worded? After all, this is the main vehicle whereby all the applications for an indication of provisional measures of protection are being transported into the portals of justice at the Peace Palace. On the face of the text of the Article, there is nothing that specifically leads one to conclude that it lacks binding force. The first paragraph reads thus:

"The Court shall have the power to indicate, if it considers that circumstance so require, any provisional measures which ought to be taken to preserve the respective rights of either party."

If one looks into the jurisprudence of this Court, it will be seen that there has been no categorical pronouncement on this issue, but that on 19 August 1929, in the Free Zones of Upper Savoy and the District of Gex case, the Permanent Court of International Justice stated that, unlike the final judgment of the Court, orders of the Court have no "binding force" or "final effect" in the decision of any dispute. The relevant paragraph reads as follows:

"and whereas, in contradistinction to judgments contemplated by Article 58 of the Statute, to which reference is made in Article 2, paragraph 1, of the Special Agreement, orders made by the Court, although as a general rule read in open Court, due notice having been given to the Agents, have no 'binding' force (Article 59 of the Statute) or 'final' effect (Article 60 of the Statute) in deciding the dispute brought by the Parties before the Court" (P.C.I.J., Series A, No. 22, p. 13).

Since then (about 64 years ago), the issue of whether the indication of provisional measures does or does not have legal binding force has continued to be in controversy. [p 399]

However, I think that the time has come when this Court should make a definitive pronouncement on this issue. After all, the principle of stare decisis is not applicable in the Court. In fact a careful examination of Article 41, paragraph 1, will suggest that it is prima facie and patently devoid of any ambiguity. In the plain and ordinary meaning of the form of words employed, the use of the words "shall" and "power" is undoubtedly mandatory and imperative, giving the Court an indisputable prerogative to indicate provisional measures. The phrase "if it considers that circumstances so require" relates to the discretionary exercise of such power, to be used or applied in deserving cases. The reason why the power was given is clearly apparent in the later part of the Article; and that is to enable the Court to function as it should by preserving the "rights" of either party. Logic and common sense would consider it ridiculous and absurd for the Court to be unable to preserve the rights of the parties pending the final judgment.

If the Court is not sufficiently effective and truly empowered to preserve the status quo, what then is the essence of carrying litigation through to its final conclusion, leading to the giving of judgment? Such an absurdity would be like affirming that confidence is to be placed in the record of a judgment and not in the judge - Absurdum est affirmare (re judicata) credendum esse non judici. As pointed out earlier, Lauterpacht observed that "according to the wording and, perhaps, the intention of the Statute no legally binding force attaches to Orders". In the first case, I see nothing wrong prima facie in the wording of the Article. It is clear on the face of it, because the Article even envisages a situation of possible stultification of the function of the Court if it cannot exercise such a power of indication, when it refers to "any provisional measures which ought to be taken to preserve the respective rights of either party". It is even clear from the wording of the Article that there may be a situation in which any subsequent action of the Court will become illusory or an exercise in futility, possibly like the case in hand - or the Nicaragua case - if such an indication for provisional measures cannot be given immediately to arrest that ongoing situation.

Arguendo, one may also ask what is the point of giving a request for an indication of provisional measure urgent attention, a quick and immediate hearing and priority (in most cases leading to an order being made within one or two weeks), if in spite of all the effort put into it, the resulting order is to be considered not legally binding and ineffective? Note, for example, the situation of urgency as dictated by Article 74 of the Rules of Court which sounds like an application for habeas corpus in the common law countries. That Article reads: [p 400]

"1. A request for the indication of provisional measures shall have priority over all other cases.

2. The Court, if it is not sitting when the request is made, shall be convened forthwith for the purpose of proceeding to a decision on the request as a matter of urgency." (Art. 74, paras. 1-2; emphasis added.)

There is another aspect of this matter which should be mentioned here. If it is agreed, and I think there is no doubt about this, that the jurisdiction to deal with a request for the indication of provisional measures is part of the incidental jurisdiction of the Court, it can therefore safely be asserted that an incidental order forms a part of the outcome of the adjudicating assignment of the Court which is the final goal or the whole. If the "whole" judgment is binding, why then should it not be the same with that "part" of the "whole"?

Concluding this part of my opinion on whether the Order of the Court is binding or not, I believe there is no reason why the Court's Order should not be binding on the Parties; otherwise the Court would not be empowered to make such orders in accordance with the provisions of the Statute and Rules of Court. The Court is empowered to make rules under Article 30 of the Statute; thus by evoking that Article, such orders made under the Rules are equally valid and binding. If, the Court were to be even in the slightest doubt as to the force behind such power as is contained in the Statute, it is submitted that all the provisions in the Rules with regard to requests for an indication of provisional measures together confer upon it sufficient power to pronounce an order.

6. Consequence of Non-Compliance - Is the Order Enforceable?

If an order is not binding it is difficult to see how it can be enforced. This difficulty was prominently highlighted in the United States Diplomatic and Consular Staff in Tehran case, Order of 15 December 1979 (I.C.J. Reports 1979, pp. 20-21, para. 47). In fact, this was the first important "test case" since the adoption of the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963, between two Members of the United Nations - the United States of America and Iran.

This case was filed in the Court by way of an Application by the United States of America on 29 November 1979 against the Government of Iran with regard to the dispute concerning the seizure and holding of hostages who were members of the United States Embassy in Tehran. A request for the indication of provisional measures was annexed to the Application [p 401] and both the Application and the request were aimed at securing the immediate release of the hostages. Even though the Government of Iran was notified, it refused to participate in the proceedings, but merely sent a telegram denying the jurisdiction of the Court. However, the Court exercised its power and discretion - correctly, in my view - and proceeded with the hearing of the request by the United States of America. Five provisional measures were indicated in an Order in which Part A (containing three measures) directed the Government of Iran to release the hostages, give back the Chancery and Consulates of the United States of America which had been occupied, afford all the diplomatic and consular personnel of the United States of America the full protection, privileges and immunities to which they were entitled under the aforementioned Vienna Convention, and permit the hostages to leave Iran. The rest of the measures are not all that relevant to my thesis here. The important point was that the Islamic Republic of Iran refused to carry out all or any of the measures ordered by the Court. The Court has no machinery for enforcement and relies only on the Security Council to ensure such enforcement under Article 94 of the Charter.

At this point, it is important to state the provision of Article 94 of the Charter, which reads:

"1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.

2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment." (Emphasis added.)

The consequential effect and problem created by this Article with regard to justiciability and enforceability of orders for an indication for provisional measures of protection on matters pending before the Court, are better perceived from the plea of Sir Gladwyn Jebb when the United Kingdom took its complaint to the Security Council - presumably under Article 94, paragraph 1 - in the Anglo-Iranian Oil Co. case, which is another classical example of difficulty with the enforcement of interim measures of protection, as indicated by the Court. In this case, like the earlier case concerning the United States Diplomatic and Consular Staff in Tehran, Iran refused to comply with the Order of the Court. But formally and legitimately, I believe, the United Kingdom presented its complaint to the Security Council under Articles 34 and 35 of the Charter of the United Nations.

If I pause here for a while, it may be safe to argue that even if matters of this nature - relating to orders of the Court - cannot be presented to the Security Council under Article 94, there is nothing to prevent the affected [p 402] State from taking its matter to the Security Council under Articles 34 and 35 of the Charter, so as to ensure that the order of the Court is not treated lightly, even though, and most regrettably, that may also prove ultimately futile at times. Because the statement of Sir Gladwyn made my point very adequately and directly, I feel I would do well to quote him here verbatim:

"the Council has special functions in relation to decisions of the Court, both under Article 94, paragraph 2, of the Charter, and under Article 41, paragraph 2, of the Statue of the Court ... and this must clearly imply that the Council has the power to deal with matters arising out of such interim measures... Now, it is established that a final judgment of the Court is binding on the parties; that, indeed, is expressly stated by Articles 59 and 60 of the Statute and Article 94, paragraph 1, of the Charter. But, clearly, there would be no point in making the final [judgment] binding if one of the parties could frustrate that decision in advance by actions which would render the final judgment nugatory. It is, therefore, a necessary consequence, we suggest, of the bindingness of the final decision that the interim measures intended to preserve its efficacy should equally be binding." (United Nations, Official Records of the Security Council, 559th meeting, 1 October 1951, S/PV.559, p. 20; emphasis added.)

This statement of Sir Gladwyn calls for some examination in view of the difficulties surrounding matters arising out of indication of provisional measures of protection by the Court. If by reference to Article 94, paragraph 2, of the Charter, Sir Gladwyn was referring to the power of the Security Council vis-à-vis the power of the Court to indicate provisional measures of protection in the form of an order, I do have some reservations. Article 94, paragraph 2, deals only with the judgment and not incidental orders or interlocutory matters. If the word judgment is meant to include an order of this nature under discussion, I must beg to differ. Here I take the view that those who drafted the Charter meant a final decision of the Court or perhaps a final judgment. If we think of the word decision as a generic term encompassing orders and judgments, then I think Article 94, paragraph 1, is better referred to since that paragraph deals with decisions. But there again, I wish to observe that paragraph 1 is somehow weak and too general because the use of the word "undertake" tends to imply an appeal to the "moral obligation" of a State. A more imperative word like "ought", "must", "shall" and "under obligation to" should perhaps have been employed. What again puzzles me with the wording of that section as finally adopted is the fact that the word "decision" was used in paragraph 1 and "judgment" used in paragraph 2.

It is my view that the word "decision" should preferably have been used in both cases, otherwise it may even be better to spell matters out by insert-[p 403]ing, in both provisions, the words "judgments or orders" which would elegantly demonstrate the desire to ensure that all the decisions of the Court are to be complied with. But as I have mentioned earlier, the complaint of the United Kingdom was brought under Articles 34 and 35, which to my mind, implied a cautious approach. Time constraints will not permit me to deal any further with Article 94, paragraphs 1 and 2, of the Charter, but it is sufficient to state that it is not adequately or elegantly worded to assist the Court in ensuring due compliance with its orders under discussion.

Sir Gladwyn also referred to the binding force of the decision of the Court under Articles 59 and 60 of the Statute of the Court. I generally agree with him on this point, even though I should quickly add that Article 59 of the Statute of the Court was negatively drafted, whereas there is no reason why such an Article should not be stated positively possibly by providing that "the decision of the Court has binding force between the Parties in respect of that particular case". The way it is drafted puts too much emphasis on ratione personae and ratione materiae. With regard to Article 60, I believe that that Article adequately strengthens the power and function of the Court, in order to ensure the finality of the settlement of any dispute that may be brought before it.

But the most important part of Sir Gladwyn's statement is the last two sentences quoted above. Definitively, there is no reason why a judgment should be delivered or handed down in such cases, if the order of the Court would be frustrated in advance, which in effect, would make the judgment a mere exercise in futility. It strongly supports my view that the Court should not be seen to make any further order if and when the parties in dispute have not taken the necessary steps to ensure the compliance with the earlier order made by the Court. It is for this reason that I share the view of Rosenne when he states:

"That law, the attitude of which to States is impersonal and not eclectic, is ex hypothesi binding on all States. Lex vera, atque princeps, apta ad jubendum, et ad vetandum! For this reason it is submitted that the obligation to comply with the decision of the Court cannot be regarded only as a 'moral obligation'." (Rosenne, The Law and Practice of the International Court, 1965, Vol. I, p. 120.)

7. The Court and the Security Council

The Charter of the United Nations clearly provides that the Security Council gives effect to the possible enforcement of the decisions of the Court - Article 94 of the Charter. The Security Council has immense powers under Chapter VI and Chapter VII of the Charter, which in this [p 404] regard serves as its "executive function". However, a point was made repeatedly by Bosnia in the proceedings on the request for an indication for provisional measures for protection with regard to the arms embargo placed on it and its need for self-defence to prevent continuing acts of genocide. In Article I of the Genocide Convention the High Contracting Parties confirm inter alia:

"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" (emphasis added).

On self-defence, the Agent of Bosnia referred many times during the hearings, and in his earlier Application, to Article 51 of the Charter of the United Nations. This is an important provision on self-defence which provides that:

"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."

There is no doubt that the Security Council has been giving its careful consideration to the hostilities in Bosnia and, as a result of this, has passed many resolutions. For example, on 16 April 1993, just a week after the Court's Order, the Security Council promptly passed resolution 819 (1993) in which it took note of the Court's Order and reaffirmed its condemnation of all the violations of international humanitarian law, in particular the practice of "ethnic cleansing". By resolution 808 (1993) the Security Council has established an international tribunal for the prosecution of persons responsible for serious violations of humanitarian law committed in the territory of the former Yugoslavia. Just recently, on 24 August 1993, another resolution 859 (1993) was passed by the Security Council to ensure and reaffirm the territorial integrity of Bosnia-Herzegovina and its membership of the United Nations. All these resolutions leave one in no doubt that the Security Council has given and continues to give due consideration to international obligations under Chapters VI and VII of the Charter with regard to the hostilities going on in Bosnia. [p 405]

Having said that, perhaps one can pause to see whether there is any positive juridical issue involved in this argument of Bosnia. The fourth request in its fresh request reads thus:

"That the Government of Bosnia and Herzegovina must have the means 'to prevent' the commission of acts of genocide against its own People as required by Article I of the Genocide Convention."

In the first place, I find it difficult to understand this request. What form of measure can the Court indicate to enable Bosnia "to have the means, 'to prevent' the commission of acts of genocide against its own People"? It must, however, be constantly borne in mind that the aim of indicating provisional measures of protection is "to preserve the respective rights of either party", even though one is aware of the requirement of Article I of the Genocide Convention.

Article IX of that Convention provides

"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 Court at the request of any of the parties.

On this particular fourth request of Bosnia, if it is asking for a declaratory judgment of the Court, which seems to me to be the purport of its request, and provided that such a request is entertainable by the Court, it must await the final hearing of the case on the merits. Furthermore, the question is whether the issue of genocide as provided for in Article I of the Convention is not exclusively a matter for the States which "undertake to prevent and to punish" it. Again, another pertinent question may be asked, namely: "Who are the 'Bosnian People'? Does this not include the Croats, Serbs, Muslims and Jews"? Has the request not missed its target since it is alleged therein that "violations" and "acts of genocide" are being directed against the Muslims? As to the power, function and obligations of the Court, I think that they have been adequately addressed and discharged by the Order issued on 8 April 1993, especially on the subject of the prevention of acts of genocide which is the subject-matter of the Applicant's request for provisional measures.

If, however, the issue of "prevention" is, as I suspect, overstretched to include the question of access by the Applicant to the means (weapons) "to prevent" the commission of acts of genocide, I would point out that the request is misconceived as far as the Court is concerned. It was the Security Council acting upon its powers under the Charter - and rightly [p 406] too - that on 25 September 1991 placed an embargo upon the provision of arms and military equipment to Yugoslavia (as it then was) with that State's consent. Even though the Applicant has argued, and I think there is an element of logic in its argument, that at that time (25 September 1991) the State of Bosnia and Herzegovina was not in existence and declared its independence only on 6 March 1992 and became a Member of the United Nations on 22 May 1992, and that the former State of Yugoslavia is no longer in existence, ever since its (Bosnia's) independence the same resolutions on embargo have been maintained. In this regard, the Security Council is now acting within its power under Chapter VII, and it is still seised of the matter. Had any indication been made by the Court on this particular request, and if the same were not complied with (as happened with respect to the Order of 8 April 1993) Bosnia might still have had to present its complaints to the Security Council, either under Articles 34 and 35 of the Charter, or under Article 94 upon which I have earlier expressed my opinion.

My conclusion is that an order, like a judgment (and being incidental to it) ought not to be ineffective, artificial or illusory. It should be binding and enforceable, otherwise, ab initio, there may be a good and reasonable ground to question its being issued at all. The Court, it is submitted, should not be seen to act in vain - Judicium non debet esse illusorium; suum effectum habere debet.

