Separate Opinion of Judge Ajibola

SEPARATE OPINION OF JUDGE AJIBOLA

1 have voted in favour of the decision of the Court whereby it re-
affirmed the provisionalmeasuresindicated in paragraph 52of its Order
of 8April 1993,but 1equally have someobservations and amplifications
to makeonsomeaspects ofthe request whichare explained below,inview
of the apparently unique nature of the request, and theimportance of the
subject-matter to world peace and the development of the jurisprudence
of this Court, especially as it relates to procedural matters in1cases of
requests for the indication of provisionalmeasures.

On 27 July 1993,a request was filed by the Agent of Bosnia-Herzego-
vina inthis Court - which was,in fact, its second request forthe indica-
tion of provisional measures. The reasons for the filing of this second
request were giveninthe Agent's letter attached to the request.
Mr. Rodoljub Etinski, Agent for the Federal Republic of Yugoslavia
(Serbia and Montenegroyalso filed with the Registv a request for the

indication of provisionalmeasures dated9 August 1993.
It is not out of place to remind ourselves that the determinationof the
United Nations as stated in the Preamble of the Charter, is:
"to savesucceedinggenerationsfrom the scourgeofwar,which twicein
Ourlifetimehas broughtuntoldsorrowtomankind,and

to reaffirmfaithinfundamental humanrights,inthe dignityand worth
of thehuman person, in the equal rights of men and womenand of
nations largeand small,and

to establishconditions under whichjusticeand respect forthe obliga-
tionsarisingfrom treatiesand other sources of international law can
be maintained ..."(emphasisadded).

Theselaudable declarations ofthedetermination ofthe United Nations
directedtowardsthemaintenance ofpeace and securityinthe world can-
not be seenasmereverbiage,unrelated to afirmresolveto givethem effect
through its main organs likethe SecurityCouncil, the General Assembly,
and ofcourse,inthisparticular instance, the Court asitsprincipaljudicial organ,that isthus seisedofthe matterinhand. The FirstWorld Warended
with the establishment of the League of Nations, having as its judicial
organthe Permanent Court ofInternational Justice,both ofwhich ceased
to existat the end ofthe Second World War.

The pioneering Member States that met in San Francisco to draft the
United Nations Charter devoted a great deal of effort to ensuring that
peace, security,justice and the pacific settlement of disputes would be
ensured and thoroughly incorporated intothe Charter. Hence they spelt
out, in clear terms, some of their goals and aspirations to ensure the
supremacy of international law, peace, security and justice among al1
nations.

Members wereenjoined, as stated in the second part ofthe Preamble:

"to practice toleranceand livetogetherin peace with one another as
good neighbours, and

to unite Ourstrength to maintain international peace and security,
and
to ensure, by the acceptance of principles and the institution of
methods, that armedforce shall not be used, Savein the common
interest..." (emphasisadded).

It may perhaps be argued that the preambular part of the Charter is
non-justiciable,and that itwasin order to obviatethisproblem that many
of the declarations, determinations, aims and objectives of the Member
Stateswere encapsulated in the first paragraph of the first Article,thus :

"1. To maintain international peace and security,andto thatend :
to take effectivecollectivemeasures forthe prevention and removal
ofthreats to the peace, and forthe suppression of acts of aggression
orotherbreaches ofthepeace,andto bring about bypeaceful means,
and in conformity with the principles of justice and international
law, adjustment or settlement of international disputes or situations
which might lead to a breach ofthe peace."

1 have cited some of the provisions of the United Nations Charter
referred toabove, not without good reason and in order to highlight, for
the purposes ofmyargument,the yearnings and aspirations ofnations of
the world seekingfor peace at this crucial time through international law
and the pacific settlement of international disputes. It is forthese rea-
sonsthat 1welcomeand approve ofthe decisionofthe Court based onthe
provisions ofthe GenocideConvention. Forthe aforementioned reasons,
1 shall now proceed to touch on some pertinent aspects of Bosnia-392 APPLICATION OF GENOCIDE CONVENTION (SEP.OP.AJIBOLA)

Herzegovina's requestas well as the request of the Federal Republic of
Yugoslavia (Serbia and Montenegro) for the indication of provisional
measures.

3. UNIQUE NATURE OF THE REQUESTS

Intherecent historyoftheCourt, itcanbeseenthat therehasbeen only

one occasion on whichthe Court was calleduponto respond to a second
requestforprovisional measures.That wasinthe case concerning Military
and Paramilitary Activitiesin and against Nicaragua (Nicaragua v.
UnitedStatesofAmerica),when sucha request wasfiledinthe Registryof
the Courton 25June 1984.Nicaraguastated in itssecondrequest (pursu-
ant toparagraph 41(C)ofthe Order ofthe Court dated 10May 1984),that
it was occasioned by the alleged failure of the United States to comply
with the aforementioned Order ofthe Court, andthat the Court ought to
make a second order to secure compliance with the first one. As in the
present case,Nicaraguaannexedtotherequestfresh evidenceofbreaches
ofthe Court's Order.TheCourt didnotentertain the secondrequest, con-
sidering,as contained in the letter from the President of the Court dated
16July 1984,that Nicaraguashouldawaitthe outcome ofthe proceedings

on jurisdiction which were then pending before the Court. This episode
wasreferredto inparagraph 287ofthe Court's 1986Judgment. However,
the Court, in paragraph 288 of the same Judgment, re-emphasized,in
the light of its findings on the merits, theer that had been made on
10May 1984.

