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[p.422]
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 Federal Republic of Germany
(hereinafter "Germany") "for violation of the obligation not to use force",
Makes the following Order:[p 423]
1. Whereas in that Application Yugoslavia defines the subject of the dispute
as follows:
"The subject-matter of the dispute are acts of the Federal Republic of
Germany 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 Federal Republic of Germany, 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 Federal Republic of Germany is taking part in
the training, arming, financing, equipping and supplying the so-called
'Kosovo Liberation Army'"; [p 424]
and whereas it further states that the said claims are based on the
following legal grounds:
"The above acts of the Government of the Federal Republic of Germany
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 ter-rorist 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 Punish-ment 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 Federal Republic of Germany 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 Federal Republic of Germany 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 Federal
Republic of Germany 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 Federal Republic of
Germany has acted against the Federal Republic of Yugoslavia in breach of
its obligation to spare the civilian population, civilians and civilian
objects; [p 425]
— by taking part in destroying or damaging monasteries, monuments of
culture, the Federal Republic of Germany 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 Federal Republic of
Germany 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
Federal Republic of Germany 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
Federal Republic of Germany 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 Federal Republic of
Germany 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 Federal
Republic of Germany 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 Federal
Republic of Germany 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 Federal Republic of Germany is responsible for the violation of the
above international obligations;
— the Federal Republic of Germany is obliged to stop immediately the
violation of the above obligations vis-à-vis the Federal Republic of
Yugoslavia;
— the Federal Republic of Germany is obliged to provide compen-[p
426]sation for the damage done to the Federal Republic of Yugoslavia and
to its citizens and juridical persons";
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"; [p 427]
and whereas, while reserving the right to amend and supplement its request,
Yugoslavia requests the Court to indicate the following measure:
"The Federal Republic of Germany shall cease immediately its acts of 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 German 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; [p 428]
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 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 Germany:
Mr. Gerhard Westdickenberg, Agent,
Mr. Reinhard Hilger, Co-Agent;
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 Federal Republic of Germany . . . 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 Germany:
"That the Court decline to indicate the provisional measures requested by
the Federal Republic of Yugoslavia";
**
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; [p 429]
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;
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 1995, 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 on 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";
and whereas in its Application Yugoslavia states that the subject of the
dispute concerns inter alia "acts of the Federal Republic of Germany by
which it has violated its international obligation . . . not to deliberately
inflict conditions of life calculated to cause the physical destruction of a
[p 430] national group"; whereas, in describing the facts on which the
Application is based, Yugoslavia states: "The above-mentioned acts are
deliberately creating conditions calculated at the physical destruction of
an ethnic group, in whole or in part"; whereas, in its statement of the
legal grounds on which the Application is based, Yugoslavia contends that
"the obligation . . . not to impose deliberately on a national group
conditions of life calculated to bring about the physical destruction of
the group has been breached"; and whereas one of the claims on the merits
set out in the Application is formulated as follows:
"by taking part in activities listed above, and in particular by causing
enormous environmental damage and by using depleted uranium, the Federal
Republic of Germany 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";
22. Whereas Yugoslavia contends moreover that the sustained and intensive
bombing of the whole of its territory, including the most heavily populated
areas, constitutes "a serious violation of Article II of the Genocide
Convention"; whereas it argues that "the pollution of soil, air and water,
destroying the economy of the country, contaminating the environment with
depleted uranium, inflicts conditions of life on the Yugoslav nation
calculated to bring about its physical destruction"; whereas it asserts that
it is the Yugoslav nation as a whole and as such that is targeted; and
whereas it stresses that the use of certain weapons whose long-term hazards
to health and the environment are already known, and the destruction of the
largest part of the country's power supply system, with catastrophic
consequences of which the Respondent must be aware, "impl[y] the intent to
destroy, in whole or in part, the Yugoslav national group as such;
23. Whereas for its part Germany contends that Article IX of the Genocide
Convention does not constitute a basis of jurisdiction in this case, because
the subject-matter of the claims brought by Yugoslavia does not relate 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"; and whereas
Germany also maintains that even if true, the breaches of international
obligations alleged by Yugoslavia in its Application do not enter the
definition of Article II of the Genocide Convention;
24. Whereas it is not disputed that both Yugoslavia and Germany are parties
to the Genocide Convention without reservation; and whereas Article IX of
the Convention accordingly appears to constitute a basis on which the
jurisdiction of the Court might be founded to the extent that the
subject-matter of the dispute relates to "the interpretation, applica-[p
431]tion 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 said Convention;
25. Whereas, in order to determine, even prima facie, whether a dispute
within the meaning of Article IX of the Genocide Convention exists, the
Court cannot limit itself to noting that one of the Parties maintains that
the Convention applies, while the other denies it; and whereas in the
present case the Court must ascertain whether the breaches of the
Convention alleged by Yugoslavia are capable of falling within the
provisions of that instrument and whether, as a consequence, the dispute is
one which the Court has jurisdiction ratione materiae to entertain pursuant
to Article IX (cf. Oil Platforms (Islamic Republic of Iran v. United States
of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p.
