Summary of the Order of 14 April 1992

Summaries of Judgments, AdviNot an official document of the Internationa
l Court of Justice

QUESTIONSOF 1NTERPRET.ATION AND APPLICATION OF THE 1971 MONTREAL

CONVENTION ARISING FROM THE AERIAL INCIDENT AT LOCKERBIE (LIBYAN
ARAB JAMAHIRIYA v. UNITED KINGIIOM) (PROVISIONAL MEASURES)

Order of 14 April 1992

In an Order issued in the case concerning (!uestions of flight 1031 . . . which bomb had exploded causing the
Interpretation andApplica1:ionof the 1971 Montreal Con- aeroplane to crash".
vention arising from the Aerial Incident at Lockerbie ~h, cour then recites the history ofthe case.
(~ib~an ~rab ~amahiriya v.United kingdom:^,the Court refers
found, by 1I votes to 5, that the circumstances of the case to the allegations and submissions made by Libya in its
were not such asto require the exercise of itswer under ~ ~ ~ l i ~ ~i ~w~hich it asks the court to adjudge and de-
Article 41 of the Statute to indicate provisional measures. clare:
"(a) that Libya has fully complied with all of its
The Court was composed as follows: Vice-President obligations under the ~~~~~~~lconvention;
Oda, Acting President; President Sir Robert Jennings; (b) that the United Kingdom has breached, and is
Judges Laths, Ago, Schv~ebel,Bedjaoui, Ni, Evensen, continuing to breach, its legal obligations to Libyaunder
Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, articles (2), (3), 7, 8 (2) and of the Montreal
Weeramantry, Ranjeva, Ajibola; Judge ad hoc El-Kosheri. Convention; and

tion immediately to ceaseand desistfrom such breachesa-
and from the use of any and all force or threats against
Libya, including the threat of force against Libya, and
The voting on the Order of the Court on the request for from all violations of the sovereignty, territorial integ-
the indication of provisional measures made by Libya in rity, and the political independence of Libya."
the above case was as follows:
The Court also refers to Libya's request (filed, like the
IN FAVOUR: Vice-President Oda, Acting President; Application, on 3 March 1992,but later in the day) for the
President Sir Robert Jemnings; Judges Litchs, Ago, indication of the following provisional measures:
Schwebel,Ni, Evensen,Tara.ssov,Guillaume, Shithabuddeen, "(a) to enjoin the United Kingdom from taking any
Aguilar Mawdsley; action against Libya calculated to coerce or compel
AC~AINST J: dges Bedjaoui, Weeramantry, Ranjeva, Libya to surrenderthe accused individuals to anyjuris-
Ajibola; Judge ad hoc El-Kosheri. diction outside of Libya; and
(b) to ensure that no steps are taken that would
prejudice in any way the rights of Libya with respect to
the legal proceedings that are the subject of Libya's
Application."
Acting President Oda and Judge Ni each appended a The Court further refers to the observations and submis-

declaration to the Order of the Court; Judge.s Evensen, sions presented by both Libya andthe United Kingdom at
Tarassov, Guillaume and A.guilarMawdsley ajoint decla- the public hearings on the request forthe indication ofpro-
ration. visional measures held on 26 and 28 March 1992.
Judges Lachs and Sha:habuddeen appended separate The Court thentakes note ofthejoint declaration issued
opinions; andJudges Bedjaoui, Weeramantry,Ilanjeva and on 27 November 1991 by the United Kingdom and the
Ajibola and Judge ad hoc El-Kosheri appended dissenting United Statesof America followingon the charges brought
opinions to the Order. by the Lord Advocate of Scotland against the two Libyan
nationals in connection with the destruction of Pan Am
flight 103, and which reads:

