Summary of the Order of 2 June 1999

Summaries of Judgments, AdNot an official documentrs of the Internationa
l Court of Justice

CASE CONCERNING LEGALITY OF lJSE OF FORCE (YUGOSLAVIA v. ITALY)
(PROVISIONA,L MEASURES)

Order of 2 June 1999

In an Order issued in the case concerning Legality of THE COURT,
Use of Force (Yugoslavia v. Italy), the Court rejected by (1) By thirteenvotes to three,
thirteen votes to three the request for the i:ndicationof
provisional measures submitteby the Federal Republic of Rejects the request for the indication of provisional
Yugclslavia(FRY).The Coiirtalso stated that itcould not at measures submitted by the Federal Republic of
Yugoslaviaon 29April 1999;
that stage of proceedings, accede to Italy's request that the IN FAVOUR. Vice-President Weeramantry, Acting
case be removed from the List. It thus remained seizedof President; President Schwebel; Judges Oda, Bedjaoui,
the case. The subsequent procedure had been reserved for Guillaume, Ranjeva, Herczegh, Fleischhauer. Koroma,
furth~:rdecisionby fifteenvotes to one.
The Court was composed as follows: Vice-President Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc
Weeramantry,Acting President;PresidentSchwebel;Judges Gaja;
Oda, Bedjaoui, Guillaunle, Ranjeva, Herczegh, Shi, AGAINST: Judges Shi, Vereshchetin; Judge ad hoc
Kreca;
Fleischhauer, Koroma, Vereshchetin, Higg.ins, Parra- (2) By fifteen votesto one,
Aranguren, Kooijmans; Jidges ad hoc Gaja, Kreca;
RegistrarValencia-Ospina. Reserves the subsequent procedure for further
decision.
IN FAVOUR: Vice-President Weeramantry, Acting
President; President Schwebel; Judges Bedjaoui,
Guillaume, Ranjeva, Herczegh, Shi. Fleischhauer,
The complete text of -theoperative paragraph of the
Order is as follows: Koroma, Vereshchetin, Higgins, Parra-Aranguren,
"39. For thesereasons, Kooijmans;Judgesad hoc Gaja,Kreca;
AGAINST:JudgeOda."

Continued on next page Tht:Court then points out tliatit "does not automatically

have jurisdiction over legal disputes between States" and
that "one of the fundamentalprinciples of its Statute is that
Vice-President Weeramantry, Acting President, Judges it cannot decide a dispute between States without the
Shi. Koronia and Vereshchetin, and Judge ad hoc Gaja conseiitof those States to itsjurisdiction". It cannot indicate
appendeddeclarationsto the Order of the Court.Judges Oda provisional measures without its jurisdiction in the case
and Parra-Aranguren appended. separate opinions to the being e:stablishedprima facie.
Order of the Court. Judge ad hoc Kreca appended a
dissentingopinionto the Order of the Court. Concerning Article IX of the Genocide Convention, the
Coui?states that it is not disputed that both Yugoslavia and
Italy are parties to that Convention,withoutreseivation, and
thatArticle IX accordingly appears to constitute a basis on
which the jurisdiction of the Court might be founded. The
Court however finds that it niust ascertain whether the
breaches of the Conventioii alleged by Yugoslavia are