The other case that bears a resemblance to the one mentioned above
wastaken tothe SecurityCouncil. ThiswastheAnglo-Zranian OilCo.case
inwhichIran ignoredthe Order ofthe Court madeinJuly 1951.TheSecu-
ritvCouncildecided that the United Kingdom must awaitthe outcome of
the proceedings on jurisdiction that were currently pending before the

Court. Even though the Respondent in the present case has resemed its
right to file a preliminary objectionin relation to the jurisdiction of the
Court, thishasnotas yetbeen done andthere isno proceeding onjurisdic-
tionpendingbeforethe Courtas atthe moment;otherwise such an appli-
cation would perhaps have prevented the Court from entertaining this
new request from the Applicant. On the contrary, the Respondent also
filed its own request for an indication of provisional measures, as men-
tioned above.TheSecurityCouncil isalreadyfimly seisedofthisdispute
and there havebeen manyresolutionspassed onit,perhapsmore than any
other singlematter that has been treated by the Security Council. The
Security Council, by resolution 819 (1993)of 16April 1993took note of
the Order of the Court of 8April 1993and, in that resolution, reaffimed
its condemnationof al1"violations"of internationalhumanitarian law and"ethnic cleansing"in particular. Boththe Court and the SecurityCouncil
have taken steps,1believe,to stopthe ongoingactsofgenocidein Bosnia.

4. HAS THE FIRST ORDER OF THE COURT BEEN COMPLIEW DITH ?

Atthe Sittingofthe Court on 26August 1993,during the hearing ofthe

requests for the indication of provisional measures in this case, 1put a
question to both Parties that wasworded as follows :

"The Court, on the first request for an indication of provisional

measures presented to it by the Applicant in this case, issued on
8April 1993the following Order:

'THECOURT

Indicates,pending itsfinal decisionintheproceedingsinstituted
on 20 March 1993by the Republic of Bosnia and Herzegovina

against the Federal Republic of Yugoslavia (Serbia and Monte-
negro),thefollowingprovisionalmeasures :

A. (1) Unanimously,

The Govemment of the Federal Republic of Yugoslavia

(Serbiaand Montenegro) should immediately,in pursuance of
its undertaking in the Convention on the Prevention and Pun-

ishment oftheCrime ofGenocide of9December 1948,take al1
measures within itspower to prevent commissionofthe crime

ofgenocide ;

(2) By13votesto 1,

The Govemment of the Federal Republic of Yugoslavia
(Serbia and Montenegro) should in particular ensure that any

military, paramilitary or irregular armed units which may be
directed or supported by it, as well as any organizations and

persons which maybe subjectto its control, direction or influ-
ence, do not commit any acts of genocide, of conspiracy to

commit genocide, of direct and public incitement to commit
genocide, or of complicity in genocide, whether directed

against the Muslimpopulation of Bosnia and Herzegovina or

against any other national, ethnical, racial or religiousgroup;

... .... .... A.. .... ..... .... ..

B. Unanimously,

The Govemment of the Federal Republic of Yugoslavia

(Serbiaand Montenegro) and theGovemment ofthe Republic
of Bosnia and Herzegovina should not take any action and should ensure that no action is taken which may aggravate or

extend the existingdispute overthe prevention or punishment
ofthe crimeofgenocide,orrender itmoredifficult ofsolution.'

What steps have been taken by each Party to ensure compliance
withthis Order?"

Answershave been supplied byboth Parties,but 1am sony to Saythat
the answersdo not convincinglysuggestthat the measures relatingto acts
of genocide whichthe Court indicated in itsOrder as quoted abovehave
been complied withby either ofthe Parties.
If itan therefore be said that the first Order has not been complied
with, will the Court not be justified in refraining from issuing a second
such Order until the first set of measures has been implemented? What-
evermay be the controversy on the legal effect of anrder of the Court,
has it notthe powerto refuse making any further order or ordersuntilthe
first one has been complied with? Must the Court make orders in vain?