The Court, as I would further point out, has this power under the Statute and Rules, so that it also forms a part of its inherent power under general international law. Otherwise it may be impeded from functioning as a Court. This is my reason for stating that the Court should have rejected or refused to issue the request for another Order in this case, unless and until the first Order of 8 April 1993 had been complied with by both Parties, and I therefore agree with the Court, when it reaffirms its first indication of provisional measures and re-emphasizes to both Parties that they should take all necessary steps to implement and comply with the first Order of the Court, made on 8 April 1993.

(Signed) Bola Ajibola. [p 407]


Separate opinion of judge Lauterpacht

Outline

 

 

Paragraphs

 

 

I. Introduction

1-13

 

 

1. The unprecedented human dimension of this case

2

2. The Court's concern with the gravity and urgency of the case

3

3. The position of the ad hoc judge

4-6

4. The nature of requests for provisional measures

7-13

 

 

II. Jurisdiction

14-37

 

 

1. The Genocide Convention

17

2. The letter of 8 June 1992

18

3. The reference to the customary and conventional laws of war, etc.

19

4. The "Minorities" Treaty, 1919

20-23

5. Forum prorogatum

24-37

 

 

III. The Substance of the Request

38-70

 

 

1. The nature of the evidence to be taken into consideration in relation to requests for provisional measures of protection

38-46

2. The importance of stating essential facts, albeit in summary

form

47-49

3. Some pertinent background

50-66

4. The involvement of the Respondent

67

5. Has genocide been committed?

68-70

 

 

IV. Consideration of the Measures Sought in the Current Request

71-121

 

 

1. The first request

72-73

2. The second request

74-79

3. The third request

80-83

4. The fourth request

84-107

 

 

A. The effect of the Security Council resolution

98-104

B. The procedural question

105-107

 

 

5. The fifth request

108-115

6. The sixth request

116-118

7. The seventh, eighth and ninth requests

119

8. The tenth request

120-121

V. Conclusions

122-124

 


[p 408]
I. Introduction

1. Although I would in some respects (as will appear later) have preferred the Court to have gone into greater detail than it has, I have nonetheless felt able to vote in favour of the operative parts of the Court's Order. As the overall balance of the present opinion is essentially supportive, rather than contradictory, of the reasoning of the Court, it may more appropriately be called a separate than a dissenting opinion.

1. The Unprecedented Human Dimension of This Case

2. In the present proceedings the Court is confronted by a case with a human dimension of a magnitude without precedent in its history. This case is not to be compared with litigation relating to maritime or territorial limits, nor with assertions of State responsibility for denials of justice, wrongful expropriation or the destruction of an aircraft. Even such cases as those relating to South West Africa and to Military and Paramilitary Activities in and against Nicaragua, though involving the fundamental human rights and security of many individuals, cannot be likened in scale to the deliberate infliction of death, injury and dreadful personal suffering that has marked and continues to mark the present conflict in Bosnia-Herzegovina.

2. The Court's Concern with the Gravity and Urgency of the Case

3. So to describe the character of the present case is not to say that the Court should approach it with anything other than its traditional impartiality and firm adherence to legal standards. At the same time, the circumstances call for a high degree of understanding of, and sensitivity to, the situation and must exclude any narrow or overly technical approach to the problems involved. While the demands of legal principle cannot be ignored, it has to be recalled that the rigid maintenance of principle is not an end in itself but only an element — albeit one of the greatest importance — in the constructive application of law to the needs of the ultimate beneficiaries of the legal system, individuals no less than the political structures in which they are organized.

3. The Position of the Ad Hoc Judge

4. What is true for the Court as a whole is every bit as compelling for an ad hoc judge. The fact that he is appointed by a party to the case in no way [p 409] reduces the operative force of his solemn declaration under Article 20 of the Statute, made in the same form as that of the titular judges, that he will exercise his powers impartially and conscientiously.

5. At the same time, it cannot be forgotten that the institution of the ad hoc judge was created for the purpose of giving a party, not otherwise having upon the Court a judge of its nationality, an opportunity to join in the work of this tribunal. The evidence in this regard of the attitude of those who participated in the drafting of the original Statute of the Permanent Court of International Justice can hardly be contradicted. This has led many to assume that an ad hoc judge must be regarded as a representative of the State that appoints him and, therefore, as necessarily pre-committed to the position that that State may adopt.

6. That assumption is, in my opinion, contrary to principle and cannot be accepted. Nonetheless, consistently with the duty of impartiality by which the ad hoc judge is bound, there is still something specific that distinguishes his role. He has, I believe, the special obligation to endeavour to ensure that, so far as is reasonable, every relevant argument in favour of the party that has appointed him has been fully appreciated in the course of collegial consideration and, ultimately, is reflected — though not necessarily accepted — in any separate or dissenting opinion that he may write. It is on that basis, and in awareness that the tragedy underlying the present proceedings imposes on me an especially grave responsibility, that I approach my task.

4. The Nature of Requests for Provisional Measures

7. Counsel for Yugoslavia, during his address to the Court in the course of the hearings on the first request, described the proceedings as "incidental", coupling with that description the adjectives "summary" and "peremptory", seemingly with the implication that the Court should limit as much as possible its consideration of the substance of the case and that whatever the Court might say or order could have little or no lasting legal effect. In the same line of thought, counsel for Yugoslavia further contended that Bosnia-Herzegovina was really asking, in the guise of a request for provisional measures, for "an interim judgment on the merits of the case" — something which he appeared to consider was not permissible. A few words are, therefore, needed about the character of requests and orders for provisional measures.

8. Nowhere in the Statute or Rules of Court are requests for provisional measures specifically described as "incidental". The only use of that word is in the heading of Section D of Part III of the Rules, "Incidental Proceedings". This covers not only interim protection but also preliminary objections, counter-claims, intervention, special references to the Court and discontinuance. About such matters as preliminary objections, counter-claims and intervention there is evidently nothing of an insub-[p 410] stantial, summary or superficial nature. They involve material points of gravity to which the Court at the appropriate time gives full and detailed consideration. Orders of the Court relating to them are binding. Between these items and requests for interim protection there is no difference in kind except in the necessarily threshold quality of the latter, the urgency that attaches to them, as is recognized in Article 74 of the Rules, and, possibly, the degree to which the measures indicated are binding.

9. In practical terms it is, of course, inherent in the urgent treatment of a request for provisional measures that normally it is not possible to treat the jurisdictional and substantive issues as extensively as in other incidental proceedings. For one thing, much of the evidence put before the Court is likely to be ex parte and the Respondent may not be able to react to it in detail. But there is nothing in the Statute or the Rules that prevents the Court from dealing as fully as it wishes with requests for provisional measures. Nor is this situation changed by the oft-employed formula, repeated in paragraph 60 of the Court's Order of today's date, to the effect that the decision given upon the request "in no way prejudges" issues of jurisdiction, admissibility or substance. This means that the Court reserves to the parties the right to return to such issues at the merits stage of the case and to itself the right to amend its findings of fact or its holdings of law in the light of such later consideration. But it does not mean that the Court is precluded, in dealing with a request for provisional measures, from reaching relevant findings of fact or holdings of law which will remain valid and effective unless and until subsequently altered. It is in this sense that one should also read the statement, in paragraph 48 of today's Order, that the Court "cannot make definitive findings of fact or of imputability" and that:

"the right of each Party to dispute the facts alleged against it, to challenge the attribution to it of responsibility for these facts, and to submit arguments in respect of the merits, must remain unaffected by the Court's decision".

In other words, the qualification or limitation upon the effect of the Court's findings at the interim protection stage is procedural rather than substantive. Though such findings may later be changed, they are not in the interim ineffective nor should they be disregarded.

10. This analysis is to some extent foreshadowed and supported by certain observations of Judge Jimenez de Aréchaga in his declaration in the Nuclear Tests case. Though addressed only to the question of jurisdiction, [p 411] his remarks are no less applicable to other questions of law and fact that may arise in the course of the proceedings on a request for provisional measures:

"[I]n view of the urgent character of the decision on provisional measures, it is obvious that the Court cannot make its answer dependent on a previous collective determination by means of a judgment of the question of its jurisdiction on the merits.

This situation places upon each Member of the Court the duty to make, at this stage, an appreciation of whether — in the light of the grounds invoked and of the other materials before him — the Court will possess jurisdiction to entertain the merits of the dispute. From a subjective point of view, such an appreciation or estimation cannot be fairly described as a mere preliminary or even cursory examination of the jurisdictional issue: on the contrary, one must be satisfied that this basic question of the Court's jurisdiction has received the fullest possible attention which one is able to give to it within the limits of time and of materials available for that purpose." (I.C.J. Reports 1973, p. 107; emphasis added.)

11. The freedom of the Court to reach conclusions of fact or law when considering requests for provisional measures is not affected by the argument (as presented by the Respondent) that the particular request is really a request for an interim judgment. The Respondent has in this connection invoked the refusal by the Permanent Court of International Justice of a request by Germany in the Factory at Chorzow case (P.C.I.J., Series A, No. 12, p. 10) for an interim payment of 30 million marks, in a case arising out of the expropriation of an industrial undertaking in breach of a treaty, on the ground that the request was "designed to obtain an interim judgment on the merits". However, this case was distinguished in the hostages case (United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1979, p. 7) in which the United States sought in its original application both the release of the hostages and reparation for their detention. In its request for provisional measures the United States sought the immediate release of the hostages. The Court made the requested Order uninhibited by the fact that it was thereby ordering something that substantially preempted the remedy sought in the main case.

12. The Respondent has also raised the objection that "the Applicant seems to be trying to reopen matters already decided". It is true that there is a significant measure of overlap between what the Applicant sought, and to some extent obtained, in its request of 20 March 1993 and the request it made on 27 July 1993. But whatever may be the degree of overlap — and it is not total — the question is not really simpliciter whether the subject-matter of the first request may be revisited. It is, rather, the question of whether that subject-matter may be revisited in the light of clear[p 412] evidence that the Respondent has continued the course of conduct which the Court has prohibited and has, therefore, acted in breach of the first Order.

13. The situation falls within the scope of Article 75, paragraph 3, of the Rules of Court, which permits the "making [of] a fresh request in the same case based on new facts" — and it has been so held by the Court in paragraph 22 of today's Order. The rejection by the then President of the Court of the second Nicaraguan request for interim measures in the Military and Paramilitary Activities in and against Nicaragua case (see I.C.J. Reports 1986, pp. 143-144, paras. 286-289) must be distinguished in the light of all the circumstances of that case. They were — especially in terms of scale, urgency and threat to human life — markedly less exigent than those in the present case.

II. JURISDICTION

14. The special circumstances attending this case suggest that some explanation is required of the general basis of the Court's operation. The Court can only act in a case if the parties, both applicant and respondent, have conferred jurisdiction upon it by some voluntary act of consent. This can be given in various forms: a treaty undertaking to that effect; a con-tracting-in to the compulsory jurisdiction of the Court under the so-called "optional clause" (Article 36 (2) of its Statute); or an acceptance of jurisdiction by a respondent through its conduct following upon a unilateral commencement of proceedings by an applicant — a method known as forum prorogatum. Whatever form the consent may take, the range of matters that the Court can then deal with is limited to the matters covered by that consent. Thus, jurisdiction conferred on the Court by the Genocide Convention can extend only to cases involving the interpretation, applica-tion or fulfilment of the Convention. Even if the complaints relate to appalling atrocities amounting to violations of, for example, the Geneva Conventions on the Protection of Victims of War, of the various human rights conventions or even of principles of customary international law, they cannot be brought before the Court on the basis of the jurisdictional provision in the Genocide Convention unless they are also acts covered by the terms of that Convention.

15. The possibility must be recognized and accepted that there are a number — alas, a very great number — of substantive rights protected by international law which, for want of a suitable jurisdictional link to the Court, cannot be made the subject of consideration and decision by it. This is not the fault of the Court. It is simply a reflection of the present unsatisfactory state of the international legal system — a reflection, many [p 413] consider, of a lack of appropriate political will on the part of States, not a reflection of any shortcoming in the Court. If jurisdiction exists, the Court will exercise it. That, after all, is what the Court is for.

16. In the present case, the Applicant has invoked at different times a number of different possible sources of jurisdiction: (1) in its original request, it referred to Article IX of the Genocide Convention; (2) in the same document it also relied upon a letter dated 8 June 1992 from the Presidents of the Republic of Montenegro and of the Republic of Serbia to the President of the Arbitration Commission of the International Conference for Peace in Yugoslavia; (3) in the context of its present request the Applicant added that,

"jurisdiction ... is also grounded in the Customary and Conventional International Laws of War and International Humanitarian Law, including but not limited to the four Geneva Conventions of 1949, the First Additional Protocol of 1977, the Hague Regulations on Land Warfare of 1907, and the Nuremberg Charter";

and (4), also in the course of the present proceedings, reference was made to the Treaty of Saint-Germain-en-Laye of 1919 providing for the protection of minorities in the Kingdom of the Serbs, Croats and Slovenes. Further to the four grounds mentioned above, there is (5) the matter of the possible operation of forum prorogatum, as raised in the question put to both Parties during the course of the hearings on 26 August 1993. I shall deal with each of these items in turn.

1. The Genocide Convention

17. In paragraph 26 of its Order of 8 April 1993 the Court accepted that Article IX of the Genocide Convention appears to afford a basis on which the jurisdiction of the Court might be founded. At the same time, the Court made it clear that this was only "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". The Court's Order of today's date confirms that decision. I agree with this conclusion but would wish to add a further consid-eration. In determining whether particular acts or omissions amount to " 'genocide or ... any of the other acts enumerated in Article III of the [Genocide] Convention" it must be borne in mind that conduct which may prima facie appear not to fall within those categories may in truth do so if such conduct can in fact be shown to cause, or contribute to, with sufficient directness, genocide or genocidal activity. [p 414]

2. The Letter of 8 June 1992

18. This letter was considered by the Court in paragraphs 27-32 of its Order of 8 April 1993. The Court concluded that it was "unable to regard the letter of 8 June 1992 as constituting a prima facie basis of jurisdiction in the present case". Nonetheless, the Applicant again invoked this letter in the present proceedings. The arguments which it has adduced in this connection do not appear to provide any basis for altering the reasoning or conclusion of the Court in its Order of 8 April 1993. The Court has so held in paragraph 32 of today's Order and I agree.


3. The Reference to Customary and Conventional Laws of War, etc.

19. Recourse by the Applicant to customary international law and the treaties on the laws of war, etc., as a ground of jurisdiction appears to be founded on some misconception. The customary international law and the treaties invoked by the Applicant, though no doubt pertinent in a situa-tion of international hostilities as a source of substantive rules of law applicable to the conduct of the warring parties, can serve only that purpose. The mere existence of relevant substantive rules of law does not by itself confer in respect of matters governed by them any jurisdiction what-soever upon any international tribunal. As already stated, there are many rules of law the operation of which is not supplemented by any provision conferring jurisdiction upon any international tribunal. The provisions cited by the Applicant fall into this category. The Court so holds in paragraph 33 of today's Order and I agree. The only text mentioned by the Applicant which had any jurisdictional function was the Nuremberg Charter. That document established the jurisdiction of the International Military Tribunal in respect of the trial of major war criminals after the Second World War. Its function has been exhausted for nearly half a century and it can play no role in the present dispute.

4. The "Minorities" Treaty, 1919

20. Lastly, the Applicant, in an amendment to its second request filed on 6 August 1993, introduced as a ground of jurisdiction in the present case the "Treaty between the Allied and Associated Powers and the Kingdom of the Serbs, Croats and Slovenes (Protection of Minorities)" signed at Saint-Germain-en-Laye on 10 September 1919. This called for the pro-tection of the minorities in Yugoslavia and provided for the compulsory settlement of disputes by the Permanent Court of International Justice. [p 415]

21. There are several difficulties about recourse to this Treaty in the present case. The Court refers to some of them in paragraphs 29-31 of today's Order. Here, it is sufficient to mention two. The first is substantive. The specific obligation under the Treaty mentioned by the Applicant is contained in Article 2:

"The Serb-Croat-Slovene State undertakes to assure full and complete protection of life and liberty to all inhabitants of the Kingdom without distinction of birth, nationality, language, race or religion."

