Separate Opinion of Judge Shahabuddeen

SEPARATE OPINION OF JUDGE SHAHABUDDEEN

1 agree with the Court in reaffirming, and in effect emphasizing, the
continued applicability of its previous Order to the deteriorating human
situation in Bosnia-Herzegovina. In support, 1give below my reasoning
on some of the issueswhich, in myview, merit the exercise of the right to
speak separately under Article 57of the Statute of the Court.

ForumProrogatum

As to paragraph 34 of the Order, the consensual basis of the Court's
jurisdiction requires no emphasis. Forumprorogatumjurisdiction is no
exception.Theargument that Yugoslavia accepted thejurisdiction of the
Court beyond the scope ofArticle IX ofthe GenocideConvention of 1948
is based on the fact that, in its written observations of 1 April 1993on
Bosnia-Herzegovina's first request for provisionalmeasures, Yugoslavia
stated that it "recommends that the Court ... order the application of"
certain other provisionalmeasures. But, in paragraph 5of the same writ-
ten observations, Yugoslavia asked the Courtto reject the last five of the
sixprovisionalmeasures then sought by Bosnia-Herzegovina

"taking into account that these measures are outside Article IX ofthe
Convention on the Prevention and hnishment of the Crime of
Genocide and that therefore the Court is not competent to decide
upon them".

Also, inparagraph 6of that document Yugoslavia stated

"that itoes not accept the competence ofthe Court in anyrequest of
theApplicant whichis outside the Convention onthe Prevention and
hnishment of the Crime of Genocide. This is without prejudice to
thefinal decision ofthe Yugoslav Government to be party to the dis-
pute submitted by the 'Republic of Bosnia and Herzegovina'."Again, at the hearing on Bosnia-Herzegovina's first request for provi-
sional measures, on 2 April 1993,the acting Co-Agent for Yugoslavia

stated :

"The Federal Republic of Yugoslavia does not consent to any
extension of the jurisdiction of the Court beyond what is strictly
stipulated in the [Genocide] Convention itself." (CR 93/13, p. 16,
2 April 1993,afternoon, Professor Shabtai Rosenne.)

Havingregard to these clearstatements on the basicjurisdictional posi-
tion taken by Yugoslavia,the question whicharises isone of construction
ofYugoslavia'sownrequest forprovisionalmeasures of 1April1993 inso
far as jurisdictionis concerned. In the light of those statements, two of
which were set out in the same document requesting provisional mea-
sures,itisdifficult to interpret therequest as intended byYugoslaviaas an
offer toexpandthe jurisdiction ofthe Court; itseemsmore reasonable to
understand the requestas intended to be considered only onthe basis that
the provisional measures which it sought were considered by Yugoslavia
(whetherrightly or wrongly)to be incidentally pertinent to genocide pro-

ceedings brought under Article IX of the Genocide Convention, assum-
ing that the Convention was in force between the Parties. Since the
qiestion is one of consent, it isYugoslavia'sintention which matters, not
the correctness ofitsviewasto the relevance ofitsrequest tothe subject of
genocide. It seemsunlikely that the measureswhichitsought were under-
stood by Bosnia-Herzegovina as intended by Yugoslavia to raise issues
outside of the scope of Article IX of the Genocide Convention. Bosnia-
Herzegovina did not then seekto raise a question offontmprorogatumon
the basis of the measures so sought by Yugoslavia; on the view which it
now advances,it should havebeen in its interest todo so in order to repel
Yugoslavia'spersistent objection that jurisdiction did not exist outside of
that conferred by that provision.

The question in the Anglo-Iranian Oil Co. case really turned on the
intention with which Iran had filed its objections, other than its prelimi-
nary objection to jurisdiction. Its intention was that they were to be con-
sidered only if itsbasic objection tojurisdiction failed; accordingly,they
could not be interpreted as implying acceptance of the very thing which
was being consistently objected to (I.C.J. Reports 1952, pp. 113-114).
Yugoslavia's objection to jurisdiction outside of Article IX of the Geno-
cide Convention isitsbasic position. That objection,being clear and con-
sistently pursued, could not reasonably be supposed to be intended by
Yugoslavia to be neutralized by something else contained in the very
document advancing the objection - at any rate, not in the absence of
language manifesting so contradictory an intention with unequivocalclarity. Thus, from the point of viewof intention, 1am not persuaded that
Yugoslavia's request for provisional measures can be treated differently
from Iran's objections.