Doesitnot fa11withintheinherent power ofthe Courtto makean order or
reject an application apart frominvoking the provisions of Article 41 of
the Statute as well as its powers under Section D of the Rules of Court,
especially those contained in Articles 73,74, 75 and 76 of those Rules?
Can the Court not exercise its discretion as it deems fit, in relation to al1
matters ofthisnature ?Theseare someofthe questions that have engaged
mymind sincethe mostrecentrequestswerefiledinthisCourt.Returning
to my first question as to whether the Court has the power to refuse to
make any further order or orders until the first one is complied with, 1
think 1should qualifythat questionbyrestrictingsuchpower ofthe Court
to only similarrequeststo indicateprovisionalmeasures rationemateriae
and ratione personae. 1 do not have in mind such requests as were
presented to the Court in the Nicaragua case, where the Applicant was
seekingan order ofthe Court to the effect:

"That, until suchtime asthe United States ceasesand desistsfrom
al1activitiesthat do not comply with the Order of 10May 1984,the
facilitiesof the Court shallnot be available to the United Statesfor
the purpose ofrenderinga decisioninitsfavourinanyotherpending
or future case,and the United Statesshallnotbepermitted to invoke
theCourt's aidinany matter."(Z.C. Pleadings,MilitaryandParamil-

itaryActivitiesinand againstNicaragua(Nicaraguav. UnitedStatesof
America),Request of the Republic of Nicaragua concerning imple-
mentation ofthe Court's Order of 10May 1984dated 25June 1984.)
Withdue deferencethat wasgoingrathertoofar, and 1sharethe viewof
the Court as contained in theletter of 16July 1984(alreadyreferredto), 395 APPLICATION OF GENOCIDE CONVENTION (SEP.OP. AJIBOLA)

when it replied that it "considers that this somewhat unprecedented
request is difficult to contemplate"(letter of 6 July 1984from the Presi-
dent oftheCourttothe Agentof Nicaragua) and gavereasonswithwhich
1agree.Inmany domesticcourts, especiallyinthecommon lawcountries,
interlocutory applications are exclusivelyat the discretion of the court,
and in most caseswhenthe court is called upon to exercisesuch a discre-
tion (whichis a part of the inherent power of the court), "equity" plays a
very large role, and an applicant who "wants equity must do equity"
implying that that applicant "must come with clean hands". This means
that, ifanapplicant wantsthecourt to exerciseitsequitablediscretion on a
matter, he must first satisfythe court that the earlier order issued by the
courthasbeencomplied with, othenvisethecourt mayrefuseto makeany

further order.

Fitzmaurice expressed his doubt as to whether the jurisdiction of the
Court isinherentper se,and he feltthat the wholeissue is debatable asto
whetherthe Court's jurisdiction to indicateprovisional measures would
normally or automaticallyform part of itsinherentpowersas an interna-
tional tribunal in the absence of specificprovisionssuch as Article 41of
the Statute of the Court. However, he concluded his exposition by
expressingan ambivalentviewin the followingterms :

"On that occasion the present writer expressed the view that in
existingintemational conditions,the arguments against 'inherency'
would prevail in any test case. He neverthelessindicated his belief
that the argumentsfor are much weightier,and he seesno reason to
changethis conclusion." (Fitzmaurice, TheLawand Procedureofthe
International CourtofJustice,Vol.II, 1986,p. 774.)

However with regard to inherent powers under the Statute, he
expressedhis viewasfollows :

"Thejurisdiction to indicateinterim measures of protection is,so
far as the International Court is concemed, part of the incidental
jurisdiction ofthe Court,thecharacteristic ofwhichisthat itdoesnot
depend on anydirectconsent givenbytheparties to itsexercise,butis
an inherentpart ofthe standingpowersofthe Court under itsStatute.
Its exercise is therefore govemed, not by the consentof theparties
(exceptinaremote sense)butbythe relevantprovisionsofthe Statute
and ofthe Rules of Court." (Ibid., p.533;emphasisadded.)

One mayarguethat this isstillan inherentpowerderivedfromthe Sta-
tute and RulesofCourt.Perhaps itisimportantto notethat itsjurisdiction
isincidental,like al1otherincidental powersofotherinternational adjudi-396 APPLICATION OF GENOCIDE CONVENTION (SEP .P.AJIBOLA)

catingtribunals. Therefore,oncethe Court is seised of a case in which it
hasjurisdiction prima facie,al1ofitsincidental powers oughtnaturallyto
flowfrom that jurisdiction whetherstatutoryor otherwise,like any other
international tribunal, even though most of these powers, functions and
jurisdiction are providedforin the Statute and Rules of Court.

Thelearned author went evenfurther when he stated that :

"As has been shown above, the power of the Court to indicate
interim measures fallsintothe same categoryas its compétence dela
compétenceB . othare an exerciseofincidentaljurisdiction, necessary
inthe caseof compétencedelacompétenceto enablethe Court tofunc-
tion at all,and, inthe caseofthe powerto indicateinterimmeasures,
to prevent its decisionsfrom being stultified ...Yet it is established
lawthat this power ispart ofthe inherent powers of allinternational
tribunals, irrespectiveofwhether it has been expresslyconferred on
them or not." (Fitzmaurice, op.cit.,p. 542.)

This view of Sir Gerald Fitzmaurice was definitively affirmed in the
Nottebohmcase, where the Court clearly and positively claimed such an
incidentalpower when itpointed out that :

"Paragraph6 ofArticle36merelyadopted,inrespect oftheCourt,
a ruleconsistentlyacceptedbygeneralinternational lawinthe matter
of international arbitration. Sincethe Alabamacase,ithasbeen gen-
erallyrecognized,followingthe earlierprecedents,that, inthe absence
of any agreement to the contras., an international tribunal has the
right todecide as to its ownjurisdiction and has the power to inter-
pretforthis purpose the instruments whichgovernthatjurisdiction."
(Z.CJ.. Reports1953,p. 119.)