The discharge of this obligation is limited territorially to "inhabitants of the Kingdom". Although there are other possibly pertinent provisions in the Treaty which are not expressed in terms of "all inhabitants of the Kingdom", they nonetheless refer to "Serb-Croat-Slovene nationals". Clearly the people of Bosnia-Herzegovina, principally the Bosnian Muslims, whose rights are the subject of the present proceedings, are not "inhabitants of the Kingdom" nor are they "Serb-Croat-Slovene nationals".
22. The second difficulty, though procedural in character, is no less formidable. Article 11 of the Treaty confers jurisdiction upon the Permanent Court of International Justice in respect of disputes "of opinion as to questions of law or fact arising out of these Articles". The Articles in question include those relating to the protection of minorities. At the same time, however, the right to bring proceedings under the Articles is limited to "any one of the Principal Allied and Associated Powers or any other Power, a member of the Council of the League of Nations". The Applicant in this case clearly does not fall into either of these categories.

23. The Applicant has sought to overcome this procedural obstacle on the basis of the provision in Article 16 of the Treaty that

"All rights and privileges accorded by the foregoing Articles to the Allied and Associated Powers shall be accorded equally to all States Members of the League of Nations."

The Applicant argues that the fact that this Article appears at the end of Chapter II of the Treaty dealing with the commercial and other matters does not mean that its operation is limited to the matters covered in that Chapter, the more so as the Article contains provisions on language and ratification which evidently apply to the Treaty as a whole. In my view, if the intention had been to confer upon all Members of the League of Nations the same procedural rights as Article 11 confers upon the Principal Allied and Associated Powers in respect of the minorities provisions of Chapter I, the most likely place in which that would have been done would have been Article 11 itself, not Article 16. But even if the applicability of Article 16 is conceded this does not help the Applicant. It still remains in the position of not having been a Member of the League of Nations. [p 416]

5. Forum Prorogatum

24. There remains for consideration in connection with jurisdiction the question of forum prorogatum. This is the possibility that if State A commences proceedings against State B on a non-existent or defective jurisdictional basis, State B can remedy the situation by conduct amounting to an acceptance of the jurisdiction of the Court. The principal illustration of that process is the Corfu Channel case (Preliminary Objection, I.C.J. Reports 1947-1948, pp. 27-28) in which the United Kingdom unilaterally instituted proceedings against Albania on the basis of a recommendation of the Security Council. Albania, though entering an objection to the Court's jurisdiction on the ground that the case should have been referred to the Court by special agreement, nevertheless stated in the same document that it accepted the jurisdiction of the Court for that case. The Court held that that acceptance was effective as a "voluntary and indis-putable acceptance of the Court's jurisdiction" and observed also that "neither the Statute nor the Rules require that this consent should be expressed in any particular form" (ibid., p. 27).

25. The episode which gives rise to the question of whether forum prorogatum provides any basis for an extension of the Court's jurisdiction in this case is the letter dated 1 April 1993 from Mr. Vladislav Jovanovic, Federal Minister for Foreign Affairs of Yugoslavia, to the Registrar of the Court. Paragraph 4 reads as follows:

"The Yugoslav Government welcomes the readiness of the International Court of Justice to discuss the need of ordering provisional measures to bring to an end inter-ethnic and inter-religious armed conflicts within the territory of the 'Republic of Bosnia and Herzegovina', and in this context, it 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:

[i] 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;

[ii] 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;

[iii] to instruct the authorities loyal to A. Izetbegovic to close immediately and disband all prisons and detention camps in the [p 417]'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;

[iv] 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;

[v] 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;

[vi] 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 related to the delivery of humanitarian aid, against the Serb population in the 'Republic of Bosnia and Herzegovina'."

26. As can be seen, a number of the proposals in the paragraph relate to matters that cannot be described as "genocide", as genocidally related or as necessarily causally linked with genocide. This is true of items [i], [iii], [iv] and [v]. As for item [ii], the requirement of respect for the Geneva Conventions, though overlapping with a requirement that genocide should not be committed, goes wider than genocide; and the same is true of the reference to discrimination in item [vi].
27. The Court is bound to ask itself, what could be the jurisdictional basis for such proposals by the Respondent? The Respondent did not, in its letter of 1 April 1993, make any reference to the question of jurisdiction. Yet, if the proposals were seriously meant, they can only have been put forward on the basis of some supposed ground of jurisdiction. There are only two possibilities. One is the Genocide Convention itself, in which case the Respondent was putting a very broad construction on the definition of genocide and on the scope of Article IX of the Convention. The other is that the proposals may be seen as having been made in response to the presentation by the Applicant of certain requests which went beyond the scope of the Convention. Either way, though, the conduct of the Respondent seems to enlarge the jurisdiction of the Court beyond the range of matters strictly covered by an objective reading of Article IX of the Genocide Convention. The concordant conduct of the two Parties —[p 418] that of the Applicant in seeking by the nature of its requests to extend the jurisdiction of the Court beyond matters strictly covered by the Genocide Convention and that of the Respondent in doing something similar — amounts to an acceptance of the Court's jurisdiction by conduct to the extent that the scope of the subject-matter of the two requests coincide. That is to say, the scope of the jurisdiction is determined by the narrower of the two claims, in this case, that of the Respondent.

28. Because this aspect of the case had not been specifically addressed by either of the Parties, I considered it desirable to ascertain the views of the Parties and accordingly put to them the following questions:

"(A) Do all the requests in the letter [of 1 April 1993] fall within the scope of the prevention of 'genocide' as is defined in Article II of the Genocide Convention?

(B) If the answer to Question 1 is No, which requests are regarded as not falling within that definition?

(C) If the answer No is given in relation to any of the requests, on what basis is the Court said to have jurisdiction in respect of them and, in particular, is the concept of forum prorogatum relevant here?"

29. The Applicant replied that "the Respondent actually broadens jurisdiction beyond the subject-matter covered by Articles II and IX of the Genocide Convention" and contended that:

"the Respondent's acceptance of this jurisdictional setting for the first round of provisional measures . . . logically extends to any following provisional measures which are requested within the framework of the proceedings instituted by the 20 March 1993 Application".

The Applicant concluded:

"In line with established jurisprudence of this Court, it is clear that this statement establishes jurisdiction with respect to all aspects of the situation in the Republic of Bosnia and Herzegovina connected with armed conflicts concerning the territory of the Republic of Bosnia and Herzegovina."
30. The Respondent replied as follows: "The reply is contained in the Observations of FR of Yugoslavia dated 23 August 1993 at pages 13 to 16 in paragraphs 20 to 24." Close study of the passages referred to reveals no reply to the first and second of the questions put to the Parties. The third question is answered only indirectly, in paragraphs 21 and 23. In paragraph 21 the Respondent stated:

"It is obvious that, by requiring provisional measures on 1 April 1993, the intention of the FR of Yugoslavia was not to accept the [p 419] jurisdiction of the Court whatsoever, or to an extent beyond what is strictly stipulated in the Genocide Convention. The argument that the FR of Yugoslavia is estopped from raising any questions concerning the jurisdiction of the Court is obviously absolutely without foundation."

The Respondent then quoted, in paragraph 22, a passage from the case concerning the Anglo-Iranian Oil Co., Preliminary Objection, in which the Court had rejected a submission made by the United Kingdom Government to the effect:

"17. That the Iranian Government, having in its conclusions submitted to the Court for decision several questions which are not objections to the jurisdiction of the Court and which could only be decided if the Court had jurisdiction, has by this action conferred jurisdiction upon the Court on the basis of the principle of forum prorogatum." (I.C.J. Reports 1952, p. 101.)

31. The passage quoted by the Respondent is part of a longer paragraph the continuation of which reads as follows:

"Having filed a Preliminary Objection for the purpose of disputing the jurisdiction, it [the Government of Iran] has throughout the proceedings maintained that Objection. It is true that it has submitted other Objections which have no direct bearing on the question of jurisdiction. But they are clearly designed as measures of defence which it would be necessary to examine only if Iran's Objection to the jurisdiction were rejected. No element of consent can be deduced from such conduct on the part of the Government of Iran. Consequently, the Submission of the United Kingdom on this point cannot be accepted." (Ibid., p. 114; emphasis added.)

32. It is the content of the words emphasized above that distinguishes the Anglo-Iranian Oil Co. case so plainly from the present one. There, the "objections" on which the United Kingdom founded its claim of forum prorogatum were "clearly designed as measures of defence", the examination of which was seen as contingent upon the rejection of Iran's objection to the jurisdiction. By contrast, in the present case, the matters raised in the provisional measures which the Respondent proposed in its letter of 1 April 1993 were not contingent at all, but were assertive requests. They were not negative in their purpose, i.e., aimed at dissuading the Court from doing something. Rather, they were positive in their object, i.e., aimed at persuading the Court to take specific measures. And those measures, as just stated, were not ones that on their face fell within the scope of the Genocide Convention. Some basis must, therefore, be identified by reference to which their introduction into the proceedings can be justified. [p 420]
33. The Respondent has reminded the Court of the statement made in the Anglo-Iranian Oil Co. case:

"The principle of forum prorogatum, if it could be applied to the present case, would have to be based on some conduct or statement of the Government of Iran which involves an element of consent regarding the jurisdiction of the Court. But that Government has consistently denied the jurisdiction of the Court." (I.C.J. Reports 1952,p. 114.)

The Respondent has then gone on to say:

"The FR of Yugoslavia does not accept the jurisdiction of the Court in relation to customary and conventional international law of war and international humanitarian law, including the four Geneva Conventions of 1949, their First Additional Protocol of 1977, the Hague Regulations on Land Warfare of 1907 and Principles established by the Nuremberg Charter and Judgment."

34. The question is, therefore, whether the denial by the Respondent of the jurisdiction of the Court on any basis other than Article IX of the Genocide Convention is sufficient to override conduct of the Respondent which appears to be consistent only with the existence of some jurisdiction of the Court on a basis other than that of the Genocide Convention. In particular, does the above-quoted sentence amount to a sufficient denial of the jurisdiction of the Court to negative the effect of the Respondent's requests in its letter of 1 April 1993 which appear, in the words of the Court's Order of 22 July 1952, to involve "an element of consent regarding the jurisdiction of the Court"? In my view, the insistence by the Respondent that Article IX of the Genocide Convention is the sole source of the Court's jurisdiction is not persuasive. Were this insistence valid, it would be impossible for the Respondent to justify its clear requests for measures which fall outside the coverage of the Convention. Yet, these requests were neither brief nor accidental. They were deliberately presented to the Court as requests to which the Respondent wished the Court to accede. The Respondent cannot blow hot and cold. It cannot ask the Court to go beyond the limits of the Genocide Convention and simultaneously request the Court to limit its jurisdiction to that Convention.

35. It thus becomes necessary for the Court either to attempt a reconciliation of the two contradictory approaches or to choose between them. In my opinion, in deciding upon the relationship between the particular and the general, the general cannot be permitted entirely (if at all) to override the particular. The solution lies, therefore, in qualifying the insistence of the Respondent that the Court's jurisdiction is dependent solely upon Article IX of the Genocide Convention by acknowledging that the Respondent has expanded the jurisdiction of the Court to the extent that [p 421] its specific requests overlap in kind with those of the Applicant. In effect, the Applicant, in requesting measures that pass beyond the limits of the Genocide Convention, has made an offer to the Respondent to extend the jurisdiction of the Court to the category of subject-matter covered by that extension. The Respondent, by proposing counter-measures which in some respects resemble the proposals of the Applicant, has within those limits accepted the offer of the Applicant so to extend the jurisdiction of the Court.

36. The Court's conclusion in paragraph 34 of today's Order that the Yugoslav communication of 1 April 1993 "cannot, even prima facie, be interpreted as 'an unequivocal indication' of a 'voluntary and indisputable' acceptance of the Court's jurisdiction" is evidently influenced by the consideration there mentioned that "the provisional measure requested by Yugoslavia in a subsequent request, dated 9 August 1993 ..., was directed solely to protection of asserted rights under the Genocide Convention". The reference thus made to what may be seen as a withdrawal by the Respondent of its request for measures going beyond the scope of the Genocide Convention suggests that the difference between the Court and the opinion here expressed may lie principally in the effect to be attributed to the request of 9 August 1993. I regard that communication as insufficient to negative the effect of the Respondent's communication of 1 April 1993. To this limited extent, therefore, and to my regret, I find myself unable to agree with the Court.

37. The existence of jurisdiction on the basis of forum prorogatum has no impact on the conclusions that I reach in relation to the ten specific measures sought in the Applicant's second request. However, it does form the basis for the additional measures which, in the exercise of the power given in Article 75 (1) of the Rules of Court to indicate measures proprio motu, I set out in paragraph 124 below. These are expressed in terms which largely reflect, in the form of an indication to both Parties, the terms of the measures sought by Yugoslavia in its communication to the Court of 1 April 1993.

III. The Substance of the Request

1. The Nature of the Evidence to be Taken into Consideration in Relation to Requests for Provisional Measures of Protection

38. When the Court made its Order of 8 April 1993 it did so without committing itself to any specific findings of fact, limiting itself to the statement that "there is a grave risk of acts of genocide being committed" (para. 45). In the Order of today's date the Court has gone somewhat [p 422] further by "taking into account the development of the situation in Bosnia-Herzegovina" (para. 22), observing 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 flagrantly conflict with moral law and the spirit and aims of the United Nations" (para. 52), noting that "the grave risk" which the Court apprehended in its Order of 8 April 1993 of "action being taken which may aggravate or extend the existing dispute ... has been deepened by the persistence of conflicts on the territory of Bosnia-Herzegovina and the commission of heinous acts in the course of those conflicts" (para. 53) and stating that it "is not satisfied that all that might have been done has been done to prevent the commission of the crime of genocide in the territory of Bosnia-Herzegovina, and to ensure that no action is taken which may aggravate or extend the existing dispute or render it more difficult of solution" (para. 57).

39. In my view, if the Court considered that it had before it sufficient material on the basis of which it could make the generalized findings of fact set out above, it also had before it sufficient material to set out in greater detail the grim and gruesome realities of the situation which alone can explain why the Applicant has returned to the Court with this second request for interim measures. It will already be apparent that in my opinion the additional accumulation of evidence since the date of the first Order and the generally uniform content of the reports as well as their undeniable character, necessitates a fuller statement of the facts. As a necessary preliminary to this, attention must be given to the nature of the evidence which the Court may properly take into account at this stage of the proceedings.

40. In most of the previous requests for provisional measures there has been relatively little disagreement about the facts, the principal issue (the question of jurisdiction apart) being whether, on the facts as known, an indication of such measures was required. Questions of evidence were, therefore, not in the forefront of the discussion. In the present case, Bosnia-Herzegovina has produced much evidence of the events which it alleges, all of it in writing and most of it in secondary form. Yugoslavia has produced no evidence to rebut it.

41. The question is how much account should be taken of this evidence. There is no fundamental legal difference in the rules of evidence applicable to the consideration of the merits of a case and those applicable in proceedings relating to provisional measures. There is, however, a practi-cal difference in that in the latter there may be less time for the applicant to prepare its evidence in the most cogent form, or for critical scrutiny of that evidence by the respondent and the Court, than there is in the extended merits stage of a case. But it does not follow that evidence produced at the [p 423] provisional measures stage is a priori to be treated as less adequate or less acceptable than evidence produced at the merits stage or that it is incapable of sustaining more than the most generalized findings of fact.

42. In the present case, the written evidence adduced by Bosnia-Herzegovina falls into the following categories: written primary evidence, such statements directly attributable to the Yugoslavia authorities, statements by United Nations, UNHCR or EC officials who have themselves been in the area, or newspaper reports by journalists who were eye-witnesses of events; and written secondary evidence, such as statements of fact adopted by organs of the United Nations, for example, in the form of preambular paragraphs to resolutions of the General Assembly or the Security Council. There is no reason why the Court should not take both such categories of evidence into account, giving more or less weight to particular items, according to the particular circumstances. The doctrine of judicial notice is known in many legal systems. Tribunals may not and do not close their eyes to facts that stare them in the face. In the Military and Paramilitary Activities in and against Nicaragua case the Court recalled its own reference in the case of the United States Diplomatic and Consular Staff in Tehran to facts which:

"are, for the most part, matters of public knowledge which have received extensive coverage in the world press and in radio and television broadcasts from Iran and other countries (I.C.J. Reports 1980, p. 9, para. 12)" (I.C.J. Reports 1986, pp. 40-41, para. 63).