In the Cor&Channelcase, PreliminaryObjection,the Court noted that
Albania had by letter accepted "in precise terms 'the jurisdiction of the
Court for this case"' (I.C.J.Reports 1947-1948,p. 27).Thisbeing so, the
Court was able to regard the letter as constituting a "voluntary and indis-
putableacceptance of the Court's jurisdiction" (ibid.;emphasis added).
Theneed for clarity can scarcelybe lessimperative where, as in this case,
there is no statement accepting jurisdiction "in precise terms". Yugo-
slavia'sconduct cannot, in my opinion, be characterized as implying an
indisputableacceptance of the Court's jurisdiction in excess of that con-
ferred by Article IX ofthe Genocide Convention of 1948.Theoverriding
requirement of clear proof of consent sufficiently explains Fitzmaurice's
conclusion that "[i]nactual fact the Court seems to have adopted an atti-

tude of considerable caution and conservatism on the subject of proro-
gatedjurisdiction", usefulthough the concept is(SirGerald Fitzmaurice,
me Law and Procedureof theInternationalCourt,1986,Vol. II, p. 511).

ZnterimJudgment

In paragraph 19ofitswritten observations of9August 1993on Bosnia-
Herzegovina's second request for provisional measures, Yugoslavia
pleaded :

"Some of the provisional measures, like the one requested under
No. 3[relatingto annexation or incorporation],have the character of
ajudgment. Theyareintended to legallyresolvethe subject-matter of
the dispute. Disputes are settled withjudgments, not by provisional
measures. (Factoryat Chorzbw,P.C.Z.J,SeriesA, No.12,p. 10.)"

On its own terms, that submission was not addressed to al1 of the
measuressought by Bosnia-Herzegovina.Assuming,however, that Yugo-
slavia is in fact invoking the interim judgment doctrine of the Factoryat
Chorzow case in relation to Bosnia-Herzegovina'srequest for provisional
measures to restraingenocide, 1shouldthink thatthe limitsofthedoctrine
wereclearlydemonstrated ifitseffectwereto put the Court inthe position
of a powerless bystander at the possiblecommission of that offence. The
Court's case-law shows that that cannot be the true result of the doctrine
(see NuclearTests (Australiav. France),ZnterimProtection,I.C.J. Reports
1973,p. 99 ;NuclearTests (NewZealand v. France),ZnterimProtection,
I.C.J.Reports 1973,p. 135; and UnitedStates Diplomaticand Consular
Staffin Tehran,ProvisionaM l easures,I.C.J.Reports1979,p. 16,para. 28).In domestic systemsthe proposition that an interlocutoryinjunction can
in no circumstancescover the same ground as the main remedy does not
always prevaill.

The idea of a provisional measure of protection which may have the
sameeffectasthe mainremedy isconceptuallydistinctfrom the idea ofan
interimjudgment. Theobject ofthe former isthe protection oftherightin
issuepending the final adjudication ofthe claim; the object ofthe latter is

to give to the plaintiff interim relief by way of advance payment on
account of a liability which is admitted or reasonably clear but not yet
precisely quantified. Provisions for interim payment exist in some legal
systems2.Bycontrast, as theCourt pointed out in the Factoryat Chorzdw
case,arequest which isreally for reliefbyway ofinterimjudgment is"not
covered bythe terms ofthe provisions ofthe Statute and Rules. .." ofthe
Court (P.C.I.J., SeriesA, No. 12,p. 10).

In that case, Germany did use some of the language associated with
provisional measures. It is clear, however, that it was really seeking an
interimjudgment in the sensementioned above.Thiswasillustrated byits
opening premise "that the principle of compensation is recognized and
that onlythe maximumsumtobepaid bythe Polish Government isstillin
doubt ..."(ibid.,p. 6).That wasthe essentialbasisonwhich it was asking

for an Order requiring Poland to "pay to the German Government, as a
provisionalmeasure, the sum ofthirtymillions ofReichsmarks within one
month from the date of the Order sought" (ibid.,p. 10).The request was
rightly refused, the Court simplyhaving no such power. Here, provided
that a measure istrulyconservatory of the rights in contest pending judg-
ment, the possibility that itmay produce the same effect asthe main relief
sought (though a discretionary consideration) does not put it out of the
power conferred on the Court by Article 41 ofthe Statute to indicate pro-
visional measures (seeDr. E.Dumbauld, InterimMeasures ofprotection in
International Controversies, 1932,pp. 163-164,and the generaldiscussion
in Jerzy Sztucki, Interim Measures in the Hague Court: An Attempt at a
Scrutiny, 1983,pp. 93ff.).

' See,inEnglishlaw,Halsbury'sLawsofEngland,4thed.,pp.537-538,para.953,and
Woodfordv. Smith,[1970]1Al1ER 1091n. and[1970]1WLR806. '
See,forexample,thepositionin Englishlawasset outin ne Supreme CourtPrac-
tice1993,London,1992,Vol. 1,Order29/9 ff. MediaMaterial

Some criticism was offered by Yugoslavia in so far as the means of
proof tendered by Bosnia-Herzegovina included press, radio and tele-
vision statements and reports. Are these admissible and, if so, how far?

