Summary of the Order of 2 June 1999

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

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

Order of 2

In an Order issued in the case concerning Legality of
Use of Force (Yugoslavia v. United Kingdom), the Court
rejected by twelve votes to three the request for the
indicationof provisional measures submittedby the Federal
Republic of Yugoslavia(FRY). The Court also stated that it
remained seized of the case. It reserved the subsequent On 29 April 1999 Yugoslavia filed an Application
instituting proceedings against the United Kiilgdoin "for
procedurefor fii-therdecisioilby fourteenvotesto one.
The Court was composed as follows: Vice-President violation of the obligation not to use force", accusing that
Weeramanhy, Acting President;President Schwebel;Judges State of bombing Yugoslav territory "together with other
Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Mernber States of NATO". On the same day, it submitted a
Fleischhauer, Koroma. Vereshchetin, Higgins, Parra- request for the indication of provisional measures, asking
Aranguren, Kooijinans; Judge ad hoc Kreca; Registrar the Court to order the United Kingdom to "cease
imtriediatelyits acts of use of force" and to "refi-ainfrom
Valencia-Ospina. any act of threator use of force" againstthe FRY.

As a basis for the jurisdiction of the Court, Yugoslavia
invoked the declarationsby which both States had accepted
the compulsoryjurisdiction of the Court in relation to any
The full text of the operative paragraph of the Order other State accepting the same obligation (Article 36,
reads as follows: paragraph 2, of the Statute of the Court), and Article IX of
"43. For thesereasons, the Convention on the Prevention and Punishment of the

THE COURT, Crirne of Genocide,adopted by the United Nations General
(1) By twelvevotes to three, Assembly on 9 December 1948.Article IX of the Genocide
Rejects the request for the indication of provisional Convention provides that disputes between the contracting
measures submitted by the Federal Republic of parties relating to the interpretation, application or
Yugoslaviaon 29 April 1999; fulfilment of the Convention shall be submitted to the
InternationalCourt ofJustice.
IN FAVOUR: Vice-President Weeramantry, Acting
President; President Schwebel; Judges Oda, Bedjaoui,
Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, Rensortirtgof tlie Court
Higgins,Parra-Arangilren,Kooijmans; In its Order, the Court first emphasizesthat it is "deeply

AGAINST: Judges Shi, Vereshchetin; Judge ad hoc concerned with the human tragedy, the loss of life, and the
Kreca; enormous sufferingin Kosovo which form the background"
(2) By fourteenvotes to one, of the dispute and "with the continuing loss of life and
Reserves the subsequent procedure for further human sufferingin all parts of Yugoslavia". It declaresitself
"profoundlyconcernedwith the use offorce in Yugoslavia",
decision. which "under the present circun~stances ...raises very
IN FAVOUR: Vice-President Weeramantry, Acting serious issues of international law". While being "mindful
President; President Schwebel; Judges Bedjaoui,
Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, of the purposes andprinciples of the UnitedNations Charter
Koroma, Vereshchetin, Higgins, Parra-Aranguren, and of its own responsibilities in the maintenance of peace
Kooijmans;Judge adhoc Kreca; and security under the Charter and [its] Statute", the Court
"deems it necessary to emphasize that all parties before it
AGAINST:Judge Oda." must act in conformity with their obligations under the
United Nations Charter and other rules of internationallaw,
includinghumanitarianlaw".

'TheCourt then points out that it "does not automatically
Vice-President Weeramantry, Acting President, Judges have jurisdiction over legal disputes between States" and
Shi, Koroma and Vereshchetinappended declarationsto the that "one of theindamental principles of its Statute is that
Court's Order. Judges Oda, Higgins,Parra-Aranguren and it cannot decide a dispute between States without the
Kooijmans appendedseparate opinions.Judge ad hoc Kreca consent of those States to itsjurisdiction". It cannot indicate
appendeda dissentingopinion. provisional measures without its jurisdiction in the case

