INTERNATIONAL COURTOF ruSTICE
Peace Palace. 2517 KJThe Hague. Tel.(31-70-302 23 23). Cables: lntercourt, The Hague.
Telefax (31-70-364 99 28). Telex 32323. Internet address : http: Il www.icj-cij.org
Communiqué
unofficial
forimmediaterelease
No. 99/24
2 June 1999
Legality of Use of force
(Yugoslavia v. Belgium)
The Court rejecq the request for the indication of provision al measures
submitted bJ'Yugoslavia. but remains seised of the case
THE HAGUE, 2 June 1999. Today, the International Court of Justi(ICJ) rejected
the request for the indication of provisional measures submitted by the Federal Republic of
Yugoslavia (FRY) in the case concerning Legality of Use of force (Yugoslavja v. Be!giurn). The
decision was taken by twelve votes four.
In itsrder, the Court also stated that it remained seised of the caIt reserved the
subsequent procedure for furthercisi byonifteen votes to one.
Since the Court included on the Bench no judge of the nationality ofYugoslavia or Belgium,
those twoStates each appointea judge ~-
Backgnpund infoonation
On 29 April 1999 Yugoslavia filed an Application instituting proceedings against Belgium
"for violation of the obligation not to use force", accusing that Sta.teofbombing Yugoslav tenitory
"together with other Member States ofNATO" (see Press Communiqué 99/17). On the same day,
it submitted a request for the indication of provisional measures, asking the Court to order Belgiurn
to "cease imln.ediately its acts of use of force" and to "refrain from any act ofthreat or use of force"
against the FRY.
As a basis for the jurisdiction of the Court, Yugoslavia invoked the declarations by which
both States bad accepted the compulsocy jurisdiction of the Court in retoany other State
accepting the same obligation (Article 36, paragraph 2, of the Statute of theCourt), and Article IX
of the Convention on the Prevention and Punisbment of the Crime of Genocide, adopted by the
United Nations General Assembly on 9 December 1948. Article IX of the Genocide Convention
provides that disputes between the contracting parties relatinginterpretation, application or
fulfilment of the Convention shall be submitted to the International Court of JustiIn.a
supplement toits Application submitted to the Court12May 1999, Yugoslavia invoked, as an
additional ground of jurisdiction, Article 4 of the Convention of Conciliation, Judicial Settlement
and Arbitration between Belgium and the Kingdom of Yugoslavia, signed at Belgrade on
25 March 1930.
Reasoning of the Court
In its Order, the Court first emphasizes that it is "deeply concemed with the human tragedy,
the lossf life, and the enormous suffering in Kosovo which fonn the background" of the dispute
and "with the continuing loss life and human suffering in ali parts of YugoslaIt declares - 2 -
itself "profoundly concemed with the use of force in Yugoslavia", which ''under the present
circumstances ... raises very serious issues of international law". While being "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 [its] Statute", the Court "deems it
necessary to emphasizethat ali parties before it must act in conformity with their obligations under
the United Nations Charter and ether rules of international law, including humanitarian law".
The Court then points out that it "does not automatically havejurisdiction over legal disputes
between States" and that "one of the fundamental principles of its Statute is that it cannet decide
a dispute between States without the consent ofthose States to itsjurisdiction". It cannet indicate
provisional measures without itsjurisdiction in the case being established prima facie (at first sight).
Concerning the first basis.of jurisdiction invoked, the Court observes that under the terms of
its declaration, Yugoslavia limits its acceptance of the Court's compulsory jurisdiction to "disputes
arising or which may arise after the signature of the present Declaration, with regard to the
situations or facts subsequent to this signature". ltempbasizes that although Belgium did not base
any argument on this provision, the Court must consider what e:ffects it might have prima facie
upon its jurisdiction. In this regard, the Court states, it is suffi.cientto decide wbether the dispute
brought to the Court "arase" before or after 25 April 1999, the date on which the declaration was
signed. It fmds that the bombings began on 24 March 1999 and have been conducted continuously
over a period extending beyond 25 April 1999. The Court bas thus no doubt that a "legal
dispute ... 'arase'between Yugoslavia and [Belgium], as it did also with the ether NATO member
States, weil before 25 April 1999". The Court concludes that the declarations made by the Parties
do not constitute a basis on which the jurisdiction of the Court could prima facie be founded in the
case.
