Counter-claims

Code

OVERVIEW OF THE CASE

On 2 July 1999, Croatia filed an Application against the Federal Republic of Yugoslavia (FRY) “for violations of the Convention on the Prevention and Punishment of the Crime of Genocide”. As basis for the Court’s jurisdiction, Croatia invoked Article IX of that Convention to which, according to it, both Croatia and Yugoslavia were parties. On 11 September 2002, Yugoslavia filed preliminary objections to the jurisdiction of the Court and to the admissibility of the claims made by Croatia.

The Court delivered its Judgment on the preliminary objections on 18 November 2008. It rejected the first and third objections raised by the Respondent and found that the second objection was not exclusively preliminary in character.

On 4 January 2010, the Republic of Serbia filed its Counter-Memorial containing counter-claims.

The Court held public hearings from 3 March to 1 April 2014, at which time it also heard witnesses and witness-experts. The Court delivered its Judgment on 3 February 2015.

The Court first considered the scope of its jurisdiction, which, it recalled, was founded only on Article IX of the Genocide Convention. It noted that the Court thus had no power to rule on alleged breaches of other obligations under international law, not amounting to genocide, particularly those protecting human rights in armed conflict. That was so even if the alleged breaches were of obligations under peremptory norms, or of obligations which protect essential humanitarian values, and which might be owed erga omnes. The Court further noted that the jurisdiction provided for under Article IX did not extend to allegations of violations of the customary international law on genocide, even if it was well established that the Convention enshrines principles that also form part of customary international law. Referring to statements contained in its jurisprudence, the Court recalled that the Genocide Convention contains obligations erga omnes and that the prohibition of genocide has the character of a peremptory norm (jus cogens).

The Court recalled that, in its 2008 Judgment, it had found that it had jurisdiction over events which had taken place after 27 April 1992 (the date on which the FRY became party, by succession, to the Genocide Convention), but had at the time reserved its decision on its jurisdiction with regard to violations of the Convention allegedly committed before that date. After examining the Parties’ arguments on this second aspect, the Court found that it had jurisdiction to rule upon the entirety of Croatia’s claim, including in respect of acts prior to 27 April 1992. In this regard, the Court first considered that the FRY could not be bound by the Genocide Convention before 27 April 1992. It took note, however, of Croatia’s alternative argument that the FRY (and later Serbia) could have succeeded to the responsibility of the Socialist Federal Republic of Yugoslavia (SFRY) for violations of the Convention prior to that date. The Court stated in this respect that, in order to determine whether Serbia was responsible for violations of the Convention, the Court would need to decide: (1) whether the acts relied on by Croatia had taken place and, if they had, whether they were contrary to the Convention; (2) if so, whether those acts were attributable to the SFRY at the time that they occurred and engaged its responsibility; and (3) if the responsibility of the SFRY had been engaged, whether the FRY succeeded to that responsibility. Noting that the Parties disagreed on these questions, the Court considered that there existed between them a dispute falling within the scope of Article IX of the Convention (“[d]isputes . . . relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III”) and that it therefore had jurisdiction to entertain it. The Court further noted that, in reaching that conclusion, it was not necessary for it to decide the aforementioned questions, which were matters for the merits.

The Court also took the view that it was not necessary to determine the admissibility questions raised by Serbia before examining Croatia’s claim on the merits. With regard to Serbia’s argument that Croatia’s claim was inadmissible in so far as events said to have occurred before the FRY came into existence as a State on 27 April 1992 could not be attributed to it, the Court considered that this involved questions of attribution which the Court did not need to determine before considering on the merits the acts alleged by Croatia. With regard to Serbia’s alternative argument that the claim was inadmissible in so far as it concerned events prior to 8 October 1991, the date on which Croatia came into existence as a State and became a party to the Convention, the Court observed that the Applicant had not made discrete claims in respect of the events before and after 8 October 1991; rather, it had advanced a single claim alleging a pattern of conduct increasing in intensity throughout the course of 1991. In this context, the Court considered that what had happened prior to 8 October 1991 was, in any event, pertinent to an evaluation of whether what took place after that date involved violations of the Genocide Convention. It therefore was not necessary for the Court to rule on Serbia’s argument before it had examined and assessed the totality of the evidence advanced by Croatia.