On an earlier occasion, though not speaking in terms of "judicial notice", the Court, in the Fisheries case, had had recourse to the concept of "notoriety of facts" (I.CJ. Reports 1951, pp. 138-139).

43. What matters for present purposes is the general concordance of evidence. This consideration also weighed with the Court in its decisions in 1980 and 1986:
"On the basis of information, including press and broadcast material, which was 'wholly consistent and concordant as to the main facts and circumstances of the case', the Court was able to declare that it was satisfied that the allegations of fact were well-founded." (I.C.J. Reports 1986, p. 41, para. 63, citing I.C.J. Reports 1980,p. 10, para. 13.)

In this case, the evidence all points conclusively in one direction. Moreover, the Respondent has not sought in this Court to deny that atrocities of the character and on the scale described have occurred.

44. Two additional considerations are relevant here. The first is that the present proceedings do not relate to the indictment of named individuals [p 424] upon criminal charges in relation to which guilt has to be proved beyond reasonable doubt.

45. The second consideration has a particular bearing on the question of the complicity of the Respondent in rendering assistance to the Serbian forces in Bosnia-Herzegovina. As the bulk of the accessory conduct in question must necessarily have originated within the territory of the Respondent, it is obvious that it is beyond the power of the Applicant to obtain absolute proof of it. This being so, the situation resembles that in the Corfu Channel case (Merits, I.C.J. Reports 1949, p. 4) in which, at page 18, the Court discussed the consequences flowing from the inability of a party to secure evidence from areas outside its control:

"[T]he fact of this exclusive territorial control exercised by a State within its frontiers has a bearing upon the methods of proof available to establish the knowledge of that State as to such events. By reason of this exclusive control, the other State, the victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility. Such a State should be allowed a more liberal recourse to inferences of fact and circumstantial evidence. This indirect evidence is admitted in all systems of law, and its use is recognized by international decisions. It must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion." (Emphasis added.)


46. I will, therefore, in this opinion take into account those of the items presented in the Applicant's narrative that are supported by appropriate evidence. Assertions made by Yugoslavia will be approached in the same way. If supported by appropriate evidence they will be accepted. Where there is a conflict of evidence then, of course, it will be necessary to make a choice by reference to openly stated and objectively applied criteria.

2. The Importance of Stating Essential Facts, Albeit in Summary Form

47. To refrain from confronting the facts simply because the proceedings are ones for provisional measures would suggest a degree of formalism inconsistent with one of the tasks of the international judicial process in circumstances so unusual as those involved here. In the present case, so public are the facts and so urgent is the need which they occasion that, to all intents and purposes, no clear line can be drawn between the grant of provisional measures and the grant of the remedy sought in the main action. A denial of sufficient provisional measures now may well, in practice, be tantamount to a negation of the rights claimed in the main action. If, as has been said, the grant of interim measures should not prejudice the [p 425] outcome of the consideration of the merits, so equally it must be recognized that the denial of interim measures also should not prejudice the outcome of the consideration of the merits. It is, therefore, a matter of necessity to examine the facts to which the measures ordered by the Court relate.

48. There is also a reason of policy for looking at the facts — a policy which the principal judicial organ of the United Nations can properly take into account. As is well known, the justification for the war crimes trials following the Second World War was seen to lie not solely in the requirement that the perpetrators of heinous crimes should be brought to justice. It lay also in the belief in the necessity of placing on historical record the character and extent of those crimes so that they should never be forgotten and that the recollection of the sacrifice of the victims should not be dimmed by time. The establishment and, it may be hoped, the activity of a United Nations War Crimes Tribunal for former Yugoslavia may in due course perform a similar function in relation to the events within the area previously comprised within that State. But this possibility does not, in my view, relieve this Court of the duty of explaining, even in the context of a request for provisional measures of protection, some of the basic features of the situation. It may, of course, be said that such a record will appear in the Court's treatment of the case at the merits stage. However, as has been pointed out on behalf of Bosnia-Herzegovina, there is a distinct possibility that the merits stage of these proceedings will not be reached. What will those in later years who are not well instructed in our contemporary history understand of the real thrust and significance of the Court's Order if they cannot read therein some narrative of the circumstances which have led to it?

49. At the same time, it must be realized that, important though the record is, limitations of time, space and immediate relevance preclude a comprehensive or even extended narrative of events. What follows is necessarily sharply focused on developments pertinent to the litigation instituted by the Applicant and is brief even at the risk of some oversimplification.

3. Some Pertinent Background
50. Before 1990 Yugoslavia, or the Socialist Federal Republic of Yugoslavia as it was then called (and as the Respondent still calls itself), consisted of six constituent republics — Serbia, Montenegro, Slovenia, Croatia, Bosnia-Herzegovina and Macedonia — together with two autonomous provinces. Within its population of some 23 million persons, the Serbs were the largest element numbering over 8 million persons, of whom three-quarters lived in Serbia. In Bosnia-Herzegovina there lived some 1.9 million Muslims, 1.3 million Serbs and 0.75 million Croats. [p 426]

51. In the autumn of 1990 the power of the central authorities in Yugoslavia began to disintegrate in the face of separatist tendencies in Slovenia, Croatia, Bosnia-Herzegovina and Macedonia. On 25 June 1991 Slovenia and Croatia declared their independence. Soon afterwards the federal authorities began military action to suppress the Slovenian secession and fighting broke out in Croatia, especially in areas principally inhabited by Serbs.

52. The present Government of Yugoslavia is essentially a Serbian authority closely tied to the Government of Serbia; and the Yugoslav People's Army (JNA) today is a Serbian army controlled by the Serbian authorities of the present Government of Yugoslavia and fully supportive of Serbian aims.

53. The general identification of the position of the federal Yugoslavia authorities with that of the Serbs was demonstrated by a statement made in the Assembly of the Socialist Federal Republic of Yugoslavia on 19 March 1992 by Dr. B. Jovic, who had earlier been the Serbian member of the Yugoslav Presidency:

"The Serbian people... demanded respect and protection of their legitimate national and civil rights. When Croatia decided to secede from Yugoslavia and form its own independent State, the Serbs inhabiting their ethnical territories in this republic decided to break away from Croatia and remain within Yugoslavia...

Faced with the serious danger of a more widespread conflict, the Presidency of the Socialist Federal Republic of Yugoslavia instructed the Yugoslav People's Army to prevent such conflicts by standing as a neutral force between the parties in conflict. However, the Croatian authorities, instead of accepting such a mission of the Yugoslav People's Army openly attacked not only the Serbian people, which it branded as a band of outlaws, but also ... the Yugoslav People's Army which it termed an army of occupation. This is how war was thrust upon Yugoslavia. In such a situation it was essential to protect the Serbian people from extermination."

What was there said about the connection between the Yugoslav Government and the Serbs in Croatia appears to be no less true in relation to Bosnia-Herzegovina.

54. International awareness of this relationship is reflected in the demand made by the Security Council in paragraphs 3 and 4 of resolution 752 (1992) on 15 May 1992 "that all forms of interference from outside Bosnia-Herzegovina, including by units of the Yugoslav People's Army (JNA), as well as elements of the Croatian Army, cease immediately ..." and "that those units of the Yugoslav People's Army (JNA) and elements of the Croatian Army now in Bosnia-Herzegovina must... be withdrawn".

55. For virtually 18 months now, from February 1992 to the present [p 427] date, fighting has continued in Bosnia-Herzegovina between the Serbs there, supported by Serbs in Serbia, by the Government of the Socialist Federal Republic of Yugoslavia and by the Yugoslav National Army, on the one side, and the Bosnian Government and its supporters, mainly Muslims, on the other. During this period the Muslims in Bosnia-Herzegovina have been exposed to slaughter and injury, to rape, torture and starvation, to forced expulsion and to the destruction of their homes on an appalling scale — all directed against them because they are Muslims. Town after town and village after village with exclusively or dominantly Muslim populations have been attacked and the Muslim population either killed or expelled by the Serbs: Goradze, Srebrenica, Bihac, Olovo, Kladanj, Tuzla, Banja Luka, Zepa, Sandzak, Mostar, Sarajevo, Maglaj, Konijc, Shippergai, Brcko — to name only those that have figured most prominently in the reports.

56. The involvement of the Government of Yugoslavia (Serbia and Montenegro) or of the Socialist Federal Republic of Yugoslavia in all of this activity cannot be gainsaid and has been internationally noted. In the preamble to General Assembly resolution 47/121 of 18 December 1992 there appears an assessment of the Yugoslav Government's role that received the positive support of 102 Members of the United Nations and which, though 57 Members abstained in the vote, attracted no negative votes:

"Strongly condemning Serbia and Montenegro and their surrogates in the Republic of Bosnia and Herzegovina for their continued noncompliance with all relevant United Nations resolutions,

Deeply regretting that the sanctions imposed by the Security Council have not had the desired effect of halting the aggressive acts by Serbian and Montenegrin irregular forces and the direct and indirect support of the Yugoslav People's Army for the aggressive acts in the Republic of Bosnia and Herzegovina..." (emphasis added).

57. Similarly, in the material provided by Bosnia-Herzegovina in its current request for the indication of provisional measures there are some 16 indications of Yugoslav involvement in Serbian activity in Bosnia-Herzegovina of which the most important is a clear acknowledgment to this effect made by Yugoslavia itself. But, first, the earlier indications:

— On 16 April 1993 short-wave radio operators in Srebrenica reported that former Yugoslavian army troops crossed the Drina River separating Bosnia from Serbia and mounted their own attack on Srebrenica.

— On 18 April 1993 the US Ambassador to the UN, Mrs. Madeleine Albright, was reported as having said that the sanctions imposed by [p 428] the UN on Yugoslavia were a means of bringing home to the Bosnian Serbs and their allies in Serbia and Montenegro the price they would have to pay for their genocidal practices.

— On 19 April 1993 Lord Owen, the Mediator appointed by the European Community, was reported as having confirmed that supplies to the Bosnian Serbs were coming through Belgrade and suggested selective bombing strikes to prevent Belgrade from giving the Bosnian Serbs logistical support.

— On 20 April 1993 Senator Biden, a US Senator, referred in the US Senate Foreign Relations Committee to intelligence reports indicating that the Yugoslav National Army in Serbia was "directly responsible for at least part of the shelling of Srebrenica".
— On 27 April Lord Owen was reported as saying that "If Yugoslavia applied the UN resolutions and cut the Bosnian Serbs from the supply sources such a step could lead to peace fairly quickly." (Emphasis added.)

58. On or about 8 May 1993 two communiques were issued by, respectively, the Government of the Republic of Serbia and the Government of Yugoslavia (Serbia and Montenegro) which contained direct and concrete statements of the involvement of those two, well-nigh indistinguishable, authorities in the provision of arms and equipment to the Bosnian Serbs.

59. The communique of the Government of Serbia said, inter alia:
"Firmly believing that a just battle for freedom and the equality of the Serbian people is being conducted in the Serb Republic [i.e., the so-called "Republic of Srpska" proclaimed by the Bosnian Serbs within Bosnia-Herzegovina], the Republic of Serbia has been unreservedly and generously helping the Serb Republic, in spite of the enormous problems it had to face due to the sanctions introduced against it by the UN Security Council.
………………………………………………………………………………………………

Since the conditions for space [sic. Query, peace] have been met, the Government also agreed that any further economic depletion of the Republic of Serbia is now unjustified and unsupportable, and that future aid to the Serb Republic should be limited to food and medicines in such quantities as the competent ministries will determine. The Government of the Republic of Serbia also believes that, as the conditions for establishing peace have been reached, any further aid in funds, fuel, raw materials etc., provided until now with great sacrifices by the Republic of Serbia itself, is not justified any more." [p 429]

60. The communique of the Federal Government said, inter alia:

"Bearing in mind the immediate adverse effects of UN Security Council resolution 820 on the economic power of the FRY and the social position of the majority of its citizens, the Federal Government is forced to adjust all future aid to the Republic of Srpska with its objective economic possibilities and to reduce it exclusively to contingents of food and medicaments."

61. The content of these two communiques is evidence, falling into the category of "declarations against interest" which are of special cogency (see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1986, p. 42, para. 69), that, at any rate up to the date on which the communiques were issued, the Federal Republic and the Republic of Serbia had been providing assistance to the Serbs in Bosnia in breach of the Security Council embargo.

62. Any claims that after that date such assistance must have ceased does not seem compatible with evidence of subsequent Serbian behaviour:

— On 13 May 1993 the Washington Post reported that over a period of five hours on 12 May at least a half-a-dozen large tankers and a score or more of other trucks were seen crossing Serbia to the Bosnian Serb enclosure of Bijeljina, used as a base and staging area for Serbian attacks against Bosnia. And this was said to be confirmed by "many observers".

— On 18 May 1993 CNN reported that "diplomats suggested that military supplies were still passing from the 'rump' Yugoslavia to the Bosnian Serbs".

— On 19 May 1993 The Independent reported that Serbian President Milosevic refused to allow UN observers on the Drina River because the move would highlight Belgrade's non-enforcement of a proclaimed blockade against the Bosnian Serbs. A week later the New York Times carried a similar report.
— On 23 May 1993 The Sunday Times reported that "along the narrow, winding roads of Bosanska Raca, large numbers of supplies from the rump Yugoslavia to the Bosnian Serbs was witnessed".

— Lastly, on 24 June 1993 The Independent reported that James Gow, a military specialist at King's College, University of London, considered that the Bosnian Serbs have about 60,000 troops, reinforced by up to 20,000 soldiers from the Yugoslav (Serbia and Montenegro) Army, that the Bosnian Serbs received crucial support from irregular militias [p 430] based in Serbia and that the Yugoslav (Serbia and Montenegro) Army assisted the Bosnian Serbs with helicopter missions.

63. Since May 1993 there has been evidence that the Croats in Bosnia-Herzegovina, who had previously been fighting alongside the Muslims against the Serbs, were themselves joining in the attack upon the Muslims — seemingly in fulfilment of some agreement between Serbs and Croats to divide Bosnia-Herzegovina between themselves at the expense of the Muslims. This, however, does not serve to reduce the responsibility of the Serbs, or of the Yugoslav authorities supporting them, for what they have done and are continuing to do. It merely creates a situation in which the liability of those who lend assistance to the Bosnian Croats may become involved.

64. As will readily be seen upon a comparison of the material set out in paragraphs 57-62 above with the content of the Bosnian second request for provisional measures, the content of those paragraphs has been taken from that request with little more than minor verbal changes. This is because it is the only material on this aspect of the dispute (as opposed to the accusations of genocide made by the Serbs against the Bosnians) that has been presented to the Court; and it has not been rebutted in any circumstantial detail by the Respondent. No doubt it can be said of several of the items here set out that they are only secondary reports derived from sources that are not sufficiently identified. However, some of the items, notably those attributed to Lord Owen, are not open to that criticism. And the communiques of 8 May 1993 of the Serbian and Yugoslav Government also appear to be authentic.

65. It is the overall impact of the reports taken as a whole that matters. One must ask: are the secondary reports likely to be inaccurate or falsified? What interest would the reputable newspapers in which the reports appeared have in inventing news of this kind? And why should so many invent the same news, pointing the same accusatory fingers at the same parties?

66. But even if the reports are true, do they really establish the involvement of the Respondent in the activities of the Bosnian Serbs? And even if the reports do establish such involvement, was it an involvement in genocide or genocidal activities?

4. The Involvement of the Respondent

67. As to the first of these questions, it seems impossible to avoid the conclusion that the Respondent State was involved in the actions taken by the Serbs in Bosnia-Herzegovina. Apart from the positive nature of the evidence to that effect, one is bound to ask: how could the Serbs in Bosnia-[p 431] Herzegovina have mounted a campaign of such intensity and duration if they had not received external aid ? And where could, or would, such aid have come from, if not from the Respondent State? At the very least, the effect of the evidence is to shift the burden of proof completely to the Respondent. It has made no attempt to meet this burden, even to the limited extent that would have been open to it within the framework of the proceedings for interim measures.

