Summary of the Order of 2 June 1999

Summaries of Judgments, Advisory Opinions and Orders of the Internationa
l Court of Justice
Not an official document

CASE CONCERNING LEGALITY OF USE OF FORCE (YUGOSLAVIA v.
CANADA) (PROVISIONAL MEASURES)

Order of 2 June 1999

In an Order issued in the case concerning Legality of Judge Koroina appended a declarationto the Order of
Use of Force (Yugoslavia v. Canada), the Court rejected by the Court.JudgesOda, Higgins, Parra-Aranguren and
twelve votes to four the request for the indication of Kooijmans appended separateopinionsto the Order of the

provisional measures submitted by the Federal Republic of Court.Vice-President U'eeramantry,ActingPresident,
Yugoslavia (FRY). The Court also stated that it remained Judges Shi and Vereshchetin,and Judge ad hoc Kreca
seized of the case. It reserved the subsequentprocedure for appendeddissentingopinionsto the Order of the Court.
furtherdecision by fifteen votes to one.
The Court was composed as follows: Vice-President

Weeramantry,Acting President;PresidentSchwebel;Judges
Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra- Backgrozind ivformntion
Aranguren, Kooijmans; Judges ad hoc Lalonde, Kreca; On 29 April 1999 Yugoslavia filed an Application
RegistrarValencia-Ospina.
institutingproceedings against Canada "for violation of the
obligation not to use force", accusingthat State of bombing
Yugoslav territory "together with other Member States of
NATO". On the same day, it submitted a request for the
The complete text of the operative paragraph of the indication of provisional measures. asking the Court to
Order reads as follows: order Canada to "cease immediatelyits acts of use of force"
and to "refrain from any act of threat or use of force"
"47. Forthese reasons,
THE COURT, againstthe FRY.
(1) By twelvevotesto four, As a basis for the jurisdiction of the Court, Yugoslavia
invoked the declarations by which both States had accepted
Rejects the request for the indication of provisional the compulsoryjurisdiction of the Court in relation to any
measures submitted by the Federal Republic of other State accepting the same obligation (Article 36,
Yugoslaviaon 29 April 1999; .
IN FAVOUR: President Schwebel; Judges Oda, paragraph 2, of the Statute of the Court), and Article IX of
the Convention on the Prevention and Punishment of the
Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer, Crime of Genocide, adopted by the United Nations General
Koroma, Higgins, Parra-Aranguren, Kooijmans; Judge Assembly on 9 December 1948.
ad hoc Lalonde; Article IX of the Genocide Convention provides that
AGAINST: Vice-President Weeramantry, Acting
President; Judges Shi, Vereshchetin; Judge ad hoc disputes between the contracting parties relating to the
Kreca; interpretation, application or fulfilment of the Convention
shall be submittedto the InternationalCourt of Justice.
(2) By fifteenvotes to one,
Reserves the subsequent procedure for further Reasoiling of the Court
decision.
IN FAVOUR: Vice-president Weeramantry, Acting In its Order, the Court first emphasizes that it is "deeply
President; President Schwebel; Judges Bedjaoui, concerned with the human tragedy, the loss of life, and the

Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, enormous suffering in Kosovo which fonn the background"
Koroma, Vereshchetin, Higgins, Parra-Aranguren, of the dispute and "with the continuing loss of life and
Kooijmans;Judges ad hoc Lalonde,Kreca; human sufferingin allparts of Yugoslavia". It declaresitself
AGAINST: Judge Oda." "profoundly concernedwith the use of force in Yugoslavia",
which "under the present circutnstances ...raises very
*

Continued on nexpage

78serious issues of international law". While being:"mindful territory, including the most heavily populated areas,
of the purposes andprinciples of the United Nations Charter constitutes"a seriousviolation of Ai-ticleI1of the Genocide

and of its own responsibilities in the maintenance of peace Convention", that it is the Yugoslav nation as a whole and
and security under the Charter and [its] Statute", the Court as such that is targeted and thatthe use of certain weapons
"deems it necessary to emphasize that all parties;before it whose long-termhazards to health and the environmentare
must act in conformity witli their obligations under the already known, and thedestructionof the largest part of the
United Nations Charter and other rules of internationallaw, country's power supply system, with catastrophic
includinghumanitarianlaw". consequences of which the Respondent must be aware,