The Court then turned to the merits of the Parties’ claims. It recalled that, under the terms of the 1948 Convention, the crime of genocide contains two constituent elements. The first is the physical element, namely the acts perpetrated (which are set out in Article II and include, in particular, killing members of the group (subparagraph (a)) and causing serious bodily or mental harm to members of the group (subparagraph (b)). The second is the mental element, namely the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. The Court noted that this mental element is the essential characteristic of genocide and distinguishes it from other serious crimes. It is a specific intent (dolus specialis), which, in order for genocide to be established, must be present in addition to the intent required for each of the individual acts involved. The Court explained that the aim must be the physical or biological destruction of the protected group, or a substantial part of that group. Evidence of this intent is to be sought, first, in the State’s policy (while at the same time accepting that such intent will seldom be expressly stated), but it can also be inferred from a pattern of conduct, when this intent is the only inference that can reasonably be drawn from the acts in question.

Regarding Croatia’s claim, the Court considered that, in the regions of Eastern Slavonia, Western Slavonia, Banovina/Banija, Kordun, Lika and Dalmatia, the JNA (the army of the SFRY) and Serb forces had committed killings of and caused serious bodily or mental harm to members of the Croat national or ethnic group. In the view of the Court, these acts constituted the actus reus of genocide within the meaning of Article II (a) and (b) of the Convention.

The actus reus of genocide having been established, the Court turned to the question whether the acts that had been perpetrated reflected a genocidal intent. In the absence of direct proof of such intent (for example, the expression of a policy to that effect), the Court examined whether it had been demonstrated that there existed a pattern of conduct from which the only reasonable inference to be drawn was an intent on the part of the perpetrators of the acts to destroy a substantial part of the group of ethnic Croats. The Court considered that this was not the case. It observed, in particular, that the aim of the crimes committed against ethnic Croats appeared to have been the forced displacement of the majority of the Croat population in the regions concerned, not its physical or biological destruction. In the absence of evidence of the required intent, the Court found that Croatia had not proved its allegations that genocide or other violations of the Convention had been committed. It thus dismissed Croatia’s claim in its entirety and did not consider it necessary to rule on other questions, such as the attribution of the acts committed or succession to responsibility.

Regarding Serbia’s counter-claim, which was found to be admissible, the Court concluded that, during and after Operation Storm, carried out in August 1995, Croatian forces had committed acts falling within Article II (a) and (b): (i) killings of members of the national or ethnical group of Serbs who were fleeing or had remained in the areas of which the Croatian army had taken control; and (ii) causing serious bodily or mental harm to Serbs.

However, the Court considered that the existence of an intent to destroy, in whole or in part, the national or ethnical group of Croatian Serbs had not been established in this case. In particular, although acts constituting the physical element of genocide had been committed, they had not been committed on a scale such that they could only point to the existence of a genocidal intent. The Court found that neither genocide nor other violations of the Convention had been proved. Accordingly, it rejected Serbia’s counter-claim in its entirety.

This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Application instituting proceedings

2 July 1999

Available in:

English French

Written proceedings

Memorial of Croatia

1 March 2001

volume II, part 3

English

Preliminary Objections of the Federal Republic of Yugoslavia

1 September 2002

Procedure(s):Preliminary objections

Available in:

English French

Written statement of the Republic of Croatia

29 April 2003

Procedure(s):Preliminary objections

Available in:

English French

Counter-Memorial of Serbia

1 December 2009

Procedure(s):Counter-claims

Reply of Croatia

20 December 2010

Procedure(s):Counter-claims

Rejoinder of Serbia

1 November 2011

Procedure(s):Counter-claims

Available in:

English

volume I

English

volume II

English

volume III

English

Additional Pleading Croatia

30 August 2012

Procedure(s):Counter-claims

Verbatim record 2014/8 (bilingual version)

Public sitting held on Wednesday 5 March 2014, at 10 a.m., at the Peace Palace, President Tomka presiding, in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)

Available in:

Original Language

Translation

(bilingual version) Translation

Translation

(bilingual version) Translation

Verbatim record 2014/9 (bilingual version)

Original Language

Translation

(bilingual version) Translation

Orders

Judgments

Judgment of 18 November 2008

Preliminary Objections

Procedure(s):Preliminary objections

Dissenting opinion of Judge ad hoc Kreća

English French Bilingual

Judgment of 3 February 2015

Merits

Summary of the Judgment of 18 November 2008

Available in:

