2 June 1999

 

General List No. 114

 
     

international Court of Justice

     
 

Legality of Use of Force

 
     

Yugoslavia

 

v. 

United States

     
     
 

Order

 
     
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BEFORE:

President: Schwebel;

Vice-President: Weeramantry;

Judges: Oda, Bedjaoui, Guillaume,Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans;

Judges Ad Hoc: Kreca.

   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1999.06.02_use_of_force1.htm 
   
Citation: Legality of Use of Force (Yugo. v. U.S.), 1999 I.C.J. 916 (Order of June 2)
   
Represented By: Yugoslavia: Mr. Rodoljub Etinski, Agent;
Mr. Ian Brownlie;
Mr. Paul J. I. M. de Waart;
Mr. Eric Suy;
Mr. Miodrag Mitic;
Mr. Olivier Corten;

United States: Mr. David Andrews, Agent;
Mr. John Crook,
Mr. Michael Matheson.

 
     
 
 
     
 

[p.916]
The International Court of Justice,

Composed as above. After deliberation,

Having regard to Articles 41 and 48 of the Statute of the Court and to Articles 73 and 74 of the Rules of Court,

Having regard to the Application by the Federal Republic of Yugoslavia (hereinafter "Yugoslavia") filed in the Registry of the Court on 29 April 1999, instituting proceedings against the United States of America (hereinafter "the United States") "for violation of the obligation not to use force", [p 917]

Makes the following Order:

1. Whereas in that Application Yugoslavia defines the subject of the dispute as follows:

"The subject-matter of the dispute are acts of the United States of America by which it has violated its international obligation banning the use of force against another State, the obligation not to intervene in the internal affairs of another State, the obligation not to violate the sovereignty of another State, the obligation to protect the civilian population and civilian objects in wartime, the obligation to protect the environment, the obligation relating to free navigation on international rivers, the obligation regarding fundamental human rights and freedoms, the obligation not to use prohibited weapons, the obligation not to deliberately inflict conditions of life calculated to cause the physical destruction of a national group" ;

2. Whereas in the said Application Yugoslavia refers, as a basis for the jurisdiction of the Court, to 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 the "Genocide Convention"), and to Article 38, paragraph 5, of the Rules of Court;

3. Whereas in its Application Yugoslavia states that the claims submitted by it to the Court are based upon the following facts:

"The Government of the United States of America, together with the Governments of other Member States of NATO, took part in the acts of use of force against the Federal Republic of Yugoslavia by taking part in bombing targets in the Federal Republic of Yugoslavia. In bombing the Federal Republic of Yugoslavia military and civilian targets were attacked. Great number of people were killed, including a great many civilians. Residential houses came under attack. Numerous dwellings were destroyed. Enormous damage was caused to schools, hospitals, radio and television stations, cultural and health institutions and to places of worship. A large number of bridges, roads and railway lines were destroyed. Attacks on oil refineries and chemical plants have had serious environmental effects on cities, towns and villages in the Federal Republic of Yugoslavia. The use of weapons containing depleted uranium is having far-reaching consequences for human life. The above-mentioned acts are deliberately creating conditions calculated at the physical destruction of an ethnic group, in whole or in part. The Government of the United States of America is taking part in the training, arming, financing, equipping and supplying the so-called 'Kosovo Liberation Army'"; [p 918]

and whereas it further states that the said claims are based on the following legal grounds:

"The above acts of the Government of the United States of America represent a gross violation of the obligation not to use force against another State. By financing, arming, training and equipping the so-called 'Kosovo Liberation Army", support is given to terrorist groups and the secessionist movement in the territory of the Federal Republic of Yugoslavia in breach of the obligation not to intervene in the internal affairs of another State. In addition, the provisions of the Geneva Convention of 1949 and of the Additional Protocol No. 1 of 1977 on the protection of civilians and civilian objects in time of war have been violated. The obligation to protect the environment has also been breached. The destruction of bridges on the Danube is in contravention of the provisions of Article 1 of the 1948 Convention on free navigation on the Danube. The provisions of the International Covenant on Civil and Political Rights and of the International Covenant on Economic, Social and Cultural Rights of 1966 have also been breached. Furthermore, the obligation contained in the Convention on the Prevention and Punishment of the Crime of Genocide not to impose deliberately on a national group conditions of life calculated to bring about the physical destruction of the group has been breached. Furthermore, the activities in which the United States of America is taking part are contrary to Article 53, paragraph 1, of the Charter of the United Nations";

4. Whereas the claims of Yugoslavia are formulated as follows in the Application:

"The Government of the Federal Republic of Yugoslavia requests the International Court of Justice to adjudge and declare:

— by taking part in the bombing of the territory of the Federal Republic of Yugoslavia, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use force against another State;

— by taking part in the training, arming, financing, equipping and supplying terrorist groups, i.e. the so-called 'Kosovo Liberation Army', the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation not to intervene in the affairs of another State;

— by taking part in attacks on civilian targets, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation to spare the civilian population, civilians and civilian objects; [p 919]

— by taking part in destroying or damaging monasteries, monuments of culture, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation not to commit any act of hostility directed against historical monuments, works of art or places of worship which constitute cultural or spiritual heritage of people;

— by taking part in the use of cluster bombs, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons, i.e. weapons calculated to cause unnecessary suffering;

— by taking part in the bombing of oil refineries and chemical plants, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation not to cause considerable environmental damage;

— by taking part in the use of weapons containing depleted uranium, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons and not to cause far-reaching health and environmental damage;

— by taking part in killing civilians, destroying enterprises, communications, health and cultural institutions, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect the right to life, the right to work, the right to information, the right to health care as well as other basic human rights;

— by taking part in destroying bridges on international rivers, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect freedom of navigation on international rivers;
— by taking part in activities listed above, and in particular by causing enormous environmental damage and by using depleted uranium, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation not to deliberately inflict on a national group conditions of life calculated to bring about its physical destruction, in whole or in part;

— the United States of America is responsible for the violation of the above international obligations;

— the United States of America is obliged to stop immediately the violation of the above obligations vis-ä-vis the Federal Republic of Yugoslavia;

— the United States of America is obliged to provide compensation for the damage done to the Federal Republic of Yugoslavia and to its citizens and juridical persons"; [p 920]

and whereas, at the end of its Application, Yugoslavia reserves the right to amend and supplement it;

5. Whereas on 29 April 1999, immediately after filing its Application, Yugoslavia also submitted a request for the indication of provisional measures pursuant to Article 73 of the Rules of Court; and whereas that request was accompanied by a volume of photographic annexes produced as "evidence";
6. Whereas, in support of its request for the indication of provisional measures, Yugoslavia contends inter alia that, since the onset of the bombing of its territory, and as a result thereof, about 1,000 civilians, including 19 children, have been killed and more than 4,500 have sustained serious injuries; that the lives of three million children are endangered; that hundreds of thousands of citizens have been exposed to poisonous gases; that about one million citizens are short of water supply; that about 500,000 workers have become jobless; that two million citizens have no means of livelihood and are unable to ensure minimum means of sustenance; and that the road and railway network has suffered extensive destruction; whereas, in its request for the indication of provisional measures, Yugoslavia also lists the targets alleged to have come under attack in the air strikes and describes in detail the damage alleged to have been inflicted upon them (bridges, railway lines and stations, roads and means of transport, airports, industry and trade, refineries and warehouses storing liquid raw materials and chemicals, agriculture, hospitals and health care centres, schools, public buildings and housing facilities, infrastructure, telecommunications, cultural-historical monuments and religious shrines); and whereas Yugoslavia concludes from this that:

"The acts described above caused death, physical and mental harm to the population of the Federal Republic of Yugoslavia; huge devastation; heavy pollution of the environment, so that the Yugoslav population is deliberately imposed conditions of life calculated to bring about physical destruction of the group, in whole or in part";

7. Whereas, at the end of its request for the indication of provisional measures, Yugoslavia states that

"If the proposed measure were not to be adopted, there will be new losses of human life, further physical and mental harm inflicted on the population of the FR of Yugoslavia, further destruction of civilian targets, heavy environmental pollution and further physical destruction of the people of Yugoslavia";

and whereas, while reserving the right to amend and supplement its request, Yugoslavia requests the Court to indicate the following measure:

"The United States of America shall cease immediately its acts of [p 921]use of force and shall refrain from any act of threat or use of force against the Federal Republic of Yugoslavia";

8. Whereas the request for the indication of provisional measures was accompanied by a letter from the Agent of Yugoslavia, addressed to the President and Members of the Court, which read as follows:

"I have the honour to bring to the attention of the Court the latest bombing of the central area of the town of Surdulica on 27 April 1999 at noon resulting in losses of lives of civilians, most of whom were children and women, and to remind of killings of peoples in Kursumlija, Aleksinac and Cuprija, as well as bombing of a refugee convoy and the Radio and Television of Serbia, just to mention some of the well-known atrocities. Therefore, I would like to caution the Court that there is a highest probability of further civilian and military casualties.

Considering the power conferred upon the Court by Article 75, paragraph 1, of the Rules of Court and having in mind the greatest urgency caused by the circumstances described in the Requests for provisional measure of protection I kindly ask the Court to decide on the submitted Requests proprio motu or to fix a date for a hearing at earliest possible time";

9. Whereas on 29 April 1999, the day on which the Application and the request for the indication of provisional measures were filed in the Registry, the Registrar sent to the United States Government signed copies of the Application and of the request, in accordance with Article 38, paragraph 4, and Article 73, paragraph 2, of the Rules of Court; and whereas he also sent to that Government copies of the documents accompanying the Application and the request for the indication of provisional measures;

10. Whereas on 29 April 1999 the Registrar informed the Parties that the Court had decided, pursuant to Article 74, paragraph 3, of the Rules of Court, to hold hearings on 10 and 11 May 1999, where they would be able to present their observations on the request for the indication of provisional measures;

11. Whereas, pending the notification under Article 40, paragraph 3, of the Statute and Article 42 of the Rules of Court, by transmittal of the printed bilingual text of the Application to the Members of the United Nations and other States entitled to appear before the Court, the Regis-trar on 29 April 1999 informed those States of the filing of the Application and of its subject-matter, and of the filing of the request for the indication of provisional measures;

12. Whereas, since the Court includes upon the bench no judge of Yugoslav nationality, the Yugoslav Government has availed itself of the provisions of Article 31 of the Statute of the Court to choose Mr. Milenko Kreca to sit as judge ad hoc in the case; and whereas no [p 922] objection to that choice was raised within the time-limit fixed for the purpose pursuant to Article 35, paragraph 3, of the Rules of Court;

13. Whereas, at the public hearings held between 10 and 12 May 1999, oral observations on the request for the indication of provisional measures were presented by the following:

On behalf of Yugoslavia:

Mr. Rodoljub Etinski, Agent,
Mr. Ian Brownlie,
Mr. Paul J. I. M. de Waart,
Mr. Eric Suy,
Mr. Miodrag Mitic,
Mr. Olivier Corten;

On behalf of the United States:
Mr. David Andrews, Agent;
Mr. John Crook,
Mr. Michael Matheson;

14. Whereas, in this phase of the proceedings, the Parties presented the following submissions:
On behalf of Yugoslavia:

"[T]he Court [is asked] to indicate the following provisional measure:

[T]he United States of America . . . shall cease immediately the acts of use of force and shall refrain from any act of threat or use of force against the Federal Republic of Yugoslavia";

On behalf of the United States of America:

"That the Court reject the request of the Federal Republic of Yugoslavia for the indication of provisional measures";

***

15. Whereas the Court is deeply concerned with the human tragedy, the loss of life, and the enormous suffering in Kosovo which form the background of the present dispute, and with the continuing loss of life and human suffering in all parts of Yugoslavia;

16. Whereas the Court is profoundly concerned with the use of force in Yugoslavia; whereas under the present circumstances such use raises very serious issues of international law;

17. Whereas the Court is mindful of the purposes and principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and security under the Charter and the Statute of the Court; [p 923]

18. Whereas the Court deems it necessary to emphasize that all parties appearing before it must act in conformity with their obligations under the United Nations Charter and other rules of international law, including humanitarian law;

***

19. Whereas the Court, under its Statute, does not automatically have jurisdiction over legal disputes between States parties to that Statute or between other States to whom access to the Court has been granted; whereas the Court has repeatedly stated "that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction" (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 7995, p. 101, para. 26); and whereas the Court can therefore exercise jurisdiction only between States parties to a dispute who not only have access to the Court but also have accepted the jurisdiction of the Court, either in general form or for the individual dispute concerned;
20. 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, prima facie, to afford a basis on which the jurisdiction of the Court might be established;

**

21. Whereas in its Application Yugoslavia claims, in the first place, to found the jurisdiction of the Court upon Article IX of the Genocide Convention, which 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 International Court of Justice at the request of any of the parties to the dispute";

whereas it is not disputed that both Yugoslavia and the United States are parties to the Genocide Convention; but whereas, when the United States ratified the Convention on 25 November 1988, it made the following reservation:

"That with reference to Article IX of the Convention, before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this Article, the specific consent of the United States is required in each case"; [p 924]

22. Whereas the United States contends that "[its] reservation [to Article IX] is clear and unambiguous"; that "[t]he United States has not given the specific consent [that reservation] requires [and] . . . will not do so"; and that Article IX of the Convention cannot in consequence found the jurisdiction of the Court in this case, even prima facie; whereas the United States also observed that reservations to the Genocide Convention are generally permitted; that its reservation to Article IX is not contrary to the Convention's object and purpose; and that, "[s]ince . . . Yugoslavia did not object to the . . . reservation, [it] is bound by it"; and whereas the United States further contends that there is no "legally sufficient . . . connection between the charges against the United States contained in the Application and [the] supposed jurisdictional basis under the Genocide Convention"; and whereas the United States further asserts that Yugoslavia has failed to make any credible allegation of violation of the Genocide Convention, by failing to demonstrate the existence of the specific intent required by the Convention to "destroy, in whole or in part, a national, ethnical, racial or religious group, as such", which intent could not be inferred from the conduct of conventional military operations against another State.