The Court then points out thatit "does not automatically "impl[y] the intent to destroy, in whole or in part", the
have jnrisdictioii over legal disputes between States" and Yugoslav national group as such. For its part, Canada
that "one of tlie fundamental principles of its Statute is that contends that "the essence of genocide is irzteiltionand
it cannot decide a dispute between States without tlie destruction - the destruction of entire populations", that
consent:of those Statesto itsjurisdiction". It cannot indicate the Applicant"did noteven attempt to address the question
provisional measures without its jurisdiction in the case of intent" and that the concept of genocide cannot be
equatedwith the use of force or even aggression. It appears
being establishedprima facie.
Coclcerningthe first basis of jurisdiction invoked, the to the Court that,accordiilgto the Convention,the essential
Court observes that under the terms of its daclaration, characteristic of genocide is the intended destruction of a
Yugoslavia limits its acceptance of the Court's compulsory national,ethnical,racial or religiousgroup;the Court further
jurisdiction to "disputesarisin.gor which mayarise after the states that "the threat or use of force against a State cannot
in itself constitute an act of genocide within the meaning of
signature of the present Declaration, with regard to the Article I1 of the Genocide Convention". It adds that in its
situationsor facts subsequentto this signature". It statesthat opinion, it does not appear at the present stage of the
in order to assess whether it hasjurisdiction in the.case, it is
sufficientto decide whether the disputebrought to the Court proceedings that thebombingswhich fornlthe subjectof the
"arose" beforeor after 25 April 1999,the date on which the Yugoslav Application "indeed entail the element of intent,
declaration was signed. It finds that the bombings began on towards a group as such, required by the provision"
24 March 1999and have beell conducted continul3uslyover mentioned above. The Court considers therefore that it is
not in a positionto find, at this stageof the proceedings,that
a period extendingbeyond25 April 1999. the acts imputed by Yugoslavia to Canada are capable of
The Court has thus no d.oubtthat a "legal dispute ...
'arose' between Yugoslavia and [Canada], as it did also coming within the provisions of the Genocide Convention;
with the other NATO member States, well before 25 April and Article IX cannot accordingly constitute a basis on
1999". The Court concludes that the declaration:; made by which the jurisdiction of the Court could prima facie be
the Parties do not constitutea basis on which thejurisdiction foundedinthe case.
The Court concludes that it "lacks prima facie
of the CIourtcouldpriina faciebe foundedinthe ciise. ,jurisdictionto entertain Yugoslavia'sApplication" and that
As :toCanada's argumentsthat Yugoslavia'scleclaration
acceptiingthe compulsory jurisdiction of the Court "is a it ''cannot therefore indicate any provisional measure
transparent nullity" and that Yugoslavia is nota member whatsoever". However, the findings reached by the Court
State of the United Nations in view of United Nations "in no way prejudge the questionof the jurisdiction of the
Court to deal with the merits of the case" and they "leave
Security Council resolution 777 (1992) and United Nations unaffectedthe right of the Governnlents of Yugoslavia and
General Assenlbly resolution 4711(1992), nor a party to the Canadato submitargumentsin respect of those questions".
Statute of the Court, the Court maintains that it need not
conside:rthis question, taking into account its finding that The Court finally observes that "there is a fundamental
the declarationsdo not constitutea basis ofjurisdi1:tion. distinction betweenthe questionof the acceptanceby a State
Cor~cerningArticle IX of the Genocide Convention,the of theCoui-t'sjurisdiction and the coinpatibilityof particular
acts with international law". "The former requires consent;
Court states that it is not disputed that both Yugoslavia and the latterquestion can onlybe reached whenthe Courtdeals
Canada.are parties to that Co.nvention,without reservation, with the merits after having established its jurisdiction and
and that Article IX according:lyappearsto constitutea basis having heard full legal arguments by both parties". It
on which the jurisdiction of the Court might be:founded.
The Cc~urthowever finds that it must ascertain whether the emphasizes that "whether or not States accept the
breaches of the Convention alleged by Yugoslavia are ~urisdiction of the Court, they remain in any event