English French

Summary 2015/1

Summary of the Judgment of 3 February 2015

Available in:

English French

Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon)

OVERVIEW OF THE CASE

On 29 March 1994, Cameroon filed in the Registry of the Court an Application instituting proceedings against Nigeria with respect to the question of sovereignty over the Bakassi Peninsula, and requesting the Court to determine the course of the maritime frontier between the two States in so far as that frontier had not been established in 1975. As a basis for the jurisdiction of the Court, Cameroon referred to the declarations made by the two States under Article 36, paragraph 2, of the Statute of the Court, by which they accepted that jurisdiction as compulsory. In its Application, Cameroon referred to “an aggression by the Federal Republic of Nigeria, whose troops are occupying several Cameroonian localities on the Bakassi Peninsula”, and asked the Court, inter alia, to adjudge and declare that sovereignty over the Peninsula of Bakassi was Cameroonian, by virtue of international law, and that Nigeria had violated and was violating the fundamental principle of respect for frontiers inherited from colonization (uti possidetis juris), as well as other rules of conventional and customary international law, and that Nigeria’s international responsibility was involved. Cameroon also requested the Court to proceed to prolong the course of its maritime boundary with Nigeria up to the limit of the maritime zone which international law placed under their respective jurisdictions.

On 6 June 1994, Cameroon filed in the Registry an Additional Application “for the purpose of extending the subject of the dispute” to a further dispute described as relating essentially “to the question of sovereignty over part of the territory of Cameroon in the area of Lake Chad”, while also requesting the Court to specify definitively the frontier between Cameroon and Nigeria from Lake Chad to the sea. That Application was treated as an amendment to the initial Application. After Nigeria had raised certain preliminary objections, Cameroon presented, on 1 May 1996, a written statement of its observations and submissions relating thereto, in accordance with an Order of the President dated 10 January 1996. Moreover, on 12 February 1996, Cameroon, referring to the “grave incidents which [had] taken place between the . . . forces [of the Parties] in the Bakassi Peninsula since . . . 3 February 1996”, asked the Court to indicate provisional measures. By an Order dated 15 March 1996, the Court indicated a number of provisional measures aimed principally at putting an end to the hostilities.

The Court held hearings from 2 to 11 March 1998 on the preliminary objections raised by Nigeria. In its Judgment of 11 June 1998, the Court found that it had jurisdiction to adjudicate upon the merits of the dispute and that Cameroon’s requests were admissible. The Court rejected seven of the preliminary objections raised by Nigeria and declared that, as the eighth did not have an exclusively preliminary character, it should be settled during the proceedings on the merits.

Nigeria filed its Counter-Memorial, including counter-claims, within the time-limit extended by the Court. On 30 June 1999, the Court adopted an Order declaring Nigeria’s counter-claims admissible and fixing 4 April 2000 as the time-limit for the filing of the Reply of Cameroon and 4 January 2001 as the time-limit for the filing of the Rejoinder of Nigeria. In its Order, the Court also reserved the right of Cameroon to present its views in writing a second time on the Nigerian counter-claims in an additional pleading which might be the subject of a subsequent Order. The Reply and the Rejoinder were duly filed within the time-limits so fixed. In January 2001, Cameroon informed the Court that it wished to present its views in writing a second time on Nigeria’s counter-claims. As Nigeria had no objection to that request, the Court authorized the presentation by Cameroon of an additional pleading relating exclusively to the counter-claims submitted by Nigeria. That pleading was duly filed within the time-limit fixed by the Court.

On 30 June 1999, the Republic of Equatorial Guinea filed an Application for permission to intervene in the case. Each of the two Parties having filed its written observations on that Application and Equatorial Guinea having informed the Court of its views with respect to them, the Court, by Order of 21 October 1999, authorized Equatorial Guinea to intervene in the case pursuant to Article 62 of the Statute, to the extent, in the manner and for the purposes set out in its Application. Equatorial Guinea filed a written statement and each of the Parties filed written observations on the latter within the time-limits fixed by the Court. Public hearings on the merits were held from 18 February to 21 March 2002.