810, para. 16);
26. Whereas the definition of genocide set out in Article II of the Genocide
Convention reads as follows:
"In the present Convention, genocide means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group";
27. Whereas it appears to the Court, from this definition, "that [the]
essential characteristic [of genocide] is the intended destruction of 'a
national, ethnical, racial or religious group'" (Application of the
Convention on the Prevention and Punishment of the Crime of Genocide,
Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p.
345, para. 42); whereas the threat or use of force against a State cannot
in itself constitute an act of genocide within the meaning of Article II of
the Genocide Convention; and whereas, in the opinion of the Court, it does
not appear at the present stage of the proceedings that the bombings which
form the subject of the Yugoslav Application "indeed entail the element of
intent, towards a group as such, required by the provision quoted above"
(Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J.
Reports 1996 (I), p. 240, para. 26);
28. Whereas the Court is therefore not in a position to find, at this stage
of the proceedings, that the acts imputed by Yugoslavia to the Respondent
are capable of coming within the provisions of the Genocide Convention; and
whereas Article IX of the Convention, invoked by [p 432] Yugoslavia, cannot
accordingly constitute a basis on which the jurisdiction of the Court could
prima facie be founded in this case;
**
29. 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";
30. Whereas Germany contends that Article 38, paragraph 5, of the Rules of
Court is without effect in this case, because Germany does not accept
Yugoslavia's proposal to found the jurisdiction of the Court upon a consent
to be given in accordance with that Article;
31. Whereas it is quite clear that, in the absence of consent by Germany,
given pursuant to Article 38, paragraph 5, of the Rules, the Court cannot
exercise jurisdiction in the present case, even prima facie;
**
32. Whereas it follows from what has been said above that the Court lacks
prima facie jurisdiction to entertain Yugoslavia's Application; and whereas
it cannot therefore indicate any provisional measure whatsoever in order to
protect the rights invoked therein;
33. Whereas, however, the findings reached by the Court in the present
proceedings in no way prejudge the question of the jurisdiction of the Court
to deal with the merits of the case under Article IX of the Genocide
Convention, or any questions relating to the admissibility of the
Application, or relating to the merits themselves; and whereas they leave
unaffected the right of the Governments of Yugoslavia and Germany to submit
arguments in respect of those questions;
***
34. 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; [p 433]
35. 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;
36. Whereas in this context the parties should take care not to aggravate
or extend the dispute;
37. 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;
***
38. 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;
In favour: Vice-President Weeramantry, Acting President: President Schwebel;
Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma,
Higgins, Parra-Aranguren, Kooijmans;
Against: Judges Shi, Vereshchetin; Judge ad hoc Kreca;
(2) By fourteen votes to one;
Reserves the subsequent procedure for further decision.
In favour: Vice-President Weeramantry, Acting President; President Schwebel;
Judges: Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans ; Judge ad hoc Kreca;
Against: Judge Oda.
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 Federal Republic
of Germany, respectively.
(Signed) Christopher G. Weeramantry.
