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CR 99/30 (traduction)

CR 99130(translation)
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Mercredi 12 maà 15h45 ;

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Wednesday 12 May at 3.45 p.m.
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()6 Le VICE-PRESIDENT, faisant fonction de président: La Cour entrendra l'argumentationde

l'It a~niel'affaire qui oppose cet àtla Yougoslavie. La présentationdes conclusions de

l'Italiecommencera dans quelques minutes. J'invitejuge ad hoc de l'Itàlprendre place sur

le siège. J'invite l'agentde l'Italie, M. Leanza, à prendre la parole.

Mr. LEANZA: Mr. President, Members of the Court.

The Italian Republic, which I have the great honour to represent case, would like ta

place a few further observations beforefollowing the reply given this morning by the Federal

Republic of Yugoslavia.

With your permission,1should liketogive Mr. Luigi Daniele, Professorof International Law

at theUniversity of Trieste, the occasion to present his comments as counsel for the Italian

Government. Mr. Daniele will emphasize that Article IX ofthe Genocide Convention ismanifesdy

inapplicable to the present case, and therefore that prima facie this distinguished Court does not

have jurisdictionAt the end of his statement, he will reiterate the submissions of the Italian

Govemment. 1therefore ask you to be kind enough to cali on Mr. Daniele, and 1thank you for

your attention.

Le VICE-PRESIDENT, faisant fonction de président: Je vous remercie. Je donne la parole

à Monsieur Daniele.

Mr. DANIELE: Mr. President, Members of the Court. •

1 have the privilege to address a few additional comments to you on behalf of the Italian

Govemment inresponse to sorneofthe arguments presented this moming by counsel forthe Federal

Republic of Yugoslavia.

First of ali, the Italian Government wishes to stress that far and away the most dominant

element in the Yugoslav Application isthe question of the legality ofthe use of force by the NATO

States. It is nevertheless indisputable that prima facie the Court bas ntodeal with that

question, however centralt maybe,since there is no jurisdictional t~xisten ncteeen the

Italian Republic and the Federal Republic of Yugoslavia on which, ratione materiae, the Court's1· r.

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O7 jurisdiction could be based. The Federal Republic ofYugoslavia is nevertheless seeking to impose

jurisdiction on the Court by invoking Article IX of the Genocide Convention in regard to the entire

dispute.

In the opinion of the ltalian Govemment, not only can Article IX in no event found the

Court's jurisdictionn regard to the whole of the Yugoslav Application, but also it is inapplicable

to those aspects of the Application in which the Federal Republic of Yugoslavia appears, albeit

implicitly, to refer to the Genocide Convention.lt is perfectJy clear that, in the present case, there

can be no question of accusing the NATO Member States of genocide. Manifestly, bath the

subjective element and the objective element of the crime of genocide are Iacking. The action taken

by the NATO Member States is directed at the territory of the Federal Republic ofYugoslavia and

not at its people. As the Secretary-General, Mr. Solana, said on 23 March last, NATO has no

recriminations to lay against the Yugoslav people. Theugoslav population as a whole is of course

affected by that action, since it takes place in the territory in which it lives. But that, Mr. President,

cannat alter the nature ofthings, which is that the action by NATO is directed against the Federal

Republic of Yugoslavia and not against its population, and even Jess,1would point out, against a

specifie national, racial, ethnical religions group forming part of that population.

As far as the subjective element is concemed, 1shall confine myself to observing that even

counsel for Yugoslavia was not so bold this moming asto maintain that it exists in the present case.

The total absence of the elements which, according to Article Il of the Convention, constitute and

characterize the crimeof genocide totally precludes any notion that the Court has before it a dispute

falling within the tennsof Article IX of that Convention. The Court cannat accept that a State,

simply by invoking an alleged violationof the Genocide Convention, has established the existence

of a dispute under Article IX of the Convention, when the facts charged have no relationship with

that crime. Insuch circumstances, the indication of provisional measures onder Article 41 of the

Statute could itselfbe seen as endorsing the manifest abuse by the Federal Republic ofYugoslavia

of Article IX and of the jurisdiction of this distinguished Court.

08 1 should like to add, with your pertnission, a further remark regarding the object of the

Yugoslav request for provisional measures, namely the immediate cessation of ali action by NATO

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in Yugoslav territory. lt is clear that that abject is identical with the abject of one of the claims put

forward by Yugoslavia in its Application.

Were the Court to accede to the Yugoslav request, there is the danger that it would be

granting the applicant Staterthwith- that isto say, atthe conclusion ofwhat are by their nature

summary proceedings- something which only the judgmerrt on the merits could grant it. The

Court'sdecision would theo be so anticipatory as to make itpointless to pursue the case any further.

Mr. President, Members of the Court, 1should now like to remind you of the submissions

made by the Agent of the Italian Govemment yesterday:

May it please theCourt,

1. to arder that the case be removed from the General List pursuant to Article 38,

paragraph 5, of the Rules of Court;

2. in the alternative, to refuse the request for the indication of provisional measures filed by

the Federal Republicof Yugoslavia on 29 April 1999;

3. in any event, to refrain from indicating in respect ofthe ltalian Republic the provisional

measures specified in the Yugoslav request, or any other provisional measure.

Mr. President, Members of the Court, thank you for your kind attention.

LeVICE-PRESIDENT, faisant fonction deprésident: Jevous remercie. TheCourt will now

take an adjoumment for 15 minutes.

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L'audience est levéeà 15.55.