In its Judgment of 10 October 2002, the Court determined as follows the course of the boundary, from north to south, between Cameroon and Nigeria :

In the Lake Chad area, the Court decided that the boundary was delimited by the Thomson-Marchand Declaration of 1929-1930, as incorporated in the Henderson-Fleuriau Exchange of Notes of 1931 (between Great Britain and France) ; it found that the boundary started in the Lake from the Cameroon-Nigeria-Chad tripoint (whose co-ordinates it defined) and followed a straight line to the mouth of the River Ebeji as it was in 1931 (whose coordinates it also defined) and thence ran in a straight line to the point where the river today divided into two branches.
Between Lake Chad and the Bakassi Peninsula, the Court confirmed that the boundary was delimited by the following instruments :
- from the point where the River Ebeji bifurcated as far as Tamnyar Peak, by the Thomson-Marchand Declaration of 1929-1930 (paras. 2-60), as incorporated in the Henderson-Fleuriau Exchange of Notes of 1931 ;
- from Tamnyar Peak to pillar 64 referred to in Article XII of the Anglo- German Agreement of 12 April 1913, by the British Order in Council of 2 August 1946 ;
- from pillar 64 to the Bakassi Peninsula, by the Anglo-German Agreements of 11 March and 12 April 1913.
The Court examined point by point seventeen sectors of the land boundary and specified for each one how the above-mentioned instruments were to be interpreted.
In Bakassi, the Court decided that the boundary was delimited by the Anglo-German Agreement of 11 March 1913 (Arts. XVIII-XX) and that sovereignty over the Bakassi Peninsula lay with Cameroon. It decided that in that area the boundary followed the thalweg of the River Akpakorum (Akwayafe), dividing the Mangrove Islands near Ikang in the way shown on map TSGS 2240, as far as a straight line joining Bakassi Point and King Point.
As regards the maritime boundary, the Court, having established that it had jurisdiction to address that aspect of the case — which Nigeria had disputed —, fixed the course of the boundary between the two States’ maritime areas.

In its Judgment the Court requested Nigeria, expeditiously and without condition, to withdraw its administration and military or police forces from the area of Lake Chad falling within Cameroonian sovereignty and from the Bakassi Peninsula. It also requested Cameroon expeditiously and without condition to withdraw any administration or military or police forces which might be present along the land boundary from Lake Chad to the Bakassi Peninsula on territories which, pursuant to the Judgment, fell within the sovereignty of Nigeria. The latter had the same obligation in regard to territories in that area which fell within the sovereignty of Cameroon. The Court took note of Cameroon’s undertaking, given at the hearings, to “continue to afford protection to Nigerians living in the [Bakassi] peninsula and in the Lake Chad area”. Finally, the Court rejected Cameroon’s submissions regarding the State responsibility of Nigeria, as well as Nigeria’s counter-claims.

This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Application instituting proceedings

29 March 1994

Available in:

English French

Additional Application to the Application Instituting Proceedings brought by the Republic of Cameroon

6 June 1994

Available in:

English French

French

Oral proceedings

Verbatim record 1996/2 (bilingual version)

Public sitting held on Tuesday 5 March 1996, at 10 a.m., at the Peace Palace, President Bedjaoui presiding

Procedure(s):Provisional measures

Available in:

Original Language

Verbatim record 1996/3 (bilingual version)

Translation

(bilingual version) Translation

Orders

Order of 21 October 1999

Decision on intervention; fixing of time-limits: Written Statement and Written Observations

Procedure(s):Intervention

Available in:

English French Bilingual

Order of 20 February 2001

Authorizing of submission of pleading relating to Counter-claims and fixing of time-limit therefor

Procedure(s):Counter-claims

Judgment of 10 October 2002

Procedure(s):Counter-claims

English French

Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina)

OVERVIEW OF THE CASE

On 20 March 1993, the Republic of Bosnia and Herzegovina instituted proceedings against the Federal Republic of Yugoslavia in respect of a dispute concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations on 9 December 1948, as well as various matters which Bosnia and Herzegovina claimed were connected therewith. The Application invoked Article IX of the Genocide Convention as the basis for the jurisdiction of the Court. Subsequently, Bosnia and Herzegovina also invoked certain additional bases of jurisdiction.