being establishedprima facie. Conceining the first basis of jurisdiction ijnvoked,the any specific evidence of violations of the Convention and
Court observes that the United Kingdom contended that its has not establishedthe intent required thereunder. It appears
declaration contains reservations. Under tlie tenns of one of to the Court that, according to tlie Convention. the essential
those reservations, the United Kiiigdo~ndoes not recognize characteristic of genocide is tlie intended destruction of a
tlie jurisdiction of the Court in respect of "'disputes in national, ethnical,racial or religious group; the Court further

respect of which any other F'artyto the dispute has accepted states tliat "the threat or use of force against a State cannot
the compulsoryjurisdictioii of the ...Court ...in relation to in itself constitute1 act of genocide within the meaning of
or for the purposes of the dispute; or where the acceptance Article I1 of the Genocide Convention". It adds that in its
of the Court's coinpulsory jurisdiction on belnalf of any opinion, it does not appear at the present stage of tlie
other Party to tlie dispute wiisdeposited or ratified less than proceedings that the bombings which form the subject of the
12 nioiithsprior to the filing of the applicatioiibringing the Yugoslav Application "indeed entail tlie element of intent,
dispute before the Court". The Court notes that Yugoslavia towards a group as such, required by the provision"

deposited its declaration of' acceptance of the compulsory mentioned above. Tlie Court coiisiders therefore that it is
jurisdiction of theCourt with the United Nations Secretary- not in a position to find, at this stage of tlieproceedings, that
General 01126 April 1999aindtliat it brought the dispute to the acts imputed by Yugoslavia to the United Kingdom are
tlieC,ourton 29 April 19951.It states that then: call be no capable of coining within the provisions of the Genocide
doubt that the conditions for the exclusion of the Court's Convention; and Article IX cannot accordiiigly constitute a
jurisdiction provided for in the declaration of the United basis on which tlie jurisdiction of the Court could priina
Kingdoin are satisfied. The Court coacludas tliat the facie be founded in the case.

declarations made by the Parties iiianifes.tly cannot The Court concludes that it "lacks prima facie
constitute a basis of jurisdiction in tlie case, even priina jurisdiction to,entertain Yugoslavia's Application"and that
facie. it "cannot therefore indicate any provisional measure
At;to the United Kingdom's argument that Yugoslavia is whatsoever". However, the findings reached by the Court
not a -memberState of the United Nations in view of United "in no way prejudge the question of the jurisdiction of the
Nations Security Council resolution 777 (1992) and United Court to deal with the merits of the case" and they "leave

Nations General Assembly resolution 4711 (1992), nor a unaffected the right of the Governments of Yugoslavia and
party to the Statute of the Court, so that Yugoslavia could the United Kingdom to submit arguments in respect of those
not establish a jurisdictional link with parties to the Statute questions".
by making a declaration accepting the compulsory The Court finally observes that "there is a fundamental
jurisd:ictionof the Court, the Court maintains that it need not distinctionbetween the question of the acceptanceby a State
co~isitierthis question, taking illto accoui~tits finding that of the Court's jurisdiction and the compatibilityof particular
the declarationsdo not coiistitutea basis ofjuriscliction.
acts with international law". "Tlie former requires consent;
Conceriiing Article IX of the Genocide Convention, the the latter question can only be reached when the Court deals
Court states that it is not disputed that bothug;oslaviaand with the merits after having established its jurisdiction and
the United Kingdon1are parties to that Convention, without having heard full legal arguments by both parties." It
reservation, and that Article IX accordiiigly appears to emphasizes that "whether or not States accept the
constitute a basis on which the jurisdiction OF the Court jurisdiction of the Court, they remain in any event
might be founded. The Court however finds that it must responsible for acts attributable to them tliat violate