5. Has Genocide Been Committed?

68. In determining — even provisionally — whether genocide has been committed, the point of departure is, of course, the definition of genocide in Article II of the Genocide Convention:

"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;

(e) Forcibly transferring children of the group to another group."

69. The Yugoslav conduct alleged by the Applicant in its first request of March 1993 consisted of

"military and paramilitary activities, including the bombing and shelling of towns and villages, the destruction of houses and forced migration of civilians, and acts of violence, including execution, murder, torture and rape".

In the light of the material available to the Court in April 1993 and which has accumulated further since then, it is impossible to deny either the occurrence or the massive scale of these crimes. The evidence also indicates plainly that, in particular, the forced migration of civilians, more commonly known as "ethnic cleansing", is, in truth, part of a deliberate campaign by the Serbs to eliminate Muslim control of, and presence in, substantial parts of Bosnia-Herzegovina. Such being the case, it is difficult to regard the Serbian acts as other than acts of genocide in that they clearly fall within categories (a), (b) and (c) of the definition of genocide quoted above, they are clearly directed against an ethnical or religious group as such, and they are intended to destroy that group, if not in whole [p 432] certainly in part, to the extent necessary to ensure that that group no longer occupies the parts of Bosnia-Herzegovina coveted by the Serbs. The Respondent stands behind the Bosnian Serbs and it must, therefore, be seen as an accomplice to, if not an actual participant in, this genocidal behaviour.

70. Should there be any disposition to regard "ethnic cleansing" as no more than an aspect of a particularly vicious territorial conflict between Serbs and Muslims and, therefore, as not being carried out "with intent to destroy, in whole or in part, a[n] ... ethnical ... or religious group, as such", it must be recalled that the Respondent has itself also characterized "ethnic cleansing or comparable conduct" as genocide. In its request of 1 April 1993 (discussed in paragraphs 24-37 above in connection with forum prorogatum) the Respondent adopted a broad view of genocide by speaking (in its second proposal) of "the genocide of the Serbs" as a consequence of "the commission of very serious war crimes". Further, and more specifically, in its sixth proposal, the Respondent requested, within the framework of its assertion that the jurisdiction of the Court was limited to disputes arising under the Genocide Convention, that the Court should direct the Applicant "to put an end to ... the practice of 'ethnic cleansing'". Most recently, in the formal submissions made at the close of the hearings on 26 August 1993, the Respondent asked the Court to require the Applicant Government

"in pursuance of its obligation under the [Genocide] Convention... [to] take all measures within its power to prevent commission of the crime of genocide against the Serb ethnic group".

Since the evidence presently before the Court of such "genocide against the Serb ethnic group" is of a limited kind, and in terms of expulsion by Bosnian Muslims of Bosnian Serbs from the areas in which they were living does not approach the same order of magnitude as the expulsion of Bosnian Muslims by the Serbs, it would appear a fortiori that the Respondent also regards the "ethnic cleansing" as carried out in this conflict as a breach of Article II of the Genocide Convention.

IV. Consideration of the Measures Sought in the Current Request

71. I now turn to consider the provisional measures sought in the current request. [p 433]

1. The First Request

72. The first request is:

"That Yugoslavia (Serbia and Montenegro) must immediately cease and desist from providing, directly or indirectly, any type of support... to any nation, group [etc.] in Bosnia and Herzegovina for any reason or purpose whatsoever."

73. This request is too broad to be granted in toto. The jurisdiction of the Court has been invoked under Article IX of the Genocide Convention, the scope of which is limited to disputes relating to the interpretation, application or fulfilment of the Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, namely, conspiracy, incitement, attempt and complicity — all directly related to genocide. In so far as no other, more general ground of the Court's jurisdiction can be validly established, con-duct unrelated to genocide does not properly fall within the scope of the Application. Since this request calls for an indication of measures prohibiting certain conduct not in itself of a genocidal character, i.e., "for any reason or purpose whatsoever", it self-evidently goes beyond the limits of conduct directed towards the commission of genocide and related matters. In view of this, I would restrict the grant of the first request to genocide-related activity. The identification of such activity is dealt with in connection with the requests that follow and my conclusions appear in paragraph 122 below.

2. The Second Request

74. The second request is:

"That Yugoslavia (Serbia and Montenegro) and all of its public officials ... must immediately cease and desist from any and all efforts ... to partition, dismember, annex or incorporate the sovereign territory of Bosnia and Herzegovina."

75. In order to fall within the terms of the Genocide Convention, the Applicant must show that the conduct which it asks the Court to bring to an end and prohibit (i) is aimed at the destruction, in whole or in part, of a national, ethnical, racial or religious group; (ii) with the intent to destroy it as such in whole or in part; (iii) by killing members of the group, causing them serious bodily or mental harm, etc., as set out in Article II of the Convention. [p 434]

76. It is to be noted that the actions which the second request seeks to prevent are all limited by the words that describe their objective, i.e., "to partition, dismember, annex or incorporate the sovereign territory of Bosnia and Herzegovina".

77. Of the four kinds of groups expressly protected by Article II of the Convention — national, ethnical, racial or religious — evidently the only one that could be threatened by measures which are requested in terms of protecting the integrity of "the sovereign territory" of Bosnia and Herzegovina is a "national" group. The question is, therefore, what national group is threatened by the conduct described and whether this conduct is being carried out with intent to destroy that group.

78. Once one speaks of a "national" group defined by reference to the people resident within the territory of Bosnia-Herzegovina, one immediately excludes any "national" group that may be described by reference exclusively to a single ethnical, racial or religious qualification. The popu-lation of Bosnia-Herzegovina includes not only Muslim elements, but also Serbs, Croats and other minority religious or ethnical groups. Since the conduct which is the subject of the evidence produced by the Applicant is aimed not at all the people of Bosnia-Herzegovina, but principally at the Muslim population, it cannot be said to be aimed at the "nation", i.e., the totality of the people, that lives in the territory of that country.

79. While it would be undesirable to adopt a restrictive view of the concept of genocide as covered by the Convention, care must be taken that a treaty aimed at preventing and punishing a relatively specific evil is not converted into a device for challenging territorial change even though brought about by conflict. International law, to the extent that it can be effective in this most difficult of areas, already has available to it the necessary legal rules, in the shape principally of those that deny legal effect to territorial change brought about by aggression. It is not necessary for this purpose to invoke and overstretch the Genocide Convention. I would, therefore, deny the second request.

3. The Third Request

80. The third request is:

"That the annexation or incorporation of any sovereign territory of the Republic of Bosnia and Herzegovina by Yugoslavia (Serbia and Montenegro) by any means or for any reason shall be deemed illegal, null, and void ab initio."

81. It is beyond question that territory cannot lawfully be acquired by the aggressive use of force and that such acquisition is in theory null and void unless and until ratified by consent on the part of the State whose [p 435] territory is thereby attenuated. This has been repeatedly stated by the General Assembly and the Security Council of the United Nations, including on occasion specific reference to the conflict in Bosnia and Herzegovina, and there is no reason why the Court should not, albeit obiter, restate and confirm this fundamental rule of international law.

82. But that opinion does not necessarily extend to cover "annexation or incorporation of ... territory ... by any means or for any reason". If "annexation" is defined as "forcible seizure followed by unilateral assertion of title" then, of course, the request falls within the prohibition of the use of force for the acquisition of territory. On the other hand, if "annexation" is used in a more colloquial sense as meaning the assumption of title over territory as a result of a negotiated settlement, even one following aggression and hostilities, then it is not possible to say that the original illegal conduct of the State acquiring the territory taints permanently the transfer subsequently approved by the original sovereign. A fortiori, the same is true of the expression "incorporation" which, in normal usage, is a neutral expression not necessarily implying prior forcible action on the part of the acquiring State.

83. I have said "albeit obiter" in paragraph 81 above because the request is really a hypothetical one and, therefore, does not call for a response. Although the area of Bosnia-Herzegovina originally occupied by its Muslim population has now been significantly reduced by Serbian attacks and occupation, the Applicant has produced no evidence that "Yugoslavia (Serbia and Montenegro)", the entity named in the request, is — or will be — an annexing or incorporating power. Indeed, such evidence as falls within the sphere of public knowledge or judicial notice indicates at the present time that the Republic of Bosnia-Herzegovina is likely to remain as a State within its original territory and that the resolution of the present conflict will take the form of a redistribution of territory between the Muslim, Serb and Croat populations within that territory.

4. The Fourth Request

84. The fourth request is:

"That the Government of Bosnia and Herzegovina must have the means 'to prevent' the commission of acts of genocide against its own People as required by Article I of the Genocide Convention."

85. It is convenient to approach this request with some analysis of the duties and rights created by Article I of the Genocide Convention wherein the Contracting Parties: [p 436] "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".

86. The duty to "prevent" genocide is a duty that rests upon all parties and is a duty owed by each party to every other. This network of duties is matched by a network of correlative rights which it is not necessary now to analyse in full detail. But in considering the present case, three separate elements may be distinguished.

87. First, there is the duty of the Respondent both to prevent genocide and to refrain from conduct that inhibits the ability of the Applicant itself to prevent genocide or to resist it. There can be no doubt that the Court may require the Respondent in general terms not to commit genocide and to take measures to prevent the commission of genocide, whether directly by itself or indirectly by others who may be directed, controlled or supported by it. This is what the Court has done in its Orders of 8 April 1993 and of today's date. It is the least that the Court can do. There is a case, however, for saying that, in the light of facts of which it is aware, the Court should be more specific in directing the Respondent to refrain also from particular kinds of acts, especially further murder of civilians and the continuance of the process of ethnic cleansing and the forced displacement of the Muslim population.

88. Second, there is the duty of the Applicant conceived and expressed in the same terms as those just used in regard to the duty of the Respondent. In principle, the duties of the two Parties are identical. But when the evidence indicates (as it does) that the extent of the atrocities committed against the Muslim population of Bosnia is of an order which so far exceeds the extent of any wrongs done to the Serb ethnic group in Bosnia-Herzegovina as to exclude any conclusion that the latter are suffering genocide, there is no need for a more specific indication of interim measures in favour of Yugoslavia than appeared in the Court's Order of 8 April 1993; and that is the view that the Court has taken in its Order of today's date.

89. Third, there is the question of access by the Applicant to the means to prevent the commission of acts of genocide. The Applicant obviously has here in mind some consideration by the Court of the effect and future of the embargo placed by Security Council resolution 713 (1991) of 25 September 1991 upon the provision of arms and military equipment to both sides in the conflict.

90. In the resolution in question the Security Council decided, acting under Chapter VII of the Charter, inter alia: [p 437]

"that all States shall, for the purpose of establishing peace and stability in Yugoslavia, immediately implement a general and complete embargo on all deliveries of weapons and military equipment to Yugoslavia until the Security Council decides otherwise following consultation between the Secretary-General and the Government of Yugoslavia" (resolution 713 (1991), para. 6).

Four aspects of this resolution call for comment.

91. The first is that the embargo was requested by Yugoslavia itself and three members of the Security Council, China, India and Zimbabwe, stated that they regarded Yugoslavia's express agreement to the embargo as essential. This, however, cannot be seen as reflecting a legal require-ment to this effect. Rather, the likely explanation is that some political hesitation on the part of those States mentioning this consideration was overcome by the fact of Yugoslavia's agreement.

92. The second comment is that the resolution was adopted at a time when the international status and capacity of the original federal State of Yugoslavia had not been brought into question. Within one month, however, the authority of the government in Belgrade to represent the whole of the territory formerly comprised within the borders of Yugoslavia had become a matter of doubt. On 25 October 1991 Mr. Cyrus Vance, acting as representative of the United Nations Secretary-General, reported that the subsequent declarations of full independence made by Slovenia and Croatia had seriously impaired the de facto authority of the central government in Yugoslavia. On 7 December 1991 the Arbitration Commission established by the European Community found (inter alia) that the Socialist Federal Republic of Yugoslavia was in the process of dissolution. By 19 September 1992 the Security Council recorded in the preamble to resolution 777 (1992) that "the State formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist". On 6 March 1992 Bosnia-Herzegovina declared its independence; on 6 April 1992 it was recognized by the European Community and on 22 May 1992 it was admitted to membership of the United Nations. The implications of this consideration are closely connected with the one that follows.

93. The third point is that the area to which the resolution prohibited the delivery of weapons was described as "Yugoslavia". As a description of an identifiable territory this name ceased to be valid upon the dissolution of the former Socialist Federal Republic of Yugoslavia and its replacement in a large part of that territory by a number of independent republics, the boundaries of which with each other were found by the Arbitral Commission on 11 January 1992 to have acquired "the character of borders protected by international law".

94. On the basis of these two considerations the Applicant has argued [p 438] that the resolution is not applicable to the territory of the new Republic of Bosnia and Herzegovina. Though this argument is by no means devoid of logical force, the difficulty with it lies in the fact that the Security Council has on a number of occasions reaffirmed the embargo, notwithstanding the fact that the Security Council clearly must have known of the emergence of the new Republic and evidently intended the embargo to apply to it. The idea of "interpreting" the resolution so as not to apply to the Applicant does not seem consistent with what the Security Council has apparently had in mind. The most compelling evidence of the Council's view in this regard is the record of the debate held on 29 June 1993 when six members sought, without success, to persuade the Council expressly to raise the embargo in relation to Bosnia-Herzegovina. The vote was 6 in favour, none against, with 9 abstentions.
95. The fourth and legally most relevant comment to be made on the resolution is that the embargo operates unequally between the two sides principally engaged in the conflict. The Serbians in Bosnia had (and have) the support of the Serbians in Serbia and the latter have the benefit of access to the stocks of arms of the Yugoslav National Army, the production of arms factories in Serbia and the import, in breach of the embargo, of arms and military equipment via the Danube and other routes. The Bosnian Muslims did not (and do not) have these advantages.

96. This inequality has been widely recognized and, in particular, was pointed out by the former Prime Minister of Poland, Mr. Tadeusz Mazo-wiecki, Special Rapporteur of the Commission on Human Rights, in his report circulated in the United Nations on 17 November 1992 (A/47/666-S/24809). He said, in paragraph 14:

"Another factor which has contributed to the intensity of ethnic cleansing in areas under Serbian control is the marked imbalance between the weaponry in the hands of the Serbian and the Muslim population of Bosnia and Herzegovina."

In an earlier paragraph 6, the Special Rapporteur had indicated that

"the content of the report is based mainly on information received by the Special Rapporteur and his delegation directly from credible witnesses or from reliable and impartial sources".

Subsequently, the General Assembly took note of the above-quoted statement of the Special Rapporteur and incorporated it verbatim in the preamble of General Assembly resolution 47/121 of 18 December 1992. This statement is the more important because of the direct link which it demonstrates between the continuance of the arms embargo and the exposure of the Muslim population of Bosnia to genocidal activity at the hands of the Serbs.[p 439]

97. The Applicant's request gives rise to two questions: one is whether any challenge to the Security Council resolution is possible in the present context; the other is how, as a matter of form, the Court could give operative effect to its views on this matter within the procedural framework of bilateral litigation between the present two Parties. Although the Court has taken the position that it can make a suitable order without entering into these questions, I believe that some consideration should be given to them.

A. The effect of the Security Council resolution

98. On the face of it, Security Council resolution 713 (1991) is a valid prohibition of the supply of arms and military equipment to those involved in the Yugoslav conflict and is binding on all Members of the United Nations. Although the resolution is open to the comments expressed above in paragraphs 91-96, it cannot be said with certainty that in themselves these comments affect the continuing validity of the resolution. The fact that some of the members of the Security Council indicated that they would not have supported the resolution in the absence of the consent of Yugoslavia, in relation to whose territory the embargo was adopted, could only be relevant in the absence of a determination by the Security Council that the situation fell within Chapter VII of the Charter. Once the Security Council indicated that it was acting "under Chap-ter VII", it was no longer constrained by the necessity of obtaining the consent of any State to the measures that it considered the circumstances to require.