On 20 March 1993, immediately after the filing of its Application, Bosnia and Herzegovina submitted a Request for the indication of provisional measures under Article 41 of the Statute and, on 1 April 1993, Yugoslavia submitted written observations on Bosnia and Herzegovina’s Request for provisional measures, in which it, in turn, recommended the Court to order the application of provisional measures to Bosnia and Herzegovina. By an Order dated 8 April 1993, the Court, after hearing the Parties, indicated certain provisional measures with a view to the protection of rights under the Genocide Convention. On 27 July 1993, Bosnia and Herzegovina submitted a new Request for the indication of provisional measures and, on 10 August 1993, Yugoslavia also submitted a Request for the indication of provisional measures. By an Order dated 13 September 1993, the Court, after hearing the Parties, reaffirmed the measures indicated in its Order of 8 April 1993 and declared that those measures should be immediately and effectively implemented. Then, within the extended time-limit of 30 June 1995 for the filing of its Counter-Memorial, Yugoslavia, referring to Article 79, paragraph 1, of the Rules of Court, raised preliminary objections concerning both the admissibility of the Application and the jurisdiction of the Court to entertain the case.

In its Judgment of 11 July 1996, the Court rejected the preliminary objections raised by Yugoslavia and found that it had jurisdiction to deal with the dispute on the basis of Article IX of the Genocide Convention, dismissing the additional bases of jurisdiction invoked by Bosnia and Herzegovina. Among other things, it found that the Convention bound the two Parties and that there was a legal dispute between them falling within the provisions of Article IX.

By an Order dated 23 July 1996, the President of the Court fixed 23 July 1997 as the time-limit for the filing by Yugoslavia of its Counter-Memorial on the merits. The Counter-Memorial was filed within the prescribed time-limit and contained counter-claims, by which Yugoslavia requested the Court, among other things, to adjudge and declare that Bosnia and Herzegovina was responsible for acts of genocide committed against the Serbs in Bosnia and Herzegovina and for other violations of the Genocide Convention. The admissibility of the counter-claims under Article 80, paragraph 1, of the Rules of Court having been called into question by Bosnia and Herzegovina, the Court ruled on the matter, declaring, in its Order of 17 December 1997, that the counter-claims were admissible as such and formed part of the proceedings in the case. The Reply of Bosnia and Herzegovina and the Rejoinder of Yugoslavia were subsequently filed within the time-limits laid down by the Court and its President. During 1999 and 2000, various exchanges of letters took place concerning new procedural difficulties which had emerged in the case. In April 2001, Yugoslavia informed the Court that it wished to withdraw its counter-claims. As Bosnia and Herzegovina had raised no objection, the President of the Court, by an Order of 10 September 2001, placed on record the withdrawal by Yugoslavia of the counter-claims it had submitted in its Counter-Memorial. On 4 May 2001, Yugoslavia submitted to the Court a document entitled “Initiative to the Court to reconsider ex officio jurisdiction over Yugoslavia”, in which it first asserted that the Court had no jurisdiction ratione personae over Serbia and Montenegro and secondly requested the Court to “suspend proceedings regarding the merits of the case until a decision on this Initiative”, i.e., on the jurisdictional issue, had been rendered. On 1 July 2001, it also filed an Application for revision of the Judgment of 11 July 1996 ; this was found to be inadmissible by the Court in its Judgment of 3 February 2003. In a letter dated 12 June 2003, the Registrar informed the Parties to the case that the Court had decided that it could not accede to the Applicant’s request to suspend the proceedings on the merits.

Following public hearings held between 27 February 2006 and 9 May 2006, the Court rendered its Judgment on the merits on 26 February 2007. It began by examining the new jurisdictional issues raised by the Respondent arising out of its admission as a new Member of the United Nations in 2001. The Court affirmed that it had jurisdiction on the basis of Article IX of the Genocide Convention, stating in particular that its 1996 Judgment, whereby it found it had jurisdiction under the Genocide Convention, benefited from the “fundamental” principle of res judicata, which guaranteed “the stability of legal relations”, and that it was in the interest of each Party “that an issue which has already been adjudicated in favour of that party be not argued again”. The Court then made extensive findings of fact as to whether alleged atrocities had occurred and, if so, whether they could be characterized as genocide. After determining that massive killings and other atrocities were perpetrated during the conflict throughout the territory of Bosnia and Herzegovina, the Court found that these acts were not accompanied by the specific intent that defines the crime of genocide, namely the intent to destroy, in whole or in part, the protected group. The Court did, however, find that the killings in Srebrenica in July 1995 were committed with the specific intent to destroy in part the group of Bosnian Muslims in that area and that what happened there was indeed genocide. The Court found that there was corroborated evidence which indicated that the decision to kill the adult male population of the Muslim community in Srebrenica had been taken by some members of the VRS (Army of the Republika Srpska) Main Staff. The evidence before the Court, however, did not prove that the acts of the VRS could be attributed to the Respondent under the rules of international law of State responsibility. Nonetheless, the Court found that the Republic of Serbia had violated its obligation contained in Article 1 of the Genocide Convention to prevent the Srebrenica genocide. The Court observed that this obligation required States that are aware, or should normally have been aware, of the serious danger that acts of genocide would be committed, to employ all means reasonably available to them to prevent genocide, within the limits permitted by international law