23. Whereas Yugoslavia disputed the United States interpretation of the Genocide Convention, but submitted no argument concerning the United States reservation to Article IX of the Convention;

24. Whereas the Genocide Convention does not prohibit reservations; whereas Yugoslavia did not object to the United States reservation to Article IX; and whereas the said reservation had the effect of excluding that Article from the provisions of the Convention in force between the Parties;

25. Whereas in consequence Article IX of the Genocide Convention cannot found the jurisdiction of the Court to entertain a dispute between Yugoslavia and the United States alleged to fall within its provisions; and whereas that Article manifestly does not constitute a basis of jurisdiction in the present case, even prima facie;

**

26. Whereas in its Application Yugoslavia claims, in the second place, to found the jurisdiction of the Court on Article 38, paragraph 5, of the Rules of Court, which reads as follows:

"5. When the applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made, the application shall be transmitted to that State. It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court's jurisdiction for the purposes of the case"; [p 925]

27. Whereas the United States observes that it "has not consented to jurisdiction under Article 38, paragraph 5, [of the Rules of Court] and will not do so";

28. Whereas it is quite clear that, in the absence of consent by the United States, given pursuant to Article 38, paragraph 5, of the Rules, the Court cannot exercise jurisdiction in the present case, even prima facie;

**

29. Whereas it follows from what has been said above that the Court manifestly lacks jurisdiction to entertain Yugoslavia's Application; whereas it cannot therefore indicate any provisional measure whatsoever in order to protect the rights invoked therein; and whereas, within a system of consensual jurisdiction, to maintain on the General List a case upon which it appears certain that the Court will not be able to adjudicate on the merits would most assuredly not contribute to the sound administration of justice;

***

30. Whereas there is a fundamental distinction between the question of the acceptance by a State of the Court's jurisdiction and the compatibility of particular acts with international law; the former requires consent; the latter question can only be reached when the Court deals with the merits after having established its jurisdiction and having heard full legal arguments by both parties;

31. Whereas, whether or not States accept the jurisdiction of the Court, they remain in any event responsible for acts attributable to them that violate international law, including humanitarian law; whereas any disputes relating to the legality of such acts are required to be resolved by peaceful means, the choice of which, pursuant to Article 33 of the Charter, is left to the parties;

32. Whereas in this context the parties should take care not to aggravate or extend the dispute;

33. Whereas, when such a dispute gives rise to a threat to the peace, breach of the peace or act of aggression, the Security Council has special responsibilities under Chapter VII of the Charter;

***
34. For these reasons,

THE COURT,

(1) By twelve votes to three,

Rejects the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia on 29 April 1999; [p 926]

IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel: Judges Oda, Bedjaoui. Guiliaume, Ranjeva, Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans;

AGAINST: Judges Shi, Vereshchetin; Judge ad hoc Kreca:

(2) By twelve votes to three,

Orders that the case be removed from the List.

IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel; Judges Oda, Bedjaoui, Guiliaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma. Higgins, Kooijmans;
AGAINST: Judges Vereshchetin. Parra-Aranguren; Judge ad hoc Kreca.

Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this second day of June, one thousand nine hundred and ninety-nine, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Federal Republic of Yugoslavia and the Government of the United States of America, respectively.

(Signed) Christopher G. Weeramantry,
Vice-President.

(Signed) Eduardo Valencia-Ospina,
Registrar.

Judges Shi, Koroma and Vereshchetin append declarations to the Order of the Court.
Judges Oda and Parra-Aranguren append separate opinions to the Order of the Court.
Judge ad hoc Kreca appends a dissenting opinion to the Order of the Court.

(Initialled) C.G.W.
(Initialled) E.V.O.

[p 927]

DECLARATION OF JUDGE SHI

I am in agreement with the majority of the Court that, in the present case, no basis of prima facie jurisdiction can be found for the indication of provisional measures requested by the Applicant.

Nevertheless I am of the opinion that, being confronted with the urgent situation of a human tragedy involving loss of life and suffering which arises from the use of force in and against Yugoslavia, the Court ought to have contributed to the maintenance of international peace and security in so far as its judicial functions permit.

The Court would have been fully justified in point of law if, immediately upon receipt of the request by the Applicant for the indication of provisional measures, and regardless of what might be its conclusion on prima facie jurisdiction pending the final decision, it had issued a general statement appealing to the Parties to act in compliance with their obligations under the Charter of the United Nations and all other rules of international law relevant to the situation, including international humanitarian law, and at least not to aggravate or extend their dispute. In my view, nothing in the Statute or the Rules of Court prohibits the Court from so acting. According to the Charter, the Court is after all the principal judicial organ of the United Nations, with its Statute as an integral part of the Charter; and by virtue of the purposes and principles of the Charter, including Chapter VI (Pacific Settlement of Disputes), the Court has been assigned a role within the general framework of the United Nations for the maintenance of international peace and security. There is no doubt that to issue such a general statement of appeal is within the implied powers of the Court in the exercise of its judicial functions. Now that the Court has made its final decision on the request by the Applicant, it has failed to take an opportunity to make its due contribution to the maintenance of international peace and security when that is most needed.

Moreover, in his letter addressed to the President and the Members of the Court, the Agent of Yugoslavia stated:

"Considering the power conferred upon the Court by Article 75, paragraph 1, of the Rules of Court and having in mind the greatest urgency caused by the circumstances described in the Requests for provisional measure of protection I kindly ask the Court to decide on the submitted Requests propria motu or to fix a date for a hearing at earliest possible time." [p 928]

In the recent LaGrand case, the Court, at the request of the applicant State and despite the objection of the respondent State, decided to make use of its above-mentioned power under Article 75, paragraph 1, of the Rules of Court without hearing the respondent State in either written or oral form (LaGrand (Germany v. United States of America), Order of 3 March 1999, I.C.J. Reports 1999, pp. 13 and 14, paras. 12 and 21). By contrast, in the present case the Court failed to take any positive action in response to the similar request made by the Agent of Yugoslavia in a situation far more urgent even than that in the former case.
It is for these reasons that I felt compelled to vote against the operative paragraph 34 (1) of the present Order.

(Signed) Shi Jiuyong.


[p 929]

DECLARATION OF JUDGE KOROMA

These are perhaps the most serious cases to come before the Court for injunctive relief. Under Article 41 of the Statute of the Court, a request for provisional measures should have as its purpose the preservation of the respective rights of either party to a dispute pending the Court's decision. Jurisprudentially, the granting of such relief is designed to prevent violence, the use of force, to safeguard the peace, as well as serving as an important part of the dispute settlement process under the Charter. Where the risk of irreparable harm is said to exist or further action might aggravate or extend a dispute, the granting of the relief becomes all the more necessary. It is thus one of the most important functions of the Court.

However, the indication of such relief by the Court can take place only in accordance with the Statute. In this regard prima facie jurisdiction has come to be regarded by the Court as the criteria for granting such relief, and where, in the Court's view, this is found not to exist, or other circumstances predominate, the Court according to its jurisprudence will not indicate the requested relief.

On the other hand, the conclusion reached by the Court that the dispute between Yugoslavia and some of the respondent States arose before 25 April 1999 and accordingly does not come within the scope of the compulsory jurisdiction of the Court as accepted by Yugoslavia under the terms of its declaration, does not appear to me to be correct, let alone legally tenable. The correct legal position, in my view, is as reflected in Draft Article 25 on State Responsibility of the Report of the International Law Commission. The Article states as follows:

"The breach of an international obligation, by an act of the State composed of a series of actions or omissions in respect of separate cases, occurs at the moment when that action or omission of the series is accomplished which establishes the existence of the composite act. Nevertheless, the time of commission of the breach extends over the entire period from the first of the actions or omissions constituting the composite act not in conformity with the international obligation and so long as such actions or omissions are repeated." (Yearbook of the International Law Commission, 1978, Vol. II, Part Two, Art. 25, p. 89.)

In other words, and as stated in the commentary on the Article, the time [p 930] of the Commission of this breach is not limited to the moment at which the act begins, but extends over the whole period during which the act takes place and continues contrary to the requirements of the international obligation. Therefore, the Court's finding that Yugoslavia had not established the existence of a specific dispute, distinct from the preceding one, which arose after 25 April 1999 does not appear to me tenable in law.

Nevertheless, the Court, as the principal judicial organ of the United Nations, whose primary raison d'etre remains the preservation of international peace and security, is under a positive obligation to contribute to the maintenance of international peace and security and to provide a judicial framework for the resolution of a legal dispute, especially one which not only threatens international peace and security but also involves enormous human suffering and continuing loss of life as well as the disintegration of normal society. Given the prevalence of these circum-stances in this dispute, the Court has decided, rightly in my view, not to remain silent. I have therefore joined with other Members of the Court in calling for the peaceful resolution of this conflict pursuant to Article 33 of the Charter, and in urging the Parties not to aggravate or extend the dispute and to respect international law, including humanitarian law and the human rights of all the citizens of Yugoslavia.

(Signed) Abdul G. Koroma.

[p 931]

DECLARATION OF JUDGE VERESHCHETIN

The extraordinary circumstances in which Yugoslavia made its request for interim measures of protection imposed a need to react immediately. The Court should have promptly expressed its profound concern over the unfolding human misery, loss of life and serious violations of interna-tional law which by the time of the request were already a matter of public knowledge. It is unbecoming for the principal judicial organ of the United Nations, whose very raison d'etre is the peaceful resolution of international disputes, to maintain silence in such a situation. Even if ultimately the Court may come to the conclusion that, due to constraints in its Statute, it cannot indicate fully fledged provisional measures in accordance with Article 41 of the Statute in relation to one or another of the respondent States, the Court is inherently empowered, at the very least, immediately to call upon the Parties neither to aggravate nor to extend the conflict and to act in accordance with their obligations under the Charter of the United Nations. This power flows from its responsibility for the safeguarding of international law and from major consid-erations of public order. Such an authoritative appeal by the "World Court", which would also be consistent with Article 41 of its Statute and Article 74, paragraph 4, and Article 75, paragraph 1, of its Rules, could have a sobering effect on the Parties involved in the military conflict, un-precedented in European history since the end of the Second World War.

The Court was urged to uphold the rule of law in the context of large-scale gross violations of international law, including of the Charter of the United Nations. Instead of acting expeditiously and, if necessary, proprio motu, in its capacity as "the principal guardian of international law", the majority of the Court, more than one month after the requests were made, rejected them in a sweeping way in relation to all the cases brought before the Court, including those where, in my view, the prima facie jurisdiction of the Court could have been clearly established. Moreover, this decision has been taken in a situation in which deliberate intensification of bombardment of the most heavily populated areas is causing unabated loss of life amongst non-combatants and physical and mental harm to the population in all parts of Yugoslavia.

For the foregoing reasons, I cannot concur with the inaction of the Court in this matter, although I concede that in some of the cases insti-]p 932]tuted by the Applicant the basis of the Court's jurisdiction, at this stage of the proceedings, is open to doubt, and in relation to Spain and the United States is non-existent.

(Signed) Vladlen S. Vereshchetin.