ascertain whether the breaches of the Conventiorlalleged by internatioi~allaw, includinghumanitarian law" and that "any
Yugo:jlavia are capable of falling within the provisions of disputes relating to the legality of such acts are required to
that instrument and whether. as a consequence, the dispute be resolved by peaceful means, the choice of which,
is one over which the Court might havejurisdiction rntione pursuant to Article 33 of the Cliai-ter,is left to the parties".
materine. In its Application, Yugoslavia coiiteilds that the In this context,"the parties should take care not to aggravate
subject of the dispute conceins inter alia "acts of the United or extend the dispute". The Court reaffirms that "when such
Kingdom ... by which it has violated its international a dispute gives rise to a threat to the peace, breach of the
obligation ...not to deliberately inflict conditions of life peace or act of aggression, the Security Council has special

calculated to cause the physical destruction of'a national responsibilitiesuiiderChapter VII of the Charter".
group". Itcontends that the sustained aiidintensivebombing
of the whole of its territoiy, including the inost heavily Declnration of'Vice-Presideiit Weel-umuntry
populated areas, constitutes '"aserious violation of Article1
of the Genocide Convention", that it is tlie Yugoslav nation Judge Weeramantry expressedthe view tliateven though
as a whole and as such tliat is targeted and tliat the use of the Court did not issue provisional measures, it still had the
certain weapons whose long-term hazards to health and the power to issue an appeal to both Parties to the effect that
they should act in accordance with their obligations under
environment are already known, and the destruction of the the Charter of the United Nations and other rules of
largest part of tlie country's power supply system, with
catast1:ophicconsequences o:Fwhich the Respoildentiiiustbe international law including humanitarian law anddo nothing
aware, "impl[y] the intent to destroy, in whole or in part", to aggravateor extend the conflict.
the Yugoslav national group as such.For its part, the Uiiited
Kingd.omemphasizes that Yugoslavia has failed to adduce It had this power as it was still seized of the case and jurisprudentially such measures were designed to prevent

would be so seized of it until the hearing, and because this violence, the use of force, to safeguard international peace
was not a case of manifest lack ofjurisdiction. and security as well as serving as an important part of tlie
He thought this was the appropriate course to be dispute settlement process under the Charter of the United
followed. The Court itself had referred to its profound Nations. In his view the indication of such measures
concern with the human tragedy and loss of life involved therefore represents one of the most important functioiis of
the Court.
and to its own responsibilities for the maintenance of peace
and security under the Charterand the Statuteofthe Court. But the granting of such a relief, lie stressed, could only
Such an appeal would also be well within the Court's be done in accordancewith the Statute of the Court. In this
inherent jurisdiction as inore fully explained in his regard, and in the light of the jurispiudence of tlie Court,
dissentingopinion in Yugoslaviav. Belgium. where prima facie jurisdiction is absent or other
circumstances predominate, the Court will not grant the
Such an appeal would cany more value than the mere request forprovisionalmeasures.
referenceto these matters in the Orderitself.
Nt:vertlieless, he considered the Court, being the
Declaratioil of'J~~dge Shi princi.pa1judicial organ of the United Nations, whose
primary raison dYCtre remains the preservation of
Judge Shi agrees with the majority that in the cases of international peace and security, to be under a positive
Yugoslavia against France, Germany, Italy and the United obliga.tionto contribute to the maintenance of international
Kingdom there is no prima facie jurisdiction, and in the
peace and security and to provide a judicial framework for
cases of Yugoslavia against Spain and the United States not the resolution of a legal conflict, especially one which not
even prima facie jurisdiction, for the indication of only threatens international peace and security but also
provisionalmeasuresrequested by the Applicant. involves enormous human suffering and continuing loss of
Nevertheless, he is of the opinion that, being confronted life. He had thereforejoined with the other Members of the
with a situation of great urgency arising from the use of Court in calling for the peaceful resolution of this conflict
pursuant to Article 33 of the Charter, and in urging the
force in and against Yugoslavia, and upon receipt of the
requests by the Applicant for the indication of provisional Parties not to aggravate or extend the dispute and torespect
measures, the Court ought to have issued a general international law, including humanitaria11 law and the
statement appealing to the Parties to act in compliance with human rights of all the citizensof Yugoslavia.
their obligations under tlie United Nations Charter and all
other rules of international law relevant to the situation, and Declaratioi~ of Judge Vereshchetin
at least not to aggravate or extend their dispute, regardless
The extraordinary circumstances in which Yugoslavia
of what might be the Court's conclusion on prima facie made its request for interim measures of protection imposed
jurisdiction pending its final decision. a need to react immediately. The Court should have
Nothing in the Statute or Rules of Court prohibits the
Court from so acting. Also, given the responsibilitiesof the promptly expressed its profound concern over the unfolding
Court within the general framework for the maintenance of human misery, loss of life and serious violations of
international law which by the time of the request were
peace and security under the Charter, and under the Statute already a matter of public knowledge. It is unbecoming for
as an integralpart of the Charter, to issue such a statement is the principal judicial organ of the United Nations, whose
within the implied powers of the Court in the exercise of its very raison d'Ctreis the peaceful resolution of international
judicial functions.Obviously,the Court has failed to take an disputes, to maintain silence in such a situation. Even if
opportunity to make its due contributionto the maintenance
of peace and security when that is most needed. ultimatelythe Court may cometo the conclusionthat, due to
constraints in its Statute, it cannot indicate fully fledged
Moreover, in spite of the request of Yugoslavia that the provisional measures in accordance with Article 41 of the
Court exercise its powers under Article 75, paragraph 1,of Statutein relation to one or another of the respondent States,
the Rules of Court to decide proprio nlotzrYugoslavia's the Clourt is inherently empowered, at the very least,
request to indicate provisional measures, the Court failed to immediately to call upon the Partiesneither to aggravate nor
exercise that power, in contrast to its decision to make use
of that power in the recent LaGrclndcase (Germany v.the to extend the conflict and to act in accordance with their
United States of America) in a situatioil not as urgent as in obliga.tionsunder the Charter of the United Nations. This
power flows from its responsibility for the safeguarding of
the present case. international law and from major considerations of public
For these reasons, Judge Shi felt compelled to vote order. Such an authoritative appeal by the "World Court",
againstoperative paragraph (1) of the six Orders. which would also be consistent with Article41 of its Statute
and Article 74, paragraph 4, and Article 75, paragraph I, of