capable of falling within the provisions of that istrument responsible for acts attributable to them that violate
internationallaw, including humanitarianlaw" and that"any
and whether, as a consequence, tile dispute is one over disputes relating to the legality of such acts are required to
which the Court mighthavejurisdiction rntionematerine.In be resolved by peaceful means, the choice of which,
its Application, Yugoslavia coiltends that the sub,jectof the pursuant to Article 33 of the Charter, is left to the parties".
dispute concerns inter alia "acts of Canada by wliich it has
violated its international obligation ...not to daliberately In this context,"the parties shouldtake care not to aggravate
inflict conditions of life calculated to cause the physical or extend the dispute". The Court reaffirms that "when such
destruction of a national group". It contends that the a dispute gives rise to a threat to the peace, breach of the
peace or act of aggression,the Security Council has special
sustained and intensive bo.tnbing of the whole of its responsibilitiesunder Chapter VIIof the Charter". Declarution ofJudg- Koronta the Court's Statute, (ii) the background to the 1930 and
In his declaration Judge Koroma observed that these 1931 instruments with ~el~iu~ and tlie Netherlands,
were perhaps the most serious cases that have ever conie respectively, and (iii) the 1948 Genocide Convention, he
reaches the conclusion that none of these instruments grant
before the Court for provisional measures. He stated that the Courtjurisdiction in any ofthe ten Applications.
jurisprudentially such measures were designed to prevent Judge Oda agrees with the Court that, as it has no basis
violence, the use of force, to safeguard international peace
and security as well as serving as an important part of the of jurisdiction, it must reject the requests for the indication
dispute settlement process under the Charter of the United of provisional measures in all ten cases. However, he
Nations. In his view the indication of such measures considers that, the Court having decided that it has no
therefore represents one of the most important functions of jurisdiction to entertain the cases, notven prima facie, that
this can only mean that it has no jurisdiction whatsoever in
the Court. any of the cases. It follows, in Judge Oda's view, that not
But the granting of such a relief, he stressed, could only
be done in accordance with the Statute of the Court. In this only in the cases of Spain and the United States, in which
regard, and in the light of the jurisprudence of the Court, the Court states that it manifestly lacks jurisdiction, but in
where prima facie jurisdiction is absent or other all the other cases, the Applications should be dismissed at
this stage, given that the Court has found that there is not
circumstances predominate, the Court will not grant the even aprima faciebasis ofjurisdiction.
request forprovisionalmeasures. Judge Oda also points out that, while the Court makes a
Nevertheless, he considered the Court, being the
principal judicial organ of the United Nations, whose distinction between the Applications, even though they deal
primary raison d'etre remains the preservation of virtually with the same subject matter, this distinction,
which came about simply because of the different positions
international peace and security, to be under a positive which individual States happened to take towards the
obligation to contribute to the maintenance of international various instruments that are to be applied concerning the
peace and security and to provide a judicial framework for Court's jurisdiction, will lead to differingresults concerning
the resolution of a legal conflict, especially one which not
only threatens international peace and security but also the future proceedings in each of the cases. In Judge Oda's
involves enonnous human suffering and continuing loss of view this is an illogical situation, which supports his
life. He had thereforejoined with the other Members of the contention that all ten cases should be dismissed in their
entirety at this stage.
Court in calling for the peaceful resolution of this conflict
pursuant to ~Aicle 33 of the Charter, and in urging the
Parties not to aggravate or extend the dispute and to respect Separate opinion ofJudge Higgins
international law, including humanitarian law and the Judge Higgins in her separate opinions addresses two
human rights of all the citizensofYugoslavia. issues that arise in relation to those cases where the Federal