"The British and AmericanGovernmentstoday declare
In its Order, the Court recalls that on 3rch 1992the that the Government of Libya must:
-surrender for trial all those charged with the crime;
Libyan Arab Jamahiriya instituted proceedings againstthe and accept responsibility for the actions of Libyan
United Kingdom in respect of "a dispute . .. between officials;
Libya and the United Kingdom over the interpretation or -disclose all it knows of this crime, including the
application of the Montreal Convention" of 23 September names of all those responsible, and allow full access
1971, a dispute arising from the aerial incidefntthat oc- to all witnesses, documents and other material evi-
curred over Lockerbie, Scotland, on 21 December 1988 dence, including all the remaining timers;
and that led, in November 1991, to the Lord Advocate of -pay appropriate compensation.
Scotland charging two Libyan nationals with, inter alia,
having "caused a bomb t,o be placed aboarcl [Pan Am We expect Libya to coinply promptly and in full." The Court also takes note of the fact that the subject of international agreement or any contract entered into or
that declaration was subsequently considered by the United any licence or permit granted prior to 15April 1992;".
Nations Security Council, which on 21 January 1992 The Court observes that document Sl23308, to which
adopted resolution 731 (1992), of which the Court quotes,
inter alia, the following passages: reference was made in resolution 748 (1992), included the
demands made by the United Kingdom and the United
"Deeply concerned over the results of investigations, State!;of America intheirjoint declaration of 27November
which implicate officials of the Libyan Government and 1991,as set out above.
which are contained in Security Council documentsthat Afi:erhaving referred to the observations on Security
include the requests addressed to the Libyan authorities Council resolution 748 (1992) presented by both Parties in
by France, the United Kingdom of Great Britain and response to the Court's invitation, the Court goes on to
Northern Ireland, and the United States of America consider as follows:
[S/23308],in connection with the legal procedures re-
lated to the attacks carried out against Pan American "Whereas, the Court, in the context of the present
flight 103and Union de transports aCriensflight 772, proceedings on a request for provisional measures, has,
... in accordance with Article 41ofthe Statute, to consider
2. Stronglydeploresthe factthat the LibyanGovern- the circumstances drawn to its attention as requiring the
ment has not yet responded effectively to the above indication of such measures, but cannot make definitive
requests to cooperate fully in establishing responsibility the:merits, and the right of the Parties to contest suchto
forthe terroristacts referred to aboveagainst PanAmeri-
canflight 103and Uniondetransports akriensflight772; issues at the stage of the merits must remain unaffected
by the Court's decision;
3. Urges the Libyan Government immediately to 'Whereasboth Libya and the United Kingdom, as
provide a full and effective response to those requests Membersof the UnitedNaticns, areobligedto accept and
so as to contribute to the elimination of international ca~ryoutthedecisionsofthe SecurityCouncil inaccord-
terrorism;". ance with Article 25 of the Charter; whereas the Court,
The Court further notes that on 31 March 1992 (three which is at the stage of proceedings on provisional
days after the close of the hearings) the Security Council me:asures, considers that prima facie this obligation
adopted resolution 748 (1992), stating, inter alia, that the extendstothedecisioncontainedinresolution748(1992);
Security Council: and whereas, in accordance with Article 103 of the
Charter, the obligations of the Parties in that respect
prevail over their obligations under any other interna-
Deeply concernedthat the Libyan Government has tional agreement, including the Montreal Convention;
still not provided a full and effective response to the Whereas the Court, while thus not at this stage called
requests in its resolution 731(1992) of 21 January 1992, upon to determine definitively the legal effect of Secu-
Convincedthatthe suppression of actsof international rity Council resolution 748 (1992), considers that, what-
terrorism, including those in which States are directly or ever the situation previous to the adoption of that reso-
indirectly involved, is essential for the maintenance of lut:ion,the rights claimed by Libya under the Montreal
international peace and security, Convention cannot now be regarded as appropriate for
protection by the indication of provisional measures;
Whereas, furthermore, an indication of the meas-
Determining,in this context, that the failure by the ures requested by Libya would be likely to impair the
Libyan Government to demonstrate by concrete actions rights which appear prima facie to be enjoyed by the
its renunciation of terrorism and in particular its con- United Kingdom by virtue of Security Council resolu-
tinued failure to respond fully and effectively to the tion 748 (1992);
requests in resolution 731 (1992) constitute a threat to Whereas, in order to pronounce on the present request
international peace and security, for provisional measures, the Court is not called uponto
determine any of the other questions which have been
Actingunder Chapter VII of the Charter, raised before it in the present proceedings, including the
1. Decides that the Libyan Government must now question of itsjurisdiction to entertain the merits of the
comply without any further delay with paragraph 3 of case; and whereas the decision given in these proceed-
resolution 731 (1992) regarding the requests contained ings in no way prejudges any such question, and leaves
in documents S/23306, S/23308 and S/23309; unaffected the rights ofthe Government of Libya andthe
Government of the United Kingdom to submit argu-
2. Decides also that the Libyan Government must ments in respect of any of these questions;
commit itself definitively to cease all forms of terrorist
action and all assistance to terrorist groups and that it For these reasons,
must promptly, by concrete actions, demonstrate its THE COURT,
renunciation of terrorism; By eleven votes to five,
3. Decides that on 15 April 1992 all States shall Finds that the circumstances of the case are not such
adoptthe measures setoutbelow, which shallapply until as to require the exercise of its power under Article 41
the Security Council decides that the Libyan Govern- of'the Statuteto indicate provisional measures."
ment has complied with paragraphs 1and 2 above;