[p 933]

SEPARATE OPINION OF JUDGE ODA

Table of contents
 

 

Paragraphs

 

 

I. Introduction

1-2

 

 

II. The Status of the Federal Republic of Yugoslavia  - A Preliminary Issue

3-4

 

 

III. Lack of the Court's Jurisdiction under Article 36. Para­graph 2, of the Statute and Article 38, Paragraph 5, of the Rules of Court

 

 

 

(1) No "legal dispute" within the meaning of Article 36, para­graph 2, of the Statute exists between the Federal Republic of Yugoslavia and the respondent State

5

 

 

(2) Article 38, paragraph 5, of the Rules of Court

6

 

 

(3) Article 36, paragraph 2, of the Statute of the Court

7-9

 

 

(4) The optional clause

10-16

 

 

IV. Lack of the Court's Jurisdiction under the 1930 Convention between Belgium and Yugoslavia and the 1931 Treaty between the Netherlands and Yugoslavia

17-18

 

 

V. Lack of the Court's Jurisdiction under the Genocide Con­vention

 

 

 

(1) Preliminary observations

19

 

 

(2) No disputes relating to the Genocide Convention exist between the Parties

20-21

 

 

(3) General character of the Genocide Convention

22

 

 

(4) Concluding observations

23

 

 

VI. In the Present Circumstances the Requests for the Indication

of Provisional Measures are Inadmissible

24

 

 

VII. Removal of the Cases from the General List ok the Court

Due to the Lack of Jurisdiction

25-29



[p 934]

I. Introduction

1. I entirely support the decision of the Court in dismissing the requests for the indication of provisional measures submitted on 29 April 1999 by the Federal Republic of Yugoslavia against ten respondent States — Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, Spain, the United Kingdom and the United States.

While favouring subparagraph (2) of the operative paragraph in which the Court ordered that the case be removed from the General List of the Court in the cases of Spain and the United States, I voted against subparagraph (2) of the operative paragraph in the other eight cases in which the Court ordered that it '' [rJeserves the subsequent procedure for further decision" because I believe that those eight cases should also be removed from the General List of the Court.

2. I differ from the Court's reasoning on some aspects of the cases, not only on matters concerning the dismissal of the requests but also on some other matters relating to the Applications filed in the Registry of the Court by the Federal Republic of Yugoslavia on the same day, namely 29 April 1999. It is difficult, even impossible, for me to give a sufficient explanation of my position in the extremely limited time — if I may say so, an unreasonably short period of time, too short to do proper justice to the cases — that has been made available to the judges for preparing their opinions. I very much regret that this lack of time has given me no choice but to cover all ten cases in a single opinion. Certain parts of this opinion may thus not be relevant to a particular case.

II. The Status of the Federal Republic of Yugoslavia — A Preliminary Issue

3. I consider that the Federal Republic of Yugoslavia is not a Member of the United Nations and thus not a party to the Statute of the International Court of Justice.

Following the unrest in Yugoslavia in the early 1990s and the dissolution of the Socialist Federal Republic of Yugoslavia, some of its former Republics achieved independence and then applied for membership of the United Nations. On 22 May 1992, Bosnia and Herzegovina, Croatia and Slovenia became Members of the United Nations, followed on 8 April 1993 by the former Yugoslav Republic of Macedonia. However, the claim by the Federal Republic of Yugoslavia (Serbia and Montenegro) to continue automatically the membership in the United Nations of the former Socialist Federal Republic of Yugoslavia was not recognized.

On 22 September 1992 the General Assembly, pursuant to Security Council resolution 757 (1992) of 30 May 1992 and Security Council resolution 777 (1992) of 19 September 1992, adopted resolution 47/1 stating that [p 935]

"the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations"

and decided that it "should apply for membership in the United Nations". The letter addressed to the Permanent Representatives of Bosnia and Herzegovina and Croatia dated 29 September 1992 from the Under-Secretary-General, the Legal Counsel of the United Nations, stated that while the above-mentioned General Assembly resolution neither terminated nor suspended Yugoslavia's membership in the Organization,

"the General Assembly has stated unequivocally that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot automatically continue the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations".

In fact, there seems to have been an understanding that this rather exceptional situation would be resolved by the admission of the Federal Republic of Yugoslavia to the United Nations as a new Member. However, no further developments have occurred and the Federal Republic of Yugoslavia has not been admitted to the United Nations, as a "peace-loving State[s] which accept[s] the obligations contained in the [United Nations] Charter" (United Nations Charter, Art. 4).

4. The Court is open to the States parties to its Statute (Art. 35). Only States parties to the Statute are allowed to bring cases before the Court. It therefore follows, in my view, that the Federal Republic of Yugoslavia, not being a Member of the United Nations and thus not a State party to the Statute of the Court, has no standing before the Court as an applicant State. The Applications presented by the Federal Republic of Yugoslavia should therefore be declared inadmissible for this reason alone and should be removed from the General List of the Court.

However, if I am not correct on this, and assuming, for the sake of argument, that the Federal Republic of Yugoslavia does in fact have standing before the Court, I shall now go on to discuss whether the Federal Republic of Yugoslavia can bring the present Applications on the basis of certain provisions of the Statute and of the Rules of Court, of the 1930 and 1931 instruments in the cases of Belgium and the Netherlands, and of the 1948 Genocide Convention.

III. Lack of the Court's Jurisdiction under Article 36, Paragraph 2, of the Statute and Article 38, Paragraph 5, of the Rules of Court

(I) No "Legal Dispute" within the Meaning of Article 36, Paragraph 2, of the Statute Exists between the Federal Republic of Yugoslavia and the Respondent State

5. The Applications of the Federal Republic of Yugoslavia refer to the acts of the ten respondent States by which the Federal Republic of Yugo-[p 936]slavia alleges that they have violated certain obligations as listed in the section of each Application entitled "Subject of the Dispute". The acts which are listed in the section of each Application entitled "Claim" may have occurred, but the fact alone that a State allegedly committed these acts or actions as described in the section "Facts upon Which the Claim is Based" cannot constitute the existence of a "legal dispute" between two States within the meaning of Article 36, paragraph 2, of the Statute.

The question of whether certain acts of a State which may infringe upon the rights and interests of another State should be considered as justifiable under international law may well be a legitimate issue to be raised, but not as a "legal dispute" in which both sides are to present arguments concerning their respective rights and duties under international law in their relations with each other. Certainly such a "legal dispute" between Yugoslavia and the respondent States had not existed when the Federal Republic of Yugoslavia filed the Applications to institute the proceedings in these cases. What did exist on 29 April 1999 was simply the action of bombing or armed attacks conducted by the NATO armed forces in which the military powers of each of the respondent States were alleged to have participated. The issues — but not the "legal disputes" — concerning the bombing and armed attacks should properly be dealt with by the Security Council under Chapters V, VI, VII and VIII of the Charter or, in some cases, by the General Assembly under Chapter IV. For this reason alone, the Application should, on the basis of Article 36, paragraph 2, of the Statute be declared inadmissible.

However, for the sake of argument, I shall proceed on the assumption that there exists between the Parties a "legal dispute" within the meaning of Article 36, paragraph 2, of the Statute.

(2) Article 38, Paragraph 5, of the Rules of Court

6. In its Applications against France, Germany, Italy, Spain and the United States, the Federal Republic of Yugoslavia invokes Article 38, paragraph 5, of the Rules of Court, in the hope that consent to the jurisdiction of the Court might be given by those States. However, France, Ger-many, Italy, Spain and the United States have given no such consent to the Court's jurisdiction and it is clear from their arguments in the oral hearings that they will not give it. There is thus no room for the Court to entertain these five Applications on the basis of Article 38, paragraph 5, of the Rules of Court. The concept of forum prorogatum does not apply in these five cases. [p 937]

(3) Article 36, Paragraph 2, of the Statute of the Court

7. On 25 April 1999 the Federal Republic of Yugoslavia registered with the Secretariat of the United Nations its declaration recognizing the compulsory jurisdiction of the Court in accordance with Article 36, paragraph 2, of the Statute. The main point to be considered, even on the assumption that the registration of the declaration by the Federal Republic of Yugoslavia on 25 April 1999 was valid, is whether this declaration is valid in connection with the Applications of the Federal Republic of Yugoslavia against six respondent States (Belgium, Canada, the Netherlands, Portugal, Spain and the United Kingdom) which have accepted the Court's compulsory jurisdiction in their respective declarations under the same provision of the Statute.

8. The cases of Spain and the United Kingdom are different from the other four cases. In its declaration of 29 October 1990, Spain expressly excluded from the Court's jurisdiction "disputes in regard to which the other party or parties have accepted the compulsory jurisdiction of the Court less than 12 months prior to the filing of the application bringing the dispute before the Court" and the United Kingdom in its declaration of 1 January 1969 similarly excluded certain disputes from the Court's jurisdiction:

"where the acceptance of the Court's compulsory jurisdiction on behalf of any other Party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court".
It is crystal clear that the Court cannot exercise jurisdiction to entertain these two Applications, one against Spain and the other against the United Kingdom, on the basis of Article 36, paragraph 2, of the Statute.

9. Belgium, Canada, the Netherlands and Portugal have accepted the compulsory jurisdiction of the Court in their respective declarations, deposited by Belgium on 17 June 1958, by Canada on 10 May 1994, by the Netherlands on 1 August 1956 and by Portugal on 19 December 1955. As no reservation directly relevant to the present issues has been included in the declarations of the four States mentioned above, it might be argued that the exercise of the Court's jurisdiction is justified under Article 36, paragraph 2, of the Statute in the cases of the Applications addressed to those four States. Literally interpreted, the declaration of the Federal Republic of Yugoslavia (assuming that the Federal Republic of Yugoslavia is indeed a party to the Statute of the Court and that the Federal Republic of Yugoslavia's declaration was legitimately registered) may be claimed as being valid in relation to other States which have made a similar declaration. However, I hold the view that acceptance by the Federal Republic of Yugoslavia of the Court's jurisdiction only a matter of days before it filed its Applications with the Court in these cases is not an act done in good faith and is contrary to the proper concept of acceptance of the compulsory jurisdiction of the Court under the "optional clause" in the Statute. [p 938]

(4) The Optional Clause

10. Provisions equivalent to Article 36, paragraph 2, of the Statute of the International Court of Justice were first introduced in 1920 when the Permanent Court of International Justice was being planned. In the view of the Council of the League of Nations, which initiated the drafting of the Statute of the Permanent Court of International Justice in 1920, the time was not yet ripe for the international community to accept a general obligation to be bound by the judicial settlement of disputes. In fact, the consent of each State to accept such an obligation was deemed to be absolutely necessary. The arguments surrounding that problem during the preparation of the Statute of the Permanent Court of International Justice clearly reflected the still prevalent concept of national sovereignty as dominant in the international community. It was in that context that Article 36, paragraph 2, of the Statute was drafted as one of the cornerstones of the Permanent Court of International Justice. The International Court of Justice, operating under the United Nations system, inherited it as what is still Article 36, paragraph 2, now of the Statute of the present Court.

11. By 1974, the year of the appeal by the United Nations General Assembly for the revitalization of the Court (United Nations doc. A/RES/ 3232 (XXIX)), 45 out of 141 States parties to the Statute had accepted the compulsory jurisdiction of the Court under the "optional clause". Since then, the number of accepting States has not increased significantly, despite the increased number of States parties to the Statute. As of July 1998, the States parties to the Statute numbered 187. However, only 60 States out of that 187 have declared their acceptance of the compulsory jurisdiction of the Court. The number of States accepting the compulsory jurisdiction has never exceeded one-third of the total number of States that might have at any one time accepted the compulsory jurisdiction of the Court.

It is also a remarkable fact that, with the exception of the United Kingdom, no permanent member of the Security Council has, at the present time, accepted the compulsory jurisdiction of the Court. In fact, in October 1985, on the occasion of the loss of its case against Nicaragua (at the jurisdictional phase), the United States proceeded to withdraw the acceptance which it had maintained ever since the Court was set up in 1946. Earlier, France had withdrawn its acceptance, just after being brought before the Court by Australia/New Zealand in connection with its nuclear tests in the atmosphere in the South Pacific in 1973.

12. The making of a declaration is a unilateral act, which, far from being in the nature of a concession, is in fact to the State's advantage, in that it confers a right of action against States in a similar position. However, as the making of the declaration functions in the same way as an [p 939] offer to conclude an agreement and depends on reciprocity, the practical effectiveness of the system depends on the number of States which are willing to participate in it and on the relative breadth of the obligations which they are prepared to accept thereunder. The acceptance is commonly hedged with reservations and exclusions.

The United Kingdom in its 1958 declaration (revised in 1963 and 1969) excluded disputes

"where the acceptance of the Court's compulsory jurisdiction on behalf of any other Party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court".

A similar 12-month exclusion clause is found in the following declarations: Hungary (1992), India (1974), Malta (1966), Mauritius (1968), New Zealand (1977), Philippines (1972), Poland (1996), Somalia (1963), Spain (1990). Cyprus has a six-month exclusion clause in its declaration (1988).

It is obvious that these States would, thanks to either a 12-month or a six-month exclusion clause, be in a position to withdraw their acceptance of the compulsory jurisdiction of the Court if faced with an application that they considered lacking in bona fides.