Republic of Yugoslavia claims jurisdiction on the basis of
Separate opinion of Judge Oda Article 36, paragraph 2, of the Statute. The first issue
Judge Oda supports the decision of the Court in concerns temporal limitations to so-called "optional
clauses", and in particular the question of when a dispute
dismissing the requests for the indication of provisional arises and when the relevant events have occurred. These
measures by the Federal Republic of Yugoslavia against ten concepts are analysed in connectionwith Yugoslavia's own
respondent States. While favouringthe decisionof the Court declaration. The second issue addresses the question of
to remove the case from the General List of the Court in the
cases of Spain and the United States, Judge Oda voted exactly what has to be shown for the Court to be satisfied it
against the decision in the other eight cases in which the has prima facie jurisdiction when it is considering the
Court ordered that it "[r]eserves the subsequent procedure indicationofprovisional measures. It is suggested that some
jurisdictional issues are so complex that they cannot be
for further decision", because he believes that those eight addressed at all at this phase; their holding over for a later
cases should also be removed at this stage from the General phase does not stand in the way of the Court determining
List of the Court.
Judge Oda considers that the Federal Republic of whether or not it has prima facie jurisdiction for the
Yugoslavia is not a Member of the United Nations and thus purposes ofArticle41.

not a party to the Statute of the International Court of Separate opiilion of Judge Parra-Arangtrren
Justice. The Applicationspresented by the Federal Republic
of Yugoslavia should therefore be declared inadmissiblefor JudgeParra-Arangurenrecalls that Yugoslaviamaintains
this reason alone and should be removed from the General that "the bombing of Yugoslav populated areas constitute a
List of the Court. breach of Article I1 of the Genocide Convention", a
contention denied by the Respondent: that a legal dispute
He nevertheless then goes on to discuss whether, if the
Federal Republic of Yugoslavia were to be considered a exists between the Parties because of tlie existence of "a
party to the Statute, it could have brought the present situation in which the two sides hold clearly opposite views
Applications on the basis of certain legal instruments. After concerili~lg the question of the perforinance or non-
having examined the meaning of (i) the optional clause of perfol-mance of certain treaty obligations", as the Courtstated in its decision of 11 July 1996 (Applica.lion of the 3. On 22 September 1992the GeneralAssembly,on the
Conventioiz011 thePreventior~and Pliiiishment01'-the Criine recommendation of the Security Council, decided that the
of Genocide (Bosniaand Herzegovinav. Yugoslrrvia)I ,.C.J. Federal Republic of Yugoslavia cannot continue
Reports 1996 (H), pp. 614-615, para. 29); and that according autoinatically the membership of the former Socialist