Twopossiblethesesmay,therefore,emergefromthe expressionquoted
above; sincethe issueofjurisdiction isanincidentalone - likethe power
oftheCourtto indicate provisionalmeasures - then itfollowsthat sucha
powershould likewisebea part oftheinherent powerofthe Court. Again,
since such power under international law is available to international
arbitraltribunals, afortiori it mustalsobeavailabletothe Court. Further-
more, going by the decision of the Court in the CorjiuChannelcase on
proceedingsindefault ofappearance,one may conclucdethat generally,in
matters of procedure, what is not specificallypreventedby the rules may
be applied by the Court (Rosenne, TheLawand Practiceof the Znterna-
tionalCourt, 1965,Vol.II, pp. 590-591,para. 244).There issupport forthe
viewthat :

"the failure of a Stateto comply with an interlocutory decision can
lead to the automatic imposition by the Court itself of a sanction against that State, and will only bring it disadvantag.. .since the
interlocutory decision in itself does not dispose of the substantive
rights ofthe parties" (Rosenne, op.citV.ol.1,pp. 124-125).

The discretionary power of the Court, even though statutory, flows
fromArticle 75 ofthe Rules of Court. Paragraph 1ofthe Articlemakes it
clear that propriomotu,the Court may at any time indicate provisional
measures if the circumstances of the case so dictate and that such
measures ought to be complied with by any or al1the parties involved
in the case. Paragraph 2 goes further to empower the Court to indicate
measures that are in whole or part different from those requested by the
parties, if in its discretionh measures ought to be taken or complied
with by the parties. This Article gives the Court a wider discretionary
power than does Article 41 of the Statute of the Court. It is an Article
which to a great extent allowsthe Court to function as it ought to and in
turn derivesits validityfromArticle 30,paragraph 1,ofthe Statute ofthe
Court which Statesthat :"The Court shallframe rules for carryingout its
functions. In particular, it shall laydownules of procedure."

Apart, therefore, from the discretionary and inherent powers of the
Court, these rule-making powers are necessary to enable the Court to
function as a Court and to ensure that orders issued by it are obeyed. 1
believe that the Court thus has the power statutorily and inherently to
ensure compliancewithwhateverinterlocutory directivesororders itmay
makeinany matter ofwhichitisseised.Ifthispowerwerenot availableto
the Courtor weredenied to it,an absurd situation mightoccur,especially
having regard to the provisions of Article 74,paragraph 3, whereby the
Court maypersistentlybe inundated withrequests for indications ofpro-
visional measures by the same parties, when in fact an earlier order has
not been complied with.

5. 1sTHE ORDER BINDING?

Thisquestion is difficult to answer. One would have expected such an
apparently simple question to be answered positively, since in interna-
tional arbitrations and cases heard by other adjudicating tribunalssuch
orders, like their awards, are final and binding. The controversy as to
whether an order ofthe Court hasbindingforce stemsfromthe wordingof
the text of Article 41 of the Statute and Article 94 of the Charter.
Sir Hersch Lauterpacht regrets this situation and suggests adequate
amendment. 1would refer to his discussion of effectiveness of the law,
when he said that : "This circumstanceillustrates to someextentthe difficulty and the
degree of artificiality surroundingthe subject of provisional meas-
ures - drawbacks which stem from the fact that according to the
wording and, perhaps, the intention ofthe Statute no legallybinding
force attaches to Orders issued under Article 41 of the Statute. The
latterstatement iscontroversial.However,that veryfactmaysuggest
the necessityofamendingthe Statutewithaviewto removingwhatis
either an ambiguity or, on the assumption that Orders under that
Article lack legalforce,a provision inappropriate to a legal instru-
ment." (Sir Hersch Lauterpacht, île Development of International
Law by the InternationalCourt,1958-1982,pp. 112-113; emphasis
added.)

What then is wrong with Article 41 ofthe Statute that makes it not
legallybinding? 1sany such deficiencyone of "omission" or "commis-
sion"? 1sthere reallyan ambiguitycontained therein? Howshould ithave
been worded? After all, this is the main vehicle whereby al1the requests

for an indication of provisionalmeasures of protection are being trans-
ported intotheportals ofjustice atthe PeacePalace.Onthefaceofthetext
ofthe Article,there isnothing that specificallyleadsoneto conclude that
it lacksbinding force.Thefirstparagraph reads thus:

"The Court shall have the power to indicate, if it considers that
circumstances so require, any provisional measures which ought to
be taken to preservethe respectiverights of either party."