The United Kingdom's 1958 declaration also had a clause excluding "disputes in respect of which any other Party to the dispute has accepted the compulsory jurisdiction of the International Court of Justice only in relation to or for the purpose of the dispute". A similar clause is also now to be found in New Zealand's 1977 declaration.

13. The "optional clause" in effect plays a double role: one positive, in that it may on occasion enable a unilateral application to succeed, and the other negative, in that it may sometimes result in a respondent being brought to the Court against its will. Thus a State, by declaring its acceptance of the compulsory jurisdiction of the Court, may seek to acquire locus standi in a case in which the odds are in its favour, but on the other hand it may, where it feels placed at a disadvantage, try to release itself from the compulsory jurisdiction of the Court by the termi-nation or amendment of its declaration.

It has always been the desire of States, when faced with an application that in their view clearly lacks bona fides, to escape from their acceptance of the compulsory jurisdiction of the Court. The fact remains — and this is what I want to stress — that the judicial settlement of international disputes still remains in the hands of those States that are genuinely willing to defer to the International Court of Justice.

14. All of these facts indicate that some States accept the compulsory jurisdiction of the Court out of their good will but on the understanding that other States have the same good intentions. If this good faith is lack-[p 940]ing, the system of acceptance of the compulsory jurisdiction of the Court cannot work in the manner in which the drafters of the Statute intended.

Past practice reveals, in cases brought unilaterally in which preliminary objections made by the respondent States were overcome, that there have been only a few cases in which the judgments on the merits were properly complied with. This indicates the reality of judicial settlement in the world community. If States are brought to the Court against their will, then no real settlement of the dispute will follow. I feel that, even if a 12-month or similar exclusion clause is not included in a State's declaration, all States should have the right to refuse to be drawn into a case that is obviously not brought bona fide.

15. Generally speaking, I also believe that there should be some means of excluding from the Court's jurisdiction applications which may not have bona fide intentions or motives and that some provision should be made for such exclusion in the basic concept of the declaration of acceptance of the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute. It should be noted that, as a basic concept of international judiciary, the cornerstone of the granting by sovereign States of jurisdiction to the International Court of Justice in a dispute has always been the consent of those States.

16. In my view, it would be extremely odd to have a situation where the Court apparently has prima facie jurisdiction only for those States (Belgium, Canada, the Netherlands and Portugal) that have simply failed to include in their declarations an exclusion clause protecting their inter-ests, while Spain and the United Kingdom are, because of their exclusion clauses, released from the Court's jurisdiction in the present cases (which in fact cover exactly the same subject). I accordingly consider, in the light my finding in paragraph 9 above as to Yugoslavia's lack of good faith, that the Applications instituting proceedings against these four States also (namely, Belgium, Canada, the Netherlands and Portugal) should likewise be found inadmissible.

IV. Lack of the Court's Jurisdiction under the 1930 Convention between Belgium and Yugoslavia and the 1931 Treaty between the Netherlands and Yugoslavia

17. As late as the second round of oral hearings, which took place on 12 May 1999, the Federal Republic of Yugoslavia supplemented its Applications against Belgium and the Netherlands by invoking as additional grounds of jurisdiction of the Court, respectively. Article 4 of the 1930 Convention of Conciliation, Judicial Settlement and Arbitration [p 941] between Yugoslavia and Belgium, and Article 4 of the 1931 Treaty of Judicial Settlement, Arbitration and Conciliation between Yugoslavia and the Netherlands. Irrespective of the question of whether these instru-ments still remain valid in the present-day relations between the Federal Republic of Yugoslavia and the two respondent States, and whether the Federal Republic of Yugoslavia is entitled to invoke them as a basis of jurisdiction at such a late stage, I have to say that in my view the reliance on these instruments by the Federal Republic of Yugoslavia is totally unfounded.

18. These two instruments were among a number of treaties of a similar character concluded between a great number of States in the period after the establishment of the League of Nations; they were intended to bring together the various means of peaceful settlement of international disputes, namely judicial settlement, arbitration, conciliation, and other methods, into a systematized scheme of precedence among these various procedures. However, these treaties did not impose any new obligations on the States which became parties to them. Hence, the 1930 and 1931 instruments imposed no new obligations on the Contracting Parties in connection with the judicial settlement of disputes, over and above resort to the Permanent Court of International Justice provided for in its Statute, to which the Contracting Parties of the 1930 and 1931 instruments, respectively, were already signatories. (Belgium, the Netherlands, and Yugoslavia had, in their respective declarations, already accepted the compulsory jurisdiction of that Court.)

The provisions of Article 4 of these two instruments have never been interpreted as granting compulsory jurisdiction to the then existing Permanent Court of International Justice in addition to what had already been provided for in its Statute. It is also to be noted that, in both of these instruments, resort to any of the prescribed means of settlement of disputes could be had only after a dispute had failed to be settled through the normal diplomatic channels (cf. Article 1 of the respective instruments).

V. Lack of the Court's Jurisdiction under the Genocide Convention

(I) Preliminary Observations

19. The Court's Statute provides in Article 36, paragraph 1, that "[t]he jurisdiction of the Court comprises ... all matters specially provided for . . . in treaties and conventions in force". The 1948 Genocide Convention is one of these "treaties and conventions in force" and its Article IX provides that

"[disputes between the Contracting Parties relating to the interpre-[p 942]tation, application or fulfilment of the present Convention . . . shall be submitted to the International Court of Justice at the request of any of the parties to the dispute".

In all ten of its Applications, the Federal Republic of Yugoslavia, referring to the alleged breach of the obligation contained in the Genocide Convention, invoked Article IX of that Convention as a legal ground for jurisdiction of the Court.

I will not deal here with the question of whether the Federal Republic of Yugoslavia is now a party to the Genocide Convention and whether a State which is not a State party to the Statute is entitled to locus standi by relying on Article 36, paragraph 1, as quoted at the beginning of this paragraph.

I note that Portugal became a party to the Genocide Convention with effect from 10 May 1999. I also note that Spain and the United States have properly made their respective reservations in respect of Article IX of the Genocide Convention. Thus the applications of the Federal Republic of Yugoslavia invoking that Convention should — from the outset — be dismissed in the cases of Portugal, Spain and the United States.

(2) No Disputes relating to the Genocide Convention Exist between the Parties

20. The Federal Republic of Yugoslavia, in spite of enumerating various claims, did not establish any violation of the Genocide Convention for which any one of the ten respondent States could be held responsible as a party to that Convention and indicated no element of genocide as defined in Article II of the Genocide Convention in the bombing or military attacks in Yugoslavia by the NATO armed forces. The question in general as to whether or not the bombing or the military attack in the territory of Yugoslavia by the NATO armed forces does in fact constitute a violation of international law may well be an issue but is irrelevant when dealing with the Genocide Convention.

21. Even if acts of genocide for which the respondent States may be deemed to be responsible under the Genocide Convention had taken place in Yugoslavia, that would not mean that there were disputes between the applicant State and the respondent States concerning the interpretation, application or fulfilment of the Convention. The Applicant did not indicate the existence of such a dispute which might be submitted obligatorily to the Court by application of the Genocide Convention.

I have previously stated my interpretation of the meaning of the words "a dispute concerning the interpretation, application or fulfilment of the [p 943] Convention" in the declaration I appended to the Court's Judgment in the Genocide case and I repeat it here :

"If any dispute were to be unilaterally submitted to the Court by one of the Contracting Parties to a treaty pursuant to the compro-missory clause of that treaty, this would mean in essence that the dispute had arisen because of (i) the alleged failure of another Con-tracting Party to fulfil the obligations imposed by that treaty — a failure for which it is responsible — and (ii) the infringement of the rights bestowed upon the former State by that treaty due to that failure. The failure of the other State is itself a violation of the treaty but such a violation alone cannot be interpreted as constituting a dispute between the applicant State and the respondent State relating to that treaty unless it can be shown to have infringed such rights of the former State as are protected thereby." (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), pp. 625-626.)

(3) General Character of the Genocide Convention

22. The Genocide Convention cannot be regarded as an orthodox type of international treaty, as orthodox treaties provide for a right on the part of one State and a corresponding obligation on the part of another State. I once described the unique character of the Genocide Convention. It may be pertinent to quote my previous writing in this respect :

"4. The Genocide Convention is unique in having been adopted by the General Assembly in 1948 at a time when — due to the success of the Nuremburg Trials — the idea prevailed that an international criminal tribunal should be established for the punishment of criminal acts directed against human rights, including genocide; it is essentially directed not to the rights and obligations of States but to the protection of rights of individuals and groups of persons which have become recognized as universal.

To be sure, the Contracting Parties to the Convention defined genocide as 'a crime under international law' (Art. I). The Convention binds the Contracting Parties to punish persons responsible for those acts, whoever they may be, and is thus directed to the punishment of persons committing genocide and genocidal acts (Art. IV). The Contracting Parties undertake 'to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention' (Art. V).

As persons committing genocide or genocidal acts may possibly be 'constitutionally responsible rulers [or] public officials' (Art. IV), [p 944]the Convention contains a specific provision which allows '[a]ny Contracting Party [to] call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of [those acts]' (Art. VIII) and contemplates the establishment of an international penal tribunal (Art. VI).

Genocide is defined as 'a crime under international law which [the Contracting Parties] undertake to prevent and punish' (Art. I). Even if this general clause (which was subjected to criticism at the Sixth Committee in 1948 when it was felt by some delegates that it should have been placed in the preamble, but not in the main text) is to be interpreted as meaning specifically that the Contracting Parties are obliged 'to prevent and to punish' genocide and genocidal acts, these legal obligations are borne in a general manner erga omnes by the Contracting Parties in their relations with all the other Contracting Parties to the Convention — or, even, with the international community as a whole — but are not obligations in relation to any specific and particular signatory Contracting Party.

The failure of any Contracting Party 'to prevent and to punish' such a crime may only be rectified and remedied through (i) resort to a competent organ of the United Nations (Art. VIII) or (ii) resort to an international penal tribunal (Art. VI), but not by invoking the responsibility of States in inter-State relations before the International Court of Justice. This constitutes a unique character of the Convention which was produced in the post-war period in parallel with the emergence of the concept of the protection of human rights and humanity.

5. In this regard, some explanation of the dispute settlement provision of the Convention (Art. IX) may be pertinent. It reads as follows:

'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'

and is unique as compared with the compromissory clauses found in other multilateral treaties which provide for submission to the International Court of Justice of such disputes between the Contracting Parties as relate to the interpretation or application of the treaties in question.

The construction of Article IX of the Genocide Convention is very uncertain as it incorporates specific references to '[disputes . . . relating to . . . fulfilment of the Convention' and to 'disputes relating to the responsibility of a State for genocide or [genocidal acts]' — ref-[p 945]erences which can hardly be understood in any meaningful sense as a compromissory clause.

The original draft of the Genocide Convention was drawn up by an Ad Hoc Committee on Genocide in the ECOSOC in April-May 1948, and contained an orthodox type of compromissory clause (Official Records of the Economic and Social Council, Third Year, Seventh Session, Supplement No. 6), which read:

'Disputes between the High Contracting Parties relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice, provided that no dispute shall be submitted to the International Court of Justice involving an issue which has been referred to and is pending before or has been passed upon by a competent international criminal tribunal.' (Emphasis added.)

When this draft was taken up by the Sixth Committee of the General Assembly in its Third Session in October 1948, the addition of the two aforementioned references was proposed (Official Records of the General Assembly, Third Session, Sixth Committee, Annexes, p. 28: A/C6/258) without, in my view, the drafters having a clear picture of the new type of convention to be adopted. While some delegates understood that 'fulfilment' would not be different from 'application', a proposal to delete 'fulfilment' from the additions was rejected by 27 votes to 10, with 8 abstentions. However, another deletion of the words 'including [disputes] relating to the responsibility of a State for genocide or [genocidal acts]' was also rejected but only by 19 votes to 17, with 9 abstentions (Official Records of the General Assembly, Third Session, Sixth Committee, SR. 104, p. 447). The travaux préparatoires of the Convention seem to confirm that there was some measure of confusion among the drafters, reflecting in particular the unique nature of their task in the prevailing spirit of the times.

How can one then interpret this reference to the 'responsibility of a State' ? As far as I know such a reference has never been employed in any other treaty thereafter. It seems to be quite natural to assume that that reference would not have had any meaningful sense or otherwise would not have added anything to the clause providing for the submission to the Court of disputes relating to the interpretation or application of the Convention, because, in general, any inter-State dispute covered by a treaty per se always relates to the responsibility of a State and the singling-out of a reference to the responsibility of a State does not have any sense with regard to a compromissory clause." (Application of the Convention on the Prevention and [p 946] Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), declaration of Judge Oda, pp. 626-628.)