On 29 April 1999 Yugoslavia filed an Application capable of falling within the provisions of that instrument
instituting proceedings against Italy "for violation of the and whether, as a consequence, the dispute is one over
obligation not to use force", accusing that State ofboiiibing which theCourtmight havejurisdiction I-rrtionenlnteriaeIn
Yugoslav territory "together with other Member States of its Application, Yugoslavia contends that the subject of the
NATO". On the same day, it submitted a request for the dispute concerns inter alia "acts of the Italian Republic by
which it has violated its international obligation ...not to
indication of provisional measures, asking the Court to deliberately inflict conditions of life calculated to cause the
order Italy to "cease immediately its acts of use of force" physical destruction of a national group". It contends that
and to ''refrain from any act of threat or use of force"
againstthe FRY. tlie sustained and intensive bombing of the whole of its
As a basis for the jurisdiction oftlie Court, Yugoslavia territory, including the most heavily populated areas,
invoked Article 1Xof the Conve~itionon the Preventionand constitutes"a serious violation of ArticleI1of the Genocide
Convention", thatit is the Yugoslav nation as a whole and
Punishment of the Crime of Genocide, adopted by the as such that is targeted and that the use of certain weapons
United Nations General Assembly on 9 December 1948,as whose long-tern1hazards to health and the environment are
well as Article 38, paragraph 5, of the Rules of Court. already known, and the destruction of the largestpart of the
Article IX of the Genocide Coilvention provides tliat
disputes between the contracting parties relating to the country's power supply system, with catastrophic
interpretation, application or fulfilment of the Convention consequences of which the Respondent must be aware,
shall be submitted to the International Court of Justice. As "impl[y] the intent to destroy, in whole or in part", the
Yugoslav national group as such. For its pal?,Italy contends
to Article 38, paragraph 5, of the Rules of Court, it provides that "l:m]anifestly, both the subjective element and the
that when a State files an application against another State objectiveelement of the crime of genocideare lacking",that
which has not accepted the jurisdiction of the Court, the the "action takenby the NATO Member States is directed at
applicationis transmittedto that other State,but no action is
taken in the proceedings unless and until that State has the territory of the [FRY] and not at its people" and that
accepted the Court's jurisdiction for the purposes of the there is "absence of ...deliberate and intentional desire to
case. achieve [the]inherentobjective [ofthe crime]". It appearsto
the Court that, according to the Convention, the essential
characteristic of genocide is the intended destruction of a
national,ethnical,racial or religious group;the Court further
states that"the threat or use of force against a State cannot
In its Order, the Court first emphasizesthat it is "deeply in itself constitute an act of genocide within the meaning of
concerned with the huinan tragedy, the loss of life, and the
enormous suffering in Kosovo which fornl the background" Article:I1 of the Genocide Convention". It adds that in its
of the dispute and "with the continuing loss of life and opinion, it does not appear at the present stage of the
human sufferingin allparts of Yugoslavia". It declaresitself proceedingsthat the bombingswhich forn~the subjectof the
"profoundly concernedwith the use of force in Yugoslavia", Yugoslav Application "indeed entail the element of intent,
which "under the present circumstances ... raises very towards a group as such, required by the provision"
mentioned above. The Court considers therefore that it is
serious issues of international law". While being "mindful not in a position to find, at this stageof the proceedings,that
of the purposes and principles of the UnitedNations Charter
and of its own responsibilities in the maintenance of peace the acts imputed by Yugoslavia to Italy are capable of
and security under the Charter and [its] Statute", the Court co~ningwithin the provisions of the Genocide Convention;
"deems it necessary to emphasize that all parties before it aiid Article IX cannot accordingly constitute a basis on
must act in conformity with their obligations under the which the jurisdiction of the Court could prima facie be
United Nations Charter and other rules of internationallaw, foundedin the case.
includinghumanitarianlaw". As to Article 38, paragraph 5, of tlie Rules of Court, the

Court stresses that, in the absence of consent by Italy, it
cannotexercisejurisdiction in the case, even primafacie. 'The Court concludes that it "lacks prima facie Nevertheless,he is of the opinion tliat, beingconfronted
jurisdiction to entertain Yugoslavia's App1ical:ion"aiid that with a situation of great urgency arising from tlie use of