If one looks into the jurisprudence of this Court, it will be seen that
there has been no categoricalpronouncement on this issue, but that on
19August 1929,in the FreeZonesof UpperSavoyand the District ofGex
case,the Permanent Court of InternationalJusticestatedthat, unlike the
finaljudgment qfthe Court, orders ofthe Court have no "binding force"
or "final effect" in the decision of any dispute. The relevant para-
graph reads as follows :

"and whereas, in contradistinction to judgments contemplated by
Article58ofthe Statute,towhichreferenceismadein Article2,para-
graph 1, of the Special Agreement, orders made by the Court,
althoughasageneral rulereadinopen Court,due noticehavingbeen
giventothe Agents,haveno 'binding'force(Article 59ofthe Statute)
or 'final' effect (Article 60 of the Statute) in deciding the dispute
brought by the Parties before the Court" (P.C.I.J.,SeriesA, No. 22,
p. 13).

Sincethen (about 64years ago),the issue of whetherthe indication of
provisional measures does or does not have legal binding forcehas con-
tinued to be in controversy. However,1think thatthe timehas comewhenthis Court shouldmakea
definitive pronouncement on this issue. After all, the principle of stare
decisisis not applicable in the Court. In fact a careful examination of
Article41, paragraph 1,will suggest that it is prima facie and patently
devoidofanyambiguity.Inthe plain and ordinarymeaning oftheformof
words employed,theuseofthewords"shall" and "power" isundoubtedly
mandatory and imperative,givingthe Court an indisputable prerogative
to indicate provisionalmeasures.Thephrase "if it considersthat circum-
stancessorequire" relates to the discretionaryexercise of such power,to
beused orapplied indeservingcases.Thereasonwhythepowerwasgiven
is clearlyapparentinthe laterpart ofthe Article; and that isto enable the

Courtto function as it should by preservingthe "rights" of either party.
Logicand common sensewould consideritridiculous and absurd forthe
Courtto be unable to preserve the rights of the parties pending the final
judgment.

If the Court is not sufficiently effective and tmly empowered to pre-
servethe statusquo,whatthen isthe essenceofcarryinglitigationthrough
to itsfinal conclusion,leadingto the givingofjudgment ?Suchan absurd-
itywouldbe like affirmingthat confidence isto be placed in therecord of
ajudgment and not in the judge - Absurdumest affinnare(rejudicata)
credendumessenonjudici. As pointed out earlier, Lauterpacht observed
that "according to the wording and, perhaps, the intention ofthe Statute
no legallybindingforceattaches to Orders". Inthe firstcase,1seenothing

wrongprima facieinthe wordingofthe Article.Itisclearon the faceofit,
becausethe Articleeven envisagesa situation ofpossiblestultification of
the function ofthe Court ifit cannot exercisesuch a power ofindication,
when it refers to "any provisional measures which oughtto be taken to
preserve the respective rights of either party". It is even clear from the
wording of the Article that there may be a situation in which any subse-
quent action of the Court will become illusory or an exercisein futility,
possiblylikethe caseinhand - orthe Nicaraguacase - ifsuchanindica-
tion for provisional measures cannot be givenimmediately to arrest that
ongoingsituation.

Arguendo,one may also ask what isthe point of givinga request for an

indication of provisionalmeasure urgent attention, a quick and immedi-
ate hearing and priority (in most cases leading to an order being made
withinoneortwo weeks),ifinspiteofal1theeffort putinto it,the resulting
order is to be considered not legally binding and ineffective? Note, for
example,the situation ofurgencyasdictated by Article74ofthe Rules of
Court which sounds like an application for habeascorpusinthe common
lawcountries. That Articlereads :400 APPLICATION OF GENOCIDE CONVENTION (SEP.OP. AJIBOLA)

"1. Arequestfortheindication ofprovisionalmeasuresshall have
priorityover al1other cases.
2. The Court, ifit is not Sittingwhen the request ismade,shallbe
convened forthwith for the purpose of proceeding to a decision on
the request as a matter of urgency."(Art. 74, paras. 1-2; emphasis
added.)

Thereisanother aspect ofthis matter which shouldbementioned here.
If itisagreed,and 1thinkthere isnodoubt about this,that thejurisdiction
to deal with a request forthe indication ofprovisionalmeasures ispart of
the incidentaljurisdiction ofthe Court, itan therefore safelybe asserted
that an incidental order forms a part of the outcome of the adjudicating
assignmentofthe Court whichisthefinal goalorthe whole.Ifthe "whole"
judgment isbinding,why then shoulditnotbethe samewiththat "part" of

the "whole"?
Concludingthis part of myopinion on whetherthe Order ofthe Court
isbinding ornot, 1believethere isnoreason whytheCourt's Order should
not be binding on the Parties; otherwise the Court would not be em-
powered to make such orders in accordance with the provisions of the
Statuteand RulesofCourt. The Court isempoweredto makeniles under
Article 30 ofthe Statute; thus by evokingthat Article, such orders made
under the Rulesareequallyvalidand binding.IftheCourt weretobe even
in the slightest doubt as to the force behindsuch power as is contained
in the Statute, it is submitted that al1the provisions in the Rules with
regardto requestsfor an indication ofprovisionalmeasurestogethercon-
ferupon it sufficient power to pronounce an order.

