Summary of the Order of 2 June 1999

Summaries of Judgments, AdviNot an official document of the Internationa
l Court of Justice

CASE CONCERNING LEGALITY OF USE OF FORCE (YUGOSLAVIA v. UNITED
STATES OF AMERICA) (PROVISIONAL MEASURES)

Order of 2 June 1999

In .an Order issued in the .case concerning Legality of
Use,of.~orce(Yugoslavia v. United States of America), the
~o&t rejected by twelve votes to three the request for the
indicationof provisional measures submittedby the Federal BackgroundirlJbr1ation
Republicof Yugoslavia(FRY).
On 29 April 1999 Yugoslavia filed an Application
1n its Order, the Court, having found that it manifestly institutingproceedings againstthe United Statesof America
lacked jurisdiction to entertain the case, decided to dismiss"for violation of the obligation not to use force", accusing
it. It ordered by twelve votes to three that the case be that State of bombing Yugoslav territory "together with
remo~edfromthe List. other Member States of NATO". On the same day, it
The Court was composed as follows: Vice-President submitted a request for the indication of provisional
weeramantry, ActingPresident;President Schwebel;Judges
measures, asking the Court to order the United States of
Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, America to "cease immediately its acts of use of force" and
Fleischhauer, Koroma, Vereshchetin, I-Iiggins, Parra- to "refrain from any act of threat or use of force" againstthe
Aranguren, Kooijmans; Judge ad hoc Kreca; Registrar FRY.
Valencia-Ospina. As a basis for the jurisdiction of the Court, Yugoslavia
invokedArticle IX of the Conventionon the Preventionand
Punishment of the Crime of Genocide, adopted by the

United Nations General Assembly on 9 December 1948,as
The full text of the operative paragraph of the Order well as Article 38, paragraph 5, of the Rules of Court.
reads as follows: Article IX of the Genocide Convention provides that
disl~utesbetween the contracting parties relating to the
"34. For these reasons, interpretation, application or fulfilment of the Convention
THE COURT, shall be submitted to the International Court of Justice. As
(1) By twelve votes to three, to Article 38, paragraph, of the Rules of Court, it provides

Rejects the request for the indication of provisional that when a State files an application against another State
measures submitted by the Federal Republic of which has not accepted the jurisdiction of the Court, the
Yugoslaviaon 29 April 1999; applicationis transmittedto that other State,but no action is
IN FAVOUR: Vice-President Weeramantry,Acting taken in the proceedings unless and until that State has
President; President Schwebel; Judges Oda, Bedjaoui, accepted the Court's jurisdiction for the purposes of the
Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, case.