(4) Concluding Observations

23. In order to seise the Court of the present cases, excepting those concerning Portugal, Spain and the United States as referred to in paragraph 19 of this opinion, the Federal Republic of Yugoslavia would certainly have had to show that, applying the Genocide Convention to the situation in the territory of Federal Republic of Yugoslavia, the respondent States could indeed have been responsible for the failure of the fulfilment of the Convention in relation to the Federal Republic of Yugoslavia. But, more particularly, the Federal Republic of Yugoslavia would have to show that the respondent States have breached the rights of the Federal Republic of Yugoslavia as a Contracting Party (which by definition is a State) entitled to protection under that Convention. This, however, has not been established in the Applications and in fact the Genocide Convention is not intended to protect the rights of the Federal Republic of Yugoslavia as a State.

Even if, as alleged, the respondent States are responsible for certain results of the bombing or armed attacks by NATO armed forces in the territory of the Federal Republic of Yugoslavia, this fact alone does not mean that there is a "dispute relating to the interpretation, application or fulfilment of the Convention", as the respondent States did not violate the rights conferred upon the Federal Republic of Yugoslavia by the Convention. What is protected by the Convention is not the particular rights of any individual State (the Federal Republic of Yugoslavia in this case) but the status of human beings with human rights and the universal interest of the individual in general.

What the Federal Republic of Yugoslavia did in its Applications was to point to certain facts allegedly tantamount to genocide or genocidal acts and to submit claims alleged to have arisen out of these facts. This cannot be taken to indicate the existence of an inter-State dispute relating to the responsibility of a State which could have been made a basis for the Court's jurisdiction.

I accordingly conclude that the Applications citing the Genocide Convention as a basis of the Court's jurisdiction should be rejected.

VI. In the Present Circumstances the Requests for the Indication of Provisional Measures are Inadmissible

24. Having made observations on the Court's jurisdiction, I would like to make some comments on the institution of provisional measures. [p 947]

Provisional measures which ought to be taken to preserve the respective rights of either party may be indicated by the Court "if it considers that the circumstances so require" (Statute, Art. 41, emphasis added). It thus falls within the discretion of the Court to grant provisional measures upon the request of the applicant State.

The items concerning the subject-matter of the dispute, the claim and the legal grounds on which the claim is based, are virtually identical throughout the Applications filed by the Federal Republic of Yugoslavia against the ten respondent States. If provisional measures were to be granted, but only in relation to certain of the ten respondent States, for the reason that there existed a prima facie basis of jurisdiction, while in the case of other respondent States the requests were dismissed totally because of the lack of the Court's jurisdiction to entertain the Applications, this would lead to an unreasonable result. For this reason alone, the requests for the indication of provisional measures by the applicant State are inadmissible throughout the ten cases.

VII. Removal of the Cases from the General List of the Court Due to the Lack of Jurisdiction

25. The Court has reached its decision to dismiss the requests for the indication of provisional measures in all ten cases on the sole ground that it lacks a prima facie basis of jurisdiction in these cases. If, at the provisional measures stage, the Court finds that it has prima facie jurisdiction, then it remains free, irrespective of whether or not it grants provisional measures, to proceed to the next phase.

26. In the past the Court, even after having affirmed that there could exist a prima facie basis of jurisdiction, still dismissed the requests for provisional measures in some cases for various reasons. In the Interhandel case, the Passage through the Great Belt case and the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, the Court considered that the circumstances of these cases were not such as to require the exercise of its power to indicate provisional measures. In the Aegean Sea Continental Shelf case, the Court did not find such a risk of irreparable prejudice to rights in issue before it as might require the exercise of its power to indicate provisional measures. In the 1990 case concerning the Arbitral Award of 31 July 1989, the Court dismissed the request of the Republic of Guinea-Bissau on the ground that the alleged rights sought to be made the subject of provisional measures were not the subject of the proceedings before the Court on the merits of the case.

Where the Court finds that there is a prima facie basis of jurisdiction, this does not, of course, necessarily lead it to determine that it eventually has jurisdiction in the case. In the Anglo-Iranian Oil Co. case and the [p 948] Interhandel case, the Court, after granting provisional measures, ulti-mately found that it had no jurisdiction to be seised of these cases.

27. In its past jurisprudence the Court has always found, as in those cases mentioned above and in spite of its ultimately negative response to the request for provisional measures, that there existed a prima facie basis of jurisdiction. There has been no previous case in which the Court did not recognize even a prima facie basis of jurisdiction, and the present cases concerning Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal and the United Kingdom are the first in the Court's jurisprudence in which the Court has dismissed a request for the indication of provisional measures due to the lack of prima facie jurisdiction.
The Court's findings at this stage of the present cases that there is not even a prima facie basis of jurisdiction in all eight of the cases mentioned above should be interpreted as a ruling that it has no jurisdiction whatsoever to entertain the Applications, without leaving any room to retain these cases and to deal with the issue of jurisdiction in the future.

28. In its Orders in the cases of Spain and the United States, the Court finds that the cases against them should be removed from the General List, as the Court manifestly lacks jurisdiction to entertain these two Applications. The Court concludes, however, that it should remain seised of the other eight cases on the ground that its finding that it lacks jurisdiction prima facie to entertain the respective Applications instituting proceedings against Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal and the United Kingdom in no way prejudges the question of jurisdiction in those eight cases.

It is my firm belief that, for all the reasons given above concerning the Court's lack of jurisdiction under (i) Article 36, paragraph 2, of the Statute, (ii) the provisions of the instruments of 1930 and 1931 between Yugoslavia and Belgium and the Netherlands, respectively, and (iii) the provisions of the Genocide Convention, and due to my interpretation of the Court's finding concerning the lack of prima facie basis of jurisdiction in the eight cases, as stated in the last sentence of paragraph 27 of this opinion, the Applications in not only the two cases but in all ten cases should be removed from the General List.

It would be contrary to judicial propriety to make a distinction between two groups of States, in what is essentially one case dealing with the same subject throughout, solely because of the difference in attitudes taken by the States towards the relevant documents which give the Court jurisdiction.

29. In conclusion I would like to express my sincere hope that the present situation in the territory of Yugoslavia, in the settlement of which the International Court of Justice as the principal judicial organ of the [p 949] United Nations has no role to play, will be resolved peacefully and in a way that satisfies all humanitarian aspects raised by this case.

(Signed) Shigeru Oda. [p 950]

 


SEPARATE OPINION OF JUDGE PARRA-ARANGUREN

1. Notwithstanding my vote for the operative part of the Order, with the exception of paragraph 2, I consider it necessary to make the following observations.

2. Preliminary objections are regulated by Subsection 2 of Section D within Part III of the Rules of Court. Article 79, paragraph 1, provides as follows:

"Any objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits, shall be made in writing within the time-limit fixed for the delivery of the Counter-Memorial."

3. Paragraph 7 of the same Article 79 adds:

"After hearing the parties, the Court shall give its decision in the form of a judgment, by which it shall either uphold the objection, reject it, or declare that the objection does not possess in the circumstances of the case, an exclusively preliminary character. If the Court rejects the objection or declares that it does not possess an exclusively preliminary character, it shall fix time-limits for the further proceedings."

4. The Court has no discretionary powers to depart from the Rules established by Article 79. The present proceedings have not yet reached the stage of preliminary objections. Therefore, when deciding upon a request for provisional measures, in my opinion the Court can neither make its final determination on jurisdiction nor order the removal of the case from the Court's List.

(Signed) Gonzalo Parra-Aranguren. [p 951]



DISSENTING OPINION OF JUDGE KRECA

Table of contents

 

 

Paragraphs

I. Composition of the Court in This Particular Case

1-4

 

 

II. Humanitarian Concern in This Particular Case

5-7

 

 

III. Absolute Nullity of the  United States Reservation to Article IX of the Genocide Convention

8-10

 

 

IV. Jurisdiction of the Court Ratione Materiae

11-13

 

 

V. Other Relevant Issues

14-17

[p 952]

I. Composition of the Court in This Particular Case

1. In the context of the conceptual difference between the international magistrature and the internal judicial system within a State, the institution of judge ad hoc has two basic functions:

"(a) to equalize the situation when the Bench already includes a Member of the Court having the nationality of one of the parties; and (b) to create a nominal equality between two litigating States when there is no Member of the Court having the nationality of either party" (S. Rosenne, The Law and Practice of the International Court, 1920-1996, Vol. Ill, pp. 1124-1125).

In this particular case room is open for posing the question as to whether either of these two basic functions of the institution of judge ad hoc has been fulfilled at all.

It is possible to draw the line between two things.

The first is associated with equalization of the Parties in the part concerning the relations between the Applicant and the respondent States which have a national judge on the Bench. In concreto, of special interest is the specific position of the respondent States. They appear in a dual capacity in these proceedings:

primo, they appear individually in the proceedings considering that each one of them is in dispute with the Federal Republic of Yugoslavia: and,

secondo, they are at the same time member States of NATO under whose institutional umbrella they have undertaken the armed attack on the Federal Republic of Yugoslavia. Within the framework of NATO, these respondent States are acting in corpore, as integral parts of an organizational whole. The corpus of wills of NATO member States, when the undertaking of military operations is in question, is constituted into a collective will which is, formally, the will of NATO.

2. The question may be raised whether the respondent States can qualify as parties in the same interest.

In its Order of 20 July 1931 in the case concerning the Customs Regime between Germany and Austria, the Permanent Court of International Justice established that:

"all governments which, in the proceedings before the Court, come to the same conclusion, must be held to be in the same interest for the purposes of the present case" (P.C.I.J., Series AIB, No. 41, p. 88).

The question of qualification of the "same interest", in the practice of the Court, has almost uniformly been based on a formal criterion, the criterion of "the same conclusion" to which the parties have come in the proceedings before the Court. [p 953]
In the present case, the question of "the same conclusion" as the relevant criterion for the existence of "the same interest" of the respondent States is, in my opinion, unquestionable. The same conclusion was, in a way, inevitable in the present case in view of the identical Application which the Federal Republic of Yugoslavia has submitted against ten NATO member States, and was formally consecrated by the outcome of the proceedings before the Court held on 10, 11 and 12 May 1999, in which all the respondent States came to the identical conclusion resting on the foundation of practically identical argumentation which differed only in the fashion and style of presentation.

Hence, the inevitable conclusion follows, it appears to me, that all the respondent States are in concreto parties in the same interest.

3. What are the implications of this fact for the composition of the Court in the present case? Article 31, paragraph 2, of the Statute says: "If the Court includes upon the Bench a judge of the nationality of one of the parties, any other party may choose a person to sit as judge."

The Statute, accordingly, refers to the right of "any other party", namely, a party other than the party which has a judge of its nationality, in the singular. But, it would be erroneous to draw the conclusion from the above that "any other party", other than the party which has a judge of its nationality, cannot, under certain circumstances, choose several judges ad hoc. Such an interpretation would clearly be in sharp contradiction with ratio legis of the institution of judge ad hoc, which, in this particular case, consists of the function "to equalize the situation when the Bench already includes a Member of the Court having the nationality of one of the parties" (S. Rosenne, The Law and Practice of the International Court, 1920-1996, Vol. Ill, pp. 1124-1125). The singular used in Article 31, paragraph 2, of the Statute with reference to the institution of judges ad hoc is, consequently, but individualization of the general, inherent right to equalization in the composition of the Bench in the relations between litigating parties, one of which has a judge of its nationality on the Bench, while the other has not. The practical meaning of this principle applied in casum would imply the right of the Applicant to choose as many judges ad hoc to sit on the Bench as is necessary to equalize the position of the Applicant and that of those respondent States which have judges of their nationality on the Bench and which share the same interest. In concreto, the inherent right to equalization in the composition of the Bench, as an expression of fundamental rule of equality of parties, means that the Federal Republic of Yugoslavia should have the right to choose five judges ad hoc, since even five out of ten respondent States (the United States of America, the United Kingdom, France, Germany and the Netherlands) have their national judges sitting on the Bench.

Regarding the notion of equalization which concerns the relation between the party entitled to choose its judge ad hoc and the parties which have their national judges on the Bench, the fact is that the Federal Republic of Yugoslavia, as can be seen from the Order, did not raise any [p 954]
objections to the circumstance that as many as five respondent States have judges of their nationality on the Bench. However, this circumstance surely cannot be looked upon as something making the question irrelevant, or, even as the tacit consent of the Federal Republic of Yugo-slavia to such an outright departure from the letter and spirit of Article 31, paragraph 2, of the Statute.

The Court has, namely, the obligation to take account ex officio of the question of such a fundamental importance, which directly derives from, and vice versa, may directly and substantially affect, the equality of the parties. The Court is the guardian of legality for the parties to the case, for which preswnptio juris el de jure alone is valid — to know the law (jura novit curia). As pointed out by Judges Bedjaoui, Guillaume and Ranjeva in their joint declaration in the Lockerbie case: "that is for the Court — not the parties — to take the necessary decision" (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), I.C.J. Reports 1988, p. 36, para. 11).