Ifanorder isnotbinding itisdifficultto seehowitcanbeenforced.This
difficultywasprominently highlightedinthe UnitedStatesDiplomaticand

ConsularStaff in Tehrancase (Order of 15December 1979,Z.C.J.Reports
1979,pp. 20-21,para. 47). In fact,this was the first important "test case"
sincethe adoption ofthe ViennaConvention on DiplomaticRelations of
1961and the ViennaConvention on ConsularRelations of 1963,between
two Membersofthe United Nations - the United States ofAmerica and
Iran.

Thiscasewasfiled inthe Court by wayofan Application bythe United
Statesof America on 29 November 1979againstthe Government of Iran
withregard to the disputeconcerningthe seizureand holding ofhostages
whoweremembersofthe United StatesEmbassyinTehran.Arequestfor
the indication of provisional measures was annexed to the Application401 APPLICATION OF GENOCIDE CONVENTION (SEP .P.MIBOLA)

and both the Application and the request were aimed at securing the
immediate release ofthe hostages. Eventhough the Government of Iran
wasnotified, itrefusedto participate in the proceedings,but merelysenta
telegram denyingthejurisdiction oftheCourt. However,the Court exer-

cised itspower and discretion - correctly,in myview - and proceeded
withthe hearing ofthe request bythe United StatesofAmerica.Fivepro-
visionalmeasureswereindicated in an Order in which Part A(containing
three measures)directed the Government of Iran to release the hostages,
giveback the Chancery and Consulates of the United States of America
which had been occupied,afford al1the diplomatic and consularperson-
nel of the United States of America the full protection, privileges and
immunitiesto whichtheywereentitledunder the aforementioned Vienna
Convention, and permit the hostages to leave Iran. The rest of the

measures arenot al1that relevantto mythesis here. The important point
was that the Islamic Republic of Iran refused to carry out al1or any
of the measures ordered by the Court. The Court has no machinery for
enforcement and relies only on the Security Council to ensure such
enforcement under Article94 ofthe Charter.

At this point, it is important to state the provision of Article 94 ofthe
Charter, which reads :

"1. Each Member of the United Nations undertakes to comply
with the decisionof the International Court of Justice in any caseto
which it is aparty.
2. If anyparty to a casefailsto performtheobligationsincumbent
upon it under ajudgmentrendered bythe Court,the other party may

haverecourseto the SecurityCouncil, whichmay,ifit deems neces-
sary,makerecommendations ordecideupon measurestobe taken to
giveeffectto thejudgment." (Emphasisadded.)
The consequential effect and problem created by this Article with

regard to justiciability and enforceability of orders for an indication of
provisional measures of protection on matterspending before the Court
are better perceivedfrom the plea of SirGladwyn Jebb when the United
Kingdomtook itscomplaintto the SecurityCouncil - presumably under
Article 94, paragraph 1 - in the Anglo-ZranianOil Co. case, which is
another classic example of difficulty with the enforcement of interim
measures of protection, as indicated by the Court. In this case, like the
later case concerning the UnitedStates Diplomaticand ConsularStaff in
Tehran, Iran refused to complywiththe Order oftheCourt. Butformally
and legitimately,1believe,the United Kingdompresenteditscomplaint to

the SecurityCouncil under Articles34and 35of the Charter ofthe United
Nations.

If1pause here fora while,itmaybe safeto arguethat evenifmatters of
thisnature - relatingto orders ofthe Court - cannotbe presented to the
SecurityCouncil under Article94,there isnothingtoprevent the affectedStatefrom taking itsmatter to the SecurityCouncil under Articles 34and
35oftheCharter, soas to ensure thatthe order of the Court isnot treated
lightly,eventhough, and most regrettably, that may alsoproveultimately
futileat times.Becausethe statement of SirGladwynmade mypoint very
adequately and directly,1feel1would do wellto quote himhereverbatim :

"the Council has special functions in relation to decisionsof the
Court, both under Article94,paragraph2, of theCharter,and under
Article41,paragraph2, of the Statue of the Court ... and this must

clearly implythatthe Councilhas thepowerto deal with matters aris-
ingout of such interimmeasures ...Now,it isestablished that a final
judgment of the Court is binding on the parties; that, indeed, is
expressly stated by Articles 59 and60 of theStatute and Article 94,
paragraph 1, of the Charter. But, clearly,there wouldbe no pointin
makingthefinaljjudgment]bindingifoneof theparties couldfrustrate
that decisioninadvanceby actionswhichwould renderthefinaljudg-
ment nugatory.It is,therefore,a necessaryconsequence,we suggest, of
the bindingnessofthefinaldecisionthattheinterimmeasuresintended
to preserveits effacy shouldequallybe binding."(United Nations,
OfficialRecords ofthe Security Council,559th meeting, 1 October
1951, WPV.559,p. 20; emphasisadded.)