it '"cannot therefore indicate any provisiclnal measure force in and against Yugoslavia, and upon receipt of the
whatsoever". However, the findings reached by tlie Court requests by the Applicant for the indication of provisioiial
"in no way prejudge the cluestionof the juridiction of the measures, tlie Court ought to have issued a general
Court to deal with the 1ne:ritsof the case" and they "leave statementappealing to the Parties to act in compliancewith
unaffected the right of the Governnients of Yilgoslaviaand their obligations under the United Nations Charter and all
Italy to submitargumentsinrespect of those questions". other rules of international'law relevant tohe situatioii.and
at least not to aggravate or extend their dispute, regardless
'TheCourt finally observes that "there is a hndamental
distinctionbetweenthe questionof the accepta~iceby a State of what inight be the Court's conclusion on prinia facie
of the Court's jurisdictionand the coinpatibilityof particular jurisdiction pendingits final decision.
acts with international law". "The former requires consent: Nothing in the Statute or Rules of Court prohibits tlie
the latter questioncan only be reached when the Courtdeals Court from so acting. Also, given theresponsibilities of the
with the merits after having established its jmisdiction and Court within tlie general framework forthe inaintenaticeof

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 suchastatementis
jurisdiction of the Court, they reinain in any event within tlieimpliedpowers of the Coui-tin the exerciseof its
responsible for acts attributable to them that violate judicial functions.Obviously,the Court has failedto take an
inteinational law, includinghumanitarianlaw" and that"any opportunityto make itsdue coiitributioiito the inaiiiteiiance
disputes relating to the legality of such actsare required to of peaceaiidsecuritywhenthat isnlostneeded. .
be -resolved by peaceful means, the choice of which,
Moreover, in spite of tlie request of Yugoslavia that the
pursuant to Article 33 of the Charter, is left to the parties". Court exercise its powers underArticle 75, paragraph 1,of
In this context,"the parties shouldtake care not to aggravate the Rules of Court to decide propi.io iizotzrYugoslavia's
or extend the dispute". The Court reaffirms tha.t"when such request to indicate provisionalmeasures, 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 LuGi-crildcase (Geimany 11the
responsibilitiesunder ChapterVII of the Charter".
United States of America) in a situation not as urgent as in
thepresent case.
Declarationof Vice-PresideiztWeerunianti:~ For these reasons, Judge Shi felt coinpelled to vote
againstoperativeparagraph (1)of the six Orders.
Judge Weeramantryexpressedthe view that even though
the Court did not issue pro,visionalmeasures, it still had the
power to issue an appeal to both Parties to tlie effect that
they should act in accordance with their obligations under
the Charter of the United Nations and other rules of In his declaration Judge Koroma observed that these
internationallaw includinghumanitarianlaw and do nothing were perhaps the most serious cases that have ever collie
before the Court for provisional measures. He stated tliat
to aggravateor extendthe conflict. jurisprudentially such measures were designed to prevent
It had this power as it was still seized of the case and violence, the use of force, to safeguard iilteinational peace
would be so seized of it until the hearing, and because this and security as well as serving as an important part of the
was not a case of manifest lackofjurisdiction. dispute settlenient process under the Charter of the United

IIe thought this was the appropriate course to be Nations. In his view the indication of such measures
follc~wed.The Court itself had referred to its profound therefore represents one of the inost impoi-tantfunctioiis of
concern with the human tragedy and loss of life involved the Court.
and to its own responsibilitiesfor the maintenanceof peace But the granting of such a relief. he stressed, could only
and securityunder the Charterand the Statuteof the Court. be done in accordancewith the Statute of tlie Coui-t. I11this

Such an appeal would also be well within the Court's regard, and in the light of the jurispr~~denceof the Court,
inherent jurisdiction as more hlly explained in his where prima facie jmisdiction is absent or other
dissentingopinion in Yugo:ilaviuv.Belgium. circumstances predominate, tlie Coui-t will not grant the
Such an appeal would carry more value than the mere requestforprovisionalmeasures.
referenceto thesematters i~n the Orderitself. Nevertheless, he considered the Coui-t, being the
principal judicial organ of tlie United Nations, whose