Higgins, Pa~ra-Aranguren,Kooijmans;
AGAINST: Judges Shi, Vereshchetin; Judge ad hoc Reasoning of the Court
Kreca; In its Order, the Court first emphasizes that it is "deeply
(2) By twelvevotes to three,
concerned with the human tragedy, the loss of life, and the
Ordersthat the case beremoved from the List. enormous sufferingin Kosovowhich form the background"
IN FAVOUR: Vice-PresidentWeeramantry, Acting of the dispute and "with the continuing loss of life and
President; President Schwebel; Judges Oda, Bedjaoui, huinan sufferingin allparts of Yugoslavia".It declaresitself
Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, "profoundlyconcernedwith the use offorce in Yugoslavia",
Koroma,Higgins,Kooijmans; which "under the present circumstances ...raises very
serious issues of international law". While being "mindful
AGAINST: Judges Vereshchetin, Parra-Aranguren; of the purposes and principles of the UnitedNations Charter
Judge ad hoc Kreca."
and of its own responsibilities in the maintenance of peace
and security under the Charter and [its] Statute", the Court
"deems it necessary to emphasize that all parties before it
must act in conformity with their obligations under the
Judges Shi, Koroma and Vereshchetin appended United Nations Charter and other rules of internationallaw,
declarations to the Court's Order. Judges Oda and Parra- includinghumanitarianlaw".
Aranguren appended separate opinions. Judge ad hoc Kreca
appendeda dissentingopinion. The Court thenpoints out that it "does not automatically
have jurisdiction over legal disputes between States" and
that "one of the fundamentalprinciples of its Statute is that
it cannot decide a dispute between States without the consent of those Statesto itsjurisdiction". It cannot indicate Nevertheless, he is of the opinion that, being confronted
provisional measures without its jurisdiction in the case with a situation of great urgency arising from the use of
being established priina facie. hrce in and against Yugoslavia, and upon receipt of the
requests by the Applicant for the indication of provisional
Concerning Article IX of the Genocide Convention, the measures, the Court ought to have issued a general
Court states that it is not disputed that both Yugoslavia and
theUnited Statesof America are parties to that Convention, statementappealingto the Parties to act in compliancewith
but that when the United States ratified the Convention on their obligations under the United Nations Charter aiid all
25 November 1988, it inade a reservation. That reservation other rules of internationallaw.relevantto the situation.'and
provides that with reference to Article IX, beforc any at least not to aggravate or extend their dispute, regardless
of what might be the Court's coiiclusion on pri~ilafacie
dispute to which the United States is a party may be ji~risdictionpending itsfinaldecision. ..a
submitted to tlie jurisdiction of the Court, "the specific
consent of tlie United States is required in each case". Nothing in the Statute or Rules of Court prohibi&.the
FIowever,in this case, the United Stateshas indicatedthat it Clourtfrom so acting. Also, given tlieresponsibilities of the
had not given specific consent and that it would not do so. Clourtwithin the general framework for the niaintenanct!of
Since the Genocide Convention does not prohibit peace and security under the Charter, and under the Statute
reservations and since Yugoslavia did not object to the as an integralpart of the Charter,to issuesuch a statemehiis

reservation inade by the United States, the Court considers within the implied powers of the Court in the exercise of its
that Article IX manifestly does not coiistitute a basis of judicial functions.Obviously,the Court has failedto take.an
jurisdiction in the case, even primafacie. opportunityto make its due coiitributionto the maintenance
As tclArticle 38, paragraph 5, of the Rules of C:ourt,the of peace and securitywhen that is mostneeded. .,

Court stresses that, in the absence of consent by the United Moreover, in spite of the request of Yugoslavia that'the
States,it cannotexercisejurisdiction in the case, even prima Clourtexercise its powers under Article 75, paragraph 1,.of
facie. the Rules of Court to decide proprio lnottl Yugoslavia's
The Court concludes that it "manifestly lacks rt:questto indicateprovisional measures, the Court failed to
jurisdiction to entertain Yugos1:avia'sApplication" and that exercise that power, incontrast to its decision to make use
of that power in the recent LaGraiid case (Germany w tlie
"it cann.ot therefore indicate any provisional ineasure United States of America) in a situation not as urgent as,in
whatsoever". It adds that "within a system of consensual
jurisdiction. to maintain on the General List a case upon the present case.
which it appears certain that the Court will not be able to For these reasons, Judge Shi felt conipelled to vote
adjudicate on the merits would most assuredly not againstoperativeparagraph(1) of the six Orders.
contributeto the sound administrationofjustice".