7. Calls uponall States, including States not mem- Declarationof Vice-PresidentOda,Acting President
bers of the United Nations, and all international organi- Acting PresidentOda appended a declaration concurring
zations, to act strictly in accordance with the provisions with the Court's decision but expressing his view that it
of the present resolution, notwithstanding the existence shou.ldnot have been based solely on the consequences of
of any rights orobligations conferred or imposed by any Security Council resolution 748 (1992), since this sug- gestad the possibility that, prior to the adoption.of the reso- Joint declaration of JudgesEvensen,Tarassov,
lution, the Court could have reached legal conclusions with Guillaumeand Aguilar Mawdsley
effects incompatible with the Council's actions, and the
Cou~tmight in that case be blamed for not having acted Judges Evensen, Tarassov, Guillaume and Aguilar
sooner. As it happened, the Security Council, applying its Mawdsley,in ajoint declaration, expressed their complete
own logic, acted with haste in adopting itsnew resolution agreement with the decision of the Court, but made some
beforethe Courtcould have reacheda considered decision, additional comments. They stressed that, before the Secu-
a fact of which it must have been aware. rity Council became involvedin the case, the United States
Acting President Oda is satisfied that the Court pos- andthe United Kingdom had been entitled to request Libya
sessedjurisdiction prima f,acie,despite the six-month rule to extradite the accused and, to thatend, to take any action
inarticle 14(1) of the Montreal Convention, since the cir- consistent with international law. For its part, Libya was
entitledto refuse such extradition andto recall in that con-
cumstanceshad appeared to leaveno room to negotiatethe nection that, in common withthe law of many other coun-
orgailization of an arbitration. tries, its domesticlaw prohibitsthe extradition ofnationals.
However, the essential right of which the prc~tectionwas The authors then showedthat, inthis particular case,that
claimed, that of not being forced to extradite one's own situation was not considered satisfactory by the Security
nationals, wasa sovereign light under general international Council,whichwas acting, witha viewto combating inter-
law, whereas the subject-matter of Libya's Application
consisted of specific rights claimed under the Montreal national terrorism, within the frameworkof Chapter VII of
Convention. Given the principle that the righ1.ssought to the Charterofthe United Nations. The Council accordingly
be protected in proceedings for provisional measuresmust decided that Libya should surrender the two accusedto the
relate to the subject-matter of the case, thise:antthat the countries that had requested their surrender.
Court would in any case havehad to declineto indicatethe Under those circumstances, Judges Evensen, Tarassov,
measures requested. Such ;amismatch betweeii the object Guillaume and Aguilar Mawdsley take the view that the
of the Application and the:rights sought to be protected Court, pronouncing ona request for the indicationof pro-
ought, in the view of the Acting President, to have been visional measures submitted by Libyain order to preserve
the main reason for taking a negative decis.ion,which the legal situation existing prior to the adoption of the
would have been appropriate no less before than after the Security Council resolutions, was fully justified in noting
adoption of resolution 748 (1992). the changes that had been made to that situation by those
resolutions. It was also fully justified in holding that, as
a consequence, the circumstances of the case were not
Declaraticwof JudgeNi suchasto requirethe exercise of its powerto indicate such
measures.
Judge Ni, in his,declaration, expresses his view that, ac-
cording to the jurisprudenc:e of the Court, the fact that a
matter is before the Security Council should nc,tprevent it Separate opinionofJudgeLachs
from being dealt with bythe Court. Although both organs The present cases, and the necessity for the Court to
deal .withthe same matter, there are differing points of
emphasis. In the instant case, the Security Council, as a take an early decision on an interlocutory request, have
po1iti1:alorgan, is more concerned with the eliminationof brought outintothe openproblemsofjurisdiction andwhat
international terrorism and the maintenance of international is known as subjudice. In fact, the Court is the guardian
peace and security, while the InternationalCourtof Justice, of legality for the international community as a whole,
as the principal judicial organ of the United Nations, is within and without the United Nations. Thereis no doubt
more concerned with legal procedures suchas questions of that the Court's taskis "to ensure respect for international
extradition and proceedingsin connectionwith prosecution law . .. " (I.C.J. Reports 1949, p. 35). It is its principal
of offenders and assessment of compensation, etc. guardian. In the present case, not only has the wider issue
Collcerning Libya's request for provisional measures, of international terrorism been on the agendaof the Secu-
Judge Ni refers to the provisions in the 1971.Montreal rity Council but the latter adopted resolutions 731 (1992)
Convention for the Suppressionof Unlawful Acts against and 748 (1992). The Order made should notbe seen as an
the Sa.fetyof Civil Aviation on which Libya relies. Accord- abdicationof the Court's powers. Whetheror not the sanc-
ing to article 14(1) of that Convention, any one of the par- tions ordered by resolution 748 (1992) have eventuallyto
ties to a dispute may invoikejurisdiction of tlie Interna- be applied,it is in any event to be hoped that thetwo prin-
cipal organs concerned will be able to operate with due
tional Court of Justice if within six months from the date consideration for their mutual involvementin the preser-
of the request for arbitration no agreement is reached on vation of the rule of law.
the organization of the arbitration. In this cas.e. Libya's
arbitration by a letter of 18 January 1992,only Separate opinionofJudgeShahabuddeen
one-and-a-half months had elapsed before L:ibya insti-
tuted proceedings in the International Court of Justice on In his separate opinion, Judge Shahabuddeen thought
3 March 1992. that Libyahad presented an arguable case for an indication
Judge Ni considers that Libya's requestshoulclbedenied of provisional measures but that Security Council resolu-