99. This is not to say that the Security Council can act free of all legal controls but only that the Court's power of judicial review is limited. That the Court has some power of this kind can hardly be doubted, though there can be no less doubt that it does not embrace any right of the Court to substitute its discretion for that of the Security Council in determining the existence of a threat to the peace, a breach of the peace or an act of aggression, or the political steps to be taken following such a determination. But the Court, as the principal judicial organ of the United Nations, is entitled, indeed bound, to ensure the rule of law within the United Nations system and, in cases properly brought before it, to insist on adherence by all United Nations organs to the rules governing their operation. The Court has already, in the Lockerbie case, given an extensive interpretation of the powers of the Security Council when acting under Chapter VII, in holding that a decision of the Council is, by virtue of Articles 25 and 103 of the Charter, able to prevail over the obligations of the parties under any other international agreement (see Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 15, para. 39). [p 440]

100. The present case, however, cannot fall within the scope of the doctrine just enunciated. This is because the prohibition of genocide, unlike the matters covered by the Montreal Convention in the Lockerbie case to which the terms of Article 103 could be directly applied, has generally been accepted as having the status not of an ordinary rule of international law but of jus cogens. Indeed, the prohibition of genocide has long been regarded as one of the few undoubted examples of jus cogens. Even in 1951, in its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, the Court affirmed that genocide was "contrary to moral law and to the spirit and aims of the United Nations" (a view repeated by the Court in paragraph 51 of today's Order) and that

"the principles underlying the Convention are provisions which are recognized by civilized nations as binding on States even without any conventional obligation" (I.C.J. Reports 1951, p. 22).

An express reference to the special quality of the prohibition of genocide may also be seen in the work of the International Law Commission in the preparation of Article 50 of the draft articles on the Law of Treaties (Yearbook of the International Law Commission, 1966, Vol. II, pp. 248-249) which eventually materialized in Article 53 of the Vienna Convention on the Law of Treaties and in the same Commission's commentary on Article 19 (international crimes and delicts) of the draft articles on State Responsibility (Yearbook of the International Law Commission, 1976, Vol. II, Pt. 2, p. 103). The concept of jus cogens operates as a concept superior to both customary international law and treaty. The relief which Article 103 of the Charter may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot — as a matter of simple hierarchy of norms — extend to a conflict between a Security Council resolution and jus cogens. Indeed, one only has to state the opposite proposition thus — that a Security Council resolution may even require participation in genocide — for its unaccepta-bility to be apparent.
101. Nor should one overlook the significance of the provision in Article 24 (2) of the Charter that, in discharging its duties to maintain international peace and security, the Security Council shall act in accordance with the Purposes and Principles of the United Nations. Amongst the Purposes set out in Article 1 (3) of the Charter is that of achieving international co-operation "in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion".

102. Now, it is not to be contemplated that the Security Council would ever deliberately adopt a resolution clearly and deliberately flouting a rule [p 441] of jus cogens or requiring a violation of human rights. But the possibility that a Security Council resolution might inadvertently or in an unforeseen manner lead to such a situation cannot be excluded. And that, it appears, is what has happened here. On this basis, the inability of Bosnia-Herzegovina sufficiently strongly to fight back against the Serbs and effectively to prevent the implementation of the Serbian policy of ethnic cleansing is at least in part directly attributable to the fact that Bosnia-Herzegovina's access to weapons and equipment has been severely limited by the embargo. Viewed in this light, the Security Council resolution can be seen as having in effect called on Members of the United Nations, albeit unknowingly and assuredly unwillingly, to become in some degree supporters of the genocidal activity of the Serbs and in this manner and to that extent to act contrary to a rule of jus cogens.

103. What legal consequences may flow from this analysis? One possibility is that, in strict logic, when the operation of paragraph 6 of Security Council resolution 713 (1991) began to make Members of the United Nations accessories to genocide, it ceased to be valid and binding in its operation against Bosnia-Herzegovina; and that Members of the United Nations then became free to disregard it. Even so, it would be difficult to say that they then became positively obliged to provide the Applicant with weapons and military equipment.

104. There is, however, another possibility that is, perhaps, more in accord with the realities of the situation. It must be recognized that the chain of hypotheses in the analysis just made involves some debatable links — elements of fact, such as that the arms embargo has led to the imbalance in the possession of arms by the two sides and that that imbalance has contributed in greater or lesser degree to genocidal activity such as ethnic cleansing; and elements of law, such as that genocide is jus cogens and that a resolution which becomes violative of jus cogens must then become void and legally ineffective. It is not necessary for the Court to take a position in this regard at this time. Instead, it would seem sufficient that the relevance here of jus cogens should be drawn to the attention of the Security Council, as it will be by the required communication to it of the Court's Order, so that the Security Council may give due weight to it in future reconsideration of the embargo.

B. The procedural question

105. The second question now presents itself. In formal procedural terms, how can the Court, within the framework of proceedings between the Applicant and the Respondent to which no other State is a party, [p 442] reflect the views set out above? The position would, of course, have been somewhat different if, invoking the obligation resting upon all parties to the Genocide Convention to prevent genocide, the Applicant had started proceedings against one or more of other parties to the Convention challenging their failure to meet this commitment. Then, if the Court had shared the view here expressed of the scope of Article I, it could have made a declaration inter partes along the lines indicated above. But, for whatever reason, that course was not chosen by the Applicant and, in consequence, the question must be asked whether the Court, either at the request of a party or proprio motu, can properly find room within the framework of the present case for this kind of approach.

106. While, of course, the principal thrust of a finding that paragraph 6 of Security Council resolution 713 (1991) may conflict with jus cogens must lie in the direction of third States which may be willing to supply arms to Bosnia-Herzegovina, that does not mean that such a conclusion could have no place in an order operative between Bosnia-Herzegovina and Yugoslavia in the present proceedings. There may well be advantage for Bosnia-Herzegovina (it is not for the Court to determine) in being able to say that the Court has identified a source of doubt regarding the validity of the embargo resolution which, though not directly operative by itself, requires that the Security Council give the matter further consideration.

107. So far, then, as this fourth request is related to the elimination of the arms embargo vis-a-vis Bosnia-Herzegovina, I would be prepared to say that the Applicant may have an indication of a provisional measure in the following terms: that as between the Applicant and the Respondent the continuing validity of the embargo in its bearing on the Applicant has become a matter of doubt requiring further consideration by the Security Council.

5. The Fifth Request

108. The fifth request is:

"That all Contracting Parties to the Genocide Convention are obliged by Article I thereof 'to prevent' the commission of acts of genocide against the People and State of Bosnia and Herzegovina."

109. As is apparent on the face of the Convention, most of its provisions are taken up with aspects of the prevention and punishment of genocide within the national legal sphere, that is to say, with breaches of the Convention by individuals. Thus Article III describes genocide and related acts as being "punishable" — a process more obviously applicable to individuals than to States. Article IV prescribes that "persons committing genocide ... shall be punished". Article V requires the Contracting [p 443] Parties "to enact legislation to give effect to the provisions of the Convention" — again reflecting the concern of the Convention with the individual violator. This is reinforced by Article VI which provides that persons charged with genocide shall be tried by a competent tribunal of the State in the territory of which the act was committed or by an appropriate international penal tribunal. Yet again, Article VII provides that, for the purpose of extradition, genocide shall not be considered as a political crime. All this, therefore, strongly suggests that the Convention does no more than establish for the Contracting States duties that are to be implemented by legislative action within their domestic legal spheres.

110. Any such narrow view must, however, be rejected. The statement in Article I that the Contracting Parties undertake "to prevent and to punish" genocide is comprehensive and unqualified. The undertaking establishes two distinct duties: the duty "to prevent" and the duty "to punish". Thus, a breach of duty can arise solely from failure to prevent or solely from failure to punish, and does not depend on there being a failure both to prevent and to punish. The confirmation in the same Article that genocide "is a crime under international law" does not change the position or restrict the application of the concept of genocide exclusively to individual criminal liability. The purpose of this latter provision is to permit parties, within the domestic legislation that they adopt, to assume universal jurisdiction over the crime of genocide — that is to say, even when the acts have been committed outside their respective territories by persons who are not their nationals.

111. Thus the effect of the Convention is also to place upon States duties to prevent and to punish genocide on the inter-State level. This is the plain meaning of the words of Article I and it is confirmed to some extent by Article VIII and most clearly by Article IX. The latter Article contains the disputes settlement provision of the Convention:

"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." (Emphasis added.)

It is the italicized words, "including those relating to the responsibility of a State for genocide", and especially the words "for genocide", that make it clear that the Convention contemplates the possibility that a State may commit genocide and, therefore, that the obligation "to prevent" genocide [p 444] extends also to the obligation to prevent a State from committing genocide. If the Convention were limited to the creation of a duty upon States to prevent and to punish genocide within their national legal systems and, by definition, committed by persons not possessing the quality of statehood, how could there be any possibility of the State itself being responsible for genocide, a possibility evidently anticipated in Article IX?

112. The above interpretation, it should be said, is based exclusively upon the plain meaning of the words actually used in the Convention. There is no doubt or ambiguity on the face of the text and preliminary scrutiny of the travaux préparatoires does not suggest anything that requires departure from this plain meaning.

113. There is, thus, no difficulty in declaring that all the parties to the Genocide Convention are under a duty to prevent genocide. This is merely a matter of reading the words of Article I of the Convention. Nor is it out of place for the Court to make such a declaration in the present case as part of the indication of provisional measures of protection directed towards the Respondent. What is more controversial is whether this duty extends beyond the duty of each party to prevent genocide within its own territory to that of preventing genocide wherever it may occur.

114. Obviously, an absolutely territorial view of the duty to prevent genocide would not make sense since this would mean that a party, though obliged to prevent genocide within its own territory, is not obliged to prevent it in territory which it invades and occupies. That would be nonsense. So there is an obligation, at any rate for a State involved in a conflict, to concern itself with the prevention of genocide outside its territory.

115. But does the duty of prevention that rests upon a party in respect of its own conduct, or that of persons subject to its authority or control, outside its territory also mean that every party is under an obligation individually and actively to intervene to prevent genocide outside its territory when committed by or under the authority of some other party? As already stated, the undertaking in Article I of the Convention "to prevent" genocide is not limited by reference to person or place so that, on its face, it could be said to require every party positively to prevent genocide wherever it occurs. At this point, however, it becomes necessary to look at State practice. Since the Second World War, there have regrettably been a number of cases of genocide. As Mr. B. Whitaker, the Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, has stated in the Revised and Updated Report on the Question of the Prevention and Punishment of Genocide (E/CN.4/Sub.2/1985/6, 2 July 1985) requested by the Economic and Social Council, the examples which may be cited are [p 445]

"the Tutsi massacre of Hutu in Burundi in 1965 and 1972, the Paraguayan massacre of Ache Indians prior to 1974, the Khmer Rouge massacre in Kampuchea between 1975 and 1978 and the contemporary Iranian killings of Bahai's" (pp. 9-10, para. 24).

The limited reaction of the parties to the Genocide Convention in relation to these episodes may represent a practice suggesting the permissibility of inactivity. In contrast with the position that I have taken on other debatable aspects of this case that have not been fully argued by the Parties, I do not feel able, in the absence of a full treatment of this subject by both sides to express a view on it at this stage — sympathetic though I am in principle to the idea of an individual and collective responsibility of States for the prevention of genocide wherever it may occur. I, therefore, find myself unable to accede to the fifth request.

6. The Sixth Request

116. The sixth request is:

"That the Government of Bosnia and Herzegovina must have the means to defend the People and State of Bosnia and Herzegovina from acts of genocide and partition and dismemberment by means of genocide."

117. The first part of this request essentially duplicates the fourth request, already considered, but the second part introduces an additional element, namely, that the Applicant should have the means to defend its people and itself from "partition and dismemberment by means of genocide".

118. As the view has already been expressed in the answer to the fourth request that the Applicant must have the means to prevent the commission of genocide against itself, the elaboration of the consequences of genocide against which it is entitled to protect itself is unnecessary. The problem is largely one of causation. Is the "partition and dismemberment" of Bosnia and Herzegovina being achieved "by means of genocide"? To answer No — as must be the answer — is not to deny that genocide has taken place in Bosnia and Herzegovina and that at the present time it appears to be continuing. Rather it is to say that the object of the genocide is the Muslim population of Bosnia not "the People and State of Bosnia-Herzegovina" as a whole. The latter concept must comprise all the elements of the population of Bosnia and Herzegovina, of which the Muslim population forms no more than 40 per cent. So, though the Government of Bosnia and Herzegovina is entitled to the means to protect its population, or part of its population, from genocide, that entitlement does not extend to the protection of the State from dismemberment where the population of the State is evidently divided within itself and cannot be said to compose a "national [p 446] group" within the meaning of that expression as used in Article I of the Convention. The Court is as much bound to take judicial notice of current political developments in Bosnia and Herzegovina as it is of the earlier events affecting its Muslim population and clearly constituting genocide. These current developments exclude any notion that the division by agreement of the territory of Bosnia and Herzegovina between the Muslims, Serbs and Croats of the country can be regarded as genocide.

7. The Seventh, Eighth and Ninth Requests

119. The content of these requests is so similar to that of the sixth, fourth and fifth requests respectively as not to require separate answers. They are covered, to the extent that it is possible to do so, by the measures indicated below.

8. The Tenth Request

120. The tenth request is

"That United Nations Peace-keeping Forces in Bosnia and Herzegovina (i.e., UNPROFOR) must do all in their power to ensure the flow of humanitarian relief supplies to the Bosnian People through the Bosnian city of Tuzla."

121. As no evidence has been produced to the Court that the United Nations Peace-keeping Forces in Bosnia are doing anything other than all in their power to perform their humanitarian duties, there is no basis for dealing with this request.

V. Conclusions

122. In expressing my conclusions on the Applicant's second request for an indication of interim measures, I begin by repeating my concurrence with the operative paragraphs of the Court's Order. As already stated, however, I would have preferred the Court to have dealt with certain aspects of the case in greater detail and to have gone beyond the reaffirmation of the measures indicated in its Order of 8 April 1993.I shall, therefore, elaborate in paragraph 123 a number of interim measures which I believe fall within the scope of the Genocide Convention and of the operative part of the Court's Order and which I would have wished to have seen expressly included in it. In paragraph 124 I shall set out some additional measures which, though outside the scope of the Genocide [p 447] Convention, lie, in my view, within the scope of the Court's jurisdiction based on forum prorogatum.
123. In the exercise of the jurisdiction conferred upon it by Article IX of the Genocide Convention:

A. The Court should have ordered Yugoslavia (Serbia and Montenegro) and any authorities or persons, whether military or civil, subject to its control, direction or influence, immediately to cease, and subsequently to refrain from, any act amounting to, contributing to, or supportive of genocide in Bosnia-Herzegovina.

The acts of, or associated with, genocide which should have been covered by the Order are those acts listed in Article II of the Genocide Convention.

The prohibition should have extended, but not been limited, to:

(i) providing or permitting the provision of weapons, ammunition, military supplies and financial, commercial or any other aid, except of a strictly humanitarian character, to any forces, authorities or individuals engaged or engaging in Bosnia-Herzegovina in hostilities or armed actions against the Government of the Republic of Bosnia-Herzegovina or against any persons within the territorial limits of that Republic as established at 6 March 1992 who acknowledge its authority or claim its protection, and

(ii) "ethnic cleansing" or conduct contributing thereto such as attacks and firing upon, sniping at and killing of non-combatants, and bombardment and blockade of areas of civilian occupation and other conduct having as its effect the terrorization of civilians in such a manner as to lead them to abandon their homes.

B. The Court should further have declared that, as between the Applicant and the Respondent, the imbalance in the supply of weaponry as a result of the embargo established by Security Council resolution 713 (1991) and the grave disadvantage under which the Applicant has thus been placed has a sufficient causal connection with the continuance of genocide in Bosnia-Herzegovina to raise the question of its compatibility with jus cogens and thus place in doubt its continuing validity in a manner calling for further consideration by the Security Council.