Thisstatement ofSirGladwyn callsfor someexamination in viewofthe
difficulties surrounding matters arising out of indication of provisional
measures of protection by the Court. If by reference to Article 94, para-
graph 2, of the Charter, Sir Gladwyn was referring to the power of the
SecurityCouncil vis-à-visthe power of the Courtto indicate provisional
measures of protection in the form of an order, 1do have some reserva-
tions.Article 94,paragraph 2, deals only with the judgment and not inci-
dental orders or interlocutory matters. If the word judgment is meant to
include an order ofthis nature under discussion, 1must begto differ.Here
1take the viewthat those who drafted the Charter meant a final decision
ofthe Courtor perhaps a final judgment. Ifwethink ofthe word decision
as a generic term encompassing orders and judgments, then 1 think
Article 94, paragraph 1,is better referred to since that paragraph deals
with decisions.Butthere again, 1wishto observethatparagraph 1issome-
howweakand too generalbecausetheuse oftheword "undertake" tendsto
imply an appeal to the "moral obligation" of a State. A more imperative
word like "ought", "must", "shall" and "under obligation to" should per-
haps have been employed. What again puzzles me with the wording of
that section as finally adopted is the fact that the word "decision" was
used inparagraph 1and "judgment" used inparagraph 2.

It ismyviewthatthe word "decision" shouldpreferably havebeenused
inboth cases, otherwise itmayevenbe better to spellmattersout byinsert-403 APPLICATION OF GENOCIDE CONVENTION (SEP.OP.AJIBOLA)

ing,inboth provisions,the words"judgments ororders" whichwould ele-
gantlydemonstratethe desireto ensure that al1the decisions ofthe Court
areto becomplied with. Butas Ihavementionedearlier,the complaint of
the United Kingdom was brought under Articles34and 35,which to my
mind,impliedacautiousapproach. Timeconstraintswillnotpermit meto
deal anyfurther with Article94,paragraphs 1and 2,ofthe Charter, but it
is sufficientto state that it is not adequately or elegantlyworded to assist
the Court in ensuring due compliance with its orders under discussion.

Sir Gladwyn also referred to the binding force of the decision of the
Court under Articles 59 and 60 ofthe Statute of the Court. 1generally

agree with him on this point, even though 1 should quickly add that
Article 59 of the Statute of the Court was negatively drafted, whereas
there is no reason why such an Article should not be stated positively
possibly by providing that "the decision of the Court has binding force
between the Parties in respect of that particular case". The way it is
draftedputs too much emphasison rationepersonae and rationemateriae.
Withregardto Article60,I believethat that Articleadequatelystrengthens
the power and functionofthe Court, in order to ensure the finality of the
settlement of any dispute that maybe broughtbefore it.

Butthe most important part of SirGladwyn'sstatement is the last two
sentencesquoted above. Definitively,there is no reason why ajudgment
should be delivered or handed down in such cases, if the order of the

Court would be frustrated in advance, which, in effect, would make the
judgment a mere exercisein futility.It stronglysupports myviewthat the
Court should not be seen to make any further order if and when the
parties in dispute have not taken the necessary steps to ensure the com-
pliance with the earlier order made by the Court. It is forthisreason that
1sharethe view ofRosenne when he States :

"That law, the attitude of which to States is impersonal and not
eclectic,is exhypothesibindingon al1States.Lexvera,atqueprinceps,
apta adjubendum, etad vetandum!Forthisreason itissubmitted that
the obligation to comply with the decision of the Court cannot be
regarded only as a 'moral obligation'."(Shabtai Rosenne, île Law
and PracticeoftheInternational Court, 1965,Vol.1,p. 120.)

The Charter of the United Nations clearly provides that the Security
Council gives effect to the possible enforcement of the decisions of the
Court - Article 94 of the Charter. The SecurityCouncil has immense
powers under Chapter VI and Chapter VI1of the Charter, which in thisregard serves as its "executive function". However, a point was made
repeatedlybyBosniainthe proceedingsontherequestforanindication of
provisional measures of protection with regard to the arms embargo
placed on it and its need for self-defence to prevent continuing acts of
genocide. In Article 1of the Genocide Convention the High Contracting
Parties confirm interalia:

"that genocide,whethercommitted intimeofpeaceorintime ofwar,
is a crime under internationallawwhich they undertake to prevent
andto punish" (emphasisadded).

On self-defence,the Agent of Bosnia referred many times during the
hearings, and in his earlier request, to Article 51 of the Charter of the
United Nations. This is an important provision on self-defence which
provides that :

"Nothing in the present Charter shallimpair the inherent right of
individual orcollectiveself-defenceifanarmedattackoccursagainst
a Member of the United Nations, until the Security Council has
taken measures necessaryto maintain international peace and secu-
rity. Measures taken by Membersin the exerciseofthis right of self-
defence shall be immediately reported to the Security Council and
shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time
such action as it deems necessary in order to maintain or restore
international peace and security."