to Article IX of the Genocide Convention, "disputes Federal Republicof Yugoslavia and therefore that it should
between the ContractingParties relating to the interpretation apply for membership in theUnited Nations. Until that time
or fulfilment of the presentConvention" shall be:submitted it shall not participate in the work of tGeneral Assembly
to the International Court of Justice. Therefore, in his (res. 47/1). The Federal Republic of Yugoslavia never
opinion the Court has prima facie jurisdiction to decide appliedfor membership.
upon the provisionalmeasuresrequestedby Yugoslavia.
4. In its present Orders the Court avoids the questionof
Yugoslavia requested the Court to indicate that the the contested validity of Yugoslavia's declaration. It takes
Respondent"shall cease immediatelythe acts of use of force the position that it need not consider this issue since the
and shall refrain from any act of threat or use of force declaration cannot provide the Court with a basis for prima
against the Federal Republicof Yugoslavia7'.Hclwever,the faciejurisdiction on othergrounds.
threat or use of force against a State cannet in itself 5. Judge Kooijmans is of the view that the Court's
constitute an act of genocide within the meaning of the
reasoning in this respect isinconsistent.Such other grounds
Genocide Convention. Consequently, Yugoslavia is only become relevant if the validity of the declaration- at
requestingthe indicationof provisionalmeasuresthat do not least for thepresent stage of the proceedings- is accepted.
aim to guarantee its rights under the Genocide Clonvention, The Court's reasoningis based ona presumptionof validity
i.e., th.eright not to suffer acts which may be characterized and the Court should have said so and have given its
as genocide crimes by the Convention. Therefore, in the argumentsfor it.
opinio:nof Judge Paira-Aranguren, the measurer;requested
6. According to Judge Kooijmans there certainly was
by Yugoslaviashould notbe indicated. no need for the Court to take a definitive stand on
Yugoslavia'smembershipof the UnitedNations. He is fully
Sepurute opiilioil ofJzrdgeKoojjmans aware that resolution 47/1 is unprecedented and raises a
number of highly complexlegal questions, which require a
1. Judge Kooij~nansjoined a separate opinion to the
Order of the Court in the cases of Yugoslavia versus thorough analysis and careful evaluation by the Court at a
Belgium, Canada, the Netherlands, Portugal, Spain and the laterstageof the proceedings.
United Kingdom,respectivety. Difficult though the question may be, the relevant
decisions have been taken by the organs of the United
He does not agree with the Court's view that Nations which have exclusive authority in matters of
Yugoslavia's declaration of acceptanceof the compulsory membership (Security Council and General Assembly) and
jurisdi~ctionof the Court of 25 April 1999cannot provide a
basis of jurisdiction in the present case, even prima facie, they cannotbe overlookedor ignored.
because of the reservations incorporated inthe c.eclarations 7. According to Judge Kooijmans the doubts. raisedby
of Spain and the United ICingdom, cq. because of the the decisions of the competent United Nations bodies with
regard to Yugoslavia's membershipand the ensuing validity
tempo1:allimitation contained in Yugoslavia's declaration of its declaration, are, however, so serious that the Court
(cases against Belgium, Canada, the Netherlands and
Portugal). He is of the view that the Court lacksprima facie should have concluded that this declaration cannot provide
jurisdiction because of the co~~troversial validity of it with a basis for prima faciejurisdiction. The Court should
Yugoslavia's declaration. This validity issue constitutes a not indicate provisional measures unless its competence to
preliminary issue and should, therefore, have been dealt entertain the dispute appears to be reusoi~ub~probableand
with bythe Court as a thresholdquestion. this test of reasonable probability cannot be passed because
of the doubtfulvalidityof the declaration.
Sincethis issue is of no relevance in the four other cases
(against France, Germany, Italy and the United States) as 8. If that is the case, issues like reservations and
these States themselves do not recognize the compulsory temporallimitatioilson which thecases were decidedby the
jurisdiction of the Court, there is no need for a separate Court, become irrelevantsince they are wholly conditioiled
opinionin those cases. by the preliminaryquestioilof the declaration's validity.

2. Article 36, paragrap'h2, of the Statute explicitly
states that only States which are party to the Statute can
recognize the compulsory jurisdiction of the Court by Judge Weeramailtryhas filed a dissentingopinion in this
depositing a declaration of ;acceptancewith the Secretary-
General of the United Nations. Member States of that case on the samegroundsas in firgosluviuv. Belgium.
Organization are eo @so party to the Statute. All six
Dissenting opinion of JzrdgeShi
Respondents contended, thai since the Federal Republicof
Yugoslavia is not a Member of the United Nations, its In the four cases of Yugoslavia against Belgium,
declariationof acceptancehas not been validlymade. Canada, the Netherlands and Portugal, Judge Shi disagrees
with the Court's findings that,given the limitation rationeteinporis contained in Yugoslavia's declaration of United NationsCharter and all the rules of internationallaw
acceptance of compulsory jurisdiction, the Court lacked relevant to the situation, and at least not to aggravate or
prima faciejurisdiction under Article36, paragraph2, of the extend their disputes immediately up011 receipt of