The Court finally observes that "there is a hntlanlental
distinctionbetween the questionof the acceptanceby a State
OF the Court's jurisdictionand t:hecompatibilityof particular In his declaration Judge Koroma observed that these
acts with international law". 'The fornler requires consent; were perhaps the most serious cases that have ever come
the latter question can only be reached whenthe Court deals before the Court for provisional measures. He stated that
ju~risprudentiallysuch riieasures were designed to prevent
with the merits after having established its jurisdiction and violence, the use of force, to safeguard international peace
having heard full legal arguinents by both parties." It arid security as well as serving as an impoi.tantpart of the
emphasizes that "whether or not States acc.ept the
jurisdiction of the Court, they remain in any event dispute settlement process under the Charter of the United
responsible for acts attributable to them that violate Nations. In his view the indication of such measures
internationallaw, includinghumanitarianlaw" and that"any therefore represents one of the most important functions of
disputes relating to the legality ofsi~chacts are required to the Court.
But the granting of such a relief, he stressed, could only
be resolved by peaceful means, the choice of' which, be done in accordancewith the Statute of the Court. In this
pursuant to Article 33 of the Charter, is left to the parties".
In this context,"the parties should takecarenot to aggravate regard, and in the light of the jurisprudence of the Court,
or extend:the dispute".The Court reafl-irmsthat "when such where prima facie jurisdiction is absent or other
a dispute gives rise to a threat to the peace, breach of the circulnstances predominate. the Court will not grant the
peace or act of aggression, the Security Council haisspecial request forprovisionalmeasures.
Nevertheless, he considered the Court, being the
responsitlilitiesunderChapterVII of the Charter".
principal judicial organ of the United Nations, whose
Declaratioii ofJudge Sl~i primary raison d'&tre remains the preservation of
international peace and security, to be under a positive
Judge Shi agrees with the majority that in the cases of obligation to contribute to the maintenance of international
Yugoslavia against France, Geirmany,Italy and thr: United peace and security and to provide a judicial framework for
Kingdoin there is no prima facie jurisdiction, and in the the resolution of a legal conflict, especially one which not
cases of Yugoslavia against Spain and the United Statesnot
or~lythreatens international peace and security but also
even prima facie jurisdiction, for the indication of involves enormous human suffering and contiiluing loss of
provisional measuresrequested bythe Applicant.life. He had thereforejoined with the other Members of the measures by theFederal Republic of Yugoslavia against ten
Court in calling for the peaceful resolution of this conflict respondent States.While favouringthe decisionof the Court