Asto Belgium's argwnent that Yugoslavia is not.a member State of the United Nations in
view of United Nations General Assembly resolution 4711 (1992), nor in consequence a party to
the Statute of the Court. so that Yugoslavia cannat subscribe to the optional clause of compulsory
jurisdiction, the Court maintains that it need not consider this question, tak.ing into account its
finding that the declarations do not constitute a basis of jurisdiction.
Conceming Article IX of the Genocide Convention, the Court states tbat it is not disputed
that both Yugoslavia and Belgium are parties to that Convention, without reservation, and that
Article IX accordingly appears to constitute a basis on which the jurisdiction of the Court migbt be
founded. The Court however finds that it must ascertain whether the breaches of the Convention
alleged by Yugoslavia are capable offalling within the provisions ofthat instrument and whetber,
as a consequence, the dispute is one over which the Court might have jurisdiction ratione materiae
(asto the subject). In its Application, Yugoslavia contends that the subject of the dispute concems
inter alia"acts of the Kingdom ofBelgium by which it bas violated its international obligation ...
not to deliberately inflict conditions of !ife calculated to cause the physical destruction of a national
group". lt contends that the sustained and intensive bombing ofthe whole of its territory, including
the most heavily populated areas, constitutes "a serious violation of Article II of the Genocide
Convention", that it is the Yugoslav nation as a whole and as such that is targeted and that the use
of certain weapons wbose 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 ofwhich the Respondent must be aware, "impl[y] the intent to destroy, in whole or
in part", the Yugoslav national group as such. For itspart. Belgium, referring to the definition of
genocide contained in the Convention, emphasizes the importance of "the intentional element, the
intent to destroy ali or part of an ethnie, racial or religious [group]". It asserts that Yugoslavia
cannat "produce the slightest evidence of such intention" on the part of Belgium in this case. It
appears to the Court that, according to the Convention, the essential characteristic of genocide is•·-
- 3 -
the intended destruction of a national, ethnical, racial or religious group; the Court further states
that "the threat or use of force against a State cannat in itself constitute an act of genocide within
the meaning of Article II of the Genocide Convention". It adds that in its opinion, it does not
appear at the present stage of the proceedings that the bombings which fonn the subject of the
Yugoslav Application "indeed entai! the element ofintent, towards a group as such, required by the
provision" mentioned above. The Court considers therefore that it is not in a position to find, at
this stagef the proceedings, thatthe acts imputed by Yugoslavia to Belgium arecapable ofcoming
within the provisions of the Genocide Convention; and Article IX cannat accordingly constitute
a basis on which the jurisdiction of the Court could prima facie be founded in the case.
Asto Article 4of the Convention of Conciliation, Judicial Settlement and Arbitration between
Belgium and the Kingdom ofYugoslavia, the Court observes that "the invocation by a party of a
new basis of jurisdiction in the second round of oral argument on a request for the indication of
provisional measures bas never before occurred in the Court's practice", that "such action at this late
stage, when not accepted by the other party, seriously jeopardizes the principle of procedural
faimess and the sound administration of justice" and that in consequence the Court cannat tak.einto
consideration this new title of jurisdiction.
The Court having found that it bas "no prima facie jurisdiction to entertain Yugoslavia's
Application, either on the basisof Article 36, paragraph 2, of the Statute or of Article IX of the
Genocide Convention" and having "taken the view that it cannat, at this stage of the proceedings,
tak.eaccount of the additional basis ofjurisdiction invoked by Yugoslavia", it follows thatthe Court
"cannat indicate any provisional measure whatsoever". However, the findings reached by the Court
"in no way prejudge the question ofthejurisdictionof the Court to deal with the merits of the case"
and they "leave unaffected the right of the Goveriunents of Yugoslavia and Belgium to submit
arguments in respect of those questions".
The Court fmally observes that "there is a fundamental distinction between the question of
the acceptance by a State of the Court's jurisdictionand the compatibility of particular acts with
international law". "The fonner requires consent; the latter question can only be reached when the
Court deals with the merits after.having established its jurisdiction and having beard full legal
arguments by both parties." Itemphasizes that "whether or not States acceptthe jurisdiction of the
Court, they remain in any event responsible foracts attributableto them that violate international
law, including humanitarian law" and that "any disputes relating tothe legality of such acts are
required to be resolved by peacefui means, the choice of which, pursuant to Article 33 of the
Charter, is left to the parties". In this context, "the parties should tak:e care not to aggravate or
extend the dispute". The Court reaffinns that "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".