There is no doubtthat the SecurityCouncil has been givingits careful
consideration tothe hostilitiesin Bosniaand, asaresult ofthis,haspassed
many resolutions. For example, on 16April 1993,just a week after the
Court's Order, the Security Council promptly passed resolution 819

(1993) in which it took note of the Court's Order and reaffirmed its
condemnation of al1the violations of international humanitarian law,
in particular the practice of "ethnic cleansing". By resolution 808
(1993) the Security Council has established an international tribunal
for the prosecution of persons responsible for serious violations of
humanitarian law committed in the territory of the former Yugoslavia.
Just recently,on24August 1993,another resolution 859(1993)waspassed
by the Security Council to ensure and reaffirm the territorial integrity
of Bosnia-Herzegovina and its membership of the United Nations.
Al1these resolutionsleave one in no doubtthat the SecurityCouncil has
givenand continuesto givedue consideration to international obligations
under Chapters VI and VI1of the Charter with regard to the hostilities
goingon in Bosnia.405 APPLICATION OF GENOCIDE CONVENTION (SEP.OP.AJIBOLA)

Having said that, perhaps one can pause to see whether there is any

positive juridical issue involved in this argument of Bosnia. The fourth
request in its freshrequest reads thus:

"That the Government of Bosnia and Herzegovina must have the
means 'to prevent'thecommissionofactsofgenocideagainst itsown

People as required by Article 1ofthe Genocide Convention."

In the first place,1find it difficult to understand this request. What
form of measure can the Court indicate to enable Bosnia "to have the
means 'to prevent' the commission of acts of genocide against its own
People"? It must, however, be constantlyborne in mind that the aim of

indicating provisional measures of protection is "to preservethe respec-
tiverights ofeither party", eventhough one isaware ofthe requirement of
Article 1of the Genocide Convention.
Article IX of that Convention provides
"Disputes between the ContractingPartiesrelatingto the interpre-
tation, application orfulfilment ofthe presentConvention,including

those relating totheresponsibility ofaStateforgenocide orforany of
the other actsenumerated in article III ..."

shallbe submittedto the Courtat the request of any of the parties.
On this particularfourth request of Bosnia, if it is asking for a declar-
atoryjudgment of the Court, which seems to me to be the purport of its

request, and provided that such a request is entertainable by theCourt, it
must await the final hearing of the case on the merits. Furthermore, the
question iswhether the issueofgenocideasprovided forin Article 1ofthe
Convention isnot exclusivelya matter forthe States which "undertake to
prevent and to punish" it. Again, another pertinent question may be
asked, namely :"Who are the 'Bosnian People'? Does thisnot include the
Croats, Serbs, Muslims and Jews"? Has the request not missed its target
since it is alleged therein that "violations" and "acts of genocide" are
being directedagainstthe Muslims ?Astothe power,function and obliga-
tions of the Court,1think that they have been adequately addressed and
discharged by the Order issued on 8April 1993,especially on the subject
of the prevention of acts of genocide which is the subject-matter of the
Applicant's request for provisional measures.

If, however, the issue of "prevention" is, assuspect, overstretched to
include the question of access by the Applicant to the means (weapons)
"to prevent" the commission of acts of genocide, 1would point out that
the request is misconceived as far as the Court is concerned. It was the
SecurityCouncil acting upon itspowers under theCharter - and rightlytoo - that on 25 September 1991placed an embargo upon the provision
of arms and military equipment to Yugoslavia (as it then was) with that
State'sconsent. Eventhough the Applicanthasargued, and 1thinkthere is
an element of logicin its argument, that at that time (25September 1991)
the Stateof Bosniaand Herzegovina wasnot inexistence and declared its
independence only on 6March 1992and became a Member ofthe United
Nations on 22 May 1992,and that the former State of Yugoslavia is no
longer in existence, ever sinceits (Bosnia's)independence the same reso-
lutions on embargo have been maintained. In this regard, the Security
Council is now actingwithin its power under Chapter VII, and it is still
seised of the matter. Had any indication been made by the Courton this
particular request, and if thesame were not complied with (as happened
with respectto the Order of 8April 1993),Bosnia might still have had to

present its complaints to the Security Council, either under Articles 34
and 35 of the Charter, or under Article 94 upon which 1 have earlier
expressed my opinion.

Myconclusionis that an order, likeajudgment (andbeingincidental to
it) ought not to be ineffective,artificial or illusory. It should be binding
and enforceable, otherwise, abinitio,there maybe a good and reasonable
ground to question its being issued at all. The Court, it is submitted,
should not be seen to act in vain - Judiciumnondebet esse illusorium;
suumeffectumhaberedebet.

TheCourt, as 1would further point out, has this power under the Sta-
tute and Rules, so that it also forms a part of its inherent power under
generalinternational law.Otherwise it maybe impeded fromfunctioning
as a Court. This is my reason for stating that the Court should have
rejected or refused to issue the request for another Order in this case,
unless and until the firstrder of 8April1993 had been complied withby
both Parties, and 1therefore agree with the Court, when it reaffirms its
firstindication ofprovisionalmeasures and re-emphasizesto both Parties
that they should take al1necessary steps to implement and comply with
the firstOrder of theCourt, made on 8April1993.

(Signed) Bola AJIBOLA.