The Court is of course"bound by the relevant provisions of its Statute
and itsRulesrelatingtothe systemofevidence"(MilitalyandParamilitaly
ActivitiesinandagainstNicaragua(Nicaraguv a. UnitedStatesofAmerica),
I.C.J.Reports1986,p. 39,para. 59).Butthose provisions have to do with
time-limitsand othermatters designed "to guaranteethe sound adminis-
tration ofjustice, whilerespectingthe equality ofthe parties"(ibid.).They
do notbear onthecategories ofmaterial admissibleas evidence,oron the
principles by which evidenceis assessedby the Court.

Asregards these,there are no technical rules,such asthose which exist
in most domesticsystems(SouthWestAfrica,SecondPhase,I.C.J.Reports

1966,p. 430,Judge Jessup, dissenting opinion; and BarcelonaTraction,
Light and Power Company, Limited, SecondPhase,I.C.J. Reports 1970,
p. 98,para. 58,Judge SirGerald Fitzmaurice, separate opinion, and ibid.,
p.215,para. 97,JudgeJessup, separate opinion).Referring tothe common
law "best evidence" rule, Judge Sir Gerald Fitzmaurice pointedly
obsemed that "[i]nternationaltribunals arenottied by such firm rules ...,
many of which are not appropriate to litigation between governments"
(ibid.,p. 98,para. 58).

In UnitedStates Diplomaticand Consular Staffin Tehran,the Court
said :

"The essential facts of the present case are, for the most part,
matters of public knowledgewhich have receivedextensive coverage
in the world press and in radio and televisionbroadcasts from Iran
and other countries." (I.C.J.Reports1980,p. 9,para. 12.)

TheCourt alsonoted that ithadbeenstated onbehalf ofthe United States
of America that the latter "has had to rely on newspaper,radio and tele-
vision reports for a number of the facts stated in the Memorial .. ."
(I.C.J.Reports1980,p. 10,para. 12;and see I.C.J.Pleadings,UnitedStates
Diplomaticand ConsularStaff inTehran,pp. 192ff. and pp. 329ff.).

The Court clearly considered that material. The material had been
communicated to the Government of Iran "without having evoked from
that Government any denial or questioning of the facts alleged .. ."
(I.C.J.Reports1980,p. 10,para. 13).Butit seemsto methat the absence of
denial byIran ofthe factsallegedwentto weight,and notto admissibility.True, as the Court later said, even where such material meets high
standards of objectivity,theCourt regards it

"not as evidence capable of proving facts,but as material which can
nevertheless contribute, in some circumstances, to corroborating
the existence of a fact, i.e., as illustrative material additional to
other sources of evidence" (Military and Paramilitary Activitiesin
and against Nicaragua (Nicaragua v. United States of America),
I.C.J. Reports 1986,p. 40, para. 62; and ibid.,Judge Schwebel, dis-
sentingopinion, p. 324).

That limited use does not make the material any the lessadmissible,but it
is a consideration which should be carefullynoted.

If media material is admissible at the merits stage, as in the
UnitedStatesDiplomaticandConsularStaffin Tehrancase,itshouldbeno
less admissibleat the provisional measures stage, as in this case. In fact,
media material was also presented to the Court at the provisional mea-
suresstagein that case(I.C.J.Pleadings,UnitedStatesDiplomaticandCon-
sularStaffin Tehran,p.45,and p. 67,Appendix C,and I.C.J.Reports1979,
p. 10,para. 7).It iswellknown that in some domestic systemsthe mles of
evidenceare relaxed in proceedings for interlocutoryinjunctions soasto
let in hearsaymaterial not otherwiseadmissible '.

In this case, the need for reliance on media material is clear.The Co-
Agent forthe Applicant, Professor Boyle,spokemore than once of diffi-
culties in communicating with Sarajevo; no reason appeared to doubt
those assertions. Even Yugoslavia presented certain statements in the
form of press reports (see Yugoslavia's written observations, 9 August
1993,Annexes 1,IVand V).

In my opinion, subject to questions of weight and to the limitation
referredto above,the media material presented by Bosnia-Herzegovina is
admissible. However, because ofthe legalconsiderationsexplainedinthe
Order, the reaction of the Court to its request can go no further than
therein set out.

Thus, in English law, evidence as to information and belief, if the sources and
grounds are stated, is receivable on interlocutory applications. SeeCourt
Practice1993,Vol. 1,Order 29/1/11 and Order 41/5/1-2. II. YUGOSLAVI A 'SUESTFOR PROVISIONM ALEASURES

TheExtentofPermissibleUseoftheEvidence

Amajorinitialquestion, ifasomewhatdelicateone,concerns the extent
to whichthe Court cantake account ofthe supporting evidenceinjudging
whether the circumstancesrequire an indication of the measuressought.
Theproblem here isthat, while its reasonablyclearfromprevious cases
thatthe Court doesmakeuseofthe evidence,itislessclearin whatwayor
to whatextentitdoesso.True,theCourt doesnot atthisstagemake defin-
itive findings of fact, but beyond this there is little that can be said with
assurance. If ites not makedefinitivefindings on the evidence,does it
makeprovisional ones? Thelack of elucidation is, 1think, attributable to
someapprehension that anyusemade bythe Court ofthe evidencemight
lead to unwarranted inferences of prejudgment. And yet the evidence is

presented bythe Partiesto beused bythe Courtand isused byit.It seems
to me that apprehensions of unwarranted inferences of prejudgment are
lesssubstantialhan the dangerderivingfromuncertainty asto the wayin
which,or the extentto which,the Court makes use ofthe material.