Composition of tbe Court
The Court was composed as follows in the case: Vice-President Weeramantry, .ë.&ting
President; President Schwebel; ~ Oda, Bedjaoui. Guillaume, Ranjeva, Herczegh, Shi,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judges ad hoc Kreéa,
Duinslaeger; Registrar Valencia-Ospina.
~ Koroma bas appended a declaration to the Court's Order. Judges Oda, Higgins,
Parra-Aranguren and Kooijmans have appended separate opinions. Vice-President Weeramantry,
Acting President. Shi and Vereshchetin, and~ ad hoc Kreéabave appended dissenting
opinions. - 4-
The text of the declarations and a brief summmy of the opinions will be published later as
an addendum to the present Press Communiqué. The full text of the Order, declarations and
opinions appears on the Court's website (http://www.icj-cij.org).
The nine ether cases conceming LegaJizyof Use of Force submitted by Yugoslavia to the
Court form the subject of separate press releases.
Information Office
Mr. Arthur Witteveen, Secretai)' of the Court (tel: + 31 70 302 23 36)
Mrs. Laurence Blairon, Information O:fficer(tel: + 31 70 302 23 37)
E-mail address: [email protected] Addendum to Press Communiqué No. 99/24
DECLARATION OF JUDGE KOROMA
In his declaration Judge Koroma observed that these were perhaps the most serious cases that
have ever come before the Court for provis1ona1measures. He stated that jurisprudentially such
measures were designed to prevent violence, the use of force, to safeguard international peace and
security as weilas serving as an important part of the dispute settlement process under the Charter
of the United Nations. In his view the indication of such measures therefore represents one of the
most important functions of the Court.
But the granting of such a relief, he stressed, could only be done in accordance with the
Statute of the Court. In this regard, and in the light of the jurisprudence of the Court, where prima
facie jurisdiction is absent or other circumstances predominate, the Court will not grant the request
for provisional measures.
Nevertheless, he considered the Court, being the principal judicial organ of the United
Nations, whose primary raison d'êtreremains the preservation of international peace and security,
ta be under a positive obligation to contribute to the maintenance of international peace and security
and to provide ajudicial framework for the resolution of a legal conflict, especially one which not
only threatens international peace and security but also involves enormous human suffering and
continuing Jossof life. He bad thereforejoined with the 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, includîng
humanitarian law and the human rights of ali the citizens of Yugoslavia.
SEPARATE OPINION OF JUDGE ÛDA
Judge Oda supports the decision of the Court in dismissing the requests for the indication of
provisional measures by the Federal Republic ofYugoslavia against ten respondent States. While
favouring the decision of the Court to remove the case from the General List of the Court in the
cases of Spain and the United States, Judge Oda voted against the decision in the other eight cases
in which the Court ordered that it "[r}eserves the subsequent procedure for further decision",
because he believes that those eight cases should also be removed at this stage from the General
List of the Court.
Judge Oda considers that the Federal Republic ofYugoslavia is not a Member of the United
Nations and thus not a party to the Statute of the International Court of Justice. The Applications
presented by the Federal Republic ofYugoslavia should tberefore be declared inadmissible for this
reason alone and should be removed from the General List of the Court.
He nevertheless then goes on to discuss whether, if the Federal Republic ofYugoslavia were
to be considered a party to the Statute, îtcould have brought the present Applications on the basis
of certain legal instruments. After having examined the meaning of (i) the optional clause of the
Court's Statute, (ii) the background to the 1930 and 1931 instruments with Belgium and the
Netherlands, respectively, and (iii) the 1948 Genocide Convention, he reaches the conclusion that
none of these instruments grant the Court jurisdiction in any of the ten Applications.
Judge Oda agrees with the Court that, as it has no basis of jurisdiction, it must reject the
requests for the indication ofprovisional measures in ail ten cases. However, he considers that, the
Court having decided that it basno jurisdiction ta entertain the cases, not even prima facie, that this
can only mean that it bas no jurisdiction wbatsoever in any of the cases. lt follows, in Judge Oda's
view, that not only in the cases of Spain and the United States, in which the Court states that it
manifestly lacksjurisdiction, but in ali the other cases, the Applications should be dismissed at this
stage, given that the Court bas found that there is not even a prima facie basis of jurisdiction. - 2 - .
1
Judge Oda also points outthat, while the mak:t edistinction between the Applications,
even though they deal virtually with thee subject-mafter, this distinction, which came about
simply because of the different positions which individual States happened to take towards the
various instruments that are to be applied conceminCourt'jurisdîctîon, willlead to differing
results concerning the future proceedings in each of the ~aIsJudge Oda's view this is an
illogical situation, which supports his contention t1tt eaes should be dismissed in their
entiretyat this stage.