The Court further held that the Respondent had violated its obligation to punish the perpetrators of genocide, including by failing to co-operate fully with the International Criminal Tribunal for the former Yugoslavia (ICTY) with respect to the handing over for trial of General Ratko Mladić. This failure constituted a violation of the Respondent’s duties under Article VI of the Genocide Convention.

In respect of Bosnia and Herzegovina’s request for reparation, the Court found that, since it had not been shown that the genocide at Srebrenica would in fact have been averted if Serbia had attempted to prevent it, financial compensation for the failure to prevent the genocide at Srebrenica was not the appropriate form of reparation. The Court considered that the most appropriate form of satisfaction would be a declaration in the operative clause of the Judgment that Serbia had failed to comply with the obligation to prevent the crime of genocide. As for the obligation to punish acts of genocide, the Court found that a declaration in the operative clause that Serbia had violated its obligations under the Convention and that it must transfer individuals accused of genocide to the ICTY and must co-operate fully with the Tribunal would constitute appropriate satisfaction.

This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Application instituting proceedings

20 March 1993

Available in:

English French

Supplementary Submission in support of the Application of the Bosnia and Herzegovina instituting legal proceedings against Yugoslavia (Serbia and Montenegro) on the basis of the 1948 Genocide Convention and in the support of its Request for an Indication of Provisional Measures of Protection

22 March 1993

Procedure(s):Provisional measures

Available in:

English

Document submitted by the Republic of Bosnia and Herzegovina as constituting additional source of jurisdiction

31 March 1993

Available in:

Written proceedings

Request for the Indication of Provisional Measures of Protection submitted by the Government of the Republic of Bosnia and Herzegovina

20 March 1993

Procedure(s):Provisional measures

Available in:

English

22 March 1993

Procedure(s):Provisional measures

Available in:

English

Request for the Indication of Provisional Measures by the Federal Republic of Yugoslavia and Written Observations on the Request submitted by the Republic of Bosnia and Herzegovina for the Indication of Provisional Measures

Procedure(s):Counter-claims

Available in:

English

Withdrawal of Counter-claims by the Federal Republic of Yugoslavia

20 April 2001

Procedure(s):Counter-claims

Available in:

English

(bilingual version) Translation

Orders

Order of 8 April 1993

Request for the Indication of Provisional Measures

Procedure(s):Provisional measures

Available in:

English French Bilingual

Available in:

English French Bilingual

Declaration of Judge ad hoc Kreca

English French Bilingual

Separate Opinion of Judge Koroma

English French Bilingual

Separate Opinion of Judge ad hoc Lauterpacht

English French Bilingual

Judgment of 11 July 1996

Preliminary Objections

Procedure(s):Preliminary objections

Available in:

English French

OVERVIEW OF THE CASE

On 2 November 1992, the Islamic Republic of Iran filed in the Registry of the Court an Application instituting proceedings against the United States of America with respect to the destruction of Iranian oil platforms. The Islamic Republic founded the jurisdiction of the Court upon a provision of the Treaty of Amity, Economic Relations and Consular Rights between Iran and the United States, signed at Tehran on 15 August 1955. In its Application, Iran alleged that the destruction caused by several warships of the United States Navy, in October 1987 and April 1988, to three offshore oil production complexes, owned and operated for commercial purposes by the National Iranian Oil Company, constituted a fundamental breach of various provisions of the Treaty of Amity and of international law. Time-limits for the filing of written pleadings were then fixed and subsequently extended by two Orders of the President of the Court. On 16 December 1993, within the extended time-limit for filing the Counter-Memorial, the United States of America filed a preliminary objection to the Court’s jurisdiction. In accordance with the terms of Article 79, paragraph 3, of the Rules of Court, the proceedings on the merits were suspended ; by an Order of 18 January 1994, the Court fixed 1 July 1994 as the time-limit within which Iran could present a written statement of its observations and submissions on the objection, which was filed within the prescribed time-limit.