Declaration of Judge Koroma its Rules, could have a sobering effect on the parties
In his declaration Judge Koroma observed that these involved in the military conflict, unprecedented in European
history sincethe end ofthe Second World War.
were perhaps the most serious cases that have ever come The Court was urged to uphold the rule of law in the
before the Court for provisional measures. He stated that context of large-scale gross violations ofiilternational law, inclu,dingof the Charter of'the United Nations. Instead of all the other cases, the Applications should be dismissed at
acting expeditiously and, if necessary,roprio motu, in its this stage, given that the Court has found that there isilot

capacityas "the principal guardianof intelmatioi.lallaw", the even aprima faciebasis ofjurisdiction.
majority of the Court, more than one month after the Judge Oda also points out that. while theCourt makes a
requests were made, rejected them in a sweeping way in distinctionbetween theApplications, even though they deal
relation to all the cases brought before theCourt, including virtually with the same subject matter, this distinction,
those where the prima facie jurisdiction of the Court could which came about simplybecause of thc differcntpositions
have been clearly established. Moreover, this ,decisionhas which individual States happened to take towards the
been taken in a situation in which deliberate intensification
various instruinents that are to be applied conceimingthe
of bombardment of the most heavily populated areas is Court's jurisdiction,will leadto differingresults concerning
causing unabated loss of life amongst non-combatants and the future proceedings in each of the cases. In Judge Oda's
physical and mental ham to the population in all parts of view this is an illogical situation. which supports his
Yugc~slavia. contention that all ten cases should be dislnissed in their
For the foregoing reasons, Judge Vereshchetin cannot entiretyat this stage.