A contrario, the Court would risk, in a matter which is ratio legis proper of the Court's existence, bringing itself into the position of a passive observer, who only takes cognizance of the arguments of the parties and, then, proceeds to the passing of a decision.

4. The other function is associated with equalization in the part which is concerned with the relations between the Applicant and those respondent States which have no national judges on the Bench.

The respondent States having no judge of their nationality on the Bench have chosen, in the usual procedure, their judges ad hoc (Belgium, Canada, Italy and Spain). Only Portugal has not designated its judge ad hoc. The Applicant successively raised objections to the appointment of the respondent States'judges ad hoc invoking Article 31, paragraph 5, of the Statute of the Court. The responses of the Court with respect to this question invariably contained the standard phrase "that the Court . . . found that the choice of a judge ad hoc by the Respondent is justified in the present phase of the case".

Needless to say, the above formulation is laconic and does not offer sufficient ground for the analysis of the Court's legal reasoning. The only element which is subject to the possibility of teleological interpretation is the qualification that the choice of a judge ad hoc is "justified in the present phase of the case". A contrario, it is, consequently, possible that such an appointment of a judge ad hoc would "not be justified" in some other phases of the case. The qualification referred to above could be interpreted as the Court's reserve with respect to the choice of judges ad hoc by the respondent States, a reserve which could be justifiable on account of the impossibility for the Court to perceive the nature of their interest — whether it is the "same" or "separate" — before the parties set out their positions on the case.

The meanings of equalization as a ratio legis institution of judges ad [p 955] hoc, in the case concerning the Applicant and respondent States which are parties in the same interest, and which do not have a judge ad hoc of their nationality on the Bench, have been dealt with in the practice of the Court, in a clear and unambiguous manner.

In the South West Africa case (1961) it was established that, if neither of the parties in the same interest has a judge of its nationality among the Members of the Court, those parties, acting in concert, will be entitled to appoint a single judge ad hoc (South West Africa, I.C.J. Reports 1961, p. 3).
If, on the other hand, among the Members of the Court there is a judge having the nationality of even one of those parties, then no judge ad hoc will be appointed (Territorial Jurisdiction of the International Commission of the River Oder, P.C.I.J., Series C, No. 17-11, p. 8; Customs Regime between Germany and Austria, 1931, P.C.I.J., Series AIB, No. 41, p. 88).

This perfectly coherent jurisprudence of the Court applied to this particular case means that none of the respondent States were entitled to appoint a judge ad hoc.

Consequently, it may be said that in the present case neither of the two basic functions of the institution of judge ad hoc has been applied in the composition of the Court in a satisfactory way. In my opinion, it is a question of the utmost specific weight in view of the fact that, obviously, its meaning is not restricted to the procedure, but that it may have a far-reaching concrete meaning.

II. Humanitarian Concern in This Particular Case

5. Humanitarian concern, as a basis for the indication of provisional measures, has assumed primary importance in the more recent practice of the Court.

Humanitarian concern has been applied on two parallel tracks in the Court's practice:

(a) In respect of the individual

In this regard the cases concerning LaGrand (Germany v. United States of America) and the Vienna Convention on Consular Relations (Paraguay v. United Slates of America) are characteristic.

In both cases the Court evinced the highest degree of sensibility for the humanitarian aspect of the matter, which probably found its full expression in the part of the Application submitted by Germany on 2 March 1999:

"The importance and sanctity of an individual human life are well established in international law. As recognized by Article 6 of the International Covenant on Civil and Political Rights, every human [p 956] being has the inherent right to life and this right shall be protected by law." (LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, l.C.J. Reports 1999, p. 12, para. 8).

The following day, the Court already unanimously indicated provisional measures because it found that in question was "a matter of the greatest urgency" (ibid., p. 15, para. 26), which makes it incumbent upon the Court to activate the mechanism of provisional measures in accordance with Article 41 of the Statute of the Court and Article 75. paragraph 1, of the Rules of Court in order: "to ensure that Walter LaGrand is not executed pending the final decision in these proceedings" (ibid., p. 16, para. 29).

Almost identical provisional measures were indicated by the Court in the dispute between Paraguay and the United States of America which had arisen on the basis of the Application submitted by Paraguay on 3 April 1998. On the same day, Paraguay also submitted an "urgent request for the indication of provisional measures in order to protect its rights" (Vienna Convention on Consular Relations (Paraguay v. United States of America), Order of 9 April 1998, I.C.J. Reports 1998, p. 251, para. 6). As early as 9 April 1998 the Court unanimously indicated provisional measures so as to: "ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings" (ibid., p. 258, para. 41).

It is evident that humanitarian concern represented an aspect which brought about unanimity in the Court's deliberations. This is clearly shown not only by the letter and spirit of both Orders in the above-entioned cases, but also by the respective declarations and the separate opinion appended to those Orders. In the process, humanitarian considerations seem to have been sufficiently forceful to put aside obstacles standing in the way of the indication of provisional measures. In this respect, the reasoning of the Court's senior judge, Judge Oda, and that of its President, Judge Schwebel, are indicative.

In paragraph 7 of his declaration appended to the Order of 3 March 1999 in the case concerning LaGrand (Germany v. United States of America), Judge Oda convincingly put forward a series of reasons of a conceptual nature which explained why he "formed the view that, given the fundamental nature of provisional measures, those measures should not have been indicated upon Germany's request". But, Judge Oda goes on to "reiterate and emphasize" that he "voted in favour of the Order solely for humanitarian reasons" (I.C.J. Reports 1999, p. 20).

President Schwebel, in his separate opinion, has not explicitly stated humanitarian considerations as the reason that guided him in voting for the Order: however, it is reasonable to assume that those were the only considerations which prevailed in this particular case in view of his "profound reservations about the procedures followed both by the Applicant and the Court" (LaGrand (Germany v. United States of [p 957] America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999, p. 22).

As far as the Applicant is concerned:

"Germany could have brought its Application years ago, months ago, weeks ago or days ago. Had it done so, the Court could have proceeded as it has proceeded since 1922 and held hearings on the request for provisional measures. But Germany waited until the eve of execution and then brought its Application and request for provisional measures, at the same time arguing that no time remained to hear the United States and that the Court should act proprio motu." (Ibid.)

The Court, for its part, indicated provisional measures, as President Schwebel put it, "on the basis only of Germany's Application".

(b) In respect of a group of individuals or the population as a constitutive element of the State

The protection of the citizens emerged as an issue in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) :

"In its submission, Nicaragua emphasized the death and harm that the alleged acts had caused to Nicaraguans and asked the Court to support, by provisional measures, 'the rights of Nicaraguan citizens to life, liberty and security'." (R. Higgins, "Interim Measures for the Protection of Human Rights", in Politics, Values and Functions, International Law in the 21st Century, 1997, Charney, Anton, O'Connell, eds., p. 96).

In the Frontier Dispute (Burkina FasolRepublic of Mali) case, the Court found the source for provisional measures in:

"incidents . . . which not merely are likely to extend or aggravate the dispute but comprise a resort to force which is irreconcilable with the principle of the peaceful settlement of international disputes" (Frontier Dispute, Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, p. 9, para. 19).

Humanitarian concern in this particular case was motivated by the risk of irreparable damage:

"the facts that have given rise to the requests of both Parties for the indication of provisional measures expose the persons and property in the disputed area, as well as the interests of both States within that area, to serious risk of irreparable damage" (ibid., p. 10, para. 21). [p 958]

It can be said that in the cases referred to above, in particular those in which individuals were directly affected, the Court formed a high standard of humanitarian concern in the proceedings for the indication of interim measures, a standard which commanded sufficient inherent strength to brush aside also some relevant, both procedural and material, rules governing the institution of provisional measures. Thus, humanitarian considerations, independently from the norms of international law regulating human rights and liberties, have, in a way, gained autonomous legal significance; they have transcended the moral and philanthropic sphere, and entered the sphere of law.

6. In the case at hand, it seems that "humanitarian concern" has lost the acquired autonomous legal position. This fact needs to be stressed in view of the special circumstances of this case.
Unlike the cases referred to previously, "humanitarian concern" has as its object the fate of an entire nation, in the literal sense. Such a conclusion may be inferred from at least two elements:

— primo, the Federal Republic of Yugoslavia and its national and ethnic groups have been subjected for more than two months now to continued attacks of a very strong, highly organized air armada of the most powerful States of the world. The aim of the attack is horrifying, judging by the words of the Commander-in-Chief, General Wesley Clark, and he ought to be believed:

"We're going to systematically and progressively attack, disrupt, degrade, devastate, and ultimately, unless President Milosevic complies with the demands of the international community, we're going to completely destroy his forces and their facilities and support." (BBC News, http://news.bbc.eo.uk/english/static.NATOgallery/air default.stm/14 May 1999.)

"Support" is interpreted, in broad terms, extensively; to the point which raises the question of the true object of the air attacks. In an article entitled "Belgrade People Must Suffer" Michael Gordon quotes the words of General Short that he "hopes the distress of the public will, must undermine support for the authorities in Belgrade" {International Herald Tribune, 16 May 1999, p. 6) and he continued:

"I think no power to your refrigerator, no gas to your stove, you can't get to work because bridge is down — the bridge on which you held your rock concerts and you all stood with targets on your heads. That needs to disappear at three o'clock in the morning." (Ibid.)

That these are not empty words is testified to by destroyed bridges, power [p 959] plants without which there is no electricity, water supply and production of foodstuffs essential for life; destroyed roads and residential blocks and family homes; hospitals without electricity and water and, above all, human beings who are exposed to bombing raids and who, as is rightly stressed in the Application in the LaGrand (Germany v. United States of America) case, have the "inherent right to life" (International Covenant on Civil and Political Rights, Art. 6), whose importance and sanctity are well established in international law. In the inferno of violence, they are but "collateral damage".

— secundo, the arsenal used in the attacks on Yugoslavia contains also weapons whose effects have no limitations either in space or in time. In the oral proceedings before the Court, the Agent of the United States explicitly stressed that depleted uranium is in standard use of the United States Army (CR 99/24, p. 21).

The assessment of the effects of depleted uranium should be left to science. The report by Marvin Resnikoff of Radioactive Management Associates on NMI elaborated upon these effects:

"Once inhaled, fine uranium particles can lodge in the lung alveolar and reside there for the remainder of one's life. The dose due to uranium inhalation is cumulative. A percentage of inhaled particulates may be coughed up, then swallowed and ingested. Smoking is an additional factor that needs to be taken into account. Since smoking destroys the cilia, particles caught in a smoker's bronchial passages cannot be expelled. Gofman estimates that smoking increases the radiation risk by a factor of 10. Uranium emits an alpha particle, similar to a helium nucleus, with two electrons removed. Though this type of radiation is not very penetrating, it causes tremendous tissue damage when internalized. When inhaled, uranium increases the probability of lung cancer. When ingested, uranium concentrates in the bone. Within the bone, it increases the probability of bone cancer, or, in the bone marrow, leukemia. Uranium also resides in soft tissue, including the gonads, increasing the probability of genetic health effects, including birth defects and spontaneous abortions. The relationship between uranium ingested and the resultant radiation doses to the bone marrow and specific organs . . . are listed in numerous references.

The health effects are also age-specific. For the same dose, children have a greater likelihood than adults of developing cancer." (Uranium Battlefields Home & Abroad: Depleted Uranium Use by the U.S. Department of Defense, Rural Alliance for Military Accountability et a/., March 1993, pp. 47-48.)

A scientific analysis of the concrete effects of armed operations against [p 960] Yugoslavia has been presented by Umweltbundesamt (UBA). The essentials of the expertise are as followsFN1:

----------------------------------------------------------------------------------------------------------
FN1"Je länger der Krieg in Jugoslawien dauert, desto grösser wird die Gefahr von langfristigen Schädigungen der Umwelt. Diese drohen sich über die Landesgrenzen hinaus auszubreiten und können möglicherweise nicht mehr vollständig beseitigt werden. Zu dieser Einschätzung kommt das Umweltbundesamt (UBA) in einem internen Papier, das sich mit den ökologischen Auswirkungen des Krieges in Jugoslawien befasst und für die Vorbereitung des Treffens europäischer Umweltminister Anfang Mai in Weimar erstellt wurde. Katastrophen 'wie Seveso und Sandoz' sind nach Ansicht des Amtes 'ein durchaus wahrscheinliches Schadensszenario'.
………………………………………………………………………………………………
Umweltgifte, die nach Zerstörungen von Industrieanlagen austreten, könnten sich weiter ausbreiten. 'Bei Sicherstellung sofortigen Handelns, das unter Kriegsbedingungen aber unmöglich ist, bleibt die Wirkung dieser Umweltschädigungen lokal begrenzt. Längere Verzögerungen führen zu einem übertritt der Schadstoffe in die Schutzgüter Boden, Grund-und Oberflächenwasser, erhöhen das Gefährdungspotential für den Menschen und den Sanierungsaufwand beträchtlich.'