Declamtioit ofJlrdgeShi primary raison d'etre reniains the preservation of
international peace and security, to be under a positive
Judge Shi agrees with the majority that in the cases of obligation to contribute to the maintenance of international
Yugoslavia against France, Germany, Italy and the United peace and security and to provide a judicial framework for
Kingdom there is no prima facie jurisdiction., and in the the resolution of a legal conflict, especially oiie which not
cases of Yugoslavia against Spain and theUnited Statesnot only threatens interiiational peace and security but also
even prima facie jurisdiction, for the iiidication of
provisional measuresrequestedby the Applicant. involves enormous huiiian suffering and coiitiiiuingloss oflife. He had thereforejoined withthe other Members of the Declaration of Judge Gaja
Court in calling for the peaceful resolution of this conflict
pursuant to Article 33 of the Charter, and in urging the In his declaration concerning the Order in tlie case
Parties not to aggravate or extend the dispute and to respect concerning Legali@ of Use of Force (Yzrgoslaviav. Ita[y),
Judge Gaja gave some explanationwhy this case should not
international law, including humanitarian law and the be removed from the List. In his view anOrder to remove a
humanrights of alithe citizensof Yugoslavia. case should be given when thejurisdictional basis that is
invoked by the applicant State is n~aiiifestlyinexistent.
Declaration of Judge Vereshchetin
When no reasonable connection exists between the dispute
The extraordinary circumstances in which Yugoslavia submitted to the Court and the treaty including a
made its request for interim measures of protection imposed jurisdictional clause which the Applicant invokes, the same
a need to react immediately. The Court should have app1it:s if no reasonable connection could conceivably
promptly expressed its profoundconcern over the unfolding appearat a subsequentstageof the proceedings.