1
SEPARATE OPINION OF JUDGE HIGGINS i
1
i
Judge Higgins in ber separate opinions addresses two issues that arise in relation to those
cases where the Federal Republic ·of Yugoslavia claj~risd inthe bosns of Article 36,
paragraph 2,of the Statute. The first issue concerns temporal limitations to so-called "optional
clauses", and in particular the question ofwhen a da~setand when the relevant events have
occurred. These concepts are analysedin connection witp Yugoslavia's own declaratioThe
second issue addresses the question of exactly what ~beshown for the Court to be satisfied
it has prima facie jurisdiction wben it is considering the intlication of provisional measures. It is
suggested that sorne jurisdictional issues are so complex tbdt they cannat be addressed at ali at this
phase; their holdingover for a later phase does not stan4 in the way of the Court determining
whether or not ît bas prima facie jurisdictîon for the purpe;ses of Article 41.
1
1
SEPARATE OPINION OF JUDGE PARRA-ARANGUREN
1
Judge Parra-Aranguren recalls that Yugoslavia maï4tains that "the bombing of Yugoslav
populated areas constitute a breach of Article II ofthe Genocide Convention", a contention denied
by the Respondent; that a legal dispute exists between the:Parties becauseexistence of "a
situation in whicb the two sides hold clearly opposite views concerning the question of the
performance or non-performance of certain treaty obligations", as the Court stated in its decision
of 11 July 1996 (Ap_plicationof the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), 1.C.J.RePorts 1996 CID,pp. 614-615, para. 29);
and that according to Article IX of the Genocide ConventiÇm, "disputes between the Contracting
Parties relating to the interpretation or fulfilment of the pres:entConvention" shall be submitted ta
the International Court of Justice. Therefore, in his opinionlthe Court bas prima facie jurisdiction
ta decide upon the provisional measures requested by Yug6slavia.
1
Yugoslavia requested the Court ta indicate that the Respondent "shall cease immediately the
acts of use of force and shall refrain from any athref ~rtuse of force against the Federal
Republic of Yugoslavia". However, the threat or use of force against a State cannat in itself
constitute an act of genocide within the meaning of the Genocide ConventioConsequently,
Yugoslavia is requesting the indication of provisional mea.Suresthat do not aim ta guarantee its
rights under the Genocide Convention, i.e., the rigbt not to shifer acts which may be characterized
as genocide crimes by the Convention. Thereforin the opinion of Judge Parra-Aranguren, the
measures requestedby Yugoslavia should not be indicated. :
SEPARATE OPINION OF JirnGE KOOIJMANS
1
1. Judge Kooijmans joined a separate opinion to t~rder of the Court in the cases of
Yugoslavia versus Belgium, Canada, the Netherlands, Portugal, Spain and the United Kingdom,
respectively. ·i
1
He does not agree with the Court's view Yugosl declvrtian'ofacceptance of the
compulsory jurisdiction of the Cour25oApril 1999 cann poo~ide a basis of jurisdiction in the
1
'1
1
1 - 3 -
present case, even prima facie, because of the reservations incorporated in the declarations of Spain
and the United Kingdom, cq. because of the temporal limitation contained in Yugoslavia's
declaration (cases agaînst Belgium, Canada, the Netherlands and Portugal). He is of the view that
the Court Jacks prima facie jurisdiction because of the controversial va!idity of Yugoslavia's
declaration. This validity issue constitutes a preliminary issue and should, therefore, have been dealt
with by the Court as a threshold question.
Since this issue is of no relevance in the four other cases (against France, Germany, Italy and
the United States) as these States themselves do not recognize the compulsory jurisdiction of the
Court, there is no need for a separate opinion in those cases.
2. Article 36, paragraph 2, of the Statute explîcitly states that only States which are party to ·
the Statute can recognize the compulsory jurisdiction of the Court by depositing a declaration of
acceptance with the Secretary-General of the United Nations. Member States of that organization
are eo ipso party to the Statute. Ali six Respondents contended, that since the Federal Republic of
Yugoslavia is not a Member of the United Nations, its declaration of acceptance bas not been
validly made.