on the:sole ground of the non-fulfilment of the six-month tion 748(1992)hadthe legaleffectof renderingunenforce-
period requirement, without having to decideat the same ablethe rights claimedby Libya. The decisionofthe Court,
time on the other issues. Consequently, Libya will not be he said, resulted not from any collision between the com-
prevented from seeking a remedy of the Court in accord- petence of the Security Council and the competence ofthe
ance with the provisionsof t'he197 1 Montreal Convention, Court, but from a collision between the obligations of
if,months later, the dispute still subsists andif the Appli- Libya under the resolutionof the Security Council and any
cant so desires. obligations which Libya had underthe Montreal Conven-tion. Under the Charter, the obligations under the resolu- parts of the two orders remain atthe threshold of the whole
tion of the Security Council prevailed. operation inasmuch as the Court states therein that, having
Judge Shahabuddeen considered that the Respondent's regard to the circumstances, there is no reason for it to
demand that "Libya .. .must pay appropriate compensa- exercise itspower of indicating provisional measures. The
tion ... promptly and in full" presupposed a prior deter- qualification made by Judge Bedjaoui is that in the present
mination by the Respondent that the accused were guilty, case the effective exercise of this power wasjustified; but
since the responsibility of the Libyan State was premised he also observes that the effects of that exercise had been
on the guilt of the accused. In Judge Shahabuddeen's view, nullified by resolution 748 (1992). Judge Bedjaoui there-
the implications for an impartial trial in the Respondent fore arrives, concretely, at the same result as the Court, via
State were important. This was so because there was a fun- an entirely different route but also with the important
damental sense in which it could be said that the question nuance mentioned, as a result of which he does not reject
of an impartial trial lay at the root of the entire controversy the request for interim measures but, rather, declares that
relating to the Respondent's demand for the surrenderof its efSectshave disappeared.
the two accused, the stated position of the Respondent
being that an impartial trial could not be had in Libya. That said, Judge Bedjaoui is of the view that the Court
could not have avoided ordering provisional measures on
the basis of the circumstances of the case submitted to it,
Dissenting opinion of Judge Bedjaozri even though the effects of such a decision were negated by
resolution 748 (1992). It should be addedthat, even assum-
Judge Mohammed Bedjaoui proceeds from the idea that ing that the majority entertained somedoubt, which he per-
there exist two altogether distinct disputes, one legal, the sonally did not share, as to whether the requesting State
other practical. The former concerns the extradition of two could fulfil one or another of the prerequisites to an indi-
nationals and is dealt with, as a legal matter, before the cation of provisional measures, the Court could have made
International Court of Justice at the request of Libya, use of the power to indicate itself any provisional measure
whereas the latter concerns the wider question of State that it would have considered to be more appropriate than
terrorism as well as the international responsibility of the those:sought by the requesting State.
Libyan State and, for its part, is being dealt with, politi-
cally, before the Security Council at the request of the Consequently, the Court could have decided to indicate
United Kingdom and the United States. provisional measures in the very general terms of an ex-
Judge Bedjaoui considers that Libya was fully within its hortation to all the Parties not to aggravate or extend the
rights in bringing before the Court, with a view to itsjudi- dispute. Thus, assuming that the Court would in this case
cial settlement, the dispute concerning the extradition,just have been justified in considering that one or another pre-
as the United Kingdom and the United States were fully requisite to the indication of certain specific measures was
within their rights in bringing before the Security Council, lacking, it had at least one resource, name!y, to adopt a
with a view to its political settlement, the dispute on the general, distinct, measure taking the form of an appeal to
international responsibility of Libya. The situation should, the Parties not to aggravate or extend the dispute, or of an
in the opinion of Judge Bedjaoui, be summarized as fol- exhortation addressed to them to cometogether forthe pur-
pose of settling the dispute amicably, either directly, or
lows: he is of the view, on the one hand, that the rights through the Secretariat of the United Nations or that of the
claimed by Libya exist prima facie and that all of the con- Arab League, thus conforming to what is nowadays estab-
ditions normally required by the Court for the indication lished practice.
of provisional measures are fulfilled in this case so that
these rights may be preserved in accordance withArticle 41 Moreover, given the grave circumstances of the present
of the Statute of the Court. And it is on this point that case, would an indication of a provisional measure of
Judge Bedjaoui expressed reservations with regard to the this nature not have been an elegant way of breaking out
two Orders of the Court. But it should also be noted that of the impasse arising from the opposition between, on
Security Council resolution 748 (1992) has annihilated the one hand, the more specific provisional measures that
these rights of Libya, without itbeing possible, atthis stage the Court should have ordered to meet the wishes of the
of provisional measures, of, in other words, a prima facie requesting State and, on the other, Security Council reso-
pre-examination, for the Court to take it upon itself to lution 748 (1992), which would in any event have negated
decide prematurely the substantive question of the consti- the effects of such an order? This would have been an
tutional validity of that resolution, for which reason the elegant way of sidestepping the main difficulty, and also a
resolution benefits from apresumption of validity andmust really beneficial way of doing so, in the interests of every-
prima facie be held to be lawful and binding. He is there- one, by assisting in the settlement of the dispute through
fore in agreement with the Court as to this second point. methods that appear likely to be used.

