Summaries of Judgments, AdvNot an official documents of the Internationa
l Court of Justice
CASE CONCERNING LEGALITY OF USE OF FORCE (YUGOSLAVIA v.
FRANCE) (PROVISIONAL MEASURES)
Order of 2 June 1999
In an Order issued in the case coilceming Legality of Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma,
Use of Force (Yugoslaviav.France), the Court rejectedby Higgins,Parra-Aranguren,Kooijmans;
twelve votes to three the. request for the indication of AGAINST: Judges Shi, Vereshchetin; Judge ad hoc
provisional measures submitted by the Federal Republic of Kreca;
Yugoslavia (FRY). The Court also stated that it could not at (2) By fourteenvotesto one,
that stageof proceedings,accedeto France's requestthatthe
case be removed from the List. It thus remained seized of Reserves the subsequent procedure for further
the case and the subsequentprocedurehad been reservedfor decision.
IN FAVOUR: Vice-President Weeramantry, Acting
furtherdecisionby fourteenvotesto one. President; President Schwebel; Judges Bedjaoui,
The Court was composed as follows: Vice-President
Weeramantry,Acting President;President Schwebel;Judges Ciuillaume, Ranjeva, Herczegh, Shi. Fleischhauer,
Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra- Kooijmans;Judgead hoc Kreca;
Aranguren, Kooijmans; Judge ad hoc Kreca; Registrar AGAINST:JudgeOda."
Valencia-Ospina.
Vice-President Weeramantry, Acting President, and
Judges Shi, Koroma and Vereshchetin appended
The complete text of the operative paragraph of the
Order is as follows: declarations to the Order of the Court. Judges Oda and
"39. Forthesereasons, Pami-Arangurenappendedseparateopinions to the Order of
THE COURT, the Court. Judge ad hoc Kreca appended a dissenting
opinionto the Orderof the Court.
(1) By twelve votes to three,
Rejects the request for the indication of provisional
measures submitted by the Federal Republic of
Yugoslaviaon 29 April 1999;
IN FAVOUR: Vice-President Weeramantry, Acting
President; President Schwebel; JudgesOda, Bedjaoui,
Continued on nepage B~ckgrozat (iii?fi)m~rrtio~z capable of falling within the provisions of that instrument
On 29 April 1999 Yugoslavia filed an application and whether, as a consequence, the dispute is one over
which the Court might havejurisdiction rntionentcrtericreI.n
instituting proceedings against France "for violittion of the its Application, Yugoslavia contends that the subject of the
obligation not to use force",accusing that State of botnbing dispute concerns inter alia "acts of the Republic of France
Yugoslav territory "together with other Member States of by which it has violated its internationalobligation..not to
NATO" (seePress CommuillquC99117). On the sameday, it
submitted a request for the indication of provisional deliberately inflict conditions of life calculated to cause the
measu.res, asking the Cou:rt to order France to "cease physical destruction of a national group". It contends that
imrnetliately its acts of use of force" and to "refrain from the sustained and intensive bombing of the whole of its
territory, including the most heavily populated areas,
any act of threat or use of force" againstthe FRY. constitutes "a serious violation ofrticle I1of the Genocide
As a basis for the jurisdiction of the Court, Yugoslavia Convention", that it is the Yugoslav nation as a whole and
invoked Article IX of the Convention on the Prevention and as such that is targeted and that the use of certain weapons
Punishment of the Crime of Genocide, adopted by the whose long-term hazards to health and the environmentare
United Nations General Assembly on 9 December 1948,as
well as Article 38, paragraph 5, of the Rules of Court. alreadyknown, and the destruction of the largestpart of the
country's power supply system, with catastrophic
Article IX of the Genocide Convention provides tliat consequences of wliich the Respondent must be aware,
disputes between the coiitracting parties rela::ing to the "impl[y] the intent to destroy, in whole or in part", the
interpretation, application or fulfilment of the Convention Yugoslav national group as such. For its part, France
shall be submitted to the International Court of Justice. As contends that the genocide, as defined by the 1948
to Article 38, paragraph 5, of the Rules of Court, it provides Convention, consists of two elements: "One objective: the
that when a State files an application against ailother State
which has not accepted the:jurisdiction of the Court, the destruction of all or part of a national or religious group as
such. The other is subjective: an intention to achieve this
application is transmittedto tliatother State, but no action is result, which is in conflict ...with 'the ~iiostelementary
taken in the proceedings unless and until that State has principles of morality"'. It asserts that "the NATO forces...