In its Judgment of 12 December 1996, the Court rejected the preliminary objection raised by the United States of America and found that it had jurisdiction, on the basis of Article XXI, paragraph 2, of the Treaty of 1955, to entertain the claims made by Iran under Article X, paragraph 1, of that Treaty, which protects freedom of commerce and navigation between the territories of the Parties.

When filing its Counter-Memorial, the United States of America submitted a counter-claim requesting the Court to adjudge and declare that, through its actions in the Persian Gulf in 1987 and 1988, Iran had also breached its obligations under Article X of the Treaty of 1955. Iran having disputed the admissibility of that counter-claim under Article 80, paragraph 1, of the Rules, the Court ruled on the matter in an Order of 10 March 1998. It found that the counter-claim was admissible as such and formed part of the current proceedings, and directed Iran to submit a Reply and the United States to submit a Rejoinder. Those pleadings were filed within the extended time-limits thus fixed. In its Order of 1998, the Court also stated that it was necessary, in order to ensure strict equality between the Parties, to reserve the right of Iran to present its views in writing a second time on the counter-claim, in an additional pleading, the filing of which might be the subject of a subsequent Order. Such an Order was made by the Vice-President on 28 August 2001, and Iran subsequently filed its additional pleading within the time-limits fixed. Public sittings on the claim of Iran and the counter-claim of the United States of America were held from 17 February to 7 March 2003.

The Court delivered its Judgment on 6 November 2003. Iran had contended that, in attacking on two occasions and destroying three offshore oil production complexes, owned and operated for commercial purposes by the National Iranian Oil Company, the United States had violated freedom of commerce between the territories of the Parties as guaranteed by the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran. It sought reparation for the injury thus caused. The United States had argued in its counter-claim that it was Iran which had violated the 1955 Treaty by attacking vessels in the Gulf and otherwise engaging in military actions that were dangerous and detrimental to commerce and navigation between the United States and Iran. The United States likewise sought reparation.

The Court first considered whether the actions by American naval forces against the Iranian oil complexes were justified under the 1955 Treaty as measures necessary to protect the essential security interests of the United States (Art. XX, para. 1 (d), of the Treaty). Interpreting the Treaty in light of the relevant rules of international law, it concluded that the United States was only entitled to have recourse to force under the provision in question if it was acting in self-defence. The United States could exercise such a right of self-defence only if it had been the victim of an armed attack by Iran and the United States actions must have been necessary and proportional to the armed attack against it. After carrying out a detailed examination of the evidence provided by the Parties, the Court found that the United States had not succeeded in showing that these various conditions were satisfied, and concluded that the United States was therefore not entitled to rely on the provisions of Article XX, paragraph 1 (d), of the 1955 Treaty.

The Court then examined the issue of whether the United States, in destroying the platforms, had impeded their normal operation, thus preventing Iran from enjoying freedom of commerce “between the territories of the two High Contracting Parties” as guaranteed by the 1955 Treaty (Art. X, para. 1). It concluded that, as regards the first attack, the platforms attacked were under repair and not operational, and that at that time there was thus no trade in crude oil from those platforms between Iran and the United States. Accordingly, the attack on those platforms could not be considered as having affected freedom of commerce between the territories of the two States. The Court reached the same conclusion in respect of the later attack on two other complexes, since all trade in crude oil between Iran and the United States had been suspended as a result of an embargo imposed by an Executive Order adopted by the American authorities. The Court thus found that the United States had not breached its obligations to Iran under Article X, paragraph 1, of the 1955 Treaty and rejected Iran’s claim for reparation.

In regard to the United States counter-claim, the Court, after rejecting the objections to jurisdiction and admissibility raised by Iran, considered whether the incidents attributed by the United States to Iran infringed freedom of commerce or navigation between the territories of the Parties as guaranteed by Article X, paragraph 1, of the 1955 Treaty. The Court found that none of the ships alleged by the United States to have been damaged by Iranian attacks was engaged in commerce or navigation between the territories of the two States. Nor did the Court accept the generic claim by the United States that the actions of Iran had made the Persian Gulf unsafe for shipping, concluding that, according to the evidence before it, there was not, at the relevant time, any actual impediment to commerce or navigation between the territories of Iran and the United States. The Court accordingly rejected the United States counter-claim for reparation.