The situation thus characterized, with rights that deserve Judge Bedjaoui therefore regrets that the Court was
to be protected through the indication of provisional meas- unable to indicate either specific provisional measures of
ures but which are almost immediately negated by a reso- the ltind sought by the requesting States, or,proprio motlc,
lution of the Security Council that deserves to be consid- general measures, a way that would have enabled it to
ered valid prima facie, does not fall precisely within the make its own positive contribution to the settlement of the
bounds of Article 103 of the Charter; it exceeds them dispute. This is why, in the last analysis, he could not but
somewhat. vote:against the two Orders.
Subject to this nuance, it is clear that the Court could not
but take note of the situation and hold that at this stage of
the proceedings sucha "conflict", governedby Article 103 Dissenting opinion of Judge Weeramantry
of the Charter, resulted, in effect, in any indication of Judge Weeramantry, in his dissenting opinion, expressed
provisional measures being ineffectual. But the operative the view that the circumstances invoked by the Applicantappearedprima facie to afford a basis for thr:Court's ju- ures consisting, among other things, of an appeal to the
risdiction. Parties enjoining them to adopt a line of conduct which
The opinion draws attention to the unique nature of the would preventthe aggravation or extension of the conflict.
present case in that it is the first time the International For such was the posture of the Court in the Military and
Court and the Security Council have been approachedby Paramilitary Activities in and against Nicaragua (Nicara-
gua v. UnitedStates ofAmerica) and the Frontier Dispute
opposite parties to the sam.edispute. This raisr:dnew ques- cases.
tions which needed to be discussed in the light of the
respective powers of the (Zounciland the Court under the In theview of Judge Ranjeva,the new dimensions of the
Charter of the United Nations and in the light of their problem meant that the Court was unable to limit itself
relat.ionshipto each other. to a passive approach to its legal function, which, in a
After an examination of the relevant Articles of the dynamic sense, falls within the scope of the fundamental
Charter and ofthe travau.rpriparatoires of AI-ticles24 (2) obligation set out in Article 1,paragraph 1,of the Charter
and (1) in particular, the opinion concludes that the Court of the United Nations, namely, the maintenance of peace
is not debarred from considering matters whichthe Secu- within the context of its role.
rity Council has considered under Chapter VI. Further-
more, the Security Council, in discharging its duties, is Dissenting opinion of Judge Ajibola
required to act in accordance with the principles of inter-
national law. Judge Ajibola, inhis dissenting opinion, regretsthat the
Court, by a majority decision, declined to indicate provi-
The Court is a coordinate body of the Security Council sional measures even though Libya established sufficient
and, in itsproper sphere of'determining disputl:~,examines warrant for its doing so under the applicable provisions of
and decides questionsof international law accordingto legal the Court's Statute and Rules.
prin~:iplesand judicial techniques. In regard to matters He strongly believes that, even if the Court concluded
properly before it, the Co~irt'sfunction is to niakejudicial that such measures should be declined because of the pos-
decisions according to law and it would not be deflected sible effect of Security Council resolution 748 (1992), the
from this course by the fact the same matter has been resolution did not raise any absolute bar to the Court's
considered by the Security Council. However, decisions
made by the Security Council under Chapter VII are making in its Order pronouncements clearly extraneous to
prima facie binding on all Members of the United Nations the resolution and definitely not in conflict with it.
and would not be the subject of examination by the Court. Hegoes onto stressthe Court'spowers, especially under
Judge Weeramantry concludes that resolution 731 (1992) Article 75 of its Rules, to indicate provisional measures
is or~lyrecommendatory and not binding but that resolu- proprio motu, quite independently of the Applicant's re-
tion 748 (1992) is prima facie binding. quest, for the purpose of ensuring peace and security
The opinion concludes that provisional measures canbe among nations, and in particular the Parties to the case. It
indicated in such a manner as not to conflict with resolu- should therefore,pendente lite, have indicated provisional
tion 748 (1992) and indicates such measuresproprio motu measures based on Article 41 of the Statute and Articles
against both Parties preventing such aggravationor exten- 73, 74 and 75 of the Rules of Court, with a view to pre-
sion of the dispute as might result in the use of force by venting any aggravation or extension of the dispute which
either or both Parties. This action is based on Article 41 of might result in the use of force by either Party or by both
Parties.
the Statuteand Articles 73,74 and75 ofthe Rulesof Court.