accepted the Court's jurisdiction for the purposes of the are making all efforts to ensure that the civilian population
case. suffers no needless harm" and stresses "the manifest
absence in this case of the element of intention" and "the
Reasoning of the Conrr
total silence of the applicant State" on this point. It appears
In its Order, the Court fiirstemphasizes that it is "deeply to the Court that, according to the Convention,the essential
concernedwith the human tragedy, the loss of life, and the characteristic of genocide is the intended destiuction of a
enormous suffering in KOSO~Y w~hich form tlie background" national,ethnical,racial or religiousgroup;the Courtfurther
states that"the threat or use of force against a State cannot
of the: dispute and "with the continuing loss of life and in itself constitute an act of genocidewithin the meaning of
huniat~suffering in all parts of Yugoslavia". Itdeclaresitself Article I1of the Genocide Convention". It adds that in its
"profoundly concerned with the use of force in Yugoslavia",
which "under the present circumstances ...raises very opinion, it does not appear at the present stage of the
serious issues of international law". While being "mindful proceedings that the bombiilgswhich fonn the subjectof the
of the purposes and principles of the United Nations Charter Yugoslav Application "indeed entail the element of intent,
and o:Fits own responsibilities in the maintenance of peace towards a group as such, required by the provision"
mentioned above. The Court considers therefore that it is
and sccurity under the Charter and [its] Statute'', the Court not in a positionto find, at this stageof the proceedings, that
"deems it necessary to emphasize that all parties before it the acts imputed by Yugoslavia to France are capable of
must act in conformity with their obligations under the coming within the provisions of tlie Genocide Convention;
United Nations Charter and other niles of internationallaw,
includinghumanitarian law". and Article IX cannot accordingly coiistitute a basis on
The Court then points out that it "does not automatically which the jurisdiction of the Court could prima facie be
founded in the case.
have jurisdiction over legal disputes between States" and As to Article 38, paragraph 5, of the Rules of Court,the
that "one of the fundamentalprinciples of its Statute is that Court stresses that, in tlie absence of consent by France, it
it cannot decide a dispute between States without the cannotexercisejurisdiction inthe case, even prima facie.
consent of those Statesto its jurisdiction". It cannot indicate
provisional measures without its jurisdiction -inthe case The Court concludes that it "lacks prima facie
being established prima facie. jurisdiction to entertain Yugoslavia's Application" and that
it "cannot therefore indicate any provisional ineasure
Concerning Article IX of thc Genocide Convention, the whatsoever". However, the findings reached by the Court
Court states that it is not disputed that both Yug,oslaviaand "in no way prejudge the question of the jurisdiction of the
France are parties to that Convention, without reservation, Court to deal with the merits of the case".and they "leave
and that Article IX accordinglyappears to constitute a basis
on which the jurisdiction of the Court might be founded. unaffected the right of the Gove~nmentsof Yugoslavia and
The Court however finds that it inust ascertain whether the France to submitarguments in respect of those questions".
breaches of the Convention alleged by Yugoslavia are The Court finally observes that "there is a fundamental at least not to aggravate or extend their dispute, regardless
distinctionbetweenthe questionof the acceptanceby a State of what might be the Court's coiiclusio~ion prima facie
of the Court's jurisdictionand thecompatibilityof particular jurisdiction pendingits final decision.
acts with international law". "The former requires consent; Nothing in the Statute or Rules of Court prohibits the
the latter questioncan onlybe reached when the Court deals Court:from so acting. Also, given the responsibilities of the
with the merits after having established its jurisdiction and Court:within the general framework for the maintenance of
having heard full legal arguments by both parties". It peace and security under the Charter, and under the Statute
emphasizes that "whether or not States accept the as an integralpart of the Charter,to issue sucha statementis
jurisdiction of the Court, they remain in any event
within the impliedpowers of the Court in the exercise of its
responsible for acts attributable to them that violate judicial functions.Obviously,the Court has failedto take an
internationallaw, includinghumanitarianlaw" and that"any oppoiZunityto niake its due contributionto the maintenance
disputes relating tothe legality of such acts are required to of peace and securitywhen that is most needed.
be resolved by peaceful means, the choice of which, Moreover, in spite of the request of Yugoslavia that the
pursuant to Article 33 of the Charter, is left to the parties".
In this context,"the parties shouldtake care not to aggravate Court exercise its powers under Article 75, paragraph 1, of
or extendthe dispute". The Court reaffirms that "when such the R.ules of Court to decide propi-io motrrYugoslavia's
request to indicateprovisional measures, the Court failed to
a dispute gives rise to a threat to the peace, breach of the exercise that power, in contrast to its decision to make use
peace or act of aggression, the Security Council has special of that power in the recent LrrGrrrndcase (Germany v. the
responsibilitiesunder Chapter V11of the Charter". United States of America) in a situation not as urgent as in
the pr.esentcase.