3. On 22 September 1992 the General Assembly, on the recommendation of the Security
Council, decided that the Federal Republic of Yugoslavia cannat continue automatically the
membership of the former Socialist Federal Republic of Yugoslavia and therefore that it should
apply for membership in the United Nations. Until that time it shall not participate in the work of
the General Assembly (res. 47/1). The Federal Republic of Yugoslavia never applied for
membership.
4. In itspresent Orders the Courtavoids the question of the contested validity ofYugoslavia's
declaration. lt takes the position that it need not consider this issue since the declaration cannot
provide the Court with a ba.Sisfor prima facie jurisdiction on other grounds.
5. Judge Kooijmans is of the view that the Court's reasoning in this respect is inconsistent.
Such other grounds only become relevant if the validity of the declaration- at !east for the present
stage of the proceedings- is accepted. The Court's reasoning is based on a presumption of
validity and the Court should have said so and have given its arguments for it.
6. According to Judge Kooijmans there certainly was no need for the Court to take a
definitive stand on Yugoslavia's membership of the United Nations. He is fully aware that
resolution 47/1 is unprecedented and raises a number of highly complex legal questions, which
require a thorough analysis and careful evaluation by the Court at a later stage of the proceedings.
Difficult though the question may be, the relevant decisions have been taken by the organs
of the United Nations which have exclusive authority in matters ofmembership (Security Council
and General Assembly)_and they cannat be overlooked or ignored.
7. According to Judge Kooijmans the doubts, raised by the decisions of the competent United
Nations bodies with regard to Yugoslavia's membership and the ensuing validity of its declaration,
are, however, so serious that the Court should have concluded that this declaration cannat provide
it with a basis for prima facie jurisdîction. The Court should not indicate provisional measures
unless its competence to entertain the dispute appears to be reasonably probable and this test of
reasonable probability cannat be passed because of the doubtful validity of the declaration. ~-
- 4 -
8. If thal is the case, issues like retemp~raons and ln lhichthictsewetrions
decîdedby the Court, become îrrelevant since they are *holly conditioned by the preliminary
questionof the declaration's validity. J
'
1
DISSENTING OPINION OF VICE-PRESIDENT WEERAMANTRY
1
Vice-President Weeramantry in his dissenting opinionltakes the view that the Court bas prima
facie jurîsdiction in this case and that provisionalld have been issued against bath
Parties. Lives are being lost daily and vast numbers of people including women, chîldren, the aged
and the infirme continuously exposed to physical danger; and suffering, and important issues of
law are involved, which go to the fundamentals i~temati rln allaw, the peaceful
resolution of disputes and the Charter provisiotbthe prohibition of the use of force.
1
1
If the Court bas prima facie jurisdiction yta case in which provisional measures
should have been issued on bath Parties. !
1
He disagreed with the Court'sreasoning that the acts complained of relate back to 24 March
the date when the bombing commenced and that tberef6re there was a lack of prima facie
jurisdiction as the operative date specified in Yugoslavia's declaration wass view
the claims of Yugoslavia became legal claims on~e acts complained of were performed
and not when the entire bombing campaign was planned. ·He bases this view on the principles
usually applied in determining when a legal cThimclaims ofYugoslavia thus arase after
the date specifiedYugoslavia's declaration (25~dprnot on the date when the bombing
commenced (24 March). The Court therefore does have prima facie jurisdiction over the case.
He disagreed with the contention tinvolve oeampelictl elemenr~de heed
matter unsuitable for the issue of provisional m!asures.
The Court performs a role complementary to that of ether United Nations organs in the
maintenance of peace and the peaceful settldisputof ~isalso the raie of the Court to
facilitate negotiations between the Parties and to assist the peaceful settlement of
disputes. Interim measures containing such provisions woulQ.have served a useful purpose. There
is ample support for such an approach in the jurOfthe Court as weil as in the inherent
powers of the Court. :
1
A precondition to the .issue of interim measures o/ould be that the Applîcant should
immediately cease from any violence towards the ~osoveand that the return of refugees
and other displaced persans should be facilitated under intei:national safeguards. The provisional
measures should also have called for the immediate cessation of the use of force against Yugoslavia.
These requirements are interlinked. 1
1
The Court is heir to the judicial traditions of the Pr:incipal forms of civilization and the
peaceful settlement of disputes is a strong tradition in the civilizations of the East. For example
the peaceful settlementdisputes is deeply embedded in: the Buddhist tThe Court's
jurisprudence could be enriched by ~sperspective, which W.ouldalso have giinthet support
issue ofprovîsîonal measures with a view to restraining the use of force on bath sides, and assisting
in promoting negotiation and settlement between the Parties.