Vice-President.
(Signed) Eduardo Valencia-Ospina,
Registrar. [p 434]
Vice-President Weeramantry, Acting President, and 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 435] DECLARATION OF VICE-PRESIDENT WEERAMANTRY
I make this declaration having regard to the human tragedy and the acute
suffering caused throughout Yugoslavia by the present conflict.
The Court has observed that its decision in no way prejudges the question
of the jurisdiction of the Court to deal with the merits of the case under
Article IX of the Genocide Convention or any questions relating to the
admissibility of the Application or relating to the merits themselves and
leaves unaffected the right of the Parties to submit arguments in respect of
these questions.
The Court is thus seised of this case and continues to be so seised of it
until the hearing. It is not a case where for manifest lack of jurisdiction
it can be dismissed in limine, as was the case with the Applications against
the United States and Spain. This aspect is expressly recognized in
para-graph 2 of the operative part of the Order wherein it is decided that
the Court reserves subsequent procedure for further decision.
Quite apart from the question of the issue of provisional measures, I
therefore consider it appropriate for the Court to issue an appeal to both
Parties to the effect that they should act in accordance with their
obligations under the Charter of the United Nations and other rules of
international law including humanitarian law, and do nothing to aggravate
or extend the conflict.
This is in my view the appropriate course to be followed when a dispute
involving the use of force, loss of human life and a vast amount of
suffering awaits determination on the merits.
I am fortified in believing this to be the appropriate course by the
observations made by the Court relating to its profound concern with the
human tragedy and loss of life involved and by its reference to its own
responsibilities in the maintenance of peace and security under the Char-ter
and the Statute of the Court.
Such an appeal in my view would be well within the Court's functions and
responsibilities under the Charter and the Statute as well as under its
inherent jurisdiction as more fully explained by me in my dissenting opinion
in Yugoslavia v. Belgium.
Such an appeal would in my view have more value than the mere reference to
these matters in the text of the Order.
(Signed) Christopher G. Weeramantry.
[p 436] 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
437]
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 38 (1) of the present Order.
(Signed) Shi Jiuyong.
[p 438]
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. Jurisprudential^, 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
439] 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 440]
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 441]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 442] 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 of the Court Due to the Lack of
Jurisdiction |
25-29 |
[p 443]
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 " [r]eserves 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
"the Federal Republic of Yugoslavia (Serbia and Montenegro) can [p 444]not
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
445]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 446]
(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 447]
(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 448]
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 449]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 450] 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
451]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
452] 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 compromissory 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, J 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
563] 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
454]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 455] 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 456]
Provisional measures which ought to be taken to preserve the respective
rights of either party may be indicated by the Court "r/ 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 457] 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
458] 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 459] SEPARATE OPINION OF JUDGE PARRA-ARANGUREN
1. Notwithstanding my agreement with the operative part of the Order, I
consider it necessary to make the following observations.
2. Article IX of the Genocide Convention is in force between the Parties. It
prescribes:
"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."
3. Yugoslavia maintains that the Respondent has violated:
"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 . . ." (Application of Yugoslavia, p. 12).
Furthermore, during the public hearings Yugoslavia stated "in the
circumstances the intensive bombing of Yugoslav populated areas
constitutes a breach of Article II of the Genocide Convention" (CR 99/25,
p. 12, Brownlie).
4. The Respondent considers that it has not violated the Genocide
Convention, because no genocide crimes have been committed during or as a
result of the military intervention of the NATO countries in Yugoslavia.
5. In its Judgment of 11 July 1996 the Court admitted prima facie the
existence of a legal dispute between the Parties because of the existence
of:
"'a situation in which the two sides hold clearly opposite views concerning
the question of the performance or non-performance of certain treaty
obligations' (Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74)
and that, by reason of the rejection by Yugoslavia of the complaints
formulated against it by Bosnia and Herzegovina, 'there is a legal dispute'
between them (East Timor (Portugal v. Australia), I.C.J. Reports 1995, p.