concur with the inaction of the Court in this matter,
although he concedesthat in some of the cases institutedby Separate opiniorzof'JtrdgeHiggiizs
the Applicant the basis of the Court's jurisdic.tion,at this
stage of the proceedings, is opento doubt, and in relation to Judge Higgins in her separate opinions addresses two
Spainand the UnitedStatesis noa-existent. issues that arise in relation to those cases where the Federal
Republic of Yugoslavia claims jurisdiction on the basis of
Article 36, paragraph 2, of the Statute. The first issue
concelns temporal limitations to so-called "optional
Judge Oda supports the decision of the Court in clauses", andin particular the question of when a dispute

dismissing the requests for the indication of provisional arises and when the relevant events have occurred. These
measuresby the Federal Republic of Yugoslaviii againstten concepts are analysed in connection withYugoslavia's own
respondent States.While favouringthe decisionof the Court declaration. The second issue addresses the question of
to rernove thecase from the General List of the Coult in the exactly what has tobe shown for the Court to be satisfied it
cases of Spain and the United States, Judge Oda voted has prima facie jurisdiction when it is considering the
against the decision in the other eight cases i;l which the indicationof provisional measures. It is suggestedthat some

Court:ordered that it "[r]eserves the subsequei~tprocedure jurisdictional issues are so coillplex 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. whether or not it has prima facie jurisdiction for the
Judge Oda considers that the Federal Republic of purposesof Article41.
Yugoslavia is not a Member of the United Nations and thus