DISSENTING OPINION OF JUDGESHl
In the four cases of Yugoslavia against Belgium, Canada, the Netherlands and Portugal.
JudgeShi disagrees with the Court's fmdings that, given the !limitation ratione temporis contained • 5 -
in Yugoslavia's declaration of acceptance of compulsory ju~isd the Coturt acned,prima facie
jurisdictionunder Article 36, paragraph 2, of the Statute for the indication of provisional measures
requested by Yugoslavia.
By that declaration, signed on 25 April 1999, Yugoslavia recognized compulsory jurisdiction
"in ali disputes arising or which may arise after the signature of the present Declaration, with regard
to the situations or facts subsequent to this signature. ". In cases where the Court is confronted
with such a "double exclusion formula", it has to ascertain both the date of the dispute and the
situations or factswith regard to which the dispute has arisen.
As to the first aspect of the time condition, the Court has to determine what is the
subject-matter of the dispute, which in the present cases consists of a number of constituent
elements. The section "Subject of the Dispute" in each ofYugoslavia's Applications indicates that
subject-matter to be acts of the Respondent bywhich ithas violated its international obligations not
to use force against another State, not to intervene in the internai affairs of another State, not to
violate the sovereignty of another State, to protect the civihan population and civilian abjects in
wartime, to protect the environment, etc.
Prior to the coming into existence of ali the constituent elements, the dispute cannat be said
to arise. Though the aerial bombing of the territory of Yugoslavia began sorne weeks before the
critical datef signature of the declaration, aerial bombing and its effects as such do not constitute
a dispute. lt is true that prier to the critical date, Yugoslavia bad accused NATO of illegal use of
force against it. This complaint constitutes at the most one of the many constituent elements of the
dispute. Besîdes, NATO cannat be identi:fied with, nor be the Respondent in the present cases
ratione personae. The dispute only arase at the date subsequent to the signaturef the declaration.
Regarding the second aspect of the time condition, the dispute relates to the alleged breach
of various international obligations by acts.of force, in the form of aerial bombing of the territories
ofYugoslavia, which are attributed by the Applicant to the respondent State. lt is obvions that the
alleged breach of obligations by such a "contînuing" act fust occurred at the moment when the act
began, weeks before the critical date. Given that the acts of aerial bombing continued weil beyond
the critical date and still continue, the time of commissionof the breach extends over the whole
period during which the acts continue and ends only when the acts of the respondent State cease.
The conclusion may be drawn that the limitation ratione temporis contained in Yugoslavia's
declaration in no way constitutes a bar to founding prima facie jurisdiction upon Article 36,
paragraph 2, of the Statute for the purpose of indicating provisional measures in the present case.
Moreover, for reasons similar to those expressed in the declarations relating to the other six
cases, Judge Shi regrets that the Court, being confronted with a situation of great urgency, failed
to make a general statement appealing to the Parties to act in compliance with their obligations
under the United Nations Charter and ali the rules of international law relevant to the situation, and
at least not to aggravate or extend their disputes immediaty!upon receipt of Yugoslavia's request
and regardless of what might be the Court's conclusion on prima facie jurisdiction pending its final
decision. The Court also failed to make use of Article 75, paragraph 1, of the Rules of Court to
decide the requests proprio motu, despite Yugoslavia having so asked.
Forthese reasons, Judge Shi felt compelled to vote against operative paragraph (1) ofthe four
Orders.
DISSENTING OPINION OF JUDGE VERESHCBETIN
Judge Vereshchetin begins his dissenting opinion with ageneral statement, attached to ail the
Orders of the Court, in which he holds that the extraordinary and unprecedented circumstances of - 6-
the cases before the Court imposed on it a need to act profi1ptiy and, if necessary, proprio motu.
After that, he proceeds to explain why he bas ndou~ hat prima facie jurisdiction under
Article 36, paragraph 2, of the Statute of the Court exists with regard to the Applications instîtuted
against Belgium, Canada, the Netherlands and Portugal. As !faras Belgium and the Netherlands are
concerned, theCourt also bas prima facie jurisdicu~dn tee Agreements signed between
Belgîum and Yugoslavia on 25 March 1930 and between the Netherlands and Yugoslavia on
11March 1931. J .
Judge Vereshchetin disagrees with two cornepr~poe onwhich, ihioopinsn, rest
the arguments to the contrary upheld in the Orders Court. The first proposition is that the
text of the Yugoslav declaration accepting the jurisdictioh of the Court, and in particular the
wording of the reservation contained therein, does not grant prima facie jurisdiction ta the Court.