human misery, loss of life and serious violations of
international law which by the time of the request were Separate opii1iott of JzrdgeOda
already a matter of public knowledge. It is unbecoming for Ju-dge Oda supports the decision of the Court in
the principal judicial organ of the United Nations, whose
very raison dYCtre is the peaceful resolution of iiiternational dismissing the requests for the indication of provisional
disputes, to maintain silence in such a situatioii. Even if measures by the Federal Republic of Yugoslavia againstten
ultimatelythe Court may cometo the conclusionthat, dueto respondentStates.While favouringthe decisionof the Court
to remove the case from the GeneralList of the Court in the
constraints in its Statute, it cannot indicate fully fledged cases of Spain and the United States, Judge Oda voted
provisional measures in accordance with Article 41 of the against the decision in the other eight cases in which the
Statute in relation to one or anotherof the respondent States, Court:ordered that it "[r]eserves the subsequent procedure
the Court is inherently empowered, at the very least,
immediatelyto call upon thePartiesneither to aggravatenor for fiirther decision", because he believes that those eight
to extend the conflict and to act in accordance with their cases should also be removed at this stage from the General
obligations under the Charter of the United Nations. This List of the Court.
Judge Oda considers that the Federal Republic of
power flows from its responsibility for the safeguarding of Yugoslavia is not a Member of tlie United Nations aiid thus
international law and from major considerations of public
order. Such an authoritative appeal by the "World Court", not a. party to the Statute of the International Court of
which wouldalso be consistentwith Article 41 of its Statute Justice. The Applicationspresented by the FederalRepublic
and Article 74, paragraph 4, and Article 75, paragraph 1,of of Yugoslavia should therefore be declared inadmissible for
its Rules, could have a sobering effect on the parties this reason alone and should be removed from the General
involved in the military conflict,unprecedentedin European List of the Court.
He nevertheless then goes on to discuss whether, if the
history sincethe end of the SecondWorldWar.
The Court was urged to uphold the rule of law in the Federal Republic of Yugoslavia were to be considered a
context of large-scale gross violations of international law, party to the Statute, it could have brought the present
including of the Charter of the United Nations. Instead of Applicationson the basis of certain legal instruments.After
acting expeditiously and, if necessary,proprio motu, in its having examined the meaning of (i) the optional clause of
the Court's Statute, (ii) the background to tlie 1930 and
capacity as "the principal guardianof internationallaw", the 1931 instruments with Belgium and the Netherlands,
majority of the Court, more than one month after the respectively, and (iii) the 1948 Genocide Convention, he
requests were made, rejected them in a sweeping way in
relation to all the cases brought before the Court, including reaches the conclusion that none of these instrumelitsgrant
those where the prima faciejurisdiction of the Court could the Courtjurisdiction in any of thetellApplications.
have been clearly established. Moreover, this decision has Judge Oda agrees with the Court that, as it has no basis
been taken in a situation in which deliberate intensification of ju~:isdiction,it must reject the requests for the indication
of provisional measures in all ten cases. However, he
of bombardment of the most heavily populated areas is
causing unabated loss of life amongst non-combatants and considers that, the Court having decided that it has no
physical and mental harm to the population in all parts of jurisdiction to entertain the cases, not even prima facie, that
Yugoslavia. this can only mean that it has nojurisdiction whatsoever in
For the foregoing reasons, Judge Vereshchetin cannot any of the cases. It follows, in Judge Oda's view,that not
only in the cases of Spain and the United States. in which
concur with the inaction of the Court in this matter, the C:ourtstates that it manifestly lacks jurisdiction, but in
although he concedes that in some of the cases instituted by all the other cases, the Applications should be dismissed at
the Applicant the basis of the Court's jurisdiction, at this
stage of theproceedings, is open to doubt, and in relation to this stage, given that the Court has found that there is not
Spainand the United Statesis non-existent. even a prima faciebasis ofjurisdiction.
Judge Oda also points out that, while theCourt makes a
distinction between the Applications, even though they deal
virtually with the same subject matter, this distinction,which came about simply because of the differentpositions Federal Republic of Yugoslavia should have the right to
which individual States 11.appenedto take towards the choose five judges ad hoc, since even five out of ten
various instruments that are to be applied concerning the respondent States (United States, the United Kingdom,
Court's jurisdiction,will leadto differingresults concerning France, Germany, and the Netherlands) have their national
the f~~tureproceedings in ea.chof the cases. In ;fudgeOda's judges sittingon theBench.
view this is an illogical situation, which supports his
At the sametime, accordingto coherentjurisprudence of
contention that all ten cases should be dismissed in their the Court, none of the respondent States were entitled to
entiretyat this stage. appoint a judge ad hoc (Territorial Jurisdictioil of the
Intei.ilatioiza1Conziilission of the River Oder; Custonts
Separate opiizioizoj'Judge Par-ra-Araiz;:uren RkgintebetweenGerr~taily andAustria).