pursuant to Article 33 of the Charter, and in urging the to remove the case from the General List of the Court in the
Parties not to aggravate or extend the dispute and to respect cases of Spain and the United States, Judge Oda voted
international law, including .humanitarian law and the against the decision in the other eight cases in which the
human rights of all the citizensof Yugoslavia. Court ordered that it "[r]eserves the subsequent procedure
for further decision", because he believes that those eight
Declaration ofJudge Vereshchetin cases should also be removed at this stage from the General
List of the Court.
The extraordinary circumstances in which Yugoslavia
made itsrequest for interim measures of protection imposed Judge Oda considers that the Federal Republic of
a need to react immediately. The Court should have Yugoslavia is not a Member of the UnitedNations and thus
promptly expressed its profound concern over the unfolding not a party to the Statute of the International Court of
human misery, loss of life and serious violations of Justice. The Applicationspresented by the FederalRepublic
international law which by the time of the request were of Yugoslavia should therefore be declared inadmissiblefor
already a matter of public knowledge. It is unbecoming for
this reason alone and should be removed froin the General
the principal judicial organ of the United Nations, whose List of the Court.
very raison d'etre is the peaceful resolution of international He nevertheless then goes on to discuss whether, if the
disputes, to maintain silence in such a situation. Even if Federal Republic of Yugoslavia were to be considered a
ultimatelythe Court may cometo the conclusionthat, due to party to the Statute, it could have brought the present
constraints in its Statute, it cannot indicate fully fledged
provisional measures in accordance with Article 41 of the Applications on the basis of certain legal instruments.After
Statutein relation to one or another of the respondentStates, having examined the meaning of (i) the optional clause of
the Court's Statute, (ii) the background to the 1930 and
the Court is inherently empowered, at the very least, 1931 instruments with Belgium and the Netherlands,
immediatelyto call upon the Parties neither to aggravatenor respectively, and (iii) the 1948 Genocide Convention, he
to extend the conflict and to act in accordance with their reaches the conclusion that none of these instruments grant
obligations under the Charter of the United Nations. This the Courtjurisdiction in any of the ten Applications.
power flows from its responsibility for the safeguarding of
international law and from major considerations of public Judge Oda agrees with the Court that, as it has no basis
order. Such an authoritative appeal by the "World Court", of jurisdiction, it must reject the requests for the indication
of provisional measures in all ten cases. However, he
which would alsobe consistentwith Article 41 of its Statute corisiders that, the Court having decided that it has no
and Article 74, paragraph 4, and Article 75, paragraph 1,of jurisdiction to entertain the cases, notenprima facie, that
its Rules, could have a sobering effect on the parties this can only mean that it has no jurisdiction whatsoever in
involvedin the military conflict,unprecedentedin European
histoiy sincethe end of the Second WorldWar. any of the cases. It follows, in Judge Oda's view,that not
The Court was urged to uphold the rule of law in the only in the cases of Spain and the United States, in which
the Court states that it manifestly lacksjurisdiction, but in
context of large-scale gross violations of international law, all the other cases, the Applications should be dismissed at
including of the Charter of the United Nations. Instead of this stage, given that the Court has found that there is not
acting expeditiously and, if necessary,proprio motzl,in its even a prima faciebasis ofjurisdiction.
capacity as "the principal guardian of internationallaw", the
majority of the Court, more than one month after the Judge Oda also points out that, while the Court makes a
requests were made, rejected them in a sweeping way in distinctionbetween the Applications, even though they deal
virtually with the same subject matter, this distinction,
relation to all the cases brought before the Court, including which came about simply because of the different positions
those where the prima facie jurisdiction of the Court could which individual States happened to take towards the
have been clearly established. Moreover, this decision has various instruments that are to be applied concerning the
been taken in a situation in which deliberate intensification
of bombardment of the most heavily populated areas is Court's jurisdiction, willlead to differingresults concerning
causing unabated loss of life among non-combatants and the future proceedings in each of the cases. In Judge Oda's
physical and mental harm to the population in all parts of view this is an illogical situation, which supports his
contention that all ten cases should be dismissed in their
Yugoslavia. entiretyat this stage.
For the foregoing reasons, Judge Vereshchetin cannot
concur with the inaction of the Court in this matter,
although he concedes that in some of the cases instituted by Separate opinion ofJudge Parra-Arangtlren
the Applicant the basis of the Court's jurisdiction, at this
stage of the proceedings,is open to doubt, and in relation to Judge Parra-Aranguren recalls that Article 79 of the
Ru.les of Court prescribes that any objection by the
Spain andthe United Statesis non-existent. Respondentto thejurisdiction of the Court shall be made in
writing within the time limit fixed for the delivery of the
Separate opinion of Judge Oda Counter-Memorial. Such preliminary objection shall be
Judge Oda supports the decision of the Court in decided as provided by paragraph 7 of the said Article 79.
dismissing the requests for the indication of provisional The Court has no discretionaly powers to depart from therules established by Article 79; and the present proceedings Yugoslavia and its national and ethnic groups have been
have not yet reached the stage when the Respondent may subjected for more than two months now to continued
submit preliminary objections. Therefore, in his opinion, attacks of a very strong, highly organized air aimada of the
when deciding upon a request for provisional measures the most powerful States of.the world. At the same time, the
Court can neither make its final decision onjl~risdictionnor arsenal used in the attacks on Yugoslavia contains also
weapons whoseeffectshave no limitationseither in spaceor
order the removalof the case fromthe Court's List.
in time such as depleted uranium whichcause far-reaching
Dissentiizg opinion ofJudge Kreca and irreparable damagec to the health of the whole
population. . .
In his dissenting opinion Judge Kreca points out the Judge Kreca points out that the first and the secoild of
followingrelevant issues: "understandings" lodgedby the United States to.Article I1
Judge Krecafinds that none of the equalizationfunctions
of -theinstitution of judge ad hoc have been met in this are actually reservations incompatible with the object and
purpose of the Genocide Convention. Namely,' at least
particular case. The letter and spirit of Article 31,paragraph Articles 11,I11and IV of the GenocideConventionrepresent
2, of the Statute of the Court, applied to this particularcase, ius cogetzs. The norms of ills cogens are of an overriding
imply the right of Yugoslavia, as the applicant State, to character; thus, they make null and void any act; be it
choose as many judges ad hoc to sit on the Bench as is unilateral, bilateral or multilateral, which is not in
necessary to equalize the position of applicant Stateand that accordance with them. Such a logical conclusion based on
of the respondent States which have judges of their
nationality on the Bench and which share the same interest. the peremptory or absolutely binding nature of izrscogerls
norms. expressing in the normative sphere the f~~ndan~ental
Ztt concreto, the inhere:nt right to equalization in the values of the internationalcommunityas awhole, have been
coniposition of the Bench, as an expression of a confirmed in the North Sen ContiilentulShelf cases. The
fundamental rule of equality of parties, means that the only possible way of excluding nullity effects in regard to
Federal Republic of Yugoslavia should have the right to the United States' reservationto ArticleIX of the Genocide
choose five judges ad hoc, since even five out of ten Convention,may lie in the interpretationthat nullity affects
respondent States (United States, the United Kingdom,
only "understandings" and thatit has no legal consequences
France, Germany, and the:Netherlands) have their national for the reservation itself. But such an interpretation would
judges sittingon the Bench. run counter to the fundamental rule of inseparability of the
Atthe sametime, accordingto coherentjurisprudence of acts conflicting with the norm belonging to cor-14s iuris
the Court, none of the respondent States were entitled to cogentis expressedin Article 44, paragraph 5, of the Vienna
appoint a judge ad hoc (Territorial Jtirisci'ictionof the Conventionon the Lawof Treaties.
International Corntttissior:~of the River Otler; Custoitl~
Judge Kreca is of the opinion that the extensive use of
Rkgimebetween GermanyandAustria). armed force, in particular if it is used against objects and
'Thereis no need to say that the above-mentionedissues means constituting conditions of normal life, can be
are of upmost specific weight in view of the fact that conducive to "inflicting on the group conditions of life"
obviously the meaning of such issues is not restricted to the bringing about "its physical destruction" (Genocide
procedure, but that it may have a far-reaching concrete Convention,Article 11).