1
The second proposition is that the timing of the presentation: by Yugoslavia of the additional bases
for jurisdiction does not allow the ta conclude that it :bas prima facie jurisdiction in respect
of the cases instituted against Belgium and the Netherlands.
1
As concems the first proposition, Judge Vereshchefin talees the view that the Court, by
refusing to tak:einto account the clear intention ofYugoslayia, reads its declaration in a way that
could leado the absurd conclusion that Yugoslavia i1tended by its declaration of acceptance of the
Court's jurisdiction to exclude the jurisdiction of the Cqurt over its Applications instituting
proceedings against the Respondents. 1
As to thesecond proposition connected with the jnvocation of additional grounds of
jurisdiction in relation to Belgium and the Netherlands, in the opinion of Judge Vereshchetin, the
Iegitimate concem of the Court over the observance of"the principle ofprocedural fairness and the
sound administrationf justice" cannat be stretched to such an extent as to exclude a priori the
additional basis jurisdiction from its consideration, solely *ecause the respondent States have not
been given adequate time to prepare theîrer-argu mdmnitdly, it cannat be considered
normal for a new basis ofjurisdiction to be invoked in the seÇond round of the hearings. However,
the respondent States were given the possibility of presenting their counter-arguments to the Court,
and they used this possibiliiy to mak:e various observations and objections to the new basis of
jurisdiction. lfnecessary, they could have asked for the prolbngation of the hearings. In turn, the
Applicant may reasonably claim that the belated invocation',ew titles of jurisdiction was
caused by the extraordinary situation in Yugoslavia, in whic.h the preparation of the Applications
had been carried out under conditions of dailybomb~dme by the Respondents.
1
The refusai of the majority to tak:einto cons~eenew bases of jurisdiction is clearly
contrary to Article 38the Rules of Court and to the 1ourt's jurisprThe refusai to have
due regard to the intention of aState making a declaration of,acceptance of the Court's jurisdiction
is also incompatible with the Court's case-lawth the customary rules for interpreting legal
instruments. In the view of Judge Vereshchetin, ail the: requirements for the indication of
provîsional measures, flowing from Article 41 of the Court'siStatute and from its well-established
jurisprudence,ave been met, and the Court shoundoubt ~delindicated such measures so
far as the above four States are concerned. '
DISSENTING OPINION OF JUDGE KREéA
In his dissenting opinion Judge Kreéapoints o~olloe weevant issues:
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1
Judge Kreéafmds that none of the equalizatîon functic;msof the instituti~n of judge
have been met in this particular case. The letter a~ciepir31, paragraph 2, of the Statute
ofthe Court, applied to this particular case, imply the right OfYugoslavia, as the applicant State,
to choose as many judges ad hoc to sit on the Bench as is necessary to equalize the position
applicant State and that of the respondent States which have judges of their nationality on the Bench
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and which share the same interest. In concreto, the inherent right ta equalization in the composition
of the Bench, as an expression of a 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 (United States, the United Kingdom, France, Germany, and the Netherlands)
have their national judges sitting on the Bench.
At the same time, according to coherent jurisprudence of the Court, none of the respondent
States were entitled to appoint a judge ad hoc (Territorial Jurisdiction of the International
Commission of the River Oder; Customs Régime between Gennany and Austria).
There is no need to say that the above-mentioned issues are of upmost specifie weight in view
of the fact that obviously the meaning of such issues is not restricted to the procedure, but that it
may have a far-reaching concrete meaning.
Judge Kreéa finds that in the recent practice of the Court, in particular that in which
individuals were direct!y affected, a high standard of humanitarian concem in the proceedings for
the indication of interim measures bas been formed, a standard which commanded sufficient
inherent strength to brush aside sorne relevant, bath procedural and material, rules governing the
institution of provisional measures (exampli causa, the LaGrand case). Thus, bumanitarian
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 philanthropie sphere, and entered the sphere of law.
ln the case at band, it seems that "humanitarian concem" has lost the acquired autonomous
legal position. The fact needs to be stressed in view of the special circumstances of this case.