This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Application instituting proceedings

2 November 1992

Available in:

English French

Written proceedings

Oral proceedings

Available in:

Original Language

Translation

(bilingual version) Translation

Orders

English French Bilingual

Separate opinion by Judge Oda

English French Bilingual

Separate opinion by Judge Higgins

English French Bilingual

Judgment of 12 December 1996

Preliminary Objection

Procedure(s):Preliminary objections

Judgment of 6 November 2003

Merits

Procedure(s):Counter-claims

English French

Summary 2003/2

Summary of the Judgment of 6 November 2003

Available in:

English French

OVERVIEW OF THE CASE

By a decree of 30 December 1948, the French authorities in the Moroccan Protectorate imposed a system of licence control in respect of imports not involving an official allocation of currency, and limited these imports to a number of products indispensable to the Moroccan economy. The United States maintained that this measure affected its rights under treaties with Morocco and contended that, in accordance with these treaties and with the General Act of Algeciras of 1906, no Moroccan law or regulation could be applied to its nationals in Morocco without its previous consent. In its Judgment of 27 August 1952, the Court held that the import controls were contrary to the Treaty between the United States and Morocco of 1836 and the General Act of Algeciras since they involved discrimination in favour of France against the United States. The Court then considered the extent of the consular jurisdiction of the United States in Morocco and held that the United States was entitled to exercise such jurisdiction in the French Zone in all disputes, civil or criminal, between United States citizens or persons protected by the United States. It was also entitled to exercise such jurisdiction to the extent required by the relevant provisions of the General Act of Algeciras. The Court rejected the contention of the United States that its consular jurisdiction included cases in which only the defendant was a citizen or protégé of the United States. It also rejected the claim by the United States that the application to United States citizens of laws and regulations in the French Zone of Morocco required the prior assent of the United States Government. Such assent was required only in so far as the intervention of the consular courts of the United States was necessary for the effective enforcement of such laws or regulations with respect to United States citizens. The Court rejected a counter-claim by the United States that its nationals in Morocco were entitled to immunity from taxation. It also dealt with the question of the valuation of imports by the Moroccan customs authorities.

This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Application instituting proceedings

28 October 1950

Available in:

English French Bilingual

Written proceedings

English French Bilingual

Order of 25 June 1951

Fixing of time-limit: Written Statements of observations and submissions on Preliminary Objection

Available in:

English French Bilingual

Order of 31 October 1951

Withdrawal of Preliminary Objection, Fixing of time-limits: Counter-Memorial, Reply and Rejoinder

Procedure(s):Preliminary objections

Available in:

English French Bilingual

Order of 31 March 1952

Extension of time-limit: Rejoinder

Summary of the Judgment of 27 August 1952

Available in:

English French

Press releases

Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru)

OVERVIEW OF THE CASE

The granting of diplomatic asylum in the Colombian Embassy at Lima, on 3 January 1949, to a Peruvian national, Victor Raúl Haya de la Torre, a political leader accused of having instigated a military rebellion, was the subject of a dispute between Peru and Colombia which the Parties agreed to submit to the Court. The Pan-American Havana Convention on Asylum (1928) laid down that, subject to certain conditions, asylum could be granted in a foreign embassy to a political refugee who was a national of the territorial State. The question in dispute was whether Colombia, as the State granting the asylum, was entitled unilaterally to “qualify” the offence committed by the refugee in a manner binding on the territorial State — that is, to decide whether it was a political offence or a common crime. Furthermore, the Court was asked to decide whether the territorial State was bound to afford the necessary guarantees to enable the refugee to leave the country in safety. In its Judgment of 20 November 1950, the Court answered both these questions in the negative, but at the same time it specified that Peru had not proved that Mr. Haya de la Torre was a common criminal. Lastly, it found in favour of a counter-claim submitted by Peru that Mr. Haya de la Torre had been granted asylum in violation of the Havana Convention.

This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Application instituting proceedings

15 October 1949

Available in:

English French Bilingual

Agreement of Lima between Colombia and Peru (31 August 1949) and correspondence (French version only)

15 October 1949

Available in:

French

Written proceedings

English French Bilingual

Order of 17 December 1949

Extension of time-limits: Memorial and Counter-Memorial

Available in:

English French Bilingual

Order of 9 May 1950

Extension of time-limit: Rejoinder

English French

Press release 1950/42