meaning. Judge Kreca goes on to say that it can be argued that
.Judge Kreca finds that in the recent practice of the such acts are in the function of degrading the military
Cou.rt,in particular that it1which individuals were directly capacity of the Federal Republic ofYirgoslavia.But such an
affected, a high standard of humanitarian concern in the explanation can hardly be regarded as a serious argument.
proceedings for the indicationof interim measureshas been For the spiralof such a line of thinkingmay easily come to a
formed, a standard which commanded sufficient inherent point when, having in mind that military power is after all

strength to brush aside some relevant, both procedural and comprised of people, even mass killing of civilians can be
material, rules governing the institution of provisional claimed to constitute some sort of precautioilary measure
measures (e-rampli causa, the LaGrund case). Thus, that should prevent the maintenance or. in case of
humanitarian considerations, independently from the norms n~obilization,the increaseof militarypower of a State.
of international law regulating human rights and liberties, Judge Kreca also points out that, in the incidental
havl:, in a way, gained autonomous legal significance;they
have transcended the moral and philanthropil: sphere, and proceedings the Court cannot and should not concern itself
with the definitivequalificationof the intent to impose upon
enteredthe sphereof law. the group conditions in which the survival of the group is
In the case at hand, it seemsthat "humanitarian concern" threatened. Having in mind the purpose of provisional
has lost the acquired autonomous legal position. The fact measures, it can be said that at this stage of the proceedings
needs to be stressed in view of the special circumstancesof it is sufficient to establish that, in the conditioils of
this case. Unlike the recent practice of' the Court, extensive bombing, there is an objective risk of bringing

"huinanitarian concern"has as its objectthe fate of an entire about conditions in which the survival of the group is
nation, in the literal sense. The Federal Republic of threatened.