not a party to the Statute of the International Court of Separate ol>iniorzof'JurlgePrr1.m-Ai.ang~irerz
Justice. The Applicationspresented by the Federal Republic JudgeParra-Arangurenrecallsthat Yugoslaviamaintains
of Yugoslavia shouldtherefore be declared inadmissiblefor
this reason alone and should be removed from the General that "the bombing of Yugoslav populated areas constitute a
List ofthe Court. breach of Article TI of the Genocidc Convention". a
He aeveitheless then goes on to discuss whether, if the contention denied by the Respondent; that a legal dispute
exists between the Parties because of the existence of "a
Federal Republic of Yugoslavia were to be considered a situation in which the two sides holdclcarly opposite views
party to the Statute, it could have brought the present concelning the question of the perfomlance or non-
Applications on the basis of certain legal instruments.After performance of certain treaty obligations", as the Court
having examined the meaning of (i) the optional clause of
the Court's Statute, (ii) the background to the 1930 and stated in its decision of 11 July 1996 (jpplicrrtion of'the
1931 instruments with B,elgium and the Netherlands, Conventionon thePreventioiicrndP~~tlisl~nieo j'ttke Ci-iine
of Genocide (BosniaandHerzegoviiluv. Y~~goslcrvicIr.) C..J.
respectively, and (iii) the 1948 Genocide Convention, he Reports 1996 (10, pp. 614-615, para.29); and that according
reaches the conclusion that none of these instruments grant to Article IX of the Genocide Convention, "disputes
the Courtjurisdiction in any of the tenApplications. betweenthe ContractingParties relating to the interpretation
Judge Oda agrees with the Courtthat, as it has no basis or fulfilment of the present Convention"shall be submitted
of jurisdiction, itust reject the requests for the indication
of provisional measures ill all ten cases. However, he to the International Court of Justice. Therefore, in his
opinion the Court has prima facie jurisdiction to decide
considers that, the Court 'havingdecided that it has no upon theprovisional ineasuresrequestedby Yugoslavia.
jurisdiction to entertain the cases, notn prima facie, that Yugoslavia requested the Court to indicate that the
this c.anonly mean that it has nojurisdiction whatsoever in Respondent"shall cease immediately theacts of use of force
any of the cases. It follows, in Judge Oda's viow, that not
only i.nthe cases of Spain and the United States, in which and shall refrain from any act of threat or use of force
the Court states that it manifestly lacksjurisdiction. but in against the Fedesal Republic of Yugoslavia". However, thethreat or use of force against a State cannot in itself 5. Judge Kooijn~ansis of the view that the Court's
constitute an act of genocide within the meaning of the reasoning in this respect is inconsistent. Such other grounds
Genocide Convention. Consequently, Yugoslavia is only become relevant if the validity of the declaration at
requestingthe indicationof provisioilalmeasuresthat do not least for the present stage of the proceedings is accepted.
aim to guarantee its rights under the Genocide Convention, The Court's reasoning isbased on a presumption of validity
i.e., the right 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.
opinion of Judge Parra-Aranguren, the measures requested 6. According to Judge Kooijmans there certainly was
byYugoslavia should notbe indicated. no need for the Court to take a definitive stand on
Yugoslavia's membershipof the United Nations.He is fully
Separate opinion of'Judge Kooijmaizs aware that resolution 4711 is unprecedented and raises a
number of highly complex legal questions, which require a
1. Judge Kooijmails joined a separate opinion to the
Order of tlie Court in the cases of Yugoslavia versus thorough analysis and carefill evaluation by the Court at a
Belgium, Canada, the Netherlands, Portugal, Spain and the later stageof the proceedings.
Ilifficult though the question may be, the relevant
UnitedKingdom,respectively. 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
jurisdiction of the Court of 25 April 1999cannot provide a membership (Security Council and General Assembly) and
basis of jurisdiction in the present case, even prima facie, they cannotbe overlookedor ignored.
7. According to Judge Kooijmans the doubts, raised by
because of the reservations incorporated in the declarations the decisions of the competent United Nations bodies with
of Spain and the United Kingdom, cq. because of the regard to Yugoslavia's membershipand the ensuing validity
temporal limitation contained in Yugoslavia's declaration
(cases against Belgium, Canada, the Netherlands and of its declaration, are, however, so serious that the Court
Portugal). He is of the view that the Court lacks prima facie sho111dhave concluded that this declaration cannot provide
jurisdiction because of the controversial validity of it with a basis for prima faciejurisdiction. The Court should
Yugoslavia's declaration. This validity issue constitutes a not indicateprovisional measures unless its competence to
entertain the dispute appears to be reasonablyprobable and
preliminary issue and should, therefore, have been dealt this test of reasonable probability cannot be passed because
with by the Courtas a thresholdquestion. of the doubtfulvalidity of 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 temporal limitationson which the cases were decidedby the
Court, become irrelevant since they are wholly conditioned
jurisdiction of the Court, there is no need for a separate by the preliminaryquestionof the declaration's validity.
opinion in those cases.
2. Article 36, paragraph 2, of the Statute explicitly
states that only States which are party to the Statute can Dissenting opinion of Judge Kreca
recognize the compulsory jurisdiction of the Court by
depositing a declaration of acceptance with the Secretary- In his dissenting opinion Judge Kreca points out the
followingrelevant issues:
General of the United Nations. Member States of that Judge Kreca finds that none of the equalizationfunctions
organization are eo @so party to the Statute. All six of the institution of judge ad hoc have been met in this
Respondents contended, that since the Federal Republic of particular case. The letter and spirit of Article 31,graph
Yugoslavia is not a Meinber of the United Nations, its 2, of the Statute of the Court, appliedto this particular case,
declarationof acceptancehas not been validlymade.
imply the right of Yugoslavia, as the applicant State, to
3. On 22 September 1992the GeneralAssembly, on the choose as many judges ad hoc to sit on the Bench as is
recommendatioil of the Security Council, decided that the necessaryto equalizethe position of applicant State and that
Federal Republic of Yugoslavia cannot continue of the respondent States which have judges of their
autolnatically the membership of the former Socialist nationality on the Bench andwhich share the same interest.
Federal Republic of Yugoslavia and therefore that it should In concreto, the inherent right to equalization in the
apply for membershipin the UnitedNations. Until thattime
it shall not participate in the work of the General Assembly con~position of the Bench, as an expression of a
fundamental rule of equality of parties, means that the
(res. 4711). The Federal Republic of Yugoslavia never Federal Republic of Yugoslavia should have the right to
applied for membership. choose five judges ad hoc, since even five out of ten
4. In its present Ordersthe Court avoids the questionof respondent States (United States, the United Kingdom,
the contested validity of Yugoslavia's declaration. It takes France, Germany, and the Netherlands) have their national
the position that it need not consider this issue since the judges sittingon the Bench.