Thesettledprinciple thattheCourt cannot atthisstagemakedefinitive
findings onthe meritsisrecalledin paragraph 48ofthe Order.ToSaythat
the Court can make such findings, subject to subsequent alteration or
amendment inthefinal judgment, isineffectto put the Court atthe merits

stagein the position of a court of appeal,ingon review ofits ownpre-
viousjudgment. The obvious unacceptability of that position does not,
however,have the consequencethattheCourt must atthis stage mechani-
callyindicate measures so long as some supporting material is before it
and regardlessofitsevidentialquality.Acourt whichdoesthat mayclaim
the virtue of avoidingl1risk of prejudgment,but it is a virtue bought at
the price ofplacingboth parties on an artificial basis of evidential equal-
ity in circumstances in which the evidence on one side may be patently
weak. A preliminary appraisal of the quality of the evidenceavoidspay-
ment of that price; in so far as it may be thought tove some risk of
prejudgment, the craft of the judge accustoms him to make such an
appraisal for the limitedurposes of interlocutory proceedings without
incurring a risk ofprejudgment ofthe merits.

Provisionalmeasures (whether legallybinding or not) are expected to
be implemented and can be immediatelyproductive of important prac-

38tical consequences. They are not indicated by the Court unthinkingly.
Under Article 41,paragraph 1,of its Statute, the Court has power to indi-
cateprovisionalmeasures "if it considers that circumstancesso require".
The Court cannot know what are the circumstanceswithout having to
consider the evidenceproduced in proof of the circumstances.This the
Court must do ifJudge Anzilotti was correct in speaking of "the possibil-
ity of the right claimed... and the possibility of the danger to which that
right was exposed" (Polish Agrarian Refonn and German Minority,
P.C.I.J.,SeriesA/B, No.58,p. 181).Ifthat isthe test, as1respectfullythink
it is, then the Court is called upon at this stageto make a decision asto
whether there is on the evidence a possibility of the rights claimed by
Yugoslavia and a possibility of danger to those rights; it cannot do that
without consideringthe quality of the material before it.

This conclusion accords with the position taken by Yugoslavia in its
written observations of 1 April 1993 on Bosnia-Herzegovina's first
request for provisional measures, in paragraph 5 of which it submitted
that "[tlheassertionson the basis of which the Court isrequested to grant
these provisional measures are not true, i.e. they are inconsistent with
facts". That submission necessarily implied that the Court, even at the
interlocutory stage, can competently consider questions of credibility.

Asto thestandard applicable,somehelp may be had from Dumbauld,
who wrote :

"In view of the need for rapidity and the provisionalnature of the
order, absolutely convincing proof, such as would be necessary in
forming the Court's opinion on final judgment, is not necessary.

TheCourt's decision mustbebased ontheevidencebeforeit, how-
ever, and not upon mere speculation. Substantial credibilityrather
than formally impregnable accuracy should be sought."
(Dr. E. Dumbauld, ZnterimMeasures ofProtectionin International
Controversies,1932,p. 161 .)

Thus, although it is not necessary to produce "absolutely convincing
proof', "substantialcredibility" isrequired.That, 1wouldthink, isthe test
to be applied inmaking an evaluation ofthe quality ofthe material before
the Court. To the making of such an evaluation 1accordingly pass.

TheMethodsby WhichtheYugoslavianMaterialHasBeenPrepared

Each Party disclaimsresponsibility for genocide and accuses the other
of it. So, fromthis point of view,there is a certain symmetry in positions.

39But the symmetry is broken by an important difference concerning the
position taken by each sideinrelation tothe conflict.Bosnia-Herzegovina
is of course involved in the conflict; Yugoslavia asserts that it is not. It
states that there is a civilwar in Bosnia-Herzegovina, that Yugoslavia

"is no belligerentParty, that it has no soldiers in the territory of the
'Republic of Bosnia and Herzegovina',that it supports with armsno
side inthe conflict and that it does not abet inwhatever waythe com-
mission ofcrimescited inthe Application [madeby Bosnia-Herzego-
vina on 20March 19931"(letterfromthe Federal Ministry for Foreign
Affairs of the Federal Republic of Yugoslavia to the Registrar,
1April 1993;see also statement by Mr. Zivkovicin CR 93/13, p. 7,
2 April 1993,afternoon).