Diese Folgen müssen nicht auf Jugoslawien beschränkt sein. Schadstoffe aus Grossbränden könnten grenzüberschreitend verteilt werden. Weiter heisst es in dem Papier: 'Die Einleitung der Gefahrstoffe in Oberflächenwasser kann zur weiträumigen Schädigung der Ökosysteme führen. Die Deposition von Gefahrstoffen in Böden kann je nach Eigenschaft der Stoffe und Böden zu langanhaltenden Versuchungen mit weitgehenden Nutzungseinschränkungen führen.'

Die Gefahr einer 'tiefgreifenden Zerstörung wesentlicher Bestandteile von Trink-wasserversorgungssystemen' sei für mittlere und grosse Städte sowie Ballungsgebiete am grössten. Schon geringe Mengen von Substanzen der petrochemischen Industrie könnten 'grosse Grundwasservorräte unbrauchbar machen'.

Wie gefährlich die freigesetzten Stoffe insgesamt sind, lässt sich nach Ansicht der UBA-Experten nur schwer abschätzen, 'weil durch die Zerstörung ganzer Industriekomplexe Mischkontaminationen verschiedenster Schadstoffe gebildet werden', die noch wenig erforscht seien. Noch komplizierter sei die Beurteilung von Umweltschäden durch Brände und Explosionen. 'Hier treten bezogen auf Schadstoffinventar und Ausbreitung weit weniger kalkulierbare, zum Teil grossflächige Umvveltschädi-gungen ein.'

Die Verbrennungsprodukte seien 'zum Teil hoch toxisch und kanzerogen". Je nach klimatischen Bedingungen könne es 'zu einer grossflächigen Verteilung dieser Stoffe" kommen, "die eine vollständige Beseitigung nahezu unmöglich macht' ...
Die Wechselwirkungen der Produkte mit den eingesetzten Waffen dürften 'völlig unbekannt' sein." (TAZ. Die Tageszeitung. Berlin. 20 May 1999.)

------------------------------------------------------------------------------------------------------------

[Translation by the Registry]

"The longer the war in Yugoslavia lasts, the greater the risk of long-term damage to the environment. Such damage threatens to extend beyond national frontiers, and it may no longer be possible fully to make it good. The Federal Environmental Agency [Umwelt-bundesamt (UBA)] comes to this conclusion in an internal paper examining the ecological consequences of the war in Yugoslavia, prepared for the meeting of European Environment Ministers at the beginning of May in Weimar. Catastrophes 'like Seveso and Sandoz' are, in the opinion of the Agency, 'a perfectly probable damage scenario'.[p 961]

Environmental toxins released by the destruction of industrial plant could spread further. 'If immediate action is taken, which is, however, impossible under war conditions, the effect of this environmental damage will remain restricted to local level. Longer delays will result in toxic substances passing into the soil, groundwater and surface water, and substantially increase the potential danger to man, and the cost of cleansing operations.'

These consequences are not necessarily limited to Yugoslavia. Harmful substances deriving from major conflagrations can be diffused beyond frontiers. The paper continues: 'Passage of harmful substances into surface water can lead to extensive damage to ecosystems. The deposition of hazardous substances in the soil can, depending on the nature of those substances and of the soil, result in long-term contamination, imposing far-reaching limitations upon utilization.'

The danger of 'extensive destruction of essential components of drinking-water supply networks' is biggest with regard to middle-sized and large cities and conurbations. Even small amounts of substances from the petrochemical industry can render 'extensive groundwater reserves unusable'.

According to the Federal Environmental Agency experts, the overall risk posed by the substances released is difficult to assess, 'because the destruction of entire industrial complexes results in mixed contamination by a wide variety of harmful substances' — an area in which there has as yet been little research. Even more problematic, in the experts' view, is the assessment of environmental damage caused by fires and explosions. 'Here, in terms of identification of the harmful substances involved and the possibility of their diffusion, environmental damage is far harder to predict, but will on occasion be extensive.'

The substances produced by the fires are described as 'in part highly toxic and carcinogenic'. Depending on climatic conditions, 'widespread diffusion of these substances' could occur, 'which would render full cleansing almost impossible'.

The effects of the interaction of those substances with the weapons employed were said to be 'completely unknown'." (TAZ, Die Tageszehung, Berlin, 20 May 1999.)

Therefore, it is my profound conviction, that the Court is, in concreto, confronted with an uncontestable case of "extreme urgency" and "irreparable harm", which perfectly coincides, and significantly transcends [p 962]the substance of humanitarian standards which the Court has accepted in previous cases.

7. I must admit that I find entirely inexplicable the Court's reluctance to enter into serious consideration of indicating provisional measures in a situation such as this crying out with the need to make an attempt, regardless of possible practical effects, to at least alleviate, if not elimi-nate, an undeniable humanitarian catastrophe. 1 do not have in mind provisional measures in concrete terms as proposed by the Federal Republic of Yugoslavia, but provisional measures in general: be they provisional measures propria motu, different from those proposed by the Federal Republic of Yugoslavia or, simply, an appeal by the President of the Court, as was issued on so many occasions in the past, in less difficult situations, on the basis of the spirit of Article 74, paragraph 4, of the Rules of Court.

One, unwillingly, acquires the impression that for the Court in this particular case the indication of any provisional measures whatever has been terra prohibita. Exempli causa, the Court, in paragraph 18 of the Order, says that it:

"deems it necessary to emphasize that all parties appearing before it must act in conformity with their obligations under the United Nations Charter and other rules of international law including humanitarian law",

or, in paragraph 32 of the Order, that the Parties: "should take care not to aggravate or extend the dispute", and it is obvious that both the above pronouncements of the Court have been designed within the model of general, independent provisional measures.

III. Absolute Nullity of the United States Reservation to Article IX of the Genocide Convention

8. In its Order, the Court accepts the assertion of the Respondent that the Court does not have jurisdiction over the Applicant's claim based on the Genocide Convention due to the fact that the United States entered a clear reservation to Article IX of the Genocide Convention. As the United States reservation requires specific consent before any case regarding genocide can be brought against it and as the United States does not consent to this particular case, relevant jurisdictional nexus in the Court's Order has not been met.

The reservation reads:

"Reservations:

'(1) That with reference to article IX of the Convention, before any dispute to which the United States is a party may be submitted [p 963] to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case.
(2) That nothing in the Convention requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.'

Understandings:

'(1) That the term "intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such" appearing in article II means the specific intent to destroy, in whole or in substantial part, a national, ethnical, racial or religious group as such by the acts specified in article II.

(2) That the term "mental harm" in article II (b) means permanent impairment of mental faculties through drugs, torture or similar techniques.

(3) That the pledge to grant extradition in accordance with a state's laws and treaties in force found in article VII extends only to acts which are criminal under the laws of both the requesting and the requested state and nothing in article VI affects the right of any state to bring to trial before its own tribunals any of its nationals for acts committed outside a state.

(4) That acts in the course of armed conflicts committed without the specific intent required by article II are not sufficient to constitute genocide as defined by this Convention.

(5) That with regard to the reference to an international penal tribunal in article VI of the Convention, the United States declares that it reserves the right to effect its participation in any such tribunal only by a treaty entered into specifically for that purpose with the advice and consent of the Senate.' " {Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 1997, United Nations Publication ST/LEG/SER.E/16, p. 88.)

9. The first reservation of the United States with respect to Article IX of the Convention has been expressed lege artis. Article IX of the Convention is by its nature a procedural provision in regard to which the parties to the Convention act in accordance with the principle of the autonomy of will.

The matter becomes more complicated in respect of "understandings" contained therein. As a matter of law, it should be pointed out that, "understandings" are, ex definitione, a relevant form of expressing a reservation in the sense that a party to a treaty is giving a restrictive interpretation of its provision or of a part. For a reservation in a substantive sense presupposes not only the exclusion of application of a provision or [p 964] of a part of a treaty but also presupposes a restriction in its interpretation or application.

It clearly stems from Article 2, paragraph 1 (d), of the Vienna Convention on the Law of Treaties, reading:
"'reservation' means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effects of certain provisions of the treaty in their application to that State" (United Nations Conference on the Law of Treaties, First and Second Sessions, Official Records, United Nations, 1971, p. 289).

In its Opinion of 28 May 1951, the Court pointed out that:

"The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as 'a crime under international law' involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96 (I) of the General Assembly, December 11th, 1946). The first consequence arising from this conception is that the prin-ciples underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the co-operation required 'in order to liberate mankind from such an odious scourge' (Preamble to the Convention)." (Reservations to the Convention on Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23.)

In its Judgment of 11 July 1996 in the Genocide case, the Court stated "[i]t follows that the rights and obligations enshrined by the Convention are rights and obligations erga omnes" (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 616, para. 31).

It is obvious that the first and second of the "understandings" lodged by the United States are actually reservations incompatible with the object and purpose of the Genocide Convention (Jordan Paust, "Congress and Genocide: They're Not Going to Get Away with It", Michigan Journal of International Law, Vol. 11, 1989-1990, pp. 92-98).
Since:

"At least Arts. II, III and IV of the Genocide Convention, which are agreed to codify customary international law, therefore represent jus cogens. This means that no derogation from these provisions is permissible, so long as the international community of States as a whole does not develop a new rule. Therefore, to the extent that any reservations to the Genocide Convention purport to derogate from [p 965] the scope or nature of any State's obligations in respect of genocide, as set out in the core provisions of the Genocide Convention, those reservations would be void under the jus cogens doctrine." (M. M. Sychold, "Ratification of the Genocide Convention: The Legal Effects in Light of Reservations and Objections", Schweizerische Zeitschrift für internationales und europäisches Recht, 4/1998, p. 551.)

10. The norms of jus cogens are of an overriding character; thus, they make null and void any act, be it unilateral, bilateral or multilateral, which is not in accordance with them. Such a logical conclusion based on the peremptory or absolutely binding nature of jus cogens norms, expressing in the normative sphere the fundamental values of the international community as a whole, have been confirmed in the North Sea Continental Shelf cases. In those cases, the Court was faced with the contention that the "equidistance principle" contained in Article 6 of the 1958 Geneva Convention on the Continental Shelf had become tractu temporis a rule of customary international law. The Court in its Judgments said:

"it is characteristic of purely conventional rules and obligations that, in regard to them, some faculty of making unilateral reservations may, within certain limits, be admitted; — whereas this cannot be so in the case of general or customary law rules and obligations which, by their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favour. Consequently, it is to be expected that when, for whatever reason, rules or obligations of this order are embodied, or are intended to be reflected in certain provisions of a convention, such provisions will figure amongst those in respect of which a right of unilateral reservation is not conferred, or is excluded." (North Sea Continental Shelf Judgment, LC.J. Reports 1969, pp. 38-39, para. 63.)

Leaving aside some conceptual confusion in this passage regarding the relation between rules of general international law and norms constituting corpus juris cogentis, it appears that the Court was quite clear that rules applying to purely conventional rules and obligations cannot be per analogiat applied to norms having the character of jus cogens.

The only possible way of excluding nullity effects in regard to the United States' reservation to Article IX of the Genocide Convention may lie in the interpretation that nullity affects only "understandings" and that it is has no legal consequences for the reservation itself. [p 966]

Such an interpretation would run counter to the fundamental rule of inseparability of the acts, be it unilateral, bilateral or multilateral, conflicting with a norm belonging to corpus juris cogentis. In its commentary to Article 44 (5) of the Vienna Convention on the Law of Treaties, the International Law Commission stated unequivocally:

"rules of jus cogens are of so fundamental a character that, when parties conclude a treaty which conflicts in any of its clauses with an already existing rule of jus cogens, the treaty must be considered totally invalid" (Yearbook of the International Law Commission, 1966, Vol. II, p. 239, para. 8).

As Sir Gerald Fitzmaurice pointed out:

"there are the cases in which overriding rules of ius cogens produce a situation of irreducible obligation and demand that illegal action be ignored and not allowed to affect the obligations of other States" (G. Fitzmaurice, "The Law and Procedure of the International Court of Justice, 1954-1959", 35 British Year Book of International Law, 1955, p. 122).

Accordingly, the overriding character of norms of jus cogens which are the very basis of the international community as a whole makes impossible separability of an act of the United States containing both reservations and "understandings" which are in conflict with the norm having a peremptory nature.