Statute for the indication of provisional measures requested Yugoslavia's request and regardless of what might be the
by Yugoslavia. Court's conclusionon prima facie jurisdiction pending its
By that declaration, signed on 25 April 1999, filial decision. The Court also failed to make use ofArticle
Yugoslavia recognized compulsory jurisdiction "in all 75, paragraph 1,of the Rules of Court to decide the requests
disputesarising or which mayarise after the signatureof the proprio motzd,despiteYugoslaviahaving so asked.

present Declaration, with regard to the situations or facts .For these reasons, Judge Shi felt compelled to vote
subsequentto this signature ...".In cases where the Court is againstoperativeparagraph(1) of the fourOrders.
confrontedwith such a "double exclusionformula", it has to
ascertain both the date of the dispute and the situations or Disseirtiitg opiilioir ofJudge Vereshclzetin
facts with regardto which thedisputehas arisen.
As to the first aspect ofietime condition,the Court has Judge Vereshchetin begins his dissenting opinion with a
general statement, attached to all the Orders of the Court, in
to determinewhat is the subject matter of the dispute,which which he holds that the extraordinary and unprecedented
in the present cases consists of a nuiiiber of constituent circun~stancesof the cases before the Court imposed on it a
elements. The section "Subject of the Dispute" in each of need to act promptly and, if necessary,proprio motn.After
Yugoslavia's Applicationsindicatesthat subjectmatterto be
acts of the Respondent by which it has violated its that, he proceedsto explainwhy liehas no doubt that prima
international obligations not to use force against another facie jurisdiction under Article 36, paragraph 2, of the
State,not to intervenein the internalaffairs of another State, Statute of the Court exists with regard to the Applications
not toviolate the sovereigntyof another State,to protect the instituted against Belgium. Canada, the Netherlands and
Poilugal. As far as Belgium and the Netherlands are
civilian population and civilian objects in wartime, to concerned,the Court also has prima faciejurisdiction under
protect the environment,etc. the Agreementssignedbetween Belgium and Yugoslaviaon
Prior to the coming into existence of all the constituent
elements, the dispute cannot be said to arise. Though the 25 March 1930 and between the Netherlands and
aerial bombing of the territory of Yugoslavia began some Yugoslaviaon 11March 1931.
weeks beforethe critical date ofsignatureof the declaration. Judge Vereshchetin disagrees with two cornerstone
proj~ositionson which, in his opinion, rest the argumentsto
aerial bombing and its effects as such do iiot constitute a the contrary upheld in the Orders of the Court. The first
dispute. It is true thatiior to the critical date, Yugoslavia proposition is that the text of the Yugoslav declaration
had accused NATO of illegal use of force against it. This
complaint constitutes at the most one of the many acceptingthe jurisdiction of the Court, and in particular the
constituent elements of the dispute. Besides, NATO cannot wording of the reservation containedtherein, does not grant
be identified with, nor be the Respondent in the present priiiiafaciejurisdiction to the Court.The secondproposition
cases ratiortepersonae. The dispute only arose at the date is that the timing of the presentation by Yugoslavia of the
additional bases forjurisdiction does not allow the Court to
subsequentto the signatureof the declaration. concludethat it has prima faciejurisdiction in respect of the
Regarding the second aspect of the time condition, the cases institutedagainstBelgium andthe Netherlands.
dispute relates to the alleged breach of various international
obligationsby acts of fofce, in the formof aerialbombingof As concerns the first proposition. Judge Vereshchetin
the territories of Yugoslavia, which are attributed by the takes the view that the Court, by refusing to take into
Applicant to the respondent State. It is obvious that the account the clear intention of Yugoslavia, reads its
declarationin a way thatcould lead to the absurd conclusion
allegedbreach of obligationsby such a "continuing" act first that Yugoslavia intended by its declarationof acceptance of
occurred at the moment when the act began, weeks before the Court's jurisdiction to exclude the jurisdiction of the
the critical date. Given that the acts of aerial bombing Court over its Applications instituting proceedings against
continued well beyond the critical date and still continue,
the time of cominission of the breach extends over the the Respondents.
whole period during which the acts continue and ends only As to the second proposition connected with the
when theacts of the respondent Statecease. invocationof additionalgrounds ofjurisdiction in relationto
Belgium and the Netherlands, in the opinion of Judge
The conclusionmay be drawn that tlie limitationrrctione Vereshchetin, the legitimate concern of the Court over the
temporis contained in Yugoslavia's declaration in no way
constitutes a bar to founding prima facie jurisdiction upon observance of "the principle of procedural fairness and the
Article 36, paragraph 2, of the Statute for the purpose of sourldadministrationofjustice" cannot be stretchedto such
indicatingprovisionalmeasuresin the present case. an extent as to exclude a priori the additional basis of
jurisdiction from its consideration, solely because the
Moreover, for reasons similar to those expressed in the respondent States have not been given adequate time to
declarationsrelating to the other six cases,Judge Shi regrets prepare their counter-arguments. Admittedly, it cannot be
that the Court, being confronted with a situation of great considered normal for a new basis of jurisdiction to be
urgency, failed to make a general statementappealingto the invoked in the second round of the hearings. However. the
Parties to act inomplialicewith their obligations under the
respondent States were given the possibility of presentingtheir counter-arguments to tlle Court, and they used this formed, a standard which commanded sufficient inherent
possibi'lityto make various observations and objections to strength to brush aside some relevant, both procedural and
the new basis of jurisdiction. If necessary, they could have material, rules governing the institution of provisional
asked :for the prolongation ,of the hearings. In turn, the measures (examnpli crrusa, the LaGralid case). Thus,
Applicant may reasonably claim that the belated invocation humanitarian considerations, independentlyfrom the norms