On the contrary, says Yugoslavia, ithas offered refuge to a large number
of Muslims from Bosnia-Herzegovina and has extended humanitarian
help to Bosnia-Herzegovina in several ways (written observations of
Yugoslavia on Bosnia-Herzegovina's second request for provisional
measures, 9 August 1993,para. 11).
In effect, Yugoslavia's own position is that it has adopted an even-
handed approach of non-involvement in the military situation in Bosnia-

Herzegovina.Whether that is factually so or not isnot now the point; the
point now isthatthat isthe position adopted byYugoslavia.Theadoption
of a position of militarynon-involvement isrelevant to the waythe Court
approaches the allegations made by Yugoslavia; it has a bearing on the
quality of the allegations.

Themain elements ofthe casepresented byYugoslaviawereassembled
by the "Yugoslav StateCommission for War Crimes and Genocide". The
case so assembled by the YugoslavCommission alleges that genocide is
beingcommitted, but that itis al1being done by Muslimsagainst Serbs;no
hint isgivenofgenocidebeing committed by Serbsagainst Muslims.That
isnot surprising seeing that, inthe first instance, themandate ofthe Com-
mission did not extend so far, its report being entitled "Memorandum on
War Crimes and Crimes of Genocide in Eastern Bosnia (Communes of
Bratunac, Skelani and Srebrenica)Committed against the Serbian Popu-
lation from April 1992to April 1993".But page 79 of the Memorandum
states:

"A good part of the documentation on the killings, organized
ambushes, massacred persons, destroyed property, maltreatment in
prisons, the looting and the burning isinthe possession ofthecompe-
tent authorities :police stations, health centres and other communal
establishments,as well asthe command and units ofthe Army ofthe

Republic of Srpska."362 APPLICATIONOFGENOCIDE CONVENTION (SEP. OPSHAHABUDDEEN)

Professor Boyle corredly made the point that not only does this show
thatthe YugoslavStateCommissionforWarCrimesand Genocide relied
on documentation provided by "the command and units of the Army of
the Republic of Srpska", but that it also suggeststhe existence of close
relationsbetweenthe Yugoslavauthorities andthe militaryauthorities of
the BosnianSerbs.Itwouldbe correctforthe Court to refrain atthis stage
fromactingon material ofthat kind,not simplybecause itispartisan, asit
is,but because itispartisan material presented by a Party whichasserts a
position of militarynon-partisanship.

Yugoslavia'sAssertion ofNon-Znvolvemenitn the Military Operations of
BosnianSerbs
It is necessarynow to return to Yugoslavia'sassertion of non-involve-
ment in, or non-support for, Serbian military activityin Bosnia.A state-

ment made on behalf of the Govemment of Serbia (part of Yugoslavia)
after the Court's firstrder was issued shows that that Government, at
greatcostto itself,hasin factbeen "unreservedlyand generouslyhelping"
Serbsinwhatitregardsas"a justbattleforfreedom and the equalityofthe
Serbian people [which]isbeing conducted in the Serb Republic", i.e., in
theterritory ofBosnia-Herzegovina(seetheCommuniquéissuedafterthe
Sessionof the Govemment of the Republic of Serbia, set out in Bosnia-
Herzegovina's second requestof 27July 1993,at pp. 43-44).A statement
issued on behalf of the Federal Government of Yugoslavia is to similar
effect (Federal Government Communiqué, setout in Bosnia-Herzego-
vina'ssecondrequestof27July 1993,atpp. 44-45).It wasin evidencealso
that, in a statement made on 11May 1993,President Slobodan Milosevic
of Serbiasaid :

"Inthepast twoyears,the Republicof Serbia - by assistingSerbs
outsideSerbia - has forcedits economyto makemassiveeffortsand
itscitizenstomakesubstantial sacrifices.Theseeffortsandthese sac-
rificesarenowreachingthe limitsof endurance.Mostof theassistance
wassent topeopleandjïghters inBosnia-Herzegovinab ,ut a substan-

tial amount ofaid wasgivento the 500,000refugeesin Serbia.Atthe
sametime,because ofitssolidaritywithand assistancetothe Serbsin
Bosnia-Herzegovina,Serbiaissubjectedtobrutalinternational sanc-
tions. Today therecan be no comparison between us and any other
country in the world, orveryfewcountries, in terms ofthe economic
and generaldifficultiesweface. Clearly,wewereawarewe wouldface
thesedifjïcultieswhendecidingtoprovideassistancetoSerbswhowere
at war.363 APPLICATION OF GENOCIDECONVENTION (SEP. P.SHAHABUDDEEN)

Now conditions for peace in Bosniahavebeen created. Following
a year of war and long-term peace negotiations, the Serbs have
gainedtheir freedom andhaveregainedthe equality taken fromthem
whenthe warstarted. Most oftheterritoryintheformerBosnia-Herze-
govinabelongsnowtoSerbprovincesT . hisisasufficientreason to halt
the war, and to remove further misunderstandingsthrough negotia-

tions and by peaceful means.