declaration cannot provide the Court with a basis for prima At the sametime, accordingto coherentjurisprudence of
faciejurisdiction on othergrounds. the Court, none of the respondent States were entitled to
appoint a judge ad hoc (Territorial Jzirisdictioi~of theliztern~rtioi~alCoinn~issionof the River Oder; Customs have answeredthe questionwhether the FederalRepublic of
Rigime betweenGermanyan,dAzutrin). Yugoslavia can or cannot, in the light of the content of
There is no need to say that the above-mentionedissues General Assemblyresolution 4711 and of the practice of the
world Organization, be considered to be a Member of the
are of upmost specific weight in view of the fact that
obviously the meaning of such issues is not restricted to the United Nations and especially party to the Statute of the
procedure, but that it may have a far-reaching concrete Court; namely the text of resolutio4711 makes no mention
meaning. of the status of the Federal Republic of Yugoslavia as a
Judge Kreca finds that in the recent practice of the party to the Statute of the International Court of Justice.
Judge Kreca is equally convinced that, especially because
Court, in particular that in which individuals were directly the Court should have answered that question, both the
affected, a high standard of' humanitarian concern in the
proceedings for the indicationof interim measures has been content of the resolution which represents coiztl-udictioiir
formed., a standard which cominanded su~fficierltinherent ndiecto and in particular the practice of the world
strength to brush aside some relevant, both procedural and Organizationafter its adoptionover a period of nearly seven
material, rules governing the institution of provisional years, offeredainple argulnents for it to pronounce itself on
measures (exm)ipli cnlaa, the LaGrnnd case). Thus, this matter.
Judge Kreca is of the opinion that the extensive use of
humanitarian considerations, independently from the nornls
of inte:mationallaw regulating human rights antl liberties, anned force, in particular if it is used against objects and
have, ima way, gained autononlous legal significance; they means constituting conditions of normal life, can be
have transcended the moral and philanthropic sphere, and conducive to "inflicting on the group conditions of life"
entered the sphereof law. bringing about "its physical destruction" (Genocide
Convention,Article 11).
In t'hecase at hand, it seemsthat humani it ar^^ncern"
has lost the acquired autonomous legal position. The fact Judge Kreca goes on to say that it can be argued that
needs to be stressed in viewof the special circun.~stancof such acts are in the function of degrading the military
this case. Unlike the recent practice of the Court, capacityof the FederalRepublicof Yugoslavia.But suchan
"humanitarian concern"has as its object the fate of an entireexplanation can hardly be regarded as a serious argument.
nation, in the literal sense:. The Federal Republic of For the spiralof sucha lineof thinkingmay easily cometo a
Yugoslavia and its national and ethnic groups :havebeen point when, having in mind that military power is after all
colnprised of people, even mass killing of civilians can be
subjected for more than two months now to continued
attacks of a very strong, highly organized air armada of the claimed to constitute some sort of precautionary measure
most powerful States of the world. At the same time, the that should prevent the maintenance or, in case of
arsenal used in the attacks on Yugoslavia contains also mobilization, theincreaseof militarypower of a State.
weapons whoseeffectshave no li~nitationseither in spaceor Judge Kreca also points out that. in the incidental
in time such as depleted uranium which cause far-reaching proceedingsthe Court cannot and should not concern itself
and irreparable damage to the health of t'ie whole with thedefinitivequalificationof the intentto impose upon

population. the group conditions in which the survival of the group is
Judge Kreca finds that, as regards the membership of threatened. Having in mind the purpose of provisional
Yugoslavia in the United Nations, the Court remained measures,it can be said thatat this stage of the proceedings
consistent with its "avoidance" position, persisting in its it is sufficient to establish that, in the conditions of
statement that it "need not consider this question for the 'extensivebombing, there is an objective risk of bringing
purpose of deciding whether or not it can indicate about conditions in which the survival of the group is
.threatened.
provisional measures in the present case. But it is the
profouc~dcoilviction of Judge:Kreca that the con^-tshould