124. In addition, in the exercise of the jurisdiction conferred upon the Court by the request of the Applicant for interim measures contained in the act of forum prorogatum constituted by the letter of 1 April 1993 from the Respondent to the Registrar of the Court, the Court should have ordered both Parties and those subject to their authority or control: [p 448]

(i) to comply strictly with any agreement or agreements for a cease-fire to which they may be, or may become, parties;

(ii) to respect the Geneva Conventions for the Protection of Victims of War of 1949 and the 1977 Additional Protocols thereof;

(iii) to release immediately from all prisons and detention camps all Muslims, Serbs or other persons who are being detained because of their ethnic origin, and to terminate forthwith the torture and maltreatment of such persons;
(iv) to allow, without delay, the free movement of all those who, by reason of the conflict and insecurity in Bosnia-Herzegovina wish voluntarily to leave their homes and move elsewhere;

(v) to refrain from any further destruction of mosques, churches, other places of worship, schools, libraries, museums and any other establishments or institutions associated with the ethnical or religious identity of any group in Bosnia-Herzegovina; and

(vi) to end immediately all acts of discrimination in any territory under their control based on nationality, religion or ethnic identity, including any discrimination relating to the delivery of humanitarian aid and, to that end, to co-operate with and render all aid and assistance within their power to UNPROFOR, UNHCR and other agencies, whether intergovernmental or non-governmental, in providing and protecting safe havens and other localities of sheltered civilian abode and in carrying necessary non-military supplies to such places.

(Signed) Elihu Lauterpacht. [P 449]


Dissenting opinion of judge Tarassov

By the present decision the Court reaffirms its Order of 8 April 1993 whereby it indicated three provisional measures (two of which — A (1) and A (2) — were addressed to Yugoslavia, while one measure — B — was addressed to both Parties) and stresses that all these measures should be immediately and effectively implemented. In April 1993, I voted for two such measures but was unable to support provisional measure A (2), explaining my negative vote against it in a declaration appended to the Order. I am still of the same opinion with respect to that measure, considering it to be as very close to a prejudgment, and to impose requirements that are ill-defined and practically unlimited.

The second request of Bosnia and Herzegovina, submitted to the Court on 27 July 1993, confirms my worst apprehensions relating to that measure because the new request is based entirely on acts allegedly committed by Serbs in the civil war in Bosnia, all of which are ascribed by the Bosnian side to Yugoslavia, without any attempt to demonstrate a causal or logical relationship such as to imply that the Government of Yugoslavia is responsible for the commission of those acts (even if their genocidal character, which is very doubtful and in any case has not yet been established by the Court, were to be proved in further judicial proceedings). It would be very dangerous for international law and for international relations if nothing more than the ethnic homogeneity of a given State's population could be taken to imply that State's responsibility for the actions of the same ethnic group living in another State and committed on the territory of the latter. (In its second request, Bosnia and Herzegovina, under the sub-title "Chronology of Respondent's Violations of This Court's Order of 8 April 1993", went so far as to refer, inter alia, to reports of actions allegedly committed even by Croats living in Bosnia and Herzegovina, who have absolutely nothing in common with YugoslaviaFN1).

---------------------------------------------------------------------------------------------------------------------
FN1 See, for instance, communications under the dates 18 and 20 May, 1 and 7 June 1993 in the request of 27 July 1993.
---------------------------------------------------------------------------------------------------------------------

As I said before, I voted for measure A (1) which provides 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". The written pleadings and the intervention of the Parties during the oral hearings provided the Court with certain reasons for adopting [p 450] such a measure. At that time, only the Bosnian side presented communications to the Court about events in Bosnia and Herzegovina which, in its contention, amounted to acts of genocide committed "under the direction of, at the behest of, and with assistance from Yugoslavia". The Yugoslavian side, due to the very limited time allowed to it for the preparation of its oral arguments, confined itself to a statement that "genocide and genocidal acts are being perpetrated against the Serb population of the territory of Bosnia and Herzegovina". In his communication dated 1 April 1993, the Federal Minister for Foreign Affairs of Yugoslavia, on behalf of his Government, requested the Court:
"to establish the responsibility of the authorities controlled by A. Izetbegovic for acts of genocide against the Serb people in the 'Republic of Bosnia and Herzegovina', on which it [the Government of Yugoslavia] will subsequently submit relevant evidence".

While I supported measure A (1), in my declaration appended to the Order of 8 April 1993 I stressed that it had to be taken not only in respect of the Government of Yugoslavia, but also in respect of the Government of Bosnia and Herzegovina. For me it was obvious that the latter Government has responsibility for acts committed on its territory by its own citizens irrespective of whether they are Muslims, Serbs or Croats, officials or private individuals. And, as I then stressed, both Parties were of course expected to take all such measures to prevent the commission of crimes of genocide, as might be in their real power respectively.

The Court itself, in paragraph 45 of that Order of 8 April 1993, pointed out that:

"in the view of the Court, in the circumstances brought to its attention ... 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".

In the present Order the Court has recalled its above-mentioned conclusion but unfortunately, in the operative part, it confines itself to reaffirming measure 52 A (1) in its previous form, addressed only to the Government of Yugoslavia. It does not mention the analogous obligation of the Government of Bosnia and Herzegovina — even though, on this second occasion, the Yugoslavian side officially and formally requested the Court to indicate, as a provisional measure, that the Government of Bosnia and Herzegovina:

"should immediately, in pursuance of its obligation under the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, take all measures within its power to prevent [p 451]commission of the crime of genocide against the Serb ethnic group";

and presented the Court with material which gives it every reason for laying such an obligation upon the Government of Bosnia and Herzegovina, as well.

Given that requests for the indication of provisional measures have been submitted by both Parties in new proceedings and given the numerous communications on which those requests are based, regarding acts which allegedly relate to the crime of genocide and which have purportedly been committed in this inter-ethnic, civil conflict in Bosnia and Herzegovina by all ethnic groups against each other, the Court's decision to make an order ascribing the lion's share of responsibility for the prevention of acts of genocide in Bosnia and Herzegovina to Yugoslavia is a onesided approach based on preconceived ideas, which borders on a prejudgment of the merits of the case and implies an unequal treatment of the different ethnic groups in Bosnia and Herzegovina who have all suffered inexpressibly in this fratricidal war. I, as a judge, cannot support this approach. It is especially dangerous now, when as a result of enormous efforts by representatives of the United Nations and the European Community, the hostilities have begun to be replaced by peaceful negotiations in Geneva between the three main Bosnian ethnic groups, with the participation of representatives of Serbia and Croatia. The present Order was adopted by the Court when all parties to those negotiations had, on 30 July, accepted a constitutional agreement for a Union of Republics of Bosnia and Herzegovina and to its forming a part of an overall peace settlement — or, in other words, to the creation in that country of three Constituent Republics within the framework of an independent, sovereign Union. The Security Council in the first operative paragraph of resolution 859 (1993), adopted unanimously on 24 August 1993 (on the very eve of the oral hearings of 25-26 August 1993 and before the Court's present decision):

"Notes with appreciation... the latest developments at the Geneva peace talks and urges the parties, in cooperation with the Co-Chairmen, to conclude as soon as possible a just and comprehensive political settlement freely agreed by all of them."

The Court, for its part, unfortunately made no reference at all to the need for both Parties to facilitate the achievement of a peace agreement in the Geneva negotiations, which is the most urgent and the most effective measure for the prevention of any possible commission of the crime of genocide in Bosnia and Herzegovina. As was stressed long ago by the Permanent Court of International Justice:

"the judicial settlement of international disputes, with a view to which the Court has been established, is simply an alternative to the [p 452]direct and friendly settlement of such disputes between the Parties; as consequently it is for the Court to facilitate, so far as is compatible with its Statute, such direct and friendly settlement..." (Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, P.C.I.J., Series A, No. 22, p. 13).

This very important provision has been recognized by the present Court: see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1986, p. 143, para. 285). What is more, the Court has stressed that it "should refrain from any unnecessary act which might prove an obstacle to a negotiated settlement" (ibid). While the one-sided, unbalanced Order of the Court might not necessarily be "an obstacle to a negotiated settlement", it will obviously not facilitate its successful completion. The Court cannot be ignorant of the fact that representatives of Serbia, which is a part of the Federal Republic of Yugoslavia, have been invited to participate in the Geneva negotiations as well as the representatives of Croatia, and so that Yugoslavia — a Party in the present case before the Court — is not extraneous to those negotiations.

The immense sufferings of all the ethnic and religious segments of the population in Bosnia and Herzegovina — Muslims, Serbs, Croats and others — (and the severe hardships sustained by the population of Yugoslavia itself under the imposed sanctions) together, in my view, provided the Court with every reason to assert its moral authority — as was done recently by the Security Council — to encourage both sides in the present dispute to make a positive contribution to the success of the Geneva peace negotiations. Unfortunately, while quoting former decisions of the Security Council, some of which, in my view, are not pertinent to the indication of provisional measures in the present dispute, the Court, on the most vital issue for all sections of the population of Bosnia and Herzegovina, who might possibly become victims of the crime of genocide — cessation of hostilities and reaching a just and comprehensive political settlement — has preferred to remain silent.

(Signed) Nikolai K. Tarassov. [p 453]


Dissenting opinion of judge Kreca

The Order of 13 September 1993 constitutes the reaffirmation of the Court's earlier decision of 8 April 1993, both in the formal and in the material sense.

Noteworthy for an assessment of such a decision is the fact that the Court has rejected the proposed provisional measures requested by the Applicant noting inter alia,

"whereas the rights listed at (a)to (g) were asserted in almost identical terms, and their protection was claimed to be necessary, in the first request of Bosnia-Herzegovina for provisional measures, filed on 20 March 1993; whereas of the rights listed only that indicated in paragraph (c) is such that it may prima facie to some extent fall within the rights arising under the Genocide Convention; and whereas it was therefore in relation to that paragraph and for the protection of rights under the Convention that the Court indicated provisional measures in its Order of 8 April 1993 ..." (Order, para. 39).

The fact that the Court took such a position and that the first and second request of the Applicant are virtually identical in substance, raises a question of crucial significance — what were the grounds that served as a basis for the Court's decision of 8 April 1993?

I

In the case at hand, the Court based its prima facie jurisdiction on the fact that both Parties to the dispute are contracting parties to the Convention on the Prevention and Punishment of the Crime of Genocide (1948), which, inter alia, 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." (Art. IX.)

Hence, in its Order issued on 8 April 1993, the Court decreed:

"Whereas the Court, having established the existence of a basis on which its jurisdiction might be founded, ought not to indicate [p 454] 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" (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 19, para. 35).

The Genocide Convention extends protection to a "national, ethnical, racial or religious group" (Art. II), which in practical terms means that the "respective rights" in terms of Article 41 of the Statute are in concreto the right of a "national, ethnical, racial or religious group, as such to be protected from acts committed with intent to destroy it, in whole or in part".

As can be seen from the wording of paragraph (c), it does not relate to rights of "national, ethnical, racial or religious groups, as such" but to "the right of the People and State of Bosnia-Herzegovina". Broadly speaking, the term "people" could, in principle, be related to "national or ethnical groups" as the object of protection of the Genocide Convention. I say "in principle", since in this specific instance there are no reasonable grounds for such an interpretation. The expression "people" in this case does not refer to an actual homogeneous national, ethnic, or religious entity, for the phrase "People of Bosnia and Herzegovina" used by the Applicant, in fact, covers three ethnic communities. Therefore, a broad interpretation of the term "people" according to which it would extend to or imply "a national, ethnical, racial or religious group" in terms of the Genocide Convention, especially in the view of the content of the Applicant's requests for provisional measures, would in this case lead to an absurd outcome.

Anyway, the Applicant himself tacitly admits that in Bosnia-Herzegovina there is no single national corpus, for the proposal for the provisional measure under paragraph 2 of the first request, and to a certain extent also under paragraph 2 of the second request, is that a ban be imposed on aid (etc.) "to any nation... in Bosnia-Herzegovina".

The actual formulation of rights under paragraph (c) consists of two parts: the first is more of a rhetorical statement than a right formulated by the Convention ("right ... to be free at all times") and the second is a classic example of an interim judgment ("from genocide and other geno-cidal acts perpetrated... by Yugoslavia (Serbia and Montenegro), acting together with its agents and surrogates in Bosnia and elsewhere").

In my opinion, the primary condition which a request for provisional measures must satisfy is that these measures should be "regarded as solely [p 455] designed to protect the subject of the dispute and the actual object of the principal claim" (Polish Agrarian Reform and German Minority, Order of 29 July 1933, P.C.I.J., Series A/B, No. 58, p. 178). In the United States Diplomatic and Consular Staff in Tehran case, the Court has stressed in imperative form that the request for the indication of provisional measures

"must by its very nature relate to the substance of the case since, as Article 41 [of the Statute] expressly states, their object is to preserve the respective rights ..." (I.C.J. Reports 1979, p. 16, para. 28).

This primary condition is not fulfilled in the concrete case. Namely, as evidenced by paragraph 39 of the latest Order, in passing the Order of 8 April, the Court relied solely on paragraph (c) — which means that it did not accept any one of the provisional measures proposed by the Applicant but it found a basis for passing the Order in the part of the request dealing with the "Legal rights sought to be protected by the indication of provisional measures". This part of the request, however, is an explanation of the reasons behind the request for provisional measure ("reasons therefor") to use the terminology of Article 73, paragraph 2, of the Rules, so that even if it were to be perfectly worded it would be no more than one element of the request.

According to Article 73, paragraph 2, of the Rules of Court, the Court decides to indicate provisional measures on the basis of a request which "shall specify the reasons therefor, the possible consequences if it is not granted, and the measures requested".

In view of the fact that the Applicant's first request had contained a proposal for the indication of provisional measures, it follows that the Court deemed those provisional measures, as had also been the case with respect to the provisional measures proposed in the second request, inappropriate to the object of the dispute and it passed the Order on the basis of the formulation of rights whose protection was requested.

That being so, as confirmed by paragraph 39 of the Order of 13 September 1993, in my opinion, the question emerges whether the Court should have decreed the Order of 8 April 1993?

What are the reasons behind the flagrant discrepancy between the measures the Applicant is proposing on the one hand and the prima facie established jurisdiction of the Court to decide only on those measures and grounds "which fall within the scope of the Genocide Convention" (I.C.J. Reports 1993, p. 19, para. 35) on the other? I deem the answer to this question to be relevant in the circumstances of the case because in itself, and even more in the context of the case, it cannot but affect both the wording and the substance of the pronounced provisional measures. [p 456]

Correct interpretation of the documents of the case suggests that it is the Applicant's intention to extend the dispute. Namely: the request for the indication of provisional measures of protection submitted by the Applicant on 27 July contains inter alia that ratio behind the submission of such a request:

"This request for additional measures of protection is motivated by the desire to have the Court protect the 'rights' of the People and State of Bosnia and Herzegovina. Moreover, this request for additional measures of protection is also motivated by the desire to have the Court protect the very existence of the People and State of Bosnia and Herzegovina from extermination by means of genocide, partition, dismemberment, annexation and incorporation by the Respondent. Since the Court has the legal power to protect the 'rights' of Bosnia and Herzegovina, then a fortiori the Court must have the legal power to protect Bosnia and Herzegovina itself." (Request for the indication of provisional measures of protection submitted by the Government of the Republic of Bosnia and Herzegovina, Preamble.)

In the part of the request titled "D. The Consequences Sought to be Avoided by Provisional Measures" which, pursuant to the provision of Article 73, paragraph 2, is an obligatory and integral component of the request in which a party "shall specify the reasons therefor", the Appli-cant states:

"The overriding objective of this request is to prevent the further loss of human life and further acts of genocide against the People of Bosnia and Herzegovina, as well as to prevent the partition, dismemberment, annexation, incorporation and final destruction of the Republic of Bosnia and Herzegovina itself, a sovereign State and Member of the United Nations Organization."