Serbiahaslentagreat,greatdealofassistancetotheSerbsinBosnia.
Owingtothatassistancetheyhave achievedmost of whattheywanted."
(BBC transcript, as reproduced in the second request by Bosnia-
Herzegovina,pp. 47-48.)

From this and other material it is, at this stage, at least arguable that
Yugoslaviahas in factbeen givingmilitaryand other forms of assistance
to the war effort of the Bosnian Serbs; that this assistancebegan before
and continued unintempted by the Court's Order of 8 April 1993;that

the objectofthe assistancewasto enable BosnianSerbsto obtainterritory
in Bosnia-Herzegovina; and that consequently President Milosevic was
accepting responsibility for the "ethnic cleansing" which was central to
the methods by whichthe territory was acquired.

Yugoslavia's assertion of non-involvement in the conflict is open to
serious question.That question mustintum causethe Courtto hesitate at
thisstageto act onthe material presented byitin support ofitsallegations
of genocidebeing committed by Bosnia-Herzegovina.

Yugoslavia'sSilenceon the QuestionWhether BosnianSerbs HaveBeen
Committing Genocide

If,as1consider,theevidencepoints to Yugoslaviabeinginfact suppor-
tiveofthe Serbianmilitaryeffort in Bosnia-Herzegovina,theCourt might
at this stage reasonably expect Yugoslavia to be in a position tonow

whether the Serbianauthorities in Bosnia-Herzegovina have or have not
been committinggenocide. Yugoslavianeither affirms nor denies this. It
says:

"The FR of Yugoslaviahas not directed, supported or influenced
anybody to exercisethe crime of genocide or any act described by
Article III of the Genocide Convention against the Muslim popu-
lation of Bosnia and Herzegovina or against any other national,
ethnical or religious group." (Written observations of Yugoslavia
of 9August 1993,para. 11.)364 APPLICATIONOF GENOCIDE CONVENTION (SEP .P.SHAHABUDDEEN)

A pleading position of that kind leaves open the possibility that geno-
cide isbeing committed by Serbsagainst Muslims,that Yugoslavia isin a
position to know this and does know this, but that Yugoslavia is merely
taking the position that such genocide isbeingcommittedwithout itsown
support. It is,no doubt, permissible to take upuch a position at the mer-
its,the issuebeing one asto Yugoslavia'sresponsibility. But 1should have
thought that a less sparing approach was appropriate where Yugoslavia
was itself requesting provisional measures for genocide allegedly being
committed by Muslims against Serbs. Bosnia-Henegovina for its part

deniesthat genocide isbeingcommittedagainst Serbs.That isdisputed by
Yugoslavia, but itisat least a clearstatement ofposition. Thepoint, in the
case of Yugoslavia, is not that itnies that genocide is being committed
by Serbs,butthat itneither admits nor denies it,though in a position todo
one or the other. That, in my opinion, is a circumstance to be carefully
weighedbythe Court whenexercisingitsdiscretion asto whetheritwould
accede to Yugoslavia's request for provisional measures in favour of
Serbs.

Yugoslavia'sRequesftor ProvisionalMeasuresHasBeenMade Only
becauseofBosnia-Herzegovina 'Second Request

Then, as to the timeliness of Yugoslavia's allegations. The fact that
Yugoslavia'srequest ismadeinresponse to Bosnia-Herzegovina'ssecond
request is not necessarily a point against the former. But the question
whicharises isthis would Yugoslavia'srequesthavebeen madeat al1had
it not been for Bosnia-Herzegovina's? 1 cannot feel that it would have
been. The basic material on which Yugoslavia relies relates to the period
April 1992to April 1993and had been collected by the Yugoslav State
Commission for WarCrimes and Genocide overaperiod endingin April
1993. Assuming that this material (whetherin whole or in part) could not
be presented to the Court at the previous hearing, it is difficult toe-
ciate why itisbeingpresented to the Court onlysome four months after it

was assembled and then only in response to a second request by Bosnia-
Herzegovina. If genocide is in fact being committed against Serbs, the
need for remedial action always remains, any delay in approaching the
Court notwithstanding; but any such delay is, in my view, relevant in
appreciating Yugoslavia'sownconfidencein the quality ofthe allegations
nowbeing advanced by itbefore ajudicial body.

In my opinion, without raising any question of urgency as a juridical
element in its own right, one may reasonably take the view that Yugo-
slavia'srequesthasbeen made onlybecause of Bosnia-Herzegovina'sand

43 has notbeen presented withsufficienttimeliness to suggestthat the Court
would, at this stage, be correct in acting upon the supportingterial for
the purpose of indicating the provisional measures which Yugoslavia
seeks.