100, para. 22)" (Application of the Convention on [p 460] the Prevention and
Punishment of the Crime of Genocide, Preliminary Objections, I.C.J. Reports
1996 (II), pp. 614-615, para. 29).
6. Consequently, taking into account the allegations of the Parties in these
incidental proceedings, there appears to exist, prima facie, a "legal
dispute" between them regarding the interpretation and application of the
Genocide Convention. For this reason, Article IX of the Genocide Convention
is applicable and, in my opinion, the Court has prima facie jurisdiction to
entertain the request for provisional measures presented by Yugoslavia.
7. Article IX of the Genocide Convention is the only prima facie basis for
jurisdiction of the Court in the present case. Therefore the only
provisional measures that it can indicate are those aiming to guarantee the
rights of the Applicant under the Genocide Convention.
8. Yugoslavia is requesting the Court to indicate that the Respondent "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" (CR
99/14, p. 63, Etinski). However, the threat or use of force against a State
cannot in itself constitute an act of genocide within the meaning of the
Genocide Convention. Consequently the provisional measures requested by
Yugoslavia do not aim to guarantee its rights under the Genocide Convention,
i.e., the right not to suffer acts which may be qualified as genocide crimes
by the Convention. Therefore, in my opinion, the measures requested by
Yugoslavia shall not be indicated.
(Signed) Gonzalo Parra-Aranguren. [p 461] 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.
Jurisdiction of the Court
Ratione
Materiae
|
8-10 |
|
|
IV.
Other Relevant Issues
|
11-14 |
[p 462]
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. III, 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 A/B, 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 463]
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. III, 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 objections to
the circumstance that as many as five respondent States [p 464] 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 presumptio juris et 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 1998, 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 hoc,
in the case concerning the Applicant and respondent States which [p 465] 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 A/B, 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
States 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 being has
the inherent right to life and this right shall be protected [p 466]by law."
(LaGrand (Germany v. United States of America), Provisional Measures, Order
of 3 March 1999, I.C.J. Reports ¡999, 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-mentioned 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
"pro-found reservations about the procedures followed both by the Applicant
and the Court" (LaGrand (Germany v. United States of America), Provisional
Measures, Order of 3 March 1999, I.C.J. Reports 1999, p. 22).[p 467]
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.” (l.C.J. Reports 1999, p. 22.)
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 Faso/Republic 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).
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 stand-[p
468]ard 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.co.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
plants without which there is no electricity, water supply and production [p
469] 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 al, March 1993, pp.
47-48.)
A scientific analysis of the concrete effects of armed operations against [p
470] 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 lang-fristigen 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 Umweltschädigungen 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 471]
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 Tageszeitung, 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 the [p 472]
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. I 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 36 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. Jurisdiction of the Court Ratione Materiae
8. I am of the opinion that in the matter in hand the Court's position is
strongly open to criticism. The Court finds:
"whereas the threat or use of force against a State cannot in itself
constitute an act of genocide within the meaning of Article II of the
Genocide Convention; and whereas, in the opinion of the Court, it does not
appear at the present stage of the proceedings that the bombings which form
the subject of the Yugoslav Application 'indeed entail the element of
intent, towards a group as such, required by the provision quoted above'
(Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J.
Reports 1996 (I), p. 240, para. 26)" (Order, para. 27).
The intent is, without doubt, the subjective element of the being of the [p
473] crime of genocide as, indeed, of any other crime. But, this question is
not 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 474]
9. 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
475]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.
10. 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 476]
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 psychosociologie eriminelle, 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.
IV. Other Relevant Issues
11. 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 [p 477] whole, is the
object of attack. Human suffering and loss of life are, unfortunately, 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.
12. The formulation of paragraph 37 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.
13. 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 [p 478] shown also by the practice of the designation of the
Federal Republic of 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 Metohija", 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.
14. A certain confusion is also created by the term "humanitarian law"
referred to in paragraphs 18 and 35 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 [p 479]
generally accepted terminology. The relevant passage in the Order should be
mentioned precisely because of the wording of its paragraphs 18 and 35. 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 expressis 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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