Declaration of Kce-President Weeramantiy
For these reasons, Judge Shi felt compelled to vote
JudgeWeeramantryexpressedthe view thateventhough againstoperativeparagraph(1) of the six Orders.
the Court did not issue provisional measures, it still had the
power to issue an appeal to both Parties to the effect that Declaration of'JzrdgeKororna
they should act in accordance with their obligations under In his declaration Judge Koronla observed that these
the Charter of the United Nations and other rules of were perhaps the most serious cases that have ever come
inteinational law includinghumanitarianlaw anddo nothing
to aggravateor extendthe conflict. before the Court for provisional measures. He stated that
It had this power as it was still seized of the case and jurisprudentially such measures were designed to prevent
violence, the use of force, to safeguard international peace
would be so seized of it until the hearing, and because this and as well as serving as an impol-tantpart of the
was not a case of manifest lackofjurisdiction. dis~ule settlement process under the Charter of the United
He thought this was the appropriate course to be Nations. In his view the indication of such measures
followed. The Court itself had referred to its profound therefore represents one of the most important functions of
concern with the human tragedy and loss of life involved
the Court.
and to its own responsibilities for the maintenance of peace But the granting of such a relief, he stressed.could only
and securityunder the Charterand the Statuteof the Court. be done in accordance with the Statute of the Court. In this
Such an appeal would also be well within the Court's regard, and in the light of the jurisprudence of the Court,
inherent jurisdiction as more fully explained in his where prima facie jurisdiction is absent or other
dissentingopinion in Y~rgoslrviav.Belgium.
circurnstances predominate, the Court will not grant the
Such an appeal would carry more value than the mere request forprovisionalmeasures.
referenceto thesematters in the Orderitself. Nevertheless, he considered the Court, being the
principal judicial organ of the United Nations, whose
Declarrrtion of Jtrdge Shi primary raison d'Ctre remains the preservation of
international peace and security, to be under a positive
Judge Shi agrees with the majority that in the cases of
Yugoslavia against France, Germany, Italy and the United obligation to contribute to theniaintenance of international
Kingdom there is no prima facie jurisdiction, and in the peace and security and to provide a judicial framework for
the resolution of a legal conflict, especially one which not
cases of Yugoslavia against Spain and the United States not only threatens international peace and security but also
even prima facie jurisdiction, for the indication of involves enormous human suffering and continuing loss of
provisionalmeasuresrequestedby the Applicant. life. He hadthereforejoined with the other Members of the
Nevertheless, he is of the opinion that, being confronted
with a situation of great urgency arising from the use of Court in calling for the peaceful resolution of this conflict
pursuant to Article 33 of the Charter, and in urging the
force in and against Yugoslavia, and upon receipt of the Parties not to aggravate or extend the dispute and to respect
requests by the Applicant for the indication of provisional international law, including humanitarian law and the
measures, the Court ought to have issued a general humanrights of all the citizensof Yugoslavia.
statement appealing to the Parties to act in compliancewith
their obligations under the United Nations Charter and all
other rules of internationallaw relevant to the situation,and Declaration of .Judge Vereshchetin Court ordered that it "[rleserves the subsequent procedure
for further decision", because he believes that those eight
The extraordinary circumstances in which Yugoslavia cases should also be removed at this stage from the General
made its request for interim measures of protection imposed List of the Court.
a need to react immediately. The Court sllould have
promptly expressed its profound concern over the unfolding Judge Oda considers that the Federal Republic of
hulnall misery, loss of life and serious violations of Yugoslavia is not a Member of the United Nations and thus
international law which by the time of the request were "Ot a party to the Statute the International of
Justice. The presented by the
already a matter of public knowledge. It is unbecoming foi- of Yugoslavia should therefore be declared inadmissible for
the principal judicial organ of the united ~ ~ ~ i ~ w~h~o,se this reason alone and should be removed from the General
very raison d.ttre is the peaceful resolution of international
dispul:es,to maintain silence in such a situation. Even if List of the Court.