Yugoslavia'sAttitudetotheCourt'sOrderof8April1993

Account has also to be taken of Yugoslavia's disposition to the provi-
sional measures indicated by the Court in its Order of 8 April 1993.It is
Bosnia-Henegovina's complaint that Yugoslaviahas at no stagesought to
implement these measures. The fact that the Court is not at this point

engagedin adjudicating on the merits of the case does not mean that the
Court cannot make a definitive finding on the particular question
whether the measures indicated byithavebeenimplemented. In myopin-
ion, the evidence warrants a finding of non-implementation against
Yugoslavia.
The question of non-implementation naturally leads into the question
whether provisional measures are legally binding. The nearest that the
Court has come to answeringthis question was in 1986,when it said :

"When the Court findsthatthesituation requires that measures of
thiskind should be taken, it is incumbent on each party to take the
Court's indications seriously into account, and not to direct itsn-
duct solelyby reference to what it believes to be its rights." (Military
and Paramilitary Activitiesin and against Nicaragua (Nicaragua
v. UnitedStates of America),I.C.J.Reports 1986,p. 144,para. 289.)

That statement, and the reference to it in paragraph 58 of today's Order,
stopped short, in its careful formulation, of saying that provisional
measures are binding. Indeed, it could bear the interpretation that the
measures themselves are not binding, a party merely having a duty to
take account of the Court's indication ofthem.

The question, if it remains open, dates back to the founding of the
Permanent Court of International Justice (P.C.I.J., Advisory Committee
of Jurists, Procès-verbaux of the Proceedings of the Committee,
June16th- July24th,1920,p. 735).The main outlines ofthe argument as to
whether provisional measures are recommendatory or legally binding
appeared in the 1931records ofthe rule-makingproceedings ofthe Court
(Acts and Documentsconcemingthe Organization ofthe Court,P.C.I.J.,
Series D, SecondAddendumto No. 2, pp. 181-200).1 do not propose to
summarize or analyse the conflictingcurrents ofthoughtrunning through

the considerable literature which hassince grown up around the subject.
One exchange of opinions may however be mentioned. Adverting in 1935to the drafting of Article 41, paragraph 1, of the
Statute ofthe Permanent Court of International Justice, Henri Rolin per-
ceptively distinguished the question of enforceabilityfrom the question
of the binding character of provisional measures, observing :

"le motif alléguépour expliquer l'omission du mot 'ordonne'
permet de toucher du doigt la fragilité des considérations qui ont
retenu le Comitéde juristes: pas de moyen d'exécution,donc pas
d'ordre ! Comme si le mêmeargument n'aurait pas pu être invoqué
contre le caractèreobligatoiredessentences aufond, comme sidans
l'ordre desjuridictions nationales aussi le décrètement desmesures
provisoires n'appartient pas au judiciaire, le contrôle de leur exécu-
tion a l'exécutif!"(Henri A. Rolin, "Force obligatoire des ordon-
nances de la Cour permanente de Justice internationale en matière

de mesures conservatoires", in Mélangesofferts à Ernest Mahaim,
1935,Vol. 2,p. 286).
In 1952,speaking ofthe terms of Article 41,paragraph 1,ofthe Statute of
the present Court in the light of the Charter, he remarked :

"Ces termespourraient paraître impliquer un pouvoir de décision
et une obligation pour les parties de s'yconformer.
Telle ne paraît pourtant pas être laportée de l'article 94 de la
Charte quin'attribue d'effetsobligatoiresqu'aux arrêtsrenduspar la
Cour." (Annuaire de l'Institut de droit international, 1954,Vol. 45,1,
p. 487.)

For these reasons, he proposed an amendment to Article 41 in order to
make it clear that provisionalmeasures were binding (ibid.,p. 43 1).

For his part, HerschLauterpacht in the following year observed :

"1amfullyin agreement withthe suggestion - thoughnotperhaps
with the reasoning - of M. Rolin with regard to Article 41 of the
Statute relating to provisional measures. Without expressing an
opinion on the question whether the indication of provisional mea-
sures is merely in the nature of a recommendation 1am of the view
that ifthe latter interpretation is correctthere isroom for anamend-
ment of the Statute in this respect. It is not necessarilyinconsistent
with the effectiveness of the administration of international justice
that the Court should have no power to decree, with binding effect,
provisionalmeasuresto be taken bythe parties. But 1believethat itis
not part of the function of the Courtto recommendmeasures which
the parties arefree to accept orto reject." (Zbid.,pp. 535-536.)

Thus, on one view, it might well be tolerable that, having regard to the
specialframeworkin which it functions, an international court, unlike a
municipal court, should not have any power to decree provisional
measures with binding effect. What was lessacceptable wasthat itshouldhave "power", but "power" merely to recommend measures to the
parties whichthey werefreeto accept or to reject.