Such a position on the part of the Applicant which in concrete terms means a request for the indication of provisional measures, made it incumbent upon the Court, in my opinion, to look into two things:

(1) the meaning of such an act within the framework of the actual opening proceedings and in the light of the provisional measure under paragraph 52 B, Order of 8 April 1993, which, inter alia, says that the Applicant "should not take any action ... which may aggravate or extend the existing dispute over the prevention or punishment of the crime of genocide ..."; and

(2) the particular meaning of such an act in the context of the efforts being invested by the Conference in Geneva to seek out a political settlement to the tragedy of Bosnia-Herzegovina. For, on the basis of the Applicant's submissions, the conclusion may be drawn that the purpose of the provisional measures is also to prevent the adoption of the Owen-Stoltenberg Peace Plan for Bosnia. The Applicant's written submission of 10 August states, inter alia: [p 457]

"it is obvious that the Owen-Stoltenberg Plan is a diktat that is the legal equivalent to what Hitler presented to Czechoslovakia at Munich in 1938. The Plan is based upon the assumption that the Republic of Bosnia and Herzegovina — a Member State of the United Nations — will be carved up into three independent States and deprived of our United Nations membership",

and

"we most respectfully request the Court to grant immediately all of the relief specified in (1), (2), (3) and (4) above and, in particular but not limited to, the ten measures of provisional protection set forth in our second request as well as all of the measures proprio motu suggested therein." (Letter of the Agent of Bosnia and Herzegovina to the Court, dated 7 August 1993.)

There is no doubt that this is a question which is outside the jurisdiction of the Court. To my mind, however, the fact that it is does not exclude the Court, but on the contrary, should prompt the Court, bearing in mind the crucial importance of the peace negotiations as the only way to end the inferno of civil war and the massive suffering of the innocent population, to find a way to urge the Applicant to continue the peace negotiations in Geneva with the Croat and the Serb side (per analogiam with the Court in Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 20, para. 35).


II

More than 30 years ago, Sir Hersch Lauterpacht wrote: "A substantial part of the task of judicial tribunals consists in the examination and the weighing of the relevance of facts." (H. Lauterpacht, The Development of International Law by the International Court, 1958, p. 48.)

If the examination of facts is of crucial importance in court proceedings, and there can be no doubt it is, then it is a fortiori important in the process of indication of provisional measures. In a procedure that is characterized by urgency, the Court's possibilities for making an unbiased and critical assessment of the factual situation are necessarily limited. In each particular case, the Court is in actual fact seeking to strike a fine and delicate balance between Scylla — the need to respond to the urgency of the provisional measures — and Charybdis — the imperative requirement not to distort the facts in doing so.

The procedure of indication of provisional measures relies heavily on refutable assumptions (presumptio juris tantum), e.g., the refutable assumption that the Court has jurisdiction in the merits of the case in [p 458] which provisional measures are adopted. The logic of presumption is also expressed in the terminology used, since Article 41 of the Statute uses the term "parties", although strictly speaking the parties affected by provisional measures need not be the actual parties to the dispute which is to be resolved by a judgment concerning the rights which the provisional measures are supposed to protect (exempli causa, the Anglo-Iranian Oil Co. case).

Prima facie, an assessment is justified in cases when the Court establishes its competence in the procedure of indicating provisional measures. And that, in my view, is the absolute limit for the application prima facie of presumption in the incidental procedure of provisional measures. For even an incorrect assessment of jurisdiction, in the final analysis, does not affect legal security, in fact it enhances it in view of the inherent advantages of the judicial settlement of disputes over other modes of resolving disputes.

However, an incorrect assessment of facts necessarily leads to the erroneous application of law which is the ontological antipode of the ideal of judicial proceedings. And a prima facie assessment of facts necessarily entails a very high risk of mistake.

There is not, nor should there be, any substantial difference between the establishment of facts in an incidental procedure, regardless of the particular incidental procedure involved, and the establishment of facts in the merits of the case. Being established by decision of the Court, orders indicating provisional measures have a real and objective value, although orders do not create res judicata — in other words, the differentia specifica between these two kinds of Court decisions being that provisional measures may be re-examined in the merits of the case.

If the term "fact" is taken in its ordinary meaning as "a thing certainly known to be true" then the only clear and recognizable fact is the apocalyptic tragedy of the Muslims, Serbs and Croats in the war-devastated parts of Bosnia-Herzegovina. Aside from that fact there is a vast expanse of subjectivism which feeds on media propaganda, television and newspaper reports teeming with generalizations, imprecise and vague expressions such as "many observers", "diplomats suggested ...", "he noted intelligence report indicating..." and the like which cannot, even if liberal criteria ad absurdum were to be applied, be accepted as evidence.

Subjectivism has an intolerable tendency of spreading easily. It leads to expressions with an ordinary meaning being imbued with a meaning that is in the interest of one party in the dispute. In the process, in the interest of [p 458] obtaining the expected result, the fact is neglected that interpretation in good faith implies that "if the relevant words in their natural and ordinary meaning make sense in their context, that is an end of the matter" (Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 8).

By the nature of its function, in searching for the material truth, the Court naturally cannot and may not a priori exclude any source of information but, at the same time, it is duty bound to subject each and every report to critical scrutiny as that is the only way to avoid it becoming any-body's hostage except the hostage of facts and the truth.

The term "evidence" covers "real evidence, documentary proofs and the testimony of witnesses and experts, advanced by a party either on its own motion or at the invitation of the Court" (M. Hudson, The Permanent Court of International Justice, 1920-1942, 1972, p. 565).

If we abide by this definition of the term "evidence", it is my impression that the Court has not devoted due attention to those proofs which contain names, testimony of witnesses, research findings, etc., as stipulated by the provisions of the Rules of Court (exempli causa, Arts. 65,66 and 67).

Media information may not per se, in my opinion, be taken as evidence and still less as irrefutable, hard proof of the existence of the relevant fact. At best it can be taken as evidence tending to establish fact.

In my opinion in this particular matter, the Court is not in possession of hard facts. That is one side of the coin. The other is the obvious need of the Court, in view of the fact that in this particular dispute it has prima facie established its jurisdiction, to react to the suffering and persecution of all three peoples in Bosnia-Herzegovina in an appropriate manner that would be in harmony with the current phase of the proceedings. The humanitarian dimension of the Court's decision is of fundamental importance in this case.

The humanitarian dimension of the Court's decision, as I see it, is not derived from what might conditionally be called the humane concerns shaping public opinion, which are both genuine and emotional, but from the humaneness inherent in the substance of the law applied by the Court.

Hence, it would appear that in this specific case and proceeding from the fact that

"the essential object of provisional measures is to ensure that execution of a future judgment on the merits shall not be frustrated by the actions of one party pendente lite" (I.C.J. Reports 1976, separate opinion of President Jimenez de Arechaga, p. 15),

two facts are of special importance: [p 460]

(1) That the jurisdiction of the Court was established prima facie. The urgency of the provisional measures may not a priori presume the jurisdiction of the Court in the merits. As Judge Gros pointed out in the Nuclear Tests case:

"In the decision which the Court has to take on any request for provisional measures, urgency is not a dominant and exclusive consideration; one has to seek, between the two notions of jurisdiction and urgency, a balance which varies with the facts of each case." (Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 1973,I.C.J. Reports 1973, dissenting opinion of Judge Gros, p. 120.)

In this case this applies in particular to the jurisdiction of the Court ratione materiae.

(2) The distinctive nature of the crime of genocide. As a delictum juris gen-tiumthe crime of genocide implies the cumulation of two elements — the material (the commission of the acts indicated a limine in Article II of the Convention) and the subjective (the intention (dolus specialis)to "destroy, in whole or in part, a national, ethnical, racial or religious group, as such").
In the absence of conclusive evidence and on the grounds of what I have said, it is my view that the Court should move away from the uncertain terrain of offered evidences to the hard, precise concept of notoriety. The concept of notoriety in concreto is in full harmony with what Judge Bedjaoui pointed out in his dissenting opinion in the Lockerbie case:

"The present phase allows [the Court] only to entertain a provisional and merely prima facie idea of the case, pending later consideration of the merits in a fully comprehensive way." (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom, Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 33.)

The principal elements of the concept of notoriety, logically and empirically irrefutable, would in this particular case imply:

(a) the places where mass destruction of people occurs;
(b) under whose jurisdiction those places are; and
(c) who is prima facie responsible in the light of obligations imposed by relevant Articles of the Genocide Convention.

I hold that in the interest of justice, effective jurisdiction should be taken as a second element of notoriety in spite of the fact that before the Human Rights Committee the Applicant confirmed that [p 461]

"the Republic of Bosnia-Herzegovina considers itself legally responsible for whatever has taken place not only in that part of its territory on which it has factual and effective control but also in other parts of its territory" (United Nations, Human Rights Committee, International Covenant on Civil and Political Rights, CCPR/C/79/Add.l4, 28 December 1992).

It seems almost superfluous to note that the concept of notoriety is not ideal. The shortcomings of this concept are evident. Basically, they are the antipodes of its inherent advantages. While its constituent elements rest on firm logical and empirical grounds, they are at the same time general-ized and relatively ill-adapted to specific events and cases. That is precisely why notoriety constitutes a kind of reserve reliance for the Court in cases when it is not in possession of irrefutable evidence.

This very defect of notoriety, in cases such as this one, turns into an invaluable advantage. A dominant characteristic of this case is that humanitarian reasons require the Court's reaction even though, in terms of law, the fundamental identity between the proposed provisional measures, on the one hand, and the subject-matter of the case, on the other, would suggest extreme restraint in the reaction because of the danger of falling into the trap of an interim judgment.

Notoriety, as a basis of the Court in the indication of provisional measures, provides a chance for those measures to be tailored to the characteristics of this case as I have described them. In other words, to be worded in the form of general measures or, alternatively, as specific measures designed to remove or at least mitigate the effects of the causes, i.e., the facts which have resulted in the tragedy of civil war in Bosnia-Herzegovina.

III

Bearing in mind what I said earlier, including the concrete proposals made, I shall briefly outline my opinion regarding the provisional measures contained in the Order.

My views on the Order are determined both by the content of the individual provisional measures and, at least as much, by the fact that I see the Order as an organic unity, an integral act.

The measure under A (1) prima facie is a declaration of the general obligation of the contracting parties to the Genocide Convention and therefore the Respondent as well, to "take all measures within [their] power to prevent commission of the crime of genocide".

However, the general nature of the obligation that applies to all contracting parties is derogated both by the one-sided nature of the measure [p 462]

— it is addressed to the Respondent alone — and by the wording used. The conclusion suggested is that the Respondent is failing to honour the commitment made in signing the Genocide Convention and that hence the Respondent "should immediately ... take all measures within its power to prevent commission of the crime of genocide", or that the Respondent has certain special obligations deriving from the Genocide Convention.

The provisional measure under A (2) is extremely ambiguous and suggestive. By wording and content, it is dangerously close to or could even be said to incorporate elements of an interim judgment both in its present form and potentially.

In its present form because it is
"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" (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, declaration of Judge Tarassov, p. 26).

The potential prejudicial effect of this provisional measure is to be found in the stipulation 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 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... incitement to commit genocide" or of "complicity in genocide". These passages open

"practically unlimited, 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" (ibid., pp. 26-27).

In fact, the potential prejudical meaning of the cited formulation has de facto been realized by this Order. For, by issuing this Order, the Court has, inter alia, proceeded from the position that it is not satisfied that all that might have been done has been done to prevent commission of genocide in the territory of Bosnia-Herzegovina (Order, para. 57).

The elements of an interim judgment contained in the first two provisional measures become clearly identifiable if their contents are interpreted on the basis of argumentum a contrario. It appears that the Applicant is not under any specific obligation to "immediately... take all measures within its power to prevent commission of the crime of genocide", nor should the Applicant [p 463]

"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 com-mit genocide, of direct and public incitement to commit genocide, or of complicity in genocide, whether directed against the Muslim population of Bosnia-Herzegovina or against any other national, ethnical, racial or religious group".

And this at a stage of the proceedings when the Court cannot make definitive findings of fact or of imputability and when, at the same time, it is evident that "where the risk of genocide was not in Yugoslav territory but in Bosnia-Herzegovina" and when it was equally evident that both on the grounds of general international law and on the grounds of its explicit admission, the Applicant prima facie is primarily responsible for acts of genocide alleged to have been committed in Bosnia-Herzegovina, and when the Human Rights Committee, after having

"welcomed the... affirmation that the Republic of Bosnia-Herzegovina considers itself legally responsible for whatever has taken place not only in that part of its territory on which it has factual and effective control but also in the other parts of its territory",
recommended that the measures already undertaken by the Applicant

"should be further intensified and systematically monitored so as to ensure that 'ethnic cleansing' does not take place, whether as a matter of revenge or otherwise;..." (United Nations, Human Rights Committee, International Covenant on Civil and Political Rights, CCPR/ C/79/Add.l4,28 December 1992).

What is more, that the measures should be of such a nature is, to a certain extent, in disharmony with the reasoning of the Court. For in paragraph 45 of the Order of 8 April 1993, it is stated expressis verbis that the Court concluded that

"there is a grave risk of acts of genocide being committed [and that] 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".

It is obvious that this premise has not been legally and technically implemented in the operative part of the Order of 8 April 1993.

A possible explanation might be found in the position that the obligation of prevention of genocide for a State as regards acts or threatened acts on its own sovereign territory is evident and its implications do not need to be spelled out or explained in the form of provisional measures.[p 464]

However, such a position does not appear to be tenable and for two principal reasons:

(1) In this particular dispute, the Court has linked its prima facie jurisdiction in the indication of provisional measures to the Convention on Genocide. With respect to the obligation of prevention of the crime of genocide, the Convention does not contain the principle of universal repression. It has firmly opted for the territorial principle of the obligation of prevention and "the only action relating to crimes committed outside the territory of the Contracting Party is by organs of the United Nations within the scope of the general competence" (Nehem-iah Robinson, The Genocide Convention, Its Origins and Interpretation, The Institute of Jewish Affairs, World Jewish Congress, New York, 1949, pp. 13-14).

(2) The commission of acts in the territory of another State, be it recognized or unrecognized, would mean violation of the norm of the prohibition of intervention which is, by its nature, jus cogens.

Provisional measures such as those indicated under A (1) and A (2) are risky even from the standpoint of the Court itself. The party that appears to gain from them may be tempted to repeatedly submit fresh requests for provisional measures whereby the Court may find itself in a position of making an estoppel in terms of the facts presented by that party. The dangers emanating from such a situation are all the greater in the event of a close link existing between the provisional measures, on the one hand, and the actual subject-matter of the case, on the other.
As far as the provisional measure under B is concerned, viewed in abstracto in technical legal terms it is a perfect expression of the Court's practice with respect to provisional measures.

The formulation, however, is not appropriate in view of the circumstances of the case. It places both Parties on an equal footing though it is clear from the Applicant's submissions that by insisting on extending the Court's jurisdiction beyond the Genocide Convention, on the one hand, and by the inappropriate content of the request, on the other, its consequence objectively is to "extend the existing dispute over the prevention or punishment of the crime of genocide" and to "render it more difficult of solution".

It is my opinion that in the light of the relevant circumstances, two models of provisonal measures are indicated:

(a) the model of provisional measures which Judge Bedjaoui referred to in the Lockerbie case as "a general, independent measure, in the form of an appeal to the Parties ..." (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992,I.C.J. Reports 1992, dissenting opinion of Judge Bedjaoui, p. 48) which in substance corresponds to the message addressed by the President of the Court to both Parties on 5 August 1993; [p 465]

(b) the model of specific provisional measures which would use as a pivotal point the premise of notoriety and which would be in line with the necessity of seeking a peaceful solution to the civil war in Bosnia-Herzegovina, on the one hand, and the undertaking of all measures which could contribute to the prevention of any commission, continuance or encouragement of the heinous international crime of genocide, on the other.

The specific provisional measures could be indicated either alternatively or cumulatively in relation to the general provisional measure.

In view of the fact that the provisional measures indicated in the Order differ substantially, it is with regret that I avail myself of the right to express a dissenting opinion.

(Signed) Milenko Kreca.

 
     

 

 

 

 

African Commission on Human and Peoples' Rights | Central American Court of Justice | Committee Against Torture
Committee on the Elimination of Discrimination against Women | Committee on the Elimination of Racial Discrimination
Economic Court of the Commonwealth of Independent States | International Commissions of Inquiry | International Court of Justice
International Prize Court | Permanent Court of International Justice

 

home | terms & conditions | copyright | about

 

Copyright © 1999-2011 WorldCourts. All rights reserved.