ultimately the Court may come to the conclusionthat, dueto He nevertheless then goes on to discuss whether, if the
constraints in its Statute, i~:cannot indicate fi~llyfledged Federal Republic of Yugoslavia were to be considered a
provisional measures in accordance with Article 41 of the party to the Statute, it could have brought the present
Statutein relation to one or anotherof the respor.dentStates, Applicationson the basis of certain legal instruments.After
having examined the meaning of (i) the optional clause of
the Cloul-tis inherently eimpowered, at the very least,
immediatelyto call upon the Parties neither to aggravatenor the Court's Statute, (ii) the background to the 1930 and
to extend the conflict and to act in accordance with their 1931 instruments with Belgium and the Netherlands,
ob1iga:tion.sunder the Charter of the United Niitions. This respectively, and (iii) the 1948 Genocide Convention, he
power flows from its respo~isibilityfor the safeguarding of reaches the conclusion that none of these instruments grant
international law and froin inajor collsideratior~sof public the Courtjurisdiction in any of the ten Applications.
order. Such an authoritative appeal by the "World Court",
Judge Oda agrees with the Court that, as it has no basis
which would also be consist1:ntwith Article41 of its Statute of jurisdiction, it must reject the requests for the indication
and Article 74, paragraph 4, and Article 75, paragraph I, of of provisional measures in all ten cases. However, he
its Rilles, could have a sobering effect on the parties considers that, the Court having decided that it has no
involved in the lnilitaly conflict, unprecedented inEuropean jurisdiction to entertain the cases, notveit prima facie, that
history sincethe end of the SlecondWorld War. this can only mean that it has no jurisdiction whatsoever in
any of the cases. It follows, in Judge Oda's view, that not
The Court was urged to uphold the rule of' law in the
context of large-scale gross violations of international law, only in the cases of Spain and the United States, in which
includ.ingof the Charter of the United Nations. Instead of the Court states that it manifestly lacks jurisdiction, but in
acting expeditiously and, if necessary, proprio irtotzr,in its all the other cases, the Applications should be dismissed at
capacity as "the principal guardian of international law", the this stage, given that the Court has found that therc is not
majority of the Court, more than one month after the even a prima faciebasis ofjurisdiction.
requests were made, rejected then) in a sweeping way in Judge Oda also points out that, while the Coui-tmakes a
relation to all the cases brought before the Court, including distinctionbetween the Applications, even though they deal
those where the prima faciejurisdiction of the Court could virtually with the same subject matter, this distinction,
have been clearly established. Moreover, this clecisionhas which came about simply because of the different positions
been taken in a situation in which deliberate intensification which individual States happened to take towards the
of bombardment of the most heavily populated areas is various instruments that are to be applied concerning the
causing unabated loss of life ainong non-combatants and Court's jurisdiction, will lead to differingresultsncerning
physical and mental hann tmothe population in all parts of the future proceedings in each of the cases. In Judge Oda's
Yugoslavia. view this is an illogical situation, wllicll supports his
Fc~rthe foregoing reasons, Judge Vereshchetin cannot contention that all ten cases should be dismissed in their
concur with the inaction of the Court in this matter, entirety at this stage.
although he concedes that in some of the cases instituted by
the Applicant the basis of .theCourt's jurisdic~:ion,at this Sepai-ate opinion of Judge Parra-Arangnren
stage of the proceedings, is open to doubt, and in relation to
Spainandthe United States is non-existent. Judge Parra-Arangurenrecalls that Yugoslaviamaintains
that "the bombing of Yugoslavpopulated areas constitute a
breach of Article I1 of the Genocide Convention", a
Separate opii~ioitofJudge O(1u contention denied by the Respondent; that a legal dispute
Judge Oda supports the decision of the Court in exists between the Parties because of the existence of "a
disn1i:ssiilgthe requests for the indication of provisional situation in which the two sides hold clearly oppositeviews
measures by the Federal Republic of Yugoslavia against ten concerning the question of the performance or non-
respolideiitStates.While favouring the decision of the Court performance of certain treaty obligations", as the Court
to remove the case from the GeneralList of the Court in the stated in its decision of 11 July 1996 (Applicntioil of the
Coilveittioizon fhePreventioi~aizdPzlrzishiizelo fthe Ci-iine
cases of Spain and the United States. Judge Oda voted oj'Genocide(Bosnia andHerzegoviiln 11.17~~gosl(~vI .~.),.