Dissenting opinion of Judge Ranjet'a Dissenting opinion of Judge ad hoc El-Kosheri
In his dissenting opinion, Judge Ranjeva considers Judge ad hoc El-Kosheri, in his dissenting opinion,
that the present dispute goes beyond the fri~nleworkof focusedmainlyon the legal reasons which Icdhim to main-
relations between the Parties to the dispute and concerns tainthatparagraph1of Security Council resolution 748 (1992)
the right of all States bourid by the Montreal Convention. should not be considered having any legal effect on the
Give:nhis right to choose, in accordance with the principle jurisdiction of the Court, even on a prima facie basis, and
accordingly the Libyan request for provisional measures
aut dedere aut judicare, the Applicant was justified in has to be evaluated in conformity with habitual pattern as
requesting the Court to indicate provisional measures; reflected in the established jurisprudence of the Court. In
this right was incontestable until the date of the adoption the light of the rules relied upon in the recent cases, he
of resolution 748 (1992). 'Thefundamental change of cir-
cum:jtances that occurred subsequent to the iiling of the came to the conclusion that the Court should actproprio
Application, without any alteration in the factual circum- motu to indicate measures having for effect:
stances of the case, prevented the Courtfrom exercising its -pending a final decision of the Court, the two suspects
legal function to the full extent of its powers. whose names are identified in the present proceedings
But, contrary to the opinion of the majority of the Mem- should be placed underthe custody ofthe governmental
bers of the Court, Judge Ranjeva considers that, bearing in authorities in another Statethat could ultimately provide
mind the development of case-law relating to the applica- a mutually agreed-upon convenient forumfortheir trial;
tion of Articles 41 of the Statute and 75 of the Rules, as -moreover, the Court could have indicated that the Par-
well as the autonomous nature of an appeal by the Court ties should each of them ensure that no action of any
to the Parties in relation to the indication of provisional kind is taken which might aggravate or extend the dis-
measures (case concerningPassage through thz Great Belt pute submitted to the Court or likely to impede the
(Finland v. Denmark)), [the Court could indicate] meas- proper administration ofjustice.