of the new titles of jurisdiction was caused by the of international law regulating human rights and liberties,
extraordinary situation in Yugoslavia, in which the have, in a way, gained autonomous legal significance; they
prepara.tionof the Applications had been carried out under have transcended the moraland philanthropic sphere, and
coiiditic~nof daily aerialbombardmentby the Res.pondents. enteredthe sphereof law.
The refusal of the majority to take into consid1:rationthe In the case at hand, it seemsthat "humanitarian concern"

new bases ofjurisdiction is clearly contrary to Article8 of has lost the acquired autonomous legal position. The fact
the Rules of Court and to the Court's jurisprud.ence.The needs to be stressed in view of the special circumstancesof
refusal to have due regard tothe intentionof a Statemaking this case. Unlike the recent practice of the Court,
a declarationof acceptanceof the Court's jurisdict.ionis also "humanitarian concern"has as its objectthe fate of an entire
incompatible with the Court's case-law and with the nation, in the literal sense. The Federal Republic of
customary rules for interpreting legal instruments. In the Yugoslavia and its national and ethnic groups have been
view of Judge Vereshchetin, all the requiremerits for the subjected for more than two months now to continued

indication of provisional measures, flowing from Article 41 attacks of a very strong, highly organized air armada of the
of the Court's Statute and from its well-established most powerful States of the world. At the same time, the
jurispnldence, have been met, and the Coc~rt should arsenal used in the attacks on Yugoslavia contains also
undoubtedly have indicated such measures so far as the weaponswhose effectshave no limitationseitherin space or
abovefour Statesare concerned. in time such as depleted uranium which cause far-reaching
and irreparable damage to the health of the whole
population.
Disseliting opinion of Judge Kreca
In lhis dissenting opinior;,Judge Kreca points out the Judge Kreca finds that, as regards the membership of
Yugoslavia in the United Nations, the Court remained
followingrelevant issues: consistent with its "avoidance" position, persisting in its
Judgececa findsthat none of the equalizatio~lhctions statement that it "need not consider this question for the
of the institution of judge ad hoc have been niet in this purpose of deciding whether or not it can indicate
particular case. The letternd spirit of Article 31,paragraph
2, of the Statute of tlie Court, applied to this particular case,ovisional measures in the present case". But it is the
profound conviction of Judge Kreca that the Court should
imply the right of Yugoslavia, as the applicant State, to have answeredthe questionwhetherthe FederalRepublicof
choose as many judges ad hoc to sit on the Bench as is Yugoslavia can or cannot, in the light of the content of
necessary to equalize the position of applicant State and that GeneralAssembly resolution 4711and of the practice of the
of the respondent States which have judges. of their world Organization, be considered to be a Member of the
nationality on the Bench and which share tlie sanie interest. United Nations and especially party to the Statute of the
111 coi~clato, the inherent right to equalization in the
con1po:;ition of the Bench, as an expression of a Court; naniely the text of resolution4711makes no mention
of the status of the Federal Republic of Yugoslavia as a
fundarr~entalrule of equality of parties, means that the party to the Statute of the International Court of Justice.
Federal.Republic of Yugoslavia should have the right to Judge Kreca is equally convinced that, especially because
choose five judges ad hoc, since even five out of ten the Court should have answered that question, both the