The suggested solution by way of amendment does not, of course,
removethe duty ofthe Courtto pronounce meanwhile uponthe question
ofinterpretation, in aproper case,astowhetherprovisionalmeasures are
binding. A doubt which may present itself is whether an answer to the
questions now before theCourt requires a determination of that particu-
lar issueofinterpretation. Theneed fora determination ofthe issuemight
arise if, for example, the question were whether a party was entitled to
reparation for non-implementation by the other party of provisional
measures,orto reparation for implementation byitwherethe main claim
againstit later failseitherforwant ofjurisdiction or onthe merits. Butitis

not the caseof Bosnia-Herzegovinathat anybreach by Yugoslaviaofthe
provisionalmeasuresindicated on 8April1993 willexposeYugoslaviato
some specific legalpenalty or giveto Bosnia-Herzegovinasome specific
legalright relevantto these proceedings.

This doubt may be regarded as somewhat narrowly based; the better
viewmay wellbe that the question of interpretation does arise. 1do not,
however, propose to express an opinion on the question because it
appears to methat an alternative approach is possible.
The material issue iswhether Yugoslavia has in fact implemented the
measuresas the Court expected it would,whether or not they are legally
binding. A distinction may be drawn between the indication ofmeasures
and the measuresindicated. The question relating to the "indication" is
whether ithas the effectof ajudicial decision which attaches a legalobli-
gation to a party. Thequestionrelating tothe "measures" iswhetherthey
represent a judicial finding as to what needs to be done to preserve the
rights incontest. In myopinion, evenifthe indication is not legallybind-

ing,themeasurespossessthe character ofajudicial finding asto whatwas
required to preserve those rights pendente lite,that finding having been
made after due hearing bythe Court Sittingasacourt oflawin exerciseof
a specific power conferred by law. It followsthat any non-implementa-
tion,evenifnotinbreach ofalegalobligation,represents aninconsistency
withthat judicial finding.

Now,the Court hasnopower to penalize suchan inconsistency ;but, in
my view, the inconsistency is something to be taken into account by
it in evaluating the quality of the evidencepresented by the non-imple-
menting party in support of a request for provisional measures to
preserve substantially the same rights which the Court's original
Order was in the first instance intended to protect. Unless the Court,
which has an undoubted discretion in deciding whether it would grant a
request, can take account of a non-implementation in that way, thereis little point in the provision in Rule 78 of the Rules of Court to the
effect that

"[tlheCourt may requestinformation from the parties on any matter
connected with the implementation of any provisional measures it
has indicated" (discussed in GenevièveGuyomar, Commentairedu
règlementde laCourinternationad l eJustice,983,pp. 495-496).

This point having been reached, it is useful to consider the following
view expressed by Dumbauld :

"When a refusa1to furnishinformation orto cany out provisional
measures is put on record, apparently a presumption arises which
takesthe place ofdirect evidenceinthe sensethat itlegitimates acon-
clusion derived from the fact in question by reasonable inference."
(Dr. E. Dumbauld, Interim Measuresof Protectionin International
Controversies, 1932,p. 161 ;footnotes omitted.)

Yugoslavia, not having implemented the provisional measures indi-
cated bythe Court, now seeksprovisionalmeasures ofitsown. 1do not go
so far asto suggestthatthe non-implementation necessarily or automati-
cally debars Yugoslavia from making its request (as well it might in a
corresponding case in some domesticjurisdictions); but it is, in my view,

something which legitimates the conclusionthat, in al1the circumstances;
it would not be correct for the Court, at this stage,to act on theaterial
presented byYugoslavia insupport ofthe particular measures itrequests.

III. CONCLUSION

It isdifficultto think of anymeasures which the Court could both use-
fully and competentlyindicate in addition to those already set out in its
previous Order. Onthe other hand, such hasbeen the deterioration inthe
situation since the making of the previous Order, that the Court could
hardly do lessthan cal1forthe immediate and effectiveimplementation of
theprovisionalmeasures therein indicated.Judge SirHerschLauterpacht
was not thinking ofthe Court when he said :

"Admittedly,there is as a mle no difficultyencountered by doing
nothing or little,but this ishardly a reasonable standard by which to
gaugethe fulfilment ofthetask ofthe supervisingauthority." (Admis-
sibility of Hearings of Petitionerbsy the Committeeon South West
Africa, I.C.J.Reports1956,p. 53.)The Court is not of course in the position of the supervisov authority
there referred to, but that scarcelyuffices to denude the remark of rele-
vance to such competence as belongs to the Court. Nor should it; for, to
transpose words once used by Judge Read from their peaceful context to

the unthinkableinhumanities beingunleashedin Bosnia-Herzegovina :

"It takes one bold act to transform theunthinkable intothe think-
able, and a second or third to make it a normal course." (Cited in
Georg Schwarzenberger, International Law as Applied by Zntema-
tional Courtsand Tribunals,Vol. IV,p. 21.)

(Signed) Mohamed SHAHABUDDEEN.