against the decision in the other eight cases in which the
Repoi-fs1996 (10,pp. 614-615, para. 29); and that accordingto Article IX of the Genocide Convention, "disputes affected, a high standard of humanitarian concern in the
betweenthe ContractingPartiesrelating to the interpretation proceedings for the indication of interim measures has been
or fulfilment of the present Convention" shallbe submitted formed, a standard which commanded sufficient inherent
to the Intei~lational Court of Justice. Therefore, in his strength to brush aside some relevant, both procedural and
opinion the Court has prima facie jurisdiction to decide material, rules governing the institution of provisional
upon the provisionalmeasuresrequestedby Yugoslavia. measures (e-~anzplicawa, the LaGrrrird case). Thus,
Yugoslavia requested the Court to indicate that the humanitarian considerations, independentlyfrom the nonns
of international law regulating human rights and liberties,
Respondeilt"shall cease immediatelythe acts of use of force
and shall refrain from ally act of threat or use of force have, in a way, gained autonomous legal significance;they
against the Federal Republic of Yugoslavia". However, the have transcended the moral and philanthropic sphere, and
threat or use of force against a State cannot in itself enteredthe sphereof law.
constitute an act of genocide within the meaning of the In the case at hand, it seemsthat "humanitaiian concern"
Genocide Convention. Consequently, Yugoslavia is has lost the acquired autotionlous legal position. The fact
requestingthe indicationof provisionalmeasuresthat do not needs to be stressed in view of the special circumstancesof
aim to guarantee its rights under the Genocide Convention, this case. Unlike the recent practice of the Court.
i.e., the right not to suffer acts which may be characterized "humanitarian concern" has as its object thefate of an entire
as genocide crimes by the Convention. Therefore, in the nation. in the literal sense. The Federal Republic of
opinion of Judge Pam-Aranguren, the measures requested Yugoslavia and its national and ethnic groups have been
by Yugoslavia shouldnot be indicated. subjected for more than two n~onths now to continued
attacks of a very strong, highly organized airnnada of the
Dissei~tiilgopinion of Judge Kreca most powerful States of the world. At the same time, the
In his dissenting opinion Judge Kreca points out the arsenal used in the attacks on Yugoslavia contains also
weaponswhose effects have no limitationseither in spaceor
followingrelevant issues: in time such as depleted uranium which cause far-reaching
Judge Kreca finds that none of the equalizationfunctions and irreparable damage to the health of the whole
of the institution of judge ad hoc have been met in this populatioa.
particular case. The letter and spirit of Articleparagraph
2, of the Statute of the Court, applied to this particular case, Judge Kreca is of the opinion that the extensive use of
aimed force, in particular if it is used against objects and
imply the right of Yugoslavia, as the applicant State, to meaiis constitutiilg conditions of normal life, can be
choose as many judges ad hoc to sit on the Bench as is conducive to "inflicting on the group conditions of life"
necessary to equalize thepositio~iof applicant State and that bringing about "its physical destruction" (Genocide
of the respondent States which have judges of their Convention,Article 11).
nationality on the Bench andwhich share the same interest.
In coizcreto, the inherent right to equalization in the Judge Kreca goes on to say that it can be argued that
con~position of the Bench. as an expression of a such acts are in the function of degrading the military
capacity of the Federal Republicof Yugoslavia. But suchan
fundamental rule of equality of parties, ineaiis that the explanation can hardly be regarded as a serious argument.
Federal Republic of Yugoslavia should have the right to For the spiralof such a lineof thinkingmay easily come to a
choose five judges ad hoc, since even five out of ten point when, having in mind that militaiy power is after all
respondent States (United States, the United Kingdom,
France, Germany, and the Netherlands) have their national comprised of people, even Inass killing of civilians can be
judges sittingon the Bench. claimed to constitute some sort of precautionary measure
that should prevent the maintenance or, in case of
At the same time, accordingto coherentjurisprudence of mobilization,the increaseof militarypower of a State.
the Court, none of the respoildent States were entitled to Judge Kreca also points out that, in the incidental
appoint a judge ad hoc (Territorial Jlrrisdictioizof'tlze
bztetnational Coinn~issiott of the River Oder; Customs proceedings the Court cannot and should not concern itself
RkgimehefiveeizGermanyandA~u fria). with the definitivequalificationof the intenttoiiiposeupon
the group conditions in which the survival of the group is
There is no need to say that the above-mentionedissues threatened. Having in mind the purpose of provisional
are of upnlost specific weight in view of the fact that measures, it can be said that at this stage of the proceedings
obviously the meaning of such issues is not restricted to the it is sufficient to establish that, in the conditions of
procedure, but that it may have a far-reaching concrete extensive bombing, there is an objective risk of bringing
meaning.
about conditions in which the survival of the group is
Judge Kreca finds that in the recent practice of the threatened.
Court. in particular that in which individuals were directly
Summary of the Order of 2 June 1999