Unli.kethe recent practice of the Court, "humanitarian concem" hasas its abject the fate of an entire
nation, in theliterai sense. The Federal Republic ofYugoslavia and its national and ethnie groups
have been subjected for more than two months now to continued attacks of a very strong, highly
organized airarmada of the most powerful States ofthe world. At the same time, the arsenal used
in the attacks onYugoslavia contains also weapons whose effects have no limitations either in space
or intime such as depleted uranium which cause far-reaching and irreparable damage to the health
of the whole population.
Judge Kreéafmds that, as regards the membership of Yugoslavia in the United Nations, the
Court remained consistent with its "avoidance" position, persisting in its statement that it "need not
consider this question for the purpose of deciding whether or not it can indicate provisional
measures in the present case. But it is the profound conviction of Judge Kreca that the Court
should have ànswered the question wbether the Federal Republic of Yugosiavia can or cannat, in
the light of the content of General Assembly resolution 47/1 and of the practice of the world
Organization, be considered to be a Member of the United Nations and especially party to the
Statute of the Court; namely the text of resolution 47/1 makes no mention of the.status of the
Federal Republic ofYugoslavia as a party to the Statute of the International Court of Justice. Judge
Kreca is equally convinced that, especially because the Court should have answered that question,
bath the content of the resolution which represents contradictio in adiecto and in particular the
practice of the world Organization after its adoption over a period of nearly seven years, offered
ample arguments for it to pronounce itself on this matter.
Judge Kreéais of the opinion that the extensive use of armed force, in particular if it is used
against abjects and means constituting conditions of normal life, can be conducive to "inflicting on
the group conditions of life" bringing about "its physical destruction" (Genocide Convention,
Article Il).
Judge Kreéa goes on to say that 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 serions argument. For the spiral ofsuch aline of thinking may easily come---------· ---·--~-
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to a point when, having in mind that military power is aftdr ali comprised of people, even mass
killing of civilians can be claimed to constitute sornebfoprecautionary measure that should
prevent the maintenance or, in case of mobilization, in~re oamsietary power of a State.
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Judge Kreéa also points out that, in the incidental pro:ceedings the Court cannat and should
not concern itself with the definitive qualification of the interit to impose upon the group conditions
in which the survival of the group is threatenedHavind 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 ofextensive bombing, there is an objective rbfbringing about conditions in which
the survival of the group is threatened. ;
Judge K.reéafinds that the stance of the Courtre~ juisdctirn of te Court ratione
temporis is higbly questionable for two basic reasons. Firstl):',for reasons of a general nature to do
with the jurisprudence of the Court in this particular matter,:on the one band, and with the nature
of the proceedings for the indication of provisionmeas~re os he other and, secondly, for
reasons of a specifie nature deriving from circumstances of the case in band. As far as jurisdiction
of the Court is concemed, it seems incontestable that a liberal approach towards the temporal
element of the Court's jurisdiction in the indication of provis'ional measures has become apparent.
It is understandable that the proceeding for the indicationovisional measures is surely not
designed for the purpose of the final and defmitive est1blishment of the jurisdiction of the Court.
The determinant "prima facie" itself implies that what is i:pvolved is not definitely established
jurisdiction, but the jurisdiction deriving or supposed to be normal!y deriving from a relevant legal
fact which is defi.ned the "title of jurisdiction". Itbeosaid that the "title of jurisdiction" îs .
sufficient per se to constitute prima facie jurisdiction ex9ept in the case of the absen.ce of
jurisdict•on on the merits is manifest (Fisheries Jurisd1ction cases).
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Judge Kreéa disagrees with the stance of the Court' regarding the additional ground of
jurisdiction (Article 4 of the 1930 Treaty), since he finds that tbree essential conditions necessary
to qualify the additional ground as admissible are metthis particular case:
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that the Applicant makes it clear titintends to proceed upon that basis;
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that the result ofinvoking additional grounds is ~formo the dispute broughtbefore the
Court by the Application into another dispute which is different in charaandr;
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~ that additional grounds afford a basis on which the jurisdiction of the Court to entertain the
Application might be prima facie established. 1
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At the same time he points out that even if the documein:which the Applicant pointed to the
Treaty of 1930 as additional grounds ofjurisdiction were declared "inadmissible", the Court could
not have ignored the fact that the Treaty exists.. In that case! the Court could have differentiated
between the.document as such and the Treaty of 1930, pers a~a.basis of jurisdiction.
- The Court rejects the request for the indication of provisional measures submitted by Yugoslavia, but remains seised of the case
Legality of Use of Force (Serbia and Montenegro v. Belgium) - The Court rejects the request for the indication of provisional measures submitted by Yugoslavia, but remains seised of the case