IV. Jurisdiction of the Court Ratione Materiae

11. I am of the opinion that in the matter in hand the Court's position is strongly open to criticism. The Court finds:

"and whereas the United States further contends that there is no 'legally sufficient . . . connection between the charges against the United States contained in the Application and [the] supposed jurisdictional basis under the Genocide Convention'; and whereas the United States further asserts that Yugoslavia has failed to make any credible allegation of violation of the Genocide Convention, by failing to demonstrate the existence of the specific intent required by the Convention to 'destroy, in whole or in part, a national, ethnical, racial or religious group, as such', which intent could not be inferred from the conduct of conventional military operations against another State." (Order, para. 22.)

The intent is, without doubt, the subjective element of the being of the crime of genocide as, indeed, of any other crime. But, this question is not [p 967] and cannot, by its nature, be the object of decision-making in the incidental proceedings of the indication of provisional measures.

In this respect, a reliable proof should be sought in the dispute which, by its salient features, is essentially identical to the dispute under consideration — the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide.

In its Order on the indication of provisional measures of 8 April 1993, in support of the assertion of the Respondent that, inter alia, "it does not support or abet in any way the commission of crimes cited in the Application . . . and that the claims presented in the Application are without foundation" (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. 21, para. 42), the Court stated:

"Whereas the Court, in the context of the present proceedings on a request for provisional measures, has in accordance with Article 41 of the Statute to consider the circumstances drawn to its attention as requiring the indication of provisional measures, but cannot make definitive findings of fact or of imputability, and the right of each Party to dispute the facts alleged against it, to challenge the attribution to it of responsibility for those facts, and to submit arguments in respect of the merits, must remain unaffected by the Court's decision" (ibid., p. 22, para. 44)

and

"Whereas the Court is not called upon, for the purpose of its decision on the present request for the indication of provisional measures, now to establish the existence of breaches of the Genocide Convention" (ibid., para. 46).

The rationale of provisional measures is, consequently, limited to the preservation of the respective rights of the parties pendente lite which are the object of the dispute, rights which may subsequently be adjudged by the Court. As the Court stated in the Land and Maritime Boundary between Cameroon and Nigeria case:

"Whereas the Court, in the context of the proceedings concerning the indication of provisional measures, 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, if appropriate, in respect of the merits, must remain unaffected by the Court's decision" (Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), p. 23, para. 43). [p 968]

12. Fundamental questions arise regarding the position of the Court on this particular matter.

The relationship between the use of armed force and genocide can be looked upon in two ways:

(a) is the use of force per se an act of genocide or not? and,
(b) is the use of force conducive to genocide and, if the answer is in the affirmative, what is it then, in the legal sense?

It is incontrovertible that the use of force per se et definitione does not constitute an act of genocide. It is a matter that needs no particular proving. However, it could not be inferred from this that the use of force is unrelated and cannot have any relationship with the commission of the crime of genocide. Such a conclusion would be contrary to elementary logic.

Article II of the Convention on the Prevention and Punishment of the Crime of Genocide defines the acts of genocide as

"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."

Any of these acts can be committed also by the use of force. The use of force is, consequently, one of the possible means of committing acts of genocide. And, it should be pointed out, one of the most efficient means, due to the immanent characteristics of armed force.
Extensive use of armed force, in particular if it is used against objects and means constituting conditions of normal life, can be conducive to "inflicting on the group conditions of life" bringing about "its physical destruction".

Of course, it can be argued that such acts are in the function of degrading the military capacity of the Federal Republic of Yugoslavia. But such an explanation can hardly be regarded as a serious argument. For, the spiral of such a line of thinking may easily come to a point when, having in mind that military power is after all comprised of people, even mass killing of civilians can be claimed to constitute some sort of a precautionary measure that should prevent the maintenance or, in case of mobilization, the increase of military power of the State.

Of course, to be able to speak about genocide it is necessary that there is an intent, namely, of "deliberately inflicting on the group con-[p 969]ditions of life" bringing about "its physical destruction in whole or in part".

In the incidental proceedings the Court cannot and should not concern itself with the definitive qualification of the intent to impose upon the group conditions in which the survival of the group is threatened. Having in mind the purpose of provisional measures, it can be said that at this stage of the proceedings it is sufficient to establish that, in the conditions of intensive bombing, there is an objective risk of bringing about conditions in which the survival of the group is threatened.

The Court took just such a position in the Order of 8 April 1993 on the indication of provisional measures in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case.

Paragraph 44 of that Order stated:

"Whereas the Court, in the context of the present proceedings on a request for provisional measures, has in accordance with Article 41 of the Statute to consider the circumstances drawn to its attention as requiring the indication of provisional measures, but cannot make definitive findings of fact or of imputability, and the right of each Party to dispute the facts alleged against it, to challenge the attribution to it of responsibility for those facts, and to submit arguments in respect of the merits, must remain unaffected by the Court's decision" (I.C.J. Reports 1993, p. 22).

The question of "intent" is a highly complicated one. Although the intent is a subjective matter, a psychological category, in contemporary criminal legislation it is established also on the basis of objective circumstances. Inferences of intent to commit an act are widely incorporated in legal systems. Exempli causa, permissive inferences as opposed to a mandatory presumption in the jurisprudence of the United States of America may be drawn even in a criminal case.

In any event, there appears to be a clear dispute between the Parties regarding "intent" as the constitutive element of the crime of genocide.

The Applicant asserts that "intent" can be presumed and, on the other hand, the Respondent maintains that "intent", as an element of the crime of genocide, should be clearly established as dolus specialis. Such a confrontation of views of the Parties concerned leads to a dispute related 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.

13. At the same time, one should have in mind that whether "in certain cases, particularly that by the infliction of inhuman conditions of life, the crime may be perpetrated by omission" (Stanislas Plawski, Etude [p 970] des principes fondamentaux du droit international penal, 1972, p. 115. Cited in United Nations doc. E/CN.4/Sub.2/415 of 4 July 1978). Since,

"Experience provides that a state of war or a military operations regime gives authorities a convenient pretext not to provide a population or a group with what they need to subsist — food, medicines, clothing, housing ... It will be argued that this is inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part." (J. Y. Dautricourt, "La prevention du genocide et ses fondements juridiques", Etudes internationales de psvchosociologie criminelle, Nos. 14-15, 1969, pp. 22-23. Cited in United Nations doc. E/CN.4/Sub.2/415 of 4 July 1978, p. 27.)

Of the utmost importance is the fact that, in the incidental proceedings, the Court cannot and should not concern itself with the definitive qualification of the intent to impose upon the group conditions in which the survival of the group is threatened. Having in mind the purpose of pro-visional measures, it can be said that at this stage of the proceedings it is sufficient to establish that, in the conditions of intensive bombing, there is an objective risk of bring about conditions in which the survival of the group is threatened.

V. Other Relevant Issues

14. In paragraph 15 of the Order the Court states:

"Whereas the Court is deeply concerned with the human tragedy, the loss of life, and the enormous suffering in Kosovo which form the background of the present dispute, and with the continuing loss of life and human suffering in all parts of Yugoslavia."

The phrasing of the statement seems to me unacceptable for a number of reasons. First, the formulation introduces dual humanitarian concern. The Court is, it is stated, "deeply concerned", while at the same time the Court states "the loss of life". So, it turns out that in the case of "all parts of Yugoslavia" the Court technically states "the loss of life" as a fact which does not cause "deep concern". Furthermore, the wording of the formulation may also be construed as meaning that Kosovo is not a part of Yugoslavia. Namely, after emphasizing the situation in Kosovo and Metohija, the Court uses the phrase "in all parts of Yugoslavia". Having in mind the factual and legal state of affairs, the appropriate wording would be "in all other parts of Yugoslavia". Also, particular reference to "Kosovo" and "all parts of Yugoslavia", in the present circumstances, has not only no legal, but has no factual basis either. Yugoslavia, as a whole, is the object of attack. Human suffering and loss of life are, un-[p 971]fortunately, a fact, generally applicable to the country as a whole; so, the Court, even if it had at its disposal the accurate data on the number of victims and the scale of suffering of the people of Yugoslavia, it would still have no moral right to discriminate between them. Further, the qualification that "human tragedy and the enormous suffering in Kosovo . . . form the background of the present dispute" not only is political, by its nature, but has, or may have, an overtone of justification of the armed attack on Yugoslavia. Suffice it to recall the fact that the respondent State refers to its armed action as humanitarian intervention.

It is up to the Court to establish, at a later stage of the proceedings, the real legal state of affairs, namely, the relevant facts. At the present stage, the question of the underlying reasons for the armed attack on the Federal Republic of Yugoslavia is the object of political allegations. While the Respondent argues that what is involved is a humanitarian intervention provoked by the "human tragedy and the enormous suffering", the Applicant finds that sedes materiae the underlying reasons are to be sought elsewhere — in the support to the terrorist organization in Kosovo and in the political aim of secession of Kosovo and Metohija from Yugoslavia.

Consequently, we are dealing here with opposed political qualifications in which the Court should not, and, in my view, must not, enter except in the regular court proceedings.

15. The formulation of paragraph 33 of the Order leaves the impression that the Court is elegantly attempting to drop the ball in the Security Council's court. Essentially, it is superfluous because, as it stands now, it only paraphrases a basic fact that "the Security Council has special responsibilities under Chapter VII of the Charter". It can be interpreted, it is true, also as an appeal to the United Nations organ, specifically entrusted with the duty and designed to take measures in case of threat to the peace, breach of the peace or act of aggression; but, in that case the Court would need to stress also another basic fact — that a legal dispute should be referred to the International Court of Justice on the basis of Article 36, paragraph 3, of the United Nations Charter.

16. The Court, by using the term "Kosovo" instead of the official name of "Kosovo and Metohija", continued to follow the practice of the political organs of the United Nations, which, by the way, was also strictly followed by the respondent States.

It is hard to find a justifiable reason for such a practice. Except of course if we assume political opportuneness and involved practical, political interests to be a justified reason for this practice. This is eloquently shown also by the practice of the designation of the Federal Republic of
[p 972] Yugoslavia. After the succession of the former Yugoslav federal units, the organs of the United Nations, and the respondent States themselves, have used the term Yugoslavia (Serbia and Montenegro). However, since 22 November 1995, the Security Council uses in its resolutions 1021 and 1022 the term "Federal Republic of Yugoslavia" instead of the former "Federal Republic of Yugoslavia (Serbia and Montenegro)" without any express decision and in a legally unchanged situation in relation to the one in which it, like other organs of the United Nations, employed the term "Federal Republic of Yugoslavia (Serbia and Montenegro)". The fact that this change in the practice of the Security Council appeared on the day following the initialling of the Peace Agreement in Dayton gives a strong basis for the conclusion that the concrete practice is not based on objective, legal criteria but rather on political criteria.
By using the word "Kosovo"instead of the name "Kosovo and Meto-hija", the Court, in fact, is doing two things:

(a) it gives in to the colloquial use of the names of territorial units of an independent State; and
(b) it ignores the official name of Serbia's southern province, a name embodied both in the constitutional and legal acts of Serbia and of the Federal Republic of Yugoslavia. Furthermore, it runs contrary to the established practice in appropriate international organizations. Exempli causa, the official designation of the southern Serbian province "Kosovo and Metohija" has been used in the Agreement concluded by the Federal Republic of Yugoslavia and the Organisation for Security and Co-operation in Europe {International Legal Materials, 1999, Vol. 38, p. 24).

Even if such a practice — which, in my opinion, is completely inappropriate not only in terms of the law but also in terms of proper usage — could be understood when resorted to by entities placing interest and expediency above the law, it is inexplicable in the case of a judicial organ.

17. A certain confusion is also created by the term "humanitarian law" referred to in paragraphs 18 and 31 of the Order. The reasons for the confusion are dual: on the one hand, the Court has not shown great consistency in using this term. In the Genocide case the Court qualified the Genocide Convention as a part of humanitarian law, although it is obvious that, by its nature, the Genocide Convention falls within the field of international criminal law (see dissenting opinion of Judge Kreca, in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, I.C.J. Reports 1996 (II). pp. 774-775, para. 108).

On the other hand, it seems that in this Order the term '"humanitarian law" has been used with a different meaning, more appropriate to the generally accepted terminology. The relevant passage in the Order should [p 973] be mentioned precisely because of the wording of its paragraphs 18 and 31. The singling out of humanitarian law from the rules of international law which the Parties are bound to respect may imply low-key and timid overtones of vindication or at least of diminishment of the legal implications of the armed attack on the Federal Republic of Yugoslavia.

Humanitarian law, in its legal, original meaning implies the rules of jus in bello. If, by stressing the need to respect the rules of humanitarian law, which I do not doubt, the Court was guided by humanitarian considerations, then it should have stressed exprcssis verbis also the fundamental importance of the rule contained in Article 2, paragraph 4, of the Charter, which constitutes a dividing line between non-legal, primitive international society and an organized, de jure, international community.

(Signed) Milenko Kreca.

 
     

 

 

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