respondent States (United States, the United Kingdom, content of the resolution which represents cont~adictio ilt
France.,Germany, and the Netherlands) have their national adiecto and in particular the practice of the world
judges sittingon theBench.
Organizationafter its adoptionover a period of nearly seven
At the sametime, accordiilgto coherentjurisprudence of years, offered ample argumentsfor it to pronounce itself on
the Court, none of the respondent States were entitled to thismatter.
appoint a judge ad hoc (Territorial Jurisdiction of the Judge Kreca is of the opinion that the extensive use of
Interi~atioi~alCoiniliissioiof the River Ode? Customs armed force, in particular if it is used against objects and
RLgimebetweenGerlnm~~ ant?Austria).
means constituting conditions of normal life, can be
There is no need to say that the above-mentionedissues conducive to "inflicting on the group conditions of life"
are of upmost specific weight in view of the: fact that bringing about "its physical destruction" (Genocide
obviously the meaning of such issues is not restrictedto the Convention,Article 11).
procedure, but that it may have a far-reaching concrete Judge Kreca goes on to say that it can be argued that
meaning. such acts are in the function of degrading the military

Judge Kreca finds that in the recent practice of the capacityof the FederalRepublic of Yugoslavia.But suchan
Court, in particular that in which individuals were directly explanation can hardly be regarded as a serious argument.
affected, a high standard of'humanitarian conceni in the For the spiralof such a lineof thinkingmay easily cometo a
proceedings for the indication of interim measureshas been point when, having in mind that military power is after allcomprised of people, even mass killing of civilians can be of the proceedings for the indication of provisional
claimed to constitute some sort of precautionary measure measures, on the other and, secondly, for reasons of a
that should prevent the maintenance or, in case of specific nature deriving from circumstances of the case in

niobilization.the increaseof militarypower of a State. liaiid. As far as jurisdiction of the Court is concerned, it
Judge Kreca also points out that, in the incidental seems incontestable that a liberal approach towards the
proceedings the Court cannot and should not concern itself temporal element of the Court's jurisdiction in the
with the definitivequalificationof the intent to impose upon indication of provisional measures has become apparent. It
the group conditions in which the survival of the group is isuilderstandable that the proceeding for the indication of
threatened. Having in mind the purpose of provisional provisional measures is surely not designed for the purpose
of the final and definitive establishment of the jurisdictioii
measures, it can be said that at this stage of the proceedings
it is sufficient to establish that, in the conditions of of the Court. The determinant "prima facie" itself implies
extensive bombing, there is an objective risk of bringing that what is involved is not definitely established
about conditions in which the survival of the group is jurisdiction, but the jurisdiction deriving or supposed to be
threatened. nomially deriving from a relevant legal fact which is
defined as the "title ofjurisdiction". It couldbe said that the
Judge Kreca finds that thestance of the Court as regards "title of jurisdiction" issufficient per se to constitute priina
jurisdiction of the Court rutione temporis is highly
questionable for two basic reasons. Firstly, for reasons of a facie jurisdiction except in the case of the absence of
general nature to do with thejurisprudence of the Court in jurisdiction on the inerits is manifest (F'islzerJ~lwisdiction
this particular matter, on the one hand, and with the nature cases).