JudgeParra-Arangurenrecallsthat Yugoslaviamaintains There is no need to say that the above-mentionedissues
that "'thebombing of Yugoslav populated areas constitute a are of upinost specific weight in view of the fact that
breach of Article I1 of the Genocide Convention", a obviously the meaningof such issues is not restricted to the
contention denied by the Respondent; that a legal dispute procedure, but that it inay have a far-reaching concrete
meaning.
exists between the Parties because of the existence of "a
situation in which the two sides hold clearly opposite views Judge Kreca finds that in the recent practice of the
concerning the question of the performance or non- Court, in particular that in which individuals were directly
performance of certain treaty obligations", as the Court affected, a high standard of humanitarian concern in the
stated in its decision of 11.July 1996 (Application of the proceedings for the indicationof interim measures has been
Conventionoil thePreventioizand PztrtishmeittI?ftlzeCrinre formed, a standard which commanded sufficient inherent
of Genocide (BosniarrrzdH.crzegovinav. Yztgos.laviu)I,.C.J. strength to brush aside some relevant, both procedural and
material, rules governing the institution of provisional
Reports 1996 (II),pp. 614-615,para. 29); and thataccording
to A.rticle IX of the Genocide Convention, "disputes measures (exuinpli causn, the LaGrand case). Thus,
between the CoiltractingParties relatingto the interpretation humanitarian considerations,independently froin the norms
or fulfilment of the present Convention" shall be submitted of international law regulating human rights and liberties,
to the Inteinational Court: of Justice. Therefore, in his have, in a way, gained autonomous legal significance; they
opinion the Court has prima facie jurisdiction to decide have transcended the moral and philanthropic sphere, and
enteredthe sphereof law.
upontheprovisional measuresrequestedby Yuj;oslavia.
Yugoslavia requested -the Court to indic.ate that the In the case at hand, it seemsthat "humanitarian concern"
Respondent"shall cease imlmediatelythe acts of use offorce has lost the acquired autonomous legal position. The fact
and shall refiain froill any act of threat or use of force needs to be stressed in view of the special circumstancesof
against the Federal Republic of Yugoslavia". However, the this case. Unlike the recent practice of the Court,
threat or use of force against a State cannot in itself "humanitarian concern"has as its object the fate of an entire
nation, in the literal sense. The Federal Republic of
const.itute an act of genocide within the meaning of the Yugoslavia and its national and ethnic groups have been
Genocide Convention. .Consequently, Yu,goslavia is
requtsting the indicationof provisionalmeasuresthat donot subjected for more than two months now to continued
aim to guarantee its rights under the Genocide Convention, attacks of a very strong, highly organized air armada of the
i.e., the right not to suffer acts which may be characterized most powerful States of the world. At the same time, the
as genocide criines by the Convention. Therefore, in the arsenal used in the attacks on Yugoslavia contains also
opinion of Judge Parra-Arimguren, themeasures requested weapons whoseeffectshave nolimitationseither in space or
in time such as depleted uranium which cause far-reaching
by Yugoslaviashould notbe indicated. and irreparable damage to the health of the whole

Disserrtirzgopi,r~ionofJudge Krem population.
Judge Kreca is of the opinion that theextensive use of
In his dissenting opinion Judge Kreca points out the armed force, in particular if it is used against objects and
followingrelevant issues: ineans constituting conditions of normal life, can be
Judge Kreca finds thatnone of the equalizationfunctions conducive to "inflicting on the group conditions of life"
of the iilstitution of judge ad hoc have been met in this bringing about "its physical destruction" (Genocide

particular case. The letter and spirit of Article 3.1,paragraphConvention,Article 11).
2, of'the Statute of the Court, appliedto this particular case, Judge Kreca goes on to say that it can be argued that
imply the right of Yugos'lavia,as the applicant State, to such acts are in the function of degrading the military
choose as many judges ad hoc to sit on the Bench as is capacityof the Federal Republicof Yugoslavia.But suchan
necessary to equalizethe position of applicant Stateand that explanation can hardly be regarded as a serious argument.
of the respondent States which have judges of their
nationality on the Bench and whichshare the same interest. Forthe spiralof sucha lineof thinking mayeasily come to a
point when, having in mind that military power is after all
Irz conclrto, the inherent right to equalization in the comprised of people, even mass killing of civilians can be
coml?osition of the Bench, as an expression of a claimed to constitute solile sort of precautionary measure
fundamental rule of equality of parties, means that thethat should prevent the maintenance or, in case of threatened. Having in mind the purpose of provisional
mobilization,the increaseof militarypower of a State. measures, it can be said that at this stage of the proceedings

Judge Geca also points out that, in the incidental it is sufficient to establish that, in the conditions of
proceedings the Court cannot and should not concern itself extensive bombing, there is an objective risk of bringing
with the definitivequalificatiol~of the intentto impose upon about conditions in which the survival of the group is
the group conditions in which the survival of the group is threatened.